Petition for Writ of Certiorari — Monica Voss, Petitioner v. Gregory G. Goode

NO. 20-_______

In the

Supreme Court of the United States

MONICA VOSS,

Petitioner,

v.

GREGORY G. GOODE,

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 PETITIONER

JULY 8, 2020

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Whether an appellate court may, sua sponte, impute the actions of a third

party to a § 1983 claimant as the sole basis for extending qualified immunity for an

unlawful Fourth Amendment seizure.

2. Whether the right to be free from arrest for disagreeing with a police officer,

when the conduct consists of speech alone, is clearly established.

ii

LIST OF PARTIES

Petitioner-Appellant

•

Monica Voss

Respondent-Appellee

•

Gregory Goode

iii

LIST OF PROCEEDINGS

United States Court of Appeals for the Fifth Circuit

No. 19-20167

Monica Voss v. Gregory G. Goode; Fort Bend County, Texas

Date of Final Opinion: March 24, 2020

_________________

District Court for the Southern District of Texas, Houston Division

Civil Action No. H-17-1408

Monica Voss v. Gregory G. Goode

Date of Final Order: February 20, 2019

iv

TABLE OF CONTENTS

Page

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

LIST OF PARTIES ........................................................................................................ ii

LIST OF PROCEEDINGS ............................................................................................ iii

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

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

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

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 2

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 5

REASONS FOR GRANTING THE WRIT OF CERTIORARI...................................... 8

I.

THIS CASE IMPLICATES CRUCIAL AND NOVEL QUESTIONS ABOUT THE

LAWFULNESS OF FOURTH AMENDMENT SEIZURES .............................................. 8

A. This Court Should Clarify Whether a Third Party’s Alleged Failure

to Comply with an Officer’s Command May Establish the

Reasonableness of Probable Cause to Arrest Another .............................. 9

B. States May Expand but Not Limit Constitutional Protections

Beyond Federal Law ................................................................................. 12

C. The Appellate Court Raised Dispositive Issue Sua Sponte .................... 14

II. THIS COURT SHOULD RESOLVE THE CIRCUIT SPLIT OVER WHETHER THE

EXISTENCE OF AN AFFIRMATIVE DEFENSE IS A BAR TO QUALIFIED

IMMUNITY. ........................................................................................................ 16

III. IN THE ALTERNATIVE, THIS COURT SHOULD SUMMARILY REVERSE TO DENY

QUALIFIED IMMUNITY....................................................................................... 18

A. This Court’s Precedent Clearly Established Voss’s Right to Be Free

from Arrest ............................................................................................... 18

B. Circuit Court Precedent, Including the Fifth Circuit, Clearly

Established Voss’s Right to Be Free from Arrest .................................... 19

C. Texas Law Clearly Established an Exception to Criminal

Interference for Conduct Consisting of Mere Speech.............................. 22

v

TABLE OF CONTENTS – Continued

Page

CONCLUSION............................................................................................................. 23

APPENDIX .................................................................................................................. 24

APPENDIX TABLE OF CONTENTS

OPINION AND ORDER

Opinion of the United States Court of Appeals for the Fifth Circuit

(March 24, 2020) .............................................................................................App.1a

Order of the United States District Court for the Southern District of

Texas Houston Division Adopting Magistrate Judge’s Memorandum

and Recommendation (February 20, 2019) .................................................App.10a

Memorandum and Recommendation of the United States District Court

for the Southern District of Texas Houston Division

(January 31, 2018)........................................................................................App.11a

OTHER DOCUMENTS

Plaintiff’s First Amended Original Complaint

(August 16, 2017) .........................................................................................App.25a

Principal Brief of Appellees filed in the United States Court of Appeals

for the Fifth Circuit (July 12, 2019) ............................................................App.35a

Select Police Recordings from June 20, 2016 Arrest, Links to Audio Files .....App.48a

vi

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton,

483 U.S. 635, 107 S.Ct. 3034 (1987) .............................................................. 18, 21

Arkansas v. Sullivan,

532 U.S. 769 (2001) .............................................................................................. 13

Ashcroft v. al–Kidd,

563 U.S. 731, 131 S.Ct. 2074 (2011) ...................................................................... 5

Barnes v. State,

206 S.W.3d 601 (Tex. Crim. App. 2006) .................................................... 9, 10, 22

Carney v. State,

31 S.W.3d 392 (Tex. App. 2000) ..................................................................... 16, 22

Chaplinsky v. New Hampshire,

315 U.S. 568, 62 S.Ct. 766 (1942) ............................................................. 10, 11, 14

Childers v. Iglesias,

848 F.3d 412 (5th Cir. 2017) ................................................................................ 22

City of Galveston v. Thomas,

800 F.Supp.2d. 826 (S.D. Tex. 2011) ................................................................... 16

City of Houston v. Hill,

482 U.S. 451, 107 S.Ct. 2502 (1987) ............................................................ passim

Colten v. Kentucky,

407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) ........................................... 19

Cooper v. Aaron,

358 U.S. 1 (1958) .................................................................................................. 12

Copeland v. Locke,

613 F.3d 875 (8th Cir. 2010) ................................................................................ 20

District of Columbia v. Wesby,

138 S.Ct. 577 (2018) ....................................................................................... 17, 18

Enlow v. Tishomingo Cty., Miss.,

962 F.2d 501 (5th Cir. 1992) ................................................................................ 20

Fair v. City of Galveston,

915 F.Supp. 873 (S.D. Tex.),

aff’d, 100 F.3d 953 (5th Cir.1996) ......................................................................... 13

vii

TABLE OF AUTHORITIES—Continued

Page

Freeman v. Gore,

483 F.3d 404 (5th Cir. 2007) ................................................................................ 20

Fridley v. Horrighs,

291 F.3d 867 (6th Cir. 2002) ................................................................................ 16

Gorra v. Hanson,

880 F.2d 95 (8th Cir. 1989) .................................................................................. 11

Haggerty v. Tex. S. Univ.,

391 F.3d 653 (5th Cir. 2004) ................................................................................ 21

Hall v. State,

283 S.W.3d 137 (Tex.App.-Austin 2009).............................................................. 11

Hall v. Washington,

106 F.3d 742 (7th Cir.1997) ................................................................................. 13

Harrison v. Deane,

426 F. App’x 175 (4th Cir. 2011) ..................................................................... 10, 11

Hess v. Indiana,

414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) ............................................. 19

Hodgkins v. Peterson,

355 F.3d 1048 (7th Cir. 2004) .............................................................................. 16

Hormel v. Helvering,

312 U.S. 552 (1941) .............................................................................................. 15

Lawrence v. 48th Dist. Court,

560 F.3d 475 (6th Cir. 2009) ................................................................................ 13

Lewis v. City of New Orleans,

408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972) ........................................... 19

Mackinney v. Nielsen,

69 F.3d 1002 (9th Cir. 1995) ................................................................................ 20

Madison v. McCullough,

7 U.S. (4 Wheat.) 316 (1819) ................................................................................ 12

Massey v. Wharton,

477 F. App’x 256 (5th Cir. 2012) .......................................................................... 20

McDermott v. Royal,

613 F.3d 1192 (8th Cir. 2010) .............................................................................. 13

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) ................................................................................ 16

viii

TABLE OF AUTHORITIES—Continued

Page

Mullenix v. Luna,

136 S.Ct. 305 (2015) ............................................................................................. 23

Norwell v. City of Cincinnati,

414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) ............................................... 18

Oregon v. Hass,

420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) ........................................... 13

Ornelas v. United States,

517 U.S. 690 (1996) .............................................................................................. 17

Payne v. Pauley,

337 F.3d 767 (7th Cir.2003) ................................................................................. 13

Pearlman v. City of Fort Worth,

400 Fed.Appx. 956 (5th Cir. 2010) ....................................................................... 22

Quong Wing v. Kirkendall,

223 U.S. 59 (1912) ................................................................................................ 15

Reichle v. Howards,

566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ................................... 4, 23

Schenck v. United States,

249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919) ................................................... 10

Sherman v. United States,

356 U.S. 369 (1958) .............................................................................................. 15

State v. Occhino,

572 N.W.2d 316 (Minn. Ct. App. 1997 ................................................................. 11

State v. Tomlin,

622 N.W.2d 546 (Minn. 2001) .............................................................................. 11

Terminiello v. City of Chicago,

337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ................................................... 19

Trevino v. State,

512 S.W.3d 587 (Tex. App.—El Paso 2017) ......................................................... 22

United States v. Block,

590 F.2d 535 (4th Cir. 1978) ................................................................................ 11

United States v. Lanier,

520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) ....................................... 18

United States v. Levine,

80 F.3d 129 (5th Cir. 1996) .................................................................................. 17

ix

TABLE OF AUTHORITIES—Continued

Page

United States v. Moncivais,

401 F.3d 751 (6th Cir. 2005) ................................................................................ 17

Voss v. Goode,

954 F.3d 234 (5th Cir. 2020) ...................................................................... 1, 3, 8, 9

Westfall v. Luna,

903 F.3d 534 (5th Cir. 2018) ................................................................................ 21

Williams v. Sirmons,

307 F. App’x 354 (11th Cir. 2009) ........................................................................ 16

Wilson v. Kittoe,

337 F.3d 392 (4th Cir.2003) ........................................................................... 13, 18

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ...................................................................................................... 2

U.S. Const. amend. IV ............................................................................................... 2, 8

U.S. Const. Art. VI, cl. 2 .............................................................................................. 12

STATUTES

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

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

Tex. Pen. Code Ann. § 38.15(a)(1) ........................................................................... 8, 12

Tex. Pen. Code Ann. § 38.15(d)(1) ....................................................................... passim

JUDICIAL RULES

Sup. Ct. R. 14(1)(a) ...................................................................................................... 14

OTHER AUTHORITIES

Andrew Bruce,

Bruce, The American Judge, 10-11 (1924) .......................................................... 15

Ryan Sullivan,

Revitalizing Fourth Amendment Protections: University of Nebraska College

of Law, Faculty Publications, (2020) available at

https://digitalcommons.unl.edu/lawfacpub/215..................................................... 4

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Monica Voss asks that 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, Voss v.

Goode, 954 F.3d 234 (5th Cir. 2020), is attached to this petition at App.1a. The

magistrate’s memorandum and recommendation order to the United States District

Court for the Southern District of Texas, Voss v. Goode, No. CV H-17-1408, 2019

WL 722103, (S.D. Tex. Jan. 31, 2018) is attached to this petition at App.11a. The

district judge’s memorandum and order adopting, No. CV H-17-1408, 2019 WL

699289 (S.D. Tex. Feb. 20, 2019) is attached at App.10a.

JURISDICTION

The Court of Appeals entered judgment on March 24, 2020. The Court extended

the time to file a petition for writ of certiorari to 150 days. This Court’s jurisdiction

is invoked pursuant to 28 U.S.C. § 1254(1). The Petitioner has asserted below and is

asserting in this petition the deprivation of rights secured by the United States

Constitution.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

• U.S. Const. amend. I

U.S. Const., amend. I provides, under Houston v. Hill, constitutional protection

for “a significant amount of verbal criticism and challenge directed at police

officers.”

• 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 any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

• Tex. Pen. Code Ann. § 38.15(d)(1)

Tex. Penal Code Ann. § 38.15(d)(1) provides, “It is a defense to prosecution [for

interference with public duties] that the interruption, disruption, impediment,

or interference alleged consisted of speech only.”

INTRODUCTION

In Texas, no one can be arrested for interfering with public duties for speech

alone, even if that speech caused a physical disruption. Nevertheless, The United

States Court of Appeals for the Fifth Circuit extended qualified immunity to an

officer who arrested a woman for conduct consisting of speech alone. During a

3

welfare check the Respondent, Gregory Goode, and Petitioner Monica Voss

disagreed over whether Voss’s child, who an anonymous caller reported as suicidal,

should be assessed at the scene or taken by her mother to an emergency room.

The Fifth Circuit holding merits this Court’s review because it raises purely

legal questions that 1) this Court has not addressed; 2) this Court has clearly

addressed in a contrary manner; and 3) implicate discord among the circuits.

First, the appellate court held that the action of Voss’s minor child transformed

Voss’s verbal command from protected speech to physical interference with public

duties. Voss v. Goode, 954 F.3d 234, 239 (5th Cir. 2020). After an interview in which

Voss’s daughter denied suicidal ideation three times (Voss volunteered to let

Respondent speak to the child alone), Respondent told Voss that her daughter was

suicidal and needed to be examined by a professional. Voss told Respondent a

psychiatrist had recommended two different hospitals and told her daughter to get

in her car so that she could drive her to an emergency room. The child got in Voss’s

car. The appellate court found this last fact dispositive, even though Voss remained

at the scene when instructed not to leave and complied with all Respondent’s

commands. See Id. Finding no controlling authority holding that the actions of a

minor may be imputed to a parent to satisfy reasonable probable cause to arrest the

latter, Voss submits this novel question for certification.

Second, and most importantly, the appellate court’s holding directly conflicts

with City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502 (1987) . In Hill, this

court clearly established the right to object to the manner in which an officer carries

4

out his lawful duties. Id. Since then, the Texas statute Voss is alleged to have

violated was amended to add an affirmative defense for speech. Tex. Penal Code

Ann. § 38.15(d)(1). Moreover, state and federal courts in virtually every circuit have

applied Hill so consistently, that Respondent was fairly warned that no reasonable

officer could have found probable cause to arrest for interference. See Reichle v.

Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012).

Finally, there is discord among the circuits over how the existence of an

affirmative defense impacts the objective standard for probable cause analysis in

qualified immunity cases. Here the affirmative defense is a state statutory bar to

prosecution for speech alone. A modest plurality of courts held that conclusive

existence of an affirmative defense should be evaluated as part of the totality of

circumstances, while other courts have dismissed affirmative defenses as irrelevant

in qualified immunity cases.1 This case represents an ideal opportunity to resolve

this question: the appellate court acknowledged the conclusive existence of the

affirmative defense of speech alone, yet still found reasonable probable cause for

Voss’s arrest, making this a purely legal question.

Should this Court decline to answer these questions, this case is suitable for

summary reversal in the alternative. Courts need not look beyond the unambiguous

text of the statute at issue to affirm Voss’s clearly established right in these

1 Ryan Sullivan, Revitalizing Fourth Amendment Protections: A True Totality of the Circumstances

Test in § 1983 Probable Cause Determinations, University of Nebraska College of Law, Faculty

Publications, (2020) available at https://digitalcommons.unl.edu/lawfacpub/215.

5

circumstances. State law could not be more clear that speech alone, even if it causes

“interruption, disruption, impediment, or interference” is not an offense. Tex. Penal

Code Ann. § 38.15(d)(1). The statute itself gives fair warning to any reasonable

officer that the unconstitutionality of arresting Voss under these circumstances was

beyond debate at the time of the arrest. See Ashcroft v. al–Kidd, 563 U.S. 731, 741,

131 S.Ct. 2074 (2011). The rare unanimity of authority holding that the rule

announced in Hill is clearly established weighs decidedly in Voss’s favor. Allowing

qualified immunity to lie here would leave undisturbed a dangerous precedent: that

a mother confronted by police in the middle of the night at her home about the

welfare of her child risks arrest for expressing her opinion about how to handle the

crisis. This outcome could chill similar forms of important parental speech that is

not only protected, but indeed reflects perhaps one of the most basic of all human

instincts.

STATEMENT OF THE CASE

Gregory Goode (Goode or Respondent) arrested Monica Voss (Voss or Petitioner)

for failing to identify herself during a welfare check initiated by a call alleging her

daughter, a minor child, might be suicidal. After losing a motion to dismiss, Goode

later argued he had probable cause to arrest Voss for interference. When

Respondent arrived at the home after 12:00 a.m. to conduct a welfare check, Voss

said she was unaware of any suicide risk and roused her daughter K.V. to come to

6

the door. K.V. denied being depressed and contemplating suicide. Being a retired

sex crimes detective Voss knew that proper procedure to conduct an interview is

without the parent present as it might discourage candor, so she invited

Respondent to question K.V. alone, which he did for more than 20 minutes. Upset

that Respondent had asked Voss whether K.V. was her natural or adopted daughter

(K.V. is adopted) in front of the child, Voss nevertheless calmly waited inside the

house while Respondent conducted the interview outside.

Remaining calm throughout Respondent’s 18 minute taped interview, K.V.

thrice denied suicidal ideation: when asked if she wanted to harm herself, the

teenager said no (G6L65079MP3 at 4:02, https://youtu.be/ZDiuB-rEXOA); when

asked if there were any weapons in the house she said, “Under the bed but we’re not

going to kill anybody,” (Id. at 5:08); finally, when asked if she was in crisis, she

stated explicitly that she did not want to harm herself, nor anyone else, she just

wanted to “get out of the situation.” (Id. at 10:25-11:03).

When Voss emerged from the house, Respondent told her he believed K.V.

needed emergency mental health services. He claimed K.V. disclosed suicidal

ideation and parental abuse. Explaining to Respondent that K.V.’s regular

psychiatrist had recommended two nearby hospitals, in the event such a mental

health crisis arose, Voss told K.V. to get in Voss’s car so that she could drive her to

an emergency room at one of the family psychiatrist’s referred hospitals.

Respondent objected to the mother and daughter leaving the scene, alleging “that

would be interference.” G6L65082MP3 at 0:17-0:50, https://youtu.be/VIOke5OjvHs.

7

At that point, Voss told Respondent that if her daughter were in crisis, the officer

should either let her take K.V. to a recommended emergency room, or he should

take K.V. into protective custody. Id. at 0:48-1:08. Respondent determined K.V.

should wait in his squad car until he could contact a local crisis center to send a

mental health professional to the scene to assess the child’s mental state. He told

Voss that K.V.—a child he alleged he believed was suicidal—should spend the night

at a friend’s house, rather than be rushed to a hospital by her mother.

Despite verbally disagreeing with Respondent, Voss complied with his orders

and did not leave the scene with K.V., nor did she prevent or attempt to prevent

Respondent from taking K.V. into custody, which he did. After K.V. was in custody,

Respondent asked Voss to show her identification, which she was not carrying

because she was at home. Respondent asked Voss to retrieve her identification from

inside her house. Voss, who had already identified herself and was not under arrest,

asked for officers’ names and badge numbers. Only then did appellee arrest Voss for

failure to identify to a police officer. He handcuffed Voss and another officer placed

her in the back of a patrol car. At one point, Voss asked Respondent to call his

supervisor, which he did. Sergeant Jerome Ellis soon arrived and told Voss that the

events leading to her arrest had been “a big misunderstanding that had gotten out

of hand.” Shortly thereafter, a mental health professional arrived, conducted an

evaluation of K.V., and recommended officers release the child into her mother’s

custody. The state pressed no charges against Voss.

8

On May 6, 2017, Voss filed a complaint in the Southern District of Texas

alleging violations of the Fourth and Fourteenth Amendments to the U.S.

Constitution against Respondent and imputed liability against Fort Bend County.

All claims against the County and the Fourteenth Amendment claim against

Respondent were dropped. Voss v. Goode, No. CV H-17-1408, 2018 WL 1010188,

(S.D. Tex. Jan. 31, 2018), report and recommendation adopted, No. CV H-17-1408,

2018 WL 1009281 (S.D. Tex. Feb. 20, 2018).

The district court denied a motion to dismiss Voss’ Fourth Amendment unlawful

arrest claim against Respondent.

On April 17, 2018, Respondent/Defendant filed a motion for summary judgment.

For the first time, he changed the basis of Voss’s detention, and affirmative defense

of qualified immunity, from failure to identify to interference with official duties, a

Class B misdemeanor under Tex. Penal Code Ann. § 38.15(a)(1). On February 20,

2019, the district court granted the motion and entered judgment against Voss. Her

appeal was denied by the United States Court of Appeals for the Fifth Circuit on

March 24, 2020. Voss v. Goode, 954 F.3d 234 (5th Cir. 2020).

REASONS FOR GRANTING THE WRIT OF CERTIORARI

I.

THIS CASE IMPLICATES CRUCIAL AND NOVEL QUESTIONS ABOUT THE LAWFULNESS

OF FOURTH AMENDMENT SEIZURES.

In granting qualified immunity, the appellate court broke with settled law,

including its own prior holdings, to find Respondent was immune from suit because

9

speech alone rose to the level of physical interference. The issues raised by the Voss

holding present important and novel questions of pure law that require this Court’s

authority to resolve.

A. This Court Should Clarify Whether a Third Party’s Alleged Failure to

Comply with an Officer’s Command May Establish the Reasonableness of

Probable Cause to Arrest Another.

Finding no other physical action, the Fifth Circuit reasoned that, because Voss’s

daughter minded her mother’s verbal directive to get in Voss’s car, the words “get in

the car,” ceased to be protected expression and became a physical act. Voss v.

Goode, 954 F.3d 234, 239 (5th Cir. 2020). But this is not the law. The First

Amendment “protects a significant amount of verbal criticism and challenge

directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502

(1987). A court could no more allow qualified immunity here than it would if an

officer claimed reasonable probable cause for resisting arrest when someone other

than the suspect ran away.

Rather than apply controlling authority, the appellate court justified its

unprecedented holding by citing dicta from a criminal case in state court. Voss, 954

F.3d 234, 24 (holding “Barnes . . . gave [Respondent] good reason to believe that

probable cause existed to arrest Voss.”) (citing Barnes v. State, 206 S.W.3d 601,

605-606 (Tex. Crim. App. 2006). In Barnes, the Texas Court of Criminal Appeals

held that a woman’s shout to her son to “run” as police attempted to detain them

both did not fall within the penal code’s speech-only exception because it was a

10

“command to act.” 206 S.W.3d at 605-606 (citing Schenck v. United States, 249 U.S.

47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919)).2

Even if Barnes were accepted as persuasive authority, the facts of that case, in

which the mother also refused to put her car in park during a traffic stop; continued

rolling forward when officer lawfully commanded her to stop; refused to roll her

window down; refused to sign a speeding ticket (at one point she pretended not to

hear the officer and started reading a book); and refused to keep her hands visible

when the officer feared she was rummaging for a weapon, are not even arguably

analogous to this case. See Barnes, 206 S.W.3d 601, 602-608.

More importantly, at the point when Voss told K.V. to get in the car, there was

no command—let alone a lawful one—for her to disobey. Respondent had

untruthfully told Voss her young daughter was suicidal. Voss then told Respondent

that she wanted to take her child to an emergency room and told K.V. to get in the

car. Respondent objected, telling Voss not to leave the scene. She obeyed. Whereas

Barnes told her son to run in response to the officers’ attempt to take the child into

custody, Goode responded to Voss’ attempt to take her daughter from the scene by

placing K.V. in custody. Not only did Voss not interfere, surrendering K.V. to state

2 The relevant exception to Hill falls not under Schenck, but under Chaplinsky v. New Hampshire,

315 U.S. 568, 572, 62 S.Ct. 766 (1942) where this Court held that states may constitutionally prohibit

fighting words. For example, the Fourth Circuit has tested the bounds of this constitutional limit,

finding probable cause to arrest for harassment where arrestee cursed at an officer, because other

factors indicated the curse was “designed by [its] utterance . . . to incite an immediate breach of the

peace.” Harrison v. Deane, 426 F. App’x 175, 178 (4th Cir. 2011). Respondent made no such claim here.

11

custody was her idea. In fact, Respondent discussed the possibility of arresting Voss

for child abandonment with another officer. G6065082MP3 at 4:44 to 5:05,

https://youtu.be/VIOke5OjvHs. How can Voss have interfered with placing K.V. in

custody, when Respondent admits he told Voss they were not taking the child?

Cases in which courts have found speech so disruptive as to rise to the level of

physical interference are rare exceptions such as fighting words under Chaplinsky,

315 U.S. 568, 572 (See Harrison v. Deane, 426 F. App’x 175, 178), lying to police

about a suspect’s whereabouts (See Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir.

1989); but see State v. Tomlin, 622 N.W.2d 546, 549 (Minn. 2001)), speech that was

intended to warn a hiding suspect of officers’ presence (see Hall v. State, 283 S.W.3d

137, 145–46 (Tex. App.–Austin 2009)) or speech that rendered lawful exercise of

public duties physically impossible (State v. Occhino, N.W.2d 316, 318 (Minn. Ct.

App. 1997) (upholding prosecution of a man who entered a police station where only

one officer was working and loudly screamed and paced the floor so that officer was

unable to answer an emergency call)).

Likewise, a child’s minority should not supply the basis for infringing upon the

parents’ Fourth Amendment right. The action of another can only serve to forfeit

one’s own constitutional rights in cases, for example, where there is overlapping

property interest. Cf. United States v. Block, 590 F.2d 535, 542 (4th Cir. 1978)

(finding a mother had no authority to consent to search of footlocker belonging to

her son). The fact that Voss would, by the appellate court’s reasoning, be decided

differently had K.V. ignored her mother’s directive is an irrational result.

12

Because no controlling authority supports the appellate court’s theory on

interference by proxy, Voss respectfully seeks certification that this Court might

nullify the novel and dangerous holding below.

B. States May Expand but Not Limit Constitutional Protections Beyond

Federal Law.

The holding in Voss represents another dangerous precedent, because it directly

conflicts with the central holding in Hill that protects the right to verbally disagree

with police and yet remain free from arrest. Hill, 482 U.S. 451, 455, 107 S.Ct. 2502,

(“The freedom of individuals verbally to oppose or challenge police action without

thereby risking arrest is one of the principal characteristics by which we distinguish

a free nation from a police state.”). Indeed, the statutory defense for speech-only

conduct was added to § 38.15 to bring the Texas Penal Code in line with

constitutional law as articulated in Hill.

That the lower courts misapplied the Texas statute is not this Court’s problem;

that they interpreted a state statute to reflect a lower constitutional standard than

federal law is.

State officials must not violate the minimum standards of federal law. U.S.

Const. art. VI, cl. 2. This Court issued its straightforward interpretation of the

Supremacy Clause in Madison v. McCullough, 7 U.S. (4 Wheat.) 316, 405–06 (1819)

and reserved for itself a central place in the Clause’s operation as the primary

interpreter of the Constitution. See Marbury v. Madison. 5 U.S. (1 Cranch) 137, 177,

2 L.Ed. 60 (1803). In Cooper v. Aaron, 358 U.S. 1, 17 (1958), this Court emphatically

asserted state officials’ obligation to follow the Constitution as interpreted in the

13

Court’s definitive rulings. While state officials are free to interpret their own law,

they “may not impose such greater restrictions as a matter of federal constitutional

law when this Court specifically refrains from imposing them.” Arkansas v.

Sullivan, 532 U.S. 769, 772 (2001) (quoting Oregon v. Hass, 420 U.S. 714, 95 S.Ct.

1215, 43 L.Ed.2d 570 (1975)). “Some decisions will be at such tension with

governing . . . Supreme Court precedents, or so inadequately supported by the

record, or so arbitrary, that a writ must issue.” Hall v. Washington, 106 F.3d 742,

749 (7th Cir. 1997).

Most states, and some cities and counties, provide for criminal prosecution of

individuals who interfere with public duties. Across jurisdictions, relevant

precedent “previously rendered unmistakable the constitutional fallibility of

obstruction statutes” that were construed to penalize speech alone. See Payne v.

Pauley, 337 F.3d 767, 776 (7th Cir. 2003) (noting that Illinois courts had interpreted

a state law against “resist[ing]” or “obstruct[ing]” to cover only physical acts);

Wilson v. Kittoe, 337 F.3d 392, 398–99, n. 3 (4th Cir. 2003); McDermott v. Royal,

613 F.3d 1192, 1194 (8th Cir. 2010); Lawrence v. 48th Dist. Court, 560 F.3d 475,

482 (6th Cir. 2009) (holding Michigan statute was not overbroad because the words

“resist[ing],” “interfer[ing],” and “hinder[ing],” suggest physical interference not

speech); Fair v. City of Galveston, 915 F.Supp. 873, 879–80 (S.D. Tex.), aff’d, 100

F.3d 953 (5th Cir. 1996) (distinguishing Galveston city ordinance from the one struck

down in Hill to reject an overbreadth challenge because the former required actual

hindrance of official duties).

14

Virtually every circuit court has ruled, in accordance with Hill, that statutes

such as the one Respondent used to justify Voss’s arrest may not cover conduct

consisting of mere speech. The appellate court’s finding of qualified immunity here,

where the court found no physical act constituting interference, is contrary to

clearly established federal law. This Court set the floor for speech that is not

protected from arrest for interference in Chaplinsky and Hill. Sustaining qualified

immunity here would allow state actors to fall short of this Court’s clear mandates

and to exceed its tolerance for infringing on fundamental rights, without

consequence.

C. The Appellate Court Raised the Dispositive Issue Sua Sponte.3

Respondent never argued that Voss’s command to K.V. to get in the car

constituted physical interference and Voss had no opportunity to challenge the legal

theory that doomed her case.

In general, appellate courts will not consider issues not urged by the parties.

See, e.g., Rules of the Supreme Court of the United States, Rule 14(1)(a) (“Only the

questions set out in the petition, or fairly included therein, will be considered by the

Court.”).

Here, the Fifth Circuit’s ruling turned on facts not argued by the parties. See

Voss, 54 F.3d 234, 239-240 (acknowledging it asked at oral argument whether K.V.

got in the car and that this was the decisive factor in its ruling). Respondent did not

assert this fact and Voss did not have the opportunity to brief the appellate court on

3 App.1a.

15

this issue. This was a significant injustice, given the court held that fact alone

transformed Voss’ command from protected speech to physical interference. Id.

Asserting a different legal theory, Respondent argued instead that Voss physically

“put” K.V. in her car. Appellee’s Principal Brief at 11. (App.35a).

Notwithstanding exceptional cases, the courts exercise restraint from

considering extraneous issues on a deeply held principle of the adversary system

that the litigants have the right to control the litigation. Quong Wing v. Kirkendall,

223 U.S. 59, 63, 64 (1912) (in refusing to raise an issue sua sponte, Justice Holmes

reasoned for the majority, “It rests with counsel to take the proper steps . . . we do

not feel called upon to institute inquiries on our own account.”). In this way, judges

see themselves as “umpires” rather than advocates. Andrew Bruce, Bruce, The

American Judge, 10-11 (1924).

Another rationale in exercising judicial restraint, is to avoid injustice to the

losing party where, as here, they would be denied the opportunity to rebut the

theory adopted by the court. See, Hormel v. Helvering, 312 U.S. 552, 556 (1941) (in

the context of issues not raised at trial, “it is equally essential in order that litigants

may not be surprised on appeal by final decision there of issues upon which they

have had no opportunity to introduce evidence.”). The solution here, as Justice

Frankfurter urged in the context of a criminal justice issue not argued by counsel,

“is not to perpetuate a bad rule but to set the case down for re-argument with a

view to reexamining that rule.” Sherman v. United States, 356 U.S. 369, 379 n.2

(1958).

16

II. THIS COURT SHOULD RESOLVE THE CIRCUIT SPLIT OVER WHETHER THE EXISTENCE

OF AN AFFIRMATIVE DEFENSE IS A BAR TO QUALIFIED IMMUNITY.

Texas Penal Code § 38.15(d)(1) provides an affirmative defense for conduct that

consists of speech alone. See also Carney v. State, 31 S.W.3d 392, 398 (Tex. App.

2000) (holding speech is a statutory defense to the charge even if the end result is

“stalling”). In some circuits, the existence of an affirmative defense should alert a

reasonable officer that there is not probable cause to sustain an arrest. In each of

the Second, Fifth, Sixth, Seventh, and Eleventh Circuits, at least one federal court

has ruled that an affirmative defense to a crime is relevant to probable cause

analysis. See Williams v. Sirmons, 307 F. App’x 354, 358 (11th Cir. 2009); Hodgkins

ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004) (“A police officer

may not ignore conclusively established evidence of the existence of an affirmative

defense. . . . ”; Jocks, 316 F.3d at 135; Fridley v. Horrighs, 291 F.3d 867, 874 (6th

Cir. 2002); City of Galveston v. Thomas, 800 F.Supp.2d at 826, 836 (S.D. Tex. 2011).

Meanwhile, other courts have held that facts establishing an affirmative defense

are irrelevant to the qualified immunity inquiry. See, e.g., Holman v. City of York,

564 F.3d 225, 229 (3d Cir. 2009).

Lack of uniformity among the circuits is particularly vexing in the context of a

Fourth Amendment qualified immunity suit, because such splits functionally

extend qualified immunity. Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011)

(en banc) (noting, “[w]here no controlling authority specifically prohibits a defendant’s

conduct and when the federal circuit courts are split on the issue, the law cannot be

said to be clearly established.”).

17

By hinging its decision on the single fact of K.V. getting into Voss’s car, the

appellate court broke with its own probable cause standard that “the totality of

facts and circumstances within a police officer’s knowledge at the moment of arrest

are sufficient for a reasonable person to conclude that the suspect had committed or

was committing an offense.” United States v. Levine, 80 F.3d 129, 132 (5th Cir.

1996); accord United States v. Moncivais, 401 F.3d 751, 756 (6th Cir. 2005) (citing

Ornelas v. United States, 517 U.S. 690, 696 (1996)).

In fact, this Court, in District of Columbia v. Wesby, 138 S.Ct. 577, 583–85

(2018), admonished a lower court for evaluating facts in this manner, finding the

totality-of-circumstances test “precludes this sort of divide-and-conquer analysis.”

Among the undisputed facts that should have been credited to Voss were that

she opened the door, identified herself and answered all of Respondent’s questions;

she acquiesced in the welfare check by calling K.V. to the door and volunteered to

leave Respondent alone with her child for questioning; when informed of the need

for psychiatric evaluation, Voss volunteered to take K.V. to a hospital, when

admonished against leaving the scene, Voss remained and told Respondent to take

the child into custody.

Voss respectfully asks this Court to resolve the split by clarifying that the

existence of an affirmative defense, or at least, as here, one set forth in the statute

itself, is a factor in evaluating the totality-of-circumstances test for reasonable

probable cause analysis.

18

III. IN THE ALTERNATIVE, THIS COURT SHOULD SUMMARILY REVERSE TO DENY

QUALIFIED IMMUNITY.

If this Court decides not to grant review to resolve the questions presented, it

should nevertheless summarily reverse and deny qualified immunity because

Respondent violated clearly established law. See United States v. Lanier, 520 U.S.

259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).

Respondent argued, and the Fifth Circuit held, that he had arguable probable

cause to arrest Voss for interference. Indeed, a reasonable but mistaken belief in the

existence of probable cause is enough to sustain a qualified immunity defense.

Wesby, 138 S.Ct. 577, 582. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 641,

107 S.Ct. 3034 (1987). However, the unanimity among states to constrain criminal

statues like the one at issue here to physical conduct, and existing precedent, are

more than enough to establish that Respondent was fairly warned of the

unconstitutionality of arresting Voss. See Wilson v. Kittoe, 337 F.3d 392, 404 (4th

Cir. 2003).

A. This Court’s Precedent Clearly Established Voss’s Right to Be Free from

Arrest.

This Court made clear that the First Amendment does not permit states to

“provide the police with unfettered discretion to arrest individuals for words or

conduct that annoy or offend them.” Hill, 482 US at 465, 107 S.Ct. at 2511–12; see

also Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170

(1973) (overturning conviction under disorderly conduct statute where “petitioner

was arrested and convicted merely because he verbally and negatively protested

19

Officer Johnson’s treatment of him”). Police officers are expected to endure speech

that is sometimes challenging or provocative without retaliation. 482 U.S. at 461,

107 S.Ct. at 2509 (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct.

894, 895–96, 93 L.Ed. 1131 (1949)); Lewis v. City of New Orleans, 408 U.S. 913,

913, 92 S.Ct. 2499, 2499, 33 L.Ed.2d 321 (1972) (holding a properly trained police

officer should not retaliate even when subjected to fighting words); Hess v. Indiana,

414 U.S. 105, 107–08, 94 S.Ct. 326, 328–29, 38 L.Ed.2d 303 (1973) (per curiam)

(holding that the statement, “We’ll take the . . . street later [or again],” was not

incitement).

This Court’s holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32

L.Ed.2d 584 (1972) is easily distinguishable from the facts here. Whereas Colten

was repeatedly interrupting an officer attempting to issue his friend a traffic ticket

and ignored commands to leave the scene, Voss did not disobey any command, let

alone repeated commands. Moreover, Colten had no First Amendment right to

observe the traffic stop, whereas Voss had a cognizable interest in advocating for

what she thought was the preferred emergency solution to her daughter’s mental

health issue.

B. Circuit Court Precedent, Including the Fifth Circuit, Clearly Established

Voss’s Right to Be Free from Arrest.

In addition to the above discussed case law, which consistently upheld narrow

construction of state interference and obstruction statutes to apply only to physical

conduct, a number of circuit cases support Voss’s argument that Respondent

violated a clearly established right.

20

In 2010, the Eighth Circuit denied qualified immunity in a case where, as here,

the Defendant officer conceded the absence of probable cause, but asserted arguable

probable cause to arrest for interference where the arrestee did not physically

interfere, threaten to physically interfere, or threaten violence. Copeland v. Locke,

613 F.3d 875, 880-881 (8th Cir. 2010) (finding “[n]o reasonable police officer could

believe that he had arguable probable cause to arrest an individual for such

protected expressive conduct”). Numerous other circuits reflect the same reasoning.

See, e.g., Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995) (holding the

right to argue with officer was clearly established under Hill and did not supply

probable cause to arrest for obstruction).

In upholding qualified immunity, the appellate court bucked its own precedent

in similar cases. The controlling case in the Fifth Circuit is Freeman v. Gore, 483

F.3d 404 (5th Cir. 2007). Freeman held that where an arrestee’s “screaming and

yelling” disrupted their investigation, “deputies did not have probable cause to

arrest Freeman because her conduct consisted exclusively of speech.” Id. at 413-414;

See also Massey v. Wharton, 477 F. App’x 256 (5th Cir. 2012) (upholding district

court denial of qualified immunity where mother told officers to leave her son alone)

(citing Enlow v. Tishomingo Cty., Miss., 962 F.2d 501, 509 (5th Cir. 1992) (holding

asking questions about police conduct failed to rise above “inconvenience, annoyance,

or unrest,”).

The appellate court distinguished Freeman, and its other speech exception

cases, on the grounds that the cases where qualified immunity was denied involved

21

failure to comply with unlawful police commands. Setting aside (as discussed above)

the fact that Voss did not refuse to comply with any command, this reasoning is

flawed for three reasons. First, the lawfulness of the command is not the standard

for reviewing the reasonableness of an officers’ arrest. The standard is whether any

reasonable officer would think he had probable cause. Anderson v. Creighton, 483

U.S. 635, 640, 641, 107 S.Ct. 3034 (1987).

Second, whether Respondent had the authority to take K.V. into protective

custody is a factual finding that was never established by Respondent, nor argued

by Voss because the appellate court made that determination sua sponte.

Respondent argued that he exercised lawful duty to conduct a welfare check and

that Voss interfered with the investigation, even though he had already completed

the interview with K.V. Appellee’s Br. at 7. But the court held Voss interfered with

Respondent’s taking K.V. into custody. It is doubtful that the appellate court

intended to assert that the state may remove a child from her home without cause.

The fact that K.V. repeatedly denied being suicidal should have at least raised a

question of fact regarding the lawfulness of taking her into custody. Cf. Westfall v.

Luna, 903 F.3d 534 (5th Cir. 2018) (finding question of fact over whether officers

lawfully exercised authority preclude qualified immunity).

Third, all of the Fifth Circuit cases the appellate court cited to distinguish Voss

are inapposite here, because they all involve physical acts that placed the § 1983

claimants’ conduct outside the speech exception. See Haggerty v. Tex. S. Univ., 391

F.3d 653, 657 (5th Cir. 2004) (officers reasonably feared arrestee’s refusal to stand

22

back would agitate a “dangerous” and “explosive” situation involving eight attackers

and a gathering crowd); Pearlman v. City of Fort Worth, 400 Fed. App’x. 956 (5th

Cir. 2010), (probable cause existed where arrestee got into physical altercation with

officer conducting a welfare check); Childers v. Iglesias, 848 F.3d 412, 414 (5th Cir.

2017) (denying qualified immunity where the arrestee physically blocked officers’

entry to the scene with his truck).

Circuit law, including the appellate court’s own precedent, clearly established

Voss’s right to challenge Respondent without risking arrest.

C. Texas Law Clearly Established an Exception to Criminal Interference for

Conduct Consisting of Mere Speech.

Again, the speech exception to interference is explicitly codified in the criminal

code. Tex. Penal Code Ann. § 38.15(d)(1). In addition, a number of state criminal

cases have unambiguously announced that speech alone is insufficient to establish

probable cause for an arrest. Carney v. State, 31 S.W.3d 392, 398 (Tex. App. 2000)

(finding no probable cause where arrestee stood in front of door because he was not

physically blocking entry) Cf. Trevino v. State, 512 S.W.3d 587, 590 (Tex. App.—El

Paso 2017) (finding probable cause for interference when arrestee physically

blocked a doorway and pushed an officer). As discussed at length above, even the

case the appellate court cited as establishing the reasonableness of Respondents’

action is clearly distinguishable because of the number of physical acts and refusals

to obey commands that were not present here. See Barnes, 206 S.W.3d 601, 602-608.

The long line of precedent discussed, including controlling authority from this

Court, circuit courts, and state courts is more than sufficient to place the

23

unconstitutionality of Respondent’s conduct “beyond debate.” See White v. Pauly,

____ U.S. ____, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017). Because no reasonable

officer would have thought he had probable cause to arrest Voss for telling her child

to get in her car, Voss respectfully asks this court summarily reverse. See Mullenix

v. Luna, 136 S.Ct. 305, 308 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664,

132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)).

CONCLUSION

For the foregoing reasons, Petitioner’s Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

/s/ Randall L. Kallinen

RANDALL L. KALLINEN

KALLINEN LAW PLLC

511 BROADWAY STREET

HOUSTON, TX 77012

(713) 320-3785

ATTORNEYKALLINEN@AOL.COM

COUNSEL FOR PETITIONER

JULY 8, 2020