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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      _________________________

                             No. 13-14407
                      _________________________

                D.C. Docket No. 8:11-cv-02120-MSS-TGW


MARY E. WALTERS,

                                                               Plaintiff-Appellee,

                                  versus


PAUL FREEMAN,

                                                          Defendant-Appellant.


                      __________________________

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

                              (July 16, 2014)

Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Officer Paul Freeman appeals the district court’s denial of his motion for

summary judgment seeking qualified immunity in this action under 42 U.S.C. §

1983. Freeman asserts that he is entitled to qualified immunity because exigent

circumstances justified his warrantless entry into Plaintiff Mary E. Walters’s home

and his subsequent alleged use of force against her. Because, after careful review,

we agree with the district court that no officer reasonably could have believed that

exigent circumstances existed under the facts of this case viewed in the light most

favorable to Walters, we affirm the district court.

                                          I.

      On January 4, 2010, Howard Berk, the manager and part owner of the

apartment building where Walters lived, called 911 and reported a “domestic

between male/female.” Freeman was dispatched to the scene. When he arrived, he

found Berk and Peter Lacy in the parking lot, standing next to Lacy’s van, with

pots and pans on the ground.

      Detective Jake Barlow arrived shortly thereafter to serve as Freeman’s

backup officer. Lacy informed Freeman that he had carried the pots out to the

parking lot and had put them down there. He further explained that he and Walters

had been drinking alcohol all day and having a good time until, at one point, she

began yelling and screaming and demanding that Lacy leave. Barlow testified that

he saw Freeman and Lacy discussing the fact that Walters had “kicked him out,

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and that she was refusing to let him in to get his keys.” Barlow understood that

what had transpired between Lacy and Walters “was simply [a] verbal argument.”

      Beyond the report of the argument and the alcohol consumption, neither

Berk nor Lacy made any statement or suggestion that any physical altercation of

any kind had occurred or that any emergency, injury, or threat of injury of any kind

existed. Nor was Freeman aware of any other evidence of a physical dispute or

any other kind of potential emergency situation.

      Nevertheless, Freeman testified, Lacy’s statement that he and Walters had

been drinking all day caused Freeman to think that this might be a Marchman Act

situation.   The Marchman Act, Fla. Stat. § 397.675, allows the involuntary

commitment of an individual if there is a good-faith reason to believe that she has

lost self-control due to substance abuse and either may cause harm to herself or

others or is need of substance-abuse services.

      Therefore, Freeman stated, he approached Walters’s door and, according to

Berk, demanded that Walters “open this damn door” to talk about Lacy’s keys.

Through the closed door, Walters claimed not to have Lacy’s keys. Freeman later

testified that, while standing at the door, he had no suspicion that a crime had

occurred and no factual foundation for believing that Walters was subject to the

Marchman Act.




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      Walters continued to refuse to open the door for the police, so, Freeman

stated, he “obnoxiously bang[ed] on the door [and] rattl[ed] [the] windows, trying

to annoy [Walters] so she’d come and open up the door.” Later, Walters said, “If

you want to have the keys, go get a fucking search warrant.”

      At this point, the stories diverge. According to Walters, twenty minutes

after she last said anything to the officers through the door, Freeman “came busting

in” the door. Walters further stated that she had her hands by her side, and

Freeman grabbed her shoulders and threw her down on a futon, causing her to hit

her head on the futon’s metal frame.

      For his part, Freeman claimed that before he even announced who he was,

Walters shouted through the door, “Fuck you, get a search warrant,” and repeated

this statement continuously until he entered her apartment. But this interaction

lasted only a couple of minutes, according to Freeman’s testimony, before Berk

informed Freeman that he had a spare key to the dwelling. Freeman used the key

to unlock the door to Walters’s apartment.

      As he opened the door, Freeman testified, he saw Walters advancing towards

him, “screaming hysterically,” with her hands raised. In response, Freeman stated,

he “instinctively” assumed a defensive posture and pushed Walters back into the

apartment, where she fell backwards on to a futon that was near the door. Because

Walters was kicking and screaming, Freeman claimed, he grabbed her wrists.

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       Both parties agree that Freeman handcuffed Walters after the incident and

took her to the Venice jail, where she was charged with obstruction of justice.

                                              II.

       Walters filed her complaint in state court against Freeman and the City of

Venice, who, in turn, removed the case to the United States District Court for the

Middle District of Florida. After Walters asked the district court to dismiss Venice

with prejudice, the court granted her motion. Therefore, Venice is not a party to

this appeal.

       Walters’s complaint asserted three counts against Freeman under § 1983,

alleging violations of the Fourth Amendment for unlawful home entry (Count I),

unlawful home search (Count II), and excessive force (Count III). 1                   Freeman

moved for summary judgment on all counts, invoking the defense of qualified

immunity. The district court denied Freeman’s motion, finding that “material

issues of fact exist concerning whether exigent circumstances warranted a

warrantless entry and arrest” and “whether the use of force against [Walters] was

reasonable because ‘if an arresting officer does not have the right to make an




       1
         Walters originally asserted each of the counts against Freeman in both his official and
individual capacities. The district court entered summary judgment for Freeman as to the claims
against him in his official capacity because official-capacity claims are construed as claims
against the government entity by whom the officer is employed, and § 1983 claims against
governmental entities must challenge an official policy or custom of the entity; they may not
proceed on a respondeat superior basis. See Mandel v. Doe, 888 F.2d 783, 791 (11th Cir. 1989).
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arrest, he does not have the right to use any degree of force in making that arrest.’”

This appeal followed.

                                         III.

      We have jurisdiction to hear appeals from “all final decisions of the district

courts of the United States . . . .” 28 U.S.C. § 1291. A district court’s denial of a

qualified-immunity claim is a “final decision” under Section 1291, to the extent

that it turns on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct.

2806, 2817 (1985). Consequently, we have jurisdiction to hear Freeman’s appeal.

      We review de novo the district court’s denial of qualified immunity on a

motion for summary judgment. Wilkerson v. Seymour, 736 F.3d 974, 977 (11th

Cir. 2013). Summary judgment should be entered when “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In making this determination, we consider the record

and draw all reasonable inferences in the light most favorable to the Walters, the

non-moving party. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (per

curiam) (citation omitted).

                                         IV.

      The qualified-immunity defense aims to strike a balance between “the need

to hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they

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perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.

Ct. 808, 815 (2009). Towards that end, qualified immunity protects government

officials engaged in discretionary functions and sued in their individual capacities

unless they “violate[] clearly established federal statutory or constitutional rights of

which a reasonable person would have known.” Keating v. City of Miami, 598

F.3d 753, 762 (11th Cir. 2013) (internal quotation marks omitted).             Because

qualified immunity “is an immunity from suit rather than a mere defense to

liability,” the Supreme Court has emphasized the importance of determining

questions of immunity at the earliest possible juncture in the case. Jordan v. Doe,

38 F.3d 1559, 1565 (11th Cir. 1994) (internal quotation marks and emphasis

omitted).

       Under the qualified-immunity doctrine, a public official must first show that

he was acting within the scope of his discretionary authority. Maddox v. Stephens,

727 F.3d 1109, 1120 (11th Cir. 2013). Here, Freeman undisputedly has established

this fact.

       The burden then shifts to Walters to demonstrate that qualified immunity is

not appropriate. See id. In order to do this, Walters must show that, when viewed

in the light most favorable to her, the facts demonstrate that Freeman committed a

violation of Walters’s constitutional right and that that right was “clearly

established . . . in light of the specific context of the case, not as a broad general

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proposition[,]” at the time of Freeman’s actions. Saucier v. Katz, 533 U.S. 194,

201, 121 S. Ct. 2156 (2001). We may decide these issues in either order, but, to

survive a qualified-immunity defense, Walters must satisfy both showings.2

Maddox, 727 F.3d at 1120−21.

                                               A.

       Here, we start with the question of whether Walters’s factual allegations,

assumed for the purposes of this inquiry to be true, demonstrate a constitutional

violation. Hope v. Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513 (2002).

Walters claims that Freeman entered her apartment without a warrant and used

excessive force against her once inside.                She asserts that Freeman’s actions

violated her Fourth Amendment rights.

       Freeman responds that no constitutional violation occurred because the

possibility that Walters was a victim of domestic abuse or a candidate for

involuntary     commitment        under     the       Marchman    Act    created     emergency

circumstances that justified his warrantless entry.              The law does not support

Freeman’s position.




       2
          Although the Supreme Court originally determined that a court must first answer the
question of whether a constitutional right was violated before proceeding to the issue of whether
the right was clearly established, in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 810
(2009), the Court abrogated that requirement and held that courts may conduct the inquiry in
either order.
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      The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures . . . .” U.S. Const. amend. IV. Under the Fourth Amendment, warrantless

searches inside a home are “presumptively unreasonable.” Brigham City v. Stuart,

547 U.S. 398, 403, 126 S. Ct. 1943, 1947 (2006) (internal quotation marks

omitted).

      Limited exceptions to this rule exist, however.         Among others, the

“emergency aid” exception permits officers to make a warrantless entry into a

home to provide emergency assistance to a seriously injured person inside or to

protect an occupant from “imminent injury.” Kentucky v. King, ___ U.S. ___, 131

S. Ct. 1849, 1856 (2011) (internal quotation marks omitted). Because Freeman

had no warrant, he invokes this exception to justify his entry into Walters’s home.

The record, however, properly construed with all inferences drawn in Walters’s

favor, does not support a conclusion that an emergency meriting Freeman’s

warrantless entry existed.

      Freeman was dispatched to the scene of a domestic disturbance between a

male and female. When he arrived on the scene, the parties were separated and not

interacting: Lacy was in the parking lot, and Walters was inside her own home,

behind her locked door. No report of any physical altercation had been made, nor

had Freeman received any reports of noises or other circumstances that might

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suggest that a physical altercation had taken place. Freeman had no evidence of

criminal activity or violence, only a verbal dispute concerning Lacy’s keys. As we

have said before, the emergency-aid exception requires “indicia of an urgent,

ongoing emergency” such as when “officers have received emergency reports of an

ongoing disturbance, [and] arrived to find a chaotic scene, and observed violent

behavior, or at least evidence of violent behavior.” United States v. Timmann, 741

F.3d 1170, 1179 (11th Cir. 2013). Here, Freeman encountered none of these

circumstances.

      Freeman points out that domestic disputes often degenerate into violent

confrontations and argues that warrantless entries can be justified in domestic-

disturbance situations. For example, Freeman cites Tierney v. Davidson, 133 F.3d

189 (2d Cir. 1998), where the Second Circuit found a warrantless entry to be

appropriate. In Tierney, the police were summoned to “a ‘bad’ domestic dispute,”

described as “the worst yet,” at a residence where previous domestic disturbances

had occurred. Id. at 192. On arrival, the police encountered a broken glass pane

but could not locate the occupants of the home who had been fighting. Id. The

Second Circuit found the entry to be justified under these circumstances because it

was reasonable to believe “that someone inside had been injured or was in danger,

[and] that both antagonists remained in the house.” Id. at 197. But Tierney is

inapposite because Freeman had no evidence of previous disputes between Walters

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and Lacy, they were safely separated when Freeman arrived, and Freeman was

aware of no signs of any violence.

      Freeman’s reliance on similar cases is also misplaced because, like Tierney,

each of the other cases cited possessed indicia of an urgent, ongoing emergency

not found here. See United States v. Brooks, 367 F.3d 1128, 1135−36 (9th Cir.

2004) (sounds of a woman being beaten and the parties were still co-located in a

hotel room); Fletcher v. Town of Clinton, 196 F.3d 41, 51 (1st Cir. 1999) (police

spotted boyfriend inside home of, and in the same room with, a woman who had

taken out a restraining order against the boyfriend, who police knew had

committed prior violent acts); Anderson v. City of West Bend Police Dep’t, 774 F.

Supp. 2d 925, 939 (E.D. Wis. 2011) (sounds of furniture moving, things banging

around, and a woman saying “help me;” woman crying and leaving impression that

she would return to speak with police but then failing to return after she went back

inside with her alleged abuser); United States v. Lawrence, 236 F. Supp. 2d 953,

961−62 (D. Neb. 2002) (woman spoke to 911 dispatcher with “tearful, hesitant, or

frightened voice”; husband and wife fighting with each other during 911 calls;

abrupt hang up of 911 calls; and no contact with wife after police arrived on scene

while angry husband told wife that police would not be allowed inside).

      Freeman also contends that Florida’s “robust” domestic abuse investigation-

and-reporting statute essentially required him to do whatever was necessary to

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visually verify and confirm Walters’s well-being after being dispatched to a

domestic-disturbance call. See Fla. Stat. § 741.29.

       This argument is unavailing. Although Florida’s statute imposes mandatory

investigation obligations on law enforcement officials, see Fla. Stat. § 741.29(1),

(2), it does so with respect to incidents of “domestic violence.” Id. The Florida

statute’s definition of “domestic violence” encompasses a wide-array of physical

conduct. See Fla. Stat. § 741.28. Freeman, however, did not encounter any

evidence of physical violence, and the Florida statute did not impose any

obligations on Freeman that justified a warrantless entry into Walters’s home under

the facts of this case.

       Freeman’s other argument for why his warrantless entry was proper—that he

believed a Marchman Act situation existed—is also unpersuasive.            Freeman

himself testified that he had no factual basis, including no first-hand proof of

Walters’s intoxication, to support his belief that Walters was subject to the Act at

the time that he entered the apartment without a warrant. While the evidence may

support an objectively reasonable conclusion that Walters was intoxicated to some

degree (which Walters denies), it does not support a conclusion that she was so




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dangerously intoxicated that either she was suffering a health emergency or had

lost self-control and was a suitable candidate for Marchman Act commitment. 3

       Walters also alleges that Freeman violated her Fourth Amendment rights by

using excessive force during the encounter. Because the facts viewed in the light

most favorable to Walters demonstrate that Freeman’s entry into her apartment was

unlawful, we must also conclude that they support finding a constitutional

excessive-force violation. As we have stated, “if an arresting officer does not have

the right to make an arrest, he does not have the right to use any degree of force in

making the arrest.” Bashir v. Rockdale Cnty., Ga., 445 F.3d 1323, 1332 (11th Cir.

2006).

       Therefore, viewing the facts in the light most favorable to Walters, we

conclude that the district court did not err in finding that Freeman violated her

Fourth Amendment rights with respect to the warrantless entry and search of her

home as well as with regard to Freeman’s use of excessive force during the

encounter.

                                              B.

       We now examine whether the law was clearly established at the time of the

incident.    The violation of a constitutional right is clearly established if a

       3
         Freeman mentions in passing a concern that Walters may have been a candidate for
involuntary commitment or admission under the Baker Act, Fla. Stat. § 394.463(1). This
argument is without merit. There is no evidence on the record that Freeman had any reason to
believe that Walters satisfied the Baker Act criteria at the time he entered her apartment.
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reasonable official would understand that his conduct violates that right. See

Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). Our Circuit employs two

methods to make this determination. Fils v. City of Aventura, 647 F.3d 1272, 1291

(11th Cir. 2011). In the first, “[w]e have held that decisions of the United States

Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and

the highest court of the pertinent state (here, the Supreme Court of Florida) can

clearly establish the law.” McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.

2007). Under this method, “[e]xact factual identity with a previously decided case

is not required, but the unlawfulness of the conduct must be apparent from the pre-

existing law.” See Coffin, 642 F.3d at 1013.

      The second method involves evaluating the officer’s conduct and deciding

whether the officer’s “conduct lies so obviously at the very core of what the Fourth

Amendment prohibits that the unlawfulness of the conduct was readily apparent to

[the officer], notwithstanding the law of fact-specific case law” on point. Fils, 647

F.3d at 1291 (alteration in original) (internal quotation marks omitted). Thus,

despite an absence of case law holding the specific conduct to be unlawful, a

“general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question.” Coffin, 642 F.3d at 1014−15;

see Fils, 647 F.3d at 1291.




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      With the facts construed most favorably to Walters, we find that it was

clearly established at the time of the incident—under either method—that

Freeman’s conduct violated Walters’s right to be secure in her home from

warrantless, unconsented, and unjustified police intrusions. See Payton v. New

York, 445 U.S. 573, 585, 100 S. Ct. 1371, 1379 (1980) (“[T]he physical entry of

the home is the chief evil against which the wording of the Fourth Amendment is

directed.” (internal quotation marks omitted)); Bashir, 445 F.3d at 1331 (entering a

home “without a warrant, exigent circumstances, or consent” violates “clearly

established” Fourth Amendment precedent); Riggs v. State, 918 So. 2d 274,

278−79 (Fla. 2005) (recognizing that warrantless entry into a home without “the

sort of emergency or dangerous situation, described in our cases as ‘exigent

circumstances,’” is unjustified (internal quotation marks omitted)).

      Moreover, the contours of the emergency-aid exception to the warrant

requirement were clearly established at the time of the incident. In Stuart, for

example, in 2006, the Supreme Court plainly explained the limitations on the

emergency-aid exception: “[L]aw enforcement officers may enter a home without

a warrant to render emergency assistance to an injured occupant or to protect an

occupant from imminent injury.” See Stuart, 547 U.S. at 403, 126 S. Ct. at 1947

(emphasis added). Similarly, we said in United States v. Holloway, 290 F.3d 1331,

1337 (11th Cir. 2002), “[E]mergency situations involving endangerment to life fall

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squarely within the exigent circumstances exception. . . . When the police

reasonably believe an emergency exists which calls for an immediate response to

protect citizens from imminent danger, their actions are no less constitutional.”

(emphasis added). Florida has also previously spoken clearly to the issue. In

Riggs, 918 So. 2d at 278, Florida’s Supreme Court explained, “To [invoke the

exigent-circumstances exception, the government] must demonstrate a grave

emergency that makes warrantless search imperative to the safety of the police and

of the community.” (Emphasis added) (internal quotation marks omitted).

      When Freeman opened Walters’s door, there was no evidence of a crime.

There was no evidence of violence. There was no evidence of existing injury or

imminent harm. There was no evidence of dangerous intoxication warranting

Marchman Act intervention. So there was no basis under any of the case law to

warrant a reasonable officer’s belief that the emergency-aid exception to the Fourth

Amendment’s warrant requirement might apply.            Instead, a reasonable officer

faced with these circumstances would have fair and clear warning that a warrant

was required for entry into Walters’s home.         And similarly, it was clearly

established at the time of the incident that any force used in support of Freeman’s

unlawful conduct was excessive. See Zivojinovich v. Barner, 525 F.3d 1059, 1071

(11th Cir. 2008) (“[E]ven de minimis force will violate the Fourth Amendment if




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the officer is not entitled to arrest or detain the suspect . . . .”); Bashir, 445 F.3d at

1332.

                                           V.

        Because the facts, viewed in the light most favorable to Walters,

demonstrate that Freeman violated her clearly established constitutional rights, the

district court properly denied qualified immunity to Freeman. For these reasons,

the district court’s order is AFFIRMED.




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