            Case: 17-14779   Date Filed: 08/30/2018   Page: 1 of 12


                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 17-14779
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 6:16-cv-00303-JA-GJK



ELVAN MOORE,

                                                       Plaintiff - Appellee,

                                   versus


SHERIFF OF SEMINOLE COUNTY, FLORIDA SHERIFFS
OFFICE, et al.,

                                                       Defendants,

ANTHONY EGER,
Deputy (badge #3314),
WILLIAM DUNN,
Deputy (badge #3214),

                                                       Defendants - Appellants.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________
                             (August 30, 2018)
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Before JILL PRYOR, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Elvan Moore brought a claim pursuant to 42 U.S.C. § 1983 against Officers

Anthony Eger and William Dunn after they searched his residence without a

warrant. He alleges that they violated his rights under the Fourth Amendment and

also that, under Florida law, they violated his right to privacy and committed

trespass. The officers moved for summary judgment, asserting that they were

entitled to qualified immunity on Moore’s federal claim and official immunity as

to Moore’s state claims. The district court denied the officers’ motion, and the

officers appealed. After careful review, we affirm the district court’s denial of

qualified immunity on Moore’s federal claim. We dismiss for lack of subject

matter jurisdiction the officers’ appeal from the denial of official immunity on

Moore’s state law claims.

                               I.      BACKGROUND

      Moore and the defendant officers gave conflicting accounts of the events

underlying this case. We thus note at the outset that “[i]n conducting de novo

review of the district court’s disposition of a summary judgment motion based on

qualified immunity, we are required to resolve all issues of material fact in favor of

the plaintiff.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).




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      In the early morning hours of January 26, 2012, the Seminole County

Sheriff’s dispatch received an anonymous call reporting that a group of people had

been “partying all night” at Moore’s apartment and the party had become “a big

old fight on the patio.” Doc. 55.1 The caller stated that she could hear a male and

a female voice. The dispatcher radioed the deputies, informing them that a loud

party had become a fight on the back patio and designating the call “a fight[] in

progress,” indicating that the call was a priority. Doc. 46 at 2. The dispatch report

indicated that the fight was verbal.

      Deputy Christopher Clutter was the first to respond to the dispatch. When

he arrived at the reported address, he saw two people on the second floor balcony

of the apartment, one male and one female. He did not see any evidence that

anyone was injured or hear any arguing, but he could not see into the apartment.

When Clutter knocked on the front door, the two individuals he had observed on

the balcony answered the door. Clutter asked them whether there had been a fight.

They responded that there had been a fight, but the people involved had departed

shortly before Clutter’s arrival. After informing Clutter that neither of them lived

at the apartment, the two individuals went to retrieve Moore while Clutter waited

at the door.




      1
          Citations to “Doc. #” refer to the numbered entries on the district court’s docket.
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       Moore came to the front door and asked Clutter if there was a problem;

Clutter responded that there had been a report of a fight. Clutter asked Moore to

go get his identification, and Moore went upstairs to look for it. While Moore was

upstairs, Officers Eger, Dunn, and Ramon Otero arrived. The officers testified that

they saw no indication of a previous or an ongoing fight. They testified that when

Moore returned to the door he became agitated and argumentative and appeared

intoxicated. Moore testified that he was not intoxicated, but he admitted that he

may have been swaying because he was angry due to the officers’ presence.

       One of the officers then stated that he was going inside the apartment.

Moore asked the officers whether they had a warrant or had witnessed a crime, and

one of the officers responded that they had not. Moore told the officers they could

not enter his apartment “under any circumstances.” Doc. 47-1 at 4. Eger

nonetheless passed Moore and walked into the apartment, mentioning something

about Eger’s girlfriend. 2 Dunn followed Eger into the apartment. Clutter and

Otero remained outside with Moore. One of the officers told Moore not to “worry

about it,” explaining that Eger was looking for his girlfriend, Lauren.3 Doc. 49 at

59. According to Moore, a few minutes before the officers arrived, Lauren had left


       2
         According to the officers, Moore first stated that the officers needed a warrant to enter
his apartment, but eventually he opened the door and stated, “go ahead.” Doc. 50 at 17. At
summary judgment, however, we credit Moore’s version of events. See Lee, 284 F.3d at 1190.
       3
         Eger testified that he had dated a woman named Lauren in 2012, but he could not recall
if he was dating her at the time he entered Moore’s home.
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his apartment. While they were inside, Dunn and Eger spoke to a man and woman

who said the people involved in the fight had left. After looking around the

apartment for a few minutes, Dunn and Eger exited it.

      Moore filed suit against Eger and Dunn in state court, and the defendants

removed the case to federal district court. In his amended complaint, Moore

alleged claims under § 1983 that the officers had violated his rights under the

Fourth Amendment. He also alleged claims under Florida law for invasion of

privacy and trespass. The officers moved for summary judgment as to Moore’s

federal and state law claims based on qualified and official immunity, respectively,

and the district court denied the motion. This is the officers’ appeal.

                        II.    STANDARD OF REVIEW

      We review the district court’s denial of summary judgment de novo, viewing

the facts in the light most favorable to the nonmoving party. Hadley v. Gutierrez,

526 F.3d 1324, 1328 (11th Cir. 2008). “We then answer the legal question of

whether the defendant[] [is] entitled to qualified immunity under that version of the

facts.” Lee, 284 F.3d at 1190 (alteration in original) (internal quotation marks

omitted).




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                                   III.   DISCUSSION

A.     Qualified Immunity

       To prove a claim brought under § 1983, a plaintiff must show that he “was

deprived of a federal right by a person acting under color of state law.” Almand v.

DeKalb Cty., 103 F.3d 1510, 1513 (11th Cir. 1997). When defending against a

§ 1983 claim, a government official may assert the defense of qualified immunity,

which “allow[s] government officials to carry out their discretionary duties without

the fear of personal liability or harassing litigation.” Lee, 284 F.3d at 1194. A

government official asserting this defense bears the initial burden of showing that

“he was acting within his discretionary authority.” Skop v. City of Atlanta, 485

F.3d 1130, 1136 (11th Cir. 2007).

       Because it is clear that the officers were acting within their discretionary

authority, the burden shifts to Moore to show that the officers are not entitled to

qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003). To

do so, Moore must show both (1) that the officers violated his constitutional rights

and (2) that those rights were clearly established at the time of the conduct in

question. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.

2004). The district court correctly determined that Moore satisfied both prongs of

that test here.




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      We begin by considering whether Moore has shown that the officers violated

his constitutional rights. The officers argue they were permitted to enter Moore’s

residence without a warrant under the exigent circumstances exception to the

warrant requirement. We disagree. The Fourth Amendment guarantees “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend IV. “Central to the

protections provided by the Fourth Amendment is ‘the right of a man to retreat into

his own home and there be free from unreasonable governmental intrusion.’”

United States v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013) (quoting Kyllo v.

United States, 533 U.S. 27, 31 (2001)). Given the home’s privileged place under

the Fourth Amendment, the Supreme Court has long held that “searches and

seizures inside a home without a warrant are presumptively unreasonable.” Payton

v. New York, 445 U.S. 573, 586 (1980).

      “Nevertheless, there are several well-established exceptions to the warrant

requirement.” Timmann, 741 F.3d at 1178. One such exception permits

warrantless entry when “exigent circumstances” create a “compelling need for

official action and [there is] no time to secure a warrant.” United States v.

Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002) (internal quotation marks

omitted). “The most urgent of these exigencies is the need to protect or preserve

life[,] . . . known as the emergency aid exception.” Timmann, 741 F.3d at 1178


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(internal quotation marks omitted). Under this exception, officers may enter a

home without a warrant to offer “emergency assistance to an injured occupant or to

protect an occupant from imminent injury.” Id. (internal quotation marks omitted).

      For the emergency aid exception to apply, “officers must have an objectively

reasonable belief that someone inside is ‘seriously injured or threatened with such

injury,’ and is in need of immediate aid.” Id. (quoting Brigham City v. Stuart, 547

U.S. 398, 403-04 (2006)). “Courts have held police officers’ belief that someone

inside a home needs immediate assistance objectively reasonable under various

circumstances.” Id. at 1179. All of these cases “have in common the indicia of an

urgent, ongoing emergency, in which officers have received emergency reports of

an ongoing disturbance, arrived to find a chaotic scene, and observed violent

behavior, or at least evidence of violent behavior.” Id.

      As in Timman, “[t]he situation the officers confronted in the instant case

bears none of these indicia of an urgent, ongoing emergency.” Id. at 1180. The

Sheriff’s dispatch received an anonymous call reporting that a loud party at an

apartment had become a fight on the patio. After the dispatch reported a fight in

progress, Clutter arrived at the apartment, where he observed two people simply

standing on the second floor balcony. They responded to Clutter’s knock at the

door and told him there had been a fight, but that the people involved had left the

premises. When Moore came to the door, Clutter asked him to go retrieve his


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identification. While Moore was upstairs, Dunn and Eger arrived. After Moore

returned to the doorway, the officers testified that Moore appeared angry, agitated,

and intoxicated. The officers announced their intent to enter the apartment and did

so. The circumstances the officers confronted when Moore returned to the front

door of his apartment do not reflect the sense of urgency necessary to justify a

warrantless search. According to the officers’ testimony, and as the district court

correctly summarized, “there was no visible or audible chaos ensuing, [and there

was] no evidence of injury.” Doc. 69 at 10.

      We disagree with the officers that this case is like United States v. Holloway,

in which we upheld a warrantless search under the exigent circumstances

exception. 290 F.3d at 1338. In that case, the officers had received multiple 911

dispatch reports of “gunshots and arguing” coming from the plaintiff’s address. Id.

at 1332. When the officers arrived to investigate, they observed two people on the

porch, one of whom refused to comply with the officers’ instructions. Id. The

officers saw “several beer cans strewn about the yard and porch” and “a shotgun

shell on top of the picnic table.” Id. at 1133. The officers then conducted a

warrantless search of the home. Id. In those circumstances, this Court held that

the officers “reasonably believed an emergency situation justified a warrantless

search of the [a]ppellant’s’s home for victims of gunfire,” and thus there had been

no Fourth Amendment violation. Id. at 1138. “The possibility of a gunshot victim


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lying prostrate in the dwelling,” we explained, “created an exigency necessitating

immediate search.” Id.

      Here, unlike in Holloway, the officers received no report of a deadly

weapon, nor did they observe any evidence of a “tumultuous” situation that would

demand their immediate entry. See Brigham City, 547 U.S. at 406. The officers

argue that, as in Holloway, here the officers observed no violent behavior, but the

report of a fight was evidence of violence. But in Holloway, the officers received

multiple reports of gunshots and observed a shotgun shell. Here, there was no

evidence that the fight was ever physical; the dispatch report indicated it was

verbal. But assuming for the sake of argument that the report of a fight on the

patio in this case supported a reasonable belief that there may have been an injury,

after the officers arrived at Moore’s apartment, they found nothing to support that

belief. The officers’ impression that Moore was intoxicated or the fact that he was

angry or argumentative does not create an exigent circumstance. Because here

there were no “indicia of an urgent, ongoing emergency, in which officers have

received emergency reports of an ongoing disturbance, arrived to find a chaotic

scene, and observed violent behavior, or at least evidence of violent behavior,”

Timmann, 741 F.3d at 1179, objectively, they could not have reasonably believed

that someone inside was seriously injured or in need of immediate aid. Thus, the




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warrantless search they conducted violated Moore’s constitutional rights. See id. at

1180-81.

      Having determined the officers violated Moore’s constitutional rights, we

next consider whether those rights were clearly established. “The second qualified

immunity inquiry is, in the context of this case, straightforward . . . .” Skop, 485

F.3d at 1143 (holding that binding precedent clearly established an arrest made

without arguable probable cause violates the Fourth Amendment). Binding

precedent clearly established, at the time of the search of Moore’s home, that a

search without a warrant or exigent circumstances violates the Fourth

Amendment’s prohibition on unreasonable searches and seizures.

B.    State Law Immunity

      We lack jurisdiction to review the denial of summary judgment on Moore’s

state law claims for trespass and invasion of privacy. Pendent appellate

jurisdiction “is limited to questions that are inextricably interwoven with an issue

properly before [this Court].” Harris v. Bd. of Educ. of Atlanta, 105 F.3d 591, 594

(11th Cir. 1997) (internal quotation marks omitted). Moore’s state law claims are

not resolved by our conclusion that the officers lacked exigent circumstances to

enter Moore’s apartment without a warrant because Florida law provides officers

with immunity from suit unless the officers “acted in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard of human rights,


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safety, or property.” Fla. Stat. § 768.28(9)(a). “Because we may resolve the

qualified immunity issue without reaching the merits of the state law claims for

[trespass and invasion of privacy], we lack jurisdiction to reach those claims.”

Valderrama v. Rousseau, 780 F.3d 1108, 1111 n.3 (11th Cir. 2015) (internal

quotation marks omitted).

                              IV.    CONCLUSION

      For these reasons, we affirm in part the district court’s order denying the

officers’ motion for summary judgment. We dismiss the officers’ appeal of

Moore’s state law claims for lack of subject matter jurisdiction.

      AFFIRMED IN PART, DISMISSED IN PART.




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