215 F.3d 758 (7th Cir. 2000)
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.
No. 99-2507
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 14, 2000
Decided June 1, 2000

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. [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Flaum, Easterbrook, and Ripple,  Circuit Judges.
Flaum, Circuit Judge.


1
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.  BACKGROUND1

2
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.


3
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.


4
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.


5
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.


6
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.


7
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

8
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


9
A. Consideration of Matters Outside of Complaint


10
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.


11
Federal Rule of Civil Procedure 12(b)  states:


12
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.


13
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.


14
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


15
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).


16
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).


17
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.


18
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

19
a. Validity of Search Warrant


20
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.


21
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.


22
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

23
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.


24
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


25
[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.


26
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).


27
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."


28
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

29
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.


30
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).


31
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.


32
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


33
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

34
We now consider whether the Defendant  Officers' conduct violated clearly  established law.


35
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.


36
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.


37
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

38
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.


39
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.


40
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).


41
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


42
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

43
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.


44
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)).


45
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.


46
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

47
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.



Notes:


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.



48
Easterbrook, Circuit Judge, concurring in part  and concurring in the judgment.


49
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.


50
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." Maj op. 765 n. 3. Rule 12(b)(6) is a  mismatch for immunity and almost always a bad  ground of dismissal.


51
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.


52
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.


53
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).

