Petition for Writ of Certiorari — Applewhite v. United States Air Force

93-708

No. y 1333

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x - “

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te

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

CAROL J. APPLEWHITE,

Petitioner,

Vv.

UNITED STATES AIR FORCE,

RANDALL L. FAULKNER, LEONARD Ross,

AND WILLIAM E. MCBRIDE,

Respondents.

Petition for a Writ of Certiorari to the

Tenth Circuit Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

JOHN R. POLK

Counsel of Record

United New Mexico Bank Building

320 Gold, S.W., Suite 910

Albuquerque, NM 87102

(505) 247-1100

i

QUESTIONS PRESENTED

The questions presented for review are:

;. Whether Air Force OSI agents had

qualified immunity for their 1986 actions in detaining

and transporting a civilian onto a military reservation,

searching her and holding her on the reservation

while they contacted the civilian authorities who

declined to prosecute her?

2. What, if any, constitutional and legal

constraints limit the actions of military police who

pick up civilians in off-base drug "busts" of military

personnel?

(i)

PARTIES TO THE PROCEEDINGS

The parties to the proceeding are all identified

in the caption. There are no parent companies or non-

wholly owned subsidiaries involved in the proceedings

(ui)

_

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................. (i)

PARTIES TO THE PROCEEDINGS......... (ii)

TABLE OF AUTHORITIES ................ (v)

OPINIONS BELOW .............2%........ 2

I 5s bs wesc wdcccucccccececcee 2

CONSTITUTIONAL AND

STATUTORY PROVISIONS ........... 3

STATEMENT OF THE CASE ............... 4

REASONS FOR GRANTING THE WRIT ..... 12

I. ALTHOUGH THIS COURT HAS STATED

THAT UNLAWFUL ACTIVITIES BY

THE MILITARY WILL NOT GO

UNREMEDIED, IT HAS NOT

SPELLED OUT A SPECIFIC

JUDICIAL REMEDY. THE

JUDGMENT IN THE PRESENT CASE

EFFECTIVELY FORECLOSES ANY

JUDICIAL REMEDY IN THE TENTH

CIRCUIT.

II. THE TENTH CIRCUIT JUDGMENT

FLIES IN THE FACE OF

CONGRESSIONAL INTENT TO

PREVENT THE MILITARY FROM

PARTICIPATING IN SEARCH AND

SEIZURES AND ARREST OF

CIVILIANS.

Ill. IN REFUSING TO APPLY AN

EXCLUSIONARY RULE TO

MILITARY INTRUSIONS INTO

CIVILIAN LAW ENFORCEMENT,

SEVERAL CIRCUITS HAVE STATED

THAT THEY WILL RECONSIDER

THE ISSUE IF THERE WAS FUTURE

ABUSE. THE PRESENT CASE

REPRESENTS AN EGREGIOUS

ABUSE OF POWER BY THE

MILITARY AND THIS COURT

SHOULD RECONSIDER SPECIFIC

JUDICIAL REMEDIES.

CONCLIUUGION 2c tc ccsccsssnccesessuesive 29

APPENDICES 2... .cccnccccccccsscssccces la

(iv)

nee

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS

Fifth Amendment, Rights of Accused in Criminal

Proceedings, U.S. Const. Amend. V .......... 3, 14

Fourth Amendment, Security from Unreasonable

Searches, U.S. Const., Amend. IV......... 3, 14, 15

STATUTORY PROVISIONS

WUE. O08 63 oe 3, 18

oe ee, SIO oi ot tee 2

ee NR OE 6 i eee 4

Be UBS. § Oe. 630s pe eee 4

Federal Tort Claims Act, 28 U.S.C. §§ 2671 - 2680

Posse Comitatus Act, 18 U.S.C. § 1385 . 3, 5, 8, 12-14,

17, 21, 23-26,

28

Uniform Code of Military Justice, 10 U.S.C. §§ 801-

OOP oa eh ee eee 21, 22

(v)

ADMINISTRATIVE REGULATIONS

C9 CPR OGD .ccancacvusuctyeseses _. 19, 20

FEDERAL CASES

Bissonette v. Haig, 800 F.2d 812 (8th Cir. 1986) (en

banc), aff'd, for absence of quorum, 485 U.S. 264

(300 . viv tesse eee ss «ate pee 8, 14, 15

Bivens v. Six Unknown Federal Narcotics Agents, 403

17S BOG CIGTI) 2. ccc sccess _. 4, 5, 8, 9, 14-16, 27

Haynes v. Hawes, 921 F 2d 100 (7th Cir. 1990). 26-28

Laird v. Tatum, 408 US. 1, 15-16 (1972) .. 13, 15, 28

State v. Wolffs, 594 F.2d 77 (5th Cir. 1979) ..... 25

United States v. Hartley, 796 F.2d 112

(Sth Cir. 1986) ......-- 222s eee rterce 25

United States v. Thompson, 33 MJ. 218 (U.S. Ct. Mil.

App. 1991), cert. denied, 112 S. Ct. 972 (1992)

on e eecee as eens sana 3, 20, 22

United States v. Walden, 490 F.2d 372 (4th Cir. 1974)

cert. denied, 417 U.S. 977 (1974) ....----- 7, 24, 25

OTHER CASES

Taylor v. State, 645 P 2d 522 (Okla. Crim. App. 1982)

noe een ees 6s ees nee 6s eee eee 7. 36, 27

(vi)

OTHER AUTHORITIES

House Conf. Rep. No. 100-989, at 453, U.S. Code

Cong. & Admin. News, 100th Cong. 2d Sess., vol. 5 at

2503, 2581 19

(vi)

‘a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No.

CAROL J. APPLEWHITE,

Petitioner,

V.

UNITED STATES AIR FORCE,

RANDALL L. FAULKNER, LEONARD ROSS,

AND WILLIAM E. MCBRIDE,

Respondents.

Petition for a Writ of Certiorari to the

Tenth Circuit Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Carol J. Applewhite, (hereinafter

"Applewhite") respectfully petitions this Court for a

writ of certiorari to review the decisions of the Tenth

Circuit Court of Appeals entered in this case on June

9, 1993 and August 10, 1993.

2

OPINIONS BELOW

The Memorandum Opinion and Order, entered

March 19, 1992, of the United States District Court for

the District of New Mexico, No. CIV 88-0821 SC, is

unreported and is set forth in Appendix B. Pet. App.

15a-30a. The decision of the Tenth Circuit Court of

Appeals is reported at 995 F.2d 997 and is set forth in

Appendix A. Pet. App. la-14a.

JURISDICTION

The judgment of the Tenth Circuit Court of

Appeals was entered June 9, 1993. Applewhite's

timely Petition for Rehearing, Appendix E. Pet. App.

37a, was denied by an Order entered August 10, 1993.

Appendix C. Pet. App. 3la-32a. This Court has

jurisdiction to review the judgment of the Tenth

Circuit Court of Appeals under 28 U.S.C. § 1254.

3

CONSTITUTIONAL AND

STATUTORY PROVISIONS

This case involves the Fourth Amendment,

Security from Unreasonable Searches, U.S. Const.,

Amend. IV, and Fifth Amendment, Rights of Accused

in Criminal Proceedings, U.S. Const. Amend. V, to the

United States Constitution and the Posse Comitatus

Act, 18 U.S.C. § 1385. These provisions are set forth in

Appendix C. It should be noted that the military

activities complained of took place in 1986, three years

prior to the 1989 provisions authorizing the Secretary

of Defense to prescribe regulations governing drug

enforcement "support" activities by the military. See,

discussion of 10 U.S.C. § 375, set forth in Appendix D,

Pet. App. 35a, in United States v. Thompson, 33 M.J.

218 (U.S. Ct. Mil. App. 1991), cert. denied, 112 S. Ct.

972 (1992).

4

STATEMENT OF THE CASE

This is an action under the Federal Tort Claims

Act, 28 U.S.C. §§ 2671 - 2680 and Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), brought by a civilian who was caught up in an

off-base drug "sting" operation conducted by Air Force

OSI officers. Pet. App. 16a. The Federal District Court

for the District of New Mexico had jurisdiction

pursuant to 28 U.S.C. § 1346(b) and 28 U.S.C. §

2680(h).

In August 1986, Petitioner Applewhite

accompanied her husband, a member of the United

States Air Force, to an off-base apartment. At the

apartment, Applewhite's husband participated in a

drug purchase and was arrested by the OSI officers.

Pet. App. 16a. Applewhite, who was in her postal

service uniform at the time, was also taken into

custody, pat-down searched, handcuffed and

5

transported by the OSI officers to a nearby Air Force

base where she was subjected to a partial strip search.

Pet. App. 16a. After Applewhite was brought to the

Air Force base, the OSI agents contacted the civilian

law enforcement authorities who declined to prosecute.

Pet. App. 16a. Applewhite was then interviewed,

brought to a room where her husband was being

detained and eventually released. Pet. App. 16a.

Applewhite's husband was later court martialed. Pet.

App. 16a. The OSI officers reported the incident to

Applewhite's superiors at the Postal Service, and she

was discharged from her employment. Pet. App. 16a-

17a.

Thereafter, Applewhite brought a Federal Tort

Claims action against the Air Force and a Bivens

action against the individual OSI officers for

constitutional and statutory violations, specifically a

violation of the Posse Comitatus Act. Pet. App. 17a.

Applewhite successfully served three of the individual

HY

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eeemesansecenaaemaa cetacean aaa ieee a enaeainiaa

6

OSI officers, Randall L. Faulkner, Leonard Ross and

William E. McBride. The-Federal District Court for

the District of New Mexico denied an initial motion for

Summary judgment filed by Ross and Faulkner based

on qualified immunity in August 24, 1989. Pet. App.

7a. At that time, the District Court found that "law

enforcement officers generally know that it is clearly

established law that they have absolutely no authority

to go outside the confines of a military installation and

arrest a civilian, transport her to a military

installation, detain and strip search her." Pet. App.

18a. None of the defendants appealed the 1989 ruling

by the District Court.

In early 1992, shortly before the date set for

trial, Ross and Faulkner reasserted their qualified

immunity defense and McBride brought a qualified

immunity motion for the first time. Pet. App. 18a. In

its Memorandum Opinion and Order, the District

Court carefully reviewed evidence concerning the

7

participation of each of the three individual officers in

the incident. Pet. App. 19a-24a. The District Court

found that "there was no coordination with any

civilian law enforcement authority until after the fact.”

Pet. App. 21a. Contrast the fact situations in Taylor v.

State, 645 P.2d 522 (Okla. Crim. App. 1982), and

United States v. Walden, 490 F.2d 372 (4th Cir. 1974)

cert. denied, 417 U.S. 977 (1974), where there was

active coordination between military and civilian

authorities prior to and at the time of the “bust.”

The District Court concluded that defendant

McBride's activity in planning the “bust” and in failing

to protest Applewhite's detention and transportation to

the military base was not "objectively reasonable as a

matter of law." Pet. App. 22a. The District Court also

concluded that Faulkner and Ross’ activities in

detaining Applewhite at the base were not objectively

reasonable as matter of law. Pet. App. 24a.

a

8

The District Court Memorandum Opinion and

Order also considered the defendants’ argument that

"the individual Defendants are entitled to qualified

immunity because it was not clearly established that

the Posse Comitatus proscription against military

involvement in civilian law enforcement would

encompass a case like this where ‘a civilian is swept

up in an operation intended to detect and punish

wrongdoing by military personnel.” Pet. App. 25a.

The District Court rejected this argument and held

that it had already established as "law of this case"

that the treatment of Applewhite involved a violation

of clearly established law. Pet. App. 25a.

The District Court further noted that Bissonette

v. Haig, 800 F.2d 812 (8th Cir. 1986) (en banc), aff'd,

for absence of quorum, 485 U.S. 264 (1988), recognized

a Bivens private cause of action for damages for

violation of the Posse Comitatus Act. Pet. App. 27a. In

Bissonette, Native Americans were confined to the

9

village of Wounded Knee by civilian roadblocks. The

military provided personnel and equipment for

surveillance. The court recugnized a possible Bivens

claim for violation of Fourth Amendment rights by

reason of the Posse Comitatus Act.

On appeal, the Tenth Circuit Court of Appeals

added a number of allegedly "undisputed facts,” not in

the findings of the District Court, concerning

Applewhite's participation in the drug sale and her

alleged possession of contraband. Pet. App. 2a-7a. As

pointed out in Applewhite's Petition for Rehearing,

these facts were not "undisputed," and the Tenth

Circuit improperly resolved the disputed facts in favor

of the officers instead of Applewhite. Applewhite's

Petition for Rehearing is set forth in Appendix E. Pet.

App. 37a. In any event, the Tenth Circuit stated that:

The totality of the foregoing made it

reasonable for the agents to regard

[Applewhite] as a participant with [her

husband] in a narcotics buy and remove

her somewhere while the Albuquerque

ee

10

Police were contacted to see if they would

take over this civilian intruder/

participant in the military "sting." ... The

agents were not required to let her go,

given what they had learned about her,

nor were they required to hold her in the

"sting" apartment or in a car while

waiting for an answer from the

Albuquerque Police Department.

Accordingly, the removal to the base with

her husband was, we conclude,

reasonable. Given all this, the partial

strip search at the base was the product F

of particularized, reasonable suspicion

and was not unreasonable, particularly in

view of what the pat-down search at the

apartment had already revealed...

Pet. App. lla-12a, citations omitted.

The Tenth Circuit went on to hold that "Mrs.

Applewhite's husband, not the military, was

responsible for the involvement of his civilian wife.

This being established on the undisputed facts on this

record, there was no violation by the OSI agents of

any ‘clearly established statutory nghts' of Mrs.

Applewhite." Pet. App. 13a. As to the existence of a

principle of established law constraining military

11

authorities from detaining and transporting civilians

onto military bases, the Tenth Circuit held that:

[Applewhite] having been brought in to

the point of sale by her buyer husband,

and the contraband thereafter found on

her person, it was objectively reasonable

for the agents to detain the plaintiff

somewhere long enough to inquire as to

whether civilian authorities had any

interest in taking over any prosecution.

In these circumstances, the agents could

hardly have justified her immediate

release just because she was a civilian.

Pet. App. 13a-14a.

In other words, the Tenth Circuit has held that

once a civilian is caught up in an off-base military

drug “bust,” and the military finds contraband on the

civilian, it is objectively reasonable to transport and

detain the civilian in any location, including a

military detention facility, for whatever time it takes

to contact the civilian authorities. Applewhite

continues to object to the Tenth Circuit's improper

resolution of disputed facts in favor of the defendants.

However, even accepting the Tenth Circuit's resolution

12

of the facts, the Court's failure to set any limits on the

military treatment of civilians on the scene of military

drug enforcement activities renders the Posse

Comitatus Act meaningless in the Tenth Circuit.

Inasmuch as this Court has not recently considered

the issue of civilians who are taken into custody off

base by military law enforcement officers. Applewhite

respectfully requests this Court to review the question

of what, if any, legal and constitutional constraints

should apply to off-base “busts” of civilians by military

authorities for activities not undertaken for a

legitimate military or foreign affairs purpose.

REASONS FOR GRANTING THE WRIT

I. ALTHOUGH THIS COURT HAS STATED

THAT UNLAWFUL ACTIVITIES BY THE

MILITARY WILL NOT GO UNREMEDIED, IT

HAS NOT SPELLED OUT A SPECIFIC

JUDICIAL REMEDY. THE JUDGMENT IN

THE PRESENT CASE EFFECTIVELY

FORECLOSES ANY JUDICIAL REMEDY IN

THE TENTH CIRCUIT.

13

The separation of military and civilian affairs in

peacetime is a traditional principle of American public

policy which dates back to the American Revolution.

In 1972, this Court held that:

The concerns of the Executive and

Legislative Branches in response to

disclosure of the Army surveillance

activities ... reflect a traditional and

strong resistance of Americans to any

military intrusion into civilian

affairs...Indeed, when presented with

claims of judicially cognizable injury

resulting from military intrusion into the

civilian sector, federal courts are fully

empowered to consider claims of those

asserting such injury; there is nothing in

our Nation's history or in this Court's

decided cases, including our holding

today, that can properly be seen as giving

any indication that actual or threatened

injury by reason of unlawful activities of

the military would go unnoticed or

unremedied.

Laird v. Tatum, 408 U.S. 1, 15-16 (1972). The

framework of this judicial remedy was not specifically

set forth.

The Congressional expression of the separation

between the military and civilian authorities has been —

14

incorporated into a criminal proscription known as the

Posse Comitatus Act. The Posse Comitatus Act

provides that:

Whoever, except in cases and under

circumstances expressly authorized by the

Constitution or Act of Congress, willfully

uses any part of the Army or the Air

Force as a posse comitatus or otherwise to

execute the laws shall be fined not more

than $10,000 or imprisoned not more

than two years, or both.

18 U.S.C. § 1385.

In 1986, the Eight Circuit Court of Appeals

considered the argument that military intrusion into a

civilian law enforcement operation in violation of the

Posse Comitatus Act was actionable as a direct

violation of the Fourth Amendment under the rule in

Bivens. Bissonette, 800 F.2d at 813-814. The Fourth

Amendment was considered because the military

activity in the Bissonette case was confined to the

provision of surveillance personnel and equipment.

The Court dismissed a Fifth Amendment claim

15

because the plaintiffs were already entitled to relief

under the Fourth Amendment. See discussion by panel

in Bissonette v. Haig, 776 F.2d 1384, at 1391-1392

(8th Cir. 1985), aff'd en banc by Bissonette, 800 F.2d

812 (8th Cir. 1986). In Bissonette, the Eight Circuit

concluded that:

In the present case...we deal with

something quite different from a seizure

simply unauthorized by statute. We deal

with a seizure affirmatively forbidden by

a criminal law of long standing, itself

expressive of an authentically American

tradition of even longer standing. We

conclude...that the complaint states a

claim under the Fourth Amendment.

Bissonette, 800 F.2d at 816. The Eighth Circuit

decision was affirmed by this Court for lack of a }

quorum. Bissonette, 485 U.S. 264 (1988). There was no

consideration of the merits by this Court. Applewhite's

Bivens claim is well grounded in existing caselaw,

such as it is. Bissonette; Laird.

The Tenth Circuit judgment in the present case

did not specifically foreclose the possibility of a Bivens

16

action based upon military intrusion into civilian law

enforcement. However, the language used in the

judgment suggests that such an action would be met

with judicial disapproval. "Airman Applewhite was

court-martialed for the said events of August 1, 1986.

Mire. Applewhite. on the other hand, filed a Bivens

action for damages..." Pet. App. 5a-6a. More

importantly, the fact situation in the present case is so

egregious as to have a chilling effect on future

attempts to seek a remedy for military intrusion into

civilian law enforcement in the Tenth Circuit. It is

difficult to conceive of a more pervasive military

intrusion than taking a civilian into custody,

transporting her to a military base, searching and

detaining her on the military reservation. See

discussion of exclusionary rule cases below. All of this

activity was justified by the Tenth Circuit on the

grounds that civilians caught up in off-base miliary

drug busts are merely "intruder/participants” in

’

17

military law enforcement activities and, therefore, are

not entitled to any rights by virtue of their civilian

status. Pet. App. lla. If this is objectively reasonable

under existing law, the Posse Comitatus Act has

become an anachronism, and there is no judicial

remedy for unlawful military activities, at least not in

the Tenth Circuit.

Il. THE TENTH CIRCUIT JUDGMENT FLIES IN

THE FACE OF CONGRESSIONAL INTENT

TO PREVENT THE MILITARY FROM

PARTICIPATING IN SEARCH AND

SEIZURES AND ARREST OF CIVILIANS.

The Tenth Circuit judgment in the present case

failed to note any difference in the legislative climate

between pre-1989 military drug enforcement and the

present rules. The precedent set by the Tenth Circuit

judgment is that military law enforcement agents

operating within the Tenth Circuit are now fully

authorized to initiate, as well as participate in, the

search and seizure and the arrest of civilians

whenever the civilians are interacting with military

18

defendants. "Mrs. Applewhite's husband, not the

military, was responsible for the involvement of his

civilian wife." Pet. App. 13a. An examination of the

fact situations in the pre-1989 "exclusionary rule"

cases involving military drug enforcement activities

indicates that this was not the law in 1986. See

discussion below. It most certainly is not the present

law.

In 1989, Congress passed 10 U.S.C. § 375 as

part of the National Defense Authorization Act of

1989. The purpose of the legislation was to implement

military participation in the "war on drugs." The

House Conference Report states that:

...[NJone of the federal law enforcement

agencies have requested use of military

personnel to supplement their arrest,

search and seizure functions...

The demand by some for use of the

military in drug-related arrests would

quickly fade in the face of actual law

enforcement confrontations between the

uniformed military and American

19

civilians...The Posse Comitatus Act, as

one court has noted, is not "an

anachronistic relic of an historical period

the experience of which is irrelevant to

the present. It expresses the inherited

antipathy of the American to the use of

troops for civil purposes...Its relevance to

this age is sadly clear." Wrynn v. United

States, 200 F. Supp. 457, 465 (E.D. NY.

1961).

House Conf. Rep. No. 100-989, at 453, U.S. Code

Cong. & Admin. News, 100th Cong. 2d Sess., vol. 5 at

2503, 2581.

In furtherance of the Congressional purpose, the

Secretary of Defense has promulgated certain

-__ —- ~—_ —

"Restrictions on direct assistance" of military personnel

working with civilian authorities. 32 C.F.R. §

213.10(a)(3)(ii). Three of the forms of direct assistance

specifically proscribed are a search or seizure; an

arrest, stop and frisk, or similar activity; and use of

military personnel for surveillance or pursuit of

individuals, or as informants, undercover agents,

20

investigators, or interrogators. Exception to these

restrictions are:

[a]ctions that are taken for the primary

purpose of furthering a military or foreign

affairs function of the United States,

regardless of incidental benefits to

civilian authorities. This provision must

be used with caution, and does not

include actions taken for the primary

purpose of aiding civilian law

enforcement officials or otherwise serving

as a subterfuge to avoid the restrictions of

the Posse Comitatus Act...

32 C.F.R. § 213.10(a)(2)(i).

The significance of these regulations to off-base

undercover actions against military personnel was

considered in Thompson. There the defendant was

military, and the evidence seized was stolen civilian

property. The search warrant was civilian, but was

based on military information. Both military and

civilian law enforcement officers were present at the

arrest. The Court of Military Appeals held that the

military had concurrent jurisdiction over crimes

21

committed in the civilian community by military

personnel, that the military activities were done

primarily to enforce military law and, therefore, there

was no violation of the Posse Comitatus Act or the

Secretary's regulations.

In the present case, we have a drug "bust"

which arguably began primarily for military purposes,

l.e., to arrest military personnel for off-base offenses

under the Uniform Code of Military Justice, 10 U.S.C.

§§ 801-940. There was, however, no coordination with

the civilian authorities to deal with civilian

participants until after the fact. Further, the Air Force

never had concurrent or any other jurisdiction over

Applewhite because she was a civilian and was not

subject to the Uniform Code of Military Justice.

Therefore, taking Applewhite into custody and

transporting her to the base for detention could not be

primarily undertaken for a legitimate military or

22

foreign affairs purpose. Despite the total lack of

jurisdiction, the military officers did take Applewhite

into custody, and transported her to a military

reservation where they searched her person. In short,

they treated her like a member of the armed forces up

to the point of charging her with an offense under the

Uniform Code of Military Justice. It should be

remembered that Applewhite was wearing a postal

service uniform at the time, and no one has claimed

there was there was a mistake as to her status.

The U. S. Court of Military Appeals has held

that the seizure of civilian evidence by the military is

proper where civilian authorities are present at the

search and arrest, the military has concurrent

jurisdiction over the defendant, and the primary

reason for the military involvement is to enforce the

Uniform Code of Military Justice, not to aid civilian

authorities. Thompson, 33 M.J. at 221. The Tenth

Circuit judgment now extends this to sanction off-base

23

raids by the military without any prior coordination

with the civilian authorities, and allows military

officers to take civilians into custody, transport them

to military places of detention and only then inform

the civilian authorities. The time has come to make

some basic distinctions.

The defendants argued on appeal that

Applewhite was analogous to a piece of civilian

evidence which was accidentally seized at the off-base

"bust." Applewhite is not a piece of evidence. She is a

person with constitutional and statutory rights. She

was not under the jurisdiction of the military,

concurrent or otherwise. The actions of the OSI

officers were merely a subterfuge to avoid the

restrictions prescribed by the Posse Comitatus Act on

how they can handle civilians caught up in their

military drug enforcement activities. In 1989 Congress

had the opportunity to repeal the Posse Comitatus Act

and permit the military to engage in direct law

24

enforcement activities in order to promote the "war on

drugs." Congress deliberately refused to do so. The

Tenth Circuit should not be permitted to countermand

Congress’ decision.

Ill. INREFUSING TO APPLY AN

EXCLUSIONARY RULE TO MILITARY

INTRUSIONS INTO CIVILIAN LAW

ENFORCEMENT, SEVERAL CIRCUITS

HAVE STATED THAT THEY WILL

RECONSIDER THE ISSUE IF THERE WAS

FUTURE ABUSE. THE PRESENT CASE

REPRESENTS AN EGREGIOUS ABUSE OF

POWER BY THE MILITARY AND THIS

COURT SHOULD RECONSIDER SPECIFIC

JUDICIAL REMEDIES.

In 1974, the Fourth Circuit Court of Appeals

considered the application of the Posse Comitatus Act

to create an exclusionary rule which would exclude

evidence obtained as the result of illegal military

intrusions into civilian law enforcement investigations.

See, Walden. The evidence in Walden consisted of the

testimony of three Marines and a Treasury Agent who

posed as ordinary firearms purchasers while actually

working as undercover agents. Unlike the present

25

case, the operation was fully coordinated with the

civilian Treasury agents and there is no indication

that the Marines made the actual arrest. The Court

noted that "this case is the first instance to our

knowledge in which military personnel have been used

as the principal investigators of civilian crimes."

Walden, 490 F.2d at 377. Therefore, the Fourth Circuit

declined to apply an exclusionary rule against the

military investigators. However, the court reserved

"the possibility that such a rule may be called for

should repeated cases involving military enforcement

of civilian laws demonstrate the need for the special

sanction of a judicial deterrent." Walden, 490 F.2d at

373. This reservation was confirmed in later cases

involving violation of military regulations and/or the

Posse Comitatus Act by military investigators in drug

cases. See State v. Wolffs, 594 F.2d 77 (5th Cir. 19'79):

United States v. Hartley, 796 F.2d 112 (5th Cir. 1986).

26

The federal cases refusing to apply an

exclusionary rule uniformly involved the use of

military undercover agents working in coordination

with civilian authorities. In many of these cases, the

military involvement was so minimal as to raise

questions as to whether there was, in fact, a violation

of the Posse Comitatus Act. See, for example, Haynes v.

Hawes, 921 F.2d 100 (7th Cir. 1990), decided under

the 1989 amendments to the Act, where the military

did not become involved in any of the arrest, search

and seizure or transportation of the evidence.

One case which did apply an exclusionary rule

concerned a military police officer who made an off-

base purchase of drugs with money provided by the

civilian police department. See, Taylor. As in the

present case, the justification for military presence

was that the sale involved two enlisted men. The

military officer was present during the arrest, pulled

out a gun, helped the civilian authorities search the

27

apartment and transported the evidence. The state

court held that "military intervention was excessive"

and excluded the evidence obtained at the arrest.

Although Taylor has been cited as an example of

"pervasive" military presence justifying the imposition

of an exclusionary rule, see discussion in Haynes, 921

F.2d at 103, the military action was still less than in

the present case. In Taylor, the civilian authorities

coordinated the operation and were at the scene of the

arrest. There was no attempt to transport the civilian

defendant onto a military reservation or to obtain

civilian approval after the fact.

Because Applewhite was never charged or

prosecuted by the civilian authorities, there is no

exclusionary rule issue in the present case. As far as

Applewhite is concerned, the application of an

exclusionary rule is not an appropriate remedy. If

there is a remedy other than an action under the

Federal Tort Claims Act and a Bivens action,

28

Applewhite is unaware of it. The Tenth Circuit.

however, has ruled that the Bivens action and, under

law of the case, the Tort Claims action fail because

Applewhite was not entitled to any special

consideration "just because she was a civilian.” Pet.

App. 14a. The clear implication is that it is not against

the law for military officers to arrest, search and seize

evidence from civilians where a drug "bust" is

involved, subject only to general considerations of

probable cause. Pet App. 10a and 13a. This was not

the law in 1986 and is not the law now. Haynes.

In Laird this Court stated that actual or

threatened injury by reason of unlawful activities by

the military would not go unnoticed or unremedied. In

the present case, the Tenth Circuit has expressed their

disagreement by finding that blatant violations of the

Posse Comitatus Act were reasonable under the

circumstances of a civilian "intruder/participant” in an

off-base drug "bust." The Tenth Circuit's decision to

29

disregard the Posse Comitatus Act has deprived

Applewhite of her remedy. Further, the facts in the

present case are so egregious that the Tenth Circuit

judgment will have a chilling effect on any future

attempts to cbtain redress for military intrusions into

civilian law enforcement which occur within the Tenth

Circuit. Applewhite respectfully requests this Court to

issue a writ and to clanfy Applewhite's remedy in this

case.

CONCLUSION

Applewhite respectfully requests this Court to

grant her writ of certioram and (1) summarily vacate

or reverse the judgment of the Tenth Circuit Court of

Appeals, or (2) set this case for plenary consideration.

Respectfully submitted,

JOHN R. POLK

Counsel of Record

United New Mexico Bank Building

320 Gold, S.W., Suite 910

Albuquerque, NM 87102

(505) 247-1100

APPENDICES

la

APPENDIX A

Carol J. APPLEWHITE,

Plaintiff-Appellee,

Vv.

UNITED STATES AIR FORCE,

Defendant,

Randall L. Faulkner, Leonard Ross,

and William E. McBride,

Defendants-Appellants.

No. 92-2062.

United States Court of Appeals,

Tenth Circuit.

June 9, 1993.

[Rehearing Denied Aug. 10, 1993.]

995 F.2d 997

Before KELLY and BARRETT, Circuit Judges,

and OWEN, District Judge.

OWEN, Senior District Judge.

* The Honorable Richard Owen, Senior United States

District Court Judge for the Southern District of New York,

sitting by designation.

ER AI EE ETN a

2a

As part of its efforts to deal with illegal drug

activity by enlisted personnel on the Kirtland Air

Force Base,’ the United States Air Force Office of

Special Investigations (OSI) conducted an undercover

drug "sting operation” in an off-base Albuquerque,

New Mexico apartment on August 1, 1986. The

operation was of the "buy-bust” type; any military

personnel purchasing drugs was to be immediately

arrested. The operation was expected to last only a

few hours before its inevitable exposure due to the

probable notoriety of any arrests.”

The undisputed facts are as follows. Airman

First Class William Applewhite lived with his wife

Carol on the Kirtland base. They drove into

Albuquerque together; he to buy drugs at the "sting"

' Kirtland Air Force Base is located in Albuquerque,

New Mexico.

? The OSI agents were instructed that any civilian who

came on the scene and became involved in the operation could be

detained until that person could be turned over to local

authorities.

LK ae

3a

apartment. Upon arrival at the "sting" apartment,

Airman Applewhite went inside and his wife stayed in

the car. Once inside, Airman Applewhite asked a

woman undercover agent for marijuana’ saying, “Let

me check with Carol and see if she's interested in

buying cocaine.” He then went down to the car, talked

a couple of minutes with Carol and then they both

came back up to the apartment. Mrs. Applewhite, a

United States Postal Service employee, was wearing

her Postal Service uniform at the time. While there is

a factual dispute as to whether once inside the

apartment Mrs. Applewhite had a conversation with

her husband about purchasing drugs for friends and

furnished the money for the marijuana,’ or whether

she only asked for, and got a drink of water,” Mrs.

’ The OSI agents were instructed that any civilian who

came on the scene and became involved in the operation could be

detained until that person could be turned over to local

authorities.

‘ OSI Agent Filipovich's testimony.

5 Mrs. Applewhite's testimony.

EEE eee

4a

Applewhite has acknowledged that she was aware her

husband's marijuana purchase was going on at a time

she was in the same room in the ene In any

event, her husband was forthwith arrested, and as is

routine, and in order to be sure that Mrs. Applewhite

posed no threat to the arresting authorities, she was

subjected to a pat-down search. During the pat-down

search a partially-filled syringe with a hypodermic

needle which had been in her knee-high stocking fell

out or she pushed it out onto the floor.” The search

also revealed amphetamines in her purse. She was

then handcuffed and both she and her husband were

transported by OSI agents back to Kirtland.

* Her testimony was that "[t]hey were doing some sort of

an exchange....”

"When asked on her deposition why there was a syringe

in her sock, Mrs. Applewhite testified: "I had found it in my car

and I had a habit of carrying stuff in my socks as it was, and |

just kind of stuck it there until I--for some reason [ left, I

believe."

Sa

Upon arriving at Kirtland, plaintiff was

partially strip-searched and interviewed by OSI

personnel. When OSI finished questioning her, she

was brought to a conference room where her husband

was being detained, and was herself detained

approximately two to three hours. During this time, a

member of the OSI "sting" unit, who at other hours

was also a member of the Albuquerque Police

Department, called the Albuquerque Police and told

them that they had a civilian in custody and asked if

they wanted to take over that part of the

investigation. The Albuquerque police declined. Mrs.

Applewhite was thereupon released. OSI later

reported the incident to the United States Postal

Service, following which plaintiff lost her job.

Airman Applewhite was court-martialed for the

said events of August 1, 1986. Mrs. Applewhite, on the

|

6a

other hand, filed a Bivens action for damages*® against

three OSI Officers involved in the "sting", Faulkner,

Ross, and McBride, alleging violations of the Posse

Comitatus Act’ and the Fourth and Fifth Amendments

to the United States Constitution. The said officers

moved for summary judgment on the ground of

qualified immunity, contending that their acts did not

violate any clearly established statutory or

constitutional right of Mrs. Applewhite of which a

reasonable person would have known, citing Harlow v.

Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d

* Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619

(1971). Bivens established that a civilian has a cause of action

against a federal official in his individual capacity for damages to

the civilian arising out of the federal official's violation of federal

constitutional law.

* The Posse Comitatus Act, 18 U.S.C. § 1385, states:

Whoever, except in cases and under circumstances

expressly authorized by the Constitution or Act of

Congress, willfully uses any part of the Army or

the Air Force as a posse comitatus or otherwise to

execute the laws shall be fined not more than

$10,000 or imprisoned not more than two years, or

both.

ise eee

7a

396 (1982). The District Court denied the officers’

motion on Posse Comitatus Act grounds stating that

"military law enfcrcement officers generally know that

it is clearly established law that they have absolutely

no authority to go outside the confines of a military

installation and arrest a civilian, transport her to a

military installation, detain and strip search her.”'°

This appeal followed pursuant to 28 U.S.C.

§ 1291."' We review legal determinations of the Court

below de novo resolving any material factual issues in

favor of Mrs. Applewhite. Austin v. Hamilton, 945

F.2d 1155, 1158 (10th Cir.1991). The defendants

having raised the qualified immunity defense, the

10 Applewhite v. U.S. et al., No. 88-0821, slip op. at 2

(D.N.M. Mar. 19, 1992).

'! "The entitlement to qualified immunity ‘is an

immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.” Pueblo Neighborhood Health

Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,

2815, 86 L.Ed.2d 411 (1985) (emphasis in original)). Accordingly,

an immediate appeal may be taken from a denial of immunity

8a

burden is on the plaintiff to marshal facts showing

that (1) the defendants’ conduct violated the law, and

(2) the law was clearly established when the violation

occurred. See, Siegert v. Gilley, U.S. __, RES Gf |

S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991): Snell v. )

Tunnell, 920 F.2d 673, 696 (10th Cir. 1990), cert.

denied, __ U.S. ___, 111 S.Ct. 1622, 113 L.Ed.2d 719

(1991). Plaintiff having endeavored such a showing,

defendants must then establish that no material facts

preclude summary judgment on the basis of qualified

immunity. Salmon v. Schwarz, 948 F.2d 1131, 1136

(10th Cir. 1991).

It is now well established that a

law-enforcement official is entitled to qualified

immunity if his conduct "does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known." Harlow, 457

US., at 818, 102 S.Ct. at 2738 (citations omitted).

Subsequently, Anderson v. Creighton, 483 U.S. 635,

9a

639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1986),

stated, "[W]hether an official protected by qualified

immunity may be held personally liable for an

allegedly unlawful official action generally turns on

the ‘objective legal reasonableness’ of the action,

Harlow, 457 U.S., at 819 [102 S.Ct. at 2739], assessed

in light of the legal rules that were ‘clearly

established’ at the time it was taken, id., at 818 [102

S.Ct. at 2738]." Anderson further stated, "The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right. This is not to say that an

official action is protected by qualified immunity

unless the very action in question has previously been

held unlawful, ...; but it is to say that in the light of

pre-existing law the unlawfulness must be apparent."

Id. 483 U.S. at 640, 107 S.Ct. at 3039 (citations

omitted). And even more recently, in Hunter v.

Bryant, ___ U.S. __, 112 S.Ct. 534, 116 L.Ed.2d 589

10a

(1991), the Court stated how the standard is to be

viewed.

The qualified immunity standard ‘gives ample

room for mistaken judgments' by protecting ‘all

but the plainly incompetent or those who

knowingly violate the law.' ... This

accommodation for reasonable error exists

because ‘officials should not err always on the

side of caution' because they fear being sued.

Hunter, _ U S.. at , 112 S.Ct., at 537 (citations

omitted).

Here, the military having set up a "sting" for

errant military personnel, Airman Applewhite came

into the "sting" apartment and sought to buy

marijuana. Unexpectedly, the Airman brought his

civilian wife up from the car and thereafter concluded

the exchange in her presence. Upon his being

immediately busted, the search of his wife was

reasonable to be sure she posed no threat to the

agents. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868,

1883, 20 L.Ed.2d 889 (1968). That search revealed

her possession of a partially-filled hypodermic and

lla

needle in her stocking, and amphetamines in her

handbag. The totality of the foregoing made it

reasonable for the agents to regard her as a

participant with him in a narcotics buy and remove

her somewhere while the Albuquerque Police were

contacted to see if they would take over this civilian

intruder/participant in the military "sting." Beck v.

Ohio, 379 US. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d

142 (1964); United States v. Allen, 986 F.2d 1354,

1357 (10th Cir.1993); United States v. Romero, 692

F.2d 699, 703 (10th Cir.1982). The agents were not

required to let her go, given what they had learned

about her, nor were they required to hold her in the

"sting" apartment or in a car while waiting for an

answer from the Albuquerque Police Department.

Accordingly, the removal to the base with her husband

was, we conclude, reasonable. Given all this, the

partial strip search at the base was the product of

particularized, reasonable suspicion and was not

aaa

12a

unreasonable, particularly in view of what the

pat-down search at the apartment had already

revealed. Chapman v. Nichels, 989 F.2d 393, 396,

398-99 (10th Cir.1993).

The Posse Comitatus Act is clearly designed to

restrict military involvement in civilian law

enforcement. United States v. Walden, 490 F.2d 372,

375 (4th Cir.1974), cert. denied, 416. U.S. 983, 94 S.Ct.

2385, 40 L.Ed.2d 760 (1974). It is not intended to

——— _ limit the military in preventing illicit drug

transactions by active duty military personnel,

whether such conduct occurs on or off a military

installation. Hayes v. Hawes, 921 F.2d 100 (7th

Cir.1990), Harker v. State, 663 P.2d 932, 936 (Alaska

1983). Since there was an independent military

purpose to OSI's conduct, there was necessarily no

wilful use of any part of the Air Force as a posse to

execute civilian laws, nor did military law enforcement

officers go outside the confines of a military

a

13a

installation to arrest a civilian as the Court below

viewed it. The agents went off base to "sting" military

personnel, not civilians. Mrs. Applewhite's husband,

not the military, was responsible for the involvement

of his civilian wife. This being established on the

undisputed facts on this record, there was no violation

by the OSI agents of any "clearly established statutory

rights" of Mrs. Applewhite.

As to her claim that the OSI agents violated

some clearly established constitutional rights under

the Fourth and Fifth Amendments--a ground the

Court below did not reach--we but observe that based

on the said undisputed facts,-- she having been

brought in to the point of sale by her buyer husband,

and the contraband thereafter found on her person, it

was objectively reasonable for the agents to detain the

plaintiff somewhere long enough to inquire as to

whether civilian authorities had any interest in taking

over any prosecution. In these circumstances, the

l4a

agents could hardly have justified her immediate

release just because she was a civilian. United States

uv. Ortiz, 966 F.2d 707 (1st Cir.1992), cert. denied, __

US. __, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993);

United States v. Lema, 909 F.2d 561 (1st Cir.1990);

United States v. Banks, 539 F.2d 14, 16 (9th Cir.), cert.

denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626

(1976).

Accordingly, there having been no violation of

plaintiff's rights in either the statutory or

constitutional areas, Harlow uv. Fitzgerald, supra,

mandates the grant of qualified immunity to the

agents.

Accordingly, the order of the District Court

denying summary judgment to the appellant agents is

reversed, and the action is remanded to the District

Court with directions to grant summary judgment to

Officers Ross, McBride, and Faulkner dismissing the

action on the grounds of qualified immunity.

15a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CAROL J. APPLEWHITE,

Plaintiff,

vs. No. CIV 88-0821-SC

THE UNITED STATES OF AMERICA,

UNITED STATES AIR FORCE, and

OPAL KNOWLES, RANDALL L. FAULKNER,

LEONARD ROSS, WILLIAM E. MCBRIDE,

MICHAEL C. SAVAGE, KATHERINE

MCKENZIE, Individually,

Defendants.

MEMORANDUM OPINION AND ORDER

This case is before me on two motions: (1)

Motion for (partial) Summary Judgment on Behalf of

Defendants Randall L. Faulkner, Leonard Ross and

William McBride, which is based on the defense of

qualified immunity; and (2) Defendants’ Motion in

Limine To Bar Reference at Trial to Plaintiff's

16a

Termination by the Postal Service. Both motions will

be denied.

Background. In this case a civilian was

caught up in a drug sting operation conducted by

military law enforcement officers. Plaintiff Carol J.

Applewhite accompanied her husband, a member of

the Air Force, to an off-base apartment. Ms.

Applewhite's husband purchased drugs and was

immediately busted. Plaintiff was also arrested, pat-

down searched, handcuffed and transported by

military police to the nearby Air Force base where she

was subjected to a partial strip search. Only then

were civilian law enforcement authorities contacted;

they declined to prosecute. Plaintiff was then

interviewed and later brought to a room where her

husband was being detained. Plaintiff's husband was

court martialed for his role in the drug transaction.

Plaintiff, who was a Postal Service employee in

uniform at the time of the incident, was reported to

17a

the Postal Service by military personnel and allegedly

lost her job as a result.

Plaintiff has two causes of action, the first for

the torts of false arrest and illegal detention brought

against the United States of America under the

Federal Tort Claims Act, 28 U.S.C. § 2671 et seg. The

second is a Bivens action against individual federal

officers for constitutional violations. This claim is

based on the alleged violation of a federal statute

designed to keep the military out of civil law

enforcement, the Posse Comitatus Act, 18 U.S. C. §

1385. Only three of the six individual defendants

have been served. The other three, Opal Knowles,

Michael C. Savage, and Katherine McKenzie, were

dismissed without prejudice.

Previously by Order of August 24, 1989 I denied

a motion for summary judgment filed by Defendants

Faulkner and Ross based on qualified immunity. I

18a

held that "law enforcement officers generally know

that it is clearly established law that they have

absolutely no authority to go outside the confines of a

military installation and arrest a civilian, transport

her to a military installation, detain and strip search

her." Memo.Op. at 5. I also found there was a factual

dispute as to the extent of the involvement of

Faulkner and Ross in Plaintiff's situation.

Motion for Summary Judgment based on

Qualified Immunity. The present motion based on

qualified immunity is reasserted on behalf of

Defendants Faulkner and Ross, and is also brought for

the first time on behalf of Defendant McBride. It

relates only to the Bivens cause of action.

The standard for the defense of qualified

immunity in a Fourth Amendment case is whether the

defendant's action was objectively legally reasonable

in light of clearly established legal rules at the time

the action was taken. Anderson v. Creighton, 483 U.S. }

19a

635, 639 (1987). A determination of whether an arrest

or search was objectively legally reasonable often

requires examination of the information possessed by

the arresting or searching officials. Anderson v.

Creighton, 483 U.S. at 641; Salmon v. Schwarz, 948

F.2d 1131, 1136 (10th Cir. 1991).

The facts as to the participation of and

information possessed by Defendant McBride, viewed

in the light most favorable to Plaintiff, are that he was

not in charge of the sting operation but he was the

assistant to the agent in charge, Michael Savage.

During the operation in the off-base apartment where

Plaintiff was arrested, McBride was not in the room

where the drug transaction took place (he was

recuperating from knee surgery and was assigned to

listen on a radio in the bedroom of the apartment), he

did not arrest Plaintiff nor did he question or search

her. According to Savage, however, McBride and

others were "primarily involved" with Plaintiff when

vienna

20a

the bust occurred. Savage Depo. at 117. He did not

transport her back to the Air Force base. He also did

not participate in the decision to confiscate her Postal

Service I.D. and government driver's license, and had

no contact with the Postal Service that allegedly led to

her termination from her job as a letter carrier.

On the other hand, McBride was fully briefed

beforehand on the operation, and specifically was

party to a plan to detain all civilians who might

accompany military personnel in the off-base buys

until the sting operation was over, not for security

purposes, but rather so those persons would not spoil

the day by broadcasting the fact of the sting to other

potential targets. The plan was described by McBride:

In the case of a civilian . . . we probably

would have tried some subterfuge first to

get rid of them; that failing, ask them for

cooperation. That failing, detain them.

McBride Depo. at 55. Also, McBride knew Plaintiff

was a civilian and he was in the room when she was

2la

initially placed under arrest and pat-down searched by

Opal Knowles. He did not protest her arrest. Later at

the base he spoke with her about the status of her

husband, and explained her status to her, i.e. that the

civilian authorities were not going to arrest her and

she was not under arrest at that time by the military

police. After civilian authorities were contacted and

declined to prosecute Plaintiff, McBride claims he

offered to let her go and she elected to stay with her

husband. However, even after McBride talked to her

and "tried to make it very clear to her that she wasn't

under arrest," McBride Depo. at 58, the military police

subjected to a “voluntary” interview.

It is significant that there was no coordination

with any civilian law enforcement authority until after

the fact. See, e.g., Clark, "Electronic Surveillance and

Related Investigative Techniques,” 128 Mil.L.Rev. 155

(1990):

22a

DOMESTIC OFF POST: regardless of the

target's status (civilian or military), the

operation must be supported by both the

appropriate civilian prosecutorial and law

enforcement authorities. ... Local law

enforcement must be either in position or

available to provide police assistance

should ... arrests become necessary.

Id. at n. 84 (emphasis added).

Even though there is no evidence that McBride

participated physically in the illegal actions towards

Plaintiff or personally made the decisions that caused

her to be arrested, strip searched, transported to the

Air Force base and detained there, McBride has not

established that he is entitled to qualified immunity

as a matter of law. He knew what the plan was,

participated in the plan, and the plan was carried out

in his presence and with his assistance. The plan

cannot be said to be objectively reasonable as a matter

of law. His actions in furtherance of the plan,

therefore, were not objectively reasonable as a matter

of law. His participation was not of the type that

23a

would entitle him to qualified immunity. Compare,

Salmon v. Schwarz, 948 F.2d i131, 1140-41 (10th Cir.

1991) (agent who executed facially valid but defective

arrest warrant entitled to qualified immunity because

he posssueed no knowledge of lack of probable cause).

The involvement of Defendants Faulkner and

Ross was different from that of McBride, in that they

may not have been as involved in the planning phase.

However, they were at least briefed on the plan to

detain civilians and they participated even more

directly in Plaintiff's detention. They were, in

McBride's words, "two cops that we borrowed."

McBride Depo. at 23. They were assigned to conduct

surveillance outside the apartment where the buy-

busts were occurring, and to transport arrestees back

to the base. They had no direct personal contact with

Plaintiff until after she had been arrested, transported

to the base, strip searched and allegedly officially

released. She was then brought to the holding room

24a

where her husband was being detained and guarded

by Faulkner and Ross. Ross testified in his deposition

that if Plaintiff had walked out of that room, he would

have "asked her to hold it" while he contacted other

agents to see if she was free to go. Ross Depo. at 42.

His main job was to guard the suspects and to keep

Plaintiff from talking to her husband. Faulkner also

testified that if Plaintiff had stood up and tried to

walk out the door, he would have detained her to find

out what he was supposed to do, and that he

understood she was "under some form of detention at

that point." Faulkner Depo. at 29.

This testimony is certainly consistent with the

plan to detain civilians until they no longer posed a

threat to the integrity of the sting wiecition, and this

additional detention occurred even after the alleged

release of Plaintiff from arrest. It cannot be said on

this state of facts that Faulkner's and Ross' actions

were objectively reasonable as a matter of law.

25a

Defendants also argue that the individual

Defendants are entitled to qualified immunity because

it was not clearly established that the Posse Comitatus

proscription against military involvement in civilian

law enforcement would encompass a case like this

where "a civilian is swept up in an operation intended

to detect and punish wrongdoing by military

personnel." However, it is the law of this case that

what is alleged to have happened to Plaintiff involved

a violation of clearly established law. Memo.Op. of

8/24/89 at 5. None of the arguments of Defendants

(asserted only in their reply brief) would suffice to

change the rulings in this case.

Defendants also argue that even courts such as

United States v. Walden, 490 F.2d 372 (4th Cir.), cert.

denied, 416 U.S. 983 (1984) that have found a

violation of the Posse Comitatus Act have refused to

let that violation be used to suppress evidence in the

underlying criminal prosection. Thus, they reason,

26a

this Court should not allow Plaintiff to recover a civil

damages remedy. The Court does not agree. If courts

have been reluctant to fashion an exclusionary rule for

violation of the Act, that is all the more reason to

allow a civil damages remedy for such a violation.

Otherwise there would be no recourse left for civilians

to enforce this important protection.

[T]he courts must force the Department

[of Defense] out of its lethargy in an area

where it should have been meeting its

responsibilities without prompting. ...

[Military commanders] must understand

that although each incident, isolated and

viewed alone, may do little harm to our

constitutional principles, it is the

collective effect and the gradual erosion of

the democratic principle of non

interference by military authority in

domestic matters that must be guarded

against.

Meeks, "Illegal Law Enforcement: Aiding Civil

Authorities in Violation of the Posse Comitatus Act,"

70 Mil.L.Rev. 83, 133-35 (1975). A Bivens private

cause of action for damages for violation of the Posse

27a

Comitatus Act has been recognized in Bissonette uv.

Haig, 800 F.2d 812 (8th Cir. 1986) (en banc) (violation

of act states claim for unreasonable search and seizure

under 4th Amendment), aff'd, lack of quorum, 485

U.S. 264 (1988).

Moreover, some courts have afforded relief to

criminal defendants where a violation of the Act was

alleged. See, e.g., Taylor v. State, 645 P.2d 522

(Okla.App. 1982) (evidence suppressed); United States

v. Banks, 383 F.Supp. 368, 374-76 (D.S.D. 1974) and

United States v. Jaramillo, 380 F.Supp. 1375 (D.Neb.

1974) appeal dismissed, 510 F.2d 808 (8th Cir. 1975)

(defendants acquitted due to possible violation of Act

because prosecution could not prove beyond a

reasonable doubt that officers were lawfully engaged

in lawful performance of duties, a necessary element).

For these reasons the motion for summary

judgment will be deined.

28a

Motion in Limine.

The damages sought by Plaintiff in both counts

of her Amended Complaint include lost wages due to

her loss of employment with the United States Postal

Service. Defendants have filed a Motion in Limine to

bar reference at trial to Plaintiff's termination by the

United States Postal Service. They base their motion

on two grounds, both of which miss the mark.

First, they argue that Plaintiff's exclusive

remedy for any damages for her termination is

through the administrative procedures prescribed by

the Postal Service. They lead the Court through a

detailed but inapplicable analysis of the remedy

available to Plaintiff if she were challenging the Postal

Service's decision to terminate her. She is not.

Second, they argue that Plaintiff's damages

claim against the United States under the Federal

Tort Claims Act is preempted by federal law. Again,

this argument might apply if Plaintiff were suing for

a em |

29a

damages caused by Postal Service personnel. She is

not.

Defendants seem to misperceive the thrust of

Plaintiff's claims. This is not an employment case; it

is a Fourth Amendment Bivens action and a tort

action for false arrest and illegal detention. It does

not challenge the actions of Postal Service employees -

for anything they may have done in the process of her

termination, but rather the actions of Air Force

personnel for causing the Postal Service to terminate

her.

The motion in Limine will be denied.

ORDER

For the reasons contained in the above Opinion,

IT IS ORDERED, ADJUDGED AND

DECREED that Defendants' Motion for Summary

Judgment is not well taken and it should be, and is

hereby, DENIED;

30a

IT IS FURTHER ORDERED that Defendants’

Motion in Limine is DENIED.

/s/ Santiago E. Campos

UNITED STATES DISTRICT JUDGE

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CAROL J. APPLEWHITE,

Plaintiff - Appellee,

V. No. 92-2062

UNITED STATES AIR FORCE,

Defendant,

and

RANDALL L. FAULKNER, LEONARD ROSS,

WILLIAM E. MCBRIDE,

ee ee ee ee ee eee ee ee

Defendants - Appellants.

ORDER

Entered August 10, 1993

Before McKay, Chief Judge, LOGAN, SEYMOUR,

MOORE, ANDERSON, TACHA, BALDOCK, BRORBY,

EBEL and KELLY, Circuit Judges.

32a

This matter comes on for consideration of

plaintiff's petition for rehearing and suggestion for

rehearing en banc.

Upon consideration whereof, the petition for

rehearing is denied by the panel that rendered the

decision.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing in

banc was transmitted to all of the judges of the court

who are in regular active service. No member of the

panel and no judge in regular active service on the

court having requested that the court be polled on

rehearing in banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing in banc is

denied.

Entered for the Court

ROBERT L. HOECKER, Clerk

iii

33a

APPENDIX D

CONSTITUTIONAL PROVISIONS

AMENDMENT IV

(Security from

Unwarrantable Search and Seizure)

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to he searched, and

the persons or things to be seized.

AMENDMENT V

(Rights of Accused

in Criminal Proceedings)

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

34a

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall he be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

35a

STATUTORY PROVISIONS

18 U.S.C. § 1385

Use of Army and Air Force

as posse comitatus

Whoever, except in cases and under

circumstances expressly authorized by the

Constitution or Act of Congress, willfully uses any

part of the Army or the Air Force as a posse comitatus

or otherwise to execute the laws shall be fined not

more than $10,000 or imprisoned not more than two

years, or both.

10 U.S.C. § 375

Restriction on Direct Participation

by Military Personnel

The Secretary of Defense shall prescribe such

regulations as may be necessary to ensure that any

activity (including the provision of any equipment or

36a

facility or the assignment or detail of any personnel)

under this chapter does not include or permit direct

participation by a member of the Army, Navy, Air

Force, or Marine Corps in a search, seizure, arrest, or

other similar activity unless participation in such

activity by such member is otherwise authorized by

law.

37a

APPENDIX E

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAROL J. APPLEWHITE,

Plaintiff-Appellee,

vs. No. 92-2062

THE UNITED STATES OF AMERICA,

UNITED STATES AIR FORCE, and

OPAL KNOWLES, RANDALL L. FAULKNER,

LEONARD ROSS, WILLIAM E. McBRIDE,

MICHAEL C. SAVAGE, KATHERINE McKENZIE,

Individually,

Defendants-Appellants.

PETITION FOR REHEARING

AND SUGGESTION

FOR REHEARING EN BANC

Petitioner, Carol J. Applewhite, hereinafter

Applewhite, petitions this Court for a rehearing on the

its Opinion filed June 9, 1993. This is a civil case in

which the United States Air Force is a party.

As grounds for her petition, Applewhite states

the following:

38a

¥ I, John R. Polk, counsel for Carol

Applewhite, express a belief, based on a reasoned and

studied profession [sic] judgment, that this appeal

involves one or more questions of exceptional

importance: What are the appropriate limits on the

arrest and detention of civilians by military officials

engaged in off-base law enforcement activities.

Because of the importance of the issue of what

are the appropriate limits on the arrest and detention

of civilians by military officials engaged in off-base law

enforcement activities, Applewhite suggests that the

rehearing be held en banc.

2. This Court's Opinion dated June 9, 1993

is based upon the allegedly "undisputed" fact that

Applewhite was found to be in possession of

"contraband," even though this fact was never

established by competent evidence or briefed on appeal

and is disputed by Applewhite.

e——

39a

3. This Court's Opinion holds that

Applewhite's possession of "contraband" made her into

a "civilian intruder/participant” in a military sting,

which, in turn, justified her removal and detention at

a military reservation. Opinion at 6. Contrary to this

Court's Opinion at 7, neither Applewhite's possession

of "contraband" nor her role as a "civilian

intruder/participant" were undisputed facts. Further,

this Court's Opinion does not define the status of an

"intruder/participant" in a military sting, nor does it

cite any authority for the proposition that being a

"civilian intruder/participant” in military stings

deprives a person of her civilian status or her

constitutional rights.

4. This Court's Opinion fails to construe the

facts in favor of Applewhite, the nonmovant in the

summary judgment procedure as required by law.

See, Luckett v. Bethlehem Steel Corp., 618 F.2d 1373

(10th Cir. 1980); Austin v. Hamilton, 945 F.2d 1155

40a

(10th Cir. 1991). To the contrary, this Court's Opinion

explicitly resolves disputed facts in favor of the

movants and recounts testimony which even the

movants admitted was disputed. See discussion below.

5. Applewhite's amended Complaint filed

April 5, 1989, stated a tort claims action against the

United States Air Force and a Bivens action against

three Air Force OSI officers, alleging violation of the

Fourth and Fifth Amendments to the United States

Constitution. App. 1-4. Only the Bivens action

against the individual Defendants is at issue in this

appeal.

6. In February and March 1989, Defendants

Ross and Faulkner made a motion for summary

judgment based upon the defense of qualified

immunity.’? Supp. App. 03 and 09. Ross and

Faulkner asserted in their motions that they had

‘8 The original Complaint in this action was filed on July

11, 1988.

4la

nothing to do with Applewhite's arrest or

transportation on to a the [sic] military base, but were

merely present to "ensure that she and her husband

did not discuss the drug investigation when they were

together at the OSI building" on the military

reservation. Supp. App. 04; see also 12.

?. Defendants’ first motion for summary

judgment was denied August 24, 1989. App. 9.

- 8. Defendants Faulkner and Ross and

Defendant McBride made another motion for summary

judgment based upon the defense of qualified

immunity on February 3, 1992. App. 20, 197. Their

statement oi allegedly "undisputed facts" mentions

that a "used hypodermic syringe and needle” was

found on Applewhite. App. 27. The contents of the

syringe were not disclosed. There was no statement

concerning the contents of Applewhite's purse, which

was seized at the military base. Therefore, the

possession of contraband by Applewhite was not at

42a

issue in the summary judgment proceeding. F. R. Civ.

P. 56; Austin. In their reply brief, Defendants agreed

that there is a dispute as to Applewhite's sites in the

drug sale. App. 164. They argued that "this dispute

is unrelated to any of the individuals named as

defendants in this lawsuit." App. 164. They further

argued that Defendants Ross and Faulkner were not

present during the "reverse sting" and that McBride

' was on crutches in the informant's bedroom at the

time of the arrest. App. 164-165. Finally, they argued

that the defendants did not participate in either the

search of Applewhite at the apartment or the partial

strip search at the military base. App. 165-167.

9. In preparation for trial, Applewhite

demanded production of her purse and its contents

which were seized during her detention at the military

base. Defendants failed to produce the purse or its

contents, and disagreed among themselves as to

whether the contents had been tested for contraband.

OOO EE EEE LL

43a

See Docket entries 123, 136, 139, 140, 146, in App.

197-198. These pleadings were not included ix

Applewhite's Supplemental Appendix because the

existence of contraband was not put at issue in

Defendants' motion for summary judgment. The order

denying this motion is the only order on appeal. App

164. This Court in its Opinion, however, jumps to the

assumption that Applewhite is guilty until proven

innocent of possessing "contraband." Further, it

makes possession of this "contraband" the basis of its

Opinion on a summary judgment motion, thereby

depriving Applewhite of the opportunity to have a trial

on the merits. This is contrary to law. F. R. Civ. P.

56; Austin.

10. A pre-trial order was entered in the

action on February 18, 1992. App. 149-160.

a. The pre-trial order stated that

discovery had been completed and that the matter was

set for trial on March 9, 1992. App. 156 and 159.

44a

b. The pre-trial order described the

uncontroverted facts which had been established by

admissions in the pleadings or by stipulations of

counsel as follows:

On August 1, 1986, members of the

United States Air Force placed under

arrest and physically restrained Plaintiff,

Carol J. Applewhite, a United States

military dependent. Plaintiff was

handcuffed and searched and her

personal property was seized, along with

property of the United States government

in Plaintiff's possession. Plaintiff was

removed without her consent from the

place of her arrest to Kirtland Air Force

Base, Albuquerque, New Mexico, a United

States military reservation, where

Plaintiff resided. Civilian authorities

were contacted. All employees involved in

the reverse sting operation were United

States military personnel on active duty.

App. 151-152. Defendants' statement of the facts in

their Brief in Chief does not go beyond this statement

except to mention that plaintiff was wearing a Postal

Service uniform at the time, that military personnel

reported the incident to the Postal Service and that

Plaintiff's husband was court martialed.

45a

11. Defendants' second motion for summary

judgment was denied by order of the District Court on

March 19, 1992. App. 179.

12. This Court's Opinion was entered June 9,

1993 reversing the order of the District Court and

remanding the action for entry of summary judgment

in favor of Ross, McBride, and Faulkner.

13. This Court's Opinion correctly stated that

any material factual issues were to be resolved in

favor of Mrs. Applewhite. Opinion at p. 4. Austin.

However, the Opinion utterly fails to follow its own

rule.

14. Specifically, this Court's Opinion

improperly recites the following allegedly "undisputed

facts" which were not set forth in either the pre-trial

order or the Defendants’ Brief in Chief because they

are disputed facts which cannot be resolved in a

summary judgment proceeding.

46a

a. "The OSI agents were instructed that

any civilian that came on the scene and became

involved in the operation could be detained until that

person could be turned over to local authorities."

Opinion at 1, note 2.

What Defendants actually alleged was that "the

OSI had to coordinate the civilian's arrest with

members of the Albuquerque Police Department."

App. 25. This was based upon the deposition of

Michael Savage who said that "we could detain

civilians, who became parties to or participated ica

operation, until such time as they could be turned over

to civil authorities." App. 39. This was challenged by

Applewhite because Defendant McBride had stated

that he knew he had no authority to arrest civilians,

Defendant Ross had stated that he had no jurisdiction

over civilians, and the OSI reservist who was supposed

to be coordinating with the Albuquerque Police

47a

Department testified that he was not, in fact,

coordinating with the APD. App. 102-103.

b. "Airman Applewhite asked a woman

undercover agent for marijuana saying ‘Let me check

with Carol and see if she's interested in buying

cocaine.” Opinion at 1.

This comes from the testimony of Katherine

McKenzie Filipovich, who later admitted that Mrs.

Applewhite did not say that she was interested in

purchasing any drugs for her own use. App. 79-80.

Defendants’ statement of undisputed fact was that

Katherine McKenzie Filipovich "posed as the

informant's girlfriend, and had a quantity of drugs for

sale as the ‘bait’ in the operation.” App. 26.

Applewhite did not challenge that Katherine

McKenzie Filipovich posed as the informants'

girlfriend and had no reason to believe Filipovich's

testimony would be used to make her into a

participant in the drug sale. Defendants admitted in

48a

their reply that the facts concerning Applewhite's

participation in the drug sale were disputed. App.

164.

c. "Mrs. Aeahenhiin has acknowledged

that she was aware her husband's marijuana purchase

was going on at a time she was in the same room in

the apartment." Opinion at 2.

What Applewhite said was "They were doing

some sort of an exchange as I was coming through,

and that is when people came from all directions, it

seems." App. 133. Applewhite clearly stated that she

walked into the living room, saw her husband making

a purchase and was immediately assaulted by the OSI

officers. App. 132-133.

d. "During the pat-down search a

partially-filled syringe with a hypodermic needle

which had been in her knee-high stocking fell out or

she pushed it out onto the floor. The search also

revealed amphetamines in her purse." Opinion at 2.

49a

Applewhite testified that "I don't know how many

people grabbed me and held me like spread-eagled but

standing, if you know what I mean, so that I couldn't

get away." App. 135. The defendants asserted in

their claim of disputed facts of the case in the pretrial

order that,

The pat-down search of Plaintiff

revealed that she had concealed a

partially filled, freshly used hypodermic

needle and syringe in her knee high

stocking....A search of Plaintiff's purse

revealed...two paper bindles containing

methamphetamines.

App. 150-152. These are not undisputed facts. See

uncontroverted facts in pretrial order at App. 151-152

restated at 10B above. This is defendants‘ defense

and absolutely denied by plaintiff.

The contents of the hypodermic syringe were not

identified, and Defendants have failed to produce the -

purse or its contents.

50a

e. "That search revealed her possession

of a partially-filled hypodermic needle in her stocking,

and amphetamines in her handbag." Opinion at 6.

The defendants asserted this proposition in

their claim of disputed facts in the pretrial order. See

14d above. App. 150-151. Defendants have failed to

produce the purse or its contents and the contents of

the hypodermic syringe were not been [sic] identified.

f. "...and the contraband thereafter found

on her person." Opinion at 8.

The defendants asserted this proposition in

their claim of disputed facts in the pretrial order. See

14d above. App. 150-151. Defendants have failed to

produce physical evidence of the existence of any

contraband.

g. "Mrs. Applewhite's husband, not the

: i _ military, was responsible for the involvement of his

civilian wife. This being established on the

5 ‘endinputed facts on this record." Opinion at 7.

‘¢ Pot te. :

i eee

5la

Even Defendants stated that the role of Mrs.

Applewhite in the drug sale and the circumstances

surrounding her presence at the "reverse sting" were

disputed facts which could not be resolved in a

summary judgment. App. 164.

h. "She having been brought in to the

point of sale by her buyer husband, and the

contraband thereafter found on her person, it was

objectively reasonable for the agents to detain the

plaintiff somewhere long enough to inquire as to

whether civilian authorities had any interest in taking

over prosecution." Opinion at 7-8.

It is disputed as to whether Applewhite was

"brought in to the point of sale by her buyer husband,"

and it simply has not been established that defendants

found "contraband" on her person. The defendants

asserted this in their claim of disputed facts in the

pre-trial order. See 14d above. App. 150-151.

52a

15. The Opinion states that it was reasonable

for the military police te remove a civilian "somewhere

while the Albuquerque Police were contacted to see if

they would take over this civilian intruder/participant

in the military ‘'sting.”” Opinion at 6. Further, the

military police "were not required to let her go ...

neither were they required to hold her in the ‘sting’

apartment or in a car while waiting for an answer

from the Albuquerque Police Department." Opinion at

6. First, it is disputed whether Applewhite was a

"intruder/participant” in the sting or merely an

innocent bystander. Second, this Court's Opinion cites

no authority in support of the proposition that the

military can "remove" a civilian anywhere. Third, this

Court's Opinion fails to place any limits on where the

military can “remove” a civilian to, i.e., strand her in

the desert, fly her to Columbia, place her in a

concentration camp. The possibilities are endless and,

53a

according to this Court's Opinion, all perfectly

constitutional.

16. Finally, this Court's Opinion resolves the

real issue in this appeal, which is the constitutional

limitations on military involvement in the arrest and

detention of civilians, in a manner so inclusive of

military intrusion into civilian affairs as to threaten

the safety and security of the entire civilian public.

This is inconsistent with the limits established in

Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985) and

800 F.2d 812 (8th Cir. 1986).

This Court should grant a rehearing en banc of

its Opinion of June 9, 1993, because the Opinion

improperly resolves disputed facts in favor of the

movant in a summary judgment proceeding, and

because the Opinion fails to place any rational limits

on the military's authority to "remove" civilians who

become entangled with their off-base activities. The

present Opinion is based upon disputed facts which

ae

54a

have not been tested by a trial on the merits and

grants unintentionally broad powers to military

authorities to "remove" civilians who get in the way of

off-base narcotics enforcement activities. This Court

should reconsider its holdings.

WHEREFORE Petitioner requests a rehearing

en banc to properly review the facts of this case as

required by law, and to determine the appropriate

limits on the arrest and detention of civilians by

military officials engaged in off-base law enforcement

activities and whatever further relief this court deems

just and proper.

JOHN R. POLK

Attorney for Plaintiff-Appellee

United New Mexico Bank Building

55a

CERTIFICATE OF SERVICE

I hereby certify that on this 15th of July, 1993,

I served the foregoing Petition for Rehearing and

Suggestion for Rehearing En Banc for the Appellants

Randall L. Faulkner, Leonard Ross and William E.

McBride and Appellee's Appendix upon the opposing

party by causing the appropriate number of copies to

be mailed via U.S. mail, postage prepaid, upon:

HOWARD S. SCHER, ESQ.

Attorney, Appellate Staff

Civil Division Room 3343

Department of Justice

Washington, D.C. 20530

NINA PELLETIER, ESQ.

Trial Attorney, Torts Branch

U.S. Department of Justice

Post Office Box 7146

Benjamin Franklin Station

Washington, D.C. 20044

JOHN R. POLK

Attorney for Plaintiff/Appellee