# Petition for Writ of Certiorari — James v. Boise, 136 S. Ct. 685 (2016) (No. 15-493) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0624%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2016 ## Text Jo-4$-3— 3n The Supreme Court of the Anited States Sf MELENE JAMES, Petitioner, vV. CITY OF BOISE, A POLITICAL SUBDIVISION OF THE STATE OF IDAHO, STEVEN BONAS, STEVEN BUTLER, AND TIM KUKLA, Respondents. S On Petition For A Writ Of Certiorari To The Idaho Supreme Court SJ PETITION FOR A WRIT OF CERTIORARI ¢ JOHN A. BUSH Counsel of Record 199 N. Capitol Blvd., Suite 500 Boise, ID 83701 (208) 344-7700 jabush@comstockbush.com RICHARD H. SEAMON 1297 Highland Dr. Moscow, ID 83843 COCKLE LEGAL BRIEFS (800) 225-6964 WWW COCKLELEGALBRIEFS.COM i QUESTION PRESENTED Both 42 U.S.C. § 1988 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), authorize a court, “in its discretion,” to award reasonable attor- ney’s fees in specified proceedings. This Court inter- preted those provisions, respectively, in Hughes uv. Rowe, 449 U.S. 5 (1980), and Christiansburg Garment Co. v. EEOC, 434 U.S. 413 (1978), to allow awards of attorney's fees against a plaintiff only if the plaintiff’s lawsuit is “frivolous, unreasonable, or without foun- dation.” The question presented is whether the Idaho Supreme Court correctly concluded that Hughes and Christiansburg do not bind state courts because this Court “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.” ii PARTIES TO THE PROCEEDINGS Petitioner, Melene James, was the plaintiff-appellant below. Respondents, City of Boise, Steven Bonas, Steven Butler, and Tim Kukla, were the defendants-respondents be- low. Also named as a defendant in the complaint was Rodney Likes; he was voluntarily dismissed at the trial-court level, and was therefore not a party to the proceeding before the Idaho Supreme Court. ill TABLE OF CONTENTS Page QUESTION PRESENTED..................0sceccessesseeeee i PARTIES TO THE PROCEEDINGS ................... ii TABLE OF AUTHORITIES .....................0c..0000e0e vi PETITION FOR A WRIT OF CERTIORARI ....... 1 TTT AT a 1 Ee en 1 CONSTITUTIONAL AND STATUTORY PRO- ee Be ee cccccscesercesecesccvessscesessossooss 1 SATE 3 STATEMENT OF THE CASE.................ccesseseeeees 4 REASONS FOR GRANTING THE WRIT ........... 13 I. The Idaho Supreme Court’s Decision Conflicts with Decisions of this Court....... 13 A. The Idaho Supreme Court’s Decision Conflicts with Hughes v. Rowe and Christiansburg Garment Co. v. EEOC... 13 B. The Idaho Supreme Court’s Decision Conflicts with Decisions of this Court Establishing the Supremacy of this Court’s Interpretation of Federal SII scdcadladeacmtimcdanimitiiaddnimaamaiabani 18 Il. The Idaho Supreme Court’s Decision Conflicts with Decisions of Other Lower iV TABLE OF CONTENTS -— Continued Page A. The Idaho Supreme Court’s Decision Conflicts with Decisions of Other State Supreme Courts That Follow Hughes v. Rowe and Christiansburg ES etre 24 B. The Idaho Supreme Court’s Decision Conflicts with Decisions of Other State Supreme Courts That Recog- nize the Supremacy of this Court’s Decisions Interpreting Federal Stat- WD covevavccreccocsonseesticiontanmiiienianhioniidean 28 III. The Question Presented Has Surpassing Importance for the Uniform Enforcement of Federal Rights in State Courts ............. 30 IV. This Case Is An Appropriate Vehicle for Review of the Question Presented ............ 32 A. The Question Presented Was Pressed and Passed Upon Below ...................... 32 B. The Idaho Supreme Court’s Ruling on the Question Presented Was Outcome- ei cincccciecncdcctenenatatidennaiiadiae 34 C. The Question Presented Concerns the Supremacy of this Court’s Decisions in the Fundamentally Important and Timely Context of the Enforcement of Pearel Civil TAOS ...cccccccccosssccccccsccnes 37 Fe ccensscevescesssesesesnnsemiansensaniesanantennbinnia 39 Vv TABLE OF CONTENTS — Continued Page APPENDIX Idaho Supreme Court Opinion......................00000+ App. 1 Idaho District Court Memorandum Decision and Order on Defendants’ Motion for Sum- SE CTT App. 64 Idaho Supreme Court Order Awarding Costs To oniraensemennnepnnemmnenennnenenett App. 131 Idaho Supreme Court Order Denying: Rehear- Si eioiniieiddinnnenpinepnbstnatgnbenimmmenemnsssensssnneseeseunt App. 133 Excerpt of Respondent’s Brief on Appeal........ App. 135 Excerpt of Memorandum in Support of Petition Ee App. 138 Excerpt of Memorandum in Opposition to Costs | Te ae App. 145 vi TABLE OF AUTHORITIES Page CASES Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 Ti cinssitiahbainniasinanietinnisitipiieteiaiinnbniintanmemmetiiageeel 23 Afzali v. State, 326 P.3d 1 (Nev. 2014) ................:000e- 29 Air Wisconsin Airlines Corp. v. Hoeper, 134 By ee ST snsicinisiesccniniatnbeneddiadiidinecueiuieiiaaual 23 Alley v. Taylor, 2001 Del. Super. LEXIS 119 (Del. Super. Ct. Mar. 30, 2001) ....................00000000000 25 Alyeska Pipeline Serv. Co., Inc. v. Wilderness Society, et al., 421 U.S. 240 (1975) ..........ccccccesecneee 30 Astrue v. Ratliff, 560 U.S. 586 (2010) ....................000. 30 Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d SETI: II iciietetpenseinnntsnnnrendinesccssinnmntinmsennessentl 27 Barstow v. State, 742 S.W.2d 495 (Tex. App. Si cetocsusinpnnninanberndapbeeemmscmaaemmnaatniaenainaninaieamneas 29 Bitgood v. Allstate Ins. Co., 481 A.2d 1001 (R.I. Si icietesincsisndeepeenenntnnisnniniisenamndintatslaesigaividiesenpesenimsinel 28 Burt v. Titlow, 134 S. Ct. 10 (2013).................cccceceeeee 32 California Correctional Peace Officers Assn. v. Virga, 181 Cal. App. 4th 30 (Cal. App. Ist SITE: HITTITE iiicisiniiniiieisiaiiati tapas arinipaaeitaaeatiinneennsgel 25 Casa Marie Hogar Geriatrico, Inc., et al. v. Esther Rivera-Santos, et al., 38 F.3d 615 (1st SEaED Saiiaa encrenisnsinttennentienbiennstantnidunetenmassentianidiiinssemneniees 10 Chenevert v. Hilton, 978 So. 2d 1078 (La. App. EE Mii ccitensncnccnnsnscnsecictnctntanenteinatenssendineiianentons 26 vii TABLE OF AUTHORITIES — Continued Page Christiansburg Garment Co. v. EEOC, 434 U.S. ST iscicetiencinsiipaciitinbeieeaeaedaniapecmtiaaiel passim City of Waco v. Hester, 805 S.W.2d 807 (Tex. Ct. SI SET dcncicntaniiccnnsniiinuninaninnietndecmnennnemmbiniapeseneenel 28 Commonwealth v. Pon, 469 Mass. 296, 14 gS Eee 29 Commonwealth v. Tedford, 598 Pa. 639, 960 a essarereeaminciatbiegsil 29 Cuzze v. Univ. & Cmty. Coll. Sys., 172 P.3d 131 i ltchacedenatemeieneiletelamaiarraeti hil 27 Davidson v. Boone Cty., 745 N.E.2d 895 (Ind. SI TTT scscstnnieriteiisatintinicsinaiieineasipmennsaiaeentinaiiia 26 DeNardo v. Municipality of Anchorage, 775 SEIT 24, 25 Dowd v. City of New Richmond, 405 N.W.2d 66 eileen etait 28 Elmendorf v. Taylor, 23 U.S. 152 (1825).................... 20 Est. of Bohn v. Scott, 915 P.2d 1239 (Ariz. App. BE Tec nsinthinininesiiaraiaidanmneiitiaiinemnitdimmesatiiid 25 v. Prudential-Bache Sec., Inc., 495 SL Ten nee 29 Fox v. Vice, 563 U.S. 826 (2011) .............ccccccccceeeeeeeeees 30 Gardner v. Bd. of County Comm’rs of Wasatch County, 178 P.3d 893 (Utah 2008).....................0000. 28 Gates v. Discovery Commce’ns, Inc., 34 Cal. 4th 679, 101 P.3d 552 (Cal. 2004) ................................. 29 viii TABLE OF AUTHORITIES — Continued Page Grp. Dekko Servs. LLC v. Miller, 717 N.E.2d I i crlliearenel 29 Haywood v. Alexander, 121 So. 3d 972 (Ala. ESS AEE AS LENE nN BeNOR S A ee 29 Hebert v. Louisiana, 272 U.S. 312 (1926).................. 21 Hensley v. Eckerhart, 461 U.S. 424 (1983) ................ 26 Herndon v. Georgia, 295 U.S. 441 (1935) .................. 33 Howlett v. Rose, 496 U.S. 356 (1990) ................... 12, 22 Hughes v. Rowe, 449 U.S. 5 (1980) .................... passim In re Fifth Third Bank, Nat. Ass’n, 216 N.C. App. 482, 716 S.E.2d 850 (N.C. 2011).................... 29 James v. City of Boise 351 P.3d 1171 (2015)................ 1 Jaynes v. Commonwealth, 276 Va. 443, 666 TSE a cE 29 Johnson v. City of Mobile, ___ So. 3d ___, 2015 WL 5725089 (Ala. Sept. 30, 2015).......................ee 25 Johnson v. Fankell, 520 U.S. 911 (1997) ................... 18 Karr v. Bermeosolo, 129 P.3d 88 (Idaho 2005)........... 33 LaBarre v. Payne, 329 S.E.2d 533 (Ga. App. EERIE” “SIDR Sees rae RTO O NOES 26 Lefemine v. Wiedman, 133 S. Ct. 9 (2012) ................. 30 Littlefield v. State, 480 A.2d 731 (Me. 1984).............. 29 Lucas v. Riverside Park Condo. Unit Owners Ass’n, 776 N.W.2d 801 (N.D. 2009).......................-. 27 ix TABLE OF AUTHORITIES — Continued Page M.S. v. People, 2013 CO 35, 303 P.3d 102 (Colo. RSE EERSTE DSRS Sonor nate ete 29 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) ESSE er eae ONECART 22, 23 McCarthy v. Oregon Freeze Dry, Inc., 327 Ore. 185, 957 P.2d 1200 (Ore. 1998) ............0.eece cece eee 28 Miller v. Henderson, 322 S.E.2d 594 (N.C. Ct. ST TIT iis caiicenat nbicetisnninianeinianledatapenuatetitiamasianaiel 27 Moran v. City of Lakeland, 694 So. 2d 886 (Fla. SIN, TIT oiccricasiciniiginmniineniimiuaaniaenianial 26 Nation v. State, Dept. of Correction, 158 P.3d SRST IEEE TASTE CE ET 33 Newman v. Piggie Park Enterprises, 390 U.S. a a 21, 22 Nitro-Lift Technologies, L.L.C. v. Howard, 133 ii ial 18, 19, 20 Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158 EE SESE mas toresanan ven enn a en CoN eS Deva 23 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)............. 38 Octane Fitness, LLC v. ICON Health & Fitness, i: ey ts Se ccttiticrtnninnnictieneciisarensncnes 30 Oklahoma Personnel Serv. v. Alternate Staff- ing, Inc., 817 P.2d 1265 (Okla. 1991)...................... 27 Park v. Dept. of Corrections, 307 P.3d 503 (Or. san UII cnccsniaintinciiiisinhinecinintedaindeuanbidiiinibtainnanitenmeet 27 Patsy v. Bd. of Regents of Florida, 457 U.S. 496 x TABLE OF AUTHORITIES — Continued Page People v. Gillam, 479 Mich. 253, 734 N.W.2d Ey Git cnrisnedbbiicnnctiinatinsneminimieetinneinnmmnpeninent 29 Peraica v. Riverside-Brookfield High Sch. Dist. No. 208, 999 N.E.2d 399 (Ill. App. 1st Dist. SI iacsunncisiadietnicinnpmemeinensebebnimsiaintbintababiiiommenneneds 26 Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 SEI dcncenctiescininsiesennisinandemnsdusieneniesianiaaibigainmaeimeianent 31 Provident Inst. for Savings v. Massachusetts, | 4 | REEL SEs keene 21 Radio Station WOW v. Johnson, 326 U.S. 120 Sin iceicintncnsendetedsimainiiiiibdaninaumnmmnnmmninmene 34 Revering v. Ackerson, 1995 WL 130618 (Minn. SEI UTED iciiiceinpninicinitnnleiniiaininiiniinninipineinitiieipiiendlipensvunpil 26 Riley v. Gibson, 338 S.W.3d 230 (Ky. 2011)................ 29 Rivers v. Roadway Express, Inc., 511 U.S. 298 STITT chiinmieeesslneeiabaiaebiahidhiaaiaitanhhanianinieeenitiiabiieiann 20 Rubio v. Carlsbad Mun. Sch. Dist., 744 P.2d Be SU, IGE crernccscssnssssneneevmenmnenemneeee 27 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)....... 18 Santiago v. Municipality of Adjuntas, 741 F. Supp. 2d 364 (D.P.R. 2010) .0...........ccceececeeeeeeeeeees 10 Sebelius v. Cloer, 133 S. Ct. 1886 (2013) ................... 30 Shaw v. PACC Health Plan, Inc., 908 P.2d 308 SESTEnE: FEIT shicnsecipanincsistsniseesapeiiainiteinieadihlainiiniemnbiiaaiiainenintie 29 Shepherd v. Carbon County Bd. of Comm'rs, 46 TST RETR EOC 27 xi TABLE OF AUTHORITIES — Continued Page Shields v. Carbone, 952 N.Y.S.2d 649 (N.Y. i IEE SE ciccainteieisindinceimnemninmneenenenaieinaneemnes 27 Shuba v. Austintown Bd. of Educ., 1985 WL 10371 (Ohio Ct. App. 1985)...................ccccceeeeeeeeeeees 27 Simonian v. Town of Hull, 1993 Mass. Super. LEXIS 17 (Mass. Super. Ct. 1993).....................000+8 26 Singhaviroj v. Bd. of Educ. of Town of Fair- field, 17 A.3d 1013 (Conn. 2011)...................ccccceeeee 25 Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc), cert. denied, 545 U.S. 1128 ERIS TES RES SERIE EE ec Ie ee 36 South Carolina v. Bailey, 289 U.S. 412 (1933).......... 21 Sprague v. City of Burley, 710 P.2d 566 (Idaho RATERS SR NARS ea Na SERRE SAS eee 20 State v. Coleman, 214 A.2d 393 (N.J. 1965)............... 29 State v. Golden’s Concrete Co., 962 P.2d 919 RESET REE Naan Le aa ae ea 25 State v. Maine State Troopers Ass’n, 491 A.2d eit 26 State v. Mechtel, 499 N.W.2d 662 (Wis. 1993) ........... 29 State v. Radcliffe, 164 Wash. 2d 900, 194 P.3d I liiiesiniamid 29 Stop the Beach Renourishment, Inc. v. Fla. Dept. of Env. Protection, 560 U.S. 702 (2010)........ 33 Studio 45 Discotheque, Inc. v. City of Union, 2008 WL 583795 (N.J. Super. Ct. App. Div. asian paella ibimimiiieeaiid 27 xil TABLE OF AUTHORITIES — Continued Page Torres-Santiago v. Municipality of Adjuntas, GES F.G SEO (lat Cle, BOER) ..ccccccccecccescecescccescccscccces 10 United States v. Gilbert Assocs., 345 U.S. 361 SITET hicsechidihaicieni nisin ieaeiekinhipliin 21 United States v. Lanier, 520 U.S. 259 (1997) ............ 35 Varney v. Genesee County Sheriff, 393 N.W.2d 1 SEI: SUITE iieiclicstnindceisadeisninincatdbacatiagniniblalinebdiednisintdiadinabendeveis 26 Varney v. O’Brien, 383 N.W.2d 213 (Mich. App. RAR AR ESDP ESENE Sie oe PC Ee So SP ie ns RP e re nee ES 26 Washington State Republican Party v. Wash- ington State Pub. Disclosure Commn., 4 P.3d ET I eer er oe 28 Watkins v. City of Oakland, 145 F.3d 1087 (9th _ g_ SERS eae e eveeE oee ene ne ea 35 Yellow Freight System, Inc. v. Saisie 494 i es 17 Youngbluth v. Youngbluth, 2010 VT 40, 4 16, 188 Vt. 53, 6 A.3d 677 (Vt. 2010)........... eee 29 CONSTITUTIONAL PROVISIONS ees i MI, Gt EO, Ot no sncenscensetiinnsnbnnnbionies 22 ee LL IE, EU OE I dicccedenensecnsenndiommiinnubedasaumane 1,19 STATUTES Individuals with Disabilities Education Act, 20 i cciiedineminionbided 31 xili TABLE OF AUTHORITIES — Continued Page I le ae 1 Rehabilitation Act, 29 U.S.C. § 794a(b)...................4. 31 I IIIT hicntciscesennsicsvepnitiinigiateciianensndsniommies passim FARE eae nnon arr eneaet are passim Fair Housing Amendments Act of 1988, 4° a I ts rnc aicinetnnantinainaiid 31 Americans with Disabilities Act, 42 U.S.C. TT isirt ict clita dcidniienlimeiennunnineaendatianiinendantd 31 ETE ye cece ean ane Oe ree 12 RESET ILESIION Na een O ee neon 12 STITUTE iiikacinsiahciiceihhiininibinicindacticaiandiiienindatdidsishtindiiboshana passim OTHER AUTHORITIES Ballotpedia, Local government responses to Obergefell v. Hodges (Oct. 2, 2015)..................000000 38 Charles J. Dean, Moore: Gay marriage ‘not in accordance with the Constitution’ (Mobile, AL), Press-Register, July 1, 2015, at Al0.............. 38 S.Rep. No. 1011, 94th Cong., 2nd Sess. 4 (1976), reprinted in 1976 U.S. Code Cong. & FERS aaa ren 24 Stephen M. Shapiro, et al., Supreme Court Praction 196 (106i OG. BOTS) .....0scccccccccccccccesccccccosees 33 1 PETITION FOR A WRIT OF CERTIORARI Petitioner, Melene James, respectfully petitions for a writ of certiorari to review the judgment of the Idaho Supreme Court in this case. « OPINIONS BELOW The opinion of the Idaho Supreme Court (App. 1- 63) is reported at 351 P3d 1171. The order of the Idaho Supreme Court denying rehearing (App. 133, 134) is unreported. The memorandum decision and order of the Idaho District Court for the Fourth Judicial District on Defendants’ Motion for Summary Judgment (App. 64-130) is also unreported. S JURISDICTION The Idaho Supreme Court entered the judgment on May 21, 2015. It denied rehearing on July 20, 2015. (App. 133). This Court’s jurisdiction rests on 28 U.S.C. § 1257(a). ° CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED A. The Supremacy Clause, U.S. Const., art. VI, cl. 2, states: This Constitution, and the Laws of the United States which shall be made in 2 Pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. B. 42 U.S.C. § 1988 states in relevant part: § 1988. Proceedings in vindication of civil rights * * * (b) Attorney’s fees In any action or proceeding to enforce a provision of sections 1981, 198la, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, the Religious Land Use and Institutionalized Persons Act of, title VI of the Civil Rights Act of 1964, or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any ac- tion brought against a judicial officer for an act or omission taken in such officer’s judi- cial capacity such officer shall not be held li- able for any costs, including attorney's fees, unless such action was clearly in excess of such officer’s jurisdiction. * * * Sf 3 INTRODUCTION Petitioner was mauled by a police dog while she was working one Sunday afternoon in the office from which she runs a small business. The Boise (Idaho) police loosed the dog on her because they mistook her for a burglar. Petitioner sued the City of Boise and the responsible police officers in Idaho state court, asserting state-law claims as well as excessive-force claims under 42 U.S.C. § 1983. The state trial-level court dismissed her claims, and the Idaho Supreme Court affirmed the dismissal. Petitioner does not con- cede the correctness of that ruling, nor does petitioner seek further review of it in this Court. Petitioner does, however, seek review of the Idaho Supreme Court’s decision awarding attorney’s fees on appeal against petitioner under 42 U.S.C. § 1988. In seeking those fees, respondents recognized that they had to show that petitioner’s appeal from the dismissal of her § 1983 claim was “frivolous, unreasonable, or without foundation” — as established by this Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), for fee awards against Title VII plaintiffs, and as extended by this Court in Hughes v. Rowe, 449 U.S. 5 (1980), to fee awards against § 1983 plaintiffs. But rather than follow Christiansburg and Hughes, the Idaho Supreme Court sua sponte held that neither it nor any other state court is bound by them. In its view, “[aJlthough the [U.S.] Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state 4 courts where such limitation is not contained in the statute.” (App. 55). In its written opinion, the Idaho Supreme Court accordingly did not apply the Chris- tiansburg/Hughes standard in awarding attorney's fees against petitioner under § 1988. In refusing to apply the Christiansburg/Hughes standard, the Idaho Supreme Court not only misin- terpreted important federal civil rights statutes but also fundamentally misunderstood this Court’s au- thority over state courts. The Idaho Supreme Court’s error is neither inadvertent nor innocuous. To the contrary, that court’s studied disregard of the control- ling precedent of this Court significantly deters plaintiffs from asserting federal rights in the Idaho state courts. The Idaho Supreme Court’s decision could also have a pernicious effect in a current na- tional climate characterized by some deeply disturb- ing instances of state-level resistance to the supremacy of federal law. ¢ STATEMENT OF THE CASE 1. On December 26, 2010, petitioner Melene James was a 49-year-old resident of Boise, Idaho, and worked as a denturist. Clerk’s Record on Appeal (“R.”) 390, 700. She had just finished cooking a holiday meal for her family when a friend called needing emergency work on a denture. R. 394, 700. Ms. James walked half a block to the building where she leased space to run her small business, Renaissance Dental 5 Lab. R. 391, 394, 701. She entered the building with her key and started work on the denture. R. 394, 702. When she reached the point in her work where the repaired denture needed 15 minutes to “cure,” she left the building to smoke a cigarette. R. 395, 701. Then she realized that she had locked herself out, having left her purse with her keys and phone inside the dental lab. R. 395, 701. Ms. James did not want to leave the immediate area to call her landlord because her equipment was still running inside and posed a fire hazard. R. 396, 701. She accordingly went to a window that was usually left unlocked to ventilate the dental lab. R. 396, 397, 701, 702. While trying to open the window, her hand slipped, causing her elbow to hit the win- dow and break it. R. 397, 702. As she started to climb through the window, a neighbor, who had heard the glass breaking, came over and asked her if she needed help. R. 397, 702. Ms. James told him that she had locked her keys inside. R. 397, 702. The neighbor found Ms. James’ behavior peculiar and called 911 at around 5:20 pm. R. 410, 703. He told the 911 operator that a woman who’d claimed to have left her keys inside the building was climbing in through a broken window. R. 410, 801, 802. The * Respondent, Steven Butler, was the first police officer on the scene. In his narrative report, Butler did not mention the neighbor reporting that Ms. James had left her keys inside the building. Instead, Butler’s narrative said the dental office “was reportedly being burglarized.” R. 414. 6 neighbor also reported that the woman appeared to be “lethargic” and “totally out of it.” R. 410, 685. In the meantime, Ms. James finished repairing the denture. R. 397, 398, 702, 703. She planned to call her landlord after she used the bathroom. R. 398, 702, 703. It was while she was in the bathroom that she was attacked by the police dog. R. 555. While Ms. James was inside resuming work on the denture, outside the building, police began arriv- ing. Respondent Steven Butler was the first officer on the scene. R. 423. According to Officer Butler’s later account, he spoke with the neighbor and then looked around the outside of the building. R. 425, 426, Through one of the windows, he could see Ms. James standing inside a lighted room, about six to eight feet away from the window. R. 428, 431. She was standing at a work bench, holding a can of malt liquor in one hand and dental tools in the other. R. 414, 429. Of- ficer Butler did not call out to her or otherwise try to get her attention. R. 431. Officer Butler was joined at the scene by several other officers, including respondent Tim Kukla. R. 410. Within ten minutes after the 911 call, the police had established a perimeter around the building and requested a K-9 unit. R. 410, 475, 705. A civilian at the scene — whom one of the officers later referred to only as the “cleaning lady” — told officers that a woman worked inside the building. R. 575. As the “cleaning lady” began to describe the woman, she was cut off by the owner of the building, who had shown up then. R. 575. The owner told the police that no one 7 should be in the building, especially if they had to break a window to get in. R. 555. Respondent Steven Bonas arrived with his police dog at around 6:10 pm. R. 411, 706. About seven minutes later, Bonas made the decision to use the dog. R. 411, 708. An initial shouted warning was issued upon entry to the building and another was issued on the upstairs level while the officers searched. R. 593, 594. A few minutes after initial entry, Officer Bonas arrived at a stairwell leading to the basement where another shouted warning was given. R. 593, 594, 710. Bonas then let the dog loose to the basement where he was out of sight of the handler and on a different level of the building. R. 593, 710.’ The dog found Ms. James in the bathroom. R. 555. As the officers descended, it was noted that the bathroom door was initially open a few inches but then it closed, leaving Ms. James alone inside with the dog. R. 594, 711. When the officers finally got the bathroom door open, they found Ms. James lying on the ground with her pants pulled down below her knees. R. 648, 711. She was then handcuffed, searched, and taken to the emergency room. R. 594, 711. * Two officers claimed in their later accounts that, in addition to the shouted warnings that the police gave after éntering the building, they also gave one or more warnings, while outside the building, through the public address system atop one of the police cars. R. 432, 708. 8 At the emergency room, Ms. James was found to have a broken arm and multiple puncture wounds on her cheek, arm, and hand. R. 603, 604, 596-600. Her blood alcohol content was 0.27. Ms. James later admitted at her deposition that she had been drink- ing while cooking the holiday meal and had drunk a beer while at the dental lab. R. 394, 398. A later medical evaluation reported that, besides the injuries noted at the emergency room, Ms. James had a fractured spine and suspected nerve damage. R. 603, 604, 712. 2. Ms. James sued the City of Boise and four police officers in the District Court for the Fourth Judicial District of Idaho. R. 6.° She asserted excessive-force claims against all the defendants under 42 U.S.C. § 1983, relying on the Fourth, Fifth, and Fourteenth Amendments. R. 15. She also assert- ed state-law claims of assault, battery, false arrest, wrongful imprisonment, negligent supervision, and intentional infliction of emotional distress. R. 14. The district court granted summary judgment for defen- dants and dismissed all of Ms. James’ claims. (App. 64). 3.a. The Idaho Supreme Court affirmed the dismissal of petitioner’s claims, including her § 1983 * Plaintiffs conceded to the dismissal of one original defen- dant, Officer Rodney Likes, when discovery revealed that his involvement was post event only. R. 653. 9 claims against the individual respondents and the respondent City of Boise. (App. 1-63). The Idaho Supreme Court held that qualified immunity barred Ms. James’ § 1983 claims against the individual respondents. (App. 13-34). In so hold- ing, the court relied on three Ninth Circuit decisions rejecting excessive-force claims based on police dog attacks. (App. 34). The court admitted that, of those three Ninth Circuit cases, even the one that was “most similar to” the present case involved “some significant factual difference.” (App. 34). b. Justice Jim Jones issued a concurring opin- ion. He agreed that qualified immunity barred peti- tioner’s § 1983 claims. “Had there been no qualified immunity issue,” however, Justice Jones “would have voted to vacate the * * * dismissal of James’ excessive force claim.” (App. 57). That is because, in his view, “there were triable issues of fact that would have precluded summary judgment.” (App. 57). Specifically, Justice Jones cited the affidavit of petitioner’s expert, who had an advanced degree in criminal justice and “52 years of experience in various law enforcement positions,” including “work as a canine instructor and supervisor.” (App. 58). His affidavit “raised questions about the existence of probable cause and the need for the use of the magni- tude of force employed by the officers.” (App. 58). Justice Jones concluded that the district court “had no basis for discounting” the expert’s opinions. (App. 59-63). 10 c. In the Idaho Supreme Court, respondents requested an award of the attorney’s fees that they spent on the appeal. For petitioner’s § 1983 claim, respondents based their fee request on 42 U.S.C. § 1988. For petitioner’s state-law claims, respondents requested fees under two Idaho statutes. In seeking fees under § 1988, respondents recog- nized that they had to establish not only that they were prevailing parties but also “that the plaintiff’s suit was ‘totally unfounded, frivolous, or otherwise unreasonable or that the plaintiff continued to liti- gate after it clearly became so.’” (App. 136) (quoting Santiago v. Municipality of Adjuntas, 741 F. Supp. 2d 364 (D.P.R. 2010), vacated and remanded sub nom. Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230 (1st Cir. 2012)). The decision in Santiago, from which respondents drew the latter requirement, derived it, in turn, from this Court’s decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and a First Circuit decision citing Christians- burg. See Santiago, 741 F. Supp. 2d at 370 (quoting Christiansburg, 434 U.S. at 412, and Casa Marie Hogar Geriatrico, Inc., et al. v. Esther Rivera-Santos, et al., 38 F.3d 615, 619 (1st Cir. 1994)). Respondents did not suggest in their fee request that the Idaho Supreme Court could ignore the Christiansburg standard in deciding whether to award fees under § 1988. (App. 136, 137).* * See Plaintiff’s Memorandum in Opposition to Costs and Attorney Fees at 2 n.3 (filed June 18, 2015) (noting that (Continued on following page) 11 The Idaho Supreme Court awarded respondents the attorney’s fees they incurred defending against petitioner’s appeal of the dismissal of her § 1983 claim. (App. 55). The court acknowledged that in Hughes v. Rowe, 449 U.S. 5 (1980), this Court relied on Christiansburg to hold that “attorney fees could not be awarded to a prevailing defendant in a case brought pursuant to 42 U.S.C. section 1983 unless the plaintiff’s action was frivolous, unreasonable, or without foundation.” (App. 55) (quoting Hughes, 449 U.S. at 14). But the Idaho Supreme Court observed that both Christiansburg and Hughes “were appeals from cases in federal district courts.” (App. 55). In its view, “[a]lthough the [U.S.] Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute.” (App. 55). “Therefore,” the Idaho Supreme Court concluded, “in cases filed in the Idaho state courts seeking to recover under 42 U.S.C. section 1988, the [Idaho Supreme] [CJourt has discre- tion in deciding to award attorney fees to the prevail- ing party, whether the prevailing party is the plaintiff or the defendant.” (App. 55). “[rlespondents’ stated basis for attorney’s fees under 42 U.S.C. § 1988 was the standard imposed by the United States Supreme Court and federal circuits which this Court has declined to follow.”); id. at 1 n.1 (noting that, at the time plaintiff filed its memo in opposition to costs and attorney fees, “(t]he [Idaho Supreme] Court’s Order allowing attorney fees is subject to a Petition for Rehearing”). (App. 142, 143). 12 Based on this conclusion, the court awarded fees against petitioner under § 1988 on the ground that “(i]t was clear that her [§ 1983] claim would be barred by qualified immunity.” (App. 55, 56). In contrast, the court denied fees under the Idaho statutes cited by respondents. Fees were not available under Idaho Code § 12-117, the court concluded, because it could “not find that Plaintiff brought this appeal regarding her state law claims without a reasonable basis in fact or law.” (App. 56). The court further held that fees were not available under Idaho Code § 12-121 “[blecause the appeal regarding Plaintiff’s claims under state law was not brought or pursued frivolous- ly, unreasonably or without foundation.” (App. 56). Petitioner timely petitioned for rehearing on the court’s award of fees under § 1988. (App. 138). Peti- tioner argued that “[uJnder the Supremacy Clause of the United States Constitution, it is a fundamental notion that the decisions of the U.S. Supreme Court interpreting federal statutes and determining con- gressional intent are binding upon state courts.” (App. 139) (citing Howlett v. Rose, 496 U.S. 356 (1990)). Petitioner explained that this fundamental notion applies equally to the “construction and appli- cation of § 1988 — a federal statute.” (App. 139). By failing to follow this Court’s decisions interpreting § 1988, petitioner concluded, “the Idaho Supreme Court improperly nullified federal law.” (App. 143). The Idaho Supreme Court denied rehearing without opinion. (App. 133). ° 13 REASONS FOR GRANTING THE WRIT I. The Idaho Supreme Court’s Decision Con- flicts with Decisions of this Court. A. The Idaho Supreme Court’s Decision Conflicts with Hughes v. Rowe and Christiansburg Garment Co. v. EEOC. This Court held in Christiansburg Garment Co. v. EEOC that the prevailing defendant in a Title VII case can recover attorney’s fees only “upon a finding that the plaintiff’s action was frivolous, unreasona- ble, or without foundation.” 434 U.S. 412, 421 (1978). In Hughes v. Rowe, this Court “could perceive no reason for applying a less stringent standard” for awarding attorney's fees to prevailing defendants in actions under 42 U.S.C. § 1983. 449 U.S. 5, 14 (1980). In this case, however, the Idaho Supreme Court did not apply the “frivolous, unreasonable, or without foundation” standard in awarding fees to the prevail- ing defendants on petitioner’s § 1983 claim. The Idaho Supreme Court’s failure to do so squarely conflicts with Christiansburg and Hughes. The Idaho Supreme Court’s failure to apply the standard established by this Court is deliberate and obvious on the face of its opinion. Its reasoning pro- ceeded in three steps: 1. Hughes and Christiansburg “were ap- peals from cases in federal district courts.” (App. 55). 2. Although this Court “may have authori- ty to limit the discretion of lower federal 14 courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute.” (App. 55). 3. The “frivolous, unreasonable, or without foundation” standard “is not contained in” the text of § 1988; “[t]herefore,” the Idaho Supreme Court “has discretion” to award attorney’ fees to a prevailing party without regard to that standard, “whether the party is the plaintiff or the defendant.” (App. 55). The Idaho Supreme Court accordingly did not con- clude in its opinion that petitioner’s appeal of her § 1983 claim was frivolous, unreasonable, or without foundation. In contrast, the court did refuse fees under one of the Idaho fee-shifting statutes because it could not find that petitioner’s appeal of her state-law claims was brought “frivolously, unreasonably or without foundation.” (App. 56). Rather than apply that same standard to petitioner’s appeal of her § 1983 claim, the court awarded fees against her on the appeal of that claim because it believed that the § 1983 claim was “clear{ly]” barred by qualified immunity. (App. 55). Although the court did not explain that determination, its reasoning — coupled with its explicit use of the “frivolous, unreasonable, or without foundation standard” for applying an Idaho fee-shifting statute — leaves no doubt that the court stopped short of finding petitioner’s appeal of her § 1983 claim “meritless in the Christiansburg sense,” 15 as this Court required in Hughes, 449 U.S. at 15, for a fee award against a § 1983 plaintiff. This Court, however, said nothing in Christians- burg or Hughes to suggest that its interpretation of Title VII and § 1988 applies only in lower federal courts. To the contrary, the Court’s reasoning applies equally to suits in federal court and state court. In Christiansburg, the Court addressed “under what circumstances an attorneys fee should be allowed when the defendant is the prevailing party in a Title VII action.” 434 U.S. at 414. The Court reject- ed both the defendant’s and the plaintiff’s proffered interpretations of Title VII's fee-shifting provision. The defendant (a garment company) argued that a prevailing defendant should be entitled to an award of fees under the same standard as a prevailing plaintiff. The Court rejected that argument because of “two strong equitable considerations” that justify treating prevailing plaintiffs more favorably than prevailing defendants in Title VII suits. Jd. at 418. First, the plaintiff “is the chosen instrument of Con- gress to vindicate a policy that Congress considered of the highest priority.” Jd. Second, an award in favor of a prevailing plaintiff is an award against “a violator of federal law.” Jd. Those two considerations apply tegardless whether the plaintiff sues in state court or federal court. _ The plaintiff EEOC argued in Christiansburg that fees should be awarded to a prevailing defendant if the plaintiff’s action was brought in bad faith. 16 The Court found this argument inconsistent with congressional intent. The Court explained that it would not lightly assume that Congress intended to “distort” the adversary process by “giving the private plaintiff substantial incentives to sue, while foreclos- ing to the defendant the possibility of recovering his éxpenses in resisting even a groundless action unless he can show that it was brought in bad faith.” Jd. at 419. The Court found no evidence of congressional intent to so distort the process. See id. at 420. Thus, the Court’s rationale for rejecting the plaintiff EEOC’s interpretation, like its rationale for rejecting the defendant garment company’s interpretation, drew no distinction between suits in federal court and those in state court. The Court in Christiansburg ultimately adopted a standard for awarding fees to prevailing Title VII defendants that appropriately accommodated “the competing considerations” and reflected Congress’s intent as best the Court could discern it. /d. at 420, 421. The Court in Hughes adopted the same stan- dard, on the same basis, for prevailing § 1983 defen- dants. See Hughes, 449 U.S. at 14. None of those considerations varies depending on whether a plain- tiff sues in federal or state court. Nor is it tenable that Congress intended different standards for fee awards, depending on whether a plaintiff sues in federal or state court. Although the Court in Christiansburg described the standard that it adopted as the one that “should inform a district court’s discretion” (id. at 417 17 (emphasis added)), that description does not limit the applicability of the standard to lower federal courts. The Court’s description simply reflected one or more of three circumstances: (1) the case before it arose in a district court, id. at 415; (2) the case presented a question “about which the federal courts ha[d] expressed divergent views,” id. at 414; (3) the Court addressed the standard that federal district courts should use be- cause most Title VII actions were brought in federal courts, rather than in state courts, at the time of the Court’s decision in 1978.° Under these circumstances, coupled with the Court’s reasoning (discussed above), the Court’s holding in Christiansburg plainly is not limited to federal courts. This is not a situation in which a decision of this Court does not bind a state court. Specifically, the * This Court did not decide until 1990 that state and federal courts have concurrent jurisdiction over Title VII actions. Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823-826 (1990). In Donnelly, this Court noted that at the time of its decision, four federal courts of appeals had held that federal courts have exclusive jurisdiction over Title VII actions, and that, in 1980, the EEOC likewise had taken the position in this Court that federal courts have exclusive jurisdiction over Title VII actions. Id. at 822 n.2. 18 decisions in Christiansburg and Hughes do not inter- pret a federal statute that applies only in the federal courts. Cf. Johnson v. Fankell, 520 U.S. 911, 916 (1997). Nor do Christiansburg and Hughes rest on this Court’s supervisory power over the lower federal courts. See generally Sanchez-Llamas v. Oregon, 548 U.S. 331, 345, 346 (2006). Rather, Christiansburg Garment and Hughes rest on this Court’s conclusion that the “frivolous, unrea- sonable, or without foundation” standard for fee awards to prevailing defendants reflects the “correct” interpretation of Title VII’s fee-shifting provision and § 1988. Christiansburg, 434 U.S. at 421 (emphasis added); see also Hughes, 449 U.S. at 14. The Idaho Supreme Court was bound by that interpretation. B. The Idaho Supreme Court’s Decision Conflicts with Decisions of this Court Es- tablishing the Supremacy of this Court’s Interpretation of Federal Statutes. The Idaho Supreme Court’s decision conflicts with the many decisions in which this Court has made clear that state courts must follow this Court’s interpretation of federal statutes. The most recent such decision is Nitro-Lift Tech- nologies, L.L.C. v. Howard, 133 8. Ct. 500 (2012) (per curiam). There, the Court reviewed a decision of the Oklahoma Supreme Court declaring two noncompeti- tion agreements invalid under Oklahoma law. Al- though those agreements had arbitration clauses, the 19 Oklahoma Supreme Court decided the validity of the agreements itself, rather than leaving the issue to the arbitrator. The Oklahoma Supreme Court “chose to discount” decisions of this Court interpreting the Federal Arbitration Act (FAA) to require an arbitra- tor, not a court, to decide the validity of agreements with valid arbitration clauses. Jd. at 502. The Okla- homa Supreme Court “acknowledged” this Court’s decisions, but concluded that “its [own] jurisprudence controls this issue.’” Jd. at 503 (quoting Oklahoma Supreme Court’s opinion; bracketed text inserted by Court in Nitro-Lift). This Court vacated the Oklahoma Supreme Court’s judgment. This Court observed that “the substantive law the [FAA] created [is] applicable in state and federal courts.” /d. (internal quotation marks omitted; first bracketed text added; second bracketed text inserted by Court in Nitro-Lift). The Court explained that this Court’s decisions interpret- ing the FAA are, like the FAA itself, equally applica- ble in and binding on the state courts: [T]he Ok!ahoma Supreme Court must abide by the FAA, which is “the supreme Law of the Land,” U.S. Const., Art. VI, cl. 2, and by the opinions of this Court interpreting that law. “It is this Court’s responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” 20 Nitro-Lift, 133 S. Ct. at 503 (quoting Rivers v. Road- way Express, Inc., 511 U.S. 298, 312 (1994)). The reasoning of Nitro-Lift applies equally here. Section 1988 applies in state courts, like Idaho’s, that entertain actions under § 1983. See, e.g., Sprague v. City of Burley, 710 P.2d 566, 577-579 (Idaho 1985) (reversing summary judgment for police officers in action asserting excessive-force claim under § 1983). In state-court actions where § 1988 applies, the state courts must abide not only by § 1988 but also by this Court’s decisions interpreting § 1988. Just as the Oklahoma Supreme Court could not disregard this Court’s decisions interpreting the FAA, the Idaho Supreme Court could not ignore this Court’s decisions in Christiansburg and Hughes. Nitro-Lift accords with two centuries of prece- dent. By the same token, the Idaho Supreme Court’s decision conflicts with that same precedent by erro- neously treating this Court’s interpretation of a federal statute as separate from, and of a lower status than, the statute itself. When this Court construes a federal statute, that construction reflects “the true construction” that binds all courts. Elmen- dorf v. Taylor, 23 U.S. 152, 160 (1825) (per Marshall, C.J.). State courts have no more discretion to “depart from that construction, than to depart from the words of the statute.” Jd. (making this statement with reference to a court’s departure from the interpreta- tion of another nation’s laws by the courts of that nation). To the contrary, this Court’s interpretation of a federal statute — like a state supreme court's 21 interpretation of a statute of that State — is as bind- ing “as if written into the statute[]” itself. Hebert v. Louisiana, 272 U.S. 312, 317 (1926) (making this statement with reference to state supreme court's interpretation of state statutes). A state court cannot disregard this Court’s inter- pretation of a federal statute just because, in the state court’s estimation, this Court’s interpretation “limit[s] the discretion of state courts” in a way that “is not contained in the statute.” (App. 55). Were state courts free to do so, they could ignore many decisions in which this Court has interpreted 42 U.S.C. § 1988 and other federal fee-shifting statutes to constrain the “discretion” expressly granted in those statutes. For example, this Court interpreted a discretionary fee-shifting provision in the Civil Rights Act of 1964 to hold that a prevailing plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968) (per curiam). State courts cannot * See also, e.g., United States v. Gilbert Assocs., 345 U.S. 361, 363 n.23 (1953) (“The Supreme Court of New Hampshire freely concedes * * * , as it must, that the meaning of a federal statute is for this Court to decide.”); South Carolina v. Bailey, 289 U.S. 412, 420 (1933) (“[I}t was the duty of [the state court) to administer the law prescribed by the Constitution and statute of the United States, as construed by this Court.”); Provident Inst. for Savings v. Massachusetts, 73 U.S. 611, 628, 629 (1867) (“[Tjhe decisions of this court in cases involving Federal ques- tions are conclusive authorities in the State courts * * * .”). 22 ignore this interpretation — which “vindicate(s) a policy that Congress considered of the highest priori- ty,” id. — even though it constrains their discretion and the Court did not tie its interpretation to explicit statutory text. State courts have no more discretion to ignore this Court’s decisions interpreting § 1988 and other fee-shifting statutes than they do to ignore this Court’s decisions interpreting § 1983 and other rights-protecting statutes. Cf Howlett v. Rose, 496 U.S. 356, 376 (1990) (“[S]ince th[is) Court has held that municipal corporations and similar governmen- tal entities are ‘persons,’ a state court entertaining a § 1983 action must adhere to that interpretation.”) (citations omitted). Most fundamentally, the Idaho Supreme Court’s decision conflicts with decisions of this Court estab- lishing its power to review state court decisions that rest on federal law. Those decisions include Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), in which the Court held that its appellate jurisdiction under Article II], §2, clause 2, extends to cases decided by state courts. 14 U.S. at 351. The Court based this holding partly on its view of one of the motives that induced the Constitution’s grant of appellate jurisdiction over the state courts’ decisions: That motive is the importance, and even ne- cessity of uniformity of decisions throughout the whole United States, upon all subject within the purview of the Constitution. Judges * * * in different states, might differ- ently interpret a statute, or a treaty of the 23 United States, or even the constitution itself: If there were no revising authority to control these jarring 2nd discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states * * * . The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution. Id. at 347, 348 (emphasis in original). This Court could not achieve the uniform inter- pretation of federal statutes if its decisions interpret- ing those statutes did not bind state courts. By refusing to be bound by this Court’s decisions in Christiansburg and Hughes, the Idaho Supreme Court denied the premise of Martin v. Hunter’s Lessee and this Court’s tradition of reviewing, and correct- ing, state court decisions interpreting federal stat- utes.’ " See, e.g., Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014) (reversing Colorado Supreme Court decision inter- preting federal Aviation and Transportation Security Act); Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (reversing South Carolina Supreme Court decision interpreting federal Indian Child Welfare Act); Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158 (2007) (vacating and remanding Missouri Court of Appeals decision interpreting Federal Employers’ Liability Act). 24 Ii. The Idaho Supreme Court’s Decision Con- flicts with Decisions of Other Lower Courts. A. The Idaho Supreme Court’s Decision Conflicts with Decisions of Other State Supreme Courts That Follow Hughes v. Rowe and Christiansburg Garment Co. v. EEOC. In DeNardo v. Municipality of Anchorage, 775 P.2d 515 (Alaska 1989), the Alaska Supreme Court recognized its obligation to follow Hughes v. Rowe and Christiansburg Garment Co. v. EEOC when it denied a defendants request for attorney fees under § 1988. The Alaska court recognized that, while the statute did not speak explicitly to the propriety of awarding attorney fees to prevailing defendants, there was little doubt as to congressional intent: [Plaintiffs] should not be deterred from bringing good faith actions to vindicate the fundamental rights here involved by the pro- spect of having to pay their opponent’s coun- sel fees should they lose. Such a party, if a»successful, could be assessed his oppo- nent’s fee only when it is shown that his suit was clearly frivolous, vexatious, or brought for harassment purposes. S.Rep. No. 1011, 94th Cong., 2nd Sess. 4 (1976) (citations omitted), reprinted in 1976 U.S. Code Cong. & Admin. News at 5912. DeNardo, 775 P.2d at 518 (internal quotation marks omitted). The Alaska court further noted that: 25 “(t]he United States Supreme Court has en- forced this intent, holding that a civil rights defendant may recover attorneys fees from the plaintiff only if the court finds ‘that the plaintiff’s action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith.’” Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 172 (1980) (quoting Christians- burg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657 (1978)). DeNardo, 775 P.2d at 518. DeNardo is consistent with virtually every other state appellate court where a reported decision can be found. See, e.g., Johnson v. City of Mobile, __ So. 3d __, 2015 WL 5725089, at *16-*17 (Ala. Sept. 30, 2015) (applying Christiansburg to fee request under Title VII by prevailing defendant); Est. of Bohn v. Scott, 915 P.2d 1239, 1249 (Ariz. App. 1st Div. 1996) (applying Christiansburg to fee request by prevailing defendant in ADA case); California Correctional Peace Officers Assn. v. Virga, 181 Cal. App. 4th 30, 38 n.7 (Cal. App. ist Dist. 2010) (dicta stating that Christiansburg applies to fee request by prevailing defendants under § 1988); State v. Golden’s Concrete Co., 962 P.2d 919, 926, 927 (Colo. 1998) (holding that Hughes applied to fee request by prevailing defendant under § 1988); Singhaviroj v. Bd. of Educ. of Town of Fairfield, 17 A.3d 1013, 1022-1025 (Conn. 2011) (applying Christiansburg and Hughes to fee request under § 1988 by prevailing defendants); Alley v. 26 Taylor, 2001 Del. Super. LEXIS 119 (Del. Super. Ct. Mar. 30, 2001) (same); Moran v. City of Lakeland, 694 So. 2d 886, 887 (Fla. 2d Dist. App. 1997) (in analyzing prevailing defendant’s fee request under § 1988, citing Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983), which cited Christiansburg); LaBarre uv. Payne, 329 S.E.2d 533, 535, 536 (Ga. App. 1985) (applying Hughes to fee request under § 1988 by prevailing defendant); Peraica v. Riverside-Brookfield High Sch. Dist. No. 208, 999 N.E.2d 399, 409 (Il. App. 1st Dist. 2013) (same); Davidson v. Boone Cty., 745 N.E.2d 895, 898 n.4, 899 n.6 (Ind. Ct. App. 2001) (apparently using Christiansburg standard to fee request under § 1988 by prevailing defendant); Chenevert v. Hilton, 978 So. 2d 1078, 1086 (La. App. 3d Cir. 2008) (applying Christiansburg to fee request under § 1988 by prevailing defendants); State v. Maine State Troopers Ass’n, 491 A.2d 538, 544 (Me. 1985) (in analyzing prevailing defendant’s fee request under § 1988, citing Hensley v. Eckerhart, 461 US. 424, 429 n.2 (1983), which cited Christiansburg); Simonian v. Town of Hull, 1993 Mass. Super. LEXIS 17 (Mass. Super. Ct. 1993) (applying Hughes to fee request under § i988 by prevailing defendant); Var- ney uv. O’Brien, 383 N.W.2d 213, 216, 217 (Mich. App. 1985) (in analyzing prevailing defendants’ fee request under § 1988, citing Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983), which cited Christiansburg), remanded on other grounds sub nom. Varney v. Genesee County Sheriff, 393 N.W.2d 1 (Mich. 1986); Revering v. Ackerson, 1995 WL 130618, at *2 (Minn. App. 1995) (applying Hughes and Christiansburg to 27 fee request under § 1988 by prevailing defendants); Bankston v. Pass Rd. Tire Ctr., Inc., 611 So. 2d 998, 1010 (Miss. 1992) (applying Christiansburg to fee request under §1988 by prevailing defendants); Shepherd v. Carbon County Bd. of Comm’rs, 46 P.3d 634, 638 (Mont. 2002) (applying Hughes to fee request by defendant who prevailed on § 1983 claim); Cuzze v. Univ. & Cmty. Coll. Sys., 172 P.3d 131, 136 & n.17 (Nev. 2007) (applying Hughes in reviewing request under § 1988 by prevailing defendants); Studio 45 Discotheque, Inc. v. City of Union, 2008 WL 583795, at *7-*8 (N.J. Super. Ct. App. Div. Mar. 5, 2008) (same); Shields v. Carbone, 952 N.Y.S.2d 649, 651 (N.Y. App. Div. 2012) (applying Christiansburg to fee request under §1988 by prevailing defendants); Rubio v. Carlsbad Mun. Sch. Dist., 744 P.2d 919, 923, 924 (N.M. App. 1987) (applying Christiansburg to fee request under § 1988 by prevailing defendants); Miller v. Henderson, 322 S.E.2d 594, 598 (N.C. Ct. App. 1984) (same); Lucas v. Riverside Park Condo. Unit Owners Ass’n, 776 N.W.2d 801, 813 (N.D. 2009) (applying Christiansburg standard to fee request under federal Fair Housing Act’s fee-shifting provi- sion); Shuba v. Austintown Bd. of Educ., 1985 WL 10371, at *20 (Ohio Ct. App. 1985) (applying Chris- tiansburg to fee request under § 1988, when both parties agreed to its applicability); Oklahoma Person- nel Serv. v. Alternate Staffing, Inc., 817 P.2d 1265, 1267 (Okla. 1991) (applying Christiansburg to fee request by prevailing defendant on Title VII claim); Park v. Dept. of Corrections, 307 P.3d 503, 508-510 & n.3 (Or. Ct. App. 2013) (applying Christiansburg to 28 fee request by prevailing defendant on Title VII claim, while noting, “We apply federal substantive law to federal claims brought in state court.”); Mc- Carthy v. Oregon Freeze Dry, Inc., 327 Ore. 185, 189, 190 n.3, 957 P.2d 1200 (Ore. 1998); Bitgood v. Allstate Ins. Co., 481 A.2d 1001, 1008 (R.I. 1984) (dicta stating Christiansburg governed fee request by prevailing defendant on § 1983 claim); City of Waco v. Hester, 805 S.W.2d 807, 817 (Tex. Ct. App. 1990) (applying Christiansburg to fee request under § 1988 by pre- vailing defendant); Gardner v. Bd. of County Comm’rs of Wasatch County, 178 P.3d 893, 906 (Utah 2008) (same); Washington State Republican Party v. Wash- ington State Pub. Disclosure Comman., 4 P.3d 808, 832 (Wash. 2000) (same); Dowd v. City of New Richmond, 405 N.W.2d 66, 78 (Wis. 1987) (same).” B. The Idaho Supreme Court’s Decision Conflicts with Decisions of Other State Supreme Courts That Recognize the Supremacy of this Court’s Decisions Interpreting Federal Statutes. The fundamental concept that state courts are bound by United State Supreme Court decisions construing federal law is plainly followed in virtually all states. The Idaho Supreme Court’s statement that it is not bound to follow this Court’s interpretation of * Petitioners’ research has not identified a single state court that refused to follow and apply the federal standard for an award of attorney fees under § 1988. 29 a federal statute conflicts with the vast majority of states who hold otherwise. See, e.g., Haywood uv. Alexander, 121 So. 3d 972, 981 (Ala. 2013); Gates v. Discovery Commce’ns, Inc., 34 Cal. 4th 679, 692, 101 P.3d 552, 560 (Cal. 2004); M.S. v. People, 2013 CO 35, 303 P.3d 102, 106 (Colo. 2013); Grp. Dekko Servs. LLC v. Miller, 717 N.E.2d 967, 969 (Ind. Ct. App. 1999); Littlefield v. State, 480 A.2d 731, 737 (Me. 1984); Riley v. Gibson, 338 S.W.3d 230, 235 (Ky. 2011); Commonwealth v. Pon, 469 Mass. 296, 308, 14 N.E.3d 182, 194 (Mass. 2014); Afzali v. State, 326 P.3d 1, 3 (Nev. 2014); State v. Coleman, 214 A.2d 393, 402 (N.J. 1965); Flanagan v. Prudential-Bache Sec., Inc., 495 N.E.2d 345, 348 (N.Y. 1986); Shaw v. PACC Health Plan, Inc., 908 P.2d 308, 314 n.8 (Or. 1995); Barstow v. State, 742 S.W.2d 495, 501 n.2 (Tex. App. 1987); People v. Gillam, 479 Mich. 253, 261, 734 N.W.2d 585, 590 (Mich. 2007); In re Fifth Third Bank, Nat. Ass’n, 216 N.C. App. 482, 488, 716 S.E.2d 850, 855 (N.C. 2011); Commonwealth v. Tedford, 598 Pa. 639, 664, 960 A.2d 1, 15 (Pa. 2008); Jaynes v. Commonwealth, 276 Va. 443, 458, 666 S.E.2d 303, 311 (Va. 2008); Youngbluth v. Youngbluth, 2010 VT 40, 4 16, 188 Vt. 53, 65, 6 A.3d 677, 684, 685 (Vt. 2010); State v. Rad- cliffe, 164 Wash. 2d 900, 906, 194 P.3d 250, 253 (Wash. 2008); State v. Mechte!. 499 N.W.2d 662, 666 (Wis. 1993). 30 Ill. The Question Presented Has Surpassing Importance for the Uniform Enforcement of Federal Rights in State Courts. In private actions to enforce federal rights, “the circumstances under which attorneys’ fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine.” Alyeska Pipeline Serv. Co., Inc. v. Wilder- ness Society, et al., 421 U.S. 240, 262 (1975). This Court, in turn, has often granted certiorari to ensure that the federal statutes authorizing such fees are applied uniformly and consistently with Congress’s intent.” The decision below threatens this Court’s ability to fulfill that function. The threat stems from the Idaho court’s view that a decision of this Court interpreting a federal statute cannot bind a state court if it imposes a limitation on the state court’s discretion that is not in the text of the statute. On this view, for example, a state court could award fees against a § 1983 plaintiff under circumstances that would not justify a fee award in federal court. Indeed, that is what happened here, as discussed in Part IV.B, infra. Likewise, a state court could be less generous than federal courts to plaintiffs seeking fees under the discretionary fee- shifting provisions of Title VII and other statutes * See, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014); Sebelius v. Cloer, 133 S. Ct. 1886 (2013); Lefemine v. Wiedman, 133 S. Ct. 9 (2012); Fox v. Vice, 563 U.S. 826 (2011); Astrue v. Ratliff, 560 U.S. 586 (2010). 31 protecting federal rights.” State courts could thereby effectively shut their doors to all but unwitting plain- tiffs asserting federal rights. The decision below poses risks to defendants, as well as plaintiffs, in state-court actions to enforce federal rights. That is because the decision below allows state courts to be more, as well as less, gener- ous to plaintiffs than the federal courts would be in awarding fees under § 1988 and similar federal fee- shifting statutes. For example, this Court has held that only in “rare and exceptional circumstances” can a court consider superior attorney performance when awarding a plaintiff fees under § 1988. Perdue uv. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010). But since that “limitation” is “not contained in” the text of § 1988 (App. 55), the decision below would allow a state court to ignore it by routinely enhancing fee awards to plaintiffs under § 1988 for their attorneys’ superior performance. In short, the decision below has great importance because it deters plaintiffs from enforcing federal rights in state courts. Perhaps its chief importance lies in its threat to this Court’s ability to ensure that federal fee-shifting statutes are applied correctly and * See, eg., 20 U.S.C. § 1415(iX3XB) (discretionary fee- shifting provision in Individuals with Disabilities Education Act); 29 U.S.C. § 794a(b) (similar provision in Rehabilitation Act); 42 U.S.C. § 3613(cX2) (similar provision in Fair Housing Amendments Act of 1988); 42 U.S.C. § 12205 (similar provision in Americans with Disabilities Act). 32 uniformly in the state courts as well as the federal courts. That ability has surpassing importance given the essential role that state courts play in enforcing federal rights. Burt v. Titlow, 134 S. Ct. 10, 15 (2013). IV. This Case Is An Appropriate Vehicle for Review of the Question Presented. This is an appropriate case, and this is an appro- priate time, for the Court to review the question presented. The question presented was properly presented and passed upon below. The Idaho Su- preme Court’s erroneous ruling on that question was outcome-determinative. Finally, although the Idaho Supreme Court’s error is obvious, its very obviousness begs correction, coming, as it does, in an action to enforce federal rights, and at a time of some disturb- ing instances of state-level defiance of federal-law supremacy. A. The Question Presented Was Pressed and Passed Upon Below. In seeking fees against petitioner on her § 1983 claim, respondents acknowledged that they had to satisfy the standard this Court established in Chris- tiansburg and Hughes. (App. 136). The Idaho Su- preme Court sua sponte determined that it was not bound by that standard. (App. 55). The court thereby injected into this case the question presented in this petition. Petitioner had no opportunity to address that question before its petition for rehearing. Under 33 those circumstances, petitioner timely raised the federal question in the courts below. See, e.g., Stop the Beach Renourishment, Inc. v. Fla. Dept. of Env. Protection, 560 U.S. 702, 712 n.4 (2010). Petitioner could not have foreseen that the Idaho Supreme Court would deny the binding effect of Christiansburg and Hughes. Indeed, in two earlier cases, the Idaho Supreme Court applied the federal standard in denying attorney’s fees to a prevailing defendant under 42 U.S.C. § 1988. Nation v. State, Dept. of Correction, 158 P.3d 953, 969 (Idaho 2007); Karr v. Bermeosolo, 129 P.3d 88, 93 (Idaho 2005)." In no prior decision had the Idaho Supreme Court said or implied that the Christiansburg/Hughes standard was not binding on it. Cf. Herndon v. Georgia, 295 U.S. 441, 442-446 (1935). It is therefore no surprise that not even respondents questioned the applicabil- ity of the Christiansburg/Hughes standard. Because petitioner timely sought rehearing of the Idaho Supreme Court’s surprising decision on the question presented, that question is properly present- ed to this Court. See Stephen M. Shapiro, et al., Supreme Curt Practice 195 (10th ed. 2013).” " Petitioner cited and discussed these two prior Idaho Su- preme Court cases in her rehearing petition. (App. 143, 144). * Review by this Court is not barred by lack of finality. The Idaho Supreme Court entered a separate order setting the amount of attorney's fees payable by petitioner under § 1988 shortly after issuing its opinion affirming the dismissal of her (Continued on following page) 34 B. The Idaho Supreme Court’s Ruling on the Question Presented Was Outcome- Determinative. The Idaho Supreme Court’s decision on the question presented affected the outcome. The Idaho court would not have awarded fees against petitioner under § 1988 if it had analyzed the respondents’ request for fees under the Christiansburg/Hughes standard. Indeed, the Idaho court’s own opinion proves the point. The court obviously believed that the standard mattered. Otherwise, why would it go out of its way — without benefit of briefing or argu- ment — expressly to deny the applicability of that standard? Moreover, while petitioner does not seek further review of the Idaho court’s conclusion that her exces- sive-force claim was barred by qualified immunity, petitioner must highlight weaknesses in the court’s qualified-immunity analysis, to show that no reason- able court could have found petitioner’s excessive- force claim “meritless in the Christiansburg sense.” Hughes, 449 U.S. at 15. The Idaho Supreme Court’s qualified-immunity analysis rested on three Ninth Circuit cases involving excessive-force claims arising from police dog attacks. (App. 12-34). The Idaho court thought these cases “clear[ly]” established a defense of qualified immunity claims and finding her eligible for those fees. (App. 131, 132); cf. Radio Station WOW v. Johnson, 326 U.S. 120, 127 (1945). 35 in this case, even if “there was some significant factual difference” between this case and Watkins v. City of Oakland, 145 F.3d 1087 (9th Cir. 1998), the Ninth Circuit case that was “most similar” to this case. (App. 34). The Idaho court also believed that at the time of the dog attack on petitioner in 2010, “there [was] no clearly established controlling author- ity” holding “that the use of a police dog to bite and hold a suspect constitutes excessive force.” (App. 20). This analysis has several defects. First, the Idaho court assumed that the merits of an excessive-force claim under § 1983 depends on whether the existence of a qualified-immunity defense is clear in hindsight. But that assumption is dubious. It implies that under § 1988 a court can award fees even against a § 1983 plaintiff who proves a constitutional violation, if the violation was far from clear under established law. Such awards, however, would punish a plaintiff for asserting a meritorious (though novel) constitutional claim, and would thus “distort” the litigation of constitutional rights in a way that Congress could not have intended. Cf. Christiansburg, 434 U.S. at 419. Furthermore, the idaho court erred in relying on the supposed absence of precedent holding “that the use of a police dog to bite 1 hold a suspect consti- tutes excessive force.” (A; 20). For one thing, it is easy to imagine situations where the use of a police dog to bite and hold a suspect — a suspected jaywalk- er, for example — would violate clearly established law even without precedent so holding. Cf. United States v. Lanier, 520 U.S. 259, 271 (1997). In any event, the 36 Idaho court misunderstood the precedent. At the time of the dog attack in the present case, the Ninth Circuit had held that the use of a police dog to subdue a suspect can constitute constitutionally excessive force. See Smith v. City of Hemet, 394 F.3d 689, 700- 704 (9th Cir. 2005) (en banc), cert. denied, 545 U.S. 1128 (2005) (reversing summary judgment against plaintiff on his claim that use of police dog involved excessive force). If the Idaho Supreme Court had properly applied the Christiansburg/Hughes standard — and had properly applied it to petitioner’s claim, as distin- guished from respondents’ defense — the court could not reasonably have awarded fees against petitioner. That is so because of the evidence discussed in Jus- tice Jones’ concurrence. (App. 57-63). That evidence came from petitioner’s expert, who had extensive education and experience in law enforcement, includ- ing as a canine instructor and supervisor. As Justice Jones explained, the expert’s evidence created triable issues of whether the police had probable cause to believe petitioner was a burglar, and, even if so, whether their use of the police dog to bite and hold her was excessive under the circumstances. (App. 58, 59). In short, the question presented not only has broad importance but also was dispositive in this case. 37 C. The Question Presented Concerns the Supremacy of this Court’s Decisions in the Fundamentally Important and Timely Context of the Enforcement of Federal Civil Rights. At first blush, the Idaho Supreme Court’s error may seem so obvious as not to warrant further re- view. But its very obviousness warrants correction considering the context in which it occurs. First, the state court’s refusal to be bound by decisions of this Court occurs in the context of a § 1983 action to enforce federal civil rights. As this Court said of § 1983’s precursor, “[a] major factor motivating the expansion of federal jurisdiction through §§ 1 and 2 of the [Civil Rights Act of 1871] was the belief of the 1871 Congress that the state authorities had been unable or unwilling to protect the constitutional rights of individuals or to punish those who violated these rights.” Patsy v. Bd. of Regents of Florida, 457 U.S. 496, 505 (1982). The unable or unwilling state authorities included “local courts.” Id. (quoting legislative history). Under the Idaho Supreme Court’s decision, however, state courts would have discretion to treat § 1983 plaintiffs less hospitably than their counterparts in federal court, by awarding attorney's fees against them under circumstances that would not trigger an award in federal court. This inhospitable treatment of plain- tiffs asserting federal rights presents precisely the situation that Congress enacted § 1983’s precursor to mitigate. See Patsy, 457 U.S. at 503, 506. Because 38 this case involves state-court adherence to this Court’s decisions concerning the enforcement of federal rights, it is an auspicious case for review of the question presented. This is also an auspicious time for review. Re- cently there have been several disturbing instances of state-level resistance to this Court’s decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). They include a state supreme court justice’s declaration that state court judges are not bound by decisions of this Court that misinterpret the U.S. Constitution.” The incidents also include the continued refusal of many county officials to obey Obergefell.'* While public debate is healthy, the outright refusal by state and local officials to abide by this Court’s decisions interpreting federal law corrodes federal-law suprem- acy. * Charles J. Dean, Moore: Gay marriage ‘not in accordance with the Constitution’ (Mobile, AL), Press-Register, July 1, 2015, at Al0. ‘ Ballotpedia, Local government responses to Obergefell v. Hodges (Oct. 2, 2015): As of October 2, 2015, Ballotpedia found 99.90 percent of the U.S. population lived in a county where same- sex marriage licenses are available; 0.10 percent lived in counties where licenses were not being issued or their status was unknown. Alabama had the highest state population without access to same-sex licenses, with 5.78 percent of its residents living in counties known to be refusing to issue licenses at that time. 39 CONCLUSION The petition for a writ of certiorari should be granted. Petitioner suggests that summary disposi- tion may be appropriate. Respectfully submitted, JOHN A. BUSH Counsel of Record 199 N. Capitol Blvd., Suite 500 Boise, ID 83701 (208) 344-7700 jabush@comstockbush.com RICHARD H. SEAMON 1297 Highland Dr. Moscow, ID 83843 October 15, 2015 App. 1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 42053-2014 MELENE JAMES, ) Boise, April Plaintiff-Appellant, =) 7015 Term = ) 2015 Opinion No. 49 CITY OF BOISE, a ) Filed: May 21, 2015 political subdivision of ) Stephen W. Kenyon, the State of Idaho; ) Clerk STEVEN BONAS, ) STEVEN BUTLER, ) and TIM KUKLA, ) Defendants-Respondents. ‘ Appeal from the District Court of the Fourth Ju- dicial District of the State of Idaho, in and for Ada County. Hon. Steven J. Hippler, District Judge. The judgment of the district court is affirmed. John A. Bush, Comstock & Bush, Boise, argued for appellant. Kelly K. Fleming, Assistant City Attorney, Boise, argued for respondents. EISMANN, Justice. This is an appeal from a judgment dismissing the plaintiff’s claims seeking to recover damages App. 2 resulting from being bitten by a police dog when she was mistaken for a burglar. We affirm the judgment of the district court. I. Factual Background. On Sunday, December 26, 2010, at about 5:22 p.m., a citizen made a 911 telephone call to report a breaking and entering at a dental office in Boise. The citizen told the operator that he was at his family’s house and heard glass breaking at the dental office across the street. When he went to investigate, he saw a woman about halfway through a window. He stated: “I talked to the lady, and she’s trying to get her keys out of the building. She looks like she’s, uh, under the influence of either drugs or major alcohol or something.” When asked how the woman broke in, the citizen stated that he heard breaking glass, he was across the street, and she was halfway through the glass. He then said, “She’s really lethargic, and I think she’s probably under the influence of some alc- er, uh, some drugs.” Later in the conversation, he said: “I asked her if she’s okay, and she kinda looked at me kinda crazy, and she’s not like really anger [sic] or anything, but she’s like totally out of it. She’s saying she’s trying to get her keys out of there.” The operator asked if the woman was still in the building, and the citizen answered: “I believe so, yes. She’s kind of in the down basement part, and if she was to come back out, I would be able to see her.” At about App. 3 5:25 p.m., Boise police officers were dispatched to the location of the dental office. The first to arrive was Officer Butler, who ar- rived at the scene at about 5:30 p.m. The building was a single story office building with a basement. The basement had windows to the outside and long window wells, each of which served multiple base- ment windows. There were wrought iron railings to keep people from falling into the window wells. Officer Butler met with the citizen, who was standing on the north side of the building. He re- ported that he had seen a woman break the window and enter the building and that he believed she was still in the downstairs part of the building. The officer walked to the northeast corner of the building to a point where he could see that a north-facing base- ment window had been broken out. He then relayed that information to the other responding officers. As Officer Butler was looking for suspects, he saw a woman through an east-facing basement win- dow at the northeast corner of the building. She was standing with her right side toward the window, and she had a large can of a malt liquor beverage in her left hand and what appeared to be a knife with a 4-5 inch blade in her right hand. She appeared to be rum- maging through things on a workbench or table.’ He ‘ In his report, Officer Butler wrote that the woman was “holding a Steele Reserve Malt liquor can in her left hand and manipulating several sharp dental instruments including a (Continued on following page) App. 4 observed her briefly, and she then walked out of view. The entire building was dark except the room in which he had seen her standing. Officer Barber and Sergeant Kukla arrived a few minutes after Officer Butler. Officer Butler told them what he had seen, that the suspect was still in the building, and that she was armed with some kind of an edged weapon. After additional officers arrived, they established a perimeter around the building. Officer Barber telephoned one of the dentists who owned the building. The dentist came to the scene, and Officer Barber heard him state that no one should be in the building, especially no one who entered by breaking a window. The cleaning lady also came to the scene, and she told Officer Barber that a woman worked in the building. When she began to describe the woman, the dentist reiterated that knife in her right hand.” The Plaintiff testified that she did not have knives that she used or sharp instruments that look like knives. The citizen who called 911 testified in his deposition that he walked over to the window with Officer Butler when he ar- rived and he stood by Officer Butler at the window ten or fifteen seconds. During that time, the citizen stated that the woman was simply standing there drinking from a 24-ounce can of beer, that there was other beer on the countertop, and that he did not see anything else in her hands. The citizen said that he then walked away from the window because other officers were ar- riving and one had come up to Officer Butler. The citizen stated that he stood in the parking lot for about two minutes and then walked back to his grandfather’s house. App. 5 anyone who had to break into the building was not supposed to be there, so the conversation ended. At about 5:40 p.m., Sergeant Kukla requested a patrol canine. Officer Bonas, a police officer who was a canine handler, was told of that request when he came on duty at 6:00 p.m. He was informed that there was a request for a patrol canine for a burglary in progress at a dental office. He arrived at the dental office at about 6:10 p.m. and spoke with Officers Barber and Butler and Sergeant Kukla. Lieutenant Schoenborn was also there. Officer Bonas was in- formed that a witness had seen a woman force entry into the dental office by shattering a downstairs window. Officer Butler stated that he had seen the woman through a window and that she was armed with a knife. Sergeant Kukla and Officer Barber stated that the owner of the business was there and informed them that no one should be inside the building. Officer Bonas went to the northeast corner of the building and saw the broken window. He also observed that the entire upstairs and the majority of the downstairs were dark. He then decided that the use of a police dog was reasonable and necessary and the safest way to search for the suspect in the build- ing. Officer Bonas made the initial decision to use a police dog to find the suspect or suspects in the build- ing. The factors he considered were: that the crime involved was burglary, a felony; burglaries at other local dental offices had occurred that month; one suspect had been seen armed with a knife; dental App. 6 offices contain nontraditional weapons; the suspect(s) would have the tactical advantage of concealment and could be lying in wait in the dark; Officer Butler had used the public address system in a police car to announce to the suspect inside the building that they were police officers, that if the suspect did not sur- render they would use a police dog, and that they may be bitten;’ and that using a police dog would be safer than having officers search the building, because the officers would have their guns drawn, increasing the danger to all parties involved. Lieu- tenant Schoenborn, as watch commander, discussed * Officer Bonas testified that Officer Butler used the public address system in a patrol car to make the announcement before the entry team walked up to the front door of the building. Officer Butler testified that he made the announcement from his patrol car and that he thought he did so at least ten minutes before the dog entered the building. Officer Barber testified that he moved his patrol car from where he had initially parked it so that the public address system in the car could be used to make an announcement, but he did not specifically recall whether the announcement was made. Officer Harr testified that she thought Officer Butler made an announcement using the public address system of his patrol car prior to entry into the building. The citizen who called 911 testified that he did not hear any an- nouncements from his grandfather’s house, which was apparently across the street, but his grandfather had installed very expen- sive windows to decrease the sound because he lived on a very busy street. He testified that he could hear sirens inside his grandfather’s house, but there was no evidence that the decibel rating of the patrol car’s public address system was comparable to the decibel rating of a siren, which is required to be “a decibel rating of at least one hundred (100) at a distance of ten (10) feet.” I.C. § 49-623(3). App. 7 the use of the dog with Sergeant Kukla, and then authorized Officer Bonas to deploy the dog. Officer Bonas then took the dog out of his car and proceeded to the front door of the building, accompa- nied by Sergeant Kukla and Officers Barber, Rapp, Butler, and Harr. Officer Barber unlocked the door using a key that had been obtained from either the dentist or the cleaning lady. Officer Bonas announced in a loud voice through the open door: “Suspect in the building. Boise Police canine calling out. Surrender. If you do not surrender — [barking]. Heel. If you do not surrender a police dog will be sent. When he finds you, he will bite you. This is your final warning (barking].” There was no response from inside the building, so the officers entered and began searching the ground floor. After about two minutes, they stopped near the top of the stairs going to the basement. Officer Bonas then made a second announcement, stating in a loud voice: “Attention in the building. Boise Police canine calling out. Surrender. If you do not surrender, a police dog will be sent, and when he finds you he will bite you. This is your final warning.” There was no response. They then continued searching the ground floor part of the building, which took about six minutes. They again stopped at the top of the stairs going to * Officer Bonas had an audio recording device on his person. App. 8 the basement. Officer Bonas made a third announce- ment, stating in a loud voice: “Suspect downstairs. Boise Police canine calling out. Surrender. If you do not surrender. a police dog will be sent. When he finds you, he wll bite you. This is your final warn- ing.” There was no response. Officer Bonas then decided to send the police dog down the stairs into the basement. He could tell that there was a light on downstairs and that the sides of the stairs were walled, not open, so there was a blind corner at the bottom of the stairs. He released the dog from his leash, and the dog went down the stairs. The officers remained at the top of the stairs. After a while, the dog began barking, indicating that he smelled the odor of a human. Because the human odor could be carried by air movement up a wall, across the ceiling, and down on the other side of a room, locating the odor would not mean that the person was located. Officer Bonas then gave the dog a command to bite, which would cause the dog to use his eyes and ears to find a person. After a few sec- onds, Officer Bonas heard a female screaming from the basement. He headed down the stairs with the other officers following him. At the bottom of the stairs he turned to the left and saw a bathroom door that was open about seven or eight inches. The screams were coming from the bathroom, and he could see a human torso and the police dog inside the bathroom. The bathroom door then closed. Officer Rapp, who had a shield that he could use for protection, pushed the door open. The App. 9 interior of the bathroom was dark without any light on, but Officer Bonas could see that the police dog was biting the woman’s right arm. She was lying on the floor. He yelled at her to show her hands, but she did not comply. He then commanded the dog to re- lease and lie down, and he did. Once the dog released, Officer Bonas left the bathroom and moved with the dog to a hallway where he could cover the other officers. Officer Harr, a female officer, was behind Officer Bonas when the bathroom door was opened. She saw a female lying on the floor. Her pants were pulled down past her knees, and she was wearing a T-shirt. Officer Harr helped pull the woman’s pants up. She described the woman as being “completely out of it. Intoxicated.” She stated that the woman “was com- pletely lethargic, just slumped over, like completely out of it.” After the woman was removed from the bathroom, Officer Harr, Officer Bonas, and other of- ficers continued searching the remainder of the base- ment, but found no other suspects. The woman was taken first to paramedics who were posted nearby and then to the hospital. Testing at the hospital re- vealed that she had a blood alcohol content of 0.27. The woman was later identified as Melene James, the Plaintiff. The basement of the building had been leased to a man who operated a dental laboratory making crown bridges. Beginning on January 1, 2010, the Plaintiff began using a small corner of the lab pursu- ant to an oral agreement with the man that she App. 10 would help him as needed in exchange for him per- mitting her to use the laboratory to make orthodontic appliances in her own business. The Plaintiff lived in an apartment located about one-half block from the dental building. At about 4:00 p.m. on December 26, 2010, a neighbor had called her, told her that a tooth had fallen out of his denture and that he had an important meeting the next day, and asked if she could repair the denture that day. She agreed to do so. He gave her the denture, and she walked to the dental building to make the repairs. There was a cement stairway outside the building providing ac- cess to the basement. She had a key to the door, and she walked down those stairs, unlocked the door, and entered the basement. It took her about 20 to 30 minutes to make the repairs, but she then had to let the acrylic cure for about 30 minutes. While it was curing, she walked out the basement door to have a cigarette. Once she was ready to return to her work, she realized that the door had locked behind her and her keys and cell phone were inside the building. There was a basement window that was sometimes left unlocked, so she walked up the stairs to where that window was and climbed over the wrought-iron railing and down into the window well. As she was trying to open the window, she accidently broke it. She had equipment running that could be a fire haz- ard, and so she decided to crawl through the broken window. While she was doing so, the citizen ap- proached and asked if she needed any help. Once inside the building, she did not telephone the man who was permitting her to use the basement because App. 11 she was afraid he would become upset and not allow her to use the laboratory any more. She opened the refrigerator to get some water and saw the can of malt liquor. She decided to drink it in order to calm down before calling him. She also did not attempt to contact either of the dentists who owned the build- ing.‘ She began doing the work to finish repairing the dentures, and then went to the bathroom. She closed the door, but may not have latched it. That is the last thing she remembers. She did not hear the officers, the announcements to surrender or she would be bitten by a dog, or the dog barking in the basement just before it bit her. On October 4, 2012, the Plaintiff filed this action against Officers Bonas and Butler, and Sergeants Kukla and Likes (herein “the Police”) and City of Boise. Sergeant Likes had not been at the scene and had no involvement in what occurred, but he was the patrol supervisor for the four patrol dogs. The Plain- tiff alleged that the Defendants violated the Idaho Tort Claims Act by committing the torts of assault, battery, false arrest, wrongful imprisonment, and in- tentional infliction of emotional distress and by neg- ligently failing to train, supervise, and control the * The Plaintiff testified in her deposition that she did not know the dentists’ telephone numbers, but she did not testify that she made any attempt to locate their numbers. Officer Barber testified in his deposition that he telephoned the dentist who later arrived at the scene and that he obtained the dentist’s telephone number from the side of the building. App. 12 police dog, allowing him to repeatedly bite Plaintiff. She also alleged a claim under 42 U.S.C. § 1983, as- serting that the Defendants violated her rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States by entering and searching the laboratory where she worked, by seiz- ing her, and by using excessive force in arresting her. The Defendants moved for summary judgment, and, after the motion was briefed and argued, the dis- trict court issued a memorandum decision and order granting the motion. It held that the Defendants were entitled to qualified immunity with respect to the federal claims; that pursuant to Idaho Code section 6- 904 they were not liable under the Idaho Tort Claims Act for the alleged intentional torts; and that the Plaintiff had failed to present evidence showing a negligent failure to train, supervise, or control the police dog. The court entered a judgment dismissing all of the Plaintiff’s claims with prejudice. She filed a motion for reconsideration and later a notice of ap- peal. After briefing and argument on the motion, the court entered an order denying the motion for recon- sideration. Il. Did the District Court Err in Holding that the Police Were Entitled to Qualified Immunity with respect to the Federal Claims? The Plaintiff sued under 42 U.S.C. § 1983, which supplies a remedy for the deprivation under color of App. 13 state law of federally protected rights. By the time of the hearing on the motion for summary judgment, the Plaintiff stated that her federal claim was that the Police unconstitutionally used excessive force by using a police dog to seize her. This case was decided by the district court grant- ing the Defendants’ motion for summary judgment. In an appeal from a summary judgment, this Court’s standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment. Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). All disputed facts are to be construed liberally in favor of the non- moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party. Jd. at 47, 44 P.3d at 1102. Summary judgment is appropriate if the pleadings, depositions, 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. Id. If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review. Id. The district court granted summary judgment with respect to the claim under 42 U.S.C. § 1983 on the ground that there was no constitutional violation because, under the circumstances in this case, the use of a police dog to find and seize the Plaintiff was objectively reasonable. The court also held that even if there was a constitutional violation, the Police were App. 14 entitled to qualified immunity because using a police dog to find and seize the Plaintiff did not violate a constitutional right that was clearly established on the date of this incident. “Qualified immunity shields federal and state of- ficials from money damages unless a plaintiff pleads vacts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conauct.” Ashcroft v. al-Kidd, __ U.S. ; , 131 S.Ct. 2074, 2080 (2011). “[Cjourts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first.” Id. Addressing the second prong first is consistent with the general rule of avoiding constitutional questions when the case can be decided on other grounds. Pearson v. Callahan, 555 U.S. 223, 241 (2009). Therefore, we will address the second prong. In the district court, the Plaintiff asserted that “(t]he clearly established right at issue here is a citizen’s right ‘to be free from excessive use of force under the facts and circumstances presented in this case.’” She argued that “no force was necessary be- cause had the officers evaluated the totality of cir- cumstances it was highly likely that they would have discovered who she was and why she was there.” Re- lying upon our decision in Miller v. Idaho State Pa- trol, 150 Idaho 856, 252 P.3d 1274 (2011), the district court held that the Plaintiff defined the clearly estab- lished law at issue too generally. As we stated in Miller: App. 15 The first component of this analysis is defining the relevant legal rule at stake. The Court should not define the right too gener- ally, as doing so would essentially vitiate the qualified-immunity doctrine. Here, for ex- ample, it would not be helpful to simply ask whether police must not execute unrea- sonable searches or, as Appellants suggest, whether the police can obtain bodily fluid from a person reasonably suspected of driv- ing under the influence. Warrantless blood draws and voluntary urine samples are sig- nificantly less intrusive than warrantless forcible catheterizations. Instead, the ques- tion should reflect the factual specifics in this case. Id. at 865, 252 P.3d at 1283 (citation omitted; empha- sis added). The district court held that “the inquiry should be whether a reasonable police officer would have known as of December of 2010 that it was unlawful to utilize a police dog to search for and bite and seize a hidden and potentially armed suspect during a burglary in progress.” Citing three decisions from the Ninth Circuit Court of Appeals, the district court held that there was no clearly established law prohibiting the use of a police dog to find and seize a burglary suspect. The court first cited Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), in which, during the early afternoon on September 4, 1988, a suspect stopped for a traffic violation fled on foot into a scrapyard, where he hid. Id. at 1436. Upon discovering that there were three App. 16 outstanding warrants for the suspect’s arrest, the officer radioed for assistance. Jd. The police set up a perimeter around the scrapyard, and a helicopter and canine units were called to assist in the search. Jd. About one and one-half hours after the suspect had fled, a police dog was unleashed into the scrapyard to find him. Jd. at 1442. About thirty minutes later, the dog found and bit the suspect, but there was a factual dispute as to whether the suspect attempted to sur- render prior to being bitten. Jd. The court of appeals held that the defendants were entitled to qualified immunity with respect to the policy authorizing “the use against all concealed suspects of dogs trained to search for and apprehend persons by biting and seizing them.” Jd. at 1446. The court stated: When the incident that led to the filing of this lawsuit occurred [September 4, 1988], the use of police dogs to search for and ap- prehend fleeing or concealed suspects consti- tuted neither a new nor a unique policy. The practice was long-standing, widespread, and well-known. No decision of which we are aware intimated that a policy of using dogs to apprehend concealed suspects, even by bit- ing and seizing them, was unlawful. At the time of the incident in question, the only re- ported case which had considered the con- stitutionality of such a policy had upheld that practice. See Robinette v. Barnes, 854 F.2d 909 (6th Cir.1988) (holding that use of police dog trained to bite a suspect’s arm or other available limb to apprehend a burglary App. 17 suspect hiding in a darkened building was constitutional). Id. at 1447. The court next cited Watkins v. City of Oakland, 145 F.3d 1087 (9th Cir. 1998). In Watkins, on Novem- ber 20, 1993, officers responding to a silent alarm at a commercial building released a police dog to find and bite the burglary suspect after announcing twice that the suspect should give up or the police dog would be released and the dog would find and bite the suspect. Id. at 1090. The suspect later sued, and the court of appeals held that the defendants were entitled to qualified immunity regarding the use of police dogs to bite and hold suspects. Following our prior decision in Chew, we agree with appellants that Oakland’s “bite and hold” policy did not violate clearly estab- lished law concerning the use of excessive force at the time of the incident. . . . Although Chew was based on the law as it existed in September of 1988, there had been no change in the law that would have alerted [the ca- nine officer] that his use of a police dog to search and bite was unconstitutional. Id. at 1092. The third case cited by the court was Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003). In Miller, during the night of January 21, 2001, an officer used a police dog to find and bite a suspect who had fled at night from his parents’ house across their large rural App. 18 property into some dense, dark, wooded terrain. Jd. at 960-61. The suspect was wanted for the felony of fleeing from police by driving a car with a wanton or willful disregard of the lives of others. Jd. at 960. The court of appeals held that “use of a police dog to bite and hold Miller until deputies arrived on the scene less than a minute later was a reasonable seizure that did not violate Miller’s Fourth Amendment rights.... Notwithstanding the serious injuries to Miller, there was no use of excessive force under the circumstances.” Jd. at 968 (citation omitted). Based upon these opinions, the district court held that “there was no clearly established law proscribing the use of police dogs under circumstances presented to the officers here.” It therefore held that the Police were entitled to qualified immunity. On appeal, the Plaintiff argues that “(t]he district court was critica of [the Plaintiff] for failing to artic- ulate a narrowly and clearly defined constitutional right of which objectively reasonable police officers would be aware.” According to the Plaintiff, “That, of course, is a self-defeating proposition for any litigant, plaintiff or defendant, because it forces the litigant to guess what the court deems specifically narrow enough to fit whatever undefined parameter it will ultimately use.” Thus, she asserts that the clearly established right at issue should be that she “had the basic and fundamental right not to be attacked by a police dog simply because she was mistaken for a burglar by overzealous police officers.” This formula- tion of the issue is clearly wrong. It assumes that the App. 19 Police knew that the Plaintiff was “mistaken for a burglar.” The circumstances are not to be judged “with the 20/20 vision of hindsight.” Graham ov. Connor, 490 U.S. 386, 396 (1989). There is no consti- tutional right not to be mistaken for a criminal. “The Constitution does not guarantee that only the guilty will be arrested.” Baker v. McCollan, 443 U.S. 137, 145 (1979). “The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested.” Graham, 490 U.S. at 396. The issue in this case is the use of a police dog to find and subdue by biting a suspected burglar in a dark basement after the suspect failed to respond to police announcements stating to surrender or a police dog would be sent that would find and bite him or her. The clearly defined law has to focus upon the use of the police dog under the circumstances of this case. For example, in Watkins the Ninth Circuit Court of Appeals stated: Although the use of excessive force in ef- fecting an arrest is a clearly established vio- lation of the Fourth Amendment, Watkins’ legal right cannot be so general as to allow him to “convert the rule of qualified im- munity ... into a rule of virtually unqual- ified liability simply by alleging violation of extremely abstract rights.” 145 F.3d at 1092. App. 20 As shown above, in Chew the Ninth Circuit Court of Appeals stated, “No decision of which we are aware intimated that a policy of using dogs to apprehend concealed suspects, even by biting and seizing them, was unlawful.” 27 F.3d at 1447. In Watkins, the Ninth Circuit held, “Although Chew was based on the law as it existed in September of 1988, there had been no change in the law that would have alerted [the canine officer] that his use of a police dog to search and bite was unconstitutional.” 145 F.3d. at 1092. Finally, in Miller the Ninth Circuit held that “use of a police dog to bite and hold Miller until deputies arrived on the scene less than a minute later was a reasonable seizure that did not violate Miller’s Fourth Amend- ment rights.” 340 F.3d. at 968. The Plaintiff has not cited any authority to the contrary, and the decisions of the ninth circuit on this issue are the controlling authority unless the Supreme Court decides other- wise. It is not sufficient merely to say that the use of a police dog to bite and hold a suspect constitutes excessive force, because there is no clearly estab- lished controlling authority so holding. The Supreme Court has made it clear that the clearly established law at issue must take into ac- count the factual circumstances facing the officers. In Anderson v. Creighton, 483 U.S. 635 (1987), the de- fendant and other state and federal law enforcement officers conducted a warrantless search of the plain- tiffs’ home because they thought that a man who had committed a bank robbery earlier in the day was there. Id. at 637 at 528-29. The plaintiffs sued, and App. 21 the defendant moved to dismiss on the ground that the plaintiffs’ claim was barred by qualified immu- nity. Id. The federal district court dismissed the case on the ground that there was probable cause to believe the bank robber was there and that exigent circumstances justified the warrantless search. Id. On appeal, the court of appeals reversed, holding that there were issues of fact as to whether the search was supported by probable cause and exigent circum- stances and that the defendant was not entitled to qualified immunity because “the right of persons to be protected from warrantless searches of their home unless the searching officers have probable cause and there are exigent circumstances — was clearly estab- lished.” Id. at 637-38. The Supreme Court vacated the opinion of the court of appeals because it had misapplied the law with respect to identifying the applicable clearly established law for determining whether there was qualified immunity. The Court explained why the “clearly established law” could not be so general that it would eliminate the rule of qualified immunity. It stated: For example, the right to due process of law is quite clearly established by the Due Proc- ess Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or App. 22 statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relation- ship to the “objective legal reasonableness” that is the touchstone of Harlow [v. Fitzger- ald, 457 U.S. 800 (1982)]. Plaintiffs would be able to convert the rule of qualified immuni- ty that our cases plainly establish into a rule of virtually unqualified liability simply by al- leging violation of extremely abstract rights. Harlow would be transformed from a guar- antee of immunity into a rule of pleading. Id. at 639. The Court explained that “the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. In deciding whether an action violated clearly established law, the focus must be whether the offi- cials objectively reasonably believed that their action was lawful under the circumstances of the particular situation. The Court stated that the error made by the court of appeals was that it “specifically refused to consider the argument that it was not clearly established that the circumstances with which [the defendant] was confronted did not constitute probable cause and exigent circumstances.” Jd. at 640-41. The Court stated that the relevant question in the case was, for example, “the objective (albeit fact-specific) question whether a reasonable officer could have App. 23 believed [the defendant’s] warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.” Id. at 641 (emphasis added). Likewise, in Pearson v. Callahan, 555 U.S. 223 (2009), officers conducted a warrantless search of the plaintiff’s house after an undercover informant, whom the plaintiff had voluntarily admitted into the house, signaled them that he had just purchased methamphetamine from the plaintiff. Jd. at 227. The district court held that the officers were entitled to qualified immunity because they reasonably believed that they could lawfully enter pursuant to the “‘con- sent-once-removed’ doctrine, which permits a war- rantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view.” Jd. at 229. On appeal, the court of appeals reversed, holding that the clearly established law at issue was “‘the right to be free in one’s home from unreasonable searches and arrests’” and that “under the clearly established precedents of [the Supreme] Court and the Tenth Circuit, ‘warrant- less entries into a home are per se unreasonable unless they satisfy the established exceptions.’” Jd. at 230. The court of appeals then held that the officers could not reasonably have believed that their conduct was lawful because they knew they did not have a warrant, the plaintiff had not consented to their entry, and his consent to the informant’s entry could App. 24 not reasonably be interpreted to include the officers. Id. On appeal, the Supreme Court reversed, holding that the officers were entitled to qualified immunity because their conduct did not violate clearly estab- lished law. Id. at 243. The Court held that “[wJhen the entry at issue here occurred in 2002, the ‘consent- once-removed’ doctrine had gained acceptance in the lower courts,” which consisted of three federal courts of appeals and two state supreme courts. /d. at 244. It had been accepted by each of those courts, and the seventh circuit had approved application of the doc- trine in cases in which private citizens were acting as confidential informants. Jd. The Court held that the officers were entitled to rely upon those cases even if their own federal circuit had not yet ruled upon the “consent-once-removed” doctrine. Id. Whether the law is clearly established is a ques- tion of law to be resolved de novo on appeal. Miller v. Idaho State Patrol, 150 Idaho at 865, 252 P.3d at 1283. A plaintiff has the burden of establishing that the law was well established at the time of the viola- tion. Id. “(W]hether an official protected by qualified immunity may be held personally liable for an alleg- edly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly estab- lished’ at the time it was taken.” Anderson, 483 U.S. at 639 (citation omitted). App. 25 The decision as to whether the facts, viewed from the standpoint of an objectively reasonvble police officer, amount to probable cause is reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 696 (1996). In the instant case, the officers had probable cause to believe that there was a burglary in progress in the dental office. A woman was seen crawling through a broken basement window into the building just after sunset on a Sunday, when the office was closed. A citizen witness stated that the woman appeared to be under the influence of alcohol or drugs and claimed to be retrieving her keys. An owner of the building arrived later and stated that no one should be in the building, especially anybody who had to break a window to enter. During the approximate forty minutes while the police were at the building, there was no indica- tion that anyone attempted to contact the owner to report an accidental breakage of the window, and the woman inside the building did not respond to a police announcement using the public address system in a patrol car. The dental building had a ground floor and a basement. The interior of the ground level was dark, as was most of the basement. The woman had been seen in the lit portion of the basement very briefly, and then walked out of sight. Before com- mencing the search of the building, Officer Bonas announced in a loud voice at the open front door that they were the police, commanded the person inside to surrender, and warned that if the person did not sur- render they would send in a police dog that would App. 26 find and bite the person. There was no response. Af- ter searching the ground floor for about two minutes, Officer Bonas made another similar announcement in a loud voice. When doing so, he happened to be at the top of the stairs going down to the basement. Once the officers completed their search of the ground floor, they again stopped at the top the stairs. Officer Bonas made his third announcement in a loud voice, and there was no response from the suspected bur- glar. The stairwell down to the basement had walls on both sides. Although the landing at the bottom of the stairs was lit, Officer Bonas could not see whether there was anyone standing out of sight at the bottom of stairs. At that point, he decided to release the police dog to find the suspected burglar. The dog went down the stairs and soon started barking, indicating that he smelled human odor. There was no sound from the basement indicating that the person down there wanted to surrender. At that point, Officer Bonas gave the command for the dog to find and bite the suspect. The Plaintiff was not subjected to any force while the officers were searching the ground floor of the building. She was not seized until Officer Bonas gave the command for the dog to find and bite the suspect after the dog had smelled human odor while search- ing the basement. Therefore, the relevant issue is whether there was clearly established law that would have prohibited Officer Bonas from commanding the dog to find and bite the suspected burglar in the dark basement who had failed to respond to the calls to App. 27 surrender. The Plaintiff does not cite any authority so holding. As the Ninth Circuit Court of Appeals stated in Chew, in 1988 the use of police dogs to search for and apprehend fleeing or concealed suspects was a long-standing, widespread, and well-known practice. 27 F.3d at 1447. The court stated, “No decision of which we are aware intimated that a policy of using dogs to apprehend concealed suspects, even by biting and seizing them, was unlawful.” Jd. Thus, there was no clearly established law holding that the Police conduct in this case constituted the use of excessive force. The Plaintiff alleges that the officers violated department policy by not ascertaining whether there were any tenants in the building before entering it with the police dog and by failing to give an an- nouncement while in the basement rather than from the top of the stairs. In making this argument, she cites Brooks v. City of Seattle, 599 F.3d 1018 (2010). In Brooks, the police tased a pregnant woman driver three times (on her thigh, shoulder, and neck) within a one-minute period of time after she refused to sign a traffic citation for speeding in a school zone and resisted police attempts to remove her from her car. Id. at 1020-21. The district court denied dismissal on the ground of qualified immunity, and the officers appealed. Jd. at 1021. The three-judge panel of the court of appeals held that the officers had not used excessive force. In so holding, the panel stated as a consideration: “Here, there has been no departmental determination that the Officers could have used App. 28 alternative methods. Indeed, the Officers followed the SPD’s Use of Force Training Guideline, applying pain compliance techniques (of which drive-stun Taser use was one) to control an actively resisting suspect.” Jd. at 1029-30. The Brooks court’s consideration of whether the police followed department policy in their use of force is not relevant here for two reasons. First, that was a factor considered by the court in determining that “the Officers’ behavior did not amount to a constitu- tional violation.” Jd. at 1031. It was not a factor in determining whether there was clearly established law that their conduct violated a constitutional right. Indeed, the policies or guidelines adopted by the Boise Police Department do not give rise to a claim under 42 U.S.C. § 1983. “[T]he statute creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.” Baker v. McCollan, 443 U.S. 137, 146 (1979). Second, after the three-judge panel issued its opinion, the court of appeals heard the Brooks case en banc along with Mattos v. Agarano, another case involving the police use of a taser. In Brooks, the en banc panel came to a different conclusion than did the three-judge panel and held that “[a] reasonable fact-finder could conclude, taking the evidence in the light most favorable to Brooks, that the officers’ use of App. 29 force was ‘unreasonable and therefore constitutionally excessive.” Mattos v. Agarano, 661 F.3d 433, 446 (9th Cir. 2011). In reaching that decision, the en banc panel stated that it “must examine the totality of the circumstances and consider ‘“whatever specific fac- tors may be appropriate in a particular case, whether or not listed in Graham [v. Connor, 490 U.S. 386 (1989)].”’” Id. at 445. The appropriate factors that the en banc panel considered did not include any pol- icies or guidelines adopted by the police department. That panel obviously did not consider them relevant in determining whether or not the officers used ex- cessive force in violation of the Constitution. The Plaintiff also contends that the district court failed to properly consider the affidavit of the Plain- tiff’s law enforcement expert.’ The expert was critical * The Plaintiff’s expert assumed that the Police “learned that there was a tenant relationship where persons other than the building owner had access and the right to be in the build- ing.” Officers Butler, Barber and Bonas were asked during their depositions whether they knew the basement was a dental lab prior to entering the building, and they testified that they did not. Sergeant Kukla testified in his deposition that he did not remember being told that the person had been seen in a dental lab prior to the police dog entering the building. Lieutenant Schoenborn testified in his deposition that he knew there was a dental lab in the basement before the police dog went into the building, but he stated that he did not recal] how he received that information and was not advised that the person in the basement may have worked in the dental lab. There is nothing in the record indicating that the Police knew before entering the building that the basement had been leased to a tenant. The Plaintiff’s expert was also critical of not having the cleaning (Continued on following page) App. 30 of the conduct of the police in this case, but the ex- pert’s opinion is not clearly established law, even if that opinion had been given prior to the incident in this case. The clearly established law must be “con- trolling authority” in the jurisdiction or “a robust ‘consensus of cases of persuasive authority.’” Ashcroft, __ U.S. at __, 1381 S.Ct. at 2084. Although the Brooks decision did not address whether the officers violated any clearly established right when they tased Ms. Brooks, the Mattos deci- sion did address that issue and held that “although Brooks has alleged an excessive force claim, the law was not sufficiently clear at the time of the incident to render the alleged violation clearly established.” 661 F.3d at 448. Its analysis in arriving at that con- clusion is instructive. It stated, “We begin our inquiry into whether this constitutional violation was clearly established by looking at the most analogous case law that existed when the officers tased Brooks in No- vember 2004.” Id. at 446. The first case it considered was Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir.1992). In Russo, the police were called to help the family of Thomas Bubenhofer return him to a psychiatric institute. Mattos, 661 F.3d at 446. The call over the police radio lady give a description of the woman who worked in the build- ing, but there is no evidence of what description she would have given and whether her description would have indicated that the Plaintiff may have been that woman. App. 31 described Bubenhvfer as a walk-away from the psy- chiatric institute “‘who was “suicidal, homicidal, and a hazard to police.”’” Id. at 447. When the officers tried to get Bubenhofer out of his apartment, he threatened to kill anyone who entered his apartment and then opened the door and threatened the officers with two knives he was holding, one in each hand. Jd. An officer tased him several times, to no avail, and he charged the officers while still holding the knives. Jd. Ultimately, he was tased a final time while he lay at the bottom of the stairwell and posed no immediate threat to the officers. Jd. The Sixth Circuit held that the initial use of the taser did not violate any clearly established law and that the subsequent tasings did not constitute excessive force. Jd. The second case that the Mattos court considered was Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). In that case, Hinton was initially stopped by the police for disturbing the peace, a misdemeanor, but he then pushed an officer after declining the officer’s request to speak to him. Mattos, 661 F.3d at 447. When the officers informed Hinton that he was under arrest, he struggled by kicking his feet, flailing his arms, and biting the officers. Jd. The officers tased him, and the Tenth Circuit held that Hinton failed to demonstrate that the officers’ conduct amounted to a violation of the law. Jd. The third case that the Mattos court considered was Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004). In that case, a lone officer stopped a tractor-trailer truck at night because its tag light was not properly App. 32 illuminated. Mattos, 661 F.3d at 447-48. During the traffic stop, the driver acted in an agitated and con- frontational manner, paced back and forth, and yelled at the officer. Jd. at 448. After refusing the officer’s fifth request to produce certain documents, the officer tased him. Jd. The Eleventh Circuit held that the use of the taser to effectuate the arrest did not constitute excessive force. Jd. The Mattos court noted that the conduct of the persons tased in those three cases was significantly different from the conduct of Ms. Brooks. It was obvious that the circumstances in those cases were so dissimilar to those in Brooks that the decisions au- thorizing the use of a taser in those cases would not justify the use of a taser on Ms. Brooks. Unlike Bubenhofer in Russo, Ms. Brooks was not a paranoid schizophrenic, did not make suicidal and homicidal threats to the police, and did not overcome the effects of being tased multiple times in order to approach the officers with knives in her hands. Id. at 447. Unlike the plaintiff in Hinton, Ms. Brooks did not shove, kick, and bite the officers. Jd. Unlike the circum- stances in Draper, Ms. Brooks was immobile in her car during daylight and was outnumbered by the officers three to one. Id. at 448. Even though the circumstances [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0624%3A1. Public record. Not legal advice.