                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0312p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                              Plaintiff-Appellant, -
 CLIFFORD CUMMINGS, JR.,
                                                      -
                                                      -
                                                      -
                                                          No. 03-3259
           v.
                                                      ,
                                                       >
 CITY OF AKRON; RODNEY SHERMAN; and HOWARD            -
                                                      -
                            Defendants-Appellees. -
 VAUGHN, JR.,

                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                   No. 02-00410—James S. Gallas, Magistrate Judge.
                                      Submitted: September 16, 2004
                                     Decided and Filed: July 22, 2005
            Before: SUHRHEINRICH and CLAY, Circuit Judges; NIXON, District Judge.*
                                             _________________
                                                  COUNSEL
ON BRIEF: Gary H. Levine, Cleveland, Ohio, for Appellant. John C. Reece, Patricia A. Rubright,
CITY OF AKRON, DEPARTMENT OF LAW, Akron, Ohio, for Appellees.
    CLAY, J., delivered the opinion of the court, in which NIXON, D. J., joined.
SUHRHEINRICH, J. (pp. 10-14), delivered a separate dissenting opinion.
                                             _________________
                                                 OPINION
                                             _________________
        CLAY, Circuit Judge. Plaintiff Clifford Cummings, Jr. appeals from the district court’s grant
of summary judgment to Defendants City of Akron, Rodney Sherman, and Howard Vaughn, Jr., in
this civil rights action brought pursuant to 42 U.S.C. § 1983, alleging violations of Cummings’
Fourth Amendment rights to be free from unreasonable seizure and excessive force. For the reasons
that follow, we AFFIRM the grant of summary judgment to the City of Akron, as well as the
dismissal of Cummings’ excessive force claim against all Defendants. However, we REVERSE
the grant of summary judgment to Sherman and Vaughn on Cummings’ claims of unreasonable

        *
          The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.


                                                         1
No. 03-3259            Cummings v. City of Akron, et al.                                          Page 2


seizure and illegal entry under the Fourth Amendment, and REMAND for further proceedings
consistent with this opinion.
                                        I.   BACKGROUND
        A.      Underlying Facts and State Court Proceedings
         The following material facts are not in dispute. On March 20, 2001, Defendants Sherman
and Vaughn, both Akron police officers, were called to investigate a domestic disturbance call at
1115 Peerless Avenue. The alleged victim informed the officers that the alleged perpetrator, her
boyfriend, Carl Bromback, was at 1125 Peerless Avenue, a neighboring house. Sherman and
Vaughn went to 1125, which was the home of Plaintiff Cummings, to investigate. Sherman opened
the outside screen door, and knocked on the inside entry door. Cummings came to a window from
inside the home, and asked the officers what they wanted; Sherman requested that Cummings come
to the front door. Cummings came to the front door and partially opened it, and spoke briefly with
the officers. During their conversation, Sherman placed one of his feet inside Cummings’ doorway,
while Vaughn stood directly behind him. Sherman asked Cummings whether Bromback was inside
the residence, to which Cummings responded that he was not. Cummings also denied Sherman’s
request to come inside the house.
        While the officers were speaking with Cummings, Sherman detected the odor of marijuana
emanating from inside Cummings’ house. After inquiring about Bromback, Sherman asked
Cummings “what about the weed?,” and Cummings immediately attempted to close his front door.
Sherman’s foot, however, was still inside the doorway, and Cummings was unable to shut the door.
At that point, Sherman and Vaughn both pushed the door open, and entered Cummings’ home.
        After Sherman and Vaughn gained entry into Cummings’ house, a struggle ensued. The
officers attempted to arrest Cummings, but he resisted, running out onto his front porch. During the
struggle, Sherman and Vaughn struck Cummings with their fists and batons, and sprayed him with
pepper spray. A third officer arrived on the scene, and used a Taser gun on Cummings. Cummings
was finally subdued, handcuffed, and taken into police custody. After securing Cummings, the
officers re-entered his home and seized marijuana and firearms.
        Cummings was charged in the Summit County Court of Common Pleas with two counts of
assaulting a police officer, both felonies, as well as resisting arrest, illegal cultivation of marijuana,
possession of marijuana, and obstructing official business. Cummings pleaded not guilty to all
charges, and filed a motion to suppress evidence. The trial court granted Cummings’ motion to
suppress, and the Ohio Court of Appeals affirmed. See State v. Cummings, No. 20609, 2002 WL
57979 (Ohio Ct. App. Jan. 16, 2002). Before the Ohio Court of Appeals, the State argued that
Sherman and Vaughn were justified in entering Cummings’ home either because he consented, or
because there were exigent circumstances due to the officers’ hot pursuit of a fleeing felon. Id. at
*3-6. The State’s hot pursuit theory rested on the argument that at the point when Cummings shut
the door on Sherman’s foot, he committed a felony assault, and the officers were justified in entering
Cummings’ house to arrest him. Id. at *5. The state did not contend at any point in the proceedings
“that any exigent circumstances except ‘hot pursuit’ justified the officers’ warrantless entry of
Cummings’ home.” Id. at *4, n.2. The Ohio Court of Appeals rejected both the State’s consent
argument and its exigent circumstances due to hot pursuit theory, concluding that the officers’ entry
into Cummings’ home was unlawful, and therefore any evidence obtained as a result of that entry
was properly suppressed. Id. at *6.
       On remand back to the trial court after the Ohio Court of Appeals’ rejection of the State’s
suppression arguments, Cummings pleaded no contest to a reduced charge of misdemeanor assault
No. 03-3259                Cummings v. City of Akron, et al.                                                       Page 3


on Officer Vaughn, and all other charges against him were dropped.1 He was sentenced to thirty
days in jail on the assault charge, with credit for time served.
         B.        The Instant Lawsuit and Claims Presented on Appeal
        Before the trial court accepted his plea and entered judgment on remand, Cummings filed
the instant lawsuit in federal district court. The parties consented to have the suit heard by a
magistrate judge, and following discovery, the magistrate granted Defendants’ motion for summary
judgment. Specifically, the magistrate judge concluded that Heck v. Humphrey, 512 U.S. 477
(1994), barred all of Cummings’ federal constitutional   claims, and further, that Defendants were
entitled to qualified immunity on those claims.2
        On appeal, Cummings argues that the magistrate judge erred in rejecting his federal claims.
The pleadings below, the magistrate judge’s decision, and the parties’ appellate briefs are less than
clear in their treatment of the issues presented for review. Cummings’ complaint contains a single
federal constitutional claim, labeled “Count III - Deprivation of Civil Rights.” The substance of this
claim, as it appears in the complaint, is that “By seizing, beating, restraining and/or committing the
actions hereinbefore described, Defendants deprived Plaintiff of his liberty interests under the Due
Process clause of the Fourteenth Amendment to the United States Constitution and in violation of
42 U.S.C. § 1983.” However, statements made by both Cummings’ counsel and Defendants’
counsel during Cummings’ deposition demonstrate that both sides understood Cummings’ suit to
encompass Fourth Amendment claims for “unlawful entry” and “excessive use of force.”
(Cummings Dep. at 116, J.A. at 109.) When Defendants moved for summary judgment, it is clear
from the legal memoranda submitted to the district court that they understood that Cummings was
suing for the officers’ allegedly illegal seizure of his person, allegedly unlawful entry into his home,
and alleged use of excessive force, all violations of the Fourth Amendment. However, the
magistrate judge only addressed the seizure of Cummings’       person and the officers’ use of excessive
force, concluding that both claims are barred by Heck.3 The magistrate judge went on to state that:
         The Court realizes that the defendants seek summary judgment on whether or not
         there was an unlawful warrantless entry into Cummings’ home, but this allegation
         was not raised in the counts recited in the complaint, and this Court sees no need to
         expand upon issues which were not raised.
        On appeal, Defendants cite to the magistrate judge’s statement and argue that this Court
should not entertain on appeal Cummings’ claim for unlawful entry. We disagree. As an initial
matter, the magistrate judge’s decision not to address the claim is irrelevant to the question of


         1
           Contrary to the dissent’s understanding, it was Sherman, and not Vaughn, who placed his foot in Cummings’
door. Cummings pleaded no contest to assaulting Vaughn and Vaughn alone; thus the dissent’s out-of-context quotation
of our later discussion of whether Cummings’ act of shutting the door on Sherman’s foot could have constituted an
assault under Ohio law is entirely irrelevant to the assault he actually pleaded no contest to. See note 4, infra.
         2
         Cummings also had several state law claims, over which the magistrate judge declined to exercise
supplemental jurisdiction, and dismissed without prejudice.
         3
           Incidentally, Defendants did not raise Heck in their motion for summary judgment. We have not explicitly
held whether Heck constitutes an affirmative defense, although at least one of our sister circuits has found that defendants
may waive Heck arguments by failing to make them before the district court. See Kramer v. Village of North Fond du
Lac, 384 F.3d 856, 862 (7th Cir. 2004); but see Manthey v. Kessler, 79 Fed. Appx. 153, 153-54 (6th Cir. 2003)
(unpublished decision) (affirming without analysis district court’s sua sponte finding that Heck barred the plaintiff’s
claims); Gil v. City of New York, 32 Fed. Appx. 615, 616 (2d Cir. 2002) (unpublished decision) (same). In any event,
Plaintiff has not argued on appeal that Heck constitutes an affirmative defense; thus it is unnecessary for this Court to
make any such finding.
No. 03-3259           Cummings v. City of Akron, et al.                                        Page 4


whether this Court may address it on appeal. We apply a “course of the proceedings” test to
determine whether defendants in a § 1983 action have received notice of the plaintiff’s claims where
the complaint is ambiguous. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en
banc) (holding that failure to explicitly state in complaint whether a defendant is being sued in his
or her individual capacity “is not fatal if the course of the proceedings otherwise indicate that the
defendant received sufficient notice”). Here, regardless of the fact that Cummings failed to raise
unlawful entry in his complaint, Defendants were clearly on notice of Cummings’ unlawful entry
claim; in fact, Defendants moved for summary judgment on the unlawful entry claim, which was
fully briefed below by both parties. See, id. at 774 (“Subsequent filings in a case may rectify
deficiencies in the initial pleadings.”); see also Vencor, Inc. v. Standard Life and Accident Ins. Co.,
317 F.3d 629, 641, n.11 (6th Cir. 2003) (rejecting defendant’s claim on appeal that plaintiff waived
argument by not putting it in complaint, where plaintiff made the argument in its memorandum in
opposition to defendant’s motion for summary judgment). Notwithstanding the magistrate judge’s
statements, because Defendants failed to make any objection whatsoever to Cummings’ failure to
raise the unlawful entry claim in his complaint, we deem any objection waived for the purposes of
this appeal. See Smoot v. United Transp. Union, 246 F.3d 633, 648 (6th Cir. 2001) (“Because
[defendant] failed to object . . . below, under the waiver rule this Court will not consider
[defendant’s] claim”); United States v. Burns, 441 F.2d 544, 545 (9th Cir. 1971) (“[F]ailure to object
to the sufficiency of the complaint in the district court waives the point on appeal.”).
        Based on the above, we find Cummings to have preserved essentially three separate
constitutional claims for appeal, each of which has its genesis in the Fourth Amendment. First,
Cummings argues that Sherman’s and Vaughn’s entry into his home– both Sherman’s initial foot-in-
the door entry, and both officers’ subsequent forced entry–was in violation of the Fourth
Amendment, because the officers did not have a warrant or probable cause, and no exigent
circumstances supported their entry. Second, Cummings claims that Sherman and Vaughn illegally
seized him without probable cause. And third, Cummings asserts that Sherman and Vaughn used
excessive force against him.
                                        II.   DISCUSSION
       A.      Standard of Review
        We review the district court’s grant of summary judgment de novo. Moorer v. Baptist
Memorial Health Care Sys., 398 F.3d 469, 486 (6th Cir. 2005). Summary judgment is appropriate
where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We “must view all the facts
and the inferences drawn therefrom in the light most favorable to the nonmoving party,” Birch v.
Cuyahoga County Probate Court, 392 F.3d 151, 157 (6th Cir. 2004), but we will uphold a grant of
summary judgment “[w]here the record as a whole could not lead a rational trier of fact to find for
the non-moving party,” Matsushita Electric Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
       B.      Heck v. Humphrey
        The magistrate judge granted summary judgment in Defendants’ favor based on his finding
that “Cummings is clearly confronted with a Heck v. Humphrey dilemma.” Heck bars § 1983
plaintiffs from advancing claims that, if successful, “would necessarily imply the invalidity” of a
prior conviction or sentence. Heck, 512 U.S. at 487. However, if “the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id.
(emphasis in original). In the instant case, the magistrate judge concluded that Cummings’ success
No. 03-3259            Cummings v. City of Akron, et al.                                          Page 5


on any of his federal constitutional claims would necessarily imply the invalidity of his state court
misdemeanor assault conviction.
        We agree with the magistrate judge that success on Cummings’ excessive force claim would
necessarily imply the invalidity of his state assault conviction. The struggle between Cummings and
the officers gave rise to both Cummings’ assault conviction and the excessive force claim, and the
two are inextricably intertwined. Additionally, Cummings could have raised excessive force as a
defense to the assault charge, but instead he chose not to contest the charge. Thus, we hold that
Heck bars Cummings’ excessive force claim from moving forward, and we affirm the district court’s
grant of summary judgment to Defendants’ on this claim.
         However, we disagree with the magistrate judge’s conclusion that Heck bars Cummings’
unreasonable seizure and unlawful entry claims. Under Ohio law, Cummings was barred from
raising the illegality of the entry into his home or the unreasonableness of the officers’ initial seizure
of his person as defenses to assault. The traditional common law rule allowing individuals to resist
illegal arrests has been explicitly disregarded by the Ohio Supreme Court. See City of Columbus
v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975). In Fraley, the court held that “in the absence of
excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist
arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the
performance of his duties, whether or not the arrest is illegal under the circumstances.” Id. The
court later refined this holding in the context of a Fourth Amendment violation:
        A warrantless entry . . . may quite possibly result in the exclusion of pertinent
        incriminating evidence observed in such entry, and the showing of unreasonable
        conduct by a law enforcement officer may well provide a privilege to resist the entry
        by the occupant. Nevertheless, absent bad faith on the part of a law enforcement
        officer, an occupant . . . cannot obstruct the officer in the discharge of his duty,
        whether or not the officer’s actions are lawful under the circumstances.
State v. Pembaur, 459 N.E.2d 217, 219 (Ohio 1984).
        Contrary to the dissent’s claim, Fraley and Pembaur hold that the invalidity or unlawfulness
of a warrantless entry is not a defense to the charge that a criminal defendant assaulted a police
officer, and that absent excessive force, an arrestee may not use force against an officer. Id. at 219;
Fraley, 324 N.E.2d at 740. In Pembaur, the Ohio Supreme Court made clear that the exclusive
remedy for an unlawful entry by police officers is the suppression of any incriminating evidence that
is uncovered as a result of the illegal entry. See Pembaur, 459 N.E.2d at 219 (“Although defendant
may well successfully challenge the use against him of any evidence obtained by the deputies in
their search . . . defendant was not privileged to physically impede the deputies.”). The dissent’s
citation to City of Middleburg Heights v. Theiss, 501 N.E.2d 1226 (Ohio Ct. App. 1985), is also
misplaced. Theiss notes in dicta that individuals are privileged to refuse entry to police officers;
however, the court distinguished between the right to refuse initial entry and a right to assault
officers once they have gained entry; the latter is what Cummings pleaded no contest to, and like
Fraley and Pembaur, Theiss concludes that unlawful entry is not a defense to assaulting a police
officer. 501 N.E.2d at 1229 (“[T]he critical issue to resolve is whether, assuming the entrance was
unlawful, the defendants were then privileged to assault police officers after they had gained
entrance into the home. We think not.”) (emphasis in original).
       Cummings contested the officers’ actions in the course of his criminal prosecution by
moving to suppress evidence obtained as a result of the warrantless entry, an argument that, as
mentioned, was successful before both the trial court and the court of appeals. Separate and apart
from the fact that both the trial and appellate courts found that Sherman and Vaughn violated
Cummings’ Fourth Amendment right to be free from unreasonable search and seizure, Cummings’
No. 03-3259            Cummings v. City of Akron, et al.                                          Page 6


only defense to the assault charge against him would have been to claim that the officers used
excessive force. Cummings did not make such an argument, instead pleading no contest to
assaulting Vaughn. It is for this reason that Heck bars Cummings’ Fourth Amendment excessive
force claim from moving forward in the instant lawsuit. However, because Cummings had no other
Fourth Amendment defense to the assault charge, a successful suit under § 1983 against both
Sherman and Vaughn for entering his home without a warrant and probable cause would not “imply
the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. Additionally, although Ohio
law barred Cummings from asserting the illegality of the seizure of his person in the context of the
assault charge, Heck is not a bar to Cummings’ assertion of the illegal seizure claim in the instant
suit for damages. Cummings’ assault conviction cannot be disturbed whether he was legally or
illegally seized; thus, the relevant question becomes whether or not the seizure of Cummings’ person
and entry into his home were illegal, and if they were, whether Cummings suffered a compensable
injury. See Braxton v. Scott, 905 F. Supp. 455, 458 (N.D. Ohio 1995) (quoted in Shamaeizadeh v.
Cunigan, 182 F.3d 391, 396 (6th Cir. 1999)) (“[F]ourth amendment claims under § 1983 may be
brought without setting aside the conviction only if success would not undermine the conviction and
if the plaintiff alleges a compensable injury other than the conviction.”)
         One other point about Heck should be mentioned. The factual situation in this case is
distinguishable from the hypothetical situation discussed in footnote 6 of Heck, in which the Court
foreclosed § 1983 lawsuits based upon Fourth Amendment violations where the plaintiff was
previously convicted in state court of resisting arrest. Heck, 512 U.S. at 487, n. 6. The Court
explains that a subsequent suit for damages would not be cognizable because a lawful arrest is an
element of the typical offense of resisting arrest, and thus “[i]n order to prevail in this § 1983 action,
[the plaintiff] would have to negate an element of the offense of which he has been convicted.” Id.
Conversely, Cummings was convicted of assault, not resisting arrest, and the lawfulness of the arrest
is not an element of the crime of his conviction. Indeed, as discussed above, the legality of the arrest
is irrelevant to Cummings’ crime of conviction. Thus, footnote 6 of Heck is inapposite to the present
case.
        C.      Municipal Liability
        Before addressing the merits of Cummings’ claims against Sherman and Vaughn, we note
that the district court properly dismissed all claims against the City of Akron. “[A] municipality
cannot be held liable solely because it employs a tortfeasor-- or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). Rather, in order to hold a municipality liable, the § 1983 plaintiff
must show that he or she was injured as a direct result of the municipality’s official policy or
custom. City of Canton v. Harris, 489 U.S. 378, 385 (1989); Gray v. City of Detroit, 399 F.3d 612,
617 (6th Cir. 2005). In this case, Cummings has not shown a causal link between a policy or
custom of the City of Akron and a violation of his constitutional rights. Thus, the district court
properly granted summary judgment in the City’s favor.
        D.      Qualified Immunity and the Legality of the Officers’ Actions
        We now turn to the claims against Officers Sherman and Vaughn. Having found that Heck
is not a bar to some of Cummings’ claims, the question turns to whether the officers are protected
by qualified immunity. Qualified immunity is an affirmative defense that generally shields
government officials from suit under § 1983 for their discretionary actions. Thomas v. Cohen, 304
F.3d 563, 568 (6th Cir. 2002) (citing Anderson v. Creighton, 483 U.S. 635, 638-40 (1987); Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). In order to defeat Sherman’s and Vaughn’s assertion of
qualified immunity, Cummings must demonstrate that (1) Sherman and Vaughn deprived him of a
constitutionally protected right, and (2) that the right is “so clearly established that a reasonable
officer would understand that his or her actions would violate that right.” Id. at 569 (citing Harlow,
No. 03-3259           Cummings v. City of Akron, et al.                                          Page 7


457 U.S. at 818). Thus, “[t]he threshold inquiry a court must undertake in a qualified immunity
analysis is whether plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736 (2002).
                1.      Deprivation of a constitutionally protected right
       “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)
(quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)); cf. Welsh v. Wisconsin, 466 U.S.
740, 748 (“It is axiomatic that the physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.”) (quotation and citation omitted). Without a warrant
or consent, searches or seizures inside the home are upheld only “under extraordinary
circumstances,” because “[t]he freedom from armed intrusions of the home outside the judicial
process, without prior approval by a judge or magistrate . . . is one of our most basic civil liberties.”
United States v. Chambers, 395 F.3d 563, 565, 569 (6th Cir. 2005).
         Sherman and Vaughn had no warrant to arrest Cummings or to search his residence, and
Cummings did not consent to the officers’ entry into, or presence in, his home. Cummings
manifested his intent to keep the inside of his home private, first by attempting to talk to the officers
through the window, and later by only partially opening the front door during his conversation with
the officers and refusing their request to enter the house. Cummings also demonstrated that he
wished to end his conversation with the officers when he attempted to close the door, but he was
prevented from doing so by the presence of Sherman’s foot in the doorway. For these reasons, it
is clear, as the Ohio Court of Appeals found, that Cummings’ “attempt to close the door constituted
a termination of the consensual encounter, and communicated his lack of consent to any further
intrusion by the officers.” Cummings, supra, 2002 WL 57979 at *4.
        Defendants contend, as did the State in response to Cummings’ motion to suppress, that
when Cummings shut the door on Sherman’s foot, the officers had probable cause to believe that
Cummings had committed the crime of assault, and any entry into his home to seize him was
justified by exigent circumstances under the hot pursuit of a fleeing felon exception to the warrant
requirement. See, e.g., United States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003) (recognizing
“hot pursuit of a fleeing felon” as an exigency exception to the warrant requirement). We agree with
the Ohio Court of Appeals that this argument is without merit. As that court recognized, the key to
the hot pursuit exception is “that a suspect may not defeat an arrest which has been set in motion in
a public place . . . by the expedient of escaping to a private place.” United States v. Santana, 427
U.S. 38, 43 (1976). Typically, hot pursuit involves a situation where a suspect commits a crime,
flees and thereby exposes himself to the public, attempts to evade capture by entering a dwelling,
and the emergency nature of the situation necessitates immediate police action to apprehend the
suspect. See, e.g., Warden v. Hayden, 387 U.S. 294, 298-9 (1967); United States v. Bass, 315 F.3d
561, 564 (6th Cir. 2002); see also United States v. Saari, 272 F.3d 804, 812 (6th Cir. 2001)
(describing hot pursuit as “immediate or continuous pursuit of the Defendant from the scene of a
crime.”) In Santana, the Supreme Court upheld the effectuation of a warrantless arrest of the
defendant inside her home, because the police initiated the arrest while she was standing in the open
doorway of her house, and she retreated inside before the police could apprehend her. Integral to
the Court’s analysis was a finding that Santana “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,” and thus she had no legitimate expectation of privacy at the time the police initiated the
arrest. Santana, 427 U.S. at 42.
        In contrast to Warden and its progeny, Cummings did not commit a crime in a public place
and attempt to flee into his house; in contrast to Santana, Cummings never fully exposed himself
to the public view, given that he only opened the door very slightly, and only at the request of the
No. 03-3259                Cummings v. City of Akron, et al.                                                        Page 8


police. Additionally, unlike the situation in Santana, Sherman and Vaughn did not attempt to arrest
Cummings until after he tried to shut the door, at which point he clearly indicated that he did not
wish to be exposed to the public. Furthermore, it is highly questionable whether Cummings’ act of
closing the door on Sherman’s foot actually constituted an assault; if there is no underlying felony,
the ‘hot pursuit of a fleeing felon’ exception to the warrant requirement is untenable. Ohio’s assault
statute states that “[n]o person shall knowingly cause or attempt to cause physical harm to another,”
and “[n]o person shall recklessly cause serious physical harm to another.” Ohio Rev. Code
§ 2903.13 (A), (B) (emphasis added). There is no evidence on the record before us to suggest that
Cummings knew Sherman’s foot was in the doorway when he attempted to shut door, and the Ohio
Court of Appeals found it “undisputed that, whatever amount of force was applied, Officer
Sherman’s foot sustained no injuries as a result of Cummings’ attempt to close the door.”
Cummings, 2002 WL 57979 at *1, n.1. Given Cummings’ lack of exposure to the public view, as
well as the very questionable nature of the felony that Defendants allege he 4committed, the hot
pursuit of a fleeing felon exception to the warrant requirement is inapplicable.
        Because Sherman’s and Vaughn’s seizure of Cummings’ person and entry into his home
were unsupported by a warrant, consent or exigent circumstances based upon the hot pursuit of a
fleeing felon, the officers deprived Cummings of his constitutionally protected right to refuse entry
into his home, and to be free from an unreasonable seizure of his person.
                   2.       Clearly established nature of the constitutional violation
        Having found a violation of Cummings’ Fourth Amendment rights, we now turn to whether
those rights were clearly established at the time of Cummings’ arrest. In order to determine whether
a constitutional right is clearly established, we “look first to decisions of the Supreme Court, then
to decisions of this Court and other courts within our circuit, and finally to decisions of other
circuits.” Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994). In order for a constitutional right
to be clearly established, there need not be a case with the exact same fact pattern, or even
“fundamentally similar” or “materially similar” facts; rather, the question is whether the defendants
had “fair warning” that their actions were unconstitutional. Hope, supra, 536 U.S. at 741; cf. United
States v. Lanier, 520 U.S. 259, 271 (1997) (“[G]eneral statements of the law are not inherently
incapable of giving fair and clear warning, and in [some] instances a general constitutional rule
already identified in the decisional law may apply with obvious clarity to the specific conduct in
question, even though the very action in question has not previously been held unlawful.”)
(quotation and citation omitted).
        In the instant case, one not need go any further than Supreme Court precedent to see that
Cummings’ constitutional rights were clearly established. The bedrock Fourth Amendment
principles announced in Payton and Welsh demonstrate that the officers’ forced warrantless entry
into Cummings’ home was presumptively unreasonable, and the Court’s exigency decisions in
Warden and Santana clearly show that Sherman and Vaughn had no objectively reasonable basis
for believing that their warrantless entry into Cummings’ home was supported by the exigency of
hot pursuit of a fleeing felon. Therefore, we find that Sherman and Vaughn are not shielded by
qualified immunity, and Cummings’ Fourth Amendment claims for the warrantless entry into his


         4
          Defendants have not claimed any basis for exigent circumstances other than hot pursuit of a fleeing felon, such
as imminent destruction of evidence. Because qualified immunity must be asserted by the defendant official, it was
incumbent upon Defendants to raise a plausible legal basis for the asserted legality of their seizure of Cummings’ home
and person.
         In addition, as we stated in note 1, supra, our discussion of the officers’ hot pursuit theory, and their claim that
Cummings assaulted Sherman by shutting the door on his foot, should not be confused with the fact that Cummings
pleaded no contest to assaulting Vaughn alone. Therefore, the dissent’s quotation of the above paragraph in the context
of discussing Heck is misplaced.
No. 03-3259          Cummings v. City of Akron, et al.                                     Page 9


home and seizure of his person may go forward. On remand, the trier of fact will need to determine
what, if any, injury Cummings suffered as a result of Defendants’ actions, and what, if any,
monetary damages Cummings is entitled to as compensation.
                                     III.   CONCLUSION
        For the reasons set forth above, we AFFIRM the district court’s grant of summary judgment
in favor of the City of Akron, and the grant of summary judgment in Defendants’ favor on
Cummings’ excessive force claim. However, we REVERSE the grant of summary judgment in
favor of Defendants Sherman and Vaughn on Cummings’ unlawful entry and illegal seizure claims,
and REMAND the case to the district court for further proceedings consistent with this opinion.
No. 03-3259           Cummings v. City of Akron, et al.                                      Page 10


                                        ________________
                                            DISSENT
                                        ________________
         SUHRHEINRICH, Circuit Judge, dissenting. I dissent from the majority’s decision to
reverse because I believe Cummings’ federal constitutional claims collaterally attack the legality of
his state court assault conviction. Because Cummings’ state conviction has not been overturned on
appeal, expunged by the governor, declared invalid, or questioned by a habeas grant, all of his
federal claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
      The majority acknowledges the effect of Cummings’ plea agreement, and Heck, on at least
some of Cummings’ subsequent federal constitutional claims by stating that:
       success on Cummings’ excessive force claim would necessarily imply the invalidity
       of his state assault conviction. The struggle between Cummings and the officers
       gave rise to both Cummings’ assault conviction and the excessive force claim, and
       the two are inextricably intertwined. Additionally, Cummings could have raised
       excessive force as a defense to the assault charge, but instead he chose not to contest
       the charge.
Maj. Op. at 5.
        However, the majority holds that Cummings can maintain his § 1983 unlawful entry and
illegal seizure claims because, under Ohio law, Cummings cannot claim illegal entry or illegal
seizure as defenses to assault and, therefore, a successful conviction as to these claims would not
“imply the invalidity of [Cummings’] conviction or sentence.” Even if Cummings was precluded
from raising the privilege of illegal entry and seizure as a matter of law (a point I dispute, as
discussed below), he could have raised these issues as a matter of fact to argue that the State could
not prove he had the requisite mens rea for assault.
       The indictment reads in relevant part:
       The Jurors of the Grand Jury of the State of Ohio . . .
                                      COUNT ONE
       DO FIND AND PRESENT That CLIFFORD CUMMINGS, JR. On or about the
       9th day of March, 2001, in the County of Summit and State of Ohio, aforesaid, did
       commit the crime of ASSAULT in that he did knowingly cause or attempt to cause
       physical harm to Office Howard Vaughn, a peace officer, while in the performance
       of official duties, in violation of Section 2903.13(A) of the Ohio Revised Code. A
       FELONY OF THE FOURTH DEGREE, contrary to the form of the state in such
       case made and provided and against the peace and dignity of the State of Ohio.
                                                ...
No. 2001-03-0585, Court of Common Pleas, County of Summit, Ohio (March, 2001).
         Had Cummings pleaded “not guilty” instead of “no contest,” to this charge, the State would
have been required to prove beyond a reasonable doubt that Cummings “knowingly cause[d], or
attempt[ed] to cause physical harm to another.” Ohio Rev. Code § 2903.13 (emphasis added). That
is, the State would have been required to prove that Cummings was aware that his conduct would
probably cause a certain result or would probably be of a certain nature, regardless of his purpose
No. 03-3259               Cummings v. City of Akron, et al.                                                  Page 11


in so acting. See State v. Brown, 630 N.E. 2d 397 (Ohio App. 3d 1993) (defining “knowingly” for
purposes of Ohio Rev. Code § 2903.13). Yet, as the majority points out:
         [I]t is highly questionable whether Cummings’ act of closing the door on Sherman’s
         foot actually constituted an assault; if there is no underlying felony, the ‘hot pursuit
         of a fleeing felon’ exception to the warrant requirement is untenable. Ohio’s assault
         statute states that “[n]o person shall knowingly cause or attempt to cause physical
         harm to another,” and “[n]o person shall recklessly cause serious physical harm to
         another.” OHIO REV. CODE § 2903.12(A), (B) (emphasis added). There is no
         evidence on the record before us to suggest that Cummings knew Sherman’s foot
         was in the doorway when Cummings attempted to shut [the] door, and the Ohio
         Court of Appeals found it “undisputed that, whatever amount of force was applied,
         Officer Sherman’s foot sustained no injuries as a result of Cummings’ attempt to
         close the door.” Cummings, 2002 WL 57979, at *1, n.1. Given Cummings’ lack of
         exposure to public view, as well as the very questionable nature of the felony
         Defendants allege he committed, the hot pursuit exception to the warrant requirement
         is inapplicable.
                 Because Sherman’s and Vaughn’s seizure of Cummings’ person and entry
         into his home were unsupported by a warrant, consent or exigent circumstances
         based upon the hot pursuit of a fleeing felon, the officers deprived Cummings of his
         constitutionally protected right to refuse entry into his home, and to be free from an
         unreasonable seizure of his person.
Maj. Op. at 8 (footnote omitted).
        As the foregoing passage makes clear, Cummings could have argued that he did not have the
requisite criminal intent to commit the crime of assault because all he was trying to do was exercise
his well-established constitutional right to refuse the officers’ request for entry and close the door
to his home since the officers had neither a search warrant nor arrest warrant, and did not otherwise
indicate that they were operating under exigent circumstances. And, as the Ohio Court of Appeals
found, Sherman’s and Vaughn’s actions were indeed unlawful. Thus, on the facts of this case, the
legality or illegality of the officers’ presence was integrally connected to Cummings’ response to
the officers’ presence, and therefore his state of mind at the time of the alleged crime. In short,
contrary to the conclusion of the majority, Cummings had a perfect opportunity to raise his Fourth
Amendment claim in the state court criminal proceedings–to rebut the State’s contention that he had
the requisite mens rea to commit the crime of criminal assault.
        Instead, on March 19, 2002, Cummings pled “no contest” to the charge of assault against
Officer Vaughn as contained in Count I of the indictment.1 The order of the Court of Common Pleas
reads in part:
         Defendant retracts his plea of NOT GUILTY heretofore entered, and for plea to said
         Indictment, says he pleads NO CONTEST to the charge of ASSAULT, as contained
         in the amended Count I of the Indictment, Ohio Revised Code section 2919.13(A),


         1
          It should be noted that Cummings originally pleaded not guilty to all the charges against him, and filed a
motion to suppress. See State v. Cummings, No. 20609, 2002WL 57979, at *2 (Ohio Ct. App. Jan. 16, 2002). The trial
court granted the motion and the State appealed. On January 16, 2002, the Ohio Court of Appeals overruled the State’s
appeal and affirmed the trial court’s ruling. Then, on March 22, 2002, two months after the court of appeals’ decision,
Cummings apparently changed course and pleaded “no contest” in return for the State dropping all but the assault
charges against him, and reducing the felony assault charge to a misdemeanor. However, in the meantime, on March
5, 2002, Cummings filed this federal cause of action, asserting his Fourth Amendment claims.
No. 03-3259               Cummings v. City of Akron, et al.                                                     Page 12


         a misdemeanor of the first (1st) degree, which offense occurred on or about March
         9, 2001, which plea voluntarily made and with a full understanding of the
         consequences, is accepted by the Court. And based upon the facts as found by this
         Court, the Court finds that the Defendant is GUILTY as stated above.
No. CR 01 03 0585, Court of Common Pleas, County of Summit, Ohio (March 19, 2002) (emphasis
added). The order also indicates that Cummings was represented by counsel and was “fully advised
of his Constitutional rights and his rights as required under Rule 11 of the Ohio Rules of Criminal
Procedure.” Id. Based on Cummings’ “no contest” plea, the court dismissed the remaining charges
against him.
        As is clear from the state court order, Cummings was advised of his constitutional rights and
was made aware of the fact that a “no contest” plea amounted to the court finding him guilty of
criminal assault. Instead of pleading no contest, Cummings could have raised any Fourth
Amendment arguments which might have affected a determination of whether he was guilty of
assault. It is for this reason that Heck bars any claim in federal court based on the unlawful entry,
because a favorable ruling for Cummings on his federal constitutional claims necessarily implies that
he did not have the criminal intent to commit the crime of assault in that he did not knowingly intend
to cause physical harm to either officer but merely wished to refuse them entry into his home
because they had no right to come inside. However, by pleading no contest to those charges,
Cummings necessarily admitted that he was guilty of, and therefore had the criminal intent to
commit, the crime of assault.
         The majority also overstates the holdings of City of Columbus v. Fraley, 324 N.E.2d 735
(Ohio 1975), and State v. Pembaur, 459 N.E. 217 (Ohio 1984), as an absolute bar to these defenses.2
In Fraley, the defendant was convicted of violating an ordinance prohibiting the use of obscene
language on public streets and of also violating an ordinance prohibiting the use of violence against
a police officer. The Ohio Supreme Court rejected the defendant’s argument that she was privileged
to use force in resisting arrest if her arrest for the alleged use of obscene language was illegal. Id.
at 739. The Court held that “in the absence of excessive or unnecessary force by an arresting officer,
a private citizen may not use force to resist arrest by one he knows, or has good reason to believe,
is an authorized police officer engaged in the performance of his duties, whether or not the arrest
is illegal under the circumstances.” Id. at 740.
        In Pembaur, the defendant refused to allow two Cincinnati police officers to serve two bench
warrants upon two of his employees at his medical clinic, which was open to the public. The
defendant was charged with obstructing official business under Ohio Rev. Code § 2921.31(A). Id.
at 217-18. Stating that “[t]he key issue presented in this case is whether a person may obstruct a law
enforcement officer in the discharge of that officer’s duty, when the person believes that the officer’s
conduct is unlawful,” id. at 218, the Pembaur Court looked to Fraley:
         The crux of this case is the applicability of Columbus v. Fraley . . . . There we held
         in the third paragraph of the syllabus that:
         “In the absence of excessive or unnecessary force by an arresting officer, a private
         citizen may not use force to resist arrest by one he knows, or has good reason to


         2
           As the Ohio Court of Appeals has observed, “[t]he extent of the privilege to resist unlawful entry into the home
has yet to be dealt with in Ohio.” State v. Howard, 600 N.E. 2d 809, 816 (Ohio Ct. App. 1991) (quoting Middleburg
Heights v. Theiss, 501 N.E. 2d 1226 (Ohio Ct. App. 1985); see also Howard at 817 (noting a limited right to refuse entry
and stating that an occupant can refuse to consent to an entry and search by, for example, locking or closing the door
or physically placing one’s self in the officer’s way).
No. 03-3259           Cummings v. City of Akron, et al.                                        Page 13


       believe, is an authorized police officer engaged in the performance of his duties,
       whether or not the arrest is illegal under the circumstances.”
       In altering the common-law rule granting a person the right to resist an unlawful
       arrest, the Fraley court deemed it preferable, considering the crunch of modern
       society, to resolve the questions concerning the legality of police conduct in the
       courts through peaceful means rather than on the street in potentially violent
       confrontation. Fraley is determinative in the present case. Although defendant may
       well successfully challenge the use against him of any evidence obtained by the
       deputies in their search for defendant’s employees, defendant was not privileged to
       physically impede the deputies in their attempt to locate the subject of the capiases.
       This, of course, is not to hold that law enforcement officials can freely execute
       capiases and arrest warrants on third-party premises. A warrantless entry, as in this
       case, may quite possibly result in the exclusion of pertinent incriminating evidence
       observed in such entry, and the showing of unreasonable conduct by a law
       enforcement officer may well provide a privilege to resist the [warrantless] entry by
       the occupant. Nevertheless, absent bad faith on the part of a law enforcement
       officer, an occupant of business premises cannot obstruct the officer in the discharge
       of his duty whether or not the officer’s actions are lawful under the circumstances.
       The facts in this case do not show bad faith on the part of the deputies, or any other
       circumstances which would provide a privilege on the part of defendant to obstruct
       the deputies in the discharge of their duties.
Pembaur, 459 N.E. at 219 (emphasis added).
        Contrary to the majority’s representations, Fraley and Pembaur do not set forth a per se rule
barring the defense of illegality to a police officer’s entry. Furthermore, both cases dealt with public
places, not private homes. As the United States Supreme Court observed in Steagald v. United
States, 451 U.S. 201 (1981):
       Except in such special situations, we have consistently held that the entry into a
       home to conduct a search or make an arrest is unreasonable under the Fourth
       Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S.
       573 . . . (1980); Johnson v. United States, 333 U.S. 10, 13-15 . . . (1948). Thus, as
       we recently observed: “In terms that apply equally to seizures of property and to
       seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to
       the house. Absent exigent circumstances, that threshold may not reasonably be
       crossed without a warrant.” Payton v. New York, supra, 445 U.S. at 590.
Steagald, 451 U.S. at 211-12.
        I submit that, under Fraley and Pembaur, Cummings could have asserted the
unreasonableness of that Sherman’s and Vaughn’s conduct as a defense to the state assault charge.
After all, the majority observes “[t]he bedrock Fourth amendment principles announced in Payton
and Welsh demonstrates that the officers’ forced warrantless entry into Cummings’ home was
presumptively unreasonable, and the Court’s exigency decisions in Warden and Santana clearly
show that Sherman and Vaughn had no objectively reasonable basis for believing that their
warrantless entry into Cummings’ home was supported by the exigency of hot pursuit of a fleeing
felon.” Maj. Op. at 8 (emphasis added).
         In short, by pleading no contest to the assault charge, Cummings conceded that he acted
unlawfully, without justification. A conclusion by a federal court that the officers’ conduct was
illegal necessarily undermines that judgment of conviction. Furthermore, because Cummings could
No. 03-3259          Cummings v. City of Akron, et al.                                   Page 14


have raised the officers’ illegal search and seizure as a defense –arguably as a matter of law anc
certainly as a matter of fact–the federal court action is barred by Heck.
       Unfortunately, the Court today has allowed Cummings to make an end run around Heck, and
ultimately, the underlying state criminal proceeding Heck seeks to protect.
       For these reasons, I DISSENT.
