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No. 84-1350

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1984

WALTER W. COHEN, et al.,

Petitioners,

Vv.

NANCY BETSON, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DEBORAH HARRIS, ESQUIRE

Counsel for Respondents

COMMUNITY LEGAL SERVICES, INC.

LAW CENTER NORTH CENTRAL

3638 North Broad Street

Philadelphia, Pennsylvania

19140

(215) 227-2400

sient)

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I. COUNTER STATEMENT OF THE QUESTION PRESENTED

Whether the Court of Appeals erred in holding that

Eleventh Amendment does not bar prospective injunctiv

II. TABLE OF CONTENTS

ER STATEMENT OF THE QUESTION PRESENTED

CASE

III. TABLE OF CITATIONS

Edelman v. Jordan, 415 U.S. 651 (1974)

Pennhurst State School and Hospital

Vv. Halderman, 465 U.S,

S.Ct. 900 (1984)

. .

__» 104

Rogers v. Okin, 738 F.2d 1 (lst Cir.

1984) ..

Smith v.

. . .

Robinson

S.Ct. 3457 (1584)

Students of California School for the

Blind v. Honig, 736 F.3d 538

(9th Cir.

1984)

U.S. ’ 104

PAGE

4,5,6,7,8

IV. SUMMARY OF ARGUMENT

Review should be denied because the decision below

Joes not conflict with any decisions of this Court or of

The Court of Appeals below held that the Eleventh

Amendment does not bar prospective relief against state

officials who violate a federal statute by not complying

with the state plan submitted to and approved by the

federal government as required by the statute. This

dk sion is fully consistent with the Court's decision in

F t t State School and Hospital v. Halderman, 465 (

» 104 S.Ct. 90C 1984), which reaffirmed the power of

tt federal courts t vindicate federal rights N

a Sions of the Court or of any court of appeals sugges

that federal courts ere powerless to require state

Moreover, since petitioners are free to alter thei

co

.

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+y

a

state plan, any liability they suffer as a resu]

is J Z

prospective injunction affecting two individuals is

entirely of their own choosinc. Review by the Court is

therefore not warranted

V. REASONS FOR DENYING THE WRIT

THE DECISION BELOW DOES NOT CONFLICT

WITH ANY OTHER DECISION AND DOES

NOT RAISE ANY IMPORTANT QUESTION

JUSTIFYING REVIEW

Petitioners seek review of a prospective injunction

requiring Pennsylvania officials to pay benefits to two

individuals under the federal-state Aid to Families with

Dependent Children (AFDC) program.

The state officials disqualified respondents for

receiving personal injury awards, even though personal

injury awards are not disqualifying payments under che

state AFDC plan submitted to and approved by the federal

government. The Court of Appeals for the Third Circuit

held that respondents were entitled to relief because the

state officials’ denial of henefits, payable under their

own state plan, violated the Social Security Act, which

requires participating states to adhere to their state

plans and to pay benefits to all persons eligible under

those plans. (Pet. App. 44a-48a).

In mandating prospective relief, the Court of Appeals

emphatically and unanimously rejected petitioners’

contention that Pennhurst State School and Hospital v.

Halderman, 465 U.S. » 104 S.Ct. 900 (1984), renders

federal courts powerless to protect a federal right simply

because the content of the right is determined in part by

a state plan submitted to the federal government in

accordance with federal law. As the Court of Appeals

wrote, since the state officials transgressed “federal

law..., the Pennhurst case is inapplicable and injunctive

relief against the state officials is not precluded." (Pet.

App. 45a-48a) (emphasis in original).

The Third Circuit's decision, based as it is on

federal law, in no way conflicts with the Court's decision

in Pennhurst. Pennhurst specifically reaffirmed the power

of the federal courts to “vindicate federal rights and hold

state officials responsible to ‘the supreme authority of

the United States.'" Pennhurst, 465 U.S. at , 104 S.Ct.

at 910, 912 n. 17. It did not overrule the long line of

cases recognizing federal court jurisdiction to grant relief

against government officials for violations of federal

statutes. See, e.g., Bdelman v. Jordan, 415 U.S. 651, 653

n. 1 (1974). Indeed, Pennhurst was remanded in part for a

determination of whether the injunction in that case could

be sustained under a federal statute. Id. at , 104 S.Ct.

at 921. Petitioners themselves acknowledged in the Court of

Appeals that “the Pennhurst decision does not preclude

claims for injunctive relief against state officials based

on violations of federal law." (Pet. App. 44a).

Since Pennhurst, neither this Court nor any court

of appeals has held that the Eleventh Amendment bars

prospective relief against state officials who violate

federal statutes. On the contrary, the Court has

recognized the propriety of a prospective injunction

under the Education of the Handicapped Act, a federal-

state scheme for special education for handicapped

children similar to the federal-state AFDC program.

Smith v. Robinson, __—-U.S. __, 104 S.Ct. 3457, 3464

n.6 (1984).

Nor has any court held that the Eleventh Amendment

bars injunctive relief against state officials for

violations of federal laws which refer to or incorporate

state standards. See, e.g., Students of California School

for the Blind v. Honic, 736 F.2d $38 (9th Cir. 1984)

(Pennhurst does not bar order under federal handicapped

rights statute requiring state officials to perform same

seismic safety tests California education code mandates

for all schools); accord, Rogers v. Okin, 738 F.2d 1 (lst

Cir. 1984) (Pennhurst does not bar injunction protecting

@ue process rights in state-created liberty interest) .

Thus, the decision below does not conflict with any

@ecision of this Court or with any decision of any courts

of appeals. Review by this Court is therefore inappro-

priate.

Moreover, this case lacks the importance necessary

to justify review. In contrast with Pennhurst, any

liability the state suffers as a result of the prospective

order affecting two beneficiaries is entirely of the state

officials’ own choosing. Assuming, as petitioners argue,

that federal law permits participating states to disqualify

recipients of personal injury awards,* the state officials

can avoid future liability simply by changing their state

Plan. Review by this Court is inappropriate where the

petitioners complain of an order requiring them to follow

@ state plan that they have the power to alter at any time.

* The Court of Appeals below did not reach this issue.

(Pet. App. 34a).

VI. CONCLUSION

For these reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

ATE

Counsel for Respondents

COMMUNITY LEGAL SERVICES, INC.

LAW CENTER NORTH CENTRAL

3638 North Broad Street

Philadelphia, Pennsylvania 19140

(215) 227-2400

DATED: fala, At, L2e

No. 84-1350

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1984

WALTER W. COHEN, et al.,

Petitioners,

Vv.

NANCY BETSON, et al.,

Respondents.

AFFIDAVIT OF SERVICE

I, DEBORAH HARRIS, ESQUIRE, being duly sworn

according to law, hereby state that I am a member of the

bar of this Court and that on this date completed copies

of Respondents’ Motion to Proceed In Forma Pauperis and

Respondents' Brief in Opposition to Petition for Writ

of Certiorari were forwarded by first class mail, postage

prepaid, as follows:

10 copies to: Alexander L. Stevas, Clerk

Supreme Court of the United States

One First Street, N.E.

Washington, D. C. 20543

2 copies to: Allen C. Warshaw, Esquire

Counsel for Petitioners

Office of Attorney General

‘ Pifteenth Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

To my knowledge, the mailing took place on this date

within the permitted time.

patep: [lack TWA oll Pind VL

DEBORAH HARRIS

Sworn to and subscribed

wth

before me this AS day

of PhurexXH— 1985

a. iGINAL : FILED

Th a a

ALEXANDER L. STEVAS

CLERK

NO. 84-1357

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

vs.

JOHN HENRY MORGAN

ON PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

RESPONSE IN OPPOSITION TO PETITION

RECEIVED

J. Polk Cooley

MAR 24 1985 405 West Rockwood Street

P.O. Box 7

OFFICE OF THE CLERK Rockwood, Tennessee 37854

SUPREME COURT, U.S. 615 354-1432

Attorney for Respondent

John Henry Morgan

QUESTIONS PRESENTED

l. Wehther law enforcement officers who have probable

cause to believe that a suspect committed a felony must obtain a

warrant before inducing the suspect to leave his house so that

they may arrest him, when the officers effect the arrest without

entering the house.

2. Whether, assuming that officers violate the Fourth

Amendment when they summon a suspect from his house without a

warrant, a weapon that the suspect carries with him when he

leaves the house should be treated as a fruit of the improper

arrest,

3. Whether the Fourth Amendment exclusionary rule

should be modified so as not to bar the admission of evidence

seized in the reasonable belief that the warrantless arrest of a

felony suspect did not violate the Fourth Amendment.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . © © © © © © © © @

ST ATEMENT . . . . >. . . . . > > > 7. . . . >. > .

REASONS FOR DENYING THE PETITION. . .... ss

CONCLUS ION . . . 7 o . . . . + . . 7 . . . + . .

TABLE OF AUTHORITIES

Cases:

Gerstien vs Pugh, 423 U.S. 411 (1976) .....

McGeehan vs Wainwright, 526 F.2d 397 (5th Cir)

cert denied 425 U.S. 997 (1976) .......

Perey We Ghuie, 392 U.B. 2 ic ew cs te ee ee

United States vs Cisneros 448 F.2d 298, 303 n.6

(9th Cir. 1971) . >. . . . 7 . . . J . . - . J

United States vs Herring, 582 F.2d 535, 543 ..

United States vs Renfro, 620 F2d 574-75 ....

United States vs Santana, 427 U.S. 38 (1976). .

United States vs Smith, 515 F.2d 1031-21. ...

United States vs Watson, 423 U.S. 411i (1976). .

United States vs Williams, 604 F.2d 1102, 1123

(8th Cir. 1979) . . . > . . . 7 >. . . . . >. .

(ii)

vow wr wr TH

WO. 84-1357

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

JOHN HENRY MORGAN

RESPONSE IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

JURISDICTION

Jurisdiction is admitted.

STATEMENT

Respondent generally agrees with the STATEMENT of the

Petition except that, in paraphrasing, some of the "facts" tend

lito be distorted.

REASONS FOR DENYING THE PETITION

Question Number 1 does not fairly represent the factual

circumstances of the hearing upon which the Circuit Court of

Appeals based its decision. The unique facts of the warrantless

arrest in the subject case do not form the proper basis for a

Clarification of “arrest law" which Petitioner seeks herein.

Question Number 2 also assumes circumstances as a basis

for clarification which are unsupported by the facts present in

the subject case, and is subject to the flagrant unconstitutiona-

lity of the intrusion and arrest of Respondent. The facts of

this case fully support the finding of the Circuit Court of

Appeals that Respondent was “..placed under arrest, without the

issuance of a warrant, at the moment the police encircled the

residence." (App. l2a)

Question Number 3 relies upon factual circumstances

which would justify consideration of a reasonable belief" on the

part of the arresting officers that they were not violating the

Fourth Amendment, when to the contrary, the facts of the case

clearly show that the arresting officers acted in reckless disre-

gard of Respondent's constitutional rights and such was found by

the Circuit Court of Appeals.

Wherefore, Respondent contends that the Questions sought

to be considered by the Petitioner are not fairly represented by

the facts of this case, that this case would not present a proper

vehicle for a test of the principles of law sought to be

established by Petitioner, and that the Petition should be

denied.

In Question Number 1, Petitioner seeks to have the

warrantless arrest in this case tested on the basis that

Respondent was induced to leave his house so the officers could

arrest him, and assumes that the officers effected the arrest

without entering the house. This is not supported by the factual

circumstances of the subject case.

The Circuit Court of Appeals, in a close scrutiny of the

trial Court evidence found the following facte:

(1) "When Alcorn and his squad of nine officers,

including Sheriff Reynolds and his deputies,

arrived at the Morgan home, Chief Alcorn drove his

car, with his lights off, into the yard and parked

it to the rear and right of the Cadiilac. At the

same time, the other officers surrounded the Morgan

home. Alcorn them flooded the house with

spotlights and summoned Morgan from his mother's

home with the blaring call of a bullhorn.

Responding to the coercive activity outside of the

house, Morgan appeared at the front door holding a

pistol in his hand. (App. éa)

(2) "...the record provides ample proof that, ‘as a

practical matter, [Morgan] was under arrest,’

Florida v. Royer, 103 S.Ct. 1319, 1327, 75 L.Ed.2d

229, 140 (1983) (plurality opinion), as soon as the

police surrounded the Morgan home, and therefore,

the arrest violated Payton because no warrant had

been secured. The police show of force and

authority was such that a ‘reasonable person would

have believed he was not free to leave.' United

States v. Mendenhall, 446 U.S. 544, 554-55 (1980),

(opinion of Steart, J.):; United States v. Robinson,

650 F.2d 537, 538 (Sth Cir. 1981)." (App. lla and

l2a)

(3) “Nine police officers and several patrol cars

approached and surrounded the Morgan residence in

the dark. The officer in charge strategically

positioned his car in the driveway in front of the

Morgan home blocking any movement of his car. The

police then called for Morgan to come out of the

house. ‘These circumstances surely amount to a

show of official authority such that “a reasonable

person would have believed he was not free to

leave."' Florida v. Royer,----U.S. at ------ , 103

S.Ct. at 1326-1327 (plurality opinion), id. at 1330

(Brennan, J., concurring in result), id. at

1332-1333 (Blackmun, J., dissenting), quoting

United States v. Mendenhall, 446 U.S. at 554

(opinion of Stewart, J.). Viewed objectively

Morgan was placed under arrest, without the

issuance of a warrant, at the moment the police

encircled the Morgan residence." (App. 12a)

In view of the above factual circumstances, it is

suggested that the use of the term "induced" is not a fair

characterization of the manner in which Respondent was brought

jout of his house. Nor is it a fair statement that the officers

arrested Respondent without entering the house. Under these

facts, the authority of the officers had clearly entered the

house with the advent of their entering the premises, surrounding

the house, turning the floor lights into the front of the house

jand broadcasting the “bull horn" commands therein.

-4-

ee ——— — ——_-_ _ —

Thus, the authorities cited by Petitioner, viz:

United States v Watson, 423 U.S. 411 (1976)

Gerstien v Pugh, 420 U.S. 103 (1975)

inited States v Santana, 427 U.S. 38 (1976)

Terry v Ohio, 392 U.S. 1 (and related citations

under footnote 3)

United States v Renfro, 620 F2d 574-75

McGeehan v Wainwright, 526 F2d 397 (Sth Cir)

cert denied 425 U.S. 997 (1976)

United States v Herring, 582 F2d 535, 543

United States v Smith, 515 F2d 1031-32

would be inapplicable to the subject case.

Question Number 1 fails to include any consideration of

"exigent circumstancs,* yet for the officers to arrest Respondent

as the evidence describes, they must rely on exigent circumstan-

ces.

The U.S. District Court and Circuit Court of Appeals

both found that there was no exigency sufficient to justify the

warrantless entry of the home and arrest of (Respondent).

"As found by the district court, the evidence

‘shows that the occupants of the [Morgan] house

were peaceful until startled by Officer Alcorn's

car coming up their driveway in a clandestine

manner.‘ Moreover, Morgan's prior contact with

police officials had been friendly and cooperative.

There was no substantiated evidence that Morgan was

dangerous or that a grave offense or crime of

violence had occurred or was even threatened.

United States v. Killebrew, 560 F.2d at 734."

(App. 9a)

The burden is on the government to demonstrate exigency.

“Vale v. Louisiana, 399 U.S. 30, 34 (1970);

McDonald v. United States, 335 U.S. 451, 456

(1948); United States v. Killebrew, 560 F2d at

733." (App. 6a)

The District Court's factual finding on the existence of

exigent circumstances will not be disturbed unless clearly erro-

neous.

"United States v. Gargotto, 510 F2d 409, 411 (6th

Cir. 1974), cert denied, 420 U.S. 987, reh. denied,

423 U.S. 8864 (1975)" (App. 6a)

o§-

"The record here reveals no exigency sufficient to

justify the warrantless entry of the home and

arrest of Morgan. Wone of the traditional excep-

tions justifying abandonment of the warrant proce-

dure are present here." (App. 7a)

Question 2 would seem to turn on whether the arrest

occurred before or after Respondent had emerged from the house.

If the arrest occurred while Respondent was inside the house and

before he opened the door in response to the coercive action of

the officers, then the weapon held by Respondent and immediately

seized constituted fruit of the improper arrest according to well

settled law. United States v. Williams, 604 F.2d 1102, 1123

(8th Cir. 1979); United States v. Cisneros, 448 F.2d 298, 303 n.6

(9th Cir. 1971).

The Circuit Court of Appeals found evidence from the

District Court hearing, to fully support the position that the

“detention" or apprehension" of the Respondent, both constituting

facets of an arrest, occurred before Respondent opened the door

to his dwelling. (App. lla, i2a supra and authorities cited).

Question 3 of the Petition would call for the Court to

extend recent modifications to the Fourth Amendment exclusionary

rule even further so as to eliminate the need for the officers to

appear before a magistrate. Question 3 further assumes the

officers had (i) a reasonable belief that they could not obtain a

search warrant from any of the three nearby magistrates and (ii)

a reasonable belief that the warrantless arrest did not violate

the Fourth Amendment.

The plain facts available from the evidentiary record,

as found by the Court of Appeals, refutes the above assumptions.

"During the one-to two-hour period between Sheriff

Reynolds' first observation of Morgan at Potter

Palls and Morgan's subsequent arrest, no effort was

made by any law enforcement agency to obtain a

search or arrest warrant. When asked at the

suppression hearing why he did not obtain a warrant

from one of the judges available on the weekend,

Chief Alcorn stated: “Well, generally-we have

tried to, on several occasions, to contact the

judges on the weekend and either one of the judges

are hard to reach on the weekend." (App. 5a)

The absence of exigent circumstances as reflected by the

officer's testimony further reflects the unreasonableness of

their harsh manner of intrusion. (See App. 9a supra)

Under the circumstances of the subject case, the Court

of Appeals properly relied on Payton vs. New York, 445 0.S. 573

(1980) as well as the other authorities cited in its opinion.

CONCLUSION

The Petition for Writ of Certiorari should not be

granted,

Respectfully submitted,

Cou

efe