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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1190

## Text

93-708

No. y 1333

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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

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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;

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IT IS FURTHER ORDERED that Defendants’

Motion in Limine is DENIED.

/s/ Santiago E. Campos

UNITED STATES DISTRICT JUDGE

3la
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0711%3A1. Public record. Not legal advice.