Opposition Brief — Quinn v. Roach (No. 09-252)

Supreme Court, U.S.

| | FILED

No. 09-252 NOV 20 2009

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

JOHN GERARD QUINN,

Petitioner,

V.

JOHN ROACH, GAIL LEYKO, MANUEL GONZALES,

CURTIS HOWARD, KRISTI TYLER, MICHELLE

VOIRON, JOSE QUILES, COLLIN COUNTY, TEXAS,

AND THE CITY OF MCKINNEY, TEXAS,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

+

THOMAS P. BRANDT

Counsel of Record

JOHN F. ROEHM, III

JOSHUA A. SKINNER

FANNING HARPER MARTINSON

BRANDT & KUTCHIN, P.C.

Two Energy Square

4849 Greenville Ave., Suite 1300

Dallas, Texas 75206

(214) 369-1300 Telephone

Attorneys for Respondent

Jose Quiles

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, in light of the mumerous and

inexcusable misrepresentations of the record by

Petitioner and the lack of significant issues of law

presented by this case, this Court should waste its

limited resources by granting Petitioner’s request to

review the unanimous, unpublished opinion of the

Fifth Circuit.

ll

TABLE OF CONTENTS

Page

SPE CPIN PRIDOIGIN IE EDD...................000ccccrsscereese i

a ii

OE AL) F PROPER 1 LIDS ...........2..0.0cccccccrecereees iv

Teen ss ec oseseesenssvssessnesseveees l

STATEMENT OF THE CASE......................0.c.000 5

Se 5

B. Petitioner Misrepresents the Facts of the

rise cscs insesaeccssesscsevceeseecess 9

REASONS FOR DENYING THE WRIT.............. 13

I. THE PETITION DOES NOT PRESENT

AN IMPORTANT LEGAL ISSUE ON

WHICH THERE IS CONFLICTING

ace inieyscscsesescvesessecaseseeveeses 13

A. The Courts Uniformly Agree that the

Testimony of Victim Eyewitnesses is

Generally Sufficient to Establish

Probable Cause to Arrest .................... 13

B. There is No Important Issue in this

Case: Petitioner Simply Failed to Set

Forth Evidence in Response to Officer

Quiles’ Motion for Summary Judg-

Teed indssbnweessebessencnssevevesesces 19

1. Petitioner Misguidedly Contends

that a Civil Rights Plaintiff is Not

Required to Provide Evidence in

Response to a Motion for Summary

Judgment Based on Qualified

ir. vencnseesdenseecseunaontses 19

il

TABLE OF CONTENTS — Continued

Page

2. Petitioner Attempts to Limit the

Qualified Immunity Defense to the

Pleadings and Prohibit the Use of

the Defense Based on the Facts....... 23

C. Petitioner Misrepresents the Fifth

Circuit’s Application of Qualified Im-

munit: in a Vain Attempt to Create

the Illusion of a Conflict with Prior

PURINA os siccs scarica 25

1. Even a Cursory Glance at the

Fifth Circuit’s Qualified Immunity

Analysis Demonstrates that it

Relies on this Court’s Recent

i RON RARE OEIC EE 27

2. The Fifth Circuit Specifically Re-

jected the Alleged Error Petitioner

Claims is Readily Apparent in the

Fifth Circuit’s Decision................... 29

Il. THE OUTCOME OF THIS APPEAL HAS

NO PRECEDENTIAL EFFECT AND

WOULD NOT AFFECT THE OUTCOME

OP TERED Rsk 5 IE IO oven nsssccssncnssscrsccnsaeane 30

A. The Fifth Circuit’s Decision is Unpub-

lished and has No Precedential Effect.... 30

B. Reversal of the Fifth Circuit’s Decision

Would Not Affect the Outcome of the

Case Because a Neutral Magistrate

Issued the Arrest Warrant .................. 31

CONCLUSION ...........: suaaias keg CEA aL CN Aes 33

1V

TABLE OF AUTHORITIES

Page

CASES

Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5

CU Oe oo innvcss eve enusian vx tad eonethi esto niedonoaie 13

Anderson v. Creighton, 483 U.S. 635 (1987).............. 27

Ashcroft v. Iqbal, ____ U.S. ___, 129 8. Ct. 1937

I osretis ant cctaicdetesceanidenscuuviaeeiave nines acetates 21

Behrens v. Pelletier, 516 U.S. 299 (1996)............. 20, 23

Brosseau v. Haugen, 543 U.S. 194 (2004)............ 24, 25

Caldarola v. Calabrese, 298 F.3d 156 (2d Cir.

IE. icsiitenssnteczens EOE aD: RCH Te ert eT ASR IE 15

Clay v. Conlee, 815 F.2d 1164 (8th Cir. 1987)............ 14

Easton v. City of Boulder, 776 F.2d 1441 (10th

ee NN aa erage raed paces assert Paani as asks dena 15

Glover v. State, 102 S.W.3d 754 (Tex. App. —

TORAYRAME BOOZ, WOE. POT A)... ....sccccicoccvesccsenscsasveeans 14

Groh v. Ramirez, 540 U.S. 551 (2004)... eee. 32

Hale v. Fish, 899 F.2d 390 (5th Cir. 1990).....15, 16, 17

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............ 21

Fope v. Peizer, S36 U.S. TSO (QOGZ) cvcsseiserprescrcvassecness 29

Illinois v. Gates, 462 U.S. 213 (1983)..............0066 15, 32

Malley v. Briggs, 475 U.S. 335 (1986)..............cccceeeees 32

Massachusetts v. Sheppard, 468 U.S. 981

Messenger v. State, 2008 Tex. App. LEXIS 4357

(Tex. App. — Fort Worth 2008, no pet.)...............0... 14

TABLE OF AUTHORITIES — Continued

Page

Michigan v. DeFillippo, 443 U.S. 31 (1979)............... 24

Mitchell v. Forsyth, 472 U.S. 511 (1985).............. 20, 23

Pearson v. Callahan, __ U.S. __,, 129 S. Ct.

III 30. 70.00, 02 cauncuvenksiebavecanmnreansoiie saci passim

Reynolds v. Jamison, 488 F.3d 756 (7th Cir.

SR ARE ene een aE PCT eM E Ne OP le LI 14

Ripson v. Alles, 21 F.3d 805 (8th Cir. 1994)....15, 17, 18

Saucier v. Katz, 533 U.S. 194 (2001).............. 24, 28, 29

Schramm v. State, 648 S.E.2d 392 (Ga. Ct. App.

DEE con se erase aocastzesecinerdeaisartncamaunauiniva a sieasean 14

Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997) ........ 14

United States v. Shaw, 464 F.3d 615 (6th Cir.

oN Caras ack telcos nas eccacenbe aur aeantlg eeeauareatoeee mmr ree 14

Wilson v. Layne, 526 U.S. 603 (1999).............ccceeecceee: 30

CONSTITUTIONAL PROVISIONS

Ee Ts TI, BO os cidchsccisvasinvcseneiseeones passim

OF Be a” Ai ee ose 8, 32, 33

OR ae ae be rr §. 32. 33

STATUTES

aR a Sp. EAU ee Soin eee a Men Genes Basses eset eae 8

vl

TABLE OF AUTHORITIES — Continued

Page

RULES

I Wn ss bu guaunapbu da ebeurenacenbeuets 16, 31

Ss ee ois inskhsce Vecksccccassscxeceses 8, 19, 20, 21, 27

I aos iru isadcaneekeavucedssdecsenbeucsavkases 20, 27

Oe CU a viva vexsccudcexsancssccadesacdacsncs ZO. Fi, Za, 24

SUMMARY

This case raises no new issues regarding the

application of the Fourth Amendment or qualified

immunity. Twenty judges have had the opportunity to

review Officer Quiles’ conduct and the warrant that

led to Petitioner’s arrest and none of them have

concluded that Petitioner’s Fourth Amendment rights

were violated or that Officer Quiles’ conduct violated

clearly established law.

The state court magistrate held that there was

probable cause to arrest Petitioner for the alleged

rape of Petitioner’s daughter based on the facts then

known to Officer Quiles. Both the United States

magistrate judge and the United States district -ourt

judge agreed that there was, at the very least,

arguable probable cause to arrest Petitioner. They

both further found that there was no evidence to

suggest that Officer Quiles concealed exculpatory

information from the state court magistrate.

In turn, a three-judge panel of the Fifth Circuit

unanimously upheld the district court’s decision. The

three-judge panel considered its decision to be so

routine and mundane as not to merit publication.

Finally, as a result of Petitioner’s filing of a

petition for rehea:ing en banc, the remaining four-

teen judges in regular active service had an oppor-

tunity to review this matter. Out of a total of seven-

teen Fifth Circuit judges, not a single one requested

that the Fifth Circuit be polled on Petitioner’s

petition for rehearing en banc. The twenty judges who

2

have had the opportunity to review this case have

been in unanimous agreement: this is a routine,

mundane case in which an officer had, at the very

least, arguable probable cause to present his request

for an arrest warrant to a neutral, detached

magistrate. This case does not present any issues

worthy of this Court’s review.

Remarkably, Petitioner tries to paint the Fifth

Circuit as some sort of rogue court which has a long-

established custom of ignoring this Court’s precedents

with respect to the application of qualified immunity.

Petitioner’s portrait of the Fifth Circuit is surreal. It

is based on misrepresentations of the record, mis-

representations of the Fifth Circuit’s opinion below,

misrepresentations of previous Fifth Circuit opinions

and misrepresentations of opinions from other federal

courts.

Officer Quiles signed an affidavit in support of

his application for an arrest warrant. The state

magistrate reviewed the application, found probable

cause to exist, and issued the arrest warrant. Peti-

tioner’s arrest was the end result of an investigation

into rape allegations initially made by Petitioner’s

daughter to her mother in the course of the

daughter’s suicide attempt. Those allegations were

repeated with more particularity to a nurse and a

social worker during interviews. The daughter’s

allegations were first made to her mother at home,

next made to a nurse at the hospital and finally

repeated in a more particularized way (on videotape)

to a trained social worker at the local children’s

3

advocacy center. That trained social worker referred

the matter to the police. Officer Quiles responded to

the referral by reviewing the materials and docu-

ments and reviewing the videotaped interview. After

that, Officer Quiles interviewed and took a written

statement from the victim’s mother, obtained a doc-

ument allowing him to obtain the victim’s medical

records and obtained an affidavit from the nurse who

heard one of the outcry statements. Armed with all of

this information, Officer Quiles approached the state

court magistrate to request an arrest warrant. After

considering the evidence, the magistrate issued an

arrest warrant for Petitioner.

Ignoring the evidence, Petitioner contends that

Officer Quiles violated Petitioner’s clearly established

Fourth Amendment rights by applying for the arrest

warrant. First, Petitioner contends that the restric-

tions applicable to anonymous informants should

apply to victim eyewitnesses. More specifically, Peti-

tioner contends that, as a matter of law, the testi-

mony of a victim eyewitness cannot serve as a suffi-

cient basis for probable cause to arrest without sup-

porting evidence. However, the lower federal courts,

like this Court, have recognized that the testimony of

an eyewitness, particularly the victim of an alleged

crime, is entitled to greater credence than inform-

ants.

Second, Petitioner contends that Officer Quiles

should not have relied on the testimony of Peti-

tioner’s daughter because she may have had a motive

to lie. The undisputed summary judgment evidence

4

established that, at the time, Officer Quiles was not

aware of any evidence which called into question the

credibility of Petitioner’s daughter.

Third, perhaps recognizing that the summary

judgment evidence demonstrates that Officer Quiles

is entitled to summary judgment, Petitioner argues

that courts should not consider the evidence when

deciding qualified immunity — even if qualified immu-

nity is asserted in a motion for summary judgment.

Petitioner contends that when qualified immunity is

asserted in the context of a motion for summary

judgment, the court should look only to a plaintiff’s

allegations and not to the evidence. Respondent is

not aware of any case in which any court has decided,

in the context of a motion for summary judgment

based on qualified immunity, to apply the standard

proposed by Petitioner, namely, the standard ap-

plicable to motions to dismiss for failure to state a

claim. There is simply no authority to support

Petitioner’s quixotic effort to exempt civil rights

claims from the normal federal summary judgment

practice.

Fourth, Petitioner attempts to create a conflict

among the circuits in regard to qualified immunity by

misrepresenting the Fifth Circuit’s opinion. Petitioner

falsely claims that the Fifth Circuit used a three-step

sequence in deciding qualified immunity, rather than

the two-step sequence adopted by this Court. While

the Fifth Circuit mentioned that, in the past, it had

sometimes used a three-step sequence for qualified

immunity, it specifically noted in this case that it was

.)

not following those earlier Fifth Circuit precedents

and instead was adhering to this Court’s more recent

qualified immunity decisions.

The Fifth Circuit’s decision, both on the Fourth

Amendment and qualified immunity, is in line with

the precedents of this Court and of the other federal

courts of appeals. Petitioner cannot change the un-

remarkable nature of the Fifth Circuit’s decision

through his misrepresentations of the facts and lower

court opinions. Moreover, the Fifth Circuit’s decision

has even less significance because it has no prece-

dential effect and, even assuming it was reversed,

Officer Quiles would still be entitled to summary

judgment because a neutral magistrate issued the

warrant. Officer Quiles disclosed to a magistrate all

of the relevant evidence in Officer Quiles’ knowledge

at the time and the magistrate issued an arrest

warrant.

The petition for writ of certiorari should be

denied.

STATEMENT OF THE CASE

A. Background.

1. Quinn and his former wife, Laurie Houston,

divorced in 1991. Quinn was awarded custody of their

two children, but one of them, Quinn’s daughter

Katie, went to live with Houston at some point. On

July 15, 2004, Katie, who was sixteen at the time,

6

told her mother that Quinn had been sexually

abusing her since she was eight years old. Earlier

that day, Katie had been arrested for shoplifting.

While Katie and her mother were discussing Katie’s

arrest, Katie alleged that she had been abused by

Quinn. This allegation was made in conjunction with

Katie’s attempted suicide. After that, Katie was taken

to the hospital. See App. 5.

2. At the hospital, Nurse Joy Turner performed

an admission assessment on Katie. During the

assessment, Katie stated that Quinn had sexually

abused her beginning when she was eight years old

and ending when she was twelve. Nurse Turner

reported the allegations of abuse to the Texas

Department of Family and Protective Services, Child

Protective Services Division (CPS). On July 21, 2004,

Dawn Todd of the Denton County Children’s Advocacy

Center conducted a videotaped interview with Katie.

In the interview, Katie stated that her father had

engaged in sexual intercourse with her on two

separate occasions, once when she was eight years old

and once when she was nine or ten years old. See

App. 5-6.

3. On July 30, 2004, Officer Quiles received a

written notification of the alleged abuse from CPS

(the CPS intake report) and a copy of the videotaped

interview conducted by Todd. Quiles viewed the

videotape of the interview on August 9, 2004. On

August 12, Laurie Houston met with Quiles and

provided Quiles with a written statement regarding

the events of July 15, 2004, including Katie’s claim

that Quinn had been sexually abusing her since she

was eight years old. Houston also stated that Quinn

was an alcoholic and a flight and suicide risk. See

App. 6.

4. On the same date, Quiles asked Houston to

provide him with a copy of Katie’s medical records.

On August 31, 2004, Beth Hudson, a registered

nurse, performed a Sexual Assault Nurse Examiner

(SANE) examination on Katie. See App. 6.

5. On September 2, 2004, Quiles received an

affidavit from Joy Turner, the nurse who had per-

formed the admission assessment on Katie at the

hospital, recounting Katie’s statements to her that

her father had abused her from ages eight to twelve.

See App. 6-7.

6. Based on the videotaped interview of Katie,

Turner’s affidavit, Houston’s written and oral state-

ments, and the CPS intake report, Quiles executed a

probable cause affidavit on September 8, 2004, for

Quinn’s arrest. The next day, a warrant was issued

for Quinn’s arrest for the felony criminal offense of

aggravated sexual assault of a child. Quinn was

arrested by the McKinney Police Department on

September 12, 2004. Quiles was not present at the

arrest. Quiles was not aware of the results of the

SANE examination until after Quinn’s arrest. The

examination revealed that Katie had a hymen tear.

indicating some form of physical trauma. The report

did not indicate the cause of the tear or when it had

occurred. See App. 7.

8

7. After the criminal case against Quinn was

dismissed, Quinn sued Officer Quiles and the City of

McKinney (“the City”) (jointly, “the City Defendants”)

under 42 U.S.C. § 1983 for allegedly violating Quinn’s

right to be free from unreasonable seizures under the

Fourth Amendment.’ See App. 3. The City Defendants

filed a motion to dismiss all claims under Federal

Rule of Civil Procedure 12(b)(6) and Officer Quiles

also filed a motion for summary judgment. Jd. The

district court adopted the report and recommendation

of the magistrate, dismissing all of Quinn’s claims

against the City and granting summary judgment to

Officer Quiles. See App. 4. Quinn appealed to the

Fifth Circuit on some of his claims and the court of

appeals affirmed the decision of the district court. See

App. 1. Quinn sought rehearing en banc, but none of

the Fifth Circuit judges requested the case be con-

sidered for rehearing. See App. 45. Quinn now seeks

review of the Fifth Circuit’s decision which affirmed

that Officer Quiles is entitled to qualified immunity

from Quinn’s Fourth Amendment claim. See Pet. Br.

i.

‘ Quinn also brought claims against Officer Quiles and the

City for alleged violations of his mnght to due process and equal

protection under the Fifth and Fourteenth Amendments, for

malicious prosecution under state and federal law, and for false

arrest and imprisonment and various forms of negligence under

state law. See App. 3. Quinn has not sought review on any of

these other claims.

* Quinn also seeks review of certain claims against the

Collin County district attorneys. See Pet. Br. 1-11. Quinn’s claims

(Continued on following page)

9

B. Petitioner Misrepresents the Facts of the

Case.

1. Petitioner misleadingly states, “It is undis-

puted that the only evidence the police had in their

possession before applying for the arrest warrant was

the uncorroborated outcry of Katie, made on the day

she was arrested for shoplifting and while attempting

suicide, eight years after the alleged assault

supposedly occurred.” Pet. Br. i. Petitioner’s state-

ment implies that the police relied solely on an

allegation made in the midst of a suicide attempt. See

id. at 4 (“whose outcry was made on the same day she

was arrested for shoplifting and while she was so

distraught”). This is false and misleading. Katie’s

statement during her suicide attempt was the first

time she told her mother that Petitioner sexually

assaulted her. See App. 5. That statement was

followed up by consistent statements to independent

interviewers, including Joy Turner, the nurse who

performed an admission assessment on Katie on the

day of the suicide attempt and Dawn Todd of the

Denton County Children’s Advocacy Center. See App.

5-6. Officer Quiles did not rely solely on the state-

ments of Laurie Houston, or even the statements of

Turner and Todd. Officer Quiles reviewed those

relating to the alleged delay in prosecution do not relate to

Officer Quiles or the City.

10

materials, but he also viewed the videotape of Todd’s

interview with Katie. See App. 6-7.”

2. Petitioner states, “the Fifth Circuit also

incorrectly stated that Quinn did not produce any

evidence of unconstitutional conduct. Actually, Quinn

produced the only such evidence in the entire case:

the affidavit of Melvin Tucker.” Pet. Br. 11 n.5. Peti-

tioner’s statement is false and misleading. First,

Melvin Tucker’s affidavit was rejected for various

reasons, including the fact that Tucker relied on

evidence discovered after the arrest to explain why

Tucker believed that there was no probable cause to

arrest Quinn. See S. App. 23.“ Second, the Fifth

Circuit noted that Quinn failed to present evidence

challenging Officer Quiles’ assertion that he was

unaware of the allegedly exculpatory evideiice when

he signed the probable cause affidavit. See App. 14

and 17; see also S. App. 23. As the Fifth Circuit

explained, it was not objectively unreasonable “for

Quiles to have believed that probable cause existed in

light of the detailed nature of Katie’s allegations and

the fact that Quiles did not possess evidence at the

* Katie has consistently maintained that Petitioner sexually

assaulted her. No subsequent interviews have changed her

testimony on the essential facts of her aliegation of rape.

“ The magistrate explained, “Tuckez’s affidavit, as noted by

Defendants, assumes that Quiles knew facts that Quiles has

stated, under oath, that he did not [know] at the time he

submitted the affidavit for the warrant. Therefore, Tucker’s

affidavit has little effect on this analysis.” S. App. 23.

11

time that Katie may have had a motive to fabricate

the allegations.” App. 13.

3. Petitioner states, “Defendant Quiles ad-

mitted that all he had to go on to suspect this crime

had been committed was the uncorroborated story of

an informant of unknown reliability, a story com-

pletely unsupported by any physical evidence.” Pet.

Br. 21. Petitioner’s statement is misleading in two

respects. First, it is misleading to refer to Katie as

merely “an informant.” In the terminology of the

federal courts, Katie was a victim eyewitness. The

courts, including this one, have recognized the dif-

ference between informants in general and eyewit-

nesses, especially the victim of a crime. Second, Peti-

tioner emphasizes that Katie’s story was unsupported

by any physical evidence. That there might be no

physical evidence is not surprising. The alleged rape

occurred many years before and Katie had been

sexually active since that time. See App. 16. Signif-

‘cantly, while Officer Quiles did not have physical

evidence at the time he signed the probable cause

affidavit, the medical report from the SANE examiner

did lend support to Katie’s allegations of sexual

trauma. See App. 7; S. App. 23.

4. Petitioner states, “He also admitted that

hearing a story (even three different versions of the

same story) may be enough for reasonable suspicion

and thus trigger an investigation, but it does not pro-

vide probable cause sufficient to support an arrest.”

Pet. Br. 21. Petitioner then states, in a footnote,

“Somehow, Officer Quiles then decided that hearing

12

the same story a fourth time pushed him from

reasonable suspicion to probable cause. ... Even the

Fifth Circuit was critical of Quiles on this point.” Jd.

at 21 n.12. Petitioner’s statements are false and mis-

leading. First, Officer Quiles did not state that

hearing a story (e.g., of an eyewitness or victim

eyewitness) cannot provide probable cause to support

an arrest. The deposition pages cited by Petitioner

and included in Petitioner’s appendix do not support

Petitioner’s claim. Second, Officer Quiles did not state

that merely “hearing the story a fourth time” created

probable cause. Officer Quiles explained that he had

reasonable suspicion after he had reviewed the

written statements from the individuals who inter-

viewed Katie, but that he had probable cause when

he reviewed Katie’s statement on the videotaped

interview. See App. 55-64. Third, the Fifth Circuit did

not criticize Officer Quiles for believing there was

probable cause. The Fifth Circuit did note that it

would have been better if Officer Quiles could have

found some way to personally interview Quinn and

Katie, but the court was careful to note “we do not

believe that it was objectively unreasonable to believe

that probable cause existed without interviewing

Quiles and Houston [sic].” App. 15 n.4.

¢

13

REASONS FOR DENYING THE ..viTt

I. THE PETITION DOES NOT PRESENT AN

IMPORTANT LEGAL ISSUE ON WHICH

THERE IS CONFLICTING AUTHORITY.

A. The Courts Uniformly Agree that the

Testimony of Victim Eyewitnesses Is

Generally Sufficient to Establish Prob-

able Cause to Arrest.

Petitioner proposes the novel theory that the

testimony of an alleged rape victim, a victim eye-

witness, is insufficient to establish probable cause for

an arrest of the alleged rapist. In Petitioner’s world,

crimes that have only two eyewitnesses — the perpe-

trator and the victim — would frequently be impos-

sible to investigate and prosecute. Petitioner proposes

that, as a matter of law, the testimony of a victim

eyewitness, such as a victim of rape, cannot, on its

own, suffice to establish probable cause. Petitioner’s

proposed interpretation of the Fourth Amendment

is contrary to the long-standing precedents of the

federal courts throughout the United States and

would leave many victims of sexual assault without

recourse cr protection.

The general rule in courts throughout the United

States is that the testimony from the alleged victim of

a crime is ordinarily sufficient to establish probable

cause. See, e.g., Acosta v. Ames Deptt Stores, Inc., 386

F3d 5, 10 (1st Cir. 2004) (“The uncorroborated

testimony of a victim or other percipient witness,

standing alone, ordinarily can support a finding of

14

probable cause.”); Sharrar v. Felsing, 128 F.3d 810,

818 (3d Cir. 1997) (“When a police officer has received

a reliable identification by a _ victim of his

or her attacker, the police have probable cause to

arrest.”); United States v. Shaw, 464 F.3d 615, 623

(6th Cir. 2006) (“An eye witness’s statement that he

or she saw a crime committed or was the victim of a

crime is generally sufficient to,establish probable

cause.”); Reynolds v. Jamison, 488 F.3d 756, 765 (7th

Cir. 2007) (“We have repeate2!y held that a complaint

of the putative victim or single witness is generally

sufficient to establish probable cause, unless the offi-

cer has a reason to question the witness’ account.”);

Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987)

(“Clearly, law enforcement officers are entitled to rely

on information supplied by the victim of a crime,

absent some indication that the information is not

reasonably trustworthy or reliable.”).” As this Court

has pointed out,

[E]ven if we entertain some doubt as to an

informant’s motives, his explicit and detailed

> See also Schramm v. State, 648 S.E.2d 392, 395 (Ga. Ct.

App. 2007) ‘“testimony of a single witness is sufficient to

establish a fact”); Glover v. State, 102 S.W.3d 754, 759 (Tex.

App. — Texarkana 2002, pet. ref’d) (“One witness providing

circumstantial evidence of each element satisfies the State’s

burden with respect to legal sufficiency.”); Messenger v. Siate,

2008 Tex. App. LEXIS 4357, 7 (Tex. App. - Fort Worth 2008, no

pet.) (“despite the lack of physical evidence, M.H. provided

sufficient testimony, [by stating that the assailant had

intercourse with her without her consent,] to show that a sexual

assault had occurred.”).

15

description of alleged wrongdoing, along with

a statement that the event was observed

firsthand, entitles his tip to greater weight

than might otherwise be the case.

Illinois v. Gates, 462 U.S. 213, 234 (1983).

Quinn, however, attempts to confuse the issue by

arguing that the testimony of victims of sexual as-

sault should be subject to the higher level of scrutiny

sometimes applied to unknown informants. See, e.g.,

Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th

Cir. 1985) (“the skepticism and careful scrutiny

usually found in cases involving informants, some-

times anonymous, from the criminal] milieu, is appro-

priately relaxed if the informant is an identified

victim or ordinary citizen witness.”); Caldarola uv.

Calabrese, 298 F.3d 156, 165 (2d Cir. 2002). In

support of his new restriction on the ability of police

officers to investigate sexual assaults, Quinn cites

two cases: Hale v. Fish, 899 F.2d 390 (5th Cir. 1990),

and Ripson v. Alles, 21 F.3d 805 (8th Cir. 1994).

Quinn’s reliance on Hale and Ripson highlights why

there is no issue in this case worth reviewing.

First, Hale is a published Fifth Circuit case,

whereas the decision in the case at bar is an unpub-

lished Fifth Circuit case. Even assuming, arguendo,

that Hale and the Fifth Circuit’s decision in this case

conflict, this Court should wait for the Fifth Circuit

to resolve the conflict among its own precedents.

Restraint makes even more sense in the context of

this case since the decision in the case at bar is an

16

unpublished opinion that has no precedential author-

ity within the Fifth Circuit. See 5TH Cir. R. 47.5.4

(unpublished opinions are not precedent). Petitioner

contends that Hale represents the correct statement

of the law. The Fifth Circu:.’s decision in the case at

bar, even assuming it contradicts Hale, does not

change that Hale, and not the decision in this case, is

binding precedent within the Fifth Circuit.

Second, Hale does not conflict with the Fifth

Circuit’s decision in the case at bar. Hale was an

unusual case, involving an extensive investigation

into allegations that individuals acting on behalf of

the Federal Bureau of Investigation (FBI) had kid-

napped a parolee on the pretense of seeking his assis-

tance for an on-going FBI investigation of alleged

corruption in the Bossier County District Attorney’s

Office. See 899 F.2d at 392-98. The local sheriff’s

office sought and received a warrant for the arrest

of the alleged kidnappers based on “false and mis-

leading statements, as well as material omissions

relevant to the probable cause determination.” Jd. at

398. In essence, the testifying officers had conducted

an extensive investigation into the kidnapping allega-

tion by the parolee and had found no evidence to

support the claim and a considerable amount of evi-

dence calling into doubt the parolee’s story. Jd. at 399-

400. The Court noted that the parolee “had ample

motive to lie [because he] was being prosecuted by the

Bossier County District Attorney's Office, the subject

of the alleged kidnappers’ investigation.” Jd. at 399.

In light of the overwhelming evidence available to the

17

arresting officers undercutting the reliability of the

parolee’s testimony, his statement was “lacking in the

usual reliability given victim eyewitnesses.” IJd.; see

also id. (it is “generally true” that no evidence of

veracity is necessary to establish probable cause if

the witness is a “victim eyewitness”).

Hale, like the decision in the case at bar, and in

accord with precedent throughout the United States,

held that the testimony of a victim eyewitness is

generally sufficient to establish probable cause for an

arrest. Hale, 899 F.2d at 399; App. 13-14. While the

testimony of a victim eyewitness is not sufficient

when “the witness has a motivation to lie, or there is

sornae other indication that the information is not

reliable,” Hale, 899 F.2d at 399, the general rule is

that the testimony of victim eyewitnesses can support

probable cause. The undisputed summary judgment

evidence in the case at bar is that, at the time he

signed the probable cause affidavit, Officer Quiles did

not know of any evidence suggesting that Katie might

have had a motive to lie about the alleged rape. See

App. 14.

Finally, Ripson is distinguishable from the case

at bar in three important respects. First, Ripson did

not involve the testimony of a victim eyewilness. The

testimony in Ripson was from Melody, Ripson’s

estranged wife, and from Melody’s live-in boyfriend.

They were the non-victim, non-eyewitnesses who

reported to the police their belief that Ripson had

sexually abused his two-year-old daughter. See 21

F.3d at 806.

18

Second, in Ripson, the officer knew that Mr.

Ripson and his estranged wife, Melody, were involved

in a custody dispute over their daughter. /d. at 808.

In the case at bar, Officer Quiles had no such similar

knowledge which would call into question the credi-

bility of Petitioner's daughter. Officer Quiles had no

prior knowledge of any allegedly bitter divorce or

custody battle between Petitioner and Houston.

Third, in Ripson, the County Attorney had ad-

vised the officer to “keep investigating.” The County

Attorney in Ripson was surprised to learn that Mr.

Ripson had been arrested by the officers a mere 12

hours after the County Attorney had told the officers

to “keep investigating.” Jd. at 807. No such similar

circumstance exists in the case at bar.

Assistant Police Chief Alles arrested Ripson

based on the testimony of Melody and her live-in

boyfriend, despite the lack of medical evidence and

despite his knowledge that Melody and Ripson were

currently engaged in a custody dispute. /d. at 808. In

summary, Ripson did not involve the testimony of any

viclim eyewitnesses and the arresting officer in

Ripson had reason to doubt the veracity of Melody’s

and her live-in boyfriend’s testimony due to the cus-

tody dispute. In contrast, this case involves the testi-

mony of a victim eyewitness, Petitioner’s daughter,

who repeatedly provided detailed statements about

how Petitioner had raped her on two occasions. More-

over, While Petitioner alleges that there was an on-

going child support dispute that calls into question

his daughter’s veracity, it is undisputed that Officer

19

Quiles was unaware of the child support dispute until

after the arrest. See App. 14.

B. There Is No Important Issue in this

Case: Petitioner Simply Failed to Set

Forth Evidence in Response to Officer

Quiles’ Motion for Summary Judg-

ment,

1. Petitioner Misguidedly Contends

that a Civil Rights Plaintiff Is Not

Required to Provide Evidence in

Response to a Motion for Summary

Judgment Based on Qualified Im-

munity.

Petitioner’s argument, at its core, is that he

should not have been required to provide evidence in

response to Officer Quiles’ motion for summary judg-

ment based on qualified immunity. Petitioner con-

tends that the lower courts should have assumed the

facts as alleged in Petitioner’s complaint. See Pet. Br.

9 and n.3.° Petitioner’s argument is without merit

and without precedent.

* Petitioner describes the first prong of the qualified immu

nity analysis as whether “the plaintiff’s complaint properly

allege|s| violation of a Constitutional right.” Pet. Br. 9. Peti-

tioner further explains that “[t)his is the same question ad-

dressed in a motion to dismiss under FRCP 12(b)(6).” Pet. Br. 9

n.3; see also Pet. Br. 2 (“The first question is similar to the

standard under FRCP 12(b)\(6) and asks whether the plaintiff

has pleaded sufficiently to support a cause of action for violation

(Continued on following page)

20

Public officials are entitled to assert qualified

immunity under both Federal Rule of Civil Procedure

12 in a motion to dismiss and Rule 56 in a motion for

summary judgment. See Behrens v. Pelletier, 516 U.S.

299, 306-08 (1996); see also Pearson v. Callahan, ___

U.S. __, 129 S. Ct. 808, 815-16 (2009).

Unless the plaintiff’s allegations state a

claim of violation of clearly established law,

a defendant pleading qualified immunity is

entitled to dismissal before the commence-

ment of discovery. Even if the plaintiff’s

complaint adequately alleges the commission

of acts that violated clearly established law,

the defendant is entitled to summary

judgment if discovery fails to uncover evi-

dence sufficient to create a genuine issue as

to whether the defendant in fact committed

those acts.

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

In order to overcome the assertion of qualified

immunity in a motion to dismiss, the facts that a civil

of his constitutional mghts.”); id. at 13 (°The proper inquiry for

qualified immunity only asks whether the state of the law is

such that an officer of reasonable competence would know that

what the plaintiff Aas accused the defendant of doing is

unconstitutional.”); id. at 15 (“whether the plaintiff has fulfilled

prong 1 by pleading facts supporting a viable cause of action”)

This Court recently noted in Pearson that the first prong

of qualified immunity analysis is “whether the facts that a

plaintill has alleged (see Fed. Rules Civ. Proc. 12(b6), (c)) or

shown (see Rules 50, 56) make out a violation of a constitutional

nght.” 129 S. Ct. 815-16

21

rights plaintiff has alleged must make out a violation

of a constitutional right. Pearson, 129 S. Ct. at 815-

16; Ashcroft v. Iqbal, _. U.S. ___, 129 S. Ct. 1937,

1949 and 1953-54 (20U9) (applying normal Rule

12(b)(6) standard to motions to dismiss based on

qualified immunity). In order to overcome the asser-

tion of qualified immunity in a motion for summary

judgment, the facts that a civil rights plaintiff has

shown must make out a violation of a constitutional

right. Pearson, 129 S.Ct. at 815-16. As this Court

explained in Behrens, “On summary judgment. how-

ever, the plaintiff can no ionger rest on the pleadings,

see Fed. Rule Civil Proc. 56, and the court looks to

the evidence before it (in the light most favorable

to the plaintiff) when conducting the Harlow [v.

Fitzgerald, 457 U.S. 800 (1982)] inquiry.” 516 U.S. at

309.

Petitioner, however, proposes that the Fifth

Circuit is a rogue court of appeals because it expected

Petitioner to provide evidence in response to Officer

Quiles’ motion for summary judgment. See Pet. Br. 2,

9 and 13; see also App. 17 (“Quinn has failed to present

any competent summary judgment evidence that

Quiles withheld relevant evidence from the magis-

trate judge.”); id. at 14 (“there is no evidence”); id. at

16 (“there is no evidence”).

* The Fifth Circuit writes, “Katie’s vested interest in the

child support dispute between Quinn and Laurie Houston raises

a more serious question about her reliability, but there is no

evidence that Quiles was aware of the dispute at the time of the

(Continued on following page)

y 9

Officer Quiles moved for summary judgment

based on qualified immunity. See App. 3 In response,

Petitioner was required to “set out specific facts

showing a genuine issue for trial.” FED. R. Civ. P.

56(e)(2). Petitioner’s lack of evidence or failure to

provide that evidence to the district court is not a

basis for requesting that this Court review the Fifth

Circuit’s decision. There is no new, novel or con-

flicting issue in this case. A plaintiff re sponding to a

motion for summary judgment must fulfill his

obligation to respond under Rule 56. That obligation

to respond exists even if the plaintiff alleges civil

rights violations and even if the defendant asserts

qualified immunity. Petitioner failed to provide com-

petent summary judgment evidence on the question of

whether Officer Quiles knew about any of the alleged

exculpatory evidence when he signed the probable

cause affidavit. Petitioner failed to show that there

was a fact question for the jury and, as a result, the

district court and Fifth Circuit held that Officer

Quiles was entitled to summary judgment.

arrest. There is no evidence that Quinn [sic] disregarded any

exculpatory evidence at the time of the arrest.” App. 14. While

the second sentence quoted refers to Petitioner Quinn, it is clear

from the context that the Fifth Circuit intended to state that

there is no evidence that Officer Quiles disregarded any

exculpatory evidence at the time of the arrest.

23

2. Petitioner Attempts to Limit the

Qualified Immunity Defense to the

Pleadings and Prohibit the Use of

the Defense Based on the Facts.

Petitioner erroneously claims that the qualified’

immunity defense is limited to analysis of the

pleadings and is not available as a defense based on

the evidence developed during discovery or at trial.

Petitioner states,

[T]he proper legal inquiry for qualified im-

munity purposes does not consider whether

the defendant’s conduct was or was not

factually or “objectively” reasonable. The

preper inquiry for qualified immunity only

asks whether the state of the law is such

that an officer of reasonable competence

would know that what the olaintiff has

accused the defendant of doing is uncon-

stitutional.

Pet. Br. 13 (emphasis in original).

Petitioner’s novel interpretation of qualified im-

munity conflicts with this Court’s precedents in

Mitchell, Behrens, and Pearson. As shown above, this

Court has consistently held that a civil mghts

plaintiff, like any other plaintiff, is required to pro-

vide evidence that creates a fact question in order to

overcome a motion for summary judgment and pro-

ceed to trial. At the summary judgment stage, the

plaintiff can no longer rest on the pleadings. Behrens,

516 USS. at 309.

24

While Quinn’s petition for writ of certiorari is

muddled in its arguments, it appears that Petitioner

may be confusing reasonableness under the Fourth

Amendment with reasonableness under qualified

immunity. Quinn would noi be the first to make this

mistake. See Saucier v. Katz, 533 U.S. 194, 197 (2001)

(holding that Ninth Circuit erroneously combined

Fourth Amendment reasonableness with qualifi:d

immunity reasonableness). However, Quinn’s mistake

was resolved by this Court in Saucier and Brosseau v.

Haugen, 543 U.S. 194 (2004), when this Court held

that whether a police officer acted reasonably in light

of clearly established law is a separate inquiry from

whether the officer’s use of force was reasonable

under the circumstances. Even assuming the officer’s

use of force was unreasonable, the officer can still be

entitled to qualified immunity if he could have rea-

sonably believed that his use of force was reasonable

in light of clearly established law. Saucier, 533 U.S.

at 202; Brosseau, 543 U.S. at 198-99.

As in Saucier and Brosseau, there are two rea-

sonableness inquiries in this case: (1) whether the

facts and circumstances known to the officer could

justify a reasonably prudent police officer to believe

that the suspect committed an offense, see Michigan

vu. DeFillippo, 443 U.S. 31, 37 (1979); and (2) whether

the officer’s conduct was objectively reasonable in

light of the legal rules that were clearly established

at the time it was taken. Pearson, 129 S. Ct. at 822.

As this Court explained in Saucier, the general

Fourth Amendment requirement of reasonableness

25

does not ciearly establish that all actions that are

unreasonable under the Fourth Amendment are clearly

established for purposes of qualified immunity. 533 U.S.

at 201-02; see also Brosseau, 543 U.S. at 198-99.

The Fifth Circuit followed the direction of this

Court and considered Fourth Amendment reason-

ableness and qualified immunity reasonableness as

separate inquiries. The Fifth Circuit chose not to

decide the Fourth Amendment reasonableness issue

because the qualified immunity reasonableness issue

was fairly straightforward. Cf. Pearson, 129 S. Ct. at

820 (providing reasons for deciding qualified immu-

nity on the clearly established prong without deciding

whether there was a constitutional violation). The

‘testimony of victim eyewitnesses is generally s uffi-

cient to establish probable cause and there was no

evidence that Officer Quiles had evidence calling into

serious question Katie’s allegations against Quinn.

While Petitioner is confused about qualified immu-

nity, the courts of appeals are not. There is no issue

worthy of review in Petitioner’s clai. ns against Officer

Quiles.

C. Petitioner Misrepresents the _ Fifth

Circuit’s Application of Qualified Im-

munity in a Vain Attempt to Create the

Illusion of a Conflict with Prior Prec-

edent.

Petitioner misrepresents the Fifth Circuit’s quali-

fied immunity analysis and twists statements out of

26

context in a vain attempt to create the illusion of a

conflict between the Fifth Circuit’s decision and other

precedents. Petitioner alleges that the Fifth Circuit

“failed t« follow this Court’s settled rules related to

quatiied immusdty.” Pet. Br. 5. Petitioner claims that

the ruling below “is in direct conflict with every

qualified immunity dec'sion ever made by this Court

and with the decisions of every other circuit court of

appeals that has addressed the same issues.” Id.

Moreover, Petitioner states that this Court’s “recent

efforts to clarify the qualified immunity decision-

making process have seemingly fallen on deaf ears in

the Fifth Circuit.” Pet. Br. 10. The Fifth Circuit

supposedly “completely ignores the proper method-

ology found in this Court’s case law.” Id. The principal

flaw in Petitioner’s allegations, however, is that they

are false. What Petitioner lacks in accuracy and

honesty, he attempts to make up with bravado and

strong rhetoric. Petitioner fails to accurately describe

this Court’s qualified immunity precedents, as well as

the Fifth Circuit’s decision in the case at bar. Peti-

tioner’s description of qualified immunity analysis is

not grounded in this Court’s precedent. But regard-

less, Petitioner’s description of the Fifth Circuit’s

decision is so inaccurate and misleading as to make it

particularly difficult to determine what aspect of the

actual opinion Petitioner wants this Court to review.

27

1. Even a Cursory Glance at the Fifth

Circuit’s Qualified Immunity Analysis

Demonstrates that it Relies on this

Court’s Recent Precedents.

Petitioner claims that the Fifth Circuit, “as a

matter of practice, completely ignores the proper

methodology found in this Court’s case law” regarding

qualified immunity. Pet. Br. 10. A quick comparison,

however, of the qualified immunity standard as

enunciated by the Fifth Circuit in this case compared

with this Court’s recent decision in Pearson helps to

illustrate Petitioner’s quixotic approach to qualified

immunity. In Pearson, this Court explained,

In Saucier, 533 U.s5. 194, 121 S. Ct. 2151,

150 L. Ed. 2d 272, this Court mandated a

two-step sequence for resolving government

officials’ qualified immunity claims. First, a

court must decide whether the facts that a

plaintiff has alleged (see Fed. Rules Civ.

Proc. 12(b)(6), (c)) or shown (see Rules 50, 56)

make out a violation of a constitutional right.

538 US., at 201, 121 & Ct. 2161, 150

L. Ed. 2d 272. Second, if the plaintiff has

satisfied this first step, the court must decide

whether the mght at issue was “clearly

established” at the time of defendant’s alleged

misconduct. Jbid. Qualified immunity is

applicable unless the official’s conduct vio-

lated a clearly established constitutional

right. Anderson [v. Creighton, 483 U.S. 635,

640 (1987)).

Id. at 815-16.

28

In this case, the Fifth Circuit described the same

two-step sequence as follows:

In Saucier v. Katz, 533 U.S. 194 (2001), the

Supreme Court mandated a two-step sequence

for resolving government officials’ qualified

immunity claims: first, a court must decide

whether the facts alleged or shown are suffi-

cient to make out a violation of a consti-

tutional mght; second, the court must decide

whether the right at issue was “clearly

established” at the time of the defendant’s

alleged misconduct. If the official’s conduct

violated a clearly established right, then

qualified immunity is not applicable.

App. 8-9.

While the Fifth Circuit’s enunciation of qualified

immunity in this case is drawn almost verbatim from

this Court’s recent opinion in Pearson, Petitioner pro-

poses that the two-step sequence should be described

as follows:

Prong 1. Does the plaintiff’s complaint

properly allege violation of a Con-

stitutional right?

Prong 2. Was the iaw, at the time of the

official’s conduct, clearly established

enough to give the defendant “fair

warning” that the conduct he is

accused of taking violated Plain-

tiff’s Constitutional mghts?

29

Pet. Br. 9 (citing Saucier, 533 U.S. at 201-03; Hope v.

Pelzer, 536 U.S. 730, 739-40 (2002)). Petitioner’s two-

step sequence is not the standard enunciated by this

Court. While Petitioner claims that this Court’s “re-

cent efforts to clarify the qualified immunity decision-

making process have seemingly fallen on deaf ears in

the Fifth Circuit,” it is the Fifth Circuit’s description

of the two-step sequence that cor:forms to this Court’s

2009 decision in Pearson.

2. The Fifth Circuit Specifically Re-

jected the Alleged Error Petitioner

Claims Is Readily Apparent in the

Fifth Circuit’s Decision.

Petitioner falsely alleges that the Fifth Circuit

erred by using a “unique and erroneous methodology”

involving two sub-parts in the second (clearly estab-

lished) prong of the qualified immunity analysis. See

Pet. Br. 10. In support of Petitioner’s misleading

claim, Petitioner selectively quotes from the following

footnote in the Fifth Circuit’s decision:

This circuit has at times characterized its

approach in qualified immunity cases as a

three-pronged inquiry in which the tradi-

tional second prong is divided into two

separate and distinct inquiries: whether the

right was clearly established and whether

the officer’s conduct was objectively reason-

able. The Supreme Court's recent case law

makes it clear that these inquiries are more

appropriately viewed not as separate and

30

distinct, but as two sides of the same

analytical coin.

App. 10 n.2 (citations removed). Petitioner leaves out

the last sentence of the quote; the sentence in which

the Fifth Circuit panel indicates that it is modifying

its approach to qualified immunity in order to avoid

dividing the second prong into sub-parts. Petitioner,

however, proposes that it is “readily apparent” that

the Fifth Circuit erred by dividing the second prong

into two sub-parts. See Pet. Br. 10. Once again, it is

clear that it is the Fifth Circuit that is working to

conform its analysis to that of this Court while

Petitioner is tilting at windmills.

Il. THE OUTCOME OF THIS APPEAL HAS

NO PRECEDENTIAL EFFECT AND WOULD

NOT AFFECT THE OUTCOME OF THIS

LITIGATION.

A. The Fifth Circuit’s Decision is Unpub-

lished and has No Precedential Effect.

Petitioner claims that the Fifth Circuit’s decision

“confuses the law [and] leaves future courts with a

decision they could ‘follow’ potentially leading to even

* This Court recently explained that the second or clearly

established prong “turns on the ‘objective legal reasonableness of

the action, assessed in light of the legal rules that were clearly

established at the time it was taken.” Pearson, 129 S. Ct. at 822

(quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).

31

more erroneous decisions on this important Consti-

tutional issue.” Pet. Br. 6. As shown already, it is

Petitioner who has confused the law, not the Fifth

Circuit. However, even assuming the Fifth Circuit

had confused the law, this case would not be a good

decision from which to clarify the law of qualified

immunity.

First, much of the Fifth Circuit’s decision turns

on the fact that Petitioner failed to present summary

judgment evidence sufficient to establish a fact ques-

tion as to whether Officer Quiles knew of the alleg-

edly exculpatory facts when he signed the probable

cause affidavit. As a result, the decision is fact-bound

and unlikely to have an effect on later decisions.

Second, the decision is unpublished. See App. 2

n.*. In the Fifth Circuit, unpublished decisions “are

not precedent, except under the doctrine of res

judicata, collateral estoppel, or law of the case.” 5TH

Cir. R. 47.5.4. The only parties that the Fifth Cir-

cuit’s decision is going affect are the parties to the

decision — Petitioner and the various respondents.

There is no reason to review this case.

B. Reversal of the Fifth Circuit’s Decision

Would Not Affect the Outcome of the

Case Because a Neutral Magistrate

Issued the Arrest Warrant.

Petitioner would not benefit from reversal of the

Fifth Circuit’s decision because Officer Quiles’ probable

cause affidavit was reviewed by a neutral and

32

detached magistrate and the magistrate issued the

arrest warrant. Cf. Gates, 462 U.S. at 236-37." Even

assuming this Court reversed the decision of the Fifth

Circuit, Officer Quiles would still be entitled to

summary judgment because the warrant issued by

the magistrate constitutes an independent justifi-

cation for the arrest that cuts off any liability on the

part of Officer Quiles unless he concealed evidence.

See Malley v. Briggs, 475 U.S. 335, 344-45 (1986)

(‘Only where the warrant application is so lacking in

indicia of probable cause as to render official belief in

its existence unreasonable, will the shield of immu-

nity be lost.”); see also App. 7. As the Fifth Circuit

explained, and Quinn has not challenged in his

petition, “Quinn has failed to present any competent

summary judgment evidence that Quiles withheld

relevant evidence from the magistrate judge.” App.

17. Quinn argued on appeal before the Fifth Circuit

that the court of appeals should reverse the decision

of the district court because Officer Quiles allegedly

violated the Fifth and Fourteenth Amendments by

engaging in judicial deception when applying for the

warrant. See App. 11. The Fifth Circuit affirmed the

decision of the district court entering summary

' See also Massachusetts v. Sheppard, 468 U.S, 981, 990

(1984) (officer entitled to rely on warrant); Groh v. Ramirez, 540

U.S. 551, 564 (2004) (officer not entitled to rely on warrant

because detect 1s apparent on face of warrant).

33

judgment on Quinn’s Fifth and Fourteenth Amend-

ment claims. See App. 17. Quinn has not sought

review of that portion of the Fifth Circuit’s decision.

Since the Fifth Circuit affirmed the holding that

Quiles did not withhold relevant evidence from the

magistrate judge, the warrant issued by the magis-

trate forecloses Petitioner’s Fourth Amendment claim

against Officer Quiles. This case does not raise any

important issues as to Fourth Amendment juris-

prudence, qualified immunity jurisprudence or even

the merits of this litigation.

+

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

THOMAS P. BRANDT

Counsel of Record

JOHN F. ROEM, III

JOSHUA A, SKINNER

FANNING HARPER MARTINSON

BRANDT & KUTCHIN, P.C.

Two Energy Square

4849 Greenville Ave., Suite 1300

Dallas, Texas 75206

(214) 369-1300 Telephone

Attorneys for Respondent

Jose Quiles