Opposition Brief — Muehler v. Mena

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No. 03-1423

Supreme Court of the Anited States

DARIN L. MUEHLER and ROBERT BRILL,

Petitioners,

vs.

IRIS MENA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JAMES S. MULLER PAUL L. HOFFMAN

Law Offices of James S. Muller Counsel of Record

nore ERWIN CHEMERINSKY

3435 — MICHAEL S. MORRISON

Los Angeles, California 90010 Schonbrun, DeSimone, Seplow,

(213) 381-3299 Harris & Hoffman LLP

723 Ocean Front Walk

Venice, California 90291

(310) 396-0731

Attorneys for Respondent

IRIS MENA

we Se C3) o> 1013 « 949 720-1510

No. 03-1423

IN THE

Supreme Court of the United States

DARIN L. MUEHLER and ROBERT BRILL,

Petitioners,

vs.

IRIS MENA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JAMES S. MULLER PAUL L. HOFFMAN

Law Offices of James S. Muller Counsel of Record

~~ ERWIN CHEMERINSKY

439 —— MICHAEL S. MORRISON

Los Angeles, California 90010 Schonbrun, DeSimone, Seplow,

(213) 381-3299 Harris & Hoffman LLP

723 Ocean Front Walk

Venice, California 90291

(310) 396-0731

Attorneys for Respondent

IRIS MENA

TABLE OF CONTENTS

Page

RESPONDENT’S OPPOSITION TO

PETITIONERS’ WRIT OF CERTIORARI ........... 1

DUPRE MIUE GC BEM CARE oc ccc ccccccccccccecs 2

A. ree 2

B. i ccconbdenecaceoeecesvace 8

REASONS FOR DENYING THE PETITION ....... 11

I. The Ninth’s Circuit’s Decision Is Consistent

with Michigan v. Summers and Does Not

Conflict with Rulings in Other Circuits. ....... 11

A. Determining the Reasonableness of

Respondent’s Detention Is a Fact-

specific, Individualized Inquiry......... 11

B. The Ninth Cireuit’s Decision Was A

Correct Application of Michigan v.

DL -é6cnnndedesbdcehnaewailae 12

c. The Ninth Circuit’s Ruling Is Not in,

Conflict With Other Courts of Appeal

Cases Regarding the Application of

Michigan v. Summers. .............. 16

Il. This Is an Inappropriate Vehicle to Decide

the Issue of Whether Mere Questioning of

an Already Lawfully Detained Person

Constitutes an Additional, Unreasonable

Seizure in Vw«‘ation of the Fourth

A. To the Extent the Ninth Circuit

Opinion Addresses the Issue of

Whether Mere Questioning Can

Constitute a Separate Constitutional

Violation, it Is Dictum. .............. 20

B. The Ninth Circuit Did Not Hold That

the Officers’ Questions About

Respondent’s Immigration Status

Constituted a Separate, Additional

and Unconstitutional Seizure. ......... 21

od This Is Not an Appropriate Case to

Resolve the Circuit Conflict

Petitioners Identify. .........cce00- 22

GEE cc ickenns cus ebeekavessteumeein 24

il

TABLE OF AUTHORITIES

Page

Cases

Franklin v. Foxworth,

31 F.3d 873 (9® Cir. 1994) .................. 15

Graham v. Connor,

SD “«.berccevedeadnanceeds 12

Heitschmidt v. City of Houston,

161 F.3d 834 (5 Cir. 1998) ................ 19

Hope v. Pelzer,

SS MP ov cuencskéveccsccecees 14

Martinez-Camargo v. INS,

yO ne 22

Mena v. Simi Valley,

226 F.3d 1031 (9th Cir. 2000) ............... 9

Mena v. City of Simi Valley,

332 F.3d 1255 (9" Cir. 2003) ........... passim

Meredith v. Erath,

342 F.3d 1057 (9" Cir. 2003) ............. 18, 19

Michigan v. Summers,

Se ED osc cseccecstovcesss passim

Pecsi v. Doyle,

940 F.2d 661(6" Cir. 1991)

TEE chicnndvsnaseddesecees 18

Pikel v. Garrett,

55 Fed. Appx. 29 (3™ Cir. 2002) ............. 17

Terry v. Ohio,

nd codupeveconesbanesssens 23

United States v. Barahona,

990 F.2d 412 (8" Cir. 1993) .............005. 23

ill

United States v. Chacon,

330 F.3d 323 (5™ Cir. 2003) ................- 23

United States v. Childs,

277 F.3d 947 (7" Cir. 2002) ...........22005- 23

United States v. Crain,

33 F.3d 480 (5" Cir. 1994) ...............05. 23

United States v. Fountain,

2 F.3d 656 (6" Cir. 1993) ..........2000005- 17

United States v. Holt,

264 F.3d 1215 (10" Cir. 2001) ..... hn Sea 23

United States v. Jones,

44 F.3d 860 (10 Cir. 1995) ................. 23

United States v. Martinez-Camargo,

neds cccneseccesencececs 23

United States v. Martinez-Fuerte, .

GB i Fee CRF vce ccccccccccescccccccs 23

United States v. Muchaca-Barrera,

261 F.3d 425 (5" Cir. 2001) ............205- 23

United States v. Murillo,

255 F.3d 1169 (9 Cir. 2001) ..... Siccenncwes 23

United States v. Pruitt,

174 F.3d 1215 (11 Cir. 1999)............... 23

United States v. Ramos,

42 F.3d 1160 (8" Cir. 1994) ................ 23

United States v. Shabazz,

993 F.3d 431 (5™ Cir. 1993) ................ 23

iv

Constitution, Statutes, Treaties,

42 US.C. § 1983

Rules, and Resolutions

RESPONDENT’S OPPOSITION TO PETITIONERS’

WRIT OF CERTIORARI

Respondent Iris Mena submits this brief in opposition

to the petition for writ of certiorari filed by petitioners Daniel

L. Muehler and Robert Brill. Petitioners, who are police

officers for the City of Simi Valley, seek to review the verdict

reached by the jury and affirmed by the courts below that

respondent’s detention violated the Fourth Amendment and that

petitioners were not entitled to qualified immunity.

There was ample evidence demonstrating the

unreasonableness of respondent’s detention, as the jury, district

court and the Ninth Circuit correctly concluded. Moreover, the

Ninth Circuit’s opinion was in accord with the principles set

forth by this Court in Michigan v. Summers, 452 U.S. 692

(1981). The unlawfulness of the officers’ actions was clearly

established at the time of respondent’s detention. Moreover,

there is no conflict between the decision in this case and the

decisions of other circuit courts.

This is an inappropriate case to resolve the issue of

whether mere questioning of an already lawfully detained

individual constitutes an additional, unconstitutional seizure.

Petitioners attempt to create a “compelling reason” for this

Court to grant review by focusing heavily on the portion of the

Ninth Circuit’s opinion concerning respondent being

questioned by the police officers about her citizenship.

However, this portion of the opinion was unnecessary to the

court’s affirmance of the jury’s verdict that the manner in

which this detention was conducted was unreasonable.

Moreover, the Ninth Circuit did not hold that the questioning

of respondent about her immigration status during her detention

amounted to a separate seizure and an independent Fourth

Amendment violation. This claim was not before the court.

The questioning in the circumstances of this case was just one

of many factors the jury considered in finding the extent of

respondent’s detention to be unreasonable.

The distinct factual and legal setting of this case also

means that it is an inappropriate case to determine the

permissible scope of questioning during traffic stops, stops at

border checkpoints, or immigration deientions, which is

precisely what petitioners urge this court to do with this case.

Ultimately, the case prevents no “compelling reason” for

review under SUP. CT. R. 10 and is ill-suited to resolve the

issues petitioners identify.

STATEMENT OF THE CASE

A. Statement of Facts

On February 3, 1998, at approximately 7:00 a.m.,

officers of the Simi Valley Police Department SWAT team,

including petitioners, forcibly gained entry into respondent's

home at 1363 Patricia Avenue with a battering ram, to execute

a search warrant relating to Raymond Romero, a tenant of

respondent's parents who was not present at the time. ER 66.

The police came in with overwhelming force. There

were at least eighteen officers present at the scene. Once the

SWAT team made the initial entry and cleared the residence

within minutes, police were confronted with four

non-threatening non-suspects who had nothing whatsoever to

do with the suspect, Raymond Romero, or with any gang or

criminal activity.

Respondent Iris Mena, an 18 year-old Salvadorian

immigrant, was asleep in her bedroom located very near the

point of entry when she was suddenly awakened by a loud

bang. ER 111; SER 38. Her mother and father were both at

work at the time of the search and thus respondent was alone

and in an extremely vulnerable position. The bang was

immediately followed by the forced entry of at least one armed

man in dark clothing into her locked room. SER 111. The

man pointed semi-automatic weapons in respondent’s face as

she awoke and ordered her to stand up and put her hands

behind her back. ER 112; SER 78. She complied and was

immediately grabbed by the hands and pushed face first onto

the bed. ER 113.

Respondent initially had no idea who the men entering

her home were or why they had entered her home. Respondent

feared that the men had come to rob or kill her and she was

terrified. ER 113-14. Respondent testified that during this

initial encounter no one identified himself as a police officer.

ER 112-14. Only when the man who pushed her onto the bed

handcuffed her did respondent believe that the armed

individuals in her house were police officers, because she

believed that these were "the only persons who put handcuffs

on people." ER 113. After being handcuffed, respondent was

grabbed by the back of her shirt, pulled off the bed and led out

to a garage. Id.

Petitioners Brill and Muehler played a pivotal role in

the early morning operations. Petitioners supervised the

execution of the search and were also in charge of overseeing

the detention of the occupants of the house. ER 86 - 87, 172.

It was petitioner Muehler who ordered respondent and the three

other persons found on the property be taken to the adjoining

converted garage. SER 55. Petitioner Brill came into the

garage several times during respondent's detention, SER 62,

and either of the petitioners could have released her at any time.

SER 55, 62.

Respondent was led outside in order to reach the garage.

It was pouring rain on that morning and the ground was wet.

ER 66, 115. At the time of her initial detention, respondent

was wearing only green sweat pants, a black long sleeved shirt

and had no shoes on her feet. ER 115. Respondent was forced

- to walk outside in the cold, pouring rain with no jacket and no

shoes. Only after she had been exposed to the elements and sat

in the damp garage in uncomfortable handcuffs for a half an

hour to an hour did officers give respondent a jacket and some

shoes to wear. ER 122, 131.

While she was held in the garage, an officer asked

respondent if she was a legal resident of this country, even

though this question was irrelevant to the purpose of the search.

ER119-120. An INS officer, who petitioners brought on the

search, ER 178-79, then asked respondent intrusive questions

about her immigration status and inquired where her papers

were. ER 120. Respondent, a legal resident of this country, ER

109, 120, stated that her documentation was in her purse and

a police officer then went and searched it without respondent's

permission. ER 120. The officer handed the documentation

over to the INS agent. ER 120.'

"Indeed, it was part of the respondent's theory of the case and

the evidence presented that petitioners treated respondent so badly

because they thought illegal aliens lived at the Mena's home, a home

they described as a “poorhouse." ER 261-62. Moreover, petitioners had

4

During her detention, respondent also observed a female

videotaping in the garage where she and the other residents of

the premises were being detained. Respondent, who had not

given the police permission to videotape her, was concerned

about this additional intrusion into her privacy. ER 124-25.

She asked an officer about the videotaping. ER 125. Instead of

alleviating her anxiety and treating her with a modicum of

respect, the officer yelled at her that it was part of their job to

do that, and gave her no further explanation about the

videotaping. ER 125.

Respondent was the only occupant present within the

main house the morning of the search. She was not shown a

search warrant or given an explanation for the search until after

the search ended. ER 118. While she was held she heard and

saw Officers breaking things, including a door, in her home, all

without the slightest explanation. ER 120-21. Respondent

made repeated attempts to elicit an explanation for her

detention from the officers who were in the garage with her and

the other detainees. ER 117-18. She received either evasive

responses or no responses at all. Id. On at least one occasion

the officer whom she asked replied that they were not in charge

of the operation and hence were not authorized to give her an

explanation. ER117. She could hear officers breaking doors

and inflicting damage to property in her home, while she was

detained in a garage and treated as a person with no rights. ER

120-21.

previously made a call to the Mena residence, though not for any gang

affiliated activity. SER 47-48, 72-73. Thus, the unnecessarily harsh

treatment of respondent on the morning of the search could properly

have been viewed by the jury as payback for petitioners’ prior exposure

to the Mena family and petitioners’ negative view of the occupants of

the Mena home, rather than as legitimate law enforcement actions.

Petitioner Muehler acknowledged during trial that he

and petitioner Brill were the ones in charge of overseeing the

detentions, and that part of this task entailed addressing the

questions of the individuals being detained. ER 182.

Petitioners never approached respondent to give her an

explanation, or to show her a search warrant, even though

petitioners came to the garage during respondent's detention

several times. SER 62, 97.

Respondent was detained in the garage in handcuffs for

the duration of the search. SER 92. She testified that the

handcuffs were "real uncomfortable," ER 119, and that they

became even more uncomfortable as time progressed. Id.

Respondent asked officers to remove the handcuffs but she was

informed that "it was part of their job" to handcuff her, and

that the "their highest officer" had ordered this. ER 118. Given

the officer’s attitude towards her from the beginning of the

search, further requests would have seemed futile in her

circumstances.

Petitioners justified respondent's detention and

handcuffing by claiming they did not know the extent of

respondent's involvement with Raymond Romero, the main

target of the search, and also claimed "concern" that she might

interfere with the search. ER 93. However, at trial, officers

admitted that they did not suspect respondent of being

involved in any crime, and agreed with the observation that

respondent was completely cooperative throughout the entire

ordeal from beginning to end. SER 40-41, 54. Searches of

respondent's person and room, SER 19 (Exhibit. 13); 51,

produced no contraband or any evidence of gang membership,

SER 48-49, 51, 61, or criminal activity of any kind. S ER

60-61. Petitioners never had any information that respondent

or her family were connected to any gang or criminal activity.

Id. Indeed, respondent was never questioned about any gang

activity or about anything other than her immigration status.

Moreover, petitioners’ knew that this was not a gang safe

house. Petitioners in their affidavit of probable cause identified

respondent’s home as a “poorhouse.” Petitioners admitted at

trial that on their visit to the location one month prior to the

search they encountered numerous residents but no one who

they identified as gang members. Petitioners’ information was

that the only gang member who currently resided at the

residence was Raymond Romero. Petitioners also had

adequate personnel at their disposal to remove respondent's

handcuffs after they cleared the residence and learned that

Raymond Romero was not present. SER 167. In fact, within

minutes the search site was deemed Code 4 “which means

everything was calm and the risks were minimized." SER 86.”

Respondent remained in the garage, handcuffed and in

great discomfort, for between two to three hours. ER 196.

Respondent was held this way for at least fifteen minutes to an

hour after the search of the residence had been completed.

Respondent testified that her handcuffs were not taken off until

she was brought into the living room. The police videographer

testified that she was brought in to videotape the location after

*Both SWAT Commander Lt. Thomas and defense expert

witness Joseph Callanan testified on cross-examination that standard

police procedure is that non-suspect detainees, who pose no threat to

police officers shuuld be released after they have been patted down for

weapons and identified. SER 102-04 (Thomas); SEk 138-43

(Callanan). Indeed, Mr. Callanan's testimony on cross-examination

fully supported respondent's claim that petitioners had no justification

for detaining respondent in handcuffs as long as they did. In addition,

the tactical plan for this search provided for this. SER 8 (exhibit 11);

56, 96; ER 89.

the search was completed. SER 52, 115-17. Yet, the

post-search videotape, which has a time stamp indicating it was

made two hours after the SWAT team's entry, does not show

respondent in the living room at all. Instead, it shows petitioner

Muehler completing paperwork in the living room while

respondent remained handcuffed in a cold garage. Petitioner

Brill admitted that respondent was not released until at least ten

to fifteen minutes after the search was concluded. Respondent

testified that she was held as long as three hours. Therefore,

the evidence at trial allowed the jury to find that respondent

was held for as long as one hour after the search had been

concluded. ER 89, SER 52, 115-117. At trial, the officers

provided no justification for maintaining respondent under

restraint after the search had ended.’

B. Proceedings Below

Respondent filed an action pursuant to 42 U.S.C. §

1983 alleging, in part, that the City of Simi Valley and eighteen

of its officers, including petitioners, violated her rights under

the Fourth and Fourteenth Amendments by unlawfully

detaining respondent during the search of her home.

Before trial, all of the individual officers moved for

summary judgment based on the affirmative defense of

qualified immunity. ER 304. The district court denied the

motion as to all but one of the officers and the remaining

officers filed an interlocutory appeal contending that the United

States Supreme Court's decision in Michigan v Summers, 452

U.S. 692, 705 (1981), gave them authority to detain residents

during the | awful execution ofa valid search warrant. On

’Respondent testified that she still suffers from nightmares,

suffered humiliation and fear. ER 113, 118.

8

September 22, 2000, the Ninth Circuit held, inter alia, that the

officers were not entitled to qualified immunity with regard to

plaintiffs' claim that the circumstances of her detention violated

the Fourth Amendment. Mena v. Simi Valley, 226 F.3d 1031,

1038-41 (9th Cir. 2000) ("Mena I"). The case was remanded

for trial on plaintiff's remaining claims, including her unlawful

detention claim.

On June 21, 2001, the jury found that petitioners

violated plaintiff's Fourth Amendment rights by detaining her

“with greater force than which was reasonable under the

circumstances” and “for a period longer than reasonable.” ER

273-274. The jury sided with petitioners on all other claims.

ER 270-272. The jury awarded respondent $10,000 in

compensatory damages and $20,000 in punitive damages

against each of the petitioners. ER 276-277.

On July 24, 2001, petitioners filed a motion to amend

the judgment, which was denied by the district court in an

extensive opinion. ER 288. Petitioners appealed.

The Ninth Circuit upheld the trial court’s ruling in

Mena v. City of Simi Valley, 332 F.3d 1255 (9 Cir. 2003)

(Mena II). It found that there were ample facts demonstrating

the existence of an unreasonable seizure in violation of the

Fourth Amendment. In particular, the Court noted: 1)

respondent was awakened abruptly by a loud noise and opened

her eyes to find a person dressed in black pointing a gun in her

face; 2) no officer during this initial encounter identified

himself as an officer and respondent believed that the persons

in her room had come to rob her; 3) the officers searched

respondent and her room, yanked her up from her bed by her

shirt, and led her out of the room in her pajamas; and 4)

although it was raining outside and respondent was barefoot,

the officers directed her outside and into a cold garage, where

she was detained for two to three hours. /d. at 1261-1262. The

Court found that these “heightened security measures” were

unjustified in light of the fact that it was clear respondent posed

no threat to the safety of the officers; the search of her room

and residence produced no evidence of gang membership;

respondent was not a suspect in the crime; and, although the 18

well armed S.W.A.T. members secured the house in a matter of

minutes, she was handcuffed and detained for two to three

hours. Based on these circumstances alone, the Court

concluded that her detention was objectively unreasonable and

“unnecessarily degrading [and] prolonged.” Jd. at 1263-1264.

The Court also found that the officers’s questions about

respondent’s citizenship status and search of her purse for proof

of citizenship also rendered her detention unreasonable. The

Court did not find this to be a separate seizure, but rather a

factor which rendered her Summers detention unreasonable. Jd.

at 1264-1266. However, it is clear that the Court found

respondent’s detention to be unreasonable and in violation of

the Fourth Amendment independent of the questioning of her

immigration status and the search of her purse. Thus, the

portion of the opinion concerning the officer’s questions

regarding her immigration status was unnecessary and was

dictum.

Petitioner’s suggestion for a rehearing en banc was

denied on January 14, 2004.

10

REASONS FOR DENYING THE PETITION

I. The Ninth’s Circuit’s Decision Is Consistent with

Michigan v. Summers and Does § « Conflict with

Rulings in Other Circuits.

A. Determining the Reasonableness of

Respondent’s Detention Is a Fact-specific,

Individualized Inquiry.

The only issue this case presents is whether

respondent’s detention during the officers’ search of her

parents’ home was unreasonable pursuant to the principles set

forth by this court in Michigan v. Summers. The facts of this

case and the opinions below simply do not raise any novel issue

of law or any important question for this Court to decide given

this limited fact-based context.

In Michigan v. Summers, 452 U.S. 692 (1981), this

Court held that “a warrant to search for contraband founded on

probable cause implicitly carries with it the limited authority to

detain the occupants of the premises while a proper search is

conducted.” 452 U.S. at 705. (Emphasis added). However,

Summers also held that “special circumstances” or “a prolonged

detention” and other detentions which are not “routine” could

give rise to a Fourth Amendment violation. Jd. at 705 n. 21.

Thus, Summers holds that police have limited authority to

detain the occupant of a house without probable cause during

the search when the detention is neither prolonged or unduly

intrusive.

Petitioners do not dispute this reading of Summers.

Rather, they claim that the Ninth Circuit’s ruling is an

expansive interpretation of Summers that conflicts with the

11

decisions of other courts of appeals. However, whether a

particular seizure is reasonable is a fact-specific inquiry that

varies from case to case. As stated by this Court in Graham v.

Connor, 490 U.S. 386, 398 (1989), when determining the

reasonableness of a detention courts must pay “careful attention

to the facts and circumstances of each particular case.” The

court must weigh factors “including the severity of the crime,

whether the suspect poses an immediate threat to the safety of

the officers and others, and whether [the suspect] is actively

resisting arrest or attempting to evade arrest by flight.” Jd. at

396. This is what occurred in this case.

The fact-specific inquiry a court must engage in to

determine the reasonableness of a particular detention thus

belies any assertion that the Ninth Circuit’s ruling somehow

expands Summers or conflicts with the rulings in other courts

of appeal. The jury, the district court, and the Ninth Circuit

concluded, based on the facts before them, that respondent’s

détention was unlawful. As demonstrated below, this

conclusion was certainly reasonable given the facts of this case.

Indeed, what petitioners present as a conflict between the

circuits is actually just an account of different assessments of

reasonableness in the particular circumstances of the cases and

not a conflict about the applicable legal norms.

B. The Ninth Circuit’s Decision Was a Correct

Application of Michigan v. Summers.

Petitioners ignore the requirement that the facts must be

viewed in the light most favorable to the jury verdict when

determining the lawfulness of respondent’s detention. There is

little doubt that the facts of this case support the jury’s verdict

that respondent’s detention was prolonged, unduly intrusive and

and hence unreasonable.

12

Respondent was an 18 year-old female at the time of the

detention. Although she was not a suspect, the officers broke

into her room and pointed guns into her face without

identifying who they were. After complying with the officers’

commands to stand up and put her hands behind her back,

respondent was grabbed by her hands and pushed face first onto —

the bed. After being thrown on the bed, respondent was

handcuffed and yanked up by her shirt and led outside in the

pouring rain and cold in her pajamas and without shoes.

Respondent was subsequently made to sit in a damp and cold

garage for a half hour to an hour before she was finally brought

a jacket and shoes to put on.

Respondent complained to the officers that her

handcuffs were too tight and uncomfortable but they refused to

loosen them.‘ Respondent was detained and kept in handcuffs

for at least three hours in the damp garage even though she

posed no threat to the safety of the officers and she made no

attempts to flee or destroy any contraband. There was also no

evidence she was affiliated with any gang or that she had

committed any crime. R espondent w as c ompliant w ith the

officers’ commands at all times and the officers conceded at

trial that they did not believe she posed a threat. Further, there

were 18 officers involved in the search and the premises were

secured in a matter of minutes. Finally, respondent remained

in handcuffs for at least 15 minutes to an hour after the search

had been completed. ©

‘Petitioners assert that because respondent did not specifically

state the handcuffs were painful the officers did not loosen them.

However, after the officers refused to loosen her handcuffs when she

said they were too tight and uncomfortable, respondent would have no

reason to believe that telling the officers her handcuffs were painful

would have caused them to loosen them.

13

__ Based on these facts, it was reasonable for the jury *, the

district court, and the Ninth Circuit to conclude that

respondent’s detention was unlawful. These facts establish that

respondent’s detention was anything but routine. Respondent’s

detention is also a far cry from that of the detention in

Summers, where the respondent was not handcuffed, not made

sit in a cold and damp garage for two to three hours, and was

not detained after the search was concluded. Petitioners.

exclude the facts which are most favorable to the jury verdict

when arguing that the rulings below are an expansion of

Summers. When the facts they exclude are considered, it is

readily apparent that no expansion of any sort has taken place

here.

Indeed, petitioners cannot point to any error of law

made by Ninth Circuit in Mena I when concluding there was

a constitutional violation, and essentially just complain about

the result. This Court should not grant certiorari merely to

reexamine facts that the jury, the district court, and the Ninth

Circuit have already considered and determined are sufficient

to support a finding that respondent’s detention was

unreasonable.

The Ninth Circuit also correctly decided that the

unlawfulness of the officers’ conduct was clearly established at

~~ the time of the detention. In Hope v. Pelzer, 538 U.S. 730

(2002), this Court stated that qualified immunity is unavailable

if the legal landscape at the time of the detention provided

‘Indeed, Petitioners do not raise in this petition the issue of

whether the district court erred when instructing the jury on what

constitutes an unlawful detention and have therefore conceded that the

instruction was correct. This further demonstrates the casonableness

of the jury’s conclusion that the detention was unlawful given they were

properly instructed on what constitutes an unlawful detention.

14

reasonable officers with fair warning that their conduct was

unconstitutional. Jd. at 739-740. Moreover, this Court further

held in Pelzer that an official action is not protected by

qualified immunity just because the very action in question had

not been previously held unlawful. Jd.

In this case, existing case law clearly supported the jury

verdict and the district court’s and Ninth Circuit’s qualified

immunity analysis. Petitioners dispute the conclusion that the

unlawfulness of respondent’s detention was clearly established

by arguing that no reasonable officer in 1998 would have

known that pointing a gun at respondent and handcuffing her

for two to three hours during a Summers detention was

unlawful. This argument lacks merit, however, because the

officers’ conduct was not limited to pointing a gun at

respondent and handcuffing her, but involved other conduct

clearly making this detention unreasonable. Indeed, even

though respondent was not a suspect and there was no evidence

that she was affiliated with any gang or had committed any

crime, she was still handled roughly, made to march through

the rain in bare feet, and made to sit in a cold and damp

environment for hours in overly tight handcuffs. See Franklin

v. Foxworth, 31 F.3d 873, 876-877 (9" Cir. 1994) (lawfulness

of police detention of a non-suspect during s earch rests on

evaluation of Graham factors; the fact that the police had no

reason to believe that the detainee had committed a crime, was

armed, was a gang member, posed any danger to them, or

presented a risk of flight rendered the detention unreasonable

and precluded qualified immunity).

Moreover, respondent’s continued detention in

handcuffs after the conclusion of the search was clearly

established as being unlawful at the time it occurred. As stated

in Summers, the initial authority to detain a non-suspect only

15

exists during the execution of a proper search. 452 U.S. at 705.

This establishes that the Ninth Circuit’s decision on qualified

immunity was correct and consistent with this Court’s rulings.

All of the facts and circumstances of this case support the jury’s

verdict and the denial of qualified immunity.

c. The Ninth Circuit’s Ruling Is Not in Conflict

With Other Courts of Appeal Decisions

Regarding the Application of Michigan v.

Summers.

Petitioners’ strained attempt to manufacture a conflict

between the Ninth Circuit and other courts of appeal regarding

the application of Michigan v. Summers is unavailing. The

Ninth Circuit’s decision in Mena IJ does not conflict with the

rulings made by other courts of appeal. L’ke the Ninth Circuit

opinion, each of the cases cited in petitioners’ writ (See Pet.

Writ. 16-18) recognize that Summers only granted law

enforcement officials limited authority to detain occupants

during the search of the premises pursuant to a valid search

warrant and that prolonged or unduly intrusive detentions may

violate the Fourth Amendment. Further, each of the cases

petitioners identify also employ a totality of the circumstances

test to determine the reasonableness of the detention. The fact

that in some of the cases the courts found there was no Fourth

Amendment violation in no way means that these decisions

conflict with the Ninth Circuit’s application of Summers in this

case. On the contrary, what accounts for the different results is

that the other cases were decided in the context of different

facts and circumstances.

Indeed, this case is readily distinguishable from the two

cases that petitioners argue clearly contradict the Ninth

16

Circuit’s decision in Mena II. In Pikel v. Garrett, 55 Fed.

Appx. 29 (3™ Cir. 2002), an unpublished decision, many of the

employees who were detained and handcuffed for three and a

half hours had criminal records. Jd. at 31. One employee was

found to have been carrying a gun at the time of her detention.

The search also took place in an auto body shop where many of

the tools in the shop could have been used as weapons. Pikel

was pushed to the ground and had a gun pointed at his face

because he failed to comply with the officers’ orders to “get

down.” Jd. It was on the basis of these very different facts that

the Pikel court concluded that the plaintiffs’ detention was

reasonable.

This differs significantly from this case where there was

no evidence that respondent had a criminal background, there

were no weapons found on her when she was detained, and she

was compliant at all times with the officers’ commands. The

employees in Pikel were also not held in handcuffs and

detained after the search completed.

In United States v. Fountain, 2 F.3d 656 (6" Cir. 1993),

handcuffing the occupants and forcing them to lay face down

during the search was justified by several circumstances not

present in this case. First, during a prior search of Fountain’s

home, Fountain was observed destroying contraband and

automatic handguns were also seized from his home. Jd. at

659. Moreover, during the search, narcotics were found in

Fountain’s pocket and three firearms were found in the hall

closet. Jd. at 660. The Fountain court ruled that in light of

these circumstances, the actions of the law enforcement

officials were reasonable and proportional to their interests in

preventing flight and minimizing the risk of harm to the

officers. Jd. at 663. Nothing even remotely approaching these

circumstances was present in this case.

17

Petitioners are also incorrect in their assessment that

this case is less egregious than the cases they identify in their

petition (See Pet Writ. at 17-18) where a Fourth Amenumient

violation was found by the court. Indeed, petitioners’ argument

in this regard is premised on the false notion that this is simply

a handcuffing case and that the Ninth Circuit’s ruling was that

handcuffing a suspect for two-three hours during a search is a

per se constitutional violation. As shown above, this was not

the court’s ruling. In fact, this case is just as egregious if not

more egregious than the cases they cite in that, in addition to

the facts described above, respondent was detained after the

search had been completed, which did not occur in any of the

other cases. Further, in Pecsi v. Doyle, 940 F.2d 661(6" Cir.

1991) 19 WL 137957 at 1-3, an unpublished opinion cited by

petitioners, the detainee was not even handcuffed and was

permitted to move around his apartment if accompanied by an

officer. Nonetheless, the court found there was a Fourth

Amendment violation with respect to the manner of Pecsi’s

detention.

As for the Ninth Circuit case Meredith v. Erath, 342

F.3d 1057 (9" Cir. 2003), petitioners’ summary of the case is

misleading. Plaintiff Meredith made two unlawful detention

claims. The first was based solely on her being handcuffed and

detained in handcuffs during the search. Jd. at 1062. As to this

claim, the court determined that under the totality of the

circumstances Meredith’s detention in handcuffs was not

justified. Jd. At 1062-1063. However, the court found that the

officers were entitled to qualified immunity on this claim

because it had not been clearly established that handcuffing a

person and detaining her in handcuffs under the circumstances

the officers faced in Meredith, standing alone, would violate

18

the Fourth Amendment.® This ruling is not inconsistent with

the holding in Mena II because the court’s ruling that

petitioners w ere not entitled to qualified immunity w as not

limited to the act of handcuffing as it was in Meredith, but was

based on the totality of the officers’ conduct during the seizure

as described above. Jd. at 1266-1267.

As to Meredith’s second unlawful detention claim, this

was based on her being kept in overly tight handcuffs. The

court found that this fact rendered her detention unreasonable

and that the officers were noi entitled to qualified immunity.

Id. at 1063-1064. Since respondent was also kept in overly tight

handcuffs throughout her detention, this case is fully consistent

with Meredith, contrary to petitioners’ assertion. |

Thus, not only is there no conflict between Mena I/ and

the decisions of other courts of appeal with respect to the

application of Summers, there is also no intra-circuit conflict in

the Ninth Circuit. This case therefore does present this Court

with an opportunity to resolve any conflict whatsoever, as the

Ninth Circuit and the other courts of appeal have employed the

same principles in their application of Summers.

‘The opinion states that it had not been established by July 10,

1998 in other circuits that simply handcuffing a person and detaining

her in handcuffs would violate the Fourth Amendment. /¢ at 1063.

However, this is clear error because the case Meredith cites to for this

proposition, Heitschmidt v. City of Houston, 161 F.3d 834, 838-839 (5*

Cir. 1998) found that there was no qualified immunity for a detention

involving handcuffing that occurred in /994.

19

Il. This Is an Inappropriate Vehicle to Decide the Issue

of Whether Mere Questioning of an Already

Lawfully Detained Person Constitutes an

Additional, Unreasonable Seizure in Violation of the

Fourth Amendment.

A. To the Extent the Ninth Circuit Opinion

Addresses the Issue of Whether Mere

Questioning Can Constitute a Separate

Constitutional Violation, it Is Dictum.

Petitioners argue that this is an appropriate case for this

Court to decide the issue whether “mere questioning of an

individual who has been lawfully seized can constitute an

additional, unreasonable seizure.” Pet. Writ at 9. In making

this argument, petitioners focus heavily on the portion of the

Ninth Circuit opinion concerning respondent being questioned

by the officers about her immigration status. However,

petitioners do not dispute that the Ninth Circuit found

respondent’s seizure to be unlawful even in the absence of her

being questioned about her immigration status. Thus, any

discussion of whether this questioning was itself a

constitutional violation is dictum. Moreover, petitioners also

concede that the parties never briefed the issue of whether mere

questioning constitutes a separate constitutional violation to

the court or presented it to the jury.’ Thus, to the extent any

portion of the Ninth Circuit’s opinion touches upon this specific

issue, it is dictum as well.

"Respondent merely argued to the jury and the courts below

that the act of her being questioned about her immigration status was

one of many factors that rendered her detention unconstitutional.

20

Further, resolving this issue would have no impact on

the outcome of this case unless this Court also found that all of

the facts regarding respondent’s detention were insufficient to

establish a Fourth Amendment violation. However, respondent

has already demonstrated that the Ninth Circuit’s decision

regarding the unlawfulness of her detention was correct when

all the facts and circumstances of her detention are taken into

account. Therefore, granting review as to issue number one of

petitioners’ writ would be inappropriate because the

questioning issue is unnecessary to the holding in this case and

would be tantamount to an advisory opinion.

B. The Ninth Circuit Did Not Hold That the

Officers’ Questions About Respondent’s

Immigration Status Constituted a Separate,

Additional and Unconstitutional Seizure.

Petitioners misconstrue the holding in Mena IJ when

arguing that the Ninth Circuit held that the officers’ questions

to respondent about her immigration status constituted a

separate, additional and unconstitutional seizure. At no point

in the opinion does the Ninth Circuit state that the questioning

amounted to a separate, unconstitutional seizure. The Ninth

Circuit’s analysis was focused on whether there were sufficient

facts to sustain the jury’s verdict that respondent’s detention

was unreasonable. In this context, the Ninth Circuit found that

questioning Mena about her immigration status and searching

her purse were among many factors that rendered her detention

unreasonable.’ The court did not rule that her questioning

"Indeed, the fact that the Ninth’s Circuit’s holding was also

based on the fact the officers searched respondent’s purse for proof of

citizenship is another reason why this case is not appropriate to decide

issue number one of the writ.

21

amounted to a separate, constitutional violation, nor could it

without that portion of the opinion being dictum, considering

respondent never argued this below or briefed this issue to the

Ninth Circuit. 332 F.3d at 1264-1266.

Since the Ninth Circuit never ruled that the officers’

questions regarding respondent’s immigration status amounted

to a separate, unconstitutional seizure, and considering

respondent never advanced this argument at trial or on appeal,

this obviously would be an inappropriate case to decide the

issue of whether mere questioning of an already lawfully

detained person could constitute a separate, unconstitutional

seizure. Moreover, the fact that the Ninth Circuit did not find

that there was a separate, unconstitutional seizure means that

there is no conflict with the Seventh Circuit case Martinez-

Camargo v. INS, 282 F.3d 487 (7 Cir. 2002), as petitioners

argue. Indeed, Martinez-Camargo specifically held that an

officers’ questions about the detainee’s immigration status

could be considered in determining the reasonableness of the

initial detention e ven though they did not create a separate

seizure. 282 F.3d at 487. This alone is grounds to deny

certiorari as to issue number one of petitioners’ writ.

Cc. This Is Not an Appropriate Case to Resolve

the Circuit Conflict Petitioners Identify.

Petitioners argue that this is an appropriate case to

resolve the conflict between the court of appeals on the issue of

whether an officer must have a reasonable suspicion to question

a lawfully detained individual on matters unrelated to the

reason for the initial detention when the questioning does not

expand the length of detention. However, even a cursory

examination of the cases cited in petitioners’ writ (Pet Writ at

22

10-11) reveals that the legal and factual background of those

cases is markedly different from this one, thus making this an

inappropriate case to resolve the conflict petitioners identify.

Indeed, petitioners are only able to create a conflict by ignoring

the context of the cases they cite, including the facts of this

case.

The majority of the cases cited by petitioners involve

questioning by law enforcement officers about other possible

crimes during routine traffic stops and fall under Terry v. Ohio,

392 U.S. 1 (1968) and its progeny. See United States v. Holt,

264 F.3d 1215, 1218-1219 (10" Cir. 2001), United States v.

Pruitt, 174 F.3d 1215, 1217-1219 (11" Cir. 1999), United

States v. Ramos, 42 F.3d 1160, 1161-1163 (8" Cir. 1994),

United States v. Murillo, 255 F.3d 1169, 1172-1173 (9" Cir.

2001); United States v. Jones, 44 F.3d 860, 871 (10% Cir.

1995); United States v. Barahona, 990 F.2d 412, 416 (8" Cir.

1993); United States v. Crain, 33 F.3d 480, 481-482, 485 (5"

Cir. 1994); United States v. Shabazz, 993 F.3d 431, 434-435

(5" Cir. 1993). The case United States v. Childs, 277 F.3d 947

(7 Cir. 2002) is also a traffic stop case, although it rejects

employing a Terry analysis in favor of a probable cause arrest

analysis. Jd. at 952-953.

United States v. Chacon, 330 F.3d 323, 325, 327 (5"

Cir. 2003) and United States v. Muchaca-Barrera, 261 F.3d

425, 429, 431 (5 Cir. 2001) are border detention/ checkpoint

cases which fall under the United States v. Martinez-Fuerte,

428 U.S. 543 (1976), line of cases. Finally, United States v.

Martinez-Camargo, 282 F.3d 487, 489-490 (2002) is an

investigatory stop/ immigration detention case.

By contrast, this case concerns the detention of a non-

suspect resident during a search of the premises pursuant to a

23

valid search warrant. This case falls within the ambit of CONCLUSION

Michigan v. Summers. As such, this is an inappropriate case to

decide the permissible scope of questions a law enforcement For the foregoing reasons, the petition for a writ of

officer may ask during a traffic stop, a border/checkpoint certiorari should be denied.

detention, or an investigatory stop/immigration detention. This

is because whether or not an officer’s questioning renders a

detention unreasonable turns on the facts and circumstances

unique to each of these settings. The fact that all of the cases

involve questioning does not overcome the fact that law

enforcement officials are confronted with different concerns

depending on the context they may find themselves in.

Therefore, having this case set the parameters of permissible

questioning in other, dissimilar law enforcement settings will

do little to clarify | what constitutes permissible or

impermissible questioning and will likely lead to additional

confusion. Accordingly, this case is not an appropriate vehicle

to resolve the circuit conflict petitioners identify.

24

Dated: May 13, 2004

Respectfully submitted,

Paul L. Hoffman

Counsel of Record

Erwin Chemerinsky

Michael Morrison

SCHONBRUN DESIMONE SEPLOW

HARRIS & HOFFMAN LLP

James S. Muller

LAW OFFICES OF JAMES MULLER

Attorneys for Respondent

Iris Mena

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