          United States Court of Appeals
                        For the First Circuit


No. 19-1677

                CHRISTOPHER CASTAGNA; GAVIN CASTAGNA,

                        Plaintiffs, Appellees,

                                  v.

               HARRY JEAN; KEITH KAPLAN; DARAN EDWARDS,

                       Defendants, Appellants.

     JEAN MOISE ACLOQUE; GARY BARKER; MICHAEL BIZZOZERO; TERRY
COTTON; RICHARD DEVOE; JON-MICHAEL HARBER; CLIFTON HAYNES; GAVIN
   MCHALE; KAMAU PRITCHARD; WILLIAM SAMARAS; STEPHEN SMIGLIANI;
  ANTHONY TROY; JAY TULLY; BRENDAN WALSH; DONALD WIGHTMAN; JAMES
 DOE, Individually; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN
DOE 4; JOHN DOE 5; JOHN DOE 6; JOHN DOE 7; JOHN DOE 8; JOHN
          DOE 9; JOHN DOE 10; JOHN DOE 11; JOHN DOE 12,

                             Defendants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Indira Talwani, U.S. District Judge]


                                Before

                      Lynch, Stahl, and Kayatta,
                            Circuit Judges.


     Nicole M. O'Connor, Senior Assistant Corporation Counsel,
City of Boston Law Department, with whom Eugene L. O'Flaherty,
Corporation Counsel, City of Boston Law Department, and Matthew M.
McGarry, Assistant Corporation Counsel, City of Boston Law
Department, were on brief, for appellants.
     Paul J. Klehm, with whom Benjamin L. Falkner and Krasnoo,
Klehm & Falkner LLP were on brief, for appellees.



                        April 10, 2020
            LYNCH, Circuit Judge.    This appeal raises the issue of

whether the three defendant Boston police officers were entitled

to qualified immunity for entering through the open door of a house

under the community caretaking exception to the Fourth Amendment's

warrant requirement.      We hold that the officers are entitled to

qualified immunity under these circumstances.        We reverse the

judgment for the plaintiffs and remand for the district court to

enter judgment for the defendants.

                                    I.

            Qualified immunity is "an immunity from suit rather than

a mere defense to liability."     Mitchell v. Forsyth, 472 U.S. 511,

526 (1985) (emphasis omitted). As such, a typical § 1983 defendant

raises the qualified immunity defense in a motion to dismiss or

motion for summary judgment.     Wilson v. City of Boston, 421 F.3d

45, 52 (1st Cir. 2005).     The officers in this case did not raise

their specific qualified immunity defense until they filed a motion

for judgment as a matter of law at the end of the jury trial, to

which the jury ruled for the officers.      But this case's "unusual

posture does not affect the viability of the qualified immunity

defense."    Id. at 53.

            "[W]hen a qualified immunity defense is pressed after a

jury verdict, the evidence must be construed in the light most

hospitable to the party that prevailed at trial."       Id. (quoting

Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999)).     We first


                                 - 3 -
recite the facts in the light most favorable to appellants Daran

Edwards, Harry Jean, and Keith Kaplan.                  Then we discuss this

lawsuit's procedural history.

A.      Facts

                On March 17, 2013, the appellees, brothers Christopher

and Gavin Castagna, hosted a St. Patrick's Day party for their

friends at Christopher's apartment, located on the first floor of

a three-story building at the intersection of East 6th Street and

O Street in South Boston.               The party was large enough that

Christopher and Gavin moved furniture in advance of the party's

start to accommodate the number of guests and purchased a keg of

beer.      One of the police officers later estimated that when he

arrived at the scene there were as many as thirty guests there.

As one guest testified, St. Patrick's Day in Boston is basically

"a big party throughout the entire city."

                By early evening, many of the guests at the Castagnas'

party were intoxicated. Different guests estimated that they drank

"between [twelve] and [fifteen] beers," eleven to thirteen beers,

"ten beers," and "seven or eight beers" that day, respectively.

                At 5:54 p.m., someone called 911 to report a loud party

at   the    intersection    of   East    6th   Street    and   O   Street,   the

intersection where Christopher's apartment was located.                At 7:29

p.m., police dispatch directed a group of officers to respond to

the call.       The officers sent were part of a unit composed of seven


                                    - 4 -
officers, including Edwards, Jean, and Kaplan.    Although the unit

normally worked in another neighborhood in the city, the officers

had been reassigned to South Boston for the St. Patrick's Day

holiday to supervise the parade in the morning and control "loud

crowds, partying, [and] fighting" in the afternoon and evening.

Many of the officers had done similar work on St. Patrick's Day in

prior years.

            The seven officers arrived at the scene at approximately

7:38 p.m.     At that point in the evening, Christopher's apartment

was the only one near the intersection with any observable signs

of a party.

            When Kaplan arrived on the scene, he heard screaming,

music, and talking coming from Christopher's apartment.       As he

approached the apartment, Kaplan saw two or three guests leave the

party. He thought one may have turned around and gone back inside,

possibly to warn the others.    In Kaplan's opinion, "[t]hey looked

like they were underage."      When he got close to the apartment,

Kaplan could see into it because the "door was wide open."       He

also could see through the top of the window that there were people

drinking inside.     He testified that his first objective after

arriving at the apartment was "to make contact with the owners."

            Edwards gave a similar account.    When he arrived, he

also heard loud music and, through an open window, saw people

drinking, some of whom he believed to be underage.


                                - 5 -
             Jean arrived slightly after his fellow officers.               He

also heard music, saw that the front door was open, and noticed

through the window that the people inside were drinking.             He, too,

believed that some of the guests were underage.1           As he approached

the apartment, Jean "saw a young male come stumbling outside" onto

the public sidewalk.        Jean testified that the young man "walked

around like -- you know, like a circle or half-circle, and then he

hurled over, vomiting, and he did that twice. And then he stumbled

back into the address that we were looking at."

             Kaplan reached the apartment door and yelled "hello"

several     times   and   then   "Boston    Police."     No   one   answered.

According to Kaplan, "[w]hen no one answered, we kind of walked

in."

             At that point, none of the officers were intending to

arrest anyone at the party, for underage drinking or any other

crime.     Kaplan explained that this response was in line with the

police     department's    normal   practice   for     responding   to   noise

complaints:     "Typically, we would just knock on the door, try to

see who the owners are and tenants and have them turn the music

down, shut the doors, keep the windows up and keep everything


       1  Christopher, the host, admitted that he did not know the
age of every guest at his party and did not ask to see anyone's
identification. In addition, many of the guests who were of legal
drinking age were only a few years older than twenty-one.      One
guest admitted at trial that at the time of the party she could
have looked underage.


                                    - 6 -
inside."   Indeed, several of the officers did not have their

handcuffs on them, which would have been necessary to make an

arrest, explaining that they left them behind to lighten their

load during a long day walking the parade route.

           The officers explained at trial that there were two

reasons for entering the home that evening:      (1) to respond to the

noise complaint by finding the homeowners and having them lower

the volume of their music and (2) to make sure that any underage

drinkers were safe, including the young-looking man who had vomited

outside the home and returned inside.

           Kaplan   explained   that   "[o]f   course,   there's   safety

involved when there's underage drinkers."        His goal was "to make

sure everyone was safe, community caretaker, . . . trying to make

sure that there weren't any other underage drinkers in there or

that nobody was sick and nobody was throwing up."        Jean testified

that his intention when entering the home "was strictly just . . .

the well-being check, . . . doing community caretaker work, and to

speak to the owner, . . . to locate him, speak to him what's going

on . . . because it was spilling onto the sidewalk."

           The guests were in the middle of a dance competition

when the police entered through the open door, and they did not

immediately respond.    Eventually, when they noticed the officers,




                                 - 7 -
the guests turned off the music.2   Kaplan explained that there had

been a complaint of underage drinking and asked for the homeowners.

          There was a lull in which no one answered.    Eventually

some of the guests told the police that the owner's name was

"Chris," but he was not in the room and was "in the back or the

bathroom or something to that effect."    Jean and another officer

went to look for Christopher while the others stayed in the kitchen

with most of the guests.

          The officers explained at trial why it was important to

talk to the owner of the property even though there was no longer

any disruptive, loud music.   Jean testified:   "[H]e's the person

in control of the apartment . . . . He's the one who would probably

authorize all these people to be here. . . . I don't know if it's

an abandoned apartment and they're just throwing a party in it."

Edwards agreed that it was important to talk to the homeowner

"[b]ecause the homeowner is the person who's in charge of the

apartment."

          As Jean and the other officer made their way down the

back hall, one of the guests heard them remark that they smelled




     2    One party guest testified that that she thought the music
had been turned off.    The police officers testified that their
general practice was to have the music turned down when responding
to noise complaints. The police officers were not asked at trial
if the music was turned off or merely down when they initially
entered the apartment. We assume arguendo the music was turned
off.


                              - 8 -
drugs.   The two officers knocked on the door of what they thought

was the bathroom but was in fact Christopher's bedroom.                  According

to Jean, the officers thought, "[w]e're going to let this guy use

the bathroom, and then we'll talk to him, you know.                       We were

patient.    We had no problem."         Jean eventually realized that the

room they were waiting outside of was probably not a bathroom when

he heard multiple voices coming from inside it, so he knocked on

the door again.       That was when Christopher and Gavin, who were

inside with two other guests, heard the knocking at the door.

Christopher   opened    the    door     for    the    officers.        Christopher

testified that this was the first time he realized police were in

the apartment.

            After   Christopher       opened    the     door     for   Jean,   Jean

announced   himself    as     "Boston    Police."         Jean    observed     that

Christopher appeared to have been drinking and noticed that there

was marijuana in the bedroom.         Christopher saw Jean looking at the

marijuana, and in response he pushed Jean, slammed the door on

Jean's foot, and held the door there.3               Jean pushed the door back

open, freeing his foot, and walked into the room.




     3    Under state law in 2013, possession of less than one
ounce of marijuana was a civil offense, subjecting the offender to
a fine and forfeiture of the marijuana. Mass. Gen. Laws ch. 94C,
§ 32L (repealed 2017). The marijuana found in Christopher's room
was seized and he was cited for it.



                                      - 9 -
             Edwards and Kaplan, who noticed that Jean and the other

officer were missing, went to the back rooms to look for them.            At

that point Edwards and Kaplan were still trying to figure out who

the homeowners were so that the officers could respond to the loud

party complaint.

             In the bedroom, Christopher shoved Jean a second time

and   the   conflict   between   the   officers   and   the   party   guests

escalated.     Other officers were called as back-up.          Eventually,

several of the guests and both brothers were arrested on various

charges.     The rest of the details about what happened in the

bedroom and after the other responding officers arrived are not

relevant to this appeal.4

B.    Procedural History

             Christopher and Gavin sued the twenty Boston Police

Officers who were involved in breaking up the party and arresting

them, including Edwards, Jean, and Kaplan.         The Castagnas brought

civil rights claims under 42 U.S.C. § 1983 and Mass. Gen. Laws ch.

12, §§ 11H and 11I, as well as state tort claims for false

imprisonment, assault and battery, false arrest, and malicious

prosecution.     By the start of the trial, the district court had




      4   The sole claim on appeal is the unlawful entry claim,
which was brought against only Edwards, Jean, and Kaplan and
relates just to the conduct described above.


                                  - 10 -
dismissed several claims and removed from the lawsuit thirteen of

the twenty defendants.

            The trial was held over eight days between June 11 and

21, 2018.     The Castagnas each advanced seven claims, brought

variously against the seven remaining police officer defendants:

unlawful    entry    under   § 1983,   unlawful     seizure   under   § 1983,

excessive force under § 1983, violation of the First Amendment

under § 1983, assault and battery, false arrest, and malicious

prosecution. The unlawful entry claim was brought against officers

Edwards, Jean, and Kaplan only.

            As to the unlawful entry claim, the district court

declined to instruct the jury on the community caretaking exception

to   the   warrant    requirement      over   the   defense's   objections,

explaining that it was not adequately defined in the law.             Instead

the jury was instructed on the exigent circumstances exception

only, and the court stated that it would consider arguments about

community caretaking in the context of qualified immunity after

the jury returned its verdict.5


     5    The jury instructions for the unlawful entry claim were
as follows:
          Under the Fourth Amendment, no person shall be
          subjected to a warrantless search of his or
          her home except under exigent circumstances,
          that is, circumstances requiring immediate
          action and with probable cause.
               Probable cause exists if the facts and
          circumstances known to the Defendant are
          sufficient to warrant a reasonable police


                                    - 11 -
            Before the jury returned with its verdict, Edwards,

Jean, and Kaplan filed a motion for judgment as a matter of law,

in which they argued that their entry into both the apartment and

the bedroom was justified by the community caretaking exception to

the warrant requirement. Further, they argued that were entitled

to qualified immunity on the same grounds and because the law on

community caretaking in 2013 did not clearly establish that their

entry violated either brother's constitutional rights.

            The jury reached a unanimous verdict in favor of all of

the defendants on all counts. As to the unlawful entry claim under

§ 1983, the jury was asked on the verdict form if Christopher or

Gavin had proven by a preponderance of the evidence that Edwards,

Kaplan,    or   Jean   had   violated    their   constitutional   rights   by

entering    either     Christopher's     apartment   or   specifically     his

bedroom on March 17, 2013.              The jury responded "no" to each

question for each of the three officers. The district court denied

as moot Edwards, Jean, and Kaplan's motion for judgment as a matter




            officer in believing that the plaintiff has
            committed   or   is   committing   a    crime.
                 Circumstances requiring immediate action
            are limited to the following:
                 1. hot pursuit of a fleeing felon;
                 2. threatened destruction of evidence;
                 3. risk of escape; and
                 4. threat to the lives and safety of the
                 public, the police, or the plaintiff.


                                   - 12 -
of law on the unlawful entry claim in light of the jury verdict in

their favor.

          On July 20, 2018, the Castagnas moved for a new trial,

arguing that "the jury's finding that Defendants Kaplan, Edwards

and Jean are not liable to Plaintiffs under 42 U.S.C. § 1983 for

the unlawful entry into Christopher Castagna's home, or, at the

very least, into Christopher Castagna's bedroom," is "against the

law, the weight of credible evidence and constitutes a miscarriage

of justice."6

          On January 17, 2019, the district court granted the

Castagnas' motion for a new trial, finding "that the verdict is

against the law as to the warrantless entry into the home and that

the warrantless entry on the facts at trial is not protected by

qualified immunity."   The court said the entry into the bedroom

claim was merely a subset of the entry into the home claim, thereby

saying it was not an independent claim.

          Because the only issues still to be resolved at that

point in the proceedings were legal issues, instead of holding a




     6    The Castagnas also argued that a new trial was warranted
because "the Court improperly instructed the jury regarding
disorderly conduct or disturbing the peace" and "in her closing,
Defendants' counsel made improper references to Plaintiff
Christopher Castagna being a racist, even though there was no
evidence at trial that demonstrated that he was a racist, and the
Court's curative instruction to the jury failed to cure the error."
The district court rejected these arguments, and the plaintiffs
have not appealed these denials.


                              - 13 -
new trial, the court instructed the Castagnas to move orally under

Fed. R. Civ. P. 52 for the court to amend the judgment so that

Edwards, Jean, and Kaplan would be liable for the unlawful entry

claim. Without conceding their liability, the three officers moved

for a ruling that the Castagnas had not proven a right to any

damages beyond nominal damages.

            On June 28, 2019, the district court amended its judgment

under Fed. R. Civ. P. 52 so that it reflected a judgment in favor

of Christopher and Gavin and against Edwards, Jean, and Kaplan as

to the § 1983 unlawful entry claim.         The court awarded the two

brothers one dollar in nominal damages from each of the three

officers.     The court did not disturb any of the other jury

verdicts.

            This timely appeal followed.7




     7    Edwards, Jean, and Kaplan make two arguments on appeal
that we do not reach because we hold that they were entitled to
qualified immunity.
          First, they argue that the Castagnas "made a strategic
choice" not to bring a motion for judgment as a matter of law, and
in fact, were the parties to initially suggest a jury instruction
on exigent circumstances.      When the district court gave the
instruction, they did not object.     Having made these strategic
choices, the officers argue, it was an abuse of discretion for the
district court to then grant the Castagnas a new trial to save
them from the consequences of those choices. Specifically, the
officers argue that the district court misapplied the legal
standards for granting a new trial by conducting a purely legal
analysis, rather than one "keyed to the trial's fairness."       In
their view, the fact that the district court declined to actually
hold a new trial and instead heard oral cross-motions pursuant to
Fed. R. Civ. P. 52 only highlighted why the trial was fundamentally

                                - 14 -
                               II.

           Edwards, Jean, and Kaplan were entitled to qualified

immunity for the unlawful entry claim under a community caretaking

theory.8   As we explain below, neither part of the test for

defeating qualified immunity has been met:    the officers' entry

into the home was in fact constitutional under the community

caretaking exception and it was not clearly established at the

time of their entry that the community caretaking exception would

not give them an immunity defense.9



fair and the new trial motion never should have been granted in
the first place.
          Second, the officers argue that, even assuming the
district court's premise that it could grant a new trial motion in
these circumstances, the court was wrong to find that the jury's
verdict was against the law or weight of credible evidence. There
was sufficient evidence for the jury to have considered and applied
the emergency aid part of the exigent circumstances exception to
the warrant requirement. Any finding to the contrary must have
been based on the court's own assessment of witness credibility,
which would be error.       And even though the jury was never
instructed on the community caretaking exception to the warrant
requirement, "there was sufficient evidence for the jury to
consider and decide the applicability of the community caretaking
exception, [so] the jury's decision in [the officers'] favor was
not unfair and did not affect [the Castagnas'] substantial rights."
          Again, we do not reach these arguments.
     8    On appeal, the officers also argue that they are entitled
to qualified immunity because their entry fell within the emergency
aid exception to the warrant requirement. We need not reach this
argument.

     9    As to qualified immunity for community caretaking, the
officers argue,
          [q]ualified immunity impacts the instant case
          in two ways. First, as a general matter, the
          doctrine is "an immunity from suit" and so if


                              - 15 -
          As to the claim made at trial that the entry into the

bedroom constituted a separate offense, it is waived. It is waived

because the district court did not grant a new trial on that ground

and plaintiffs have not cross-appealed.   It is also waived because

it has not been briefed as required on appeal.   See United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

A.   Qualified Immunity Framework

          When sued in their individual capacities, government

officials like police officers Edwards, Jean, and Kaplan are immune

from damages claims unless "(1) they violated a federal statutory

or constitutional right, and (2) the unlawfulness of their conduct

was 'clearly established at the time.'"   Eves v. LePage, 927 F.3d

575, 582-83 (1st Cir. 2019) (en banc) (quoting District of Columbia



          it applied here, the District Court should not
          have permitted Plaintiffs to proceed further
          against Defendants.    White v. Pauly, 137 S.
          Ct. 548, 551 (2017).        Second, qualified
          immunity is intertwined with the standard for
          a new trial; specifically, Federal Rule of
          Civil Procedure 61 provides that no error "is
          ground for granting a new trial [or] setting
          aside a verdict" unless "justice requires
          otherwise," and further, that "the court must
          disregard all errors and defects that do not
          affect any party's substantial rights."
          Consequently, if Defendants were entitled to
          qualified immunity, then a verdict in favor of
          Defendants   did    not   affect   Plaintiffs'
          substantial rights.
          Because we hold that that the defendants were entitled
to immunity and thus should not have had judgment entered against
them, we do not analyze the issue in relation to the standard for
a new trial.

                              - 16 -
v. Wesby, 138 S. Ct. 577, 589 (2018)).               Courts may analyze either

part of the test first.           See id. at 584.

            The     "clearly       established"     inquiry     itself     has     two

elements.         The    first     is    focused    on   whether     the   law     was

"'sufficiently clear' such that every 'reasonable official would

understand that what he is doing' is unlawful."                        Id. at 583

(alterations      omitted)       (quoting    Wesby,      138   S.    Ct.   at    589).

Qualified immunity is supposed to "protect 'all but the plainly

incompetent    or       those    who    knowingly   violate    the    law.'"      Id.

(alteration omitted) (quoting White v. Pauly, 137 S. Ct. 548, 551

(2017)).

            Because of that, the right that was allegedly violated

must be defined "in a particularized sense so that the contours of

the right are clear to a reasonable official."                       Id. (internal

quotation marks omitted) (quoting Reichle v. Howards, 566 U.S.

658, 665 (2012)).           "[E]xisting precedent must have placed the

statutory or constitutional question beyond debate."                   Id. (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In Eves v. LePage,

this court sitting en banc found that the defendant was entitled

to qualified immunity where "it is 'at least arguable'" that the

defendant's actions were constitutional, id. (quoting Reichle, 566

U.S.   at 669), and where "[t]here was no 'controlling authority'

or even a 'consensus of cases of persuasive authority,'" id. at

584 (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).


                                         - 17 -
                 The   second   element    "focuses    on    the   objective        legal

reasonableness of an official's acts," and "[e]vidence concerning

the defendant's subjective intent is simply irrelevant."                           Id. at

583 (internal quotation marks and alteration omitted) (quoting

Crawford-El v. Britton, 523 U.S. 574, 588, 590 (1998)).                              This

element provides "some breathing room for a police officer even if

he    has    made      a   mistake   (albeit   a    reasonable       one)   about     the

lawfulness of his conduct."            Gray v. Cummings, 917 F.3d 1, 10 (1st

Cir. 2019) (quoting Conlogue v. Hamilton, 906 F.3d 150, 155 (1st

Cir. 2018)).

B.   The Officers Are Entitled to Qualified Immunity Because Under
the Community Caretaking Exception Their Entry Through the Open
Door of the Home Did Not Violate Plaintiffs' Constitutional Rights

                 Edwards, Jean, and Kaplan are entitled to qualified

immunity for entering Christopher's apartment under the first

prong of the test for qualified immunity.                    See Eves, 927 F.3d at

584.        The entry did not violate the Castagnas' constitutional

rights because the officers were allowed to enter the apartment

through the open door under the community caretaking exception to

the warrant requirement.

                 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.         In    general,      "warrantless       entries    into     a    home     'are

presumptively unreasonable.'"              Morse v. Cloutier, 869 F.3d 16, 23


                                          - 18 -
(1st Cir. 2017) (quoting Payton v. New York, 445 U.S. 573, 586

(1980)).

             There are exceptions to the warrant requirement.                   One is

the community caretaking exception, first described by the Supreme

Court in Cady v. Dombrowski, 413 U.S. 433 (1973).                     In Cady, police

officers searched a disabled car without a warrant because they

believed that there was a gun in the car's trunk and the car was

vulnerable to vandals.         413 U.S. at 448.           The Court held that the

search     was    constitutionally           permissible        because    it   was    a

reasonable       exercise     of     the     officers'        "community    caretaking

functions," explaining that officers are often called on to act in

ways   "totally     divorced       from     the     detection,      investigation,    or

acquisition of evidence relating to the violation of a criminal

statute." Id. at 441. This circuit has long applied the community

caretaking       exception    described           in   Cady    in    the   context    of

automobiles.       See, e.g., United States v. Rodriguez-Morales, 929

F.2d 780, 785 (1st Cir. 1991).

             This year, after the district court in this case issued

its    decision,    this     court    held     that    the     community    caretaking

exception could be used to justify police officers' entry into

homes as well.       Caniglia v. Strom, 953 F.3d 112, 124 (1st Cir.

2020).     Police are entitled to enter homes without a warrant if

they are performing a community caretaking function and their

actions are "within the realm of reason."                       Id. at 123 (quoting


                                           - 19 -
Rodriguez-Morales, 929 F.2d at 786).         We apply the analysis laid

out in Caniglia and hold that the officers' entry was justified

under   the    community   caretaking       exception      to   the   warrant

requirement.

           When   determining     whether   the   officers'     actions    are

protected by the community caretaking exception, we "look at the

function performed by [the] police officer."             Id. at 125 (quoting

Matalon v. Hynnes, 806 F.3d 627, 634 (1st Cir. 2015)).                     The

function performed must be "distinct from 'the normal work of

criminal   investigation'"   to    be   within    "the    heartland   of   the

community caretaking exception."        Id. (quoting Matalon, 806 F.3d

at 634-35).    Actions within that heartland include actions taken

to "aid those in distress, combat actual hazards, prevent potential

hazards from materializing, and provide an infinite variety of

services to preserve and protect community safety."               Rodriguez-

Morales, 929 F.2d at 784-85 (citing Wayne LaFave, Search and

Seizure § 5.4(c) (2d ed. 1987)); see also Wayne LaFave, Search and

Seizure § 5.4(c) (5th ed. 2012) (similar).

           Here, the function being performed by Edwards, Jean, and

Kaplan was a community caretaking one.         When the officers arrived

at the scene, they saw intoxicated guests who appeared to be

underage entering and exiting a party freely through an open door.

Jean saw a guest that looked underage leave the house, throw up

twice outside, and then reenter the apartment.            The party was loud


                                  - 20 -
enough to be heard from the street.             In their efforts to have the

music turned down and make sure any underage guests were safe,

they    were    aiding    people     who    were     potentially     in    distress,

preventing hazards from materializing, and protecting community

safety.

               In   determining      whether    the    officers'     actions     are

protected by the community caretaking exception, we also must

"balance . . . the need for the caretaking activity and the

affected    individual[s']        interest      in    freedom     from    government

intrusions"         to   determine     if    the      officers'     actions    were

reasonable.10       Caniglia, 953 F.3d at 125.

               The officers acted reasonably.             The officers had an

implicit invitation to go up on the porch and knock on the

apartment's door.        See Florida v. Jardines, 569 U.S. 1, 8 (2013).

The officers did not enter the home until announcing themselves

and failing to get the guests' attention.                They needed to get the

attention of the homeowner because he is the person ultimately

responsible for the impact of the party on the neighborhood.

Because they were responding to a 911 call reporting a noise




       10 In Caniglia, this court declined to decide whether
probable cause or merely reasonableness was necessary to seize the
plaintiff under the community caretaking exception, noting that
the standard in that case might be higher because it is "of a
greater magnitude than classic community caretaking functions like
vehicle impoundment." Caniglia, 953 F.3d at 127. In this appeal,
we apply our traditional reasonableness test.


                                       - 21 -
complaint, the officers knew that people in the neighborhood were

disturbed by the party.     In addition, underage drinkers pose a

safety risk.    This is especially true on a holiday known for

drinking and one that requires extra police officers to be deployed

throughout the city.

          Given the open front door, the people coming in and out

of that open door at will, the evident lack of supervision by the

owner of who entered, and the owner's failure to respond, any

expectation of privacy was greatly diminished.       It was objectively

reasonable for an officer to have on-going concerns about noise

complaints and underage drinking and determine that they might be

easily resolved by entering through an open door (the same one the

guests were coming and going through freely) to bring these

complaints to the owner's attention.11

          The   officers'   actions   do   not   implicate    any   of   the

"limitations" on the community caretaking doctrine.          Caniglia, 953

F.3d at 126.    Nothing the officers said or did reasonably raises

the possibility that they were relying on concerns about the noisy,


     11   In a 28(j) letter, the plaintiffs argue that Caniglia
allows warrantless entry into homes under the community caretaking
exception only when there is immediate danger. Not so. Caniglia
happened to implicate the specific community caretaking function
of trying to prevent someone in a state of crisis from using
firearms. 953 F.3d at 125. That serious risk of harm was balanced
against   relatively   serious   government  incursions   on   the
individual's personal freedoms. Id. Police officers perform a
variety of functions when in their community caretaking role, not
all of which must implicate a risk of imminent harm.


                                - 22 -
open,   and   unsupervised   party   as   "a   mere   subterfuge   for

investigation" of a crime.     Id. (quoting Rodriguez-Morales, 929

F.2d at 787).   Even if they had been motivated in part to enforce

underage drinking laws, for example, "the possible existence of

mixed motives will not defeat the officer's . . . entitlement to

the exception."   Matalon, 806 F.3d at 635; see also Caniglia, 953

F.3d at 128 (applying the community caretaking exception where the

plaintiff was "imminently dangerous" to others and thus had the

potential to commit a criminal offense).

          The officers were able to give "specific articulable

facts," Caniglia, 953 F.3d at 126 (quoting United States v. King,

990 F.2d 1552, 1560 (10th Cir. 1993)), to show their actions were

"justified on objective grounds," id. (quoting Rodriguez-Morales,

929 F.2d at 787). They were able to describe specific observations

about the party, its effect on the neighborhood, and their reasons

for being concerned about at least some of the guests' safety.

They could articulate why it was necessary to enter the home to

talk to the homeowner when they could not get anyone's attention

from outside of the house.    The plaintiffs try to undermine this

by arguing that the officers' actions, such as not immediately

searching out the vomiting teenager, for example, show a subjective

lack of concern for the party guests' safety.    But the proper test

is objective, and people who are below the legal drinking age and

apparently sick from alcohol are an objective safety risk.


                               - 23 -
           Further, the officers' actions "dr[e]w their essence"

from "sound police procedure."       Id. (citing Rodriguez-Morales, 929

F.2d at 785).     As said in Caniglia, "sound police procedure" is

defined "broadly and in practical terms."          Id.   The definition

"encompasses police officers' 'reasonable choices' among available

options." Id. (quoting Rodriguez-Morales, 929 F.2d at 787). There

is no requirement that the officers had to have waited for a longer

period outside the door, for example, in the hopes that someone

eventually would hear them and fetch the owners without them ever

entering the home.       There is "no requirement that officers must

select   the    least    intrusive   means   of   fulfilling   community

caretaking responsibilities."        Id. (quoting Lockhart-Bembery v.

Sauro, 498 F.3d 69, 76 (1st Cir. 2007)).

C.   The Officers Are Entitled to Qualified Immunity Because in
2013 the Law Was Not Clearly Established that Entering the Home
Was Unconstitutional Under the Community Caretaking Exception

            The officers are entitled to qualified immunity under

the second prong of the qualified immunity test as well. See Eves,

927 F.3d at 584.        In 2013, there was no clearly established law

that the officers' entrance into the apartment fell outside of the

scope of the community caretaking exception.

           As said, this circuit had not explicitly held until this

year that the community caretaking exception could be applied to

homes.   Before 2013, some circuits had held that Cady's community

caretaking exception applies only to automobiles, not homes.        See


                                  - 24 -
Ray v. Twp. of Warren, 626 F.3d 170, 176-77 (3d Cir. 2010)

(collecting cases).     But three other circuits before that date had

applied the exception to homes as well as automobiles.          See United

States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006); United

States v. Rohrig, 98 F.3d 1506, 1520-23 (6th Cir. 1996);12 United

States v. York, 895 F.2d 1026, 1029-30 (5th Cir. 1990).                 And

neither the First Circuit nor the Supreme Court had held that the

exception was limited to automobiles.         In Lockhart-Bembery, this

circuit did not limit the exception's application to the mere

search of a car; it upheld an order by police officers to move a

car off the side of a public road for safety reasons.          498 F.3d at

75-77.

           There was no consensus of persuasive authority at the

time of the officers' entry that the community caretaking exception

could only apply to automobile searches.           We reached the same

conclusion in MacDonald v. Town of Eastham, 745 F.3d 8 (1st Cir.

2014), an opinion that post-dates the Castagnas' party by a year

but   relies   on   precedents   that   all   pre-date   the   party.   In

MacDonald, this court explained that "the scope and boundaries of




      12  The Sixth Circuit wrote about "exigent circumstances" as
well as community caretaking, but we still understand this case as
applying a version of the community caretaking exception. As we
discussed in MacDonald v. Town of Eastham, 745 F.3d 8 (1st Cir.
2014), "courts do not always draw fine lines between the community
caretaking exception and other exceptions to the warrant
requirement." Id. at 13.


                                  - 25 -
the community caretaking exception [were] nebulous [in 2014]," but

precisely because of this legal uncertainty, the court determined

that the law was not clearly established that community caretaking

could not apply to searches of a home.       Id. at 14.

           Nor was there a consensus of authority in 2013 that the

specific   circumstances    surrounding   the    officers'        entry   into

Christopher's   apartment     made   their      entry     an     unreasonable

application of the community caretaking doctrine.              This circuit's

pre-2013   community   caretaking    decisions      had        established   a

framework for when the exception might apply to officers' searches.

These decisions were the basis for the law applied in Caniglia.

           The community caretaking exception is a recognition that

           [t]he policeman plays a rather special role in
           our society; in addition to being an enforcer
           of the criminal law, he is a "jack-of-all-
           emergencies," W. LaFave, Search and Seizure
           § 5.4(c) (2d ed. 1987), expected to aid those
           in distress, combat actual hazards, prevent
           potential hazards from materializing, and
           provide an infinite variety    of services to
           preserve and protect community safety. . . .
           The rubric is a catchall for the wide range of
           responsibilities that police officers must
           discharge    aside   from    their    criminal
           enforcement activities.

Rodriguez-Morales, 929 F.2d at 784-85.

           The imperatives of the Fourth Amendment are
           satisfied in connection with the performance
           of   non-investigatory    duties,   including
           community caretaking tasks, so long as the
           procedure involved and its implementation are
           reasonable. [Rodriguez-Morales, 929 F.3d at
           785.] The community caretaking doctrine gives


                                - 26 -
          officers a great deal of flexibility in how
          they carry out their community caretaking
          function. See id. The ultimate inquiry is
          whether, under the circumstances, the officer
          acted "within the realm of reason." Id. at
          786.   Reasonableness does not depend on any
          particular factor; the court must take into
          account the various facts of the case at hand.

Lockhart-Bembery, 498 F.3d at 75 (some citations omitted).           In

2013, like today, "[t]here [was] no requirement that officers must

select   the   least   intrusive    means   of   fulfilling   community

caretaking responsibilities."      Id. at 76.

          The officers in 2013 also could have looked to other

circuits that had had applied the community caretaking exception

to warrantless entries into homes in circumstances analogous to

this case. The Sixth Circuit, in Rohrig, held that police officers

were permitted to enter a home without a warrant to search for the

homeowner where they were responding to a noise complaint, knocked

on the door and received no response, the door was open, and the

officers announced their presence.       98 F.3d at 1509.     The court

understood this entry as an example of the officers exercising

their "community caretaking functions," id. at 1521 (citing Cady,

413 U.S. at 441), and said that their actions were reasonable

"because nothing in the Fourth Amendment requires us to set aside

our common sense," id.

          Similarly, in York, the Fifth Circuit held that the

community caretaking exception applied to officers' entry into a



                                - 27 -
home when they were protecting guests who were removing their

belongings from the house of a host who had become abusive and

threatening.    895 F.2d at 1029-30.      The court in York found it

relevant that the host was exhibiting drunken behavior and was

posing a risk of harm to others.       Id. at 1030.

            The Eighth Circuit, in an opinion by Judge Arnold,

affirmed the denial of a motion to suppress evidence, holding that

the community caretaking exception provided the police officer

with a lawful basis for entering a home.            Quezada, 448 F.3d at

1007-08.    In that case, an officer attempting to serve a child

protection order became concerned that the homeowner was in the

house but somehow unable to respond.       Id. at 1008.     He knocked on

the apartment door, which swung open on his knocking, and announced

himself by yelling into the apartment several times.          Id. at 1006.

When he heard no response, he entered the home.         Id.

            Given this legal background, the officers could not have

been on notice that their actions would clearly violate the

Castagnas' constitutional rights.         The officers testified that

they were not intending to arrest anyone at the party; as in

Rohrig, they merely wanted to make sure the music was turned down

so it would stop disturbing the neighbors.          As in York, they were

concerned    with   mitigating   the    risk   of    harm   of   excessive

drunkenness.    Like the officer in Quezada, the police officers

here knocked on the door and announced themselves before entering.


                                 - 28 -
Their actions were at least arguably within the scope of the

community caretaking exception.   And for many of the same reasons

discussed earlier in the opinion, their actions were at least

arguably reasonable under the law in 2013.

          As this circuit held in MacDonald, a similar case in

which officers announced their presence at an open door, received

no reply, and entered a home without a warrant, "neither the

general dimensions of the community caretaking exception nor the

case law addressing the application of that exception provides the

sort of red flag that would have semaphored to reasonable police

officers that their entry into the plaintiff's home was illegal."

745 F.3d at 15. "Qualified immunity is meant to protect government

officials where no such red flags are flying, and we discern no

error in the application of the doctrine to this case."        Id.

(citation omitted).

D.   Plaintiffs Waived the Argument that the Officers Violated
Their Rights by Remaining in the House After the Music Was Turned
Off

          We briefly address the claim that the officers are

separately liable for violating the Castagnas' constitutional

rights, not only by entering the apartment originally, but by

remaining in the apartment after the music was turned off and going

toward the bedroom to look for the homeowner.13       Although the


     13   The testimony taken in the light most favorable to the
defendants shows that the officers knocked on the bedroom door and


                              - 29 -
officers' decision to remain in the apartment is more problematic

than    their   decision     to   enter   the   apartment      originally,    the

Castagnas    have   waived    the   argument    that    this    is   a   separate

violation of their rights.

            The argument that there are two separately actionable

Fourth Amendment claims in this case was made in the district

court, but in its new trial order, the district court did not

analyze the unlawful entry claim that way.             The plaintiffs did not

take a cross-appeal from the ruling that the entry into the bedroom

claim was not independent of the entry into the home claim.

            Regardless, the argument is waived for lack of developed

argument on appeal.          The plaintiffs' statement of issues only

discusses the claim about the initial unlawful entry into the

home.14     The only legal support provided by the plaintiffs for

their contention that these should be analyzed as separate claims

are two inapposite district court opinions. See Barbosa v. Hyland,




Christopher answered it. When Christopher saw Jean looking at the
marijuana in his bedroom, he intentionally slammed the door on
Jean's foot. Once he did that, Jean would have been entitled to
enter the bedroom to arrest Christopher.
       14 Plaintiffs' briefing suggests there are potentially two
actionable claims where they argue in the alternative that
"[a]ssuming arguendo that Defendants' initial minimal entry was
permissible for the purpose of gaining the attention of the guests,
they could go no further after doing so" because "they had
accomplished their goal" of turning off the music and were not
trying to help the teenager who had twice vomited outside.



                                     - 30 -
No. 11-11997-JGD, 2013 WL 6244157 (D. Mass. Dec. 2, 2013); Walker

v. Jackson, 952 F. Supp. 2d 343 (D. Mass. 2013).15   Arguments made

perfunctorily and without developed argumentation are waived.

See, e.g., Jordan v. Town of Waldoboro, 943 F.3d 532, 546-47 (1st

Cir. 2019) (citing Zannino, 895 F.2d at 17).

                               III.

          We reverse the judgment for the Castagnas and remand

for the district court to enter judgment for Edwards, Jean, and

Kaplan.




     15   Walker discussed the emergency aid exception, not the
community caretaking exception. The district court in Walker found
that an officer who searched the home after two other officers had
already completed a search was not covered by the exception. 952
F. Supp. 2d at 349-50. In Barbosa, the district court specified
that the officers "did not enter or remain in the house for any
reasons supported by the community caretaking doctrine," but both
aspects of the claim are analyzed together. 2013 WL 6244157, at
*7-9.


                              - 31 -
