Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, April 18, 2006

Bashir: No immunity for warrantless search of home

In Bashir v. Rockdale County, Ga., No. 15-13030 (Apr. 14, 2006), the Court reversed a grant of summary judgment based on qualified immunity to a Georgia Deputy Sheriff.
Bashir, a resident of Rockdale County, Ga., returned to his home one night to find several police cars outside his home. The police had just arrested his wife and two sons on "disorderly conduct" charges. As he spoke with a sergeant, Bashir saw his seven-year-old son crying, unattended in the carport. He picked up his son, and walked inside the house, followed by a deputy sheriff, who had no warrant, and who did not ask permission to enter. Bashir told police "if y’all didn’t do this thing right I am suing the hell out of everybody." Police then rushed into the ome, grabbed Bashir, threw him to the floor, handcuffed him and took him to the jail, where he spent the night.
The Court noted that the Fourth Amendment makes a warrantless arrest in a home unconstitutional unless the the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant. It was undisputed that the Deputy Sheriff had no warrant. The Court concluded that he did not have consent to enter. And the Court rejected the argument that the wife’s arrest twenty minutes earlier created exigent circumstances justifying police entry into the home. The Court further found that these findings were based on clearly established law. The Deputy Sheriff, therefore, was not entitled to qualified immunity to Bashir’s suit under § 1983.
The Court, however, affirmed the dismissal of a separate claim of "excessive force." The Court noted that "excessive force" can be the basis for a separate suit, but found that in this case it was predicated solely on the officer’s lack of authority to make an arrest, and could not go forward.
The Court also affirmed dismissal of state law claims, finding no evidence of the requisite "actual malice" to support such claims.