Opposition Brief — Salgado v. Rosales

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_. 1 Sapmene Cont, 08.

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No. 01-1819 AUG 12 2002 |

ee

Jn The

Supreme Court of the Anited States

¢

RICK SALGADO, et al.,

Petitioners,

v.

MIGUEL ROSALES,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

¢

JOE KEILP*

JOE KEILP, P.C.

1440 East Washington #100

Phoenix, Arizona 85034

(602) 252-0100

PATRICIA A. GITRE

111 West Monroe #1650

Phoenix, Arizona 85003

(602) 254-8333

Attorneys for Respondent

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Are police officers entitled to qualified immunity when

they ambush, without effective warning, a man running

down a street with a gun from an area where several shots

were fired?

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TABLE OF CONTENTS |

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QUESTION PRESENTED..............:c::ccesesseeeessereeserees i |

TABLE OF AUTHORITIES ..............ccceseeeeeeereneeeeeeees iii

STATEMENT OF THE CASE.............cccseseeceeeeeeeseeeees 1

REASONS FOR DENYING THE PETITION............ 3

I. THE COURT CORRECTLY APPLIED THE

GRAHAM /GARNER DEADLY FORCE TEST

TO THE FACTS OF THIS CASE.............::0008 4

Il THE NINTH CIRCUIT CORRECTLY AP-

PLIED THE SECOND PRONG OF SAU-

CUBR oa aevevsaaseicassascsssataneneatasiameaniniantenmuanentes 7

CONCLUSION .........ccccocccsccescssscesccescnccccssecssccescsssoss 10

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ill

TABLE OF AUTHORITIES

Page

CASES

Allen v. City of Portland, 73 F.3d 232 (9th Cir. 1995) ........ 5

Anderson v. Creighton, 483 U.S. 635 (1987)..........:::++++ 7,8

Beck v. State of Ohio, 379 U.S. 89 (1964) ........:ssceeereeereeeees 5

Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002)...........20000++ 8

Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001)........... 5

Graham v. Connor, 490 U.S. 386 (1989) ........::::ceeeeereees 4,9

Saucier v. Katz, 553 U.S. 194 (2001) ...........seseseeeeees 4, 7,8,9

Tennessee v. Garner, 471 U.S. 1 (1985) ........:ceeeeeeeeeees 3,5

Wong Sun v. United States, 371 U.S. 471 Ei scnsssthconnanns 5

1

STATEMENT OF THE CASE

Respondent accepts Petitioners’ statement of the

procedural posture of the case, but rejects their charac-

terizations of the decision of the Ninth Circuit Court of

Appeals.

Factual Background

The facts, viewed in the light most favorable to the

Respondent, the non-moving party below, are:

Petitioners, two off-duty Phoenix Police Officers, while

working as private security guards at night in a restau-

rant parking lot in a high-crime area, heard a series of

gunshots coming from an area about a block away. Shortly

thereafter, they observed Respondent running in their

direction at a jogging pace across a vacant lot. As Respon-

dent stopped and waited for traffic to clear a street he had

to cross, Petitioners decided, for tactical advantage, to

conceal themselves behind parked cars and wait until

Respondent had gone slightly past them before initiating a

confrontation. As Respondent ran past them down the

center of the street, one of the Petitioners shouted, “Stop,

Phoenix Police,” or similar words, and Petitioners immedi-

ately unleashed a fusillade of bullets at Respondent's back.

Petitioner Salgado fired six times, rapid-fire, striking

Respondent in the back of the elbow and behind the knee.

Petitioner Lopez fired twice. Respondent was struck a

third time from behind in the kidney area, but the bullet

passed through his body and was not recovered, so which

officer fired it is unknown.

The only justification for the shooting ever expressed

by Petitioners at any time, in any of their many inconsis-

tent sworn and unsworn statements, was that Respondent

had turned and raised his weapon as if to fire at them.

Petitioners conceded that, with respect to the gunshots

they had heard, they didn’t know whether Respondent was

a victim (which he was), @ perpetrator or uninvolved; that,

prior to Respondent's alleged assault on the Petitioners, he .

was not a suspect in any crime and they did not consider

him a fleeing felon; that running down a street in Phoenix

with an unconcealed pistol in hand is not a crime.

Seeking to avoid the factual dispute that would defeat

their qualified immunity claim, Petitioners conceded for

the purpose of their motion that Respondent had not

turned and raised his gun toward them.’ In so doing, they

substitute a hypothetical rationale for their conduct in

place of the asserted factual one they have testified to

repeatedly.

Several factual assertions made by Petitioners merit

clarification:

© At the time they shot Respondent in the back, Peti-

tioners did not know that the gunfire they heard came

from a drive-by shooting as opposed to being, for ex-

ample, random or celebratory, or whether it was gang-

related, or that it was directed at a party taking place

in a parking lot outside the home of Respondent's

mother.

' By conceding this point, Petitioners avoid the Court’s examina-

tion of the internal contradictions of their own testimony and the

physical evidence that is wholly inconsistent with Petitioners’ version of

the events.

3

© There is no evidence that the other two individuals

whom Petitioners observed running were, or appeared

to be, “companions” of Respondent.

¢ There is no evidence that Petitioners perceived Re-

spondent to be “in apparent pursuit of another”.

¢ Despite repeated references in the petition, there is no

evidence that Respondent was “fleeing” before the ver-

bal warning to stop.

* While Respondent heard the verbal warning to stop,

the hail of police bullets immediately struck him, leav-

ing him no time to react to the warning.

® Whether or not he intended to stop was unknown to

Petitioners and, in any event, they did not wait to find

out what Respondent’s intentions were before shooting

him down.

® There is no evidence on the record that Respondent

posed even “a general threat to the community” much

less a significant or specified threat to the officers or

others.

*

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REASONS FOR DENYING THE PETITION

Petitioners contend that their petition should be

granted for the following reasons: (1) the application of the

qualified immunity doctrine to deadly force actions “is

wildly inconsistent within and without the Ninth Circuit”

(Pet. at 9); (2) the Ninth Circuit, by deciding the Garner

question against Petitioners in this case erroneously and

automatically denied qualified immunity (Pet. at 7);

(3) the Ninth Circuit relied on Petitioners’ subjective

beliefs for its qualified immunity analysis (Pet. at 8-9),

rather than examining this case from the viewpoints of

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reasonable officers on the scene (Pet. at 11). While Peti-

tioners’ “Question Presented” posits a violation of the

second prong of the two-part test enunciated in Saucier v.

Katz, 553 U.S. 194 (2001), namely, whether the law gov-

erning the officers’ conduct was clearly established, their

argument deals almost entirely with the first prong —

whether the force used was excessive to begin with. The

argument, which relies on Petitioners’ version of facts

which are in dispute, and on facts which were neither

known nor apparent to Petitioners, is hopelessly muddled.

None of Petitioners’ reasons justify the granting of

this petition. First, the Ninth Circuit issued its unpub-

lished memorandum after application of the two part

Saucier test. Second, the Ninth Circuit’s decision is not in

conflict with this Court's precedent or the decisions of

other circuits. Further review is unwarranted.

I. THE COURT CORRECTLY APPLIED THE

GRAHAM/GARNER DEADLY FORCE TEST TO

THE FACTS OF THIS CASE

In Saucier, this Court instructed lower courts deciding

summary judgment motions based on qualified immunity

to consider “this threshold question: Taken in the light

most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitu-

tional right?” 533 U.S. at 201.

Under the Fourth Amendment, police may use only

such force as is objectively reasonable in light of the facts

or circumstances confronting them. Graham v. Connor,

490 U.S. 386, 397 (1989). An officer’s use of deadly force is

reasonable only if “the officer has probable cause to believe

that the suspect poses 4 significant threat of death or

ou

serious physical injury to the officer or others.” Tennessee

y. Garner, 471 U.S. 1, 3 (1985). The reasonableness of the

force used to effect a particular seizure is determined by

“careful[ly] balancing ... the nature and quality of the

intrusion on the individual's Fourth Amendment interests’

against the countervailing governmental interests at

stake.” Graham, 490 U.S. at 396, quoting Garner, 471 US.

1. The force applied must be balanced against the need for

that force.

Petitioners rely on information that became known to

them after the incident to provide probable cause for

shooting Respondent in the back. It is well settled law that

probable cause must exist “at the moment the arrest was

made”; it cannot be established by evidence made known

to the police after the arrest is made. Wong Sun v. United

States, 371 U.S. 471, 482 (1963); Beck v. State of Ohio, 379

U.S. 89, 91 (1964); Allen v. City of Portland, 73 F.3d 232,

236 (9th Cir. 1995).

In this case, Respondent was running down the street

with a gun, away from an area where gunshots were

heard. There is no evidence that Respondent was a fleeing

felon, a suspect of anything or that any other person was

in potential danger at that moment in time. Even if

Petitioners perceived this as a potentially dangerous

situation, they were not free to gun down the Respondent

to end it. See Deorle v. Rutherford, 272 F3d 1272, 1281

(9th Cir. 2001) (“A desire to resolve quickly a potentially

dangerous situation is not the type of governmental

interest that, standing alone, justifies the use of force that —

may cause serious injury. There must be other significant

circumstances that warrant the use of such a degree of

force at the time it is used.”).

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Petitioners concealed themselves from Respondent’s

view, one yelled, “Stop, Phoenix Police,” and they immedi-

ately began shooting at Respondent. It is undisputed that

the shooting was either simultaneous with the warning or

came immediately thereafter, which essentially means

there was no warning at all. As the facts play out, this was

an ambush by two officers from concealed positions upon

Respondent who was running down a street away from the

officers’ location when he was shot in the back.

It bears repeating that Petitioners did not shoot a

suspected fleeing felon. They shot, they say, someone who

was about to shoot them. Petitioners should not be able to

avail themselves of a qualified immunity defense by

cherry-picking the facts. If it were established that Re-

spondent appeared to be trying to shoot them, they would

clearly be entitled to qualified immunity even if he were

not, in fact, trying to do that. But Petitioners cannot

sterilize the facts and eliminate their stated reason for

shooting, ignore the fact that no time at all elapsed be-

tween the command to stop and the gunshots and ignore

the facts that they did not know whether he was victim or

perpetrator and did not, in fact, believe that he was a

suspect (i.e., fleeing felon).

Petitioners asserted in testimony that they only fired

in self-defense when Respondent aimed his gun at them, a

disputed fact. They adamantly maintained that they

would not have fired otherwise, that they did not believe

that he was a fleeing felon, that running with a gun is not

a crime in Arizona. The first of these assertions is aban-

doned for purposes of the motion. The rest, claim Petition-

ers, are irrelevant. By layering fiction upon fiction we

must eventually reach the anomalous conclusion that

police may back-shoot anyone that some hypothetical

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reasonable officer might have thought was a fleeing felon,

though the officers involved in fact, did not.

Petitioners attempt to enlarge the proscription

against inquiring into an officer’s motives or intent to

encompass as well what the officer knew or observed. The

objective reasonableness test is designed to protect officers

from liability for acting on the basis of reasonable mis-

takes of fact. The Ninth Circuit rightly looked to their own

statements to determine what information the officers had

and whether they acted upon such a mistake. The first

prong of Saucier is met.

Il. THE NINTH CIRCUIT CORRECTLY APPLIED

THE SECOND PRONG OF SAUCIER

Just as the first prong of the Saucier test protects

officers from liability for reasonable mistakes of fact, the

second protects them from reasonable mistakes regarding

the legality of their actions. “An officer 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.” Saucier, 533 U.S. at

205.

Therefore, the second question the court must ask is

whether “‘the contours of the right [were] sufficiently clear

that a reasonable official would understand that what he

is doing violates that right.’” Saucier, 533 U.S. at 202

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The clearly established “inquiry . . . must be undertaken in

light of the specific context of the case, not as a broad

general proposition ...” Id., at 201, and with regard to the

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law at the time of the alleged violations. See Anderson,

483 U.S. at 639. “The question is what the officer reason-

ably understood his powers and responsibilities to be,

when he acted, under clearly established standards.” |

Saucier, 533 U.S. at 208. ami

At this point, the futility of indulging in Petitioners’

factual “concession” that Respondent did not turn and aim

at them becomes clear. Under the “true” facts that they

themselves insist upon in testimony, Petitioners had no

misunderstanding at all of their powers and responsibili-

ties: had Respondent not tried to take aim at them, they

say quite correctly, they had no right to fire, and would not

have fired, at him; since he did, they further say, they had

every right to shoot. This is, of course, a correct under-

standing of the law, not a mistaken understanding, and

the second prong of the Saucier test becomes irrelevant.

Yet the Court is asked to ignore both their correct under-

standing and their stated reason for shooting, in order to

conjure up a hypothetical reasonable officer to ratify

conduct that they steadfastly maintain did not occur.

The relevant dispositive inquiry is 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. An officer’s entitlement to qualified immunity

depends not on his subjective beliefs but rather on “the

objective (albeit fact-specific) question whether a reason-

able officer could have believed [the relevant conduct] to

be lawful, in light of clearly established law and the

information the . . . officers possessed.” Anderson, 483 U.S.

at 64; Clem v. Corbeau, 284 F.3d 543, 554 (4th Cir. 2002).

The Court must consider the facts from the perspective of

a reasonable officer on the scene, and avoid judging the

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officer’s conduct with the “20/20 vision of hindsight.”

Graham at 396, 397.

While it is true that the Court should not delve into

an officer’s motives or intentions this does not mean that

the Court cannot consider or must disregard the officers’

perception of the circumstances at the scene. The Ninth

Circuit did nothing more nor less than this in looking

again to Petitioners’ own admissions to determine whether

they had a reasonably mistaken belief as to the legality of

shooting the Respondent in the back.

No reasonable officer could ever conclude that shoot-

ing an individual, suspected of nothing, in the back with-

out warning under the circumstances here presented “was

within the bounds of appropriate police responses.” Sau-

cier, 533 U.S. at 201. Qualified immunity was rightfully

denied these Petitioners based on the facts presented and

the application of the law.

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CONCLUSION

The Ninth Circuit’s Memorandum decision in this case

fully comports with this Court's relevant decisions. More-

over, “A petition for writ of certiorari is rarely granted

when the asserted error consists of erroneous factual

findings or the misapplication of a properly stated rule of

law.” Rule 10 of the Supreme Court. The Petition should

be denied.

Respectfully submitted,

JOE KEILP

JOE KEILP, P.C.

1440 East Washington #100

Phoenix, Arizona 85034

(602) 252-0100

Attorney for Respondent