Petition for Writ of Certiorari — Jeremy Johnson, Petitioner v. Andre D. Boyd

Supreme Court briefOct 20, 2023

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No. 23-_______

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------JEREMY JOHNSON,

Petitioner,

ANDRE D. BOYD,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------THOMAS P. BRANDT

Counsel of Record

LAURA O’LEARY

JOHN F. ROEHM, III

FANNING, HARPER, MARTINSON, BRANDT & KUTCHIN, P.C.

8140 Walnut Hill Lane, Suite 200

Dallas, Texas 75231

(214) 860-0324

tbrandt@fhmbk.com

Attorneys for Petitioner

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Whether circuit court precedent can clearly establish the law for the purpose of qualified immunity

analysis, and, if so, under what circumstances can

it do so.

II. Whether the Supreme Court should heed the concerns of multiple sitting Fifth Circuit judges and

repair the uncertainty and confusion the Fifth Circuit has created through its conflicting and indeterminate precedents relating to split-second useof-force decisions.

PARTIES TO THE PROCEEDING

Boyd v. McNamara, et al.

Cause No. 20-50945;

United States Court of Appeal for the Fifth Circuit

Plaintiff: Andre Boyd

Defendants: Sheriff Parnell McNamara; Rickey

Armstrong; Robert Dillard; McLennan County Jail;

Officer Jeremy Johnson

RELATED CASES

•

Andre D. Boyd v. Sheriff Parnell McNamara, et al.,

Cause No. W-19-CA-634-ADA, U.S. District Court

for the Western District of Texas, Waco Division.

Judgment entered August 21, 2020.

•

Andre D. Boyd v. Sheriff Parnell McNamara, et al.,

No. 20-50945, U.S. Court of Appeals for the Fifth

Circuit. Judgment entered July 24, 2023.

iii

TABLE OF CONTENTS

Page

Questions Presented ............................................

Parties to the Proceeding .....................................

Related Cases ......................................................

Table of Contents .................................................

iii

Table of Authorities .............................................

Petition for a Writ of Certiorari...........................

Opinions Below ....................................................

Jurisdiction ..........................................................

Constitutional and Statutory Provisions ............

Introduction .........................................................

Statement of the Case .........................................

Reasons for Granting the Writ ............................

The Fifth Circuit Has Decided an Important Federal Question That Has Not

Been, But Should Be, Settled by This

Court: Whether, and If So, Under What

Circumstances, Could Opinions From Circuit Courts of Appeals Clearly Establish

the Law For Qualified Immunity Purposes? .........................................................

1. This Court Has Never Determined

Whether Circuit Court Opinions Can

Clearly Establish the Law ...................

2. A Sharply Divided Panel Improperly

Found Three of Its Own Decisions Sufficient to Clearly Establish the Law ..... 10

TABLE OF CONTENTS—Continued

Page

3. Certain Types of Factual Distinctions

Should Preclude Circuit Court Opinions

From Clearly Establishing the Law in

Split-Second Use-of-Force Cases ......... 14

4. Governmental Officials Cannot Receive

Sufficient Clarity or Notice About the

Legality of Their Conduct When Lower

Court Judges Disagree About How to

Apply a Fact-Specific Rule of Law ....... 17

a. Judicial Disagreement Among Circuit Courts Renders the Law Unclear ................................................ 19

b. Judicial Disagreement Within a

Circuit Court Renders the Law Unclear ................................................ 20

The Court Should Repair the Uncertainty

the Fifth Circuit Has Created Through

Its Conflicting and Deeply Indeterminate

Opinions Addressing Split-Second Use-ofForce Decisions .......................................... 25

Conclusion............................................................ 29

APPENDIX

United States Court of Appeals for the Fifth Circuit, Opinion, July 24, 2023 ............................. App. 1

United States Court of Appeals for the Fifth Circuit, Judgment, July 24, 2023 ........................ App. 25

United States District Court for the Western

District of Texas, Order, August 21, 2020 ...... App. 27

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) .......... 9, 12, 20

Beale v. Madigan, 668 Fed. App’x 448 (4th Cir.

2016) ........................................................................20

Beale v. Madigan, No. 5:11-CT-3244-F, 2014 WL

12513870 (E.D.N.C. Aug. 27, 2014) .........................20

Bell v. Wolfish, 441 U.S. 520 (1979) ...................... 14-16

Brosseau v. Haugen, 543 U.S. 194 (2004) .... 12, 17, 26, 29

Carroll v. Carman, 574 U.S. 13 (2014) ............. 9, 12, 19

City & County of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) ...................................................9

City of Tahlequah, Oklahoma v. Bond, 595 U.S.

9 (2021) ....................................................................18

Cloud v. Stone, 993 F.3d 379 (5th Cir. 2021) ..............22

Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) ........ 12, 28

Crane v. City of Arlington, Tex., 60 F.4th 976 (5th

Cir. 2023) ........................................................... 26, 27

Davis v. Scherer, 468 U.S. 183 (1984) .........................13

District of Columbia v. Wesby, 583 U.S. 48

(2018) ................................................................... 9-12

Fairchild v. Coryell County, Tex., 40 F.4th 359

(5th Cir. 2022)..........................................................24

Florence v. Bd. of Chosen Freeholders of County

of Burlington, 566 U.S. 318 (2012).................... 15, 16

Graham v. Connor, 490 U.S. 386 (1989) ............... 14-17

TABLE OF AUTHORITIES—Continued

Page

Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017) .......... 6, 22

Henderson v. Harris County, Tex., 51 F.4th 125

(5th Cir. 2022)..........................................................22

Hollingsworth v. City of St. Ann, 800 F.3d 985

(8th Cir. 2015)..........................................................20

Hunter v. Bryant, 502 U.S. 224 (1991)........................28

Jacobellis v. Ohio, 378 U.S. 184 (1964) .......................25

Kingsley v. Hendrickson, 576 U.S. 389 (2015)....14-16, 20

Kisela v. Hughes, 548 U.S. ___, 138 S. Ct. 1148

(2018) ................................................................... 9, 17

Lombardo v. City of St. Louis, 594 U.S. ___, 141

S. Ct. 2239 (2021) .............................................. 14, 15

Malley v. Briggs, 475 U.S. 335 (1986) ................... 12, 18

Mullenix v. Luna, 577 U.S. 7 (2015) .......... 15, 17-19, 29

Parrish v. Dingman, 912 F.3d 464 (8th Cir. 2019).......20

Pearson v. Callahan, 555 U.S. 223 (2009) ..................19

Ramirez v. Escajeda, 44 F.4th 287 (5th Cir. 2022) .... 12, 21

Ramirez v. Martinez, 716 F.3d 369 (5th Cir.

2013) .............................................................. 6, 12, 21

Reichle v. Howards, 566 U. S. 658 (2012) ..........9, 11-13

Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021) .......9,

......................................................................11-13, 17

Safford Unif. Sch. Dist. No. 1 v. Redding, 557

U.S. 364 (2009) ...............................................6, 18-20

Salazar v. Molina, 37 F.4th 278 (5th Cir. 2022) .........21

vii

TABLE OF AUTHORITIES—Continued

Page

Salinas v. Loud, No. 4:22-CV-0837-P, 2022 WL

17669724 (N.D. Tex. Dec. 14, 2022) ........................27

Scott v. Harris, 550 U.S. 372 (2007)............................26

Shanks v. City of Arlington, No. 4:22-CV-00573-P,

2022 WL 17835509 (N.D. Tex. Dec. 21, 2022) .........27

Smith v. Linthicum, No. 21-20232, 2022 WL

7284285 (5th Cir. Oct. 12, 2022) .............................12

Taylor v. Barkes, 575 U.S. 822 (2015) ..................... 9, 19

Tennessee v. Garner, 471 U.S. 1 (1985) .......................17

Tennyson v. Villarreal, 801 Fed. App’x 295 (5th

Cir. 2020) .................................................................23

Trammell v. Fruge, 868 F.3d 332 (5th Cir. 2017) ... 6, 22

Turner v. Safley, 482 U.S. 78 (1987) ...........................15

Waddleton v. Rodriguez, 750 Fed. App’x 248 (5th

Cir. 2018) .................................................................24

Wilson v. Layne, 526 U.S. 603 (1999) ..........................19

Winzer v. Kaufman County, 916 F.3d 464 (5th

Cir. 2019) ........................................................... 27, 28

Winzer v. Kaufman County, 940 F.3d 900 (5th

Cir. 2019) .................................................................28

Young v. Kent County Sheriff ’s Dep’t, No. 211222, 2022 WL 94990 (6th Cir. Jan. 10, 2022) .......17

viii

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ........................................... 10, 17

U.S. Const. amend. XIV .................................... 2, 10, 17

STATUTES

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

42 U.S.C. §1983 .............................................................4

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jeremy Johnson respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit.

---------------------------------♦---------------------------------

OPINIONS BELOW

The Fifth Circuit issued its opinion in Andre D.

Boyd v. Sheriff Parnell McNamara, et al., Fifth Circuit

Court of Appeals No. 20-50945 on July 24, 2023. This

opinion is available at 74 F.4th 662 and is reproduced

at Pet. App. 1-24. The District Court’s August 21, 2020

opinion in Andre D. Boyd v. Sheriff Parnell McNamara,

et al., United States District Court for the Western District of Texas, Waco Division, Cause No. W-19-CA-634ADA is reproduced at Pet. App. 27-42.

---------------------------------♦---------------------------------

JURISDICTION

The court of appeals entered its judgment and

opinion in this case on July 24, 2023.1 This Court has

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

---------------------------------♦---------------------------------

Pet. App. 1-26.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourteenth Amendment to the U.S. Constitution states:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

---------------------------------♦---------------------------------

INTRODUCTION

This petition presents the Court with important

federal questions concerning the application of qualified immunity.

Although this Court has repeatedly expressed uncertainty about whether circuit court opinions, alone,

can clearly establish law for qualified immunity purposes, a sharply divided panel of the Fifth Circuit

found three of its own opinions sufficient to clearly establish the law in a split-second use-of-force case. The

panel majority did so based only on its own ipse dixit,

explaining that Fifth Circuit precedent was sufficient

to clearly establish the law because other Fifth Circuit

panels had previously found other rules of law clearly

established by relying only on Fifth Circuit opinions.

In so holding, the panel majority disregarded a vigorous dissent which noted this Court’s longstanding

uncertainty about this issue and the fact that this

Court has repeatedly reserved this very question. The

Court should grant review because the instant appeal cleanly presents an important federal question of

broad application—whether circuit court precedent

alone can clearly establish the law.

This petition also presents important related

questions concerning the circumstances under which

circuit court precedent could, or could not, clearly establish the law. The panel majority determined that

the law regarding split-second excessive force decisions by a corrections official was clearly established

based only on three of its prior excessive force opinions

which arose outside of a correctional setting. The Court

should grant review to determine whether circuit court

opinions alone could clearly establish the law when:

(1) the lower court opinions arose from a meaningfully

different context; and (2) lower court decisions are inconsistent.

The Court should also grant review to correct the

Fifth Circuit’s error in arrogating to itself authority

that belongs only to this Court. The panel majority

mistakenly asserted that judicial disagreement about

the contours of a right does not automatically render

the law unclear if the Fifth Circuit has been clear. This

Court held no such thing, but only noted that judicial

disagreement does not automatically render the law

unclear if this Court has been clear.

Finally, the Court should grant review to address

the entrenched inconsistencies and uncertainties of

the Fifth Circuit’s precedent relating to officers’ splitsecond decisions about using force. This appeal marks

the latest in a line of cases in which sitting Fifth Circuit judges have bemoaned the confusing and conflicting state of excessive-force jurisprudence in the Fifth

Circuit—which the Circuit itself cannot, or will not, repair. The Fifth Circuit’s inconsistency in this area disserves one important purpose of qualified immunity:

encouraging officers to enforce the law, even in tense,

uncertain, and rapidly changing situations, rather

than stand down and jeopardize community safety. The

Court should grant review to address this important

issue.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Andre Boyd asserted a claim for excessive force

under 42 U.S.C. §1983 in connection with an altercation Boyd had with a jailer, Officer Jeremy Johnson,

while Boyd was a pretrial detainee.2 Boyd claimed

that, on August 28, 2019, he had a verbal altercation

with Johnson who then attempted to handcuff Boyd.

While Johnson was attempting to apply the handcuffs,

Boyd pulled his left arm away, turned his head toward

Johnson and yelled at the officer.3 Johnson then deployed his taser to gain control over Boyd.4

Pet. App. 28-29.

Pet. App. 29-30.

Pet. App. 29.

In support of his motion for summary judgment in

which he asserted qualified immunity, Johnson submitted a video recording of the incident.5 The district

court and the Fifth Circuit reviewed this video evidence.6

The district court found that “the video evidence

confirms that there was no violation of [Boyd’s] constitutional rights,” because the video evidence “shows no

undue force was used against [Boyd],” who “reacted

strongly to Johnson’s attempt to apply hand restraints

and turned emphatically toward Johnson.”7 The district court explained that Boyd “admits he was arguing

with Johnson and being disruptive,” and, when Johnson “attempted to restrain [Boyd, he] jerked away and

turned around demonstratively and continued yelling

and arguing with Johnson.”8 The district court concluded that Boyd “was tasered due to his aggressive

and non-compliant behavior and the amount of force

used was objectively reasonable.”9

A sharply divided panel of the Fifth Circuit reversed the district court’s decision.10 The panel majority held that a jury could find that Boyd posed no

threat, noting that Boyd stood with his back to Johnson “for a full four seconds before Johnson deployed his

Pet. App. 31.

Pet. App. 8, 23-24, 37.

Pet. App. 37.

Pet. App. 38.

Pet. App. 10-24.

taser.”11 The panel majority then held that three Fifth

Circuit cases involving excessive force claims in connection with arrests were sufficient “to put Johnson

on notice that his actions, on at least one permissible

reading of the evidence, constituted unconstitutionally

excessive force.”12

In response to Johnson’s argument that it is not

clear whether Fifth Circuit precedents, alone, as opposed to Supreme Court opinions, can clearly establish

the law for purposes of qualified immunity, the panel

majority cited nineteen of its own precedents in which

Fifth Circuit panels had relied exclusively on Fifth Circuit opinions to hold that various rules of law were

clearly established.13

In response to Johnson’s concern about how he

could have been on notice that his conduct would violate the law, given that the district court found no constitutional violation, the panel majority contended

that “[t]he fact that ‘other federal, or state, courts, and

the fact that a single judge, or even a group of judges,

disagrees about the contours of a right does not automatically render the law unclear’ if this circuit has

been clear.”14

Pet. App. 8.

Pet. App. 11-14 (relying on Trammell v. Fruge, 868 F.3d

332 (5th Cir. 2017); Hanks v. Rogers, 853 F.3d 738 (5th Cir. 2017);

Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013)).

Pet. App. 16-19 and n.4.

Pet. App. 20 (partially quoting Safford Unif. Sch. Dist.

No. 1 v. Redding, 557 U.S. 364, 378 (2009)).

Judge Andrew Oldham dissented from the panel

majority’s holding on Boyd’s excessive force claim, explaining that this Court has never authorized circuit

courts to rely exclusively on their own precedent to

find that a rule was clearly established for qualified

immunity purposes.15 Judge Oldham opined that the

Fifth Circuit’s split-second excessive force precedent

does not provide sufficient notice to officers concerning the legality of their conduct because it is “oftencontradictory” and “deeply indeterminate.”16 Judge

Oldham concluded by expressing his opinion that “it is

unwise to give a panel of three judges the power to set

clearly established law and thereby bind every law enforcement officer” throughout the Fifth Circuit, and

that “it is particularly unwise when the underlying legal standard is so open-ended and our precedents are

so contradictory.”17

---------------------------------♦---------------------------------

Pet. App. 21-22.

Pet. App. 22-23.

Pet. App. 24.

REASONS FOR GRANTING THE WRIT

A. The Fifth Circuit Has Decided an Important

Federal Question That Has Not Been, But

Should Be, Settled by This Court: Whether,

and If So, Under What Circumstances, Could

Opinions From Circuit Courts of Appeals

Clearly Establish the Law For Qualified Immunity Purposes?

The Court should grant review in this matter because this appeal cleanly presents an important federal question that this Court has repeatedly declined

to settle—whether any precedent, other than this

Court’s own decisions, is sufficient to clearly establish

the law for the purpose of qualified immunity analysis.

The case at bar illustrates significant division

among circuit court judges with respect to the proper

analysis of the “clearly established law” prong of qualified immunity analysis. The Court should take this

opportunity to answer this important federal question

which affects a multitude of litigants and governmental officials throughout the country and which has remained open for many years.

1. This Court Has Never Determined Whether

Circuit Court Opinions Can Clearly Establish the Law.

In applying the “clearly established law” prong of

qualified immunity analysis,18 this Court has noted

that a rule must be “settled law, meaning that it is “dictated by ‘controlling authority’ or ‘a robust consensus

of cases of persuasive authority.”19 However, this Court

has neither explained those terms nor determined

whether, and if so, under what circumstances, circuit

court opinions could clearly establish the law. Instead,

this Court has repeatedly expressed uncertainty on

this point and reserved this question.20

E.g., Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (identifying the two prongs of qualified immunity).

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting al-Kidd, 563 U.S. at 741-42).

E.g., Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021) (expressing uncertainty as to whether circuit court precedent could

clearly establish law for the purposes of §1983); Wesby, 583 U.S.

at 66 n.8 (“We have not yet decided what precedents—other than

our own—qualify as controlling authority for purposes of qualified

immunity.”) (citing Reichle v. Howards, 566 U. S. 658, 665-66

(2012) (reserving the question whether court of appeals decisions

can be “a dispositive source of clearly established law”)); City &

County of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 614

(2015) (“even if ‘a controlling circuit precedent could constitute

clearly established federal law in these circumstances,’ it does not

do so here”) (quoting Carroll v. Carman, 574 U.S. 13, 17 (2014)

(per curiam)); see also Kisela v. Hughes, 548 U.S. ___, 138 S. Ct.

1148, 1153 (2018) (per curiam) (quoting Sheehan, 575 U.S. at

614); Taylor v. Barkes, 575 U.S. 822, 826 (2015) (per curiam)

(quoting Sheehan, 575 U.S. at 617).

2. A Sharply Divided Panel Improperly

Found Three of Its Own Decisions Sufficient to Clearly Establish the Law.

In the instant appeal, a sharply divided panel of

the Fifth Circuit reversed an order granting summary

judgment to Johnson, a jailer who asserted qualified

immunity in response to Boyd’s claim that he was subjected to excessive force as a pretrial detainee.21 The

panel majority found Boyd’s reliance on three Fifth

Circuit opinions addressing Fourth Amendment excessive force claims in connection with arrests22 sufficient,

alone, to clearly establish the relevant law for the purpose of determining whether Johnson was entitled to

qualified immunity from Boyd’s Fourteenth Amendment excessive force claim which arose in a correctional setting.23

As this Court has “not yet decided what precedents—other than [this Court’s] own—qualify as controlling authority for purposes of qualified immunity,”24

Johnson argued that it is not clear whether circuit

court precedents, alone, can clearly establish the law

for qualified immunity analysis.25 The panel majority

responded to this argument by stating, “[a] proverbial

Pet. App. 10-24.

Supra at n.12.

Pet. App. 10-20. The district court found that Johnson had

not committed any constitutional violation and was, therefore, entitled to qualified immunity. Pet. App. 37-38.

Wesby, 583 U.S. at 66 n.8.

Pet. App. 16.

mountain of binding authority is to the contrary.”26 The

panel majority then cited nineteen cases in which the

Fifth Circuit relied solely upon its own opinions to determine that various rules of law had been clearly established.27 The majority noted, “[w]e routinely rely on

our own cases to determine whether a rule of law has

been clearly established.”28 Thus, the panel majority

reasoned that Fifth Circuit precedent is sufficient to

clearly establish the law because the Fifth Circuit has

repeatedly found rules of law to be clearly established

based only on its own precedent. The panel majority

neither acknowledged nor addressed the fact that

this Court has repeatedly expressed uncertainty about

whether lower courts’ opinions, alone, could clearly establish propositions of law.

Judge Oldham dissented from the panel majority’s

holding on Boyd’s excessive force claim, explaining

that this Court has never authorized lower courts to

rely exclusively on circuit court precedent to clearly

establish the law.29 Judge Oldham opined that, without a clear instruction from this Court regarding

the relevance of circuit precedent, “we cannot expect

everyday officers to draw the necessary inferences

from our large, ever-growing, and often-contradictory

Pet. App. 16.

Pet. App. 16-19 [n.4].

Pet. App. 16, 19.

Pet. App. 22 (citing Wesby, 583 U.S. at 66 n.8; RivasVillegas, 595 U.S. at 6; and Reichle, 566 U.S. at 665).

precedents.”30 Judge Oldham concluded by expressing

his belief that “it is unwise to give a panel of three

judges the power to set clearly established law and

thereby bind every law enforcement officer in three

States, governing every conceivable emergency situation in every community” across the circuit.31

Judge Oldham’s dissent reflects a broader divide

within the circuit, in which multiple Fifth Circuit

judges have relied upon this Court’s statements in

Wesby, Rivas-Villegas, Reichle, and/or Carroll, to challenge judges’ reliance on circuit court opinions alone to

find law clearly established.32

Pet. App. 22 (citing al-Kidd, 563 U.S. at 741 (regarding the

need for a high level of clarity about the underlying law, such that

every reasonable official would understand the type of conduct

which would violate it); Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam) (emphasizing the need for fair warning to officers); and Malley v. Briggs, 475 U.S. 335, 341 (1986) (explaining

that “qualified immunity protects ‘all but the plainly incompetent

or those who knowingly violate the law’ ”) (emphasis Judge Oldham’s)).

Pet. App. 24.

E.g., Cole v. Carson, 935 F.3d 444, 460 n.4 (5th Cir. 2019)

(en banc) (Jones, J., dissenting, joined by Smith, Ho, Duncan,

Oldham, JJ., and Owen [now Richman], C.J.) (relying on Wesby,

583 U.S. at 66 n.8, Carroll, 574 U.S. at 17, and Reichle, 566 U.S.

at 665-66 to challenge a panel’s finding of clearly established

law based only on unpublished Fifth Circuit cases); Ramirez v.

Escajeda, 44 F.4th 287, 292-93 (5th Cir. 2022) (Jones, Stewart,

Duncan, JJ.) (citing Rivas-Villegas and refusing to assume that

Fifth Circuit precedent alone can clearly establish the law); see

also, e.g., Smith v. Linthicum, No. 21-20232, 2022 WL 7284285,

*5 n.5 (5th Cir. Oct. 12, 2022), (King and Engelhardt, JJ., recognizing that “the Supreme Court has explicitly left open the question of whether Circuit law alone can clearly establish the law for

The Court should grant review to settle the fundamental question of whether precedent from lower

courts can clearly establish rules of law for qualified

immunity purposes.

If so, the Court should also grant review to explain

the circumstances under which lower courts’ opinions

could, or could not, provide the necessary clarity and

notice to governmental officials about the legality of

their conduct.33 In the circumstances presented by this

appeal, the Court should determine:

(1) the types of factual distinctions which

would preclude circuit court opinions

from clearly establishing the law with respect to split-second use-of-force decisions; and

(2) whether judicial disagreement among circuit courts or within a circuit court prevents circuit court opinions from clearly

establishing the law.

qualified immunity purposes,” citing Rivas-Villegas, 595 U.S. at

6, but stating that the Fifth Circuit has a practice of assigning its

own decisions such legal weight); id. at *7 n.3, (Duncan, J., dissenting from panel’s finding that one Fifth Circuit case was sufficient to clearly establish the law, citing Rivas-Villegas, 595 U.S.

at 6).

E.g., Reichle, 566 U.S. at 664 (“To be clearly established, a

right must be sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.”)

(citations omitted, cleaned up); Davis v. Scherer, 468 U.S. 183,

195 (1984) (“officials can act without fear of harassing litigation

only if they reasonably can anticipate when their conduct may

give rise to liability”).

3. Certain Types of Factual Distinctions

Should Preclude Circuit Court Opinions

From Clearly Establishing the Law in

Split-Second Use-of-Force Cases.

The Court should grant review to identify the

types of factual distinctions which would preclude circuit court opinions from providing officers with sufficient notice about the legality of a split-second decision

to use force.

The case at bar illustrates this issue. Although the

lawsuit involves an excessive force claim by a pretrial

detainee against a jailer, the panel majority found the

applicable law clearly established based only on three

of its own opinions which did not involve a correctional

setting.34 It is doubtful that use-of-force cases arising

outside of correctional settings could provide corrections officers with sufficient notice about the legality of

a jailer’s split-second decision to use force against an

inmate, given: (1) the fact that the applicable constitutional standard is “not capable of precise definition”;35

(2) special concerns about safety and the need to maintain order within correctional facilities;36 and (3) the

need to identify clearly established law at a high level

Supra at n.12.

Graham v. Connor, 490 U.S. 386, 396 (1989); Bell v. Wolfish, 441 U.S. 520, 559 (1979); see also Lombardo v. City of St.

Louis, 594 U.S. ___, 141 S. Ct. 2239, 2241 (2021) (per curiam)

(noting the fact-specific nature of the standard and stating that

courts “ ‘cannot apply this standard mechanically’ ”) (quoting

Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)).

Kingsley, 576 U.S. at 399-400; Graham, 490 U.S. at 397;

Bell, 441 U.S. at 540.

of particularity when analyzing qualified immunity for

excessive force claims.37

In assessing claims of excessive force in a correctional setting, courts must determine whether the officers’ actions are objectively reasonable in light of the

facts and circumstances confronting them.38 Courts

“cannot apply this standard mechanically” but must

give “careful attention to the facts and circumstances

of each particular case.”39 Courts must take into account the “ ‘legitimate interests that stem from [the

government’s] need to manage the facility in which the

individual is detained.’ ”40

This Court recognizes that running a correctional

facility is an inordinately difficult undertaking and

that maintaining safety and order at jails “ ‘requires

the expertise of correctional officials, who must have

substantial discretion to devise reasonable solutions to

the problems they face.’ ”41 Correctional officers daily

face significant concerns about safety and order within

their facilities and, therefore, “must be able to take

E.g., Mullenix v. Luna, 577 U.S. 7, 12-13 (2015) (per curiam) (and cases cited therein).

Lombardo, 141 S. Ct. at 2241 (citing Graham, 490 U.S. at

397).

Id. (citing Kingsley, 576 U.S. at 397 and Graham, 490 U.S.

at 396).

Kingsley, 576 U.S. at 397 (quoting Bell, 441 U.S. at 540).

Kingsley, 576 U.S. at 399 (quoting Florence v. Bd. of Chosen Freeholders of County of Burlington, 566 U.S. 318, 326 (2012));

see also Turner v. Saf ley, 482 U.S. 78, 84-85 (1987) (“The difficulties of operating a detention center must not be underestimated

by the courts.”).

steps to maintain security and order at the institution”

where an individual is detained.42 Indeed, ten years

ago, this Court recognized that “[i]nmates commit more

than 10,000 assaults on correctional staff every year

and many more among themselves.”43 This Court has

long counseled lower courts that considerations of

maintaining security and order within correctional facilities “are peculiarly within the province and professional expertise of corrections officials.”44 Knowing

that “[o]fficers facing disturbances ‘are often forced to

make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving,’ ” this Court

directs that lower courts “must take account of the legitimate interests in managing a jail, acknowledging

as part of the objective reasonableness analysis that

deference to policies and practices needed to maintain

order and institutional security is appropriate.”45

Given the nature of excessive force analysis, Judge

Oldham opined that it is “particularly unwise” to give

a panel of three judges the power to set clearly established law “when the underlying legal standard is so

open-ended and our precedents are so contradictory.”46

Indeed, noting that its objective reasonableness test

for excessive force claims “ ‘is not capable of precise definition or mechanical application,’ ” this Court has held

Bell, 441 U.S. at 540.

Florence, 566 U.S. at 333.

Bell, 441 U.S. at 540 n.23.

Kingsley, 576 U.S. at 399-400 (quoting Graham, 490 U.S.

at 397) (emphasis added).

Pet. App. 24.

that its own excessive force opinions do not provide fair

warning to officers about the constitutionality of a

given use of force.47

Circuit court opinions which address excessive

force claims under the Fourth Amendment in connection with arrests do not analyze the unique dangers

and special safety concerns present in a detention facility. Therefore, such opinions do not address one of

the factors necessary to a finding of excessive force under the Fourteenth Amendment for conduct in a detention facility and cannot clearly establish the law for

claims arising in that unique setting.48

4. Governmental Officials Cannot Receive

Sufficient Clarity or Notice About the

Legality of Their Conduct When Lower

Court Judges Disagree About How to Apply a Fact-Specific Rule of Law.

This Court has repeatedly stressed that qualified

immunity gives public officials breathing room to make

mistakes and that, properly applied, it protects “all

but the plainly incompetent or those who knowingly

Brosseau, 543 U.S. at 199 (quoting Graham, 490 U.S. at

396 and citing Tennessee v. Garner, 471 U.S. 1 (1985)).

See, e.g., Young v. Kent County Sheriff ’s Dep’t, No. 211222, 2022 WL 94990, *7 (6th Cir. Jan. 10, 2022) (Murphy, J.,

dissenting) (explaining that, in light of this Court’s holdings in

Rivas-Villegas, 595 U.S. at 6, Kisela, 138 S. Ct. at 1153, and

Mullenix, 577 U.S. at 13, the distinction between use-of-force

cases involving arrests and those involving an attempt to maintain security at a jail is material).

violate the law.”49 Governmental officials cannot be

said to have been plainly incompetent or to have knowingly violated the law when judges, including circuit

court judges, disagree about application of that rule of

law.

The panel majority in the instant appeal rejected

the argument that a jailer could not have received sufficient notice about the illegality of his conduct if

judges had found such conduct constitutional.50 Misapplying a statement from this Court, the majority

opined “[t]he fact that ‘other federal, or state, courts,

and the fact that a single judge, or even a group of

judges, disagrees about the contours of a right does not

automatically render the law unclear’ if this circuit

has been clear.”51 In Safford, this Court explained that

judicial disagreement about the contours of a right

does not necessarily render the law unclear if this

Court has been clear—not if a circuit court has been

clear.52 Indeed, this Court granted qualified immunity

in Safford because circuits courts’ varied holdings on

the underlying rule of law demonstrated that this

Court had not been sufficiently clear in its prior statement of law.53

E.g., City of Tahlequah, Oklahoma v. Bond, 595 U.S. 9, 12

(2021) (per curiam); Mullenix, 577 U.S. at 12; Malley, 475 U.S. at

341.

Pet. App. 20.

Pet. App. 20 (partially quoting Safford, 557 U.S. at 378)

(emphasis added).

Safford, 557 U.S. at 378.

Id.

The Court should grant review to correct the Fifth

Circuit’s misapplication of this Court’s statement in

Safford and to determine whether judicial disagreement among circuit courts or within a circuit court prevents a rule of law from being clearly established.

a. Judicial Disagreement Among Circuit Courts Renders the Law Unclear.

This Court has recognized that governmental officials can look to precedent from courts outside of

their own jurisdictions to determine the legality of

their actions.54 This makes sense because the meaning

of constitutional provisions cannot vary depending

upon one’s location within the country. How, then,

could every reasonable official be on notice that his

conduct would violate the law when circuit courts’

opinions differ about the application of that law? To the

contrary, this Court recognizes that public officials

are entitled to immunity when circuit courts, or circuit

court judges, disagree about constitutional questions.55

E.g., Mullenix, 577 U.S. at 17 (analyzing a case from a

sister circuit which suggested that an officer’s threat assessment

was reasonable); Pearson v. Callahan, 555 U.S. 223, 244-45

(2009) (finding no violation of clearly established law because

out-of-circuit opinions supported the official’s understanding of

the law).

E.g., Taylor, 575 U.S. at 826 (rejecting a circuit court’s reliance on two of its own opinions which contradicted holdings from

other circuit courts); Carroll, 574 U.S. at 19-20 (finding that a

proposition of law was not “beyond debate” because the only circuit court opinion on which the appellate court relied conflicted

with cases from other circuits); Wilson v. Layne, 526 U.S. 603, 618

In the context of the instant appeal, the law was

not clearly established because Johnson’s conduct conformed to holdings from the Fourth and Eighth Circuits which found officers’ force reasonable in light of

the special concerns applicable in the correctional setting.56

b. Judicial Disagreement Within a Circuit Court Renders the Law Unclear.

The panel majority’s misapplication of this Court’s

statement in Safford also merits review because it is

(1999) (“If judges thus disagree on a constitutional question, it is

unfair to subject police to money damages for picking the losing

side of the controversy.”); see also al-Kidd, 563 U.S. at 743 (finding that the official was neither plainly incompetent, nor knowingly violating the law, in part because eight circuit court judges

found the conduct constitutional).

E.g., Beale v. Madigan, 668 Fed. App’x 448, 449 (4th Cir.

2016) (per curiam) (applying Kingsley, 576 U.S. at 397, to find

that corrections officer did not use excessive force when they tased

a handcuffed pretrial detainee for more than twenty-five seconds

after the detainee engaged in a verbal confrontation with a jailer

and refused to sit); see also Beale v. Madigan, No. 5:11-CT-3244F, 2014 WL 12513870 at *1 (E.D.N.C. Aug. 27, 2014) (providing

the detainee’s contentions about the context and force used);

Hollingsworth v. City of St. Ann, 800 F.3d 985, 988, 990-91 (8th

Cir. 2015) (corrections officer did not violate clearly established

law when he repeatedly tased a pretrial detainee who refused to

change into a detention center jumpsuit and who swore at the officer); see also Parrish v. Dingman, 912 F.3d 464, 468-69 (8th Cir.

2019) (applying Kingsley, 576 U.S. at 399-400 to find that a jailer

did not use excessive force when he forced a pretrial detainee into

a wall and brought him to the ground for handcuffing after the

detainee stepped forward toward an open cell door while holding

a mattress).

inaccurate—the Fifth Circuit has been far from clear

in its holdings concerning officers’ split-second decisions about using force, including their opinions relating specifically to tasing.

With good cause Judge Oldham queried how “everyday officers” could draw the necessary inferences

about the legality of their conduct from the Fifth Circuit’s often-contradictory precedents.57 Judge Oldham

wondered how an officer is supposed to choose, “in a

dangerous split-second moment” whether to follow two

Fifth Circuit opinions which found tasing acceptable—

even when the suspect appeared to have surrendered

or the suspect was unresponsive and hanging from a

basketball hoop with a rope around his neck—or to follow a Fifth Circuit opinion which found tasing excessive when a man who merely arrived at a location

where police were executing an arrest warrant for a

different person refused to put his hands behind his

back and pulled his arm away from an officer.58

Other cases further demonstrate widespread judicial disagreement within Fifth Circuit in split-second

use-of-force cases, including cases involving tasing or

cases arising in a correctional setting. For instance,

nine months before the panel issued its opinion in the

instant case, another Fifth Circuit panel decided a

case in which an officer repeatedly tased a suspect who

Pet. App. 22.

Pet. App. 22-23 (citing Salazar v. Molina, 37 F.4th 278 (5th

Cir. 2022); Ramirez, 44 F.4th at 287; and Ramirez, 716 F.3d at

369).

claims that he stopped running, turned his head

slightly toward the officer, and raised his hands in the

air as if to surrender.59 The Fifth Circuit affirmed the

officer’s entitlement to qualified immunity based only

on the clearly established law prong.60 The Henderson

panel rejected the plaintiff ’s reliance on Trammell and

Hanks,61 explaining that, because these cases arose under different circumstances, the plaintiff relied on

them only for general statements of law, and “such general statements are insufficient to produce clearly established law.”62

In Cloud, a Fifth Circuit panel found that an officer did not use excessive force when he twice tased a

suspect who turned toward the officer while the officer

was trying to handcuff the suspect.63 The panel rejected the suspect’s contention that he only turned

around to read the officer’s lips, explaining that “we

measure excessive force by the objective circumstances,

not by the subjective intentions of the arrestee.”64 The

panel also concluded that the officer was justified in

tasing the suspect again within seconds of his first tase

Henderson v. Harris County, Tex., 51 F.4th 125, 129 (5th

Cir. 2022) (per curiam).

Id. at 135.

Trammell, 868 F.3d at 343; Hanks, 853 F.3d at 745-46.

These are two of the three Fifth Circuit opinions which the panel

majority in the instant appeal found sufficient to clearly establish

the law. Pet. App. 12-13.

Henderson, 51 F.4th at 134 (citation omitted).

Cloud v. Stone, 993 F.3d 379, 385-87 (5th Cir. 2021).

Id. at 386.

because the initial tase had no effect and the situation

remained tense, uncertain, and rapidly evolving.65

In Tennyson, an excessive force case arising in a

correctional setting, the Fifth Circuit recognized a corrections officer’s entitlement to qualified immunity

when the officer dislocated an inmate’s shoulder

when attempting to handcuff the inmate.66 The inmate

claimed that he and eight other inmates were called

out of their cells for rapping and/or talking loudly and

were told to face the wall.67 The inmate contended that,

as he was facing the wall, he told a corrections officer

that she had the wrong people and that she was engaging in a discriminatory investigation based on the inmates’ race.68 According to the inmate, “before he

completed his remarks, another . . . officer approached

him from behind ‘grabbing and twisting his arm with

his body against the wall, then slammed him to the

floor.’ ”69 The Fifth Circuit found that the officer’s use

of force was not unreasonable.70

In Waddleton, the Fifth Circuit approved corrections officers’ use of force when, in response to an angry

inmate’s sudden movement in which he turned toward

Id.

Tennyson v. Villarreal, 801 Fed. App’x 295, 296 (5th Cir.

2020) (per curiam).

Tennyson v. Harris County, Tex., No. 4:18-CV-0119, 2019

WL 2161562, *1 (S.D. Tex. May 17, 2019).

Id.

Id. (cleaned up).

Tennyson, 801 Fed. App’x at 296.

two officers, the officers used a take-down technique to

bring the already-handcuffed inmate to the ground.71

The court explained that “the officers reasonably perceived [the inmate’s] sudden action as a threat requiring the use of force, even if the movement was caused

by a loss of balance.”72

In Fairchild, the Fifth Circuit found that it was

not clearly established that using pepper spray on a

pretrial detainee multiple times and throwing her to

the ground were excessive uses of force when the detainee refused directions to stop tapping her hairbrush

on her cell door.73

These cases mark a significant departure from the

panel majority’s reasoning in the instant appeal.74 The

Court should grant review to address whether such

widespread judicial disagreement among circuit courts

and within circuit court decisions precludes a circuit

court from finding the relevant rule of law clearly established based only on a few of that circuit court’s

opinions.

Waddleton v. Rodriguez, 750 Fed. App’x 248, 251, 254 (5th

Cir. 2018) (per curiam).

Id. at 254.

Fairchild v. Coryell County, Tex., 40 F.4th 359, 364, 367

(5th Cir. 2022).

Pet. App. 9-14.

B. The Court Should Repair the Uncertainty

the Fifth Circuit Has Created Through Its

Conflicting and Deeply Indeterminate Opinions Addressing Split-Second Use-of-Force

Decisions.

The Court should heed the concerns of multiple

sitting Fifth Circuit judges and grant review to repair

the confusion the Fifth Circuit has created through its

conflicting and indeterminate decisions about qualified

immunity in cases involving officers’ split-second decisions to use force.

In the instant appeal, Judge Oldham expressed

concerns about the Fifth Circuit’s excessive force precedent, opining that the Circuit’s inconsistent decisions

about tasing do not provide sufficient guidance to officers about whether they can constitutionally use that

level of force in a given situation.75 Judge Oldham is

“increasingly concerned” that the Fifth Circuit’s “excessive-force cases are governed by Justice Stewart’s

unsatisfying standard of ‘I know it when I see it.’ ”76

Characterizing the Fifth Circuit’s excessive force precedent as “deeply indeterminate,” Judge Oldham

stated, “when we are bound only by conflicting circuit

precedent, it is unclear to me if and how we are bound

at all.”77 Judge Oldham believes that the Fifth Circuit’s

exclusive reliance on its own excessive force precedent

Pet. App. 22-23.

Pet. App. 23 (quoting Jacobellis v. Ohio, 378 U.S. 184, 197

(1964) (Stewart, J., concurring)).

Pet. App. 23.

contributes to the Circuit’s “predictably unpredictable

interpretations of the ‘hazy border between excessive

and acceptable force.’ ”78

Judge Oldham’s worries in the instant appeal echo

other judges’ concerns about the confusing and conflicting state of excessive-force jurisprudence in the

Fifth Circuit—which the Circuit itself cannot, or will

not, repair.

For example, in connection with the Fifth Circuit’s

denial of en banc review in Crane, six Fifth Circuit

judges, including two judges who served on the panel

in the instant appeal, disagreed with the Crane panel’s

qualified immunity analysis and expressed frustration

about the Fifth Circuit’s unwillingness, as a body, to

issue consistent opinions in split-second use-of-force

cases.79 Judge Oldham and his co-dissenters described

the Fifth Circuit’s refusal to review the Crane opinion

en banc as “revelatory of a general reluctance (at best)

or refusal (at worst) to devote the full court’s resources

to qualified-immunity cases” and characterized this as

“imprudent.”80 Judge James Ho characterized the Fifth

Pet. App. 24 (quoting Brosseau, 543 U.S. at 201 and citing

this Court’s recognition in Scott v. Harris, 550 U.S. 372, 383-84

(2007) that “there is ‘no obvious way to quantify’ risks to decide

whether force is reasonable”).

Crane v. City of Arlington, Tex., 60 F.4th 976, 977-79 (5th

Cir. 2023) (per curiam). In July of 2023, this Court requested a

response to the petitions for writ of certiorari in the Crane case,

and these petitions are currently set for conference on October 27,

2023.

Crane, 60 F.4th at 978 (Oldham, J., joined by Jones, Smith,

Duncan, and Wilson, JJ., dissenting from denial of rehearing en

Circuit’s split-second excessive force opinions as “confusing to citizens and police officers in our circuit” but

voted against rehearing en banc because he saw no

hope of advancing the rule of law within the Circuit.81

According to the dissenting judges and Judge Ho, “we

sow the seeds of uncertainty in our [excessive force]

precedents—which grow into a briar patch of conflicting rules, ensnaring district courts and litigants

alike.”82 At least one district judge in the Fifth Circuit has forthrightly agreed that the Circuit’s conflicting excessive force opinions create difficulty for trial

courts.83

In Winzer, Judge Edith Clement criticized a panel

opinion, “written from the comfort of courthouse chambers” which ignored the deference judges owe to officers’ split-second decisions about the need for force,

explaining that the opinion improperly encourages

banc). Chief Judge Richman joined Judges Jones, Smith, Duncan,

Oldham, and Wilson voting in favor of rehearing en banc but did

not file or join an opinion.

Id. at 978 (Ho, J., concurring in denial of rehearing en

banc, but agreeing with the dissenting judges that the panel

should have granted qualified immunity).

Id. at 978-79.

Shanks v. City of Arlington, No. 4:22-CV-00573-P, 2022

WL 17835509, *2 (N.D. Tex. Dec. 21, 2022) (noting that the Fifth

Circuit’s application of the qualified immunity test “is often a

morass of unpredictability”); Salinas v. Loud, No. 4:22-CV-0837-P,

2022 WL 17669724, *6 (N.D. Tex. Dec. 14, 2022) (“sailing through

the notoriously murky and choppy precedent from the Fifth Circuit in qualified immunity cases is a daunting and confusing task

for any district court”).

timidity from law enforcement officers.84 Judge Clement noted that qualified immunity should prevent officers from having “to parse nuances in case law from

various courts and jurisdictions to discover the bounds

of their conduct” and expressed the hope that the panel

majority’s “errors will be corrected before we face their

effects.”85 In another ten to six vote, the Fifth Circuit

denied rehearing en banc in Winzer.86 Dissenting from

the denial of en banc review, Judge Ho, joined by

Judges Smith, Clement, and Engelhardt, expressed

“deep concerns” that the Fifth Circuit’s spit-second excessive force opinions send a dangerous message to law

enforcement officers—“[s]ee something, do nothing.”87

This troubling message contravenes this Court’s guidance,88 and that of six sitting Fifth Circuit judges, concerning how officers should respond to emergent

situations.89

Winzer v. Kaufman County, 916 F.3d 464, 482 (5th Cir.

2019) (per curiam) (Clement, J., dissenting in part).

Id. at 480, 483.

Winzer v. Kaufman County, 940 F.3d 900 (5th Cir. 2019)

(per curiam).

Id. at 902-03 (Ho., J., joined by Smith, Clement, and Engelhardt, JJ., dissenting from denial of rehearing en banc).

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam)

(noting that “officials should not err always on the side of caution

because they fear being sued”) (citation omitted).

“In the wide gap between acceptable and excessive uses of

force, however, immunity serves its important purpose of encouraging officers to enforce the law, in ‘tense, uncertain and rapidly

evolving’ split-second situations, rather than stand down and

jeopardize community safety.” Cole, 935 F.3d at 465 (Jones, J.,

To the extent that the Fifth Circuit continues to

disregard this Court’s repeated admonishments about

the particular importance of defining clearly established law at a high level of specificity when analyzing split-second decisions in excessive force cases90 and

continues to issue contradictory and unpredictable

opinions in this area, judges, law enforcement officers,

and citizens alike are left uncertain about constitutionally appropriate reactions, and officers are motivated

to act with hesitancy and timidity. This neither follows

this Court’s guidance nor furthers the important

public purposes qualified immunity serves. The Court

should take this opportunity to repair the confusion

created by the Fifth Circuit’s “deeply indeterminate

corpus of circuit precedent.”91

---------------------------------♦---------------------------------

CONCLUSION

The Court should grant this petition to address

the significant federal question of whether, and if so, to

what extent, opinions from circuit courts of appeals

can clearly establish law for the purpose of qualified

immunity analysis.

Given the nature of excessive force analysis,

which is not capable of precise definition, the special

dissenting, joined by Smith, Ho, Duncan, Oldham, JJ., and Owen

[now Richman], C.J.) (citation omitted in original).

E.g., Mullenix, 577 U.S. at 12-13; Brosseau, 543 U.S. at

198.

Pet. App. 23.

considerations at play in split-second use-of-force cases

arising in a correctional setting, and the inconsistency

of circuit courts’ decisions in cases involving officers’

split-second decisions about using force, this Court

should hold that circuit court precedent alone does not

create clearly established law for the purposes of qualified immunity in this area.

Finally, the Court should grant this petition to

address the Fifth Circuit’s inconsistent and deeply indeterminate precedent regarding entitlement to qualified immunity for split-second use-of-force decisions

because the status quo: (1) discourages vigorous law

enforcement responses in support of community and

officer safety; and (2) creates uncertainty for judges,

officers, and citizens throughout the Circuit.

Respectfully submitted,

THOMAS P. BRANDT

Counsel of Record

LAURA O’LEARY

JOHN F. ROEHM, III

FANNING, HARPER, MARTINSON, BRANDT & KUTCHIN, P.C.

8140 Walnut Hill Lane, Suite 200

Dallas, Texas 75231

(214) 860-0324

tbrandt@fhmbk.com

Attorneys for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.