Petition for Writ of Certiorari — Sonia Garcia, et vir, Petitioners v. Wesley Blevins, et al.
Supreme Court briefSep 28, 2020
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NO. 20-_____
In the
Supreme Court of the United States
SONIA GARCIA AND PHILLIP GARCIA,
Petitioners,
v.
WESLEY BLEVINS,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
RANDALL L. KALLINEN
COUNSEL OF RECORD
KALLINEN LAW PLLC
511 BROADWAY STREET
HOUSTON, TX 77012
(713) 320-3785
ATTORNEYKALLINEN@AOL.COM
COUNSEL FOR PETITIONERS
SEPTEMBER 28, 2020
SUPREME COURT PRESS
♦
(888) 958-5705
♦
BOSTON, MASSACHUSETTS
i
QUESTIONS PRESENTED
1. The United States Court of Appeals for the Fifth Circuit granted qualified
immunity reasoning facts demonstrating that a person shot and killed by police had
not threatened anyone, was holding a gun pointed down at his side, was not
suspected of any crime, and was not fleeing were irrelevant.
Was it clearly established that a person merely holding a gun has a Fourth
Amendment right to be free from deadly force?
2. May courts consider unpublished decisions as persuasive authority in
resolving the clearly established prong of qualified immunity cases?
ii
LIST OF PROCEEDINGS
United States Court of Appeals for the Fifth Circuit
No. 19-20494
Sonia Garcia; Phillip Garcia, v. Wesley Blevins; City of Houston
Date of Final Opinion: April 30, 2020
_________________
District Court for the Southern District of Texas, Houston Division
Civil Action No. 4:17-cv-00117
Garcia v. Blevins
Date of Final Order: June 13, 2019
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................................................................... i
LIST OF PROCEEDINGS ............................................................................................. ii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR WRIT OF CERTIORARI ................................................................... 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 2
INTRODUCTION .......................................................................................................... 2
STATEMENT OF THE CASE ....................................................................................... 4
I.
Factual Background .......................................................................................... 4
II. Procedural Background .................................................................................... 5
REASONS FOR GRANTING THE WRIT OF CERTIORARI...................................... 6
I.
THIS CASE REPRESENTS WEIGHTY AND CONSEQUENTIAL LEGAL PROPOSITIONS THAT DEPART FROM FEDERAL QUALIFIED IMMUNITY LAW....................... 6
A. The Appellate Court Committed Legal Error by Relying on Facts
Not in Evidence to Accord Qualified Immunity ........................................ 7
B. The Appellate Court Erred by Departing from Controlling Authority,
and a Robust Consensus of Persuasive Authority, Demonstrating
That the Law at Issue Was Clearly Established..................................... 11
1. The Right to Be Free from Deadly Force When Carrying a Gun
That Is Not Pointed at, or Used to Threaten, Anyone Was Clearly
Established ......................................................................................... 13
2. It Was Clearly Established That Deadly Force Is Unconstitutional
When an Officer Fires Before the Victim Has Time to Comply
with Command to Drop His Gun ....................................................... 16
II. THIS CASE RAISES AN IMPORTANT FEDERAL QUESTION OVER THE ROLE OF
UNPUBLISHED OPINIONS AS EVIDENCE OF CLEARLY ESTABLISHED LAW FOR
QUALIFIED IMMUNITY....................................................................................... 18
A. The Fifth Circuit’s Break with Controlling Authority Raises Concerns
About the Stagnation of Constitutional Law and the Integrity of Stare
Decisis ....................................................................................................... 19
iv
TABLE OF CONTENTS – Continued
Page
B. The Appellate Court’s Refusal to Consider Bridgewater Broke with
Supreme Court and Fifth Circuit Precedent Regarding the Role of
Unpublished Opinions in Qualified Immunity Cases ............................. 23
C. Erratic Application of Unpublished Opinions to the Clearly Established Prong Creates Intolerable Geographical Variances in Fourth
Amendment Law and Undermines Americans’ Faith in the Justice
System ....................................................................................................... 27
1. Geographic Distortion Is Intolerable in the Context of Clearly
Established Qualified Immunity Law ............................................... 29
2. Public Perception That Courts Strategically Withhold Publication
and Precedential Value Undermines the Legitimacy of the Federal
Judiciary ............................................................................................. 31
CONCLUSION............................................................................................................. 34
APPENDIX .................................................................................................................. 36
APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for the Fifth Circuit
(April 30, 2020) .................................................................................................... A-1
Order of the United States District Court for the Southern District of Texas
Adopting Memorandum and Recommendation
(June 13, 2019) .................................................................................................... A-9
Memorandum and Recommendation of the Magistrate Judge to the
United States District Court for the Southern District of Texas
(May 14, 2019) ................................................................................................... A-12
v
TABLE OF AUTHORITIES
Page
TABLE OF AUTHORITIES
CASES
Adickes v. S. H. Kress & Co.,
398 U.S. 144, 90 S.Ct. 1598 (1970) ........................................................................ 8
Anastasoff v. United States,
223 F.3d 898 (8th Cir. 2000) ................................................................................ 28
Anderson v. Liberty Lobby,
477 U.S. 242, 106 S.Ct. 2505 (1986) .................................................... 7, 10, 14, 24
Anderson v. Romero,
72 F.3d 518 (7th Cir. 1995) .................................................................................. 27
Ashcroft v. al-Kidd,
563 U.S. 731, 131 S.Ct. 2074 (2011) .................................................... 6, 14, 18, 24
Bahrampour v. Lampert,
356 F.3d 969 (9th Cir. 2004) ................................................................................ 28
Bazan v. Hidalgo County,
246 F.3d 481 (5th Cir. 2001) ................................................................................ 14
Bell v. City of E. Cleveland,
125 F.3d 855 (6th Cir. 1997) ................................................................................ 12
Bennett ex rel. Estate of Bennett v. Murphy,
120 F.App’x 914 (3d Cir. 2005) ............................................................................ 12
Bennett v. Murphy,
274 F.3d 133 (3d Cir.2001) ................................................................................... 12
Boyd v. Baepler,
215 F.3d 594 (6th Cir. 2000) ................................................................................ 12
Brandenburg v. Cureton,
882 F.2d 211 (6th Cir. 1989) .......................................................................... 12, 16
Brown v. Nocco,
788 F.App’x 669 (11th Cir. 2019) ......................................................................... 10
California v. Carney,
471 U.S. 386, 105 S.Ct. 2066 (1985) .................................................................... 25
Chappell v. City of Cleveland,
585 F.3d 901 (6th Cir. 2009) .................................................................................. 17
Childs v. City of Chicago,
No. 13-CV-7541, 2017 WL 1151049 (N.D. Ill. 2017) ........................................... 12
vi
TABLE OF AUTHORITIES—Continued
Page
City of Escondido, Cal. v. Emmons,
139 S.Ct. 500 (2019) ............................................................................................. 14
Cohens v. Virginia,
19 U.S. 264, 6 Wheat. 264 (1821) ........................................................................ 28
Cole Estate of Richards v. Hutchins,
959 F.3d 1127 (8th Cir. 2020) .............................................................................. 15
Cole v. Carson,
935 F.3d 444 (5th Cir. 2019) .......................................................................... 11, 15
Cooper v. Brown,
844 F.3d 517 (5th Cir. 2016) .......................................................................... 20, 26
Cooper v. Sheehan,
735 F.3d 153 (4th Cir. 2013) .......................................................................... 12, 15
Corbitt v. Vickers,
929 F.3d 1304 (11th Cir. 2019) ............................................................................ 28
Craighead v. Lee,
399 F.3d 954 (8th Cir. 2005) ................................................................................ 12
Curley v. Klem
298 F.3d 271 (3d Cir. 2002) .................................................................................. 16
Curnow v. Ridgecrest Police,
952 F.2d 321 (9th Cir. 1991) ................................................................................ 13
David v. City of Bellvue,
706 Fed.Appx. 847 (6th Cir. 2017) ....................................................................... 15
Davis v. Scherer,
468 U.S. 183, 104 S.Ct. 3012 (1984) .............................................................. 27, 30
Delaughter v. Woodall,
909 F.3d 130 (5th Cir. 2018) ................................................................................ 20
District of Columbia v. Wesby,
138 S.Ct. 577 (2018) ......................................................................................... 9, 14
Elder v. Holloway,
510 U.S. 510, 114 S.Ct. 1019 (1994) .............................................................. 27, 30
Estate of Lopez by & through Lopez v. Gelhaus,
871 F.3d 998 (9th Cir. 2017) ................................................................................ 15
Garcia v. Blevins,
957 F.3d 596 (5th Cir. 2020) ........................................................................ passim
vii
TABLE OF AUTHORITIES—Continued
Page
Garcia v. City of Hous., Tex.,
No. CV H-17-0117, 2019 WL 2477326 (S.D. Tex. 2019) ..................................... 10
George v. Morris,
736 F.3d 829 (9th Cir. 2013) ................................................................................ 15
Giardina v. Lawrence,
354 Fed.Appx. 914 (5th Cir. 2009) ....................................................................... 14
Glenn v. Washington Cty.,
673 F.3d 864 (9th Cir. 2011) ............................................................................ 7, 13
Graham v. Connor,
490 U.S. 386, 109 S.Ct. 1865 (1989) ................................................................ 6, 13
Graves v. Zachary,
277 F.App’x 344 (5th Cir. 2008) ..................................................................... 11, 23
Greer v. Ivey,
767 F.App’x 706 (11th Cir. 2019) ........................................................................... 8
Grissom v. Roberts,
902 F.3d 1162 (10th Cir. 2018) ............................................................................ 29
Harlow v. Fitzgerald,
457 U.S. 800 (1982) .............................................................................................. 18
Harris v. Roderick,
126 F.3d 1189 (9th Cir. 1997) .............................................................................. 13
Hensley on behalf of N. Carolina v. Price,
876 F.3d 573 (4th Cir. 2017) ................................................................................ 12
Hickson on behalf of Estate of Hickson v. City of Carrollton,
No. 3:18-CV-02747-B, 2020 WL 3798856 (N.D. Tex. 2020) ................................ 22
Hickson v. City of Carrollton,
No. 3:18-CV-02747-B (BH), 2020 WL 3810360 (N.D. Tex. 2020) ....................... 22
Hobart v. Estrada,
582 Fed.App’x. 348 (5th Cir. 2014) .................................................................. 8, 14
Hogan v. Carter,
85 F.3d 1113 (4th Cir. 1996) ................................................................................ 27
Hope v. Pelzer,
536 U.S. 730, 122 S.Ct. 2508 (2002) ........................................................ 18, 22, 25
Horton v. Pobjecky,
883 F.3d 941 (7th Cir. 2018) ................................................................................ 12
viii
TABLE OF AUTHORITIES—Continued
Page
James B. Beam Distilling Co. v. Georgia,
501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) ....................................... 28
King v. Taylor,
694 F.3d 650 (6th Cir. 2012) .......................................................................... 12, 16
Kisela v. Hughes,
138 S.Ct. 1148 (2018) ........................................................................................... 14
Manis v. Lawson,
585 F.3d 839 (5th Cir. 2009) .................................................................................. 8
McCloud v. Testa,
97 F.3d 1536 (6th Cir. 1996) ................................................................................ 29
McCoy v. Alamu,
950 F.3d 226 (5th Cir. 2020) ................................................................................ 20
McKenney v. Mangino,
873 F.3d 75 (1st Cir. 2017) ................................................................................... 11
Mecham v. Frazier,
500 F.3d 1200 (10th Cir. 2007) ............................................................................ 28
Mercado v. City of Orlando,
407 F.3d 1152 (11th Cir. 2005) ...................................................................... 13, 17
Michigan v. Bay Mills Indian Cmty.,
134 S.Ct. 2024 (2014) ..................................................................................... 30, 33
Mitchell v. Cervantes,
No. 3:10-CV-0030-K-BH, 2010 WL 4628003 (N.D. Tex. 2010) ........................... 23
Mitchell v. Forsyth,
472 U.S. 511 (1985) .............................................................................................. 27
Morgan v. Swanson,
659 F.3d 359 (5th Cir. 2011) ................................................................................ 18
Morris v. Noe,
672 F.3d 1185 (10th Cir. 2012) ............................................................................ 28
Morrow v. Meachum,
917 F.3d 870 (5th Cir. 2019) .......................................................................... 21, 32
Nance v. Sammis,
586 F.3d 604 (8th Cir. 2009) .................................................................... 13, 16, 17
Nielsen v. United States,
976 F.2d 951 (5th Cir. 1992) ................................................................................ 21
ix
TABLE OF AUTHORITIES—Continued
Page
Ohio Civil Serv. Emps. Ass’n v. Seiter,
858 F.2d 1171 (6th Cir. 1988) .............................................................................. 29
Papineau v. Heilman,
667 F.App’x 210 (9th Cir. 2016) ........................................................................... 15
Partridge v. City of Benton,
929 F.3d 562 (8th Cir. 2019) ................................................................................ 12
Patterson v. Allen,
No. 3:12-CV-14, 2013 WL 4875092 (S.D. Tex. 2013) .......................................... 22
Pearson v. Callahan,
555 U.S. 223, 129 S.Ct. 808 (2009) ........................................................................ 8
Pena v. City of Rio Grande City, Texas,
No. 19-40217, 2020 WL 3053964, ___ F.App’x ___ (5th Cir. 2020)..................... 22
Pena v. Porter,
316 Fed.Appx. 303 (4th Cir. 2009) ....................................................................... 12
Perez v. S. Estate of Lopez v. Gelhaus,
871 F.3d 998 (9th Cir. 2017) ............................................................................ 8, 11
Perez v. Suszczynski,
809 F.3d 1213 (11th Cir. 2016) ............................................................................ 13
Plumhoff v. Rickard,
572 U.S. 765, 134 S.Ct. 2012 (2014) ...................................................................... 6
Plumley v. Austin,
135 S.Ct. 828 (2015) ....................................................................................... 31, 32
Procunier v. Navarette,
434 U.S. 555 (1978) .............................................................................................. 18
Reese v. Anderson,
926 F.2d 494 (5th Cir. 1991) ................................................................................ 17
Reyes v. Bridgwater,
362 F.App’x 403 (5th Cir. 2010) ......................................................... 14, 21, 22, 23
Rogers v. King,
885 F.3d 1118 (8th Cir. 2018) .............................................................................. 12
Salazar-Limon v. City of Houston,
826 F.3d 272 (5th Cir. 2016) ................................................................................ 14
Saucier v. Katz,
533 U.S. 194, 121 S.Ct. 2151 (2001) .................................................................... 14
x
TABLE OF AUTHORITIES—Continued
Page
Shepherd on behalf of Estate of Shepherd v. City of Shreveport,
920 F.3d 278 (5th Cir. 2019) ................................................................................ 17
Singleton v. Darby,
609 F.App’x 190 (5th Cir. 2015) ........................................................................... 17
Smith v. City of Troy, Ohio,
874 F.3d 938 (6th Cir. 2017) ................................................................................ 17
Staples v. United States,
511 U.S. 600, 114 S.Ct. 1793 (1994) .................................................................... 34
Strittmatter v. Briscoe,
504 F.Supp.2d 169 (E.D. Tex. 2007) .................................................................... 23
Tennessee v. Garner,
471 U.S. 1, 105 S.Ct. 1694 (1985) ........................................................ 6, 11, 13, 14
Tenorio v. Pitzer,
802 F.3d 1160 (10th Cir. 2015) ............................................................................ 17
Thomas v. City of Columbus, Ohio,
854 F.3d 361 (6th Cir. 2017) .................................................................................. 8
Tolan v. Cotton,
572 U.S. 650, 134 S.Ct. 1861 (2014) .......................................................... 7, 10, 22
United States v. Lanier,
520 U.S. 259, 117 S.Ct. 1219 (1997) .................................................................... 27
Waldron v. Spicher,
954 F.3d 1297 (11th Cir. 2020) ............................................................................ 28
Weinmann v. McClone,
787 F.3d 444 (7th Cir. 2015) .......................................................................... 12, 15
Wesby v. District of Columbia,
816 F.3d 96 (D.C. Cir. 2016) ................................................................................ 20
Williams v. Bitner,
455 F.3d 186 (3d Cir. 2006) .................................................................................. 29
Wilson v. City of Des Moines,
293 F.3d 447 (8th Cir. 2002) ................................................................................ 16
Wilson v. Layne,
526 U.S. 603 (1999) .............................................................................................. 27
Winzer v. Kaufman Co.,
916 F.3d 464 (5th Cir. 2019) ................................................................................ 15
xi
TABLE OF AUTHORITIES—Continued
Page
Young v. City of Killeen,
775 F.2d 1349 (5th Cir. 1985) .............................................................................. 17
Young v. City of Providence ex rel. Napolitano,
404 F.3d 4 (1st Cir. 2005) ..................................................................................... 11
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV ......................................................................................... passim
U.S. Const. amend. XIV ................................................................................................. 5
STATUTES
28 U.S.C. § 1254(1) ........................................................................................................ 1
42 U.S.C. § 1983.......................................................................................................... 2, 5
JUDICIAL RULES
5th Cir. R. 47.5.1 .............................................................................................. 21, 23, 24
Fed. R. App. P. 32.1 ..................................................................................................... 30
Fed. R. Civ. P. 56(a) ....................................................................................................... 7
OTHER AUTHORITIES
Aaron L. Nielson & Christopher J. Walker,
Strategic Immunity, 66 EMORY L.J. 55 (2016) .................................................... 29
ADMIN. OFF. OF THE U.S. COURTS,
Annual Report of the Director: Judicial Business of the United States Courts,
table 2.5 (2019) available at https://www.uscourts.gov/sites/default/files/data_
tables/jff_2.5_0930.2019.pdf................................................................................. 25
Alex Kozinski & Fred Bernstein,
Clerkship Politics, 2 GREEN BAG 57 (1998) ......................................................... 32
Amelia A. Friedman,
Qualified Immunity in the Fifth Circuit: Identifying the “Obvious” Hole in
Clearly Established Law, 90 TEX. L. REV. 1283 (2012) ....................................... 22
Aristotle,
Ethica Nicomachea bk. V, W. D. Ross trans.,
Oxford Univ. Press 1925 (c. 350 B.C.E.).............................................................. 33
xii
TABLE OF AUTHORITIES—Continued
Page
Caleb E. Mason,
An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases
Debate in the Wake of the 2007 Amendments to the Federal Rules of
Appellate Procedure, 55 UCLA L. Rev. 643 (2008) ............................................. 31
David Frisch,
Contractual Choice of Law and the Prudential Foundations of Appellate
Review, 56 VAND. L. REV. 57 (2003) ..................................................................... 33
Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts,
56 STAN. L. REV. 1435 (2004) ............................................................................... 32
Patricia M. Wald,
The Rhetoric of Results and the Results of Rhetoric: Judicial Writings,
62 U. CHI. L. REV. 1371 (1995) ............................................................................. 31
Pauline T. Kim,
Lower Court Discretion,
82 N.Y.U. L. REV. 383 (2007) ............................................................................... 32
Richard S. Arnold,
Unpublished Opinions: A Comment,
1 J. APP. PRAC. & PROCESS 219 (1999) ................................................................. 31
Thomas E. O’Brien,
The Paradox of Qualified Immunity: How a Mechanical Application of the
Objective Legal Reasonableness Test Can Undermine the Goal of Qualified
Immunity, 82 TEXAS L. REV. 767 (2004) .............................................................. 22
William Baude,
Is Qualified Immunity Unlawful?,
106 CALIF. L. REV. 45 (2018) ................................................................................ 20
1
PETITION FOR WRIT OF CERTIORARI
Petitioners Sonia and Phillip Garcia ask this Court issue a writ of certiorari to
review the judgment of the United States Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The decision of the United States Court of Appeals for the Fifth Circuit, Garcia
v. Blevins, 957 F.3d 596 (5th Cir. 2020), is attached to this petition in the appendix
at A-1. Magistrate’s memorandum and recommendation order to the United States
District Court for the Southern District of Texas, Garcia v. City of Houston, Texas,
No. 4:17-CV-0117, 2019 WL 2477326, at *5 (S.D. Tex. May 14, 2019) is attached to
this petition at A-12. The district judge’s memorandum and order adopting Garcia
v. Blevins, No. 4:17-CV-117, 2019 WL 2474653 (S.D. Tex. June 13, 2019) is attached
at A-9.
JURISDICTION
The Court of Appeals entered judgment April 30, 2020. This Court’s jurisdiction
is invoked pursuant to 28 U.S.C. § 1254(1). The Petitioner asserted below and is
asserting herein the deprivation of rights secured by the United States
Constitution.
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
●
U.S. Const. amend. IV
U.S. Const., amend. IV 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.”
●
42 U.S.C. § 1983
42 U.S.C. § 1983 provides that every person who, under color of state law subjects,
any citizen of the United States to the deprivation of any Constitutional right,
shall be liable to the injured party.
INTRODUCTION
Houston Police Officer Wesley Blevins (hereinafter, Blevins), shot and killed
Phillip Garcia, Jr. (hereinafter Garcia) in a restaurant parking lot where Blevins
was working as a security guard. Garcia’s parents sued Blevins for violating their
son’s Fourth Amendment rights. Both the district court and the appellate court held
that while genuine disputes of fact were material to determining whether Blevins
violated Garcia’s constitutional rights, the courts erred by underestimating those
disputes’ relevance to the clearly established prong. Controlling authority and a
robust consensus of persuasive authority counsel that the facts ignored below
matter when analyzing the reasonableness of deadly force. At summary judgement,
Garcia’s parents offered eyewitness interviews demonstrating Blevins’s claim that
3
Garcia pointed a gun at him was false. Everyone but Blevins claimed Garcia never
pointed his gun nor threatened anyone and pointed at the ground. Controlling
authority, and a robust consensus of persuasive authority relied on similar facts to
hold that a person is not an immediate threat merely because he holds a gun.
Nevertheless, the Fifth Circuit reasoned that had Garcia held a knife rather than a
gun, this claim would have overcome qualified immunity. Even if this Court agrees
that the law was not clearly established, this case is an ideal vehicle to take up an
important constitutional question: whether a person fearing for his life has the right
protect himself by simply holding a gun, without being shot and killed by police.
Even more alarming than the appellate courts ambivalence to dispositive facts,
is its pattern of avoiding its own prior holdings in its treatment of unpublished
opinions. While the Federal Rules of Appellate Procedure allow wide discretion
among the sister circuits over which decisions to publish and the weight to assign
unpublished opinions, the Fifth Circuit’s exercise of that discretion raises serious
questions that undermine the foundational principles of our common law system
that like cases be treated alike.
The Garcias respectfully ask this Court review these practices for manifest
unfairness as typified in the holding below, not just for their sake, but for similarly
situated putative claimants in Fifth Circuit qualified immunity cases.
4
STATEMENT OF THE CASE
I.
Factual Background
On January 16, 2015, Garcia met friends at a Houston restaurant where
Blevins a City of Houston police officer, was working off duty as a security guard.
A verbal argument developed between Garcia’s companions and another group
of restaurant patrons. The argument then migrated to the restaurant’s patio. Once
outside, the other patrons made violent threats and Garcia began to fear for his life.
Several restaurant security guards, including Blevins, were present. All of them
were armed. When the argument on the patio turned into a fistfight the security
guards, including Blevins, broke up the fight and ordered both groups to leave the
patio area. Next, the two groups exited the patio and entered the parking lot, where
the argument resumed. Having been threatened with bodily injury and death and
recognizing that he was outnumbered, Garcia retrieved a gun from his car to protect
himself. One of the guards observed Garcia with his gun and broadcast to the others
via police radio that a patron was armed; there was no communication suggesting
that Garcia threatened anyone, pointed the gun at anyone, nor that he fired it.
After hearing the broadcast, Blevins ran to the back of the parking lot and searched
the area for an armed patron. Blevins eventually spotted Garcia holding the gun to
Garcia’s side.
What happened next is disputed. Blevins alleges he shouted twice before firing
at Garcia. A fellow Houston police officer working at the restaurant, who was the
5
closest witness to Blevins, reported he did not hear Blevins shout anything. Among
other police witnesses questioned at the scene some reported Blevins shouted only
once, mere seconds before firing. Blevins alleged Garcia pointed his gun at the
officer. But multiple witnesses repudiated that claim, stating that Garcia’s gun was
pointed down, at his hip, and that he was attempting to pass the gun to a friend, or
otherwise temporarily dispose of it.
Blevins aimed to kill, firing three bullets that pierced Garcia’s chin, chest, and
abdomen. Garcia died in an ambulance en route to Clear Lake Regional Medical
Center.
II. Procedural Background
Garcia’s parents, Sonia Garcia and Phillip Garcia, Sr. (hereinafter, “the
Garcias”) filed this civil rights lawsuit in the United States District Court for the
Southern District of Texas, Houston Division. The Garcias filed claims under 42
U.S.C. § 1983 for Fourth and Fourteenth Amendment violations of excessive force
against Blevins. The Garcias also sought to hold the City of Houston liable for
maintaining a policy that caused those same constitutional violations against their
son. On February 6, 2018, the District Court dismissed all Fourteenth Amendment
claims against both defendants. The case was then referred to a magistrate judge.
On May 14, 2019, the magistrate judge recommended judgement against the
Garcias, holding that although plaintiffs raised a genuine issue of material fact over
the constitutional violation, they failed to demonstrate the violation was clearly
established as a matter of law. The district court adopted the magistrate’s
6
memorandum on June 13, 2019; the Garcias filed timely appeal. The United States
Court of Appeals for the Fifth Circuit entered judgement on April 30, 2020,
affirming the district court’s ruling.
REASONS FOR GRANTING THE WRIT OF CERTIORARI
I.
THIS CASE REPRESENTS WEIGHTY AND CONSEQUENTIAL LEGAL PROPOSITIONS
THAT DEPART FROM FEDERAL QUALIFIED IMMUNITY LAW.
The reasonableness of deadly force is generally analyzed under Graham v.
Connor (490 U.S. 386, 109 S.Ct. 1865 (1989)) and Tennessee v. Garner (471 U.S. 1,
105 S.Ct. 1694 (1985)). See, e.g., Plumhoff v. Rickard, 572 U.S. 765, 774, 134 S.Ct.
2012, 2020 (2014). Courts consider “the totality of the circumstances” giving careful
attention to the facts including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting or attempting to evade arrest. Garner, 471 U.S., at
8-9, 105 S.Ct., at 1699-1700; Graham, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872
(1989). The most relevant Graham factor implicated in this case is the immediacy of
the perceived threat.
The Garcias concede that the Fifth Circuit’s reasoning is correct, in that
whether Garcia posed an immediate threat is too general an inquiry to clearly
define the constitutional right at issue with the specificity required. See, e.g.
Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 2083 (2011). However, in
extending qualified immunity, the appellate court erred by ignoring controlling and
7
a robust consensus of persuasive authority that put the reasonableness of Blevins’s
specific actions beyond debate. The appellate court compounded that error by
relying on disputed facts to resolve the clearly established question, in derogation of
the rule that limits courts from resolving such disputes at the summary judgement
stage. See FED. R. CIV. P. 56(a). These two are reasons enough for this Court to
reverse the dangerous precedent set below.
A. The Appellate Court Committed Legal Error by Relying on Facts Not in
Evidence to Accord Qualified Immunity.
The holding below represents an unprecedented legal proposition that the
Fourth Amendment tolerates deadly force against a man suspected of no crime, who
was not fleeing, and was holding a gun pointed at the ground because he “could”
have turned the gun on officers. Garcia v. Blevins, 957 F.3d 596, 602 (5th 2020). If
that were the law, then the fact “that a person was armed would always end the
inquiry.” Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011). However,
courts in virtually every circuit—including the Fifth Circuit prior to Garcia—
recognize that facts similar to the ones relevant here are central to analyzing the
reasonableness of deadly force.
In Tolan v. Cotton (572 U.S. 650, 656, 134 S.Ct. 1861, 1866 (2014)) the Supreme
Court emphasized that “under either prong, courts may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.” A dispute of
material fact is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248,
106 S.Ct. 2505, 2510 (1986).
8
Exceeding mere materiality, facts such as where the weapon was and what was
happening with the weapon are inquiries crucial to the reasonableness
determination. Greer v. Ivey, 767 F.App’x 706, 710 (11th Cir. 2019); Thomas v. City
of Columbus, Ohio, 854 F.3d 361, 366 (6th Cir. 2017); Lopez v. Gelhaus, 871 F.3d
998 (9th Cir. 2017). Before Garcia, courts in the Fifth Circuit similarly understood
that, with respect to the reasonableness of deadly force, the relevant inquiry focuses
on “the act that led [the officer] to discharge his weapon.” Manis v. Lawson, 585
F.3d 839, 845 (5th Cir. 2009). A plaintiff overcomes qualified immunity by
establishing a genuine issue of material fact over whether that act supplied
probable cause. Hobart, 582 Fed.App’x. 348, 355 (quoting Manis, 585 F.3d at 843).
Here, the act that led Blevins to discharge his weapon is disputed, not just by the
Garcias, but by multiple police witnesses, including another officer.
Nevertheless, the appellate court conceded on one hand that these factual
disputes preempted qualified immunity with respect to the inquiry’s first prong,
while on the other hand claiming those same facts were irrelevant to dispose of the
clearly established prong. While it is true that courts may exercise discretion under
Pearson v. Callahan (555 U.S. 223, 236, 129 S.Ct. 808, 818 (2009)) to end a qualified
immunity inquiry on clearly established alone, they may not resolves disputes in
favor of the movant to do so. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90
S.Ct. 1598, 1608 (1970).
In this case the version of events, as recited by the appellate court, is even more
favorable to Blevins than his own recitation. See, e.g., Garcia at 599 (Blevins
9
unholstered his own gun and ordered Garcia to drop his. Garcia did not. Instead, he
kept walking, passing between two parked vehicles.”) cf. Garcia, Brief of Appellees
2019 WL 6003418 (5th Cir. 2019), *3 (“Blevins then observed Garcia take cover
between two vehicles. Blevins ordered him to drop his gun and get on the ground.”).
It is one thing to say that relevant facts are irrelevant; it is legal error to contort the
facts and distinguish those from clearly established law. The appellate court’s
recitation paints a very different picture than the Garcias, witnesses, and Blevins
himself supplied the courts.
We know this misstep was outcome-determinative for two reasons. For one, the
appellate court’s decision turned entirely on the single fact of the alleged failure to
comply, rather than engaging the totality-of-the-circumstances analysis required
under Graham. In fact, this Court admonished a lower court for evaluating facts in
this manner, finding the totality-of-circumstances test “precludes this sort of divideand-conquer analysis.” District of Columbia v. Wesby, 138 S.Ct. 577, 583-85 (2018).
Likewise, a central element of the Garcias’s attack on immunity is the fact that
their son did not fail to comply, but that Blevins shot him before Garcia could react.
The appellate court’s erroneous resequencing on this point devastates the Garcias’s
claim because it reads as though more time transpired between the command and
the shot. It also contradicts evidence that Blevins’s command preceded his shot by a
10
“3 Mississippi count”,1 another eyewitness, a Houston police officer, who claimed
that Blevins issued no command at all, and Blevins’s own retelling of events in a
different sequence than the one the court adopted and used to justify its casedooming holding. See Garcia at 602.
Finally, the appellate court erroneously found the fact that Garcia was aware of
Blevins’s presence was “undisputed”—a painfully unfair assumption, given the only
person who could offer proper evidence of what Garcia “was aware” in his final
moments is, of course, unable to speak for himself here. A shout from a security
guard who happened to be an off-duty Houston Police Department officer, from
across a crowded parking, lot is hardly sufficient evidence to demonstrate Garcia
was aware a police officer had issued him a specific command. See Brown v. Nocco,
788 F.App’x 669, 674 (11th Cir. 2019) (noting “we cannot credit an officer’s version
of events just because a plaintiff cannot personally rebut it”). Which of the various
stories most accurately reflects what occurred is unequivocally, in our courts, a
question for a jury. See Tolan at 656 (“‘judge’s function’ at summary judgment is not
‘to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.’”)(quoting Anderson, 106 S.Ct. 2505,
2510).
1 Garcia v. City of Houston, Texas, No. CV H-17-0117, 2019 WL 2477326, at *5 (S.D. Tex. May
14, 2019), report and recommendation adopted sub nom. Garcia v. Blevins, No. 4:17-CV-117, 2019
WL 2474653 (S.D. Tex. June 13, 2019), aff’d, 957 F.3d 596.
11
A litany of controlling precedent emphasizing the importance of the precise facts
disputed here (that Garcia’s gun was pointed down and that Blevins gave Garcia no
time to comply, or if he even issued a command before shooting him) are explicated
below. What is important here, is that the appellate court impermissibly contorted
the facts to ignore genuine material disputes to avoid application of controlling
precedent.
B. The Appellate Court Erred by Departing from Controlling Authority, and a
Robust Consensus of Persuasive Authority, Demonstrating That the Law at
Issue Was Clearly Established.
Federal circuit courts generally agree that the mere presence of a gun, without
more, will not vindicate the reasonableness of deadly force. See, e.g., Perez, 809
F.3d 1213, 1220. That consensus included the Fifth Circuit, prior to the appellate
court’s ruling in Garcia. See Cole v. Carson, 935 F.3d 444, 454-55 (5th Cir. 2019) (en
banc); Graves v. Zachary, 277 F.App’x 344, 348 (5th Cir. 2008). Likewise numerous
persuasive holdings accord that a person possessing a firearm is not an immediate
threat per se; this proposition was clearly established before2 Blevins fatally shot
Garcia and not just in the Fifth Circuit. U.S. courts of appeals in the First,3 Third,4
2 Even cases that postdate Blevins’s actions base their findings that the right at issue here was
clearly established on precedent decided before January 2015.
3 McKenney v. Mangino, 873 F.3d 75 (1st Cir. 2017) (“ . . . precedents make pellucid that the
most relevant factors in a lethal force cases . . . are the immediacy of the danger posed by the
decedent and the feasibility of remedial action.”) (citing Garner, 471 U.S. at 11-12, 105 at 1694);
Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 2005).
12
Fourth,5 Sixth,6 Seventh, 7 Eighth,8 Ninth,9 and Eleventh10 all held that possession
of a firearm is not sufficient to establish the reasonableness of deadly force for
4 Bennett ex rel. Estate of Bennett v. Murphy, 120 F.App’x 914, 919 (3d Cir. 2005) (a
“reasonable officer would understand, without reference to any other case law” shooting suspect who
refused to drop gun but never pointed it was unconstitutional) (citing Bennett v. Murphy, 274 F.3d
133, 136 (3d Cir.2001)).
5 Hensley on behalf of N. Carolina v. Price, 876 F.3d 573, 584 (4th Cir. 2017) (finding fact that
officers witnessed plaintiff engaged in physical altercation did not change reasonableness calculus to
affirm denial of immunity); Cooper v. Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (recognizing “an
officer does not possess the unfettered authority to shoot” someone “because that person is carrying a
weapon”); Pena v. Porter, 316 Fed.App’x. 303, 312 (4th Cir. 2009) (Mere presence of weapon is not
sufficient to justify deadly force.”).
6 King v. Taylor, 694 F.3d 650, 653, 662-63 (6th Cir. 2012); Brandenburg v. Cureton, 882 F.2d
211, 213, 215 (6th Cir. 1989); cf. Bell v. City of E. Cleveland, 125 F.3d 855 (6th Cir. Oct. 14, 1997), at
* 1 (suspect shot after he pointed a gun at the officer); Boyd v. Baepler, 215 F.3d 594, 599 (6th Cir.
2000) (officers facing a man who repeatedly pointed his gun at them, and continued to point his gun
as he fled).
7 Childs v. City of Chicago, No. 13-CV-7541, 2017 WL 1151049, at *9 (N.D. Ill. Mar. 28, 2017)
(denying immunity, even where officer mistakenly believed plaintiff fired gun at him); Weinmann,
787 F.3d 444, 450 (clearly established where plaintiff had a shotgun but never aimed it); cf. Horton
v. Pobjecky, 883 F.3d 941, 951 (7th Cir. 2018) (deadly force reasonable where officer witnessed
commission of felony and plaintiff made threats).
8 Partridge v. City of Benton, 929 F.3d 562, 566 (8th Cir. 2019); Craighead v. Lee, 399 F.3d
954, 961 (8th Cir. 2005) (deadly force objectively unreasonable where suspect pointed gun upward);
cf. Rogers v. King, 885 F.3d 1118, 1121-22 (8th Cir. 2018) (deadly force objectively reasonable where
13
qualified immunity. In surveying those numerous cases, two points regarding the
factual circumstance that should have been considered by the Garcia court emerge.
Specifically, controlling cases and a robust consensus of persuasive authority gave
fair warning to any reasonable officer that, where the victim was holding a gun
pointed down and did not have time to comply (or was attempting to comply) before
being shot, the use of deadly force violates a constitutional right. See, e.g. Garner,
471 U.S. 1, 11-12, 105 S.Ct. 1694, 1701 (finding deadly force constitutionally
unreasonable unless suspect11 “threatens the officer with a weapon or there is
probable cause to believe that he has committed a crime involving the infliction or
threatened infliction of serious physical harm”).
1. The Right to Be Free from Deadly Force When Carrying a Gun That Is
Not Pointed at, or Used to Threaten, Anyone Was Clearly Established
Distilling from the general principle that possession of a firearm, without more,
fails to satisfy Graham’s threat factor, the federal courts also agree that specific
facts present here clearly established a constitutional violation. Specifically, the
suspect raised gun toward person); Nance v. Sammis, 586 F.3d 604, 611 (8th Cir. 2009) (finding
clearly established that suspect does not pose an immediate threat though he seemingly possesses a
gun).
9 Glenn, 673 F.3d 864 (9th Cir. 2011); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997)
(officers “may not kill suspects . . . simply because they are armed.”); Curnow v. Ridgecrest Police,
952 F.2d 321, 325 (9th Cir. 1991).
10 Perez v. Suszczynski, 809 F.3d 1213, 1220 (11th Cir. 2016); Mercado, 407 F.3d 1152, 11591160.
11 As a reminder, Garcia was not suspected of any crime.
14
appellate court dismissed the relevance of the Garcias’s evidence that their son held
his gun pointed at the ground when Blevins killed him. Insisting that “‘[w]e have
never required officers to wait until a defendant turns towards them, with weapon
in hand’” (Garcia at 602 (quoting Salazar-Limon v. City of Houston, 826 F.3d 272,
279 n.6 (5th Cir. 2016), as revised (June 16, 2016))), the appellate court lost sight of
the fact that our jurisprudence does not require a plaintiff to present a case directly
on point in order to overcome a qualified immunity defense. City of Escondido, Cal.
v. Emmons, 139 S.Ct. 500, 505, 202 (2019); D.C. v. Wesby, 138 S.Ct. 577, 590, 199
(2018); al-Kidd, 563 U.S. 731, 741 (2011); Anderson, 483 U.S. 635, 640, 107 S.Ct.
3034 (1987).
Adding specificity to the Garner holding, other cases controlling here indeed
found that the position of a weapon and the proximity of potential victims, including
whether the suspect faced officers, were relevant factors in determining
reasonableness of deadly force. Hobart v. Estrada, 582 Fed.App’x. 348, 355 (5th Cir.
2014); Giardina v. Lawrence, 354 Fed.App’x. 914, 916 (5th Cir. 2009); Bazan v.
Hidalgo County, 246 F.3d 481, 488 (5th Cir. 2001) (quoting Garner, 471 U.S. at 11).
While the line between reasonable and excessive force often lies in a “hazy border”
(Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151 (2001)) deadly force usually does
not; the reasonableness of its use is clearly established. Reyes v. Bridgewater, 362
F.App’x 403, 406 (5th Cir. 2010); see also Kisela v. Hughes, 138 S.Ct. 1148, 1153
(2018) (emphasizing the suspect’s proximity to potential victim); Cf. Winzer v.
15
Kaufman Co., 916 F.3d 464, 468 (5th Cir. 2019) (granting qualified immunity
because the suspect fired shots at officer).
Disregard for precedent is nowhere more evident than in the Garcia court’s
handling of Cole, 935 F.3d 444, 454-55. The appellate court found that case
distinguishable from the facts here, even though it involved an individual with a
gun who “made no threatening movements toward the officers, was facing away
from the officers, was not warned by the officers . . . and may have been unaware of
the officers’ presence.” Garcia at 601. Unfortunately for the Garcias, the court based
its contravening holding here on disputed facts. Id. (“Here, by contrast, it is
undisputed Garcia was aware of Blevins’s presence and that Blevins ordered Garcia
to put down his weapon, but Garcia refused to do so.”)
In other circuits, the fact that a suspect points his weapon at the ground has
long and consistently been recognized as foreclosing qualified immunity. See, Cole
Estate of Richards v. Hutchins, 959 F.3d 1127, 1134 (8th Cir. 2020); Gelhaus, 871
F.3d 998, 1008 (9th Cir. 2017), cert denied; David v. City of Bellevue, 706 Fed.App’x.
847 (6th Cir. 2017); Papineau v. Heilman, 667 F.App’x 210, 211 (9th Cir. 2016)
(clearly established where plaintiff was not pointing gun at officer); Weinmann v.
McClone, 787 F.3d 444, 450 (7th Cir. 2015); George v. Morris, 736 F.3d 829, 838-39
(9th Cir. 2013) (noting “unsurprising[ly]” officers’ use of deadly force would be
objectively unreasonable if gun “trained on the ground” and made no “serious verbal
threat”); Cooper, 735 F.3d 153, 159-160 (4th Cir. 2013) (deadly force objectively
unreasonable and contrary to clearly established law where plaintiff held shotgun
16
pointed ground and made no “threats”); King v. Taylor, 694 F.3d 650, 653, 662-63
(6th Cir. 2012); Nance, 586 F.3d 604, 611; Wilson v. City of Des Moines, 293 F.3d
447, 451-54 (8th Cir. 2002) (whether possibly armed suspect turned and faced
officers was “the most important fact” in the reasonableness analysis); Curley v.
Klem, 298 F.3d 271, 283 (3d Cir. 2002) (dispute over whether suspect pointed gun at
officer or at the ground precluded qualified immunity as a matter of law); Cureton,
882 F.2d 211, 213, 215.
Nevertheless, the appellate court shrugged off the fact that Garcia’s gun,
according to everyone but Blevins, was pointed down, and insisted that the only fact
that mattered here was Blevins’s allegedly ignored command. Putting aside for the
moment that fact was also disputed, overwhelming authority belies the appellate
court’s reasonableness analysis here. Given controlling case law and a robust
consensus of persuasive authority, it should have been obvious to Blevins that
holding a gun pointed at the ground was not enough to provoke a constitutional use
of deadly force.
2. It Was Clearly Established That Deadly Force Is Unconstitutional When
an Officer Fires Before the Victim Has Time to Comply with Command
to Drop His Gun
Another equally relevant fact the appellate court ignored is that Blevins began
firing on Garcia within seconds of yelling, from a distance, for Garcia to drop his
gun. “When, as here, a police officer does not give sufficient time to comply with an
order prior to initiating force against a person, that person’s resulting failure to comply
immediately with the order cannot, without more, give rise to a governmental
17
interest in the use of significant force.” Singleton v. Darby, 609 F.App’x 190, 204, J.
Dennis, concurring (5th Cir. 2015); See also Smith v. City of Troy, Ohio, 874 F.3d
938, 946 (6th Cir. 2017) (holding clearly established in 2014 “that a police officer
violates a suspect’s right to be free from excessive force by repeatedly tasing the
suspect without giving him a chance to comply with orders”); Tenorio v. Pitzer, 802
F.3d 1160, 1166 (10th Cir. 2015) (holding lack of time to comply precluded qualified
immunity); Nance, 586 F.3d 604, 607; Mercado v. City of Orlando, 407 F.3d 1152,
1157 (11th Cir. 2005). (denying qualified immunity where officer fired a shot
“within seconds” of command); Cf. Chappell v. City of Cleveland, 585 F.3d 901, 912
(6th Cir. 2009) (granting qualified immunity where evidence did not support plaintiff’s
claim that he was not given time to comply). Unlike the Chappell plaintiff, the
Garcias offered eyewitnesses evidence that Blevins fired within seconds of shouting
at Garcia, while a Houston police officer, stated he did not hear Blevins say anything.
In other cases where the appellate court upheld qualified immunity based on
failure to comply, the officers who successfully raised the defense issued multiple
commands before resorting to deadly force. See Estate of Shepherd v. City of
Shreveport, 920 F.3d 278, 281 (5th Cir. 2019); Reese v. Anderson, 926 F.2d 494 (5th
Cir. 1991); Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985).
The Fifth Circuit made much of the difference between a knife and a gun in
distinguishing otherwise like cases. However, where the issue is time to comply,
that distinction cuts in the Garcias’s favor. Of course it takes longer to charge at
someone with a knife than it does to fire a gun. But where the issue is lack of time
18
to comply, that is the wrong comparison. Facility of use is irrelevant; a logical
analysis recognizes that it takes longer to drop a gun than a knife because the
former can discharge if not carefully lowered to the ground. Therefore, a reasonable
officer would have allowed Garcia more time to comply than a suspect with a knife,
for safety reasons alone.
II. THIS CASE RAISES AN IMPORTANT FEDERAL QUESTION OVER THE ROLE OF
UNPUBLISHED OPINIONS AS EVIDENCE OF CLEARLY ESTABLISHED LAW FOR
QUALIFIED IMMUNITY.
When determining which sources may clearly establish the law, this Court
places great discretion in the hands of the United States courts of appeals to
develop rules. See Harlow v. Fitzgerald, 457 U.S. 800, 818 n.32 (1982) (reasoning
“we need not define here the circumstances under which ‘the state of the law’ should
be ‘evaluated by reference to the opinions of this Court, of the Courts of Appeals, or
of the local District Court.’” (quoting Procunier v. Navarette, 434 U.S. 555, 565
(1978)). However, this Court defined parameters around clearly established that are
notably more expansive than the Fifth Circuit’s stagnating analysis, by waiving the
requirement for controlling precedent for ‘obvious cases’ and where there exists a
“robust consensus of persuasive authority.” Hope v. Pelzer, 536 U.S. 730, 739, 122
S.Ct. 2508, 153 L.Ed.2d 666 (2002); Ashcroft, 131 S.Ct. at 2084. Though at one time
the Court of Appeals for the Fifth Circuit mindfully exercised these principles,
recently the court has failed to apply them. See, e.g., Morgan v. Swanson, 659 F.3d
359, 371-72 (5th Cir. 2011) (en banc) (recognizing that a robust consensus of
persuasive authority may theoretically clearly establish the law). But Supreme
19
Court guidance on qualified immunity analysis is not a theory and the appellate
court’s consistent failure to give due weight to persuasive authority has created a
“Catch-22” where plaintiffs’ constitutional rights are stagnating under the appellate
court’s heavy thumb on the scale against clearly established.
The Garcia court’s refusal to consider unpublished opinions as evidence of
clearly established law merits this Court’s attention for three reasons. First, it
represents a departure from Supreme Court precedent. Second, this case is an apt
vehicle for this Court to issue guidance that would encourage uniformity among the
circuits, in an area that badly needs it. Finally, if ultimately resolved in the
Garcias’s favor, such guidance would bolster public perception of the fairness of
qualified immunity.
A. The Fifth Circuit’s Break with Controlling Authority Raises Concerns About
the Stagnation of Constitutional Law and the Integrity of Stare Decisis.
The appellate court’s announcement in Garcia that unpublished cases may not
clearly establish law raises three important issues worthy of this Court’s review: its
failure to recognize obvious constitutional violations, avoidance in creating
important precedent by not publishing the few opinions that do recognize them,
and, most unfairly, its newly consecrated practice of improperly burdening plaintiffs
with the appellate court’s own fear of Supreme Court reversal.
First, the opinion below referenced two cases for the proposition that
unpublished opinions cannot clearly establish the law. Garcia at 601. But that was
not the holding in either case cited, both of which relegated to footnotes the
appellate court’s view toward unpublished opinions. See McCoy v. Alamu, 950 F.3d
20
226, 233 n. 6 (5th Cir. 2020); Cooper v. Brown, 844 F.3d 517, 525 n.8 (5th Cir.
2016)). In fact, the Cooper footnote expressly recognizes unpublished opinions’
power to “illustrate clearly established law.” 844 F.3d at 525 n.8. (“although an
unpublished case may not create clearly established law, it may yet evince
established law”).
If Garcia’s sweeping application of Cooper is a correct, and courts in the Fifth
Circuit could never rely on unpublished opinions to resolve the clearly established
prong, why would the court bury such weighty doctrine in footnotes? The answer is
Garcia’s announcement sounds a dog that never barked before. In fact, Delaughter
v. Woodall (909 F.3d 130, 140 (5th Cir. 2018)) demonstrates that Garcia and McCoy
both misread Cooper. In Delaughter, the appellate court cited to Cooper to justify its
reliance on three unpublished cases to find clearly established law in a qualified
immunity case. 909 F.3d 130, 140.
Turning back to the McCoy footnote, not only is it a misreading of Cooper, its
reasoning benefits the Garcias by revealing the fact that the appellate court
improperly factors probability of reversal into its clearly established calculus. The
footnote’s language is so revealing it merits full citation:
“Some might find this [grant of qualified immunity] a puzzling result,
insofar as QI might have us find a violation in one breath, but, in the next,
hold it too debatable to prevent immunity. No matter . . . . The Supreme
Court has repeatedly reversed courts of appeals for failing to define
established law narrowly, and we must follow that binding precedent.”
McCoy at note 6 (citing Wesby v. District of Columbia, 816 F.3d 96, 102
(D.C. Cir. 2016) and William Baude, Is Qualified Immunity Unlawful?, 106
CALIF. L. REV. 45, 83 (2018)).
21
Perhaps the strongest evidence that the appellate court is improperly motivated
by fear of reversal comes from Morrow v. Meachum, 917 F.3d 870 (5th 2019). The
Morrow court demonstrated how impossibly high the bar is set for Fifth Circuit
plaintiffs to overcome qualified immunity when it held that even if a plaintiff
managed to carry its “doozy” of a burden, a court may yet withhold remedy when,
for any inarticulable reason, it may discern a whiff of existential dread of reversal
from above. See Id. at 874-877.
Furthermore, the decision not to publish Bridgewater in the first instance
violates the Fifth Circuits’ rule that provides “opinions that may in any way interest
persons other than the parties to a case should be published.” 5th Cir. R. 47.5.1. The
very nature of qualified immunity analysis, insofar as it requires plaintiffs to point
to factually similar cases, means no qualified immunity case in the Fifth Circuit
should go unpublished. In practice, despite the rule’s sweeping language, the Fifth
Circuit withholds publication of qualified immunity decisions at a rate higher than
the national average. Neilsen, supra note 22. Following circuit rules and prior
holdings, Bridgewater must be brought to bear in Garcia, because its precedential
status should never have come into question.
The appellate court’s similar exercise of discretion in the context of obvious
cases, specifically its failure to recognize them, raises serious concerns over the
stagnation of individual rights and the integrity of stare decisis. The appellate court
insisted it is bound by Supreme Court analysis of the clearly established prong to
grant qualified immunity, even over the existence of factual disputes. See Garcia at
22
602. But a long line of cases make clear this Court’s permissive guidance on
persuasive authority as a source of clearly established law is no more pronounced
than in cases where, as here, the unconstitutionality of the conduct at issue is
obvious. Hope, 536 U.S. 730, 741; Tolan, 572 U.S. 650, 656.
The Fifth Circuit’s aberrant reluctance among the courts of appeals to recognize
the ‘obvious case’ has attracted scholarly attention: “Compared to other circuits, the
Fifth Circuit appears to misconstrue the concept of an obvious case and fails to
allow for a reasonably expansive analysis of sources of clearly established law.”12
What makes this creep away from Supreme Court precedent particularly
disturbing, is the appellate court’s exercise of discretion not to publish the few
opinions in which it does apply the obviousness doctrine. See Pena v. City of Rio
Grande City, Texas, No. 19-40217, 2020 WL 3053964, at *7, ___ F.App’x ___ (5th
Cir. 2020); Hickson v. City of Carrollton, No. 3:18-CV-02747-B (BH), 2020 WL
3810360, at *6 (N.D. Tex. June 16, 2020), report and recommendation adopted sub
nom. Hickson on behalf of Estate of Hickson v. City of Carrollton, No. 3:18-CV02747-B, 2020 WL 3798856 (N.D. Tex. July 7, 2020); Patterson v. Allen, No. 3:12CV-14, 2013 WL 4875092, at *3 (S.D. Tex. Sept. 11, 2013); Bridgewater, 362 F.App’x
12 Amelia A. Friedman, Qualified Immunity in the Fifth Circuit: Identifying the “Obvious”
Hole in Clearly Established Law, 90 TEX. L. REV. 1283, 1294 (2012); Thomas E. O’Brien, The
Paradox of Qualified Immunity: How a Mechanical Application of the Objective Legal
Reasonableness Test Can Undermine the Goal of Qualified Immunity, 82 TEXAS L. REV. 767 (2004)
(arguing that the Fifth Circuit’s application of “objective reasonableness” unnecessarily harms the
interests of plaintiffs).
23
403, 408 (5th Cir. 2010); Graves, 277 F.App’x 344, 349; Mitchell v. Cervantes, No.
3:10-CV-0030-K-BH, 2010 WL 4628003, at *1, *6-7 (N.D. Tex. Oct. 12, 2010);
Strittmatter v. Briscoe, 504 F.Supp.2d 169, 176 (E.D. Tex. 2007). The decision not to
publish these cases, in derogation of Rule 47.5.1., dooms every subsequent plaintiff
who presents similar facts.
The Garcia court’s denouncement of unpublished opinions in the context of
clearly established law, combined with its habit of withholding publication of
opinions that recognize the unconstitutionality of force under novel factual
circumstances should alarm this Court. This developing pattern that increasingly
stacks the deck against Fifth Circuit plaintiffs in qualified immunity cases will lead
to a dangerous environment where officers know that the more outrageous or
bizarre their conduct, the less likely they will be held accountable for constitutional
violations.
B. The Appellate Court’s Refusal to Consider Bridgewater Broke with Supreme
Court and Fifth Circuit Precedent Regarding the Role of Unpublished
Opinions in Qualified Immunity Cases.
The importance of recognizing the analytical, albeit not precedential, value of
unpublished opinions in the context of the clearly established prong flows from the
very nature of the opinions themselves: 1) they articulate clearly established law as
applied to varying fact patterns, 2) they represent important analyses by appellate
courts, which for most litigants is their court of last resort, and 3) the volume of
qualified immunity cases that go unpublished leave a vast corpus of important
factual application of legal doctrine completely inaccessible, not just to putative
24
plaintiffs, but to the officials seeking clarity who qualified immunity doctrine was
designed to protect.
First, the legal proposition announced in an unpublished opinion is by definition
clearly established. We know this because if it were not, the decision would be
ineligible for unpublished status; it is by now axiomatic that unpublished opinions
do not make new law but only apply the established law. These are supposed to be
the ‘easy cases’, relegated to federal reporter appendices because they purportedly
have no impact beyond the parties at bar. See, e.g., 5th Cir. R. 47.5.1. That criteria
cannot be met in the context of qualified immunity because courts rely heavily on
previous factual analysis. If an unpublished case may not be used as evidence of
clearly established law, a plaintiff who brings to bar similar facts is automatically
doomed, even if that opinion found those facts established a constitutional violation.
Consequently, the decision to publish or not has a direct effect on qualified
immunity analysis because evidence of clearly established law necessarily alters the
“contours of the right” and the clarity with which an official would understand that
the right has been violated. See al-Kidd, 563 U.S. at 742.
Second, the opinions of the United States courts of appeals are fundamentally
important sources of law. Their deliberations over clearly established law in light of
various factual circumstances, published or not, provide what the qualified
immunity inquiry needs most from prior cases—applications of “extremely abstract
rights” to specific facts that provide clear guidance to government officials about
what rights exist and what conduct violates them. Anderson, 483 U.S. 635, 639;
25
Hope, 536 U.S. 730, 739. Qualified immunity requires careful drawing of lines—
where a pending case differs just a little, but not too much, from an earlier one—
that the federal judiciary is able to ever more sharply define the contours of the
rights at issue.
To identify contours that will endure, the courts of appeals engage in a
painstaking scrutiny of case-by-case adjudication. The lower courts rely on those
opinions to refine their approach to difficult questions of constitutional law.
“Deliberation on [these] question[s] over time winnows out the unnecessary and
discordant elements of doctrine and preserves ‘whatever is pure and sound and
fine.’” California v. Carney, 471 U.S. 386, 400-01, 105 S.Ct. 2066, 2074 (1985). All
this judicial heavy lifting, intrinsically valuable to qualified immunity, is lost in
unpublished opinions. Where immunity for deadly force is concerned, the stakes are
too high to abide such a loss.
Beyond this qualitative loss, the quantitative loss is substantial; unpublished
opinions comprise the majority of federal opinions at 87 percent. See ADMIN. OFF. OF
THE U.S. COURTS, Annual Report of the Director: Judicial Business of the United
States Courts (2019), available at https://www.uscourts.gov/sites/default/files/data_
tables/jff_2.5_0930.2019.pdf (showing percentage of unpublished opinions in the
twelve-month period ending September 30, 2019). Fewer precedents mean less
articulable law. It is not only plaintiffs who suffer from unclarity over what is
clearly established. More opinions applying settled law to differing facts mean more
factually specific sources from which government officials can judge the reasonable-
26
ness of a given action. Severely limiting the number of cases (to just 13 percent of
all federal decisions) that may be analyzed for factual similarity to determine
clearly established, functionally undermines the theoretical purpose of that prong,
the gravamen of which is fair warning. Unpublished opinions hold a trove of
information to guide the delicate analytical balance between arguably the gravest
constitutional violations and an officer’s ability to protect the public without fear of
litigation. Consequently, when appellate courts ignore unpublished decisions in
qualified immunity cases, they ignore not only the best evidence of what the clearly
established law is, but also our largest source of it.
Even if unpublished opinions are not precedential and may not themselves
announce new law, the fact of their unpublished status gives evidence that the law
in their relevant area is clearly established. The appellate court knows this and
articulated so in Cooper and other cases. To hold otherwise would be to assert that
courts are using unpublished opinions to make sui generis decisions not justified by
settled law. Although just such an argument has been advanced by some scholars
and jurists using statistical and anecdotal support, it is an untenable position for
this Court to take. 13
13 The Garcias understand concerns regarding court resources that led to the practice, and
avoid debating the constitutionality of withholding publication, or precedential status. They beg only
this Court’s recognition of their value in qualified immunity analysis, whether or not it announces
unpublished opinions are a proper source of clearly established law.
27
C. Erratic Application of Unpublished Opinions to the Clearly Established
Prong Creates Intolerable Geographical Variances in Fourth Amendment
Law and Undermines Americans’ Faith in the Justice System.
The courts of appeals uniformly agree that their own binding decisions apply to
qualified immunity cases within their own circuits. That is where the uniformity
ends: whether the decisions of sister circuits, unpublished decisions, district court
decisions, or state court decisions, may play a role in clearly establishing the law
varies from circuit to circuit. These discrepancies persist despite the fact that this
Court made clear that categorical exclusions of all but binding authority are
unnecessary and expressly allows reliance on persuasive authority. See United
States v. Lanier, 520 U.S. 259, 269 117 S.Ct. 1219 (1997) (rejecting proposition that
only Supreme Court holdings may clearly establish the law); Wilson v. Layne, 526
U.S. 603, 616, 119 S.Ct. 1692, 1700 (1999); Mitchell v. Forsyth, 472 U.S. 511, 533,
105 S.Ct. 2806, 2819 (1985). In Elder v. Holloway (510 U.S. 510, 114 S.Ct. 1019
(1994)) this Court articulated a permissive view of which opinions may render law
clearly established counselling courts to use their “full knowledge” of relevant
precedents when analyzing clearly established. Id. at 516 (quoting Davis v. Scherer,
468 U.S. 183, 192, 104 S.Ct. 3012, 3018 n.9 (1984).
Nevertheless, courts of appeals for the Fourth,14 Seventh,15 and now the Fifth,
Circuits have expressly dismissed unpublished opinions as sources of clearly
14 See, e.g., Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996).
15 Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995).
28
established law. Meanwhile courts of appeals in the Eighth, Ninth,16 Tenth17 and
Eleventh Circuits18 recognize unpublished opinions’ value to the clearly established
prong.
The Eighth Circuit has raised a structural constitutional question about the
general denial of unpublished opinions’ precedential value when it held that its own
appellate court rule that allowed the court to avoid the precedential effect of any
prior cases “expand[ed] the judicial power beyond the bounds of Article III.”
Anastasoff v. United States, 223 F.3d 898, 900 (8th Cir. 2000) (“The Framers of the
Constitution considered these principles to derive from the nature of judicial
power . . . .” (citing Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 399 (1821); James
B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544, 111 S.Ct. 2439) (finding “the
applicability of rules of law is not to be switched on and off according to individual
hardship”).
Recently, the Tenth Circuit issued a destabilizing opinion, reasoning that courts
may rely on unpublished opinions only when reliance benefits defendants, not
plaintiffs, in a qualified immunity suit. Grissom v. Roberts, 902 F.3d 1162, 1168,
16 Bahrampour v. Lampert, 356 F.3d 969, 977 (9th Cir. 2004).
17 See, e.g., Morris v. Noe, 672 F.3d 1185, 1197 n. 5 (10th Cir. 2012); but see Mecham v.
Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007).
18 See Corbitt v. Vickers, 929 F.3d 1304, 1319 n.14 (11th Cir. 2019) (citing Waldron v. Spicher,
954 F.3d 1297, 1307 (11th Cir. 2020).
29
1170-71 (10th Cir. 2018) (“even an unpublished opinion can demonstrate that the
law was not clearly established.”).
The remaining circuits, though not resolving the specific question, have issued
opinions indicating courts may rely on unpublished opinions. See Williams v.
Bitner, 455 F.3d 186, 193 n.7 (3d Cir. 2006) (holding that nonbinding opinions
“nonetheless may be relevant to the ‘clearly established’ determination”); McCloud
v. Testa, 97 F.3d 1536, 1555 n.28 (6th Cir. 1996) (finding unpublished decisions
represent circuit court judgments of how settled law applies to specific examples);
but see Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988).
Such variance across the sister circuits gives rise to two specific concerns
relevant to this case. First, that a geographical variance in the development of
constitutional law is intolerable in the context of qualified immunity. Worse,
accusations about courts’ self-motivated use of discretion in the treatment of
unpublished opinions foments public questioning of the legitimacy of our courts.
1. Geographic Distortion Is Intolerable in the Context of Clearly
Established Qualified Immunity Law.
Erratic consideration of sources of clearly established law “may reveal a
geographic distortion in the development of constitutional law,” suggesting that
“ . . . the Constitution means something different—and government actors are
constrained by different clearly established rights—among the fifty states.”19
19 Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 EMORY L.J. 55, 98 (2016).
30
Although Federal Rule of Appellate Procedure 32.1 tacitly permits the courts of
appeals to decide what weight to assign unpublished opinions, this Court has made
clear that a court should use its “full knowledge” of its own and other relevant
authorities in determining whether a right is clearly established. See Fed. R. App.
P. 32.1 Advisory Committee Notes (“Rule 32.1 is extremely limited . . . . It says
nothing about what effect a court must give to one of its unpublished opinions . . . ”);
Elder at 516 (quoting Davis at 192 n.9).
The degree of disuniformity tolerated in other areas of the law is profoundly
disquieting in the context of shielding state officials from suit, even when courts
determine the official violated a constitutional right. Because the substantive test
for qualified immunity turns on whether the right at issue was clearly established
at the time of its violation, it matters a great deal whether an unpublished opinion
can clearly establish a right.
Whatever the value of comity in our federalist common law system, the Framers
never intended it should eclipse fairness in the rule of law and the foundational
precept that like cases should be treated alike. See Michigan v. Bay Mills Indian
Cmty., 134 S.Ct. 2024, 2036 (2014).
31
2. Public Perception That Courts Strategically Withhold Publication and
Precedential Value Undermines the Legitimacy of the Federal Judiciary.
A second concern relevant to the Garcia holding implicates not only this and
future cases, but the legitimacy of the federal judiciary. Scholars20 and past and
current jurists21 have raised constitutional, ethical, and prudential concerns, in the
context of qualified immunity over both the decision whether to publish and what
value to assign if not published. The most alarming aspect of that criticism is the
suggestion that judges may be strategically asserting their discretion, publishing
opinions that follow Supreme Court precedent and declining to publish opinions
that do not, with the goal of avoiding reversal.
Recently, Justice Thomas forcefully rebuked an appellate court’s handling of an
unpublished opinion in a qualified immunity case, calling it a “disturbing aspect of
the Fourth Circuit’s decision, and yet another reason to grant review. . . . It is hard
to imagine a reason that the Court of Appeals would not have published this opinion
20 Caleb E. Mason, An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases
Debate in the Wake of the 2007 Amendments to the Federal Rules of Appellate Procedure, 55 UCLA
L. REV. 643, 646 (2008) (collecting authorities relating to “[t]he jurisprudential, political, equitable,
ethical, and constitutional issues raised by the use of [unpublished opinions]” (footnotes omitted)).
21 See Plumley v. Austin, 135 S.Ct. 828, 831 (2015) (Thomas, J., dissenting from the denial of
certiorari); Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings,
62 U. CHI. L. REV. 1371, 1374 (1995); Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.
APP. PRAC. & PROCESS 219, 222 (1999).
32
except to avoid creating binding law for the Circuit.” Plumley v. Austin, 135 S.Ct.
828, 831 (2015).
As discussed above, Morrow v. Meachum all but made a court’s fear of reversal
a factor in resolving clearly established inquiries in the Fifth Circuit (917 F.3d 870,
876). This shocking directive for courts to default, when in doubt, to the movant for
summary judgement makes it difficult to deny that the appellate court is so afraid
of being reversed that, even when genuine issues of material (and in this case
dispositive) facts exist as to the conduct in question, the court would rather shrug
off a possible constitutional violation than risk the court’s own embarrassment on
being reversed. This is precisely the sort of self-interested decision making that
jurists and scholars have warned against for the sake of public faith in the
legitimacy of the federal judiciary.
To be sure, ideology’s impact on judicial decisions is frequently overstated.22
Confidence in the justice systems depends on the perception that judges try in
earnest to ‘get the law right,’ in that they apply traditional legal principles to reach
predictable results, and the statistics seem to bear that perception out as reality.23
Nevertheless, the importance of maintaining that perception cannot be overstated.
22 Alex Kozinski & Fred Bernstein, Clerkship Politics, 2 GREEN BAG 57, 59-60 (1998).
23 Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 396 (2007). But see,
Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435,
1484 (2004) (“Even if there were no credible evidence of misconduct or structural inequality in the
33
The “foundation stone of the rule of law” is that like cases be treated alike. Bay
Mills, 134 S.Ct. 2024, 2036; see also Aristotle, Ethica Nicomachea, BK. V, at 1131a-b
(W. D. Ross trans., Oxford Univ. Press 1925) (c. 350 B.C.E.)). The fairness of our
common law system lies substantially in the appellate process, in which the higher
courts ensure “inferior tribunals obey the law, thereby promoting the perception of
legitimacy by ensuring that the ultimate outcome of litigation is based on
impersonal and reasoned judgments.” David Frisch, Contractual Choice of Law and
the Prudential Foundations of Appellate Review, 56 VAND. L. REV. 57, 75 (2003).
Of course, the Garcias do not here accuse the appellate court of strategic
publication to avoid review or backtrack from precedent. Nevertheless, to the degree
this case highlights trends that stray from settled intra-circuit precedent and
Supreme Court law, the Garcias beg attention to these issues on certiorari.
However, if the Court determines this case is not the appropriate vehicle, or for
some prudential reason, that now is not the time to take up this question, the
Garcias pray in the alternative for a narrower ruling: this Court could either
summarily reverse or remand to the court of appeals to reconsider in light of the
robust consensus of persuasive authority, as catalogued above, holding Garcia’s
right to be free of deadly force when he was holding a gun pointed at the ground,
was suspected of no crime, threatened no one, and had no time to comply before
being fatally shot, was clearly established.
operation of unpublication, the lack of transparency it produces damage[s] the legitimacy of the
judicial system . . . .”).
34
CONCLUSION
In Staples v. United States, 511 U.S. 600, 610-611, 114 S.Ct. 1793, 1799 (1994)
this Court rejected the proposition that “owning a gun is not an innocent act” when
it refused to impose strict liability for possession of an illegal firearm. If, “despite
their potential for harm, guns generally can be owned in perfect innocence,” it
follows that they can be legally carried in innocence as well. See Id. at 611; Id. at
614 (noting that “there is a long tradition of widespread lawful gun ownership by
private individuals in this country.”). The Staples majority was not willing to
subject the gun owner in that case to a criminal trial and potential imprisonment,
strictly because the item at issue was a gun. But here, there was no judge and jury;
there was only executioner and Garcia paid the ultimate price for retrieving his gun
to protect himself from violent threats. A holding that stands for such an irrational
result—that the victim of deadly force would have a clearly established Fourth
Amendment right if he were holding a knife rather than a gun—should not stand.
Because this case represents pure legal error and weighty constitutional
questions regarding individual rights and the integrity of the federal judiciary, the
Garcias pray this Court grant review over what is developing into a pattern of
misapplication of its qualified immunity doctrine in the Fifth Circuit.
35
Respectfully submitted,
/s/ Randall L. Kallinen
RANDALL L. KALLINEN
COUNSEL OF RECORD
KALLINEN LAW PLLC
511 BROADWAY STREET
HOUSTON, TX 77012
(713) 320-3785
ATTORNEYKALLINEN@AOL.COM
NOTE: STUDENT ATTORNEY ERIKA MCDONALD
CONTRIBUTED TO THE DRAFTING OF THIS PETITION.
COUNSEL FOR PETITIONERS
SEPTEMBER 28, 2020
36
APPENDIX
OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for the Fifth Circuit
(April 30, 2020) .................................................................................................... A-1
Order of the United States District Court for the Southern District of Texas
Adopting Memorandum and Recommendation
(June 13, 2019) .................................................................................................... A-9
Memorandum and Recommendation of the Magistrate Judge to the
United States District Court for the Southern District of Texas
(May 14, 2019) ................................................................................................... A-12
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.