MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff Jerry Barnes ("Mr. Barnes") initiated this civil rights case on April 4, 2013. (Doc. 1). On July 17, 2013, Mr. Barnes filed an amended complaint. (Doc. 17). Pursuant to this court's order (Doc. 26), entered on January 13, 2014, Mr. Barnes filed a second amended complaint (Doc. 27) on February 3, 2014.

The second amended complaint asserts claims under 42 U.S.C. § 1983 (id. ¶ 1), arising out of an alleged warrantless law enforcement incident which occurred at Mr. Barnes's residence on or about November 17, 2012. (Doc. 27 ¶ 11). The defendants are various officers assigned to work for the Etowah County Sheriff's Office Drug Task Force. (Id. ¶ 6). The five named defendants in Mr. Barnes's amended pleading are: Scott Lumpkin ("Officer S. Lumpkin"), Mike Bolton ("Officer Bolton"), Cole Lumpkin ("Officer C. Lumpkin"), Clark Thompson ("Officer Thompson") (collectively, the "Gadsden Officers"), and Tim Waldrop ("Deputy Waldrop"). (Doc. 27 at 1; id. ¶¶ 6-10). Mr. Barnes has sued these five defendants in their personal capacities only.

Mr. Barnes's second amended complaint initially contained five counts. However, after the court's Rule 12(b)(6) ruling (Doc. 37), entered on May 29, 2015, only Counts One and Three remain.1 Count One is a claim for illegal seizure asserted against all defendants. (Doc. 27 ¶ 41). Count Three is a claim for illegal search against Deputy Waldrop and Officers C. Lumpkin and Thompson. (Id. ¶ 43).

Pending before the court are the Motion for Summary Judgment (Doc. 49) filed by Officers Thompson, C. Lumpkin, S. Lumpkin, and Bolton (the "Gadsden Officers' Motion"), on April 3, 2015, and the Motion for Summary Judgment (Doc. 51) filed by Deputy Waldrop ("Deputy Waldrop's Motion") on that same date. Defendants filed their respective evidentiary materials and briefs on April 3, 2015. (Docs. 50, 54, 52, 53).

Mr. Barnes separately opposed both motions on May 15, 2015. (Docs. 57, 58). Defendants followed with their replies on May 22, 2015. (Docs. 59, 60). Accordingly, both motions are now under submission and, for the reasons explained below, the Gadsden Officers' Motion is GRANTED while Deputy Waldrop's Motion is GRANTED IN PART and otherwise is DENIED.

II. APPLICABLE STANDARDS

A. Summary Judgment Generally

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to `come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).

Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).

B. Qualified Immunity

All defendants assert that qualified immunity bars Mr. Barnes's § 1983 claims brought against them in their personal capacities. (Doc. 54 at 222; see also Doc. 52 at 4 ("Waldrop and all Defendants are entitled to qualified immunity because their actions were lawful-to secure the arrest of Blackburn and to ensure their safety that no one else was lurking in the shadows of the residence that was armed and could shoot them.")). "The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). "To receive qualified immunity, a government official first must prove that he was acting within his discretionary authority." Id.

This is a two-part test. Under the first step, "the defendant must [prove that he or she was] performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that he or she was "executing that job-related function." Id. at 1267. "Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity." Cottone, 326 F.3d at 1358.3

Until 2009, the Supreme Court had required a two-part inquiry to determine the applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, "[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).

If, under the plaintiff's allegations, the defendants would have violated a constitutional right, "the next, sequential step is to ask whether the right was clearly established." Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S. Ct. at 2156). The "clearly established" requirement is designed to assure that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S. Ct. at 2515. This second inquiry ensures "that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.

The "unlawfulness must be apparent" under preexisting law.4 Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L. Ed. 2d 271 (1986)). Therefore, a temporal requirement exists related to this inquiry. More particularly, a plaintiff must show that a reasonable public officer would not have believed her actions to be lawful in light of law that was clearly established at the time of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038 ("[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action[,] assessed in light of the legal rules that were `clearly established' at the time it was taken[.]") (emphasis added) (citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L. Ed. 2d 583 (2004) ("If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.") (emphasis added); Brosseau, 543 U.S. at 198, 125 S. Ct. at 599 ("Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.") (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th Cir. 1996) ("We know of no [preexisting] case which might have clearly told Clifton that he could not take the disciplinary action indicated by an investigation which was initiated before he even knew about the allegedly protected speech, and in circumstances where the public concern implication was doubtful.").

However, the Saucier framework was made non-mandatory by the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L. Ed. 2d 565 (2009), in which the Court concluded that, "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory." Thus, "judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id.

Despite the Supreme Court's modification of Saucier's analytical process, the substantive analysis remains unchanged; an officer is entitled to qualified immunity protection as long as he "could have believed" his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore, to deny immunity, a plaintiff must affirmatively demonstrate that "no reasonable competent officer would have" acted as the public official did. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).

III. FACTUAL BACKGROUND5

Mr. Barnes lived at 1222 Ratliff Street, Gadsden, Alabama, on November 17, 2012, the date of the law enforcement incident complained about in this case, and he still lives there now. AF No. 1.6 The property is owned by Mr. Barnes's sister, Glenda Blackburn ("Ms. Blackburn"), and Mr. Barnes pays her about $50 weekly to cover utilities and other expenses for living there. AF Nos. 2, 6.

Ms. Blackburn was previously married to Stephen Lloyd Blackburn ("Mr. Blackburn"), but she had divorced from him by the time of the events of this case in November 2012. AF No. 2. Prior to their divorce, Mr. Blackburn had lived at the 1222 Ratliff Street property for several years with Ms. Blackburn. AF No. 4.

In or around 2010, Mr. Blackburn went to prison and Mr. Barnes subsequently moved into the house with his sister and another occupant named Ralph Mathis ("Mr. Mathis"). AF No. 5. Eventually, Ms. Blackburn moved out and a new occupant, Paul Thompson ("Mr. Thompson"), moved in at some point during November 2012. Id.

On the morning of November 17, 2012, "barely" after daylight, Mr. Barnes woke up with someone beating on his back door. AF No. 8. Mr. Barnes refers to the door on which someone was beating as the "back door," but it is actually located on the side of the house. AF No. 9.1. The "bedroom" into which the back door opens was not anyone's bedroom at the time. AF No. 9.2. This "back door" was the customary mode of entrance and exit for the home. AF No. 9.3.

Mr. Barnes arose, picked up his Glock 26, 9mm pistol (that was fully loaded), and went to the door. AF Nos. 10, 16. Mr. Barnes testified that with the level of noise at the door, he thought someone was trying to get in the house. AF No. 11. His housemate, Mr. Mathis, had also awakened and was behind him in that back room. AF No. 12. Mr. Thompson was not present in the home that morning. AF No. 3.2.

Mr. Barnes opened the door (to the inside) far enough to "stick [his] head out," when he realized that several law enforcement officers were outside his door. AF No. 13.7 The officer(s) asked if Mr. Blackburn were there, to which Mr. Barnes replied, "No, he hasn't lived here in three years." AF No. 14.

At this point the door was opened more, and Mr. Barnes's pistol was in his right hand on top of the knob behind the door. AF No. 15.1. Mr. Barnes intended to keep the pistol hidden because he did not want the officers to react the way they in fact did react. AF No. 15.2. In other words, he was concerned about their reaction to his having a firearm in his hand. AF No. 16.

While Mr. Barnes was answering questions at the door, one or more officers "holler[ed] he has a gun." AF No. 18. Mr. Barnes testified that the officers already had their weapons drawn when he opened the door, but did not know whether they were actually pointing them at him or not. AF No. 19. Mr. Barnes heard multiple officers telling him to drop the gun and lie down. AF No. 20.

As Mr. Barnes was putting the pistol down, one of the officers grabbed his left arm, then his right arm, and Mr. Barnes was pulled out of the house. AF No. 21. At the time the pistol was at Mr. Barnes's feet to the right, just in front of him and would have been at the level of his head if he had stretched out on the ground. AF No. 22.1

Mr. Barnes was brought all the way out into the gravel driveway, beyond the short stoop (on which he would not have fit). AF No. 22.2. Mr. Barnes was taken down by the officers and handcuffed while lying on the gravel. AF No. 23. Mr. Barnes was then stood up and his pockets patted. AF No. 24. Mr. Barnes remained outside, standing next to his truck as two or three officers went inside the house. AF Nos. 24, 25. They were "just looking for people in the house" in every room rather than conducting a "more thorough search of the [place.]" AF Nos. 76, 77. A few minutes later, Mr. Barnes saw the officers exit the house. AF No. 28.

Mr. Barnes has no knowledge as to where any of the officers went inside the house although he speculates that an officer left a footprint on a wedding dress hanging in the back bedroom off the kitchen. AF No. 27.1. At the same time, Mr. Barnes does not know how long it has been since anyone, including his sister, had been in the back bedroom where the dress was located. AF No. 27.2.

Deputy Waldrop's Actions

Deputy Waldrop instructed the cuffs to be taken off Mr. Barnes and then he told Mr. Barnes to go inside the house with him. Id. After the house had been secured by Officers C. Lumpkin and S. Lumpkin, Deputy Waldrop and Mr. Barnes went inside the residence to the kitchen. AF No. 29; AF No. 86.

Deputy Waldrop told Mr. Barnes he was stupid for answering the door with a gun, came close to getting shot, and that he had "better get right with his maker." AF No. 29. The exchange between Deputy Waldrop and Mr. Barnes turned into an argument. AF No. 39.2.8 Deputy Waldrop remained inside for approximately one minute. AF No. 39.3.9

Officer C. Lumpkin's Actions

Officer C. Lumpkin was one of the Gadsden Officers who entered Mr. Barnes's home when he saw someone else (who turned out to be Mr. Mathis) inside the door. AF No. 46.1. Officer C. Lumpkin went inside to address Mr. Mathis and to "clear" the rest of the house. Id.; AF No. 46.2.

To clear the house, Officer C. Lumpkin testified that he and another officer walked through it to make sure there were no more persons in there. AF No. 47. The other person who entered the residence was his brother, Officer S. Lumpkin. AF No. 74. Officer C. Lumpkin indicated that their check for any other people in the house was for officers' safety purposes, as they had already encountered someone with a gun. AF No. 48.

Officer C. Lumpkin has done many round-ups, and this is the only occasion when a person answered the door with a gun in his hand. AF No. 49.1. He indicated that such an encounter was very unusual and testified that it was a "little bit scary" to him. AF No. 49.2.

Officer Thompson's Actions

Officer Thompson was among the officers who initially approached the door (and possibly was the one who knocked on it loudly). AF Nos. 52.1, 52.2. However, during the course of events on November 17, 2012, Officer Thompson did not ever step inside Mr. Barnes's home. AF No. 58.

IV. ANALYSIS

A. Count One-Illegal Seizure of Mr. Barnes

In Count One of his complaint, which is brought against all defendants, Mr. Barnes contends that:

(Doc. 27 at 7 ¶ 41). The Fourth Amendment establishes "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV.

"[A] seizure occurs when an officer, `by means of physical force or show of authority, has in some way restrained the liberty of a citizen. . . .'" Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir. 2011) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16, 20 L. Ed. 2d 889 (1968)). Further, "[a]n encounter between a police officer and a citizen becomes a seizure when `a reasonable person would not feel free to terminate the encounter.'" Roberts, 643 F.3d at 905 (quoting United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (quotation marks omitted)); see also Terry, 392 U.S. at 16, 88 S. Ct. at 1877 ("It is quite plain that the Fourth Amendment governs `seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime — `arrests' in traditional terminology.").

Assuming without deciding that each defendant who was present at Mr. Barnes's house engaged in some degree of seizure-qualifying conduct,10 Mr. Barnes's illegal seizure claim fails because Defendants acted constitutionally under the circumstances, including the reasonably perceived danger created by the firearm that Mr. Barnes held in his hand when he opened the door to his residence. Alternatively, to the extent that Defendants impermissibly crossed a constitutional line, they did not violate clearly established law or act in an obviously egregious manner and, thus, qualified immunity protects them from being personally liable to Mr. Barnes on this claim.

Concerning the constitutionality of Defendants' seizure of Mr. Barnes, the court is guided by the Supreme Court's seminal decision in Terry, supra. Under Terry,

United States v. White, 593 F.3d 1199, 1202-03 (11th Cir. 2010) (emphasis by underlining added).

Here, Defendants were undisputedly "absolutely certain" that Mr. Barnes was armed when the gun was spotted shortly after Mr. Barnes had answered the door. Consequently, their right to seize Mr. Barnes from inside of his home and subject him to a Terry detainment under the lesser constitutional standard of a reasonable articulable suspicion existed. See Croom v. Balkwill, 645 F.3d 1240, 1246 (11th Cir. 2011) ("However, beginning with Terry v. Ohio, the Supreme Court has recognized that certain types of limited detentions—i.e. seizures lacking the essential attributes of full, custodial arrests—may be constitutional even in the absence of probable cause."); cf. Croom, 645 F.3d at 1249 ("The officers' authority to detain Croom flowed not from the warrant, but rather from the Reasonableness Clause of the Fourth Amendment." (citing Michigan v. Summers, 452 U.S. 692, 697-706, 101 S.Ct. 2587, 2591-96, L. Ed. 2d 340 (1981))).11

The one firearm case cited by Mr. Barnes, Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375,146 L. Ed. 2d 254 (2000) (Doc. 57 at 14), is significantly dissimilar as it involved police seizing a hidden gun from a minor and charging that juvenile with various firearm crimes, 529 U.S. at 269, 120 S. Ct. at 1377, based upon an anonymous tip and not from law enforcement's own personal observations. See J.L., 529 U.S. at 270, 120 S. Ct. at 1378 ("In the instant case, the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller."). As the Supreme Court held in J.L., "an anonymous tip that a person is carrying a gun is, without more, [in]sufficient to justify a police officer's stop and frisk of that person." 529 U.S. at 268, 120 S. Ct. at 1377. In contrast to J.L., the Terry seizure of Mr. Barnes on account of a concealed gun was based on personal observations by law enforcement.

Furthermore, Defendants' use of handcuffs during this investigatory stop was reasonable, given Mr. Barnes's possession of a pistol and their general concern for safety.12 See Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1305-06 (11th Cir. 2006) ("[D]uring an investigatory stop, an officer can still handcuff a detainee when the officer reasonably believes that the detainee presents a potential threat to safety." (citing United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989))).

Alternatively, even if Defendants' seizure of Mr. Barnes violated his Fourth Amendment rights, qualified immunity insulates them from any liability for their unconstitutional actions. More specifically, "[a] law enforcement official who reasonably but mistakenly concludes that reasonable suspicion is present is still entitled to qualified immunity." Jackson v. Sauls, 206 F.3d 1156, 1165-66 (11th Cir. 2000). "When an officer asserts qualified immunity, the issue is not whether reasonable suspicion existed in fact, but whether the officer had `arguable' reasonable suspicion to support an investigatory stop." Jackson, 206 F.3d at 1166 (citing Williamson v. Mills, 65 F.3d 155, 157 (11th Cir. 1995)).

When Defendants knocked on the door, no constitutionally-recognized seizure occurred. Compare Jackson, 206 F.3d at 116 ("[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." (internal quotation marks omitted) (quoting Terry, 392 U.S. at 16, 88 S. Ct. at 1877)), with id. ("It is only when an officer, `by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred.'" (quoting Terry, 392 U.S. at 19 n.16, 88 S. Ct. at 1879 n.16)); cf. United States v. Taylor, 458 F.3d 1201, 1204 ("Thus, `[o]fficers are allowed to knock on a residence's door or otherwise approach the residence seeking to speak to the inhabitants just an any private citizen may.'" (quoting Estate of Smith v. Marasco, 318 F.3d 497, 519 (3d Cir. 2003))). Under both sides' version of the facts, after hearing someone knocking loudly, Mr. Barnes admits that he answered the door with a firearm in his right hand which he attempted, unsuccessfully, to hide from the officers' view because he was concerned about their reaction if the pistol was spotted. In light of these undisputed and unsettling set of facts, a reasonable police officer could have believed that an arguable reasonable suspicion for stopping Mr. Barnes existed, regardless of the scope or validity of the arrest warrant for Mr. Blackburn.

Importantly, Mr. Barnes concedes that Defendants were engaged in discretionary functions and cites to no cases which establish the clearly or obviously unconstitutional nature of their actions. As the Eleventh Circuit has explained a plaintiff's burden in opposing qualified immunity in the absence a dispute over the issue of an officer's discretionary authority:

Belcher v. City of Foley, 30 F.3d 1390, 1395-96 (11th Cir. 1994) (emphasis by underlining added); see also Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir. 1998) ("To overcome this immunity, Plaintiff has the burden of pointing to case law which `pre-date[s] the offic[ial]'s alleged improper conduct, involve[s] materially similar facts, and `truly compel[s]' the conclusion that the plaintiff had a right under federal law.'" (quoting Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998))).

Here, Mr. Barnes, at best, has minimally cited to general legal principles governing Fourth Amendment seizure law without developing the requisite specificity that a qualified immunity case customarily demands from a plaintiff. Furthermore, the far from extreme factual nature of Mr. Barnes's federal seizure claim means that this constitutional violation does not fall within that extraordinary class of so-called "obvious clarity" cases in which no preexisting binding authority is necessary to provide a public official with fair warning of his unconstitutional behavior. See Santamorena, 147 F.3d at 1340 n.6 ("[T]hese exceptional cases rarely arise.") (emphasis added); see also Gray, 458 F.3d at 1307 (listing examples of cases coming within the narrow "obvious clarity" category and describing them as all involving challenged conduct falling "`well beyond the `hazy border' that sometimes separates lawful conduct from unlawful conduct," such that every objectively reasonable officer would have known that the conduct was unlawful" (quoting Evans v. Stephens, 407 F.3d 1272, 1283 (11th Cir. 2005) (en banc))); cf. Rodriguez v. Farrell, 280 F.3d 1341, 1350 n.18 (11th Cir. 2002) ("We very occasionally encounter the exceptional case in which a defendant officer's acts are so egregious that preexisting, fact-specific precedent was not necessary to give clear warning to every reasonable . . . officer that what the defendant officer was doing must be `unreasonable' within the meaning of the Fourth Amendment.") (emphasis added); Gray, 458 F.3d at 1307 (concluding that officer's "conduct in handcuffing . . . a compliant [and unarmed], nine-year-old girl for the sole purpose of punishing her was an obvious violation of [the plaintiff's] Fourth Amendment rights"). Consequently, in opposing Defendants' qualified immunity defense on his unconstitutional seizure claim, Mr. Barnes has not met the clearly established law component and, summary judgment in favor of Defendants is alternatively appropriate for this independent reason.

B. Count Three-Illegal Search of Mr. Barnes's Residence

Count Three of Mr. Barnes's complaint contains allegations of an unconstitutional search of Mr. Barnes's home against Deputy Waldrop and Officers C. Lumpkin and Thompson only. More specifically, Mr. Barnes asserts that:

(Doc. 27 ¶ 43).

Actions of Officers Thompson and C. Lumpkin

Mr. Barnes's illegal search claim against Officer Thompson is easily addressed. Mr. Barnes has admitted that Officer Thompson never entered his home on November 17, 2012. This factual admission necessarily means that Officer Thompson did not personally participate in the clearing of Mr. Barnes's house or otherwise enter the premises. Consequently, he cannot be liable to Mr. Barnes for any Fourth Amendment violation attributable to his entering the home without a warrant as alleged in Count Three. Thus, summary judgment in Officer Thompson's favor on this constitutional claim is due to be entered.

The illegal search claim against Officer C. Lumpkin, however, requires much more discussion. Officer C. Lumpkin does not dispute "that the warrant per se [naming Mr. Blackburn] did not authorize a search of [Mr. Barnes]'s home." (Doc. 60 at 2). Officer C. Lumpkin also maintains that the mistaken belief that Mr. Blackburn was residing at the home was not the impetus for his actions in entering Mr. Barnes's residence. Id.

Officer C. Lumpkin contends, instead, that after Mr. Barnes came to the door with a hidden firearm in his hand, either exigent circumstances (Doc. 54 at 27-29) or, alternatively, the right to conduct a protective sweep (Doc. 52 at 17-19)13 authorized him (and Officer S. Lumpkin) to enter the home without a warrant. The court addresses exigent circumstances first.

Roberts, 643 F.3d at 905 (emphasis added).

An officer who relies upon the exigent circumstances exception bears the burden of showing why the doctrine applies. See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L. Ed. 2d 564 (1971) ("The exceptions [to the warrantless searches rule] are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative." (footnote omitted) (emphasis added)); cf. Sammons v. Taylor, 967 F.2d 1533, 1543 (11th Cir. 1992) ("Because an inventory search is an exception to the Fourth Amendment's warrant requirement, however, the government officer has the burden to show that the requirements of the inventory search exception have been met." (citing Coolidge, 403 U.S. at 455, 91 S. Ct. at 2032) (emphasis added)).

Situations in which the Eleventh Circuit has upheld a warrantless search of a home based upon exigent circumstances include:

McClish v. Nugent, 483 F.3d 1231, 1240-41 (11th Cir. 2007). None of these examples reflects facts that are comparable to this case-a warrantless entry into a home after an occupant, who was not the subject of an arrest warrant, answered the door with a gun in his hand that was partially hidden from law enforcement's view.

Additionally, the two cases cited in the Gadsden Officers' brief (Doc. 54 at 27) are significantly distinguishable. For example, Roberts deals with an officer's limited entry into the home of a plaintiff who had been threatening suicide. 643 F.3d at 906. The officer had come to the residence only after being "dispatched in response to a 911 call" from a concerned relative of the plaintiff. Id. The Eleventh Circuit first found no Fourth Amendment violation based upon the exigent circumstances doctrine and alternatively held that "no binding precedent . . . clearly established that probable cause and exigent circumstances immediately evaporate once an officer performing a welfare check for a possibly suicidal person sees that the person is merely alive." Id.

The second opinion, United States v. Holloway, 290 F.3d 1331, 1335 (11th Cir. 2002), likewise involves an emergency-related scenario, but procedurally reached the Eleventh Circuit as an evidentiary appeal in a criminal case. See id. at 1332 ("This case arises from a 911 call reporting gunshots and arguing originating from Appellant Robert Dale Holloway's residence."); id. ("On appeal, he argues the firearm and other evidence seized by the officers should have been suppressed as fruits of an unconstitutional search."). The Eleventh Circuit held that, in light of "the exigent circumstances of gunshots and arguing originating from Appellant's residence, the police officers were justified in conducting a warrantless search of the premises" and further that "neither the emergency search of Appellant's residence nor the seizure of the shotgun violated the Fourth Amendment's proscription against unreasonable searches and seizures." 290 F.3d at 1341.

As the Holloway court observed concerning an emergency situation:

Holloway, 290 F.3d at 1335.

Citing to Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L. Ed. 2d 276 (1990), Defendants alternatively contend that Officer C. Lumpkin's entry into Mr. Barnes's residence was authorized by the protective sweep doctrine.

In order to perform a protective sweep that comports with the requirements of the Fourth Amendment, the officers must in the first place be lawfully within the premises. See Caraballo, 595 F.3d at 1224-25.

United States v. Timmann, 741 F.3d 1170, 1181 (11th Cir. 2013) (emphasis added).

The Eleventh Circuit concluded in Timmann that law enforcement's warrantless entry and subsequent protective sweep were both improper:

741 F.3d at 1180-81 (footnotes omitted) (emphasis added).

In challenging the entrance into and limited search of his residence, Mr. Barnes relies primarily upon the criminal case of Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L. Ed. 2d 38 (1981). The Court framed the constitutional issue in Steagald as follows:

451 U.S. at 212, 101 S. Ct. at 1647-48 (emphasis added).

Deciding in favor of the person unnamed in the arrest warrant, the Supreme Court determined in Steagald that the petitioner's Fourth Amendment rights were violated:

Steagald, 451 U.S. at 216, 101 S.Ct. 1649-50 (emphasis added).

As the Supreme Court further explained:

Steagald, 451 U.S. at 213-14, 101 S. Ct. at 1648. Thus, an important distinction exists between the scope of the arrest warrant in Steagald showing no judicially-tested link to the third party's home address and the one before this court involving a geographical overlap between the last known address for Mr. Blackburn and the residence of Mr. Barnes-1222 Ratliff Street, Gadsden, Alabama.14 (Doc. 50-6 at 1).15

As the Gadsden Officers describe the reasons for entering Mr. Barnes's residence:

(Doc. 54 at 28-29).

Against this backdrop, the court finds that the constitutionality of Officer C. Lumpkin's conduct in entering Mr. Barnes's residence without his consent to be debatable under the Fourth Amendment (i.e., (i) no probable cause to believe that Mr. Barnes had committed any crime to directly justify an emergency-based exigent circumstances exception to the warrantless entry rule, and (ii) an attempted, but no actual execution of an arrest warrant against Mr. Blackburn (who was not presently living there) to directly justify a protective sweep exception to the warrantless entry rule). Bolstering this conclusion is the recognition that Officer C. Lumpkin bears the burden of demonstrating that an exception to the Fourth Amendment's warrantless entry rule applies. See, e.g., Buie, 494 U.S. at 337, 110 S. Ct. at 1100 (Stevens, J. concurring) ("In this case, to justify Officer Frolich's entry into the basement [to undergo a protective sweep], it is the State's burden to demonstrate that the officers had a reasonable basis for believing not only that someone in the basement might attack them or otherwise try to interfere with the arrest, but also that it would be safer to go down the stairs instead of simply guarding them from above until respondent had been removed from the house."); Timmann, 741 F.3d at 1178-79 ("The government bears the burden of demonstrating that the [exigent circumstances] exception applies." (citing Holloway, 290 F.3d at 1337)).

Nonetheless, the court concludes that Officer C. Lumpkins's actions, in the context of (i) trying to execute an arrest warrant for Mr. Blackburn that listed 1222 Ratliff Street, Gadsden, Alabama as his residential address; (ii) discovering Mr. Barnes's surprisingly armed status after he had answered the door; and (iii) dealing with the uncertain and potentially unsafe circumstances of additional armed persons within the premises, did not violate clearly established Fourth Amendment law. Cf. United States v. Yeary, 740 F.3d 569, 580 (11th Cir. 2014) ("[T]he arrest warrant, standing alone, would have given deputies the authority to enter the home." (citing Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L. Ed. 2d 639 (1980) ("[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."))). Defendants initially went to Mr. Barnes's residence with the arrest warrant for Mr. Blackburn because the address listed on Mr. Blackburn's driver license was the same property. If Mr. Blackburn had been on the premises, Defendants' limited entry into the home to execute that arrest warrant even in the absence of a separate search warrant would have been permissible under clearly established Fourth Amendment. See Steagald, 451 U.S. at 214 n.7, 101 S. Ct. at 1648 n.7 ("Because an arrest warrant authorizes the police to deprive a person of his liberty, it necessarily also authorizes a limited invasion of that person's privacy interest when it is necessary to arrest him in his home.").

While Mr. Barnes was not the subject of the arrest warrant which the officers were attempting to execute and also was never charged with a crime, his answering the door with a hidden firearm escalated the situation, reasonably caused a concern for officer safety, and resulted in Mr. Barnes's seizure, including being handcuffed. Under such fluid and unusual circumstances, including the presence of Mr. Mathis within the residence and the potential for other unknown and, perhaps armed, persons on the premises, it did not so obviously or plainly violate the Fourth Amendment for Officer C. Lumpkin (along with Officer S. Lumpkin) to undergo a limited protective sweep of the premises to make sure no other armed occupants were inside and ensure the officers' safety at the scene. Cf. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 289-99, 87 S.Ct. 1642, 1646, 18 L. Ed. 2d 782 (1967) ("The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.") (emphasis added); United States v. Burgos, 720 F.2d 1520, 1526 (11th Cir. 1983) ("Law enforcement officers who have lawfully apprehended a suspect on a portion of a structure (here it was an open porch built as a part of the home) which they have reason to believe contains dangerous third persons who might pose a threat to their safety have a right to conduct a reasonable security check of such premises.") (emphasis added); McClish, 483 F.3d at 1242, 1245-46 (finding absence of exigent circumstances in "reaching through McClish's open doorway to effect the arrest" without an arrest warrant due in part to "no hint of any threat to officer safety from an unarmed, 75-year old man opening the door in his bathrobe at 11:30 p.m.") (emphasis added).

Importantly, none of the cases cited by Mr. Barnes deals with an on-point binding factual scenario in which a non-party to an arrest warrant answered law enforcement's knock on the door to his residence with a hidden pistol. Further, nothing in the record suggests the occurrence of an obvious constitutional breach such as a sweep that expanded into an exhaustive and time-consuming search of Mr. Barnes's residence. See United States v. Rodgers, 924 F.2d 219, 222 (describing a protective sweep as being "narrowly confined to a cursory visual inspection of those places in which a person might be hiding") (internal quotation marks omitted) (quoting Buie, 494 U.S. at 327, 110 S. Ct. at 1094). Consequently, to the extent that the protective sweep infringed upon Mr. Barnes's Fourth Amendment rights, in the absence of crossing the line of clearly established law, qualified immunity protects Officer C. Lumpkin from any personal liability for his conduct. See Saucier, 533 U.S. at 205, 121 S. Ct. at 2158 ("The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct."); id. ("It is sometimes difficult for an officer to determine how the relevant legal doctrine, here [warrantless entries into a home], will apply to the factual situation the officer confronts."); see also Evans, 407 F.3d at 1283 ("Seldom does a general standard such as `to act reasonably' put officers on notice that certain conduct will violate federal law given the precise circumstances before them: Fourth Amendment law is intensely fact specific."); McClish, 483 F.3d at 1249-50 ("If the role of the `clearly established' prong of the qualified immunity inquiry is to `acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct,' Saucier, 533 U.S. at 205, 121 S.Ct. 2151, the apparent tension between Santana and Payton [which reach different constitutional outcomes on warrantless entries into a residence resulting in an arrest] requires such an honest acknowledgment here.").

Subsequent Entry and Seizure by Deputy Waldrop

After the residence had been secured by other officers, Deputy Waldrop told Mr. Barnes to go inside and Deputy Waldrop went with him. Mr. Barnes contends that

(Doc. 57 at 14-15).

As Deputy Waldrop explains the circumstances of this entering in his reply brief:

(Doc. 59 at 5 (emphasis added)).

Neither side has provided the court with much in terms of on-point case authority for their respective positions regarding Deputy Waldrop's subsequent entry into Mr. Barnes's home. In O'Rourke v. Hayes, 378 F.3d 1201 (11th Cir. 2004), the Eleventh Circuit held that the "mere entry" of a police officer into a private business building with an arrest warrant for a specific person, but without a warrant to search the commercial premises, constituted an unreasonable search. See id. at 1208 ("Even if he did not actually rummage around the office or go through closets or cabinets, his mere presence inside revealed to him things that he would otherwise have been unable to ascertain."). O'Rourke was decided well before the facts of this lawsuit took place and put Deputy Waldrop on clear notice that his post-sweep warrantless entry onto Mr. Barnes's private property (absent a concern for safety or other exigent circumstances) violated the Fourth Amendment. Consequently, while qualified immunity protects the officers who conducted the initial sweep of Mr. Barnes's home from liability, Deputy Waldrop's actions, which occurred well after the point in which any arguably threatening situation for law enforcement had ceased, are plainly wrong. See, e.g., Steagald, 451 U.S. at 214 n.7, 101 S. Ct. at 1648 n.7 ("As previously noted, absent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant.") (emphasis added).

Alternatively and although not expressly argued by Mr. Barnes, Deputy Waldrop's actions in ordering Mr. Barnes to go inside the home with him after the sweep could constitute an illegal seizure of Mr. Barnes because, in doing so, Deputy Waldrop was restraining Mr. Barnes's liberty without any valid law enforcement or safety reason for doing so. See Roberts, 643 F.3d at 905 ("An encounter between a police officer and a citizen becomes a seizure when `a reasonable person would not feel free to terminate the encounter.'" (quoting United States v. Jordan, 635 F.3d 1181, 1186 (11th Cir. 2011) (quotation marks omitted))). Importantly, the record, taken in the light most favorable to Mr. Barnes, reveals the one-sided nature of the post-sweep exchange between Mr. Barnes and Deputy Waldrop, made at the insistence of Deputy Waldrop.

While Deputy Waldrop superficially contends that a reasonable officer could have mistakenly believed that Mr. Barnes implicitly consented to his post-sweep commands and entry,16 he fails to develop any facts to support this contention. Cf. United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) ("Although the officers did not receive any explicit verbal consent from Ramirez-Chilel to enter, the officers did receive some sort of implied consent to enter from Ramirez-Chilel's body language that was not present in Gonzalez.") (emphasis added); id. ("[W]e find the officers' entry to be legal because we find no official show of force which would have `forced' the defendant to let the officers in, and we also find that Ramirez-Chilel demonstrated his consent to entry by `yielding the right-of-way' for the officers to enter.").

Moreover, to the extent Deputy Waldrop relies upon Mr. Barnes's silence as a signal for permission to go inside Mr. Barnes's home "to talk," his position is completely at odds with binding Eleventh Circuit authority to the contrary:

United States v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996) (footnote omitted) (emphasis added) (quoting United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990)), overruled on other grounds by Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L. Ed. 2d 485 (2009); McClish, 483 F.3d at 1241 ("The record does not reveal that McClish consented, and we have held that `whatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to sanction entry into the home based upon inferred consent.'" (quoting Gonzalez, 71 F.3d at 830) (emphasis added, alteration and quotation marks omitted)).

Here, the facts, taken in a light most reasonable to Mr. Barnes, are that Deputy Waldrop followed Mr. Barnes into his home after instructing Mr. Barnes to go inside. The record does not show that Mr. Barnes ever verbally (or somehow non-verbally through his body language implicitly) consented to Deputy Waldrop's subsequent orders and entry into his home. Under such circumstances, the law on implicit consent was clearly established by McClish and no reasonable officer could have believed that Mr. Barnes implicitly consented to that subsequent seizure of him and warrantless entry into his home.

Accordingly, Deputy Waldrop's Motion is DENIED on this Fourth Amendment (and final remaining) claim of Mr. Barnes's complaint.

IV. CONCLUSION

Therefore, for the reasons stated above, the Gadsden Officers' Motion is GRANTED as to all remaining counts of Mr. Frazier's second amended complaint. Deputy Waldrop's Motion is GRANTED as to the illegal seizure claim premised upon the initial doorway encounter with Mr. Barnes only and is otherwise DENIED. The court will set this case for a final pretrial conference by separate order.

DONE and ORDERED.