United States Court of Appeals,

Eleventh Circuit.

No. 93-9298.

Leonard HARTSFIELD, Sr., Mattie Hartsfield, PlaintiffsAppellants,

v.

D.G. LEMACKS, Individually and in his official capacities as

Sheriff of Clayton County and as a member of The Clayton County

Narcotics Unit, Robert E. Keller, individually and in his official

capacities as District Attorney of Clayton County and a member of

The Clayton County Narcotics Unit, Ricky McCane, individually and

in his official capacities as a Police Officer with the Clayton

County Police Department and a Narcotics Agent with The Clayton

County Narcotics Unit, Ronnie Clackum, individually and in his

official capacities as Police Chief of Clayton County and a member

of The Clayton County Narcotics Unit, Don Colburn, individually and

in his official capacities as an investigator with the Clayton

County District Attorney's Office and Chief Agent of The Clayton

County Narcotics Unit, et. al., Defendants-Appellees.

April 24, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:92-cv-423-RHH), Robert H. Hall, Judge.

Before KRAVITCH, Circuit Judge, and GODBOLD and RONEY, Senior

Circuit Judges.

KRAVITCH, Circuit Judge:

This case arises out of an entry by law enforcement agents

into the wrong residence to execute a presumably valid search

warrant for a nearby house. Plaintiffs-Appellants Leonard and

Mattie Hartsfield contest the district court's grant of summary

judgment on, and dismissal of, their constitutional claims brought

pursuant to 42 U.S.C. § 1983. We AFFIRM in part, REVERSE in part,

and REMAND.

I.

"[T]he issue of a government official's qualified immunity

from suit presents a question of law, and "like the generality of
 1

McCain's name is misspelled as "McCane" in the caption of

this case and was misspelled at times in the district court as

well. 

such questions, must be resolved de novo on appeal.' " Jordan v.

Doe, 38 F.3d 1559, 1563 (11th Cir.1994) (quoting Elder v. Holloway,

--- U.S. ----, ----, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994)).

"Moreover, when a defendant moves for summary judgment based on the

doctrine of qualified immunity, the court must view the facts in

the light most favorable to the plaintiff." Hardin v. Hayes, 957

F.2d 845, 848 (11th Cir.1992). Therefore, the "facts," as stated

below, may not, in reality, be the facts that would be established

at trial. See Rodgers v. Horsley, 39 F.3d 308, 309 (11th

Cir.1994); Swint v. City of Wadley, 5 F.3d 1435, 1439 (11th

Cir.1993), modified, 11 F.3d 1030 (11th Cir.1994), vacated in part

on other grounds, --- U.S. ----, 115 S.Ct. 1203, --- L.Ed. ----

(1995).

There are two groups of defendants in this case. The first

group consists of Clayton County Sheriff D.G. Lemacks, Clayton

County District Attorney Robert E. Keller, Clayton County Police

Chief Ronnie Clackum, and the Chairman of the Clayton County Board

of Commissioners, Dal F. Turner (hereinafter referred to together

as "the Group One Defendants"). The second group consists of law

enforcement agents present at the scene of the search: Ricky

McCain and George Randall Dewberry,1 officers with the Clayton

County Police Department; Don Colburn, an investigator with the

Clayton County District Attorney's Office; and Michael Wayne

Newton, David Noe, Samuel Smith and Randall Dewberry, all deputy

sheriffs with the Clayton County Sheriff's Department (hereinafter
 2

Colburn was the Special Agent in Charge of the CCNU. 

 3Plaintiff-Appellant Mattie Hartsfield is also an AfricanAmerican woman. 

 4Another officer followed to provide back-up surveillance

and to assist in the controlled drug buy. 

referred to together as "the Group Two Defendants"). All of the

Group Two Defendants, except for Smith, were also assigned to the

Clayton County Narcotics Unit ("CCNU").2

During the late afternoon of February 21, 1991, Deputy Sheriff

Mike Newton went with a confidential informant ("CI") to a

residence located at 5108 Middlebrooks Drive, Forest Park, Georgia;

the CI entered and purchased marijuana from a black female known as

Nora Grooms,3 while Newton waited outside in his vehicle. 4 Based

upon the foregoing, later that day, Newton obtained a search

warrant for the residence at 5108 Middlebrooks Drive.

The next day, February 22, 1991, at approximately 2:30 p.m.,

Newton erroneously led other law enforcement agents to 5128

Middlebrooks Drive to execute the search warrant, despite the fact

that the warrant in his possession designated the residence to be

searched as 5108 Middlebrooks Drive. None of the other officers

had seen the search warrant prior to entry.

After Newton forcibly opened the side door using a battering

ram, Defendant Officer Samuel Smith and his partner J.F. Watkins

entered the residence with weapons drawn and identified themselves

as officers executing a search warrant. Watkins discovered

Plaintiff-Appellant Mattie Hartsfield undressing in her bedroom,

pointed his weapon at her face, and escorted her to the den. After

they determined that no one else was present in the house, Smith
 5

Defendant Officer Ricky McCain remained outside in his

vehicle and never entered the residence. Members of the media

were apparently present because this raid was a part of a

publicized state-wide law enforcement effort know as "Operation

Crack Attack." 

 6It is unclear whether the dog was brought in after Mrs.

Hartsfield professed her lack of involvement with drugs. 

 7The duration of the search is in dispute; the record

strongly suggests that the search lasted no more than 15 minutes,

but Officer McCain testified that he was outside of the residence

for 30 minutes to an hour, which might indicate that the search

lasted longer. 

and Watkins holstered their weapons; approximately six other

officers, and at least one media representative, then entered the

residence.5

Upon questioning, Mattie Hartsfield insisted that no one had

purchased marijuana out of her house. Newton ordered that a

Clayton County drug dog be brought into the house; 6 the dog

"alerted" on several baseball caps contained in a cabinet in the

den. Mrs. Hartsfield explained that one of her sons had been

involved with "dope," but an inspection of the cabinet revealed no

contraband. Although the cabinet was the only property searched in

the house, the officers did walk through the house and visually

inspect the premises. When Defendant Officer David Noe finally

asked Mattie Hartsfield if she was Nora Grooms and whether there

were any drugs in the house, she responded in the negative and

stated that Grooms lived up the street. Noe then obtained the

search warrant from Newton and saw that the officers had entered

5128 Middlebrooks Drive instead of 5108 Middlebrooks Drive, as

specified on the warrant. The search, which lasted for at least

10-15 minutes, then concluded.7

 As Newton departed, he saw the
house on the corner, 5108 Middlebrooks Drive, and realized that he

had led the officers to the wrong address.

At approximately 6 p.m. that same day, Noe and McCain returned

to the Hartsfields' residence, apologized for the entry and offered

to pay for repairs to the damaged side door. The Hartsfields never

requested reimbursement, and the record suggests that the door has

not been repaired.

Evidence before the district court showed that the

Hartsfields' residence was distinguishable from Grooms's house.

5108 Middlebrooks was a corner house on a dead-end street, whereas

5128 Middlebrooks was further down the block; the two houses were

separated by at least one other residence. Further, one witness

testified that the Hartsfields' house differed in that it had a

fence around it, and that Grooms's house had junk cars and the like

strewn outside. Most important, it is uncontroverted that the

entry occurred during daylight hours and that the house numbers

were clearly marked. Moreover, there were no exigent circumstances

involved; on the contrary, the raid had been carefully staged and

the officers were accompanied by representatives of the media.

Mattie Hartsfield and her husband Leonard Hartsfield, Sr.

filed this lawsuit, alleging that Mattie Hartsfield's rights under

the Fourth, Fifth, Eighth and Fourteenth Amendments were violated

by the wrongful search of the house and her simultaneous restraint;

several state law claims were also asserted. The defendants moved

for, and the district court granted, summary judgment as follows:

(1) in favor of all defendants on the claims against them in their

official capacities; (2) to McCain and the Group One Defendants on
 8

The Group Two Defendants also filed a motion to dismiss on

the Eighth Amendment claim. 

the Fourth Amendment claim; (3) to everyone but Newton and

Dewberry on the Fifth Amendment claim; (4) to the Group One

Defendants on the Fourteenth Amendment claim; and (5) to McCain on

Plaintiffs' state law trespass claim. The district court denied

summary judgment without prejudice on the Eighth Amendment claim,

and granted Plaintiffs leave to amend their complaint to state

cognizable claims on certain counts. It also granted the remaining

defendants leave to refile their motion as to claims for which

summary judgment had been denied without prejudice.

Plaintiffs filed an amended complaint, and both groups of

defendants responded by again moving for summary judgment. 8

 The

district court granted all defendants' motions for summary judgment

on the Fourth, Fifth and Fourteenth Amendment claims; granted the

motion to dismiss on the Eighth Amendment claim; and dismissed the

state law claims without prejudice. This appeal followed.

II.

Appellants' brief challenges the rulings of the district court

as to the Group Two Defendants. It makes no mention of the Group

One Defendants, however, nor of any claimed error by the district

court in disposing of the claims against them. We note that

"[i]ssues that clearly are not designated in the initial brief

ordinarily are considered abandoned." Allstate Ins. Co. v. Swann,

27 F.3d 1539, 1542 (11th Cir.1994). We thus consider any potential

arguments on appeal as to the Group One Defendants to be abandoned,

with the exception of the district court's dismissal of the Eighth
 9

"In the posture of a motion for summary judgment, this

second issue itself has two subparts: first, whether the

applicable law was clearly established at the time of the

governmental action; and second, whether a genuine issue of fact

must be resolved to determine if the government official's

conduct violated clearly established law." Eubanks, 40 F.3d at

1160 (citing Courson v. McMillian, 939 F.2d 1479, 1487-88 (11th

Cir.1991)). 

 10Compare Courson v. McMillian, 939 F.2d 1479, 1497-98 (11th

Cir.1991) (for qualified immunity purposes, the law should be

from the Supreme Court, the Eleventh Circuit, or if necessary,

the highest court of the state in which the case arose) with

Greason v. Kemp, 891 F.2d 829, 833 (11th Cir.1990) ("[W]e look to

the law established by the Supreme Court, the courts of appeals,

Amendment claim, which arguably remains before us. See Love v.

Deal, 5 F.3d 1406, 1407 n. 1 (11th Cir.1993) (brief did not address

issue, and hence it was deemed abandoned); Greenbriar, Ltd. v.

City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989)

(failure to elaborate argument in brief resulted in abandonment of

issue).

III.

A.

 This court utilizes a two-part analysis for the defense of

qualified immunity. First, the defendant government official must

prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred. If the

defendant meets this burden, the plaintiff must then demonstrate

that the defendant violated clearly established law based upon

objective standards. See Jordan, 38 F.3d at 1564; Eubanks v.

Gerwen, 40 F.3d 1157, 1160 (11th Cir.1994).9

There is no doubt in the present case that the officers were

acting within their discretionary authority, so the sole issue is

whether their actions violated clearly established law.10
and the district courts.") and Leeks v. Cunningham, 997 F.2d

1330, 1333 (11th Cir.) ("[W]e consider the law originating in

this Circuit, as well as the Supreme Court, the courts of

appeals, and the district courts."), cert. denied, --- U.S. ----,

114 S.Ct. 609, 126 L.Ed.2d 573 (1993). 

Our en banc court recently emphasized the broad scope of

protection afforded by qualified immunity:

That qualified immunity protects government actors is the

usual rule; only in exceptional cases will government actors

have no shield against claims made against them in their

individual capacities.... Unless a government agent's act is

so obviously wrong, in the light of preexisting law, that only

a plainly incompetent officer or one who was knowingly

violating the law would have done such a thing, the government

actor has immunity from suit. Because qualified immunity

shields government actors in all but exceptional cases, courts

should think long and hard before stripping defendants of

immunity.

Lassiter v. Alabama A & M University, 28 F.3d 1146, 1149 (11th

Cir.1994) (en banc) (citations and footnotes omitted).

In Lassiter, we explained that for law to be clearly

established in the qualified immunity context, "pre-existing law

must dictate, that is truly compel (not just suggest or allow or

raise a question about), the conclusion for every like-situated,

reasonable government agent that what defendant is doing violates

federal law in the circumstances." Id. at 1150 (emphasis in

original).

When considering whether the law applicable to certain facts

is clearly established, the facts of cases relied upon as

precedent are important. The facts need not be the same as

the facts of the immediate case. But they do need to be

materially similar.... Public officials are not obligated to

be creative or imaginative in drawing analogies from

previously decided cases.

Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1575

(11th Cir.1992) (Edmondson, J., dissenting) (citation omitted),

approved en banc, 998 F.2d 923 (11th Cir.1993); see also Jordan,
38 F.3d at 1566 ("To be clearly established, the "contours' of an

asserted constitutional right "must be sufficiently clear that a

reasonable official would understand that what he is doing violates

that right.' ") (quoting Anderson v. Creighton, 483 U.S. 635, 640,

107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)); Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993) ("If case law, in

factual terms, has not staked out a bright line, qualified immunity

almost always protects the defendants."), modified on other

grounds, 14 F.3d 583 (11th Cir.1994).

Moreover, plaintiffs cannot discharge their burden simply by

referring to general rules or abstract rights. Lassiter, 28 F.3d

at 1150; Post, 7 F.3d at 1557 (plaintiff cannot rely on "general

conclusory allegations" or "broad legal truisms") (citing Barts v.

Joyner, 865 F.2d 1187, 1190 (11th Cir.1989), cert. denied, 493 U.S.

831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989)).

B.

At the time of the incident in this case it was

well-established as "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, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); see also United

States v. Burgos, 720 F.2d 1520, 1525 (11th Cir.1983) (quoting

Payton ); United States v. Satterfield, 743 F.2d 827, 843 (11th

Cir.1984) ("Although a warrantless search and seizure in a home is

presumed to be unreasonable ... courts will uphold searches of

homes based on both probable cause and exigent circumstances."),

cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985)
 11Cf. United States v. Campbell, 920 F.2d 793, 795 (11th

Cir.1991) ("A search without a warrant based on probable cause is

illegal, unless the government can show that it falls into one of

those limited exceptions recognized by law."); United States v.

Alexander, 835 F.2d 1406, 1408 (11th Cir.1988) ("The basic

premise of search and seizure doctrine is that searches

undertaken without a warrant issued upon probable cause are "per

se unreasonable under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.' ") 

(quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507,

514, 19 L.Ed.2d 576 (1967)) (automobile search context). 

 12In Garrison, the officer: (1) went to the premises to see

if it matched the description given by an informant; (2) checked

with the Baltimore Gas and Electric Company to ascertain in whose

name the third floor apartment was listed; and (3) checked with

the Baltimore Police Department to make sure that the description

and address of the suspect matched the information provided by

the informant. Garrison, 480 U.S. at 81-82, 85-86 n. 10, 107

S.Ct. at 1015, 1017 n. 10. Furthermore, the police in Garrison

encountered both Harold Garrison and the original suspect,

Lawrence McWebb, at the building and neither of them indicated to

police that there were two apartments on the same floor. Id. at

(citation to Payton omitted).11

It is undisputed that the officers did not have a search

warrant for the Hartsfields' residence when they entered the house.

Nor did they have probable cause to believe that a crime was taking

place at the Hartsfields' house. As such, the officers should have

known that entry risked violating the residents' constitutional

rights. Nevertheless, in Maryland v. Garrison, 480 U.S. 79, 107

S.Ct. 1013, 94 L.Ed.2d 72 (1987), the Supreme Court held that the

accidental search of the wrong apartment did not violate the Fourth

Amendment where police mistakenly thought that there was only one

apartment on the particular floor of the building, because "the

officers' conduct was consistent with a reasonable effort to

ascertain and identify the place intended to be searched within the

meaning of the Fourth Amendment." Id. at 88-89, 107 S.Ct. at

1019.12
81-82 n. 2, 107 S.Ct. at 1015 n. 2. 

 At the time of the officers' entry into the Hartsfields'

home, it was thus clearly established law that, absent probable

cause and exigent circumstances, a warrantless search of a

residence violates the Fourth Amendment, unless the officers engage

in reasonable efforts to avoid error.

 Newton had been to the proper residence the day before the

search and had procured the search warrant based upon his own

observations supervising a drug buy at 5108 Middlebrooks. Although

Newton had the warrant in his possession, he did not check to make

sure that he was leading the other officers to the correct address,

let alone perform any precautionary measures such as those

performed by the officers in Garrison. As it is uncontroverted

that the numbers on the houses are clearly marked, and that the

raid took place during daylight hours, simply checking the warrant

would have avoided the mistaken entry. Moreover, evidence before

the court showed that the houses were located on different parts of

the street, separated by at least one other residence, and that

their appearances were distinguishable.

Because Newton did nothing to make sure that he was leading

the other officers to the correct residence, we conclude that the

district court erred in holding that he was protected by qualified

immunity. Although we recognize "the need to allow some latitude

for honest mistakes that are made by officers in the dangerous and

difficult process of making arrests and executing search warrants,"

Garrison, 480 U.S. at 87, 107 S.Ct. at 1018, Newton's actions in

this case were simply not "consistent with a reasonable effort to
 13The Eleventh Circuit, in the en banc decision Bonner v.

City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as

precedent decisions of the former Fifth Circuit rendered prior to

October 1, 1981. 

 14Although Duncan is not directly on point, it is

informative. In Duncan, police obtained a warrant to search

Flavio Benavidez's residence for heroin. The warrant incorrectly

directed the police to Appellants' apartment. Law enforcement

officers broke down the rear door, entered with guns drawn, and

broke down the bedroom doors. Male and female occupants were

forced to stand nude while the police surveyed the apartment. 

The officers were not sure that they were in the wrong apartment

until ten minutes after their entry; the apartment was left in

disarray, and personal property was destroyed. The former Fifth

Circuit held that "[l]aw enforcement officers having a good faith

and reasonable belief in the validity of the search warrant may

nonetheless incur liability under 42 U.S.C. § 1983 ... if the

warrant is executed in an unreasonable manner.... A reasonable

jury could have held that appellees' execution of the search

warrant was malicious, arbitrary and capricious." Duncan, 592

ascertain and identify the place intended to be searched" as

dictated by Garrison. See id. at 88-89, 107 S.Ct. at 1019.

Although the Hartsfields have failed to direct us to an

identical case in which an officer's actions were held to be

unconstitutional, to be clearly established "does not mean that a

court must have previously found the very action in question to be

unlawful, but it does mean that "in light of preexisting law the

unlawfulness must be apparent.' " Jordan, 38 F.3d at 1566 (quoting

Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. at 3039). Given

the per se rule against warrantless searches, and the Garrison

court's description of reasonable police efforts, Newton should

have known that his behavior risked violating the law, due to the

unreasonable manner in which he executed the search warrant. Cf.

Duncan v. Barnes, 592 F.2d 1336, 1337-38 (5th Cir.1979)13 (law

enforcement officers executing warrant that contained the wrong

address could incur liability under § 1983);14 Wanger v. Bonner,
F.2d at 1338 (citations omitted). 

 15Wanger v. Bonner was decided prior to the Supreme Court's

decision in Steagald v. United States, 451 U.S. 204, 101 S.Ct.

1642, 68 L.Ed.2d 38 (1981), in which the Court held that a search

warrant is required to enter the home of a third party to arrest

a suspect named in an arrest warrant. 

 16After a review of the record, we also hold that the

district court did not err by granting summary judgment on

Appellants' Fifth and Fourteenth Amendment claims, and by

dismissing their Eighth Amendment claim. 

621 F.2d 675, 681-82 (5th Cir.1980) (search of residence in middle

of the night for fugitive from misdemeanor traffic charge, based

solely on address in arrest warrant—which had twenty to twenty-five

percent chance of being incorrect and which long-time owner of the

premises said was wrong—was not reasonable in absence of any

attempted verification of address or prior attempt to serve at more

reasonable hour, and thus supported § 1983 action).15 Accordingly,

we REVERSE the district court's grant of summary judgment in favor

of Newton on the basis of qualified immunity on the Hartsfields'

Fourth Amendment claim.

C.

 As for the other Group Two Defendants, nothing in the record

indicates that these officers acted unreasonably in following

Newton's lead, or that they knew or should have known that their

conduct might result in a violation of the Hartsfields' Fourth

Amendment rights. Consequently, the district court did not err in

granting summary judgment on the basis of qualified immunity in

their favor on the Hartsfields' Fourth Amendment claim.16

AFFIRMED in part, REVERSED in part, and REMANDED.