Respondents Brief — 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 briefFeb 17, 2023

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No. 22-556

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; DAVID

KENNER,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

ANDREW BAILEY

Attorney General of Missouri

DIANE PETERS

Assistant Attorney General

615 E. 14th St., Suite 401

Kansas City, MO 64106

JEFFREY J. SIMON

MICHAEL T. RAUPP

Counsel of Record

SPENCER TOLSON

HUSCH BLACKWELL LLP

4801 Main St., Suite 1000

Kansas City, MO 64112

(816) 983-8000

michael.raupp

@huschblackwell.com

Counsel for Respondents

February 17, 2023

QUESTIONS PRESENTED

Police officers are entitled to qualified immunity

unless (1) they violated a federal statutory or

constitutional right; and (2) the unlawfulness of their

conduct was “clearly established” at the time. To be

clearly established, the law must have a clear

foundation in existing law, and the specificity of that

prior precedent is “especially important in the

Fourth Amendment context.” Mullenix v. Luna, 577

U.S. 7, 12 (2015) (per curiam).

Here, no factually similar precedent illustrated

that Officer William Thompson violated clearly

established law when he fired his service weapon at

a suspect fleeing a fellow officer. After the suspect

made eye contact with Officer Thompson—in full

police uniform and pointing his gun—the suspect ran

past Officer Thompson to a car, opened and closed

the driver’s door, and ran back toward the pursuing

officer. Officer Thompson could not see the suspect’s

right hand after he reached the car. While running

back toward the pursuing officer, the suspect raised

his hands to his waist. Making the split-second

decision that he was preventing an ambush on his

fellow officer, Officer Thompson fired three times,

killing the suspect. The questions presented are:

1. When no factually analogous precedent clearly

establishes a constitutional violation—and the most

analogous circuit precedent indicates that the

officer’s actions were constitutional—whether courts

should follow this Court’s precedent and grant

qualified immunity, or apply a more lenient standard

and deny qualified immunity.

2. Whether this Court should abolish its longstanding doctrine of qualified immunity.

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS .......................................... ii

TABLE OF AUTHORITIES .................................... iv

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

STATEMENT OF THE CASE .................................. 2

Facts Known to Officer Thompson. .................. 2

II.

Legal Framework. ............................................. 4

III. Procedural History............................................ 6

REASONS FOR DENYING THE PETITION ......... 8

II.

There Is No Circuit Split. ................................. 8

The Eighth Circuit adheres to this

Court’s consistent precedents and

does not conflict with other circuits. ...... 11

The Fifth and Sixth Circuits likewise

follow this Court’s precedents and

are not in conflict with other circuits. ... 13

The remaining circuits discussed by

petitioners apply the doctrine in the

same way................................................. 18

This Case Is A Poor Vehicle To Address

Petitioners’ Questions Presented. .................. 21

iii

III. The Decision Below Is Correct. ...................... 25

The court of appeals correctly

affirmed the grant of qualified

immunity to Officer Thompson. ............. 25

This Court should not abandon

qualified immunity. ................................ 33

CONCLUSION........................................................ 35

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................. 5

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ........................................... 5, 17

Banks v. Hawkins,

999 F.3d 521 (8th Cir. 2021),

cert. denied,

142 S. Ct. 2674 (2022) ................... 11, 12, 13, 20, 22

Bell v. Neukirch,

979 F.3d 594 (8th Cir. 2020) ................................. 12

Billingsley v. City of Omaha,

277 F.3d 990 (8th Cir. 2002) ................................. 31

Brown v. City of Golden Valley,

574 F.3d 491 (8th Cir. 2009) ................................. 12

Capps v. Olson,

780 F.3d 879 (8th Cir. 2015) ................................. 13

Caskey v. Fenton,

No. 22-3100, 2022 WL 16964963

(6th Cir. Nov. 16, 2022) ......................................... 18

City of S.F. v. Sheehan,

575 U.S. 600 (2015) ............................................... 24

City of Tahlequah v. Bond,

142 S. Ct. 9 (2021) ................................. 5, 10, 12, 34

Cope v. Cogdill,

3 F.4th 198 (5th Cir. 2021) ............................. 15, 16

Courtright v. City of Battle Creek,

839 F.3d 513 (6th Cir. 2016) ................................. 18

Craighead v. Lee,

399 F.3d 954 (8th Cir. 2005) ................................. 13

Crawford v. Tilley,

15 F.4th 752 (6th Cir. 2021) ................................. 17

Delta Air Lines, Inc. v. August,

450 U.S. 346 (1981) ............................................... 23

District of Columbia v. Wesby,

138 S. Ct. 577 (2018) ........................... 5, 6, 9, 10, 12

Doxtator v. O’Brien,

39 F.4th 852 (7th Cir. 2022) ................................. 19

Goffin v. Ashcraft,

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

Gordon v. Bierenga,

20 F.4th 1077, 1082 (6th Cir. 2021),

cert. denied, 143 S. Ct. 302 (2022) ........................ 16

Graham v. Connor,

490 U.S. 386 (1989) ................................... 28, 31, 34

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................... 5, 35

Hernandez v. Mesa,

137 S. Ct. 2003 (2017) ....................................... 2, 27

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ........................................... 23

Hope v. Pelzer,

536 U.S. 730 (2002) ............................................... 15

Howard v. Kansas City Police Dep’t,

570 F.3d 984 (8th Cir. 2009) ........................... 11, 12

Jacobs v. W. Feliciana Sheriff’s Dep’t,

228 F.3d 388 (5th Cir. 2000) ................................. 16

Johnson v. City of Minneapolis,

901 F.3d 963 (8th Cir. 2018) ................................. 12

Juarez v. Aguilar,

666 F.3d 325 (5th Cir. 2011) ................................. 14

Kenjoh Outdoor, LLC v. Marchbanks,

23 F.4th 686 (6th Cir. 2022) ........................... 16, 17

Kingsley v. Hendrickson,

576 U.S. 389 (2015) ........................................... 2, 26

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ................................. 6, 28, 32

Lee v. Russ,

33 F.4th 860 (6th Cir. 2022) ................................. 18

Loch v. City of Litchfield,

689 F.3d 961 (8th Cir. 2012) ................................. 31

Luer v. Clinton,

987 F.3d 1160 (8th Cir. 2021) ............................... 12

vii

Malley v. Briggs,

475 U.S. 335 (1986) ............................................... 10

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) ................................................. 4

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) ........................... 14, 15

Mountain Pure, LLC v. Roberts,

814 F.3d 928 (8th Cir. 2016) ................................. 20

Mullenix v. Luna,

577 U.S. 7 (2015) ............................................ i, 6, 17

Nance v. Sammis,

586 F.3d 604 (8th Cir. 2009) ................................. 32

Ngo v. Storlie,

495 F.3d 597 (8th Cir. 2007) ................................. 32

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) ................................................. 33

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................. 7

Pierson v. Ray,

386 U.S. 547 (1967) ............................................... 35

Quraishi v. St. Charles Cnty.,

986 F.3d 831 (8th Cir. 2021) ................................. 12

Rahim v. Doe,

51 F.4th 402 (1st Cir. 2022) .................................. 19

viii

Rivas-Villegas v. Cortesluna,

142 S. Ct. 4 (2021) ..................................... 10, 30, 34

Rivera v. Monko,

37 F.4th 909 (3d Cir. 2022) ................................... 19

Robbins v. City of Des Moines,

984 F.3d 673 (8th Cir. 2021) ................................. 12

Rohrbough v. Hall,

586 F.3d 582 (8th Cir. 2009) ................................. 12

Saucier v. Katz,

533 U.S. 194 (2001) ..................................... 6, 34, 35

Seidner v. de Vries,

39 F.4th 591 (9th Cir. 2022) ........................... 19, 20

Sharpe v. Winterville Police Dep’t,

No. 21-1827, 2023 WL 1787881

(4th Cir. Feb. 7, 2023) ........................................... 19

Shekleton v. Eichenberger,

677 F.3d 361 (8th Cir. 2012) ................................. 12

Taylor v. Riojas,

141 S. Ct. 52 (2020) ......................................... 10, 16

Tennessee v. Garner,

471 U.S. 1 (1985) ............................................. 31, 32

Thompson v. Hubbard,

257 F.3d 896 (8th Cir. 2001) ................. 8, 25, 30, 31

Trammell v. Fruge,

868 F.3d 332 (5th Cir. 2017) ................................. 14

Tucker v. City of Shreveport, Louisiana,

No. 21-569 (Dec. 6, 2021) ...................................... 24

Wade v. Daniels,

36 F.4th 1318 (11th Cir. 2022) ............................. 20

White v. Pauly,

580 U.S. 73 (2017) ............................................... 2, 9

Z.J. ex rel. Jones v. Kansas City Bd. of Police

Comm’rs,

931 F.3d 672 (8th Cir. 2019) ................................. 12

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) ................................. 15

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ................................... 4, 5, 34

Statutory Authorities

42 U.S.C. § 1983 ............................................ 4, 5, 6, 26

Additional Authorities

A Defense of Qualified Immunity,

93 Notre Dame L. Rev. 1853 (2018) ..................... 33

INTRODUCTION

Five federal judges—through district court

proceedings and two appeals—evaluated the

summary-judgment record in this case.

Each

concluded Officer William Thompson is entitled to

qualified immunity. No judge dissented from either

opinion or from the denial of rehearing en banc.

In the latest opinion affirming the grant of

qualified immunity, the court of appeals concluded

the alleged constitutional violation was not clearly

established. The most factually analogous circuit

precedent indicated that Officer Thompson’s conduct

was constitutional and, at the very least, created

substantial uncertainty on that question—far short

of what is required for petitioners to show clearly

established law. This case is a straightforward

application of this Court’s consistent qualifiedimmunity precedents.

Here, petitioners allege a circuit split on the

abstract question of what level of factual similarity is

required to show clearly established law, but the

alleged split does not exist. Precedent from the

various circuits shows they apply the same law in the

same way. Any differences in case outcomes are

driven by the facts of specific cases, not some

overarching distinction in how circuits apply the law.

Even if the Court wanted to review either

question presented, this case is a poor vehicle in

which to do so.

Most significantly, petitioners

waived an argument they now claim is central to this

case, which would substantially complicate review of

this record. This, along with additional impediments

to effective review, compels denial of the petition.

Finally, the court of appeals’ decision is correct in

all respects, and this Court should not abandon its

longstanding application of qualified immunity.

This Court should deny the petition.

STATEMENT OF THE CASE

Against this Court’s consistent command,

petitioners’ statement of the case is replete with

“facts” Officer Thompson never knew at the time of

the incident. The qualified immunity analysis “is

limited to ‘the facts that were knowable to the

defendant officer[]’ at the time [he] engaged in the

conduct in question.” Hernandez v. Mesa, 137 S. Ct.

2003, 2007 (2017) (per curiam) (quoting White v.

Pauly, 580 U.S. 73, 77 (2017) (per curiam)). “Facts

an officer learns after the incident ends—whether

those facts would support granting immunity or

denying it—are not relevant.” Ibid.; see also Kingsley

v. Hendrickson, 576 U.S. 389, 399 (2015) (“[W]e have

stressed that a court must judge the reasonableness

of the force used from the perspective and with the

knowledge of the defendant officer.”). Accordingly,

respondents’ statement of the case contains facts

known to Officer Thompson at the time of the

incident.

I. Facts Known to Officer Thompson.

For over 20 years, William Thompson has served

the community as an Officer in the Kansas City

Police Department. Pet.App. 188. On July 28, 2013,

Officer Thompson and his partner were on foot patrol,

assigned to a certain parking lot in downtown

Kansas City, Missouri. Ibid. In the early-morning

hours, Officer Thompson received a radio message

that “other officers were pursuing two men suspected

of theft.” Pet.App. 36. The radio transmission

included specific descriptions of the suspects, their

direction of travel, and identification of the alleged

crime, stealing. Ibid. That transmission alerted

Officer Thompson that the suspects were headed

toward his location. Pet.App. 4.

Seconds later, Officer Thompson observed Ryan

Stokes—who matched the radio description—run

around the corner of a building into the parking lot.

Stokes ran in the direction of Officer Thompson,

toward a car parked in the lot. Pet.App. 4, 19.

“Stokes held his hands and arms close to his body as

he ran, with his elbows bent, stationary, and close to

his body.” Pet.App. 19. Although Officer Thompson

consistently testified he saw a gun in Stokes’ right

hand, the court of appeals assumed Stokes did not

for its analysis. Pet.App. 5.

Officer Thompson drew his service weapon,

pointing it at Stokes. Pet.App. 20. Stokes continued

to run toward Officer Thompson, and when they

were less than fifteen feet apart—Officer Thompson

being in full police uniform and pointing his gun at

Stokes—Stokes looked directly at Officer Thompson.

C.A. App. 0096, 1489, 1491, 2102.

Instead of

surrendering, Stokes ran past Officer Thompson,

continuing toward the car. Ibid.

Once Stokes reached the car, he opened the

driver’s side door, the door closest to Officer

Thompson. Pet.App. 4. Out of his peripheral vision,

Officer Thompson saw his fellow officer, Officer

Straub, round the corner of the building and run into

the parking lot; Straub was the officer in foot-pursuit

of Stokes. Pet.App. 20. Stokes closed the car door

and “ran in the direction of the approaching officer,

Officer Straub.” Ibid. Officer Thompson could not

see Stokes’ right hand. Ibid.

As Stokes moved toward Officer Straub, he raised

his hands to his waist, with Officer Thompson still

unable to see Stokes’ right hand. Ibid. Officer

Straub was only ten feet from Stokes. C.A. App.

2071. Believing Stokes was going to shoot Officer

Straub, and having a split second to react, Officer

Thompson fired three times, hitting Stokes twice.

C.A. App. 0096, 2099. Stokes later died. Ibid.

Although Stokes was unarmed at the time Officer

Thompson fired, a gun was found on the driver’s seat

of the car Stokes accessed. Pet.App. 20-21. A mere

seven to ten seconds elapsed between the time

Officer Thompson first saw Stokes and when Officer

Thompson fired his weapon. Pet.App. 20.

II. Legal Framework.

In their lawsuit, petitioners asserted a Fourth

Amendment excessive-force claim against Officer

Thompson under 42 U.S.C. § 1983. 1 At summary

judgment, Officer Thompson asserted qualified

immunity, which is the gravamen of the subsequent

proceedings.

“The qualified immunity rule seeks a proper

balance between two competing interests.” Ziglar v.

1 Petitioners

also asserted claims against the Kansas City

Police Board and the Chief of Police under 42 U.S.C. § 1983 and

Monell v. Department of Social Services, 436 U.S. 658 (1978), as

well as a state-law wrongful death claim against Officer

Thompson and the Board. Petitioners do not discuss these

claims in their petition; they focus solely on the excessive-force

claim and the attendant grant of qualified immunity. See, e.g.,

Pet. 7.

Abbasi, 137 S. Ct. 1843, 1866 (2017). “On one hand,

damages suits ‘may offer the only realistic avenue for

vindication of constitutional guarantees.’”

Ibid.

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982)). “On the other hand, permitting damages

suits against government officials can entail

substantial social costs, including the risk that fear

of personal monetary liability and harassing

litigation will unduly inhibit officials in the discharge

of their duties.” Ibid. (quoting Anderson v. Creighton,

483 U.S. 635, 638 (1987)). Qualified immunity

strikes this balance by giving officials “‘breathing

room to make reasonable but mistaken judgments

about open legal questions.’” Ibid. (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 743 (2011)).

“[O]fficers are entitled to qualified immunity

under § 1983 unless (1) they violated a federal

statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly

established at the time.’” District of Columbia v.

Wesby, 138 S. Ct. 577, 589 (2018) (citation omitted).

“‘Clearly established’ means that, at the time of the

officer’s conduct, the law was ‘sufficiently clear that

every reasonable official would understand that what

he is doing’ is unlawful.” Ibid. (quoting al-Kidd, 563

U.S. at 741).

This Court has “repeatedly told courts not to

define clearly established law at too high a level of

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

11 (2021) (per curiam). Rather, “[t]he rule’s contours

must be so well defined that it is clear to a

reasonable officer that his conduct was unlawful in

the situation he confronted.” Wesby, 138 S. Ct. at

590 (quotation omitted). “This requires a high

‘degree of specificity.’” Ibid. (quoting Mullenix v.

Luna, 577 U.S. 7, 13 (2015) (per curiam)).

This authority is particularly relevant here, as

“specificity is especially important in the Fourth

Amendment context, where the Court has recognized

that ‘[i]t is sometimes difficult for an officer to

determine how the relevant legal doctrine, here

excessive force, will apply to the factual situation the

officer confronts.’” Mullenix, 577 U.S. at 12 (quoting

Saucier v. Katz, 533 U.S. 194, 205 (2001)). “Use of

excessive force is an area of the law ‘in which the

result depends very much on the facts of each case,’

and thus police officers are entitled to qualified

immunity unless existing precedent ‘squarely

governs’ the specific facts at issue.” Kisela v. Hughes,

138 S. Ct. 1148, 1153 (2018) (quoting Mullenix, 577

U.S. at 13).

III. Procedural History.

Following discovery, respondents moved for

summary judgment, with Officer Thompson

asserting qualified immunity from the § 1983 claim.

1. In its first attempt, the district court denied

qualified immunity to Officer Thompson, ruling that

“[a]s a general matter,” the right to be free from

excessive force is clearly established. Pet.App. 49.

Based on that “clearly established” right, the district

court concluded that genuine issues of material fact

precluded qualified immunity.

2. On interlocutory appeal, the Eighth Circuit

reversed. The court held that the district court did

not uphold its “threshold duty” to make a “thorough

determination” of Officer Thompson’s assertion of

qualified immunity. Pet.App. 38. The district court’s

order “did little more than summarize the parties’

allegations and decide that the combination of a

‘general . . . right to be free from excessive force’ and

the presence of ‘genuine issues of material fact’

precluded summary judgment.” Ibid.

The court remanded the case “for a second look,”

providing specific guidance to the district court: “On

remand the court should begin by specifically

identifying the plaintiff-friendly version of the

disputed facts, rather than, as it did before, simply

reciting the parties’ general allegations.” Pet.App. 39.

“It must then evaluate whether Thompson, in light of

all the information available to him at the moment,

violated clearly established law when he shot

Stokes.” Pet.App. 40.

3. On remand, the district court complied, setting

out the background proceedings and uncontroverted

facts. Pet.App. 14-21. The district court began its

analysis by setting forth the plaintiff-friendly version

of disputed facts, then engaging in the qualifiedimmunity inquiry. Pet.App. 21-29.

Appropriately conducting the full analysis this

time, the district court concluded Officer Thompson

was entitled to qualified immunity. It made that

finding on both prongs of the inquiry. Pet.App. 24-29.

That is, the district court concluded (1) that no

constitutional violation occurred; and (2) the right at

issue was not clearly established. Ibid.

4. Petitioners appealed. The Eighth Circuit set

forth the qualified-immunity standard, noting its

discretion to address the two prongs in either order.

Pet.App. 5; Pearson v. Callahan, 555 U.S. 223, 236

(2009). The court of appeals proceeded to the second

prong, because the lack of clearly established law

was sufficient to affirm. Specifically, the court

explained that the most factually analogous Eighth

Circuit precedent held that an officer’s use of force in

a similar situation was constitutional. Pet.App. 5-6

(discussing Thompson v. Hubbard, 257 F.3d 896, 898

(8th Cir. 2001)). The court identified substantial

dissimilarities in the cases petitioners cited to proffer

a clearly established right, explaining that, at most,

these authorities created uncertainty for an officer,

far short of this Court’s required standard. Pet.App.

7-8. Accordingly, the court of appeals affirmed.

Petitioners filed a petition for rehearing and

rehearing en banc, which the court of appeals denied

without dissent. Pet.App. 56-57. This petition

follows.

REASONS FOR DENYING THE PETITION

Attempting to obtain review of the lower courts’

careful application of this Court’s consistent

precedent, petitioners manufacture a circuit split,

present the Court with a case that is a poor vehicle to

resolve either question presented, and attack a

decision that was correct in all respects. This Court

should deny the petition.

I. There Is No Circuit Split.

Instead of framing their alleged circuit split in the

traditional way—claiming cases with similar facts

are decided differently across circuits—petitioners

allege a more abstract split. They claim circuits are

divided on the level of factual specificity required to

show a “clearly established” right under the second

prong of this Court’s qualified-immunity test. Pet.

12-18.

To the extent this Court will entertain discussion

of this abstract split, petitioners are incorrect that

any dichotomy exists. Authority from each identified

circuit illustrates the circuits simply apply this

Court’s precedents to factual records before them.

Any varying outcome in cases—either within or

across circuits—is due to factual circumstances of

particular cases, not systematic differentiation of

legal standards.

As previously summarized, supra at 5-6,

extensive authority defines the “clearly established”

inquiry. “To be clearly established, a legal principle

must have a sufficiently clear foundation in thenexisting precedent.” Wesby, 138 S. Ct. at 589. The

rule must be “settled” law, meaning it is “dictated by

controlling authority” or “a robust consensus of cases

of persuasive authority.” Id. at 589-90 (citations

omitted). It is insufficient for the rule to be merely

“suggested” by precedent, it must be “clear enough

that every reasonable official would interpret it to

establish the particular rule the plaintiff seeks to

apply.” Ibid.

To be sure, there does not need to be a case

“directly on point,” but existing precedent must place

the rule “beyond debate.” Ibid. (citation omitted). A

plaintiff makes this showing by offering prior

authority that “clearly prohibit[s] the officer’s

conduct in the particular circumstances before him.”

Ibid. This specificity is especially important in the

Fourth Amendment context, where plaintiffs must

“identify a case where an officer acting under similar

circumstances . . . was held to have violated the

Fourth Amendment.” White, 137 S. Ct. at 552.

Finally, “there can be the rare ‘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. But this exception is reserved for truly rare

circumstances 2 ; “a body of relevant case law is

usually necessary.” Ibid. (citation omitted).

Petitioners seek to dilute the test, but this Court

confirms it is a “demanding standard,” one that

protects “all but the plainly incompetent or those

who knowingly violate the law.” Wesby, 138 S. Ct. at

589 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). Just last term, this Court summarily, and

unanimously, reversed denials of qualified immunity

on this precise issue—the lack of particularized

authority. Bond, 142 S. Ct. at 11-12; Rivas-Villegas

v. Cortesluna, 142 S. Ct. 4, 7-8 (2021) (per curiam).

Rather than being “somewhat conflicting” (Pet. 10,

11), these standards provide guideposts to lower

courts in evaluating the variety of factual scenarios

before them. Any variation among decisions is

attributable to facts of particular cases, not an

overarching dichotomy of legal analysis.

2 See,

e.g., Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per

curiam) (applying the “rare obvious case” exception where an

inmate was held for six days “in a pair of shockingly unsanitary

cells,” which were covered in “massive amounts of feces,” were

“frigidly cold,” and had clogged drains, forcing the inmate “to

sleep naked in sewage.”).

A. The Eighth Circuit adheres to this

Court’s consistent precedents and does

not conflict with other circuits.

In their first question presented, petitioners claim

the Eighth Circuit requires “factually identical

precedent” to illustrate clearly established law (Pet.

i), a refrain repeated throughout the petition. See

Pet. 13, 14, 18. It is this characterization that

petitioners claim conflicts with other circuits.

Unfortunately for petitioners, that court has

expressly rejected petitioners’ portrayal. In the

Eighth Circuit, a plaintiff “does not have to point to a

nearly identical case on the facts for the right to be

clearly established.” Banks v. Hawkins, 999 F.3d

521, 528 (8th Cir. 2021), cert. denied, 142 S. Ct. 2674

(2022).

“Our precedent does not set such a

prohibitively difficult standard.” Ibid.

The court in Banks did more than just recite

these standards; it described a series of cases in

which the Eighth Circuit applied these principles.

The court discussed, for example, Howard v. Kansas

City Police Department, 570 F.3d 984 (8th Cir. 2009),

where it found that pushing a shirtless suspect onto

hot asphalt causing him second degree burns during

questioning

was

clearly

established

constitutional violation, because it occurred while the

suspect complained of pain. Howard, 570 F.3d at

987. In finding that right clearly established, the

court relied on prior cases involving unconstitutional

seizures by overly tight handcuffs. Id. at 991. “It

mattered not that hot asphalt is different from tight

restraints . . . or that the duration of the challenged

conduct differed from that in the cited decisions.”

Banks, 999 F.3d at 529 (discussing Howard, 570 F.3d

at 991-92).

“Existing case law made the

constitutional violation sufficiently clear, even in

unique circumstances.” Ibid.

Howard is not the only example Banks identified;

the court cited nine examples of cases in which the

Eighth Circuit found a clearly established right

despite a lack of identical circumstances. See id. at

529 & n.7 (citing Luer v. Clinton, 987 F.3d 1160,

1164, 1169-70 (8th Cir. 2021); Quraishi v. St. Charles

Cnty., 986 F.3d 831, 839 (8th Cir. 2021); Robbins v.

City of Des Moines, 984 F.3d 673, 681 (8th Cir. 2021);

Bell v. Neukirch, 979 F.3d 594, 607-08 (8th Cir. 2020);

Z.J. ex rel. Jones v. Kansas City Bd. of Police

Comm’rs, 931 F.3d 672, 683-84 (8th Cir. 2019);

Johnson v. City of Minneapolis, 901 F.3d 963, 971

(8th Cir. 2018); Shekleton v. Eichenberger, 677 F.3d

361, 367 (8th Cir. 2012); Rohrbough v. Hall, 586 F.3d

582, 586-87 (8th Cir. 2009); Brown v. City of Golden

Valley, 574 F.3d 491, 499-500 (8th Cir. 2009)).

This is not to say the Eighth Circuit fails to

adhere to this Court’s admonition “not to define

clearly established law at too high a level of

generality.” Bond, 142 S. Ct. at 11. Nor does it

mean individual judges will always agree about

whether a body of authority is particularized enough

that “every reasonable official would interpret it to

establish the particular rule the plaintiff seeks to

apply.” Wesby, 138 S. Ct. at 590. Indeed, there was

a dissent in Banks, and the court of appeals opinion

here illustrates that an appropriate degree of specific

authority remains necessary. Judges are carefully

considering—as they are supposed to—the facts of

the particular case before them alongside the body of

relevant precedent.

That is all that is happening in Goffin v. Ashcraft

as well. 977 F.3d 687 (8th Cir. 2020). There, Judge

Kelley disagreed about whether existing precedent

clearly established the right at issue, but even her

dissenting opinion explained that existing Eighth

Circuit precedent did not require identical precedent.

Id. at 696 (Kelley, J., dissenting). And that was true

even before that court decided Banks.

Further, Banks remains good law in the circuit

(as do the other discussed cases).

And they

conclusively disprove petitioners’ characterization of

Eighth Circuit authority as requiring “virtually

identical facts” to show clearly established law. See

Pet. 18. That is simply not the law in the Eighth

Circuit. See also Capps v. Olson, 780 F.3d 879, 886

(8th Cir. 2015) (“For a constitutional right to be

clearly established, there does not have to be a

previous case with exactly the same factual issues”

(citation omitted)); Craighead v. Lee, 399 F.3d 954,

962 (8th Cir. 2005) (“[T]he issue is not whether prior

cases present facts substantially similar to the

present case but whether prior cases would have put

a reasonable officer on notice that the use of deadly

force in these circumstances would violate [the

plaintiff]’s right not to be seized by the use of

excessive force.”).

B. The Fifth and Sixth Circuits likewise

follow this Court’s precedents and are

not in conflict with other circuits.

Petitioners claim the Fifth and Sixth Circuits also

require factually identical precedent to show clearly

established law. Once again, decisions from those

circuits show otherwise.

In the Fifth Circuit, “[t]he central concept is that

of fair warning: The law can be clearly established

despite notable factual distinctions between the

precedents relied on and the cases then before the

Court, so long as the prior decisions gave reasonable

warning that the conduct then at issue violated

constitutional rights.” Trammell v. Fruge, 868 F.3d

332, 339 (5th Cir. 2017) (internal quotation marks

and citations omitted). That the Fifth Circuit “has

not previously considered an identical fact pattern

does not mean that a litigant’s rights were not

clearly established.” Juarez v. Aguilar, 666 F.3d 325,

336 (5th Cir. 2011). “As long as the officials received

fair notice that their conduct violated the litigant’s

rights, the right was clearly established.” Ibid.

Ignoring this precedent, petitioners direct the

Court to Morrow v. Meachum, 917 F.3d 870, 874 (5th

Cir. 2019). But petitioners neglect to discuss the

court’s application of the test there, one which drew

no dissent. Not only was the plaintiff unable to

identify particularized authority, the court of appeals

described that “[t]o the extent we can identify clearly

established law in excessive-force cases, it supports

[the officer], not [the plaintiff].” Id. at 877. Thus, it

was unquestionably proper for the court to deny

qualified immunity. Petitioners instead cherry-pick

certain words from the court’s discussion of the

general legal standard, which petitioners believe are

helpful to their narrative. But that discussion is

grounded squarely in this Court’s precedent,

repeatedly citing and quoting this Court’s cases.

Morrow, 917 F.3d at 874-76.

What’s more,

petitioners omit reference to footnote 5, where the

court expressly includes the principles petitioners

believe essential: “Of course, ‘[t]his is not to say that

an official action is protected by qualified immunity

unless the very action in question has previously

been held unlawful.’” Id. at 875 n.5 (quoting Hope v.

Pelzer, 536 U.S. 730, 739 (2002)).

Petitioners also offer two separate opinions from

individual Fifth Circuit judges, but those opinions do

not establish any split. First is Judge Willett’s

separate opinion in Zadeh v. Robinson, 928 F.3d 457

(5th Cir. 2019), but it fails to cite single case from

any other circuit, nor does it illustrate the Fifth

Circuit is different from any others. Petitioners

nevertheless cite to this opinion time and again (Pet.

11, 13, 18, 35), leaning on its quote that “courts of

appeals are divided—intractably—over precisely

what degree of factual similarity must exist.” Zadeh,

928 F.3d at 479 (Willett, J., concurring in part and

dissenting in part). But that quote is unsupported by

citation to any decision of any circuit. To be sure,

Judge Willett wrote this opinion to express his

“broader unease with the real-world functioning of

modern immunity practice,” not to illustrate a

concrete circuit split. Ibid. But for purposes of the

present discussion, his opinion does not illustrate the

Fifth Circuit applies a legal standard different than

others.

Judge Dennis’ dissenting opinion in Cope v.

Cogdill, 3 F.4th 198 (5th Cir. 2021), cert. denied, 142

S. Ct. 2573 (2022), doesn’t help either. There, he

criticized the panel majority for “defin[ing] the

clearly established right in an overly narrow

manner” by requiring “a case with virtually identical

facts to prove that this excessively narrow

description of the right has been clearly established.”

Cope, 3 F.4th at 218 (Dennis, J., dissenting). But the

basis for criticism was Judge Dennis’ belief that the

majority deviated from the Fifth Circuit’s own

precedent, as well as this Court’s precedent. See id.

at 218-20 (discussing, e.g., Jacobs v. W. Feliciana

Sheriff's Dep’t, 228 F.3d 388 (5th Cir. 2000); Taylor,

141 S. Ct. 52). Thus, even in that dissent’s view, the

problem was the application of governing law to

particular facts in the case, not an overarching

difference in applicable circuit law.

The Sixth Circuit tells a similar story. There,

petitioners cite two cases, both decided unanimously,

both applying this Court’s consistent precedent, and

both acknowledging an identical case is unnecessary.

In Gordon v. Bierenga, 20 F.4th 1077, 1082 (6th

Cir. 2021), cert. denied, 143 S. Ct. 302 (2022), the

court reversed a denial of qualified immunity. It

expressly stated that “[a] case ‘directly on point’ is

not required, but ‘existing precedent must have

placed the statutory or constitutional question

beyond debate,’” and the court appropriately

recognized the elevated importance of particularized

precedent in Fourth Amendment cases. Id. at 1082.

Applying that precedent—and recognizing that the

case presented “a close call”—the court concluded

that prior precedent did not “squarely govern[]” the

facts at issue. Id. at 1083-85 (citation omitted).

Petitioners’ apparent disagreement with that

unanimous outcome does not illustrate that the Sixth

Circuit is applying a different analytical framework.

Nor does Kenjoh Outdoor, LLC v. Marchbanks, 23

F.4th 686 (6th Cir. 2022) help petitioners. There, the

unanimous panel again began by recognizing that

“although the plaintiff need not provide ‘a case

directly on point,’ the ‘existing precedent must have

placed the . . . question beyond debate.’” Id. at 694

(quoting Mullenix, 577 U.S. at 12).

The court

discussed prior Sixth Circuit precedent rejecting the

rule the plaintiff wanted, explaining that the

plaintiff “attempt[ed] to get around this by

generalizing its right.” Ibid.

Without discussing that analysis, petitioners

seize on a single quote, where the court says it

rejected qualified immunity “because not a single

judicial opinion ha[s] held the official’s action

unconstitutional.” Pet. 14. First, that conclusion can

be understood only in the context of the broader

opinion, which explained that the most analogous

circuit precedent rejected constitutional liability.

Second,

petitioners’

quotation

included

parenthetical noting “quotation marks omitted.” Pet.

14. But that’s a significant omission here, where

that quote actually comes from this Court’s own

precedent:

All in all, we will do here what the Supreme

Court did in al-Kidd. We will “affirm[] the

application of qualified immunity” because it

is “apparent from the complaint that the law

was not clearly established because ‘not a

single judicial opinion’ ha[s] held the official’s

action unconstitutional.” [Crawford v. Tilley,

15 F.4th 752, 766 (6th Cir. 2021)] (quoting alKidd, 563 U.S. at 741).

Kenjoh Outdoor, 23 F.4th at 695. Far from showing

a circuit split, Kenjoh Outdoor illustrates the Sixth

Circuit dutifully applies this Court’s precedents.

Finally, a survey of Sixth Circuit precedent

illustrates that petitioners’ characterization of that

circuit’s precedent is incorrect. See, e.g., Caskey v.

Fenton, No. 22-3100, 2022 WL 16964963, at *8 (6th

Cir. Nov. 16, 2022) (rejecting defendants’ argument

that the law was not clearly established, explaining

that the “requested scenario reaches a level of

specificity that defies the Supreme Court’s

instruction that factual scenarios need not be

identical to put officers on notice of the rights

violation caused by their conduct”); Lee v. Russ, 33

F.4th 860, 863 (6th Cir. 2022) (denying qualified

immunity and applying the governing standard that

the facts “need not be identical, but they must be

similar enough that the other case squarely governs

this one” (citation omitted)); Courtright v. City of

Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016)

(“Requiring any more particularity than this would

contravene the Supreme Court’s explicit rulings that

neither a ‘materially similar,’ ‘fundamentally

similar,’ or ‘case directly on point’—let alone a

factually identical case—is required, and that the

specific acts or conduct at issue need not previously

have been found unconstitutional for a right to be

clearly established law.” (citation omitted)).

Petitioners’ manufactured “circuit split” is no split

at all. This Court should deny the petition.

C. The remaining circuits discussed by

petitioners apply the doctrine in the

same way.

On the other side of petitioners’ alleged split, they

identify the First, Third, Fourth, Seventh, Ninth,

and Eleventh Circuits as holding “that the law can

be clearly established even if prior case law is not an

exact match.” Pet. 15. The petition gives examples

of these circuits finding clearly established law

despite the lack of an identical factual analog. Little

discussion of these cases is necessary here, however,

because all they illustrate is that these circuits apply

the doctrine just like the Fifth, Sixth, and Eighth

Circuits, as discussed. Outcomes are driven by

factual circumstances the courts encounter, not by a

disagreement on legal framework.

Moreover, each of these circuits readily utilizes

the clearly-established test to grant qualified

immunity when the plaintiff is unable to identify

particularized case law illustrating the rule at issue

is clearly established. See, e.g., Rahim v. Doe, 51

F.4th 402, 412 (1st Cir. 2022) (granting qualified

immunity because the plaintiff “failed to meet its

burden to identify controlling authority or a

consensus of persuasive authority sufficient to put

the officers on notice that their conduct violated the

law”); Rivera v. Monko, 37 F.4th 909, 919 (3d Cir.

2022) (granting qualified immunity because the

plaintiff did not identify “controlling authority, or a

robust consensus of persuasive authority” that the

“right defendants violated was not beyond doubt”);

Sharpe v. Winterville Police Dep’t, No. 21-1827, 2023

WL 1787881, at *6 (4th Cir. Feb. 7, 2023) (granting

qualified immunity because there was “no precedent

in this Circuit nor consensus of authority from the

other Circuits establish[ing that an officer’s] actions

were unconstitutional”); Doxtator v. O’Brien, 39 F.4th

852, 863 (7th Cir. 2022) (granting qualified immunity

because the authority plaintiff presented was not “at

all close to being particularized to the facts of [this]

case” and was insufficient to “satsif[y] the high bar

required to defeat” qualified immunity (citation

omitted)); Seidner v. de Vries, 39 F.4th 591, 602 (9th

Cir. 2022) (granting qualified immunity because of

“material differences” between the use of force in

prior cases the plaintiff presented); Wade v. Daniels,

36 F.4th 1318, 1328-29 (11th Cir. 2022) (granting

qualified immunity where the plaintiff failed to cite

to any “analogous cases showing that [the officer]

violated a clearly established right”).

Petitioners’ alleged circuit split is illusory. The

Eighth, Fifth, and Sixth Circuits each faithfully

apply this Court’s precedents.

Contrary to

petitioners’ suggestion, none of them require

“identical” or “nearly identical” precedent to find

clearly established law; in fact, they expressly reject

that approach.

Tellingly, in 2019, this Court denied a petition for

writ of certiorari presenting very similar questions to

those presented here. See Petition, I.B. v. Woodard

(No. 18-1173). On the clearly-established test, the

petitioners in I.B. said the Eighth Circuit was on the

lenient side of the split, because it “uses ‘a flexible

standard, requiring some, but not precise factual

correspondence with precedent, and demanding that

officials apply general, well-developed legal

principles.’” Petition at 17, I.B. v. Woodard (No. 181173) (quoting Mountain Pure, LLC v. Roberts, 814

F.3d 928, 932 (8th Cir. 2016)). And that was before

Banks, where the Eighth Circuit expressly rejected

the need for a “nearly identical case.” See supra at

11-12. But characterizing the Eighth Circuit as

lenient wouldn’t play well for petitioners’ case here,

so we are now told the Eighth Circuit is on the strict

side of the split, requiring identical precedent.

Simply put, the “split” is illusory, and the

characterization of circuit precedent is driven by

individual petitioners’ interests.

Petitioners’ manufactured circuit split does not

warrant this Court’s review.

II. This Case Is A Poor Vehicle To Address

Petitioners’ Questions Presented.

Although no circuit split exists, this case is also

unfit for review for at least five reasons: petitioners

waived an argument they now contend is central to

the case; petitioners misconstrue the Eighth Circuit’s

precedents; the second question presented was not

raised below; the district court separately found for

respondents on the first prong of qualified immunity;

and this Court has denied review of these questions

many times and has no shortage of opportunities to

review them in a proper case.

1. If the Court grants this petition, it will be

forced to resolve a waiver issue that petitioners inject

into this case. The court of appeals held that no

clearly

established

law

existed,

especially

considering “that Stokes had just accessed the inside

of an unknown vehicle before raising his hands.”

Pet.App. 7.

Petitioners are highly critical of this, claiming the

court of appeals improperly relied on the “defendantfriendly fact” that Stokes opened and shut the car

door, a fact they claim to have “squarely disputed” in

the district court. Pet. 27. Not so. As the court of

appeals explained:

We acknowledge the family’s attorney treated

this fact as disputed at oral argument. But

this position appears to be a late-breaking

change: the family’s appellate brief assumes it

to be true, and it was never contested before

the district court.

Pet.App. 4 n.2.

Now, in their petition to this Court, petitioners

challenge this, but they don’t point to anywhere in

the district court record where they contested this

fact; to the contrary, the record supports the court of

appeals. C.A. App. 0096, 0125, 2096. In any event,

petitioners separately waived this issue by conceding

the fact in their court of appeals briefing. See C.A.

Appellant Br. 19 (“[Officer] Straub saw [Stokes] at

the driver’s side door of the red Monte Carlo after the

door was open and the lights were on inside. . . .

[Stokes] saw Straub, shut the car door and moved

toward Straub.”).

Irrespective of how this waiver issue resolves, it

provides a substantial impediment to effective review.

Before this Court could even establish a factual

record for review of the opinion below, it would have

to resolve these underlying waiver questions. To the

extent this Court is interested in the questions

presented, it should wait for a case with a clean

record, free from issues of waiver and contested

concessions.

2. As discussed, petitioners mischaracterize the

Eighth Circuit as requiring factually “identical”

precedent. See supra at 11-13; Banks, 999 F.3d at

528 (holding that a plaintiff “does not have to point

to a nearly identical case on the facts for the right to

be clearly established.”). And the court of appeals

below did not apply a different rule. As discussed

infra at 25-33, the court did not require identical

precedent; rather, it concluded that the most

factually analogous binding precedent available, at

the very least, created substantial uncertainty as to

the constitutionality of the conduct, thereby

justifying qualified immunity. Pet.App. 6-8.

Petitioners therefore place this case in the

awkward posture of asking this Court to reverse the

Eighth Circuit, which already applies the very rule

petitioners want applied. If this Court wants to

revisit its qualified-immunity jurisprudence, it

should do so in a case where the circuits’ precedents

are accurately portrayed, and one in which the

decision being reviewed is out of step with this

Court’s consistent authority.

Petitioners’ second question presented

suggests that the “judge-made doctrine of qualified

immunity should be narrowed or abolished.” Pet. i.

Petitioners’ discussion of this issue frequently

invokes Justice Thomas’ concerns with the

underpinnings of this Court’s qualified-immunity

jurisprudence. See Pet. 30-31. Justice Thomas most

recently outlined his concerns in Hoggard v. Rhodes,

141 S. Ct. 2421, 2421-22 (2021) (Thomas, J.,

respecting the denial of certiorari). He concluded by

suggesting that the Court review those issues “in an

appropriate case,” but explained that “[t]he parties

did not raise or brief these specific issues below.” Id.

at 2422.

So too here. Petitioners did not raise or brief

these issues below, and this Court should not review

them here in the first instance. See, e.g., Delta Air

Lines, Inc. v. August, 450 U.S. 346, 362 (1981)

(holding that a “question was not raised in the Court

of Appeals and is not properly before us”).

4. The district court granted qualified immunity

to Officer Thompson on both prongs of the analysis,

concluding that petitioners did not establish a

constitutional violation, and that the alleged

violation was not clearly established. Pet.App. 24-29.

The court of appeals addressed only the second prong.

Pet.App. 5. This precludes effective review for two

reasons.

First, any reversal by this Court would not impact

the outcome of this case, because Officer Thompson

remains entitled to qualified immunity on the first

prong. Second, petitioners appear to ask the Court to

go further than just the second prong, suggesting the

Court should not only hold that the law is clearly

established, but also that Officer Thompson violated

the clearly established law. See, e.g., Pet. 29 (“Officer

Thompson violated clearly established law when he

shot and killed Mr. Stokes.”). But the court of

appeals did not opine on that issue, and this Court

should not either. See City of S.F. v. Sheehan, 575

U.S. 600, 609 (2015) (“The Court does not ordinarily

decide questions that were not passed on below.”).

5. This is far from the first time this Court has

been asked to review its qualified-immunity

precedents. Just last term, this Court denied a

petition presenting a nearly identical question to the

petition here, without even requesting a response

following the respondent’s waiver.

See Order

Denying Petition for Writ of Certiorari, Tucker v.

City of Shreveport, Louisiana, No. 21-569 (Dec. 6,

2021). There is no reason for a different result now.

Further, given all the hurdles to effective review

here, even if this Court were inclined to opine on

these questions, it should wait for an appropriate

case. There is no shortage of opportunities; for

purposes of illustration, a Westlaw search shows that

the courts of appeals issued 17 opinions involving the

grant or denial of qualified immunity in January

2023 alone. This Court should not stretch to grant

review in this ill-suited case.

III. The Decision Below Is Correct.

Petitioners dedicate at least half their petition to

discussing the substantive merits of their questions

presented, illustrating this is much more an effort to

revive individual claims than it is to resolve any

circuit split. In any event, the court of appeals’

decision is correct in all respects—not a single judge

on either panel disagreed, nor did any judge dissent

from the denial of rehearing en banc.

A. The court of appeals correctly affirmed

the grant of qualified immunity to Officer

Thompson.

In concluding the violation asserted by petitioners

was not clearly established, the court of appeals

explained that its most factually analogous precedent

held that conduct substantially similar to Officer

Thompson’s was within the bounds of the Fourth

Amendment. See Pet.App. 5-7 (discussing Hubbard,

257 F.3d at 898-99). Even though the court of

appeals recognized some minor factual distinctions

between the two cases, Hubbard—at the very least—

made the state of the law uncertain in the

circumstances Officer Thompson encountered,

thereby compelling qualified immunity.

The court of appeals then dispensed with the

three cases petitioners offered to show clearly

established authority.

Each was substantially

different from this case—in constitutionally

significant ways—and came nowhere near the

particularity required, especially in the Fourth

Amendment context.

Pet.App. 7-8.

None did

anything more than “create uncertainty for someone

in Officer Thompson’s shoes,” well short of what this

Court’s precedents require. Pet.App. 7.

In petitioners’ extended discussion seeking to

upend the court of appeals’ careful analysis, they

make (at least) two critical analytical errors—one

with respect to how they form the relevant factual

record, and one with respect to how they analyze the

law.

1. On the factual record, petitioners improperly

use facts from the perspective of other officers with a

different vantage point than Officer Thompson. This

misstep permeates petitioners’ discussion of the

incident, with petitioners frequently referencing

Officer Straub’s subjective belief that Stokes was

surrendering. But Officer Straub had an entirely

different perspective on the incident than did Officer

Thompson. Most critically, Officer Straub could see

both of Stokes’ hands as he raised them; it is

undisputed that from the time Stokes accessed the

vehicle, Officer Thompson never saw, and could not

see, Stokes’ right hand.

This Court’s precedents confirm petitioners’ tactic

is wrong. Because actions under § 1983 (and in turn

qualified immunity) evaluate individual actions of

individual officers, this Court has “stressed” that the

reasonableness of force used must be evaluated “from

the perspective and with the knowledge of the

defendant officer.”

Kingsley, 576 U.S. at 399.

Equally problematic is petitioners’ refrain that

Officer Thompson should have known Stokes was

“unarmed” after he accessed the vehicle. While that

turned out to be true, it is irrelevant to the qualified

immunity inquiry; it is undisputed that Officer

Thompson could not see Stokes’ right hand at any

time after he accessed the vehicle. It is only after the

fact that Officer Thompson learned Stokes was

unarmed after Stokes left the car, and “[f]acts an

officer learns after the incident ends—whether those

facts would support granting immunity or denying

it—are not relevant.” Hernandez, 137 S. Ct. at 2007.

Not surprisingly, with this Court’s precedents

faithfully applied, the applicable record is quite

different.

Stokes matched the description of a

suspect fleeing from a theft. He ran into the parking

lot where Officer Thompson was on patrol, and he

made eye contact with Officer Thompson as he ran

by him, with Officer Thompson dressed in full police

uniform and pointing his service weapon at Stokes.

Instead of surrendering, Stokes ran past Officer

Thompson, to a car door and opened it. He then shut

the door, turned in the direction of Officer Straub—

from whom he had been fleeing for several city

blocks—and began running toward him.

Once

Stokes began to run away from the vehicle, Officer

Thompson could never see his right hand. As Stokes

raised his hands to his waist while moving toward

Officer Straub, Officer Thompson thought Stokes

was about to ambush his fellow officer, and he fired

his service weapon three times, striking Stokes twice.

Also lost in petitioners’ discussion is that this

entire incident—from the time Officer Thompson

first saw Stokes, to the time Officer Thompson

fired—occurred in seven to ten seconds. By the time

Stokes reached the car, opened then closed the door,

and began running back toward the officer from

whom he was fleeing, Officer Thompson had a split

second to decide how to react when he saw Stokes

raising his right arm in a manner consistent with

raising a weapon. The qualified-immunity inquiry

provides for just this circumstance, recognizing “that

police officers are often forced to make split-second

judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount

of force that is necessary in a particular situation.”

Kisela, 138 S. Ct. at 1152 (quoting Graham v. Connor,

490 U.S. 386, 396-97 (1989)).

This proper factual record, evaluated alongside

relevant precedent, illustrates the law is not clearly

established here.

Before proceeding to the legal analysis, it is

important to address petitioners’ suggestion that this

Court should summarily reverse the court of appeals’

decision because it supposedly resolved factual issues

in favor of respondents. See Pet. 28-29. Nothing

could be further from the truth. The first time this

case came to the court of appeals, it remanded for the

express purpose of identifying the plaintiff-friendly

version of the facts. Pet.App. 38-39. Then, once the

case returned, the court meticulously recited the

plaintiff-friendly facts, being careful to limit its

analysis accordingly. See, e.g., Pet.App. 5 (“Applying

these plaintiff-friendly facts, our task is now to

evaluate the family’s excessive-force claim against

Officer Thompson.”).

The court of appeals actually went above and

beyond in this respect.

For example, Officer

Thompson testified that he gave verbal commands to

Stokes, saying “drop the gun” and “show me your

hands.” C.A. App. 2109. Officer Thompson’s partner

likewise testified that she heard him give commands,

which she remembered as “get on the ground.” C.A.

App. 0125.

Petitioners argued, however, that

because Officer Straub—who was in a foot chase with

Stokes and hadn’t yet arrived from around the

building when Officer Thompson began his

interaction with Stokes—testified that he did not

hear any commands, they should be entitled to the

inference that no commands whatsoever were given.

Although it is far from clear that such an inference is

warranted, the court of appeals assumed Officer

Thompson gave no verbal warnings. Pet.App. 4.

Similarly, Officer Thompson testified he saw a

gun in Stokes’ right hand when he entered the

parking lot. C.A. App. 0095, 2104. Petitioners

claimed this was controverted by the testimony of

two other officers who testified that they did not see

Stokes with a weapon; but both also testified that

they could not see Stokes’ hands in the parking lot.

Pet.App. 19-20. Despite the lack of specific evidence

controverting Officer Thompson’s testimony, the

court of appeals explained that “even if Officer

Thompson insists that he saw a gun in Stokes’s hand

during the chase, we must assume that he did not

have one.” Pet.App. 5.3

At every juncture, the court of appeals deferred to

petitioners’ factual narrative. The only concrete

example petitioners allege of a “defendant-friendly”

fact is that Stokes opened and closed the car door.

But as discussed (supra at 21-22), petitioners

3 These

two inferences also render this case ill-suited for

review, as this Court would also have to determine if such

inferences were proper.

conceded this fact in their appellate briefing and

waived the ability to argue otherwise. See also

Pet.App. 4 n.2. There is no basis for this Court to

summarily reverse.

2. Petitioners also make a significant error in

their legal analysis, flipping the clearly-established

burden on its head. Specifically, petitioners claim

the court of appeals relied on a case that was not

factually similar enough to illustrate that Officer

Thompson’s conduct was not a clearly established

constitutional violation. But that has it backwards—

it is the plaintiff’s burden to show the specific

violation is clearly established. Rivas-Villegas, 142 S.

Ct. at 8 (“Thus, to show a violation of clearly

established law, [the plaintiff] must identify a case

that put [the officer] on notice that his specific

conduct was unlawful.”).

As the court of appeals correctly described, its

closest prior authority suggested that Officer

Thompson’s conduct was constitutional; but, at the

very least, even with some minor factual distinctions,

it created uncertainty. Pet.App. 5-7. And the three

cases petitioners offered to show otherwise came

nowhere near the level of specificity required,

especially in Fourth Amendment cases. Pet.App. 7-8.

These conclusions are correct.

The court of appeals relied primarily on Hubbard,

where officers chased a suspect who fell over a fence.

257 F.3d at 898. While getting up, he looked over his

shoulder at an officer, “and moved his arms as

though reaching for a weapon at waist level.” Ibid.

The officer ordered the suspect to stop, then fired,

killing the suspect; no weapon was found. Ibid. The

Eighth Circuit found the officer’s conduct

constitutional, explaining that a police officer “is not

constitutionally required to wait until he sets eyes

upon the weapon before employing deadly force to

protect himself against a fleeing suspect who turns

and moves as though to draw a gun.” Id. at 899.

Here, the court of appeals described the similarity in

Stokes’ body movements, as well as the similarity of

the officers’ obstructed views, unable to see the

suspects’ hands. Pet.App. 6. Thus, even though

there were some factual distinctions, Hubbard at

least created substantial uncertainty.4

Petitioners’ efforts to revive the three citations

they offered the court of appeals fare no better. Each

has fundamental and constitutionally significant

distinctions that render them incapable of serving as

clearly established authority. Petitioners begin with

Tennessee v. Garner, 471 U.S. 1 (1985), but this

Court has already described that “the general rules

set forth in Garner and Graham do not by

themselves create clearly established law outside an

4 Moreover,

the court of appeals did not need to reach the

additional Eighth Circuit cases respondents cited in their

briefing, which reinforced Hubbard. See, e.g., Billingsley v. City

of Omaha, 277 F.3d 990 (8th Cir. 2002) (upholding qualified

immunity for off-duty officer who never saw a home-invasion

suspect with a weapon, chased the suspect out of the house

causing him to jump off a deck, then fatally shot the suspect in

the back when he turned his shoulder because the officer could

not see the suspect’s hand); Loch v. City of Litchfield, 689 F.3d

961 (8th Cir. 2012) (affirming summary judgment on qualified

immunity for officer who never saw the unarmed suspect with a

weapon despite prior reports he had one, heard several

witnesses shouting that the suspect was unarmed as the officer

approached, yet fired at the suspect while the suspect’s arms

were raised).

obvious case.” Kisela, 138 S. Ct. at 1153 (citation

omitted).5 And to see how different the actual facts

in Garner are from the facts here, this Court should

look no further than petitioners’ own description of

Garner in their court of appeals brief: “The officer

saw Garner’s hands, saw his face and saw no weapon

and did not believe Garner to be armed.” C.A.

Appellants Br. 44. The record here is precisely the

opposite.

Ngo v. Storlie, 495 F.3d 597 (8th Cir. 2007) does

not help petitioners either, because the victim’s

hands were visible the entire time. Further, the

victim (a plain-clothes police officer) did not match

the description of the suspect and was kneeling in

the street with his unarmed hands waving above his

head. Id. at 603. In that circumstance, it is

unsurprising the officer was not entitled to qualified

immunity when he opened fire on the victim with a

semiautomatic weapon. Ibid.

Nor does Nance v. Sammis, 586 F.3d 604 (8th Cir.

2009) provide clearly established law. Once again,

the officers there could see the suspect’s hands the

entire time. Id. at 610-11. The suspect, a 12-yearold boy, had a toy gun that remained in his

waistband. Ibid. At least one witness testified that

the boy raised both arms above his head before being

shot. Ibid. Although the officers disputed what he

did with his hands, the court affirmed the denial of

summary judgment. Ibid. Here, of course, there is

no suggestion that Stokes ever had his hands raised

over his head, nor is there any suggestion that

5 As the discussion of then-existing Eighth Circuit precedent

shows, this is far from the “rare, obvious case.”

Officer Thompson could see Stokes’ right hand after

he closed the car door.

Petitioners’ cases are insufficient to show clearly

established law, especially considering contrary

Eighth Circuit authority involving much more

similar facts. Most critically, Officer Thompson

could never see Stokes’ right hand after he opened

and shut the car door. The court of appeals correctly

explained that governing authority at least created

uncertainty for Officer Thompson, justifying

qualified immunity.6

The court of appeals’ decision is correct in all

respects.

B. This Court should not abandon qualified

immunity.

This Court has consistently applied qualified

immunity for decades. “The Court’s embrace of

qualified immunity has . . . been emphatic, frequent,

longstanding, and nonideological.” Aaron J. Nielson

& Christopher J. Walker, A Defense of Qualified

Immunity, 93 Notre Dame L. Rev. 1853, 1858 (2018).

Indeed, just last term, this Court unanimously

reversed two denials of qualified immunity due to the

absence of particularized authority to show clearly

6 Petitioners also cite to cases from other circuits, claiming

they show a “robust consensus” that could separately form

clearly established law. Pet. 25-26. First, that is not accurate

when factually analogous cases within the governing circuit

illustrate the law is not clearly established. Second, in any

event, petitioners did not make this argument, or cite these

cases, to the court of appeals. See OBB Personenverkehr AG v.

Sachs, 577 U.S. 27, 38 (2015) (“Absent unusual circumstances—

none of which is present here—we will not entertain arguments

not made below.”).

established law. Bond, 142 S. Ct. at 11-12; RivasVillegas, 142 S. Ct. at 7-8.

The doctrine is especially critical for law

enforcement. Unlike many other types of public

office, the use of physical force—and the attendant

risk of physical harm—is an inherent part of the job.

And situations where force may be required often do

not present an adequate opportunity to determine

whether the force contemplated would be considered

“reasonable” for purposes of the Fourth Amendment.

The problem is two-fold; what constitutes an

“unreasonable” search or seizure under the Fourth

Amendment is a necessarily fact-specific inquiry, and

thus “it may be difficult for an officer to know

whether a search or seizure will be deemed

reasonable given the precise situation encountered.”

Ziglar, 137 S. Ct. at 1866. Aggravating this problem,

“police officers are often forced to make split-second

judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount

of force that is necessary in a particular situation.”

Graham, 490 U.S. at 396-97.

As a result of these complexities, “reasonable

mistakes can be made as to the legal constraints on

particular police conduct” and it “is sometimes

difficult for an officer to determine how the relevant

legal doctrine, here excessive force, will apply to the

factual situation the officer confronts.” Saucier, 533

U.S. at 205. But rather than holding an officer to the

“20/20 vision of hindsight” by requiring law

enforcement to be their own on-the-spot lawyer,

conducting fact-intensive analyses in seconds,

qualified immunity reflects a policy choice to “defer[]

to the judgment of reasonable officers on the scene.”

Id. at 204-05.7

As is the case with any immunity, controversy is

unavoidable, as “the resolution of immunity

questions inherently requires a balance between the

evils inevitable in any available alternative.” Harlow,

457 U.S. at 813-14. But because of the “limitless

factual circumstances” in which the use of force may

be used, there is not always “a clear answer as to

whether a particular application of force will be

deemed excessive by the courts.” Saucier, 533 U.S.

at 205-06. Consequently, qualified immunity is the

“best attainable accommodation of competing

values.” Harlow, 457 U.S. at 814.

As then-Chief Justice Warren put it: “A

policeman’s lot is not so unhappy that he must

choose between being charged with dereliction of

duty if he does not [use force], and being mulcted in

damages if he does.” Pierson v. Ray, 386 U.S. 547,

555 (1967).

CONCLUSION

This Court should deny the petition.

7 Due

to the policy-oriented nature of qualified immunity,

this Court should also defer to current debate about the scope of

qualified immunity occurring within the politically accountable

branches. They legislate and govern against the backdrop of

this Court’s qualified-immunity doctrine, and they are

empowered to change it should they wish to do so.

Respectfully submitted,