                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-1925


CHASITY HUTCHINSON,

                 Plaintiff - Appellee,

           v.

DAVID L. LEMMON, Col., Superintendent of the West Virginia
State Police, In his official and individual capacities;
WEST VIRGINIA STATE POLICE; TRAVIS BERRY, Trooper, In his
official and individual capacities; R. D. STONESTREET, First
Sgt., in his official and individual capacities; C. J.
WHITE,   First  Sgt.,   in   his  official   and   individual
capacities; J. L. PHILIPS, Sgt., in his official and
individual capacities; M. L. PHILIPS, Sgt., in his official
and individual capacities; R. D. ARTHUR, Cpl., in his
official and individual capacities; T. A. BERRY, TFC., in
his official and individual capacities; M. L. OGLESBY,

                 Defendants – Appellants,

           and

T. J. MIKELL, Sr. Tpr., in his official and individual
capacities; JOHN DOES, I - IV, in their official and
individual capacities,

                 Defendants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:07-cv-00424)


Argued:   May 12, 2011                       Decided:   June 30, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote     the
opinion, in which Judge Wilkinson and Judge Niemeyer joined.


ARGUED: Michael Deering Mullins, STEPTOE & JOHNSON, LLP,
Charleston, West Virginia, for Appellants.    Georgia Lee Gates,
ACLU FOUNDATION OF WEST VIRGINIA, Glen Burnie, Maryland, for
Appellee.   ON BRIEF: Robert L. Bailey, II, STEPTOE & JOHNSON,
LLP, Charleston, West Virginia, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
KEENAN, Circuit Judge:

       In     this   interlocutory     appeal,   we    consider    the    district

court’s summary judgment determination that certain officers of

the    West    Virginia   State    Police    (the     State    Police)    were   not

entitled to qualified immunity.              The conduct at issue involved

the seizure and detention of the plaintiff, Chasity Hutchinson

(Ms.       Hutchinson),   during   a   search    of   her     residence   executed

pursuant to a valid search warrant.                   Ms. Hutchinson filed a

complaint in the district court under 42 U.S.C. § 1983, alleging

that the police officers executing the search warrant committed

various federal and state constitutional violations and common-

law torts.       Among other allegations, Ms. Hutchinson asserts that

the police officers ordered her out of the shower while she was

nude and “dragged her” from the bathroom to the living room.

There, Ms. Hutchinson alleges, she was required to lie naked on

the floor, in the presence of her stepfather, brother, fiancé,

and eight male officers, for an unnecessary and unreasonable

period of time.        Upon our review, we affirm the district court’s

denial of the defendants’ summary judgment motion. 1

       1
       Our holding extends only to the portion of the district
court’s order at issue in this appeal, namely, the defendants’
assertion of qualified immunity with respect to Ms. Hutchinson’s
unlawful seizure claim.    We do not address the other issues
adjudicated in the district court’s order, including whether the
defendants were entitled to judgment as a matter of law with
respect to Ms. Hutchinson’s other claims.


                                         3
                                               I.

                                               A.

     We review the facts in the light most favorable to Ms.

Hutchinson,    the    nonmoving         party       in    the     district       court.     See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587-88 (1986); Wilson v. Kittoe, 337 F.3d 392, 397

(4th Cir. 2003).       The following facts are taken from the record,

including   the      complaint      and    the       deposition            testimony   of   Ms.

Hutchinson and her family members who were present during the

incident.

     In July 2005, the State Police obtained a valid warrant to

search Ms. Hutchinson’s residence located in Wayne County, West

Virginia.      On    the    night       that       the    State       Police     executed   the

search warrant, three other individuals occupied the residence,

including     Josh    Hutchinson          (Josh),          who        is   Ms.   Hutchinson’s

brother,    Michael        Allen    (Allen),             who     is        Ms.   Hutchinson’s

stepfather, and Edward Glenn (Glenn), who at the time was Ms.

Hutchinson’s fiancé.          The State Police suspected that Josh and

Allen   were    operating          an    illegal          methamphetamine          laboratory

inside the residence.

     The State Police assembled a Special Response Team (SRT),

consisting of eight specially-trained state police officers, to

execute the search warrant.                According to Ms. Hutchinson, the

SRT entered her residence around 11:00 p.m.                                Upon entering the

                                               4
home, the police officers located Josh, Allen, and Glenn, and

forcibly secured those individuals “face-down” on the main floor

of the residence.           After those individuals were secured, the

officers continued their search of the residence.

        During    this   initial    search,    two   of   the   police    officers

found a locked bathroom door, which they “kicked open.”                    Inside

the bathroom, the two officers encountered Ms. Hutchinson, who

was nude and stepping out of the shower.                    The officers drew

their firearms and repeatedly screamed at her, “Get down, bitch,

now.”     One of the officers searched the rest of the bathroom,

while the other officer took custody of Ms. Hutchinson.

     Upon leaving the shower, Ms. Hutchinson used one of her

arms to cover her breasts and the other arm to cover her groin

area.     After she was forced to her knees, she reached behind her

body in an attempt to retrieve a towel from a towel rack, but

one of the officers grabbed her by her hair and pushed her down

toward    the     ground.    That    officer   then   forcibly     escorted      Ms.

Hutchinson, who was still nude, to the living room where she was

required to lie “face-down” on the floor alongside Allen and

Glenn.

     Ms.    Hutchinson      alleged    that    the   officers    forced    her    to

remain naked on the floor for a period lasting between 30 and 45

minutes.         During this time, Ms. Hutchinson complained to the

officers about being naked, and repeatedly requested but was

                                        5
denied access to clothing to shield her body.                           In response to

her requests for clothing, one or more of the officers told Ms.

Hutchinson, “Shut up, bitch.                Keep your head down and mouth

shut.”     One     officer      responded      to    Ms.    Hutchinson’s       pleas       by

stating,   “What’s       the    matter?        Don’t      you   think    we’ve      seen   a

bitch’s ass before[?]”

     According      to    Ms.    Hutchinson,         at    one    point      during    the

encounter,    an    officer      touched       Ms.     Hutchinson       on    her     naked

buttocks while stating, “Calm down, sweetie.”                     That officer then

stated, with a chuckle or a smirk, “Oh, I guess I shouldn’t have

touched you there, huh.”

     Around the time that emergency medical personnel arrived at

the residence, Ms. Hutchinson was provided a blanket to cover

herself.     She eventually was given clothing and allowed to dress

herself in front of a police officer.                      Although Ms. Hutchinson

allegedly was detained while unclothed for a period between 30

and 45 minutes, one of the officers executing the search warrant

testified during his deposition that police officers ordinarily

need only between four and five minutes to “clear” a home the

size of Ms. Hutchinson’s residence.

     The defendants disputed Ms. Hutchinson’s version of these

events contending, among other things, that her body was covered

within two to five minutes after the police officers’ entry.

Nevertheless, for purposes of this interlocutory appeal, we must

                                           6
accept Ms. Hutchinson’s version of the manner in which she was

treated by the police officers during the incident, including

her allegation that she was detained without clothing for at

least 30 minutes.       See Kittoe, 337 F.3d at 397.

                                            B.

     After the events described above, Ms. Hutchinson initiated

this action, naming as defendants the eight police officers (the

individual officers) who participated in the execution of the

search     warrant,     as     well     as       the    State        Police       and     its

superintendent       Colonel     David       L.      Lemmon     (collectively,            the

defendants).         Ms.     Hutchinson          included     six     counts       in     her

complaint:    (1)     assault   and     battery;        (2)   illegal           seizure   in

violation of the United States and West Virginia Constitutions;

(3) excessive force depriving her “of her right to freedom from

physical    abuse,    coercion,       and    intimidation”;          (4)       unreasonable

invasion of her right to privacy; (5) the “tort of outrage”; and

(6) failure to adequately train employees. 2

     Following       discovery,       the    defendants       filed        a    motion    for

summary    judgment     seeking       dismissal        of   all      Ms.       Hutchinson’s

claims.    In that motion, the defendants argued that each of Ms.

Hutchinson’s     claims      failed     as       a   matter     of    law       and     that,

     2
        The first five counts were asserted                                against all
defendants, while the sixth count was asserted                             against only
Colonel Lemmon and the State Police.



                                            7
additionally, the individual officers were entitled to qualified

immunity.

       The district court granted in part, and denied in part, the

defendants’ summary judgment motion.                           Hutchinson v. W. Va. State

Police,      731       F.    Supp.     2d    521,       551    (S.D.     W.   Va.   2010).      As

pertinent         to        this     appeal,     the       district       court      denied    the

defendants’ motion based on qualified immunity with regard to

the    unlawful        seizure        claim.        The       district    court     reached    its

decision by applying the two-step inquiry articulated in Saucier

v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by

Pearson v. Callahan, 555 U.S. 223, ___, 129 S. Ct. 808 (2009).

The district court first determined that, when the facts were

viewed       in    the       light    most     favorable         to     Ms.    Hutchinson,      the

detention         violated           her     Fourth        Amendment          rights.         Next,

characterizing the issue as Ms. Hutchinson’s “right to be free

from    an    unjustified            30-    to   45-minute         naked       detention,”     the

district court held that this right was clearly established in

July    2005       when       the     seizure       took       place.         Accordingly,     the

district court held that the defendants were not entitled to

qualified immunity on the unlawful seizure claim.                                   731 F. Supp.

2d at 542-44.




                                                    8
                                                  II.

       The    defendants           appeal    from           the    district       court’s       holding

that they were not entitled to qualified immunity.                                             Under 28

U.S.C.    §    1291,    we     have    jurisdiction                over     all       final    district

court orders.           In cases such as the present one, in which a

district court rejects a defense of qualified immunity at the

summary judgment stage based on an issue of law, the district

court’s holding is a final decision within the meaning of § 1291

and is subject to immediate appeal.                               Winfield v. Bass, 106 F.3d

525, 528 (4th Cir. 1997) (en banc).

       Under     the        doctrine        of     qualified             immunity,       “government

officials       performing           discretionary                 functions          generally      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        v.     Fitzgerald,              457    U.S.        800,    818     (1982).

Qualified immunity protects an officer from liability or, in

many    instances,          from    having        to    stand       trial       when     the    officer

makes     a    decision        that     even           if     constitutionally            deficient,

“reasonably      misapprehends          the        law       governing          the    circumstances

she confronted.”             Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

The doctrine ensures that “[o]fficials are not liable for bad

guesses in gray areas; they are liable for transgressing bright

lines.”        Iko     v.    Shreve,        535    F.3d           225,    238    (4th     Cir.     2008)

                                                   9
(quoting Maciariello           v.    Sumner,    973     F.2d   295,    298   (4th   Cir.

1992)).    The burden of proof and persuasion with respect to a

defense of qualified immunity rests on the official asserting

that defense.     Kittoe, 337 F.3d at 397.

      In evaluating a defense based on the doctrine of qualified

immunity at the summary judgment stage, we conduct the Saucier

v. Katz inquiry in which we determine (1) whether, construing

the facts in the light most favorable to the nonmoving party,

the   government    official’s          actions        violated   a    constitutional

right, and (2) whether that right was “clearly established” at

the time of the alleged misconduct.                    533 U.S. at 201; see also

Pearson, 129 S. Ct. at 815-16; Kittoe, 337 F.3d at 397.                              For

purposes of the present appeal, the defendants do not contest

the district court’s conclusion that the circumstances of Ms.

Hutchinson’s seizure and detention, when viewed in the light

most favorable to her, constituted a violation of her Fourth

Amendment rights.

      Instead,    the    defendants’          sole     argument   pertains     to    the

second prong of the Saucier test.                The defendants argue that Ms.

Hutchinson’s     right    to    be     free     from    an   unjustified,     extended

detention without clothing was not “clearly established” at the

time she was seized in the manner described above.                       We therefore

proceed directly to the second step of the Saucier analysis, and

consider   whether       the        constitutional       right    in    question     was

                                           10
“clearly established” on July 8, 2005, the date of the incident.

See Kittoe, 337 F.3d at 397.

     This issue presents a pure question of law that we review

de novo.        Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008).

For a right to be clearly established, “[t]he contours of the

right    must    be   sufficiently    clear   that   a   reasonable   official

would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).                The defendants

were entitled to qualified immunity if “a reasonable officer

could have believed [the individual officers’ actions] to be

lawful, in light of clearly established law and the information

the . . . officers possessed.”           See id. at 641.        In making this

determination,        we   consider   decisions   from    the   United   States

Supreme Court, this Court, and the highest court of the state in

which the incident took place. 3            Edwards v. City of Goldsboro,

178 F.3d 231, 251 (4th Cir. 1999).


     3
       Our analysis in this case focuses on decisions from the
United States Supreme Court and this Court. We are not aware of
any cases from the Supreme Court of Appeals of West Virginia
that bear on the issue whether the individual officers violated
Ms. Hutchinson’s “clearly-established” constitutional rights.
We further note that although the cases cited in this opinion
discuss the federal right to be free from illegal seizures under
the Fourth Amendment to the United States Constitution, the
Supreme Court of Appeals of West Virginia interprets the
analogous provision in the Constitution of West Virginia in
harmony with federal case law construing the Fourth Amendment.
See State v. Jones, 456 S.E.2d 459, 463 n.6 (W.Va. 1995).



                                       11
       We repeatedly have held that there is no requirement that

the    precise       right       allegedly       violated      already         have        been

recognized specifically by a court before such right may be held

“clearly       established”       for     qualified     immunity      purposes.            See

Buonocore       v.   Harris,      65     F.3d    347,   356-57    (4th        Cir.    1995);

Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992); see also

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (rejecting proposition

that qualified immunity is inapplicable only if the very action

in question has previously been held unlawful); Robles v. Prince

George’s       County,     302    F.3d    262,    270   (4th     Cir.    2002)        (same);

Wilson    v.    Layne,     141    F.3d    111,    114   (4th     Cir.    1998)       (same).

Thus, the absence of a court decision holding identical conduct

to be unlawful does not prevent a court from denying a qualified

immunity defense.          Edwards, 178 F.3d at 251; Kittoe, 337 F.3d at

403.     Accordingly, “officials can still be on notice that their

conduct       violates      established          law    even     in     novel        factual

circumstances.”          Hope, 536 U.S. at 741.

       The     defendants        argue    that    at    the    time     the        individual

officers seized Ms. Hutchinson and detained her in the described

manner, neither this Court nor the Supreme Court had decided

that such conduct was unlawful.                  The defendants assert that the

district court erred in relying on court decisions that were

issued       after   the    present       incident      took    place,        as    well    as

decisions from courts in other jurisdictions.

                                            12
      The defendants object particularly to the district court’s

reliance on the Supreme Court’s holding in Los Angeles County,

California v. Rettele, 550 U.S. 609 (2007) (per curiam), a case

involving similar facts that was decided almost two years after

the   present      incident    occurred.       In    Rettele,    certain      police

officers searching a house pursuant to a valid search warrant

ordered two occupants of the residence out of bed.                   Id. at 611.

The   two   individuals       were     required     to   stand   naked   at    their

bedside for about two minutes while the officers secured the

premises.        Id. at 611, 615.       In holding that the police officers

did not violate the plaintiffs’ Fourth Amendment rights, the

Supreme Court observed that the officers were not:

      free to force [the occupants] to remain motionless and
      standing for any longer than necessary.       We have
      recognized that ‘special circumstances, or possibly a
      prolonged    detention’   might   render    a   search
      unreasonable.     There is no accusation that the
      detention here was prolonged. . . .   And there is no
      allegation that the deputies prevented [the two
      occupants] from dressing longer than necessary to
      protect their safety. 4

Id. at 615 (emphasis added) (internal citations omitted).

      The defendants correctly assert that the Supreme Court’s

holding     in    Rettele     stands    for   the    proposition    that      it   is

      4
       In reversing the Ninth Circuit’s holding denying the
police officers qualified immunity, the Supreme Court held that
the seizure was reasonable because the officers’ conduct was
permissible to protect their safety, and the detention was not
prolonged in light of the circumstances. 550 U.S. at 614-15.



                                         13
unreasonable            and,    therefore,         is    unconstitutional,           for    police

officers executing a search warrant to detain a person unclothed

longer than is necessary to secure a home and minimize the risk

of harm to the officers.                    The defendants contend, however, that

before the Rettele decision, when the events at issue in this

case occurred, a reasonable police officer would not have been

on notice that it was unlawful to detain an individual naked for

a period between 30 and 45 minutes, in front of other police

officers      and       members       of    that       individual’s     family,          after   the

premises had been secured.                        We disagree with the defendants’

argument.

       Here, the unlawfulness of the individual officers’ conduct

was    obvious,          even     before         the    Supreme       Court’s       decision      in

Rettele.      Accepting Ms. Hutchinson’s version of the events, she

was kept naked for a period substantially longer than necessary

to secure the home and protect the officers’ safety.                                     There was

no    valid       justification            for    the     prolonged         detention      of    Ms.

Hutchinson while naked, especially given the police testimony

that a home of that size ordinarily could be secured within four

or    five    minutes.            In       engaging      in    this    manifestly         unlawful

behavior,         the    individual         officers         could    not    have    “reasonably

misapprehend[ed] the law,” cf. Brosseau, 543 U.S. at 198, nor

can   it     be    said        that    they      made    a    “bad    guess[]       in    [a]    gray

area[],” cf. Iko, 535 F.3d at 238.

                                                   14
       Our conclusion is supported further by two cases, each of

which      was    decided       before      the    individual       officers’        prolonged

detention        of    Ms.     Hutchinson.         These    cases       would    have   put    a

reasonable           officer    on    notice       that    the     individual        officers’

alleged      treatment          of    Ms.        Hutchinson       violated       a    clearly-

established constitutional right.

       In the first of these cases, Michigan v. Summers, 452 U.S.

692     (1981),        the     Supreme      Court       held     that     police      officers

executing        a    valid     search     warrant       have     “limited      authority     to

detain the occupants of the premises while a proper search is

conducted.” 5             Id. at 705.       The Court cautioned, however, that

this       “limited         authority”       is        applicable       to     the    “routine

detention”           of     residents       of     a     house,     and      that     “special

circumstances, or possibly a prolonged detention,” could render

such a detention unlawful.                  Id. at 705 n.21.            Thus, the Summers

decision         stands      for     the    proposition         that,     in    searching     a

residence        pursuant       to    a    valid       search     warrant,      a    “routine”

detention of individuals found in the residence is permissible,


       5
       The Court’s decision in Summers established a balancing
test to analyze the reasonableness of a detention, which weighs
the intrusiveness of the search and seizure against law
enforcement’s interest in (1) preventing flight, (2) minimizing
the risk of harm to others, and (3) facilitating the orderly
completion of a search against the character of the particular
intrusion caused by a warrant-based seizure.   452 U.S. at 702-
03.



                                                  15
while     a     non-routine        or     unreasonable            detention       may    be

impermissible.         As   discussed         above,       the   individual      officers’

treatment of Ms. Hutchinson fell far short of being reasonable,

and certainly was not “routine.”

       Secondly, our decision in Amaechi v. West, 237 F.3d 356

(4th Cir. 2001), also supports our conclusion that a reasonable

officer       should   have       known       that        the    individual      officers’

treatment of Ms. Hutchinson was unlawful.                        In that case, Amaechi

was the subject of an arrest warrant for violating a misdemeanor

noise ordinance.        Id. at 359.           When the police officers knocked

on     Amaechi’s    door    to     execute          the    arrest    warrant,     Amaechi

answered      the   door    wearing       a    “housedress”         that   was    missing

several buttons, requiring her to gather her dress with one of

her hands to keep the dress closed.                        Id. at 359 n.7.        Amaechi

was not wearing any undergarments beneath her dress.                               Id. at

359.

       The officers told Amaechi that they intended to place her

in handcuffs, at which point Amaechi informed the officers of

her clothing situation and asked to get dressed before being

taken into custody.         Id.     The officers denied Amaechi’s request

and secured Amaechi’s hands behind her back, causing her dress

to fall open below her chest.                 Id.     After Amaechi again informed

the    officers     that    she    was    not        wearing      any   underwear,      the

officers performed a search of Amaechi’s person, in front of her

                                              16
house and in plain view of her family and neighbors, during

which Amaechi’s genitals were penetrated slightly.                               Id. at 359-

60.

       Amaechi filed a complaint against the Town and the officers

under 42 U.S.C. § 1983, and, in response, one of the officers

filed    a   motion    for      summary       judgment    raising          the       affirmative

defense of qualified immunity.                  Id. at 360.           The district court

denied the officer’s motion.                    Id.     In affirming the district

court’s holding, we held that the search of Amaechi, which was

akin    to   a    “strip     search,”     was       “highly    intrusive         without       any

apparent     justification”           and,    therefore,       was     unconstitutional.

Id. at 361-63, 365.               We explained that the officer was not

entitled     to    qualified      immunity          because   he    “had        no    reason   to

believe his search of Amaechi was reasonable or fell within a

questionable area of law.”               Id. at 365.

       Importantly,        in    reaching       our    conclusion          in    Amaechi,       we

observed that “the officers certainly knew or should have known

that handcuffing Amaechi would result in publicly exposing a

significant portion of her naked lower body.”                           Id. at 363.             We

further observed that the search at issue “affront[ed] the basic

protections       of   the      Fourth    Amendment,          which    at       its     core   is

designed     to     protect       privacy       and     personal        dignity         against

unjustified       invasion       by     the    State.”        Id.     at    366        (citation

omitted).         In   our      view,    the    Amaechi       decision          provided       the

                                               17
individual        officers      with    notice        that        their     “unjustified

invasion” of Ms. Hutchinson’s privacy and personal dignity was

an “affront” to the basic protections of the Fourth Amendment.

For these reasons, we agree with the district court’s conclusion

that    the   individual       officers      were     not     entitled       to    summary

judgment on the grounds of qualified immunity with respect to

Ms. Hutchinson’s unlawful seizure claim.



                                        III.

       Finally, we address the defendants’ argument that they were

entitled to qualified immunity with respect to Ms. Hutchinson’s

common-law tort claims, an issue that the district court did not

address.      Qualified immunity is an affirmative defense, which a

defendant bears the burden to plead adequately.                           Ridpath v. Bd.

of Governors Marshall Univ., 447 F.3d 292, 305 (4th Cir. 2006).

A   defense   based     on    qualified     immunity        may    be     waived   if     not

“squarely presented” to the district court.                       Sales v. Grant, 224

F.3d 293, 296 (4th Cir. 2000).                   We may refuse to consider a

qualified     immunity       defense   on    appeal    if     the    defense       was    not

preserved below.        Ridpath, 447 F.3d at 305.

       In   the   memorandum     accompanying         their       motion    for    summary

judgment, the defendants asserted a qualified immunity defense

with   respect     to   the    unlawful      seizure    claim.            Although       that

memorandum included a footnote stating “[b]oth the individual

                                            18
and   official-capacity       defendants   are   entitled     to   state-law

qualified immunity,” the defendants did not discuss the common-

law tort claims asserted in the complaint.           We therefore decline

to address the qualified immunity defense in relation to any

claims   other   than   the    unlawful    seizure   claim,    because   the

defense was not “squarely presented” to the district court.              See

Ridpath, 447 F.3d at 305; Sales, 224 F.3d at 296.



                                    IV.

      For these reasons, we affirm the district court’s judgment.



                                                                    AFFIRMED




                                     19
