Amicus Curiae Brief — County of Sacramento, California, et al., Petitioners v. Kenard Thomas

NO. 21-1220

In the

Supreme Court of the United States

COUNTY OF SACRAMENTO AND

NICHOLAS RUSSELL,

Petitioners,

v.

KENARD THOMAS,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL POLICE ASSOCIATION

IN SUPPORT OF PETITIONER

ROBERT S. LAFFERRANDRE

COUNSEL OF RECORD

RANDALL J. WOOD

JEFFREY C. HENDRICKSON

JESSICA L. DARK

PIERCE COUCH HENDRICKSON

BAYSINGER & GREEN, L.L.P.

1109 NORTH FRANCIS AVENUE

OKLAHOMA CITY, OK 73106

(405) 235-1611

RLAFFERRANDRE@PIERCECOUCH.COM

APRIL 7, 2022

SUPREME COURT PRESS

COUNSEL FOR AMICUS CURIAE

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE ................... 1

INTRODUCTION AND

SUMMARY OF THE ARGUMENT ..................... 1

ARGUMENT ............................................................... 3

I.

THE COURT SHOULD TAKE THIS CASE TO

REINFORCE THE PROPER SCOPE OF

SUMMARY JUDGMENT ........................................ 3

A. A Brief History of Summary Judgment ..... 3

B. The Court’s Clarifications to Rule 56......... 5

C. The Problems Posed by the Ninth

Circuit’s Memorandum Opinion and

Others Like It ............................................. 7

D. The Reasons for Review............................ 11

II. THE COURT SHOULD TAKE THIS CASE TO

EMPHASIZE THE IMPORTANCE OF ASSESSING

THE TOTALITY OF THE CIRCUMSTANCES IN

WHETHER THE LAW WAS CLEARLY

ESTABLISHED ................................................... 13

III. THE COURT SHOULD TAKE THIS CASE TO

EMPHASIZE TO LOWER COURTS THE

IMPORTANCE OF PERFORMING A FULL FACT

EVALUATION .................................................... 16

CONCLUSION.......................................................... 21

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

A.K.H. ex rel. Landeros v. City of Tustin,

837 F.3d (9th Cir. 2016)....................................... 9

Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970) ............................................. 5

American Red Cross v. Palm Beach Blood

Bank, Inc., 143 F.3d 1407 (11th Cir. 1998) ...... 20

Anderson v. Creighton,

483 U.S. 635 (1987) ..................................... 14, 19

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ................................... passim

Ayeni v. CBS Inc.,

848 F. Supp. 362 (E.D.N.Y. 1994) ..................... 19

Beal v. Paramount Pictures Corp.,

20 F.3d 454 (11th Cir. 1994) ............................. 13

Bridges v. Wilson,

996 F.3d 1094 (10th Cir. 2021) ......................... 14

Brosseau v. Haugen,

543 U.S. 194 (2004) ........................................... 13

Carter v. Stanton,

405 U.S. 669 (1972) ........................................... 17

Celotex Corp. v Catrett,

477 U.S. 317 (1986) ............................... 2, 5, 7, 10

City of Escondido, Cal. v. Emmons,

139 S. Ct. 500 (2019) ......................................... 18

Clay v. Equifax, Inc.,

762 F.2d 952 (11th Cir. 1985) ........................... 17

iii

TABLE OF AUTHORITIES – Continued

Page

Escobar v. Montee,

895 F.3d 387 (5th Cir. 2018) ............................. 15

Estate of Valverde by and through Padilla v.

Dodge, 967 F.3d 1049 (10th Cir. 2020) ............. 12

Fidelity & Deposit Co. v. U.S.,

187 U.S. 315 (1902) ............................................. 4

Fogarty v. Gallegos,

523 F.3d 1147 (10th Cir. 2008) ......................... 17

Graham v. Connor,

490 U.S. 386 (1989) ............................................. 8

Gupta v. Melloh,

19 F.4th 990 (7th Cir. 2021).............................. 13

Iascone ex rel. Isacone v.

Conejo Valley Unified School District,

15 F. App’x. 401 (9th Cir. 2001) ........................ 17

Jones v. Nevada ex rel. Bd. of Regents for

Nevada Sys. of Higher Ed.,

No. 2:14-CV-01930-APG-NJK, 2017 WL

10276018 (D. Nev. June 20, 2017) .................... 11

Kingsley v. Hendrickson,

576 U.S. 389 (2015) ........................................... 18

Leatherman v. Tarrant County Narcotics

Intelligence and Coordination,

507 U.S. 163 (1993) ............................................ 11

Lombardo v. City of St. Louis, 141 S. Ct. 2239

(2021) ........................................................... 18, 19

Matsushita Electrical Industrial Co. v. Zenith

Radio Corp., 475 U.S. 574 (1986) ................... 5, 7

iv

TABLE OF AUTHORITIES – Continued

Page

Mazloum v. Dist. of Columbia Metropolitan

Police Dep’t., 522 F. Supp. 2d 24

(D.D.C. 2007) ..................................................... 12

Neitzke v. Williams,

490 U.S. 319 (1989) ............................................. 9

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................. 6

Ouza v. City of Dearborn Heights, Mich.,

969 F.3d 265 (6th Cir. 2020) ............................. 12

Permian Basin Area Rate Cases,

390 U.S. 747 (1968) ........................................... 13

Reitan v. Travelers Indem. Co.,

267 F.2d 66 (7th Cir. 1959) ............................... 11

Scott v. Harris,

550 U.S. 372 (2007) ................................. 3, 12, 13

Shalala v. Illinois Council on Long Term Care,

Inc., 529 U.S. 1 (2000) ....................................... 12

Sims v. Leonard,

465 F. App’x. 869

(11th Cir. Mar. 20, 2012)................................... 14

Solomon v. Petray,

699 F.3d 1034 (8th Cir. 2012) ........................... 18

Tennessee v. Garner,

471 U.S. 1 (1985) ..................................... 8, 14, 19

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ............................................. 11

Waine v. Sacchet,

356 F.3d 510 (4th Cir. 2004) ............................. 13

v

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV .............................................. 14

JUDICIAL RULES

Fed. R. Civ. P. 8(a)(2) ................................................ 11

Fed. R. Civ. P. 9(b) .................................................... 11

Fed. R. Civ. P. 12(b)(6) ................................................ 9

Fed. R. Civ. P. 50 ........................................................ 6

Fed. R. Civ. P. 52(a) .................................................. 17

Fed. R. Civ. P. 56 .............................................. passim

Fed. R. Civ. P. 56(c) .............................................. 5, 10

Fed. R. Civ. P. 56(e) .................................................. 10

OTHER AUTHORITIES

Charles E. Clark & Charles U. Samenow,

The Summary Judgment,

38 YALE L.J. 423 (1929) ....................................... 4

David Marcus,

Institutions and an Interpretive

Methodology for the Federal Rules of Civil

Procedure, 2011 UTAH L. REV. 927 (2011) ........ 11

Edward Brunet,

The Use and Misuse of Expert Testimony

in Summary Judgment, 22 U.C. DAVIS L.

REV. 94 (1988) ...................................................... 7

Melissa L. Nelken,

One Step Forward, Two Steps Back:

vi

TABLE OF AUTHORITIES – Continued

Page

Summary Judgment After Celotex, 40

HASTINGS L.J. 53 (1988). ..................................... 5

Schwarzer, Hirsch & Barrans,

The Analysis and Decision of Summary

Judgment Motions: A Monograph on Rule

56 of the Federal Rules of Civil Procedure,

139 F.R.D. 441 (1992) .............................. 4, 5, 6, 7

TABLE OF AUTHORITIES

1

INTEREST OF THE AMICUS CURIAE1

The National Police Association is an Indiana

non-profit corporation founded to provide educational

assistance to supporters of law enforcement and

support to individual law enforcement officers and

the agencies they serve. The NPA seeks to bring

important issues in the law enforcement realm to the

forefront of public discussion in order to facilitate

remedies and broaden public awareness.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

In this case, the Ninth Circuit took an uncomplicated use-of-force matter with numerous undisputed

facts about the totality of the circumstances encompassing the use of force and reduced it into a short

memorandum opinion that omitted nearly any

mention of the circumstances in which the officers used

1 Under Rule 37.6 of the Rules of this Court, Amicus Curiae

states that no counsel for a party has written this brief in whole or

in part and that no person or entity, other than Amicus Curiae,

its members, or its counsel, has made a monetary contribution

to the preparation or submission of this brief. Under Rule 37.2,

Amicus Curiae states that Petitioners received timely written

notice and have consented in writing to the filing of this amicus

brief. Amicus Curiae further states that Respondent has likewise

received timely written notice and has consented in writing to

the filing of this amicus brief. As such, under Rule 37.2(a), Amicus

Curiae states that the written consent of all parties has been

provided.

2

force. See App.2a-App.3a. Instead, the Ninth Circuit

more or less adopted wholesale Plaintiff/Appellee’s view

of a few select facts and used them as grounds to

reverse the District Court’s grant of qualified

immunity to Deputy Nicholas Russell. This despite

the aforementioned bevy of undisputed facts that the

District Court found relevant to its decision that the

law was not clearly established on the date of the use

of force.

Amicus Curiae National Police Association writes

now to emphasize that in addition to the well-developed

argument in Petitioners’ cert petition, the Court should

review this case because the Ninth Circuit’s decisionmaking method—adopting only the nonmovant’s facts

and flatly ignoring relevant, undisputed facts that

benefit the movants—runs headlong into this Court’s

well-settled summary-judgment precedent in Celotex

Corp. v Catrett and Anderson v. Liberty Lobby and

does violence to certain provisions of Fed. R. Civ. P.

56. Making matters worse, the Ninth Circuit’s opinion

is symptomatic of a problem afflicting more and more

Circuit and District Court summary judgment opinions

generally. Moreover, this case is yet another example

of the Ninth Circuit’s refusal to properly perform a

qualified immunity analysis and refusal to properly

perform its function as an intermediate appellate

court.

For these reasons, in addition to those raised in

the Petitioners’ Petition for Writ of Certiorari, the Court

should the Court should grant Petitioners’ request

and review this matter.

3

ARGUMENT

I.

THE COURT SHOULD TAKE THIS CASE TO

REINFORCE THE PROPER SCOPE OF SUMMARY

JUDGMENT.

The chief problem reflected in the Ninth Circuit’s

underlying opinion is that it rejects years of precedent

governing how District and Circuit Courts are to

evaluate summary judgment motions. In brief, courts

are to “believe []” the evidence of the non-movant,

and draw all “justifiable inferences” in the nonmovant’s favor.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). But to “believe” the non-movant’s

evidence does not mean to “consider only and accept

only the non-movant’s facts.” Unfortunately, that is

precisely how the Ninth Circuit elected to proceed

below. And even more unfortunately, the Ninth

Circuit’s decision is not alone; an increasing number

of District and Circuit Courts, aided by dicta from

this Court’s opinion in Scott v. Harris, are treating

Anderson’s “believe and credit” holding as a directive

to rule as if the plaintiff’s, and only the plaintiff’s,

list of undisputed facts were at issue. This is flatly

contrary to principles from Anderson and warrants

reversal.

A. A Brief History of Summary Judgment.

Over 150 years ago, the origins of summary judgment procedure took root in English law. At first

available only to plaintiffs, and more specifically

creditors seeking to collect debts, summary process

sought to reduce the delay that often ensued when

4

defendants invoked frivolous defenses to avoid paying.

See Schwarzer, Hirsch & Barrans, The Analysis and

Decision of Summary Judgment Motions: A Monograph

on Rule 56 of the Federal Rules of Civil Procedure,

139 F.R.D. 441, 446 (1992). Over time, the process took

hold in American law, for many of the same policy

reasons. See, e.g., Fidelity & Deposit Co. v. U.S., 187

U.S. 315, 320 (1902) (“The purpose of [summary judgment] is to preserve the court from frivolous defences

and to defeat attempts to use formal pleading as a

means to delay the recovery of just demands”).2 This

occurred in name only, however, as American judges

viewed summary process with skepticism, a “drastic

remedy to be used only sparingly.” Schwarzer, supra.

Consequently, it wasn’t.

The mid-to-late 1920s marked a sea change.

Around that time, scholars began advocating for summary judgment as a tool to relieve heavily congested

court dockets that were plagued by excessive delay.

See, e.g., Charles E. Clark & Charles U. Samenow,

The Summary Judgment, 38 YALE L.J. 423, 455

(1929). This line of thinking found black-letter footing

in the 1938 adoption of the Federal Rules of Civil

Procedure. See Schwarzer, supra. Rule 56 of the

newly established Federal Rules now permitted both

sides to move for summary judgment. A subsequent

1963 amendment made clear that a party opposing

summary judgment could not simply rest on their

pleadings, but must offer evidence of a genuine issue

2 Fidelity & Deposit Co. specifically referenced the “75th Rule”

of the D.C. Supreme Court, which was effectively that court’s

summary process rule. Amicus Curiae replaced it with the term

“summary judgment” for ease of understanding.

5

for trial. Id. As a result of these clarifications, the

process gained momentum. Id.

Still, perceived inconsistencies in Rule 56 hampered its effectiveness. In particular, courts—spurred

on by this Court’s pronouncement in Adickes v. S.H.

Kress & Co., 398 U.S. 144 (1970)—struggled with

whether a defendant could prevail by showing simply

that plaintiff had no evidence to support an element of

their case, or whether defendant had to affirmatively

disprove an element of plaintiff’s case to win. Courts

and commentators generally interpreted Adickes as

saying defendants had to disprove the plaintiff’s claim

to win on summary judgment. See Melissa L. Nelken,

One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40 HASTINGS L.J. 53, 64 n. 56 (1988).

As a result, the summary judgment procedure

remained little used. In one commentator’s words, it

was “encumbered by ambiguities, an overlay of

restrictive interpretations, and considerable judicial

aversion.” See Schwarzer, supra, at 451.

B. The Court’s Clarifications to Rule 56.

The Court addressed these problems in a series

of mid-1980s opinions: Celotex Corp. v Catrett, 477

U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477

U.S. 424 (1986), and Matsushita Electrical Industrial

Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Two

announcements in these cases are key. First, in Catrett,

the Court held that the summary judgment movant

need not negate an element of the opposing party’s

case to prevail, overturning/casting doubt on Adickes.

See 477 U.S. at 322-23 (“Rule 56(c) mandates the

entry of summary judgment . . . against a party who

fails to make a showing sufficient to establish the

6

existence of an element essential to that party’s

case[.]”).

Second, and most important here, is the Court’s

pronouncement in Anderson. There the Court considered a libel claim brought by Liberty Lobby against

the publisher of a magazine called The Investigator,

which had run pieces portraying Liberty Lobby as

“neo-Nazi, anti-Semitic, racist, and Fascist.” Anderson,

477 U.S. at 245. The publisher moved for and obtained

summary judgment on the theory that Liberty Lobby

and its associates were limited public figures and that

the publisher’s reporters did not act with actual malice.

Id. at 246; accord. New York Times Co. v. Sullivan,

376 U.S. 254, 279 (1964). The Court of Appeals

affirmed in part and reversed in part, and this Court

accepted certiorari. Id. at 247.

In reversing the Court of Appeals for applying

the wrong substantive standard when the Court of

Appeals itself reversed the District Court, this Court

made several holdings that infused Rule 56 with both

clarity and staying power. First, this Court defined

“genuine” and “material” for purposes of the phrase

“genuine dispute of material fact.” Id. at 247-28.

Second, this Court held that Rule 56 (summary judgment) and Rule 50 (directed verdict) employed the same

test for granting the movant relief (“whether the

evidence is sufficient to sustain a verdict for the nonmoving party,” see Schwarzer, supra, at 451). Third—

and most importantly here—this Court held that

reviewing courts must view the evidence in the light

most favorable to the non-movant and assess evidentiary sufficiency according to the evidentiary burden

imposed by substantive law. Id. at 252, 255.

7

This holding, combined with this Court’s decisions in Catrett and Matsushita Electrical Industrial

Co., brought significant clarity to Rule 56. See Edward

Brunet, The Use and Misuse of Expert Testimony in

Summary Judgment, 22 U.C. DAVIS L. REV. 94, 125-26

(1988) (“Courts now use rule 56 to dispose of specific

types of cases formerly thought to be particularly

inappropriate for rule 56 treatment.”). In the ensuing

years, the federal summary judgment process achieved

recognition “not only as a procedure for avoiding

unnecessary trials on insufficient claims or defenses

but also as an effective case management device to

identify and narrow issues.” See Schwarzer, supra, at

451. And it remains true that “properly used, summary

judgment helps strip away the underbrush and lay

bare the heart of the controversy between the parties.”

Id. at 452. But it is also true that “proper use of the

rule is the sine qua non of its utility.” Id. And that is

where the Ninth Circuit’s opinion in this case went

awry.

C. The Problems Posed by the Ninth

Circuit’s Memorandum Opinion and

Others Like It.

The District Court did not issue a written order

but ruled from the bench that Deputy Nicholas Russell

was entitled to qualified immunity because the law

was not clearly established. See App.24a. The District

Court properly noted the existence of numerous undisputed facts that bore on its qualified immunity

analysis; namely, that (1) the officers had been called

to serve a restraining order on a suspect who had

violated a domestic violence order; (2) the suspect’s

victim had been told she was a victim of domestic

violence order including that her nose had been broken;

8

(3) the victim believed the suspect had a gun; (4) the

suspect was known to carry knives, to evade police,

and to be violent; (5) the suspect was on probation;

(6) the suspect had prior arrests for domestic violence

as well as resisting and obstructing peace officers; (7)

the officers made numerous announcements but that

the suspect continued to hide in the closet; (8) the

suspect never responded to any announcement before

exiting the closet; and (9) the suspect, within two or

three feet of Deputy Russell, opened the door with no

prior verbal warning. See App.12a-App.13a. These

facts were undisputed and material to the “totality of

the circumstances” of the use of force. The District

Court was right to consider them.

The Ninth Circuit, however, acted more or less

as though these facts did not exist. Instead, it noted

merely that (1) Deputy Russell “shot Thomas while

he was slowly emerging from a closet with his hands

by his ears in response to police commands to show

himself,” and (2) the room was lit, Deputy Russell’s

weapon-mounted light was directed at Thomas, and

Thomas’s hands were right by his face. See App.2aApp.3a. The Ninth Circuit said nothing about the

undisputed facts listed above that plainly inform the

“totality of the circumstances” inquiry required in useof-force cases by Tennessee v. Garner, 471 U.S. 1, 8

(1985) and Graham v. Connor, 490 U.S. 386 (1989).

Thus, framed under the guise of “viewing the

evidence in the light most favorable to Thomas,” see

App.2a, the Ninth Circuit “assumed” the truth of

Thomas’s version of events (see App.3a) and then

reversed the District Court’s qualified immunity ruling.

Id. According to the Ninth Circuit, it was clearly

established that “the police cannot quickly escalate

9

to deadly force when they have little prior information

indicating that a suspect is armed, the suspect has

not committed a serious crime, and the suspect acts

in a manner that can be interpreted as consistent with

police orders—even when an officer and the suspect

are in very close quarters and even when the suspect’s

actions could also be interpreted as threatening.” See

App.3a (citing A.K.H. ex rel. Landeros v. City of Tustin,

837 F.3d 1105 (9th Cir. 2016)).3

This ruling rests on a faulty premise. It may be

true that the law is so clearly established, but because

the Ninth Circuit appears to only have considered

the non-movant’s facts, it abjectly failed to properly

adjudge summary judgment under Fed. R. Civ. P. 56.

Anderson makes clear that lower courts must believe

the non-movant’s facts (unless belied by documentary

evidence), but in no sense does Anderson stand for

the premise that the reviewing court accept only the

non-movant’s facts.4 This indefensible mis-step improperly deprived Deputy Russell of the benefits of

the qualified immunity defense, but more importantly,

3 The Ninth Circuit likewise cited additional factual scenarios

from past Ninth Circuit cases as having clearly established the

law, but Amicus Curiae need not discuss them here as Petitioners

have done so at length and those citations are built on the same

faulty premise—the acceptance of only the non-movant’s facts—

as the discussion of Landeros.

4 Indeed, the Ninth Circuit’s Memorandum Opinion appears to

have employed a standard more akin to that used by trial and

intermediate appellate courts in deciding motions to dismiss

under Fed. R. Civ. P. 12(b)(6). See Neitzke v. Williams, 490 U.S.

319, 327 (1989) (ruling on 12(b)(6) motion to dismiss requires

“operating on the assumption that the factual allegations in the

complaint are true[.]”).

10

it eliminates the “sine qua non” of summary judgment

procedure entirely.

If this case were to serve as the newest pronouncement on how Rule 56 procedure operates,

then Rule 56 as known no longer exists. All plaintiffs

would have to do to survive summary judgment is

find the only the most tenuous pieces of evidence to

support their list of facts. The onus would then shift

to the movant, usually the defendant, to argue why

the plaintiff’s evidence on any particular point was

not sufficient, instead of why the undisputed facts

show no genuine issue of material fact as Rule 56

currently mandates. This would effectively return

the Rule 56 process to something similar to a preAnderson, pre-Catrett world by forcing the movant to

negate the existence of a fact that, under Anderson,

the non-movant would have had to prove.

Further, if the Ninth Circuit’s Memorandum Opinion accurately sums up how Rule 56 operates, then it

reads certain provisions of Rule 56 out of existence.

Rule 56(c), for example, describes how “a party” is to

support their “factual positions.” Rule 56(e) describes

how a court can act if a party “fails to properly support

an assertion of fact.” If the Ninth Circuit was correct,

then as to summary judgment movants, these provisions are a nullity. It wouldn’t matter how movants

are to “support” their “factual positions” or “properly

support an assertion of fact” because those factual

positions wouldn’t be considered. This makes the

referenced parts of Rule 56(c) and Rule 56(e) null,

running afoul of the foundational canon of construc-

11

tion5 that texts should construed so that “no clause,

sentence, or word shall be superfluous, void, or

insignificant.” See TRW Inc. v. Andrews, 534 U.S. 19,

31 (2001).

At the very least, Rule 56 and its interpreting

cases require courts to consider—and not ignore—

relevant, undisputed facts. See Reitan v. Travelers

Indem. Co., 267 F.2d 66, 69 (7th Cir. 1959) (“[W]hile

we must consider the evidence in the light most

favorable to the plaintiff . . . [t]his does not mean

that we may ignore uncontradicted, unimpeached

evidence supporting defendant’s position”); see also

Jones v. Nevada ex rel. Bd. of Regents for Nevada

Sys. of Higher Ed., No. 2:14-CV-01930-APG-NJK,

2017 WL 10276018, at *3 (D. Nev. June 20, 2017) (“I

must view the facts in the light most favorable to

[plaintiff] but that does not mean I must ignore

undisputed facts adverse to him”).

D. The Reasons for Review.

To sum the above, the Ninth Circuit Memorandum Opinion’s view of summary judgment is (1)

not supported by precedent and (2) does violence

to the text of Rule 56. These are reason enough

alone for review. But making this case even more

5 Whether the Federal Rules are subject to canons of construction

appears up for debate. See David Marcus, Institutions and an

Interpretive Methodology for the Federal Rules of Civil Procedure,

2011 UTAH L. REV. 927, 935 (2011). Still, the Court has employed

canons of construction in interpreting the Federal Rules before,

so it is not without precedent. See Leatherman v. Tarrant County

Narcotics Intelligence and Coordination, 507 U.S. 163, 168 (1993)

(interpreting Rules 8(a)(2) and 9(b) with reference to the canon

of expressio unius est exclusio alterius).

12

problematic, and thus even more a candidate for

review, is the fact that its vision for summary

process is actively percolating in the lower courts.

See, e.g., Ouza v. City of Dearborn Heights, Mich.,

969 F.3d 265, 278 (6th Cir. 2020) (“The precise scope

of our appellate jurisdiction on interlocutory appeal

from a denial of qualified immunity is whether ‘the

plaintiff’s version of facts demonstrates a violation of

clearly established rights’”) (citation omitted); Estate

of Valverde by and through Padilla v. Dodge, 967

F.3d 1049, 1055 (10th Cir. 2020) (citing Tenth Circuit

precedent for the proposition that when considering

a qualified immunity summary judgment motion, a

court “usually must adopt the plaintiff’s version of the

facts[.]”); Mazloum v. Dist. of Columbia Metropolitan

Police Dep’t., 522 F. Supp. 2d 24, 34 (D.D.C. 2007)

(“As the Supreme Court has indicated, resolution of

the first stage of the qualified immunity inquiry

normally requires ‘adopting . . . the plaintiff’s version

of the facts.’”).

As Mazloum suggests, many of these holdings

seem prompted by dicta from Scott v. Harris, where

this Court noted that the “light most favorable”

standard “in qualified immunity cases . . . usually

means adopting . . . the plaintiff’s version of the facts.”

550 U.S. 372, 378 (2007). But given the principles

announced in Catrett and Anderson, discussed above,

the dicta from Scott cannot be said to have established

a new interpretation of Rule 56 because the dicta in

question runs contrary to Anderson’s principles without

acknowledging it was doing so. This Court “does not

normally overturn, or so dramatically limit, earlier

authority sub silentio.” Shalala v. Illinois Council on

Long Term Care, Inc., 529 U.S. 1, 18 (2000); see also

13

Permian Basin Area Rate Cases, 390 U.S. 747, 775

(1968) (this Court “does not decide important questions

of law by cursory dicta inserted in unrelated cases”);

Waine v. Sacchet, 356 F.3d 510, 517 (4th Cir. 2004)

(“[D]icta does not and cannot overrule established

Supreme Court precedent”).

At bottom, to the Scott dicta’s demise, Rule 56

requires an analysis of both parties’ fact submissions

in the course of identifying what facts are

undisputed and material. See, e.g., Gupta v. Melloh,

19 F.4th 990, 997 (7th Cir. 2021) (“Taking the facts

in the light most favorable to the non-moving party

does not mean that the facts must come only from

the nonmoving party.”); Beal v. Paramount Pictures

Corp., 20 F.3d 454, 459 (11th Cir. 1994) (“Evidence is

viewed in a light most favorable to the nonmoving

party . . . this, however, does not mean that we are

constrained to accept all the nonmovant’s factual

characterizations and legal arguments”). As such,

the Court should take this case to correct its dicta in

Scott and emphasize to District and Circuit Courts

that Rule 56 requires an evaluation of both parties’

slate of alleged undisputed facts in reaching their

conclusions on summary judgment.

II. THE COURT SHOULD TAKE THIS CASE TO

EMPHASIZE THE IMPORTANCE OF ASSESSING

THE TOTALITY OF THE CIRCUMSTANCES IN

WHETHER THE LAW WAS CLEARLY ESTABLISHED.

Additionally, the Court should take this case to

emphasize to lower courts that in a use-of-force,

qualified immunity case, evaluating the “totality of

the circumstances” is mandatory even if the only

prong at issue is the clearly established one. See, e.g.,

Brosseau v. Haugen, 543 U.S. 194, 195, 198 (2004)

14

(inquiring as to whether conduct violated clearly

established law “‘in light of the specific context of

the case’” and construing “facts . . . in a light most

favorable” to the nonmovant); Sims v. Leonard, 465 F.

App’x. 869, 871 (11th Cir. Mar. 20, 2012) (“The court

must . . . evaluate those facts to determine whether,

as a matter of law, the alleged conduct was ‘clearly

established’ as a constitutional violation at the time

it occurred”) (citation omitted).

The “totality of the circumstances” framework

emerges from the nature of the Fourth Amendment’s

reasonableness inquiry. Reasonableness, in the Fourth

Amendment context, is not a negligence inquiry;

instead, it is considered by balancing “the nature and

quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the

government interests alleged to justify the intrusion.”

Garner, 471 U.S. at 8; see also Bridges v. Wilson,

996 F.3d 1094, 1100 (10th Cir. 2021) (discussing the

difference between state-law negligence and Fourth

Amendment reasonableness).

In short, this balancing test is designed to determine whether a particular sort of search or seizure

was justified. Garner, 471 U.S. at 8-9. That is, justified

by the circumstances that led to the use of force.

Those circumstances must, therefore, be evaluated.

If a court does not, and instead simply cherry picks

one specific, “extremely abstract right []” that it then

says was clearly established, then the test the court

would be employing would convert the rule of qualified

immunity “into a rule of virtually unqualified liability[.]” See Anderson v. Creighton, 483 U.S. 635, 639

(1987).

15

Given the above, it was essential that the Ninth

Circuit evaluate the whole set of circumstances facing

Deputy Russell. Its failure to do so is significant. As

the District Court acknowledged but the Ninth Circuit

panel basically ignored, at the time Deputy Russell

and others went to the home:

(1) the officers had been called to serve a

restraining order on a suspect who had

violated a domestic violence order;

(2) the suspect’s victim had been told she was a

victim of domestic violence order including

that her nose had been broken;

(3) the victim believed the suspect had a gun;

(4) the suspect was known to carry knives, to

evade police, and to be violent;

(5) the suspect was on probation;

(6) the suspect had prior arrests for domestic

violence as well as resisting and obstructing

peace officers;

(7) the officers made numerous announcements

but that the suspect continued to hide in

the closet;

(8) the suspect never responded to any

announcement before exiting the closet; and

(9) the suspect, within two or three feet of

Deputy Russell, opened the door with no

prior verbal warning.

See App.12a-App.13a. This is the exact type of information that shapes an officer’s view of how to conduct

herself or himself in arresting a suspect. See, e.g.,

Escobar v. Montee, 895 F.3d 387, 394 (5th Cir. 2018)

16

(emphasizing facts within the defendant officer’s

knowledge as the basis for reversing a denial of

qualified immunity).

The Ninth Circuit’s opinion should have contained

references to what, for example, a reasonable officer

serving a restraining order on a domestic violence

suspect would have done. Or how a reasonable officer

who had reason to believe the suspect may be in

possession of a gun would have proceeded. Or how a

reasonable officer who knew the suspect had a reputation for to carrying knives, fleeing police, and generally being violent would have proceeded. Something

of that nature was required to lift the Ninth Circuit’s

opinion from reversible error to acceptable review. As

it stands, however, the opinion contains almost nothing

of the sort. For that reason, in addition to those discussed elsewhere above and in Petitioners’ Petition

for Writ of Certiorari, the Court should grant Petitioners’ request and review this matter.

III. THE COURT SHOULD TAKE THIS CASE TO

EMPHASIZE TO LOWER COURTS THE IMPORTANCE

OF PERFORMING A FULL FACT EVALUATION.

Lastly, were this Court to deny review, it would

stand as a tacit acceptance of the panel’s decision to

disavow their obligation to the public to provide

reasoned, thorough evaluations of the legal questions

before them. An encumbering problem in the Ninth

Circuit’s decision below is that it completely disregards

the general principle that courts, District or Circuit,

should strive to inquire into the facts and circumstances of the cases before them in reaching a

decision.

17

It is not enshrined that lower courts must provide

detailed written findings except in specific situations,

which do not include on dispositive motions. See, e.g.,

Fed. R. Civ. P. 52(a); accord. Anderson, 477 U.S.

at 250 and n. 6 (“There is no requirement that the

trial judge make findings of fact,” but “findings are

extremely helpful to a reviewing court”). But when

they do not, especially on dispositive motions, lower

courts deprive the appellate courts of their “tools of

review,” see Clay v. Equifax, Inc., 762 F.2d 952, 957

(11th Cir. 1985), and reduce the appellate courts to

the plight of “the proverbial blind hog, scrambling

through the record in search of an acorn.” Id. This

requires the appellate court—already made significantly busy by the fact that lower-court appeals in the

federal system are typically a matter of right, not

discretion—to engage in a “cumbersome review of the

record to ferret out facts that the district court likely

assumed.” Fogarty v. Gallegos, 523 F.3d 1147, 1154

(10th Cir. 2008).

Likely for that reason, this Court has empowered Circuit courts to set aside District Court grants

of summary judgment when the subject order is

“opaque and unilluminating as to either the relevant

facts or the law with respect to the merits of appellants’

claim.” Carter v. Stanton, 405 U.S. 669, 671 (1972);

accord. Iascone ex rel. Isacone v. Conejo Valley Unified

School District, 15 F. App’x. 401, 404 (9th Cir. 2001)

(unpublished).

The need for thorough evaluation is all the more

pressing in qualified immunity appeals due to the

often fact-intensive nature of the question the court

system must answer, and the fact that officers “are

entitled to a thorough determination of their claim[s]

18

of qualified immunity if that immunity is to mean

anything at all.” Solomon v. Petray, 699 F.3d 1034,

1039 (8th Cir. 2012). Indeed, Deputy Russell did suffer

by virtue of the Ninth Circuit’s failure to seriously

inquire into the facts and circumstances at issue, in

the same way that the state actors in the above-listed

cases suffered by their respective District Courts’

failure to assess the qualified immunity defense in the

first instance. That alone merits the Court intervening

to reverse, or at least review, the Ninth Circuit panel’s

decision. But, as it were, this Court has not shied

away from remanding cases back to the Circuit Courts

for more thorough factual evaluations, as shown

recently by its decision in another excessive force case,

Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021).

In Lombardo, the Eighth Circuit affirmed a

District Court’s grant of summary judgment where

the District Court found the officers’ use of force not

excessive. Id. at 2241. The Court granted certiorari

to review, taking particular note that the Eighth

Circuit appeared to conclude that, based on Circuit

precedent, the use of a prone restraint was “per se

constitutional so long as an individual appears to

resist officers’ efforts to subdue him.” Ibid. Given

that this apparent holding seemed to minimize facts

that could have distinguished the relied-on precedent

and appeared important under the a recent excessiveforce opinion (Kingsley v. Hendrickson, 576 U.S. 389

(2015)), the Court vacated the judgment and remanded

the case to give the Eighth Circuit “the opportunity

to employ an inquiry that clearly attends to the facts

and circumstances in answering” the Court’s questions.

Id. at 2242; see also City of Escondido, Cal. v. Emmons,

139 S. Ct. 500, 503-04 (2019) (vacating a denial of

19

qualified immunity where the Circuit Court failed to

“ask[] whether clearly established law prohibit the

officers from stopping and taking down a man in

these circumstances”) (emphasis added).

The Ninth Circuit’s limited opinion here in no

sense fulfills the court system’s obligation to thoroughly

assess Deputy Russell’s qualified immunity defense.

See App.2a-App.3a. The Ninth Circuit flatly refused

to acknowledge important, undisputed facts about

the “totality of circumstances” facing Deputy Russell

at the time—such as the fact that the caller advised

that she’d had her nose broken in a domestic violence

incident. See App.12a. Moreover, the Ninth Circuit

made little effort to apply the Court’s settled excessiveforce legal framework to the facts it did find. See

App.2a-App.3a.

Though the order appealed dealt only with the

clearly established prong of qualified immunity, a fullthroated factual evaluation of the present circumstances is crucial to determining whether the law

was clearly established in the same circumstances. See,

e.g., Ayeni v. CBS Inc., 848 F. Supp. 362, 365 (E.D.N.Y.

1994) (“Inquiry into whether a right is clearly established cannot stop at a generalized level of fact

. . . [a]n evaluation of the state of the law at the time

of the official action in light of the particular factual

circumstances of the case is required.”) (citing Anderson, 483 U.S. at 640); see also Section II, supra, at 13.

As such, it cannot be that the Ninth Circuit’s opinion

satisfies the Court’s hinted-at preference for lower

courts to thoroughly evaluate and discuss the questions

before them. See Lombardo, 141 S. Ct. at 2422.

The requirement for fact-laden legal opinions is

fundamentally important in the qualified immunity

20

context. It is as important for the public to have a

robust qualified immunity regime—including what is

and what is constitutional—as it for law enforcement. The Eleventh Circuit once aptly stated that “a

court must craft its orders so that those who seek to

obey may know precisely what the court intends to

forbid.” American Red Cross v. Palm Beach Blood

Bank, Inc., 143 F.3d 1407, 1411 (11th Cir. 1998). That

opinion was in the context of preliminary injunctions,

but in a realm where adjudications of immunity operate

in the same conduct-defining way, the sentiment

makes just as much sense. As such, the Court should

grant certiorari and, at the very least, vacate the

Ninth Circuit’s ruling and remand it for further

consideration.

21

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

ROBERT S. LAFFERRANDRE

COUNSEL OF RECORD

RANDALL J. WOOD

JEFFREY C. HENDRICKSON

JESSICA L. DARK

PIERCE COUCH HENDRICKSON

BAYSINGER & GREEN, L.L.P.

1109 NORTH FRANCIS AVENUE

OKLAHOMA CITY, OK 73106

(405) 235-1611

RLAFFERRANDRE@PIERCECOUCH.COM

COUNSEL FOR AMICUS CURIAE

APRIL 7, 2022