Opposition Brief — Christopher Thomas, Petitioner v. Tracy Pachote

No. 24-1124

IN THE

Supreme Court of the United States

CHRISTOPHER THOMAS,

Petitioner,

v.

TRACY PACHOTE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF A PPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

PATRICK BUELNA

MATTHEW NORMAN

POINTER & BUELNA, LLP –

LAWYERS FOR THE PEOPLE

155 Filbert Street,

Suite 208

Oakland, CA 94607

(510) 929-5400

pbuelna@lawyersftp.com

AYANA CURRY

Counsel of Record

BURRIS, NISENBAUM, CURRY

AND LACY, LLP

7677 Oakport Street,

Suite 1120

Oakland, CA 94621

(510) 839-5200

ayana.curry@bncllaw.com

Attorneys for Respondent

Tracy Pachote

131336

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

This petition frivolously poses a long-resolved question

of Fourth Amendment law regarding whether a reasonable

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committed no crimes, has presented no threat and is

merely standing in their doorway vociferously demanding

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The questions presented are:

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use force (including entering her home, throwing

her to the ground and driving a knee into her

back causing a tear in her meniscus) against a

person not suspected of any crimes because the

person stood in her house, verbally demanded

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cussed at them.

2.

Whether clearly established law gave Defendant

Thomas fair warning that using force against

a person not suspected of any crimes and

presenting no threat because the person stood

in her home, cussed at officers and verbally

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home violated the Fourth Amendment.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner, who was Defendant/Appellant below, is

Deputy Christopher Thomas, who is sued in his personal

capacity.

Respondent, who was Plaintiff/Appellee below, is a

private individual, Tracy Pachote.

iii

TABLE OF CONTENTS

Page

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

PA RTIES TO THE PROCEEDING A ND

RULE 29.6 STATEMENT. . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iv

I.

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . .1

A. Ms. Pachote’s Call for Service . . . . . . . . . . . .1

B. Ms. Pachote’s Interaction with Deputy

Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

C. Defendant Thomas Arrests Ms. Pachote

for Battery And Interfering with

Defendant Nelson’s Investigation . . . . . . . . .2

D. Aftermath . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

II. REASONS FOR DENYING PETITION

FOR WRIT OF CERTIORARI . . . . . . . . . . . . . .6

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . .11

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Blankenhorn v. City of Orange,

485 F.3d 463 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . .9

City of Houston, Texas v. Hill,

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

Duran v. City of Douglas,

904 F.2d 1372 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . .6

Florida v. Bostick,

501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Fontana v. Haskin,

262 F.3d 871 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . .9

Gravelet-Blondin v. Sheltin,

728 F.3d 1086 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . .9

Hansen v. Black,

885 F.2d 642 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . .9

McDowell v. Rogers,

863 F.2d 1302 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . .9

Mena v. Massie,

 )HG$SS[ WK&LU . . . . . . . . . . . . . . .10

Meredith v. Erath,

342 F.3d 1057 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . .9

v

Cited Authorities

Page

P.B. v. Koch,

96 F.3d 1298 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . .10

Rice v. Morehouse,

989 F.3d 1112 (9th Cir. 2021). . . . . . . . . . . . . . . . . . . . .7

Wilkins v. Gaddy,

559 U.S. 34 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Constitutional Provisions and Statutes

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Cal. Pen. Code § 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

1

I.

STATEMENT OF FACTS

A.

Ms. Pachote’s Call for Service

On May 28, 2020, at around 1:30 AM, Plaintiff Tracy

Pachote heard gunshots in her neighborhood. 4 ER-703.

Out of concern for herself and her autistic minor son, she

FDOOHG DQG UHSRUWHG WKH JXQÀUH WR SROLFH Id. Although

Ms. Pachote stated deputies could contact her “if they

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knock. 5 ER-712; 4 ER-703.

About twenty minutes later, Contra Costa County

Sheriff’s Deputies Stephanie Nelson and Christopher

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the area. 5 ER-716. They knew that Ms. Pachote was a

reporting party. Id.

Defendant Nelson decided to approach Ms. Pachote’s

door and knock to ask her questions. 5 ER-736. Ms.

Pachote was familiar with Defendant Nelson because they

had a verbal argument a few months prior and did not like

each other. 4 ER-706-7.

B. Ms. Pachote’s Interaction with Deputy Nelson

Ms. Pachote heard pounding on her door, opened

the door and saw that Defendant Nelson had broken her

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at 703-5. Ms. Pachote asked why Defendant Nelson was

at her door and Defendant Nelson loudly replied that Ms.

Pachote had called the police. Id. at 704. Ms. Pachote

asked, “Can you say that any louder?” Id. Ms. Pachote

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2

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ULVNWRKHUDQGVKHH[SHFWHGWKHPWREHGLVFUHWHId.

Subsequently, Ms. Pachote demanded that Defendant

Nelson leave and she did not want to talk to her. Id. at 707.

Ms. Pachote repeatedly screamed for Defendant Nelson to

leave, but Defendant Nelson refused to leave her porch. Id.

During this interaction, Defendant Thomas was

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demanding Defendant Nelson to leave from her porch. 5

ER-806-8. Defendant Thomas could also hear Defendant

Nelson replying to Ms. Pachote. Id.

Defendant Thomas walked over and continued to

hear Defendant Nelson and Ms. Pachote arguing and Ms.

Pachote demanding for Defendant Nelson to leave. Id. at

812. Defendant Thomas could see that Defendant Nelson

and Ms. Pachote were about three feet from one another.

5 ER-791.

C.

Defendant Thomas Arrests Ms. Pachote for

Battery And Interfering with Defendant

Nelson’s Investigation

Defendant Thomas watched and heard them interacting

for 30 seconds before he claimed to see Ms. Pachote

push Defendant Nelson. 5 ER 792-3. Defendant Thomas

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observed, leading to his decision to arrest Ms. Pachote:

“I turned around and observed Deputy Nelson

speaking to a very agitated and belligerent

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3

&W,WDSSHDUHGWKHVXEMHFWZDVVFUHDPLQJDW

Deputy Nelson to leave her residence. I began

walking toward Deputy Nelson as it appeared

the resident was becoming increasingly

belligerent as their conversation went on. As I

approached the front of 1216 Trigger Ct. I saw

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Tracy Pachote, push Deputy Nelson with both

hands, knocking Deputy Nelson off balance and

causing her to stumble back.

I arrived at the front door of the residence

and attempted to grab Pachote’s right arm

as Pachote was continuing to push Deputy

Nelson and scream at her. Deputy Nelson

and I determined that Pachote needed to be

detained in handcuffs as her increasingly

belligerent physical behavior was a threat to

our safety in the course of our investigation.

Deputy Nelson and I began giving Pachote

commands to stop resisting and give us her

hands. Pachote ignored our multiple commands

and began pulling away from us. I attempted

to place Pachote’s right arm in a control hold

however Pachote began tensing her arm and

pulling away from me. Despite giving Pachote

additional commands to stop resisting, Pachote

began trying to run back into her residence, in

the process she began pulling Deputy Nelson

and I into her residence. As Pachote did

this, Pachote grabbed both mine and Deputy

Nelson’s uniforms, pulling and twisting them

in multiple directions. This caused Deputy

Nelson’s uniform to rip, losing a top button, and

4

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attempting to gain control of Pachote, Deputy

Nelson and I were able to pull Pachote to the

ground.”

5 ER-834-5—Defendant Thomas Report.

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arrest’s alleged factual basis and the charges:

“Given Pachote’s actions, using unlawful and

unwarranted force on Deputy Nelson, delaying

Deputy Nelson in the course of her investigation

regarding a possible shooting, I believed

Pachote to be in violation of PC 243b—battery

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under arrest for the aforementioned charges.”

Id. at 835.

0V3DFKRWHWHVWLÀHGWKDWVKHnever pushed or even

touched Defendant Nelson. 4 ER-704. Instead, Ms. Pachote

testified that Defendant Nelson deliberately stepped

forward and pressed herself against Ms. Pachote’s arm,

laughed and told Ms. Pachote she was under arrest for

DVVDXOWLQJDSROLFHRIÀFHUId. at 704.

Defendant Nelson proceeded to grab Ms. Pachote by

her hair and was tugging Ms. Pachote out of the house

by her hair. Id. Defendant Thomas, who had already been

approaching, entered into Ms. Pachote’s house and pushed

her out. Id. at 704-705.

5

Defendant Thomas—who is 6’3” and 240 pounds—

wrote in his police report that he pulled Ms. Pachote to

the ground intentionally. Id. DW0V3DFKRWHWHVWLÀHG

that Defendant Thomas and Defendant Nelson drove their

knees into her back when they pulled her to the ground,

causing her meniscus to tear. Id. at 704-5; 707-8.

D.

Aftermath

Ms. Pachote cried and called out for someone to care

for her minor autistic son, who curled up in a ball on the

couch Id. at 706. Fortunately, a neighbor was able to care

for him until his father arrived. Id.

Minutes after Ms. Pachote was arrested, Defendant

Thomas alerted dispatch that Ms. Pachote had committed

a Cal. Pen. Code § 415 violation for disturbing the peace—

no mention of battery or resisting arrest. 5 ER-798; 902.

In essence, Defendant Thomas had arrested and used

force on Ms. Pachote for screaming and cussing at his

partner from her front door—not for making threats or

pushing her.

Afterwards, Defendant Thomas discussed the incident

with his partner and, an hour and a half later, Defendant

Thomas fraudulently changed the crime to a battery on

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After Ms. Pachote was arrested, Defendant Thomas

was the main person responsible for the report writing. 5

ER-815–816. Even though there were multiple neighbors

outside, Defendant Thomas did not interview the neighbors

or request video evidence from them—and no one else

interviewed the witnesses. 5 ER-815–816; 818–819.

6

II. REASONS FOR DENYING PETITION FOR WRIT

OF CERTIORARI

There is no shortage of case law that provided notice

to Defendant Thomas that ripping a woman out of her

house, pulling her to the ground and driving his knee into

her back with such force to cause a meniscus tear merely

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force. See Florida v. Bostick, 501 U.S. 429, 437 (1991) (the

Supreme Court has “consistently held that a refusal to

cooperate, without more, does not furnish the minimal

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seizure.”); see also Duran v. City of Douglas, 904 F.2d 1372

(9th Cir. 1990) (“Thus, while police, no less than anyone

else, may resent having obscene words and gestures

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power at their disposal to punish individuals for conduct

that is not merely lawful, but protected by the First

Amendment.”); City of Houston, Texas v. Hill, 482 U.S.

451, 462-63 (1987) (“[t]he freedom of individuals verbally to

oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we

distinguish a free nation from a police state.”).

On appeal, Defendant Thomas has tried to re-frame

himself as a late-arriving officer, who was unable to

make an independent decision to make the arrest, but

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him. Defendant Thomas not only had the opportunity to

independently evaluate the situation, but he actually did

so per his own police report:

7

“As I approached the front of 1216 Trigger Ct.

I saw WKH IHPDOH UHVLGHQW ODWHU LGHQWLÀHG DV

ARR-Tracy Pachote, push Deputy Nelson

with both hands, knocking Deputy Nelson off

balance and causing her to stumble back.

. . . Given Pachote’s actions, using unlawful

and unwarranted force on Deputy Nelson,

delaying Deputy Nelson in the course of her

investigation regarding a possible shooting,

I believed Pachote to be in violation of PC

243b—battery on a peace officer and PC

148(a)(1)—obstructing and delaying a peace

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aforementioned charges.”

5 ER-834-5—Thomas Report. (emphasis added).

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correctly concluded that Defendant Thomas not only

had the opportunity but, taking the facts in the light

most favorable to Plaintiff, did independently evaluate

WKHVLWXDWLRQDQGXVHGH[FHVVLYHIRUFHSee Ninth Circuit

Memorandum at page 5: (“Rather, Thomas had “a duty to

independently evaluate [the] situation when [he] arrive[d],

if [he had] an opportunity to do so.” Rice v. Morehouse,

989 F.3d 1112, 1122 (9th Cir. 2021). Viewing the facts in

the light most favorable to Plaintiff, Thomas did have

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Thomas knew that Pachote had neither committed a

crime nor posed a threat, and that Thomas’s non-trivial

use of force in pulling Pachote to the ground, dragging

her, and placing his knee on her back, causing her to tear

KHUPHQLVFXVZDVWKHUHIRUHH[FHVVLYHµ

8

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Defendant Nelson. Taking the facts in the light most

favorable to Plaintiff, the Court must take this dispute

of fact in Plaintiff’s favor and consider that Plaintiff

never pushed Defendant Nelson. As such, the basis for

Defendant Thomas’s force is absent and his use of force

LVH[FHVVLYH

But whether or not Ms. Pachote pushed Defendant

Nelson, Defendant Thomas admitted he was watching

their interaction prior to and during Defendant Nelson’s

use of force. Therefore, Defendant Thomas’s own

testimony precludes his argument that he was a late

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Deputy Nelson to leave her residence. [He] began walking

toward Deputy Nelson as it appeared the resident was

becoming increasingly belligerent as their conversation

went on. As [he] approached the front of 1216 Trigger

&W>KH@VDZWKHIHPDOHUHVLGHQWODWHULGHQWLÀHGDV$55

Tracy Pachote, push Deputy Nelson with both hands,

knocking Deputy Nelson off balance and causing her to

stumble back.” 5 ER-834-5—Deputy Thomas Report.

Defendant Thomas could not have been a late arriving

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Defendant Nelson, and could hear the substance of their

conversation, as he approached Ms. Pachote’s home—

before any force was used.

Moreover, Plaintiff had every right to demand that the

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not suspect her of any crimes; she made no verbal threats

and merely used profanities. Ms. Pachote was no threat to

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9

KHUEDFNZDVFOHDUO\H[FHVVLYH See Gravelet-Blondin v.

Sheltin, 728 F.3d 1086, at 1094 (9th Cir. 2013) (holding that

“the use of non-trivial force of any kind was unreasonable”

against a suspect “engaged in no behavior that could have

been perceived . . . as threatening or resisting”); Meredith

v. Erath, 342 F.3d 1057, at 1061 (9th Cir. 2003) (holding as

clearly established that throwing a suspect to the ground

DQG WZLVWLQJ KHU DUPV ZDV H[FHVVLYH ZKHQ WKH VXVSHFW

“did not pose a safety risk” and “the need for force, if

any, was minimal at best.”); Hansen v. Black, 885 F.2d

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as they handcuffed her.”).

Notably, Defendant Thomas’s argument that he

used de minimis force is contradicted by the takedown

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with, Wilkins v. Gaddy86DW ´,QMXU\DQGIRUFH

. . . are only imperfectly correlated, and it is the latter that

ultimately counts); Bryan, 630 F.3d at 824 (“We have held

that force can be unreasonable even without physical blows

RULQMXULHVµ  McDowell v. Rogers, 863 F.2d 1302, 1307 (6th

Cir. 1988) (“we do not believe that a serious or permanent

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Nonetheless, even de minimis force is unconstitutional

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Plaintiff is nonthreatening, suspected of no criminal

activity and merely cussing at officers to leave her

property. See Fontana v. Haskin, 262 F.3d 871, 880

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show that there is no need for force, any force used is

constitutionally unreasonable); Blankenhorn v. City of

Orange, 485 F.3d 463, 481 (9th Cir. 2007) (holding it clearly

10

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need for force”); P.B. v. Koch, 96 F.3d 1298, 1303 f.4 (9th

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Defendant’s citation to Kisela v. Hughes and White

v. Pauly are utterly inapposite. Kisela and White discuss

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force against an armed suspect. There are dozens and

dozens of cases, wherein Plaintiff has cited a great many

of them, that provide notice that Defendant Thomas’s

uses of force (to tear a woman from her house, throw her

to the ground and drive his knee into her back, causing a

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ZDVH[FHVVLYHXQGHUORQJVWDQGLQJFOHDUO\HVWDEOLVKHGODZ

See, e.g., Mena v. Massie  )HG$SS[   WK

Cir. 2020) (by 2016, it was clearly established law that “it

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likely to cause more than de minimis amounts of pain and

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misdemeanor and the arrestee (1) was not a threat to the

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resist (or at most passively resisted) being handcuffed, and

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force before it was applied.”) (collecting cases).

11

III. CONCLUSION

For the foregoing reasons, the Court should deny

Petitioner’s Writ of Certiorari.

Date: July 3, 2025

Respectfully submitted,

PATRICK BUELNA

MATTHEW NORMAN

POINTER & BUELNA, LLP –

LAWYERS FOR THE PEOPLE

155 Filbert Street,

Suite 208

Oakland, CA 94607

(510) 929-5400

pbuelna@lawyersftp.com

Attorneys for Respondent

Tracy Pachote

AYANA CURRY

Counsel of Record

BURRIS, NISENBAUM, CURRY

AND LACY, LLP

7677 Oakport Street,

Suite 1120

Oakland, CA 94621

(510) 839-5200

ayana.curry@bncllaw.com