Corrigan v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 18, 2016 Decided November 8, 2016

No. 15-7098

MATTHEW CORRIGAN,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-00173)

Elizabeth M. Rademacher, Student Counsel, argued the

cause for appellant. With her on the briefs were Tillman J.

Breckenridge, William R. Cowden, Patricia E. Roberts, and

Jacob M. Derr, Student Counsel.

Carl J. Schifferle, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellees. With him on the brief were Karl A. Racine,

Attorney General, Todd S. Kim, Solicitor General, and Loren L.

AliKhan, Deputy Solicitor General.

Before: ROGERS, BROWN and PILLARD, Circuit Judges.

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Opinion for the Court by Circuit Judge ROGERS.

Dissenting opinion by Circuit Judge BROWN.

ROGERS, Circuit Judge: Following two warrantless

searches of his home by members of the D.C. Metropolitan

Police Department (“MPD”), Matthew Corrigan sued the

District of Columbia and individual MPD officers pursuant to 42

U.S.C. § 1983, for violation of his rights under the Fourth

Amendment to the Constitution. He now appeals the grant of

summary judgment to the defendants, challenging the district

court’s rulings that there was no constitutional violation and that

the officers were entitled to qualified immunity.

Even assuming, without deciding, that the initial

“sweep” of Corrigan’s home by the MPD Emergency Response

Team (“ERT”) was justified under the exigent circumstances

and emergency aid exceptions to the warrant requirement, the

second top-to-bottom search by the Explosive Ordnance

Disposal Unit (“EOD”) after the MPD had been on the scene for

several hours was not. The MPD had already secured the area

and determined that no one else was inside Corrigan’s home and

that there were no dangerous or illegal items in plain sight.

Corrigan had previously surrendered peacefully to MPD

custody. The information the MPD had about Corrigan — a

U.S. Army veteran and reservist with no known criminal record

— failed to provide an objectively reasonable basis for believing

there was an exigent need to break in Corrigan’s home a second

time to search for “hazardous materials,” whose presence was

based on speculative hunches about vaguely described “military

items” in a green duffel bag. And assuming, without deciding,

that the community caretaking exception to the warrant

requirement applies to a home, the scope of the second search

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far exceeded what that exception would allow. In the end, what

the MPD would have the court hold is that Corrigan’s Army

training with improvised explosive devices (“IEDs”), and the

post traumatic stress disorder (“PTSD”) he suffers as a result of

his military service — characteristics shared by countless

veterans who have risked their lives for this country — could

justify an extensive and destructive warrantless search of every

drawer and container in his home. Neither the law nor the

factual record can reasonably be read to support that sweeping

conclusion.

Because it was (and is) clearly established that law

enforcement officers must have an objectively reasonable basis

for believing an exigency justifies a warrantless search of a

home, and because no reasonable officer could have concluded

such a basis existed for the second more intrusive search, the

officers were not entitled to qualified immunity across the board.

Accordingly, we reverse the grant of summary judgment in part

and remand the case for further proceedings. Upon remand, the

district court can address a remaining claim of qualified

immunity based on reasonable reliance on a supervisor’s order

and Corrigan’s claim of municipal liability, which the district

court did not reach.

I.

Matthew Corrigan is an Army Reservist and an Iraq war

veteran who, in February 2010, was also an employee of the

U.S. Department of Labor’s Bureau of Labor Statistics. On the

night of February 2, 2010, suffering from sleep deprivation, he

inadvertently phoned the National Suicide Hotline when dialing

a number he thought to be a Veterans Crisis Line. When he told

the Hotline volunteer that he was a veteran diagnosed with

PTSD, she asked whether he had been drinking or using drugs

and whether he owned guns. Corrigan assured her that he was

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only using his prescribed medication and was not under the

influence of any illicit drugs or alcohol; he admitted that he

owned guns. The volunteer told him to “put [the guns] down,”

and Corrigan responded, “That’s crazy, I don’t have them out.”

Corrigan Dep. 56:2–5. Despite Corrigan’s assurances that his

guns were safely stored, the volunteer repeatedly asked him to

tell her “the guns are down.” Id. 56:2–14. When asked if he

intended to hurt himself or if he intended to “harm others,” he

responded “no” to both questions. Id. 69:6–18. Frustrated,

Corrigan eventually hung up and turned off his phone, took his

prescribed medication, and went to sleep. Id. 56:10–14; 70:6–7.

The Hotline volunteer proceeded to notify the MPD.

At approximately 11:13 p.m., according to the February

9, 2010, Barricade Report from Lieutenant Glover to the MPD

Chief of Police, officers from the MPD Fifth District were

dispatched to Corrigan’s home for “Attempted Suicide.”

Barricade Rpt. 1. Certain undisclosed “information” led them

“to believe the subject was possibly armed with a shotgun.” Id.

Corrigan lived at 2408 North Capitol Street, in Northwest D.C.,

in the basement apartment of a row house that had its own front

and back doors. Upon arrival, the officers thought they detected

a “strong odor” of natural gas and contacted the gas company,

which turned off the gas to the row house. Id.; D.C. Super. Ct.

Tr. 113-14. The officers contacted Lieutenant Glover at home

and he, in turn, gave orders to declare a “barricade situation,”

which meant that the ERT also went to Corrigan’s home. The

MPD Command Information Center advised that Corrigan, a

white male, age 32, had no known criminal record and there

were no outstanding protective orders against him. An ERT

investigator learned that Corrigan was a U.S. Army combat

veteran who had served recently during the Iraq war and owned

a rifle and several handguns. Additionally, he had recently

terminated a romantic relationship and was under psychiatric

care for PTSD and depression. He also had a dog.

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At 2:00 a.m., the ERT assumed tactical control of the

situation. At 2:10 a.m., the MPD began to secure the perimeter

around Corrigan’s home, including evacuating his neighbors.

Barricade Rpt. 2; see D.C. Super. Ct. Tr. 113-14. At 2:30 a.m.,

Lieutenant Glover arrived on the scene and called on the EOD

to respond. According to Lieutenant Glover’s testimony,

Corrigan’s upstairs neighbor, who was his landlady, had told

MPD officers that Corrigan occasionally had overnight guests,

including an ex-girlfriend. See Glover Dep. 16:20–22; 33:1–5.

An officer had reached the ex-girlfriend by cell phone, and she

said Corrigan was a veteran taking prescribed medication for

PTSD, had expertise in IEDs, and trained others in detecting and

mitigating IED incidents. Id. 35:11–37:6. She also recalled

seeing a green duffel bag containing “military items” in

Corrigan’s home that she had been told “not to touch” because

“they were his guns and military stuff.” Id. 36:17–21.

Around 3:00 a.m., MPD negotiators attempted to speak

with Corrigan by dialing his cell phone number, calling his

name over a public address system, and knocking or kicking his

front door. The MPD had no indication, however, that

Corrigan’s failure to answer the door was suspicious. The

officers had been told by his landlady and ex-girlfriend that

Corrigan was likely sleeping, having taken his prescribed

medication; his voicemail message stated “Hi, you’ve reached

Matt, if I’m unavailable, I’m probably asleep.” Indeed, his

landlady, upon being advised that the reason for the police

presence was Corrigan’s attempted suicide, had insisted that was

“outrageous” and repeatedly told the MPD officers that there

was “a big misunderstanding” because she had known Corrigan

for two years and had “never felt more comfortable with a

neighbor in [her] life.” D.C. Super. Ct. Tr. 106, 110. She had

explained to the officers that Corrigan had guns because he was

in the military and that his home had electric, not gas,

appliances.

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Corrigan testified that around 4:00 a.m. he became aware

of someone kicking at his front door, and then his back door,

and was “terrified,” feeling he was being “hunted.” Corrigan

Dep. 70:11–21. He moved from his bedroom to the bathroom

where he felt safest and tried to go back to sleep. Id.

70:21–71:3. When he turned on his cell phone at 4:16 a.m., see

Barricade Rpt. 4, he received a flood of voicemails. He returned

the call of the detective who was one of the MPD negotiators.

Corrigan initially said he was at another address, because he was

scared, but within minutes admitted he was at home. Having

noticed the flood light and all the police officers at the front and

back of his home, he told the negotiator he was coming outside

but needed to put on clothes because of the fallen snow. He

described the clothes he would be wearing and that his cell

phone would be in his left hand when he came out so the police

would not shoot him because they thought he had a gun.

Corrigan Dep. 76:12, 21-22.

Exiting his home within 20 minutes of first speaking to

the negotiator, Corrigan closed and locked his front door so his

dog would not get out and no one could enter his home.

Corrigan Dep. 96:18–19; see also id. 77:6-17. In order to appear

as non-threatening as possible, he knelt on the ground and lay on

his back. MPD officers immediately secured his hands with a

white “zip-tie,” searched his person (on which he had only a

military identification card and his cell phone), and took him to

a police vehicle where he was told he had not committed any

crime and the officers only wanted to talk to him. See id. 97–98.

Eventually, he was taken to a Veterans Hospital where he

voluntarily admitted himself for PTSD symptoms triggered by

the night’s events. First Am. Compl. ¶ 19.

When Corrigan was questioned prior to being removed

from the scene by the MPD, he refused to give his house key to

an MPD officer or to consent to the MPD entering his home.

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The officer who had asked for his key told him: “I don’t have

time to play this constitutional bullshit. We’re going to break

down your door. You’re going to have to pay for a new door.”

Corrigan Dep. 94:15–18. Corrigan responded, “It looks like I’m

paying for a new door, then. I’m not giving you consent to go

into my place.” Id. 94:19–21.

After Corrigan was in MPD custody, Lieutenant Glover

ordered the ERT, led by Sergeant Pope, to break in Corrigan’s

home to search for “any human threats that remained or

victims.” Glover Dep. 10:15–17. Glover testified that he

thought the “sweep” of Corrigan’s home was necessary because

the officer who spoke to Corrigan’s ex-girlfriend had not

reported whether he asked her whereabouts or visually

confirmed her location; Corrigan’s ex-girlfriend or other persons

had stayed overnight in his home, so other persons could have

been present; a gas leak had been reported and Corrigan had

initially “dece[ived]” the police about his location and had told

the Hotline volunteer that he did not intend to harm “others,”

potentially implying that someone else might be inside. Id.

13–14, 40. As a matter of course, Glover explained, if an ERT

unit is called to a scene it goes inside 99.9% of the time, see id.

18:12-14, because “[s]tandard protocol” assumes “if there’s one

[person inside] there’s two, if there’s two there’s three, if there’s

three there’s four, and exponentially on up,” id. 13:18-21.

Upon breaking in Corrigan’s home, the ERT encountered

only Corrigan’s dog; no one was found inside and no dangerous

or illegal items were in plain view. Nonetheless, Lieutenant

Glover thereafter ordered the EOD, led by Officer Leone, to

break in Corrigan’s home again to search for “any hazardous

materials that could remain on the scene and be dangerous to the

public or anybody else in that block or area.” Id. 10:17–22. In

Glover’s view, a thorough top-to-bottom warrantless search was

necessary because the EOD had not cleared Corrigan’s home of

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any hazardous materials or devices. Glover said he believed

such hazards “to be possibly inside” based on Corrigan’s ex-

girlfriend’s reference to a duffel bag containing unspecified

“military items.” Id. 57:16-17. During the second MPD search,

EOD officers cut open every zipped bag, dumped onto the floor

the contents of every box and drawer, broke into locked boxes

under the bed and in the closet, emptied shelves into piles in

each room, and broke into locked boxes containing Corrigan’s

three firearms. See Pl.’s Answers to Interrogs., ¶ 8; First Am.

Compl. ¶ 22. Inside the locked boxes, the EOD found, and

seized, an assault rifle, two handguns, a military smoke grenade,

a military “whistler” device, fireworks, and ammunition.

Corrigan was charged that day, February 3, 2010, with

three counts of possession of an unregistered firearm and seven

counts of unlawful possession of ammunition. Later, when he

was released from the Veterans Hospital into police custody he

was arraigned in the D.C. Superior Court, after spending three

days in the central cell block. He was held at D.C. jail until he

was released on his own recognizance on February 19. Upon

returning home, Corrigan found his home in complete disarray:

the police had left the contents of his bureau drawers and

shelves scattered on the floor, his electric stove had been left on,

and the front door of his home was left unlocked. First Am.

Compl. ¶ 22; Pl.’s Answers to Interrogs., ¶ 8. On April 19,

2012, the D.C. Superior Court judge granted Corrigan’s motion

to suppress the seized firearms and ammunition, finding that the

government could not show facts justifying the warrantless entry

and search of his home. Dist. of Columbia v. Corrigan, No.

2010 DCD 2483, Super. Ct. Tr. 10 (Apr. 19, 2012). The District

government nolle prossed all the charges.

Meanwhile, on February 1, 2012, Corrigan sued the

District of Columbia and individual MPD officers, pursuant to

42 U.S.C. § 1983, alleging that the warrantless entries and

9

searches of his home, and the seizure of his property from his

home, violated the Fourth Amendment. First Am. Compl. ¶ 27.

The district court, following discovery and dismissal of some

officers from the case, initially denied the remaining defendants’

motion for summary judgment, but sua sponte reconsidered and

granted summary judgment. It ruled that no Fourth Amendment

violation had occurred in view of the exigent circumstances, and

that if the community caretaking doctrine applied to a home, it

would also justify the searches. The district court ruled there

had been no violation of a clearly established right, concluding

the officers were entitled to qualified immunity.

II.

Corrigan contends that neither the ERT “sweep” for

injured persons nor the EOD search for “hazardous materials”

was reasonable under the Fourth Amendment because the

officers lacked a reasonable basis for believing that exigent

circumstances necessitated their entry and search. Further, he

contends that the MPD officers should not receive qualified

immunity because it is clearly established that the police may

not enter and search a home without a warrant “when there is no

indication that anyone else is present in the home, or that there

is imminent danger to law enforcement or the public

necessitating immediate entry.” Appellant’s Br. 8. He points

out that the officers knew only that he was a military veteran

suffering from PTSD and allegedly threatening suicide, that he

had been trained to mitigate IEDs, that he possessed a duffel bag

containing “military items,” and that officers had smelled gas

upon first arriving at the row house where Corrigan lived, but

had no reason to believe that he had any intent to harm others or

materials to do so. The district court’s application of the exigent

circumstances, emergency aid, and community caretaking

exceptions to the warrant requirement were thus flawed because

the officers lacked the requisite indication of imminent danger.

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At the very least, any search must be tailored to the exigent

need, and the EOD’s “broad and vigorous search was

unreasonable because it was not [so] tailored.” Id. at 9.

Corrigan also emphasizes that at no time during the five-hour

barricade did the officers make any apparent attempt to obtain

a search warrant.

Our review of the grant of summary judgment is de

novo. See Wesby v. Dist. of Columbia, 765 F.3d 13, 18–19

(D.C. Cir. 2014). Summary judgment is appropriate only “if

the movant shows that there is no genuine dispute as to any

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

of law.” FED. R. CIV. P. 56(a). The latter is reviewed de novo,

but this court in considering the former, “like the district court,

[must] ‘examine the facts in the record and all reasonable

inferences derived therefrom in a light most favorable to the

nonmoving party.’” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir.

2016) (quoting DeGraff v. Dist. of Columbia, 120 F.3d 298,

299–300 (D.C. Cir. 1997)).

“The doctrine of qualified immunity protects police

officers ‘from suit under 42 U.S.C. § 1983 unless they have

violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.’” Fox v. Dist.

of Columbia, 794 F.3d 25, 29 (D.C. Cir. 2015) (quoting City &

Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774

(2015)). To overcome the officers’ claim to qualified immunity,

the court must determine (1) whether the facts in the record

show the officers’ conduct violated a constitutional right, and if

so, (2) whether the constitutional right was clearly established

at the time of the incident. Id. (citing Pearson v. Callahan, 555

U.S. 223, 232 (2009) (summarizing two-step analysis in Saucier

v. Katz, 533 U.S. 194 (2001)). We address both questions to

avoid “leav[ing] the standards of official conduct permanently

in limbo.” Camreta v. Greene, 563 U.S. 692, 706 (2011).

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A.

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

At its core, the Fourth Amendment protects “the right of a man

to retreat into his own home and there be free from unreasonable

governmental intrusion.” Silverman v. United States, 365 U.S.

505, 511 (1961). “It is axiomatic that the ‘physical entry of the

home is the chief evil against which the wording of the Fourth

Amendment is directed.’” Welsh v. Wisconsin, 466 U.S. 740,

748 (1984) (quoting United States v. U.S. Dist. Court, 407 U.S.

297, 313 (1972)). Warrantless searches and seizures inside a

home are “presumptively unreasonable,” Payton v. New York,

445 U.S. 573, 586 (1980), “subject only to a few specifically

established and well-delineated exceptions,” Katz v. United

States, 389 U.S. 347, 357 (1967). Unless there is evidence to

show “‘exigent circumstances’” or another exception sufficient

to justify a warrantless entry, the MPD searches violated

Corrigan’s Fourth Amendment right. See Coolidge v. New

Hampshire, 403 U.S. 443, 477–78 (1971). “[T]he police bear a

heavy burden when attempting to demonstrate an urgent need

that might justify [a] warrantless search[] . . . .” Welsh, 466 U.S.

at 749–50.

Here, the MPD officers rely on three exceptions to the

warrant requirement: exigent circumstances; the emergency aid

doctrine; and the community caretaking doctrine as extended to

12

a home. Because the emergency aid doctrine is essentially a

type of exigent circumstance, see Brigham City v. Stuart, 547

U.S. 398, 403 (2006), we analyze them together.

1. Exigency can justify a warrantless search “when

there is compelling need for official action and no time to secure

a warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978)

(emphases added). Without providing an exclusive list, the

Supreme Court has recognized several exigent circumstances

that could justify a warrantless entry and search, such as the hot

pursuit of a fleeing suspect, United States v. Santana, 427 U.S.

38, 42–43 (1976); the need to prevent the imminent destruction

of evidence, Kentucky v. King, 563 U.S. 452, 460–61 (2011);

and situations, as the MPD claimed here, where there is a “need

to protect or preserve life or avoid serious injury,” Brigham City,

547 U.S. at 403 (internal quotation marks omitted). Whether

exigent circumstances exist to justify a warrantless search “is

judged according to the totality of the circumstances” and on

“what a reasonable, experienced police officer would believe.”

In re Sealed Case, 153 F.3d 759, 766 (D.C. Cir. 1998) (internal

quotation marks omitted).

When relying on an exigent circumstances exception to

the warrant requirement, the officers must have “at least

probable cause to believe that one or more of the . . . factors

justifying entry were present.” Minnesota v. Olson, 495 U.S. 91,

100 (1990). As this court explained in United States v. Dawkins,

17 F.3d 399, 403 (D.C. Cir. 1994), “an exception to the warrant

preference rule . . . does not alter the underlying level of cause

necessary to support entry.” The police must, the Supreme

Court has repeatedly emphasized, have “an objectively

reasonable basis for believing” that the urgent and compelling

need that would justify a warrantless entry actually exists.

Brigham City, 547 U.S. at 406; Michigan v. Fisher, 558 U.S. 45,

47 (2009); Mincey v. Arizona, 437 U.S. 385, 392 (1978); In re

13

Sealed Case, 153 F.3d at 766; United States v. Mason, 966 F.2d

1488, 1492 (D.C. Cir. 1992); United States v. Timberlake, 896

F.2d 592, 597–98 (D.C. Cir. 1990). Additionally, a search

pursuant to the exigent circumstances exception must be “no

broader than necessary,” Mason, 966 F.2d at 1492, and “strictly

circumscribed by the exigencies which justify its initiation,”

Mincey, 437 U.S. at 393 (internal quotation marks omitted).

The Fourth Amendment requires reasonableness based

on particular circumstances in order to meet the officers’s heavy

burden to justify a warrantless search of a home. For instance,

in Fisher, 558 U.S. at 45, 48, the Supreme Court upheld a

warrantless entry into a home where officers responded to a

disturbance complaint at the home and were informed the

defendant was “going crazy” inside, which they confirmed upon

observing that windows were broken and there was fresh blood

on a wrecked car outside, supporting the reasonable belief that

the defendant required aid. Similarly, in Brigham City, 547 U.S.

at 406, the Court upheld officers’ warrantless entry to break up

a fight after they observed a fracas in which punches were

exchanged, causing one man to spit blood. In Mason, 966 F.2d

at 1492–93, this court upheld a warrantless search where officers

responded to a reported shooting, found the victim and, when

they returned to the victim’s home, found the door open and

heard voices within such that it was reasonable to believe

another victim might be in need of assistance or that the shooters

had returned to the home. And this court has noted that

evidence suggesting the presence of a bomb or explosive device

might constitute exigent circumstances. Cf. Dawkins, 17 F.3d

at 406 n.8.

The two separate MPD warrantless searches of

Corrigan’s home are distinguishable by the level of their

intrusiveness, see generally, e.g., Birchfield v. North Dakota,

136 S. Ct. 2160 (2016), and the evidence shows a much more

14

intrusive second search. Even assuming arguendo that the

totality of circumstances could support the ERT’s protective

“sweep” to look for the ex-girlfriend, there was no objectively

reasonable factual basis for the MPD to believe an imminently

dangerous hazard could be present in Corrigan’s home,

particularly after completing the “sweep.”

First, the officers had no reasonable basis for believing

that imminently dangerous “hazardous materials,” like an

explosive device, were in Corrigan’s home. The officers were

presented with a U.S. Army veteran and reservist with no known

prior interaction with the police nor pending legal order against

him. They had no information that he had explosives or other

volatile, hazardous materials in his home that if left unattended

could present a danger to others or to the police. There is no

evidence that the ex-girlfriend ever said she saw or believed that

Corrigan possessed explosives, only that he had a “green duffel

bag” with “military items” — “guns and military stuff” — that

she was told “not to touch.” Glover Dep. 36:17–21. The MPD

learned he had firearms and IED training as a result of his

military service, but had no information that he built IEDs or

kept IED-making materials in his home. And the MPD had

obtained no corroboration that he was likely to harm himself or

others — let alone that he would do so by setting up an

explosive or otherwise hazardous device ready to detonate in his

home where he had left his dog.

Further, having determined as a result of the ERT

“sweep” that no individual or dangerous property was seen

inside Corrigan’s home, the claimed basis for believing exigent

circumstances existed had abated. Most obviously, the MPD

knew no one was inside of Corrigan’s home in need of

assistance or capable of causing harm. His upstairs neighbor

and landlady had told the officers that the reported smell of gas

must have come from the upstairs apartment because Corrigan

15

did not have gas appliances. In any event, the gas to the entire

building had been turned off by the gas company hours earlier.

Officer Leone, leading the EOD search team, acknowledged

there was no smell of gas when entering Corrigan’s home and

knew that gas is not used to make explosive devices. See Leone

Dep. 108:10–11; 61:7–9. By the time of the EOD search,

Corrigan was in MPD custody and neither his statements to

MPD officers nor his actions upon being awakened and

surrendering to the MPD indicated he was an ongoing threat.

Nor had his landlady, who had known him for two years, or his

ex-girlfriend — the only two people the MPD had contacted

who knew him personally — indicated he had acted in erratic or

dangerous ways to threaten others, or threatened to take his own

life, or been physically abusive. In sum, the second warrantless

break in of Corrigan’s home by the EOD was based on nothing

more than “a bare[] possibility,” Evans v. United States, 122

A.3d 876, 882 (D.C. 2015), that he might have explosives that

would ignite, a possibility the evidence shows was based on

runaway speculation.

Second, the officers’ own delay during the hours-long

barricade belies the notion that another immediate break in was

reasonable, much less urgently needed. See Mincey, 437 U.S. at

392; Dawkins, 17 F.3d at 403. “Any warrantless entry based on

exigent circumstances must, of course, be supported by a

genuine exigency.” King, 563 U.S. at 470 (emphasis added).

Not only had the MPD fully secured the area, MPD officers had

been on the scene for five hours. Yet at no point did any officer

attempt to seek a warrant despite ample time and opportunity to

do so. The MPD had time to conduct a further investigation of

Corrigan and, if they concluded there was sufficient evidence,

to apply for a search warrant as the Fourth Amendment

demands. See generally Birchfield, 136 S. Ct. at 2173. To

believe the exigency continued even after the gas was turned off,

Corrigan’s surrender to MPD custody and the ERT’s

16

unproductive “sweep,” the officers would have to speculate,

without factual support, that Corrigan had hidden a device set to

trigger an explosion remotely. This would not have been

“objectively reasonable.” Brigham City, 547 U.S. at 406.

Third, the scope of the “exhaustive and intrusive” search

was unreasonably broad, with EOD officers rifling through

every concealed space in Corrigan’s home and breaking open

closed containers. See Mincey, 437 U.S. at 389. Such a top-to-

bottom search falls far outside the bounds of reasonableness

given what the officers knew at the time and the Supreme

Court’s clear admonition that warrantless searches pursuant to

an exigent circumstances exception be “strictly circumscribed

by the exigencies which justify its initiation.” Id. at 393

(quoting Terry v. Ohio, 392 U.S. 1, 25–26 (1968)); Florida v.

Royer, 460 U.S. 491, 500 (1983); Cupp v. Murphy, 412 U.S.

291, 295 (1973). Even “[u]rgent government interests are not a

license for indiscriminate police behavior.” Maryland v. King,

133 S. Ct. 1958, 1970 (2013). To hold otherwise would

condone the officers’ implicit and patently unreasonable view

that whenever MPD officers break in a veteran’s home in

response to a possibility that an occupant may be a danger, they

may also re-enter to search the entire premises by breaking into

locked containers for potential but unidentified military items.

No precedent, even in the context of potentially explosive

devices, supports the officers tearing open containers and prying

open locked boxes when conducting a warrantless search based

on conjecture that hazardous substances might be present.

While these binding precedents resolve the Fourth

Amendment issue here, we note that the out-of-circuit cases

discussed by the parties in which exigent circumstances justified

warrantless home searches involved starkly different factual

circumstances. For instance, in Mora v. City of Gaithersburg,

519 F.3d 216 (4th Cir. 2008), a healthcare hotline operator

17

reported that Mora had called, said he was suicidal, admitted

having weapons in his home, and stated he could understand

shooting people at work, and that he “might as well die at

work.” Id. at 220. The police confirmed with Mora’s co-worker

that his threats should be taken seriously. Id. Less than fifteen

minutes after receiving the operator’s call, the officers

apprehended and handcuffed Mora while they conducted a

search of his home and vehicle. Id. By contrast, the record here

is silent on the point: Even assuming that Corrigan was in

emotional distress when he mistakenly called the National

Suicide Hotline, there is no evidence that Corrigan had made

any suicidal or aggressive statements or innuendoes to the

Hotline volunteer, and neither his landlady nor ex-girlfriend said

he posed a risk of serious bodily injury or death to himself or

others. Without a reason to believe that Corrigan was prepared

to inflict such harm, there was no exigent circumstance

justifying the EOD search. See Olson, 495 U.S. at 101.

Moreover, unlike here, the officers in Mora conducted a single

search of the home immediately and found and removed guns

that, in the hands of a suicidal Mora, they viewed as posing a

risk of a workplace massacre. Mora, therefore, provides little

support for the officers’ contention that the MPD’s second

search of Corrigan’s home was constitutional, given that the

EOD search occurred after any objective basis for an imminent

threat had dissipated as a result of the ERT “sweep.”

So too, in United States v. Infante, 701 F.3d 386 (1st Cir.

2012), the circumstances were markedly different from what the

officers faced here. There, the firefighters’ entry and search of

the defendant’s home was in response to a call about a “propane

explosion” that had severed the defendant’s finger. Id. at 393.

Upon arrival they saw “significant injuries, including multiple

shrapnel-type wounds on [defendant’s] chest,” and “a blood trail

in a hallway between two doorways,”making it reasonable for

the firefighters to believe an emergency existed due to “the

18

prospect of a secondary explosion resulting from escaping gas.”

Id. Similarly, in United States v. Boettger, 71 F.3d 1410, 1415

(8th Cir. 1995), the police responded to an actual explosion and

investigated further “to ascertain the cause of the explosion and

detect other devices which could explode.” So too in United

States v. Martin, 781 F.2d 671, 674–75 (9th Cir. 1985), the

officer responding to a report of an explosion at the defendant’s

home searched in order “to determine the cause of the explosion

and to ensure that additional explosions or fire would not

occur.” And in United States v. Urban, 710 F.2d 276, 278–79

(6th Cir. 1983), a warrantless search for “potentially explosive

chemicals” was upheld after firefighters responding to a burning

building found large quantities of the chemicals used in the

manufacture of fireworks. By contrast, in United States v.

Yengel, 711 F.3d 392, 394, 398 (4th Cir. 2013), the police were

not justified in searching an evacuated home based solely on the

report of the defendant’s wife that he had a grenade because,

much as in Corrigan’s case, there was nothing to support a

conclusion that the grenade was “live” and might detonate at any

moment.

Supreme Court precedent has revered the sanctity of the

home, condemning warrantless searches absent an actual

exigency based on objective facts. See, e.g., Coolidge, 403 U.S.

at 478. This court, like other circuits, views “the test for exigent

circumstances [a]s whether [the] police had an ‘urgent need’ or

‘an immediate major crisis in the performance of duty affording

neither time nor opportunity to apply to a magistrate [for a search

warrant].’” In re Sealed Case, 153 F.3d at 766 (citations and

internal quotations omitted). Lacking an objective basis for the

belief that vaguely defined “hazardous materials” required

immediate re-entry in Corrigan’s home, the extensive EOD

search far exceeded the bounds of reasonableness.

19

2. In Cady v. Dombrowski, 413 U.S. 433 (1973), where

the community caretaking doctrine originated, a Chicago police

officer was detained at the scene of a single-vehicle accident on

a highway in Wisconsin. The Wisconsin officers had the car

towed to a private garage and searched the car without a warrant

because they believed that Chicago police officers were required

to carry their service revolvers at all times. The Wisconsin

officers were concerned “for the safety of the general public who

might be endangered if an intruder removed a revolver from the

trunk of the vehicle.” Id. at 447. When searching the front seat,

glove compartment, and trunk, they found no weapon but

discovered evidence of a possible homicide. Id. at 437. The

Supreme Court concluded that there was no Fourth Amendment

violation because the officers undertook the search as part of

their “community caretaking function[], totally divorced from

the detection, investigation, or acquisition of evidence relating

to” a crime. Id. at 441.

Because the Supreme Court’s reasoning in Cady focused

on attributes unique to vehicles, some circuits have confined the

community caretaking exception to automobiles. See, e.g., Ray

v. Twp. of Warren, 626 F.3d 170, 177 (3d Cir. 2010); United

States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994); United States

v. Erickson, 991 F.2d 529, 532 (9th Cir. 1993); United States v.

Pichany, 687 F.2d 204, 207–09 (7th Cir. 1982). The Fifth and

Eighth Circuits have extended the exception to warrantless

searches of the home, see United States v. York, 895 F.2d 1026,

1029 (5th Cir. 1990); United States v. Quezada, 448 F.3d 1005,

1007–08 (8th Cir. 2006), but the authorized scope of the searches

has been quite limited. The Sixth Circuit appears to have

equivocated. Compare United States v. Rohrig, 98 F.3d 1506,

1521–25 (6th Cir. 1996), with Goodwin v. City of Painesville,

781 F.3d 314, 331 (6th Cir. 2015) and United States v. Williams,

354 F.3d 497, 508–09 (6th Cir. 2003). Neither this court nor the

D.C. Court of Appeals has held that the community caretaking

20

exception applies to a home. United States v. Proctor, 489 F.3d

1348, 1353 (D.C. Cir. 2007); Hawkins v. United States, 113 A.3d

216, 222 (D.C. 2015).

The instant case does not require the court to decide

whether the community caretaking doctrine applies to a home

because even assuming it may, the officers point to no authority

as would justify the EOD search. In cases where this doctrine

justified a warrantless search of a home, the police officers were

presented with circumstances requiring immediate action if they

were to fulfill their caretaking function, and the ensuing searches

were characterized by brevity and circumspection. See generally

Quezada, 448 F.3d at 1006; Rohrig, 98 F.3d at 1521–25; York,

895 F.2d at 1028–30. Here, the MPD had been on the scene for

five hours and fully secured the area prior to the EOD entry and

search, and Corrigan was in MPD custody after surrendering

peacefully. There was ample time and opportunity for the MPD

to investigate further and, as appropriate, to seek a search

warrant. Yet, instead of doing so, the officers conducted another,

more invasive search of Corrigan’s home.

Although Lieutenant Glover testified that the MPD

officers were not concerned with arresting anyone at the time,

see Glover Dep. 101:4, the purpose of the EOD search cannot be

characterized as altogether divorced from “the detection,

investigation, or acquisition of evidence relating to” a crime,

Cady, 413 U.S. at 441. Based on their own statements, the

officers acted not solely to ensure public safety as community

caretakers, but to investigate whether Corrigan had left explosive

or hazardous materials set to explode — activity that would

have been criminal. Had the officers found what they claim they

sought — hazardous materials set to explode — such would not

be any less evidence of a crime just because it might also require

a public-safety response. See In re Sealed Case, 153 F.3d at 766.

Of course, if the officers had an objectively reasonable basis to

21

think explosives were in Corrigan’s home, that could have

presented an exigent circumstance for re-entry, not an occasion

to invoke the community caretaking exception.

Consequently, upon viewing the evidence in the light

most favorable to Corrigan as the non-movant, Robinson, 818

F.3d at 8, we conclude that the officers fail to demonstrate that

the extensive EOD search of Corrigan’s home was justified by

any plausible exigency. And assuming, without deciding, that

the community caretaking doctrine applies to a home, the

officers lacked probable cause to believe that there was a risk to

the community demanding the kind of swift, warrantless

response that doctrine would authorize. We therefore hold that

the EOD search violated Corrigan’s rights under the Fourth

Amendment.

B.

The Supreme Court has distinguished between the

reasonableness inquiries for Fourth Amendment and qualified

immunity purposes. See Anderson v. Creighton, 483 U.S. 635,

643 (1987). Public officials sued in their individual capacities

are entitled to qualified immunity so long as their actions were

objectively reasonable under the law “clearly established” at the

time. Sheehan, 135 S. Ct. at 1774. The law is clearly established

if “[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson, 483 U.S. at 640. This “do[es] not

require a case directly on point, [so long as] existing precedent

. . . [has]” placed the statutory or constitutional question beyond

debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011). In

assessing a claim of qualified immunity, the facts must be taken

“in the light most favorable to the party asserting the injury.”

Saucier, 533 U.S. at 201.

22

For the brief and limited warrantless ERT “sweep” of

Corrigan’s home, the officers had a sufficiently reasonable basis

for believing there was probable cause to look for a potentially

injured and incapacitated person as to entitle them to qualified

immunity. Lieutenant Glover had been informed that Corrigan

had a girlfriend with whom he had a falling-out and that her

whereabouts were unknown at the time Corrigan exited his

home. Corrigan had initially misled the officers about his

location and delayed exiting his home after answering their

phone calls. Glover had also been informed that Corrigan had

said that he did not intend to harm “anyone else,” which might

imply he had harmed someone but intended no further harm to

others. Glover Dep. 14:10–12. This information is ambiguous

and the MPD officers failed to take obvious steps to clarify it.

No information placed the ex-girlfriend at Corrigan’s home that

night, and when speaking with her by phone the officers never

asked where she was and whether she was safe, much less

attempted to confirm her location. They also did not ask

Corrigan about the putative “anybody else” statement. Although

a close question, the information known to Glover suggested that

a reasonable officer on the scene could have believed that there

was probable cause to order a brief “sweep” to check whether the

ex-girlfriend was injured and remained incapacitated inside

Corrigan’s home. See Sheehan, 135 S. Ct. at 1777; Ashcroft, 563

U.S. at 743. Consistent with that belief, the ERT “sweep” was

limited to spaces large enough to contain an individual, Pope

Dep. 22–23:12, and thus was not more intrusive than necessary

to address the claimed exigency.

By contrast, based on the facts known to the officers at

the time, no reasonable officer could have believed that an

exigency continued to exist as would justify a second warrantless

break in of Corrigan’s home to search for explosives. The

evidence shows only that the MPD officers were presented with

a potentially suicidal military veteran who possessed “military

23

items” and had IED training, but no information about actual or

reported threats by him to others, much less that he had IED

materials at home or would commit suicide in a manner that

threatened others. Cf. Mora, 519 F.3d at 226. To reasonably

conclude a second break in of Corrigan’s home was necessary to

resolve an imminently dangerous situation, the officers would

have had to engage in conjecture that Corrigan, in his suicidal

state, had intentionally set and hidden an explosive device in his

home, or that he possessed an explosive device that he stored so

negligently as to pose an imminent threat. To overcome the

inferential chasm between the circumstances presented to the

officers and the explosive consequences that the officers might

have feared, the officers engaged in raw speculation unsupported

by either precedent or the information they had. Based on that

speculation, the EOD conducted “an exhaustive and intrusive

search,” Mincey, 437 U.S. at 389, that went far beyond a tailored

search for explosives as to which the MPD had zero information.

The unfocused nature of the EOD search underscores its

patent unreasonableness, both in terms of its scope and the lack

of a reasonable basis for it. The most specific information

relating to the posited explosives or “hazardous materials” that

the MPD officers possessed was the ex-girlfriend’s statement

that Corrigan had a green duffel bag containing “military items.”

The initial protective “sweep” by the ERT revealed no sign of

the green bag. See Barricade Rpt. 5. Yet rather than tailoring

the EOD’s search to that duffel bag, Officer Leone testified that

the EOD was searching for “[h]azardous materials, anything that

can be from an IED, which is an improvised explosive device,

hand grenades, any kind of explosive materials,” or

“[c]omponents that make a bomb, explosive material, whether it

be C4, black powder, TNT, wires, any kind of mechanical

switches that can be used to create an improvised device.”

Leone Dep. 22:8–12; 23:7–10. Clearly established law

foreclosed the broad and invasive search that was executed.

24

And even assuming, without deciding, that the

community caretaking doctrine could justify the warrantless

search of a home, it cannot shield the officers from liability. It

is clearly established that this doctrine encompasses only police

searches that are occasioned by, and strictly circumscribed by,

the need to perform caretaking functions “totally divorced from

the detection, investigation, or acquisition of evidence related to”

a crime. Cady, 413 U.S. at 441. That is, the police must be

lawfully inside a home for a reason unrelated to ferreting out

crime. For example, in Rohrig, 98 F.3d at 1509, the Sixth

Circuit held that the community caretaking doctrine justified the

police’s entry and discovery of marijuana plants in plain view

where the officers had entered the defendant’s home to respond

to a noise complaint after they received no answer to their

“knock[ing] and holler[ing].” In Quezada, 448 F.3d at 1006, the

Eighth Circuit held the doctrine applied where a police officer

entered a home after receiving no response to their knocks on the

front door although lights were on in the house and the officer

could hear the audio of a television set. In York, 895 F.2d at

1029–30, the Fifth Circuit held the doctrine applied where the

police crossed the threshold of a home to wait while guests

retrieved their belongings after being threatened by the home

owner. Here, the MPD broke in Corrigan’s home a second time

looking for unspecified “hazardous materials” on the basis of

speculative hunches drawn from the ex-girlfriend’s statement

about unidentified “military items” in a duffel bag. No

reasonable officer could understand the EOD’s warrantless

search that occurred to be the sort of “minor government

interference” that Cady condoned. See Hawkins, 113 A.3d at

222 (emphasis added).

Finally, the wide berth for reasonableness that the

Supreme Court has accorded officers involved circumstances in

which they must make split second judgments. See, e.g.,

Sheehan, 135 S. Ct. 1765; Stanton v. Sims, 134 S. Ct. 3 (2013);

25

Brosseau v. Haugen, 543 U.S. 194 (2004). The Court

acknowledged that “[t]he Fourth Amendment standard is

reasonableness, and it is reasonable for police to move quickly

if delay ‘would gravely endanger their lives or the lives of

others.’” Sheehan, 135 S. Ct. at 1775 (quoting Warden, Md.

Penitentiary v. Hayden, 387 U.S. 294, 298–99 (1967)). In

Corrigan’s case, the MPD had more than five hours, between the

Fifth District’s officers’ arrival on the scene and the MPD’s first

contact with Corrigan himself, to gather information about a

possible threat and apply for a warrant upon probable cause.

Yet without any information Corrigan had or was likely to have

explosives in his basement apartment home in a row house where

he often had overnight guests, the MPD ignored the facts they

did know. The more intrusive EOD search was conducted after

the ERT “sweep” revealed no injury to others or suspicious items

in plain view. Corrigan had peacefully submitted to MPD

custody. As such, this was not a case in which officers had to

make a split-second decision that, judged with the benefit of

hindsight, is revealed to be mistaken. Heien v. North Carolina,

135 S. Ct. 530, 536 (2014). Rather, this is a case in which

officers disregarded the long-established “basic principle of

Fourth Amendment law that searches and seizures inside a home

without a warrant are presumptively unreasonable.” Payton, 445

U.S. at 586 (internal quotation marks omitted). They thereby

contravened established law clearly putting them on fair notice

that warrantless searches of a home based on an exception to the

warrant requirement must be supported by a reasonable belief

based on objective facts and narrowly circumscribed to the

specific exigency claimed.

Our dissenting colleague parts company with our analysis

only as to qualified immunity. As to that issue she acknowledges

that “there can be ‘an obvious case’ where a more generalized

test of a Fourth Amendment violation ‘clearly establish[es]’ the

answer, even without a body of relevant case law” articulated at

26

a high level of specificity. Dis. Op. 7 (quoting Brosseau, 543

U.S. at 199). This is that “obvious case.” A few clear

propositions, all well established at the time of the search, admit

of no relevant legal uncertainty in the context the EOD faced:

The Fourth Amendment prohibits warrantless searches of a

home, see Payton, 445 U.S. at 586, unless an exception to the

warrant requirement applies, see Welsh, 466 U.S. at 749; the

exigent circumstances exception requires “genuine exigency,”

King, 563 U.S. at 470; and the community caretaking exception,

which no binding precedent has applied to the search of a home,

is, in any event, limited to police functions that are “totally

divorced” from criminal investigation, Cady, 413 U.S. at 441.

As general as these propositions may be, their application here

is straightforward, implicating no “hazy border” between

acceptable and unacceptable conduct by trained law enforcement

officers. Based on what they knew at the time, including what

they learned during the initial “sweep” of Corrigan’s home, the

MPD officers lacked any reason to believe that Corrigan posed

an exigent risk of harm to anyone. The officers’ own conduct

underscored the lack of exigency, waiting hours before they

conducted the EOD search. Indeed, the dissent acknowledges

that the circumstances the MPD officers faced at Corrigan’s

home, in contrast to those in which other courts have found

exigency, “favored de-escalation.” Dis. Op. 12.

Nevertheless, the dissent would ignore what the MPD’s

on-the-scene investigation revealed and afford qualified

immunity based on facts as they existed when MPD officers first

arrived, five hours earlier. See Dis. Op. 12–13. Numerous

witnesses, including Officer Leone who led the EOD search,

confirmed that if there was ever a gas smell, it had dissipated

well before either search. The gas to the row house had been

turned off upon MPD’s arrival, see Barricade Rpt. 1, and no one

reported smelling gas in the hours leading up to the EOD search,

or during the ERT “sweep.” Glover Dep. 38:15-21; Defs.’ Resp.

27

to Pl.’s Statement of Material Facts at 14-15, 49. In other words,

contrary to our colleague’s suggestion, Dis. Op. 13, the MPD

had “quell[ed] the initial concerns about a gas leak” by the time

of the EOD search. In fact, the leader of the EOD search had not

even been told of any concern about gas when he entered

Corrigan’s home. Leone Dep. 60:2-4. Nor was the EOD search

in response to a potential suicide, for by that time Corrigan had

peacefully surrendered and been removed from the scene.

Lieutenant Glover acknowledged his belief, prior to the EOD

search, that there were “guns or bombs or ammo” in Corrigan’s

home, Glover Dep. 45:4-11, and Officer Leone testified that the

EOD search was intended to find “booby traps or explosive

devices,” Leone Dep. 19:1-4. Thus, our colleague’s insistence

that the EOD was “not investigating a crime” strains credulity.

Dis. Op. 13.

Nothing in Mullenix v. Luna, 136 S. Ct. 305, 308 (2015),

where the police were attempting to execute an arrest warrant,

calls our conclusion into doubt. See Dis. Op. 4. The Supreme

Court held there that the officers were entitled to qualified

immunity where they used force against an imminent threat to

public safety posed by a subsequent car chase where the object

of the warrant was intoxicated and had twice threatened to shoot

if the police followed him. 136 S. Ct. at 309, 310. Given the

lack of any exigency in the instant case, Mullenix, like the entire

run of recent cases granting qualified immunity, is relevant only

insofar as it reinforces the familiar, objective immunity standard

that we apply. Id. at 308-09; see, e.g., Plumhoff v. Rickard, 134

S. Ct. 2012, 2023 (2014) (quoting Ashcroft, 563 U.S. at 735).

Although qualified immunity may involve a lenient standard,

Mullenix, 136 S. Ct. at 308, nothing in that case, nor in Mora,

Dis. Op. 14, suggests that an immunity defense will succeed

when officers ignore what they learn as their own investigation

progresses.

28

To the extent Officers Pope and Leone maintain they are

nonetheless entitled to qualified immunity because they

reasonably relied on the directive of their superior, see Elkins v.

Dist. of Columbia, 690 F.3d 554, 568 (D.C. Cir. 2012); Liu v.

Phillips, 234 F.3d 55, 57 (1st Cir. 2000); Bilida v. McCleod, 211

F.3d 166, 175 (1st Cir. 2000), we remand this issue as to Officer

Leone to the district court, where it was raised in supplemental

briefing and contested by Corrigan in a supplemental opposition

to summary judgment, but not reached by the district court. In

view of our conclusion that the officers involved in the initial

ERT “sweep” are entitled to qualified immunity, Pope’s further

basis for immunity has become moot.

III.

Because the MPD’s second search, by the EOD, violated

Corrigan’s Fourth Amendment rights, we remand Corrigan’s

claim of municipal liability against the District of Columbia,

which the district court never reached. Lacking a cause of action

for vicarious liability for its officers’ actions, see Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 691 (1978), Corrigan must prove

that the District of Columbia was responsible for the violation,

see Doe v. Dist. of Columbia, 796 F.3d 96, 105 (D.C. Cir. 2015),

by showing that it had a custom, policy, or practice that caused

the constitutional violation. This is a fact-intensive inquiry that

“the district court should address . . . in the first instance.” Id. at

106.

Accordingly, we reverse the grant of summary judgment

on Corrigan’s Fourth Amendment claim and reverse in part on

the officers’ qualified immunity defenses, and remand the case

for further proceedings.

BROWN, Circuit Judge, dissenting: As Law and Order

reminds us every evening, the police are the ones “who

investigate crime.” Nowadays, though, we demand much

more from them. The series of unfortunate events presented

by Matthew Corrigan’s lawsuit is distressing, and I agree with

the conclusion that the second search of Corrigan’s apartment

violated the Fourth Amendment. Nevertheless, given the

varied role played by police officers, and its effect on the

standard Corrigan must meet to pierce the officers’ qualified

immunity, I respectfully dissent.

I.

The Varied Role of Police & the Virtue of Qualified Immunity

“People could well die in emergencies if police tried to

act with the calm deliberation associated with the judicial

process.” Wayne v. United States, 318 F.2d 205, 212 (D.C.

Cir. 1963) (per Burger, J.). “[B]y design or default, the police

are also expected to reduce the opportunities for the

commission of some crimes . . . , aid individuals who are in

danger of physical harm, assist those who cannot care for

themselves, resolve conflict, create and maintain a feeling of

security in the community, and provide other services on an

emergency basis.” 3 Wayne R. LaFave, SEARCH AND

SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 6.6

(5th ed.).

Maintaining the balance between protecting public safety

and safeguarding individual constitutional rights has always

been an exacting task. This charge is particularly challenging

in our post–9/11 world, where even local police forces are

increasingly confronted by sophisticated, well-armed threats,

and where active-shooter scenarios are now part of routine

training. Viewed in hindsight, Corrigan’s recitation of the

facts shows some poor judgment by the police, but we must

consider what they knew and when they knew it. Had law

2

enforcement’s initial response been less comprehensive, lives

and property might have been lost when an explosion ripped

the neighborhood apart, while the condemnations of law

enforcement’s lack of initiative would still be reverberating.

It is easy to criticize decisions made with less-than-

perfect information in highly tense, rapidly-evolving

situations. This is particularly true when officers are

protecting an individual from potential dangers posed to

himself or others, rather than serving in an investigatory or

crime-fighting function. Accordingly, courts do not consider

police conduct in response to “exigent circumstances” in the

same way they evaluate police conduct in the context of

criminal investigation. See, e.g., Sutterfield v. City of

Milwaukee, 751 F.3d 542, 551 (7th Cir. 2014) (“Sutterfield,

for example, frequently speaks about the lack of a warrant but

has not addressed what type of warrant, if any, would have

been appropriate and available in the circumstances

confronting the police. Her briefs seem to view the case

through the lens of criminal law enforcement when the case

plainly does not fit that model.”).

“A myriad of circumstances could fall within the terms

‘exigent circumstances,’” and many could be ill-founded. See

Wayne, 318 F.2d at 212. “Fires or dead bodies are reported to

police by cranks where no fires or bodies are to be found.

Acting in response to reports of ‘dead bodies,’ the police may

find the ‘bodies’ to be common drunks, diabetics in shock, or

distressed cardiac patients.” Id. This is why the qualified

immunity standard appreciates that “the business of

policemen . . . is to act, not to speculate or meditate on

whether the report is correct.” See id. (emphasis in original).

The qualified immunity analysis requires courts to place

themselves in the shoes of the law enforcement personnel

3

who confront these volatile situations, armed with little

information and burdened with enormous responsibility.

Properly applied, the qualified immunity analysis shows

the officers’ initial actions were not only responsible, but

commendable. When the officers’ actions transgressed the

Fourth Amendment, Corrigan’s rights were protected by the

district court granting his motion to suppress and entering a

nolle prosequi on all charges against him. Now, when

Corrigan seeks half-a-million dollars in a §1983 lawsuit, a

different issue is in play: whether controlling law was

“sufficiently clear that every reasonable official would have

understood that what [t]he[y] [did] violate[d]” Corrigan’s

Fourth Amendment rights. See, e.g., Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011) (emphasis added). The court concludes

it was, but I am at a loss to understand how this holding can

be squared with the simple fact that neither the Supreme

Court’s precedent, nor ours, nor a robust consensus of our

sister circuits clearly answered the legal questions faced by

the officers in this case.

There is much on which the majority and I agree. Under

the circumstances of this case, the first search was

permissible; the second search was not; and the information

the police garnered from the first search and further

investigation changed the calculus. However, on the question

of how these issues impact the scope of qualified immunity,

we part company.

First, by imposing an artificially high burden on police

conduct in exigent circumstances, the court conflates the

“probable cause” normally required to search a person’s home

and the “objectively reasonable basis” used to evaluate

intrusions based on exigent circumstances. Compare Op. 12,

21–22 with Brigham City, Utah v. Stewart, 547 U.S. 398, 402,

4

407 (2006) (reversing the Utah Supreme Court’s conclusion

that probable cause and an inquiry into objective

reasonableness were required to assess the justification of

warrantless entry on the ground of exigent circumstances,

relying solely on an analysis of objective reasonableness) and

United States v. Porter, 594 F.3d 1251, 1258 (10th Cir. 2010)

(“[T]he standard is more lenient than the probable cause

standard”) and United States v. Snipe, 515 F.3d 947, 952–53

(9th Cir. 2008). This conflation signals the majority opinion’s

fundamental flaw: grafting general Fourth Amendment

standards from the criminal investigation context on to the

exigency context.

Related to this first problem is the second—and more

significant—issue with today’s opinion: The metric for

measuring what law is “clearly established” is more protean

than my colleagues concede.

II.

“Clearly Established” Law

A. The Standard

The standard for law to be “clearly established” is quite

demanding. The Supreme Court’s most recent

pronouncement on the issue confirms “[a] clearly established

right is one that is sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right. We do not require a case directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate. Put simply, qualified

immunity protects all but the plainly incompetent or those

who knowingly violate the law.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (per curiam) (emphasis added). Qualified

5

immunity is “a question of law, not one of legal facts.” Elder

v. Holloway, 510 U.S. 510, 516 (1994) (emphasis added).

Indeed, lower courts are not even under any obligation to

address whether a constitutional right has been violated; the

court may proceed directly to whether any such right was

“clearly established” in law at the time. See Pearson v.

Callahan, 555 U.S. 223, 236 (2009). 1

B. The Source

The source of “clearly established” law is quite

constrained as well. Controlling precedent from the Supreme

Court, the applicable state supreme court, or from the

applicable circuit court, constitutes “clearly established”

law—but it is unclear what else, if anything, does. See, e.g.,

Lane v. Franks, 134 S. Ct. 2369, 2382 (2014) (observing that,

if two prior Eleventh Circuit cases were still “controlling,” the

Court “would agree” the law is clearly established. But, “at

best,” there was “only a discrepancy in Eleventh Circuit

precedent, which is insufficient to defeat the defense of

qualified immunity”); Stanton v. Sims, 134 S. Ct. 3, 7 (2013)

(per curiam) (emphasizing, in finding qualified immunity,

that the questioned conduct was “lawful according to the

courts in the jurisdiction where [defendants] acted”); Hope v.

Pelzer, 536 U.S. 730, 741–42 (2002) (citing “binding

Eleventh Circuit precedent,” along with a State Department

corrections regulation and a Justice Department report to hold

Alabama prison officials violated clearly established law).

1

Even so, I agree with the court’s conclusion that the officers did

violate Corrigan’s Fourth Amendment rights during their second,

intrusive search into his apartment. See Pearson, 555 U.S. at 236

(explaining “it is often beneficial” to analyze both issues, even as

there is no requirement to do so).

6

If there is no controlling authority in the plaintiff’s

jurisdiction at the time of the incident, “a robust consensus of

cases of persuasive authority” “is necessary” to show “clearly

established” law. al-Kidd, 563 U.S. at 742 (emphasis added);

see also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)

(requiring a robust consensus “at a minimum,” absent

controlling authority). This makes sense. It is simply not

reasonable to ask police departments around the country to

keep abreast of every circuit court’s latest “clearly

established” pronouncement and parse its application to the

myriad factual permutations officers encounter on a daily

basis. Cf. Wilson v. Layne, 526 U.S. 603, 618 (1999) (“If

judges thus disagree on a constitutional question, it is unfair

to subject police to money damages for picking the losing side

of the controversy.”). Accordingly, the Supreme Court is

circumspect about the use of out-of-circuit cases to compose

“clearly established” law. Since al-Kidd, it is only assumed

for sake of argument that “a right can be ‘clearly established’

by circuit precedent despite disagreement in the courts of

appeals.” See Taylor v. Barkes, 135 S. Ct. 2042, 2045 (2015)

(per curiam); City & Cnty. of San Francisco v. Sheehan, 135

S. Ct. 1765, 1776 (2015); Carroll v. Carman, 135 S. Ct. 348,

350 (2014) (per curiam); Reichle v. Howards, 132 S. Ct.

2088, 2094 (2012). 2

C. The Characterization

Finally, characterizing the appropriate law as “clearly

established” is quite exacting. The Supreme Court has

“repeatedly told courts . . . not to define clearly established

2

Indeed, two circuits go even further—totally excluding persuasive

authority from other jurisdictions when determining what is

“clearly established.” See Pabon v. Wright, 459 F.3d 241, 255 (2d

Cir. 2006); Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955

(11th Cir. 2003).

7

law at a high level of generality. Qualified immunity is no

immunity at all if ‘clearly established’ law can simply be

defined as the right to be free from unreasonable searches and

seizures.” Sheehan, 135 S. Ct. at 1775–76. Rather, the law

purported as “clearly established” must “provide clear notice”

of what the Constitution requires. See, e.g., Lane, 134 S. Ct.

at 2382; see also Sheehan, 135 S. Ct. at 1777 (“No matter

how carefully a reasonable officer read” the applicable circuit

precedents “beforehand, that officer could not know that [the

conduct at issue] would violate the Ninth Circuit’s test”). To

be sure, there can be “an obvious case” where a more

generalized test of a Fourth Amendment violation “‘clearly

establish[es]’ the answer, even without a body of relevant

case law.” Brousseau v. Haugen, 543 U.S. 194, 199 (2001).

But, that circumstance is inapposite when a case is “one in

which the result depends very much on the facts.” See id. at

201. In that latter circumstance, a more “particularized”

inquiry into the applicable law is required. See id. at 200.

There, we ask whether a prior case “squarely governs the case

here,” not whether a prior case puts this one in a “hazy

border” between acceptable and unacceptable conduct, see id.

at 201. Behavior on the border is still behavior protected by

qualified immunity.

III.

The Relevant Law Was Not “Clearly Established” Here

The majority cites no Supreme Court case and no D.C.

Circuit case squarely governing Corrigan’s claim. Indeed, the

majority all but concedes there is no such case when

justifying its review of both the “constitutional violation” and

“clearly established” prongs of the qualified immunity

analysis; doing so “to avoid ‘leav[ing] the standards of

official conduct permanently in limbo.’” Op. 10 (quoting

8

Camreta v. Greene, 562 U.S. 692, 706 (2011)) (alterations in

original). 3 The majority finds “clearly established” law by

reasoning the facts of this exigent circumstances case back to

the general principles of warrantless home searches in the

criminal investigation context. This is inappropriate in

Corrigan’s case, where the officers were not searching for

criminal activity but responding to a potentially-suicidal

suspect with “military items.” See Sutterfield, 751 F.3d at

563–64 (“But a more fundamental question raised by this case

is the relevance of the warrant requirement. Certainly it is

logical to consider the availability of a warrant when the

police have reason to suspect that criminal activity may be

afoot, but what about cases in which the police are not acting

in a law enforcement capacity?”). But even if this was

appropriate, the majority’s analysis rests on “legal facts,” not

law. But see Elder, 510 U.S. at 516 (“Whether an asserted

federal right was clearly established at a particular time . . .

presents a question of law, not one of ‘legal facts.’”). The

facts aid the analysis, but only to the extent they are closely

aligned (or are obviously distinguishable from) controlling

authority or persuasive authority. The “clearly established”

inquiry is its own question, not a rehash of the facts giving

rise to a constitutional-rights violation. Cf. Pearson, 555 U.S.

3

Camreta is illuminating towards the nature of qualified immunity

and the “clearly established” standard. The discussion surrounding

this quotation confirms the “clearly established” standard is akin to

the “first bite rule” in torts. In other words, unless and until

“[c]ourts . . . clarify uncertain questions, . . . address novel claims . .

. [and] give guidance to officials about how to comply with legal

requirements,” qualified immunity is appropriate. See Camreta,

563 U.S. at 706. Accordingly, while I take no issue with the

majority deciding today to define the scope of exigent

circumstances in a warrantless home search during a barricade

situation on a go-forward basis, applying it retroactively is another

matter altogether.

9

at 236. The factual regurgitation is telling, however, because

it confirms Corrigan’s claim is one where the existence of

“clearly established” law “depends very much on the facts of

[this] case.” Brousseau, 543 U.S. at 201. “Clearly

established” law in this context thus depends upon a prior

case “squarely govern[ing]” this one. See id. Since the

majority can point to no clearly analogous case prohibiting

the officers’ conduct, that should end the inquiry.

The closest case cited, Mora v. City of Gaithersburg, 519

F.3d 216 (4th Cir. 2008), is not binding authority, and it

confirms the officers’ conduct fell within the “hazy border”

between protected and unprotected conduct. It cannot,

therefore, constitute a violation of “clearly established” law.

See Brousseau, 543 U.S. at 201. In Mora, the Fourth Circuit

held that officers reasonably conducted a warrantless search

of the subject’s bags, car, home, and effects even though he

was outside the home and already handcuffed at the time. 519

F.3d at 226–27. Exigent circumstances existed in Mora

because Maryland police had received a call from a healthcare

hotline operator who said she had spoken to Mora; he told her

he was suicidal, had weapons in his apartment, could

understand shooting people at work, and he “might as well die

at work.” See id. at 220. Police promptly contacted a co-

worker who confirmed Mora’s threats should be taken

seriously. Id. Eleven minutes after the operator’s call, Mora

was handcuffed and on the ground. Id. Without seeking a

warrant, officers searched his vehicle and luggage, entered

and searched his apartment, and opened two safes and

multiple interior doors. The officers discovered multiple

handguns and rifles, ammunition, and gun accessories. Id.

The Fourth Circuit rejected Mora’s § 1983 suit claiming

the searches violated the Fourth Amendment. The court

emphasized “protecting the physical security of its people is

10

the first job of any government” and the threat of mass

murder “implicates that interest in the most compelling way.”

Id. at 223. Given the issues at stake, the Fourth Circuit

attempted to articulate a “framework for analyzing the

constitutionality of preventive action” that is instructive here.

See id. at 222.

Mora recognized “[p]reventive actions raise somewhat

different constitutional questions than the typical backwards-

looking criminal investigation or immediate police response

to a crime already in motion. When the threat is [as] extreme

and the need to prevent it [is] as great as with potential mass

murder, the constitutional questions take on a special urgency

and a certain novelty.” Id. While “[t]he likelihood or

probability that a crime will come to pass plays a role in other

prevention-oriented cases,” id. at 224, “so do two other

factors,” id.—namely, “how quickly the threatened crime

might take place” and “the gravity of the potential crime.” Id.

“As the likelihood, urgency, and magnitude of a threat

increase, so does the justification for and scope of police

preventive action. In circumstances that suggest a grave

threat and true emergency, law enforcement is entitled to take

whatever preventative action is needed to defuse it.” Id. at

224–25.

Here, as the district court said, the police were faced with

“an admittedly unstable individual who had called a suicide

hotline, admitted to having firearms, lied to investigators

about his whereabouts, and was known to possess unknown

military items.” JA 634. Corrigan’s neighbor had seen him

previously host overnight guests, the police had spoken to

Corrigan’s ex-girlfriend on the phone but lacked a visual

confirmation of her location, and the police smelled gas

coming from his building upon their arrival. The police were

also informed Corrigan had IED training. Like Mora,

11

Corrigan’s intentions on the phone were “ambiguous to be

sure.” See 519 F.3d at 226. But the Fourth Circuit did not

simply say officers had some justification to “rush[]

immediately into Mora’s home and tak[e] him into

custody”—it said the officers had “overwhelming

justification.” See id. (emphasis added). Here, the officers

admittedly had less-than-overwhelming justification for their

initial search, but Corrigan’s phone call and the corroborating

information the officers learned provided ample justification

for their initial search. Moreover, Mora was a case that

implicated the criminal activity of mass murder, bringing that

case closer to the more general Fourth Amendment rules of

criminal investigation than Corrigan’s case, which falls

squarely into the exigency camp. Given the Fourth Circuit’s

analysis, if a sufficiently imminent and grave threat could

justify a comprehensive warrantless search after the suicidal

suspect’s apprehension, an officer in a full-blown barricade

situation could reasonably believe similarly expansive powers

may be exercised lawfully here. Perhaps most importantly,

the majority can cite to no case from the Supreme Court, our

circuit, or “a robust consensus of cases of persuasive

authority” requiring a contrary conclusion. See Plumhoff, 134

S. Ct. at 2023; see also Doe v. District of Columbia, 796 F.3d

96, 105 (D.C. Cir. 2015) (“Given the uncertainty regarding

when exactly an exigency exists and the lack of our own

controlling precedent, the law in question was not ‘clearly

established’ at the time.”). 4

4

As the majority admits, nothing in our existing precedent

determines the community-caretaking doctrine’s contours in a

home intrusion, see Op. 19–21, but the court then “assum[es]

without deciding” it applies here and it nevertheless has “clearly

established” contours, see id. at 20. I fail to see how: (1)

conceding there is no controlling authority; (2) assuming without

deciding there is applicable authority by reading the tea leaves from

“some circuits”; and then (3) concluding that these cases constitute

12

To be sure, the facts here provide some contrast to Mora.

In the initial sweep of Corrigan’s home, police did not find

any dangerous or illegal items in plain view, or incendiary

written materials, or locked doors. Interviews with neighbors

who seem to know him well were reassuring rather than

alarming. His upstairs neighbor explained Corrigan’s

unresponsiveness was probably the result of having taken his

medication; he was likely sleeping. She dismissed the news

that Corrigan was suicidal as “outrageous” and told officers

there must be “a big misunderstanding” because, in two years

of contact with Corrigan, she had “never felt more

comfortable” with a neighbor. Thus, just as facts learned

about Mora gave officers reason to ratchet up preventive

actions, the investigation into Corrigan’s background favored

de-escalation.

Nevertheless, the majority fails to appreciate the three

crucial imports from Mora:

First, the case gives officers a rational basis to conclude

that they may, under the right circumstances, conduct a

warrantless search of a suicidal suspect’s residence even after

the suspect has been apprehended. But see Op. 15. This is

what occurred here, where Lt. Glover sent the EOD into

Corrigan’s apartment to search for any hazardous materials

that could pose a threat to others—though the officers were

a “robust consensus” at the time the officers entered Corrigan’s

apartment places the “constitutional question” over the community-

caretaking doctrine’s contours in the home “beyond debate.” See

Mullenix, 136 S. Ct. at 308; cf. Wilson, 526 U.S. at 617–18

(characterizing a circuit split on the relevant issue as

“undeveloped,” meaning “the officers in this case cannot have been

expected to predict the future course of constitutional law”).

13

uncertain about what they may find and their intuitions were

unfounded.

Second, when deciding to execute subsequent searches in

the exigency context, the officers can “take into account the

nature of the threat that led to their presence at the scene.”

Mora, 519 F.3d at 228 (emphasis added). In other words, the

initial justification for a warrantless search can continue to

play a role in how an officer proceeds when subsequently

“uncovering the threat’s scope.” See id. at 226; see also

Sutterfield, 751 F.3d at 567–68. Just so here, where, as Lt.

Glover said, if the officers left it to Corrigan’s landlady to

return upstairs without quelling the initial concerns about a

gas leak and possible military equipment, the police would be

responsible for the consequences. For this reason, much of

the majority’s hand-wringing about the officers’ failure to

obtain a warrant for the second search is beside the point.

The officers here were responding to an exigent circumstance

involving a suicide suspect with IED training in the middle of

the night; they were not investigating a crime. Cf. United

States v. Hendrix, 595 F.2d 883, 886 (D.C. Cir. 1979)

(“Because of the early hour, it would have taken at least a few

hours to obtain a warrant, during which period appellant, who

had been arrested merely for disorderly conduct, likely would

have been able to secure his release, return home, and conceal

or use the shotgun again.”). A reasonable officer might

conclude that “the mere passage of time without apparent

incident” is insufficient to alleviate the initial concerns giving

rise to the exigency. See Sutterfield, 751 F.3d at 562.

Third, in both Mora’s case and Corrigan’s, the malleable

legal standard to determine the scope of the exigency they

faced (that, in turn, determines the scope of an acceptable

search) was crafted in hindsight—it could not be deemed

“clearly established” at the time the officers took action, yet it

14

must be in order to defeat qualified immunity. At the time—

with no Supreme Court or D.C. Circuit case squarely

governing the emergency situation faced here—a reasonable

officer could read Mora, Sutterfield, and Hendrix and

conclude that the warrantless searches conducted in

Corrigan’s apartment might be within the realm of the

officer’s authority to abate public safety concerns posed by

possession of military equipment by an individual with IED

training. This is so even as the second search was a

“substantial step beyond the standard protective sweep.” See

Sutterfield, 751 F.3d at 577.

Unlike the general principles of Fourth Amendment law

the majority recites from the criminal investigation context,

“courts have not spelled out a definition of ‘exigency’ with

any precision.” See United States v. Dawkins, 17 F.3d 399,

405 (D.C. Cir. 1994); see also Sutterfield, 731 F.3d at 553 n.5

(recognizing “the lack of clarity in judicial articulation and

application” of the exigent circumstance doctrines). But

determining whether the law was “clearly established” is not

an exercise in Monday-morning quarterbacking—law

enforcement officers should not be subject to personal

liability simply because the judiciary has not precisely defined

the rules of the road. See Pitt v. District of Columbia, 491 F.

3d 494, 512 (D.C. Cir. 2007) (“Although [the conduct can

constitute a violation of the Fourth Amendment], the district

court correctly held that the three defendant officers are

entitled to qualified immunity on these claims because this

right was not ‘clearly established’ at the time of the actions at

issue in this case.”) (emphasis added). It is therefore

insufficient to apply, retrospectively, criminal investigation

limitations on police conduct to the exigent circumstances

context simply because these limitations have long existed in

the investigatory context.

15

Ultimately, the court’s analysis rests on the “Fourth

Amendment standard” of reasonableness. See Op. 24–27.

The “inquiry” of “objective reasonableness” as to a Fourth

Amendment violation, however, “is not as forgiving as the

one employed in the distinct context of deciding whether an

officer is entitled to qualified immunity for a constitutional or

statutory violation.” See Heien v. North Carolina, 135 S. Ct.

530, 539 (2014). The fact that the officers violated the Fourth

Amendment in searching Corrigan’s apartment a second time

without a warrant is, for purposes of finding the “particular”

issue faced by the officers answered by “clearly established”

law, a non sequitur. What “every reasonable” official would

have understood to be “clearly established” in case law is not

the same question as what is “objectively reasonable” for

purposes of determining a Fourth Amendment violation. See

Heien, 135 S. Ct. at 539–40; cf. Pearson, 555 U.S. at 236

(holding that lower courts are under no obligation to consider

both the issue of a constitutional-rights violation and the

separate question of whether the right was clearly

established). Moreover, the fact-based analysis of what law

was “clearly established” here—spanning roughly six pages

of the majority’s opinion, see Op. 21–27—precludes the

majority from credibly resting the “clearly established”

question on a “basic principle of Fourth Amendment law,” see

id. at 25. It does not take six pages to explain why law is

“clearly established” unless the case is “one in which the

result depends very much on the facts.” Brousseau, 543 U.S.

at 199, 201. Identifying “some tests [from cases] to guide us

in determining the law in many different kinds of

circumstances” is not the same as articulating “the kind of

clear law (clear answers) that would apply with such obvious

clarity to the circumstances of this case that only an

incompetent officer or one intending to violate the law could

possibly fail to know . . . .” Pace v. Capobianco, 283 F.3d

1275, 1283 (11th Cir. 2002) (emphasis added). But the

16

majority will not—and indeed, cannot—admit this. If the

majority did admit this, it would then have to concede no case

“squarely governed” at the time the officers entered

Corrigan’s apartment.

IV.

We do not need to make “bad law” just because “bad

facts” are often accused of doing so. There is much to regret

about the procedures police continued to pursue here—

especially in light of the many observations and revelations

which objectively decreased the imminence of any dire threat.

Good intentions, however, are no substitute for good reasons.

“Because of the importance of qualified immunity to society

as a whole, the [Supreme] Court often corrects lower courts

when they wrongly subject individual officers to liability.”

Sheehan, 135 S. Ct. at 1774 n.3. Indeed, if this decision were

affirmed by the Supreme Court on the ground that the officers

violated clearly established law, it would mark the first time

in more than a decade that the Supreme Court has ruled in

favor of a § 1983 plaintiff on the question. See Groh v.

Ramirez, 540 U.S. 551, 565 (2004); Hope, 536 U.S. at 745–

46. Yet the Supreme Court’s exacting standard to identify

“clearly established” law does not play even a supporting role

in the court’s analysis, which, at most, strings together

generalized statements and some out-of-circuit cases, affixes

the label “clearly established” onto the newfangled “rule”

drawn from them, and then employs this “rule” to deny

qualified immunity. If we want to join the game of second-

guessing first responders, we will find ourselves at the end of

a long queue. But flouting the clear trend of controlling

authority is both unwarranted and unwise, so I respectfully

dissent.