Petition for Writ of Certiorarimm — Polo Ralph Lauren Corp. v. Belekis

5

No, 22 92 1LPFR 11 2002

——

In The

Supreme Court of the Anited States

ry

POLO RALPH LAUREN CORPORATION

AND JOSE PANCHI,

Petitioners,

-against-

MARGARET M. BELEKIS;

HELEN M. BELEKIS;

CHEAP MAGGIE, INC.,

Respondents.

2

Vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

@

v

PETITION FOR WRIT OF CERTIORARI

ry

v

MARK A. BERMAN, ESQ.

Counsel of Record

GIBBONS, DEL DEO, DOLAN,

GRIFFINGER & VECCHIONE

A Professional Corporation

One Riverfront Plaza

Newark, New Jersey 07102

(973) 596-4500

Attorneys for Petitioners

Polo Ralph Lauren Corporation

and Jose Panchi

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

OR CALL COLLECT (402) 342-2831

i

QUESTION PRESENTED FOR REVIEW

Whether a private party, enlisted by law enforcement

officers to assist in the execution of a search warrant on a

single occasion, is entitled to assert a defense of qualified

immunity, a pure question of law reserved by the Court in

Richardson v. McKnight, 521 U.S. 399, 408 (1997), and

immediately appealable under Mitchell v. Forsyth, 472

U.S. 511, 530 (1985) and its progeny.

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1

and Third Circuit Local Appellate Rule 26.1, appellant

Polo Ralph Lauren Corporation makes the following

disclosure:

1) Polo Ralph Lauren Corporation does not have a

parent corporation;

2) Goldman Sachs Corporation owns 10% or more

of Polo Ralph Lauren Corporation’s stock;

3) Fireman’s Fund Insurance Company, Polo Ralph

Lauren Corporation’s insurance carrier, is not a

party to the proceeding before this Court but has

a financial interest in the outcome of the proceed-

er

y iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. ................ i

CORPORATE DISCLOSURE STATEMENT......:...... ii

NE GE GPIET EET EE sicnvecevcccscevccsenscnveseseseesccssscess ili

TAB OF AUTH OREE EID cecsccccrcevecsscvesevcccsesesessseoes Vv

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS AND ORDERS BELOV .................. eka 1

BASIS FOR JURISDICTION....................ccssesceeesseees 1

STATUTORY PROVISION INVOLVED..................... 4

STATEMEN 1 OF THE CASE. .....0sccccssccevsccsssvceveveveses 5

Ca cil iackctina scsi ppcuibienvdckvennubsiglaieces 9

THE COURT SHOULD ISSUE A WRIT OF

CERTIORARI TO RESOLVE THE IMPORTANT

QUESTION OF FEDERAL LAW RESERVED IN

RICHARDSON V. McKNIGHT: WHETHER

A PRIVATE PARTY, ENLISTED BY LAW

ENFORCEMENT OFFICERS TO ASSIST IN

THE EXECUTION OF A SEARCH WARRANT

ON A SINGLE OCCASION, IS ENTITLED TO

ASSERT A DEFENSE OF QUALIFIED

SR RN NE 9

A Private Party Enlisted By Law

Enforcement To Assist In The Execution Of

A Search Warrant Is Entitled To Assert A

Defense of Qualified Immunity........................ 11

NE Diicaipacdéhikasaseubenchsaveauhiensteresocrnasaveeusannes 18

iv

TABLE OF CONTENTS -— Continued

Page

APPENDIX

Third Circuit Order (11/4/02)...............ccssssseseseeeeeees App. 1

District Court Stay Order (12/21/01)...................4+. App. 3

District Court Summary Judgment Order

Ce eieisieaissasesn cali deliociainieinialasiciaainicdiianiainamannl App. 5

Vv

TABLE OF AUTHORITIES

CASES

Bartell v. Lohiser, 215 F.3d 550 (6th Cir. 2000)................. 15

Behrens v. Pelletier, 516 U.S. 299 (1996)............... 2, 3,4, 11

Brunette v. Humane Society of Ventura County, 294

BG BOGE Ce Ga Gite ivernsccncinevaneconsennsccestccinsncencesecsees 4

Calloway v. Boro of Glassboro Dep’t of Police, 89

F. Supp.2d 5438 (D.N.J. 2000) .......ccccsrrsccccrerrrrsccscccssceccees 15

Camilo-Robles v. Hoyos, 151 F.3d 1 (1st Cir. 1998)........... 15

Colston v. Barnhart, 146 F.3d 282 (5th Cir. 1998) ............. 3

Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997).........15

Doe v. City of Roseville, 296 F.3d 431 (6th Cir. 2002)......... 3

Entick v. Carrington, 19 How. St. Tr. 1029 (KB.

in vvicecisinsiivacucsscnsnshibhevenaqsintbeiiastndniitenatiieniiahinantiaunenees 11

Firestone v. Rice, 71 Mich. 377, 38 N.W. 885 (1888).......... 13

Hanlon v. Berger, 526 U.S. 808 (1999) .............cccsseseseeeeeees 11

Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000)........ 10

Johnson v. Jones, 515 U.S. 304 (1994) .................. 2, 3, 4, 11

Krueger v. Wisconsin, 171 Wis. 566, 177 N.W. 917

Ci aisesiniistcnicetipatlntcnisetipabict snes esitieaasigiiietaiaianiibeniessitian 13

Massachusetts v. Sheppard, 468 U.S. 981 (1984)............... 8

Mejia v. City of New York, 119 F. nbd 2d 232

re: Se en aceniachinasitetessnchadiiitnsinesincsnatninidereten 15, 17

Merrill v. Palmer, 13 N.H. 184 (1842) 0... eee eeeeeeeeeees 13

Mitchell v. Forsyth, 472 U.S. 511 (1985).................. 2, 11, 13

Novak v. Wisconsin, 185 Wis. 616, 202 N.W. 336

ee aieieiilcnisnceiheceieliiichsisisateils biases dala ec eet a cabana 12

vi

TABLE OF AUTHORITIES — Continued

Pennsylvania v. Sadowsky, 80 Pa. Super. 496, 1923

Wes GD CID cacicscuscsentenetenneebinnetitenieatiniiaennnite 13

Proffitt v. Ridgway, 279 F.3d 503 (7th Cir. 2002)............... 4

Reed v. Rice, 25 Ky. 44, 1829 WL 1812 (1829)........000 14, 15

Richardson v. McKnight, 521 U.S. 399 (1997) ......... passim

Robinson v. Georgia, 93 Ga. 77, 18 S.E. 1018 (1893)........ 13

Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991)........... 16

Sherman v. Four County Counseling Ctr., 987 F.2d

BOE CURR GOR, SI wwtinsnttstninicacinvtiitienmiitasiaindaiaaaianl 16_

United States v. Leon, 468 U.S. 897 (1984) ...............cccceeees 8

Warner v. Grand County, 57 F.3d 962 (10th Cir.

SID wxsveccssnsnscensbiosiguionsiignduianitieaimnmiaemaiais 15, 16

Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997).................... 3

STATUTES & RULES

. 4R. BORD BD i nsvictesiseidiasnisticdsiitiennaieaaemdiaaas 10, 11, 12

Be CERI S BG re uivigivicvintitaessesniaiaeaaan 4

SD 97 Ea th RIA sisson vnentesecssisianiinkeimaniataaneeeibaaaaiiaadiain 4

CB WEG. © Te vinnititictiniivniimiiamemedcmaaaee passim

OTHER AUTHORITIES

Hilliard, The Law of Torts 365-66 (1859) ............ccccccceseeees 13

aa nea a a Ca

| PETITION FOR WRIT OF CERTIORARI

OPINIONS AND ORDERS BELOW

The unreported opinion of the United States Court of

Appeals for the Third Circuit, as well as the orders of the

| U.S. District Court for the District of New Jersey denying

summary judgment and staying the trial-level proceed-

ings, are reprinted in the attached appendix.

¢

BASIS FOR JURISDICTION

On June 24, 1999, Margaret Belekis and her mother,

Helen Belekis, sued Polo Ralph Lauren Corporation its

employee, Jose Panchi (the “Polo defendants”), and other

private parties, alleging multiple causes of action under 42

U.S.C. § 1983 and New Jersey tort law, arising from their

participation in the execution of a search warrant at

“Cheap Maggie,” Margaret Belekis’ discount clothing store

in Hoboken, New Jersey, at the request of the Hudson

County Prosecutor’s Office. The other defendants settled,

but the Polo defendants moved for summary judgment on

the ground that, among other things, they were entitled to

qualified immunity under Richardson v. McKnight, 521

U.S. 399, 413 (1997) (reserving for future consideration

the question of whether qualified immunity should be

afforded to “a private individual briefly associated with a

government body, serving as an adjunct to government in

an essential government activity, or acting under close

official supervision”). On November 15, 2001, the district

court denied summary judgment in an order that did not

explicitly address the question of law reserved in Richard-

son, and which specified three disputed issues of fact, none

STIS

- 2

of which were relevant to the question of qualified immu-

nity. App. 4-5. —

On December 11, 2001, the Polo defendants filed a

notice of appeal from so much of the district court’s order

as denied their claim of qualified immunity. On December

21, 2001, the district court entered an order staying the

case pending the Third Circuit’s determination of “the

issue of whether Defendants, as private individuals, are

entitled to the protection of qualified immunity pursuant

to Richardson v. McKnight, 521 U.S. 399, 402 (1997).”

App. 3. By Order dated November 4, 2002, the Third

Circuit dismissed the Polo defendants’ appeal for lack of

jurisdiction. App. 1.

The issue presented for review — “Whether a private

party, enlisted by law enforcement officers to assist in the

execution of a search warrant on a single occasion, is

entitled to assert a defense of qualified immunity” - is a

threshold question of law and, as such, is immediately

appealable from the denial of qualified immunity. See

Richardson, 521 U.S. at 402 (deciding interlocutory appeal

from a district court’s pre-trial denial of private prison

guards’ claim that they were entitled to assert a defense of

qualified immunity) (citing Mitchell v. Forsyth, 472 U.S.

511, 530 (1985) (holding that public officials may immedi-

ately appeal the denial of qualified immunity)). Although

this Court held in Johnson v. Jones, 515 U.S. 304 (1994)

that questions of evidentiary sufficiency are not immedi-

ately appealable from the denial of qualified immunity, it

later explained in Behrens v. Pelletier, 516 U.S. 299, 312-

13 (1996) that Johnson does not preclude an immediate

appeal in every case where there are disputed facts but,

rather, only where there is a genuine issue of fact material

to question of qualified immunity itself.

3

The Court in Behrens further noted that even Johnson

envisioned that where, as here, a district court fails to

specifically identify those factual disputes underlying its

denial of qualified immunity at the summary judgment

stage, the court of appeals cannot simply decline jurisdic-

tion but, rather, is required to undertake-a “detailed

evidence-based review of the record” to determine whether

~ any disputed fact material to the question of qualified

immunity actually exists. Behrens, 516 U.S. at 309, 313

(quoting Johnson, 515 U.S. at 319). This has been the

approach of Circuits other than the Third Circuit. See, e.g.,

Doe v. City of Roseville, 296 F.3d 431, 437-38 (6th Cir.

2002) (holding that, under Behrens and Johnson, court of

appeals has jurisdiction to review the record to determine

which facts district court likely assumed where “the

district court did not identify the facts that it assumed

when it denied summary judgment to ... defendants

claiming qualified immunity”); Colston v. Barnhart, 146

F.3d 282, 284-86 (5th Cir. 1998) (holding that, under

Behrens and Johnson, court of appeals must review the

record to determine which facts the district court likely

assumed where there is a “lack of specificity” in the

“district court’s explanation of the nature of the factual

dispute in light of the summary judgment evidence”);

Winfield v. Bass, 106 F.3d 525, 534-35 & n.6 (4th Cir. 1997)

(holding that “when a district court fails to set forth fully

the factual basis” underlying its qualified immunity

ruling, the court of appeals “reviews the evidence properly

before the district court for purposes of considering the

summary judgment question”).

a eT

4

Here, the three disputed facts listed by the district

court in its order denying summary judgment were not

relevant to the question of qualified immunity.’ Moreover,

the terms of the Third Circuit’s order dismissing the Polo

defendants’ appeal makes clear that the court of appeals

did not undertake any review of the record — much less the

“detailed evidence-based review of the record” required by

Behrens and Johnson — to determine whether there were

any disputed facts relevant to the question-of qualified

immunity upon which the district court may have relied in

denying summary judgment. Accordingly, the Third

Circuit properly had jurisdiction to review the threshold

legal question presented on appeal under 28 U.S.C. § 1291.

This Court, in turn, has jurisdiction to grant certiorari

under 28 U.S.C. § 1254(1).

,%

sf

STATUTORY PROVISION INVOLVED

The issue presented for review arises under 42 U.S.C.

§ 1983, which provides in relevant part as follows:

* The district court’s conclusion that a question of fact exists as to

whether Jose Panchi engaged in “state action,” though critical to the

question of substantive Section 1983 liability, is not material to the

question of qualified immunity. Indeed, the qualified immunity analysis

assumes that Panchi’s conduct constituted “state action” for, if it did

not, there could be no substantive Section 1983 liability in the first

instance. See, e.g., Brunette v. Humane Society of Ventura County, 294

F.3d 1205, 1207 (9th Cir. 2002) (holding that private actors who

accompanied police officers executing search warrant were not state

actors); Proffitt v. Ridgway, 279 F.3d 503, 507-08 (7th Cir. 2002)

(holding that private actor who “render[ed] brief, ad hoc assistance to a

public officer” does not by that fact alone become a state actor).

5

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the ju-

risdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party in-

jured in an action at law, suit in ere. or other

proper proceeding for redress. .

4

vv

STATEMENT OF THE CASE

On or about May 29, 1997, Roadway Express, Inc.,

delivered a shipment of Burberry shirts to the Statco

warehouse in Jersey City, New Jersey. Ten cartons, total-

ing about three hundred shirts with the cut number

“TB176,” did not make it to the warehouse and were

reported stolen to Cluett Designer Group, the authorized

manufacturer and distributor of shirts with the Burberry

label. Cluett filed a loss claim with Roadway, which hired

an outside investigator to investigate the theft.

On June 17, 1997, a Cluett employee named Susan

Waite, who worked as a distribution manager at the Statco

warehouse, but who previously was a Burberry salesper-

son, was shopping at “Cheap Maggie,” Margaret Belekis’

discount clothing store, and saw Burberry shirts selling for

$19.95, less than the cost of manufacture and far below

their $95.00 retail price. Further investigation revealed

that the cut number of the shirts being sold at Cheap

Maggie (“T'B176”) matched the cut number of the missing

Roadway shirts. These findings were conveyed to the

6

Hudson County Prosecutor’s Office, which commenced its

own investigation. Specifically, after interviewing Susan

Waite, Lieutenant Timothy Griffin sent Hudson County

Investigator Adrian Corrigan to Cheap Maggie, where he

purchased another Burberry shirt with a “I'B176” cut

number for $19.99, and which Waite identified as being

identical to the one she had purchased the day before.

While in the store, Corrigan noticed a Polo Ralph Lauren

shirt with a cut tag, thought it might be stolen, and

bought it, too. Investigator Corrigan then returned to

headquarters and, with Lieutenant Griffin, drafted a

search warrant and supporting affidavit setting forth

probable cause for, and seeking permission to periorm, a

search of Cheap Maggie for stolen Burberry shirts. The

materials were approved by Assistant Hudson County

Prosecutor Jack Hill, and the final search warrant was

typed up by Hill’s secretary. The affidavit and warrant

were then presented to New Jersey Superior Court Judge

Kevin G. Callahan, who signed the warrant.

That same evening, the search warrant-was executed

at Cheap Maggie by Investigator Corrigan, Lieutenant

Griffin, Assistant Prosecutor Hill, and several uniformed

members of the Hoboken Police Department. After the

police secured the store, which was being minded by Helen

Belekis, a number of private individuals employed by

Cluett and Roadway entered the store for the purpose of

identifying potentially stolen property. During the search,

Investigator Corrigan noticed in plain view other Polo

Ralph Lauren shirts with cut tags, which is one sign of

altered merchandise from a stolen load. After conferring

with Lieutenant Griffin, and with the approval of Assis-

tant Prosecutor Hill, Investigator Corrigan borrowed

Sergeant John Merced’s cell phone and called Jose Panchi,

a Polo security and loss prevention supervisor with whom

he was acquainted, told him they were executing a search

warrant, and asked him to come to Cheap Maggie to

inspect the shirts to determine whether they were, in fact,

stolen. Panchi told his supervisor, Vincent Volpi, that he

had received a police request for assistance and, with

Volpi’s permission, he responded to the store.

Panchi testified at his deposition that, when he

arrived at the store, he looked at the Polo shirts, could not

tell whether they were stolen, and left. Margaret Belekis

testified at her deposition that Panchi — whom she thought

was some sort of law enforcement officer — did not simply

look at the Polo display but, rather, participated fully in

the search. It appears that Ms. Belekis mistook Panchi,

who is Hispanic, for one of two Hispanic police officers

whose actions on the day of the search corresponded to

those described by her. In any event, Ms. Belekis admitted

that she did not have any evidence of Polo’s involvement in

the preparation and securing of the search warrant other

than her personal belief that Panchi “was invited to

conduct a general search, a dragnet search of my store.”

At some point, Helen Belekis said something to one of

the law enforcement officers, who then read the search

warrant and realized that the search items were errone-

ously listed as “heroin” and “drug paraphernalia.” Recog-

nizing that the search warrant, in contrast to the search

warrant affidavit, was defective, the Hudson County

investigators concluded their search and left the store with

three Burberry shirts. It was later determined that Assis-

tant Prosecutor Hill’s secretary had made a mistake in

conforming the final typed warrant to the draft.

8

On June 24, 1999, Margaret Belekis and her mother,

Helen Belekis, filed a civil complaint in the United States

District Court for the District of New Jersey alleging that

the private companies and their employees who assisted

the Hudson County Prosecutor’s Office in executing the

defective search warrant at Cheap Maggie, including Polo

Ralph Lauren Corporation and its employee, Jose Panchi,

violated the plaintiffs’ constitutional rights under 42

U.S.C. § 1983 (and committed various state-law torts). The

law enforcement officers who participated in the search

were not named in the complaint, presumably because

they would have been entitled to qualified immunity. See

United States v. Leon, 468 U.S. 897, 922-23 (1984) (recog-

nizing that police officers can objectively reasonably rely

on an invalid warrant to conduct a search); Massachusetts

v. Sheppard, 468 U.S. 981, 988 (1984) (holding that that

officer’s execution of search in reliance upon flawed war-

rant was objectively reasonable). All of the defendants,

other than the Polo defendants, have settled.

On November 15, 2001, the district court denied the

Polo defendants’ motion for summary judgment in an

order that did not explicitly address the issue of qualified

immunity. App. 4. On December 11, 2001, the Polo defen-

dants filed a notice of appeal from the district court's

denial of qualified immunity. On December 21, 2001, the

district court entered an order staying the case pending

the Third Circuit’s determination of “the issue of whether

Defendants, as private individuals, are entitled to the

protection of qualified immunity pursuant to Richardson

v. McKnight, 521 U.S. 399, 402 (1997).” App. 3. The plain-

tiffs moved the Third Circuit to dismiss the Polo defen-

dants’ appeal for lack of jurisdiction. On November 4,

ne

9

2002, the court of appeals granted the plaintiffs’ motion.

App. 1.

,

A

ARGUMENT

THE COURT SHOULD ISSUE A WRIT OF CERTIO-

RARI TO RESOLVE THE IMPORTANT QUESTION

OF FEDERAL LAW RESERVED IN RICHARDSON

v. McKNIGHT: WHETHER A PRIVATE PARTY,

ENLISTED BY LAW ENFORCEMENT OFFICERS TO

ASSIST IN THE EXECUTION OF A SEARCH WAR-

_ RANT ON A SINGLE OCCASION, IS ENTITLED TO

ASSERT A DEFENSE OF QUALIFIED IMMUNITY.

In Richardson v. McKnight, 521 U.S. 399 (1997), this

Court held that prison guards employed by a private

prison management firm are not entitled to assert a

defense of qualified immunity from suit by prisoners

charging a violation of 42 U.S.C. § 1983. The Court,

however, was careful to limit its decision to the specific

facts presented, and purposefully included the following

relevant caveat:

[W]e have answered the immunity question nar-

rowly, in the context in which it arose. That con-

text is one in which a private firm, systematically

organized to assume a major lengthy administra-

tive task (managing an institution) with limited

direct supervision by the government, undertakes

that task for profit and potentially in competition

with other firms. The case does not involve a pri-

vate individual briefly associated with a govern-

ment body, serving as an adjunct to government

in an essential government activity, or acting un-

der close official supervision.

10

Id. at 413 (emphasis added). See Jensen v. Lane County,

222 F.3d 570, 576 (9th Cir. 2000) (noting that the Court in

Richardson “left open the question whether some private

actors closely related to governmental function might have

some kind of qualified immunity in contexts unrelated to

prisons”).

The “important question of federal law” reserved in

Richardson is the precise issue presented for review in

this case. See S. Ct. Rule 10(c). Specifically, at the request .

of the Hudson County Prosecutor’s Office, Jose Panchi-

participated in the execution of a search warrant at Cheap

Maggie on a single occasion. As discussed below, not only

have law enforcement officers routinely depended upon

just this sort of transitory assistance from private citizens

to safeguard the public but, historically, such private

citizens were cloaked with the same (and often broader)

immunity than that afforded to the public officers them-

selves. Furthermore, the imposition of civil liability upon

private citizens who respond to requests for assistance by

law enforcement officials will dissuade citizens from

assisting in the increasingly difficult job of criminal law

enforcement, deter the very cooperation upon which

effective law enforcement depends, and, thereby, seriously

undermine the ability of the Nation’s law enforcement

agencies to protect the public.

In addition, the Third Circuit’s refusal to address this

pure issue of law in the context of an interlocutory appeal

simply because the district court’ summary judgment

order identified several disputed facts unrelated to the ]

question of qualified immunity, and without engaging in

its own “detailed evidence-based review of the record,”

11

conflicts with the relevant decision of this Court in

Richardson, Johnson, and Behrens, see S. Ct. Rule 10(c),

and with the decisions of its sister circuits cited above, see

Sup. Ct. Rule 10(a). Indeed, the Third Circuit’s approach

flies in the face of Richardson itself, which was decided by

this Court in the context of a pre-trial interlocutory ap-

peal. See 521 U.S. at 402 (citing Mitchell v. Forsyth, 472

U.S. at 530). Z ‘

Accordingly, the Court should seize this opportunity to

answer the important question of law left open in

Richardson, and adopt a rule which encourages private

citizens to assist the police without fear of future civil

liability. Specifically, the Court should issue a writ of

certiorari and hold that private actors enlisted by law

enforcement officials to assist in the execution of a search

warrant are entitled to assert a defense of qualified

immunity.

A Private Party Enlisted By Law Enforcement To

Assist In The Execution Of A Search Warrant Is

Entitled To Assert A Defense of Qualified Immunity.

When law enforcement officers execute a search

warrant “for stolen property, the presence of third parties

for the purpose of identifying the stolen property has long

been approved by this Court and our common law tradi-

tion.” Hanlon v. Berger, 526 U.S. 808, 611-12 (1999)

(noting that, at common law, the owner of stolen goods was

required to “‘attend the execution of the warrant to show

them to the officer’”) (quoting Entick v. Carrington, 19

How. St. Tr. 1029, 1067 (K.B. 1965)). Under such circum-

stances, the public officials involved in the execution of the

search warrant are afforded the protection of qualified

immunity in order to preserve their ability to serve the

12

public good without being distracted by the threat of

lawsuits, and to ensure that talented candidates are not

deterred- from entering public service. Richardson uv.

McKnight, 521 U.S. 399, 407-08 (1997) (discussing

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Whether

these underlying purposes of qualified immunity militate

in favor of extending its protection to a private citizen who

responds to a police request for assistance in executing a

search warrant presents a compelling and “important

question of federal law that has not been, but should be,

settled by the Court.” See S. Ct. Rule 10(c).

In Richardson, the Court delineated a two-part test to

determine whether qualified immunity should be extended

to any given class of private defendants. Specifically, the

Court directed lower courts to consider: 1) whether history

reveals a tradition of immunity in the relevant context,

521 U.S. at 404-07; and 2) whether the immunity doc-

trine’s purposes warrant immunity for such private actors,

id. at 407-12. Here, both factors militate in favor of afford-

ing private citizens enlisted to assist in the execution of a

search warrant the right to assert a defense of qualified

immunity.

1) History Reveals A Firmly Rooted Tradition

Of Immunity In The Context Of Private

Citizens Enlisted To Assist In The Execu-

tion Of Warrants.

There is a long history in this country and at common

law of law enforcement officers’ enlisting private citizens,

as bystanders or as a posse comitatus, to assist in the

performance of their law enforcement duties, including the

execution of warrants. See, e.g., Novak v. Wisconsin, 185

Wis. 616, 202 N.W. 336 (1925) (recognizing that “[flrom

13

time immemorial sheriffs have had the power to summon

the posse comitatus to aid them in making arrests and

executing writs and process,” including search warrants);

Merrill v. Palmer, 13 N.H. 184, 185 (1842) (“But being

commissioned by the sheriff, he acted under color of office.

He was an officer de facto, and that was sufficient.”);

Hilliard, The Law of Torts 365-66 (1859) (“Although an

officer, in order to justify himself alone, must prove a legal

commission and authority; a third person, claiming under

his acts, is required only to show that he assumed to be an

officer and acted as such.”). In such cases, the private

citizen enlisted to assist in the execution of a warrant was

entitled to at least the same protections afforded to the

public officer. See Pennsylvania v. Sadowsky, 80 Pa. Super.

496, 1923 WL 3548 at *1-*2 (1922) (recognized the con-

tinuing vitality of the common law rule that “private

persons may respond to a call from a known officer” for

assistance “without pausing to inquire into the regularity

of the process” and, having done so, are immune from

liability even if the public officer is later determined to

have been “acting wrongfully and may [himself] be per-

sonally liable for a false arrest”) (citing cases); Krueger v.

Wisconsin, 171 Wis. 566, 177 N.W. 917, 923-24 (1920) (“We

hold that all who were there, constituting the posse,

lending assistance to the deputy United States marshal in

the apprehension of those for whom he held warrants,

were acting under his direction and command, construc-

tively at least, and were entitled to the same protection

and immunity extended to the deputy marshal himself.”);

Robinson v. Georgia, 93 Ga. 77, 18 S.E. 1018, 1019 (1893)

(holding that a private person summoned to assist the

sheriff in the execution of a warrant “is entitled to the

same protection in the discharge of his duties as the

sheriff himself”); Firestone v. Rice, 71 Mich. 377, 38 N.W.

14

885 (1888) (holding that a private person enlisted to assist

the sheriff is immune from suit); Reed v. Rice, 25 Ky. 44,

1829 WL 1312, at *3 (1829) (holding that a private person

enlisted to assist in the execution of a search warrant is

immune from suit even if the sheriff is not).

Thus, in contrast to the private prison guards at issue

in Richardson, history reveals a firmly rooted tradition of

affording to private citizens enlisted to aid in the execution

of a warrant the same immunity (indeed, in some circum-

stances even broader immunity, than that) afforded to law

enforcement officials themselves. Accordingly, this first

factor militates in favor of making available to such

private parties the defense of qualified immunity.

2) The Underlying Purposes Of The Qualified

Immunity Doctrine Warrant Its Extension

To Private Citizens Enlisted By Law En-

forcement Officials To Assist In The Exe-

cution Of A Search Warrant.

In addition to the firmly rooted tradition of affording

immunity to private citizens enlisted by law enforcement

officials to assist in the execution of a search warrant, the

purposes underlying the immunity doctrine also warrant

its extension to such private individuals. The necessity of

protecting the government’s ability to perform its tradi-

tional law enforcement function weighs heavily in favor of

providing qualified immunity to private actors who render

necessary assistance to the police. In this regard, the need

to facilitate such assistance by private citizens has long

been acknowledged:

The right and power of an officer to summon the

citizen to aid in the execution of precepts to him

EE

15

directed, is highly necessary, if not indispensable

to the well being of society. If all those summoned

had to examine and judge of the legality of the

process, and then act upon their own responsibil-

ity, this necessary power in the officer would, in

practice, be paralyzed in a great degree.

Reed v. Rice, 25 Ky. 44, 1829 WL 1312, at *3 (1829). For

these very reasons, those federal courts that have consid-

ered the circumstances under which a private party is

protected by qualified immunity after Richardson have

universally held that one who is enlisted to assist law

enforcement in performing an essential government

function on a single occasion, or under close official super-

vision, is entitled to assert a qualified immunity defense.

See Bartell v. Lohiser, 215 F.3d 550 (6th Cir. 2000) (holding

that directors of non-profit foster care contractor, which

placed a child at State agency’s direction, and under its

close supervision, is entitled to assert qualified immunity);

Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. 1998)

(holding that private psychiatrist employed by State to

evaluate police officers entitled to assert qualified immu-

nity); Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir.

1997) (holding that city’s private outside legal counsel

entitled to qualified immunity following Richardson);

Mejia v. City of New York, 119 F.Supp.2d 232, 268

(E.D.N.Y. 2000) (holding that air courier enlisted by law

enforcement to assist in an arrest entitled to assert quali-

fied immunity); Calloway v. Boro of Glassboro Dep’t of

Police, 89 F. Supp.2d 543, 557 n.21 (D.N.J. 2000) (holding

that private individual asked to assist in a single criminal

investigation entitled to assert qualified immunity). This

approach is consistent with that adopted even prior to the

Richardson decision. See, e.g., Warner v. Grand County, 57

F.3d 962 (10th Cir. 1995) (holding that female director of

16

crisis center was entitled to qualified immunity for con-

ducting a strip search of female detainees at the request of

police); Sherman v. Four County Counseling Ctr., 987 F.2d

397, 403-06 (7th Cir. 1993) (holding that a private psychi-

atric facility that participated in an emergency involun-

tary detention, pursuant to a court order, was entitled to

qualified immunity); Rodriques v. Furtado, 950 F.2d 805,

815 (1st Cir. 1991) (holding that a physician who con-

ducted a body cavity search at the direction of the police

was entitled to qualified immunity).

In all of these cases, the courts have recognized that

the underlying purposes of the doctrine of qualified immu-

nity would be defeated if private actors were held liable for

errors committed by public officials to whose aid they had

come. As the Tenth Circuit has explained, if private

citizens “are not permitted to raise the shield of qualified

immunity, they might reject requests to aid state officials

in performing governmental functions” which would, in

turn, “clearly constrain state officials’ agility in performing

such functions, frustrate the government's investigatory

power, and thereby limit the state’s ability to serve the

public good.” Warner, 57 F.3d at 967. See also Sherman,

987 F.2d at 405-06 (holding that policy justifications

underlying the doctrine of qualified immunity apply with

full force to situation of private hospital asked to care for

invoiuntarily committed patient since, if the hospital was

subject to suit, it might refuse to accept patients in the

future, increasing the already strained resources of the

State’s public hospitals); Rodrigues, 950 F.2d at 815

(holding that public policy warranted extension of quali-

fied immunity to private physician enlisted to assist in

execution of body cavity search warrant because “exposing

private physicians to § 1983 liability without the shield of

17

qualified immunity would not only be unfair, it could deter

them from assisting in the execution of valid warrants”).

Indeed, it is indisputable that the chilling effect of denying

private citizens the protection of qualified immunity would

severely hamper law enforcement efforts:

There can be little doubt that the threat of civil

liability will distract private citizens from their

duty to promptly render aid to the police when it

is needed and thus, will hinder law enforcement.

Mejia, 119 F. Supp.2d at 264.

This assessment is unassailable. Law enforcement

officers must operate in an increasingly dangerous, com-

plex, and secretive world. They cannot perform their critical

function alone. Yet, unless private citizens are protected

from liability when enlisted to render assistance to the

police, they will be, at best, reluctant and, at worst, unwill-

ing to come to the aid of law enforcement when requested to

do so. Accordingly, this Court should hold — as it suggested

in Richardson — that a private individual, briefly associated

with the government for the purpose of assisting in the

execution of a search warrant on a single occasion, is

entitled to assert a defense of qualified immunity.

,

vv

18

CONCLUSION

For these reasons, petitioners Polo Ralph Lauren

Corporation and Jose Panchi respectfully request that the

Court grant their petition for a writ of certiorari to the

United States Court of Appeals for the Third Circuit.

Respectfully submitted,

MARK A. BERMAN, ESQ.

Counsel of Record

~GIBBONS, DEL DEO, DOLAN,

GRIFFINGER & VECCHIONE

A Professional Corporation

Attorneys for Petitioners

Polo Ralph Lauren Corporation

and Jose Panchi

Dated: December 11, 2002 :

App. 1

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 01-4429

MARGARET M. BELEKIS; HELEN M. BELEKIS;

CHEAP MAGGIE, INC.

| v.

BURBERRY LIMITED; POLO RALPH LAUREN COR-

PORATION; INTERCEPT INVESTIGATIONS, INC.;

ROADWAY EXPRESS, INC.; CLUETT DESIGNER

GROUP, INC.; SUSAN WAITE; KENNETH MCCANN;

JOYCE LEUNG; LEANNE TEMPLETON; THOMAS

FEE; JOSE PANCHI

~ Polo Ralph Lauren Corporation and Jose Panchi,

Appellants

(D.C. Civil No. 99-cv-02964)

Before: SLOVITER and FUENTES, Circuit Fuge, and

FULLAM, District Judge

ORDER

Defendants Polo Ralph Lauren Corporation and Jose

Panchi appealed from the District Court’s order filed

November 15, 2001 denying their motion for summary

judgment. Defendants contend that they are entitled to

summary judgment on the ground of qualified immunity

as a matter of law. The Plaintiffs have moved to dismiss

* Hon. John P. Fullam, United States District Court for the

Eastern District of Pennsylvania, sitting by designation.

App. 2

the appeal on the ground that this court lacks jurisdiction

over this interlocutory appeal. In its order denying Defen-

dants’ motion for summary judgment the District Court

stated that the remaining questions of material fact

precluded summary judgment in favor of any party,

specifically listing three remaining questions of fact that

preclude summary judgment and then stated that sum-

mary judgment is denied “as a result of these and other

disputed questions of material fact.”

After reviewing the briefs of the parties and hearing

their counsel on oral argument, this Court concludes that

we have no jurisdiction over the interlocutory appeal. We

will grant Plaintiffs’ motion to dismiss the appeal and

deny their request for counsel fees and costs as sanctions

against the Polo Defendants.

By the Court,

/s/ Dolores K. Sloviter

Circuit Judge

Dated: 11/04/02

ARL/cc: Mark A. Berman, Esq.; Henry H Rossbacher, Esq.

App. 3

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Margaret Belekis, Helen M. Hon.

Belekis, and Cheap Maggie, Dennis M. Cavanaugh

ine., ORDER

Plaintiffs, Civil Action No.:

Vv. 99-2964

Br "berry Ltd., Polo Ralph (Filed

Lauren Corp., et al., Dec. 21, 2001)

Defendants.

DENNIS M. CAVANAUGH, U.S.D.J.

This matter comes before the Court upon Defendants’,

Polo Ralph Lauren and Jose Panchi, submission of a

Notice of Appeal to the Third Circuit from this court’s

Order denying the Defendants’ motion for summary

judgment. The basis for this interlocutory appeal is the

issue of whether Defendants, as private individuals, are

entitled to the protection of qualified immunity pursuant

to Richardson v. McKnight, 521 U.S. 399 (1997). Defen-

dants seek a stay of the proceedings on this matter pend-

ing appeal;

IT IS on this 21st day of December 2001;

ORDERED that Defendants’ application to stay the

proceeding pending appeal is granted.

/s/ Dennis M. Cavanaugh

Dennis M. Cavanaugh, U.S.D.J.

App. 4

Original: Clerk

Copies:

All Counsel of Record

File

App. 5

FILE COPY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Margaret Belekis, Helen M. ° Hon.

Belekis, and Cheap Maggie, - Dennis M. Cavanaugh

wate "OPINION AND

Plaintiffs, ORDER

V. : Civil Action No.:

Burberry Ltd., Polo Ralph 99-2964

Lauren Corp., et al., (Filed

Defendants. Nov. 15, 2001)

DENNIS M. CAVANAUGH, U.S.D.J.

This matter comes before the Court upon a motion by

Defendants, Polo Ralph Lauren Corporation and Jose

Panchi for summary judgment dismissing Plaintiffs’

claims under 42 U.S.C. § 1983 and further allegations of

conspiracy to violate the Fourth Amendment, violations of

the New Jersey Constitutional provisions on search and

seizure and common law claims in tort.

The Court having reviewed the submissions of the

parties in support of and opposition to these motions,

concludes that remaining questions of material fact exists

[sic] that preclude summary judgment or dismissal in

favor of any party. The remaining questions of fact in-

clude, but are not limited to:

1. Whether Defendants relied on the search

warrant, which was defective on its face, or

whether the issuing judge and Defendants

App: 6

relied on Officer Corrigan’s affidavit to the

warrant application.

2. Whether the language on the face of the war-

rant was sufficient to indicate officer’s inter-

est in stolen shirts and whether the conceded

typographical error on the warrant was rea-

sonable and the subsequent search con-

ducted in good faith.

3. Whether the initial contact between Jose

Panchi and Adrian Corrigan, in assisting the

police in identifying stolen shirts, was “state

action” or was Mr. Panchi acting as a private

party thus defeating Plaintiffs allegations

that the parties conspired to violate Plain-

tiffs’ Fourth Amendment rights.

As a result of these and other disputed questions of

material fact; -

IT IS hereby ordered on this the 13th day of Novem-

ber 2001, that Defendants Motion for summary judgment

is denied.

/s/ Dennis M. Cavanaugh

Dennis M. Cavanaugh, U.S.D.J.

Original: Clerk

Copies: All Counsel of Record

File