     Case: 13-10960   Document: 00512920127     Page: 1   Date Filed: 01/29/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                     Fifth Circuit

                                                                          FILED
                                                                      January 29, 2015
                                   13-10960
                                                                       Lyle W. Cayce
                                                                            Clerk
ROGER DALE TRENT; VICKIE DARLENE TRENT; RICHARD DALE
TRENT; and RANDAL DEAN TRENT,

                                           Plaintiffs–Appellees,

v.

STEVEN WADE and MATTHEW WALLING,

                                           Defendants–Appellants.


                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, ELROD, and COSTA, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      We sua sponte withdraw the prior panel opinion, Trent v. Wade, No. 13-
10960, 2015 WL 148989 (5th Cir. 2015) and substitute the following:
      This appeal follows the district court’s denial of the defendants–
appellants’ motion for summary judgment on qualified immunity grounds. The
plaintiffs–appellees are members of the Trent family—father, mother, and two
sons, in the order listed in the caption. At all times relevant, the defendants–
appellants were police officers in Rowlett, Texas—Steven Wade a patrol officer
and Matthew Walling the Chief of Police. The Trents filed a lawsuit pursuant
to 42 U.S.C. § 1983, alleging, inter alia, violations of their Fourth Amendment
rights to be free from unreasonable searches and seizures. Particular to this
appeal, the claims against Wade, in his individual capacity, involve a
    Case: 13-10960     Document: 00512920127     Page: 2   Date Filed: 01/29/2015



                                  No. 13-10960
nighttime vehicle chase that concluded with: (1) Wade entering and searching
the Trents’ home without knocking and announcing his presence; and (2) Wade
seizing and impounding the Trents’ all-terrain vehicle (“ATV”). The claim
against Walling is not premised upon his actions the night of the chase.
Instead, the Trents allege that Walling, in his official capacity as a policymaker
for Rowlett, is liable under Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978).
      The district court concluded that there were genuine issues of material
fact as to Wade’s entry into the Trents’ house without knocking and
announcing and denied Wade qualified immunity. On appeal, Wade argues
that the factual issues are not material because there is a per se hot pursuit
exception to the knock and announce rule.          We disagree.     It is clearly
established that there is no per se hot pursuit exception to the knock and
announce rule. Because the district court was correct in ruling that hot pursuit
does not automatically excuse an officer from knocking and announcing, we
affirm with respect to the knock-and-announce claim. See, e.g., Juarez v.
Aguilar, 666 F.3d 325, 334 (5th Cir. 2011).       The district court also found
genuine issues of fact with respect to the ATV seizure. Because Wade did not
violate clearly established law, even on the Trents’ version of the facts, we
reverse as to the ATV claim. Finally, because qualified immunity is not at
issue in the claim against Walling, we dismiss Walling’s appeal for lack of
jurisdiction.
                                        I.
                                       A.
      The district court’s thorough opinion describes the events giving rise to
this litigation. See Trent v. Wade, No. 3:12-CV-1244, slip op. at 1–7 (N.D. Tex.




                                        2
     Case: 13-10960         Document: 00512920127          Page: 3     Date Filed: 01/29/2015



                                         No. 13-10960
Aug. 9, 2013). We recount the most pertinent facts here. 1 The record reflects
that, several years prior to the night in question, some “friction” developed
between the Trents and the police department in Rowlett.                        For example,
Walling was a member of an association that attempted, via referendum, to
obtain civil service status for the police department. Spearheading the effort
to defeat the referendum was Roger Trent. Roger also was arrested for (but
was never convicted of) stealing campaign signs associated with that
referendum. Furthermore, Roger supported a particular mayoral candidate
who, the Trents contend, was disfavored by the police department. In their
complaint, the Trents allege that members of the police department, in
response to Roger’s political activism, engaged in “harassment and
intimidation against the Trents, culminating in an illegal middle-of-the-night
raid into their home.” This alleged raid is the subject of the dispute on appeal.
       One night in November 2011, at approximately 2:00 a.m., Wade was
patrolling the President George Bush Turnpike in Rowlett. 2                         Wade had
received reports of criminal activity in the area. After seeing two ATVs racing
southbound on the closed portion of the turnpike’s northbound lane, Wade
turned on his emergency lights in an attempt to make a traffic stop. One of
the drivers (later identified as Richard Trent) steered past Wade’s cruiser,
turned into an open pasture, and accelerated off-road. Wade pursued the ATV.
Less than one minute into the pursuit, Wade and Richard both arrived at the
Trents’ home. Richard parked the ATV under the porte cochere and ran to an
exterior door of the home, which was several feet from the parked ATV. In



       1Because this appeal arises from the denial of the officers’ motion for summary
judgment, we view the facts in the light most favorable to the nonmoving parties below, the
Trents. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).

       2   The camera in Wade’s police cruiser captured a portion of the night’s events on video.

                                                 3
    Case: 13-10960    Document: 00512920127     Page: 4   Date Filed: 01/29/2015



                                 No. 13-10960
turn, Wade pulled up and parked his cruiser within several feet of the ATV.
Wade was familiar with the Trents’ property (and was also aware of the
“friction” between the Trents and the police department). As he ran through
the door and into the home, Richard looked back at Wade. Wade testified that
he did not see Richard throw out or pick up any potential evidence or any
weapon.
      Up to this point, for purposes of this appeal, no unconstitutional activity
is alleged to have occurred. Then, approximately ten seconds after Richard ran
into the home, Wade walked up to the house, opened the same door, and—
without hesitation and without knocking or announcing his presence—stepped
across the threshold of the Trents’ home, forming the basis of the first of two
claims against Wade at issue on appeal.
      Upon entry into the home, Wade yelled: “Get out here.” Wade also
requested backup, relaying to the dispatcher: “I’m at Roger Trent’s location.”
Still in the home, Wade again yelled for Richard to exit the residence: “Better
get out here. Get out here.” Wade testified that he heard several people
moving upstairs. After standing inside the door for approximately ninety
seconds, Wade went outside to meet the backup officers, who arrived in a
matter of minutes. Wade then marched back into the home through the same
door, gun drawn, and shouted back to the officers: “They’re upstairs.” Again,
Wade did not knock and announce his presence. Two other officers followed
behind through the same door; neither knocked or announced his presence.
      Moving farther into the home, the officers encountered the other
members of the Trent family. Wade and Roger had the following exchange:
      Wade:       Get back. Get back. I got a felony in progress. Get
                  back. You better get your a-- back. Back up.
      Roger:      You pulled a gun on me.
      Wade:       You bet I did. Get back.
      Roger:      What do you want me to do? Go back to bed?

                                       4
     Case: 13-10960        Document: 00512920127         Page: 5     Date Filed: 01/29/2015



                                        No. 13-10960
      Wade:           No. I want the kid that ran in the house.
      Roger:          Yeah. Well, who is that?
      Wade:           You tell me.
      Roger:          I just, you just woke me up.
After directing one of the other officers to “check under the bed,” Wade
repeatedly asked: “Where’s the kid at?” In response, Vickie Trent expressed
confusion: “I really don’t know what’s going on.” Still failing to find Richard,
Wade spoke again to one of the other officers: “Did you look under the beds
and everything? . . . Just check it again. Sweep it.”
      Wade and the other officers soon discovered Richard inside the home.
Richard was arrested for evading on a vehicle and taken out of the home.
Simultaneously, Roger and Vickie attempted to explain that, as a “special
child,” 3 Richard probably did not understand what was happening. Wade
warned Roger: “Back up or you’re going to jail.” Wade also told Roger and
Vickie: “Okay, I risked my life chasing him through the streets and over here.”
      After the arrest, Wade had the following exchange with the other
officers:
      Officer:        So you just f--king went in after (descriptive sound).
      Wade:           I chased him through that field.
      Officer:        Did you really? He left that door open, or what?
      Wade:           No.
      Officer:        Unlocked?
      Wade:           Yeah.
      Officer:        Who is this guy that we’re supposed to know? He kept
                      saying, You’re supposed to know me.
      Wade:           This is Roger Trent.
      Officer:        He hates the police.
      Wade:           He hates us.
      Officer:        He hates the police, he hates the fire.
      Officer:        He’s big money, though, right?
      Wade:           Yeah. Owns Hooters.
                      ....


      3   Richard is in his early twenties and suffers from “mental retardation.”
                                               5
    Case: 13-10960    Document: 00512920127     Page: 6   Date Filed: 01/29/2015



                                 No. 13-10960
      Wade:       Yeah, didn’t you-all hear me say I was at Roger Trent’s
                  house?
      Officer:    Yeah, I did. I knew exactly who you were talking
                  about as soon as I came over here.
      Officer:    I was fixing to taze him when you were walking up to
                  him and you had the gun pointed at him.
Roger approached the officers gathered outside the home, again attempting to
explain that his son did not understand what he had done. Wade dismissed
that notion: “Running from the police is a felony offense, which gives me a
reason in a fresh pursuit to chase him inside the house and take him into
custody.”
      Wade and the other officers then turned to the ATV and commenced with
the actions that form the basis of the second claim at issue on appeal. The
officers conducted an exterior inspection of the ATV, removed some paneling,
and looked through the interior compartments. Wade ultimately had the ATV
towed and impounded.
      A grand jury “no billed” Richard on charges related to evading arrest that
night in November.
                                      B.
      Based on the above-described facts and others, the Trents sued. The
Trents asserted § 1983 claims against Wade for: (1) an unconstitutional search,
alleging that Wade entered the home without knocking and announcing his
presence and searched the home without a warrant; (2) unconstitutional
seizures, alleging that Wade seized Richard and the ATV without a warrant;
and (3) First Amendment retaliation, alleging that Wade’s actions were
retaliation for Roger’s political activism.   The Trents asserted one claim
against Walling, alleging that, as the “final policymaker” for Rowlett, Walling
implemented unconstitutional policies and failed to properly supervise his
officers. The defendants moved for summary judgment, and the district court

                                       6
    Case: 13-10960    Document: 00512920127    Page: 7      Date Filed: 01/29/2015



                                No. 13-10960
“confined summary judgment to the issue of qualified immunity.” At the same
time, the district court “STAY[ED] discovery and summary judgment on the
issue of sovereign immunity,” explaining that sovereign immunity was
relevant to the claim against Walling.
      The district court granted in part and denied in part the defendants’
motion for summary judgment on qualified immunity grounds. Regarding the
first claim, the district court granted the motion with respect to the
warrantless search, reasoning that Wade was in “hot pursuit,” but denied the
motion with respect to the no-knock entry, concluding that genuine issues of
material fact remained. Regarding the second claim, the district court granted
the motion with respect to the seizure of Richard but denied the motion with
respect to the seizure of the ATV because genuine issues of material fact
remained. Regarding the third claim, the district court granted the motion.
      The district court further concluded that the motion for summary
judgment with respect to Walling was “premature,” stating in a footnote: “As
the Court has stayed all discovery related to sovereign immunity, summary
judgment in favor of Chief Walling is denied but may be re-urged after
sufficient discovery on the issue of sovereign immunity.”
      Wade and Walling filed a single notice of interlocutory appeal, asserting
that “the Court’s order denie[d] Summary Judgment predicated upon Qualified
Immunity.”
                                      II.
      A district court’s denial of a motion for summary judgment on the basis
of qualified immunity is immediately appealable under the collateral order
doctrine, to the extent that the order turns on a matter of law. Kovacic v.
Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). Summary judgment is required
when “the movant shows that 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.
                                         7
    Case: 13-10960      Document: 00512920127    Page: 8   Date Filed: 01/29/2015



                                  No. 13-10960
P. 56(a). “Whenever the district court denies an official’s motion for summary
judgment predicated upon qualified immunity, the district court can be
thought of as making two distinct determinations, even if only implicitly.
First, the district court decides that a certain course of conduct would, as a
matter of law, be objectively unreasonable in light of clearly established law.
Second, the court decides that a genuine issue of fact exists regarding whether
the defendant(s) did, in fact, engage in such conduct. According to the Supreme
Court, as well as our own precedents, we lack jurisdiction to review conclusions
of the second type on interlocutory appeal.          Stated differently, in an
interlocutory appeal we cannot challenge the district court’s assessments
regarding the sufficiency of the evidence—that is, the question whether there
is enough evidence in the record for a jury to conclude that certain facts are
true.”    Kinney v. Weaver, 367 F.3d 337, 346–47 (5th Cir. 2004) (en banc)
(internal quotation marks and citations omitted). Although we lack jurisdiction
to resolve “the genuineness of any factual disputes,” we have jurisdiction to
determine “whether the factual disputes are material.” Kovacic, 628 F.3d at
211 n.1.     We thus review “the district court’s legal determination of the
materiality of the identified fact issues” de novo. Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010).
         A good-faith assertion of qualified immunity “alters the usual summary
judgment burden of proof.” Id. We draw all inferences in favor of the plaintiff
(i.e., the nonmovant), but once a state official (i.e., the movant) asserts the
defense, the burden shifts to the plaintiff to show that the defense is not
available. Kovacic, 628 F.3d at 211. The plaintiff therefore bears the burden
of showing a genuine and material dispute as to whether the official is entitled
to qualified immunity. Brown, 623 F.3d at 253. “But, as explained above, in
an interlocutory appeal we lack the power to review the district court’s decision
that a genuine factual dispute exists. Therefore, we do not apply the standard
                                        8
      Case: 13-10960   Document: 00512920127     Page: 9   Date Filed: 01/29/2015



                                  No. 13-10960
of Rule 56 but instead consider only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.” Kinney, 367 F.3d
at 348. “Where factual disputes exist in an interlocutory appeal asserting
qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id.
       The doctrine of qualified immunity “insulate[s]” state officials from
liability to the extent that the officials’ actions do not violate “clearly
established statutory or constitutional rights.”     Kovacic, 628 F.3d at 213
(internal quotation marks omitted). “The basic steps of our qualified-immunity
inquiry are well-known: a plaintiff seeking to defeat qualified immunity 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.”
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)). We have discretion “in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 242 (2009); see also Plumhoff v. Rickard,
134 S. Ct. 2012, 2020 (2014) (“[W]e begin in this case with the question whether
the officers’ conduct violated the Fourth Amendment.         This approach, we
believe, will be beneficial in developing constitutional precedent in an area that
courts typically consider in cases in which the defendant asserts a qualified
immunity defense.” (alterations and internal quotation marks omitted)).        In
conducting the qualified immunity analysis, we “may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.” Tolan, 134
S. Ct. at 1866.
       Within this framework, we address Wade’s entitlement to qualified
immunity vel non in Part III. We address the claim against Walling in Part
IV.
                                        9
    Case: 13-10960    Document: 00512920127       Page: 10   Date Filed: 01/29/2015



                                  No. 13-10960
                                        III.
      The district court denied qualified immunity to Wade on the Trents’ two
Fourth Amendment claims. The Fourth Amendment guarantees “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable    searches    and    seizures.”     As   the   text   makes     clear,
“reasonableness” is “the ultimate touchstone of the Fourth Amendment.”
Fernandez v. California, 134 S. Ct. 1126, 1132 (2014) (internal quotation
marks omitted); see also New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (“[T]he
underlying command of the Fourth Amendment is always that searches and
seizures be reasonable . . . .”); Carroll v. United States, 267 U.S. 132, 149 (1925)
(“The Fourth Amendment is to be construed in light of what was deemed an
unreasonable search and seizure when it was adopted, and in a manner which
will conserve public interests as well as the interests and rights of individual
citizens.”).
      We start with the claim based on Wade’s failure to knock and announce
his presence and then turn to the claim based on the seizure of the ATV.
                                        A.
      There is no dispute that Wade neither knocked nor announced his
presence prior to entering the Trents’ home. The district court concluded that
there was a fact issue regarding whether Wade had a “reasonable suspicion of
activity” that would justify dispensing with the knock-and-announce
requirement.    In their brief, the defendants rely heavily on the “futility”
justification, pointing to Richard’s demonstrated unwillingness to comply with
the law that night: “Richard could have stopped at any point during the flight
through the open field, but instead continued to demonstrate to Officer Wade
that he would not comply with the lawful stop.” Thus, the defendants argue
that “[a]ny additional attempt to gain compliance from the suspect under these
circumstances would have been a useless gesture or senseless ceremony on the
                                        10
    Case: 13-10960       Document: 00512920127        Page: 11     Date Filed: 01/29/2015



                                      No. 13-10960
part of Officer Wade.” 4 Arguing that there are fact issues that should be
resolved at trial, the Trents urge us to affirm the district court’s decision.
However, as discussed, we lack jurisdiction to review the district court’s
determination that there were genuine issues of fact.                We may, however,
consider Wade’s legal argument that his hot pursuit excused him from the
knock-and-announce requirement as a matter of law.
                                            1.
       It is axiomatic that what is reasonable depends on the circumstances,
and the circumstances of a search and seizure carried out in a home necessarily
include the officer’s entry into the home. Thus, as “the Framers of the Fourth
Amendment” recognized, even where the authority to enter a home is not
challenged, “the method of an officer’s entry into a dwelling [i]s among the
factors to be considered in assessing the reasonableness of a search or seizure.”
Wilson v. Arkansas, 514 U.S. 927, 934 (1995). Evaluating the reasonableness
of the method of entry, moreover, “depend[s] in part on whether law
enforcement officers announced their presence and authority prior to entry.”
Id. at 931.     The general rule therefore is that an officer must knock and
announce his presence and authority prior to entering a home.
       As with other aspects of Fourth Amendment law, the knock-and-
announce rule is defined by its exceptions. Building on Wilson, the Supreme
Court announced in Richards v. Wisconsin: “[I]n each case, it is the duty of a
court confronted with the question to determine whether the facts and
circumstances of the particular entry justified dispensing with the knock-and-



       4 In the briefing, the defendants use the terms “futility” and “useless gesture”
interchangeably. The Trents and the district court, at least in form, distinguish the terms.
The word “futile” means “useless,” and the Supreme Court, in the decisions discussed below,
enumerated the futility justification without addressing or distinguishing the concept of
useless gesture. Accordingly, we view the two terms as one and the same.

                                            11
    Case: 13-10960    Document: 00512920127      Page: 12   Date Filed: 01/29/2015



                                  No. 13-10960
announce requirement.” 520 U.S. 385, 394 (1997); see Wilson, 514 U.S. at 934
(“The Fourth Amendment’s flexible requirement of reasonableness should not
be read to mandate a rigid rule of announcement that ignores countervailing
law enforcement interests. . . . [T]he common-law principle of announcement
was never stated as an inflexible rule requiring announcement under all
circumstances.”). The Supreme Court went on to explicitly identify several
justifications for “dispensing with the knock-and-announce requirement”:
      In order to justify a “no-knock” entry, the police must have a
      reasonable suspicion that knocking and announcing their
      presence, under the particular circumstances, would be dangerous
      or futile, or that it would inhibit the effective investigation of the
      crime by, for example, allowing the destruction of evidence.
Richards, 520 U.S. at 394; see also Hudson v. Michigan, 547 U.S. 586, 589–90
(2006). Following Richards, we require officers to “at least articulate” the
reasonable suspicion justifying the no-knock entry. United States v. Cantu,
230 F.3d 148, 152 (5th Cir. 2000); see also Bishop v. Arcuri, 674 F.3d 456, 466
(5th Cir. 2012) (“‘[R]easonable suspicion’ must be derived from specific facts
and circumstance[s] surrounding a search.”).         The reasonableness of the
officer’s suspicion is evaluated as of the time of the entry. Id. at 461.
      Explaining the knock-and-announce rule (including the justifications for
dispensing with it), the Supreme Court in Richards reasoned that the rule
“strikes the appropriate balance” between “law enforcement concerns” and “the
individual privacy interests affected by no-knock entries.” Richards, 520 U.S.
at 394.   The Supreme Court also identified those privacy interests that
underlie the Fourth Amendment’s knock-and-announce rule. In particular,
individuals should have the opportunity to: (1) comply with the law and obey
an officer’s lawful demand to enter; (2) “avoid the destruction of property
occasioned by a forcible entry”; and (3) “pull on clothes or get out of bed.” Id.
at 393 n.5; see id. (“[W]hen police enter a residence without announcing their

                                        12
    Case: 13-10960        Document: 00512920127          Page: 13     Date Filed: 01/29/2015



                                       No. 13-10960
presence, the residents are not given any opportunity to prepare themselves
for such an entry.” (emphasis added)); see also Wilson, 514 U.S. at 931–33
(explaining the common-law history of the rule). The Seventh Circuit distilled
these interests thus: “The core interest protected by the knock and announce
requirement is therefore the receipt of notice by occupants of the dwelling
sufficient to avoid the degree of intrusiveness attendant to a forcible entry as
well as any potential property damage that may result.” United States v.
Espinoza, 256 F.3d 718, 727 (7th Cir. 2001) (emphasis added). The articulation
of these privacy interests teaches that the futility justification, as announced
in Richards, applies where the officer has a reasonable suspicion that it would
be futile (or useless) to announce his presence because the occupants of the
home to be searched are already on notice of his presence. Such prior notice—
without a formal announcement from the officer—satisfies the privacy
interests protected by the rule. 5
       The futility justification does not appear frequently in the case law, but
the cases that do discuss the justification support our straightforward
interpretation of the Supreme Court’s decisions. We begin with several pre-
Wilson cases that have applied a “useless gesture” exception in the context of
18 U.S.C. § 3109, 6 a longstanding federal law that generally requires federal
officers to knock and announce their “authority and purpose” before forcibly




       5 We also note that “[c]ompliance is also a safeguard for the police themselves who
might be mistaken for prowlers and be shot down by a fearful householder.” Miller, 357 U.S.
at 313 n.12.

       6 Under § 3109, when “execut[ing] a search warrant,” an “officer may break open any
outer or inner door or window of a house, or any part of a house, or anything therein, . . . if,
after notice of his authority and purpose, he is refused admittance or when necessary to
liberate himself or a person aiding him in the execution of the warrant.”


                                              13
    Case: 13-10960        Document: 00512920127          Page: 14      Date Filed: 01/29/2015



                                        No. 13-10960
entering a home to execute a warrant. 7 Our circuit addressed the useless
gesture exception in United States v. Seelig, 498 F.2d 109 (5th Cir. 1974).
There, we concluded that the exception to the “announcement-of-purpose
provision” applied where officers carrying out a warrantless search 8 “were
justified in being virtually certain that the occupants of the apartment [to be
searched] would know the purpose of the visit as soon as the persons at the
door identified themselves.” Id. at 114 (emphasis added); see also United States
v. Metz, 608 F.2d 147, 155 (5th Cir. 1979) (“[A]nnouncement is not necessary if
it would serve no useful function.”). The Third Circuit has explained the
useless gesture exception to § 3109 in similar terms. See United States v. Kane,
637 F.2d 974, 978 (3d Cir. 1981) (concluding that announcement is not required
under § 3109 “when the individuals inside kn[o]w of the officers[’] identity and
purpose, thereby making an announcement a ‘useless gesture.’” (emphasis
added)).
       Construing Wilson           and Richards,         other circuits have adopted
formulations of the futility justification that are in accord with our circuit’s
formulation of a useless gesture. For example, the Sixth Circuit has explained
that “exigent circumstances relieve officers of the knock-and-announce
requirement” when “the persons within the residence already know of the
officers’ authority and purpose.” United States v. Dice, 200 F.3d 978, 983 (6th



       7These cases do not apply the constitutional rule announced in Wilson, but they are
nonetheless instructive: Section 3109 codified the common law, and that same common law
informed the Supreme Court’s interpretation of the Fourth Amendment in Wilson and
Richards. See United States v. Ramirez, 523 U.S. 65, 73 (1998) (“[Section] 3109 includes an
exigent circumstances exception and . . . the exception’s applicability in a given instance is
measured by the same standard we articulated in Richards.”).

       8Although the statute, by its terms, applies only to the execution of search warrants,
the Supreme Court has held that “the validity of . . . an entry of a federal officer to effect an
arrest without a warrant must be tested by criteria identical with those embodied in [§ 3109].”
Sabbath v. United States, 391 U.S. 585, 588 (1968).
                                              14
    Case: 13-10960      Document: 00512920127      Page: 15   Date Filed: 01/29/2015



                                  No. 13-10960
Cir. 2000) (emphasis added), abrogated on other grounds by Hudson, 547 U.S.
586; see also United States v. Pelayo–Landero, 285 F.3d 491, 499 (6th Cir. 2002)
(citing   Dice    and   reaffirming   that   the   knock-and-announce      rule   is
“unnecessary” if “the residence occupants know the officer’s authority and
purpose” (emphasis added)). Employing a similar interpretation of the futility
justification, the Seventh Circuit reasoned that a warrantless, no-knock entry
violated the knock-and-announce rule. Green v. Butler, 420 F.3d 689 (7th Cir.
2005).    The court explained that, because the record reflected that the
“occupants . . . did not know the identity of the officers,” it therefore would not
have been “reasonable for the agents to believe that, under the circumstances,
knocking or announcing their identity and requesting permission to enter
would have been a useless gesture.” Id. at 697 (emphasis added); see also
Espinoza, 256 F.3d at 727. The Second Circuit and Ninth Circuit are in
agreement.       See United States v. Acosta, 502 F.3d 54, 59 (2d Cir. 2007)
(knocking and announcing not required “when an announcement by officers
would be futile, as may occur when the circumstances indicate that the
inhabitants are well aware of the officers’ presence” (emphasis added)); United
States v. Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003) (concluding that a no-
knock entry was justified as “futile” where the occupants of the residence were
aware of the officers’ presence because requiring the officers to “announce their
presence . . . and wait some further period of time while the occupants
reconsidered whether to admit or resist them . . . would amount to mandating
a meaningless act” (emphasis added)).
      Three key principles reveal themselves in the above discussion of the
knock-and-announce rule generally and the futility justification specifically.
First, the rule is not dependent on the officer’s authority to search the home;
otherwise, we would not have had the Supreme Court’s decision in Wilson,
which involved the execution of a warrant. The officer’s authority to enter the
                                        15
    Case: 13-10960       Document: 00512920127        Page: 16     Date Filed: 01/29/2015



                                      No. 13-10960
home—by virtue of a warrant or other exigent circumstances—is separate and
apart from the “method of an officer’s entry.” See Wilson, 514 U.S. at 934. 9
Second, any no-knock entry, regardless of the officer’s authority to enter the
home, must be justified by a reasonable suspicion, under the circumstances,
that knocking and announcing would be dangerous or futile or that it would
inhibit effective investigation of the crime. See Richards, 520 U.S. at 394.
Third, the rule contemplates that all of the occupants of a home possess the
same constitutional rights—i.e., all of the occupants are entitled to be free from
no-knock entries. The suspect is not the only one who is protected in his home,
his “‘castle of defense and asylum.’” See Wilson, 514 U.S. at 931 (quoting 3
William Blackstone, Commentaries 288). Those who live in the home enjoy
that same protection.
       “Futility” therefore justifies a no-knock entry only when the officer has
a reasonable suspicion that the occupants of the residence to be searched are
already aware of the officer’s presence. The officer must be able to articulate
this reasonable suspicion. This principle is the thread that runs from § 3109
and the Fifth Circuit’s decision in Seelig, through the Supreme Court’s
decisions in Wilson and Richards. Indeed, given the interests protected by the
knock-and-announce rule, this is the only reasonable interpretation of
Richards’s enumeration of the justification.


       9 We recognize that both Wilson and Richards arose in the context of an officer’s
execution of a search warrant. This does not limit the knock-and-announce rule to only those
scenarios, however. The rule is explicitly derived from the “reasonableness” requirement in
the Fourth Amendment, and the Supreme Court has announced a number of categories of
warrantless yet reasonable searches. See Leaf v. Shelnutt, 400 F.3d 1070, 1083 (7th Cir.
2005) (“Because the knock and announce principle is a part of the reasonableness inquiry
according to which any search is judged, it is relevant to searches conducted without a
warrant under some recognized exigency, as well as those authorized in advance by a
warrant.”); cf. Sabbath, 391 U.S. at 588 (holding that the criteria in § 3109 apply to
warrantless entries).


                                            16
    Case: 13-10960        Document: 00512920127          Page: 17     Date Filed: 01/29/2015



                                       No. 13-10960
                                              2.
       We now turn to the first prong of the qualified immunity analysis:
whether Wade violated the Constitution. See Saucier v. Katz, 533 U.S. at 200.
The question here is whether, as a matter of law, knocking and announcing is
futile when an officer is in hot pursuit of a suspect. 10 To answer this question,
we begin with Wade’s contention that the district court’s conclusion that Wade
was in “hot pursuit” justifies any violation of the rule. Citing United States v.
Santana, 427 U.S. 38 (1978), Wade argues that, in the midst of a hot pursuit,
a fleeing felon cannot retreat into his house to thwart an otherwise proper
arrest. This is true, but only as far as it goes. Santana and the hot pursuit
exception give an officer the extraordinary authority to carry out a warrantless
search or seizure in the home. The knock-and-announce rule, on the other
hand, is concerned not with the propriety of the search or arrest but rather, as
explained above, the “method of an officer’s entry.” Wilson, 514 U.S. at 934.
Santana (a pre-Wilson case) did not establish an exception to the knock-and-
announce rule or even address the method of entry. More important, neither
Wilson nor Richards invoked hot pursuit as a justification for a no-knock entry.



       10  In addition to “futility,” the defendants argue on appeal that, from Wade’s
perspective, Richard “could have been going to get help, hiding evidence, going to get or hide
a weapon, going to hurt the occupants, or any number of things.” The defendants offer no
further support for these arguments. None has merit. Starting with the end of the laundry
list, “any number of things” is plainly insufficient. Second, there is no evidence in the record
that Wade believed that Richard was going to hurt his own family. Third, there is also no
evidence that Wade believed Richard was going to hide a weapon; in fact, Wade testified that
he did not see any weapons on Richard. Fourth, there is no evidence that Wade believed that
Richard was going to get a weapon, and, in any event, Wade’s action suggest otherwise. Wade
went inside and simply stood and yelled for ninety seconds. Fifth, there is nothing in the
record indicating what evidence Richard might have been hiding. Sixth, there is no evidence
that Wade believed that Richard was getting “help.” It entirely unclear what sort of “help”
Richard could have been seeking. Accordingly, the only legitimate justification offered is
futility.


                                              17
    Case: 13-10960       Document: 00512920127          Page: 18     Date Filed: 01/29/2015



                                       No. 13-10960
        The Supreme Court made clear in Richards that, to justify a no-knock
entry, an officer must have a reasonable suspicion that knocking and
announcing would be dangerous or futile or that it would inhibit effective
investigation of the crime. Hot pursuit itself may give the officer the authority
to be inside a home without a warrant, but it does not have any bearing on the
constitutionality of the manner in which he enters the home. 11 The entry itself
is the point of the knock-and-announce rule. We conclude that hot pursuit—
unless accompanied by one of the specific justifications enumerated in
Richards—does not justify a no-knock entry. Wade points to no authority to
the contrary. The fact that the pursued in a hot pursuit is aware of the officer’s
presence says nothing, without more, about the awareness of the other
occupants of the home, all of whom are protected by the knock-and-announce
rule.        Therefore, the mere fact that the district court upheld the
constitutionality of Wade’s search of the Trents’ home as one carried out in hot
pursuit does not justify Wade’s failure to knock and announce.
        Because no blanket hot pursuit justification exists, Wade must be able
to articulate his reasonable suspicion that the occupants of the Trents’ home
were already aware of his presence before he opened the door and walked in
unannounced. At the summary judgment stage, the Trents were required to
demonstrate genuine issues of material fact about whether such reasonable


        11As a practical matter, the reason for the hot pursuit may also serve to justify a no-
knock entry: For example, when an armed and dangerous suspect flees into his house in a
hot pursuit, stopping to knock and announce might be a dangerous course of action for an
officer. Thus, what is sufficient to establish hot pursuit may sometimes—but not always—
be sufficient to justify a no-knock entry. See, e.g., Ingram v. City of Columbus, 185 F.3d 579,
589 (6th Cir. 1999) (“[T]he fact that [the defendants] were in ‘hot pursuit’ of [the plaintiff]
does not, without further justification, prove that knocking and announcing would have been
dangerous or futile, or would have prevented effective investigation of the crime. Moreover,
we decline [the defendants’] implicit invitation to ignore these clearly delineated exceptions
to the knock and announce rule and to adopt the ‘hot pursuit’ justification as a per se
exception to the knock and announce requirement.”).

                                             18
   Case: 13-10960     Document: 00512920127      Page: 19   Date Filed: 01/29/2015



                                  No. 13-10960
suspicion existed. See Brown, 623 F.3d at 253. The district court concluded
that the Trents met their burden, and we lack jurisdiction to review the district
court’s decision on that issue.
      Although the facts here demonstrate that Richard was aware of Wade’s
presence and authority, the summary judgment record reflects a fact issue as
to whether Wade knew or should have known that the whole Trent family was
in the house. As Wade testified, as soon as he walked into the house, he heard
others moving upstairs, and he told the backup officers that “they” were
upstairs. Furthermore, the record reflects a fact issue as to whether, in the
time between Wade’s arrival at the Trents’ home and his no-knock entry (a
matter of seconds), Wade developed a reasonable suspicion that the other
occupants of the home, at 2:00 a.m., were awake and aware of his authority
and purpose. The district court concluded that a genuine issue of material fact
exists as to whether “a reasonable officer would have taken into account that
other residents could have been asleep at 2:00 a.m.,” a circumstance that would
necessitate “some manner of forewarning prior to entry.” As the district court
found, “the residents appeared to be awaken[ed] not from Richard entering the
house, but rather from Wade’s entry and movement to the stairs.” In light of
the foregoing discussion, we conclude that these fact issues are material to the
question of whether Wade is entitled to qualified immunity.
                                        3.
      The second prong of the qualified immunity analysis requires us to
decide whether the knock-and-announce rule—i.e., the Trents’ right to be free
from a no-knock entry—is “clearly established.” See Saucier v. Katz, 533 U.S.
at 200.   A right is clearly established only if “the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” Plumhoff, 134 S. Ct. at 2023. A case
directly on point is not required; rather, “[t]he central concept is that of ‘fair
                                       19
    Case: 13-10960       Document: 00512920127          Page: 20     Date Filed: 01/29/2015



                                       No. 13-10960
warning’: The law can be clearly established despite notable factual
distinctions between the precedents relied on and the cases then before the
Court, so long as the prior decisions gave reasonable warning that the conduct
then at issue violated constitutional rights.” Kinney v. Weaver, 367 F.3d 337,
350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
       As explained above, Wilson and Richards placed the knock-and-
announce rule and the justifications for dispensing with it beyond debate.
With respect to the justifications, any reasonable officer would know that he
was violating the rule if he did not have reasonable suspicion that knocking
and announcing would be dangerous or futile or that it would inhibit effective
investigation of the crime. Plumhoff, 134 S. Ct. at 2023. The rule and the
justifications are therefore clearly established. 12 Any reasonable officer would
understand that, because the knock-and-announce rule serves to alert the
occupants of a home of an impending lawful intrusion, the futility justification
requires reasonable suspicion that the occupants of the home to be searched
are already aware of the officer’s presence. The Fifth Circuit’s decision in
Seelig and the Supreme Court’s decisions in Wilson and Richards gave Wade
the “fair warning” that the law requires. See Roe, 299 F.3d at 409. Although


       12  The defendants contend that, because neither the Fifth Circuit nor the Supreme
has discussed “hot pursuit” vis-à-vis the knock-and-announce rule, the cases from the Fifth
Circuit and the Supreme Court “simply cannot stand for the proposition that there is no
blanket hot pursuit exception.” As a result, the defendants argue, the law is not clearly
established with respect to knocking and announcing when in hot pursuit. Under their
approach, in the Fourth Amendment context, if a prior case has not explicitly rejected an
officer’s proposed justification for his actions, the officer, by default, would be entitled to
qualified immunity. We do not follow that approach. Instead, we view the knock-and-
announce rule as the rule and the justifications as the justifications. An officer does not act
reasonably when he blatantly disregards the rule without an accepted justification. Cf.
Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (“Time and again, [the Supreme] Court has
observed that searches and seizures conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well delineated exceptions.” (emphasis
added) (internal quotation marks omitted)).
                                             20
   Case: 13-10960     Document: 00512920127       Page: 21   Date Filed: 01/29/2015



                                  No. 13-10960
the law in our circuit is not flush with cases explaining specific circumstances
in which officers were or were not entitled to rely on the futility justification,
the knock-and-announce rule and its accompanying reasonable suspicion
requirement are clear.
      In light of the materiality of the genuine issues of fact regarding whether
Wade violated clearly established Fourth Amendment rights when he entered
the Trents’ home without knocking or announcing his presence, the district
court was correct to deny qualified immunity on this ground. The remaining
fact issues must be resolved at trial.
                                         4.
      Wade also argues that he is entitled to qualified immunity because his
actions were “objectively reasonable.” However, “objective reasonableness” is
not a separate prong in the qualified immunity analysis. As discussed, the
qualified immunity analysis involves two inquiries: (1) whether the official
violated a statutory or constitutional right and (2) whether that the right was
clearly established. Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en
banc).    The analysis does not allow us to examine the “objective
reasonableness” of an officer’s action without reference to clearly established
law. Accordingly, Wade is not entitled to qualified immunity on the ground
that his actions were “objectively reasonable.”
                                         B.
      We now address whether Wade is entitled to qualified immunity with
respect to his warrantless seizure of the ATV. We again lack jurisdiction to
review any factual disputes and resolve only the questions of law. The first
prong of the qualified immunity inquiry is whether the officer’s conduct
violated the Constitution.     As discussed, the touchstone of the Fourth
Amendment is reasonableness. Several facts suggest that the seizure of the
ATV was unreasonable. As the district court explained:
                                         21
   Case: 13-10960     Document: 00512920127      Page: 22   Date Filed: 01/29/2015



                                  No. 13-10960
            [T]he police officers did a thorough exterior search of the
      ATV and even physically removed internal compartments
      following this examination. This search revealed nothing to spur
      greater curiosity. Concerns of spoliation and gathering fruits of
      the offense (beyond perhaps the ATV itself) become tenuous. For
      the crime of evading arrest in this factual context, there was no
      evidentiary gain from riding the ATV off the premises only to
      rendezvous with a tow truck. Similarly, Wade fails to present any
      evidence to suggest that he had anything but unparticularized
      suspicion that the impound may achieve some measure of
      evidentiary worth.
Although we understand the district court’s concerns with the seizure in these
circumstances, we need not decide this constitutional question because we
conclude that the seizure did not violate clearly established law.
      “A Government official’s conduct violates clearly established law when,
at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that
what he is doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).             The
constitutional question in this case falls short of that threshold. No Supreme
Court or Fifth Circuit case directly addresses whether police may effectuate a
warrantless seizure of a vehicle under the circumstances present in this case,
and the two lines of cases most relevant to the question do not clearly establish
that Wade’s conduct violated the Fourth Amendment.
      The first line of cases involves warrantless searches and seizures of
automobiles that are designated as contraband by state law. The first in this
line of cases was Carroll v. United States, 267 U.S. 132 (1925), in which the
Supreme Court held that federal officers with probable cause to believe that
an automobile contains contraband may search the car and seize the
contraband without obtaining a warrant. Id. at 149. The Court based its
conclusion on, inter alia, early federal laws that authorized federal officers to

                                       22
    Case: 13-10960    Document: 00512920127       Page: 23   Date Filed: 01/29/2015



                                  No. 13-10960
conduct warrantless searches of ships and to seize concealed goods subject to
duties. See id. at 150–51. Based on those early laws, the Court drew a
distinction between “a search of a store, dwelling house, or other structure in
respect of which a proper official warrant readily may be obtained and a search
of a ship, motor boat, wagon, or automobile for contraband goods, where it is
not practicable to secure a warrant, because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant must be sought.” Id. at
153.
       The Court extended Carroll’s reach in Florida v. White, 526 U.S. 559
(1999). White presented the question of whether Carroll’s rule also permitted
the seizure of an automobile if police have probable cause to believe that the
automobile itself is contraband. Under Florida law, any vehicle used as an
instrumentality in the commission of a felony was designated as forfeitable
contraband.    After police officers observed a vehicle being used to deliver
cocaine, they effected a warrantless seizure of the vehicle from a public parking
lot. Relying on Carroll, the Court upheld the search, holding that officers may
seize an automobile if officers have “probable cause to believe that the vehicle
itself was contraband under [state] law.” Id. at 565. The Court reasoned that
law enforcement’s “need to seize readily movable contraband before it is
spirited away . . . is equally weighty when the automobile, as opposed to its
contents, is the contraband that the police seek to secure.” Id. The Court also
found relevant that the vehicle was seized from a public parking lot: “our
Fourth Amendment jurisprudence has consistently accorded law enforcement
officials greater latitude in exercising their duties in public places.” Id. at 565.
       The facts of the present case are in line with those of White, save for one
detail. As in White, the police officer observed the ATV being used in the
commission of a felony (evading arrest). As in White, state law designates as
contraband property “used in the commission of . . . any [specified] felony” and
                                        23
   Case: 13-10960     Document: 00512920127     Page: 24   Date Filed: 01/29/2015



                                 No. 13-10960
permits police to seize that “contraband.”          Tex. Code Crim. P. art.
59.01(2)(A)(ii); id. art. 59.02(a). However, unlike White, police in this case
seized the vehicle from the porte cochere of the Trents’ property, not from a
public parking lot.
      Notwithstanding this important distinction, Wade was entitled to rely
on White in effectuating the seizure of the ATV. As noted, neither party has
identified a Supreme Court or Fifth Circuit case addressing whether police
may effect a warrantless seizure of a vehicle as contraband when that vehicle
is located on private, rather than public, property. Thus, White appears to be
the most on-point precedent, and it permitted a similar seizure. Although the
Court in White supported its holding by noting that the vehicle was seized from
public property, the Court did not say that the seizure was permissible only
because the vehicle was located on public property. In fact, the bulk of the
analysis in White centered on Carroll and the “special considerations
recognized in the context of movable items.” White, 526 U.S. at 565. Those
“special considerations” apply regardless of whether a vehicle is located on
public or private property.      Moreover, several courts of appeals have
interpreted Carroll to permit the warrantless search of an automobile located
on a private driveway. See, e.g., United States v. Blaylock, 535 F.3d 922, 925–
27 (8th Cir. 2008); United States v. Hines, 449 F.3d 808, 813–15 (7th Cir. 2006);
United States v. Brookins, 345 F.3d 231, 237 (4th Cir. 2003); United States v.
Hatley, 15 F.3d 856, 858–59 (9th Cir. 1994). Thus, it remains an open question
whether the Fourth Amendment permits the warrantless seizure of a vehicle
from private property when state law designates that vehicle as forfeitable
contraband.   See al-Kidd, 131 S. Ct. at 2085 (“Qualified immunity gives
government officials breathing room to make reasonable but mistaken
judgments about open legal questions.”).


                                       24
    Case: 13-10960     Document: 00512920127       Page: 25    Date Filed: 01/29/2015



                                   No. 13-10960
      Even if White clearly established a public/private distinction, the facts of
this case do not clearly fall on the “private” side. In its discussion of the “public”
factor in White, the Court stressed that “the warrantless seizure also did not
involve any invasion of respondent’s privacy.” Id. at 566. The warrantless
seizure in this case also did not involve any invasion of the Trents’ privacy
because police were lawfully present on the Trents’ property as they pursued
a suspect who was evading arrest. Thus, the porte cochere was not “private”
in the same sense as would be private property to which officers had no lawful
access. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 7.3(b) (4th ed. 2004) (“[I]t would appear that the Court is also
accepting as controlling in forfeiture cases . . . that this power of warrantless
seizure . . . does not extend to vehicles situated on private premises to which
access is not otherwise available for the seizing officer.” (emphasis added)
(internal quotation marks omitted)).
      Indeed, Wade’s lawful presence on the property implicates a separate
line of cases on which Wade was also entitled to rely in effecting the seizure.
Supreme Court precedent permits officers to seize contraband in plain view so
long as its incriminating character is “immediately apparent” and the officers
are “lawfully located in a place from which the object can be plainly seen . . . .”
Horton v. California, 496 U.S. 128, 136–37 (1990) (internal quotation marks
omitted). Thus, officers executing a valid warrant to search for stolen jewelry
may also seize weapons they discover if the incriminating nature of the
weapons is readily apparent. Id. at 142; see also Warden v. Hayden, 387 U.S.
294 (1967) (holding that police may seize evidence they observe while inside a
house in hot pursuit of a suspect). Wade was lawfully on the Trents’ property
when he observed the ATV, which had just been used as an instrumentality in
the crime of evading arrest. Under these circumstances, Wade did not violate
clearly established law by effecting a seizure of the automobile. Cf. United
                                         25
    Case: 13-10960        Document: 00512920127          Page: 26     Date Filed: 01/29/2015



                                       No. 13-10960
States v. Sanchez, 612 F.3d 1, 5 (1st Cir. 2010) (relying on the plain-view
doctrine to uphold a warrantless seizure of an unlicensed motorcycle from “a
parking lot where [officers] had a right to be, and both the motorcycle and its
license plate were easily visible to the naked eye.”).
       The district court denied qualified immunity because Wade had not
shown that “any public caretaking concern is served by impounding an ATV
parked outside of a private residence.” As a result, the district court opined
that fact issues precluded a finding that the seizure was reasonable. We might
agree that no public caretaking concern was served by seizing the vehicle, but
public caretaking is just one ground upon which officers may seize a vehicle. 13
As the above discussion makes clear, vehicles also may be seized if they are
contraband subject to forfeiture under state law or if they are contraband in
plain view of an officer. See Sanchez, 612 F.3d at 3–4 (upholding seizure under
plain-view doctrine instead of addressing parties’ arguments about community
caretaking).      Thus, the fact dispute identified by the district court is
immaterial. 14
       Because Texas law allowed Wade to seize the ATV, and because Wade
was lawfully present on the Trents’ property when he effected the seizure,
Wade did not violate clearly established law when he seized the ATV. Put


       13 Public caretaking typically applies when the owner of the vehicle has been arrested
while the vehicle is on the public streets. In that situation, the public caretaking exception
to the warrant requirement allows police to impound the vehicle to protect the vehicle, its
contents, and the surrounding roadways. See Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 7.3(c) (4th ed. 2004).

       14   The district court also found that the seizure of the ATV was not reasonable because
officers had already searched it and it thus had no evidentiary value. However, White did
not clearly establish that seizures of automobiles are only permissible if the automobile has
evidentiary value. See White, 526 U.S. at 571 (Stevens, J., dissenting) (criticizing majority
opinion because “no serious fear for officer safety or loss of evidence can be asserted in this
case . . . .”).

                                              26
    Case: 13-10960       Document: 00512920127          Page: 27    Date Filed: 01/29/2015



                                      No. 13-10960
differently, Wade did not have “fair warning” that neither White nor the plain-
view doctrine would permit seizure of the ATV. Accordingly, Wade is entitled
to qualified immunity with respect to the seizure of the ATV. 15
                                                  IV.
       We now turn to Walling.           Because we have concerns regarding our
appellate jurisdiction over Walling, we sua sponte examine the basis of that
jurisdiction, which the defendants appear to presume. See Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987).
       The first issue concerns the district court’s order itself. The defendants
filed their notice of interlocutory appeal together, asserting that “the Court’s
order denie[d] Summary Judgment predicated upon Qualified Immunity.” It
is clear that, with respect to Wade, that is true. Whether the district did so
with respect to Walling, however, is not clear. The district conditioned its
ruling: “[S]ummary judgment in favor of Chief [of Police Matthew] Walling is
denied but may be re-urged after sufficient discovery on the issue of sovereign
immunity.” 16 Moreover, according to the district court, the defendants had
moved for summary judgment on qualified immunity grounds, arguing, as to
Walling, only that Walling is not the “final policymaker.” But the district court
did not rule on whether Walling was a “final policymaker” in its opinion.
Further complicating this issue, the defendants’ brief states that the district


       15 We note that we are not persuaded by the Trents’ admonition that, if Wade’s actions
were legal, every failure to use a turn signal would authorize seizure of the vehicle. Texas
law only designates as contraband automobiles used in the commission of felonies. Needless
to say, failure to use a turn signal is not a felony.

       16 Although it appears to us that the district court merely misused the phrase
“sovereign immunity” instead of the phrase “municipal liability,” we note that sovereign
immunity has no place in this case. Cf. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67
(1989) (“We cannot conclude that § 1983 was intended to disregard the well-established
immunity of a State from being sued without its consent.”); id. at n.7 (“[B]y the time of the
enactment of § 1983, municipalities no longer retained the sovereign immunity they had
previously shared with the States.”).
                                             27
    Case: 13-10960        Document: 00512920127          Page: 28     Date Filed: 01/29/2015



                                       No. 13-10960
court “did not rule on qualified immunity” for Walling. Yet the defendants also
ask us to reverse the district court and grant qualified immunity to Walling.
We therefore have doubts about whether the district court actually ruled on
Walling’s entitlement to qualified immunity such that we may exercise
appellate jurisdiction.
       More fundamental to this case is the fact that qualified immunity was
not, and is not, at issue in the claims against Walling. As the district court
observed, the Trents allege, in the only claim directed against Walling (Count
Four), that Walling is liable as the “final policymaker” for the Rowlett police
department.         The Trents further allege that Walling implemented
unconstitutional policies and failed to properly supervise his officers. These
allegations demonstrate that the Trents sued Walling in his official capacity,
not in his individual capacity. The Trents’ theory of liability therefore plainly
is grounded in municipal liability. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978); see also Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011)
(analyzing lawsuit against “Harry Connick, in his official capacity as the
Orleans Parish District Attorney,” under municipal liability principles). 17
       It is well established that “municipalities have no immunity from
damages liability flowing from their constitutional violations.” Owen v. City of
Independence, 445 U.S. 622, 657 (1980); see also Burge v. Parish of St.
Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (“Unlike government officials sued
in their individual capacities, municipal entities and local governing bodies do
not enjoy immunity from suit, either absolute or qualified, under § 1983.”);
Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 759 (5th Cir. 1993) (“While
qualified immunity shields a city’s officers from damages caused by their


       17  The Trents also acknowledge in their brief that they “sued Walling only in his
official capacity, not individually, which is equivalent to a suit against the government entity
itself.”
                                              28
    Case: 13-10960     Document: 00512920127      Page: 29    Date Filed: 01/29/2015



                                   No. 13-10960
transgression of rights not ‘clearly established’ at the time of their conduct, the
city itself is ‘strictly liable’ for all constitutional violations committed pursuant
to its policies.” (citations omitted)). As a result, the relevant questions with
respect to Walling’s liability are: (1) whether Walling’s actions amounted to
an “official municipal policy” and (2) whether those actions caused the Trents’
injury. Thompson, 131 S. Ct. at 1359. Walling may not be insulated by
qualified immunity.
      Because qualified immunity is not at issue, we may not exercise
appellate jurisdiction over Walling. Qualified immunity is the reason this case
is before us on interlocutory appeal. The Supreme Court has elaborated on the
collateral order doctrine:
      When we placed within the collateral order doctrine decisions
      denying pleas of government officials for qualified immunity, we
      stressed that an official’s qualified immunity is “an immunity from
      suit rather than a mere defense to liability; and like an absolute
      immunity, it is effectively lost if a case is erroneously permitted to
      go to trial.”
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42 (1995) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)). Thus, under circumstances like these,
where there is no qualified immunity to be denied, there is no collateral order
to be properly appealed. Walling is either liable or not liable under Monell;
qualified immunity does provide a way out. Accordingly, the proper course is
a dismissal of the appeal, with respect to Walling only, for lack of jurisdiction.
See Burge, 187 F.3d at 477 (“Because an erroneous ruling on liability may be
reviewed effectively on appeal from final judgment, the order denying the




                                         29
    Case: 13-10960      Document: 00512920127         Page: 30    Date Filed: 01/29/2015



                                     No. 13-10960
[alleged municipal policymaker’s] summary judgment motion in this ‘official
capacity’ suit was not an appealable collateral order.”). 18
                                            V.
      We AFFIRM the denial of Wade’s summary judgment motion as to the
Trents’ claim against Wade for his entry into the Trents’ house without
knocking and announcing. We REVERSE the district court and RENDER
judgment in favor of Wade as to the Trents’ claim against Wade for the seizure
of the ATV, and DISMISS Walling’s appeal of the denial of his summary
judgment motion.




      18 The Trents also filed a motion to supplement the record on appeal, seeking to
supplement the record with various e-mails exchanged between counsel regarding Walling
and the decision not to take Walling’s deposition due to the district court’s order staying
discovery on sovereign immunity. Because we dismiss the appeal with respect to Walling,
the motion is MOOT.
                                            30
