                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                             Denise Brown v. State of New Jersey (A-71-15) (076656)

Argued January 31, 2017 -- Decided July 25, 2017

LaVecchia, J., writing for the Court.

        This appeal concerns the applicability of qualified immunity to a claim brought under the New Jersey Civil
Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, against a police detective named in his individual and official capacity.

          The events underlying this appeal relate to a State Police investigation of an October 2008 home invasion.
According to witnesses, two men forcibly entered a home, stole belongings, and fled in a blue BMW. A few weeks
later, plaintiff Denise Brown loaned her blue BMW to her boyfriend, Carlos Thomas. The State Police suspected
that Thomas was involved in the burglary. Officers conducted a traffic stop, arrested Thomas for driving with a
suspended license, and impounded Brown’s vehicle. On November 20, Detective Eskridge searched Brown’s car
and found contraband and items linking the car to the home invasion. The State Police received a tip that Thomas
had given Brown a locket reported as stolen during the break-in. The locket was not found in the search of Brown’s
car. As a result, Detective Eskridge determined that the investigation should include a search of Brown’s home.

          Detective Eskridge decided to ask Brown if she would consent to a search of her home. Detective John
Steet of the State Police accompanied him. The detectives arrived at Brown’s apartment, told Brown that they had
received a tip that Thomas had given her a stolen locket and asked if she would consent to a search of her home for
the item. She immediately refused and told the officers to obtain a warrant if they wanted to search her apartment.

          Detective Steet testified that Brown’s refusal to consent after she learned that the detectives were looking
for a stolen locket made him fear that Brown would destroy evidence of the locket if she were permitted to enter the
apartment alone. To prevent that possibility, the detectives told Brown that she could either remain outside the
apartment, which would be secured by the officers from the outside, or enter the apartment accompanied by a police
escort. Both detectives testified that their offer to secure the premises in either of those two ways was consistent
with State Police training and approved by a supervisor at the State Police who had been contacted.

         Brown chose to enter the apartment, and Detective Steet followed her in. Detective Eskridge left to obtain
a warrant. Other officers arrived an hour later. The officers remained in the kitchen, with Brown, while awaiting
Eskridge’s return. Detective Eskridge, armed with a search warrant, returned and searched the apartment.

         Brown filed a complaint against the State of New Jersey, Detectives Steet and Eskridge, and other officers.
Defendants raised qualified immunity as a defense. Defendants’ motion for summary judgment was denied as to the
State Police and Detective Steet. The jury returned a verdict in favor of defendants. The Appellate Division
reversed as to whether Detective Steet was entitled to qualified immunity. 442 N.J. Super. 406, 410-11 (App. Div.
2015). The panel concluded that Detective Steet acted unconstitutionally by entering Brown’s home without a
warrant and identified the warrantless entry as a clear violation of established precedent. The Court granted the
Attorney General’s petition for certification. 225 N.J. 339 (2016).

HELD: In light of the context in which these circumstances arose—i.e., the lack of clarity in the law governing the
lawful means by which law enforcement may secure a home pending issuance of a warrant and, significantly, that law’s
intersection with the law governing the exigent circumstances exception to the warrant requirement—defendant did not
violate a “clearly established” right when he entered Brown’s home to secure it, and qualified immunity applies.

1. Whether a governmental official is entitled to qualified immunity requires inquiries into whether: (1) the facts,
taken in the light most favorable to the party asserting the injury show the officer’s conduct violated a constitutional
right; and (2) that constitutional right was clearly established at the time that defendant acted. (pp. 15-17)
2. Ordinarily, application of the defense of qualified immunity is a legal question for the court rather than the jury.
The record does not clearly indicate that the trial court made a ruling as to the legality of the initial entry into
Brown’s apartment prior to trial. In the future, it would be more helpful for proceedings to identify with
transparency the reasons for delaying a decision on qualified immunity. (pp 17-19)

3. Brown alleges that the police entry into her apartment violated the right of New Jerseyans “to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” N.J. Const. art. I, ¶ 7. Under that
provision, a warrantless search is presumptively invalid unless the search falls within one of the few well-delineated
exceptions to the warrant requirement. One exception is a search justified by probable cause and exigent
circumstances. The Attorney General has expressly conceded that, on these facts, “the officers could not have relied
on exigent circumstances to search Brown’s home while they awaited the warrant.” (pp. 19-20)

4. Instead, the Attorney General argues that the entry was lawful under United States Supreme Court case law that
has specifically addressed the propriety of securing premises from within to preserve evidence while a search
warrant was sought. In a 1984 case, the United States Supreme Court splintered on that pertinent issue. Segura v.
United States, 468 U.S. 796 (1984). Confusion engendered by Segura was alleviated to some degree by the
Supreme Court’s decision in Illinois v. McArthur, 531 U.S. 326 (2001), which held that a police officer was justified
in temporarily preventing a defendant from entering his home until a search warrant issued. To the extent that
Segura and McArthur can be argued to justify a discrete set of warrantless home entries pending receipt of a
requested warrant, they do so specifically in connection with “a plausible claim of specially pressing or urgent law
enforcement need, i.e., ‘exigent circumstances.’” Id. at 331. (pp. 20-24)

5. In the seven years between McArthur and the conduct at issue in this case, the New Jersey Supreme Court did not
opine on the constitutionality of seizing a home by securing it and preventing all access, or alternatively entering it
with the occupant, while awaiting a search warrant. Appellate court decisions that considered the issue have not
advanced a uniform interpretation of the law. The Court has recently touched on issues presented in Segura and
McArthur. State v. Wright, 221 N.J. 456 (2015); State v. Legette, 227 N.J. 460 (2017). That guidance cannot
inform the analysis of the conduct in this case because it came years after the contested home entry. (pp. 24-28)

6. As of November 20, 2008, precedent was not sufficiently clear to support a conclusion that Detective Steet
violated clearly established law when he entered Brown’s home to secure it. And although police department
policies do not hold compelling weight in a qualified immunity analysis, Detective Steet’s reliance on State Police
training and policy is informative when determining the reasonableness of his conduct. Detective Steet is entitled to
qualified immunity as to Brown’s NJCRA claim because regardless of whether his conduct amounts to a violation of
a constitutional right, that right was not clearly established at the time that he acted. (pp. 28-35)

7. The Court adds guidance going forward. In a case of true exigency and probable cause, the police can enter a
dwelling. However, police-created exigency designed to subvert the warrant requirement has long been rejected as a
basis to justify a warrantless entry into a home. Further, invocation of a person’s right to refuse an officer’s request
for a consent search is not probative of wrongdoing and cannot be the justification for the warrantless entry into a
home. In the future, law enforcement officials may not rely on McArthur to enter an apartment to secure it while
awaiting a search warrant. Although McArthur does not explicitly permit or forbid entry into a home under those
circumstances, this ruling makes clear that officers may not do so. They must get a warrant and, if reasonably
necessary, may secure the apartment for a reasonable period of time from the outside. (pp. 35-37)

         The judgment of the Appellate Division is REVERSED, and the trial court’s dismissal of this action
against Detective Steet is REINSTATED.

         JUSTICE ALBIN, DISSENTING, notes that in the wake of McArthur, courts understood, as they always
have, that the securing of a home—awaiting a warrant application—cannot be justified absent exigent
circumstances. According to Justice Albin, Brown had a clearly established right to remain secure in her home,
pending the arrival of a warrant, given the absence of any true exigent circumstances to justify a seizure of her
apartment. Detective Steet therefore is not entitled to the protection of qualified immunity, in Justice Albin’s view.

     CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and
TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.

                                                           2
                                    SUPREME COURT OF NEW JERSEY
                                      A-71 September Term 2015
                                               076656

DENISE BROWN,

    Plaintiff-Respondent,

         v.

STATE OF NEW JERSEY and JOHN
STEET, DETECTIVE (NJSP), both
in his individual and
official capacity as New
Jersey State Police
Detective,

    Defendants-Appellants,

         and

RICK FUENTES, COLONEL, both
in his individual and
official capacity as
Superintendent of New Jersey
State Police, CHRISTIAN
ESKRIDGE, TROOPER (NJSP),
both in his individual and
official capacity as New
Jersey State Trooper, CITY OF
VINELAND, TIMOTHY CODISPOTI,
both in his individual and
official capacity as Vineland
Chief of Police, JOSEPH
VALENTINE, both in his
individual and official
capacity as Vineland Police
Sergeant, DAVID HENDERSCOTT,
OFFICER, both in his
individual and official
capacity as Vineland Police
Officer, OFFICER SMITH, both
in his individual and
official capacity as Vineland
Police Officer, and OFFICER
SOTO, both in her individual

                                1
and official capacity as
Vineland Police Officer,

     Defendants.


          Argued January 31, 2017 – Decided July 24, 2017

          On certification to the Superior Court,
          Appellate Division, whose opinion is
          reported at 442 N.J. Super. 406 (App. Div.
          2015).

          David S. Frankel, Deputy Attorney General,
          argued the cause for appellant (Christopher
          S. Porrino, Attorney General, attorney;
          Melissa H. Raksa, Assistant Attorney
          General, of counsel).

          Carl D. Poplar argued the cause for
          respondent (The Riback Law Firm, attorneys;
          Mr. Poplar and William A. Riback, on the
          briefs).

          Rebecca J. Livengood argued the cause for
          amicus curiae American Civil Liberties Union
          of New Jersey (Edward L. Barocas, Legal
          Director, attorney; Ms. Livengood, Mr.
          Barocas, Alexander R. Shalom, and Jeanne M.
          LoCicero, on the brief).


     JUSTICE LaVECCHIA delivered the opinion of the Court.

     This appeal concerns the applicability of qualified

immunity to a claim brought under the New Jersey Civil Rights

Act (NJCRA), N.J.S.A. 10:6-1 to -2, against a State Police

detective named in his individual and official capacity.1




1  One defendant remains in this matter. All other defendants
have been dismissed and all federal claims, which had been
removed to federal court, were dismissed with prejudice.
                                2
    Plaintiff Denise Brown filed this NJCRA action claiming

that her state constitutional rights were violated in 2008 when

the defendant State Police officer accompanied her into her

apartment, without a warrant and without her consent, in order

to secure the premises while awaiting the issuance of a search

warrant.   Given the options, Brown had declined to grant consent

to search her apartment to the two officers who were present and

refused to allow the officers to secure the apartment from

outside.   The parties agree that there was probable cause to

believe that Brown had evidence in her home and, in fact, a

search warrant was obtained later that day.    The officers were

in search of evidence of a burglary for which Brown’s boyfriend

was a suspect, and the officers had reason to believe that a

stolen locket necklace had been given to Brown.

    To determine whether qualified immunity applies here, two

inquiries are pertinent:    (1) were plaintiff’s constitutional

rights violated when the officers insisted that plaintiff be

accompanied by an officer inside her apartment in order to

secure the premises and its contents while awaiting the search

warrant, and (2) was the constitutional right being violated

clearly established at the time so that any reasonable officer

acting competently in the circumstances would have known of the

constitutional violation.    The second prong of the inquiry

shields a law enforcement officer who has engaged in a violation

                                  3
but does so when acting reasonably under color of law.    However,

if the officer knew, or objectively should have reasonably

known, that he was engaged in a violation of a clear

constitutional right, then his unreasonable behavior disentitles

the officer to immunity from liability for his actions.

    In reviewing the actions that took place in 2008, we

declare them to be inconsistent with the protections in Article

I, Paragraph 7 of our State Constitution.   A law enforcement

officer, without a warrant and without consent, may not lawfully

insist on entering a residence based on an assertion that

exigent circumstances require the dwelling to be secured.

    However, in light of the context in which these

circumstances arose -- i.e., the lack of clarity in the law

governing the lawful means by which law enforcement may secure a

home pending issuance of a warrant and, significantly, that

law’s intersection with the law governing the exigent

circumstances exception to the warrant requirement -- we

conclude that defendant did not violate a “clearly established”

right when he entered Brown’s home to secure it.   Therefore, we

hold that qualified immunity applies and that Brown’s claim

against the remaining defendant officer was properly dismissed

by the trial court.

                               I.

                               A.

                                4
    This matter proceeded to trial.    Although the defense of

qualified immunity was discussed at various points during the

proceedings, the issue was not fully resolved pre-trial because

the court sent to the jury disputed factual matters that were

relevant to the issue before determining the qualified immunity

question.   We therefore recite the facts as presented and found

at trial.

    The events underlying this appeal relate to a State Police

investigation of a Cape May County home invasion that occurred

in October 2008.   According to victims and eyewitnesses, two men

with handguns forcibly entered a home, stole jewelry and other

belongings, and fled in a blue BMW, hauling away stolen goods in

a black drawstring bag.

    A few weeks later, on November 12, 2008, plaintiff Denise

Brown loaned her blue BMW to her boyfriend, Carlos Thomas.       At

the time, the State Police suspected that Thomas was involved in

the burglary.   On that date, officers of the Vineland Police

Department conducted a traffic stop of the blue BMW, which

Thomas was driving, arrested Thomas for driving with a suspended

license, and impounded Brown’s vehicle.    Later that day, the

State Police charged Thomas in connection with his alleged

involvement in the home invasion.    The same day, a State Police

representative notified Brown of Thomas’s arrest and that the

State Police had her vehicle.

                                 5
     The State Police kept Brown’s impounded vehicle at

headquarters for the next week while continuing to investigate

the Cape May County case.     On the evening of November 19, State

Police Detective Christian Eskridge obtained a warrant to search

Brown’s car.     That evening, he telephoned Brown to inform her

that her car would be searched.        Detective Eskridge offered to

drive Brown to the police station after the search was executed

so she could retrieve her car.

     On November 20, Detective Eskridge searched Brown’s car and

found contraband, a gun holster, and other items, including

jewelry, linking the car to the home invasion.       During the

investigation into the burglary, the State Police received a tip

that Thomas had given Brown a locket reported as stolen during

the break-in.    The locket was not among the jewelry found in the

search of Brown’s car.     As a result, Detective Eskridge

determined that the investigation should include a search of

Brown’s home.2




2  Detective Eskridge testified that, consistent with the
Assistant Prosecutor’s advice, “the best bet was to execute the
search warrant on the car first” to “obtain additional evidence
that [would] build[] the [probable cause] for her apartment.”
Detective Steet’s testimony, aligned with that of Detective
Eskridge, indicated that the officers lacked probable cause to
search Brown’s home until after the search of her car had been
completed. As noted, the search of Brown’s car did not take
place until the morning of November 20, sometime before 10 a.m.
                                   6
    Detective Eskridge was already scheduled that morning to

bring Brown to pick up her car; he decided not to first seek a

search warrant but instead to ask Brown if she would consent to

a search of her home when he went to pick her up.     Detective

John Steet of the State Police accompanied him.     Detective

Eskridge explained that if Brown refused consent, he would then

proceed to seek a search warrant, securing the premises in the

interim by either preventing Brown from entering the home or

allowing her access, accompanied by police, to prevent loss or

destruction of evidence.

    The detectives arrived at Brown’s apartment at about 10:00

a.m. on November 20.   Brown had recently arrived home from work.

She encountered Detectives Eskridge and Steet outside her

apartment as she exited a neighbor’s apartment.     The detectives

told Brown that they had received a tip that Thomas had given

her a stolen locket and asked if she would consent to a search

of her home for the item.    She immediately refused and told the

officers to obtain a warrant if they wanted to search her

apartment.   The conversation outside the apartment lasted about

fifteen to twenty minutes.

    Detective Steet testified that Brown’s refusal to consent

after she learned that the detectives were looking for a stolen

locket made him fear that Brown would destroy evidence of the

locket if she were permitted to enter the apartment alone.      To

                                  7
prevent that possibility, the detectives told Brown that she

could either remain outside the apartment, which would be

secured by the officers from the outside,3 or enter the apartment

accompanied by a police escort.   Both detectives testified that

their offer to secure the premises in either of those two ways

was consistent with State Police training and approved by a

supervisor at the State Police who had been contacted.

     Brown chose to enter the apartment, and Detective Steet

followed her in.   Detective Eskridge left to obtain a search

warrant.   Other State Police officers arrived an hour later.

The officers remained in the apartment’s kitchen, with Brown,

while awaiting Eskridge’s return from obtaining the warrant from

the same Cape May County judge who issued the warrant to search

Brown’s car.   Because Brown’s apartment was in Cumberland

County, it took several hours for Eskridge to obtain the warrant

and return.

     At about 1:30 p.m., Brown left to report for work and the

officers exited with her.4   At approximately 4:00 p.m., Detective


3  Steet testified that Brown could have returned to her
neighbor’s apartment or the detectives could have taken her to
pick up her car, as originally intended. However, Brown wanted
to go into her own home, and she did not want to consent to a
search of her home.

4  During the time that the officers were in her home, Brown
required use of her lavatory. Detective Steet told Brown that
she could leave the apartment to use one off-premises, such as a
nearby public restroom or a neighbor’s bathroom, or she could
                                  8
Eskridge, armed with a search warrant, returned and searched the

apartment.   During the search, the officers found a black

drawstring bag -- like the one described by the victims and

eyewitnesses to the Cape May County home invasion -- but no

locket.

                                B.

    Brown commenced the instant matter by filing a complaint in

the Law Division against the State of New Jersey, Detectives

Steet and Eskridge, and other State Police and Vineland Police

Department officers.   Among others, Brown advanced an NJCRA

claim under N.J.S.A. 10:6-2(c), which provides a cause of action

for deprivation of “any substantive rights, privileges or

immunities secured by the Constitution or laws of this State,”



use her own bathroom but she would have to be accompanied by a
female officer. Brown, who had a medical condition, objected
and determined to use her own bathroom. A female Vineland
police officer was brought in to accompany her. Brown was
afforded no privacy during her use of the facilities. Pre-
trial, the motion court determined that the many disputed facts
over the type of search (visual, strip, or cavity) conducted by
the female officer during the bathroom encounter required the
denial of summary judgment to all officers (including Steet)
still on the premises when that incident occurred. Some
confusion, discussed infra, spilled over as to what other facts
would be presented to the jury relating to the qualified
immunity issues that were not resolved prior to trial. Brown’s
counsel did not pursue the issue at the time and allowed it to
be sorted out at trial. The bathroom incident was not the focus
of the qualified immunity issue eventually pursued on appeal.
This appeal focuses on entry into the apartment.


                                 9
alleging a violation of Article I, Paragraph 7 of the New Jersey

Constitution, which guarantees freedom from unreasonable

searches and seizures.5   She sought compensatory and punitive

damages, a declaratory judgment that defendants’ conduct

violated her rights, and injunctive relief, along with costs and

fees.   Defendants denied Brown’s allegations and raised

qualified immunity as a defense.

     Prior to trial, defendants moved for summary judgment,

which was granted for certain defendants, including Detective

Eskridge; however, the motion for summary judgment was denied as

to the State Police and Detective Steet.     The trial court

reserved decision on the remaining defendants’ qualified

immunity defense, determining to allow the jury to resolve

underlying material questions of fact, after which the court

would resolve remaining questions of law related to the immunity

defense.

     The jury returned a verdict in favor of defendants, finding

that Brown failed to prove that:     (1) the State Police lacked a

good reason to fear the destruction of evidence before seeking

the issuance of a warrant; (2) the State Police and Detective




5  Brown’s complaint also alleged a violation of the Fourth
Amendment of the United States Constitution, but that claim was
dismissed prior to trial. Brown v. State, 442 N.J. Super. 406,
416 n.4 (App. Div. 2015).

                                10
Steet failed “to reconcile . . . law enforcement needs with

[her] privacy interests”; (3) the State Police restricted her

movements by preventing her from leaving her apartment; and (4)

the State Police restricted “her movements for an unreasonable

period.”

    Brown’s motion for a judgment notwithstanding the verdict

(JNOV) was denied.

                                  C.

    On appeal, the Appellate Division affirmed the trial

court’s denial of Brown’s motion for JNOV as to the State

Police, but the panel reversed as to whether Detective Steet was

entitled to qualified immunity.    Brown v. State, 442 N.J. Super.

406, 410-11 (App. Div. 2015).

    The panel concluded that Detective Steet acted

unconstitutionally by entering Brown’s home without a warrant

because his entry was premised on invalid police-created

exigency, namely, the detectives’ disclosure to Brown of the

object of their search and their subsequent reliance on her

informed refusal of consent.    Id. at 417, 427-28.   The panel

rejected the argument that Steet’s entry was justified under

Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed.

2d 838 (2001), in which the United States Supreme Court found an

officer’s entry into the threshold of a home to monitor a

suspect’s movements pending issuance of a search warrant to be

                                  11
reasonable.   Brown, supra, 442 N.J. Super. at 421.   Rather, the

panel labelled this entry a severe intrusion upon Brown’s

constitutional privacy rights unsupported by genuine exigency to

justify the action.   Ibid.   Further, the panel identified the

officer’s warrantless entry into Brown’s home as a clear

violation of established precedent regarding the protection

provided by Article I, Paragraph 7 to privacy rights in a home.

Id. at 427.   Determining qualified immunity to be inapplicable,

the panel remanded for a determination of damages against

Detective Steet.   Id. at 427-28.

    The Attorney General filed a petition for certification to

this Court, which was granted.   225 N.J. 339 (2016).    We also

granted the motion of the American Civil Liberties Union of New

Jersey (ACLU-NJ) for leave to appear as amicus curiae.

                                 II.

                                 A.

    The State points to United States Supreme Court precedent

in arguing for reversal of the panel’s decision holding that

Detective Steet was not entitled to qualified immunity.

    In particular, the State contends that this case is

analogous to McArthur, which, the State argues, permits police

officers who have probable cause to believe that evidence will

be found within a home to offer occupants the choice of

remaining outside the residence while awaiting a search warrant

                                 12
or entering the home only with police accompaniment.     In support

of that legal interpretation, the State points to State v.

Wright, where this Court found unlawful an officer’s warrantless

entry into the defendant’s apartment at the behest of the

defendant’s landlord.   221 N.J. 456, 478-79 (2015).    Still, the

Court added in its discussion that the officer could have

lawfully “secure[d] the apartment or home from the outside, for

a reasonable period of time, if reasonably necessary to avoid

any tampering with or destruction of evidence” while awaiting

the warrant.   Id. at 478 (citing McArthur, supra, 531 U.S. at

334, 121 S. Ct. at 951-52, 148 L. Ed. 2d at 849).      Further, the

State argues that the Appellate Division erred when

characterizing this case as involving impermissible police-

created exigency because it arose from reasonable and

constitutional police conduct:   asking for consent to search, as

permitted by Kentucky v. King, 563 U.S. 452, 462, 466, 131 S.

Ct. 1849, 1858, 1860, 179 L. Ed. 2d 865, 876, 879 (2011).

Pointedly, the State does not argue exigent circumstances as the

basis for entry into Brown’s home.

    In sum, the State argues that Detective Steet is entitled

to qualified immunity because, even when viewed in the least

favorable light to the State’s argued position, New Jersey

precedent does not clearly establish that the detective’s

conduct in securing the premises was unconstitutional -- in

                                 13
particular, because it was based on “reasonable interpretations

of McArthur and King” and was authorized by “current police

training.”

                                  B.

    Brown seeks affirmance of the Appellate Division judgment

finding a violation of her state constitutional rights, and

therefore a violation of the NJCRA, because Detective Steet

entered her home without a warrant, exigent circumstances, or

consent.

    Brown fundamentally contends that the State’s reliance on

McArthur is unfounded, emphasizing that the McArthur Court

recognized that there can be no entry without a showing of

exigency.    See 531 U.S. at 331, 121 S. Ct. at 950, 148 L. Ed. 2d

at 847.     According to Brown, the State relies on impermissible

police-created exigency that cannot justify a warrantless entry

of the home.     She maintains that exigency arose only after the

detectives told Brown of the object of their search and after

Brown exercised her constitutional right to refuse consent to

the search.     Thus, on the issue of qualified immunity, Brown

argues that Detective Steet is not entitled to the defense

because it is well established that an officer may not

effectuate a warrantless entry into a home without genuine

exigency and that a refusal of consent does not create exigent

circumstances.

                                  14
    As amicus, the ACLU-NJ supports Brown’s position.      The

ACLU-NJ contends that the State Police lacked sufficient

exigency to enter Brown’s home without a warrant and urges this

Court not to expand exigent-circumstances law in a case such as

this, where a police officer told a person the object of his

search and then based a claim of exigency on the person’s

constitutional right to refuse to consent to entry of a home.

The ACLU-NJ maintains that such a holding would provide ill-

intentioned officers with a means by which to circumvent the

warrant requirement.

    The ACLU-NJ also counters the State’s assertion that

McArthur permits the detectives’ conduct here.    The ACLU-NJ

argues that the law enforcement interest in obtaining a stolen

locket from a non-suspect’s home is meager when compared to the

magnitude of the infringement on Brown’s privacy rights.    And,

the ACLU-NJ argues that Detective Steet should be denied the

defense of qualified immunity due to the unlawfulness of the

police conduct in disregarding Brown’s privacy interest in her

home, coupled with the disregard of the well-known rules

governing warrantless police entry into a home.

                              III.

                               A.

    The affirmative defense of qualified immunity protects

government officials from personal liability for discretionary

                               15
actions taken in the course of their public responsibilities,

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.”   Morillo v. Torres, 222 N.J. 104, 116 (2015)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396, 410 (1982)).    The defense “extends

to suits brought under . . . the Civil Rights Act, N.J.S.A.

10:6-1 to -2.”   Id. at 107-08.

    This state’s qualified immunity doctrine tracks the federal

standard, shielding from liability all public officials except

those who are “plainly incompetent or those who knowingly

violate the law.”    Id. at 118 (quoting Connor v. Powell, 162

N.J. 397, 409, cert. denied, Badgley v. Connor, 530 U.S. 1216,

120 S. Ct. 2220, 147 L. Ed. 2d 251 (2000)).    To ascertain

whether a governmental official, such as Detective Steet, is

entitled to qualified immunity requires inquiries into whether:

(1) the facts, “[t]aken in the light most favorable to the party

asserting the injury[] . . . show the officer’s conduct violated

a constitutional right”; and (2) that constitutional “right was

clearly established” at the time that defendant acted.     Saucier

v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d

272, 281 (2001); see Schneider v. Simonini, 163 N.J. 336, 354-55

(2000) (“The ‘clearly established law’ requirement . . .

obligates a court to judge an official’s conduct based on the

                                  16
state of the law and facts that existed at the time of the

alleged statutory or constitutional violation.” (citing Anderson

v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L.

Ed. 2d 523, 530 (1987))), cert. denied, 531 U.S. 1146, 121 S.

Ct. 1083, 148 L. Ed. 2d 959 (2001).   Either of the two prongs

may be considered first.   Morillo, supra, 222 N.J. at 118.

                                B.

    Ordinarily, application of the defense of qualified

immunity is a legal question for the court rather than the jury;

therefore, the defense should be raised and resolved “long

before trial.”   Schneider, supra, 163 N.J. at 356 (quoting

Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 537, 116 L.

Ed. 2d 589, 596 (1991)).   Qualified immunity relieves an

eligible defendant from the burden of trial.   See, e.g., Pearson

v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172 L. Ed.

2d 565, 573 (2009) (noting “the importance of resolving immunity

questions at the earliest stage in litigation” (quoting Hunter,

supra, 502 U.S. at 227, 112 S. Ct. at 536, 116 L. Ed. 2d at

595)).

    An exception to that rule arises when the case involves

disputed issues of fact.   Schneider, supra, 163 N.J. at 359.    In

such a circumstance, the case may be submitted to the jury to

determine “the who-what-when-where-why type of historical fact

issues,” after which the trial judge may incorporate those

                                17
findings in determining whether qualified immunity applies.

Ibid. (internal quotation marks omitted).

                                 C.

    In this matter, defendants raised the defense of qualified

immunity in connection with their motion for summary judgment,

arguing that McArthur applied and provided “the only clearly

established, constitutional standard” relevant to the facts.

Following argument on the motion, the trial court concluded that

a factual dispute existed regarding the circumstances of

restricting Brown’s private use of her lavatory and the

contested search that took place there when accompanied by a

female police officer.    The trial court determined to grant the

motion for summary judgment for the defendants who were “not

present when that . . . observation was made in the bathroom,”

but denied the motion, as presented, for those officers,

including Detective Steet, who were still present in Brown’s

home at the time of the lavatory incident.    The record does not

clearly indicate that the trial court made a ruling as to the

legality of the initial entry into Brown’s apartment prior to

trial; however, it is clear that the case proceeded to trial on

factual issues also associated with the entry into the

apartment.

    Ultimately, the question of qualified immunity was

determinative at trial.   The trial court placed on the verdict

                                 18
sheet four issues related to an application of McArthur to the

facts of this matter, stating its intention to have the jury

decide those issues so that the court could “get an idea

factually, historically, because of an argument of qualified

immunity,” and that once that verdict sheet was returned, the

court would “determine the law on the issue of qualified

immunity.”     The court stated that “the entry and whether or not

there was an illegal seizure, temporary as it may have been,

pending the warrant, is something I think that we’re going to

let the jury determine.”     In addition, in determining to charge

the jury on McArthur and exigency, the court again stated that

if the jurors conclude that the officers “were there and they

had a right to be there . . . then the case ends . . . from the

jury’s standpoint.”

    The issue of qualified immunity took an unusual route in

this matter.    In the future, it would be more helpful for

proceedings to identify with transparency the reasons for

delaying a decision on qualified immunity.     Because no motions

were made or appeals taken at the time qualified immunity issues

were left for the jury, we do not and cannot now weigh in on the

propriety of that procedure in light of the facts of this case.

                                 IV.

    Here, Brown alleges that the police entry into her

apartment violated the right our Constitution bestows on New

                                  19
Jerseyans “to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.”    N.J.

Const. art. I, ¶ 7.    Under that provision, “a warrantless search

is presumptively invalid,” State v. Gonzales, 227 N.J. 77, 90

(2016) (quoting State v. Edmonds, 211 N.J. 117, 130 (2012)),

“unless [the search] falls within one of the few well-delineated

exceptions to the warrant requirement,” State v. Maryland, 167

N.J. 471, 482 (2001) (alteration in original) (quoting State v.

Citarella, 154 N.J. 272, 278 (1998); citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed.

2d 854, 858 (1973)).

                                 A.

    New Jersey law establishes that one exception to the

warrant requirement of Article I, Paragraph 7 is a search

justified by probable cause and exigent circumstances.    The

Attorney General does not cite the exigency exception to the

warrant requirement as a grounds for the officer’s entry into

Brown’s apartment; in fact, the Attorney General has expressly

conceded that, on these facts, “the officers could not have

relied on exigent circumstances to search Brown’s home while

they awaited the warrant.”

    Instead, the Attorney General argues that the entry was

lawful under United States Supreme Court case law that has



                                 20
specifically addressed the propriety of securing premises from

within to preserve evidence while a search warrant was sought.

       In a 1984 case, the United States Supreme Court splintered

on that pertinent issue.     Segura v. United States, 468 U.S. 796,

104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984).    In Segura, supra,

police officers had probable cause to believe that they would

find drugs in an apartment, but no warrant to conduct a search.

Id. at 800, 810, 104 S. Ct. at 3383, 3388, 82 L. Ed. 2d at 605,

612.    To prevent the loss of the drug evidence, the officers

“secure[d] the premises” from within, leading to a nineteen-hour

occupation of the vacant apartment.     Id. at 800-01, 104 S. Ct.

at 3383, 82 L. Ed. 2d at 605-06.

       Two Justices concluded that, assuming the existence of

exigency, “securing a dwelling, on the basis of probable cause,

to prevent the destruction or removal of evidence while a search

warrant is being sought is not itself an unreasonable seizure of

either the dwelling or its contents.”     Id. at 810, 104 S. Ct. at

3388, 82 L. Ed. 2d at 612.    However, four Justices concluded

that the “prolonged occupation” was unconstitutional because it

“inevitably involved scrutiny of a variety of personal effects

throughout the apartment” and allowed the officers to

“exercise[] complete dominion and control over the apartment and

its contents.”   Id. at 820-24, 104 S. Ct. at 3393-96, 82 L. Ed.

2d at 618-22.    Ultimately, Segura did not provide a controlling

                                  21
opinion on whether officers may secure a residence from the

inside, or outside, while awaiting a search warrant.

       Confusion engendered by Segura was alleviated to some

degree by the Supreme Court’s decision in McArthur, supra, 531

U.S. at 331-33, 121 S. Ct. at 950-51, 148 L. Ed. 2d at 848-49,

which held that a police officer was justified in temporarily

preventing a defendant from entering his home until a search

warrant issued.

       In McArthur, two police officers were at the defendant’s

mobile home on a domestic matter when the defendant’s wife

suddenly revealed that the defendant had hidden “some dope

underneath the couch.”    Id. at 329, 121 S. Ct. at 948–49, 148 L.

Ed. 2d at 846.    After one officer requested and was denied

consent to search the defendant’s trailer, the other officer

left to obtain a search warrant; during that interval, the

remaining officer refused to permit McArthur to re-enter his

home alone.   Id. at 329, 121 S. Ct. at 949, 148 L. Ed. 2d at

846.    For two hours, McArthur was unable to enter his own home

unaccompanied -- when he was allowed to enter the trailer to

retrieve cigarettes and make a phone call, the officer “stood

just inside the door to observe what [McArthur] did.”     Id. at

328, 329, 121 S. Ct. at 948, 949, 148 L. Ed. 2d at 846.

       The Supreme Court concluded that the officer’s conduct in

securing the defendant’s home did not violate the Fourth

                                 22
Amendment based on the circumstances, which included:   (1)

probable cause to believe that the officer would find contraband

in McArthur’s home; (2) the officer’s reasonable belief that

McArthur, who saw his wife speak to the police upon exiting the

trailer, would destroy the contraband if permitted to enter the

home alone; (3) reasonable efforts by the officer to balance the

need of law enforcement against McArthur’s privacy interest; and

(4) a period of restraint that “was no longer than reasonably

necessary for the police, acting with diligence, to obtain the

warrant.”   Id. at 331-33, 121 S. Ct. at 950-51, 148 L. Ed. 2d at

848-49.   Significantly, the Court noted that the officer

“stepped inside the trailer’s doorway” to monitor McArthur’s

movement only because McArthur chose to enter the home “for his

own convenience,” and referred to that restraint as minimally

intrusive, especially when compared to a warrantless arrest or

search.   Id. at 335-36, 121 S. Ct. at 952-53, 148 L. Ed. 2d at

850-51.

    Again, to the extent that Segura and McArthur can be argued

to justify a discrete set of warrantless home entries pending

receipt of a requested warrant, they do so specifically in

connection with “a plausible claim of specially pressing or

urgent law enforcement need, i.e., ‘exigent circumstances.’”

Id. at 331, 121 S. Ct. at 950, 148 L. Ed. 2d at 847.    There is,

therefore, a necessary overlap between home entries pursuant to

                                23
McArthur and those pursuant to the exigent circumstances

exception to the warrant requirement, which also involves a

showing of exigency to justify a home entry.   See, e.g., State

v. Bolte, 115 N.J. 579, 585-86 (recognizing that combination of

probable cause and exigency “may excuse police from compliance

with the warrant requirement”), cert. denied, 493 U.S. 936, 110

S. Ct. 330, 107 L. Ed. 2d 320 (1989).

    The potential conflation of the two exceptions renders the

qualified immunity analysis in this appeal particularly

challenging; we therefore hew closely to the Attorney General’s

focused reliance on the asserted McArthur justification, and

consider how New Jersey courts have addressed the specific

circumstances of securing premises during the interval in which

a warrant is sought.

                               B.

    In the seven years between the decision in McArthur and the

conduct at issue in this case, this Court did not opine on the

constitutionality of seizing a home by securing it and

preventing all access, or alternatively entering it with the

occupant, while awaiting a search warrant.

    Appellate court decisions that considered the issue have

not advanced a uniform interpretation of the law.   Some panels

have held that a seizure of a premises from the outside pending

a search warrant, even absent exigent circumstances, is

                               24
permissible.   See State v. Josey, 290 N.J. Super. 17, 29 (App.

Div.), certif. denied, 146 N.J. 497 (1996); State v. De Lane,

207 N.J. Super. 45, 50 (App. Div. 1986).   Other panels have

permitted entry into a home to secure evidence to be found

therein pending a warrant when coupled with exigent

circumstances.   See, e.g., State v. Myers, 357 N.J. Super. 32,

36, 39 (App. Div. 2003) (upholding seizure of home from within

due to likelihood that defendant, who was aware of

investigation, would destroy evidence; lack of knowledge of

defendant’s whereabouts; and officers’ safety concerns).

Finally, at least one trial court within the state has held that

officers may enter a home to secure it without any showing of

exigency at all, so long as they have probable cause to suspect

evidence will be found in the residence.   State v. Speid, 255

N.J. Super. 398, 403 (Law Div. 1992) (“The police may, with

probable cause, enter a home to secure it while a search warrant

is obtained.” (citing Segura, supra, 468 U.S. 796, 104 S. Ct.

3380, 82 L. Ed. 2d 599)).

    Aside from the pending-warrant issue, however, New Jersey

precedent generally regarding entry into a home to preserve

evidence was not opaque as of 2008.   Warrantless entry by a

police officer into a residence was not permitted unless the

officer obtained the occupant’s consent or could demonstrate

both probable cause and exigent circumstances.   See State v.

                                25
Hutchins, 116 N.J. 457, 463 (1989).     Likewise, case law prior to

2008 suggested that the ideal procedure for the officer who

lacks exigency would be to secure a home from the outside.       See

State v. Stott, 171 N.J. 343, 349-51, 360 (2002); State v.

Lewis, 116 N.J. 477, 480, 487–88 (1989); State v. De La Paz, 337

N.J. Super. 181, 198 (App Div.), certif. denied, 168 N.J. 295

(2001).     But see State v. Alvarez, 238 N.J. Super. 560, 571

(App. Div. 1990) (concluding that warrantless entry into hotel

room to prevent destruction of evidence was constitutional

because, “unlike a private home, the ability of police officers

to secure or continue a surveillance of a hotel room poses

peculiar risks”).

                                  C.

    We have recently touched on issues presented in Segura and

McArthur.    In 2015, this Court was asked to consider whether a

police officer acted unconstitutionally when he entered and

searched the absent-defendant’s home at the request of the

defendant’s landlord, a third party, who had found contraband in

the apartment.    Wright, supra, 221 N.J. at 459, 461-62.   That

decision focused on the extension of the third-party

intervention doctrine to a situation involving a home, and our

Court noted that “[t]he proper course under the State and

Federal Constitutions” in that circumstance is to rely on the

information provided by a third-party to apply for a search

                                  26
warrant and then, “[i]n the time it takes to get the warrant,

. . . secure the apartment or home from the outside, for a

reasonable period of time, if reasonably necessary to avoid any

tampering with or destruction of evidence.”   Id. at 478 (citing

McArthur, supra, 531 U.S. at 334, 121 S. Ct. at 951-52, 148 L.

Ed. 2d at 849).

     Relatedly, we also recently instructed that an officer may

not insist on accompanying an individual who seeks to enter his

home in order to obtain requested credentials.   In State v.

Legette, a police officer conducting a Terry6 investigation asked

the detained defendant for identification, stated that he “would

have to accompany [the defendant] to his apartment” to retrieve

it, and then entered the defendant’s apartment to monitor the

defendant’s movements, allegedly for the officer’s safety.      227

N.J. 460, 464-65 (2017).   This Court held that the officer’s

conduct was unconstitutional because law enforcement personnel

conducting Terry investigations may only act to protect

themselves during that limited encounter, and that aim would not

be furthered by warrantless entry into a detainee’s home.      Id.

at 473.

     In sum, the latest guidance in this general area has

ratified the preeminent requirement of a warrant, or clearly


6  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968).
                                27
granted consent, before an officer may accompany an individual

into the recesses of her home.   Exigency creates its own sets of

rules, depending on the exception to the warrant requirement

relied upon.

    Although we include that guidance for completeness, it

cannot inform our analysis of the officers’ conduct in this case

because it came years after the contested home entry.    Once

again, determination of the existence of whether a

constitutional right was clearly established and violated

depends, for purposes of qualified immunity analysis, on the

state of the law at the time of the alleged violation.

                                 V.

    Applying these legal principles to the facts of this case,

Detective Steet will be entitled to qualified immunity so long

as New Jersey law did not “clearly establish[] that [his]

conduct was unlawful in the circumstances.”   Saucier, supra, 533

U.S. at 201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281.    To make

that determination, we must assess whether, on November 20, 2008

(the date of the entry into Brown’s home), the law was

“sufficiently clear that a reasonable official” in Detective

Steet’s position would have known that the warrantless entry

violated Brown’s rights.   Anderson, supra, 483 U.S. at 640, 107

S. Ct. at 3039, 97 L. Ed. 2d at 531.



                                 28
    The Attorney General argues that Detective Steet relied on

McArthur when he asked Brown to choose between not entering her

home, letting the detective secure it from the outside, or

entering with an officer who would secure it from the inside.

In doing so, consistent with police training and supervisor

approval in these circumstances, the State maintains that Steet

acted reasonably -- not incompetently or knowingly wrongfully --

and should be entitled to the benefit of qualified immunity.

    Given McArthur’s ambiguity, this Court’s lack of precedent

regarding McArthur and Segura, and inconsistent interpretations

of those cases by the Appellate Division, we are compelled to

recognize the force of the State’s argument that the parameters

of a permissible seizure of a home pending a search warrant were

not clearly established within New Jersey when Detective Steet

acted, such that a reasonable officer in his position would not

have known that his conduct was unlawful.    Saucier, supra, 533

U.S. at 202, 121 S. Ct. at 2156, 150 L. Ed. 2d at 282; see,

e.g., Morillo, supra, 222 N.J. at 120 (finding qualified

immunity applied in context of ambiguous application of

statutory exemption).

    As of November 20, 2008, neither McArthur itself nor any

strain of New Jersey case law interpreting McArthur defined the

boundaries within which an officer must abide when securing a

residence while awaiting a search warrant.   First, McArthur

                               29
clearly holds that an officer may secure a home from the outside

by preventing a suspect’s reentry to preserve evidence that the

officer has reason to believe is within the home while he awaits

a search warrant.   McArthur, supra, 531 U.S. at 328, 121 S. Ct.

at 948, 148 L. Ed. 2d at 846.   In support of that holding, the

Court cited Segura, in which both the majority and minority of

the Court agreed that officers seeking to secure a home “might

lawfully have sealed the apartment from the outside, restricting

entry into the apartment while waiting for the warrant.”     Id. at

333, 121 S. Ct. at 951, 148 L. Ed. 2d at 849 (emphases added).

    Yet, McArthur does not foreclose the possibility that

officers might lawfully enter a home to secure it when the

occupant, as here, insists on entry.    The Court noted that the

officer on the scene prevented McArthur from entering his home

“unless a police officer accompanied him,” but the Court did not

explicitly and separately address whether the officer could have

“accompanied” McArthur into the residence.    Id. at 329, 121 S.

Ct. at 949, 148 L. Ed. 2d at 846.    In fact, while awaiting a

warrant, the officer twice monitored McArthur from inside the

door, which the Court labeled an “observation.”    Id. at 329,

335, 121 S. Ct. at 949, 952, 148 L. Ed. 2d at 846, 850.

Moreover, the Supreme Court noted that the limited entry avoided

“significant intrusion into the home itself,” and cited as

support Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371,

                                30
1379–80, 63 L. Ed. 2d 639, 650 (1980), and United States v.

United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125,

2134, 32 L. Ed. 2d 752, 764 (1972), both of which recognize that

“physical entry of the home is the chief evil against which the

. . . Fourth Amendment is directed.”       Id. at 331, 121 S. Ct. at

950, 148 L. Ed. 2d at 847-48.

       Finally, in ranking the various “intrusions,” the Court

held that it would be a greater intrusion to enter a home to

conduct a warrantless arrest or search than to “[t]emporarily

keep[] a person from entering his home,” id. at 336, 121 S. Ct.

at 953, 148 L. Ed. 2d at 851, and it would be a greater

intrusion to prohibit reentry altogether than to permit it

“conditioned on observation,” id. at 335, 121 S. Ct. at 952, 148

L. Ed. 2d at 850.     However, nowhere in that ranking, or in its

opinion, did the Court address the intrusion effected by a

warrantless entry to allow for extended observation, as in this

case.   Instead, McArthur’s “language leaves open to debate the

intended reach” of its new rule.       Morillo, supra, 222 N.J. at

123.

       Due to its inherent ambiguity on the subject at issue,

McArthur does not clearly establish that Detective Steet acted

unlawfully when he entered Brown’s home to secure it from

within.   See ibid.    It is likewise not clearly established by

McArthur whether Detective Steet could offer Brown the choice of

                                  31
awaiting the warrant outside of her home or inside the home with

police accompaniment.

     Second, because the scope of McArthur’s holding “remains

unsettled by any interpretive decision by [New Jersey] courts,”

Detective Steet cannot fairly be regarded as violating clearly

established state law when he entered Brown’s home to secure it

pending issuance of a search warrant.   Ibid.   As of November

2008, this Court had neither interpreted McArthur nor defined

the extent of permissible police activity under the New Jersey

Constitution in light of McArthur.   Although we cited McArthur

in Wright, supra, as support for the proposition that, rather

than enter a home without a warrant, an officer should secure

the premises from the outside, the Court did not decide Wright

until 2015; therefore, although Wright directs a limited

application of McArthur under the New Jersey Constitution, its

guidance was not available to Detective Steet at the time of his

conduct.   221 N.J. at 478 (citing McArthur, supra, 531 U.S. at

334, 121 S. Ct. at 951–52, 148 L. Ed. 2d at 849).7



7  The only New Jersey precedent to have cited McArthur by 2008
was State v. Nikola, which referenced McArthur in support of the
seizure of a person, rather than a home, before holding that an
officer did not require an arrest warrant to enter the
defendant’s garage because she had already been seized during a
temporary investigative detention at the time of entry. 359
N.J. Super. 573, 583, 586 (App. Div.), certif. denied, 178 N.J.
30 (2003).

                                32
    Likewise, as of 2008, this Court had not weighed in on

Segura’s competing analyses regarding an officer’s occupation of

a home while awaiting a search warrant.   The few published

Appellate Division decisions interpreting and applying Segura

did so inconsistently.   As noted previously, one panel

determined that an officer acted reasonably in securing a home

from within, Myers, supra, 357 N.J. Super. at 39, but two others

held that such conduct would be unconstitutional if the facts

lacked sufficient exigency, Josey, supra, 290 N.J. Super. at 29,

or if the officers could have secured the home from the outside,

De Lane, supra, 207 N.J. Super. at 50.    Although one Law

Division decision interpreted Segura to allow warrantless

occupation of a home pending issuance of a search warrant, even

without exigent circumstances, Speid, supra, 255 N.J. Super. at

403, no published appellate decision has favorably cited Speid

for that proposition.

    Based on the lack of New Jersey case law interpreting

McArthur or clearly addressing the propriety of seizure of a

home from within in order to secure evidence, we find that New

Jersey’s precedent was not sufficiently clear to support a

conclusion that Detective Steet violated “clearly established

law” when he entered Brown’s home to secure it.    Morillo, supra,

222 N.J. at 123.



                                33
       Finally, we note that, although police department policies

do not hold compelling weight in a qualified immunity analysis,

see City & County of San Francisco v. Sheehan, 575 U.S. ___, 135

S. Ct. 1765, 1777–78, 191 L. Ed. 2d 856, 870 (2015), Detective

Steet’s reliance on State Police training and policy is of some

value.    The Supreme Court has found such policies “important to

[the Court’s] conclusion” regarding qualified immunity when “the

state of the law” at the time of the challenged conduct “was at

best undeveloped.”    Wilson v. Layne, 526 U.S. 603, 617, 119 S.

Ct. 1692, 1700–01, 143 L. Ed. 2d 818, 832 (1999).    When that is

the case, “it [is] not unreasonable for law enforcement officers

to look and rely on their formal . . . policies.”    Id. at 617,

119 S. Ct. at 1700–01, 143 L. Ed. 2d at 832.

       Here, Detective Steet’s supervisor, Sergeant Perry,

testified at trial that the State Police have an adopted policy

of allowing officers, who are securing a home pending the

issuance of a search warrant, to await the warrant inside the

home if the occupant chooses to do so.    Although not

determinative or of controlling weight, we find the existence of

such policy to be informative when determining the

reasonableness of Detective Steet’s conduct, who relied on his

police training when confronted with this unsettled area of the

law.   See ibid., 119 S. Ct. at 1700–01, 143 L. Ed. 2d at 832.



                                 34
    In conclusion, we hold that Detective Steet is entitled to

qualified immunity as to Brown’s NJCRA claim because regardless

of whether his conduct amounts to a violation of a

constitutional right, that right was not clearly established at

the time that he acted.     See Pearson, supra, 555 U.S. at 227,

129 S. Ct. at 813, 172 L. Ed. 2d at 570 (declining to consider

constitutional violation prong based on finding no violation of

clearly established law).

                                 VI.

    Although our finding with respect to the State’s McArthur

argument resolves this matter, we pause to add clearer guidance

going forward.

    New Jersey recognizes the exigency exception to the warrant

requirement.   In a case of true exigency and probable cause, the

police can enter a dwelling.    However, police-created exigency

“designed to subvert the warrant requirement” has long been

rejected as a basis to justify a warrantless entry into a home,

in comparison to exigency that arises “as a result of reasonable

police investigative conduct intended to generate evidence of

criminal activity,” which can justify entry.    Hutchins, supra,

116 N.J. at 460, 470; see also State v. Walker, 213 N.J. 281,

295 (2013).    Further, invocation of a person’s constitutional

right to refuse an officer’s request for a consent search “is

not probative of wrongdoing and cannot be the justification for

                                  35
the warrantless entry into a home.”     State v. Frankel, 179 N.J.

586, 611, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed.

2d 128 (2004); accord State v. Domicz, 188 N.J. 285, 306-09

(2006).

    The State does not rely on exigency to justify entry into

Brown’s home for good reason:    police-created exigency cannot

form a basis to enter a residence to secure it.    In light of our

precedent, Detective Steet could not justify entry into Brown’s

home by notifying her that he was looking for a gold locket

necklace as part of a criminal investigation and then relying on

her refusal to consent.   In other words, Detective Steet could

not rely on Brown’s decision to refuse consent, informed by her

newly acquired knowledge of the object of the officers’ search,

as “justification for [his] warrantless entry into [her] home,”

in violation of her rights.     Frankel, supra, 179 N.J. at 611.   A

person answering her door and faced with a request by a law

enforcement officer for consent to search her home for a

specific item has every right to say no and shut the door.    A

person asked that question outside her home, in her yard, on her

sidewalk, or on her front steps has the equivalent right to walk

away, enter her home, and decline the officer the right to




                                  36
enter.8   We reaffirm the primacy of one’s privacy rights in a

home.

     Also, in the future, law enforcement officials may not rely

on McArthur to enter an apartment to secure it while awaiting a

search warrant.   Although McArthur does not explicitly permit or

forbid entry into a home under those circumstances, our ruling

today makes clear that officers may not do so.   They must get a

warrant and, if reasonably necessary, may secure the apartment

for a reasonable period of time from the outside.   As a result,

because the Attorney General argues, fairly, that reliance on an

understanding of McArthur and its reach justified Detective

Steet’s entry into Brown’s home in order to secure it from

within and because New Jersey’s interpretation of McArthur was

not clearly established at the time of his conduct, we conclude

that Detective Steet is entitled to qualified immunity.

                               VII.




8  Here, the State cites King, supra, 563 U.S. at 466, 131 S. Ct.
at 1860, 179 L. Ed. 2d at 879, to argue that the exigency that
arose in this matter was not impermissible police-created
exigency because the detectives lawfully chose to obtain consent
to search Brown’s apartment rather than seek a search warrant.
However, this Court finds that argument unpersuasive, as the
detectives here did not merely seek Brown’s consent, but
informed her of the object of their search in doing so and then
relied on her refusal to find exigency. In any event, because
King was decided in 2011, three years after the events at issue,
this Court does not consider that case when analyzing Detective
Steet’s conduct.
                                37
    The judgment of the Appellate Division is reversed, and the

trial court’s dismissal of this action against Detective Steet

is reinstated.



     CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion.




                               38
                                    SUPREME COURT OF NEW JERSEY
                                      A-71 September Term 2015
                                               076656


DENISE BROWN,

Plaintiff-Respondent,

          v.

STATE OF NEW JERSEY and JOHN
STEET, DETECTIVE (NJSP), both
in his individual and
official capacity as New
Jersey State Police
Detective,

Defendants-Appellants,

    and

RICK FUENTES, COLONEL, both
in his individual and
official capacity as
Superintendent of New Jersey
State Police, CHRISTIAN
ESKRIDGE, TROOPER (NJSP),
both in his individual and
official capacity as New
Jersey State Trooper, CITY OF
VINELAND, TIMOTHY CODISPOTI,
both in his individual and
official capacity as Vineland
Chief of Police, JOSEPH
VALENTINE, both in his
individual and official
capacity as Vineland Police
Sergeant, DAVID HENDERSCOTT,
OFFICER, both in his
individual and official
capacity as Vineland Police
Officer, OFFICER SMITH, both
in his individual and
official capacity as Vineland
Police Officer, and OFFICER
                                1
SOTO, both in her individual
and official capacity as
Vineland Police Officer,

Defendants.


JUSTICE ALBIN, dissenting.

     The constitutional protection against the unreasonable

search and seizure of a home is enshrined in the 1791 Federal

Bill of Rights and our 1844 State Constitution.1    The Founders

put in place checks against the abuse of governmental authority

to ensure the sanctity of the home.    Since the beginning of the

Republic, our constitutional jurisprudence has forbidden law

enforcement officials from seizing or entering a home without a

warrant, subject to very limited exceptions.     In the modern era,

the warrantless seizure or entry of a home is impermissible

absent consent or exigent circumstances.     That simple

formulation of the Fourth Amendment and Article I, Paragraph 7

of the New Jersey Constitution has been clear for decades.     It

should have been clear to the State Police detective who

trampled on Denise Brown’s rights in 2008.

     The police had reason to believe that Brown was given a

stolen locket.   She was not suspected of committing a theft or

knowingly receiving stolen property.    The police had sufficient



1
 N.J. Const. art. I, ¶ 6 (1844). The 1844 provision was the
same as the current Article I, Paragraph 7. N.J. Const. art. I,
¶ 7.
                                 2
time to secure a warrant for the search of her home, but chose

instead to attempt to obtain her consent to search.   She

lawfully exercised her right to deny the police consent to

rummage through every drawer in her home in search of the

locket.   For exercising that right, the police seized her home

for six hours without a warrant, even though no exigent

circumstances justified their doing so.   Brown was rendered a

virtual prisoner in her own home, denied even the right to use

her bathroom beyond the prying eyes of a police officer, who

watched her perform the most private of sanitary functions.

    The Appellate Division found that Brown’s clearly

established constitutional right to be secure in her home and

person was violated and therefore she is entitled to damages for

the violation of her civil rights.   Brown v. State of New

Jersey, 442 N.J. Super. 406, 427-28 (App. Div. 2015).     The

majority agrees that the police violated her constitutional

right under our State Constitution but astonishingly concludes

that Brown’s right to be secure in her home was not clearly

established at the time.   The majority thus cloaks the offending

police officer with qualified immunity and denies Brown a remedy

under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.

    I dissent because there is no legitimate support in our

jurisprudence for the majority’s decision to deny Brown relief.

I dissent because this crabbed view of our Civil Rights Act will

                                 3
discourage claimants from seeking relief in our courts.      The

majority’s parsing of our case law does not do justice to the

clearly established right to be free from an unreasonable

seizure in one’s own home -- the most basic of all rights.

    I would affirm the Appellate Division and find that State

Police Detective John Steet violated Brown’s clearly established

right to be secure in her home from an unreasonable seizure.

                                  I.

    Here are the relevant facts.       Burglars entered a Cape May

County residence, stealing jewelry and other items and driving

off in a blue BMW.     “The home invasion was apparently a case of

drug dealers stealing from drug dealers.”      Id. at 411 n.2.     One

of the burglary suspects was Carlos Thomas, plaintiff Denise

Brown’s boyfriend.

    About two weeks later, on November 12, 2008, Brown loaned

Thomas her blue BMW.     That day, City of Vineland police officers

stopped the BMW, arrested Thomas for driving with a suspended

license, and impounded the car.    The State Police also charged

Thomas with the burglary and related offenses -- charges that

later would be dismissed.

    After Thomas’s arrest, the State Police received

information from the mother of the putative victim that Thomas

had given Brown a locket with diamonds that had been stolen

during the burglary.     The source of the mother’s information is
                                   4
not clear and may have been second- or third-hand hearsay.

Nothing in the record suggests that Brown had any participation

in the burglary.    Indeed, Brown denied ever receiving a locket

from Thomas, and the State Police never found the locket in her

apartment or on her person.

    A week later, on November 19, 2008, State Police Detective

Christian Eskridge secured a warrant to search Brown’s vehicle.

The next day, Detective Eskridge searched the vehicle,

uncovering jewelry (but no locket), drugs, and a holster that

fit the gun allegedly used in the burglary.     Detective Eskridge

decided that the next step would be to search Brown’s home.

Although Detective Eskridge had probable cause to apply for a

search warrant, he chose not to do so.    Instead, the plan was to

ask Brown for her consent to search her home.

    That same day, at about 10:00 a.m., State Police Detectives

Eskridge and John Steet encountered Brown outside her apartment.

They asked if she would consent to the search of her home for

the locket, and she refused.    She told the detectives that she

had no such locket and did not want them searching her “house on

hearsay.”    She told the detectives, “[G]o to the court and . . .

get legal documentation and you’re more than welcome to search

my house.”

    After Brown exercised her right to refuse consent, the

detectives gave her two unpalatable options:     lock and leave her
                                  5
apartment while they applied for a warrant or remain there under

the watchful eye of the police.     The detectives at trial

admitted that because they told Brown they were looking for the

locket, they now feared she might destroy it.     This self-created

exigency became the rationale for seizing Brown’s apartment,

even though the detectives conceded that they had no reason to

suspect that Brown was involved in any wrongdoing.

    Brown decided to stay in her home.     Detective Eskridge went

to the courthouse to apply for a warrant while Detective Steet -

- assisted by a number of back-up officers -- remained with

Brown.   For three-and-one-half hours, until she had to leave for

work, Brown was shadowed in her own home.     When Brown had to use

her bathroom to change a sanitary napkin, a female officer

accompanied her.   Brown was allowed no vestige of privacy.

    At 1:30 p.m., when Brown left for work, the State Police

secured the apartment from the outside.    At about 4:00 p.m., six

hours after the apartment was first seized, Detective Eskridge

returned with a search warrant.     The State Police entered the

apartment with a key provided by Brown’s mother.     The State

Police apparently searched every nook and cranny in the

apartment in a vain attempt to find the locket.     As noted

earlier, Brown was never charged with burglary, receiving stolen

property, or any related offense.

                                  II.
                                  6
     Brown filed suit against the State, Detective Steet, and

others under the New Jersey Civil Rights Act (CRA), alleging the

violation of her rights under Article I, Paragraph 7 of the

State Constitution.2   After the jury returned a verdict in favor

of the State and Detective Steet, the trial court denied Brown’s

motion for judgment notwithstanding the verdict (JNOV).    The

Appellate Division reversed the denial of the JNOV motion as to

Detective Steet because the evidence “indisputably” established

that the “entry into Brown’s residence before securing the

warrant was unlawful as a matter of law.”     Id. at 410-11.   More

specifically, the Appellate Division found that Detective Steet

was not entitled to qualified immunity because his “own

testimony establishes, unequivocally, that his warrantless entry

into Brown’s home without consent or exigent circumstances

violated her rights under our State Constitution” and because

the constitutional rights violated by Detective Steet were

clearly established at that time.     Id. at 427-28.

     The Appellate Division soundly decided that qualified

immunity did not apply to Detective Steet’s actions.

                               III.

                                A.



2
 The claims against other defendants were dismissed before or
after trial. In addition, all claims under the Fourth Amendment
were dismissed.
                                 7
    The CRA, like its federal corollary, 42 U.S.C.A. § 1983,

permits government officials to raise qualified immunity as a

defense.   “Qualified immunity is a doctrine that shields

government officials from a suit for civil damages when ‘their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’”   Gormley v. Wood-El, 218 N.J. 72, 113 (2014) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738,

73 L. Ed. 2d 396, 410 (1982)).

    “For a right to be clearly established, ‘[t]he contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’”

Ibid. (alteration in original) (quoting Anderson v. Creighton,

483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523, 531

(1987)).   Thus, “[o]fficials are expected to ‘apply general,

well-developed legal principles’ in ‘analogous factual

situations’” rather than “require ‘relatively strict factual

identity’ between applicable precedent and the case at issue.”

Id. at 114 (quoting Stoneking v. Bradford Area Sch. Dist., 882

F.2d 720, 726 (3d Cir. 1989)).

                                 B.

    Article I, Paragraph 7 of the New Jersey Constitution

provides “[t]he right of the people to be secure in their

persons [and] houses . . . against unreasonable searches and

                                 8
seizures, shall not be violated.”      N.J. Const. art. I, ¶ 7; see

also U.S. Const. amend. IV (same).      The “chief evil” against

which Article I, Paragraph 7 of our State Constitution and the

Fourth Amendment are directed is the unlawful entry of the home

by government officials.    State v. Walker, 213 N.J. 281, 289

(2013) (quoting State v. Hutchins, 116 N.J. 457, 462-63 (1989)).

Indeed, “[t]he sanctity of one’s home is among our most

cherished rights.”    State v. Frankel, 179 N.J. 586, 611, cert.

denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).

The search or seizure of a home without a warrant is

presumptively unreasonable and prohibited unless the police

possess probable cause and act under exigent circumstances or,

alternatively, receive the consent of the homeowner.        State v.

Johnson, 193 N.J. 528, 552 (2008).

       Consent is not an issue in this case.      Brown exercised a

fundamental constitutional right:      she refused to give the State

Police detectives consent to enter or search her apartment and

insisted they obtain a warrant.       See Frankel, supra, 179 N.J. at

611.    “The assertion of that constitutional right, which

protects the most basic privacy interests of our citizenry, is

not probative of wrongdoing and cannot be the justification for

the warrantless entry into a home.”       Ibid.

       No other exception to the warrant requirement permitted the

State Police to seize or enter Brown’s apartment.       Detective
                                  9
Steet cannot rely on the exigent-circumstances exception.     “For

purposes of a warrantless search, exigent circumstances are

present when law enforcement officers do not have sufficient

time to obtain any form of warrant.”    Johnson, supra, 193 N.J.

at 556 n.7.    For example, when police officers have probable

cause to conduct a search but insufficient time to secure a

warrant before the potential destruction of evidence,

exigent circumstances are present.     Hutchins, supra, 116 N.J. at

464.

       Here, the State Police detectives had probable cause to

apply for a warrant to search Brown’s apartment before they

arrived at Brown’s home and made their consent request.     Instead

of getting a warrant, however, they took the more convenient

path.    The search or seizure of a home cannot be justified by a

claim of exceptional or exigent circumstances when “[n]o reason

is offered for not obtaining a search warrant except the

inconvenience to the officers and some slight delay necessary to

prepare papers and present the evidence to a magistrate.”

Johnson v. United States, 333 U.S. 10, 14-15, 68 S. Ct. 367,

369, 92 L. Ed. 436, 440-41 (1948).

       The police, moreover, cannot create their own exigency to

bypass the warrant requirement.    See Hutchins, supra, 116 N.J.

at 475-76.    To satisfy the exigent circumstances exception, the

State must establish that the “exigent circumstances were not
                                  10
police-created.”   Walker, supra, 213 N.J. at 295.    The position

taken by Detective Steet is that once he and Detective Eskridge

disclosed to Brown that they needed to search her apartment for

a stolen locket, her denial of consent gave them a basis to

believe she would conceal or destroy potential evidence and

therefore a basis to secure the apartment.     That reasoning

suggests that the detectives not only drew an impermissible

inference that Brown would engage in wrongdoing from the

assertion of her constitutional right, but also created the very

exigency that justified their violation of the warrant

requirement.

    The majority agrees that exigency did not justify the

seizure of or entry into Brown’s apartment.     Ante at ___ (slip

op. at 36-37).   Nevertheless, the majority mistakenly suggests

that Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L.

Ed. 2d 838 (2001), left uncertain the law concerning when and

how police officers may secure a home while awaiting a warrant.

Ante at ___ (slip op. at 23-24).      A close look at McArthur,

however, reveals that the United States Supreme Court applied

garden-variety notions of exigency to justify the securing of

the home in that case.

                                IV.

    In McArthur, supra, for the purpose of keeping the peace,

two police officers accompanied Tera McArthur to the trailer
                                11
where she lived with the defendant -- her husband -- so she

could remove her belongings.     531 U.S. at 328, 121 S. Ct. at

948, 148 L. Ed. 2d at 846.   After Tera emerged from the trailer,

where the defendant was present, she told one of the officers

that the defendant had “dope” in the trailer and had just slid

some “underneath the couch.”     Id. at 329, 121 S. Ct. at 948-49,

148 L. Ed. 2d at 846.   That officer knocked on the trailer’s

door, told the defendant what his wife had said, and asked for

consent to search the trailer.     Id. at 329, 121 S. Ct. at 949,

148 L. Ed. 2d at 846.   The defendant denied consent.      Ibid.   The

officer told the defendant, who at this point was on the

trailer’s porch, that he could not reenter the trailer unless

escorted by an officer.   Ibid.    In the meantime, the other

officer was sent to secure a search warrant.     Ibid.   In less

than two hours, the other officer obtained a warrant, and the

ensuing search of the trailer uncovered marijuana.       Ibid.

    The Supreme Court upheld the temporary securing of the

trailer as reasonable because the case “involve[d] a plausible

claim of specially pressing or urgent law enforcement need,

i.e., ‘exigent circumstances.’”     Id. at 331, 121 S. Ct. at 950,

148 L. Ed. 2d at 847 (emphasis added).    The Court specifically

found that “the police had good reason to fear that, unless

restrained, [the defendant] would destroy the drugs before they

could return with a warrant.”     Id. at 332, 121 S. Ct. at 950,

                                  12
148 L. Ed. 2d at 848.   That was so because, before seeking the

defendant’s consent to search, the police had reason to believe

that the defendant could deduce that his wife told them about

the marijuana stash.    Ibid.   Thus, the police came to a fair and

logical conclusion that the defendant, “suspecting an imminent

search, would, if given the chance, get rid of the drugs fast.”

Ibid.

    The present case and McArthur contrast in many ways.      In

our case, Brown’s denial of entry triggered the police-created

exigent circumstances that led to the seizure of her apartment.

Importantly, Brown was not a suspect, and the police had no

articulable basis to believe she would destroy evidence of a

crime.

    In McArthur, the police could not have secured a search

warrant before they accompanied the wife to the trailer.    The

police learned that the defendant had a stash of marijuana in

the trailer after arriving on the scene and then immediately

concluded he might destroy the evidence before they could secure

a warrant.   That is the essence of exigent circumstances -- the

urgent need to preserve evidence pending a warrant application.

Another key point in McArthur, unlike the present case, is that

exigent circumstances preexisted the consent-to-search request

made by the police.

    In short, the Supreme Court in McArthur applied well-

                                  13
established principles concerning the exigent-circumstances

exception to the warrant requirement.    See id. at 330-33, 121 S.

Ct. at 949-51, 148 L. Ed. 2d at 847-49.    The Court upheld the

“temporary” seizure of the trailer because the police action

“was supported by probable cause and was designed to prevent the

loss of evidence while the police diligently obtained a warrant

in a reasonable period of time.”    Id. at 334, 121 S. Ct. at 951-

52, 148 L .Ed. 2d at 849 (emphasis added).

     In the wake of McArthur, courts understood, as they always

have, that the securing of a home -- awaiting a warrant

application -- cannot be justified absent exigent circumstances.

See, e.g., Modrell v. Hayden, 636 F. Supp. 2d 545, 557 (W.D. Ky.

2009) (“McArthur did not invalidate the ‘presumptively

unreasonable’ standard normally applied when determining whether

exigent circumstances justified a warrantless entry.”); United

States v. Sims, 435 F. Supp. 2d 542, 548 (S.D. Miss. 2006)

(“[U]nless exigent circumstances exist (or unless another

exception to the warrant requirement is applicable), a law

enforcement official has no right to enter a dwelling to detain

a suspect in an attempt to secure the premises.”).3


3
 Before McArthur, too, courts required the presence of exigent
circumstances to justify the securing of a home while pending a
warrant application. See, e.g., United States v. Radka, 904
F.2d 357, 361 (6th Cir. 1990) (“[W]arrantless entry into the
home of a suspected drug trafficker, effected without an
objectively reasonable basis for concluding that the destruction
                               14
                                V.

    Additionally, I do not agree with the majority’s assertion

that, since McArthur, the Appellate Division and Law Division

have “not advanced a uniform interpretation of the law”

concerning the appropriate standard for securing a home pending

a search-warrant application.   Ante at ___ (slip op. at 24-25).

Our courts recognize that the exigent-circumstances doctrine is

the governing standard.   See State v. Myers, 357 N.J. Super. 32,

37 (App. Div. 2003) (framing relevant inquiry as “whether

exigent circumstances justified the securing of the [home in

question] while the police sought a search warrant”); State v.

Josey, 290 N.J. Super. 17, 24 (App. Div.), certif. denied, 146

N.J. 497 (1996) (observing that “a warrantless entry into a home

may be valid if warranted by exigent circumstances, such as hot

pursuit of an armed felon . . . [or t]he potential destruction

of evidence”); State v. De Lane, 207 N.J. Super. 45, 50 (App.


of evidence is imminent, does not pass constitutional muster.”);
State v. Martin, 679 P.2d 489, 497-98 (Ariz. 1984) (finding
warrantless seizure of home not justified under exigency
exception because inferences did not support belief that
evidence would be destroyed in home pending search warrant);
State v. Dorson, 615 P.2d 740, 745 (Haw. 1980) (finding that
detention of several people in home while awaiting warrant was
“patently inexcusable” and holding that “required condition
precedent to the entry [of home pending warrant] has been the
existence of exigent circumstances”); State v. Bean, 572 P.2d
1102, 1105 (Wash. 1978) (concluding that no exigent
circumstances justified police entering defendant’s home to
“secure” it while awaiting search warrant).

                                15
Div. 1986) (finding that absent exigent circumstances police

could not enter home absent warrant); State v. Speid, 255 N.J.

Super. 398, 403, 406 (Law Div. 1992) (stating, in part, that

police acted unconstitutionally by securing and searching

defendant’s home without warrant absent exigent circumstances or

consent).

                                VI.

    The police are obliged to obey the Constitution.    Denise

Brown had a clearly established right to insist that the police

obtain a warrant before searching her home for a locket she told

them she did not have.   The police could have secured that

warrant earlier but chose not to do so.    She had a clearly

established right to remain secure in her home, pending the

arrival of that warrant, given the absence of any true exigent

circumstances to justify a seizure of her apartment.    Yet, the

police treated her like a prisoner in her own home for three-

and-one-half hours.

    Like the Appellate Division, I find that Detective Steet

violated Brown’s clearly established rights protected by Article

I, Paragraph 7 of our State Constitution, and therefore he is

not entitled to the protection of qualified immunity.    The

majority has denied Brown her rightful claim to a recovery for

the violation of her civil rights.

    Accordingly, I respectfully dissent.

                                16
