                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10788                 JUNE 28, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                           D.C. Docket No. 2:08-cv-00181-CEH-SPC

STEVEN W. WASHINGTON,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                          versus

JONATHAN TOBECK, individually, and
as an officer of the Ft. Myers Police Department,
JEREMY HAWKINS, individually, and as an officer
of the Ft. Myers Police Department,

lllllllllllllllllllll                                            Defendants-Appellants.

                                ________________________

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

                                        (June 28, 2011)

Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
       Jonathan Tobeck and Jeremy Hawkins (together, “Defendants”), officers in

the Fort Myers Police Department, appeal the district court’s denial of their motion

for summary judgment based on qualified immunity in Steven Washington’s

action for damages under 42 U.S.C. § 1983.1 Washington has alleged that

Defendants violated his Fourth Amendment rights when they entered his home

without a warrant and arrested him.

       Because Defendants were acting within the scope of their discretionary

authority, Washington bears the burden of proving they are not entitled to

qualified immunity. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136-37

(11th Cir. 2007). Thus, Washington “must satisfy a two prong test; he must show

that: (1) the defendant violated a constitutional right, and (2) this right was clearly

established at the time of the alleged violation.” Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1264 (11th Cir. 2004).

       Defendants claim on appeal that Washington cannot overcome qualified

immunity under either prong. First, they claim that they did not violate

Washington’s Fourth Amendment rights because exigent circumstances justified



       1
          We review “de novo a district court’s disposition of a summary judgment motion based
on qualified immunity, applying the same legal standards as the district court.” Durruthy v.
Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). All issues of material fact are resolved in favor of
the plaintiff, and then, under that version of the facts, the legal question of whether the defendant
is entitled to qualified immunity is determined. Id.

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entering Washington’s home to arrest him due to his violation of a noise

ordinance, obstruction of justice, and battery of one of the officers. Second, and

alternatively, Defendants argue that, even if they violated his Fourth Amendment

rights in entering without exigent circumstances, they are still entitled to qualified

immunity because the law did not clearly establish that their actions violated

Washington’s Fourth Amendment rights.

       A warrantless arrest in the home without consent is prohibited by the Fourth

Amendment absent probable cause2 and exigent circumstances. Welsh v.

Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097, 80 L. Ed. 2d 732 (1984).

Exigent circumstances exist when “the inevitable delay incident to obtaining a

warrant must give way to an urgent need for immediate action.” McClish v.

Nugent, 483 F.3d 1231, 1241 (11th Cir. 2007) (citation omitted). Factors

indicating exigent circumstances include:

       (1) the gravity or violent nature of the offense with which the suspect
       is to be charged; (2) a reasonable belief that the suspect is armed; (3)
       probable cause to believe that the suspect committed the crime; (4)
       strong reason to believe that the suspect is in the premises being
       entered; (5) a likelihood that delay could cause the escape of the
       suspect or the destruction of essential evidence, or jeopardize the
       safety of officers or the public.



       2
         There is no dispute that Washington had violated the noise ordinance. However, because
we find no exigent circumstances, we do not address the probable cause requirement.

                                              3
United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987). We presume

that a warrantless entry into a home to make an arrest is unreasonable, and the

government has a high burden to prove that exigent circumstances existed. Welsh,

466 U.S. at 750, 104 S. Ct. at 2098. Furthermore, “application of the exigent-

circumstances exception in the context of a home entry should rarely be

sanctioned when there is probable cause to believe that only a minor offense . . .

has been committed.” Id. at 753, 104 S. Ct. at 2099.

      A right is clearly established if it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted. Vinyard v. Wilson, 311

F.3d 1340, 1350 (11th Cir. 2002). For a plaintiff to avoid qualified immunity

barring his suit, he need not show that the officer’s conduct specifically has been

held unlawful, but rather that “in the light of pre-existing law the unlawfulness

[was] apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039,

97 L. Ed. 2d 523 (1987).

      Defendants claim that they reasonably believed Washington had assaulted

Tobeck by slamming the door on his foot and that they never crossed the threshold

and instead pulled Washington out from the doorway. But viewing the facts in the

light most favorable to Washington, as we must, the record cannot sustain

Defendants’ claims. When they informed Washington of the noise violation, he


                                          4
complied with their request to lower the volume of the music and then asked them

to leave. When they did not respond, he attempted to close the door, but they

stopped the door from closing, and then kicked in the door, stepped in, and

arrested Washington in his home.

      The district court did not err in denying Defendants’ motion for summary

judgment on this record. Exigent circumstances did not exist to arrest Washington.

Only “a minor offense . . . ha[d] been committed,” and no danger was apparent.

Welsh, 466 U.S. at 753, 104 S. Ct. at 2099. There simply was no “urgent need for

immediate action.” McClish, 483 F.3d at 1241. Furthermore, the law was clearly

established at the time of the incident that, with such a clear absence of exigent

circumstances, Defendants’ arrest of Washington in his home violated his Fourth

Amendment rights. Accordingly, we affirm the district court’s denial of

Defendants’ motion for summary judgment on qualified immunity grounds.

      AFFIRMED.




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