          United States Court of Appeals
                      For the First Circuit

No. 13-1779

                        PHILIP MACDONALD,

                      Plaintiff, Appellant,

                                v.

                     TOWN OF EASTHAM ET AL.,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                              Before

                    Torruella, Circuit Judge,
                   Souter,* Associate Justice,
                    and Selya, Circuit Judge.


     Bruce T. Macdonald for appellant.
     Thomas R. Donahue, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for
appellees Town of Eastham, Sylvia, and Mungovan.
     Matthew J. Murphy, General Counsel, Barnstable County
Sheriff's Office, for appellee Dinan.


                          March 12, 2014




     *
      Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
          SELYA, Circuit Judge.    This appeal poses the question of

whether police officers, responding to a call from a citizen

concerned that the door to her absent neighbor's home is standing

wide open, have a right to enter the home in pursuance of their

community caretaking function.    While the answer to this question

is freighted with uncertainty, that uncertainty points the way to

the proper disposition of the case: because there is no clearly

established law that would deter reasonable police officers from

effecting such an entry, the individual defendants are entitled to

qualified immunity.   Consequently, we affirm the district court's

dismissal of the action.

          Inasmuch as this appeal follows the grant of a motion to

dismiss, see Fed. R. Civ. P. 12(b)(6), we weed the facts from the

plaintiff's complaint.     See Butler v. Balolia, 736 F.3d 609, 611

(1st Cir. 2013).

          On the afternoon of November 7, 2009, plaintiff-appellant

Philip Macdonald, accompanied by his dog, left his home in Eastham,

Massachusetts, for coffee and clamming.    His cat, being "[o]f all

God's creatures . . . [the] only one that cannot be made the slave

of the lash," Mark Twain, Mark Twain's Notebook         236 (1935),

remained out and about.     To accommodate the feline's comings and

goings, the plaintiff left the door to his home wide open as he

embarked on his trip.




                                  -2-
            That circumstance did not go unnoticed.                      Forty-five

minutes     later,    a     neighbor    relayed      concerns     to     the   local

constabulary about the wide open door at the plaintiff's vacant

home.     Responding to that call, two Eastham police officers

(defendants-appellees Norman Sylvia and Kate Mungovan) interviewed

the neighbor.        They then approached the plaintiff's house and

announced their presence.           Receiving no response, they entered the

kitchen through the open door.

            Finding       nothing   amiss     in   the   kitchen,   the    officers

proceeded to search the rest of the house.                 That search revealed

the presence of a marijuana-growing operation.

            When the plaintiff returned to his abode some 30 minutes

later, he was arrested. Following some procedural twists and turns

not relevant here, he was charged in state court with offenses

related to the manufacture and possession of marijuana.                    But when

a state-court judge suppressed the evidence found in his home, the

charges were dropped.

            The matter did not end there.                With the criminal case

laid to rest, the plaintiff's thoughts turned to civil liability.

He sued the Town of Eastham (the Town), Officers Sylvia and

Mungovan,    and     crime-scene      investigator       Terry   Dinan    (who   had

assisted in the search) in the federal district court, alleging

that they had deprived him of his Fourth Amendment rights in




                                        -3-
violation of 42 U.S.C. § 1983.             His complaint also advanced

supplemental state-law claims.

           The defendants moved to dismiss, and the district court

granted the motion. The court held that the officers were entitled

to qualified immunity.        See Macdonald v. Town of Eastham, 946 F.

Supp. 2d 235, 243 (D. Mass. 2013).1        This timely appeal ensued.

           Our review of the grant of a Rule 12(b)(6) motion to

dismiss is de novo.     See Butler, 736 F.3d at 612.     We are not bound

by the district court's reasoning but, rather, may affirm an order

of dismissal on any ground evident from the record.             See Haley v.

City of Bos., 657 F.3d 39, 46 (1st Cir. 2011).

           In this venue, the plaintiff challenges the district

court's   application    of   the   doctrine   of   qualified    immunity.

Addressing that challenge requires us to explore the rudiments of

the doctrine and thereafter test the soundness of the district

court's decision.

           "[Q]ualified immunity protects government officials from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known."         Pearson v. Callahan,


     1
       The district court also ruled that, on the facts alleged,
the Town could not be held liable. See Macdonald, 946 F. Supp. 2d
at 243. Additionally, it dismissed the state-law claims. See id.
at 244.   On appeal, the plaintiff has abandoned his state-law
claims, and he does not challenge the ruling in favor of the Town
except to say that it should be reversed were we to vacate the
judgment entered in favor of the officers.

                                     -4-
555 U.S. 223, 231 (2009) (internal quotation marks omitted).           The

doctrine    "gives   government   officials   breathing   room    to   make

reasonable but mistaken judgments about open legal questions."

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011). Thus, qualified

immunity protects "all but the plainly incompetent or those who

knowingly violate the law."       Malley v. Briggs, 475 U.S. 335, 341

(1986).    However, the doctrine is not without limits.     Despite the

breadth of its prophylactic sweep, "qualified immunity does not

shield public officials who, from an objective standpoint, should

have known that their conduct was unlawful." Haley, 657 F.3d at 47

(internal quotation marks omitted).

            Qualified immunity is designed to confer protection from

the travails of suit as well as from the imposition of damages.

Hence, courts should evaluate claims of qualified immunity at the

earliest practicable stage of litigation.        See Hunter v. Bryant,

502 U.S. 224, 227 (1991) (per curiam).

            This evaluation entails a two-part inquiry.      See Haley,

657 F.3d at 47.      For one thing, the court must ask "whether the

facts that a plaintiff has alleged . . . make out a violation of a

constitutional right."      Pearson, 555 U.S. at 232.       For another

thing, the court must ask "whether the right at issue was 'clearly

established' at the time of defendant's alleged misconduct."           Id.

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).             The court




                                   -5-
need not address these two questions in any particular sequence.

See id. at 242.

            Here, the answer to the second question is sufficient to

resolve the plaintiff's appeal. Consequently, we train the lens of

our inquiry on whether, at the time of the intrusion, Fourth

Amendment     jurisprudence   plainly     signaled    to   the   individual

defendants     in   this   case    that    their     conduct     overstepped

constitutional boundaries.

            The requisite analysis presents a purely legal question.

See Walden v. City of Prov., 596 F.3d 38, 53 (1st Cir. 2010).              It

has two elements. The first element "focuses on the clarity of the

law at the time of the alleged civil rights violation"; this

element turns on whether the contours of the relevant right were

clear enough to signal to a reasonable official that his conduct

would infringe that right.        Maldonado v. Fontanes, 568 F.3d 263,

269 (1st Cir. 2009). The second element is more particularized; it

turns on "whether a reasonable defendant would have understood that

his conduct violated the plaintiff['s] constitutional rights." Id.

            Moving to the specifics of this case, we start with first

principles.     As a general matter, the Fourth Amendment requires

police officers to secure a warrant prior to effecting a non-

consensual entry into a person's residence.                See   Georgia   v.

Randolph, 547 U.S. 103, 109 (2006). Where, as here, officers enter

without a warrant and without consent, their actions must fall


                                    -6-
within some recognized exception to the warrant requirement.              See

United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004).

            In this instance, the defendant officers seek shelter in

the community caretaking exception.          That exception traces its

roots to the Supreme Court's decision in Cady v. Dombrowski, 413

U.S. 433 (1973).      The Cady Court, while upholding a warrantless

vehicle   search,    explained   that   police    officers    sometimes   may

"engage in what . . . may be described as community caretaking

functions, totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal

statute."    Id. at 441.

            As the law has developed, the community caretaking rubric

has become "a catchall for the wide range of responsibilities that

police    officers    must   discharge    aside    from      their   criminal

enforcement activities."      United States v. Rodriguez-Morales, 929

F.2d 780, 785 (1st Cir. 1991).            In line with this evolving

principle, we have recognized (in the motor vehicle context) a

community caretaking exception to the warrant requirement.                 In

delineating this exception, we held that "[t]he imperatives of the

fourth amendment are satisfied in connection with the performance

of . . . community caretaker tasks [by police officers] so long as

the procedure employed (and its implementation) is reasonable."

Id.




                                   -7-
            To be sure, the case at hand is not a motor vehicle case,

and the reach of the community caretaking doctrine is poorly

defined outside that milieu.       This court has not decided whether

the community caretaking exception applies to police activities

involving a person's home.     See United States v. Tibolt, 72 F.3d

965, 969 n.2 (1st Cir. 1995) (leaving question open).            The courts

of appeals elsewhere are divided on that question. See Ray v. Twp.

of Warren, 626 F.3d 170, 175-76 (3d Cir. 2010) (collecting cases

and concluding that "[t]here is some confusion among the circuits

as to whether the community caretaking exception . . . applies to

warrantless searches of the home").       State appellate courts are

also split. Compare, e.g., State v. Vargas, 63 A.3d 175, 186 (N.J.

2013)   (repudiating   "language    suggesting    that     the   community-

caretaking doctrine permits the warrantless entry into or search of

a home in the absence of some form of exigent circumstances"),

with, e.g., State v. Deneui, 775 N.W.2d 221, 239 (S.D. 2009)

(holding that "homes cannot be arbitrarily isolated from the

community    caretaking   equation");    see     also    Commonwealth    v.

Entwistle, 973 N.E.2d 115, 127 n.8 (Mass. 2012), cert. denied, 133

S. Ct. 945 (2013) (leaving question open).

            The question is complicated because courts do not always

draw fine lines between the community caretaking exception and

other exceptions to the warrant requirement.            See, e.g., Deneui,

775 N.W.2d at 232 (decrying the "contradictory and sometimes


                                   -8-
conflicting" way in which the community caretaking, emergency, and

emergency aid doctrines have been applied).          The juxtaposition

between the community caretaking exception and the emergency aid

exception furnishes an apt illustration of this overlap.2         Some

courts have treated emergency aid as a freestanding exception to

the warrant requirement.    See, e.g., Entwistle, 973 N.E.2d at 127

n.8. Others have classified emergency aid as "a subcategory of the

community caretaking exception."    People v. Ray, 981 P.2d 928, 933

(Cal. 1999).    Indeed, some courts have held that giving the

community caretaking exception a life in the home independent and

apart from the emergency aid exception "would render the emergency-

aid doctrine obsolete."    Vargas, 63 A.3d at 189.   The other side of

the coin is that some courts continue to insist on a sharp line of

demarcation between the emergency aid exception and the community

caretaking exception. See, e.g., State v. Pinkard, 785 N.W.2d 592,

600 n.8 (Wis. 2010).

          The same sort of disarray is evident in the manner in

which courts have attempted to define the interface between the

exigent circumstances exception to the warrant requirement and the

community caretaking exception.3    For example, some courts "apply


     2
      Under the emergency aid exception, "law enforcement officers
may enter a home without a warrant to render emergency assistance
to an injured occupant or to protect an occupant from imminent
injury." Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
     3
       A warrantless entry into a residence "may be permitted if
'exigent circumstances' arise." United States v. Samboy, 433 F.3d

                                 -9-
what appears to be a modified exigent circumstances test, with

perhaps a lower threshold for exigency if the officer is acting in

a community caretaking role."           Twp. of Warren, 626 F.3d at 176.

Other courts steadfastly maintain that the exceptions are not

congruent and must be analyzed and applied distinctly. See, e.g.,

Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009).

             Given   the   profusion     of    cases   pointing     in   different

directions, it is apparent that the scope and boundaries of the

community caretaking exception are nebulous. The plaintiff appears

to concede that this rampant uncertainty exists.                Nevertheless, he

strives to convince us that, whatever the parameters of the

exception, the circumstances here fall outside of it.                    We are not

persuaded.

             There   is    no   real   dispute      about   what   the    defendant

officers did: they responded to a call from a concerned neighbor,

saw the door to the plaintiff's house standing wide open, announced

their presence without receiving a reply, and proceeded to enter

the home to ensure that nothing was amiss.                  They conducted their

ensuing search in an unremarkable manner.                  These actions were at

least   arguably     within     the    scope   of    the    officers'     community

caretaking responsibilities — and, given the parade of horribles


154, 158 (1st Cir. 2005).    "To show exigent circumstances, the
police must reasonably believe that there is such a compelling
necessity for immediate action as will not brook the delay of
obtaining a warrant," as "when delay would risk the destruction of
evidence." Id. (internal quotation marks omitted).

                                        -10-
that could easily be imagined had the officers simply turned tail,

a plausible argument can be made that the officers' actions were

reasonable under the circumstances.   The plaintiff disagrees.   He

contends that the officers' actions were well outside what the law

allows and that any reasonable officer should have known as much.

          To evaluate the plaintiff's contention, we must examine

whether, at the time of the incident, there were either controlling

cases or a consensus of persuasive authorities such that reasonable

police officers could not have thought that their actions were

lawful.   See Barton v. Clancy, 632 F.3d 9, 22 (1st Cir. 2011).

Manifestly, there is no directly controlling authority.          The

question thus reduces to whether a consensus of persuasive judicial

decisions exists.   We think not.

          The plaintiff places heavy reliance on two intermediate

state appellate decisions.   First, he cites the decision in State

v. Christenson, 45 P.3d 511 (Or. Ct. App. 2002), in which the court

concluded that "an open door on a summer morning is not, in and of

itself, a circumstance that could" justify a home entry under the

community caretaking exception. Id. at 513. Second, he cites Kyer

v. Commonwealth, 612 S.E.2d 213 (Va. Ct. App. 2005) (en banc), in

which the court refused to apply the community caretaking exception

based on "only one arguably suspicious circumstance: an open door

on an August night."   Id. at 217.




                               -11-
            These decisions are admittedly helpful to the plaintiff's

position, but they are only two small islands in a sea of confusing

case law.    Standing alone, they do not comprise the consensus of

persuasive authority needed to overcome the defendants' claims of

qualified immunity.    Other state courts have upheld entries into a

dwelling by police officers in circumstances analogous to the

circumstances here.    For instance, in State v. Alexander, 721 A.2d

275 (Md. Ct. Spec. App. 1998), an intermediate appellate court held

that a police entry into a home based upon a neighbor's report of

an open basement door and an absent owner was appropriate under the

community caretaking exception.       See id. at 277, 286-87.         So, too,

in Ray, the state supreme court employed the community caretaking

exception to uphold a home entry by police officers based largely

"on a neighbor's report that the front door had been open all day"

and that "no one was at home."   981 P.2d at 938 (internal quotation

mark omitted).

            Even if the cases that run contrary to the plaintiff's

position were wrongly decided — a matter on which we take no view

— they serve to inject a substantial measure of doubt as to whether

the Fourth Amendment barred the officers' entry in this case. That

substantial measure of doubt undermines the putative consensus that

the plaintiff labors to construct and dooms his appeal.           To render

a   government   official's   claim    of    qualified     immunity    inert,

"existing    precedent   must    have       placed   the     statutory     or


                                 -12-
constitutional question beyond debate."         al-Kidd, 131 S. Ct. at

2083.   The mixed bag that a canvass of the case law reveals simply

does not produce the requisite degree of clarity here.

           The short of it is that neither the general dimensions of

the community caretaking exception nor the case law addressing the

application of that exception provides the sort of red flag that

would have semaphored to reasonable police officers that their

entry into the plaintiff's home was illegal. Qualified immunity is

meant to protect government officials where no such red flags are

flying, see Pearson, 555 U.S. at 231, and we discern no error in

the application of the doctrine to this case.

           In a last-gasp effort to prevent his case from going up

in smoke, the plaintiff tries to change the trajectory of the

debate.   Reminding us that "[t]he ultimate standard set forth in

the Fourth Amendment is reasonableness," Cady, 413 U.S. at 439, the

plaintiff urges that we employ this more general lens instead of

the specific filter of community caretaking.         This exhortation has

little to commend it.      The Supreme Court has made pellucid that

"[t]he general proposition . . . that an unreasonable search or

seizure   violates   the   Fourth   Amendment   is   of   little   help   in

determining whether the violative nature of particular conduct is

clearly established."      al-Kidd, 131 S. Ct. at 2084.

           That guidance is dispositive here. The generic rubric of

"reasonableness" furnishes us no clear indication as to whether a


                                    -13-
police officer confronted with a vacant house, an open door, and a

worried   neighbor   ought   to   know   that   entering   the   house   is

proscribed by the Fourth Amendment.

            Let us be perfectly clear.          We do not decide today

whether or not the community caretaking exception can be applied so

as to render constitutional a warrantless and non-consensual police

entry into a residence.       Nor do we decide whether or not the

circumstances that confronted the officers here come within the

compass of the community caretaking exception. These questions are

down-to-the-wire close — but the very closeness of the questions is

telling. Given the nature of the qualified immunity inquiry, it is

sufficient to hold — as we do in this opinion — that because these

questions are not resolved by clearly established law, the officers

who entered and searched the plaintiff's dwelling are entitled to

the shield of qualified immunity.        We need go no further.



Affirmed.




                                  -14-
