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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13572 ________________________
D.C. Docket No. 3:15-cv-00390-MCR-CJK
KENNETH BAILEY,
Plaintiff - Appellant,
versus
SHAWN T. SWINDELL, in his individual capacity, MICHAEL RAMIREZ, in his individual capacity, SHERIFF OF SANTA ROSA COUNTY FLORIDA,
Defendants - Appellees,
WENDELL HALL,
Defendant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
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Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, * District Judge.
NEWSOM, Circuit Judge:
What began as a relatively low-key consensual encounter between Santa
Rosa County Sheriff’s Deputy Shawn Swindell and Kenneth Bailey escalated
quickly into a forceful arrest. Taking the facts in the light most favorable to
Bailey, as we must given the case’s procedural posture, the short story goes like
this: Swindell showed up at Bailey’s parents’ home requesting to speak with
Bailey about an earlier incident involving his estranged wife. When Bailey came
to the door, Swindell asked to talk to him alone, but Bailey declined. After the two
argued briefly, Bailey went back inside the house. Then, presumably fed up with
Bailey’s unwillingness to cooperate, Swindell pursued him across the threshold
and (as Bailey describes it) “tackle[d] [him] . . . into the living room” and arrested
him.
Bailey sued, arguing that his arrest violated the Fourth Amendment. The
district court granted summary judgment in Swindell’s favor, and Bailey now
appeals on two grounds. First, Bailey disputes that Swindell had probable cause to
arrest him in the first place. Second, Bailey contends that in any event—i.e., even
assuming that probable cause existed—Swindell unlawfully arrested him inside his
* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation. 2 Case: 18-13572 Date Filed: 10/16/2019 Page: 3 of 16
parents’ home without a warrant. Unsurprisingly, Swindell disagrees on both
counts and, further, asserts that he is entitled to qualified immunity.
Without deciding whether Bailey’s arrest was supported by probable
cause—or, as it goes in the qualified-immunity context, “arguable probable
cause”—we reverse. Even assuming that Swindell had probable cause, he crossed
what has been called a “firm” and “bright” constitutional line, and thereby violated
the Fourth Amendment, when he stepped over the doorstep of Bailey’s parents’
home to make a warrantless arrest.
I
A
The seeds of the confrontation between Swindell and Bailey were planted
when Swindell responded to a request from police dispatch to investigate an
argument between Bailey and his estranged wife, Sherri Rolinger. 1 The argument
had occurred when Bailey stopped by the couple’s marital home to retrieve a
package. Bailey no longer lived in the home with Rolinger and their two-year-old
son, as the couple was embroiled in a contentious divorce. When Bailey rang the
doorbell—seemingly more than once—he woke the boy, who started to cry.
Rolinger came to the door but refused to open it and told Bailey to leave. Bailey
1 Because this case arises on the appeal of the district court’s summary judgment for Swindell, we take and construe the facts in the light most favorable to Bailey. See Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). 3 Case: 18-13572 Date Filed: 10/16/2019 Page: 4 of 16
responded that he wasn’t leaving without his package, and Rolinger eventually
informed him that she had put it in the mailbox. Bailey retrieved the package and
departed.
Rolinger went to her mother’s house and called 911 to report the incident to
police. In response to the call, Deputy Andrew Magdalany was dispatched to
interview Rolinger, and Swindell went to talk to Bailey. At some point before
Swindell reached Bailey, he called Magdalany and gathered additional details
about the encounter and the surrounding circumstances. Magdalany told Swindell,
for instance, that in the three months since Bailey’s separation from his wife, he
had visited the marital residence repeatedly, moved items around in the house, and
installed cameras without his wife’s knowledge. Magdalany also explained that
Rolinger was “fear[ful]” and believed that her husband had “snapped.” Even so,
he told Swindell that he had not determined that Bailey had committed any crime.
Armed with this information, Swindell approached Bailey’s parents’
home—where Bailey was living—knocked on the door, and told Bailey’s mother
Evelyn that he wanted to speak to Bailey.2 Bailey came to the door and stepped
2 Taking the facts in the light most favorable to Bailey, the district court imputed more knowledge to Swindell than it should have. Giving Bailey the benefit of the doubt, Swindell didn’t know at the time that he approached Bailey that Bailey and his wife were “embroiled in a contentious divorce,” that Bailey “banged on the closed front door and screamed at Sherri Rolinger,” that this disturbance was loud enough that “their two-year-son [sic] woke up crying,” or that Rolinger was “‘crying’ and ‘very distraught.’” We must assume that Swindell learned these facts only after arresting Bailey, and that before the confrontation Swindell knew only what dispatch and Magdalany had told him. Indeed, Swindell indicated that all the relevant 4 Case: 18-13572 Date Filed: 10/16/2019 Page: 5 of 16
out onto the porch, accompanied by his brother Jeremy. Bailey, Evelyn, and
Jeremy all remained on the porch during the encounter, although only Bailey spoke
with Swindell. Swindell immediately advised Bailey that he was not under arrest.
Shortly thereafter, Swindell retreated off the porch to establish what he described
as a “reactionary gap” between himself and Bailey—a distance that Jeremy
estimated could have been as far as 13 feet. Swindell asked Bailey to speak with
him privately by his patrol car, but Bailey declined, saying that he wasn’t
comfortable doing so. Swindell then told Evelyn and Jeremy to go back inside so
that he could talk to Bailey alone, but they, too, refused. Bailey asked Swindell
why he was there, but Swindell initially didn’t respond; he eventually said that he
was there to investigate, although he never clarified exactly what he was
investigating. Frustration growing, Swindell then repeatedly demanded—at a
information he had at the time that he confronted Bailey was contained in the first full paragraph of his offense report, which we reproduce here: While speaking with Dep. Magdalany he advised me of the following: [a]ccording to Sherri, she and Kenneth separated approximately 3 months ago[,] and Kenneth moved out. Since this time, Kenneth has continuously harassed Sherri by showing up at their marital home unannounced while she is home and while she is not home. During the incidents where Sherri is not home Kenneth will turn pictures face down, and move things inside the home to let his presence be known. During this time frame[,] Kenneth had cameras installed inside the home without her knowledge. Sherri also told Dep. Magdalany that Kenneth is not acting right and has “snapped”. During tonight’s incident, Sherri and Kenneth got into a verbal argument, but at this time Dep. Magdalany had not determined if a crime occurred and was still investigating the incident.
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yell—that Evelyn and Jeremy return to the house and that Bailey talk to him by his
patrol car, but no one complied.
Bailey then announced that he was heading inside and turned back into the
house. Without first announcing an intention to detain Bailey, Swindell charged
after him and “tackle[d] [him] . . . into the living room,” simultaneously declaring,
“I am going to tase you.” Importantly for our purposes, by that time Bailey was—
as he, Evelyn, and Jeremy all testified—already completely inside the house.
Swindell then proceeded to arrest Bailey.
B
Bailey sued for false arrest under the Fourth Amendment, but the district
court rejected his claim.3 In particular, the court reasoned that when Bailey
retreated into his house, he at least arguably obstructed Swindell in the lawful
exercise of his duty, and thereby violated Fla. Stat. § 843.02, which makes
resisting an officer without violence a first-degree misdemeanor. Accordingly, the
court granted Swindell qualified immunity and granted summary judgment in his
favor.
3 Bailey brought other claims that are not before us on appeal. The district court allowed a Fourth Amendment excessive-force claim to go to trial, and the jury returned a verdict for Swindell. Bailey doesn’t challenge that verdict on appeal. Nor does Bailey challenge the dismissal of his state-law claims.
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Significantly, the district court failed to address Bailey’s argument—which
he reiterates on appeal—that even assuming that probable cause existed, Swindell
violated “clearly established” law when he arrested Bailey inside his parents’ home
without a warrant.4 We agree and accordingly reverse.
II
To obtain the benefit of qualified immunity, a government official “bears the
initial burden of establishing that he was acting within his discretionary authority.”
Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019) (citing Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). Where, as here, it is undisputed
that this requirement is satisfied, the burden shifts to the plaintiff to “show both (1)
that [he] suffered a violation of a constitutional right and (2) that the right [he]
claims was ‘clearly established’ at the time of the alleged misconduct.” Id.
Bailey contends that his arrest violated clearly established Fourth
Amendment law for two distinct reasons. First, he asserts that Swindell lacked
probable cause to arrest him. Second, he argues that, in any event, Swindell
impermissibly arrested him inside his home without a warrant.
4 The district court must have rejected this argument in reaching the result that it did, because Bailey clearly raised it. In particular, Bailey contended that “[i]t would not be enough that Deputy Swindell had a good faith belief, probable cause, or arguable probable cause that a misdemeanor crime had been committed . . . [as] Deputy Swindell was not free to enter Mr. Bailey’s home for the purpose of either detaining him or arresting him.” Continuing, Bailey argued that “it is not easy to see how the warrantless entry . . . is anything but a violation of an established right to be free from unreasonable seizure . . . in your own home.”
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It is clear, of course, that “[a] warrantless arrest without probable cause
violates the Constitution.” Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir.
1990) (citation omitted). But if “reasonable officers in the same circumstances and
possessing the same knowledge as the [d]efendant[] could have believed that
probable cause existed,” then the absence of probable cause is not “clearly
established,” and qualified immunity applies. Von Stein v. Brescher, 904 F.2d 572,
579–80 (11th Cir. 1990). In that circumstance, what we have called “arguable
probable cause” suffices to trigger qualified immunity. Skop, 485 F.3d at 1137. 5
Swindell contends, and the district court held, “that Deputy Swindell had
arguable probable cause to arrest Bailey for violating Fla. Stat. § 843.02.” We
needn’t decide whether the district court was correct in so holding because we
ultimately conclude that Bailey’s arrest was effectuated inside Bailey’s home
5 Some of our decisions have erroneously suggested that the “arguable probable cause” standard applies at the first step of the qualified-immunity analysis, in determining whether a constitutional violation has occurred. See, e.g., Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) (“[V]iewing the facts in the light most favorable to Storck, she has not established a constitutional violation because, at the very least, McHugh had arguable probable cause.”). Controlling case law makes clear, however, that “arguable probable cause” is a step- two standard. See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (“Sellers- Sampson is entitled to qualified immunity because he had arguable probable cause to arrest Lirio. Put differently, Lirio has not shown that the law of probable cause is so clearly established that no reasonable officer, faced with the situation before Sellers-Sampson, could have believed that probable cause to arrest existed.”), modified, 14 F.3d 583 (11th Cir. 1994); see also Huebner, 935 F.3d at 1190 n.6 (“Accordingly, we needn’t reach the question whether McDonough had ‘arguable probable cause,’ which comes into play only at the second, ‘clearly established’ step of the qualified-immunity analysis.” (citation omitted)).
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without warrant, consent, or exigent circumstances. Such an arrest violates the
Fourth Amendment even if supported by probable cause. For present purposes,
therefore, we will simply assume—without deciding—that Swindell had probable
cause.
When it comes to warrantless arrests, the Supreme Court has drawn a “firm
line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590 (1980).
Accordingly, while police don’t need a warrant to make an arrest in a public place,
the Fourth Amendment “prohibits the police from making a warrantless and
nonconsensual entry into a suspect’s home in order to” arrest him. Id. at 576.
Swindell doesn’t dispute Payton’s rule as a general matter, but he insists that this
case is controlled by the Court’s pre-Payton decision in United States v. Santana,
427 U.S. 38 (1976)—which, he says, holds that “standing in a doorway or on a
porch is considered a public place, wherein there is no expectation of privacy or
need to obtain a warrant to initiate an arrest.” Br. for Appellee at 50. Although the
facts of this case do bear some superficial similarity to those in Santana, we find
ourselves constrained to reject Swindell’s argument.
In Santana, officers who had just conducted a sting operation and arrested a
heroin dealer returned to arrest the dealer’s supplier. 427 U.S. at 40. As the
officers approached, they saw the suspect, Dominga Santana, in her doorway
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roughly 15 feet away holding a brown paper bag. Id. The officers “got out of their
van, shouting ‘police,’ and displaying their identification.” Id. Santana retreated
through the door and into her house, but the officers followed and took her into
custody. Id. at 40–41. The Supreme Court approved the warrantless arrest
because it was supported by probable cause and, importantly here, because it began
in a “public place.” Id. at 42 (quotation marks omitted). For the Court, the fact
that the arrest continued into Santana’s home after beginning on the threshold
presented no difficulty because the police there were engaged in a case of “true hot
pursuit”—an exigent circumstance that justifies a departure from the usual warrant
requirement. Id. at 42–43 (quotation marks omitted).
While this case similarly involves an arrest in or around a doorway, Santana
does not stand for the proposition that the Fourth Amendment authorizes any
warrantless arrest that begins near an open door. Santana’s arrest was initiated
while she was standing—at least partly—outside her house, and she only
subsequently retreated within it. Bailey, by contrast, was—again, taking the facts
in the light most favorable to him—completely inside his parents’ home before
Swindell arrested him. Swindell neither physically nor verbally, and neither
explicitly nor implicitly, initiated the arrest until Bailey had retreated fully into the
house. As we will explain, that means that this case is controlled by Payton, not
Santana.
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Payton involved two consolidated cases. In the first, officers showed up at
Theodore Payton’s apartment to arrest him the day after they had “assembled
evidence sufficient to establish probable cause” that he had murdered a man. 445
U.S. at 576. When Payton didn’t answer his door, the officers broke in with the
intention of arresting him. Id. Although they determined that Payton wasn’t
home, they discovered evidence of his crime in plain view, and Payton later turned
himself in. Id. at 576–77. In the second case, officers obtained the address of Obie
Riddick, whose robbery victims had identified as their assailant. Id. at 578.
Without obtaining a warrant, the officers knocked on Riddick’s door, saw him
when his young son opened it, and entered the house and arrested him on the spot.
Id. Both Payton and Riddick were convicted based on evidence discovered in the
course of the officers’ warrantless entries into their homes, and the New York
Court of Appeals affirmed both convictions. Id. at 579. The Supreme Court
reversed both, holding that “[a]bsent exigent circumstances”—and even assuming
the existence of probable cause—the threshold of the home “may not reasonably
be crossed without a warrant.” Id. at 590.
Our precedent reconciling Santana and Payton is clear. We have expressly
refused to read Santana “as allowing physical entry past Payton’s firm
line . . . without a warrant or an exigency.” McClish v. Nugent, 483 F.3d 1231,
1246 (11th Cir. 2007). Santana’s description of “the doorway of [a] house” as a
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“public place,” 427 U.S. at 40, 42 (quotation marks omitted), we have said,
shouldn’t be misinterpreted to mean that officers have a right to enter and arrest
anyone standing in an open doorway without a warrant. McClish, 483 F.3d at
1247. Instead, we have explained, it simply means that a person standing in a
doorway is in “public” in the sense that he puts himself in the “the plain view” of
any officers observing from the street. Id. (quoting Hadley v. Williams, 368 F.3d
747, 750 (7th Cir. 2004)). In so doing, the suspect “may well provide an officer
with a basis for finding probable cause or an exigency,” but he does not “surrender
or forfeit every reasonable expectation of privacy . . . including . . . the right to be
secure within his home from a warrantless arrest.” Id.; see also Moore v.
Pederson, 806 F.3d 1036, 1050 n.14 (11th Cir. 2015) (observing that “McClish
clearly established that an officer may not execute a warrantless arrest without
probable cause and either consent or exigent circumstances, even if the arrestee is
standing in the doorway of his home when the officers conduct the arrest”). The
bottom line, post-Payton: Unless a warrant is obtained or an exigency exists, “any
physical invasion of the structure of the home, by even a fraction of an inch, [is]
too much.” Kyllo v. United States, 533 U.S. 27, 37 (2001) (quotation marks and
citation omitted).
In order to prevail based on Santana, then, Swindell would have to point to
some exigent circumstance, but the exigencies present in Santana are absent here.
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Santana primarily involved the “hot pursuit” exception to the warrant requirement,
and the Court there separately alluded to the risk that evidence would be destroyed.
Id. at 43. Neither of those exigencies, however, can justify Bailey’s arrest.6
In Santana, the suspect’s arrest was “set in motion in a public place,” a
crucial element of the hot-pursuit exception. Id. at 43. It was only after officers
shouted “police” that Santana retreated fully inside her house. Id. at 40. Bailey’s
arrest, by contrast, wasn’t initiated in public, and therefore can’t qualify as a “true
hot pursuit.” Id. at 42 (quotation marks omitted). Swindell gave no indication that
he intended to arrest Bailey before he threatened to tase him and simultaneously
tackled him from behind. Taken in the light most favorable to Bailey, the facts
demonstrate that the threat and tackle occurred only after Bailey had retreated
entirely into the house, so “hot pursuit” provides no justification for the warrantless
entry here. If Santana were understood to cover warrantless arrests “set in motion”
inside a home, then the hot-pursuit exception would quite literally swallow
Payton’s rule.
6 Swindell arguably waived any argument that his warrantless arrest of Bailey was supported by exigent circumstances because he didn’t raise the issue in his brief. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (“Parties must submit all issues on appeal in their initial briefs.” (citations omitted)). Read charitably, his citation of Santana could be understood to invoke the exigencies on which the Court in that case relied, so we will analyze those circumstances here.
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The Santana Court also relied in part on “a realistic expectation that any
delay would result in destruction of evidence.” Id. at 43 (citation omitted).
Swindell’s counsel expressly disclaimed any reliance on this kind of exigency at
oral argument—and with good reason, as the circumstances here posed no risk that
any evidence would be destroyed. Indeed, with respect to the charge for which
Bailey was arrested—resisting Swindell’s initial effort to detain him, in violation
of Fla. Stat. § 843.02—there wasn’t any physical evidence; rather, all relevant
evidence existed in the minds of Swindell, Bailey, Evelyn, and Jeremy.7
Because Swindell can point to no exigency, he violated the Fourth
Amendment when he crossed the threshold to effectuate a warrantless, in-home
arrest.
* * *
Of course, Swindell loses the cover of qualified immunity only if the
constitutional right that he violated was “clearly established” at the time of the
events in question. McClish, 483 F.3d at 1237. It was.
7 Although Swindell didn’t present any exigent-circumstances arguments in his brief, he did raise a concern about officer safety at oral argument, contending that Swindell feared that Bailey would return to the porch with a weapon. That argument is not only waived, see Nealy, 232 F.3d at 830, but also wholly speculative, as there was no evidence to suggest that anyone had a weapon pre-arrest.
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Qualified immunity “operates ‘to protect officers from the sometimes hazy
border[s]’” of constitutional rules. Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(quotation mark omitted) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). In
so doing, it “liberates government agents from the need to constantly err on the
side of caution.” Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir. 2003). Here,
though, Swindell crossed a constitutional line that—far from being hazy—was “not
only firm but also bright.” Kyllo, 533 U.S. at 40. That line—no warrantless in-
home arrests absent exigent circumstances—was drawn unambiguously in Payton,
traces its roots in more ancient sources, and has been reaffirmed repeatedly since.
See, e.g., Kirk v. Louisiana, 536 U.S. 635, 636 (2002); Kyllo, 533 U.S. at 40; Welsh
v. Wisconsin, 466 U.S. 740, 754 (1984); see also Johnson v. United States, 333
U.S. 10, 15 (1948). And to be clear, Swindell can’t point to Santana as a source of
uncertainty in the law. The defendant in McClish ruined that chance; he made the
same “What about Santana?” argument, and we indulged it there, 483 F.3d at
1243, but in so doing we expressly rejected it on a going-forward basis, id. at
1243–48. Finally, to the extent that any ambiguity remained, we expressly
reiterated McClish’s holding in Moore, explaining—in terms that apply here
precisely—that a warrant (or exception) is always required for a home arrest “even
if the arrestee is standing in the doorway of his home when the officers conduct the
arrest.” 806 F.3d at 1050 n.14.
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Because Swindell violated clearly established Fourth Amendment law, he is
not entitled to qualified immunity.
III
We hold that Swindell violated the Fourth Amendment’s protection against
unreasonable seizures when he arrested Bailey inside his home. We further hold
that Bailey’s right to be free from a warrantless, in-home arrest was clearly
established and that no exception to the warrant requirement even plausibly applies
in this case. Accordingly, we REVERSE the district court’s judgment and
REMAND for further proceedings consistent with this opinion.