                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-3864
                                  ___________

Andre Guite,                         *
                                     *
      Plaintiff - Appellee           *
                                     *
      v.                             * Appeals from the United States
                                     * District Court for the
James Wright; Steven James LaShomb, * District of Minnesota
                                     *
      Defendants - Appellants        *
                                ___________

                            Submitted: May 15, 1998
                              Filed: June 26, 1998
                                 ___________

Before R. ARNOLD and FAGG, Circuit Judges, and BOGUE,1 District Judge.
                            ___________


BOGUE, Senior District Judge


      The defendants appeal the district court’s2 denial of their summary judgment
motion. We affirm in part and dismiss in part.



      1
        The Honorable Andrew W. Bogue, Senior United States District Judge for the
District of South Dakota, sitting by designation.
      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                           I.

       On October 27, 1995, a plain clothed police officer, defendant Wright, and three
uniformed officers, including defendant LaShomb, arrived at the home of the plaintiff,
Guite, to question his teenage son (David) about a series of armed robberies which had
occurred in their city over the previous three nights.3 Earlier that afternoon Officer
Wright positively identified David as a suspect in the robberies. Wright and LaShomb
approached the door of the home as the other officers watched the premises. When
Guite answered the door, Wright asked to see David. Guite told the officers to either
produce an arrest warrant or leave his premises, to which Wright replied that he did not
need a warrant. At this point David approached and was standing near the entrance of
the house. Guite alleges that LaShomb then took hold of his wrist, pushed him inside
the house, and held him up against the open door to prevent him from interfering with
the arrest of his son. Concurrently, he alleges, Wright entered the home, grabbed
David, pulled him outside and arrested him.4

       Guite brought the present action pursuant to 42 U.S.C. § 1983 alleging violations
of his Fourth Amendment right against warrantless entry into his home and against the
use of excessive force upon his person. The defendants filed a motion for summary
judgment asserting qualified immunity. The district court denied the defendants’
motion finding the officers’ entry into Guite’s home violated clearly established law
which a reasonable officer should have known. The court further held that the use of
force could be found unconstitutional under all the facts and circumstances, and that
there is a genuine issue of whether force was needed under the circumstances.



      3
        As the district court noted, there are “significant differences in the facts as
reported by the various witnesses” regarding what occurred after the police arrived.
Our recitation of the facts derives from the district court’s summary of the facts made
in a light most favorable to the plaintiff.
      4
       David Guite faced juvenile court proceedings, and is not a plaintiff in this case.
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       The defendants’ appeal is two-part. First, they appeal the district court’s denial
of summary judgment based on qualified immunity. Second, they argue the district
court erred in failing to distinguish the claims asserted against the defendants and grant
summary judgment where the facts did not support further litigation.

                                           II.

        We review de novo the legal issue of the existence of qualified immunity. Rowe
v. Lamb, 130 F.3d 812, 814 (8th Cir. 1997). In reviewing a denial of summary
judgment, we view the evidence in the light most favorable to the nonmoving party and
we accept as true the nonmoving party’s account of the facts where there are material
inconsistencies. Rogers v. Carter, 133 F.3d 1114, 1117 (8th Cir. 1998). Two
requirements must be satisfied in order to defeat a defendant’s claim of qualified
immunity at the summary judgment stage. First, the plaintiff must allege a violation of
a constitutional right. Second, the allegedly violated constitutional right must have
been clearly established at the time of the alleged violation. Id. For a constitutional
right to be clearly established, the contours of that right must be sufficiently clear and
specific that a reasonable official would understand that what he is doing violates that
right. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). In this case, the
plaintiff has alleged two Fourth Amendment violations: warrantless entry into his home
and use of excessive force against him.

       It is clearly established that the Fourth Amendment prohibits a warrantless entry
into a suspect’s home to make a routine felony arrest absent consent or exigent
circumstances. Rogers, 133 F.3d at 1118 (citations omitted). See also, Steagald v.
United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)(In the absence of
consent or exigent circumstances, an officer may not search for a suspect in a third
party’s home without first obtaining a search warrant); and Payton v. New York, 445
U.S. 573, 588-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980)(Absent exigent
circumstances, the threshold of a home may not reasonably be crossed without a


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warrant). Under well-established law, therefore, the type of intrusion alleged by Guite
would violate his Fourth Amendment rights, unless the officers can show exigent
circumstances requiring a warrantless entry.

        We agree with the district court that the evidence of exigent circumstances was
not sufficient to support summary judgment. The officers were not in hot pursuit of
David. Officer Wright testified that they had no reason to believe David might be
carrying a weapon, and they were not concerned for the safety of the other occupants
of the house. Wright also testified that there was a sufficient number of officers
accompanying him such that they could have surrounded the home to prevent any
escape. The defendants argue that exigent circumstances existed because it was late
in the afternoon, there was no time to obtain a warrant before the close of business, and
they were concerned that the robbery spree might continue if they did not stop David
immediately. These “exigencies” are vitiated, however, by the fact that the officers
knew David was in the house, and had enough personnel to cover the house and
prevent his escape while a warrant was obtained. And despite the defendants’ claims
that there was not enough time to obtain a warrant, after they arrested David, they were
able to obtain a search warrant for Guite’s premises. As the district court noted, there
is at least a genuine issue whether the officers could have surrounded the home pending
the issuance of an arrest warrant. Under these circumstances, summary judgment was
properly denied.

       Similarly, we conclude that summary judgment was properly denied on the
excessive force issue. The right to be free from excessive force is a clearly established
right under the Fourth Amendment’s prohibition against unreasonable seizures of the
person. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989);
Greiner v. City of Champlin, 27 F.3d 1346 (8th Cir. 1994). However, not every push
or shove violates the Fourth Amendment. Graham, 490 U.S. at 396, 109 S.Ct. at 1872.
Rather, the test is whether the force used to effect a particular seizure is “reasonable.”
Id. “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: the


                                           -4-
question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation.” Id. at 397, 109 S.Ct. at 1872 (citation omitted).

        Here, Guite alleges that after he told the officers to leave his property, LaShomb
grabbed his wrist, pushed him backwards, and held him up against the open door inside
the house. Guite further alleges that LaShomb acted concurrently with Wright’s entry
and seizure of David to prevent Guite’s interference therewith. Moreover, at the time,
Guite was recovering from surgery on his left shoulder and was wearing a sling on his
left arm when he answered the door. Under these circumstances, we agree that there
is a genuine issue of whether force was needed and whether such force was excessive
under the circumstances. See, Walton v. City of Southfield, 995 F.2d 1331 (6th Cir.
1993)(summary judgment on qualified immunity properly denied because excessive use
of force claim could be premised on officer handcuffing plaintiff if he knew that she had
an injured arm and if he believed that she posed no threat to him).

       Finally, the defendants argue the district court erred in failing to distinguish the
claims asserted against each defendant and grant summary judgment where the facts
did not support the claims. They seek summary judgment on the excessive force claim
as applied to Officer Wright, and on the warrantless entry claim as applied to Officer
LaShomb. Ordinarily, a district court’s denial of summary judgment is not a final
appealable order. Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995); See 28 U.S.C. §
1291. An order denying summary judgment based on qualified immunity, however,
may be final and appealable depending on the issue appealed. Johnson v. Jones, 515
U.S. 304, 310-12, 115 S.Ct. 2151, 2154-55, 132 L.Ed.2d 238 (1995). If the issue
concerns whether a certain point of law is clearly established, or whether reasonable
officials would have known that their actions violated the law, then the order is
appealable. Mitchell v. Forsyth, 472 U.S. 511, 528-30, 105 S.Ct. 2806, 2816-17, 86
L.Ed.2d 411 (1985). If, on the other hand, the issue on appeal is whether the pretrial
record creates a genuine issue of material fact as to the occurrence of particular


                                            -5-
conduct, the order is not immediately appealable. Behrens v. Pelletier, 516 U.S. 299,
313, 116 S.Ct. 834, 842 (1996); Johnson, 515 U.S. at 316-20, 115 S.Ct. at 2158-59.
This aspect of the defendants’ appeals falls into the latter category. Therefore, this
Court lacks jurisdiction to consider the district court’s denial of their summary
judgment motion insofar as it is based upon purely factual questions of the use of force
and entry into the home by officers Wright and LaShomb respectively.

       Accordingly, we dismiss for lack of jurisdiction that part of the appeal assigning
error to the district court’s failure to distinguish the plaintiff’s claims against the
defendants and grant summary judgment thereupon. We affirm in all other respects.

A true copy.

      ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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