Case: 24-10271 Document: 71-1 Page: 1 Date Filed: 02/25/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 25, 2025
No. 24-10271 Lyle W. Cayce
____________ Clerk
David Bakutis, as Temporary Administrator for the Estate of
Atatiana Jefferson,
Plaintiff—Appellee,
versus
Aaron Dean,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-665
______________________________
Before Ho, Engelhardt, and Douglas, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Aaron Dean appeals the district court’s judgment denying qualified
immunity. We AFFIRM the district court’s judgment as to the excessive
force claim, but we REVERSE and REMAND on the unreasonable search
claim.
I.
On October 12, 2019, at 2:25 a.m., the Fort Worth Police Department
received a phone call from one of Atatiana Jefferson’s neighbors. The
neighbor told the police that he was concerned that Jefferson’s front door
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was open. The neighbor also explicitly said that Jefferson’s door is usually
closed. This sort of report is known as an “open structure call.”
Dean responded to the call and arrived at Jefferson’s home at 2:28
a.m. 1 Another police officer arrived shortly after Dean at 2:29 a.m. Following
Department protocol, both officers parked around the corner out of view of
the residence, and neither activated their emergency lights or sirens. The
rationale behind such a protocol is to avoid notifying a potential burglar that
the police are on the scene.
After arriving at the home, the officers approached the residence and
looked through the front door’s screen window. Then, they walked around
the house and looked through a screen door on the side of the home. The
officers continued to walk around the house and use their flashlights to look
for signs of a break in. They also checked the cars in the driveway and the
garage, which they found closed. The officers finished the perimeter sweep
by opening a gate on the side of the home and shining Dean’s flashlight
through a window to look for a disturbance.
Around 2:30 a.m., Jefferson became aware that someone was outside
her home. Unbeknownst to the officers, Jefferson was home watching her
nephew. Jefferson and her nephew stayed up late playing video games and
opened the door to let a breeze into the house. When Jefferson realized
someone was outside, she stood up and walked to the window to look outside.
She had no way of knowing it was the police and not an intruder outside of
her home at this early hour of the morning. 2
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1
Dean was a police officer on October 12, 2019. He has since resigned from the
Fort Worth Police Department.
2
Without discovery, it is unclear whether Jefferson had a gun or other weapon in
her hand when she went to the window. The complaint does not allege that Jefferson did,
2
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When Jefferson’s figure appeared at the window, Dean pulled out his
gun and pointed it at the window. Allegedly, Dean’s view of Jefferson was
obstructed by the reflection of his flashlight. When Dean raised his gun he
still did not announce himself as an officer. Instead, he said “Put your hands
up! Show me your hands!” But before finishing this command, he fired a shot
through the window which struck Jefferson.
Then, both officers entered the home and attempted to give CPR to
Jefferson. Jefferson was pronounced dead at 3:05 a.m. The blood loss from
the gunshot wound killed her.
Bakutis, as administer of Jefferson’s estate, sued Dean. 3 Dean moved
to dismiss, asserting qualified immunity. Dean also moved to stay discovery.
The district court stayed discovery for all parties, denied “without
prejudice” the motion to dismiss, and directed Bakutis to file an amended
complaint. Bakutis filed a Second Amended Complaint. Dean again asserted
qualified immunity and moved to dismiss. The district court denied Dean’s
motion. Dean timely appeals.
II.
A district court’s denial of a motion to dismiss on grounds of qualified
immunity is a collateral order that this court can immediately review. See 28
U.S.C. § 1291; see also Carswell v. Camp,
54 F.4th 307, 312 (5th Cir. 2022).
This court reviews the district court’s judgment de novo. See Hyatt v.
Thomas, 843 F.3d 172, 176 (5th Cir. 2016). It is the plaintiff’s burden to
demonstrate that qualified immunity is inappropriate. See Smith v. Heap, 31
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or did not, have a weapon. But the complaint does allege that no weapon was pointed at the
officers.
3
Bakutis also sued the City of Fort Worth, but the City is not a party to this appeal.
3
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F.4th 905, 910 (5th Cir. 2022). Our inquiry is “whether the complaint pleads
facts that, if true, would permit the inference that Defendants are liable under
§ 1983 . . . and would overcome their qualified immunity defense.” Hinojosa
v. Livingston,
807 F.3d 657, 664 (5th Cir. 2015).
III.
Qualified immunity “shields public officials sued in their individual
capacities from liability for civil damages [under § 1983] insofar as their
conduct does not violate clearly established statutory or constitutional rights
of which a reasonable official would have known.” Kokesh v. Curlee, 14 F.4th
382, 391 (5th Cir. 2021) (cleaned up). That inquiry breaks down into two
prongs: (1) whether an official violated a constitutional right and (2) whether
that right was clearly established at the time of the official’s challenged
conduct. See Melton v. Phillips,
875 F.3d 256, 261 (5th Cir. 2017).
Courts have discretion to choose which prong to decide first, and
whether to address the first prong at all. See Pearson v. Callahan, 555 U.S.
223, 242 (2009); see also Trent v. Wade,
776 F.3d 368, 377 (5th Cir. 2015);
Roque v. Harvel,
993 F.3d 325, 332 (5th Cir. 2021). 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.” Richle v. Howards,
566
U.S. 658, 664 (2012) (cleaned up); see Plumhoff v. Rickard,
572 U.S. 765, 778–
79 (2014). The critical question is “whether the state of the law at the time
of an incident provided fair warning to the defendants that their alleged
conduct was unconstitutional.” Singleton v. Cassanova, No. 22-50327,
2024
WL 2891900, at *8 (5th Cir. June 10, 2024) (quoting Roque,
993 F.3d at 334).
A.
When Dean responded to the “open structure call” he was performing a community caretaking function. Community caretaking functions are
“totally divorced from the detection, investigation, or acquisition of evidence
4
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relating to the violation of a criminal statute.” United States v. York, 895 F.2d
1026, 1030 (5th Cir. 1990) (internal quotations omitted). Here, even if the
officers suspected criminal activity such as a burglary, the police were not
searching Jefferson’s property or home to find evidence of a crime committed by its residents. After all, one cannot burglarize, or criminally trespass on,
his own home. Instead, the police were exercising a community caretaking
function—checking to make sure Jefferson and the other residents of the
home were safe. Because Dean was exercising a community caretaking function, it is not clearly established that Dean’s actions were an unreasonable
search.
There is no standalone community caretaking doctrine that exempts
all searches and seizures in the home from the Fourth Amendment. Caniglia
v. Storm, 593 U.S. 194, 196 (2021). Within the broad category of community
caretaking, the functions performed by police vary greatly and the Fourth
Amendment’s reasonableness may not apply the same way to each of the
community caretaking functions.
Id. at 200 (Alito, J., concurring). So each
community caretaking function must be evaluated independently. Neither
the U.S. Supreme Court nor this court has any precedent on “open structure
calls,” so there is no clearly established law that would have given a
reasonable officer in Dean’s position fair notice that his actions in response
to the “open structure call” were unreasonable. 4
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4
In separate writings, the U.S. Supreme Court Justices recently debated whether
a search while performing a community caretaking function should be evaluated under the
same reasonableness standard as a criminal law enforcement search. One Justice argued
that a search occurring in the course of community caretaking is distinct from criminal law
enforcement searches because “warrants are not typically granted for the purpose of checking on a person’s medical condition” or general welfare, and exigent circumstances only
exist “when there is not enough time to get a warrant.” Caniglia, 593 U.S. at 203 (Alito, J.,
concurring). So, “[w]hile there is no overarching ‘community caretaking’ doctrine, it does
not follow that all searches and seizures conducted for non-law-enforcement purposes
5
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Most of the cases Bakutis cites to defeat qualified immunity for the
Fourth Amendment search claim involve police performing traditional law
enforcement functions. Again, traditional law enforcement directed toward
an accused perpetrator is different from community caretaking. For example,
Bakutis cites Florida v. Jardines, where the Supreme Court held that officers
could not enter the curtilage of a home (there, the porch) with a drug sniffing
dog and investigate an unverified tip that marijuana was being grown inside
the home. 569 U.S. 1, 3 (2013). The function of that search was to uncover
criminal activity presumably perpetrated by the home’s residents. Because
this case involves a community caretaking function, Jardines does not
directly govern. 5
The primary non-criminal law enforcement case Bakutis relies on is
Linicomn v. Hill. 902 F.3d 529, 538 (5th Cir. 2018). In that case, a mother who
had lost custody of her children and had a history of making exaggerated
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must be analyzed under precisely the same Fourth Amendment rules developed in criminal
cases. Those rules may or may not be appropriate for use in various non-criminal-law-enforcement contexts.” Id. at 201—02. In contrast, another Justice suggested that community caretaking functions fall within the exigent circumstances structure that exists for
criminal law enforcement searches. “[T]he Court’s exigency precedents, as I read them,
permit warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now.” Id. at 206
(Kavanaugh, J., concurring). Caniglia exemplifies that there is no clearly established law
for what is reasonable under the Fourth Amendment when an officer is performing a community caretaking function generally. And there is no caselaw at all on the community caretaking function of responding to an “open structure call.” The dissent suggests that the
majority opinion is evaluating Dean’s actions using the criminal law enforcement reasonableness framework. This is incorrect. The majority opinion does not take a position on
whether an officer performing a community caretaking function should be judged under the
same reasonableness standard as is applied to a criminal law enforcement search.
5
Likewise, the other binding cases Bakutis cites, including Brock v. United States,
223 F.2d 681, 685 (5th Cir. 1955), and State of Tex. v. Gonzales,
388 F.2d 145, 146-47 (5th
Cir. 1968), involve warrantless searches of the home for criminal law enforcement
purposes.
6
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claims about her children’s welfare, called in a disturbance relating to her
children who were at her ex-husband’s house. Id. at 533–34. The ex-husband
answered the door and stated that his children were asleep and did not need
medical assistance. Id. at 534. Yet, the police entered the home without a
warrant. Id. The panel held that the husband’s constitutional rights were
violated because the police failed to corroborate the ex-wife’s call and “the
officers had the burden of proving the existence of exigency.” Id. at 537. But
ultimately, qualified immunity was preserved because it was not clearly
established whether the use of force was reasonable in response to a call
claiming a child could be physically ill. Id. at 539. 6 Bakutis now alleges that
Linicomn clearly established that Dean needed to corroborate the neighbor’s
phone call before searching the curtilage of the home. 7 But the U.S. Supreme
Court has held that whether a law is clearly established is a fact-specific
inquiry. See Anderson v. Creighton,
483 U.S. 635, 641 (1987).
The facts in Linicomn are different than here in material ways. The
police were not conducting the same community caretaking function in this
case as in Linicomn. There, the wife’s call raised suspicion that the father was
endangering the children, and the police searched the father’s home. Yet
here, a home intruder cannot burglarize his own home. The suspected
criminal is not the owner or resident of the home. So even if the suspected
crime was a burglary or some other criminal trespass, the effective function
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6
Bakutis incorrectly states that qualified immunity was denied.
7
While it is not clearly established that the officers needed to corroborate the open
structure call, unlike in Linicomn, the officers here did corroborate the call when they
arrived on the scene. In Linicomn the police saw no evidence that the father was
endangering his children when they arrived at the home. They did not corroborate the
mother’s phone call. In contrast, when the officers arrived at Dean’s home they
corroborated the neighbor’s phone call by confirming there was an open door and
conducting a perimeter sweep.
7
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of the supposed search by the officers was a welfare check on the home’s
residents—it was not a search of the suspected criminal’s home to uncover
his or her suspected criminal activity. Caniglia emphasizes that all
community caretaking functions cannot be treated the same for qualified
immunity purposes. 8
Bakutis fails to cite any case that governs the facts here and holds that
sufficiently similar conduct violates the Constitution. Yet to prevail, he must
meet his burden to demonstrate that a “right was clearly established . . . in
light of the specific context of the case.” Thompson v. Mercer, 762 F.3d 433,
437 (5th Cir. 2014) (internal quotation marks omitted). The district court got
that standard exactly backwards, reasoning that because the defendant does
not cite binding, precedential caselaw that responding to a suspected burglary
alone allows an officer to enter the curtilage of a home, qualified immunity
was not warranted. Instead, it is the plaintiff, Bakutis’s, burden to produce
binding caselaw establishing that Dean’s perimeter sweep of the home in
response to an “open structure call” was objectively unreasonable under the
Fourth Amendment. Because there is no clearly established precedent that
Dean’s actions were unreasonable, he was not given “fair notice” that his
actions were unreasonable. Brosseau v. Haugen,
543 U.S. 194, 198 (2004); see
Roque,
993 F.3d at 334. Dean is entitled to qualified immunity, and his motion
to dismiss the unreasonable search claim should be granted. We REVERSE
the district court on this point.
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8
The emergency aid cases Bakutis cites are similarly factually distinct. See Brigham
City v. Stuart, 547 U.S. 398, 400 (2006) (holding that when police were at a home
responding to a reported noise complaint and witnessed a violent altercation, they were
justified to enter the home); see also United States v. Troop,
514 F.3d 405, 410 (5th Cir. 2008)
(holding that Border Patrol agents could not enter a home without a warrant to arrest the
owner for conspiracy to transport an alien, absent an exigency).
8
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B.
Excessive force claims are properly analyzed under the Fourth
Amendment’s reasonableness standard. See Graham v. Connor, 490 U.S. 386,
395 (1998). Whenever an officer restrains the freedom of a person to walk
away, he has seized that person. United States v. Brignoni-Ponce,
422 U.S. 873,
878 (1975). There is no question that apprehension by the use of deadly force
is a seizure subject to the Fourth Amendment’s reasonableness requirement.
Tennessee v. Garner,
471 U.S. 1, 7 (1985). It is undisputed that here there was
apprehension by deadly force. 9
A reasonable officer in Dean’s position had “fair notice” that, without
giving a warning, he could not use deadly force against Jefferson. Brosseau,
543 U.S. at 198. “[T]he Supreme Court’s jurisprudence, as well as our own,
ha[s] repeatedly declared the use of deadly force to be objectively reasonable—for Fourth Amendment purposes—only when the officer has probable
cause to believe that the suspect poses an immediate and significant threat of
death or serious physical injury to the officer or others and, if feasible, has
given the suspect prior warning.” Singleton,
2024 WL 2891900, at *13. In
Singleton, this Court denied summary judgment based on qualified immunity
when the officer failed to identify himself as “police” despite clearly established law requiring him to provide a warning before shooting, when feasible. 10 In Garner, the U.S. Supreme Court held that burglary does not automatically justify the use of deadly force.
471 U.S. at 7. In Cole v. Carson, this
court held that a warning needed to be given before the use of deadly force
even when there was a mentally ill individual with a weapon who had made
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9
It appears Dean thought Jefferson was a burglary suspect.
10
Even though Singleton was decided in 2024, it evaluated what was clearly
established law in 2018. Thus, that law applies here where the question is what was clearly
established law in 2019.
9
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violent threats and was moving towards a school. 935 F.3d 444, 451 (5th Cir.
2019), as revised (Aug. 21, 2019). Because it was disputed whether the officers
warned the suspect before using deadly force, this court held that a reasonable jury could conclude that the suspect was not given an opportunity to disarm himself before he was shot, so qualified immunity was not granted on the
excessive force claim at the summary judgment stage. In Baker v. Putnal,
there was chaos on a beach, a report of someone with a shotgun, followed by
gunfire.
75 F.3d 190, 193 (5th Cir. 1996). Members of the public directed the
officer to a vehicle allegedly occupied by the gunman. The officer approached
the truck, the alleged gunman turned towards the officer, and the officer shot
the passenger. It is disputed whether any warning was given and whether the
gunman was holding the gun and pointing it at the officer when the officer
approached the truck. This court did not grant qualified immunity at the
summary judgment stage.
Id. at 200.
Here, Jefferson was watching her nephew and heard someone outside
of her home in the middle of the night. She, unsurprisingly, walked to the
window to see who was there. Nothing suggests that Jefferson knew the police were at her home. Jefferson was not fleeing from the police. There is no
allegation that she was violent or aggressive. And Dean does not assert that
he believed Jefferson posed an immediate and significant threat to him or others. He does not allege that he saw her holding a weapon. 11 Under these circumstances, it is clearly established that Dean was required to announce himself as an officer and issue a warning, prior to employing deadly force. See,
e.g., Garner, 471 U.S. at 11 (“A police officer may not seize an unarmed,
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11
Without discovery, we cannot say that Jefferson was armed. “Whether the
suspect is armed is often the key factor in determining if a threat to an officer justifies the
use of deadly force.” Poole v. City of Shreveport, 13 F.4th 420, 425 (5th Cir. 2021). However,
“[e]ven when a suspect is armed, a warning must be given, when feasible, before the use of
deadly force.”
Id.
10
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nondangerous suspect by shooting him dead.”); Allen v. Hays, 65 F.4th 736,
744–45 (5th Cir. 2023). Based on the current record, every reasonable officer
would have known that it is objectively unreasonable to shoot someone under
these circumstances. At the 12(b)(6) stage we Affirm the district court’s
denial of Dean’s motion to dismiss because of qualified immunity.
This does not foreclose Dean from re-asserting qualified immunity at
the summary judgment stage or even at trial, if facts reveal that deadly force
might have been objectively reasonable and a warning could not be given. See
Flores v. City of Palacios, 381 F.3d 391, 402 (5th Cir. 2004); Singleton,
2024
WL 2891900, at *15–16. There are a number of key facts unknown at this
stage, including whether Jefferson was holding a weapon. A defendant’s
request for qualified immunity should be granted at the earliest possible stage
of litigation, but only if he is entitled to it. See Cole,
935 F.3d at 457. Dean may
ultimately be entitled to prevail against the plaintiff regarding the objective
reasonableness of his conduct, but not on the record we have upon this
12(b)(6) motion.
IV.
We AFFIRM the district court’s judgment on the excessive force
claim, and REVERSE the district court’s judgment on the unreasonable
search claim. We REMAND the case to the district court for further
proceedings consistent with this opinion.
11
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Dana M. Douglas, concurring in part and dissenting in part
I agree that Dean’s actions, as alleged, constituted an unconstitutional
seizure by deadly force. However, the allegations also demonstrate that after
failing to corroborate that an armed burglary was in progress, and in fact
seeing no signs of a forced entry, Dean illegally entered the curtilage of
Jefferson’s home in violation of the Fourth Amendment. Because his
actions, as alleged, are not protected by qualified immunity, I respectfully
dissent in part.
I
“At the motion to dismiss stage, we take the facts, as alleged or
admitted by [Bakutis], as true.” Linicomn v. Hill, 902 F.3d 529, 533 n.1 (5th
Cir. 2018) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 589 (2007)).
On October 12, 2019, Atatiana Jefferson was watching her nephew as
they spent a late night playing video games together. Hoping to cool off the
house, she opened the front door. Because the door was usually closed, and
because it was 2:25 a.m., a neighbor called the Fort Worth Police Department
to report an “open structure.” In response, the Fort Worth Police
Department, which treats “open structure” calls as silent alarm trips (and
therefore burglaries in progress), dispatched two officers to the scene.
Dean was one of the two officers. He parked his patrol car around the
corner and out of view of the residence without activating his lights. Upon
arriving at the home, the officers approached the residence and looked
through the front door’s screen window. Finding no evidence of a
disturbance, they walked around the corner of the home and looked for signs
of a break-in through another screen door. Once again, they found no
evidence of a forced entry; instead, they noticed cars in the driveway and a
closed garage.
12
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At this point, with no evidence of a forced entry, the officers opened
a gate on the side of the home and proceeded down the alleyway. While
walking along the side of the home, Dean shone his flashlight through a
window. Jefferson, hearing a commotion, walked to the window to look
outside. Dean saw Jefferson’s figure in the window and drew his weapon.
Before completing his command that Jefferson put up her hands, and without
announcing his status as an officer, Dean fired his pistol, striking Jefferson.
The officers entered the home and attempted to provide CPR, but Jefferson
was pronounced dead at the scene at approximately 3:05 a.m.
II
For Bakutis to overcome an assertion of qualified immunity, he must
show (1) that there was a violation of a constitutional right and (2) that the
right was clearly established at the time of the official’s challenged conduct.
Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017).
A
I first address the majority’s label of this search as a “community
caretaking” search, before turning to the constitutionality of the search in
general. 1
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1
The majority rightly characterizes this activity as a search. “Whatever quibbles
there may be as to where the curtilage begins and ends, clear it is that standing on a man’s
premises and looking in his bedroom window is a violation of his ‘right to be let alone’ as
guaranteed by the Fourth Amendment.” Brock v. United States, 223 F.2d 681, 685 (5th Cir.
1955) (quoting Olmstead v. United States,
277 U.S. 438, 478 (1928) (Brandeis, J.,
dissenting)); see also California v. Ciraolo,
476 U.S. 207, 213 (1986) (“The claimed area here
was immediately adjacent to a suburban home, surrounded by high double fences. This
close nexus to the home would appear to encompass this small area within the curtilage.”).
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1
The majority labels Bakutis’s actions as a “community caretaking”
search, but that determination is in clear tension with Supreme Court
precedent.
The Supreme Court first recognized “caretaking” searches in Cady v.
Dombrowski, 413 U.S. 433 (1973). There, an off-duty Chicago police officer
was involved in an accident and, upon arrival of officers, was unable to
produce the service revolver he was required to carry at all times.
Id. at 436.
The officers searched the vehicle—which remained in the road—for the gun.
Id. The driver ultimately challenged this search, which linked him to a nearby
homicide, through a petition for writ of habeas corpus.
Id. at 434, 438–39.
The Supreme Court held that the search did not violate the Fourth
Amendment.
Id. at 447–48. Instead, it stated:
The Court’s previous recognition of the distinction between
motor vehicles and dwelling places leads us to conclude that
the type of caretaking “search” conducted here of a vehicle
that was neither in the custody nor on the premises of its
owner, and that had been placed where it was by virtue of
lawful police action, was not unreasonable solely because a
warrant had not been obtained.
Id. It specifically noted that the officers “were simply reacting to the effect
of an accident—one of the recurring practical situations that results from the
operation of motor vehicles and with which local police officers must deal
every day.”
Id. at 446; see also
id. at 447 (noting that the justification for the
search was “concern for the safety of the general public who might be
endangered if an intruder removed a revolver from the trunk of the vehicle”).
The Court extended the doctrine no further.
In Caniglia v. Strom, 593 U.S. 194 (2021), the Court revisited this
doctrine and re-emphasized its limited applicability. There, the First Circuit,
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“[c]iting [the Supreme] Court’s statement in Cady that police officers often
have noncriminal reasons to interact with motorists on ‘public highways,’ . . .
extrapolated a freestanding community-caretaking exception that applies to
both cars and homes.” Id. at 197 (citation omitted) (quoting Cady,
413 U.S.
at 441). But as the Supreme Court pointed out on review, “the location of
[the Cady] search was an impounded vehicle—not a home—‘a constitutional
difference’ that the opinion repeatedly stressed.” 2 Id. at 199 (emphasis
added) (quoting Cady,
413 U.S. at 439). Indeed, as Justice Thomas noted,
“Cady expressly contrasted its treatment of a vehicle already under police
control with a search of a car ‘parked adjacent to the dwelling place of the
owner.’”
Id. (quoting Cady, 413 U.S. at 446–48). Caniglia acknowledged
that while there are non-criminal community caretaking functions, “such as
providing aid to motorists,” Cady merely “recogni[zed] that these tasks
exist” and did not create “an open-ended license to perform them
anywhere.”
Id.
The majority errs by extending the community caretaking doctrine
beyond the bounds of precedent. In Caniglia, the Court’s majority opinion
suggested only that community caretaking includes “providing aid to
motorists.” Id. But the majority avoids this precedent and, in doing so,
reaches a circular conclusion. 3 It states that “even if the officers suspected
_____________________
2
Of course, “the area ‘immediately surrounding and associated with the home’—
what our cases call the curtilage—[is] ‘part of the home itself for Fourth Amendment
purposes.’” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver v. United States,
466
U.S. 170, 180 (1984)).
3
To the extent that the majority argues that the Caniglia concurrences extend the
community caretaking doctrine beyond vehicles, see ante, at 6 n.4, this argument overlooks
that the concurrences contemplated extending the doctrine in exceedingly limited
circumstances. Chief Justice Roberts considered preventing violence in the context of
emergency aid. Id. at 200 (Roberts, C.J., concurring). Justice Alito discussed situations
such as “preventing a person from committing suicide,” the seizure of guns to prevent use
for suicide or harming innocent individuals, and “ascertaining whether a resident is in
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criminal activity such as a burglary, the police were not searching Jefferson’s
property or home to find evidence of a crime committed by its residents”
because a resident cannot burglarize themselves. Ante, at 5. Therefore, the
argument goes, this must be community caretaking.
That the facts did not ultimately reveal a crime does not mean that
Fourth Amendment rights disappear. “[T]he right to protection against
unreasonable search or seizures . . . belongs to the guilty as well as the
innocent.” Brock, 223 F.2d at 684; see also Soldal v. Cook County,
506 U.S.
56, 67 (1992) (“Indeed, [the court of appeals] acknowledged what is evident
from our precedents—that the [Fourth] Amendment’s protection applies in
the civil context as well [as the criminal context].”). The majority’s
bifurcation of the Fourth Amendment between searches that ultimately
reveal criminal activity and those that do not finds no support in our
precedent or in constitutional law.
Even assuming arguendo that this search did fall within the community
caretaking exception, 4 this exception is still subject to a typical Fourth
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urgent need of medical attention and cannot summon help,” such as when an elderly family
member is unreachable for a long period of time. Id. at 201–02 (Alito, J., concurring). And
Justice Kavanaugh’s examples included “prevent[ing] a suicide or . . . conduct[ing] a
welfare check on an older individual who has been out of contact.”
Id. at 205 (Kavanaugh,
J., concurring). It is clear to me that none of these examples squares with the situation at
hand here: an “open structure” call that the police force treats as a burglary-in-progress
call. More importantly, the concurrences do not reshape the Court’s majority opinion,
which expressly declined to extend the doctrine to homes.
Id. at 199 (majority opinion).
4
The facts do not demonstrate a community caretaking search in the first place.
The officers entered the property not with the intent of knocking on the home and ensuring
that everybody was safe but as though the home was potentially being burglarized. A
community caretaking check would not endorse creeping around the side of a home and
drawing a gun. And the mere fact that the call was placed on a non-emergency line does
not mean that the activity was non-criminal, especially given the departmental policy of
how to treat open structure calls.
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Amendment analysis. Indeed, “these ‘caretaking’ duties [do not] create[] a
standalone doctrine that justifies warrantless searches and seizures in the
home.” Caniglia, 593 U.S. at 196. Instead, the Court actively limited the
exception, opining that even if the exception is proper for vehicles, the
Supreme Court has “repeatedly ‘declined to expand the scope of . . .
exceptions to the warrant requirement to permit warrantless entry into the
home.’”
Id. at 199 (alteration in original) (quoting Collins v. Virginia,
584
U.S. 586, 595 (2018)). Yet here the majority does exactly that. Accordingly,
a Fourth Amendment inquiry would still be necessary.
2
Because this “open structure” call—which was treated as a burglary-in-progress—is subject to typical Fourth Amendment protections, the
question is whether the officers unreasonably searched the area. As is well
known, the Fourth Amendment protects against unreasonable searches and
seizures, U.S. Const. amend. IV, and a warrantless search of a home is
presumptively unreasonable, Kentucky v. King, 563 U.S. 452, 459 (2011)
(quoting Brigham City v. Stuart,
547 U.S. 398, 403 (2006)). Of course,
“[t]his right would be of little practical value if the State’s agents could stand
in a home’s porch or side garden.” Jardines,
569 U.S. at 6. It would
significantly diminish the right to retreat “if the police could enter a man’s
property to observe his repose from just outside the front window.”
Id.
Accordingly, the curtilage, or the area “immediately surrounding and
associated with the home,” is considered “part of the home itself for Fourth
Amendment purposes.”
Id. (quoting Oliver,
466 U.S. at 180).
Consider the facts in this case. The officers were told only that the
front door was open; no other fact raised suspicion. They had no warrant.
When they arrived, they “approached the home and looked through the
screen window at the front door.” They provided no notice of their presence.
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Dean then walked to the other side of the home and looked through another
screen door. He walked to the driveway and looked in the cars, where they
found “no signs of a disturbance.” As with the cars, the garage—which was
closed—showed no evidence of a disturbance, and the fence next to the
garage was closed. At this point, Dean, with no evidence of a disturbance,
opened the fence gate, walked along the side of the home, and shined his
flashlight into a window.
Dean acted without a warrant, so his conduct violated the Fourth
Amendment unless an exception to the warrant requirement applied. As
noted above, “clear it is that standing on a man’s premises and looking in his
bedroom window is a violation of his ‘right to be let alone.’” Brock, 223 F.2d
at 685 (quoting Olmstead,
277 U.S. 478). This court has also held that
“peering in the window” can amount to an invasion of the curtilage when the
“trips to the window [are] made at a time when [the officer] lacked probable
cause.” Texas v. Gonzales,
388 F.2d 145, 147 (5th Cir. 1968). This maxim is
strengthened by Jardines, which held that certain activity is permissible
under the Fourth Amendment, such as approaching a home and knocking,
“precisely because that is ‘no more than any private citizen might do.’”
Jardines,
569 U.S. at 8 (quoting King,
563 U.S. at 469). But there must be a
customary invitation to act in that way. Id. at 9. So, much as “spot[ting] that
same visitor exploring the front path with a metal detector, or marching his
bloodhound into the garden before saying hello and asking permission, would
inspire most of us to—well, call the police,” id., so too certainly would an
individual shining a flashlight through a window at 2:30 in the morning.
Indeed, the lack of evidence corroborating a burglary (and some evidence
opposing such a finding) defeats a probable cause finding.
Dean has provided no evidence that an exception to the warrant
requirement applies. Without such a showing, Dean cannot defeat the
presumption that his conduct violates the Fourth Amendment.
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B
The second prong of the qualified immunity analysis requires Bakutis
to demonstrate that the law was “clearly established at the time of the
defendant’s actions.” Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).
The right must be “sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.” Mullenix v. Luna,
577 U.S. 7, 11 (2015) (quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)).
A case need not be “directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.”
Id. at 12
(quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)). And the clearly
established inquiry “must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Id. (quoting Brousseau v. Haugen,
543 U.S. 194, 198 (2004) (per curiam)).
The majority improperly focuses on the lack of precedent surrounding
“open structure” calls. It is true that “open structure” calls are not
commonly found in our caselaw. But that, on its own, does not preclude a
finding that the constitutional violation was clearly established, especially in
light of the police department’s policy to treat such calls as burglaries. See
id. (stating that a case need not be directly on point). Bakutis relies on
Linicomn v. Hill,
902 F.3d 529, for the proposition that an officer violates the
Constitution by entering an individual’s home without sufficient cause.
There, the plaintiff had primary custody of his two minor children after he
and their mother divorced.
Id. at 533. The mother, who suffered from mental
disorders, had previously falsely reported to the police numerous times that
the children were endangered.
Id. On the day of the events at issue in the
case, she called and informed the police that the plaintiff was abusing the
children.
Id. at 534. Officers visited the home but left after receiving no
answer.
Id. Later that night, they returned after the mother again reported a
disturbance about the children.
Id. Upon arriving, they could not gain access
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to the home and ultimately announced through the public address system
that they would enter regardless of the plaintiff’s cooperation. Id. He
answered the door, informed the officers that the children were asleep and
safe, and refused to let anyone in without a warrant, at which point the
officers forced entry.
Id.
A panel of this court found that the officers violated the Constitution
but granted qualified immunity because the violation was not clearly
established. Linicomn, 902 F.3d at 537, 539–40. We noted that “there was a
‘disturbance’ at [the plaintiff]’s address. But the officers had the burden of
proving the existence of the exigency, and failed to corroborate [the mother’s]
call.”
Id. at 537 (emphasis added). The officers failed to “demonstrate that
they inquired into the basis for [the mother’s] assertion that the children
were ‘lethargic and sick,’ or the circumstances surrounding [the plaintiff]’s
possession of the children that day.”
Id. And, importantly, “the officers
arrived at [his] house to find a relatively calm scene outside with no external signs
of struggle indicating the need to prevent violence or restore order.”
Id.
(emphases added); see also Von Derhaar v. Watson,
109 F.4th 817, 828 (5th
Cir. 2024) (noting that an officer’s entry into a home “was objectively
unreasonable after he engaged [the plaintiff] in conversation for a full minute,
and observed no safety threat that he has articulated to the district court or our
court” (emphasis added)).
The majority distinguishes Linicomn, arguing that there, the call
“raised suspicion that the father was endangering the children, and the police
searched the father’s home. Yet here, a home intruder cannot burglarize his
own home.” Ante, at 8 (emphases omitted). But this argument is circular:
when Dean received this call, he believed there was a criminal entry. And the
facts in Linicomn are directly applicable to this case, in which the officers
(1) failed to further corroborate that the front door of the home was open due
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to an active burglary, especially considering (2) the wealth of evidence that
no disturbance had occurred.
Other cases demonstrate that officers cannot, without a warrant, walk
upon curtilage without a license or some exception to the warrant
requirement because curtilage is protected to the same extent as the home.
See, e.g., Jardines, 569 U.S. at 6, 9. And binding precedent spanning upwards
of half a century demonstrates that shining a flashlight into somebody’s home
violates the Fourth Amendment. E.g., Gonzales,
388 F.2d at 147 (“The
district court held that the officer’s conduct in trespassing on the property
and peering in the window amounted to an invasion of the curtilage without
probable cause to arrest or search. . . . The paramount reason for affirmance
is that the conduct . . . constituted an illegal search because his three trips to
the window were made at a time when he lacked probable cause to think that
narcotics were possessed in the home.” (emphasis added)); Brock,
223 F.2d
at 685 (“To begin with, the agents, when they appeared outside Brock’s
bedroom window, were in violation of his rights under the Fourth
Amendment. Whatever quibbles there may be as to where the curtilage
begins and ends, clear it is that standing on a man’s premises and looking in
his bedroom window is a violation of his ‘right to be let alone’ as guaranteed
by the Fourth Amendment.” (quoting Olmstead,
277 U.S. at 478)); see also
Jardines,
569 U.S. at 6 (“[T]he right to retreat would be significantly
diminished if the police could enter a man’s property to observe his repose
from just outside the front window.” (emphasis added)); Collins,
584 U.S. at
593 (explaining that a physical intrusion upon the curtilage—which includes
the “side garden” and “area ‘outside the front window’”—for purpose of
gathering evidence “is presumptively unreasonable absent a warrant”
(quoting Jardines, 569 U.S. at 6–7)).
Granted, these cases may not have involved “open structure” or
“silent alarm” trips for officers to investigate. But the prohibition against
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entering curtilage without an exception to the warrant requirement is well
settled black-letter law. The facts demonstrated here are not the type that
require a more specific case on the clearly established prong. See Mullenix,
577 U.S. at 12. At this stage of the proceedings, accepting all factual
allegations as true, no signs of a disturbance existed after the officers
performed their introductory sweep. 5 And yet, they entered the property and
peered through a window along the side of the home. There is no doubt that
this is unreasonable under our precedent. The facts were sufficiently similar
to demonstrate that marching upon one’s curtilage violates the Constitution,
absent a warrant or exception to the warrant rule.
One final point bears mentioning. Both the majority and Dean argue
that, while it is Bakutis’s burden to allege the clearly established prong, the
district court reversed the burden, instead “reasoning that because the
defendant does not cite binding, precedential caselaw that responding to a
suspected burglary alone allows an officer to enter the curtilage of a home,
that qualified immunity was not warranted.” Ante, at 8–9 (emphasis
omitted). It is true that the district court stated that “Defendant cites no
binding authority suggesting that responding to a suspected-burglary-inprocess call alone allows an officer to enter the home’s curtilage.
Defendant’s reply merely repeats citations to these cases in which other
courts have concluded that burglar alarms are sufficient exigencies to justify
the warrantless search of a residence.” But this statement is not what the
majority or Dean makes it out to be.
A review of the order and its underlying briefing demonstrates that the
district court was referring to Dean’s failure to prove that exigent
_____________________
5
Bakutis does not challenge the constitutionality of the initial sweep.
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circumstances permitted such an entry. 6 Granted, the district court did not
provide much caselaw in support of its finding that a constitutional violation
occurred, rather noting that “[Bakutis] adequately alleges that [Dean]
searched the home’s curtilage without a warrant or justifying exigency.”
The court cited law, some of which was non-binding, supporting the
proposition that a warrantless entry onto curtilage violates the Constitution.
But the mere fact that the district court did not fully show its work, especially
when Bakutis clearly provided binding precedent supporting his position,
should not demand a reversal on the merits. Indeed, the district court was
presented with caselaw in support of Bakutis’s position. And a review of this
caselaw demonstrates that the violation is very much clearly established.
III
Faced with a well-pleaded complaint, the allegations of which we are
compelled to accept as fact, the majority looks past Supreme Court precedent
to expand the community caretaking exception and reframe it with standards
below those applied to criminal defendants. I see no reason to splinter the
Fourth Amendment into two analyses—one in criminal contexts and another
in community caretaking—in contradiction of established law. Because
Dean searched Jefferson’s property without a warrant, and without satisfying
any exception to the warrant requirement, Dean is not entitled to qualified
immunity. I respectfully dissent.
_____________________
6
Before the district court, Bakutis provided various cases supporting his argument
that intruding upon an individual’s curtilage violates the Constitution absent some
exception to the warrant requirement. He highlighted that Dean “failed to raise any
argument which demonstrates exigency and his Motion should be denied on this ground
alone.” But, as the district court recognized, Dean’s citations regarding exigent
circumstances were distinguishable. There was no indication of an ongoing burglary.
23
