Amicus Curiae Brief — Cornelius L. Emily, et al., Petitioners v. Christopher Welters

No. 22-1005

In the

Supreme Court of the United States

OFFICER CORNELIUS L. EMILY, in his individual

and official capacities; and OFFICER ERNEST

RHONEY, in his individual and official capacities,

v.

Petitioner,

CHRISTOPHER WELTERS,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Minnesota

BRIEF OF AMICI CURIAE ASSOCIATION OF

MINNESOTA COUNTIES, MINNESOTA

SHERIFFS’ ASSOCIATION, AND MINNESOTA

COUNTY ATTORNEYS ASSOCIATION

IN SUPPORT OF PETITIONER

VICKI A. HRUBY

Counsel of Record

JARDINE, LOGAN & O’BRIEN, PLLP

8519 Eagle Point Blvd, Suite 100

Lake Elmo, MN 55042

(651) 290-6500

vhruby@jlolaw.com

Counsel for Amicus Curiae Association of

Minnesota Counties

JOHN J. CHOI

RAMSEY COUNTY ATTORNEY

ROBERT B. ROCHE

(counsel of record)

REBECCA KRYSTOSEK

Assistant Ramsey County Attorneys

121 Seventh Place East, Suite 4500

St. Paul, MN 55101

(651) 266-3230

robert.roche@co.ramsey.mn.us

rebecca.krystosek@co.ramsey.mn.us

Counsel for Amicus Curiae

Minnesota County Attorneys

Association

RICHARD D. HODSDON

Minnesota Sheriffs’ Association

100 Empire Drive, Suite 222

St. Paul, MN 55103

(651) 491-5900

rick_hodsdon@yahoo.com

Attorney for Amicus Curiae

i

TABLE OF CONTENTS

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

INTERESTS OF THE AMICI CURIAE .................. 1

SUMMARY OF ARGUMENT .................................. 3

ARGUMENT ............................................................. 5

I.

The Minnesota Supreme Court’s Incorrect

Characterization of the Use of Restraints in

Medical Transports and Appointments as

“Routine Conduct” Puts Officers, Medical

Professionals, and the Public at Risk of

Physical Harm ................................................. 5

II.

The Minnesota Supreme Court’s Decision

Ignores This Court’s Requirement That

Clearly Established Law Must Not Be

Defined at a High Level of Generality............ 8

A. The Minnesota Supreme Court Lacks the

Authority to Alter This Court’s Qualified

Immunity Analytical Framework. ........... 10

B. The Minnesota Supreme Court’s

Clearly Established Law Analysis Is

Contrary to This Court's Precedents. ...... 11

C. The Officers’ Use of Restraints Did Not

Violate Clearly Established Law .............. 14

1.

Hope v. Pelzer Did Not Establish a

"Less Particularity" Standard for

"Routine Conduct" ............................. 15

ii

2.

III.

The Minnesota Supreme Court

Wrongfully Defined Clearly

Established Law at a High Level of

Generality .......................................... 20

The Welters Decision Undermines

Governmental Operations by Providing

Little or No Guidance Concerning the

Application of Qualified Immunity in

Minnesota. ..................................................... 24

CONCLUSION ....................................................... 26

iii

TABLE OF AUTHORITIES

CASES

Arizona v. Evans,

514 U.S. 1 (1995)................................................ 10

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)......................................... 9, 14

Beaulieu v. Ludeman,

690 F.3d 1017 (8th Cir. 2012) ............................ 22

City and County of San Francisco v. Sheehan,

575 U.S. 600 (2015)............................................. 11

City of Tahlequah v. Bond,

142 S. Ct. 9 (2021)............................................. 8, 9

Cunningham v. Castloo,

983 F.3d 185 (5th Cir. 2020)............................... 13

District of Columbia v. Wesby,

138 S. Ct. 577 (2018)......................... 14, 21, 23, 24

Frazier v. United States,

339 F.2d 745 (D.C. Cir. 1964) ............................... 5

Fulford v. King,

692 F.2d 11 (5th Cir. 1982)................................... 6

Gates v. Collier,

501 F.2d 1291 (5th Cir. 1974)....................... 17, 19

Hamner v. Burls,

937 F.3d 1171 (8th Cir. 2019)............................. 13

iv

Harlow v. Fitzgerald,

457 U.S. 800 (1982)....................................... 12, 25

Hope v. Pelzer, 536 U.S. 730

(2002)....... 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24

Jackson v. City of Cleveland,

64 F.4th 736 (6th Cir. 2023) ............................... 13

Kingsley v. Hendrickson,

576 U.S. 389 (2015)........................................... 5, 6

Kisela v. Hughes,

138 S. Ct. 1148 (2018).......................................... 9

Lane v. Franks,

Lesier 228 (2014) ................................................ 12

Leiser v. Moore,

903 F.3d 1137 (10th Cir. 2018)........................... 13

Malley v. Briggs,

475 U.S. 335 (1986)............................................. 14

McDeid v. Johnston,

984 N.W.2d 864 (Minn. 2023) .............................. 9

Minnesota v. Nat’l Tea Co.,

309 U.S. 551 (1940)............................................. 10

Moody v. Proctor,

986 F.2d 239 (8th Cir. 1993)........................... 6, 23

Mova v. Zook,

821 F.3d 517 (4th Cir. 2016)................................. 5

Mullenix v. Luna,

577 US 7 (2015)................................................... 24

v

Nelson v. Correctional Medical Services,

583 F.3d 522 (8th Cir. 2009)............. 20, 22, 23, 24

Ort v. White,

813 F.2d 318 (11th Cir. 1987)................. 17, 18, 19

Peoples v. Leon,

63 F.4th 132 (2d Cir. 2023)................................. 12

Radwan v. Manuel,

55 F.4th 101 (2d Cir. 2022)................................. 13

Reichle v. Howards,

566 U.S. 658 (2012)............................................. 12

Reynolds v. Dormire,

636 F.3d 976 (8th Cir. 2011)......................... 22, 23

Riley’s Am. Heritage Farms v. Elsasser,

29 F.4th 484 (9th Cir. 2022) ............................... 13

Rivas-Villegas v. Cortesluna,

142 S. Ct. 4 (2021)................................................. 9

Siddique v. Laliberte,

972 F.3d 898 (7th Cir. 2020)............................... 13

Stewart v. Wexford Health Sources, Inc.,

14 F.4th 757 (7th Cir. 2021) ............................... 23

Thielman v. Leean,

282 F.3d 478 (7th Cir. 2002)................................. 6

United States v. Cluck,

542 F.2d 728 (8th Cir. 1976)................................. 5

United States v. Evans,

159 F.3d 908 (4th Cir. 1998)................................. 5

vi

United States v. Schaffer,

664 F.2d 824 (11th Cir. 1981)........................... 5, 6

Weiland v. Loomis,

938 F.3d 917 (7th Cir. 2019)................................. 6

Weimer v. County of Fayette,

972 F.3d 177 (3d Cir. 2020) ................................ 13

Welters v. Minnesota Department of

Corrections, 982 N.W.2d 457

(Minn. 2022) ............................................ 3, 7, 9, 24

White v. Pauly,

580 U.S. 73 (2017).................. 9, 11, 13, 19, 20, 23

Whitley v. Albers,

475 U.S. 312 (1986)......................................... 8, 16

Wilson v. Layne,

526 U.S. 603 (1999)............................................. 12

Ziglar v. Abbasi,

582 U.S. 120 (2017)............................................. 12

RULES

Supreme Court Rule 37 ............................................ 1

1

INTERESTS OF THE AMICI CURIAE1

The Association of Minnesota Counties

(“AMC”) is a Minnesota-based, non-partisan,

statewide organization comprised of officials from

Minnesota’s 87 counties. AMC strives to ensure that

Minnesota counties provide efficient, effective, and

high-quality governance. AMC provides educational

programs, training, research, and communications to

county officials in Minnesota. AMC promotes and

advances the interests of Minnesota counties in

obtaining appropriate responses to issues from state

and federal executive and legislative branches to

foster and encourage innovative and responsive

county service delivery, policy decisions, and public

resources utilization. AMC works closely with

legislative, administrative, and judicial branches of

government

on

issues

involving

adoption,

enforcement, and modification of laws and policies

that affect Minnesota’s counties. AMC represents the

position of Minnesota’s counties before state and

federal governmental agencies and the public.

The Minnesota County Attorneys Association

(“MCAA”) is an independent, voluntary organization

of County Attorneys dedicated to improving the

quality of justice in the State of Minnesota. The

MCAA represents all 87 of Minnesota’s County

Attorneys. The MCAA is dedicated to improving the

quality of justice in the State of Minnesota by, among

1 Pursuant to

Supreme Court Rule 37, all parties were timely

notified of the filing of this brief. Counsel for Amici state that no

counsel for a party authored this brief in whole or in part and

represent that the Minnesota Counties Intergovernmental Trust

(MCIT) is the only entity that has made a monetary contribution

to the preparation or submission of this brief.

2

other things, “developing consensus on legal and

public policy issues of statewide significance to

County

Attorneys.”

MCAA’s

members

are

experienced federal civil rights litigators who

routinely represent local officials in state and federal

court cases involving qualified immunity.

The Minnesota Sheriff’s Association (“MSA”) is

the longest existing association in the State of

Minnesota for law-enforcement professionals. The

organization was founded over 125 years ago to

advance the interests of the Office of the Sheriff and

to promote public safety and professionalization of

law enforcement. In Minnesota, the Office of the

Sheriff predates Minnesota’s statehood and has a

long history of serving as the chief and primary lawenforcement officer at the county level. Sheriffs are

the primary local agency responsible for the custody

and transportation of prisoners. Sheriffs are

mandated by statute and constitutional requirements

to provide safe and secure jails, courts, and custody

operations. The MSA is a 501(c)(3) nonprofit

corporation whose voting membership is the 87

elected sheriffs of the counties of Minnesota. The

MSA includes thousands of members of the staff of

the Office of Sheriff throughout the State of

Minnesota. A primary goal of the MSA is to continue

to advance the professional practices, image, and

reputation of law enforcement and, specifically,

sheriff staff employees throughout the State.

AMC, MCAA, and MSA are submitting this

amici curiae brief because the Minnesota Supreme

Court’s decision not only undermines binding United

States Supreme Court precedent, but also endangers

public safety, officer safety, and safety of prisoners by

3

questioning law enforcement officers’ ability to take

necessary actions to safeguard the public and

themselves when transporting and accompanying

inmates

during

medical

appointments

and

procedures. Amici have an important perspective on

these public policy concerns and why this Court

should grant certiorari.

SUMMARY OF ARGUMENT

Amici are familiar with the Petition filed by

Officers Cornelius L. Emily and Ernest Rhoney and

do not seek to duplicate the Petition’s arguments.

Rather, Amici wish to emphasize the exceptional

public importance of the questions presented by the

Petition for public officials in the State of Minnesota.

Since Amici represent the interests of county

government, county law enforcement and the

attorneys who represent them, Amici provide this

Court with a valuable perspective into the

implications of the Minnesota Supreme Court’s

Opinion in Welters v. Minnesota Department of

Corrections, A20-1481, 982 N.W.2d 457 (Minn. 2022).

Welters, if permitted to stand, will undermine the

availability of qualified immunity for a wide range of

public officials in the State of Minnesota and

exponentially increase the dangers posed to

correctional officers, medical professionals, and the

public during inmate transport and medical

appointments. Given the significant ramifications of

the Minnesota Supreme Court’s Opinion, Amici

respectfully submit this brief in support of

Petitioners’ Petition for Writ of Certiorari.

4

Despite a myriad of recent United States

Supreme Court decisions emphasizing the crucial role

of qualified immunity, contrary to those decisions, the

Minnesota

Supreme

Court

defined

“clearly

established law” at a high level of generality. In fact,

in direct contravention of this Court’s clear

mandates, the Minnesota Supreme Court held that

when correctional officers are engaged in “routine

conduct that does not require quick decision-making,”

clearly established law can be defined with “less

particularity.” App. 42-43. In doing so, the court

minimized the potential danger to correctional

officers, medical professionals, and the public.

Further, in defining “clearly established law,” the

Minnesota Supreme Court failed to: (1) identify U.S.

Supreme Court precedent that sets forth its

articulated “less particularized” rule for “routine

conduct”; (2) focus on the specific facts of this case;

and (3) recognize that Officers Emily and Rhoney’s

conduct under these specific circumstances had not

previously been adjudicated as unconstitutional. In

doing so, the Minnesota Supreme Court improperly

denied qualified immunity.

The decision below effectively eliminates a

widely-practiced safety technique by the use of

restraints

during

medical

transport

and

appointments. Put simply, denying officers the ability

to place inmates in restraints for medical transport

and appointments will put lives in danger. Further,

the rule articulated by the Minnesota Supreme Court

provides governmental actors in Minnesota with no

direction as to what constitutes “routine conduct” and

impermissibly introduces a timing element into the

availability of qualified immunity. This Court’s

review is required in order to provide clear direction

5

as to applicability of qualified immunity in such

circumstances.

ARGUMENT

I.

The Minnesota Supreme Court’s Incorrect

Characterization of the Use of Restraints

in Medical Transports and Appointments

as “Routine Conduct” Puts Officers,

Medical Professionals, and the Public at

Risk of Physical Harm.

This Court has recognized that “‘[r]unning a

prison is an inordinately difficult undertaking’ and

that ‘safety and order at these institutions requires

the expertise of correctional officials, who must have

substantial discretion to devise reasonable solutions

to the problems they face.” Kingsley v. Hendrickson,

576 U.S. 389, 399 (2015) (internal citations omitted).

Lower courts have acknowledged that

transporting and accompanying inmates to medical

appointments presents an officer and public safety

risk due to the risk of escape. See, e.g., United States

v. Cluck, 542 F.2d 728 (8th Cir. 1976) (escape from a

medical facility); United States v. Evans, 159 F.3d

908 (4th Cir. 1998) (same); Frazier v. United States,

339 F.2d 745 (D.C. Cir. 1964) (same). Likewise, the

risk of assault on officers, hospital security, and

medical personnel exists when an inmate is

transported and attends medical appointments. See,

e.g., Mova v. Zook, 821 F.3d 517, 521-22 (4th Cir.

2016) (discussing assault on deputy, murder of

hospital security and officer during prisoner escape

from hospital); United States v. Schaffer, 664 F.2d

824, 825 (11th Cir. 1981) (addressing attempted

6

escape after striking security officer in face with a

metal object during the reshackling of an inmate in a

hospital).

Due to these real, documented risks to officer

and public safety, many correctional institutions have

adopted policies permitting the use of restraints

during medical transports and appointments. See,

e.g., Moody v. Proctor, 986 F.2d 239, 241-42 (8th Cir.

1993) (policy requiring use of black box during

medical

transports

and

appointments

“is

penologically justified ‘by the greater risk of escape …

and the reduced number of guards’” needed for

transport) (quoting Fulford v. King, 692 F.2d 11, 14

(5th Cir. 1982)); Thielman v. Leean, 282 F.3d 478,

480, 484 (7th Cir. 2002) (use of black box during

medical transport).

The Minnesota Supreme Court summarily

rejected officer safety concerns, impermissibly

substituting its judgment for the “expertise of

corrections officials,” Kingsley, 576 U.S. at 399, when

it characterized prophylactic use of handcuffs during

medical transports and procedures as “routine” and

questioned this practice. App. 26, 41, 43. Further, the

court’s suggestion that correctional officers are

“required” to “adjust handcuffs” if an inmate

complains of “pain” during medical transport and

procedures

ignores

legitimate

penological

considerations behind the use of restraints, which are

designed to protect officers, medical professionals,

and the public. Compare App. 41 with Schaffer, 664

F.2d at 825 (discussing injuries sustained during an

escape attempt at a hospital during the reshackling

process); Weiland v. Loomis, 938 F.3d 917, 918 (7th

Cir. 2019) (inmate who had his restraints temporarily

7

removed, grabbed an officer’s gun, escaped, and

“terroriz[ed] the Hospital’s staff, patients, and

visitors.”).

Most counties in the State of Minnesota

operate a county jail. Each of the counties operating a

jail must transport inmates for medical care, some

traveling hours to transport inmates to an

appropriate medical facility. Further, medical

transports

conducted

by

counties

may

be

accomplished by a single deputy, who is responsible

for—not only the safe transport and guarding the

inmate during the procedure—but public safety

during medical transports and procedures as well.

Unlike the medical procedure in Welters that was

completed at Minnesota Correctional Facility-Oak

Park Heights (MCF-OPH), counties regularly

transport inmates to medical facilities that are

utilized by members of the general public.

Due to public and officer safety considerations,

including minimizing the risk of escape, counties

often require inmates to be transported in restraints,

including handcuffs, belly-chains, and/or shackles.

Further, county law enforcement personnel are

routinely required to accompany inmates during

medical treatment to ensure the safety of medical

personnel and members of the public. One avenue

available to law enforcement personnel to protect

public safety is the continued use of restraints.

The Minnesota Supreme Court’s Opinion calls

into question this practice, downplaying the

legitimate penological considerations associated with

using restraints during medical transports and

procedures. See App. 26, 41-43. The court’s analysis

8

substitutes its judgment in place of correctional

officials’ discretion in deciding to restrain an inmate

for medical transport and procedures to protect the

public, officer, and inmate safety and guard against

escape. Further, there is a real and substantial risk

that the Minnesota Supreme Court’s sweeping

language will be improperly used to undermine

officers’ discretion in restraining inmates (including

the method of restraints) during transport to

hospitals/clinics as well as during medical

procedures. Such Monday-morning quarterbacking is

contrary to this Court’s longstanding precedent and

the purpose of qualified immunity. See Whitley v.

Albers, 475 U.S. 312, 320 (1986) (discussing

“appropriate hesitancy to critique in hindsight”

prison officials’ decisions).

The practical ramifications of the Minnesota

Supreme Court’s decision are staggering. By calling

into question the use of restraints during medical

transports and procedures, the court left officers with

almost no options to protect their and the public’s

safety. This increases the risk of escape and injury.

The Minnesota Supreme Court’s opinion ignores

these potentially life-threatening realities facing

correctional

officers

when

transporting

and

accompanying inmates to medical appointments.

II.

The Minnesota Supreme Court’s Decision

Ignores This Court’s Requirement That

Clearly Established Law Must Not Be

Defined at a High Level of Generality.

This Court has “repeatedly told courts not to

define clearly established law at too high of a level of

generality.” City of Tahlequah v. Bond, 142 S. Ct. 9,

9

11 (2021); White v. Pauly, 580 U.S. 73, 79 (2017);

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). In fact,

in this Court’s recent terms, it has admonished lower

courts for failing to “particularize” clearly established

law “to the facts of the case.” White, 580 U.S. at 79

(reversing denial of qualified immunity where lower

court “misunderstood the ‘clearly established’

analysis” and “failed to identify a case where an

officer acting under similarly circumstances … was

held to have violated” a constitutional right); RivasVillegas v. Cortesluna, 142 S. Ct. 4, 9 (2021) (same);

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (same);

City of Tahlequah, 142 S. Ct. at 11 (same).

Despite this Court’s repeated “reiterat[ion]” of

the “longstanding principle that ‘clearly established

law’ should not be defined ‘at a high level of

generality,’” White, 580 U.S. at 79, the Minnesota

Supreme Court not only defined clearly established

law at a high level of generality, it specifically held

that “less particularity is required to provide fair

warning of the unconstitutionality of the officer’s

actions” outside of the Fourth Amendment context

because officials are not confronted with the need to

make “quick” decisions. App. 42-43 (emphasis added).

The Minnesota Supreme Court’s qualified

immunity analysis impermissibly introduces a timing

element that is utterly unsupported by this Court’s

case law. Since entering its Order in Welters, the

Minnesota Supreme Court has applied its less

particularity analysis to strip state officials of

qualified immunity. See McDeid v. Johnston, 984

N.W.2d 864, 874, 879 (Minn. 2023). The continued

extension of this erroneous element provides strong

10

proof as to why this Court needs to halt the spread of

this mistaken standard.

A.

The Minnesota Supreme Court

Lacks the Authority to Alter This

Court’s

Qualified

Immunity

Analytical Framework.

This Court has unambiguously explained that

state courts, interpreting the United States

Constitution, “are not free from the final authority of

this Court.” Arizona v. Evans, 514 U.S. 1, 8-9 (1995)

(emphasis in original). This Court recognizes its

“authority as final arbiter of the United States

Constitution could be eroded by a lack of clarity in

state-court decisions.” Id. at 9 (citing Minnesota v.

Nat’l Tea Co., 309 U.S. 551, 557 (1940) (it is

“important that ambiguous or obscure adjudications

by state courts do not stand as barriers to a

determination by this Court of the validity under the

federal constitution of state action.”)). In fact, this

Court strives to “eliminat[e] … the obscurities and

ambiguities from the opinions in such cases.” Id.

As set forth in the Petition for Certiorari, the

Minnesota Supreme Court failed to apply this Court’s

qualified immunity framework by admittedly

defining clearly established law with “less

particularity.” The failure to apply this Court’s

clearly established law analysis “erodes” the clarity of

this Court’s qualified immunity jurisprudence, id.,

and is anticipated to lead to anomalous outcomes for

identical United States Constitutional claims when

filed in Minnesota state courts instead of federal

courts. This may lead to forum shopping and

undermine the certainty afforded by federal court

11

decisions on issues of United States Constitutional

interpretation, leading to widespread confusion

regarding the status of clearly established law in

Minnesota.

As discussed in greater detail below, the

Minnesota Supreme Court’s clearly established law

analysis improperly interjects a timing element into

qualified immunity. App. 43. Thus, parties pursuing

United States Constitutional claims in Minnesota

now must litigate whether the governmental conduct

at issue “require[d] quick decision-making,”

necessitating

clearly established law that is

particularized to the facts of the case, or “routine

conduct” where “less particularity” is required. See

App. 42-43. The interjection of timing into this

Court’s qualified immunity jurisprudence to justify

“less particularity” in defining “clearly established

law” improperly undermines the doctrine of qualified

immunity, which this Court has repeatedly

characterized as “important to society as a whole.”

White, 580 U.S. at 79 (quoting City and County of

San Francisco v. Sheehan, 575 U.S. 600, 611 n.3

(2015)). Accordingly, this Court should grant

certiorari and reverse the Minnesota Supreme

Court’s rule that “less particularity is required to

clearly establish what the constitution requires”

when engaging in “routine conduct.”

B.

The Minnesota Supreme Court’s

Clearly Established Law Analysis Is

Contrary to this Court's Precedents.

The Minnesota Supreme Court’s new fair

notice rule that depends on the court’s perception

12

about the time an official has to make a decision is

clearly contrary to this Court’s case law.

First, contrary to the Minnesota Supreme

Court’s assertion, the requirement that clearly

established law be “particularized” so that “the

contours of the right are clear to a reasonable official”

is not limited to Fourth Amendment claims. See, e.g.,

Reichle v. Howards, 566 U.S. 658, 655 (2012) (First

Amendment retaliation); Ziglar v. Abbasi, 582 U.S.

120, 154-55 (2017) (conspiracy); see also Peoples v.

Leon, 63 F.4th 132 (2d Cir. 2023) (First and

Fourteenth Amendment claims arising out of

conditions of parole).

Second, this Court has applied qualified

immunity where ample time was available for

officials to make the relevant decision. See Harlow v.

Fitzgerald, 457 U.S. 800, 802-04 (1982) (qualified

immunity applied to public employment decision

made over the course of several months); Wilson v.

Layne, 526 U.S. 603, 614-15 (1999) (qualified

immunity barred claims arising out of decision to

bring media observers to execution of a search

warrant in a home); Lane v. Franks, 573 U.S. 228,

243-44 (2014) (applying qualified immunity to

decision to lay off employee two months after

employee testified before a grand jury); Ziglar v.

Abbasi, 582 U.S. 120, 155 (2017) (qualified immunity

barred claims arising out of policies permitting

prolonged detention of immigrants).

Similarly, qualified immunity decisions of

United States Circuit Courts of Appeal belie the

Minnesota Supreme Court’s fair notice rule as

qualified immunity is routinely applied to decisions

13

that do not involve “quick decision-making.” In fact,

the particularity requirements this Court reiterated

in White v. Pauly have been consistently applied by

United States Circuit Courts of Appeal without

regard to the time available to make the allegedly

unconstitutional decision. See, e.g., Hamner v. Burls,

937 F.3d 1171, 1179 (8th Cir. 2019) (conditions of

confinement claim arising out of decision to place

mentally ill prisoner in administrative segregation

for 203 days without procedural avenue to challenge

classification); Radwan v. Manuel, 55 F.4th 101, 129

(2d Cir. 2022) (decision to terminate athletic

scholarship); Weimer v. County of Fayette, 972 F.3d

177, 190-92 (3d Cir. 2020) (prosecutor’s failure to

intervene in unconstitutional investigation that

occurred over the course of years); Cunningham v.

Castloo, 983 F.3d 185, 193-94 (5th Cir. 2020) (failure

to provide name-clearing hearing before terminating

public employee); Jackson v. City of Cleveland, 64

F.4th 736 (6th Cir. 2023) (redaction of exculpatory

material from investigative file in response to publicrecords request); Siddique v. Laliberte, 972 F.3d 898,

903-04 (7th Cir. 2020) (rejection of plaintiff’s

application to a public board); Riley’s Am. Heritage

Farms v. Elsasser, 29 F.4th 484, 505-06 (9th Cir.

2022) (termination of business relationship following

shareholder’s controversial tweets); Leiser v. Moore,

903 F.3d 1137, 1140, 1144 (10th Cir. 2018) (disclosure

of inmate’s medical information). In each of these

decisions, the court considered whether the official

had a reasonable basis to believe the official’s conduct

violated clearly established law rather than the time

available to make the allegedly unconstitutional

decision.

14

In sum, the Minnesota Supreme Court’s

decision to interject the element of timing into the

qualified immunity analysis is contrary to this

Court’s precedents.

C.

The Officers’ Use of Restraints Did

Not Violate Clearly Established

Law.

A clearly established right is one that is

“sufficiently clear that every reasonable official would

have understood that what he is doing violates that

right.” al-Kidd, 563 U.S. at 741 (emphasis added). “In

other words, existing law must have placed the

constitutionality of the officer’s conduct ‘beyond

debate.’” District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018). This Court repeatedly observed that

“[t]his demanding standard protects ‘all but the

plainly incompetent or those who knowingly violate

the law.’” Id. (quoting Malley v. Briggs, 475 U.S. 335,

341 (1986)).

While Amici acknowledge there does not have

to be a case directly on point to clearly establish a

constitutional principle, “existing precedent must

place the lawfulness of the particular [conduct]

beyond debate.” Id. at 590 (internal quotations

omitted). Thus, the standard is not whether clearly

established law supported an officer’s conduct,

rather it is whether an officer’s conduct was

prohibited by clearly established law.

15

1.

Hope v. Pelzer Did Not Establish a “Less

Particularity” Standard for “Routine

Conduct”.

The Minnesota Supreme Court misapplied this

Court’s precedent by reading a “less particularity”

exception into Hope v. Pelzer, 536 U.S. 730 (2002)

where none is found. In Hope, this Court addressed

whether prison guards violated clearly established

law when, following an inmate’s altercation with a

guard, they placed the inmate, Larry Hope, in leg

irons and handcuffs, forced him to remove his shirt

and handcuffed him to a hitching post in the hot sun

for seven hours on a summer day. See id. at 734–35.

During the seven hours that the inmate was attached

to the hitching post, Hope was sunburned, was

afforded no bathroom breaks, and was given water

only once or twice. Id. at 734–35. A guard taunted

Hope about his thirst and “‘first gave water to some

dogs, then brought the water cooler to [Hope],

removed its lid, and kicked the cooler over, spilling

the water onto the ground.’” Id. at 735.

This Court further observed:

Despite the clear lack of an emergency

situation, the respondents knowingly

subjected him to a substantial risk of

physical harm, to unnecessary pain

caused by the handcuffs and the

restricted position of confinement for a

7–hour period, to unnecessary exposure

to the heat of the sun, to prolonged

thirst and taunting, and to a deprivation

of bathroom breaks that created a risk of

particular discomfort and humiliation.

16

Id. at 738.

This Court made clear that although prior

cases need not be “materially similar” in order for the

law to be clearly established, “the salient question” a

court should ask “is whether the state of the law

[when the conduct at issue occurred] gave [the

officers] fair warning that … their alleged treatment

[of plaintiff] was unconstitutional.” Id. at 739, 741.

Simply stated, the question of whether the law is

clearly established is tethered to the issue of notice.

See id. at 740–41. In Hope, several facts supported

this Court’s conclusion that the prison guards

violated Hope’s clearly established rights and that

“[a] reasonable officer would have known that using a

hitching post as Hope alleged was unlawful.” Id. at

731.

First, this Court noted the “obvious cruelty

inherent in this practice should have provided …

some notice that their alleged conduct violated Hope’s

constitutional protection against cruel and unusual

punishment.” Id. at 745. Indeed, citing its prior

admonishment against the unnecessary and wanton

infliction of pain in Whitley v. Albers, the Court

stated that the violation was arguably “so obvious

that our own Eighth Amendment cases gave

respondents fair warning that their conduct violated

the Constitution.” Id. at 741.

Second, this Court reasoned that binding

Circuit precedent should have provided guards with

notice that their conduct was unconstitutional. Id. at

742–43. In reaching that conclusion, this Court

17

highlighted Gates v. Collier, a binding Fifth Circuit2

decision which “found several forms of corporal

punishment impermissible, including handcuffing

inmates to fences or cells for long periods” as well as

“forcing inmates to stand, sit or lie on crates, stumps,

or otherwise maintain awkward positions for

prolonged periods.” Hope, 536 U.S. at 731, 742

(emphasis added) (citing Gates v. Collier, 501 F.2d

1291, 1306 (5th Cir. 1974)). Important to the question

of notice, the unconstitutionality of the conduct

proscribed by Gates—and the fact that it was clearly

established for the purposes of the conduct at issue in

Hope—did not turn on trivial factual differences in

past cases, such as where the inmates were

handcuffed. To the contrary, “‘[n]o reasonable officer

could have concluded that the constitutional holding

of Gates turned on the fact that inmates were

handcuffed to fences or the bars of cells, rather than a

specially designed bar designated for shackling.’”

Hope, 536 U.S. at 742 (quoting the U.S. government’s

brief as amicus curiae). Rather, in light of Gates, the

unconstitutionality of the guards’ conduct in

punishing Hope by handcuffing him to a hitching post

for a prolonged period of time “should have been

apparent.” Id. at 743.

Third, this Court found Ort v. White

instructive on the issue of notice because it warned

that “‘physical abuse directed at [a] prisoner after he

terminate[s] his resistance to authority would

constitute an

actionable

eighth amendment

violation.’” Id. (alterations in original) (quoting Ort v.

White, 813 F.2d 318, 324 (11th Cir. 1987)). On the

2 As the Supreme Court noted in Hope, “[c]ases decided by the

Court of Appeals for the Fifth Circuit before 1981 are binding

precedent in the Eleventh Circuit today.” Hope, 536 U.S. at 742.

18

question of notice, this Court acknowledged that

although the facts of Ort were “not identical” to those

at issue in Hope, the premise nevertheless “has clear

applicability in this case” because Hope was not

restrained until after he was willing to continue

work. Hope, 536 U.S. at 743. Consequently, Ort “gave

fair warning to respondents that their conduct

crossed the line of what is constitutionally

permissible.” Id.

A regulation promulgated by the Alabama

Department of Corrections was also “[r]elevant to the

question whether Ort provided fair warning to

respondents that their conduct violated the

Constitution.” Id. at 743–44. The regulation in

question authorized guards to use a hitching post

“when an inmate refuses to work or is otherwise

disruptive to a work squad” and required that an

inmate must be allowed to rejoin work as soon as he

tells an officer “that he is ready to go to work.” Id. at

744 (internal quotations omitted). This Court

observed the latter requirement was “frequently

ignored by corrections officers.” Id. Moreover, this

Court concluded that a course of conduct, suggesting

one of the requirements was a sham or that guards

“could ignore it with impunity,” offers “strong support

for the conclusion that they were fully aware of the

wrongful character of their conduct.” Id. This Court

also noted that guards did not follow the regulation’s

requirement that an activity log be completed for

every inmate subjected to the hitching post that

detailed responses to offers of water and bathroom

breaks at fifteen-minute intervals, and that such

offers were not made. Id.

19

Finally, in support of its conclusion that the

guards violated clearly established law and that “a

reasonable person would have known” of that

violation, this Court also highlighted a study by the

U.S. Department of Justice of the State of Alabama’s

use of hitching posts. Id. (internal quotations

omitted). The DOJ’s report concluded that Alabama’s

systematic use of hitching posts was improper

corporal punishment and advised the state

department of corrections to end its use to meet

constitutional requirements. Id. at 745. The Court

concluded, “reasonable officials in the [Alabama

Department of Corrections] should have realized that

the use of the hitching post under the circumstances

alleged by Hope violated the Eighth Amendment

prohibition against cruel and unusual punishment.”

Id.

As the Court’s reasoning in Hope makes clear,

the binding circuit precedent of Gates and Ort, as

well as the Alabama DOC regulation and the DOJ

report provided guards with ample notice that the

conduct at issue violated the Eighth Amendment. To

borrow a phrase from this Court’s more recent

opinions, existing precedent placed the constitutional

violation “beyond debate.” See e.g., White, 580 U.S. at

79. Although this Court stated “that officials can still

be on notice that their conduct violates established

law even in novel factual circumstances,” and that

cases need not involve precisely on-point facts for the

law to be clearly established, fair warning that the

conduct is unconstitutional is, however, required.

Hope, 536 U.S. at 741. Notably absent from this

Court’s analysis of the status of the law was any

indication that “less particularity” is permitted in

establishing fair warning because the allegedly

unconstitutional conduct was “routine.”

20

2.

The

Minnesota

Supreme

Court

Wrongfully Defined Clearly Established

Law at a High Level of Generality.

Without repeating the arguments and legal

analysis of Petitioners, Amici also wish to stress the

requirement that a case be identified “where an

officer acting under similar circumstances … was

held to have violated” the constitution and that a case

presenting “a unique set of facts and circumstances

… alone” should be “an important indication” that the

conduct did not violate a clearly established right.

White, 580 U.S. at 80 (emphasis added).

The Minnesota Supreme Court ignored this

Court’s precedents by relying upon cases arising out

of vastly different facts. See App. 39-47 (discussing

Hope v. Pelzer, 536 U.S. 730 (2002); Nelson v. Corr.

Med. Servs., 583 F.3d 522 (8th Cir. 2009). As outlined

above, the prison guards’ conduct in Hope was

entirely devoid of penological justification. Hope, 536

U.S. at 738. To the contrary, this Court concluded

that “[a]ny safety concerns had long since abated by

the time petitioner was handcuffed to the hitching

post because Hope had already been subdued,

handcuffed, placed in leg irons, and transported back

to the prison.” Id. at 737–738. Here, by contrast, the

record indicates no punitive purpose whatsoever and

instead indicates a purely penological purpose: to

ensure officer safety.3

The Minnesota Supreme Court summarily dismissed this

stated safety concern as the procedure was performed at a

medical facility housed in the prison. App. 26.

3

21

Further, the prison guards’ conduct in Hope

appeared wholly punitive in nature and designed to

inflict pain and humiliation, replete with cruel acts

such as forcing Hope to remove his shirt before

cuffing him to the hitching post in the sun on a

summer day, depriving him of the ability to use the

restroom, and taunting Hope, who was thirsty, by

kicking over the water cooler. 536 U.S. at 734–35.

Here, there are no allegations or inferences

whatsoever of wanton or purposeful infliction of pain

or humiliation. Nor does the record indicate any

intentionally cruel behavior, such as taunting.

Indeed, Welters acknowledges that Officer Rhoney

was not trying to hurt him. Doc. 43 at 60.

The Minnesota Supreme Court ignores the

material differences between this case and Hope. It

provides no analysis to support the analytical leap

between chaining a prisoner to a hitching post in a

position a guard knew subjected the prisoner to a

“substantial risk of physical harm” for punitive

purposes to transporting an inmate for a short

medical procedure and allowing the procedure to be

completed while the inmate was handcuffed.

Compare Hope, 536 U.S. at 738 with App. 41-47. Such

an analytical leap distorts the purpose of narrowly

defining clearly established law so that the “legal

principle … [is] clear enough that every reasonable

official would interpret it to establish the particular

rule that plaintiff seeks to apply.” Wesby, 138 S.Ct. at

589-90 (emphasis added); City of Tahlequah, 142

S.Ct.at 11.

Hope fails to provide such guidance to officers.

First, policies addressing medical transport and

procedures are not punitive in nature; rather, they

22

address institutional and public safety concerns.

Second, restraining an inmate for a full-day during

the course of medical transport and treatment has

been found constitutional after Hope. Reynolds v.

Dormire, 636 F.3d 976, 978-80 (8th Cir. 2011)

(holding “refus[ing] to remove his restraints during a

day-long journey … for a medical appointment” did

not violate the Eighth Amendment). Third, the use of

restraints during medical transports and procedures

does not involve the unnecessary exposure to

elements, “taunting” or “humiliation” considered by

the Court in Hope. Accordingly, the Minnesota

Supreme Court’s reliance upon Hope was misplaced

and misconstrues the contours of clearly established

law.

Similarly, the Minnesota Supreme Court’s

reliance on Nelson v. Correctional Medical Services,

583 F.3d 522 (8th Cir. 2009) is improper as use of

shackles during the final stages of labor does not

apply with “obvious clarity” to the use of restraints

more generally. App. 49-50; Nelson, 583 F.3d at 52530. While Nelson’s teachings apply to childbirth and

labor, it does not apply with “obvious clarity” to all

medical transports and procedures as subsequent

Eighth Circuit case law has endorsed the use of

restraints in these circumstances.

Two years after Nelson was decided, the Eighth

Circuit rejected an Eighth Amendment claim arising

out of officers’ “refus[al] to remove his restraints

during a day-long journey … for a medical

appointment.” Reynolds, 636 F.3d at 978-80; Beaulieu

v. Ludeman, 690 F.3d 1017, 1032-33 (8th Cir. 2012)

(rejecting constitutional challenge related to

transporting civilly committed persons in “full

23

restraints” including black box, wrist chain, and leg

irons, “for the safety of the public and staff and to

prevent escapes and attempted escapes.”); see also

Stewart v. Wexford Health Sources, Inc., 14 F.4th 757,

764 (7th Cir. 2021) (discussing use of black box

during a medical appointment and finding “[t]he

amount of force used was minimal and the security

concerns significant” and, therefore, the use of

restraints did not violate the Eighth Amendment).

When Nelson is viewed in the context of

multiple Eighth Circuit decisions addressing the

propriety of using restraints during medical

transports, the Minnesota Supreme Court’s analysis

becomes even more attenuated and falls far below

this Court’s requirement that clearly established law

must place the constitutional question “beyond

debate.” White, 580 U.S. at 79; Wesby, 138 S.Ct. at

589; see Reynolds, 636 F.3d at 978-80; Moody, 986

F.2d at 241-42; Beaulieu, 690 F.3d at 1032-33.

Significantly, had the Eighth Circuit believed Nelson

had such a wide-reach, it undoubtedly would have

found Nelson applied to the claims subsequently

barred in Reynolds and Beaulieu, but it did not

because the cases are not factually analogous. In light

of Reynolds, Moody, and Beaulieu’s approval of the

use of restraints during medical transports, the

Minnesota Supreme Court’s conclusion that Nelson

somehow provided fair and clear warning to the

correctional officers that their conduct was

unconstitutional is unsupported.

In sum, the rationales underlying Hope, a

decision about willful, punitive cruelty, and Nelson, a

decision about the dangers of shackling women in

labor, fail to translate to the case before this Court.

24

As this Court explained in Mullenix v. Luna, the

dispositive question is “whether the violative nature

of particular conduct is clearly established.” 577 U.S.

7, 12 (2015) (internal quotations omitted). Given their

facts and underlying rationale, neither Hope, nor

Nelson, clearly established the violative nature of the

particular conduct at issue here. Accordingly, a

reasonable officer would not have known that the

conduct at issue—shackling a prisoner during

medical transport and a routine medical procedure—

was unconstitutional.

III.

The

Welters

Decision

Undermines

Governmental Operations by Providing

Little or No Guidance Concerning the

Application of Qualified Immunity in

Minnesota.

If the Minnesota Supreme Court’s broad

interpretation of clearly established law is left intact,

it will create unnecessary ambiguity regarding the

application of qualified immunity in Minnesota

courts. Such an overly broad interpretation of clearly

established law will impact, not only medical

transport and procedure cases, but all constitutional

claims pending in Minnesota courts. This result

undercuts the certainty provided to litigants by this

Court’s requirement that clearly established law

must be “dictated by controlling authority or a robust

consensus of cases or persuasive authority.” Wesby,

138 S.Ct. at 589-90. Under this Court’s framework,

litigants are aware of contours of “clearly established

law” by looking to existing precedent. By contrast, the

Minnesota Supreme Court’s endorsement of a

strained and attenuated definition of “clearly

established law,” defined with “less particularity,”

25

deprives parties of this certainty. The increased

uncertainty will have a chilling effect on county

operations, causing county officials, who are carrying

out “routine” duties, to be fearful to act, undercutting

the purpose of qualified immunity. Harlow, 457 U.S.

at 819.

Since counties are routinely required to defend

against constitutional claims, clarity regarding the

appropriate scope of “clearly established law” in

Minnesota is necessary. Failure to clarify the

application of this Court’s precedents to “routine”

conduct will have significant ramifications on county

operations, including increasing the volume, expense,

and duration of litigation and impacting the ability to

recruit, hire, and retain public employees. Further,

allowing the Minnesota Supreme Court’s definition of

“clearly established law” to stand impermissibly

erodes this Court’s precedents on issues of United

States Constitutional law in Minnesota’s state courts,

potentially

resulting

in

divergent

outcomes

depending on whether cases are filed in state or

federal court. Accordingly, Amici respectfully request

this Court grant certiorari and reverse the Minnesota

Supreme Court to enforce this Court’s precedent and

ensure uniformity between state and federal courts.

26

CONCLUSION

For the foregoing reasons, Amici respectfully

request that Officers Emily and Rhoney’s Petition for

Writ of Certiorari be granted and the Minnesota

Supreme Court’s decision be reversed.

Dated: May 17, 2023

Respectfully submitted,

Vicki A. Hruby

Counsel of Record

JARDINE, LOGAN & O’BRIEN PLLP

8519 Eagle Point Blvd., Suite 100

Lake Elmo, MN 55042

(651) 290-6500

vhruby@jlolaw.com

Counsel for Amicus Curiae

Association of MN Counties

27

JOHN J. CHOI

RAMSEY COUNTY ATTORNEY

Robert B. Roche

(counsel of record)

Rebecca Krystosek

Assistant Ramsey County Attorneys

121 Seventh Place East, Suite 4500

St. Paul, MN 55101

(651) 266-3230

robert.roche@co.ramsey.mn.us

rebecca.krystosek@co.ramsey.mn.us

Counsel for Amicus Curiae

Minnesota County Attorneys

Association

Richard D. Hodsdon

Minnesota Sheriffs’ Association

100 Empire Drive, Suite 222

St. Paul, MN 55103

(651) 491-5900

rick_hodsdon@yahoo.com

Attorney for Amicus Curiae

Minnesota Sheriffs’ Association