Terry Dukes, Sr. v. Chase Gregory

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10014

____________________

TERRY DUKES, SR.,

Plaintiff-Appellee,

versus

SHERIFF OF LEVY COUNTY, FLORIDA, et al.,

Defendants,

CHASE GREGORY,

Corporal, in his individual capacity,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 1:23-cv-00045-AW-HTC

____________________

Before WILLIAM PRYOR, Chief Judge, and LUCK and BRASHER, Cir-

cuit Judges.

BRASHER, Circuit Judge:

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2 Opinion of the Court 24-10014

Officer Chase Gregory entered the home of Terry Dukes Sr.

without a warrant or exigency, after Dukes opened a door to his

home and walked to his bedroom without any communication

with the officer. Once inside, Officer Gregory tased and handcuffed

Dukes in his bedroom. Dukes sued the officer, in his individual ca-

pacity, for unlawful entry and unlawful seizure in violation of the

Fourth Amendment. Officer Gregory moved for summary judg-

ment based on qualified immunity. The district court denied that

motion, and Officer Gregory appealed. Construing all facts in favor

of Dukes, we conclude that Officer Gregory’s entry violated

Dukes’s clearly established Fourth Amendment rights. Accord-

ingly, we affirm the district court’s denial of summary judgment as

to Dukes’s unlawful entry claim. But because Dukes’s unlawful sei-

zure claim (unlawful arrest or detention, and excessive force) is en-

tirely derivative of his wrongful entry claim, we vacate the district

court’s denial of summary judgment on his unlawful seizure claim

and remand with instructions to consider that claim as subsumed

into his claim for unlawful entry.

I.

A.

Early in the morning on May 25, 2019, the Levy County

Sheriff’s Office was alerted that plaintiff Dukes’s son—Terry Dukes

Jr. (“Junior”)—had assaulted his pregnant girlfriend and was possi-

bly armed and on drugs. Junior stayed at Dukes’s home from time

to time, and officers thought they might find Junior there.

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So that same morning, still before sunrise, Officer Gregory

and others went to Dukes’s home and approached it from different

sides. Officer Gregory stood on the ground next to a handrail lining

an elevated stoop at the home’s back door. Another officer an-

nounced, “Sheriff’s Office,” and knocked once on the side of the

home and twice at the front door. Thinking it was Junior, Dukes

then stated, “I’m coming,” opened the back door—where no of-

ficer had knocked—and turned and walked back toward the inte-

rior of the home, leaving the door open. Dukes could not see Of-

ficer Gregory because of the way he was positioned at the back of

the home, and they did not speak.

Officer Gregory entered the home through the open back

door. He passed through a hall and kitchen area and only then an-

nounced his presence. The home was dark—the only light came

from Dukes’s phone and the officers’ flashlights. Dukes, who had

been naked, was in a bedroom, where there was a firearm.

The officers confronted Dukes in the bedroom and ordered

him to get on the ground. Dukes told Officer Gregory and the oth-

ers repeatedly that he was Terry Dukes Sr. and not Junior, that Jun-

ior did not come home “last night,” and that Dukes was “trying to

go to work.” Later at his deposition, Officer Gregory stated that if

he had been “able to see [Dukes’s] face,” he “would’ve known that

this was Dukes, Sr. and not Dukes, Jr.”

The officers ordered Dukes to not move. Dukes reached for

his pants, however. Officer Gregory then tased Dukes, handcuffed

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4 Opinion of the Court 24-10014

him, and escorted him outside, where he remained in handcuffs for

fifteen to thirty minutes.

B.

Dukes filed suit against Officer Gregory and another officer.

Dukes’s amended complaint brought two claims relevant to this

appeal: (1) count III alleged that Officer Gregory committed “un-

lawful entry” in violation of the Fourth Amendment; (2) count IV

alleged that, in violation of the Fourth Amendment, Officer Greg-

ory committed “unlawful seizure” by unlawfully arresting or de-

taining him and by subjecting him to “excessive force.”

After the close of discovery, Officer Gregory moved for

summary judgment on Dukes’s claims, asserting that qualified im-

munity protected him against counts III and IV. The district court

denied Officer Gregory’s summary judgment motion as to

counts III and IV. The court reasoned that, on those two counts,

“material factual disputes” precluded qualified immunity. Officer

Gregory timely appealed.

II.

We apply de novo review to all the issues in this appeal. We

review our jurisdiction de novo. Nelson v. Tompkins, 89 F.4th 1289,

1295 (11th Cir. 2024). Likewise, we review the denial of qualified

immunity at summary judgment de novo, viewing the facts in the

light most favorable to the nonmoving party. Ireland v. Prummell,

53 F.4th 1274, 1297 (11th Cir. 2022); see FED. R. CIV. P. 56(c).

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III.

Our analysis proceeds in three parts. First, we analyze

whether we have jurisdiction over this interlocutory appeal. Sec-

ond, we assess whether the district court erred in denying Officer

Gregory summary judgment as to Dukes’s claim for unlawful en-

try. Third, we assess whether the district court erred in denying

Officer Gregory summary judgment as to Dukes’s claim for unlaw-

ful seizure.

A.

We start with our jurisdiction over this interlocutory appeal.

“Whether we have interlocutory jurisdiction to review the denial

of summary judgment on qualified immunity grounds depends on

the type of issues involved in the appeal.” English v. City of Gaines-

ville, 75 F.4th 1151, 1155 (11th Cir. 2023) (citation modified). When

the appeal raises only issues of “evidentiary sufficiency”—in other

words, “fact-related disputes about whether the evidence could

support a finding that particular conduct occurred”—we lack juris-

diction. Nelson, 89 F.4th at 1295 (citation modified).

But some appeals raise both issues of fact and issues of law.

“When an official moves for summary judgment based on qualified

immunity, a district judge must determine whether there is a gen-

uine issue of material fact as to whether the official committed con-

duct that violated clearly established law.” English, 75 F.4th at 1155

(citation modified). That determination may entail two parts:

“(1) defining the official’s conduct, based on the record and viewed

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most favorably to the non-moving party, and (2) determining

whether a reasonable public official could have believed that the

questioned conduct was lawful under clearly established law.” Koch

v. Rugg, 221 F.3d 1283, 1295 (11th Cir. 2000) (footnote omitted).

“[A] plaintiff may not base an interlocutory appeal on the district

court’s first determination by itself.” English, 75 F.4th at 1155–56 (ci-

tation modified). But when an appeal raises both of these qualified

immunity issues—or raises only the second, an abstract issue of

law—we have jurisdiction for de novo review. Id.; Nelson, 89 F.4th

at 1296.

Here, there are both issues of evidentiary sufficiency and of

law. First, we must decide whether the evidence was sufficient for

a reasonable jury to find that Dukes did not give consent for Officer

Gregory to enter—this is a factual issue that the district court de-

termined is in genuine dispute. See Gill ex rel. K.C.R. v. Judd, 941 F.3d

504, 524 (11th Cir. 2019) (“A factfinder must . . . determine whether

in fact there was consent . . . .”). To decide this factual issue, we

may either “accept the district court’s findings of fact if they are

adequate,” or “conduct our own analysis of the facts in the light

most favorable to the plaintiff.” Nelson, 89 F.4th at 1296 (citation

modified). Then, after we resolve the factual issue, we must decide

whether a “reasonable public official could have believed” that Of-

ficer Gregory’s entry and subsequent seizure were “lawful under

clearly established law.” Koch, 221 F.3d at 1295. Specifically, as we

explain below, we must decide whether the law clearly established

that Dukes’s actions—opening a door and retreating without any

communication with an officer—did not create consent to that

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officer’s entry.

Because the parties raise both evidentiary sufficiency and

clearly-established-law issues on appeal, we have jurisdiction to de-

cide both issues. Nelson, 89 F.4th at 1296.

B.

Turning to the merits, we now address whether the district

court erred in denying summary judgment to Officer Gregory on

Dukes’s Fourth Amendment claim for unlawful entry (count III).

Qualified immunity does not protect Officer Gregory against this

claim at summary judgment because (1) a jury could conclude that

Officer Gregory entered Dukes’s home without Dukes’s consent,

in violation of his Fourth Amendment rights, and (2) when he en-

tered, it was clearly established that his conduct violated Dukes’s

Fourth Amendment rights.

1.

We begin with the evidentiary sufficiency question—

whether a jury could find that Officer Gregory entered Dukes’s

home without his consent, in violation of his Fourth Amendment

rights.

The Fourth Amendment prohibits warrantless entry into a

home without either an exigency justifying entry or consent to en-

ter. Bashir v. Rockdale County, 445 F.3d 1323, 1328 (11th Cir. 2006).

Indeed, “the very core” of the Fourth Amendment is “the right of

a man to retreat into his own home and there be free from unrea-

sonable governmental intrusion”—and so, “the Fourth

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8 Opinion of the Court 24-10014

Amendment has drawn a firm line” at the threshold of the home.

Payton v. New York, 445 U.S. 573, 589–90 (1980) (citation modified).

That “threshold may not reasonably be crossed without a war-

rant,” absent a few “jealously and carefully drawn” exceptions.

McClish v. Nugent, 483 F.3d 1231, 1240–41 (11th Cir. 2007) (citation

modified). One exception is an exigency—“a situation where the

inevitable delay incident to obtaining a warrant must give way to

an urgent need for immediate action.” United States v. Burgos, 720

F.2d 1520, 1526 (11th Cir. 1983). The other exception to the war-

rant requirement is consent to entry. McClish, 483 F.3d at 1240;

Bashir, 445 F.3d at 1328. That consent must be voluntary—not the

“product of duress or coercion,” Schneckloth v. Bustamonte, 412 U.S.

218, 227 (1973), but “the product of an essentially free and uncon-

strained choice,” United States v. Gonzalez, 71 F.3d 819, 829 (11th

Cir. 1996) (citation modified), abrogated on other grounds by, Arizona

v. Gant, 556 U.S. 332 (2009).

Here, the parties do not dispute that Officer Gregory lacked

a warrant or an exigency to enter, or the legal proposition that a

warrantless entry without consent or exigency violates the Fourth

Amendment. They dispute whether the evidence is sufficient for a

jury to find an absence of consent. That question—whether Dukes

consented to Officer Gregory’s entry—turns on the “totality of all

the circumstances.” Judd, 941 F.3d at 522 (citation modified). We

review this evidentiary sufficiency dispute anew, choosing to “con-

duct our own factual analysis.” Nelson, 89 F.4th at 1296 (citation

modified).

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Viewed in the light most favorable to Dukes, we conclude

that a reasonable jury could find that Dukes never consented, ei-

ther explicitly or implicitly, to Officer Gregory entering his home.

It was early in the morning before sunrise. Officers knocked and

announced, “Sheriff’s Office,” but Dukes, who was hard of hearing,

did not hear that announcement and did not know that the police

officers were outside in the dark. Dukes thought instead that his

son had returned home, and thus Dukes opened the back door.

Dukes did not see Officer Gregory outside, and they did not speak.

Dukes returned to his bedroom, leaving the door open. Then, Of-

ficer Gregory—without communicating with Dukes, let alone ask-

ing him for permission to come in—walked into Dukes’s home

through the open back door. This evidence is sufficient for a jury

to find that Dukes did not convey to the officers outside his house

that they had permission to enter.

Officer Gregory says this case is like Judd, but he is wrong.

In Judd, the officer and resident communicated verbally and non-

verbally, suggesting a request for entry and a granting of that re-

quest. See 941 F.3d at 525. The officer told the resident that he “was

there to arrest” someone in the house; the resident asked the officer

to “hang on for a minute while he put the dog up,” and then re-

turned minutes later and “opened the door wide and stepped

back.” Id. at 525. We held, after a jury trial, that a reasonable jury

could conclude that the resident had consented to the officer’s en-

try. See id. at 523–26. Here, however, we are at summary judgment,

not after a jury trial. And Officer Gregory and Dukes never com-

municated before Officer Gregory entered. To be sure, another

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officer had knocked on the front door and side of the home, but

unlike the resident in Judd, Dukes neither opened a door that an

officer had knocked on nor communicated with anyone standing

near the door he opened.

Because a jury could conclude that Officer Gregory entered

Dukes’s home without his consent—and without a warrant or exi-

gency, either—a jury could conclude that the officer entered

Dukes’s home in violation of his Fourth Amendment rights. See

Bashir, 445 F.3d at 1328; McClish, 483 F.3d at 1240.

2.

The next question is whether, at the time Officer Gregory

entered, it was clearly established that his actions violated Dukes’s

Fourth Amendment rights. The answer is yes. A right can be clearly

established by, among other routes, “materially similar” caselaw.

See Jones v. Fransen, 857 F.3d 843, 852 (11th Cir. 2017). Here, if we

construe the facts in the light most favorable to Dukes, materially

similar caselaw pre-dating Officer Gregory’s actions makes clear

that the Fourth Amendment prohibited his conduct.

Nearly two decades ago, we held that a resident’s decision

to open a door in response to an officer’s knock does not by itself

give an officer permission to enter a home. See McClish, 483 F.3d at

1247–49. We explained that, “although an individual who opens

the door may provide an officer with more information than a per-

son who chooses to remain behind a closed door . . . this is quite

distinct from creating, all in itself, a right of entry to seize a person

from his home without a warrant.” Id. at 1247.

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In Gonzalez and Bashir, we applied that principle to hold that

officers violated the Fourth Amendment when, without an exi-

gency or a warrant, they followed a resident into a home through

an open door. In Gonzalez, we concluded that an officer violated

the Fourth Amendment when a woman never affirmatively agreed

to an officer’s request to enter her residence, but he nonetheless

followed her into her home, with no warrant or exigency, after she

“went into her house to get a drink of water.” 71 F.3d at 828–30.

Even though the woman did not bar or object to the officer’s en-

try—she did not, for instance, close the open door to impede the

officer from going “through the garage to get to the kitchen”—we

concluded that the officer could not enter. Id. at 823; see id. at 828–

29. Similarly in Bashir, an officer spoke with plaintiff Saleem Bashir

outside his home, and then “followed Bashir through the doorway

and into the kitchen” without a warrant or exigent circumstances,

and without asking or receiving “permission to enter the resi-

dence.” 445 F.3d at 1326, 1328. Although the officer followed him

through the doorway without Bashir’s objection, we reasoned that

Bashir did not give consent to the officer to enter, because the of-

ficer “never asked Bashir for permission to enter the house and

Bashir never expressly invited him inside.” Id. at 1328–29.

With the facts viewed in the light most favorable to Dukes,

this case is on all fours with Gonzalez and Bashir in every way that

matters. In this case, Dukes opened a door to his house and re-

turned to his bedroom. Like the residents in Gonzalez and Bashir,

he left the door open behind him. Like the officers in Gonzalez and

Bashir, Officer Gregory followed Dukes into the interior of his

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12 Opinion of the Court 24-10014

home without a warrant or exigency, without being invited to en-

ter, and without Dukes granting any request to enter. To make

matters worse, unlike the officers in Gonzalez and Bashir, Officer

Gregory never even communicated with Dukes before entering

the home. In fact, Dukes testified that when he opened the back

door, he did not even know any police officers were outside.

If there were any doubt about how these authorities apply

in the qualified immunity context, that doubt is resolved in Bashir

itself. We not only found a violation of the Fourth Amendment in

Bashir; we also held that, for qualified immunity purposes, it was

clearly established that the officer’s conduct violated the Fourth

Amendment. See 445 F.3d at 1331. We said that “Gonzalez . . . [wa]s

not distinguishable in a fair way from the facts of th[at] case.” Id.

(citation modified). And we said that “Gonzalez clearly established

a reasonable officer in [the defendant officer’s] position could not

infer consent from Bashir’s conduct.” Id. at 1331. That was so, we

concluded, because the officer neither asked Bashir for permission

to enter nor received an invitation to come inside. See id. at 1328–

29. The same is true here. Viewing the evidence in the light most

favorable to Dukes, the facts here are not distinguishable in any fair

way from the facts of Bashir or Gonzalez. And, as we concluded in

Bashir, an officer is not due qualified immunity under these circum-

stances.

In response to Bashir and Gonzalez, Officer Gregory again

points to Judd, where we concluded that a reasonable jury could

find that a resident had given an officer consent to enter his home

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even though the resident did not verbally give the officer permis-

sion. See 941 F.3d at 522–26. But, in Judd, we analyzed the issue of

consent as a fact question after a jury trial and determined only that

the jury was “free to conclude,” based on the evidence, that the

resident had consented to the officer’s entry into his home. Id. at

526. We did not hold that the officer in Judd had a right to enter as

a matter of law. And, as we have explained above, the officer and

resident in Judd, unlike here, communicated verbally and through

non-verbal cues about the officer’s implied request to come into the

house; the officer said he was there to arrest someone in the house

and the homeowner opened the door wide and stepped to the side

in a gesture of invitation. See id. at 525. Even though we held in

Judd that consent need not be verbal and explicit, that precedent

could not have suggested to a reasonable officer that he may enter

a home without a warrant, exigency, or any meaningful communi-

cation with the home’s occupant.

The district court did not err in denying Officer Gregory

qualified immunity against Dukes’s unlawful entry claim at sum-

mary judgment.

C.

We turn to Dukes’s unlawful seizure claim (count IV),

which alleges that after illegally entering Dukes’s home, Officer

Gregory unlawfully arrested or detained Dukes and subjected him

to excessive force. We first map out the relationship between

claims for unlawful entry, unlawful arrest or detention, and exces-

sive force. We then conclude that Dukes’s unlawful seizure claim,

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14 Opinion of the Court 24-10014

in light of his concessions at oral argument, is subsumed into his

claim for unlawful entry.

1.

Fourth Amendment claims for unlawful entry, unlawful ar-

rest or detention, and excessive force are separate claims that focus

on different points in a law enforcement officer’s interaction with

the plaintiff. See, e.g., Fish v. Brown, 838 F.3d 1153, 1164 (11th Cir.

2016) (reviewing “separate claims for an unlawful entry into and

search of his home, and, for unlawful arrest” (emphasis omitted));

Hardigree v. Lofton, 992 F.3d 1216, 1224–32 (11th Cir. 2021) (analyz-

ing unlawful entry, false arrest, and excessive force claims as sepa-

rate claims). An illegal entry claim asserts that an officer lacked a

lawful basis to enter a home. See Fish, 838 F.3d at 1164; Hardigree,

992 F.3d at 1224; Payton, 445 U.S. at 589–90. But, even if an officer

lawfully entered a person’s home, he may still have lacked probable

cause to arrest or reasonable suspicion to detain the person once

inside the home. See Fish, 838 F.3d at 1164–68 (discussing whether

seizures subsequent to a lawful entry were independently lawful);

United States v. Perkins, 348 F.3d 965, 969 (11th Cir. 2003) (discussing

different levels of “Fourth Amendment scrutiny” depending on

which type of seizure was conducted). Similarly, even if a seizure

were legal—that is, even if an officer had the requisite level of sus-

picion to arrest or detain someone—a plaintiff may claim that the

officer “used more force than reasonably necessary to effect” that

seizure. Jackson v. Sauls, 206 F.3d 1156, 1165–66, 1171 (11th Cir.

2000); see Graham v. Connor, 490 U.S. 386, 395 (1989) (“[A]ll claims

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that law enforcement officers have used excessive force . . . in the

course of an arrest, investigatory stop, or other ‘seizure’ of a free

citizen should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard . . . .” (emphasis omitted)). When claims

are raised this way, each claim should proceed on its own inde-

pendent merits. See Richmond v. Badia, 47 F.4th 1172, 1180–81 (11th

Cir. 2022); Jackson, 206 F.3d at 1171.

Sometimes, however, a plaintiff’s Fourth Amendment

claims collapse into each other. That is, the plaintiff’s theory of lia-

bility is not that, even if an officer lawfully entered the home, a

subsequent arrest still lacked probable cause—or that even if the

arrest were supported by probable cause, the force used to effect

that arrest was excessive. Instead, the plaintiff alleges only that an

arrest was unlawful because of a preceding illegal entry, or that the

force used was unjustified because the officer had no basis to make

an arrest at all, or both. See Hardigree, 992 F.3d at 1224 (“When an

officer enters a person’s home without a warrant and without con-

sent, any resulting search or seizure violates the Fourth Amend-

ment unless it was supported by probable cause and exigent cir-

cumstances.”); Bashir, 445 F.3d at 1332 (“[I]f an arresting officer

does not have the right to make an arrest, he does not have the

right to use any degree of force in making that arrest.”).

In these circumstances, one claim subsumes the other: the

illegal entry claim subsumes the claim for unlawful arrest or deten-

tion, which, in turn, may also subsume the claim for excessive

force. See, e.g., Bashir, 445 F.3d at 1327–33 (treating unlawful entry

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16 Opinion of the Court 24-10014

and subsequent in-home arrest as a single “warrantless arrest”

claim—and concluding that the excessive force claim was sub-

sumed within that warrantless arrest claim); Bates v. Harvey, 518

F.3d 1233, 1240 (11th Cir. 2008) (analyzing entry and in-home ar-

rest as one claim, and explaining that “despite the fact that Mrs.

Bates’s claim is for wrongful arrest, much of our analysis concerns

the legality of the officers’ initial entry into her home, because the

effectuation of her arrest was a continuation of the initial search

and seizure” (emphasis omitted)).

When one claim subsumes another, the plaintiff cannot re-

cover damages on both claims. As we explained in Bashir, “the

damages recoverable on an unlawful arrest claim” already “include

damages suffered because of the use of force in effecting the arrest.”

445 F.3d at 1332 (citation modified). The plaintiff may not recover

multiple times for essentially the same claim. That is, he cannot

recover thrice—once for an unlawful entry claim, once for an un-

lawful arrest or detention claim, and once again for an excessive

force claim—if the unlawful entry is the only thing that makes the

seizure unlawful and the force unjustified. See Richmond, 47 F.4th

at 1180–81 (“[A] plaintiff cannot double recover—once for false ar-

rest and again for excessive force—when the absence of probable

cause is the only thing that makes an officer’s use of force unrea-

sonable.”).

2.

At oral argument, Dukes conceded for the first time that his

unlawful seizure claim in count IV of the complaint—both its

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unlawful arrest or detention component and its excessive force

component—is entirely derivative of his claim for unlawful entry.

See Nesbitt v. Candler County, 945 F.3d 1355, 1357 (11th Cir. 2020)

(“A party can be held to concessions and admissions its counsel

made at oral argument.”). According to Dukes, Officer Gregory’s

seizure in his home was unlawful, not because the officer lacked

arguable probable cause or a lower requisite level of suspicion to

justify an arrest or detention, but because he entered Dukes’s home

without a warrant, exigency, or consent. Likewise, Dukes’s argu-

ment as to why Officer Gregory used excessive force is only that

any force used was necessarily excessive because the officer had no

right to be in Dukes’s home at all and thus no right to seize Dukes

in his home at all. Both the unlawful arrest/detention and use-of-

force components of Dukes’s unlawful seizure claim rise and fall

on his unlawful entry claim, which rises and falls on whether the

officer had consent to enter. In short, the entry, subsequent seizure,

and force used, are all part of Dukes’s unlawful entry claim

(count III). See Bashir, 445 F.3d at 1327–32 (entry, arrest, and force

were all subsumed into a single “warrantless arrest” claim).

The district court treated Dukes’s unlawful seizure claim

(count IV) as discrete from his claim of unlawful entry, and treated

the unlawful seizure claim as two separate claims for unlawful ar-

rest/detention and excessive force. It then denied Officer Gregory

qualified immunity, and thus denied summary judgment, on both

the unlawful seizure and excessive force claims. But because these

two claims are entirely derivative of Dukes’s unlawful entry claim

in light of his concessions at oral argument, we vacate the district

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18 Opinion of the Court 24-10014

court’s denial of summary judgment on count IV and remand for

the district court to consider that count—both its unlawful ar-

rest/detention and excessive force components—as subsumed into

Dukes’s unlawful entry claim. The district court may then dismiss

count IV on the ground that it fails as a matter of law. See id. at 1332

(“Bashir does not present a discrete excessive force claim and,

therefore, his excessive force claim fails as a matter of law.”); Wil-

liamson v. Milles, 65 F.3d 155, 158–59 (11th Cir. 1995).

IV.

We AFFIRM IN PART and VACATE AND REMAND IN

PART. We affirm the district court’s denial of Officer Gregory’s

motion for summary judgment as to Dukes’s unlawful entry claim

(count III). We vacate the district court’s denial of Officer Greg-

ory’s motion for summary judgment as to Dukes’s unlawful sei-

zure claim (count IV), and remand with instruction for the court to

consider that count—both its false arrest/detention and excessive

force components—as subsumed within Dukes’s unlawful entry

claim (count III).