concurring in the judgment.
Though I disagree with much of the majority’s reasoning, I respectfully concur in the judgment of the court.
*767The majority correctly holds that police officers must exercise a community care-taking function, as described in United States v. King, 990 F.2d 1552, 1560 (10th Cir.1993). However, as the King court noted, there are limits on the exercise of this function, as with any police function:
[A] person’s Fourth Amendment rights are not eviscerated simply because a police officer may be acting in a nonin-vestigatory capacity for “[i]t is surely anomalous to say that the individual ... [is] fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” [Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) ].... Whether the seizure of a person by a police officer acting in his or her noninvestigatory capacity is reasonable depends on whether it is based on specific articulable facts and requires a reviewing court to balance the governmental interest in the police officer’s exercise of his or her “community care-taking function” and the individual’s interest in being free from arbitrary government interference.
Id.
Officers Adams and Prahm argue that they reasonably believed that Winters posed a danger to himself and others due to his erratic behavior. According to the district court’s findings of fact, however, nearly all of Winters’s erratic behavior surfaced when the officers persisted in their efforts to communicate with him and began their efforts to gain entry into his car. The district court concluded that, at the time Winters asked to be left alone, “Adams had no justification either to arrest Winters or to force his way into Winters’s vehicle. Nevertheless, Adams, and later Prahm, continued their efforts to identify Winters and to persuade him to get out of the car.”
We must accept a district court’s findings of fact unless we determine that they are clearly erroneous. See Milligan, v. City of Red Oak, Ia., 230 F.3d 355, 359 (8th Cir.2000) (stating standard of review). I do not believe the district court erred in describing the chronology of Winters’s increasingly erratic behavior. Nor does the majority state that the district court’s findings of fact on this point are clearly erroneous. Nevertheless, the majority would find that Adams and Prahm were justified in continuing to pester Winters, and in attempting to break into his car. In my opinion, the officers’ actions, which were not based on “specific articulable facts,” King, 990 F.2d at 1560, were unreasonable. I would affirm the district court on the illegal seizure question.
I also disagree with the majority’s reason for granting qualified immunity for the illegal seizure claim (part II-C). Specifically, I disagree with the majority’s view that the law on community caretaking is not clearly established. As we recently noted, “[o]ur circuit subscribes to a ‘broad view’ of what constitutes clearly established law; ‘[i]n the absence of binding precedent, a court should look to all available decisional law, including decisions of state courts, other circuits and district courts.’ ” Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir.2001) (quoting Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir.1998)). I believe that the law concerning the community caretaking function and its limitations was clearly established in King and other circuit decisions.
That said, I believe that the officers are entitled to qualified immunity. The facts of this case present a close call. There is, in my opinion, a fine line between the officers’ conduct that did not violate Winters’s Fourth Amendment rights and their conduct that did violate his rights. In the end, I do not believe the officers knowingly *768crossed that line, see Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and therefore I agree they are entitled to qualified immunity.12
. I question, however, why we are considering qualified immunity at all at this stage in the proceedings. The officers did not raise qualified immunity as a defense until trial. Qualified immunity is an immunity from suit, rather than a defense to liability. See Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). As such, it should be decided by a motion to dismiss or for summary judgment prior to discovery. Id. The Fifth Circuit has determined that a failure to raise qualified immunity prior to trial does not constitute a waiver of the qualified immunity defense. Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993). But when qualified immunity is discussed alongside the merits, the two become confused, and the power of the qualified immunity defense is diluted.