Reply Brief — Amanda N. Reich, et al., Petitioners v. City of Elizabethtown, Kentucky, et al.

Supreme Court briefSep 1, 2020

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No. 20-43

In the Supreme Court of the United States

AMANDA N. REICH & ELISE DAVIDSON, successor

administratrix of the estate of JOSHUA STEVEN

BLOUGH,

Petitioners,

CITY OF ELIZABETHTOWN, KENTUCKY,

MATTHEW MCMILLEN & SCOT RICHARDSON,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR PETITIONERS

MATTHEW W. STEIN

ROB ASTORINO, JR.

Stein Whatley

Attorneys, PLLC

2525 Bardstown Road

Suite 101

Louisville, KY 40205

(502) 553-4750

PAUL W. HUGHES

Counsel of Record

MICHAEL B. KIMBERLY

ANDREW A. LYONS-BERG

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

phughes@mwe.com

Counsel for Petitioners

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Reply Brief for Petitioners ..........................................1

A. The Court should resolve the circuit split

over the scope of the sham-affidavit rule. .......2

B. The Court should reverse or recalibrate

qualified immunity. ..........................................7

Conclusion .................................................................12

TABLE OF AUTHORITIES

Cases

Aerel, S.R.L. v. PCC Airfoils, L.L.C.,

448 F.3d 899 (6th Cir. 2006) .................................. 3

Baxter v. Bracey,

140 S. Ct. 1862 (2020) ...................................... 8, 10

Boyd v. Baeppler,

215 F.3d 594 (6th Cir. 2000) .......................... 10, 11

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ................................ 7

Palazzo ex rel. Delmage v. Corio,

232 F.3d 38 (2d Cir. 2000) ..................................... 5

Furcron v. Mail Ctrs. Plus, LLC,

843 F.3d 1295 (11th Cir. 2016) .............................. 3

Gemmy Indus. Corp. v. Chrisha Creations Ltd.,

452 F.3d 1353 (Fed. Cir. 2006) .............................. 5

Jamison v. McClendon,

__ F. Supp. 3d ___, 2020 WL

4497723 (S.D. Miss. Aug. 4, 2020)......................... 8

Jiminez v. All Am. Rathskeller, Inc.,

503 F.3d 247 (3d Cir. 2007) ........................... 1, 2, 5

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ...................................... 8, 10

Tolan v. Cotton,

572 U.S. 650 (2014) ............................................ 1, 6

United States v. Burris,

912 F.3d 386 (6th Cir. 2019) .................................. 7

Van Asdale v. International Game Tech.,

577 F.3d 989 (9th Cir. 2009) .............................. 1, 3

Wright v. Spaulding,

939 F.3d 695 (6th Cir. 2019) .................................. 7

iii

Cases—continued

Zadeh v. Robinson,

902 F.3d 483 (5th Cir. 2018) ................................. 8

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) ............................ 9, 10

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) .......................................... 10

Rules

Fed. R. Civ. P. 56(c)(4)................................................. 6

Fed. R. Evid. 612 ......................................................... 4

Other Authorities

1 McCormick on Evidence § 9 (8th ed. 2020) .............. 4

11 Moore’s Federal Practice § 56.94[5][c] (2020) ........ 5

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014) ................................. 9

REPLY BRIEF FOR PETITIONERS

Respondents shot and killed Joshua Blough, petitioner’s fiancé. In the ensuing Section 1983 litigation,

they were granted summary judgment based on the

confluence of two legal doctrines, both of which require

correction.

First, the district court disregarded petitioner’s

sworn affidavit as to the key issue in the case, invoking

the sham-affidavit rule. As properly applied, that rule

is a narrow exception to the normal role of the judge at

summary judgment, whose “function * * * is not to

weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S. 650, 656 (2014)

(quotation marks omitted). See also Van Asdale v. International Game Tech., 577 F.3d 989, 998 (9th Cir.

2009) (“[T]he sham affidavit rule is in tension with the

principle that a court’s role in deciding a summary

judgment motion is not to make credibility determinations or weigh conflicting evidence” and therefore

“should be applied with caution.”).

As applied by the Sixth Circuit, however, the exception threatens to swallow the rule. That court affirmed the exclusion of petitioner’s affidavit despite

that it was corroborated by other evidence, and that it

can only be said to conflict with her prior testimony if

that concept is expanded to the point of absurdity. As

the Third Circuit has recognized, the Sixth Circuit’s

approach to the sham-affidavit rule is an outlier among

the courts of appeals. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 254 (3d Cir. 2007) (acknowledging circuit split).

Second, the Sixth Circuit held in the alternative

that, even if it were to consider petitioner’s affidavit,

respondents would escape liability via the clearly es-

tablished law prong of qualified immunity. Pet. App.

21a-22a. But as our petition documented, there is

growing agreement among judges and other observers

that qualified immunity has no basis in statute or

common law; that it is unfair to litigants and bad for

the development of the law; and that it is long overdue

for reexamination. See Pet. 25-33.

The Court should grant certiorari to resolve these

important questions.

A. The Court should resolve the circuit split

over the scope of the sham-affidavit rule.

As we explained (Pet. 16-19), the Sixth Circuit is

on the short side of a recognized circuit conflict regarding the scope of the sham-affidavit rule. See Jiminez,

503 F.3d at 254 (recognizing that while “[s]ome federal

courts”—including the Sixth Circuit—“have adopted a

particularly robust version of the sham affidavit doctrine,” “this Court and other courts of appeals have

adopted a more flexible approach”).

1. Respondents deny the existence of this split—

but they can do so only by blithely disregarding what

the Sixth Circuit said, and did, in this case.

First, it is simply not true that the Sixth Circuit

“only excludes ‘plainly contradictory’ affidavits.” BIO

17. See also id. at 18 (asserting that “only subsequent

affidavits that plainly contradict prior testimony are

excluded”). That argument is directly at odds with

what the Sixth Circuit panel below expressly said:

[I]f no direct contradiction exists, “the district

court should not strike or disregard th[e] affidavit unless the court determines that the affidavit ‘constitutes an attempt to create a sham

fact issue.’”

Pet. App. 9a (quoting Aerel, S.R.L. v. PCC Airfoils,

L.L.C., 448 F.3d 899, 908 (6th Cir. 2006)) (emphasis

added). In other words, courts are permitted to exclude

an affidavit as a sham even “if no direct contradiction

exists.” Ibid.

Indeed, the Sixth Circuit went on to apply that

principle here, concluding that, “[e]ven * * * viewing

[petitioner’s] affidavit as noncontradictory,” it is appropriately excluded as a “sham.” Pet. App. 11a.

As we explained, this approach is wildly out of

touch with those of the other circuits, in which an actual contradiction of prior testimony is a necessary—

though not sufficient—precondition to applying the

sham-affidavit rule. Pet. 16-18; see, e.g., Van Asdale,

577 F.3d at 998-999 (requiring a “clear and unambiguous” “inconsistency * * * to justify striking the affidavit”); Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295,

1306 (11th Cir. 2016) (sham-affidavit rule “only operates in a limited manner to exclude unexplained discrepancies and inconsistencies”).

Second, respondents argue that the Sixth Circuit

“has adopted a narrow definition of the term ‘contradictory.’” BIO 17 (citing Pet. App. 9a). First of all, a

narrow definition of “contradictory” does little to restrain the doctrine where, as we have demonstrated,

affidavits may be excluded even if they are not contradictory. But even setting that problem aside, the Sixth

Circuit’s actual application of the doctrine belies any

suggestion that its conception of contradiction is narrow in practice.

The “contradiction” identified by the court below

was that petitioner, at her deposition, “said that she

did not know” “the distance between Blough and the of-

ficers.” Pet. App. 11a. 1 “Her [later] affidavit, asserting

that she does know, therefore contradicts.” Ibid.

As we explained (Pet. 21), to call that a contradiction is to deny the self-evident fact that people may,

through objective records, have their recollections refreshed. 2 And it is not as if petitioner provided no explanation for the difference in her recall at her deposition and afterwards. To the contrary, she stated that,

after having avoided the area for years “due to the severe emotional and mental trauma [she] suffered witnessing the shooting death of [her] fiancé,” she “returned to the scene of the incident” after her deposition

and recreated the shooting “with the aid of photographs of the scene taken by Kentucky State Police investigators.” Pet. App. 72a-73a (Reich affidavit).

Respondents find it “amazing[]” that petitioner

“then had total recall and vividly remembered, to the

inch, where everyone was positioned during this 2015

shooting.” BIO 20. But a picture is worth a thousand

snarky words. Compare again the photographs at petition appendix 76a and 77a. It should be no surprise at

all that someone who was present for the shooting

would be able to accurately reconstruct the scene based

In fact, while petitioner stated she did not “want to guess about

it,” she also testified, at the same deposition, to an estimated distance of “probably 20 feet” (Pet. App. 27a-28a)—a distance that

matches rather closely the 25.5-foot measurement reflected in her

affidavit.

See Fed. R. Evid. 612; 1 McCormick on Evidence § 9 (8th ed.

2020) (“It is clear from everyday experience that the latent

memory of an experience can sometimes be revived by a familiar

image or statement. * * * A person’s retrieval of any part of a past

experience can help the person recall other parts in the same field

of awareness, and a new experience can stimulate the recall of

prior similar events.”).

on the detailed, contemporaneous photographs petitioner had available to her. See Pet. 23-24.

This exercise also lays bare another way the Sixth

Circuit has departed from the other courts of appeals.

As we showed (at 18-19, 22-24), several circuits are explicit that they will “refuse[] to disregard” even an

“otherwise questionable affidavit” “[w]hen there is independent evidence in the record to bolster” it.

Jiminez, 503 F.3d at 254; accord Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43-44 (2d Cir. 2000); Gemmy Indus. Corp. v. Chrisha Creations Ltd., 452 F.3d

1353, 1359 (Fed. Cir. 2006); see 11 Moore’s Federal

Practice § 56.94[5][c] (2020) (“[W]hen there is independent evidence in the record to bolster an otherwise

questionable affidavit * * * courts usually refuse to disregard the affidavit because the concern that the affidavit was offered simply to create a sham dispute as to

a factual issue is alleviated.”).

The Kentucky State Police photographs constitute

exactly such corroborating evidence, as does the testimony of the officers themselves, who place all the actors in similar locations to those in petitioner’s reconstruction. See Pet. 23-24. The dissenting judge below

highlighted this corroboration (Pet. App. 29a-30a), but

the majority did not even respond—and neither do respondents.

In sum, the circuits are plainly divided as to the

scope of the sham-affidavit rule. See Jiminez, 503 F.3d

at 254 (acknowledging split).

2. Respondents say nothing at all in response to

our demonstration that the Sixth Circuit’s approach

represents a complete departure from the principles

that animate the sham-affidavit doctrine—and that

justify its existence as an exception to the normal rule

that a judge may not weigh the evidence at summary

judgment. See Pet. 19-25. That silence is telling.

3. Respondents offer a fallback position, asserting

that even if a circuit split exists, “[t]here is no need for

national uniformity.” BIO 26. To the contrary, the fact

that petitioner’s affidavit was excluded just because

her fiancé happened to be shot in Kentucky—rather

than one of thirty-one States and territories comprising

the Second, Third, Fifth, Ninth, Tenth, Eleventh, and

D.C. Circuits—is exactly the kind of geographical disparity this Court routinely exercises its certiorari jurisdiction to correct.

Moreover, as we pointed out, the issue is constantly

recurring. See Pet. 25 n.11 (noting that a Westlaw

search for “sham” within three words of “affidavit” returned 235 federal opinions issued within the last

twelve months). And it is important: If judges are permitted to freely disregard party affidavits at summary

judgment—based not on truly unexplained conflicts

with prior testimony but on a gut sense that the affidavit is unreliable—the entire character of the summary judgment procedure is transformed. See, e.g., Tolan, 572 U.S. at 656 (“[A] ‘judge’s function’ at summary

judgment is not ‘to weigh the evidence and determine

the truth of the matter.’”); Fed. R. Civ. P. 56(c)(4) (allowing “[a]n affidavit” to be “used to * * * oppose a motion” for summary judgment).

This is not some quirky idiosyncrasy of the Sixth

Circuit that may be safely let alone; rather, the shamaffidavit rule goes to the heart of summary judgment

procedure—in many respects the centerpiece of federal

civil litigation.

4. Finally, respondents suggest that certiorari is

inappropriate because considering petitioner’s affidavit

“would not change the outcome of the respondents’

summary judgment motion.” BIO 26 (capitalization altered). Not so. True, the district court observed in a

footnote, after extensive analysis of the case under respondents’ version of the facts, that “[e]ven if the Court

accepted Reich’s affidavit,” that “would not change the

Court’s ruling.” Pet. App. 53a-54a n.4. 3 But the court of

appeals disagreed. For the Sixth Circuit panel, the difference between a five-foot distance and a twenty-five

foot distance was the difference between constitutional

exoneration, on the one hand; and a holding based solely on qualified immunity, on the other:

[F]or the same reasons the officers did not violate constitutional law by shooting Blough if he

was five feet away, they did not violate clear

constitutional law by shooting Blough if he was

twenty-five to thirty-six feet away.

Pet. App. 21a-22a. In other words, if petitioner’s affidavit is considered, it is the clearly established law

prong of qualified immunity that does all the work in

this case. And as we explain, that doctrine is long

overdue for reconsideration.

B. The Court should reverse or recalibrate

qualified immunity.

The petition demonstrated that “a growing, crossideological chorus of jurists and scholars” is “urging reBut cf., e.g., Wright v. Spaulding, 939 F.3d 695, 701 (6th Cir.

2019) (“As Chief Justice Marshall explained * * * , ‘[t]he question

actually before the Court is investigated with care, and considered

in its full extent.’ Collateral issues rarely receive the same treatment. Thus, dictum is less likely to reflect a court’s deliberate

judgment.”) (citations omitted) (quoting Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 399 (1821)); United States v. Burris, 912 F.3d

386, 410 (6th Cir. 2019) (Kethledge, J., concurring in the judgment) (“The same criticism goes for alternative holdings.”).

calibration of contemporary immunity jurisprudence

and its real world implementation.” Zadeh v. Robinson,

902 F.3d 483, 499-500 (5th Cir. 2018) (Willett, J., concurring dubitante) (quotation marks omitted); see generally Pet. 26-30 (collecting authorities).

1. Respondents’ first response is to characterize

this demonstration as “noise from some news media,

certain special interest groups, or political forces.” BIO

28. Unlike respondents, we do not believe that the considered views of Justices Thomas and Sotomayor are

“noise.” See, e.g., Baxter v. Bracey, 140 S. Ct. 1862,

1864 (2020) (Thomas, J., dissenting from denial of certiorari) (“There likely is no basis for the objective inquiry into clearly established law that our modern

[qualified immunity] cases prescribe.”); Kisela v.

Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J.,

dissenting) (noting that the current “one-sided approach to qualified immunity transforms the doctrine

into an absolute shield for law enforcement officers,

gutting the deterrent effect of the Fourth Amendment”). The same goes for the numerous respected

lower-court judges who have urged reconsideration of

qualified immunity. Pet. 27-29. See also Jamison v.

McClendon, __ F. Supp. 3d ___, 2020 WL 4497723, at

*1-3, 7-17, 29 (S.D. Miss. Aug. 4, 2020) (offering exhaustive and scathing historical and doctrinal critique

of qualified immunity, concluding that “the status quo

is extraordinary and unsustainable,” and calling on

this Court to “waste no time in righting this wrong”).

2. As for a substantive response, respondents offer

four purported “policy reasons” for qualified immunity—but we have already answered each of them:

• “First, * * * the good faith decisions of government officials should be given the benefit of the

doubt.” BIO 28. That is a (charitable) descrip-

tion of qualified immunity, not a normative

justification for the doctrine.

•

“Secondly, qualified immunity allows courts to

winnow certain cases from their alreadycrowded dockets.” BIO 28. That is a bug, not a

feature: Qualified immunity allows courts to

avoid deciding difficult constitutional questions, leading to “stagnation” in the law of important rights. E.g., Zadeh v. Robinson, 928

F.3d 457, 479-480 (5th Cir. 2019) (Willett, J.,

dissenting in part) (describing the “Escherian

Stairwell” created by courts’ reliance on the

clearly established law prong: “Plaintiffs must

produce precedent even as fewer courts are

producing precedent.”); see Pet. 29. And, because plaintiffs must allege and then prove

that their constitutional rights were violated,

qualified immunity only changes the outcome

when there is a constitutional violation.

•

“Thirdly, * * * [g]ood candidates” will supposedly be “reluctant to serve and protect as a

sworn police officer if they have to risk their

own personal assets to do so.” BIO 29. As we

explained, officers are universally indemnified,

with individual officers ultimately responsible

for only 0.02% of damages paid out to victims

of police violence—or $200 out of a milliondollar damages award. Pet. 32; see Joanna C.

Schwartz, Police Indemnification, 89 N.Y.U. L.

Rev. 885, 890 (2014). 4

In 99.59% of cases resolved in plaintiffs’ favor, the individual officers involved contributed zero dollars to the settlement or damages award. Schwartz, supra, at 890.

•

“Fourthly,” respondents contend, “the immunity afforded by this doctrine is only ‘qualified,’

and is partial as opposed to absolute.” BIO 29.

That assumes the conclusion: One of our primary contentions is that, as applied, “qualified

immunity smacks of unqualified impunity, letting public officials duck consequences for bad

behavior.” Zadeh, 928 F.3d at 479 (Willett, J.,

dissenting in part); accord Kisela, 138 S. Ct. at

1162 (Sotomayor, J., dissenting) (the current

“approach to qualified immunity transforms

the doctrine into an absolute shield for law enforcement officers.”); see Pet. 27-28.

In any event, that these are purportedly “policy

reasons” for qualified immunity (BIO 28) is part of our

point. As Justice Thomas has repeatedly explained, the

fact that “the Court adopted the [clearly established

law] test not because of ‘general principles of tort immunities and defenses,’ but because of a ‘balancing of

competing values’ about litigation costs and efficiency”

is a reason to reconsider it, not to double down. Baxter,

140 S. Ct. at 1864 (Thomas, J., dissenting from denial

of certiorari). See also Ziglar v. Abbasi, 137 S. Ct. 1843,

1871 (2017) (Thomas, J., concurring in the judgment).

In other words, “[u]ntil we shift the focus of our inquiry

to whether immunity existed at common law, we will

continue to substitute our own policy preferences for

the mandates of Congress.” Id. at 1872; see Pet. 31-32.

3. The remainder of respondents’ brief is devoted to

cataloguing Sixth Circuit precedents on the use of

force 5 and arguing that “[t]here was no case on the

Some of respondents’ characterizations are curious. Respondents maintain that the court granted qualified immunity in Boyd

“despite the lack of imminent threat,” but admit that the suspect

books that clearly established beyond debate that what

these officers did was unconstitutional.” BIO 36; see id.

at 29-42. 6

That is all largely beside the point. To the extent

respondents are arguing that no constitutional violation occurred, if that were so clear, then the Sixth Circuit would have held as much—rather than relying on

the clearly established law prong of qualified immunity

once petitioner’s affidavit was considered. Pet. App.

21a-22a; cf. id. at 39a (Moore, J., dissenting) (explaining that under Sixth Circuit precedent, “reasonable police officers do not shoot non-compliant persons brandishing knifes when they are not advancing toward another individual in the immediate area, even if the person is mentally ill, suicidal, and/or yelling threats to

the officers.”).

And if respondents’ contention is instead that the

clearly established law prong was applied appropriately here, that is irrelevant: Our principal argument is

that the doctrine is wrong and should be reversed or

recalibrated. The Court should grant certiorari to do

just that.

there was “pointing his gun at the officers.” BIO 31 (citing Boyd v.

Baeppler, 215 F.3d 594 (6th Cir. 2000)).

In the course of their argument, respondents accuse us of several supposed misrepresentations that we are unable to locate anywhere in our petition. Compare BIO 38 (“Petitioners misrepresent

this, arguing that Richardson’s Shot #1 was to Blough’s back and

Shot #2 to his front.”), with Pet. 9 (citing the Sixth Circuit majority for the fact that Blough was shot in the back). Compare also

BIO 39 (“Petitioners further argue Blough’s arm was not raised.”),

ibid. (“Petitioners argue that these neighbors did not see Blough

and were safe in their homes.”), with Pet. (not saying either of

those things).

CONCLUSION

The Court should grant the petition.

Respectfully submitted.