Petition for Writ of Certiorari — Bowe Marvin, Petitioner v. David Holcomb, et al.

NO. 23-_____

In the

Supreme Court of the United States

BOWE MARVIN,

Petitioner,

v.

DAVID HOLCOLMB, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Robert E. Barnes, Esq.

Counsel of Record

BARNES LAW

700 South Flower Street, Suite 1000

Los Angeles, CA 90017

(310) 510-6211

robertbarnes@barneslawllp.com

October 10, 2023

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Whether there is a “Grab-Him-and-ThrowHim-Out-of-the-House” exception to requiring probable

cause of a felony for in-home arrests without a

warrant?

2. Whether excessive force is allowed regardless

of whether there was a probable cause to arrest in the

first place?

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Plaintiff-Appellants below:

●

Bowe Marvin

Respondents and Defendants-Appellees below:

●

David Holcomb

●

Christopher Lawson-Rulli, Corporal

●

Matthew Corban, Patrolman

●

St. Joseph County Sheriff’s Department

iii

RULE 29.6 STATEMENT

Petitioner Bowe Marvin is not a nongovernment

corporation. Consequently, said Petitioner does not

have a parent corporation or shares held by a publicly

traded company.

iv

LIST OF PROCEEDINGS

U.S. Court of Appeals, Seventh Circuit

No. 22-2757

Bowe Marvin, Plaintiff-Appellant, v.

David Holcomb, et al., Defendants-Appellees.

Final Opinion: July 11, 2023

_________________

U.S. District Court, Northern District of Indiana

No. Case No. 3:20-CV-553-MGG

Bowe Marvin, Plaintiffs, v.

David Holcomb, et al., Defendants.

Partial Summary Judgment Order: July 25, 2022

Verdict: September 14, 2022

v

TABLE OF CONTENTS

Page

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

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

RULE 29.6 STATEMENT ......................................... iii

LIST OF PROCEEDINGS ......................................... iv

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 1

STATEMENT OF FACTS .......................................... 2

A. Police Pull Petitioner Out of His House .......... 2

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

A. Proceedings in the District Court Below ......... 4

B. Proceedings in the Court of Appeals Below .... 6

REASONS FOR GRANTING THE PETITION ......... 7

I.

Whether There Is a “Grab-Him-andThrow-Him-Out-of-the-House” Exception

to Requiring Probable Cause of a Felony for

In-Home Arrests Without a Warrant? ............ 7

II. Whether Excessive Force Is Allowed

Regardless of Whether There Was a Probable

Cause to Arrest in the First Place? ............... 11

III. This Case is of Great Public Importance. ..... 14

CONCLUSION.......................................................... 15

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Seventh Circuit (July 11, 2023) ......................... 1a

Verdict, U.S. District Court for the Northern

District of Indiana (September 14, 2022) ........ 13a

Opinion and Order, U.S. District Court for the

Northern District of Indiana (July 25, 2022) .. 14a

OTHER DOCUMENTS

Final Jury Instructions

(September 14, 2022)........................................ 48a

Amended Complaint

(March 12, 2021) ............................................... 63a

vii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Brigham City, Utah v. Stuart,

547 U.S. 398, 126 S.Ct. 1943,

164 L.Ed.2d 650 (2006) ......................................... 9

Brosseau v. Haugen,

543 U.S. 194, 125 S.Ct. 596,

160 L.Ed.2d 583 (2004) ..................................... 12

Byrd v. United States,

138 S.Ct. 1518 (2018) .......................................... 8

Florida v. Jardines,

569 U.S. 1 (2013) ................................................. 8

Graham v. Connor,

490 U.S. 386, 109 S.Ct. 1865,

104 L.Ed.2d 443 (1989) ..................................... 12

Groh v. Ramirez,

540 U.S. 551, 124 S.Ct. 1284,

157 L.Ed.2d 1068 (2004) ....................................... 9

Kyllo v. United States,

533 U.S. 27 (2001) ................................................ 8

Lange v. California,

141 S.Ct. 2011 (2021) ........................................... 8

McClish v. Nugent,

483 F.3d 1231 (11th Cir.2007) .......................... 10

Payton v. New York,

445 U.S. 573, 100 S.Ct. 1371,

63 L.Ed.2d 639 (1980) ................................... 9, 10

Souter v. Irby,

593 F. Supp. 3d 270 (E.D. Va. 2022)................. 13

viii

TABLE OF AUTHORITIES – Continued

Page

Stephenson v. Doe,

332 F.3d 68 (2d Cir. 2003) ................................. 13

Tate v. W. Norriton Twp.,

545 F.Supp.2d 480 (E.D. Pa. 2008) ................... 13

Thomas v. Roach,

165 F.3d 137 (2d Cir. 1999) ............................... 12

United States v. Brown,

871 F.3d 532 (7th Cir. 2017) ............................. 14

United States v. McCraw,

920 F.2d 224 (4th Cir. 1990) ............................. 10

United States v. U.S. Dist. Ct. for E.D. Mich.,

S. Div., 407 U.S. 297, 92 S.Ct. 2125,

32 L.Ed.2d 752 (1972) ......................................... 9

United States v. Watson,

423 U.S. 411, 96 S.Ct. 820,

46 L.Ed.2d 598 (1976) ......................................... 9

Watson v. City of Burton,

764 F.App’x 539 (6th Cir. 2019) ........................ 10

Wilder v. Vill. of Amityville,

288 F.Supp.2d 341 (E.D.N.Y. 2003), aff’d,

111 F.App’x 635 (2d Cir. 2004) ......................... 13

Wilson v. Layne,

526 U.S. 603, 119 S.Ct. 1692,

143 L.Ed.2d 818 (1999) ....................................... 12

ix

TABLE OF AUTHORITIES – Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ............ 1, 4, 8, 9, 10, 11, 13, 14

STATUTES

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

42 U.S.C. § 1983 ............................................ 2, 4, 5, 10

JUDICIAL RULES

Fed. R. Civ. P. 56 ........................................................ 5

Sup. Ct. R. 10(a) ........................................................ 11

Sup. Ct. R. 29.6 .......................................................... iii

1

OPINIONS BELOW

The Opinion of the U.S. Court of Appeals for the

Seventh Circuit is found at the Appendix that is filed

with this Petition (hereinafter “App.”) 1a-12a. This

opinion was not designated for publication.

JURISDICTION

The Court of Appeals entered its Opinion and

Judgment on July 11, 2023. App.1a-12a. It issued the

Mandate on August 2, 2023. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., amend. IV

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

2

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.

STATEMENT OF FACTS

A.

Police Pull Petitioner Out of His House

In the instant case, on April 3, 2015, Bowe Marvin

was 21 years old and living with his father, Greg. That

day, Marvin’s mother, Michelle, drove to Greg’s house

to tell Marvin that he needed to move out and come

live with her. This led to a heated argument. Marvin

told her he would not leave his father’s house and

became increasingly agitated. In his anger, he broke

her sun-glasses, flipped an ashtray, and threw a chair

across the room, hitting her in the face and cutting her

3

lip open. Michelle then left the house and called the

police from her truck in the driveway. She asked the

police to perform a welfare check on Marvin, as she

was worried he might be suicidal. She also told the

dispatcher that Marvin regularly carried a box cutter.

When the police arrived, they found Michelle in

the car in the driveway. The group included three

Sheriff’s Deputies: David Holcomb, Matthew Corban,

and Christopher Lawson-Rulli. They saw Michelle’s

split lip and repeatedly asked what had happened to

her. She insisted she was fine and asked them to go

check on Marvin. The deputies explained that they

would not go inside until she told them what had

happened to her lip. At that point, Michelle told them

that her son had thrown a chair at her. One deputy

allegedly said, “I’m taking him down,” and all three

approached the house.

Deputy Corban knocked on the door and Greg

answered. Marvin then came to the door and stood in

the doorway. The deputies asked Marvin several

times to leave the house, but they did not tell him why

they were there, that they had spoken to his mother,

or whether he was under arrest. They also repeatedly

asked if he had any weapons, and he responded,

“What? What do you mean?” Seemingly amidst this

discussion of whether Marvin had a weapon, Greg

came up behind him and removed a knife from

Marvin’s back pocket.

Lawson-Rulli and Holcomb grabbed Marvin’s

hands and pulled him from the doorway of the house.

The parties dispute whether Marvin was inside or outside the doorway when this happened—that is, they

dispute whether the deputies had to enter the house

to pull him out. Marvin fell to the ground outside and

4

attempted to stand up. Corban wrapped his arms

around Marvin’s legs, bringing him back to the ground.

Holcomb tased Marvin once; and when that did not

seem to have an effect, he tased him a second time.

Simultaneously, the deputies hit him with open hands

and closed fists. When Petitioner stopped moving,

Corban placed Petitioner in handcuffs, after which he

“was compliant.” In the district court, Marvin admitted

that “[a]t the time the deputies restrained him, [he]

was uncooperative but he was not threatening or

violent.” Petitioner suffered a concussion and a broken

toe from the encounter.

STATEMENT OF THE CASE

A.

Proceedings in the District Court Below

On March 12, 2021, Petitioner filed an Amended

Complaint (“the Amended Complaint”). App.63a.

The Amended Complaint alleged three claims against

Respondents St. Joseph County Sheriff Department

(the “Department”), David Holcomb (“Holcomb”),

Corporal. Christopher Lawson-Rulli (“Lawson-Rulli”),

and Patrolman Matthew Corban (“Corban”) (collectively “Respondents”). Those claims were as follows: (i)

unlawful entry by Respondent Officers in violation of

the 4th Amendment to the U.S. Constitution under 42

U.S.C. § 1983; (ii) excessive force by Respondent Officers

in violation of the 4th Amendment under 42 U.S.C.

§ 1983; and (iii) state law claims for trespass, battery,

and excessive force under Indiana law. Petitioner’s

Amended Complaint sought compensatory and punitive

damages in the sum of $3.1 million.

5

On November 12, 2021, Defendants collectively

filed a Motion for Summary Judgment pursuant to

Federal Rules of Civil Procedure, Rule 56 (the “Motion

for Summary Judgment”), contending that (1) not all

the officers were personally involved in each of the

events that occurred, (2) the Appellees are entitled to

qualified immunity because the undisputed material

facts show that the Appellees did not violate Appellant’s

constitutional rights, and (3) even if the facts taken in

the light most favorable to Appellant do make out a

constitutional violation, the Appellee Officers are still

entitled to qualified immunity because the constitutional rights at issue were not clearly established.

On July 25, 2022, the District Court entered the

Order Granting in Part Appellees’ Motion and made

several findings. First, pertaining to the Department,

the District Court denied the Department’s Motion on

the grounds that it is not a suitable entity or the

proper entity for this action. The District Court analyzed Appellant’s unlawful entry and excessive force

claims pursuant to § 1983 against the Officers first by

contemplating the “personal involvement” of each officer.

In their Motion, Appellees sought summary judgment

as to Appellant’s excessive force claim against Appellees

Lawson-Rulli, Holcomb, and Corban. Accordingly, the

District Court granted summary judgment in favor of

Defendant for Appellant’s unlawful entry claim against

Appellee Corban, as well as a summary judgment on

Appellant’s excessive force claim as it pertains to

Defendant Lawson-Rulli, on the grounds that those

Defendants did not have sufficient “personal involvement” to subject Defendants to § 1983 liability.

The District Court further granted Appellees’

Motion for Appellant’s excessive force claim against

6

Appellees Lawson-Rulli, Holcomb, and Corban. In its

analysis of whether Appellees were entitled to the

defense of qualified immunity, which Appellees raised,

the District Court found that there was no violation of

a statutory or constitutional right because Appellees’

use of force was reasonable and that there is no genuine

dispute of material fact pertaining to this finding.

Furthermore, Appellant’s remaining claim, his

cause of action for unlawful entry against Appellees

Holcomb and Lawson-Rulli, survived Appellees’ motion

for summary judgment and was litigated at trial. The

jury ultimately found in favor of Appellees on all

counts.

On October 3, 2022, Petitioner filed a timely Notice

of Appeal, seeking review by the Seventh Circuit

Court of Appeals of the District Court’s Order Granting

in Part Summary Judgment dismissing Petitioner’s

unlawful entry claim against Respondent Corban,

excessive force claim against Respondent Officers,

and Petitioner’s state law claims, and the final jury

verdict entered in this action on September 14, 2022.

B.

Proceedings in the Court of Appeals Below

On October 4, 2022, the Court of Appeals docketed

Petitioners’ appeal. App.2a. On May 24, 2023, the

cause was argued before a panel consisting of Judges

Michael Y. Scudder, Amy J. St. Eve, and Thomas L.

Kirsch II. App.1a-12a. On July 11, 2023, the Court of

Appeals entered the Opinion, affirming the District

Court’s rulings. App.1a-12a. The Court of Appeals

issued the Mandate on August 2, 2023.

7

REASONS FOR GRANTING THE PETITION

Two reasons to grant this petition: First, conflicting

law in other Circuits warrants this Court clarify an

individual’s privacy rights in the doorway of their

home and prevent an exception that an officer can pull

an individual from their threshold and execute an

arrest without a warrant and without probable cause.

And Second, to establish the relevance of an unlawful

initial seizure in this Court’s excessive force analysis.

I.

Whether There Is a “Grab-Him-andThrow-Him-Out-of-the-House” Exception

to Requiring Probable Cause of a Felony

for In-Home Arrests Without a Warrant?

The Court of Appeals’ aforementioned analysis of

Petitioner’s challenge to the final jury instructions

and affirmation of the District Court’s decision regarding

the instruction in question conflicts with decisions by

other Circuit Courts because it misstates the law

established in other Circuits.

Petitioner argued at the District Court and the

Court of Appeals that the language in Jury Instruction

No. 8—“the point where the home begins must be

identified by inquiry into reasonable expectations of

privacy”—so misled the jury because it misstated or

insufficiently stated the law as to Petitioner’s reasonable

expectations of privacy in the doorway of his home.

The Court of Appeals held that whether Petitioner

had relinquished his right to privacy – meaning a

warrant would ordinarily be required for entry – was

irrelevant to the analysis of whether Jury Instruction

8

No. 8 insufficiently stated the law because the District

Court found there were exigent circumstances existed

that justified warrantless entry. However, the Court

of Appeals fails to address the District Court’s diminishment of one’s reasonable expectation of privacy in

their own home. This holding directly conflicts with

several other circuits. Despite this, the Court of Appeals

acknowledged the non-ambiguity of the expectation of

privacy that exists at the threshold, stating:

On the other hand, “more recent Fourth

Amendment cases have clarified that the test

most often associated with legitimate expectations of privacy . . . supplements, rather than

displaces, the traditional property-based

understanding of the Fourth Amendment.”

Byrd v. United States, 138 S.Ct. 1518,

1526 (2018) (cleaned up); see also Lange v.

California, 141 S.Ct. 2011, 2018 (2021) (the

Fourth Amendment “draws a firm line at the

entrance to the house”) (cleaned up); Florida

v. Jardines, 569 U.S. 1, 6 (2013) (“This right

would be of little practical value if the State’s

agents could stand in a home’s porch or side

garden and trawl for evidence with impunity;

the right to retreat would be significantly

diminished if the police could enter a man’s

property to observe his repose from just

outside the front window.”); Kyllo v. United

States, 533 U.S. 27, 34 (2001) (expressing concerns with Physical intrusion[s] into . . . constitutionally protected area[s]”).

The Court of Appeals further admitted that they

were “skeptical” that the concept of “the threshold of

the home as a malleable concept remains good law.”

9

The Court of Appeals, however, refused to address

this essential question.

Under the Fourth Amendment, the people are to

be “secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures,

. . . and no Warrants shall issue, but upon probable

cause . . . .” United States v. Watson, 423 U.S. 411,

415, 96 S.Ct. 820, 823-24, 46 L.Ed.2d 598 (1976). In

essence, officers of the law cannot engage in an

unreasonable search and seizure in violation of the

privacies afforded by the Fourth Amendment without

probable cause. With respect to the Fourth Amendment,

the Supreme Court has opined that the “physical

entry of the home is the chief evil against which the

wording of [that provision] is directed.” United States

v. U.S. Dist. Ct. for E.D. Mich., S. Div., 407 U.S. 297,

313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972).

“It is a ‘basic principle of Fourth Amendment law

that searches and seizures inside a home without a

warrant are presumptively unreasonable.’” Brigham

City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943,

164 L.Ed.2d 650 (2006) (quoting Groh v. Ramirez, 540

U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)

(internal quotation marks omitted)). This Court, in

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63

L.Ed.2d 639 (1980), has emphasized the scope of an

individual’s privacy rights. In Payton, police officers had

entered the defendants’ home to make routine felony

arrests without a warrant. The Supreme Court ruled

their entry unconstitutional and explained that the

“Fourth Amendment protects the individual’s privacy

in a variety of settings. In none is the zone of privacy

more clearly defined that when bounded by the unambiguous physical dimensions of an individual’s home. . . .

10

In terms that apply equally to seizures of property and

to seizures of persons, the Fourth Amendment has

drawn a firm line at the entrance to the house.” Id. at

589-90.

In the Sixth Circuit, the court emphasized an

arrestee’s expectation of privacy at his threshold. In

Watson v. City of Burton, 764 F.App’x 539 (6th Cir.

2019), the court found that “Arrestee standing at the

threshold of his apartment was seized within the

meaning of the Fourth Amendment when police officer

reached into apartment, grabbed arrestee’s arm, and

pulled arrestee out of apartment, without a warrant,

and thus officer’s action violated the Fourth Amendment, precluding qualified immunity on arrestee’s

§ 1983 claim . . . ”

The Eleventh Circuit conflicts with the decision

below by the Seventh Circuit as well. In McClish v.

Nugent, 483 F.3d 1231 (11th Cir.2007), the court held

that when an officer, absent a warrant, probable

cause, and exigent circumstances, “reached into [a]

house, grabbed [the plaintiff], and forcibly pulled him

out onto the porch” in order to arrest him, violated the

plaintiff’s Fourth Amendment rights. McClish, 483

F.3d 1231, 1240-41 (11th Cir.2007). Similar to this

case, in McClish, the defendant officers knocked on

the door and McClish, responding to the officers’ knock,

came to and opened his front door.

Furthermore, the Fourth Circuit concluded that

when an arrestee came to the door in response to an

officer’s knocking, as is the situation in the current

case, the arrestee does not “relinquish completely his

expectations of privacy.” United States v. McCraw,

920 F.2d 224, 229 (4th Cir. 1990). In McCraw, the

Fourth Circuit concluded that “[b]y opening the door

11

only halfway, [Appellant] did not voluntarily expose

himself to the public to the same extent as the

arrestee in Santana. He certainly did not consent to

the officers’ entry into his room to arrest him.” Id.

The Seventh Circuit affirmed jury verdict on

the grounds that the District Court’s did not err in

issuing Jury Instruction No. 8 as to Petitioner’s reasonable expectation of privacy.

The Court of Appeal’s Opinion affirming the

District Court’s Order of Dismissal and Judgment

directly conflicts with the above-discussed decisions by

this Court. This Court should grant review accordingly,

pursuant to Rule1 10(a) to clarify the robustness of an

individual’s privacy rights in the doorway of their

home and prevent an exception that an officer can pull

an individual from their threshold and execute an

arrest without a warrant and without probable cause.

II. Whether Excessive Force Is Allowed

Regardless of Whether There Was a Probable

Cause to Arrest in the First Place?

The Seventh Circuit Court of Appeal’s holding

also raises the issue of whether the force utilized in an

unlawful arrest without probable cause is per se

excessive. The Seventh Circuit affirmed the District

Court’s conclusion that the unlawfulness of an arrest

is an insufficient violation of a right under the excessive force analysis.

The Fourth Amendment protects individuals from

the government’s use of excessive force when detaining

or arresting individuals. See Thomas v. Roach, 165 F.3d

1 All references to “Rule” herein, are to the Rules of the Supreme

Court of the United States.

12

137, 143 (2d Cir. 1999). When determining whether

police officers have employed excessive force in the

arrest context, the Supreme Court has instructed that

courts should examine whether the use of force is

objectively unreasonable “in light of the facts and

circumstances confronting them, without regard to

[the officers’] underlying intent or motivation.” Graham

v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d

443 (1989).

The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted. See

Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692,

143 L.Ed.2d 818 (1999) (“[A]s we explained in Anderson,

the right allegedly violated must be defined at the

appropriate level of specificity before a court can

determine if it was clearly established”). Excessive

force claims are necessarily fact-intensive; whether

the force used is “excessive” or “unreasonable” depends

on “the facts and circumstances of each particular

case.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct.

1865, 104 L.Ed.2d 443 (1989); see also Brosseau v.

Haugen, 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d

583 (2004) (observing that this “area is one in which

the result depends very much on the facts of each

case”).

The Seventh Circuit’s ruling in the case allows

the unlawfulness of an arrest to be considered

irrelevant to the issue of whether the force used in the

arrest was unreasonable. This conflicts with the findings

of several other courts and the relationship between

arrest and excessive force claims is an issue that has

been heavily litigated and requires clarification.

13

District courts in the Third Circuit have found

that when law enforcement has no probable cause for

an arrest, and engages in an unlawful arrest, then any

force applied during the unlawful arrest is unlawful as

well. See Wilder v. Vill. of Amityville, 288 F.Supp.2d

341, 344 (E.D.N.Y. 2003), aff’d, 111 F.App’x 635 (2d

Cir. 2004) (“The use of force is objectively excessive

and in violation of the Fourth Amendment, if it is clear

to a reasonable police officer that such conduct is

unlawful in a given situation (with due recognition of

the fact that police officers often face split-second

decisions)”) (citing Stephenson v. Doe, 332 F.3d 68, 7778 (2d Cir. 2003)); see also Tate v. W. Norriton Twp.,

545 F.Supp.2d 480, 487-88 (E.D. Pa. 2008) (“The

application of excessive force during arrest violates

the Fourth Amendment’s protection against unreasonable seizure. Where an arrest is itself unlawful,

force applied in the course of the arrest is ordinarily

unlawful as well.”).

Courts in the Fourth Circuit have arrived at the

same conclusion. In Souter v. Irby, 593 F. Supp. 3d 270

(E.D. Va. 2022), the court found that where law

enforcement did not have probable cause to carry out

an arrest, “[t]he illegality of Plaintiffs arrest taints

defendant officers’ subsequent actions and renders

the defendant officers liable for Plaintiff’s excessive

force claims.” Emphasizing the lawfulness of the

arrest as a factor in the excessive force analysis, the

court stated that “[t]he evaluation of an excessive

force claim therefore requires an assessment of the

objective reasonableness of the defendant officers’

decision to use force against Plaintiff.” Id.

In the present case, Petitioner contends he was

entitled to relief for excessive force and that because

14

Respondent Officers’ initial seizure was unlawful,

they therefore were not entitled to use any force in

their unlawful arrest of Respondent. Where “[t]he

excessive-force inquiry is governed by constitutional

principles . . . ”, the District Court contention that the

lawfulness of an arrest is irrelevant to an excessive

force analysis is incorrect. United States v. Brown, 871

F.3d 532, 536 (7th Cir. 2017).

III. This Case is of Great Public Importance.

Police officers protect our land by bravely facing

life-threatening dangers without hesitation every day.

As a group, they should be granted defenses by the

courts when they act in defense of the public and

themselves, including in certain situations when harm

or destruction results. However, this deference is not,

and must not, be unlimited. Because in the absence of

accountability for an officer’s unreasonable use of

violence causing death, harm or unjust suffering to

our citizens, the police become none other than a

group of wild west vigilantes.

The Seventh Circuit’s ruling in this case indicates

a dangerous trajectory of weakening Fourth Amendment

protections and granting law enforcement, who have

the power to unconstitutionally inflict serious injury

in their course of employment, greater liberties under

the law to do so.

15

CONCLUSION

For the reasons set forth above, this petition for a

writ of certiorari should be granted.

Respectfully submitted,

Robert E. Barnes, Esq.

Counsel of Record

BARNES LAW

700 South Flower Street, Suite 1000

Los Angeles, CA 90017

(310) 510-6211

robertbarnes@barneslawllp.com

Counsel for Petitioner

October 10, 2023