Reply Brief — Mottola v. Ayeni

~

Petitioner,

Vv.

TAWA AYENI AND KAYODE AYENI,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITIONER’S REPLY MEMORANDUM

JAMES R. MURRAY*

Nei A. RIEMANN

COVINGTON & BURLING

CC

eT Le

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

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

Anderson v. WROC, 441 N.Y.S.2d 220

(Sup. Ct. Monroe Cty. 1981) .........

Belcher v. City of Foley, 30 F.3d 1390

fe be a Se eae eee rae

Bivens v..Six Unknown Named Agents

of Fed. Bureau of Narcotics,

a eS en ee

Elder v. Holloway, 114 S. Ct. 1019 (1994) ....

Higbee v. Times Advocate, Inc., 5 Media L.

at. Zara Ge. GO. TRU) ov ee cee

In re Southeastern Equip. Co. Search Warrant,

746 F. Supp. 1563 (S.D. Ga. 1990) .....

Inc. Pub. Corp. v. Manhattan Magazine, Inc.,

(i)

i

ii

616 F. Supp. 370 (S.D.N.Y. 1985), aff’d,

788 F.2d 3 (2d Cir. 1986). ............0.-. 2

Michigan v. Summers, 452 U.S. 692 (1981) ........ 3

Microsoft Corp. v. BEC Computer Co.,

SiS F. Supp. 1913 @.D. Cal. WORE)... ee es 2

Mitchell v. Forsyth, 472 U.S. 511 (1985) .......... 3 |

Moncrief v. Hanton, 10 Media L. Rptr. 1620,

BOLE CEA. CRO TD oc eh eh eke eee ay 2

New Haven Inclusion Cases, 399 U.S. 392 (1970) ....2 |

Ohio Civil Serv. Employees Ass’n v. Seiter,

ee Sieg te | ree 7

Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984),

cert. Gameaa, 471 U.S... Fiat CHRO) 6c ct ek es 2

Prahl v. Brosamle, 295 N.W.2d 768 (Wis. Ct. |

| REPEC Pee ree eee ee re ; |

Richardson v. Selsky, 5 F.3d 616 (2d Cir. 1993) ..... 6

Russell v. Scully, 15 F.3d 219 (2d Cir. 1993),

on petition for rehearing, 15 F.3d 222 (1994) .... 6

Soares v. State of Connecticut, 8 F.3d

ee kkk 6 a ek a 7

iii

United States v. Barlin, 686 F.2d 81

Is le ori eka oe ele eo Wa 3

| United States v. Clouston, 623 F.2d

| a oe al, oe 4

|

United States v. Crozier, 777 F.2d

I MI ee Nk sk Ae ele 8s 3

United States v. Gambino, 734 F. Supp.

EN a a 4

United States v. Gervato, 474 F.2d

40 (3d Cir.), cert. denied, 414 U.S.

EO eee kk ke oe 4

United States v. Heldt, 668 F.2d 1238

(D.C. Cir. 1981), cert. denied,

a ree 3

United States v. Matias, 836 F.2d

EE ee 3

United States v. Sanchez, 509 F.2d 886

Ih De se ek eee ee 4

United States v. Schwimmer, 692 F.

EL. BUD we tt 4

United States v. Warren, 550 F.2d 219 (Sth Cir. 1977),

cert. denied, 434 U.S. 1016 (1978),

rev'd, 578 F.2d 1058 (Sth Cir. 1978) (en banc),

IV

on reh’g, 612 F.2d 887 (Sth Cir. 1980) (en banc),

cert. denied, 446 U.S. 956 (1980),

overruled in part by

United States v. Bengivenga, 845 F.2d 593

(Sth Cir. Tex. 1988),

cert. denied, 488 U.S. 924 (1988) ........... 4

United States v. Wright, 667 F.2d

ee ee ED Ge wl A ek ee a

Woodward v. City of Worland, 977 F.2d 1392

(10th Cir. 1992), cert. denied,

Cae ee I a ee he oe eee aes 7

Constitutional Provision, Statutes, and Rules

ak See CONC bs ei ee se ae Se 4,5

ee 0 ae ee ee 4

Pa Ge ee cs Fe Se eee 4

Pe 4 6 5 ots oe eta ae ee 2

Hornbooks

ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 8.6 (2d ed.

ee eee ee ee ae eee 6

SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES

LITIGATION: THE LAW OF SECTION 1983 § 8.07 (3d ed.

No. 94-1202

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

JAMES MOTTOLA,

Petitioner,

Vv.

TAWA AYENI AND KAYODE AYENI,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE -

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

1. Respondents’ opposition spends much time

reiterating an undisputed proposition: that "[t]he Anderson [v.

Creighton, 483 U.S. 635 (1987),] test permits finding a

clearly established right even where an earlier decision is not

directly on point with the current facts." Br. Opp. 9. That,

however, simply begs the question presented by petitioner:

whether a court is free to find a clearly established right -- a

right whose contours are "sufficiently clear that a reasonable

officer would understand that what he is doing violates that

right," Anderson, 483 U.S. at 640 -- within its jurisdiction

based on abstract legal principles when cases directly on point

in other jurisdictions suggest that what he is doing violates no

right at all. The answer is no.

(1)

|

2

Respondents argue that the Second Circuit could

ignore foreign cases directly on point and find a clearly

established right because petitioner’s conduct was "so far from

then well established acceptable constitutional behavior,"

Ayeni v. CBS Inc., Pet. 64a, that no cases were needed to

guide him. Br. Opp. 10. This argument misses the point:

there were cases to guide Special Agent Mottola -- Higbee v.

Times-Advocate, 5 Media L. Rptr. 2372 (S.D. Cal. 1980);

Moncrief v. Hanton, 10 Media L. Rptr. 1620 (N.D. Ohio

1984); and Prahl v. Brosamle, 295 N.W.2d 768 (Wis. Ct.

App. 1980) -- and these cases held that permitting news media

to witness the execution of a warrant did not violate the

United States Constitution. Respondents’ contention is also

substantially undermined by the pervasiveness of reality-based

"cop shows" carried by the major television networks at the

time of the challenged conduct.’

When all is said and done, respondents press two real

“Respondents are wrong that this Court cannot take judicial notice of the

existence and airing of reality-based “cop shows" such as "Cops," "Top

Cops,” "Street Stories," “Night Beat,” “American Detective," or

"America’s Most Wanted.” Unlike the contested facts allegedly found in

competing newspaper articles cited to the Court in the New Haven

Inclusion Cases, 399 U.S. 392, 450 n.66 (1970), this information can be

judicially noticed because it is both "generally known within the territorial

jurisdiction of [this Court]," Fed. R. Evid. 201(b)(1), and “capable of

accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Ollman v.

Evans, 750 F.2d 970, 986 n.32 (D.C. Cir. 1984) (taking judicial notice

that syndicated columns on political and social issues appear on the Op-Ed

pages of newspapers), cert. denied, 471 U.S. 1127 (1985); Microsoft Corp.

v. BEC Computer Co., 818 F. Supp. 1313, 1319(C.D. Cal. 1992) (taking

judicial notice that a particular magazine article and advertisement exist);

Inc. Pub. Corp. v. Manhattan Magazine, Inc., 616 F. Supp. 370, 380

(S.D.N.Y. 1985) (taking judicial notice that many newsstands display

magazines in a particular manner), aff'd, 788 F.2d 3 (2d Cir. 1986).

3

objections to Moncrief, Higbee, and Prahi. First, they

protest that these decisions are not "binding" on the Second

Circuit. Second, they urge that Moncrief and Higbee lack

value because they are unpublished.

Both objections are misguided. Of course the Second

Circuit was not bound by these cases. That is not the

question. The question is whether the public policy interest

in avoiding the unjust imposition of liability on government

officials that lies behind this Court’s qualified immunity

jurisprudence permits a court to create a judicial fantasy

wherein a law enforcement officer is charged with knowledge

of a federal right that five judges trained in the law and

engaged in a sincere effort to apply the Constitution to the

situation at hand found to be nonexistent. With regard to

Respondents’ second objection -- that unpublished decisions

lack intellectual merit -- it is sufficient to point out that this

Court held in Mitchell v. Forsyth, 472 U.S. 511, 535 (1985),

that a violated right was not clearly established because, inter

alia, two. district courts outside the relevant jurisdiction had

upheld the challenged conduct in unpublished opinions.

Surely a government official is not expected to devote more

thought to these issues than a court of law, whether or not the

court officially publishes its thought.

The "mountain of authorities" said to clearly establish

respondents’ right to be free from miedia attendance at the

execution of a lawfully obtained search warrant was carefully

considered in the petition. Pet. 10-11. None of the twelve

cases relied on by the Second Circuit invalidated a search or

seizure.” Certainly none was sufficient to provide a

“Michigan v. Summers, 452 U.S. 692 (1981); Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 394 n.7 (1971); United States v. Matias,

(continued...)

4

reasonable law enforcement officer like Agent Mottola with a

clear understanding that he was violating a constitutional right

by permitting media representatives to witness the execution

of a search warrant. Nor can decisions upholding certain uses

of nongovernmental third parties to assist in the execution of

a warrant be converted, as respondents contend, Br. Opp. 16,

into a clearly established principle that the presence of

nongovernmental third parties not assisting in the execution of

a warrant violates the constitution. That proposition is a

non sequitur.*

#(.. .continued)

836 F.2d 744, 747 (2d Cir. 1988); United States v. Crozier, 777 F.2d

1376, 1381 (9th Cir. 1985); United States v. Barlin, 686 F.2d 81 (2d Cir.

1982); United States v. Heldt, 668 F.2d 1238, 1260 (D.C. Cir. 1981),

cert. denied, 456 U.S. 926 (1982); United States v. Wright, 667 F.2d 793,

797 (9th Cir. 1982); United States v. Clouston, 623 F.2d 485 (6th Cir.

1980); United States v. Gervato, 474 F.2d 40, 45 (3d Cir. 1973), cert.

denied, 414 U.S. 864 (1973); United States v. Gambino, 734 F. Supp.

1084, 1091 (S.D.N.Y. 1990); In re Southeastern Equip. Co. Search

Warrant, 746 F. Supp. 1563, 1577 (S.D. Ga. 1990); United States v.

Schwimmer, 692 F. Supp. 119, 126-27 (E.D.N.Y. 1988). The last six of

these cases interpret the federal warrant statute, 18 U.S.C. § 3105, not the

Fourth Amendment. Their relevance to the inquiry whether a

constitutional right has been clearly established remains unclear. The same

holds true for Fed. R. Crim. P. 41, which regulates the issuance of search

warrants, and cases interpreting it.

»The other cases discussed in respondents’ brief, Anderson v. WROC-TV,

441 N.Y.S.2d 220, 226 (Sup. Ct. Monroe Cty. 1981); United States v.

Sanchez, 509 F.2d 886 (6th Cir. 1975); and United States v. Warren, 550

F.2d 219 (Sth Cir. 1977), cert. denied, 434 U.S. 1016 (1978), rev’d, 578

F.2d 1058 (Sth Cir. 1978) (en banc), on reh’g, 612 F.2d 887 (Sth Cir.

1980) (en banc), cert. denied, 446 U.S. 956 (1980), overruled in part by

United States v. Bengivenga, 845 F.2d 593 (Sth Cir. Tex. 1988), cert.

denied, 488 U.S. 924 (1988), do no more to clearly establish the right

respondents claim. Respondents egregiously misinterpret the holding in

WROC; the WROC court found that the news crew, not the Humane

(continued...)

5

What is left of respondents’ "mountain" of authorities

at the end of the day is a rather small "molehill" of

constitutional generalities, not the clear warning of illegality

to which law enforcement officers are entitled before. liability

is imposed upon them. And, in the context of qualified

immunity jurisprudence, even these generalities are less than

lucid or compelling. Abstract Fourth Amendment principles

provide little guidance to law enforcement officers in the field.

See Anderson, 483 U.S. at 644 ("We have frequently

observed, and our many cases on the point amply

demonstrate, the difficulty of determining whether particular

searches or seizures comport with the Fourth Amendment.").

Respondents have privacy interests like everyone else, but

such interests can give way to society’s interests when there

is probable cause to suspect criminal activity, as was the case

here. The Constitution’s general privacy norms thus provide

little useful guidance to an officer in the field making a

decision about who may attend the execution of a search

warrant.

Respondents argue that Agent Mottola’s view

"demeans the integrity of the law enforcement process by

giving a ‘green light’ to plainly unconstitutional conduct which

has not yet been brought to the attention of the courts," Br.

+(,..continued)

Society agent they accompanied, committed a trespass. See 441 N.Y.S.2d

at 222 (news crews’ defenses at issue). The court found no violation of

the Constitution whatsoever. Sanchez simply held that a search warrant

authorizing a state officer to search for narcotics could not be used to

validate a federal officer’s search for explosives. 509 F.2d at 890.

Similarly, Warren merely held that Drug Enforcement Agency agents could

not search for narcotics on the general authority of the Coast .Guard to

board oceangoing vessels for safety inspections. 550 F.2d at 225. Neither

WROC, Sanchez, nor Warren suggested that the parties with valid warrants

committed a constitutional violation simply by permitting the parties

lacking such warrants to accompany them.

6

Opp. 23, but Agent Mottola believes his position protects the

integrity and efficacy of the law enforcement process by

preventing unwarranted imposition of liability on law

enforcement officials for conduct which is arguably

unconstitutional when that conduct has been brought to the

attention of several courts and those courts have not found it

problematic. This Court has previously recognized that

"officials who act in ways they reasonably believe to be lawful

. . . Should not be held personally liable" for unlawful

conduct. Anderson, 483 U.S. at 641. This Court should

grant review to prevent erosion of that protective principle.

2. Prominent authorities have noted the divisions

among the circuits identified by petitioner regarding both the

sources of authority to be used to determine whether a

particular right is clearly established and their required level

of specificity. See, e.g., ERWIN CHEMERINSKY, FEDERAL

JURISDICTION § 8.6 (2d ed. 1994); SHELDON H. NAHMOD,

CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW

OF SECTION 1983 § 8.07 (3d ed. 1994). Contrary to

respondents’ contentions, the Second, Sixth, Tenth, and

Eleventh Circuits rely on a narrower evaluation of existing

cases than that employed by other circuits to ascertain whether

a particular right is "clearly established" for purposes of

eliminating a state actor’s qualified immunity. While the

Second Circuit here did in fact consider general constitutional

cases from other jurisdictions supporting its view that the right

claimed by respondents was clearly established in the Second

Circuit, it completely ignored cases from other jurisdictions --

the only cases directly on point -- which found that the right

claimed by respondents does not exist. The overarching

justification for this selectivity, if there is one, may be found

in the Second Circuit’s view that clear establishment is

essentially a "local" exercise. See, e.g., Richardson v. Selsky,

5 F.3d 616 (2d Cir. 1993) ("To be sure, by 1985, other

Circuits had begun to adopt various approaches . . . However,

7

as of March 1985, when [plaintiff's] disciplinary hearing was

held, in this Circuit the contours of his claimed federal rights

. . . were not clearly delineated."); Russell v. Scully, 15 F.3d

219 (2d Cir. 1993), on petition for rehearing, 15 F.3d 222,

223-24 (1994); Soares v. State of Connecticut, 8 F.3d 917,

922 (2d Cir. 1993).

Respondents unsuccessfully try to conflate the

methodology used in the Second, Sixth, Tenth, and Eleventh

Circuits with that employed by the other circuits by showing

that the former too permit reference to the laws of other

jurisdictions. This is true, but only in_ restricted

circumstances. As noted in the petition, the Sixth Circuit

permits establishment by other courts "[i]n an extraordinary

case." Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d

1171, 1177-78 (1988). The Tenth Circuit considers the law

in other circuits, but such cases generally lack effect unless

they represent the "clearly established weight of authority

from other courts." Woodward v. City of Worland, 977 F.2d

1392, 1397 (10th Cir. 1992) (rejecting claim that right was

clearly established in 1987 despite cases in the Third and

Seventh Circuits and several district courts holding to the

contrary), cert. denied, 113 S. Ct. 3038 (1993). And as

respondents concede, Br. Opp. 28-29, the Eleventh Circuit

accords little weight to foreign precedent for purposes of

determining whether a particular right is clearly established.

Belcher v. City of Foley, 30 F.3d 1390, 1400 (11th Cir. 1994)

(rejecting clear establishment despite Fifth and Ninth Circuit

cases to the contrary).

This Court recently decided that lower courts should

rely on "full knowledge of [their] own [and other relevant]

precedents," rather than just the precedents presented by the

parties, to determine whether a particular right was clearly

established. Elder v. Holloway, 114 S. Ct. 1019, 1023

(1994). Respondents argue that this resolves any disagreement

l

8

among the circuits regarding petitioner’s claims. In

petitioner’s view, Elder v. Holloway begs rather than resolves

the two circuit-dividing questions behind Agent Mottola’s

petition: What are the "other relevant precedents” upon which

a court may (or must) rely, and may a court ignore case law

from other jurisdictions which is directly on point in favor of

more general case law in its own jurisdiction which suggests

a contrary result? This court should grant review to consider

these important questions on which the courts are divided.

CONCLUSION

Therefore, the petition for a writ of certiorari should

be granted.

Respectfully submitted.

JAMES R. MURRAY*

NEIL A. RIEMANN

COVINGTON & BURLING

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

Attorneys for Petitioner

*Counsel of Record

MARCH 1995