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Ermini v. Scott

United States District Court, M.D. Florida, Fort Myers Division

April 5, 2017

PATRICIA I. ERMINI, f/k/a Patricia I. Mapes, Plaintiff,
v.
MIKE SCOTT, in his official capacity as Sheriff of Lee County, Florida, CHARLENE PALMESE, individually, RICHARD LISENBEE, individually, ROBERT HAMER, individually, and WILLIAM MURPHY, individually, Defendants.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendants William Murphy, Mike Scott, Robert Hamer, Richard Lisenbee, and Charlene Palmese's Motions for Summary Judgment (Docs. ##56, 56, 59) filed on January 19 and 20, 2017. Plaintiff filed responses (Docs. #63[1], 64, 65) on February 6, 2017. For the reasons set forth below, Defendants William Murphy, Robert Hamer, Richard Lisenbee, and Charlene Palmese's motions are granted and Defendant Mike Scott's motion is granted in part and denied in part.

         I.

         Summary judgment is appropriate only when the Court is satisfied 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(a). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir. 2010). However, “if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.” St. Charles Foods, Inc. v. Am.'s Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding summary judgment “may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts”)). “If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).

         II.

         This is a federal civil rights suit arising out of an incident that unfolded on the evening of March 23, 2012, culminating in the shooting of plaintiff Patricia Ermini[2] (plaintiff or Mapes) by Lee County Sheriff's Deputy Robert Hamer (Deputy Hamer). Plaintiff filed a twelve-count Amended Complaint (Doc. #52) alleging federal civil rights and state law claims. The material undisputed facts (along with some disputed facts) are as follows:

         A. The Events of March 23, 2012

          On March 23, 2012, at approximately 8:40 p.m., plaintiff's daughter, Robin LaCasse (LaCasse), called the Lee County Sheriff's Office from her home in Maine, requesting a welfare check for her 71-year old mother, plaintiff Patricia Mapes, who lived in Fort Myers, Florida. During that call, LaCasse told the operator that she had recently spoken on the phone to her mother, who had been going through a long and contentious divorce proceeding that had left her financially ruined. LaCasse stated that her mother seemed distraught and suicidal, and LaCasse was concerned because she had been unable to get back in touch with her mother. LaCasse informed the operator that her mother had a handgun in her house and suspected that she had been consuming alcohol that evening, even though Mapes had denied doing so to her daughter. LaCasse told the operator that Mapes liked wine and used to drink wine. After giving the address of her mother's home to the operator, LaCasse was told by the operator that the Sheriff's Office would go check on Mapes and report what they found.

         At approximately 8:45 p.m., Deputies Charlene Palmese, Robert Hamer, and Richard Lisenbee were dispatched to plaintiff's home. The information they received prior to reaching the residence was contained in the computer-aided dispatch (CAD) report. Based on the CAD report, the deputies knew plaintiff's name; age; that she was going through a divorce and was possibly suicidal; that her daughter was concerned for her well-being; that she owned a handgun; and that she was possibly intoxicated. None of the deputies had had any prior contacts with Mapes or the residence prior to that evening.

         Deputy Lisenbee arrived first at about 8:53 p.m., parked his marked sheriff's vehicle nearby, and approached the house alone. Deputy Lisenbee conducted a brief sweep of the exterior of the house, noticing there was a car in the garage. Deputy Lisenbee then began banging loudly on the front door and announcing “Sheriff's Office.” After seeing no one inside and receiving no response, Deputy Lisenbee found that the front door was closed but unlocked. Deputy Lisenbee opened the door, stepped slightly inside while shining his flashlight, announced “Sheriff's Office, Sheriff's Office, ” and asked if anyone was home. Deputy Lisenbee observed that no lights were on in the house, it was very dark, and the house was in disarray. Lisenbee saw an empty wine bottle on the floor of living room. After receiving no response to his inquiry, Deputy Lisenbee backed out of the house.

         Deputy Palmese arrived in a separate vehicle, and Deputy Lisenbee informed her what was going on. Deputies Lisenbee and Palmese approached the now-open front door[3] and Deputy Lisenbee yelled “Sheriff's Office.” There was no answer. Deputy Palmese had a bad feeling about the situation because it was so dark and quiet. The deputies decided to wait for additional backup.

         At approximately 8:57 p.m., Deputy Hamer was the last of the three dispatched officers to arrive at Mapes' home. Deputy Hamer retrieved an AR15 rifle from the trunk of his patrol car, as he would typically do when called to a scene that was known to have a firearm.

         All three deputies testified that it was standard protocol to enter a home when asked to conduct a welfare check, which is what they did next. As the deputies went through the front door, they did not knock but announced themselves by stating “Sheriff's Office” once or twice, but received no response. No lights were on in the home and the deputies did not turn any on. The deputies had drawn their weapons, which had high-powered flashlights illuminating their way. The deputies began “clearing” the interior of the home, beginning with the living room.

         The double doors to the master bedroom - which were wood so the officers could not see through them - were both closed. When opened, the doors swung into the bedroom. Deputy Lisenbee opened the right door to the master bedroom[4], stood inside the doorway, shined his flashlight inside, saw Mapes on the bed, and said “Sheriff's Office. Are you ok.” Mapes responded by saying “who's there?” Deputy Lisenbee stated that he was with the Sheriff's Office, said he was there to make sure she was okay, and asked “are you okay?” Deputy Lisenbee testified that Mapes told him he had better get out of her house or she was going to shoot him, and to stop shining the flashlight on her. Plaintiff recalled telling the people she had a gun and to get out of her house, but does not remember telling them that she was going to shoot them. Deputy Lisenbee began to back out of the bedroom.

         Deputy Hamer was outside the bedroom. Hearing plaintiff's threat to shoot, Deputy Hamer raised his rifle into a position to shoot at the master bedroom. Deputy Lisenbee, now outside the bedroom, saw a handgun emerge around the master bedroom door, which was illuminated by flashlights, but did not see plaintiff's body emerge through the doorway. Through the open side of the door Deputy Hamer saw a gun coming around the corner, and then saw half of plaintiff's body, clothed only in underwear. According to Deputy Hamer, as plaintiff was walking towards the door she was in a shooting-stance position with both hands on a handgun, finger on the trigger, pointed directly at Deputy Hamer.[5] Mapes said “I'm gonna shoot you.” Deputy Hamer feared for his life, as well as the lives of the other deputies, and fired seven rounds through the door at plaintiff, never speaking before he shot.[6] Five of the rounds struck Mapes.

         Mapes testified that she woke up in a complete panic to someone saying “she's in here, ” but had not heard the people knock on the door or announce that they were law enforcement officers.

         Mapes responded by saying “Get out of my house. I have a gun.” Plaintiff got out of bed and hid behind the door. Mapes again told the intruders to leave, and heard someone say he was with the Sheriff's Department. Mapes said she had not called the Sheriff's Department, and again told the person to get out of her house. Mapes also told the person to put the light out. Mapes does not remember retrieving her gun or pointing it at the deputies, and never said “I'm going to shoot you.” Mapes testified that she would never have threatened to shoot because she was taught not to do that in training to use the handgun.

         Deputy Hamer testified he stopped firing because he saw Mapes fall and saw the gun fall out of her hands. Deputy Hamer kicked the gun away, handcuffed Mapes, and continued to clear the area. The handgun plaintiff had been holding, as well as a spent shell casing from the gun, were recovered near where she had fallen after being shot. Deputy Hamer knew that he had fired first, and only later discovered that plaintiff's gun had discharged, with a bullet lodging near the ceiling above where he had been standing. While the time frame is not entirely clear from the record, Mapes was likely shot about two minutes after the deputies entered her home, and within seconds after she told them to get out of the house.

         Deputy Hamer provided emergency medical assistance to the wounds on plaintiff's leg. Both the deputies and the emergency medical personnel testified that plaintiff was very confused about what had just occurred, repeatedly asked everyone there, “why did you shoot me?, ” “why were you trying to kill me?, ” and wondered why there were police in her home trying to kill her because she had not called the police. Plaintiff had a total of five wound areas and was transported to the hospital and detained under constant supervision by Sheriff's deputies due to suspicion that she had committed a criminal offense.

         B. The Subsequent Investigation, Search, and Arrest

          William Murphy, Jr. (Det. Murphy) was the lead detective on the case and conducted a criminal investigation regarding the circumstances of that night. On March 24, 2012, Det. Murphy completed a search warrant Affidavit based on his initial investigation, and submitted a search warrant application to a state court judge. (Doc. #56-1, Ex. J.) In his Affidavit, Det. Murphy relied on information provided to him in the preliminary stages of the investigation at the scene, including witness interviews and his own observations. Among other things, Det. Murphy stated in the Affidavit that Mapes had been the first to fire her handgun at Deputies Lisenbee and Hamer, to which Deputy Hamer returned fire. The Affidavit asserts that Det. Murphy had probable cause to believe that Mapes had committed the offense of attempted murder of a law enforcement officer, Fla. Stat. § 782.04, and sought a search warrant to enter and search the house for evidence of that offense. (Doc. #56-1, Ex. J.) Based upon the Affidavit and the Application, a search warrant was issued and served on Mapes' home on March 24, 2012. (Doc. #64-4, p. 19-20.)

         Although plaintiff had been detained at the hospital since her transport, Det. Murphy formalized plaintiff's arrest on March 29, 2012, by preparing and serving an Arrest/Notice to Appear Form for Aggravated Assault on a Law Enforcement Officer in violation of Fla. Stat. § 754.07. (Doc. #64-5, pp. 24-25.) Det. Murphy also took Mapes' statement on March 29, 2012 at the hospital. Mapes, still handcuffed to the bed, said that she was sound asleep when she was woken up in her home, but acknowledged that she then heard the officers say they were with the Sheriff's Office. Mapes did not believe that they were the police because she had not called the police to come to her house and did not know why they would have broken into her home. Mapes stated that because they did not want to leave, she shot her gun.

         The State Attorney's Office ultimately filed a no information due to insufficient evidence and the charges against Mapes were dropped on June 5, 2012.

         III.

         Plaintiff's Amended Complaint (Doc. #52) asserts the following remaining claims[7]: (1) a 42 U.S.C. § 1983 claim against Deputies Lisenbee, Hamer, and Palmese for violation of Fourth Amendment rights (Count I); (2) a 42 U.S.C. § 1983 claim against Deputy Hamer for the use of excessive force (Count II); (3) a 42 U.S.C. § 1983 claim against Det. Murphy for false arrest (Count III); (4) a 42 U.S.C. § 1983 claim against Det. Murphy for falsifying a search warrant affidavit (Count IV); (5) a state law negligence claim against Deputies Palmese, Lisenbee, and Hamer (Count V); (6) a state law claim against Deputy Hamer for Battery (Count VI); (7) a state law gross negligence claim against Deputies Palmese, Lisenbee, and Hamer (Count VII); (8) a state law claim for negligent infliction of emotional distress against Deputies Lisenbee and Hamer (Count VIII); (9) a state law claim against Det. Murphy for malicious prosecution (Count IX); (10) a state law claim against Det. Murphy for intentional infliction of emotional distress (Count X); (11) a state law claim against Mike Scott in his official capacity as Lee County Sheriff for negligence for failure to property train and supervise (Count XI); and (12) a state law claim against Sheriff Mike Scott in his official capacity for negligence (Count XII). (Doc. #52.) The Count XIII defamation claim against Sheriff Scott was previously dismissed (Doc. #45.)

         IV. The Four 42 U.S.C. § 1983 Claims

          “Section 1983 creates a private cause of action for deprivations of federal rights by persons acting under color of state law.” Laster v. City of Tampa Police Dept., 575 F. App'x 869, 872 (11th Cir. 2014) (citing 42 U.S.C. § 1983). Deputies Lisenbee, Hamer, and Palmese, and Det. Murphy, move for summary judgment as to the § 1983 claims in Counts I, II, III, and IV primarily on the basis of qualified immunity. At the summary judgment stage the facts are viewed in the light most favorable to plaintiff, but “the Court considers only the facts that were knowable to the defendant officers.” White v. Pauly, 137 S.Ct. 548, 550 (2017), citing Kingsley v. Hendrickson, 135 S.Ct. 2466, 2474 (2015)).

         A. Qualified Immunity Principles

         Qualified immunity is an affirmative defense which protects government officials sued in their individual capacities from liability when: (1) they act within the scope of their discretionary authority, and (2) their conduct “violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir. 2007) (citations and quotation marks omitted).

         The first step of qualified immunity analysis requires a government official to demonstrate that he was acting within the scope of his discretionary authority when the allegedly unlawful act occurred. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). If the defendant was not acting within his discretionary authority, he is ineligible for qualified immunity. Id.

         If the government official establishes the first step, the burden shifts to plaintiff to show that qualified immunity is inappropriate. Jacoby v. Baldwin County, 835 F.3d 1338, 1344 (11th Cir. 2016). To show qualified immunity is inappropriate, a plaintiff must establish that: (1) the facts, when taken in the light most favorable to the party asserting the injury, show the officer's conduct violated a federal right, and (2) the federal right in question was clearly established at the time of the violation. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014); Jacoby, 835 F.3d at 1344. The Court may consider these two prongs in either order, and the official is entitled to qualified immunity if the plaintiff fails to establish either one. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         (1) Acting Within Scope of Discretionary Authority

          “[A] government official can prove he acted within the scope of his discretionary authority by showing objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988). The Eleventh Circuit has “interpreted the term ‘discretionary authority' to include all actions of a governmental official that (1) ‘were undertaken pursuant to the performance of his duties, ' and (2) were ‘within the scope of his authority.'” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (quoting Rich, 841 F.2d at 1564). See also Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011). “The inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act. Framed that way, the inquiry is no more than an ‘untenable' tautology.” Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Rather, the inquiry is “whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties. The scope of immunity should be determined by the relation of the [injury] complained of to the duties entrusted to the officer.” Id. (quotation marks omitted).

         (2) Violation of Federal Right Which Is Clearly Established

          “A government official sued under § 1983 is entitled to qualified immunity unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Carroll v. Carman, 135 S.Ct. 348, 350 (2014) (citation omitted). The Court employs a two-part inquiry, determining (1) whether the facts, taken in the light most favorable to the party asserting the injury, show that the officer's conduct violated a federal right; and (2) whether the right in question was clearly established at the time of the violation. Tolan, 134 S.Ct. at 1865. If no federal right is violated, the claim is over. If the officer did violate a federal right, the issue becomes whether that right was clearly established at the time of the officer's conduct.

         “A right is clearly established only if its contours are sufficiently clear that a reasonable official would understand that what he is doing violates that right. In other words, existing precedent must have placed the statutory or constitutional question beyond debate. This doctrine gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Carroll, 135 S.Ct. at 350 (internal citations and punctuation omitted). The Court undertakes this inquiry “in light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). There need not be a case directly “on point” before the Court may conclude the law is clearly established, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Stanton v. Sims, 134 S.Ct. 3, 5 (2013) (citation omitted). See also Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). The “clearly established” analysis must identify a Supreme Court case where an officer acting under similar circumstances was held to have violated the federal right. White, 137 S.Ct. at 551

         B. Count I - 42 U.S.C. § 1983 Fourth Amendment Violation

         Count I asserts a claim under 42 U.S.C. § 1983 against Deputies Lisenbee, Hamer, and Palmese for violation of the Fourth Amendment based upon their actions on the night of March 23, 2012, at plaintiff's house. Plaintiff “concedes the initial entry into her home by the Deputies was reasonable under the Fourth Amendment because they reasonably believed Ermini was in need of emergency assistance based on her daughter's call.” (Doc. #63, p. 11.) Plaintiff asserts, however, that the deputies violated her Fourth Amendment rights when they remained in her home without a warrant after they found she was in no grave emergency or imminent danger of injury and she asked them to leave. (Id.)

         Defendants assert that they are entitled, at a minimum, to summary judgment based upon qualified immunity (Doc. #59, pp. 16-18.) The Court agrees with defendants.

         (1) Performing a Discretionary Function

         The facts viewed in the light most favorable to plaintiff establish that the actions of all three defendants were undertaken pursuant to the performance of their official duties and were within the scope of their authority as deputy sheriffs. In Florida, deputy sheriffs have the same powers as the sheriff, Fla. Stat. § 30.07, and among other things are “conservators of the peace.” Fla. Stat. § 30.15(1)(e). Florida, as many jurisdictions, “expect [police officers] to take those steps that are necessary to ensure the safety and welfare of the citizenry at large.” Ortiz v. State, 24 So.3d 596, 600 (Fla. 5th DCA 2009) (citation omitted). While working their assigned shift, each deputy was dispatched to the location based upon information received from plaintiff's daughter establishing a basis for concern about plaintiff and potentially others. Pursuant to their normal job duties, the deputies conducted a welfare check after arriving at the residence. The deputies were acting well within their discretionary authority even after plaintiff asked them to leave. Roberts, 643 F.3d at 904.

         Accordingly, the deputies were acting within their discretionary authority when they conducted a welfare check and did not exceed the scope of this discretionary authority. Thus, the burden shifts to plaintiff to show that a clearly established constitutional right was violated.

         (2) Violation of a Clearly Established Constitutional Right

         As noted earlier, plaintiff must show that the conduct of the officer violated a federal right and that the federal right was clearly established at the time. In determining either prong, the Court may not resolve genuine factual disputes in favor of the party seeking summary judgment. Tolan, 134 S.Ct. at 1866.

         (a) Violation of Fourth Amendment?

         The general Fourth Amendment principles concerning entry into houses are well established. “[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.” Payton v. New York, 445 U.S. 573, 590 (1980). While there is a presumption that crossing the threshold without a warrant is unconstitutional, Groh v. Ramirez, 540 U.S. 551, 559 (2004), the Supreme Court has recognized a number of exigent circumstances which qualify as “reasonable exceptions” to the warrant requirement. Kentucky v. King, 563 U.S. 452, 459-60 (2011).

         “One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” Brigham City v. Stuart, 547 U.S. 398, 403-04 (2006). Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury when they have an objectively reasonable basis for such a belief. Id. at 403. This exception does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only an objectively reasonable basis for believing that a person within the house is in need of immediate aid. Michigan v. Fisher, 558 U.S. 45, 47 (2009). “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.'” Brigham City, 547 U.S. at 403 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)).

         The Court must consider the totality of the circumstance when determining “whether a law enforcement officer faced an emergency that justified acting without a warrant.” Missouri v. McNeely, 133 S.Ct. 1552, 1559 (2013). There is “no doubt” that officers do not violate the Fourth Amendment by opening a door and entering a home when faced with these types of emergency circumstances. City & County of San Francisco v. Sheehan, 136 S.Ct. 1765, 1774-75 (2015). See also Georgia v. Randolph, 547 U.S. 103, 118 (2006) (“it would be silly to suggest that the police would commit a tort by entering [a residence] ... to determine whether violence ... is about to (or soon will) occur.”); Ryburn v. Huff, 565 U.S. 469 (2012).

         The only disputed issue in this case is whether the Fourth Amendment was violated when the deputies did not immediately leave the premises once they determined Mapes was alive and uninjured and she told them to leave. Mapes argues that no reasonable officer could have concluded there was an urgent, on-going emergency, and that a reasonable officer would have known a warrant was required to stay. (Doc. #63, p. 11.)

         It is certainly true that an officer's “warrantless search must be strictly circumscribed by the exigencies which justify its initiation. . . .” Mincey, 437 U.S. at 393. Unnecessarily extending the duration of the police presence after a lawful entry may indeed turn what was reasonable at its inception into an unreasonable intrusion. That, however, was not the situation in this case. The Court concludes that under the facts of this case, viewed in the light most favorable to plaintiff, there was no violation of the Fourth Amendment by any of the three deputies.

         The deputies were lawfully present at a location they had a right to be - in the house conducting a welfare check at the request of a relative. Prior to their arrival, the deputies knew that the occupant was a 71-year old women who was going through a traumatic divorce, may have been drinking, and had a gun in the house. The officers knew that the occupant's daughter had called the Sheriff's Office because of her concern for the occupant's welfare. Upon arriving, the first deputy found no sign of activity, a vehicle in the garage, a dark house, a door which was closed but unlocked, and an empty wine bottle in the living room. There was no response to several loud statements by one of the deputies. When the deputies entered the house, their additional announcements went without a response. When the bedroom door was partially opened, a deputy saw an occupant laying on the bed. The occupant initially did not respond when the officer announced their presence. While the occupant's response is disputed, plaintiff admits she did say she had a gun and told the people to get out of the house. Plaintiff then got out of bed and approached the door near the deputies, yelling for the people to leave as she approached. Deputy Lisenbee, the only officer who entered the bedroom, had backed out of the bedroom within seconds, and then the shooting started.

         The Court concludes that even when viewed in the light most favorable to plaintiff, staying in the house for literally a few seconds after being told to leave did not violate plaintiff's Fourth Amendment right. The officers clearly had not completed the purpose of their security check, and the concerns expressed by the daughter had not been shown to have dissipated. If anything, the deputies had simply confirmed the daughter's concerns: An empty wine bottle was in the living room, plaintiff was in a dark house relatively early in the evening, and she said she had a gun. Even when all of the testimony about the actual gun in plaintiff's possession and her discharge of that gun is not considered, the officers clearly had a reasonable basis to stay in the house as they did. None of the deputies violated plaintiff's Fourth Amendment rights, so summary judgment as to the Count I, § 1983 claim, is granted in their favor.

         (b) Violation of Clearly Established Right?

         Even if the Court is wrong, and the deputies violated the Fourth Amendment by staying in the house after seeing plaintiff and being instructed to leave, the Fourth Amendment right in this context was not clearly established by the Supreme Court. There is no evidence that the deputies knowingly violated the Constitution or federal law. Therefore, the question is whether, in light of precedent existing at the time, the officers were “plainly incompetent” in staying in the ...


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