I Hear You Knocking But You Can't Reach In--And Next Time, You'll Pay

MCCLISH v. NUGENT, USCA-11 No. 06-11826, 2007 U.S.App. LEXIS 8294, on appeal from USDC-FLMD, before USCJs Anderson, Marcus, USDJ-FLSD Altonaga by designation, opinion by Marcus, concurrence by Anderson, filed 11 Apr 2007.

LONG STORY SHORT: Deputy knocked and the homeowner opened the door voluntarily, but that did not allow deputy to reach inside and arrest him without a warrant; however, qualified immunity applied because the right was not clearly established. Binding in AL, FL, GA.

FACTS: Plaintiff, age 75, and Roommate lived in a mobile home at the end of a long dirt road with a gate across its entrance, in Hernando County, FL. Neighbors called the sheriff's office to complain that Roommate was screaming ethnic slurs and death threats at them, and firing guns in the air. Defendant, a Hernando County deputy, responded to Neighbors' house at 4:00pm and interviewed them. While Defendant was there, Plaintiff observed them, and drove by Neighbors' house, yelling at them. Defendant heard Plaintiff threaten to kill Neighbor, though Plaintiff denied it and another deputy nearby did not hear what Plaintiff said.

Defendant and the other deputy returned to the sheriff's office, where Defendant reviewed the location's previous call history. Defendant decided to charge Plaintiff with aggravated stalking, a Florida felony, based on his observations and what he learned from records. Defendant did not obtain an arrest warrant, but went back to Plaintiff's home with backup to arrest him just before midnight. Another neighbor of Plaintiff's had a clicker to open the gate leading to Plaintiff's home, but even though Plaintiff had told that neighbor never to open the gate without Plaintiff's permission, he did so at the deputies' request. Defendant knocked on Plaintiff's front door and announced that he was LE. Everyone agreed that Plaintiff voluntarily opened the door, but Plaintiff and Roommate testified that Defendant reached inside and pulled Plaintiff outside. Defendant testified that Plaintiff came out on the porch voluntarily. Either way, Defendant arrested Plaintiff and transported him. Plaintiff's charges were dropped as part of pretrial intervention.

PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the Middle District of Florida per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable warrantless arrest without probable cause. Defendant moved for summary judgment, arguing that he acted properly, but that even if he had not, the law was not clearly established enough to put him on notice of any violations he did commit, entitling him to qualified immunity. The trial court assumed without deciding that Defendant did violate the Fourth Amendment, but then ruled that under the facts before it, the law was not clearly established beforehand and Defendant was not liable for violating it. QUALIFIED IMMUNITY GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: Qualified immunity requires a two-step analysis: whether Defendant violated one or more constitutional rights, and if so, whether the law was clearly established at the time of Defendant's acts. Courts are traditionally reluctant to rule on constitutional questions unless they absolutely have to, but when deciding qualified immunity, they DO absolutely have to. Among other reasons, that is how the law gets settled for purposes of the second step. The trial court erred by dodging the first step.

Taking the facts as favorably as they could toward Plaintiff, who testified that Defendant reached inside his home and pulled him out to effect a warrantless arrest, the Eleventh Circuit ruled Defendant's actions unconstitutional. "The poorest man in his cottage may bid defiance to all the forces of the Crown," meaning that the police may not intrude by even a fraction of an inch, absent a warrant or an exception to the warrant requirement. Here, there was no consent and no exigent circumstances, given the passage of seven hours between the first encounter and the warrantless arrest. Though Plaintiff opened the door voluntarily, that did not indicate consent to entry or abandonment of any reasonable privacy expectation, not in the Eleventh Circuit.

However, the second step of qualified immunity requires the law to be clearly established for a plaintiff to recover. In the Eleventh Circuit, the only courts whose decisions can clearly establish the law are SCOTUS, the Eleventh Circuit itself, and the highest court of the state where the events happened. At the time of Defendant's actions, none of those courts had squarely decided whether an officer without a warrant could reach an arm's length inside to seize an arrestee who opened the door. Indeed, other federal circuits had ruled that yes, officers may do that. Though the better answer was no, Defendant's conduct was not clearly unlawful at the time. GRANT OF QUALIFIED IMMUNITY AFFIRMED.

The concurrence would have ruled Defendant's actions constitutional, since Plaintiff was on or near the threshold of his home and voluntarily put himself in a position to be seized.

EDITORIAL: So now we know. Like in football, all you have to do is break the plane, and your bank might get broken. Or you could, oh I dunno, go get an arrest warrant sometime that afternoon ...

To drop a name, Judge Altonaga of the Southern District of Florida, who was on this panel by designation, was the very first judge I ever appeared in front of as a lawyer. When she was a state judge of the Eleventh Judicial Circuit, which consists solely of Dade County, I had a client who needed a domestic violence injunction, which other states call a restraining order and NC calls a 50B. I remember one of the cases before us where the domestic violence victim broke down in tears while testifying, and Judge Altonaga, without loss of judicial composure, reached for a handy box of tissues and passed it over the bench. I thought that was a nice touch. Judge Altonaga then actually granted my injunction, which kept my client and her troublesome husband apart for long enough that both of them were able to calm down and reconcile.