United States Court of Appeals

For the First Circuit

No. 07-1623

CHRISTOPHER DEMAYO,

Plaintiff, Appellant,

v.

ROBERT NUGENT and JEFFREY LUGAS, 

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Boudin, Chief Circuit Judge,

Campbell and Stahl, Senior Circuit Judges.

Christopher DeMayo, pro se, was on brief for appellant.

Brian J. Rogal was on brief for appellees.

February 22, 2008
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STAHL, Senior Circuit Judge. Plaintiff-appellant

Christopher DeMayo appeals from a district court's order denying

his motion for partial judgment on the pleadings and granting a

dismissal on the basis of qualified immunity in favor of

Massachusetts State Police (State Police) Troopers Robert Nugent

and Jeffrey Lugas, Defendant-appellees. DeMayo's complaint alleged

that Nugent and Lugas violated his right to be free from

unreasonable searches under the Fourth Amendment of the United

States Constitution. See Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). Although the district court determined that

Nugent and Lugas infringed DeMayo's constitutional rights by

entering his home without a search warrant or exigent

circumstances, it nevertheless dismissed DeMayo's claims on the

basis of qualified immunity. Because we hold that the district

court erred in its analysis of whether the right that Nugent and

Lugas violated was clearly established, we reverse the decision

below, render partial judgment in favor of DeMayo, and remand for

further proceedings consistent with this opinion.

I. BACKGROUND

In reviewing the district court's decision to deny

judgment on the pleadings in favor of DeMayo, we review the factual

allegations in the light most favorable to Nugent and Lugas, the

non-moving parties. Aponte-Torres v. Univ. of P.R., 445 F.3d 50,

55 (1st Cir. 2006). Conversely, in reviewing the district court's
Nugent and Lugas never actually filed an independent motion 1

to dismiss, merely requesting dismissal in their response to

DeMayo's motion under Rule 12(c). Nevertheless, the standard of

review remains unchanged. See Gonzalez-Gonzalez v. United States,

257 F.3d 31, 37 (1st Cir. 2001).

The court relies heavily upon two documents attached to 2

DeMayo's pleadings, namely Nugent's Report of Investigation and

Nugent's Application for Search Warrant and its corresponding

affidavit. See Fed. R. Civ. P. 10(c).

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order dismissing DeMayo's claims, we examine the record in the

light most favorable to DeMayo, the plaintiff. See Rodriguez-Ortiz

v. Margo Caribe, Inc., 490 F.3d 92, 94 (1st Cir. 2007); Pagan v.

Calderon, 448 F.3d 16, 30-31 (1st Cir. 2006). We conduct our 1

review of each of these questions de novo. See Local 791, United

Food & Commercial Workers Union v. Shaw's Supermarkets, Inc., 507

F.3d 43, 46 (1st Cir. 2007) (judgment on the pleadings); Pagan, 448

F.3d at 30 (dismissal). The salient facts, set forth below, are

taken from the parties' pleadings. See Aponte-Torres, 445 F.3d at 2

54-55 ("A Rule 12(c) motion, unlike a Rule 12(b)(6) motion,

implicates the pleadings as a whole.")

On May 6, 2004, at around 8:00 a.m., a United Parcel

Service (UPS) employee notified the State Police that a suspicious

package had arrived at UPS's Lynnfield facility. The package was

addressed to an individual named "Debbie Moore," was entrusted to

the care of "Chris DeMayo," and was sent by "Susan Kelty." Shortly

thereafter, Nugent, in his capacity as a member of the Drug

Enforcement Administration (DEA) Task Force Group #3, traveled to
For clarity, we will continue to refer to Gary DeMayo by his 3

first and last names.

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the UPS facility to investigate the report. There he was joined by

other officers. Nugent indicated that his suspicions were raised

by the box's heavy taping, its California return address, and the

lack of a requirement for a signature. At approximately 9:15 a.m.,

a drug-sniffing dog under the supervision of the State Police

signaled the presence of narcotics in the box. Later, at 9:55

a.m., DEA Special Agent Robert Donovan, acting in an undercover

capacity, called Kelty to confirm that she wished UPS to deliver

the package. Kelty responded that it was a "very important

package" for her terminally ill sister, whose condition

necessitated delivery rather than pickup.

At approximately 11:20 a.m., Donovan, disguised as a UPS

employee and accompanied by a number of other task force officers,

including Nugent and Lugas, conducted a controlled delivery to

DeMayo's residence. Gary DeMayo, the plaintiff's father, opened 3

the door, remaining in the threshold. Indicating that he could

accept the package for Chris DeMayo, he began to sign his name when

provided with a signature sheet. While Gary DeMayo was still in

the process of signing for the package, Donovan gave a

"prearranged" signal for the arrest team to advance to the home.

At this point, Gary DeMayo had only signed his first name. Nugent

and Lugas brushed by Gary DeMayo, entered the residence, and then
Here, the parties disagree; DeMayo maintains that the search 4

warrant was not properly signed.

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proceeded to conduct a brief protective sweep of the house lasting

approximately fifteen to twenty seconds. During this sweep, Lugas

encountered a "frail looking woman," later identified as Debbie

Moore, DeMayo's mother and the intended recipient of the package,

"exiting a bathroom on the second floor of the house." 

When confronted by the now-revealed officers, Gary DeMayo

refused to identify himself. He informed the officers that he had

no identification on-hand, as he was only residing at the home

temporarily. He refused to accept the package and stated that he

would not sign for it, despite his earlier acquiescence. Nugent's

report indicates that, after the officers' entry into the home,

Gary DeMayo became "belligerent and uncooperative." Ultimately,

the officers issued Gary DeMayo a criminal summons and seized the

package after indicating their intent to obtain a search warrant

for it. According to Nugent and Lugas, Nugent subsequently

obtained a warrant to search the package, which was then revealed 4

to be conspicuously devoid of narcotics, containing only sandals,

two packages of underwear, two boxes of cold compresses for

injuries, a figurine, a white visor, and women's shirts wrapped in

a towel.

Plaintiff brought suit against Nugent and Lugas, as well

as DEA Group Supervisor Michael McCormick and the State Police, in
DeMayo originally brought his claims without knowledge that 5

Nugent and Lugas were part of a DEA task force, rendering 42 U.S.C.

§ 1983 the appropriate avenue for relief, although his complaint

does not explicitly indicate whether the action lay under § 1983 or

Bivens. The parties and the district court, however, all treated

the suit as lying under Bivens after the officers' roles were

revealed.

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Massachusetts Superior Court in Middlesex County on May 5, 2006,

alleging the violation of his constitutional rights as well as

various state law claims. After considerable procedural 5

wrangling, the case was removed to the United States District Court

for the District of Massachusetts because Michael McCormick was a

federal officer and Nugent and Lugas were acting as federal agents

as part of the DEA task force. Eventually, all parties other than

Nugent and Lugas were dismissed from the case, and the only

remaining claim against them lies under Bivens.

On November 17, 2006, DeMayo moved for partial judgment

on the pleadings as to liability against Nugent and Lugas. They

filed a response on December 12, 2006, requesting dismissal.

Despite holding that Nugent and Lugas violated DeMayo's

constitutional rights under the Fourth Amendment, the district

court denied DeMayo's motion and granted dismissal in favor of the

defendants on the basis of qualified immunity. 

II. ANALYSIS

A. Constitutional Violation

The Bivens doctrine allows plaintiffs to vindicate

certain constitutionally protected rights through a private cause
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of action for damages against federal officials in their individual

capacities. See McCloskey v. Mueller, 446 F.3d 262, 271-72 (1st

Cir. 2006). A claimant who seeks relief under Bivens must prove

the violation of a constitutional right by a federal agent acting

under color of federal law. See 403 U.S. at 397; Redondo-Borges v.

U.S. Dep't of Housing & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005).

The parties agree that, at the time of the search, Nugent and Lugas

were acting as federal agents under color of federal law. Nugent

and Lugas, however, contest the district court's determination that

their intrusion into DeMayo's home constituted a violation of his

constitutional rights.

We begin with the "basic rule . . . that, absent consent

or exigency, a warrantless search of the home is presumptively

unconstitutional" under the Fourth Amendment. Groh v. Ramirez, 540

U.S. 551, 564 (2004). "To show exigent circumstances, the police

must reasonably believe that 'there is such a compelling necessity

for immediate action as will not brook the delay of obtaining a

warrant.'" United States v. Samboy, 433 F.3d 154, 158 (1st Cir.

2005) (quoting Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st

Cir. 1999)). "Proof of exigent circumstances should be supported

by particularized, case-specific facts, not simply generalized

suppositions about the behavior of a particular class of criminal

suspects." Id. (citation omitted). An individual may vindicate a
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proven violation of his or her right to be free from unreasonable

searches through a Bivens action. See 403 U.S. at 397.

First, we note that, as the district court recognized,

the primary factual predicate for the alleged constitutional

violation occurred when the officers first breached the threshold

of DeMayo's home. In their briefing to the district court, Nugent

and Lugas ignored the alleged illegal entry, focusing instead on

justifying the protective sweep that was conducted once the

officers had already entered the home. The defendants' efforts to

justify the subsequent protective sweep miss the mark and, at best,

conflate two distinct concepts. Here, because the officers

indisputably lacked a warrant and no consent to search was given,

Nugent and Lugas were required to demonstrate the presence of an

exigency to justify their intrusion into the home.

On appeal, Nugent and Lugas offer three different

explanations for their entry. All three of these arguments are

waived because, as explained above, the defendants defended their

actions in the district court by attempting to justify a protective

sweep, not the initial entry itself. These theories are factually

and analytically distinct and, thus, are not interchangeable. See,

e.g., United States v. Martins, 413 F.3d 139, 149-50 (1st Cir.

2005) (analyzing the propriety of a protective sweep following

lawful entry due to exigent circumstances). Nugent and Lugas may

not now switch their theories on appeal. See Curran v. Cousins,
Nugent and Lugas maintain that the timeline with respect to 6

this issue is inconclusive. We see no such uncertainty in the

narrative sequence; Nugent's own investigative report clearly

reveals that Gary DeMayo became "uncooperative and belligerent"

only after the officers entered the home. The unremarkable fact

that each reported event is not time-stamped does not suggest any

ambiguity.

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509 F.3d 36, 47 n.6 (1st Cir. 2007); see also Higgins v. New

Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999)

(explaining that "nonmovant[s may not] switch horses in

midstream"). 

Nevertheless, like the district court, we conclude that,

even if not waived, the defendants' attempt to show exigent

circumstances is without merit. For coherency, we address each

different contention in turn. First, Nugent and Lugas claim that

Gary DeMayo's belligerence raised their suspicions. As DeMayo

points out, however, Nugent's own DEA report shows that DeMayo's

father became belligerent only after the officers entered the

home. Whatever insight might be gleaned from his behavior, it 6

cannot serve as an ex post facto basis for the officers' initial

intrusion into the home.

Second, Nugent and Lugas assert in their brief that

"they" heard a toilet flush, which they purportedly presumed meant

that someone in the home was attempting to dispose of narcotics,

having been alerted to the presence of law enforcement officers.

Despite the fact that there is no record evidence of any toilet

flushing, Nugent and Lugas urge that this fact can be "inferred"
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from the record on the basis of Lugas's brief encounter with a

woman exiting a bathroom during his protective sweep of the house.

As an initial matter, this argument was never presented to the

district court in any form and, consequently, has been waived. See

Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 218 (1st

Cir. 2006). Furthermore, the unsupported supposition suggested by

the defendants is far too attenuated from the record evidence, even

given the judgment on the pleadings context, and is more akin to

rank speculation than a reasonable inference. See MarreroGutierrez v. Molina, 491 F.3d 1, 10 (1st Cir. 2007); Marlon v. W.

New England Coll., 124 F. App'x 15, 16 (1st Cir. 2005) (per curiam)

(unpublished opinion).

Finally, Nugent and Lugas maintain that the officers

harbored legitimate concerns regarding their safety and the

preservation of evidence. We have recognized that such issues may,

under certain circumstances, constitute exigencies sufficient to

justify a warrantless entry into a home. See Samboy, 433 F.3d at

158-59 (discussing the need to protect evidence from imminent

destruction); Hegarty v. Somerset County, 53 F.3d 1367, 1378-79

(1st Cir. 1995) (finding exigent circumstances where officers were

positioned in vulnerable locations after having cornered a

dangerous suspect). Moreover, we do not impose an unforeseeability

requirement upon law enforcement officers seeking to avail

themselves of the exigent circumstances exception. See Samboy, 433
The parties disagree about whether the officers had 7

sufficient time to obtain a warrant. Although we base our ruling

on other grounds, we note that the package was delivered more than

two hours after the police dog alerted to the package. Moreover,

it is unclear why Donovan could not simply have told Kelty that the

package, which was already delinquent, would be delivered later in

the day, permitting even more time for the police to obtain a

warrant. It would be counterintuitive to permit government

officials to rely on exigent circumstances when they have arranged

for an unnecessarily early delivery time that artificially

precludes the possibility of obtaining a warrant. 

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F.3d at 160. Nevertheless, police officers may not manufacture an

exigency or unreasonably and deliberately delay obtaining a

warrant. See id.; Martins, 413 F.3d at 148-49.7

On these facts, it is evident that the officers did not

act upon particularized, case-specific facts. Indeed, the record

shows that Nugent and Lugas entered DeMayo's home based on a

prearranged signal given the moment that Gary DeMayo began to sign

for the package. The record is utterly devoid of any evidence

justifying a warrantless entry at the juncture when the entry

occurred. The contents of the package were not in immediate danger

of disposal and no threat had been posed to the officers. Holding

that exigent circumstances justified Nugent and Lugas's intrusion

into DeMayo's home would be tantamount to creating a blanket rule

permitting warrantless entry into a home in the controlled delivery

context, at least when there is arguably not time to obtain a

warrant. To the contrary, we have consistently held that officers

must be able to point to specific facts in the record to justify a

warrantless entry based on exigent circumstances, even in the
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controlled delivery context. See, e.g., Samboy, 433 F.3d at 158-

59. 

In reaching this conclusion, we do not seek to impose any

extraordinary requirements upon law enforcement. Under even

slightly different facts, the result in this case might well be

different. See United States v. St. Pierre, 488 F.3d 76, 79 (1st

Cir. 2007) (recognizing exigent circumstances justifying

warrantless entry of drug dealer's apartment where drug courier's

failure to return to apartment might alert drug dealer of law

enforcement); Hegarty, 53 F.3d at 1379 (finding exigent

circumstances where suspect had exhibited violent, irrational

behavior and demonstrated antagonism toward law enforcement

personnel). Here, the complete absence of any (much less adequate)

case-specific evidence justifying an exigency compels this outcome.

Accordingly, DeMayo has established, on the basis of the

pleadings, the elements of a cause of action under Bivens. Our

inquiry does not end here, however, because Nugent and Lugas have

asserted the affirmative defense of qualified immunity.

B. Qualified Immunity

Although the district court found that Nugent and Lugas

infringed DeMayo's rights under the Fourth Amendment, it

nevertheless dismissed DeMayo's claims on the grounds of qualified

immunity. "Qualified immunity is intended to shield public

officials 'from civil damages liability as long as their actions
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could reasonably have been thought consistent with the rights they

are alleged to have violated.'" Fabiano v. Hopkins, 352 F.3d 447,

452-53 (1st Cir. 2003) (quoting Anderson v. Creighton, 483 U.S.

635, 638 (1987)). In assessing a claim of qualified immunity, we

conduct three separate inquiries:

(i) whether the plaintiff's allegations, if

true, establish a constitutional violation;

(ii) whether the constitutional right at issue

was clearly established at the time of the

putative violation; and (iii) whether a

reasonable officer, situated similarly to the

defendant, would have understood the

challenged act or omission to contravene the

discerned constitutional right.

Burke v. Town of Walpole, 405 F.3d 66, 77 (1st Cir. 2005) (quoting

Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004)) (internal

quotation marks omitted). As discussed above, the pleadings

establish the violation of DeMayo's right to be free from

unreasonable searches under the Fourth Amendment.

Likewise, we resolve the second prong, which requires

that the constitutional rights at issue be clearly established, in

favor of DeMayo. Under this prong, "[w]e consider whether existing

case law gave the defendants 'fair warning that their conduct

violated the plaintiff's constitutional rights.'" Jennings v.

Jones, 499 F.3d 2, 16 (1st Cir. 2007) (quoting Suboh v. Dist.

Attorney's Office of Suffolk, 298 F.3d 81, 93 (1st Cir. 2002)).

"[T]he right allegedly violated must be defined at the appropriate

level of specificity before a court can determine if it was clearly
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established." Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 65

(1st Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999))

(internal quotation marks omitted). This inquiry requires us to

examine the specific factual context in question to see whether the

law was sufficiently clear to place an officer on notice of the

illegality of his conduct at the time of the incident. See id. 

We do not, however, require that "the facts of prior

cases [providing notice] . . . be materially similar . . . ." Id.

at 65-66. "[G]eneral statements of the law are not inherently

incapable of giving fair and clear warning, and . . . 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[.]'" United States v. Lanier, 520 U.S. 259, 271

(1997) (third alteration in original) (quoting Anderson, 483 U.S.

at 640). Thus, the "second prong does not require that there have

been another case 'exactly on all fours with the facts of [the

instant] case.'" Riverdale Mills, 392 F.3d at 66 (quoting Suboh,

298 F.3d at 94); see also Jennings, 499 F.3d at 17 (holding that

the unlawfulness of conduct that violates core protections of the

Fourth Amendment should be readily apparent to officials regardless

of absence of factually similar cases); Wilson v. City of Boston,

421 F.3d 45, 57 (1st Cir. 2005) (holding that law was clearly
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established despite the plaintiff's failure to "identif[y] any

cases in which this issue has arisen in [this] context . . .").

The district court essentially mandated that, to avoid

dismissal, DeMayo find a case involving a violation of an

individual's constitutional rights under the exact same set of

circumstances. The proper inquiry is more abstract: whether

Nugent and Lugas were on notice that "police officers need either

a warrant or probable cause plus exigent circumstances in order to

make a lawful entry into a home." Kirk v. Lousiana, 536 U.S. 635,

638 (2002); see also Payton v. New York, 445 U.S. 573, 590 (1980)

("[T]he 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."). 

In our view, the "firm line" drawn by Kirk and Payton

provided Nugent and Lugas with sufficient notice that their entry

into DeMayo's home was in violation of clearly established law.

The defendants contend that the doctrine of exigent circumstances

is an expanding area of law, the contours of which are not clearly

established. The fact that the doctrine of exigent circumstances

is evolving, however, does not necessarily mean that every

situation implicating the subject touches upon the supposed

nebulous borderline of acceptable conduct. Regardless of whether

the outer boundaries of the doctrine are clearly defined, the

defendants' conduct fell squarely outside the realm of legitimate
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uncertainty. See Lovelace v. Lee, 472 F.3d 174, 198 (4th Cir.

2006) (explaining that qualified immunity was unavailable because

"[a]lthough the outer boundaries of [the relevant law] may have

been uncharted at the time, its core protections were not"); Suboh,

298 F.3d at 97 (reasoning that "[w]hatever the exact contours of

the right [in question], this case falls well within the area of

clarity") (internal citation omitted). As explained above, the

record is utterly bereft of specific facts that could have

justified the officers' entry. Thus, without disputing the

premise, it is a non sequitur for Nugent and Lugas to argue that

because the precise quantum or nature of evidence that gives rise

to exigent circumstances is not fully fleshed out in the case law,

they are entitled to qualified immunity. Law enforcement officers

may not violate constitutional rights, then expect qualified

immunity when a court refuses to craft an unprecedented exception

to a clearly established rule of law.

Finally, we turn to the third prong of the qualified

immunity inquiry. We must determine whether an objectively

reasonable official, in the same position as Nugent and Lugas,

would have believed his actions violated DeMayo's clearly

established rights under the Fourth Amendment. See Riverdale

Mills, 392 F.3d at 61. In this situation, there were no factual

ambiguities or close calls that would render the defendants'

conduct objectively reasonable. See id. Furthermore, the
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circumstances under which Nugent and Lugas entered the home cannot

be characterized as "tense, uncertain, and rapidly evolving." See

Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (quoting Graham

v. Connor, 490 U.S. 386, 397 (1989)) (internal quotation marks

omitted). To the contrary, the officers acted upon a prearranged

signal given while events were proceeding according to plan, before

even the inception of the passive, non-violent "belligerence"

offered by Gary DeMayo. Moreover, the "firm line" prohibiting

warrantless entries absent exigent circumstances should have made

application of the controlling legal standard simple. See

Riverdale Mills, 392 F.3d at 61.

Accordingly, the doctrine of qualified immunity does not

shield Nugent and Lugas from liability.

C. Judgment on the Pleadings

Nugent and Lugas argue that, even if the district court

erred in dismissing this case, granting partial judgment in favor

of DeMayo is inappropriate because Nugent and Lugas "have not yet

been called upon, or required, to submit evidence that would

support their actions." This contention ignores the nature of a

motion for judgment on the pleadings under Rule 12(c). If Nugent

and Lugas wished to present evidence of additional facts that might

refute or undermine DeMayo's pleadings, the place to do so was in

their response to his motion. At that point, the proper course for

the district court would have been to convert the motion into one
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for summary judgment. See Fed. R. Civ. P. 12(d) ("If, on motion

under . . . [Rule] 12(c), matters outside the pleadings are

presented to and not excluded by the court, this motion must be

treated as one for summary judgment . . . ."). Having failed to

present any such evidence, by affidavit or otherwise, Nugent and

Lugas may not now seek a second bite at the apple when they have

not availed themselves of the procedures provided to them by the

Rules. The purview of Rule 12(c) would be nugatory if litigants

could simply object to the procedure, with vague intimations of

unspecified factual disagreements, to defeat a motion for judgment

on the pleadings without presenting any evidence to suggest that

the opposing party is not entitled to relief.

Accordingly, DeMayo is entitled to partial summary

judgment on the pleadings.

III. CONCLUSION

For the foregoing reasons, we reverse the decision of the

district court. We render partial judgment on the pleadings in

favor of DeMayo on his claims against Nugent and Lugas and remand

for further proceedings consistent with this opinion.

Reversed and remanded.