In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1021

Eugene Sparing,

Plaintiff-Appellant,

v.

Village of Olympia Fields
and Officer James Keith,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5479--Charles R. Norgle, Sr., Judge.

Argued September 18, 2000--Decided September 19, 2001



  Before Easterbrook, Ripple, and Williams,
Circuit Judges.

  Williams, Circuit Judge. Eugene Sparing
sued Officer James Keith for alleged
Fourth Amendment violations, stemming
from his arrest in his home. He also sued
Keith and the Village of Olympia Fields
under the Illinois tort of malicious
prosecution. The Village and Keith moved
for summary judgment, with Keith
asserting a defense of qualified
immunity. Relying on our decision in
United States v. Berkowitz, 927 F.2d 1376
(7th Cir. 1991), the district court
rejected Sparing’s Fourth Amendment
warrant claim. In addition, the district
court found probable cause for Sparing’s
arrest on a closely related offense and
rejected Sparing’s Fourth Amendment
probable cause and state law malicious
prosecution claims. Sparing appeals, and
we affirm.

I.   BACKGROUND

A.   The Facts

  Sparing’s arrest arose out of an alleged
scheme organized by a friend named David
Smith. Smith filed a criminal report with
the Olympia Fields Police Department on
July 23, 1996. In his complaint, Smith
alleged that he fired Tom Sanfratello on
May 31, 1996, and that Sanfratello later
stole files from the office and forged
two checks made out to himself. Smith
also stated that on the morning of July
9, 1996, Sparing saw Sanfratello in the
office. According to Smith, Sparing
knocked on the window to get
Sanfratello’s attention, but Sanfratello
did not respond.

  In mid-August, Officer Keith called
Sparing to confirm his part of Smith’s
story. Sparing did. Keith next
interviewed Sanfratello, who disputed the
story in several respects but admitted to
signing the checks because he was a
signatory on the account and was owed
money by Smith. He also admitted to
taking files, but claimed to have
returned them to Smith. Sanfratello also
told Keith that he previously had a
conversation with Sparing’s secretary,
Linda Parker, who told him that she had a
facsimile sent by Smith to Sparing and
that she believed that they were "up to
no good." Sanfratello provided a copy of
that fax to Keith; it read:

Gene

  July 9, 1996 at 2:45 am observed
Tom at office copying files from
computer and photocopying. You
knocked on windows and Tom
ignored you. You left and went
home.

              Thanks

              David

The next day, Keith had a telephone
conversation with Parker. According to
Keith, Parker said that after receiving
the fax from Smith, she made a copy and
gave the original to Sparing, who
replied, "Dave wants me to perjure
myself."
  The following day, Parker telephoned
Keith, recounting to him an encounter she
recently had with Sparing. She said that
Sparing had contacted her to have lunch
and that when he picked her up he asked
with whom she had been talking that week.
Parker initially feigned ignorance, but
Sparing persisted. He drove her by the
Olympia Fields Police Department to
"refresh [her] memory," and again asked
with whom she had been talking, this time
informing her that a friend of
Sanfratello had already put him in the
know. She then admitted to talking with
the police about the fax. Sparing,
according to Parker, replied, "I thought
you were my friend. How could you do this
to me? Don’t you know that this could
lead to criminal charges against me?"
Parker told Keith that Sparing then took
her back home, told her to get out of the
car and that she was fired. He also told
Parker that he was evicting her from the
house she was renting from him and taking
back his van on which she was making
payments. Later that day, Keith spoke
with Parker again, and she told him the
same story.

  After the meeting with Parker, Keith
went to Sparing’s house and knocked on
the door. Sparing answered the door, and
Keith asked that he identify himself,
which he did. At that moment, Sparing was
still standing inside his home behind his
closed screen door, and Keith was
standing outside. Keith then advised
Sparing that he was under arrest./1 To
which, Sparing inquired whether he had a
warrant. Keith stated that he did not,
but rather that he had probable cause.
Sparing asked whether he could place
something down, then turned, and walked
away from the screen door further into
his home. Keith entered the residence,
taking several steps inside. Sparing came
back to Keith, and they both left the
house.

B.   District Court Proceeding

  Sparing filed a lawsuit against the
Village, Keith, and Officer William
Bendar, alleging violations of federal
civil rights law as well as Illinois
state law./2 Sparing alleged in his
complaint that his arrest was in
violation of the Fourth Amendment, and he
sought damages under 42 U.S.C. sec. 1983.
Specifically, Sparing complained that
Keith arrested him in his home without a
warrant and without probable cause. He
also alleged that the Village and Keith
maliciously prosecuted him in violation
of Illinois tort law.

  The Village and Keith moved for summary
judgment. Keith asserted an affirmative
defense of qualified immunity. The
district court held that Sparing had
failed to demonstrate a constitutional
violation and that Keith was entitled to
qualified immunity. The district court
concluded that the arrest did not violate
the Fourth Amendment because Sparing
acquiesced to Keith’s entry to complete
an arrest announced outside his home, and
because probable cause existed for an
offense closely related to the one for
which Sparing was arrested. Having found
probable cause for the arrest, the
district court also concluded that
Sparing could not meet the elements of
malicious prosecution. The district court
then entered judgment in favor of the
Village and Keith. This appeal followed.

II.    ANALYSIS

A.    Fourth Amendment and Section 1983

  Sparing alleges two Fourth Amendment
violations pursuant to section 1983
against Officer Keith. He claims that
Keith unlawfully entered his home without
a warrant to effectuate an arrest and
unlawfully arrested him without probable
cause. Both claims are subject to a
defense of qualified immunity. We begin
our analysis with the standard for
qualified immunity, and then we proceed
to apply that standard to each claim.


  1.    Qualified Immunity.

  Public officials performing
discretionary functions are generally
entitled to qualified immunity and are
"shielded from liability for civil
damages insofar as their conduct does not
violate clearly established statutory or
constitutional rights of which a
reasonable person would have known."
Wilson v. Layne, 526 U.S. 603, 609 (1999)
(internal quotation marks omitted)
(quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Qualified immunity
provides "ample protection to all but the
plainly incompetent or those who
knowingly violate the law." Malley v.
Briggs, 475 U.S. 335, 341 (1986). They
are accorded this ample protection not as
a license to violate constitutional
rights without recourse nor as an excuse
to turn a blind eye to the requirements
of the law, but to preserve the vigilance
of those individuals vested with the
obligation to protect the public interest
in the face of ambiguity. See Hunter v.
Bryant, 502 U.S. 224, 228-29 (1991); see
also Malinowski v. DeLuca, 177 F.3d 623,
626-27 (7th Cir. 1999) (articulating
policy reasons behind the immunity).

  When presented with a defense of
qualified immunity, courts must (1)
determine whether the plaintiff has
alleged the deprivation of an actual
constitutional right and (2) if so,
determine whether that right was clearly
established at the time of the alleged
violation. Saucier v. Katz, 121 S. Ct.
2151, 2156 (2001); Layne, 526 U.S. at
609; Spiegel v. Cortese, 196 F.3d 717,
723 (7th Cir. 1999). Although qualified
immunity is an affirmative defense, the
burden of defeating an assertion of
qualified immunity rests with the
plaintiff. Spiegel, 196 F.3d at 723;
Clash v. Beatty, 77 F.3d 1045, 1047-48
(7th Cir. 1996).

  In this case, the district court, in
granting summary judgment, found that
Sparing could not establish a deprivation
of an actual constitutional right and
therefore did not fully address the
second part of the standard for qualified
immunity. We review the district court’s
judgment on the basis of qualified
immunity de novo. Jones v. Watson, 106
F.3d 774, 777 (7th Cir. 1997). In
determining whether a genuine issue of
material fact exists, we construe all
facts in the light most favorable to the
non-moving party, and draw all reasonable
and justifiable inferences in favor of
that party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).

2. Warrantless arrest in the home--the
significance of Payton, Watson, Santana,
and Berkowitz.

  Sparing argues that Keith entered his
home without a warrant or his consent to
effectuate an arrest, which constituted
an unreasonable search in violation of
the Fourth Amendment and in particular
the Supreme Court’s holding in Payton v.
New York, 445 U.S. 573 (1980). Keith
responds that Sparing acquiesced to his
slight entry to complete the arrest after
he announced it outside Sparing’s home,
which is consistent with Payton and
indistinguishable from our holding in
United States v. Berkowitz, 927 F.2d 1376
(7th Cir. 1991). For the reasons stated
below, we believe that the entry into
Sparing’s home without a warrant to
effectuate or complete the arrest
(although with probable cause) was
unreasonable and therefore a violation of
the Fourth Amendment.

  Two Fourth Amendment principles set the
backdrop against which we analyze this
case. First, police officers may
constitutionally arrest an individual in
a public place (e.g., outside) without a
warrant, if they have probable cause.
United States v. Watson, 423 U.S. 411,
417-24 (1976). Second, police officers
may not constitutionally enter a home
without a warrant to effectuate an
arrest, absent consent or exigent
circumstances, even if they have probable
cause. Payton, 445 U.S. at 585-90. What
distinguishes these two cases is that the
latter involves an entry (i.e., a search)
into the home, a place where individuals
enjoy an especially heightened Fourth
Amendment protection. See id. at 585
("[P]hysical entry of the home is the
chief evil against which the wording of
the Fourth Amendment is directed."
(internal quotation marks omitted)
(quoting United States v. United States
District Court, 407 U.S. 297, 313
(1972)). The former does not. A search of
the home without a warrant is a well-
settled violation of the Fourth
Amendment, and the Supreme Court in
Payton simply made clear that it is no
less so when the search is conducted in
order to seize (i.e., by an arrest) a
person, rather than property. See id. at
585-88.

  At first blush, then, the lines appear
clear. Intrusion into the home without a
warrant "by even a fraction of an inch,"
is too much. Kyllo v. United States, 121
S. Ct. 2038, 2045 (2001) (internal
quotation marks omitted) (quoting Silver
man v. United States, 365 U.S. 505, 512
(1961)). The lines are not so clear,
however, because exactly where outside
ends and where the home begins is not a
point immediately obvious. Splitting
fractions of an inch can be a very
treacherous endeavor, producing arbitrary
results. But we need not pull out our
rulers and begin to measure. Under the
Fourth Amendment, the point must be
identified by inquiry into reasonable
expectations of privacy. United States v.
Santana, 427 U.S. 38, 42 (1976); Katz v.
United States, 389 U.S. 347 (1967).

  The Supreme Court has already considered
the question of dividing outside from
inside when the home is involved,
although not completely resolving the
question, in United States v. Santana,
supra. In Santana, the Court held that an
individual voluntarily standing in the
threshold of her home (i.e., in the
middle of an open doorway) is outside
rather than inside the home for purposes
of the Fourth Amendment. Santana, 427
U.S. at 42. The Court reasoned that an
individual voluntarily standing in an
open doorway has knowingly exposed
herself to "public view, speech, hearing,
and touch" just as if she were standing
outside, in a public place. Id. In those
places, and thus in an open doorway,
under those circumstances, the Watson
rule, rather than the Payton rule,
applies. Id.; see also Katz, 389 U.S. at
351 ("What a person knowingly exposes to
the public, even in his own home or
office, is not a subject of Fourth Amend
ment protection.").

  But what if the individual is not
voluntarily standing in an open doorway,
but answers a knock at the door, standing
by a "fraction of an inch" behind an open
doorway? We still apply Santana-type
"public view, speech, hearing, and touch"
analysis to aid in the determination of
whether a reasonable expectation of
privacy exists. To answer that Payton
established "a firm line at the entrance
to the house," Payton, 445 U.S. at 590,
is to ignore an unmistakable circularity-
-the question is where is the "entrance
to the house," which in these
circumstances must be answered by
consideration of reasonable expectations
of privacy.

  We addressed precisely this question in
United States v. Berkowitz, supra,
acknowledging that when an individual
voluntarily stands behind an open
doorway--fractions of an inch "inside the
home"--ordinarily, for purposes of the
Fourth Amendment, she stands outside, in
a public place. See Berkowitz, 927 F.2d
at 1386-87; cf. Santana, 427 U.S. at 42.
But, we said, the inquiry does not end
there. We also recognized that a person
does not surrender reasonable
expectations of privacy in the home by
simply answering a knock at the door, and
we therefore declined to apply Santana in
toto./3 Berkowitz, 927 F.2d at 1387.
Instead, we held that an individual
retains the right to be free from
physical intrusion into the home by
police officers without a warrant seeking
to effectuate an arrest, but the right
could be waived in that circumstance by
acquiescence (rather than consent) to a
slight entry. We stated our holding as
follows: if the police go to an
individual’s home without a warrant,
knock on the door, announce from outside
the home that the individual is under
arrest when she opens the door to answer,
and the individual acquiesces to a slight
entry to complete the arrest,/4 the
entry is reasonable under the Fourth
Amendment and consistent with Payton. Id.

  Berkowitz, however, did not overturn
longstanding Fourth Amendment precedent
that absent exigent circumstances, police
without a warrant must obtain an
individual’s valid and voluntary consent
before entering the home to effectuate or
complete an arrest. See, e.g., Steagald
v. United States, 451 U.S. 204, 214 n.7
(1981); Reardon v. Wroan, 811 F.2d 1025,
1027-28 (7th Cir. 1987). As we have said,
Berkowitz only endorsed as reasonable
under the Fourth Amendment, a slight
entry into the home to complete an arrest
announced outside the home when the
individual acquiesced to the entry while
standing fractions of an inch behind the
threshold of her home with the door open.
See Berkowitz, 927 F.2d at 1386-87.

  This case does not fit within the thin
middle ground established by Berkowitz,
but is a case where Payton applies. What
puts this case beyond Berkowitz--as well
as Santana and Watson--and is most
critical here, is that Sparing stood
inside his home, behind his closed screen
door. He was neither in a public place,
e.g., outside (Watson),/5 voluntarily in
an open doorway, also a public place
(Santana), or answering a knock at the
door and standing fractions of an inch
behind an open doorway (Berkowitz).
Because we are guided not by the "common
law of property," Santana, 427 U.S. at
42, but by the Fourth Amendment privacy
interest as identified in Katz, this
difference is significant. Sparing was
not exposed to "public view, speech,
hearing, and touch" as if he were
standing outside, in a public place
(voluntarily or otherwise). As a
consequence, we apply Payton--Sparing did
not surrender any reasonable expectations
of privacy in his home. Without a
warrant, this arrest could only be
completed if Sparing opened his screen
door, and stepped outside of his home or
acquiesced to a slight entry to complete
the arrest. For Keith to enter the home
without a warrant, as he did in this
case, he first needed Sparing’s consent.

  We need not question the validity and
voluntariness of consent in this case,
because no evidence of consent is
present. Because Sparing did not consent
to Keith’s entry into his home, Keith’s
entry without a warrant to effectuate or
complete the arrest in Sparing’s home was
unreasonable and a violation of the
Fourth Amendment. We pause here,
momentarily, to reiterate what seems to
have been lost from our discussion in
Berkowitz: there was no reason in this
case not to get a warrant and every
reason to obtain one. See Berkowitz, 927
F.2d at 1388 ("Obtaining a warrant in the
first place would have prevented these
potential problems, to say nothing of the
time it would have saved at trial and on
appeal litigating the legality of [the]
arrest."). When time permits, officers
who elect not to obtain a warrant
unnecessarily risk the type of
constitutional violation involved in this
case.

  Although Sparing has demonstrated a
constitutional violation, he cannot show
that the violation was clearly
established under the second part of the
standard for qualified immunity. Indeed,
we are in agreement with the First
Circuit in concluding that the law
surrounding Fourth Amendment "doorway
arrest" questions, particularly on the
facts of this case, was not sufficiently
settled or defined at the time of the
arrest to defeat qualified immunity in
this case. See generally Joyce v. Town of
Tewksbury, 112 F.3d 19, 22 (1st Cir.
1997) (en banc). Thus, Keith was
appropriately entitled to summary
judgment for Sparing’s Fourth Amendment
warrant claim under section 1983./6

  3.   Arrest without probable cause.

  Sparing next argues that the district
court employed a "fanciful view of
Illinois law and a warped reading of the
record" in concluding that his
participation in Smith’s scheme could
have provided Keith with probable cause
to believe that he had committed the
offense of disorderly conduct. Therefore,
he argues, the district court erred in
granting summary judgment to Keith on his
Fourth Amendment probable cause claim./7
Sparing contends that the section of the
Illinois disorderly conduct statute under
which the district court found probable
cause for the arrest requires a written
report and that the report must falsely
identify an offense, not simply acts that
may be part of an offense.

  The disorderly conduct statute provides:

  (a) A person commits disorderly conduct
when he knowingly:
. . . .

  (4) Transmits or causes to be
transmitted in any manner to any peace
officer, public officer or public
employee a report to the effect that an
offense will be committed, is being
committed, or has been committed, knowing
at the time of such transmission that
there is no reasonable ground for
believing that such an offense will be
committed, is being committed, or has
been committed[.]

720 Ill. Comp. Stat. 5/26-1(a)(4). Illinois
case law, in particular People v.
Stevens, 352 N.E.2d 352 (Ill. App. Ct.
1976), establishes that either written or
oral reports may satisfy the element of a
"report" in the statute. Id. at 354.

  Sparing attempts to distinguish Stevens,
while at the same time advancing his
second argument, by stating that the
defendant in Stevens reported a
"robbery." He argues that he only relayed
information to Keith about what he had
seen and never stated that an "offense"
had been committed. This is a fanciful
interpretation of both Stevens and the
disorderly conduct statute. The plain
language of the statute is not limited to
false reports of an offense, as Sparing
argues, but covers false reports "to the
effect that an offense . . . has been
committed." 720 Ill. Comp. Stat. 5/26-
1(a)(4). When Sparing told Keith that he
had seen Sanfratello in the office
copying files from a computer and
photocopying, it was to corroborate
Smith’s accusation of theft and trespass.
Clearly, the report had the effect of
falsely conveying to a police officer
that an offense had been committed.

  Thus, Keith was also appropriately
entitled to summary judgment for
Sparing’s Fourth Amendment probable cause
claim under section 1983.

B.   Malicious Prosecution

  Sparing argues that for the reasons
articulated in his probable cause
discussion addressed above, the district
court wrongly granted summary judgment to
the Village and Keith on his state law
malicious prosecution claim. Because we
have disposed of his arguments on
probable cause, Sparing is left empty-
handed. However, we will address this
issue because we uphold summary judgment
on the second ground offered by the
district court. We review this claim,
like the others, de novo.

  We are not convinced, as was the
district court, that because probable
cause existed for the offense of
disorderly conduct, Sparing could not
maintain a state law malicious
prosecution cause of action for resisting
or obstructing a police officer--the
offense actually charged. We are aware of
no Illinois case that adopts the closely
related offense rule, which we apply in
qualified immunity cases, in state law
malicious prosecution tort cases.
Therefore, we do not rest our opinion on
this ground.

  However, Illinois law does require that
the criminal proceeding upon which a
malicious prosecution action is
predicated was terminated in a manner
indicative of the innocence of the
accused. Joiner v. Benton Cmty. Bank, 411
N.E.2d 229, 232 (Ill. 1980). The record
is silent on this issue, except for
Keith’s assertion in his deposition that
the case was dismissed for lack of a
warrant (hardly indicative of Sparing’s
innocence). At summary judgment, Sparing
had an obligation to come forward with
evidence to support his claim and could
not merely rest on the allegations in his
complaint. See Fed. R. Civ. P. 56(e). He
failed to do so. Therefore the Village
and Keith were appropriately entitled to
summary judgment for Sparing’s state law
malicious prosecution claim./8
III.   CONCLUSION

  For the foregoing reasons, the judgment
of the district court is Affirmed.

FOOTNOTES

/1 In his deposition, Keith indicated that he ar-
rested Sparing for obstructing a police officer,
although he also had in mind the offense of
disorderly conduct.

/2 Sparing voluntarily dismissed his claim against
Officer Bendar.

/3 Other courts have reached similar conclusions.
See United States v. McCraw, 920 F.2d 224, 228-30
(4th Cir. 1990); Duncan v. Storie, 869 F.2d 1100,
1103 (8th Cir. 1989); United States v. Herrold,
772 F. Supp. 1483, 1489-90 (M.D. Pa. 1991). But
see United States v. Carrion, 809 F.2d 1120,
1127-28 (5th Cir. 1987); United States v. Whit-
ten, 706 F.2d 1000, 1015 (9th Cir. 1983).

/4 Berkowitz actually states this proposition using
the words "and the person acquiesces to the
arrest." 927 F.2d at 1386 (emphasis added). The
issue, however, is whether the entry is consis-
tent with the Fourth Amendment, not the arrest
(which is lawful because supported by probable
cause). Despite the language used in that partic-
ular sentence, we believe the holding in Berko-
witz identified the entry as the constitutional
violation, not the arrest, and therefore we use
the former, not the latter.

/5 Watson actually was arrested in a restaurant.

/6 Sparing presents an additional Fourth Amendment
argument based on the Illinois resisting arrest
statute: Sparing argues that he was required by
Illinois law to acquiesce to Keith’s entry to
complete the arrest, and if he resisted by not
acquiescing to the entry, he was subject to
additional charges for resisting arrest. He
argues that if he acquiesced, the Illinois stat-
ute compelled his acquiescence and as a conse-
quence that acquiescence is constitutionally
defective. Having decided that Berkowitz does not
apply, we need not consider this issue.

/7 The district court did not find probable cause
for the charge of obstructing a police
officer--the offense for which Sparing was ar-
rested and charged--because Sparing’s conduct
could not be considered physical obstruction,
which is a necessary element of the offense. See
People v. Hilgenberg, 585 N.E.2d 180, 183 (Ill.
App. Ct. 1991). But the district court continued
to consider whether probable cause existed for
disorderly conduct because "probable cause need
not have existed for the charge for which the
plaintiff was arrested, so long as probable cause
existed for arrest on a closely related charge."
Biddle v. Martin, 992 F.2d 673, 676 (7th Cir.
1993).

/8 We do not reach the issues of damages raised on
this appeal, because we affirm the district
court’s grant of summary judgment in favor of the
Village and Keith on all counts alleged in the
complaint.
