Opposition Brief — Parks v. Pomeroy

No. 04-1268

In The

Supreme Court of the Gnited States

v

TAMARA JEAN PARKS, individually

and as Trustee for the heirs and

next-of-kin of Perry Parks,

Petitioner,

vs.

MICHAEL POMEROY, in his

individual capé:ity as an officer of the

Woodbury Police Department,

Respondent.

a

7

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

4

Vv

RESPONDENT POMEROY’S BRIEF

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ry

ak

JOSEPH E. FLYNN* (#165712)

PIERRE N. REGNIER (#90232)

JARDINE, LOGAN & O’BRIEN, P.L.L.P.

8519 Eagle Point Blvd., Suite 100

Lake Elmo, MN 55042-8624

651-290-6500

Attorneys for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Eighth Circuit Court of Appeals properly held

that Officer Pomeroy was entitled to qualified immunity

where, given the state of the law at the time and the

particular facts of this case, Pomeroy did not violate a

clearly established constitutional right.

ii

TABLE OF CONTENTS

Page

QUESTION PRR Ramee iaiisistscetssssdstnkenstansnetcosetenss i

TABLE OF AUTRIO IES Betts icisisscsvnccdshentetcsassssentersiese iii

JURIST IS. iocnininhahicenkdeieadinnmciniaameastcedidaiecatenata 1

STATEMENT OF THE CASE ..............cccccesscsecsssseeees 1

REASONS FOR DENYING THE WRIT...;................ 10

A. Parks’ argument that the Eighth Circuit

applied a subjective standard instead of an

objective standard to the qualified immunity

analysis is not supported by reading the

Eighth Cimewit GRA scsscosccscscsnsesscsescsscssesene 10

B. The decision below does not conflict with

otinen Chew GUURIE icisccistnatticdtaitestissncidchdxdensss 23

CONCLUSION .....:.:s:sssensbensiaapnasaenensemitinsinesteesensonbnes 25

TABLE OF AUTHORITIES

Page

FEDERAL AND STATE COURT CASES

Anderson v. Creighton, 483 U.S. 635, 107 S. Ct.

as hashiesteentcnubianind 14, 24

Anderson v. Russell, 247 F.3d 125 (4th Cir. 2001)........... 20

Billingsley v. City of Omaha, 277 F.3d 990 (8th Cir.

Iola deaisindibaatbbneninienbindelins 15

Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002)........... 16

Boyd v. Baeppler, 215 F.3d 594 (6th Cir. 2000)................. 20

Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993) ...........0..0.000.. 18

Cowan v. Breen, 352 F.3d 756 (2nd Cir. 2003)............ 23, 24

Craighead v. Lee, 399 F.3d 954 (8th Cir. 20085)......... pnw 24

Flores v. City of Palacios, 381 F.3d 391 (5th Cir.

aaah ee oe a ssladtsdibsadiandaduadionsnuneniies 24

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727

a cree 2 U2 sssansesdedonsehoenes 24

Krueger v. Fuhr, 991 F.2d 435 (8th Cir. 1993)...... 15, 22, 23

Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092

ates rahe SE IE ae aN or Oe 14

McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994)......... 20

Milstead v. Kibler, 91 F. Supp. 2d 895 (W.D. Va.

2000), aff’d, 243 F.3d 157 (4th Cir. 2001), cert.

as ecneninababouiansinenonet 20

Nelson v. County of Wright, 162 F.3d 986 (8th Cir.

RESTA EAI: SCN nO eee 16, 17, 21

Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991)......... 15, 16

Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151

SINE cl sddiisdshilnbindesdeasbbabipanbeniibendnntanedbiensiniaatsndanabies passim

iv

TABLE OF AUTHORITIES — Continued

Page

Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789

SEITE ics lie eiselasitaeasibesanaediechnibaaeaselcdskeslaiuladialauieinhamaiesneaindtaivesmaice 17

Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th

oy SEE daihcancsncchsuncietcecpiaatakaanasuabaiinaatiasaitaiadlactaatans 15

Wilkins v. Scarrott, 350 F.3d 949 (9th Cir. 2003),

ES Gt la HEINE ois tokeicdcanctlsnancniotinanditannnidansdanncetes 23

Willingham v. Loughnan, 261 F.3d 1178 (11th Cir.

2001), vacated and remanded by 123 S. Ct. 68

(2002), reinstated by 321 F.3d 1299 (11th Cir.

2003), cert. denied (Oct. 6, 2003)................. 15, 17, 19, 20

RULES OF THE SUPREME COURT OF THE UNITED STATES

BI ie Giessnicscinsuicsanivasistentslacbintcntibbianst uaabiednapioomaidaedidandiiaa tanaanabornes 1

UNITED STATES CONSTITUTION

aa ecatumniaebanenee 10, 13, 21

ee

tee fen ARENT,

JURISDICTION

Rule 10 of the Rules of the Supreme Court of the

United States provides that this Court may grant a

petition for certiorari only for compelling reasons. Accord-

ing to Rule 10, compelling reasons may be found if there is

a conflict of authority between another court of appeals or

state court of last resort on the same issue or if the deci-

sion reflects a far departure from the usual course of

judicial proceedings or if the decision presents an impor-

tant question of federal law that has not been but should

be settled by this Court.

Petitioner has not set forth an adequate basis to

justify the exercise of the Court’s discretionary jurisdic-

tion. Petitioner’s argument that the Court of Appeals

improperly transformed the objective test in Saucier uv.

Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), into a subjec-

tive test is not supported by any studied review of the

Eighth Circuit’s analysis of the second step of the qualified

immunity analysis. Petitioner has failed to set forth a

sufficient basis for review by this Court. Further, for the

reasons explained below, there was no error in the Eighth

Circuit’s decisien in this case.

,%

_

STATEMENT OF THE CASE

Officer Michael Pomeroy sets forth the following

uncontroverted facts from the record in supplement to the

facts set forth in the Memoranda and Orders of the lower

courts that Pomeroy also accepts as uncontroverted.

On the evening of June 3, 2000, at 9:45 p.m., Tamara

Parks called 911 Emergency Dispatch reporting, “My

2

husband’s drunk and he’s getting very violent.” Tamara

Parks and her husband, decedent Perry Parks, had gone to

the Sunset Bar at 5:30 that afternoon. Before leaving for

the bar, Tamara observed Perry Parks carrying a beer can.

While at the Sunset Bar, Perry Parks consumed three 22-

ounce mugs of beer and part of Tamara Parks’ second 22-

ounce mug. Tamara and Perry Parks had a disagreement

in the bar. Perry Parks was affected by the alcohol so

Tamara Parks drove home. They left the bar around 9:20

or 9:25 p.m. and arrived at their home in Woodbury at 9:30

p.m.

Upon arriving home at 2704 Horseshoe Lane in

Woodbury, a one-sided argument ensued with Perry Parks

screaming and swearing at Tamara Parks. Perry Parks

was yelling to Tamara Parks, “Fuck you, you're a bitch.

I’m sick of this” and repeated this many times. Perry

Parks had never sworn at Tamara Parks and had never

screamed or hollered like that before. Tamara Parks

believed that Perry Parks was getting very violent. Perry

Parks came toward her and slammed his hand on the

counter. Tamara Parks then grabLed the phone to call 911.

Tamara Parks told Perry Parks that if he didn’t calm down

she was going to call and have him removed. Perry Parks

told her to go ahead.

While this was going on in the house, Tamara Parks’

twe minor daughters were present. One of the daughters

was crying. At one point, one of the daughters told Perry

Parks that he was drunk.

At 9:45 p.m., Tamara Parks called 911 telling the 911

dispatcher that Perry Parks was getting very violent.

Tamara Perks asked the dispatcher to send somebody to

2704 Horseshoe Lane. Tamara Parks further told the 911

3

dispatcher, “It’s a domestic” and that “My husband’s drunk

and he’s getting very violent.” (Perry Parks was later

determined to have a blood alcohol content of .16).

The 911 dispatcher asked Tamara Parks whether it

was physical and she responded, “Well not yet, but it’s

going to get there.” Tamara Parks called for police officers

to come and remove Perry Parks. Tamara Parks told the

dispatcher, “Can you take him away?” While Tamara

Parks was talking to the dispatcher, she told Perry Parks,

“Get away from me” in response to Perry Parks coming

toward her. Tamara Parks was backing down the hall and

was fearful that Perry Parks was coming after her.

Tamara Parks then told the 911 dispatcher, “Just come

and get him out of here.”

At the time that Tamara Parks called 911 Emergency

Dispatch to remove her husband who was getting very

violent, Officers Jeff Gottstein and Michael Pomeroy were

on duty as patrol officers for the City of Woodbury. Gott-

stein had been a police officer with the City of Woodbury

since 1994. Pomeroy had been a police officer since 1988

and had worked as a patrolman for the City of Woodbury

since 1994.

Dispatch called for Woodbury police officers to respond

to a domestic at 2704 Horseshoe Lane. Officer Gottstein

who was designated as “665” responded. The dispatcher

then came back and said “665, 2704 Horseshoe Lane.

Husband/wife. Male is DK. No weapons. It’s not physical

at this point, but it sounds like it might get there.” Dis-

patch further indicated that the name was Parks. Dis-

patch then asked for a squad to assist and Officer Pomeroy

responded he would be en route to the incident. The

dispatcher informed the officers that it was a husband and

4

wife domestic, that the husband was drunk and children

were involved.

According to Tamara Parks, after Officers Gottstein

and Pomeroy entered the residence, they ended up in the

kitchen with Perry Parks. Both officers were in full uni-

form. Perry Parks was standing in the corner of the

kitchen near the kitchen sink. The children were upstairs.

One of the officers asked Perry Parks what was going

on and received no response. As this was reported as a

domestic dispute and Officers Pomeroy and Gottstein had

not had an opportunity to assess what was going on, for

officer safety reasons, they needed to control the move-

ments of the persons in the house to make sure that the

officers and the persons inside the house were s:fe. Offi-

cers Pomeroy and Gottstein observed knives in the kitchen

on a counter. The officers overheard Perry Parks make a

comment about the knives. Officer Gottstein was con-

cerned about Parks’ access to the knives. Due to Perry

Parks’ increasing agitation, the officers attempted to

convince Parks to go into another room and keep him

away from the knives.

One of the officers allegedly then said, “We’re going to

get you out of here.” From the upstairs of the residence,

Tamara Parks’ daughter could hear the police officers say,

“Sir” a couple of times and then heard Perry Parks say,

“Get out of my space. This is my house.” Perry Parks

refused to go with the officers. The shorter officer, Gott-

stein, grabbed Perry Parks by his left arm. Perry Parks

put up his arms to stop the officer like he was going to

push off. The shorter officer who held Perry Parks by the

left arm then “walked into [Parks’] hands.”

Officer Gottstein considered Perry Parks’ initial

movement to be an attempt to grab a knife from that area.

pe ORO GEC

5

Gottstein grabbed the two knives that he observed on the

counter and threw them into a laundry hallway area.

After Perry Parks put out his hands in a manner like

he was going to push off, Gottstein walked into Perry

Parks’ hands and Gottstein lost his balance and took a

step back. The 5'5" 170-pound Officer Gottstein then came

forward and grabbed the 5'10" 220-pound Perry Parks by

the throat with his left hand.

According to Tamara Parks, Perry Parks then flew

back into the counter and Parks then came forward away

from the counter and scuffling ensued. Perry Parks moved

toward the middle of the kitchen. Officer Gottstein stepped

back and Perry Parks stepped forward. When Perry Parks

stepped forward, Gottstein now had his left hand on Parks’

left shoulder. While his left hand was on Perry Parks’ left

shoulder, Gottstein took out his Oleoresin Capsicum

(“OC”) spray with his right hand and sprayed. Officers

Pomeroy and Gottstein are trained to be able to continue

working in an OC contaminated area.

Perry Parks raised his arms and flailed his arms.

Perry Parks and Officer Gottstein were struggling and

moving toward the middle of the kitchen and the refrig-

erator. As Perry Parks moved toward the refrigerator,

Officer Gottstein was trying to get Parks’ left arm while

continuing to spray the OC. Officer Pomeroy was right

next to Gottstein and, xlong with Gottstein, backed into a

rear entryway into the kitchen. Gottstein ended up bent

over ‘with Perry Parks’ arm around Gottstein’s neck in a

headlock. Gottstein was trying to maintain his footing

6

and, at some point, Parks came down on him causing

Gottstein to go down to the ground as well.

Officer Gottstein’s duty holster was located on his

duty belt on the right side of his hip. In the duty holster

was Officer Gottstein’s service weapon, a .40 caliber

Beretta. When Officer Gottstein went down to the ground

he tried to drop his right side to protect his firearm, but

ended up flat on his stomach with the right side of his face

pinned against the floor. Thus, Gottstein could not see his

holster.

Officer Gottstein was on the floor on his stomach with

his feet by the refrigerator. Perry Parks was the opposite

direction of Gottstein and was facing the refrigerator.

Officer Pomeroy was by the desk and counter.

Perry Parks was on his hands and knees and Parks’

head was pushed into the officer’s right shoulder and

Officer Gottstein’s head was partially underneath Parks.

Gottstein’s hand was extended out in front of Gottstein’s

head and went around Perry Parks’ left arm and was

holding Parks’ shirt. When asked whether Perry Parks

was holding Gottstein down on the floor, Tamara Parks’

response was that only Perry could answer that. Obvi-

ously, Gottstein could also answer that and testified that

Perry Parks was physically forcing him to the floor. Gott-

stein tried to get out from under Parks without success.

While flat on his stomach, Officer Gottstein felt his belt

and duty weapon being moved. Gottstein believed that

Perry Parks had his hand on his weapon. Gottstein struck

the wrist to get Parks’ hand to release and pulled at his

fingers. According to Tamara Parks, Gottstein yelled, “I

think he’s going for my gun.” The transcript of the radio

7

transmission evidences that Gottstein was reporting “He’s

trying to get my weapon! I need help here!”

Another police officer responding to the officer’s

urgent call for assistance was en route when he heard this

statement by Gottstein over the radio and described it as a

cry for help by someone who was very, very scared. The

officer thought by the time he got there, Gottstein would

be dead.

In response to Gottstein yelling that Parks was

attempting to take his weapon, Pomeroy looked over and

observed Gottstein’s hand on the grip of his gun and Perry

Parks’ hand was also on the grip of the gun, covering part

of Gottstein’s hand and the gun was partially withdrawn

from the holster.

Based upon the information given to Officer Pomeroy

by his partner, Officer Jeff Gottstein, Officer Pomeroy

perceived that there was an immediate danger of death or

great bodily harm to his partner and Officer Pomeroy

believed that authorized him to use deadly force.

In response to Officer Gottstein yelling that Perry

Parks was attempting to take away Officer Gottstein’s

service weapon, Pomeroy pulled out his service weapon

and put the gun into the back of Perry Parks’ right shoul-

der. Officer Pomeroy had considerable fear that Perry

Parks was going to gain control of the gun and use the gun

against them.

When Tamara Parks witnessed Officer Pomeroy pull

out his service weapon in response to Gottstein yelling

that Perry Parks was attempting to take Gottstein’s

service weapon, she screamed, “Perry, Perry” and ran up

behind Perry, grabbed his shoulders and tried to pull

8

Perry Parks apart from the officer. She told Officer

Pomeroy not to shoot. Gottstein was still prone on his

stomach. Pomeroy warned Perry Parks, “Don’t go for the

gun.” Pomeroy yelled at Perry Parks believing that his

partner was telling him what was going on. Perry Parks

responded, “I’m not. I can’t see.” At that point in time,

Tamara Parks looked, and saw that Perry’s left hand was

on the floor and the officer’s gun was not being touched.

Tamara Parks testified, “And that’s when I looked, and

Perry’s hand was on the floor and the officer’s gun was not

being touched.” She could not see Parks’ right hand. At

that time, Gottstein’s right hand was underneath Perry

Parks, but she could not see whether he had a hold of

Parks at all. Tamara Parks also did not know where

Officer Gottstein’s left arm and hand were at that point. At

no point did Tamara Parks dispute Officer Gottstein’s

assertion that while Gottstein was on the floor with Parks

during the short intense struggle, at some point Perry

Parks had his hand on Gottstein’s gun.

Officer Pomeroy was kneeling by Perry Parks’ right

shoulder and Officer Gottstein’s left shoulder. Tamara

Parks does not know what Pomeroy was doing, but noticed

that he had his gun in his left hand and she looked down

the gun barrel. Tamara Parks then screamed and backed

up to the front of the steps. This was further back than her

original location. Pomeroy was on his knees with his chest

lying on Parks. Pomeroy attempted to fire his service

weapon that he had pressed into Perry Parks’ side.

Tamara Parks heard a click. The gun did not fire. Pomeroy

then attempted a malfunction drill and pulled the trigger

a second time, but the weapon still did not fire. Pomeroy

again performed the malfunction drill. Tamara Parks

9

heard a shot. Gottstein was still prone on the floor on his

stomach when the shot was fired.

Officer Gottstein believed there was a high level of

threat from the time he first felt a hand on +* weapon to

the time that the situation ended. Gottstein . vlieved that

the threat level was equally high whether or not he had

his hand on the primary grip position because that could

have changed in a millisecond.

When Pomeroy heard Gottstein yell that Parks was

going for his gun, Pomeroy believed that his partner was

telling him what was going on. Pomervy saw no diminish-

ment in the threat from the point at which he heard

Gottstein say that Parks had his gun until the time Parks

was shot. Pomeroy believed that the threat was increasing

because the longer the struggle went on, the more tired

Gottstein would become and he would be less and less able

to maintain control to prevent Perry Parks from gaining

control of the handgun.

After the shot was fired, Perry Parks came up to his

knees, and then fell back. Perry Parks died a short time

later as a result of a single gunshot wound. The entire

incident from the time the officers entered the house until

the shot was fired was three to four minutes.

ee

7

10

REASONS FOR DENYING THE WRIT

A. Parks’ argument that the Eighth Circuit applied

a subjective standard instead of an objective

standard to the qualified immunity analysis is

not supported by reading the Eighth Circuit

opinion.

In ruling on a qualified immunity issue, the first step

is to determine whether the government official’s conduct

violated a constitutional right. The Court’s next step is to

ask whether such right was clearly established. Saucier v.

Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001).

The Eighth Circuit opinion assumed a constitutional

violation and then proceeded to the next step of the quali-

fied immunity analysis asking whether the right was

clearly established in accord with Saucier v. Katz, 533 U.S.

194, 201, 121 S. Ct. 2151, 2156 (2001).' The Eighth Circuit

in Parks recognized that its inquiry does not end at as-

suming that at this threshold stage Parks may be able to

establish a constitutional violation. The Court recognized

that the next sequential step is to ask whether the right

was clearly established. “This inquiry remains distinct

from the analysis of the excessive force claim.” (Citation

* Respondent disagrees with the majority opinion’s conclusion that

at this threshold stage, Parks may be able to prove that Pomeroy

violated Parks’ Fourth Amendment rights. For the reasons set forth in

the concurring opinion by Judge Colloton, Respondent agrees that it

was not even necessary to proceed to the second step in the qualified

immunity analysis as, under the first step, no constitutional violation

occurred. Because Pomeroy is responding to Parks’ arguments concern-

ing the application of the second step of the qualified immunity

analysis, Pomeroy does not directly address the first step. the existence

of a constitutional violation.

11

omitted). (App. 13). The Parks opinion goes on to cite

Saucier:

The qualified immunity inquiry .. . has a further

dimension. The concern of the qualified immu-

nity inquiry is to acknowledge that reasonable

mistakes can be made as to the legal constraints

on particular police conduct. It is sometimes dif-

ficult for an officer to determine how the relevant

legal doctrine, here excessive force, will apply to

the factual situation the officer confronts. An of-

ficer might correctly perceive all of the relevant

facts, but have a mistaken understanding as to

whether a particular amount of force is legal in

those circumstances. If the officer’s mistake as to

what the law requires is reasonable, however, the

officer is entitled to the immunity defense. Id. at

205, 121 S. Ct. 2151 (emphasis added).

(App. 13, 14).

Parks argues that in applying the second step to

determine whether the right was clearly established, the

Eighth Circuit Court of Appeals improperly transformed

Saucier’s objective standards into a subjective test. Parks’

argument is not supported by the plain language of the

opinion in which the Eighth Circuit makes repeated

reference to objective reasonableness and frames the issue

as an objective inquiry into whether “a reasonable officer

in Pomeroy’s position would have understood that what he

was doing violated the law.” (App. 14).’ Such analysis is

entirely consistent with the dictates of the United States

Supreme Court in Saucier, “the relevant dispositive inquiry

in determining whether a right is clearly established is

? App. references Petitioner’s Appendix.

Le ST ee ee ne ee

12

whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202, 121 S. Ct. at 2156. The Court of

Appeals in Parks held:

Even if we assume that Pomeroy could see Parks’

left hand was on the floor at the time of the

shooting, it cannot be disputed that Gottstein’s

gun was nevertheless just inches from Parks’

hand. As in Nelson, the physical struggle be-

tween Parks and Gottstein was hostile and in-

tense, the circumstances were extremely volatile

and potentially deadly, and events were evolving

rapidly. Therefore, notwithstanding Plaintiff’s

citation of arguably contrary Fourth Amendment

cases, we hold, upon de novo review, that — given

the state of the law at the time and the particu-

lar facts of this case — Pomeroy did not violate a

clearly established constitutional right.

(App. 15-16) (Emphasis in original). It is important to note

that the Eighth Circuit obviously recognized the impor-

tance of analyzing the second step of the qualified immu-

nity analysis as to whether clearly established law was

violated because the Eighth Circuit opinion repeatedly

bolded the term “clearly established.” (App. 13, 16).

The Court in Parks further delineated its utilization of

an objective standard to conduct its qualified immunity

analysis:

In other words, we now ask, not whether plaintiff

may be able to establish a constitutional viola-

tion — but, rather, whether she may be able to es-

tablish a violation of a constitutional right of

which the contours were so defined at the time

of the shooting that a reasonable officer in

——— —

13

Pomeroy’s position would have understood that

what he was doing violated the law.

(App. 14).

Again, the Eighth Circuit’s analysis of the second

prong of the qualified immunity standard is wholly consis-

tent with the United States Supreme Court’s dictates in

Saucier.

Officers can have reasonable, but mistaken, be-

liefs as to the facts establishing the existence of

probable cause or exigent circumstances, for ex-

ample, in those situations the court will not hold

that they have violated the Constitution. Yet,

even if a court were to hold that the officer vio-

lated the Fourth Amendment by conducting an

unreasonable warrantless search, Anderson still

operates to grant officers immunity for reason-

able mistakes as to the legality of their actions.

The same analysis is applicable in excessive force

cases, where in addition to the deference officers

receive on the underlying constitutional claim,

qualified immunity can apply in the event the

mistaken belief was reasonable.

Saucier, 533 U.S. at 206, 121 S. Ct. at 2158-59.

Although Parks pays lip service to Saucier, Parks’

arguments actually appear to be in conformity with the

Ninth Circuit opinion in Saucier, which was resoundingly

rejected by the United States Supreme Court. Parks

argues that the Eighth Circuit’s presumption that Plaintiff

may be able to prove that Pomeroy violated Parks’ Fourth

Amendment rights, establishes unreasonable conduct that

prevents the application of qualified immunity on the

second step. Parks’ argument ignores the distinctive

nature of the second step. In Saucier, the Ninth Circuit

14

Court of Appeals held that the qualified immunity analysis

is so intertwined with the question whether the officer

used excessive force that qualified immunity and constitu-

tional violation should be treated as one question, to be

decided by the trier of fact. Saucier, 533 U.S. at 197, 203,

121 S. Ct. 2154, 2157. The Supreme Court in rejecting the

Ninth Circuit holding, emphasized in Saucier that the two

questions are not duplicative and must be addressed

separately. Id. In rejecting the Ninth Circuit’s attempted

fusion between the two questions, the Supreme Court in

Saucier stated that the approach cannot be reconciled with

Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034

(1987). Furthermore,

The approach the Court of Appeals adopted — to

deny summary judgment any time a material is-

sue of fact remains on the excessive force claim —

could undermine the goal of qualified immunity

to ‘avoid excessive disruption of government and

permit the resolution of many insubstantial

claims on summary judgment.’ Harlow v. Fitz-

gerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982).

If the law did not put the officer on notice that

his conduct would be clearly unlawful, summary

judgment based on qualified immunity is appro-

priate. See Malley v. Briggs, 475 U.S. 335, 341,

106 S. Ct. 1092 (1986) (qualified immunity pro-

tects ‘all but the plainly incompetent or those

who knowingly violate the law.’).

Saucier, 533 U.S. at 202, 121 S. Ct. at 2156, 2157. There-

fore, Petitioner improperly attempts to blur the first and

second steps in analyzing qualified immunity.

Parks then argues that because Perry Parks’ hand

was not on the officer’s service weapon immediately

preceding the shooting of Parks, that Parks did not pose a

15

deadly threat. Parks argues that such a belief by Pomeroy

would be a subjective mistake on Pomeroy’s part and not

comport with the required objective analysis. Parks

ignores that the Eighth Circuit in Parks considered this

fact in light of an objective standard as to whether an

officer confronting the actual situation encountered by

Officer Pomeroy could reasonably have a mistaken under-

standing as to whether a particular amount of force is

legal in those circumstances. The Eighth Circuit’s analysis

therefore examined Parks’ claim that Parks’ hand was not

on the gun at the moment of the shooting, and engaged in

the analysis required by Saucier to examine the specific

circumstances confronted by the officer in light of clearly

established law. That Parks did not have his hand on the

gun immediately preceding the shooting of Parks does not

mean that it was a violation of clearly established law for

an officer to protect the officer and others by use of deadly

force when the officer objectively had information that

moments earlier his fellow officer had indicated that the

subject had attempted to take away that officer’s gun and

the officer remained in a continuing struggle with the

subject. The cases cited by Pomeroy dictate that an officer

doesn’t have to wait until a gun is pointed at the officer

before the officer is entitled to take action. See, e.g.,

Billingsley v. City of Omaha, 277 F.3d 990 (8th Cir. 2002);

Willingham v. Loughnan, 321 F.3d 1299 (11th Cir. 2003);

Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir.

1998); Krueger v. Fuhr, 991 F.2d 435 (8th Cir. 1993).

In Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991), the

police officer ordered occupants inside the car to raise

their hands. When one occupant raised and lowered his

hands several times, an officer, believing that the man was

reaching for a gun that would place the officers in danger,

a -

Ee

16

shot him once in the head at a distance of approximately

10 feet. The Fifth Circuit determined the shooting, “was

reasonable and not excessive.” Jd. at 500. Reversing the

denial of summary judgment based on qualified immunity

to the individual officers, the Court explained, “Under

these circumstances, a reasonable officer could well fear

for his safety and that of others nearby.” Jd. at 501.

These cases and the other cases cited in Parks’ Briefs

establish that, when you examine the totality of the

circumstances, even though a subject may have been

unarmed at the moment deadly force was utilized, does

not mean that the subject did not pose an imminent threat

to the lives and safety of the officers and others. A post-

Saucier decision made the following holding applicable to

the case here:

Indeed, once Hennessey grabbed the barrel of

Detective Smith’s gun and tried to pry it from his

hand, a reasonable officer would infer a substan-

tial possibility that he was fighting for his life.

Maybe he could have hoped that Hennessey sim-

ply wanted to disarm him, not shoot him, but

that would have been a gamble. Under these cir-

cumstances, taking the facts alleged in the light

most favorable to Hennessey, Detective Smith

could have reasonably shot Hennessey even if

he had just pushed Hennessey back a few

feet.

Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir. 2002).

(Emphasis added).

Parks complains that the Eighth Circuit should not

have relied on the decision of Nelson v. County of Wright,

162 F.3d 986 (8th Cir. 1998), because Nelson was decided

three years before Saucier. Parks argues that post-Saucier,

ee

17

Nelson would have been decided under qualified immu-

nity’s first step, rather than deciding. as the Court in

Nelson did, that the defendant in Nelson was entitled to

qualified immunity because the conduct did not violate

clearly established law. Such argument by Parks not only

ignores the clear language of the Nelson decision which

held that the officer’s actions did not violate clearly estab-

lished law, but ignores that long before Saucier and

Nelson, the issue of whether the official’s conduct violated

a constitutional right was the threshold question.

A court required to rule upon the qualified im-

munity issue must consider, then, this threshold

question: Taken in the light most favorable to the

party asserting the inquiry, do the facts alleged

show the officer’s conduct violated a constitu-

tional right? This must be the initial inquiry.

Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct.

1789 (1991).

Saucier, 533 U.S. at 201, 121 S. Ct. at 2156.

Consequently, although the two-step qualified immu-

nity analysis was reaffirmed by the United States Su-

preme Court in Saucier, the two-step test had previously

been established as the test at least several years before

Nelson. Moreover, regardless of whether the Eighth

Circuit opinion in Nelson hinged on the first or second

prong of the qualified immunity analysis, the fact of the

matter is that the Eighth Circuit panel in Parks, in exam-

ining the legal principles set forth in Nelson and the

particular facts of this case, held that Pomeroy did not

violate a clearly established constitutional right. Numer-

ous other decisions also support the Court’s conclusion

that the actions of Pomeroy did not violate clearly estab-

lished law. For example, as in Willingham v. Loughnan,

18

261 F.3d 1178 (11th Cir. 2001), vacated and remanded by

123 S. Ct. 68 (2002), reinstated by 321 F.3d 1299 (11th Cir.

2003), cert. denied (Oct. 6, 2003), Officer Pomeroy shot an

individual whom the officer had reason to believe seconds

before had attempted to kill the officer. At the time Wil-

lingham was shot, she was standing unarmed in the door

to the kitchen where she had just moments before ob-

tained weapons with which she had tried to kill one of the

officers by throwing a knife at him and assaulted another

by throwing objects at him. Like Willingham, Parks was

neither compliant nor yielding to the officers and re-

mained physically engaged in a struggle with Officer

Gottstein from whem, moments before, Officer Pomeroy

had obtained information which any reasonable officer

would rely on, that is, information that a fellow officer’s

life was in imminent danger because a subject was at-

tempting to take away the fellow officer’s gun.’ Willing-

ham importantly recognizes that:

The principles and goals of the doctrine of quali-

fied immunity are particularly important in

cases like this one: Where police officers are con-

fronting an unpredictable and dangerous situa-

tion in which split-second decisions can make the

difference between life and death.

Id. at 1187.

From the vantage point of -n officer whose life is

jeopardized, a potential arrestee who is neither

physically subdued nor compliantly yielding re-

mains capable of generating surprise, aggression

* The Eighth Circuit has recognized that an officer may use deadly

force on reliance on information from other officers. See Cole v. Bone,

993 F.2d 1328 (8th Cir. 1993).

19

and death ... police officers cannot be expected

to delay or to second-guess decisions that may be

made in the heat of a dangerous confrontation

with a person engaged in violent criminal con-

duct.

Id. at 1186-87. The Eleventh Circuit therefore held that:

Under these circumstances — shooting plaintiff,

even if she was unarmed at the moment, did con-

stitute excessive force in violation of the Fourth

Amendment, the defendants are entitled to

qualified immunity.

Id. at 1187.

Even though Parks, like Willingham, did not have his

hand on a weapon at the moment he was shot, Pomeroy

would be entitled to qualified immunity based on the

following factors considered in Willingham:

1) plaintiff had just attempted to murder

one police officer and assault another (here, un-

disputedly, we have evidence that Officer Gott-

stein had communicated to Pomeroy and other

police officers through his radio mic that was ac-

tivated during the struggle, that Parks was at-

tempting to take his service weapon);

2) the subject was not under police control

(again, the Court’s recitation of facts, that Parks

) does not dispute, is that there was an ongoing

) struggle between Parks and the officers); and

| 3) the subject was close to a source of

weapons (again, it is undisputed that Parks, dur-

ing the struggle in which the District Court indi-

cates he was on top of Gottstein, was in close

proximity to a weapon).

20

Willingham, 261 F.3d at 1185. Here, Officer Pomeroy was

entitled to act on the perception that Parks had attempted

to obtain Officer Gottstein’s gun and continued to struggle

with the officers. See Anderson v. Russeil, 247 F.3d 125,

131 (4th Cir. 2001) citing McLenagan v. Karnes, 27 F.3d

1002, 1007 (4th Cir. 1994) (“We do not think it wise to

require a police officer, in all instances, to actually detect

the presence of an object in a suspect’s hands before firing

on him.”).

In Anderson, 247 F.3d at 130-31, the officer who fired

the weapon that shot the plaintiff was held to have rea-

sonably perceived the plaintiff to be armed. Officer

Pomeroy also had sound reason to believe that Parks was

attempting to get Officer Gottstein’s gun based on the

statements by Officer Gottstein. “Accordingly, because

Russell had sound reason to believe that Anderson was

armed, Russell acted reasonably by firing on Anderson as

a protective measure before directly observing a deadly

weapon.” Id. at 131. See also, Milstead v. Kibler, 91

F. Supp. 2d 895 (W.D. Va. 2000), aff’d, 243 F.3d 157 (4th

Cir. 2001), cert. denied (Oct. 1, 2001); Boyd v. Baeppler,

215 F.3d 594, 600 (6th Cir. 2000) (“That the defendants did

not see or hear Boyd fire the weapon does not affect

whether the police officers, acting reasonably under the

circumstances known to them, acted in defense of their

own safety and the safety of officers through the use of

deadly force.”).

The Eighth Circuit accepted Tamara Parks’ assertion

that she could see Perry Parks’ left hand on the floor at the

time he was shot and concluded as a matter of law, based

on the facts and circumstances confronting the officers,

and case law, that qualified immunity applied to bar

Parks’ claims. Those undisputed facts included:

21

1) Parks refusing to comply with the officers’ orders;

2) During the struggle between Parks an Gottstein,

Parks was on top of Gottstein facing the opposite direction;

3) During the struggle, Gottstein felt his duty belt

and service weapon being moved and believed that Perry

Parks had his hand on Gottstein’s weapon;

4) That Gottstein screamed that Parks was trying to

take the officer’s gun;

5) The radio transmission from the Parks’ residence

containing the statement by Gottstein screaming, “He’s

trying to get my weapon! I need help here!”:

6) Mrs. Parks did not claim that at no time during

the struggle did Mr. Parks have his hand on the gun;

7) Pomeroy saw Parks’ hand on the gun and felt

Parks hand on the gun earlier.

The Eighth Circuit panel recognized that even though

at the threshold stage Plaintiff may be able to prove a

constitutional violation, Pomeroy is entitled to qualified

immunity, “even if he wrongly, but reasonably, believed his

actions were lawful.” (App. 14). The Court recognized that

there were numerous Fourth Amendment excessive force

cases which stand for the proposition that a reasonably

objective police officer in Pomeroy’s position would have

believed that his actions were lawful. (App. 14). The Court

of Appeals stated that in light of Nelson,

... and other similar precedents, we cannot say

that, at the moment of Parks’s fatal shooting,

Pomeroy reasonably should have known that

what he was doing violated Parks’s constitutional

22 re

rights. In the present case, even if we assume

that Pomeroy could see Parks’s left hand on the

floor at the moment of the shooting, it cannot be

disputed that Gottstein’s gun was nevertheless

just inches from Parks’s hand. As in Nelson, the

physical struggle between Parks and Gottstein

was hostile and intense, the circumstances were

extremely volatile and potentially deadly, and

the events were evolving rapidly. Therefore, not-

withstanding plaintiff’s citation of arguably con-

trary Fourth Amendment cases, we hold, upon de

novo review, that — given the state of the law at

the time and the particular facts of this case —

Pomeroy did not violate a clearly established con-

stitutional right. “Qualified immunity operates

in this case . . . just as it does in others, to protect

officers from the sometimes ‘hazy border between

excessive and acceptable force’ and to ensure that

before they are subjected to suit, officers are on

notice that their conduct is unlawful.” Saucier v.

Katz, 533 U.S. at 206, 121 S. Ct. 2151 (internal

citation omitted).

(App. 15, 16). (Emphasis in original).

Parks next argues that because Parks was shot in the

high upper back, the Eighth Circuit decision utilized a

subjective standard, as, according to Parks’ argument,

shooting Parks in the back would be a violation of clearly

established law. Again, a reading of the plain language in

the Parks opinion reveals that the Court utilized an

objective test rather than a subjective one. Furthermore,

the placement of the shot was clearly found to be irrele-

vant. This was not a case where Officer Pomeroy alleged

that Parks was advancing toward him with a weapon.

Here, as in the Eighth Circuit decision of Krueger v. Fuhr,

991 F.2d 435 (8th Cir. 1993), “there is no evidence that

23

requires us to attribute special significance to the fact that

Officer Fuhr shot Krueger in the back.” Krueger, 991 F.2d

at 439. Similarly, Officer Pomeroy is not claiming that

Parks had been advancing on him when the shots were

fired, but rather was utilizing deadly force in response to

the objective information he received that Parks was

attempting to take Gottstein’s gun. Whether the use of

force resulted in a shot to Parks’ back or front has no

relevance to the use of deadly force in this case.

B. The decision below does not conflict with

other circuit courts.

The Parks decision does not conflict with decisions

from other circuit courts and, more importantly, does not

conflict with decisions by the United States Supreme

Court.

For the proposition that the Parks decision conflicts

with decisions from other circuit courts, Parks cites the

cases of Cowan v. Breen, 352 F.3d 756 (2nd Cir. 2003) and

Wilkins v. Scarrott, 350 F.3d 949 (9th Cir. 2003), cert.

denied (Oct. 4, 2004). Contrary to Wilkins, Pomeroy’s

entitlement to qualified immunity does not depend on the

resolutions of disputed issues of fact in his favor. Accepting

Parks’ version of the facts demonstrated that Pomeroy’s

decision to use deadly force to stop Parks was not in

violation of clearly established law.

Similarly, the Second Circuit decision of Cowan has no

relevance to the case at hand. Unlike Cowan, Pomeroy has

accepted the facts as alleged by Mrs. Parks. In Cowan, the

Court specifically found that the existence of a fact dispute

prevented the Court from proceeding on the issue of

qualified immunity:

24

Although Breen purports to rely only on the un-

disputed evidence in demonstrating that there

was no constitutional violation of Cooper’s rights,

his brief on appeal is replete with his own ver-

sion of the events.

Cowan, 352 F.3d at 762 (quotation omitted).

The Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005) and

Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004)

cases cited by Parks are inapposite to the present case as

neither Flores nor Craighead set forth principles relevant

to the issue here of determining whether the law, in the

circumstances faced by Officer Pomeroy, was clearly

established. As Saucier held, “this inquiry, it is vital to

note, must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Saucier, 533

U.S. at 194, 121S. Ct. 2156.

Furthermore, this is not a situation where guidance

and precedent are lacking to the circuit courts. The Su-

preme Court has issued guiding precedents on the issue of

the application of the qualified immunity standard in

several cases, including Saucier, 533 U.S. at 197, 203, 121

S. Ct. 2151 (2001); Anderson v. Creighton, 483 U.S. 635,

107 S. Ct. 3034 (1987); and Harlow v. Fitzgerald, 457 U.S.

800, 102 S. Ct. 2727 (1982), in addition to other Supreme

Court cases, and the Eighth Circuit’s analysis of the

second step of the qualified immunity analysis is not in

conflict with the rule of law set forth in those cases.

,

vy

CONCLUSION

The Eighth Circuit properly held that qualified

immunity bars Parks’ claim, as a reasonable officer could

have believed that the use of deadly force was not in

violation of clearly established law during this brief and

intense struggle in which Officer Pomeroy reasonably

believed that Parks attempted to take control of Officer —

Gottstein’s gun. Furthermore, Saucier holds that qualified

immunity applies even if Officer Pomeroy had a mistaken

understanding as to the amount of force that was legal

under the circumstances of this tense and rapidly evolving

struggle in which his fellow officer had indicated that

Parks was attempting to take away his service weapon.

Therefore, Officer Pomeroy respectfully requests that

Plaintiff’s Petition for Writ of Certiorari be denied. Parks

does not satisfy any of the criteria for exercise of the

Supreme Court’s discretionary review.

DATED: April 21,2005 Respectfully submitted,

JARDINE, LOGAN & O’BRIEN, P.L.L.P.

JOSEPH E. FLYNN (A.R. #165712)*

PIERRE N. REGNIER (A.R. #90232)

8519 Eagle Point Boulevard #100

Lake Elmo, MN 55042-8624

651-290-6500

Counsel for Respondent

*Counsel of Record