Joseph Gerhart, et al v. Rankin County, Mississippi

Filing

UNPUBLISHED OPINION FILED. [17-60331 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate issue date is 11/16/2017 [17-60331]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-60331
Summary Calendar

FILED
October 25, 2017
Lyle W. Cayce
Clerk

JOSEPH GERHART, Individually, and next friend of Brett Michael Gerhart,
Ian Michael Gerhart, and Sarah Robillard, minors; AMANDA JO GERHART,
Individually, and next friend of Brett Michael Gerhart, Ian Michael Gerhart,
and Sarah Robillard, minors,
Plaintiffs - Appellees

v.

BRAD MCLENDON, in his official and individual capacity,
Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:11-CV-586
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Brad McLendon was one of a number of police
officers conducting a narcotics sting operation with a confidential informant.
When the confidential informant told officers that she was in danger, they
began to move to the property (at 473 Robert Michael Drive) where the sting

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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operation was to take place. McLendon and the other officers in his vehicle
mistakenly targeted the house (at 481 Robert Michael Drive) where Joseph
and Amanda Gerhart lived with their children, Brett and Ian, and their niece,
Sarah Robillard. The Gerhart group sued, alleging violations of their Fourth,
Fifth, and Fourteenth Amendment rights under 42 U.S.C. § 1983 and various
state-law torts. The district court entered summary judgment in McLendon’s
favor on the state-law claims. However, it denied summary judgment as to the
federal-law claims, concluding that McLendon was not entitled to qualified
immunity. We AFFIRM.
I.
By June 2010, Detective Jamie Scouten of the Pearl Police Department
had spent several months investigating the residence at 473 Robert Michael
Drive in Pearl, Mississippi. 1 As part of that investigation, Scouten used a
confidential informant (“CI”) to conduct “buy-bust” operations in which the
informant would purchase methamphetamine at the residence. The U.S. Drug
Enforcement Administration (“DEA”) learned about Scouten’s operation. It
requested that he conduct another buy-bust operation in order to “freshen up”
the probable cause for arrest and search warrants. Based on the DEA’s
interest, Scouten requested back-up from other law enforcement agencies,
including Rankin County and the Rankin County District Attorney’s Office.
Prior to the operation, he prepared warrants and supporting affidavits for 473
Robert Michael Drive. The plan was for the CI to purchase methamphetamine
and bring it to the officers, who would test it. Scouten would then fill in the
salient details in the warrant and get a judge’s approval.

As we explain in Section II, we lack jurisdiction to review the district court’s factual
findings. We base our legal conclusions on the facts that the district court found sufficiently
supported in the summary judgment record, Gerhart v. Rankin Cnty., No. 3:11-CV-586, 2017
WL 1238028 (S.D. Miss. Mar. 31, 2017).
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Brad McLendon had been an agent of the Mississippi Bureau of
Narcotics for three years at the time of the operation. The district court found
that Scouten never asked McLendon to join the operation. According to the
district court, McLendon just happened to be at the Pearl Police Department
station. McLendon testified that one of his superiors had asked him to go to
Pearl that day to help with the operation.
The operation took place on June 7, 2010. Scouten held a briefing
beforehand at the police station. During that briefing, Scouten told all of the
officers participating that the target residence was 473 Robert Michael Drive.
He then wrote “473 Robert Michael Drive” across the top of a sheet of paper
and asked the CI to draw a diagram of the interior of the residence. Scouten
and the CI also went over a number of other key details during that briefing,
including the location, the persons involved, the type of narcotics, and the
identity of the CI. This last piece of information was key because if the officers
needed to enter the residence, it was important for the CI’s safety that they
could identify her. Scouten used Google Earth images to familiarize officers
with the location and appearance of the target residence. Scouten also
mentioned that an unusual van with a “dualie [sic] axle” was parked in the
driveway of the target residence. Because the target residence had burglar bars
around all windows, Scouten told the others that they would have to enter
through a side door. 2
There is a dispute over whether or not McLendon was present at that
briefing. Scouten and several other officers claim that he was. McLendon
insists that he was not there. Moreover, he claimed not to know key pieces of
information. He did not know the location, color, or address of the target

2

The Gerhart house did not have any burglar bars.

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residence. He also did not know what the CI’s vehicle looked like or even who
she was.
Scouten divided the officers into several vehicles, making sure that at
least one officer in each vehicle could access the Pearl Police Department’s
radio channels. McLendon was assigned to a vehicle with two other officers:
Brett McAlpin of the Rankin County Sheriff’s Department and John Barnes of
the Pearl Police Department. Barnes, McAlpin, and McLendon were tasked
with stationing themselves at the end of Robert Michael Drive, where they
would maintain visual contact with the residence in order to track the CI and
ensure that no suspects left. They were the only officers who could see the
target residence. The others were parked out of sight at a nearby church.
The CI and the officers left the station around 7:00 p.m. The plan was
for McLendon to follow the CI to the residence. McLendon insisted that he did
not follow the CI to the target residence, though others testified that he did.
Barnes and Scouten, for instance, both testified that McLendon had to brake
as the CI turned into the driveway of the target residence in order to avoid
hitting her vehicle. McLendon then drove past the residence for about 200
yards, turned around, and parked facing the residence. It was still daylight
when they arrived, weather conditions were normal, and the terrain between
the officers and the target residence was level.
Barnes, McAlpin, and McLendon gave inconsistent testimony about who
identified the target residence and how. Barnes claimed that he identified the
target residence (at 473 Robert Michael Drive) correctly and pointed out the
van with the unusual “dualie [sic] axle.” McAlpin initially testified that both
Barnes and McLendon identified 481 Robert Michael Drive as the target
residence, though he later stated that only Barnes did so. McLendon also
testified that Barnes identified 481 Robert Michael Drive as the target
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residence as they drove past and that he specifically pointed to a young man
standing outside that residence.
The CI entered 473 Robert Michael Drive and bought $600 of
methamphetamine. Suddenly, the CI texted Scouten to tell him she was in
danger. Scouten broadcast to the other officers that the CI was in danger. He
told them to converge on the target residence and do everything they could to
help the CI. All vehicles acknowledged the signal—except McLendon’s. Barnes
testified that he had turned his radio off because McLendon was trying to tune
into the radio broadcast from the CI’s recording equipment. Scouten
specifically requested a response from McLendon’s vehicle. Barnes replied that
he did not hear the prior transmission, and Scouten repeated it. McAlpin was
aware of the second call to go to the target residence, whereas McLendon
testified that it never happened.
Meanwhile, Brett Gerhart was standing in front of his house at 481
Robert Michael Drive when he noticed McLendon’s black Cadillac Escalade
drive by and park at the end of the street. Some time later, he heard
McLendon’s tires screech as McLendon raced toward the Gerhart residence.
McLendon drove onto the Gerharts’ yard and parked between some trees.
According to Brett, the blue siren lights on McLendon’s car were not on, and so
there was no indication that it was a police vehicle. As Scouten was rounding
the corner, he saw McLendon driving down the street. After Scouten got out of
his vehicle, he heard yelling and saw McAlpin, McLendon, and Barnes running
across the Gerhart yard and into the house.
Barnes, McAlpin, and McLendon got out of the vehicle and pulled out
their weapons. McAlpin told Brett to get on the ground, though it is disputed
whether he identified himself as a police officer. All three officers were,
however, wearing vests identifying them as police officers. Brett testified that
he did not notice the vests until the officers left. When McClendon’s vehicle
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came to a stop on the Gerharts’ yard, Brett ran into the residence through a
side door and locked the door behind him. He went through the residence,
shouting, “They have guns!” McAlpin kicked in the side door and started to
chase Brett. Brett testified that he then ran through the front door to prevent
intruders from coming into the house. According to Brett, McAlpin caught him
at the front door, threw him to the ground, and began kicking him in the side
and back of the head. McAlpin acknowledges that he pointed his gun at Brett’s
head but denies kicking him. McAlpin then brought Brett into the living room.
McLendon encountered Joseph Gerhart, Brett’s father, when he entered
the residence. Joseph was on the floor by that time, and McLendon aimed his
gun at Joseph’s face. When Joseph tried to get up to help his son, McLendon
put his hand on Joseph’s back and repeatedly told him to stay down. Barnes
was the last to enter the residence, where he encountered Amanda Gerhart in
a fetal position, holding a baby in her arms. Amanda testified the she only
assumed a fetal position after Barnes pointed his gun at her. After Barnes
asked for Amanda’s name, he realized that they were in the wrong house.
Amanda, however, testified that Barnes never said anything to her. She
managed to retreat to her son Ian’s room and told him to call 911. Ian made
the call and told the operator that there were men with guns in the house.
Barnes found McAlpin in the living room, where he had Brett pinned to
the ground. After Barnes told McAlpin that they were in the wrong house,
McAlpin got off of Brett and left. McLendon likewise left when he discovered
that they were in the wrong house.
While Barnes, McAlpin, and McLendon were inside the Gerhart
residence, Scouten and the other officers had converged on the target
residence. After Scouten arrived, he initially believed that it would not be
possible to get in without breaching tools, and he went to look for McAlpin, who
was supposed to bring them to the target residence. He walked toward the
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Gerhart residence and saw McAlpin and McLendon leaving. Someone yelled
from the target residence that they had finally managed to break in without
the breaching tools, and Scouten returned to the target residence.
Brett suffered injuries to his face and neck, and the city of Pearl
ultimately paid for the door that McAlpin destroyed. The Pearl Police
Department also conducted an investigation of the incident, which concluded
that the officers were inattentive.
Joseph and Amanda filed this lawsuit on their own behalf and on behalf
of their children and niece on September 20, 2011. 3 They filed their Fourth
Amended Complaint (now the operative complaint in this action) on December
1, 2016. The Gerharts alleged that McLendon 4 was liable under 42 U.S.C.
§ 1983 for violating their Fourth, Fifth, and Fourteenth Amendment rights by
conducting an unreasonable search of their residence and using excessive force
against them. They also alleged state-law claims of civil conspiracy, reckless
infliction of emotional distress, and negligent infliction of emotional distress.
McLendon filed a motion for summary judgment, arguing that he was entitled
to qualified immunity on the federal-law claims and that the Mississippi Tort
Claims Act barred their state-law claims. The district court held that the
Gerharts had abandoned their state-law claims due to their failure to brief
them. However, the district court also held that McLendon was not entitled to
qualified immunity. Specifically the court found “multiple issues of disputed
fact” that suggested that McLendon “did not partake of the simplest precaution
of his unconstitutional Fourth Amendment violation of the Gerhart residence.”
Gerhart v. Rankin Cnty., No. 3:11-CV-586, 2017 WL 1238028, at *12 (S.D.

We refer to Plaintiffs–Appellants collectively as “the Gerharts.”
Although there are numerous defendants in this litigation, this appeal concerns only
McLendon.
3
4

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Miss. Mar. 31, 2017). McLendon appeals that decision to this court and asks
us to reverse.
II.
A.
This case comes to us on appeal from a district court’s denial of a motion
for summary judgment. Normally, we would review de novo, applying the same
standard as the district court. Kinney v. Weaver, 367 F.3d 337, 347–48 (5th Cir.
2004) (en banc). A district court must enter summary judgment if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “On appeal, we would ordinarily apply
that same Rule 56 standard, and we would reverse the district court’s denial
of summary judgment if we concluded that the district court found a genuine
factual dispute when, on our own review of the record, no such genuine dispute
exists.” Kinney, 367 F.3d at 348.
But there is a wrinkle in our ordinary standard of review. The courts of
appeals generally have jurisdiction over only final decisions of the district
courts. See 28 U.S.C. § 1291. “[I]nterlocutory appeals—appeals before the end
of district court proceedings—are the exception, not the rule.” Johnson v.
Jones, 515 U.S. 304, 309 (1995). The Supreme Court has, however, made one
such exception for denials of summary judgment based on qualified immunity.
Because qualified immunity is “an immunity from suit rather than a mere
defense to liability . . . , it is effectively lost if a case is erroneously permitted
to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, the Court
has held that we have jurisdiction to review a district court’s denial of a claim
of qualified immunity. See id. at 530.
Our review, however, is much more limited than it would ordinarily be.
We can review only “the purely legal question whether a given course of
conduct would be objectively unreasonable in light of clearly established law.”
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Kinney, 367 F.3d at 347. This means that we cannot second-guess the district
court’s determination that genuine factual disputes exist. See id. at 348 (citing
Behrens v. Pelletier, 516 U.S. 299, 313 (1996)). Rather, we “consider only
whether the district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported.” Id. (citing
Behrens, 516 U.S. at 313; Jones, 515 U.S. at 313). In doing so, we view the facts
in the light most favorable to the plaintiff. See Gonzales v. Dallas Cnty., 249
F.3d 406, 411 (5th Cir. 2001) (“[O]n interlocutory appeal the public official
must be prepared to concede the best view of the facts to the plaintiff and
discuss only the legal issues raised by the appeal.” (citing Berryman v. Rieger,
150 F.3d 561, 562–63 (6th Cir. 1998))).
B.
A public official is entitled to qualified immunity unless a plaintiff can
show “(1) that the official violated a statutory or constitutional right, and (2)
that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). In order for a right to be “clearly established,” the
relevant legal authorities must give the officer “fair warning” that his or her
conduct was unlawful. Hope v. Pelzer, 536 U.S. 730, 739–41 (2002). Although
the right cannot be defined too abstractly, the Supreme Court has rejected any
requirement that the facts of prior cases be “fundamentally” or “materially”
similar. See id. at 741. Thus, “officials can still be on notice that their conduct
violates established law even in novel factual circumstances.” Id. 5 The key
question is not whether there is a case directly on point, but whether a
See also Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997) (“There has never been a
section 1983 case accusing welfare officials of selling foster children into slavery; it does not
follow that if such a case arose, the officials would be immune from damages liability . . . .”
(alteration in original) (quoting K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.
1990))).
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reasonable officer would understand that his or her conduct was unlawful. See
Kinney, 367 F.3d at 349–50.
III.
McLendon concedes that the Gerharts have established the first prong
of the qualified immunity analysis, but he contends that they cannot establish
the second prong for two reasons. First, there is no case that requires an officer
who does not plan a search or lead a search team to ensure that the place to be
searched is correctly identified. Second, the extreme circumstances under
which he mistakenly entered the Gerhart residence tip the reasonableness
balance in his favor. We consider (and reject) each of these arguments in turn.
A.
A warrantless search of a home is presumptively unreasonable, absent
probable cause, consent, or exigent circumstances. See, e.g., United States v.
Jones, 239 F.3d 716, 719 (5th Cir. 2001) (collecting cases). Nonetheless, no
Fourth Amendment violation occurs when officers attempting to perform a
valid search mistakenly search the wrong property—as long as they make “a
reasonable effort to ascertain and identify the place intended to be searched.”
Maryland v. Garrison, 480 U.S. 79, 88 (1987). Accordingly, “officers are
generally granted qualified immunity if the evidence is undisputed that they
merely made an honest mistake when entering the incorrect home.” Hunt v.
Tomplait, 301 F. App’x 355, 359 (5th Cir. 2008) (per curiam) (citing Simmons
v. City of Paris, 378 F.3d 476, 479–80 (5th Cir. 2004)). McLendon concedes that
the Gerharts have established the first prong of the qualified immunity
analysis, so we can assume that he did not make reasonable efforts to correctly
identify the target residence. The question, then, is whether McLendon had
fair notice that his efforts fell short of that standard under the second prong.
An unpublished case from this circuit is directly on point. In Hunt v.
Tomplait, officers were trying to apprehend a suspect who had evaded arrest
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by using deadly force against the officers. See 301 F. App’x at 356. Based on
information from a cell phone tracking device and a witness, they obtained a
warrant for the suspect’s father’s residence. See id. at 356. However, the
officers leading the search did not read the warrant and instead assumed that
the suspect was at a different property, where they knew that some of his
relatives lived. See id. at 357. They did not try to determine whether the
suspect had any other relatives living nearby, and, as a result, they searched
the wrong home. See id. at 357–58. We held that the officers leading the search
violated clearly established law because there was “no authority to suggest
that” the officers’ feeble attempts to locate the correct residence “constitute[d]
a reasonable effort to ascertain the place to be searched.” Id. at 361–62.
In reaching that conclusion, we relied on the Eleventh Circuit’s
published decision in Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995). In
that case, the officer leading the search had previously accompanied a CI to
the residence named in the warrant. See id. at 951. He nonetheless led a team
of officers to a different residence nearby. See id. at 951–52. Despite his initial
efforts to correctly identify the residence, the officer failed to “simply check[]
the warrant” to ensure that he was going to the correct address. Id. at 955. The
Eleventh Circuit concluded that the officer’s failure to do so violated clearly
established law and that he was not entitled to qualified immunity. See id. at
955–56.
The upshot of these cases is that an officer must make reasonable, nonfeeble efforts to correctly identify the target of a search—even if those efforts
prove unsuccessful. See Rogers v. Hooper, 271 F. App’x 431, 435 (5th Cir. 2008).
On this record as we are required to view it on appeal, McLendon should have

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realized that his efforts fell far short of that standard. 6 McLendon testified that
he did not attend Scouten’s pre-operation briefing. He also denied any
knowledge of key details of the plan, including who the CI was, the location of
the target residence, and the appearance of the target residence. And
McLendon made no affirmative effort to learn those details. Even by his own
account, McLendon only learned the location of the target residence when
Barnes identified it as they were driving past. Moreover, Barnes, McAlpin, and
McLendon dispute whether Barnes correctly identified the target residence.
On this record, McLendon made no effort whatsoever—let alone a reasonable
one—to correctly identify the place to be searched.
McLendon counters that there is no binding precedent in which this
court or the Supreme Court has held that a similarly situated officer acting
under similar circumstances violated the Fourth Amendment. The Supreme
Court has rejected a rigid requirement that previous cases be “materially
similar” in order for the law to be clearly established. See Hope, 536 U.S. at
739–41. 7 We need not immunize an officer from suit for an obvious violation
simply because no case has held that the officer’s precise conduct was unlawful.
See Pierce, 117 F.3d at 882. The law was clear that McLendon had to make “a
reasonable effort to ascertain and identify the place intended to be searched.”
Garrison, 480 U.S. at 88. McLendon is right, of course, that we have not
exhaustively and precisely defined the contours of what constitutes a

Due to our limited jurisdiction, we cannot review the district court’s factual findings.
Nor do we have the benefit of the evidence as it will emerge at trial. Thus, our opinion should
not be read to preclude dismissing this case on qualified immunity grounds at another point
in the proceedings.
7 McLendon further argues that to the extent that we interpret Hunt as supplying the
required precedent, it was an unpublished case incapable of clearly establishing the law. This
is a misreading of Hunt. Hunt did not establish the right to be free from a warrantless search
based on an unreasonable misidentification of the place to be searched. Garrison did. See 480
U.S. at 88; see also Hunt, 301 F. App’x at 361 (citing Garrison, 480 U.S. at 88). Hunt merely
found that the right was already clearly established. See 301 F. App’x at 361–63.
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“reasonable effort.” Whatever the precise contours of that phrase, it surely
means that officers must make an effort to be sure they search the right
residence in order to receive the protections of qualified immunity. Compare
Rogers, 271 F. App’x at 435 (holding that officers were entitled to immunity
where they “made an initial surveillance of the house” and erred in part
because a car initially parked in front of the target house had moved to the
front of plaintiffs’ house by the time of the search), with Guerra v. Sutton, 783
F.2d 1371, 1375 (9th Cir. 1986) (holding that officers participating in search
were not entitled to qualified immunity because they were “not given an
advance briefing” on the search and did not “inquire as to the nature and scope
of the warrant”). McLendon’s conduct does not fall at the hazy borders of the
law. The district court found that he was totally unaware of key operational
details and did not even bother to ask. On this record, it appears that he did
little more than show up.
McLendon argues that the cases establish only that officers leading a
search must make such efforts. We cannot endorse such a confined view of the
precedent. To the contrary, although the cases impose heightened obligations
on leaders, they make clear that officers who participate in searches still have
an obligation to make reasonable efforts to correctly identify the place to be
searched. See Hunt, 301 F. App’x at 362 n.8 (“What’s reasonable for a
particular officer depends on his role in the search.” (quoting Ramirez v. ButteSilver Bow Cnty., 298 F.3d 1022, 1027 (9th Cir. 2002), overruled on other
grounds by United States v. Grubbs, 547 U.S. 90 (2006))); cf. Hartsfield, 50 F.3d
at 956 (holding that officers participating in search were entitled to qualified
immunity because “nothing in the record indicate[d] that these officers acted
unreasonably in following [the other officer’s] lead, or that they knew or should
have known that their conduct might result in a [constitutional] violation”). An
officer who makes no reasonable effort to correctly identify the place to be
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searched does not get immunity merely because someone else was leading the
search.
Accordingly, McLendon violated clearly established law by failing to
make any effort to ensure that he could correctly identify the target residence.
B.
McLendon also argues that the extreme circumstances tip the balance in
favor of qualified immunity. If the danger here were unexpected, we might
agree. In White v. Pauly, for instance, the Supreme Court held that an officer
did not violate clearly established law when he used deadly force after arriving
on the scene in the middle of a shoot-out between the officers and the plaintiffs.
See 137 S. Ct. 548, 550, 552 (2017). By contrast, McLendon and the other
officers knew or should have known well in advance that the buy-bust
operation could become dangerous. Indeed, Scouten held the pre-operation
briefing in part to ensure that officers could rescue the CI in an emergency.
This is not a case where the emergency was unexpected, even if it was sudden.
McLendon had the opportunity to prepare for that eventuality, but he
apparently failed to do so. This is what distinguishes McLendon’s case from
one where the emergency would weigh in the officer’s favor: his total failure to
prepare. Cf. Rogers, 271 F. App’x at 435 (“[B]ecause the search was to occur at
night, the chance for a mistake was greater and the need for precautions
proportionately were [sic] increased.”). McLendon’s lack of preparation is all
the more unreasonable because he, Barnes, and McAlpin were the officers
entrusted with visually monitoring the target residence and responding first
in the case of an emergency.
In his reply brief, McLendon makes a related but distinct argument. He
argues that he had an objectively reasonable belief that “exigent
circumstances” justified a warrantless search of the Gerhart residence. His
opening brief does not even mention the exigent circumstances exception to the
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warrant requirement. He contends only that “extreme circumstances” made
his mistake of one residence for another reasonable, not that he had an
independent and objectively reasonable belief that he could search the Gerhart
residence under the exigent circumstances exception to the warrant
requirement. By failing to raise the exigent circumstances argument until his
reply brief, McLendon has waived it. See, e.g., Dixon v. Toyota Motor Credit
Corp., 794 F.3d 507, 508 (5th Cir. 2015).
Even if he had not, we would still reject it. McLendon identifies two facts
that supposedly created an objectively reasonable belief that he could enter the
Gerharts’ home: (1) Brett ran into the house and disobeyed McAlpin’s order;
and (2) the CI was in danger. The district court found, however, that McLendon
had already parked on the Gerharts’ lawn before Brett started running. He was
responding to the CI’s distress signal and targeted the Gerhart residence not
because Brett ran but because he mistook it for the target residence. The
danger facing the CI was undoubtedly an exigent circumstance. But the CI was
at the target residence, not the Gerhart residence. McLendon’s determination
that the danger was inside the Gerhart residence rather than the target
residence was not reasonable because, as explained above, he did nothing in
advance to make sure he could identify the correct residence, despite having
the opportunity to do so.
IV.
On this record, given our limited standard of review on this interlocutory
appeal, we conclude that McLendon is not entitled to qualified immunity as a
matter of law. Accordingly, we AFFIRM.

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