# United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-1916

____________ David Rogers; Janice M. Rogers, * * Appellants, * * v. * * Appeal from the United States Bobby Carter, individually and * District Court for the in his Official Capacity as a * Eastern District of Arkansas Forrest City Police Officer; * City of Forrest City, Arkansas, * * Appellees. *

____________ Submitted: April 18, 1997 Filed: January 20, 1998

____________ Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

David Ro gers and Janice Rogers (together “appellants”), brother and sister, appeal from a fina l judgment entered in the United States District Court for the Eastern District of Arkansas dismissing their claims pursuant to 42 U.S. C. §§ 1983, 1985, and 1986, as well as pendent state law claims, against Bobby Carter, the Forrest City Police Department, and the City of Forrest City, Arkansas (the City) (collectively

## Appellants have not argued, in conformance with Fed. R. App. P. 28(a)(6), that 1 

## the district court erred in dismissing: Janice Rogers’ Fourth Amendme nt unlawful arrest claim under 42 U.S.C. § 1983 ; either of appellants’ Fourth Ame ndment excessive force claims under § 1983; or either of appellants’ state law false arre st claims. Accordingly, those issues are deemed to be waived on appeal.
-2- “appellees”). Rogers v. Carter , No. H-C-95- 027 (E.D.Ark. Mar. 25, 1996) (judgment). For reversal, appellants argue tha t the district court erred in: (1) dismissing appellants’ claims under 42 U.S.C. §§ 1985 and 1986, and their First, Fifth, Eighth, and Fo urteenth Amendment claims under 42 U.S.C. § 1983 for failure to state a claim; (2) dismissing the Forrest City Police Department as a party defendant; (3) granting summary judgment fo r Bobby Carter and the City on the merits of David Rogers’ Fourth Amendment unlawful arrest claim unde r § 1983; and (4) hold ing, in the alternative, that Bobby Carter and the City are entitled to qualified immunity on David Rogers’ Fourth Amendment unlawful arrest claim. Appellants also maintain that the district court abused its discret ion in dismissing their pendent state law claims. For the reasons discussed below, we affirm in part, 1 reverse in part, and remand the case to the district court for further proceedings consistent with this opinion.

Jurisdiction

Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331, 1343(a), 1367(a)

. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The noti ce of appeal was timely filed under Fed. R. App. P. 4(a).
Background

The fol lowing statement of facts is based upon the district court’s order of March 25, 1996, an d appellees’ statement of undisputed material facts submitted in support of their motion for summary judgment. See slip op. at 2-3, 5-6 & n.3 (Mar. 25, 1996) (setting forth background facts and adopting as uncontroverted the statement

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of undisputed material facts filed i n support of appellees’ motion for summary judgment); Appellees’ Appendix at 1-6 (statement of undisputed material facts).
On September 23, 1994, Janice Rogers was living in an apartment in an apartment complex in Forrest City, Arkansa s. Her brother, David Rogers, a sergeant in the United States Army, was visiting her. Janic e Rog ers and David Rogers are African-American. On the date in question, David Rogers and a friend were a t Jani ce Rogers’ apartment, and Janice Rogers was not at home. The apartment door was open and music wa s playing inside the apartment. Sarah Carter, the apartment complex manager, asked them to lower the volume of the music or close the apartment door. An altercation between Sarah Carter and David Rogers ensued, afte r which Sarah Carter called the police. Moments later, Sarah Carter's husband, Bobby Carter, arrived. Afte r talking with his wife, Bobby Carter approached David Rogers, who at that time was standing outside the door to J anice Rogers’ apartment. Bobby Carter , a lieutenant with the Forrest City Police Department , verball y identified himself as a police officer and began questioning David Rogers. Bobby Carter was dressed in plain clothes. David Rogers requested to see Bobby Carter's police identification. Bobby Carter did not produce a badge or any

other indicia of authority as a police officer, but again verbally stated that he was a police officer. DavidRogers refused to answer Bobby Carter’s questions and turned to go back into the apartment. Bobb y Carter grabbed David Rogers by the shirt, at which point Rogers “body-slammed” Carter to the ground, walked into the apartment, and locked the door. Bobby Carter got up from the gro und, pulled out his revolver, and kicked open the apart ment door. David Rogers surrendered upon seeing the firearm. Bobby Carter held the cocke d revolver to David Rogers’ head and ordered Rogers to exit the apart ment. As David Rogers exited the apartment, Bobby Carter pushed him to the ground, sat on his back, and pulled Rogers’ hands up behind his back. While Bobby Carter was on David Rogers’ back, still holding the gun to David Rogers’ head, Janice Rogers arrived on the scene. She observed Bobby Carter on her brother’s back, holding a gun to her brother’s head. She began yelling at Bobby Carter to get off of her brother and to get the gun away from

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him. Police officers arrived at the scene almost simultaneously with Janice Rogers and placed David Rogers and Janice Rogers under arrest. Appellants were each arrested on charges of disorderly conduct, and David Rogers was additionally charged with resisting arrest, fleeing, and battery.
On September 26, 199 4, a state circuit court judge found probable cause to arrest David Rogers on the offense of disorderly conduct and issued a warrant for his arrest. On October 3, 1994, David Rogers wa s convicted of disorderly conduct in municipal court. His conviction was later overturned in state circuit court.
Appellants filed the present action in federal distri ct court asserting federal claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, and pendent state law claims of false arrest, excessive force, assault, battery, libel , slander, negligence, and intentional inflict ion of emotional distress. By order dated August 22, 1995, the district
cou rt dismissed appellants’ claims pursuant to 42 U.S.C. §§ 1985 and 1986, dismissed all of their claim s pursuant to 42 U.S.C. § 1983 except their Fourth Amendment claims , dismissed all of their state law claim s except their false arrest claims, and dismissed t he Forrest City Police Department as a party defendant. By order dated March 25, 1996, the district court granted summary judgment for Bobby Carter and the City on the merits of appellants’ state law false arrest claims and on the merits of appellants’ remaining § 1983 claims which alleged unlawful arrest and excessive use of force un der the Fourth Amendment; in the alternative, the district court held that Bobby Carter and the City were entitled to qualified immunity on appellants’ Fourth Amendment claims

. This appeal followed.

Discussion
We begin with the district court’s summary judgment dismissal of David Rogers’ Fourth Amendment claim , brought pursuant to 42 U.S.C. § 1983, asserting that Bobby Carter unlawfully arrested him withou t probable cause. After

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dismissing mo st of appellants’ other claims and dismissing the Forrest City Police Department as a part y defendant, the district court held that there w ere no genuine issues of material fact and that Bobby Carter and the City were entitled to judgment as a matter of law on David Rogers’ Fourth Amendment unlawful arrest claim because Bobby Carter had arguable probable cause to arrest David Rogers for at least fleeing and disorderl y conduct. See slip op. at 6 & nn.4, 5 (Mar. 25, 1996).

We review the dist

rict court’s grant of summary judgment de novo , applying the same standards as the district court. Mayard v. Hopwood , 105 F.3d 1226, 1227 (8th Cir. 1997). We will affirm the district court’s decision if, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving p arty is entitled to judgment as a matter of law. Id. at 1227-28. We accept as true the no nmoving party’s account of the facts where there are material inconsistencies. See id. at 1228. In th e present case, however, the following material facts are not disputed. David Rogers was residing with his sister, Janice Rogers, at the time of the events in question. During the confrontation between David Rogers and Bobby Carter, Carter was in plain clothes and never showed a police badge to Rogers, despite Rogers’ specific request to see identification. David Rogers used physical force only after he was grabbed by Bobby Carter while h e (Rogers) was walking away. D avid Rogers threw Bobby Carter to the ground, then retreated into the apartment and locked the door. Thereafter, Bobby Carter drew his gun, kicked in the locked door, and arrested Davi d Rogers at gunpoint.
Appellees maintain that the district court properly granted summary judgment on the merits of David Rogers’ unlawful arrest claim because: (1) David Roge rs was convicted of disorderly conduct in municipal court, which is a complete defense to David Rogers’ claim of lack of probable cause to arrest, and (2) there wa s arguable p robable cause to arrest David Rogers for disorderly conduct, resisting arrest, battery, or fleeing. We disagree.

### -6- We fi rst reject appellees’ specious argument that the conviction of David Rogers in municipal court is a complete defen se to Rogers’ Fourth Amendment unlawful arrest claim. Appellees cite Malady v. Crunk , 902 F.2d 10, 11 (8th Cir. 1990), for the proposition that “where law enforcement officers have made an arrest, the resulting convic tion is a defense to a § 1983 action asserting that the arrest was made without probable cause.” David Rogers’ municipal court conviction was later overturned in state circuit court following a trial on th e merits. See Cit

y of Forrest City v. Rogers , No. CR-94-530, transcript at 126 (Cir. Ct. St. Francis County Mar. 7, 1995) (found in Appellants’ Appendix at 16 1). Malady v. Crunk does not apply in the present case where the i n itial “conviction” was subsequently overturned upon a finding of innocence following a trial on the merits in a court of competent jurisdiction.
We also disagree with

appellees’ argument that there was arguable probable cause for Bobby Carter to arrest David Rogers for disorderly conduct, resisting arrest, battery, or fleeing. As stated above, Bobby Carter, the husband of the apartment complex manager with whom David Rogers had just argued, appeared at David Roger’s doorstep dressed in plain clothes. He neither wore no r produced a badge or any other indicia of authority as a police officer, even after Rogers specifically asked tosee identification. Bobby Carter did nothing more than declare himself a police officer. Under these circumstances, David Rogers would have no reason to know that Bobby Carter was a police officer. David Rogers’ decision to retreat into the apartment was prudent and lawful. By contrast, Bobby Carter’s ini tiation of physical contact was unjustified. We reject Bobby Carter’s arguments that Dav id Rogers’ forceful, yet limited, response to Bobby Carter’s initial act of aggression could constitut e disorderly conduct, resisting arrest, or bat tery upon a law enforcement officer, or that Rogers’ subsequent retreat into the apartment

could constitute fleeing under Arkansas state law. Even if Bob by Carter did have probable cause to arrest David Rogers (which he did not), it still would have bee n erroneous for the district court to grant summary judgment in favor of Bobby Carter and the Cit y because Bobby Carter’s purported

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arrest of David Rogers was an unla wful warrantless home arrest. In Payton v. New York , 445 U.S. 573 (1980), the Sup reme Court held that probable cause is not an adequate basis to permit a warrantless arrest in the home in the a bsence of exigent circumstances. Quoting from a decision of the Second Circuit, the Supreme Cour t explained:

“To be arre sted in the home involves not only the invasion attendant

to all arrests but also an invasion of the sanctity of the home. This is simply too substant

ial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutor y authority and when probable cause is clearly present .”
We find this reasoning to be persuasive and in accord with this Court’s Fourt h Amendment decisions.

. . . . The Fourth Amendment protects the individual’s privacy in a variety of settings. I n none i s the zone of privacy more clearly defined than when bounded by the unambiguou s phys ical dimensions of an individual’s home--a zone that finds its roots in clear and specifi c constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That l anguage unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. ” In terms that apply equally to seizures of property and to sei zures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Abse nt exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Id. at 588-89 (citations omitted) (emphasis added).
Five years later, in 1985, this court stated “[i]t is now clearly established that the [F]ourth [A]mendment prohibits a warrantless entry into a suspect’s home to make a

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routine felony arrest absent consent or exigent circumstan ces.” Schlothauer v. Robinson , 757 F.2d 196, 197 (8th Cir. 1985) (per curiam) (citing Steagald v. United States , 451 U.S. 204, 211-12 (1981); Payton v. New York , 445 U.S. at 586-90); see also United States v. Duchi , 906 F.2d 1278, 1282 (8th Cir. 1990) (“[t]he exigent

circumst ances requirement applies even when, as in this case, probable cause for the arrests clearly exists”)

. Clearly, there was no consent in th is case because the arrest was conducted by means of a forced entry, with gun drawn. Moreo ver, under the Fourth Amendment, Bobby Carter’s arrest of David Rogers in Janice Rogers ’ apartment is tre ated in the same manner as if it had occurred in David Rogers’ own home. See Haley v

. Armontrout , 924 F.2d 735, 736 (8th Cir.) (“[i]t is, of course, well-settled that, absent exigent circumstances, an arrest warrant is required in order to arrest a suspect in his home or in any private place in which the suspect has
a leg itimate expectation of privacy as a guest or otherwise”), cert. denied , 502 U.S. 842 (1991). Under well

establishe d

law, therefore, Bobby Carter’s actions violated David Rogers’ Fourth Amendment rights unles s appellees can show that there were exigent circumst ances in the present case requiring a warrantless home arrest.

In United States v. Duchi , this court explained that “[t]he warrant requirement is suspended when--in t h e press of circumstances beyond a police officer’s control--lives are threatened, a suspect’s escape looms, or evidence is abo ut to be destroyed.” 906 F.2d at 1282. We hold, as a matter of law, that no such exigen t circu mstances existed in the present case. First, as explained above , David Rogers’ decision to retreat into the apar tment

and lock the door was both prudent and lawful under the facts of this case because, o bjectively

speaking, Bobby Carter appeared under the circumstances to be no more than a friend or relative of the apartment complex man ager. There is no basis for finding that David Rogers was or reasonably appeared to be a suspect whose escape was imminent. Nor is there any basis whatsoever for finding that David Rogers was or appeared to be a threat to anyone at the time Bobby Carter kicked in the locked door to arrest him. At that point, David Rogers had already retreated into the apartment . Clearly, there was no issue in this case concerning

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des truction of evidence. Finally, even assuming that David Rogers had committed the offense of disorderl y conduct because he had allegedly played loud music, that v iolation itself does not establish exigent circumstances to justify a warrantless home arrest because it was an extremely minor offense, and any reasonable officer would have k nown that to be true. See Welsh v. Wisconsin , 466 U.S. 740, 752-54 (1984) (“it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor”).

Accordin gly, we hold that the district court erred in granting summary judgment for Bobby Carter and the City on the merits of David Rogers’ Fourth Amendment unlawful arrest claim.
In the alternative, the district court held that Bobby Carte r and the City are entitled to qualified immunity
on David Roger s’ Fourth Amendment unlawful arrest claim. Slip op. at 10 (Mar. 25, 1996). The qualifie d immunity doctrine shields state actors from personal liability where their actions, though unlawful, ar e nevertheless objectively reasonable in light of the clearly established law at the time of the events in question. Anderson v. Creighton , 483 U.S. 635, 638-39 ( 1987) (“whether an official protected by qualified immunity may be held per sonally liable for an allegedly unlawful official action generally turns on the ‘objective lega l reasonableness’ of the act

ion assessed in light of the legal rules that were ‘clearly established’ at the time it was taken”) (citations omitted).

In the present case, Bobby Carter is credited with knowing the clearly established law that the Fourth Amendment

prohibits, absent exigent circumstances, a warrantless forced entry into the home to effectuate an arrest. See Schlothauer v. Robinson , 757 F.2d at 197. Tha t assumption, however, does not end our inquiry. The question now before us is whether Bob by Carter could have “reasonably but mistakenly” concluded that exigent circumstances were present based upon the information he possessed at the time. Anderson v. Creighton , 483 U.S. at 640-41

### We recognize that appellees have not specifically addressed the application of the exigen t 4 

### circum stances requirement in the qualified immunity context, although they certainly have had a n opportunity t o do so in light of Anderson v. Creighton , 483 U.S. 635 (1987). In any case, th e relevant underlying facts hav e been well-developed through discovery, and, because Bobby Carter’s actions may now be assessed in light of essentially undisputed facts, there are no impediments t o disposing of thi s qualified immunity issue at the present time. Cf. id. at 647 n.6 (reversing Court of Appeals’ ho lding that qualified immunity did not apply and remanding the case for consideration of that issue or, if necessary, for further discovery to ascertain the underlying facts relevant to th e qualified immunity inquiry where no discovery had been conducted and the defendant had not had an opportunity to assert a qualified immunity ar gument based upon his alleged objectively reasonable belief that exigent circumstances existed to justify a warrantless home search).
-10- (holding that law enforcement officers sho uld not be held liable if they reasonably but mistakenly concluded that exigent circumstances justified warrantless home search). We emphasize that “[t]he relevant question . . . is the objective (alb eit fact-specific) question.” Id. at 641. Thus, although Bobby Carter may have believed tha t exigent circumstances existed to justify his force d entry and warrantless arrest of David Rogers in the apartment, his subjective beliefs about the lawfulness of his conduct are irrelevant. Id.

As we have already explained, we are of the firm conviction that, under the specific facts of this case, no officer in Bobby Carte

r’s position -- possessing the same information he possessed -- could have reasonably believed that exigent circumstances ex isted to justify the warrantless home arrest of David Rogers, as that arrest
was effectuated by means of a forced entry with gun drawn

. In fact, it is our opinion that no officer in Bobby 2 Carter’s p osition could have reasonably believed that probable cause existed to arrest David Rogers at all

. Accordingly, we hold that the district court erred in concluding, in the alternative, that Bobby Carter and the City are entitled to qualified immunity on David Rogers’ Fourth Amendment unlawful arrest claim.

Conclusion

### -11- We have c arefully examined each of the remaining contentions which have been properly raised o n appea l, and we find them to be without merit. There being no need for further discussion of the issues, th e judgment of the district court is reversed insofar as the distric t court granted summary judgment for Bobby Carter and the City on David Rogers’ Fourth Amendment unlawful arrest claim. The judgment of th e district court is affirmed in all other respects . The case is remanded to the district court for further proceedings consistent with this opinion.
A true copy.

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