Amicus Curiae Brief — Craig Roper, Petitioner v. De'On Crane, et al.

Supreme Court briefJun 28, 2023

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Nos. 22-1151, 22-1157

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CITY OF ARLINGTON, TEXAS; CRAIG ROPER,

Petitioners,

v.

DE’ON L. CRANE, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE THE TEXAS MUNICIPAL

LEAGUE INTERGOVERNMENTAL RISK POOL,

TEXAS ASSOCIATION OF COUNTIES, TEXAS

ASSOCIATION OF COUNTIES RISK MANAGEMENT

POOL, COMBINED LAW ENFORCEMENT

ASSOCIATIONS OF TEXAS, TEXAS MUNICIPAL

POLICE ASSOCIATION, LOUISIANA MUNICIPAL

ASSOCIATION, NATIONAL ASSOCIATION OF

POLICE ORGANIZATIONS, TEXAS POLICE CHIEFS

ASSOCIATION, MISSISSIPPI MUNICIPAL LEAGUE,

AND MISSISSIPPI MUNICIPAL SERVICE

CORPORATION, IN SUPPORT OF THE

CITY OF ARLINGTON AND CRAIG ROPER’S

PETITIONS FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------LAURA O’LEARY

Counsel of Record

CHRISTOPHER D. LIVINGSTON

FANNING HARPER MARTINSON

BRANDT & KUTCHIN, P.C.

One Glen Lakes

8140 Walnut Hill Lane, Suite 200

Dallas, Texas 75231

loleary@fhmbk.com

clivingston@fhmbk.com

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

[Additional Counsel Listed On Inside Cover]

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

MIKE THOMPSON, JR.

Associate General Counsel

TEXAS ASSOCIATION OF COUNTIES

1210 San Antonio Street

Austin, Texas 78701

(512) 478-8753

Attorneys for Amici Curiae the Texas Municipal League

Intergovernmental Risk Pool, Texas Association of Counties,

Texas Association of Counties Risk Management Pool,

Combined Law Enforcement Associations of Texas, Texas

Municipal Police Association, Louisiana Municipal

Association, National Association of Police Organizations,

Texas Police Chiefs Association, Mississippi Municipal

League, and Mississippi Municipal Service Corporation

i

TABLE OF CONTENTS

Page

Table of Contents .................................................

i

Table of Authorities .............................................

iii

Interest of Amici Curiae ......................................

1

Summary of the Argument ..................................

4

Reasons For Granting the Petitions ....................

6

A.

The Crane Opinion Conflicts with Decisions of this Court and Circuit Courts

Concerning Important Issues of Federal

Law ............................................................

6

1. The Crane Decision Conflicts with this

Court’s Precedent Concerning Danger

to Police Officers and Others...............

7

2. Crane Presents Important Issues for

Review Because Police Officers Frequently Face Threats of Serious

Harm ................................................... 10

3. The Crane Decision Conflicts with

This Court’s Precedent Concerning

the “Obvious Case” Exception ............. 12

4. The Crane Decision Conflicts with

Other Circuit Courts’ Analyses and

Holdings ............................................... 15

B.

The Fifth Circuit’s Inconsistent Holdings Jeopardize Police and Community

Safety ......................................................... 17

ii

TABLE OF CONTENTS—Continued

Page

1. The Fifth Circuit’s Irreconcilable Holdings Give Officers No Fair Warning

Concerning Their Potential Liability

in Split-Second Use-of-Force Cases ..... 17

2. This Court Should Grant the Petitions

to Provide Clarity to Judges, Law Enforcement, and the Public .................... 20

C.

The Court Should Address the Fifth Circuit’s Sidelong Challenge to this Court’s

Long-Established Law Concerning Traffic

Stops .......................................................... 23

Conclusion............................................................ 26

iii

TABLE OF AUTHORITIES

Page

CASES

Adams v. Williams, 407 U.S. 143 (1972).......................7

Arizona v. Johnson, 555 U.S. 323 (2009) .......... 7, 22, 25

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .... 14, 19, 20, 21

Baker v. Coburn, 68 F.4th 240 (5th Cir.

2023) ...................................................... 18, 19, 20, 22

Brosseau v. Haugen, 543 U.S. 194 (2004) ..... 8, 9, 13, 17

........................................................................... 21, 22

Burghardt v. Ryan, No. 21-3906, 2022 WL

1773420 (6th Cir. June 1, 2022 ...............................16

Carney v. Adams, 141 S. Ct. 493 (2020) .....................23

Carroll v. Carman, 574 U.S. 13 (2014) .......................21

Chimel v. California, 395 U.S. 752 (1969) ....................8

City and County of San Francisco v. Sheehan,

575 U.S. 600 (2015) .................................................21

City of Tahlequah v. Bond, 142 S. Ct. 9 (2021) ..........14

Clark v. Bowcutt, 675 Fed. App’x 799 (10th Cir.

2017) ........................................................................16

Crane v. City of Arlington, 50 F.4th 453 (5th Cir.

2022) ...................................... 4, 5, 8, 12-15, 18-21, 26

D.C. v. Wesby, 138 S. Ct. 577 (2018)............................13

Delaware v. Prouse, 440 U.S. 648 (1979) .............. 25, 26

Fenwick v. Pudimott, 778 F.3d 133 (D.C. Cir.

2015) ........................................................................16

Graham v. Connor, 490 U.S. 386 (1989) ................. 8, 13

iv

TABLE OF AUTHORITIES—Continued

Page

Gordon v. Bierenga, 20 F.4th 1077 (6th Cir. 2021) .......16

Harmon v. City of Arlington, 16 F.4th 1159 (5th

Cir. 2021) .................................................................13

Hermiz v. City of Southfield, 484 Fed. App’x 13

(6th Cir. 2012)..........................................................16

Hope v. Pelzer, 536 U.S. 730 (2002)................. 12, 13, 17

Kansas v. Glover, 140 S. Ct. 1183 (2020) ...................25

Kisela v. Hughes, 138 S. Ct. 1148 (2018) .............. 13, 21

Long v. Slaton, 508 F.3d 576 (11th Cir. 2007) ..............9

Maryland v. Wilson, 519 U.S. 408 (1997) ................. 7, 8

McCullough v. Antolini, 559 F.3d 1201 (11th Cir.

2009) ........................................................................16

Michigan v. Long, 463 U.S. 1032 (1983) .......................7

Michigan v. Summers, 452 U.S. 692 (1981)..................8

Mitchell v. Forsyth, 472 U.S. 511 (1985) .......................6

Mitchell v. Miller, 790 F.3d 73 (1st Cir. 2015) ............16

Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978) ................................................................. 23, 25

Mullenix v. Luna, 577 U.S. 7 (2015) ... 9, 14, 17, 18, 21, 22

Navarette v. California, 572 U.S. 393 (2014) ..............25

New York v. Belton, 453 U.S. 454 (1981) .......................8

Pace v. Capobianco, 283 F.3d 1275 (11th Cir.

2002) ........................................................................16

Pearson v. Callahan, 555 U.S. 223 (2009) ............ 19, 20

v

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ..............7

Plumhoff v. Rickard, 572 U.S. 765 (2014) ............ 19, 21

Ramirez v. Guadarrama, 844 Fed. App’x 710

(5th Cir. 2021)..........................................................21

Reichle v. Howards, 566 U.S. 658 (2012) .............. 17, 21

Reynolds v. Addis, No. 21-1454, 2022 WL 10738325

(6th Cir. Apr. 11, 2022) ......................................... 17

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) .... 13, 21

Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir.

2005) ........................................................................17

Rodriguez v. U.S., 575 U.S. 348 (2015) .......................25

Romero v. City of Grapevine, 888 F.3d 170 (5th

Cir. 2018) ...................................................................8

Ryburn v. Huff, 565 U.S. 469 (2012) .............................9

Shanks v. City of Arlington, No. 4:22-CV-00573-P,

2022 WL 17835509 (N.D. Tex. Dec. 21, 2022) .........21

Spencer v. City of Orlando, Florida, 725 Fed.

App’x 928 (11th Cir. 2018) ......................................15

Stanton v. Sims, 571 U.S. 3 (2013) .............................21

Taylor v. Barkes, 575 U.S. 822 (2015) .........................21

Taylor v. Riojas, 141 S. Ct. 52 (2020) ................... 12, 13

Tennessee v. Garner, 471 U.S. 1 (1985) ............. 8, 13, 22

Thomas v. Moody, 653 Fed. App’x 667 (11th Cir.

2016) ........................................................................15

U.S. v. Robinson, 414 U.S. 218 (1973) ...........................7

vi

TABLE OF AUTHORITIES—Continued

Page

U.S. v. Arvizu, 534 U.S. 266 (2002) .............................25

Utah v. Strieff, 579 U.S. 232 (2016) ...................... 25, 26

Virginia v. Moore, 553 U.S. 164 (2008) .......................24

White v. Pauly, 580 U.S. 73 (2017) ..............................14

Whren v. U.S., 517 U.S. 806 (1996) .............................24

Williams v. City of Grosse Pointe Park, 496 F.3d

482 (6th Cir. 2007) ...................................................16

Wilson v. Layne, 526 U.S. 603 (1999) ..........................19

Wood v. Moss, 572 U.S. 744 (2014)..............................21

Wyatt v. Cole, 504 U.S. 158 (1992) ................................6

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ............................... 13, 14, 17, 24

U.S. Const. amend. VIII ........................................ 12, 17

RULES

Sup. Ct. R. 37 ................................................................1

Sup. Ct. R. 37.2 .............................................................1

OTHER AUTHORITIES

Elliott Averett, Note, An Unqualified Defense of

Qualified Immunity, 21 GEO. J. L. & PUB.

POL’Y 241 (2023) ........................................................6

| News | dailyitem.com .............................................24

vii

TABLE OF AUTHORITIES—Continued

Page

RAFAEL A. MANGUAL, CRIMINAL (IN)JUSTICE: WHAT

THE PUSH FOR DECARCERATION AND DEPOLICING GETS WRONG AND WHO IT HURTS THE

MOST (2022) .............................................................24

Sherman, L., Equal Protection by Race with Stop

and Frisk: a Risk-Adjusted Disparity (RAD) Index for Balanced Policing, CAMBRIDGE JOURNAL OF EVIDENCE-BASED POLICING (2021) https://

link.springer.com/article/10.1007/s41887-02100065-4 ....................................................................24

https://abc13.com/hpd-officer-shot-suspect-shootsduring-traffic-stop-n-houston-shooting-fleesscene-ella-boulevard/12703606/..............................11

https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/

le/leoka.....................................................................10

https://listen.sdpb.org/crime-courts/2023-05-08/

south-dakota-connected-officer-killed-followingwisconsin-traffic-stop ..............................................11

https://padailypost.com/2023/01/13/officer-injuredin-shooting/ ..............................................................11

https://ucr.fbi.gov/leoka/2017/resource-pages/tables/

table-80.xls ..............................................................10

https://ucr.fbi.gov/leoka/2019/resource-pages/tables/

table-1.xls ................................................................10

https://ucr.fbi.gov/leoka/2019/topic-pages/tables/

table-80.xls ........................................................ 10, 11

https://whyy.org/articles/philadelphia-police-officershot-west-shooting-gun-violence/ ...........................11

viii

TABLE OF AUTHORITIES—Continued

Page

https://wilsoncountysource.com/video-suspectarrested-after-officer-involved-shooting-duringtraffic-stop-in-madison/...........................................11

https://www.jsonline.com/story/news/crime/2023/

04/09/2-wisconsin-police-officers-killed-cameronchetek-during-traffic-stop-shooting/70096428007/ .......11

https://www.korncountry.com/2023/02/05/2-officersshot-during-mitchell-traffic-stop/ ...........................11

https://www.policeforum.org/staffing2023 ...................6

https://www.respondersafety.com/news/struck-byincidents/yearly-fatality-reports/ ............................11

https://www.washingtonpost.com/national-security/

2023/05/27/police-vacancies-hiring-recruitingreform/ ........................................................................... 6

https://www.wbtv.com/2023/03/29/gunman-firesshots-officer-during-shelby-traffic-stop-damagespatrol-car/ ................................................................11

https://www.wjcl.com/article/charleston-countytraffic-stop-deadly-shooting/43824497 ...................11

1

INTEREST OF AMICI CURIAE

Amici collectively represent thousands of local governmental entities and law enforcement agencies, tensof-thousands of citizens, and hundreds-of-thousands of

police officers. Amici and their members are strongly

interested in obtaining clear guidance from this Court

relating to appropriate use of force and acceptable traffic stop procedures, in furtherance of community and

law enforcement safety, and to enable officers to make

reasonable and lawful decisions in protecting the public. Amici seek to assist this Court by providing insight

and perspective into issues concerning law enforcement and municipal liability.

The Texas Municipal League Intergovernmental

Risk Pool (“TMLIRP”) is a self-insurance pool encompassing over 2,500 governmental entities in Texas,

including over 930 municipalities that have lawenforcement liability coverage through TMLIRP.1

The Texas Association of Counties (“TAC”) is a

non-profit corporation with all 254 Texas counties as

members. The TAC Board of Directors represents associations of County Judges and Commissioners, District

1

Counsel of record for all parties received timely notice under Supreme Court Rule 37.2 of amici’s intent to file this brief. No

counsel for any party in this matter and no party: (1) authored

this brief in whole or in part; or (2) contributed money that was

intended to fund the preparation or submission of this brief. No

person, other than TMLIRP, TAC, RMP, CLEAT, TMPA, LMA,

NAPO, TPCA, MML, MMSC, and their members or counsel, contributed money that was intended to fund the preparation or submission of this brief. Amici submit this brief pursuant to Supreme

Court Rule 37.

2

and County Attorneys, Sheriffs, Justices of the Peace,

and Constables.

The TAC Risk Management Pool (“RMP”) is an intergovernmental risk pool sponsored by TAC which

provides risk coverages to its 212 county members, 174

special district and other local government entity members, and their officers, employees, and volunteers.

Formed in 1926, the Louisiana Municipal Association (“LMA”) provides education, advocacy, and service

to 305 local governmental entities throughout Louisiana, including a constituency of over 8,000 municipal

police officers. LMA wholly owns Risk Management,

Inc. (“RMI”), which administers self-funded indemnity

programs for Louisiana municipalities, including law

enforcement professional liability for over 1,700 municipal police officers.

The Mississippi Municipal League (“MML”) represents all municipalities in Mississippi and provides legislative advocacy, benefits programs, and training. The

Mississippi Municipal Service Company (“MMSC”) administers the Mississippi Municipal Liability Plan,

which provides liability coverage, including law enforcement coverage, to most municipalities in Mississippi.

Founded in 1978, the National Association of Police Organizations (“NAPO”) is a nationwide alliance

of organizations committed to advancing the interests

of law enforcement officers. NAPO represents over

1,000 police units and associations, over 241,000 sworn

3

officers, and more than 50,000 citizens mutually dedicated to fair and effective law enforcement.

The Combined Law Enforcement Associations of

Texas (“CLEAT”) represents over 25,000 Police Officers, Detention Officers, and other Law Enforcement

Professionals across Texas. CLEAT advocates for the

fair and consistent application of the law for First Responders.

Founded in 1950, the Texas Municipal Police Association (“TMPA”) represents over 31,000 state, county,

and local police officers and public safety employees

across Texas. TMPA promotes professionalism in law

enforcement through training, education, and representation.

Founded in 1958, the Texas Police Chiefs Association (“TPCA”) promotes, encourages, and advances the

professional development and high ethical standards

of senior police management personnel throughout

Texas. TPCA’s membership of 1,550 includes the law

enforcement management personnel of over 330 cities

and agencies representing a population served of more

than 15 million.

Amici collectively represent hundreds-of-thousands

of law enforcement officers who daily face safety concerns in connection with traffic stops and arrests. This

Court recognizes the dangers police officers routinely

encounter in those settings and understands that the

Constitution permits them to use lethal force when

they reasonably believe that a suspect poses a threat

of serious harm to officers or others.

4

The Fifth Circuit’s decision in Crane sets a dangerous precedent in conflict with multiple decisions of

this Court because it teaches police officers that they

must stand down when faced with a non-compliant

suspect—even one with multiple outstanding warrants—who refuses to relinquish control of a running

vehicle, unless and until the vehicle moves. The Fifth

Circuit’s rule needlessly places officers, passengers,

and bystanders in danger. Indeed, the harrowing injuries Officer Bowden suffered when Crane’s car twice

ran over her illustrate this point beyond dispute. The

video evidence demonstrates that the Fifth Circuit’s

rule is unworkable, as officers could not have reacted

to the car’s sudden movement in time to prevent serious injury to Officer Bowden. ROA.1021 (23:53:28–

23:53:35).

Amici submit this brief to emphasize the exceptional importance of the questions presented in the petitions for writ of certiorari and to urge the Court to

grant these petitions.

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

SUMMARY OF THE ARGUMENT

The Court should grant Officer Roper and the City

of Arlington’s petitions for writ of certiorari because

the Fifth Circuit has decided important federal questions in ways that: (1) conflict with decisions of this

Court; (2) conflict with decisions of other circuit courts

of appeals and with other decisions of the Fifth Circuit;

(3) interfere with common policing practices designed

5

to protect officers and the law-abiding public they

serve; and (4) raise the specter of potential municipal

liability for actions that conform with this Court’s

precedent.

Six Fifth Circuit judges recognize that their Circuit’s analysis of qualified immunity in split-second

use-of-force cases is broken in a way that the Fifth

Circuit itself cannot, or will not, repair. This Court

should resolve the far-reaching issues which arise from

the Crane opinion, including: (1) proper application of

the rare “obvious case” exception to this Court’s oftrepeated requirement that courts define clearly established law with specificity when analyzing qualified

immunity; (2) appropriate police conduct in connection

with traffic stops and arrests; and (3) the potential, if

any, for municipal liability arising from constitutionally permissible traffic stops.

Amici share the frustration of the six Fifth Circuit

judges who forcefully disagree with the panel’s qualified immunity analysis and bemoan the uncertainty

and confusion the Crane opinion creates. Pet. App.

38a–43a.2 Amici urge this Court to grant the petitions

for writ of certiorari to address these important issues which affect police safety, public safety, police recruitment and training, and law enforcement policies

throughout the county.

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

2

Throughout this brief, amici refer to material contained in

the appendix to Officer Roper’s petition.

6

REASONS FOR GRANTING THE PETITIONS

A. The Crane Opinion Conflicts with Decisions

of this Court and Circuit Courts Concerning Important Issues of Federal Law.

One important—and necessary—purpose of qualified immunity is to enable law enforcement officers to

protect one another and the public without fear of exposure to crippling damages claims. E.g., Wyatt v. Cole,

504 U.S. 158, 167–68 (1992) (qualified immunity protects government’s ability to perform its traditional

functions and, by safeguarding government, protects

the public at large); Mitchell v. Forsyth, 472 U.S. 511,

525–26 (1985) (the public interest is served when officials act with independence and without fear of consequences, such as distraction from governmental duties,

inhibition of discretionary action, and deterrence of

able people from public service) (citations omitted). In

addition, officers regularly face significant danger. Uncertainty in the law increases this danger, encourages

timid responses to crime, and interferes with the increasingly difficult task3 of hiring and retaining skilled

peace officers.

3

See, e.g., https://www.washingtonpost.com/national-security/

2023/05/27/police-vacancies-hiring-recruiting-reform/ (law enforcement agencies throughout the country are experiencing unprecedented difficulty hiring and retaining qualified officers); https://

www.policeforum.org/staffing2023 (survey of 182 law enforcement agencies shows staffing of sworn officers is down by nearly

5% since 2020, and officers are retiring faster than they can be

replaced), last visited on June 26, 2023; see also, e.g., Elliott

Averett, Note, An Unqualified Defense of Qualified Immunity, 21

GEO. J. L. & PUB. POL’Y 241, 273–77 (2023) (exploring the

7

1. The Crane Decision Conflicts with this

Court’s Precedent Concerning Danger to

Police Officers and Others.

This Court characterizes the government’s interest in officer safety as “ ‘legitimate and weighty,’ ”4 and

it has long recognized that “traffic stops are ‘especially

fraught with danger to police officers.’ ” Johnson, 555

U.S. at 330 (quoting Michigan v. Long, 463 U.S. 1032,

1047 (1983)); see also, e.g., Mimms, 434 U.S. at 110 (rejecting the argument that “traffic violations necessarily involve less danger to officers than other types

of confrontations”). Indeed, this Court has “specifically

recognized the inordinate risk confronting an officer as

he approaches a person seated in an automobile,” noting that “ ‘a significant percentage of murders of police

officers occurs when the officers are making traffic

stops.’ ” Mimms, 434 U.S. at 110 (quoting U.S. v. Robinson, 414 U.S. 218, 234, n.5 (1973) and citing Adams v.

Williams, 407 U.S. 143, 148, n.3 (1972) (“ ‘According to

one study, approximately 30% of police shootings occurred when a police officer approached a suspect

seated in an automobile.’ ”)). This Court has stressed

that the “risk of harm to both the police and the occupants of a stopped vehicle is minimized . . . if the officers routinely exercise unquestioned command of the

situation.” Johnson, 555 U.S. at 330–31 (cleaned up)

(citing Maryland v. Wilson, 519 U.S. 408, 414 (1997)

disproportionate increase in crime and reduction in law enforcement staffing since Colorado repealed qualified immunity).

4

Arizona v. Johnson, 555 U.S. 323, 331 (2009) (quoting

Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam)).

8

and Michigan v. Summers, 452 U.S. 692, 702–03

(1981)). Traffic stops are more dangerous when, as in

Crane, the vehicle contains passengers. Wilson, 519

U.S. at 413 (“Regrettably, traffic stops may be dangerous encounters . . . the fact that there is more than one

occupant of the vehicle increases the possible sources

of harm to the officer.”).5

This Court recognizes that a police officer may use

lethal force when he reasonably believes that a suspect

poses a threat of serious physical harm to officers or

others. Brosseau v. Haugen, 543 U.S. 194, 197–98

(2004) (per curiam); Tennessee v. Garner, 471 U.S. 1, 11

(1985).

The Crane opinion violates this Court’s precedent

and imposes unrealistic and dangerous expectations

on police officers by second-guessing an officer’s onscene assessment of danger and by requiring officers

to wait until a suspect uses a deadly weapon before resorting to lethal force. Cf. Pet. App. 16a–19a; Romero v.

City of Grapevine, 888 F.3d 170, 177 (5th Cir. 2018)

(“Recognizing that ‘police officers are often forced to

make split second judgments . . . about the amount of

force that is necessary in a particular situation,’ the

Supreme Court has warned against ‘second-guessing

a police officer’s assessment, made on the scene, of

the danger presented by a particular situation.’ ” (quoting Graham v. Connor, 490 U.S. 386, 396 (1989) and

5

This Court recognizes that officer safety is imperiled if

weapons are within drivers’ or passengers’ reach during an arrest. See, e.g., New York v. Belton, 453 U.S. 454, 460 (1981);

Chimel v. California, 395 U.S. 752, 762–63 (1969).

9

Ryburn v. Huff, 565 U.S. 469, 477 (2012) (per curiam));

Mullenix v. Luna, 577 U.S. 7, 17 (2015) (per curiam)

(“ ‘the law does not require officers in a tense and dangerous situation to wait until the moment a suspect

uses a deadly weapon to act to stop the suspect’ ”)

(quoting Long v. Slaton, 508 F.3d 576, 581–82 (11th Cir.

2007)). This Court understands that a car can be a

deadly weapon and that an officer’s decision to prevent

a car from potentially injuring others can be reasonable. Brosseau, 543 U.S. at 200.

Under this precedent, Officer Roper had probable

cause to perceive a threat of serious physical harm to

officers or others when he and his colleagues approached a suspect in the driver’s seat of an automobile which contained passengers, one of whom reached

under his seat—possibly for a weapon—and the officers found themselves unable to exercise unquestioned

command of the situation, as Crane, the unlicensed

driver with multiple outstanding warrants, defied the

officers’ repeated instructions and remained behind

the wheel of a vehicle that he refused to turn off.6 The

Fifth Circuit disregarded this Court’s decisions concerning the significant danger officers face in connection with traffic stops—particularly when a passenger

reaches under a seat in the vehicle—and wrongly

concluded that the officers faced no threat of harm

unless and until Crane’s car began to move. Pet. App.

6

ROA.1021 (23:50:34–23:52:29); ROA.1004. Crane’s car shook,

its engine revved, and its tires spun. Pet. App. 7a, 15a. The danger of the situation manifested when Officer Bowden was run over

twice in seven seconds. ROA.1021 (23:53:28–23:53:35).

10

14a–16a. The Court should grant review to correct the

Fifth Circuit’s novel and dangerous requirement that

police officers wait until a stopped vehicle begins to

move before using force to prevent harm to officers or

others.

2. Crane Presents Important Issues for Review Because Police Officers Frequently

Face Threats of Serious Harm.

The FBI’s data collection, Law Enforcement Officers Killed and Assaulted (“LEOKA”), shows that, in

2017, when Crane twice ran over Officer Bowden,

60,211 officers were assaulted7 and 46 officers were feloniously killed.8 In 2017, ten percent of law enforcement officers were assaulted.9

The danger to police officers has increased since

then. LEOKA data show that from 2019-2022, an average of 57 officers were feloniously killed each year.10 In

2019, the last year for which this information is publicly available, LEOKA data show that nearly twelve

percent of officers were assaulted.11 Two of the 18 felonious police officer deaths occurring during the first

7

https://ucr.fbi.gov/leoka/2017/resource-pages/tables/table-80.xls,

last visited on June 26, 2023.

8

https://ucr.fbi.gov/leoka/2019/resource-pages/tables/table-1.xls,

last visited on June 26, 2023.

9

https://ucr.fbi.gov/leoka/2017/resource-pages/tables/table-80.xls.

10

https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/le/leoka, last

visited on June 26, 2023.

11

https://ucr.fbi.gov/leoka/2019/topic-pages/tables/table-80.xls,

last visited on June 26, 2023.

11

four months of 2023 “involved the use of a vehicle as a

weapon.” Id. At least fourteen officers have been shot

at or shot—four fatally—in connection with traffic

stops during the first five months of 2023.12

Police officers face additional dangers in conducting traffic stops. When officers step out of their vehicles

to conduct traffic stops, they are exposed to the dangers

of vehicles traveling around them. Consequently, officers must concentrate their attention on two fronts—

the traffic stop and the traffic. The Emergency Safety

Responder Institute (“ESRI”) has been compiling

struck-by-vehicle fatality data for emergency responders since 2019.13 Each year from 2019-2022, seventeen

to thirty police officers lost their lives in struck-byvehicle accidents.14 These numbers do not account for

12

Kentucky sheriff ’s deputy killed while conducting traffic

stop (wlky.com); https://www.jsonline.com/story/news/crime/2023/

04/09/2-wisconsin-police-officers-killed-cameron-chetek-duringtraffic-stop-shooting/70096428007/; https://listen.sdpb.org/crimecourts/2023-05-08/south-dakota-connected-officer-killed-followingwisconsin-traffic-stop; https://www.wjcl.com/article/charleston-countytraffic-stop-deadly-shooting/43824497; https://whyy.org/articles/

philadelphia-police-officer-shot-west-shooting-gun-violence/; https://

www.korncountry.com/2023/02/05/2-officers-shot-during-mitchelltraffic-stop/; https://padailypost.com/2023/01/13/officer-injured-inshooting/; https://abc13.com/hpd-officer-shot-suspect-shoots-duringtraffic-stop-n-houston-shooting-flees-scene-ella-boulevard/12703606/;

https://www.wbtv.com/2023/03/29/gunman-fires-shots-officer-duringshelby-traffic-stop-damages-patrol-car/; https://wilsoncountysource.

com/video-suspect-arrested-after-officer-involved-shooting-duringtraffic-stop-in-madison/, last visited on June 26, 2023.

13

https://www.respondersafety.com/news/struck-by-incidents/

yearly-fatality-reports/, last visited on June 26, 2023.

14

Id.

12

near-misses and injuries, sometimes severe, which officers suffer in connection with traffic stops.

Crane hurts public safety in the first instance by

discouraging officers from making traffic stops. The

opinion’s stand down rule then exposes officers to even

greater danger, and, by inhibiting police action in

tense, uncertain, and rapidly evolving situations, the

opinion also interferes with officers’ ability to protect

the public. This Court should grant the petitions to correct these problems.

3. The Crane Decision Conflicts with This

Court’s Precedent Concerning the “Obvious Case” Exception.

In Hope v. Pelzer, 536 U.S. 730, 738 (2002), this

Court recognized that a constitutional violation may

be obvious. This Court’s reasoning in Hope depended

upon the intrinsic cruelty of prison guards’ alleged conduct of chaining a shirtless prisoner to a hitching post

for seven hours in the blazing sun, refusing him water,

and taunting him. Id. at 745 (the “obvious cruelty

inherent in this practice should have provided respondents with some notice that their alleged conduct

violated Hope’s constitutional protection against cruel

and unusual punishment”); see also Taylor v. Riojas,

141 S. Ct. 52, 53–54 (2020) (finding an obvious Eighth

Amendment violation when a prisoner was housed, naked, for days in cells that were freezing and covered in

feces and sewage).

13

By contrast, in a Fourth Amendment excessive

force case with facts similar to those in Crane, this

Court found the case “far from the obvious one where

Graham and Garner alone offer a basis for decision.”

Brosseau, 543 U.S. at 199. In Brosseau, an officer shot

a suspect who refused to leave a parked car, started the

car, and may have begun to drive. Id. at 196–97. As in

Crane, in Brosseau the parties disputed whether the

officer fired before or after the car began to move. Id.

Nevertheless, this Court recognized that the officer

was entitled to qualified immunity because “this area

is one in which the result depends very much on the

facts of each case.” Id. at 200. Neither Brosseau nor

Crane involve allegations of extreme, cruel conduct

like Hope and Taylor, so neither Brosseau nor Crane

fall within the “obvious case” exception to the plaintiffs’ need to identify highly similar precedent to

demonstrate that the law was clearly established.

Indeed, the “obvious case” exception applies only

rarely and generally not to excessive force cases. D.C.

v. Wesby, 138 S. Ct. 577, 590 (2018); Harmon v. City of

Arlington, 16 F.4th 1159, 1167 (5th Cir. 2021) (“obvious” cases “are so rare that the Supreme Court has

never identified one in the context of excessive force”)

(emphasis in original); see also Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (use of force against a

suspect who had a knife in his pocket was “not an obvious case”); Kisela v. Hughes, 138 S. Ct. 1148, 1153

(2018) (use of lethal force against a woman holding a

kitchen knife who failed to comply with two commands

was “far from an obvious case”). As to excessive force

14

claims, this Court has “repeatedly told courts not to

define clearly established law at too high a level of generality” and repeatedly noted that specificity is especially important in the Fourth Amendment context.

City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) and

Mullenix, 577 U.S. at 12); White v. Pauly, 580 U.S. 73,

80 (2017).

Nevertheless, the Crane panel found Officer Roper’s

use of force an obvious Fourth Amendment violation

because the panel thought that a non-compliant, unlicensed driver with multiple outstanding warrants who

was behind the wheel of a running vehicle containing

three passengers—one of whom reached under his

seat—did not present a risk of serious harm to the

three surrounding police officers or others unless and

until the vehicle began to move. Pet. App. 16a. Sadly,

two seconds after the vehicle began to move, it ran over

one of the officers and, seconds later, ran over her

again. ROA.1021 (23:53:28–23:53:35). Despite the obvious accuracy of Officer Roper’s on-scene threat assessment, the Fifth Circuit proscribed his use of force.

This case presents an ideal vehicle to enable this

Court to address lower courts’ misapplication of the

rare “obvious case” exception because it illustrates the

depth of the Fifth Circuit’s inconsistency on this question. In May of 2023, the Fifth Circuit declined to find

an obvious Fourth Amendment violation and recognized a police officer’s entitlement to qualified immunity under nearly identical circumstances as those

presented in Crane. Infra at 18–19. This Court should

15

grant review of Crane because, by requiring police officers to stand down in the midst of tense, uncertain,

and rapidly evolving confrontations, the Fifth Circuit’s

unprecedented and inconsistent expansion of the “obvious case” exception endangers police officers, passengers, and the public.

4. The Crane Decision Conflicts with Other

Circuit Courts’ Analyses and Holdings.

This Court should grant review because the Fifth

Circuit’s characterization of Officer Roper’s conduct as

an obvious constitutional violation and the court’s determination that no threat of serious harm existed before Crane’s car moved conflict with cases from the

First, Sixth, Tenth, Eleventh, and District of Columbia

Courts of Appeals.

Sister circuits recognize that officers making splitsecond decisions may reasonably perceive a threat of

serious harm justifying lethal force even when a vehicle is stationary or when nobody is in the vehicle’s

path. Spencer v. City of Orlando, Florida, 725 Fed.

App’x 928, 932–33 (11th Cir. 2018) (no constitutional

violation when officer fatally shot driver who was trying to restart his stopped vehicle, explaining, “the officers were not required to wait until [the driver]

successfully restarted the car and drove toward them

before they defended themselves”); Thomas v. Moody,

653 Fed. App’x 667, 672–73 (11th Cir. 2016) (granting

qualified immunity when officer fatally shot a driver in

a stopped vehicle who did not respond to the officer’s

16

commands);15 Gordon v. Bierenga, 20 F.4th 1077, 1083

(6th Cir. 2021) (“Deadly force is justified against ‘a

driver who objectively appears ready to drive into an

officer or bystander with his car.’ ”) (quoting Hermiz v.

City of Southfield, 484 Fed. App’x 13, 16 (6th Cir.

2012)); Burghardt v. Ryan, No. 21-3906, 2022 WL

1773420, *2 (6th Cir. June 1, 2022) (no violation of

clearly established law because “what matters is that

[the vehicle] remained a threat to strike any of them

when they opened fire”) (citing Williams v. City of

Grosse Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007));

Mitchell v. Miller, 790 F.3d 73, 80 (1st Cir. 2015) (“the

test is not whether a person was actually directly in

the path of the car, but whether it was reasonable for

[the officer] to believe—at the point when events were

rapidly unfolding—that someone was at risk of serious

physical harm”); Clark v. Bowcutt, 675 Fed. App’x 799,

810 (10th Cir. 2017) (quoting McCullough v. Antolini,

559 F.3d 1201, 1207 (11th Cir. 2009) (“ ‘We have . . .

consistently upheld an officer’s use of force and

granted qualified immunity in cases where the decedent used or threatened to use his car as a weapon to

endanger officers or civilians’ ”)) (emphasis added).

Sister circuits reject application of the “obvious

case” analysis to officers’ split-second decisions about

lethal force. E.g., Fenwick v. Pudimott, 778 F.3d 133,

137 (D.C. Cir. 2015) (the constitutional question in a

case involving lethal force against a driver who clipped

15

See also id. at 672 (no constitutional violation occurs when

officers open fire at the same time that a vehicle begins moving)

(citing Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002)).

17

a police officer with his side-view mirror was “far from

obvious”); Reynolds v. Addis, No. 21-1454, 2022 WL

1073832, *5 (6th Cir. Apr. 11, 2022) (“we note that

Hope is an Eighth Amendment case, and the Supreme

Court has since repeatedly warned that specificity is

especially important in the Fourth Amendment context to clearly establish law for officers16 . . . Hope does

not stand for the proposition that plaintiffs in Fourth

Amendment cases do not need to offer any similar

cases to demonstrate that an officer should have been

on notice that his conduct violated the constitution.”)

(citing Hope, 536 U.S. at 739); Robinson v. Arrugueta,

415 F.3d 1252, 1256 (11th Cir. 2005) (the clearly established analysis in a case involving the threat of harm

from a vehicle “ ‘must be undertaken in light of the specific context of the case’ ”) (citing Brosseau, 125 S. Ct.

at 599).

B. The Fifth Circuit’s Inconsistent Holdings

Jeopardize Police and Community Safety.

1. The Fifth Circuit’s Irreconcilable Holdings Give Officers No Fair Warning Concerning Their Potential Liability in SplitSecond Use-of-Force Cases.

This Court recognizes the importance of “ensuring

that officials can reasonably anticipate when their conduct may give rise to liability for damages.” Reichle v.

Howards, 566 U.S. 658, 664 (2012) (cleaned up, citation

omitted). “[T]he crux of the qualified immunity test is

16

Citing Mullenix, 577 U.S. at 12.

18

whether officers have fair notice that they are acting

unconstitutionally.” Mullenix, 577 U.S. at 21 (citation

omitted). The Fifth Circuit provides police officers with

no fair notice concerning split-second decisions about

using force because the court is starkly inconsistent in

its qualified immunity analyses and rulings.

Shortly after the Fifth Circuit denied rehearing en

banc in Crane, a Fifth Circuit panel issued its opinion

in Baker v. Coburn, 68 F.4th 240 (5th Cir. 2023). In

Baker, police officers pulled up behind a stolen car that

was parked at a gas station pump. The driver failed to

comply with commands to roll down the windows and

let the officers see his hands, instead turning on the

car. One officer stepped in front of the car. Id. at 242–

44. The parties dispute whether the officer began

shooting into the car before or after the car began to

move, but the video evidence shows that the car did

not begin moving until after the officer began shooting. Id. at 243, n.3. The driver died at the scene. Id. at

244.

In Baker, as in Crane, a police officer who was in a

position to be injured by a vehicle used lethal force

against a non-compliant suspect who was behind the

wheel of a vehicle which was running but, arguably, not

moving at the time of the shots. Cf. id. at 242–44; Pet.

App. 6a–8a. However, the Fifth Circuit’s analysis and

decisions in Baker and in Crane are wholly inconsistent.

19

In Crane, the Fifth Circuit denied qualified immunity, characterizing the officer’s conduct as an obvious constitutional violation. Pet. App. 23a. By contrast,

in Baker, the Fifth Circuit found no obvious constitutional violation. Baker, 68 F.4th at 244–46. Instead, the

Baker panel required the plaintiffs to frame the clearly

established law inquiry with specificity and granularity such that “ ‘the right’s contours [are] sufficiently

definite that any reasonable official in the officer’s

shoes would have understood that he was violating it.’ ”

Id. (citing al-Kidd, 563 U.S. at 742 and quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)) (cleaned up,

citations omitted). After noting that the driver had ignored multiple commands from the officers and that

there was concern about the car being used as a

weapon,17 the Fifth Circuit held, as to the shots fired

before the vehicle began moving, that “plaintiffs have

not pointed to sufficient authority clearly establishing

that [the officer’s] conduct violated the law under the

specific circumstances he was facing, and thus he is entitled to qualified immunity.” Id. at 247.

Given the Fifth Circuit’s inconsistent holdings, it

could not have been clearly established in February

of 2017 that Officer Roper’s conduct would violate

Crane’s constitutional rights. See, e.g., Pearson v. Callahan, 555 U.S. 223, 245 (2009) (quoting Wilson v.

Layne, 526 U.S. 603, 618 (1999) for the proposition that

“ ‘[i]f judges . . . disagree on a constitutional question,

17

Baker, 68 F.4th at 246–47.

20

it is unfair to subject police to money damages for picking the losing side of the controversy.’ ”). Indeed, at

least six Fifth Circuit judges sharply disagree with

the Crane panel’s decision. Pet. App. 38a–43a.18 When

properly applied, qualified immunity “protects all but

the plainly incompetent or those who knowingly violate the law.” al-Kidd, 563 U.S. at 743 (citation omitted). Officer Roper “deserves neither label,” not least

because six Fifth Circuit judges found no fault with his

actions and three additional Fifth Circuit judges subsequently found no clearly established violation under

nearly identical circumstances. Pearson, 555 U.S. at

245; al-Kidd, 563 U.S. at 743; Pet. App. 38a–43a; Baker,

68 F.4th at 242–47.

2. This Court Should Grant the Petitions to

Provide Clarity to Judges, Law Enforcement, and the Public.

This Court should grant review because the Fifth

Circuit’s inconsistent qualified immunity holdings

leave defendants, judges, and citizens confused and

uncertain. Pet. App. 39a (Ho, J., noting that the Fifth

Circuit’s qualified immunity decisions are “confusing to citizens and police officers alike” and quoting

with approval the dissent’s observation that “ ‘we sow

the seeds of uncertainty in our precedents—which

grow into a briar patch of conflicting rules, ensnaring

18

Chief Judge Richman, who voted to rehear the case en

banc, did not explain her reasoning. Pet. App. 37a.

21

district courts and litigants alike.’ ”) (quoting Pet. App.

43a (Oldham, J., joined by Jones, Smith, Duncan, and

Wilson, JJ., dissenting from denial of rehearing en

banc)).19

This Court has not hesitated to correct circuit

courts that improperly deny immunity.20 This Court

should grant review of Crane for the same reasons it

granted review in Mullenix, as the parallels between

these cases are marked. As in Mullenix, the Fifth Circuit in Crane improperly: (1) identified a fact issue precluding summary judgment for an officer asserting

qualified immunity;21 (2) found an officer’s action objectively unreasonable because the factors that justified

deadly force in other cases were absent;22 (3) used the

precise formulation of allegedly “clearly established”

law that the Supreme Court has repeatedly rejected as

19

See also, e.g., Shanks v. City of Arlington, No. 4:22-CV00573-P, 2022 WL 17835509, *2 (N.D. Tex. Dec. 21, 2022) (noting

that the Fifth Circuit’s application of the qualified immunity test

“is often a morass of unpredictability”) (comparing Crane v. City

of Arlington, 50 F.4th 453, 458 (5th Cir. 2022) with Ramirez v.

Guadarrama, 844 Fed. App’x 710, 712–17 (5th Cir. 2021)).

20

E.g., Rivas-Villegas, 142 S. Ct. at 8–9; Wesby, 138 S. Ct. at

591; Mullenix, 577 U.S. at 16–19; Taylor v. Barkes, 575 U.S. 822

826–27 (2015); City and County of San Francisco v. Sheehan, 575

U.S. 600, 611, n.3 (2015) (“the Court often corrects lower courts

when they wrongly subject individual officers to liability”) (citing

Carroll v. Carman, 574 U.S. 13, 17 (2014)); Wood v. Moss, 572

U.S. 744 (2014); Plumhoff, 572 U.S. at 765; Stanton v. Sims, 571

U.S. 3 (2013) (per curiam); and Reichle, 566 U.S. at 658); Kisela,

138 S. Ct. at 1153–54; see also, e.g., al-Kidd, 563 U.S. at 741;

Brosseau, 543 U.S. at 201.

21

Cf. Mullenix, 577 U.S. at 10; Pet. App. 15a–16a, 19a.

22

Cf. Mullenix 577 U.S. at 11; Pet. App. 16a, 20a.

22

too broad;23 (4) used the general test from Garner;24

and (5) denied qualified immunity when no Supreme

Court precedent squarely governed the situation.25

Additionally, the Court should grant review because, given the confusing state of the law, law enforcement agencies are left uncertain about how to train

their officers to deal with non-compliant suspects who

remain in running vehicles during traffic stops. Should

they train officers to “exercise unquestioned command of the situation” under this Court’s precedent?

Johnson, 555 U.S. at 330–31 (and cases cited therein).

Should they train officers that they may use lethal

force when they are concerned that a non-compliant

suspect may use a vehicle as a weapon, under the Fifth

Circuit’s holding in Baker? Baker, 68 F.4th at 242–47.

Or should they train officers to continue negotiating

with non-compliant suspects who remain in control of

a deadly weapon, or simply let such suspects go, under

the Fifth Circuit’s inconsistent holding in Crane? Pet.

App. 5a–8a, 18a.

The Crane opinion rewards suspects for resisting

police officers’ lawful commands and punishes officers

for taking action aimed at protecting themselves and

the public. The Court should correct the perverse

23

Cf. Mullenix 577 U.S. at 12 (citing Brosseau, 543 U.S. at

199); Pet. App. 21a.

24

Cf. Mullenix 577 U.S. at 12–13 (citing Garner, 471 U.S. at

1); Pet. App. 21a.

25

Cf. Mullenix 577 U.S. at 15–16; Pet. App. 13a, 20a–23a.

23

incentives the Crane decision engenders and protect

police officers and the public by clarifying the law.

C. The Court Should Address the Fifth Circuit’s Sidelong Challenge to this Court’s

Long-Established Law Concerning Traffic

Stops.

The Court should also grant the petitions because the Crane decision includes an advisory opinion

concerning potential municipal liability for constitutionally permissible traffic stops which: (1) conflicts

with this Court’s precedent about legitimate law enforcement practices geared toward community safety;

(2) introduces additional confusion for law enforcement entities and officers; and (3) discourages officers

from fulfilling their sworn duties.

The Crane opinion begins with a discussion of pretextual traffic stops unrelated to Crane’s claims, which

only allege excessive force. Pet. App. 2a–4a.26 The Fifth

Circuit notes that, “[w]hile several major cities have

restricted the practice, in much of America, police traffic stops still seine for warrants” and suggests that

local policies permitting such stops could support municipal liability under Monell.27 Pet. App. 3a. In support

of this position, the Fifth Circuit invokes questionable secondary sources and policy decisions of distant

26

The panel lacked jurisdiction to opine about pretextual

traffic stops because Crane presents no live dispute on this issue.

Carney v. Adams, 141 S. Ct. 493, 498 (2020).

27

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

24

municipalities, which do not purport to reflect the varied economic, demographic, and political considerations that other communities face. Pet. App. 2a–4a.28 It

is difficult to follow the Fifth Circuit’s reasoning on

this point, as this Court finds “it obvious that the

Fourth Amendment’s meaning [does] not change with

local law enforcement practices.” Virginia v. Moore, 553

U.S. 164, 172 (2008) (citing Whren v. U.S., 517 U.S. 806,

815 (1996)).

Pretextual traffic stops are constitutionally permissible and are “a cornerstone of law enforcement

practice.” Whren, 517 U.S. at 810. Traffic stops and associated license and warrant checks serve important

safety interests.29 This Court has long recognized that

28

Amici question the reliability of the panel’s perception of

discrimination in traffic stops, which appears to be based on

flawed methodology. See, e.g. Sherman, L., Equal Protection by

Race with Stop and Frisk: a Risk-Adjusted Disparity (RAD) Index

for Balanced Policing, CAMBRIDGE JOURNAL OF EVIDENCE-BASED

POLICING (2021) https://link.springer.com/article/10.1007/s41887021-00065-4, last visited on June 26, 2023; See also RAFAEL A.

MANGUAL, CRIMINAL (IN)JUSTICE: WHAT THE PUSH FOR DECARCERATION AND DEPOLICING GETS WRONG AND WHO IT HURTS THE

MOST, 22–30, 138–45 (2022) (relating racial disparities in policing

to racial disparities in the communities which experience the

greatest serious crime); State police data show no racial profiling

in recent study of traffic stops | News | dailyitem.com, last visited on June 26, 2023 (no signs of racial profiling in 440,000 traffic

stops in Pennsylvania in 2022).

29

For example, a recent traffic stop for a minor offense resulted in the rescue of a woman who had been kidnapped at gunpoint. https://www.cbsnews.com/news/south-carolina-officer-rescueswoman-help-me-traffic-stop-north-myrtle-beach/, last visited on

June 26, 2023.

25

states have a vital safety interest in “ensuring that

only those qualified to do so are permitted to operate

motor vehicles . . . and hence that licensing . . . requirements are being observed.” Delaware v. Prouse,

440 U.S. 648, 658 (1979).30 This Court recognizes that

routine warrant checks are a precaution for officer

safety,31 particularly in the context of traffic stops,

which “are ‘especially fraught with danger to police officers.’ ” Rodriguez, 575 U.S. at 356 (quoting Johnson,

555 U.S. at 330); see also Prouse, 440 U.S. at 658–60.

Nevertheless, the Fifth Circuit criticized Officer

Bowden for failing to “send the family on” after learning that the object thrown out of the car was not drugrelated,32 even though Crane lacked a driver’s license

and had multiple outstanding warrants, including a

felony warrant relating to a charge for evading arrest.

Pet. App. 5a.

The Crane opinion introduces needless confusion

by suggesting that municipalities may face liability

under Monell for following law enforcement policies

that bear this Court’s imprimatur. Crane also creates widespread confusion for police officers who are

charged with enforcing licensing requirements and

30

See also Kansas v. Glover, 140 S. Ct. 1183, 1188 (2020).

Utah v. Strieff, 579 U.S. 232, 241 (2016) (citing Rodriguez

v. U.S., 575 U.S. 348, 355 (2015)).

32

This did not invalidate Officer Bowden’s traffic stop, which

was based on her belief that someone threw drug paraphernalia

out of the window. Navarette v. California, 572 U.S. 393, 403

(2014) (“we have consistently recognized that reasonable suspicion ‘need not rule out the possibility of innocent conduct.’ ”) (quoting U.S. v. Arvizu, 534 U.S. 266, 277 (2002)).

31

26

arresting suspects with outstanding warrants. Prouse,

440 U.S. at 658; Streiff, 579 U.S. at 240. The Court

should grant review to correct this confusion.

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

CONCLUSION

The Crane decision conflicts with this Court’s and

circuit courts’ rulings, imposes a “stand down” rule

which undermines officers’ authority, and encourages

timidity, rather than reasonable action in support of

public safety. The Court should grant the petitions to

correct these errors.

Respectfully submitted,

LAURA O’LEARY

Counsel of Record

CHRISTOPHER D. LIVINGSTON

FANNING HARPER MARTINSON

BRANDT & KUTCHIN, P.C.

One Glen Lakes

8140 Walnut Hill Lane, Suite 200

Dallas, Texas 75231

loleary@fhmbk.com

clivingston@fhmbk.com

(214) 369-1300 (office)

(214) 987-9649 (telecopier)

MIKE THOMPSON, JR.

Associate General Counsel

TEXAS ASSOCIATION OF COUNTIES

1210 San Antonio Street

Austin, Texas 78701

(512) 478-8753

27

Attorneys for Amici Curiae the Texas Municipal

League Intergovernmental Risk Pool, Texas

Association of Counties, Texas Association of Counties

Risk Management Pool, Combined Law Enforcement

Associations of Texas, Texas Municipal Police

Association, Louisiana Municipal Association,

National Association of Police Organizations,

Texas Police Chiefs Association, Mississippi

Municipal League, and Mississippi

Municipal Service Corporation

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

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