United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 12-1931
     ___________________________

           Charles Marc Mitchell

    lllllllllllllllllllll Plaintiff - Appellee

                        v.

                 Josh Shearrer

   lllllllllllllllllllll Defendant - Appellant

 Eric Spiker; Clifton Bone; Matt Richardet

        lllllllllllllllllllll Defendants
     ___________________________

             No. 12-2058
     ___________________________

           Charles Marc Mitchell

    lllllllllllllllllllll Plaintiff - Appellant

                        v.

                 Josh Shearrer

         lllllllllllllllllllll Defendant

         Eric Spiker; Clifton Bone

  lllllllllllllllllllll Defendants - Appellees
                                    Matt Richardet

                              lllllllllllllllllllll Defendant
                                      ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                            Submitted: January 15, 2013
                             Filed: September 10, 2013
                                   ____________

Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
                              ____________

WOLLMAN, Circuit Judge.

       Farmington, Missouri, Police Officer Joshua Shearrer arrested Charles Mitchell
in the doorway of his home, with the assistance of Officers Erik Spiker and Clifton
Bone. Mitchell filed this action under 42 U.S.C. § 1983, alleging that the officers
violated his constitutional rights by arresting him in his home without first obtaining
a warrant to do so. The district court1 granted the defendants’ motion for summary
judgment based upon qualified immunity as to Spiker and Bone, but denied qualified
immunity as to Shearrer.2 We affirm the denial of qualified immunity as to Shearrer,
and we dismiss for lack of jurisdiction Mitchell’s challenge to the grant of qualified
immunity as to Spiker and Bone.



      1
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
      2
        Jailer Matt Richardet did not appeal from the denial of qualified immunity on
certain claims relating to the length of Mitchell’s detention.

                                           -2-
                                         I.

       During the evening of October 21, 2009, Mitchell allowed grass clippings and
leaves from his lawn to be cast upon the street in front of his house, in violation of
Farmington Municipal Code § 210.750. After the police department received a
complaint about the clippings and leaves, Officer Shearrer went to Mitchell’s
residence to investigate. To arrive at Mitchell’s front door, Shearrer climbed two
steps and stood on the front porch. A glass storm door opens onto the front porch,
with the door handle on the right, and a wooden door opens into the house, with the
door handle also on the right. There is no peep hole on the inside door.

       Just before 8:00 p.m., Shearrer either knocked on the door or rang the doorbell
at Mitchell’s residence. Mitchell turned on his porch light and opened the wooden
door, not knowing who was there. After Mitchell opened the door, he saw Shearrer
in uniform, holding a flashlight. Shearrer held open the storm door and identified
himself as a Farmington police officer.

       According to Mitchell, Shearrer asked him to come outside so that Shearrer
could show him the clippings and leaves in the street. Mitchell replied, “I’m not
coming out. I’m going to bed.” Shearrer informed him that he had received a
complaint about the clippings, whereupon Mitchell admitted that he had mowed his
lawn and that he had “been doing it this way for fifteen years.” As Mitchell began to
close the wooden door, Shearrer stuck his foot into the doorway, preventing the door
from closing. Shearrer repeated his request that Mitchell come outside, to which
Mitchell responded, “I’m not coming out there. I’m going to bed.” With his foot in
the doorway, Shearrer asked for identification, to which Mitchell responded, “If you
are not arresting me, I am going to bed.”

     Soon thereafter, Officers Spiker and Bone arrived in separate squad cars.
Mitchell testified that all three officers “tried to remove me from my door.” The

                                         -3-
officers pulled Mitchell’s left arm, and he braced himself. At his deposition, Mitchell
explained:

      Q.     At this point is it fair to say you’re standing in your doorway?
      A.     I’m still inside the house.
      Q.     Is any part of you inside the actual doorframe itself?
      A.     Everything but my left arm is still inside the house.

As the officers tugged Mitchell’s arm a second time, he grabbed the woodwork on the
inside of the door with his right hand. The door pressed against his chest, leaving a
mark. After Mitchell stopped resisting, he was pulled onto the porch, forced to the
ground, and handcuffed. According to Mitchell, the officers then told him that he was
under arrest.

       Shearrer had a similar recollection of the encounter. Shearrer believed that
Mitchell “display[ed] a hostile attitude” and “posed [a] higher than usual threat due
to what [Shearrer had] perceived as his aggressive and hostile tone and manner.”
Shearrer testified that he had repeatedly asked Mitchell to step onto the porch, but
Mitchell refused to do so. When Mitchell began closing the door, Shearrer “placed
[his] foot in the threshold of the doorway, preventing the door from fully closing.”
Shearrer explained that when Mitchell thereafter refused Shearrer’s request to step
outside, Shearrer informed Mitchell that he was under arrest and then reached for
Mitchell’s arm or wrist as Mitchell tried to shut the door. Shearrer described the
struggle as “a tugging and tussling match in which [Shearrer] was trying,
unsuccessfully, to get Mr. Mitchell out of the doorway and to get his hands behind his
back to handcuff him.” Officers Spiker and Bone arrived during the scuffle and
assisted Shearrer in subduing and handcuffing Mitchell. Shearrer ultimately issued
citations to Mitchell for dispersing debris into a public street or sewer, refusing the
lawful command of a police officer, and resisting arrest.




                                         -4-
       Shearrer appeals from the denial of his motion for qualified immunity. Mitchell
cross appeals from the grant of qualified immunity to Spiker and Bone.

                                          II.

       We first address the scope of our jurisdiction. Title 28, United States Code,
section 1291 provides that federal courts of appeals “shall have jurisdiction of appeals
from all final decisions of the district courts[.]” Under the collateral order doctrine,
“[w]e have jurisdiction to consider an interlocutory appeal of an order denying
qualified immunity to the extent the appeal seeks review of ‘purely legal
determinations made by the district court.’” Sherbrooke v. City of Pelican Rapids,
513 F.3d 809, 813 (8th Cir. 2008) (quoting Wilson v. Lawrence Cnty., Mo., 260 F.3d
946, 951 (8th Cir. 2001)). Accordingly, we have jurisdiction to consider whether the
facts, taken in the light most favorable to Mitchell, support a finding that Shearrer
violated Mitchell’s clearly established constitutional rights.

       We do not have jurisdiction, however, to consider Mitchell’s appeal from the
grant of summary judgment in favor of Spiker and Bone. The district court has not
issued a final decision, and “[t]he collateral order doctrine does not apply . . . when
a party complains that the district court should not have granted summary judgment
based on qualified immunity.” Coleman v. Parkman, 349 F.3d 534, 537 (8th Cir.
2003) (emphasis omitted). Mitchell contends that his cross appeal falls within our
pendent appellate jurisdiction because resolution of Shearrer’s appeal necessarily will
resolve the cross appeal. We disagree. To decide the appeal, we must determine
whether there exists a genuine issue of material fact that Shearrer violated Mitchell’s
clearly established constitutional rights when he reached across the threshold and
placed Mitchell under arrest. The cross appeal, however, presents a different question
because Spiker and Bone merely assisted Shearrer in subduing Mitchell. There is no
evidence to suggest that Spiker and Bone were involved in the decision to arrest
Mitchell or that they knew or should have known that the seizure was unlawful.

                                          -5-
Accordingly, the grant of summary judgment to Spiker and Bone is not inextricably
intertwined with the denial of summary judgment as to Shearrer. See Langford v.
Norris, 614 F.3d 445, 458 (8th Cir. 2010) (explaining that “[a] pendent appellate claim
can be regarded as inextricably intertwined with a properly reviewable claim on
collateral appeal only if the pendent claim is coterminous with, or subsumed in, the
claim before the court on interlocutory appeal”) (alteration in original) (quoting
Kincade v. City of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995)). We thus
dismiss the cross appeal for lack of jurisdiction.

                                            III.

       Qualified immunity shields government officials from liability in a § 1983
action unless the official’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known. Hope v. Pelzer, 536
U.S. 730, 739 (2002); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We review de
novo a district court’s decision to grant or deny summary judgment on the basis of
qualified immunity. Santiago v. Blair, 707 F.3d 984, 989 (8th Cir. 2013). We view
the facts in the light most favorable to the plaintiff, accepting as true the facts that the
district court found were adequately supported, as well as the facts the district court
likely assumed. Id.

       Qualified immunity involves the following two-step inquiry: (1) whether the
facts shown by the plaintiff make out a violation of a constitutional or statutory right,
and (2) whether that right was clearly established at the time of the defendant’s
alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (holding that courts may exercise their discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first).




                                            -6-
                                         A.

       Our initial inquiry is whether the facts alleged support Mitchell’s contention
that Shearrer violated his Fourth Amendment right to be free from unreasonable
seizures when Shearrer arrested him in the doorway of his home. The Supreme Court
has said, “It is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable.” Payton v. New
York, 445 U.S. 573, 586 (1980) (internal quotation marks omitted). The warrantless
arrest of an individual in a public place upon probable cause, however, does not
violate the Fourth Amendment. United States v. Watson, 423 U.S. 411, 423-24
(1976). It is undisputed that although Shearrer did not have an arrest warrant,
probable cause existed to arrest Mitchell. Accordingly, viewing the facts in the light
most favorable to Mitchell, we must determine whether Mitchell was arrested in his
home or in a public place.

       In United States v. Santana, the Supreme Court held that the defendant was
located in a public place when the police first sought to arrest her and thus was not
entitled to Fourth Amendment protection. 427 U.S. 38, 43 (1976). Santana was
standing at the threshold of her home when law enforcement officers arrived,
following a controlled buy of heroin. Id. at 40. Santana stood “directly in the
doorway—one step forward would have put her outside, one step backward would
have put her in the vestibule of her residence.” Id. at n.1. When the officers exited
their vehicle and shouted “police,” Santana retreated into her home, with the officers
in pursuit. Id. at 40. Santana was apprehended shortly thereafter in the vestibule of
her home. Id. In concluding that the threshold constituted a public place, the Court
wrote, “[Santana] was not in an area where she had any expectation of privacy. . . .
She 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.” Id. at
42.



                                         -7-
       We considered Santana in Duncan v. Storie and concluded that it would be
“unwise to become preoccupied with the exact location of the individual in relation
to the doorway.” 869 F.2d 1100, 1102 (8th Cir. 1989). Instead, “the crucial issues
involve the individual’s reasonable expectation of privacy and whether that individual
came to the doorway voluntarily.” Id. According to the plaintiff in Duncan, he had
opened his front door to meet two law enforcement officers as they approached his
home. Id. at 1101. When Duncan ascertained that the officers had come to arrest him,
he stepped farther back into his home and attempted to close the door, but the officers
“prevented him from doing so and pulled him out of his home.” Id. We held that
under the Duncan’s version of the facts, “it would be impossible to hold as a matter
of law that [Duncan] voluntarily placed himself in a public place and willingly
relinquished the expectation of privacy that he is entitled to when he is within his
home.” Id. at 1103.

       Shearrer contends that Duncan is distinguishable because Mitchell “opened the
door and stood in the doorway wholly voluntarily[,]” Appellant’s Br. 19, whereas the
law enforcement officers in Duncan had “duped that plaintiff into opening the door[,]”
Reply Br. 9. We see no meaningful distinction between the facts of how the two
plaintiffs came to stand in their doorways. Mitchell opened his home’s interior door
in response to a knock, without knowing who was standing on his porch. Duncan saw
the officers approaching his home and opened the door. As far as we can tell, Duncan
opened the door under the mistaken impression that the officers had come to retrieve
a report.3 Both Mitchell and Duncan thus initially came to stand in their doorways

      3
        Shearrer misstated the facts of Duncan when he argued that Duncan “at first
thought the officers were there to deliver a report to him which a feuding fellow law-
enforcement officer had indicated he would have delivered (thus creating an inference
that he’d been duped into opening his door).” Appellant’s Br. 19. According to the
facts recounted in the opinion, Duncan tried to hand the officers a report he had
written, 869 F.2d at 1101 & n.2, 1103, and there is no indication that Duncan and the
arresting officer previously had discussed meeting at Duncan’s home, id. at 1101.


                                         -8-
voluntarily, without coercion or deceit by the law enforcement officers. See Duncan,
869 F.2d at 1102 (citing cases that hold that when an officer compels or deceives an
individual to open the doorway to his home, the individual does not voluntarily expose
himself to a warrantless arrest). When they attempted to close their doors, however,
Mitchell and Duncan were physically stopped from doing so and were thereafter
pulled out of their homes and placed under arrest.

       Shearrer argues that we must determine whether Mitchell stood in a public
place when probable cause arose, but Santana teaches that the relevant inquiry is
whether the arrestee was in a public place “when the police first sought to arrest [the
individual.]” 427 U.S. at 42. Viewing the facts in the light most favorable to
Mitchell, Shearrer first sought to arrest Mitchell after he tried to close the interior
door. As in Duncan, a jury could find that Mitchell was within his home—standing
far enough away from the threshold to allow the interior door to swing mostly shut
and maintaining a reasonable expectation of privacy—when Shearrer began to
effectuate the arrest. Duncan, 869 F.2d at 1103 (“A jury could find that Duncan’s
attempt to retreat, much like the suspect’s retreat in Santana, placed him firmly inside
his home and the officers would be required to demonstrate exigent circumstances.”
(footnote omitted)). Unlike Santana, who “was as exposed to public view, speech,
hearing, and touch as if she had been standing completely outside her house[,]”
Mitchell testified that he was standing inside his home, where the Constitution affords
him the greatest measure of privacy. See Florida v. Jardines, 133 S. Ct. 1409, 1414
(2013) (“[W]hen it comes to the Fourth Amendment, the home is first among equals.
At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own
home and there be free from unreasonable governmental intrusion.’” (quoting
Silverman v. United States, 365 U.S. 505, 511 (1961))). Mitchell has thus set forth
sufficient facts to show a violation of his Fourth Amendment right to be free from
unreasonable searches and seizures.




                                          -9-
                                            B.

       Our second inquiry in considering the denial of qualified immunity is whether
the right violated was clearly established. Whether the facts alleged support such a
claim is a legal question for the court to decide. Kahle v. Leonard, 477 F.3d 544, 549
(8th Cir. 2007). A right is clearly established if its contours are “sufficiently clear that
a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). The relevant, dispositive inquiry
is “whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Saucier, 533 U.S. at 202.

        The Fourth Amendment requires that all searches and seizures be reasonable.
It has long been established that warrantless searches and seizures inside a home are
presumptively unreasonable. Guite, 147 F.3d at 750 (“It is clearly established that the
Fourth Amendment prohibits a warrantless entry into a suspect’s home to make a
routine felony arrest absent consent or exigent circumstances.”); see also Welsh v.
Wisconsin, 466 U.S. 740, 750 (1984) (“Before agents of the government may invade
the sanctity of the home, the burden is on the government to demonstrate exigent
circumstances that overcome the presumption of unreasonableness that attaches to all
warrantless home entries.”). Duncan made clear that in the absence of exigent
circumstances, an officer cannot reach over the threshold and into a person’s home to
forcibly effectuate a warrantless arrest. 869 F.2d at 1103 (“Duncan’s version of the
arrest asserts violations of clearly established constitutional rights[.]”). Accordingly,
a reasonable officer would have known that at the time Mitchell tried to close the
door, he stood within his home and thus could not be pulled therefrom and placed
under arrest in the absence of exigent circumstances.

      Shearrer argues that the law was clearly established that “[a] doorway opened
in response to a mere knock . . . is a public place for purposes of the [Fourth]



                                           -10-
Amendment.” Reply Br. 7. As set forth above, we consider whether the door was
opened voluntarily, but Santana established that the constitutional inquiry begins with
whether the arrestee was located in a public place “when the police first sought to
arrest [the individual.]” 427 U.S. at 42; see also Duncan, 869 F.2d at 1102 (rejecting
the officers’ argument “that under the Santana decision an officer might reasonably
believe that Duncan’s appearance at the door constituted entrance into a public
place”).

       We also find unpersuasive Shearrer’s argument that Dailey v. Lyles held “that
Duncan does not clearly establish the law as Mr. Mitchell asserts it[.]” Reply Br. 8
(citing Dailey v. Lyles, 785 F. Supp. 812 (W.D. Mo. 1992), aff’d without opinion, 993
F.2d 175 (8th Cir. 1993)). The district court in Dailey distinguished the facts of its
case with those of Duncan, noting that unlike Duncan, “Dailey knew immediately of
[the officer’s] intention to arrest him. He was not dragged out of his residence by [the
officer]. . . . When Dailey realized who was at the door he did not immediately
attempt to shut the door on [the officer], nor was he prevented from closing the door.”
Dailey, 785 F. Supp. at 821. The district court also found that Dailey had a reduced
expectation of privacy because “he was standing in the doorway of the address he
used as both his residence and his business” and that, at the time of the arrest, Dailey
“had the door open three feet wide.” Id. Unlike the arrest in Dailey, the facts
pertaining to Shearrer’s seizure of Mitchell are not materially distinguishable from the
officers’ seizure of Duncan, as we have set forth in detail above. Moreover, Duncan
was decided after Dailey had been arrested and thus the district court concluded that
the officer in its case “cannot be required to have anticipated [Duncan’s] holding.”
Dailey, 785 F. Supp at 821 n.14.




                                         -11-
                                         IV.

       We affirm the district court’s order denying qualified immunity as to Shearrer4
and dismiss for lack of jurisdiction Mitchell’s cross appeal challenging the grant of
qualified immunity as to Spiker and Bone.
                       ______________________________




      4
        Shearrer argues that Mitchell is not entitled to anything more than nominal
damages, if he succeeds on his claim for unlawful arrest. We do not address this
argument on interlocutory appeal. See Langford, 614 F.3d at 457-58. Nor do we
consider Shearrer’s argument first raised in his reply brief that he is entitled to
qualified immunity because the seizure was a de minimis intrusion on Mitchell’s
constitutional rights. See Fed. R. App. P. 28(a)(9).


                                        -12-
