In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2507

Willie Jacobs and Linda Siller,

Plaintiffs-Appellants,

v.

City of Chicago , a municipal corporation;
the estate of Sergeant Michael Garner;
Officers Quintero, Buckner, McLean, Keith,
and Garrido; and Metropolitan Enforcement
Group Officers Huff, Martin, Sowinski,
and McIntyre,

Defendants-Appellees.



Appeal from the United States District Court for
the
Northern District of Illinois, Eastern Division.
No. 98 C 0954--Charles R. Norgle, Sr., Senior
Judge.


Argued January 14, 2000--Decided June 1, 2000



  Before Flaum, Easterbrook, and Ripple,
Circuit Judges.

  Flaum, Circuit Judge. Willie Jacobs and
Linda Siller brought claims under 42
U.S.C. sec. 1983 against the City of
Chicago and several individual Chicago
police officers (the "Defendant
Officers"), alleging violations of their
Fourth Amendment right to be free from
unreasonable searches and seizures and
excessive use of force. The district
court dismissed the complaint under
Federal Rule of Civil Procedure 12(b)(6),
finding that the defendants enjoyed qual
ified immunity for all of the claims
brought against them. For the reasons
stated herein, we reverse and remand.

I.   BACKGROUND/1

  Plaintiffs Willie Jacobs and Linda
Siller live in Apartment #2 at 15138
Lincoln Avenue in Harvey, Illinois. There
are three apartments in the building at
this address. The wall next to the door
of each apartment is marked by the word
"Apt." followed by a number. Each
apartment has its own separate outside
entrance and its own doorbell. There are
two gas meters located on the outside of
the building providing service to the
first and second floor apartments. The
three apartments are each billed
separately for electricity and telephone
service. Apartment #2 is located on the
second floor and has an outside entrance
at the side of the building.

  On February 18, 1997, defendant Officer
Quintero of the Chicago Police Department
obtained a search warrant for "Troy," a
30-year-old black male, and a single
family residence at 15138 Lincoln Avenue
in Harvey. The warrant was issued based
on information, provided by a
confidential informant, that a large
amount of cocaine base was being sold out
of the building.

  Later that afternoon, the Defendant
Officers went to the apartment building
at 15138 Lincoln Avenue. They executed
the warrant on the first floor apartment,
which is entered through a door at the
front of the building. The owner of the
building Marie Golden lived in this
apartment. She informed the officers that
there were two other apartments in the
building, that no one named Troy lived in
the building, and that she did not know
anyone named Troy. Golden also told the
officers that someone named Jacobs lived
in the upstairs apartment and that Jacobs
was ill, having recently returned from
the hospital. The Defendant Officers
searched Golden’s apartment.

  The Defendant Officers then went back
outside the building and around to the
side entrance of Apartment # 2. They
broke down the door without knocking or
announcing that they were police officers
executing a search warrant. An officer
approached plaintiff Jacobs, a sixty-
year-old man, and pointed a gun at his
head. The officers then asked Jacobs if
he was Troy, the thirty-year-old man who
was the subject of the search warrant.
Jacobs responded that he was not Troy and
that no one named Troy lived in the
apartment. Jacobs provided the officer
with identification and told the officer
that he needed to sit down because he
felt faint. The officer kept the gun at
Jacobs’ head for over ten minutes while
the other Defendant Officers began
searching Jacobs’ apartment. During the
search, several items of furniture and
many of the plaintiffs’ personal
belongings were damaged. One of the
Defendant Officers claimed to have found
a small amount of cocaine on a dresser in
a bedroom used by Jacobs’ grandchildren.
The Defendant Officers then continued to
search Jacobs’ apartment for over three
hours, detaining Jacobs in his home
throughout the search. During this time,
the Defendant Officers called in a canine
unit to assist with the search, but the
dog did not indicate the presence of any
drugs in the apartment or on Jacobs’
person.

  Jacobs alleges that he suffered severe
emotional injury as a result of the
Defendant Officers’ search of his
apartment, their detention of him during
the search, and their use of force by
holding a gun to his head for several
minutes. Shortly after this incident,
Jacobs suffered a heart attack. Linda
Siller was also an occupant of the
apartment. She returned home after the
search had been completed to find her
property damaged. No one was arrested or
prosecuted as a result of the search of
the apartment building.

  Jacobs and Siller filed suit under 42
U.S.C. sec. 1983 against the City of
Chicago and the Defendant Officers,
claiming that their Fourth Amendment
rights were violated by the search of
their apartment and the seizure of Jacobs
as well as by the excessive use of force
against Jacobs. The district court
dismissed plaintiffs’ complaint under
Rule 12(b)(6), finding that the
defendants enjoyed qualified immunity for
all of the claims brought by the
plaintiffs. Jacobs and Siller now
appeal./2

II.   DISCUSSION

  The plaintiffs appeal the district
court’s dismissal of their complaint
under Rule 12(b)(6) on the ground that
the defendants are entitled to qualified
immunity for all of the claims brought
against them. We review the district
court’s dismissal de novo. See Payton v.
Rush-Presbyterian St. Luke’s Medical
Center, 184 F.3d 623, 625 (7th Cir.
1999). We accept all of the plaintiffs’
allegations as true and draw all
reasonable inferences in their favor.
General Elec. Capital Corp. v. Lease
Resolution Corp., 128 F.3d 1074, 1080
(7th Cir. 1997)./3

A. Consideration of Matters Outside of Complaint

  The plaintiffs first contend that the
district court erred when it considered
several photographs of the apartment
building, submitted by the defendants and
the plaintiffs, and a copy of a police
report, submitted by the defendants, in
ruling on the defendants’ motion to
dismiss.

  Federal Rule of Civil Procedure 12(b)
states:

If, on a motion asserting the defense
numbered (6) to dismiss for failure of
the pleading to state a claim upon which
relief can be granted, matters outside
the pleading are presented to and not
excluded by the court, the motion shall
be treated as one for summary judgement
and disposed of as provided in Rule 56,
and all parties shall be given reasonable
opportunity to present all material made
pertinent to such a motion by Rule 56.

By the plain language of this rule, when
the defendants submitted photographs of
the apartment building and a copy of a
police report and the plaintiffs
submitted their own photographs in
response, the district court was
obligated to either not consider the
extraneous submissions in ruling on the
motion or to convert the motion to one
for summary judgment and provide the
parties with an opportunity to submit
supplementary materials. See Carter v.
Stanton, 405 U.S. 669, 671 (1972). It is
evident that the district court relied on
the photographs as well as the report in
ruling on the motion to dismiss and that
it did not convert the motion to one for
summary judgment. We hold that the
district court’s reliance on matters
outside the complaint in ruling on the
motion to dismiss was in error.

  The error committed by the district
court may constitute grounds for
reversal. See id.; Travel All Over the
World, Inc. v. Saudi Arabia, 73 F.3d
1423, 1430 (7th Cir. 1996). However,
rather than remand for the district court
to reconsider its opinion without looking
at matters outside of the compliant, our
usual practice is to determine whether
the error was harmless by conducting our
own de novo analysis of the complaint
under the Rule 12(b)(6) standard without
considering the extraneous materials
relied upon by the district court. See
General Elec. Capital, 128 F.3d at 1084
("[W]e may consider the error harmless
and affirm if Rule 12(b)(6) dismissal
would have been appropriate without
examination of the extrinsic
documentation."); Travel All Over, 73
F.3d at 1430. We will affirm the district
court’s dismissal only if we determine by
conducting our own analysis of the
complaint alone that the plaintiffs fail
to state a claim upon which relief can be
granted.

B. Qualified Immunity

  State officials who occupy positions
with discretionary or policymaking
authority and are acting in their
official capacity may have qualified
immunity for claims alleging that the
state officials violated the
constitutional rights of a plaintiff.
Siegert v. Gilley, 500 U.S. 226, 231
(1991); Harlow v. Fitzgerald, 457 U.S.
800, 815-16 (1982). These officials "are
shielded 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, 457 U.S. at 818; see Wilson v.
Layne, 119 S.Ct. 1692, 1696 (1999);
Anderson v. Creighton, 483 U.S. 635, 638
(1987).

  To evaluate a claim of qualified
immunity, we engage in a two-step
analysis. First, we determine whether the
plaintiffs’ claim states a violation of
their constitutional rights. Then, we
determine whether those rights were
clearly established at the time the
violation occurred. See Wilson, 119 S.Ct.
at 1697; Khuans v. School Dist. 100, 123
F.3d 1010, 1013 (7th Cir. 1997). If the
rights were clearly established, the
official may be liable for monetary
damages and the suit proceeds to the next
stage. If the rights were not clearly
established, then the official is immune
from suit and the claim is dismissed. See
Richardson v. McKnight, 521 U.S. 399, 403
(1997).

  It is the plaintiffs’ burden to
demonstrate that a constitutional right
is clearly established. Kernats v.
O’Sullivan, 35 F.3d 1171, 1176 (7th Cir.
1994). A clearly established right is one
where "[t]he contours of the right [are]
sufficiently clear that a reasonable
official would understand that what he is
doing violates that right." Anderson, 483
U.S. at 640; see Wilson, 119 S.Ct. at
1700. To determine whether a right is
clearly established, we look first to
controlling Supreme Court precedent and
our own circuit decisions on the issue.
In the absence of controlling precedent,
we broaden our survey to include all
relevant caselaw in order to determine
"whether there was such a clear trend in
the caselaw that we can say with fair
assurance that the recognition of the
right by a controlling precedent was
merely a question of time." Cleveland-
Perdue v. Brutsche, 881 F.2d 427, 431
(7th Cir. 1989). In some rare cases,
where the constitutional violation is
patently obvious, the plaintiffs may not
be required to present the court with any
analogous cases, as widespread compliance
with a clearly apparent law may have
prevented the issue from previously being
litigated. See Kernats, 35 F.3d at 1176.

  In this case, plaintiffs allege that the
defendant Chicago police officers
violated their clearly established Fourth
Amendment rights. Police officers
conducting a search are state officers
with discretionary authority who are
acting in their official capacity and may
be protected by qualified immunity in
suits challenging the constitutionality
of their actions. See Anderson, 483 U.S.
at 641.

C. Search

1. Constitutionality of Search

a. Validity of Search Warrant

  Plaintiffs first argue that the search
of their apartment violated their Fourth
Amendment rights because it was not
conducted pursuant to a valid search
warrant. They allege that the warrant was
invalid because it did not particularly
describe the place to be searched.
  A warrant is valid under the Fourth
Amendment only where it is based "upon
probable cause, supported by Oath or
affirmation, and particularly describ[es]
the place to be searched, and the persons
or things to be seized." U.S. Const.
amend. IV. Where a warrant fails to
describe with particularity the place to
be searched, it is void. See Horton v.
California, 496 U.S. 128, 139-40 (1990);
United States v. Higgins, 428 F.2d 232,
234 (7th Cir. 1970) ("[P]robable cause
and the particular description of the
place to be searched are essential
requirements of equal importance.");
United States v. Hinton, 219 F.2d 324,
326 (7th Cir. 1955). We have consistently
held that probable cause to search one
apartment in a multi-unit building does
not support a warrant authorizing a
search of the entire building. Rather,
"when a building is divided into more
than one residential unit, a distinct
probable cause determination must be made
for each unit." United States v. Butler,
71 F.3d 243, 248 (7th Cir. 1995); see
also Maryland v. Garrison, 480 U.S. 79,
85 (1987) (stating that if police
officers knew or should have known that a
building contains multiple "separate
dwelling units," the officers are
obligated to exclude from the warrant any
units for which they do not have probable
cause to conduct a search); Hinton, 219
F.2d at 325-26 ("For purposes of
satisfying the Fourth Amendment,
searching two or more apartments in the
same building is no different than
searching two or more completely separate
houses. Probable cause must be shown for
searching each house or, in this case,
each apartment."). A warrant authorizing
the search of an entire multi-unit
building is fatally defective "when the
warrant authorizes the search of an
entire structure and the officers do not
know which unit contains the evidence of
illegal conduct." United States v.
Johnson, 26 F.3d 669, 694 (7th Cir.
1994); see also Higgins, 428 F.2d at 234-
35. The only exceptions to this general
rule are when "(1) the officer knows
there are multiple units and believes
there is probable cause to search each
unit, or (2) the targets of the
investigation have access to the entire
structure." Johnson, 26 F.3d at 694; see
also Hinton, 219 F.2d at 326.
  The warrant in this case authorized the
search of a single-family residence
located at 15138 Lincoln Avenue in
Harvey, Illinois. In fact, the building
located at this address is a multi-unit
building consisting of three separate
residential apartments. Thus, on its
face, the warrant does not describe the
place to be searched with particularity.
In addition, from the allegations pled in
the complaint, there is no indication
that a neutral magistrate found either
that there was probable cause to suspect
illegal activity was being conducted in
the plaintiffs’ apartment or that Troy,
the target of the search warrant, had
access to the entire apartment building.
However, "[t]he validity of the warrant
must be assessed on the basis of the
information that the officers disclosed,
or had a duty of discover and to
disclose, to the issuing Magistrate."
Garrison, 480 U.S. at 85. The plaintiffs
do not allege that the officers seeking
the warrant concealed information from
the issuing magistrate that they were
under a duty to disclose. Because we do
not judge the validity of a warrant
"[w]ith the benefit of hindsight", id.,
we conclude that although the warrant
turned out to be overbroad because it did
not describe with particularity the place
to be searched and encompassed a separate
dwelling unit, the plaintiffs’ apartment,
for which there was no probable cause to
authorize a search, it was valid at the
time it was issued based on the
information the officers presented to the
magistrate./4

  b. Execution of Search Warrant

  Plaintiffs next argue that even   if the
warrant was valid when it issued,   the
Defendant Officers violated their   Fourth
Amendment rights in the manner in   which
they executed that warrant.

  In Maryland v. Garrison, the Supreme
Court held that the search of Garrison’s
apartment was valid even though it was
based on a warrant that was later
discovered to be overbroad where the
officers believed in good faith that the
entire third floor of the building that
was described in their search warrant was
a single apartment and they discovered
contraband in Garrison’s apartment before
becoming aware that there were in fact
two apartments on the third floor. 480
U.S. at 80-81. However, the Court also
stated that

[i]f the officers had known, or should
have known, that the third floor
contained two apartments before they
entered the living quarters on the third
floor, and thus had been aware of the
error in the warrant, they would have
been obligated to limit their search to
[the search target’s] apartment.
Moreover, as the officers recognized,
they were required to discontinue the
search of respondent’s apartment as soon
as they discovered that there were two
separate units on the third floor and
therefore were put on notice of the risk
that they might be in a unit erroneously
included within the terms of the warrant.

Id. at 86-87. Similarly, in United States
v. Higgins, we held that a search was
unconstitutional where the officers
executed an overbroad warrant, which
failed to indicate which of three
apartments located in the basement of an
apartment building was to be searched, by
searching all of the apartments until
they found the one they were looking for.
428 F.2d at 234-35; see also Hinton, 219
F.2d at 326 (holding that the search of
an entire building consisting of four
apartments was unconstitutional where the
officers were unable to determine which,
if any, of the apartments belonged to the
targets of the search).

  In this case, the Defendant Officers
were executing a search warrant issued
for the entire building located at 15138
Lincoln Avenue. According to the
allegations pled in the complaint, this
building consists of three apartments,
each accessed through a separate external
entrance marked by the word "Apt." and
followed by a number. A separate doorbell
is located next to the entrance to each
apartment, and there are two gas meters
located on the outside of the house
providing separate service to the first
and second floor apartments. The
plaintiffs’ apartment was on the second
floor and could not be reached from the
first floor apartment by any means other
than by exiting the first apartment,
going around to the side of the building,
and entering through a separate door. The
Defendant Officers in this case executed
the warrant first on the ground floor
apartment. They were told by the landlord
who was occupying that apartment that the
building contained multiple units and
that the second floor apartment was
occupied by a man named Jacobs. After
learning this information, the Defendant
Officers exited the first floor
apartment, went around the outside of the
building, and entered the plaintiffs’
apartment by breaking down a locked door
marked with the words "Apt. 2."

  Taking these allegations as true, it
appears that reasonable officers should
have discovered before entering
plaintiffs’ apartment that the building
at 15138 Lincoln Avenue was a multi-unit
building consisting of separate
apartments and that the warrant they were
executing was overbroad. At the moment
the Defendant Officers discovered the
defect in the description of the place to
be searched, they were obligated to cease
that search if they could not determine
which apartment was properly the subject
of the warrant. The Defendant Officers
concede in their brief before this Court
that they did not know which apartment
was occupied by Troy at the time they
conducted the search. Furthermore, there
is nothing in the allegations of the com
plaint that would have led a reasonable
officer to conclude that plaintiffs’
apartment was the appropriate target of
the search. Because the search of
plaintiffs’ apartment occurred after it
appears from the allegations in the
complaint that a reasonable officer would
have discovered a fatal defect in the
warrant, we cannot conclude that the
search was a valid execution of that
warrant. See United States v. Ramirez,
112 F.3d 849, 852 (7th Cir. 1997)
("[O]nce [a] mistake is discovered, the
government cannot use the authority of
the warrant . . . to conduct a search .
. . that they know is unsupported by
probable cause.").


  c. Warrantless Search

  The Defendant Officers finally argue
that even if the search was not validly
conducted pursuant to a warrant, it was
properly executed as a warrantless
search. The Defendant Officers assert
that they were faced with exigent
circumstances because during drug raids
such as this one there is a strong
probability that evidence will be
destroyed. They further argue that they
had probable cause to believe that Troy,
the target of the search, was occupying
one of the apartments in the building,
and that because they had no reason to
believe that it was not plaintiffs’
apartment, they were justified in
searching that apartment.

  Where law enforcement officers have
probable cause to believe that illegal
activity is being conducted in a particu
lar place and exigent circumstances
exist, a warrantless search may be valid.
See United States v. Marshall, 157 F.3d
477, 481-82 (7th Cir. 1998). Exigent
circumstances may include the probability
that evidence will be destroyed before a
valid search warrant can be obtained from
a neutral magistrate. Id. at 482.
However, the bare fact that officers are
executing a warrant to search for illegal
narcotics is not sufficient to constitute
exigent circumstances. Specific facts
indicating that evidence is likely to be
destroyed must be present in order for
exigent circumstances to exist. See
Richards v. Wisconsin, 520 U.S. 385, 394
(1997).

  The allegations as pled in the
plaintiffs’ complaint give no indication
that exigent circumstances existed in
this case. There are as yet no facts on
the record that would support a
reasonable officer’s conclusion that
evidence of a crime was in imminent
danger of being destroyed inside the
plaintiffs’ apartment at the time the
Defendant Officers’ conducted the search.


  More importantly, probable cause, as
used in this context, means that the
officers must have cause to believe that
illegal activity is taking place in a
particular location. See Butler, 71 F.3d
at 248; Hinton, 219 F.2d at 325-26. The
fact that officers have probable cause to
believe that illegal activity may be
taking place in a general area does not
authorize a search of every separate
dwelling within that area until the
illegal activity is discovered. See
Johnson, 26 F.3d at 692; Higgins, 428
F.2d at 234-35. Furthermore, the burden
is on the Defendant Officers to show that
they had probable cause to search
plaintiffs’ apartment. It is not on
plaintiffs to show that their apartment
should not have been searched. See
Coolidge v. New Hampshire, 403 U.S. 443,
455 (1971). In this case, the allegations
in the complaint reveal that the police
had probable cause to believe that a man
named Troy was conducting illegal
activity somewhere in the building
located at 15138 Lincoln Avenue. However,
there is no information presented in the
complaint that would support a finding of
probable cause that Troy occupied
Apartment #2 or that illegal activity was
occurring in that particular apartment as
opposed to one of the two other
apartments also located at that address.
In fact, the Defendant Officers concede
that at the time of the search, they were
unable to determine which apartment was
the source of the illegal activity they
were sent to investigate. Therefore, we
cannot conclude that a warrantless search
of plaintiffs’ apartment was justified.
See Ybarra v. Illinois, 444 U.S. 85, 91
(1979) ("[A] person’s mere propinquity to
others independently suspected of
criminal activity does not, without more,
give rise to probable cause to search
that person.")./5
  Taking the allegations presented in the
complaint as true, we cannot conclude
that the search conducted in this case
was made pursuant to a valid execution of
a warrant or was a proper warrantless
search. Therefore, on the current record,
it appears that the search of plaintiffs’
apartment violated their Fourth Amendment
rights.

2. Clearly Established Law

  We now consider whether the Defendant
Officers’ conduct violated clearly
established law.

  At the time the search in this case was
conducted, it was clearly established
that a warrant is fatally overbroad when
it authorizes the search of an entire
multi-unit building where the officers do
not have probable cause to believe either
that there is illegal activity occurring
in each separate unit of the building or
that the entire building is under the
"dominion and control" of the person
targeted for the search. See Garrison,
480 U.S. at 86-87; Butler, 71 F.3d at
249; Johnson, 26 F.3d at 694; United
States v. Page, 580 F.2d 916, 920 (7th
Cir. 1978); United States v. Gusan, 549
F.2d 15, 18-19 (7th Cir. 1977); Higgins,
428 F.2d at 234-35; Hinton, 219 F.2d at
326. It was also clearly established that
where an officer mistakenly believes that
a building is a single unit but later
discovers that the building in fact
contains multiple units, the officer is
obligated to cease the search if he is
unable to determine that the unit he is
searching is properly the subject of the
search. See Garrison, 480 U.S. at 86-87;
Johnson, 26 F.3d at 692; Higgins, 428
F.2d at 234-35; Hinton, 219 F.2d at 326.
Finally, it was clearly established that
an officer cannot conduct a warrantless
search of a residence unless he has
probable cause to believe that there is
illegal activity occurring in that
particular residence and exigent
circumstances are present. See Welsh v.
Wisconsin, 466 U.S. 740, 748-50 (1984);
Higgins, 428 F.2d at 234-35; Hinton, 219
F.2d at 326.

  As discussed above, based on the
allegations in the complaint, it appears
that the Defendant Officers should have
known before entering the plaintiffs’
apartment that 15138 Lincoln Avenue was
not a single-family residence and that
plaintiffs’ apartment was a dwelling unit
separate from the other apartments in the
building. In addition, no facts are
alleged that would permit the inference
that the Defendant Officers suspected
plaintiffs’ apartment was controlled by
Troy, the target of the search. It
appears from the complaint that the
Defendant Officers should have been aware
that the warrant was overbroad, and there
is no indication that the officers were
certain that plaintiffs’ apartment was
the proper subject of the search. In
fact, according to the complaint, the
Defendant Officers chose to execute the
search warrant first on the ground floor
apartment and proceeded to search
plaintiffs’ apartment only after they did
not find what they were looking for in
the first place they chose to search.
Furthermore, there does not appear to be
any independent probable cause for the
Defendant Officers to believe that the
plaintiffs’ apartment in particular was
the location of illegal activity.

  From the facts pled in the complaint, we
cannot conclude that the Defendant
Officers in this case did not conduct a
fishing expedition strikingly similar to
the one we declared unconstitutional in
Higgins. 428 F.2d at 234-35 (concluding
that the search was unconstitutional
where "[i]t [was] evident that the
officers could not determine from the
warrant which apartment was to be
searched and that they made that
determination by searching all apartments
until they discovered the one they were
looking for"); see also Johnson, 26 F.3d
at 692 (stating that a search is
unconstitutional where "the officer was
in effect playing a ’shell game’
searching for the one apartment out of
four where the illegal activity was
occurring"). At the time the Defendant
Officers conducted the search in this
case, they were on notice from Supreme
Court precedent, as well as from this
Court’s caselaw, that the type of random
search of the apartments in a multi-unit
building alleged here violates the Fourth
Amendment. Therefore, we hold that, under
the facts as alleged in the complaint,
the Defendant Officers do not have
qualified immunity from the plaintiffs’
claims.

D. Seizure

  Plaintiff Jacobs next argues that the
Defendant Officers violated his clearly
established Fourth Amendment rights when
they detained him for over three hours
during the search of his apartment.

  A person who is not free to leave his
home while officers are conducting a
search is "seized" for Fourth Amendment
purposes. Michigan v. Summers, 452 U.S.
692, 696 (1981). An official seizure is
ordinarily unreasonable unless it is
supported by probable cause, even where
no formal arrest is made. See id.;
Dunaway v. New York, 442 U.S. 200, 212-13
(1979). However, "a warrant to search for
contraband founded on probable cause
implicitly carries with it the limited
authority to detain the occupants of the
premises while a proper search is
conducted." Summers, 452 U.S. at 705; see
also United States v. Pace, 898 F.2d
1218, 1239 (7th Cir. 1990). This is
because there is a substantial law
enforcement interest in preventing the
flight of a suspect in the event that
incriminating evidence is found, in
protecting the safety of the officers,
and in the orderly completion of the
search which is facilitated by the
presence of the suspects. Summers, 452
U.S. at 703. Furthermore, "the detention
represents only an incremental intrusion
on personal liberty when the search of a
home has been authorized by a valid
warrant." Id.

  However, where a search is illegal and
not supported by probable cause, the
justification for using the search as the
foundation for the seizure disappears
because it was the connection of the
individual with a location suspected of
harboring criminal activity that provided
the reasonable basis for the seizure. See
Florida v. Royer, 460 U.S. 491, 499
(1983) (construing Summers as holding
that "the [search] warrant made the
occupant sufficiently suspect to justify
his temporary seizure"). When there is no
longer probable cause to believe criminal
activity is taking place at the location
where an individual is found, the mere
presence of the individual in that place
is no justification for seizing that
individual. In that circumstance, the
foundation for seizing the individual
must come from an independent probable
cause determination that the individual
is involved in illegal activity. See id.
("In the name of investigating a person
who is no more than suspected of criminal
activity, the police may not . . . seek
to verify their suspicions by means that
approach the conditions of arrest.");
Dunaway, 442 U.S. at 216 (holding that
the police may not seize an individual
without probable cause in order to
"embark[ ] upon [an] expedition for
evidence in the hope that something might
turn up") (quotation omitted).

  As discussed above, on the facts alleged
in the complaint, the search of the
plaintiffs’ home appears to be illegal
and without probable cause. In addition,
taking the allegations pled as true, the
Defendant Officers in this case did not
appear to have probable cause to believe
that Jacobs was engaged in any illegal
activity. The Defendant Officers were
looking for a thirty-year-old man named
Troy. Even if the officers had been
justified in briefly detaining the-sixty-
year-old Jacobs to ascertain if he were
Troy, the manner in which the seizure is
alleged to have been conducted, by
breaking down the door to Jacobs’ home
and holding a gun to his head, and the
three-hour duration of the seizure, do
not appear on the facts presently alleged
to be reasonable efforts to obtain this
information. See Royer, 460 U.S. at 500
("The scope of the detention must be
carefully tailored to its underlying
justification."). Therefore, considering
only the allegations in the complaint, we
cannot conclude that the seizure and
detention of Jacobs during the three hour
search was reasonable and not in
violation of his Fourth Amendment
rights./6

  At the time the search of Jacobs’
apartment was conducted, it was clearly
established that a citizen may not be
detained by law enforcement officials
without probable cause. It was further
clearly established that an illegal
search does not confer probable cause to
detain the subject of the search while it
is being carried out. See Summers, 452
U.S. at 696. Therefore, we hold that,
under the allegations presented in the
complaint, the Defendant Officers do not
enjoy qualified immunity to Jacobs’
claims that their unlawful seizure of his
person violated his Fourth Amendment
rights.

E. Use of Force

  Plaintiff Jacobs also asserts that the
Defendant Officers violated his Fourth
Amendment rights when one of the officers
placed a gun to Jacobs’ head for over ten
minutes during the initial period of the
search of his apartment.

  While "the right to make an arrest or
investigatory stop necessarily carries
with it the right to use some degree of
physical coercion or threat thereof to
effect it," Graham v. Connor, 490 U.S.
386, 396 (1989), the Fourth Amendment
prohibits the use of excessive force
during the execution of a seizure, id. at
395 (holding that the Fourth Amendment’s
objective reasonableness test is the
appropriate standard for evaluating
excessive force claims). In order to
decide whether the amount of force used
during a seizure is "excessive," we
examine the totality of the circumstances
to determine whether the intrusion on the
citizen’s Fourth Amendment interests was
justified by the countervailing
government interests at stake. See
Lanigan v. Village of E. Hazel Crest, 110
F.3d 467, 475 (7th Cir. 1997). The Fourth
Amendment test is an objective one, where
the officer’s subjective good or bad
intentions do not enter into the
analysis. See Graham, 490 U.S. at 397.
Instead, we consider factors such as "the
severity of the crime at issue, whether
the suspect poses an immediate threat to
the safety of the officers or others, and
whether he is actively resisting arrest
or attempting to evade arrest by flight."
Id. at 396. We also consider whether the
citizen was under arrest or suspected of
committing a crime, was armed, or was
interfering or attempting to interfere
with the officer’s execution of his or
her duties. See McDonald v. Haskins, 966
F.2d 292, 292-93 (7th Cir. 1992). In the end,
the excessive force inquiry "looks to
whether the force used to seize the
suspect was excessive in relation to the
danger he posed--to the community or to
the arresting officers--if left
unattended." Id. at 294 (citing Wilkins
v. May, 872 F.2d 190, 193 (7th Cir.
1989)).

  According to the allegations pled in the
complaint, plaintiff Jacobs was sitting
at home alone in his apartment behind a
locked door when one of the Defendant
Officers broke down his door, entered his
apartment without warning and pointed a
gun at Jacobs’ head. The officer kept the
gun pointed at Jacobs for over ten
minutes, even after ascertaining that
Jacobs was not the person he was looking
for, and during which time Jacobs did
nothing more threatening than provide the
officer with his identification and ask
the officer for permission to sit down.
As discussed above, at the time the
Defendant Officers entered Jacobs’
apartment, they do not appear to have had
probable cause to suspect Jacobs had
committed any crime or to believe that
any criminal activity was being conducted
in Jacobs’ apartment. Taking these facts
as true, it appears that the Defendant
Officers’ use of force against Jacobs
while executing an allegedly illegal
search of his home and an allegedly
unlawful seizure of his person was out of
proportion to any danger that Jacobs
could possibly have posed to the officers
or any other member of the community. We,
therefore, cannot conclude that,
considering only the allegations pled in
the complaint, the Defendant Officers’
use of force did not violate Jacobs’
Fourth Amendment rights.
  At the time the Defendant Officers used
force against Jacobs in this case, it was
clearly established that "police officers
do not have the right to shove, push, or
otherwise assault innocent citizens
without any provocation whatsoever."
Clash v. Beatty, 77 F.3d 1045, 1048 (7th
Cir. 1996). Furthermore, it was clear
that "[a]n officer’s use of deadly force
to apprehend a suspect is unreasonable,
absent probable cause that the suspect is
dangerous or has committed a violent
crime." McDonald, 966 F.2d at 294-95; see
Estate of Starks v. Enyart, 5 F.3d 230,
234 (7th Cir. 1993) (finding that the
amount of force that is constitutionally
permitted to execute a seizure decreases
with the threat of danger posed by the
individual being seized). It was also
established that holding the gun to a
person’s head and threatening to pull the
trigger is a use of deadly force. See
McDonald, 966 F.2d at 295./7 Under
existing Seventh Circuit and Supreme
Court precedent at the time the use of
force occurred in this case, it appears
to be clearly unreasonable for the
Defendant Officers to have pointed a
loaded weapon at Jacobs for an extended
period of time when they allegedly had no
reason to suspect that he was a dangerous
criminal, or indeed that he had committed
any crime at all, Jacobs was unarmed, and
when Jacobs had done nothing either to
attempt to evade the officers or to
interfere with the execution of their
duties. We therefore conclude that,
taking the allegations in the complaint
as true, the Defendant Officers are not
shielded by qualified immunity from
Jacobs’ claim of excessive use of force.

III.   CONCLUSION

  For the reasons stated herein, we Reverse
the district court’s dismissal of
plaintiffs’ claims and Remand this case
for further proceedings consistent with
this opinion.

/1 Because this case was dismissed under Rule
12(b)(6), we take all of the plaintiffs’
allegations as true for purposes of this opinion.

/2 The district court dismissed the City of Chicago
as a defendant in this matter because the
plaintiffs failed to allege any policy or
practice of constitutional violations that would
render the city liable for the Defendant
Officers’ actions in this case. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978). In addition, on stipulation of the
parties, the district court dismissed defendant
officers Huff, Martin, Sowinski, and McIntyre.
The plaintiffs do not contest the dismissal of
any of these parties on appeal. Therefore, we
address only the district court’s dismissal of
the complaint against the remaining Defendant
Officers on qualified immunity grounds.

/3 We note that the dismissal of a sec. 1983 suit
under Rule 12(b)(6) is a delicate matter that
district courts should approach carefully. On one
hand, courts have been admonished that qualified
immunity is the ability to be free from suit, not
merely a defense from liability, and that,
therefore, the question of immunity should be
decided at the earliest possible stage. See
Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163,
166 (1993); Mitchell v. Forsythe, 472 U.S. 511,
526 (1985); Harlow v. Fitzgerald, 457 U.S. 800,
817-18 (1982). Our Court has held that resolution
of this issue may be appropriate as early as
dismissal under Rule 12(b)(6). See Landstrom v.
Illinois Dep’t of Children and Family Servs., 892
F.2d 670, 674 (7th Cir. 1990). On the other hand,
the notice pleading requirements of Rule 8 do not
require that a plaintiff anticipate the assertion
of qualified immunity by the defendant and plead
allegations that will defeat that immunity. See
Crawford-El v. Britton, 523 U.S. 574, 595 (1998);
Gomez v. Toledo, 446 U.S. 635, 639-40 (1980).

  The Supreme Court has recognized the tension in
this area but has declined to address this issue.
See Leatherman, 507 U.S. at 166. But see Behrens
v. Pelletier, 516 U.S. 299, 306-309 (1996)
(holding that "an order rejecting the defense of
qualified immunity at either the dismissal stage
or the summary judgment stage is a ’final’
judgment subject to immediate appeal") (emphasis
added); Mitchell, 472 U.S. at 527 (holding that
the "denial of a defendant’s motion for dismissal
or summary judgment on the ground of qualified
immunity" is an appealable decision) (emphasis
added). Similarly, we need not address this issue
at this time. We merely note that it appears that
in some cases, a complaint may be dismissed under
Rule 12(b)(6) on qualified immunity grounds where
the plaintiff asserts the violation of a broad
constitutional right that had not been
articulated at the time the violation is alleged
to have occurred. In that case, while the
plaintiff may have stated a claim, it is not one
"upon which relief can be granted" and a court
may properly address this purely legal question
under Rule 12(b)(6). See Neitzke v. Williams, 490
U.S. 319, 326-27 (1989). However, in many cases,
the existence of qualified immunity will depend
on the particular facts of a given case. In those
cases, the plaintiff is not required initially to
plead factual allegations that anticipate and
overcome a defense of qualified immunity. (Of
course, if the plaintiff does go beyond the
requirements of Rule 8 and plead extensive facts
in anticipation of an assertion of immunity, he
may run the risk of pleading himself out of
court.) The district court then has a variety of
means at its disposal to move the case
incrementally forward in order to address the
qualified immunity issue at the earliest possible
stage, so that a defendant who is immune from
suit is not put through the time, effort and
expense of defending himself against a claim upon
which, ultimately, no relief can be granted. See
Crawford-El, 523 U.S. at 597-98 (noting that the
district court may order a reply to a defendant’s
answer under Rule 7(a) or a more definite
statement of the plaintiff’s claim under Rule
12(e)); Elliott v. Thomas, 937 F.2d 338, 345 (7th
Cir. 1991) (stating that summary judgment may be
granted in the district court’s discretion
without permitting discovery).

/4 From the allegations in the complaint, it appears
that simple investigation procedures, such as
contacting the gas, electric, or telephone
company, would have revealed that the residence
at 15138 Lincoln Avenue is a multi-unit apartment
building. We note that officers seeking a search
warrant relying on information provided by a
confidential informant are under an obligation to
take reasonable steps to confirm that information
before using it in an affidavit in support of the
warrant. See Illinois v. Gates, 462 U.S. 213,
241-42 (1983). If further discovery reveals that
the officers should have known that the building
contained multiple units at the time they applied
for the search warrant, the warrant would be
invalid. See Garrison, 480 U.S. at 85.

/5 Plaintiffs also argue that the search was
unconstitutional because the Defendant Officers
entered their apartment by breaking down the door
without knocking or announcing that they were
police officers executing a search warrant. It is
well-established that "the Fourth Amendment
incorporates the common law requirement that
police officers entering a dwelling must knock on
the door and announce their identity and purpose
before attempting forcible entry." Richards, 520
U.S. at 387; Wilson v. Arkansas, 514 U.S. 927
(1995). However, the knock and announce
requirement may give way where there is a threat
of physical violence or a reason to believe that
evidence will be destroyed. Richards, 520 U.S. at
394 ("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."). As noted
above, neither of these circumstances appears to
be present in this case from the facts pled in
the complaint.

/6 The allegations in the complaint state that one
of the Defendant Officers claims to have
discovered contraband in one of the bedrooms of
Jacobs’ apartment. The discovery of this
contraband does not provide probable cause for
the seizure of Jacobs because, under the facts
pled in the complaint, that seizure occurred
immediately upon the Defendant Officers’ entry
into the apartment and before any contraband that
may have been linked to Jacobs was found. See
Royer, 460 U.S. at 507-08 (holding that a search
conducted pursuant to consent given during an
illegal seizure was unconstitutional); Dunaway,
442 U.S. at 216 (holding that an interrogation
conducted during an illegal detention violated
the suspect’s Fourth Amendment rights and that
information gained from the interrogation could
not be used to justify the initial seizure).

/7 While it is not indicated in the complaint that
the officer pointing the gun at Jacobs’ head
threatened to pull the trigger, it is a
reasonable inference from the facts alleged that
the act of pointing a loaded weapon at a person
in the circumstances presented here carries with
it the implicit threat that the officer will use
that weapon if the person at whom it is directed
does not comply with the officer’s wishes.




 Easterbrook, Circuit Judge, concurring in part
and concurring in the judgment. I join the
judgment and all of the opinion other than the
portions suggesting that a complaint may be
dismissed under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim on which relief may be
granted when, after receiving an answer and
considering evidentiary submissions, the judge
believes that the defendants are immune from
damages liability. Immunity is an affirmative
defense. Gomez v. Toledo, 446 U.S. 635, 640
(1980). What is more, qualified immunity defeats
only a particular remedy, money damages.
Sometimes money is the sole relief a plaintiff
could seek, and if damages are unavailable the
case should be dismissed. But a complaint does
not limit the available relief, see Fed. R. Civ.
P. 54(c), so, even when qualified immunity from
damages is certain, the complaint may pass
muster. And judgment following the answer should
come under either Rule 12(c) or Rule 56;
dismissal under Rule 12(b)(6) is improper.

  In Gomez the Supreme Court distinguished
immunity from failure to state a claim on which
relief may be granted. "By the plain terms of
sec.1983, two--and only two--allegations are
required in order to state a cause of action
under that statute. First, the plaintiff must
allege that some person has deprived him of a
federal right. Second, he must allege that the
person who has deprived him of that right acted
under color of state or territorial law." 446
U.S. at 640. The complaint in Gomez contained
both allegations, and the Court therefore
reversed an order dismissing it under Rule
12(b)(6). Crawford-El v. Britton, 523 U.S. 574
(1998), has since insisted that courts not alter
the elements or burdens under sec.1983 in the
name of immunity. Cf. Leatherman v. Tarrant
County, 507 U.S. 163 (1993) (no "heightened
pleading standard" in sec.1983 cases). Any
contrary decisions in this circuit cannot be
reconciled with the instructions from the Supreme
Court, and we should face up to this rather than
say, as my colleagues do, that the use of Rule
12(b)(6) in immunity situations is a "delicate
matter that district courts should approach
carefully." Slip op. 5 n.3. Rule 12(b)(6) is a
mismatch for immunity and almost always a bad
ground of dismissal.

  It is not possible to exclude use of Rule
12(b)(6), which covers "failure to state a claim
upon which relief can be granted". One can
imagine circumstances under which the complaint
sets out a "claim" within the ambit of Gomez yet
narrates facts showing that it is impossible to
award relief. For example, a litigant who demands
damages from a Member of Congress on account of
a speech made on the floor has pleaded himself
out of court; it is not necessary for the
defendant to assert immunity under Art. I sec.6
cl. 1, because the complaint itself demonstrates
that, however strong the claim in the abstract
(perhaps the speech slandered a non-public
figure), the court is forbidden to redress the
injury. See Charles Alan Wright & Arthur R.
Miller, 5 Federal Practice and Procedure sec.sec.
1226, 1276 (2d ed. 1990) (discussing built-in
defenses). Sometimes a complaint designed to
skirt ’round immunity may reveal the claim’s
substantive weakness and justify dismissal on the
merits under Rule 12(b)(6). See Buckley v.
Fitzsimmons, 20 F.3d 789 (7th Cir. 1994). As a
rule, however, public officials’ immunity
defenses are qualified rather than absolute, the
officials may elect to defend on the merits
rather than to claim immunity, and when
defendants do assert immunity it is essential to
consider facts in addition to those in the
complaint. Considerations of immunity or other
affirmative defenses rarely come to the fore
until an answer has been filed. Defendants in
this case filed an answer, to which they attached
evidentiary materials. Rule 12(b) says that in
such circumstances the judge must convert the
proceedings to a request for summary judgment.

  None of this is to deny what many cases have
stressed: claims of immunity often justify
dismissing a complaint in advance of discovery.
But Crawford-El describes how this process should
work. 523 U.S. at 598-99. First is an answer
followed by a response under Rule 7 or a motion
for a more definite statement under Rule 12(e).
Second is the use of Rule 26(c) to curtail or
foreclose discovery. As we observed in Elliott v.
Thomas, 937 F.2d 338, 344-46 (7th Cir. 1991),
which anticipated both Leatherman and Crawford-
El, summary judgment is the right way to handle
claims of immunity. See also Triad Associates,
Inc. v. Robinson, 10 F.3d 492, 497 (7th Cir.
1993). District judges sometimes try to resolve
immunity defenses under Rule 12 because they
believe that they must allow discovery before
ruling on motions for summary judgment, but this
is incorrect. Defendants may seek summary
judgment "at any time". Fed. R. Civ. P. 56(b). If
immunity doctrines require decision without
discovery (or with limited discovery), then
district judges must use their authority under
Rule 26(b)(2) and (c) to curtail or eliminate
discovery and decide on the basis of affidavits
and other evidence that can be produced without
compulsory process. Immunity does not justify
decision on the basis of allegations instead of
evidence (which is what judgment under Rule 12
entails) or a pretense that a complaint that
meets the standards of Gomez doesn’t state a
claim on which relief may be granted.

  Nothing turns on the choice among Rule
12(b)(6), Rule 12(c), and Rule 56 in this case,
because defendants are not entitled to immunity
under any standard, but in other cases the choice
between decision without evidence (Rule 12) and
decision with evidence (Rule 56) could be
decisive. Many district judges treat Rule
12(b)(6) as a grant of authority to terminate
cases that lack promising futures. We resist this
tendency in other corners of the law, e.g.,
Walker v. National Recovery, Inc., 200 F.3d 500
(7th Cir. 1999); Bennett v. Schmidt, 153 F.3d
516, 518 (7th Cir. 1998); Cook v. Winfrey, 141
F.3d 322 (7th Cir. 1998); American Nurses’
Association v. Illinois, 783 F.2d 716, 727 (7th
Cir. 1986), and should do so in this corner too.
See also, e.g., Hishon v. King & Spalding, 467
U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S.
41, 45-46 (1957).
