Amicus Curiae Brief — Donald E. Craig, et al., Petitioners v. Janet Turner O'Kelley, Individually and as Personal Representative of the Estate of John Harley Turner, et al.

No. 19-956

In the

Supreme Court of the United States

__________________

DONALD E. CRAIG, ET AL.,

Petitioners,

v.

JANET TURNER O’KELLEY, INDIVIDUALLY AND AS

PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN

HARLEY TURNER, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

__________________

BRIEF OF AMICUS CURIAE INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION IN

SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

__________________

CHARLES W. THOMPSON

CHRISTOPHER D. BALCH

AMANDA KELLAR KARRAS

Counsel of Record

BALCH LAW GROUP

ERICH EISELT

830 Glenwood Ave., SE

INTERNATIONAL MUNICIPAL

Suite 510-220

LAWYERS ASSOCIATION

Atlanta, GA 30316

51 Monroe Street, Suite 404

(404) 963-0045

Rockville, MD 20850

chris@balchlawgroup.com

(202) 466-5424

akellar@imla.org

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE DECISION BY THE ELEVENTH CIRCUIT

IGNORED THIS COURT’S CLEAR PRECEDENT ON

QUALIFIED IMMUNITY AND THIS COURT SHOULD

GRANT CERTIORARI AND SUMMARILY REVERSE . . . 5

A. The Eleventh Circuit Should be Reversed

Because it Conducted its Analysis of “Clearly

Established” Law at Too High a Level of

Generality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The Circuit Court Applied the Provocation

Rule Rejected by this Court in County of Los

Angeles v. Mendez . . . . . . . . . . . . . . . . . . . . . 10

C. The Eleventh Circuit’s Failure to Consider

the Reasonableness of the Officers’ Conduct

under Tennessee v. Garner and Graham v.

Connor Demands Reversal . . . . . . . . . . . . . . 12

II. IN THE ALTERNATIVE, THIS COURT SHOULD

GRANT CERTIORARI BECAUSE THE ELEVENTH

C IRCUIT ’ S D ETERMINATION OF “C LEARLY

ESTABLISHED” NINE DAYS AFTER ITS ORIGINAL

DECISION IGNORES THE PRACTICAL REALITIES OF

LOCAL GOVERNMENT LAW ENFORCEMENT . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF AUTHORITIES

CASES

Affiliated Capital Corp. v. City of Houston,

735 F.2d 1555 (5th Cir. 1984). . . . . . . . . . . . . . . 16

Arebaugh v. Dalton,

730 F.2d 970 (4th Cir. 1984). . . . . . . . . . . . . . . . 16

Arizona v. Gant,

556 U.S. 332 (2009). . . . . . . . . . . . . . . . . . . . . . . 15

Atwater v. City of Lago Vista,

532 U.S. 318 (2001). . . . . . . . . . . . . . . . . . . . . . . 14

Brosseau v. Haugen,

543 U.S. 194 (2004). . . . . . . . . . . . . . . . . . . . . . . . 5

Bryan v. United States,

919 F.3d 356 (3d Cir. 2019) . . . . . . . . . . . . . 16, 19

Carroll v. United States,

267 U.S. 132 (1925). . . . . . . . . . . . . . . . . . . . 12, 21

City & Cty. of S.F. v. Sheehan,

575 U.S. 600 135 S. Ct. 1765 (2015). . . . . . . . 9, 10

County of Los Angeles v. Mendez,

137 S. Ct. 1538 (2017). . . . . . . . . . . . . . . . 3, 10, 11

Dist. of Columbia v. Wesby,

138 S. Ct. 577 (2018). . . . . . . . . . . . . . . . . . . . . . . 3

Florida v. Jardines,

569 U.S. 1 (2013). . . . . . . . . . . . . . . . . . . . . . . . . 13

Gerstein v. Pugh,

420 U.S. 103 (1975). . . . . . . . . . . . . . . . . . . . . . . 13

iii

Graham v. Connor,

490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . 3, 10, 12

Harlow v. Fitzgerald,

457 U.S. 800 (1984). . . . . . . . . . . . . . . . . . . . . . 2, 4

Hope v. Pelzer,

536 U.S. 730 (2002). . . . . . . . . . . . . . . . . . . . . . . . 5

Kentucky v. King,

563 U.S. 452 (2011). . . . . . . . . . . . . . . . . . . . . . . 15

Kisela v. Hughes,

138 S. Ct. 1138 (2018). . . . . . . . . . . . . . . . . . . 5, 17

Malley v. Briggs,

475 U.S. 335 (1986). . . . . . . . . . . . . . . . . . . . . . . . 2

Martinez v. City of Clovis,

943 F.3d 1260 (9th Cir. 2019). . . . . . . . . . . . . . . 21

Mendez v. County of Los Angeles,

813 F.3d 1178 (9th Cir. 2016). . . . . . . . . . . . 10, 11

Moore v. Pederson,

806 F.3d 1036 (11th Cir. 2015). . . . . . . . . . passim

Mullinax v. Luna,

136 S. Ct. 305 (2015). . . . . . . . . . . . . . . . . . . . 9, 17

New York v. Belton,

453 U.S. 454 (1981). . . . . . . . . . . . . . . . . . . . . . . 15

O’Kelley v. Craig,

781 F. App’x 888 (11th Cir. 2019) . . . . . . . passim

Pearson v. Callahan,

555 U.S. 223 (2009). . . . . . . . . . . . . . . . . . . . . 9, 15

iv

Saucier v. Katz,

533 U.S. 194 (2001). . . . . . . . . . . . . . . . . . . . . . . . 9

Shumpert v. City of Tupelo,

905 F.3d 310 (5th Cir. 2018). . . . . . . . . . . . . . . . 21

Tennessee v. Garner,

471 U.S. 1 (1985). . . . . . . . . . . . . . . . . . . . . . 12, 14

Tolan v. Cotton,

572 U.S. 650 (2014). . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Watson,

423 U.S. 411 (1976). . . . . . . . . . . . . . . . . . . . . . . 12

STATUTES

Ga. Code Ann. § 16-5-21. . . . . . . . . . . . . . . . . . . . . . . 7

Ga. Code Ann. § 16-11-37. . . . . . . . . . . . . . . . . . . . 7, 8

OTHER AUTHORITIES

“Georgia School District Reverses Its Decision on

Transgender Bathroom Policy After Receiving

Death Threats,” Slate.com, Oct. 17, 2019,

https://slate.com/news-and-politics/2019/10/georg

ia-school-transgender-bathroom-policy-deaththreats.html . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

“Number of Municipal Governments & Population

Distribution,” https://www.nlc.org/number-ofmunicipal-governments-population-distribution

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

v

Brian A. Reaves, Local Police Departments, 2013:

Personnel, Policies, and Practices, U.S.

Department of Justice Office of Justice

Programs Bureau of Justice Statistics, Table 3,

available at: http://bit.ly/2wfzZXu . . . . . . . . . . . . 4

Seattle Police Department Manual, Title 6-”Arrestssearch and seizure,” available at www.seattle.go

v/police-manual/title-6---arrests-search-and-seiz

ure/6180---searches-general . . . . . . . . . . . . . . . . 22

United States Executive Office of the President,

“Border Security-2020 Budget Fact Sheet,”

https://www.whitehouse.gov/wp-content/uploads/

2019/03/FY20-Fact-Sheet_Immigration-BorderSecurity_FINAL.pdf . . . . . . . . . . . . . . . . . . . . . . 19

www.pickensgasheriff.com/wp-content/uploads/

2020/02/December-2019-Financials.pdf. . . . . . . 20

1

INTEREST OF AMICUS CURIAE1

The International Municipal Lawyers Association

(“IMLA”) has been an advocate and resource for local

government attorneys since 1935. Owned solely by its

more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters. IMLA’s

mission is to advance the responsible development of

municipal law through education and advocacy by

providing the collective viewpoint of local governments

around the country on legal issues before the Supreme

Court of the United States, the United States Courts of

Appeals, and State supreme and appellate courts.

Members of IMLA regularly advise municipalities

and their law enforcement agencies on issues

pertaining to the Fourth Amendment and qualified

immunity. Given the Eleventh Circuit’s unrealistic

ruling that effectively requires IMLA’s members,

regardless of their size and resources, to immediately

and continuously review case law pertaining to law

enforcement and provide up to the minute training and

policy guidance to their police departments, IMLA has

a strong interest in this dispute.

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. IMLA has

obtained the written consent of all parties to file this Brief

pursuant to Supreme Court Rules 37.2(a) and 37.3(a). Notice of the

intent to file this Brief was sent to all parties on February 20,

2020.

2

IMLAs is equally concerned with the need to protect

police officers charged with enforcing the nation’s laws

and ordinances from the second-guessing of their

reasonable actions and choices in the heat of a swiftly

evolving situations. IMLA is committed to preserving

qualified immunity from further erosion as it ensures

that reasonable and well-trained officers can perform

their duties without risking the financial, reputational,

and administrative burdens associated with defending

a civil rights lawsuit. As a representative of local

governments committed to effective and responsible

policing and committed to providing training for police

officers, IMLA urges this Court to grant certiorari or in

the alternative, to summarily reverse the Court of

Appeals’ decision.

SUMMARY OF THE ARGUMENT

The hallmark of qualified immunity is fair notice to

public officials that “what they are doing in the

circumstances” violates the law. Harlow v. Fitzgerald,

457 U.S. 800 (1984); Malley v. Briggs, 475 U.S. 335

(1986). In this case, the Eleventh Circuit held for the

first time that a panel decision, Moore v. Pederson, 806

F.3d 1036, 1061 (11th Cir. 2015), with significant

factual dissimilarities to those at issue here, decided a

mere nine days prior the conduct in question, was a

sufficient amount of time to provide notice to law

enforcement officers in rural Georgia that seeking to

arrest a suspect within the curtilage of his home

without a warrant who they had probable cause to

believe had committed a violent felony was

unconstitutional. This Court should summarily reverse

the lower court based on its failure to follow this

3

Court’s precedent and repeated admonitions that lower

courts should not “define clearly established law at a

high level of generality, since doing so avoids the

crucial question whether the official acted reasonably

in the particular circumstances that he or she faced.”

Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).

Compounding its errors, the Eleventh Circuit also

ignored this Court’s opinion in County of Los Angeles v.

Mendez, 137 S. Ct. 1538 (2017), in which this Court

held that a single alleged constitutional violation will

not create liability for some other subsequent alleged

violation under what the Ninth Circuit dubbed, the

“provocation rule.” Here the Eleventh Circuit found

these officers could be held liable for their use of force

which caused the death of Mr. Turner without

analyzing whether their response to his opening fire on

them was objectively reasonable under Graham v.

Connor, 490 U.S. 386, 388 (1989). Indeed, the court

wholly fails to even cite to Graham and instead entirely

focuses the question on whether the initial trespass

onto the decedent’s property seeking to arrest him was

lawful. The court omits from its analysis the fact that

Mr. Harley shot his firearm at the officers, which

prompted them to open fire and kill him. This is

precisely the “provocation rule” that this Court rejected

in Mendez and justifies this Court summarily reversing

the Eleventh Circuit for reconsideration under the

proper legal standard.

Similarly, the Eleventh Circuit failed to properly

analyze whether the conduct of these officers was

lawful. These officers possessed probable cause to

investigate either of two violent crimes under Georgia

4

law. This Court’s precedent makes clear that officers

have the authority to conduct an investigation when

they have probable cause. On the basis of the

complaint, these officers acted in an objectively

reasonable manner, justifying this Court reversing the

Eleventh Circuit.

In addition to the stark departure from this Court’s

clear precedent, public policy supports the application

of qualified immunity to this case. According to the

U.S. Department of Justice, approximately 35% of law

enforcement officers serve communities of less than

50,000 citizens.2 Police departments are stretched to

the breaking point and instantaneous dissemination of

legal cases is entirely unrealistic. The unprecedented

and unreasonable conclusion by the Eleventh Circuit

that a panel decision of that court “clearly established”

the law immediately after it was decided flies in the

face of this Court’s decision in Harlow, squarely splits

from the Third and Fifth Circuits, and is entirely

divorced from the realities of providing training and

education to law enforcement in the nation’s small and

rural communities. Amicus agrees with the petitioner

that this Court should grant certiorari to provide

clarity as to how much notice is required to clearly

establish the law and submits that additional policy

concerns underscore the need for this Court’s

intervention.

2

See Brian A. Reaves, Local Police Departments, 2013: Personnel,

Policies, and Practices, U.S. Department of Justice Office of Justice

Programs Bureau of Justice Statistics, Table 3, available at:

http://bit.ly/2wfzZXu (last visited Feb. 27, 2020).

5

ARGUMENT

I. THE DECISION BY THE ELEVENTH CIRCUIT

IGNORED THIS COURT’S CLEAR PRECEDENT ON

QUALIFIED IMMUNITY AND THIS COURT SHOULD

GRANT CERTIORARI AND SUMMARILY REVERSE

A. The Eleventh Circuit Should be Reversed

Because it Conducted its Analysis of

“Clearly Established” Law at Too High a

Level of Generality

In stripping these officers of the protections of

qualified immunity, the Eleventh Circuit relied on

another panel decision that was only nine days old at

the time these officers encountered Mr. Turner. The

situation faced by these officers is so materially

different from that addressed in Moore v. Pederson, 806

F.3d 1036 (11th Cir. 2015), however, that it could not

have provided fair warning to them that the law

governing their conduct was “clearly established.”

Kisela v. Hughes, 138 S. Ct. 1138, 1152 (2018);

Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Hope v.

Pelzer, 536 U.S. 730, 731 (2002). A closer review of

Moore reveals the multiple material factual

dissimilarities between that case and the situation

these officers faced, and therefore the reversible error

in the Eleventh Circuit’s analysis.

First, the officer in Moore was confronting a nonviolent situation—he had responded to a call about a

parking lot altercation which the caller explicitly

characterized as non-violent. Moore, 806 F.3d at 1040.

In contrast, the Pickens County officers were

responding to a threat of violence by an unseen agitator

6

that hunters lawfully on adjoining property were

trespassing and would suffer bodily harm. O’Kelley v.

Craig, 781 F. App’x 888, 891 (11th Cir. 2019).

Second, in Moore, the person who opened the door

after the officer knocked was not armed, whether with

a firearm or anything else—he was standing in arm’s

reach of the officer, wearing nothing more than a towel,

and remained at the doorway during the entire dialog.

Moore, 806 F.3d at 1040. In contrast, the Pickens

County officers confronted a man some distance away,

brandishing a pistol, who sometimes carried the pistol

in his hand, who refused to put his gun down despite

repeated requests by law enforcement to do so, and who

disappeared into a residence and reemerged, at one

point also carrying a flashlight. Craig, 781 F. App’x

891-92. There was no way to know what other

weapons he might have been secreting. Id.

Third, the Moore officer instituted an arrest shortly

after arriving, without any specific incident that

required action—there was no evidence of the situation

spiraling out of control and no imminent danger to the

officer or anyone else. Moore, 806 F.3d at 1040. In

contrast, the Pickens County officers had already

expended approximately 30 minutes simply trying to

get an increasingly agitated and obviously

unpredictable suspect to drop his weapon, and had

placed an unarmed colleague directly in his line of fire

in an effort to defuse the situation. Craig, 781 F. App’x

892.

Fourth, the officer in Moore had no arguable

probably cause to arrest, or even to conduct a Terry

stop—he was responding to allegations of a now-ended

7

parking lot argument. Moore, 806 F.3d at 1040. The

grounds for arrest he incorrectly relied upon arose only

after the man in the doorway was noncompliant. Id. In

contrast, the Pickens County officers were responding

to an armed, unstable, potentially dangerous suspect

who had already committed various violations of

Georgia criminal law and had refused repeated orders

to put his weapon down. Craig, 781 F. App’x 891-92.3

3

Ga. Code Ann. § 16-5-21 (aggravated assault) provides, in

pertinent part:

(a) A person commits the offense of aggravated assault

when he or she assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or

instrument which, when used offensively against a person,

is likely to or actually does result in serious bodily injury;

(3) With any object, device, or instrument which, when

used offensively against a person, is likely to or actually

does result in strangulation; or

(4) A person or persons without legal justification by

discharging a firearm from within a motor vehicle toward

a person or persons.

Ga. Code Ann. § 16-11-37 (terroristic threats) provides in pertinent

part:

(b)(1) A person commits the offense of a terroristic threat

when he or she threatens to:

(A) Commit any crime of violence;

(B) Release any hazardous substance; or

(C) Burn or damage property.

(2) Such terroristic threat shall be made:

(A) With the purpose of terrorizing another;

(B) With the purpose of causing the evacuation of a

building, place of assembly, or facility of public

transportation;

(C) With the purpose of otherwise causing serious

public inconvenience; or

8

Fifth, the Moore officer physically reached into the

residence to handcuff the suspect, again on

questionable grounds. Moore, 806 F.3d at 1040. In

contrast, the Pickens County officers simply crossed

into the edge of Mr. Turner’s yard and never moved

beyond the curtilage. Craig, 781 F. App’x 892.

Finally, and most instructive, the Court in Moore

relied on its own precedent—premised on virtually

identical legal indicia--to reach its conclusion that

the officer had transgressed “clearly established” law:

[I]n McClish v. Nugent, 483 F.3d 1231 (11th Cir.

2007), we held that an officer who, without a

warrant, or probable cause along with exigent

circumstances or consent, “reached into [a]

house, grabbed [the plaintiff], and forcibly pulled

him out onto the porch” in order to arrest him,

violated the plaintiff’s Fourth Amendment

rights.

Moore, 803 F.3d at 1043-1044.

To reiterate the often-repeated maxim, “facts

matter.” Against this backdrop, it is remarkable that

(D) In reckless disregard of the risk of causing the

terror, evacuation, or inconvenience described in

subparagraph (A), (B), or (C) of this paragraph.

…

(d)(1) A person convicted of the offense of a terroristic

threat shall be punished as a misdemeanor; provided,

however, that if the threat suggested the death of the

threatened individual, the person convicted shall be guilty

of a felony and shall be punished by a fine of not more than

$1,000.00, imprisonment for not less than one nor more

than five years, or both.

9

the Eleventh Circuit could contort Moore into a “clearly

established” rule applicable to the Pickens County

officers (even if nine days was enough notice to the

officers). Mullinax v. Luna, 136 S. Ct. 305, 308 (2015);

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

This Court has repeatedly admonished lower courts

not to seek to “define the clearly established at a high

level of generality.” Mullinax, 136 S. Ct. at 308.

Specificity is especially important in the Fourth

Amendment context because “it is sometimes difficult

for an officer to determine how the relevant legal

doctrine [may] apply to the factual situation the officer

confronts.” Saucier v. Katz, 533 U.S. 194, 205 (2001).

“The salient question … is whether the state of the law

at the time of an incident provided ‘fair warning’ to the

defendants ‘that their alleged conduct was

unconstitutional.’” Tolan v. Cotton, 572 U.S. 650, 656

(2014) (quoting Hope, 536 U.S. at 741)).4 The Eleventh

Circuit’s fundamental error was to take a factually

distinguishable case and apply it at a high level of

generality without regard to the particular

circumstances faced by the officers in the moment.

Given the societal interests in preserving qualified

immunity, that error justifies the Court granting

certiorari and summarily reversing. See City & Cty. of

4

The factual dissimilarities between the two cases underscore the

need for more time for proper legal analysis of case law before a

case can be considered “clearly established” such that qualified

immunity would not apply. Even assuming arguendo that these

facts were similar enough to “clearly establish” the law for the

purposes of qualified immunity (which they are not), local

government attorneys would then need time to disseminate that

information to thousands of police officers in the Eleventh Circuit.

10

S.F. v. Sheehan, 575 U.S. 600 n.3, 135 S. Ct. 1765, 1774

(2015) (noting because of the importance of qualified

immunity “to society as a whole… the Court often

corrects lower courts when they wrongly subject

individual officers to liability.”)

B. The Circuit Court Applied the Provocation

Rule Rejected by this Court in County of

Los Angeles v. Mendez

In County of Los Angeles v. Mendez, 137 S. Ct. 1539

(2017), this Court unanimously rejected the Ninth

Circuit’s “provocation rule.” As described by this Court,

the provocation rule applies to render the officer’s use

of force unreasonable as a matter of law when “the

officer intentionally or recklessly provoked a violent

response” and “that provocation is an independent

constitutional violation.” 137 S. Ct. at 1545. Under this

now-invalidated rule, a reasonable use of force by the

officers became unreasonable because of an earlier

Fourth Amendment violation. Mendez v. County of Los

Angeles, 813 F.3d 1178, 1193 (9th Cir. 2016). Without

so much as a nod in the direction of this Court’s

precedent, the Eleventh Circuit committed the same

error as the Ninth Circuit, two years after this Court

had rejected this rule.

It is undisputed that Mr. Turner drew his pistol and

fired at officers causing them to return fire. Craig, 781

F. App’x at 892. Similarly, it is undisputed that

Tennessee v. Garner authorizes police officers to defend

themselves when fired upon. 490 U.S. at 11-12. Mr.

Turner’s conduct in drawing and returning his pistol to

its holster, refusing to obey officer’s commands to

disarm, acting erratically, and having threatened

11

people in the woods all justified the officers’ continued

efforts to control the scene and disarm a potentially

dangerous person. The Eleventh Circuit’s conclusion

that the officers’ alleged unjustified intrusion beyond

the fence and gate created potential liability for the

death of Mr. Turner who opened fire on the officers

with his pistol is the same error that the Ninth Circuit

had made in Mendez. As this Court recognized, officers

may have committed a Fourth Amendment violation by

entering the shack at the back of the house without a

warrant, but when they observed Mendez holding the

BB gun, they acted reasonably in firing their weapons.

Mendez, 137 S. Ct. at 1547. As Justice Alito simply put

it, “[a] different Fourth Amendment violation cannot

transform a later, reasonable use of force into an

unreasonable seizure.” Id. at 1544.

In this case, the Eleventh Circuit held that because

the officers allegedly improperly crossed into the

curtilage of the home to conduct an investigation of a

crime, the officers were liable for all acts, including the

shooting of Mr. Turner that was indisputably a

justified use of force given that he shot at the officers

after they tried to disarm him with non-lethal force.

That conclusion cannot stand in light of Mendez, and

this Court should summarily reverse and require the

Eleventh Circuit to reconsider its analysis under the

proper constitutional standard.

12

C. The Eleventh Circuit’s Failure to Consider

the Reasonableness of the Officers’

Conduct under Tennessee v. Garner and

Graham v. Connor Demands Reversal

In Tennessee v. Garner, 471 U.S. 1 (1985), this

Court addressed the circumstances under which the

use of deadly force by law enforcement officers was

justified. The Court held that the use of deadly force

would be authorized to “seize” a person under the

Fourth Amendment so long as officers possessed a

reasonable belief that the subject had committed a

crime “involving the infliction or threatened infliction

of serious physical harm.” Garner, 471 U.S. 11-12.

Whether the use of force is appropriate is determined

by the Fourth Amendment’s objectively reasonableness

standard. Graham v. Connor, 490 U.S. 386, 388 (1989).

The Eleventh Circuit took no notice of Garner or

Graham, failing to even mention either in passing,

while denying these officers qualified immunity for this

encounter with Mr. Turner that ultimately led to Mr.

Turner’s death.

It should be beyond dispute that a police officer may

seize a person if he has probable cause to believe that

person committed a crime. United States v. Watson, 423

U.S. 411 (1976); Carroll v. United States, 267 U.S. 132,

154 (1925). As the Court articulated in Watson, “[t]he

necessary inquiry, therefore, is not whether there was

a warrant or whether there was time to get one, but

whether there was probable cause for the arrest.”

Watson, 423 U.S. at 417. This Court has recognized

that always requiring a warrant “would constitute an

intolerable handicap for legitimate law enforcement.”

13

Gerstein v. Pugh, 420 U.S. 103, 113 (1975). Here, there

is ample reason admitted in Plaintiffs’ complaint and

relied upon by the Eleventh Circuit to find probable

cause for the arrest of Mr. Turner.

The Eleventh Circuit relied heavily on language

from this Court’s opinion in Florida v. Jardines, 569

U.S. 1 (2013), that the home is a first among equals for

purposes of Fourth Amendment analysis. Craig, 781

F. App’x at 894. In Jardines, there is no indication that

the officers possessed actual (much less arguable)

probable cause that a crime had been or was actively

being committed within the residence. They possessed

merely an “unverified tip” that marijuana was being

grown at the residence. Jardines, 569 U.S. at 3. Based

on the tip alone, the officers took a drug sniffing dog

onto the porch of the residence and sought to determine

if there was the odor of marijuana present. Id. at 3-4.

When the dog alerted, officers sought and obtained a

warrant and a subsequent search pursuant to that

warrant discovered growing marijuana plants. Id. at

4. Neither those facts, nor this Court’s analysis,

justifies the Eleventh Circuit’s conclusion in this case.

Indeed, as the Court recognized in Jardines, an officer

may approach a home and knock because any citizen

can do the same thing. Id. at 8.

These officers

approached the gate and sought to speak with Mr.

Turner. Craig, 781 F. App’x at 891-92. Even

possessing probable cause, the officers respected the

gate until Turner repeatedly resisted their instructions

to disarm so they could safely speak with him. Id.

Where the lower court deviated from this Court’s

well-worn Fourth Amendment jurisprudence was to

14

conclude, based on the complaint before them, that

officers who received a credible complaint, identified

the subject of that complaint, observed the subject to be

armed and who refused officers’ repeated commands to

disarm, and observed the subject to be acting

erratically and aggressively against perceived

“trespassers”5 could not be lawfully arrested merely

because he was behind a locked gate. That has never

been the law as articulated by this Court. Id. This

Court’s jurisprudence demonstrates that even in the

absence of clear probable cause (which was not the case

here) a seizure is lawful when there is a palpable

threat to the officers or the community. Garner, 471

U.S. at 8-9 (“[T]he question [is] whether the totality of

the circumstances justified a particular sort of search

or seizure.”)

Further undermining the Eleventh Circuit’s

analysis, in Atwater v. City of Lago Vista, 532 U.S. 318

(2001), this Court held that a custodial arrest based on

probable cause that a nonviolent misdemeanor has

occurred is justified without a warrant even when the

crime for which the person was arrested carries no

possibility of jail time. Atwater, 532 U.S. at 354.

Nonetheless, despite these clear articulations of the

power of law enforcement officers to seize suspects

5

At the time of the initial encounter, all officers were outside the

fence crossing the driveway and remained there for most of the

encounter. The officers were authorized to seek to interview the

subject of the complaint, to get his side of the story and in doing so

to seek to ensure their safety by demanding he relinquish his

weapon. When he refused, he committed the additional offense of

misdemeanor obstruction of an officer in the presence of those

officers and was subject to further detention for that offense.

15

upon probable cause, the Eleventh Circuit created one

of those “ifs, ands, and buts” rules the Court rejected

in New York v. Belton when it stripped these officers of

their qualified immunity. 453 U.S. 454, 458 (1981)

(overruled on other grounds by Arizona v. Gant, 556

U.S. 332 (2009)). The Eleventh Circuit erroneously

concluded that qualified immunity did not apply and

ignored this Court’s holding in Pearson v. Callahan,

555 U.S. 223 (2009), that “the protection of qualified

immunity applies regardless of whether the

government official’s error is a mistake of law, a

mistake of fact, or a mistake based on mixed questions

of law and fact.” 555 U.S. at 231.

Finally, this Court held in Kentucky v. King, 563

U.S. 452, 455 (2011),6 that a warrantless entry into an

apartment is appropriate to prevent destruction of

evidence because the officers did nothing wrong that

caused the exigent circumstances there. The same

analysis applies to this matter: Officers observed their

suspect armed and acting erratically while they were

standing outside the fence. He was accused of

threatening violence against lawful hunters. App’x at

3a. All of the conduct of the officers was lawful and

appropriate given that Mr. Turner presented as an

imminent risk of harm to himself or others. Mr.

Turner’s conduct escalated the situation and justified

the seizure and lawful demand that he disarm.

The breadth of this Court’s precedent refutes the

conclusion by the Eleventh Circuit that these officers

did not act reasonably based on clearly established law.

6

Again, this case was neither cited nor discussed by the Circuit

Court’s opinion.

16

This Court should summarily reverse the Eleventh

Circuit for failing to analyze the case under the proper

legal framework.

II. IN THE ALTERNATIVE, THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE ELEVENTH CIRCUIT’S

DETERMINATION OF “CLEARLY ESTABLISHED”

NINE DAYS AFTER ITS ORIGINAL DECISION

IGNORES THE PRACTICAL REALITIES OF LOCAL

GOVERNMENT LAW ENFORCEMENT

As the Petition highlights, there is a circuit split as

to how much time is required to clearly establish the

law for the purposes of qualified immunity. See

Petition, at 14-21. Indeed, if this incident had occurred

in the Township of Scott, Pennsylvania or in Tulia,

Texas, the Third and Fifth Circuits would have likely

concluded that the law was not clearly established with

only nine days’ notice. See Bryan v. United States, 919

F.3d 356, 363 (3d Cir. 2019); Affiliated Capital Corp. v.

City of Houston, 735 F.2d 1555, 1559 (5th Cir. 1984). In

contrast, law enforcement in Pickens County, Georgia

or Pulaski County, Virginia would have been deemed

on notice of a panel decision issued a mere days before

the incident. See Arebaugh v. Dalton, 730 F.2d 970,

971 (4th Cir. 1984); Craig, 781 F. App’x 888. And for

the hundreds of thousands of local government officials

in the other circuits, it is unclear whether they would

be found liable or not. The state of confusion and

square circuit split on this issue warrants this Court’s

intervention as do significant policy concerns

associated with the Eleventh Circuit’s ruling.

In a perfect world, a Fourth Amendment

pronouncement from a United States Circuit Court of

17

Appeals would be “clearly established” when issued,

and practiced immediately by officers on the front line.

But that utopia ignores a number of realities, including

the mechanisms required to interpret an opinion and

translate it into actionable policies, the logistics

involved in internalizing those policies, and the

resources needed to expedite the process.

First is the question of “clarity” implicit in “clearly

established.” In some cases, it is easy to identify the

clear, bright-line precedential maxim that will dictate

future law enforcement behavior. In many more

instances, however—including in the present

scenario—the facts and circumstances are exceedingly

specific, leading to a highly nuanced opinion. See

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)

(explaining “[s]pecificity is especially important in the

Fourth Amendment context, where the Court has

recognized that it is sometimes difficult for an officer to

determine how the relevant legal doctrine, here

excessive force, will apply to the factual situation the

officer confronts.”), quoting Mullinax v. Luna, 136 S.

Ct. 305, 308 (2015). Reviewing these decisions requires

thoughtful and deliberate consideration by a seasoned

legal professional to discern the larger ambit, if any, of

such a holding. That consideration is costly and timeconsuming. It is not at all obvious, for example, that

the Terry-stop in Moore, involving an officer’s

investigation of a disturbance in a parking lot for which

there was no probable cause that a crime was

committed, was sufficiently similar to clearly establish

the law applicable to the facts presented to the officers

in this case, where they did have probable cause to

arrest. Local government attorneys need time to

18

analyze whether Moore’s holding was fact specific to

protect the sanctity of the interior of the home or

whether it would extend to the curtilage. Indeed, as

argued above, Amicus believes the Eleventh Circuit

committed a legal error on this point in determining

that these cases were factually similar, but at the very

least, it should be undisputed that local governments

need sufficient time to review and analyze decisions for

factual similarities.

Second is the question of “establishing” the newly

drawn parameter, once its contours are more clearly

understood. The evolution from legal interpretation by

a local government attorney into specific guidelines to

be followed by a police force is not instantaneous. The

metes and bounds of the reconfigured law must be fully

explained through the chain of command in a process

allowing for ample discussion and comprehension. The

new principle, while carrying the undeniable

provenance of a federal Circuit Court, must

nevertheless compete at the local level with myriad

other legal developments, including state Supreme

Court opinions, changes imposed by federal or state

law, new administrative regulations, and the operation

of local ordinances. The officer is responsible for

understanding and implementing all of these. That

implementation is time-consuming.

Against this reality, the Third Circuit found that a

Circuit Court’s pronouncement, even where based on a

virtually identical fact pattern involving the very same

law enforcement force, could not reasonably become

“clearly established” among uniformed officers in a twoday period:

19

When such a ruling is made, a ruling which

affects the procedures used in border searches,

it is beyond belief that within two days the

government could determine what was

“reasonable suspicion” and what new

policy was required to conform to the

ruling, much less communicate that new

policy to the CBP officers. We can only

conclude that as of September 5, 2008, it was not

clearly established in either the Third Circuit or

the First Circuit that a search of a cruise ship

cabin at the border had to be supported by

reasonable suspicion. Accordingly, under the

circumstances that Officer Ogg confronted, he

did not violate clearly established law by

entering lookouts for the three passengers the

day after we issued our decision in Whitted. He

is entitled to qualified immunity.

Bryan v. United States, 919 F.3d 356, 363 (3d Cir.

2019) (emphasis added).

The Bryan opinion reflects the judicial recognition

of factors which are far more pronounced at the local

level than in the United States Customs and Border

Patrol, a multi-billion-dollar federal law enforcement

behemoth.7 Most of the thousands of municipal law

enforcement departments across the country are

7

The 2020 Fiscal Year proposed budget for United States Customs

and Border Patrol is $18.2 Billion. United States Executive Office

of the President, “Border Security-2020 Budget Fact Sheet,”

https://www.whitehouse.gov/wp-content/uploads/2019/03/FY20Fact-Sheet_Immigration-Border-Security_FINAL.pdf (last

accessed Feb. 20, 2020).

20

located in small communities.8

They are

predominantly modest operations, confined by tight

budgets and challenged to serve ever-expanding needs

of their constituents. The “new normal” facing police

officers includes spikes in terrorism, active shooter

incidents, homelessness, mental illness, opioid

addiction and other infirmities, increasingly

antagonistic public protests and free speech battles and

the like. Pickens County, Georgia, a rural community

of less than 33,000 people, is within that cohort.9

Against this increasingly hostile and complex

environment, the Pickens Sheriff’s Office budget for

“Education and Training” of uniformed officers was

$4,000 for fiscal 2019.10

Facing these realities, local governments and the

municipal lawyers who advise them endeavor in good

faith to integrate developing law into the daily

practices of officers on the front line. But the

preponderance of America’s localities cannot afford

8

The National League of Cities states that more than 90% of

America’s municipal governments serve populations of less than

25,000. “Number of Municipal Governments & Population

Distribution,” https://www.nlc.org/number-of-municipalgovernments-population-distribution (last accessed Feb. 27, 2020).

9

The complexities facing Pickens County law enforcement is

exemplified in a crisis the County faced in October 2019: “Georgia

School District Reverses Its Decision on Transgender Bathroom

Policy After Receiving Death Threats,” Slate.com, Oct. 17, 2019,

https://slate.com/news-and-politics/2019/10/georgia-schooltransgender-bathroom-policy-death-threats.html (last accessed

Feb. 19, 2020).

10

www.pickensgasheriff.com/wp-content/uploads/2020/02/Decem

ber-2019-Financials.pdf (last accessed Feb. 24, 2020).

21

dedicated, full-time legal resources continuously poised

to interpret up-to-the-minute legal developments. It is

not reasonable, whether measured in available hours

or dollars, to mandate that a nuanced decision

transmogrifies, in six business days, into “clearly

established” edict. Such a ruling would require the

expenditure of inordinate sums and the devotion of

hours each day to ensure that personnel immediately

integrate late-breaking legal developments. Even that

outlay, which is wholly unrealistic for the many

thousands of small local governments around the

country, would likely not achieve the timeframes

implicit in the Eleventh Circuit’s ruling in this case.11

A more achievable approach would allow a reasonable,

11

The problem is further exacerbated by ambiguity about what

authority, aside from the Supreme Court, can “establish” the law

for the purposes of qualified immunity. See Carroll v. Carman, 574

U.S. 13, 17 (2014) (assuming without deciding that Circuit

precedent establishes the law for purposes of qualified immunity).

While the Eleventh Circuit has provided more guidance than most

circuit courts on this front, many other circuits utilize nebulous

tests to determine how the law can be established, indicating that

a “robust consensus of authority” can do the job. Compare

Shumpert v. City of Tupelo, 905 F.3d 310, 320 (5th Cir. 2018)

(district courts may rely on “a robust consensus” of other circuit

court precedent to “clearly establish” law for purposes of qualified

immunity) with Martinez v. City of Clovis, 943 F.3d 1260, 1275

(9th Cir. 2019) (clearly established law can be found from

consensus of state courts, district courts, or other circuit courts).

In those circuits, it would seem an impossible task to train law

enforcement as to “clearly established” law, given that virtually

any district court decision could be as construed to form a “robust

consensus of authority.”

22

prompt interval for opinions to be reduced to formal

policy and integrated into practice.12

IMLA and its members wholeheartedly confirm the

primacy of “clearly established” law, particularly where

it emanates from the Supreme Court or a United States

Circuit Court.

We do not seek a bright line

determination as to when “clarity” is “established.”

But we do advocate for a construct incorporating

realistic temporal and fiscal limitations on law

enforcement’s ability to integrate new law. Nine days

is patently insufficient for the Pickens County Sheriff’s

Office to complete that task under the circumstances of

this case. This Court should grant certiorari to resolve

this important question which the circuit courts are

intractably divided on.

CONCLUSION

This Court should grant certiorari and reverse the

Court of Appeals for the Eleventh Circuit. While this

Court is not a court for the correction of errors, the

analytical and material mistakes made by the Circuit

Court here justify the Court returning this matter for

further review. In the alternative, this Court should

grant certiorari to resolve the deep circuit split on the

issue of how much time is required to clearly establish

the law for the purposes of qualified immunity.

12

See, e.g., Seattle Police Department Manual, Title 6-”Arrestssearch and seizure,” available at www.seattle.gov/policemanual/title-6---arrests-search-and-seizure/6180---searches-gener

al (last accessed Feb. 21, 2020).

23

Respectfully submitted, this 2d day of March 2020.

CHARLES W. THOMPSON

AMANDA KELLAR KARRAS

ERICH EISELT

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION

51 Monroe Street, Suite 404

Rockville, MD 20850

(202) 466-5424

akellar@imla.org

CHRISTOPHER D. BALCH

Counsel of Record

BALCH LAW GROUP

830 Glenwood Ave., SE

Suite 510-220

Atlanta, GA 30316

(404) 963-0045

chris@balchlawgroup.com

Counsel for Amicus Curiae