                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________
                                                                   FILED
                                    No. 10-13820          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                             ________________________           JUNE 14, 2011
                                                                 JOHN LEY
                           D.C. Docket No. 5:09-cv-00248-HL       CLERK


SANDRA ROBERTS,

                                                                           Plaintiff-Appellee,

                                             versus
JASON SPIELMAN,

                                                                        Defendant-Appellant.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                            ________________________

                                       (June 14, 2011)

Before HULL and BLACK, Circuit Judges and HUCK,* District Judge.

PER CURIAM:

       Plaintiff Sandra Roberts brought this suit against Defendant Jason

Spielman, a deputy with the Peach County, Georgia Sheriff’s office, under 42

       *
         Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
U.S.C. § 1983, alleging that Deputy Spielman violated her right to be free from

unreasonable searches and seizures under the Fourth and Fourteenth Amendments

to the United States Constitution. Deputy Spielman moved for summary judgment

based on qualified immunity. The district court concluded that Deputy Spielman

was not entitled to qualified immunity because he was acting outside the scope of

his discretionary authority, and the district court therefore denied Deputy

Spielman’s motion for summary judgment. Deputy Spielman now appeals that

order.1 After oral argument and a thorough review of the record and the parties’

briefs, we reverse the district court’s order denying Deputy Spielman’s motion for

summary judgment on Roberts’s § 1983 claim.

                               I. BACKGROUND FACTS

       “We review de novo the denial of a motion for summary judgment based on

qualified immunity.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir.

2010). Summary judgment is appropriate only if “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “We view the facts in the light most



       1
         We have jurisdiction over this appeal under 28 U.S.C. § 1291 because “a district court's
denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985).

                                                2
favorable to [Roberts], drawing all reasonable inferences in [her] favor.” Bashir v.

Rockdale Cnty., Ga., 445 F.3d 1323, 1324–25 (11th Cir. 2006).

      These are the relevant facts, viewed in the light most favorable to Roberts.

On March 19, 2009, Deputy Spielman responded to a call about a possible suicide

attempt at Roberts’s home. Upon arriving at the home, Deputy Spielman spoke

with Roberts’s former sister-in-law, Tracey Huckabee, who said that she had been

trying to make contact with Roberts for an hour. Huckabee stated that Roberts

lived alone and had a history of suicide attempts. Huckabee told Deputy Spielman

that she feared that Roberts had committed suicide, because Roberts’s truck was

parked in the driveway and Huckabee could hear both televisions on inside the

residence. Huckabee also told Deputy Spielman that Roberts was on medication

for bipolar disorder.

      Deputy Spielman knocked several times on the front door and the bedroom

window. When there was no response, he went to the kitchen door and knocked

again more loudly. He then walked to the back of the home and onto the back

deck, where he knocked on the back door several times. From the back door,

Deputy Spielman heard the television on inside the home. Deputy Spielman

opened the back door by pushing it open a few inches, allowing him to look inside

the home. Roberts, who had been ignoring the knocking, believing it to be

                                         3
Huckabee, heard the back door opening and saw Deputy Spielman’s hair through

the slightly open door. She asked him to identify himself and he stated he was

with the Sheriff’s office. Roberts approached Deputy Spielman, who was still on

the back deck, and told him to “get the f*** out of here” in a forcible way.

Roberts agrees this is what she clearly and forcibly said to Deputy Spielman.

Roberts also does not dispute that she was verbally abusive to Deputy Spielman,

repeatedly calling Deputy Spielman “boy” and yelling “get the f--- out of my

house.” Deputy Spielman told Roberts to go outside and talk to Huckabee.

Roberts responded that she did not want to talk to Huckabee, and that Deputy

Spielman could not make her leave the house.

       When Deputy Spielman told Roberts to calm down and stop calling him

boy, Roberts yelled, “Get the f--- out of my house or I will–.”2 Deputy Spielman

immediately grabbed Roberts’s right arm and escorted her out of the house.




       2
         Deputy Spielman avers that when Roberts said this, she suddenly turned back into the
home and that he became concerned that Roberts might try to get a weapon. Roberts denies
turning back into the home and states that when she made her “or I will–” statement, she meant
that she “was near [her] telephone and was going to call the Sheriff’s Department.” However,
Roberts does not allege that Deputy Spielman knew this. In any event, we do not rely on
Roberts’s turning back into the residence because Roberts disputes it. Rather, we rely on the 911
call, what Huckabee told Deputy Spielman when he arrived and what Roberts says (or does not
dispute) happened after she saw Deputy Spielman.

                                                4
Roberts estimated that from the time Deputy Spielman saw her at the back door

until he grabbed her arm about five minutes elapsed.3

       Deputy Spielman took Roberts across the back deck, into the garage, and

made her sit down on the back steps. At this point, Huckabee also came to the

back of the home. Deputy Spielman explained to Roberts that the reason for his

presence was to perform a welfare check at her home. Roberts yelled profanities

at Deputy Spielman and Huckabee. Eventually Deputy Spielman walked with

Huckabee back around the house to the front driveway, leaving Roberts on the

back steps. Roberts then walked back through the house to the front driveway,

where she told Huckabee to “tear up the Constitution,” because Deputy Spielman

“had proven it means nothing anymore.” Deputy Spielman shouted that he was

“in charge,” and told Roberts to “shut up or be arrested.” Deputy Spielman told

Huckabee that he could not take Roberts into custody for an evaluation because

Roberts “did not verbally threaten her life in [his] presence.” Deputy Spielman

then left Roberts’s home.

                         II. DISCRETIONARY AUTHORITY


       3
         Although Roberts states Deputy Spielman “grabbed” her right arm, she does not allege
any resulting bruises, pain or injuries. She does not make an excessive force claim but an illegal
search and seizure claim under the Fourth Amendment. At no time was Roberts handcuffed,
restrained or placed in a police car. Deputy Spielman was performing a welfare check on
Roberts and did not attempt an arrest.

                                                5
      We first conclude that the district court erred in holding that Deputy

Spielman did not act within his discretionary authority. “[G]overnment officials

performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). “[A] government

official can prove he acted within the scope of his discretionary authority by

showing objective circumstances which would compel the conclusion that his

actions were undertaken pursuant to the performance of his duties and within the

scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)

(quotation marks omitted). “We thus interpreted the term ‘discretionary authority’

to include all actions of a governmental official that (1) ‘were undertaken pursuant

to the performance of his duties,’ and (2) were ‘within the scope of his authority.’”

Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (quoting Rich, 841 F.2d at

1564).

      The facts viewed in the light most favorable to Roberts reveal objective

circumstances which compel us to conclude that Deputy Spielman’s actions were

undertaken pursuant to the performance of his duties and were within the scope of

his authority. First, Deputy Spielman acted pursuant to the performance of his

                                          6
duties. Under Georgia law, a peace officer’s duties include “the protection of

life.” O.C.G.A. § 35-8-2(8)(A). Deputy Spielman’s actions at issue in this case

were all taken pursuant to his check on Roberts’s welfare following a report that

she may have attempted suicide.

      Second, Deputy Spielman’s actions were within the scope of his authority.

The district court determined, and Roberts appears to argue on appeal, that

viewing the facts in the light most favorable to Roberts, Deputy Spielman

exceeded the scope of his authority when he remained on Roberts’s property after

he saw that she was alive and she asked him to leave. We do not agree. Deputy

Spielman acted within his authority in remaining on the property and attempting to

speak with and observe Roberts for a brief period of time to ensure that she had

not attempted, nor was about to attempt, suicide. See Kesinger ex rel. Estate of

Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004) (concluding that “it

is clear that [an off-duty sheriff’s deputy] was acting within the scope of his

discretionary authority when he intervened in [a pedestrian’s] apparent suicide

attempt”).

      Thornton v. City of Macon, 132 F.3d 1395 (11th Cir. 1998), does not aid

Roberts’s case. In that case, Marjorie Mullis, who previously lived with Thornton,

asked the police to go to Thornton’s apartment to help her give her keys to

                                          7
Thornton in return for his giving her mattress in the apartment back to her. A

Macon police officer arrived at Thornton’s and told Thornton he was there to

return the keys and pick up Mullis’s mattress. Thornton was on his porch and told

the officer to leave the premises. Thornton went inside and closed the screen door

behind him. The officer did not leave, and Thornton stood at the screen door and

repeatedly told the officer and Mullis to leave.

      Ultimately, the officer called for back-up and law enforcement officers

forced Thornton to exchange personal property with his ex-roommate Mullis even

though Thornton refused to make the exchange. Id. at 1397-99. We explained

that “Thornton had committed no crime and had not threatened anyone; once he

had asked the officers to leave, their continued presence—and their attempt to

retrieve [his ex-roommate’s] mattress by force—was not pursuant to their official

duties and was outside of their authority.” Id. at 1399. The officers in Thornton

“were no longer maintaining the peace; they were instead merely attempting

forcibly to resolve a civil dispute.” Id. But that is not the situation here. Deputy

Spielman was still acting pursuant to his official duty to protect life, and was

within his authority in carrying out that duty, when he grabbed Roberts and briefly

removed her from the house to speak with and observe her to ensure that she was

not suicidal.

                                          8
 III. VIOLATION OF A CLEARLY ESTABLISHED CONSTITUTIONAL
                          RIGHT

      After an initial inquiry as to whether the defendant was acting in his

discretionary authority when the alleged acts occurred, we consider: (1) “[i]f the

facts, construed in the light most favorable to the plaintiff, show that a

constitutional right has been violated”; and (2) “whether the right violated was

‘clearly established.’” Grider v. City of Auburn, 618 F.3d 1240, 1254 & n.19

(11th Cir. 2010). “Both elements of this test must be satisfied for an official to

lose qualified immunity, and this two-pronged analysis may be done in whatever

order is deemed appropriate for the case.” Id.; see also Pearson v. Callahan, 555

U.S. 223, ___, 129 S. Ct. 808, 815-16 (2009).

      “In determining whether a constitutional right was clearly established at the

time of violation, the relevant, dispositive inquiry is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”

Grider, 618 F.3d at 1266-67 (quotation marks and ellipsis omitted); see also Hope

v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002). We must undertake

this inquiry “in light of the specific context of the case, not as a broad general

proposition.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599 (2004)

(quotation marks omitted).



                                           9
      The Fourth Amendment protects people from unreasonable searches and

seizures. U.S. Const. amend. IV. For Fourth Amendment purposes, a seizure

occurs when an officer, “by means of physical force or show of authority, has in

some way restrained the liberty of a citizen . . . .” Terry v. Ohio, 392 U.S. 1, 19

n.16, 88 S. Ct. 1868, 1879 n.16 (1968). An encounter between a police officer and

a citizen becomes a seizure when “a reasonable person would not feel free to

terminate the encounter.” United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir.

2011) (quotation marks omitted). When an officer stops an individual to ascertain

that person’s mental state (rather than to investigate suspected criminal activity),

the Fourth Amendment requires the officer to have probable cause to believe the

person is dangerous either to himself or to others. See, e.g., Cloaninger ex rel.

Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009) (involving officer’s

“welfare check” at residence after doctor’s 911 call reported possible suicide

attempt); Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997) (involving

officer dispatched to residence after mental health worker reported a suicide

attempt).

      The Fourth Amendment also prohibits warrantless searches of a person’s

home. United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). This

prohibition is not absolute, however. Id. One exception to the warrant

                                          10
requirement “is that the police may enter a private premises and conduct a search

if ‘exigent circumstances’ mandate immediate action.” Id. “[E]mergency

situations involving endangerment to life fall squarely within the exigent

circumstances exception.” Id. at 1337; id. at 1335 (“The most urgent emergency

situation excusing police compliance with the warrant requirement is, of course,

the need to protect or preserve life.”); see also Mincey v. Arizona, 437 U.S. 385,

392, 98 S. Ct. 2408, 2413 (1978)).

      For this exception to apply, the officer must have both exigent

circumstances and probable cause. Holloway, 290 F.3d at 1337. When officers

respond to an emergency, “the probable cause element may be satisfied where

officers reasonably believe a person is in danger.” Id. at 1338. The officer’s

conduct is “evaluated by reference to the circumstances then confronting the

officer, including the need for a prompt assessment of sometimes ambiguous

information concerning potentially serious consequences.” Id. at 1339 (quotation

marks omitted). In addition, the officer’s “warrantless search must be strictly

circumscribed by the exigencies which justify its initiation . . . .” Mincey, 437

U.S. at 393, 98 S. Ct. at 2413 (quotation marks omitted).

      Roberts appears to argue that once Deputy Spielman saw that she was alive,

there was no longer any exigency sufficient to justify his continued presence on

                                         11
her property or his seizure of her person. However, under the circumstances

Deputy Spielman confronted, it was objectively reasonable for him to believe that

Roberts might still be in need of immediate aid even though she was alive. See

Monday, 118 F.3d at 1102 (stating that “a showing of probable cause in the mental

health seizure context requires only a probability or substantial chance of

dangerous behavior, not an actual showing of such behavior.” (quotation marks

omitted)).

      Deputy Spielman was dispatched in response to a 911 call for a possible

suicide attempt. At the residence, Huckabee, the relative who had placed the 911

call, told Deputy Spielman that Roberts’s truck was in the driveway and her

television was on, but Huckabee had been unable to get a response from Roberts

for an hour. Huckabee also explained that Roberts suffered from bipolar disorder

and had a history of suicide attempts. There is nothing in the record to suggest

Deputy Spielman should have doubted the information Huckabee gave him.

      Although Deputy Spielman knocked repeatedly and loudly at several doors

and windows of the residence, Roberts did not respond, prompting Deputy

Spielman to open the door a crack, call out to Roberts and look around. Given

Roberts’s belligerent behavior when Deputy Spielman opened the door and

identified himself, and in light of what Huckabee had told him, Deputy Spielman

                                         12
could reasonably have believed that Roberts posed a danger to herself that

justified his remaining inside the doorway of her home for about five minutes and

then, for safety reasons, briefly removing her from the home while he tried to calm

her down and determine her mental state.

      We stress the limited scope of Deputy Spielman’s entry into the home and

encounter with Roberts. Deputy Spielman opened the door and then stood in the

doorway of Roberts’s home for about five minutes while he spoke with her.

Deputy Spielman then escorted Roberts outside to the back steps of her garage, but

only after she continued yelling and made her ambiguous “or I will–”statement

that a reasonable officer could have interpreted as a threat or at least as further

cause for concern about Roberts’s mental state. Although the record is silent as to

precisely how long Deputy Spielman spoke with Roberts as she sat on the steps, it

does not appear to have been a very long time.

      When Deputy Spielman determined that Roberts was not threatening

suicide, he determined that there was no longer an exigency justifying further

action, and he left the property. We conclude that, under the particular factual

circumstances of this case, Deputy Spielman’s conduct did not violate the Fourth

Amendment, and he is therefore entitled to qualified immunity. Furthermore, even

assuming arguendo a constitutional violation, a reasonable officer in Deputy

                                          13
Spielman’s shoes would not have known that his conduct was unlawful. Roberts

has cited no binding precedent that clearly established that probable cause and

exigent circumstances immediately evaporate once an officer performing a welfare

check for a possibly suicidal person sees that the person is merely alive.

       For these reasons, we REVERSE the district court’s order denying Deputy

Spielman’s motion for summary judgment on Roberts’s § 1983 claim, and we

REMAND this case to the district court for entry of judgment in favor of Jason

Spielman on Roberts’s § 1983 claim and for further proceedings.4

       REVERSED.




       4
         Roberts also brought claims under the Georgia Constitution and state law, but these
claims were not the subject of the parties’ cross-motions for summary judgment, and are not at
issue in this appeal. For this reason, we must remand the case to the district court for further
proceedings.

                                                14
