Opposition Brief — Karen Jimerson, et al., Petitioners v. Mike Lewis

Supreme Court briefDec 11, 2024

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No. 24-473

IN THE

Supreme Court of the United States

KAREN JIMERSON, et al.,

Petitioners,

MIKE LEWIS,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

D. Randall Montgomery

Counsel of Record

D. RANDALL MONTGOMERY

& ASSOCIATES, PLLC

12400 Coit Road

Suite 560

Dallas, Texas 75251

(214) 292-2600

(469) 568-9323 (facsimile)

rmontgomery@drmlawyers.com

Counsel for Respondent Mike Lewis

QUESTION PRESENTED

Whether the Fifth Circuit correctly applied

Maryland v. Garrison in addressing the

reasonableness of Respondent Mike Lewis’ actions.

TABLE OF CONTENTS

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1

Factual Background . . . . . . . . . . . . . . . . . . . 1

II. Procedural History . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR DENYING THE WRIT . . . . . . . . . 4

The Fifth Circuit’s Holding is Consistent

with Maryland v. Garrison and Does Not

Create a Circuit Split. . . . . . . . . . . . . . . . . . . 4

II. The Fifth Circuit Did Not Hold that

Garrison Wasn’t Controlling Law. . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iii

TABLE OF AUTHORITIES

CASES

PAGES

Hartsfield v. Lemacks, 50 F.3d 950

(11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jimerson v. Lewis, 94 F.4th 423 (5th Cir. 2024). . . 3

Jimerson v. Lewis, No. 3:20-CV-2826-L-BH, 2021 WL

1561431, *1 n. 1 (N.D. Tex.—April 21, 2021) . . 2

Marks v. Hudson, 933 F.3d 481, 486

(5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Maryland v. Garrison 480 U.S. 79, 88

(1987) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 6, 7

Rogers v. Hooper, 271 F. App’x 431

(5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATUTES

42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Respondent, Mike Lewis, files this Brief in

Opposition to the Petition for a Writ of Certiorari

(“Petition”) and respectfully requests that this Court

deny the Petition.

STATEMENT OF THE CASE

Factual Background

At 7:15 p.m. in March 2019, Waxahachie Police

Department (“WPD”) SWAT Team Commander Mike

Lewis received a call from the DEA requesting

assistance executing a search warrant that night on a

suspected methamphetamine stash house located at

573 8th Street in Lancaster, Texas. Lewis requested

additional information, including pictures of the target

house, whether “the location was fortified,” whether “it

appeared to have surveillance equipment,” and

whether “there were any exterior indicators on the

property that children may be present.” Lewis also

received pictures showing the front of the target house

and was told there was “surveillance established at the

location.” Pet. App. 3a-4a.

After Lewis completed his WPD SWAT’s risk

analysis assessment worksheet and received approval

from the WPD Chief to activate the SWAT team, Lewis

gathered additional information on the target house

from the Dallas Central Appraisal District, including

that the house was 744 square feet, was built in 1952,

and had a “large, deeply extending backyard.” Pet.

App. 4a.

Lewis then briefed his SWAT officers, and the

group decided to have a six-member team enter the

target house with a three-member team entering the

detached garage and backyard. Lewis then received

“real-time intelligence that surveillance officers at the

scene reported a truck pulling a white box trailer [had]

pulled up in front of the target house.” This

information later proved inaccurate as the trailer was

sitting in front of 583 8th Street. Pet. App. 4a.

Lancaster Police Department Officer Zachary

Beauchamp1 then led the WPD SWAT team to the

target house followed by Lewis in his marked patrol

unit, then Waxahachie K-9, and several unmarked

DEA vehicles. Beauchamp was instructed “to stop

about a house before the target location, so SWAT

officers could make an approach on foot.” Pet. App.

4a-5a.

When they arrived to the area, Beauchamp

abruptly stopped his vehicle. As the officers exited

their vehicles, Beauchamp pointed to the house with

the truck and white trailer in front of it, and officers

began their approach. However, as the SWAT team

began to gather on the front porch, Lewis realized that

the house did not match the one in the intel photos.

Pet. App. 5a.

When Lewis looked one house to the left, he

decided the layout of the front of that house matched

the one in the intel photos. He also believed the front

of the house read “573,” though the porch light

obscured his view. Lewis told the SWAT team they

were at the wrong house and instructed them to “go to

the house just to the left of the house where they

were.” Unfortunately, this was also the incorrect

Petitioners initially sued Beauchamp but dismissed him

from the underlying suit after he filed a motion to dismiss. See

Jimerson v. Lewis, No. 3:20-CV-2826-L-BH, 2021 WL 1561431, *1

n. 1 (N.D. Tex.—April 21, 2021).

house; the house identified by Lewis was not “573” but

“593” – Petitioners’ house. Pet. App. 5a-6a.

SWAT officers ran to the front of Petitioner’s

house, deployed a flashbang, broke the front windows

and breached the door. After the officers began a

protective sweep and encountered the inhabitants,

SWAT team members yelled out “Wrong house!” and

the SWAT officers immediately left the Petitioners’

house and proceeded to the target house. Pet. App. 6a.

II. Procedural History

Petitioners brought suit under 42 U.S.C. § 1983

against Lewis and the other SWAT officers involved,

alleging a violation of the Fourth Amendment along

with several state law claims. After Lewis and the

officers moved for summary judgment based on the

affirmative defense of qualified immunity, the

magistrate judge recommended granting summary

judgment as to all defendants. The magistrate judge

also concluded that Petitioners failed to show that

Lewis did not make reasonable efforts to identify the

target house. The district court agreed with the

recommendation as to the other defendants and

granted dismissal. However, as to Lewis, the district

court found a genuine dispute of material fact as to

whether Lewis had made necessary reasonable efforts

to identify the target house under Maryland v.

Garrison, 480 U.S. 79, 88 (1987). Pet. App. 6a-7a.

Lewis appealed to the Fifth Circuit Court of

Appeals which reversed the district court’s summary

judgment order in a 2-1 published decision. Jimerson

v. Lewis, 94 F.4th 423 (5th Cir. 2024). The Fifth

Circuit’s analysis focused on the reasonableness of

Lewis’ actions and applied this Court’s, as well as its

own, precedent in determining whether Lewis’ actions

violated clearly established law. Pet. App. 9a-10a.

Specifically, the Fifth Circuit found that, while Lewis

had erred, he made significant efforts to identify the

correct residence. Pet. App. 13a. Further, the Fifth

Circuit stated, “Lewis was far more careful than the

officers in the two opinions cited to us [by Petitioners]

as showing he violated clearly established law.” Pet.

App. 14a.

Petitioners sought rehearing en banc, which was

denied as no member of the panel or judge in regular

active service requested that the court be polled on

rehearing en banc. Pet. App. 94a-95a.

REASONS FOR DENYING THE WRIT

Nothing in the Fifth Circuit’s disposition of this

case warrants review by this Court. As shown below,

the Fifth Circuit’s holding is consistent with this

Court’s decision in Maryland v. Garrison in addressing

the reasonableness of Lewis’ actions. There is no

circuit split on the precise holding of the Fifth Circuit.

The Fifth Circuit’s Holding is Consistent

with Maryland v. Garrison and Does Not

Create a Circuit Split.

Petitioners assert that the Fifth Circuit’s opinion

creates a circuit split as to whether Maryland v.

Garrison clearly established the law. Pet. 11. However,

the Fifth Circuit’s decision is consistent with this

Court’s opinion in Garrison.

In Garrison, this Court focused on whether “the

officers’ conduct was consistent with a reasonable

effort to ascertain and identify the place intended to be

searched within the meaning of the Fourth

Amendment.” Garrison, 480 U.S. at 88. The Fifth

Circuit followed this precedent in its own analysis

regarding Lewis:

The Supreme Court has held that officers must

make “reasonable effort[s] to ascertain and

identify the place intended to be searched” in

order to comply with the Fourth

Amendment….

We evaluate the reasonableness of Lewis’s

actions because the plaintiffs’ claims arise

under the Fourth Amendment.

Pet. App. 9a (quoting Garrison, 480 U.S. at 88). In

doing so, the Fifth Circuit found that while “Lewis

erred, …he made significant efforts to identify the

correct residence.” Pet. App. 13a. That is, Lewis:

(1) reviewed the search warrant; (2) conducted

additional searches on the target residence

through the Dallas Central Appraisal District

website; (3) ran a computerized criminal history

search of the occupant of the target residence; (4)

debriefed with DEA agents twice; (5) was

provided with “real-time intelligence that

surveillance officers at the scene reported a truck

pulling a white box trailer just pulled up in front

of the target location and stopped;” and (6)

observed the home and took note of the front

windows, driveway, and the numbers on the

front of the home in an attempt to confirm the

residence as being the target location.

Pet. App. 13a-14a.

Regarding Lewis’ efforts to ascertain and identify

the target house, the Fifth Circuit noted that “Lewis

was careful to confirm the house had the proper

arrangement and size of windows, but only later

became aware that those window features were shared

by the plaintiffs’ home.” Pet. App. 14a. Further, the

Fifth Circuit pointed out that “Lewis’ confusion was

compounded by misleading intelligence.” Id. When the

SWAT team arrived, the white box trailer was not

parked in front of the target house, which Lewis

realized but then erred in re-directing the officers. Id.

While Petitioners argue that Lewis is not entitled

to qualified immunity because he had “reason to know

he [was] executing a search warrant at the wrong

house” but did so anyway, Pet. 10-11, this assertion is

not supported by the record. As shown above, the Fifth

Circuit clearly outlined Lewis’ efforts to ascertain the

correct target house. Pet. App. 13a-14a. Nowhere in

the record does it reflect that Lewis knew he had the

wrong house but ordered entry anyway. Instead, the

record clearly reflects reasonable efforts undertaken by

Lewis in the limited time that he had to do so. See Pet.

App. 3a (“In March 2019, at approximately 7:15

p.m.. . .Lewis received a call from a Drug Enforcement

Administration (“DEA”) officer. The DEA officer

needed assistance executing a search warrant that

night….”.)(emphasis added).

Under Garrison, the question is simple – whether

Lewis made reasonable efforts to ascertain and

identify the target house for the search warrant.

Garrison, 480 U.S. at 88. This question was answered

in the affirmative by the Fifth Circuit. Pet. App.

13a-14a. While Petitioners take issue with the

outcome, there simply is no Circuit split. The Fifth

Circuit identified the principal reasoning of Garrison

and applied it to the facts of this case.

II. The Fifth Circuit Did Not Hold that Garrison

Wasn’t Controlling Law.

Petitioners further argue that this case presents a

“good vehicle” to determine whether Garrison clearly

established the law. Pet. 22-24. To be clear, the Fifth

Circuit did not hold that Garrison was not controlling

law. Instead, the Fifth Circuit stated that the two

cases cited by Petitioners, Rogers v. Hooper, 271 F.

App’x 431 (5th Cir. 2008), and Hartsfield v. Lemacks,

50 F.3d 950 (11th Cir. 1995), did not demonstrate that

Lewis’ conduct violated clearly established law. Pet.

App. 11a-14a. While the dissent argued that these two

cases constitute clearly established law, the majority

stated, “[e]ven if these two nonprecedential opinions

were indicative of clearly established law, they would

not support that Lewis violated that law. Lewis erred,

but he made significant efforts to identify the correct

residence.” Pet. App. 13a. The Fifth Circuit further

noted that “[a] nonprecedential opinion ‘cannot be the

source of clearly established law for qualified

immunity analysis.’” Pet. 11a, n.2 (quoting Marks v.

Hudson, 933 F.3d 481, 486 (5th Cir. 2019). In any

event, after the Fifth Circuit summarized Rogers and

Hartsfield, the court noted that Lewis was “far more

careful than the officers in the two opinions cited to us

as showing he violated clearly established law.” Pet.

App. 14a.

Petitioners claim that this case rises or falls on the

application of Maryland v. Garrison. Pet. 24. The

problem is – the Fifth Circuit did apply such case to its

analysis. Petitioners are just not happy with the

outcome.

CONCLUSION

For the reasons stated herein, a writ of certiorari

should be denied in this case.

Respectfully submitted,