                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT          FILED
                              ______________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                     No. 07-14074                        FEBRUARY 4, 2009
                                ______________________                   THOMAS K. KAHN
                                                                             CLERK
                           D. C. Docket No. 05-60862-CV-JAL

STERLING THOMAS COWART,

                                                                   Plaintiff- Appellee
                                                                   Cross-Appellant,

versus

DEPUTY ARMANDO ENRIQUE,
BROWARD COUNTY SHERIFF DEPUTY #8706,
JEFF POOLE,
BROWARD COUNTY SHERIFF DEPUTY #9421,

                                                                   Defendants- Appellants,
                                                                   Cross-Appellees.

                                  ____________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                                ____________________

                                     (February 4, 2009)

Before TJOFLAT and CARNES, Circuit Judges, and BOWEN,* District Judge.


         *
         Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of
Georgia, sitting by designation.
PER CURIAM:

      Deputies Armando Enrique and Jeff Poole, Defendants in the case below,

appeal the judgment entered against them in the district court for violations of

Plaintiff Sterling Thomas Cowart’s rights under 42 U.S.C. §1983. Specifically,

Appellants argue that the district court erred when it instructed the jury that an

“unreasonable entry” by the deputies onto Cowart’s front yard could constitute a

violation of his Fourth Amendment rights. Deputies Enrique and Poole also appeal

the decision of the district court to allow the jury to award damages for Cowart’s

criminal defense attorney’s fees and costs, physical and emotional injury, and pain

and suffering based on the “unreasonable entry” violation. Appellee cross-appeals

on two issues. The first is whether the district court erred in refusing Cowart’s

proposed jury instruction that would have informed the jury that the deputies’ entry

onto his property without a warrant or Cowart’s permission rendered his

subsequent arrest unconstitutional as a matter of law. In response to this cross-

appeal, the Deputies reassert their claim to qualified immunity, initially raised in

the district court and denied. The second issue is whether the court erred in

creating an inconsistent verdict form and then exacerbated the error by denying

Cowart’s motion to reconcile the verdict. Because we hold that the Appellants

should have been granted qualified immunity prior to trial, we need not address the


                                           2
other issues raised in the appeal and cross-appeal.

      The Florida Department of Agriculture [FDOA] is authorized by Florida law

to inspect and remove plants for the purpose of controlling plant pests and noxious

weeds. Fla. Stat. § 581.031. On February 7, 2002, the FDOA, through its Agent

Mark Fagan, was conducting a removal of citrus trees that it had determined were

either infected or had been exposed to citrus canker, a plant pest, on the street

where Cowart resided with his life-partner, Denyse Powell. When Agent Fagan

approached the residence, Powell demanded to see a warrant, but Fagan maintained

that he did not need a warrant to enter the property and remove the citrus tree

located in the front yard. Fagan returned to his vehicle and summoned the

assistance of the Broward County Sheriff’s Department. Contemporaneously,

Powell called Cowart home from work. Deputies Enrique and Poole responded to

the call of Agent Fagan and were confronted by Cowart on the front lawn when

they arrived. The Deputies entered Cowart’s front yard, whereupon he informed

them that they could not take his tree without a warrant and that unless they had a

warrant, they must “get off his property.” The Deputies then deployed pepper

spray into Cowart’s eyes to subdue him before tackling him to the ground and

arresting him. Cowart was ultimately charged with a misdemeanor under Fla. Stat.

§ 581.211(c), for obstructing Agent Fagan’s efforts to carry out official duties.


                                           3
      After Cowart was arrested, the charges against him were dismissed by the

state court. Cowart then filed a § 1983 action in the Florida state court alleging

violation of his civil rights under the Fourth Amendment. The Deputies removed

the case to the United States District Court for the Southern District of Florida.

Each Deputy submitted an answer to Cowart’s complaint, and in their answers, the

Deputies claimed the defense of qualified immunity. The parties entered a pre-trial

stipulation in which they agreed that all actions taken by both deputies in this case

were under color of state law and that each Deputy acted “within the course and

scope of his employment with BSO.” The Deputies never moved to dismiss the

case via a Rule 12(b)(6) motion or a motion for summary judgment. Instead,

several days before the trial began, the Deputies moved for judgment as a matter of

law on the basis of qualified immunity. At the conclusion of Cowart’s case in

chief, the Deputies again moved for judgment as a matter of law on the basis of

qualified immunity, and the court reserved judgment. The Deputies renewed their

motion at the close of all evidence, and the court again reserved judgment.

      The pre-trial stipulation mentions only one disputed issue of law or fact

bearing on Cowart’s civil rights: his right not to be falsely arrested. Nevertheless

and over the Deputies’ repeated objections, the district court charged the jury on

two potential civil rights violations: lack of probable cause for the arrest and


                                           4
“unreasonable entry.” The jury returned a verdict in favor of the Deputies on the

issue of probable cause and in favor of Cowart on the issue of “unreasonable

entry.” The district court then issued an electronic or “paperless” order denying all

of the Deputies’ Rule 50 motions.

      We find that the district court erred in failing to grant the Deputies’ motion

for judgment as a matter of law on the basis of qualified immunity. Qualified

immunity “turns on an issue of law, and our review is de novo.” Courson v.

McMillian, 939 F.2d 1479, 1486 (11th Cir. 1991) (citations omitted). The doctrine

shields state officials who are sued under § 1983 from liability “for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). As the United States

Supreme Court noted in Johnson v. Frankell, this immunity shields state officials

not only from damages liability but also “from the burdens of trial.” Johnson v.

Frankell, 520 U.S. 911, 915, 117 S.Ct. 1800, 1803 (1997). For this reason, an

order by a federal district court rejecting a qualified immunity defense may be

immediately appealed under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511,

524-30, 105 S.Ct. 2806, 2814-18 (1985). In other words, a district court has the

duty to rule on the issue of qualified immunity as soon as the defense is


                                           5
demonstrated, be it on a motion to dismiss, for summary judgment, for judgment as

a matter of law, or “at any stage in the proceedings.” See Johnson, 520 U.S. at

915, 117 S.Ct. at 1803. Indeed, this Circuit has previously stated that “the

Supreme Court has urged us to apply the affirmative defense of qualified immunity

at the earliest possible stage in litigation because the defense is an immunity from

suit and not from damages only.” Marsh v. Butler County, 268 F.3d 1014, 1022

(11th Cir.2001) (internal citations omitted).

      Qualified immunity is an affirmative defense that must be pled. If the

defendant fails to plead the defense, a court may deem the defense waived. Moore

v. Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991). In this case, both defendants

raised the defense in their initial answer to the complaint. This Circuit has held

that raising the defense in an answer is sufficient to defeat claims of waiver. See

Hill v. Dekalb Regional Youth Detention, 40 F.3d 1176, 1184 (11th Cir. 1994)

(overruled on other grounds).

      A defense of qualified immunity first requires the government official

seeking immunity to establish that he was acting within the scope of his

discretionary authority. Courson, 939 F.2d at 1488. In this case, the parties

stipulated that each officer was acting within the scope of his employment as a

deputy for the Broward County Sheriff’s Department. Therefore, the burden shifts


                                           6
to the Cowart to prove that qualified immunity did not apply.

      The Supreme Court has articulated an objective-reasonableness test for

evaluating the applicability of a qualified immunity defense. Harlow, 457 U.S. at

818, 102 S.Ct. at 2738. The Court has further instructed that we should engage in a

two-step analysis. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156

(2001). The first step calls for us to determine whether a constitutional right has

been violated. Id. at 201, 121 S. Ct. at 2156. If we find that the government

official claiming immunity has violated the plaintiff’s constitutional right, then we

proceed to determine whether this constitutional right was clearly established at the

time the official committed the violation. Id.

      First we address whether the Deputies violated Cowart’s rights under the

Fourth Amendment. The Supreme Court has held that administrative searches of

private dwellings intrude upon the interests protected by the Fourth Amendment

and as such, require a warrant. Camara v. Municipal Court of City & County of

San Francisco, 387 U.S. 523, 534, 87 S.Ct. 1727, 1733 (1967). In this case, it is

undisputed that neither the Deputies nor Agent Fagan obtained a warrant before

arriving at Cowart’s residence. However, there is a dispute as to whether Cowart’s

front yard, which was the location of the citrus tree and scene of Cowart’s arrest, is

the kind of place “so intimately tied to the home itself that it should be placed


                                           7
under the home’s ‘umbrella’ of Fourth Amendment protection.” See United States

v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1140 (1987). Such area is known as

“curtilage.” Id. The Supreme Court has directed us to evaluate questions of

curtilage according to four factors:

      the proximity of the area claimed to be curtilage to the home, whether
      the area is included within an enclosure surrounding the home, the
      nature of the uses to which the area is put, and the steps taken by the
      resident to protect the area from observation by people passing by.

Id. at 301, 107 S. Ct. at 1139. Applying these factors to Cowart’s front yard, we

have little difficulty concluding that the location of the citrus tree and the

confrontation leading to Cowart’s arrest did not occur within the curtilage of his

dwelling. Cowart’s front yard was easily in view from a public street and

sidewalk. Although he surrounded his yard with a simple wooden fence, the fence

consists of only two parallel horizontal rails supported by intermittent posts, the

whole thing being no more than three and one-half feet tall. This fence hardly

obscures a person’s field of vision when standing outside Cowart’s property. All

of these observations are clear to us upon viewing Plaintiff’s Composite Exhibit 1,

which is a collection of photographs taken by a neighbor throughout the incident.

Many of the photographs show the public street and sidewalk in the foreground

and the citrus tree in the background, indicating that the photographer was able to

clearly view both the tree and the confrontation leading to the arrest from outside
                                            8
Cowart’s property, notwithstanding the presence of the low rail fence that ran

along the sidewalk. Therefore, we find that the Cowart was not entitled to Fourth

Amendment protection while standing in his driveway or front yard, and therefore

the Deputies committed no constitutional violation.

       Even though we find that Cowart did not have his Fourth Amendment rights

violated, we will continue. Government agents are entitled to qualified immunity

if their conduct did not violate any clearly established statutory or constitutional

rights of which a reasonable officer would have known. Hudson v. Hall, 231 F.3d

1289, 1294 (11th Cir. 2000). Specifically, “the law preexisting [the government

officials’] supposedly wrongful act [must have been] already established to such a

high degree that every objectively reasonable official standing in [their] place

would be on notice that what the defendant official was doing would be clearly

unlawful given the circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282

(11th Cir. 2002). Appellee Cowart cannot provide a citation to any case law,

statute, or constitutional provision that clearly established a warrant requirement

for the execution of citrus-canker removal at the time of the incident that gave rise

to this action.1 He cites the decisions of the United States Supreme Court in


       1
          At the time of Cowart’s arrest, there were two decisions from the Florida District Court
of Appeals dealing in some respect with citrus canker removal: Florida Dep’t of Agric. & Consumer
Servs. v. Miami-Dade County, 790 So. 2d 555, 26 Fla. L. Weekly D1788 (Fla. Dist. Ct. App. 2001)
and Florida Dep’t of Agric. & Consumer Servs. v. Miami-Dade County, 790 So. 2d 559, 26 Fla. L.
                                                 9
Camara and See for the general proposition that administrative entries are not

authorized as to private property. However, neither of these cases is sufficiently

analogous to the conduct of Deputies Enrique and Poole. Camara involved a

routine inspection of the interior of a private dwelling by the San Francisco

Department of Public Health for violations of the city’s housing code. Camara,

387 U.S. at 526, 87 S.Ct. at 1729. See involved an attempted routine inspection

conducted by the City of Seattle Fire Department of a locked commercial

warehouse for violations of the city’s fire code. See v. City of Seattle, 387 U.S.

541, 541, 87 S.Ct. 1737, 1738 (1967). Neither of these cases involve outdoor

property, harmful agricultural pests, or inspections conducted pursuant to state

programs to contain or eradicate pests. As such, these decisions did not provide

adequate notice to Deputies Enrique and Poole that their arrest of Cowart was

contrary to law.

       The fact that there is no specific case on point holding the Deputies’ conduct

unlawful does not end the inquiry. In Hope v. Pelzer, the United States Supreme

Court held that although “earlier cases involving ‘fundamentally similar’ facts can

provide especially strong support for a conclusion that the law is firmly

established, they are not necessary to such a finding.” 536 U.S. 730, 741, 122 S.Ct.


Weekly D1789 (Fla. Dist. Ct. App. 2001). Neither of these two decisions lends any support to
Cowart’s position.
                                           10
2508, 2516 (2002). Instead, the “salient question” that must be answered is

whether the state of the law at the time of the alleged violation provided

government officials with “fair warning.” Id. Cowart cannot take refuge in the

Supreme Court’s decision in Hope. We hold that it is not within the meaning of

“fair warning” for the Deputies to be required to apply the precedents of Camara

and See to the Florida Citrus Canker Law amendments contained in § 581 and to

anticipate that these provisions would one day be interpreted by the courts to

require a warrant. Our previous cases have held exactly this: “public officials are

not obligated to be creative or imaginative in drawing analogies from previously

decided cases.” Adams v. St. Lucie County Sheriff’s Dep’t, 962 F. 2d 1563, 1575

(11th Cir. 1992), approved en banc 998 F.2d 923 (11th Cir.1993). The United

States Supreme Court held as much in Defillippo:

      Police are charged to enforce laws until and unless they are declared
      unconstitutional. The enactment of a law forecloses speculation by
      enforcement officers concerning its constitutionality-with the possible
      exception of a law so grossly and flagrantly unconstitutional that any
      person of reasonable prudence would be bound to see its flaws.
      Society would be ill-served if its police officers took it upon
      themselves to determine which laws are and which are not
      constitutionally entitled to enforcement.

Michigan v. Defillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 2632 (1979). Florida law

gives agents of the FDOA inspection powers “to enter into or upon any place . . . if

determined by the department to pose a threat to agricultural or public interest of
                                          11
this state.” Fla. Stat. § 581.031(15)(a). The statute does not specifically require

the agent to obtain a warrant before conducting an inspection.2 Deputies Enrique

and Poole acted with the understanding that Agent Fagan did not need a warrant to

remove the tree in Cowart’s yard. Their reliance on the statute also led them to

believe that Cowart committed a crime when he refused to allow the tree to be

taken without a warrant. However, the Deputies’ mistake will not subject them to

liability for civil damages. The Deputies enforced a statute as it was enacted and

therefore had no “fair warning” that strict adherence to the Florida statutes would

have them run afoul of the Constitution.

       The judgment of the District Court is VACATED. The case is remanded to

the district court with instructions to enter judgment for the Defendants.




       2
         Although the Florida Supreme Court eventually affirmed the state court of appeals’ decision
in Haire that a warrant was required, at least in some circumstances, this decision was not issued
until two years after Cowart was arrested, and the state court of appeals decision was not decided
until eleven months after Cowart’s arrest. Haire v. Florida Dep’t of Agric. & Consumer Servs., 870
So. 2d 774, 29 Fla. L. Weekly S67 (Fla. 2004) (affirming Florida Dep’t of Agric. & Consumer
Servs. v. Haire, 836 So. 2d 1040, 28 Fla. L. Weekly D245 (Fla. Dist. Ct. App. 2003)).
                                                 12
