     Case: 18-60335   Document: 00514914760     Page: 1   Date Filed: 04/12/2019




          IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                 No. 18-60335                       FILED
                                                                April 12, 2019
                                                               Lyle W. Cayce
IKECHUKWU HYGINUS OKORIE, M.D.,                                     Clerk

             Plaintiff - Appellant

v.

VIRGINIA M. CRAWFORD, M.D.; CHARLES D. MILES, M.D.; RICKEY L.
CHANCE, D.O.; CLAUDE D. BRUNSON, M.D.; JOHN C. CLAY, M.D.; S.
RANDALL EASTERLING, M.D.; C. KENNETH LIPPINCOTT, M.D.;
WILLIAM S. MAYO, D.O.; J. ANN REA, M.D.; H. VANN CRAIG, M.D.;
JONATHAN DALTON; LESLIE ROSS,

             Defendants - Appellees



                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Michigan v. Summers, 452 U.S. 692, 705 (1981), allows law enforcement
to detain the occupant of a residence where a criminal search warrant is being
executed. Consistent with the touchstone of the Fourth Amendment, however,
the scope of such detentions must be reasonable. Id. at 705 n.21; Heitschmidt
v. City of Houston, 161 F.3d 834, 838 (5th Cir. 1998).
      We confront a question that courts have rarely had to address in the
nearly four decades since Summers was decided: May the government detain
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                                  No. 18-60335
the owner of a business that is being searched not because of suspected
criminal activity but instead for possible civil violations?
      This question arises from the search of a medical clinic that resulted in
the doctor being detained for three to four hours.          During that time, an
investigator pushed the doctor down, drew his gun multiple times, and limited
the doctor’s movement and access to facilities such as the restroom.              We
conclude that the doctor’s allegations establish a Fourth Amendment violation
based on the intrusiveness of the detention, but that the sparse caselaw in this
area had not clearly established that unlawfulness.               As a result, the
investigator is entitled to qualified immunity.
                                      I.
                                      A.
      Dr. Ikechukwu Okorie is a primary care physician who runs a clinic in
Hattiesburg.    The Mississippi State Board of Medical Licensure certified
Okorie to prescribe opioids and other pain medications. In 2010, the Board
began investigating whether Okorie was overprescribing those substances. It
instructed Okorie to implement policy changes and returned a year later to
check on him. Despite concluding that Okorie was not complying with the
Board’s instructions, it continued to allow Okorie to prescribe opioids. The
following year, the Board again found Okorie was overprescribing opioids and
other controlled substances. This time it revoked his certification.
      Okorie sought recertification in 2014 after completing new pain
management training.       He received a temporary license, but the Board
requested additional information and asked Okorie to appear at its next
meeting to assist in its final determination.
      Before the Board met, a state court judge authorized an administrative
inspection and issued a search warrant. See MISS. CODE § 41-29-157(a)(1); see
also Marshall v. Barlow’s, Inc., 436 U.S. 307, 320–24 (1978) (discussing the
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                                  No. 18-60335
difference between probable cause required for a criminal search warrant and
what is required for an administrative search). The affidavit supporting the
warrant cited probable cause to believe evidence was present in the clinic
related to laws allowing the revocation and denial of licenses to practice
medicine and regulating controlled substances. See MISS. CODE §§ 73-25-29,
73-25-83, 41-29-113 et seq. No criminal sanctions are associated with any of
the cited provisions. The primary evidence the warrant sought was medical
records.
      In evaluating what happened when the warrant was executed, we must
assume Okorie’s allegations to be true as this case is just at the pleading stage.
Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015).
According to his complaint and Rule 7 supplement to that pleading, a large
team made up of the following executed the warrant: five Board investigators,
a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug
Trafficking Agent, and two federal DEA agents. On entering the clinic, Board
investigator Jonathan Dalton brandished his gun and pushed Okorie into his
office. He then served Okorie with the warrant. After reviewing the warrant,
Okorie attempted to leave his office to discuss it with his staff. Dalton stopped
Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put
you down!” Okorie feared for his life. Dalton eventually allowed Okorie to
instruct his staff to fax the warrant to his lawyers and print the requested
patient records. But while Okorie did so, Dalton stood next to him with his
gun drawn.
      Once Okorie briefly spoke with his staff, Dalton brought him back into
his office, where Okorie was detained for the remainder of the search. After
two hours had passed, Okorie asked to go to the bathroom and was told no.
Okorie “plead[ed]” with Dalton, explaining that he would have to urinate
himself if not allowed to use the restroom. At this point, Dalton, “with his gun
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                                       No. 18-60335
drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the
bathroom door open the entire time, even though a female investigator and
other individuals were present. Dalton also instructed Okorie to keep his
hands where Dalton could see them.                   Only when the agents were done
executing the search, three to four hours after it began, was Okorie allowed to
leave the clinic. 1
                                              B.
       Okorie filed this section 1983 lawsuit in federal court alleging violations
of the Fourth Amendment. The complaint names 12 defendants. The district
court dismissed the claims against all of them for various reasons. Only the
claim against investigator Dalton is being appealed. 2
       Dalton filed a motion to dismiss on the pleadings invoking qualified
immunity. See FED. R. CIV. P. 12(c). He argued that the complaint did not
allege a constitutional violation because he had probable cause to detain
Okorie and he did not detain him in an unreasonable manner. After allowing
Okorie to supplement his allegations with a Rule 7 response, see Schultea v.
Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc), the district court granted
the motion and dismissed the claim against Dalton. It held there was no
constitutional violation and ruled in the alternative that any violation would
not be clearly established.
                                           II.

       1  After the search, the Board commenced disciplinary proceedings against Okorie and
found him in violation of Board rules. The Board later charged Okorie with violating the
terms of the first disciplinary proceeding and suspended him for a year. See 739 F. App’x 301
(5th Cir. Oct. 9, 2018).
        2 Among the numerous rulings not being appealed, the district court granted absolute

immunity to the members of the Mississippi Board of Medical Licensure on the grounds that
they were acting in a judicial function in their dealings with Okorie. The court also dismissed
Okorie’s state law claims under the Mississippi Tort Claims Act, holding that he did not
comply with the statutory notice requirements. Finally, the district court dismissed claims
against another Board investigator because Okorie did not sufficiently allege that she was
directly involved in his detention.
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      We first decide whether Okorie alleges a violation of his rights. Pearson
v. Callahan, 555 U.S. 223, 236 (2009) (allowing courts to first address either
the constitutional question or whether qualified immunity is overcome). This
is the third case in the past year to reach our court alleging constitutional
violations in connection with an administrative search of a medial office, see
Barry v. Freshour, 905 F.3d 912 (5th Cir. 2018); Zadeh v. Robinson, 902 F.3d
483 (5th Cir. 2018), so addressing the constitutional issue will provide
guidance for this increasingly common tactic. See Pearson, 555 U.S. at 236
(noting that a need to develop the law may counsel in favor of deciding the
underlying constitutional question before considering the immunity defense).
                                     A.
      Okorie first argues that there was no basis to detain him at all. As
mentioned at the outset, it has long been the case that law enforcement may
detain the occupant of a place where a criminal search warrant seeking
contraband is being executed. Summers, 452 U.S. at 705. Summers is an
exception to the normal Fourth Amendment rule requiring probable cause to
seize a person. Id. at 696–700. But Okorie points to two features of the search
of his clinic that are different from the search in Summers: (1) his warrant was
based on probable cause for civil violations, not criminal ones, and (2) it sought
evidence, not contraband.
      The latter distinction may have helped Okorie at one time. Summers
involved a search for illegal drugs and noted that its rule might not extend to
allowing seizures when police are searching only for evidence. Id. at 705 n.20.
We once took a narrow view of Summers, reading it as “merely hold[ing] that
the police have limited authority to detain the occupant of a house without
probable cause . . . when police are executing a validly executed search warrant
for contraband.” Heitschmidt, 161 F.3d at 838; see also Williams v. Kaufman


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Cty., 352 F.3d 994, 1008 (5th Cir. 2003) (explaining that Heitschmidt limited
Summers to its facts). 3
       But since then the Supreme Court has applied Summers to allow the
seizure of occupants of a residence where officers were searching for
“documents and computer files.” Los Angeles Cty. v. Rettele, 550 U.S. 609, 610–
11, 614 (2007) (per curiam). In cases decided both before and after Rettele, all
but one circuit to address the issue have rejected a contraband/evidence
distinction for the Summers exception. See Archer v. Chisholm, 870 F.3d 603,
610, 618 (7th Cir. 2017) (warrant for documents, emails, and records); Stepnes
v. Ritschel, 663 F.3d 952, 958, 961 (8th Cir. 2011) (warrant for documents);
United States v. Allen, 618 F.3d 404, 405, 409 (3d Cir. 2010) (warrant for
security footage); Unus v. Kane, 565 F.3d 103, 110, 120–21 (4th Cir. 2009)
(warrant for documents); Dawson v. City of Seattle, 435 F.3d 1054, 1058, 1066
(9th Cir. 2006) (warrant to search for rat infestation). 4 What is more, treating
searches for evidence and contraband the same is consistent with the modern
rejection of the “mere evidence” rule that once pervaded Fourth Amendment
doctrine. See generally Warden v. Hayden, 387 U.S. 294 (1967). And the
governmental interests that justified Summers’s exception to the probable
cause requirement—including officer safety and “preventing flight in the event
that incriminating evidence is found,” 452 U.S. at 702 (emphasis added)—are


       3 Heitschmidt actually involved a search for evidence, not contraband. Heitschmidt,
161 F.3d at 839. Although the court noted this, it ultimately held that none of the Summers
factors were supported by legitimate police interests in the case. Id. The court thus did not
need to decide whether Summers applied to searches for evidence.
       4 Only the Tenth Circuit arguably upholds the distinction. But its concern is not with

run-of-the-mill criminal search warrants for evidence, but with searches of a truly innocent
third party, who possesses useful evidence but whose possession of such evidence is not a
crime. And the court takes a broad definition about what constitutes contraband, including
in that category a wide range of nontraditional items that look more like evidence. See, e.g.,
United States v. Ritchie, 35 F.3d 1477, 1483 (10th Cir. 1994). It has not revisited its analysis
post-Rettele. See also Denver Justice and Peace Comm. v. City of Golden, 405 F.3d 923, 931
(10th Cir. 2005) (discussing the scope of Summers and Ritchie).
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                                  No. 18-60335
not necessarily greater in a search for contraband than in a search for evidence.
We thus agree with the prevailing view that Summers applies when the
warrant is seeking evidence.
      But the factors supporting the Summers exception do not weigh as
strongly in the government’s favor when it is executing an administrative
search warrant as compared to a criminal one.         So Okorie’s civil/criminal
distinction has more force.
      One big difference relates to the Supreme Court’s observation that the
existence of a criminal search warrant provides an “objective justification” for
seizing an occupant. Summers, 452 U.S. at 703; see Alexander v. City and Cty.
of S.F., 29 F.3d 1355, 1363 (9th Cir. 1994), abrogated on other grounds, Cty. of
Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017). That justification exists,
Summers explained, because the search warrant required a judicial
determination of “probable cause to believe that someone in the home is
committing a crime,” meaning it is not much of a leap to suspect that an
occupant may be involved in that criminal activity. Summers, 452 U.S. at 703–
04 (explaining that the “connection of an occupant to that home gives the police
officer an easily identifiable and certain basis for determining that suspicion
of criminal activity justifies a detention of that occupant”). In other words, the
level of suspicion surrounding an occupant of a home where a criminal warrant
is being executed is not that far removed from the probable cause that allows
a warrantless arrest. See United States v. Watson, 423 U.S. 411, 423–24 (1976)
(authorizing warrantless arrests based on probable cause).
      This transitive theory of suspicion to detain does not work for a search
warrant seeking evidence only of civil violations. Even if the suspicion of
ongoing regulatory violations at a business can similarly be transferred to the
owner of that business, probable cause (or even certainty) of a civil violation
generally does not allow a warrantless arrest. See Brown v. Texas, 443 U.S.
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47, 51 (1979) (explaining that “‘probable cause’ to believe that the suspect is
involved in criminal activity” is required for an arrest and reasonable suspicion
“that the individual is involved in criminal activity” is required for the lesser
intrusion of a Terry stop) (emphasis added). 5 This fundamental distinction
between criminal and civil violations—that people can always be detained
without a warrant if there is probable cause for violating criminal laws, see
Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (allowing arrest for traffic
violation because it was a misdemeanor) 6—casts significant doubt on
Summers’s application to administrative searches. 7
       Other factors Summers relies on in finding that detention was only an
“incremental intrusion on” the resident’s liberty interest, 452 U.S. at 703, may
not be absent in the administrative context, but they are less pronounced.
Summers observes that detention during execution of a criminal search
warrant is “less intrusive than the search itself” as most occupants would want
to stay and observe as their possessions are searched.                          Id. at 701.



       5  The few cases allowing arrests for civil violations do not recognize general authority
for warrantless arrests. Courts have allowed arrests for civil violations based on bench
warrants issued for civil contempt, Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998), or
analogous court orders, see United States v. Phillips, 834 F.3d 1176 (11th Cir. 2016) (allowing
civil arrest based on writ of bodily attachment judge issued for failure to pay child support,
which under Florida law requires proof by a preponderance of civil contempt). Another “civil”
context in which arrests are allowed involves the statutory authority to make arrests for
immigration violations. See City of El Cenizo v. Texas, 890 F.3d 164, 189 (5th Cir. 2018).
Although removal proceedings fall on the civil side of the docket, the Supreme Court has
repeatedly noted their close relationship with criminal proceedings. See, e.g., Sessions v.
Dimaya, 138 S. Ct. 1204, 1214 (2018) (applying criminal “vagueness” standard to removal
statute).
        6 If the government can make warrantless arrests based on sufficient suspicion of

regulatory violations, Atwater would not have needed to spend pages addressing whether the
pre-founding English common law and founding-era American practice allowed warrantless
arrests for misdemeanors. 532 U.S. at 327–338.
        7 Unlike this case, Dawson v. City of Seattle, 435 F.3d 1054 (9th Cir. 2006), involved a

warrant based on probable cause of not just civil public health violations but also criminal
ones. Id. at 1062. It thus does not address the application of Summers to warrants based
only on suspicion of civil violations.
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                                       No. 18-60335
Administrative inspections are typically a more limited and regular occurrence
than execution of a criminal search warrant, 8 which led one court to conclude
that “citizens may well find it much more intrusive to be detained than to have
their houses inspected for possible noncompliance with health and building
codes.” Alexander, 29 F.3d at 1362. This observation that the stakes are
usually lower for administrative searches than for criminal ones also affects
the likelihood that someone present during the search will hide evidence or
respond with violence. Summers, 452 U.S. at 702–03. Although concerns
about safety and evidence destruction are lessened in the administrative
context, we recognize they still exist. But because most of the reasons the
Supreme Court gave for creating the Summers exception are absent or
minimized when an administrative search is being executed, it is far from clear
that the rule categorically extends to the civil context. 9
                                             B.
       But we need not resolve whether detention incident to execution of an
administrative warrant is allowed as a general matter, because we conclude
that the intrusiveness of this one rendered it unconstitutional. As is true of
other Fourth Amendment seizures such as Terry and traffic stops, the
lawfulness of a detention incident to execution of a warrant is not evaluated
only at its inception; the length and intrusiveness of the detention may render
it unreasonable. Muehler v. Mena, 544 U.S. 93, 100 (2005) (noting that the

       8 The length and intrusiveness of the search of Okorie’s clinic does not fit this
description. But we are addressing whether as a categorical matter Summers applies to
administrative searches.
       9 Two other courts, albeit in unpublished opinions, expressed similar doubts. See

Onofre-Rojas v. Sessions, 2018 WL 4471026, at *1 (9th Cir. Sept. 18, 2018) (per curiam)
(noting that many of the Summers rationales do not hold true for administrative warrants);
Hamilton v. Lokuta, 1993 WL 460784, at *4 (6th Cir. 1993) (per curiam) (holding that the
Summers rationales did not justify a detention pursuant to an administrative search); but
see Ruttenberg v. Jones, 283 F. App’x 121, 136–37 (4th Cir. 2008) (per curiam) (citing Rettele
and Summers for the proposition that it was not per se unreasonable for officers to order
patrons of a club against a wall during a warrantless administrative inspection).
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duration of a detention can impact its lawfulness); Heitschmidt, 161 F.3d at
838–39 (holding that a Summers detention was unreasonably prolonged and
intrusive); cf. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en
banc) (explaining that a traffic stop can be challenged as unlawful at its
inception or as unreasonably “related in scope to the circumstances that
justified the stop” (citing Terry v. Ohio, 392 U.S. 1, 19–20 (1968))).      Also
borrowing from Terry principles, we evaluate whether the scope of a Summers
detention was reasonable by examining if the purposes that allowed the
detention in the first place continued to support the seizure for its duration.
See Muehler, 544 U.S. at 100–01.
      One side of the reasonableness balance is the scope of the detention,
which depends on the detention’s location, length, and degree of intrusiveness.
See Heitschmidt, 161 F.3d at 837–38. The detention of Okorie at his medical
office, in the sight of his staff, is more significant than a detention at home
which, as a private location where the resident is most comfortable, adds “only
minimally to the public stigma associated with the search itself.” Summers,
452 U.S. at 702. That being said, although the detention occurred in a public
office, it was a clinic Okorie owned, thereby perhaps adding only minimally to
the public stigma that would already exist from the search itself. See Daniel
v. Taylor, 808 F.2d 1401, 1404 (11th Cir. 1986) (per curiam). Also, even absent
his detention, Okorie had good reason to stay at the office while the search was
conducted so he could assist with and observe what was occurring. Id.; contrast
Williams v. Kaufman Cty., 352 F.3d 994, 1010 (5th Cir. 2003) (addressing
intrusion on the liberty interest of night club patrons with no personal interest
in the place who were forced to remain in the club for the entirety of the
search). But unlike in any of the cases just cited, Okorie’s clinic was subject
only to an administrative search.       The stigma attached to a regulatory
inspection and search, a more common occurrence that often does not even
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                                      No. 18-60335
require warrants, see Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 (1978); Beck
v. Tex. Bd. of Dental Exam’rs, 204 F.3d 629, 638 (5th Cir. 2000), is substantially
less than the stigma associated with a criminal search. So the incremental
intrusion resulting from Okorie’s public detention is much greater than that
resulting from the Summers detention on both ends of the comparison: The
stigma of the search itself is less and that flowing from the detention in a public
place is more.     Overall, the setting of the search makes Okorie’s detention
more intrusive than the Summers detention.
       Okorie’s detention lasted for three to four hours. In a post-Summers
case, the Supreme Court held that two to three hours of handcuffed detention
during a search was reasonable, but that was an “inherently dangerous” search
for weapons and a gang member.               Muehler, 544 U.S. at 100.            Because
reasonableness is always a matter of context, that holding does not
automatically support an even longer detention related to execution of an
administrative warrant for medical records at a location where there is no hint
of violent activity.     Indeed, we have expressed concern about a four-hour
detention related to a criminal search for evidence of a prostitution ring.
Heitschmidt, 161 F.3d at 838. 10 Although officers typically can detain persons
present for the full length of the search, the “prolonged” detention here, in the
context of the relatively low level of danger attached to searching a medical
clinic, supports a finding of unreasonableness.
       Weighing even more heavily in Okorie’s favor is the method of detention.
This factor was critical to our holding that a seizure was unreasonable when



       10 Heitschmidt was decided before Muehler. Muehler held that law enforcement
interests supported detaining the plaintiff for two to three hours, the full duration of the
search. 544 U.S. at 100. But Muehler still allowed that the “duration of a detention can, of
course, affect” the objective reasonableness of the officer action. Id. And later cases have
continued to look at the duration of the detention as a factor in deciding the objective
reasonableness of the detention. See Rettele, 550 U.S. at 614; Allen, 618 F.3d at 409.
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the detainee was physically pushed onto a car trunk, handcuffed in the street,
then detained in pain without a restroom break for more than four hours. Id.
838. Not all of these features are present here (Okorie was not handcuffed, for
example), but the force applied and displayed against Okorie is a much greater
intrusion on liberty than what happened to the Summers detainee, who was
“merely asked to remain at the home until the search was completed.” Id.
Okorie’s detention involved forceful pushing, with Dalton yelling “if you don’t
sit down I will put you down!” Dalton then drew his gun while escorting Okorie
into the hallway so Okorie could instruct his staff to fax the warrant to his
lawyers and print patient records as requested.          And while Okorie did
eventually get to use the restroom, he had to plead repeatedly to do so, crying
and telling Dalton he was going to urinate himself. On his way to the restroom,
Okorie was escorted by Dalton with his “gun drawn,” required to keep his
hands visible, and forced to leave the door open the entire time, even though
there were many people nearby. Brandishing a gun during a visit to the
restroom—long after the clinic was secured—is a far cry from ordering a
resident to stay in the house while a search is completed.
      Against these substantial intrusions on Okorie’s liberty we consider the
government’s interest in detaining him in this manner throughout the search.
Muehler, 544 U.S. at 98, 100 (recognizing that detention prevents flight and
evidence destruction, protects officer safety, and expedites the search). For
some of the reasons we have already discussed in considering whether even an
initial detention is allowed in connection with an administrative search, the
law enforcement interest is not as great as it is with searches for evidence of
crimes. For starters, it is hard to imagine that a concern about flight is in play
when it comes to a search for violations of state medical regulations. Jail time
is what people typically flee from. Similarly, if not quite eliminated, the threat
of evidence destruction is reduced for someone whose business is subjected to
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                                   No. 18-60335
an administrative search as compared to someone whose home is being
searched for evidence that may end up landing the person in prison. We agree
with the district court that there was still some basis to be concerned that
Okorie might interfere with the search for documents and potential interviews
of witnesses—his career was at stake even if jail time was not—but that could
have been prevented with less intrusive measures.
      Even more damaging for Dalton is the lack of any indication that Okorie
posed a safety threat to officers, especially after the office was initially secured.
See New York v. Class, 475 U.S. 106, 117 (1986) (“When the officer’s safety is
less directly served by the detention, something more than objectively
justifiable suspicion is necessary to justify the intrusion if the balance is to tip
in favor of the legality of the governmental intrusion.”). Okorie did not have a
violent background, had no ties to a violent organization, and was not accused
of committing a violent crime (or any crime for that matter). See Heitschmidt,
161 F.3d at 838. Though law enforcement has understandable safety concerns
when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195
(2013) (noting that Summers recognizes a need to “secure the premises” and
for officers to take “command of the situation”), that would not seem to support
hours-long detention of nonviolent individuals present at an administrative
search. Yet Dalton allegedly drew his gun while accompanying Okorie and
made him keep his hands visible at all times, even two hours into the
detention. By this point, concerns about safety did not justify such intrusive
measures. And with nine agents present in the office to execute the search,
the need for such an intrusive detention was even lower.                   Compare
Heitschmidt, 161 F.3d at 839 (noting that, with ten to twelve officers on the
scene, the plaintiff could have been effectively restrained in a far less intrusive
manner), with Muehler, 544 U.S. at 100 (noting that the case involved the


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                                   No. 18-60335
detention of four people suspected of being dangerous by two officers, meaning
governmental interests in a forceful detention were at their maximum).
      The last of the government’s interests does weigh in favor of Dalton,
though only mildly so. Detaining Okorie could help facilitate the search, as
investigators relied on him to print patient records for review. But again, what
matters is not just the detention, but the way a detention is carried out. See
Heitschmidt, 161 F.3d at 839. Nothing indicates Okorie would have been
uncooperative had he not been detained, and certainly nothing indicates that
a drawn gun was necessary to keep Okorie restrained.
      Balancing the relatively minor benefits to law enforcement of this
detention against the serious intrusions it imposed on Okorie’s liberty, the
allegations establish an unreasonable seizure. Going forward, an hours-long
detention of a person during an administrative search of a medical clinic or
similar establishment, during which a gun is drawn, will be unlawful absent
heightened security concerns.
                                          III.
      But looking backward, the law in this undeveloped area was not clear
enough when Dalton detained Okorie so that “any reasonable official in the
defendant’s shoes would have understood that he was violating” the Fourth
Amendment. Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). Dalton thus
has a qualified immunity defense.
      We have previously acknowledged that the limits of Summers are not
well defined. Williams, 352 F.3d at 1011–12. Not many cases in our circuit
have addressed when a Summers detention becomes unreasonably intrusive.
Heitschmidt is the only one that holds a detention-incident-to-search
unconstitutional. 11    161 F.3d at 839.          And it does not place the

      11 Nor could we find such cases in other circuits that would establish a robust
consensus that the detention in this case was unreasonable.
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                                 No. 18-60335
unconstitutionality of Okorie’s detention “beyond debate” because Okorie was
not painfully detained in handcuffs during his detention as Heitschmidt was
for four-and-a-half hours. Plumhoff, 572 U.S. at 779. That was a, if not the,
critical factor in Heitschmidt’s finding the detention unreasonable. 161 F.3d
at 838–39.   Another unreasonable aspect of the Heitschmidt detention—
officers never let the plaintiff visit the bathroom—is absent here. Because this
detention was less intrusive than the one in Heitschmidt, that case alone does
not establish that the “violative nature of this particular conduct is clearly
established.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
      The only feature that arguably makes Okorie’s claim a stronger one than
Heitschmidt’s is that this detention was incident to an administrative seizure.
As we have discussed, that at a minimum affects the balancing of Summers’s
interests in analyzing the intrusiveness of a detention even if it does not
outright eliminate the government’s right to detain without probable cause.
But we have never considered the question, and only a few other courts have.
The dearth of caselaw on this question might indicate the government rarely
detains people while executing administrative searches, a fact that would be
consistent with Okorie’s view of the Fourth Amendment. The consequence,
though, is that Okorie is unable to point to caselaw clearly establishing the
unlawfulness of this type of detention. As a result, qualified immunity defeats
Okorie’s claim. al-Kidd, 563 U.S. at 741.
                                        ***
      The judgment of the district court is AFFIRMED.




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