# Opposition Brief — Warren v. City of Lincoln > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1162%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1091 ## Text ——, l Supreme Court, US. > FILED No. 88-1633 MAY 1 : epi k SPANIOL, JR, i In The Supreme Court of the United States October Term, 1988 + JACKSON WARREN, Petitioner, VS. CITY OF LINCOLN, NEBRASKA, JAMES BREEN, SANDRA L. MYERS, and DAVID BEGGS, Respondents. » BRIEF OF RESPONDENTS IN OPPOSITION TO THE PETITION FOR WRIT OF CERTIORARI > RICHARD D. Sievers of Bruckner, O’Gara, Keating, Sievers & Hendry, P.C. 530 South 13th Street, Suite A Lincoln, Nebraska 68508 (402) 475-8230 Attorneys for Respondents COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964 OR CALL COLLECT (402) 342-2831 SSA ne RO COS i ETO - cm et nn a, QUESTION PRESENTED FOR REVIEW In a civil rights action is it proper for the Court of Appeals to apply an objective standard and determine that the arresting officers had probable cause for the arrest, despite the officers’ subjective belief that probable cause was lacking. li TABLE OF CONTENTS Page Question Presented for Review ..................-- i Table of Contents... . very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent. 97 L.Ed. at 531 (citations omitted). 26 Accordingly, it does not seem unfair to ask where this leaves Detective Breen, Sergeant Beggs, and Officer Myers. How can they be personally liable for violating a constitutional right which is allegedly clearly established, when three years of litigation have failed to produce agreement among nine judges of the Court of Appeals on whether a clearly established constitutional right was violated. This is no criticism of the Court of Appeals. Instead, it points out the impossibility of expecting the police officer on the street to divi e in a matter of min- utes what eminently qualified, experienced, and trained legal minds cannot agree upon after wrestling with the matter for years. Thus, Breen, Beggs and Myers did not infringe any clearly established right during their brief contact with Jackson Warren. He was taken into custody under a lawful warrant, the physical characteristics were taken under Nebraska statute, and the only jury issue, (the length of the detention) was decided adversely to petitioner. The case does not deserve certiorari, and the respondents respectfully ask the Court to end the case by denial of the writ. y% _ CONCLUSION This case has been tried to a District Court jury and examined during two appellate proceedings in the Eighth Circuit Court of Appeals. There is a record of uncon- troverted facts which clearly supports the conclusion that the officers had probable cause to arrest Warren for the break-in, even though the officers’ honest and sincere opinion was that they did not have probable cause. Whether there was a “second arrest” was not decided by 27 the Court of Appeals, as it was unnecessary for a com- plete resolution of the case. An arrest is an arrest, and once it has occurred, liberty is already lost. At that point, the constitutional issues become the length and condi- tions of the detention. Here, there was an admittedly valid arrest on an unchallenged warrant, and the length of the detention was submitted to the jury and resolved against Warren as being reasonable. Police officers are only liable for violations of clearly established constitutional rights. Where three years of litigation fail to generate agreement among the judiciary, it is impossible to say that rights were clearly established to the point that the police officers are Jiable. The finding of probable cause by the Court of Appeals is a factual determination. It neither changes old law nor makes new law. This case simply represents a factual disagreement in the Eighth Circuit which does not require resolution by the highest court in the land. This case does not have the requisite constitutional scope to justify certiorari. There- fore, respondents respectfully request that the writ be denied. Respectfully Submitted, RicHARD D. SIEVERS OF BRUCKNER, O’GarRA, KEATING Sievers & HeEnpry, P.C. 530 South 13th Street, Suite A Lincoln, Nebraska 68508 (402) 475-8230 Attorneys for Respondents --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1162%3A2. Public record. Not legal advice.