Petition for Writ of Certiorari — Davdrin Goffin, Petitioner v. Robbie K. Ashcraft, et al.

No. ____________

IN THE

Supreme Court of the United States

DAVDRIN GOFFIN,

Petitioner,

v.

ROBBIE K. ASHCRAFT, INDIVIDUALLY AND OFFICIAL

CAPACITY AS POLICE OFFICER WARREN, AR,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL S. HARAWA*

Counsel of Record

WASHINGTON UNIVERSITY SCHOOL OF

LAW APPELLATE CLINIC

One Brookings Drive, Box 11200

St. Louis, MO 63130

March 15, 2021

i

QUESTION PRESENTED

Tennessee v. Garner announced the rule that it is

unconstitutional for police officers to use deadly force

to apprehend a fleeing suspect who does not appear to

be armed or otherwise dangerous. 471 U.S. 1, 11

(1985).

The question presented is:

Is an officer entitled to qualified immunity if she

shoots a fleeing suspect in the back without warning

after watching another officer search the suspect for

weapons and the search turned up nothing, and thus

the officer had no probable cause to that believe the

suspect was armed?

ii

PARTIES TO THE PROCEEDINGS



Petitioner Davdrin Goffin was appellant in the

court of appeals.



Respondent Officer Robbie K. Ashcraft was

appellee in the court of appeals



Randy Peek, Chief of Police, Warren, AR, was

appellee in the court of appeals



Bryan Martin, Mayor, Warren, AR, was

appellee in the court of appeals.



John Doe, 1-10, was appellee in the court of

appeals.



City of Warren, AR, was appellee in the court

of appeals.

iii

RELATED CASES



Goffin v. Ashcraft, No. 18-1430, U.S. Court of

Appeals for the Eighth Circuit. Judgment

entered October 15, 2020.



Goffin v. Peek, No. 1:15-cv-1040, U.S. District

Court for the Western District of Arkansas.

Judgement entered January 23, 2018.

iv

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

RELATED CASES .................................................... iii

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

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .........................................2

INTRODUCTION .......................................................3

STATEMENT OF THE CASE ....................................7

A. Officer Ashcraft Shot Unarmed Mr.

Goffin in the Back ..........................................7

B. The District Court Granted Officer

Ashcraft Summary Judgment .......................9

C. A Divided Eighth Circuit Affirmed. ..............9

REASONS FOR GRANTING THE PETITION .......12

A. The Eighth Circuit’s Decision Cannot

be Squared with Garner ...............................14

v

B. The Eighth Circuit’s Decision Conflicts

with Other Circuits’ Decisions Holding

it is Clearly Established that an Officer

Cannot Use Deadly Force in the Face of

Facts that Dispel Belief that the

Suspect is Armed ..........................................17

C. The Court Should Vacate the Eighth

Circuit’s Judgment and Remand for

Further Consideration in light of

Taylor v. Riojas ............................................23

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

APPENDIX

Opinion of the United States Court of

Appeals for the Eighth Circuit .................. App. 1a

Withdrawn Opinion of the United

States Court of Appeals for the

Eight Circuit ............................................ App. 16a

Opinion of the United States District

Court for the Western District of

Arkansas .................................................. App. 27a

vi

TABLE OF AUTHORITIES

PAGE(S)

CASES:

A.K.H. by & through Landeros v. City of Tustin,

837 F.3d 1005 (9th Cir. 2016)..............................21

Anderson v. Creighton,

483 U.S. 635 (1987)..............................................13

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)..............................................15

Brosseau v. Haugen,

543 U.S. 194 (2004) ..............................................16

Carr v. Castle,

337 F.3d 1221 (10th Cir. 2003)............................22

Davis v. Little,

851 F.2d 605 (2d Cir. 1988) .................................19

Graham v. Connor,

490 U.S. 386 (1989)..............................................12

Hope v. Pelzer,

536 U.S. 730 (2002) .................................... 5, 12, 13

Hutto v. Finney,

437 U.S. 678 (1978) ........................................23, 24

Lords Landing Vill. Condo. Council of Unit

Owners v. Cont’l Ins. Co.,

520 U.S. 893 (1997)..........................................6, 23

vii

K. W. P. v. Kansas City Public Schools,

931 F.3d 813 (8th Cir. 2019)................................16

McCoy v. Alamu,

No. 20-31

2021 WL 666347 (Feb. 22, 2021) ...........................6

O’Bert ex rel. Est. of O’Bert v. Vargo,

331 F.3d 29 (2d Cir. 2003) .............................17, 18

Russell v. Richardson,

905 F.3d 239 (3d Cir. 2018) ..........................19, 20

Saucier v. Katz,

533 U.S. 194 (2001) ................................................5

Streater v. Wilson,

565 F. App’x 208 (4th Cir. 2014) .........................20

Taylor v. Riojas,

141 S. Ct. 52 (2020)...................................... passim

Taylor v. Stevens,

946 F.3d 211 (5th Cir. 2019)................................24

Tennessee v. Garner,

471 U.S. 1 (1985).......................................... passim

Tolan v. Cotton,

572 U.S. 657 (2014) ................................................7

United States v. Lanier,

520 U.S. 259 (1997)..............................................12

Wilkins v. Gaddy,

559 U.S. 34 (2010)............................................5, 23

viii

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019)................................17

CONSTITUTIONAL PROVISION:

U.S. Const. amend. IV ................................................2

STATUTES AND RULES:

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

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

OTHER SOURCES:

Andrew Chung, et al., Shielded: Wrong

Place, Wrong Time, REUTERS, Aug. 25,

2020 ......................................................................17

PETITION FOR A WRIT OF CERTIORARI

Davdrin Goffin respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The Eighth Circuit’s opinion issued after panel

rehearing is reported at 977 F.3d 687 (App. 1a-15a).

The withdrawn opinion is reported at 957 F.3d 858

(App. 16a-26a). The opinion of the United States

District Court for the Western District of Arkansas is

unpublished but available at 2018 WL 522783 (App.

27a-39a).

JURISDICTION

The Eighth Circuit granted Mr. Goffin’s petition

for panel rehearing and issued its revised judgment

on October 15, 2020. On March 19, 2020, this Court

entered a standing order extending the time to file a

petition for a writ of certiorari in this case to March

15, 2021. This Court has jurisdiction under 28 U.S.C.

§ 1254.

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no warrants shall issue, but upon

probable cause, supported by oath or

affirmation,

and

particularly

describing the place to be searched, and

the persons or things to be seized.

U.S. Const. amend. IV.

Title 42 U.S.C. § 1983 provides:

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person

within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities

secured

by

the

Constitution and laws, shall be liable to

the party injured in an action at law,

suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983.

3

INTRODUCTION

Davdrin Goffin was suspected of burglarizing his

uncle’s house and stealing two guns. After receiving

the report, Officers Robbie Ashcraft and Aaron Hines

found Mr. Goffin sitting in the passenger seat of a car

at a nearby body shop. The officers approached with

their guns drawn and ordered Mr. Goffin to exit the

car with his hands up. Mr. Goffin complied. His hands

were empty. Seeing his empty hands, Officer Hines

holstered his weapon, ordered Mr. Goffin to put his

hands on the trunk, and “searched every part” of Mr.

Goffin’s body for weapons. With Officer Ashcraft close

by and observing, Officer Hines’ pat down turned up

nothing. When Officer Hines tried to handcuff Mr.

Goffin, Mr. Goffin spun around and began to run from

the officers. Suddenly and without warning, Officer

Ashcraft shot Mr. Goffin in the back from just two

steps away. When Mr. Goffin asked why she shot him,

Officer Ashcraft replied that he “shouldn’t have ran.”

Mr. Goffin alleged that Officer Ashcraft’s use of

deadly force violated his clearly established Fourth

Amendment rights. Indeed, over three decades ago,

the Court in Tennessee v. Garner held that police

cannot use deadly force to apprehend an unarmed

nondangerous suspect who tries to flee.

The Eighth Circuit nevertheless held Officer

Ashcraft was entitled to qualified immunity. Two

judges agreed that Officer Ashcraft’s use of deadly

force violated the Fourth Amendment. As Chief Judge

Smith explained in his concurrence, “probable cause

to believe that Goffin was armed dissipated upon

completion of [the] full body pat-down search that

revealed no weapons.” However, he and Judge Kobes

4

concluded that the shooting did not violate clearly

established law because no case had dealt with these

precise facts. As Judge Kobes’s majority opinion held

and Chief Judge Smith’s concurrence emphasized,

qualified immunity was warranted because Mr.

Goffin did not “provide a case clearly establishing that

a pat down that recovered nothing eliminated Officer

Ashcraft’s objectively reasonable belief that he was

armed and dangerous.”

Judge Kelly agreed with Chief Judge Smith that

Officer Ashcraft violated the Fourth Amendment, but

dissented from the ruling that Mr. Goffin’s rights

were not clearly established. Judge Kelly explained

that this Court “has long rejected the notion that ‘an

official action is protected by qualified immunity

unless the very action in question has been previously

held unlawful.’” In Judge Kelly’s view, Officer

Ashcraft was on “fair notice that her conduct was

unlawful” because it is “undisputed that since 1985, it

has been established by the Supreme Court that the

use of deadly force against a fleeing suspect who does

not pose a significant threat of death or serious

physical injury to the officer or others is not

permitted.” Judge Kelly concluded that “although the

novel faculty circumstance of a pat down may impact

whether a reasonable jury finds Ashcraft’s actions

objectively reasonable, it does not render inapplicable

[this] clearly established law . . . .”

Certiorari is warranted. The Garner Court put

police on fair notice over three decades ago that they

cannot shoot an unarmed suspect who tries to flee.

And as Judge Kelly explained, the fact that there was

an intervening pat down in this instance does not

5

make this established principle any less clear. How

an officer comes to learn a suspect is unarmed is

immaterial to the qualified immunity analysis. In

fact, Officer Ashcraft watching her partner search

every part of Mr. Goffin’s body, and seeing from the

search Mr. Goffin was unarmed, only underscores the

unreasonableness of her use of deadly force. Under

analogous circumstances, other circuits have denied

qualified immunity.

Summary reversal is appropriate. See Wilkins v.

Gaddy, 559 U.S. 34 (2010) (per curiam) (summarily

reversing because the lower court’s decision was “at

odds” with the Court’s case law). Chief Judge Smith

and Judge Kobes were laser-focused on the fact that

Mr. Goffin had not identified a case with the same

exact facts. But as the Court recently reiterated, “a

general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question” making a closely

analogous case unnecessary. Taylor v. Riojas, 141 S.

Ct. 52, 53-54 (2020) (quoting Hope v. Pelzer, 536 U.S.

730, 741 (2002)). The constitutional rule established

by Garner—that an officer may not use deadly force

to apprehend an unarmed suspect—applies with

obvious clarity here. Officer Ashcraft had more than

fair warning that her use of deadly force against Mr.

Goffin, who police had confirmed was unarmed, was

unconstitutional. Her actions did not fall within the

“hazy border between excessive and acceptable force.”

Saucier v. Katz, 533 U.S. 194, 206 (2001) (quotation

marks omitted).

Alternatively, the Court should grant certiorari,

vacate the judgment below, and remand for further

6

consideration in light of Taylor. See, e.g., McCoy v.

Alamu, No. 20-31, 2021 WL 666347 (Feb. 22, 2021).

In light of “intervening developments”—the Court’s

decision in Taylor—it is likely that “if given the

opportunity for further consideration,” that “such a

redetermination may determine the outcome of the

litigation.” Lords Landing Vill. Condo. Council of

Unit Owners v. Cont’l Ins. Co., 520 U.S. 893, 896

(1997) (explaining when GVR orders are appropriate).

7

STATEMENT OF THE CASE1

A. Officer Ashcraft Shot Unarmed Mr.

Goffin in the Back.

One evening, Officers Robbie Ashcraft and Aaron

Hines responded to a burglary call at the house of

Tommy Reddick. App. 27a. Reddick reported that his

nephew, Davdrin Goffin, broke into his home earlier

that day and stole a couple of guns, a box of bullets,

and a bottle pain pills. App. 27a-28a. Officer Ashcraft

told Mr. Reddick they had been “looking for” Mr.

Goffin in relation to a robbery. App. 28a. Mr. Reddick

responded that Mr. Goffin is “out of control,” and told

the officers they “better be ready to fight when you

find him.” App. 2a.

The officers split up to search for Mr. Goffin.

Officer Ashcraft stopped Dewayne Moore and asked

him if he had seen Mr. Goffin. App. 3a. Mr. Moore

responded that earlier, Mr. Goffin had flagged him

down for a ride. App. 3a. According to Mr. Moore,

when he pulled over, Mr. Goffin flashed two guns and

demanded that he take him to the carwash. App. 3a.

Afraid, Mr. Moore gave Mr. Goffin a ride. App. 3a. Mr.

Moore told Officer Ashcraft that Mr. Goffin looked

like he “was going to do something stupid.” App. 3a.

Officers Ashcraft and Hines found Mr. Goffin at a

nearby body shop. App. 3a. Mr. Goffin was sitting in

the passenger seat of a car, talking on the phone. App.

3a. The officers drew their weapons and approached,

ordering Mr. Goffin to exit the car with his hands up.

1 Because the case was resolved at summary judgment, the facts

are construed in the light most favorable to Mr. Goffin. See Tolan

v. Cotton, 572 U.S. 650, 657 (2014).

8

App. 3a. Mr. Goffin complied. App. 3a. His hands were

empty. See App. 3a. As Mr. Goffin was getting out of

the car, Officer Ashcraft claimed she saw something

“bumping in [his] right front pocket.” App. 3a.

Officer Hines then directed Mr. Goffin to the back

of the car, while Officer Ashcraft kept her gun trained

on Mr. Goffin. App. 29. Officer Hines ordered Mr.

Goffin to put his hands on the trunk. App. 29a. He

then patted Mr. Goffin down and “searched every part

of [Mr. Goffin’s] body” looking for weapons. App. 3a.

Officer Ashcraft was watching from a few feet away

with her gun still drawn. App. 29a.

Officer Hines’s search for weapons did not turn up

anything. App. 3a. Satisfied that Mr. Goffin was

unarmed, Officer Hines tried to handcuff Mr. Goffin.

App. 3a. He got one cuff around Mr. Goffin’s left wrist

and was about to cuff the right, when Mr. Goffin

wheeled around and started toward the street near

where several people were standing. App. 8a. Mr.

Goffin made it two steps before Officer Ashcraft,

without warning, shot him in the back. App. 4a.

The officers handcuffed Mr. Goffin and searched

his pockets, finding loose bullets and a magazine, but

no weapons. App. 4a. Mr. Goffin looked up at Officer

Ashcraft and asked her why she shot him. Officer

Ashcraft responded “because you shouldn’t have ran.”

ECF No. 56, Exh. 1 at 24.

B. The District Court Granted

Ashcraft Summary Judgment.

Officer

Mr. Goffin sued under 42 U.S.C. § 1983, alleging

Officer Ashcraft violated his Fourth Amendment

9

right to be free from excessive force. Officer Ashcraft

moved for summary judgment, arguing she did not

use constitutionally excessive force because she

reasonably believed Mr. Goffin was armed, and in the

alternative, that it was not clearly established that

her use of force was unconstitutional. Mr. Goffin

responded that it has been clearly established since

Garner “that an officer could not shoot a felon for the

purpose of preventing an escape.” ECF No. 56 at 23.

The district court granted summary judgment on

the ground that Officer Ashcraft did not violate Mr.

Goffin’s Fourth Amendment rights. The district court

held that “[t]he fact that a pat down occurred prior to

the shooting and the fact that Ashcraft never saw a

weapon in Goffin’s hand” were “insufficient to satisfy

Goffin’s burden of proving that Ashcraft’s actions

were objectively unreasonable.” App. 35a. It held that

under the totality of the circumstances, “Ashcraft had

probable cause to believe that Goffin posed a threat of

serious physical harm to her and others . . . .” App.

35a-36a. The district court did not engage in any

analysis of Garner.

C. A Divided Eighth Circuit Affirmed.

A fractured Eighth Circuit affirmed the district

court’s ruling, though none of the judges adopted its

reasoning. Judge Kobes wrote the majority opinion,

joined by Chief Judge Smith. Chief Judge Smith

wrote a separate concurring opinion. Judge Kelly

dissented.

The majority opinion recognized that Garner

established that an “officer is justified in using lethal

10

force [only] when ‘she has probable cause to believe

that the suspect poses a threat of harm to the officers

or others.’” App. 5a (quoting Garner, 471 U.S. at 11).

However, the majority held that Mr. Goffin had to

“provide a case clearly establishing that a pat down

that recovered nothing eliminated Officer Ashcraft’s

objectively reasonable belief that he was armed and

dangerous.” App. 6a (footnote omitted). Because Mr.

Goffin failed to identify such a case, the majority

concluded “that Officer Ashcraft [was] entitled to

summary judgment because it is not clearly

established that after observing a pat down that

removes noting from a suspect who an officer

reasonably believed to be armed and dangerous,

[that] an officer cannot use lethal force against that

suspect when he flees . . . .” App. 7a.

Chief Judge Smith wrote separately to opine that

Officer Ashcraft violated Mr. Goffin’s Fourth

Amendment rights. In his “view, probable cause to

believe that [Mr.] Goffin was armed dissipated upon

completion of the full body pat-down search that

revealed no weapons.” App. 9a. “Nonetheless, [he]

agree[d] with the court’s determination that Officer

Ashcraft is entitled to qualified immunity because

Goffin has not identified a case clearly establishing

that a pat down that recovered nothing eliminated

Officer Ashcraft’s objectively reasonable belief that he

was armed and dangerous.” App. 9a (quotation marks

omitted).

Judge Kelly disagreed. In her opinion, “a jury

could find that a reasonable officer would not have

believed Goffin posed a threat of serious physical

harm to the officer or others.” App. 12a. Judge Kelly

11

recounted the facts supporting this assertion: While

Officer Ashcraft initially received reports that Mr.

Goffin was armed, when “she arrived at the auto body

shop, she never saw a gun in Goffin’s possession.”

App. 12a. Mr. Goffin “was not holding a gun when he

was in the car, or when he exited the car.” App. 12a.

“At the back of the car,” Officer Ashcraft watched

Officer Hines “search[] every part of [Mr. Goffin’s]

body for weapons, including feeling for items in his

pockets and around his waist.” App. 12a. And Officer

“Ashcraft saw that the pat down revealed no weapons

of any kind.” App. 12a-13a. Still, “she shot him in the

back—without warning—after he took no more than

two steps.” App. 13a (quotation marks omitted).

Based on these facts, Judge Kelly believed that

Officer Ashcraft had “fair notice that her conduct was

unlawful” given that “since 1985, it has been

established by the Supreme Court that the use of

deadly force against a fleeing suspect who does not

pose a significant threat of death or serious physical

injury to the officer or others is not permitted.” App.

14a. Judge Kelly concluded that the majority “relies

on the precise scenario of a suspect fleeing after a pat

down that revealed no weapons to conclude that

Ashcraft violated no clearly established law. But the

pat down is a novel fact that does not render

inapplicable the clearly established law . . . .” App.

14a.

12

REASONS FOR GRANTING THE PETITION

Sometimes a “general constitutional rule already

identified in the decisional law may apply with

obvious clarity to the specific conduct in question,

even though ‘the very action in question has [not]

previously been held unlawful.’” Hope, 536 U.S. at 741

(quoting United States v. Lanier, 520 U.S. 259, 271

(1997)). In 1985, the Court established the

constitutional rule that an officer can resort to deadly

force to apprehend a fleeing suspect only if “the

suspect poses a significant threat of death or serious

physical injury to the officer or others.” Tennessee v.

Garner, 471 U.S. 1, 3 (1985). Garner established that

police are not permitted to use “deadly force to

apprehend a fleeing suspect who [does] not appear to

be armed or otherwise dangerous . . . .” Graham v.

Connor, 490 U.S. 386, 394 (1989).

The rule announced in Garner applies with

obvious clarity in this case. Officer Ashcraft shot Mr.

Goffin in the back from a few steps away despite the

fact Mr. Goffin was not holding a weapon, despite just

watching her colleague search Mr. Goffin for weapons

and personally witnessing the search turn up

nothing, despite his having only taken a few steps,

and without any warning that she was going to shoot.

Based on these facts, a jury could find that Officer

Ashcraft’s use of deadly force violated Mr. Goffin’s

rights as established over thirty years ago in Garner.

Indeed, two judges on the Eighth Circuit panel found

that Officer Ashcraft’s use of deadly force violated the

Fourth Amendment.

However, two judges on the Eighth Circuit held

Officer Ashcraft was entitled to qualified immunity

13

because no case “clearly establish[ed] that a pat down

that recovered nothing eliminated Officer Ashcraft’s

objectively reasonable belief that he was armed and

dangerous.” App. 9a; see App. 6a.

The Court should grant certiorari and reverse. It

has rejected the notion that the “very action in

question” must have been previously “held unlawful.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Rather, all that is necessary is “that in the light of

pre-existing law the unlawfulness must be apparent.”

Id. The unlawfulness of shooting an unarmed suspect

has been established for decades. And as Judge Kelly

explained, whether an officer knows a suspect is

unarmed because she witnessed a full body pat down

or through some other means does not render the

unlawfulness of shooting an unarmed suspect any

less clear. Officer Ashcraft had more than “fair notice”

that she could not shoot an unarmed suspect. Hope,

536 U.S. at 739. That she watched Mr. Goffin get

searched before she shot him only underscores the

illegality of her actions. Other circuits have denied

qualified immunity when faced with similar facts

revealing that the officer should have known the

suspect was unarmed, finding that Garner provided

more than sufficient clarity. In accordance with

Garner, the Eighth Circuit should have denied

qualified immunity here, too. Because it did not, the

Court should grant certiorari and reverse the Eighth

Circuit’s judgment. Alternatively, the Court should

grant certiorari, vacate the Eighth Circuit’s

judgment, and remand for further consideration in

light of Taylor v. Riojas.

.

14

A. The Eighth Circuit’s Decision Cannot be

Squared with Garner.

In Tennessee v. Garner, the Court held “that

apprehension by the use of deadly force is a seizure

subject to the reasonableness requirement of the

Fourth Amendment.” 471 U.S. at 7. There, two

officers responded to burglary call. Id. at 3. When they

arrived, they were met by a woman who said the

prowler was inside. Id. One officer radioed dispatch

while the other went to investigate. Id. The officer

heard a door slam and saw Garner running across the

backyard. Id. The officer “saw no sign of a weapon,

and, though not certain, was ‘reasonably sure’ and

‘figured’ that Garner was unarmed.” Id. As Garner

went to hop the back fence, the officer shot Garner in

the back of the head. Id. at 3-4.

The Court held that the officer’s use of force

violated the Fourth Amendment’s reasonableness

requirement. The Garner Court explained “that,

notwithstanding probable cause to seize a suspect, an

officer may not always do so by killing him.” Id. at 9.

The Court then announced the rule that “[w]here the

officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

officer or to others, it is not constitutionally

unreasonable to prevent escape by using deadly

force.” Id. at 11. However, a “police officer may not

seize an unarmed, nondangerous suspect by shooting

him dead.” Id. Moreover, “where feasible, some

warning [must be] given.” Id. at 11-12.

Garner clearly established the unlawfulness of

Officer Ashcraft’s conduct. Like in Garner, Officer

Ashcraft shot an unarmed burglary suspect from

15

behind without warning because he was trying to flee.

What makes the conduct here more egregious than

that in Garner, is that the officer in Garner thought

the suspected prowler was unarmed based only on a

hunch. Here, Officer Ashcraft not only saw that Mr.

Goffin had nothing in his hands, but watched a fellow

officer search him for weapons. Officer Ashcraft had

visual confirmation that Mr. Goffin was unarmed,

making her use of deadly force blatantly

unreasonable. More still, worse than in Garner, the

deadly force used here was not even necessary to

prevent the suspect’s escape. Mr. Goffin had only

taken two steps and therefore was still in arm’s reach

of two officers, who could have seized Mr. Goffin by

means other than deadly force (e.g., physical restraint

or using a taser). By shooting Mr. Goffin in the back

from pointblank range without warning, knowing full

well Mr. Goffin was unarmed, Officer Ashcraft

violated clearly established Fourth Amendment law.

Yet purporting to heed this Court’s warning that

courts should “‘not define clearly established law at a

high level of generality,’” App. 6a (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011)), the Eighth Circuit

granted qualified immunity. The court did so because

Mr. Goffin did not “provide a case clearly establishing

that a pat down that recovered nothing eliminated

Officer Ashcraft’s objectively reasonable belief that he

was armed and dangerous.” App. 6a. As the majority

noted, in the Eighth Circuit, “A plaintiff’s failure to

identify a case where an officer acting under similar

circumstances was held to have violated the Fourth

Amendment is often fatal to a claim outside of obvious

cases.” App. 5a (quoting K. W. P. v. Kansas City

Public Schools, 931 F.3d 813, 828 (8th Cir. 2019)).

16

And according to the majority, Garner “stands for a

general proposition and cannot clearly establish the

rule in most cases.” App. 7a.

The Eighth Circuit’s decision is deeply flawed.

Officer Ashcraft did not need a case to tell her that

she no longer had probable cause to believe that Mr.

Goffin was armed after watching him being searched

for weapons. Garner explicitly established that it is

unreasonable for an officer to use deadly force against

an unarmed fleeing suspect. How an officer comes to

learn a suspect is unarmed does not change the

applicability of this clearly established rule. Garner

put police on notice that they cannot shoot unarmed

suspects to prevent them from getting away.

Qualified immunity only “shields an officer from

suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends

the law governing the circumstances she confronted.”

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

curiam). Here, there are facts that dispel any

probable cause to believe Mr. Goffin was armed when

Officer Ashcraft decided to use deadly force. Her

conduct was so obviously illegal that a case with the

same exact facts was unnecessary.

17

B. The Eighth Circuit’s Decision Conflicts

with Other Circuits’ Decisions Holding it

is Clearly Established that an Officer

Cannot Use Deadly Force in the Face of

Facts that Dispel Belief that the Suspect

is Armed.

Judge Willett of the Fifth Circuit observed that

the “courts of appeals are divided—intractably—over

precisely what degree of factual similarity must exist”

for a constitutional right to be clearly established.

Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019)

(Willett, J., concurring in part, dissenting in part).2

Here, to overcome qualified immunity, the Eighth

Circuit did not want just a case with analogous facts.

It demanded a case with an identical fact pattern of

an officer witnessing a pat down before shooting a

fleeing suspect in order to overcome qualified

immunity. This circumscribed approach all but

ensures no officer will ever be held liable for their

unreasonable use of deadly force in the Eighth

Circuit. Whereas other courts of appeals, applying the

rule announced in Garner, have denied qualified

immunity when an officer is on notice that a suspect

is unarmed and yet shoots anyways.

Second Circuit. In O’Bert ex rel. Est. of O’Bert v.

Vargo, police received reports of a man beating a

woman in a trailer park parking lot. 331 F.3d 29, 33

2 In a comprehensive investigative report, Reuters studied 529

excessive force cases and found “significant differences in how

the federal appeals courts treat qualified immunity.” Andrew

Chung, et al., Shielded: Wrong Place, Wrong Time, REUTERS,

Aug. 25, 2020, https://www.reuters.com/investigates/specialreport/usa-police-immunity-variations/.

18

(2d Cir. 2003). Police arrived and spoke with the

woman, Miller, outside, while the man, O’Bert, waited

in the trailer. Id. The officers decided to arrest O’Bert

and ordered him out of the trailer. Id. O’Bert refused.

Id. When the officers warned they would come in and

arrest him, O’Bert threatened, “I will blow your

fucking heads off.” Id. Police asked Miller if O’Bert

had any guns, and she told them he had “a rifle or

hunting guns.” Id. One of the officers looked in the

trailer’s windows and saw “O’Bert standing in the

middle of the living room with nothing in his hands

but a cigarette.” Id. The other officers took the

opportunity to enter the trailer; one officer holstered

his gun so he could “tackle O’Bert and subdue him.”

Id. at 34. As the officer went for the tackle, O’Bert

turned in response, prompting another officer to

“sh[o]ot [O’Bert] through the chest.” Id.

Applying the rule announced in Garner, without

citing a case with the same precise facts, the Second

Circuit held that the officer who fired the deadly shot

was not entitled to qualified immunity. See id. at 3637. The Second Circuit reasoned that viewing the

facts in the light most favorable to the plaintiff, “it

could be permissibly inferred that at the moment the

officers entered the trailer they observed O’Bert

without a gun in his hands [and] that the officers

knew that he remained unarmed.” Id. at 39 (cleaned

up). While the officer emphasized the fact O’Bert had

threatened to “blow the officers’ heads off just

minutes before,” the Second Circuit concluded that

the “earlier threat did not give [the officer] license to

shoot to kill a man he knew, immediately before and

19

at the moment of the shooting, was unarmed.” Id. at

39-40 (cleaned up).3

Third Circuit. In Russell v. Richardson, a mom

called the court to ask for help with her teenage son,

L.T., who the court had previously deemed a “Person

in Need of Supervision” “beyond [his guardian’s]

control.” 905 F.3d 239, 244 (3d Cir. 2018). The court

dispatched marshals to the house; they found L.T.

“relaxing in his room, in his underwear and

unarmed.” Id. (quotation marks omitted). Upon

seeing the marshals, L.T. tried to run past them,

prompting one of the marshals to shoot L.T.,

paralyzing him. Id. at 244-45.

Applying the rule announced in Garner, without

citing a case with the same precise facts, the Third

Circuit held that the marshal who fired the shot was

not entitled to qualified immunity. See id. at 252. The

Third Circuit explained that Garner established that

police cannot resort to deadly force “where the

circumstances reflect the absence of a serious threat

of immediate harm to others.” Id. (quotation marks

omitted). The court of appeals reasoned that given

that L.T. was in his underwear, it would have been

“implausible to a reasonable officer that he was hiding

a weapon on his person.” Id. Therefore, “there was no

serious threat of immediate harm to others,” making

3 Not long after the Court decided Garner, the Second Circuit

affirmed a bench trial verdict finding an officer guilty of violating

the plaintiff’s Fourth Amendment rights where the officer patted

the plaintiff down, put him in the back of the police car, the

plaintiff got out and tried to escape, and the officer shot him from

behind. Davis v. Little, 851 F.2d 605, 606-08 (2d Cir. 1988).

20

this “an obvious case where Garner

establishes the law.” Id. (cleaned up).

clearly

Fourth Circuit. In Streater v. Wilson, police

responded to reports of a stabbing. 565 F. App’x 208,

209 (4th Cir. 2014) (unpublished). Officers identified

the victim, Streater, who told them “her assailant had

already fled by car.” Id. An officer saw two people

walking towards them from approximately 50 feet

away, one of whom was carrying a kitchen knife. Id.

An officer unholstered his weapon and ordered the

person holding the knife, J.G.—Streater’s son, to drop

it. Id. “J.G. failed to immediately comply and

continued to approach.” Id. J.G. then stopped 30 feet

away and dropped the knife. Id. The officer still yelled

at J.G. to disarm; J.G. responded that he had dropped

the knife. Id. The officer shot J.G. twice, paused, then

shot him twice more, killing him. Id.

Comparing this case to Garner, without citing

another case with the same precise facts, the Fourth

Circuit held that the officer violated J.G.’s clearly

established rights, because Garner held that “‘police

officer[s] may not seize an unarmed nondangerous

suspect by shooting him dead.’” Id. at 212 (quoting

Garner, 471 U.S. at 11). The court of appeals rejected

the officer’s argument that the facts in the case were

“not directly analogous to Garner,” concluding that

“J.G.’s right to be free from the use of lethal force to

effectuate a seizure under the totality of the

circumstances was manifestly included within more

general applications of the core Fourth Amendment

principles.” Id. (cleaned up).

21

Ninth Circuit. In A.K.H. by & through Landeros

v. City of Tustin, Hilda Ramirez called 911 to report

that her boyfriend, Benny Herrera, had stolen her

phone and hit her in the head. 837 F.3d 1005, 1008

(9th Cir. 2016). She told police her boyfriend “had not

used a weapon to take her phone, that Herrera did not

carry any weapons, and that Herrera had never been

violent with her before.” Id. An officer found Herrera

walking on the shoulder of the road. Id. at 1009. The

officer turned on the lights of his police SUV, at which

point “Herrera put his right hand in his sweatshirt

pocket and started alternately to skip, walk, and run

backwards facing [the officer].” Id. The officer opened

the car door, drew his gun, and ordered Herrera to get

down. Id. He did not comply. Id. Another officer pulled

up beside Herrera and shouted for him to get his hand

out of his pocket. Id. “Just as Herrera’s hand came out

of his pocket,” the officer “fired two shots in rapid

succession” without “any warning that he would

shoot,” killing Herrera. Id.

In holding that the officer violated Herrera’s

clearly established rights, the Ninth Circuit pointed

to Garner, which it called “instructive.” Id. at 1013.

Comparing the facts of Garner to the facts there, the

Ninth Circuit reasoned that the officer “in this case

had no more reason to suspect that Herrera was

armed than did the officer in Garner.” Id. Quoting

Garner, the Ninth Circuit concluded: “It has long been

clear that a police officer may not seize an unarmed,

nondangerous suspect by shooting him dead. Viewing

the evidence in the light most favorable to the

plaintiffs, that is precisely what [the officer] did here.”

Id. (cleaned up).

22

Tenth Circuit. In Carr v. Castle, two officers

responded to an assault at an apartment building.

337 F.3d 1221, 1224 (10th Cir. 2003). They knocked

on the suspect’s door and Randall opened it, “acting

very excited and very aggressive.” Id. at 1224-25. One

of the officers tried to handcuff Randall; Randall

struck the officer in the head and kicked the other in

the groin. Id. at 1225. Randall ran from the building

with the officers in pursuit. Id. Another officer joined

the chase and found Randall unable to climb a fence

because he had a slab of concrete in his hands. Id.

“Randall then ran toward [the officer] while raising

his arm to throw the concrete],” prompting two of the

officers to open fire. Id.

The Tenth Circuit held that the officers were not

entitled to qualified immunity, as Garner “plainly

control[s] this case.” Id. at 1227. The court of appeals

reasoned that the issue of when police are permitted

to “use deadly force to apprehend an unarmed fleeing

suspect” was “thoroughly vetted” in Garner, and that

although no case had been decided with these exact

facts, the circumstances here would “plainly come

under the rubric [of obvious cases] marked out in

Hope v. Pelzer.” Id. (citation omitted).

In short, other circuits have heeded the lesson of

Garner and have denied qualified immunity when an

officer is on notice that a suspect is unarmed or not

otherwise dangerous. These cases from other circuits

evince that Garner’s rule—that police may not use

deadly force to seize an unarmed suspect—applies

with obvious clarity to situations where the facts

dispel an officer’s probable cause to believe the

suspect is dangerous, even if the facts dispelling the

23

belief are novel. This is because the bottom line rule

announced in Garner remains the same. The Eighth

Circuit failed to follow Garner’s clear teachings. The

Court should grant certiorari and reverse. See, e.g.,

Wilkins, 559 U.S. at 34 (summarily reversing where

the lower court’s decision was “at odds” with this

Court’s precedent).

C. The Court Should Vacate the Eighth

Circuit’s Judgment and Remand for

Further Consideration in light of Taylor

v. Riojas.

Alternatively, the Court should grant certiorari,

vacate the Eighth Circuit’s judgment, and remand for

further consideration in light of Taylor v. Riojas, 141

S. Ct. 52 (2020), as the Eighth Circuit’s mistake in

this case is similar to the mistake made by the Fifth

Circuit in Taylor. See Lords Landing., 520 U.S. at 896

(“Where intervening developments, or recent

developments that we have reason to believe the court

below did not fully consider, reveal a reasonable

probability that the decision below rests upon a

premise that the lower court would reject if given the

opportunity for further consideration, and where it

appears that such a redetermination may determine

the ultimate outcome of the litigation, a GVR order is

potentially appropriate.” (cleaned up)).

In Hutto v. Finney, the Court opined about when

prison conditions violate the Eighth Amendment, in

dicta stating a “filthy, overcrowded cell . . . might be

tolerable for a few days and intolerably cruel for

weeks or months.” 437 U.S. 678, 686-87 (1978). In

Taylor, an inmate alleged that he was confined in “a

24

pair of shockingly unsanitary cells,” one of which was

covered in feces and the other overflowing with

sewage. 141 S. Ct. at 53. The Fifth Circuit held that

the conditions violated the Eighth Amendment, but

nevertheless concluded the officers were entitled to

qualified immunity. Taylor v. Stevens, 946 F.3d 211,

222 (5th Cir. 2019). The Fifth Circuit specifically

reasoned that the dicta in Hutto did not give prison

officials “‘fair warning’ that their specific acts were

unconstitutional.” Id.

This Court summarily reversed. The Court held

that “no reasonable correctional officer could have

concluded that, under the extreme circumstances of

this case, it was constitutionally permissible to house

Taylor in such deplorably unsanitary conditions for

such an extended period of time.” Taylor, 141 S. Ct. at

53. No closely analogous case was needed, said the

Court, because “[c]onfronted with the particularly

egregious facts of this case, any reasonable officer

should have realized that Taylor’s conditions of

confinement offended the Constitution.” Id. at 54. In

his concurring opinion, Justice Alito took particular

issue with the Fifth Circuit’s hiding behind Hutto,

admonishing that even the “equivocal and unspecific

dictum” in Hutto “does not justify what petitioner

alleges.” Id. at 56 (Alito, J., concurring).

Taylor is a reminder to the lower courts that they

should not inflexibly look for a case with identical

facts when faced with an obvious constitutional

violation. Yet that is exactly what the Eighth Circuit

did here. The Eighth Circuit held that qualified

immunity was appropriate because no case had dealt

with a pat down before the use of deadly force. But

25

that misses the forest for the trees, as the pat down

only confirmed that Mr. Goffin was unarmed and thus

made obvious that the use of deadly force was

unconstitutional. In the words of Judge Kelly, “the pat

down is a novel fact that does not render inapplicable

the clearly established law that officers may not use

deadly force unless the suspect poses a significant

threat of death or serious physical injury to the officer

or others.” App. 14a (quotation marks omitted).

This Court decided Taylor a month after the

Eighth Circuit issued its opinion below. And the Fifth

Circuit’s analysis in Taylor that the Court found

erroneous mirrors the Eight Circuit’s analysis here.

Accordingly, the Court should grant certiorari, vacate

the judgment below, and remand the case for further

consideration in light of Taylor.

26

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

DANIEL S. HARAWA*

Counsel of Record

WASHINGTON UNIVERSITY SCHOOL

OF LAW APPELLATE CLINIC

One Brookings Drive, Box 1120

St. Louis, MO 63130

(314) 935-4689

dharawa@wustl.edu

Counsel for Petitioner

Davdrin Goffin