Amicus Curiae Brief — Michael Hunter, et al., Petitioners v. Randy Cole, et al.
Supreme Court briefJan 13, 2020
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No. 19-753
In the
Supreme Court of the United States
MICHAEL HUNTER, MARTIN CASSIDY,
CARL CARSON,
Petitioners,
v.
RANDY COLE, KAREN COLE, RYAN COLE,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Fifth Circuit
BRIEF OF AMICI CURIAE
INTERNATIONAL ASSOCIATION OF CHIEFS OF
POLICE, INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION, MAJOR CITIES CHIEFS ASSOCIATION,
NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,
NATIONAL SHERIFFS’ ASSOCIATION, LOUISIANA
MUNICIPAL ASSOCIATION, MISSISSIPPI MUNICIPAL
SERVICE COMPANY, TEXAS ASSOCIATION OF
COUNTIES, TEXAS MUNICIPAL LEAGUE, TEXAS CITY
ATTORNEYS ASSOCIATION, TEXAS POLICE CHIEFS
ASSOCIATION, COMBINED LAW ENFORCEMENT
ASSOCIATIONS OF TEXAS AND CITIES OF ARLINGTON,
GARLAND, GRAND PRAIRIE, AND SUGAR LAND, TEXAS
IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI
Mike Thompson, Jr.
Associate General Counsel
Texas A ssociation
of Counties
1210 San Antonio Street
Austin, TX 78701
(512) 478-8753
Megan Suarez Mahan
City Attorney
Counsel of Record
Mark E. Dempsey
Deputy City Attorney
City of Grand Prairie
300 West Main Street
Grand Prairie, TX 75050
(972) 237-8026
mmahan@gptx.org
Counsel for Amici Curiae
293307
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.
An Analysis of the Perceptions of an Objectively
Reasonable Officer Supports a Reversal . . . . . . . 7
A. A Recent Shooting Illustrates that
Respondent’s Actions Reasonably
Indicated that He Posed a Threat of
Serious Bodily Injury . . . . . . . . . . . . . . . . . . 9
B. A Reasonable Officer Would Have
Likely Identified Cole as a Potential
Active Shooter . . . . . . . . . . . . . . . . . . . . . . . 10
C. A Reasonable Off icer Would Be
Cognizant of the Unpredictable Danger
to Law Enforcement . . . . . . . . . . . . . . . . . . 15
II. An Erosion of Qualified Immunity Has
Societal Consequences . . . . . . . . . . . . . . . . . . . . . 17
ii
Table of Contents
Page
A. A n Erosion of Im mun ity Cou ld
Cause a Chilling Effect on the Law
Enforcement Workforce . . . . . . . . . . . . . . . 19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iii
TABLE OF CITED AUTHORITIES
Page
CASES
Anderson v. Creighton,
483 U.S. 635, 107 S. Ct. 3034 (1987) . . . . . . . . . . . . . 24
Ashcroft v. al–Kidd,
563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . 9, 17, 24
Brinegar v. United States,
338 U.S. 160 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Carroll v. Carman,
574 U.S. 13 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
City & County of San Francisco v. Sheehan,
575 U.S. 600 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
City of Escondido v. Emmons,
139 S. Ct. 500 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
City of Los Angeles v. Heller,
475 U.S. 796 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Crawford-El v. Britton,
523 U.S. 574 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
District of Columbia v. Wesby,
138 S. Ct. 2561 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Harlow v. Fitzgerald,
457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . 8-9, 22, 23, 24
iv
Cited Authorities
Page
Harris v. Pittman,
927 F.3d 266 (4th Cir. 2019) . . . . . . . . . . . . . . 18, 21, 22
Kimble v. Marvel Entertainment, LLC,
135 S. Ct. 2401 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Kisela v. Hughes,
138 S. Ct. 1148 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 17
Malley v. Briggs,
475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 23
Messerschmidt v. Millender,
565 U.S. 535 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mullenix v. Luna,
136 S. Ct. 305 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Ontiveros v. City of Rosenberg,
564 F.3d 379 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 6
Pearson v. Callahan,
555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Plumhoff v. Rickard,
572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
Reichle v. Howards,
566 U.S. 658 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Roberts v. Louisiana,
431 U.S. 633 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
v
Cited Authorities
Page
Ryburn v. Huff,
565 U.S. 469 (2012) . . . . . . . . . . . . . . . . . . . . . . 8, 13, 17
Salazar-Limon v. City of Houston,
826 F.3d 272 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 16
Scott v. Harris,
550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Stanton v. Sims,
571 U.S. 3 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Taylor v. Barkes,
575 U.S. 822 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tennessee v. Garner,
471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Terry v. Ohio,
392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 16
White v. Pauly,
137 S. Ct. 548 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Winzer v. Kaufman Cty.,
916 F.3d 464 (5th Cir. 2019) . . . . . . . . . . . . . . . . 7, 13-14
Wood v. Moss,
572 U.S. 744 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
vi
Cited Authorities
Page
STATUTES
Tex. Code Crim. Pro. Ann. art. 2.13 . . . . . . . . . . . . . . . . . . 15
Federal Courts Improvement Act, 110 Stat. 3847 . . . . 18
OTHER AUTHORITIES
Brian Reaves, State and Local Law Enforcement
Training Academies, 2013, U.S. Department of
Justice, The Bureau of Justice Statistics (July 2016),
https://www.bjs.gov/content/pub/pdf/slleta13.pdf . . 21
Erwin Chemerinsky, How the Supreme Court
Protects Bad Cops, N.Y. Times (Aug. 27, 2014),
http://nyti.ms/1ASeUKc . . . . . . . . . . . . . . . . . . . . . . . 17
Federal Bureau of Investigation, Active Shooter
Study: Quick Reference Guide (2014), https://
www.fbi.gov/file-repository/as-study-quickreference-guide-updated1.pdf/view . . . . . . . . . . 10, 11
Federal Bureau of Investigation, Law Enforcement
Of f i c e r s Ki l l e d an d Assa u l t e d , 2 0 0 92018, U.S. Department of Justice, https://
ucr.fbi.gov/leoka/2018/tables/table-1.xls . . . . . . . . . 15
Fe d e r a l B u r e a u o f I n ve s t i g a t i o n , L a w
Enforcement Officers Killed and Assaulted,
U.S. Department of Justice, https://www.fbi.
gov/services/cjis/ucr/publications . . . . . . . . . . . . . . . 16
vii
Cited Authorities
Page
Jeremy Wilson, Police Recruitment and Retention
for the New Millennium: the State of Knowledge,
RAND Center on Quality Policing (2010),
https://w w w.rand.org /content /dam /rand /
pubs/monographs/2010/RAND_MG959.pdf . . . 20, 23
Kevin Gilmartin, Emotional Survival For Law
Enforcement (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Mark Berman, Former Broward sheriff’s deputy
who did not confront Parkland shooter arrested,
charged with neglect, The Washington Post
(June 4, 2018), https://www.washingtonpost.com/
national/former-broward-sheriffs-deputy-whodid-not-confront-parkland-shooter-arrestedcharged-with-neglect/2019/06/04/3ef5564c86fd-11e9-98c1-e945ae5db8fb_story.html . . . . . 15, 15
National Threat Assessment Center, Protecting
America’s Schools: A U.S. Secret Service
Analysis of Targeted School Violence, U.S. Secret
Service, Department of Homeland Security
(November 2019), https://www.secretservice.
g o v/d a t a / p r ot e c t i on / nt a c / P r ot e c t i n g _
Americas_Schools.pdf . . . . . . . . . . . . . . . . . . . . . . . . 12
Police Executive Research Forum, The Police
Respo n se t o Ac tive Sh oot er In ci d ents
(March 2014), https://www.policeforum.org/
assets/docs/Critical_Issues_Series/the%20
pol ice%2 0 response%2 0 t o%2 0 a ct ive%2 0
shooter%20incidents%202014.pdf . . . . . . . . . . . . . . . 11
viii
Cited Authorities
Page
Police Executive Research Forum, The Workforce
Crisis, and What Police Agencies Are Doing
About It (September 2019), https://w w w.
policeforum.org/assets/WorkforceCrisis.pdf . . . . . . 19
Shelley Hyland, Full-Time Employees in Law
Enforcement Agencies , 1997-2016, U. S.
Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics (2018), https://
www.bjs.gov/content/pub/pdf/ftelea9716.pdf . . . . . . 20
Video captures wild Florida car chase and deadly
shootout, CBS News (April 13, 2019), https://
w w w.cbsnews.com /news/video-captureswild-florida-car-chase-and-shootout/ . . . . . . . . . . . . . 9
William Baude, Is Qualified Immunity Unlawful?,
106 Calif. L. Rev. 45 (2018) . . . . . . . . . . . . . . . . . . . . 17
U.S. Const. Amend. IV . . . . . . . . . . . . . . . . . . . . 5, 7, 9, 14
1
INTEREST OF AMICI CURIAE1
The International Association of Chiefs of Police
(IACP) is the world’s largest and most inf luential
professional association for police leaders. With more
than 30,000 members in over 160 countries, the IACP
is a recognized leader in global policing, committed
to advancing safer communities through thoughtful,
progressive police leadership. Since 1893, the association
has been serving communities worldwide by speaking out
on behalf of law enforcement and advancing leadership and
professionalism in policing worldwide. IACP represents
the interests of law enforcement agencies at the state,
local and federal levels. IACP members include law
enforcement executives and officers who are charged with
the responsibility of protecting citizens from crime.
The International Municipal Lawyers Association
(IMLA) is a nonprof it, nonpar tisan professional
organization consisting of more than 3,000 members.
IMLA’s membership is comprised of local government
entities, including cities, counties, state municipal leagues,
and individual attorneys representing governmental
interests. Since its establishment in 1935, IMLA
has advocated for the rights and privileges of local
governments.
1. No counsel for a party authored this brief in whole or in
part, and no such counsel or party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than amici curiae, their members, or their counsel
made a monetary contribution to its preparation or submission.
The parties have been given at least 10 days’ notice of amici’s intent
to file, and have consented to the filing of this brief.
2
The Major Cities Chiefs A ssociation (MCCA)
is a professional association of Chiefs and Sheriffs
representing the largest cities in the United States and
Canada. The MCCA provides a collaborative forum for
the advancement of public safety through innovation,
research, community outreach, leadership development
and government engagement.
The National Association of Police Organizations
(NA PO) is a nationw ide alliance of organizations
committed to advancing the interests of law enforcement
officers. Since NAPO’s founding in 1978, it has become
the strongest unified voice supporting law enforcement in
the United States. The organization represents over 1,000
police units and associations, over 241,000 sworn officers,
and more than 50,000 citizens mutually dedicated to fair
and effective law enforcement.
The National Sheriffs’ Association (Association), a
26 U.S.C. § 501(c)(4) non-profit organization, was formed
in 1940 to promote the fair and efficient administration
of criminal justice throughout the United States and
to promote, to protect, and to preserve our nation’s
Departments/Offices of Sheriff. The Association has
more than 14,000 members and is a strong advocate for
more than 3,000 individual sheriffs located throughout
the United States. More than 99% of our Nation’s
Departments/Offices of Sheriff are directly elected by
the people in their local counties, cities, or parishes. The
Association promotes the public interest goals and policies
of law enforcement in our Nation, and it participates
in judicial processes (such as this case) where the vital
interests of law enforcement and its members are at stake.
3
The Louisiana Municipal Association (LMA) is an
association of 305 governmental entities throughout
Louisiana (303 cities, towns, and villages, and two
parishes), formed in 1926 for protection and promotion
of interests of its member entities and their citizens,
to improve efficiency and effectiveness of government.
Through its subsidiary Risk Management, Inc., the
LMA provides inter-local risk management indemnity
programs, including police liability.
The Mississippi Municipal Service Company (MMSC)
is a non-profit company that administers the Mississippi
Municipal Liability Plan (MMLP), which provides
Mississippi municipalities with liability coverage,
including public official and law enforcement coverage.
The MMLP is funded through resources pooled together
by its members in order to assure their protection and
defense against municipal risks.
The Texas Association of Counties (TAC) is a Texas
non-profit corporation with all 254 Texas counties as
members. The following associations are represented
on the TAC Board of Directors: County Judges and
Commissioners Association of Texas; North and East
Texas Judges and Commissioners Association; South
Texas Judges and Commissioners Association; West Texas
Judges and Commissioners Association; Texas District
and County Attorneys Association; Sheriffs’ Association of
Texas; County and District Clerks’ Association of Texas;
Texas Association of Tax Assessor-Collectors; County
Treasurers’ Association of Texas; Justice of the Peace and
Constables Association of Texas; and Texas Association
of County Auditors.
4
The Texas Municipal League (TML) is a non-profit
association of over 1,100 incorporated cities. TML provides
legislative, legal, and educational services to its member
cities. The Texas City Attorneys Association (TCAA), an
affiliate of TML, is an organization of over 400 attorneys
who represent Texas cities and city officials in the
performance of their duties. TML and TCAA advocate
for interests common to all Texas cities.
The Texas Police Chiefs Association (TPCA) was
founded in 1958 to promote, encourage and advance the
professional development of Chiefs of Police and senior
police management personnel throughout the State of
Texas. TPCA actively seeks to promote the professional
practice of law enforcement administration, to represent
the membership and the profession on issues of concern,
and to encourage high ethical standards of conduct among
law enforcement administrators through its code of ethics.
The Combined Law Enforcement Associations
of Texas (CLEAT) is the largest labor organization
representing the rights and interests of law enforcement in
Texas. CLEAT’s membership consists of more than 20,000
law enforcement professionals statewide. The organization
provides legal, legislative, and collective bargaining
services to its members and affiliated associations.
The cities of Arlington, Garland, Grand Prairie,
and Sugar Land are home rule municipalities in Texas.
Each operates a police department. When necessary,
these cities defend their public officials, law enforcement
included, against suits arising from the performance of
their duties. Arlington, Garland, Grand Prairie, and Sugar
Land have all had one or more police officers who were
5
shot and killed in the line of duty. Like all American cities,
legal precedents on the use of force by police have a direct
impact on the cities joining this brief.
Amici represent various levels of local government,
including law enforcement agencies. Amici have an interest
in ensuring that law enforcement officers have clear legal
guidance regarding the scope of their constitutional
authority in carrying out their duties – particularly in
cases involving the use of deadly force – to enable officers
to make reasonable and lawful decisions in protecting the
public without fear of civil lawsuits. Although this Court’s
decisions have consistently emphasized the importance of
qualified immunity, lower courts continue to improperly
deny peace officers the protection of qualified immunity
in cases alleging the unreasonable use of force. In this
instance, the Fifth Circuit based their denials on a
misapplication of qualified immunity principles. Amici
have an interest in this Court reinforcing the rules that
apply at summary judgment when determining claims of
immunity from Fourth Amendment use of force claims,
and amici respectfully urge the Court to grant certiorari
in this case.
SUMMARY OF ARGUMENT
The police profession is dangerous, stressful, and
often thankless. Every citizen encounter contains the
possibility of an unanticipated violent confrontation, and
there is no way to predict which encounter will end in
violence. While most citizen contacts are benign, officers
are forced to be on constant alert because they do not know
when danger may present itself. Because the citizen is the
one initiating the violence against a reasonable officer, and
6
“action beats reaction,” police enter every encounter at
a disadvantage. Ontiveros v. City of Rosenberg, 564 F.3d
379, 384 (5th Cir. 2009). The reasonable officer has to
evaluate so many unknowns (e.g., Does the suspect have a
gun or a phone in his/her pocket? Where are all the exits,
in case the suspect runs? Is the suspect reaching for a
knife or scratching his/her back?) while simultaneously
mentally racing through the legal protocols and training –
and the officer must do so within a matter of seconds before
making a decision with potentially deadly consequences.
If this Court is going to hold officers accountable for not
following clearly established law, officers should likewise
be able to depend on this Court to protect them when
no clearly established law exists. Unfortunately, the
Fifth Circuit has not provided Officers’ Hunter, Cassidy,
and Carson with such protection, in spite of the lack of
clearly established law, and has provided a dangerously
inconsistent precedent for the rest of the officers in this
jurisdiction to follow:
Abandon hope, all ye who enter Texas, Louisiana,
or Mississippi as peace officers with only a few
seconds to react to dangerous confrontations
with threatening and well-armed potential
killers. In light of ruling, and the raw count
of judges, there is little chance that, any time
soon, the Fifth Circuit will confer the qualifiedimmunity protection that heretofore-settled
Supreme Court and Fifth Circuit caselaw
requires. Pet. App. 54a.
This deterioration of the qualified immunity protection
could also have larger societal impacts. The Fifth Circuit
dissents argue that the majority ruling “undoes the careful
balance of interests embodied in our doctrine of qualified
7
immunity, stripping the officers’ defenses without regard
to the attendant social costs.” Pet. App. 76a. In the current
climate, it is already difficult to hire and retain quality
officers. Qualified candidates will be even less likely to
apply for police positions if they believe that there will be
an increased exposure to personal liability for reasonable
actions. Further, the likelihood of officers leaving the
police force prior to retirement age is a present challenge
to jurisdictions. It will become even more difficult to retain
officers if they feel like the judicial system “undermines
officers’ ability to trust their judgment during those split
seconds when they must decide whether to use lethal
force.” Pet. App. 80a (quoting Winzer v. Kaufman Cty.,
916 F.3d 464, 482 (5th Cir. 2019) (Clement, J., dissenting)).
The time and money spent on officer training is an
opportunity cost if those officers leave the workforce. Even
a 1% increase nationally in police turnover resulting from
diminished officer immunity protections would result in a
national loss of $406,580,000 of taxpayer dollars invested
into peace officer training. Thus, the case presented is
important both to the individual officers and to public
safety for society as a whole.
This Fifth Circuit ruling represents a chink in the
immunity armor afforded to law enforcement. Amici
respectfully request that this Court grant certiorari and
issue a reversal in this matter.
ARGUMENT
I.
An Analysis of the Perceptions of an Objectively
Reasonable Officer Supports a Reversal
The first prong of Fourth Amendment excessive
force analysis is an evaluation of whether “the officer
8
has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or
others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). This
evaluation has an objective reasonableness component;
in assessing “whether a reasonably prudent man in the
circumstances would be warranted in the belief that his
safety or that of others was in danger,” courts can utilize
“reasonable inferences which he [the officer] is entitled to
draw from the facts.” Terry v. Ohio, 392 U.S. 1, 27 (1968).
This Court has recognized that probable cause is dealing
“with probabilities,” and that it is “not technical; they are
the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act.” Brinegar v. United States, 338 U.S. 160, 175 (1949).
The reasonableness determination recognizes that
the officer must “make a split-second decision in response
to a rapidly unfolding chain of events.” Ryburn v. Huff,
565 U.S. 469, 477 (2012). This Court gives considerable
deference to the officer, such that “if officers of reasonable
competence could disagree on this issue, immunity should
be recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
The question is not a comparative analysis of whether
another decision is more reasonable, but rather whether
the officer’s original decision, standing alone, is located
within the constellation of reasonable decisions. See Pet.
App. 34a, 40a.
The second prong of the Fourth Amendment excessive
force analysis protects an official’s conduct with immunity
so long as it “‘does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
9
818 (1982)). The “existing precedent must have placed
the statutory or constitutional question beyond debate”
in order for an officer to be denied immunity for actions
taken. Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011).
Because the Fifth Circuit majority “ignore[s] the
critical criterion for qualified immunity in Fourth
Amendment cases: the reasonableness of the officers’
reasonable perceptions,” this section endeavors to highlight
some of the considerations a reasonable officer would have
weighed during the three to five second encounter with
Cole. Pet. App. 35a. Based on these considerations and
surrounding circumstances, a reasonable officer could
have concluded that there was threat of serious physical
harm to himself or others, and that there was no clearly
established law prohibiting the use of deadly force in these
circumstances. 2
A.
A Recent Shooting Illustrates that Respondent’s
Actions Reasonably Indicated that He Posed a
Threat of Serious Bodily Injury
A Volusia County, Florida sheriff’s department faced
a similar situation to the instant case. 3 On April 11, 2019,
a suspect and peace officers engaged in a high-speed car
chase. The police were able to disable the car, at which
point the suspect exited the car, immediately pointed a
2. See Pet. App. 28a-53a for Judge Jones’ dissent regarding
the absence of clearly established law.
3. Video captures wild Florida car chase and deadly shootout,
CBS News (April 13, 2019), https://www.cbsnews.com/news/videocaptures-wild-florida-car-chase-and-shootout/; An unedited video of
the encounter is available at https://www.youtube.com/watch?v=JqCwv1-RUY.
10
gun at his own head, and began running away from the
police on foot. The suspect, while running, moved the gun
from pointing at his own head, turned, and opened fire
on the peace officers. One shot hit a sheriff’s deputy. The
bullet grazed the top of his head, causing injury.
The Volusia County encounter serves as a real-world
example that, in spite of the fact that the gun was not
pointed directly at the officer initially, a reasonable officer
in the shoes of Petitioners would have perceived a threat
of serious bodily injury to himself or others, based on the
totality of the circumstances. The Volusia County suspect,
pointing the gun to his temple while running, turned and
shot at the police—and the suspect was able to accomplish
all these actions before the officers were able to react and
return fire. This incident is in conflict that with the Fifth
Circuit’s determination that Respondent posed no threat of
serious physical harm to the Petitioners, as it demonstrates
that a suspect holding a gun to this head was able to shoot
and injure an officer before the officer could return fire.
B. A Reasonable Officer Would Have Likely
Identified Cole as a Potential Active Shooter
Active shooter incidents have been a tragic and
frequent event in the recent history of the United States.4
The Federal Bureau of Investigations (FBI) documented
160 active shooter incidents between 2000 and 2013, with
an average of sixteen occurring annually from 2006 to
4. The FBI defines active shooter as “an individual actively
engaged in killing or attempting to kill people in a populated area.”
Federal Bureau of Investigation, Active Shooter Study: Quick
Reference Guide (2014), https://www.fbi.gov/file-repository/as-studyquick-reference-guide-updated1.pdf/view
11
2013.5 Of these incidents, twenty-four percent occurred at
a school.6 Eighty-five percent of the school shooters were
students themselves.7
Since the tragic 1999 event in Columbine, law
enforcement agencies have evolved their policies and
training to more effectively respond to the newly emerging
profile of active shooters. 8 These active shooter incidents
are fundamentally different from most other police
encounters, in that active shooters aim to inflict mass
casualties as quickly as possible, usually in a matter of
minutes.9 As such, police are trained to evaluate active
shooters differently than other types of suspects because
their motivations are starkly dissimilar to other suspects.
One of the concepts stressed during law enforcement
training is how to identify an active shooter before the
shooter takes action.10 This training also emphasizes the
heightened danger inherent in police encounters with an
active shooter.11
5. Id.
6. Id.
7. Id.
8. Police Executive Research Forum, The Police Response to
Active Shooter Incidents (March 2014), https://www.policeforum.org/
assets/docs/Critical_Issues_Series/the%20police%20response%20
to%20active%20shooter%20incidents%202014.pdf
9. Id.
10. Id.
11. Id.
12
The Secret Service did a study on qualities common
among school shooters, and Cole possessed six of ten of the
key characteristics. Those pertinent here are as follows:12
1.
The most common motive of school shooters
was a grievance with classmates (Cole and his
girlfriend recently ended their relationship. Pet.
App. 55a.);
2.
Most school shooters used firearms, usually
acquired from the home (Cole was armed with
at least one gun that was taken from the family
gun safe. Pet. App. 122a.);
3.
Most school shoot ers had psycholog ica l,
behavioral, or developmental issues (Cole was
suffering from obsessive-compulsive disorder,
treated with medications, and was described
as having poor judgment and impaired impulse
control. Pet. App. 56a.);
4.
All school shooters experienced social stressors
involving their relationships with peers and/or
romantic partners (Cole was upset over breaking
up with his girlfriend, and was moving toward the
school where she was a student. Pet. App. 55a.);
5.
Many school shooters had prior contact with
police (The police visited Cole the night before
12. National Threat Assessment Center, Protecting America’s
Schools: A U.S. Secret Service Analysis of Targeted School
Violence, U.S. Secret Service, Department of Homeland Security
(November 2019), https://www.secretservice.gov/data/protection/
ntac/Protecting_Americas_Schools.pdf
13
the incident because of a disturbance with his
parents. Pet. App. 81a.); and
6.
A ll school shooters exhibited concerning
behaviors, and also communicated their intent to
attack (Cole had threatened to shoot anyone who
tried to take his gun, and had threatened to kill
his girlfriend and himself. Pet. App. 30a, 56a.).
These identifiers, in combination with the known facts
about Cole, could lead a reasonable officer to believe that
there was a likelihood that: (1) Cole was intending to
take the gun to his girlfriend’s school in order to harm
her and any others in his path; and (2) Cole will likely
resist any police attempts to prevent him from carrying
out his plan.13 After all, “it is a matter of common sense
that a combination of events each of which is mundane
when viewed in isolation may paint an alarming picture.”
Ryburn, 565 U.S. at 476–77. This combination of events
could lead a reasonable officer to believe that Cole, at the
time of the encounter, was a threat to fire on officers.
A denial of qualified immunity for reasonable actions
taken during a possible mass shooter incident could create a
deterrence in an officer’s willingness to place themselves in
harm’s way to save lives in those highly deadly encounters.
In the Fifth Circuit case Winzer v. Kaufman County,
13. Judge Jones recounts the following undisputed facts that
indicate Cole’s repeated resistance to police authority leading
up to the encounter: “Officer Cassidy had learned that Cole ‘had
threatened to shoot anyone who tried to take his gun and had
refused an order to drop his weapon.’ Cole II, 905 F.3d at 338.
Officer Hunter watched Cole walk steadily down the train tracks
ignoring other police who were yelling at him to stop and put down
his 9 mm semiautomatic pistol.” Pet. App. 30a.
14
Judge Ho wrote about the negative potential impact of
finding a Fourth Amendment violation in reference to
active or potentially active shooter situations:
If we want to stop mass shootings, we should
stop punishing police officers who put their lives
on the line to prevent them… It is unknown
how many lives were saved by these deputies
on April 27, 2013. What is known, however,
is that Kaufman County will now stand trial
for their potentially life-saving actions—and
that its taxpayers, including those who will
forever be traumatized by Winzer’s acts of
terror, will pick up the tab for any judgment.
I have deep concerns about the message this
decision, and others like it, sends to the men
and women who swear an oath to protect our
lives and communities. For make no mistake,
that message is this: See something, do nothing.
940 F.3d 900, 901-903 (5th Cir. 2019) (Ho, J.
dissenting from denial of en banc review)
If this “see something, do nothing” message from the
courts infects the entire police workforce, it is easy to see
how the ripple effect could have catastrophic consequences.
Most directly, a Broward County, Florida active shooter
tragedy shows the dire repercussions of an officer’s
unwillingness to enter the fray.14 In this February 14, 2018
14. Mark Berman, Former Broward sheriff ’s deputy
who did not confront Parkland shooter arrested, charged
with neglect, The Washington Post (June 4 2018), https://www.
washingtonpost.com/national/former-broward-sheriffs-deputywho-did-not-confront-parkland-shooter-arrested-charged-withneglect/2019/06/04/3ef5564c-86fd-11e9-98c1-e945ae5db8fb_story.
html
15
school shooting, a Sherriff’s deputy was the lone armed
officer on campus during the bloodshed, but instead of
attempting to stop the shooter, the deputy choose to stand
outside the school building where the shooting was taking
place.15 This tragedy ended with seventeen students and
staffers killed.16 More peace officers may choose to take
an overly cautious path that could result in lives lost if
the law enforcement community believes that the courts
will not guard them from liability for reasonable actions
taken to protect the public.
C.
A Reasonable Officer Would Be Cognizant of
the Unpredictable Danger to Law Enforcement
The central mission of police work is to protect the public
and preserve the peace within the officer’s jurisdiction. Tex.
Code Crim. Pro. Ann. art. 2.13. This mission is primarily
carried out by peace officers proactively protecting their
jurisdictions from individuals who choose to commit acts
of violence against others. As such, policing is inherently
dangerous.
The FBI reports that 510 American peace officers were
“feloniously killed” in the line of duty from 2009 to 2018.17 Of
these 510 officers, 471 officers were killed with a firearm, 368
were wearing body armor, 343 were assigned to vehicle patrol
at the time of their death, and 175 were killed with firearms
15. Id.
16. Id.
17. Federal Bureau of Investigation, Law Enforcement Officers
Killed and Assaulted, 2009-2018, U.S. Department of Justice, https://
ucr.fbi.gov/leoka/2018/tables/table-1.xls
16
when the officer was less than five feet from the offender.18
These statistics illustrate the unforeseen and unpredictable
nature of deadly action taken against police. Many of these
incidents began as seemingly routine police matters, but
quickly devolved into dangerous encounters. 19
Because “use of force” training and policy is crafted to
specifically comply with clearly established law, the Fifth
Circuit ruling in this case suggests a new policy standard
that an officer “may not use deadly force—without prior
warning—against an armed, distraught suspect who, with
finger in the pistol’s trigger, posed ‘no threat’ while turning
toward an officer ten to twenty feet away.” Pet. App. 41a.
This diminution of qualified immunity would limit officers’
ability to reasonably defend themselves and others in an
already dangerous line of work, and discourage individuals
from entering the police service.
“In the wide gap between acceptable and excessive uses
of force, however, immunity serves its important purpose of
encouraging officers to enforce the law, in ‘tense, uncertain
and rapidly evolving’ split second situations, rather than
stand down and jeopardize community safety.” Pet. App. 44a.
Police officers risk their lives to protect society, and they do
18. Federal Bureau of Investigation, Law Enforcement
Officers Killed and Assaulted, U.S. Department of Justice, https://
www.fbi.gov/services/cjis/ucr/publications
19. See also Plumhoff v. Rickard, 572 U.S. 765 (2014) (traffic
stop for missing headlight); City of Los Angeles v. Heller, 475 U.S.
796 (1986) (traffic stop for suspected DWI); Scott v. Harris, 550
U.S. 372 (2007) (traffic stop for speeding); Salazar-Limon v. City
of Houston, 826 F.3d 272 (5th Cir. 2016) (traffic stop for speeding
and suspected DWI), Terry v. Ohio, 392 U.S. 1 (1968) (Investigatory
stop of suspicious circumstances)
17
so despite an awareness of the unpredictable dangers that
may arise.
II. An Erosion of Qualified Immunity Has Societal
Consequences
Qualified immunity has been a frequent legal issue
before this Court. Fifteen times in eight years, this Court
has reversed qualified immunity denials. 20 The doctrine
of qualified immunity has been attacked by critics as
providing too much protection to reckless officers and
as having no footing in text or history. 21 Yet, even ardent
opponents against qualified immunity recognize that
20. See City of Escondido v. Emmons, 139 S. Ct. 500 (2019)
(summary reversal); Kisela v. Hughes, 138 S. Ct. 1148 (2018)
(summary reversal); District of Columbia v. Wesby, 138 S. Ct. 2561
(2018); White v. Pauly, 137 S. Ct. 548 (2017) (summary reversal);
Mullenix v. Luna, 136 S. Ct. 305 (2015) (summary reversal);
Taylor v. Barkes, 575 U.S. 822 (2015) (summary reversal); City &
County of San Francisco v. Sheehan, 575 U.S. 600 (2015); Carroll
v. Carman, 574 U.S. 13 (2014) (summary reversal); Plumhoff v.
Rickard, 572 U.S. 765 (2014); Wood v. Moss, 572 U.S. 744 (2014);
Stanton v. Sims, 571 U.S. 3 (2013) (summary reversal); Reichle v.
Howards, 566 U.S. 658 (2012); Ryburn v. Huff, 565 U.S. 469 (2012)
(summary reversal); Messerschmidt v. Millender, 565 U.S. 535
(2012); Ashcroft v. al–Kidd, 563 U.S. 731 (2011).
21. E.g., Erwin Chemerinsky, How the Supreme Court Protects
Bad Cops, N.Y. T imes (Aug. 27, 2014), http://nyti.ms/1ASeUKc
(arguing that the Supreme Court’s qualified immunity decisions
“mean that the officer who shot Michael Brown and the City of
Ferguson will most likely never be held accountable in court”);
William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L.
Rev. 45, 46 (2018) (arguing that the Supreme Court’s qualified
immunity decisions are “far removed from ordinary principles of
legal interpretation”).
18
qualified immunity is an important public policy, worthy
of close and careful attention, and that is particularly
so when, like here, exigent circumstances were present.
Pet. App. 63a. This is true because “[p]olicemen on the
beat are exposed, in the service of society, to all the risks
which the constant effort to prevent crime and apprehend
criminals entails. Because these people are literally the
foot soldiers of society’s defense of ordered liberty, the
State has an especial interest in their protection.” Roberts
v. Louisiana, 431 U.S. 633, 646–47 (1977) (Blackmun,
J. dissenting). If the critics of qualified immunity are
dissatisfied, they may go to Congress for relief. Kimble
v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). In
1996, Congress amended Section 1983 and took no action
to address, reform, or eliminate the defense of qualified
immunity. See Federal Courts Improvement Act, 110 Stat.
3847, 3853. Dissidents against qualified immunity should
make arguments for change with Congress, not this Court.
As aptly observed in Judge Wilkinson’s dissent to a
denial of a Fourth Circuit En Banc rehearing on a qualified
immunity dispute in Harris v. Pittman:
At some point a pattern of Court decisions
becomes a drumbeat, leaving one to wonder
how long it will take for the Court’s message
to break through…The majority has used the
summary judgment standard once more to
eviscerate qualified immunity protections. In
the majority’s hands, every dispute becomes
genuine and every fact becomes material.
Qualified immunity fades to the end of every
discussion, its values reserved for lip service
until little enough is left. 927 F.3d 266, 283 (4th
Cir. 2019) (Wilkinson, J. dissenting).
19
This Court’s drumbeat has become “increasingly
unsubtle”: qualified immunity must be preserved for
the good of society. Pet. App. 59a. There could be high
potential societal costs created by the lower courts’
misapplications of the qualified immunity standard.
A.
An Erosion of Immunity Could Cause a Chilling
Effect on the Law Enforcement Workforce
Throughout the creation and evolution of this
immunity standard, this Court has frequently recognized
the ramifications to local law enforcement that would
result from an erosion of qualified immunity. A review
of the financial considerations when hiring and retaining
quality police officers highlights the delicate struggle
currently faced by local governments even with immunity
intact. These taxpayer costs would undoubtedly grow with
a weakened immunity protection for police.
As numerous reports and legal authorities have noted,
the law enforcement industry is in the midst of a hiring
crisis. There is a nationwide discussion among industry
leaders on how to combat this problem. Approximately
sixty-three percent of law enforcement respondents to a
2019 survey said that the number of applicants applying
for full-time officer positions has either “decreased
significantly” or “decreased slightly” compared to five
years ago. 22 In fact, many departments have chosen to
expand their minimum standards in education, fitness,
and past drug use in order to enlarge the candidate pool. 23
22. Police Executive Research Forum, The Workforce Crisis,
and What Police Agencies Are Doing About It (September 2019),
https://www.policeforum.org/assets/WorkforceCrisis.pdf
23. Id.
20
Nationally, the number of law enforcement employees
is declining. Between 2013 and 2016, the number of fulltime peace officers decreased from approximately 725,000
officers to 701,000. 24 This picture is incomplete, however,
until increases in the country’s population are factored
into the analysis. The number of full-time sworn officers
per 1,000 U.S. residents has been declining over two
decades, from 2.42 officers per 1,000 residents in 1997 to
2.17 officers per 1,000 in 2016. 25 This is an eleven percent
reduction in peace officer staffing. 26
Unfortunately, the problems with officer retention
begin almost immediately upon the hiring of new officers.
A study of 446 recruits entering Arizona police academies
found that thirteen percent dropped out before completing
the academy and an additional twenty-two percent
dropped out during field training or before completing
their first year on a force, making a combined thirty-five
percent dropout rate. 27 Put differently, if there are ten
officers in one recruit class, nine will make it through the
training academy and six will still be a police officer in
the second year.
24. Shelley Hyland, Full-Time Employees in Law Enforcement
Agencies, 1997-2016, U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics (2018), https://www.bjs.gov/
content/pub/pdf/ftelea9716.pdf
25. Id.
26. Id.
27. Jeremy M. Wilson, Police Recruitment and Retention for
the New Millennium: the State of Knowledge, RAND Center on
Quality Policing (2010), https://www.rand.org/content/dam/rand/
pubs/monographs/2010/RAND_MG959.pdf
21
When a law enforcement department is unable to
retain its officers’ long term, the costly and time intensive
training requirements have fiscal impacts. An average
police academy lasts twenty-one weeks. 28 There is usually
another thirteen weeks of on-the-job training with a
specially trained “field training officer” who is continually
supervising the new officer while the new officer makes
citizen contacts. 29 On average, it takes nine months before
this new officer is ready to act unsupervised in the field.
Police departments invest a significant amount of time and
money to train each officer, which is unlike many other
professions that require a certain level of education and/or
training at the applicant’s expense prior to employment.
A quality candidate may be even less likely to apply
for a career in law enforcement if that person knows that
reasonable actions taken may not be given immunity
protection. The Harris v. Pittman dissent discusses this
conundrum:
Police work, like the calling of many a skilled
tradesman, has often been handed down through
the generations in America, but self respect
depends in part upon societal respect, and that
for officers is sadly ebbing. Court decisions
that devalue not only police work but the very
safety of officers themselves risk severing those
bonds of generational transmission that have so
28. Brian Reaves, State and Local Law Enforcement Training
Academies, 2013, U.S. Department of Justice, The Bureau of Justice
Statistics (July 2016), https://www.bjs.gov/content/pub/pdf/slleta13.
29. Id.
22
sustained the working classes of our country.
It is a shame, because professional police work
helps to bridge the gulf between the haves and
have nots in a community and protects our most
vulnerable and dispossessed populations. Law
must sanction officers who would abuse their
power or disregard controlling law; it should
not scare off those who worry that no matter
what they do or whom they protect, they cannot
avoid suits for money damages. 927 F.3d 266,
286–87 (4th Cir. 2019) (Wilkinson, J. dissenting)
Lawsuits deter “able citizens from acceptance of public
office,” and imposes enormous burdens and stress on
officers. Harlow, 457 U.S. at 814. Even if the employing
agency indemnifies the officer, the officer must live with
the stress and uncertainty of litigation until the allegations
are dismissed. A lawsuit is, after all, a public outcry
alleging that this officer acted improperly, and this is a
heavy professional burden to bear. 30 Without qualified
immunity, many smart, talented people will avoid entering
law enforcement, and the police workforce would be left
with only the “most resolute or the most irresponsible.”
Crawford-El v. Britton, 523 U.S. 574, 590 n.12 (1998).
It is in the public’s interest to maintain these immunity
protections to prevent this outcome.
In order to train recruits in a manner consistent with
the Fifth Circuit’s majority opinion, a police academy
would now have to train the recruits that an officer
“confronting armed, mentally disturbed suspects in close
30. See Kevin Gilmartin, Emotional Survival for Law
Enforcement (2002).
23
quarters must invariably stand down until they have
issued a warning and awaited the suspects’ reaction or are
facing the barrel of a gun.” Pet. App. 52a. It is not difficult
to discern the negative effects of such a standard on the
hiring and retention of police officers, and the consequent
negative societal effects. Many recruits will rethink their
career path when they appreciate the danger inherent
with this new standard.
It takes $58,000, as a 2008 national average, to train
one peace officer. 31 Combining that fact with the 701,000
officers nationally, even a 1% increase in police turnover
resulting from a decrease in officer immunity protections
would result in a national loss of $406,580,000 of taxpayer
dollars invested into peace officer training.
Without question, if police officers abuse their position
of power in society, the law should hold them accountable
for those overreaching actions. An aggrieved individual
should be able to bring a lawsuit against an officer that is
“plainly incompetent” or “knowingly violate[s] the law.”
Malley, 475 U.S. at 341. On the other hand, this Court
has recognized that an officer should have summary
judgment protection for acting reasonably, as there are
high societal costs of subjecting an official to a burdensome
and stressful trial proceeding. Qualified immunity is the
“best attainable accommodation of competing values.”
Harlow, 457 U.S. at 814. Judge Jones’ Fifth Circuit dissent
describes the public policy reasons behind this immunity
standard:
31. Jeremy M. Wilson, Police Recruitment and Retention
for the New Millennium: the State of Knowledge, RAND Center
on Quality Policing (2010), https://www.rand.org/content/dam/
rand/pubs/monographs/2010/RAND_MG959.pdf
24
The breadth of this shield represents a
deliberate balance between affording a damages
remedy for constitutional abuses and the social
and personal costs inflicted by meritless claims.
Anderson v. Creighton, 483 U.S. 635, 638, 107
S. Ct. 3034, 3038 (1987). The costs to society
include the costs of litigation, the diversion of
limited public resources, the deterrence of able
people from going into public service, and the
danger that fear of being sued will discourage
officials from vigorously performing their jobs.
Id.; Harlow v. Fitzgerald, 457 U.S. 800, 814,
102 S. Ct. 2727, 2736 (1982). The devastating
costs imposed by unfounded lawsuits on
officers otherwise entitled to immunity are
reputational, potentially employment-related,
financial and emotional. Pet. App. 36a.
The current workforce crisis facing the law enforcement
industry makes it essential to preserve existing police
resources and to avoid the loss of financial investment
attendant to additional officers leaving police service. Any
erosion in qualified immunity affects these interests and
would certainly come at a taxpayer cost. This Court must
continue to support law enforcement by allowing them
the “breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft, 563
U.S. at 743. “And absent plain incompetence or intentional
violations, qualified immunity must attach, because the
“social costs” of any other rule are too high.” Pet. App. 75a.
25
CONCLUSION
This Court should grant certiorari and reverse the
judgment of the Court of Appeals.
Respectfully submitted,
Mike Thompson, Jr.
Associate General Counsel
Texas A ssociation
of Counties
1210 San Antonio Street
Austin, TX 78701
(512) 478-8753
Megan Suarez Mahan
City Attorney
Counsel of Record
Mark E. Dempsey
Deputy City Attorney
City of Grand Prairie
300 West Main Street
Grand Prairie, TX 75050
(972) 237-8026
mmahan@gptx.org
Counsel for Amici Curiae
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