# Opposition Brief — Reeves v. Churchich (No. 07-466) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1553%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2007 ## Text 3 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.” 3 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. + 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. 6 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. 7 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. 8 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. 3 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. 10 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 11 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1553%3A2. Public record. Not legal advice.