               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0736n.06

                                          No. 08-6406

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


ROY L. DENTON,                                          )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellee.                              )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
v.                                                      )        DISTRICT OF TENNESSEE
                                                        )
STEVE RIEVLEY, in his individual capacity               )                          OPINION
                                                        )
       Defendant-Appellant,                             )
                                                        )
                                                                                 FILED
                                                                              Nov 13, 2009
                                                                        LEONARD GREEN, Clerk

BEFORE:        RYAN, COLE, and CLAY, Circuit Judges.

       COLE, Circuit Judge. In this lawsuit alleging violations of 42 U.S.C. § 1983, Appellant

Steve Rievley, a Dayton City police officer, appeals the denial of his motion for summary judgment

on claims made by Appellee Roy Denton. Rievley claims that he should have been granted summary

judgment on Denton’s “warrantless arrest” claim because he is entitled to qualified immunity. We

AFFIRM.

                                      I. BACKGROUND

A.     Factual background

       Rievley has been an officer with the Dayton City Police Department since 2005. At 1:39 a.m.

on September 9, 2006, while working an overnight shift, Rievley received and responded to a call

from dispatch regarding domestic violence.
No. 08-6406
Roy Denton v. Steve Rievley

       Brandon Denton, the alleged victim, had gone to the local jail to make a complaint about his

father (Roy Denton) and brother (Dustin Denton). Brandon claimed that after returning home from

a late shift at work, Roy and Dustin Denton began hitting him. Roy Denton, however, denies any

attack took place. At the jail, Rievley observed red marks on Brandon’s neck consistent with

strangulation and abrasions on his arms and forehead. Rievley also confirmed with Brandon’s

co-worker that Brandon did not have any injuries or abrasions when he was dropped him off at

home. Rievley drove to the Denton home accompanied by other police officers; they did not have

a warrant. The parties dispute precisely what happened next.

       According to Rievley, he walked to the door of the house and questioned Roy. Rievley’s

affidavit is silent as to whether or not he knocked on Denton’s door. Since Rievley smelled alcohol

on Roy and noticed broken eyeglasses lying on the porch, he decided to arrest Roy and Dustin

Denton for domestic assault. Rievley testified that he informed Roy that he was under arrest, and,

after a short discussion, Roy turned away from Rievley toward his house. As Roy turned away,

Rievley grabbed his right arm and then handcuffed both arms. According to Rievley, “Denton was

standing at the very least on the threshold of his front door on the front porch of his home with the

door open when he was arrested.” (Rievley Br. 15.) Rievley and another officer then entered the

Denton house in search of Dustin, whom they located after a short search.

       According to Roy, however, he was standing three feet inside his home and never crossed

the threshold of his front door during his encounter with Rievley. In fact, Roy says he was dressed

for bed and wearing nothing but silk sleeping shorts. Roy avers in his amended complaint that he

opened the front door thinking his wife was knocking yet notes in his memorandum in support of

                                                -2-
No. 08-6406
Roy Denton v. Steve Rievley

his motion for partial summary judgment that “he saw lights approaching his front door and thus

opened his door to investigate.” (Dist. Ct. Doc. No. 21 p. 1.) However, he consistently maintains

that Rievley forced his way across the threshold and arrested him inside the home.

B.     Procedural background

       Roy and Dustin Denton filed a pro se suit against Rievley, alleging violations of 42 U.S.C.

§ 1983 and various state tort claims. After Dustin was removed as a co-plaintiff, Roy filed a motion

for partial summary judgment, which the district court denied. The court also denied Denton’s

motion for reconsideration, which he does not appeal. Rievley then filed a motion for summary

judgment, which the district court granted in part and denied in part. Ruling on Rievley’s motion

for summary judgment, the court found that Rievley had had probable cause to arrest Denton, but

that he was not entitled to summary judgment on Denton’s warrantless arrest claim because, viewing

the facts in the light most favorable to Denton, Rievley had arrested Denton inside his home without

a warrant in violation of Payton v. New York, 445 U.S. 573 (1980). The court found that Rievley

was not entitled to qualified immunity as a matter of law because a reasonable officer would have

known of clearly established law prohibiting warrantless in-home arrests. It found that Denton

“maintained a claim” for unlawful entry and search of his home, but granted Rievley summary

judgment on Denton’s excessive force and assault claims.

       Rievley appealed the denial of his motion for summary judgment on the warrantless arrest

and qualified immunity claims and the determination that Denton “maintained a claim” for the

unlawful entry and search of his home. Denton moved to dismiss the appeal for lack of jurisdiction.

We took Denton’s motion with the case.

                                               -3-
No. 08-6406
Roy Denton v. Steve Rievley

                                          II. ANALYSIS

A.     Fourth Amendment violation

       Rievely argues that the district court erred in denying him summary judgment on the claim

that he arrested Denton inside his home without a warrant in violation of the Fourth Amendment.

He claims that, even construing the facts in the light most favorable to Denton, the arrest occurred

outside of Denton’s home. We lack jurisdiction to review the issue because the district court’s

decision to proceed to trial is not a “final judgment” but rather a ruling on “evidence sufficiency.”

Johnson v. Jones, 515 U.S. 304, 313 (1995) (holding that a portion of a district court’s summary

judgment order that determines “which facts a party may, or may not, be able to prove at trial” is not

appealable).

B.     Qualified immunity

       Rievley seeks to avoid a trial by arguing that even if this Court determines that he violated

Denton’s constitutional rights, he is entitled to qualified immunity. We review Rievley’s qualified

immunity challenge de novo. Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001) (citing Flagner v.

Wilkinson, 241 F.3d 475, 480 (6th Cir. 2001)).

       Before reaching the merits of Rievley’s appeal, we must determine whether we have

jurisdiction. It has been settled for some time that we may review interlocutory appeals challenging

the denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Behrens

v. Pelletier, 516 U.S. 299, 301 (1996) (same). Yet our jurisdiction extends only to “pure legal

issue[s]” and does not reach factual disputes regarding the underlying record. Shehee v. Luttrell, 199

F.3d 295, 299 (6th Cir. 1999) (quoting Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)). For

                                                 -4-
No. 08-6406
Roy Denton v. Steve Rievley

our jurisdiction to lie, “a defendant seeking qualified immunity must be willing to concede to the

facts as alleged by the plaintiff and discuss only the legal issues raised by the case.” Sheets v.

Mullins, 287 F.3d 581, 585 (6th Cir. 2002).

        While some of Rievley’s arguments do dispute the facts of his encounter with Denton, he

also raises arguments based on purely legal issues, such as whether the alleged constitutional

violation was “so clearly established at the time of the events in question that a reasonable officer

would have known what standard governed his conduct and that the conduct was wrong under that

standard.” Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002). It is over these purely legal issues,

discrete from the factual disputes, that our jurisdiction extends. See, e.g., id. at 298 (“Where . . . the

legal issues are discrete from the factual disputes, we may exercise our jurisdiction to resolve the

legal issues only.”) (citing Claybrook v. Birchwell, 274 F.3d 1098, 1103 (6th Cir. 2001)).

        Qualified immunity is available, and government officials are shielded from civil liability for

discretionary functions, “‘insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 129

S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The standard is

one of objective reasonableness, analyzing claims of immunity on a fact-specific, case-by-case basis

to determine whether a reasonable official in the defendant[’s] position could have believed that his

conduct was lawful, in light of clearly established law and the information he possessed.” Pray v.

Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995).

        This Court has recently articulated the appropriate test for analyzing whether a defendant is

entitled to qualified immunity as:

                                                  -5-
No. 08-6406
Roy Denton v. Steve Rievley

          [A] three-step inquiry[:] First, we determine whether, based upon the applicable law,
          the facts viewed in the light most favorable to the plaintiffs show that a constitutional
          violation has occurred. Second, we consider whether the violation involved a clearly
          established constitutional right of which a reasonable person would have known.
          Third, we determine whether the plaintiff has offered sufficient evidence “to indicate
          that what the official allegedly did was objectively unreasonable in light of the clearly
          established constitutional rights.”

Merriweather v. Zamora, 569 F.3d 307, 315 (6th Cir. 2009) (citing Feathers v. Aey, 319 F.3d 843,

848 (6th Cir. 2003)); cf. Cummings v. Akron, 418 F.3d 676, 685 (6th Cir. 2005).

          Although the sequence of this inquiry is no longer mandatory, we discuss the three steps in

the order outlined above. Pearson, 129 S.Ct. at 818.

                                                     a.

          First, we ask whether, under the facts alleged by the plaintiff, a constitutional violation

occurred. We find that Denton has sufficiently alleged and supported a violation of constitutional

rights.

          “‘It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home

without a warrant are presumptively unreasonable.’” Cummings, 418 F.3d at 685 (quoting Payton

v. New York, 445 U.S. 573, 586 (1980) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477

(1971))). While a warrantless felony or misdemeanor arrest1 in a public place does not violate the

Fourth Amendment, see Atwater v. Lago Vista, 532 U.S. 318 (2001), United States v. Watson, 423

U.S. 411 (1976), a “firm line” has been drawn at the entrance to the home. United States v. Thomas,

430 F.3d 274, 276 (6th Cir. 2005) (quoting Payton, 445 U.S. at 590). Atwater reaffirms the “firm


          1
        Domestic assault is a misdemeanor in Tennessee. See Tenn. Code Ann. §§ 39-13-11(c)(1),
39-13-101(b)(1).

                                                    -6-
No. 08-6406
Roy Denton v. Steve Rievley

line” that divides the public from the home in the misdemeanor context, noting that Atwater’s

warrantless arrest was justified, in part, because it was not made in a manner “unusually harmful to

[her] privacy . . . interests,” such as inside her home without a warrant. Atwater, 532 U.S. at 354

(quoting Whren v. United States, 517 U.S. 806, 818 (1996)). “Under the Fourth Amendment, absent

exigent circumstances, police officers may not make a warrantless and nonconsensual entry into a

private dwelling to make a routine felony arrest.” Ingram v. Columbus, 185 F.3d 579, 587 (6th Cir.

1999) (citing Payton, 445 U.S. at 576, 590).

       A definition of “the home” is therefore important in protecting the “firm line” that separates

it from the public. In United States v. Santana, the Supreme Court held that the doorway of a house

is a public place. 427 U.S. 38, 42 (1976). The Court emphasized the interplay between an

individual’s expectation of privacy and the demarcation of his home: “Integral to the Court’s

analysis was a finding that Santana ‘was not merely visible to the public but was as exposed to public

view, speech, hearing, and touch as if she had been standing completely outside her house,’ and thus

had no legitimate expectation of privacy at the time the police initiated the arrest.” Cummings, 418

F.3d at 686 (quoting Santana, 427 U.S. at 42).

       Thus, if an individual does not expose himself to public view, he maintains an expectation

of privacy and is therefore in his home and not a public place. Cummings, 418 F.3d at 686; see also

id. at 685 (noting that plaintiff’s attempt to talk to officers through a window, his partial opening of

his front door, and his refusal to grant the officers’ request to enter his home manifested his intent

to maintain his expectation of privacy in his home); United States v. Saari, 272 F.3d 804 (6th Cir.

2001) (finding that defendant did not voluntarily expose himself to the public when he opened his

                                                 -7-
No. 08-6406
Roy Denton v. Steve Rievley

door following the forceful knocks of police, who had positioned themselves in front of the sole exit

to his apartment with their guns drawn). But see United States v. Gori, 230 F.3d 44 (2d Cir. 2000),

cited with approval and distinguished in Saari (noting that defendant forfeited his expectation of

privacy in his home when he voluntarily opened his door for a delivery woman).

       As alleged by Denton, the facts show that he never left his home nor exposed himself to

public view. Therefore, since there was no consent or exigency justifying Rievley’s entrance into

his home, Denton’s arrest violated Payton. Although Denton both avers that he opened the front

door thinking his wife was knocking and notes that “he saw lights approaching his front door and

thus opened his door to investigate” (Dist. Ct. Doc. No. 21 p. 1), he has presented evidence that he

was ready for bed at the time Rievley arrived at his home and intended to avoid exposing himself

to the public. Denton’s opening of his front door for someone he thought to be his wife is consistent

with an intention to avoid exposing himself to the outside since, unlike the delivery woman in Gori,

a wife is an insider rather than an outsider. Denton therefore has shown an attempt to maintain a

privacy interest in his home. Further, Denton stated in his affidavit: “I was standing 3 feet inside

my home and never crossed the threshold stepping onto the porch at any time.” (Dist. Ct. Doc. No.

36 ¶ 12 (emphasis in original)).

                                                  b.

       “When analyzing whether a constitutional right was clearly established at the time of the

events in question we ‘must look first to decisions of the Supreme Court, then to decisions of this

Court and other courts within our circuit, and finally to decisions of other circuits.’” Merriweather,

569 F.3d at 315 (quoting Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994)). The important

                                                -8-
No. 08-6406
Roy Denton v. Steve Rievley

question is whether Rievley had notice of the unlawfulness of his actions. Hope v. Pelzer, 536 U.S.

730, 739 (2002). Payton and Atwater, taken together, clearly establish that warrantless in-home

arrests for misdemeanor offenses absent consent or exigency violate the Fourth Amendment. 445

U.S. 573; 532 U.S. 318. These two Supreme Court cases were decided well before Denton’s arrest.

        Rievley, however, argues that since Denton has offered no proof that any of the other officers

on the scene at the time of Denton’s arrest disagreed with Rievley’s actions, he did not violate a

clearly established constitutional right of which a reasonable person would have known. But such

a requirement, unsupported by case law, does not make sense: the number of people engaged in an

activity does not dictate the activity’s reasonableness nor the actors’ awareness of the legality of their

activity.

        Rievley next argues that the “contours” of the Payton right are not clearly established since

case law in this Circuit does not address the impact of domestic violence on exigent circumstances.

Exigency exists in a limited set of circumstances: “(1) hot pursuit of a fleeing felon, (2) imminent

destruction of evidence, (3) the need to prevent a suspect’s escape, and (4) a risk of danger to the

police or others.” Thacker v. Columbus, 328 F.3d 244, 253 (6th Cir. 2003) (citing United States v.

Johnson, 22 F.3d 674, 680 (6th Cir. 1994)). Here, the facts do not support the existence of any of

the situations giving rise to exigency, so any argument concerning exigency’s scope is irrelevant.

See, e.g., Cummings, 418 F.3d at 686 n.4 (“Because qualified immunity must be asserted by the

defendant official, it was incumbent upon Defendants to raise a plausible legal basis for the asserted

legality of their seizure of [Plaintiff’s] home and person.”).

                                                    c.

                                                  -9-
No. 08-6406
Roy Denton v. Steve Rievley

        Finally, Rievley argues that he is entitled to qualified immunity because he was following

a Tennessee statute denoting a preference for arrest in cases where there is probable cause of

domestic abuse. Tenn. Code Ann. § 36-3-619. Other Circuits have held that while reliance on a

statute is a factor to consider in determining whether or not an officer’s actions were objectively

reasonable, “[r]eliance on a statute does not make an official’s conduct per se reasonable.” MIMICS,

Inc. v. Angel Fire, 394 F.3d 836, 846 (10th Cir. 2005) (citing Roska v. Peterson, 328 F.3d 1230,

1252, 1253 (10th Cir. 2003)). But cf. Lederman v. United States, 291 F.3d 36, 47 (D.C. Cir. 2002)

(“‘The enactment of a law forecloses speculation by enforcement officers concerning its

constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that

any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if

its police officers took it upon themselves to determine which laws are and which are not

constitutionally entitled to enforcement.’” (quoting Michigan v. DeFillippo, 443 U.S. 31, 38

(1979))).

        The Tenth Circuit has held that “[d]etermining whether reliance on a statute makes an

official’s conduct objectively reasonable, despite violating the plaintiff’s clearly established rights,

depends on ‘(1) the degree of specificity with which the statute authorized the conduct in question;

(2) whether the officer in fact complied with the statute; (3) whether the statute has fallen into

desuetude; and (4) whether the officer could have reasonably concluded that the statute was

constitutional.’” MIMICS, 394 F.3d at 846 (quoting Roska, 328 F.3d at 1253 (footnotes omitted));

cf. Merriweather, 569 F.3d at 317 (“[P]olicies that are themselves constitutional can be

unconstitutional if improperly applied.”)

                                                 - 10 -
No. 08-6406
Roy Denton v. Steve Rievley

       Here, the relevant statute states:

       If a law enforcement officer has probable cause to believe that a person has
       committed a crime involving domestic abuse, whether the crime is a misdemeanor
       or felony, or was committed within or without the presence of the officer, the
       preferred response of the officer is arrest.

Tenn. Code Ann. § 36-3-619(a) (WEST 2009).

       Even if compliance with a state statute generally renders an officer’s conduct more

reasonable, this particular statute lacks specificity and is not necessarily applicable to the case at

hand. First, the statute does not require arrest in situations involving domestic violence; it has

merely been interpreted to permit warrantless arrests in such situations. See, e.g., W. Mark Ward,

Tn. Criminal Trial Practice § 2:15 (2008-2009) (“[T]he requirement that a misdemeanor be

committed in the presence of an officer in order to arrest without a warrant has been eliminated in

domestic abuse cases.”); Tenn. Op. Att’y Gen. No. 00-048 (March 16, 2000) (“[A]n officer also has

authority to obtain an arrest warrant for that individual, if he so chooses, and upon a finding that

‘there is probable cause to believe that the offense was committed and that the defendant committed

it.’”) (citing Tenn. R. Crim. P. 4; Tenn. Code Ann. § 40-6-205). Second, the statute does not

specifically address warrantless in-home arrests; it is silent on whether its preference for arrest

applies inside a home when an officer lacks consent or exigent circumstances.

       We, therefore, do not think an interpretation of Tenn. Code Ann. § 36-3-619 to permit

warrantless in-home arrests is objectively reasonable in light of long-standing Supreme Court

precedent holding that such arrests violate the Fourth Amendment. See Payton, 445 U.S. at 576;

MIMICS, 394 F.3d at 847 (“To the extent [defendant] is interpreting the Village ordinance and New


                                                - 11 -
No. 08-6406
Roy Denton v. Steve Rievley

Mexico statutes to permit nonconsensual warrantless entries at any time and under any

circumstances, his understanding is not objectively reasonable. It has long been the rule that such

warrantless nonconsensual entries into commercial property not open to the public violate the Fourth

Amendment.”) (citation omitted).

       C.       Claim for warrantless entry to arrest Dustin Denton

       The parties dispute whether Denton “maintains a claim for an unlawful entry and search . .

. of his home.” This appears to be a dispute regarding whether Denton included a valid claim in his

complaint for an unlawful search of his home. Since Denton’s complaint satisfied the requirements

of Federal Rule of Civil Procedure 8—it included statements regarding the district court’s

jurisdiction, his entitlement to relief, and a demand for such relief— his claim was valid. See Fed.

R. Civ. P. 8.

                                      III. CONCLUSION

       For the foregoing reasons, we DENY Denton’s motion to dismiss for lack of jurisdiction,

AFFIRM the denial of Rievley’s motion for summary judgment regarding qualified immunity, and

AFFIRM the district court’s decision that Denton maintains a claim for the unlawful entry and

search of his home.




                                               - 12 -
