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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13245
Non-Argument Calendar
____________________
CONSTANCE JILES,
Plaintiff-Appellee,
versus
ANGIE REBECCA LOWERY,
individually and in her official capacity as
an employee of the Whitfield
County Sheriff's Office,
BRANDON FINCHER,
individually and in his official capacity as
an employee of Whitfield
County Sheriff's Office,
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2 Opinion of the Court 22-13245
Defendants-Appellants,
SCOTT CHITWOOD, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:20-cv-00162-MHC
____________________
Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRANCH, Cir-
cuit Judges.
PER CURIAM:
Lieutenant Angie Rebecca Lowery and Deputy Brandon
Fincher appeal the denial of qualified immunity. Constance Jiles
complained that Lowery unlawfully entered the garage attached to
her home, without her consent or exigent circumstances, and ar-
rested her without a warrant, and Fincher failed to intervene to
stop the unlawful arrest. The officers moved for summary judg-
ment based, in part, on qualified immunity. The district court de-
nied their motion for qualified immunity. We affirm.
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22-13245 Opinion of the Court 3
I. BACKGROUND
We view the evidence in the light most favorable to Jiles as
the nonmoving party. Lee v. Ferraro,
284 F.3d 1188, 1190 (11th Cir.
2002). On July 15, 2018, Jiles was upstairs at her home while her
six-year-old and eight-year-old daughters played outside the gar-
age. Jiles’s daughters ran upstairs to her, screaming that two un-
known men were in the garage. The garage was at the bottom of a
steep driveway and had two doors that raised and lowered verti-
cally, as well as an interior door to the home. Thirteen people, in-
cluding Jiles, were in the home. Jiles entered the garage and con-
fronted the “rough looking” men, who told Jiles that they “didn’t
have to talk to [Jiles]” and “had a right to be there.” The men were
later identified as Christopher Moore and Jason Goss, who were
sent there to repossess Jiles’s husband’s Harley-Davidson motorcy-
cle.
The confrontation escalated quickly. Several of Jiles’s family
members joined her in yelling at the men. Jiles told the men that if
they “didn’t get the hell out,” she was going to get a gun and “blow
their heads off.” Jiles did not have a gun in the house but wanted
to scare the men off. Moore stepped back toward the garage en-
trance, but Goss “thought that this was a laughing matter” and
walked further into the garage. Goss knocked over a space heater,
which resulted in glass being broken and Jiles’s eight-year-old
daughter cutting her toe. Jiles became “really pissed [] off” that
Goss had injured her daughter. As Goss was leaving the garage,
Jiles took the palm of her hand and “pushed him out.” Goss told
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Jiles that she was going to jail for assault and called the police.
Meanwhile, one of Jiles’s daughters called the police and handed
the phone to Jiles, and Jiles’s husband drove off on the motorcycle.
Dispatch called Lowery and Fincher to the residence about
a subject in the garage and a “lady making threats to shoot some-
body.” The written dispatch notes to Lowery and Fincher advised
that Jiles said that she did not have a firearm. Dispatch also relayed
Lowery’s instructions to the men to leave the scene for their safety,
but the men told dispatch that they would not leave, which sug-
gested to Lowery that the men were not “too scared.” When Low-
ery and Fincher pulled up to the residence, the men were sitting in
their truck on the roadway in front of the house. The men admitted
to being in Jiles’s garage to verify the vehicle identification number
on the motorcycle, and Goss said that Jiles had hit him in the back.
At that time, Lowery did not know if the men had a right to enter
the garage, but she knew that she did not have probable cause to
arrest Jiles.
After speaking with the men, Lowery walked down the
driveway toward Jiles, who was sitting in the garage, and yelled,
“What’s the problem?” Fincher followed Lowery to the garage.
Jiles’s son-in-law began recording on his phone and told Jiles that
Lowery, who had responded to a prior disturbance at the house,
was “very rude and unprofessional and comes across as
a . . . b**ch.” Because Lowery’s “type of demeanor . . . rubbed
[Jiles] totally the wrong way,” Jiles told Lowery to change her tone.
Lowery insisted that she had a right to be there and to ask Jiles
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22-13245 Opinion of the Court 5
questions. Jiles responded that “respect goes both ways” and that
Lowery could “get somebody else out” to talk to her, but Jiles
maintained that she was not going to talk to Lowery until Lowery
changed her demeanor.
Jiles then pressed a button that closed the left-side garage
door, as viewed from the front of the house, “in [Lowery’s] face.”
As Jiles was in the process of closing the right-side garage door,
Lowery walked in through that door yelling continuously “You’re
going to talk to me, lady.” It is unclear exactly where the second
garage door was in the closing process when Lowery walked
through it, but Lowery “felt as though it was coming down on
[her]” and that the door “was closing in the process of [Lowery]
going under it.” After walking inside, Lowery grabbed Jiles’s arm
and took her outside the garage, put her on the ground using a
leg-sweep maneuver, and landed on top of her. Fincher tried to get
Jiles’s hands but stopped to draw his taser and tell Jiles’s family
members to get back.
According to Lowery, she believed that she could enter
Jiles’s home without a warrant because it was a “hot pursuit” for
the alleged crime of assault and battery, although Lowery did not
believe that Jiles tried to flee. Lowery did not tell Jiles that she was
under arrest for obstruction for refusing to cooperate with the in-
vestigation until they were outside the garage because Lowery did
not want Jiles to close the other garage door and run inside the
house. After Lowery handcuffed Jiles, Fincher and Lowery walked
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Jiles backwards up the driveway and placed Jiles in the patrol car.
Moore was charged with criminal trespass.
Jiles sued Lowery and Fincher and alleged that their conduct
violated the Fourth Amendment.
42 U.S.C. § 1983. The officers
moved for summary judgment based, in part, on qualified immun-
ity.
The district court denied the motion for summary judgment
based on qualified immunity. The district court ruled that it was
undisputed that Lowery and Fincher were engaged in a discretion-
ary function. But, as to Lowery, it ruled that the evidence did not
support her contention that Jiles consented or that there were exi-
gent circumstances to justify Lowery’s entry into the garage. And
the district court agreed with Jiles that Lowery’s actions violated
the Fourth Amendment as clearly established by Coffin v. Brandau,
642 F.3d 999 (11th Cir. 2011) (en banc).
The district court also ruled that Fincher was not entitled to
qualified immunity. The district court stated that “[b]ecause
Fincher was engaged in a discretionary function, the burden
shift[ed] to Jiles to show that qualified immunity d[id] not apply.”
The district court found that there was a disputed issue of material
fact about whether Fincher was in a position to intervene because
he had turned away to deal with Jiles’s family members. But the
district court viewed the evidence in the light most favorable to
Jiles and ruled that, if Fincher was in a position to intervene to stop
the arrest, he violated clearly established federal law by not doing
so.
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II. STANDARD OF REVIEW
“We review de novo whether . . . [law enforcement] officers
are entitled to immunity.” Black v. Wigington,
811 F.3d 1259, 1265
(11th Cir. 2016). We resolve any issues of material fact in Jiles’s fa-
vor and then address the legal question of whether the officers are
entitled to qualified immunity using that version of the facts. See
Penley v. Eslinger,
605 F.3d 843, 848-49 (11th Cir. 2010).
III. DISCUSSION
Qualified immunity shields officials who are acting within
their discretionary authority from liability when their conduct does
not violate a federal statutory or constitutional right that was
clearly established at the time of the challenged action. Williams v.
Aguirre,
965 F.3d 1147, 1156 (11th Cir. 2020). If the official is acting
within the scope of her discretionary authority when she commits
the allegedly unlawful actions, the plaintiff must prove “that quali-
fied immunity is not appropriate.” Penley,
605 F.3d at 849 (quoting
Ferraro,
284 F.3d at 1194). “We are required to grant qualified im-
munity to a defendant official unless the plaintiff can demonstrate
two things: (1) that the facts, when construed in the plaintiff’s fa-
vor, show that the official committed a constitutional violation
and, if so, (2) that the law, at the time of the official’s act, clearly
established the unconstitutionality of that conduct.” Singletary v.
Vargas,
804 F.3d 1174, 1180 (11th Cir. 2015). Because Jiles does not
dispute that Lowery and Fincher were acting within their discre-
tionary authority, this appeal turns on whether Jiles met her
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burden of establishing that the officers are not entitled to qualified
immunity. See
id. We conclude that she did.
A. Lowery’s Argument for Qualified Immunity Fails.
Lowery concedes that a warrantless arrest in a suspect’s gar-
age generally is unlawful but argues that the district court erred in
ruling that the arrest was unlawful based on clearly established law.
Lowery argues that, unlike the deputies in Coffin, she had an ob-
jectively reasonable, though mistaken, good faith belief that she
had at least implied, if not express, consent to enter the garage be-
cause of Jiles’s call to 911. Alternatively, Lowery argues that exigent
circumstances were present. We disagree.
Under the Fourth Amendment, seizures inside a home with-
out a warrant are presumptively unreasonable. Payton v. New
York,
445 U.S. 573, 586 (1980). The existence of probable cause
alone does not validate a warrantless home arrest. Bashir v. Rock-
dale County,
445 F.3d 1323, 1328 (11th Cir. 2006). Instead, “a war-
rantless arrest in a home violates the Fourth Amendment unless
the arresting officer had probable cause to make the arrest and ei-
ther consent to enter or exigent circumstances demanding that the
officer enter the home without a warrant.”
Id. It is the officials’ bur-
den to prove that their presence in the home was justified by exi-
gent circumstances or consent.
Id.
No reasonable officer would believe they had Jiles’s volun-
tary consent to enter. See Illinois v. Rodriguez,
497 U.S. 177, 181
(1990). Jiles closed one of the garage doors in Lowery’s face and
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22-13245 Opinion of the Court 9
was in the process of closing the second garage door when Lowery
entered the garage anyway. And Jiles already had told Lowery that
she would not talk to Lowery. Although we have held that consent
can be implied under some circumstances, such as where a defend-
ant has yielded the right-of-way in response to an officer’s request
for admission to the home, no reasonable officer would construe
Jiles’s words and actions as implying consent to enter the garage.
See, e.g., United States v. Ramirez-Chilel,
289 F.3d 744, 752 (11th
Cir. 2002). Indeed, Lowery’s admission that she entered the garage
because she was afraid that Jiles would successfully close the garage
doors contradicts her position that she believed Jiles consented to
the entry. Put simply, stating that one will not answer an officer’s
questions, closing a door in the officer’s face, and attempting to
close a second door in front of the officer adequately communi-
cates that the officer does not have consent to enter.
No reasonable officer would believe that the circumstances
were exigent. The exception for exigent circumstances exists for
situations where “the inevitable delay incident to obtaining a war-
rant must give way to an urgent need for immediate action.”
McClish v. Nugent,
483 F.3d 1231, 1240 (11th Cir. 2007). Exigent
circumstances that have justified warrantless entries into the home
have included preventing the destruction of evidence, breaking up
a violent fight, putting out a fire, and pursuing a fleeing suspect.
See
id. at 1240-41.
Exigent circumstances did not exist here. The record does
not support Lowery’s argument that the scene was “chaotic” when
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10 Opinion of the Court 22-13245
the officers arrived. Instead, when Lowery and Fincher arrived, the
men were sitting in their truck, and Lowery could not even see Jiles
from the roadway. So there was no ongoing fight between the par-
ties that required Lowery’s intrusion into the garage. Although
Lowery insists that Jiles’s threats to shoot the men presented an
exigent circumstance, Lowery testified that she believed her reason
for entering the garage was her concern that Jiles, who had already
shut one garage door, would shut the other garage door. And the
record lacks any support for Lowery’s argument that rendering
medical aid to Jiles’s daughter was behind her decision to enter the
garage and grab Jiles. No reasonable officer would believe that the
circumstances were sufficiently exigent to justify a warrantless en-
try into the Jiles’s garage, and Lowery was not permitted to make
a warrantless arrest.
Because Jiles met her burden of establishing a Fourth
Amendment violation, we must consider whether it was clearly es-
tablished that Lowery’s conduct was unconstitutional. See Sin-
gletary,
804 F.3d at 1180. Qualified immunity may only be denied
when the officers have “fair and clear warning of what the Consti-
tution requires,” such that a reasonable officer would understand
that her conduct violates a constitutional right. City & Cnty. of San
Francisco v. Sheehan,
575 U.S. 600, 617 (2015). The unlawfulness
of the conduct must be apparent from the pre-existing law but does
not require “[e]xact factual identity with a previously decided
case.” Coffin,
642 F.3d at 1013. This “fair warning” inquiry “must
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22-13245 Opinion of the Court 11
be undertaken in light of the specific context of the case, not as a
broad general proposition.”
Id.
The unlawfulness of Lowery’s conduct was established in
Coffin. The crucial question in Coffin was whether the law was
clearly established that Fourth Amendment protection extended to
an open and attached garage for qualified-immunity purposes.
Id.
at 1010. The deputies in Coffin entered the Coffins’ attached garage
after Ms. Coffin told the deputies to leave and while she attempted
to close the garage door.
Id. at 1012-13. Although we declined to
hold that entering an open garage to gain access to an interior door
to the home was a Fourth Amendment violation in every case, we
held that the deputies violated the Fourth Amendment by entering
the garage despite Ms. Coffins’s attempt to close the garage door
to maintain privacy and verbal communication that the deputies
were not welcome to enter.
Id. Nevertheless, we affirmed the grant
of qualified immunity to the deputies in Coffin because it was not
clearly established at the time that their actions violated the Fourth
Amendment.
Id. at 1018.
The same cannot be said now. Lowery’s entry into Jiles’s
garage, after she had closed one garage door in Lowery’s face and
was attempting to close another, and while maintaining that she
would not talk to Lowery, is “fundamentally similar” to the depu-
ties’ unconstitutional conduct in entering the open, attached gar-
age in Coffin.
Id. at 1015. Because the unlawfulness of Lowery’s
conduct was clearly established at the time of Jiles’s arrest, the dis-
trict court did not err in denying qualified immunity to Lowery.
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Singletary,
804 F.3d at 1180. Because “each defendant is entitled to
an independent qualified-immunity analysis as it relates to his or
her actions,” we next consider whether Fincher was entitled to
qualified immunity based on “only the actions and omissions in
which [he] engaged.” Alcocer v. Mills,
906 F.3d 944, 951 (11th Cir.
2018).
B. Fincher’s Argument for Qualified Immunity Fails.
Fincher argues that Jiles failed to present caselaw that clearly
established that Fincher had a duty to intervene to stop her unlaw-
ful arrest. “[A]n officer can be liable for failing to intervene when
another officer uses excessive force” if he “is in a position to inter-
vene and fails to do so.” Priester v. City of Riviera Beach, Fla.,
208
F.3d 919, 924 (11th Cir. 2000). Because damages for false arrest in-
clude damages for use of force to effect that false arrest, a claim that
force applied during a false arrest is excessive is subsumed in the
false arrest claim. See Jackson v. Sauls,
206 F.3d 1156, 1171 (11th
Cir. 2000); Williamson v. Mills,
65 F.3d 155, 158-59 (11th Cir. 1995).
The record reveals a genuine factual dispute about whether
Fincher was in a position to intervene to stop Lowery’s arrest of
Jiles. Under Fincher’s version of events, his involvement in the ar-
rest was limited to his attempt to keep Jiles’s family away from him-
self and Lowery during her arrest of Jiles. But Lowery reported
that, when she first grabbed Jiles’s arm, Fincher assisted by grab-
bing Jiles’s other arm to put handcuffs on Jiles. Viewed in the light
most favorable to Jiles, there is substantial evidence that Fincher
was in a position to intervene. Because a reasonable jury could find
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22-13245 Opinion of the Court 13
that Fincher was in a position to intervene to stop Lowery from
unlawfully arresting Jiles, as was his duty under clearly established
law, see Priester,
208 F.3d at 924, the district court did not err in
denying qualified immunity to Fincher. And although Fincher ar-
gues that the district court erred by placing the burden on him to
prove entitlement to qualified immunity, we disagree. The district
court specified that the “burden shift[ed] to Jiles to show that qual-
ified immunity d[id] not apply,” and we are satisfied that the district
court correctly found that Jiles met her burden.
IV. CONCLUSION
We AFFIRM the partial denial of summary judgment based
on qualified immunity to Lieutenant Lowery and Deputy Fincher.
