Clifford CUMMINGS, Jr., Plaintiff-Appellant, v. CITY OF AKRON; Rodney Sherman; and Howard Vaughn, Jr., Defendants-Appellees, 418 F.3d 676

CLAY, J., delivered the opinion of the court, in which NIXON, D. J., joined. SUHRHEINRICH, J. (pp. 688-92), delivered a separate dissenting opinion. OPINION CLAY, Circuit Judge. Plaintiff Clifford Cummings, Jr. appeals from the district court’s grant of

summary judgment to Defendants City of Akron, Rodney Sherman, and Howard Vaughn, Jr., in this civil rights action brought pursuant to 42 U.S.C. § 1983, alleging violations of Cummings’ Fourth Amendment rights to be free from unreasonable seizure and excessive force. For the reasons that follow, we AFFIRM the grant of

summary judgment to the City of Akron, as well as the dismissal of Cummings’ excessive force claim against all Defendants. However, we REVERSE the grant of

summary judgment to Sherman and Vaughn on Cummings’ claims of unreasonable seizure and illegal entry under the Fourth Amendment, and REMAND for further proceedings consistent with this opinion. I. BACKGROUND A. Underlying Facts and State Court Proceedings The following material facts are not in dispute. On March 20, 2001, Defendants Sherman and Vaughn, both Akron police officers, were called to investigate a domestic disturbance call at 1115 Peerless Avenue. The alleged victim informed the officers that the alleged perpetrator, her boyfriend, Carl Bromback, was at 1125 Peerless Avenue, a neighboring house.

Sherman and Vaughn went to 1125, which was the home of Plaintiff Cummings, to investigate. Sherman opened the outside screen door, and knocked on the inside entry door. Cummings came to a window from inside the home, and asked the officers what they wanted; Sherman requested that Cummings come to the front door. Cummings came to the front door and partially opened it, and spoke briefly with the officers. During their conversation, Sherman placed one of his feet inside Cummings’ doorway, while Vaughn stood directly behind him.

Sherman asked Cummings whether Bromback was inside the residence, to which Cummings responded that he was not. Cummings also denied Sherman’s request to come inside the house. While the officers were speaking with Cummings, Sherman detected the odor of marijuana emanating from inside Cummings’ house. After inquiring about Bromback, Sherman asked Cummings “what about the weed?,” and Cummings immediately attempted to close his front door. Sherman’s foot, however, was still inside the doorway, and Cummings was unable to shut the door.

At that point, Sherman and Vaughn both pushed the door open, and entered Cummings’ home. After Sherman and Vaughn gained entry into Cummings’ house, a struggle ensued. The officers attempted to arrest Cummings, but he resisted, running out onto his front porch. During the struggle, Sherman and Vaughn struck Cummings with their fists and batons, and sprayed him with pepper spray. A third officer arrived on the scene, and used a Taser gun on Cummings, Cummings was finally subdued, handcuffed, and taken into police custody. After securing Cummings, the officers re-entered his home and seized marijuana and firearms.

Cummings was charged in the Summit County Court of Common Pleas with two counts of assaulting a police officer, both felonies, as well as resisting arrest, illegal cultivation of marijuana, possession of marijuana, and obstructing official business. Cummings pleaded not guilty to all charges, and filed a motion to suppress evidence. The trial court granted Cummings’ motion to suppress, and the Ohio Court of Appeals affirmed. See State v. Cummings, No. 20609, 2002 WL 57979 (Ohio Ct.App. Jan. 16, 2002).

Before the Ohio Court of Appeals, the State argued that Sherman and Vaughn were justified in entering Cummings’ home either because he consented, or because there were exigent circumstances due to the officers’ hot pursuit of a fleeing felon. Id. at *3-6. The State’s hot pursuit theory rested on the argument that at the point when Cummings shut the door on Sherman’s foot, he committed a felony assault, and the officers were justified in entering Cummings’ house to arrest him. Id. at *5.

The state did not contend at any point in the proceedings “that any exigent circumstances except ‘hot pursuit’ justified the officers’ warrantless entry of Cummings’ home.” Id. at *4, n. 2. The Ohio Court of Appeals rejected both the State’s consent argument and its exigent circumstances due to hot pursuit theory, concluding that the officers’ entry into Cummings’ home was unlawful, and therefore any evidence obtained as a result of that entry was properly suppressed. Id. at *6.

On remand back to the trial court after the Ohio Court of Appeals’ rejection of the State’s suppression arguments, Cummings pleaded no contest to a reduced charge of misdemeanor assault on Officer Vaughn, and all other charges against him were dropped. He was sentenced to thirty days in jail on the assault charge, with credit for time served. B. The Instant Lawsuit and Claims Presented on Appeal Before the trial court accepted his plea and entered judgment on remand, Cummings filed the instant lawsuit in federal district court.

The parties consented to have the suit heard by a magistrate judge, and following discovery, the magistrate granted Defendants’ motion for

summary judgment. Specifically, the magistrate judge concluded that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred all of Cummings’ federal constitutional claims, and further, that Defendants were entitled to qualified immunity on those claims. On appeal, Cummings argues that the magistrate judge erred in rejecting his federal claims. The pleadings below, the magistrate judge’s decision, and the parties’ appellate briefs are less than clear in their treatment of the issues presented for review.

Cummings’ complaint contains a single federal constitutional claim, labeled “Count III — Deprivation of Civil Rights.” The substance of this claim, as it appears in the complaint, is that “By seizing, beating, restraining and/or committing the actions hereinbefore described, Defendants deprived Plaintiff of his liberty interests under the Due Process clause of the Fourteenth Amendment to the United States Constitution and in violation of 42 U.S.C. § 1983.” However, statements made by both Cummings’ counsel and Defendants’ counsel during Cummings’ deposition demonstrate that both sides understood Cummings’ suit to encompass Fourth Amendment claims for “unlawful entry” and “excessive use of force.” (Cummings Dep. at 116, J.A. at 109.) When Defendants moved for

summary judgment, it is clear from the legal memoranda submitted to the district court that they understood that Cummings was suing for the officers’ allegedly illegal seizure of his person, allegedly unlawful entry into his home, and alleged use of excessive force, all violations of the Fourth Amendment. However, the magistrate judge only addressed the seizure of Cummings’ person and the officers’ use of excessive force, concluding that both claims are barred by Heck. The magistrate judge went on to state that: The Court realizes that the defendants seek

summary judgment on whether or not there was an unlawful warrantless entry into Cummings’ home, but this allegation was not raised in the counts recited in the complaint, and this Court sees no need to expand upon issues which were not raised. On appeal, Defendants cite to the magistrate judge’s statement and argue that this Court should not entertain on appeal Cummings’ claim for unlawful entry. We disagree. As an initial matter, the magistrate judge’s decision not to address the claim is irrelevant to the question of whether this Court may address it on appeal.

We apply a “course of the proceedings” test to determine whether defendants in a § 1983 action have received notice of the plaintiffs claims where the complaint is ambiguous. Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (en banc) (holding that failure to explicitly state in complaint whether a defendant is being sued in his or her individual capacity “is not fatal if the course of the proceedings otherwise indicate that the defendant received sufficient notice”).

Here, regardless of the fact that Cummings failed to raise unlawful entry in his complaint, Defendants were clearly on notice of Cummings’ unlawful entry claim; in fact, Defendants moved for

summary judgment on the unlawful entry claim, which was fully briefed below by both parties. See, id. at 774 (“Subsequent filings in a case may rectify deficiencies in the initial pleadings.”); see also Vencor, Inc. v. Standard Life and Accident Ins. Co., 317 F.3d 629, 641, n. 11 (6th Cir.2003) (rejecting defendant’s claim on appeal that plaintiff waived argument by not putting it in complaint, where plaintiff made the argument in its memorandum in opposition to defendant’s motion for

summary judgment). Notwithstanding the magistrate judge’s statements, because Defendants failed to make any objection whatsoever to Cummings’ failure to raise the unlawful entry claim in his complaint, we deem any objection waived for the purposes of this appeal. See Smoot v. United Transp. Union, 246 F.3d 633, 648 (6th Cir.2001) (“Because [defendant] failed to object ... below, under the waiver rule this Court will not consider [defendant’s] claim”); United States v.

Burns, 441 F.2d 544, 545 (9th Cir.1971) (“[F]ailure to object to the sufficiency of the complaint in the district court waives the point on appeal.”). Based on the above, we find Cummings to have preserved essentially three separate constitutional claims for appeal, each of which has its genesis in the Fourth Amendment.

First, Cummings argues that Sherman’s and Vaughn’s entry into his home-both Sherman’s initial foot-in-the door entry, and both officers’ subsequent forced entry-was in violation of the Fourth Amendment, because the officers did not have a warrant or probable cause, and no exigent circumstances supported their entry. Second, Cummings claims that Sherman and Vaughn illegally seized him without probable cause. And third, Cummings asserts that Sherman and Vaughn used excessive force against him. II. DISCUSSION A. Standard of Review We review the district court’s grant of

summary judgment de novo. Moorer v. Baptist Memorial Health Care Sys., 398 F.3d 469, 486 (6th Cir.2005).

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We “must view all the facts and the inferences drawn therefrom in the light most favorable to the nonmoving party,” Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 157 (6th Cir.2004), but we will uphold a grant of

summary judgment “[w]here the record as a whole could not lead a rational trier of fact to find for the non-moving party,” Matsushita Electric Industry Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). B. Heck v. Humphrey The magistrate judge granted

summary judgment in Defendants’ favor based on his finding that “Cummings is clearly confronted with a Heck v. Humphrey dilemma.” Heck bars § 1983 plaintiffs from advancing claims that, if successful, “would necessarily imply the invalidity” of a prior conviction or sentence. Heck, 512 U.S. at 487, 114 S.Ct. 2364. However, if “the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. (emphasis in original).

In the instant case, the magistrate judge concluded that Cummings’ success on any of his federal constitutional claims would necessarily imply the invalidity of his state court misdemeanor assault conviction. We agree with the magistrate judge that success on Cummings’ excessive force claim would necessarily imply the invalidity of his state assault conviction. The struggle between Cummings and the officers gave rise to both Cummings’ assault conviction and the excessive force claim, and the two are inextricably intertwined.

Additionally, Cummings could have raised excessive force as a defense to the assault charge, but instead he chose not to contest the charge. Thus, we hold that Heck bars Cummings’ excessive force claim from moving forward, and we affirm the district court’s grant of

summary judgment to Defendants’ on this claim. However, we disagree with the magistrate judge’s conclusion that Heck bars Cummings’ unreasonable seizure and unlawful entry claims. Under Ohio law, Cummings was barred from raising the illegality of the entry into his home or the unreasonableness of the officers’ initial seizure of his person as defenses to assault. The traditional common law rule allowing individuals to resist illegal arrests has been explicitly disregarded by the Ohio Supreme Court. See City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735, 740 (Ohio 1975).

In Fraley, the court held that “in the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances.” Id.

The court later refined this holding in the context of a Fourth Amendment violation: A warrantless entry ... may quite possibly result in the exclusion of pertinent incriminating evidence observed in such entry, and the showing of unreasonable conduct by a law enforcement officer may well provide a privilege to resist the entry by the occupant. Nevertheless, absent bad faith on the part of a law enforcement officer, an occupant ... cannot obstruct the officer in the discharge of his duty, whether or not the officer’s actions are lawful under the circumstances. State v.

Pembaur, 9 Ohio St.3d 136, 459 N.E.2d 217, 219 (1984). Contrary to the dissent’s claim, Fraley and Pembaur hold that the invalidity or unlawfulness of a warrantless entry is not a defense to the charge that a criminal defendant assaulted a police officer, and that absent excessive force, an arrestee may not use force against an officer. Id. at 219; Fraley, 324 N.E.2d at 740. In Pembaur, the Ohio Supreme Court made clear that the exclusive remedy for an unlawful entry by police officers is the suppression of any incriminating evidence that is uncovered as a result of the illegal entry.

See Pembaur, 459 N.E.2d at 219 (“Although defendant may well successfully challenge the use against him of any evidence obtained by the deputies in their search ... defendant was not privileged to physically impede the deputies.”). The dissent’s citation to City of Middleburg Heights v. Theiss, 28 Ohio App.3d 1, 501 N.E.2d 1226 (1985), is also misplaced.

Theiss notes in dicta that individuals are privileged to refuse entry to police officers; however, the court distinguished between the right to refuse initial entry and a right to assault officers once they have gained entry; the latter is what Cummings pleaded no contest to, and like Fraley and Pembaur, Theiss concludes that unlawful entry is not a defense to assaulting a police officer. 501 N.E.2d at 1229 (“[T]he critical issue to resolve is whether, assuming the entrance was unlawful, the defendants were then privileged to assault police officers after they had gained entrance into the home.

We think not.”) (emphasis in original). Cummings contested the officers’ actions in the course of his criminal prosecution by moving to suppress evidence obtained as a result of the warrantless entry, an argument that, as mentioned, was successful before both the trial court and the court of appeals. Separate and apart from the fact that both the trial and appellate courts found that Sherman and Vaughn violated Cummings’ Fourth Amendment right to be free from unreasonable search and seizure, Cummings’ only defense to the assault charge against him would have been to claim that the officers used excessive force.

Cummings did not make such an argument, instead pleading no contest to assaulting Vaughn. It is for this reason that Heck bars Cummings’ Fourth Amendment excessive force claim from moving forward in the instant lawsuit. However, because Cummings had no other Fourth Amendment defense to the assault charge, a successful suit under § 1983 against both Sherman and Vaughn for entering his home without a warrant and probable cause would not “imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487, 114 S.Ct. 2364.

Additionally, although Ohio law barred Cummings from asserting the illegality of the seizure of his person in the context of the assault charge, Heck is not a bar to Cummings’ assertion of the illegal seizure claim in the instant suit for damages. Cummings’ assault conviction cannot be disturbed whether he was legally or illegally seized; thus, the relevant question becomes whether or not the seizure of Cummings’ person and entry into his home were illegal, and if they were, whether Cummings suffered a compensa-ble injury. See Braxton v. Scott, 905 F.Supp. 455, 458 (N.D.Ohio 1995) (quoted in Shamaeizadeh v.

Cunigan, 182 F.3d 391, 396 (6th Cir.1999)) (“[FJourth amendment claims under § 1983 may be brought without setting aside the conviction only if success would not undermine the conviction and if the plaintiff alleges a compensa-ble injury other than the conviction.”) One other point about Heck should be mentioned. The factual situation in this case is distinguishable from the hypothetical situation discussed in footnote 6 of Heck, in which the Court foreclosed § 1983 lawsuits based upon Fourth Amendment violations where the plaintiff was previously convicted in state court of resisting arrest.

Heck, 512 U.S. at 487, n. 6, 114 S.Ct. 2364. The Court explains that a subsequent suit for damages would not be cognizable because a lawful arrest is an element of the typical offense of resisting arrest, and thus “[i]n order to prevail in this § 1983 action, [the plaintiff] would have to negate an element of the offense of which he has been convicted.” Id. Conversely, Cummings was convicted of assault, not resisting arrest, and the lawfulness of the arrest is not an element of the crime of his conviction. Indeed, as discussed above, the legality of the arrest is irrelevant to Cummings’ crime of conviction.

Thus, footnote 6 of Heck is inapposite to the present case. C. Municipal Liability Before addressing the merits of Cummings’ claims against Sherman and Vaughn, we note that the district court properly dismissed all claims against the City of Akron. “[A] municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Rather, in order to hold a municipality liable, the § 1983 plaintiff must show that he or she was injured as a direct result of the municipality’s official policy or custom. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Gray v. City of Detroit, 399 F.3d 612, 617 (6th Cir.2005). In this case, Cummings has not shown a causal link between a policy or custom of the City of Akron and a violation of his constitutional rights. Thus, the district court properly granted

summary judgment in the City’s favor. D. Qualified Immunity and the Legality of the Officers’ Actions We now turn to the claims against Officers Sherman and Vaughn. Having found that Heck is not a bar to some of Cummings’ claims, the question turns to whether the officers are protected by qualified immunity. Qualified immunity is an affirmative defense that generally shields government officials from suit under § 1983 for their discretionary actions. Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir.2002) (citing Anderson v. Creighton, 483 U.S. 635, 638-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In order to defeat Sherman’s and Vaughn’s assertion of qualified immunity, Cummings must demonstrate that

(1) Sherman and Vaughn deprived him of a constitutionally protected right, and (2) that the right is “so clearly established that a reasonable officer would understand that his or her actions would violate that right.” Id. at 569 (citing Harlow, 457 U.S. at 818, 102 S.Ct. 2727). Thus, “[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiffs allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). 1.

Deprivation of a constitutionally protected right ? is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); cf. Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”) (quotation and citation omitted).

Without a warrant or consent, searches or seizures inside the home are upheld only “under extraordinary circumstances,” because “[t]he freedom from armed intrusions of the home outside the judicial process, without prior approval by a judge or magistrate ... is one of our most basic civil liberties.” United States v. Chambers, 395 F.3d 563, 565, 569 (6th Cir.2005). Sherman and Vaughn had no warrant to arrest Cummings or to search his residence, and Cummings did not consent to the officers’ entry into, or presence in, his home..

Cummings manifested his intent to keep the inside of his home private, first by attempting to talk to the officers through the window, and later by only partially opening the front door during his conversation with the officers and refusing their request to enter the house. Cummings also demonstrated that he wished to end his conversation with the officers when he attempted to close the door, but he was prevented from doing so by the presence of Sherman’s foot in the doorway.

For these reasons, it is clear, as the Ohio Court of Appeals found, that Cummings’ “attempt to close the door constituted a termination of the consensual encounter, and communicated his lack of consent to any further intrusion by the officers.” Cummings, supra, 2002 WL 57979 at *4.

Defendants contend, as did the State in response to Cummings’ motion to suppress, that when Cummings shut the door on Sherman’s foot, the officers had probable cause to believe that Cummings had committed the crime of assault, and any entry into his home to seize him was justified by exigent circumstances under the hot pursuit of a fleeing felon exception to the warrant requirement. See, e.g., United States v. Williams, 354 F.3d 497, 503 (6th Cir.2003) (recognizing “hot pursuit of a fleeing felon” as an exigency exception to the warrant requirement).

We agree with the Ohio Court of Appeals that this argument is without merit. As that court recognized, the key to the hot pursuit exception is “that a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

Typically, hot pursuit involves a situation where a suspect commits a crime, flees and thereby exposes himself to the public, attempts to evade capture by entering a dwelling, and the emergency nature of the situation necessitates immediate police action to apprehend the suspect. See, e.g., Warden v. Hayden, 387 U.S. 294, 298-9, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. Bass, 315 F.3d 561, 564 (6th Cir.2002); see also United States v.

Saari, 272 F.3d 804, 812 (6th Cir.2001) (describing hot pursuit as “immediate or continuous pursuit of the Defendant from the scene of a crime.”) In Santana, the Supreme Court upheld the effectuation of a warrantless arrest of the defendant inside her home, because the police initiated the arrest while she was standing in the open doorway of her house, and she retreated inside before the police could apprehend her.

Integral to the Court’s analysis was a finding that Santana “was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house,” and thus she had no legitimate expectation of privacy at the time the police initiated the arrest. Santana, 427 U.S. at 42, 96 S.Ct. 2406.

In contrast to Warden and its progeny, Cummings did not commit a crime in a public place and attempt to flee into his house; in contrast to Santana, Cummings never fully exposed himself to the public view, given that he only opened the door very slightly, and only at the request of the police. Additionally, unlike the situation in Santana, Sherman and Vaughn did not attempt to arrest Cummings until after he tried to shut the door, at which point he clearly indicated that he did not wish to be exposed to the public.

Furthermore, it is highly questionable whether Cummings’ act of closing the door on Sherman’s foot actually constituted an assault; if there is no underlying felony, the ‘hot pursuit of a fleeing felon’ exception to the warrant requirement is untenable. Ohio’s assault statute states that “[n]o person shall knowingly cause or attempt to cause physical harm to another,” and “[n]o person shall recklessly cause serious physical harm to another.” Ohio Rev. Code § 2903.13(A), (B) (emphasis added).

There is no evidence on the record before us to suggest that Cummings knew Sherman’s foot was in the doorway when he attempted to shut door, and the Ohio Court of Appeals found it “undisputed that, whatever amount of force was applied, Officer Sherman’s foot sustained no injuries as a result of Cummings’ attempt to close the door.” Cummings, 2002 WL 57979 at *1, n. 1. Given Cummings’ lack of exposure to the public view, as well as the very questionable nature of the felony that Defendants allege he committed, the hot pursuit of a fleeing felon exception to the warrant requirement is inapplicable.

Because Sherman’s and Vaughn’s seizure of Cummings’ person and entry into his home were unsupported by a warrant, consent or exigent circumstances based upon the hot pursuit of a fleeing felon, the officers deprived Cummings of his constitutionally protected right to refuse entry into his home, and to be free from an unreasonable seizure of his person. 2. Clearly established nature of the constitutional violation Having found a violation of Cummings’ Fourth Amendment rights, we now turn to whether those rights were clearly established at the time of Cummings’ arrest.

In order to determine whether a constitutional right is clearly established, we “look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits.” Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir.1994). In order for a constitutional right to be clearly established, there need not be a case with the exact same fact pattern, or even “fundamentally similar” or “materially similar” facts; rather, the question is whether the defendants had “fair warning” that their actions were unconstitutional.

Hope, supra, 536 U.S. at 741, 122 S.Ct. 2508; cf. United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (“[GJeneral statements of the law are not inherently incapable of giving fair and clear warning, and in [some] instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.”) (quotation and citation omitted).

In the instant case, one not need go any further than Supreme Court precedent to see that Cummings’ constitutional rights were clearly established. The bedrock Fourth Amendment principles announced in Payton and Welsh demonstrate that the officers’ forced warrantless entry into Cummings’ home was presumptively unreasonable, and the Court’s exigency decisions in Warden and Santana clearly show that Sherman and Vaughn had no objectively reasonable basis for believing that their warrantless entry into Cummings’ home was supported by the exigency of hot pursuit of a fleeing felon.

Therefore, we find that Sherman and Vaughn are not shielded by qualified immunity, and Cummings’ Fourth Amendment claims for the warrantless entry into his home and seizure of his person may go forward. On remand, the trier of fact will need to determine what, if any, injury Cummings suffered as a result of Defendants’ actions, and what, if any, monetary damages Cummings is entitled to as compensation. III. CONCLUSION For the reasons set forth above, we AFFIRM the district court’s grant of

summary judgment in favor of the City of Akron, and the grant of

summary judgment in Defendants’ favor on Cummings’ excessive force claim. However, we REVERSE the grant of

summary judgment in favor of Defendants Sherman and Vaughn on Cummings’ unlawful entry and illegal seizure claims, and REMAND the case to the district court for further proceedings consistent with this opinion. . Contrary to the dissent’s understanding, it was Sherman, and not Vaughn, who placed his foot in Cummings' door.

Cummings pleaded no contest to assaulting Vaughn and Vaughn alone; thus the dissent's out-of-context quotation of our later discussion of whether Cummings' act of shutting the door on Sherman’s foot could have constituted an assault under Ohio law is entirely irrelevant to the assault he actually pleaded no contest to. See note 4, infra. . Cummings also had several state law claims, over which the magistrate judge declined to exercise supplemental jurisdiction, and dismissed without prejudice. . Incidentally, Defendants did not raise Heck in their motion for

summary judgment. We have not explicitly held whether Heck constitutes an affirmative defense, although at least one of our sister circuits has found that defendants may waive Heck arguments by failing to make them before the district court. See Kramer v. Village of North Fond du Lac, 384 F.3d 856, 862 (7th Cir.2004); but see Manthey v. Kessler, 79 Fed.Appx. 153, 153-54 (6th Cir. 2003) (unpublished decision) (affirming without analysis district court’s sua sponte finding that Heck barred the plaintiff’s claims); Gil v. City of New York, 32 Fed.Appx. 615, 616 (2d Cir.2002) (unpublished decision) (same).

In any event, Plaintiff has not argued on appeal that Heck constitutes an affirmative defense; thus it is unnecessary for this Court to make any such finding. . Defendants have not claimed any basis for exigent circumstances other than hot pursuit of a fleeing felon, such as imminent destruction of evidence. Because qualified immunity must be asserted by the defendant official, it was incumbent upon Defendants to raise a plausible legal basis for the asserted legality of their seizure of Cummings’ home and person.

In addition, as we stated in note 1, supra, our discussion of the officers’ hot pursuit theory, and their claim that Cummings assaulted Sherman by shutting the door on his foot, should not be confused with the fact that Cummings pleaded no contest to assaulting Vaughn alone. Therefore, the dissent’s quotation of the above paragraph in the context of discussing Heck is misplaced.