Case: 22-10441 Document: 00517065342 Page: 1 Date Filed: 02/15/2024
REVISED February 15, 2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10441
____________ FILED
February 1, 2024
Karen Jimerson; JJ; JJ; XP; JP, Lyle W. Cayce
Clerk
Plaintiffs—Appellees,
versus
Mike Lewis, Lt,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-2826
______________________________
Before Stewart, Dennis, and Southwick, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
A search warrant showed the correct address for the target house, but
police officers executed the warrant at an incorrect address. The homeowner
brought suit against the officers under Section 1983. When denying summary
judgment on the issue of qualified immunity for the officer who led the
search, the district court held that fact questions prevented deciding the
issue. We find no genuine disputes of material fact. The disputed issue is
one of law. We conclude that this officer’s efforts to identify the correct
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residence, though deficient, did not violate clearly established law.
REVERSED and REMANDED for dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2019, at approximately 7:15 p.m., Waxahachie Police
Department (“WPD”) SWAT Team Commander Mike Lewis received a
call from a Drug Enforcement Administration (“DEA”) officer. The DEA
officer needed assistance executing a search warrant that night on a suspected
methamphetamine “stash” house located at 573 8th Street, Lancaster, Texas
(“target house”). The officer provided Commander Lewis with information
about a drug deal involving the target house. Lewis requested further
information, including pictures of the target house, whether “the location
was fortified,” whether “it appeared to have surveillance equipment,” and
whether “there were any exterior indicators on the property that children
may be present.” He also “requested identifying information on the
[methamphetamine] seller, as well as prior law enforcement history at that
address” involving the Lancaster Police Department (“LPD”).
In response, Lewis received pictures showing the front of the house
and was told there was “surveillance established at the location.” DEA
agents told Lewis that they saw no fortification or surveillance cameras at the
property or any evidence of children. The agents had no description of the
people occupying the target house.
Lewis entered the information into the WPD SWAT’s risk analysis
assessment worksheet, which scored the incident within the range for
“optional SWAT deployment.” Consequently, Lewis contacted the WPD
Chief and received approval to activate the SWAT team. He also gathered
information on the target house from the Dallas Central Appraisal District
website, including that the house was 744 square feet, was built in 1952, and
had a “large, deeply extending backyard.”
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Lewis then briefed SWAT officers at the WPD. The group decided
to have a six-member team enter the target house and a three-member team
enter the detached garage and backyard. Thereafter, Lewis received “real-
time intelligence that surveillance officers at the scene reported a truck
pulling a white box trailer [had] pulled up in front of the target location.” 1
When Lewis received a copy of the warrant, he confirmed the address of the
target house. The officers then finalized their preparations. LPD Officer
Zachary Beauchamp led the SWAT team to the target house. Beauchamp
was followed by the SWAT team vehicle, then Lewis in his marked patrol
unit, then the Waxahachie K9, and then several unmarked DEA vehicles.
Beauchamp was directed “to stop about a house before the target location,
so SWAT officers could make an approach on foot.”
When they arrived at the area, the SWAT team vehicle’s driver saw
Beauchamp’s vehicle stop abruptly, “causing him to believe [Beauchamp]
may have driven too far and stopped them too close to the target location.”
As the officers exited their vehicles, Beauchamp pointed to the house with
the truck and white trailer in front of it, and officers began their approach. As
the SWAT team began gathering on the front porch, however, Lewis realized
that the house did not look like the house from intelligence photos. The
SWAT team had assembled at 583 8th Street, not at the target house at 573
8th Street.
When Lewis looked one house to the left, he decided the layout of the
front of that house matched the one in the intel photos. Lewis noticed that
“[f]rom left to right, it had one large window, followed by the front entry
door, followed by a small window and then [four] larger windows.” He also
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1
The record indicates that this intelligence was not accurate. Later investigation
revealed that the white trailer was in front of 583 8th Street — not the target house.
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noticed that “[t]he driveway was . . . on the left side of the property,” and he
believed numbers on the front of the house read “573,” though the porch
light obscured his view. This house, it turns out, was also the wrong house.
The house Lewis identified was 593 8th Street, two doors down from the
target house.
Nevertheless, Lewis told the team that they were at the wrong house
and instructed them to “go to the house just to the left of the house where
they were.” That house was the home of plaintiffs Karen Jimerson, James
Parks, and their two young sons and daughter. Officers ran to the front of the
plaintiffs’ house, deployed a flashbang, broke the front windows, and
breached the door. The officers began a protective sweep and checked for
occupants. They “encountered two females” whom they told to get on the
ground. The officers then encountered an adult male, but before they could
direct him to get down, SWAT team members yelled “Wrong House!”
The SWAT team left the plaintiffs’ home and proceeded to the target
house. After the target house was secured, Lewis returned to the plaintiffs’
house, where he joined other DEA agents who were already checking on the
plaintiffs’ welfare. Plaintiff Karen Jimerson reported some pain in her side.
Lewis called an ambulance and she was taken to the hospital. Lewis also
coordinated with a glass company to make repairs and remained on the scene
until 1:30 a.m.
A WPD internal investigation determined that “reasonable and
normal protocol was completely overlooked” and the WPD Chief of Police
stated that these kinds of mistakes should not happen. Lewis was suspended
for two days without pay.
In September 2020, the plaintiffs brought this action under 42 U.S.C.
§ 1983. They alleged violations of the Fourth Amendment and several state
laws against 20 John Doe defendants. They later amended their complaint,
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naming each of the individuals in the WPD SWAT team who executed the
warrant, including Lewis. Shortly thereafter, the plaintiffs’ state-law tort
claims were dismissed. The defendants moved for summary judgment based
on qualified immunity, and the matter was referred to a magistrate judge for
pretrial management.
The magistrate judge recommended the district court grant qualified
immunity to all the officers, whether they entered the house or not. The
magistrate judge also concluded the plaintiffs failed to show that Lewis did
not make reasonable efforts to identify the target house.
The district court agreed with the magistrate judge’s analysis on
qualified immunity except with respect to whether Lewis made reasonable
efforts to identify the target house. The court found “a genuine dispute of
material fact regarding whether [Lewis] made the necessary reasonable effort
to identify the correct residence and whether his actions were ‘[in]consistent
with a reasonable effort to ascertain and identify the place intended to be
searched,’” quoting Maryland v. Garrison, 480 U.S. 79, 88 (1987). The court
denied Lewis qualified immunity. Lewis timely appealed.
DISCUSSION
Federal and state officials may be entitled to qualified immunity from
claims for money damages for their actions. Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011). To overcome this defense, a plaintiff needs to plead plausible
facts “(1) that the official violated a statutory or constitutional right, and (2)
that the right was ‘clearly established’ at the time of the challenged
conduct.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
If the district court denies qualified immunity either on a motion to
dismiss or on summary judgment, the defendant official may immediately
appeal under the collateral order doctrine. Behrens v. Pelletier, 516 U.S. 299,
307 (1996). Here, summary judgment was denied, and our review is de novo.
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Joseph ex rel. Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020). Review is
limited to considering issues of law, including the legal significance of factual
disputes identified by the district court. Id. at 331. That means “we may
evaluate whether a factual dispute is material (i.e., legally significant), but we
may not evaluate whether it is genuine (i.e., exists).” Id. (emphasis in
original). “Because the plaintiff is the non-moving party, we construe all
facts and inferences in the light most favorable to the plaintiff.” Melton, 875
F.3d at 261.
As a preliminary matter, Lewis argues the plaintiffs failed to plead and
argue that his efforts to identify the correct house were unreasonable. A
plaintiff seeking to overcome qualified immunity “must specifically identify
each defendant’s personal involvement in the alleged wrongdoing.” Thomas
v. Humfield, 32 F.3d 566, 1994 WL 442484, at *5 (5th Cir. 1994). The
plaintiffs complied with the need for specificity by alleging in the complaint
that Lewis “was the person in charge” of the mistaken raid on their home,
and in their summary judgment arguments that Lewis was the “overall leader
of [the] misconduct” and that he overlooked “reasonable and normal
protocol.”
As to the merits, Lewis does not challenge the district court’s analysis
of whether defendants violated the plaintiffs’ rights under federal law. The
Fourth Amendment provides that individuals have a right “to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. CONST. amend. IV. The Supreme Court has held that
officers must make “reasonable effort[s] to ascertain and identify the place
intended to be searched” in order to comply with the Fourth Amendment.
Garrison, 480 U.S. at 88. To be clear about an occasional irrelevant addition
to the proper analysis, we do not consider whether the officer’s actions were
“objectively unreasonable.” That quoted standard is a “vestige of older
caselaw that predates the Supreme Court’s current test.” Parker v. LeBlanc,
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73 F.4th 400, 406 n.1 (5th Cir. 2023). In another precedential rejection of an
“objectively unreasonable” component of qualified immunity, we held there
is no “standalone ‘objective reasonableness’ element to the Supreme
Court’s two-pronged test for qualified immunity.” Baker v. Coburn, 68 F.4th
240, 251 n.10 (5th Cir. 2023).
We evaluate the reasonableness of Lewis’s actions because the
plaintiffs’ claims arise under the Fourth Amendment. The district court
denied qualified immunity because the court found a “genuine dispute of
material fact regarding whether [Lewis] made the necessary reasonable
efforts to identify the correct residence.” As we stated earlier, we cannot
review a district court’s determination that a factual dispute is genuine.
Bartlett, 981 F.3d at 331. We are to decide, though, legal significance, i.e.,
whether disputed facts are material to resolution of the case. Id.
The district court did not find evidentiary disputes about what Lewis
and others did before entering the incorrect house. The court stated that the
central dispute was whether those actions constituted “necessary reasonable
efforts.” Certainly, unlike here, exactly what an officer did may sometimes
be factually unclear. A court’s determination of reasonableness under the
Fourth Amendment, though, “‘is predominantly an objective inquiry.’” al-
Kidd, 563 U.S. at 736 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 47
(2000)). The circumstances are to be “viewed objectively” and a
determination made of whether they “justify” the search. Id. (quoting Scott
v. United States, 436 U.S. 128, 138 (1978)).
Consequently, as a legal issue for our de novo review, we consider
whether Lewis’s conduct violated clearly established law. See id. at 325–26.
Clearly established law is determined by reference to “controlling
authority[,] or a robust consensus of persuasive authority.” Delaughter v.
Woodall, 909 F.3d 130, 139 (5th Cir. 2018) (citation omitted). The keystone
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in this analysis is fair warning. Id. at 139–40. To overcome qualified
immunity, plaintiffs must cite “a body of relevant case law [] in which an
officer acting under similar circumstances . . . was held to have violated” a
defendant’s constitutional rights. Bartlett, 981 F.3d at 330 (quotation marks and
citations omitted). “While there need not be ‘a case directly on point,’ the
unlawfulness of the challenged conduct must be ‘beyond debate.’” Id.
(quoting al–Kidd, 563 U.S. at 741).
Compliance with the Fourth Amendment requires a law enforcement
officer’s “reasonable effort[s] to ascertain and identify the place intended to
be searched.” Garrison, 480 U.S. at 88. In applying that general principle,
the district court relied on two opinions. One was a nonprecedential opinion
of this court. Rogers v. Hooper, 271 F. App’x 431 (5th Cir. 2008). The other
was nonprecedential in the Fifth Circuit because it was issued by a different
circuit court of appeals. Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir.
1995). 2 The plaintiffs do not cite any other authority.
In Rogers, we affirmed a grant of qualified immunity. Rogers, 271 F.
App’x at 436. Officers secured a warrant to search a suspected drug house.
Id. at 432. Before executing the warrant, officers drove by the target house
to confirm its location. Id. They saw a maroon vehicle parked in front of the
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2
A nonprecedential opinion “cannot be the source of clearly established law for
qualified immunity analysis.” Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019).
Nevertheless, such opinions may be used to illustrate clearly established law. Bartlett, 981
F.3d at 341 n.105; see also Cooper v. Brown, 844 F.3d 517, 525 n.8 (5th Cir. 2016). As for
Hartsfield, “[w]e have not previously identified the level of out-of-circuit consensus
necessary to put the relevant question ‘beyond debate’” and to constitute clearly
established law. Morrow v. Meachum, 917 F.3d 870, 879 (5th Cir. 2019) (quoting al-Kidd,
563 U.S. at 741). It is unlikely that one out-of-circuit case is sufficient.
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target house. Id. The officers then briefed their team on the location of the
home and developed a plan for executing the warrant. Id. The night of the
warrant’s execution, however, the maroon vehicle was parked in front of the
house next door to the target house. Id. Officers broke into that house before
ultimately realizing their mistake. Id.
We emphasized that the officers made several efforts to identify the
correct residence, including conducting “initial surveillance of the house
shortly before the warrant was executed, though [the officers] increased the
chance for mistake by approaching the house in the opposite direction than
they would use later.” Id. at 435. There were differences in appearance
between the mistaken house and target house, but “those differences were
less noticeable at night.” Id. Further, we acknowledged the confusion that
arose from the fact that “a car that earlier had been thought to be in front of
the house to be searched was instead in front of the [p]laintiffs’ home when
the search began.” Id. “[T]he officers made reasonable efforts, though
obviously insufficient ones, to identify the correct house.” Id.
In Hartsfield, the Eleventh Circuit determined that an officer was not
entitled to qualified immunity when he executed a warrant at the wrong
residence. 50 F.3d at 956. The officer had been to the proper residence the
day before. Id. at 951. On the day of the raid, though, he did little to ensure
he was leading officers to the correct address:
As it is uncontroverted that the numbers on the houses are
clearly marked, and that the raid took place during daylight
hours, simply checking the warrant would have avoided the
mistaken entry. Moreover, evidence before the court showed
that the houses were located on different parts of the street,
separated by at least one other residence, and that their
appearances were distinguishable.
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Id. at 955. “[S]earching the wrong residence when [the officer] had done
nothing to make sure he was searching the house described in the warrant”
violated clearly established law. Id.
The dissent argues Hartsfield and Rogers constitute clearly established
law that distinguishes Lewis’s actions as objectively unreasonable under the
fair warning analysis. Even if these two nonprecedential opinions were
indicative of clearly established law, they would not support that Lewis
violated that law. Lewis erred, but he made significant efforts to identify the
correct residence. As the district court summarized, Lewis
(1) reviewed the search warrant; (2) conducted additional
searches on the target residence through the Dallas Central
Appraisal District website; (3) ran a computerized criminal
history search of the occupant of the target residence; (4)
debriefed with DEA agents twice; (5) was provided with “real-
time intelligence that surveillance officers at the scene reported
a truck pulling a white box trailer just pulled up in front of the
target location and stopped;” and (6) observed the home and
took note of the front windows, driveway, and the numbers on
the front of the home in an attempt to confirm the residence as
being the target location.
To elaborate on that final point, Lewis was careful to confirm the house had
the proper arrangement and size of windows, but only later became aware
that those window features were shared by the plaintiffs’ home. Moreover,
Lewis’s confusion was compounded by misleading intelligence. When
officers arrived, the white trailer was not parked in front of the target house.
Lewis correctly identified that fact, but then erred in redirecting the officers.
Lewis was far more careful than the officers in the two opinions cited to us as
showing he violated clearly established law.
The “central concern” when evaluating the immunity question “is
whether the official has fair warning that his conduct violates a constitutional
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right.” Delaughter, 909 F.3d at 140. That means the “dispositive question
is whether the violative nature of particular conduct is clearly established.”
Morrow, 917 F.3d at 875 (emphasis in original) (quotation marks and citation
omitted). Here, the plaintiffs have not cited authority demonstrating that
Lewis’s conduct violated clearly established law.
We REVERSE the district court’s denial of summary judgment to
Lewis and REMAND in order for the district court to dismiss this suit.
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James L. Dennis, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion. The district court
properly denied qualified immunity to Lieutenant Mike Lewis, commander
of the Waxahachie Police Department (WPD) SWAT team. The Jimersons’
Fourth Amendment claim against Lewis is based on his failure to take
sufficient steps to ensure that his team executed a no-knock warrant at the
correct address. The district court found that factual disputes as to the
reasonableness of Lewis’ efforts to identify the target house precluded
granting qualified immunity to Lewis. While I agree with the majority’s
finding that there are no factual disputes as to Lewis’ actions in leading the
SWAT team to the wrong residence, I disagree that Lewis is entitled to
qualified immunity 1 under clearly established law.
Based on the undisputed facts in this case, Lewis failed to use the
intelligence he received from the Drug Enforcement Administration (DEA)
that would have easily allowed him to direct the SWAT team to the target
house. The DEA alerted Lewis that the house number was painted on the
curb and affixed to a wooden pole on the deck, and that the target house was
the thirteenth one on the block. Despite having this information, Lewis did
not even check the number of the house before instructing the SWAT team
to execute the warrant on the Jimersons’ home—separated from the target
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1
It’s worth noting that one of our colleagues recently suggested that “the Supreme
Court’s original justification for qualified immunity—that Congress wouldn’t have
abrogated common-law immunities absent explicit language—is faulty because the 1871
Civil Rights Act expressly included such language.” Rogers v. Jarrett, 63 F.4th 971, 980 (5th
Cir. 2023) (Willett, J., concurring); see also Alexander A. Reinert, Qualified Immunity’s
Flawed Foundation, 111 CAL. L. REV. 201, 207–08 (2023) (arguing that “the problem with
current qualified immunity doctrine is not just that it departs from the common law
immunity that existed when Section 1983 was enacted,” but also that “no qualified
immunity doctrine at all should apply in Section 1983 actions, if courts stay true to the text
adopted by the enacting Congress and other evidence of legislative intent”).
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house by more than one 2 residence—by deploying a flash bang, breaking all
their front windows using the “break and rake” technique, and forcing open
the front door. Lewis wrote in an incident report that he “believed” the
numbers on the Jimersons’ home to be that of the target house, despite the
fact that he admitted his view was obscured because the Jimersons “had a
brightly glowing porch light directly above them that was causing a reflection
on the siding of the house.” Regardless of Lewis’ ability to see the numbers
on the home, the search warrant alerted him that the target house number
was written on the curb in front of the house and on a wooden pole supporting
the house—not on the front of the house like at the Jimerson residence. Even
more glaring are the notable physical distinctions between the two houses:
while there is a prominent wheelchair ramp that protrudes from the Jimerson
house with railings that appear to be waist-high, the target house had no such
ramp and featured a chain-link fence around the perimeter of the property—
differences evident from the photographs of the target house provided to
Lewis before the execution of the warrant.
Though it is undisputed that Lewis violated the Jimersons’ Fourth
Amendment rights in executing a SWAT-style entry into their home without
a warrant, the majority finds that the Jimersons’ claim fails because the
unlawfulness of Lewis’ actions were not clearly established law. 3 Specifically,
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2
As the majority opinion acknowledges, the SWAT team initially assembled on the
front porch of the wrong house. After Lewis recognized that the SWAT team was at the
wrong house, he instructed the SWAT team to execute the warrant on the Jimerson
residence, which was in the opposite direction of the target residence.
3
We have sometimes described the second prong of the qualified immunity
analysis as an inquiry into whether an official’s “actions were objectively unreasonable in
light of clearly established law.” See, e.g., Roque v. Harvel, 993 F.3d 325, 334 (5th Cir. 2021)
(Willett, J.). The different phrasing is of no moment because, of course, violating a clearly
established right is objectively unreasonable. See Ziglar v. Abbasi, 582 U.S. 120, 151 (2017);
see also Anderson v. Creighton, 483 U.S. 635, 653 (1987) (“Reliance on the objective
reasonableness of an official’s conduct, as measured by reference to clearly established
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the majority concludes that there is not enough legal authority supporting the
Jimersons’ contention that Lewis’ efforts to locate the target residence were
constitutionally deficient. While the majority is certainly correct that “[a]
clearly established right is one that is sufficiently clear that every reasonable
official would have understood that what he is doing violates that right,”
Mullenix v. Luna, 577 U.S. 7, 11 (2015), they nonetheless unfairly limit the
legal authority the Jimersons may rely on in rebutting Lewis’ assertion of
qualified immunity. The “focus” of the qualified immunity analysis is
whether the officer had “fair notice” that his conduct was unlawful, and here
the clearly established law gave Lewis ample warning of the constitutionally
sufficient efforts required to ensure he directed the SWAT team to the
correct residence. Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (noting that
the “focus” of qualified immunity analysis is “whether the officer had fair
notice that her conduct was unlawful”).
Contrary to the majority’s assertion that there is no clearly established
law that would have put Lewis on notice of the unlawfulness of his actions,
the Supreme Court has stated that officers must make “a reasonable effort to
ascertain and identify the place intended to be searched within the meaning
of the Fourth Amendment.” Maryland v. Garrison, 480 U.S. 79, 88 (1987).
In Garrison, officers mistakenly executed a search warrant on the wrong
apartment because they believed that the third floor of an apartment complex
contained only one rather than two apartments. Id. There, the Supreme
Court found that the officers made a reasonable effort to identify the correct
apartment because “[t]he objective facts available to the officers at the time
suggested no distinction between McWebb’s apartment and the third-floor
premises.” Id. Specifically, those officers made a “reasonable effort” to
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law[.]”); Horvath v. City of Leander, 946 F.3d 787, 800 (5th Cir. 2020) (Ho, J., concurring)
(quoting Pearson v. Callahan, 555 U.S. 222, 232 (2009)).
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identify the target residence where they: (1) went to the premises to see if it
matched the description given by an informant; (2) checked with the
Baltimore Gas and Electric Company to ascertain in whose name the third
floor apartment was listed; and (3) checked with the Baltimore Police
Department to make sure that the description and address of the suspect
matched the information provided by the informant. Id. at 81–82, 85–86 n.10.
Moreover, Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995) “aptly
illustrates the established right” at issue in the Jimersons’ claim against
Lewis. See id. at 955 (recognizing as “clearly established law” that “absent
probable cause and exigent circumstances, a warrantless search of a residence
violates the Fourth Amendment, unless the officers engage in reasonable
efforts to avoid error”); see also Cooper v. Brown, 844 F.3d 517, 525 (5th Cir.
2016) (explaining that where a case “does not constitute clearly established
law for purposes of QI” it may still “aptly illustrates the established right”).
In Hartsfield, the Eleventh Circuit denied qualified immunity where an
officer “had the warrant in his possession” yet “did not check to make sure
he was leading the other officers to the correct address” Hartsfield, 50 F.3d
at 955. There, the officers’ efforts to identify the target of the search warrant
were insufficient where: (1) the numbers were clearly marked on the houses;
(2) the houses were separated by at least one other residence; and (3) the
houses were physically distinguishable; (4) there were no exigent
circumstances; and (5) the raid occurred during the daytime. Id. at 952–55.
Here, similarly, the numbers on the houses were clearly marked (despite it
being nighttime), the houses were separated by at least one residence and
were physically distinguishable, and there were no exigent circumstances.
While Lewis arguably did more to identify the correct residence than the
officer in Hartsfield, who “did nothing to make sure he was leading the
officers to the correct residence,” Lewis nonetheless could have easily
avoided the mistaken entry by “simply checking” the house number or using
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other information at his disposal to identify the correct residence. Id. at 955.
In light of Hartsfield’s guidance interpreting the clearly established law in
Garrison, the Jimersons rebutted Lewis’ assertion of qualified immunity.
Our unpublished decision in Rogers v. Hooper, 271 F. App’x 431 (5th
Cir. 2008) also supports the denial of qualified immunity to Lewis. In Rogers,
we affirmed a grant of qualified immunity to an officer who mistakenly led his
team to the wrong house where: (1) the two houses were next to each other;
(2) the officer had previously been at the correct house twice; and (3) the
minor differences between the houses were “less noticeable at night.” Here,
in contrast, the houses were not next to each other, and Lewis could have
easily checked the number of the target house that was painted on the curb
and affixed to a wooden beam supporting the home’s porch. Moreover, the
obvious physical distinctions between the houses would have been noticeable
even at night; while the target house had a chain-link fence around it, the
Jimerson house did not have any fence and featured a wheelchair ramp with
waist-high railings along it. Because Lewis did not take the same steps 4 as the
officer in Rogers to identify the correct residence, our nonprecedential case
law supports the denial of qualified immunity.
In light of the efforts identified as adequate by the Supreme Court in
Garrison and elaborated on by circuit courts, Lewis had “fair notice” of the
minimum efforts required to comply with the Fourth Amendment when
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4
Notably, the officers in Rogers and Garrison each previously visited the correct
houses as part of their efforts to identify the target of the search warrant, whereas here
Lewis made no such attempts. See Rogers, 271 F. App’x at 433–43 (noting that the officers
“had been at the correct house at least twice before”); Garrison, 480 U.S. at 86 n.10 (“The
officer went to [the target residence] and found that it matched the description given by the
informant.”). WPD Police Chief Wade Goolsby even testified that after this incident, the
WPD implemented additional procedures requiring officers to “get[] eyes on the location
so that [the officer] not only sees the target, but the surrounding homes” before executing
a search warrant.
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identifying a house for the purposes of executing a search warrant. Brosseau,
543 U.S. at 198; see also Hope v. Pelzer, 536 U.S. 730, 731 (2002) (“Qualified
immunity operates to ensure that before they are subjected to suit, officers
are on notice that their conduct is unlawful.”). As announced in Garrison and
elucidated in Rogers and Hartsfield, it is “beyond debate” that Lewis’ efforts
to identify the target house were constitutionally deficient. Ashcroft v. al–
Kidd, 563 U.S. 731, 741 (2011). The panel should affirm the district court’s
denial of Lewis’ assertion of qualified immunity.
17