Case: 14-14201 Date Filed: 09/16/2015 Page: 1 of 23
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT _________________________
No. 14-14201 _________________________
D.C. Docket No. 6:13-cv-00224-GAP-GJK
ELVAN MOORE,
Plaintiff-Appellant,
versus
KEVIN PEDERSON,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the Middle District of Florida __________________________
(September 16, 2015) Case: 14-14201 Date Filed: 09/16/2015 Page: 2 of 23
Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District Judge.
ROSENBAUM, Circuit Judge:
Dorothy may have said it best when she said, “There is no place like
home.” 1 Though we are pretty sure that she was not talking about the Fourth
Amendment, she may as well have been. Under the Fourth Amendment, the home
is a sacrosanct place that enjoys special protection from government intrusion. The
government may not enter a person’s home to effect an arrest without a warrant or
probable cause plus either consent or exigent circumstances. For this reason, we
hold today that, in the absence of exigent circumstances,2 the government may not
conduct the equivalent of a Terry3 stop inside a person’s home. But because the
law on this point was not clearly established in this Circuit before our decision
today, we affirm the district court’s entry of summary judgment on qualified-
immunity grounds to Defendant-Appellee Deputy Kevin Pederson, who reached
into Plaintiff-Appellant Elvan Moore’s home to arrest and handcuff him when, in
the course of what Pederson described as a Terry stop, Moore declined to identify
* The Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation. 1 L. Frank Baum, The Wonderful Wizard of Oz 46, http://ir.nmu.org.ua/bitstream/handle/123456789/123102/cb6151959dc6ecf6e71dc17715e88d24. pdf?sequence=1. 2 We find that this case does not involve exigent circumstances, so we do not explore today what particular exigent circumstances may justify an officer’s entry into a home without a warrant and may permit the officer to conduct what is effectively a Terry stop inside the home. 3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). 2 Case: 14-14201 Date Filed: 09/16/2015 Page: 3 of 23
himself in response to Pederson’s questioning. We also affirm the district court’s
dismissal of Moore’s state-law claim for intentional infliction of emotional
distress.
I.
In the early morning hours of November 15, 2008, Defendant Seminole
County Sheriff’s Deputy Kevin Pederson was working road patrol. He received a
dispatch from the Sheriff’s Office in response to a call from someone at the
Colonial Grand apartments. The complainant reported that a male and two females
were outside, yelling at one another, though the complainant added that the dispute
did “not sound violent.”
At approximately 4:45 a.m., Pederson arrived at the apartment complex.
When Pederson got there, the caller met him and explained that a man and two
women had been arguing in the parking lot and that one of the women had left in a
white vehicle. According to the caller, verbal disputes involving these people were
“an everyday occurrence.” The caller then directed Pederson to Plaintiff Elvan
Moore’s apartment as the unit into which the couple retreated.
Based on this information, Pederson approached Moore’s residence to
further investigate the situation. As he neared the door, he heard what he described
sounded like an argument, though he could not make out any words. In addition,
Pederson stated that he heard music coming from the apartment.
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Pederson knocked on Moore’s door. When Moore opened the door, he was
wearing a towel wrapped at the waist, and two women were visible inside the
apartment—one naked and one clothed. Though neither woman asked for
assistance or otherwise indicated she was in distress, Pederson stated that he
thought that one of the women “had a scowl on her face” and “appeared visibly
upset, pissed off,” but he could not discern at whom she was mad. From
Pederson’s “initial impression,” he thought “maybe this is a girlfriend that just
walked in on a boyfriend who is with another woman.”
Pederson began interviewing Moore in order to investigate Moore’s
involvement in the parking-lot disturbance. In addition, Pederson explained, he
did not know whether “a domestic violence situation” existed, based on what he
had seen.
In response to the questioning, Moore expressed lack of knowledge that a
parking-lot disturbance had occurred, and when Pederson requested that Moore
provide his name and identification, Moore declined. Moore also refused
subsequent requests from Pederson to identify himself.
At some point during the conversation and after Moore’s multiple refusals to
provide identification, Pederson handcuffed Moore. At the time, Moore was
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standing inside the doorway of his apartment.4 After Pederson handcuffed Moore,
Pederson led Moore, who was still wearing a towel when he was handcuffed, from
the doorway of his apartment to the patrol vehicle.
During the walk to the patrol vehicle, Moore’s towel fell off. 5 After placing
Moore in the patrol vehicle, Pederson took Moore to the police station where he
was booked and eventually provided a jump suit to wear. Moore was subsequently
charged with violating Florida Criminal Statute 843.02: resisting officer –
obstructing without violence. The charges against Moore were eventually
dropped.
II.
Following these events, Moore filed an amended complaint asserting claims
for, among other things, unlawful arrest in violation of 42 U.S.C. § 1983 (“§
1983”) and intentional infliction of emotional distress (under Florida law).6
4 Pederson attested that the arrest and handcuffing occurred outside of Moore’s apartment. Since we are reviewing the entry of summary judgment against Moore, however, we accept for purposes of our analysis Moore’s version of the facts where a conflict between Moore’s and Pederson’s stories exists. 5 Again, the parties’ versions of the facts diverge here. Pederson asserted that Moore wore a towel that remained on throughout the entire period that he was in Pederson’s custody. 6 Besides these claims, Moore’s amended complaint alleged state-law claims for false arrest and malicious prosecution against Pederson and also asserted claims of invasion of privacy and failure to train and supervise in violation of 42 U.S.C. § 1983 against several other entities. The district court dismissed all of these claims. On appeal, without identifying any issues relating to these claims in his statement of issues and without making any actual arguments about these claims in his appellate brief, Moore attempts to incorporate by reference his arguments regarding these other state claims contained in his brief in opposition to Pederson’s motion for summary judgment filed in the district court, explaining that he does so 5 Case: 14-14201 Date Filed: 09/16/2015 Page: 6 of 23
According to the amended complaint, Moore claimed that he was unlawfully
arrested without probable cause based only on his refusal of Pederson’s request to
provide biographical information for a report.
Pederson filed a motion for summary judgment on all claims, and Moore
filed a cross-motion for summary judgment on his § 1983 claim. The district court
granted summary judgment in favor of Pederson on all claims. We now affirm.
III.
We review de novo the district court’s disposition of a summary-judgment
motion based on qualified immunity. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th
Cir. 2002). Summary judgment should be entered when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In making this determination, we consider the record
and draw all reasonable inferences in the light most favorable to the non-moving
“[i]n the interest of page limits compliance.” We have explained many times that “a legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004); see also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Good reasons for this rule exist. Among others, Moore’s brief opposing summary judgment before the district court does not explain what defects Moore perceives in the district court’s ruling, which was obviously entered after Moore filed the brief that he asks us to consider. So we (and Pederson) would have to divine what in particular Moore thought was problematic about the district court’s decision. That is not how our adversarial system works. We further note that nothing prevented Moore from requesting permission to exceed the page limit if he had good cause to do so, but Moore never made such a request. Because Moore has not briefed any issues regarding these other state-court claims, any issues relating to them are deemed abandoned. 6 Case: 14-14201 Date Filed: 09/16/2015 Page: 7 of 23
party. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (per curiam); Hoyt
v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012).
IV.
The qualified-immunity defense balances “the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009).
Qualified immunity exists “to allow government officials to carry out their
discretionary duties without the fear of personal liability or harassing litigation.”
Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003).
In pursuit of that aim, qualified immunity protects government officials
engaged in discretionary functions and sued in their individual capacities unless
they violate “clearly established federal statutory or constitutional rights of which a
reasonable person would have known.” Keating v. City of Miami, 598 F.3d 753,
762 (11th Cir. 2013) (quotation marks, and brackets omitted). Under its strictures,
“all but the plainly incompetent or one who is knowingly violating the federal law”
is exposed to liability. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). As a
result, qualified immunity “liberates government agents from the need to
constantly err on the side of caution by protecting them both from liability and the
other burdens of litigation, including discovery.” Holmes v. Kucynda, 321 F.3d
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1069, 1077 (11th Cir. 2003) (internal quotation marks omitted). This safeguard,
however, does not extend to one who “knew or reasonably should have known that
the action he took within his sphere of official responsibility would violate the
constitutional rights of the [plaintiff].” Id. (internal quotation marks & alteration
omitted).
Qualified immunity requires a public official to show first that he was acting
within the scope of his or her discretionary authority. Maddox v. Stephens, 727
F.3d 1109, 1120 (11th Cir. 2013). We have said that the term “discretionary
authority” “include[s] all actions of a governmental official that (1) were
undertaken pursuant to the performance of his duties, and (2) were within the
scope of his authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)
(internal quotation marks omitted). Here, there is no question that Pederson
satisfied this requirement, as Pederson engaged in all of the challenged actions
while conducting investigative and arrest functions as a deputy sheriff and while
on duty. 7
Because Pederson has established that he was acting within the scope of his
discretionary authority, the burden shifts to Moore to demonstrate that qualified
7 Although Moore argues in his opening brief that Pederson was not acting within the scope of his duties, Moore did not raise this challenge in response to Pederson’s motion for summary judgment in front of the district court. Consequently, Moore forfeited this argument. Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009) (“[A]bsent extraordinary circumstances, legal theories and arguments not raised squarely before the district court cannot be broached for the first time on appeal.”). And even if he had not forfeited the argument, we find that it lacks merit. 8 Case: 14-14201 Date Filed: 09/16/2015 Page: 9 of 23
immunity is inappropriate. See id. Moore must show that, when viewed in the
light most favorable to him, the facts demonstrate that Pederson violated Moore’s
constitutional right and that that right was “clearly established . . . in light of the
specific context of the case, not as a broad general proposition[,]” at the time of
Pederson’s actions. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156
(2001). We may decide these issues in either order, but, to survive a qualified-
immunity defense, Moore must satisfy both showings. Maddox, 727 F.3d at 1120-
21 (citation omitted).
A.
We start by considering whether Pederson transgressed any of Moore’s
constitutional rights. We find that he did. In particular, Pederson violated Moore’s
right to be free from unreasonable seizures.
1.
Stemming from the origins of our nation, the home has always been viewed
as a sacrosanct place with unique rules that apply to it. See Payton v. New York,
445 U.S. 573, 100 S. Ct. 1371 (1980) (“The zealous and frequent repetition of the
adage that a ‘man’s house is his castle,’ made it abundantly clear that both in
England[] and in the Colonies ‘the freedom of one’s house’ was one of the most
vital elements of English liberty”). Indeed, the Framers considered the hallowed
stature of the home to be so important that they directed two amendments in the
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Bill of Rights at it, protecting the privacy of the home with both the Fourth
Amendment and the Third Amendment. 8
With respect to the Fourth Amendment, the Supreme Court has opined that
the “physical entry of the home is the chief evil against which the wording of [that
provision] is directed.” United States v. U.S. Dist. Ct. for E.D. Mich., S. Div., 407
U.S. 297, 313, 92 S. Ct. 2125, 2134 (1972). Looking to the language of the Fourth
Amendment, it is easy to understand the Supreme Court’s reasoning. The Fourth
Amendment strictly commands, “The right of the people to be secure in their
persons [and] houses . . . against unreasonable . . . seizures, shall not be violated . .
. .” U.S. CONST. amend IV. Under it, “no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons . . . to be seized.” Id.
As the Supreme Court has explained, the Fourth Amendment “draw[s] a
firm line at the entrance to the house.” Payton, 445 U.S. at 590, 100 S. Ct. at 1382.
As a result, “warrantless arrest in a home violates the Fourth Amendment unless
the arresting officer had probable cause to make the arrest and either consent to
enter or exigent circumstances demanding that the officer enter the home without a
warrant.” Bashir v. Rockdale Cnty., Gal., 445 F.3d 1323, 1328 (11th Cir. 2006).
8 The Third Amendment, which is not at issue in this case, provides, “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” U.S. CONST. amend. III. 10 Case: 14-14201 Date Filed: 09/16/2015 Page: 11 of 23
But make no mistake: in the absence of these stringent circumstances, for the
purpose of arresting a person without a warrant, “any physical invasion of the
structure of the home, ‘by even a fraction of an inch,’ [is] too much . . . .” 9 Kyllo v.
United States, 533 U.S. 27, 37, 121 S. Ct. 2038, 2045 (2001) (citation omitted).
Applying these rules, in McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007),
we held that an officer who, without a warrant, or probable cause along with
exigent circumstances or consent, “reached into [a] house, grabbed [the plaintiff],
and forcibly pulled him out onto the porch” in order to arrest him, violated the
plaintiff’s Fourth Amendment rights.
2.
Moore’s case is not materially different. Like the officer in McClish,
Pederson did not have a warrant, and he lacked probable cause, exigent
circumstances, and consent. He nonetheless breached Moore’s home’s threshold
for the purpose of arresting Moore when he handcuffed Moore, who was standing
inside his apartment’s doorway at the time. As a result, Pederson violated Moore’s
Fourth Amendment right to be free from unreasonable seizures.
9 If we were speaking in terms of football, we might say that it is a Fourth Amendment violation if any part of the law-enforcement officer breaks the plane of the home to conduct a warrantless arrest without probable cause and either consent or exigent circumstances. See 2015 NFL Rulebook, Rule 3, § 39, http://operations.nfl.com/the-rules/2015-nfl-rulebook/ (“It is a Touchdown if any part of the ball is on, above, or behind the opponent’s goal line while legally in possession of an inbounds player, provided it is not a touchback.”) (emphasis added). 11 Case: 14-14201 Date Filed: 09/16/2015 Page: 12 of 23
While Pederson contends that he had probable cause to arrest Moore for his
alleged violation of Fla. Stat. § 843.02, which makes it illegal to resist an officer
without violence, serious problems doom Pederson’s argument. To begin with,
Pederson’s position necessarily depends on the conclusion that Moore refused to
provide his identification to Pederson during a lawful Terry stop, but Pederson did
not conduct a lawful Terry stop.
In Terry v. Ohio, the Supreme Court held that an officer does not violate the
Fourth Amendment by conducting a “brief, investigatory stop when the officer has
a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000) (citing Terry, 392 U.S. at
30, 88 S. Ct. at 1868). A Terry stop is a type of seizure under the Fourth
Amendment because it restrains the freedom of the detainee to walk away or
otherwise remove himself from the situation. Terry, 392 U.S. at 16, 88 S. Ct. at
1877. The standard of “reasonable suspicion” that is required to justify a Terry
stop is significantly more lenient than that of “probable cause,” which is necessary
to support a warrant. Id. at 123, 120 S. Ct. at 675-76.
Pederson asserts that, when he initially approached Moore’s door, he had
reasonable, articulable suspicion of a breach of the peace, based on the
complainant’s report about the parking-lot dispute and the music and argument
emanating from inside Moore’s apartment. For purposes of our discussion, we will
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assume that he is correct.10 Pederson bolsters his reasonable-suspicion argument
by relying on his assessment of the situation after Moore opened the door—
namely, that he had reasonable, articulable suspicion that a possible ongoing
domestic dispute related to the parking-lot incident could have been occurring.
These circumstances, Pederson suggests, independently allowed him to continue
his Terry stop.
But significantly, the circumstances in this case did not satisfy the definition
of “exigent circumstances” either before or after Pederson’s interaction with
Moore. Before Pederson knocked on Moore’s door, all he knew was that a
neighbor had complained of a non-violent argument in the parking lot where one of
the participants had left the scene, and Pederson heard what he believed could have
been arguing and music coming from inside the apartment. These facts are a far
10 Even if he is not, Pederson could have lawfully knocked on Moore’s front door seeking to ask him questions outside the context of a Terry stop. Morris v. Town of Lexington, Ala., 748 F.3d 1316, 1324 (11th Cir. 2014) (citing Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1416 (2013). As we have explained, “officers are allowed to knock on a residence’s door or otherwise approach the residence seeking to speak to the inhabitants just [as] any private citizen may.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) (alteration, internal quotation marks, and citation omitted). But an important difference exists between a Terry stop and the type of interaction that occurs when a person responds to an officer’s knock on the door and engages in conversation with that officer: the mandatory versus the voluntary nature of the interaction. In the Terry stop, the person is detained within the meaning of the Fourth Amendment; he cannot simply walk away or otherwise avoid the encounter. But when a citizen is not detained by a Terry stop or otherwise lawfully detained and chooses to speak with an officer, that citizen has the right to cease answering questions and walk away from the officer; the encounter is entirely voluntary. When this type of interaction occurs as the result of a citizen’s decision to speak with officers after they knock on the door of his home, provided that no warrant or probable cause and exigent circumstances exist, the citizen has the right to terminate his voluntary participation in the conversation by retiring into his home and closing the door. 13 Case: 14-14201 Date Filed: 09/16/2015 Page: 14 of 23
cry from an “emergency situation[] involving endangerment to life” that we have
previously described as constituting exigent circumstances. See, e.g., United States
v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002).
And after Moore opened the door for Pederson, nothing that Pederson
reported observing established or even suggested that anyone’s life or health was at
risk. At worst, Pederson saw a naked man, a naked woman, and a clothed woman
with a scowl on her face. No one appeared injured in any way; Pederson did not
report seeing any furniture or other items strewn about; and Pederson did not
identify any behavior or conduct that suggested that any of the occupants of the
residence contemplated violence in any way. Moreover, while the complainant
reported hearing arguments from that apartment on other occasions, which he
considered a nuisance, he specifically described the disputes as “verbal” and non-
violent. This is not the stuff of which life- or limb-threatening emergencies that
constitute “exigent circumstances” are made.
As a result, Pederson could not have lawfully executed a Terry stop in this
case. Because Pederson did not have a warrant and he was not conducting a lawful
Terry stop when Moore was inside his home, Moore was free to decide not to
answer Pederson’s questions. Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849,
1862 (2011) (“When the police knock on a door . . . [and the] occupant chooses to
open the door and speak with the officers, the occupant need not allow the officers
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to enter the premises and may refuse to answer any questions at any time.”).
Consequently, Moore’s refusal to answer Pederson’s requests for identification
could not have served as the basis for a violation of Fla. Stat. § 843.02, resisting an
officer without violence, and Pederson lacked probable cause to arrest Moore for
this violation.
We have said that an officer may not enter the home for the purpose of
effecting a warrantless arrest unless that officer has both probable cause and either
exigent circumstances or consent. Bashir, 445 F.3d at 1328. So we cannot see
how law enforcement could enter a home to detain a person on reasonable,
articulable suspicion of a criminal violation (resisting an officer without
violence)—a much lower standard than probable cause—when neither exigent
circumstances nor consent exist. That just makes no sense to us. See United States
v. Saari, 272 F.3d 804, 809 (6th Cir. 2001) (“It would defy reason to hold . . . that a
warrantless in-home seizure is authorized to further an investigation, but that either
a warrant or exigent circumstances are necessary when officers have the probable
cause and intent to arrest.”).
In the absence of probable cause and without a warrant, Pederson could not
have lawfully entered Moore’s premises for the purpose of arresting him. Because
Pederson reached into Moore’s home to arrest him, anyway, Pederson violated
Moore’s constitutional right to be free from unreasonable seizure.
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VI.
Having determined that Pederson violated Moore’s Fourth Amendment right
to be free from unreasonable seizure, we consider whether, as of November 15,
2008, when Pederson arrested Moore, the parameters of that right as it arose in this
case were clearly established. We find that they were not.
The touchstone of qualified immunity is notice. Holmes v. Kucynda, 321
F.3d 1069, 1078 (11th Cir. 2003). The violation of a constitutional right is clearly
established if a reasonable official would understand that his conduct violates that
right. See Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc).
Our Circuit uses two methods to determine whether a reasonable official
would understand that his conduct violates a constitutional right. Fils v. City of
Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011). The first requires the court to
examine whether “decisions of the United States Supreme Court, the United States
Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent
state (here, the Supreme Court of Florida) [have] clearly establish[ed] the law.”
McClish, 483 F.3d at 1237 (citation omitted). This method does not require
“[e]xact factual identity with a previously decided case” but rather demands that
“the unlawfulness of the conduct must be apparent from the pre-existing law.”
Coffin, 642 F.3d at 1013 (citations omitted).
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The second approach asks whether the officer’s “conduct lies so obviously
at the very core of what the Fourth Amendment prohibits that the unlawfulness of
the conduct was readily apparent to [the officer], notwithstanding the law of fact-
specific case law” on point. Fils, 647 F.3d at 1291 (alteration in original) (citation
and quotation marks omitted). Even in the absence of caselaw holding the specific
conduct unlawful, a “general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in question.” Coffin,
642 F.3d at 1014-15; see Fils, 647 F.3d at 1291. But this principle offers a narrow
exception to the general rule that only caselaw and specific factual scenarios can
clearly establish a constitutional violation and is reserved for rare cases. Coffin,
642 F.3d at 1015.
Moore does not point to a particular Supreme Court, valid Eleventh Circuit,
or Florida Supreme Court case that he contends clearly established that Terry-like
stops may not be conducted in the home. Instead, he asserts that it was clearly
established that a Terry stop could not occur inside the home because all cases
approving of Terry stops involve temporary detentions in public places, not in
homes. In further support of his argument, Moore points to a vacated Eleventh
Circuit case and cases outside this Circuit where courts have opined that a Terry
stop cannot occur in the home. We disagree that Moore has demonstrated that the
law was clearly established in this case as of November 15, 2008, that an officer
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may not conduct a Terry-like stop in the home in the absence of exigent
circumstances.
First, the mere dearth of binding caselaw holding that a particular activity is
constitutional cannot, in and of itself, clearly establish that that activity is
unconstitutional or otherwise impermissible. Indeed, that Moore discovered no
valid, binding caselaw that holds that a Terry-like stop can be conducted in a home
does not somehow clearly establish the principle that a Terry-like stop cannot be
executed in a home.
Nor does Moore find the necessary support in the cases he cites. Moore
relies on a vacated Eleventh Circuit case, two Ninth Circuit cases that were issued
after November 15, 2008, and a Tenth Circuit case that was issued in May 2008.
To state the obvious, United States v. Tobin, 890 F.2d 319, 327 (11th Cir. 1989),
vacated, 902 F.2d 821 (11th Cir. 1990), the Eleventh Circuit case on which Moore
relies, was vacated. That means it has no legal force, so it could not have clearly
established the law.
While Moore acknowledges as much, he suggests that the Eleventh Circuit’s
subsequent en banc opinion in Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (en
banc) (“Tobin II”), clearly established that an in-home Terry-like stop violates the
Fourth Amendment when it stated that “reasonable suspicion cannot justify the
warrantless search of a house.” Not only does the quotation that Moore cites
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address warrantless searches, not Terry-like stops, but review of the entire
quotation—“Reasonable suspicion cannot justify the warrantless search of a house,
but it can justify the agents’ approaching the house to question the occupants,”
923 F.3d at 1511 (emphasis added) (citation omitted)—does not “dictate[], that is,
truly compel[], the conclusion for all reasonable, similarly situated public officials
that what Defendant was doing violated Plaintiff[’s] federal rights in the
circumstances.” Evans v. Stephens, 407 F.3d 1272, 1282 (11th Cir. 2005) (en
banc) (citation and internal quotation marks omitted).
In fact, a panel of this Court, relying on the same quotation about
“warrantless search[es]” in Tobin II on which Moore hangs his hat, said only that
“[w]e are skeptical that ‘reasonable suspicion’ is the correct standard for justifying
the officers’ entry” into the home. Morris, 748 F.3d at 1323 n.17. If, as recently
as last year, a panel of this Court was, at worst, “skeptical” that Terry-like stops
could occur in the home, we cannot say that the law on that point was “clearly
established” for officers six-and-one-half years ago. For this reason, Moore’s
argument must fail, regardless of the caselaw from other jurisdictions. 11 And we
11 As for the cases from other jurisdictions, first, in and of themselves, they cannot clearly establish the law in this Circuit. See McClish, 483 F.3d at 1237. Second, the Ninth Circuit cases that Moore cites—United States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010), and United States v. Perea-Rey, 680 F.3d 1179, 1185-86 (9th Cir. 2012)—both postdate the events in this case, so they could not have put Pederson on notice that Terry-like stops cannot occur in the home even outside this Circuit. And finally, as of the time of the events in this case, at least one circuit had applied a Terry analysis to an investigatory stop of people in their hotel room, suggesting that if sufficient facts to establish reasonable suspicion exist, a Terry-like stop 19 Case: 14-14201 Date Filed: 09/16/2015 Page: 20 of 23
cannot conclude that in November 2008 the law was clearly established in this
Circuit that a Terry-like stop cannot be conducted in the home, in the absence of
exigent circumstances. As a result, the district court correctly found that Pederson
was protected by qualified immunity.
VII.
Finally, we turn to the district court’s entry of summary judgment for
Pederson on Moore’s claim for intentional infliction of emotional distress.
In Florida, to prove intentional infliction of emotional distress, a plaintiff
must show that (1) the defendant’s conduct was intentional or reckless; (2) the
conduct was outrageous, beyond all bounds of decency, and odious and utterly
intolerable in a civilized community; (3) the conduct caused emotional distress;
and (4) the emotional distress was severe. Gallogly v. Rodriguez, 970 So. 2d 470,
471 (Fla. Dist. Ct. App. 2007). Regarding the second prong, even tortious or
criminal intent, or intent to inflict emotional distress, standing alone, is not enough.
Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985) (quoting
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (AM. LAW. INST. 1965)). Nor is
“conduct [that] has been characterized by ‘malice,’ or a degree of aggravation
may be conducted in the home. See United States v. Jerez, 108 F.3d 684, 693-94 (7th Cir. 1997). This means that in the absence of caselaw on this point from the Supreme Court, the Eleventh Circuit, and the Florida Supreme Court, at best, disagreement among other circuits existed as to whether a Terry-like stop could be conducted in the home. “If judges . . . disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” McClish, 483 F.3d at 1249 (citation and internal quotation marks omitted). 20 Case: 14-14201 Date Filed: 09/16/2015 Page: 21 of 23
which would entitle the plaintiff to punitive damages for another tort.” Id. (quoting
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (AM. LAW. INST. 1965)). Instead,
Florida courts have found “‘[l]iability . . . only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.’” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt.
d (AM. LAW. INST. 1965)). Indeed, only those situations where “recitation of the
facts to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, ‘Outrageous!’” satisfy the standard required to
establish a claim of intentional infliction of emotional distress. Id. (quoting
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (AM. LAW. INST. 1965)).
Nonetheless, in situations involving government authority, courts recognize that
“[t]he extreme and outrageous character of the conduct may arise from an abuse by
the actor of a position” and consequently “give greater weight to the fact that the
defendants had actual or apparent authority over [the plaintiff] as police officers.”
Gallogly, 970 So. 2d at 472 (quotation marks omitted).
Moore argues that Pederson “forced” Moore to be naked and refused to
allow Moore to put on clothing, and he alleges that both acts constituted extreme
and outrageous conduct. Under Moore’s recollection of the facts, Pederson
arrested Moore while Moore was wearing a towel wrapped around his waist. On
21 Case: 14-14201 Date Filed: 09/16/2015 Page: 22 of 23
the walk from Moore’s front door to the police car, Moore’s towel began to fall
off, completely dropping by the end of the first five feet of the walk. 12 For the
remaining fifteen feet, Moore was completely naked. When Moore asked two
separate people to bring him clothes, Pederson responded by instructing them to
stay where they were, or he would arrest them as well.
Upon arrival at the Sheriff’s Office, Moore saw a woman approaching to
process him. In response, Moore asked Pederson to please make arrangements for
a man to process him since he was naked. Pederson immediately obliged, and a
man processed Moore instead, bringing him a blue jumpsuit to put on.
We need not determine whether Pederson’s conduct was “outrageous.”
Regardless of whether it was, we are compelled to affirm the district court’s grant
of summary judgment on Moore’s claim for intentional infliction of emotional
distress. Moore was required to show that he suffered “severe” emotional distress
stemming from Pederson’s actions. Gallogly, 970 So. 2d at 471. But Moore made
absolutely no argument suggesting how he had done that, either in his briefing
12 Pederson contended that the towel remained on Moore throughout the arrest and right up until Moore’s processing. He further asserted that Moore had clothes with him in Pederson’s vehicle because one of the two women brought Moore clothes to put on for when he bonded out of jail. Pederson stated that he took Moore’s clothes to the jail for him. We also note that Moore’s processing report shows that he was booked with a towel, meaning that under Moore’s version of the facts, Pederson would have had to have stopped to pick up the towel from the ground when it fell off, or someone else would have had to have provided the towel to Pederson so that Moore could have it at the time that he was processed. For purposes of evaluating the entry of summary judgment against Moore, though, we accept Moore’s version of the facts. 22 Case: 14-14201 Date Filed: 09/16/2015 Page: 23 of 23
before this Court or that before the district court, nor did he point to any facts
evidencing that he suffered severe emotional distress.
Accordingly, we hold that Moore has not established a claim for intentional
infliction of emotional distress because he has not shown that Moore suffered
“severe” emotional distress as a result of Pederson’s actions.
VIII.
Home may be where the heart is,13 but it cannot be where the government
is—at least for purposes of conducting a Terry-like stop, in the absence of exigent
circumstances. Today we clearly establish this as the law in this Circuit. But since
the law was not clearly established on this point when Pederson arrested Moore,
the district court did not err when it granted qualified immunity to Pederson and
denied summary judgment to Moore. Nor did the court err in determining that
Moore failed to establish a claim for intentional infliction of emotional distress.
For these reasons, the district court’s order is AFFIRMED.
13 “Home is where the heart is” is a quotation often attributed to Pliny the Elder, also known as Gaius Plinius Secundus. Tragically and perhaps ironically, Pliny the Elder died trying to save his family and his friend Pomponianus from their homes in the aftermath of Mount Vesuvius’s eruption. 23