Opposition Brief — Devenpeck v. Alford

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No. 03-710 MAR 10 2004

[| OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

GERALD DEVENPECK, a Washington State Patrol Officer,

JOI HANER, a Washington State Patrol Officer,

and their mantal communities,

Petitioners,

v.

JEROME ANTHONY ALFORD,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UniTeD StaTES Court OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

R. Stuart PHILLIPS

Attorney for Respondent

19307 Eighth Ave. NE, Suite B

Poulsbo, Washington 98370

(360) 598-6232

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COUNSEA PRESS

(800) 274-3321 + (800) 359-6859

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TABLE OF CONTENTS

Table of Cited Authorities

Statement Of The Case

A. Factual Background

B. Procedural History

Summary Of The Argument

Reasons For Denying The Petition

l.

This Case Does Not Merit Review Because

The Decision Below Applies An Objective

Standard For Qualified Immunity That

Balances The Rights Of Citizens With

ee

Review Is Not Merited Due To The

Speculative Possibility That The Officers

Held An Erroneous, Subjective Belief As To

Qualified Immunity.

Conclusion

ll

TABLE OF CITED AUTHORITIES

Cases sient

Alford v. Haner, 333 F.3d 972 (9" Cir. 2003) ..... )

Anderson v. Creighton, 483 U.S. 635 (1987) ..... 5

Avery v. King, 110 F.3d 12 (6" Cir. 1997) ........ 9

Beck v. Ohio, 379 U.S. 89 (1964) .........50055. 6

Beier v. Lewiston, 354 F.3d 1058 (9" Cir. 2004) ... 9, 10

Biddle v. Martin, 992 F.2d 673 (7 Cir. 1993) .... 7

Bingham vy. City of Manhattan Beach, 341 F.3d 939

ta? 2.) DPT TT) 9

Davis v. Scherer, 468 U.S. 183 (1984) ........... 6

Harlow vy. Fitzgerald, 457 U.S. 800 (1982) ...... 5,7, 11

Hope v. Pelzer, 536 U.S. 730 (2002) ............ 11

Parratt v. Taylor, 451 U.S. 527, 535, overruled in

part on other grounds, Daniels v. Williams,

474 U.S. 327 (1906) onc ccvcccvccscssssssess 5

Richardson vy. Bonds, 860 F.2d 1427 (7" Cir. 1988) .. 8

Saucier v. Katz, 533 U.S. 194 (2001) ............ 6, 11

ill

Cited Authorities

Page

Sheehy v. Plymouth, 191 F.3d 15 (1* Cir. 1999) ...7, 8,9

Soldal v. Cook County, Ill., 506 U.S. 56 (1992) ... 5

Trejo v. Perez, 693 F.2d 482 (5" Cir. 1982) ....... 8

United States v. Rambo, 789 F.2d 1289 (8" Cir.

Ea ebebebecccccccesoceccceess 9

United States v. Reed, 349 F.3d 457 (7 Cir. 2003) .. 9

Vance v. Nunnery, 137 F.3d 270 (5" Cir. 1998) .... vy)

Washington v. Flora, 845 P.2d 1355 (Wash. Ct. App.

PME CEEECUESSGbSecoeccccccccccecees 2

Whren v. United States, 517 U.S. 806 (1996) ..... 6

Wood v. Strickland, 420 U.S. 308 (1975) ......... 7

United States Constitution

Fourth Amendment ...............cccceecee. passim

Statutes

i eee eee ce deecceccccecccocces 3,5

Eee es Cebeccccceccocceccces 3

l

Pursuant to Supreme Court Rule 15, Respondent, Jerome

Anthony Alford, submits this Brief in opposition to the

petition for a writ of certiorari.

STATEMENT OF THE CASE

Under the Fourth Amendment’s protection against

unreasonable search and seizure, a constitutional violation

occurs if the arresting officer lacked “probable cause” to make

the arrest. This means that an arrest is unlawful if, using the

objective standard of a reasonable law enforcement officer,

the facts did not justify an arrest.

In this case, the law was clearly established that tape-

recording one’s public interactions with law enforcement was

not a violation of the Washington Privacy Act. The officers’

later attempts to justify the arrest based on conduct separate,

and distinct, from that giving rise to the arrest were rebuffed

by the Court of Appeals. Although the officers can be entitled

to qualified immunity for using improper legal nomenclature

in charging or booking if the underlying conduct was

criminal, they are not entitled to rationalize a bad arrest by

dredging up any illegal conduct that the plaintiff might have

(at some time) committed. This is the rule in the clear

majority of Circuits that have considered the issue, and

comports with the precedents, and spirit, of qualified

immunity.

A. Factual Background

On the evening of November 22, 1997, Tony Alford, an

employee at the Puget Sound Naval Shipyard, was on his

way to his second job as a bouncer. App. 6a. Noticing a car

broken down by the side of the road, he stopped and offered

to help. App. 6a. After a few minutes, he left, but only after

2

helping the young men jack up their car, and giving the

stranded motorists a flashlight to use. App. 6a. Immediately

after he left, he was followed and stopped by Joi Haner, a

Washington State Trooper, for questioning about his

“wig wag” headlights. App. 6a-7a.

In order to protect himself from harassment and in order

to use as evidence, Mr. Alford was carrying a tape-recorder

in his car. App. 7a. When stopped that night, he turned it on.

App. 7a.

When questioned about his headlights, Mr. Alford

informed the Trooper that a local dealer had just installed a

new alarm system that very day, and that he was unsure of

how it operated. App. 7a.

Sergeant Devenpeck arrived on the scene, and he and

Haner came to the car while Devenpeck interrogated

Mr. Alford about his headlights. App. 7a. After several

minutes, Devenpeck noticed that Mr. Alford had been tape-

recording the traffic stop. App. 7a. He immediately placed

Mr. Alford under arrest for “illegal tape recording,” stating

that he could not record the stop without the officer’s consent.

App. 7a.

Mr. Alford told the officers that he had been through

this before with the Kitsap County Sheriff’s Office, and had

with him both a copy of the applicable statute and a copy of

Washington v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992),

a Washington Court of Appeals case holding that the Privacy

Act does not protect police officers on the job. App. 7a. The

officers would not look at the case. App. 7a.

3

At the jail, Mr. Alford was charged with a violation of

RCW 9.73.030, illegally recording a private conversation

without consent. Mr. Alford’s car was towed and impounded,

and he was forced to spend the night in jail. App. 8a. A District

Judge later dismissed both the traffic citation and the charge.

App. 8a.

B. Procedural History

On November 12, 1999, Mr. Alford filed an action under

42 U.S.C. § 1983 alleging that the arrest, incarceration and

prosecution violated his rights under the Fourth Amendment,

as well as for certain state law claims. App. 8a.

On November 30, 2000, a defense Motion for Summary

Judgment was granted in part, and denied in part, removing

the State Patrol as a Defendant, but allowing the claims

against Officers Devenpeck and Haner to proceed, holding

that it was clearly established that tape-recording police

officers in the public performance of their duties was not

criminalized by the Washington Privacy Act. App. 39a.

At trial on January 2-5, 2001, Senior District Judge

Robert J. Bryan instructed the jury that the law was clearly

established at the time of the incident that Mr. Alford had

committed no crime. Despite this, the jury found for the

Defendants. App. 27a. A Motion for Judgment as a Matter of

Law, or in the alternative, For a New Trial was denied.

App. 8a.

The Ninth Circuit Court of Appeals reversed this

decision, holding that no reasonable officer could have

believed tape-recording the police during public performance

4

of official duties constituted a “private conversation.”

App. 15a. A Petition for Rehearing En Banc was denied.

App. 32a.

SUMMARY OF THE ARGUMENT

The underlying action was based on the simple premise

that public officials in the public performance of their official

duties are not protected by the Privacy Act. Since this issue

was specifically addressed by the Washington Court of

Appeals almost a decade ago, the law was clearly established

at the time of this arrest. Additionally, given the state of the

law, and the admissions of the Officers at trial, no reasonable

officer could have believed that Mr. Alford was violating

the law by this public taping.

The Court of Appeals correctly struck a balance between

the rights of the public and the practicalities of policing,

allowing qualified immunity only where the same conduct

for which the person was arrested furnished probable cause

to arrest. By doing so, the Ninth Circuit adeptly avoided

injecting an impermissible element of subjectivity into the

qualified immunity analysis. This was in keeping with the

holdings of this Court, as well as a majority of the Circuit

Courts of Appeals.

Additionally, a subjective misunderstanding on the part

of the officers regarding qualified immunity does not make

the law unclear. Rather, this Court’s precedent requires that

the right be clearly established, and that a standard of

objective reasonableness be met.

5

REASONS FOR DENYING THE PETITION

The Petition should be denied for one central reason —

requiring probable cause to exist for a closely related offense

is the only way te maintain the standard of objective

reasonableness that has served as the cornerstone of qualified

immunity analysis.

1. THIS CASE DOES NOT MERIT REVIEW

BECAUSE THE DECISION BELOW APPLIES AN

OBJECTIVE STANDARD FOR QUALIFIED

IMMUNITY THAT BALANCES THE RIGHTS OF

CITIZENS WITH PRACTICAL POLICING

“When government officials abuse their offices,

‘action[s] for damages may offer the only realistic avenue

for vindication of constitutional guarantees.” Anderson vy.

Creighton, 483 U.S. 635, 638 (1987) (quoting Harlow vy.

Fitzgerald, 457 U.S. 800, 814 (1982)).

Liability under 42 U.S.C. § 1983 requires proof of two

essential elements: first, the conduct complained of was

committed by a person acting under the color of state law;

second, that the conduct deprived the person of rights,

privileges or immunities secured by the Constitution of laws

of the United States. Parratt v. Taylor, 451 U.S. 527, 535,

overruled in part on other grounds, Daniels v. Williams,

474 U.S. 327 (1986). A search and seizure that violates the

Fourth Amendment is actionable under 42 U.S.C. § 1983.

Soldal v. Cook County, Iil., 506 U.S. 56 (1992).

The Fourth Amendment provides, in part: “The right of

the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

6

be violated... .” U.S. Const. amend. IV. The Fourth

Amendment prohibits arrests without probable cause.

See Beck v. Ohio, 379 U.S. 89, 90-91 (1964). Since Mr. Alford

was detained, arrested, and then incarcerated there is no

question but that he was seized, and the protections of the

Fourth Amendment were triggered. See Saucier v. Katz,

533 U.S. 194 (2001); Whren v. United States, 517 U.S.

806 (1996).

Law enforcement may yet escape liability for an unlawful

seizure if their conduct falls within the contour of

the judicially-created “qualified immunity” standard.

The doctrine of qualified immunity “protects governmental

officials performing discretionary functions . . . from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known”. Saucier, ibid.

This Court has long rejected forays into the subjective

intent of the arresting officer, instead focusing on an objective

standard. Davis v. Scherer, 468 U.S. 183, 190 (1984)

(“Whether an official may prevail in his qualified immunity

defense depends upon the objective reasonableness of [his]

conduct as measured by reference to clearly established law.”)

In the instant case, Petitioners attempt to cloak their

actions with objective reasonableness based on their own

subjective beliefs as to the legality of their conduct.

App. 13a. Additionally, they attempt to mis-cast the

prevailing standard of the Ninth Circuit Court of Appeals as

a subjective one, when it is clear that the test iterated actually

avoids a subjective inquiry. Pet. at 15; App. 13a.

7

As a preliminary, there is no requirement that an officer

be given qualified immunity if probable cause does not exist

for the crime charged. However, Courts have adopted the

“related offense” doctrine to afford immunity when the officer

has mislabeled or mischaracterized the unlawfulness of

objectively unlawful conduct.

This is doctrinally consistent with this Court’s approach

to qualified immunity dating back to Harlow. Prior to that,

qualified immunity was synonymous with “good faith

immunity, and carried both an objective and a subjective

component. See Wood v. Strickland, 420 U.S. 308, 322

(1975). After observing that this subjective element too-

frequently precluded an early decision on qualified immunity,

the Court abandoned it, adopting the now-familiar

formulation that immunity lies “insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

457 US. at 818.

The related offense doctrine is “consistent with the

teachings” above, as it precludes allowing an officer to

argue about his intentions, or reasons, regarding charging.

Sheehy v. Plymouth, 191 F.3d 15, 20 (1* Cir. 1999).

An officer’s “erroneous legal description of the basis for an

arrest should not expose the officer to liability if another

officer would have concluded that there was probable cause

to arrest for a related offense on the basis of the same

conduct.” Jd. Limiting the inquiry to the “same conduct”

as that which formed the basis for the actual arrest allows

the officer to “choose which crime she will charge without

having to charge every single offense sustainable on the

facts,” Biddle v. Martin, 992 F.2d 673, 677 (7™ Cir. 1993),

but prevents the officer from later offering “ex post facto

8

extrapolations of all crimes that might have been

charged... .” Richardson v. Bonds, 860 F.2d 1427, 1431

(7" Cir. 1988). Such a broadening would “open the door” to

endless explanations, rationalizations, and justifications.

Sheehy, 191 F.3d at 21.

As the Fifth Circuit has pointed out, this inquiry does

not depend upon a subjective component. By requiring a

nexus between the charged offense and the later justification,

the Court noted that the “related” requirement “obviates the

need for a delicate subjective inquiry, likely to turn on little

more than self-serving statements and speculation.” Trejo v.

Perez, 693 F.2d 482, 486 (5" Cir. 1982). Thus, the relevant

inquiry is: Could the conduct that served as the basis of the

arrest provide probable cause for another charge to a

reasonable officer in the same situation? /d.

Cases applying this doctrine show its eminent

practicality. In Sheehy v. Plymouth, 191 F.3d 15 (1* Cir.

1999), the Court addressed an arrest made after a fight

between neighbors. /d. at 17-18. The officer initially stated

that Mr. Sheehy was under arrest for failing to give him name;

by the time they reached the precinct, the charge of disorderly

conduct and assault with a dangerous weapon. /d. at 18.

These charges were dismissed. /d.

The District Court applied the related offense doctrine,

and granted qualified immunity to the officer. Jd. The Circuit

Court agreed that the related crimes doctrine should be the

standard, but noted that “the crime with which the arrestee

is charged and the crime offered to the court as a justification

for the arrest must relate to the same conduct.” 191 F.3d

at 19-20. Additionally, the two crimes must be “directed

generally at prohibiting the same type of conduct.” /d. The

9

Court then found that “Sheehy’s interaction with Officer

Quinn was the sole basis for the arrest,” and that Quinn

“relied at the police station on prior conduct of Sheehy that

unmistakably did not serve as the basis for the challenged

arrest.” /d. at 20-21.

In the Seventh Circuit, probable cause must exist on a

“closely-related charge,” that is, one that arises from

“the same set of facts” that gave rise to the arrest. United

States v. Reed, 349 F.3d 457, 462-63 (7" Cir. 2003). The Sixth

Circuit has adopted this same position in allowing qualified

immunity in a case where there was probable cause for a

“related offense” that arose from the same conduct. Avery v.

King, 110 F.3d 12 (6" Cir. 1997).

In the Eighth Circuit, “Where a defendant is arrested for

the wrong offense, the arrest is still valid if probable cause

existed to arrest the defendant for a closely related offense.”

United States v. Rambo, 789 F.2d 1289, 1294 (8" Cir. 1986).

Even in the Fifth Circuit, the “related offense” must arise

from the same conduct as the charged offense. See Vance v.

Nunnery, 137 F.3d 270 (5 Cir. 1998). These formulations

are identical to that adopted by the Ninth Circuit in Alford v.

Haner, 333 F.3d 972 (9" Cir. 2003).

Additionally, while Petitioners cite to Bingham v. City

of Manha:tan Beach, 341 F.3d 939 (9" Cir. 2003)

(Bingham I1), as evidence that the Ninth Circuit itself is in

conflict, both that case, and subsequent cases within the

Circuit, show that the “closely-related offense” doctrine is

being applied without problems. See, e.g., Beier v. Lewiston,

354 F.3d 1058, 1065-66 (9" Cir. 2004) (denying qualified

immunity to officers who improperly applied terms of a

domestic violence order).

10

Applying this Court’s precedents, and closely adhering

to the policies underlying the doctrine of qualified immunity,

the lower court correctly declined to rewrite the doctrine of

qualified immunity to allow either an inquiry into the officers’

subjective intentions, or an ex-post-facto search for

justification for an arrest. Thus, there is no need for this Court

to grant review to perform the type of “subjective inquiry’

that it has rejected in so many cases. As the Ninth Circuit

stated in Beirs, “To shift the focus of the inquiry, as the

officers would have us do, away from their actual actions to

hypothetical decisions they would have faced had they

behaved reasonably cannot be reconciled with the policy

precepts underlying the qualified immunity doctrine.”

354 F.3d at 1071. Based on this, the Court should decline

review, or summarily affirm the decision below, as fully in

keeping with the standards and principles of this Court’s

Fourth Amendment jurisprudence.

2. REVIEW IS NOT MERITED DUE TO THE

SPECULATIVE POSSIBILITY THAT THE

OFFICERS HELD AN_- ERRONEOUS,

SUBJECTIVE BELIEF AS TO QUALIFIED

IMMUNITY.

Further, Petitioners improperly conflate the issues of

“clearly established right” and qualified immunity.

Petitioners’ contention may be summarized as follows: If the

officers had the subjective belief that they could later justify

the arrest based on unrelated conduct, the law was not “clearly

established,” and qualified immunity lies. Pet. at 21-27. This

logic is flawed from inception.

If the contours of the right being protected were

sufficiently clear, the burden shifts to the officer to show

1]

objective reasonableness. Saucier v. Katz, 533 U.S. 194, 202

(2001). Here, the officers attempt to argue that if the contours

of their immunity are not clear, they cannot be held liable.

This finds support nowhere in the law. See generally Hope

v. Pelzer, 536 U.S. 730 (2002) (reiterating standard).

This Court has always recognized that the clearly

established law requirement is a component of the qualified

immunity analysis, not vice versa. In fact, this Court has

observed, “If the law was clearly established, the immunity

defense ordinarily should fail, since a reasonably competent

public official should know the law governing his conduct.”

Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982);

see also Saucier, 533 U.S. at 201. If the court finds that the

right was clearly established, the inquiry turns to whether a

reasonable officer would have known his conduct violated

that right. If this follows, qualified immunity lies.

See generally See Saucier v. Katz, 533 U.S. 194 (2001).

The analysis adopted by this Court makes it clear that

even if the contours of what is essentially an affirmative

defense are subject to argument, that does not impact the

unlawfulness of the conduct, but merely the ability to find

civil liability. If the right was clearly established, the right

was violated, and if the conduct does not meet the standard

of objective reasonableness, the analysis ends.

Indeed, to adopt the Petitioners’ argument would be to

inject an impermissible subjective element into the analysis.

Once again, Petitioners attempt to put the focus on what they

may, Or may not, have subjectively believed at the time of

the arrest. This does not even approach the objective standard

of reasonableness required of them, and certainly does not

merit review by this Court.

12

CONCLUSION

In summary, the Ninth Circuit’s decision fully comports

with the precedent, and aims, of the qualified immunity

doctrine. Any further expansion of the “closely related

offense” doctrine would open a Pandora’s box of subjectivism

and rationalization that would have the potential to eviscerate

the protections of the Fourth Amendment. For all the reasons

discussed above, the Petition for Certiorari should be denied.

Respectfully submitted,

R. STUART PHILLIPS

Attorney for Respondent

19307 Eighth Ave. NE, Suite B

Poulsbo, Washington 98370

(360) 598-6232