Opposition Brief — Alexander L. Baxter, Petitioner v. Brad Bracey, et al.

No. 18-1287

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------ALEXANDER L. BAXTER,

Petitioner,

v.

BRAD BRACEY AND SPENCER R. HARRIS,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

-----------------------------------------------------------------BRIEF IN OPPOSITION

-----------------------------------------------------------------KELI J. OLIVER

MELISSA S. ROBERGE*

DEPARTMENT OF LAW FOR THE

METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE

P.O. Box 196300

Nashville, TN 37219

Telephone: (615) 862-6341

Facsimile: (615) 862-6352

keli.oliver@nashville.gov

melissa.roberge@nashville.gov

Counsel for Respondents

*Counsel of Record

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

iii

OPINIONS BELOW.............................................

1

JURISDICTIONAL STATEMENT ......................

1

COUNTERSTATEMENT OF THE CASE ...........

1

REASONS FOR DENYING THE PETITION ......

5

I.

THIS CASE IS NOT THE APPROPRIATE

VEHICLE TO RE-CONSIDER QUALIFIED IMMUNITY .....................................

5

A. Baxter exaggerates the conflict between the Sixth Circuit’s Opinion at

the Motion to Dismiss stage compared

to the Opinion at the Motion for Summary Judgment stage ..........................

5

B. This case is not the appropriate vehicle because this Court would be essentially conducting a first review, not a

final review .......................................... 10

C. The facts presented lie in the blurred

middle ground between constitutional

and unconstitutional. Accordingly, the

Sixth Circuit correctly granted Officer

Harris qualified immunity .................. 11

D. Even considering the cases that Baxter cites to, Officer Harris would still

be entitled to qualified immunity ....... 15

II.

REVIEW IS NOT WARRANTED TO REEXAMINE THE DOCTRINE OF QUALIFIED IMMUNITY ..................................... 18

ii

TABLE OF CONTENTS – Continued

Page

A. Baxter embellishes the struggle that

the lower courts have in defining

clearly established law at the required

level of specificity ................................ 18

B. Qualified immunity exists to protect

split second decisions, such as the one

made in this case ................................. 23

CONCLUSION..................................................... 26

iii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) ...............26

Andujar v. Rodriguez, 486 F.3d 1199 (11th Cir.

2007) ........................................................................11

Baker v. City of Hamilton, Ohio, 471 F.3d 601

(6th Cir. 2006).................................................... 15, 16

Baxter v. Harris, No. 15-6412, 2016 WL

11517046 (6th Cir. Aug. 8, 2016)........................... 1, 7

Baxter v. Harris, 751 Fed. App’x 869 (6th Cir.

2018) .................................................................. passim

Behrens v. Pelletier, 516 U.S. 299 (1996) ......................7

Breen v. Texas A & M Univ., 485 F.3d 325 (5th

Cir. 2007) .................................................................10

Campbell v. City of Springboro, 700 F.3d 779

(6th Cir. 2012).................................................. passim

City and County of San Francisco, Calif. v.

Sheehan, 135 S. Ct. 1765 (2015) .............................19

City of Escondido v. Emmons, 139 S. Ct. 500

(2019) .......................................................................19

Crenshaw v. Lister, 556 F.3d 1283 (11th Cir.

2009) .................................................................. 16, 22

District of Columbia v. Wesby, 138 S. Ct. 577

(2018) ........................................................... 11, 12, 19

Fowler v. UPMC Shadyside, 578 F.3d 203 (3rd

Cir. 2009) ...................................................................7

Graham v. Connor, 490 U.S. 386 (1989) .....................25

iv

TABLE OF AUTHORITIES – Continued

Page

Humphrey v. Mabry, 482 F.3d 840 (6th Cir. 2007)........ 10

Ingram v. Pavlak, No. Civ. 03-2531, 2004 WL

1242761 (D.Minn. June 1, 2004) .............................17

Jennings v. Jones, 499 F.3d 2 (1st Cir. 2007) .............26

Johnson v. Scott, 576 F.3d 658 (7th Cir. 2009) ...........16

Jones v. Fransen, 857 F.3d 843 (11th Cir. 2017) ..... 21, 22

Kisela v. Hughes, 138 S. Ct. 1148 (2018) ....................19

Mannoia v. Farrow, 476 F.3d 453 (7th Cir. 2007) ....... 10

McAllister v. Dean, No. 4:13-CV-2492, 2015 WL

4647913 (E.D. Mo. Aug. 5, 2015) .............................17

Mullenix v. Luna, 136 S. Ct. 305 (2015) ............... 17, 18

Mullins v. Cyranek, 805 F.3d 760 (6th Cir. 2015) ......17

Ortiz ex rel. Ortiz v. Kazimer, 811 F.3d 848 (6th

Cir. 2016) .................................................................15

Pearson v. Callahan, 555 U.S. 731 (2011) ..................11

Priester v. City of Riviera Beach, 208 F.3d 919

(11th Cir. 2000).................................................. 21, 22

Reeves v. Churchich, 484 F.3d 1244 (10th Cir.

2007) ........................................................................10

Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988)...... 12, 21

Salazar-Limon v. City of Houston, 137 S. Ct.

1277 (2017) ..............................................................12

Saucier v. Katz, 533 U.S. 194 (2001)...........................25

White v. Harmon, 65 F.3d 169 (6th Cir. 1995) ............20

White v. Pauly, 137 S.Ct. 548 (2017)...........................19

v

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISION

U.S. Const. amend. IV .................................................20

STATUTES

28 U.S.C. § 1254 ............................................................1

42 U.S.C. § 1983 ..........................................................23

Tenn. Code Ann. § 39-14-402 ........................................2

RULES

SUP. CT. R. 10 ................................................................1

FED. R. CIV. P. 12 ..........................................................7

OTHER REGULATIONS

Nashville, Tenn., Municipal Code § 2.40.140

(2019) .......................................................................24

OTHER AUTHORITIES

Aaron L. Nielson & Christopher J. Walker, A

Qualified Defense of Qualified Immunity, 93

Notre Dame L. Rev. 1853 (2018) ....................... 23, 24

Anthony P. Chiarlitti, Civil Liability and the Response of Police Officers: The Effect of Lawsuits

on Police Discretionary Actions, Education Doctoral, Paper 262, St. John Fisher College (2016) ......24

Stephen M. Shapiro, et al., Supreme Court Practice, Ch. 4.4(f ) (10th ed. 2013) ................................15

1

BRIEF IN OPPOSITION

OPINIONS BELOW

The Sixth Circuit Court of Appeals’ unpublished

Opinion granting Respondents’ summary judgment

based on the doctrine of qualified immunity can be

found at 751 Fed. App’x 869 (6th Cir. 2018) (App. 1a).

Also unpublished is the Sixth Circuit Court of Appeals’

finding on the motion to dismiss. Baxter v. Harris, No.

15-6412, 2016 WL 11517046 (6th Cir. Aug. 8, 2016)

(App. 14a).

------------------------------------------------------------------

JURISDICTIONAL STATEMENT

Respondents do not dispute this Court’s jurisdiction over this case pursuant to 28 U.S.C. § 1254(1), but

deny that the case satisfies the standard set forth in

Supreme Court Rule 10. Petitioner filed his Petition for

Writ of Certiorari on April 8, 2019.

------------------------------------------------------------------

COUNTERSTATEMENT OF THE CASE

Petitioner, Alexander Baxter (“Baxter”), paints the

facts as “straightforward” and focuses on the mere five

seconds that passed between when Baxter raised his

hands and when Respondent Officer Spencer Harris

(“Officer Harris”) released his K-9, Iwo. The crucial undisputed fact in the record, however, is that Officer

Harris never saw Petitioner’s hands raised. Moreover,

2

limiting the pertinent window of time to five seconds

ignores the following:

On January 8, 2014, Baxter walked around “looking for something” because there were people who

would buy laptops and other electronics from him.

(Baxter Deposition (“Baxter Depo.”), PageID# 458-459,

RE 99-1.) He would open doors and if they were unlocked, he would run in, grab a few things, and run

back out. Id. After breaking into a home on Portland

Avenue, he stole some change, car keys and a bottle of

liquor. Id. at PageID# 462. After observing Baxter enter the home, a neighbor called the police. (Declaration

Spencer Harris (“Harris Dec.”) ¶ 8, PageID# 516, RE

99-2.) While on the phone with the police, the neighbor

saw Baxter leave the home and get into the car.

After seeing a police helicopter and a police car,

Baxter knew the police were looking for him, and he

bolted from the car to a home he had previously broken

into. (Baxter Depo., PageID# 463-464, RE 99-1.) While

fleeing, he acknowledged that “it looked pretty bad.”

Id. at PageID# 466.

Once officers arrived on the scene, they verified

that Baxter had committed an aggravated burglary.

(Harris Dec. ¶ 8, PageID# 516, RE 99-2; see Tenn. Code

Ann. § 39-14-402 (defining aggravated burglary as burglary of a habitation)). Given Baxter’s actions in fleeing

and the serious crime he had committed, the K-9 unit

was called in to assist in apprehension. (Harris Dec.

¶ 7-8, PageID# 516, RE 99-2.)

3

The aviation unit tracked Baxter to a home on

Fairfax Avenue, where Baxter jumped through a

ground floor window that led to a basement. (Baxter

Depo., PageID# 464-465, RE 99-1.) He immediately ran

across the room to look out another window for police,

but upon hearing the police radio he went to a defensive position between a chimney and a water heater.

Id. at PageID# 468. While light was coming in through

the windows, Baxter still described the basement

as dark. Id. at PageID# 468-469; Harris Dec. ¶ 12,

PageID# 518, RE 99-2.

Baxter saw a police officer look into the windows,

but does not know if the officer saw him. (Baxter Depo.

PageID# 470, RE 99-1.) Despite knowing police surrounded the home, hearing police officers call for his

surrender, and knowing that they intended to release

a police dog, Baxter remained hidden and silent. Id. at

PageID# 471-473.

Respondent Officer Brad Bracey (“Officer Bracey”)

shouted a warning into the basement that a K-9 would

be released. (Harris Dec. ¶ 10-11, PageID# 516, RE

99-2.) Officer Harris then echoed the warning. Id.

After Baxter failed to appear, Officer Harris released

his K-9 partner, Iwo.1 Id.; Baxter Depo., PageID# 473,

1

Iwo is a malinois police dog that has been certified since

August 18, 2010. To become certified, Iwo and Officer Harris completed 584 hours of training that included training on criminal

apprehension. Thereafter, for five to ten hours each month, Iwo

and Officer Harris completed additional training. Iwo will only

respond to his handler and will not obey commands from any

4

RE 99-1. Iwo shadowed the path Baxter himself had

previously taken. (Baxter Depo., PageID# 473, RE 991.)

Baxter then saw the two officers come around the

water heater with Officer Harris eventually taking a

position in front of him with Officer Bracey behind

Baxter. Id. at PageID# 474-476.2 Iwo came up to Officer

Harris, who grabbed his chain while he reared up at

Baxter. Id. at PageID# 477. For the next few moments,

Officer Harris continued to shout at Baxter to put his

hands up. Id. at PageID# 478-479. Baxter does not recall Officer Bracey saying anything; but, believes that

Officer Bracey had a “sense” Officer Harris would let

the dog go. Id. at PageID# 480.

At no point did Officer Harris see that Baxter’s

hands were up and only seconds passed before Officer

Harris released Iwo. (Harris Dec. ¶ 13, PageID# 516,

RE 99-2; Baxter Depo., PageID# 479, RE 99-1.) Baxter

has never claimed that he told the officers that he intended to surrender or in any way communicated that

he was not a threat.

According to Baxter, Iwo lunged and bit him

multiple times under his left armpit. (Baxter Depo.,

PageID# 479, 482, RE 99-1.) Iwo is trained to bite once

then to maintain the bite until commanded to release.

Baxter’s medical records reflect that he only received a

other person, including another police officer. (Harris Dec. ¶ 4-5,

PageID# 517, RE 99-2.)

2

Respondents adopted Baxter’s facts as to what transpired

in the basement for purposes of summary judgment only.

5

single puncture wound, which is consistent with Iwo’s

training. (Nashville General Records, PageID# 519524, RE 99-3.)

Once Iwo apprehended Baxter, Officer Bracey

placed handcuffs on Baxter. (Baxter Depo., PageID#

488, RE 99-1.) Officer Harris reached in and pulled Iwo

off of Baxter. Id. at PageID# 484. Baxter cannot recall

if Officer Harris would have also given a verbal command to Iwo to release. Id. at PageID# 486. Additionally, Iwo is trained to only respond to his handler,

whether it be to release a bite or in any other scenario.

(Harris Dec. ¶ 6, PageID# 515, RE 99-2.)

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

I.

THIS CASE IS NOT THE APPROPRIATE

VEHICLE TO RE-CONSIDER QUALIFIED

IMMUNITY

A. Baxter exaggerates the conflict between

the Sixth Circuit’s Opinion at the Motion

to Dismiss stage compared to the Opinion at the Motion for Summary Judgment stage

Baxter devotes a substantial amount of briefing to

manufacturing a conflict between the Sixth Circuit’s

Opinion on Officer Bracey’s motion to dismiss and

the Opinion on Officer Harris’s motion for summary

6

judgement.3 This Court should not grant review on the

false premise that the doctrine of qualified immunity

is in such disarray that separate panels in a single case

are diametrically opposed. The Sixth Circuit Opinions

can be harmonized by identifying specifically what the

Court was deciding when. The appeal of the motion to

dismiss only concerned Officer Bracey’s conduct in the

context of a failure to intervene claim and only included the facts that Baxter chose to embrace in the

complaint. Then, after discovery, a more robust picture

developed, and both Officer Harris and Officer Bracey

asserted entitlement to qualified immunity in motions

for summary judgment. A “conflict” between the Sixth

Circuit’s two Opinions only exists if the procedural

posture of the two appeals and the facts developed during discovery are ignored. The harmony between the

two Opinions militates against review.

When Officer Bracey moved to dismiss the complaint, he asserted his entitlement to qualified immunity on the failure to intervene claim. Notably, the

question of the lawfulness of Officer Harris’s conduct

was not before the Sixth Circuit at the motion to dismiss stage.

Moreover, Baxter’s complaint painted the interaction between himself and the officers with broad

strokes. Only disclosing that “during the course of an

arrest he ran and hid in the basement of a house,”

3

As noted above, Officer Bracey also moved for summary

judgment. The Sixth Circuit held that qualified immunity protected Officer Bracey’s actions since it was not clearly established

that Officer Harris’s actions constituted excessive force.

7

before being confronted by Officers Harris and Bracey

while sitting with his hands in the air. Then, without

providing any context about the length of time that

had elapsed, the complaint alleged that Officer Harris

released his K-9 while Officer Bracey watched.

Based on these facts, the Sixth Circuit then inferred that “Bracey had the opportunity to intervene

given his proximity to Baxter, and the means to prevent the harm from occurring either by instructing

Harris not to release the animal or by restraining the

animal himself until Harris could command it to stop.”

Baxter, 2016 WL 11517046 (6th Cir. 2016). This critical

inference then permitted the Sixth Circuit to deny

qualified immunity because, based only on the narrow

facts Petitioner included in the complaint, it was

clearly established that Officer Bracey must do more

than watch a K-9 attack an individual who did not pose

a threat and was not attempting to resist or flee. Id.

“It is axiomatic that the standards for dismissing

a claim under FED. R. CIV. P. 12(b)(6) and granting

judgment under . . . FED. R. CIV. P. 56 are vastly different.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213

(3rd Cir. 2009). At that earlier stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for “objective legal reasonableness.” In

contrast, at summary judgment, the court looks to the

record as a whole instead of limiting its view to the

pleadings. Behrens v. Pelletier, 516 U.S. 299, 309 (1996).

It is the change in the scope of review, not confusion around qualified immunity, which compelled the

8

Sixth Circuit to reach a different conclusion in its later

Opinion than it did in its first. Because “[t]he facts revealed during discovery add much-needed color to this

case – as they often do.” Baxter v. Harris, 751 Fed. App’x

869, 872 (6th Cir. 2018). Understandably, the Petition

attempts to limit the additional facts by ignoring:

•

Baxter committed aggravated burglary, a

serious crime

•

Metropolitan Nashville Police Department responded with multiple police resources, including patrol cars, aviation

support, and the K-9 unit

•

Baxter acknowledged this overwhelming

show of force and believed “it looked

pretty bad”

•

Both Officer Bracey and Officer Harris

warned Baxter that if he did not surrender that a police dog would be released

•

Officer Harris and the K-9, Iwo, have

completed extensive training, received

the necessary certifications, and engage

in on-going training

•

Mere seconds elapsed between the Officers seeing Baxter and when Iwo was released

•

Baxter remained silent

All of the above changed the analysis. Plus, for the

first time, Officer Harris defended his conduct.

9

In the initial appeal, Officer Bracey did not address the legality of Officer Harris’s actions. In other

words, in the first appeal, both Officer Bracey and the

Sixth Circuit took it as a given that Officer Harris’s

conduct, as alleged, was unconstitutional. Once the

record developed, and the court had to analyze the issue, the additional facts removed Officer Harris’s conduct from the orbit of Campbell v. City of Springboro,

700 F.3d 779, 789 (6th Cir. 2012), where it resided, uncontested, based solely on the complaint, and placed it

in the hazy middle ground.4 Baxter, 751 Fed. App’x at

873.

While a number of facts remained consistent between the motion to dismiss and the motion for summary judgment stages of litigation, several new facts

developed that warranted attention, as noted above.

Instead of ignoring the development of new facts, the

Sixth Circuit properly included all facts in its analysis.

Ultimately, the Petition should be denied because any

conflict between the two Sixth Circuit Opinions is illusory.

4

Officer Harris maintains that his actions were constitutional. Given that the Sixth Circuit opinion did not address the

constitutional question, and the petition ignores it, the response

is likewise contained to the clearly established prong.

10

B. This case is not the appropriate vehicle

because this Court would be essentially

conducting a first review, not a final review.

This Court is not the forum for arguments to be

raised for the first time. While at first blush it may appear that if the Petition is granted this Court would be

conducting a “final review,” in actuality, it would be a

first review because Baxter has never before identified

any case that “clearly established” the rights he seeks

to vindicate. It is only at the eleventh hour that Baxter

identifies a case that purports to support his Petition.5

The Sixth Circuit, as do other circuits, places the

burden on the plaintiff to prove that a defendant is not

entitled to qualified immunity. Humphrey v. Mabry,

482 F.3d 840, 846 (6th Cir. 2007); accord Breen v. Texas

A & M Univ., 485 F.3d 325, 331 (5th Cir. 2007) (“When

a defendant invokes qualified immunity . . . the burden

shifts to the plaintiff to rebut the applicability of the

defense.”); Mannoia v. Farrow, 476 F.3d 453, 457 (7th

Cir. 2007) (“Although the privilege of qualified immunity is a defense, the plaintiff carries the burden of defeating it.”); Reeves v. Churchich, 484 F.3d 1244, 1250

(10th Cir. 2007) (“Once a defendant has raised qualified immunity as an affirmative defense, the plaintiff

bears the heavy two-part burden of demonstrating

that (1) the defendant violated a constitutional right

and (2) the constitutional right was clearly established

5

As explained below, even if those cases had been brought to

the attention of the Sixth Circuit, the outcome would be the same.

11

at the time of the alleged conduct.”); Andujar v. Rodriguez, 486 F.3d 1199, 1203, n.2 (11th Cir. 2007) (“When

it is undisputed . . . that government officials were acting within their discretionary authority, the burden is

on the plaintiff to establish that qualified immunity is

not appropriate.”).

Citing Pearson v. Callahan, 555 U.S. 731, 735

(2011), the Sixth Circuit skipped to the “clearly established” prong in this case because it lacked the benefit

of sophisticated briefing by both parties on the complex

constitutional question that Baxter’s claim presented.

Then, because Baxter had not pointed to “any case

law suggesting that raising his hands, on its own, is

enough to put Harris on notice that a K-9 apprehension was unlawful in these circumstances,” the Sixth

Circuit granted Officer Harris qualified immunity.

Baxter, 751 Fed. App’x at 872. Now, Baxter purports to

do just that. Officers Harris and Bracey are mindful

that Baxter proceeded pro se until the filings in this

Court. Nonetheless, the fact that this Court would be

called upon to do a “first review” instead of a final review counsels against granting review.

C. The facts presented lie in the blurred

middle ground between constitutional

and unconstitutional. Accordingly, the

Sixth Circuit correctly granted Officer

Harris qualified immunity.

Relying on this Court’s analysis and formulation

of the clearly established prong in District of Columbia

12

v. Wesby, 138 S. Ct. 577, 589 (2018), the Sixth Circuit

granted Officer Harris immunity. Review of the faithful application of this Court’s precedent is unnecessary

and the Petition should be denied.6

In Wesby, this Court reiterated “the precedent

must be clear enough that every reasonable official

would interpret it to establish the particular rule the

plaintiff seeks to apply.” Id. at 589. And that “the

‘clearly established’ standard also requires that the legal principle clearly prohibit the officer’s conduct in the

particular circumstances before him.” Id. at 590. Characterizing the analysis as “straightforward,” Justice

Thomas noted that “tellingly, neither the panel majority nor the partygoers have identified a single precedent – much less a controlling case or robust consensus

of cases – finding a Fourth Amendment violation under

similar circumstances.” Id. at 591.

Applying those principles here, the Sixth Circuit

looked for “a single precedent” that found a Fourth

Amendment violation under similar circumstances.

The case with the most similar facts, Robinette v.

Barnes, 854 F.2d 909, 913-14 (6th Cir. 1988), found

the conduct constitutional. There, an officer used a

6

The thrust of the petition is that the Sixth Circuit erred in

applying the settled rule of qualified immunity. As Justice Alito

and Thomas opined in denying review in Salazar-Limon v. City of

Houston, 137 S. Ct. 1277 (2017), this Court “rarely grant[s] review where the thrust of the claim is that a lower court simply

erred in applying a settled rule of law to the facts of a particular

case.”

13

well-trained K-9 to apprehend a fleeing suspect in a

dark and unfamiliar location.

The seminal case in the Sixth Circuit, Campbell,

which sets forth circumstances when use of a K-9 is

unconstitutional, is distinguishable in several material ways. There, the officer and his K-9 partner did not

conduct any follow-up training after their initial certifications. 700 F.3d at 783. Conversely, Officer Harris

and Iwo completed their initial training and all followup training, receiving satisfactory marks each time.

Additionally, in Campbell only two officers responded to a call about a possible domestic situation

because the plaintiff had been pounding on his girlfriend’s front door. Id. at 784. After hearing the sirens,

plaintiff fled to a nearby yard and lay on the ground.

Id. at 785. At the time the K-9 officers responded, there

was no reason to believe the plaintiff posed a threat.

Id. at 787. In contrast, in this case, the police response

to Baxter’s aggravated burglary was overwhelming,

with multiple police cars, aviation support, and the

K-9 unit. Despite this vast response, and knowing it

“looked pretty bad,” Baxter ran and broke into yet another home. He sought an advantageous position in a

darkened basement between a water heater and a

chimney, permitting Officer Harris to infer that Baxter

did not intend to surrender peacefully.

A final distinction is that the officer in Campbell

never gave a warning before initiating the track of the

plaintiff. Id. at 785. There, the K-9 found the plaintiff

lying face down with his arms to his side and bit his

14

left leg first, and then continued to bite different places

for 30 to 45 seconds. Id. at 785. Here, Baxter admits to

hearing the K-9 warning and remaining hidden. When

Officer Harris encountered Baxter, barely any time

passed before Officer Harris deployed Iwo. Baxter’s

testimony establishes that as soon as Iwo had control

of Baxter, Officer Bracey placed him in handcuffs, allowing Officer Harris to safely remove Iwo. Also, Iwo

did not continually attack Baxter; rather, he complied

with his extensive training and bit once and held Baxter to be secured.

Given the numerous factual distinctions between

Campbell and the case here, the Sixth Circuit correctly

refused to find that Campbell provided “fair notice” to

Officer Harris that his conduct violated the Fourth

Amendment. Baxter’s myopic focus on the position of

Baxter’s hands during the fleeting seconds between

when Officer Harris and Officer Bracey first encountered Baxter and the release of the police dog fails to

account for the constellation of circumstances that surround an officer’s use of force. Absent a case that accounts for those circumstances, this Court’s precedent

mandates that the balance tilt in Officer Harris’s favor.

Accordingly, review is not warranted because the Opinion below is correct and tracks this Court’s well-settled

precedents.

15

D. Even considering the cases that Baxter

cites to, Officer Harris would still be

entitled to qualified immunity.

The fact that the outcome in this case would be the

same even if the Sixth Circuit considered the cases relied upon by Baxter makes this case a poor vehicle for

resolving whatever confusion may exist surrounding

qualified immunity. See Stephen M. Shapiro, et al., Supreme Court Practice, Ch. 4.4(f ), p. 249 (10th ed. 2013)

(“If the resolution of a clear conflict is irrelevant to the

ultimate out-come of the case before the Court, certiorari may be denied.”).

Baxter cites Ortiz ex rel. Ortiz v. Kazimer, 811 F.3d

848, 852 (6th Cir. 2016) for the proposition that the

“gratuitous use of force against a suspect who has ‘surrendered’ is ‘excessive as a matter of law.’ ” Respondents do not disagree with that general principle. There,

the officers chased a teenager with Downs Syndrome,

wrongly believing him to be a criminal, then tore him

from his mother’s arms before slamming him against

a car, and pinning him there for over fifteen minutes.

Importantly, the officer admitted that he saw the plaintiff “surrendering.” The facts in Baker v. City of Hamilton, Ohio, 471 F.3d 601, 603 (6th Cir. 2006) are just as

egregious. In the first incident before the court, the officer, at best, had suspicion of a drug deal when the officer chased an individual who refused to stop when

asked. Once the officer caught up with the plaintiff, the

plaintiff stood up from the bushes with his arms

straight out. The officer whacked him twice with his

baton and commented “that’s for running from me.” Id.

16

at 603. In the second instance, the same officer chased

an individual suspected of being involved with car

break-ins. The officer yelled “Stop or I’ll shoot!” The individual complied with the officer’s instructions and

“screamed ‘I’m stopping, I’m stopping.’ ” Id. at 604. The

officer then used his baton to smack the back of the

individual’s head before tackling him and sitting on his

back. Id. at 604.

In contrast, here it is unclear based on the facts if

Officer Harris should have appreciated that Baxter

had “surrendered.” Baxter committed aggravated burglary and led a large police contingent on a chase.

Then, when offered multiple opportunities to actually

surrender, he remained hidden. Baxter’s unwillingness

to retreat from his defensive position, despite the overwhelming police presence, impacts how a reasonable

officer perceives his subsequent actions. In each of the

cases cited by Baxter, the plaintiff overtly communicated the intent to surrender and it could not reasonably be disputed that the officers had knowledge of that

intent. Here, when Officers Harris and Bracey approached Baxter, Officer Harris never saw Baxter’s

hands raised. He only used Iwo for his safety, and released him once Baxter no longer posed a risk to him

or Officer Bracey. Officer Harris never appreciated that

Baxter had “surrendered” in the mere seconds that

elapsed between approach and release of Iwo. See

Johnson v. Scott, 576 F.3d 658, 660 (7th Cir. 2009) (“no

law that we know of required Scott to take Johnson’s

apparent surrender at face value, a split second after

Johnson stopped running”); Crenshaw v. Lister, 556

17

F.3d 1283, 1293 (11th Cir. 2009) (“it was objectively

reasonable for Lister to question the sincerity of Crenshaw’s attempt to [surrender] and use the canine to

apprehend him. Lister was not required to risk his own

life by revealing his position in an unfamiliar wooded

area at night to an armed fugitive who, up to that

point, had shown anything but an intention of surrendering”); Ingram v. Pavlak, No. Civ. 03-2531, 2004 WL

1242761, at *5 (D.Minn. June 1, 2004) (officers reasonably could send a dog into a closet to flush out a suspect

because, although the suspect said he was surrendering, he continued to hide in the closet, and the officers

could not predict what he might do); McAllister v.

Dean, No. 4:13-CV-2492, 2015 WL 4647913, at *6 (E.D.

Mo. Aug. 5, 2015) (“defendants had no way of knowing

how plaintiff was going to behave and they were not

required to take his apparent surrender at face value,

especially with a gun in easy reach”); see also Mullins

v. Cyranek, 805 F.3d 760, 767 (6th Cir. 2015) (deadly

force justified after the suspect threw his gun away because the officer faced a rapidly escalating situation

and only five seconds elapsed between when the suspect threw his gun away and when he was shot).

This Court has previously granted officers qualified immunity in similar circumstances. For example,

in Mullenix v. Luna, 136 S. Ct. 305 (2015), the defendant officer, instead of using road spikes to apprehend a

fleeing felon, chose to shoot at a moving car to stop its

progress, ultimately shooting and killing the suspect.

Id. at 307. In upholding the denial of summary judgment, the Fifth Circuit agreed with the lower court

18

that there was a disputed fact about the immediacy of

the risk posed by the suspect. The Supreme Court rejected that finding and chastised the Fifth Circuit for

ignoring cases that supported the officer’s assessment

of the threat and relying on cases that were “too factually distinct to speak clearly to the specific circumstances.” Id. at 311-12. Like the officer in Mullenix,

Officer Harris is entitled to qualified immunity because Baxter ignores cases that support Officer Harris’s assessment of the threat and relies on cases that

are “too factually distinct to speak clearly to the specific circumstances.” Id. at 311-12. Thus, this case is a

poor vehicle for review because the outcome is the

same even under the cases submitted by Baxter.

II.

REVIEW IS NOT WARRANTED TO RE-EXAMINE THE DOCTRINE OF QUALIFIED

IMMUNITY

A. Baxter embellishes the struggle that the

lower courts have in defining clearly established law at the required level of

specificity.

The Petition seeks not just to overturn the Sixth

Circuit’s ruling in this case, but to eliminate the doctrine of qualified immunity altogether based on a perception that the lower courts are in chaos trying to

synthesize this Court’s precedent.7 As a threshold

7

One solution to solving any perceived chaos is requiring

that “clearly established law” only flow from this Court’s precedents. This Court has “not yet decided what precedents – other

than our own – qualify as controlling authority for purposes of

19

matter, for the last several years this Court’s Opinions

have left no question that clearly established law cannot be defined at a high level of generality. City of Escondido v. Emmons, 139 S. Ct. 500 (2019) (“the Court

of Appeals made no effort to explain how that case law

prohibited Officer Craig’s actions in this case. That is

a problem under our precedents.”); Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks omitted) (granting qualified immunity

when the most analogous circuit precedent favored the

officer and reiterating the specificity is especially important in the Fourth Amendment context); White v.

Pauly, 137 S.Ct. 548, 551 (2017) (per curiam); City and

County of San Francisco, Calif. v. Sheehan, 135 S. Ct.

1765, 1774, n.3 (2015) (collecting cases).

By highlighting cases across the force spectrum,

the Petition attempts to demonstrate hypothetical intra-circuit and circuit splits surrounding the clearly established inquiry. It is not surprising that by casting

such a wide net the Petition has dredged up supposed

conflicts.8 In the K-9 arena, there is no such chaos. The

qualified immunity.” Wesby, 138 S. Ct. at 591, n.4. If circuit courts

cannot form clearly established law, then the grant of qualified

immunity to Officer Harris and Officer Bracey stands because

this Court has never opined on a K-9 use of force.

8

It is worth noting that the disagreement among judges

about what is “clearly established” points towards strengthening

qualified immunity. Judges, who have the benefit of 20/20 hindsight and endless opportunities to consider alternatives, find

themselves grappling with constitutional parameters. Yet, this is

what we ask officers to do in rapidly evolving, split second moments with lives in danger.

20

Sixth Circuit’s analysis mirrors the analysis it previously used in deciding Campbell and the same framework embraced by the Eleventh Circuit.

In Campbell, the Sixth Circuit answered the question of whether or not the Fourth Amendment’s protections against excessive force, as related to police dogs,

was clearly established at the time the incidents in

question occurred. 700 F.3d at 788. In answering the

question, the Campbell panel, like the Sixth Circuit

likewise did in this case, found that Robinette set the

standard for when the use of a K-9 was reasonable.

Namely, that a K-9 could be deployed when suspects:

(1) were potentially dangerous based on the crimes

that they had committed; (2) behaved irrationally; and

(3) hid in spaces that left officers vulnerable to an ambush. Additionally, a properly trained K-9 must be utlized and an officer should issue warnings prior to

releasing the dog for a K-9 apprehension to be a reasonable use of force. Id. at 789. At that time, White v.

Harmon, 65 F.3d 169 (6th Cir. 1995) established the

opposite end of the scale when an officer allowed an untrained K-9, with a history of biting, to bite a handcuffed suspect. Finding that the facts of Campbell

closely aligned with White because the officer allowed

an inadequately trained K-9 with no warning to bite

suspects who were not fleeing, the Sixth Circuit denied

qualified immunity.

Following the Campbell Court’s lead, the Sixth

Circuit below engaged in the same review of the

21

applicable cases.9 Based on their review, the parameters for constitutional conduct existed between the

facts in Campbell and the facts in Robinette. The Sixth

Circuit noted that “[l]ike the suspect in Robinette, Baxter fled the police after committing a serious crime and

hid in an unfamiliar location.” He also ignored multiple warnings that a canine would be released, choosing

to remain silent as he hid. Baxter, 751 Fed. App’x at

872. Likewise, the K-9 used had been well trained. The

Court acknowledged that the “fit” with Robinette was

not perfect but, given that most of the facts aligned

with Robinette and not with Campbell, the Sixth Circuit granted qualified immunity.

The Eleventh Circuit has employed the same analytical technique in determining entitlement to qualified immunity in the K-9 context. Similar to the Sixth

Circuit, under Eleventh Circuit precedent, on one end

of the spectrum are cases where the crime at issue was

minor, none of the circumstances indicated that the

plaintiff was armed or posed an immediate threat, the

plaintiff immediately submitted to the officers, and the

plaintiff suffered over a dozen puncture wounds. Jones

v. Fransen, 857 F.3d 843, 853 (11th Cir. 2017), citing

Priester v. City of Riviera Beach, 208 F.3d 919, 926

(11th Cir. 2000). On the opposite end are cases where

the crime is serious – such as armed robbery – and the

9

The Petition seems to suggest that using the same analysis

should produce the same result time after time. Material factual

distinctions matter in this realm. Recognizing those distinctions

does not create chaos. Asking this Court to remove a wellestablished doctrine without proposing any vetted solution, however, would create chaos.

22

plaintiff violently flees the police and hides in a darkened area that is susceptible to ambush. Id. at 853-54,

citing Crenshaw, 556 F.3d 1283. Where the use of the

K-9 did not fall squarely at either end of the spectrum,

the Eleventh Circuit granted qualified immunity.

Jones, 857 F.3d 843. In granting qualified immunity to

the officer in Jones, the Court noted that:

Jones’s case is not directly on all fours with

either Priester or Crenshaw. As a result, neither case alone could have provided Defendants Officers the type of fair notice necessary

to breach qualified immunity. And considering

the cases together helps no more since

Priester and Crenshaw reached opposite conclusions concerning whether an excessive

force violation occurred.

Id. at 854.

As Campbell, Jones, and Baxter illustrate, courts

are not in a perpetual state of confusion about their

mandate in determining whether the law is clearly established. Rather, these cases demonstrate that the

lower courts have taken this Court’s admonishment to

not define clearly established law at the highest generalized level quite seriously. The Sixth Circuit’s faithful

application of the qualified immunity doctrine in its

Opinion here makes this case a poor vehicle for this

Court’s review. Accordingly, Baxter’s Petition should be

denied.

23

B. Qualified immunity exists to protect

split second decisions, such as the one

made in this case.

Ultimately, the Petition asks this Court to embrace chaos to the detriment of law enforcement at

every level: local, state, and federal. Adopting a

scorched earth approach, the Petition attacks the very

reasoning underpinning qualified immunity. At least

one scholar has provided some pushback. In “A Qualified Defense of Qualified Immunity,” the authors posit

that qualified immunity is supported by stare decisis

and that the arguments posed by the Petition and

amici about qualified immunity’s historical underpinnings – or lack thereof – are not as comprehensive as

suggested. 93 Notre Dame L. Rev. 1853, 1864 (2018)

(“The truth is that the history is murky, which, under

the law of precedent, counsels in favor of the status

quo.”)

Moreover, the article referenced above raises the

thorny issue of Bivens liability. Qualified immunity

protects federal officials as well as municipal officials.

And this Court treats qualified immunity under Bivens

and 42 U.S.C. § 1983 (“Section 1983”) interchangeably.

Abolishing qualified immunity based on the text of

Section 1983 while preserving it under Bivens would

lead to the absurd result of treating constitutional violations – even liability for the very same actions perhaps – differently depending on which governmental

entity employs an officer.

24

While analyzing an array of issues and arguments

to the contrary, the article ultimately concludes that

the arguments swirling around qualified immunity are

not sufficient to warrant reconsideration of the doctrine. Id. at 1885. Moreover, whatever grounds could be

advanced for re-examining the reasoning behind the

qualified immunity doctrine, this is not the case to

undo decades of this Court’s jurisprudence on which

these Officers have relied.

Both Officer Harris and Officer Bracey face the

very real possibility of personal liability. The Metropolitan Government of Nashville and Davidson County

Code does not guarantee indemnification. Nashville,

Tenn., Municipal Code § 2.40.140 (2019). Instead, it requires officers to endure the litigation process and an

unfavorable judgment before the government will

make any decision about indemnity. Id. That decision

is at the sole discretion of the government. Id. Even

then, for judgments indemnity is capped at $50,000.

As a consequence, these officers have lived the last

four years under a cloud of uncertainty about their professional and financial futures.10 See, e.g., Anthony P.

10

A particularly heavy burden given that Baxter has wholly

fabricated the facts about what occurred in the basement the

night of his arrest. In reality, after police shouted two K-9 warnings, Iwo was released into the basement. Iwo found Baxter first,

before Officer Harris ever had a visual on him. Once Iwo apprehended Baxter, Officer Harris asked Baxter to raise his hands in

the air. Upon compliance, Officer Harris commanded Iwo to release, which he did. Officer Bracey then entered the basement

to assist Officer Harris in searching Baxter. Officer Harris never

approached Baxter with Iwo “rearing up and snapping.” And Officer Bracey did not enter the basement until after Iwo had

25

Chiarlitti, Civil Liability and the Response of Police Officers: The Effect of Lawsuits on Police Discretionary

Actions, Education Doctoral, Paper 262, St. John

Fisher College, pg. 97 (2016)11 (finding support for the

idea that police officers are concerned about lawsuits

and engage in depolicing, at least to some extent, as it

concerns civil liability.)

At its heart, qualified immunity protects police officers’ split second decisions. “[P]olice officers are often

forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving

– about the amount of force that is necessary in a particular situation,” courts must afford them a measure

of deference in their on-the-scene assessments about

the application of force to subdue a fleeing or resisting

suspect. Saucier v. Katz, 533 U.S. 194, 205 (2001) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

The fleeting moments that officers have to react

means that “reasonable people sometimes make mistaken judgments, and a reasonable officer sometimes

may use unreasonable force. In that event, qualified

immunity gives an officer the benefit of a margin of error.” See Saucier, 533 U.S. at 205-06 (explaining that

released and Baxter had been handcuffed. While Officers Harris

and Bracey recognize that they were required to accept Baxter’s

“facts” for purposes of summary judgment, Baxter’s lies about

what actually happened further illustrate why his Petition should

not be granted. The Court should not undertake possible sweeping reform of the entire doctrine of qualified immunity based on a

tall tale spun by a litigant.

11

Available at https://fisherpub.sjfc.edu/education_etd/262/.

26

qualified immunity operates in excessive force cases to

protect officers from the sometimes hazy border between excessive and acceptable force (internal quotation marks omitted)); Jennings v. Jones, 499 F.3d 2, 18

(1st Cir. 2007) (observing that, in effect, “officers receive protection if they acted reasonably in exercising

unreasonable force.”).

In other words, qualified immunity exists because

“it is inevitable that law enforcement officials will

in some cases reasonably but mistakenly” believe

that their actions are legally justified. Anderson v.

Creighton, 483 U.S. 635, 641 (1987).

That is exactly the situation presented here. Unsure of who he was confronting, Officer Harris deployed his K-9. His use of the K-9 was not gratuitous.

Rather, in those heartbeats between being in Baxter’s

proximity and the release of Iwo, he made a choice to

engage in conduct that he believed was lawful, even if

in 20/20 hindsight reasonable minds could determine

that he made the wrong choice. Qualified immunity exists to protect decisions that are unclear in the heat of

the moment. Reconsideration of the entire doctrine is

not warranted when the grant of qualified immunity to

Officer Harris demonstrates why it exists.

------------------------------------------------------------------

CONCLUSION

The Sixth Circuit’s faithful application of this

Court’s qualified immunity jurisprudence does not

warrant review. Baxter has failed to demonstrate that

27

any prior precedent of this Court, or the Sixth Circuit,

placed the constitutional question beyond debate. Instead, Officer Harris’s conduct occupied the middle

ground between two competing precedents at either

end of the force spectrum. Moreover, an across-theboard inquiry into qualified immunity is not warranted

based on embellished claims of confusion. The grant of

qualified immunity, here, served one of its fundamental purposes, of protecting officers’ split second decisions. Accordingly, Officers Harris and Bracey request

that this Court deny Baxter’s Petition for Writ of Certiorari.

Respectfully submitted,

KELI J. OLIVER

MELISSA S. ROBERGE*

DEPARTMENT OF LAW FOR THE

METROPOLITAN GOVERNMENT

OF NASHVILLE AND DAVIDSON

COUNTY, TENNESSEE

P.O. Box 196300

Nashville, TN 37219

Telephone: (615) 862-6341

Facsimile: (615) 862-6352

keli.oliver@nashville.gov

melissa.roberge@nashville.gov

Counsel for Respondents

*Counsel of Record