                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0132p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                  X
                                                   -
 DONNETTA SMITH, CHARLES SMITH, and

                            Plaintiffs-Appellees, --
 LOGAN SMITH,

                                                   -
                                                       No. 12-1963

                                                   ,
                                                    >
                                                   -
             v.

                                                   -
                                                   -
 MARK STONEBURNER and DAMON KNAPP, in
                                                   -
 their individual capacities,
                        Defendants-Appellants. -
                                                  N
                     Appeal from the United States District Court
                for the Western District of Michigan at Grand Rapids.
                 No. 1:11-cv-00390—Gordon J. Quist, District Judge.
                                Argued: April 24, 2013
                         Decided and Filed: May 10, 2013
       Before: DAUGHTREY, SUTTON and KETHLEDGE, Circuit Judges.

                                 _________________

                                     COUNSEL
ARGUED: Michael S. Bogren, PLUNKETT COONEY, Bloomfield Hills, Michigan,
for Appellants. William F. Piper, WILLIAM F. PIPER, PLC, Portage, Michigan, for
Appellees. ON BRIEF: Michael S. Bogren, Mary Massaron Ross, PLUNKETT
COONEY, Bloomfield Hills, Michigan, for Appellants. William F. Piper, WILLIAM
F. PIPER, PLC, Portage, Michigan, for Appellees.
                                 _________________

                                      OPINION
                                 _________________

       SUTTON, Circuit Judge. But for the want of $14.99 or a warrant, this case
would not exist. After Charles Smith shoplifted a phone charger, two police officers
went to his house. In the course of arresting him, they entered his house twice (without
a warrant each time), forcefully restrained him and injured his mother. In response,


                                           1
No. 12-1963         Smith v. Stoneburner                                              Page 2


Smith and his mother filed this action claiming that the officers violated their Fourth and
Fourteenth Amendment rights and some state law duties to boot. Accepting the
plaintiffs’ fact-supported allegations as true, as we must at this stage of the litigation, we
affirm the district court’s denial of qualified immunity to the two officers.

                                              I.

        For $14.99, one can buy a cell phone charger with a car adapter at the Walgreens
in Sturgis, Michigan. That price apparently was too steep for Smith, age 20, who
stopped by the store on May 25, 2010. Store employees saw Charles take a charger off
the shelf, place it in his cart, walk around the store, hide the charger on a different shelf
behind packages of straws and then start to leave. The store manager intercepted
Charles on his way out, and Charles showed him where he hid the charger. The package
had been opened, and the part of the charger that connects into the phone had been cut
off and removed. The manager asked Charles to stay at the store while he called the
police, but Charles refused and walked home, a home as it turns out within sight of the
Walgreens.

        Officers Mark Stoneburner and Damon Knapp of the Sturgis Police Department
responded to the call. They interviewed the store’s employees, reviewed a security
videotape and decided to talk to Charles.

        When the two officers pulled up in front of the Smith house, they found Charles’
19-year-old brother, Logan, outside. Stoneburner asked Logan if Charles was home, and
Logan said he was upstairs. When Stoneburner asked whether the officers could enter
the house, Logan told Stoneburner that he would ask his mother and that they could wait
on the back deck of the house while he checked. Stoneburner and Knapp followed
Logan to the back. As Logan went into the house, Stoneburner started to follow him
through the door. Logan said nothing but “gave him a look like why are you coming in
the house, I told you to wait on the deck.” Logan Smith Dep., R. 44 at 11. Stoneburner
entered the home anyway, while Knapp stayed outside. Logan retrieved Charles from
his bedroom upstairs and brought his mother, Donnetta, down too. Stoneburner asked
Charles to step outside on the deck, and all three Smiths complied.
No. 12-1963         Smith v. Stoneburner                                            Page 3


         Once outside, Stoneburner asked Charles about the incident at Walgreens.
Charles denied stealing or cutting the phone charger and allowed Stoneburner to pat him
down. Stoneburner found only a lighter. Undeterred, Stoneburner asked Charles if he
could look inside the house. Charles mumbled something and started walking back
inside. Stoneburner followed, asking Charles whether the police should know about
anything he had inside. Charles opened the door, re-entered the house and started to pull
the door closed behind him. Stoneburner held the door open, told Charles to stop and
crossed the threshold of the doorway to grab Charles by the wrist. He pulled Charles
back outside. At the same time, Donnetta told Stoneburner not to touch her son and
moved between Stoneburner and Charles. Stoneburner collided with Donnetta, causing
her to hit the side of the house.

         After pulling Charles outside, Stoneburner bent him over the railing, and Knapp
told him he was under arrest. Charles stiffened his body, making it more difficult for the
officers to place his hands behind his back. Stoneburner and Knapp each grabbed one
of Charles’ arms, bent him over the railing and pressed his head against the wall as they
handcuffed him.      The officers charged Charles with third-degree retail fraud, a
misdemeanor, after which Charles pled guilty to a lesser misdemeanor: disturbing the
peace.

         The Smiths filed this lawsuit under § 1983 and state law, alleging that
Stoneburner unconstitutionally entered their home two times and that the officers used
excessive force against Charles and Donnetta. The district court denied qualified
immunity to the officers on all of the claims and granted summary judgment in favor of
Charles on one of them: Stoneburner’s second entry into the house when he grabbed
Charles and pulled him back outside.

                                            II.

         In this qualified immunity case, as in all qualified immunity cases, two questions
arise: whether the officers violated the Smiths’ constitutional rights, and if so whether
those rights were clearly established at the time. See Pearson v. Callahan, 555 U.S. 223,
236 (2009). In considering the officers’ claim that they should prevail as a matter of law
No. 12-1963        Smith v. Stoneburner                                            Page 4


on one or both of these questions, we draw all reasonable factual inferences in favor of
the plaintiffs. See Campbell v. City of Springboro, 700 F.3d 779, 786 (6th Cir. 2012).

                                           A.

        First up is whether Officer Stoneburner violated the Smiths’ Fourth Amendment
rights when he followed Logan into the house to look for Charles. Police officers, it has
long been true, may not enter a private home without a warrant absent an exigency or
consent. Payton v. New York, 445 U.S. 573, 590 (1980). Stoneburner does not claim
that he had a warrant when he entered the home, and he does not claim any exigency
justified the entry. He instead leans on the consent exception.

        Police officers do not need a warrant when residents invite them into their homes.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “[M]ere acquiescence,” however,
does not show consent; the resident must freely invite the officer into the house. United
States v. Moon, 513 F.3d 527, 538 (6th Cir. 2008).

        Did Logan invite Stoneburner into the house? Maybe yes; maybe no. According
to Stoneburner and Knapp, Logan said something they could not understand, held the
door open and never told them they could not enter. According to Logan, he told the
officers they needed to “wait on the porch while I go inside,” and he gave Stoneburner
a look “like why are you coming in the house” when the officer nonetheless followed
him. Logan Smith Dep. at 11. That is the epitome of a triable issue of fact, see
Schneckloth, 412 U.S at 227, one over which our authority recedes and the jury’s takes
over.

        Stoneburner insists that, in a close call, officers should win because qualified
immunity protects all but “the plainly incompetent.” Malley v. Briggs, 475 U.S. 335,
341 (1986). That may be true. But that is not the problem Stoneburner faces. The
testimony shows two competing versions of what happened, only one of which can be
true. If a jury credits Logan Smith’s version of the events, that would mean Stoneburner
ignored Logan’s request to stay outside. That would not be a close call when it comes
to consent, and that finding would not shield Officer Stoneburner from liability.
No. 12-1963        Smith v. Stoneburner                                           Page 5


       Gerald M. v. Conneely, 858 F.2d 378 (7th Cir. 1988), changes nothing. The
Seventh Circuit held that a homeowner consented to a police officer’s entrance when she
told the officer to “wait here” at the front door and she “did nothing to indicate to him
that she disapproved” when she noticed that he was waiting inside the front door. Id. at
384. Neither factual premise of that ruling appears here. Logan did not say “wait here,”
which might mean waiting inside the front door or waiting outside of it. He said that
Stoneburner should “wait on the porch while I go inside.” Logan Smith Dep. at 10. Nor,
once Stoneburner nonetheless entered the house, did Logan act as if nothing had
happened. He gave Stoneburner a disapproving look—a “look like why are you coming
in the house.” Id. at 11. That presumably is why Stoneburner acknowledges he stopped
once Logan saw him inside the house. Even if the Seventh Circuit’s 1988 statement of
the relevant parameters of Fourth Amendment law were accurate, a point we need not
decide, Smith’s case does not fall within them.

                                           B.

       Second up is a related but distinct question—whether Stoneburner violated the
Fourth Amendment when he entered the house a second time to arrest Charles.
Stoneburner admits that, by reaching across the doorway to grab Charles, he entered the
house, and he admits that no one invited him in. No factual disputes about potential
consent thus cloud the resolution of this issue.

       Stoneburner faces two presumptions, not one, when it comes to this entry: the
customary presumption against warrantless entries, Payton, 445 U.S. at 590, and the
presumption against warrantless entries to investigate minor crimes or to arrest
individuals for committing them, Welsh v. Wisconsin, 466 U.S. 740 (1984). In Welsh,
a drunk driver swerved off the road, exited his car and walked home. At the time,
driving under the influence was a noncriminal violation in Wisconsin, punishable only
by a $200 fine. When police officers arrived, they entered Welsh’s house and placed
him under arrest. Because the government’s only interest was “to arrest for a minor
offense,” the presumption against entry was “difficult to rebut”—and not rebutted there.
Id. at 747–48, 753; see McDonald v. United States, 335 U.S. 451, 459 (1948) (Jackson,
No. 12-1963          Smith v. Stoneburner                                           Page 6


J., concurring) (“Whether there is reasonable necessity for a search without waiting to
obtain a warrant certainly depends somewhat upon the gravity of the offense . . . .”).

       Whether an investigation concerns a major crime or a minor one, however,
exigent circumstances—“hot pursuit” or the potential destruction of evidence—may
overcome the presumption against a warrantless entry. Welsh, 466 U.S. at 747–48;
Payton, 445 U.S. at 590. Yet if the presumption against warrantless entries stemming
from minor crimes is to have any meaning, the exigency must be a serious one in that
context.

       Officer Stoneburner cannot meet these stiff requirements. Yes, he had probable
cause to believe Charles Smith had committed the misdemeanor crime of third-degree
retail fraud. Mich. Comp. Laws § 750.356d(4). But neither type of exigency—hot
pursuit or the destruction of evidence—justified a warrantless entry to arrest Charles for
this $14.99 crime.

       Under the hot pursuit exception, an officer may chase a suspect into a private
home when the criminal has fled from a public place. Warden v. Hayden, 387 U.S. 294,
298–99 (1967). If, say, a drug dealer runs into a house when police approach her after
a controlled buy and after they identify themselves, the officers may follow her into the
house to make their arrest. United States v. Santana, 427 U.S. 38, 43 (1976). The
“pursuit” begins when police start to arrest a suspect in a public place, the suspect flees
and the officers give chase. Cummings v. City of Akron, 418 F.3d 676, 686 (6th Cir.
2005). What makes the pursuit “hot” is “the emergency nature of the situation,”
requiring “immediate police action.” Id.

       Stoneburner’s entry into the house was neither—neither a “pursuit” nor “hot.”
Charles voluntarily agreed to talk with Stoneburner, and Stoneburner made no attempt
to arrest him when they spoke. At some point, Charles chose to end their conversation
and return inside his home. To call that choice “flight” would make a fugitive out of any
citizen who exercises his right to end a voluntary conversation with a police officer. In
consensual encounters, we think of individuals as “free to leave,” not “free to flee.” Had
No. 12-1963         Smith v. Stoneburner                                              Page 7


Stoneburner told Charles he was under arrest, and had Charles made a run for it, that
might have made a difference. But short of that, or something similar, Charles had the
right to “decline to listen to the questions . . . and . . . go on his way.” Florida v. Royer,
460 U.S. 491, 498 (1983).

        Nor at any rate was the pursuit “hot” in any meaningful way. No emergency
necessitated “immediate police action.” Cummings, 418 F.3d at 686. Charles was not
armed, a fact Stoneburner knew because Charles had just volunteered to let the officer
pat him down to look for the charger. See Warden, 387 U.S. at 299; United States v.
Johnson, 106 F. App’x 363, 367 (6th Cir. 2004). He was not violent. See United States
v. Mayo, 792 F. Supp. 768, 771–72 (M.D. Ala. 1992). There was no ongoing public
nuisance. See United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir. 1996). There was
no sign that anyone inside the house was injured or needed emergency aid. See Brigham
City v. Stuart, 547 U.S. 398, 403 (2006). And Charles had committed no other, more
serious, crimes. See Ingram v. City of Columbus, 185 F.3d 579, 587 (6th Cir. 1999).

        Had Stoneburner remained outside, any risk to the public was remote. Charles
would have remained inside the house, a non-violent person alone with a non-violent
phone charger. Had they wished to pursue the investigation further, the officers could
have contacted a magistrate and secured a warrant. Stoneburner chose instead “to act
as his own magistrate” and enter the house, McDonald, 335 U.S. at 460 (Jackson, J.,
concurring), a choice the Fourth Amendment does not permit in this setting.

        Also possible, Stoneburner argues, is that Charles might have destroyed the
evidence—the part of the phone charger he allegedly took. But to call this a public-
safety exigency gives public safety a bad name. The point of Welsh is that the possible
destruction of evidence of a misdemeanor does not usually suffice to justify a
warrantless entry. Otherwise, why invalidate the entry in Welsh? That case raised the
assured destruction of evidence, in truth the dilution of evidence, as time would have
dissipated the alcohol in the defendant’s bloodstream before the officers could obtain a
warrant, and yet the Court invalidated the entry nonetheless. See Welsh, 466 U.S. at 763
(White, J., dissenting). That was the harder case. If we were to uphold a warrantless
No. 12-1963         Smith v. Stoneburner                                              Page 8


entry to arrest someone for stealing a $14.99 phone charger, the Welsh presumption
would count for naught.

        How serious at any rate was the risk of destruction here?              There were
eyewitnesses to the crime—enough of them indeed to prompt the officers to make an
arrest on the spot without recovery of the pilfered charger. Any destruction of evidence
at that point would have elevated a minor misdemeanor Charles allegedly committed
into the felony of evidence tampering. See Mich. Comp. Laws § 750.483a(5)(a), (6)(a).
And how does one make a phone charger disappear without leaving the house? A
sledgehammer would leave plenty of shards for the police to discover. Hiding the
charger in the house was a possibility but hardly a sure thing. Tossing the charger out
the window would have accomplished little. This was not Venice. It was canal-free
Sturgis, Michigan. And flushing a charger down a toilet—or more precisely trying to
flush a charger down a toilet—would be more likely to create new problems than
eliminate the one at hand.

        Consensual encounters are a traditional tool of law enforcement. But they are
not free from risk for individuals and officers alike. If the suspect cooperates, the officer
may learn useful information that bolsters or even ends the investigation. But if the
suspect exercises his right “not to respond or to speak, the investigation will have
reached a conspicuously low point, and the [suspect] will have the kind of warning that
even the most elaborate security system cannot provide.” Kentucky v. King, 131 S. Ct.
1849, 1862 (2011) (internal quotation marks omitted). Stoneburner’s investigation hit
that point when Charles returned inside his home, requiring Stoneburner to get a warrant
if he wished to make an arrest inside the home.

        Smith’s rights also were clearly established at the time of the entry. By 2010,
Payton and Welsh had been on the books for more than 25 years, making it clear that a
double presumption guarded against warrantless entries into a home to arrest a
misdemeanor suspect. Since then, the lower courts have followed what the Supreme
Court said—and did—in Welsh. Stoneburner cannot point to a case from our court or
any other that permitted an entry under circumstances like these. The Tenth Circuit
No. 12-1963         Smith v. Stoneburner                                             Page 9


claims that, as of 2007 “neither the Supreme Court nor this Court [had] ever found an
entry into a person’s home permissible based merely on the pursuit of a misdemeanant.”
Mascorro v. Billings, 656 F.3d 1198, 1209 (10th Cir. 2011) (footnote omitted). The
Ninth Circuit has come close to saying the same thing: “[T]he exigency exception to the
warrant requirement generally applies only to a fleeing felon not to a fleeing
misdemeanant.” Sims v. Stanton, 706 F.3d 954, 961 (9th Cir. 2013) (discussing 2008
conduct); cf. United States v. Washington, 573 F.3d 279, 289 (6th Cir. 2009) (holding
that a warrantless entry in the course of investigating a misdemeanor criminal trespass
was unreasonable).

        What is generally the case, we recognize, need not invariably be the case. Our
unpublished decision in United States v. Johnson, 106 F. App’x 363, 368 (6th Cir. 2004),
proves the rare exception to the rule. We upheld a warrantless entry in pursuit of a
suspect because the misdemeanor at issue—unlawfully discharging a firearm—involved
an armed and dangerous suspect. See id. Nothing remotely of the sort happened here.

        Two appellate decisions, it is true, granted qualified immunity to officers on not-
clearly-established grounds, but they each involved a fact pattern at least one prominent
step removed from this one. In Malachowski v. City of Keene, 787 F.2d 704, 714
(1st Cir. 1986) (per curiam), the officer relied on a state statute that directly authorized
the entry. In Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994), the
officers entered the home to quell a group of carried-away partygoers resisting arrest.
In both cases, the officers confronted situations where their entries were at least
potentially justifiable. Not so here. No exigency existed, and no state law authorized
Stoneburner’s entry. See People v. Reinhardt, 366 N.W.2d 245, 248 (Mich. Ct. App.
1985) (holding that a Michigan statute authorizing police officers to enter a home
without a warrant to make an arrest for a crime committed in their presence did not
extend to misdemeanors). The district court correctly denied qualified immunity and
correctly granted summary judgment to the Smiths on Stoneburner’s second entry.
No. 12-1963          Smith v. Stoneburner                                           Page 10


                                             C.

          Third up is whether Officers Stoneburner and Knapp used excessive force in
arresting Charles and shoving Donnetta. The standard is easy to state and even easy to
apply in this instance. A police officer uses excessive force in arresting a suspect if his
actions are objectively unreasonable given the nature of the crime and the risks posed
by the suspect’s actions. Graham v. Connor, 490 U.S. 386, 397 (1989).

          Charles alleges that, in the course of arresting him, the officers banged his head
against a wall several times as they held him over the deck railing. The nature of the
offense—a misdemeanor stemming from the alleged theft of a phone charger—gives the
officers no quarter. Shoplifting of this sort offers no reason by itself for banging a
suspect’s head against a wall. Nor did the report by Walgreens’ employees to the
officers about Charles’ conduct offer any excuse for this behavior.

          That leaves the possibility that Charles brought this confrontation upon himself
by physically resisting the officers’ attempts to arrest him. Some testimony supports this
theory.     According to Stoneburner, Charles said, “I’m not going,” and resisted
handcuffing by “stiffen[ing] his back.” Stoneburner Dep. at 45. But not all of the
testimony supports this theory, and that suffices to defeat it. According to Charles, he
said no such thing and he attempted to straighten his back only so that he could breathe.
These dueling accounts create a question of fact about whether Charles resisted arrest.
If he did resist, the officers’ force may well have been reasonable. See Hagans v.
Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012). If not, they likely
crossed the line into the forbidden grounds of excessive force. Id. On this factual
record, the officers are not eligible for qualified immunity.

          The same is true of Charles’ independent claim that the officers injured his wrist
through the gratuitously tight placement of handcuffs. According to Charles, the officers
refused to loosen his handcuffs when asked, and he suffered a sprained wrist as a result.
Id. at 41–42. According to the officers, they loosened the handcuffs when Charles
complained. Stoneburner Dep. at 48–49. Unduly tight handcuffing may constitute
excessive force if the officers ignored the plaintiff’s complaints and the claimant
No. 12-1963          Smith v. Stoneburner                                        Page 11


establishes a physical injury from the incident. Lyons v. City of Xenia, 417 F.3d 565,
575–76 (6th Cir. 2005). Charles meets both requirements: He claims his pleas for relief
went unanswered, and the handcuffs left him wearing a cast for a week. Any dispute
about whose account is right is for the jury.

          As for Donnetta’s excessive force claim, she alleges that Officer Stoneburner
shoved her against the side of the house. Here, too, a fact dispute prohibits judicial
resolution of the claim. As Donnetta stepped between Stoneburner and Charles while
the officers were trying to arrest Charles, Stoneburner’s arm collided with her and
caused her to hit her head against the side of the house. In Donnetta’s eyes, Stoneburner
shoved her. In Stoneburner’s eyes, he inadvertently bumped her. Gratuitous shove? Or
inadvertent bump? The answer makes a difference, and it too falls within the bailiwick
of the jury. The district court correctly denied the officers’ request for qualified
immunity.

                                            D.

          Fourth up is a state law claim—whether the officers committed intentional torts
against the mother and son. Michigan law insulates police officers from intentional-tort
lawsuits if they acted within the scope of their employment, if their actions flowed from
discretionary rather than ministerial duties and if they acted in good faith. Odom v.
Wayne Cnty., 760 N.W.2d 217, 228 (Mich. 2008). Only the last element, good faith, is
in play. Unlike federal law, governmental immunity in Michigan is “subjective in
nature”: It “protects a defendant’s honest belief and good-faith conduct with the cloak
of immunity while exposing to liability a defendant who acts with malicious intent.” Id.
at 229.

          At this stage in the litigation, a reasonable jury could conclude that the two
officers acted in bad faith. If, as the Smiths allege, the officers banged Charles’ head
against a wall, refused to loosen his cuffs when asked and gratuitously shoved Donnetta,
a reasonable jury could find that they acted maliciously. If, as the officers allege,
Charles resisted arrest, the officers loosened his cuffs when asked and inadvertently
No. 12-1963        Smith v. Stoneburner                                   Page 12


bumped Donnetta, a reasonable factfinder could find they acted in good faith. This
claim also presents a jury question.

                                          III.

       For these reasons, we affirm.
