Petition for Writ of Certiorari — Gregory Clark, Petitioner v. Austin Clark

No. _________________

IN THE

_______

GREGORY CLARK,

PETITIONER,

v.

AUSTIN CLARK, DEPUTY,

in his individual capacity only,

RESPONDENT.

_______

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______

PETITION FOR A WRIT OF CERTIORARI

_______

W. Bevis Schock

Counsel of Record

7777 Bonhomme Avenue

Ste. 1300

St. Louis, MO 63105

314-726-2322

wbschock@schocklaw.com

QUESTIONS PRESENTED FOR REVIEW

1.

During a voluntary interaction in which the

subject hands a police officer his ID, if the

officer runs the subject is it an unconstitutional

seizure?

2.

During a voluntary interaction (or at best a

Terry Stop) in which the subject puts his hands

out the window of his car, if the officer raises

his gun and points it at the subject is it

excessive force?

i

PARTIES TO THE PROCEEDINGS

Petitioner is Gregory Clark, an individual.

Respondent is Austin Clark, (no relation to

petitioner), a Ste. Genevieve County, Missouri

Sheriff’s Deputy, sued in his individual capacity only.

These are the same parties who were before the

Eighth Circuit and the district court.

CORPORATE DISCLOSURE STATEMENT

Neither party is a corporation.

RELATED COURT PROCEEDINGS

1.

Eighth Circuit

No. 18-1324,

Gregory Clark v. Austin Clark

Opinion issued June 13, 2019.

2.

United States District Court,

Eastern District of Missouri

No. 1:16-CV-00094 AGF

Gregory Clark v. Austin Clark

Opinion issued January 23, 2018.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ............... i

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ............ ii

RELATED COURT PROCEEDINGS ........................ ii

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

PETITION FOR WRIT OF CERTIORARI ................ 1

CITATIONS TO OPINIONS BELOW ....................... 1

STATEMENT OF THIS COURT’S JURISDICTION 2

RELEVANT STATUTORY AND

CONSTITUTIONAL PROVISIONS........................... 2

STATEMENT OF THE CASE .................................... 4

REASONS FOR GRANTING THE PETITION ......... 9

CONCLUSION.......................................................... 21

APPENDIX A, EIGHTH CIRCUIT OPINION…App 1

APPENDIX B, DISTRICT COURT OPINION.App 19

APPENDIX C, DENIAL OF REHEARING…..App 37

iii

TABLE OF AUTHORITIES

CASES

Bellotte v. Edwards, 629 F.3d 415, 423 (4th Cir. 2011)

.............................................................................. 13

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) ........... 19

Correa v. Simone, 528 F. App’x 531 (6th Cir. 2013)

........................................................................ 19, 20

Feemster v. Dehntjer, 661 F.2d 87 (8th Cir. 1981) . 18

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865,

(1989) ................................................................... 16

Green v. City & Cty. of San Francisco, 751 F.3d 1039,

(9th Cir. 2014)................................................ 18, 19

Holland ex rel. Overdorff v. Harrington, 268 F.3d

1179 (10th Cir. 2001) ........................................... 18

Kisela v. Hughes, 138 S. Ct. 1148 (2018) ........... 12, 17

Lolli v. County of Orange, 351 F.3d 410 (9th Cir.

2003)..................................................................... 19

McDonald v. City of Chicago, Ill., 561 U.S. 742, 130

S. Ct. 3020, (2010) ............................................... 13

Mlodzinski v. Lewis, 648 F.3d 24 (1st Cir. 2011) .... 18

Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465 (2005)

.............................................................................. 18

iv

Northrup v. City of Toledo Police Department, 785

F.3d 1128 (6th Cir. 2015)...................................... 13

Rochell v. City of Springdale Police Dep't, et al., No.

17-3608, 2019 WL 1859237, (April 25, 2019)

............................................................ 15, 16, 17, 18

Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889

(1968) ................................................................... 13

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, (1968)

...................................................................... passim

United States v. Black, 707 F.3d 531 (4th Cir. 2013)

.............................................................................. 10

United States v. Guerrero, 374 F.3d 584 (8th Cir.

2004)..................................................................... 11

United States v. Mendenhall, 446 U.S. 544, 100 S.

Ct. 1870 (1980)............................................... 10, 11

United States v. Palmer, 603 F.2d 1286 (8th Cir.

1979)..................................................................... 10

United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581

(1989) ............................................................. 12, 14

Wilson v. Lamp, 901 F.3d 981 (8th Cir. 2018)

............................................................ 15, 16, 17, 18

STATUTES

28 U.S.C. § 1254 .......................................................... 2

28 U.S.C. § 1291 .......................................................... 8

v

28 U.S.C. § 1331 .......................................................... 7

28 U.S.C. § 1343 .......................................................... 7

42 U.S.C. § 1983 ...................................................... 2, 9

CONSTITUTIONAL PROVISION

United States Constitution, Fourth Amendment

........................................................................... passim

RULES

Rules of the Supreme Court of the United States,

Rule 13 ............................................................... 2, 7

Federal Rule of Appellate Procedure 28(j) ................. 16

vi

PETITION FOR WRIT OF CERTIORARI

Gregory Clark respectfully petitions for a writ of

certiorari to review the judgment in this case of the

United States Court of Appeals for the Eighth Circuit.

CITATIONS TO OPINIONS BELOW

The Eighth Circuit Court of Appeals’ judgment

affirming the District Court was issued on June 13,

2019. It is reported at 926 F.3d 972 and is attached as

Appendix A.

The District Court Order granting summary

judgment in favor of respondent was issued on

January 23, 2018. It is available at 2018 WL 513590

and is attached as Appendix B.

The Eighth Circuit’s Order denying rehearing

was issued on July 16, 2019. It was not separately

reported and is attached as Appendix C.

1

STATEMENT OF THIS COURT’S JURISDICTION

The Eighth Circuit issued its decision on June

13, 2019. It entered its order denying petitioner’s

Motion for Panel and En Banc Rehearing on July 16,

2019. Pursuant to the Rules of the Supreme Court of

the United States, Rule 13.1, this Petition was filed

before October 14, 2019, that is, within 90 days of July

16, 2019.

Under 28 U.S.C. § 1254(1) this court has

jurisdiction to review the Eighth Circuit’s decision on

a writ of certiorari.

RELEVANT STATUTORY AND

CONSTITUTIONAL PROVISIONS

The United States

Amendment, states:

Constitution,

Fourth

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.

42 U.S.C. § 1983 states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

2

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act

or omission taken in such officer's judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section, any

Act of Congress applicable exclusively to the District

of Columbia shall be considered to be a statute of the

District of Columbia.

3

STATEMENT OF THE CASE

1.

Facts

On January 25, 2016 Gregory Clark was on his

way from Memphis to Chicago in his black Toyota

Tundra pick-up. He stopped at the Bloomsdale rest

area on northbound I-55 in Missouri’s Ste. Genevieve

County. He sat a table and talked to a friend on the

phone.

Meanwhile the principal of a school

approximately 150 yards away was calling 911 stating

“We are hearing gunshots toward the highway by the

rest area.” A dispatcher spread the word stating,

“There is a report of shots fired near the rest stop,

possibly in the wooded area between the rest stop and

the elementary school.” Deputy Austin Clark,

(unrelated to petitioner Gregory Clark), and his

partner were then in a police car traveling northbound

on I-55. They were already past the rest area so they

looped back around. Twelve to fifteen minutes after

the sound which led the principal to call, they drove

into the rest area. Petitioner acknowledges, of course,

that a report from a school of “shots fired” is an

extremely serious matter, and the officers’

investigation was essential.

The officers parked and walked toward

Gregory. There were two other passenger cars on the

“car side” of the rest area and an unknown number of

trucks on the “truck side.” There were no other

individuals in sight. Gregory recognized that Deputy

Clark and his partner were law enforcement. He did

not get off the phone and he acknowledges that as they

approached he was non-plussed. At that time,

4

however, he had no idea why they were walking up to

him. In any case, because he was carrying a concealed

weapon, Gregory acted in a manner consistent with

his concealed carry training, that is, he immediately

handed the officers his driver’s license, military ID,

retired, and his concealed carry permit. He also orally

informed the officers that he was armed.

The officers asked if he had heard shots and he

said no. The officer asked where he was going and he

said Chicago.

Deputy Clark proceeded to “run” Gregory, that

is, he used Gregory’s identification cards to call

Gregory’s pedigree information into dispatch to check

for warrants. Dispatch responded that Gregory was

clean. Deputy Clark then handed Gregory back his

three ID cards.

Petitioner’s first Question Presented is whether

Deputy Clark’s running Gregory violated Gregory’s

Fourth Amendment right to be free of an

unconstitutional seizure during what he believes was

a voluntary interaction but which the Eighth Circuit

analyzed either as a voluntary interaction or a Terry

stop.

Events continued as follows. Gregory asked

Deputy Clark “Why did you run me?” Deputy Clark

responded with words to the effect of: “Don’t play the

race card with me.” (Gregory is African-American).

Their oral dispute continued a moment longer and

then Deputy Clark and his partner walked into the

rest area building to continue their investigation.

Gregory waited a few moments, got some water out of

5

the back of his truck, and drove off. The officers had

not told him to stay.

Deputy Clark and his partner found Gregory’s

departure suspicious and they followed him in their

patrol car. They assert that over the next couple of

miles they saw Gregory “moving around” in his cab in

a suspicious manner. Gregory counters that the tint

on his back window would have prevented them from

seeing him “moving around” and “moving around” is

innocent conduct anyway.

Being followed by the police made Gregory

nervous. At the next exit he pulled off the highway and

headed back south. Deputy Clark found the U-turn

suspicious. Soon Gregory was leading a procession of

several police cars. After several miles he stopped on

an exit ramp. He had broken no traffic laws.

The events of the next few moments are the

subject of petitioner’s Second Question Presented.

After he stopped, Gregory put both his hands

out the driver’s side window of his truck. Meanwhile

Deputy Clark pulled his vehicle behind Gregory’s

vehicle and Deputy Clark got out of his police vehicle

and drew his weapon. Then, as shown on video and as

stated by the district court:

Defendant’s bodycam recording shows that as

he was approaching Plaintiff’s vehicle,

Defendant’s gun was in a “low ready” position,

but as he got closer, he raised his arm so that

the gun was pointed at Plaintiff.

6

Petitioner’s second Question Presented is

whether raising the gun and pointing it at Gregory,

who was neither fleeing nor actively resisting and who

had given himself up, was objectively unreasonable

from the perspective of a reasonable officer on the

scene, and therefore whether Deputy Clark violated

Gregory’s Fourth Amendment right to be free of

excessive force.

A different deputy eventually smelled

Gregory’s gun, concluded by the lack of odor that it

had not been fired, and let Gregory go.

2.

Procedural History

Petitioner filed a complaint in the Eastern

District of Missouri on May 4, 2016 asserting seven

federal constitutional claims. The district court had

jurisdiction pursuant to 28 U.S.C. § 1331 and 28

U.S.C. § 1343, which give the district courts

jurisdiction over federal claims.

Petitioner amended and Respondent filed his

Answer. The parties conducted discovery. Respondent

filed a Motion for Summary Judgment and the parties

briefed the Motion. On January 23, 2018 the District

Court1 granted Summary Judgment to Respondent on

all claims. That decision constituted a final decision of

the district court. That opinion is attached as

Appendix B.

Petitioner filed his timely appeal to the Eighth

Circuit Court of Appeals on February 14, 2018. That

1 The Honorable Audrey G. Fleissig, United States District Judge

for the Eastern District of Missouri.

7

court had jurisdiction pursuant to 28 U.S.C. § 1291,

which gives the Circuit Courts jurisdiction over

appeals of final decisions of the District Courts. On

June 13, 2019 the Eighth Circuit affirmed.2 Petitioner

filed a timely Motion for Rehearing on June 25, 2019,

and the Eighth Circuit denied that Motion on July 16,

2019. The Eighth Circuit’s opinion was then a final

decision of that court.

Petitioner is filing this Petition for a Writ of

Certiorari within 90 days thereafter, Rules of the

Supreme Court of the United States, Rule 13.1.

Petitioner seeks review in this court of two of his

original seven claims.

2

Smith, Chief Judge, Colloton, and Erickson, Circuit Judges.

8

REASONS FOR GRANTING THE PETITION

1.

Running a Subject during a

Interaction is an Unlawful Seizure

Voluntary

Gregory Clark was at a highway rest area

talking on the phone. A nearby elementary school had

reported shots fired from the general direction of the

rest area. Twelve to fifteen minutes later Deputy

Austin Clark, (unrelated to petitioner Gregory Clark),

and his partner drove into the rest area and walked

up to Gregory. There were two other cars on the “car

side,” and an unknown number of trucks on the “truck

side.” No one else was in sight.

Gregory had a concealed carry permit and

consistent with his training he immediately handed

the officers his driver’s license, his military ID,

(retired), and concealed carry permit, and he told the

officers he was armed.

There ensued an oral interaction in which

Gregory told the officers he had not heard shots fired

and that he was going to Chicago.

Deputy Clark then “ran” Gregory, that is, he

used Gregory’s ID to call Gregory’s pedigree into

dispatch to check for warrants. Gregory came back

clean.

Pursuant to 42 U.S.C. 1983 Gregory sues for an

unconstitutional Fourth Amendment seizure while he

was being run.

The Eighth Circuit’s opinion first stated that

the interaction was voluntary and the running

9

Gregory was not a seizure. The opinion then stated, in

the alternative, that “these facts would give an

objectively reasonable officer articulable suspicion to

conduct a Terry stop.”

In support of the conclusion that there was no

seizure the Eighth Circuit stated:

[I]nferred consent was never explicitly revoked.

Gregory never gave the officers reason to

believe that he no longer wished to engage in

the contact. Gregory never asked for the return

of his identification cards or whether he could

leave. Gregory has not pointed to any physical

restraint, blocking action, or other show of

authority that would indicate he was not free to

leave.

In United States v. Palmer, 603 F.2d 1286,

1288–89 (8th Cir. 1979) the court stated: “Whenever a

police officer accosts an individual and restrains his

freedom to walk away, he has seized that person…

The seizure requirement is fulfilled when it is

apparent from the circumstances that the individual

was not free to ignore the officer and proceed on his

way,” (citations and internal quotation marks

omitted). Muehler v. Mena, 544 U.S. 93, 101, 125 S.

Ct. 1465, 1471 (2005) reaffirms that the reciprocal

situation, “mere police questioning”, does not

constitute a seizure.

In United States v. Black, 707 F.3d 531, 538 (4th

Cir. 2013), the court stated “The retention of a citizen's

identification or other personal property or effects is

highly material under the totality of the

circumstances analysis,” (citations and internal

10

quotations omitted, emphasis in original). In United

States v. Mendenhall, 446 U.S. 544, 551, 100 S. Ct.

1870, 1875 (1980) this court stated that “the Fourth

Amendment’s requirement that searches and seizures

be founded upon an objective justification governs all

seizures of the person, including seizures that involve

only a brief detention.”

During the time Deputy Clark was holding

Gregory’s ID cards and talking to dispatch Gregory

was not free to go. First, no one in such circumstances

would leave without his ID cards. Second, if Gregory

had told the officers that he was tired of the whole

thing and wanted his IDs back so he could leave,

Deputy Clark would surely not have stopped his call,

handed him his cards back and said “Thanks, see you

later.” No reasonable person in Gregory’s position

would have thought otherwise. See United States v.

Guerrero, 374 F.3d 584, 589 (8th Cir. 2004),

discussing whether a reasonable person in the

position of the subject would have thought he was free

to leave.

Although neither the Eighth Circuit nor the

district court opinions held so explicitly, the opinions

hint that when Gregory handed his IDs to Deputy

Clark, he implicitly consented to the officer running

him, perhaps because he handed the officer the IDs of

his own volition instead of at the officer’s request.

Respectfully, petitioner suggests it is not reasonable

to believe that handing one’s ID to an officer as part of

informing him that he is armed, as one should do in

such circumstances, manifests consent to being run

and thereby seized.

11

Further, running a subject is materially

different from the de minimus intrusion of looking at

a subject’s ID and returning the ID as was approved

in Mendenhall.

Innumerable cases, of course, make it

unconstitutional to seize a subject during a voluntary

interaction, See e.g. United States v. Sokolow, 490

U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989).

This court should grant certiorari to determine

whether running a subject during a voluntary

interaction is an unconstitutional seizure.

In the interest of completeness, petitioner will

now address the Eighth Circuit’s alternative analysis,

that there was articulable suspicion for a Terry stop,

Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880

(1968).

In twelve to fifteen minutes numerous people

and cars come and go from a rest area. While Gregory

was the only person in view, there were other vehicles

present. The dispatcher’s description of the location

was not limited to the rest area, for the dispatcher had

said: “There is a report of shots fired near the rest

stop, possibly in the wooded area between the rest stop

and the elementary school.” The noise may have been

from a vehicle backfire. Gregory’s possession of a

concealed carry permit showed he had already been

through a background check and that he was a trusted

citizen. Petitioner thus suggests that from the

perspective of a reasonable officer on the scene, Kisela

v. Hughes, 138 S. Ct. 1148, 1152 (2018), Gregory’s

presence in the rest area failed to provide articulable

suspicion that he was the source of “shots fired.”

12

The next fact, that Gregory had told the officers

he was armed and had provided proof of his license to

carry a weapon, also failed to provide reasonable

suspicion.

In McDonald v. City of Chicago, Ill., 561 U.S.

742, 750, 130 S. Ct. 3020, 3025, (2010), this court

applied the Second Amendment right to bear arms to

the states. In Northrup v. City of Toledo Police

Department, 785 F.3d 1128, 1132 (6th Cir. 2015) the

Sixth Circuit held that having a gun when one has a

right to a have a gun, without evidence of

dangerousness does not create reasonable suspicion:

Clearly established law required Bright to point

to evidence that Northrup may have been

“armed and dangerous.” Sibron v. New York,

392 U.S. 40, 64, 88 S. Ct. 1889, 1903 (1968)

(emphasis added by 6th Circuit). Yet all he ever

saw was that Northrup was armed—and legally

so. To allow stops in this setting “would

effectively eliminate Fourth Amendment

protections for lawfully armed persons,”

(citations omitted).

In Bellotte v. Edwards, 629 F.3d 415, 423 (4th

Cir. 2011) the court made the same point with strong

language:

It should go without saying that carrying a

concealed weapon pursuant to a valid concealed

carry permit is a lawful act… Most importantly,

we have earlier rejected this contention: If the

officers are correct, then the knock and

announcement requirement would never apply

in the search of anyone's home who legally

13

owned a firearm. We recognized over a decade

ago that this clearly was not and is not the law,

and no reasonable officer could have believed it

to be so. (Internal quotations and citations

omitted).

The weapon also

articulable suspicion.

therefore

provided

no

While petitioner acknowledges that in the

totality of the circumstances several innocent

activities taken together may create reasonable

suspicion, United States v. Sokolow, 490 U.S. at 9,

petitioner suggests the only two facts here which

conceivably support such suspicion, being in the

general area of “shots fired” twelve to fifteen minutes

after the noise and being armed, even taken together,

still amount to insufficient suspicion. Petitioner thus

suggests that there was no articulable suspicion for a

Terry stop.

If the Eighth Circuit’s voluntary interaction

analysis stands, there will be a major change in the

way law enforcement interacts with citizens. Hereafter

during voluntary interactions officers will be allowed

not just to examine identification, but will be further

allowed to run the citizens for warrants. Perversely,

once word reaches the street that merely acceding to an

officer’s request for ID will result in being run, then

during voluntary interactions subjects may decline to

turn over their IDs.

Petitioner suggests that voluntary interactions

in which officers examine ID occur in America many,

many times per day. Allowing officers to run subjects in

those circumstances will open the door to unlawful

14

seizures. Petitioner suggests that this court should

grant certiorari to stop that practice.

2.

Pointing a Gun at a Subject Who has

Surrendered is Excessive Force

After Gregory left the rest area the officers

pursued him on the interstate for nineteen miles. He

violated no traffic laws. As the pursuit continued the

number of patrol cars in the procession increased,

although none lit their emergency lights or in any way

directed him to pull over. In any case, Gregory stopped

on an exit ramp and put both his hands out his driver’s

side window. He thereby showed surrender and no

resistance.

Petitioner would have no quarrel if Deputy Clark

had kept his weapon in the “low ready” position.

Petitioner asks this court to review, however, whether

under this circumstance of surrender it was excessive

force for Deputy Clark to raise his gun and point it at

Gregory. (In his deposition Deputy Clark claimed he

kept his gun in the low ready position. Deputy Clark’s

bodycam video as shown in the reflection of the rear

door of the black Toyota Tundra, however, proved

otherwise).

After briefing in the Eighth Circuit but before

oral argument, the Eighth Circuit issued Wilson v.

Lamp, 901 F.3d 981 (8th Cir. 2018), a case in which

the court denied qualified immunity to officers who

pointed guns at a subject after they knew the subject

was the wrong person-although in fairness petitioner

notes that in that case the subject was by then out of

his vehicle and had been patted down.

15

After the court issued its opinion but before the

filing of the Motion for Rehearing, the Eighth Circuit

issued Rochell v. City of Springdale Police Dep't, et al.,

No. 17-3608, 2019 WL 1859237, (April 25, 2019),

unpublished. That case held:

[A] police officer uses excessive force by

pointing his service weapon at the head of a

suspect who has dropped his weapon, has

submitted to arrest, and no longer poses an

immediate threat to the safety of officers or

others. See Graham v. Connor, 490 U.S. 386,

396, 109 S. Ct. 1865, 1872 (1989) (when

determining whether force was excessive,

relevant considerations include severity of

crime, threat suspect posed to officers or others,

and whether suspect resisted arrest or

attempted to flee); Wilson v. Lamp, 901 F.3d

981, 989–90 (8th Cir. 2018) (officers may

reasonably brandish weapons when confronted

with serious danger in course of investigative

stops, but they are not permitted to ignore

changing circumstances and new information

that emerges).

(Before the Eighth Circuit handed down its

opinion petitioner wrote a Federal Rule of Appellate

Procedure 28(j) letter drawing the court’s attention to

Wilson and Rochell).

Despite Wilson and Rochell the Eighth Circuit

granted Deputy Clark qualified immunity and wrote:

Gregory signaled compliance by putting his

hands out the driver’s side window. A

reasonable officer was justified in believing the

16

situation was not fully under control until

Gregory had been removed from the vehicle,

patted down, and restrained.

In his concurrence in Rochell the Honorable Steven M.

Colloton stated:

Wilson held not only that pointing a firearm at

a compliant suspect was unreasonable, but that

the unreasonableness of that conduct was

clearly established as of September 2014—

more than a year before the incident in this

case. The Wilson decision is debatable. Despite

the Supreme Court’s admonition to ask

whether “existing precedent squarely governs

the specific facts at issue,” Wilson relied on

cases involving the use of physical force or

violence against compliant subjects to conclude

that the unreasonableness of pointing a gun

was clearly established. Id. at 990-91.

The Eighth Circuit opinion, plus the word

“debatable” in Rochell, leaves the border between

excessive and acceptable force more not less “hazy”,

Kisela v. Hughes, 138 S. Ct. 1148, 1153, (2018). A hazy

border is fair neither to the public nor to police

officers.

Petitioner notes that on August 28, 2019 Cody

Ross, the original defendant officer in Rochell, filed in

this court a now pending Petition for Certiorari, No.

19-263.

Petitioner notes that this is not a case in which

the subject drove at high speeds, fled in a getaway car,

or fought the officers, and the officers then pointed a

17

gun to make the subject surrender. This is a case in

which the subject had already surrendered and the

officer then raised and pointed his gun. Petitioner

suggests that this court needs to clarify whether an

officer may raise and point a gun at a subject who has

already surrendered.

But there is more. The Eighth Circuit’s opinion

inserts into the analysis the amount of time the gun

may be pointed at the subject:

Gregory relies on cases from this circuit and

other circuits that have found that pointing a

gun may constitute an unconstitutional display

of force. E.g., Rochell v. City of Springdale

Police Dep’t, No. 17-3608, 2019 WL 1859237

(8th Cir. Apr. 25, 2019); Wilson v. Lamp, 901

F.3d 981 (8th Cir. 2018); Mlodzinski v. Lewis,

648 F.3d 24, 38 (1st Cir. 2011); Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 119293 (10th Cir. 2001). Those cases are not

analogous to the circumstances confronting the

officers in this case. They involve incidents

where guns were pointed at suspects for

unreasonably long periods of time, well after

the police had taken control of the situation.

The opinion thus suggests that if an officer only

points a gun at a non-resisting subject for a short time

there has been no excessive force. That ignores for

example, Feemster v. Dehntjer, 661 F.2d 87, 89 (8th

Cir. 1981) holding in a prisoner context that an

officer’s use of any force is unreasonable when the

individual “quietly submits.” It also ignores, for

example Green v. City & Cty. of San Francisco, 751

F.3d 1039, 1049 (9th Cir. 2014), a case in which among

18

other acts officers pointed guns at the subject and the

court said:

The question therefore becomes whether this

degree of intrusion was justified by the

governmental interests at stake. To assess the

gravity of the government interests, we have

typically considered (1) the severity of the crime

at issue, (2) whether the suspect poses an

immediate threat to the safety of the officers or

others, and (3) whether he is actively resisting

arrest or attempting to evade arrest by flight.

Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.

1994), (internal quotations omitted). Where

these interests do not support a need for force,

any force used is constitutionally unreasonable.

Lolli v. County of Orange, 351 F.3d 410, 417

(9th Cir. 2003) (internal quotation marks

omitted, emphasis in original).

The Green court also held, 751 F.3d at 1050:

While the crime at issue (stolen vehicle or

plates) was arguably severe, there was no

indication at the scene that Green posed an

immediate threat to the safety of the officers or

others.

This case is similar to Green in that in both

cases the crime under investigation was serious, but

the other factors were in the subject’s favor. The

Eighth Circuit’s opinion here thus conflicts with the

Ninth Circuit’s opinion in Green.

Petitioner also notes Correa v. Simone, 528 F.

App’x 531 (6th Cir. 2013) a tasering case where there

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was concern that the subject had a gun but he was not

resisting arrest and the court denied qualified

immunity. The court stated at 534 that in 2010 “it was

clearly established that tasing a suspect who was

potentially armed with a gun, but who offered no

resistance to arrest, violated the suspect's Fourth

Amendment rights.” Surely pointing a gun at a

subject, and therefore threatening to kill the subject,

is more serious than tasing a subject. The Correa court

also said at 535-536:

The precedent in this Circuit clearly holds that

a police officer must encounter some level of

resistance by the defendant to justify using a

taser. The mere possession of a gun is not, in

and of itself, resistance unless coupled with

something more, such as a physical or verbal

action. Holding otherwise would mean ignoring

a significant amount of precedent establishing

the importance of a defendant's resistance to an

officer’s calculation of whether to use his or her

taser. Using a taser on a potentially armed

suspect who is complying with all officer

commands and not resisting violated clearly

established law as of May 2010.

Subjects surrender to law enforcement in an

obvious manner in America many times per day. The

Eighth Circuit opinion at issue here, which allows

officers to raise their guns at subjects in those

circumstances,

countenances

unconstitutional

excessive force. Petitioner suggests that this court

should grant certiorari to stop that practice.

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CONCLUSION

For the foregoing reasons, Petitioner

respectfully requests that the Supreme Court grant

review of this matter.

Respectfully submitted,

W. Bevis Schock

Counsel of Record for Petitioner

7777 Bonhomme Ave., Ste. 1300

St. Louis, Missouri 63105

314 726-2322

wbschock@schocklaw.com

October 2, 2019

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