                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0913n.06

                                           No. 12-4205                                    FILED
                                                                                     Oct 24, 2013
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

LARRY LEWIS,                                         )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE NORTHERN
RONALD E. WECK,                                      )       DISTRICT OF OHIO
                                                     )
       Defendant-Appellant.                          )



BEFORE: DAUGHTREY, COOK, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Defendant Ronald Weck appeals the district court’s

denial of his motion to dismiss based on qualified immunity in this 42 U.S.C. § 1983 action alleging

that Weck violated Plaintiff Larry Lewis’s Fourth and Fourteenth Amendment rights when, without

a warrant, he entered a house owned by Lewis to inspect the house for health and safety hazards.

We AFFIRM.

       Weck contends that the inspection was not a Fourth Amendment search because the house

was unoccupied, unused, and in poor condition at the time. On the other hand, he argues, if the

inspection was a Fourth Amendment search, it was constitutional because Lewis consented and

exigent circumstances justified the entry. Finally, Weck insists, if the search did, in fact, violate

Lewis’s Fourth Amendment rights, he is nevertheless entitled to qualified immunity because a

reasonable officer in Weck’s position would have believed that his conduct was lawful.
No. 12-4205
Lewis v. Weck

        Lewis disputes our jurisdiction. Although most denials of summary judgment are nonfinal

orders that cannot be appealed pursuant to 28 U.S.C. § 1291, an order denying qualified immunity

is immediately appealable. Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008) (citing Mitchell v.

Forsyth, 472 U.S. 511, 525–27 (1985)). Still, our jurisdiction over such appeals is limited: we may

review the district court’s order only “to the extent that it turns on an issue of law.” Mitchell, 472

U.S. at 530; Harrison, 539 F.3d at 517 (“[T]o the extent that the denial of qualified immunity is

based on a factual dispute, such a denial falls outside of the narrow jurisdiction of this Court.”). A

defendant bringing an interlocutory appeal of the denial of qualified immunity must accept the facts

in the light most favorable to the plaintiff and assert issues of law. Although, as Lewis argues,

portions of Weck’s brief appear to dispute, rather than accept arguendo, Lewis’s version of the facts,

that does not deprive us of jurisdiction over the legal questions presented. Estate of Carter v. City

of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (where defendant “raises the purely legal question .

. . whether the facts alleged . . . support a claim of violation of clearly established law . . . this court

can ignore the defendant’s attempts to dispute the facts and nonetheless resolve the legal issue,

obviating the need to dismiss the entire appeal for lack of jurisdiction.”) (internal quotation marks

and citations omitted). Accordingly, we deny Lewis’s motion to dismiss.

        As to the merits of Weck’s appeal, we find no error in the district court’s denial of qualified

immunity. The court correctly noted that the Fourth Amendment’s warrant requirement applies to

private residences and commercial premises, and that the warrant requirement “applies with similar

force even where municipal fire, health, or housing inspectors are conducting administrative

searches.” R. 61, Order at 4 (citing Camara v. Municipal Court, 387 U.S. 523, 534 (1967)). The

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No. 12-4205
Lewis v. Weck

court rejected Weck’s arguments that as a matter of law Lewis lacked a reasonable expectation of

privacy in the structure, Lewis consented to the search, and the condition of the property justified

an exception to the warrant requirement. We agree that taken in the light most favorable to Lewis,

the evidence undermines these arguments.

       Addressing Weck’s qualified-immunity defense, the court correctly found that the right to

be free from an administrative search conducted without a warrant, and without consent, is clearly

established. Although Weck had argued that his reliance on an attorney’s advice that he had the

right to enter the house constituted an “extraordinary circumstance” that entitles him to qualified

immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) (“[I]f the official pleading the defense

claims extraordinary circumstances and can prove that he neither knew nor should have known of

the relevant legal standard, the [qualified-immunity] defense should be sustained.”), the district court

did not err in finding that fact issues remain with respect to the attorney’s “prominence and

competence” under the relevant legal test. See York v. Purkey, 14 F. App’x 628, 633 (6th Cir. 2001)

(citing V-1 Oil Co. v. Wyoming, 902 F.2d 1482, 1489 (10th Cir. 1990)). Relying on the same issue

of fact, the court also denied Lewis’s motion for summary judgment.

       Thus, we AFFIRM the district court’s denial of qualified immunity for the reasons stated

in its order filed September 20, 2012.




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