Petition for Writ of Certiorari — Shelby Hawkins, Petitioner v. Johnny Banks, III

Supreme Court briefNov 19, 2021

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No. _________

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In The

Supreme Court of the United States

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SHELBY HAWKINS,

JOHNNY BANKS, III,

Petitioner,

Respondent.

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On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Eighth Circuit

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PETITION FOR

A WRIT OF CERTIORARI

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SARA MONAGHAN

Counsel of Record

ARKANSAS MUNICIPAL

LEAGUE

P.O. Box 38

North Little Rock, AR 72115

Telephone: (501)978-6122

Email: smonaghan@arml.org

Counsel for Petitioner

Shelby Hawkins

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LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED

On February 17, 2017, Johnny Banks, and his

wife, Vanessa, had a heated argument in their home

over an anonymous letter she received accusing him

of infidelity. During the argument, Vanessa called

911. Although Vanessa failed to speak to the 911

operator, the operator could hear yelling in the

background. The City of Shannon Hills Police Officer,

Shelby Hawkins, was dispatched to the Banks’ home

to investigate the domestic disturbance and the 911

hang-up call. Officer Hawkins knocked on the front

door and announced his presence multiple times, but

his knocks went unanswered. Officer Hawkins heard

noises and what he described as muffled “nos.” Off.

Hawkins pulled his gun and began kicking the door.

Banks testified that he said, “who the fuck is this?”,

and opened the door, “with a little bit of force” with

his arm raised head high. When Banks opened the

door, something hit Officer Hawkins on the head, and

Officer Hawkins shot Banks in the leg.

The questions presented are:

Whether the Eighth Circuit wrongly

denied qualified immunity to Officer

Hawkins by finding the use of force was

not reasonable as a matter of law when

Officer Hawkins had probable cause to

believe there was a threat of serious

physical injury or death?

QUESTIONS PRESENTED – Continued

Whether the Eighth Circuit wrongly

denied qualified immunity to Officer

Hawkins in the absence of any precedent

finding a Fourth Amendment violation

based on similar facts?

iii

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

The parties to the proceedings in the Court

whose judgment is sought to be reviewed are:

•

Hawkins

individual,

Shelby

defendant

and

appellant

below,

petitioner here.

•

Johnny Banks, III, an individual,

plaintiff and appellee below and

respondent here.

There are no publicly held corporations

involved in this proceeding.

RELATED PROCEEDINGS

•

United States District Court, Eastern

District of Arkansas, Central Division,

Case No. 2:18-cv-00039-BSM, Johnny

Banks v. Shelby Hawkins, City of

Shannon Hills; Order denying summary

judgment entered September 26, 2019.

•

United States Court of Appeals for the

Eighth Circuit, Case No. 19-3092,

Johnny Banks v. Shelby Hawkins;

Judgment entered May 27, 2021; Order

RELATED PROCEEDINGS – Continued

denying rehearing entered on July 2,

2021.

TABLE OF CONTENTS

QUESTIONS PRESENTED...............................

Page

PARTIES TO THE PROCEEDINGS AND RULE

29.6 STATEMENT...........................................

iii

RELATED PROCEEDINGS...............................

iii

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

OPINIONS BELOW............................................

BASIS FOR JURISDICTION IN THIS COURT

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE.................................

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

I. Facts.....................................................

II. Proceedings..........................................

A. Trial Court..................................

B. Court of Appeals........................

1. Excessive Force.................

2. Qualified Immunity..........

3. Dissent...............................

4. Denial of Rehearing..........

REASONS WHY CERTIORARI IS

WARRANTED....................................................

TABLE OF CONTENTS – Continued

Review is necessary because the panel

majority’s blatant disregard of this Court’s

precedent in deciding qualified immunity

thwarts the important public policies

underlying qualified immunity........................8

II.

The panel majority blatantly contradicted this

Court’s precedent in determining Officer

Hawkins’ use of force was unconstitutional

and in denying qualified immunity by failing

to identify a factually similar case to support

its conclusion that Officer Hawkins’s use of

force was unconstitutional and violated clearly

established law................................................10

This Court should review the panel

majority’s determination that Officer

Hawkins’s use of force was

unconstitutional because that

determination by the panel

majority is inconsistent with Eighth

Circuit precedent, blatantly contradicts

this Court’s precedent, and sets bad

precedent controlling police officers’

responses to domestic disturbances in

the Eighth Circuit................................14

Based on Eighth Circuit

precedent in Billingsley v. City of

vii

TABLE OF CONTENTS – Continued

Omaha, Estate of Morgan v.

Cook, and Ransom v. Grisafe,

Officer Hawkins’s shooting of Mr.

Banks was constitutional and did

not violate clearly established

law..............................................16

This Court should grant review

because the panel majority’s

determination that the alleged

time lapse between Officer

Hawkins hearing noises inside

the home and Officer Hawkins’

attempted entry into the home

dissolved a reasonable belief on

Officer Hawkins’ part that there

was an imminent threat was not

supported by precedent from this

Court nor precedent from the

Eighth Circuit and sets

concerning precedent grounded

in bad public policy regarding

police officer responses to

domestic disturbances in the

Eighth Circuit………………......20

Review is necessary because the

panel majority’s reliance on

Craighead v. Lee in determining

viii

TABLE OF CONTENTS – Continued

the use of force was unreasonable

blatantly contradicts this Court’s

precedent...................................23

Review is necessary because the

panel majority’s determination

that Banks’ demeanor when he

opened the door is “in dispute” is

“blatantly and demonstrably

false.”.........................................26

Review is necessary because the

panel majority’s determination

that Officer Hawkins did not

have probable cause to believe

that Banks posed a threat of

significant injury or death

because he did not see what

struck him cannot be the

standard used to determine the

lawfulness of use of force..........27

Review is necessary because the panel

majority blatantly disregarded this

Court’s precedent by failing to identify

a factually similar case for purposes of

determining clearly established law in

deciding qualified immunity...............29

TABLE OF CONTENTS – Continued

CONCLUSION..........................................................37

APPENDIX

Appendix A

Opinion, United States Court of Appeals for

the Eighth Circuit (May 27, 2021)..........................1a

Appendix B

Memorandum Opinion and Order, United States

District Court, Eastern District of Arkansas,

Central Division (September 26, 2019).................30a

Appendix C

Order Denying Rehearing, United States Court

Of Appeals for the Eighth Circuit (July 2, 2021)..40a

TABLE OF AUTHORITIES

CASES

Page

Alderman v. United States,

394 U.S. 165 (1969)................................................ 24

Anderson v. Creighton,

483 U.S. 635 (1987)...................................................6

Ashcroft v. al-Kidd,

563 U.S. 731 (2011).................................................12

Banks v. Hawkins,

999 F3d 521 (8th Cir. 2021)............................passim

Billingsley v. City of Omaha,

277 F.3d 990 (8th Cir. 2002)............................16,17.25

Brosseau v. Haugen,

543 U.S. 194 (2004)................................................6,12

City & Cnty. of San Francisco v. Sheehan,

575 U.S. 600 (2015).....................................................9

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005)....................4,15,23,24,31

Davis v. Scherer,

468 U.S. 183 (1984).....................................................9

TABLE OF AUTHORITIES – Continued

District of Columbia v. Wesby,

138 S. Ct. 577 (2018)..............................................7,29

Edwards v. Byrd,

750 F.3d 728 (8th Cir. 2014)......................................27

Ellison v. Lesher,

796 F.3d 910 (8th Cir. 2015)........................4,6,7,33-35

Estate of Morgan v. Cook,

686 F.3d 494 (8th Cir. 2012)............................16,18,25

Graham v. Connor,

490 U.S. 368 (1989)...................................................14

Harlow v. Fitzgerald,

457 U.S. 800 (1982)................................................9,11

Hope v. Pelzer,

546 U.S. 730 (2002)................................................6,30

Hunter v. Bryant,

502 U.S. 224 (1991).....................................................9

Johnson v. Carroll,

658 F.3d 819 (8th Cir. 2011)......................................11

Kisela v. Hughes,

138 S.Ct. 1148 (2018)...................................7,13,31,33

xii

TABLE OF AUTHORITIES – Continued

Mitchell v. Forsyth,

472 U.S. 511 (1985).....................................................9

Mullenix v. Luna,

136 S.Ct. 305 (2015).....................................4,12,13,31

Nance v. Sammis,

586 F.3d 604 (8th Cir. 2009)...........................6,7,34,35

Pearson v. Callahan,

555 U.S. 223 (2009)...................................................12

Plumhoff v. Rickard,

572 U.S. 765 (2014)..............................................24,26

Ransom v. Grisafe,

79 F.3d 804 (8th Cir. 2015).................7,16,19,20,25,33

Rivas-Villegas v. Cortesluna, 595 U.S. __, 2021

WL 4822662, at *2 (2021)....................12,13,30-32,35

Saucier v. Katz,

533 U.S. 194 (2001)..................................................11

Scott v. Harris,

550 U.S. 372 (2007)...................................20,22,25,26

xiii

TABLE OF AUTHORITIES – Continued

Tennessee v. Garner,

471 U.S. 1 (1985).............................................14,25,26

White v. Pauly,

137 S.Ct. 548 (2017)...........................................passim

Wilson v. Layne,

526 U.S. 603 (1999)...................................................36

UNITED STATES CONSTITUTION AND

FEDERAL STATUTES

United States Constitution, Amendment IV....passim

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

42 U.S.C. § 1983..........................................................1

OPINIONS BELOW

The Eighth Circuit’s opinion, the subject of this

petition, is reported at Banks v. Hawkins, 999 F.3d

521 (8th Cir. 2021) and reproduced in the Petitioner’s

Appendix A hereto at pages 1a-29a. The Eighth Circuit’s denial of petitioner’s motion for rehearing en

banc is produced in Appendix C at Pet. App. 40a. The

opinion of the District Court for the Eastern District

of Arkansas is reproduced at pages 30a-39a.

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BASIS FOR JURISDICTION IN THIS COURT

The Eighth Circuit entered its judgment and

its opinion on May 27, 2021. (Pet. App. 1a.) Petitioner

timely filed a petition for panel and en banc rehearing, and on July 2, 2021, the court denied the petition.

(Pet. App. 40a.)

This Court has jurisdiction to review the

Eighth Circuit’s May 27, 2021 decision on writ of certiorari under 28 U.S.C. § 1254(1).

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CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

Respondent brought the underlying action under 42 U.S.C. § 1983, which states:

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, except that in any action brought against a judicial officer for

an act or omission taken in such officer’s

judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was violated or declaratory relief

was unavailable. For the purposes of

this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of

the District of Columbia.

Respondent alleges Petitioner violated the

rights secured by the United States Constitution’s

Fourth Amendment, which 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, 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.

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STATEMENT OF THE CASE

Facts

On February 17, 2017, Johnny Banks, and his

wife, Vanessa, had a heated argument in their home

over an anonymous letter she received accusing him

of infidelity. During the argument, Vanessa called

911. (Pet. App. 30a.) Although Vanessa failed to

speak to the 911 operator, the operator could hear

yelling in the background. Id. The City of Shannon

Hills Police Officer Shelby Hawkins was dispatched to

the Banks’s home to investigate the domestic disturbance and the 911 hang up call. (Pet. App. 31a.) Hawkins knocked on the front door and announced his

presence multiple times, but his knocks went unanswered. Id. Hawkins heard noises and what he described as muffled “no’s.” Id. Hawkins pulled his gun

and began kicking the door. Id. Banks testified that

he said, “who the fuck is this?”, and opened the door,

“with a little bit of force” with his arm raised head

high. (Pet. App. 6a.) When Banks opened the door,

something hit Hawkins on the head, and Hawkins

shot Banks in the leg. (Pet. App. 6a-7a.)

II.

Proceedings

Trial Court

Banks filed suit in the United States District

Court for the Eastern District of Arkansas Central Division against Officer Hawkins in his individual capacity and against the City of Shannon Hills, Arkansas, claiming, inter alia, that Officer Hawkins used excessive force, in violation of the Fourth Amendment

when Officer Hawkins discharged his gun and struck

Johnny Banks in the upper thigh. The district court

granted summary judgment for the City of Shannon

Hills and denied summary judgment and qualified immunity to Officer Hawkins. (Pet. App. 38a-39a.)

The district court noted, “Individuals have a

right to be free from excessive force if a reasonable officer could not believe that the individual posed a serious threat to the officer or others.” (Pet. App. 35a.)

(citing Ellison v. Lesher, 796 F.3d 910, 917 (8th Cir.

2015) and Mullenix v. Luna, 136 S.Ct. 305, 312 (2015).

(Pet. App 35a.) In denying qualified immunity to Officer Hawkins, the district court held, “When the parties dispute the officer’s reasonableness in using force,

qualified immunity for the officer’s use of force is inappropriate.” Id. (citing Craighead v. Lee, 399 F.3d

954, 963 (8th Cir. 2005). Id.

Court of Appeals

Excessive Force

The Court of Appeals affirmed the decision of

the U.S. District Court. The panel majority relied on

the alleged lapse of time between when Officer Hawkins heard screams inside the home and when he attempted to make entry as its basis for determining

that Officer Hawkins did not have a reasonable belief

that Vanessa Banks was in “imminent danger.” (Pet.

App. 10a-11a.) The panel majority also relied on the

assumption that because Officer Hawkins did not

know Vanessa Banks’s location when he fired the shot

that he was not acting to protect her. (Pet. App 11a.)

Finally, the panel majority concluded that because

there is no evidence in the record to suggest Officer

Hawkins’s injury was attributable to Banks, “no reasonable officer would believe he had probable cause to

use deadly force.” (Pet App. 14a-15a.)

Ultimately, the panel majority concluded that

“Hawkins may have believed his life [was] at stake because of Banks, but on this record, the reasonableness

of that belief is for the jury to decide.” (Pet. App. 15a,

fn. 8.)

Qualified Immunity

After determining that the force was either not

justified, or that whether it was reasonable was a

question for a jury to decide, the panel majority

acknowledged this Court’s instruction that, “To be

clearly established, ‘[t]he contours of the right must be

sufficiently clear that a reasonable office[er] would

understand that what he is doing violates that right,’”

(Pet. App 16a.) (citing Anderson v. Creighton, 483 U.S.

635, 640 (1987), and that the inquiry, “must be particularized to the facts of the case.” Id. citing, White v.

Pauly, 137 S.Ct. 548, 552 (2017). The panel majority

then concluded that, “Though ‘earlier cases involving

fundamentally similar facts can provide especially

strong support for a conclusion that the law is clearly

established, they are not necessary to such a finding.’”

(Pet. App. 16a.) citing Hope v. Pelzer, 546 U.S. 730,

741 (2002).

In denying qualified immunity, the panel majority relied on two Eighth Circuit cases, Ellison v.

Lesher, 796 F.3d 910 (8th Cir. 2015) and Nance v. Sammis, 586 F.3d 604 (8th Cir. 2009). Neither case involved a police response to a domestic disturbance taking place behind closed doors, nor involved situations

where the officers were struck in the head, and in both

cases, the officers had the ability to observe what the

suspects were doing throughout the entire incident before shooting. (Pet. App. 19a.)

Dissent

Judge Stras dissented. Judge Stras pointed out

that the panel majority ignored this Court’s repeated

instruction that any “’generalized right . . . must be

‘clearly established’ in a ‘particularized . . . sense’ to

overcome qualified immunity.” (Pet. App 24a.), citing

Brosseau v. Haugen, 543 U.S. 194, 197-99 (2004) (per

curiam). Judge Stras faulted the panel majority

formulating the right at issue as, “a reasonable officer

had fair warning in February 2017 that he may not

use deadly force against a suspect who did not present

an imminent threat of death or serious injury, even if

the officer felt attacked earlier and even if he believed

the suspect had previously posed a threat,” noting

that such a formulation risked, “sweeping too

broadly,” and pointing out that there were cases that

fell within the panel majority’s stated clearly established rule that did not involve the violation of a constitutional right, specifically noting, Ransom v. Grisafe, 79- F.3d 804 (8th Cir. 2015). (Pet. App. 25a.) Finally, the dissent noted that neither of the two cases

relied on by the panel majority in demonstrating the

law was clearly established, Ellison v. Lesher or Nance

v. Sammis, involved “similar circumstances” to the

case at hand, nor did they “squarely govern the issue.”

(Pet. App. 26a.) citing District of Columbia v. Wesby,

138 S. Ct. 577, 591 (2018) and Kisela v. Hughes, 138

S.Ct. 1148 (2018) at 1153.

Denial of Rehearing

Officer Hawkins petitioned for rehearing and

rehearing en banc. (Pet. App. 40a.) The panel and

Eighth Circuit denied both. Id.

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REASONS WHY CERTIORARI IS WARRANTED

This Court should grant review because in

denying qualified immunity to Officer Banks, the

panel majority blatantly disregarded this Court’s

precedent setting forth the correct analysis to apply

in deciding qualified immunity in excessive force

cases. If review is not granted, the panel majority’s

opinion will thwart the policies underlying qualified

immunity, which this Court has determined to be important to “society as a whole.” See White v. Pauly, 137

S. Ct. 548, 551 (2017) (per curiam).

Review is necessary because the

panel majority’s blatant disregard

of this Court’s precedent in deciding qualified immunity thwarts the

important public policies underlying qualified immunity.

As pointed out by the dissent below, the panel

majority’s decision in Banks v. Hawkins,

does more than expose Officer Hawkins

to liability. It stands as a warning to

other officers who may need to make

split second decisions to protect their

own safety. The message could not be

clearer: even in the absence of a

clearly controlling legal rule, think

twice before acting, regardless of

whether your own life is at stake,

because a court may step in later and

second-guess your decision.

999 F.3d 521, 534 (8th Cir. 2021) (Stras, J., dissenting). Circumstances like the ones presented in this

case are why qualified immunity exists. Id.

This Court recognizes that qualified immunity

is important to society as a whole because it protects

the public’s interest in public officials’ ability to take

legitimately required actions, with independence, and

without inhibition of discretionary action where

clearly established rights are not implicated. See

White v. Pauly, 137 S. Ct. at 551; City & Cnty. of San

Francisco v. Sheehan, 575 U.S. 600, 611, n.3 (2015);

Harlow v. Fitzgerald, 457 U.S. 800 (1982); Mitchell v.

Forsyth, 472 U.S. 511, 525–26. (1985). Failure to recognize these important interests, would not only risk

deterring lawful decisiveness of police officers in

tensely dangerous and rapidly evolving circumstances, it would also risk, “deterring able people from

public service.” Harlow, 457 U.S. at 816.

Police officers are charged with apprehending

criminals and protecting the public. Many times, as

in this case, the discharge of those duties requires

split second decisiveness under extremely tense circumstances, and this Court has recognized, “‘officials

should not err always on the side of caution’ because

they fear being sued.” Hunter v. Bryant, 502 U.S. 224,

229 (1991) (quoting Davis v. Scherer, 468 U.S. 183,

196 (1984)). The panel majority’s opinion risks law

enforcement officers erring on the side of caution for

fear of being sued, even where their safety, or the public’s safety is at risk. Moreover, it effectively limits

the discretion of police officers who are considering

use of force to protect themselves and/or the public in

extremely tense, split-second circumstances by sending the message to those officers that their decisions

will be subject to after the fact, second-guessing, by

judges, without consideration for the on-the-scene

judgment of the police officers who are charged with

protecting the public in the face of death or serious

injury. Limiting a police officer’s judgment in this way

does not promote the public’s interests, moreover, it

contradicts the policies that this Court determined

underlie the necessity for qualified immunity in Harlow.

The important policies underlying qualified immunity are compellingly illustrated by the facts in

this case: A police officer dispatched, at night, to the

residence of a domestic dispute reported by means of

a 911 hang up call on which yelling in the background

was heard, attempting to confirm the safety and provide the necessary assistance to the occupant caller,

initially unable to gain entry into the home after hearing muffled “no’s” from within the residence, then immediately suffering a blow to the head by an unknown

object once the door was finally forcefully opened by a

seemingly aggressive assailant. Society plainly has a

strong interest in allowing a police officer facing such

dangerous and tense circumstances the ability to act

with uninhibited discretion where this type of split

second decision making could be a matter of life or

death to himself, or those he serves to protect. Therefore, this Court should grant review to ensure the important policies underlying qualified immunity as set

out in Harlow are not thwarted by the panel majority’s opinion. If the panel majority’s opinion is allowed to stand as law in the Eighth Circuit, the public’s safety will be at risk.

II.

The panel majority blatantly contradicted this Court’s precedent in

determining Officer Hawkins’s use

of force was unconstitutional and in

denying qualified immunity by failing to identify a factually similar

case to support its conclusion that

Officer Hawkins’s use of force was

unconstitutional

and

violated

clearly established law.

The doctrine of qualified immunity shields officials from liability “unless the official’s conduct violates a clearly established constitutional or statutory

right of which a reasonable person would have

known.” Johnson v. Carroll, 658 F.3d 819, 825 (8th

Cir. 2011). When ruling on qualified immunity, a

court must first consider whether, taken in the light

most favorable to the plaintiff, the facts show a violation of a particular constitutional right. Saucier v.

Katz, 533 U.S. 194, 200 (2001). If the court finds no

constitutional violation occurred, then the official is

entitled to qualified immunity; however, if the facts

as construed could make out a violation, then a second

inquiry is required. Id. The second inquiry requires

determining whether the right is clearly established.

Id. Courts have discretion to find that an alleged constitutional right was not clearly established without

having to resolve first whether there was, in fact, a

constitutional violation. Pearson v. Callahan, 555

U.S. 223, 230 (2009).

This Court has emphasized that the second inquiry “must be taken in light of the specific context of

the case, not a broad general proposition.” Brosseau v.

Haugen, 125 S. Ct. 596, 599 (2004). A right is clearly

established only if “existing precedent [has] placed

the statutory or constitutional question beyond debate.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (emphasis added). “The dispositive question is ‘whether

the violative nature of particular conduct is clearly established.’” Id. at 552 (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 742 (2011)(emphasis added)).

When determining clearly established law, this

Court has repeatedly held that factual “specificity is

especially important in the Fourth Amendment context, where . . . it is sometimes difficult for an officer

to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Rivas-Villegas v. Cortesluna, 595

U.S. __, 2021 WL 4822662, at *2 (2021) (quoting Mullenix, 577 U.S. at 12)). Given the fact specific nature

of excessive force claims, “officers are entitled to qualified immunity unless existing precedent ‘squarely

governs,’ the specific facts at issue.” Kisela v. Hughes,

138 S. Ct. 1148, 1153 (quoting Mullenix, 577 U.S. at

13). Unless the case is obvious, the correct analysis for

qualified immunity in a Fourth Amendment claim requires identification of a “case where an officer acting

under similar circumstances as [the officer] was held

to have violated the Fourth Amendment.” White, 137

S. Ct. at 552.

Of utmost importance here, the panel majority

did not conclude that Officer Hawkins’s conduct, “constituted a run-of-the-mill Fourth Amendment violation.” Id. In contrast, it recognized that the case involved, “novel factual circumstances”. Banks v. Hawkins, 999 F.3d 521, 530 (8th Cir. 2021). Therefore, in

order for the panel majority to correctly determine

clearly established law, this Court’s precedent required the panel majority to identify a factually similar case where the officer’s conduct was determined to

have violated the Fourth Amendment. White, 137 S.

Ct. at 552; see also Rivas-Villegas, 595 U.S. __, 2021

WL 4822662, at *2.

The panel majority did not identify a case that

is even remotely factually similar to demonstrate that

Officer Hawkins’s use of force violated clearly established law. In fact, the existing precedent clearly establishes that Officer Hawkins’s use of force was constitutional. Therefore, this Court should intervene, to

ensure compliance with this Court’s precedent in deciding qualified immunity in order to protect the public’s legitimate interests in allowing police officers to

have proper notice that their actions violate an individual’s rights, and so that the correct analysis for deciding qualified immunity in use of force cases can be

consistently and correctly applied in the Eighth Circuit.

A. This Court should review the

panel majority’s determination

that Officer Hawkins’s use of

force was unconstitutional because that determination by the

panel majority is inconsistent

with Eighth Circuit precedent,

blatantly contradicts this Court’s

precedent, and sets bad precedent controlling police officers’

responses to domestic disturbances in the Eighth Circuit.

In excessive force cases, to demonstrate that a

Fourth Amendment violation occurred, this Court requires a Plaintiff to show that the force used was objectively unreasonable. Graham v. Connor, 490 U.S.

368, 394 (1989). The use of deadly force is not constitutionally unreasonable “[w]here the officer has probable cause to believe that the suspect poses a threat

of serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). The

objective reasonableness standard is judged “from the

perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham, 490

U.S. at 396. Courts must “allow[ ] for the fact that

police officers are often forced to make split-second

judgments -- in circumstances that are tense, uncertain and rapidly evolving -- about the amount of force

that is necessary in a particular situation.” Id. at

397. Reasonableness is judged on the “facts and circumstances of each particular case.” Id. at 396.

This Court should review the panel majority’s

determination that Officer Hawkins shooting Mr.

Banks was unconstitutional, because that determination by the panel majority not only ignored precedent

from the Eighth Circuit, but blatantly contradicted

precedent from this Court with respect to the proper

standard for determining whether deadly force is reasonable. Essentially, the panel majority cited four bases for its determination that the force was unreasonable: (1) that the time lapse between Officer Hawkins

hearing noises inside the home and attempting to

gain entry dissolved a belief by Officer Hawkins that

there was an imminent threat, Banks, at 534-534 (2)

that pursuant to Craighead v. Lee, 399 F.3d 954 (8th

Cir. 2005), because Officer Hawkins fired his weapon

while unable to ascertain Vanessa Banks’s location,

“a jury could conclude that no reasonable officer

would have thought deadly force was necessary;” Id.

at 535; (3) the panel majority’s determination that

Banks’ demeanor when he opened the door is in dispute, Id. at 526; and (4) that a reasonable Officer in

Hawkins’s shoes would not believe he was under attack because he did not see Banks strike him. Id. at

527.

The panel majority’s conclusion that Banks’s

demeanor is in dispute is blatantly contradicted by

the record based on Banks’s own testimony. The remaining reasons cited by the panel majority for its

conclusion that the force was unreasonable are

grounded in bad policy, set bad precedent controlling

how police officers respond to domestic disturbances

in the Eighth Circuit, and blatantly contradict precedent from this court and the Eight Circuit controlling

the standard under which use of force is determined

to be constitutional. Therefore, review should be

granted.

1. Based on Eighth Circuit

precedent in Billingsley v.

City of Omaha, Estate of

Morgan v. Cook, and Ransom v. Grisafe, Officer Hawkins’s shooting of Mr.

Banks was constitutional

and did not violate clearly

established law.

As stated by the panel majority, this case involves novel factual circumstances and there is no

case factually on point for purposes of comparison in

determining the reasonableness of Officer Hawkins’s

use of deadly force; however, the panel majority’s error is demonstrated by comparison to cases from the

Eighth Circuit where officers faced circumstances less

severe than those faced by Officer Hawkins, where

the Eighth Circuit determined the officer was justified in using deadly force.

In Billingsley v. City of Omaha, Officer Pfeiffer

was off-duty and at home when his wife observed a

man, later found to be Paul Billingsley attempt to enter their front yard which was impeded by bushes. 277

F.3d 990, 992 (8th Cir. 2002). Billingsley then continued down the sidewalk, down a neighbor’s driveway,

then in between some houses. Id. Pfeiffer then observed Billingsley attempt to enter two different

neighbors’ homes through the back door. Id. Pfeiffer

then retrieved his service revolver and proceeded outside. Id. Billingsley crossed the neighbor’s yard and

entered the Machals’s home, and Pfeiffer then followed him inside. Id. Once inside, Pfeiffer informed

Billingsley he was a police officer, and ordered him to

put his hands up. Id. Billingsley had a purse in his

left hand, and Pfeiffer could not observe his right

hand. Id. Billingsley then ran out the back door and

jumped off a deck to the ground fifteen feet below. Id.

He landed in a crouched position and then rotated his

left shoulder. Id. Pfeiffer fired a shot from fifteen feet

above that struck Billingsley in the lower right back

and exited out his groin. Id. Billingsley was found to

be unarmed. Id.

The panel majority determined that under the

circumstances, a jury could properly draw the inference of an immediate threat of death or serious bodily

harm to Officer Pfeiffer from his inability to observe

Billingsley’s hand coupled with his shoulder

movement. Id. at 995. In the present case, Officer

Hawkins faced even more tense, uncertain, and rapidly evolving circumstances because he did not have

the opportunity to see Banks’s hands before he suffered a blow to his head from an unknown source, and

he did observe Banks in the doorway with his right

arm raised over his head. (Pet. App. 33a.)(Aplnt. App.

63, 85-87.) If Officer Pfeiffer’s use of deadly force was

justified simply based on his inability to see Billingsley’s right hand coupled with the turn of Billingsley’s

left shoulder, Officer Hawkins had to have been justified after having actually been struck by an unknown

object while facing Banks who was standing with his

arm raised over his head within arms-reach of Officer

Hawkins.

In Estate of Morgan v. Cook, the Eighth Circuit

held that an officer’s shooting of a domestic disturbance suspect was constitutional where, when the officer responded to the scene of a domestic call, the victim was inside the house, the suspect was standing on

the porch of the house with a kitchen knife six to

twelve feet from the officer, and the suspect lifted his

leg as if to take a step in the officer’s direction. 686

F.3d 494, 496–97 (8th Cir. 2012). The totality of the

circumstances facing Officer Hawkins were much

more severe, tense, and rapidly evolving than the circumstances set out in Cook because in Cook, the officer had a clear view of the threat he was facing and

more time to access the situation and prepare to respond. Additionally, there was more distance between

the officer and Cook than between Banks and Officer

Hawkins in this case. Therefore, the panel’s holding

that Officer Hawkins’s shooting of Banks was not objectively reasonable is inconsistent with the precedent set forth by Cook.

Finally, while there is nothing in the record to

suggest that Mr. Banks did not strike or cause Officer

Hawkins to be struck in the head, even if it had been

later determined that Mr. Banks did not in fact strike

Officer Hawkins, Officer Hawkins still had probable

cause to believe there was a threat of serious injury or

death, and he was still justified in using deadly force

under the circumstances even if he was mistaken as

to that belief.

In Ransom v. Grisafe, a 911 caller reported

hearing shots fired from or near a white van. 790 F.3d

804, 807 (8th Cir. 2015). When officers arrived at the

scene and identified the van, the van backfired. Id.

Just after the backfire, the occupant of the van

stepped out of the driver side door. Id. As soon as he

did, the two officers fired eight shots at him. Id. The

Eighth Circuit held that the officers were “justified in

using deadly force to neutralize what they reasonably

believed was a risk of serious physical harm, either to

themselves or others.” Id. at 811. Even though, “Ransom had done nothing wrong, and viewing the scene

in his favor, the officers’ fear of harm was reasonable,

and their gunshots did not violate the constitution.”

Id.

In this case, given all of the circumstances, Officer Hawkins had a reasonable fear of serious harm.

Specifically, he had reason to believe that a violent

crime was taking place inside the home, and when he

attempted to force entry, the door suddenly opened

with force to reveal a seemingly aggressive assailant.

He then immediately received a blow to the head.

Based on these tense, rapidly evolving circumstances,

even if Banks had done nothing wrong, Officer Hawkins’s gunshot did not violate the constitution pursuant to Ransom v. Grisafe.

Most notably with respect to the reasonableness of Officer Hawkins’s use of force, the panel majority expressly concluded that “Hawkins may have

believed his ‘life [was] at stake’ because of Banks.”

Banks v. Hawkins, 999 F.3d 521, 530, n.8 (8th Cir.

2021). Given this conclusion by the panel majority,

had the panel majority properly applied this Court’s

and the Eighth Circuit’s precedent with respect to the

use of deadly force to what the district court determined to be the relevant facts and inferences in this

case, the only conclusion it could have reached is that

the force used by Officer Hawkins was objectively reasonable and not in violation of clearly established law.

See, Scott v. Harris, 550 U.S. 372, 881, n.8 (2007).

Therefore, this Court should grant review to ensure

compliance in the Eighth Circuit with the standard

determined by this Court for determining the constitutionality of deadly force.

2. This Court should grant review because the panel majority’s determination that

the alleged time lapse between Officer Hawkins

hearing noises inside the

home and Officer Hawkins’s attempted entry into

the home dissolved a reasonable belief on Officer

Hawkins’s part that there

was an imminent threat

was not supported by precedent from this Court nor

precedent from the Eighth

Circuit and sets concerning precedent grounded in

bad public policy regarding police officer responses

to domestic disturbances

in the Eighth Circuit.

The panel majority held that a jury “could

credit” Vanessa Banks’s testimony that ten minutes

had elapsed between the time when Officer Hawkins

heard the screams and when he attempted to make

entry. Banks, 999 F.3d at 525. First, a jury would not

make this determination because according to the

timestamped 911 audio recording, Officer Hawkins

arrived at the residence at 21:26:08, radioed that he

was about to make forced entry at 21:28:55, and radioed that shots had been fired at 21:31:12. (Aplnt. App,

471-473.) There was nothing to suggest that this time

stamped audio recording was altered in any way.

This time stamped audio recording of the 911 call is

the type of evidence contemplated by Scott v. Harris

that is so reliable that it forecloses a “genuine issue

for trial” as to its content. 550 U.S. 372, 379 (2007).

The panel majority’s determination that Vanessa

Banks’s testimony on this issue creates a genuine factual dispute directly contradicts this Court’s holding

in Scott v. Harris. Pursuant to Scott v. Harris,

Vanessa Banks’s testimony on this issue is immaterial as to the timing of the events which were accurately indicated in the 911 recording.

Even assuming ten minutes had elapsed between the screams and attempted entry, any reasonable and competent police officer arriving to a scene

of a domestic dispute on the facts assumed by the district court, would believe he/she had probable cause

to believe that there was an imminent threat to the

occupant caller in the home. The succession of “no’s”

and/or noises coupled with no answer at the door

could likely mean the occupant caller was injured or

being restrained inside the home in response to law

enforcement arriving, and no competent officer would

simply leave this scene without taking the necessary

steps to confirm the safety of the caller. At the same

time, it would not be unreasonable for an officer to attempt to wait for back up before attempting to force

entry, like Officer Hawkins did here.

The panel majority also stressed the fact that

Officer Hawkins “never saw anyone commit a crime”

Banks, 999 F.3d at 525. Of course, an officer in a situation like this would never have seen anyone commit

a crime if he was not able to gain entry to the home

where the crime was suspected to be occurring. The

subsequent silence after hearing the concerning

noises would only add to the perception of an imminent threat where the officer cannot confirm there is

NOT a serious crime or assault occurring, or that

someone was not injured, or being restrained inside

the home in response to law enforcement arriving.

Regardless of the timing of the noises in relation to when Officer Hawkins began to force entry, the

totality of the circumstances supported a reasonable

belief that an occupant of the home was in imminent

danger of death or serious injury which, in addition to

the events that unfolded once the door was opened,

supports a finding that his shooting of Banks was objectively reasonable. Even further, the findings by

the panel majority on this point go against the public’s

interests in allowing a police officer to exercise on-thescene discretion on how to properly respond in domestic disturbance situations. Thus, this Court should

grant review to ensure police officers in the Eighth

Circuit do not follow bad precedent set by the panel

majority’s opinion in responding to domestic disturbances.

3. Review is necessary because the panel majority’s

reliance on Craighead v.

Lee in determining the use

of force was unreasonable

blatantly contradicts this

Court’s precedent.

While citing to Craighead v. Lee, 399 F.3d 954,

962 (8th Cir. 2005), the panel majority held that because Officer Hawkins fired his weapon while unable

to ascertain Vanessa Banks’s location, “a jury could

conclude that no reasonable officer would have

thought deadly force was necessary in that moment to

protect Vanessa Banks.” Banks, 999 F.3d at 526. This

holding blatantly contradicts precedent from this

Court on two points.

First, the panel’s reliance on Craighead v. Lee,

399 F.3d 954, 962 (8th Cir. 2005) as a basis for its determination that Officer Hawkins’s use of deadly force

was not justified to protect Vanessa Banks because

Officer Hawkins could not confirm Vanessa’s location

when he shot at Banks blatantly contradicts this

Court’s precedent which holds, “Fourth Amendment

rights are personal rights which . . . may not be vicariously asserted.” Plumhoff v. Rickard, 572 U.S. 765,

777 (2014) (quoting Alderman v. United States, 394

U.S. 165, 174 (1969). The question in this case is

whether Officer Hawkins violated Johnny Banks’s

Fourth Amendment rights, not Vanessa Banks’s. “If

a suit were brought on behalf of [Vanessa Banks] under either § 1983 or state tort law, the risk to [Vanessa

Banks] would be of central concern, not [Johnny

Banks’s].” Plumhoff, 572 U.S. at 777. But, Vanessa

Banks’s presence in the house cannot, “enhance

[Johnny Banks’s] Fourth Amendment rights.” Id.

Secondly, this determination based on what “a

jury could conclude,” should be reviewed because at

the summary judgment stage, this Court has previously held that the reasonableness of an officer’s use

of deadly force is not a question for a jury, rather, is a

pure legal question to be decided by the court by applying existing precedent to the facts that are determined to be the undisputed facts of the case. Scott v.

Harris, 550 U.S. 372, 881, n.8 (2007). Applying the

analogous precedent to the facts of the case at hand,

Officer Hawkins’s use of deadly force was objectively

reasonable. See Estate of Cook v. Morgan, 686 F.3d

494 (8th Cir. 2012); Billingsley v. City of Omaha, 277

F.3d 990 (8th Cir. 2002); Ransom v. Grisafe, 790 F.3d

804 (8th Cir. 2015).

Finally, the panel majority’s determination

that the deadly force was not justified based on

Vanessa Banks’ location blatantly contradicts this

Court’s precedent regarding the standard for deciding

the lawfulness of a use of deadly force. According to

this Court’s precedent, the use of deadly force is not

constitutionally unreasonable “[w]here the officer has

probable cause to believe that the suspect poses a

threat of serious physical harm, either to the officer

or to others.” Garner, 471 U.S. at 11. Under the correct standard set out by Garner, Officer Hawkins

shooting Banks under the circumstances in this case

was constitutional. Therefore, review should be

granted because the panel’s reliance on Craighead v.

Lee as its basis for determining that a jury could determine Officer Hawkins’s use of force was unreasonable blatantly contradicts this Court’s precedent set

out in Plumhoff v. Rickard, Scott v. Harris, and Tennessee v. Garner.

4. Review is necessary because the panel majority’s

determination that Banks’

demeanor when he opened

the door is “in dispute” is

“blatantly and demonstrably false.”

The panel further held that because Banks’s

demeanor when he opened the door was “in dispute,”

Officer Hawkins should not have felt “threatened by

Johnny Banks’s ‘aggressive composure,” nor thought

he was “being attacked.” Banks, 999 F.3d at 526. The

panel majority’s finding that Banks’s demeanor when

he opened the door is in dispute is “blatantly and demonstrably false.” Plumhoff v. Rickard, 572 U.S. 765,

770 (2014). In fact, Banks aggressive demeanor when

he opened the door is not in dispute, and his aggressive demeanor supports a holding that Officer Hawkins had probable cause to believe that Banks posed

a significant threat of injury or bodily harm.

In deciding this issue, this Court must view

“the evidence in the light most favorable to Johnny

Banks and give him the benefit of all reasonable inferences.” Banks, 999 F.3d at 524 (citing Edwards v.

Byrd, 750 F.3d 728, 731 (8th Cir. 2014). The record

clearly shows that Banks himself testified that after

stating, “who the fuck is this,” he opened his door

with force with his left hand while placing his right

arm on the door frame above his head. (Pet. App.

6a.) (Aplnt. 63, 85-87.) Therefore, this Court must assume that this is what happened when Banks opened

the door, rather than the district court’s characterization of the facts that “all he did was open the door,”

or, that his demeanor upon opening the door was in

dispute. Banks, 999 F.3d at 526. According to the

district court, after the door was opened, Hawkins

was struck in the head, and then Hawkins shot

Johnny Banks. (Pet. App. 31a.) On those facts, as the

panel conceded, “Hawkins may have believed his life

was at stake because of Banks,” Banks, 999 F.3d at

534, fn. 8. In other words, Officer Hawkins had probable cause to believe that there was a significant

threat of death or serious bodily harm to himself or

others, and he was justified in shooting Banks.

Therefore, this Court should grant review.

5. Review is necessary because the panel majority’s

determination that Officer

Hawkins did not have

probable cause to believe

that Banks posed a threat

of significant injury or

death because he did not

see what struck him cannot

be the standard used to determine the lawfulness of

use of force.

Finally, the panel held that the fact that a reasonable officer in Hawkins’s shoes would not believe

that he was under attack based on the fact that he

was struck in the head by an unknown object because

“there is nothing to suggest that the injury was attributable to Banks.” Banks, 999 F.3d at 527. While

this statement by the panel is true, it could also be

argued that in a split-second moment, an objectively

reasonable officer in Officer Hawkins’s position had

no reason to believe that whatever struck him did

NOT come from Banks, given that Banks was the only

person in front of him, Banks was in what could be

perceived by an objectively reasonable officer as an

aggressive stance, and no one was on either side of

Officer Hawkins or behind Officer Hawkins. Additionally, if Banks had been holding a weapon or any

other object when the door was opened, Officer Hawkins likely could not have actually seen it because he

was struck in the head instantly when the door was

opened, and he also did not have a clear view of his

hands because it was dark. Under the panel’s logic,

even if it had been determined that Banks struck Officer Hawkins, if Officer Hawkins did not see it, his

reaction in shooting Banks was unreasonable. This

cannot be the standard for determining the lawfulness of police officers’ uses of force. The fact of the

matter remains on the scene, Officer Hawkins only

had a split second to decide, and under these circumstances, it was not unreasonable for Officer Hawkins

to believe there was a threat of death or serious injury, and the panel majority even said that he “may

have held” such a belief. Therefore, he was justified in

shooting Mr. Banks.

B. Review is necessary because the

panel majority blatantly disregarded this Court’s precedent by

failing to identify a factually similar case for purposes of determining clearly established law in

deciding qualified immunity.

This Court should grant review because, in

denying qualified immunity to Officer Hawkins, the

panel majority blatantly disregarded this Court’s

precedent regarding the appropriate analysis to be

applied to a claim for qualified immunity where the

case is not obvious, by failing to identify a case where

the officer was held to have violated the Fourth

Amendment under similar facts.

This Court has not yet decided what precedents, other than its own, qualify as controlling authority for determining clearly established law for

qualified immunity purposes. District of Columbia v.

Wesby, 138 S. Ct. 577, 591 n. 8 (2018). Regardless,

neither the panel below, or the appellee, cited to any

precedent which determines clearly established law

for the purpose of deciding qualified immunity in this

case because no precedent with the requisite factual

similarity exists from either this Court or any United

States Circuit Court. The panel majority admitted

this fact by noting that this case involves a “novel factual circumstance” Banks, 999 F.3d at 530, which only

supports the conclusion that there cannot be precedent with the requisite factual similarity that would

have put Officer Hawkins on fair notice in February

2017 that his actions would violate clearly established

law.

Due to the lack of a factually similar case, the

panel majority blatantly disregarded this Court’s instruction to federal circuit courts: in deciding clearly

established law in excessive force cases, where the

case is not obvious, the court must identify a case

where the officer acting under similar facts was held

to have violated the Fourth Amendment. White v.

Pauley, 137 S. Ct. 548 92017);Rivas-Villegas v. Cortesluna, 595 U.S. __, 2021 WL 4822662 (2021). Rather

than applying the requisite analysis and granting

qualified immunity, the panel majority expressly disregarded this Court’s mandate regarding the correct

analysis to apply when deciding qualified immunity

and stated, “[t]hough ‘earlier cases involving fundamentally similar facts can provide especially strong

support for a conclusion that the law is clearly established, they are not necessary to such a finding.’”

Banks, 999 F.3d 521, 528 (quoting Hope v. Pelzer, 536

U.S. 730, 741 (2002)). The panel majority further disregarded this Court’s mandate in stating, “Banks

does not have to point to a nearly identical case on the

facts for the right to be clearly established,” Id., and

[t]he issue is not whether prior cases present facts substantially similar to the

present case but whether prior cases

would have put a reasonable officer on

notice that the use of deadly force in

these circumstances would violate [the

plaintiff’s] right not to be seized by the

use of excessive force.

Id. (quoting Craighead v. Lee, 399 F.3d 954, 962 (8th

Cir. 2005). Finally, the panel majority expressly disregarded this Court’s precedent controlling qualified

immunity in excessive force cases by concluding that

a constitutional violation may be “sufficiently clear,”

even in “unique circumstances,” and that “that principle repeats itself through Eighth Circuit jurisprudence.” Banks, 999 F.3d at 529. All of these statements by the panel majority expressly disregard the

express instructions set out by opinions from this

Court over the past five years in White, Kisela, and

Rivas regarding the correct analysis to apply in deciding qualified immunity in excessive force cases: unless the case is an obvious one, police officers are entitled to qualified immunity unless existing precedent

“‘squarely governs’” the specific facts at issue. Kisela

v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 136 S. Ct. 305 (2015)). In other words,

in denying qualified immunity in a claim involving a

police officer’s use of force, if the case isn’t obvious, as

the panel majority admitted is true in this case, a

court must identify a factual similar case where it was

determined the officer’s use of force violated the plaintiff’s civil rights. White, 137 S. Ct. at 552.

In applying what the panel majority determined to be the appropriate level of specificity for determining clearly established law, the panel majority

concluded that

a reasonable officer had fair warning in

February 2017 that he may not use

deadly force against a suspect who did not

present an imminent threat of death or

serious injury, even if the officer felt attacked earlier and even if he believed the

suspect had previously posed a threat.

Banks, 999 F.3d at 529. Importantly, the panel majority did not cite to any case factually on point which

establishes that conclusion, nor does that statement

even correctly encompass the facts of this case. The

facts in this case demonstrate that Officer Hawkins

did reasonably believe there was an imminent threat

of death or serious harm. Further, that conclusion by

the panel majority is precisely the defining of the constitutional right at a high level of generality which

has been explicitly rejected by this Court in cases

which are not obvious. See White v. Pauly, 137 S. Ct.

548; Rivas-Villegas, No. 20-1539, 2021 WL 4822662.

As the dissent noted, “[n]ot only is this formulation so

broad that it risks sweeping too broadly. The proof is

in the pudding: there are cases that both fall within

the court’s supposed clearly established rule and do

not involve the violation of a constitutional right.”

Banks, 999 F.3d at 532 (Stras, J., dissenting). As the

dissent pointed out, both cannot be true and pointed

to the Eighth Circuit case, Ransom v. Grisafe, 790

F.3d 804 (8th Cir. 2015) (per curiam) to demonstrate

this point. Id. As set out above, Ransom involved a

case where officers used deadly force against a suspect who did not present an imminent threat of death

or serious injury, which fits within the panel majority’s proposed rule below. Id. The panel majority in

Ransom granted qualified immunity to the officers because, “though the driver had done nothing wrong, . .

. the officers’ fear of harm was reasonable.” Id. (citing

Ransom, 790 F.3d at 811). At the least, based on Ransom, a reasonable officer in Officer Hawkins’s shoes

would not have had “fair notice” that shooting Banks

that night was constitutionally excessive based on his

reasonable fear of harm. Kisela v. Hughes, 138 S. Ct.

1148, 1152 (2018) (quotation marks omitted).

Ultimately, in an attempt to demonstrate the

clearly established law in this case, the panel majority relied on two cases which did not involve even remotely similar circumstances to the case at hand as

the basis for its holding that Officer Hawkins’s conduct violated clearly established law.

The first case, Ellison v. Lesher, as the dissent

pointed out, did not involve similar circumstances to

the present case for two reasons. Banks, 999 F.3d at

533. First, in the present case Officer Hawkins was

called to the scene of a reported domestic disturbance

which was taking place behind closed doors. Id. at

523–24, 532. In contrast, the officers in Ellison, who

merely passed by the open door of Ellison’s apartment

while patrolling an apartment complex on foot for security, walked by the open door of an apartment and

saw Mr. Ellison “‘relaxed’” and “‘sitting on his couch,’”

and initiated contact with Ellison to make sure he was

“okay.” Ellison v. Lesher, 796 F.3d 910, 915 (8th Cir.

2015). They could fully observe him throughout their

entire contact with him. Id. Additionally, in Ellison,

the Eighth Circuit denied qualified immunity based

on a disputed material fact, specifically, as to whether

Mr. Ellison was merely holding his cane, or swinging

it in a threatening manner at the moment he was

shot. Ellison v. Lesher, 796 F.3d 910, 916–17 (8th Cir.

2015).

In this case, it is not disputed that Officer Hawkins was struck in the head immediately after Mr.

Banks forcefully swung the door open, after stating,

“who the fuck is this,” and with his right hand raised

above his head. (Pet. App. 23a.) Thus, Ellison is not

a case with substantially similar facts for purposes of

determining clearly established law in this case.

The second case, Nance v. Sammis, involved a

fatal shooting of a twelve-year-old boy who was displaying a toy gun. 586 F.3d 604, 607–08 (8th Cir.

2009). “Viewing the facts in the light most favorable

to the plaintiffs, we ‘presume[d] that the officers

approached [the boy] without identifying themselves

as police officers, that the toy gun was tucked in [his]

pants throughout the entire confrontation, that [the

officer] shot him twice without warning.” Banks, 999

F.3d at 533 (Stras, J., dissenting) (quoting Nance, 586

F.3d at 610–11). Like the distinguishing factor in Ellison, the officers in Nance were never instantaneously struck by an unknown source, and the circumstances were less tense, rapidly evolving, and splitsecond because they “had the opportunity to observe

what the boy was doing the entire time.” Id. (citing

Nance, 586 F.3d at 607). In this case, Officer Hawkins

had no time to observe Mr. Banks before the door

swung open and he was struck in the head. Therefore,

Officer Hawkins had less time to contemplate a response. Thus, like Ellison, Nance is not factually similar enough to establish clearly established law in this

case.

As set out above, Ellison and Nance are factually distinguishable from the present case. In Ellison

and Nance, the officers had an opportunity to fully observe the suspects before engaging with them.

Whereas here, Officer Hawkins had no opportunity to

observe Banks before he was struck in the head with

an object as the suspect opened the door.

As a result, the panel majority conducted no

particularized factual analysis in order to determine

clearly established law relevant to the circumstances

Officer Banks faced, as required by White and Rivas.

The Eighth Circuit was not allowed to disregard this Court’s prior instruction to identify a factually similar case holding that an officer acting under

similar facts as Officer Hawkins violated the Fourth

Amendment before denying qualified immunity. No

case involving facts similar to the facts in this case

holds that an officer would not be justified in using

deadly force in these circumstances. Therefore, Officer Hawkins was not given fair notice that shooting

Banks under the circumstances he faced violated

clearly established law. Because there is no clearly

established law on this point, Officer Hawkins is entitled to qualified immunity.

Notably, not even the panel judges could agree

as to the state of the clearly established law as it pertains to the facts of this case, or to the constitutionality of Officer Hawkins shooting Mr. Banks. Judge

Stras dissented from the panel majority’s determination that the use of force was unconstitutional, and

that Officer Hawkins violated clearly established law.

“If judges…disagree on a constitutional question, it is

unfair to subject police to money damages for picking

the losing side of the controversy.” Wilson v. Layne,

526 U.S. 603, 618 (1999). If a panel of judges who

have months to consider the reasonableness of a use

of force from the comfort of their chambers cannot

agree on its lawfulness, then a police officer making a

split second judgment on the scene facing tensely dangerous circumstances cannot be expected to reach the

correct conclusion in a split second moment.

Under these circumstances, review is necessary to ensure consistency with the mandate of this

Court in applying the correct analysis for qualified

immunity to which Officer Hawkins is entitled under

this court’s precedent. Most importantly, review of

the denial of qualified immunity in this case is necessary to ensure the protection of officer discretion in

taking required legitimate actions in split second circumstances where clearly established rights are not

at issue, which as this Court has recognized, is important to society as a whole.

−−−−−−−♦−−−−−−−

CONCLUSION

There is simply no precedential case that

makes it “sufficiently clear” that Officer Hawkins’s

actions violated a constitutional right. Under these

circumstances, Officer Hawkins should be granted

qualified immunity. Officer Hawkins hereby respectfully requests review of the panel majority’s opinion,

so that he may be granted the protection afforded by

qualified immunity and the dismissal of this instant

case, and so that society’s interests which underly

qualified immunity will not be thwarted by the panel

majority’s opinion.

Respectfully submitted,

SARA MONAGHAN

Counsel of Record

ARKANSAS MUNICIPAL

LEAGUE

P.O. Box 38

North Little Rock, AR 72115

Telephone: (501)978-6122

Email: smonaghan@arml.org

Counsel for Petitioner

Shelby Hawkins

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.