                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0112p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                       X
                                Plaintiffs-Appellees, -
 CHOICE L. CAUSEY; HENRETTA DENISE BRADLEY,
                                                        -
                                                        -
                                                        -
                                                            No. 05-1142
           v.
                                                        ,
                                                         >
 CITY OF BAY CITY; JOHN MAY; THOMAS PLETZKE,            -
                                         Defendants, -
                                                        -
                                                        -
                             Defendants-Appellants. -
 JOSEPH E. DOYLE; ERIC SPORMAN; KEN SOUSER,
                                                        -
                                                       N
                        Appeal from the United States District Court
                      for the Eastern District of Michigan at Bay City.
                     No. 02-10318—David M. Lawson, District Judge.
                                    Argued: December 8, 2005
                               Decided and Filed: March 29, 2006
                 Before: MOORE, ROGERS, and MCKEAGUE, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia, Michigan,
for Appellants. Russell C. Babcock, MASTROMARCO & JAHN, Saginaw, Michigan, for
Appellees. ON BRIEF: Joseph Nimako, CUMMINGS, McCLOREY, DAVIS & ACHO, Livonia,
Michigan, for Appellants. Victor J. Mastromarco, Jr., MASTROMARCO & JAHN, Saginaw,
Michigan, for Appellees.
         ROGERS, J., delivered the opinion of the court, in which MCKEAGUE, J., joined. MOORE,
J. (pp. 7-8), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        ROGERS, Circuit Judge. Defendants Joseph E. Doyle, Eric Sporman, and Ken Souser, all
of whom are police officers, appeal the district court’s denial of their motion for summary judgment
in this § 1983 action brought by plaintiffs Choice L. Causey and Henretta Denise Bradley. The
plaintiffs allege that the officers violated their Fourth Amendment rights when the officers, without
a warrant, entered and searched the plaintiffs’ backyard and residence. The officers were responding


                                                 1
No. 05-1142           Causey, et al. v. City of Bay City, et al.                                 Page 2


to a confirmed 911 call that gunshots had been fired from the plaintiffs’ residence. The officers
argue that exigent circumstances justified the warrantless entries and searches and that the district
court therefore erred by denying their claim of qualified immunity. Because exigent circumstances
justified the entries, we reverse the order of the district court denying the officers qualified
immunity.
                                                   I.
        Except where noted, the following facts are undisputed. At approximately 7:30 p.m. on
December 31, 2000, Officers Doyle and Sporman were dispatched to 417 South Sheridan Street, the
plaintiffs’ residence, to investigate a call reporting several gunshots fired from the backyard of that
address. J.A. at 145-46. Officer Doyle knocked on the front door but received no response. J.A.
at 147. Causey testified in his deposition that he and Bradley heard the knock but did not answer
because they were in bed. J.A. at 269.
        The officers then learned from the dispatcher that the call came from 415 South Sheridan
Street. J.A. at 148. Officer Sporman went to that address to question the caller, Lisa Stevens. J.A.
at 156. Stevens told Sporman that she had heard a single gunshot followed a few minutes later by
five more gunshots, all of which came from the back area of 417 South Sheridan Street. J.A. at 159.
Stevens also told the officers that shots had been fired from that residence on July 4th and the
previous New Year’s Eve. J.A. at 149. Finally, Stevens told the officers that she had not seen
anyone enter or leave 417 South Sheridan Street after having called the police. J.A. at 149.
        The officers then entered the plaintiffs’ fenced backyard. J.A. at 156. Noticing a small
indentation in the snow on the back patio deck, Officer Sporman “reached down into the snow and
scooped up” a bullet casing. J.A. at 156. Officer Doyle saw other indentations and “scooped up
three more . . . casing[s] out of the snow.” J.A. at 156. Before or after this discovery, one of the
officers knocked on the back door of the house and received no answer. Compare J.A. at 156
(Officer Doyle knocked after), with J.A. at 497 (Officer Sporman knocked before).
        Either a dispatcher or Sergeant Nancy Feinauer telephoned the residence to contact its
occupants, but no one answered. Compare J.A. at 160 (Sgt. Feinauer called), with J.A. at 498 (a
dispatcher called). Officers Doyle and Sporman learned that earlier in the evening, the dispatcher
had received from 417 South Sheridan Street both a hangup call and a return call explaining that the
earlier call had been made by a child playing with the telephone. J.A. at 159. The officers spoke
again with Stevens, who once more stated that she heard one gunshot that was followed a couple of
minutes later by four or five more gunshots. J.A. at 160. Stevens also told the police that she did
not think that any children were at the plaintiffs’ residence. J.A. at 160.
       Based on the foregoing information, Sergeant Feinauer authorized a warrantless, forcible
entry of the plaintiffs’ residence to check for any injured persons inside. J.A. at 160. Sergeant
Feinauer told the officers that she was sending backup. J.A. at 336-37. Officers Doyle and Sporman
waited an estimated “15 to 30” minutes for their colleagues to arrive. J.A. at 337.
        After the arrival of backup, Officer Doyle knocked once again on the plaintiffs’ front door.
Officer Doyle knocked loudly on the front door six times and yelled that the police would enter the
house. J.A. at 166. Officer Souser, who had arrived to provide backup, forced the plaintiffs’ front
door open with a battering ram. J.A. at 171.
        The parties disagree as to some events surrounding the events immediately preceding the
officers’ forced entry. The plaintiffs allege that they responded to this, the second, knock at the front
door. Causey testified that, at some point, he and Bradley spoke to the officers through a window.
J.A. at 270. The officers told them that “they were there to check the well-being of the occupants.”
J.A. at 270. According to Causey, Causey and Bradley “explained to them [that they] were fine.”
No. 05-1142                 Causey, et al. v. City of Bay City, et al.                                             Page 3


J.A. at 270. Causey and Bradley also showed the officers that there were “no black eyes, no signs
of fighting, none of that physical—none of that.” J.A. at 270. Officer Doyle, however, testified in
his deposition that no one within the house responded to the officers’ knocks and commands. J.A.
338. For purposes of this appeal, we assume the plaintiffs’ version.
        The parties also dispute the nature of the officers’ conduct once they entered the plaintiffs’
residence. The district court addressed only the constitutionality of the officers’ entry, so the post-
entry facts are not relevant to the issues presented in this appeal.
        The plaintiffs brought suit under 42 U.S.C. § 1983, asserting that the officers violated their
Fourth Amendment rights. The officers moved for summary judgment on the basis of qualified
immunity, arguing that exigent circumstances justified their conduct. The district court denied the
officers qualified immunity, holding that no exigency existed. Causey v. City of Bay City, 353
F. Supp. 2d 864, 880-83 (E.D. Mich. 2005). The officers now appeal. We reverse the district
court’s order denying qualified immunity with respect to the officers’ actions up to and including
the entry.1
                                                             II.
        “Because review of a denial of qualified immunity is an issue of law, our review is de novo.”
E.g., Sample v. Bailey, 409 F.3d 689, 695 (6th Cir. 2005). “Qualified immunity is an affirmative
defense that shields government officials ‘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.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether an officer is entitled to
qualified immunity, we employ a two-step analysis: “(1) whether, considering the allegations in a
light most favorable to the party injured, a constitutional right has been violated, and (2) whether
that right was clearly established.”2 Id. (internal citation omitted).




         1
          On remand, the district court may determine whether the officers are entitled to qualified immunity for their
post-entry conduct.
         2
             As we recently explained in Estate of Carter,
         Panels of this court occasionally employ a three-step qualified immunity analysis, as opposed to the
         two-step analysis set forth here. As two recent opinions indicate, both the two-step approach and the
         three-step approach can be said to capture the holding of Saucier v. Katz, 533 U.S. 194 (2001).
         Compare Dunigan v. Noble, 390 F.3d 486, 491 n.6 (6th Cir. 2004) (two-step approach), with Sample
         v. Bailey, 409 F.3d 689, 696 n.3 (6th Cir. 2005) (three-step approach). The third step is “whether the
         plaintiff offered sufficient evidence to indicate that what the official allegedly did was objectively
         unreasonable in light of the clearly established constitutional rights.” Champion v. Outlook Nashville,
         Inc., 380 F.3d 893, 905 (6th Cir. 2004) (internal quotation omitted). In cases subsequent to Saucier
         the Supreme Court has not formally broken up the two steps prescribed by Saucier into three steps,
         see, e.g., Brosseau v. Haugen, __ U.S. __, 125 S. Ct. 596, 596 (2004); Groh v. Ramirez, 540 U.S. 551,
         563 (2004), but the three-step approach may in some cases increase the clarity of the proper analysis.
         In many factual contexts, however, including this one, the fact that a right is “clearly established”
         sufficiently implies that its violation is objectively unreasonable. Cf. Champion, 380 F.3d at 905.
408 F.3d at 311 n.2. Because, in this case, we hold that the officers did not violate the Constitution, it is unnecessary
to address the “clearly established” prong.
No. 05-1142           Causey, et al. v. City of Bay City, et al.                                 Page 4


                                                  III.
        The officers did not violate the plaintiffs’ Fourth Amendment right to be free from
unreasonable searches by entering either the backyard or the residence. “The Fourth Amendment
generally prohibits the warrantless entry of a person’s home, whether to make an arrest or to search
for specific objects.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (citing Payton v. New York,
445 U.S. 573 (1980), and Johnson v. United States, 333 U.S. 10 (1948)). A fenced backyard such
as the plaintiffs’ is within the curtilage of the residence and therefore receives Fourth Amendment
protection. United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir. 1997). “Warrantless entries
[into the residence and curtilage] are permitted, however, where ‘exigent circumstances’ exist.”
Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002). We have traditionally found the
existence of exigent circumstances “(1) when the officers were in hot pursuit of a fleeing suspect;
(2) when the suspect represented an immediate threat to the arresting officers and public; (3) when
immediate police action was necessary to prevent the destruction of vital evidence or thwart the
escape of known criminals.” Hancock v. Dodson, 958 F.2d 1367, 1375 (6th Cir. 1992). The safety
exigency permits officers to make a warrantless entry into a residence “when they reasonably
believe that a person within is in need of immediate aid.” Mincey v. Arizona, 437 U.S. 385, 392
(1978). The officers in this case reasonably suspected that immediate police action was necessary
to ascertain whether someone inside the house was in peril, and therefore the officers are entitled
to qualified immunity.
        1.      The Plaintiffs’ Backyard
         The officers’ warrantless entry into the plaintiffs’ fenced backyard was a reasonable search
because the officers had a reasonable fear that someone in the house needed their immediate aid.
Our opinion in Dickerson v. McClellan, 101 F.3d 1151 (6th Cir. 1996), in which we reversed the
district court’s denial of qualified immunity, is instructive. In that case, officers at the scene
confirmed a neighbor’s report that nine shots had been fired inside a particular residence, but they
did not know whether anyone was in the house. The officers in that case heard a loud, male voice
from the porch of the residence and saw a telephone cord stretched towards the back of the house
from where the voice was coming. Id. at 1159. We held first that an exigent circumstance, due to
safety concerns, existed when the officers had a reasonable belief that a suspect was likely to use
a weapon and second that the officers in that case were reasonable “to conclude that the firing of
nine gunshots suggests a willingness to use a weapon.” Id. at 1160. At the time that the officers in
this case entered the plaintiffs’ backyard, they had received a report of the shots-fired call, confirmed
with the neighbor who called that six shots had been fired from the “back area” of the plaintiffs’
residence, and learned from the neighbor that she had not seen anyone enter or leave the plaintiffs’
property after she called the police. The officers’ confirmed information — that someone at the
plaintiffs’ residence had fired a gun six times, that no one had entered or left the residence since the
shots were fired, and that no one had answered the first knock at the door — made it reasonable for
them to believe that someone inside the house was willing to use a weapon and thus that an exigent
circumstance existed.
        There is no substantial basis to distinguish Dickerson from this case. Although the police
in Dickerson heard a loud voice and saw a telephone cord extending to the area of the house from
which the voice was coming, we did not rely on these facts in reaching our decision. Referring to
United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996), we held first that an exigency exists when
officers can demonstrate that a suspect has a willingness to use a weapon, and second that the firing
of nine shots demonstrates such a willingness. Any evidence of the telephone cord and the loud
voice was unnecessary to establish an exigency. It is also true that there were nine shots fired in that
case and only six shots fired in this case. Yet, nowhere in the opinion do we intimate that fewer than
nine shots would not be sufficient, and there is no apparent basis for concluding that firing nine shots
suggests a willingness to use a weapon but firing six shots does not. Finally, although Stevens told
No. 05-1142               Causey, et al. v. City of Bay City, et al.                                             Page 5


the officers in this case that she had also heard shots from the plaintiffs’ residence on the previous
Fourth of July and New Year’s Eve, it was not unreasonable for the officers to discount this fact.
The shots of December 31, 2000, were fired not at midnight but rather at 7:30 in the evening, and
one shot was isolated from the other shots by a couple of minutes. Even if the officers’ beliefs “[are]
close question[s], the officers are entitled to the benefit of the doubt under the qualified immunity
standard.” Dickerson, 101 F.3d at 1160.3 The officers’ entry into the plaintiffs’ backyard therefore
did not violate the Fourth Amendment.
         2.       The Plaintiffs’ Residence
         Because the officers continued to have a reasonable fear that someone in the house needed
their immediate aid, the officers’ warrantless entry into the plaintiffs’ residence was a reasonable
search. Plaintiffs attempt, but are unable, to demonstrate that the officers no longer reasonably
believed that an exigency existed at the time that the officers entered the residence. Plaintiffs first
point to the fact (which we accept for the purpose of this interlocutory appeal) that, from a window,
they told the officers that there was no emergency and they showed the officers that there were no
signs of violence. But by the time the officers received the plaintiffs’ assurances, they had a report
that shots had been fired from the residence, that a 911 call had been made from the residence, that
someone in the residence claimed that a child had made the call, and that no children were thought
to be in the residence. Although the officers might have inferred that an exigency did not exist from
the plaintiffs’ assurances that no one was injured, it was nevertheless “equally plausible and not
unreasonable,” Dickerson, 101 F.3d at 1160, for the officers to infer that either (1) the plaintiffs were
concealing another person (perhaps incapacitated by the gunshots) inside the house or (2) the
plaintiffs were being intimidated to give assurances by an unseen attacker in the residence. See
Commonwealth v. Morrison, 710 N.E.2d 584, 587 (Mass. 1999) (“[The officers] might rightly be
concerned that the assurances [that the woman] gave them at the door were the result of intimidation
by the defendant whom they had reason to believe was lurking within.”). The plaintiffs’ assurances,
therefore, did not render it unreasonable for the officers to continue believing that someone inside
needed their aid.
        The fact that the officers briefly investigated the situation and waited for backup does not
preclude an exigency. Because we held that there was an exigent circumstance in Dickerson even
though the officers in that case confirmed a shots-fired call with a neighbor before entering the
residence, see Dickerson, 101 F.3d at 1154, the mere fact that the officers sought to confirm that
shots were fired does not demonstrate by itself that no exigency existed. Moreover, waiting a half
hour or less for backup also does not mean that there was no exigency. The officer who arrived on
the scene in Dickerson waited for backup, but this court held that an exigency existed. As Dickerson
demonstrates and the Seventh Circuit has held, officers may take “reasonable precautions to reduce
the risk of serious injury to themselves or others . . . .” United States v. Salava, 978 F.2d 320, 324
(7th Cir. 1992). The officers in this case acted reasonably in the face of a potentially emergency
situation.
        Although this court has held that the exigent safety exception did not apply when police
delayed their entry for an extremely long period of time to investigate, the delay in this case was not
prolonged. In O’Brien v. City of Grand Rapids, 23 F.3d 990, 997-98 (6th Cir. 1994), we held that
the officers’ delay of four-and-a-half hours, even after backup had arrived, to investigate and


         3
            There is no reason to address the distinct constitutional issue of whether the officers exceeded the scope of
their search in the backyard by picking up casings in the snow. “This court will not decide issues or claims not litigated
before the district court.” White v. Anchor Motor Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990). Nowhere in the
plaintiffs’ brief in opposition to the officers’ motion for summary judgment, see J.A. 220-23, or in the plaintiffs’ brief
to this court, see Appellees’ Br. at 19-21, do the plaintiffs challenge the scope of the search. The plaintiffs have
challenged only the officers’ entry into the backyard, which did not violate the Fourth Amendment.
No. 05-1142           Causey, et al. v. City of Bay City, et al.                              Page 6


monitor a situation involving a mentally unstable, armed man belied the officers’ claim of exigent
circumstances. We also held that the officers’ claim that there were exigent circumstances was
undermined by the fact that the man in that case had done nothing threatening for over four hours.
This case, in comparison, presents a delay of, at most, a half hour while the officers awaited backup.
Moreover, the officers in this case had a confirmed report of several shots fired. Therefore, although
a very long delay can demonstrate that no exigent circumstances existed, the delay in this case was
reasonable to protect the safety of the officers and others.
        The officers’ warrantless entry into the plaintiffs’ residence was justified by exigent
circumstances. Because the plaintiffs’ Fourth Amendment rights were not violated by the entries
into the plaintiffs’ backyard and residence, “there is no necessity for further inquiries concerning
qualified immunity” as to the entries. Saucier, 533 U.S. at 201.
                                                 VI.
        For the reasons set forth above, we REVERSE the order of the district court denying the
officers qualified immunity regarding their entries into the plaintiffs’ residence and backyard.
No. 05-1142               Causey, et al. v. City of Bay City, et al.                                              Page 7


                                                _________________
                                                    DISSENT
                                                _________________
        KAREN NELSON MOORE, Circuit Judge, dissenting. When Officers Joseph E. Doyle, Eric
Sporman, and Ken Souser (“officers”) entered both the backyard and home of Choice L. Causey and
Henretta Bradley (“plaintiffs”) without a warrant, it was  clearly established that there were no
exigent circumstances to justify the warrantless entry.1 Because I would thus affirm the district
court’s order denying qualified immunity, I respectfully dissent.
       The “physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed.” United States v. U.S. Dist. Court for E. Dist. of Mich., 407 U.S. 297, 313
(1972). Accordingly, “the Fourth Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”
Payton v. New York, 445 U.S. 573, 590 (1980). When the government relies on exigent
circumstances to justify a warrantless entry, it bears the burden of demonstrating that they existed.
Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
         Relying principally on a report of the sound of gunshots coming from the plaintiffs’
backyard, the officers invoke the category of exigent circumstances implicated when “a suspect
represents an immediate threat to officers and the public.” Shamaeizadeh v. Cunigan, 338 F.3d 535,
548 (6th Cir. 2003), cert. denied, 541 U.S. 1041 (2004). Our cases demonstrate that a shots-fired
call must be accompanied by other evidence of the alleged shooter’s dangerousness in order to
constitute an immediate threat. In Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1992), exigent
circumstances existed where, in addition to a shots-fired report, the police also knew that the suspect
was “suicidal and possibly homicidal” (according to the suspect’s psychologist) and had threatened
to kill any responding officer. Id. at 1369, 1375. In United States v. Bates, 84 F.3d 790 (6th Cir.
1996), exigent circumstances were absent where, without more, the officers believed that suspects
inside an apartment had a gun. Id. at 795. Explaining that “[t]he presence of a weapon creates an
exigent circumstance, provided the government is able to prove they possessed information that the
suspect was armed and likely to use a weapon or become violent,” we cited several examples of
evidence that would establish such a likelihood: “threats to an officer’s safety, a criminal record
reflecting violent tendencies, or a verified reputation of a suspect’s violent nature.” Id. Like the
facts in Hancock, these examples evidence the suspected shooter’s dangerousness and therefore go
to the immediacy of the threat.
        We applied Bates in Dickerson v. McClellan, 101 F.3d 1151 (6th Cir. 1996), finding exigent
circumstances where a neighbor called 911 to report nine gunshots coming from a house and
confirmed the report in person to responding officers, the occupant of the house was drunk, and the
officers heard the occupant “yelling in a threatening tone.” Id. at 1154. The immediate threat was
established not by the shots-fired report alone but by its combination with additional information
that the alleged shooter was dangerous: he was drunk, and the police heard him shouting in a
threatening manner. These circumstances are of a piece with the factors discussed in Hancock and
Bates. Thus, in Hancock and Dickerson (and implicitly in Bates), we indicated that officers
responding to a shots-fired report must have additional evidence of an immediate threat before
entering a home without a warrant. In contrast, the officers here lacked any evidence of an
immediate threat other than the shots-fired report itself.


         1
           I agree that we need not address the issue of whether the officers’ search (as opposed to entry) of the backyard
violated the Fourth Amendment, because the plaintiffs have not properly raised it. Of course, the plaintiffs may request
leave to amend their complaint under FED. R. CIV. P. 15(a).
No. 05-1142           Causey, et al. v. City of Bay City, et al.                                 Page 8


        Furthermore, even if a shots-fired report alone could establish exigent circumstances, the
purported exigency would be extinguished by other circumstances showing that the gunshots did
not represent an immediate threat. See O’Brien v. City of Grand Rapids, 23 F.3d 990, 997-98 (6th
Cir. 1994). Here, the officers possessed precisely this kind of information. First, the plaintiffs
answered the officers’ knocks at the front door, explaining that they were fine and showing the
officers that there were no signs of injury. Second, the plaintiffs’ neighbor told the officers that she
had heard gunshots coming from the plaintiffs’ home on both the prior New Year’s Eve and the
Fourth of July, and she did not suggest that any harm had come from these prior incidents. This
information showed that the gunshots heard by the neighbor did not present an immediate threat.
Instead, the plaintiffs were simply celebrating another holiday in their idiosyncratic way. Of course,
such conduct might well be illegal (and is probably a bad idea in any event), but that is beside the
point. The Fourth Amendment prohibits entering a home without a warrant simply to investigate
criminal acts that might have been committed inside, so the officers should have obtained a warrant
if they wanted to arrest the plaintiffs for shooting a gun into the air.
        The majority’s reliance on Commonwealth v. Morrison, 710 N.E.2d 584 (Mass. 1999), to
endorse the officers’ dismissal of this evidence is unconvincing. It is true that the court concluded
that the officers “might rightly be concerned that the assurances [a woman] gave them at the door
were the result of intimidation by the defendant whom they had reason to believe was lurking
within.” Id. at 587. Yet there were specific reasons for the officers to doubt the sincerity of the
woman’s assurances: the officers knew that the defendant had been in the woman’s apartment
earlier that night, which made it more likely that he was there again; the officers knew that the
woman had a “history of domestic problems” with the defendant (culminating in a protective order
against him), which made it more likely that he was willing to intimidate the woman and had a
reason to do so (i.e., to avoid being caught violating the protective order); and earlier that night, the
woman had lied to the officers about the defendant’s presence in her residence, which made it more
likely that she was lying again. Id. at 585. Quite unlike Morrison, the officers here were aware of
no facts to suggest that they should have disbelieved the plaintiffs’ assurances or the neighbor’s
description of the plaintiffs’ celebratory shooting habits.
        As the cases discussed above demonstrate, it was clearly established that the circumstances
known to the officers at the time they entered the plaintiffs’ backyard and home were not exigent.
Thus, the officers violated the plaintiffs’ clearly established Fourth Amendment rights by proceeding
without a warrant and are not entitled to qualified immunity. Accordingly, I respectfully dissent.
