Case: 14-14201    Date Filed: 09/16/2015   Page: 1 of 23


                                                                    [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     _________________________

                            No. 14-14201
                     _________________________

               D.C. Docket No. 6:13-cv-00224-GAP-GJK


ELVAN MOORE,


                                                           Plaintiff-Appellant,

                                 versus


KEVIN PEDERSON,

                                                          Defendant-Appellee.


                     __________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    __________________________

                          (September 16, 2015)
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Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.

ROSENBAUM, Circuit Judge:

       Dorothy may have said it best when she said, “There is no place like

home.” 1 Though we are pretty sure that she was not talking about the Fourth

Amendment, she may as well have been. Under the Fourth Amendment, the home

is a sacrosanct place that enjoys special protection from government intrusion. The

government may not enter a person’s home to effect an arrest without a warrant or

probable cause plus either consent or exigent circumstances. For this reason, we

hold today that, in the absence of exigent circumstances,2 the government may not

conduct the equivalent of a Terry3 stop inside a person’s home. But because the

law on this point was not clearly established in this Circuit before our decision

today, we affirm the district court’s entry of summary judgment on qualified-

immunity grounds to Defendant-Appellee Deputy Kevin Pederson, who reached

into Plaintiff-Appellant Elvan Moore’s home to arrest and handcuff him when, in

the course of what Pederson described as a Terry stop, Moore declined to identify

       *
        The Honorable R. David Proctor, United States District Judge for the Northern District
of Alabama, sitting by designation.
       1
           L. Frank Baum, The Wonderful Wizard of Oz 46,
http://ir.nmu.org.ua/bitstream/handle/123456789/123102/cb6151959dc6ecf6e71dc17715e88d24.
pdf?sequence=1.
       2
         We find that this case does not involve exigent circumstances, so we do not explore
today what particular exigent circumstances may justify an officer’s entry into a home without a
warrant and may permit the officer to conduct what is effectively a Terry stop inside the home.
       3
           Terry v. Ohio, 

, 

(1968).
                                                  2
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himself in response to Pederson’s questioning. We also affirm the district court’s

dismissal of Moore’s state-law claim for intentional infliction of emotional

distress.

                                         I.

       In the early morning hours of November 15, 2008, Defendant Seminole

County Sheriff’s Deputy Kevin Pederson was working road patrol. He received a

dispatch from the Sheriff’s Office in response to a call from someone at the

Colonial Grand apartments. The complainant reported that a male and two females

were outside, yelling at one another, though the complainant added that the dispute

did “not sound violent.”

       At approximately 4:45 a.m., Pederson arrived at the apartment complex.

When Pederson got there, the caller met him and explained that a man and two

women had been arguing in the parking lot and that one of the women had left in a

white vehicle. According to the caller, verbal disputes involving these people were

“an everyday occurrence.” The caller then directed Pederson to Plaintiff Elvan

Moore’s apartment as the unit into which the couple retreated.

       Based on this information, Pederson approached Moore’s residence to

further investigate the situation. As he neared the door, he heard what he described

sounded like an argument, though he could not make out any words. In addition,

Pederson stated that he heard music coming from the apartment.

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      Pederson knocked on Moore’s door. When Moore opened the door, he was

wearing a towel wrapped at the waist, and two women were visible inside the

apartment—one naked and one clothed.         Though neither woman asked for

assistance or otherwise indicated she was in distress, Pederson stated that he

thought that one of the women “had a scowl on her face” and “appeared visibly

upset, pissed off,” but he could not discern at whom she was mad.           From

Pederson’s “initial impression,” he thought “maybe this is a girlfriend that just

walked in on a boyfriend who is with another woman.”

      Pederson began interviewing Moore in order to investigate Moore’s

involvement in the parking-lot disturbance. In addition, Pederson explained, he

did not know whether “a domestic violence situation” existed, based on what he

had seen.

      In response to the questioning, Moore expressed lack of knowledge that a

parking-lot disturbance had occurred, and when Pederson requested that Moore

provide his name and identification, Moore declined.          Moore also refused

subsequent requests from Pederson to identify himself.

      At some point during the conversation and after Moore’s multiple refusals to

provide identification, Pederson handcuffed Moore.       At the time, Moore was




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standing inside the doorway of his apartment.4 After Pederson handcuffed Moore,

Pederson led Moore, who was still wearing a towel when he was handcuffed, from

the doorway of his apartment to the patrol vehicle.

       During the walk to the patrol vehicle, Moore’s towel fell off. 5 After placing

Moore in the patrol vehicle, Pederson took Moore to the police station where he

was booked and eventually provided a jump suit to wear. Moore was subsequently

charged with violating Florida Criminal Statute 843.02: resisting officer –

obstructing without violence.           The charges against Moore were eventually

dropped.

                                              II.

       Following these events, Moore filed an amended complaint asserting claims

for, among other things, unlawful arrest in violation of 42 U.S.C. § 1983 (“§

1983”) and intentional infliction of emotional distress (under Florida law).6


       4
         Pederson attested that the arrest and handcuffing occurred outside of Moore’s
apartment. Since we are reviewing the entry of summary judgment against Moore, however, we
accept for purposes of our analysis Moore’s version of the facts where a conflict between
Moore’s and Pederson’s stories exists.
       5
         Again, the parties’ versions of the facts diverge here. Pederson asserted that Moore
wore a towel that remained on throughout the entire period that he was in Pederson’s custody.
       6
          Besides these claims, Moore’s amended complaint alleged state-law claims for false
arrest and malicious prosecution against Pederson and also asserted claims of invasion of
privacy and failure to train and supervise in violation of 42 U.S.C. § 1983 against several other
entities. The district court dismissed all of these claims. On appeal, without identifying any
issues relating to these claims in his statement of issues and without making any actual
arguments about these claims in his appellate brief, Moore attempts to incorporate by reference
his arguments regarding these other state claims contained in his brief in opposition to
Pederson’s motion for summary judgment filed in the district court, explaining that he does so
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According to the amended complaint, Moore claimed that he was unlawfully

arrested without probable cause based only on his refusal of Pederson’s request to

provide biographical information for a report.

       Pederson filed a motion for summary judgment on all claims, and Moore

filed a cross-motion for summary judgment on his § 1983 claim. The district court

granted summary judgment in favor of Pederson on all claims. We now affirm.

                                              III.

       We review de novo the district court’s disposition of a summary-judgment

motion based on qualified immunity. Lee v. Ferraro, 

, 1190 (11th

Cir. 2002). Summary judgment should be entered when “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In making this determination, we consider the record

and draw all reasonable inferences in the light most favorable to the non-moving




“[i]n the interest of page limits compliance.” We have explained many times that “a legal claim
or argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.” Access Now, Inc. v. Sw. Airlines Co., 

, 1330 (11th Cir. 2004);
see also Sapuppo v. Allstate Floridian Ins. Co., 

, 681 (11th Cir. 2014). Good
reasons for this rule exist. Among others, Moore’s brief opposing summary judgment before the
district court does not explain what defects Moore perceives in the district court’s ruling, which
was obviously entered after Moore filed the brief that he asks us to consider. So we (and
Pederson) would have to divine what in particular Moore thought was problematic about the
district court’s decision. That is not how our adversarial system works. We further note that
nothing prevented Moore from requesting permission to exceed the page limit if he had good
cause to do so, but Moore never made such a request. Because Moore has not briefed any issues
regarding these other state-court claims, any issues relating to them are deemed abandoned.
                                                 6
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party. Shiver v. Chertoff, 

, 1343 (11th Cir. 2008) (per curiam); Hoyt

v. Cooks, 

, 977 (11th Cir. 2012).

                                         IV.

      The qualified-immunity defense balances “the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 

, 231, 

, 815 (2009).

Qualified immunity exists “to allow government officials to carry out their

discretionary duties without the fear of personal liability or harassing litigation.”

Durruthy v. Pastor, 

, 1087 (11th Cir. 2003).

      In pursuit of that aim, qualified immunity protects government officials

engaged in discretionary functions and sued in their individual capacities unless

they violate “clearly established federal statutory or constitutional rights of which a

reasonable person would have known.” Keating v. City of Miami, 

,

762 (11th Cir. 2013) (quotation marks, and brackets omitted). Under its strictures,

“all but the plainly incompetent or one who is knowingly violating the federal law”

is exposed to liability. Lee v. Ferraro, 

, 1194 (11th Cir. 2002). As a

result, qualified immunity “liberates government agents from the need to

constantly err on the side of caution by protecting them both from liability and the

other burdens of litigation, including discovery.” Holmes v. Kucynda, 

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1069, 1077 (11th Cir. 2003) (internal quotation marks omitted). This safeguard,

however, does not extend to one who “knew or reasonably should have known that

the action he took within his sphere of official responsibility would violate the

constitutional rights of the [plaintiff].” 

marks & alteration

omitted).

       Qualified immunity requires a public official to show first that he was acting

within the scope of his or her discretionary authority. Maddox v. Stephens, 

, 1120 (11th Cir. 2013). We have said that the term “discretionary

authority” “include[s] all actions of a governmental official that (1) were

undertaken pursuant to the performance of his duties, and (2) were within the

scope of his authority.” Jordan v. Doe, 

, 1566 (11th Cir. 1994)

(internal quotation marks omitted).           Here, there is no question that Pederson

satisfied this requirement, as Pederson engaged in all of the challenged actions

while conducting investigative and arrest functions as a deputy sheriff and while

on duty. 7

       Because Pederson has established that he was acting within the scope of his

discretionary authority, the burden shifts to Moore to demonstrate that qualified

       7
           Although Moore argues in his opening brief that Pederson was not acting within the
scope of his duties, Moore did not raise this challenge in response to Pederson’s motion for
summary judgment in front of the district court. Consequently, Moore forfeited this argument.
Bryant v. Jones, 

, 1308 (11th Cir. 2009) (“[A]bsent extraordinary circumstances,
legal theories and arguments not raised squarely before the district court cannot be broached for
the first time on appeal.”). And even if he had not forfeited the argument, we find that it lacks
merit.
                                               8
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immunity is inappropriate. See 

show that, when viewed in the

light most favorable to him, the facts demonstrate that Pederson violated Moore’s

constitutional right and that that right was “clearly established . . . in light of the

specific context of the case, not as a broad general proposition[,]” at the time of

Pederson’s actions. Saucier v. Katz, 

, 201, 

, 2156

(2001). We may decide these issues in either order, but, to survive a qualified-

immunity defense, Moore must satisfy both showings. 

-

21 (citation omitted).

                                          A.

      We start by considering whether Pederson transgressed any of Moore’s

constitutional rights. We find that he did. In particular, Pederson violated Moore’s

right to be free from unreasonable seizures.

                                          1.

      Stemming from the origins of our nation, the home has always been viewed

as a sacrosanct place with unique rules that apply to it. See Payton v. New York,

, 

(1980) (“The zealous and frequent repetition of the

adage that a ‘man’s house is his castle,’ made it abundantly clear that both in

England[] and in the Colonies ‘the freedom of one’s house’ was one of the most

vital elements of English liberty”). Indeed, the Framers considered the hallowed

stature of the home to be so important that they directed two amendments in the

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Bill of Rights at it, protecting the privacy of the home with both the Fourth

Amendment and the Third Amendment. 8

       With respect to the Fourth Amendment, the Supreme Court has opined that

the “physical entry of the home is the chief evil against which the wording of [that

provision] is directed.” United States v. U.S. Dist. Ct. for E.D. Mich., S. Div., 

, 313, 

, 2134 (1972). Looking to the language of the Fourth

Amendment, it is easy to understand the Supreme Court’s reasoning. The Fourth

Amendment strictly commands, “The right of the people to be secure in their

persons [and] houses . . . against unreasonable . . . seizures, shall not be violated . .

. .” U.S. CONST. amend IV. Under it, “no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place to be

searched, and the persons . . . to be seized.” 

Supreme Court has explained, the Fourth Amendment “draw[s] a

firm line at the entrance to the house.” 

, 100 S. Ct. at 1382.

As a result, “warrantless arrest in a home violates the Fourth Amendment unless

the arresting officer had probable cause to make the arrest and either consent to

enter or exigent circumstances demanding that the officer enter the home without a

warrant.” Bashir v. Rockdale Cnty., Gal., 

, 1328 (11th Cir. 2006).



       8
         The Third Amendment, which is not at issue in this case, provides, “No soldier shall, in
time of peace be quartered in any house, without the consent of the owner, nor in time of war,
but in a manner to be prescribed by law.” U.S. CONST. amend. III.
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But make no mistake: in the absence of these stringent circumstances, for the

purpose of arresting a person without a warrant, “any physical invasion of the

structure of the home, ‘by even a fraction of an inch,’ [is] too much . . . .” 9 Kyllo v.

United States, 

, 37, 

, 2045 (2001) (citation omitted).

       Applying these rules, in McClish v. Nugent, 

(11th Cir. 2007),

we held that an officer who, without a warrant, or probable cause along with

exigent circumstances or consent, “reached into [a] house, grabbed [the plaintiff],

and forcibly pulled him out onto the porch” in order to arrest him, violated the

plaintiff’s Fourth Amendment rights.

                                              2.

       Moore’s case is not materially different.            Like the officer in McClish,

Pederson did not have a warrant, and he lacked probable cause, exigent

circumstances, and consent. He nonetheless breached Moore’s home’s threshold

for the purpose of arresting Moore when he handcuffed Moore, who was standing

inside his apartment’s doorway at the time. As a result, Pederson violated Moore’s

Fourth Amendment right to be free from unreasonable seizures.




       9
         If we were speaking in terms of football, we might say that it is a Fourth Amendment
violation if any part of the law-enforcement officer breaks the plane of the home to conduct a
warrantless arrest without probable cause and either consent or exigent circumstances. See 2015
NFL Rulebook, Rule 3, § 39, http://operations.nfl.com/the-rules/2015-nfl-rulebook/ (“It is a
Touchdown if any part of the ball is on, above, or behind the opponent’s goal line while legally
in possession of an inbounds player, provided it is not a touchback.”) (emphasis added).
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      While Pederson contends that he had probable cause to arrest Moore for his

alleged violation of Fla. Stat. § 843.02, which makes it illegal to resist an officer

without violence, serious problems doom Pederson’s argument. To begin with,

Pederson’s position necessarily depends on the conclusion that Moore refused to

provide his identification to Pederson during a lawful Terry stop, but Pederson did

not conduct a lawful Terry stop.

      In Terry v. Ohio, the Supreme Court held that an officer does not violate the

Fourth Amendment by conducting a “brief, investigatory stop when the officer has

a reasonable, articulable suspicion that criminal activity is afoot.”      Illinois v.

Wardlow, 

, 123, 

, 675 (2000) (citing 

, 88 S. Ct. at 1868).     A Terry stop is a type of seizure under the Fourth

Amendment because it restrains the freedom of the detainee to walk away or

otherwise remove himself from the situation. 

, 88 S. Ct. at

1877. The standard of “reasonable suspicion” that is required to justify a Terry

stop is significantly more lenient than that of “probable cause,” which is necessary

to support a warrant. 

120 S. Ct. at 675-76.

      Pederson asserts that, when he initially approached Moore’s door, he had

reasonable, articulable suspicion of a breach of the peace, based on the

complainant’s report about the parking-lot dispute and the music and argument

emanating from inside Moore’s apartment. For purposes of our discussion, we will

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assume that he is correct.10 Pederson bolsters his reasonable-suspicion argument

by relying on his assessment of the situation after Moore opened the door—

namely, that he had reasonable, articulable suspicion that a possible ongoing

domestic dispute related to the parking-lot incident could have been occurring.

These circumstances, Pederson suggests, independently allowed him to continue

his Terry stop.

       But significantly, the circumstances in this case did not satisfy the definition

of “exigent circumstances” either before or after Pederson’s interaction with

Moore.      Before Pederson knocked on Moore’s door, all he knew was that a

neighbor had complained of a non-violent argument in the parking lot where one of

the participants had left the scene, and Pederson heard what he believed could have

been arguing and music coming from inside the apartment. These facts are a far


       10
            Even if he is not, Pederson could have lawfully knocked on Moore’s front door
seeking to ask him questions outside the context of a Terry stop. Morris v. Town of Lexington,
Ala., 

, 1324 (11th Cir. 2014) (citing Florida v. Jardines, ___ U.S. ___, 

, 1416 (2013). As we have explained, “officers are allowed to knock on a residence’s door
or otherwise approach the residence seeking to speak to the inhabitants just [as] any private
citizen may.” United States v. Taylor, 

, 1204 (11th Cir. 2006) (alteration, internal
quotation marks, and citation omitted). But an important difference exists between a Terry stop
and the type of interaction that occurs when a person responds to an officer’s knock on the door
and engages in conversation with that officer: the mandatory versus the voluntary nature of the
interaction. In the Terry stop, the person is detained within the meaning of the Fourth
Amendment; he cannot simply walk away or otherwise avoid the encounter. But when a citizen
is not detained by a Terry stop or otherwise lawfully detained and chooses to speak with an
officer, that citizen has the right to cease answering questions and walk away from the officer;
the encounter is entirely voluntary. When this type of interaction occurs as the result of a
citizen’s decision to speak with officers after they knock on the door of his home, provided that
no warrant or probable cause and exigent circumstances exist, the citizen has the right to
terminate his voluntary participation in the conversation by retiring into his home and closing the
door.
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cry from an “emergency situation[] involving endangerment to life” that we have

previously described as constituting exigent circumstances. See, e.g., United States

v. Holloway, 

, 1337 (11th Cir. 2002).

      And after Moore opened the door for Pederson, nothing that Pederson

reported observing established or even suggested that anyone’s life or health was at

risk. At worst, Pederson saw a naked man, a naked woman, and a clothed woman

with a scowl on her face. No one appeared injured in any way; Pederson did not

report seeing any furniture or other items strewn about; and Pederson did not

identify any behavior or conduct that suggested that any of the occupants of the

residence contemplated violence in any way. Moreover, while the complainant

reported hearing arguments from that apartment on other occasions, which he

considered a nuisance, he specifically described the disputes as “verbal” and non-

violent. This is not the stuff of which life- or limb-threatening emergencies that

constitute “exigent circumstances” are made.

      As a result, Pederson could not have lawfully executed a Terry stop in this

case. Because Pederson did not have a warrant and he was not conducting a lawful

Terry stop when Moore was inside his home, Moore was free to decide not to

answer Pederson’s questions. Kentucky v. King, 

, 

,

1862 (2011) (“When the police knock on a door . . . [and the] occupant chooses to

open the door and speak with the officers, the occupant need not allow the officers

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to enter the premises and may refuse to answer any questions at any time.”).

Consequently, Moore’s refusal to answer Pederson’s requests for identification

could not have served as the basis for a violation of Fla. Stat. § 843.02, resisting an

officer without violence, and Pederson lacked probable cause to arrest Moore for

this violation.

      We have said that an officer may not enter the home for the purpose of

effecting a warrantless arrest unless that officer has both probable cause and either

exigent circumstances or consent. 

. So we cannot see

how law enforcement could enter a home to detain a person on reasonable,

articulable suspicion of a criminal violation (resisting an officer without

violence)—a much lower standard than probable cause—when neither exigent

circumstances nor consent exist. That just makes no sense to us. See United States

v. Saari, 

, 809 (6th Cir. 2001) (“It would defy reason to hold . . . that a

warrantless in-home seizure is authorized to further an investigation, but that either

a warrant or exigent circumstances are necessary when officers have the probable

cause and intent to arrest.”).

       In the absence of probable cause and without a warrant, Pederson could not

have lawfully entered Moore’s premises for the purpose of arresting him. Because

Pederson reached into Moore’s home to arrest him, anyway, Pederson violated

Moore’s constitutional right to be free from unreasonable seizure.

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                                        VI.

      Having determined that Pederson violated Moore’s Fourth Amendment right

to be free from unreasonable seizure, we consider whether, as of November 15,

2008, when Pederson arrested Moore, the parameters of that right as it arose in this

case were clearly established. We find that they were not.

      The touchstone of qualified immunity is notice. Holmes v. Kucynda, 

, 1078 (11th Cir. 2003). The violation of a constitutional right is clearly

established if a reasonable official would understand that his conduct violates that

right. See Coffin v. Brandau, 

, 1013 (11th Cir. 2011) (en banc).

      Our Circuit uses two methods to determine whether a reasonable official

would understand that his conduct violates a constitutional right. Fils v. City of

Aventura, 

, 1291 (11th Cir. 2011). The first requires the court to

examine whether “decisions of the United States Supreme Court, the United States

Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent

state (here, the Supreme Court of Florida) [have] clearly establish[ed] the law.”

(citation omitted).      This method does not require

“[e]xact factual identity with a previously decided case” but rather demands that

“the unlawfulness of the conduct must be apparent from the pre-existing law.”

(citations omitted).




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       The second approach asks whether the officer’s “conduct lies so obviously

at the very core of what the Fourth Amendment prohibits that the unlawfulness of

the conduct was readily apparent to [the officer], notwithstanding the law of fact-

specific case law” on point. 

(alteration in original) (citation

and quotation marks omitted). Even in the absence of caselaw holding the specific

conduct unlawful, a “general constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific conduct in question.” 

; see 

. But this principle offers a narrow

exception to the general rule that only caselaw and specific factual scenarios can

clearly establish a constitutional violation and is reserved for rare cases. 

.

      Moore does not point to a particular Supreme Court, valid Eleventh Circuit,

or Florida Supreme Court case that he contends clearly established that Terry-like

stops may not be conducted in the home. Instead, he asserts that it was clearly

established that a Terry stop could not occur inside the home because all cases

approving of Terry stops involve temporary detentions in public places, not in

homes. In further support of his argument, Moore points to a vacated Eleventh

Circuit case and cases outside this Circuit where courts have opined that a Terry

stop cannot occur in the home. We disagree that Moore has demonstrated that the

law was clearly established in this case as of November 15, 2008, that an officer

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may not conduct a Terry-like stop in the home in the absence of exigent

circumstances.

      First, the mere dearth of binding caselaw holding that a particular activity is

constitutional cannot, in and of itself, clearly establish that that activity is

unconstitutional or otherwise impermissible. Indeed, that Moore discovered no

valid, binding caselaw that holds that a Terry-like stop can be conducted in a home

does not somehow clearly establish the principle that a Terry-like stop cannot be

executed in a home.

      Nor does Moore find the necessary support in the cases he cites. Moore

relies on a vacated Eleventh Circuit case, two Ninth Circuit cases that were issued

after November 15, 2008, and a Tenth Circuit case that was issued in May 2008.

To state the obvious, United States v. Tobin, 

, 327 (11th Cir. 1989),

vacated, 

(11th Cir. 1990), the Eleventh Circuit case on which Moore

relies, was vacated. That means it has no legal force, so it could not have clearly

established the law.

      While Moore acknowledges as much, he suggests that the Eleventh Circuit’s

subsequent en banc opinion in Tobin, 

, 1511 (11th Cir. 1991) (en

banc) (“Tobin II”), clearly established that an in-home Terry-like stop violates the

Fourth Amendment when it stated that “reasonable suspicion cannot justify the

warrantless search of a house.” Not only does the quotation that Moore cites

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address warrantless searches, not Terry-like stops, but review of the entire

quotation—“Reasonable suspicion cannot justify the warrantless search of a house,

but it can justify the agents’ approaching the house to question the 

(emphasis added) (citation omitted)—does not “dictate[], that is,

truly compel[], the conclusion for all reasonable, similarly situated public officials

that what Defendant was doing violated Plaintiff[’s] federal rights in the

circumstances.” Evans v. Stephens, 

, 1282 (11th Cir. 2005) (en

banc) (citation and internal quotation marks omitted).

       In fact, a panel of this Court, relying on the same quotation about

“warrantless search[es]” in Tobin II on which Moore hangs his hat, said only that

“[w]e are skeptical that ‘reasonable suspicion’ is the correct standard for justifying

the officers’ entry” into the home. 

n.17. If, as recently

as last year, a panel of this Court was, at worst, “skeptical” that Terry-like stops

could occur in the home, we cannot say that the law on that point was “clearly

established” for officers six-and-one-half years ago. For this reason, Moore’s

argument must fail, regardless of the caselaw from other jurisdictions. 11 And we


       11
           As for the cases from other jurisdictions, first, in and of themselves, they cannot
clearly establish the law in this Circuit. See 

. Second, the Ninth
Circuit cases that Moore cites—United States v. Struckman, 

, 738 (9th Cir. 2010),
and United States v. Perea-Rey, 

, 1185-86 (9th Cir. 2012)—both postdate the
events in this case, so they could not have put Pederson on notice that Terry-like stops cannot
occur in the home even outside this Circuit. And finally, as of the time of the events in this case,
at least one circuit had applied a Terry analysis to an investigatory stop of people in their hotel
room, suggesting that if sufficient facts to establish reasonable suspicion exist, a Terry-like stop
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cannot conclude that in November 2008 the law was clearly established in this

Circuit that a Terry-like stop cannot be conducted in the home, in the absence of

exigent circumstances. As a result, the district court correctly found that Pederson

was protected by qualified immunity.

                                                   VII.

       Finally, we turn to the district court’s entry of summary judgment for

Pederson on Moore’s claim for intentional infliction of emotional distress.

       In Florida, to prove intentional infliction of emotional distress, a plaintiff

must show that (1) the defendant’s conduct was intentional or reckless; (2) the

conduct was outrageous, beyond all bounds of decency, and odious and utterly

intolerable in a civilized community; (3) the conduct caused emotional distress;

and (4) the emotional distress was severe. Gallogly v. Rodriguez, 

,

471 (Fla. Dist. Ct. App. 2007). Regarding the second prong, even tortious or

criminal intent, or intent to inflict emotional distress, standing alone, is not enough.

Metro. Life Ins. Co. v. McCarson, 

, 279 (Fla. 1985) (quoting

RESTATEMENT (SECOND)           OF   TORTS § 46 cmt. d (AM. LAW. INST. 1965)). Nor is

“conduct [that] has been characterized by ‘malice,’ or a degree of aggravation


may be conducted in the home. See United States v. Jerez, 

, 693-94 (7th Cir. 1997).
This means that in the absence of caselaw on this point from the Supreme Court, the Eleventh
Circuit, and the Florida Supreme Court, at best, disagreement among other circuits existed as to
whether a Terry-like stop could be conducted in the home. “If judges . . . disagree on a
constitutional question, it is unfair to subject police to money damages for picking the losing side
of the controversy.” 

(citation and internal quotation marks omitted).
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which would entitle the plaintiff to punitive damages for another tort.” 

(SECOND) OF TORTS § 46 cmt. d (AM. LAW. INST. 1965)). Instead,

Florida courts have found “‘[l]iability . . . only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.’” 

(SECOND) OF TORTS § 46 cmt.

d (AM. LAW. INST. 1965)). Indeed, only those situations where “recitation of the

facts to an average member of the community would arouse his resentment against

the actor, and lead him to exclaim, ‘Outrageous!’” satisfy the standard required to

establish a claim of intentional infliction of emotional distress.        

(SECOND)       OF   TORTS § 46 cmt. d (AM. LAW. INST. 1965)).

Nonetheless, in situations involving government authority, courts recognize that

“[t]he extreme and outrageous character of the conduct may arise from an abuse by

the actor of a position” and consequently “give greater weight to the fact that the

defendants had actual or apparent authority over [the plaintiff] as police officers.”

(quotation marks omitted).

      Moore argues that Pederson “forced” Moore to be naked and refused to

allow Moore to put on clothing, and he alleges that both acts constituted extreme

and outrageous conduct.       Under Moore’s recollection of the facts, Pederson

arrested Moore while Moore was wearing a towel wrapped around his waist. On

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the walk from Moore’s front door to the police car, Moore’s towel began to fall

off, completely dropping by the end of the first five feet of the walk. 12 For the

remaining fifteen feet, Moore was completely naked. When Moore asked two

separate people to bring him clothes, Pederson responded by instructing them to

stay where they were, or he would arrest them as well.

       Upon arrival at the Sheriff’s Office, Moore saw a woman approaching to

process him. In response, Moore asked Pederson to please make arrangements for

a man to process him since he was naked. Pederson immediately obliged, and a

man processed Moore instead, bringing him a blue jumpsuit to put on.

       We need not determine whether Pederson’s conduct was “outrageous.”

Regardless of whether it was, we are compelled to affirm the district court’s grant

of summary judgment on Moore’s claim for intentional infliction of emotional

distress. Moore was required to show that he suffered “severe” emotional distress

stemming from Pederson’s actions. 

. But Moore made

absolutely no argument suggesting how he had done that, either in his briefing




       12
          Pederson contended that the towel remained on Moore throughout the arrest and right
up until Moore’s processing. He further asserted that Moore had clothes with him in Pederson’s
vehicle because one of the two women brought Moore clothes to put on for when he bonded out
of jail. Pederson stated that he took Moore’s clothes to the jail for him. We also note that
Moore’s processing report shows that he was booked with a towel, meaning that under Moore’s
version of the facts, Pederson would have had to have stopped to pick up the towel from the
ground when it fell off, or someone else would have had to have provided the towel to Pederson
so that Moore could have it at the time that he was processed. For purposes of evaluating the
entry of summary judgment against Moore, though, we accept Moore’s version of the facts.
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before this Court or that before the district court, nor did he point to any facts

evidencing that he suffered severe emotional distress.

       Accordingly, we hold that Moore has not established a claim for intentional

infliction of emotional distress because he has not shown that Moore suffered

“severe” emotional distress as a result of Pederson’s actions.

                                            VIII.

       Home may be where the heart is, 13 but it cannot be where the government

is—at least for purposes of conducting a Terry-like stop, in the absence of exigent

circumstances. Today we clearly establish this as the law in this Circuit. But since

the law was not clearly established on this point when Pederson arrested Moore,

the district court did not err when it granted qualified immunity to Pederson and

denied summary judgment to Moore. Nor did the court err in determining that

Moore failed to establish a claim for intentional infliction of emotional distress.

For these reasons, the district court’s order is AFFIRMED.




       13
          “Home is where the heart is” is a quotation often attributed to Pliny the Elder, also
known as Gaius Plinius Secundus. Tragically and perhaps ironically, Pliny the Elder died trying
to save his family and his friend Pomponianus from their homes in the aftermath of Mount
Vesuvius’s eruption.
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