Amicus Curiae Brief — Corey Cunningham, on Behalf of Kodi Gaines, a Minor, Petitioner v. Baltimore County, Maryland, et al.

No. 24-578

In the Supreme Court of the United States

_________________________

C OREY CUNNINGHAM, ON BEHALF OF

K ODI GAINES, A MINOR,

Petitioner,

v.

BALTIMORE C OUNTY, MARYLAND ;

C ORPORAL R OYCE RUBY,

Respondents.

_________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Maryland

_________________________

BRIEF FOR THE LAW ENFORCEMENT ACTION PARTNERSHIP

AS A MICUS CURIAE IN S UPPORT OF P ETITIONER

_________________________

Adrianna M. Simonelli

PERKINS COIE LLP

1120 N.W. Couch Street,

Tenth Floor

Portland, Oregon 97209

Michael S. Paisner

Counsel of Record

Jonathan P. Hawley

PERKINS COIE LLP

1201 Third Avenue,

Suite 4900

Seattle, Washington 98101

(206) 359-8000

MPaisner@perkinscoie.com

i

T ABLE OF C ONTENTS

Interest of Amicus Curiae ................................................... 1

Summary of Argument ........................................................ 2

Argument .............................................................................. 3

A. Justices and judges of varied judicial philosophies

and multiple legal scholars have questioned

qualified immunity as currently applied. ............... 5

B. The current state of qualified immunity is not in

law enforcement’s interests. ................................... 8

1. Lower courts need guidance on how to apply

the qualified-immunity doctrine. ...................... 8

2. The “clearly established” standard as

currently applied leads to unjust results. ...... 10

3. Law enforcement does not benefit from a

doctrine that provides robust protection for

the worst conduct. ............................................ 11

C. Corporal Ruby’s conduct shocks the conscience. 14

Conclusion ........................................................................... 18

ii

T ABLE OF AUTHORITIES

Page(s)

CASES

Brosseau v. Haugen,

543 U.S. 194 (2004) ......................................................... 4

Browder v. City of Albuquerque,

787 F.3d 1076 (10th Cir. 2015) ................................ 4, 17

Dean ex rel. Harkness v. McKinney,

976 F.3d 407 (4th Cir. 2020) .......................................... 9

Edrei v. Maguire,

892 F.3d 525 (2d Cir. 2018) ............................................ 9

Harlow v. Fitzgerald,

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

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ..................................................... 5

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020) .......................................... 7

Kisela v. Hughes,

584 U.S. 100 (2018) ......................................................... 7

Manzanares v. Roosevelt County Adult

Detention Center,

331 F. Supp. 3d 1260 (D.N.M. 2018) ............................. 6

Martinez v. High,

91 F.4th 1022 (9th Cir.) .......................................... 10–11

Mason v. Faul,

929 F.3d 762 (5th Cir. 2019) ........................................ 11

Mattos v. Agarano,

661 F.3d 433 (9th Cir. 2011) ........................................ 11

iii

Pearson v. Callahan,

555 U.S. 223 (2009) ..................................................... 4, 9

Rucker v. Harford County,

946 F.2d 278 (4th Cir. 1991) ........................................ 16

Sauers v. Borough of Nesquehoning,

905 F.3d 711 (3d Cir. 2018) ............................................ 9

Scott v. Smith,

109 F.4th 1215 (9th Cir. 2024) ....................................... 9

Simpson v. City of Fort Smith,

389 F. App’x 568 (8th Cir. 2010) ................................. 16

Taylor v. Riojas,

592 U.S. 7 (2020) ............................................................. 9

Tyson v. Sabine,

42 F.4th 508 (5th Cir. 2022) ........................................... 9

White v. Pauly,

580 U.S. 73 (2017) ........................................................... 9

Winzer v. Kaufman County,

916 F.3d 464 (5th Cir. 2019) ........................................ 11

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) .......................................... 8

Ziglar v. Abbasi,

582 U.S. 120 (2017) ......................................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV .......................................... 9, 14, 16

STATUTES

42 U.S.C. § 1983 .................................................................... 6

iv

OTHER AUTHORITIES

Alexander A. Reinert, Qualified

Immunity’s Flawed Foundation, 111

CAL. L. REV. 201 (2023) ................................................. 5

David D. Kirkpatrick et al., Why Many

Police Traffic Stops Turn Deadly, N.Y.

TIMES, https://tinyurl.com/2s3h3py2

(Nov. 30, 2021) .............................................................. 13

Hayden Godfrey et al., Fatal Force, WASH.

POST, https://tinyurl.com/yc6uf43w

(Dec. 3, 2024) ................................................................. 12

James Craven et al., How Qualified

Immunity Hurts Law Enforcement,

CATO INST. (Feb. 15, 2022), https://

tinyurl.com/yybwnwjb ................................................... 6

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 NOTRE DAME

L. REV. 1797 (2018)..................................................... 6–7

Maya King, How ‘Defund the Police’ Went

from Moonshot to Mainstream,

POLITICO (June 17, 2020), https://

tinyurl.com/3zeccz5m ................................................... 13

Mike Baker et al., Three Words. 70 Cases.

The Tragic History of ‘I Can't

Breathe.’, N.Y. TIMES (June 29, 2020),

https://tinyurl.com/59d4h722 ...................................... 13

v

Rich Morrin et al., Behind the Badge, PEW

RSCH. CTR. (Jan. 11, 2017), https://

tinyurl.com/429payh2 ................................................... 13

S.W.A.T. Operational Guidelines and

Standardized Training

Recommendations, CAL. COMM’N ON

PEACE OFFICER STANDARDS &

TRAINING, https://tinyurl.com/4wcsff3j

(Sept. 2019) ................................................................... 15

Statistics on Law Enforcement Officer

Deaths in the Line of Duty from

January Through July 2024, FBI,

https://tinyurl.com/3kjjs8rm (last

visited Dec. 18, 2024) .................................................... 12

U.S. Data on Police Shootings and

Violence, UNIV. OF ILL. CHI., https://

tinyurl.com/yzt2kmdy (last visited Dec.

18, 2024) ......................................................................... 12

William Baude, Is Qualified Immunity

Unlawful?, 106 CAL. L. REV. 45 (2018) .................... 5–6

In the Supreme Court of the United States

_________________________

No. 24-578

C OREY CUNNINGHAM, ON BEHALF OF

K ODI GAINES, A MINOR,

Petitioner,

v.

BALTIMORE C OUNTY, MARYLAND ;

C ORPORAL R OYCE RUBY,

Respondents.

_________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Maryland

_________________________

BRIEF FOR THE LAW ENFORCEMENT ACTION PARTNERSHIP

AS A MICUS CURIAE IN S UPPORT OF P ETITIONER

_________________________

INTEREST OF AMICUS CURIAE 1

The Law Enforcement Action Partnership (“LEAP”)

is a nonprofit organization whose members include police,

prosecutors, judges, corrections officials, and other lawenforcement officials advocating for criminal-justice and

drug-policy reforms to make our communities safer and

more just. Founded by five police officers in 2002 with a

sole focus on drug policy, today LEAP’s speakers’ bureau

numbers more than 300 criminal-justice professionals

advising on police-community relations, incarceration,

harm reduction, drug policy, and global issues. Through

Pursuant to this Court’s Rule 37, counsel for amicus curiae state

that no party or counsel for a party, or any other person other than

amicus curiae and its counsel, made a monetary contribution to fund

the preparation or submission of this brief. Counsel further state that

all parties were timely notified of the filing of this brief.

1

2

speaking engagements, media appearances, testimony,

and support of allied efforts, LEAP reaches audiences

across diverse affiliations and beliefs, calling for more

practical and ethical policies from a public-safety perspective.

As part of its mission to promote more sound and

equitable law-enforcement practices, LEAP and its members have an interest in this Court’s clarifying the contours of the qualified-immunity doctrine—in particular,

instructing that, where the conduct in question is obviously unlawful, there is no need to present a prior case

with similar facts to show that an officer violated clearly

established law. This case presents an important opportunity to correct the overly cramped approach adopted by

some courts, including the Maryland Supreme Court

below, to ensure that officers who engage in egregious

conduct are not unduly shielded from liability—while still

retaining appropriate protections for the vast majority of

officers who act reasonably and defensibly.

S UMMARY OF ARGUMENT

Application of qualified immunity in the law-enforcement context makes sense when, for instance, police officers need the latitude to make split-second, life-or-death

decisions. But conferring robust protection on an officer

who engages in egregiously wrongful conduct simply

because no factually analogous precedent exists extends

the qualified-immunity doctrine beyond its justifiable

limit, shielding bad actors from liability, diminishing

respect for law enforcement, and endangering citizens.

Such an unwarranted extension of qualified immunity

occurred here. Five-year-old Kodi Gaines suffered severe

wounds to his face and elbow when Corporal Royce Ruby

shot at Kodi’s mother, Korryn Gaines—with Kodi in the

room—at the end of a six-hour police standoff. Pet.

3

App. 8a–9a, 191a, 196a–208a. At the moment Corporal

Ruby discharged his weapon and injured Kodi, Ms.

Gaines presented no imminent threat of death or serious

bodily injury to herself or anyone else. Pet. App. 213a.

Moreover, Corporal Ruby knew both that Kodi was in the

kitchen with his mother and that it was possible a bullet

might strike Kodi, since Corporal Ruby’s view of Kodi was

obstructed by a wall. Pet. App. 9a–10a, 92a. He opened

fire anyway because, as a witness after the shooting testified, Corporal Ruby said he was “hot” and “frustrated.”

Pet. App. 214a.

Even though Corporal Ruby’s rash, dangerous decision was not justified by the exigencies of the situation or

any sound law-enforcement practice, the Maryland

Supreme Court nevertheless ruled that he was entitled to

qualified immunity—just because his conduct did not violate any prior, factually analogous caselaw. Pet. App. 9a,

42a, 49a–50a.

As a group of law-enforcement professionals concerned with sound police practices and standards, LEAP

asks the Court to grant certiorari and resolve the circuit

split that has emerged on this important legal issue with

significant public-safety ramifications. Specifically, the

Court should make clear that obviously and egregiously

unlawful conduct alone precludes qualified immunity,

regardless of whether a prior decision involving similar

facts does or does not exist.

ARGUMENT

Law-enforcement misconduct is a key public concern

with real and tragic consequences. At the same time,

police work is inherently dangerous, and public safety

depends on police officers having the freedom to act decisively and with dispatch when circumstances warrant.

The qualified-immunity doctrine represents an attempt to

4

accommodate these twin imperatives in “the sometimes

hazy border between excessive and acceptable force.”

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)

(cleaned up). The doctrine seeks to balance “two important

interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when

they perform their duties reasonably.” Pearson v. Callahan,

555 U.S. 223, 231 (2009).

Yet jurists and legal scholars across the ideological

spectrum believe that qualified immunity goes too far

when it shields gross misconduct, such as occurred in this

case. Law-enforcement personnel like LEAP’s members

support efforts to clarify the qualified-immunity doctrine

because, simply put, egregious misconduct is not good

policework and is not conducive to public safety. LEAP’s

members seek just and sensible legal rules applicable to

police uses of force—including a properly circumscribed

application of qualified immunity that does not shield

truly bad actors from liability and repercussion—because

it is in the interests of both the public and law enforcement.

This case exemplifies why clarification from this Court

is needed. “[S]ome things are so obviously unlawful that

they don’t require detailed explanation and sometimes the

most obviously unlawful things happen so rarely that a

case on point is itself an unusual thing.” Browder v. City

of Albuquerque, 787 F.3d 1076, 1082 (10th Cir. 2015) (Gorsuch, J.). That is the case here, where a police officer following established protocol and common sense would not

have recklessly fired his weapon like Corporal Ruby did.

Yet the Maryland Supreme Court nevertheless applied

qualified immunity in a way that excused Corporal Ruby’s

obviously wrongful conduct, believing itself constrained

5

by the need to identify an analogous precedent—which

the court suggested might require a finding of liability

“under the Fourteenth Amendment for a ricochet shot.”

Pet. App. 47a. That is not the law, and it should not be the

law. To avoid such unjust results—and to give lawenforcement personnel the guidance they need to make

sound decisions—this Court should use this opportunity

to clarify the limits of qualified immunity in instances of

egregiously shocking police misconduct.

A. Justices and judges of varied judicial philosophies and

multiple legal scholars have questioned qualified

immunity as currently applied.

The qualified-immunity doctrine has been the subject

of criticism from Justices, judges, and legal scholars of all

political and ideological stripes. Indeed, as one academic

has noted, “[c]ritics who otherwise share little common

ground attack the doctrine on multiple grounds.”2 This

criticism can largely be divided into two categories: that

the doctrine lacks sound legal underpinnings and that it

has negative practical consequences. 3

First, qualified immunity—at least as currently

applied by some courts—rests on an unsound foundation.

The “clearly established” standard “cannot be located in

§ 1983’s text.” Hoggard v. Rhodes, 141 S. Ct. 2421, 2421

(2021) (Thomas, J., respecting the denial of certiorari).

Nor does it plausibly derive from the common-law “goodfaith defense.”4 And while some have sought to justify it

Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 CAL. L. REV. 201, 203 (2023).

2

See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106

CAL. L. REV. 45, 46–49 (2018) (exploring “two pillars” of qualified

immunity).

3

4

See, e.g., id. at 55–60.

6

as remedying an earlier, mistaken broadening of section

1983—the so-called “two-wrongs-make-a-right” theory—

that “extremely crude” approach lacks a principled basis

in text or history. 5 The doctrine also fails to give fair warning to government officials, thus undermining any justification based on lenity. 6 Legal scholars and judges have

also criticized the doctrine for ossifying the development

of the law on constitutional rights.7

Practically speaking, overbroad application of the

qualified-immunity doctrine leads to perverse and undesirable results by shielding official conduct that would

otherwise be indefensible, thus “provid[ing] a judicial

blessing for departments to keep unethical officers on the

force—leaving good cops in bad company.” 8 Qualified

immunity is also partly to blame for the public’s deteriorating confidence in the police, which makes it more difficult for law-enforcement personnel to do their jobs. 9

Moreover, the doctrine as currently applied does not even

effectively achieve the policy goals touted by its proponents. 10 For example, research shows “that qualified

5

See, e.g., id. at 69.

6

See, e.g., id. at 69–77.

See, e.g., Joanna C. Schwartz, The Case Against Qualified

Immunity, 93 NOTRE DAME L. REV. 1797, 1814–1820 (2018); see also

Manzanares v. Roosevelt Cnty. Adult Detention Ctr., 331 F. Supp. 3d

1260, 1294 n.10 (D.N.M. 2018) (Browning, J.) (noting that “to always

decide the clearly established prong first and then to always say that

the law is not clearly established could be stunting the development

of constitutional law”).

7

James Craven et al., How Qualified Immunity Hurts Law

Enforcement, CATO INST. (Feb. 15, 2022), https://tinyurl.com/

yybwnwjb.

8

9

Id.

10

See, e.g., Schwartz, supra note 7, at 1803–1814.

7

immunity is unnecessary and ill-suited to shield government officials from burdens of discovery and trial, as it is

very rarely the reason that suits against law enforcement

officers are dismissed.”11

Reflecting these dual areas of criticism, Justices and

judges appointed during both Republican and Democratic

administrations have questioned the validity of the doctrine, often specifically criticizing the requirement that

the law be “clearly established” at the time of an alleged

constitutional violation—both as a matter of legal theory 12

and as applied in qualified-immunity cases. 13 As one judge

has explained, “it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current ‘yes harm, no foul’ imbalance leaves

Id. at 1804. Professor Schwartz “reviewed the dockets of 1183

Section 1983 lawsuits filed against law enforcement officers and agencies over a two-year period in five federal districts” and “found that

just seven of these 1183 cases (0.6%) were dismissed on qualified

immunity grounds before discovery” and “just thirty-eight (3.2%) of

the 1183 cases . . . were dismissed before trial on qualified immunity

grounds.” Id. at 1809.

11

See, e.g., Ziglar v. Abbasi, 582 U.S. 120, 156–160 (2017)

(Thomas, J., concurring in part and concurring in the judgment)

(“Instead of asking whether the common law in 1871 would have

accorded immunity to an officer for a tort analogous to the plaintiff’s

claim under § 1983, we instead grant immunity to any officer whose

conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

(cleaned up)); Horvath v. City of Leander, 946 F.3d 787, 801 (5th Cir.

2020) (Ho, J., concurring in the judgment in part and dissenting in

part) (“[T]here is no textualist or originalist basis to support a ‘clearly

established’ requirement in § 1983 cases.”).

12

See, e.g., Kisela v. Hughes, 584 U.S. 100, 113–120 (2018)

(Sotomayor, J., dissenting) (questioning Court’s application of

“clearly established” standard and emphasizing that caselaw has

“never required a factually identical case to satisfy the ‘clearly established’ standard”).

13

8

victims violated but not vindicated. Wrongs are not

righted, and wrongdoers are not reproached.” Zadeh v.

Robinson, 928 F.3d 457, 479, 480–481 (5th Cir. 2019) (Willet, J. concurring in part and dissenting in part).

There is, in short, ideological consensus, both across

the federal bench and in the academy, that qualified

immunity—particularly the “clearly established” standard—is being applied in ways that are neither workable

nor defensible.

B. The current state of qualified immunity is not in law

enforcement’s interests.

The concerns articulated by judges and academics are

shared by law enforcement. Confusion over the proper

scope and application of qualified immunity—exemplified

by the Maryland Supreme Court’s ruling in this case—

does little to engender trust in the nation’s police forces

or provide needed clarity and guidance to the officers who

must conduct themselves in accordance with the law (and,

in turn, the state and federal courts that must judge their

actions).

1. Lower courts need guidance on how to apply the

qualified-immunity doctrine.

Properly applied, qualified immunity should be tailored to prevent chilling necessary government action

while allowing the vindication of constitutional rights. See

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (noting that

unmeritorious claims impose “a cost not only to the

defendant officials, but to society as a whole” and

“dampen the ardor of all but the most resolute, or the

most irresponsible public officials, in the unflinching discharge of their duties” (cleaned up)). To “best [] accommodat[e these] competing values,” id., the Court has

adopted a qualified-immunity framework according to

which a plaintiff must show that (1) an officer violated a

9

constitutional right and (2) the right was “clearly established” at the time of the incident, Pearson, 555 U.S. at

227.

As noted in the pending petition for certiorari, however, the second requirement has led to a circuit split on a

critical issue: whether conduct that shocks the conscience

alone violates clearly established law. Pet. 20–23. 14

LEAP agrees with Petitioner and the Second, Fourth,

and Fifth Circuits that an officer’s conduct that shocks the

conscience necessarily violates clearly established law.

Notably, LEAP’s members know firsthand that lawenforcement officers sometimes face life-or-death

Compare, e.g., Edrei v. Maguire, 892 F.3d 525, 538–540 (2d Cir.

2018) (concluding that conscience-shocking conduct violated Fourteenth Amendment and was clearly established and rejecting argument that “the circumstances before [defendants] were too dissimilar

from then-existing precedents to provide [requisite] notice” because

such stringent approach “would convert the fair notice requirement

into a presumption against the existence of basic constitutional

rights”); Dean ex rel. Harkness v. McKinney, 976 F.3d 407, 417–420

(4th Cir. 2020) (“[T]aking the facts in the light most favorable to the

plaintiff, we find that [defendant’s] actions were deliberately indifferent to [victim’s] life and safety such that it shocks the conscience and

rises to the level of a violation of a constitutional right that was clearly

established at the time of the collision.”); Tyson v. Sabine, 42 F.4th

508, 519–521 (5th Cir. 2022) (“We have little trouble finding that the

constitutional offense was obvious because the physical sexual abuse

alleged here is a ‘particularly egregious’ and ‘extreme circumstance[]’

of assault by a state official.” (quoting Taylor v. Riojas, 592 U.S. 7, 8–

9 (2020) (per curiam))), with Sauers v. Borough of Nesquehoning, 905

F.3d 711, 718–723 (3d Cir. 2018) (alleged violation was not clearly

established even though officer pled guilty to vehicular homicide and

reckless endangerment); Scott v. Smith, 109 F.4th 1215, 1229–1230

(9th Cir. 2024) (concluding that shocking conduct alone does not vitiate qualified immunity because “clearly established law cannot be

defined at such a ‘high level of generality.’” (quoting White v. Pauly,

580 U.S. 73, 79 (2017) (per curiam))).

14

10

situations that can escalate with little notice. At the same

time, the mere presence of a gun or other perceived risk

does not give police officers license to act with impunity;

and, human behavior being what it is, the number and

variety of scenarios in which police misconduct might

occur with tragic results is nearly infinite. When these

unfortunate situations arise, and especially when children

are present, police officers who fail to follow basic and

commonsense policing protocols can and should be held

accountable.

Accordingly, the Court should grant certiorari here to

resolve this circuit split as Petitioner and LEAP urge,

applying the obviousness principle to hold that shocking

and egregious conduct violates clearly established law and

thereby renders qualified immunity inapplicable, even in

the absence of similar prior cases. Pet. 20–21.

2. The “clearly established” standard as currently

applied leads to unjust results.

This is far from the only case where the “clearly established” standard has led to results that cannot be justified.

To give just one example, in Martinez v. High, 91 F.4th

1022 (9th Cir. 2024), the court granted qualified immunity

to a defendant police officer who told another officer about

his girlfriend’s confidential reports of domestic abuse; the

disclosure led to the other officer severely beating and

sexually assaulting his girlfriend. The court concluded

that the defendant officer had violated Ms. Martinez’s

due-process rights by indifferently putting her at risk of

foreseeable harm, and it acknowledged the obvious danger and unconscionability of the defendant’s conduct: the

officer “understood that a victim’s confidential reports

should not be disclosed to the abuser” and “[y]et . . . told

[her colleague] about Ms. Martinez’s confidential report

11

for no apparent reason other than to discredit Ms. Martinez.” Id. at 1028–1030. Yet the court nevertheless determined that the officer’s actions were shielded by qualified

immunity because “no existing authority gave Officer

High sufficient notice in 2013 that her conduct violated

due process.” Id. at 1032.

Federal and state reporters alike abound with similar

examples of perpetrators of egregious and indisputably

wrongful acts evading liability simply because no sufficiently analogous case was on the books at the time of

their misconduct—even though they should have known

as a matter of basic humanity and decency that their

actions were wrong. 15 The “clearly established” standard

thus leads to perverse results without any cognizable benefit to law enforcement or society generally.

3. Law enforcement does not benefit from a doctrine

that provides robust protection for the worst conduct.

As Petitioner aptly notes, “[p]ermitting a qualified

immunity defense in cases involving egregiously wrongful

conduct because there is no prior decision addressing similar facts distorts the qualified immunity doctrine by, in

effect, providing the strongest protection for the most

egregious conduct.” Pet. 24. This case presents an opportunity for the Court to clarify the law and make

policing safer for both the public and law enforcement.

See, e.g., Mattos v. Agarano, 661 F.3d 433, 452 (9th Cir. 2011)

(en banc) (use of taser on seven-months-pregnant woman pulled over

for speeding while driving her son to school); Mason v. Faul, 929 F.3d

762, 763 (5th Cir. 2019) (per curiam) (officer who released his service

canine on and repeatedly shot prostrate armed-robbery suspect);

Winzer v. Kaufman County, 916 F.3d 464 (5th Cir. 2019) (per curiam)

(officers who shot at young man on bike who had toy pistol and then

repeatedly tased him while he was dying in his father’s backyard).

15

12

It is in the nature of modern society that police officers

must sometimes use force—including, in certain circumstances, lethal force—to address threats to the public or

officers themselves. The statistics tell a grim story. Police

shootings have killed more than 1,000 people in the past

12 months in the United States, with an overall increase

in frequency—and news coverage—in recent years. 16

Even more numerous are the tens of thousands of yearly

injuries, many of which are serious. 17 Given the severity

of the consequences and the sheer extent of the problem,

it is essential for the law to hold police officers to a basic

set of societal and professional standards, ensuring that

force is used only as a last resort.

To be sure, policing is dangerous work, and most uses

of force by police officers are well justified. An average of

sixty police officers per year were killed in the line of duty

between 2020 and 2023, 18 illustrating the risks that officers face on a daily basis. Faced with myriad threats across

their many encounters with those engaged—or potentially engaged—in wrongdoing, police officers must sometimes make split-second, life-or-death decisions to protect

themselves and others. And these uses of force might well

be necessary and legitimate, even when the consequences

are unavoidably tragic.

Yet some uses of force go beyond the bounds of what

any reasonable person would deem acceptable—indeed,

are so egregious as to shock the conscience—and this

Hayden Godfrey et al., Fatal Force, WASH. POST, https://

tinyurl.com/yc6uf43w (Dec. 3, 2024).

16

U.S. Data on Police Shootings and Violence, UNIV. OF ILL.

CHI., https://tinyurl.com/yzt2kmdy (last visited Dec. 18, 2024).

17

Statistics on Law Enforcement Officer Deaths in the Line of

Duty from January Through July 2024, FBI, https://tinyurl.com/

3kjjs8rm (last visited Dec. 18, 2024).

18

13

minority of cases presents a source of significant public

concern. Police, trained to presume danger, might overuse physical force and aggression in even routine, nonviolent situations. 19 Or they might wildly overreact to a situation that, while potentially fraught and perilous, still

does not present a risk of imminent harm. In these situations, as in this case, police officers who flagrantly violate

established protocols and basic law-enforcement procedures—with tragic and foreseeable consequences—

should not enjoy the shield afforded by qualified immunity.

As an organization of current and former law-enforcement professionals, LEAP believes in the paramount

importance of building trust between police forces and the

communities they serve. This is true now more than ever,

with more than two-thirds of Americans supporting major

police reform—and one-third in favor of defunding the

police. 20 Transparency and accountability are indispensable components of this needed trust, which is eroded by

the perception that officers who commit misconduct will

rarely be held accountable. This perception is not limited

to the general public: Remarkably, nearly 72% of 8,000

interviewed police officers disagreed with the statement

that officers who consistently do a poor job are held

accountable. 21

See, e.g., David D. Kirkpatrick et al., Why Many Police Traffic

Stops Turn Deadly, N.Y. TIMES, https://tinyurl.com/2s3h3py2 (Nov.

30, 2021); Mike Baker et al., Three Words. 70 Cases. The Tragic History of ‘I Can’t Breathe.’, N.Y. TIMES (June 29, 2020), https://

tinyurl.com/59d4h722.

19

Maya King, How ‘Defund the Police’ Went from Moonshot to

Mainstream, POLITICO (June 17, 2020), https://tinyurl.com/

3zeccz5m.

20

Rich Morrin et al., Behind the Badge, PEW RSCH. CTR. 13 (Jan.

11, 2017), https://tinyurl.com/429payh2.

21

14

By protecting officers from suit for (and thus from the

consequences of) egregious misconduct, qualified immunity as currently applied undermines the trust that LEAP

and other law-enforcement personnel seek to instill in

their communities. And the Maryland Supreme Court’s

decision here—in particular, the blinkered application of

the “clearly established” standard that it and other courts

have embraced—will further erode public trust and shield

bad actors from scrutiny and accountability.

C. Corporal Ruby’s conduct shocks the conscience.

Corporal Ruby’s actions are a prime example of a

reckless, nonurgent decision that led to severe consequences for an innocent young child—and why this

Court’s intervention is necessary.

That Corporal Ruby violated one of Kodi’s clearly

established Fourteenth Amendment rights—namely, his

substantive due-process right against being physically

injured by agents of the State—is beyond reasonable dispute. The facts in this case matter and merit emphasis.

Officers were at Ms. Gaines’s home to serve her with a

warrant for missing a court date, a misdemeanor offense.

Pet. App. 190a. Ms. Gaines was off her mental-health medication but posed no immediate threat to Kodi, Corporal

Ruby, or anyone else. Pet. App. 201a, 202a, 249a, 262a.

Corporal Ruby knew that five-year-old Kodi was in the

kitchen with his mother. Pet. App. 198a, 203a. And Corporal Ruby’s stated justification for opening fire was, as a

witness testified, that he was “hot” and “frustrated.” Pet.

App. 214a.

One does not need specialized law-enforcement training to conclude that this conduct was unconscionable and

unjustifiable. But it is worth noting that Corporal Ruby’s

conduct and decision-making in this situation contradicted foundational practices for SWAT threat

15

assessments, which are designed to assist tactical police

deployment.22 Those practices emphasize the importance

of

de-escalating fraught encounters such as the one that

unfolded that hot summer’s day, not suddenly and precipitously escalating them. 23 In determining the appropriate

course of action when confronted with an armed individual, law enforcement is trained and expected to ask and

consider a few simple questions before using deadly force.

For example: Is there specific or articulable information

that the suspect is mentally or emotionally disturbed? Is

the offense for which arrest is sought a violent offense?

Are children present at the location? Are hostages

believed to be present? 24

Corporal Ruby had all this information available to

him yet acted contrary to the basic de-escalatory protocol

that a reasonable police officer would have followed in

such a situation. As the Maryland Supreme Court recognized, officers were told during the standoff that Ms.

Gaines “had a history of mental illness and that she had

been off her medication.” Pet. App. 8a. Corporal Ruby

knew that Kodi was with his mother in the kitchen, Pet.

App. 9a–10a, and he knew—or should have known—that

she was not holding her son “hostage,” cf. Pet. App. 48a

(noting that “Ms. Gaines . . . declined an opportunity to let

See generally, e.g., S.W.A.T. Operational Guidelines and

Standardized Training Recommendations, CAL. COMM’N ON PEACE

OFFICER STANDARDS & TRAINING, https://tinyurl.com/4wcsff3j

(Sept. 2019).

22

See id. at 7 (“Philosophy of SWAT—The mission of SWAT is to

save lives. The primary focus of SWAT is to provide tactical solutions

that increases the likelihood of de-escalation and safe resolution of

high-risk incidents.”).

23

24

Id. at 49–52.

16

Kodi exit the standoff” but not characterizing him as hostage). Corporal Ruby also knew that the warrant for Ms.

Gaines’s arrest was based on a nonviolent misdemeanor,

and there is no suggestion that she had ever committed a

violent offense. And Corporal Ruby had ample time—six

hours—to consider alternatives to precipitously shooting

Ms. Gaines with Kodi present and in the zone of danger.

Nothing had changed at the time of the shooting except

that Corporal Ruby was hot and frustrated.

Corporal Ruby’s failure to undertake any one of these

alternatives, and his gross deviation from standard lawenforcement protocols, led him to a course of conduct—

opening fire in a closed, obstructed area where a child was

known to be present—that shocks the conscience. Such

conduct obviously violated Kodi’s Fourteenth Amendment rights, 25 thus establishing the absence of qualified

immunity regardless of the existence vel non of a precedent involving the same or similar facts.

As the dissent noted below, “[t]hat the case is unusual

does not make the violation of a clearly established right

any less identifiable.” Pet. App. 66a. And, indeed, the

majority’s approach would have the perverse effect of

immunizing precisely the types of outrageous conduct

that are so shocking that they rarely occur—and so rarely

produce judicial precedent declaring such conduct illegal.

As a current member of this Court observed while serving

See, e.g., Rucker v. Harford County, 946 F.2d 278, 279 (4th Cir.

1991) (“[T]he due process clause provides substantive protection to []

a bystander against the infliction of personal injury by police conduct

sufficiently outrageous to constitute completely arbitrary state

action[.]”); Simpson v. City of Fort Smith, 389 F. App’x 568, 570 (8th

Cir. 2010) (per curiam) (recognizing that Fourteenth Amendment

violation might lie where officers (1) had moment of reflection,

(2) knew bystander was in “the line of fire,” and (3) consciously disregarded risk that bystander would be shot).

25

17

as a judge on a federal court of appeals, “it would be

remarkable if the most obviously unconstitutional conduct

should be the most immune from liability only because it

is so flagrantly unlawful that few dare its attempt.”

Browder, 787 F.3d at 1082–1083 (Gorsuch, J.). Few cases

illustrate the illogic of such an outcome as poignantly as

this one. The Maryland Supreme Court’s conclusion that

an analogous precedent must be identified to overcome

qualified immunity rested on a misapplication of the

“clearly established” standard that this Court can and

should remedy.

* * *

LEAP respectfully requests that the Court grant the

petition for a writ of certiorari. This case presents an

important opportunity to fix qualified immunity rather

than abolish it—and, in so doing, address the concerns

articulated by judges and scholars across the ideological

spectrum. Moreover, failure to correct the Maryland

Supreme Court’s misapplication of the qualified-immunity doctrine would serve to protect even the most egregious instances of official misconduct and, consequently,

damage public trust in law enforcement.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Adrianna M. Simonelli

PERKINS COIE LLP

1120 N.W. Couch Street,

Tenth Floor

Portland, Oregon 97209

December 23, 2024

Michael S. Paisner

Counsel of Record

Jonathan P. Hawley

PERKINS COIE LLP

1201 Third Avenue,

Suite 4900

Seattle, Washington 98101

(206) 359-8000

MPaisner@perkinscoie.com