United States Court of Appeals
For the First Circuit
No. 07-1623
CHRISTOPHER DEMAYO,
Plaintiff, Appellant,
v.
ROBERT NUGENT and JEFFREY LUGAS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Chief Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Christopher DeMayo, pro se, was on brief for appellant.
Brian J. Rogal was on brief for appellees.
February 22, 2008
STAHL, Senior Circuit Judge. Plaintiff-appellant
Christopher DeMayo appeals from a district court's order denying
his motion for partial judgment on the pleadings and granting a
dismissal on the basis of qualified immunity in favor of
Massachusetts State Police (State Police) Troopers Robert Nugent
and Jeffrey Lugas, Defendant-appellees. DeMayo's complaint alleged
that Nugent and Lugas violated his right to be free from
unreasonable searches under the Fourth Amendment of the United
States Constitution. See Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971). Although the district court determined that
Nugent and Lugas infringed DeMayo's constitutional rights by
entering his home without a search warrant or exigent
circumstances, it nevertheless dismissed DeMayo's claims on the
basis of qualified immunity. Because we hold that the district
court erred in its analysis of whether the right that Nugent and
Lugas violated was clearly established, we reverse the decision
below, render partial judgment in favor of DeMayo, and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
In reviewing the district court's decision to deny
judgment on the pleadings in favor of DeMayo, we review the factual
allegations in the light most favorable to Nugent and Lugas, the
non-moving parties. Aponte-Torres v. Univ. of P.R., 445 F.3d 50,
55 (1st Cir. 2006). Conversely, in reviewing the district court's
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order dismissing DeMayo's claims, we examine the record in the
light most favorable to DeMayo, the plaintiff. See Rodriguez-Ortiz
v. Margo Caribe, Inc., 490 F.3d 92, 94 (1st Cir. 2007); Pagan v.
Calderon, 448 F.3d 16, 30-31 (1st Cir. 2006).1 We conduct our
review of each of these questions de novo. See Local 791, United
Food & Commercial Workers Union v. Shaw's Supermarkets, Inc., 507
F.3d 43, 46 (1st Cir. 2007) (judgment on the pleadings); Pagan, 448
F.3d at 30 (dismissal). The salient facts, set forth below, are
taken from the parties' pleadings.2 See Aponte-Torres, 445 F.3d at
54-55 ("A Rule 12(c) motion, unlike a Rule 12(b)(6) motion,
implicates the pleadings as a whole.")
On May 6, 2004, at around 8:00 a.m., a United Parcel
Service (UPS) employee notified the State Police that a suspicious
package had arrived at UPS's Lynnfield facility. The package was
addressed to an individual named "Debbie Moore," was entrusted to
the care of "Chris DeMayo," and was sent by "Susan Kelty." Shortly
thereafter, Nugent, in his capacity as a member of the Drug
Enforcement Administration (DEA) Task Force Group #3, traveled to
1
Nugent and Lugas never actually filed an independent motion
to dismiss, merely requesting dismissal in their response to
DeMayo's motion under Rule 12(c). Nevertheless, the standard of
review remains unchanged. See Gonzalez-Gonzalez v. United States,
257 F.3d 31, 37 (1st Cir. 2001).
2
The court relies heavily upon two documents attached to
DeMayo's pleadings, namely Nugent's Report of Investigation and
Nugent's Application for Search Warrant and its corresponding
affidavit. See Fed. R. Civ. P. 10(c).
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the UPS facility to investigate the report. There he was joined by
other officers. Nugent indicated that his suspicions were raised
by the box's heavy taping, its California return address, and the
lack of a requirement for a signature. At approximately 9:15 a.m.,
a drug-sniffing dog under the supervision of the State Police
signaled the presence of narcotics in the box. Later, at 9:55
a.m., DEA Special Agent Robert Donovan, acting in an undercover
capacity, called Kelty to confirm that she wished UPS to deliver
the package. Kelty responded that it was a "very important
package" for her terminally ill sister, whose condition
necessitated delivery rather than pickup.
At approximately 11:20 a.m., Donovan, disguised as a UPS
employee and accompanied by a number of other task force officers,
including Nugent and Lugas, conducted a controlled delivery to
DeMayo's residence. Gary DeMayo,3 the plaintiff's father, opened
the door, remaining in the threshold. Indicating that he could
accept the package for Chris DeMayo, he began to sign his name when
provided with a signature sheet. While Gary DeMayo was still in
the process of signing for the package, Donovan gave a
"prearranged" signal for the arrest team to advance to the home.
At this point, Gary DeMayo had only signed his first name. Nugent
and Lugas brushed by Gary DeMayo, entered the residence, and then
3
For clarity, we will continue to refer to Gary DeMayo by his
first and last names.
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proceeded to conduct a brief protective sweep of the house lasting
approximately fifteen to twenty seconds. During this sweep, Lugas
encountered a "frail looking woman," later identified as Debbie
Moore, DeMayo's mother and the intended recipient of the package,
"exiting a bathroom on the second floor of the house."
When confronted by the now-revealed officers, Gary DeMayo
refused to identify himself. He informed the officers that he had
no identification on-hand, as he was only residing at the home
temporarily. He refused to accept the package and stated that he
would not sign for it, despite his earlier acquiescence. Nugent's
report indicates that, after the officers' entry into the home,
Gary DeMayo became "belligerent and uncooperative." Ultimately,
the officers issued Gary DeMayo a criminal summons and seized the
package after indicating their intent to obtain a search warrant
for it. According to Nugent and Lugas, Nugent subsequently
obtained a warrant to search the package,4 which was then revealed
to be conspicuously devoid of narcotics, containing only sandals,
two packages of underwear, two boxes of cold compresses for
injuries, a figurine, a white visor, and women's shirts wrapped in
a towel.
Plaintiff brought suit against Nugent and Lugas, as well
as DEA Group Supervisor Michael McCormick and the State Police, in
4
Here, the parties disagree; DeMayo maintains that the search
warrant was not properly signed.
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Massachusetts Superior Court in Middlesex County on May 5, 2006,
alleging the violation of his constitutional rights as well as
various state law claims.5 After considerable procedural
wrangling, the case was removed to the United States District Court
for the District of Massachusetts because Michael McCormick was a
federal officer and Nugent and Lugas were acting as federal agents
as part of the DEA task force. Eventually, all parties other than
Nugent and Lugas were dismissed from the case, and the only
remaining claim against them lies under Bivens.
On November 17, 2006, DeMayo moved for partial judgment
on the pleadings as to liability against Nugent and Lugas. They
filed a response on December 12, 2006, requesting dismissal.
Despite holding that Nugent and Lugas violated DeMayo's
constitutional rights under the Fourth Amendment, the district
court denied DeMayo's motion and granted dismissal in favor of the
defendants on the basis of qualified immunity.
II. ANALYSIS
A. Constitutional Violation
The Bivens doctrine allows plaintiffs to vindicate
certain constitutionally protected rights through a private cause
5
DeMayo originally brought his claims without knowledge that
Nugent and Lugas were part of a DEA task force, rendering 42 U.S.C.
§ 1983 the appropriate avenue for relief, although his complaint
does not explicitly indicate whether the action lay under § 1983 or
Bivens. The parties and the district court, however, all treated
the suit as lying under Bivens after the officers' roles were
revealed.
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of action for damages against federal officials in their individual
capacities. See McCloskey v. Mueller, 446 F.3d 262, 271-72 (1st
Cir. 2006). A claimant who seeks relief under Bivens must prove
the violation of a constitutional right by a federal agent acting
under color of federal law. See 403 U.S. at 397; Redondo-Borges v.
U.S. Dep't of Housing & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005).
The parties agree that, at the time of the search, Nugent and Lugas
were acting as federal agents under color of federal law. Nugent
and Lugas, however, contest the district court's determination that
their intrusion into DeMayo's home constituted a violation of his
constitutional rights.
We begin with the "basic rule . . . that, absent consent
or exigency, a warrantless search of the home is presumptively
unconstitutional" under the Fourth Amendment. Groh v. Ramirez, 540
U.S. 551, 564 (2004). "To show exigent circumstances, the police
must reasonably believe that 'there is such a compelling necessity
for immediate action as will not brook the delay of obtaining a
warrant.'" United States v. Samboy, 433 F.3d 154, 158 (1st Cir.
2005) (quoting Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st
Cir. 1999)). "Proof of exigent circumstances should be supported
by particularized, case-specific facts, not simply generalized
suppositions about the behavior of a particular class of criminal
suspects." Id. (citation omitted). An individual may vindicate a
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proven violation of his or her right to be free from unreasonable
searches through a Bivens action. See 403 U.S. at 397.
First, we note that, as the district court recognized,
the primary factual predicate for the alleged constitutional
violation occurred when the officers first breached the threshold
of DeMayo's home. In their briefing to the district court, Nugent
and Lugas ignored the alleged illegal entry, focusing instead on
justifying the protective sweep that was conducted once the
officers had already entered the home. The defendants' efforts to
justify the subsequent protective sweep miss the mark and, at best,
conflate two distinct concepts. Here, because the officers
indisputably lacked a warrant and no consent to search was given,
Nugent and Lugas were required to demonstrate the presence of an
exigency to justify their intrusion into the home.
On appeal, Nugent and Lugas offer three different
explanations for their entry. All three of these arguments are
waived because, as explained above, the defendants defended their
actions in the district court by attempting to justify a protective
sweep, not the initial entry itself. These theories are factually
and analytically distinct and, thus, are not interchangeable. See,
e.g., United States v. Martins, 413 F.3d 139, 149-50 (1st Cir.
2005) (analyzing the propriety of a protective sweep following
lawful entry due to exigent circumstances). Nugent and Lugas may
not now switch their theories on appeal. See Curran v. Cousins,
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509 F.3d 36, 47 n.6 (1st Cir. 2007); see also Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999)
(explaining that "nonmovant[s may not] switch horses in
midstream").
Nevertheless, like the district court, we conclude that,
even if not waived, the defendants' attempt to show exigent
circumstances is without merit. For coherency, we address each
different contention in turn. First, Nugent and Lugas claim that
Gary DeMayo's belligerence raised their suspicions. As DeMayo
points out, however, Nugent's own DEA report shows that DeMayo's
father became belligerent only after the officers entered the
home.6 Whatever insight might be gleaned from his behavior, it
cannot serve as an ex post facto basis for the officers' initial
intrusion into the home.
Second, Nugent and Lugas assert in their brief that
"they" heard a toilet flush, which they purportedly presumed meant
that someone in the home was attempting to dispose of narcotics,
having been alerted to the presence of law enforcement officers.
Despite the fact that there is no record evidence of any toilet
flushing, Nugent and Lugas urge that this fact can be "inferred"
6
Nugent and Lugas maintain that the timeline with respect to
this issue is inconclusive. We see no such uncertainty in the
narrative sequence; Nugent's own investigative report clearly
reveals that Gary DeMayo became "uncooperative and belligerent"
only after the officers entered the home. The unremarkable fact
that each reported event is not time-stamped does not suggest any
ambiguity.
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from the record on the basis of Lugas's brief encounter with a
woman exiting a bathroom during his protective sweep of the house.
As an initial matter, this argument was never presented to the
district court in any form and, consequently, has been waived. See
Caldwell Tanks, Inc. v. Haley & Ward, Inc., 471 F.3d 210, 218 (1st
Cir. 2006). Furthermore, the unsupported supposition suggested by
the defendants is far too attenuated from the record evidence, even
given the judgment on the pleadings context, and is more akin to
rank speculation than a reasonable inference. See Marrero-
Gutierrez v. Molina, 491 F.3d 1, 10 (1st Cir. 2007); Marlon v. W.
New England Coll., 124 F. App'x 15, 16 (1st Cir. 2005) (per curiam)
(unpublished opinion).
Finally, Nugent and Lugas maintain that the officers
harbored legitimate concerns regarding their safety and the
preservation of evidence. We have recognized that such issues may,
under certain circumstances, constitute exigencies sufficient to
justify a warrantless entry into a home. See Samboy, 433 F.3d at
158-59 (discussing the need to protect evidence from imminent
destruction); Hegarty v. Somerset County, 53 F.3d 1367, 1378-79
(1st Cir. 1995) (finding exigent circumstances where officers were
positioned in vulnerable locations after having cornered a
dangerous suspect). Moreover, we do not impose an unforeseeability
requirement upon law enforcement officers seeking to avail
themselves of the exigent circumstances exception. See Samboy, 433
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F.3d at 160. Nevertheless, police officers may not manufacture an
exigency or unreasonably and deliberately delay obtaining a
warrant. See id.; Martins, 413 F.3d at 148-49.7
On these facts, it is evident that the officers did not
act upon particularized, case-specific facts. Indeed, the record
shows that Nugent and Lugas entered DeMayo's home based on a
prearranged signal given the moment that Gary DeMayo began to sign
for the package. The record is utterly devoid of any evidence
justifying a warrantless entry at the juncture when the entry
occurred. The contents of the package were not in immediate danger
of disposal and no threat had been posed to the officers. Holding
that exigent circumstances justified Nugent and Lugas's intrusion
into DeMayo's home would be tantamount to creating a blanket rule
permitting warrantless entry into a home in the controlled delivery
context, at least when there is arguably not time to obtain a
warrant. To the contrary, we have consistently held that officers
must be able to point to specific facts in the record to justify a
warrantless entry based on exigent circumstances, even in the
7
The parties disagree about whether the officers had
sufficient time to obtain a warrant. Although we base our ruling
on other grounds, we note that the package was delivered more than
two hours after the police dog alerted to the package. Moreover,
it is unclear why Donovan could not simply have told Kelty that the
package, which was already delinquent, would be delivered later in
the day, permitting even more time for the police to obtain a
warrant. It would be counterintuitive to permit government
officials to rely on exigent circumstances when they have arranged
for an unnecessarily early delivery time that artificially
precludes the possibility of obtaining a warrant.
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controlled delivery context. See, e.g., Samboy, 433 F.3d at 158-
59.
In reaching this conclusion, we do not seek to impose any
extraordinary requirements upon law enforcement. Under even
slightly different facts, the result in this case might well be
different. See United States v. St. Pierre, 488 F.3d 76, 79 (1st
Cir. 2007) (recognizing exigent circumstances justifying
warrantless entry of drug dealer's apartment where drug courier's
failure to return to apartment might alert drug dealer of law
enforcement); Hegarty, 53 F.3d at 1379 (finding exigent
circumstances where suspect had exhibited violent, irrational
behavior and demonstrated antagonism toward law enforcement
personnel). Here, the complete absence of any (much less adequate)
case-specific evidence justifying an exigency compels this outcome.
Accordingly, DeMayo has established, on the basis of the
pleadings, the elements of a cause of action under Bivens. Our
inquiry does not end here, however, because Nugent and Lugas have
asserted the affirmative defense of qualified immunity.
B. Qualified Immunity
Although the district court found that Nugent and Lugas
infringed DeMayo's rights under the Fourth Amendment, it
nevertheless dismissed DeMayo's claims on the grounds of qualified
immunity. "Qualified immunity is intended to shield public
officials 'from civil damages liability as long as their actions
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could reasonably have been thought consistent with the rights they
are alleged to have violated.'" Fabiano v. Hopkins, 352 F.3d 447,
452-53 (1st Cir. 2003) (quoting Anderson v. Creighton, 483 U.S.
635, 638 (1987)). In assessing a claim of qualified immunity, we
conduct three separate inquiries:
(i) whether the plaintiff's allegations, if
true, establish a constitutional violation;
(ii) whether the constitutional right at issue
was clearly established at the time of the
putative violation; and (iii) whether a
reasonable officer, situated similarly to the
defendant, would have understood the
challenged act or omission to contravene the
discerned constitutional right.
Burke v. Town of Walpole, 405 F.3d 66, 77 (1st Cir. 2005) (quoting
Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004)) (internal
quotation marks omitted). As discussed above, the pleadings
establish the violation of DeMayo's right to be free from
unreasonable searches under the Fourth Amendment.
Likewise, we resolve the second prong, which requires
that the constitutional rights at issue be clearly established, in
favor of DeMayo. Under this prong, "[w]e consider whether existing
case law gave the defendants 'fair warning that their conduct
violated the plaintiff's constitutional rights.'" Jennings v.
Jones, 499 F.3d 2, 16 (1st Cir. 2007) (quoting Suboh v. Dist.
Attorney's Office of Suffolk, 298 F.3d 81, 93 (1st Cir. 2002)).
"[T]he right allegedly violated must be defined at the appropriate
level of specificity before a court can determine if it was clearly
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established." Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 65
(1st Cir. 2004) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999))
(internal quotation marks omitted). This inquiry requires us to
examine the specific factual context in question to see whether the
law was sufficiently clear to place an officer on notice of the
illegality of his conduct at the time of the incident. See id.
We do not, however, require that "the facts of prior
cases [providing notice] . . . be materially similar . . . ." Id.
at 65-66. "[G]eneral statements of the law are not inherently
incapable of giving fair and clear warning, and . . . a general
constitutional rule already identified in the decisional law may
apply with obvious clarity to the specific conduct in question,
even though 'the very action in question has [not] previously been
held unlawful[.]'" United States v. Lanier, 520 U.S. 259, 271
(1997) (third alteration in original) (quoting Anderson, 483 U.S.
at 640). Thus, the "second prong does not require that there have
been another case 'exactly on all fours with the facts of [the
instant] case.'" Riverdale Mills, 392 F.3d at 66 (quoting Suboh,
298 F.3d at 94); see also Jennings, 499 F.3d at 17 (holding that
the unlawfulness of conduct that violates core protections of the
Fourth Amendment should be readily apparent to officials regardless
of absence of factually similar cases); Wilson v. City of Boston,
421 F.3d 45, 57 (1st Cir. 2005) (holding that law was clearly
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established despite the plaintiff's failure to "identif[y] any
cases in which this issue has arisen in [this] context . . .").
The district court essentially mandated that, to avoid
dismissal, DeMayo find a case involving a violation of an
individual's constitutional rights under the exact same set of
circumstances. The proper inquiry is more abstract: whether
Nugent and Lugas were on notice that "police officers need either
a warrant or probable cause plus exigent circumstances in order to
make a lawful entry into a home." Kirk v. Lousiana, 536 U.S. 635,
638 (2002); see also Payton v. New York, 445 U.S. 573, 590 (1980)
("[T]he Fourth Amendment has drawn a firm line at the entrance to
the house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.").
In our view, the "firm line" drawn by Kirk and Payton
provided Nugent and Lugas with sufficient notice that their entry
into DeMayo's home was in violation of clearly established law.
The defendants contend that the doctrine of exigent circumstances
is an expanding area of law, the contours of which are not clearly
established. The fact that the doctrine of exigent circumstances
is evolving, however, does not necessarily mean that every
situation implicating the subject touches upon the supposed
nebulous borderline of acceptable conduct. Regardless of whether
the outer boundaries of the doctrine are clearly defined, the
defendants' conduct fell squarely outside the realm of legitimate
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uncertainty. See Lovelace v. Lee, 472 F.3d 174, 198 (4th Cir.
2006) (explaining that qualified immunity was unavailable because
"[a]lthough the outer boundaries of [the relevant law] may have
been uncharted at the time, its core protections were not"); Suboh,
298 F.3d at 97 (reasoning that "[w]hatever the exact contours of
the right [in question], this case falls well within the area of
clarity") (internal citation omitted). As explained above, the
record is utterly bereft of specific facts that could have
justified the officers' entry. Thus, without disputing the
premise, it is a non sequitur for Nugent and Lugas to argue that
because the precise quantum or nature of evidence that gives rise
to exigent circumstances is not fully fleshed out in the case law,
they are entitled to qualified immunity. Law enforcement officers
may not violate constitutional rights, then expect qualified
immunity when a court refuses to craft an unprecedented exception
to a clearly established rule of law.
Finally, we turn to the third prong of the qualified
immunity inquiry. We must determine whether an objectively
reasonable official, in the same position as Nugent and Lugas,
would have believed his actions violated DeMayo's clearly
established rights under the Fourth Amendment. See Riverdale
Mills, 392 F.3d at 61. In this situation, there were no factual
ambiguities or close calls that would render the defendants'
conduct objectively reasonable. See id. Furthermore, the
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circumstances under which Nugent and Lugas entered the home cannot
be characterized as "tense, uncertain, and rapidly evolving." See
Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (quoting Graham
v. Connor, 490 U.S. 386, 397 (1989)) (internal quotation marks
omitted). To the contrary, the officers acted upon a prearranged
signal given while events were proceeding according to plan, before
even the inception of the passive, non-violent "belligerence"
offered by Gary DeMayo. Moreover, the "firm line" prohibiting
warrantless entries absent exigent circumstances should have made
application of the controlling legal standard simple. See
Riverdale Mills, 392 F.3d at 61.
Accordingly, the doctrine of qualified immunity does not
shield Nugent and Lugas from liability.
C. Judgment on the Pleadings
Nugent and Lugas argue that, even if the district court
erred in dismissing this case, granting partial judgment in favor
of DeMayo is inappropriate because Nugent and Lugas "have not yet
been called upon, or required, to submit evidence that would
support their actions." This contention ignores the nature of a
motion for judgment on the pleadings under Rule 12(c). If Nugent
and Lugas wished to present evidence of additional facts that might
refute or undermine DeMayo's pleadings, the place to do so was in
their response to his motion. At that point, the proper course for
the district court would have been to convert the motion into one
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for summary judgment. See Fed. R. Civ. P. 12(d) ("If, on motion
under . . . [Rule] 12(c), matters outside the pleadings are
presented to and not excluded by the court, this motion must be
treated as one for summary judgment . . . ."). Having failed to
present any such evidence, by affidavit or otherwise, Nugent and
Lugas may not now seek a second bite at the apple when they have
not availed themselves of the procedures provided to them by the
Rules. The purview of Rule 12(c) would be nugatory if litigants
could simply object to the procedure, with vague intimations of
unspecified factual disagreements, to defeat a motion for judgment
on the pleadings without presenting any evidence to suggest that
the opposing party is not entitled to relief.
Accordingly, DeMayo is entitled to partial summary
judgment on the pleadings.
III. CONCLUSION
For the foregoing reasons, we reverse the decision of the
district court. We render partial judgment on the pleadings in
favor of DeMayo on his claims against Nugent and Lugas and remand
for further proceedings consistent with this opinion.
Reversed and remanded.
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DeMayo v. Nugent
Court: Court of Appeals for the First Circuit
Date filed: 2008-02-22
Citations: 517 F.3d 11
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