Reply Brief — Michael Donnellon, Deputy, et al., Petitioners v. John Jordan

No. 23-541

In the

Supreme Court of the United States

__________________

DEPUTY CHAD JENKINS AND

DEPUTY MICHAEL DONNELLON,

Petitioners,

v.

JOHN JORDAN,

__________________

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

__________________

REPLY BRIEF FOR PETITIONERS

__________________

MICHAEL A. SINK

Assistant County Attorney

Counsel of Record

KERRI A. BOOTH

Assistant County Attorney

HEIDI M. MILLER

County Attorney

ADAMS COUNTY ATTORNEY’S OFFICE

4430 S. Adams County Parkway

Suite C5000B

Brighton, CO 80601-8206

(720) 523-6116

MSink@adcogov.org

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

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

REPLY BRIEF .............................................................1

I.

The Decision Below Is Wrong ...........................2

II.

The Questions Presented Are Critically

Important And Warrant Review In The

Absence Of A Circuit Split................................8

III.

This Case Presents A Clean Vehicle ................9

IV.

The Questions Presented Do Not Fairly

Include The Subsidiary Issue Identified By

Jordan..............................................................10

CONCLUSION ..........................................................13

ii

TABLE OF AUTHORITIES

Cases

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ..........................................4, 8, 9

Bones v. Honeywell Int’l, Inc.,

366 F.3d 869 (10th Cir. 2004) ..............................7, 8

Chapman v. Houston Welfare Rights Org.,

441 U.S. 600 (1979) ................................................11

City & Cty. of S.F. v. Sheehan,

575 U.S. 600 (2015) ..................................................8

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) ............................................6, 8

City of Houston v. Hill,

482 U.S. 451 (1987) .................................. 1, 2, 3, 4, 7

City of Tahlequah v. Bond,

142 S. Ct. 9 (2021) ....................................................4

Crawford-El v. Britton,

523 U.S. 574 (1998) ..................................................8

Davis v. Scherer,

468 U.S. 183 (1984) ..................................................4

District of Columbia v. Wesby,

583 U.S. 48 (2018) ....................................................8

Elder v. Holloway,

510 U.S. 510 (1994) ..................................................4

Guffey v. Wyatt,

18 F.3d 869 (10th Cir. 1999) ....................................4

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ..................................................8

iii

Helvie v. Jenkins,

66 F.4th 1227 (10th Cir. 2023)...............................10

Higgins v. Martin Marietta Corp.,

752 F.2d 492 (10th Cir. 1985) ..................................8

Hinton v. City of Elwood,

997 F.2d 774 (10th Cir. 1993) ..................................6

Kolender v. Lawson,

461 U.S. 352 (1983) ..................................................3

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ..................................................7

Maryland v. Pringle,

540 U.S. 366 (2003) ..............................................1, 7

Michigan v. DeFillippo,

443 U.S. 31 (1979) ....................................................2

Mocek v. City of Albuquerque,

813 F.3d 912 (10th Cir. 2015) ..............................3, 7

Pearson v. Callahan,

555 U.S. 223 (2009) ..................................................3

Pennsylvania Dep’t of Corrections v. Yeskey,

524 U.S. 206 (1998) ................................................12

Plumhoff v. Rickard,

572 U.S. 765 (2014) ..................................................3

Rogers v. Jarrett,

63 F.4th 971 (5th Cir. 2023)...................................10

Scott v. Harris,

550 U.S. 372 (2007) ..............................................7, 9

Siegert v. Gilley,

500 U.S. 226 (1991) ................................................12

iv

Stanton v. Sims,

571 U.S. 3 (2013) ......................................................3

United States v. Lanier,

520 U.S. 259 (1997) ..........................................11, 12

United States v. Sischo,

262 U.S. 165 (1923) ................................................11

Villarreal v. City of Laredo,

No. 20-40359, 2024 U.S. App. LEXIS 1533

(5th Cir. Jan. 23, 2024) .......................................... 11

Rules

Sup. Ct. R. 14.1(a)...................................................... 10

Other Authorities

William Baude, Codifiers’ Errors and 42 U.S.C.

§ 1983, VOLOKH CONSPIRACY (June 12, 2023),

https://reason.com/volokh/ 2023/06/12/codiferserrors-and-42-u-s-c-1983/) ...................................... 11

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 CAL. L. REV. 201

(2023) ...................................................................... 10

1

REPLY BRIEF

Respondent does not seriously contest the

central legal issues presented by the petition. He does

not argue City of Houston v. Hill, 482 U.S. 451 (1987),

somehow categorically bars the existence of arguable

probable cause to arrest a bystander who both loudly

interferes in an ongoing traffic investigation and fails

to disperse in response to a lawful order. He does not

challenge that Maryland v. Pringle, 540 U.S. 366

(2003), requires courts to look at historical facts

judged from the point of view of a reasonable officer,

rather than looking to theoretical surmises of the

plaintiff regarding the officer’s intent. And Jordan

offers no warrant for the Tenth Circuit’s decision to

rely on cases and arguments he did not advance before

the district court.

Instead, most of Jordan’s response is aimed at

trying to gin up factual problems. He then attempts to

use them to justify the Tenth Circuit’s otherwise

cursory handling of Hill’s critical footnote 11, as well

as create a factual fog around the officers’ initial use

of force. But the record – brief and clear as it is – won’t

allow it. The district court relied not only on the same

audio, but almost exclusively on Jordan’s own

evidence. As for the Tenth Circuit’s supposed

“intensely fact-bound application of well-established

legal standards,” BIO.6, it is no application at all. The

Tenth Circuit’s repeated declarations of the existence

of factual disputes are at once non-specific and

irrelevant because they do not undercut the facts upon

which the district court relied. Neither the Tenth

Circuit nor Jordan explain how the partial audio

recording, which contradicts no facts relied upon by

2

the district court, nevertheless warrants reversal of

that court’s grant of qualified immunity. Indeed, the

Tenth Circuit assumed Jordan’s conduct fell within

the ambit of the obstruction statute and Jordan did

not argue otherwise. Pet.App.7, n.2. Rather, the Tenth

Circuit simply adopted Jordan’s unsubstantiated

argumentative theory about the officers’ hidden

motives to cut a swathe through both the case law and

the record.

This case thus presents an ideal opportunity to

clarify the Court’s standard as to what constitutes

clearly established law. As for Jordan’s subsidiary

issue, it is premature and unnecessary to address it in

this case.

I.

The Decision Below Is Wrong

Jordan’s response makes little effort to

demonstrate the law, as interpreted and applied by

the Tenth Circuit, was in fact “well-established.”

BIO.6. Here, there was no argument Jordan’s conduct

fell outside the ambit of Colorado’s obstruction

statute. Pet.App.7, n.2. Nevertheless, the Tenth

Circuit turned Hill – a First Amendment decision that

turned on the parties’ stipulations as to the limited

scope the municipal ordinance at issue, 482 U.S. at

461-612, ns. 9 &10 – into an absolute bar to the

existence of probable cause under Colorado’s

obstruction statute, even though that statute has

never similarly been declared unconstitutional. See

Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) (“Police

are charged to enforce laws until and unless they are

declared unconstitutional. The enactment of a law

forecloses speculation by enforcement officers

concerning its constitutionality—with the possible

3

exception of a law so grossly and flagrantly

unconstitutional that any person of reasonable

prudence would be bound to see its flaws.”).

The court did this even though Hill itself

expressly noted that conduct, such as a person

standing “near a police officer and persistently

attempt to engage the officer in conversation while the

officer is directing traffic at a busy intersection,”

“might constitutionally be punished under a properly

tailored statute, such as a disorderly conduct statute

that makes it unlawful to fail to disperse in response

to a valid police order or to create a traffic hazard.” 482

U.S. at 462, n.11. Thus, on its face, Hill’s applicability

was not “sufficiently definite that any reasonable

official in the defendant’s shoes would have

understood that he was violating” any rights created

by it. Plumhoff v. Rickard, 572 U.S. 765, 774 (2014).

The Tenth Circuit’s application of Hill to this

case is plainly contrary to this Court’s repeated

admonitions against relying on factbound or qualified

precedent when assessing whether the law is clearly

established See, e.g., Pearson v. Callahan, 555 U.S.

223, 237 (2009); Stanton v. Sims, 571 U.S. 3, 7-8

(2013). Nor was the Tenth Circuit’s cross-doctrinal

application of Hill consistent with the court’s own

prior decisions. See Mocek v. City of Albuquerque, 813

F.3d 912, 927 (10th Cir. 2015) (finding this Court’s

Fourteenth Amendment decision in Kolender v.

Lawson, 461 U.S. 352 (1983) was “not on point because

it nowhere considered a Fourth Amendment claim”).

Jordan only minimally addresses whether Hill

can clearly establish the law in a Fourth Amendment

excessive force case. Jordan does not address this

4

Court’s decisions in Davis v. Scherer, 468 U.S. 183, 197

(1984) or Elder v. Holloway, 510 U.S. 510, 512 (1994),

even though the Tenth Circuit construed the latter in

derogation of the former. Nor does he offer a

justification of the Tenth Circuit’s reading of Guffey v.

Wyatt, 18 F.3d 869 (10th Cir. 1999), a case that does

not remotely close the gap the Tenth Circuit claims it

does. Here, the Tenth Circuit, not unlike the Ninth

Circuit in Ashcroft v. al-Kidd, “seems to have cherrypicked the aspects of [its own] opinions that gave

colorable support to the proposition that the

unconstitutionality of the action here was clearly

established.” 563 U.S. 731, 743 (2011); see also City of

Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021).

Jordan’s defense of the Tenth Circuit is limited

to reiterating the court’s acknowledgment of the

existence of footnote 11 in Hill, coupled with the

court’s repeated statements about non-specific factual

disputes. BIO.6 & n. 4; 10. As was the case with the

Tenth Circuit, Jordan’s response makes no attempt to

demonstrate how the audio recording contradicts the

relevant facts that were undisputed below, most of

which were supported by Jordan’s own deposition

testimony, his own declaration, and his own

stipulations at summary judgment. For example, the

audio, which contains only a portion of the interaction

between the officers and Jordan, 1 does not and cannot

contradict the following facts:

1 Jordan asserts the audio “preserves the dispute between

Jordan and the officers” and cites the district court’s statement

that the audio “accurately reflects the content of the encounter[.]”

BIO.1, n.1; quoting Pet.App. 27, n.2. The district court’s footnote,

however, makes clear this statement was about the accuracy of

5

•

Officer Donnellon attempted to interview

witnesses on scene and was impeded by

Jordan’s shouting. C.A.App.63 (Officer

Jenkins’ written report); 67 ¶¶ 2-3 (Jordan’s

partial dispute of the report); Pet.App.43-45

(addressing the degree of evidentiary

dispute).

•

Jordan shouted instructions regarding the

questioning of multiple witnesses on the

scene, not just his nephew. C.A.App.77-78

(audio at 2:36 to 2:54 & 3:56 to 4:00 in which

Jordan references “witnesses” and what

“they’re saying” and “their statements”). 2

•

Officer Jenkins ordered Jordan to leave the

scene, but Jordan did not comply and

verbally refused to leave. C.A.App.56

(Jordan deposition); 74, ¶23 (stipulation);

78-79 (audio at 4:03 to 4:11).

the transcription of the audio. No conclusion was drawn by the

district court as to the comprehensiveness of the audio recording.

To the contrary, in his declaration Jordan acknowledged he did

not begin recording immediately. C.A.App.95, ¶4 (began

recording 3 to 5 minutes after arrival).

2 Jordan appears to attempt to create doubt over whether

witnesses other than his nephew were present at the scene.

BIO.8 & n.5. If so, this is inconsistent with, among other things,

his own recorded statements. Jordan is also incorrect that the

officers did not distinguish on appeal between interviewing

Jordan’s nephew and other witnesses. The district court drew

this distinction when it discussed the officers’ ability to conduct

their “interviews.” Pet.App.43-44. The officers did likewise in

their brief, Resp. Br. 2 & 13, and then pressed it at oral argument.

Oral Arg. at 23:45-25:24, https://www.ca10.uscourts.gov/sites/

ca10/files/oralarguments/22-1154.mp3.

6

•

Officer Jenkins ordered Jordan multiple

times to put his hands behind his back, the

first of which Jordan asserts he did not hear

and therefore did not obey. C.A.App.68, ¶5;

74, ¶¶23-24 (stipulations); 79 (audio at 4:11

to 4:49).

•

The first order to Jordan to place his hands

behind his back came before the first

“[sounds of scuffle]” on the audio. C.A.App.

79 (audio at 4:11 to 4:16).

•

Jordan conceded he heard the second order

to put his hands behind his back and still did

not immediately comply. C.A.App.56

(Jordan deposition testimony that he “kind

of turned” in response to second order); 96,

¶7 (Jordan’s declaration indicating he “could

not comply” with an order when he was

holding his phone to his ear).

•

At or after the second order, Officer Jenkins

“grabbed [Jordan’s] arm,” which Jordan

attempted to avoid. C.A.App.68-69, ¶¶5-6

(stipulations); 96, ¶ (Jordan’s declaration

that Officer Jenkins “was trying to knock

the phone out of my hand and I was trying

to put the phone in my left-hand shirt

pocket”).

Other details were disputed at the district court. But

these were not. They were sufficient, moreover, to

grant the officers qualified immunity based on the law

as it then existed. See City of Escondido v. Emmons,

139 S. Ct. 500, 502 & 503 (2019); Hinton v. City of

Elwood, 997 F.2d 774, 781 (10th Cir. 1993); see also

7

Mocek, 813 F.3d 912, 924 (10th Cir. 2015) (“[T]he

information available to [the officer] indicated that

[the plaintiff] had distracted multiple TSA agents,

persistently disobeyed their orders, already caused a

‘disturbance’ (according to the agents on the scene),

and potentially threatened security procedures at a

location where order was paramount. Under these

circumstances, a reasonable officer would have had

reason to believe, or at least investigate further, that

[plaintiff] had committed … disorderly conduct.”).

Instead of squarely addressing these facts and

lining them up against footnote 11 in Hill, the Tenth

Circuit simply adopted what Jordan repeatedly called

his “theory of the case,” C.A.App.86; Op. Br. 4, 14; 17

n.7; Reply Br. 4, 10 – namely his subjective view of the

officer’s unexpressed motives. Based on this theory,

the Tenth Circuit concluded Hill’s footnote did not

apply because the audio did not contradict Jordan’s

version of events, which was that the officers arrested

him for “merely criticizing” them. Pet.App.10 & 18,

n.7. In doing this, the Tenth Circuit not only

transgressed the limits of Scott v. Harris, 550 U.S.

372, 380 (2007), see Part III, below, but it nullified the

standard in Pringle. Pringle requires courts to look at

objective historical facts judged from the point of view

of a reasonable officer. 540 U.S. 366 (2003).

Under the Tenth Circuit’s approach here, a

plaintiff’s theory of a case regarding an officer’s motive

now trumps undisputed evidence in qualified

immunity cases unless the theory is contradicted by

an audio recording. But theories of a case are not

evidence. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888 (1990); see also Bones v. Honeywell Int’l, Inc.,

8

366 F.3d 869, 875 (10th Cir. 2004); Higgins v. Martin

Marietta Corp., 752 F.2d 492, 496 (10th Cir. 1985).

Even if there had been evidence of the officers’ intent,

that intent is irrelevant to the affirmative defense of

qualified immunity. Crawford-El v. Britton, 523 U.S.

574, 588 (1998) (“[A] defense of qualified immunity

may not be rebutted by evidence that the defendant’s

conduct was malicious or otherwise improperly

motivated. Evidence concerning the defendant’s

subjective intent is simply irrelevant to that

defense.”). This Court should grant review and reverse

the Tenth Circuit’s contrary judgment.

II.

The Questions Presented Are Critically

Important And Warrant Review In The

Absence Of A Circuit Split

The issue of qualified immunity is one of the

exceptional circumstances where the Court will grant

review merely to reverse an erroneous decision of a

court of appeals. “Because of the importance of

qualified immunity ‘to society as a whole,’ the Court

often corrects lower courts when they wrongly subject

individual officers to liability.” City & Cty. of S.F. v.

Sheehan, 575 U.S. 600, 611 n.3 (2015) (emphasis

added) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

814 (1982)). There was, for example, no circuit split

indicated in the petitions granted in al-Kidd, No. 1098, 563 U.S. 731 (2011) or Emmons, No. 17-1660, 139

S. Ct. 500 (2019). Nor was it indicated on the issue of

whether the law was clearly established in the

petitions in Sheehan, No. 17-1660, 575 U.S. 600 (2015)

and Wesby, No. 15-1485, 583 U.S. 48 (2018).

Review is warranted, in part, because the

central legal issue – the existence of clearly

9

established applicable precedent – is impeded, not

advanced, by conflicts between the circuits. See alKidd, 563 U.S. 731, 742 (2011) (in the absence of

controlling authority, requiring a “robust consensus of

cases of persuasive authority”) (quotation omitted).

Moreover, the less precedent on point, the greater the

error of a court of appeals in reversing a grant of

qualified immunity.

III.

This Case Presents A Clean Vehicle

Jordan does not and cannot dispute the

questions presented are enormously consequential

and recur frequently. Indeed, the underlying issue of

how to construe clearly established law arises in every

case where the issue of qualified immunity is raised.

The Tenth Circuit’s rule, moreover, places officers in

an untenable position requiring them to guess at the

governing law with no redeeming policy benefit to

justify it. There is thus neither legal nor practical

warrant for the Tenth Circuit’s anomalous

interpretation of relevant precedent.

Nor is there any merit to Jordan’s efforts to

conjure up a vehicle problem. As explained, his

repeated refrain that the Tenth Circuit properly found

relevant disputed factual issues based on the audio

recording is demonstrably wrong. See Part I, above. In

Scott, 550 U.S. at 380, the Court held “[w]hen opposing

parties tell two different stories, one of which is

blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling

on a motion for summary judgment.” Here, however,

the audio recording is not only incomplete, it does not

10

contradict the undisputed facts put before the district

court.

The fact that the audio recording does not

capture other facts relied upon by the district court is

literally an argument from (incomplete) silence and

not a basis to undercut undisputed evidence. See

Helvie v. Jenkins, 66 F.4th 1227, 1236 (10th Cir. 2023)

(plaintiff’s statements “made both during his own

deposition and in a sworn affidavit that Deputy

Jenkins never said anything about the gun while the

deputy was pulling [the plaintiff] from his truck” is

“not sufficient to create a triable issue as to the

credibility of Deputy Jenkins’s incident report and

subsequent sworn testimony as to when he saw the

gun”). Again, Jordan’s “theory of the case” regarding

the officers’ motives is not evidence, nor is his

supposition supported by any. This case thus presents

an ideal vehicle to review the questions presented.

IV.

The Questions Presented Do Not Fairly

Include The Subsidiary Issue Identified

By Jordan

Pivoting, Jordan asserts the availability of

qualified immunity as an affirmative defense to

Section 1983 claims is a subsidiary issue to the

questions presented under Sup. Ct. R. 14.1(a). BIO.11.

He argues the text of Section 1983 passed by Congress

in 1871 expressly excluded state law immunities, such

as qualified immunity. BIO.12-14, relying on

Alexander A. Reinert, Qualified Immunity’s Flawed

Foundation, 111 CAL. L. REV. 201 (2023) and Rogers v.

Jarrett, 63 F.4th 971, 979-81 (5th Cir. 2023) (Willett,

J., concurring).

11

Jordan, however, omits that Judge Willett, in a

recent dissenting opinion acknowledged that “[n]ot all

scholars are convinced” by Professor Reinart’s

assessment. Villarreal v. City of Laredo, No. 20-40359,

2024 U.S. App. LEXIS 1533, *64 n.14 (5th Cir. Jan. 23,

2024) (Willett, J., dissenting) (citing William Baude,

Codifiers’ Errors and 42 U.S.C. § 1983, VOLOKH

CONSPIRACY (June 12, 2023), https://reason.com/volokh/

2023/06/12/codifers-errors-and-42-u-s-c-1983/). This is

in part because Section 1983 was reenacted in the

Revised Statutes of 1874 without the language at

issue. Villarreal, 2024 U.S. App. LEXIS 1533 at *64

n.14; cf. Chapman v. Houston Welfare Rights Org., 441

U.S. 600, 624 (1979) (Powell, J., concurring).

Thus,

even

setting

aside

Jordan’s

acknowledgment of a potential ambiguity in the

original statutory text, BIO.13, n.6, it is not at all clear

the original text prevails over the statute as

reenacted, albeit through a codification. See United

States v. Sischo, 262 U.S. 165, 168-169 (1923);

Villarreal, 2024 U.S. App. LEXIS 1533 at *64 n.14.

Far from being a “cat … now out of the bag,” BIO.14,

this is precisely the sort of scholarly exploration that

would benefit from greater percolation–both within

the academy and among circuit courts.

If the Court were inclined to reexamine a nearly

60-year-old line of cases based on such a slender and

newly sprouted reed, the Court would then have to

decide where to cut off its reexamination. The Court,

for example, would still need to determine whether

there are alternative constitutional grounds for a

functionally similar rule to the one derived from the

current statutory text. See United States v. Lanier,

12

520 U.S. 259, 270-71 (1997). Jordan offers no line of

demarcation. He merely posits his subsidiary issue is

“purely legal” and pertains to the validity of this

Court’s “prior precedent.” BIO.11&13. But that hardly

provides a meaningful cutoff.

By contrast, in Siegert v. Gilley, 500 U.S. 226,

232 (1991), the Court considered an issue not raised in

the questions presented – namely whether the

plaintiff had “asserted a violation of a constitutional

right at all” – because the new issue was a “necessary

concomitant” to the issue of whether the constitutional

right at issue was clearly established. Accord id. at

237, n.1 (Marshall, J., dissenting). That logical

necessity is not present here. The Court need only

address the questions set out in the petition. Any

underlying statutory or constitutional issues are best

reserved for cases where they are raised before the

court of appeals. See Pennsylvania Dep’t of Corrections

v. Yeskey, 524 U.S. 206, 212-13 (1998).

13

CONCLUSION

The petition should be granted.

Respectfully submitted.

Michael A. Sink

Assistant County Attorney

Counsel of Record

Kerri A. Booth

Assistant County Attorney

Heidi M. Miller

Adams County Attorney

4430 S. Adams County Parkway

Suite C5000B

Brighton, CO 80601-8206

(720) 523-6116

MSink@adcogov.org

March 22, 2024