                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


ALFRED CHRISTIAN DARLINGTON,               
                 Plaintiff-Appellee,
                and
BILLIE J. DARLINGTON,
                              Plaintiff,
                 v.
DARRIN EDWARD BROMSETH,
             Defendant-Appellant,
                and
                                                  No. 03-2026

H. C. PLETCH, Officer, Chesterfield
County Police Officer; R. BROWN,
Detective, Chesterfield County
Police Department; JOHN DOES 1-10,
unknown members of the
Chesterfield County Police
Department,
                         Defendants.
                                           
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                 James R. Spencer, District Judge.
                           (CA-03-40-3)
                        Submitted: April 2, 2004
                        Decided: June 21, 2004
    Before WILKINS, Chief Judge, DUNCAN, Circuit Judge,
     and Bobby R. BALDOCK, Senior Circuit Judge of the
      United States Court of Appeals for the Tenth Circuit,
                     sitting by designation.
2                      DARLINGTON v. BROMSETH
Affirmed by unpublished per curiam opinion.


                             COUNSEL

Jeffrey L. Mincks, Sr., Stylian P. Parthemos, OFFICE OF THE
COUNTY ATTORNEY, Chesterfield, Virginia, for Appellant. Mur-
ray J. Janus, Taylor B. Stone, BREMNER, JANUS, COOK & MAR-
CUS, Richmond, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Appellant Darrin Bromseth, an officer with the Chesterfield
County Police Department ("CCPD") in Virginia, appeals the district
court’s order denying in part his motion for summary judgment in
Alfred and Billie Darlington’s action under 42 U.S.C. § 1983 (2004).
The Darlingtons’ complaint alleged a number of claims arising from
the search of their residence and the arrest of Alfred Darlington based
on the CCPD’s mistaken belief that Darlington was a convicted felon
disqualified from possessing a firearm. The district court denied Offi-
cer Bromseth’s motion for summary judgment asserting qualified
immunity as to Darlington’s claims of assault and battery and exces-
sive force, and Officer Bromseth appeals. For the following reasons,
we affirm.

                                   I.

   The facts relevant to this appeal may be summarized as follows. In
January 2001, officers of the CCPD stopped Darlington in his car
because he and his vehicle met the description of a suspect described
in a radio call. During this encounter, officers learned that Darlington
                       DARLINGTON v. BROMSETH                          3
owned a firearm. Because Darlington insisted that while he had
served time in prison his conviction had been overturned, and because
a search of the Virginia state police’s criminal database returned no
felony conviction, the officers returned the firearm to Darlington and
ended the encounter.

   Shortly thereafter, CCPD officers learned that a search of the crim-
inal record database maintained by the Virginia Supreme Court indi-
cated that Alfred Darlington had been convicted of a felony.
Believing Darlington was thus a felon in possession of a firearm, the
officers obtained an arrest warrant for Darlington and a warrant to
search his residence. The investigating officers, supported by mem-
bers of the Chesterfield County Police Emergency Response Team
("PERT team"), arrived at the Darlingtons’ residence to execute the
warrants during the early morning hours of January 19, 2001. When
Billie Darlington opened the front door, the PERT team, including
Officer Bromseth, rushed past her to secure the residence. Officer
Bromseth and his partner, tasked with securing the rear of the resi-
dence, encountered Alfred Darlington in a narrow hallway leading to
the back and ordered him to lie down on the floor in order to let the
officers pass. Darlington, who was undressed at the time, complied
immediately. The parties do not dispute that Officer Bromseth, in pro-
ceeding past Darlington, placed his foot on Darlington’s back in order
to force him completely to the floor.

   In their complaints, the Darlingtons asserted claims of malicious
prosecution, false arrest, illegal search, intentional infliction of emo-
tional distress, assault and battery, and excessive force. On the Defen-
dants’ motion for summary judgment, the district court concluded that
the Defendants were entitled to qualified immunity as to all but
Alfred Darlington’s claims of excessive force and assault and battery
under Virginia law. Officer Bromseth appeals the district court’s
interlocutory order allowing those claims to proceed against him
alone pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530 (1985),
which permits interlocutory appeals following the denial of qualified
immunity. See Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003).

                                   II.

  This court reviews the district court’s denial of qualified immunity
de novo. Bailey v. Kennedy, 349 F.3d 731, 739 (4th Cir. 2004). "‘The
4                      DARLINGTON v. BROMSETH
burden of proof and persuasion with respect to a claim of qualified
immunity is on the defendant official.’" Id. (quoting Wilson v. Kittoe,
337 F.3d 392, 397 (4th Cir. 2003)). An officer may do so by demon-
strating either that no constitutional right would have been violated
under the facts as alleged, Saucier v. Katz, 533 U.S. 194, 200 (2001),
or that it would not be clear to an objectively reasonable officer that
his conduct violated the right in question, Brown v. Gilmore, 278 F.3d
362, 367 (4th Cir. 2002).

   Having had the benefit of the parties’ briefs, and after careful con-
sideration of the record and applicable law, we find no error in the
district court’s conclusion that Officer Bromseth was not entitled to
summary judgment as to Darlington’s claims of excessive force and
assault and battery. Accordingly, we affirm the denial of qualified
immunity as to those claims for the reasons stated by the district
court. Darlington v. Pletch, No. CA-03-40-3 (E.D. Va. Aug. 6, 2003).

                                                           AFFIRMED
