In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1021

Eugene Sparing, 

Plaintiff-Appellant,

v.

Village of Olympia Fields

and Officer James Keith,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 97 C 5479--Charles R. Norgle, Sr., Judge. 

Argued September 18, 2000--Decided September 19, 2001

 Before Easterbrook, Ripple, and Williams,

Circuit Judges.

 Williams, Circuit Judge. Eugene Sparing

sued Officer James Keith for alleged

Fourth Amendment violations, stemming

from his arrest in his home. He also sued

Keith and the Village of Olympia Fields

under the Illinois tort of malicious

prosecution. The Village and Keith moved

for summary judgment, with Keith

asserting a defense of qualified

immunity. Relying on our decision in

United States v. Berkowitz, 927 F.2d 1376

(7th Cir. 1991), the district court

rejected Sparing’s Fourth Amendment

warrant claim. In addition, the district

court found probable cause for Sparing’s

arrest on a closely related offense and

rejected Sparing’s Fourth Amendment

probable cause and state law malicious

prosecution claims. Sparing appeals, and

we affirm.

I. BACKGROUND

A. The Facts

 Sparing’s arrest arose out of an alleged

scheme organized by a friend named David

Smith. Smith filed a criminal report with

the Olympia Fields Police Department on

July 23, 1996. In his complaint, Smith

alleged that he fired Tom Sanfratello on
May 31, 1996, and that Sanfratello later

stole files from the office and forged

two checks made out to himself. Smith

also stated that on the morning of July

9, 1996, Sparing saw Sanfratello in the

office. According to Smith, Sparing

knocked on the window to get

Sanfratello’s attention, but Sanfratello

did not respond.

 In mid-August, Officer Keith called

Sparing to confirm his part of Smith’s

story. Sparing did. Keith next

interviewed Sanfratello, who disputed the

story in several respects but admitted to

signing the checks because he was a

signatory on the account and was owed

money by Smith. He also admitted to

taking files, but claimed to have

returned them to Smith. Sanfratello also

told Keith that he previously had a

conversation with Sparing’s secretary,

Linda Parker, who told him that she had a

facsimile sent by Smith to Sparing and

that she believed that they were "up to

no good." Sanfratello provided a copy of

that fax to Keith; it read:

Gene

 July 9, 1996 at 2:45 am observed

Tom at office copying files from

computer and photocopying. You

knocked on windows and Tom

ignored you. You left and went

home.

 Thanks

 David

The next day, Keith had a telephone

conversation with Parker. According to

Keith, Parker said that after receiving

the fax from Smith, she made a copy and

gave the original to Sparing, who

replied, "Dave wants me to perjure

myself."

 The following day, Parker telephoned

Keith, recounting to him an encounter she

recently had with Sparing. She said that

Sparing had contacted her to have lunch

and that when he picked her up he asked

with whom she had been talking that week.

Parker initially feigned ignorance, but

Sparing persisted. He drove her by the

Olympia Fields Police Department to

"refresh [her] memory," and again asked

with whom she had been talking, this time

informing her that a friend of
Sanfratello had already put him in the

know. She then admitted to talking with

the police about the fax. Sparing,

according to Parker, replied, "I thought

you were my friend. How could you do this

to me? Don’t you know that this could

lead to criminal charges against me?"

Parker told Keith that Sparing then took

her back home, told her to get out of the

car and that she was fired. He also told

Parker that he was evicting her from the

house she was renting from him and taking

back his van on which she was making

payments. Later that day, Keith spoke

with Parker again, and she told him the

same story. 

 After the meeting with Parker, Keith

went to Sparing’s house and knocked on

the door. Sparing answered the door, and

Keith asked that he identify himself,

which he did. At that moment, Sparing was

still standing inside his home behind his

closed screen door, and Keith was

standing outside. Keith then advised

Sparing that he was under arrest./1 To

which, Sparing inquired whether he had a

warrant. Keith stated that he did not,

but rather that he had probable cause.

Sparing asked whether he could place

something down, then turned, and walked

away from the screen door further into

his home. Keith entered the residence,

taking several steps inside. Sparing came

back to Keith, and they both left the

house.

B. District Court Proceeding

 Sparing filed a lawsuit against the

Village, Keith, and Officer William

Bendar, alleging violations of federal

civil rights law as well as Illinois

state law./2 Sparing alleged in his

complaint that his arrest was in

violation of the Fourth Amendment, and he

sought damages under 42 U.S.C. sec. 1983.

Specifically, Sparing complained that

Keith arrested him in his home without a

warrant and without probable cause. He

also alleged that the Village and Keith

maliciously prosecuted him in violation

of Illinois tort law.

 The Village and Keith moved for summary

judgment. Keith asserted an affirmative

defense of qualified immunity. The

district court held that Sparing had

failed to demonstrate a constitutional

violation and that Keith was entitled to
qualified immunity. The district court

concluded that the arrest did not violate

the Fourth Amendment because Sparing

acquiesced to Keith’s entry to complete

an arrest announced outside his home, and

because probable cause existed for an

offense closely related to the one for

which Sparing was arrested. Having found

probable cause for the arrest, the

district court also concluded that

Sparing could not meet the elements of

malicious prosecution. The district court

then entered judgment in favor of the

Village and Keith. This appeal followed.

II. ANALYSIS

A. Fourth Amendment and Section 1983

 Sparing alleges two Fourth Amendment

violations pursuant to section 1983

against Officer Keith. He claims that

Keith unlawfully entered his home without

a warrant to effectuate an arrest and

unlawfully arrested him without probable

cause. Both claims are subject to a

defense of qualified immunity. We begin

our analysis with the standard for

qualified immunity, and then we proceed

to apply that standard to each claim.

 1. Qualified Immunity.

 Public officials performing

discretionary functions are generally

entitled to qualified immunity and are

"shielded from liability for civil

damages insofar as their conduct does not

violate clearly established statutory or

constitutional rights of which a

reasonable person would have known."

Wilson v. Layne, 526 U.S. 603, 609 (1999)

(internal quotation marks omitted)

(quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Qualified immunity

provides "ample protection to all but the

plainly incompetent or those who

knowingly violate the law." Malley v.

Briggs, 475 U.S. 335, 341 (1986). They

are accorded this ample protection not as

a license to violate constitutional

rights without recourse nor as an excuse

to turn a blind eye to the requirements

of the law, but to preserve the vigilance

of those individuals vested with the

obligation to protect the public interest

in the face of ambiguity. See Hunter v.

Bryant, 502 U.S. 224, 228-29 (1991); see

also Malinowski v. DeLuca, 177 F.3d 623,
626-27 (7th Cir. 1999) (articulating

policy reasons behind the immunity). 

 When presented with a defense of

qualified immunity, courts must (1)

determine whether the plaintiff has

alleged the deprivation of an actual

constitutional right and (2) if so,

determine whether that right was clearly

established at the time of the alleged

violation. Saucier v. Katz, 121 S. Ct.

2151, 2156 (2001); Layne, 526 U.S. at

609; Spiegel v. Cortese, 196 F.3d 717,

723 (7th Cir. 1999). Although qualified

immunity is an affirmative defense, the

burden of defeating an assertion of

qualified immunity rests with the

plaintiff. Spiegel, 196 F.3d at 723;

Clash v. Beatty, 77 F.3d 1045, 1047-48

(7th Cir. 1996).

 In this case, the district court, in

granting summary judgment, found that

Sparing could not establish a deprivation

of an actual constitutional right and

therefore did not fully address the

second part of the standard for qualified

immunity. We review the district court’s

judgment on the basis of qualified

immunity de novo. Jones v. Watson, 106

F.3d 774, 777 (7th Cir. 1997). In

determining whether a genuine issue of

material fact exists, we construe all

facts in the light most favorable to the

non-moving party, and draw all reasonable

and justifiable inferences in favor of

that party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).

2. Warrantless arrest in the home--the

significance of Payton, Watson, Santana,

and Berkowitz.

 Sparing argues that Keith entered his

home without a warrant or his consent to

effectuate an arrest, which constituted

an unreasonable search in violation of

the Fourth Amendment and in particular

the Supreme Court’s holding in Payton v.

New York, 445 U.S. 573 (1980). Keith

responds that Sparing acquiesced to his

slight entry to complete the arrest after

he announced it outside Sparing’s home,

which is consistent with Payton and

indistinguishable from our holding in

United States v. Berkowitz, 927 F.2d 1376

(7th Cir. 1991). For the reasons stated

below, we believe that the entry into

Sparing’s home without a warrant to

effectuate or complete the arrest
(although with probable cause) was

unreasonable and therefore a violation of

the Fourth Amendment.

 Two Fourth Amendment principles set the

backdrop against which we analyze this

case. First, police officers may

constitutionally arrest an individual in

a public place (e.g., outside) without a

warrant, if they have probable cause.

United States v. Watson, 423 U.S. 411,

417-24 (1976). Second, police officers

may not constitutionally enter a home

without a warrant to effectuate an

arrest, absent consent or exigent

circumstances, even if they have probable

cause. Payton, 445 U.S. at 585-90. What

distinguishes these two cases is that the

latter involves an entry (i.e., a search)

into the home, a place where individuals

enjoy an especially heightened Fourth

Amendment protection. See id. at 585

("[P]hysical entry of the home is the

chief evil against which the wording of

the Fourth Amendment is directed."

(internal quotation marks omitted)

(quoting United States v. United States

District Court, 407 U.S. 297, 313

(1972)). The former does not. A search of

the home without a warrant is a wellsettled violation of the Fourth

Amendment, and the Supreme Court in

Payton simply made clear that it is no

less so when the search is conducted in

order to seize (i.e., by an arrest) a

person, rather than property. See id. at

585-88.

 At first blush, then, the lines appear

clear. Intrusion into the home without a

warrant "by even a fraction of an inch,"

is too much. Kyllo v. United States, 121

S. Ct. 2038, 2045 (2001) (internal

quotation marks omitted) (quoting Silver

man v. United States, 365 U.S. 505, 512

(1961)). The lines are not so clear,

however, because exactly where outside

ends and where the home begins is not a

point immediately obvious. Splitting

fractions of an inch can be a very

treacherous endeavor, producing arbitrary

results. But we need not pull out our

rulers and begin to measure. Under the

Fourth Amendment, the point must be

identified by inquiry into reasonable

expectations of privacy. United States v.

Santana, 427 U.S. 38, 42 (1976); Katz v.

United States, 389 U.S. 347 (1967).

 The Supreme Court has already considered
the question of dividing outside from

inside when the home is involved,

although not completely resolving the

question, in United States v. Santana,

supra. In Santana, the Court held that an

individual voluntarily standing in the

threshold of her home (i.e., in the

middle of an open doorway) is outside

rather than inside the home for purposes

of the Fourth Amendment. Santana, 427

U.S. at 42. The Court reasoned that an

individual voluntarily standing in an

open doorway has knowingly exposed

herself to "public view, speech, hearing,

and touch" just as if she were standing

outside, in a public place. Id. In those

places, and thus in an open doorway,

under those circumstances, the Watson

rule, rather than the Payton rule,

applies. Id.; see also Katz, 389 U.S. at

351 ("What a person knowingly exposes to

the public, even in his own home or

office, is not a subject of Fourth Amend

ment protection."). 

 But what if the individual is not

voluntarily standing in an open doorway,

but answers a knock at the door, standing

by a "fraction of an inch" behind an open

doorway? We still apply Santana-type

"public view, speech, hearing, and touch"

analysis to aid in the determination of

whether a reasonable expectation of

privacy exists. To answer that Payton

established "a firm line at the entrance

to the house," Payton, 445 U.S. at 590,

is to ignore an unmistakable circularity-

-the question is where is the "entrance

to the house," which in these

circumstances must be answered by

consideration of reasonable expectations

of privacy.

 We addressed precisely this question in

United States v. Berkowitz, supra,

acknowledging that when an individual

voluntarily stands behind an open

doorway--fractions of an inch "inside the

home"--ordinarily, for purposes of the

Fourth Amendment, she stands outside, in

a public place. See Berkowitz, 927 F.2d

at 1386-87; cf. Santana, 427 U.S. at 42.

But, we said, the inquiry does not end

there. We also recognized that a person

does not surrender reasonable

expectations of privacy in the home by

simply answering a knock at the door, and

we therefore declined to apply Santana in

toto./3 Berkowitz, 927 F.2d at 1387.

Instead, we held that an individual
retains the right to be free from

physical intrusion into the home by

police officers without a warrant seeking

to effectuate an arrest, but the right

could be waived in that circumstance by

acquiescence (rather than consent) to a

slight entry. We stated our holding as

follows: if the police go to an

individual’s home without a warrant,

knock on the door, announce from outside

the home that the individual is under

arrest when she opens the door to answer,

and the individual acquiesces to a slight

entry to complete the arrest,/4 the

entry is reasonable under the Fourth

Amendment and consistent with Payton. Id.

 Berkowitz, however, did not overturn

longstanding Fourth Amendment precedent

that absent exigent circumstances, police

without a warrant must obtain an

individual’s valid and voluntary consent

before entering the home to effectuate or

complete an arrest. See, e.g., Steagald

v. United States, 451 U.S. 204, 214 n.7

(1981); Reardon v. Wroan, 811 F.2d 1025,

1027-28 (7th Cir. 1987). As we have said,

Berkowitz only endorsed as reasonable

under the Fourth Amendment, a slight

entry into the home to complete an arrest

announced outside the home when the

individual acquiesced to the entry while

standing fractions of an inch behind the

threshold of her home with the door open.

See Berkowitz, 927 F.2d at 1386-87.

 This case does not fit within the thin

middle ground established by Berkowitz,

but is a case where Payton applies. What

puts this case beyond Berkowitz--as well

as Santana and Watson--and is most

critical here, is that Sparing stood

inside his home, behind his closed screen

door. He was neither in a public place,

e.g., outside (Watson),/5 voluntarily in

an open doorway, also a public place

(Santana), or answering a knock at the

door and standing fractions of an inch

behind an open doorway (Berkowitz).

Because we are guided not by the "common

law of property," Santana, 427 U.S. at

42, but by the Fourth Amendment privacy

interest as identified in Katz, this

difference is significant. Sparing was

not exposed to "public view, speech,

hearing, and touch" as if he were

standing outside, in a public place

(voluntarily or otherwise). As a

consequence, we apply Payton--Sparing did

not surrender any reasonable expectations
of privacy in his home. Without a

warrant, this arrest could only be

completed if Sparing opened his screen

door, and stepped outside of his home or

acquiesced to a slight entry to complete

the arrest. For Keith to enter the home

without a warrant, as he did in this

case, he first needed Sparing’s consent.

 We need not question the validity and

voluntariness of consent in this case,

because no evidence of consent is

present. Because Sparing did not consent

to Keith’s entry into his home, Keith’s

entry without a warrant to effectuate or

complete the arrest in Sparing’s home was

unreasonable and a violation of the

Fourth Amendment. We pause here,

momentarily, to reiterate what seems to

have been lost from our discussion in

Berkowitz: there was no reason in this

case not to get a warrant and every

reason to obtain one. See Berkowitz, 927

F.2d at 1388 ("Obtaining a warrant in the

first place would have prevented these

potential problems, to say nothing of the

time it would have saved at trial and on

appeal litigating the legality of [the]

arrest."). When time permits, officers

who elect not to obtain a warrant

unnecessarily risk the type of

constitutional violation involved in this

case. 

 Although Sparing has demonstrated a

constitutional violation, he cannot show

that the violation was clearly

established under the second part of the

standard for qualified immunity. Indeed,

we are in agreement with the First

Circuit in concluding that the law

surrounding Fourth Amendment "doorway

arrest" questions, particularly on the

facts of this case, was not sufficiently

settled or defined at the time of the

arrest to defeat qualified immunity in

this case. See generally Joyce v. Town of

Tewksbury, 112 F.3d 19, 22 (1st Cir.

1997) (en banc). Thus, Keith was

appropriately entitled to summary

judgment for Sparing’s Fourth Amendment

warrant claim under section 1983./6

 3. Arrest without probable cause.

 Sparing next argues that the district

court employed a "fanciful view of

Illinois law and a warped reading of the

record" in concluding that his

participation in Smith’s scheme could
have provided Keith with probable cause

to believe that he had committed the

offense of disorderly conduct. Therefore,

he argues, the district court erred in

granting summary judgment to Keith on his

Fourth Amendment probable cause claim./7

Sparing contends that the section of the

Illinois disorderly conduct statute under

which the district court found probable

cause for the arrest requires a written

report and that the report must falsely

identify an offense, not simply acts that

may be part of an offense.

 The disorderly conduct statute provides:

 (a) A person commits disorderly conduct

when he knowingly:

. . . . 

 (4) Transmits or causes to be

transmitted in any manner to any peace

officer, public officer or public

employee a report to the effect that an

offense will be committed, is being

committed, or has been committed, knowing

at the time of such transmission that

there is no reasonable ground for

believing that such an offense will be

committed, is being committed, or has

been committed[.]

720 Ill. Comp. Stat. 5/26-1(a)(4). Illinois

case law, in particular People v.

Stevens, 352 N.E.2d 352 (Ill. App. Ct.

1976), establishes that either written or

oral reports may satisfy the element of a

"report" in the statute. Id. at 354. 

 Sparing attempts to distinguish Stevens,

while at the same time advancing his

second argument, by stating that the

defendant in Stevens reported a

"robbery." He argues that he only relayed

information to Keith about what he had

seen and never stated that an "offense"

had been committed. This is a fanciful

interpretation of both Stevens and the

disorderly conduct statute. The plain

language of the statute is not limited to

false reports of an offense, as Sparing

argues, but covers false reports "to the

effect that an offense . . . has been

committed." 720 Ill. Comp. Stat. 5/26-

1(a)(4). When Sparing told Keith that he

had seen Sanfratello in the office

copying files from a computer and

photocopying, it was to corroborate

Smith’s accusation of theft and trespass.

Clearly, the report had the effect of
falsely conveying to a police officer

that an offense had been committed.

 Thus, Keith was also appropriately

entitled to summary judgment for

Sparing’s Fourth Amendment probable cause

claim under section 1983.

B. Malicious Prosecution

 Sparing argues that for the reasons

articulated in his probable cause

discussion addressed above, the district

court wrongly granted summary judgment to

the Village and Keith on his state law

malicious prosecution claim. Because we

have disposed of his arguments on

probable cause, Sparing is left emptyhanded. However, we will address this

issue because we uphold summary judgment

on the second ground offered by the

district court. We review this claim,

like the others, de novo.

 We are not convinced, as was the

district court, that because probable

cause existed for the offense of

disorderly conduct, Sparing could not

maintain a state law malicious

prosecution cause of action for resisting

or obstructing a police officer--the

offense actually charged. We are aware of

no Illinois case that adopts the closely

related offense rule, which we apply in

qualified immunity cases, in state law

malicious prosecution tort cases.

Therefore, we do not rest our opinion on

this ground. 

 However, Illinois law does require that

the criminal proceeding upon which a

malicious prosecution action is

predicated was terminated in a manner

indicative of the innocence of the

accused. Joiner v. Benton Cmty. Bank, 411

N.E.2d 229, 232 (Ill. 1980). The record

is silent on this issue, except for

Keith’s assertion in his deposition that

the case was dismissed for lack of a

warrant (hardly indicative of Sparing’s

innocence). At summary judgment, Sparing

had an obligation to come forward with

evidence to support his claim and could

not merely rest on the allegations in his

complaint. See Fed. R. Civ. P. 56(e). He

failed to do so. Therefore the Village

and Keith were appropriately entitled to

summary judgment for Sparing’s state law

malicious prosecution claim./8
III. CONCLUSION

 For the foregoing reasons, the judgment

of the district court is Affirmed.

FOOTNOTES

/1 In his deposition, Keith indicated that he arrested Sparing for obstructing a police officer,

although he also had in mind the offense of

disorderly conduct.

/2 Sparing voluntarily dismissed his claim against

Officer Bendar.

/3 Other courts have reached similar conclusions.

See United States v. McCraw, 920 F.2d 224, 228-30

(4th Cir. 1990); Duncan v. Storie, 869 F.2d 1100,

1103 (8th Cir. 1989); United States v. Herrold,

772 F. Supp. 1483, 1489-90 (M.D. Pa. 1991). But

see United States v. Carrion, 809 F.2d 1120,

1127-28 (5th Cir. 1987); United States v. Whitten, 706 F.2d 1000, 1015 (9th Cir. 1983).

/4 Berkowitz actually states this proposition using

the words "and the person acquiesces to the

arrest." 927 F.2d at 1386 (emphasis added). The

issue, however, is whether the entry is consistent with the Fourth Amendment, not the arrest

(which is lawful because supported by probable

cause). Despite the language used in that particular sentence, we believe the holding in Berkowitz identified the entry as the constitutional

violation, not the arrest, and therefore we use

the former, not the latter.

/5 Watson actually was arrested in a restaurant.

/6 Sparing presents an additional Fourth Amendment

argument based on the Illinois resisting arrest

statute: Sparing argues that he was required by

Illinois law to acquiesce to Keith’s entry to

complete the arrest, and if he resisted by not

acquiescing to the entry, he was subject to

additional charges for resisting arrest. He

argues that if he acquiesced, the Illinois statute compelled his acquiescence and as a consequence that acquiescence is constitutionally

defective. Having decided that Berkowitz does not

apply, we need not consider this issue.

/7 The district court did not find probable cause

for the charge of obstructing a police

officer--the offense for which Sparing was arrested and charged--because Sparing’s conduct

could not be considered physical obstruction,

which is a necessary element of the offense. See

People v. Hilgenberg, 585 N.E.2d 180, 183 (Ill.

App. Ct. 1991). But the district court continued

to consider whether probable cause existed for
disorderly conduct because "probable cause need

not have existed for the charge for which the

plaintiff was arrested, so long as probable cause

existed for arrest on a closely related charge."

Biddle v. Martin, 992 F.2d 673, 676 (7th Cir.

1993).

/8 We do not reach the issues of damages raised on

this appeal, because we affirm the district

court’s grant of summary judgment in favor of the

Village and Keith on all counts alleged in the

complaint.