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

No. 22-1005

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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,

Petitioners,

v.

CHRISTOPHER WELTERS,

Respondent.

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

To The Supreme Court Of Minnesota

---------------------------------♦--------------------------------REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------KEITH ELLISON

Attorney General

STATE OF MINNESOTA

LIZ KRAMER

Solicitor General

MICHAEL GOODWIN*

Assistant Attorney General

445 Minnesota Street, Suite 1400

St. Paul, Minnesota 55101-2131

(651) 757-1456 (Voice)

(651) 296-7438 (Fax)

michael.goodwin@ag.state.mn.us

*Counsel of Record

Attorneys for Petitioners

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

1

ARGUMENT ........................................................

2

I.

II.

THE DECISION BELOW IS CONTRARY TO THIS

COURT’S PRECEDENTS ...................................

3

THIS COURT FREQUENTLY REVERSES ERRONEOUS DENIALS OF QUALIFIED IMMUNITY

SUCH AS THIS ONE .......................................

8

CONCLUSION..................................................... 13

ii

TABLE OF AUTHORITIES

Page

CASES

Brooks v. Miller, No. 21-10590, 2023 WL

5355022 (11th Cir. Aug. 22, 2023).............................5

Citizens Bank v. Alafabco, Inc., 539 U.S. 52

(2003) .........................................................................9

City & Cnty. of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) ...................................................6

D.C. v. Wesby, 583 U.S. 48 (2018) .................... 1, 3, 8, 12

DeShane v. City of Minneapolis, et al., No. CV 211452 (DWF/HB), 2022 WL 624579 (D. Minn.

Mar. 3, 2022) ........................................................ 5, 10

DirectTV v. Imburgia, 577 U.S. 47 (2015) ....................9

Farmer v. Brennan, 511 U.S. 825 (1994) ............ 3, 8, 12

Hagen v. Utah, 510 U.S. 399 (1994) ..............................9

Hope v. Pelzer, 536 U.S. 730 (2002)......................... 7, 12

Johnson v. California, 545 U.S. 162 (2005) ..................9

Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 581

U.S. 246 (2017) ..........................................................9

Kingsley v. Hendrickson, 576 U.S. 389 (2015) ..............5

Leonard v. St. Charles Cnty. Police Dep’t, 59

F.4th 355 (8th Cir. 2023) ....................................... 6, 7

McDeid v. Johnston, 984 N.W.2d 864 (Minn.

2023) ........................................................................12

McManemy v. Tierney, 970 F.3d 1034 (8th Cir.

2020) ........................................................................11

iii

TABLE OF AUTHORITIES – Continued

Page

Mullenix v. Luna, 577 U.S. 7 (2015) .............................7

Nelson v. Correctional Medical Services, 583

F.3d 522 (8th Cir. 2009) .............................................7

Oregon v. Mathiason, 429 U.S. 492 (1977) ...................9

Ryburn v. Huff, 565 U.S. 469 (2012) .............................6

Stanton v. Sims, 571 U.S. 3 (2013) .............................11

State v. Rainer, 103 N.W.2d 389 (1960) ......................12

Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011) .........5

Taylor v. Barkes, 575 U.S. 822 (2015) ...........................3

Taylor v. Riojas, 141 S. Ct. 52 (2020) ...........................3

White v. Pauly, 580 U.S. 73 (2017) ............................ 4, 8

Whitley v. Albers, 475 U.S. 312 (1986) ..........................6

Williams v. State, 910 N.W.2d 736 (Minn. 2018) .......12

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ...................................................5

U.S. Const. amend. VIII ............................................ 2, 3

U.S. Const. amend. XIV ..............................................10

STATUTES

42 U.S.C. §1983 ...........................................................13

iv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Office of the Legislative Auditor, Safety in State

Correctional Facilities (2020), https://perma.

cc/8K6A-8698.............................................................6

Steven Steinglass, Section 1983 Litigation in

State and Federal Courts § 9:1A (West 2022) ........10

1

INTRODUCTION

This Court has repeatedly held that qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law,” requiring that

existing precedent provide fair and clear notice of conduct that violates the Constitution. E.g., D.C. v. Wesby,

583 U.S. 48, 63 (2018) (internal quotation omitted).

Against this backdrop, the Minnesota Supreme Court

in this case announced a new standard for qualified

immunity that applies only in Minnesota state court,

requiring “less particularity” in the existing law when

a public official “is engaging in routine conduct that

does not require quick decision-making. . . .” App. 4243. It then applied that rule to two corrections officers

who made security decisions about an inmate from one

of the state’s most violent prisons, confidently declaring the officers’ actions in restraining the inmate were

“not justified by a competing government interest.”

App. 42.

The Minnesota Supreme Court’s analysis erodes

qualified immunity for public officials accused of

wrongdoing in Minnesota state courts, creating difficulty for public officials as well as lower courts. In asking this Court to leave the state court’s ruling intact,

Respondent Christopher Welters adopts the same

flawed analysis, and then suggests that the Minnesota

Supreme Court did not really mean what it said, or at

least did not understand itself to be creating precedent. But subsequent case law developments in Minnesota have already shown otherwise. The Minnesota

Supreme Court’s qualified immunity analysis is flatly

2

inconsistent with this Court’s cases and portends a

new qualified immunity landscape in Minnesota where

the same set of facts will be evaluated differently in

state and federal court. Accordingly, the Court should

grant review in this case and reverse the decision below.

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

ARGUMENT

Petitioners Ernest Rhoney and Cornelius Emily,

two Minnesota Department of Corrections officers, established in their petition that the Minnesota Supreme

Court’s denial of qualified immunity contradicts this

Court’s precedents and is likely to have serious consequences for public officials in Minnesota.1 Welters’

Brief in Opposition (Br. in Opp.) attempts to justify the

court’s erroneous analysis and minimize its consequences. Ultimately, however, Welters fails to identify

any case law that would have put Petitioners on notice

that their decisions were unlawful. He also offers no

solution for public officials who are litigating a qualified immunity defense that will be weakened in Minnesota state courts unless this Court steps in. This

Court should grant the petition and summarily reverse.

1

Petitioners do not concede that their alleged conduct violated the deliberate indifference standard. Br. in Opp. 1, 14, 25.

The issue before the Court, however, is whether that alleged

Eighth Amendment violation was “clearly established” within the

meaning of this Court’s qualified immunity precedent.

3

I.

THE DECISION BELOW IS CONTRARY TO THIS

COURT’S PRECEDENTS.

As described in the petition, the Minnesota Supreme Court’s analysis is inconsistent with this

Court’s qualified immunity case law, which requires

the Court to identify factually analogous case law so

that constitutional violations are clear to “all but the

plainly incompetent or those who knowingly violate

the law.” Pet. 13-23. In contending that the decision below satisfies “this demanding standard,” Wesby, 583

U.S. at 63, Respondent cites the same inapposite cases

as the Minnesota Supreme Court and adopts the same

flawed analysis. Br. in Opp. 16-26.

The distinctions between those cases and this one

do not turn, as Respondent erroneously contends, on

the type of medical condition for which the inmate was

receiving treatment, but rather on the conditions actually observed by the corrections officer at the time they

were making their respective decisions. Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (stating that “officer-byofficer analysis” is required to determine Eighth

Amendment liability); Taylor v. Barkes, 575 U.S. 822,

827 (2015) (stating that “Eighth Amendment liability

requires actual awareness of risk” and finding applicable law not clearly established for purposes of qualified

immunity) (citing Farmer v. Brennan, 511 U.S. 825, 837

(1994)). Here, according to Welters’ own testimony, Officer Rhoney was aware that Welters’ handcuffs were

tight but not that he was in pain when Rhoney decided

not to loosen or remove the handcuffs. Rhoney’s comments, as described by Welters, reflect that Rhoney

4

thought the cuffs would be removed after the 15-minute drive to the high-security prison where the medical facility was located. App.7, 102-103; Doc. 43 at 1112. Welters admitted that he never told Officer Rhoney

he was in pain, and Welters testified he does not “believe [Rhoney] was intending to hurt me.” Doc. 43 at

60. These facts, based entirely on Welters’ version of

events, fall far short of clearly establishing that

Rhoney was subjectively aware of a substantial risk of

serious harm to Welters. Welters does not distinguish

any of the case law cited in the petition and instead

uses the same cases cited by the Minnesota Supreme

Court, which are inapposite for the reasons discussed

therein. Pet. 17-19, 24-28.

Officer Emily, according to Welters, was not present when the handcuffs were applied or when he complained to Officer Rhoney about the cuffs being “pretty

tight.” App. 7. Instead, Welters alleged that he spoke to

Officer Emily exactly once, when he and another inmate were in a holding cell waiting for their medical

appointments. Doc. 43 at 8, 14-17. Welters said his

hands were numb and he asked why he and the other

inmate were still in restraints. App. 103, 113, 120. According to Welters, Officer Emily was alone at the time

and said he need to go find his partners. App. 103.

Welters did not allege that any medical staff ever

asked Officer Emily to remove the restraints or that

Officer Emily was present when medical staff allegedly

asked about the restraints. See White v. Pauly, 580 U.S.

73, 77 (2017) (holding that the court “considers only

the facts that were knowable to the defendant officers”

5

in evaluating qualified immunity) (citing Kingsley v.

Hendrickson, 576 U.S. 389, 399 (2015)).

Case law does not establish that a single complaint of numbness from handcuffs would show a reasonable officer’s subjective awareness of a serious

condition. See Stepnes v. Ritschel, 663 F.3d 952, 961

(8th Cir. 2011) (characterizing “bruising, numbness,

and soreness” from handcuffs as non-serious injuries

in Fourth Amendment context); DeShane v. City of

Minneapolis, et al., No. CV 21-1452 (DWF/HB), 2022

WL 624579, at *7 (D. Minn. Mar. 3, 2022) (single complaint of numbness did not put officers on notice of serious medical condition for deliberate indifference

purposes). Indeed, the Eleventh Circuit recently concluded that case law did not clearly establish deliberate indifference where an official failed to provide

medical attention in response to a complaint about

numbness from handcuffs. Brooks v. Miller, No. 2110590, 2023 WL 5355022, at *13 (11th Cir. Aug. 22,

2023). See also Pet. 24-28 and cases cited therein.

Contrary to the Minnesota Supreme Court’s analysis (which is adopted by Welters), the absence of a

“disturbance” does not mean that Officer Emily did not

have reasonable safety concerns in the situation that

confronted him. App. 20; Br. in Opp. 14-15. Officer

Emily explained he decided to keep Welters and the

other inmate in full restraints because he was working

by himself with two inmates from a high-security

prison that accounts for a significant number of assaults on both staff and other prisoners. App. 103, 113,

6

120. Office of the Legislative Auditor, Safety in State

Correctional Facilities 4, 22-24 (2020).2

In the qualified immunity context, this Court has

cautioned against “second-guessing” officials’ on-thescene assessments of danger “with the benefit of hindsight and calm deliberation.” Ryburn v. Huff, 565 U.S.

469, 477 (2012) (per curiam); City & Cnty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 612 (2015). See

also Whitley v. Albers, 475 U.S. 312, 320 (1986) (discussing “appropriate hesitancy to critique in hindsight”

prison officials’ decisions). That is exactly what the

Minnesota Supreme Court did here. As the Eighth Circuit recently counseled, failure to immediately respond

to inmate medical concerns when working alone is not

deliberately indifferent. See Leonard v. St. Charles

Cnty. Police Dep’t, 59 F.4th 355, 361 (8th Cir. 2023) (corrections officer was entitled to qualified immunity

when “she waited for appropriate backup” instead of

immediately entering holding cell while inmate clawed

at his eyes). Similar circumstances apply here, as it is

undisputed that Officer Emily did not have a colleague

present when Welters spoke to him. App. 8, 103, 113,

120. As described by amici, even removing the black

box to loosen the cuffs implicated safety concerns. Br.

Assoc. of Minn. Counties, et al., 6. Thus, in the absence

of caselaw establishing that this decision was unlawful, Officer Emily should be afforded qualified immunity.

2

https://perma.cc/8K6A-8698.

7

Welters’ continued reliance on Hope v. Pelzer and

Nelson v. Correctional Medical Services is misplaced

for the reasons discussed in the petition and that of

amici. Pet. 25-27; Br. Assoc. of Minn. Counties, et al.,

14-24. The defendant corrections officer in Nelson

watched the inmate, a nonviolent offender, struggle to

walk down the hall, scream in pain, and struggle to

give birth while shackled to her hospital bed. 583 F.3d

522, 525 (8th Cir. 2009). The officer also defied a specific directive from her supervisor to not restrain the

inmate, as well as repeated requests of medical personnel to unshackle the inmate, which the officer admitted

to hearing. Id. In this case, there was no such directive

provided beforehand to either Petitioner, nor is there

any evidence that a doctor or nurse asked either of

them to remove the restraints. As discussed in the petition, Nelson does not apply to this situation at all, let

alone with “obvious clarity.” Hope v. Pelzer, 536 U.S.

730, 741 (2002). And Hope, in which an inmate was

punished by being chained, shirtless, to a hitching post

in the hot sun for seven hours, does nothing to inform

officers in the situation of Petitioners of what the law

required. Pet. 20-21. Br. Assoc. of Minn. Counties, et al.,

14-24.

Nelson, Hope, and the other cases relied upon by

Welters “are simply too factually distinct to speak

clearly to the specific circumstances here.” Mullenix v.

Luna, 577 U.S. 7, 18 (2015). Neither Nelson nor any

other controlling case clearly establishes that the decisions made by Officers Rhoney and Emily “rise to the

level of criminal recklessness.” Leonard, 59 F.4th at

8

360. See Farmer v. Brennan, 511 U.S. 825, 839 (1994)

(adopting criminal recklessness standard for deliberate indifference).

Welters’ attempt to square the Minnesota Supreme Court’s analysis with this Court’s case law fails

at every turn. As discussed in the next section, this is

serious error with real consequences for public officials

in Minnesota.

II.

THIS COURT FREQUENTLY REVERSES ERRONEOUS DENIALS OF QUALIFIED IMMUNITY SUCH AS

THIS ONE.

As established in the petition, this case is precisely

the kind of case in which this Court has repeatedly reversed lower courts. Pet. 28-30. Misapplication of qualified immunity creates conundrums for public officials

everywhere. Wesby, 583 U.S. at 62 (reaching qualified

immunity issue because lower court’s analysis “if followed elsewhere, would undermine the values qualified immunity seeks to promote”); White, 580 U.S. at

79 (2017) (reversing misapplication of “clearly established” prong and emphasizing “qualified immunity is

important to society as a whole”). The Court has repeatedly reversed on this very issue: failing to identify

case law that is sufficiently analogous to put “all but

the plainly incompetent” on notice of what is constitutionally required. Pet. 29-30. Most of these cases have

been summary per curiam reversals with no public dissents. Id.

9

Welters’ suggestion that this case is somehow less

important because it is from a state court judgment

should be dismissed out of hand; the Court regularly

reviews and reverses state court decisions when they

depart from this Court’s precedent on issues of federal

law. E.g., Kindred Nursing Ctrs. Ltd. P’ship v. Clark,

581 U.S. 246, 252-253 (2017) (reversing judgment of

state supreme court because decision did not comport

with Supreme Court precedent); Citizens Bank v.

Alafabco, Inc., 539 U.S. 52, 55-58 (2003) (per curiam)

(granting certiorari of state supreme court decision to

correct a misreading of Supreme Court precedent); Oregon v. Mathiason, 429 U.S. 492, 493 (1977) (per curiam) (granting certiorari and summarily reversing

where state court “read Miranda too broadly”).

The Court also regularly grants certiorari when the

state and federal courts from the same state analyze

issues of federal law differently. DirectTV v. Imburgia,

577 U.S. 47, 52-53 (2015) (granting certiorari and reversing judgment of state appellate court where it was

in conflict with federal court of appeals covering that

state); Hagen v. Utah, 510 U.S. 399, 409 (1994) (granting certiorari “to resolve the direct conflict between

these decisions of the Tenth Circuit and the Utah Supreme Court”). See also Johnson v. California, 545 U.S.

162, 168 (2005) (granting certiorari of state court judgment on “narrow but important” issue of federal law).

Such conflicts encourage forum shopping, which itself

is a reason the Court should grant certiorari.

The likelihood of inconsistent results between

state and federal court is all too real. In fact, while this

10

case was pending at the Minnesota Supreme Court, a

federal district court in Minnesota granted a Rule 12

dismissal to two law enforcement officers in a case alleging the officers “were deliberately indifferent to [the

plaintiff ’s] obvious medical need caused by unduly

tight handcuffs and that they failed to take reasonable

measures to address her serious medical need.”

DeShane, 2022 WL 624579, at *5. The plaintiff 3 in that

case alleged that she told the officers her hand was going numb while she was handcuffed and that the officers ignored her complaints. Id. at *7. The court found

that the plaintiff ’s “single complaint that her hand

was going numb is insufficient to allege that [the defendants] actually knew of but deliberately disregarded an objectively serious medical need.” Id. at *7.

Accordingly, the defendants in that case were entitled

to qualified immunity on the face of the pleadings. Under the Minnesota Supreme Court’s analysis, the outcome would almost certainly be different.

Welters suggests that the concerns about inconsistency are overblown absent some data about the frequency with which state courts decide qualified

immunity issues. But “[s]ection 1983 actions are routinely heard in the courts of all the states.” Steven

Steinglass, Section 1983 Litigation in State and Federal Courts § 9:1A (West 2022). Future plaintiffs are

more likely to choose a state forum, with the diluted

3

The plaintiff in DeShane was a pretrial detainee. Although

her claims are therefore analyzed under the Fourteenth Amendment, the court used the same deliberate indifference standard

that applies to convicted persons. 2022 WL 624579, at *6.

11

standard from the Minnesota Supreme Court controlling the outcome. Liability for civil rights actions

should not turn on the forum in which a defendant is

sued, particularly in light of this Court’s recognition

that “[q]ualified immunity gives government officials

breathing room to make reasonable but mistaken judgments.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (internal

quotations omitted).

Moreover, as discussed in the petition, removal

from state court to federal court is not an attractive

option because plaintiffs frequently join individual capacity claims against officials with claims against

state agencies, which enjoy sovereign immunity. Pet.

32-33. Even when state defendants can remove an action to federal court without waiving the sovereign immunity of any attendant defendants, the risk of

prolonged litigation in multiple forums persists because federal courts are not required to exercise supplemental jurisdiction over state law claims. E.g.,

McManemy v. Tierney, 970 F.3d 1034, 1040 (8th Cir.

2020) (per curiam) (affirming decision to decline supplemental jurisdiction in 1983 action after affirming

qualified immunity).

Welters makes no attempt to argue that the Minnesota Supreme Court’s qualified immunity standard,

which requires “less particular” notice to public officials engaging in “routine conduct,” is consistent with

this Court’s case law, and instead tries to explain it

away as “dicta.” Br. in Opp. 15. Although the Minnesota

Supreme Court declined “to parse precisely where [the

constitutional] line is to be drawn,” it went on to do

12

exactly what this Court has said it cannot: define the

law at a high level of generality and draw analogues

from inapposite case law. App. 44-45. The Court applied the “basic directive” of Hope and Farmer to the

specific circumstances confronting Petitioners. App.

41-42. In other words, the Minnesota Supreme Court

did define the applicable right at a high level of generality, a legal error that this Court frequently reverses.

The Minnesota Supreme Court itself already applied its new qualified immunity standard just a few

months later in McDeid v. Johnston, denying qualified

immunity in constitutional claims arising out of the

Minnesota Sex Offender Treatment Program. 984

N.W.2d 864, 872 (Minn. 2023). The Minnesota Supreme

Court is not treating its holding in Welters as dicta, and

lower state courts are unlikely to regard it as such.

Furthermore, the Minnesota Supreme Court’s

analysis was indisputably an “expression of opinion on

a question directly involved and argued by counsel.”

State v. Rainer, 103 N.W.2d 389, 396 (1960). It would

therefore be “judicial dictum” and “entitled to much

greater weight than mere obiter dictum and should not

be lightly disregarded.” Id. See also Williams v. State,

910 N.W.2d 736, 741 (Minn. 2018) (following dicta

from prior cases). This is precisely the situation where

certiorari is warranted because the Minnesota Supreme Court’s analysis, “if followed elsewhere, would

undermine the values qualified immunity seeks to

promote.” Wesby, 583 U.S. at 62 (internal quotations

omitted). This case is worthy of this Court’s attention

13

and should be decided in accordance with this Court’s

precedent.

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

CONCLUSION

Time and time again, this Court has granted certiorari to ensure that lower courts properly apply its

precedents, especially qualified immunity. The Court

should do so here too. The Minnesota Supreme Court’s

analysis is deeply flawed and creates a significant risk

of inconsistency between state and federal courts in

Minnesota. The Court should grant certiorari, vacate

the Minnesota Supreme Court’s decision, and remand

with instructions to reinstate summary judgment for

the Petitioners on Welters’ §1983 claim.

Dated: August 29, 2023

Respectfully submitted,

KEITH ELLISON

Attorney General

STATE OF MINNESOTA

LIZ KRAMER

Solicitor General

MICHAEL GOODWIN*

Assistant Attorney General

445 Minnesota Street, Suite 1400

St. Paul, Minnesota 55101-2131

(651) 757-1456 (Voice)

(651) 296-7438 (Fax)

michael.goodwin@ag.state.mn.us

*Counsel of Record

Attorneys for Petitioners