Petition for Writ of Certiorari — City of Sacramento, California, et al., Petitioners v. Robert Mann, Sr., et al.

No. ______

In the

Supreme Court of the United States

__________________

CITY OF SACRAMENTO, SACRAMENTO POLICE

DEPARTMENT, SAMUEL D. SOMERS, JOHN C. TENNIS,

AND RANDY R. LOZOYA,

Petitioners,

v.

ROBERT MANN, SR., VERN MURPHY-MANN, AND

DEBORAH MANN,

Respondents.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

MATTHEW RUYAK

SEAN RICHMOND

Office of City Attorney

915 I Street, Fourth Floor

Sacramento, CA 95814

(916) 808-5346

Counsel for Petitioners

City of Sacramento,

Sacramento Police

Department, and

Samuel D. Somers

JOHN A. WHITESIDES

(Counsel of Record)

SERENA M. WARNER

ANGELO, KILDAY & KILDUFF, LLP

601 University Avenue

Suite 150

Sacramento, CA 95825

(916) 564-6100

jwhitesides@akk-law.com

Counsel for Petitioners

John C. Tennis, and

Randy R. Lozoya

August 10, 2020

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

i

QUESTIONS PRESENTED

1. Whether the First Amendment protects intimate

associations absent expressive activity;

2. If so, whether that protection exceeds what the Due

Process Clause provides;

3. Whether sibling relationships can qualify as

intimate absent cohabitation; and

4. Whether liability under 42 U.S.C. § 1983 for

associational deprivation requires an intent to harm

the protected association, rather than also

encompassing incidental results.

ii

PARTIES TO THE PROCEEDING

Petitioners are the City of Sacramento, Sacramento

Police Department, Samuel D. Somers, John C. Tennis,

and Randy R. Lozoya. They were defendants in the

District Court and appellees in the second appeal.

Respondents are Robert Mann, Sr., Vern MurphyMann, and Deborah Mann. They were plaintiffs in the

district court and appellants in the second appeal.

STATEMENT OF RELATED PROCEEDINGS

There are no proceedings that are directly related to

this case.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

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

STATEMENT OF RELATED PROCEEDINGS . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . 6

DECISIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . 1

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

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A.

INITIAL DISTRICT COURT PROCEEDINGS . . . . . . 4

B.

THE FIRST PANEL PROCEEDING . . . . . . . . . . . . 5

C.

FURTHER DISTRICT COURT PROCEEDINGS . . . . 6

D.

THE SECOND PANEL PROCEEDING . . . . . . . . . . 6

REASONS FOR GRANTING THE PETITION . . . . 8

I.

THE DECISION BELOW ADDS TO A

CIRCUIT PLURALITY REGARDING FIRST

AMENDMENT PROTECTION FOR NONEXPRESSIVE ASSOCIATIONS . . . . . . . . . . . . 8

II.

CIRCUIT COURTS ALSO DIVIDE ON

WHETHER THE ASSOCIATIONAL RIGHT

RECEIVES DIFFERENT PROTECTION

UNDER THE FIRST AMENDMENT. . . . . . 11

iv

III.

THE

DECISION

BELOW

ALSO

ENHANCES A SPLIT CONCERNING

SIBLING PROTECTION . . . . . . . . . . . . . . . 12

IV.

THE NINTH CIRCUIT STANDS ALONE

IN ALLOWING INCIDENTAL

DISASSOCIATION . . . . . . . . . . . . . . . . . . . 13

V.

THE DECISION BELOW IS WRONG IN

MULTIPLE REGARDS . . . . . . . . . . . . . . . . . 14

A.

THIS COURT’S DECISIONS WEIGH AGAINST

FIRST AMENDMENT INTIMACY PROTECTION . . 14

B.

BROADER FIRST AMENDMENT PROTECTION IS

UNSUPPORTED . . . . . . . . . . . . . . . . . . . . . . . . 20

C.

SIBLING RELATIONSHIPS DO NOT INVOLVE A

FUNDAMENTAL CHOICE . . . . . . . . . . . . . . . . . 22

D.

ALLOWING RECOVERY FOR INCIDENTAL

DEPRIVATION UNDULY EXPANDS STANDING TO

SUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

APPENDIX

Appendix A Memorandum in the United States

Court of Appeals for the Ninth Circuit

(April 30, 2020) . . . . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order RE: Motion

to Dismiss in the United States

District Court Eastern District of

California

(March 13, 2019) . . . . . . . . . . . . . . App. 5

v

Appendix C Judgment in a Civil Case in the

United States District Court Eastern

District of California

(March 13, 2019) . . . . . . . . . . . . . App. 10

Appendix D Memorandum in the United States

Court of Appeals for the Ninth Circuit

(September 7, 2018) . . . . . . . . . . App. 12

Appendix E Order RE: Motion to Dismiss in the

United States District Court Eastern

District of California

(September 19, 2017) . . . . . . . . . App. 19

Appendix F Order Denying Rehearing in the

United States Court of Appeals for the

Ninth Circuit

(June 10, 2020) . . . . . . . . . . . . . . App. 23

Appendix G Complaint for Violation of Civil and

Constitutional Rights in the United

States District Court Eastern District

of California

(June 8, 2017) . . . . . . . . . . . . . . . App. 25

Appendix H First

Amended

Complaint for

Violation of Civil and Constitutional

Rights in the United States District

Court Eastern District of California

(December 10, 2018) . . . . . . . . . . App. 53

Appendix I Mandate in the United States Court of

Appeals for the Ninth Circuit

(June 18, 2020) . . . . . . . . . . . . . . App. 85

vi

TABLE OF AUTHORITIES

CASES

Akers v. McGinnis,

352 F.3d 1030 (6th Cir. 2003). . . . . . . . . . . . . . . 23

Am. Legion Post #149 v. Washington State

Dep’t of Health, 192 P.3d 306 (Wash. 2008). . . . 11

Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986). . . . . . . . . . . . . . . . . . . . . . . 28

Bell v. City of Milwaukee,

746 F.2d 1205 (7th Cir. 1984). . . . . . . . . . . . . . . 13

Bd. of Dir. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987). . . . . . . . . . . . . . . . . . . passim

Boy Scouts of America v. Dale,

530 U.S. 640 (2000). . . . . . . . . . . . . . . . . . . . . . . 19

Burger v. Cnty. of Macon,

942 F.3d 372 (7th Cir. 2019). . . . . . . . . . . . . . . . . 9

Christensen v. County of Boone, IL,

483 F.3d 454 (7th Cir. 2007). . . . . . . . . . . . . . 9, 26

City of Dallas v. Stanglin,

490 U.S. 19 (1989). . . . . . . . . . . . . . . . . . . 9, 18, 19

Clayworth v. Luzerne County, Pa.,

513 Fed. Appx 134 (3d Cir. 2013). . . . . . . . . . . . 10

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974). . . . . . . . . . . . . . . . . . . . 15, 17

Copp v. Unified Sch. Dist. No. 501,

882 F.2d 1547 (10th Cir. 1989). . . . . . . . . . . . . . 23

vii

Daniels v. Williams,

474 U.S. 327 (1986). . . . . . . . . . . . . . . . . . . . . . . 28

Erotic Serv. Provider Legal Educ. & Research

Project v. Gascon, 880 F.3d 450 (9th Cir. 2018). . 9

Fair Housing Council of San Fernando Valley v.

Roommate.com, LLC,

666 F.3d 1216 (9th Cir. 2012). . . . . . . . . . . . . . . 24

Fraternal Order of Eagles v. City & Borough of

Juneau, 254 P.3d 348 (Alaska 2011) . . . . . . . . . 11

Freeman v. City of Santa Ana,

68 F.3d 1180 (9th Cir. 1995). . . . . . . . . . . . . . . . . 9

Gaines v. Wardynski,

871 F.3d 1203 (11th Cir. 2017). . . . . . . . . . . . . . . 9

Gorman v. Rensselaer Cnty.,

910 F.3d 40 (2d Cir. 2018) . . . . . . . . . . . 10, 12, 28

Griffin v. Strong,

983 F.2d 1544 (10th Cir. 1993). . . . . . . . . . . . . . . 9

Griswold v. Connecticut,

381 U.S. 479 (1965). . . . . . . . . . . . . . . . . . . . . . . 16

Hartwell v. Houghton Lake Cmty. Sch.,

755 F. App’x 474 (6th Cir. 2018) . . . . . . . . . 10, 12

Hudspeth v. City of Shreveport,

270 F. App’x. 332 (5th Cir. 2008) . . . . . . . . . . . . 13

IDK, Inc. v. Clark Cnty.,

836 F.2d 1185 (9th Cir. 1988). . . . . . . . . . . . . . 8, 9

viii

Iota Xi Chapter Of Sigma Chi Fraternity v.

Patterson, 566 F.3d 138 (4th Cir. 2009) . . . . . . . 10

Jacoby & Meyers, LLP v. Presiding Justices,

852 F.3d 178 (2d Cir. 2017) . . . . . . . . . . . . . . . . 10

J.P. by & through Villanueva v. Cnty. of

Alameda,

803 Fed. Appx 106 (9th Cir. 2020) . . . . . . . . 12, 21

Keates v. Koile,

883 F.3d 1228 (9th Cir. 2018). . . . . . . . . . . . . . . . 9

Kolley v. Adult Protective Servs.,

725 F.3d 581 (6th Cir. 2013). . . . . . . . . . . . . . . . 10

Lawrence v. Texas,

539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . . . 19

Louisiana Debating & Literary Assoc. v. City of

New Orleans, 42 F.3d 1483 (5th Cir. 1995) . . . . . 9

Loving v. Virginia,

388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . 15

Madison Teachers, Inc. v. Walker,

851 N.W.2d 337 (Wis. 2014) . . . . . . . . . . . . . . . . 11

Matusick v. Erie Cnty. Water Auth.,

757 F.3d 31 (2d Cir. 2014) . . . . . . . . . . . . . . . . . 11

Meyer v. Nebraska,

262 U.S. 390 (1923). . . . . . . . . . . . . . . . . . . . . . . 15

Michael H. v. Gerald D.,

491 U.S. 110 (1989). . . . . . . . . . . . . . . . . . . . . . . 21

ix

Moore v. City of E. Cleveland, Ohio,

431 U.S. 494 (1977). . . . . . . . . . . . . . . . . 15, 17, 23

Mote v. Walthall,

902 F.3d 500 (5th Cir. 2018). . . . . . . . . . . . . . . . . 9

Muir v. Decatur County, Iowa,

917 F.3d 1050 (8th Cir. 2019). . . . . . . . . . . . . . . 11

Muniz-Savage v. Addison,

647 Fed. Appx 899 (10th Cir. 2016) . . . . . . . . . . . 9

Nat’l Ass’n for the Advancement of

Multijurisdiction Practice v. Castille,

799 F.3d 216 (3d Cir. 2015) . . . . . . . . . . . . . . . . 10

Obergefell v. Hodges,

135 S. Ct. 2584 (2015). . . . . . . . . . . . . . . . . . . . . 20

Overton v. Bazzetta,

539 U.S. 126 (2003). . . . . . . . . . . . . . . . . . . . . . . 19

Parks v. City of Warner Robins, Ga.,

43 F.3d 609 (11th Cir. 1995). . . . . . . . . . . . . . . . 11

Partridge v. City of Benton, Arkansas,

929 F.3d 562 (8th Cir. 2019). . . . . . . . . . . . . . . . 13

People ex rel. Gallo v. Acuna,

929 P.2d 596 (Cal. 1997). . . . . . . . . . . . . . . . . . . 11

Planned Parenthood of S. Pennsylvania v. Casey,

505 U.S. 833 (1992). . . . . . . . . . . . . . . . . . . . . . . 18

Rentz v. Spokane Cnty.,

438 F. Supp. 2d 1252 (E.D. Wash. 2006) . . . 13, 14

x

Roberts v. United States Jaycees,

468 U.S. 609 (1984). . . . . . . . . . . . . . . . . . . passim

Robertson v. Hecksel,

420 F.3d 1254 (11th Cir. 2005). . . . . . . . . . . . . . 13

Rode v. Dellarciprete,

845 F.2d 1195 (3d Cir. 1988) . . . . . . . . . . . . 13, 23

Roe v. Wade,

410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . . 15, 16

Russ v. Watts,

414 F.3d 783 (7th Cir. 2005). . . . . . . . . . 13, 24, 26

Sanitation and Recycling Industry, Inc. v. City of

New York, 107 F.3d 985 (2d Cir. 1997) . . . . . . . 10

Santosky v. Kramer,

455 U.S. 745 (1982). . . . . . . . . . . . . . . . . . . . . . . 15

Shahar v. Bowers,

114 F.3d 1097 (11th Cir. 1997) . . . . . . . . . . . . . . 9

Shaw v. Stroud,

13 F.3d 791 (4th Cir. 1994). . . . . . . . . . . . . . . . . 28

Smith v. Org. of Foster Families For Equality &

Reform, 431 U.S. 816 (1977). . . . . . . . . . . . . 15, 24

Sowards v. Loudon Cnty. Tenn.,

203 F.3d 426 (6th Cir. 2000). . . . . . . . . . . . . 10, 12

Stalter v. Cnty. of Orange,

345 F. Supp. 3d (S.D.N.Y. 2018) . . . . . . . . . 12, 22

Stanley v. Georgia,

394 U.S. 557 (1969). . . . . . . . . . . . . . . . . . . . 15, 17

xi

Stanley v. Illinois,

405 U.S. 645 (1972). . . . . . . . . . . . . . . . . . . . . . . 17

Swank v. Smart,

898 F.2d 1247 (7th Cir. 1990), cert. denied,

498 U.S. 853 (1990). . . . . . . . . . . . . . . . . . . . . . . . 9

Thompson v. Ashe,

250 F.3d 399 (6th Cir. 2001). . . . . . . . . . . . . . . . 13

Tillman v. City of W. Point, Miss.,

953 F. Supp. 145 (N.D. Miss. 1996), aff’d

109 F.3d 765 (5th Cir. 1997). . . . . . . . . . . . . . . . 23

Troxel v. Glanville,

530 U.S. 57 (2000). . . . . . . . . . . . . . . . . . . . . . . . 19

Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe Cnty.,

768 F.2d 1186 (10th Cir. 1985). . . . . . . . . . . . . . 12

United States v. Pacheco-Donelson,

893 F.3d 757 (10th Cir. 2018). . . . . . . . . . . . . . . 12

United States v. Thompson,

896 F.3d 155 (2d Cir. 2018), cert. denied,

139 S. Ct. 2715 (2019). . . . . . . . . . . . . . . . . . . . . 10

United States v. Title Ins. & Trust Co.,

265 U.S. 472 (1924). . . . . . . . . . . . . . . . . . . . . . . 25

Valdivieso Ortiz v. Burgos,

807 F.2d 6 (1st Cir. 1986) . . . . . . . . . . . . . . . . . . 13

Wallace v. Texas Tech Univ.,

80 F.3d 1042 (5th Cir. 1996). . . . . . . . . . . . . . . . . 9

Ward v. City of San Jose,

967 F.2d 280 (9th Cir. 1991). . . . . . . . . 5, 7, 23, 24

xii

Willis v. Town Of Marshall, N.C.,

426 F.3d 251 (4th Cir. 2005). . . . . . . . . . . . . . . . 10

Zablocki v. Redhail,

434 U.S. 374 (1978). . . . . . . . . . . . . . . . . . . . . . . 26

CONSTITUTION AND STATUTES

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . passim

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

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Calif. Code of Civil Procedure § 377.60(a). . . . . . . . . 4

1

DECISIONS BELOW

The district court’s initial order denying Petitioners’

motion to dismiss is reported at 2017 U.S. Dist. LEXIS

152383 and is reprinted in the Appendix (App.) at 1921. The circuit court’s first panel decision is reported

at 748 Fed. Appx 112 and is reprinted at App. 13-18.

The district court’s subsequent order is reported at

2019 WL 1168533 and is reprinted at App. 5-9. The

circuit court’s second panel decision is reported at 803

Fed. Appx 142 and is reprinted at App. 2-4.

JURISDICTION

The circuit court entered judgment on April 30,

2020. App. 85. Petitioners timely filed a joint petition

for rehearing en banc on May 13, 2020. The circuit

court denied en banc rehearing on June 10, 2020. App.

23-24. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS

The First Amendment states: “Congress shall make

no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.”

The Fourteenth Amendment, Section 1, states: “All

persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

2

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

STATEMENT OF THE CASE

Three siblings of Joseph Mann sue City of

Sacramento, its chief of police, and the two officers who

shot him for depriving those siblings of a putative First

Amendment right of intimate relationship with

Joseph – a liberty interest the siblings assert differs

from that sheltered by the Due Process Clause.

Because the Ninth Circuit alone imposes liability for

incidental associational deprivation, such as when

police officers seize or kill a suspect for reasons

independent of his close relationships, Respondents

essentially invoke section 1983 as a surrogate for state

law wrongful death liability to relatives state law does

not recognize as next of kin.

The officers’ reason for shooting did not allegedly

involve speech, petitioning, worship, or assembly. As

do several other circuits, the Ninth suffers from an

internal split over whether the First Amendment

safeguards family associations unengaged in expressive

activity. The first appellate panel mooted the split by

stating the analysis would be the same under either

the First or Fourteenth Amendments, and found the

siblings failed to allege facts sufficient for intimate

relationship protection, adding that, for siblings,

intimacy requires cohabitation at the time of state

action. But, after the district court entered judgment

for City and the Officers because the amended

complaint failed to allege Joseph Mann resided with

3

any sibling, a second appellate panel reversed, holding

that sibling relationships can, even in the absence of

due process protection, receive First Amendment

protection regardless of expressive activity or

cohabitation.

Amply manifested by the conflicting panel decisions

in this case, no aspect of constitutional law suffers from

greater disagreement amongst and within the circuit

courts than protection for intrinsic relationships

outside a common household. Although this Court

devoted considerable attention over the past century to

due process protection for individual liberty to make

fundamental private choices such as marriage,

procreation, cohabitation, and child-rearing, one of the

Court’s opinions, Board of Directors of Rotary

International v. Rotary Club of Duarte, 481 U.S. 537,

545 (1987), uniquely referred to the First Amendment

as the liberty source, a deviation that contributed to

the circuit courts’ complete disarray.

Absent this Court’s intervention, not only will three

significant questions about the scope of constitutional

protection for intrinsic associations remain in national

turmoil, but an equally important practical deterrent

to prompt settlement of claims will remain in the Ninth

Circuit, where the identity of potential plaintiffs cannot

be feasibly ascertained. This action provides an ideal

factual and procedural vehicle to resolve these issues

because it undisputedly includes each key factual and

legal component – a man not engaged in protected

speech killed by police for reasons unrelated to his

siblings, who were not part of a common household,

which led to City settling with the estate and next of

4

kin, only to face a new suit based on the First

Amendment where two appellate panels disagreed

about the general scope of constitutional protection.

A. INITIAL DISTRICT COURT PROCEEDINGS

Within a month of Joseph Mann’s death, his father

as next of kin and on behalf of Joseph’s estate sued

City of Sacramento, Chief Somers, and Officers Tennis

and Lozoya in the Eastern District of California

(“Mann I”). App. 37. The case settled by City’s

payment to the father of $719,000. Id. Several months

after the settlement, Respondents and two other

siblings filed this action, alleging the shooting deprived

them of their First and Fourteenth Amendment rights

to intimate relationship with Joseph. App. 25-52. The

complaint alleged the siblings’ biological kinship with

Joseph but did not contain facts either describing their

interactions or connecting the Officers’ reason for

shooting with the siblings. App. 29-30. Because the

siblings lack standing to sue for wrongful death under

California law, no state law claims were alleged.1 App.

45-50.

The Officers unsuccessfully moved to dismiss based

on the siblings’ lack of standing to sue. App. 20. After

finding the siblings had conceded the lack of due

process protection for their relationships, the district

court framed the issue as “whether § 1983 actions for

loss of association under the First Amendment are

subject to the same limitation” and answered that

question negatively based in part on the corresponding

1

See Calif. Code of Civil Procedure § 377.60(a).

5

reference to family relationship protection in Rotary

Club, 481 U.S. at 545.2 App. 20-21. The district court

candidly questioned the wisdom of broader First

Amendment protection, quipping “[h]ere it might more

appropriately be said that bad law makes tough cases.”

App. 21.

B. THE FIRST PANEL PROCEEDING

The Officers appealed from the denial of qualified

immunity, and the Ninth Circuit reversed. App. 13-18

(“Mann II”). The unanimous memorandum decision

briefly cited some of the circuit’s conflicting precedent

as to the extent of First Amendment associational

protection, and found the siblings failed to allege facts

sufficient to show an associational deprivation “under

any theory recognized by this court” in that neither

expressive activity nor intimate relationships were

historically described, quoting the same passage from

Rotary Club as had the district court. App. 14-17. The

decision continued to say that, because the same

analysis governs the intimate relationship right

“regardless whether we characterize it under the First

or Fourteenth Amendments,” the rejection by Ward v.

City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991) of

associational liberty between siblings unless they are

cohabitating meant Respondents would otherwise lack

2

“We have emphasized that the First Amendment protects those

relationships, including family relationships, that presuppose ‘deep

attachments and commitments to the necessarily few other

individuals with whom one shares not only a special community of

thoughts, experiences, and beliefs but also distinctively personal

aspects of one’s life.’” (partially quoting Roberts v. United States

Jaycees, 468 U.S. 609, 622 (1984)).

6

standing to sue. App. 17. The panel remanded the

case to the district court with an express grant of

discretion whether to allow an amended complaint.

App. 18.

C. FURTHER DISTRICT COURT PROCEEDINGS

The district court granted leave to amend, resulting

in a first amended complaint by Respondents. App. 5,

54-82. Although the pled constitutional bases for

liability remained the same, Respondents added

considerable history regarding Joseph’s residences

until the year of his death, at which point the

description of his living arrangements became vague

and undifferentiated between those three siblings.

App. 57-61, 77-81. However, Respondents did disclose

that Joseph often left whichever home he had been

staying at, and remained away long enough for

Respondents to look for and retrieve him. App. 61.

Petitioners again moved to dismiss, contending the

factual averments did not show Joseph had chosen to

reside with any sibling plaintiff at the time of his

death. App. 6-7. The district court described the law of

the case via Mann II as “adult, non-cohabitating

siblings do not enjoy a constitutional right to intimate

association,” deemed the record as showing a series of

visits or lodgings rather than actual shared residence,

and granted the motion without leave to amend. App.

5-9. Judgment was entered that day. App. 10.

D. THE SECOND PANEL PROCEEDING

Respondents appealed. The second panel, which

consisted of no judges from the first panel, reversed.

(“Mann III”). App. 2-4. The memorandum decision

7

characterized Mann II’s requirement siblings

cohabitate to qualify for intimate relationship

protection as “dicta,” limited Ward v. City of San Jose’s

denial of sibling protection to due process claims, and

reasoned that Mann II’s grant of discretion to the

district court regarding amendment counter-indicated

an intent to treat Ward as controlling First

Amendment claims. App. 3-4. Yet, Mann III was

silent about Mann II’s statement “we analyze the right

of intimate association in the same manner regardless

whether we characterize it under the First or

Fourteenth Amendments.” Id. Mann III concluded by

remanding the case “for consideration of Plaintiffs’

First Amendment claim under the standard set forth in

Rotary Club . . .” App. 4. Although the Officers raised

as an alternative defense qualified immunity for lack of

clearly established law regarding a sibling First

Amendment associational right, the panel did not

address it. App. 2-4.

Petitioners jointly sought rehearing en banc based

on the intra-circuit and inter-circuit splits about First

Amendment protection for non-expressive associations,

and regarding sibling relationship protection, but the

court denied rehearing. App. 23-24.

8

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW ADDS TO A

CIRCUIT PLURALITY REGARDING FIRST

AMENDMENT PROTECTION FOR NONEXPRESSIVE ASSOCIATIONS

Mann III undeniably regards the First Amendment

as protecting non-expressive associations – a

proposition that remains highly contested both within

the Ninth Circuit (which division Mann III ignored),

and elsewhere. As suggested above, the plurality

partially stems from Rotary Club’s description of

Roberts as placing intimate relationship protection in

the First Amendment, whereas Roberts’ discussion of

family relationships makes no mention of the First

Amendment as the source of that “fundamental

element of personal liberty,” either directly or by

citation to other decisions (468 U.S. at 617-621); rather

Justice Brennan’s opinion specified the First

Amendment solely when addressing expression (id. at

618, 622-623).

Ironically, the Ninth Circuit was one of the first

appellate courts to examine Rotary Club and Roberts in

light of this Court’s prior intrinsic relationship

decisions; IDK, Inc. v. Clark County, 836 F.2d 1185,

1192-1193 (9th Cir. 1988) concluded that protection

resided solely under the Due Process Clause unless the

intimate relationship also had an expressive

component, citing Roberts.

The Seventh and Tenth Circuits soon joined the

Ninth in limiting First Amendment protection to

expressive activity, a position those two circuits

9

maintain.3 But the Fifth and Eleventh Circuits

reached the opposite conclusion, to which they still

adhere.4

Notwithstanding IDK, the Ninth Circuit split

internally even before Mann III.5 The Second, Third,

Fourth, and Sixth Circuits suffer from similar

3

Burger v. County of Macon, 942 F.3d 372, 374 (7th Cir. 2019)

(“[t]he right of intimate association is secured by the Fourteenth

Amendment, not the First Amendment”); Swank v. Smart, 898

F.2d 1247, 1252 (7th Cir. 1990) (op. of J. Posner, “it is sometimes

suggested — erroneously, in light of Roberts and Stanglin — that

the First Amendment protects nonexpressive associations”), cert.

denied, 498 U.S. 853; Christensen v. County of Boone, IL, 483 F.3d

454, 462–63 (7th Cir. 2007); Griffin v. Strong, 983 F.2d 1544, 1547

(10th Cir. 1993) (citing IDK and Swank); Muniz-Savage v.

Addison, 647 Fed. Appx 899, 905 (10th Cir. 2016) (citing Griffin).

4

Mote v. Walthall, 902 F.3d 500, 506 (5th Cir. 2018); Wallace v.

Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1996); Louisiana

Debating & Literary Assoc. v. City of New Orleans, 42 F.3d 1483,

1492-94 and 1500 (5th Cir. 1995); Gaines v. Wardynski, 871 F.3d

1203, 1213 (11th Cir. 2017) (“[t]he question in this case is not

whether there is a First Amendment right to intimate association;

there is”); Shahar v. Bowers, 114 F.3d 1097, 1102 at n. 9 (11th Cir.

1997) (“[t]he Supreme Court has identified the origin of the right

to intimate association as First Amendment freedom of

association,” citing Rotary Club).

5

Compare Erotic Serv. Provider Legal Educ. & Research Project v.

Gascon, 880 F.3d 450, 458 (9th Cir. 2018), with Freeman v. City of

Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995) and Keates v. Koile,

883 F.3d 1228, 1236 (9th Cir. 2018) (“we have held that claims

under both the First and Fourteenth Amendment for unwarranted

interference with the right to familial association could survive a

motion to dismiss”).

10

dissension and confusion.6

The Eighth Circuit

categorically mooted the question by saying the same

6

Compare Sanitation and Recycling Industry, Inc. v. City of New

York (2d Cir. 1997) 107 F.3d 985, 996 (“as several circuits have

held, the right to intimate association lies not in the First but in

the Fourteenth Amendment”) and Gorman v. Rensselaer County,

910 F.3d 40, 47 (2d Cir. 2018) (using due process analysis for lack

of protected speech) with Jacoby & Meyers, LLP v. Presiding

Justices, 852 F.3d 178, 187 (2d Cir. 2017) (“‘freedom of association’

protected by the First Amendment has been generally understood

to encompass two quite different types of associational activity”).

See United States v. Thompson, 896 F.3d 155, 167 (2d Cir. 2018)

(“[o]ur Court has not determined whether the right to intimate

association finds its roots in the First Amendment or in the Due

Process Clauses”), cert. denied, 139 S. Ct. 2715 (2019). Compare

Clayworth v. Luzerne County, Pa., 513 Fed. Appx 134, 137 (3d Cir.

2013) (“Clayworth’s First Amendment claim fails because the right

he asserts—the right to intimate association with family

members—is anchored instead in the Fourteenth Amendment”);

Nat’l Ass’n for the Advancement of Multijurisdiction Practice v.

Castille, 799 F.3d 216, 223 (3d Cir. 2015) (“[t]here are two such

freedoms protected by the First Amendment: ‘intimate association

and expressive association’”). Compare Iota Xi Chapter Of Sigma

Chi Fraternity v. Patterson, 566 F.3d 138, 146 (4th Cir. 2009) (1st

Amend. protects both intimate and expressive assocs., citing

Roberts) with Willis v. Town Of Marshall, N.C., 426 F.3d 251, 261

(4th Cir. 2005) (“a constitutionally protected right to associate

depends upon the existence of an activity that is itself protected by

the First Amendment,” citing Roberts). Compare Kolley v. Adult

Protective Servs., 725 F.3d 581, 587 (6th Cir. 2013) (dismissing 1st

Amend. claim on grounds intimate association protection falls

exclusively under the 14th Amend., citing Roberts) with Sowards

v. Loudon County Tenn., 203 F.3d 426, 432 (6th Cir. 2000) (“we

have analyzed the right of intimate association under the First

Amendment”). See Hartwell v. Houghton Lake Cmty. Sch., 755

F. App’x 474, 477-478 (6th Cir. 2018) (noting internal split and

opting for solely due process protection).

11

liability analysis would apply regardless.7 Neither the

First, nor the D.C., Circuit has considered the question.

Accordingly, no majority position exists. State high

courts are similarly divided.8

II. CIRCUIT COURTS ALSO DIVIDE ON

WHETHER THE ASSOCIATIONAL RIGHT

RECEIVES DIFFERENT PROTECTION UNDER

THE FIRST AMENDMENT

Nor can the question of First Amendment protection

be easily dismissed as purely academic. Although some

courts, like Mann II and the Eighth Circuit, deemed

the liability standard identical, others share Mann III’s

view of broader, or at least different, First Amendment

protection. Compare Parks v. City of Warner Robins,

Ga., 43 F.3d 609, 616 (11th Cir. 1995) (“[a]lthough the

right to marry enjoys independent protection under

both the First Amendment and the Due Process

Clause, the Supreme Court has held that the same

analysis applies in each context”) and Matusick v. Erie

County Water Authority, 757 F.3d 31, 57 at n. 17 (2d

Cir. 2014) (“the precise constitutional origins of this

right are not, in themselves, critical to our analysis”)

7

Muir v. Decatur County, Iowa, 917 F.3d 1050, 1054 (8th Cir.

2019).

8

Compare Am. Legion Post #149 v. Washington State Dep’t of

Health, 192 P.3d 306, 322-323 and n. 27 (Wash. 2008) and Madison

Teachers, Inc. v. Walker, 851 N.W.2d 337, 352 (Wis. 2014) with

People ex rel. Gallo v. Acuna, 929 P.2d 596, 608 (Cal. 1997) and

Fraternal Order of Eagles v. City & Borough of Juneau, 254 P.3d

348, 352 (Alaska 2011); all of which cite Roberts, yet read it

differently regarding the First Amendment’s scope.

12

with Sowards, 203 F.3d at 433 (“cases involving the

fundamental right to marry under the Due Process

Clause of the Fourteenth Amendment are not

applicable to Sowards’ right of intimate association

claim under the First Amendment”); Stalter v. County

of Orange, 345 F. Supp. 3d 378, 389 at fn. 3 (S.D.N.Y.

2018) (1st Amend. analysis pertains to action against

an individual relationship, whereas due process fits

regulation of a class).

See J.P. by & through

Villanueva v. County of Alameda, 803 Fed. Appx 106,

110 (9th Cir. 2020) (dissent asserted 1st Amend. right

is “doctrinally distinct” from due process); Hartwell,

755 F. App’x at 478 (questioning if divergent judicial

analyses stem from “the prior confusion about whether

the First or Fourteenth Amendment protects intimate

association”).

III. THE DECISION BELOW ALSO ENHANCES

A SPLIT CONCERNING SIBLING

PROTECTION

Inconsistent with Mann II, Mann III holds that

sibling relationships can be protected even absent

cohabitation. Here too the Ninth Circuit further

divides itself. See J.P. v. County of Alameda, 803 Fed.

Appx at 109 (no sibling protection under 1st Amend. or

14th). Nor is there consensus elsewhere. The Second

and Tenth Circuits expressly recognized general sibling

protection,9 and the Third Circuit suggested, albeit

9

Gorman v. Rensselaer County, 910 F.3d 40, 47 (2d Cir. 2018);

Trujillo v. Bd. of County Comm’rs of Santa Fe County, 768 F.2d

1186, 1189 (10th Cir. 1985); United States v. Pacheco-Donelson,

893 F.3d 757, 760 (10th Cir. 2018) (citing Trujillo).

13

inconclusively, such protection may exist.10 Yet, the

First, Sixth, and Seventh Circuits held against sibling

rights, and the Fifth Circuit summarily rejected the

lone adult sibling claim it has encountered.11

IV. THE NINTH CIRCUIT STANDS ALONE IN

ALLOWING INCIDENTAL DISASSOCIATION

Far greater agreement exists about the lack of

intimate relationship protection for the unintended

impact on family member(s) of action against another

relative, such as most police shootings or arrests. Every

circuit except the Ninth to have considered the matter

requires as an element of associational deprivation that

the officer acted for the purpose of terminating/

interfering with the relationship, such as when police

remove a child from the parents’ custody due to

suspected abuse.12 See Rentz v. Spokane County, 438

10

Rode v. Dellarciprete, 845 F.2d 1195, 1204–05 (3d Cir. 1988)

(protection for brother-in-law lacking as relationship neither

chosen nor of blood kin).

11

Valdivieso Ortiz v. Burgos, 807 F.2d 6, 9 (1st Cir. 1986);

Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir. 2001) (no

associational right to visit, vs. to live with, brother); Bell v. City of

Milwaukee, 746 F.2d 1205, 1245-1247 (7th Cir. 1984), overruled in

other part by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005);

Hudspeth v. City of Shreveport, 270 F. App’x. 332, 334 (5th Cir.

2008).

12

See Partridge v. City of Benton, Arkansas, 929 F.3d 562, 568 (8th

Cir. 2019) and Russ, 414 F.3d at 789-790 (describing supermajority

view). Accord, Robertson v. Hecksel, 420 F.3d 1254, 1258 (11th

Cir. 2005). The Fifth and D.C. Circuits have not addressed the

issue.

14

F. Supp. 2d 1252, 1263-65 (E.D. Wash. 2006)

(cataloging Ninth Circuit decisions and describing its

position on incidental deprivation as unsupported by

“any extensive or rigorous analysis”).13 By reversing

the judgment in a situation where Respondents neither

pled, nor offered to plead, that the Officers shot Joseph

in order to deprive their relationships with him, Mann

III perpetuates the Ninth Circuit’s maverick position.

V. THE DECISION BELOW IS WRONG IN

MULTIPLE REGARDS

Mann III especially warrants review because it falls

on the wrong side of each split described above; it

recognizes First Amendment protection for incidental

disruption of a family relationship not the product of a

fundamental privacy choice.

A. THIS COURT’S DECISIONS WEIGH AGAINST FIRST

AMENDMENT INTIMACY PROTECTION

No language in the First Amendment references, or

even suggests, intimate relationships. Yet, widespread

is the notion such coverage exists. As in this case, the

vast majority of circuit court opinions cited above based

their conclusions on Roberts and/or Rotary Club. But

reading only those two decisions fails to yield a

definitive answer to whether the First Amendment

protects intimate, as well as expressive, associations.

Over the past century, this Court’s repeated journeys

into freedom of choice regarding family matters

tethered that liberty to the Due Process Clause,

13

Order amended at 2006 WL 8437720, at *9-10 (E.D. Wash. Aug.

4, 2006).

15

without mention of the First Amendment, starting with

Meyer v. Nebraska, 262 U.S. 390, 398 (1923)

(addressing the freedoms “to marry, establish a home

and bring up children”) through Loving v. Virginia, 388

U.S. 1, 12 (1967) (marriage is a fundamental freedom

regardless of potential spouse’s race); Stanley v.

Illinois, 405 U.S. 645, 651 (1972) (re child-bearing and

rearing – “[t]he integrity of the family unit has found

protection in the Due Process Clause of the Fourteenth

Amendment”); Cleveland Bd. of Educ. v. LaFleur, 414

U.S. 632, 639 (1974) (“freedom of personal choice in

matters of marriage and family life is one of the

liberties protected by the Due Process Clause”); Smith

v. Org. of Foster Families For Equality & Reform, 431

U.S. 816, 842 (1977) (quoting LaFleur); Moore v. City of

E. Cleveland, Ohio, 431 U.S. 494, 499-501 (1977) (right

of relatives to cohabitate); and Santosky v. Kramer,

455 U.S. 745, 753 (1982) (citing Moore as an example of

“this Court’s historical recognition that freedom of

personal choice in matters of family life is a

fundamental liberty interest protected by the

Fourteenth Amendment”).

Accordingly, Roe v. Wade, 410 U.S. 113, 153 (1973)

addressed challenges to anti-abortion laws pled under

almost every Amendment, cataloged the Court’s prior

privacy right decisions by the Amendment cited, yet

placed only one under the First Amendment: Stanley v.

Georgia, 394 U.S. 557, 564-565 (1969), which

16

recognized the convicted man’s right to watch obscene

films in his home as part of free speech.14 Roe deemed

the Due Process Clause the most apt source of

protection – “[t]his right of privacy, whether it be

founded in the Fourteenth Amendment’s concept of

personal liberty and restrictions upon state action, as

we feel it is . . . “ (Emphasis added.) Essentially, Roe

combined liberty and privacy analysis to a single

result – that government may not unduly interfere

with a person’s freedom to make certain choices about

fundamentally private matters.

Thus, prior to hearing Roberts, the Court had not

once invoked the First Amendment as a source of

family relationship/privacy protection.

Roberts

addressed a fraternal organization’s challenge to

Minnesota’s anti-discrimination laws regarding the

exclusion of females as club members. The Court

described the associational right as bearing two

aspects: the fundamental liberty to enter into and

maintain “certain intimate human relationships” free

from undue government intrusion, which it labeled

“intrinsic;” and the right to associate for the purpose of

First Amendment activity, i.e., speech, religion,

petition, or assembly, which the Court termed

14

Griswold v. Connecticut, 381 U.S. 479, 482-483 (1965) reversed

the convictions of doctors who advised spouses about

contraceptives because the First Amendment preserved the

doctors’ right to disseminate information and to associate with

their patients for that purpose. But because Griswold did not

suggest that the First Amendment also protected the marital

relationship or the couple’s right to choose against child-bearing,

Roe categorized it as invoking the “penumbra of the Bill of Rights.”

410 U.S. at 152.

17

“instrumental”; concluding that it would separately

analyze each claim/right. 468 U.S. at 617-618.

Although nowhere in the intrinsic relationship

discussion did Roberts identify a particular

constitutional source, it included citations to Moore,

LaFleur, and Stanley v. Illinois. Id. at 619. In

contrast, later, and under a separate heading, Justice

Brennan’s opinion for a unanimous Court addressed

the expressive freedoms, stating that “we have long

understood as implicit in the right to engage in

activities protected by the First Amendment a

corresponding right to associate with others in pursuit

of a wide variety of political, social, economic,

educational, religious, and cultural ends.” Id. at 622.

Rotary Club too involved the exclusion of women

from a fraternal organization. Justice Powell’s opinion

for an (again) unanimous Court stated it would track

Roberts’ approach of separately analyzing intimate

relationships from expressive ones. 481 U.S. at 544545. After stating the “freedom to enter into and carry

on certain intimate relationships is a fundamental

element of liberty protected by the Bill of Rights,” the

Court noted it had previously recognized corresponding

protection for marriage, children, and “cohabitation

with relatives,” added that non-family relationships

could be protected, then stated that “[w]e have

emphasized that the First Amendment protects those

relationships, including family relationships, that” bear

sufficient hallmarks of privacy, citing Roberts. Id. at

545. But, as shown above, no such First Amendment

emphasis previously occurred; to the contrary, Roberts

spoke of it solely regarding expression; otherwise the

18

past family focus lay squarely on the Due Process

Clause.

Tellingly, just a year later, Justices Stevens and

Blackmun concurred in City of Dallas v. Stanglin, 490

U.S. 19, 28 (1989) by saying that the freedom to “enjoy

the company of other people,” regardless of location,

“involves substantive due process rather than the First

Amendment right of association,” which is especially

significant because Justice Stevens had joined in both

the Roberts and Rotary Club majority opinions. Nor

did Chief Justice Rehnquist’s majority opinion in

Stanglin suggest otherwise – it merely said in the

context of a purely First Amendment challenge that the

First Amendment embraces an associational right “in

certain circumstances,” quoted Roberts for the

proposition two different associational rights are

protected by the Constitution, found no possible

intimate relationship existed regarding dance hall

patrons, and went on to analyze whether expressive

activity protected by the First Amendment was

involved. Id. at 23-24. Thus Stanglin did not hold that

the First Amendment protects intimate relationships

any more than did Roberts.

Indeed, a few years after Stanglin, Planned

Parenthood of S. Pennsylvania v. Casey, 505 U.S. 833,

851 (1992) included family relationships in a list of

“matters, involving the most intimate and personal

choices a person may make in a lifetime . . . central to

the liberty protected by the Fourteenth Amendment.”

None of the five separate opinions suggested First

Amendment protection for intrinsic relationships.

19

Nor, in any other decision since Stanglin, has a

Supreme Court justice (even in a dissent) referenced

the First Amendment as a source of intrinsic/intimate

relationship protection. To the contrary, Troxel v.

Glanville, 530 U.S. 57 (2000), which dealt with the

conflicting state law child visitation rights of parents

and grandparents, yielded a plurality with six different

opinions. Justice O’Connor’s opinion (joined in by

Justices Breyer, Ginsburg, and Rehnquist) identified

the parents’ right to custody of their children as a

fundamental liberty interest protected by the Due

Process Clause. Id. at 65-66. Neither that opinion, nor

any of the other five, mentioned the First Amendment,

save for Justice Kennedy’s dissent, which alluded to it

merely hypothetically and in a different regard. Id. at

95.

The same year as Troxel, the Court decided Boy

Scouts of America v. Dale, 530 U.S. 640 (2000) where it

deemed New Jersey’s public accommodations law to

impermissibly infringe on the Boy Scouts’ expressive

right to exclude a homosexual as scoutmaster. Justice

Stevens’ dissent (joined by three others) mentioned Boy

Scout’s alternative contention of interference with

intimate association, noting that a corresponding due

process right generally existed (though not for BSA), as

contrasted with the expressive “First Amendment right

to associate.” Id. at 698, fn. 26.

Lawrence v. Texas, 539 U.S. 558 (2003) was equally

silent about the First Amendment – its analyses of the

sodomy law rested on due process and equal protection.

Overton v. Bazzetta, 539 U.S. 126, 131 (2003) stated

only that “the Constitution” protects certain highly

20

personal relationships; it expressly declined to address

the merits of the inmates’ purported First and

Fourteenth Amendment intimate relationship rights.

Likewise, Obergefell v. Hodges, 135 S. Ct. 2584 (2015),

in the context of homosexual marriage, repeatedly

identified the Fourteenth Amendment as the source of

protection for the intimacy of marriage. Id. at 2598,

2600, 2602 (“[t]he right of same-sex couples to marry

that is part of the liberty promised by the Fourteenth

Amendment . . .”) and 2604. Although the opinion went

beyond due process to address the implications to the

Equal Protection Clause from a ban on gay marriage

(id. at 2602-2604), it mentioned the First Amendment

only in the context of clarifying that it preserves the

right to debate the morality of same-sex marriages, but

not as a source of direct protection for the marriage

itself (id. at 2607).

In short, Rotary Club’s single unwarranted

reference to the First Amendment as the source of

intrinsic relationship rights cannot withstand the

Court’s otherwise unanimous attribution of such

protection to the Due Process Clause.

B. BROADER FIRST AMENDMENT PROTECTION IS

UNSUPPORTED

Although one can easily understand how reading

Roberts and Rotary Club in isolation misled numerous

lower courts about the source of the intrinsic

relationship right, no justification exists for Mann III’s

view that the First Amendment extends that right

farther than does the Due Process Clause to encompass

non-cohabitating siblings. In this regard, Mann III

cited nothing from this Court supposedly suggesting

21

such a distinction. All the Ninth Circuit opinions

Mann III cites for the general notion of First

Amendment protection are correspondingly empty.

App. 4. And, despite the district court’s observation

broader First Amendment protection appeared

unsound, Mann III failed to analyze why First

Amendment protection should be relatively greater. Id.

Instead, the panel re-characterized Mann II’s remand

as necessarily recognizing a difference in protection.

That reasoning is deeply flawed because (a) Mann II

expressly stated the protection doesn’t vary by

Amendment; and (b) the remand is easily explained by

the possibility of additional facts showing cohabitation,

which is exactly what Respondents did (albeit

insufficiently).

Other proponents of broader First Amendment

protection fare just as poorly. The Sixth Circuit’s

dismissal of due process cases as inapposite in

Sowards, 203 F.3d at 433 was unaccompanied by a

substantive explanation. In contrast, Judge Paez’s

dissent in J.P. v. County of Alameda did attempt to

explain the proffered difference – that a right under the

Due Process Clause exists if it was a historic social

practice or otherwise afforded “special protection,”

citing Michael H. v. Gerald D., 491 U.S. 110, 124

(1989), whereas the First Amendment extends further

to the type of intimate relationships described in

Roberts and repeated in Rotary Club. The defect in

this reasoning is that Roberts didn’t purport to expand

associational protection beyond the due process

precedents it relied on; rather it distilled them into

certain qualities that typify an intimate relationship.

468 U.S. at 619-620 (“[b]etween these poles [family and

22

large organization], of course, lies a broad range of

human relationships that may make greater or lesser

claims to constitutional protection from particular

incursions by the State”).

Equally flawed is the district judge’s differentiation

in Stalter, 345 F. Supp. 3d at 389, fn. 3 between the

First Amendment, as applying to action against an

individual relationship, and due process, as used

regarding regulation of a class. Neither Roberts nor

Rotary Club involved state action directed against

particular persons, much less suggested different

analyses for that scenario versus for general

regulation.

C. SIBLING RELATIONSHIPS DO NOT INVOLVE A

FUNDAMENTAL CHOICE

Those family rights this Court has recognized as

fundamental all rest on the concept of freedom to

decide an inherently private matter – whether to

marry; who to marry; whether to have children; how

the children should be educated or reared; where to

live; and whether to reside with other relatives.

Roberts categorized these choices as “those that attend

the creation and sustenance of a family.” 468 U.S. at

619. But one cannot choose to have a brother or

sister – that choice is made by one’s parents. Nor does

one decide to create aunts, uncles, nephews, cousins, or

grandchildren; all those biological or in-law connections

stem from the marital or procreation decisions of

others. Despite the very high level of intimacy two

siblings might achieve, their relationship doesn’t

originate from a choice either person made. Thus,

except for spouses and parents-children, relatives don’t

23

satisfy Roberts’ test to determine which relationships

qualify as intimate: those kinships possess “relative

smallness” and can have “seclusion from others in

critical aspects of the relationship,” but they do not

bear “a high degree of selectivity in decisions to begin

and maintain the relationship” because no such

commencement decision occurs.

See id. at 620

(“[d]etermining the limits of state authority over an

individual’s freedom to enter into a particular

association therefore unavoidably entails a careful

assessment of where that relationship’s objective

characteristics locate it on a spectrum from the most

intimate to the most attenuated of personal

attachments”).

Indeed, friends fare better under

Roberts than do most relatives because one chooses to

form friendships.15

Mann II correctly perceived the lack of origination

freedom for siblings; their relationships achieve

constitutional protection only when they make the

private choice to live together, as this Court held in

Moore v. East Cleveland, 431 U.S. at 499-501 regarding

an extended family. Mann II harmonized Ward, 967

F.2d at 284 with Moore v. East Cleveland by implying

15

Nor is the notion of associational standing in friends far-fetched;

several courts have already embraced it. Akers v. McGinnis, 352

F.3d 1030, 1039–40 (6th Cir. 2003) (“[p]ersonal friendship is

protected as an intimate association”); Tillman v. City of W. Point,

Miss., 953 F. Supp. 145, 150-151 (N.D. Miss. 1996), aff’d 109 F.3d

765 (5th Cir. 1997). But see Copp v. Unified Sch. Dist. No. 501,

882 F.2d 1547, 1551 (10th Cir. 1989) (deeming close friendships

insufficient for intimate relationship); Rode v. Dellarciprete, 845

F.2d 1195, 1205 (3d Cir.1988) (close friendship insufficient as not

relating to a household).

24

a cohabitation exception to Ward’s rejection of sibling

standing.

Here the Respondents siblings are adults and

undisputedly not part of a single household, whereas

this Court emphasized that “the importance of the

familial relationship, to the individuals involved and to

the society, stems from the emotional attachments that

derive from the intimacy of daily association, and from

the role it plays in ‘promot(ing) a way of life’ through

the instruction of children [citation], as well as from

the fact of blood relationship.” Smith v. Org. of Foster

Families For Equality & Reform, 431 U.S. 816, 844

(1977). Not once has this Court actually found intrinsic

associational protection outside the household. For this

reason, most circuits do not recognize associational

protection for non-cohabitating persons, even parents

and adult offspring. See Russ v. Watts, 414 F.3d at 787

(noting no circuit except the Ninth “has allowed a

parent to recover for the loss of his relationship with

his child in these circumstances [not living together]”).

Petitioners acknowledge that Roberts contemplates

potential protection for non-familial relationships. But

that postulated extension doesn’t defeat the household

as an essential feature. People can live together

without being a “family,” such as friends who pool

resources to share rent or a mortgage, or just to more

enjoy each other’s company. See e.g., Fair Housing

Council of San Fernando Valley v. Roommate.com,

LLC, 666 F.3d 1216, 1221 (9th Cir. 2012) (applying

Roberts factors: “it’s hard to imagine a relationship

more intimate than that between roommates”).

Generally speaking, a fundamental choice regarding a

25

matter of personal privacy outside of a family that also

involves daily association means cohabitation.

Hence Mann II’s remand to the district court

correctly required cohabitation proximate to death and

granted the district court discretion whether to allow

Respondents to so amend.16

By erroneously

disregarding Mann II’s alternative cohabitation holding

as “dicta” – the question was expressly briefed and

argued in Mann II – Mann III essentially eliminates

the benchmarks of choice and daily association from

the relationship analysis.17

D. A LLOWING R ECOVERY FOR I NCIDENTAL

DEPRIVATION UNDULY EXPANDS STANDING TO SUE

Unlike the pervasive First Amendment and sibling

association splits, in every circuit except the Ninth the

question of standing to sue for an associational

deprivation is easily answered – those persons whose

relationship government targeted.

Because the

Officers did not allegedly target any of Joseph’s

16

Mann III misfired by stating Mann II’s grant of discretion

regarding amendment to the district court confirmed an

independent First Amendment analysis (“no amendment could

change the fact that Plaintiffs are the decedent’s adult siblings”) –

the potential amendment instead involved the key historical issue

of cohabitation, on which the original complaint was silent. App.

4.

17

“[W]here there are two grounds, upon either of which an

appellate court may rest its decision, and it adopts both, ‘the ruling

on neither is obiter [dictum], but each is the judgment of the court,

and of equal validity with the other.’” United States v. Title Ins. &

Trust Co., 265 U.S. 472, 486 (1924).

26

relationships, this case could not exist in any other

circuit. See Russ, 414 F.3d at 789-790 (“under any

standard, finding a constitutional violation based on

official actions that were not directed at the [family]

relationship would stretch the concept of due process

far beyond the guiding principles set forth by the

Supreme Court”).

All the other circuits did not err; Zablocki v.

Redhail, 434 U.S. 374, 386–87 (1978) supports a

targeting requirement because the Court there stated

liability turned on the fact the regulation “does

interfere directly and substantially with the right to

marry.” Incidental disruption is not “direct.” See id. at

n. 12 (distinguishing social security rule terminating

child’s benefits upon parent’s remarriage as not

attempting to interfere with marital choice);

Christensen v. County of Boone, 483 F.3d at 463 (citing

Zablocki, “[t]he Constitution prevents fundamental

rights from being aimed at; it does not, however,

prevent side effects that may occur if the government

is aiming at some other objective”). Like most of this

Court’s associational precedents, Roberts dealt with

direct regulation – Minnesota’s anti-discrimination

law’s application to a private club that excluded

females from membership.

Nothing in Roberts

indicates constitutional protection pertains to state

action against an individual unrelated to his

associations.

The practical benefit of requiring a direct, or

targeted, interference lies in the restriction of potential

plaintiffs. The emotional and financial impacts to a

terminated public employee foreseeably disrupt

27

familial relations but such indirect consequences don’t

justify allowing relatives to sue the public employer

under an associational interference theory. See

Christensen, 483 F.3d at 464 (“[t]his is why being fired

from a public job (after any hearing that may be

required) does not create constitutional difficulties if it

turns out that the ex-employee becomes moody and

makes the family miserable”). Rather the employee’s

remedy is loss of consortium damages under state law.

But, because the Ninth Circuit allows liability for

unintentional/incidental disassociation, who possesses

standing to sue becomes far more complex and

uncertain. In Mann I, the City of Sacramento settled

with the next of kin, Joseph’s father, because Ninth

Circuit precedent rendered his associational standing

undeniable (and he possessed wrongful death standing

under state law), only to be confronted with new

federal claims by the siblings in Mann II.

Per Mann III, determining intrinsic associational

standing in the Ninth Circuit requires a district court

to essentially bifurcate each case so to first determine

which, if any, of plaintiff’s relationships with the

prisoner or decedent was “close” enough to qualify

under Roberts. Even more impractically, a defendant

desiring to settle prior to, or in the early stages of, suit

(as City did in Mann I), would either have to undertake

the Herculean task of ascertaining all the friends and

relatives it might need to bargain with, or else risk

paying money to solely the next of kin without

receiving the security of closure (as happened here).

Finally, the Ninth Circuit’s allowance of liability for

incidental disassociation clashes with standard First

28

Amendment analysis. Laws designed to regulate nonexpressive conduct that just incidentally burden a

protected speech right need not withstand any level of

constitutional scrutiny. See Arcara v. Cloud Books,

Inc., 478 U.S. 697, 707 (1986) (“we conclude the First

Amendment is not implicated by the enforcement of a

public health regulation of general application against

the physical premises in which respondents happen to

sell books”). No fathomable reason exists for different

treatment of non-regulatory action (here a police

shooting) directed at individual conduct unrelated to

association that incidentally disrupts or terminates an

intimate relationship. Just as “every civil and criminal

remedy imposes some conceivable burden on First

Amendment protected activities” (id. at 706), so does

every arrest, shooting, or incarceration disrupt the

suspect’s relationships.

Nor does incidental disruption square with due

process analysis. In rejecting negligence as sufficiently

culpable for constitutional liability, Daniels v.

Williams, 474 U.S. 327, 331 (1986) emphasized that

“[h]istorically, this guarantee of due process has been

applied to deliberate decisions of government officials

to deprive a person of life, liberty, or property.” And

this Court has never found a due process violation

where government action affected a family relationship

only incidentally. See Shaw v. Stroud, 13 F.3d 791, 805

(4th Cir. 1994). See Gorman, 910 F.3d at 48 (so

quoting Shaw). The Officers did not allegedly decide to

deprive associations. They did knowingly deprive life

but that liability was resolved in Mann I.

29

CONCLUSION

Though the right to form an intimate relationship

was recognized a century ago, the identity and

implementation of its originating Amendment(s)

remains clouded and chaotic. Almost four decades have

passed since Roberts and Rotary Club, yet appellate

panels continue to fundamentally disagree about the

nature and extent of protection afforded, even within

the same circuit and, here, in the same case. As Virgil

guided Dante through the perils of the underworld, so

may this Court, by granting this petition, provide a

beacon of analytical clarity to help judges and counsel

navigate the turbulent associational landscape.

Respectfully submitted,

MATTHEW RUYAK

SEAN RICHMOND

Office of City Attorney

915 I Street

Fourth Floor

Sacramento, CA 95814

(916) 808-5346

Counsel for Petitioners

City of Sacramento,

Sacramento Police

Department, and

Samuel D. Somers

JOHN A. WHITESIDES

(Counsel of Record)

SERENA M. WARNER

ANGELO, KILDAY & KILDUFF, LLP

601 University Avenue

Suite 150

Sacramento, CA 95825

(916) 564-6100

jwhitesides@akk-law.com

Counsel for Petitioners

John C. Tennis, and

Randy R. Lozoya