Opposition Brief — Reeves v. Churchich (No. 07-466)

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No. 07-466

UrriUr OF THE CLERK

SUPREME COURT. U.S.

|

|

Iu The

Supreme Court of the Anited States

¢

ALICIA REEVES and ASHLEE REEVES,

Petitioners,

Vs.

ALEX CHURCHICH, KEVIN JONES,

DAVID WIERMAN, C. HOUSLEY,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

*

BRIEF IN OPPOSITION

S

LOHRA L. MILLER

District Attorney for Salt

Lake County

T. J. TSAKALOS

Division Administrator

NICHOLAS M. D’ALESANDRO*

Deputy District Attorney

Counsel for Respondent Churchich

2001 South State Street, $3700

Salt Lake City, Utah 84190-1200

Telephone: (801) 468-3421

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-65

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

To conform to the record and the relevant facts,

the question presented should be restated as fol-

lows: Under the Fourth Amendment, is a 14-year-

old girl unreasonably seized in circumstances

where she sees a police officer point a firearm at

her through her open bedroom window, and hears

a voice telling her to get on the ground, and in-

stead of complying, she runs from the room?

Does insertion of a rifle into a private home by a

police officer, acting without a warrant or exigent

circumstances, constitute an unlawful entry

(a.k.a. an unreasonable search) in violation of the

Fourth Amendment?

Do officers seize non-suspects within the mean-

ing of the Fourth Amendment when they

threaten them with loaded firearms?

Can police officers’ actions be considered objec-

tively reasonable when, acting without warrant

or exigent circumstances, they threaten indi-

viduals they know are non-suspects in and about

their home with loaded firearms?

TABLE OF CONTENTS

Page

GPUOStIONS Presented.............cccccccsscsccccscssvcescccscseseses

Table of Authorities

Opinions Below

Basis for Jurisdiction

Statement of the Case

Introduction

Summary of the Facts

Summary of the Proceedings

Reasons for Denying the Writ

Introduction

I.

Petitioners’ Encounter with Respondent

Officers Does Not Require Construction of

a New Fourth Amendment Framework

Regarding Seizures Because Supreme

Court Precedent Was Properly Applied

Petitioners’ Encounter with Respondent

Officers Does Not Require Construction of

a New Fourth Amendment Framework

Regarding Searches Because Supreme

Court Precedent Was Properly Applied

Petitioners’ Claim that the Lower Courts

Erred in Granting Qualified Immunity Is

Premised on Constitutional Violations that

Did Not Occur

1

TABLE OF CONTENTS — Continued

Page

IV. The Lower Courts Correctly Determined

that the Respondent Officers’ Actions Were

Objectively Reasonable

Conclusion

TABLE OF AUTHORITIES

CASES

Bella v. Chamberlain, 24 F.3d 1251 (10th

Cir.1994), cert. denied, 513 U.S. 1109 (1995)

Brigham City v. Stuart, __. US. ___, 126 S.Ct.

1943 (2006)

California v. Hodari D., 499 U.S. 621 (1991)......10, 11

Kyllo v. United States, 533 U.S. 27 (2001)................. 14

Michigan v. Summers, 452 U.S. 692 (1981)

Payton v. New York, 445 U.S. 573 (1980)

Silverman v. United States, 365 U.S. 505 (1961)

United States v. Harris, 313 F.3d 1228 (10th

Cir.2002), cert. denied, 537 U.S. 1244 (2003)

United States v. Karo, 468 U.S. 705 (1984),

reh’g denied, 468 U.S. 1250 (1984)

United States v. Knotts, 460 U.S. 276 (1983)

STATUTES

28 U.S.C. § 1254(1)

1

OPINIONS BELOW

The published opinion of the United States Court

of Appeals for the Tenth Circuit is reported at 484

F.3d 1244 (10th Cir.2007). The published opinion of

the United States District Court for the District of

Utah is reported at 331 F.Supp.2d 1347 (D.Utah

2004).

BASIS FOR JURISDICTION

A unanimous decision affirming the district court

judgment was entered by the Tenth Circuit on April

24, 2007. No petition for rehearing or for a rehearing

en banc was filed. Petitioners invoke this Court’s

jurisdiction under 28 U.S.C. § 1254(1).

4

STATEMENT OF THE CASE

Introduction

Petitioners, mother Alicia and daughter Ashlee,

complain that they suffered emotional injury because

law enforcement officers looking for a potentially

armed and violent assault suspect, came to their

duplex, momentarily pointed guns at them, and

repeatedly ordered the mother back into her apart-

ment. They also allege that during this encounter a

sheriff’s detective briefly inserted the muzzle of his

rifle into an open, burglar-barred window of their

apartment.

Summary of the Facts

The officers’ encounter with Petitioners occurred

after Respondent Churchich, a Salt Lake County

sheriff’s detective, developed probable cause to arrest

a suspect on suspicion of assaulting his estranged

wife and violating a protective order. Appx. 258-59, as

corrected, Supp. Appx. 005.’ The suspect’s son in-

formed Churchich that the suspect might be leaving

town, had access to firearms, and could be armed.

Appx. 249, 258. The son also told Churchich that the

suspect might be staying with relatives in the up-

stairs half of a duplex in Salt Lake City. Appx. 248,

251.

On the afternoon of June 21, 2000, Churchich

went to the duplex, without a warrant, hoping to

apprehend the suspect by obtaining the relatives’

permission to search their apartment. Appx. 248-49,

278. Churchich asked for assistance from the Salt

Lake City Police Department. Appx. 248. Respondent

officers Jones, Wierman, and Housley were among

the city officers who responded. Appx. 284, 323, 387.

Respondents, other officers, and the suspect’s son

met at a rally point near the duplex. Appx. 249, 309.

Churchich told the officers at the rally point that he

had probable cause to make an arrest without a

warrant and that the suspect had access to firearms

' References are to the Appendix or Supplemental Appendix

for the briefs in the Tenth Circuit, hereafter, “Appx.” or “Supp.

Appx.”

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and could be armed. Appx. 259, 279. Churchich

subsequently confirmed that the suspect’s vehicle was

parked in the driveway of the duplex. Appx. 250.

Jones told the other officers at the rally point

that the target residence was in the upstairs portion

of the duplex. Appx. 278. It was decided that Jones,

Housley, and another city officer would go up to the

door of the upstairs apartment since they were in

uniform.” Appx. 250, 279. Wierman, other city offi-

cers, and Churchich would cover the outside of the

building. Appx. 251, 318-19. All the officers had

sidearms and Churchich and Wierman were also

armed with rifles. Appx. 323-25. The officers ap-

proached the building with their handguns or rifles at

their sides or at a “low ready” position. Appx. 253,

287, 388.

The downstairs half of the duplex was occupied

by Alicia Reeves and her then 14-year-old daughter,

Ashlee. Appx. 201, 423, 536. The downstairs apart-

ment is partially below ground level. Appx. 222.

There are burglar bars on every window, but no

screens. Appx. 221-22, 470. The main entry door of

the duplex is located in the front of the building.

Appx. 204. Behind the unlocked entry door there is a

flat landing with stairs to the left leading down

to the front door of the downstairs apartment, and

* Churchich was the only officer in civilian attire. Appx.

209, 251.

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stairs .o the right leading up to the upstairs apart-

ment. Appx. 205-06, 390.

Alicia and Ashlee arrived home at about 3:30

p.m. Appx. 204. Ashlee went in to take a shower while

her mother napped on the living room couch. Appx.

204, 469. Ten or fifteen minutes later, Ashlee walked

naked into her bedroom. Appx. 469, 537. She heard

footsteps outside her bedroom window and someone

say “hold it” or “hold it right there.” Appx. 469-70.

She believed the people outside her window were

police officers but was not sure. Appx. 469. Although

Wierman testified that he pointed his rifle at move-

ment in the window he regarded as a possible threat,

Ashlee did not see any guns pointing at her while she

was in her bedroom. Appx. 338, 470. Ashlee ran from

the room and woke her mother. Appx. 206, 469. Alicia

told her to go and get dressed in Alicia’s bedroom.

Appx. 206.

Ashlee went to Alicia’s bedroom to get dressed.

Appx. 469. The blinds in the bedroom window were

up, the window was open, but barred, and foliage

partially covered the window. Appx. 469-70, 537.

A neighbor saw an officer, presumably Churchich,

stick his rifle into the window of Alicia’s bedroom.

Appx. 530.° Ashlee saw a gun barrel pointing down

through the window, even with, or just past, the

* Churchich denied pointing a gun at, or through, any

windows of the duplex but accepted this allegation as true for

purposes of summary judgment. Appx. 252.

inside window ledge. Appx. 469-71. The barrel was

moving around, and at some point, it was pointed at

her.’ Appx. 448, 470. Ashlee heard a male voice say,

“Get down on the ground.” Appx. 469-70. Ashlee said

nothing, reached up, shut the blinds, ran from her

mother’s bedroom, and tried again to rouse her

mother. Appx. 469.

Ashlee, after running from her mother’s bedroom,

did not return to either bedroom, but stayed on the

couch at her mother’s instruction. Appx. 471. At one

point, Ashlee went to the front door of her apartment

and heard a female voice tell her mother to get back

in her house and her mother refuse to do so. Appx.

472. Ashlee remained inside her apartment through-

out the incident as instructed by her mother, and

never spoke with any of the officers that day. Appx.

471, 477.

Meanwhile, because she heard her daughter

yelling and her dog barking, Alicia got up from the

couch and went out her apartment door. Appx. 206-

07. She went up the stairs to the landing to let the

“ In a deposition, Ashlee referred to the rifle as “following”

her, but in a subsequent affidavit, Ashlee merely stated that the

rifle pointed at her. There is no evidence that Churchich “aimed”

the rifle at Ashlee.

> Although Petitioners still refer to this conduct as an

“assault,” they did not appeal the dismissal of their state law

claims, including assault.

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dog outside.° Appx. 207. Alicia picked up her dog and

opened the main door. Appx. 207. When Alicia began

to push open the screen door to go outside, an officer,

presumably Jones, turned around and pointed a

pistol at her face. Appx. 207-08, 279. Alicia pushed

the gun away, told the officer not to point the gun at

her, and asked what was going on. Appx. 207, 211.

Alicia then heard her daughter scream from down-

stairs and returned to her apartment. Appx. 211.

Through her windows, Alicia saw officers in uniform

outside her apartment, some looking in the windows.

Appx. 207, 209, 222.

Alicia then went back outside, saw Jones again,

and again asked what was happening. Appx. 207.

Jones still did not answer her. Appx. 207. Jones asked

where she lived and she told him, “I live downstairs.”

Appx. 207.

Alicia returned to her apartment for the second

time, but soon heard a commotion outside. Appx. 207.

Alicia went out and saw officers pulling the female

resident of the upstairs apartment out of the apart-

ment. Appx. 207, 210. Alicia saw an officer in plain-

clothes, presumably Churchich, standing on the

* Contrary to statements made in their Petition, p.4-5,

Alicia testified that she was concerned about her dog’s barking,

not about “who was molesting her daughter and to put a stop to

it.” Appx. 207. Alicia wanted the officers to stop because she did

not understand what they were doing and they were scaring her

daughter, not that they had the “wrong home” or were “assault-

ing and menacing her daughter.” Appx. 211.

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landing inside the main door of the duplex. Appx. 210.

Churchich was carrying a rifle pointed straight down

at his side. Appx. 210. Alicia was below him on the

stairs. Appx. 212. Churchich lifted his rifle up about

three feet, pointed it in Alicia’s direction and told her

to go back inside her apartment.’ Appx. 210, 212.

Alicia told Churchich that she was not going back

into her apartment. Appx. 207. She said she was

afraid and wanted to know what was happening.

Appx. 207.

Housley heard Alicia “arguing” with the officer on

the landing and concluded that Alicia was interfering

and had refused to return to her apartment as in-

structed. Appx. 394. Housley told Alicia that it was

none of her business and to get back inside her

apartment. Appx. 209.° Alicia refused. Appx. 209.

Housley then told Alicia “to get back inside your

apartment, bitch,”” and Alicia responded, “I am not

leaving. I want to know what’s going on.” Appx. 209.

" Churchich denied speaking to, or even seeing, Alicia at the

duplex that day, but accepted this allegation as true for purposes

of summary judgment. Appx. 254.

* Bystanders were to be kept out of the hallway based on

information that the suspect could be armed. Appx. 289. Despite

Petitioners’ assertion, p.3, that the officers “did nothing to notify,

warn, or otherwise protect” them, Alicia ignored repeated

instructions to return to her apartment for her own safety. Appx

207-12.

° Housley denied using the expletive. Appr. 391.

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Alicia did not go back inside her apartment

immediately, but remained there for a few minutes.

Appx. 212. Churchich remained on the landing for

only a few seconds before going upstairs. Appx. 253.

Churchich did not locate the suspect on the

premises that day.” Appx. 257. During the 30-45

minute duration of the incident, Alicia went in and

out of her apartment, at will, at least four times.

Appx. 213. None of the officers ever touched Alicia,

nor did they ever set foot into the downstairs apart-

ment. Appx. 208, 477. Alicia refused to return to her

apartment despite the officers’ instructions and

repeatedly told the officers that she was not leaving.

Appx. 207, 209-10. Alicia testified that the officers

would not answer her questions, but just told her “to

get back in my house and mind my own business.”

Appx. 208.

Petitioners claim to have suffered emotional

injury from the encounter but no physical injury.

Supp. Appx. 233.

Summary of the Proceedings

Of the original defendants, two of the three

county officers and four of the seven city officers were

dismissed from the suit by stipulation. The remaining

defendants moved for summary judgment on the

The suspect was later apprehended by a SWAT team in

Las Vegas, Nevada. Appx. 258.

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basis of qualified immunity, which the district court

granted. Plaintiffs appealed to the Tenth Circuit, which

affirmed the judgment of the district court.

The Tenth Circuit held that the momentary

pointing of firearms at Petitioners did not constitute

a seizure because neither Petitioner submitted to the

officers’ show of authority. The circuit court also held

that the intrusion of the rifle muzzle into the window

did not constitute a search because no private infor-

mation was conveyed by the act. Even if a seizure

occurred, it further held, the seizure was objectively

reasonable in the totality of circumstances.

e

REASONS TO DENY THE WRIT

Introduction

The decision of the Tenth Circuit is correct, does

not conflict with any decision of this Court, and does

not demonstrate any conflict among the federal

circuit courts, state courts of last resort, or between

the federal and state courts. Review of the decision is

unwarranted because the constitutional analysis

established by prior decisions of this Court was

properly applied and any “new analytical framework”

suggested by Petitioners would be more confusing

than helpful. The questions presented are further

diminished by the somewhat unusual factual circum-

stances underlying them, which are not likely to

recur with any regularity.

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Petitioners’ Encounter with Respondent

Officers Does Not Require Construction

of a New Fourth Amendment Framework

Regarding Seizures Because Supreme

Court Precedent Was Properly Applied.

Although proper application of this Court’s

precedent leads to the conciusion that Petitioners did

not suffer an unreasonable seizure, Petitioners argue

that common sense dictates that their Fourth

Amendment rights were violated.

In arriving at this conclusion, Petitioners dispute

the Tenth Circuit’s application of California v. Hodari

D., 499 U.S. 621 (1991), in determining when a

seizure occurs. Petitioners argue that the analysis of

Hodari D. cannot be applied in their case because

they were not “fleeing suspects.” Rather, they urge

the Court to construct a new analytical framework

that would, in essence, distinguish between the

seizures of “suspects” and “non-suspects” and expand

Fourth Amendment violations to include attempted

seizures by police.

This Court clearly held in Hodari D. that the

Fourth Amendment proscribes unreasonable seizures,

not unreasonable attempted seizures. /d. at 1550 n.2.

A seizure occurs by either physical force or by sub-

mission to a show of authority. Hodari D., 499 U.S. at

626-27. Petitioners, who were never physically

touched by the officers, and who never submitted to

the officers’ show of authority, seek to exclude them-

selves from the law of Hodari D. by assuming that

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the Respondents “knew” they were not suspects and

therefore, should never have pointed weapons at

them."

Such an argument rejects the “narrow view” of

“seizure” that this Court took in Hodari D. and favors

return to “the broader view adopted by this Court

almost 25 years ago.” Id. at 632.

As the Tenth Circuit correctly noted, until an

individual’s relationship to a suspect can be ascer-

tained, police officers may reasonably defer making

assumptions about the status of an individual. How-

ever, even assuming that such distinctions can be

readily made when police are attempting to appre-

hend a potentially armed and violent suspect, Hodari

D. already provides clear guidance when a seizure

has or has not occurred.

This Court has denied certiorari in other Tenth

Circuit cases where Hodari D. has been applied to

resolve seizure issues involving individuals who have

failed to submit to a show of authority by police. See,

e.g., Bella v. Chamberlain, 24 F.3d 1251 (10th

Cir.1994), cert. denied, 513 U.S. 1109 (1995) (helicop-

ter pilot who was shot at by police while being forced

' Petitioners argue in contradictory fashion that despite the

fact that they were minding their own business in their home,

Alicia went out to put a stop to what was going on. Petitioners do

not dispute that they failed to submit to the officers’ show of

authority. The Tenth Circuit opined that their subjective motiva-

tions are irrelevant under Fourth Amendment analysis, citing

Brigham City v. Stuart, U.S. ___, 126 S.Ct. 1943, 1948 (2006)

12

at gunpoint to facilitate a prison escape was not

seized); United States v. Harris, 313 F.3d 1228 (10th

Cir.2002), cert. denied, 537 U.S. 1244 (2003) (pedes-

trian who was asked for identification and ordered to

remove his hands from his pockets was not seized

until officer physically removed pedestrian’s hands

from pockets).

A new Fourth Amendment framework dependent

on an arbitrary classification of the persons affected

would result in a complex and unworkable rule that

would more likely confuse, and not guide, police

officers in their conduct. Officers would first have to

decide in which category to place an individual before

exercising the “unquestioned command of the situa-

tion” necessary in order to minimize the risk of harm

to themselves and others. See Michigan v. Summers,

452 U.S. 692, 702-03 (1981).

Furthermore, the question presented is undercut

by the fact that the factual circumstances of which

Petitioners complain are unlikely to occur with any

regularity. In most cases, officers who point firearms

at individuals with the intention of seizing them

would take additional measures to effect the seizure

if the individuals did not submit to that show of

authority. Not only did the Respondents take no

additional steps to bring about Petitioners’ submis-

sion, their orders to Alicia to return to her apartment

demonstrate their lack of intent to seize her.

13

Petitioners’ Encounter with Respondent

Officers Does Not Require Construction

of a New Fourth Amendment Framework

Regarding Searches Because Supreme

Court Precedent Was Properly Applied.

Petitioners claim that the Tenth Circuit ignored

the plain purpose and meaning of the Fourth

Amendment in holding that Respondents never

subjected Petitioners to a search. Petitioners seek

review in order to expand the breadth of the term

“search” to include common law trespass violations by

police officers, based on an unusual circumstance in

which an officer is alleged to have briefly inserted a

rifle muzzle into the burglar-barred, open window of a

home.

While the circumstances of the “search” are

somewhat novel, Supreme Court precedent was

properly applied by the Tenth Circuit in resolving the

issue. As the Tenth Circuit noted (and Petitioners do

not dispute), the officers were lawfully present in the

yard of the apartment building. Neither Churchich

nor any part of his body entered the home. Although

the window was barred, it was open and unscreened

and the blinds were up. The rifle was not a surveil-

lance device nor was such a device attached to it. The

insertion of the rifle muzzle simply did not permit the

officer to ascertain any information which he did not

already know. And despite the intrusion of the object

through the threshold of the window, there was no

“unlawful entry” into the home (which the burglar

bars would have thwarted) because no information

14

was obtained and there was no attempt to gather any.

The core of Fourth Amendment protection is privacy.

See Payton v. New York, 445 U.S. 573, 590 (1980).

While the insertion of an object that neither is de-

signed to convey information nor is used in such a

manner as to obtain information may constitute a

trespass, it is not a privacy violation. This Court has

already “decoupled violation of a person’s Fourth

Amendment rights from trespassory violation of his

property.” Kyllo v. United States, 533 U.S. 27, 32 (2001).

The Tenth Circuit, having determined initially

that the intrusion of the rifle muzzle did not consti-

tute a seizure, correctly determined that it also did

not constitute a search. In applying Silverman uv.

United States, 365 U.S. 505 (1961), United States v.

Knotts, 460 U.S. 276 (1983), United States v. Karo,

468 U.S. 705 (1984), Brigham City v. Stuart, ___ U.S.

__, 126 S.Ct. 1943 (2006), and other cases, the circuit

court correctly held that an act not conveying any

private information about the home, its contents, or

its occupants could not be interpreted as a “search.”

Moreover, the circumstances of the alleged

“search” are unlikely to be repeated with any regular-

ity. As the Tenth Circuit noted, the use of weapons is

typically associated with seizures, not searches, and

firearms are not information gathering devices.

Since no new analytical framework is necessary

and similar incidents are unlikely to occur with any

regularity, further review of the question presented is

unwarranted.

15

III. Petitioners’ Claim that the Lower Courts

Erred in Granting Qualified Immunity Is

Premised on Constitutional Violations

that Did Not Occur.

Petitioners claim error in the decision to grant

Respondents qualified immunity. That claim is only

viable, however, if Petitioners were subjected to an

unconstitutional search or seizure. Since the Tenth

Circuit determined that Petitioners were subjected to

neither a search nor an unreasonable seizure, and

those determinations properly applied Supreme

Court precedent, there was no underlying constitu-

tional violation.

IV. The Lower Courts Correctly Determined

that the Respondent Officers’ Actions

Were Objectively Reasonable.

Even if a seizure occurred, there is no error for

this Court to correct. The actions of the officers were

objectively reasonable in the totality of circum-

stances.

Given the potential for gunplay, it was reason-

able for the officers to have their firearms ready for

immediate use and to order Alicia to return to her

apartment for her own safety. The focus of the inves-

tigation was a potentially armed and violent assault

suspect, not the Petitioners. Nonetheless, the officers

were not familiar with the Petitioners and had no

knowledge of their relationship to the suspect, if any.

Any pointing of firearms at the Petitioners was brief

16

and ended when any perceived threat was resolved.

While it was unfortunate that an officer’s frustration

at Alicia’s noncompliance may have caused the officer

to utter an expletive, that conduct would not in itself

render unreasonable the otherwise reasonable actions

of the officers.

CONCLUSION

For the reasons stated above, the petition for a

writ of certiorari should be denied.

Respectfully submitted,

LOHRA L. MILLER

District Attorney for Salt

Lake County

T. J. TSAKALOS

Division Administrator

NICHOLAS M. D’ALESANDRO*

Deputy District Attorney

Counsel for Respondent Churchich

2001 South State Street, S3700

Salt Lake City, Utah 84190-1200

Telephone: (801) 468-3421

*Counsel of Record