Opposition Brief — June Harper, Petitioner v. Arthur Leahy, et al.

Supreme Court briefNov 30, 2018

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No. 18-339

IN THE

Supreme Court of the United States

JUNE HARPER,

Petitioner,

ARTHUR LEAHY, DANIEL KIRK, CHRISTOPHER TEHAN

CHING NIEH, and CITY OF NEW YORK,

_________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

ZACHARY W. CARTER

Corporation Counsel of the

City of New York

100 Church Street

New York, NY 10007

(212) 356-2500

rdearing@law.nyc.gov

RICHARD DEARING*

JANE L. GORDON

ELIZABETH I. FREEDMAN

*Counsel of Record

November 30, 2018

Counsel for Respondents

COUNTERSTATEMENT OF

QUESTION PRESENTED

Whether the holding in Payton v. New York, 445

U.S. 573, 603 (1980), that officers may enter a

suspect’s residence to execute an arrest warrant

when they have “reason to believe the suspect is

within” requires probable cause to believe that the

suspect is inside.

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION

PRESENTED ............................................................ i

TABLE OF CONTENTS .......................................... ii

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

INTRODUCTION..................................................... 1

STATEMENT ........................................................... 3

REASONS FOR DENYING THE PETITION ......... 6

A. The question presented is unpreserved. ....... 7

B. The question presented is academic here. .... 8

C. The split of authority is exceedingly

narrow, and the Second Circuit is on the

correct side of it in any case. ....................... 14

CONCLUSION ....................................................... 18

TABLE OF AUTHORITIES

Page(s)

Cases

Barrera v. United States,

550 U.S. 937 (2007) ............................................. 7

District of Columbia v. Wesby,

___ U.S. ___, 138 S. Ct. 577 (2018) ................... 10

Illinois v. Gates,

462 U.S. 213 (1983) ..................................... 10, 13

Payton v. New York,

445 U.S. 573 (1980) ................................... passim

Pennsylvania Department of Corrections v.

Yeskey,

524 U.S. 206 (1998) ............................................. 7

Pruitt v. United States,

549 U.S. 1283 (2007) ........................................... 7

Steagald v. United States,

451 U.S. 204 (1981) ..................................... 10, 16

Texas v. Brown,

460 U.S. 730 (1983) ........................................... 13

Thornton v. United States,

541 U.S. 615 (2004) ............................................. 7

iii

Tiewloh v. United States,

559 U.S. 941 (2010) ............................................. 7

United States v. Barrera,

464 F.3d 496 (5th Cir. 2006),

cert. den., 550 U.S. 937 (2007) ......................... 14

United States v. Bohannon,

824 F.3d 242 (2d Cir. 2016),

cert. den., ___ U.S. ___,

137 S. Ct. 628 (2017) ................... 1, 2, 6, 7, 10, 17

United States v. Denson,

775 F.3d 1214 (10th Cir. 2014),

cert. den., ___ U.S. ___,

135 S. Ct. 2064 (2015) ................................. 13, 15

United States v. Exum,

657 Fed. App’x 153 (4th Cir. 2016)................... 15

United States v. Hardin,

539 F.3d 404 (6th Cir. 2008) ............................. 15

United States v. Hill,

649 F.3d 258 (4th Cir. 2011) ............................. 15

United States v. Jackson,

576 F.3d 465 (7th Cir.),

cert. den., 58 U.S. 1062 (2009) ................ 9, 10, 15

United States v. Magluta,

44 F.3d 1530 (11th Cir.),

cert. den., 516 U.S. 869 (1995) .............. 12, 14, 15

United States v. Pruitt,

458 F.3d 477 (6th Cir. 2006),

cert. den., 549 U.S. 1283 (2007) ........................ 15

United States v. Vasquez-Algarin,

821 F.3d 467 (3d Cir. 2016) ............................... 11

United States v. Veal,

453 F.3d 164 (3d Cir. 2006) ............................... 12

Weeks v. United States,

566 U.S. 924 (2012) ............................................. 6

White v. Pauly,

___ U.S. ___, 137 S. Ct. 548 (2017) ..................... 9

Statute

42 U.S.C. § 1983 ............................................ 1, 2, 5, 8

Other Authority

Nate Silver, Which Cities Sleep In, And

Which Get to Work Early, Apr. 24,

2014,

https://fivethirtyeight.com/features/

which-cities-sleep-in-and-which-get-towork-early (visited November 30, 2018)........... 12

INTRODUCTION

Petitioner June Harper asserts claims under 42

U.S.C. § 1983 stemming from her arrest after she

forcibly tried to block NYPD officers from entering

her Brooklyn apartment in the course of executing

an active bench warrant for her son, Kedar Harper,

who also lived there.

In Payton v. New York, 445 U.S. 573 (1980), the

Court ruled that an arrest warrant naming an

individual that is founded on probable cause

implicitly includes the authority to enter a home

where a suspect lives when there is “reason to

believe” that the suspect is home. The Second

Circuit has held that this test does not demand

probable cause, but requires “specific and

articulable facts that, taken together with rational

inferences

drawn

therefrom,

provided

particularized and objective basis for thinking that

the arrest-warrant subject may be present.” United

States v. Bohannon, 824 F.3d 242, 255 (2d Cir.

2016).

Posing a question that she never presented to

the lower courts, petitioner now asks the Court to

review whether Payton’s “reason to believe”

standard requires a showing equivalent to probable

cause. Certiorari should be denied for the following

reasons.

First, the question that petitioner seeks to

present is unpreserved, because she never raised it

in either of the lower courts.

Second, the question presented is academic in

this case. Qualified immunity would defeat the

§ 1983 claims against the arresting officers,

regardless of how the question were resolved, since

that resolution would not constitute clearly

established law at the pertinent time. And even

setting that aside, the Court’s resolution of the

question still would not affect the outcome of the

case, because the facts would support a finding of

probable cause if that were the correct standard.

Third, even if the question presented were

preserved and relevant to the case’s outcome, there

would be no reason to grant review. While

authorities are divided on the question, the

disagreement is largely theoretical, with little

apparent impact on outcomes. Thus, the Court has

consistently denied petitions for certiorari on the

issue, most recently in Bohannon, 824 F.3d 242,

cert. den., ___ U.S. ___, 137 S. Ct. 628 (2017). And

in any event, the court of appeals below is on the

correct side of the split: “reason to believe” review

does not demand probable cause, so the court

applied the proper legal standard here.

STATEMENT

1. This case involves the respondent police

detectives’ execution of a bench warrant for Kedar

Harper, a male in his mid-twenties, at his

residence at 910 Caton Avenue, Apartment 52, in

Brooklyn, New York, at 7 am on Tuesday, July 28,

2015. Petitioner June Harper, who is Kedar’s

mother, acknowledges that the apartment has been

his only residence since moving to the United

States from Trinidad as a child, except for periods

when he has been incarcerated (A98-101). 1

An NYPD detective investigating a burglary in

which Kedar Harper was a suspect had located the

bench warrant from late 2014, which was issued as

a result of Kedar’s failure to appear on a disorderly

conduct charge (A83, 209). The warrant listed 910

Caton Avenue as Kedar’s residence (A84, 209, 216).

The officer found three additional sources in police

records confirming that address for Kedar and

further specifying his residence as Apartment 52 in

that building. An extensive database search turned

up no other address for Kedar, save for a 2009

document reflecting that he was briefly associated

with a nearby address on Caton Avenue (A210-11).

1 “A” refers to the Appendix that petitioner filed with the

Second Circuit.

After knocking on the door of 910 Caton Avenue,

Apartment 52, to execute the warrant, a detective

heard a male voice inside the apartment (A211).

The detective and his partner knocked a second

time (id.). Petitioner opened the door, admitted

that Kedar was her son, and claimed he “wasn’t

home” (A86, 111, 115, 212; Pet. 4).

Petitioner then asked if she could retrieve her

eyeglasses to review the warrant and closed the

apartment door for several minutes (A86, 112-14,

212). After reopening the door, petitioner told

Leahy and Kirk that they would need a search

warrant if they wanted to enter the apartment to

look for Kedar, and she then repeatedly tried to

physically block the officers from entering (A86,

112-16, 120-27, 212). The detectives eventually

subdued and handcuffed petitioner (A213).

Thereafter, they entered the apartment but did not

find Kedar (A192-95, 200-05).

One detective testified that once he was able to

enter the apartment, petitioner’s husband, as well

as another person, told him that Kedar had escaped

through the apartment window (A194-95, 205). And

while petitioner claims that Kedar had left the

apartment the night before and was not expected to

return until later in the day, she admits that his

then-four-year-old daughter, who lived in the

Bronx, was at the Brooklyn apartment visiting him

when the detectives arrived (A103-05).

Following her arrest for obstruction of

governmental administration and other charges,

petitioner was acquitted at a bench trial (A88-89,

167-80, 213, 220-26).

2. Petitioner then commenced this civil action.

The district court granted summary judgment to

defendants on all of petitioner’s § 1983 claims, as

well as her state-law claims for false arrest and

false imprisonment, and declined to retain

jurisdiction over her remaining state-law claims

(Pet. App. 6a-19a).

In opposing the motion, petitioner accepted the

Second Circuit’s view that Payton’s “reason to

believe” standard did not require probable cause to

believe that the dwelling was the suspect’s

residence and that the suspect was therein (Pet.

App. 9a-14a; A248-52). She neither argued nor

purported to reserve any argument that the

standard required a showing of probable cause.

On the Payton issue, the district court concluded

that no reasonable jury could find that the officers

lacked a reasonable belief that Harper lived in the

apartment and was there at 7 am on the Tuesday

morning in question, because the officers had

“plenty of corroborative evidence” (Pet. App. 9a,

12a).

3. The United States Court of Appeals for the

Second Circuit affirmed. In her appeal, petitioner

again did not argue that Payton’s “reason to

believe” standard required a showing of probable

cause or purport to reserve that question for

further review. (Pet'r's 2d Cir. Br. 15-42).

By summary order, the court of appeals

affirmed the district court’s judgment, concluding

that the undisputed facts, when viewed in their

totality and in a commonsense manner, provided

the officers with “ample reason to believe” that

Kedar would be present at the apartment at the

time of the attempted arrest (Pet. App. 1a-5a). The

court pointed to multiple factors supporting the

officers’ reasonable belief: the bench warrant and

three additional police department records that all

consistently identified the apartment as Harper’s

residence; the search of eight computerized

databases that uncovered no other address for

Harper; petitioner’s acknowledgement to detectives

after opening the apartment door that she was

Harper’s mother; and the early morning timing of

the warrant’s execution (Pet. App. 3a-4a).

REASONS FOR DENYING THE PETITION

The petition should be denied on the threshold

grounds that the question presented is neither

preserved nor outcome-determinative in this case.

Even beyond those points, the case presents no

cert-worthy question. The longstanding split in

authority outlined by petitioner is exceedingly

narrow in practice, and the Court has repeatedly

denied certiorari on the same issue. See United

States v. Bohannon, 137 S. Ct. 628 (2017); see also

Weeks v. United States, 566 U.S. 924 (2012);

Tiewloh v. United States, 559 U.S. 941 (2010);

Barrera v. United States, 550 U.S. 937 (2007);

Pruitt v. United States, 549 U.S. 1283 (2007). In

any event, the Second Circuit is on the correct side

of the split.

A. The question presented is unpreserved.

This first reason why the Court should deny

review is that petitioner failed to raise in either

lower court the issue that she now asks this Court

to review. She never argued that Payton’s “reason

to believe” language demands probable cause,

never suggested that the Second Circuit’s contrary

holdings were incorrect, and never urged that the

detectives’ actions must be measured against a

standard of probable cause. Quite the opposite:

petitioner affirmatively relied on Second Circuit

precedent without ever disputing its correctness or

reserving any question about it for further review

(Pet’r’s 2d Cir. Br. 15-42).

“Where issues are neither raised before nor

considered by the Court of Appeals, this Court will

not ordinarily consider them.” Thornton v. United

States, 541 U.S. 615, 624 n.4 (2004) (citations

omitted). By failing to challenge the lower courts’

interpretation and application of Payton’s “reason

to believe” standard, petitioner has forfeited that

argument, and this Court should decline to review

the issue for that reason. See also Pennsylvania

Department of Corrections v. Yeskey, 524 U.S. 206,

212-13 (1998); United States v. Bohannon, 824 F.3d

at 254 (noting that plaintiff waived the issue

whether the “reason to believe” standard demanded

probable cause by failing to raise it).

B. The question presented is academic here.

Were the proposed question preserved, it would

nonetheless be academic in this case for two

reasons. First, even assuming that the question

would be resolved in favor of requiring probable

cause, the respondent detectives would plainly be

entitled to qualified immunity against Harper’s

§ 1983 claim. 2 Harper acknowledges that the claim

from her amended complaint that is relevant to her

petition is the one alleging that “the individual

respondents violated her Fourth Amendment

rights” by forcibly entering the apartment and then

arresting her. 3 And the petition does not contest

Unlike the question petitioner proposes to raise, the

qualified immunity defense is preserved (A48, 76-79; Resp.’s

2d Cir. Br. 17-18). It admittedly was not a focus of prior

proceedings, largely because petitioner never previously

contested the legal standard governing the Payton issue.

3 The petition appropriately does not rely on the Monell claim

against the City included in Harper’s amended complaint.

Harper’s Monell allegations were wholly conclusory (A22-23,

81-82), and she declined to respond to defendants’ Monell

arguments in her opposition to summary judgment (A254

n.11). The petition also concedes (at 7 n.3) that the state-law

claims resolved against Harper “are not implicated here.”

the Second Circuit’s application of its own prior

precedent in determining that the respondent

detectives had a sufficient basis to enter the

apartment to look for Kedar. A decision from this

Court resolving the split in authority now would

have no bearing on qualified immunity, since it

would not represent clearly established law as of

the time of the detectives’ actions. See, e.g., White v.

Pauly, ___ U.S. ___, 137 S. Ct. 548, 551-52 (2017).

Second, even ignoring qualified immunity, the

proposed question would not be outcomedeterminative, because the detectives had probable

cause to conclude that Kedar was present in his

residence here, if that were required. While the

petition asserts that “there is … no doubt” that the

outcome here would be different in a court

following a probable-cause rule (Pet. 20), it offers

scant analysis to support that claim.

Indeed, it points to only one case—United States

v. Jackson, 576 F.3d 465 (7th Cir.), cert. den., 558

U.S. 1062 (2009) (Pet. 20). While the facts of this

case differ from those in Jackson, where officers

received an anonymous tip and then an admission

from the suspect’s girlfriend that he was inside an

acquaintance’s dwelling, that does not mean that

probable cause is lacking here. In Jackson, the

arrestee was apprehended in a third party’s home,

not his own residence. And the Seventh Circuit

held that the facts were “more than enough” and

“easily satisf[ied] probable cause,” id. at 469; it did

not suggest that anything less would be

insufficient, particularly where a warrant is

executed at the arrestee’s own place of residence. 4

This Court recently reiterated that probable

cause “is not a high bar.” District of Columbia v

Wesby, ___ U.S. ___ , ___, 138 S. Ct. 577, 586 (2018)

(quotation marks omitted). It is “a fluid concept—

turning on the assessment of probabilities in

particular factual contexts—not readily, or even

usefully, reduced to a neat set of legal rules.”

Illinois v Gates, 462 U.S. 213, 232 (1983). And it

requires consideration of the facts in their totality,

not in isolation. Wesby, 138 S. Ct. at 586, 588.

4 In Jackson, the Seventh Circuit held, as have several other

courts of appeals, that the Payton test governs an unlawful

entry challenge brought by the subject of an arrest warrant,

even where the subject is apprehended while visiting a thirdparty’s residence, on the theory that the Constitution should

not afford one greater protection in another’s home than in

one’s own. 576 F.3d at 468 (collecting cases); see also

Bohannon, 824 F.3d at 249-53. Those courts have thus

reserved the requirement of a search warrant set forth in

Steagald v. United States, 451 U.S. 204 (1981), for

circumstances where suppression is sought by the third-party

resident. In cases involving an arrest-warrant subject

apprehended in a third-party’s residence, Payton may

generally require more or different proof targeted at showing

the subject’s presence within, because the strong commonsense expectation that persons will be at their usual

residence, particularly at certain times of day, is not in play.

Harper wrongly downplays the strength of the

facts here when measured against this standard.

The detectives’ information consistently pointed to

the Caton Avenue apartment as Kedar’s sole

residence, and they received further confirmation

when Kedar’s mother opened the apartment door

and referred to the apartment as his “home.”

Indeed, Harper does not appear to contest that the

detectives had adequate basis to conclude that the

Caton Avenue apartment was Kedar’s residence,

even under a probable cause standard. But she fails

to recognize the significance of that showing for the

second prong of the Payton test—asking whether

officers had a sufficient basis to believe the subject

was present at the time of the warrant’s execution.

As the Third Circuit, a court on the probable-cause

side of the split, has noted: “[O]nce the predicate of

residency is established, that alone carries

significant weight in establishing probable cause to

believe the arrestee is present, necessarily reducing

the quantum of proof needed to meet Payton’s

second prong in the totality of the circumstances

analysis.” United States v. Vasquez-Algarin, 821

F.3d 467, 481 (3d Cir. 2016).

Much of the remaining required support is

supplied by the common-sense reality that people

are ordinarily at their homes very early on

weekday mornings—the detectives here executed

the warrant at 7 am on a Tuesday. 5 “Officers may

presume that a person is at home at certain times

of the day—a presumption which can be rebutted

by contrary evidence regarding the suspect’s known

schedule.” United States v. Magluta, 44 F.3d 1530,

1535 (11th Cir.), cert. den., 516 U.S. 869 (1995);

accord United States v. Veal, 453 F.3d 164, 168 (3d

Cir. 2006). Harper submitted no such contrary

evidence here. Indeed, she herself claimed that

everyone in the apartment, except her teenage

daughter, was still sleeping when the detectives

arrived (A102, 106-08).

Add to the early morning hour that a detective

reported hearing a male voice coming from inside

the apartment after the detectives’ first knocks on

the door, and that petitioner closed the door and

5 The New York metropolitan area has the latest median time

for work arrival in the nation—8:24 am. See Nate Silver,

Which Cities Sleep In, And Which Get To Work Early, Apr. 24,

2014, https://fivethirtyeight.com/features/which-cities-sleepin-and-which-get-to-work-early (visited November 30, 2018).

appeared to stall for several minutes following

presentation of the bench warrant when she

eventually spoke to the detectives after their

second knocks, and the totality of the

circumstances established a “fair probability” that

Kedar was present within the apartment when the

warrant was executed. And that is what probable

cause requires—a “fair probability,” not certainty

or even a preponderance of the evidence. Gates, 462

U.S. at 238; see also id. at 235. 6

Thus, applying

a probable-cause standard

would make no difference to the bottom-line

conclusion whether a constitutional violation

occurred. Nor, even more clearly, would announcing

a probable-cause standard now defeat the

respondent detectives’ entitlement to qualified

immunity in this civil action for actions occurring

in 2015. These are especially strong reasons to

deny review, given that petitioner asserts that the

question presented “arises with tremendous

frequency,” and often “in criminal … cases” (Pet. 2),

where qualified immunity is not implicated. The

The petition mistakenly assumes that a probable cause

standard would require a showing that Kedar was “probably”

in the apartment (Pet. 20). See United States v. Denson, 775

F.3d 1214, 1217 (10th Cir. 2014), cert. den., ___ U.S. ___, 135

S. Ct. 2064 (2015) (“Probable cause doesn’t require proof that

something is more likely true than false.”); accord Texas v.

Brown, 460 U.S. 730, 742 (1983) (plurality op.). But if that

were the standard, it too would be met here.

Court will surely have other opportunities to grant

review on this issue if it is deemed worthy of

certiorari.

C. The split of authority is exceedingly

narrow, and the Second Circuit is on the

correct side of it in any case.

The petition not only fails to address the lack of

preservation or show that question presented is

material in this case, but also fails to demonstrate

that the question would be worthy of the Court’s

review even if those deficiencies were absent.

While there is a split in authority on the

question whether Payton’s “reason to believe”

language should be taken at face value or

translated to mean probable cause, the division is

quite narrow and appears to have little practical

significance. Both standards rely on the totality of

the circumstances and inferences rooted in common

sense, see Magluta, 44 F.3d at 1535, and neither is

readily reducible to a fixed formula. The differences

between the two are thus elusive in practice.

Indeed, a striking number of the cases

petitioner cites have made a version of the same

point. The most direct have been the Fifth Circuit,

labeling the disagreement “more about semantics

than substance,” United States v. Barrera, 464 F.3d

496, 501 (5th Cir. 2006), cert. den., 550 U.S. 937

(2007), and the Eleventh, noting that it is “difficult

… to compare the quantum of proof the [‘reason to

believe’] standard requires with the proof that

probable cause requires,” Magluta, 44 F.3d at 1535.

Several other courts have observed that the

answer to the question made no difference on the

facts before them. Denson, 775 F.3d at 1217

(“nothing turns on” answer); United States v.

Exum, 657 Fed. App’x 153, 155 (4th Cir. 2016)

(affirming

denial

suppression

motion

“[a]ssuming, without deciding, that probable cause

is required”); United States v Hill, 649 F.3d 258,

263 (4th Cir. 2011) (“declin[ing] to reach a

conclusion” because the proof was insufficient

under either standard); compare United States v.

Pruitt, 458 F.3d 477, 482 (6th Cir. 2006), cert. den.,

549 U.S. 1283 (2007) (rejecting probable cause

standard), with id. at 489-91 (Clay, J., concurring)

(opining that probable cause should be standard,

but agreeing with outcome); United States v.

Hardin, 539 F.3d 404, 416 (6th Cir. 2008) (“[T]his

case, too, does not require that we adopt one

standard or the other.”); Jackson, 576 F.3d at 469

(“[W]e need not decide whether ‘reasonable belief’

requires probable cause or something less than

probable cause.”).

Against this steady record of courts affirming

the question’s lack of practical significance,

petitioners offer no specific example where the

opposite was true. And while petitioner’s amici

assert that the issue arises with some regularity,

they too fail to show that its resolution frequently

carries practical significance, resorting to mere

speculation on the point. Br. for Amici Curiae N.Y.

State Ass’n of Criminal Defense Lawyers et al., at

3-4, 7-8. 7

The Second Circuit also has the better of the

argument, however slim its import. In Payton, the

Court held that the Fourth Amendment permits

officers who possess a valid arrest warrant “to

enter a dwelling in which the suspect lives when

there is reason to believe the suspect is within.” 445

U.S. at 603 (emphasis added). The Court

presumably would have used the common phrase

“probable cause” if it had intended to impose that

standard. And in reaching its holding, the Payton

Court expressly rejected the precept that officers

must have “a search warrant based on probable

cause to believe the suspect is at home at a given

time.” Id. at 602. The Court reasoned that “[i]f

there is sufficient evidence of a citizen’s

participation in a felony to persuade a judicial

officer that his arrest is justified, it is

constitutionally reasonable to require him to open

his doors to the officers of the law.” Id. at 602-03.

7 Nor does amici’s stated concern about third parties provide

a reason to grant review (see Br. at 2-4, 8-11, 14), because

those parties’ rights are already protected by the rule in

Steagald v. United States, 451 U.S. 204, 205-06, 221-22

(1981), that officers must have a search warrant to enter

third-party residences to execute an arrest warrant.

The Second Circuit has rightly held that

Payton’s “reason to believe” standard does not

demand probable cause, but does require “specific

and articulable facts that, taken together with

rational inferences drawn therefrom, provided a

particularized and objective basis for thinking that

the arrest-warrant subject may be present within

specific premises.” Bohannon, 824 F.3d at 255.

Thus, even if the question were preserved, if it were

material here, and if it had been shown to have any

broader practical significance, there would be no

reason to grant review because the Second Circuit

has answered it correctly.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,