UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2177
ESPERANZA GUERRERO,
Plaintiff - Appellee,
and
MARIA MUNGUIA; JUAN GUERRERO; JG, Minor; KG, Minor; JJG, Minor;
MG, Minor,
Plaintiffs,
v.
DAVID L. MOORE, in his official and individual capacity,
Defendant - Appellant,
and
CHARLIE T. DEANE, in his official capacity; LUIS POTES, in his
official and individual capacity; ADAM HURLEY, in his official
and individual capacity; DOES 1-6, in their official and
individual capacities; ROES 1-5, in their official and
individual capacities; PRINCE WILLIAM COUNTY POLICE DEPARTMENT;
PRINCE WILLIAM COUNTY; MATTHEW CAPLAN, in his official and
individual capacity; KAREN MUELHAUSER, in her official and
individual capacity; DOES 1-5, in their official and individual
capacities,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cv-01313-JCC-TRJ)
Submitted: July 18, 2011 Decided: August 4, 2011
Before MOTZ, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela L. Horan, County Attorney, Jeffrey Notz, Assistant County
Attorney, Prince William, Virginia, for Appellant. Christina G.
Sarchio, Haven G. Ward, Stephen A. Vaden, PATTON BOGGS LLP,
Washington, DC; Cesar Perales, Diana Sen, Jose Perez, LATINO
JUSTICE/PUERTO RICAN LEGAL DEFENSE FUND, New York, New York, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sergeant David L. Moore appeals the district court’s
partial denial of his motion for summary judgment on the basis
of qualified immunity. We affirm.
“Qualified immunity protects government officials from
liability for violations of constitutional rights that were not
clearly established at the time of the challenged conduct.”
Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 275 (4th
Cir. 2011) (internal quotation marks, brackets, and citations
omitted). Qualified immunity “is an immunity from suit rather
than a mere defense to liability; and like an absolute immunity,
it is effectively lost if a case is erroneously permitted to go
to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Thus, to the extent it turns on an issue of law, a district
court’s denial of a claim of qualified immunity is immediately
appealable despite the absence of a final judgment. Witt, 633
F.3d at 275. But, in hearing such an appeal, we “may not
reweigh the record evidence to determine whether material
factual disputes preclude summary disposition.” Id. (internal
quotation marks and citation omitted).
The Fourth Amendment to the Constitution protects
individuals from unreasonable searches and seizures. “Except in
such special situations [as consent or exigent circumstances],
we have consistently held that the entry into a home to conduct
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a search or make an arrest is unreasonable under the Fourth
Amendment unless done pursuant to a warrant.” Steagald v.
United States, 451 U.S. 204, 211 (1981). “[A]ny physical
invasion of the structure of the home, by even a fraction of an
inch, [is] too much.” Kyllo v. United States, 533 U.S. 27, 37
(2001) (internal quotation marks omitted).
Moore contends that he did not violate the Fourth
Amendment rights of Esperanza Guerrero when he entered her home
in an effort to serve a judicially-issued misdemeanor summons on
Antonia Munguia. He fails to persuade us, however, that the
summons was the functional equivalent of an arrest warrant for
Fourth Amendment purposes. Summonses confer more limited
authority than arrest warrants; notably, Moore lacked the
authority to take Munguia into custody upon service of the
summons. Moore fails to cite any persuasive Fourth Amendment
precedent that permits a government official to enter a dwelling
to serve a non-custodial misdemeanor summons. Indeed, the
latest relevant opinion of the Virginia Attorney General
concludes that an officer lacks such authority. 2003 Va. Op.
Att’y Gen. 64, 2003 WL 23208766 (Sept. 16, 2003) (“[A]bsent
consent of a dwelling owner, a law-enforcement officer must
obtain a warrant before entering a dwelling for the purpose of
serving a summons for a misdemeanor.”).
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The qualified immunity analysis does not terminate at
the finding of a constitutional violation; rather we must
discern whether the right at issue was “clearly established” at
the time of the violation. “For a constitutional right to be
clearly established, its contours must be sufficiently clear
that a reasonable official would understand that what he is
doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739
(2002) (internal quotation marks omitted). Thus, qualified
immunity extends “ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986).
We find that the right at issue was clearly
established at the time of the incident. Supreme Court
precedent plainly stated the need for a warrant or an exception
to the warrant requirement for an officer to enter a dwelling to
conduct a search or to make an arrest. Payton v. New York, 445
U.S. 573, 586 (1980) (“It is a ‘basic principle of Fourth
Amendment law’ that searches and seizures inside a home without
a warrant are presumptively unreasonable.”). The presence of an
earlier opinion of the Virginia Attorney General, see 1982-83
Va. Op. Att’y Gen. 18, 1982 WL 175892 (Aug. 20, 1982), does not
upset that precedent, especially in light of the more recent
superseding statement of the law by the same office.
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Accordingly, we affirm the district court’s partial
denial of summary judgment on the basis of qualified immunity.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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