Estate of Leon Walker, Jr.; Wanda Jean Millbrook; Correll Taylor Millbrook; Victor Wayne Millbrooks, Jr. Plaintiffs-Appellees
Building Inspector Hershell Wallace, in his individual capacity Defendant-Appellant Detective Ronald E. Vaughn, a St. Louis Metropolitan Police Department police officer in his individual capacity; City of St. Louis, Missouri Defendants
Submitted: December 13, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.
ARNOLD, Circuit Judge.
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.
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.
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 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.
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.
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 intensive inquiry, we lack
jurisdiction. See Pace v. City of Des Moines, 201
F.3d 1050, 1053 (8th Cir. 2000).
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
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).
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.
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.
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 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'