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.