Date: 02-18-2018

Case Style:

Case Number: 17-1058

Judge: Arnold

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Eastern District of Missouri (St. Louis County)

Plaintiff's Attorney: Hugh Eastwood and Bevis Schock

Defendant's Attorney: Thomas R. McDonnell, Erin K. McGowan, Rory Patrick O'Sullivan

Description: One morning, a SWAT team raided a St. Louis house in which the plaintiffs
lived to execute a search warrant. According to the warrant affidavit, a detective
suspected that the house contained heroin, illegal firearms, and drug-trafficking
paraphernalia. The team knocked on the door, yelled "police," and quickly began
striking the door with a battering ram. The team also tossed a "flash bang device"
through a window and into the house, and after gaining entry, the team handcuffed
the residents who were present and brought them into a front room. The search turned
up marijuana, some drug paraphernalia, and three firearms, which the plaintiffs'
attorney characterized as some old firearms and some personal-use marijuana.
The detective then called for a building inspector to inspect the house under a
city program called "Project 87." See Saint Louis, Mo., Code of Ordinances ch.
25.32.020, § 104.6. Under that program, police notify a building inspector of
properties that constitute a "nuisance," which is defined as a code violation that "if
not promptly corrected will constitute a fire hazard or a serious threat to the life,
health or safety of the occupants of the building, structure, or portion thereof in which
the violations occur." If the owner or occupant of the building refuses to permit a
building inspection, the building inspector must immediately condemn the building
and issue an order to vacate, and if the owners or occupants refuse to leave, the police
must immediately remove them. The detective testified that it was police-department
policy to request a Project 87 inspection routinely after a search warrant was
executed. He did not identify any potential "nuisance" before he requested a Project
87 inspection in this case.

Building inspector Hershell Wallace arrived after receiving the inspection
referral. He testified that he did not notice any potential building-code violations
when he arrived except for the window that the police themselves had just broken. He
approached one of the residents, 29-year-old Victor Millbrooks, and asked him to
sign a consent-to-search form. At this point the parties' accounts begin to diverge, and
since we are reviewing an order denying Wallace's motion for summary judgment, we

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construe the facts in a light most favorable to the house's residents. See Aulick v.
Skybridge Ams., Inc., 860 F.3d 613, 620 (8th Cir. 2017). According to Millbrooks,
he was handcuffed for no more than ninety minutes while the SWAT team searched
the house, and the police uncuffed him only to sign the consent-to-search form and
to use the restroom. Millbrooks testified that Wallace "demanded" that Millbrooks
sign the consent-to-search form by saying that "[b]asically if you don't sign this, I
guess the house . . . forecloses or something was going to happen with the house. We
would get put out, something like that," so "it wasn't like I ha[d] an option." He also
testified that no one directed any threats toward him. Millbrooks then signed the form
and Wallace conducted the inspection, which turned up only minor violations.
When the residents of the house sued Wallace under 42 U.S.C. § 1983,
claiming that he unreasonably searched the house in violation of the Fourth
Amendment, Wallace moved for summary judgment on the ground that qualified
immunity protected him from suit. After the district court denied the motion, Wallace
filed this interlocutory appeal. Because we conclude that Wallace did not violate
clearly established law, we reverse and remand.

We first consider our jurisdiction to review this interlocutory appeal. The
plaintiffs have moved to dismiss the appeal because, they argue, Wallace's request for
qualified immunity was based on evidence insufficiency, or at least the district court
viewed it that way when it denied the motion. It is true that, though "[t]he pretrial
denial of qualified immunity is an appealable final order to the extent it turns on an
issue of law," Jackson v. Gutzmer, 866 F.3d 969, 975 (8th Cir. 2017), we do not have
jurisdiction to the extent that the denial turns on genuine issues of material fact. New
v. Denver, 787 F.3d 895, 899 (8th Cir. 2015). The district court did indeed mention
that "disputes of fact remain regarding whether Victor voluntarily consented to the
inspection," and we have said that when the appeal from the denial of qualified
immunity turns on whether the plaintiff consented to a search, which is a factually

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intensive inquiry, we lack jurisdiction. See Pace v. City of Des Moines, 201 F.3d
1050, 1053 (8th Cir. 2000).

We conclude nonetheless that we have jurisdiction. Wallace's briefs and oral
argument make clear that he is challenging whether he violated clearly established
law when he inspected the plaintiffs' house after receiving Millbrooks's signature on
a consent-to-search form. Whether certain actions violate clearly established law is
the archetypal question of law that is reviewable on interlocutory appeal. See Johnson
v. Jones, 515 U.S. 304, 318 (1995). We have said that the typical "appealable issue
is whether the federal right allegedly infringed was 'clearly established.'" See White
v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008). This is precisely what Wallace asks
us to review. The way in which the district court resolved the motion does not
necessarily govern whether we have jurisdiction. See New, 787 F.3d at 899–901.
Where the appellant does not challenge that factual disputes exist but rather whether,
even if the facts are construed in a light most favorable to the appellees, he violated
a clearly established right, we have jurisdiction over the interlocutory appeal. We
therefore turn to a consideration of the merits.

An individual defendant is entitled to qualified immunity if his conduct does
not violate clearly established constitutional rights of which a reasonable person
would have known. White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam). To be
clearly established, preexisting law must make the unlawfulness of the officials'
conduct apparent so that they have "fair and clear warning" they are violating the
constitution; qualified immunity therefore protects "all but the plainly incompetent
or those who knowingly violate the law." Id. at 551–52. Because qualified immunity
protects officials who make bad guesses in gray areas, Littrell v. Franklin, 388 F.3d
578, 582 (8th Cir. 2004), it gives them breathing room to make reasonable but
mistaken judgments. Blazek v. City of Iowa City, 761 F.3d 920, 922 (8th Cir. 2014).
The plaintiffs have the burden of showing that the law was clearly established. Hess
v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013).

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The district court denied Wallace qualified immunity because, if the jury
believed the plaintiffs' version of the facts, then the evidence "could show that the
consent was not voluntary." True, but that is not the correct inquiry. The correct
inquiry is whether, even if we construe the facts in a light most favorable to the
plaintiffs, a reasonable official in Wallace's position would have known that he was
violating the constitution when he searched the plaintiffs' house after receiving signed
consent to do so in the particular circumstances. We believe that Wallace, at worst,
made a bad guess in a gray area of the law—but the law gave him the breathing room
to make such a guess.

First, determining whether consent is voluntary requires a highly particular
look at all the relevant circumstances. See United States v. Comstock, 531 F.3d 667,
676 (8th Cir. 2008). In Comstock we identified no fewer than eleven non-exclusive
considerations that can bear on whether consent was voluntary. See id. at 676–77.
Since questions of consent necessarily turn on the particular facts of a case, it may be
hard to show that prior decisions should have put Wallace on notice that his search
under the circumstances was unconstitutional or that every reasonable official in his
position would have understood that he was violating a constitutional right. See
Pauly, 137 S. Ct. at 552. We do not mean that officials are always entitled to qualified
immunity when dealing with questions of consent; it is easy to imagine facts that
would alert a reasonable person that consent was not voluntarily given. We mean only
to emphasize that officials should be given some leeway when acting in legally murky
environments.

We believe that both the plaintiffs and the district court defined the right in
question here too generally. The plaintiffs focus on the presumptive unreasonableness
of searching a house (whether for evidence of a crime or for building code violations)
without a warrant. The district court began its analysis with the observation that a
government official's warrantless entry into a house does not violate the Fourth
Amendment when one voluntarily consents to the entry, only to note then that consent

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may not have been voluntarily given here. But "clearly established law should not be
defined at a high level of generality" and must be particularized to the facts of the
case so that the unlawfulness of an official's actions are apparent. Id. Context is
critical in determining qualified immunity in Fourth Amendment cases. See Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam). The first principles that the district
court and the plaintiffs emphasized can only go so far. Nowhere do they identify any
case applying these first principles in a context sufficiently similar to the situation in
which Wallace found himself when he searched the plaintiffs' house. Though the
plaintiffs need not provide a case directly on point, some existing precedent must
place the question beyond debate, or the conduct must be so obviously
unconstitutional that no precedent is needed. See Pauly, 137 S. Ct. at 551–52. The
plaintiffs have failed to carry their burden on this point.

Wallace alerts us to a case that holds that a building inspector in circumstances
very similar to the present ones did not violate the constitution at all. See
Memorandum, Appel v. City of St. Louis, No. 4:05-cv-772 (E.D. Mo. Aug. 15, 2007),
ECF No. 168. In that case, a St. Louis building inspector and several police officers
arrived at a residence to perform a Project 87 inspection. The building inspector
requested the occupant's consent to search, and the occupant asked about his right to
refuse. The building inspector told the occupant that failure to consent would result
in immediate condemnation and would force the occupant to vacate the residence, so
the occupant signed a consent-to-search form. Id. at 6. In granting the building
inspector qualified immunity, the court considered whether the occupant voluntarily
consented to the search, noting that whether consent was voluntary was a factually
intensive question. The court explained that the occupant was an adult with full
capacity who inquired about his rights and who was not detained or questioned for
very long, threatened with physical harm or with punishment, or placed under arrest.

The court noted that, though a large police presence at a housing inspection was
unusual, it was not sufficiently intimidating to deprive an adult of the ability to give
informed, knowing, and voluntary consent. That court also pointed out that, though

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the threat to condemn the house was disconcerting, it was not an empty threat because
the building inspector had authority under the ordinance to condemn the house
temporarily, and providing a citizen with accurate information about his rights does
not invalidate his consent. The court ultimately concluded that the building inspector
did not violate the Fourth Amendment. Id. at 26–27.

The district court distinguished Appel on the ground that there was
particularized knowledge of a building code violation so there was probable cause for
the search. But Wallace does not contend that he had probable cause to search the
plaintiffs' house; he contends instead that he had consent from one of the house's
occupants. Wallace did not need probable cause if he received voluntary consent. See
United States v. Wolff, 830 F.3d 755, 758 (8th Cir. 2016). In short, this is a consent
case, and probable cause does not seem all that relevant to the issue before us.

We acknowledge that it appears that the occupant in Appel was evidently not
in handcuffs when he gave his consent to search, but we have held that even a person
who is arrested and handcuffed for two hours can voluntarily consent to a search, see,
e.g., Comstock, 531 F.3d at 677–78; so the handcuffs are not enough to deny Wallace
the protection of Appel's shade and render Millbrooks's consent obviously
involuntary. The plaintiffs themselves acknowledge that the fact that Millbrooks was
handcuffed is not "the hinge on which the immunity analysis turns." But even if Appel
is distinguishable on this ground or others and can somehow be made to say that the
consent given in this case was involuntary, we still think that the plaintiffs have failed
to demonstrate how every reasonable official in Wallace's shoes would have believed
that he was violating the plaintiffs' rights. A single case, which is not even a binding
precedent in the district in which it was decided, seems hardly enough to count as one
that establishes a clear legal principle. One swallow does not a summer make.

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For these reasons, the plaintiffs have not carried their burden to show that the
unconstitutional nature of Wallace's conduct was clearly established. We therefore
reverse and remand for further proceedings.

KELLY, Circuit Judge, concurring.

I agree that Hershell Wallace is entitled to qualified immunity. I write to note
that St. Louis’s municipal liability is not before us on this appeal. The plaintiffs made
three claims relating to Wallace’s Project 87 inspection. One of those claims sought
to hold Wallace personally liable—this appeal disposes of that claim. The remaining
two claims seek to hold the City of St. Louis liable for an unconstitutional policy
under Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658 (1978). We express
no opinion on the district court’s denial of summary judgment on these Monell
claims. And, because we grant Wallace qualified immunity based on a lack of
clearly-established law, our ruling is not determinative of whether his employer is
liable for effectuating an unconstitutional policy. See Owen v. City of Independence,
Mo., 445 U.S. 622, 657–58 (1980). Thus, our opinion does not foreclose the
plaintiffs from pursuing their Monell claims based on Project 87 searches.

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Outcome: For these reasons, the plaintiffs have not carried their burden to show that the
unconstitutional nature of Wallace's conduct was clearly established. We therefore
reverse and remand for further proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: