Petition for Writ of Certiorari — N. S., Only Child of Decedent, Ryan Stokes, By and Through Her Natural Mother and Next Friend, Brittany Lee, et al., Petitioners v. Kansas City Board of Police Commissioners, et al.

Supreme Court briefDec 9, 2022

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NO. _______

IN THE

Supreme Court of the United States

N.S., ONLY CHILD OF DECEDENT, RYAN STOKES, BY AND

THROUGH HER NATURAL MOTHER AND NEXT FRIEND,

BRITTANY LEE; NARENE JAMES,

Petitioners,

KANSAS CITY BOARD OF POLICE COMMISSIONERS;

MICHAEL RADER; LELAND SHURIN; ANGELA WASSONHUNT; ALVIN BROOKS; MAYOR SLY JAMES; DARRYL

FORTE; RICHARD SMITH; WILLIAM THOMPSON; AND

DAVID KENNER,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Brian F. McCallister

THE MCCALLISTER

LAW FIRM, P.C.

917 West 43rd Street

Kansas City, Missouri 64111

Raymond P. Tolentino

Counsel of Record

Edward Williams

HOWARD UNIVERSITY SCHOOL

OF LAW CIVIL RIGHTS CLINIC

2900 Van Ness Street NW

Cynthia L. Short

CLS MITIGATION & CONSULTING Washington, D.C. 20008

(202) 699-0097

SERVICES, L.L.C.

raymond.tolentino

P.O. BOX 68217

@huslcivilrightsclinic.org

Riverside, Missouri 64168

December 9, 2022

Counsel for Petitioners

QUESTIONS PRESENTED

1. Whether qualified immunity insulates a law enforcement officer from liability under 42 U.S.C.

§ 1983 if there is no factually identical precedent

establishing the unconstitutionality of that officer’s

conduct (as the Fifth, Sixth, and Eighth Circuits

have held), or whether a constitutional right can be

“clearly established” by precedent with some factual variation so long as the officer has fair notice

that his conduct is unconstitutional (as this Court

and the First, Third, Fourth, Seventh, Ninth, and

Eleventh Circuits have held).

2. Whether the judge-made doctrine of qualified immunity should be narrowed or abolished.

PARTIES TO THE PROCEEDINGS BELOW

Petitioners N.S., the only child of decedent, Ryan

Stokes, by and through her natural Mother and next

friend, Brittany Lee, and Narene James, the Mother

of Mr. Stokes, were Plaintiffs in the District Court and

Appellants in the Court of Appeals.

Respondents Kansas City, Missouri Board of Police

Commissioners; Michael Rader; Leland Shurin; Angela Wasson-Hunt; Alvin Brooks; Mayor Sly James;

David Kenner; Darryl Forte (former Chief of the Kansas City, Missouri Police Department); Richard Smith

(the immediate past Chief of the Kansas City, Missouri Police Department); and Officer William Thompson were Defendants in the District Court and Appellees in the Court of Appeals.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioners are individuals and therefore have no

parent corporation and no stock.

STATEMENT OF RELATED PROCEEDINGS

N.S. v. Kansas City Board of Police Commissioners,

No. 20-1526 (8th Cir.) (judgment entered on May 31,

2022)

N.S. v. Kansas City Board of Police Commissioners,

No. 4:16-cv-843-BWC (W.D. Mo.) (judgment entered

on February 11, 2020)

N.S. v. Kansas City Board of Police Commissioners,

No. 18-1537 (8th Cir.) (judgment entered on August

12, 2019)

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDINGS BELOW ........... ii

CORPORATE DISCLOSURE STATEMENT ............ iii

STATEMENT OF RELATED PROCEEDINGS ........ iv

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

INTRODUCTION ........................................................ 1

OPINIONS AND ORDERS BELOW .......................... 3

JURISDICTION .......................................................... 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................... 3

STATEMENT OF THE CASE .................................... 4

A. Factual Background ......................................... 4

B. Procedural History ............................................ 7

REASONS FOR GRANTING THE WRIT ................ 10

I. THE COURT SHOULD GRANT CERTIORARI

TO RESOLVE AN ACKNOWLEDGED

CIRCUIT SPLIT ON THE PROPER

APPLICATION OF THE QUALIFIED

IMMUNITY DOCTRINE ..................................... 10

A. The Eighth Circuit’s Decision Deepens

Division Among the Courts of Appeals on

What Level of Factual Similarity to Prior

Case Law Is Needed to Show Clearly

Established Law ............................................. 10

1. The Fifth, Sixth, and Eighth Circuits

Require Plaintiffs to Identify a Prior Case

Involving the Same Factual Scenario to

Satisfy the Clearly Established Prong ..... 12

2. The First, Third, Fourth, Seventh, Ninth,

and Eleventh Circuits Do Not Require

Plaintiffs to Identify a Prior Case

Involving the Same Factual Scenario....... 15

B. The Eighth Circuit’s Decision Is Incorrect .... 18

II. THE COURT SHOULD GRANT CERTIORARI

TO ABOLISH OR NARROW THE DOCTRINE

OF QUALIFIED IMMUNITY.............................. 29

A. Modern Qualified Immunity Doctrine Is a

Creature of Judicial Innovation That Is

Divorced from the Statutory Text and

Common Law .................................................. 30

B. Qualified Immunity Fails to Achieve Its

Asserted Policy Objectives.............................. 32

C. Modern Qualified Immunity Doctrine

Prevents Courts from Remedying

Constitutional Violations by Erecting an

“Absolute Shield” against Liability ................ 34

CONCLUSION .......................................................... 36

APPENDIX

Appendix A

Opinion of the United States

Court of Appeals for the Eighth

Circuit

(May 31, 2022) ......................... App. 1

vii

Appendix B

Judgment of the United States

Court of Appeals for the Eighth

Circuit

(May 31, 2022) ....................... App. 11

Appendix C

Amended Partial Order for Summary Judgment of the United

States District Court for the

Western District of Missouri

(February 11, 2020) ............... App. 13

Appendix D

Judgment of the United States

District Court for the Western

District of Missouri

(February 11, 2020) ............... App. 33

Appendix E

Opinion of the United States

Court of Appeals for the Eighth

Circuit

(August 12, 2019) ................... App. 35

Appendix F

Order of the United States

District Court for the Western

District of Missouri

(February 9, 2018) ................. App. 42

Appendix G

Order of the United States Court

of Appeals for the Eighth Circuit

Denying

Rehearing

and

Rehearing En Banc

(July 14, 2022)........................ App. 56

viii

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. Speers,

473 F.3d 989 (9th Cir. 2007) .................................. 25

Anderson v. Creighton,

483 U.S. 635 (1987) .......................................... 19, 32

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .......................................... 11, 19

Baxter v. Bracey,

140 S. Ct. 1862 (2020) ............................................ 31

Bouggess v. Mattingly,

482 F.3d 886 (6th Cir. 2007) .................................. 25

Brosseau v. Haugen,

543 U.S. 194 (2004) .................................... 10, 19, 29

Bryan v. MacPherson,

630 F.3d 805 (9th Cir. 2010) .................................. 27

Coffin v. Brandau,

642 F.3d 999 (11th Cir. 2011) ................................ 18

Cole Estate of Richards v. Hutchins,

959 F.3d 1127 (8th Cir. 2020) ................................ 23

Cope v. Cogdill,

3 F.4th 198 (5th Cir. 2021) .................................... 13

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005) ...................... 22, 24, 25

Dean ex rel. Harkness v. McKinney,

976 F.3d 407 (4th Cir. 2020) .................................. 16

Dennis v. City of Phila.,

19 F.4th 279 (3d Cir. 2021) .............................. 15, 17

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) ........................................ 25, 29

Fancher v. Barrientos,

723 F.3d 1191 (10th Cir. 2013) .............................. 26

Goffin v. Ashcraft,

977 F.3d 687 (8th Cir. 2020) ............................ 12, 13

Gordon v. Bierenga,

20 F.4th 1077 (6th Cir. 2021) ................................ 14

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .......................................... 10, 32

Henry v. Purnell,

652 F.3d 524 (4th Cir. 2011) .................................. 25

Hope v. Pelzer,

536 U.S. 730 (2002) .......................................... 11, 19

Irish v. Fowler,

979 F.3d 65 (1st Cir. 2020) .................................... 17

Jamison v. McClendon,

476 F. Supp. 3d 386 (S.D. Miss. 2020) .................. 31

Jefferson v. Lias,

21 F.4th 74 (3d Cir. 2021) ................................ 34, 35

Kane v. Barger,

902 F.3d 185 (3d Cir. 2018) ............................. 16, 17

Kedra v. Schroeter,

876 F.3d 424 (3d Cir. 2017) ................................... 17

Kenjoh Outdoor, LLC v. Marchbanks,

23 F.4th 686 (6th Cir. 2022) .................................. 14

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ................................ 10, 34, 35

Malley v. Briggs,

475 U.S. 335 (1986) ................................................ 31

McKinney v. City of Middletown,

49 F.4th 730 (2d Cir. 2022) ........................ 30, 31, 32

Mitchum v. Foster,

407 U.S. 225 (1972) ................................................ 34

Moore v. Indehar,

514 F.3d 756 (8th Cir. 2008) .................................. 25

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) .................................. 13

Morton v. Kirkwood,

707 F.3d 1276 (11th Cir. 2013) .............................. 26

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................... 34

Nance v. Sammis,

586 F.3d 604 (8th Cir. 2009) ............ 9, 12, 22, 23, 24

Ngo v. Storlie,

495 F.3d 597 (8th Cir. 2007) ............ 9, 12, 22, 23, 24

Orn v. City of Tacoma,

949 F.3d 1167 (9th Cir. 2020) ................................ 17

Pearson v. Callahan,

555 U.S. 223 (2009) .......................................... 10, 35

Pierson v. Ray,

386 U.S. 547 (1967) ................................................ 32

Rahn v. Hawkins,

73 F. App’x 898 (8th Cir. 2003) ................. 22, 24, 25

Reichle v. Howards,

566 U.S. 658 (2012) ................................................ 10

Sampson v. Cnty. of Los Angeles by & through Los

Angeles Cnty. Dep’t of Child. & Fam. Servs.,

974 F.3d 1012 (9th Cir. 2020) .......................... 31, 34

Strand v. Minchuk,

910 F.3d 909 (7th Cir. 2018) ............................ 15, 16

Taylor v. Riojas,

141 S. Ct. 52 (2020) ................................................ 29

Tennessee v. Garner,

471 U.S. 1 (1985) ........................ 9, 12, 20, 21, 22, 25

Thompson v. Hubbard,

257 F.3d 896 (8th Cir. 2001) .................. 9, 12, 26, 28

Tolan v. Cotton,

572 U.S. 650 (2014) ...................................... 4, 26, 28

Torres v. City of Madera,

648 F.3d 1119 (9th Cir. 2011) .......................... 17, 25

Whitfield v. Melendez-Rivera,

431 F.3d 1 (1st Cir. 2005) ...................................... 25

Williams v. Strickland,

917 F.3d 763 (4th Cir. 2019) .................................. 16

Young v. Brady,

793 F. App’x 905 (11th Cir. 2019).......................... 17

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) ................ 11, 13, 18, 35

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ........................................ 3, 31

xii

Constitutional and Statutory Provisions

U.S. Const. amend. IV .................... 1, 3, 4, 7, 22-25, 34

28 U.S.C. § 1254(1) ...................................................... 3

42 U.S.C. § 1983 ...................................... 2, 4, 7, 30, 34

Other Authorities

John C. Jeffries, Jr., What’s Wrong with Qualified

Immunity?, 62 FLA. L. REV. 851 (2010) ................. 18

Karen Blum, Section 1983 Litigation: The Maze, the

Mud, and the Madness,

23 WM. & MARY BILL RTS. J. 913 (2015)................ 18

Joanna C. Schwartz, After Qualified Immunity,

120 COLUM. L. REV. 309 (2020) ........................ 33, 35

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. REV. 885 (2014)........................... 32, 33

Joanna C. Schwartz, The Case Against Qualified

Immunity,

93 NOTRE DAME L. REV. 1797 (2018) ............... 32, 33

INTRODUCTION

Officer William Thompson shot and killed Ryan

Stokes for no legitimate reason. The record evidence,

viewed in the light most favorable to Petitioners,

confirms that Mr. Stokes was never a danger to officer

safety. He was not armed. He was not threatening any

police officers. He was not suspected of a violent crime.

He was not resisting arrest. And he did not disobey

any officer commands. Instead, he voluntarily raised

his hands above his waist in an effort to surrender

peacefully to a nearby officer. That officer correctly

recognized that Mr. Stokes was not a genuine threat,

so he re-holstered his gun. Officer Thompson made a

different choice. Without giving any warning or

announcing his presence at the scene, he immediately

resorted to deadly violence and gunned down Mr.

Stokes from behind. That conduct was not reasonable;

it was reckless and flatly inconsistent with the Fourth

Amendment’s prohibition against excessive force.

Officer Thompson should be held accountable for

his patently unconstitutional conduct. But the Eighth

Circuit concluded that he was immune from liability

under the doctrine of qualified immunity. In

particular, the Court of Appeals reasoned that Officer

Thompson did not violate “clearly established” law

because there was no indistinguishable precedent

precisely mirroring the facts of this case.

That is not the law. This Court’s precedents do not

demand a case directly on point to satisfy the clearly

established requirement. Rather, Petitioners only had

to show that existing precedent put Officer Thompson

on “fair notice” that his conduct was unconstitutional.

Petitioners satisfied that burden. There can be little

doubt that, at the time he killed Mr. Stokes, Officer

Thompson had fair notice that police officers may not

shoot (without warning) non-violent, unarmed

individuals in the back who are surrendering and pose

no threat to officer safety.

In holding otherwise, the Eighth Circuit imposed a

far too demanding clearly established standard,

faulting Petitioners for their inability to identify a

prior case matching the facts of this one. By applying

that mutated standard, the Court of Appeals departed

from this Court’s settled precedent and deepened an

acknowledged split among the Circuits regarding the

proper standard federal courts must use to ascertain

whether the law is clearly established for purposes of

qualified immunity. Left undisturbed, the decision

below will sow further chaos among the Circuits. This

Court should grant certiorari to resolve that confusion

and ensure the fair and consistent application of

qualified immunity. Alternatively, the Court should

summarily reverse the Eighth Circuit’s clearly

erroneous decision.

Beyond exacerbating a conflict among the Circuits

and misconstruing this Court’s precedent, the decision

below also exposes many of the flaws infecting the

judge-made doctrine of qualified immunity. As a

growing number of scholars and jurists have

recognized, modern qualified immunity jurisprudence

has gone too far. It is unmoored from the statutory text

of Section 1983; it is divorced from the common law;

and it does not achieve its putative policy objectives.

Perhaps most troubling, it prevents individuals from

obtaining redress for violations of their Constitutional

rights. Justice Thomas has invited the Conference to

“reconsider [its] qualified immunity jurisprudence” in

“an appropriate case.” Ziglar v. Abbasi, 137 S. Ct.

1843, 1872 (2017) (opinion concurring in part and

concurring in the judgment). This is that case. The

petition should be granted.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals is reported at

35 F.4th 1111 and is reproduced at Pet.App.1-10. The

District Court’s order granting summary judgment is

not officially reported but can be found at 2020 WL

641728 and is reproduced at Pet.App.13-32. The

unpublished order of the Court of Appeals denying the

petition for panel rehearing and rehearing en banc is

available at 2022 WL 2733403 and is reproduced at

Pet.App.56-57.

JURISDICTION

The Eighth Circuit entered its judgment on May

31, 2022. Pet.App.11-12. On July 14, 2022, the Eighth

Circuit denied Petitioners’ timely petition for panel

rehearing and rehearing en banc. Pet.App.56-57. On

October 5, 2022, Justice Kavanaugh extended the time

for filing a petition for certiorari to December 11, 2022.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the U.S. Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

U.S. Const. amend. IV.

Section 1983 provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress … .

42 U.S.C. § 1983.

STATEMENT OF THE CASE

A. Factual Background

At summary judgment, this Court must “view the

evidence … in the light most favorable to” the

nonmovant (here, Petitioners) “with respect to the

central facts of this case.” Tolan v. Cotton, 572 U.S.

650, 657 (2014) (per curiam). Construing the facts in

the light most favorable to Petitioners, and drawing all

inferences in their favor, a jury could find that the

following events occurred on the night of Mr. Stokes’s

death.

Around midnight on July 27, 2013, Ryan Stokes

and two of his friends (Kenneth Cann and Ollie

Outley) drove in separate cars to the Kansas City

Power & Light entertainment district. J.A. 32-33, 30305. Mr. Stokes rode in the passenger seat of Mr.

Outley’s red Monte Carlo. J.A. 32, 305, 522. Upon their

arrival at the entertainment district, Mr. Outley

parked in a nearby parking lot. J.A. 523.

Mr. Outley kept a handgun that he legally owned

secured in a “makeshift holster” in his car, between

the center console and the driver’s seat. J.A. 1494. Mr.

Outley left the gun in the car, and both he and Mr.

Stokes were unarmed during their night out. J.A.

1494, 1497-98.

At some point that evening, an intoxicated man

falsely accused Mr. Outley of stealing his cell phone,

which provoked a public disturbance. J.A. 61, 525-26,

1380-81, 1531. In response, Officer Albert Villafain

sprayed a large can of pepper spray to disperse the

gathering crowd. J.A. 310, 1532-33, 2064, 2157.

Incapacitated by the pepper spray, Mr. Outley

handed his car keys to Mr. Stokes to “[g]o get the car.”

J.A. 311, 1450, 1568-69. Mr. Stokes and Mr. Cann

made their way to the parking lot where Mr. Outley’s

car was parked. J.A. 40, 62, 2050. Neither Mr. Stokes

nor Mr. Cann was involved in the alleged theft that

prompted the public disturbance; neither man

resembled Mr. Outley; and neither man had been

accused of any threatening conduct or violent crime.

J.A. 525-26, 1507-08, 1512-13. Despite this, and based

solely on the drunk man’s false accusation, Officer

Villafain instructed fellow Officer Daniel Straub to “go

stop” Mr. Stokes and Mr. Cann, and then sent a radio

dispatch to other officers about the foot chase. J.A.

325, 2114, 2164. Officer Villafain’s radio dispatch

provided a description of the two men but did not

suggest that either man was armed or dangerous. J.A.

2097, 2114, 2164-66.

Officer Straub followed Mr. Stokes into the parking

lot and stopped him near Mr. Outley’s car. J.A. 205052, 2069. Mr. Stokes walked toward the vehicle but did

not enter the car or retrieve anything from inside;

instead, he turned toward Officer Straub, voluntarily

put his hands up above his waist, and surrendered

peacefully. See Pet.App.4; J.A. 317, 2052-54, 2064.

Realizing that Mr. Stokes posed no threat, Officer

Straub re-holstered his firearm, while Mr. Stokes

stood directly in front of him. See J.A. 251, 997, 2064.

Meanwhile, Officer Thompson—a desk officer who

had not been on regular patrol duty for nearly a

decade—had received Officer Villafain’s dispatch that

officers were pursuing two men suspected of theft.

Pet.App.36; J.A. 2093-96. Seconds later, Officer

Thompson saw Mr. Stokes run into the parking lot, go

to the red Monte Carlo, turn toward Officer Straub,

and then raise his hands past his waist. Pet.App.4, 19;

J.A. 325-26, 2052, 2098, 2105. Officer Thompson failed

to give a warning or announce his presence, nor did he

make any attempt to deescalate the situation by giving

verbal commands; he immediately resorted to deadly

force, and fired three shots at Mr. Stokes from behind,

hitting him twice. See Pet.App.16, 22; J.A. 325-27, 331,

2055-56, 2099, 2171, 2178. At the time of the shooting,

Mr. Stokes was illuminated by the headlights of the

red Monte Carlo, and was in plain view of Officer

Thompson. J.A. 1524, 2061, 2103, 2156, 2166.

Mr. Stokes did not have a gun, was surrendering to

Officer Straub, and was not threatening any of the

responding officers. Pet.App.4, 22; J.A. 325, 2052.

After hearing the gunshots that killed Mr. Stokes,

Officer Straub re-drew his firearm and aimed it in the

direction of Officer Thompson because he was

unaware of Officer Thompson’s presence. J.A. 326,

2056, 2064. Officer Straub testified that it would have

been “feasible under the circumstances” confronting

the responding officers “to give [Mr. Stokes] verbal

commands before using deadly force.” J.A. 2056. But

Officer Straub never heard Officer Thompson give

verbal commands before killing Mr. Stokes. J.A. 325,

2055. Officer Straub further testified that he was

“shocked” that Mr. Stokes “was shot.” J.A. 2058.

Mr. Stokes ultimately succumbed to his gunshot

wounds and died. Pet.App.16. 1

B. Procedural History

1. Petitioners—surviving family members of Mr.

Stokes—sued Respondents Officer Thompson, the

Kansas City, Missouri Board of Police Commissioners,

and its individual members under 42 U.S.C. § 1983 in

the United States District Court for the Western

District of Missouri. Petitioners alleged, among other

claims, that Respondents used excessive force against

Mr. Stokes in violation of the Fourth Amendment.

Respondents moved for summary judgment on the

ground that they were immune from suit. Pet.App.4255. The District Court originally denied the motion in

relevant part, concluding that Officer Thompson was

not entitled to qualified immunity because “a genuine

issue of material fact exist[ed] as to whether [Officer

Thompson’s] use of force was reasonable such that a

violation of a constitutional right occurred.”

Pet.App.49.

Specifically,

the

District

Court

determined that “genuine issues of material facts exist

1 While Mr. Stokes was dying, Officer Thompson entered Mr. Out-

ley’s car and claimed to have recovered a gun from the vehicle.

J.A. 2112.

concerning whether Mr. Stokes posed an immediate

threat to officers or others and whether he was

resisting arrest.” Pet.App.48.

2. On interlocutory appeal, the United States

Court of Appeals for the Eighth Circuit vacated the

District Court’s judgment and remanded the case for a

“second look.” Pet.App.39. The Eighth Circuit

instructed the District Court to “identify[] the

plaintiff-friendly version of the disputed facts” and

then “evaluate whether [Officer] Thompson … violated

clearly established law when he shot Stokes.”

Pet.App.39-40.

3. On remand, the District Court concluded that

Officer Thompson was entitled to qualified immunity

and granted summary judgment in his favor.

Pet.App.14. The court held that Officer Thompson did

not violate Mr. Stokes’s constitutional rights and that,

even if he did, the right at issue was not clearly

established. Pet.App.24-29. In doing so, the District

Court incorrectly credited much of Officer Thompson’s

version of the facts, including his testimony that he

observed Mr. Stokes with a gun, believed Mr. Stokes

was armed, and thought Mr. Stokes was going to

ambush other officers. See Pet.App.26.

4. Petitioners appealed, and the Eighth Circuit

affirmed the District Court’s ruling that Officer

Thompson was entitled to qualified immunity.

Pet.App.2. Skipping “directly to the second” prong of

the qualified immunity analysis, the panel held that

Eighth Circuit precedent was not clear enough to

establish that Officer Thompson’s conduct—shooting

an unarmed, non-threatening, surrendering man in

the back without warning—was unconstitutional. See

Pet.App.5-8. To support that conclusion, the Court of

Appeals relied exclusively on its prior decision in

Thompson v. Hubbard, 257 F.3d 896, 898 (8th Cir.

2001). Pet.App.6-7. Notably, the panel admitted that

Hubbard was materially different from this case,

including because Hubbard involved a “much more

serious crime,” and because the officer in Hubbard,

unlike Officer Thompson, issued a command before

using deadly force. See id. Overlooking these critical

differences, the panel determined that Hubbard

created enough uncertainty to justify qualified

immunity. Id.

In reaching that conclusion, the panel strained to

distinguish several relevant precedents from this

Court and the Eighth Circuit on the ground that the

facts of those cases were not similar enough to those

confronting Officer Thompson. Id. (attempting to

distinguish Tennessee v. Garner, 471 U.S. 1, 4 & n.2

(1985); Nance v. Sammis, 586 F.3d 604, 607 (8th Cir.

2009); and Ngo v. Storlie, 495 F.3d 597, 600-01 (8th

Cir. 2007)). Because of minor factual variations in

those cases, the Eighth Circuit concluded that the

unconstitutionality of Officer Thompson’s conduct was

not sufficiently clear based on existing precedent.

Pet.App.7-8.

5. The Eighth Circuit denied Petitioners’ timely

petition for panel rehearing and rehearing en banc.

Pet.App.56-57.

REASONS FOR GRANTING THE WRIT

I. THE COURT SHOULD GRANT CERTIORARI

TO RESOLVE AN ACKNOWLEDGED CIRCUIT SPLIT ON THE PROPER APPLICATION OF THE QUALIFIED IMMUNITY DOCTRINE

A. The Eighth Circuit’s Decision Deepens

Division Among the Courts of Appeals

on What Level of Factual Similarity to

Prior Case Law Is Needed to Show

Clearly Established Law

Qualified immunity shields law enforcement

officers from civil damages liability only when their

conduct “‘does not violate clearly established statutory

or constitutional [law].’” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). But what exactly does it mean

for the law to be “clearly established”?

In addressing that question, this Court has

enunciated a few (sometimes competing) directives.

First, the clearly established requirement is satisfied

if it is “sufficiently clear that every reasonable official

would [have understood] that what he is doing violates

that right.” Reichle v. Howards, 566 U.S. 658, 664

(2012) (quotation marks omitted). Second, the

principal focus of the clearly established requirement

must be “on whether the officer had fair notice that

[their] conduct was unlawful.” Brosseau v. Haugen,

543 U.S. 194, 198 (2004) (per curiam). Third, “general

statements of the law are not inherently incapable of

giving fair and clear warning to officers.” Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam).

Fourth, courts must take care “not to define clearly

established law at a high level of generality.” Ashcroft

v. al-Kidd, 563 U.S. 731, 742 (2011). Lastly, the clearly

established requirement does “not require a case

directly on point.” Id. at 741; see Hope v. Pelzer, 536

U.S. 730, 741 (2002) (holding that “cases involving

‘fundamentally similar’ facts … are not necessary” to

meet clearly established requirement).

For far too long, the Courts of Appeals have

struggled (and failed) to operationalize these

somewhat conflicting guidelines in a consistent,

uniform manner. Instead, the Circuits have adopted

dramatically different approaches in determining

whether the law is clearly established. As one federal

appellate judge has recently recognized, “courts of

appeals are divided—intractably—over precisely what

degree of factual similarity must exist” to satisfy the

clearly established requirement. Zadeh v. Robinson,

928 F.3d 457, 479 (5th Cir. 2019) (Willett, J.,

concurring in part, dissenting in part).

That circuit split is real and deep. Several Courts

of Appeals—including the Fifth, Sixth, and Eighth

Circuits—have demanded an impossibly high showing

of factual similarity to satisfy the clearly established

requirement. See infra Part I.A.1. By contrast, many

other Circuits—including the First, Third, Fourth,

Seventh, Ninth, and Eleventh Circuits—have held

that the law can be clearly established by prior case

law even if those cases have some factual differences

from the case at hand. See infra Part I.A.2. As

explained below, the decision below further

entrenches this intractable conflict among the

Circuits.

1. The Fifth, Sixth, and Eighth

Circuits Require Plaintiffs to

Identify a Prior Case Involving

the Same Factual Scenario to

Satisfy the Clearly Established

Prong

In the decision below, the Eighth Circuit held that

the law was not clearly established by prior case law

because those cases arose in slightly different factual

circumstances. Pet.App.6-7. For instance, the Eighth

Circuit distinguished this Court’s decision in Garner,

solely because it involved an officer who shot a “minor

suspect … climbing a fence.” Pet.App.7. The Eighth

Circuit also dismissed as inapposite its earlier

decisions in Nance and Ngo—the former because

Nance concerned a confrontation with “two children

after dark who were walking” and the latter because

Ngo “involved an officer-on-officer shooting, not an

officer who fired at a fleeing suspect.” Pet.App.7. In the

very same breath, however, the panel rested its ruling

on a single Eighth Circuit case (Hubbard)—even

though the panel admitted that there were “some

differences” between Hubbard and this case.

Pet.App.6. In conducting this lopsided analysis, the

Eighth Circuit imposed a heightened burden on

Petitioners by effectively requiring them to identify

existing precedent involving the same factual scenario

at issue in this case. Pet.App.7-8.

This case is not the first time the Eighth Circuit

has applied this supercharged clearly established

standard. In Goffin v. Ashcraft, the Eighth Circuit

granted qualified immunity to an officer who shot a

fleeing arrestee even though another officer had

searched the arrestee and found no weapons. 977 F.3d

687, 691-92 (8th Cir. 2020). The Eighth Circuit

reasoned that the officer did not violate clearly

established law because the plaintiff could point to no

prior case where “a pat down that recovered nothing

eliminated [an officer’s] objectively reasonable belief

that [an arrestee] was armed and dangerous.” Id. at

692. As Judge Kelly noted in dissent, the majority

“relie[d] on the precise scenario of a suspect fleeing

after a pat down that revealed no weapons to conclude

that Ashcraft violated no clearly established law”—

even though the “novel fact” of a pat down “d[id] not

render inapplicable the clearly established law that

officers may not use deadly force unless the suspect

poses a significant threat of death or serious physical

injury to the officers or others.” Id. at 696 (Kelly, J.,

dissenting).

The Eighth Circuit does not stand alone in its

draconian application of the clearly established

requirement. The Fifth and Sixth Circuits, too,

mistakenly demand prior case law with identical (or

nearly identical) facts to overcome qualified immunity.

For instance, in Morrow v. Meachum, the Fifth

Circuit held that a plaintiff “must make an

extraordinary showing” to satisfy the clearly

established requirement. 917 F.3d 870, 876 (5th Cir.

2019). That “extraordinary showing” requires the

plaintiff to identify clearly established law with a

heightened degree of “specificity and granularity.” Id.

at 874-75. Thus, in the Fifth Circuit, a plaintiff “loses

[if] no previous panel has ever held th[e] exact sort of

[conduct at issue] unconstitutional.” Zadeh, 928 F.3d

at 479 (op. of Willett, J.); see Cope v. Cogdill, 3 F.4th

198, 218 (5th Cir. 2021) (Dennis, J., dissenting)

(faulting majority for “defin[ing] the clearly

established right in an overly narrow manner” and

requiring plaintiffs to “point to a case with virtually

identical facts”).

The Sixth Circuit follows the same rigid approach.

In Gordon v. Bierenga, the Sixth Circuit held that a

law is not clearly established unless the plaintiff can

point to prior case law meeting a heightened “level of

‘specificity.’” 20 F.4th 1077, 1085 (6th Cir. 2021).

Although the court in Gordon acknowledged that

existing precedent was “similar in some ways,” it

found that the case law was not “similar enough to the

facts of this case to pass muster under the controlling

standards for defining ‘clearly established’ law.” Id. at

1079; see Kenjoh Outdoor, LLC v. Marchbanks, 23

F.4th 686, 695 (6th Cir. 2022) (granting qualified

immunity “because not a single judicial opinion ha[s]

held the official’s action unconstitutional” (quotation

marks omitted)).

At bottom, the Fifth, Sixth, and Eighth Circuits

have erected an impossibly high barrier for plaintiffs

seeking to vindicate their constitutional rights in the

face of qualified immunity. Under that unforgiving

standard, Petitioners were obligated to identify prior

case law involving the same facts at issue in this case:

a desk officer recklessly gunned down an unarmed

man from behind without any warning, even though

that man posed no threat, was illuminated by car

headlights (in the officer’s plain view), and raised his

hands above his waist to peacefully surrender.

2. The First, Third, Fourth, Seventh,

Ninth, and Eleventh Circuits Do

Not Require Plaintiffs to Identify

a Prior Case Involving the Same

Factual Scenario

On the other side of the split, at least six other

Circuits have held that the law can be clearly

established even if prior case law is not an exact

match. In those jurisdictions, a constitutional right is

clearly established without factually indistinguishable

precedent so long as prior case law puts the officer on

fair notice that his conduct is unconstitutional. See,

e.g., Dennis v. City of Phila., 19 F.4th 279, 288 (3d Cir.

2021) (“[W]e do not require that prior precedent have

indistinguishable facts.”).

The Seventh Circuit’s decision in Strand v.

Minchuk is illustrative. 910 F.3d 909 (7th Cir. 2018).

There, the Seventh Circuit explained that, although

courts must define the constitutional right at issue

with some “specificity,” the “demand for specificity is

not unyielding or bereft of balance.” Id. at 915. As the

Seventh Circuit put it, “assessing whether the law is

clearly established does not require locating ‘a case

directly on point’” since police officers “can still be on

notice that their conduct violates established law even

in novel factual circumstances.” Id. Applying those

principles, the Seventh Circuit held that an officer—

who used deadly force against a subdued suspect who

had surrendered, stood with his hands in the air, and

posed no threat to the officer—was not entitled to

qualified immunity. Id. at 917-18. In support of that

conclusion, the court reasoned that it was clearly

established “for decades” that a surrendering suspect

“has the right not to be seized by deadly or significant

force.” Id. at 918. Like the officer in Strand, Officer

Thompson violated clearly established law when,

without warning, he unleashed deadly force against

an unarmed man who was trying to surrender in

Officer Thompson’s line of sight, stood with his hands

above his waist, and posed no objective threat to any

of the officers at the scene. Given these similarities,

Petitioners would have prevailed in the Seventh

Circuit.

The same would hold true in many other Circuits.

For example, like the Seventh Circuit, the Fourth

Circuit has held that an officer is “not absolved of

liability solely because the court has not adjudicated

the exact circumstances of his case.” Dean ex rel.

Harkness v. McKinney, 976 F.3d 407, 419 (4th Cir.

2020). Even though “there [was] no case directly on

point factually to inform [the court’s] analysis” in that

case, the court nonetheless concluded that the “core

constitutional principles set forth in numerous cases

lead … to the conclusion that [the plaintiff’s] right was

clearly established.” Id. at 418-19. Because the officer

in Dean had sufficient notice that his conduct was

unconstitutional, the Fourth Circuit held that he did

not deserve qualified immunity. Id. at 419; see

Williams v. Strickland, 917 F.3d 763, 770 (4th Cir.

2019) (noting that courts “need not—and should not—

assume that government officials are incapable of

drawing logical inferences” in determining clearly

established law).

Likewise, in the Third Circuit, a plaintiff need not

identify “a case directly mirror[ing] the facts at hand,

so long as there are sufficiently analogous cases that

should have placed a reasonable official … on notice

that his actions were unlawful.” Kane v. Barger, 902

F.3d 185, 195 (3d Cir. 2018) (quotation marks

omitted). As the Third Circuit explained, “‘it need not

be the case that the exact conduct has previously been

held unlawful so long as the contours of the right are

sufficiently clear’” to the officer. Id. at 194-95 (quoting

Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)).

Applying that standard, the Third Circuit held that

the officer had fair notice based on case law from the

Third Circuit and other Courts of Appeals establishing

that his alleged misconduct was unconstitutional. Id.;

see Dennis, 19 F.4th at 288-89.

The First, Ninth, and Eleventh Circuits apply the

same rule in determining whether the law is clearly

established. See Irish v. Fowler, 979 F.3d 65, 76-77 (1st

Cir. 2020) (noting that this Court “has established that

cases involving materially similar facts are not

necessary to a finding that the law was clearly

established”); Orn v. City of Tacoma, 949 F.3d 1167,

1178 (9th Cir. 2020) (holding that a plaintiff need not

“identify prior cases that are ‘directly on point’”);

Torres v. City of Madera, 648 F.3d 1119, 1128-29 (9th

Cir. 2011). (holding that “the test of whether a right is

‘clearly established’” must not “be so narrow that the

immunity is transformed from one ‘qualified’ in nature

to one absolute” and that “[w]ere [the court] to require

such granular specificity … [it] would effectively

wrench of all meaning the Supreme Court’s

admonition that ‘officials can still be on notice that

their conduct violates established law even in novel

factual circumstances’”); Young v. Brady, 793 F. App’x

905, 908 (11th Cir. 2019) (per curiam) (holding that

“[e]xact factual identity with a previously decided case

is not required” and affirming denial of qualified

immunity (quoting Coffin v. Brandau, 642 F.3d 999,

1013 (11th Cir. 2011)).

The upshot of this wall of circuit authority is

simple: the clearly established prong does not require

plaintiffs to embark upon a wild goose chase in search

of a prior case involving virtually identical facts (as the

Fifth, Sixth, and Eighth Circuits have held). To the

contrary, a plaintiff need only demonstrate that prior

case law gave the officer fair notice that his conduct

fell outside the bounds of the Constitution.

As the foregoing discussion reveals, “determining

whether an officer violated ‘clearly established’ law

has proved to be a mare’s nest of complexity and

confusion.” John C. Jeffries, Jr., What’s Wrong with

Qualified Immunity?, 62 FLA. L. REV. 851, 852 (2010).

It is therefore unsurprising that “[t]he circuits vary

widely in approach” in defining the level of specificity

needed to show that the law is clearly established. Id.

Indeed, the disarray among the Circuits shows that

“the ‘clearly established’ standard is neither clear nor

established among our Nation’s lower courts.” Zadeh,

928 F.3d at 479 (op. of Willett, J.). Absent further

guidance from this Court, the Circuits will remain

“hopelessly conflicted” on that question. Karen Blum,

Section 1983 Litigation: The Maze, the Mud, and the

Madness, 23 WM. & MARY BILL RTS. J. 913, 925 (2015).

B. The Eighth

Incorrect

Circuit’s

Decision

addition

further

entrenching

acknowledged circuit split, the Eighth Circuit’s

decision is also wrong on the merits. As explained

above, the Eighth Circuit applied a heightened clearly

established standard by requiring Petitioners to

identify a case arising from the same factual

circumstances as this one. See supra Part I.A.1.

That approach flies in the face of this Court’s

precedent. Time and again, this Court has made clear

that it does “not require a case directly on point” to

find that the law was clearly established. E.g., alKidd, 563 U.S. at 741. To be sure, this Court has

instructed courts to frame the right “in light of the

specific context of the case,” Brosseau, 543 U.S. at 198,

but that does not mean that “an official action is

protected by qualified immunity unless the very action

in question has previously been held unlawful,”

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Rather, to be clearly established, a constitutional right

need only supply officers with “fair warning that their

alleged [conduct] … was unconstitutional.” Hope, 536

U.S. at 741. Thus, officers “can still be on notice that

their conduct violates established law even in novel

factual circumstances.” Id.

The Eighth Circuit’s heightened standard collides

with these settled principles and reflects the “rigid,

overreliance on factual similarity” that this Court has

rejected. Id. at 742. Under this Court’s precedent,

Petitioners had no obligation to identify an apples-toapple match in prior case law to satisfy the clearly

established requirement. All that Petitioners had to do

was show that existing precedent put Officer

Thompson on sufficient notice that his conduct was

unconstitutional.

Petitioners met that burden. Contrary to the

Eighth Circuit’s determination, any reasonable officer

in Officer Thompson’s shoes was on fair notice that it

was unconstitutional to repeatedly shoot—from

behind and without giving a warning—an unarmed

man who raised his hands above his waist to

surrender, was illuminated by the headlights of a car,

and posed no objective threat or danger to responding

officers. Notably, Officer Straub accurately recognized

that Mr. Stokes did not present a threat and reholstered his firearm. In fact, Officer Straub testified

that it would have been feasible to give Mr. Stokes

verbal commands before deploying deadly force; that

he did not hear Officer Thompson give any commands;

and that he was “shocked” that Mr. Stokes had been

shot. Existing precedent from this Court, the Eighth

Circuit, and other Circuits firmly establishes that

Officer Thompson’s “shoot first, think later” behavior

was

objectively

unreasonable

under

these

circumstances.

This Court’s decision in Garner is particularly

instructive. In Garner, a police officer confronted an

unarmed, non-threatening young man who was fleeing

the scene of a crime. 471 U.S. at 3-4, 10-11. After the

police officer announced himself and instructed the

felony suspect to “halt,” the suspect started to climb

over a fence. Id. at 3-4. Fearing that the young man

would escape, the officer shot the suspect in the back

of the head and killed him. Id. at 4. Concluding that

the officer’s conduct was objectively unreasonable, the

Court handed down a straightforward rule: an officer

“may not seize an unarmed, non-dangerous suspect by

shooting him dead.” Id. at 11.

Garner should have put Officer Thompson on

notice that his actions were unconstitutional. In fact,

this case is an easier call than Garner. In Garner, the

police officer announced himself, told the felony

suspect to stop, and shot him only after he disobeyed

that order. Here, no one heard Officer Thompson

announce his presence or give any orders or warnings,

and Mr. Stokes was trying to surrender peacefully—

not flee the scene. If the officer in Garner acted

unreasonably when he shot and killed a nonthreatening, unarmed felony suspect who disobeyed

officer commands and tried to flee the scene, then it

follows a fortiori that Officer Thompson’s conduct was

objectively unreasonable when, without giving any

verbal commands, he repeatedly shot in the back a

non-threatening, unarmed individual who was

compliant and was trying to surrender to another

responding officer.

The Eighth Circuit gave short shrift to Garner.

Because that case involved a “minor suspect” who was

“busy climbing a fence,” the panel believed it “did not

involve the same level of potential danger.” Pet.App.7.

But that reasoning does not withstand scrutiny. The

Eighth Circuit’s suggestion that “minor suspects”

categorically pose less of a threat to officers finds zero

support in Garner. Nothing in Garner hinged on the

suspect’s minor status. That is for good reason: the

officer in Garner actually believed the suspect “was 17

or 18 years old.” 471 U.S. at 3-4. At any rate, the Court

in Garner focused on whether the suspect “posed [an]

immediate threat to the officer” or “to others”—not on

how old he was. Id. at 11.

Nor does it matter that the suspect in Garner

attempted to flee by climbing a fence. If anything, that

fact cuts strongly in Petitioners’ favor. Unlike the

fleeing suspect in Garner, who disobeyed the officer’s

instruction to “halt,” Mr. Stokes attempted to

surrender to Officer Straub with his hands raised.

There can be little doubt that a compliant,

surrendering, unarmed man presents a far lower risk

of danger to public and officer safety than a fleeing

felony suspect who disregards an officer’s command

and attempts to scale a fence. Based on Garner, Officer

Thompson should have known that his conduct

exceeded the bounds of the Fourth Amendment.

But even if Garner alone did not clearly establish

the unconstitutionality of Officer Thompson’s conduct,

several Eighth Circuit cases confirm that his immediate resort to deadly force was objectively unreasonable. See, e.g., Ngo, 495 F.3d at 601-03; Nance, 586 F.3d

at 610-11; Rahn v. Hawkins, 73 F. App’x 898, 900-01

(8th Cir. 2003) (per curiam); Craighead v. Lee, 399

F.3d 954, 961-62 (8th Cir. 2005).

Take Ngo, for starters. In that case, a plainclothes

officer (Ngo) was shot by another officer (Storlie) who

responded to the scene. 495 F.3d at 600-01. After being

shot by a criminal suspect, Ngo radioed for help, fell to

his knees under a streetlight, and then tried to flag

down Storlie’s squad car by waving his arms over his

head with a gun in his hand. Id. Eventually, Storlie

saw Ngo, exited his squad car, and fired a machine gun

at Ngo “a split-second later” without providing a

warning or giving Ngo a chance to speak. Id. at 601.

The Eighth Circuit held that “a reasonable officer

arriving at the scene would have recognized that Ngo

did not pose an immediate threat to the officers’ safety

or the safety of others,” since Ngo had dropped his gun,

was not pointing it at the officers, was not reaching for

one, and was not actively resisting arrest. Id. at 603.

The Eighth Circuit further explained that Storlie’s

failure to give Ngo any warnings or take “an extra

moment to assess the situation add[ed] to the

unreasonableness” of his conduct. Id.

Ngo bears a striking resemblance to this case. Just

like Ngo, Mr. Stokes had no gun, was not reaching for

one, and was not actively resisting arrest. And just like

Storlie, Officer Thompson failed to provide any

warnings or take an extra few seconds to assess the

situation before repeatedly shooting Mr. Stokes in the

back.

Ignoring these similarities, the Court of Appeals

dismissed Ngo as a case about “an officer-on-officer

shooting, not an officer who fired at a fleeing suspect.”

Pet.App.7. But that sparse reasoning is doubly flawed.

For one thing, Mr. Stokes was not a “fleeing suspect”

at the time of the shooting—he was turning toward

Officer Straub with his empty hands raised above his

waist as he tried to voluntarily surrender. For another

thing, there is no reason to believe Ngo should be

confined solely to cases involving officer-on-officer

shootings; in fact, the Eighth Circuit recently applied

Ngo outside that context in affirming the denial of

qualified immunity in an excessive force case. See Cole

Estate of Richards v. Hutchins, 959 F.3d 1127, 113133 (8th Cir. 2020). The panel’s effort to distinguish

Ngo is thus unavailing.

Nance provided Officer Thompson with further

notice that his conduct exceeded the bounds of the

Fourth Amendment. In Nance, the Eighth Circuit held

that it was unreasonable for officers, without

identifying themselves as police or giving a warning,

to shoot a young boy who had a toy gun tucked in his

waistband and was raising his hands while trying to

comply with officer commands. 586 F.3d at 610-11. In

reaching that conclusion, the Eighth Circuit

acknowledged that officers were “in the area to watch

for armed suspects and knew they might encounter a

dangerous situation,” but found that insufficient to

permit the use of deadly force under the

circumstances. Id. at 611.

As Nance shows, Officer Thompson employed

excessive force in this case when, without giving a

warning, he fired multiple shots at an unarmed,

surrendering man who had his hands above his waist.

And yet, the panel here wrote off Nance as a case about

“children” who were “walking” during the police

encounter. Those distinctions make no difference. The

reasoning in Nance did not depend upon whether the

victims were children or adults, nor did the result turn

on whether those victims were “walking.” See id. at

609-12. If anything, the victims in Nance (one of whom

carried a toy gun) presented more of a perceived threat

to officer safety than Mr. Stokes, who was unarmed

and trying to surrender to Officer Straub.

Other Eighth Circuit cases reinforce the lessons of

Ngo and Nance. In Rahn v. Hawkins, for instance, the

Court held that officers violated clearly established

Fourth Amendment law when they shot a suspect who

raised his arms in surrender, complied with officer

commands to approach, and did not actively resist

arrest. 73 F. App’x at 900-01. Similarly, in Craighead

v. Lee, the Eighth Circuit said it was unreasonable

under clearly established law for an officer to shoot

without warning at two individuals who were

struggling with one another while one held a gun

overhead, pointing upward. 399 F.3d at 961-62 (citing

and collecting cases denying qualified immunity “in

which the plaintiff presented evidence to show that the

officer used deadly force under circumstances in which

the officer should have known that the person did not

present an immediate threat of serious physical injury

or death”). And in Moore v. Indehar, an officer violated

clearly established Fourth Amendment law when he

responded to a scene where shots had been fired and

shot an unarmed, fleeing suspect. 514 F.3d 756, 76263 (8th Cir. 2008). As in those cases, so too here. Like

the officers in Rahn, Craighead, and Moore, Officer

Thompson violated the Fourth Amendment when he

rushed to violence, failed to give any warnings, and

killed an unarmed, surrendering man.

If that were not enough, authority from other Circuits further confirms that Officer Thompson’s actions

were unconstitutional. See District of Columbia v.

Wesby, 138 S. Ct. 577, 589-90 (2018) (noting that

courts may look to persuasive authority in conducting

clearly established inquiry). For example, the Ninth

Circuit denied qualified immunity to an officer who

shot at a man who “had committed no serious offense,”

“posed no immediate threat” to officer or public safety,

and was not “‘attempting to evade arrest by flight.’”

Torres, 648 F.3d at 1127-28 (relying on Garner); see

Adams v. Speers, 473 F.3d 989, 993-94 (9th Cir. 2007)

(relying on Garner to deny qualified immunity to officer who, without warning or need to defend himself

or others, shot and killed a man).

Other circuits are in accord. See, e.g., Whitfield v.

Melendez-Rivera, 431 F.3d 1, 7-8 (1st Cir. 2005) (officers violated clearly established law when they shot unarmed, fleeing suspect from behind); Henry v. Purnell,

652 F.3d 524, 533-36 (4th Cir. 2011) (en banc) (denying

qualified immunity to officer who shot fleeing non-felony misdemeanant who was not armed, threatening,

or dangerous); Bouggess v. Mattingly, 482 F.3d 886,

888-89, 892-95 (6th Cir. 2007) (officer should have

known his actions violated clearly established rights

when, without warning, he shot from behind an arrestee who struggled with the officer to flee, but never

drew weapon or uttered threatening remarks);

Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir.

2013) (officer violated clearly established law when he

continued shooting at suspect who presented no danger to public); Morton v. Kirkwood, 707 F.3d 1276,

1282-84 (11th Cir. 2013) (officer violated clearly established law when he shot at unarmed man who, while

in a stationary car, raised his hands when he heard

officer shout at him). Taken together, this robust consensus of authority places the constitutionality of Officer Thompson’s actions beyond debate.

Against this mountain of precedent, the Eighth

Circuit offered just a single case in support of its ruling: Hubbard v. Thompson. Pet.App.6-7. Relying on

that decision, the panel held that Officer Thompson

faced a “similar choice here: use deadly force or face

the possibility that Stokes might shoot a fellow officer.” Id. But that is wrong, for at least two reasons.

First, the evidentiary record—viewed in the light

most favorable to Petitioners—provides scant support

for the panel’s unexplained assertion that Officer

Thompson had to weigh the risk that Mr. Stokes

“might shoot a fellow officer.” Pet.App.6. As this Court

has repeatedly admonished, on summary judgment,

“[t]he evidence of the nonmovant is to be believed, and

all justifiable inferences are to be drawn in his favor.”

Tolan, 572 U.S. at 651. Properly crediting Petitioners’

evidence, the record confirms that Mr. Stokes had no

gun, was not accused or suspected of a violent crime,

was not making any threatening moves or comments

toward any officer, was visible to Officer Thompson in

the headlights of the red Monte Carlo, and was

voluntarily surrendering to Officer Straub by raising

his hands above his waist. In these circumstances, no

reasonable officer would believe that Mr. Stokes posed

a threat.

In reaching a contrary conclusion, the Eighth Circuit declared that Mr. Stokes “opened and shut the

driver’s side door.” Pet.App.4, 7. But the Eighth Circuit’s reliance on that defendant-friendly fact was misplaced. Petitioners squarely disputed that fact in the

District Court, J.A. 317 (averring that “Ryan did not

open the car door”), and, as the District Court readily

acknowledged, Respondents never stated “as an uncontroverted material fact, that the door … was

opened or closed at any point,” Pet.App.26 n.3. In any

event, qualified immunity cannot be denied on this basis since Officer Thompson never expressly based his

use of deadly force on the alleged “opening and closing”

of the car door. J.A. 95-97, 2096.

Moreover, even if Officer Thompson held the (objectively unreasonable) belief that Mr. Stokes presented

a danger, he made no effort to give Mr. Stokes a warning or utilize non-deadly actions to deescalate the situation, which further reinforces the unreasonableness

of his conduct. See, e.g., Bryan v. MacPherson, 630

F.3d 805, 831 (9th Cir. 2010) (noting that “police are

required to consider [w]hat other tactics if any were

available” (quotation marks omitted)). For instance, as

Officer Straub’s testimony confirms, a reasonable officer should have resorted to verbal commands (e.g.,

“Police! Stop! Get on the ground!”) before opening fire

on Mr. Stokes. J.A. 2056.

At a minimum, the material facts and the reasonableness of Officer Thompson’s conduct should have

been resolved by a jury—not the court. That procedural misstep alone warrants summary reversal of the

Eighth Circuit’s judgment. See Tolan, 572 U.S. at 65760 (vacating Fifth Circuit’s judgment because it “improperly weigh[ed] the evidence and resolved disputed

issues in favor of the moving party” (quotation marks

omitted)).

Second, even setting aside the Eighth Circuit’s distortion of the facts, Hubbard is nothing like this case.

In Hubbard, the officer responded to the scene of an

armed robbery where shots had been fired. 257 F.3d at

898. Upon his arrival, the officer approached the suspect, who appeared to surrender but then turned to

flee. Id. After a foot chase through the city, the suspect

eventually jumped a fence and then moved his arms

toward his waist as though reaching for a weapon; after the officer yelled “stop,” the suspect’s arms continued to move, so the officer shot him. See id.

Nothing like that happened here, as even the panel

below acknowledged. Pet.App.6. Officer Thompson

was not responding to the scene of an armed robbery

where shots were fired; he did not have to chase Mr.

Stokes through city streets; and he did not tell Mr.

Stokes to “stop” or give him a warning. Mr. Stokes, for

his part, was not disobeying officer commands or visibly reaching for a weapon. Given these material differences, no reasonable officer would believe that Hubbard justified Officer Thompson’s reckless conduct.

***

Ultimately, the Eighth Circuit’s flawed application

of the clearly established test led it down the wrong

path. Instead of asking whether Officer Thompson had

fair notice that his conduct went too far (as required

by this Court’s case law), it faulted Petitioners for failing to identify a prior case arising in the same factual

circumstances. Had it applied the correct standard,

the Eighth Circuit would have reached the only result

supported by the facts and the law: Officer Thompson

violated clearly established law when he shot and

killed Mr. Stokes.

Given the Eighth Circuit’s clear departure from

this Court’s settled law (and the decisions of its sister

Circuits), this Court should either grant plenary review on this question presented or summarily reverse

the Eighth Circuit’s clearly erroneous decision. See

Brosseau, 543 U.S. at 197-98. 2

II. THE COURT SHOULD GRANT CERTIORARI

TO ABOLISH OR NARROW THE DOCTRINE

OF QUALIFIED IMMUNITY

Even if the Court does not grant review to clarify

the clearly established standard, it should seize on this

case as an opportunity to reconsider the scope and

ongoing viability of modern qualified immunity

doctrine. Judge Calabresi recently said it best: “As

scholars have made clear, and more and more judges

have come to recognize, qualified immunity cannot

2 Even assuming, arguendo, that prior case law did not clearly

establish the constitutional violation here, Officer Thompson’s

reckless actions make this the “‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though

existing precedent does not address similar circumstances.”

Wesby, 138 S. Ct. at 590; see Taylor v. Riojas, 141 S. Ct. 52, 53-54

(2020). No reasonable officer would believe it was lawful to fire

multiple shots in the back of an unarmed suspect who was trying

to surrender, without first announcing his presence, giving a

warning, trying to gather more information about the situation,

or trying to resort to non-deadly tactics.

withstand scrutiny.” McKinney v. City of Middletown,

49 F.4th 730, 756-57 (2d Cir. 2022) (Calabresi, J.,

dissenting) (appendix collecting cases and scholarship

critiquing qualified immunity). These scholars and

judges have offered numerous reasons why the Court’s

qualified immunity jurisprudence should be

recalibrated or jettisoned altogether. Id. Below, we

focus on three such reasons.

First, modern qualified immunity doctrine is a

judge-made invention that lacks any basis in the text

of Section 1983 or the common law. Second, as a

practical matter, the doctrine fails to achieve its

putative policy objectives. Third, qualified immunity

grants government officials a free pass to trample on

the Constitutional rights of individuals with impunity.

This case presents an ideal vehicle to address those

weighty concerns and reexamine the proper scope and

ongoing validity of qualified immunity.

A. Modern Qualified Immunity Doctrine

Is a Creature of Judicial Innovation

That Is Divorced from the Statutory

Text and Common Law

In 1871, Congress enacted Section 1983, which

empowers “any citizen of the United States or other

person within [its] jurisdiction” to sue a government

official who, while acting “under color of” state law,

violates their “rights, privileges, or immunities” under

federal law. 42 U.S.C. § 1983.

By its text, Section 1983 does not limit monetary

recovery only to those plaintiffs who can show a

violation of clearly established rights. In fact, as

Justice Thomas and other federal judges have

repeatedly and convincingly explained, the statute

“‘ma[kes] no mention of defenses or immunities,’” and

instead “applies categorically to the deprivation of

constitutional rights under color of state law.” Baxter

v. Bracey, 140 S. Ct. 1862, 1862-63 (2020) (Thomas, J.,

dissenting from denial of certiorari) (quoting Ziglar,

137 S. Ct. at 1870 (op. of Thomas, J.)); accord Sampson

v. Cnty. of Los Angeles by & through Los Angeles Cnty.

Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1025 (9th

Cir. 2020) (Hurwitz, J., concurring in part) (noting

that “the judge-made doctrine of qualified immunity

… is found nowhere in the text of § 1983”); Jamison v.

McClendon, 476 F. Supp. 3d 386, 404 (S.D. Miss. 2020)

(similar).

Because the text supplies no basis for qualified

immunity, the Court has sometimes tried to ground

the doctrine in the common law. See, e.g., Malley v.

Briggs, 475 U.S. 335, 342 (1986) (noting that,

“[a]lthough the statute on its face admits of no

immunities, we have read it ‘in harmony with general

principles of tort immunities and defenses rather than

in derogation of them’”).

But the common law of 1871 provides no

foundation for the modern doctrine of qualified

immunity—or its central pillar, the clearly established

requirement. See Baxter, 140 S. Ct. at 1864 (Thomas,

J., dissenting) (noting that qualified immunity

doctrine “is no longer grounded in the common-law

backdrop against which Congress enacted the 1871

Act”); City of Middletown, 49 F.4th at 757 (Calabresi,

J., dissenting) (noting that “scholars have

demonstrated that there was no common law

background that provided a generalized immunity

that was anything like qualified immunity”). In fact,

this Court itself has acknowledged that, when it

decided Harlow v. Fitzgerald, it “completely

reformulated qualified immunity along principles not

at all embodied in the common law.” Anderson, 483

U.S. at 645. So, even if qualified immunity had

common law roots at some point, this Court has since

left them in the rearview mirror.

B. Qualified Immunity Fails to Achieve Its

Asserted Policy Objectives

Unable to convincingly anchor qualified immunity

in the statutory text or the common law, this Court

and proponents of qualified immunity have often

justified the doctrine as good policy. This Court has

invoked two principal policy justifications for modern

qualified immunity doctrine: (1) protecting individual

officers from crushing financial liability, see Pierson v.

Ray, 386 U.S. 547, 555 (1967), and (2) relieving officers

and the courts of the heavy burdens and costs of

litigation, Harlow, 457 U.S. at 816-17. But, as leading

scholars have explained, those justifications (and

many others offered in defense of qualified immunity)

do not hold water. See, e.g., Joanna C. Schwartz, The

Case Against Qualified Immunity, 93 NOTRE DAME L.

REV. 1797, 1803-14 (2018) (debunking policy

justifications for qualified immunity).

First, qualified immunity is unnecessary to protect

individual officers from financial liability. See City of

Middletown, 49 F.4th at 757-58 (Calabresi, J.,

dissenting) (noting that “qualified immunity is largely

irrelevant to officers’ individual financial liability”). As

Professor Joanna Schwartz has persuasively shown,

officers almost never pay for their own legal defense or

for the damages awarded against them. See also

Joanna C. Schwartz, Police Indemnification, 89

N.Y.U. L. REV. 885, 902-37 (2014). That is so because,

in most jurisdictions, officials are indemnified by their

government employers, “even when they were

disciplined, terminated, or prosecuted for their

misconduct.” Id. at 937. Thus, the reality is that

“officers virtually never pay.” Schwartz, The Case

Against Qualified Immunity, supra at 1806.

Second, qualified immunity does not protect

officers or courts from the burdens of litigation. In this

case, the parties participated in extensive motion

practice, discovery (including more than 40

depositions), and two rounds of appeals because of

Respondents’ qualified immunity defense. Moreover,

empirical studies show that “qualified immunity

actually increases the time, cost, and complexity of

civil rights cases in which the defense is raised.”

Joanna C. Schwartz, After Qualified Immunity, 120

COLUM. L. REV. 309, 338 (2020). Why? Because modern

qualified immunity doctrine generates costly motion

practice and interlocutory appeals. Id. This is a case in

point: since its filing, the issue of qualified immunity

has been the subject of two District Court decisions,

two Eighth Circuit opinions, and multiple motions,

oppositions, appellate briefs, and a petition for

rehearing. If qualified immunity was meant to reduce

the burdens of litigation, it has done an especially poor

job in this case and many others. In reality,

eliminating qualified immunity would not overwhelm

officers and courts with burdensome litigation; rather,

doing so “would likely decrease the average cost and

time spent litigating and adjudicating civil rights

cases.” Id.

C. Modern Qualified Immunity Doctrine

Prevents Courts from Remedying

Constitutional Violations by Erecting

an “Absolute Shield” against Liability

As explained above, modern qualified immunity

jurisprudence cannot be justified by text, history, or

policy. That is reason enough to reexamine its

continued scope and validity. But there is more:

Qualified immunity is dangerous. It is corrosive to the

rule of law and renders the protections of the

Constitution “hollow.” See Mullenix v. Luna, 577 U.S.

7, 26 (2015) (Sotomayor, J., dissenting).

Section 1983 was designed “to interpose the federal

courts between the States and the people, as

guardians of the people’s federal rights.” Mitchum v.

Foster, 407 U.S. 225, 242 (1972). But courts are often

powerless to perform that role because qualified

immunity stands in their way. See Sampson, 974 F.3d

at 1025 (op. of Hurwitz, J.) (noting that qualified

immunity “doctrine requires—in this case and many

others—the dismissal of facially plausible claims of

constitutional violations because the right at stake

was not ‘clearly established’”).

That is especially true in the Fourth Amendment

excessive-force context. As Justice Sotomayor and

other jurists have persuasively noted, this Court has

in recent years “transform[ed] the doctrine into an

absolute shield for law enforcement officers, gutting

the deterrent effect of the Fourth Amendment”; it

“tells officers that they can shoot first and think later,

and it tells the public that palpably unreasonable

conduct will go unpunished.” Kisela, 138 S. Ct. at 1162

(Sotomayor, J., dissenting); see Jefferson v. Lias, 21

F.4th 74, 94 (3d Cir. 2021) (McKee, J., concurring)

(describing qualified immunity as a “practically

impenetrable wall”).

To make bad matters worse, modern qualified

immunity jurisprudence grants courts discretion to

skip to the clearly established prong without first

determining whether the relevant conduct violates the

Constitution. See Pearson, 555 U.S. at 236-37. The

“inexorable result” of that discretion is a disturbing

“Catch-22”: “Plaintiffs must produce precedent even as

fewer courts are producing precedent.” Zadeh, 928

F.3d at 479-80 (op. of Willett, J.); see Schwartz, After

Qualified Immunity, supra, at 318. And, in the Eighth

Circuit, plaintiffs must complete this task by finding

an indistinguishable needle in a haystack of prior of

cases. See supra Part I.A.

As this case demonstrates, modern qualified

immunity doctrine thwarts efforts to hold government

officials accountable under the law and must be

reconsidered. Mr. Stokes was not supposed to die in

2013. He was killed because a desk cop failed to

announce his presence, gave zero warnings, made no

effort to use non-deadly force, and repeatedly shot an

unarmed, non-threatening man in the back while that

man was trying to peacefully surrender. Because of

that officer’s irresponsible acts, Mr. Stokes’s family is

missing a father, a partner, and a son. And because of

qualified immunity, Mr. Stokes’s family cannot secure

even a modicum of justice or redress in the federal

courts. There is “nothing right or just under the law

about this.” Kisela, 138 S. Ct. at 1162 (Sotomayor, J.,

dissenting).

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Dated: December 9, 2022

Raymond P. Tolentino

Counsel of Record

Edward Williams

HOWARD UNIVERSITY SCHOOL

OF LAW CIVIL RIGHTS CLINIC

2900 Van Ness Street NW

Washington, D.C. 20008

(202) 699-0097

raymond.tolentino

@huslcivilrightsclinic.org

Brian F. McCallister

THE MCCALLISTER

LAW FIRM, P.C.

917 West 43rd Street

Kansas City, Missouri 64111

(816) 931-2229

info@mccallisterlawfirm.com

Cynthia L. Short

CLS MITIGATION &

CONSULTING SERVICES, L.L.C.

P.O. BOX 68217

Riverside, Missouri 64168

(816) 868-9088

cyndy@clsmitigation.com

Counsel for Petitioners

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.