Amicus Curiae Brief — Sarah K. Molina, et al., Petitioners v. Daniel Book, et al.

No. 23-227

In The

Supreme Court of the United States

_____________

SARAH K. MOLINA AND CHRISTINA VOGEL,

Petitioners,

v.

DANIEL BOOK, ET AL.,

_____________

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

______________

BRIEF OF THE RUTHERFORD INSTITUTE

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

______________

John W. Whitehead

Counsel of Record

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

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

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 3

1. Observing and Recording Law Enforcement

Personnel in Public Is A First Amendment

Right Which Should Be Formally

Acknowledged by This Court and Preclude

Qualified Immunity for Officers Who Retaliate

Against Civilians for Recording Police

Activity………………………..…………………...3

2. The Emergence of Citizen-Journalists and the

Key Role They Play Demonstrates the

Necessity for the Enshrinement of a First

Amendment Right to Observe and Record Law

Enforcement Personnel in Public

Fora……………………….………………………10

CONCLUSION ......................................................... 16

ii

TABLE OF AUTHORITIES

Cases

Adkins v. Limtiaco,

537 F. App’x 721 (9th Cir. 2013) ............................ 5

American Civil Liberties Union of Illinois v.

Alvarez,

679 F.3d 583 (7th Cir. 2012) ........................... 6, 7, 8

Branzburg v. Hayes,

408 U.S. 665 (1972) ........................................... 3, 13

Chestnut v. Wallace,

947 F.3d 1085 (8th Cir. 2020) ........................... 8, 15

Citizens United v. Federal Election Commission,

558 U.S. 310 (2010) ............................................... 13

City of Houston v. Hill,

482 U.S. 451 (1987) ........................................... 6, 10

Crocker v. Beatty,

995 F.3d 1232 (11th Cir. 2021) ............................... 2

Elrod v. Burns,

427 U.S. 347 (1976) ................................................. 4

Federal Communications Commission v. CBS

Corp.,

567 U.S. 953 (2012) ............................................... 11

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) ...................... 4, 7, 8, 15

Garcia v. Montgomery County,

145 F. Supp. 3d 492 (D. Md. 2015) ....................... 15

iii

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) ............................... 5, 14

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022) ................... 4, 5, 7, 8

McCullen v. Coakley,

573 U.S. 464 (2014) ................................................. 3

Mills v. Alabama,

384 U.S. 214 (1966) ............................................. 5, 6

Molina v. City of St. Louis,

59 F.4th 334 (8th Cir. 2023) ............................. 2, 15

Molina v. City of St. Louis,

65 F.4th 994 (8th Cir. 2023) ................................... 2

Obsidian Finance Group, LLC v. Cox,

740 F.3d 1284 (9th Cir. 2014) ............................... 13

Smith v. City of Cumming,

212 F.3d 1332 (11th Cir. 2000) ......................... 6, 14

Snyder v. Phelps,

562 U.S. 443 (2011) ................................................. 4

Other Authorities

Charles E. Jones, The Political Repression of the

Black Panther Party 1966–1971: The Case of

the Oakland Bay Area,

18 J. Black Stud. 415 (1988) ................................... 4

J. David Goodman & Al Baker, New York Officer

Facing No Charges in Chokehold Case,

N.Y. Times, Dec. 4, 2014....................................... 11

iv

Jocelyn Simonson, Beyond Body Cameras:

Defending a Robust Right to Record the Police,

104 Geo. L.J. 1559 (2016) ..................................... 12

Josh Sanburn, The Witness,

Time, http://time.com/ramsey-orta-ericgarner-video/ ......................................................... 14

L. Song Richardson, Police Efficiency and the

Fourth Amendment,

87 Ind. L.J. 1143 (2012) ........................................ 11

Larry Buchanan et al., Black Lives Matter May

Be the Largest Movement in U.S. History,

N.Y. Times (July 3, 2020) ............................... 12, 13

Seth F. Kreimer, Pervasive Image Capture and

the First Amendment: Memory, Discourse,

and the Right to Record,

159 U. Penn. L. Rev. 335 (2011) ..........3, 8, 9, 10, 15

Tony Norman, Video for Once Allows Police No

Excuses,

Pittsburgh Post-Gazette, Apr. 10, 2015 ............... 12

1

INTEREST OF AMICUS CURIAE1

The Rutherford Institute is a nonprofit civil

liberties

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute

provides legal assistance at no charge to individuals

whose constitutional rights have been threatened or

violated and educates the public about constitutional

and human rights issues affecting their freedoms.

The Rutherford Institute works tirelessly to resist

tyranny and threats to freedom by seeking to ensure

that the government abides by the rule of law and is

held accountable when it infringes on the rights

guaranteed to persons by the Constitution and the

laws of the United States.

SUMMARY OF THE ARGUMENT

This case raises significant constitutional

concerns, especially as to what rights individuals

have when observing and recording law enforcement

personnel in public places. Focusing on the third

question presented in the Petition, Amicus Curiae

agrees with Petitioners and the lower court’s

dissenting opinions that such a right was clearly

1 Pursuant to Rule 37.6, Amicus Curiae affirms that

no counsel for a party authored this brief in whole or

in part and no person other than Amicus Curiae, its

members, and its counsel made a monetary

contribution intended to fund its preparation or

submission. Pursuant to Rule 37.2, counsel of record

for all parties received notice of Amicus Curiae’s

intention to file this brief at least 10 days prior to

the due date.

2

established at the time of the conduct at issue in this

case. Molina v. City of St. Louis, 59 F.4th 334,

344-47 (8th Cir. 2023) (Benton, J., dissenting in part

and concurring in part) (noting that two prior Eighth

Circuit cases “found a clearly established First

Amendment right to observe police officers that

existed before the events precipitating this case”);

Molina v. City of St. Louis, 65 F.4th 994 (8th Cir.

2023) (Colloton, J., dissenting from denial of

rehearing en banc) (“this court already concluded

that police officers were on notice of a clearly

established right under the First Amendment to

observe police conduct…before the incident in this

case”).

Amicus Curiae writes separately to request

that the Court take this opportunity to rule

definitively that observing and recording law

enforcement personnel in public places is protected

by the First Amendment. Not only is the right to

observe and record law enforcement activities and

personnel in public places an established First

Amendment right, but the right is essential to

protect the citizen-press, which plays an everincreasingly important role in the dissemination of

information. Indeed, “[t]he right to record police

activity is important not only as a form of

expression, but also as a practical check on police

power. Recordings of police misconduct have played

a vital role in the national conversation about

criminal justice for decades.” Crocker v. Beatty, 995

F.3d 1232, 1261 (11th Cir. 2021) (Martin, J.,

concurring in part and dissenting in part).

Because observing and recording law

enforcement personnel might be unpopular with the

3

subjects being recorded, civilians, like the

Petitioners in this case, run the risk of retaliation for

engaging in such activities. Absent a formal holding

from this Court that there is a robust First

Amendment right to observe and record law

enforcement personnel in public places, people run

the risk of self-censoring, law enforcement personnel

run the risk of misunderstanding a person’s

constitutional rights, and lower courts run the risk

of misapplying qualified immunity and undermining

the First Amendment’s protections.

ARGUMENT

1.

Observing

and

Recording

Law

Enforcement Personnel in Public Is A

First Amendment Right Which Should Be

Formally Acknowledged by This Court

and Preclude Qualified Immunity for

Officers Who Retaliate Against Civilians

for Recording Police Activity

In Branzburg v. Hayes, this Court noted that

“without some protection for seeking out the news,

freedom of the press could be eviscerated.” 408 U.S.

665, 681 (1972). Professor Kreimer explains that

“[i]mage capture can document activities that are

proper subjects of public deliberation but which the

protagonists would prefer to keep hidden and

deniable.”

Seth F. Kreimer, Pervasive Image

Capture and the First Amendment: Memory,

Discourse, and the Right to Record, 159 U. Penn. L.

Rev. 335, 345 (2011). Police regularly operate on

public streets and sidewalks, which “are areas that

have historically been open to the public for speech

activities.” McCullen v. Coakley, 573 U.S. 464, 476

4

(2014).

Moreover, the conduct of police, as

government officials, is a matter of public concern;

and speech regarding matters of public concern is, as

this Court has repeatedly reiterated, including in

Snyder v. Phelps, 562 U.S. 443, 451-52 (2011), at the

heart of the First Amendment. Such a “loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976).

The recording of civilian interactions with law

enforcement is hardly a new phenomenon. See

Charles E. Jones, The Political Repression of the

Black Panther Party 1966–1971: The Case of the

Oakland Bay Area, 18 J. Black Stud. 415, 417 (1988)

(reporting on the “Panther Police Patrol,” which

deployed tape recorders and cameras to document

police stops). See also Fields v. City of Philadelphia,

862 F.3d 353, 355 (3d Cir. 2017) (“In 1991 George

Holliday recorded video of the Los Angeles Police

Department officers beating Rodney King and

submitted it to the local news. Filming police on the

job was rare then but common now. With advances

in technology and the widespread ownership of

smartphones, ‘civilian recording of police officers is

ubiquitous.’” (citation omitted)).

Accordingly, it is no surprise that several

federal courts of appeals have found a constitutional

right to record law enforcement personnel when they

conduct operations in public. See, e.g., Irizarry v.

Yehia, 38 F.4th 1282, 1290-92, 1294 (10th Cir. 2022)

(listing and summarizing cases finding a First

Amendment right to film the police in public from

the First, Third, Fifth, Seventh, Ninth, and Eleventh

Circuits, and holding the right to be clearly

5

established “beyond debate” in its own circuit, even

though neither this Court nor the Tenth Circuit had

formally recognized the right).

The Ninth Circuit, for example, has held that

an individual’s “First Amendment rights were

clearly established at the time of his arrest” when

photographing police actions. Adkins v. Limtiaco,

537 F. App’x 721, 722 (9th Cir. 2013). The First

Circuit framed the question directly by asking “is

there a constitutionally protected right to videotape

police carrying out their duties in public?” Glik v.

Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). In

answering that question, the court held that

[b]asic First Amendment principles,

along with case law from this and other

circuits,

answer

that

question

unambiguously in the affirmative.

....

. . . Gathering information about

government officials in a form that can

readily be disseminated to others serves

a cardinal First Amendment interest in

protecting and promoting “the free

discussion of governmental affairs.”

Id. (quoting Mills v. Alabama, 384 U.S. 214, 216

(1966)). In so ruling, the First Circuit applied the

following logic: if police officers must accept “a

significant amount of verbal criticism and challenge

directed at” them, then they must be expected to

exercise similar restraint “when they are merely the

subject of videotaping that memorializes, without

6

impairing, their work in public spaces.” Id. at 84

(quoting in part City of Houston v. Hill, 482 U.S.

451, 461 (1987)). Likewise, the Eleventh Circuit

held that civilians have a First Amendment right to

record the police because “the First Amendment

protects the right to gather information about what

public officials do on public property.” Smith v. City

of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).

Perhaps more tellingly, in upholding the right

to record law enforcement personnel, the Seventh

Circuit described as “an extreme position” and “an

extraordinary argument” the contention of the

State’s Attorney “that openly recording what police

officers say while performing their duties in

traditional public fora — streets, sidewalks, plazas,

and parks — is wholly unprotected by the First

Amendment.” Am. Civil Liberties Union of Ill. v.

Alvarez, 679 F.3d 583, 594 (7th Cir. 2012). The

Seventh Circuit went on to hold that

[a]udio and audiovisual recording

are media of expression commonly used

for the preservation and dissemination

of information and ideas and thus are

“included within the free speech and

free press guaranty of the First and

Fourteenth Amendments.” Laws that

restrict the use of expressive media

have obvious effects on speech and

press rights; the Supreme Court has

“voiced particular concern with laws

that foreclose an entire medium of

expression.”

7

The act of making an audio or

audiovisual recording is necessarily

included within the First Amendment’s

guarantee of speech and press rights as

a corollary of the right to disseminate

the resulting recording. The right to

publish or broadcast an audio or

audiovisual

recording

would

be

insecure, or largely ineffective, if the

antecedent act of making the recording

is wholly unprotected, as the State’s

Attorney insists. By way of a simple

analogy, banning photography or notetaking at a public event would raise

serious First Amendment concerns; a

law of that sort would obviously affect

the right to publish the resulting

photograph or disseminate a report

derived from the notes. The same is

true of a ban on audio and audiovisual

recording.

Id. at 595-96 (internal citations omitted).

More recently, the Third Circuit upheld the

right of individuals to photograph or videotape law

enforcement personnel in public. See Fields, 862

F.3d at 360 (“In sum, under the First Amendment’s

right of access to information the public has the

commensurate right to record—photograph, film, or

audio record—police officers conducting official

police activity in public areas.”). Likewise, the Tenth

Circuit found that filming police was clearly

established First Amendment activity, and therefore

denied qualified immunity to a police officer who

8

obstructed a civilian’s recording. Irizarry, 38 F.4th

at 1298.

These cases show that the First Amendment

right to observe and record law enforcement

personnel in public is now well-established. See

Fields, 862 F.3d at 355 (“Every Circuit Court of

Appeals to address this issue . . . has held that there

is a First Amendment right to record police activity

in public. Today we join this growing consensus.”

(citations omitted)); Irizarry, 38 F.4th at 1290-92,

1294.

As the Seventh, Eighth, and Tenth Circuits

have explained, the antecedent acts to recording, like

observation, must necessarily be protected as well.

Alvarez, 679 F.3d at 595-96 (7th Cir. 2012), supra at

6-7; Chestnut v. Wallace, 947 F.3d 1085, 1091 (8th

Cir. 2020) (“if the constitution protects one who

records police activity, then surely it protects one

who merely observes it”); Irizarry, 38 F.4th at 1290

(10th Cir. 2022) (“If the creation of speech did not

warrant protection under the First Amendment, the

government could bypass the Constitution by simply

proceeding upstream and damming the source of

speech.”).

“Filming the police . . . acts as a watchdog of

government activity and furthers debate on matters

of public concern.”

Irizarry, 38 F.4th at 1289

(internal quotation marks and citation omitted).

Thus, it is likely that opposition to observation and

recording of police activities stems from the fact that

“many would prefer to be in a position to shape

perceptions of their actions without competing

digital records. Police officers often view private

9

digital image capture as a challenge to their

authority.” Kreimer, Pervasive Image Capture and

the First Amendment, 159 U. Penn. L. Rev. at 357.

This, rather than purported safety concerns

associated with being recorded, has resulted in a

“rich set of cases in which police have sought to

prosecute critics or potential critics who capture

their images. In these cases, police officers and

other officials have enlisted both existing statutes

and creative prosecutorial discretion in the struggle

to constrain inconvenient image capture.” Id. Until

recently, if not continuing, police officers have

“invoke[d] the wiretap statute against those who

antagonize them by recording them.” Id. at 359 n.79

(collecting cases from Pennsylvania).

Indeed,

[t]he typical police officer, plaintiff, or

complainant in the image-capture cases

canvassed above is not concerned with

avoiding observation or preserving

seclusion simplic[i]ter.

She is

interested, rather, in assuring that

evidence of dubious or potentially

embarrassing actions is not credibly

conveyed by the observer to a wider

audience by transmission of the

captured image. There are few cases on

record of police officers arresting

tourists who capture videos of polite

official responses to inquiries for

directions.

Prohibitions on image

capture are deployed to suppress

inconvenient truths.

10

Id. at 383. Such conduct cannot be countenanced in

a society in which “[t]he freedom of individuals

verbally to oppose or challenge police action without

thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation

from a police state.” Hill, 482 U.S. at 462-63. At a

minimum, the First Amendment “demands some

sacrifice of [police] efficiency . . . to the forces of

private opposition.” Id. at 463 n.12 (ellipsis in

original).

By granting the Petition and affirming that

there is a right to observe and record law

enforcement

personnel,

this

Court

would

substantially remove the qualified immunity

obstacles for individuals, like Petitioners, who

experience retaliation for undertaking such

protected activities and would thereby hopefully

reduce the occurrence of such retaliation.

2.

The Emergence of Citizen-Journalists

and

the

Key

Role

They

Play

Demonstrates the Necessity for the

Enshrinement of a First Amendment

Right to Observe and Record Law

Enforcement Personnel in Public Fora

Today, civilians armed with smartphones are

increasingly performing the watchdog functions

associated with the traditional news press. This is

surpassingly important because “[s]erendipitous

amateur image capture can fill some of the lacunae

left by the decimation of salaried news staffs.”

Kreimer, Pervasive Image Capture and the First

Amendment, 159 U. Penn. L. Rev. at 350. As

demonstrated below, such image-capture and

11

recordings are more often responsible for bringing to

light events which otherwise would go unnoticed or

unreported. See Fed. Commc’ns Comm’n v. CBS

Corp., 567 U.S. 953, 953 (2012) (Roberts, C.J.,

concurring) (“As every schoolchild knows, a picture is

worth a thousand words.”). As such, protecting the

right to observe and record interactions between law

enforcement personnel and individuals must be

enshrined.

This is particularly important because, as

Professor Richardson observes, “courts repeatedly

defer to the judgments of all officers, with no inquiry

into the particular officer’s training, experience, and

skill.” L. Song Richardson, Police Efficiency and the

Fourth Amendment, 87 Ind. L.J. 1143, 1155 (2012).

Accordingly, cameras have become an effective tool

for ordinary civilians to protect against and expose

police abuses. Unfortunately, it has taken several

recent events to demonstrate the importance of the

citizen-journalist – whether or not he or she

intended to be one – in shedding light on police

killings of minorities.

For example, in December 2014, a black man,

Eric Garner, was killed by a chokehold from a police

officer. While the grand jury did not indict the police

officer, the killing, which was recorded by a private

citizen, Ramsey Orta, served to draw mass attention

to the interactions between law enforcement

personnel and minorities. See J. David Goodman &

Al Baker, New York Officer Facing No Charges in

Chokehold Case, N.Y. Times, Dec. 4, 2014, at A1.

Similarly, in connection with the Walter Scott

killing in North Charleston, South Carolina on

12

April 4, 2015, the police officer implicated had stated

that he feared for his life after Mr. Scott had

disarmed him.

The video recording by Feidin

Santana, an individual who happened to be walking

by at the time, shows an unarmed Mr. Scott running

away before being shot eight times. The footage also

shows the officer placing an object near the body of

Mr. Scott. As one report stated, Mr. Santana’s video

“opened the eyes of millions of Americans who

previously doubted that a police officer would be

capable of shooting anyone who didn’t truly deserve

it. It takes away their certainty (until the next

unrecorded shooting) that it is always the victim’s

fault.” Tony Norman, Video for Once Allows Police

No Excuses, Pittsburgh Post-Gazette, Apr. 10, 2015,

at A-2.

As the Court is no doubt aware, these are

sadly not isolated instances. Accordingly, “because

the police have traditionally been the ones with

control over official narratives about police conduct

in court and in the news, the ability to counter those

narratives with stories backed up by video has

transformed the nature of both public opinion and

court testimony.” Jocelyn Simonson, Beyond Body

Cameras: Defending a Robust Right to Record the

Police, 104 Geo. L.J. 1559, 1571 (2016).

And, of course, the civilian recording of George

Floyd’s brutal arrest by Minneapolis police officers

graphically depicted the needless violence inflicted

by law enforcement, sparking nationwide protests

and what has been described as the largest

movement in the country’s history.

See Larry

Buchanan et al., Black Lives Matter May Be the

Largest

Movement

in

U.S.

History,

13

N.Y. Times (July 3,2020),

https://www.nytimes.com/interactive/2020/07/03/us/g

eorge-floyd-protests-crowd-size.html.

Absent a holding that there is an unequivocal

First Amendment right to observe and record law

enforcement, many citizen-journalists’ activities will

be subject to chilling effects. Failing to hold such a

right exists would rely on an outdated notion of what

constitutes the press and, perhaps more concerning,

who is entitled to First Amendment protections.

Over forty years ago, this Court recognized that

“liberty of the press is the right of the lonely

pamphleteer who uses carbon paper or a

mimeograph just as much as of the large

metropolitan publisher who utilizes the latest

photocomposition methods.” Branzburg, 408 U.S. at

704.

More recently, the Ninth Circuit recognized

that “[t]he protections of the First Amendment do

not turn on whether the [party] was a trained

journalist, formally affiliated with traditional news

entities, engaged in conflict-of-interest disclosure,

went beyond just assembling others’ writings, or

tried to get both sides of a story.” Obsidian Fin.

Grp., LLC v. Cox, 740 F.3d 1284, 1291 (9th Cir.

2014). It pointed out that “a First Amendment

distinction between the institutional press and other

speakers is unworkable: ‘With the advent of the

Internet and the decline of print and broadcast

media . . . the line between the media and others

who wish to comment on political and social issues

becomes far more blurred.’”

Id. (alteration in

original) (quoting Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 352 (2010)). As another court

14

wrote in recognizing the constitutional rights of

civilians to record police in public, developments in

technology “make clear why the news-gathering

protections of the First Amendment cannot turn on

professional credentials or status.” Glik, 655 F.3d at

84.

Absent a holding from this Court, individuals

may be dissuaded from taking actions to capture

future instances of police interaction with civilians.

Such concerns are by no means hypothetical.

Mr. Santana moved out of the North Charleston area

and stated that “[o]ne of my concerns before giving

the video to the family was retaliation from the

police department.” Josh Sanburn, The Witness,

Time, http://time.com/ramsey-orta-eric-garner-video/.

The implications of a lack of clarity or consistency on

whether observing and recording law enforcement

personnel is a protected right will cause people to

self-censor the subjects whom they would otherwise

observe and record when faced with the possibility of

retaliation.

Moreover, clarifying the right to observe and

record law enforcement will have a minimal burden

on law enforcement personnel – perhaps only a

tangential one no different from the daily

inconveniences they are expected to tolerate and

under which some of their colleagues in areas that

have recognized the right already operate.

Additionally, the “threat” of being recorded, along

with the ubiquity of video-recording devices, could be

expected to make law enforcement officials think

twice before using disproportionate force and,

perhaps, reduce the number of injuries and deaths

that could and should have been avoided. See

15

Garcia v. Montgomery Cnty., 145 F. Supp. 3d 492,

507 (D. Md. 2015) (“[R]ecording police activity

enables citizens to ‘keep them honest,’ an

undertaking protected by the First Amendment.”).

Indeed, “[c]aptured images need not be conveyed to

others to have a salutary effect. Just as public

surveillance cameras are said to reduce crime, the

prospect of private image capture provides a

deterrent to official actions that would evoke liability

or condemnation.”

Kreimer, Pervasive Image

Capture and the First Amendment, 159 U. Penn. L.

Rev. at 347.

In sum, as the Third Circuit noted:

We ask much of our police. They can be

our shelter from the storm. Yet officers

are public officials carrying out public

functions, and the First Amendment

requires them to bear bystanders

recording their actions. This is vital to

promote the access that fosters free

discussion of governmental actions,

especially when that discussion benefits

not only citizens but the officers

themselves.

Fields, 862 F.3d at 362.

Although the Eighth Circuit had previously

recognized, under the First Amendment, “a ‘clearly

established right to watch police-citizen interactions

at a distance and without interfering’” Molina, 59

F.4th at 339 (quoting Chestnut, 947 F.3d at 1090),

the court has now significantly weakened that right

16

by granting police qualified immunity when they

retaliate against people, like Petitioners here.

Thus, this Court should grant the Petition and

make clear that the public has the right to observe

and record law enforcement personnel and activities

in public fora.

CONCLUSION

For the foregoing reasons and those described

by the Petitioners, Amicus Curiae respectfully urges

this Court to grant the Petition for Certiorari.

Respectfully submitted,

John W. Whitehead

Counsel of Record

William E. Winters

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, Virginia 22911

(434) 978-3888

legal@rutherford.org

Counsel for Amicus Curiae