author: WIENER, Circuit Judge: EDITH BROWN CLEMENT, Circuit Judge,

text:
    Phillip TURNER, Plaintiff-Appellant v. LIEUTENANT DRIVER, in his individual capacity; Officer Grinalds, Badge Number 3825, in his individual capacity; Officer Dyess, Badge Number 2586, in his individual capacity, Defendants-Appellees
    No. 16-10312
    United States Court of Appeals, Fifth Circuit.
    February 16, 2017

      Kervyn Bryce Altaffer, Jr., Esq., Lunb-ing Chen, Altaffer & Chen, P.L.L.C., Dallas, TX, Meagan Elizabeth Hassan, De-mond & Hassan, P.L.L.C., Houston, TX, for Plaintiff-Appellant.
    Luis Alfredo Galindo, Fort Worth, TX, for Defendant-Appellee LIEUTENANT DRIVER.

      Kenneth E. East, Esq., Foster & East, North Richland Hills, TX, for Defendant-Appellee OFFICER GRINALDS.
    Dee Lee Thomas, Jr., Law Office of D. Lee Thomas, Fort Worth, TX, for Defendant-Appellee OFFICER DYESS.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   WIENER, Circuit Judge:

Plaintiff-Appellant Phillip Turner was video recording a Fort Worth police station from a public sidewalk across the street when Defendants-Appellees Officers Grinalds and Dyess approached him and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers’ supervisor, Defendant-Appellee Lieutenant Driver, arrived on scene and, after Driver checked with Grinalds and Dyess and talked with Turner, the officers released Turner. He filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. Each officer filed a motion to dismiss, insisting that he was entitled to qualified immunity on Turner’s claims. The district court granted the officers’ motions, concluding that they were entitled to qualified immunity on all of Turner’s claims against them. Turner timely appealed. We affirm in part and reverse and remand in part.

I.

Facts and Proceedings

A. Facts

In September 2015, Turner videotaped the Fort Worth Police Station from a public sidewalk across the street from the station. He was unarmed. While videotaping, Turner observed Fort Worth Police Officers Grinalds and Dyess pull up in a patrol car in front of the station, get out, and approach him.

Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner wás being detained.for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he'was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, ‘We have the right and authority to know who’s walking around our facilities.”

Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.”

Turner requested to see a supervisor. Grinalds continued to ask for Turner’s ID and told him that he would be fingerprinted so the officers could learn his identity. The officers placed the handcuffed Turner in the back of their patrol car and “left him there to sweat for a while with the windows rolled up.” Turner alleges that no air was getting to the back seat and that he banged on the door so the officers would roll down the -windows.

Lieutenant Driver approached Grinalds and Dyess, and they “seemingly ignored Mr. Turner.” The three officers then rolled down the windows of the patrol car and found Turner lying down in the back seat. Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.”

Driver walked away and talked with the officers, then returned to the. patrol car and talked with Turner. Turner said, “You guys need to let me go because I haven’t done anything wrong.” Driver again walked away from the car, talked on the phone, and spoke further with the officers. They returned to the ear and took Turner out of the back seat. Driver “lectur[ed]” Turner, and the officers finally released him and returned his camera to him.

B. Proceedings

In October 2015, Turner filed suit in the Northern District of Texas against Driver, Grinalds, and Dyess (collectively, “defendants”) in their individual capacities. Each officer filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Turner filed an amended complaint in January 2016, adding the City of Fort Worth as a defendant. Turner brought claims under 42 U.S.C. § 1983 against all defendants, alleging that they violated his First, Fourth, and Fourteenth Amendment rights. Turner sought compensatory damages, punitive damages, attorneys fees and costs, and declaratory judgment that the defendants had violated his constitutional rights.

The three officers filed motions to dismiss Turner’s amended complaint. The district court granted the motions to dismiss on the basis of qualified immunity. The court reasoned that Turner failed to meet his burden of showing that the defendants were not entitled to qualified immunity because he failed to show that their actions violated any of his clearly established statutory or constitutional rights or that their actions were objectively unreasonable. Turner timely appealed.

II.

Standard of Review

We review a district court’s grant of a motion to dismiss based on qualified immunity de novo. We accept all well-pleaded facts as true and view them in the light most favorable to the non-movant. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Although a complaint “does not need detailed factual allegations,” the “allegations must be enough to raise a right to relief above the speculative level.” “[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”

III.

Analysis

“To state a claim under 42 U.S.C. § 1988, a plaintiff must first show a violation of the Constitution or of federal law, and then show that the violation was committed by someone acting under color of state law.” “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.” When a defendant raises a qualified immunity defense, the plaintiff has the burden of demonstrating the inapplicability of that defense. To meet this burden, the plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Like the district court, we have the discretion to decide which prong of the qualified immunity analysis to address first.

A. First Amendment

The district court concluded that the defendants were entitled to qualified immunity on Turner’s First Amendment claim because he failed to demonstrate that the defendants’ actions violated a clearly established right or that their actions were objectively unreasonable. In particular, the district court ruled that a First Amendment right to video record police activity was not clearly established. The district court’s analysis rested on the second, “clearly established,” prong, so we begin there.

1. Whether the Right Was Clearly Established in September 2015

For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Thus, the right must already be clearly established “at the time of the challenged conduct.” When considering whether a defendant is entitled to qualified immunity, the court “must ask whether the law so clearly and unambiguously prohibited his conduct that ‘every reasonable official would understand that what he is doing violates [the law].’ ” “To answer that question in the affirmative, we must be able to point to controlling authority — or a robust consensus of persuasive authority — that defines the contours of the right in question with a high degree of particularity.” “Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established. This is true even when the circuit split developed after the events in question.” As the Supreme Court has explained, “[i]f judges ... disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections ... extend[ ] to gathering information” does not demonstrate whether the specific act at issue here — video recording the police or a police station — was clearly established.

The district court stated that circuit courts “are split as to whether or not there is a clearly established First Amendment right to record the public activities of police.” The circuit courts are not split, however, on whether the right exists. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties. In American Civil Liberties Union v. Alvarez, the Seventh Circuit explained that the First Amendment protects the audio recording of the police and concluded that an Illinois wiretapping statute, which criminalized the audio recording of police officers, merited heightened First Amendment scrutiny because of its burdens on First Amendment rights. No circuit has held that the First Amendment protection does not extend to the video recording of police activity, although several circuit courts have explained that the law in their respective circuits is not clearly established while refraining from determining whether there is a First Amendment right to record the police.

We cannot say, however, that “existing precedent ... placed the ... constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’ ” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities. All three officers are entitled to qualified immunity on Turner’s First Amendment claim.

2. Whether the Right Is Clearly Established Henceforth

Although the right was not clearly established at the time of Turner’s activities, whether such a right exists and is protected by the First Améndment presents a separate and distinct question. Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

The First Amendment protects freedom of speech and freedom of the press. But “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” News-gathering, for example, “is entitled to first amendment protection, for ‘without some protection for seeking out the news, freedom of the press could be eviscerated,’ ” even though this right is not absolute. The Supreme Court has also recognized a First Amendment right to “receive information and ideas,” and there is “an undoubted right to gather news from any source by means within the law.” Furthermore, the Supreme Court has long recognized that the First Amendment protects film. A corollary to this principle is that the First Amendment protects the act of making film, as “there is no fixed First Amendment line between the act of creating speech and the speech itself.” Indeed, the Supreme Court has never “drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation.”

In addition to the First Amendment’s protection of the broader right to film, the principles underlying the First Amendment support the particular right to film the police. “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing. As one court explainéd:

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Moreover, as the [Supreme] Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’ ” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.

Protecting the right to film the police promotes First Amendment principles.

We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police. As the First Circuit explained, “[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [basic First Amendment] principles.” This right, however, “is not without limitations.” Like all speech, filming the police “may be subject to reasonable time, place, and manner restrictions.” In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable. Nonetheless, we note that when police departments or officers adopt time, place, and manner restrictions, those restrictions must be “narrowly tailored to serve a significant governmental interest.” That said, to be constitutionally permissible, a time, place, and manner restriction “need not be the least restrictive or least intrusive means of serving the government’s interests.”

B. Fourth Amendment

Turner also insists that he has asserted plausible claims under § 1983, to which the defendants are not immune, viz., that the officers violated his Fourth Amendment rights to be free from (1) detention absent reasonable suspicion and (2) warrantless arrest absent probable cause. Because Lieutenant Driver did not arrive on scene until Officers Grinalds and Dyess had already handcuffed Turner and placed him in the back of the patrol car, we' first analyze whether Grinalds and Dyess are entitled to qualified immunity on Turner’s Fourth Amendment claims.

1. Officers Grinalds and Dyess

a. Detention

Turner alleges that Grinalds and Dyess’s initial questioning of him violated his Fourth Amendment right to be free from detention absent reasonable suspicion. “[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot’....” The Supreme Court has “said repeatedly that [when determining whether officers had reasonable suspicion, courts] must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Courts “consider only the ‘information available to the officer[s] at the time of the decision to stop a person.’ ”

Even if we assume arguendo that Grinalds and Dyess violated Turner’s Fourth Amendments rights by detaining him without reasonable suspicion, we cannot say that this detention was objectively unreasonable in light of clearly established law. An individual’s right to be free from detention absent reasonable suspicion was clearly established well before the actions giving rise to this case. “But this general claim — that a seizure under the . Fourth Amendment must be based on reasonable suspicion — is precisely the type of ‘general proposition’ that the Supreme Court has rejected.” Whether a right was clearly established at the time the defendant acted “requires an assessment of whether the official’s conduct would have been objectively reasonable at the time of the incident.” Courts “must ask whether the law so clearly and unambiguously prohibited his conduct that ‘every reasonable official would understand that what he is doing violates [the law].’ ”

“The Fourth Amendment is concerned with ensuring that the scope of a given detention is reasonable under the totality of the circumstances.” Turner alleges that, when Grinalds and Dyess approached him, he was videotaping the police station while walking on the sidewalk across the street during midday. Nothing in the amended complaint suggests that Turner was videotaping an arrest, a traffic stop, or any other action or activity being performed by the police in the course of their duties. On the contrary, Turner’s complaint states that he was filming only “the routine activities at the Fort Worth Police Department building.” On appeal, Grinalds and Dyess reference several attacks on police officers and police stations, including those in Dallas and Austin, and the resulting increase of security at police stations. “[I]t [is] appropriate for the police to take into account the location of the suspicious conduct and the degree of the potential danger being investigated. What is not suspicious in one location may be highly suspicious in another.” Turner’s filming in front of the police station “potentially threatened security procedures at a location where order was paramount.” An objectively reasonable person in Gri-nalds’s or Dyess’s position could have suspected that Turner was casing the station for an attack, stalking an officer, or otherwise preparing for criminal activity, and thus could have found Turner’s filming of the “routine activities” of the station sufficiently suspicious to warrant questioning and a brief detention. The officers’ detention of Turner under these circumstances was not “plainly incompetent” or a knowing violation of the law.

We cannot say that, when viewed in light of the totality of the circumstances, Grinalds and Dyess’s initial questioning or detention of Turner, before he was handcuffed, was objectively unreasonable in light of clearly established law. Accordingly, Grinalds and Dyess are entitled to qualified immunity on Turner’s claim that they violated his Fourth Amendment right to be free from detention absent reasonable suspicion.

b. Arrest

Turner also contends that the officers violated his Fourth Amendment right to be free from unlawful arrest. The parties dispute whether Turner’s detention amounted to an arrest. “A seizure rises to the level of an arrest only if ‘a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.’ ” The “reasonable person” is one who is “neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” When determining whether an investigative stop amounts to an arrest, “[t]he relevant inquiry is always one of reasonableness under the circumstances,” which must be considered on a case-by-case basis. “[UJsing some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect — whether singly or in combination — do not automatically convert an investigatory detention into an arrest requiring probable cause.” But, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”

Turner alleges that he was handcuffed and placed in the back of the patrol car, where the officers left him “for a while.” There is “no rigid time limitation” on investigative stops, but “[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Although Turner has not alleged the length of time that he was detained in the back seat of the patrol car, Grinalds’s and Dyess’s actions — handcuffing Turner and placing him in the patrol car — were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers. Based on the allegations of Turner’s complaint, the officers were not taking investigative steps to determine who he was (aside from repeatedly asking him for identification) or what threat he might have posed. Neither does anything in the amended complaint suggest that Turner had a weapon, was using his hands in a threatening way, or otherwise posed a threat that required such restraint. The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances. We conclude that a reasonable person in Turner’s position would have understood the officers’ actions “to constitute a restraint on [Turner’s] freedom of movement of the degree which the law associates with formal arrest.”

When a police detention amounts to a warrantless arrest, as Turner has alleged it did here, the arrest must be accompanied by probable cause. “Probable cause exists when the totality of facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” “The police may take reasonable actions under the circumstances to ensure their own safety, as well as the safety of the public, during an encounter with a suspect.”

Based on the allegations of Turner’s amended complaint, the officers lacked probable cause to arrest him, and the officers do not dispute this. Turner “did not make any threats” against the officers, “did not [attempt] to leave or flee,” and “did not take any aggressive actions.” The only potential reason the officers gave Turner for arresting him that can be gleaned from the amended complaint is Turner’s failure to identify himself: He alleges that, after he was handcuffed, Grinalds told him “[t]his is what happens when you don’t ID yourself.” But the police cannot arrest an individual solely for refusing to provide identification. We are satisfied that Turner has alleged a violation of his Fourth Amendment right to be free from unlawful arrest.

The Fourth Amendment right to be free from arrest without probable cause was clearly established at the time of Turner’s alleged arrest. None of the defendants contends that any of them had probable cause to arrest Turner or that an arrest would have been objectively reasonable in light of clearly established law. We are satisfied that no objectively reasonable person in these officers’ position could have believed that there was probable cause to arrest Turner under the circumstances alleged in the amended complaint. Grinalds and Dyess are therefore not entitled to qualified immunity at this stage of the litigation on Turner’s Fourth Amendment claim that the officers violated his right to be free from warrantless arrest absent probable cause.

2. Lieutenant Driver

Turner insists that Driver violated his Fourth Amendment rights by “continuing the unlawful seizure and subsequent handcuffing and arrest and keeping Turner locked in the back of the police car after Driver arrived on the scene.”

Supervisory officials are not liable under § 1983 for the actions of subordinates on any theory of vicarious liability. Accordingly, Driver is not liable for the actions of Grinalds and Dyess before he arrived on the scene. We thus must determine whether Turner has alleged a separate violation of his constitutional rights by Driver after he arrived and whether Driver’s actions were objectively reasonable when viewed in the light of clearly established law.

To be liable under § 1983, Driver must have been personally involved in the alleged constitutional deprivation or have engaged in wrongful conduct that is causally connected to the constitutional violation. Personal involvement of supervising personnel generally includes giving a “command, signal, or any other form of direction to the officers that prompted” the detention or arrest. According to Turner’s allegations, he was already in handcuffs and in the back seat of the patrol car when Driver arrived on scene. Turner asserts that Driver talked with Grinalds and Dyess and then approached Turner to determine what had transpired. The allegations of the amended complaint indicate that Driver investigated the situation immediately upon arrival by consulting with Grinalds and Dyess and talking with Turner, and then promptly released Turner. Turner has failed to allege any personal involvement in his arrest or any conduct on Driver’s part that indicates he unreasonably prolonged Turner’s detention or arrest. The facts alleged in Turner’s amended complaint demonstrate that Driver “diligently pursued a means of investigation that was likely to confirm or dispel [the officers’] suspicions quickly.” Turner has failed to allege that Driver violated Turner’s Fourth Amendment rights to be free from detention absent reasonable suspicion and from unlawful arrest. Even if Turner had sufficiently alleged a constitutional violation, Driver acted objectively reasonably in light of the circumstances— namely, by apprising himself of the situation and acting accordingly. Driver is therefore entitled to qualified immunity on Turner’s Fourth Amendment claims.

IV.

Conclusion

We affirm the district court’s grant of qualified immunity to Grinalds, Dyess, and Driver on Turner’s First Amendment claim and on his Fourth Amendment claim for unlawful detention. With respect to Turner’s Fourth Amendment claim for unlawful arrest, we affirm the district court’s grant of qualified immunity as to Driver, but we reverse as to Grinalds and Dyess and remand for further proceedings on that claim.

AFFIRMED in part; REVERSED and REMANDED in part.

EDITH BROWN CLEMENT, Circuit Judge,

dissenting as to Parts III.A.2 & III.B.l.b:

I respectfully dissent from the majority’s dicta purporting to clearly establish a First Amendment right to film the police and from the majority’s reversal of the district court’s grant of qualified immunity to Officers Grinalds and Dyess regarding Turner’s unlawful arrest claim.

The Supreme Court has repeatedly held that “qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” See, e.g., Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Supreme Court recently “reiterate[d] the longstanding principle that ‘clearly established law1 should not be defined ‘at a high level of generality.’ ” White v. Pauly, — U.S. -, 137 S.Ct. 548, 552, 196 L.Ed.2d 468 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). “[T]he clearly, established law must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

I

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly -established law” at such “a high level of generality.” White, 137 S.Ct. at 552.

A law is not clearly established unless and until there is “directly controlling authority” or “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Gonzalez v. Huerta, 826 F.3d 854, 858 (5th Cir. 2016) (emphasis omitted). To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

The majority does not determine that the officers here violated Turner’s First Amendment rights — perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station. Because the majority does not hold that the officers actually violated the First Amendment, “an officer acting under similar circumstances” in the future will not have violated any clearly established law. See White, 137 S.Ct. at 552.

II

The majority reverses the district court’s grant of qualified immunity to Officers Grinalds and Dyess regarding Turner’s unlawful arrest claim, holding that “it was clearly established that an officer could not prolong an investigative detention without an investigatory purpose.” But the majority “fail[s] to identify a case where an officer acting under similar circumstances as [Officers Grinalds and Dyess] was held to have violated the Fourth Amendment.” White, 137 S.Ct. at 552. Turner alleged only that he was in the police car “a while” — he failed to specify the length of the investigative detention. Perhaps more importantly, Turner clearly alleged that he “asked for a supervisor to come to the scene.” Neither Turner nor the majority identify any case clearly establishing that an officer violated the Fourth Amendment when he extended an investigative detention because the detained individual “asked for a supervisor to come to the scene.”

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de fac-to arrest. At the very least, Officers Gri-nalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor — especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street. Accordingly, I respectfully dissent from the majority’s reversal of the district court’s grant of qualified immunity to Officers Grinalds and Dyess on Turner’s unlawful arrest claim.

      . All facts derive from the plaintiff's amended complaint and, in this posture, are taken as true. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012).

      . Defendant City of Fort Worth did not file a motion to dismiss and is not a party to this appeal.

      . Although Turner alleged in the district court that the defendants violated his Fourteenth Amendment rights, he has not raised an issue on appeal regarding a Fourteenth Amendment claim.

      . The district court's analysis rested entirely on its determination that a First Amendment right to videotape police activity was not clearly established.

      . Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).

      . Id.

      . Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

      . id.

      . Id.

      . Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

      . Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

      . Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005).

      . Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

      . Atteberry, 430 F.3d at 253.

      . Whitley, 726 F.3d at 638 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)).

      . Morgan, 659 F.3d at 371.

      . Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

      . Lane v. Franks, - U.S. -, 134 S.Ct. 2369, 2381, 189 L.Ed.2d 312 (2014) (quoting al-Kidd, 563 U.S. at 735, 131 S.Ct. 2074).

      . Morgan, 659 F.3d at 371 (alteration in original) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074).

      . Id. at 371-72 (internal quotation marks omitted).

      . Id. at 372 (citation omitted).

      . Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); see also Morgan, 659 F.3d at 372.

      . Even intracircuit decisions in which courts determine that the right to record police activities is clearly established note that there is no controlling authority on this specific issue. See, e.g., Turner v. City of Round Rock, No. 15-CV-939-RP, ECF No. 43 (W.D. Tex. May 25, 2016) ("The Fifth Circuit apparently has not explicitly noted a right to film police or outlined the contours of such a right.”).

      . See, e.g., id.; Buehler v. City of Austin, No. 1:13-CV-1 100-ML, ECF No. 54 (W.D. Tex. July 24, 2014).

      . al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074.

      . Turner relies on cases such as Joseph Burs-tyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A Jan. 1981), and In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982), to support his assertion that the right to record police is clearly established under Supreme Court and Fifth Circuit precedent. None of the cases on which Turner relies, however, taken individually or collectively, demonstrates such a clearly established right. For example, in Joseph Burstyn, the Supreme Court limited its analysis to whether motion pictures fall within the scope of the First Amendment. See Joseph Burstyn, 343 U.S. at 501-02, 72 S.Ct. 111. Shillingford did not involve any First Amendment challenge. See Shillingford, 634 F.2d at 264-66. And In re Express-News pertained to a news reporter’s ability to interview jurors after they serve on a criminal trial. In re Express-News, 695 F.2d 807.

      . See, e.g., Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014) ("Recognizing that it is firmly established that the First Amendment protects 'a range of conduct' surrounding the gathering and dissemination of information, we held [in Glik v. Cunniffe] that the Constitution protects the right of individuals to videotape police officers performing their duties in public.”); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) ("The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert. denied, 531 U.S. 978, 121 S.Ct. 426, 148 L.Ed.2d 435 (2000) (holding that there exists "a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”).

      . Am. Civil Liberties Union v. Alvarez, 679 F.3d 583, 595-602 (7th Cir. 2012).

      . See, e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3d Cir. 2010) (holding that a First Amendment right to videotape police officers during traffic stops was not clearly established); Szymecki v. Houck, 353 Fed.Appx. 852, 853 (4th Cir. 2009) (per curiam) (noting that a First Amendment right to record police activities on public property was not clearly established); McCormick v. City of Lawrence, Kan., 130 Fed.Appx. 987, 988-89 (10th Cir. 2005) (explaining that it was not clearly established that police violated the First Amendment by destroying recordings of police activity at roadside sobriety checkpoints).

      . Morgan, 659 F.3d at 372 (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074).

      . Id. at 371 (second alteration in original) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074).

      . See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

        . Compare Basler v. Barron, No. 15-CV-2254, 2016 WL 1672573, at *3 (S.D. Tex. Apr. 27, 2016) ("It is well established that the gathering of information about government affairs or matters of public concern — including recording police activity — is protected by the First Amendment.”), and Buehler v. City of Austin, 2015 WL 737031, at *9 ("In light of the existing Fifth Circuit precedent and the robust consensus among circuit courts of appeals, the Court concludes that the right to photograph and videotape police officers as they perform their official duties was clearly established at the time of Buehler's arrests.”), aff'd on other grounds, 824 F.3d 548 (5th Cir. 2016); Turner, No. 15-CV-939-RP, ECF No. 43 at *11 ("The Fifth Circuit apparently has not explicitly noted a right to film police or outlined the contours of such a right. However, '[t]he First Amendment protects a private citizen’s right to assemble in a public forum, receive information on a matter of public concern — such as police officers performing their official duties — and to record that information for the purpose of conveying that information.’ ” (alteration in original) (quoting Buehler, 2015 WL 737031, at *7)), with Cadena v. Ray, No. 5:15-CV-552-DAE, 2016 WL 6330438, at *3 n.5 (W.D. Tex. Oct. 27, 2016) ("Since Cadena fails to otherwise show the existence of a clearly established right to videotape police operations, he has failed to meet his burden to overcome the assertion of qualified immunity.”), and Gravolet v. Tassin, No. 08-CV-3646, 2009 WL 1565864, at *3 (E.D. La. June 2, 2009) ("Even assuming that the plaintiff had the ‘clearly established right' to videotape Tassin while on duty, that right does not render the stalking statute inapplicable nor does a video camera immunize the plaintiff from such a charge.”).

      . U.S. Const. amend. I.

      . First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

      . In re Express-News, 695 F.2d at 808 (quoting Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)).

      . See Davis v. E. Baton Rouge Par. Sch. Bd., 78 F.3d 920, 928 (5th Cir. 1996).

      . Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (internal quotation marks omitted).

      . Houchins v. KQED, Inc., 438 U.S. 1, 11, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (internal quotation marks omitted).

      . See e.g., Kingsley Int’l Pictures Corp. v. Regents of Univ. of State of N.Y., 360 U.S. 684, 688, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959) ("What New York has done, therefore, is to prevent the exhibition of a motion picture because that picture advocates an idea — that adultery under certain circumstances may be proper behavior. Yet the First Amendment’s basic guarantee is of freedom to advocate ideas. The State, quite simply, has thus struck at the very heart of constitutionally protected liberty.”); Superior Films, Inc. v. Dep’t of

        Educ. of State of Ohio, Div. of Film Censorship, 346 U.S. 587, 589, 74 S.Ct. 286, 98 L.Ed. 329 (1954) (Douglas, J., concurring) (“Motion pictures are of course a different medium of expression than the public speech, the radio, the stage, the novel, or the magazine. But the First Amendment draws no distinction between the various methods of communicating ideas.''); Joseph Burstyn, 343 U.S. at 502, 72 S.Ct. 777 ("[W]e conclude that expression by means of motion pictures is included within the- free speech and free press guaranty of the First and Fourteenth Amendments.”).

        . Alvarez, 679 F.3d at 596 (citing Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1061-62 (9th Cir. 2010)); see also id. at 595 ("The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected....”).

      . Anderson, 621 F.3d at 1061-62.

      . Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

      . Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (citation omitted).

      . Glik, 655 F.3d at 82-83 (citations omitted).

      . See Alvarez, 679 F.3d at 595-96; Glik, 655 F.3d at 82, 85; Smith, 212 F.3d at 1333; see also Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).

      . Glik, 655 F.3d at 82.

      . Id. at 84.

      . See, e.g., Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 535-36, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (discussing history of time, place, and manner restrictions).

      . Glik, 655 F.3d at 84; see, e.g., Smith, 212 F.3d at 1333. “Importantly, an individual’s exercise of her First Amendment right to film police activity carried out in public ... necessarily remains unfettered unless and until a reasonable restriction is imposed or in place.” Gericke, 753 F.3d at 8.

      . See Glik, 655 F.3d at 84 ("We have no occasion to explore those limitations here, however.”).

      . McCullen v. Coakley, U.S. -, 134 S.Ct. 2518, 2529, 189 L.Ed.2d 502 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).

      . Id. at 2535 (internal quotation marks omitted).

      . United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This type of stop is also known as a “Terry stop.”

      . United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

      . Carroll v. Ellington, 800 F.3d 154, 171 (5th Cir. 2015) (alteration in original) (quoting United States v. Silva, 957 F.2d 157, 160 (5th Cir. 1992)), cert. denied, - U.S. -, 137 S.Ct. 492, 196 L.Ed.2d 403 (2016).

      . Gonzalez v. Huerta, 826 F.3d 854, 857 n.4 (5th Cir. 2016) ("We may proceed directly to the second prong of the qualified immunity analysis without explicitly ruling on the first.” (citing Pearson, 555 U.S. at 227, 129 S.Ct. 808)), cert. denied, - U.S. -, 137 S.Ct. 697, 196 L.Ed.2d 529, 2017 WL 69303 (U.S. 2017).

      . See U.S. Const. amend. IV; Ibarra v. Harris Cty. Tex., 243 Fed.Appx. 830, 833 (5th Cir. 2007) (per curiam) ("The law is clearly established that a detention is objectively unreasonable if the police officers lacks reasonable suspicion to believe that the person is engaged in criminal activity....” (citing Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979))).

      . Gonzalez, 826 F.3d at 857-58 (citing al-Kidd, 563 U.S. 731, 131 S.Ct. 2074); see Wilson, 526 U.S. at 615, 119 S.Ct. 1692 ("It could plausibly be asserted that any violation of the Fourth Amendment is 'clearly established,’ since it is clearly established that the protections of the Fourth Amendment apply to the actions of police.... However, ... the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.”).

      . Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004).

      . Morgan, 659 F.3d at 371 (alteration in original) (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074).

      . United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004) (en banc).

        .See, e.g., Jason Hanna and Joe Sutton, Dallas Police HQ Shooting: Suspect James Boulware Kitted During Standoff, CNN (June 13, 2015), http://www.cnn.com/2015/06/13/us/ dallas-police-headquarters-shooting ("A man unleashed a barrage of gunfire on Dallas’ police headquarters and planted explosives outside the building early Saturday.”); Austin Gunman Dead after Downtown Shooting Rampage, KXAN (Nov. 28, 2014), http:// kxan.com/2014/11/28/austin-poIice-shut-down-city-streets-for-activeshooter-investigation/ (“A gunman opened fire at four different buildings, including [Austin Police Department] headquarters.... An officer about to get off duty saw the suspect near [the police department] HQ and opened fire on the suspect who fell to the ground.”).
      "Specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy may be judicially noticed.” Weaver v. United States, 298 F.2d 496, 498 (5th Cir. 1962); see also United States v. Ramos, 629 F.3d 60, 66-68 (1st Cir. 2010) (concluding that the officers had reasonable suspicion that criminal activity was afoot under the totality of the circumstances, including that the officers “were particularly alert to the risk of attacks on public transit systems in light of the coordinated terrorist attacks on Madrid commuter rail trains ... less than three months earlier”).

      . Ramos, 629 F.3d at 66-67.

      . Mocek v. City of Albuquerque, 813 F.3d 912, 924 (10th Cir. 2015).

      . Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

      . See Carroll, 800 F.3d at 171 (concluding that, because the plaintiffs “have not shown that [the defendant] was objectively unreasonable in light of clearly established law in initially attempting to detain [the deceased] for investigatory questioning,” the defendant was entitled to qualified immunity).

      . Id. at 170 (quoting United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988)).

      . Corral-Franco, 848 F.2d at 540 (quoting United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988)).

      . United States v. Sanders, 994 F.2d 200, 206-07 (5th Cir. 1993).

      . Id. at 206.

      . Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

      . United States v. Sharpe, 470 U.S. 675, 685-86, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

      . The appellees rely on cases such as United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011); United States v. Maltais, 403 F.3d 550 (8th Cir. 2005); and Haynie v. Cty. of Los Angeles, 339 F.3d 1071 (9th Cir. 2003), to argue that their actions did not amount to a de facto arrest. These out-of-circuit cases, however, are inapposite. In Bullock, the defendant was handcuffed and placed in a patrol car for 30 to 45 minutes while the officers executed a search warrant for narcotics. Bullock, 632 F.3d at 1009, 1011. The Seventh Circuit found that, "while the facts ... approach the outer boundaries of a permissible Terry stop,” the defendant's seizure did not amount to a de facto arrest:
      Given that officers were conducting a search for drugs, it was reasonable to place [the defendant] in handcuffs and in the squad car for their safety while they pursued their investigation.... Drag crimes are associated with dangerous and violent behavior and warrant a higher degree of precaution. Officers could reasonably believe that [the defendant] was potentially dangerous and a flight risk because of his awareness of the search warrant, his association with the residence, and the officers’ reasonable suspicion that he was involved in narcotics distribution.

        Id. at 1016 (citation omitted). Here, there was no suspicion that Turner was involved in a drug-related offense, and nothing in the amended complaint suggests that the officers in this case shared any of the concerns that the officers in Bullock had.
      In Maltais, the Eighth Circuit held that a defendant’s detention in the back of a patrol car for 2 hours and 55 minutes was not unreasonable under the circumstances, as the defendant was in a remote and isolated rural area, only 500 yards from the Canadian border, at 1:00 a.m. Maltais, 403 F.3d at 557. The court went to lengths to explain that "[t]he officers acted with diligence and pursued the quickest and least intrusive means of investigation reasonably available to confirm or dispel their well-founded suspicions that [the defendant] was engaged in drug trafficking.” Id. at 558. Indeed, the court expressly stated that "a detention of this length would be unreasonable under different circumstances.” See also Haynie, 339 F.3d at 1077 (concluding that the handcuffing of the defendant for 16 to 20 minutes did not amount to a de facto arrest because the officer "appropriately restrained [the defendant] only to the extent necessary to complete his investigation into [a] report about men with guns”).

      . See Sanders, 994 F.2d at 206-07.

      . Carroll, 800 F.3d at 170 (internal quotation marks omitted); see also Massey v. Wharton, 477 Fed.Appx. 256, 261 (5th Cir. 2012) (per curiam) ("Tonia Massey was handcuffed and put in the back of a police car, she claims, for two-and-a-half to three hours. There is no indication that the police were investigating her for anything. Under these circumstances, any .reasonable officer should have known that Tonia Massey’s seizure required probable cause, not reasonable suspicion.”); Freeman v. Gore, 483 F.3d 404, 408-09, 413 (5th Cir. 2007) (finding that "a reasonable person in [the plaintiff's] situation would surely believe that she had been restrained to an extent that normally accompanies a formal arrest” because, the plaintiff alleged, she was threatened with arrest, handcuffed, and placed in the back of the patrol car for 30 to 45 minutes after she refused to let sheriff’s deputies search her home without a search warrant).

      . Freeman, 483 F.3d at 413.

      . Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004) (emphasis omitted) (quoting United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996)).

      . United States v. Abdo, 733 F.3d 562, 565 (5th Cir. 2013).

      . The officers argue only that the detention did not amount to an arrest. Counsel for Driver conceded at oral argument that, if Turner was arrested, the arrest would have been unlawful because the officers lacked probable cause.

      . Gonzalez, 826 F.3d at 858 (citing Brown, 443 U.S. at 52, 99 S.Ct. 2637 ("[E]ven assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, . the guarantees of the Fourth Amendment do not allow it."); Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 188, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)); see also Tex. Penal Code § 38.02(a).

      . Flores, 381 F.3d at 402 ("An arrest is unlawful unless it is supported by probable cause.”).

      . See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009).

      . See id. ("[E]ven law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.” (internal quotation marks omitted)).

      . We note the limited scope of our holding. We hold only that it was clearly established that an officer could not prolong an investigative detention without an investigatory purpose. Because the amended complaint does not allege that Turner posed any threat to the officers or that Grinalds and Dyess continued investigating while Turner was handcuffed in the back of the police car, Turner has pleaded a Fourth Amendment claim. Of course, at this stage of the proceeding, Grinalds and Dyess have not had the opportunity to explain their actions. As this case progresses, they will have the opportunity to explain why they handcuffed and detained Turner and provide evidence supporting their explanation. The facts that come to light through discovery might demonstrate that Turner’s detention did not amount to a de facto arrest or that Grinalds's and Dyess’s actions were not objectively unreasonable. Until then, however, qualified immunity is not proper.

        . Thompson v. Upshur Cty., Tex., 245 F.3d 447, 459 (5th Cir. 2001).

      . Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008).

      . Id.) see also Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (“To show personal involvement, the supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see.” (internal quotation marks omitted)); Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996) ("A plaintiff may satisfy [the personal involvement] standard by showing the defendant-supervisor personally directed the violation or had actual knowledge of the violation and acquiesced in its continuance.”).

        . Sharpe, 470 U.S. at 686, 105 S.Ct. 1568.


source: Caselaw Access Project

author: E. GRADY JOLLY, Circuit Judge:

license: Public Domain

text:
    Tina ALEXANDER; Sheila Alexis; Evelyn Baines; Shauntay Bennings; Nyo Haygood; Tabitha Henry; Cheyanne Jones; Roslyn Jones; Kendra Williams; Kyshia Woods; Zachary Baylor; Tracey Kennerly, Plaintiffs-Appellants v. AMERIPRO FUNDING, INCORPORATED; Amegy Bank National Association; Wells Fargo Bank, N.A., Defendants-Appellees
    No. 15-20710
    United States Court of Appeals, Fifth Circuit.
    Filed February 16, 2017

      Joseph Y. Ahmad, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, P.C., Houston, TX, for Plaintiffs-Appellants.'
    Daniel J.T. McKenna, S. Clifford Sacalis, Esq., Ballard Spahr, L.L.P., Philadelphia, PA, Elizabeth J. Lee, Ballard Spahr, L.L.P., Phoenix, AZ, Jon Maxwell Beatty, Diamond McCarthy, L.L.P., Derrick B. Carson, Attorney, Locke Lord, L.L.P., Houston, TX, Robert Thompson Mowrey, Johnathan E. Collins, Thomas F. Loose, Esq., Locke Lord LLP, Dallas, TX, for Defendants-Appellees.
    Thomas Macy McCray-Worrall, Nandan M. Joshi, Counsel, Tamra Tyree Moore, Trial Attorney, Consumer Financial Protection Bureau, Washington, DC, for Ami-cus Curiae.
    Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
   E. GRADY JOLLY, Circuit Judge:

The Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq., was enacted, in relevant part, in order to “promote the availability of credit to all creditworthy applicants without regard to ... the fact that all or part of the applicant’s income derives from a public assistance program.” See 12 C.F.R. § 202.1. The ECOA specifically makes it illegal “for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction ... because all or part of the applicant’s income derives from any public assistance program.” 15 U.S.C. § 1691(a)(2).

Plaintiffs are twelve individuals in the Houston, Texas, area who receive Section 8 housing assistance. Each plaintiff wanted to purchase a home, and each wanted to obtain a mortgage in order to finance their proposed purchase of a home. Each plaintiff either applied for a mortgage or sought information regarding a mortgage from either AmeriPro Funding, Inc., or Wells Fargo Bank, N.A.

Wells Fargo, they allege, was engaged in the business of investing in or buying mortgages originated by other financial institutions, including AmeriPro. AmeriPro, as an originator, interacted with borrowers, made credit decisions, and actually gave mortgages to home buyers. Wells Fargo, as a purchaser and investor in mortgages, promulgated guidelines for its secondary-market mortgage purchases, stating that it would only buy mortgages that are not based on Section 8 income.

Those plaintiffs who applied for mortgages with AmeriPro allege that, with the Wells Fargo guidelines in mind, AmeriPro refused to consider their Section 8 income in assessing their creditworthiness in its evaluation of their mortgage applications so that it could sell the mortgages to Wells Fargo on the secondary market.

Other plaintiffs applied directly to Wells Fargo in its capacity as a mortgage originator, and they allege that it similarly refused to consider their Section 8 income.

The plaintiffs filed suit against both Am-eriPro and Wells Fargo, claiming that they discriminated against them in violation of the ECOA on the basis of their receipt of public assistance income. The district judge granted defendants’ Rule 12(b)(6) motion and dismissed all of plaintiffs’ claims. Plaintiffs have timely appealed.

We affirm the dismissal of several, but not all, of plaintiffs’ claims: some plaintiffs failed plausibly to allege that they were “applicants” under the ECOA; some plaintiffs failed plausibly to allege that Wells Fargo was a “creditor” under the ECOA; and some plaintiffs failed plausibly to allege that Wells Fargo engaged in any discriminatory conduct against them. We hold, however, that some plaintiffs did plausibly allege ECOA violations by Amer-iPro, and reverse the district court’s dismissal of those claims. In short, we affirm in part and reverse and remand in part.

I.

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (citations and quotations omitted). Keeping in mind that the ECOA prohibits “discrimination] against any applicant, with respect to any aspect of a credit transaction ... because all or part of the applicant’s income derives from any public assistance program,” 15 U.S.C. § 1691(a)(2), we set forth the allegations in the plaintiffs’ Complaint.

As we have noted, plaintiffs are twelve individuals in the Houston, Texas area. All sought to qualify for a loan to purchase a home. All received public assistance income in the form of Section 8 housing vouchers, and all sought to use that income to make payments towards their desired new home mortgages.

The essence of the plaintiffs’ claim is that the lenders to whom they applied— defendants AmeriPro Funding, Inc. and Wells Fargo Bank, N.A. — refused, in violation of the ECOA, to consider their Section 8 voucher income in determining whether they were financially qualified for a loan. Plaintiffs claim that Wells Fargo had an explicit, publicly-available policy stating that in its secondary mortgage purchasing division — which would invest in or purchase mortgages originated by another financial institution — it would not purchase mortgages based on Section 8 income. As the Complaint alleges:

76. During all relevant periods of time, Defendant Wells Fargo Bank was a correspondent lender, who set up guidelines to purchase certain closed loans from creditors such as Defendant AmeriPro Funding.
77. In its capacity as a correspondent lender, Defendant Wells Fargo. Bank provided lending guides required to be utilized by creditors, such as Defendant AmeriPro Funding, seeking to sell its loans and in extending credit to applicants, such as Plaintiffs....
79. Wells Fargo Bank’s own publieally available policy states: Wells Fargo will not accept transactions including, but not limited to, the following:
FHA Section 8 loans Wells Fargo Funding Seller Guide 600.02(b).

It further alleges that AmeriPro, a mortgage originator, unlawfully refused to consider Section 8 income so that it could sell its newly-originated mortgages to Wells Fargo:

69. Additionally, Defendant AmeriPro Funding denied credit and financing to Plaintiffs ... because it claims it did not have an investor that would purchase a loan that allowed for their Section 8 income to be utilized in calculating the debt to income ratio and for qualifying purposes.
70. Because Defendant AmeriPro Funding would not use the Section 8 voucher in its loan decision, Plaintiffs ... could not secure a certain size mortgage....
72. Defendant AmeriPro Funding sold their mortgage loans to other financial institutions, including Defendant Wells Fargo Bank.
73. As part of the correspondent lending practices of Wells Fargo Bank, any loans that Defendant AmeriPro Funding sold to Defendant Wells Fargo Bank had to meet the lending guidelines for Wells Fargo Bank.
74. During the time of Plaintiffs’ loans and loan inquires made the basis of this lawsuit, Defendant AmeriPro Funding was informed by Defendant Wells Fargo Bank that the bank’s lending guidelines did not allow the receipt of Section 8 income to be considered as qualifying income for determining whether an applicant qualifies for a loan and the calculation of the amount the applicant would be able to borrow.

Under these broad allegations, the plaintiffs appear to fall into three distinct groups.

A.

The first group includes four plaintiffs— Alexander, C. Jones, Williams, and Woods — the “AmeriPro Applicants.” The AmeriPro Applicants allege that they actually applied for loans with AmeriPro:

75. At least four Plaintiffs (Tina Alexander, Cheyanne Jones, Kendra Williams and Kyshia Woods), ap- ■ plied for loans with Defendant Am-eriPro Funding which Defendant AmeriPro Funding processed with the intention of selling the loan to Defendant Wells Fargo Bank.

Each of the AmeriPro Applicants specifically alleges that she applied for a mortgage through AmeriPro, that the mortgage was processed with respect to Wells Fargo’s lending guidelines, that her Section 8 income was not included for consideration as part of the application, and that she obtained a mortgage on less favorable terms than if that income had been considered. For example:

85. Plaintiff Cheyanne Jones applied for a mortgage loan in approximately the summer of April 2012 with Defendant AmeriPro Funding which was processed using Defendant Wells Fargo Bank’s lending guidelines since Defendant Ameri-Pro Funding intended to sell this loan to Defendant Wells Fargo Bank.
86. Plaintiff Cheyanne Jones’ Section 8 income was not included for consideration as part of her mortgage application.
87. As a result of her Section 8 income not being considered as income on her mortgage application, Chey-anne Jones obtained less favorable mortgage terms and qualified for a mortgage at a lesser amount than if her Section 8 income had been considered.

Plaintiff Tina Alexander made similar allegations, but was even more specific:

84. ...
c. When Alexander was told that her Section 8 income would not qualify as income on her mortgage application, she was told she would not qualify for a thirty year mortgage with the payments she wanted, and a house at a certain price level; and after being told, that Alexander applied for a mortgage in accordance with the terms she was told she would qualify for without her section 8 income being considered as income on her mortgage application.

In sum, the AmeriPro Applicants allege that they applied for mortgages through AmeriPro and that AmeriPro did not consider their Section 8 income in processing the application because it intended to sell the mortgages to Wells Fargo.

B.

The second group includes six plaintiffs — Alexis, Baines, Bennings, Haygood, Henry, and R. Jones — the “AmeriPro Inquirers.”

The difference between the AmeriPro Inquirers and the AmeriPro Applicants is that the Inquirers never allege that they applied for mortgages with AmeriPro. These plaintiffs allege only that:

61. In addition to the foregoing allegations, [the AmeriPro Inquirers] also specifically requested financing and/or credit from Defendant Am-eriPro Funding through various employees, agents and servants.
62. [The AmeriPro Inquirers] contacted and made inquiry to Defendant AmeriPro Funding as to financing a home that each of them desired.
63. Based on information and belief to date, [the AmeriPro Inquirers] contacted Defendant AmeriPro Funding during various months of the calendar years 2011 to and including 2014....
69. Additionally, Defendant AmeriPro Funding denied credit and financing to [the AmeriPro Inquirers] ... because it claims it did not have an investor that would purchase a loan • that allowed for their Section 8 income to be utilized in calculating the debt to income ratio and for qualifying purposes.
70. Because Defendant AmeriPro Funding would not use the Section 8 voucher in its loan decision, [the AmeriPro Inquirers] ... could not secure a certain size mortgage....

In sum, the AmeriPro Inquirers allege that they requested information regarding mortgages from AmeriPro. The implication is that they did not apply for loans because they were discouraged from applying because their Section 8 income would not be considered.

C.

The third group consists of two plaintiffs — Baylor and Kennerly — the “Wells Fargo Applicants.”

The Wells Fargo Applicants did not approach AmeriPro at all. Indeed, they are not bringing any claims against AmeriPro. Instead, they applied directly to Wells Fargo in its capacity as a mortgage originator:

81. In addition Zachary Baylor and Tracey Kennerly, who applied for mortgage loans with Wells Fargo, were discriminated against by Wells Fargo’s refusal to consider Section 8 income or other public assistance for consideration in its mortgage loan decisions on the same basis as nonpublic assistance income....
94. Plaintiff Zachary Baylor applied for a mortgage loan in approximately 2011 with Defendant Wells Fargo Bank....
96. Plaintiff Zachary Baylor’s Section 8 and other public assistance income was not considered by Wells Fargo on the same basis as non-public assistance income for his mortgage application....
102. Plaintiff Tracey Kennerly applied for a mortgage loan in approximately early 2012 with Defendant Wells Fargo Bank....
104. Plaintiff Tracey Kennedy’s Section 8 income was not considered on the same basis by Wells Fargo as non-public assistance income for consideration] of her mortgage application.
105. Plaintiff Tracey Kennedy’s down payment housing voucher was not included for consideration by Wells Fargo as part of her mortgage application....
109. As a result of her Section 8 income not being considered on the same basis as non-public assistance income for the purpose of her mortgage application, Tracey Kennerly obtained less favorable mortgage terms and qualified for a mortgage at a lesser amount than if her Section 8 income had been considered equally as nonpublic assistance income....

In sum, the Wells Fargo Applicants allege that they applied directly for loans with Wells Fargo and — presumably based on the language in Wells Fargo’s guidelines for secondary mortgage purchases— claim that their Section 8 income was not considered.

We now turn to the proceedings before the district court.

II.

Plaintiffs filed suit in state court, alleging violations of the ECOA. Defendants removed to federal court on the basis of federal question jurisdiction. After plaintiffs amended their complaint three times, defendants moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion and dismissed all claims with prejudice.

First, the district court considered whether the plaintiffs’ claims plausibly satisfied the elements of the McDonnell Douglas “prima facie case” for circumstantial evidence in proving a discrimination claim! See Fierros v. Texas Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (“If the plaintiff seeks to establish causation by circumstantial evidence, the tripartite burden-shifting framework of McDonnell Douglas applies.”). The court found that they did not because plaintiffs failed to allege that they were treated differently from any similarly situated applicant. Second, the district court considered whether plaintiffs plausibly alleged enough direct evidence of discrimination to bypass the McDonnell Douglas framework. See Fierros, 274 F.3d at 192 (“If, on the other hand, the plaintiff presents direct evidence that the employer’s motivation for the adverse action was at least in part retaliatory, then the McDonnell Douglas framework does not apply.”). The district court again found that they did not. Satisfied that the plaintiffs had not sufficiently pled either circumstantial or direct evidence of discrimination under the ECOA, the district court dismissed the complaint for failure to state a claim.

III.

This court reviews the grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994).

In order to state a claim, a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

To state a claim for relief under the ECOA, the plaintiffs must plausibly show that they were discriminated against in violation of the statute. More specifically, the complaint must plausibly allege that (1) each plaintiff was an “applicant”; (2) the defendant was a “creditor”; and (3) the defendant discriminated against the plaintiff with respect to any aspect of a credit transaction on the basis of the plaintiffs membership in a protected class. See 15 U.S.C. §§ 1691(a), 1691a(b), 1691a(e), 1691e(a).

The Supreme Court has clearly explained the standard for evaluating whether a complaint states a valid claim for relief:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief....
[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice .... [OJnly a complaint that states a plausible claim for relief survives a motion to dismiss.... [WJhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not shown — that the pleader is entitled to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678-79,129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations, quotations, and alterations omitted).

IV.

Thus, the question that we are called upon to address is whether the district court erred in holding that none of the plaintiffs stated a plausible claim for relief. This consideration requires that we address the question as to each group of plaintiffs in turn.

A.

First, we turn to the Wells Fargo Applicants. This “group” includes the two plaintiffs who applied directly for a loan with Wells Fargo.

There is no dispute that they are “applicants,” nor that Wells Fargo was a “creditor” with respect to them. Nevertheless, we find that they did not plausibly state a claim against Wells Fargo.

The only fact that these applicants allege to establish that Wells Fargo illegally refused to consider their Section 8 income is that its guide stated that it would not purchase mortgages originated by other lenders when based on Section 8 income. But the question of Wells Fargo’s purchasing on the secondary mortgage market is distinct from its practices as an originating lender. Indeed, the ECOA does not prohibit discrimination with respect to mortgages purchased on the secondary market; the Act only applies to originating lenders in the primary market. Thus the facts alleged by the Wells Fargo applicants have no plausible relation to the statutory injury they assert.

All of the other allegations that the Wells Fargo Applicants make, see, e.g., Complaint at ¶¶ 81, 96, 104, 105, 109, above, are not facts and are no more than “formulaic recitation[s] of the elements of a cause of action.” Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. In short, such recitations are only hollow support to a plausible claim that Wells Fargo discriminated against them in their loan applications on the basis of their Section 8 income. Accordingly, the district court’s judgment as to the Wells Fargo Applicants is affirmed.

B.

Next, we address the claims of the six AmeriPro Inquirers, who sought information from AmeriPro but did not apply for a loan.

As we have earlier noted, the ECOA provides that “[i]t shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction ... because all or part of the applicant’s income derives from any public assistance program.” 15 U.S.C. § 1691(a)(2). One remedy for such discrimination is a civil cause of action, providing that “[a]ny creditor who fails to comply with any requirement imposed under this subchapter shall be liable to the aggrieved, applicant.” 15 U.S.C. § 1691e(a) (emphasis added). “Applicant” is defined as “any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit.” 15 U.S.C. § 1691a(b).

“There is nothing ambiguous about ‘applicant.’ ” Moran Foods, Inc. v. Mid-Atl. Mkt. Dev. Co., LLC, 476 F.3d 436, 441 (7th Cir. 2007). “To ‘apply’ means ‘to make an appeal or request especially formally and often in writing and usually for something of benefit to oneself.’ Thus, the plain language of the ECOA unmistakably provides that a person is an applicant only if she requests credit.” Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 941 (8th Cir. 2014) (citing Webster’s Third New International Dictionary 105 (2002)) (alterations omitted), aff'd by an equally divided Court, — U.S. -, 136 S.Ct. 1072, 194 L.Ed.2d 163 (2016).

The AmeriPro Inquirers’ claims fail because, after filing a Third Amended Complaint, they do not plausibly allege that they “applie[d]” for a loan or otherwise requested credit. Nor do they identify any AmeriPro personnel with whom they may have had any conversation. They allege only that they “contacted and made inquiry ... as to financing a home,” and that they “contacted Defendant AmeriPro Funding during various months of the calendar years 2011 to and including 2014.” Complaint ¶¶ 62-63. These are the only allegations, broad and unspecific as they are, that the AmeriPro Inquirers make that are not conclusions and formulaic recitations of the elements of the claim. Such allegations are insufficient plausibly to show that they “applied” for credit. Not only do the allegations fail to show that the AmeriPro Inquirers made an application for a loan, they fail to show that the Amer-iPro Inquirers “requested] credit” at all. Hawkins, 761 F.3d at 941; cf. The American Heritage Dictionary of the English Language 678 (1981) (defining “inquire” as “To put a question,” “To request information,” “To make an inquiry; look into; investigate,” “To ask about,” or “To ask”); see also 76 Fed. Reg. 79,442, 79,472 (2011) (listing “[ejxamples of inquiries that are not applications”).

Plaintiffs cite Moore v. United States Department of Agriculture on Behalf of Farmers Home Administration, 993 F.2d 1222 (5th Cir. 1993), for the proposition that plaintiffs need not complete an application in order to be considered “applicants.” There, the court reversed a district court’s holding that a white applicant— who was denied credit on the basis that a program categorically excluded whites— did not have standing because he failed to complete his application. Id. at 1222-24. Moore’s submitted application was incomplete because he failed to fill in the application’s form indicating “the minority you represent.” Id. at 1223 n. 2. Thus, unlike here, Moore actually submitted an application, and he actually requested credit. The AmeriPro Inquirers, by contrast, have only alleged that they soughtunformation about credit.

Plaintiffs also counter that even if they did not actually apply, they failed to apply only because they were “discouraged” from applying. It is true that a regulation pertinent to the ECOA, known as “Regulation B,” provides that “[a] creditor shall not make any oral or written statement, in advertising or otherwise, to applicants or prospective applicants that would discourage on a prohibited basis a reasonable person from making or pursuing an application.” 12 C.F.R. § 202.4(b). But § 202.4(b) does not alter the definition of “applicant,” and only an “aggrieved applicant” has standing under the ECOA to bring a private cause of action. 15 U.S.C. § 1691e. The statute provides no cause of action for an “aggrieved prospective applicant.” Discouragement of a “prospective applicant” may be regulatorily prohibited, but it cannot form the basis of a private claim or cause of action under the ECOA.

Because the AmeriPro Inquirers have not alleged a plausible factual basis to show that they were “applicants” under the ECOA, they fail to' state a claim. We thus affirm the district court’s judgment as to the AmeriPro Inquirers.

C.

Third, we consider the claims of the four AmeriPro Applicants, who applied for loans with AmeriPro. We first address their claims against AmeriPro, and then address their claims against Wells Fargo.

l.

The AmeriPro Applicants each specifically allege that they filled out a loan application with AmeriPro. Thus, under the ECOA, they are “applicants” to Ameri-Pro. The only disputed issue concerning their claims against AmeriPro is whether they sufficiently alleged that AmeriPro violated the ECOA by discriminating against them based on their Section 8 income.

The AmeriPro Applicants each allege that they were “denied credit and financing” because AmeriPro “claims it did not have an investor that would purchase a loan that allowed for their Section 8 income to be utilized in calculating the debt to income ratio and for qualifying purposes.” Complaint ¶ 69. Thus they allege that an unidentified AmeriPro agent or employee told them that something was unacceptable about their Section 8 income because AmeriPro could not sell mortgages based on such income. Further, Tina Alexander alleges specifically that she was “told that her Section 8 income would not qualify as income on her mortgage application.” Complaint ¶ 84.

These allegations, taken together, are sufficient plausibly to show that the Applicants applied for a mortgage with Ameri-Pro, that AmeriPro refused to consider their Section 8 income in assessing their creditworthiness, and that, as a result, they received mortgage loans on less favorable terms and in lesser amounts than they would have received had their Section 8 income been considered. The alleged conduct is “discrimination] ... with respect to any aspect of a credit transaction ... because all or part of the applicant’s income derives from any public assistance program,” 15 U.S.C. § 1691(a)(2), and that is all that is required to state a claim for relief.

We therefore hold that the AmeriPro Applicants have stated a claim against Am-eriPro. We reverse the district court’s judgment as to these claims and remand for further proceedings.

2.

The AmeriPro Applicants also assert claims against Wells Fargo. They argue that since Wells Fargo’s secondary-market policy of refusing to purchase mortgages that rely on Section 8 income determined AmeriPro’s primary-market policy of discriminating against applicants with Section 8 income, Wells Fargo should also be liable for violating the ECOA. We cannot agree, however, that these allegations state a cognizable cause of action under the statute against Wells Fargo as a player in the secondary market.

The primary issue is whether Wells Fargo is a “creditor” as to the AmeriPro Applicants-. The ECOA defines “creditor” as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.” 15 U.S.C. § 1691a(e). Relevant too is the definition of “applicant”: “any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit.” 15 U.S.C. § 1691a(b). The AmeriPro Applicants do not allege that they applied either “directly” or “indirectly” to Wells Fargo; they applied to AmeriPro. Wells Fargo, then, can only be held liable as a creditor as to the AmeriPro Applicants if it was ah “as-signee of an original creditor who participates in the decision to extend, renew, or continue credit.” 15 U.S.C. § 1691a(e).

The AmeriPro Applicants fail to state a claim against Wells Fargo because they fail plausibly to allege that Wells Fargo “participate^]” in the decision to extend credit. They make no allegations whatsoever concerning Wells Fargo’s alleged “participation” other than pointing out that Wells Fargo had a policy in the secondary market of not purchasing mortgages that were originated by someone else in the •primary market based on Section 8 income. Again, this policy does not violate any prohibition under the ECOA. The ECOA does not apply, and does not purport to apply, to arms-length transactions in the secondary mortgage market. But the AmeriPro Applicants allege only that AmeriPro was a seller in the secondary market, that Wells Fargo was a purchaser of AmeriPro’s mortgages, and that Wells Fargo’s publiely-available purchasing guidelines excluded mortgages that implicate Section 8 housing vouchers. There is no allegation that Wells Fargo had any “participation” whatsoever in AmeriPro’s decision to extend credit to any of its applicants. Cf The American Heritage Dictionary of the English Language 955 (1981) (defining “participate” as “To take part; join or share with others”); Webster’s Third New International Dictionary of the English Language Unabridged 1646 (1993) (defining “participate,” in relevant part, as “to take part in something (as an enterprise or activity) usu[ally] in common with others”).

The Consumer Financial Protection Bureau (“CFPB”), as amicus, argues that the ECOA’s and Regulation B’s definitions of “creditor” are broad enough to encompass Wells Fargo’s conduct. See 12 C.F.R. § 202.2(l) (“Creditor means a person who, in the ordinary course of business, regularly participates in a credit decision, including setting the terms of the credit. The term creditor includes a creditor’s assign-ee, transferee, or subrogee who so participates.”); 12 C.F.R. Pt. 1002, Supp. I ¶ 1002.2(1)(1), 76 Fed. Reg. 79,442, 79,473 (2011) (“The term creditor includes all persons participating in the credit decision. This may include an assignee or a potential purchaser of the obligation who influences the credit decision by indicating whether or not it will purchase the obligation if the transaction is consummated.”). But even Regulation B’s definition of “creditor” does not purport to extend to those who have no direct involvement whatsoever in an individual credit decision. See 68 Fed. Reg. 13,144, 13,145 (2003) (“The final rule clarifies that the definition of creditor includes those who make the decision to deny or extend credit, as well as those who negotiate and set the terms of the credit with the consumer. But a potential assignee who establishes underwriting guidelines for its purchases but does not influence individual credit decisions is not a creditor.”) (emphasis added); accord In re Simmerman, 463 B.R. 47, 63 (Bankr. S.D. Ohio 2011) (“[A]n assignee may only be held liable as a ‘creditor’ when the assignee influences the credit decision by, for example, participating in the decision to extend credit or by negotiating the terms of the credit. Without being involved in or influencing the credit decision, the assignee will not be held liable as a creditor under the ECOA.”).

In sum, we reject the broad expansion of ECOA liability urged by the AmeriPro Applicants and the amicus CFPB to include the conduct of Wells Fargo in the secondary market.

V.

We sum up: the “Wells Fargo Applicants” — plaintiffs Baylor and Kennerly— do not plausibly allege that Wells Fargo discriminated against them on the basis of their Section 8 income or failed to consider their Section 8 income in assessing their creditworthiness. The “AmeriPro Inquirers” — plaintiffs Alexis, Baines, Bennings, Haygood, Henry, and R. Jones — do not plausibly allege that they are “applicants” under the ECOA because they did not actually apply for credit with AmeriPro. The claims of the “AmeriPro Applicants”— plaintiffs Alexander, C. Jones, Williams, and Woods — as against Wells Fargo do not plausibly allege that Wells Fargo was a “creditor” with respect to them. The district court’s dismissal is affirmed as to these claims.

The claims of the “AmeriPro Applicants” as against AmeriPro, however, do plausibly allege violations of the ECOA. These plaintiffs have plausibly alleged that Amer-iPro refused to consider their Section 8 income in assessing their creditworthiness as mortgage applicants, and that they received mortgages on less favorable terms and in lesser amounts than they would have had their Section 8 income been considered. We reverse the district court’s judgment as to these claims, and remand for further proceedings not. inconsistent with this opinion.

The district court’s judgment is therefore AFFIRMED IN PART and REVERSED IN PART, and the case is REMANDED for further proceedings in accordance with this opiriion.

      . See 42 U.S.C. § 1437f(a) (“For the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing, assistance pay-merits may be made with respect to existing housing in accordance with the provisions of this section.”).

      . References to the Complaint refer to plaintiffs’ Third Amended Complaint.

      . One plaintiff also brought similar claims against another financial entity, Amegy Bank, N.A. Those claims settled.

      . Plaintiffs Williams and Wood made substantively identical allegations in ¶¶ 88-93.

      . Wells Fargo points out that four of these plaintiffs — Alexis, Baines, Henry, and R. Jones — voluntarily dismissed their claims against it without prejudice. The remaining two — Bennings and Haygood — are still pursuing claims against Wells Fargo, and all six are pursuing claims against AmeriPro.

      .At oral argument, plaintiffs’ counsel insisted that all plaintiffs, including the six plaintiffs we call the AmeriPro Inquirers, did, in fact, complete an application to apply for a loan. However, this appeal comes from a 12(b)(6) motion to dismiss; the relevant pleading now before us is the Third Amended Complaint. But the Third Amended Complaint has no allegations suggesting that they did, in fact, apply. Paragraph 40 of the Complaint, which plaintiffs’ counsel cited at oral argument, provides no support. Its daim that “Defendants discriminated against Plaintiffs in their capacity as applicants seeking credit to purchase a home” is a conclusory allegation; it contains no factual content.

      . Accord. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 538 (7th Cir. 2011) ("To state a claim under the ECOA, Mrs. Davis had to allege that she was an 'applicant' and that the defendants treated her less favorably because of her race.").

      . Further, "creditor” is defined as “any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.” 15 U.S.C. § 1691a(e).

      . Some courts have found that “applicant” is ambiguous with respect to whether the term covers a guarantor. See, e.g., RL BB Acquisition, LLC v. Bridgemill Commons Dev. Grp., LLC, 754 F.3d 380, 384-85 (6th Cir. 2014). We need not decide whether the term in-eludes a guarantor, or whether we ought to defer to Regulation B’s definition of the term, which, unlike the statute, explicitly includes guarantors, and which, unlike the statute, includes those who "request! ]” credit. See 12 C.F.R. § 202.2(e). We are satisfied that the term "applicant” does not include individuals who are not guarantors and who never request credit at all.

      .For example, the AmeriPro Inquirers allege that "[i]n addition to the foregoing allegations, Plaintiffs ... also specifically requested financing and/or credit from Defendant AmeriPro Funding through various employees, agents and servants.” Complaint ¶ 61. This non-specific, conclusory allegation, standing alone and unsupported by any other factual content, tells us nothing and is insufficient to survive a motion to dismiss. Although plaintiffs claim that they "specifically requested financing and/or credit,” they (unlike the AmeriPro Applicants) offer nothing to support this bald assertion, and instead go on to state only that they “inquired” about loans. Additionally, they later allege that they were "denied credit and financing,” Complaint ¶ 69, but this allegation is unsupported and implausible in the light of their failure to allege that they ever applied for, or otherwise requested, credit.

      . Administrative agencies have broader enforcement powers under the ECOA than individuals attempting to bring a private cause of action. See 15 U.S.C. §§ 1691c, 1691e.

      . The Applicants' allegations ''allow]] the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937, that they received mortgages on less favorable terms than if their Section 8 income had been considered. Based on common sense alone, it is plausible, if not likely or even certain, that an applicant able to list Section 8 income would receive more favorable terms — better rates, higher lending limits, etc. — than the same applicant would without listing the income.

      . To the extent the Complaint attempts to insinuate as much, it does so through conclu-sory allegations that are not entitled to any presumption of truth.

      . The 2011 guidelines, though arguably broader than the 2003 guidelines, were careful to note that "this interim final rule does not impose any new substantive obligations on regulated entities.” 76 Fed. Reg. at 79,442.