Respondents Brief — Archie Williams, Petitioner v. City of Baton Rouge, Louisiana, et al.

No. 25-1175

______________________________________

In the

Supreme Court of the United States

______________________________________

ARCHIE WILLIAMS,

v.

Petitioner,

CITY OF BATON ROUGE; ALFRED CHARLES

MONDRICK; MARJORIE GROHT; STEVEN

WOODRING; FORMER LOUISIANA STATE POLICE

FORENSIC SCIENTIST PATRICK LANE,

FINGERPRINT EXAMINER SYBIL GUIDRY,

SEROLOGIST NACE “JERRY” MILLER,

Respondents.

__________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

__________________________________________

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

__________________________________________

Michael P. Schillage (#35554)

Counsel of Record

222 St. Louis Street, Suite 902

Baton Rouge, Louisiana 70802

Tel.: (225) 389-3114

Email: mschillage@brla.gov

Counsel for Respondents

May 13, 2026

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTIONS PRESENTED

I.

Whether the two-prong qualified immunity

analysis remains the same regardless of the

implicated right.

II.

Whether the U.S. Fifth Circuit properly

rejected immaterial, irrelevant, and

speculative information in determining that

summary judgment was appropriate based

upon the qualified immunity defense and

the lack of a genuine issue of material fact.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, City of

Baton Rouge/Parish of East Baton Rouge discloses

the following. As a political subdivision of the State

of Louisiana and a local governmental entity, there

is no parent or publicly held company owning 10%

stock or more.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED……………………...……..i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ..................................... iii

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

I.

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

II.

Procedural Background .................................2

SUMMARY OF THE ARGUMENT ............................3

REASONS FOR DENYING THE PETITION...……..5

I. No different approach to qualified

immunity for Petitioner’s case…………..........…...6

a. Totality of circumstances confirm

a permissible identification process…….….....7

b. Jurisprudence of the time shows

no “clearly established” right

against nonsuggestive lineups………………..10

II. Irrelevant, immaterial, and

speculative information was not weighed…………..18

a. Immaterial facts neutral in nature

do not factor into summary

judgment analysis……………………………...19

b. Irrelevant and speculative opinions

do not assist the factfinder……………..…….22

CONCLUSION…………………………………….…...25

iii

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ............................................3, 4

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ........................................19, 22

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ..........................................6, 16

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ..............................................18

Coleman v. Alabama,

399 U.S. 1 (1970)……………………………….10, 16

District of Columbia v. Wesby,

583 U.S. 48 (2018) ................................................10

Dombrowski v. Eastland,

387 U.S. 82 (1967) ................................................22

First Nat. Bank of Ariz. v. Cities Service Co.,

391 U.S. 253 (1968) ..............................................22

Foster v. California,

394 U.S. 440 (1969)…………...……………10, 14-15

iv

Good v. Curtis,

601 F.3d 393 (2010)…………………………………..8

Hamilton v. Segue Software Inc.,

232 F.3d 473 (5th Cir. 2000)................................19

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................................6

Malley v. Briggs,

475 U.S. 335 (1986)……………………………….4, 7

Manson v. Brathwaite,

432 U.S. 98 (1977) ................................................17

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ..............................................18

Mullenix v. Luna,

577 U.S. 7 (2015) ....................................................7

Neil v. Biggers,

409 U.S. 188 (1972) ......................................7, 8, 17

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................6

People v. Evans,

39 Cal.2d 242………………………………..………14

Reichle v. Howards,

566 U.S. 658 (2012) ................................................6

v

Saucier v. Katz,

533 U.S. 194 (2001) ................................................6

Scott v. Harris,

550 U.S. 372 (2007) ........................................18, 19

Simmons v. U.S.,

390 U.S. 377 (1968) .............................. 7, 10, 12-14

Stovall v. Denno,

388 U.S. 293………………………….……...10, 11-14

Taylor v. Barkes,

575 U.S. 822 (2015) ..............................................16

Statutes and Rules

42 U.S.C. § 1983 ..........................................................2

F.R.C.P. Rule 56…………………………………...……18

S. Ct. R. 10 ...............................................................3, 5

1

STATEMENT OF THE CASE

I.

Factual Background

This case arises from Petitioner’s conviction for

crimes relating to the stabbing and rape of victim,

Anne Eaton. The City of Baton Rouge/Parish of East

Baton Rouge (“City/Parish”), through its Baton Rouge

Police Department (“BRPD”) detectives Alfred

Charles Mondrick and Marjorie Groht, with

assistance from detective Steven Woodring,

performed an investigation that led to Petitioner’s

arrest. The investigation took place for roughly five

weeks between December 1982 and January 1983.

The detectives showed the victim multiple arrays of

photographic lineups on five separate occasions over

the course of four days. Each photograph lineup

consisted of a “six-pack of photographs of Black men

of the same general age and physical features and

characteristics. After identifying Petitioner in a

photograph lineup, the victim positively identified

Petitioner as her attacker during an in-person lineup.

Importantly, DNA forensics had not yet been

invented and was not available to police during its

1982-1983 criminal investigation. Rather, officers

had to rely on witness accounts, criminal informants,

and recollections to further their investigative efforts.

The detectives timely furnished all information,

whether deemed pertinent or not, to the prosecution

and criminal defense teams prior to Petitioner’s

criminal trial.

2

At the close of Petitioner’s criminal trial, a jury

found Petitioner guilty of aggravated burglary,

aggravated rape, and attempted murder. Petitioner

served over thirty-six years in prison until 2019 when

newly-available forensic evidence implicated another

person as the perpetrator.

II.

Procedural Background

On March 17, 2020, Petitioner brought this

lawsuit under 42 U.S.C. § 1983 against the

City/Parish; retired BRPD detectives Alfred Charles

Mondrick, Marjorie Groht, and Steven Woodring

(collectively referred to as the “City/Parish

Respondents”); and former Louisiana State Police

Forensic Scientist Patrick Lane, Fingerprint

Examiner Sybil Guidry, and Serologist Nace “Jerry”

Miller (collectively referred to as “State Police

Respondents”).

Petitioner alleged that the City/Parish

Respondents violated his Fourteenth Amendment

right to due process by using impermissibly

suggestive

photograph

lineups

during

the

investigation. Petitioner also alleged a Fourteenth

Amendment violation against the State Police

Respondents for suppressing exculpatory crime scene

evidence. Petitioner also brought various state law

claims including malicious prosecution, spoliation of

evidence, intentional infliction of emotional distress,

and negligence.

The district court granted summary judgment

in favor of the City/Parish Respondents as well as the

State Police Respondents, finding qualified immunity

3

applied to each actor’s involvement in the criminal

investigation. Petitioner appealed to the Fifth Circuit,

whose panel affirmed the district court’s decision. In

pertinent part, the Fifth Circuit concluded that

Petitioner failed to prove that the photograph lineups

violated Petitioner’s constitutional or statutory rights

and that there were no genuine issues of material fact

to preclude summary judgment.

Petitioner now files this Petition for Writ of

Certiorari asserting a case of first impression limited

to the application of qualified immunity in favor of the

City/Parish Respondents. Petitioner does not

challenge the State Police Respondents’ affirmed

dismissal.

SUMMARY OF THE ARGUMENT

Petitioner’s arguments offer no compelling

reasons to grant writ, and must be denied,

accordingly. A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly

stated rule of law. S. Ct. Rule 10.

The Supreme Court has repeatedly held that

“government officials performing discretionary

functions [enjoy] qualified immunity, shielding them

from civil damages liability as long as their actions

could reasonably have been thought consistent with

the

rights

they

are

alleged

to

have

violated.” Anderson v. Creighton, 483 U.S. 635, 638

(1987). Stated more pointedly, qualified immunity

generally protects “all but the plainly incompetent or

4

those who knowingly violate the law.” Malley v.

Briggs, 475 U.S. 335, 341 (1986).

As an initial matter, this is not a case of first

impression. Petitioner’s suggestion that a different

approach to the second prong of the qualified

immunity analysis is misguided. The structure of the

second prong is inherently fluid. The rights and facts

surrounding a purported rights violation follow the

appropriate application of law on a case-by-case basis

without altering the second prong itself. Petitioner’s

[Procedural] Due Process claim under the Fourteenth

Amendment regarding impermissibly suggestive

photographic lineups receives the same qualified

immunity analysis applied to any other purported

rights violation. Under Petitioner’s rationale, the

application of qualified immunity to any non-Fourth

Amendment rights violation claim would constitute a

case of first impression in contradiction to the

instruction provided by Anderson, 483 U.S. at 640

(1987). See also Malley, 475 U.S. at 341.

Second, the Fifth Circuit did not weigh

evidence in favor of the City/Parish Respondents.

Instead, the Fifth Circuit properly disregarded

immaterial, irrelevant, and speculative information

for its summary judgment review. Petitioner provided

irrelevant theories, speculation, and contradicted

opinions rather than an appropriate factual basis to

establish a genuine issue of material fact. As a result,

the courts correctly held the City/Parish Respondents

were entitled to qualified immunity and that

Petitioner failed to demonstrate a clearly established

5

rights violation. For these reasons, this Honorable

Court must deny the petition for writ of certiorari.

REASONS FOR DENYING THE PETITION

There is no compelling reason for review in this

matter. S. Ct. R. 10 provides in pertinent part that

“[r]eview on a writ of certiorari is not a matter of

right, but of judicial discretion” and will only be

granted for “compelling reasons.” A petition for a writ

of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the

misapplication of a properly stated rule of law. S. Ct.

R. 10. Petitioner’s attempt to create a compelling

reason by suggestion of a need for a different

approach to the qualified immunity analysis fails.

Thus, the rules of the Court indicate a denial of the

petition is the only appropriate decision.

First, the “clearly established” prong of the

qualified immunity analysis does not create a case of

first impression simply because Petitioner’s claim is

one of procedural due process under the Fourteenth

Amendment and photograph lineups.

Second, the undisputed material facts support

qualified immunity and summary judgment.

Petitioner’s attempt to disguise immaterial,

irrelevant, and speculative information as material

facts failed at the lower courts and should fail here as

well. Without a compelling reason, there is no basis

upon which Petitioner’s request should be granted.

6

I.

No different approach to qualified

immunity for Petitioner’s case.

Petitioner’s suggestion that the qualified

immunity analysis should change for his case is not

supported by binding precedent. For qualified

immunity purposes, courts must determine (1)

whether the facts a plaintiff has alleged make out a

violation of a constitutional right, and (2) whether the

right was “clearly established” at the time of the

defendant’s alleged misconduct. Pearson v. Callahan,

555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533

U.S. 194 (2001)). This Court has performed the twopronged qualified immunity analysis extensively.

While either prong may be addressed first, the twoprong approach remains the same.

The doctrine of qualified immunity shields

officials from civil liability so long as their conduct

“‘does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). A clearly established right is

one that is “sufficiently clear that every reasonable

official would have understood that what he is doing

violates that right.” Reichle v. Howards, 566 U.S. 658,

664 (2012) (internal quotation marks and alteration

omitted). “We do not require a case directly on

point, but existing precedent must have placed

the statutory or constitutional question beyond

debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741

(2011). Put simply, qualified immunity protects “all

but the plainly incompetent or those who knowingly

7

violate the law.” Malley, 475 U.S. at 341. (Emphasis

added). Mullenix v. Luna, 577 U.S. 7, 12 (2015).

a. Totality of circumstances confirm a

permissible identification process.

Petitioner contends that most qualified

immunity cases are limited to Fourth Amendment

claims. Therefore, the application of qualified

immunity to Fourteenth Amendment Due Process

involves a different qualified immunity analysis. This

logic is misdirected. Contrary to Petitioner’s

argument, the second prong of the qualified immunity

analysis does not fundamentally change dependent

upon the rights violation in question.

Rather, the analysis merely affords different

results on a case-by-case basis. Namely, the question

of impermissible suggestiveness involves the totality

of circumstances factors. Each case should be

“considered on its own facts.” Neil v. Biggers, 409 U.S.

188, 196-97 (1972)(citing Simmons v. U.S., 390 U.S.

377, 384 (1968)). Even if a photograph lineup was

found to be impermissibly suggestive, courts must

look at the “totality of the circumstances” and

determine

whether

the

identification

was

“nonetheless reliable.” Neil, 409 U.S. at 199. This

Court set forth five factors that courts should consider

in assessing the likelihood of misidentification or

reliability:

8

(1) the opportunity to view the criminal

at the time of the crime;

(2) the witness’s degree of attention;

(3) the accuracy of the witness’s prior

description of the criminal;

(4) the level of certainty demonstrated

by the witness at the confrontation; and

(5) the length of time between the crime

and the confrontation. Id. at 199–200.

These factors do not alter the qualified immunity

analysis. They simply lend themselves to the “clearly

established” right (second) prong of the qualified

immunity inquiry. Accordingly, this is not a case of

first impression.

Established precedent exists for police officers

and their bounds of reasonable and lawful

photographic lineup procedures – i.e., manipulating a

photograph to procure a false identification in

retaliation for an informant’s failure to cooperate in

an unrelated criminal investigation. I.e., Good v.

Curtis, 601 F.3d 393 (5th Cir. 2010).

Unlike Good, Petitioner offers no suggestion or

argument that the City/Parish Respondents

performed some overt and malicious act to “frame” or

retaliate against Petitioner. Such action is

undoubtably precluded from the benefit of qualified

immunity. Likewise, Petitioner did not contend that

the City/Parish Respondents manipulated or altered

the lighting of the photographs to change skin tone

depicted in the photographs prior to presentation to

the victim.

9

Instead, Petitioner simply believes his

photograph being used in three lineups is

impermissibly suggestive. Yet, the totality of

circumstances factors does not support Petitioner’s

belief.

First, the victim was the only person to have

seen her attacker in the house during the intimate

and substantial attack time giving the greatest

weight of credibility to her account as opposed to other

witnesses. Notably, the victim previously saw her

attacker at her door in advance of the attack.

Second and third, the victim’s degree of

attention and accuracy was high as she recalled a scar

on her attacker’s left shoulder, which coincidentally,

Petitioner also had. Petitioner’s scar was revealed to

the jury during the criminal trial. Conversely,

Stephanie Alexander’s witness account was far less

reliable, contradictory at times, and only based upon

a short period of time.

Fourth, the victim’s level of certainty was great

when she made the in-person identification such that

the City/Parish Respondents noticed the hair

standing up on the back of the victim’s neck and arms.

The victim was excitedly emotional upon seeing

Petitioner in a way that the City/Parish Respondents

took as genuine and unmanufactured.

Lastly, the victim’s identification of Petitioner

was merely five weeks after the attack. In comparison

to other cases where an identification is made many

10

months or something years after an attack, the

victim’s identification of Petitioner was extremely

favorable toward accurate recollection. Each of the

totality of circumstances factors lie heavily in the

City/Parish Respondents’ favor, and the analysis does

not create a different approach to qualified immunity.

b. Jurisprudence of the time shows no

“clearly established” right against

nonsuggestive lineups.

When looking at precedent or existing law

under the “clearly established” prong, courts must

consider the precedent or existing law at the time of

the officer’s conduct. District of Columbia v. Wesby,

583 U.S. 48, 63 (2018). At the time of the 1982-83

criminal investigation, the High Court condoned the

use of photograph lineups, recognized flaws in its

process, and afforded ways to remedy those flaws so

that lineups could be maintained as a legitimate and

reliable method of investigation. Referring to

Simmons, 390 U.S. at 383-84; Stovall v. Denno, 388

U.S. 293, 301-02 (1967)(abrogated on unrelated

criminal procedure issue regarding judgments of

conviction);

Prior to Petitioner’s arrest, the Court

scrutinized due process protections deriving from

suggestive identification procedures. I.e., Stovall, 388

U.S. 293 (1967); Simmons, 390 U.S. 377 (1968); Foster

v. California, 394 U.S. 440 (1969); and Coleman v.

Alabama, 399 U.S. 1 (1970). Each of these cases predated the Petitioner’s arrest, and each supports the

11

reasonableness of the City/Parish Respondent’s

identification process.

In Stovall, the Supreme Court held that a

defendant was not deprived of due process by virtue

of the fact that he was brought to the victim’s hospital

room for identification where the victim was not

physically able to visit jail in which defendant was

confined, whose husband had been killed by same

attacker, and who was required to be hospitalized for

major surgery in effort to save her life. Stovall v.

Denno, 388 U.S. 293 (1967). The Court reasoned:

The practice of showing suspects singly to

persons for the purpose of identification, and

not as part of a lineup, has been widely

condemned. (Footnote citations omitted).

However, a claimed violation of due process of

law in the conduct of a confrontation depends

on the totality of the circumstances

surrounding it, and the record in the present

case reveals that the showing of Stovall to

Mrs. Behrendt in an immediate hospital

confrontation was imperative. The Court of

Appeals, en banc, stated, 355 F.2d at 735:

‘Here was the only person in the world who

could possibly exonerate Stovall. Her

words, and only her words, ‘He is not the

man’ could have resulted in freedom for

Stovall. The hospital was not far distant

from the courthouse and jail. No one knew

how long Mrs. Behrendt might live. Faced

with the responsibility of identifying the

12

attacker, with the need for immediate

action and with the knowledge that Mrs.

Behrendt could not visit the jail, the

police followed the only feasible

procedure and took Stovall to the

hospital

room.

Under

these

circumstances, the usual police station

line-up, which Stovall now argues he

should have had, was out of the question.'

(Emphasis added). Stovall, 388 U.S. at

302.

Stovall lends itself against writ consideration

here. Despite the attempted murder stab wound

injury the victim suffered, the City/Parish

Respondents only offered unaltered photograph

lineup six-packs, and an in-person lineup of six men

to the victim. Petitioner was never singled-out for an

individual viewing to the victim whether by

photograph or in person. Much like the Stovall

officers, the City/Parish Respondents explained in

detail during their depositions that they were merely

following the path provided by the victim.

In Simmons, officers procured group snapshots

of the three suspects of an armed robbery event from

the suspects’ family members. Simmons, 390 U.S. at

380. The snapshots were shown separately to five

bank employees, who witnessed the robbery. Id.

Inevitably, all three suspects were identified through

the photographs. Id. at 380-81. At trial, the

photographs were not admitted into evidence. Id. at

381. Instead, the five employees positively identified

Simmons in court during the criminal trial. Id.

13

Simmons challenged the process of his identification

as being unconstitutional, and the Supreme Court

disagreed:

Despite

the

hazards

of

initial

identification by photograph, this

procedure has been used widely and

effectively in criminal law enforcement,

from

the

standpoint

both

of

apprehending offenders and of sparing

innocent suspects the ignominy of arrest

by allowing eyewitnesses to exonerate

them through scrutiny of photographs.

The danger that use of the technique

may result in convictions based on

misidentification

may

be

substantially lessened by a course of

cross-examination at trial which

exposes to the jury the method's

potential for error. We are unwilling

to prohibit its employment, either in the

exercise of our supervisory power or, still

less, as a matter of constitutional

requirement. Instead, we hold that each

case must be considered on its own facts,

and

that

convictions

based

on

eyewitness identification at trial

following a pretrial identification by

photograph will be set aside on that

ground only if the photographic

identification

procedure

was

so

impermissibly suggestive as to give rise

to a very substantial likelihood of

irreparable

misidentification.

This

14

standard accords with our resolution of

a similar issue in Stovall v. Denno, 388

U.S. 293, 301-02, and with decisions of

other courts on the question of

identification by photograph. See

e.g., People v. Evans, 39 Cal.2d 242

(1952). (Emphasis added). Simmons, 390

U.S. at 383-84.

Simmons and its rationale offer no awareness

of a violation of Petitioner’s rights through the

City/Parish Respondents’ investigative measures.

“Group snapshots” of the suspect procured through

the suspect’s family is a factual matter wholly

unrelated to this matter as the City/Parish

Respondents only utilized frontal “mug shot” and

profile “mug shot” photographs for the six-pack

lineups leading to Petitioner’s arrest. In fact,

Petitioner received a complete criminal jury trial

replete with cross examination of all the State’s

witnesses, including the victim and Respondent

Groht. Simmons does not support Petitioner’s

arguments.

In Foster, the lone eyewitness to a robbery

viewed a three-man, in-person lineup including two

men at 5’5” and 5’6” in height, respectively, while the

third, and eventual arrestee, was near 6’0” wearing a

leather jacket similar to that worn by the robber.

Foster, 394 U.S. at 441. After no identification was

made from the first lineup, the witness asked to speak

with the tall suspect. Id. After speaking with him, still

no identification was made. Id. Seven to ten days

later, police arranged for a second lineup involving

15

five people. Id. The tall suspect was the only person

repeated in the second lineup from the first lineup. Id.

at 441-42. Only after the second lineup did the victim

make a positive identification. Id. at 442.

Conversely, the victim in this matter made a

startling and excited reaction in seeing Petitioner the

first and only time she viewed an in-person lineup of

six men. Prior thereto, the victim asked officers for a

side or profile view photograph of Petitioner, whom

she pointed out in one six-pack photograph lineup.

Officers responded with a six-pack of profile views

including that of Petitioner without their indication of

which was Petitioner. Across this process, the victim

did not receive any information from the City/Parish

Respondents about Petitioner or his placement within

the lineup. At the criminal trial, the victim even

testified of her frustration with the lack of

communication by the officers during the

identification process. Further contrasted from

Foster, Petitioner was not distinguishable from other

men in the photograph or in-person lineups based

upon clothing or physical features. Suggestiveness

occurs, among other ways, when an individual is in

“some way emphasized” or the police indicate that

“one of the persons pictured committed the crime.” Id.

Equally, Petitioner and his photograph were never

presented to the victim singly or else in any manner

other than along with five other photographs or

people with similar features and characteristics.

Considering these facts, there was no perceived

suggestiveness in the lineups or else “coaching” by the

City/Parish Respondents that align this matter with

Foster.

16

In Coleman, a man was shot by three attackers

while changing a flat tire on the side of the road.

Coleman, 399 U.S. at 4. The victim was unable to

identify his attackers from mug shot photographs. Id.

at 5. But the victim identified two individuals

believed to be involved in the attack via six-man, inperson lineup two years after the attack. Id. at 4.

Despite the questions of reliability of the

identifications based upon the defendants’ lack of

counsel, 1 the Supreme Court recognized that the

victim’s identifications were not at all induced by the

conduct of the lineup. Id. at 5-6. In fact, the record

was “utterly devoid of evidence” that anything the

police said or did prompted the victim’s

identifications. Id. at 6.

Likewise, the City/Parish Respondents did not

prompt the victim’s identification of Petitioner.

Again, the victim testified before the criminal trial

jury of her frustration with the stoic and reticent

manner of the City/Parish Respondents during their

presentation of lineups.

Taking these cases into consideration, there is

nothing indicative of the City/Parish Respondents’

behavior that resembles an impermissibly suggestive

identification process. While cases do not have to be

“directly on point,” the “existing precedent must have

placed the statutory or constitutional question beyond

debate.” Taylor v. Barkes, 575 U.S. 822, 825

(2015)(quoting Ashcroft, 563 U.S. at 741). At

1 Lack of counsel is not an issue here, nor has it been raised in

this matter.

17

minimum, much debate remains against Petitioner’s

position.

Petitioner concludes with the suggestion that

the five-factor totality of circumstances test does not

require factually similar cases to nevertheless satisfy

the second prong of the qualified immunity analysis.

Referring to Petition for Writ of Certiorari at 20-21

(referencing Neil v. Biggers, 409 U.S. 188 (1972);

Manson v. Brathwaite, 432 U.S. 98 (1977). Yet,

Petitioner does not reconcile his theory with the

inherent spirit of the “clearly established” prong. At

this granular level, the application of instructive

jurisprudential guidance affords the roadmap to a

proper determination of “clearly established” Due

Process rights during a criminal identification

process. This guidance was in place during

Petitioner’s 1982-83 investigation. The qualified

immunity analysis remains complete and unchanged

for Petitioner’s claims now. Without a compelling

reason to grant Petitioner’s request for writ of

certiorari, this Court must deny said request.

II.

Irrelevant, immaterial, and

information was not weighed.

speculative

Petitioner alleges that the Fifth Circuit

improperly weighed facts in a light unfavorable to the

Petitioner. However, the courts did not weigh facts at

all. The City/Parish Respondents’ undisputed

material facts were not impacted by Petitioner’s

unsupported arguments. Petitioner supplied only

immaterial information, irrelevant opinions, and

speculation to challenge summary judgment. The

effort failed.

18

To defeat summary judgment, the nonmoving

party “must do more than simply show that there is

some metaphysical doubt as to the material facts ….

Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party,

there is no ‘genuine issue for trial.’” Scott v. Harris,

550 U.S. 372, 380 (2007) (citing Matsushita Elec.

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

586-87 (1986) (footnote omitted)).

Here, Petitioner only raises an abstract doubt

against the material facts. None of the information

Petitioner alleges is material to Petitioner’s

classification as a person of interest in the

investigation or otherwise relevant to the City/Parish

Respondent’s investigative efforts. Therefore, the

Fifth Circuit determined with all reasonable

inferences in favor of the nonmovant that a rational

factfinder could determine there existed a genuine

issue of material fact against summary judgment.

a. Immaterial facts neutral in nature do not

assist the summary judgment analysis.

Summary judgment is proper if “the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a

judgment as a matter of law.” F.R.C.P. Rule 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A

fact is material if “its resolution in favor of one party

might affect the outcome of the lawsuit under

19

governing law.” Hamilton v. Segue Software Inc., 232

F.3d 473, 477 (5th Cir. 2000) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Courts

must view facts in the light most favorable to the

nonmoving party but only if there is a “genuine”

dispute as to those facts. Scott, 550 U.S. at 380. An

issue is “genuine” if the evidence is sufficient for a

reasonable jury to return a verdict for the nonmoving

party. Hamilton, 232 F.3d at 477. The “mere existence

of some alleged factual dispute between the parties

will not defeat an otherwise properly supported

motion for summary judgment” since the actual

requirement is that “there be no genuine issue of

material fact.” Anderson, 477 U.S. at 247-48.

Here, Petitioner reurges nine purported facts

he contends exonerated or otherwise excluded him

from the criminal investigation. See Petition for Writ

of Certiorari at 17. However, the contention falls short

of its proposition. The first four “facts” reflect an

absence of specific things at the scene of the crime: (1)

no physical evidence connecting Petitioner to the

scene, (2) no fingerprints from the scene matched

Petitioner, (3) no clothing of Petitioner was at the

scene, and (4) no blood or serological material of

Petitioner was at the scene. Each of these four points

are immaterial and neutral because there was no

physical evidence, fingerprints, clothing, or

blood/serological material found matching anyone

during the investigation. Eyewitness evidence and

criminal informant information were the only

remaining tools investigating officers had available to

them. Petitioner’s facts are immaterial because they

20

are neutral facts that equally incriminate and

exonerate no one.

Petitioner’s fifth and sixth points regarding

Stephanie Alexander’s witness account to the

investigation are exaggerated and immaterial.

Namely, Alexander’s observations were drastically

minimal in time and substance compared to the

victim’s encounter, at times conflicted with the

victim’s account or else was contradictory in itself.

Alexander’s accuracy and credibility were not strong.

The City/Parish Respondents were reasonable in

their investigative steps to weigh Alexander’s

credibility unfavorably in comparison to the victim as

the investigation wore on.

Petitioner’s seventh and eighth points involve

attention to Petitioner despite the photographs of two

individuals within the series of lineups having been

called out by the victim. However, the City/Parish

Respondents described and contrasted the victim’s

statements about those other two photographs in

contrast to what the victim said about the photograph

of Petitioner. Specifically, the victim indicated that

each of those other two photographs depicted a

singular feature (i.e., nose, lips) similar to her

attacker, but not the person as a whole within the

photograph. The comparison was effectively described

as a continuation of the Identi-Kit created at the

inception of the investigation. Conversely, only the

photograph of Petitioner was pointed out as

wholistically looking like the person that attacked her

but-for a different hair style.

21

Lastly, Petitioner takes issue with the victim’s

use of a piece of paper to cover hair of the photograph

where she told officers the hair was different. Now,

for the first time, Petitioner raises a question as to

who utilized the piece of paper to cover the hair. See

Petition for Writ of Certiorari at 18. The police report

undisputedly indicates the victim utilized a piece of

paper to cover the hair. Nothing contradicts that

undisputed fact, and no issue has been raised on that

fact until now. If the suggestion is that the

City/Parish Respondents utilized the paper in a way

to manipulate the photographs to orchestrate a false

identification, the argument fails for two reasons.

First, there is no evidence of any investigating officer

doing so. Second, even if it could be speculated as true,

such an act is not the physical manipulation of

photographs that the jurisprudence calls out as being

impermissibly suggestive. The manipulation of

photographs is limited to digital or electronic altering

and editing of a photograph. Nevertheless, the

evidence reflects the victim initiated the idea and the

implementation of covering hair styles.

Each of these nine points are immaterial to the

facts that led to Petitioner’s arrest. Likewise, none of

the nine points create a genuine issue of material fact

that the identification process was somehow

impermissibly suggestive. Without more, Petitioner

offers neither material facts or erroneous factual

findings by the courts. Summary judgment was and

remains appropriate.

22

b. Irrelevant and speculative opinions do

not assist the factfinder.

There must be sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that

party. Anderson, 477 U.S. at 249 (citing First

National Bank of Arizona v. Cities Service Co., 391

U.S. 253, 288-89 (1968)). The evidence cannot be

“merely colorable” and must be significantly

probative. Anderson, 477 U.S. at 249-50 (citing

Dombrowski v. Eastland, 387 U.S. 82 (1967) (per

curiam) and Cities Service, supra, at 290). Here,

Petitioner provided a surface-level assertion that the

photograph lineup methodology was flawed, without

providing any useful evidence to support the

assertion.

Petitioner provided opinions from Gary Wells

regarding the identification process. Wells’ opinions

focused on the “repeated suspect effect” and

speculation that the identification process was flawed

if officers said anything to the victim during the

lineups to suggest Petitioner as the attacker. No

evidence was presented to support any investigating

officers said or did anything suggestive toward the

victim throughout the investigation.

The theory of “repeated-suspect effect” was not

established, studied, or applied in police

investigations in 1982-83. Petitioner, through Wells,

offered no specific genesis for the theory, but Wells’

singular reference to a 2021 publication demonstrates

the irrelevance of the theory’s application to the

City/Parish Respondents’ investigative steps or intent

23

nearly forty years prior thereto. The mere concept of

such hindsight analysis would have been unduly

prejudicial and far outweighing any probative value,

if any.

Most importantly, the study relied upon by

Wells in forming his opinion was published in 2021,

thirty-eight years after the detectives’ investigation

concluded. This type of hindsight information was

correctly determined to be irrelevant and immaterial,

which further supports that there was not enough

sufficient information at the time of the investigation

to put the City/Parish Respondents on notice that the

photograph lineups could have violated Petitioner’s

rights.

Additionally, Wells failed to acknowledge that

the victim requested a profile photograph, but he did

implant information that was not supported by

factual evidence. For example, Wells opined that the

request for a profile photograph was not “totally [the

victim’s] idea.” There is no document, witness, or

other form of evidence to support the conclusory

contention. In fact, the victim’s testimony

memorialized within the criminal trial transcript

directly contradicts such a notion. The transcript was

made an exhibit to the Motion for Summary

Judgment.

Lastly, the Fifth Circuit did not make any

credibility determinations in its summary judgment

review. Petitioner asserts that the Fifth Circuit made

a credibility determination regarding the Petitioner’s

scar described by the victim and shown at trial.

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Petition for Writ of Certiorari at 19. However, this

assertion is inaccurate. The Fifth Circuit did not

weigh credibility on that point. Any credibility

assessment on that point was solely the jury’s

determination. Rather, the undisputed fact remains

that Petitioner revealed a shoulder scar in open court

after the victim described what she said she observed

while she was being raped. It is further undisputed

that the jury subsequently found Petitioner guilty of

the criminal charges brought against him. Therefore,

the Fifth Circuit did not weigh credibility, but merely

followed the undisputed facts that arrive at qualified

immunity and the absence of a clearly established

right under the totality of circumstances of the

criminal investigation.

For the above reasons, Petitioner could not

overcome the burden for qualified immunity so as to

defeat summary judgment as the facts and evidence

did not point to any genuine issues of material fact or

any constitutional or statutory violations. As a result,

the Fifth Circuit was correct in affirming summary

judgment in favor of the City/Parish Respondents and

that decision should not be disturbed.

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CONCLUSION

For the foregoing reasons, this Honorable

Court should deny the petition for writ of certiorari.

Respectfully Submitted,

Michael P. Schillage (#35554)

Counsel of Record

222 St. Louis Street, Suite 902

Baton Rouge, Louisiana 70802

Tel.: (225) 389-3114

Email: mschillage@brla.gov

Counsel for Respondents

May 13, 2026