                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0205n.06
                            Filed: March 18, 2009

                                           No. 07-4072

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


CHRISTA WALTERS                 and    RICK      )
WALTERS,                                         )
                                                 )
       Plaintiffs-Appellees,                     )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
CHAD STAFFORD              and     GERALD        )    SOUTHERN DISTRICT OF OHIO
MARTIN,                                          )
                                                 )
       Defendants-Appellants.                    )


Before: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendants City of Hamilton Police Lieutenant

Gerald Martin and Officer Chad Stafford appeal the order of the district court, which denied in part

their motion for summary judgment. Pursuant to 42 U.S.C. § 1983, plaintiffs Rick and Christa

Walters claimed, inter alia, that: both defendants unreasonably seized Rick Walters in violation of

the Fourth Amendment and retaliated against Rick Walters for exercising his First Amendment

rights; both defendants unreasonably searched both plaintiffs in violation of the Fourth Amendment;

and both defendants used excessive force against Christa Walters. All claims were asserted against

Lieutenant Martin and Officer Stafford in their individual capacities. The district court denied

defendants’ motion for summary judgment, in which defendants argued that they were entitled to

qualified immunity as to each of these claims. On appeal, defendants argue that the district court
erred because: (1) both defendants are entitled to qualified immunity as to Rick Walters’s unlawful

seizure claim; (2) both defendants are entitled to qualified immunity as to Rick Walters’s retaliation

claim; (3) both defendants are entitled to qualified immunity as to plaintiffs’ unreasonable search

claim; and (4) Lieutenant Martin is entitled to qualified immunity as to Christa Walters’s excessive

force claim. We agree and reverse the district court’s denial of qualified immunity to both

defendants as to Rick Walters’s unreasonable seizure and retaliation claims, reverse the district

court’s denial of qualified immunity to both defendants as to plaintiffs’ unreasonable search claim,

and reverse the district court’s denial of qualified immunity to Lieutenant Martin as to Christa

Walters’s excessive force claim.

                                                 I.

       The relevant facts, many of which are in dispute, are as follows. Following a Halloween

party on October 31, 2003, the Walters were overnight guests at the residence of their friend, James

Evans, and Evans’s roommate, Charles Cox. After the Walters retired to one bedroom of the house,

Evans was awakened by the sound of a disturbance coming from his backyard and a nearby alley.

Due to recent break-ins at his residence and others in the neighborhood, Evans retrieved a firearm

from Cox, exited, and fired a shot into the air to disperse the disturbance, which arose from a group

of 20 to 30 people in the alley near Evans’s backyard.

       Unknown to Evans, Hamilton police officers Stafford and Thomas Hurst—who had both

previously been dispatched to a house behind Evans’s residence—heard one gunshot. Officers Hurst

and Stafford ran towards the gunfire and radioed their dispatcher that shots had been fired. After

approaching the rear of Evans’s residence, the officers saw Evans standing near the porch with a gun

in his hand. Officer Stafford contends that after he pointed his own firearm at Evans and told him


                                                  2
to put his gun down, Evans pointed his gun at Officer Stafford. Officer Hurst did not corroborate

this, and Evans contends he was only pointing the gun towards the melee and someone whom he

thought was approaching with a lead pipe. In any event, Officer Hurst stated that he had no reason

to believe that the officers had been fired upon. Despite the officers’ commands to put the gun

down, Evans ran inside his residence, returned the gun to Cox, and soon exited again unarmed.1

        Evans submitted to the custody of the officers and complied with their instructions.

According to Officer Hurst, Evans was taken into custody because he had violated a city ordinance

prohibiting discharging firearms within the city limits. According to Officer Stafford, Evans was

also arrested for pointing a gun at a police officer.

        Responding to the “shots fired” call, more officers2 and Lieutenant Martin arrived on the

scene. While being handcuffed, in response to the questions by either Officer Stafford or Lieutenant

Martin, Evans indicated that there were four people and “guns” in the residence. According to

Officer Stafford, after being informed that people remained in the residence, Lieutenant Martin then

“made the decision to go in and clear out the people, because there was still a firearm in the house

and we didn’t want anything bad to happen.” Officer Stafford also acknowledged in his deposition

that: he did not know who was inside the residence; he had no knowledge that anyone in the

residence was a convicted felon; and it is not illegal to have a firearm in the interior of a home in the




        1
          According to Evans’s deposition testimony, Evans heard someone telling him to “hold it
right there,” but could not tell if it was a police officer because it was dark outside and the officers
were wearing dark clothing.
        2
         It is not clear exactly how many officers responded to the call. Melissa Smith, who was also
staying at Evans’s house, estimated that by the time she had come out of Evans’s residence there may
have been eight or nine officers. Charles Cox estimated that he saw “at least five or six [officers].”

                                                   3
City of Hamilton, “other than the fact that we needed it for evidence of a crime.” He also stated that

the decision to go into the residence was made for “officer safety.”

        After announcing himself, Officer Stafford entered the residence and commanded all persons

inside to put their hands up and exit the residence. Lieutenant Martin was standing at the back exit

of Evans’s residence with his shotgun resting on the doorframe while Officer Stafford searched the

home.

        Rick Walters contends that he awoke to the sound of a policeman’s voices and walked out

of the bedroom door as a policeman pointed a gun at him.3 The policeman asked whether there was

anybody else inside the residence, to which Rick Walters responded that his wife was still inside.

Rick Walters then asked his wife to get dressed and come out of the bedroom. According to both

plaintiffs, after getting dressed, Christa Walters emerged from the bedroom with her hands up. Rick

Walters walked ahead of his wife, and followed instructions to “walk slowly to the back door.” He

then walked through the back door, down a set of steps, and into the backyard. Christa Walters says

she lagged somewhat behind, but eventually walked towards the back door with her hands up.

        Officer Stafford contends that, after encountering Christa Walters in the kitchen, he told her

to show her hands and go towards the door. At the back of Evans’s residence is a doorway with

virtually no landing leading down a narrow staircase with a wall on one side and no railing on the

other side. Christa Walters claims that she paused at the door to let her husband descend the steps.

As she approached the door and was about to take her first step, she claims that she felt a push on

her back from behind. She then fell towards the ground, landing on or near others in the yard, and


        3
        Rick Walters testified that Officer Hurst entered the residence. It is unclear whether Rick
Walters confused Officer Stafford for Officer Hurst, but this fact is not relevant to the issues on
appeal.

                                                  4
breaking her left wrist. Evans and Rick Walters described her as “flying” over the steps. Rick

Walters also claims to have seen an officer push his wife “hard,” although he recalls that it was

Officer Hurst. Initially, however, in a statement to police, Rick Walters described his wife as being

“grabbed . . . and pulled . . . out of the back door.” Rick Walters later clarified that by saying

“grabbed,” he could have meant “pushed.” Officer Stafford denies pushing Christa Walters.

         According to Lieutenant Martin, as Christa Walters was approaching the exit, he was yelling

and gesturing for her to get “out, out, out,” while his gun was pointed at the doorway that she was

emerging from. Lieutenant Martin contends that Christa Walters appeared hesitant and lowered her

hands from head-height to waist-height. This hesitancy, he says, made him suspicious and concerned

because the weapon had not yet been located and because “typically . . . when you have a weapon

pointed at somebody and . . . you’re giving them commands . . . they usually comply. She wasn’t

very compliant.” It is undisputed that Christa Walters had not been searched for weapons at this

point.

         Lieutenant Martin claims that due to Christa Walters’s hesitancy and non-compliance, he

pulled her through the door to protect her and the officers. Specifically, when Christa Walters was

within arm’s length, he contends that he reached with his left arm, took her by the arm and pulled

her towards him. But as he was pulling her, he was also focused on the doorway out of concern that

others might be exiting, and “at some point [he] let go of her arm.” Following the incident,

Lieutenant Martin filed a use of force form, in which he indicated that he used force for “self-

defense,” based on his concern that Christa Walters may have possessed a weapon.

         After Christa Walters hit the ground, Rick Walters contends that he exclaimed to the officers,

“I saw that,” and “I saw what you did.” At some point thereafter, Rick Walters contends that he was


                                                   5
handcuffed before being placed in a police car. Although he was unable to identify which officer

handcuffed him, he claims that he felt like he was handcuffed for “hours and hours.” He was told

that he was not under arrest, but was nevertheless taken to the police station for questioning.

Although officers at the scene had procured an ambulance for Christa Walters, Rick Walters was not

permitted to accompany his wife to the hospital.

       Officer Stafford contends that when he exited the Evans residence, he did not see Rick

Walters in the yard. He then left the scene to procure a consent to search form. When he returned,

he followed Lieutenant Martin’s instructions to distribute search forms, but again did not see Rick

Walters at the scene.

       Lieutenant Martin testified that, after exiting Evans’s residence, he was occupied with

directing officers to: procure a consent to search form; call a squad to tend to Christa Walters; and

procure detectives to come to the scene to interview people and search the residence. He also

testified that he saw Rick Walters in the yard and informed him that the police had arranged for

Christa Walters to be taken to the hospital.

       After the house was cleared of people, Evans consented to a search of the residence, in which

officers located the weapon used in the shooting. No charges were filed against Rick and Christa

Walters. Evans was charged with aggravated menacing, to which he pled guilty.

       Rick and Christa Walters’s amended complaint alleged seven claims against Officer Stafford,

Lieutenant Martin, and yet to be identified officers of the Hamilton Police Department (all in their

individual capacities only), and the City of Hamilton. Defendants filed a motion for summary

judgment, arguing, inter alia, that: (1) defendants were entitled to qualified immunity as to Rick

Walters’s unreasonable seizure claim; (2) defendants were entitled to qualified immunity as to Rick


                                                   6
Walters’s claim that defendants retaliated against him for exercising his First Amendment rights; (3)

defendants were entitled to qualified immunity as to plaintiffs’ unreasonable search claim; and (4)

Lieutenant Martin was entitled to qualified immunity as to Christa Walters’s claim that he used

excessive force. The district court denied in part4 the motion for summary judgment, rejecting the

arguments listed above.

                                                    II.

        This court has jurisdiction over final decisions of district courts of the United States. 28

U.S.C. § 1291. A district court’s denial of qualified immunity qualifies as a “final decision” if it

turns on a question of law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Plaintiffs argue that the

district court’s order was not a final decision because the order concluded that some genuine issues

of fact existed. But “regardless of the district court’s reasons for denying qualified immunity, [this

court] may exercise jurisdiction over the [defendants’] appeal to the extent it raises questions of

law.” Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 402-03 (6th Cir. 2007) (citation and

quotation marks omitted). Even if a defendant raises “impermissible arguments regarding disputes

of fact,” so long as “the defendant also raises the purely legal question of whether the facts alleged

. . . support a claim of violation of clearly established law, then there is an issue over which this court

has jurisdiction.” Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (citation and

quotation marks omitted).




        4
       The district court granted defendants’ motion for summary judgment as to a number of other
issues—including the dismissal of the City of Hamilton—that are not currently on appeal.

                                                    7
       In this case, although defendants contest some issues of fact, they also raise the purely legal

questions of whether the facts alleged support claims of violations of clearly established laws. This

court has jurisdiction to hear those issues pursuant to 28 U.S.C. § 1291.




                                                  III.

       We review a denial of qualified immunity de novo. Humphrey v. Mabry, 482 F.3d 840, 846

(6th Cir. 2007). Where a defendant raises a qualified immunity defense, the plaintiffs bear the

burden of proving that officers are not shielded by qualified immunity. Livermore, 476 F.3d at 403.

Qualified immunity “shields governmental officials performing discretionary functions . . . from civil

damages liability as long as their actions could reasonably have been thought consistent with the

rights they are alleged to have violated.” Livermore, 476 F.3d at 403 (internal quotation and citation

omitted). Our qualified immunity analysis proceeds in two steps. First, we determine whether

“[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right?” Scott v. Harris, 127 S. Ct. 1769, 1774 (2007)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). If we answer this question affirmatively, we

then ask “whether the right was clearly established . . . in light of the specific context of the case.”

Id.5

       “For a right to be clearly established, the contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.” Feathers v. Aey,



       5
        We note that while the Supreme Court recently held that this two-step analysis is no longer
mandatory, it “continue[s] to recognize that the Saucier protocol is often beneficial.” Pearson v.
Callahan, __ U.S. __, 2009 WL 128768, at *9 (Jan. 21, 2009).

                                                   8
319 F.3d 843, 848 (6th Cir. 2003). Although the very action in question need not have been

previously held unlawful, the unlawfulness must be “apparent from direct holdings, from specific

examples described as prohibited, or from the general reasoning that a court employs.” Id. (citing

Hope v. Pelzer, 536 U.S. 730 (2002)); see also Baranski v. Fifteen Unknown Agents of Bureau of

Alcohol, Tobacco and Firearms, 452 F.3d 433, 447 (6th Cir. 2006) (“A right is ‘clearly established,’

. . . when it is no longer among the ‘hazy’ area of constitutional issues that might be ‘reasonably

misapprehend[ed]’ by a law enforcement officer at the scene.”) (quoting in part Brosseau v. Haugen,

543 U.S. 194, 198 (2004)). Overall, because “reasonable mistakes can be made as to the legal

constraints on particular police conduct,” qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law,” see Dorsey v. Barber, 517 F.3d 389, 394 (6th

Cir. 2008) (internal citations and quotation marks omitted).

                                                IV.

       Rick Walters first alleges that he was unlawfully seized when he was handcuffed and forced

to go to the police station without arrest or probable cause. The district court concluded that Rick

Walters had sufficiently introduced evidence showing a Fourth Amendment violation based on

clearly established law at the time of the violation. But defendants argue that plaintiffs have not

introduced evidence sufficient to show that either Lieutenant Martin or Officer Stafford participated

in the unreasonable seizures. We agree.

       The district court correctly concluded that the evidence introduced could establish that Rick

Walters was unreasonably seized after he left Evans’s residence. While plaintiffs’ brief detention

within the Evans’s residence qualified as a permissible investigatory seizure under Terry v. Ohio,




                                                 9
392 U.S. 1, 20 (1968), when Rick Walters was handcuffed, ordered to stay on the lawn, and taken

to the police station after leaving the residence, these actions constituted an unreasonable seizure.6

       However, “each defendant’s liability must be assessed individually, based on his or her own

actions.” Dorsey, 517 F.3d at 399 n.4. Rick Walters was not able to identify which officers

handcuffed and detained him. Nor does he point to any other evidence from which a reasonable jury

could conclude that either Officer Stafford or Lieutenant Martin would be liable for the unreasonable

seizure.

                                                 A.

       Based on Lieutenant Martin’s title and the role that he played in directing officers’ activity

at the scene, it appears that he was acting in a supervisory capacity. Therefore, plaintiffs’ claim


       6
          A “seizure” occurs when “there is a governmental termination of freedom of movement
through means intentionally applied,” Scott, 127 S. Ct. at 1776, and where “a reasonable person
would have believed that he was not free to leave,” United States v. Mendenhall, 446 U.S. 544, 554
(1980). Brief investigatory seizures, or “Terry stops,” are not unreasonable if: (1) an “officer’s
action was justified at its inception,” and (2) the action “was reasonably related in scope to the
circumstances which justified the interference in the first place.” United States v. Perez, 440 F.3d
363, 369-70 (6th Cir. 2006) (quoting Terry, 392 U.S. at 20). The first Terry requirement is satisfied
where there is “reasonable suspicion supported by articulable facts that criminal activity may be
afoot.” Id. at 370 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). The second Terry
requirement is met if the detention lasts no longer than necessary to effectuate the purpose of the
seizure. Id. at 372. On the other hand, “[w]hen police actions go beyond checking out the
suspicious circumstances that led to the original [Terry] stop, the detention becomes an arrest that
must be supported by probable cause.” Smoak v. Hall, 460 F.3d 768, 780-81 (6th Cir. 2006) (citation
and quotation marks omitted). In determining whether this line has been crossed, we consider “the
length of the detention, the manner in which it is conducted, and the degree of force used.” Id.
        In this case, the police had reasonable suspicion that criminal activity was afoot. Putting
aside the issue of whether the warrantless entry was justified, see infra Part VI, this suspicion
justified verifying the safety of the inhabitants of the residence and removing them from the house.
        But after Rick Walters left the house, he alleges that he was handcuffed, ordered to stay on
the lawn, placed in the back of the police car, taken to the police station, and detained there for a
significant period of time without arrest. These alleged facts establish that (1) Rick Walters was
seized, and (2) the detention was longer than necessary to effectuate any possible purpose of the
detention.

                                                 10
against Lieutenant Martin could proceed under a theory of supervisory liability. See, e.g., Ontha v.

Rutherford County, 222 F. App’x 498, 503 (6th Cir. 2007).

        Although supervisory officials may be liable in certain situations for their failure to supervise

or control individual officers, liability may not be based on a respondeat superior basis. Hays v.

Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982). Instead,

        [t]here must be a showing that the supervisor encouraged the specific incident of
        misconduct or in some other way directly participated in it. At a minimum, a § 1983
        plaintiff must show that a supervisory official at least implicitly authorized, approved
        or knowingly acquiesced in the unconstitutional conduct of the offending
        subordinate.

Petty v. County of Franklin, Ohio, 478 F.3d 341, 349 (6th Cir. 2007) (emphasis added) (quoting

Taylor v. Michigan Dep’t of Corrs., 69 F.3d 76, 81 (6th Cir. 1995)). “Supervisory liability under

§ 1983 cannot attach where the allegation of liability is based upon a mere failure to act.” Gregory

v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (quoting Bass v. Robinson, 167 F.3d 1041,

1048 (6th Cir. 1999)). A plaintiff must show that a supervising officer “did more than play a passive

role in the alleged violation or showed mere tacit approval of the goings on.” Bass,167 F.3d at 1048.

“Nor can the liability of supervisors be based solely on the right to control employees, or simple

awareness of employees’ misconduct.” McQueen v. Beecher Community Schools, 433 F.3d 460, 470

(6th Cir. 2006) (internal citation and quotation marks omitted); see also Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999) (supervisor’s knowledge of unconstitutional conduct and failure to act did

not create supervisor liability).

        Lieutenant Martin testified that after exiting Evans’s house, he was occupied with directing

officers to perform various tasks including procuring consent to search forms, tending to Christa

Walters, and calling detectives to the scene. He also testified that he saw Rick Walters and informed


                                                   11
him that a squad car had been called to transport Christa Walters to the hospital. Lieutenant Martin

did not recall any other events related to the detention of Rick Walters, nor have plaintiffs offered

any additional evidence of Lieutenant Martin’s activities during this time.

        At best the record supports an inference that Lieutenant Martin was aware of the activities

at the scene and failed to act. But such a showing is not sufficient to show that he “implicitly

authorized, approved or knowingly acquiesced in the unconstitutional conduct” of offending officers.

See McQueen, 433 F.3d at 470. Therefore, we conclude that Lieutenant Martin is entitled to

qualified immunity with respect to Rick Walters’s unreasonable seizure claim.

                                                  B.

        We next turn to Officer Stafford’s role.         Non-supervisory officers “present for an

unconstitutional seizure can . . . be held liable for failure to protect.” Smoak v. Hall, 460 F.3d 768,

784 -85 (6th Cir. 2006); Barton v. Norrod, 106 F.3d 1289, 1299 (6th Cir. 1997) (“a non-supervisory

law enforcement officer present at a scene where other officers are violating a person’s civil rights

may have a duty to intervene”). But, “we have found no cases in this circuit where a nonsupervisory

officer who was not present at the scene or did not actively participate in a constitutional deprivation

was held liable for the failure to prevent the constitutional violation from occurring.” Smoak, 460

F.3d at 785.

        Rick Walters has not introduced evidence that Officer Stafford personally handcuffed,

transported, or detained him. Officer Stafford contends that after leaving Evans’s house, he did not

see Rick Walters in the yard. He contends that he then left the scene to procure a consent to search

form, and upon his return, Rick Walters was no longer at the scene. While we must view the

evidence in the light most favorable to Rick Walters, our inferences must be supported by the record.


                                                  12
See Scott, 127 S. Ct. at 1776 n.8. The record here provides no indication that Officer Stafford

participated in any of the handcuffing, transport, or detention that could have constituted an

unreasonable seizure.

        Because plaintiffs have not introduced evidence showing that Officer Stafford violated Rick

Walters’s constitutional right to be free from unreasonable seizure, we conclude that Officer Stafford

is also entitled to qualified immunity as to this claim.

                                                 V.

        Rick Walters claims that the same acts that constituted an unreasonable seizure also

amounted to retaliation for the exercise of his First Amendment rights. Specifically, Rick Walters

contends that, after his wife was pushed down the steps, he exclaimed to the police on the scene,

“I saw that” and “I saw what you did,” and that the police retaliated against him by handcuffing him

and forcing him to go to the police station. The district court denied defendants qualified immunity,

again concluding that Rick Walters had introduced evidence showing the violation of a well

established constitutional right.   Once again, however, we conclude that Rick Walters has not

introduced evidence showing that Lieutenant Martin or Officer Stafford participated in the alleged

acts of retaliation.

                                                 A.

        To establish retaliation, a plaintiff must show that: (1) he was participating in a

constitutionally protected activity; (2) defendant’s action injured him “in a way likely [to] chill a

person of ordinary firmness from further participation in that activity”; and (3) his constitutionally

protected activity partially motivated defendant’s adverse action. Center for Bio-Ethical Reform,

Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007) (citation and quotation marks omitted).


                                                  13
If the plaintiff raises an inference that the defendant’s conduct was partially motivated by the

plaintiff’s protected activity, the burden shifts to the defendant to demonstrate that it would have

taken the same action regardless of the protected activity. Id.

       We assume arguendo that Rick Walters has introduced sufficient evidence to establish a

prima facie case of retaliation and that defendants have not provided an alternative explanation for

the detention. But because each defendant’s liability must be assessed based on his or her own

actions, Dorsey, 517 F.3d at 399 n.4, we must determine whether Officer Stafford or Lieutenant

Martin played any role in the detaining activities alleged to constitute retaliation.

                                                  B.

                                                  1.

       For the reasons provided above, see supra Part V, Rick Walters has not pointed to facts that

would show that Lieutenant Martin participated in any of the alleged acts of retaliation, or, in a

supervisory capacity, “implicitly authorized, approved, or knowingly acquiesced in the

unconstitutional conduct of other officers,” see McQueen, 433 F.3d at 470. Therefore, we reverse

the district court and conclude that Lieutenant Martin is entitled to qualified immunity as to Rick

Walters’s retaliation claim.

                                                  2.

       Viewing the evidence in the light most favorable to Rick Walters, we assume that Officer

Stafford was present for Rick Walters’s protected speech. After all, the criticism occurred almost




                                                  14
immediately after Christa Walters was allegedly pushed off the steps by Officer Stafford7 and may

have been directed towards Officer Stafford. Still, Rick Walters has not identified Officer Stafford

or Officer Hurst (whom he may have confused him with) as being present during the alleged acts of

retaliation—the detention in Evans’s yard, handcuffing, and trip to the police station. Because Rick

Walters has failed to introduce evidence showing that Officer Stafford retaliated against him, we

reverse the denial of qualified immunity to Officer Stafford as to this claim as well.


                                                   VI.


         Defendants next contend that the district erred by not granting them qualified immunity with

respect to plaintiffs’ unreasonable search claim. Plaintiffs claim that defendants’ warrantless entry

into Evans’s residence amounted to an unreasonable search.8 Defendants argue that (1) no

constitutional violation occurred because exigent circumstances justified their warrantless entry and

search of Evans’s home; and alternatively (2) defendants did not violate a clearly established

constitutional right.

                                                   A.

         “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). But warrantless entries are permitted under “exigent circumstances.” See, e.g., Causey v.


         7
             Again, Rick Walters testified that he thought Officer Hurst pushed Christa Walters off the
steps.
         8
         Plaintiffs have standing to contest the warrantless entry and search of Evans’s residence.
As social acquaintances and overnight guests of Evans, plaintiffs had a reasonable expectation of
privacy in their host’s residence. See United States v. Pollard, 215 F.3d 643, 647 (6th Cir. 2000)
(citing Minnesota v. Olsen, 495 U.S. 91, 95 (1990)).

                                                    15
City of Bay City, 442 F.3d 524, 529 (6th Cir. 2006) (citation and quotation marks omitted).

Although there is not an exhaustive or inflexible list of circumstances qualifying as exhaustive, see

United States v. Rohrig, 98 F.3d 1506, 1515,1519-21 (6th Cir. 1996), we have found exigent

circumstances to exist where, for example, (1) “officers were in hot pursuit of a fleeing suspect”; (2)

“the suspect represented an immediate threat to the arresting officers and public”; or (3) “immediate

police action was necessary to prevent the destruction of vital evidence or thwart the escape of

known criminals.” Causey, 442 F.3d at 529 (citation and quotation marks omitted). Whether exigent

circumstances exist is generally an issue for a jury. Hancock v. Dodson, 958 F.2d 1367, 1375 (6th

Cir. 1992). But if “the underlying facts are essentially undisputed, and where a finder of fact could

reach but one conclusion as to the existence of exigent circumstances, the issue may be decided by

the trial court as a matter of law.” Id.

        Viewing the evidence in the light most favorable to plaintiffs, defendants knew upon entering

Evans’s residence that: Evans had fired his gun before placing the gun in the residence; Evans was

now detained; at least one weapon remained in Evans’s residence; and other people remained in

Evans’s residence. This set of facts creates a close legal issue as to the existence of exigent

circumstances justifying entry of the house. Clearly a concern for those still in Evans’s home could

create an exigency. See Causey, 442 F.3d at 529 (exigency existed where “officers . . . reasonably

suspected that immediate police action was necessary to ascertain whether someone inside the house

was in peril”). In this case, defendants note that when the decision was made to enter the residence,

the officers knew that guns and people remained in the residence and that the circumstances




                                                  16
surrounding the discharge of the firearm were unclear.9 Defendants have also noted a concern for

the safety of the officers.

                                                  B.

       Ultimately, however, it is unnecessary to resolve the issue of whether exigent circumstances

justified the warrantless entry. Defendants argue that even if exigent circumstances did not justify

their warrantless entry, they did not violate clearly established law as of 2003. The relevant inquiry

in this case “is whether an objectively reasonable officer would have believed that exigent

circumstances existed to justify the warrantless search in light of clearly established law and in light

of the information possessed by the defendants.” See O’Brien v. City of Grand Rapids, 23 F.3d 990,

998 (6th Cir. 1994). In other words, was it “objectively reasonable for the officers to conclude, given




       9
         In determining whether concern for the inhabitants of a home creates an exigency justifying
a warrantless entry, this court has held that while the evidence of firearms within a residence does
not create an exigency by itself, “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.” United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996). This court
has previously focused on whether an officer might reasonably conclude that a potential suspect is
willing to use a weapon. Compare Dickerson v. McClellan, 101 F.3d 1151, 1159-60 (6th Cir. 1996)
(exigency existed where officers could reasonably believe suspect was willing to use weapon
because he had purportedly fired nine gunshots); Hancock, 958 F.2d at 1375-76 (exigent
circumstances existed where officers received information indicating that shots had been fired, the
suspect was suicidal, possibly homicidal, and had “threatened to kill any police officer who arrived
on the scene”); Estate of Bing v. Whitehall, 456 F.3d 555, 565 (6th Cir. 2006) (exigent circumstances
existed where police were informed that shots had been fired by an intoxicated suspect who could
be homicidal and had access to a gun, and bystanders and neighbors were present nearby); and
Causey, 442 F.3d 530-31 (exigency where officers knew that shots had been fired in a backyard on
New Years Eve and that a 911 hangup call had come from the residence earlier, even though
residents told officers through the window that no one was injured) with Bates, 84 F.3d at 795-96
(no exigency existed where officers had no reason to believe that anyone in the residence was
dangerously armed or prone to violence).

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the information they had, that immediate action . . . . without first obtaining a warrant was

necessary.” Id.

       Even if defendants were incorrect in concluding that exigent circumstances existed, they were

not objectively unreasonable in believing in their existence. Here defendants had knowledge of

several facts giving rise to a legitimate concern for officer and public safety. Clearly established law

did not provide guidance indicating that their course of action was unlawful. Consequently, we

conclude that both defendants were entitled to qualified immunity on plaintiffs’ unreasonable search

claim and reverse the district court’s contrary conclusion.

                                                  A.

       As an initial matter, the district court was correct to analyze this claim under the Fourth

Amendment. All claims alleging “that law enforcement officers have used excessive force . . . in

the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989). Therefore, “[a] seizure must

occur before an excessive force claim is cognizable under the Fourth Amendment.” Dunigan, 390

F.3d at 492. Plaintiffs have clearly introduced evidence establishing that Christa Walters was

“seized.” After all, Christa Walters was led out of the house in the middle of the night by armed

officers instructing her to walk slowly towards the back door and yelling “out, out, out.” This

constituted “a governmental termination of freedom of movement through means intentionally

applied,” see Scott,127 S.Ct. at 1776, and a reasonable person in Christa Walters’s position would

believe that she was not free to leave, see United States v. Mendenhall, 446 U.S. 544, 554 (1980).

Thus, we analyze this claim under the Fourth Amendment to see if the force used was unreasonable.


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                                                  B.

        “At the summary judgment stage . . . once we have determined the relevant set of facts and

drawn all inferences in favor of the nonmoving party . . . the reasonableness of [an officer’s] actions

. . . is a pure question of law.” Scott, 127 S. Ct. at 1776 n.8. Whether a law enforcement officer’s

use of force is reasonable “requires a careful balancing of the nature and quality of the intrusion on

the individual’s Fourth Amendment interests against the countervailing governmental interests at

stake.” Graham, 490 U.S. at 396 (citation and quotation marks omitted). In other words, “we must

consider the risk of bodily harm that [the officer’s] actions posed . . . in light of the threat to the

public that [the officer] was trying to eliminate.” Scott, 127 S. Ct. at 1778. “Reasonableness” is

judged “from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Graham, 490 U.S. at 396. As we have explained:

       Not every push or shove, even if it may later seem unnecessary in the peace of a
       judge’s chambers” violates the Fourth Amendment. The calculus of reasonableness
       must embody allowance for the fact that police officers are often forced to make
       split-second judgments-in circumstances that are tense, uncertain, and rapidly
       evolving-about the amount of force that is necessary in a particular situation.

Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir. 2004) (quoting Graham, 490 U.S. at 396-97)

(emphasis omitted).

        In conducting this “reasonableness” analysis, this court has often looked to: “(1) the severity

of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the police

officers or others, and (3) whether the suspect actively resisted arrest or attempted to evade arrest by

flight.” See, e.g., Floyd v. City of Detroit, 518 F.3d 398, 407 (6th Cir. 2008) (citing Smoak, 460 F.3d

at 783). “This standard contains a built-in measure of deference to the officer’s on-the-spot




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judgment about the level of force necessary in light of the circumstances of the particular case.”

Smoak, 460 F.3d at 783 (quotation marks and citation omitted).

          Gratuitous violence is never reasonable. See Solomon v. Auburn Hills Police Dep’t, 389 F.3d

167 (6th Cir. 2004) (where mother presented no danger but violated movie theater policy, it was

unreasonable to kick her legs out from under her and throw her into a bookcase); Adams v. Metiva,

31 F.3d 375, 387 (6th Cir. 1994) (spraying mace on an incapacitated person constituted excessive

force). After all, there is “simply no governmental interest” justifying gratuitous violence. See

Phelps v. Coy, 286 F.3d 295, 302 (6th Cir. 2002).

          On the other hand, significant government interests can justify even fairly substantial physical

intrusions. For example in Dunigan, this court concluded that a police officer did not exert

unreasonable force when, in pursuit of a convicted felon, the police officer pushed the felon’s 59

year-old mother (the plaintiff) part way down a narrow basement staircase. 390 F.3d at 493-95. In

this “chaotic, tense, and rapidly evolving situation,” the police officer’s actions were reasonable

because he was focused on apprehending a potentially fleeing fugitive, and the plaintiff’s “presence

in the midst of this situation interfered with [the police officer’s] efforts to perform his duties.” Id.

at 494.

          Clearly, Christa Walters has introduced evidence showing that the force used against her was

significant. She and others describe her as “flying” over the steps, and her injury (a broken wrist)

is not in dispute. But Christa Walters has not introduced evidence from which a reasonable jury

could conclude that Lieutenant Martin used unreasonable force. Instead, plaintiffs focus almost

exclusively on Officer Stafford and his alleged push. No one disputes that this push could constitute




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excessive force. But as to Lieutenant Martin, the record only suggests that he pulled Christa Walters

towards him—with at least some justification.

        Although we must view the facts in the light most favorable to Christa Walters—not

Lieutenant Martin—Christa Walters does not contest Lieutenant Martin’s version of the relevant

facts. According to Lieutenant Martin, as Christa Walters was approaching the exit, she appeared

hesitant and lowered her hands from head-height to waist-height. This hesitancy made him

suspicious because the weapon had not yet been located. Therefore, when she was close enough to

reach, Lieutenant Martin claims he grabbed her by the arm and swung her towards him. But, still

focused on the doorway and concerned that others might be exiting, he lost his grip.

       Christa Walters essentially argues that Lieutenant Martin exercised poor judgment and that

he should have been more careful given that she was descending a dangerous set of stairs. But on

these facts alone, we do not think a reasonable jury could conclude that Lieutenant Martin used

unreasonable force. As in Dunigan, Lieutenant Martin was responding to a serious situation. Shots

had recently been fired under unclear circumstances. While the shooter had been detained, the gun

had not been found. In this “chaotic, tense, and rapidly evolving situation,” it is understandable that

Lieutenant Martin was focused on the entire scene unfolding and not just on Christa Walters before

him. To be sure, if Lieutenant Martin was concerned that Christa Walters might possess a weapon,

it seems that the more reasonable approach would have been to frisk her for weapons before she

descended the precarious stairway. But because reasonableness is judged from the perspective of

an officer on the scene and because we recognize the difficulty in making split-second judgments,

we decline to second guess Lieutenant Martin’s actions under the circumstances. We conclude that

Lieutenant Martin used “the amount of force that a reasonable officer in the heat of the moment


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could have believed was needed.” See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 687

(6th Cir. 2006).

                                               VIII.

       For the foregoing reasons, we reverse the district court’s denial of qualified immunity to both

defendants as to Rick Walters’s unreasonable seizure and retaliation claims; reverse the district

court’s denial of qualified immunity to both defendants as to plaintiffs’ unreasonable search claim;

and reverse the district court’s denial of qualified immunity to Lieutenant Martin as to Christa

Walters’s excessive force claim.




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