*

The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0312p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

CLIFFORD CUMMINGS, JR.,

Plaintiff-Appellant,

v.

CITY OF AKRON; RODNEY SHERMAN; and HOWARD

VAUGHN, JR.,

Defendants-Appellees.

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No. 03-3259

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 02-00410—James S. Gallas, Magistrate Judge.

Submitted: September 16, 2004

Decided and Filed: July 22, 2005 

Before: SUHRHEINRICH and CLAY, Circuit Judges; NIXON, District Judge.*

_________________

COUNSEL

ON BRIEF: Gary H. Levine, Cleveland, Ohio, for Appellant. John C. Reece, Patricia A. Rubright,

CITY OF AKRON, DEPARTMENT OF LAW, Akron, Ohio, for Appellees.

CLAY, J., delivered the opinion of the court, in which NIXON, D. J., joined.

SUHRHEINRICH, J. (pp. 10-14), delivered a separate dissenting opinion.

_________________

OPINION _________________

CLAY, Circuit Judge. Plaintiff Clifford Cummings, Jr. appeals from the district court’s grant

of summary judgment to Defendants City of Akron, Rodney Sherman, and Howard Vaughn, Jr., in

this civil rights action brought pursuant to 42 U.S.C. § 1983, alleging violations of Cummings’

Fourth Amendment rights to be free from unreasonable seizure and excessive force. For the reasons

that follow, we AFFIRM the grant of summary judgment to the City of Akron, as well as the

dismissal of Cummings’ excessive force claim against all Defendants. However, we REVERSE

the grant of summary judgment to Sherman and Vaughn on Cummings’ claims of unreasonable

1
No. 03-3259 Cummings v. City of Akron, et al. Page 2

seizure and illegal entry under the Fourth Amendment, and REMAND for further proceedings

consistent with this opinion.

I. BACKGROUND

A. Underlying Facts and State Court Proceedings

The following material facts are not in dispute. On March 20, 2001, Defendants Sherman

and Vaughn, both Akron police officers, were called to investigate a domestic disturbance call at

1115 Peerless Avenue. The alleged victim informed the officers that the alleged perpetrator, her

boyfriend, Carl Bromback, was at 1125 Peerless Avenue, a neighboring house. Sherman and

Vaughn went to 1125, which was the home of Plaintiff Cummings, to investigate. Sherman opened

the outside screen door, and knocked on the inside entry door. Cummings came to a window from

inside the home, and asked the officers what they wanted; Sherman requested that Cummings come

to the front door. Cummings came to the front door and partially opened it, and spoke briefly with

the officers. During their conversation, Sherman placed one of his feet inside Cummings’ doorway,

while Vaughn stood directly behind him. Sherman asked Cummings whether Bromback was inside

the residence, to which Cummings responded that he was not. Cummings also denied Sherman’s

request to come inside the house. 

While the officers were speaking with Cummings, Sherman detected the odor of marijuana

emanating from inside Cummings’ house. After inquiring about Bromback, Sherman asked

Cummings “what about the weed?,” and Cummings immediately attempted to close his front door.

Sherman’s foot, however, was still inside the doorway, and Cummings was unable to shut the door.

At that point, Sherman and Vaughn both pushed the door open, and entered Cummings’ home.

After Sherman and Vaughn gained entry into Cummings’ house, a struggle ensued. The

officers attempted to arrest Cummings, but he resisted, running out onto his front porch. During the

struggle, Sherman and Vaughn struck Cummings with their fists and batons, and sprayed him with

pepper spray. A third officer arrived on the scene, and used a Taser gun on Cummings. Cummings

was finally subdued, handcuffed, and taken into police custody. After securing Cummings, the

officers re-entered his home and seized marijuana and firearms.

Cummings was charged in the Summit County Court of Common Pleas with two counts of

assaulting a police officer, both felonies, as well as resisting arrest, illegal cultivation of marijuana,

possession of marijuana, and obstructing official business. Cummings pleaded not guilty to all

charges, and filed a motion to suppress evidence. The trial court granted Cummings’ motion to

suppress, and the Ohio Court of Appeals affirmed. See State v. Cummings, No. 20609, 2002 WL

57979 (Ohio Ct. App. Jan. 16, 2002). Before the Ohio Court of Appeals, the State argued that

Sherman and Vaughn were justified in entering Cummings’ home either because he consented, or

because there were exigent circumstances due to the officers’ hot pursuit of a fleeing felon. Id. at

*3-6. The State’s hot pursuit theory rested on the argument that at the point when Cummings shut

the door on Sherman’s foot, he committed a felony assault, and the officers were justified in entering

Cummings’ house to arrest him. Id. at *5. The state did not contend at any point in the proceedings

“that any exigent circumstances except ‘hot pursuit’ justified the officers’ warrantless entry of

Cummings’ home.” Id. at *4, n.2. The Ohio Court of Appeals rejected both the State’s consent

argument and its exigent circumstances due to hot pursuit theory, concluding that the officers’ entry

into Cummings’ home was unlawful, and therefore any evidence obtained as a result of that entry

was properly suppressed. Id. at *6.

On remand back to the trial court after the Ohio Court of Appeals’ rejection of the State’s

suppression arguments, Cummings pleaded no contest to a reduced charge of misdemeanor assault
No. 03-3259 Cummings v. City of Akron, et al. Page 3

1

Contrary to the dissent’s understanding, it was Sherman, and not Vaughn, who placed his foot in Cummings’

door. Cummings pleaded no contest to assaulting Vaughn and Vaughn alone; thus the dissent’s out-of-context quotation

of our later discussion of whether Cummings’ act of shutting the door on Sherman’s foot could have constituted an

assault under Ohio law is entirely irrelevant to the assault he actually pleaded no contest to. See note 4, infra.

2

Cummings also had several state law claims, over which the magistrate judge declined to exercise

supplemental jurisdiction, and dismissed without prejudice.

3

Incidentally, Defendants did not raise Heck in their motion for summary judgment. We have not explicitly

held whether Heck constitutes an affirmative defense, although at least one of our sister circuits has found that defendants

may waive Heck arguments by failing to make them before the district court. See Kramer v. Village of North Fond du

Lac, 384 F.3d 856, 862 (7th Cir. 2004); but see Manthey v. Kessler, 79 Fed. Appx. 153, 153-54 (6th Cir. 2003)

(unpublished decision) (affirming without analysis district court’s sua sponte finding that Heck barred the plaintiff’s

claims); Gil v. City of New York, 32 Fed. Appx. 615, 616 (2d Cir. 2002) (unpublished decision) (same). In any event,

Plaintiff has not argued on appeal that Heck constitutes an affirmative defense; thus it is unnecessary for this Court to

make any such finding. 

on Officer Vaughn, and all other charges against him were dropped.1 He was sentenced to thirty

days in jail on the assault charge, with credit for time served. 

B. The Instant Lawsuit and Claims Presented on Appeal

Before the trial court accepted his plea and entered judgment on remand, Cummings filed

the instant lawsuit in federal district court. The parties consented to have the suit heard by a

magistrate judge, and following discovery, the magistrate granted Defendants’ motion for summary

judgment. Specifically, the magistrate judge concluded that Heck v. Humphrey, 512 U.S. 477

(1994), barred all of Cummings’ federal constitutional claims, and further, that Defendants were

entitled to qualified immunity on those claims.2

On appeal, Cummings argues that the magistrate judge erred in rejecting his federal claims.

The pleadings below, the magistrate judge’s decision, and the parties’ appellate briefs are less than

clear in their treatment of the issues presented for review. Cummings’ complaint contains a single

federal constitutional claim, labeled “Count III - Deprivation of Civil Rights.” The substance of this

claim, as it appears in the complaint, is that “By seizing, beating, restraining and/or committing the

actions hereinbefore described, Defendants deprived Plaintiff of his liberty interests under the Due

Process clause of the Fourteenth Amendment to the United States Constitution and in violation of

42 U.S.C. § 1983.” However, statements made by both Cummings’ counsel and Defendants’

counsel during Cummings’ deposition demonstrate that both sides understood Cummings’ suit to

encompass Fourth Amendment claims for “unlawful entry” and “excessive use of force.”

(Cummings Dep. at 116, J.A. at 109.) When Defendants moved for summary judgment, it is clear

from the legal memoranda submitted to the district court that they understood that Cummings was

suing for the officers’ allegedly illegal seizure of his person, allegedly unlawful entry into his home,

and alleged use of excessive force, all violations of the Fourth Amendment. However, the

magistrate judge only addressed the seizure of Cummings’ person and the officers’ use of excessive

force, concluding that both claims are barred by Heck.

3

 The magistrate judge went on to state that:

The Court realizes that the defendants seek summary judgment on whether or not

there was an unlawful warrantless entry into Cummings’ home, but this allegation

was not raised in the counts recited in the complaint, and this Court sees no need to

expand upon issues which were not raised. 

On appeal, Defendants cite to the magistrate judge’s statement and argue that this Court

should not entertain on appeal Cummings’ claim for unlawful entry. We disagree. As an initial

matter, the magistrate judge’s decision not to address the claim is irrelevant to the question of
No. 03-3259 Cummings v. City of Akron, et al. Page 4

whether this Court may address it on appeal. We apply a “course of the proceedings” test to

determine whether defendants in a § 1983 action have received notice of the plaintiff’s claims where

the complaint is ambiguous. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en

banc) (holding that failure to explicitly state in complaint whether a defendant is being sued in his

or her individual capacity “is not fatal if the course of the proceedings otherwise indicate that the

defendant received sufficient notice”). Here, regardless of the fact that Cummings failed to raise

unlawful entry in his complaint, Defendants were clearly on notice of Cummings’ unlawful entry

claim; in fact, Defendants moved for summary judgment on the unlawful entry claim, which was

fully briefed below by both parties. See, id. at 774 (“Subsequent filings in a case may rectify

deficiencies in the initial pleadings.”); see also Vencor, Inc. v. Standard Life and Accident Ins. Co., 317 F.3d 629, 641, n.11 (6th Cir. 2003) (rejecting defendant’s claim on appeal that plaintiff waived

argument by not putting it in complaint, where plaintiff made the argument in its memorandum in

opposition to defendant’s motion for summary judgment). Notwithstanding the magistrate judge’s

statements, because Defendants failed to make any objection whatsoever to Cummings’ failure to

raise the unlawful entry claim in his complaint, we deem any objection waived for the purposes of

this appeal. See Smoot v. United Transp. Union, 246 F.3d 633, 648 (6th Cir. 2001) (“Because

[defendant] failed to object . . . below, under the waiver rule this Court will not consider

[defendant’s] claim”); United States v. Burns, 441 F.2d 544, 545 (9th Cir. 1971) (“[F]ailure to object

to the sufficiency of the complaint in the district court waives the point on appeal.”). 

Based on the above, we find Cummings to have preserved essentially three separate

constitutional claims for appeal, each of which has its genesis in the Fourth Amendment. First,

Cummings argues that Sherman’s and Vaughn’s entry into his home– both Sherman’s initial foot-inthe door entry, and both officers’ subsequent forced entry–was in violation of the Fourth

Amendment, because the officers did not have a warrant or probable cause, and no exigent

circumstances supported their entry. Second, Cummings claims that Sherman and Vaughn illegally

seized him without probable cause. And third, Cummings asserts that Sherman and Vaughn used

excessive force against him. 

II. DISCUSSION

A. Standard of Review

We review the district court’s grant of summary judgment de novo. Moorer v. Baptist

Memorial Health Care Sys., 398 F.3d 469, 486 (6th Cir. 2005). Summary judgment is appropriate

where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We “must view all the facts

and the inferences drawn therefrom in the light most favorable to the nonmoving party,” Birch v.

Cuyahoga County Probate Court, 392 F.3d 151, 157 (6th Cir. 2004), but we will uphold a grant of

summary judgment “[w]here the record as a whole could not lead a rational trier of fact to find for

the non-moving party,” Matsushita Electric Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

B. Heck v. Humphrey

The magistrate judge granted summary judgment in Defendants’ favor based on his finding

that “Cummings is clearly confronted with a Heck v. Humphrey dilemma.” Heck bars § 1983

plaintiffs from advancing claims that, if successful, “would necessarily imply the invalidity” of a

prior conviction or sentence. Heck, 512 U.S. at 487. However, if “the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id.

(emphasis in original). In the instant case, the magistrate judge concluded that Cummings’ success
No. 03-3259 Cummings v. City of Akron, et al. Page 5

on any of his federal constitutional claims would necessarily imply the invalidity of his state court

misdemeanor assault conviction. 

We agree with the magistrate judge that success on Cummings’ excessive force claim would

necessarily imply the invalidity of his state assault conviction. The struggle between Cummings and

the officers gave rise to both Cummings’ assault conviction and the excessive force claim, and the

two are inextricably intertwined. Additionally, Cummings could have raised excessive force as a

defense to the assault charge, but instead he chose not to contest the charge. Thus, we hold that

Heck bars Cummings’ excessive force claim from moving forward, and we affirm the district court’s

grant of summary judgment to Defendants’ on this claim.

However, we disagree with the magistrate judge’s conclusion that Heck bars Cummings’

unreasonable seizure and unlawful entry claims. Under Ohio law, Cummings was barred from

raising the illegality of the entry into his home or the unreasonableness of the officers’ initial seizure

of his person as defenses to assault. The traditional common law rule allowing individuals to resist

illegal arrests has been explicitly disregarded by the Ohio Supreme Court. See City of Columbus

v. Fraley, 324 N.E.2d 735, 740 (Ohio 1975). In Fraley, the court held that “in the absence of

excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist

arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the

performance of his duties, whether or not the arrest is illegal under the circumstances.” Id. The

court later refined this holding in the context of a Fourth Amendment violation:

A warrantless entry . . . may quite possibly result in the exclusion of pertinent

incriminating evidence observed in such entry, and the showing of unreasonable

conduct by a law enforcement officer may well provide a privilege to resist the entry

by the occupant. Nevertheless, absent bad faith on the part of a law enforcement

officer, an occupant . . . cannot obstruct the officer in the discharge of his duty,

whether or not the officer’s actions are lawful under the circumstances.

State v. Pembaur, 459 N.E.2d 217, 219 (Ohio 1984). 

Contrary to the dissent’s claim, Fraley and Pembaur hold that the invalidity or unlawfulness

of a warrantless entry is not a defense to the charge that a criminal defendant assaulted a police

officer, and that absent excessive force, an arrestee may not use force against an officer. Id. at 219;

Fraley, 324 N.E.2d at 740. In Pembaur, the Ohio Supreme Court made clear that the exclusive

remedy for an unlawful entry by police officers is the suppression of any incriminating evidence that

is uncovered as a result of the illegal entry. See Pembaur, 459 N.E.2d at 219 (“Although defendant

may well successfully challenge the use against him of any evidence obtained by the deputies in

their search . . . defendant was not privileged to physically impede the deputies.”). The dissent’s

citation to City of Middleburg Heights v. Theiss, 501 N.E.2d 1226 (Ohio Ct. App. 1985), is also

misplaced. Theiss notes in dicta that individuals are privileged to refuse entry to police officers;

however, the court distinguished between the right to refuse initial entry and a right to assault

officers once they have gained entry; the latter is what Cummings pleaded no contest to, and like

Fraley and Pembaur, Theiss concludes that unlawful entry is not a defense to assaulting a police

officer. 501 N.E.2d at 1229 (“[T]he critical issue to resolve is whether, assuming the entrance was

unlawful, the defendants were then privileged to assault police officers after they had gained

entrance into the home. We think not.”) (emphasis in original). 

Cummings contested the officers’ actions in the course of his criminal prosecution by

moving to suppress evidence obtained as a result of the warrantless entry, an argument that, as

mentioned, was successful before both the trial court and the court of appeals. Separate and apart

from the fact that both the trial and appellate courts found that Sherman and Vaughn violated

Cummings’ Fourth Amendment right to be free from unreasonable search and seizure, Cummings’
No. 03-3259 Cummings v. City of Akron, et al. Page 6

only defense to the assault charge against him would have been to claim that the officers used

excessive force. Cummings did not make such an argument, instead pleading no contest to

assaulting Vaughn. It is for this reason that Heck bars Cummings’ Fourth Amendment excessive

force claim from moving forward in the instant lawsuit. However, because Cummings had no other

Fourth Amendment defense to the assault charge, a successful suit under § 1983 against both

Sherman and Vaughn for entering his home without a warrant and probable cause would not “imply

the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. Additionally, although Ohio

law barred Cummings from asserting the illegality of the seizure of his person in the context of the

assault charge, Heck is not a bar to Cummings’ assertion of the illegal seizure claim in the instant

suit for damages. Cummings’ assault conviction cannot be disturbed whether he was legally or

illegally seized; thus, the relevant question becomes whether or not the seizure of Cummings’ person

and entry into his home were illegal, and if they were, whether Cummings suffered a compensable

injury. See Braxton v. Scott, 905 F. Supp. 455, 458 (N.D. Ohio 1995) (quoted in Shamaeizadeh v.

Cunigan, 182 F.3d 391, 396 (6th Cir. 1999)) (“[F]ourth amendment claims under § 1983 may be

brought without setting aside the conviction only if success would not undermine the conviction and

if the plaintiff alleges a compensable injury other than the conviction.”) 

One other point about Heck should be mentioned. The factual situation in this case is

distinguishable from the hypothetical situation discussed in footnote 6 of Heck, in which the Court

foreclosed § 1983 lawsuits based upon Fourth Amendment violations where the plaintiff was

previously convicted in state court of resisting arrest. Heck, 512 U.S. at 487, n. 6. The Court

explains that a subsequent suit for damages would not be cognizable because a lawful arrest is an

element of the typical offense of resisting arrest, and thus “[i]n order to prevail in this § 1983 action,

[the plaintiff] would have to negate an element of the offense of which he has been convicted.” Id.

Conversely, Cummings was convicted of assault, not resisting arrest, and the lawfulness of the arrest

is not an element of the crime of his conviction. Indeed, as discussed above, the legality of the arrest

is irrelevant to Cummings’ crime of conviction. Thus, footnote 6 of Heck is inapposite to the present

case. 

C. Municipal Liability

Before addressing the merits of Cummings’ claims against Sherman and Vaughn, we note

that the district court properly dismissed all claims against the City of Akron. “[A] municipality

cannot be held liable solely because it employs a tortfeasor-- or, in other words, a municipality

cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978). Rather, in order to hold a municipality liable, the § 1983 plaintiff

must show that he or she was injured as a direct result of the municipality’s official policy or

custom. City of Canton v. Harris, 489 U.S. 378, 385 (1989); Gray v. City of Detroit, 399 F.3d 612,

617 (6th Cir. 2005). In this case, Cummings has not shown a causal link between a policy or

custom of the City of Akron and a violation of his constitutional rights. Thus, the district court

properly granted summary judgment in the City’s favor.

D. Qualified Immunity and the Legality of the Officers’ Actions

We now turn to the claims against Officers Sherman and Vaughn. Having found that Heck

is not a bar to some of Cummings’ claims, the question turns to whether the officers are protected

by qualified immunity. Qualified immunity is an affirmative defense that generally shields

government officials from suit under § 1983 for their discretionary actions. Thomas v. Cohen, 304

F.3d 563, 568 (6th Cir. 2002) (citing Anderson v. Creighton, 483 U.S. 635, 638-40 (1987); Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). In order to defeat Sherman’s and Vaughn’s assertion of

qualified immunity, Cummings must demonstrate that (1) Sherman and Vaughn deprived him of a

constitutionally protected right, and (2) that the right is “so clearly established that a reasonable

officer would understand that his or her actions would violate that right.” Id. at 569 (citing Harlow,
No. 03-3259 Cummings v. City of Akron, et al. Page 7

457 U.S. at 818). Thus, “[t]he threshold inquiry a court must undertake in a qualified immunity

analysis is whether plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.

Pelzer, 536 U.S. 730, 736 (2002). 

1. Deprivation of a constitutionally protected right

“It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home

without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980)

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)); cf. Welsh v. Wisconsin, 466 U.S.

740, 748 (“It is axiomatic that the physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.”) (quotation and citation omitted). Without a warrant

or consent, searches or seizures inside the home are upheld only “under extraordinary

circumstances,” because “[t]he freedom from armed intrusions of the home outside the judicial

process, without prior approval by a judge or magistrate . . . is one of our most basic civil liberties.”

United States v. Chambers, 395 F.3d 563, 565, 569 (6th Cir. 2005). 

Sherman and Vaughn had no warrant to arrest Cummings or to search his residence, and

Cummings did not consent to the officers’ entry into, or presence in, his home. Cummings

manifested his intent to keep the inside of his home private, first by attempting to talk to the officers

through the window, and later by only partially opening the front door during his conversation with

the officers and refusing their request to enter the house. Cummings also demonstrated that he

wished to end his conversation with the officers when he attempted to close the door, but he was

prevented from doing so by the presence of Sherman’s foot in the doorway. For these reasons, it

is clear, as the Ohio Court of Appeals found, that Cummings’ “attempt to close the door constituted

a termination of the consensual encounter, and communicated his lack of consent to any further

intrusion by the officers.” Cummings, supra, 2002 WL 57979 at *4. 

Defendants contend, as did the State in response to Cummings’ motion to suppress, that

when Cummings shut the door on Sherman’s foot, the officers had probable cause to believe that

Cummings had committed the crime of assault, and any entry into his home to seize him was

justified by exigent circumstances under the hot pursuit of a fleeing felon exception to the warrant

requirement. See, e.g., United States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003) (recognizing

“hot pursuit of a fleeing felon” as an exigency exception to the warrant requirement). We agree with

the Ohio Court of Appeals that this argument is without merit. As that court recognized, the key to

the hot pursuit exception is “that a suspect may not defeat an arrest which has been set in motion in

a public place . . . by the expedient of escaping to a private place.” United States v. Santana, 427

U.S. 38, 43 (1976). Typically, hot pursuit involves a situation where a suspect commits a crime,

flees and thereby exposes himself to the public, attempts to evade capture by entering a dwelling,

and the emergency nature of the situation necessitates immediate police action to apprehend the

suspect. See, e.g., Warden v. Hayden, 387 U.S. 294, 298-9 (1967); United States v. Bass, 315 F.3d

561, 564 (6th Cir. 2002); see also United States v. Saari, 272 F.3d 804, 812 (6th Cir. 2001)

(describing hot pursuit as “immediate or continuous pursuit of the Defendant from the scene of a

crime.”) In Santana, the Supreme Court upheld the effectuation of a warrantless arrest of the

defendant inside her home, because the police initiated the arrest while she was standing in the open

doorway of her house, and she retreated inside before the police could apprehend her. Integral to

the Court’s analysis was a finding that Santana “was not merely visible to the public but was as

exposed to public view, speech, hearing, and touch as if she had been standing completely outside

her house,” and thus she had no legitimate expectation of privacy at the time the police initiated the

arrest. Santana, 427 U.S. at 42. 

In contrast to Warden and its progeny, Cummings did not commit a crime in a public place

and attempt to flee into his house; in contrast to Santana, Cummings never fully exposed himself

to the public view, given that he only opened the door very slightly, and only at the request of the
No. 03-3259 Cummings v. City of Akron, et al. Page 8

4

Defendants have not claimed any basis for exigent circumstances other than hot pursuit of a fleeing felon, such

as imminent destruction of evidence. Because qualified immunity must be asserted by the defendant official, it was

incumbent upon Defendants to raise a plausible legal basis for the asserted legality of their seizure of Cummings’ home

and person. 

In addition, as we stated in note 1, supra, our discussion of the officers’ hot pursuit theory, and their claim that

Cummings assaulted Sherman by shutting the door on his foot, should not be confused with the fact that Cummings

pleaded no contest to assaulting Vaughn alone. Therefore, the dissent’s quotation of the above paragraph in the context

of discussing Heck is misplaced. 

police. Additionally, unlike the situation in Santana, Sherman and Vaughn did not attempt to arrest

Cummings until after he tried to shut the door, at which point he clearly indicated that he did not

wish to be exposed to the public. Furthermore, it is highly questionable whether Cummings’ act of

closing the door on Sherman’s foot actually constituted an assault; if there is no underlying felony,

the ‘hot pursuit of a fleeing felon’ exception to the warrant requirement is untenable. Ohio’s assault

statute states that “[n]o person shall knowingly cause or attempt to cause physical harm to another,”

and “[n]o person shall recklessly cause serious physical harm to another.” Ohio Rev. Code

§ 2903.13 (A), (B) (emphasis added). There is no evidence on the record before us to suggest that

Cummings knew Sherman’s foot was in the doorway when he attempted to shut door, and the Ohio

Court of Appeals found it “undisputed that, whatever amount of force was applied, Officer

Sherman’s foot sustained no injuries as a result of Cummings’ attempt to close the door.”

Cummings, 2002 WL 57979 at *1, n.1. Given Cummings’ lack of exposure to the public view, as

well as the very questionable nature of the felony that Defendants allege he committed, the hot

pursuit of a fleeing felon exception to the warrant requirement is inapplicable.4

 

Because Sherman’s and Vaughn’s seizure of Cummings’ person and entry into his home

were unsupported by a warrant, consent or exigent circumstances based upon the hot pursuit of a

fleeing felon, the officers deprived Cummings of his constitutionally protected right to refuse entry

into his home, and to be free from an unreasonable seizure of his person.

2. Clearly established nature of the constitutional violation

Having found a violation of Cummings’ Fourth Amendment rights, we now turn to whether

those rights were clearly established at the time of Cummings’ arrest. In order to determine whether

a constitutional right is clearly established, we “look first to decisions of the Supreme Court, then

to decisions of this Court and other courts within our circuit, and finally to decisions of other

circuits.” Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir. 1994). In order for a constitutional right

to be clearly established, there need not be a case with the exact same fact pattern, or even

“fundamentally similar” or “materially similar” facts; rather, the question is whether the defendants

had “fair warning” that their actions were unconstitutional. Hope, supra, 536 U.S. at 741; cf. United

States v. Lanier, 520 U.S. 259, 271 (1997) (“[G]eneral statements of the law are not inherently

incapable of giving fair and clear warning, and in [some] instances a general constitutional rule

already identified in the decisional law may apply with obvious clarity to the specific conduct in

question, even though the very action in question has not previously been held unlawful.”)

(quotation and citation omitted).

In the instant case, one not need go any further than Supreme Court precedent to see that

Cummings’ constitutional rights were clearly established. The bedrock Fourth Amendment

principles announced in Payton and Welsh demonstrate that the officers’ forced warrantless entry

into Cummings’ home was presumptively unreasonable, and the Court’s exigency decisions in

Warden and Santana clearly show that Sherman and Vaughn had no objectively reasonable basis

for believing that their warrantless entry into Cummings’ home was supported by the exigency of

hot pursuit of a fleeing felon. Therefore, we find that Sherman and Vaughn are not shielded by

qualified immunity, and Cummings’ Fourth Amendment claims for the warrantless entry into his
No. 03-3259 Cummings v. City of Akron, et al. Page 9

home and seizure of his person may go forward. On remand, the trier of fact will need to determine

what, if any, injury Cummings suffered as a result of Defendants’ actions, and what, if any,

monetary damages Cummings is entitled to as compensation. 

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s grant of summary judgment

in favor of the City of Akron, and the grant of summary judgment in Defendants’ favor on

Cummings’ excessive force claim. However, we REVERSE the grant of summary judgment in

favor of Defendants Sherman and Vaughn on Cummings’ unlawful entry and illegal seizure claims,

and REMAND the case to the district court for further proceedings consistent with this opinion.
No. 03-3259 Cummings v. City of Akron, et al. Page 10

________________

DISSENT ________________

SUHRHEINRICH, Circuit Judge, dissenting. I dissent from the majority’s decision to

reverse because I believe Cummings’ federal constitutional claims collaterally attack the legality of

his state court assault conviction. Because Cummings’ state conviction has not been overturned on

appeal, expunged by the governor, declared invalid, or questioned by a habeas grant, all of his

federal claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).

The majority acknowledges the effect of Cummings’ plea agreement, and Heck, on at least

some of Cummings’ subsequent federal constitutional claims by stating that:

success on Cummings’ excessive force claim would necessarily imply the invalidity

of his state assault conviction. The struggle between Cummings and the officers

gave rise to both Cummings’ assault conviction and the excessive force claim, and

the two are inextricably intertwined. Additionally, Cummings could have raised

excessive force as a defense to the assault charge, but instead he chose not to contest

the charge. 

Maj. Op. at 5.

However, the majority holds that Cummings can maintain his § 1983 unlawful entry and

illegal seizure claims because, under Ohio law, Cummings cannot claim illegal entry or illegal

seizure as defenses to assault and, therefore, a successful conviction as to these claims would not

“imply the invalidity of [Cummings’] conviction or sentence.” Even if Cummings was precluded

from raising the privilege of illegal entry and seizure as a matter of law (a point I dispute, as

discussed below), he could have raised these issues as a matter of fact to argue that the State could

not prove he had the requisite mens rea for assault. 

The indictment reads in relevant part: 

The Jurors of the Grand Jury of the State of Ohio . . . 

COUNT ONE 

DO FIND AND PRESENT That CLIFFORD CUMMINGS, JR. On or about the

9th day of March, 2001, in the County of Summit and State of Ohio, aforesaid, did

commit the crime of ASSAULT in that he did knowingly cause or attempt to cause

physical harm to Office Howard Vaughn, a peace officer, while in the performance

of official duties, in violation of Section 2903.13(A) of the Ohio Revised Code. A

FELONY OF THE FOURTH DEGREE, contrary to the form of the state in such

case made and provided and against the peace and dignity of the State of Ohio.

 . . . 

No. 2001-03-0585, Court of Common Pleas, County of Summit, Ohio (March, 2001). 

Had Cummings pleaded “not guilty” instead of “no contest,” to this charge, the State would

have been required to prove beyond a reasonable doubt that Cummings “knowingly cause[d], or

attempt[ed] to cause physical harm to another.” Ohio Rev. Code § 2903.13 (emphasis added). That

is, the State would have been required to prove that Cummings was aware that his conduct would

probably cause a certain result or would probably be of a certain nature, regardless of his purpose
No. 03-3259 Cummings v. City of Akron, et al. Page 11

1

It should be noted that Cummings originally pleaded not guilty to all the charges against him, and filed a

motion to suppress. See State v. Cummings, No. 20609, 2002WL 57979, at *2 (Ohio Ct. App. Jan. 16, 2002). The trial

court granted the motion and the State appealed. On January 16, 2002, the Ohio Court of Appeals overruled the State’s

appeal and affirmed the trial court’s ruling. Then, on March 22, 2002, two months after the court of appeals’ decision,

Cummings apparently changed course and pleaded “no contest” in return for the State dropping all but the assault

charges against him, and reducing the felony assault charge to a misdemeanor. However, in the meantime, on March

5, 2002, Cummings filed this federal cause of action, asserting his Fourth Amendment claims. 

in so acting. See State v. Brown, 630 N.E. 2d 397 (Ohio App. 3d 1993) (defining “knowingly” for

purposes of Ohio Rev. Code § 2903.13). Yet, as the majority points out:

[I]t is highly questionable whether Cummings’ act of closing the door on Sherman’s

foot actually constituted an assault; if there is no underlying felony, the ‘hot pursuit

of a fleeing felon’ exception to the warrant requirement is untenable. Ohio’s assault

statute states that “[n]o person shall knowingly cause or attempt to cause physical

harm to another,” and “[n]o person shall recklessly cause serious physical harm to

another.” OHIO REV. CODE § 2903.12(A), (B) (emphasis added). There is no

evidence on the record before us to suggest that Cummings knew Sherman’s foot

was in the doorway when Cummings attempted to shut [the] door, and the Ohio

Court of Appeals found it “undisputed that, whatever amount of force was applied,

Officer Sherman’s foot sustained no injuries as a result of Cummings’ attempt to

close the door.” Cummings, 2002 WL 57979, at *1, n.1. Given Cummings’ lack of

exposure to public view, as well as the very questionable nature of the felony

Defendants allege he committed, the hot pursuit exception to the warrant requirement

is inapplicable. 

Because Sherman’s and Vaughn’s seizure of Cummings’ person and entry

into his home were unsupported by a warrant, consent or exigent circumstances

based upon the hot pursuit of a fleeing felon, the officers deprived Cummings of his

constitutionally protected right to refuse entry into his home, and to be free from an

unreasonable seizure of his person. 

Maj. Op. at 8 (footnote omitted). 

As the foregoing passage makes clear, Cummings could have argued that he did not have the

requisite criminal intent to commit the crime of assault because all he was trying to do was exercise

his well-established constitutional right to refuse the officers’ request for entry and close the door

to his home since the officers had neither a search warrant nor arrest warrant, and did not otherwise

indicate that they were operating under exigent circumstances. And, as the Ohio Court of Appeals

found, Sherman’s and Vaughn’s actions were indeed unlawful. Thus, on the facts of this case, the

legality or illegality of the officers’ presence was integrally connected to Cummings’ response to

the officers’ presence, and therefore his state of mind at the time of the alleged crime. In short,

contrary to the conclusion of the majority, Cummings had a perfect opportunity to raise his Fourth

Amendment claim in the state court criminal proceedings–to rebut the State’s contention that he had

the requisite mens rea to commit the crime of criminal assault. 

Instead, on March 19, 2002, Cummings pled “no contest” to the charge of assault against

Officer Vaughn as contained in Count I of the indictment.1

 The order of the Court of Common Pleas

reads in part:

Defendant retracts his plea of NOT GUILTY heretofore entered, and for plea to said

Indictment, says he pleads NO CONTEST to the charge of ASSAULT, as contained

in the amended Count I of the Indictment, Ohio Revised Code section 2919.13(A),
No. 03-3259 Cummings v. City of Akron, et al. Page 12

2

As the Ohio Court of Appeals has observed, “[t]he extent of the privilege to resist unlawful entry into the home

has yet to be dealt with in Ohio.” State v. Howard, 600 N.E. 2d 809, 816 (Ohio Ct. App. 1991) (quoting Middleburg

Heights v. Theiss, 501 N.E. 2d 1226 (Ohio Ct. App. 1985); see also Howard at 817 (noting a limited right to refuse entry

and stating that an occupant can refuse to consent to an entry and search by, for example, locking or closing the door

or physically placing one’s self in the officer’s way).

a misdemeanor of the first (1st) degree, which offense occurred on or about March

9, 2001, which plea voluntarily made and with a full understanding of the

consequences, is accepted by the Court. And based upon the facts as found by this

Court, the Court finds that the Defendant is GUILTY as stated above.

No. CR 01 03 0585, Court of Common Pleas, County of Summit, Ohio (March 19, 2002) (emphasis

added). The order also indicates that Cummings was represented by counsel and was “fully advised

of his Constitutional rights and his rights as required under Rule 11 of the Ohio Rules of Criminal

Procedure.” Id. Based on Cummings’ “no contest” plea, the court dismissed the remaining charges

against him.

As is clear from the state court order, Cummings was advised of his constitutional rights and

was made aware of the fact that a “no contest” plea amounted to the court finding him guilty of

criminal assault. Instead of pleading no contest, Cummings could have raised any Fourth

Amendment arguments which might have affected a determination of whether he was guilty of

assault. It is for this reason that Heck bars any claim in federal court based on the unlawful entry,

because a favorable ruling for Cummings on his federal constitutional claims necessarily implies that

he did not have the criminal intent to commit the crime of assault in that he did not knowingly intend

to cause physical harm to either officer but merely wished to refuse them entry into his home

because they had no right to come inside. However, by pleading no contest to those charges,

Cummings necessarily admitted that he was guilty of, and therefore had the criminal intent to

commit, the crime of assault. 

The majority also overstates the holdings of City of Columbus v. Fraley, 324 N.E.2d 735

(Ohio 1975), and State v. Pembaur, 459 N.E. 217 (Ohio 1984), as an absolute bar to these defenses.2

In Fraley, the defendant was convicted of violating an ordinance prohibiting the use of obscene

language on public streets and of also violating an ordinance prohibiting the use of violence against

a police officer. The Ohio Supreme Court rejected the defendant’s argument that she was privileged

to use force in resisting arrest if her arrest for the alleged use of obscene language was illegal. Id.

at 739. The Court held that “in the absence of excessive or unnecessary force by an arresting officer,

a private citizen may not use force to resist arrest by one he knows, or has good reason to believe,

is an authorized police officer engaged in the performance of his duties, whether or not the arrest

is illegal under the circumstances.” Id. at 740. 

In Pembaur, the defendant refused to allow two Cincinnati police officers to serve two bench

warrants upon two of his employees at his medical clinic, which was open to the public. The

defendant was charged with obstructing official business under Ohio Rev. Code § 2921.31(A). Id.

at 217-18. Stating that “[t]he key issue presented in this case is whether a person may obstruct a law

enforcement officer in the discharge of that officer’s duty, when the person believes that the officer’s

conduct is unlawful,” id. at 218, the Pembaur Court looked to Fraley:

The crux of this case is the applicability of Columbus v. Fraley . . . . There we held

in the third paragraph of the syllabus that:

“In the absence of excessive or unnecessary force by an arresting officer, a private

citizen may not use force to resist arrest by one he knows, or has good reason to
No. 03-3259 Cummings v. City of Akron, et al. Page 13

believe, is an authorized police officer engaged in the performance of his duties,

whether or not the arrest is illegal under the circumstances.” 

In altering the common-law rule granting a person the right to resist an unlawful

arrest, the Fraley court deemed it preferable, considering the crunch of modern

society, to resolve the questions concerning the legality of police conduct in the

courts through peaceful means rather than on the street in potentially violent

confrontation. Fraley is determinative in the present case. Although defendant may

well successfully challenge the use against him of any evidence obtained by the

deputies in their search for defendant’s employees, defendant was not privileged to

physically impede the deputies in their attempt to locate the subject of the capiases.

This, of course, is not to hold that law enforcement officials can freely execute

capiases and arrest warrants on third-party premises. A warrantless entry, as in this

case, may quite possibly result in the exclusion of pertinent incriminating evidence

observed in such entry, and the showing of unreasonable conduct by a law

enforcement officer may well provide a privilege to resist the [warrantless] entry by

the occupant. Nevertheless, absent bad faith on the part of a law enforcement

officer, an occupant of business premises cannot obstruct the officer in the discharge

of his duty whether or not the officer’s actions are lawful under the circumstances.

The facts in this case do not show bad faith on the part of the deputies, or any other

circumstances which would provide a privilege on the part of defendant to obstruct

the deputies in the discharge of their duties. 

Pembaur, 459 N.E. at 219 (emphasis added). 

Contrary to the majority’s representations, Fraley and Pembaur do not set forth a per se rule

barring the defense of illegality to a police officer’s entry. Furthermore, both cases dealt with public

places, not private homes. As the United States Supreme Court observed in Steagald v. United

States, 451 U.S. 201 (1981):

Except in such special situations, we have consistently held that the entry into a

home to conduct a search or make an arrest is unreasonable under the Fourth

Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U.S.

573 . . . (1980); Johnson v. United States, 333 U.S. 10, 13-15 . . . (1948). Thus, as

we recently observed: “In terms that apply equally to seizures of property and to

seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to

the house. Absent exigent circumstances, that threshold may not reasonably be

crossed without a warrant.” Payton v. New York, supra, 445 U.S. at 590. 

Steagald, 451 U.S. at 211-12. 

I submit that, under Fraley and Pembaur, Cummings could have asserted the

unreasonableness of that Sherman’s and Vaughn’s conduct as a defense to the state assault charge.

After all, the majority observes “[t]he bedrock Fourth amendment principles announced in Payton

and Welsh demonstrates that the officers’ forced warrantless entry into Cummings’ home was

presumptively unreasonable, and the Court’s exigency decisions in Warden and Santana clearly

show that Sherman and Vaughn had no objectively reasonable basis for believing that their

warrantless entry into Cummings’ home was supported by the exigency of hot pursuit of a fleeing

felon.” Maj. Op. at 8 (emphasis added). 

In short, by pleading no contest to the assault charge, Cummings conceded that he acted

unlawfully, without justification. A conclusion by a federal court that the officers’ conduct was

illegal necessarily undermines that judgment of conviction. Furthermore, because Cummings could
No. 03-3259 Cummings v. City of Akron, et al. Page 14

have raised the officers’ illegal search and seizure as a defense –arguably as a matter of law anc

certainly as a matter of fact–the federal court action is barred by Heck.

Unfortunately, the Court today has allowed Cummings to make an end run around Heck, and

ultimately, the underlying state criminal proceeding Heck seeks to protect. 

For these reasons, I DISSENT.