Petition for Writ of Certiorari — Mucio Ramirez, Petitioner v. Christopher Martin

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------MUCIO RAMIREZ,

Petitioner,

v.

CHRISTOPHER MARTIN,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------NILES ILLICH

Counsel of Record

SCOTT H. PALMER

JAMES ROBERTS

SCOTT H. PALMER, P.C.

15455 Dallas Parkway, Suite 540

Addison, Texas 75001

(972) 204-5452

Niles@scottpalmerlaw.com

Scott@scottpalmerlaw.com

James@scottpalmerlaw.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

No dispute exists that Petitioner was intoxicated

when Respondent assaulted him, but the police tried

to stop Petitioner for a broken taillight. Petitioner initially failed to yield to the police. Petitioner did, however, stop his car and surrender to police authority.

Police body cameras established Petitioner got out of

his car, put his hands in the air, and followed instructions to “drop to his knees.” Petitioner, who speaks

Spanish, complied, but after receiving further instructions, Petitioner stood up and then—at officer instruction—returned to his knees. Petitioner received no

further instructions and Respondent approached Petitioner from behind and slammed Petitioner’s face into

the concrete street. The act was so violent Petitioner’s

foot went above the trunk of the car.

The analysis for this use of force should have occurred under Graham v. Connor. 490 U.S. 386 (1989).

Nominally the Fifth Circuit used Graham. But more

than Graham, the Fifth Circuit used its recent opinion

in Salazar v. Molina. 37 F.4th 278, 282 (5th Cir. 2022).

The result of Salazar is that if an arrestee is ever noncompliant with the police, then the police can use “intermediate force” (such as a taser or dog bite) without

recrimination.

Petitioner asks whether his initial non-compliance

followed by surrender permitted Respondent to reject

the then-existing circumstances and slam Petitioner’s

face into the street?

Salazar is before this Court in cause number 22564.

ii

PARTIES TO THE PROCEEDINGS

Petitioner Mucio Ramirez filed a civil complaint

under 18 U.S.C. § 1983 in the Northern District of Texas,

Dallas Division, against Respondent, Officer Christopher Martin. Petitioner alleged Respondent used excessive force. Petitioner was the Petitioner in the

district court and the appellant in the Fifth Circuit.

Respondent was the sole defendant in the district court

and the only appellee in the Fifth Circuit.

RELATED PROCEEDINGS

This petition originated from:

•

Ramirez v. Martin, No. 3:20-CV-1927-S, 2021

WL 6063594, at *1 (N.D. Tex. Dec. 22, 2021),

aff ’d, No. 22-10011, 2022 WL 16548053 (5th

Cir. Oct. 31, 2022); and,

•

Ramirez v. Martin, No. 22-10011, 2022 WL

16548053, at *1 (5th Cir. Oct. 31, 2022).

The issues presented in this case are substantively related with those in Salazar v. Molina. Salazar

is before this Court in cause number 22-564.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

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

ii

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

iii

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

v

INTRODUCTION ................................................

1

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

2

JURISDICTION ...................................................

2

CONSTITUTIONAL, STATUTORY, AND RULES

INVOLVED .......................................................

2

STATEMENT .......................................................

5

I.

Factual Background ..................................

5

II.

Procedural History ....................................

8

REASON TO GRANT THE PETITION ............... 12

I.

Salazar’s Emphasis on Flight Abandon’s

Decades of Precedent. This Court’s Precedent Requires District and Appellate

Courts to Look to the Reasonableness of

the Search or Seizure. Salazar Looks Only

or Predominately to Whether the Arrestee

Fled and Reasons from the Fact ................ 12

CONCLUSION..................................................... 16

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX

United States District Court for the Northern

District of Texas, Memorandum Opinion and

Order, December 22, 2021 ................................ App. 1

United States District Court for the Northern

District of Texas, Judgment, December 22,

2021 ................................................................ App. 16

United States Court of Appeals for the Fifth Circuit, Opinion, October 31, 2022 ..................... App. 17

United States Court of Appeals for the Fifth Circuit, Judgment, October 31, 2022 .................. App. 27

United States Court of Appeals for the Fifth Circuit, Order Denying Petition for Rehearing,

December 13, 2022 ......................................... App. 29

v

TABLE OF AUTHORITIES

Page

CASES

Carpenter v. United States, ___ U.S. ___, 138

S. Ct. 2206, 201 L. Ed. 2d 507 (2018) .....................12

Graham v. Connor, 490 U.S. 386 (1989) ............ 1, 8, 10,

..................................................................... 11, 13, 15

Ramirez v. Martin, No. 22-10011, 2022 WL

16548053 (5th Cir. Oct. 31, 2022) ...................... ii, 10

Ramirez v. Martin, No. 3:20-CV-1927-S, 2021

WL 6063594 (N.D. Tex. Dec. 22, 2021), aff ’d,

No. 22-10011, 2022 WL 16548053 (5th Cir.

Oct. 31, 2022) ............................................................ ii

Salazar v. Molina, 37 F.4th 278 (5th Cir.

2022) ...............................................................1, 10-14

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

L. Ed. 2d 889 (1968) .......................................... 12, 13

CONSTITUTION

U.S. CONST. amend. IV ............................. 1, 2, 11-13, 15

STATUTES

42 U.S.C. § 1983 ............................................................3

RULES

FED. R. CIV. P. 56(a)-(c) ............................................. 3-5

1

INTRODUCTION

Petitioner was intoxicated, the police tried to stop

him and Petitioner fled. Petitioner’s flight was neither

long nor at high speed. Petitioner stopped and surrendered to police authority. (App. 2).

One police officer at the scene recognized (and verbalized) that Petitioner did not speak English and only

understood Spanish. Petitioner did not comply with police instructions perfectly, but at the moment Respondent used force, Petitioner was compliant. Although

compliant, Respondent slammed Petitioner’s face into

the concrete with such force that Petitioner’s foot flew

above the trunk of the car. (App. 3-App. 4).

The police reviewed the use of force and suspended

Respondent—without pay—for “unnecessary or excessive force.”

In resolving this case, the Fifth Circuit relied on a

recent opinion, Salazar v. Molina. Salazar created a

new rule. (App. 22). Under Salazar, past flight forfeits

any opportunity for the arrestee to surrender. This is

contrary to Graham v. Connor. Salazar’s binary approach removes all considerations of the circumstances

facing the police at the moment the force is used. This

approach contradicts the plain language of the Fourth

Amendment and this Court’s precedent.

---------------------------------♦---------------------------------

2

OPINIONS BELOW

The Fifth Circuit’s opinion is not reported. (App.

17-App. 26). The Northern District of Texas is likewise

unreported. (App. 1-App. 15).

---------------------------------♦---------------------------------

JURISDICTION

The court of appeals entered its opinion and judgment on October 31, 2022. (App. 27). Petitioner filed a

motion for en banc reconsideration, after receiving an

extension, on November 28, 2022. The Court denied

this on December 13, 2022. (App. 29). Petitioner’s petition was due on March 13, 2023. On March 2, 2023,

Justice Alito granted an extension to file this petition

until April 12, 2023. Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).

---------------------------------♦---------------------------------

CONSTITUTIONAL, STATUTORY,

AND RULES INVOLVED

The Fourth Amendment to the Constitution of the

United States provides “[t]he 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.” U.S. CONST. amend.

IV.

3

42 U.S.C. § 1983 provides:

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.

42 U.S.C. § 1983.

Rule 56 of the Federal Rules of Civil Procedure

provides:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move

for summary judgment, identifying each

claim or defense—or the part of each claim or

defense—on which summary judgment is

sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of

law. The court should state on the record the

reasons for granting or denying the motion.

4

(b) Time to File a Motion. Unless a different

time is set by local rule or the court orders otherwise, a party may file a motion for summary

judgment at any time until 30 days after the

close of all discovery.

(c)

Procedures.

(1) Supporting Factual Positions. A

party asserting that a fact cannot be

or is genuinely disputed must support the assertion by:

(A) citing to particular parts

of materials in the record,

including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes

of the motion only), admissions, interrogatory answers,

or other materials; or

(B) showing that the materials cited do not establish

the absence or presence of a

genuine dispute, or that an

adverse party cannot produce admissible evidence to

support the fact.

(2) Objection That a Fact Is Not

Supported by Admissible Evidence. A

party may object that the material

cited to support or dispute a fact

5

cannot be presented in a form that

would be admissible in evidence.

(3) Materials Not Cited. The court

need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An

affidavit or declaration used to support or oppose a motion must be

made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on

the matters stated.

FED. R. CIV. P. 56(a)-(c).

---------------------------------♦---------------------------------

STATEMENT

I.

Factual Background

The assault that gave rise to this suit occurred on

April 14, 2019. Ramirez filed suit in July 2020. Martin

answered and asserted the affirmative defense of qualified immunity. Martin moved for summary judgment

on qualified immunity and Ramirez responded. The

district court considered the motion, the response, the

reply, and the objections and granted the motion.

The Garland police stopped Petitioner for a broken

taillight. Petitioner initially failed to yield to the police.

Petitioner did, however, stop his car and surrender to

police authority.

6

The body camera recording from Officer Swavey

shows Respondent arrive. The video establishes that

Officer Swavey, who was standing directly next to Respondent, recognized and voiced the need to speak

Spanish. The video shows Petitioner get out of his car

and put his hands into the air. The video also establishes that Officer Swavey verbally identified signs of

intoxication. Petitioner followed the instruction to

“drop to his knees.” Petitioner received further instructions, which Officer Swavey verbally recognized that

Petitioner would not understand, and Petitioner stood

up. Petitioner returned to his knees, as instructed.

Some officers went to “clear the car” while Respondent

approached Petitioner. Petitioner received no further

instructions, Respondent approached Petitioner from

behind, and Respondent violently slammed Petitioner’s face/head into the concrete street. The act was

so violent that Petitioner’s foot was thrown into the

air so that it was level with the top of the car’s trunk.

(App. 1-App. 4).

7

Petitioner filed a complaint with the City of Garland concerning the use of force. The City investigated

and suspended Respondent for five days for his use of

excessive force. The Garland Police Chief described the

unconstitutional use of force this way:

Officers Matin and Swavy began advancing

toward Mr. Ramirez and no other verbal commands were given. Mr. Ramirez turned his

head and looked back toward Officer Martin

as he approached. Although he was not resisting, Officer Martin reached down and performed some type of arm leverage tactic by

grasping Mr. Ramirez’s right wrist with his

right hand and pulling it back and away from

Mr. Ramirez’s body. Officer Martin then used

his left hand as a fulcrum grabbing near Mr.

Ramirez’s right elbow and pushing forward,

creating leverage that forced Mr. Ramirez’s

right shoulder and upper torso to fall forward

and to the ground. Mr. Ramirez struck the

pavement with his right shoulder and head.

The leverage and torque created by the tactic

used by Officer Martin, combined with the

momentum of the fall and downward grade of

the roadway, caused Mr. Ramirez’s feet and

legs to come off the ground and his body rotated and twisted clockwise as he came to

rest.

The Police Chief suspended Respondent—without

pay—for violating the policy that prohibits police officers from using “unnecessary or excessive force.” The

Police Chief wrote, “Officer Martin’s conduct in using

an arm levering tactic against Mr. Ramirez—while he

8

was on his knees and not resisting—thereby causing

him to impact the pavement with his head, clearly violated [the policy against the use of excessive force.].”

II.

Procedural History

Petitioner filed suit, Respondent filed an answer

and asserted qualified immunity; Respondent moved

for summary judgment. The district court ultimately

granted Respondent’s motion. The district court found

the use of force was objectively reasonable and wrote,

“[a]pplying the Graham factors, the Court finds that

Defendant’s conduct was not objectively unreasonable

under the circumstances.” The district court found that

all of the Graham factors weighed against Petitioner.

(App. 1-App. 15).

Then the district court found that Petitioner did

not meet “his ‘heavy’ and ‘demanding’ burden of showing that Defendant’s use of force violated a clearly established right.” Petitioner relied on seven cases: Bush,

Cooper, Newman, Trammel, Hanks, Deville, and

Hope—all published cases from the Fifth Circuit (except for Hope which comes from this Court)—to show

that the law was “clearly established.” The district

court found that none of these seven cases applied to

the facts of this case by making inapt distinctions. Indeed, the district court hardly addressed the seven

cases and only wrote:

Plaintiff points to several cases for the general proposition that it was clearly established that taking a suspect down to the

9

ground when the suspect is not actively resisting arrest constitutes excessive use of force.

See Resp. Br. 16-21. But those cases are not

sufficiently analogous to the facts at issue,

and “[i]t is the plaintiff ’s burden to find a case

in his favor that does not define the law at a

‘high level of generality.’ ’’ Vann v. City of

Southaven, 884 F.3d 307, 310 (5th Cir. 2018).

In Darden v. City of Fort Worth, the plaintiff

was thrown to the ground, tased twice,

choked, punched and kicked in the face,

pushed into a face-down position, and had his

face pressed into the ground and his hands

pulled behind his back to be handcuffed. See

880 F.3d 722, 725 (5th Cir. 2018). In Newman,

the plaintiff was struck by a baton ‘thirteen

times in about nine seconds’ and was tased

multiple times. 703 F.3d at 760. And Cooper

involved ‘a lengthy dog attack.’ 844 F.3d at

523. These cases involved much greater uses

of force than the present case. The plaintiffs

in Trammell, Hanks, and Deville committed

less severe offenses than Plaintiff. In Trammell, the officer was arresting plaintiff for

public intoxication, ‘a Class C misdemeanor

and thus . . . a minor offense.’ 868 F.3d at

340. And in both Hanks and Deville, the plaintiffs were stopped for committing a minor

traffic offense. See 853 F.3d at 748; 567 F.3d at

167. Finally, in Bush the officer ‘forcefully

slammed [the plaintiff ]’s face into a vehicle

when [the plaintiff ] was handcuffed and subdued.’ 513 F.3d at 501. Here, Plaintiff was

not yet handcuffed or subdued. This distinction is important because an officer cannot

10

reasonably use as much force when the suspect is handcuffed. See, e.g., Carroll v. Ellington, 800 F.3d 154, 177 (5th Cir. 2015) (“[O]nce

a suspect has been handcuffed and subdued,

and is no longer resisting arrest, an officer’s

subsequent use of force is excessive.”).

In light of the requirement that clearly established law be particularized to the facts at issue and Plaintiff ’s failure to identify such law,

Defendant is entitled to qualified immunity.

See Batyukova v. Doege, 994 F.3d 717, 729 (5th

Cir. 2021) (affirming grant of summary judgment where plaintiff “failed to identify clearly

established law”).

The district court granted qualified immunity and

Petitioner appealed.

On appeal, the Fifth Circuit found that the Graham factors allowed the use of force. Ramirez, 2022 WL

16548053. In large part, this reasoning turned on Salazar. The Fifth Circuit explained in part:

Turning to the second Graham factor, Ramirez

argues that no jury could reasonably believe

he posed a threat to the officers’ safety, because, when Martin used force, he had already

surrendered, was compliant, and was on his

knees. But we cannot ignore a suspect’s actions that immediately “preceded the surrender.” Salazar v. Molina, 37 F.4th 278, 282 (5th

Cir. 2022). Such actions are pertinent because

an officer need not take a suspect’s compliance

at face value after the suspect just tried

evading custody. See ibid. (concluding

11

officers may reasonably question the sincerity of a suspect’s surrender who previously

tried evading police). Thus, in Salazar v. Molina, we granted qualified immunity to an officer who tased a suspect who was already

lying prone on the ground, because the “previously noncompliant suspect” still posed a

threat to officers. Id. at 283. We stated that

“despite the appearance of an unambiguous

surrender,” the “relevant inquiry is whether”

a reasonable officer would “doubt the suspect’s compliance and still perceive a threat.”

Ibid. (cleaned up).

Petitioner asks this Court to grant review to decide whether the Fourth Amendment allows for a determination on the use of force to turn on actions that

preceded the immediate moment in which the officers

used force. The Fifth Circuit truncated the Graham

analysis by holding that flight justifies the use of force.

The Fifth Circuit’s analysis is contrary to this Court’s

opinion in Graham, contradicts the “reasonableness”

analysis of the Fourth Amendment, and the ruling has

profound implications for the day-to-day interactions

of citizens and police.

---------------------------------♦---------------------------------

12

REASON TO GRANT THE PETITION

I.

Salazar’s Emphasis on Flight Abandon’s

Decades of Precedent. This Court’s Precedent Requires District and Appellate Courts

to Look to the Reasonableness of the

Search or Seizure. Salazar Looks Only or

Predominately to Whether the Arrestee

Fled and Reasons from the Fact.

The application of Salazar violates the Fourth

Amendment. The Fourth Amendment is defined by

“reasonableness.” Carpenter v. United States, ___ U.S.

___, 138 S. Ct. 2206, 2221, 201 L. Ed. 2d 507 (2018) (applying reasonableness to search). In Terry, this Court

explained:

there is no ready test for determining reasonableness other than by balancing the need to

search (or seize) against the invasion which

the search (or seizure) entails. And in justifying the particular intrusion the police officer

must be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth

Amendment becomes meaningful only when

it is assured that at some point the conduct of

those charged with enforcing the laws can be

subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in

light of the particular circumstances. And in

making that assessment it is imperative that

the facts be judged against an objective standard: would the facts available to the officer at

13

the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief ’

that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on

nothing more substantial than inarticulate

hunches, a result this Court has consistently

refused to sanction. (cleaned up).

Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1879–

80, 20 L. Ed. 2d 889 (1968).

The Fifth Circuit’s opinion, resting on Salazar,

abandons the “reasonableness” determination that is

the foundation of the Fourth Amendment and looks

only or predominately to whether the citizen fled or attempted to flee the police. If the citizen fled or failed to

obey the police, then the citizen can no longer surrender.

Consider the application of Salazar to a modified

set of facts from Graham. In Graham, the suspect/plaintiff suffered a diabetic crisis. Graham, 490

U.S. at 388. A friend went into a store to get orange

juice but the line was too long. Id. The friend left the

orange juice and tried to take Graham to a private

home. Id. A police officer saw Graham’s friend enter

and leave the store quickly, followed the car Graham

was in, and eventually made a “investigative stop.” Id.

at 389. The driver of the car Graham was in stopped

promptly. When the car stopped, “Graham got out of

the car, ran around it twice, and finally sat down on the

curb, where he passed out briefly.” Id. Assume, instead

of running around the car, Graham ran from the car

14

and then passed out. Under these hypothetical facts,

the reasoning from Salazar would have justified the

use of “intermediate force” (such as a dog or a taser) on

Graham who was incapacitated due to a diabetic emergency. Specifically, by getting out of the car and running from it (under the hypothetical facts), the police

could have inferred Graham was fleeing and that his

surrender in the form of passing out due to a diabetic

episode justified the use of a dog, a taser, or some other

form of “intermediate force” as long as some officer assumed that the surrender was not genuine.

Also consider the possibility that a suspect with a

warrant for a hot check (a non-violent misdemeanor)

fled the police and escaped. But sometime later—a

week, a month, or six months—the suspect tried to renew his driver’s license at the police station and the

clerk received an alert for the warrant. Then the dutiful clerk alerted a nearby officer and the nearby officer

was aware that Petitioner had fled previously. Assume

further the officer is a canine officer and he had his

dog. Assuming the suspect did not attempt to flee, immediately surrendered, and was compliant with police

instructions, would the use (or as in Salazar the immediate use) of the dog or a taser on the suspect be constitutionally permissible simply because the officer

assumed the suspect was surrendering in an effort to

lure the officer closer and then to attack? Plainly the

answer must be “no,” but under the reasoning from

Salazar, the use of the dog (or other “intermediate

force”) on this suspect would be permissible.

15

These examples illustrate that the use of force

must turn on the totality of the circumstances an officer faces and not an unsubstantiated assumption

stemming from a prior flight.

Flight deserves to be a factor in determining

whether the use of force is necessary. But this determination must look to the entirety of the circumstances then facing the police officer and not merely

one factor that occurred in the past. Graham, 490 U.S.

at 396. (“[T]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical application”). Instead the question must be

whether the circumstances facing the police officer justify the use of force (“intermediate” or otherwise). The

question cannot be: Did the suspect flee in the past?

---------------------------------♦---------------------------------

16

CONCLUSION

Petitioner asks this court to grant this petition for

a writ of certiorari.

Respectfully submitted,

NILES ILLICH

Counsel of Record

SCOTT H. PALMER

JAMES ROBERTS

SCOTT H. PALMER, P.C.

15455 Dallas Parkway, Suite 540

Addison, Texas 75001

(972) 204-5452

Niles@scottpalmerlaw.com

Scott@scottpalmerlaw.com

James@scottpalmerlaw.com

April 12, 2023