Greer

MEMORANDUM *

James Greer appeals the district court’s entry of judgment as a matter of law in favor of Deputy James Morgan on a number of claims arising from events following a 911 call. The district court held Morgan entitled to qualified immunity on Greer’s claims of excessive force, unlawful arrest, and unlawful search of his home. We affirm.

I.

Greer contends that Morgan waived the defense of qualified immunity. He is wrong. Morgan pled qualified immunity as an affirmative defense in his answer.

II.

Qualified immunity analysis consists of two parts. First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). Second, if a violation occurred, was the right clearly established? Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151 .

Greer contends that the district court erred when it entered judgments as a matter of…

dissenting.

I respectfully dissent from the majority’s analysis of Greer’s excessive force and unlawful arrest claims. When granting judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000). In resolving the motions for judgment as a matter of law in this case, inferences were drawn in favor of Officer Morgan, the moving party. Because I believe that factual issues prevent us from deciding this case as a matter of law, I would remand to the district court so that *722 a jury may make the appropriate factual determinations.

The parties present fundamentally different accounts of the events leading up to the take-down. Greer tendered evidence that he gave Morgan permission to frisk him and to search his home for two minutes, and that Morgan obliged, but found nothing incriminating. Then, according to Greer, he told Morgan and the other officers to get out of his house, and tried to go back home. Morgan ordered…