Amicus Curiae Brief — Steen v. Thompson

LO 9g

No. 92-209 ot € * 1992

In The

Supreme Court of the United States

October Term, 1992

.

MICHAEL STEEN,

Petitioner,

JERRI LYNN THOMPSON, etc. and

JOSEPH DESHETRES,

Respondents.

+

Petition For A Writ Of Certiorari

To The United States Court Of Appeals .

For The Ninth Circuit

+

BRIEF OF AMICI CURIAE

SONOMA COUNTY, CALIFORNIA AND

THE CITY OF OXNARD, CALIFORNIA,

IN SUPPORT OF PETITIONER MICHAEL STEEN

4

James P. Bortz, Esq. Law Offices oF MAYER

County Counsel & REEVES

County of Sonoma InvING Bercer, Esq.

575 Administration Drive Martin J. Mayer, Esq.

Santa Rosa, CA 95403 The Ocean Center Building

an 110 W. Ocean Blvd.,

Telephone: (707) 527-2421 Suite 707

Gary L. Gittic, Esq. Long Beach, CA 90802

City Attorney

City of Oxnard

300 W. Third Street

Oxnard, CA 93030

Telephone: (805) 385-7483

Telephone: (310) 590-8280

Attorneys for Amici Curiae

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

OR CALL COLLECT (402) 42-2831

TABLE OF CONTENTS

Page

prt Re tay 8 ay. re rrr ii

pe) at rere rrr er re 1

REASONS FOR GRANTING THE PETITION FOR

Pe. Te We ROE ie 5 ob AS AAS Scere e ene i

PRU TE WG BEE 568 eb 0% Win 4 0604 an kee eaee keen oa

RELEVANT LAW - QUALIFIED IMMUNITY....... 5

RELEVANT LAW - FOURTH AMENDMENT....... 7

APPLICATION OF RELEVANT LAW TO THE FACTS

oe ee ere ere eee ee ere rrr ee 9

es sl fe es ee rere Tete 12

ii

TABLE OF AUTHORITIES :

Page

Cases

Anderson v. Creighton, 483 U.S. 635, 640 (1987)........ 5

Auriemma v. Rice, 910 F.2d 1449, 1455 (7th Cir.

FOSQ) ws. cease n can veh oe es eres een ene En «5 7

Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir.) cert.

denied, 110 S. Ct. 101 (RRR iia cis esse eee recess 6

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert.

denied, 479 US. B00 COG indi cree eeee he eeeaees 5

Dartland v. Metropolitan Dade County, 866 F.2d

1321, 13523 (1 iy Cle Be eee hears 6

Ker v. California, 374 US. 23:47 9Ga Se rekeaascctaccs 4

Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir. 1989\.... 11

Malley v. Briggs, 475 U.S. 335, 341 (1986).......... 5, 10

Melton v. City of Oklahoma City, 879 F.2d 706, 729

(10th Cir. 1909)... 6s accdicaicedeeeense eases 5

Muhammad v. Wainright, 839 F.2d 1422, 1424 (11th

Cit. 1967) ....ckssccudae es peewee eee eee eens 7

Noyola v. Texas Dep't of Human Resources, 846 F.2d

1021, 1025 (Sth Cie: W068) os cntccSeecs cence ie eseee) 6

O'Connor v. Chicago Transit Authority, 778 F. Supp.

967, 974 (N.D. Ill. 1991) ...... SRR MEUEL DL Cae NRCS 6

Rakovich v. Wade, 850 F.2d 1180, 1213 (7th Cir.

1987)(en banc), cert. denied, 488 U.S. 968 (1988) ..... 6

Savidge v. Fincannon, 836 F.2d 898, 910 (5th Cir.

DOGS). «5 5 5:54. 0:06 0: 5 a ee 11

iii

TABLE OF AUTHORITIES - Continued

Page

United States v. Bruss, 309 F. Supp. 915, 921 (E.D.

RTC AS <5 e ive tears inka kk ys bode eae ead aes s 9

United States v. Gaines, 726 F. Supp. 1457, 1467

(E.D. Pa. 1989) aff'd without opinion, 902 F.2d

1562, 1563 (3d Cir.), cert. denied, 111 S. Ct. 128

eek swear hn VTA KOK GRADER RES HO eri

United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.

ERR CNT ts Gkh Gh oak eee khes sek AN veka ee 4

United States v. Manfredi, 722 F.2d 519, 524 (9th Cir.

TOSSES SAS a ae re eee 8

United States v. McConney, 728 F.2d 1195, 1205 (9th

ee 5 eee 7, 8, 10

United States v. Noian, 718 F.2d 589, 600 (3d Cir.

ed ekg 3.4 KAA G4 4 sab A Roe Oe Uae RAS Rs 8

United States v. Parias, 805 F.2d 1447, 1457 (11th

Cir. 1986), cert. denied, 482 U.S. 916 (1987) ......... 9

United States v. Ramirez, 770 F.2d 1458, 1460 (9th

UTE Coy kick nob ee enh s NER tS SaK EOS OS 8

United States v. Scott, 520 F.2d 697, 700-01 (9th Cir.

1975), cert. denied; 423 U.S. 1056 (1976)............. 4

United States v. Singer, 943 F.2d 758, 762-63 (7th

Ey eee eee ar 8

United States v. Spinelli, 848 F.2d 26, 28 (2d Cir.

RLU N ck ehy giles eM ey hiv kbp bp bk aes 445 sees 9

United States v. Streeter, 907 F.2d 781, 789 (8th Cir.

TLL aS core A va SK KAREN SSSR ONG MA Reka dere 9

United States v. Turner, 926 F.2d 883, 886 (9th Cir.

et ee A eo edu la'he wha was 8

iV

TABLE OF AUTHORITIES —- Continued

Page

STATUTES AND RULES

United States Constitution, Fourth Amendment..... 4,8

6 United States Code: © Jie 65 5.5 ccc civae seawancccs 9

United States Supreme Court, Rule 10.1. (a).......... 1

United States Supreme Court, Rule 37.2............2. 1

United States Supreme Court, Rule 37.5.............. 1

ee eS 8 Bk | Bee en 4

INTRODUCTION

Amici Curiae, the County of Sonoma, California and

the City of Oxnard, California (hereinafter “Amici”), sub-

mit this brief in support of the Petition for a Writ of

Certiorari to the United States Court of Appeals for the

Ninth Circuit (hereinafter the “Petition”) filed on August

4, 1992 by Petitioner, Michael Steen (“Sergeant Steen”).

Amici submit this brief pursuant to Rules 37.2. and 37.5.

of this Court.

¢

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

Amici urge the Court to grant the Petition pursuant

to that part of Rule 10.1.(a) of this Court which states, as

one of the special and important reasons for granting a

petition for a writ of certiorari, that a United States Court

of Appeals “has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned such a

departure by a lower court, as to call for an exercise of

this Court’s power of supervision.”

As set forth at greater length infra, the decision of the

United States Court of Appeals for the Ninth Circuit, in

upholding the denial of qualified immunity to Sergeant

Steen, has completely departed from settled standards

governing the entitlement of public officials to the shield

of qualified immunity. Moreover, it has done so in a

context which places particular public officials, law

enforcement officers, in the position of having to risk

their personal safety in order to avoid forfeiting their

qualified immunity if they engage in split-second deci-

sions as to which a court, in the bright gleam of hind-

sight, may opine that the circumstances were not

sufficiently exigent.

For the reasons set forth below, both the District

Court and the Court of Appeals not only denied qualified

immunity to Sergeant Steen in the absence of established

law which permitted the conclusion that his conduct was

unlawful, but they disregarded established law that dem-

onstrates the lawfulness of his conduct. In so doing, both

the District Court and the Court of Appeals so far

departed from established law in regard to the rule of

qualified immunity as to require the exercise of this

Court’s supervisory intervention.

+

RELEVANT FACTS

Sergeant Steen, acting pursuant to a warrant authori-

zing the entry into and search of a house occupied by

plaintiff Deshetres, made the decision to enter the house

on March 17, 1987, between 7 and 10 seconds after

another officer had knocked on the door of the house and

twice announced the police presence and purpose. Ser-

geant Steen made that decision on the basis of the follow-

ing facts: (1) the presence of the police had been

prematurely discovered by an associate of Deshetres,

who, upon seeing the police while en route away from

the house, returned to it; (2) Deshetres was known to be a

member of a motorcycle gang with a reputation for drugs

and violence; (3) Deshetres was known to have an arrest

record for various weapons and drug charges, including

one for robbery; and (4) Deshetres had, on a prior occa-

sion, been arrested while reaching for a handgun.

The District Court acknowledged that “police officers

are not required to comply with the knock-notice require-

ment when there are reasonable grounds to believe that

compliance would endanger the officers.” (App. 50). The

District Court also acknowledged that “the facts support

a reasonable belief that Deshetres would be inside the

house when defendants served the search warrant on the

morning of March 17, 1987.” (App. 51). The District Court

further acknowledged that “the facts support a reason-

able belief that plaintiffs received some warning, albeit a

brief one, that police were approaching their residence.”

(App. 52). Most important, the District Court found that

“the facts support a reasonable belief that Sergeant

Steen’s team would be met with armed resistance.” (App.

52). However, notwithstanding these acknowledged facts,

which demonstrate the clear existence of exigent circum-

stances, the District Court concluded that Sergeant Steen

was not entitled to qualified immunity, stating that,

despite all these facts, as well as the fact that “Deshetres

was given some warning of the police’s approach,” they

“d[id] not excuse [Sergeant Steen’s] failure to comply

with the knock-notice rule.”! (App. 53).

The Court of Appeals panel, consisting of Circuit

Judges Schroeder, Reinhardt and Kleinfeld, affirmed the

' These statements were made in an Order filed by the

District Court on Feb. 9, 1990, the contents of which were incor-

porated by reference in the District Court’s Order of Dec. 27,

1990, which denied Sergeant Steen’s request for qualified immu-

nity. (App. 15-16).

District Court’s conclusion, without noting that it was

based solely on State Court rulings construing California

Penal Code § 1531.7 The panel cited no federal decisions

itself in support of that conclusion. Indeed, the only

relevant federal decisions cited in the Court of Appeals’

opinion were two cases which pointed in the opposite

direction, i.e., United States v. Lindsey, 877 F.2d 777, 780

(9th Cir. 1989), which the panel cited for the proposition

that “[e]xigent circumstances are those ‘that would cause

a reasonable person to believe that entry was necessary to

prevent physical harm to the officers or other persons’ ”

and United States v. Scott, 520 F.2d 697, 700-01 (9th Cir.

1975), cert. denied, 423 U.S. 1056 (1976), which the panel

cited for the proposition that “[e]xigent circumstances

alsu exist where . . . occupants are armed and intend to

resist violently.” (App. 3).

In stating its reasons for upholding the District

Court’s conclusion that no exigent circumstances existed

which excused Sergeant Steen’s failure to comply with

the knock-notice requirement, the Court of Appeals

entirely disregarded the factual acknowledgements of the

District Court, as set forth supra. Instead, it treated the

District Court’s conclusion as “factual findings, which are

not clearly erroneous” and opined that its “conclusicn is

sound.” (App. 4).

2 The only federal decision cited in the District Court’s

analysis of the knock-notice entry requirement was Ker v. Cali-

fornia, 374 U.S. 23 (1963), which it cited for the proposition that

“{k]nock-notice rights are protected under the Fourth Amend-

ment.” (App. 46). The District Court seems to have assumed that

the State court decisions it cited simply replicated the require-

ments of the fourth amendment.

Sab

RELEVANT LAW - QUALIFIED IMMUNITY

In Malley v. Briggs, 475 U.S. 335, 341 (1986), this Court

emphasized the breadth of the protection afforded public

officials by the rule of qualified immunity, stating that it

affords “ample protection to all but the plainly incompe-

tent or those who knowingly violate the law” and that it

can be denied only when “on an objective basis, it is

obvious that no reasonably competent officer would have

concluded that [his conduct was in accord with clearly

established law]; but if officers of reasonable competence

could disagree on this issue, immunity should be recog-

nized.”

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

Court established that before a defendant can be denied

qualified immunity on a claim of violating a plaintiff’s

right, “the contours of the right must be sufficiently clear

that a reasonable official would understand that what he

is doing violates that right.”

Although this Court has not yet addressed the con-

cept, the courts which have addressed it have all recog-

nized that when a claim “involv[es] the balancing of

competing interests, for which the standard may be

clearly established, but its application is so fact depen-

dent that the law can rarely be considered ‘clearly estab-

lished,’ ” “the facts of the existing case law must closely

correspond with the contested action before the defen-

dant official is subject to liability under the Harlow [test].”

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.), cert. dented,

479 U.S. 848 (1986). See Melton v. City of Oklahoma City,

879 F.2d 706, 729 (10th Cir. 1989) (“because a rule of law

determined by a balancing of interests is inevitably diffi-

cult to clearly anticipate, it follows that where Pickering

balancing is required, the law is less likely to be well

established than in other cases”); Dartland v. Metropolitan

Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989)

(“Because no bright-line standard puts the reasonable

public employer on notice of a constitutional violation,

the employer is entitled to immunity except in the

extraordinary case where Pickering balancing would lead

to the inevitable conclusion that the discharge of the

employee was unlawful”); Noyola v. Texas Dep't of Human

Resources, 846 F.2d 1021, 1025 (5th Cir. 1988)(“One conse-

quence of case-by-case balancing is its implication for the

qualified immunity of public officials whose actions are

alleged to have violated an employee’s first amendment

rights. There will rarely be a basis for a priori judgment

that the termination or discipline of a public employee

violated ‘clearly established’ constitutional rights”);

Rakovich v. Wade, 850 F.2d 1180, 1213 (7th Cir. 1987)(en

banc), cert. denied, 488 U.S. 968 (1988)(“It cannot be said

that an imperfect balancing resulting, on hindsight, in a

decision on the wrong side of the scales shows plain

incompetence or total disregard, unless, of course, the

proper balance was clearly illuminated by the light of

existing law”); O'Connor v. Chicago Transit Authority, 778

F. Supp. 967, 974 (N.D. Ill. 1991)(“Balancing tests, by their

nature, make for difficult predictions regarding the out-

come of all but the most obvious cases”).

It is essential, therefore, to avoid abstractions in the

determination of claims of qualified immunity, in favor of

“studying how these abstractions have been applied in

concrete circumstances.” Barts v. Joyner, 865 F.2d 1187,

1194 (11th Cir.) cert. denied, 110 S. Ct. 101 (1989). See also

Auriemma v. Rice, 910 F.2d 1449, 1455 (7th Cir. 1990)(“The

test for [qualified] immunity is whether the law is clear in

relation to the specific facts confronting the public official

when he acted”); Muhammad v. Wainright, 839 F.2d 1422,

1424 (11th Cir. 1987)(“General propositions have little to

do with the concept of qualified immunity”).

.

RELEVANT LAW - FOURTH AMENDMENT

The Court of Appeals in this case not only failed to

cite any relevant authority which supported the District

Court’s conclusion; it also failed to acknowledge prior

Ninth Circuit decisions which are highly relevant to the

facts of this case and which demonstrate the lawfulness

of Sergeant Steen’s conduct.

In United States v. McConney, 728 F.2d 1195, 1205 (9th

Cir. 1984)(en banc), the court recognized that the issue of

exigent circumstances presents a mixed question of law

and fact which requires the balancing of competing inter-

ests, and in which one side of the balance concerns the

safety of law enforcement officers and the degree of risk

they can reasonably be expected to assume in exercising

their discretionary authority in carrying out their vital

law enforcement duties. The court expressed that princi-

ple as follows:

The mixed question of exigency is rooted in

constitutional principles and policies. Like many

such mixed questions, its resolution requires us

to consider abstract legal doctrines, to weigh

underlying policy considerations, and to bal-

ance competing legal interests. In particular, its

resolution requires that we strike a balance

between two sometimes conflicting societal

values — the safety of law enforcement officers

and fourth amendment privacy interests. The

essential and difficult question raised by this

balancing is how much risk police officers can

reasonably be expected to assume before disre-

garding the rules society has adopted to other-

wise circumscribe the exercise of their

considerable discretionary authority in carrying

out their vital law enforcement duties. (/d., foot-

notes omitted).

The Ninth Circuit has stated the principle that “a

police officer’s ‘reasonable belief that announcement

might place him or his associates in physical peril

. .. justifies non-compliance with the announcement pro-

visions of [18 U.S.C. § 3109].’ “3 United States v. Manfredi,

722 F.2d 519, 524 (9th Cir. 1983). Accord, United States v.

Turner, 926 F.2d 883, 886 (9th Cir. 1991); United States v.

Ramirez, 770 F.2d 1458, 1460 (9th Cir. 1985).

The courts in other circuits have enunciated the same

principle. See, e.g., United States v. Singer, 943 F.2d 758,

762-63 (7th Cir. 1991)(gun reputedly in occupant’s posses-

sion “posed a quantifiable risk to the safety of the officer

executing the warrant” and constituted an “exigent cir-

cumstance [which] permitted the police to enter [the

3 In United States v. McConney, supra, 728 F.2d at 1205 n.12,

the court stated that “[t]here is no dispute that the requirements

of § 3109 are rooted in constitutional values.” But see United

States v. Nolan, 718 F.2d 589, 600 (3d Cir. 1983), pointing out that

this Court has not definitively determined the relationship

between § 3109 and the fourth amendment, and concluding that

their origin and purposes, while similar, are not identical.

|

occupant’s] home withouf first knocking and announcing

their presence”); United States v. Spinelli, 848 F.2d 26, 28

(2d Cir. 1988)(reasonable belief that occupant was armed

and had a reputation for violence constituted an exigent

circumstance justifying non-compliance with section

3109); United States v. Parias, 805 F.2d 1447, 1457 (11th Cir.

1986), cert. denied, 482 U.S. 916 (1987)(“an officer’s reason-

able belief that such announcement [of the police pres-

ence and purpose before entering] might imperil himself

or other officers excuses non-compliance with [section

3109]”); United States v. Gaines, 726 F. Supp. 1457, 1467

(E.D. Pa. 1989), aff'd without opinion, 902 F.2d 1562, 1563

(3d Cir.), cert. denied, 111 S. Ct. 128 (1990) (“compliance

with section 3109 is excused when the officer has a rea-

sonable belief that it might endanger him or his associ-

ates”); United States v. Bruss, 309 F. Supp. 915, 921 (E.D.

Pa. 1969) (“where an announcement of identity and pur-

pose may result in bodily harm or peril to the arresting

officers, failure to make such announcement upon entry

may be justified and excused”).

+

APPLICATION OF RELEVANT LAW

TO THE FACTS OF THE CASE

As the court recognized in United States v. Streeter,

907 F.2d 781, 789 (8th Cir. 1990), “[t]here cannot be a hard

and fast time limit under 18 U.S.C. § 3109, given the

myriad of potential circumstances that could confront an

officer serving a warrant.” At the same time, however,

there is virtual, if not complete, unanimity of view that

where, as the District Court acknowledged in this case,

“the facts support a reasonable belief that Sergeant

10

Steen’s team would be met with armed resistance” (App.

52), exigent circumstances exist which excuse compliance

with the requirement that an officer knock, give notice

and afford the occupant(s) of a premises the opportunity

to permit peaceful entry.

Even if the facts were closer than they are, Sergeant

Steen would be clearly entitled to qualified immunity

because of the breadth of the protection afforded public

officials by the rule of qualified immunity, such that only

a “plainly incompetent” official, or one intent on “know-

ingly violat[ing] the law[,]” Malley v. Briggs, supra, 475

U.S. at 341, forfeits that protection. This is especially so in

cases where the constitutional right involved is subject to

a balancing test, and even more especially so when that

balancing test concerns, as here, consideration of “the

safety of law enforcement officers ....” United States v.

McConney, supra, 728 F.2d at 1205.

The fact that, under the undisputed circumstances

acknowledged by the District Court, Sergeant Steen’s

action was not merely arguably lawful, but was clearly

and unmistakably lawful, demonstrates that the District

Court’s conclusory assertion that there were not suffi-

ciently exigent circumstances even to warrant the grant-

ing of qualified immunity to Sergeant Steen, was plain

error as a matter of law.

In turn, the Ninth Circuit panel in this case upheld

the District Court’s denial of qualified immunity, without

citing even a single decision based on factually analogous

circumstances holding conduct such as that of Sergeant

Steen to be unlawful, let alone a line of authority argua-

bly deserving the appellation of “clearly established

11

law”4 so holding. The panel’s decision cannot be reason-

ably accounted for by any hypothesis other than that it

disregards the clear guidance of this Court in the law of

qualified immunity. This phenomenon, which is one that

is not without precedent in the Ninth Circuit Court of

Appeals (e.g., the recent effort to delay imposition of the

death penalty), is one that requires the supervisory inter-

vention of, and correction by, this Court.

*

4 The term “clearly established” has not been definitively

defined in this context by this Court. There is dictum in Lum v.

Jensen, 876 F.2d 1385, 1387 (9th Cir. 1989), that “binding prece-

dent in this circuit” would constitute “clearly established law

even if the law in other circuits were contrary.” However, this

approach is not satisfactory because it could result in disparate

conclusions as to persons in different circuits whose conduct

cannot be differentiated and as to which the same law should be

applied. A preferable formulation as to what constitutes

“clearly established law” in the context of qualified immunity is

Judge Gee’s partial concurrence and dissent in Savidge v. Fincan-

non, 836 F.2d 898, 910 (5th Cir. 1988)(“the meaning of ‘clearly

established’ is not yet clearly established; but the ring of the

whole phrase - ‘clearly established . . . rights of which a reason-

able person would have known’ - imports to me legal rights so

clearly settled and defined that knowledge of their existence is a

commonplace among the educated and failure to recognize

them implies their wilful disregard”). In this case, as demon-

strated supra, there is no need to wrestle with this issue.

12

CONCLUSION

For the reasons stated above, Amici, the County of

Sonoma California, and the City of Oxnard, California,

respectfully urge the Court to grant the Petition for a Writ

of Certiorari in this case.

Dated: September 1, 1992.

Respectfully submitted,

James P. Bortz, Esq.

County Counsel

County of Sonoma

575 Administration Drive

Santa Rosa, CA 95403

Telephone: (707) 527-2421

Gary L. Giitic, Esq.

City Attorney

City of Oxnard

300 W. Third Street

Oxnard, CA 93030

Telephone: (805) 385-7483

IRVING BERGER, Esq.

Martin J. Mayer, Esq.

Law Orrices OF Mayer & REEVES

The Oceai’ Center Building

110 W. Ocean Blvd., Suite 707

Long Beach, CA 90802

Telephone: (310) 590-8280

Attorneys for Amici Curiae