Amicus Curiae Brief — Juan Carlos Salazar, Petitioner v. Juan Rene Molina

No. 22-564

In the Supreme Court of the United States

_________________

JUAN CARLOS SALAZAR,

PETITIONER,

v.

JUAN RENE MOLINA,

RESPONDENT.

____________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

____________

BRIEF OF THE TEXAS CIVIL RIGHTS

PROJECT IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

____________

LINDA T. COBERLY

Winston & Strawn LLP

35 W. Wacker Drive

Chicago, IL 60601

(312) 558-5600

DUSTIN RYNDERS

TRAVIS FIFE

Texas Civil Rights Project

2100 Travis, Suite 360

Houston, TX 77002

MOLLY PETCHENIK

Texas Civil Rights Project

1405 Montopolis Drive

Austin, TX 78741

BRANDON DUKE

Counsel of Record

Winston & Strawn LLP

800 Capitol Street,

Suite 2400

Houston, TX 77002

(713) 651-2600

BDuke@winston.com

BROOKE C. WILSON

EMILY WILKINSON

Winston & Strawn LLP

2121 N. Pearl Street

Dallas, TX 75201

(214) 453-6500

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT ............................................................... 5

I.

II.

The Fifth Circuit’s per se rule improperly

permits the use of force after a suspect flees,

even when they surrender and pose no

objective threat of harm. .................................. 5

A.

The Fifth Circuit’s rule departs from

Graham’s requirement that a change

of circumstances, including the

particular circumstances of a

surrender, are critical to evaluating

excessive force ....................................... 5

B.

The Fifth Circuit’s new “could

perceive” standard is also contrary to

Graham ................................................ 10

The Fifth Circuit’s new rule fails to

account for the many non-dangerous

reasons why a person might flee. .................. 12

CONCLUSION ......................................................... 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alberty v. United States,

162 U.S. 499 (1896) ................................................ 4

Alicea v. Thomas,

815 F.3d 283 (7th Cir. 2016) ...................... 4, 7, 8, 9

Baker v. City of Hamilton,

471 F.3d 601 (6th Cir. 2006) .................................. 7

Carroll v. Ellington,

800 F.3d 154 (5th Cir. 2015) ................................ 16

Com. v. Warren,

475 Mass. 530 (2016) ............................................ 14

Graham v. Connor,

490 U.S. 386 (1989) .................................. 3, 7, 9, 12

Headwaters Forest Def. v. Cnty. of

Humboldt,

276 F.3d 1125 (9th Cir. 2002) ................................ 9

Hickory v. United States,

160 U.S. 408 (1896) .............................................. 13

Illinois v. Wardlow,

528 U.S. 119 (U.S. 2000) ................................ 13, 15

Lamont v. New Jersey,

637 F.3d 177 (3d Cir. 2011) ................................ 6, 8

iii

Lytle v. Bexar Cnty., Tex.,

560 F.3d 404 (5th Cir. 2009) ........................ 3, 8, 10

Meyers v. Baltimore Cnty., Md.,

713 F.3d 723 (4th Cir. 2013) ................................ 10

Miller v. Gonzalez,

761 F.3d 822 (7th Cir. 2014) .............................. 4, 7

Ortiz ex rel. Ortiz v. Kazimer,

811 F.3d 848 (6th Cir. 2016) .............. 4, 7, 8, 11, 16

Perea v. Baca,

817 F.3d 1198 (10th Cir. 2016) ............................ 10

Richards v. Wisconsin,

520 U.S. 385 (1997) ................................................ 5

Salazar v. Molina,

37 F.4th 278 (5th Cir. 2022) ....... 3, 4, 6, 7, 8, 11, 12

Salazar v. Zapata Cnty, Tex., et al.,

2020 WL 13609390 (S.D. Tex. Apr.

23, 2020).................................................................. 8

Wate v. Kubler,

839 F.3d 1012 (11th Cir. 2016) ........................ 9, 10

Waterman v. Batton,

393 F.3d 471 (4th Cir. 2005) .................................. 6

iv

Other Authorities

Amina Khan, Getting Killed by Police is a

Leading Cause of Death for Young [B]lack

Men in America, L.A. TIMES (Aug. 19,

2019),

https://www.latimes.com/science/story/201

9-08-15/police-shootings-are-a-leadingcause-of-death-for-black-men ............................... 15

C. Katz & Z. Barnetz, The Behavior

Patterns of Abused Children as

Described in their Testimonies, 38

CHILD ABUSE & NEGLECT 1033, 1036

(2014) .................................................................... 17

Carmit Katz et al., Beyond Fight, Flight,

and Freeze: Towards a New

Conceptualization of Peritraumatic

Responses to Child Sexual Abuse

Based on Retrospective Accounts of

Adult Survivors, 112 CHILD ABUSE &

NEGLECT 104904, 104905 (2021) .......................... 16

Carmit Katz & Racheli Nicolet, “If Only

I Could Have Stopped It”: Reflections

of Adult Child Sexual Abuse

Survivors on Their Responses During

the Abuse, 37 J. OF INTERPERSONAL

VIOLENCE NP2076, NP2077 (2020)

(indicating that W.B Cannon first

described the concept in 1925) ............................. 17

v

Edith Perez, Don’t Make a Run for It:

Rethinking Illinois v. Wardlow in

Light of Police Shootings and the

Nature of Reasonable Suspicion, 31

U. FLA. J.L. & PUB. POL’Y 137, 148

(2020) .................................................................... 15

Harvard Health Publ’g, Harvard Med. Sch.,

Understanding the Stress Response (July

6, 2020),

https://www.health.harvard.edu/stayinghealthy/understanding-the-stressresponse ................................................................ 17

Justin T. Pickett, Amanda Graham &

Francis T. Cullen, The American

Racial Divide in Fear of the Police, 60

CRIMINOLOGY 291, 291 (2002) .............................. 15

R. Smith Lee & M. A. Robinson, That's

My Number One Fear in Life. It's The

Police: Examining Young Black

Men's Exposures to Trauma and Loss

Resulting from Police Violence and

Police Killings, J. OF BLACK PSYCH.

143, 156 (2019) ..................................................... 14

Rebecca Jacoby et al., Individual Stress

Response Patterns: Preliminary

Findings and Possible Implications,

18 PLOS ONE 255889, 255890 (2021)................. 16

INTEREST OF AMICUS CURIAE *

Amicus submits this brief to offer the perspective of

practitioners and legal advocates whose work focuses

on the most harmful practices in the criminal legal

system. The Texas Civil Rights Project is a nonprofit

organization that advocates for the civil rights of

Texans. Using litigation and other advocacy tools, the

Texas Civil Rights Project’s Criminal Injustice Reform

Program works to remedy injustices in Texas’s

criminal legal system for those suffering inside and

outside of jails and prisons, particularly from the

state’s most vulnerable populations.

The issue presented in this case—whether the

Fourth Amendment’s protection from excessive force is

reduced at the time a person surrenders if that person

initially fled from the police—is of the utmost

importance to the work Amicus does to ensure the fair

and equitable administration of justice. By allowing

past flight to override all circumstances, the Fifth

Circuit’s decision departs from this Court’s precedents

and conflicts with decisions from the Sixth and

Seventh Circuits. The consequences of this troubling

decision are far-reaching, ignoring many nondangerous and even innocuous reasons why a person

might run from the police. And by allowing an officer

to assume automatically that the person poses an

* Consistent with Rule 37.2, counsel for the Texas Civil Rights

Project provided proper notice of its intention to file this brief.

Counsel also certifies that no counsel for any party authored

this brief in whole or in part, and no person or entity has made

a monetary contribution intended to fund the preparation or

submission of this brief. See R. 37.6.

2

immediate threat and will continue to resist—even in

the face of overwhelming evidence to the contrary—the

decision will actually discourage safe surrenders in

future cases.

The Texas Civil Rights Project urges the Court to

grant certiorari and reverse the decision below.

3

SUMMARY OF THE ARGUMENT

The Fifth Circuit’s decision creates a new per se

rule authorizing an officer’s use of force based solely

on a suspect’s past flight. In doing so, the Fifth Circuit

acknowledges that its rule means that a person who

initially flees does not “receive the same Fourth

Amendment protection” as those who “promptly

surrender[].” Salazar v. Molina, 37 F.4th 278, 282–83

(5th Cir. 2022). Thus, even if the suspect later and

unambiguously surrenders, is fully compliant, and is

lying prone on the ground, he or she can always be

tased by an officer, or subjected to other intermediate

force, before being arrested. In short, if you flee from

the police, they have complete license to use force, even

if they face no danger at all.

By making past behavior determinative, the Fifth

Circuit’s decision departs from this Court’s instruction

in Graham v. Connor that courts must give “careful

attention to the facts and circumstances” that an

officer confronts at the time the force is used, including

any change in circumstances when a suspect

subsequently surrenders. 490 U.S. 386, 396 (1989).

And though force may be justified earlier in a sequence

of “rapidly evolving” events, later events might

eliminate the need for force. Id. at 397. Indeed, several

circuits, including the Fifth Circuit, have recognized

that “an exercise of force that is reasonable at one

moment can become unreasonable in the next if the

justification for the use of force has ceased.” Lytle v.

Bexar Cnty., Tex., 560 F.3d 404, 413 (5th Cir. 2009)

(citing cases from the Third, Fourth, Seventh

Circuits).

The Fifth Circuit’s new rule also conflicts with

decisions from Sixth and Seventh Circuits, which

4

expressly reject reliance on a suspect’s prior flight

alone to justify the use of force after the suspect has

surrendered. Ortiz ex rel. Ortiz v. Kazimer, 811 F.3d

848, 852 (6th Cir. 2016) (citing Baker v. City of

Hamilton, 471 F.3d 601, 607–08 (6th Cir. 2006));

Alicea v. Thomas, 815 F.3d 283, 289 (7th Cir. 2016)

(citing Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir.

2014)). Rather, both circuits require some feature

present during the surrender suggesting it is false.

Ortiz, 811 F.3d at 852; Alicea, 815 F.3d at 289.

By contrast, the Fifth Circuit’s decision improperly

imports a “could perceive” standard into the Graham

analysis to allow an officer to escape liability because

of the possibility that the suspect poses a threat of

harm based on the past flight alone. Salazar, 37 F.4th

at 283. Past behavior now becomes determinative,

putting a presumptive thumb on the scale against any

suspect who flees for any reason. But flight can happen

for many reasons, including reasons that do not

support a presumption of continued danger. And the

Fifth Circuit’s presumption results in dangers of its

own, as fleeing suspects may now face an increased

degree of force even if they surrender. As the Seventh

Circuit explained, surrender “should not be futile as a

means to deescalate a confrontation with law

enforcement.” Alicea, 815 F.3d at 289.

The Court should grant the petition to resolve the

circuit split and reject the Fifth Circuit’s new per se

rule, which disregards Graham’s requirement to

evaluate the circumstances facing the officer at the

moment an officer decided to use force and ignores the

many reasons a person might initially flee from the

police.

5

ARGUMENT

I.

The Fifth Circuit’s per se rule improperly

permits the use of force after a suspect

flees, even when they surrender and pose

no objective threat of harm.

The sweeping language of the Fifth Circuit’s

decision creates a new per se rule for excessive force

cases: when a fleeing suspect stops and surrenders,

force is permissible simply because of the prior flight.

In other words, police officers have automatic

justification to use force and disregard a surrender

based solely on the fact that suspect initially fled—

nothing else. This new rule suffers from the

“considerable overgeneralization” this Court has

refused to tolerate when core Fourth Amendment

interests are at stake. Richards v. Wisconsin, 520 U.S.

385, 393 & n.4 (1997). And the decision curtails the

required assessment of the actual circumstances faced

when force is used under Graham. It should be

reversed.

A.

The Fifth Circuit’s rule departs from

Graham’s requirement that a change

of circumstances, including the

particular

circumstances

of

a

surrender, are critical to evaluating

excessive force.

When assessing whether an officer’s use of force is

objectively reasonable under the Fourth Amendment,

courts must pay “careful attention to the facts and

circumstances of each particular case” and consider

the following factors: (1) “the severity of the crime at

issue,” (2) “whether the suspect poses an immediate

threat to the safety of the officers or others,” and (3)

6

“whether he is actively resisting arrest or attempting

to evade arrest by flight.” Graham, 490 U.S. at 396.

Integral to these Graham factors is a moment-bymoment analysis as to the circumstances facing the

officer. Id. at 396–97 (requiring courts to assess “the

amount of force that is necessary in a particular

situation” and “reasonableness at the moment”

(emphasis added)); see also Lamont v. New Jersey, 637

F.3d 177, 184 (3d Cir. 2011) (“Even where an officer is

initially justified in using force, he may not continue

to use such force after it has become evident that the

threat justifying the force has vanished.”); Alicea, 815

F.3d at 288 (“If an officer’s threat perception changes,

so too should her force calculus.”); Waterman v. Batton,

393 F.3d 471, 481 (4th Cir. 2005) (“[F]orce justified at

the beginning of an encounter is not justified even

seconds later if the justification for the initial force has

been eliminated.” (compiling cases)). Here, then, the

court was required to consider whether there was an

“immediate threat” to the officer’s or others’ safety and

whether Salazar was “actively . . . attempting to evade

arrest by flight” at the moment the officer tased

Salazar. Graham, 490 U.S. at 396.

Instead, the Fifth Circuit adopted a new general

rule based on what it viewed as “common sense.” See

Salazar, 37 F.4th at 282. Notably, the Fifth Circuit

fails to cite any precedent for its pronouncement that

“when a suspect has put officers and bystanders in

harm’s way to try to evade capture, it is reasonable for

officers to question whether the now-cornered

suspect’s purported surrender is a ploy.” Id. at 282.

Now, every flight casts doubt on every surrender. And

no surrender can be authentic if the suspect fled.

7

In doing so, the Fifth Circuit split with at least two

other circuits that have expressly rejected similar

categorical determinations based on a suspect’s prior

flight. Ortiz, 811 F.3d 852 (“[T]he gratuitous use of

force against a suspect who has ‘surrendered’ is

excessive as a matter of law . . . even when the suspect

has originally resisted arrest (say by running from the

police, as here).”) (cleaned up); Baker, 471 F.3d at 607–

08 (“[That Baker had attempted to evade arrest does

not preclude his claim of excessive force against Officer

Taylor or render Officer Taylor’s use of his asp

reasonable.”); Alicea, 815 F.3d at 289 (“The sole fact a

suspect has resisted arrest before cannot justify

disregarding his surrender in deciding whether and

how to use force.”); Miller, 761 F.3d at 829 (“This

prohibition against significant force against a subdued

suspect applies notwithstanding a suspect’s previous

behavior—including resisting arrest, threatening

officer safety, or potentially carrying a weapon.”

(compiling cases)).

The Fifth Circuit acknowledges that this new rule

categorically gives less Fourth Amendment protection

to suspects who flee before surrendering: “[A] suspect

cannot refuse to surrender and instead lead police on

a dangerous hot pursuit—and then turn around,

appear to surrender, and receive the same Fourth

Amendment protection from immediate force he would

have received had he promptly surrendered in the first

place.” Salazar, 37 F.4th at 282–83. This allows force

as punishment, plain and simple.

The Fifth Circuit pays lip service to the momentby-moment consideration required by Graham,

acknowledging that officers are “forced to make splitsecond judgments—in circumstances that are tense,

8

uncertain, and rapidly evolving” Salazar, 37 F.4th at

281 (quoting Graham, 490 U.S. at 396–97). Yet, in

applying its new rule, the Fifth Circuit’s analysis looks

past the specific facts surrounding Salazar’s surrender

and the “particular circumstances” Molina faced when

he rushed in to tase Salazar immediately following his

surrender—the critical moment to assess the situation

from the officer’s reasonable perspective. Compare

Ortiz, 811 at 852 (noting the officer “fail[ed] to identify

any feature of [the suspect’s] surrender that would

give a reasonable officer pause that [the suspect] was

fabricating his submission to the officer’s authority”

and that “generalized speculation about the force

required in other situations (say, where a suspect is

actually faking) is immaterial” when the suspect “gave

no signs of faking” (cleaned up)).

Indeed, though Salazar had previously fled, at the

time of his surrender, his hands were raised, and he

lay face down on the ground yelling, “I’m not resisting.

Please don’t tase me! I have asthma!” Salazar v.

Zapata Cnty, Tex., et al., No. 5:16-CV-292, 2020 WL

13609390, at *2 (S.D. Tex. Apr. 23, 2020). Thus, the

circumstances at the moment of Salazar’s surrender—

as judged from the perspective of a reasonable officer

on the scene—did not necessitate or justify deploying

a Taser. But because of the Fifth Circuit’s generalized

assumptions about Salazar’s past flight alone, it found

the tasing reasonable. Salazar, 37 F. 4th at 284.

When a fleeing suspect stops and raises his hands

in surrender, the act of surrendering necessarily

changes the circumstances. Force that was perhaps

justified seconds before may no longer be if there is no

indication that the suspect remains dangerous. See

Lytle, 560 F.3d at 413; Lamont, 637 F.3d at 184;

9

Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d

1125, 1130 (9th Cir. 2002) (“[I]n a situation in which

an arrestee surrenders and is rendered helpless, any

reasonable officer would know that a continued use of

the weapon . . . constitutes excessive force.”) (emphasis

removed and citations omitted). The Fifth Circuit’s

rule allows officers to ignore these changed

circumstances. Moreover, the decision dangerously

renders a fleeing suspect’s attempt to surrender futile,

hindering any attempt by the suspect to de-escalate

the situation. Compare Alicea, 815 F.3d at 289 (“While

surrender is not always genuine, it should not be futile

as a means to de-escalate a confrontation with law

enforcement.”)

The importance of assessing the particular facts at

the moment the officer decides to use force is a deeply

embedded feature of the Graham analysis. Even when

an officer deploys a taser multiple times, the first, and

even the second tasing, could be held reasonable while

a third tasing could held excessive. See, e.g., Wate v.

Kubler, 839 F.3d 1012, 1021 (11th Cir. 2016) (third

tasing held excessive where suspect, who was resisting

during the first and second tasing, became immobile,

still, and handcuffed at the point of the third tasing,

such that he was no longer a flight risk or danger to

the officers or public). In Wate, the Eleventh Circuit

noted that while the full altercation between the police

officers and the suspect was around twenty minutes,

“the critical time period for purposes of determining

whether [the officer’s] use of the Taser on [the suspect]

constituted

excessive

force

span[ed]

two

minutes . . . just before the first activation [of the

Taser] . . . and the time of the fifth Taser deployment.”

Id. at 1020–21 (holding that because the suspect “was

10

no longer resisting after the first two tasings” the

officer’s “further use of the Taser was wholly

unnecessary”).

Circuit courts across the country are consistent

with Wate. See Perea v. Baca, 817 F.3d 1198, 1204

(10th Cir. 2016) (holding it unreasonable to repeatedly

use Taser in “‘stun mode’ within the span of two

minutes” because “[e]ven if [the suspect] initially

posed a threat to the officers that justified tasering

him, the justification disappeared when [the suspect]

was under the officers’ control”); Meyers v. Baltimore

Cnty., Md., 713 F.3d 723, 733 (4th Cir. 2013) (Although

first three uses of the Taser were objectively

reasonable, the additional seven Taser shocks were

considered

unreasonable,

because

he

had

“relinquished the baseball bat and fell to the floor . . .

no longer was actively resisting arrest, and did not

pose a continuing threat to the officers’ safety”).

By failing to consider the particular situation that

an officer faced “at the moment” he decided to use

force, the Fifth Circuit’s decision departs from wellestablished application of Graham.

B.

The Fifth Circuit’s new “could

perceive” standard is also contrary

to Graham.

Before the decision below, the Fifth Circuit also

recognized that a moment-by-moment analysis is

necessary, noting “an exercise of force that is

reasonable at one moment can become unreasonable

in the next if the justification for the use of force has

ceased.” Lytle, 560 F.3d at 413. But the Fifth Circuit

has now sidestepped its prior precedent (along with

Graham), holding that the justification for a use of

11

force “does not always require that a suspect be

actively resisting, fleeing, or attacking an officer at the

precise moment force is used.” Salazar, 37 F.4th at 283

(cleaned up). Rather, “the relevant inquiry is whether

the officer used a justifiable level of force in light of the

continuing threat of harm that a reasonable officer

could perceive.” Id. (emphasis added).

The Fifth Circuit’s “could perceive” standard

undermines Graham where “the question is whether

the officers’ actions are ‘objectively reasonable’ in light

of the facts and circumstances confronting them.” 490

U.S. at 397 (emphasis added) (quoting Scott v. United

States, 436 U.S. 128, 137–39 (1978)). Graham does not

allow for some potential threat that an officer could

perceive. As detailed above, Graham requires a court

to consider the moment that the force is used and

whether the facts and circumstances warrant such

force from the perspective of a reasonable officer.

Furthermore, a “could perceive” standard erodes

the objective reasonableness requirement under

Graham. It allows an officer to escape liability because

of the mere possibility that the suspect poses a threat

of harm. See Ortiz, 811 F.3d at 852 (the officer’s

“generalized speculation about the force required in

other situations (say, where a suspect is actually

faking) is immaterial to this case—where eyewitnesses

say Juan gave no signs of faking” (quoting Malory v.

Whiting, 489 Fed. Appx. 78, 84 (6th Cir. 2012))

(cleaned up)). This would allow courts to ignore

conflicting evidence showing that the suspect was not

posing a risk of harm to the officer or others in the

particular situation the officer was facing.

Here, the generalized possibility that Salazar was

a threat under the court’s analysis was based on

12

nothing more than the flight itself. The Fifth Circuit

acknowledges as much: “[W]hen a suspect has put

officers and bystanders in harm’s way to try to evade

capture, it is reasonable for officers to question

whether the now-cornered suspect’s purported

surrender is a ploy.” Salazar, 37 F.4th at 282.

Mere possibilities—without nothing more than

flight—is not objectively reasonable. Should the

decision stand, every police pursuit of a fleeing vehicle

could give rise to use of intermediate force even

without any objective evidence of a threat to the

officer. This is not and cannot be the law.

This Court should grant review and reverse the

Fifth Circuit’s decision to restore the Fourth

Amendment right from excessive force of those in this

circuit who seek to safely surrender to the police.

II.

The Fifth Circuit’s new rule fails to

account for the many non-dangerous

reasons why a person might flee.

By allowing officers to assume that a suspect’s

surrender may not be genuine based on past flight

alone, Salazar tips two of the three “fact-intensive”

Graham factors to the same outcome every time: force

becomes always reasonable. In the Fifth Circuit, then,

there can no longer be a safe and authentic surrender.

This Court has long cautioned that past flight alone

should not preclude a safe surrender:

In modern times more correct views have

prevailed, and the evasion of or flight

from justice seems now nearly reduced to

its true place in the administration of the

criminal law, namely, that of a

13

circumstance—a fact which it is always of

importance to take into consideration,

and combined with others may afford

strong evidence of guilt, but which, like

any other piece of presumptive evidence,

it is equally absurd and dangerous to

invest with infallibility.

Hickory v. United States, 160 U.S. 408, 420 (1896)

(cleaned up).

Justice Stevens also recognized that categorical

rules should not be automatically inferred based on a

suspect’s flight alone: “Given the diversity and

frequency of possible motivations for flight, it would be

profoundly unwise to endorse [a] per se rule.” Illinois

v. Wardlow, 528 U.S. 119, 129 (U.S. 2000) (Stephens,

J.) (concurring in part, dissenting in part). He

explained that “[t]he probative force of the inferences

to be drawn from flight is a function of the varied

circumstances in which it occurs. . . lead[ing] us to

avoid categorical rules concerning a person’s flight and

the presumptions to be drawn therefrom.” Id. at 135.

The Fifth Circuit’s recognition of a less-protective

tier of Fourth Amendment rights based on

unsupported assumptions of prior flight alone is

flawed because it ignores the innocent—or plainly

innocuous—reasons why someone might flee.

The Court has historically held that flight to escape

police detention may have an entirely innocent

motivation:

[I]t is a matter of common knowledge that

men who are entirely innocent do

sometimes fly from the scene of a crime

through fear of being apprehended as the

14

guilty parties, or from an unwillingness

to appear as witnesses. Nor is it true as

an accepted axiom of criminal law that

‘the wicked flee when no man pursueth,

but the righteous are as bold as a lion.’

Innocent men sometimes hesitate to

confront a jury—not necessarily because

they fear that the jury will not protect

them, but because they do not wish their

names to appear in connection with

criminal acts, are humiliated at being

obliged to incur the popular odium of an

arrest and trial, or because they do not

wish to be put to the annoyance or

expense of defending themselves.

Alberty v. United States, 162 U.S. 499, 511 (1896).

Putting aside guilt or innocence, fear alone can

often lead to initial flight. See, e.g., Com. v. Warren,

475 Mass. 530, 540 (2016) (noting that a study

conducted by the Boston Police Department found that

“black males in Boston are disproportionately and

repeatedly targeted for [field interrogation and

observation] encounters,” which “suggests a reason for

flight totally unrelated to consciousness of guilt”).

Indeed, in a recent study, some Black civilians

indicated that fear of the police is their “number one

fear in life.” J.R. Smith Lee & M. A. Robinson, That’s

My Number One Fear in Life. It’s The Police:

Examining Young Black Men’s Exposures to Trauma

and Loss Resulting from Police Violence and Police

Killings, J. OF BLACK PSYCH. 143, 156 (2019).

Moreover, in another recent study, approximately half

of the Black respondents preferred to be robbed or

burglarized than have unprovoked contact with

15

officers. Justin T. Pickett, Amanda Graham & Francis

T. Cullen, The American Racial Divide in Fear of the

Police, 60 CRIMINOLOGY 291, 291 (2002)

Unfortunately, studies show that these fears are

not overblown—police violence is a leading cause of

death for young Black men, killing them at a rate twice

as high as it kills young White men. Amina

Khan,

Getting

Killed

by

Police

is

a

Leading Cause of Death for Young Black

Men in America, L.A. TIMES (Aug. 19,

2019), https://www.latimes.com/science/story/2019-0815/police-shootings-are-a-leading-cause-of-death-forblack-men. The recent protests following the murder

of George Floyd demonstrate the public’s widespread

awareness of this phenomenon. And as images of

police violence are photographed and videotaped

regularly and shown to viewers at home, the

secondhand exposure has further fueled police

distrust. Edith Perez, Don’t Make a Run for It:

Rethinking Illinois v. Wardlow in Light of Police

Shootings and the Nature of Reasonable Suspicion, 31

U. FLA. J.L. & PUB. POL’Y 137, 148 (2020).

Aside from fear, there are countless other

motivations for flight. For example, Justice Stevens

noted in Wardlaw that “[a] pedestrian may break into

a run for a variety of reasons—to catch up with a friend

a block or two away, to seek shelter from an impending

storm, to arrive at a bus stop before the bus leaves, to

get home in time for dinner, to resume jogging after a

pause for rest, to avoid contact with a bore or a bully,

or simply to answer the call of nature—any of which

might coincide with the arrival of an officer in the

vicinity.” Wardlow, 528 U.S. at 128–29 (Stevens, J.,

concurring in part and dissenting in part).

16

Recent circuit court decisions also demonstrate the

non-dangerous reasons for flight. See, e.g., Ortiz, 811

F.3d at 851; Carroll v. Ellington, 800 F.3d 154, 162–63

(5th Cir. 2015). In Ortiz, a 16-year-old boy with Down

syndrome was considered fleeing because he ran to his

parents in an apartment complex. 811 F.3d at 850–51.

Although the boy surrendered when he met his family

by hugging his mother, id. at 851, the Fifth Circuit

rule would have authorized force because of the flight

alone.

Similarly, in Carroll, an unarmed man walked

quickly into the garage of a house after failing to stop

upon an officer’s command. 800 F.3d at 162–63. After

the officer pursued the man into the house, the officer

pulled out his Taser and immediately ordered the man

to get on the ground. Id. at 163. Under the new Fifth

Circuit rule, the officer would have been able to deploy

the Taser as soon as he encountered the man, rather

than the moment following the man’s non-compliance

with the officer’s order to get on the ground.

Finally, psychological and cognitive responses in a

person’s body can result in flight. Numerous studies

show that flight is an automatic response triggered by

past trauma; the body responds before the brain

triggers a cognitive response about what to do. See

Rebecca Jacoby et al., Individual Stress Response

Patterns: Preliminary Findings and Possible

Implications, 18 PLOS ONE 255889, 255890

(2021); see also Carmit Katz et al., Beyond Fight,

Flight, and Freeze: Towards a New Conceptualization

of Peritraumatic Responses to Child Sexual Abuse

Based on Retrospective Accounts of Adult Survivors,

112 CHILD ABUSE & NEGLECT 104904, 104905 (2021);

C. Katz & Z. Barnetz, The Behavior Patterns of Abused

17

Children as Described in their Testimonies, 38 CHILD

ABUSE & NEGLECT 1033, 1036 (2014).

Indeed, the notion that people have an “instinctive

attempt to eliminate or escape a threat” has existed

since 1925 and it is now the “predominant theoretical

framework

informing

stress

and

trauma

studies.” Carmit Katz & Racheli Nicolet, “If Only I

Could Have Stopped It”: Reflections of Adult Child

Sexual Abuse Survivors on Their Responses During the

Abuse, 37 J. OF INTERPERSONAL VIOLENCE NP2076,

NP2077 (2020) (indicating that W.B Cannon first

described the concept in 1925); Katz et al., supra, at

104905. The response occurs so quickly that “people

aren’t aware of [it] . . . even before the brain’s visual

centers have had a chance to fully process what is

happening. Harvard Health Publ’g, Harvard Med.

Sch., Understanding the Stress Response (July

6, 2020), https://www.health.harvard.edu/stayinghealthy/understanding-the-stress-response.

The Fifth’s Circuit’s rule fails to consider these

other non-dangerous motivations for flight and instead

makes flight a determinative factor. Not only are the

Fifth Circuit’s assumptions about prior flight

unsupported by Graham, but the ramifications of this

rule are also far-reaching, impacting individuals who

may flee for countless non-dangerous reasons.

The logical result of the Fifth Circuit’s per se rule

casting doubt on every surrender will be to raise the

stakes for any person who initially flees, no matter the

reason. Because their surrender will be subject to

question and support the use of intermediate force—

including the use of a taser, police dogs, or other

weapons—a fleeing suspect will have little reason to

stop even if they would otherwise want to surrender.

18

De-escalation by all involved should be encouraged in

this context, and attempts to reduce ongoing dangers

through surrender should never be rendered futile.

CONCLUSION

For all these reasons, and for those stated by the

petitioner, this Court should grant the petition for a

writ of certiorari.

Respectfully submitted.

LINDA T. COBERLY

Winston & Strawn LLP

35 W. Wacker Drive

Chicago, IL 60601

(312) 558-5600

DUSTIN RYNDERS

TRAVIS FIFE

Texas Civil Rights Project

2100 Travis, Suite 360

Houston, TX 77002

MOLLY PETCHENIK

Texas Civil Rights Project

1405 Montopolis Drive

Austin, TX 78741

BRANDON DUKE

Counsel of Record

Winston & Strawn LLP

800 Capitol Street,

Suite 2400

Houston, TX 77002

(713) 651-2600

BDuke@winston.com

BROOKE C. WILSON

EMILY WILKINSON

Winston & Strawn LLP

2121 N. Pearl Street

Dallas, TX 75201

(214) 453-6500

Counsel for Amicus Curiae

January 19, 2023