Petition for Writ of Certiorari — Teresa M. Graham, Petitioner v. Shannon L. Barnette, et al.

Supreme Court briefDec 28, 2020

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No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2020

TERESA M. GRAHAM,

Petitioner,

SERGEANT SHANNON L. BARNETTE,

OFFICER AMANDA SANCHEZ, OFFICER MOHAMED NOOR,

AND CITY OF MINNEAPOLIS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JORDAN S. KUSHNER

Counsel of Record

Attorney for Petitioner

431 South 7th Street

Suite 2446

Minneapolis, MN 55415

(612) 288-0545

QUESTIONS PRESENTED FOR REVIEW

1. WHETHER THE “COMMUNITY CARETAKING” EXCEPTION TO THE

FOURTH AMENDMENT’S WARRANT REQUIREMENT EXTENDS TO THE HOME?

2. WHETHER THE “COMMUNITY CARETAKING” EXCEPTION TO THE

FOURTH AMENDMENT’S WARRANT REQUIREMENT CAN BE INVOKED TO

JUSTIFY A WARRANTLESS ENTRY INTO A HOME WHERE THERE ARE NO

REASONABLE GROUNDS TO BELIEVE AN EMERGENCY EXISTS?

3. WHETHER THE DOCTRINE OF QUALIFIED IMMUNITY SHOULD BE

MODIFIED OR OVERRULED?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Substantive Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR ALLOWANCE OF THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

THE COMMUNITY CARETAKING FUNCTION OF THE POLICE, IN

THE ABSENCE OF AN IMMEDIATE EMERGENCY, CANNOT

JUSTIFY THE WARRANTLESS SEARCH OF A PRIVATE HOME.. . . 9

The Community Caretaking Exception is Inconsistent with the

Fourth Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

There is a Circuit Split that Must be Resolved.. . . . . . . . . . . . . . . . 13

II.

THE DOCTRINE OF QUALIFIED IMMUNITY SHOULD BE

ELIMINATED OR MODIFIED... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX

Opinion of Eighth Circuit Court of Appeals, filed August 17, 2020

Order denying petition for rehearing en banc or rehearing

25A

District Court Order - partial summary judgment, December 14, 2018

26A

District Court Order - summary judgment on remaining count, July 3, 2019

56A

iii

TABLE OF AUTHORITIES

CASES

Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943 (2006).. . . . . . . . . . . . . . . . 12

Burke v. Sullivan, 677 F.3d 367 (8th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cady v. Dombrowski, 413 U.S. 433 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Caniglia v. Strom, 953 F.3d 112 (1st Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Caniglia v. Strom, No. 20-157 (cert. granted Nov. 20, 2020). . . . . . . . . . . . . . . . . . . . . . . 8

Chambers v. Maroney, 399 U.S. 42 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Crawford-El v. Britton, 523 U.S. 574 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Georgia v. Randolph, 547 U.S. 103 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Gooden v. Howard Cty., 954 F.2d 960 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Graham v. Barnette, 970 F.3d 1075 (8th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Groh v. Ramirez, 540 U.S. 551 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Harris v. Pirch, 677 F.3d 681 (8th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kentucky v. King, 563 U.S. 452, 131 S. Ct. 1849 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 11

Kirk v. Louisiana, 536 U.S. 635 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kisela v. Hughes, 138 S.Ct. 1148 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Kyllo v. United States, 533 U.S. 27 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Malley v. Briggs, 475 U.S. 335 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . 12

Payton v. New York, 445 U.S. 573 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

People v. Ovieda, 446 P.3d 262 (Cal. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pierson v. Ray, 386 U.S. 547 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ray v. Township of Warren, 626 F.3d 170 (3d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . 14

Samuelson v. City of New Ulm, 455 F.3d 871 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . 7

Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679(1961).. . . . . . . . . . . . . . . . . . . . 10

State v. Deneui, 775 N.W.2d 221 (S.D. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Gill, 755 N.W.2d 454 (N.D. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

State v. Gracia, 826 N.W.2d 87 (Wis. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Pinkard, 785 N.W.2d 592 (Wis. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Vargas, 63 A.3d 175 (N.J. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

State v. Wilson, 350 P.3d 800 (Ariz. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Steagald v. United States, 451 U.S. 204 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sutterfield v. City of Milwaukee, 751 F.3d 542, 554 (7th Cir. 2014). . . . . . . . . . . . . . . . 14

United States v. Bute, 43 F.3d 531 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Pichany, 687 F.2d 204 (7th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Quarterman, 877 F.3d 794 (8th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Quezada, 448 F.3d 1005 (8th Cir.2006). . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Smith, 820 F.3d 356 (8th Cir. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. York, 895 F.2d 1026 (5th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wyatt v. Cole, 504 U.S. 158 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

MISCELLANEOUS AUTHORITIES

Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797

(2018).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lynn Adelman, The Supreme Court’s Quiet Assault on Civil Rights, DISSENT (Fall

2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45 (2018)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-17

vii

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2020

TERESA M. GRAHAM,

Petitioner,

SERGEANT SHANNON L. BARNETTE,

OFFICER AMANDA SANCHEZ, OFFICER MOHAMED NOOR,

AND CITY OF MINNEAPOLIS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner Teresa M. Graham respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court of Appeals for the Eighth

Circuit, filed on August 17, 2020.

OPINION BELOW

The opinion of the Court of Appeals for the Eighth Circuit that is the subject of

this petition is reported in Graham v. Barnette, 970 F.3d 1075 (8th Cir. 2020), and is

reprinted in the appendix hereto, p. 1A-24A, infra. The Eighth Circuit denied a petition

for rehearing en banc or panel rehearing in an order filed on September 29, 2020.

(Appendix 25A).

The final judgment of the United States District Court for the District of Minnesota

and rulings (Judge Joan N. Ericksen) that are the subject of this Petition have not been

reported. The documents deemed relevant to this Petition are reprinted in the Appendix.

(Appendix 29A-67A).

JURISDICTION

The Eighth Circuit entered judgment on August 17, 2020 and denied Petitioner

Teresa M. Graham’s petition for rehearing en banc or rehearing on September 29, 2020.

This Petition is timely under Rule 13 of the Supreme Court Rules and well within the 150

day deadline currently in effect. under the Supreme Court’s March 29, 2020 Order. The

jurisdiction of this Court to review the judgments of the Eighth Circuit is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Constitution Amendment IV The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

42 U.S.C. § 1983 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 . . .

STATEMENT OF THE CASE

Substantive Facts

City of Minneapolis police officers came to the home of Petitioner Teresa M.

Graham twice on the evening of May 25, 2017 based on alleged concerns about her

mental health. (Appendix 2A-3A). Ms. Graham had made phone calls complaining to

police about their lack of response to her 911 call that morning about a suspicious person

on her property. (Id. 2A). A person claiming to be Ms. Graham's cousin also made a 911

call where he made unspecific allegations that Ms. Graham had threatened him and his

family, stated that he believed Ms. Graham had mental health issues but was not aware of

any diagnosis, that he did not consider it an emergency and did not believe Ms. Graham

would do anything, but he thought a welfare check was needed. (Id. 2A-3A).

Two hours after the cousin's call, Respondent police officers Mohamed Nour and

Amanda Sanchez visited Ms. Graham's house to inquire. (Id. 3A). Ms. Graham denied

there was any problem and objected to the officers coming to her house. (Id.) The officers

apologized and left, and noted that she appeared to be "AOK." (Id.)

Ms. Graham subsequently made a phone call to the police department complaining

about the police visit. (Id.) She also made a couple of phone calls to the neighboring

Edina police department, through Minneapolis 911, with concerns about care for her

incapacitated and vulnerable brother. (Id.) Respondent police officer Sgt. Shannon

Barnette returned Ms. Graham’s first phone call and they had a brief and uneventful

conversation. (Id.)

Based upon the phone calls, a report by the 911 call taker that Ms. Graham

sounded agitated and not making sense, and Sgt. Barnette’s claim that she has heard of

“some mental history” for Mr. Graham, Sgt. Shannon Barnette ordered officers Noor and

Sanchez to return to Ms. Graham's home to take her into custody for an emergency mental

health evaluation. (Id. 3A-4A, 29A-30A).1 There was no testimony suggesting that

Barnette had any specific knowledge indicating that Ms. Graham was a danger to herself

or others at any time, much less on the night in question.2

Respondent officers Noor, Sanchez, and Barnette returned to Ms. Graham's home

at about 9:40 p.m. (App. 4A). When they knocked on the door, Ms. Graham refused to

Although the Eighth Circuit’s opinion states that Barnette also relied on

awareness of "'some mental history” and a history of restraining orders," (Opinion at 4).

Barnette actually testified that she could not recall any details regarding Ms. Graham’s

mental health history. (Barnette Depo. 51:14-24, District Court Docket No. 103).

Barnette was not aware of any mental illness diagnosis of Ms. Graham. (Barnette Depo.

58:19-21, 115:1-6, DCD No. 103). It was only in response to leading questions by her counsel

that Barnette indicate that she had been told by about some sort of petition for a harassment

order about a year before the incident, without knowing any details. (Barnette Depo. 153:23154:8, DCD 104). Ms. Graham testified that she did not recall any interaction with

Barnette prior to May 25, 2017. (Graham Depo. 172:24-173:6, DCD 95-3).

The Minnesota Civil Commitment and Treatment Act authorizes a police officer

to place a person in custody under a health and welfare hold and transport that person to

“a licensed physician or treatment facility if the officer has reason to believe . . . that the

person is mentally ill . . . and in danger of injuring self or others if not immediately

detained.” Minn. Stat. § 253B.05 Subd. 2(a); see also Appx. 3A-4A, 29A-30A.

open the interior front door but left the storm door locked and shut. (Id.) Ms. Graham

demanded that officers leave, slammed the interior door, and stated she was fine. (Id.) She

called 911 to complain about the police at her home and refusing to leave. (Id.) Appellee

officers continued to knock. (Id.) Respondent officers repeatedly told Ms. Graham that

they would leave as soon as she just opened the door so that they could see she was okay.

(Barnette Depo. 129:21-24, 130:15-131:5, DCD No. 103; Sanchez Depo. 65:10-66:1,

DCD No. 95-6; Brian Carter Decl., Exhibits 7, 16-17 [video], DCD Nos. 95-4, 95-7, 958).

Ms. Graham eventually opened the door. (Appx. 4A). Appellee officers forced

their way into Ms. Graham's house, physically grabbed and restrained her, and

involuntarily placed her in an ambulance. (Id.) She verbally objected but did not

physically resist. (Id.) Ms. Graham was taken to a nearby hospital, and then released

within a couple of hours, after a physician evaluated her and determined she was not

"hold-able." (Id.)

Procedural History.

Ms. Graham commenced a lawsuit against Respondents in state court in June,

2017. Respondents removed the case to the United States District Court of Minnesota.

The lawsuit included claims under 42 U.S.C. § 1983 and Minnesota state law based on

the entry into Ms. Graham’s home without a warrant, the seizure of her, and the

confinement for purposes of a mental health evaluation. (Appx. 2A). The district court

granted summary judgment to Respondents on all of Ms. Graham’s claims against the

Respondents. (Id. 26A-55a).3

The district court held that Respondent officers were entitled to qualified immunity

from Ms. Graham’s Fourth Amendment claim for the warrantless entry into her home

because the Eighth Circuit had applied the “community caretaking” exception to the

warrant requirement to a police officer welfare check in a home, and the facts in the

record justified Respondent officers’ belief that a mental health emergency existed. (Id.

35A-37A).

The Eighth Circuit held that the warrantless entry into Ms. Graham’s home was

substantively justified (not based on specifically on qualified immunity) under the

“community caretaking” exception to the warrant requirement which had previously

applied to the private home. (Appx. 7A-10A). After noting that its prior case law held

that a “reasonable belief” rather than probable cause standard is applicable to the

community caretaking doctrine, the Eighth Circuit concluded, “the warrantless entry into

Graham’s home was justified by a reasonable belief that Graham was experiencing a

mental health emergency and might harm herself or others if not detained.” (Id.)

The district court held that Respondents were entitled to qualified immunity on

The district court initially denied summary judgment on Ms. Graham’s Fourth

Amendment claim against Respondent City of Minneapolis for the mental health hold on

the grounds that the police department’s policy on mental health holds was

unconstitutional. (Id. 49A-51A). The district court subsequently reconsidered and granted

summary judgment on that claim. (Id. 56A-67A). This issue is not part of Mr. Graham’s

instant petition.

Ms. Graham’s Fourth Amendment claim in response to the seizure for a mental health

evaluation. (Id. 38A-39A). The district court recognized that nine other circuits had held

that probable cause was required to detain a person for an emergency mental health

evaluation. (Id. 38A). The district court’s opinion further noted that the prior Eighth

Circuit case of Harris v. Pirch, 677 F.3d 681 (8th Cir. 1982) had been cited by a case in

the Fourth Circuit, Gooden v. Howard Cty., 954 F.2d 960, 968 (4th Cir. 1992), in support

of application of the probable cause standard. (Id.) The district court, however, found that

another case in the Eighth Circuit, Samuelson v. City of New Ulm, 455 F.3d 871, 877-78

(8th Cir. 2006) had applied a “reasonable belief” standard in connection with a police

decision to transport a person for mental health evaluation. (Appx. 39A). The court stated

that the reasonable belief standard is “less exacting than the probable cause standard.”

(Appx. 39A, citing Burke v. Sullivan, 677 F.3d 367, 371 (8th Cir. 2012)). The district

court concluded that the law was not clearly established. (App. 39A-40A). After

determining that Respondent officers were entitled to qualified immunity, the district

court engaged in further analysis of the proper standard, concluded that probable cause is

the standard required for a mental health seizure, and that a reasonable jury could

conclude that the officers in this case lacked probable cause. (Appx. 40A-44A).

In its review, the Eighth Circuit agreed explicitly stated that it was joining least

nine sister circuits in holding that probable cause is required for a seizure for an

emergency mental health evaluation. (Appx. 10A-14A). The court stated, “probable

cause that a person poses an emergent danger - that is one calling for prompt action - to

herself or others can tip the scales fo the Fourth Amendment’s reasonableness balancing

test in favor of the government when it arrests an individual for a mental health

evaluation.” (Id. 13A-14A).

The Eighth Circuit made clear that the mental health seizure was not supported by

probable cause, stating, “The officers do not contend that they had probable cause to

arrest Graham after they entered her home, and we are dubious they could support such a

contention anyway. (Id. 15). The court, however, held that the officers were entitled to

qualified immunity because its own precedent was unclear on the applicable standard. (Id.

15A-17A).

REASONS FOR ALLOWANCE OF THE WRIT

Courts are divided on whether the “community caretaking” exception to the

warrant requirement applies to the home. The Court has apparently recognized the need to

resolve this conflict, having granted certiorari in a pending case that presents this specific

question. Caniglia v. Strom, No. 20-157 (cert. granted Nov. 20, 2020). The instant case

presents the same issue where police officers were deemed justified in their warrantless

home entry based only on this exception which this Court has never recognized. The

applicability of the community caretaking exception was fully briefed in this case before

the district and appellate courts. This case also presents factual circumstances regarding

existence - or non-existence - of danger which can facilitate the Court’s efforts in

formulating an appropriate emergency standard. While Petitioner suggests it would be

prudent to consolidate her case with Caniglia, in the alternative, the Court should at least

hold this case until Caniglia is resolved.

This case also presents an opportunity for the Court to reconsider the judicially

created doctrine of qualified immunity which has come under increasing scrutiny and

criticism as a hindrance providing remedies and deterrence to government misconduct.

Both the district court and the appellate court in this case recognized the overwhelming

authority from appellate courts around the country supporting a probable cause standard

for mental health seizures and strongly concluded it was the correct standard. There was

also no question that Ms. Graham had presented sufficient evidence that Respondent

officers lacked probable cause for a mental health seizure. The lower courts nevertheless

concluded that because the Eighth Circuit had not explicitly held that probable cause was

the proper standard, the officers could not be liable and Ms. Graham lacked a remedy.

Ms. Graham challenged qualified immunity in her brief to the Eighth Circuit. The appeals

court did not address the issue.

THE COMMUNITY CARETAKING FUNCTION OF THE POLICE,

IN THE ABSENCE OF AN IMMEDIATE EMERGENCY, CANNOT

JUSTIFY THE WARRANTLESS SEARCH OF A PRIVATE HOME.

The invocation of the community caretaking function as justification for a

warrantless entry into a person’s home presents a danger to critical Fourth Amendment

protections of people the privacy of their homes in two respects: 1) it undermines the

sanctity of the home that is so strongly integral to the Fourth Amendment by permitting

police enter without the occupier’s consent without prior court approval or evidence of an

immediate danger; and 2) it carries with it the use of the permissive standard of

reasonable belief rather than probable cause which is commonly needed to justify a

substantial intrusion even without a warrant. Appellate courts disagree on this

exception’s applicability to the home, thereby justifying review.

The Community Caretaking Exception is Inconsistent with the Fourth

Amendment.

The Fourth Amendment protects “the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV. This Court has long recognized that “physical entry of the home” is the

“chief evil against which the wording of the Fourth Amendment is directed.” Payton v.

New York, 445 U.S. 573, 585 (1980). “At the Amendment's ‘very core’ stands ‘the right

of a man to retreat into his own home and there be free from unreasonable government

intrusion.’ ” Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 1414 (2013) (quoting

Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679(1961)). It is therefore a

“‘basic principle of Fourth Amendment law’” that warrantless entry into the home is

“‘presumptively unreasonable.’” Groh v. Ramirez, 540 U.S. 551, 559 (2004)(quoting

Payton, 445 U.S. at 586). See also Georgia v. Randolph, 547 U.S. 103, 109 (2006)

(absent an exception, warrantless entry into the home is “unreasonable per se”).

Exceptions to the principle that warrantless entries into the home are unreasonable are

“jealously and carefully drawn.” Randolph, 547 U.S. at 109; see also, Kyllo v. United

States, 533 U.S. 27, 31 (2001). “[A]bsent exigent circumstances or consent, an entry into

a private dwelling to conduct a search or effect an arrest is unreasonable without a

warrant.” Steagald v. United States, 451 U.S. 204, 214 n.7 (1981). Similarly, police

officers must obtain a warrant to arrest an individual in the home, even if they have

probable cause for the arrest. Payton, 445 U.S. at 601-02; Kirk v. Louisiana, 536 U.S. 635

(2002) (per curiam) (warrantless entry, arrest and search based on probable cause to arrest

“plainly violates” Payton.). The Court has explained that “the reasons for upholding

warrantless arrests in a public place do not apply to warrantless invasions of the privacy

of the home.” Payton, 445 U.S. at 576.

In entering Ms. Graham’s home, Appellee officers knowingly crossed the “firm

line” that this Court has drawn “at the entrance to the house.” Payton, 445 U.S. at 590.

The Court repeatedly has confirmed that warrantless entry into the home without consent

or exigent circumstances is “presumptively unreasonable” and “unreasonable per se.”

Groh, 540 U.S. at 559 (quoting Payton, 445 U.S. at 586); Randolph, 547 U.S. at 16.

The community caretaker exception is inapplicable does not qualify as an exigent

circumstance. This Court, previously recognized an emergency aid exception, stating that

“Officers may enter a home without a warrant to render emergency assistance to an

injured occupant or to protect an occupant from imminent injury. Kentucky v. King, 563

U.S. 452, 460, 131 S. Ct. 1849 (2011)(citing Brigham City, Utah v. Stuart, 547 U.S. 398,

403, 126 S.Ct. 1943 (2006)). “This exigency justifies warrantless entry or search if

officers have an ‘objectively reasonable basis for believing ... that a person within the

house is in need of immediate aid....’” United States v. Quarterman, 877 F.3d 794, 797

(8th Cir. 2017)(citing Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546 (2009)).

There was no such emergency in the instant case, and no claim that there was such

an emergency. There was no basis to believe that Ms. Graham was in need of immediate

aid. The Eighth opinion notes circumstances raising concerns about Ms. Graham's mental

health but no indication that there was any immediate danger. There is no reason why the

police could not have sought a warrant or a court order for Ms. Graham's emergency

confinement where a detached and neutral magistrate could have evaluated the merits.

The much broader community caretaking exception is inappropriate to apply to

private homes. In Cady v. Dombrowski, 413 U.S. 433 (1973), this Court held that police

officers did not violate the Fourth Amendment when they searched the trunk of a car that

had been towed after an accident. The Court acknowledged that, “except in certain

carefully defined classes of cases,” police cannot search private property without consent

or a warrant. Id. at 439. It emphasized, however, that “there is a constitutional difference

between houses and cars.” Id. (quoting Chambers v. Maroney, 399 U.S. 42, 52 (1970)).

“[P]olice officers . . . frequently investigate vehicle accidents in which there is no claim

of criminal liability and engage in what, for want of a better term, may be described as

community caretaking functions, totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute.” Id. at 441. The

Court thus held that a “caretaking ‘search’ conducted . . . of a vehicle that was neither in

the custody nor on the premises of its owner . . . was not unreasonable solely because a

warrant had not been obtained.” Id. at 447–48.

Cady drew on a line of cases “treating automobiles differently from houses” for

purposes of the Fourth Amendment. Id. at 441. The Court limited Cady’s rule to vehicle

searches. See e.g., id. at 439 (emphasizing that “automobile searches” are different); id. at

441–42 (explaining the reasons why automobiles receive less Fourth Amendment

protection); id. at 441 (describing “community caretaking functions” only in terms of

“vehicle accidents”); id. at 446–48 (announcing a holding limited to searches of cars). As

the opinion took pains to make clear, it does not apply to houses. See id. at 439–42

(emphasizing “[t]he constitutional difference between . . . houses . . . and . . . vehicles”).

This Court drew community caretaking as a narrow exception to the warrant

requirement which is associated with the recognized automobile exception. It was not

intended to apply to homes. The exception cannot be applied to homes without violating

the basic intent of the Fourth Amendment. The Eighth Circuit and other circuits have run

gravely afoul of the Fourth Amendment by expanding the community caretaking

exception beyond automobiles, and so far as to include private homes.

There is a Circuit Split that Must be Resolved.

Courts across the country are deeply divided about whether the “community

caretaking” exception can justify a warrantless intrusion into a home. There is at least a

four-to-three split on that question among the federal Courts of Appeals. State

courts are also divided. The Third, Seventh, Ninth and Tenth Circuits have held that the

community caretaking exception does not apply to the home. Ray v. Township of Warren,

626 F.3d 170 (3d Cir. 2010)(did not apply to home); United States v. Pichany, 687 F.2d

204 (7th Cir. 1982)(exception did not apply to private warehouse); Sutterfield v. City of

Milwaukee, 751 F.3d 542, 554 (7th Cir. 2014)(community caretaking exception only

applies in the automobile context); United States v. Bute, 43 F.3d 531 (10th Cir.

1994)(did not apply to private residence). The Fifth, Eighth, and First Circuits have held

that the community caretaking exception does extend to homes. Caniglia v. Strom, 953

F.3d 112, 122-25 (1st Cir. 2020), cert granted (Nov. 20, 2020); United States v. York, 895

F.2d 1026 (5th Cir. 1990); Graham v. Barnette, 970 F.3d 1075 (8th Cir. 2020); United

States v. Smith, 820 F.3d 356, 360 (8th Cir. 2016); United States v. Quezada, 448 F.3d

1005 (8th Cir.2006).

There is also a split among state high courts. Arizona, California, New Jersey and

North Dakota have held that the community caretaking exception tdoes not apply to

homes. State v. Wilson, 350 P.3d 800 (Ariz. 2015); People v. Ovieda, 446 P.3d 262 (Cal.

2019); State v. Vargas, 63 A.3d 175 (N.J. 2013); State v. Gill, 755 N.W.2d 454 (N.D.

2008). The high courts of South Dakota and Wisconsin on other hand have applied the

exception to homes. State v. Deneui, 775 N.W.2d 221 (S.D. 2009); State v. Gracia, 826

N.W.2d 87 (Wis. 2013); State v. Pinkard, 785 N.W.2d 592 (Wis. 2010).

As previously stated, the Court has recognized the need to address this split by

granting certiorari in Caniglia. The instant case further demonstrates the split among

federal circuits and states and presents further opportunity to clarify the law.

II.

THE DOCTRINE OF QUALIFIED IMMUNITY SHOULD BE

ELIMINATED OR MODIFIED.

Petitioner urges the Court accept review of this case to address the controversial

doctrine of qualified immunity, by either eliminating or modifying it. The text of 42

U.S.C. § 1983 (“Section 1983”) makes no mention of immunity, and the common law of

1871 did not include any freestanding defense for all public officials. With limited

exceptions, the baseline assumption at the founding and throughout the nineteenth century

was that public officials were strictly liable for unconstitutional misconduct. Judges and

scholars alike have thus increasingly arrived at the conclusion that the contemporary

doctrine of qualified immunity is unmoored from any lawful justification and in need of

correction. See e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J.,

concurring in part and concurring in the judgment) (“In an appropriate case, we should

reconsider our qualified immunity jurisprudence.”); Lynn Adelman, The Supreme Court’s

Quiet Assault on Civil Rights, DISSENT (Fall 2017) (essay by judge on the U.S. District

Court for the Eastern District of Wisconsin); William Baude, Is Qualified Immunity

Unlawful?, 106 CALIF. L. REV. 45 (2018). Moreover, the legal and practical infirmities

of qualified immunity have not gone unnoticed by the Supreme Court. See Kisela v.

Hughes, 138 S.Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (the Court’s “one-sided

approach to qualified immunity” has “transform[ed] the doctrine into an absolute shield

for law enforcement officers, gutting the deterrent effect of the Fourth Amendment”);

Ziglar, 137 S. Ct. at 1871 (Thomas, J., concurring in part and concurring in the judgment)

(“In further elaborating the doctrine of qualified immunity . . . we have diverged from the

historical inquiry mandated by the statute.”); Crawford-El v. Britton, 523 U.S. 574, 611

(1998) (Scalia, J., dissenting) (“[O]ur treatment of qualified immunity under 42 USC §

1983 has not purported to be faithful to the common-law immunities that existed when §

1983 was enacted, and that the statute presumably intended to subsume.”); Wyatt v. Cole,

504 U.S. 158, 170 (1992) (Kennedy, J., concurring) (“In the context of qualified

immunity . . . we have diverged to a substantial degree from the historical standards.”).

The Court’s original legal justification for recognizing a defense of qualified

immunity against § 1983 liability was the purported existence at common law of a general

tort defense of “good faith.” Pierson v. Ray, 386 U.S. 547, 556-557 (1967). The Court

interpreted Congress’s silence on the availability of the defense to a § 1983 defendant as

preserving, rather than abolishing, the defense. Malley v. Briggs, 475 U.S. 335, 342

(1986). Yet there is good cause to doubt that rationale: In 1871, there was no generally

available defense of good faith for constitutional claims, and probably not for common

law torts either. See Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45, 55-57

(2018); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L.

Rev. 1797, 1801-1802 & nn.24- 26 (2018). As a result, efforts to identify support for the

“good faith” rationale for qualified immunity have fallen short, typically relying on cases

concerning specific intentional torts, in which malice was a requirement for liability,

rather than a trans-substantive defense to liability. See Baude, 106 Cal. L. Rev. at 58-69;

Wyatt, 504 U.S. at 172 (explaining that it is a “misnomer” to say the common law

“creat[ed] a good-faith defense”). The case for construing the statute’s silence as

preservation (rather than abolition) is significantly weaker if the purportedly preserved

doctrine was merely one element of a discrete tort, rather than a standalone and widely

available affirmative defense. See Baude, 106 Cal. L. Rev. at 59-60.

Congress created Section 1983 to provide a meaningful legal remedy for abuses of

constitutional and other federal rights by state or local government actors. Qualified

immunity should no longer be utilized as a judicially created tool to eviscerate a statute.

The instant case is an appropriate vehicle for the Court to reconsider the use of

qualified immunity. The lower courts agreed that the correct standard for a mental health

related seizure was probable cause, that the conclusion was universally supported by other

federal appeals courts that had addressed the issue, and that the evidence in the record

could support a determination at trial that police officers lacked probable cause. Ms.

Graham was clearly wronged. There is a federal statute that explicitly provides remedies

for constitutional wrongs committed under color of state law. Ms. Graham, however, was

nevertheless deprived of an existing statutory remedy - or her day in court. It is time to

revisit whether a judicially created doctrine that deprives citizens of remedies granted by

an act of Congress is appropriate.

CONCLUSION

Petitioner Teresa M. Graham respectfully prays that a writ of certiorari issue. In

the event that the Court determines that review is not advisable on both of the issues

presented, Ms. Graham respectfully requests review on one of the issues, or in the

alternative that the Court reserve a ruling until its determination in the pending case of

Caniglia v. Strom.

Respectfully submitted,

Dated: December 28, 2020

s/Jordan S. Kushner

Jordan S. Kushner