United States Court of Appeals

For the Eighth Circuit

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No. 17-1058

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Estate of Leon Walker, Jr.; Wanda Jean Millbrook; Correll Taylor Millbrook;

Victor Wayne Millbrooks, Jr.

lllllllllllllllllllll Plaintiffs - Appellees

v.

Building Inspector Hershell Wallace, in his individual capacity

lllllllllllllllllllll Defendant - Appellant

Detective Ronald E. Vaughn, a St. Louis Metropolitan Police Department police

officer in his individual capacity; City of St. Louis, Missouri

lllllllllllllllllllll Defendants

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: December 13, 2017

 Filed: February 8, 2018 

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Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.

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ARNOLD, Circuit Judge.
One morning, a SWAT team raided a St. Louis house in which the plaintiffs

lived to execute a search warrant. According to the warrant affidavit, a detective

suspected that the house contained heroin, illegal firearms, and drug-trafficking

paraphernalia. The team knocked on the door, yelled "police," and quickly began

striking the door with a battering ram. The team also tossed a "flash bang device"

through a window and into the house, and after gaining entry, the team handcuffed

the residents who were present and brought them into a front room. The search turned

up marijuana, some drug paraphernalia, and three firearms, which the plaintiffs'

attorney characterized as some old firearms and some personal-use marijuana.

The detective then called for a building inspector to inspect the house under a

city program called "Project 87." See Saint Louis, Mo., Code of Ordinances ch.

25.32.020, § 104.6. Under that program, police notify a building inspector of

properties that constitute a "nuisance," which is defined as a code violation that "if

not promptly corrected will constitute a fire hazard or a serious threat to the life,

health orsafety of the occupants of the building, structure, or portion thereof in which

the violations occur." If the owner or occupant of the building refuses to permit a

building inspection, the building inspector must immediately condemn the building

and issue an order to vacate, and if the owners or occupants refuse to leave, the police

must immediately remove them. The detective testified that it was police-department

policy to request a Project 87 inspection routinely after a search warrant was

executed. He did not identify any potential "nuisance" before he requested a Project

87 inspection in this case.

Building inspector Hershell Wallace arrived after receiving the inspection

referral. He testified that he did not notice any potential building-code violations

when he arrived except for the window that the police themselves had just broken. He

approached one of the residents, 29-year-old Victor Millbrooks, and asked him to

sign a consent-to-search form. At this point the parties' accounts begin to diverge, and

since we are reviewing an order denying Wallace's motion for summary judgment, we

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construe the facts in a light most favorable to the house's residents. See Aulick v.

Skybridge Ams., Inc., 860 F.3d 613, 620 (8th Cir. 2017). According to Millbrooks,

he was handcuffed for no more than ninety minutes while the SWAT team searched

the house, and the police uncuffed him only to sign the consent-to-search form and

to use the restroom. Millbrooks testified that Wallace "demanded" that Millbrooks

sign the consent-to-search form by saying that "[b]asically if you don't sign this, I

guess the house . . . forecloses or something was going to happen with the house. We

would get put out, something like that," so "it wasn't like I ha[d] an option." He also

testified that no one directed any threats toward him. Millbrooksthen signed the form

and Wallace conducted the inspection, which turned up only minor violations.

When the residents of the house sued Wallace under 42 U.S.C. § 1983,

claiming that he unreasonably searched the house in violation of the Fourth

Amendment, Wallace moved for summary judgment on the ground that qualified

immunity protected him from suit. After the district court denied the motion, Wallace

filed this interlocutory appeal. Because we conclude that Wallace did not violate

clearly established law, we reverse and remand.

We first consider our jurisdiction to review this interlocutory appeal. The

plaintiffs have moved to dismiss the appeal because, they argue, Wallace'srequestfor

qualified immunity was based on evidence insufficiency, or at least the district court

viewed it that way when it denied the motion. It is true that, though "[t]he pretrial

denial of qualified immunity is an appealable final order to the extent it turns on an

issue of law," Jackson v. Gutzmer, 866 F.3d 969, 975 (8th Cir. 2017), we do not have

jurisdiction to the extent that the denial turns on genuine issues of material fact. New

v. Denver, 787 F.3d 895, 899 (8th Cir. 2015). The district court did indeed mention

that "disputes of fact remain regarding whether Victor voluntarily consented to the

inspection," and we have said that when the appeal from the denial of qualified

immunity turns on whether the plaintiff consented to a search, which is a factually

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intensive inquiry, we lack jurisdiction. See Pace v. City of Des Moines, 201 F.3d

1050, 1053 (8th Cir. 2000).

We conclude nonetheless that we have jurisdiction. Wallace's briefs and oral

argument make clear that he is challenging whether he violated clearly established

law when he inspected the plaintiffs' house after receiving Millbrooks's signature on

a consent-to-search form. Whether certain actions violate clearly established law is

the archetypal question oflaw that isreviewable on interlocutory appeal. See Johnson

v. Jones, 515 U.S. 304, 318 (1995). We have said that the typical "appealable issue

is whether the federal right allegedly infringed was 'clearly established.'" See White

v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008). This is precisely what Wallace asks

us to review. The way in which the district court resolved the motion does not

necessarily govern whether we have jurisdiction. See New, 787 F.3d at 899–901.

Where the appellant does not challenge that factual disputes exist but rather whether,

even if the facts are construed in a light most favorable to the appellees, he violated

a clearly established right, we have jurisdiction over the interlocutory appeal. We

therefore turn to a consideration of the merits.

An individual defendant is entitled to qualified immunity if his conduct does

not violate clearly established constitutional rights of which a reasonable person

would have known. White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam). To be

clearly established, preexisting law must make the unlawfulness of the officials'

conduct apparent so that they have "fair and clear warning" they are violating the

constitution; qualified immunity therefore protects "all but the plainly incompetent

or those who knowingly violate the law." Id. at 551–52. Because qualified immunity

protects officials who make bad guesses in gray areas, Littrell v. Franklin, 388 F.3d

578, 582 (8th Cir. 2004), it gives them breathing room to make reasonable but

mistaken judgments. Blazek v. City of Iowa City, 761 F.3d 920, 922 (8th Cir. 2014).

The plaintiffs have the burden of showing that the law was clearly established. Hess

v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013).

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The district court denied Wallace qualified immunity because, if the jury

believed the plaintiffs' version of the facts, then the evidence "could show that the

consent was not voluntary." True, but that is not the correct inquiry. The correct

inquiry is whether, even if we construe the facts in a light most favorable to the

plaintiffs, a reasonable official in Wallace's position would have known that he was

violating the constitution when he searched the plaintiffs' house after receiving signed

consent to do so in the particular circumstances. We believe that Wallace, at worst,

made a bad guess in a gray area of the law—but the law gave him the breathing room

to make such a guess.

First, determining whether consent is voluntary requires a highly particular

look at all the relevant circumstances. See United States v. Comstock, 531 F.3d 667,

676 (8th Cir. 2008). In Comstock we identified no fewer than eleven non-exclusive

considerations that can bear on whether consent was voluntary. See id. at 676–77.

Since questions of consent necessarily turn on the particular facts of a case, it may be

hard to show that prior decisions should have put Wallace on notice that his search

under the circumstances was unconstitutional or that every reasonable official in his

position would have understood that he was violating a constitutional right. See

Pauly, 137 S. Ct. at 552. We do not mean that officials are always entitled to qualified

immunity when dealing with questions of consent; it is easy to imagine facts that

would alert a reasonable person that consent was not voluntarily given. We mean only

to emphasize that officialsshould be given some leeway when acting in legallymurky

environments.

We believe that both the plaintiffs and the district court defined the right in

question here too generally. The plaintiffs focus on the presumptive unreasonableness

ofsearching a house (whether for evidence of a crime or for building code violations)

without a warrant. The district court began its analysis with the observation that a

government official's warrantless entry into a house does not violate the Fourth

Amendment when one voluntarily consentsto the entry, only to note then that consent

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may not have been voluntarily given here. But "clearly established law should not be

defined at a high level of generality" and must be particularized to the facts of the

case so that the unlawfulness of an official's actions are apparent. Id. Context is

critical in determining qualified immunity in Fourth Amendment cases. See Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam). The first principles that the district

court and the plaintiffs emphasized can only go so far. Nowhere do they identify any

case applying these first principles in a context sufficiently similar to the situation in

which Wallace found himself when he searched the plaintiffs' house. Though the

plaintiffs need not provide a case directly on point, some existing precedent must

place the question beyond debate, or the conduct must be so obviously

unconstitutional that no precedent is needed. See Pauly, 137 S. Ct. at 551–52. The

plaintiffs have failed to carry their burden on this point.

Wallace alerts usto a case that holds that a building inspector in circumstances

very similar to the present ones did not violate the constitution at all. See

Memorandum, Appel v. City of St. Louis, No. 4:05-cv-772 (E.D. Mo. Aug. 15, 2007),

ECF No. 168. In that case, a St. Louis building inspector and several police officers

arrived at a residence to perform a Project 87 inspection. The building inspector

requested the occupant's consent to search, and the occupant asked about his right to

refuse. The building inspector told the occupant that failure to consent would result

in immediate condemnation and would force the occupant to vacate the residence, so

the occupant signed a consent-to-search form. Id. at 6. In granting the building

inspector qualified immunity, the court considered whether the occupant voluntarily

consented to the search, noting that whether consent was voluntary was a factually

intensive question. The court explained that the occupant was an adult with full

capacity who inquired about his rights and who was not detained or questioned for

very long, threatened with physical harm or with punishment, or placed under arrest.

The court noted that, though a large police presence at a housing inspection was

unusual, it was not sufficiently intimidating to deprive an adult of the ability to give

informed, knowing, and voluntary consent. That court also pointed out that, though

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the threat to condemn the house was disconcerting, it was not an empty threat because

the building inspector had authority under the ordinance to condemn the house

temporarily, and providing a citizen with accurate information about his rights does

not invalidate his consent. The court ultimately concluded that the building inspector

did not violate the Fourth Amendment. Id. at 26–27.

The district court distinguished Appel on the ground that there was

particularized knowledge of a building code violation so there was probable cause for

the search. But Wallace does not contend that he had probable cause to search the

plaintiffs' house; he contends instead that he had consent from one of the house's

occupants. Wallace did not need probable cause if he received voluntary consent. See

United States v. Wolff, 830 F.3d 755, 758 (8th Cir. 2016). In short, this is a consent

case, and probable cause does not seem all that relevant to the issue before us.

We acknowledge that it appears that the occupant in Appel was evidently not

in handcuffs when he gave his consent to search, but we have held that even a person

who is arrested and handcuffed for two hours can voluntarily consent to a search, see,

e.g., Comstock, 531 F.3d at 677–78; so the handcuffs are not enough to deny Wallace

the protection of Appel's shade and render Millbrooks's consent obviously

involuntary. The plaintiffs themselves acknowledge that the fact that Millbrooks was

handcuffed is not "the hinge on which the immunity analysis turns." But even if Appel

is distinguishable on this ground or others and can somehow be made to say that the

consent given in this case wasinvoluntary, we still think that the plaintiffs have failed

to demonstrate how every reasonable official in Wallace'sshoes would have believed

that he was violating the plaintiffs' rights. A single case, which is not even a binding

precedent in the district in which it was decided, seems hardly enough to count as one

that establishes a clear legal principle. One swallow does not a summer make.

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For these reasons, the plaintiffs have not carried their burden to show that the

unconstitutional nature of Wallace's conduct was clearly established. We therefore

reverse and remand for further proceedings.

KELLY, Circuit Judge, concurring.

I agree that Hershell Wallace is entitled to qualified immunity. I write to note

that St. Louis’s municipal liability is not before us on this appeal. The plaintiffs made

three claims relating to Wallace’s Project 87 inspection. One of those claims sought

to hold Wallace personally liable—this appeal disposes of that claim. The remaining

two claims seek to hold the City of St. Louis liable for an unconstitutional policy

under Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658 (1978). We express

no opinion on the district court’s denial of summary judgment on these Monell

claims. And, because we grant Wallace qualified immunity based on a lack of

clearly-established law, our ruling is not determinative of whether his employer is

liable for effectuating an unconstitutional policy. See Owen v. City of Independence,

Mo., 445 U.S. 622, 657–58 (1980). Thus, our opinion does not foreclose the

plaintiffs from pursuing their Monell claims based on Project 87 searches. 

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