PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TAMETTA BELLOTTE, Individually;
E. B.; C. B., by and through their
next friend and mother, Tametta
Bellotte,
Plaintiffs-Appellees,
v.
TRACY L. EDWARDS, Detective; P.
G. SMITH, DEPUTY; KEITH
SIGULINSKY, Corporal, Ranson
Police Department, formerly
UNKNOWN DEFENDANT ONE; ADAM
LETTS, Corporal, Charles Town
Police Department, formerly
UNKNOWN DEFENDANT TWO;
ROBERT SELL, Corporal, Jefferson No. 10-1115
County Sheriff’s Department,
formerly UNKNOWN DEFENDANT
THREE; KEVIN BOYCE, Corporal,
Jefferson County Sheriff’s
Department, formerly UNKNOWN
DEFENDANT FOUR; JAMES TENNANT,
Deputy, Jefferson County Sheriff’s
Department, formerly UNKNOWN
DEFENDANT FIVE; BRANDON
HAYNES, Deputy, Jefferson County
Sheriff’s Department, formerly
UNKNOWN DEFENDANT SIX; SAM
SMITH, Patrolman, Charles Town
Police Department, formerly
UNKNOWN DEFENDANT SEVEN;
2 BELLOTTE v. EDWARDS
ANTHONY MANCINE, Patrolman,
Charles Town Police Department,
formerly UNKNOWN DEFENDANT
EIGHT; PATRICK NORRIS, Patrolman,
Ranson Police Department,
Defendants-Appellants,
and
WAL-MART STORES EAST, L.P.,
Defendant,
v.
SAMUEL JOSEPH BELLOTTE,
Third Party Defendant.
TAMETTA BELLOTTE, Individually;
E. B.; C. B., by and through their
next friend and mother, Tametta
Bellotte,
Plaintiffs-Appellants,
v.
TRACY L. EDWARDS, Detective; P. No. 10-1123
G. SMITH, Deputy; KEITH
SIGULINSKY, Corporal, Ranson
Police Department, formerly
UNKNOWN DEFENDANT ONE; ADAM
LETTS, Corporal, Charles Town
Police Department, formerly
UNKNOWN DEFENDANT TWO;
BELLOTTE v. EDWARDS 3
ROBERT SELL, Corporal, Jefferson
County Sheriff’s Department,
formerly UNKNOWN DEFENDANT
THREE; KEVIN BOYCE, Corporal,
Jefferson County Sheriff’s
Department, formerly UNKNOWN
DEFENDANT FOUR; JAMES TENNANT,
Deputy, Jefferson County Sheriff’s
Department, formerly UNKNOWN
DEFENDANT FIVE; BRANDON
HAYNES, Deputy, Jefferson County
Sheriff’s Department, formerly
UNKNOWN DEFENDANT SIX; SAM
SMITH, Patrolman, Charles Town
Police Department, formerly
UNKNOWN DEFENDANT SEVEN;
ANTHONY MANCINE, Patrolman,
Charles Town Police Department,
formerly UNKNOWN DEFENDANT
EIGHT; PATRICK NORRIS, Patrolman,
Ranson Police Department,
Defendants-Appellees,
and
WAL-MART STORES EAST, L.P.,
Defendant,
v.
SAMUEL JOSEPH BELLOTTE,
Third Party Defendant.
4 BELLOTTE v. EDWARDS
Appeals from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
John Preston Bailey, Chief District Judge.
(3:08-cv-00094-JPB)
Argued: October 27, 2010
Decided: January 11, 2011
Before WILKINSON, GREGORY, and WYNN,
Circuit Judges.
Affirmed in part, reversed in part, dismissed in part, and
remanded by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Gregory joined. Judge Wynn wrote
a separate opinion dissenting in part.
COUNSEL
Jason Patrick Foster, STEPTOE & JOHNSON, LLP, Martins-
burg, West Virginia, for Appellants/Cross-Appellees. Thomas
E. Carroll, CARROLL & TURNER, PSC, Monticello, Ken-
tucky, for Appellees/Cross-Appellants.
OPINION
WILKINSON, Circuit Judge:
In this case, police officers executed a late-night, no-knock
entry into a family’s home. Though the officers claim that
exigent circumstances justified their conduct, we agree with
the district court that the remarkably scanty rationale offered
for the no-knock invasion makes an award of qualified immu-
BELLOTTE v. EDWARDS 5
nity inappropriate. With respect to the denial of qualified
immunity on plaintiffs’ other claims, we affirm in part and
reverse in part, and dismiss the cross-appeal for want of juris-
diction.
I.
On May 31, 2007, Sam Bellotte printed some photographs
from a memory card at a self-service station in a Winchester,
Virginia Wal-Mart. When he went to pay for the prints, a
clerk insisted on inspecting the photos. Mr. Bellotte admitted
that some contained nudity and surrendered them, then made
other purchases and left the store.
The Wal-Mart employees charged with discarding the pho-
tos noticed one depicting male genitalia seemingly next to a
child’s face. Concerned that the photograph was child pornog-
raphy, the employees notified the Frederick County police.
An investigation of the surveillance camera footage and credit
card receipts showed that Mr. Bellotte, a resident of Jefferson
County, West Virginia, had printed the photo in question. A
Frederick County police officer placed the photo in a file con-
tainer and notified the Jefferson County Sheriff’s Department,
which then took responsibility for the investigation. After
reviewing the file, verifying Mr. Bellotte’s address, and learn-
ing that both Mr. and Mrs. Bellotte held concealed carry per-
mits, Detective Tracy Edwards sought a search warrant for the
Bellotte residence. Around 9:00 that evening, the magistrate
reviewed the application and signed the warrant.
In order to execute the warrant, Detective Edwards sought
and received approval from the ranking Jefferson County law
enforcement officer for the assistance of the Jefferson County
Special Operations Team ("SORT Team"). The SORT Team
leaders decided that their involvement was justified due to the
possibility of a violent reaction from Mr. Bellotte and the con-
cealed carry permits held by both Mr. and Mrs. Bellotte. After
6 BELLOTTE v. EDWARDS
the three SORT squads were assembled and briefed, they
arrived at the Bellotte residence around 10:15 p.m.
The three squads took positions around the house, wearing
tactical vests and helmets and armed with flashlight-equipped
.45 caliber Sig Sauer pistols and "hooligan" pry bars for a
possible forced entry. Then, the Bellottes claim, the SORT
squads opened the unlocked front and rear doors without
knocking or announcing their presence. They immediately
executed a dynamic entry—a technique that the SORT Team
had recently been trained in—by which all squads simulta-
neously rushed into the home from multiple entry points.
After the SORT squads were inside the house, they repeatedly
identified themselves as law enforcement officers executing a
search warrant.
The first member of the family to encounter the SORT
Team was E.B., the Bellottes’ teenage son. When the officers
found him upstairs walking out of his bedroom and talking on
a cell phone, they subdued and handcuffed him. E.B. asserts
that the officers also poked a gun at the back of his head. In
another bedroom, the team found C.B., the Bellottes’ young
daughter, and led her downstairs unhandcuffed.
When the SORT Team came to the parents’ bedroom,
Tametta Bellotte raced out of bed and ran screaming toward
the closet. When she reached for a gun bag, the officers
forced her to the ground and handcuffed her. Later, when the
house was secured, the SORT Team allowed Mrs. Bellotte to
get fully dressed under the supervision of a female officer.
The search of the Bellotte residence concluded shortly before
midnight.
Mr. Bellotte, it turns out, had spent that night in his hunting
cabin in Hampshire County, West Virginia. The next morn-
ing, when his wife told him what happened, he went to see
Detective Edwards at the Jefferson County Sheriff’s Office.
He gave a recorded statement and later produced a passport
BELLOTTE v. EDWARDS 7
and birth certificate showing that the female in the photo was
not a child, but in fact a 35-year-old woman who lived in the
Philippines. Thus Mr. Bellotte did not in fact possess any
child pornography, and no charges were ever filed against
him.
Mrs. Bellotte and her children brought several causes of
action against Detective Edwards and the officers involved in
the search under 42 U.S.C. § 1983 and state law. On Decem-
ber 28, 2009, the district court granted in part and denied in
part defendants’ motion for summary judgment. The court
dismissed plaintiffs’ claims inasmuch as they alleged that the
search warrant was invalid and that certain aspects of the exe-
cution of the warrant were unreasonable. The court did find,
however, that the defendants were not entitled to qualified
immunity from the plaintiffs’ Fourth Amendment claims
regarding the no-knock entry and excessive use of weapons.
Finally, the court allowed the plaintiffs’ state-law claim for
intentional infliction of emotional distress to proceed as well.
The officers appealed the partial denial of qualified immunity,
and the Bellottes cross-appealed the partial grant of summary
judgment on their search warrant and warrant execution
claims.
II.
The district court granted summary judgment to the officers
on the Bellottes’ claims that the hour of the evening chosen
for the search and the decision to have the SORT Team pres-
ent during the search were unreasonable, and those claims are
not before us on this appeal. Instead, we address here the nar-
row question whether the officers are entitled to qualified
immunity with respect to the Bellottes’ no-knock entry claim.
The officers offer two reasons. They first argue that the no-
knock entry did not violate the Fourth Amendment because it
was justified under the circumstances. The officers also assert
that the entry did "not violate clearly established statutory or
constitutional rights of which a reasonable person would have
8 BELLOTTE v. EDWARDS
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). But
the thin justification offered here renders this particular entry
a violation of clearly established Fourth Amendment law gov-
erning the obligation to knock and announce.
A.
The knock-and-announce requirement has long been a fix-
ture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir.
1998). Before forcibly entering a residence, police officers
"must knock on the door and announce their identity and pur-
pose." Richards v. Wisconsin, 520 U.S. 385, 387 (1997). This
requirement serves the valuable ends of "(1) protecting the
safety of occupants of a dwelling and the police by reducing
violence; (2) preventing the destruction of property; and (3)
protecting the privacy of occupants." Bonner v. Anderson, 81
F.3d 472, 475 (4th Cir. 1996).
Though the "knock and announce principle forms a part of
the Fourth Amendment reasonableness inquiry," Wilson v.
Arkansas, 514 U.S. 927, 930 (1995), no-knock entries may
still be reasonable by virtue of exigent circumstances, see
United States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994).
"In order to justify a ‘no-knock’ entry, the police must have
a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dan-
gerous or futile, or that it would inhibit the effective investi-
gation of the crime by, for example, allowing the destruction
of evidence." Richards, 520 U.S. at 394. The Supreme Court
has admonished that "it is the duty of a court confronted with
the question to determine whether the facts and circumstances
of the particular entry justified dispensing with the knock-
and-announce requirement." Id. We have thus required a par-
ticularized basis for any suspicion that would justify a no-
knock entry. See United States v. Dunnock, 295 F.3d 431, 434
(4th Cir. 2002).
BELLOTTE v. EDWARDS 9
B.
The officers first argue they had a reasonable suspicion that
knocking and announcing their presence would jeopardize
their own safety.1 In particular, they contend that Mr. Bellotte,
due to his suspected possession or production of child pornog-
raphy, "could react unpredictably and possibly violently"
when faced with the prospect of arrest and prosecution. Brief
of Appellants at 24. The embarrassment that citizens face in
being linked to child pornography, so the theory goes, leads
them to violence when confronted with an investigator’s pres-
ence.
Such speculation hardly establishes the level of justification
needed to authorize a no-knock entry. Production or posses-
sion of child pornography is patently unlawful and utterly
deplorable, but to condemn it is not to say that it automati-
cally constitutes a violent crime. Assuming, purely for the
sake of argument, that the photograph Mr. Bellotte left behind
was child pornography, one could not reasonably discern a
propensity to violence toward police from that picture alone.
Possession of this single photograph, without more, simply
does not provide a particularized basis for believing that there
was danger to police executing a warrant. Conjecture to the
contrary under these circumstances was unreasonable.
Nor was there any indication that the Bellottes had any ten-
dency to violence in general. There is no record that either of
the Bellottes had ever been convicted of a crime, or that either
of them had ever had a run-in with the law. To the contrary,
the officers admit that holding concealed carry permits
showed the Bellottes to be citizens in good standing who
passed a background check. Then as now, the officers do not
point to even a single incident that would call into question
1
The district court noted the officers’ concession "that Detective
Edwards did not state any particularized basis for her concern that evi-
dence may be destroyed," and we accordingly do not take up the question.
10 BELLOTTE v. EDWARDS
their fitness to carry a concealed weapon or to retain the
clearly established constitutional protection of the knock-and-
announce requirement.
United States v. Grogins, 163 F.3d 795 (4th Cir. 1998),
illustrates one paradigmatic no-knock entry and shows by
contrast how weak the case before us is. In Grogins, officers
executing a search warrant at a drug stash house declined to
knock and announce for fear of their own safety. The subject
of the investigation had a violent history of shoot-outs, man-
aging drug operations, and intimidating people by firing
weapons into their homes. He even made a chilling declara-
tion "that he was not going back to jail and that he would do
whatever was necessary to avoid it." Id. at 796. Whereas the
officers in Grogins had a truly reasonable suspicion that their
own lives would be in danger if they announced their pres-
ence to such a vicious individual, the officers here can point
to not even one of these particularized indicia of risk.
In United States v. Singleton, 441 F.3d 290 (4th Cir. 2006),
police argued that the knock-and-announce requirement
should be excused not only because of "generalizations about
the inherent violence of drug dealers," but also because of the
defendant’s multiple previous firearms offense arrests, a pre-
vious arrest for second-degree murder, and his location in "a
known open air drug market." Id. at 293. While that support
did not unambiguously establish "‘a particularized basis to
reasonably suspect that knocking and announcing would be
met with violent resistance,’" id. (quoting Grogins, 163 F.3d
at 798) (emphasis in original), we found that the no-knock
entry did not violate the Fourth Amendment because the offi-
cers had "reasonably relied in good faith upon a properly
obtained search warrant that specifically authorized a no-
knock search," id. at 294.
In this case, no warrant authorized a no-knock entry. This
circuit has approved of such warrants in appropriate circum-
stances, see Singleton, 441 F.3d at 294, and these very offi-
BELLOTTE v. EDWARDS 11
cers testified to their previous experience with no-knock
warrants. The officers do not contend, and indeed nothing in
the record shows, that they discovered any new information
after securing the warrant that would have been supportive of
a no-knock entry. Of course, the absence of a no-knock war-
rant "should not be interpreted to remove the officers’ author-
ity to exercise independent judgment concerning the wisdom
of a no-knock entry at the time the warrant is being executed."
Richards, 520 U.S. at 396 n.7. But where, as here, the officers
faced no barrier at all to seeking no-knock authorization at the
time they obtained a warrant, "a strong preference for war-
rants" leads us to view their choice not to seek no-knock
authorization with some skepticism. United States v. Leon,
468 U.S. 897, 914 (1984).
To permit a no-knock entry on facts this paltry would be to
regularize the practice. Our cases allow officers the latitude to
effect dynamic entries when their safety is at stake, but the
Fourth Amendment does not regard as reasonable an entry
with echoes, however faint, of the totalitarian state. The offi-
cers who burst into the Bellotte home point to no signpost of
danger, nor to any criminal history, nor indeed to any factor
that "distinguishes this particular search from many others
that police conduct on a daily basis." Singleton, 441 F.3d at
294. What prompted their entry was the possession of a single
photograph suggestive more of unlawful lurid propensities
than of violent ones. Officers are, of course, entitled to inter-
pret "facts through the lens of [their] police experience and
expertise." Grogins, 163 F.3d at 798 (quoting Ornelas v.
United States, 517 U.S. 690, 699 (1996)). But the entry here
seems less grounded in experience than in speculation, which
the district court rightly found to be "insufficiently particular-
ized to excuse the knock and announce requirement," and
inadequate to justify a grant of qualified immunity.
C.
The officers next contend that a no-knock entry was proper
not only for their own safety, but for that of Mr. Bellotte as
12 BELLOTTE v. EDWARDS
well. As they read it, "[t]he available scholarly and scientific
literature pertaining to sexual offenders underscores that they
are at great risk for suicide at any number of phases of the
arrest and prosecutorial process." Brief of Appellants at 25-26.
From this, we are to conclude that knocking and announcing
posed a threat to Mr. Bellotte. We find this argument unper-
suasive.
For starters, the claim is speculative. The officers’ own tes-
timony demonstrates that there was no reasonable, particular-
ized suspicion that Mr. Bellotte was a danger to himself, but
instead uncertainty about what child pornographers in general
would do upon arrest: "Because you don’t know how or what
the mental status of somebody [is] that you’re doing a warrant
for child pornography, you don’t know how they’re going to
react." Brief of Appellants at 24. But the constitutional stan-
dard of reasonableness demands a particularized basis before
dispensing with the requirement to knock and announce—a
particularized basis not presented by these facts.
The officers attempt to shore up the argument by citing to
an empirical study, Colin Pritchard and Elizabeth King’s
"Differential Suicide Rates in Typologies of Child Sex
Offenders in a 6-year Consecutive Cohort of Male Suicides,"
9 Archives of Suicide Research 35 (2005), that allegedly sup-
ports their assessment of Mr. Bellotte’s suicide risk. We are
reluctant at the outset to credit this ex post rationalization, for
the record provides no indication that the officers were aware
of this study at the time of the entry. See Ker v. California,
374 U.S. 23, 41 n.12 (1963) ("It goes without saying that in
determining the lawfulness of entry . . . we may concern our-
selves only with what the officers had reason to believe at the
time of their entry."). More importantly, the authors of the
study wisely caution against drawing a particularized assess-
ment of suicide risk for any one person, for "this epidemiolog-
ical approach can say little about an individual and can only
yield results that are indicative, rather than definitive, of gen-
eral trends." Pritchard & King, supra, at 40. Caution is further
BELLOTTE v. EDWARDS 13
appropriate because the study draws on a sample that is both
small and foreign—two counties in southern England. Id. at
37.
Even read in the light most favorable to the officers, the
study offers but scant support. It found that the annual suicide
rate for the relevant set of convicted child sex offenders was
2.7%, hardly enough for a reasonable inference of suicide risk
in someone not even convicted of the crime. Id. at 39. The
authors candidly admit that "the numbers of suicides as sequel
to child sexual offender [convictions] were small." Id. More-
over, it remains unclear how many, if any, of those suicides
occurred at the time of arrest, for the study deals only with
those that "occurred around the time of the trial or the disclo-
sure of their offences." Id. To leap from this narrow study in
southern England to a particularized basis that Mr. Bellotte
presented an imminent suicide risk requires an extrapolation
that flirts with absurdity.
Finally, cases addressing the justifications for no-knock
entries speak primarily in terms of officer safety. See, e.g.,
Singleton, 441 F.3d at 293 ("[E]xigent circumstances—like a
threat of physical violence to officers—may allow officers to
conduct a no-knock entry.") (internal quotation omitted);
Gould, 165 F.3d at 274 ("Without question, the failure to
knock and announce prior to entering a home can be justified
by a fear for officer safety."); United States v. Lalor, 996 F.2d
1578, 1584 (4th Cir. 1993) ("Exigent circumstances include
the possibility of destruction of evidence and danger to enter-
ing officers."); see also Ker, 374 U.S. at 40 (Exigent circum-
stances allow an exception to the knock-and-announce
requirement when "the officer’s peril would have been
increased or the arrest frustrated had he demanded entrance
and stated his purpose"). Certainly, we can imagine actual or
threatened injuries to hostages or other third parties that might
excuse the knock-and-announce requirement. A no-knock
entry might even be appropriate in emergency circumstances
to protect the suspect to be apprehended. But here, neither the
14 BELLOTTE v. EDWARDS
prospect of injury nor any other emergency gave the officers
a plausible reason to neglect what the Constitution ordinarily
demands. A professed concern for the suspect, grounded in
little more than speculation about what a certain category of
people might do under certain circumstances, fails to justify
the ironic result of a violation of that very suspect’s rights.
D.
Finally, the officers assert that there was a reasonable sus-
picion of danger to themselves and to the Bellottes because
both Mr. and Mrs. Bellotte had concealed carry permits.
According to the officers, homeowners with such permits
"might have handguns readily accessible to them." Brief of
Appellants at 26. The combination of ready access to hand-
guns, combined with suspected involvement in child pornog-
raphy, is said to create "the potential for a perfect storm of
violence." Id. at 27.
It should go without saying that carrying a concealed
weapon pursuant to a valid concealed carry permit is a lawful
act. The officers admitted at oral argument, moreover, that
"most people in West Virginia have guns." Most importantly,
we have earlier rejected this contention: "If the officers are
correct, then the knock and announcement requirement would
never apply in the search of anyone’s home who legally
owned a firearm." Gould, 165 F.3d at 272; accord United
States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United
States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We rec-
ognized over a decade ago that "[t]his clearly was not and is
not the law, and no reasonable officer could have believed it
to be so." Gould, 165 F.3d at 272.
It is the officers’ failure to offer a plausible and particular-
ized basis for believing that someone in the Bellotte house-
hold would respond violently to a knock-and-announce entry
that sinks their contention. "We think a reasonable officer
would have known that guns do not fire themselves, and that
BELLOTTE v. EDWARDS 15
a justifiable fear for an officer’s safety must include a belief,
not simply that a gun may be located within a home, but that
someone inside the home might be willing to use it." Id.
While in some cases a no-knock entry may prevent violence,
in others "an unannounced entry may provoke violence in
supposed self-defense by the surprised resident." Hudson v.
Michigan, 547 U.S. 586, 594 (2006). That the sword is
double-edged underscores the need for some particularized
suspicion that a resident would resort to violence when police
knock and announce their presence.
This is necessarily a narrow conclusion, for the result might
be different under different facts. It might contribute to an
exigency that supports a no-knock entry if the suspected
crime were more closely connected with violence. See
Grogins, 163 F.3d at 799. Likewise if it were unlawful to pos-
sess the weapon thought to be inside the home. See United
States v. Wardrick, 350 F.3d 446, 452 (4th Cir. 2003). Or if
the suspect had some history of criminal behavior. See United
States v. Ramirez, 523 U.S. 65, 71 (1998). Or if he had actu-
ally threatened suicide. See Cloaninger ex rel. Estate of
Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009).
We emphasize, however, that each factual situation must be
examined in its totality, see Illinois v. Gates, 462 U.S. 213,
230-31 (1983), in order to make an exigency determination,
and that we cannot script categorical rulings when future cir-
cumstances are unknown. Here the bare fact that the Bellottes
had concealed weapon permits cannot justify this no-knock
entry. We agree with the district court that a "contrary holding
would issue a blanket rule permitting no-knock entries in all
cases involving alleged child pornographers who happen to
possess a weapon in their home." In a nation where suspicions
of crime do not cancel every claim of liberty, this goes too far.
E.
Qualified immunity is meant to protect against liability for
"bad guesses in gray areas." Maciariello v. Sumner, 973 F.2d
16 BELLOTTE v. EDWARDS
295, 298 (4th Cir. 1992). This was not a bad guess. Not a sin-
gle one of the officers’ proffered rationales provides a reason-
able, particularized basis to justify their conduct.2 The officers
contended at oral argument that a no-knock entry under these
circumstances is "so infrequent, so uncommon that it’s a gray
area." To the contrary, we face here an unfortunate exception
to the truism that "[t]he easiest cases don’t even arise." United
States v. Lanier, 520 U.S. 259, 271 (1997) (internal quotation
omitted). The absence of "a prior case directly on all fours"
here speaks not to the unsettledness of the law, but to the
brashness of the conduct. Pinder v. Johnson, 54 F.3d 1169,
1173 (4th Cir. 1995) (en banc). Because "a man of reasonable
intelligence would not have believed that exigent circum-
stances existed in this situation," Bailey v. Kennedy, 349 F.3d
731, 743 (4th Cir. 2003), we affirm the district court’s holding
that this no-knock entry violated the Bellottes’ clearly estab-
lished constitutional rights and does not warrant an award of
qualified immunity.
2
Our good colleague in dissent says the police believed there was a
child victim in the home at the time of the search. There was no objective
basis for that belief. Despite ample opportunity to do so, the officers
advanced not one word on appeal for any belief that a child victim was
in the house at the time of the search. The dissent points to nothing in the
appellants’ brief that even purports to suggest that Mr. Bellotte somehow
kept a child victim in the house with his family, and we cannot adopt an
argument too speculative for even the officers in this appeal to make.
Instead, they press the view that mere possession of the photograph and
the concealed weapon permits was sufficient to excuse the requirement to
knock and announce. As a result, we fully agree with our dissenting col-
league that the officers’ asserted rationales were not reasonable and that
"the officers’ fear was not sufficiently supported to justify their dynamic
no-knock entry into the Bellottes’ home." See Dissenting Opinion at 26.
As to our differences on the point of qualified immunity, Supreme
Court and circuit precedent clearly require a particularized reason to
believe the Bellotte family would pose a danger, something less generic
than the observations about concealed weapon permits and suicide risks
raised at the most general levels by the officers in this appeal.
BELLOTTE v. EDWARDS 17
III.
The officers argue next that they are entitled to qualified
immunity as to the Bellottes’ claim that they used weapons in
an unreasonable and excessive manner during the search of
the house.
A.
As a species of excessive force claims, excessive-use-of-
weapons allegations "are properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard." Graham
v. Connor, 490 U.S. 386, 388 (1989). As with no-knock entry
analysis, application of the reasonableness standard to
excessive-weapons claims "requires careful attention to the
facts and circumstances of each particular case." Id. at 396.
Factors relevant to that analysis include "whether the suspect
poses an immediate threat to the safety of the officers or oth-
ers, and whether he is actively resisting arrest or attempting
to evade arrest by flight." Id. We must make "allowance for
the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain,
and rapidly evolving—about the amount of force that is nec-
essary in a particular situation." Id. at 397.
In Taft v. Vines, 83 F.3d 681, 684 (4th Cir. 1996) (en banc),
this court specifically addressed the use of weapons in an
excessive-force context. We adopted the dissenting panel
opinion, which recognized the well-established rule that
"[i]nvestigating officers may take such steps as are reasonably
necessary to maintain the status quo and to protect their safety
during an investigative stop." Taft v. Vines, 70 F.3d 304, 320
(4th Cir. 1995) (Motz, J., dissenting) (quoting United States
v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988)). In particular,
"although ‘approaching a suspect with drawn weapons [is an]
extraordinary measure[ ], such [a] police procedure[ ] [has]
been justified in this circuit as a reasonable means of neutral-
18 BELLOTTE v. EDWARDS
izing potential danger to police and innocent bystanders.’" Id.
(quoting Taylor, 857 F.2d at 214) (alterations in original).
B.
Mrs. Bellotte claims that the officers entered her home and
bedroom in dramatic fashion with guns unreasonably drawn.
The district court noted the sleepy state of the household just
before the entry, and the fright that ensued "as the officers ran
up the stairs toward their bedrooms, screaming, and pointing
guns . . . ."
Of course "[t]his is not an experience to be wished on any-
one." Taft v. Vines, 70 F.3d at 321 (Motz, J., dissenting). But
"[t]he risk of harm to both the police and the occupants is
minimized if the officers routinely exercise unquestioned
command of the situation," as they did here. Michigan v. Sum-
mers, 452 U.S. 692, 702-03 (1981). Mrs. Bellotte and her
children faced a situation quite like that of Mrs. Unus and her
daughter in Unus v. Kane, 565 F.3d 103 (4th Cir. 2009),
where federal agents executing a search warrant entered a res-
idence with firearms drawn. Applying the Virginia constitu-
tion’s reasonableness requirement, we stated that "the officers
were reasonably entitled to believe that the drawing of weap-
ons was necessary in order to gain control of a fluid situation
and ensure the safety of all involved." Id. at 118. The officers
in Mrs. Bellotte’s residence acted reasonably for the same rea-
son.
The risk to their safety was illustrated when Mrs. Bellotte
reacted in threatening, if understandable, fashion. When she
heard voices and footsteps in the house, she testified that she
"bolted out of [her] bed," "threw open the doors" of her closet,
and reached for a gun with the intention to shoot. At that
point, despite substantial reason to fear for their own safety,
the officers restrained Mrs. Bellotte not with deadly force but
by wrestling her to the ground. There was no allegation that
they touched her with a weapon or threatened to use a weapon
BELLOTTE v. EDWARDS 19
against her. Such a "split-second judgment" in the face of an
immediate threat was a reasonable one. Graham, 490 U.S. at
397.
Thereafter, the officers continued to supervise the situation
in reasonable fashion. They placed Mrs. Bellotte in handcuffs
and covered her with a robe. They then took off the handcuffs
when it was clear that there was no danger and when the chil-
dren were secured and brought downstairs. The officers
allowed Mrs. Bellotte to change clothes under the supervision
of a female officer. That Mrs. Bellotte had to face such an
experience was most unfortunate, but we cannot say that the
officers used excessive force. They are entitled to qualified
immunity as to Mrs. Bellotte’s excessive-weapons claim, and
the district court is accordingly reversed on that ground.
C.
Plaintiffs also claim that the officers used excessive weap-
ons against the Bellottes’ daughter C.B. We have the deepest
sympathy for a twelve-year-old "awakened to the sight of four
or five men standing at the foot of her bed with flashing lights
and guns pointed at her." Brief of Appellees at 39. But the
officers had good reason to fear for their own safety upon
entering an unsecured room. And there is no evidence that the
officers who entered C.B.’s room kept their weapons drawn
after they realized who she was. Once they realized that she
did not "pose[ ] an immediate threat to the safety of the offi-
cers or others," Graham, 490 U.S. at 396, the officers used no
force or weapons at all on C.B. See also Unus, 565 F.3d at
118 ("Indeed, the record reflects that the . . . defendants drew
their weapons only long enough to ensure their safety and
control of the situation."). The defendants are accordingly
entitled to qualified immunity on that claim as well.
20 BELLOTTE v. EDWARDS
D.
Unlike his mother and sister, E.B. alleges that he felt "boots
in his back and a gun at the back of his head." Brief of Appel-
lees at 38-39. The officers contest E.B.’s description of the
encounter as a matter of fact, but recognize that such factual
disputes are not immediately appealable and do not contend
on appeal that the alleged conduct did not violate E.B.’s
clearly established constitutional rights. Brief of Appellants at
2 n.3. Because we have jurisdiction over the denial of a claim
for qualified immunity on summary judgment only "to the
extent that the official maintains that the official’s conduct did
not violate clearly established law," Winfield v. Bass, 106
F.3d 525, 529 (4th Cir. 1997) (en banc), we decline to review
the factual dispute, with the result that E.B.’s claim shall go
forward.3
IV.
On cross-appeal, the Bellottes challenge the district court’s
grant of summary judgment to the officers with respect to the
validity of the search warrant and the reasonableness of vari-
ous aspects of the search. This cross-appeal falters, however,
because there is no final order governing those issues from
which to appeal. The partial grant of summary judgment to
defendants was not a "final decision" for purposes of 28
U.S.C. § 1291, which "generally is one which ends the litiga-
tion on the merits and leaves nothing for the court to do but
execute the judgment." Dilly v. S.S. Kresge, 606 F.2d 62, 63
(4th Cir. 1979) (quoting Catlin v. United States, 324 U.S. 229,
3
In addition to their federal constitutional tort claims, the Bellottes
brought state-law claims for intentional infliction of emotional distress.
The district court denied the officers’ request for immunity under West
Virginia law, and the officers have not raised this issue on appeal. Thus,
we will not address it here. See United States v. Bowles, 602 F.3d 581, 583
n.1 (4th Cir. 2010) (noting that arguments not raised in the appellant’s
opening brief are waived).
BELLOTTE v. EDWARDS 21
233 (1945)). Here, "[t]here is obviously something else for the
district court to do but execute the judgment." Id.
The Bellottes nevertheless contend that because we have
appellate jurisdiction over the denial of qualified immunity
with respect to the no-knock entry and excessive-weapons
claims, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), we
should choose to exercise pendent jurisdiction over the cross-
appeal. Specifically, the Bellottes contend that "[i]t would be
in the interest of judicial economy to resolve all of these
issues on this appeal" because "[b]oth the Police Defendants’
appeal and the Plaintiffs’ cross-appeal deal with the constitu-
tionality of the search of the Bellotte residence and whether
the Police Defendants are entitled to qualified immunity."
Brief of Appellees at 2.
This argument misses the mark. For starters, "[p]endent
appellate jurisdiction is an exception of limited and narrow
application driven by considerations of need, rather than of
efficiency." Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th
Cir. 2006). Even if this were otherwise a proper case for pen-
dent jurisdiction, "[w]e are constrained by the language of the
Supreme Court as well as our own precedent from recogniz-
ing efficiency considerations as a basis for the exercise of
pendent appellate jurisdiction." Id.
Instead, we have recognized that such jurisdiction is proper
only when an issue "is (1) inextricably intertwined with the
decision of the lower court to deny qualified immunity or (2)
consideration of the additional issue is necessary to ensure
meaningful review of the qualified immunity question." Tay-
lor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996) (citing Swint
v. Chambers County Comm’n, 514 U.S. 35, 51 (1995). The
Bellottes have not argued that any of the issues on cross-
appeal are "inextricably intertwined with," or "necessary to
ensure meaningful review of," the denials of qualified immu-
nity below such that pendent appellate jurisdiction is now
appropriate. This omission is understandable. Our review of
22 BELLOTTE v. EDWARDS
the qualified immunity denials in no way requires an evalua-
tion of the claims that were dismissed on summary judgment
concerning the validity of the search warrant and the reason-
ableness of elements of the search other than the no-knock
entry and use of weapons. The appeal and the cross-appeal,
while sharing certain wholesale commonalities of fact (the
incidents leading up to and during the search of the Bellotte
residence) and law (the Fourth Amendment), nevertheless
present quite distinct factual and legal issues at the retail
level. See Renn v. Garrison, 100 F.3d 344, 352 (4th Cir.
1996) (denying pendent jurisdiction even when "many, or
even all, of the questions remaining in the case may well be
answered by [the] decision here"). We therefore dismiss the
cross-appeal for lack of jurisdiction.
V.
We recognize that police officers executing search warrants
must often make momentous decisions in minute amounts of
time. Qualified immunity provides critically important protec-
tion when a reasonable decision in the line of duty turns out
to be a bad guess. But when the officers failed to knock and
announce their presence under these particular circumstances,
they transgressed the boundaries identified by this circuit and
violated clearly established federal law. They may not now
seek the shelter of immunity for that claim. We affirm the
denial of qualified immunity with respect to the no-knock
entry and E.B.’s excessive-weapons claims and remand for
further proceedings. We also reverse the denial of qualified
immunity as to Mrs. Bellotte and C.B.’s excessive-weapons
claims, and dismiss the cross-appeal for want of jurisdiction.
AFFIRMED IN PART, REVERSED IN PART,
DISMISSED IN PART, AND REMANDED
WYNN, Circuit Judge, dissenting in part:
Qualified immunity gives law enforcement officers the
benefit of the doubt when preexisting law would not make
BELLOTTE v. EDWARDS 23
clear to a reasonable officer that his actions are unlawful. See
Hope v. Pelzer, 536 U.S. 730, 739 (2002). Officers are "liable
for transgressing bright lines" but not for making "bad
guesses in gray areas." Campbell v. Galloway, 483 F.3d 258,
271 (4th Cir. 2007) (quotation marks omitted).
In this case, police officers performed a no-knock entry into
the home of someone suspected of sexual exploitation of a
minor based on the officers’ belief that a child victim and
multiple firearms were in the home. I join the majority in con-
cluding that the no-knock entry here was unlawful. As a result
of this case, the law will be clearly established as to any simi-
lar entries in the future. I cannot conclude, however, that prior
Supreme Court or Fourth Circuit case law clearly established
that the no-knock entry was unlawful under the circumstances
these officers confronted. On that basis, I must respectfully
dissent.
When the officers executed the no-knock entry in 2007, it
was clearly established that they "must have a reasonable sus-
picion that knocking and announcing their presence, under the
particular circumstances, would be dangerous or futile, or that
it would inhibit the effective investigation of the crime by, for
example, allowing the destruction of evidence." Richards v.
Wisconsin, 520 U.S. 385, 394 (1997). It was also clearly
established that a reasonable suspicion is "a minimal level of
objective justification." United States v. Sokolow, 490 U.S. 1,
7 (1989).
The reasonableness of the officers’ asserted suspicion of
danger is assessed based upon the information the officers
possessed at the time they entered. Ker v. California, 374 U.S.
23, 41 n.12 (1963). Thus, it is critical to examine thoroughly
what the officers knew at the time of entry to determine
whether "pre-existing law [made] the unlawfulness [of the no-
knock entry] apparent." Hope, 536 U.S. at 739; see also
DiMeglio v. Haines, 45 F.3d 790, 804 (4th Cir. 1995) ("The
contours of the right must be sufficiently clear that a reason-
24 BELLOTTE v. EDWARDS
able official would understand that what he is doing violates
that right.").
Here, at the time of the no-knock entry, the officers knew
that Mr. Bellotte printed and attempted to purchase porno-
graphic pictures at a Wal-Mart on the morning of May 31,
2007. When asked by the cashier to inspect the photographs
according to store policy, Mr. Bellotte resisted and admitted
that some of the photographs contained nudity. After some
escalation, Mr. Bellotte surrendered the photographs, adamant
that they should be destroyed without inspection. While
shredding the photographs, a Wal-Mart employee was
alarmed by what appeared to be an adult’s penis beside a
young girl’s face. Three other Wal-Mart employees, including
two managers, also believed they saw a child in the photo-
graph, so they decided to call police.
At least two Virginia police officers also believed a child
was depicted in the photograph. According to the Virginia
officers’ police report, the photograph depicted "an approxi-
mately five to six year old white female being forced towards
what appeared to be a male adult penis." Using Wal-Mart’s
camera surveillance and credit card records, the Virginia offi-
cers determined that the man who attempted to purchase the
photographs was Mr. Bellotte.
In the later morning hours of May 31, the case was trans-
ferred to West Virginia law enforcement, and Detective Tracy
Lynn Edwards assumed the role of lead investigating officer.
After Detective Edwards concluded her assistance to federal
agents in an unrelated child pornography investigation, law
enforcement began investigating Mr. Bellotte for possession
of child pornography and suspected sexual exploitation of a
minor. The officers then determined that Mr. and Mrs. Bel-
lotte possessed concealed carry permits. The officers therefore
believed that the Bellottes had multiple firearms in their
home.
BELLOTTE v. EDWARDS 25
Believing that the situation was urgent, Detective Edwards
completed an application for a search warrant for the Bellot-
tes’ home around 7:30 P.M. on May 31. The suspected crime
cited in the search warrant application was not possession of
child pornography, but rather use of a minor in filming sexu-
ally explicit conduct, undoubtedly a form of sexual child
abuse. See W. Va. Code § 61-8C-2(a) ("Any person who
causes or knowingly permits, uses, persuades, induces, entices
or coerces such minor to engage in or uses such minor to do
or assist in any sexually explicit conduct shall be guilty of a
felony when such person has knowledge that any such act is
being photographed or filmed."). The magistrate reviewed and
signed the warrant between 8:30 and 9:00 P.M.
Detective Edwards believed execution of the search war-
rant presented a high risk of danger for essentially two rea-
sons:
I believed that the Bellottes had weapons. I also
believed that this child existed at their residence,
even though I didn’t know if it was a neighbor’s
child or if it was their child.
...
Child pornography—and I do feel that if, in fact,
someone were responsible for kidnapping a child,
that it would [be] a very dangerous situation.
Thus, Detective Edwards sought and obtained departmental
approval to use a tactical special operations team, which exe-
cuted a no-knock entry into the Bellottes’ home shortly after
10:00 P.M. on May 31.
At the time of entry, a magistrate had found probable cause
to believe that evidence of sexual child abuse existed in the
Bellottes’ home, and the officers reasonably believed that
multiple firearms were in the home because of the Bellottes’
26 BELLOTTE v. EDWARDS
concealed carry permits. Based on this information, Detective
Edwards and the other officers believed that executing this
search warrant presented a high risk of danger to the entering
officers and the child victim potentially located within.* If the
officers’ fear of danger had been reasonable, the no-knock
entry would have been lawful. Richards, 520 U.S. at 391. I
concur with the majority, however, and conclude that the offi-
cers’ fear was not sufficiently supported to justify their
dynamic no-knock entry into the Bellottes’ home. While the
officers’ no-knock entry was unlawful, no preexisting case
law clearly established the unlawfulness of their conduct
under the circumstances here such that a reasonable officer
would have known that he was "transgressing" a "bright line."
Campbell, 483 F.3d at 271.
Indeed, at the time of entry in this case, there was congres-
sional and judicial emphasis on combating the harm to vic-
tims of child pornography and sexual exploitation offenses.
See, e.g., New York v. Ferber, 458 U.S. 747, 757 (1982) ("The
prevention of sexual exploitation and abuse of children consti-
tutes a government objective of surpassing importance.");
United States v. MacEwan, 445 F.3d 237, 249-50 (3d Cir.
2006) ("The congressional findings underlying [18 U.S.C.]
§ 2251 repeatedly stress that child pornography is a form of
sexual abuse which can result in physical or psychological
harm, or both, to the children involved.") (internal quotation
*My fine colleagues in the majority suggest that the officers have
offered no "objective basis" in this appeal for a belief that a child victim
was in the house. The record on appeal contains a photograph showing
what two Virginia police officers and at least three West Virginia police
officers believed to be an adult’s penis beside the face of a very young
girl, evidence of Mr. Bellotte’s defensive and evasive behavior at the Wal-
Mart store, and Detective Edwards’ deposition testimony. This evidence,
most assuredly, provides an "objective basis" to believe that a child victim
could be in Mr. Bellotte’s home. In light of that belief, coupled with the
reasonable belief that Mr. Bellotte had firearms within reach, I cannot con-
clude that the unlawfulness of this no-knock entry would have been appar-
ent to any reasonable officer.
BELLOTTE v. EDWARDS 27
marks omitted); see also United States v. Matthews, 209 F.3d
338 (4th Cir. 2000) (rejecting a First Amendment bona fide
reporter defense to a charge of interstate transportation of
child pornography). With that legal backdrop, and given the
officers’ belief that a child victim and deadly weapons were
likely in the Bellottes’ home, I cannot conclude that in light
of preexisting law, it would have been clear to any reasonable
officer that a no-knock entry violated the Constitution.
The majority opinion contends that there is "nothing in the
appellants’ brief that even purports to suggest that Mr. Bel-
lotte somehow kept a child victim in the house with his fam-
ily." However, I find much in the briefs before this Court to
reflect the parties’ acknowledgement that the police officers
held such a belief. The officers’ brief states that the "Bellottes
alleged that the search warrant was invalid because . . . (5) the
search warrant was obtained by making a false statement."
Opening Brief at 5. Indeed, the Bellottes in their brief confirm
this allegation:
In any event, Detective Edwards, as had others,
wrongly concludes that this 35-year-old female is a
5 or 6-year-old child. Her imagination kicked in and
she concluded without any foundation that this may
be a kidnapped child being held in the non-existent
basement at [the Bellottes’ home].
. . . In spite of Detective Edwards’ knowledge of the
Bellotte children being at home, in spite of knowing
that child molesters rarely ever engage in their
nefarious schemes around their own children, Detec-
tive Edwards sought a search warrant.
Brief of Appellees at 14-15. The Bellottes’ brief further states
that Detective Edwards "defended her decision to carry out a
nighttime search with a SWAT team as justified by the fact
that Mr. and Mrs. Bellotte possessed concealed weapon per-
28 BELLOTTE v. EDWARDS
mits and the fact that the police did not know if the ‘child’
was in the house ‘or somewhere else.’" Id. at 16.
Additionally, this is an appeal from the denial of summary
judgment on qualified immunity. Summary judgment is not to
be granted unless "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affida-
vits, if any, show that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c). Upon reviewing, de
novo, whether the district court erred by not granting sum-
mary judgment, I would not limit the evidence to be consid-
ered to solely that which is presented in the appellants’ briefs.
In order to determine whether preexisting law made the
unlawfulness of this entry apparent, "the facts must be evalu-
ated from the perspective of a reasonable officer at the scene,
and the use of hindsight must be avoided." Orem v. Rephann,
523 F.3d 442, 448 (4th Cir. 2008) (quotation marks omitted).
The preexisting case law the majority cites does not estab-
lish that the circumstances confronted by these officers could
not support a reasonable suspicion of danger. See Ornelas v.
United States, 517 U.S. 690, 698 (1996) ("It is true that
because the mosaic which is analyzed for a reasonable-
suspicion or probable-cause inquiry is multi-faceted, one
determination will seldom be a useful ‘precedent’ for
another.") (citation and quotation marks omitted). United
States v. Grogins, 163 F.3d 795 (4th Cir. 1998), like a number
of cases on which the majority relies, is far removed from the
facts of this case. The suspect in Grogins was a notorious
drug dealer with a history of violence. Police performed a no-
knock entry into a suspected "stash house" where police
believed the suspect kept his drug inventory. Id. at 796. The
house, however, belonged to an acquaintance of the suspect.
When police entered they found a large quantity of drugs, but
the only person present was the acquaintance, who was
charged with possession with intent to distribute a controlled
substance. Id. at 797. Grogins did little to inform the officers
BELLOTTE v. EDWARDS 29
here whether a no-knock entry into a suspected child abuser’s
home—where the suspect, multiple firearms, and the child
victim were believed to be present—was lawful.
United States v. Singleton, 441 F.3d 290 (4th Cir. 2006), is
a similarly distinguishable drug case. There, the officers
obtained a no-knock search warrant predicated upon three
general categories of allegedly exigent circumstances: 1) the
suspect’s remote criminal history included violence; 2) a gen-
eralized concern about the tendency to violence in drug-
ridden neighborhoods; and 3) a generalized concern about the
violent tendencies of drug dealers. The court ultimately
upheld the search based on good–faith reliance on the war-
rant. However, the court suggested in dictum that the no-
knock entry might not have been justified because the defen-
dant’s remote criminal history was the only specific factor
that distinguished "this particular search from many others
that police conduct on a daily basis." Id. at 294. By contrast,
the officers in this case had particularized information leading
them to believe that child abuse was occurring in the
Bellottes’ residence, where multiple firearms were likely pres-
ent. The circumstances here are therefore a far cry from the
routine drug investigation in Singleton.
Gould v. Davis, 165 F.3d 265 (4th Cir. 1998), did little
more to put the officers in this case on notice that the circum-
stances they confronted were insufficient to justify a no-knock
entry. In Gould, police executed a no-knock entry into the
home of the plaintiff, the father of a suspected armed robber,
while the suspect was in police custody. Id. at 268. The no-
knock warrant was issued based on the violent nature of the
suspect’s crimes and probable cause to believe that handguns
would be found in the plaintiff’s house. Id. At the time of
entry, the officers knew that the plaintiff was not involved in
the armed robberies and that he had no criminal history. The
plaintiff was shot during entry and he sued under Section
1983. This Court held that the officers were not entitled to
qualified immunity because "any reasonable officer would
30 BELLOTTE v. EDWARDS
have rejected as inconsistent with clearly established law in
1992 . . . a belief that [the plaintiff] might use a weapon
because of the criminal propensities of his children." Id. at
271. This holding did not clearly establish the unlawfulness
of the no-knock entry here, where the suspect was believed to
be in the home and was under investigation for child abuse.
There is simply no case law that speaks to the presence or
absence of exigent circumstances in the context of a child
abuse investigation in which the child victim and multiple
firearms are believed to be in the suspect’s custody. Thus,
there were no "bright lines" demarcating the limits of a rea-
sonable suspicion of danger under these circumstances.
Campbell, 483 F.3d at 271. "If the law at [the time of entry]
was not clearly established, an official could not reasonably
be expected to anticipate subsequent legal developments, nor
could he fairly be said to ‘know’ that the law forbade conduct
not previously identified as unlawful." Harlow v. Fitzgerald,
457 U.S. 800, 818-19 (1982). Although the law is now settled
as to any similar entries arising in the future, I must conclude
that no preexisting law clearly established the unlawfulness of
this particular entry. Therefore, I would hold that the officers
are entitled to qualified immunity on the no-knock entry
claim.