Opening the Door Is Not Consent: Eleventh Circuit Denies Qualified Immunity for Warrantless Entry and Subsumes Derivative Seizure/Excessive-Force Claims

Case: Terry Dukes, Sr. v. Chase Gregory

Court: United States Court of Appeals for the Eleventh Circuit

Decision Date: October 16, 2025

Panel: Chief Judge William Pryor; Circuit Judges Luck and Brasher (opinion by Judge Brasher)

Introduction

In a published decision, the Eleventh Circuit addresses two recurring Fourth Amendment questions arising from “knock and talk” encounters and home entries. First, what conduct by a resident constitutes consent for officers to cross the home’s threshold without a warrant or exigent circumstances? Second, how should courts treat subsequent unlawful seizure and excessive-force claims that depend entirely on an allegedly unlawful entry?

The case stems from an early-morning police approach to the home of plaintiff-appellee, Terry Dukes, Sr., as officers searched for his adult son, a suspect in a domestic violence incident reported to involve drugs and possibly a firearm. Without a warrant and absent exigent circumstances, Corporal Chase Gregory entered through a back door after Dukes opened it and walked away without any communication. Inside the darkened home, officers confronted Dukes in his bedroom, where a firearm was present; when Dukes reached for his pants, Gregory deployed a taser, handcuffed Dukes, and escorted him outside for 15–30 minutes.

Dukes sued Gregory (in his individual capacity) for unlawful entry (Count III) and unlawful seizure, including false arrest/detention and excessive force (Count IV). The district court denied qualified immunity, and Gregory appealed. The Eleventh Circuit affirms in part and vacates in part: it affirms the denial of qualified immunity on the unlawful-entry claim, holding that opening a door and walking away—without any communication—does not provide consent to enter and that this rule was clearly established. It vacates the denial on the seizure claims, holding (in light of plaintiff’s concession) that they are entirely derivative of the unlawful entry and must be treated as subsumed by it.

Summary of the Opinion

Jurisdiction: The court has interlocutory jurisdiction because the appeal presents a mixed question: evidentiary sufficiency (whether there was consent) and the purely legal issue of clearly established law (whether an officer could reasonably believe this entry was lawful).
Unlawful Entry (Count III): Viewing the facts in the light most favorable to Dukes, a jury could find that he did not consent to Gregory’s entry. It was clearly established—long before 2019—that an officer cannot infer consent to enter a home merely because the occupant opens a door and retreats without communicating. Qualified immunity is therefore denied on the entry claim.
Unlawful Seizure/Excessive Force (Count IV): In light of plaintiff’s concession at oral argument that his seizure and excessive-force theories are entirely derivative of the allegedly unlawful entry, the court vacates the denial of qualified immunity on Count IV and remands for the district court to treat those components as subsumed into the unlawful-entry claim. The district court may dismiss Count IV to avoid double recovery.
Bottom Line: Affirmed in part (Count III), vacated and remanded in part (Count IV).

Detailed Analysis

A. The Court’s Framework and Key Holdings

The court proceeds in three steps: (1) interlocutory jurisdiction; (2) unlawful-entry analysis (evidentiary sufficiency and clearly established law); and (3) treatment of the derivative unlawful seizure/excessive-force claims.

1) Interlocutory Jurisdiction

Interlocutory review is available when an appeal from denial of qualified immunity presents a legal question about clearly established law, even if there are underlying factual disputes, so long as the appellate court can accept the plaintiff’s version of the facts. Here, the court identifies:

A factual dispute: whether Dukes consented to entry.
A legal question: whether, on the facts as the plaintiff presents them, clearly established law permitted the officer’s entry.

This mixed posture suffices for interlocutory review.

2) Unlawful Entry: No Consent from Opening a Door and Retreating

On the merits, the court starts from the foundational rule: the home occupies the “very core” of the Fourth Amendment; warrantless entry is presumptively unreasonable absent exigency or voluntary consent. No exigency existed, and there was no warrant. The question is consent.

Under the totality of circumstances—early hours, darkness, plaintiff’s hearing difficulty, no officer stationed at the back door, no verbal exchange, no gestures inviting entry—a reasonable jury could find that Dukes did not consent. The court distinguishes cases recognizing implied, nonverbal consent where a resident’s words or actions communicated acquiescence to a request to enter; here, there was no communication at all.

The precedent was also clearly established: an officer may not infer consent merely from a resident’s opening a door and walking away, leaving it open. Entering a home under these circumstances without a warrant or exigency violates the Fourth Amendment. Thus, qualified immunity is unavailable on Count III.

3) Derivative Seizure and Excessive-Force Theories Are Subsumed

The court then addresses how to treat seizure-related claims that depend entirely on an earlier unlawful entry. Where a plaintiff’s false arrest/detention and excessive-force claims rise and fall solely with the illegality of the entry—rather than asserting independent errors (e.g., lack of probable cause during a lawful entry, or unreasonable force during a lawful arrest)—such claims are subsumed; damages for the entry necessarily encompass harms from the seizure and force.

At oral argument, Dukes conceded that his unlawful seizure and excessive force theories are entirely derivative of the unlawful entry. Following circuit precedent, the court vacates the denial of qualified immunity as to Count IV and remands for the district court to treat that count as subsumed into Count III (and to dismiss it as a matter of law to prevent duplicative recovery).

B. Precedents Cited and Their Influence

Payton v. New York, 445 U.S. 573 (1980): Establishes the “firm line” at the home’s threshold. This decision anchors the presumption against warrantless home entry, absent narrowly drawn exceptions (exigency or consent). The court invokes Payton to emphasize the sanctity of the home.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973): Consent must be voluntary, not the product of duress or coercion, assessed under the totality of the circumstances. The Eleventh Circuit applies this voluntariness/totality framework to assess whether Dukes consented.
United States v. Burgos, 720 F.2d 1520 (11th Cir. 1983): Defines exigency as a situation in which obtaining a warrant would unduly delay immediate action. No such exigency existed here, narrowing the justification to consent alone.
United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996), abrogated on other grounds by Arizona v. Gant (2009): An officer violated the Fourth Amendment by following a resident through an open door into her home without affirmative permission. Critically, the resident’s failure to object and the open door did not equal consent. This case is materially similar and supplies the clearly established rule.
Bashir v. Rockdale County, 445 F.3d 1323 (11th Cir. 2006): Officers may not infer consent from a resident’s actions when the officers neither ask nor receive permission to enter. Bashir also establishes two key points here: (a) the clearly established nature of the no-consent rule in home-entry cases, and (b) the doctrinal approach to subsuming seizure and excessive-force claims that are entirely derivative of an unlawful entry.
McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007): A resident’s opening of a door—even in response to a knock—does not itself imply consent to enter or to seize a person inside. The opinion relies on McClish to emphasize that door-opening is distinct from invitations to enter.
Gill ex rel. K.C.R. v. Judd, 941 F.3d 504 (11th Cir. 2019): Recognizes that consent can be implied from words and gestures, but only after meaningful communication (officer states he’s there to arrest; resident puts dog away, returns, opens door wide, and steps back). The court distinguishes Judd because here there was no communication at all before entry.
Fish v. Brown, 838 F.3d 1153 (11th Cir. 2016); Hardigree v. Lofton, 992 F.3d 1216 (11th Cir. 2021): Illustrate the separation of unlawful entry, false arrest/detention, and excessive force as distinct claims when they present independent constitutional questions; also supply the framework for when claims collapse into each other.
Jackson v. Sauls, 206 F.3d 1156 (11th Cir. 2000); Graham v. Connor, 490 U.S. 386 (1989): Provide standards for analyzing excessive force under the Fourth Amendment’s reasonableness test when force issues are independent. Here, the force claim is derivative, so the court treats it under Bashir’s subsumption approach.
Richmond v. Badia, 47 F.4th 1172 (11th Cir. 2022); Bates v. Harvey, 518 F.3d 1233 (11th Cir. 2008): Address double recovery concerns and explain how arrest and force-related damages may be captured within a single unlawfully precipitated entry/seizure event.
United States v. Perkins, 348 F.3d 965 (11th Cir. 2003): Notes differing Fourth Amendment scrutiny depending on the seizure type (arrest vs. investigative detention), underscoring why seizure claims can be independent when they do not collapse into the entry question.
Nelson v. Tompkins, 89 F.4th 1289 (11th Cir. 2024); English v. City of Gainesville, 75 F.4th 1151 (11th Cir. 2023); Koch v. Rugg, 221 F.3d 1283 (11th Cir. 2000): Govern interlocutory appellate jurisdiction over qualified immunity denials, distinguishing evidentiary sufficiency from legal issues concerning clearly established law. The court relies on these to assert jurisdiction here.
Nesbitt v. Candler County, 945 F.3d 1355 (11th Cir. 2020); Williamson v. Milles, 65 F.3d 155 (11th Cir. 1995): Support holding parties to concessions made at oral argument and the dismissal of claims that fail as a matter of law in light of those concessions.

C. The Court’s Legal Reasoning

1) Evidentiary Sufficiency: No Consent on These Facts

Consent is measured by the totality of the circumstances and must be voluntary. The court underscores several facts that, taken together and viewed favorably to Dukes, permit a reasonable jury finding of no consent:

It was before sunrise; the home was dark.
Officers knocked at the side and front, not at the back; Dukes opened the back door, where no officer was positioned.
Dukes, hard of hearing, did not know officers were outside; he thought his son was returning.
There was no verbal or nonverbal communication between Dukes and Gregory before entry; Dukes simply turned and walked back inside.
Gregory entered without asking permission or announcing his entry until after he was inside.

These facts distinguish cases recognizing implied consent and align with cases prohibiting inferences of consent from mere door-opening and retreat.

2) Clearly Established Law: The No-Consent Rule Was Settled

The court holds that materially similar Eleventh Circuit precedents—Gonzalez, Bashir, and McClish—clearly established by 2019 that officers cannot enter a home without a warrant or exigency based solely on a resident’s opening a door and leaving it open while walking away. Importantly:

Gonzalez and Bashir rejected the notion that leaving a door open or not objecting is consent when the officer neither requests nor receives permission to enter.
McClish confirms that opening a door is not itself a grant of entry.

By comparison, Judd is inapposite: in that case, the officer communicated his purpose, and the resident’s conduct (returning after securing a dog, opening the door wide, and stepping back) could be read by a jury as an invitation. Here, in contrast, there was no meaningful communication at all—verbal or nonverbal—before entry.

3) Subsumption of Derivative Seizure and Excessive-Force Claims

The court reiterates a critical remedial and doctrinal point: where unlawful seizure and excessive-force theories depend entirely on the unlawfulness of entry, those claims are not independent constitutional violations for which separate damages may be recovered. Rather, as in Bashir, the unlawful entry encompasses the ensuing seizure and any force that necessarily flowed from the officer’s lack of authority to be inside.

Because Dukes conceded that his seizure and force claims are derivative of the entry (i.e., he did not contend that the seizure lacked probable cause independent of the entry or that the force was excessive independent of the entry), Count IV is to be treated as subsumed within Count III and dismissed to avoid double recovery.

Impact and Significance

1) Clarifying Consent Limits in Knock-and-Talk Encounters

This opinion fortifies a bright-line practical message for officers: the mere act of a resident opening a door—even leaving it open and walking away—does not equal consent to enter. Meaningful communication remains the benchmark for implied consent. Officers should:

Announce presence and purpose at the entry point they intend to use.
Seek and obtain affirmative permission (verbal or clearly nonverbal) before crossing the threshold.
Document consent, when possible, to avoid credibility contests about the totality of circumstances.

The attempted reliance on the resident’s silence or retreat—particularly when the resident has not seen or engaged with the officer—will not support qualified immunity in the Eleventh Circuit.

2) Litigation Strategy and Claim Structuring

Plaintiffs and defendants alike should pay close attention to how seizure and force allegations are framed relative to entry:

If unlawful seizure or excessive force is asserted independently (e.g., absence of probable cause following a lawful entry, or unreasonable force during an otherwise lawful seizure), those claims proceed on separate tracks.
If, as here, they are wholly derivative—contingent on the entry being unlawful—then they will be subsumed into the entry claim. Damages will be available, but double counting (e.g., separate line items under both “unlawful entry” and “excessive force” for the same injury) is prohibited.
Oral argument concessions can be outcome-determinative in this structuring. Counsel should be deliberate when characterizing whether arrests/force are independent or derivative.

3) Qualified Immunity Landscape

The decision underscores how “clearly established” case law operates in the home-entry context within the Eleventh Circuit. Because materially similar precedents exist, officers cannot rely on generalized reasonableness to defeat liability. On facts like these—door-opening and retreat without communication—qualified immunity is unlikely to shield warrantless entries.

4) Police-Training Implications

Train officers that knock-and-talks do not authorize entry unless the occupant communicates consent (verbal or clear nonverbal invitations) or an exigency exists.
Positioning matters: standing away from the door that the occupant opens can undermine any implication of consent, especially where the occupant does not see or engage the officer.
After unlawful entry, any subsequent seizure or force will be tainted and may be folded into the entry claim for damages.

5) Damages and Remedies

By channeling derivative seizure and force harms into the unlawful-entry claim, the court ensures a single, comprehensive remedial pathway while preventing double recovery. Plaintiffs still recover for injuries caused by the seizure and force, but those damages are accounted for under the entry claim when the illegality of entry is the sole constitutional defect.

Complex Concepts Simplified

Qualified Immunity: Protects officers from civil damages unless they violate a constitutional right that was clearly established at the time. “Clearly established” means existing precedent put the constitutional question beyond debate under materially similar facts.
Knock and Talk: Officers may approach a home, knock, and attempt to speak with occupants, but they cannot enter without a warrant, exigency, or voluntary consent.
Consent: Must be voluntary under the totality of the circumstances; it can be implied, but only when the occupant’s words or actions communicate permission. Opening a door and walking away, without communication, is not consent.
Exigent Circumstances: Urgent conditions (e.g., imminent danger, destruction of evidence) that justify immediate entry without a warrant. Not present here.
Interlocutory Appeal on Qualified Immunity: Appellate courts can review denials of qualified immunity before trial when legal questions about clearly established law are implicated; they assume the plaintiff’s facts at that stage.
Subsumption of Claims: When seizure and excessive-force claims depend entirely on an unlawful entry, they are folded into (subsumed by) the entry claim. Damages for the seizure/force are recoverable under the entry claim to avoid double recovery.
Arguable Probable Cause/Reasonable Suspicion: Standards that often govern independent false arrest/detention claims. They were not resolved here because plaintiff conceded his seizure and force theories were derivative of the entry.

Conclusion

The Eleventh Circuit’s decision sends two clear messages. First, officers cannot treat a resident’s opening of a door and walking away as an invitation to enter a home. Without a warrant, exigency, or meaningful communication signaling consent, entry violates the Fourth Amendment—and the law on that point was clearly established well before 2019. Second, when a plaintiff’s unlawful seizure and excessive-force claims rest entirely on the illegality of the entry, those claims do not stand alone; they are subsumed within the unlawful-entry claim, and separate recovery is foreclosed to prevent double counting.

In practical terms, this opinion both reinforces longstanding home-entry protections and clarifies how courts should structure claims and remedies in knock-and-talk cases. It will shape police training and civil litigation strategy across the Eleventh Circuit by demanding clear consent for entry and careful delineation of independent versus derivative Fourth Amendment theories.