Opposition Brief — Morris v. Swofford

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No. 10-712 et O93 ded

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Supreme Court of the United States

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WILLIAM MORRIS, JR. and RONALD REMUS,

Petitioners,

‘:

ROBERT G. SWOFFORD and SHARON SWOFFORD,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF OF THE SWOFFORDS IN OPPOSITION

ALBERT F. TELLECHEA

Counsel of Record

LAURIE WEBB DANIEL

HOLLAND & KNIGHT LLP

200 South Orange Avenue

Suite 2600

Orlando, Florida 32801

(407) 425-8500

albert.tellechea@hklaw.com

Counsel for Respondents

Robert and Sharon Swofford

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

The questions presented by the Deputies are

premised on incorrect or disputed facts. For example,

they assume that the Deputies entered the Swoffords’

property in search of “felony” suspects, but the record

reflects that the suspects at most committed a mis-

demeanor and that the Deputies were not in hot

pursuit. The Deputies’ questions also presume that

the Deputies shot Swofford “in self-defense,” but

evidence shows that they acted in response to an

inquiry from Swofford who — with his gun pointed to

the ground and blinded by the Deputies’ flashlights —

simply said to the Deputies, “Halt!” and “Who are

you?” Furthermore, the Deputies’ questions omit the

undisputed facts that the Deputies knew that they

were at the Swoffords’ residence and that Swofford

was not one of the suspects they were pursuing. And

as conceded by the Deputies, their first question

addresses an issue never reached by the circuit court.

Thus, the only question raised by the Eleventh Cir-

cuit’s unpublished opinion in this case is this:

Are deputies entitled to qualified im-

munity as a matter of law where evidence

shows that they entered a residential backyard

unannounced late at night and, knowing that

the innocent homeowner was not their suspect,

gunned him down without warning when he

asked — with his pistol pointed to the ground and

blinded by their flashlights — who they were?

The courts below correctly answered, “no.”

ll

TABLE OF CONTENTS

Page

Counterstatement of Questions Presented ......... i

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Counterstatement of the Case......................0ecee08 1

1. The Deputies’ non-exigent search for the

GRICE arias cesisasin sa iticinchincei eee 2

2. The Deputies’ knowledge of the residence.... 2

3. The Deputies’ encounter with Swofford ...... 3

4. The Deputies’ failure to warmn.................... 7

Reasons for Denying the Petition........................ 8

1. This case is not a good vehicle for decid-

ing the first question — whether the cir-

cumstances surrounding the _ shooting

should be ignored — because the Eleventh

Circuit’s unpublished opinion did not ad-

dress that issue, which does not warrant

review by this Court in any event............. 9

2. The second question — whether a warning

is required before a shooting in “self-

defense” — rests on a distorted descrip-

tion of the evidence and does not present

an errant ruling of law

BE: COE RP OE NRE LARTER Smee Hin ied

ill

TABLE OF AUTHORITIES

Page

CASES

Abraham uv. Raso,

183 F.3d 279 (3d Cir. 1999) ooo ceccecccceseeeeeeeeeee 16

Anderson v. Creighton,

8 0 0 ee 20

Bella v. Chamberlain,

24 F.3d 1251 (10th Cir, 1994)............ ss aseacasduasntesect 12

Billington v. Smith,

292 F.3d 1177 (9th Cir, 2002)... ccccccceceeecereneees 12

Brosseau v. Haugen,

8D re 19

Brower v. County of Inyo,

BO) I re 15

Carter v. Buscher,

973 F.2d 1328 (7th Cir, 1992) ooo ccc ccccseeeeeeeees 1]

Chappell v. City of Cleveland,

585 F.3d 901 (6th Cir. 2009) .............ssscccssesssceesseees ll

Claybrook v. Birchwell,

274 F.3d 1098 (6th Cir. 2001) ............cccccece 10, 13, 15

Cole v. Bone,

993 F.2d 1328 (Sth Cir, 19938) ..................csscerees 11, 14

Dickerson v. McClellan,

101 F.Sd 1151 (6th Cir, 1996)......................00s0000 9,11

Floyd v. City of Detroit,

518 F.3d 398 (6th Cir. 2008) ......................0..66. 14,15

Graham v. Connor,

TR CAGED ook... csnsearsessesiversoocsnsnses 9,11,15

TABLE OF AUTHORITIES — Continued

Page

Greenidge v. Ruffin,

OST Fee FO CET Cit, ROB) eviccccasesseccccoscesnsessrsncenes Ll

Hope v. Pelzer,

BO By ie 0 CD ek sidenkveskddatslencssceianiorereniendaiaesl 20

Medina v. Cram,

262 F.8d 1124 (10th Cir. 2001).............. PaO RAR PEO ee 13

Nelson v. County of Wright,

162 F.3d 986 (8th Cir. 1998) ...................08. 11, 14, 15

Plakas v. Drinski,

19 F.3d 1143 (7th Cir. 1994)..... jeddudh chat desaneas cuneate

Powell v. Nevada,

Bk Sl cee FO CE) cinviccccvcsccaceveveraacesécsnsencapss dts aaa GF

St. Hilatre v. City of Laconia,

2 ce Ee CRG Cre BED) on cwnaxencccadaccaucsuecasexeuces 13, 16

Tennessee v. Garner,

OF Bra Bt cckktsinxincchicadecsccuddeteestiasbecusaant passim

U.S. v. Lanier,

BP EF. ee a OT Picteckececonccteleccliakceterenticaseeiécasieannl 20

CONSTITUTION

LF 2o. CG, IN EY essa os viscsecacssssesace Scalaateeaaa passim

STATUTES AND RULES

Oe Tire I Wi know ntvicaa cess cncsecsnasnespatoaieviceasiens passim

Supreme Court Rule 10................ccsccssecssscovevees 8, 10, 18

Srapprnmine Cutr’ FRI 1G nics isssicsscesccssceccocssereccsstcersesnices ]

Respondents, Robert Swofford (“Swofford”) and

his wife, Sharon Swofford (collectively, the

“Swoffords”), submit this opposition to the Petition for

a Writ of Certiorari (“Petition”) filed by two deputies

of the Seminole County Sheriff’s Office (“SCSO”),

William Morris, Jr. (“Morris”) and Ronald Remus

(“Remus”) (collectively the “Deputies”), to show why

the Petition should be denied.

”

BRIEF OF THE SWOFFORDS

IN OPPOSITION

This case is not a good vehicle for addressing the

questions presented by the Deputies. The first issue —

whether the circumstances surrounding the shooting

should be ignored — was not reached by the Eleventh

Circuit. The second issue rests on a distorted fact-

based description of the record and does not present

any new or errant ruling of law. In light of the factual

disputes going to the heart of this case, the Deputies’

request for qualified immunity as a matter of law

does not implicate public policy concerns or otherwise

warrant review by writ of certiorari.

+ —_

COUNTERSTATEMENT OF THE CASE

Pursuant to Supreme Court Rule 15, the

Swoffords offer this Counterstatement of the Case

to respond to misstatements relating to the following

four key aspects of the event in question: (1) the

2

Deputies’ non-exigent search for suspects; (2) the

Deputies’ knowledge of the residence; (3) the Depu-

ties’ encounter with Swofford; and (4) the Deputies’

failure to warn before shooting.

1. The Deputies’ non-exigent search for the

suspects

The Deputies assert that they were searching for

felony suspects. (Pet. 2, 4). But the Deputies’ own

police expert testified that, at most, the suspects had

committed the crime of trespassing — a misdemeanor

in Florida. (Grossi Depo. 171:25-172:15 (Doc. 124)).

The suspects were not reported to be armed. (Remus

Depo. 117:4-14, 172:12-24 (Doc. 97)). And the search

was not exigent. In fact, Morris stated that he was

not in a hurry to search for the suspects. (Morris

Depo. 120:13-18, 120:25-121:2 (Doc. 96)).

2. The Deputies’ knowledge of the residence

The Deputies characterize the Swoffords’ property

as an “abandoned commercial area” and “open field,”

but the record shows they knew the property was

residential and that they were in the Swoffords’

backyard at the time of the shooting. Swofford had

previously asked SCSO to patrol his property because

of repeated trespasses and attempted burglaries and

had informed SCSO that he and his property care-

takers routinely checked the property armed. Conse-

quently, SCSO had conducted 45 area patrols of the

Swoffords’ property in the two months before the

shooting. (Doc. 184-33; Swofford Depo. J378:11-179:18,

182:6-19 (Doc. 95); Area Patrol Reports (Doc. 184-34)).

In fact, Remus himself personally checked the proper-

ty eleven times before the shooting, including a patrol

two to three hours before the shooting. (Area Patrol

Reports (Doc. 184-34)). Remus’s Area Patrol Reports

stated “checked residence” or “area patrol completed.”

Remus testified that he thought the suspects might

have fled “through the [Swoffords’] yard.” (Remus

Depo. 118:14-20; 128:5-13 (Doc. 97)). The Deputies

had access to all of the Area Patrol Reports of the

Swoffords’ property on their portable computers.

(Remus Depo. 147:3-6 (Doc. 97)).

The Deputies have also described features of the

Swoffords’ property out of context to create the im-

pression that they entered a large, overgrown com-

mercial area. (Pet. 8). Yet the property is in a

residential neighborhood and was enclosed by a six-

foot wooden privacy fence, a chain-link fence, and

woods. (Pet. App. 3, 4; Doc. 89-4 at 4; Doc. 89-5 at 50;

Remus Depo. 128:5-13 (Doc. 97)). The Swoffords and

their caretakers testified that the property was

mowed regularly and gardened and the fence around

the property was repaired as needed. (Sharon

Swofford Aff. 9 6 (Doc. 188-9); Buccholz Aff. 9 4 (Doc.

188-10); Velez Aff. | 6 (Doc. 188-11); Swofford Depo.

175:5-176:24 (Doc. 95)).

3. The Deputies’ encounter with Swofford

The record shows that, awoken by his dog bark-

ing at 2:25 a.m., Swofford picked up his gun, locked

the house, and went outside to inspect his property.

(Swofford Depo. 198:10-24 (Doc. 95)). It is undisputed

that Swofford, a former Army Captain, did not put his

gun into battery as necessary for it to shoot. (/d. at

32:3-34:3; Swofford Aff. 95 (Doc. 188-1); Pet. App. 9).

He checked his garage, doors, and windows and then

knelt down holding his gun in a two-handed grip

pointed at the ground to observe the back of his

property that abutted the apartment complex.

(Swofford Depo. 206:17-208:22 (Doc. 95)). After a few

minutes, he heard someone on the other side of his

fence say, “This looks like a good place to get through

here,” and then heard the squealing sound of boards

being pulled off the fence. Thereafter, two unknown

people — the Deputies — came through his fence.

(Swofford Depo. 210:25-211:25, 212:4-13 (Doc. 95)).

What happened next is in dispute. According to

Swofford, he did not “suddenly confront” the Depu-

ties. Swofford watched the flashlight beams from two

unknown persons wander through his property in the

dark. (Swofford Depo. 213:14-215:16 (Doc. 95)). There

is evidence that when they neared him, Swofford

yelled, “Halt,” (rd. at 231:16-22, 232:1-25 (Doc. 95)),

and “Hey, hey you, who are you?” (Doc. 89-5 at 64).

There also is evidence that at the moment of the

encounter, Swofford was crouching or kneeling and

never stood upright or ran towards the Deputies.

(Swofford Depo. 231:23-232:25 (Doc. 95); contra Pet.

10 n. 1). The Deputies shined their flashlights at

Swofford, blinding him, and realized that he was not

one of the suspects for whom they were searching.

(Pet. 2, 9; Remus Depo. 174:23-25 (Doc. 97); Morris

Depo. 154:25-155:11 (Doc. 96)). Not only did the

Deputies have time to realize that Swofford was not

their suspect, as they later admitted, but Morris also

admitted that before he shot Swofford, he believed

that Swofford was the homeowner. (Morris Depo.

154:25-155:11 (Doc. 96)). Additionally, Remus’s first

statement — taken shortly after the incident — 1s

consistent with Swofford’s testimony that before he

was shot, Swofford called out to the Deputies. Remus

told FDLE investigators that he heard Swofford say

something like “‘[HJey, ‘Hey, you,’ or “Who are you?’”

(Doc. 89-5 at 64). At the time he was shot, Swofford

had committed no crime. In fact, SCSO decided not to

charge Swofford with any crime within 24 hours of

the shooting. (Doc. 89-3 at 46).

The Deputies’ interpretation of the diagrams of

Swofferd’s expert, Richard Ernest, is refuted by the

images and by Ernest himself. First, the diagrams do

not show Swofford “walking toward the deputies” or

“approaching the deputies.” (See Pet. 2, 3, 6, 10, 22,

29, 30). Instead, they depict Swofford bent forward,

with the gun pointed to the ground and the location of

the officers’ bullets as they entered his body. Indeed,

Ernest’s diagrams are for illustration purposes and do

not represent what Swofford did. Ernest Aff. 4 15

(Doc. 184-6). And Ernest’s report concluded that “the

statements of D/S Remus and D/S Morris asserting

that Swofford raised the gun and pointed it in their

direction are not supported by the physical evidence.”

Ernest Aff. Ix. B (Doc. 184-6). The Deputies also fail

6

to mention that Ernest’s affidavit confirmed that

Swofford was pointing his gun “down toward the

ground” when he was shot:

As explained above, there is no_ physical

evidence to suggest that Mr. Swofford ever

raised his firearm. What the physical

evidence does show is that at the time the

Deputies fired their gun, Mr. Swofford had a

two-handed grip on his firearm, his hands

were in front of his waist, and the firearm

was pointed down towards the ground and

not at the Deputies.

Ernest Aff. 4 13 (Doc. 184-6).

Even the Deputies’ expert agrees that it would be

impossible for Swofford to receive the injuries he did

through his wrists and into his abdomen -- if his

gun had been raised as claimed by the Deputies.

(Hueske Depo. 24:6-27:15 (Doc. 128); accord Wright

Aff. 4 6-9, 13-15 (Doc. 184-7); Ernest Aff. J 5-8, 12-13,

(Doc. 184-6); Swofford Aff. 4] 11 (Doc. 188-1)). Further,

although the Deputies repeatedly assert that

Swofford was only a second from being able to fire on

them, they never have claimed that they thought this

at the time they shot Swofford. And as the Eleventh

Circuit noted, there were inconsistencies within the

Deputies’ own testimony as to what happened during

the encounter. (Pet. App. 3).

4. The Deputies’ failure to warn

It is undisputed that the Deputies did not an

nounce themselves as they broke through Swofford’s

fence. Additionally, although the Deputies now say

that they shouted warnings during the shooting, an

audio recording of the shooting supports Swofford’s

version that no warnings were given. A microphone

connected to one of the Deputies’ radios was trans-

mitting, thus creating an audio recording of the

shooting on the dispatch tape. On the audio, one

hears multiple gun shots but no verbal commands to

Mr. Swofford to drop his weapon until after the last

shot. (Tr. of Dispatch Audio Tape (Doc. 184-2)).

Also, the Deputies misstate the record by claim-

ing that Swofford agrees that warnings were given at

least during the shooting. Swofford testified that the

Deputies did not identify themselves or give him any

commands before shooting him. (Swofford Depo.

231:16-22, 233:1-25, 282:1-20 (Doc. 95)). He testified

that immediately after he yelled “halt” and flash-

lights were shined in his eyes, he felt a sharp pain,

causing him to grab his stomach; then he heard

“BOOM, BOOM, BOOM.” Afterward, he heard some-

one shouting, “Seminole County Sheriff’s Office,” and

then again he heard “BOOM, BOOM, BOOM.”

(Swofford Depo. 231:16-22 (Doc. 95)).

Indeed, the Deputies have largely ignored the

district court’s and Eleventh Circuit’s discussion of

the factual disputes that required denial of summary

judgment on the qualified immunity defense. The

district court found that “[t]he bulk of the disputed

facts in this case surround the events that occurred

immediately before, during, and just after the shoot-

ing of Mr. Swofford.” (Doc. 317 at 9). And the Elev-

enth Circuit held that “[tJhe record reveals material

issues of fact about whether the deputies identified

themselves to Swofford, the position of Swofford’s

gun, the need for Morris and Remus to shoot

Swofford, and whether Remus should have inter-

vened to prevent Morris’s use of force,” all of which

pertain to the circumstances surrounding the shoot-

ing. (Pet. App. 2).

REASONS FOR DENYING THE PETITION

There are no compelling reasons under Rule 10

for granting this Petition. With respect to the first

question presented, the Eleventh Circuit’s ruling is

not in conflict with the decision of another United

States Court of Appeals on an important matter of

federal law. See Sup. Ct. R. 10(a). And with respect to

the second, the Eleventh Circuit did not decide an

important question of federal law that has not been

previously settled by or conflicts with this Court. See

Sup. Ct. R. 10(c). Accordingly, the Petition should be

denied.

1. This case is not a good vehicle for deciding

the first question - whether the circum-

stances surrounding the shooting should

be ignored — because the Eleventh Circuit’s

unpublished opinion did not address that

issue, which does not warrant review by

this Court in any event.

The Deputies argue that the district court’s

decision in this case conflicts with the “segmenting

approach” used by the Fourth, Sixth, Seventh, and

Eighth Circuits. The “segmenting approach” is a

method of applying the “totality of the circumstances”

test that this Court established in Tennessee v. Gar-

ner, 471 U.S. 1, 8-9 (1985) and refined in Graham uv.

Connor, 490 U.S. 386, 396 (1989), for determining

whether an officer’s use of deadly force was objectively

reasonabie. See Dickerson v. McClellan, 101 F.3d

1151, 1161-62 (6th Cir. 1996). The Deputies assert

that “the district court in this case rejected segment-

ing and held that the deputies’ entry onto Swofford’s

property could be viewed as unreasonable, such that

the subsequent use of force was caused by the entry

onto property, rendering the use of force unreasona-

ble.” (Pet. 21). But the Eleventh Circuit did not

mention “segmenting,” nor did it agree or disagree

with the segmenting method. Indeed, the Deputies

concede that the Eleventh Circuit did not squarely

address this issue. (Pet. 16). The per curiam opinion

states only:

The district court did not err when it ruled

that Morris and Remus were not entitled to

10

qualified immunity. The record reveals mate-

rial issues of fact about whether the deputies

identified themselves to Swofford, the posi-

tion of Swofford’s gun, the need for Morris

and Remus to shoot Swofford, and whether

Remus should have intervened to prevent

Morris’s use of force.

(Pet. App. 2).

At no point does the Eleventh Circuit discuss the

unreasonableness of the Deputics’ entry onto the

Swoffords’ property, the Deputies’ failure to wait for

the approaching police helicopter before beginning

their search for suspects, or any other pre-force

activity. Instead, the Eleventh Circuit only addressed

unresolved material issues of fact that pertain to the

circumstances immediately preceding and Curing the

shooting of Swofford. And the Eleventh Circuit sum-

marily denied without opinion the Deputies’ petition

for rehearing and for rehearing en banc. (Pet. App.

47). Further, alleged district court errors do not

warrant review by this Court. See Sup. Ct. R. 10.

The first question, therefore, does not merit review

because the Eleventh Circuit never addressed it.

In any event, the segmenting issue does not

warrant review by this Court. The segmenting ap-

proach does use a somewhat narrow interpretation of

the “totality of the circumstances” in determining if

excessive force was used by analyzing excessive-force

claims in segments. Claybrook v. Birchwell, 274 F.3d

1098, 1103 (6th Cir. 2001). But there is ne dramatic

split between the circuits. (See Pet. 20). Every circuit

Li

applies the “totality of the circumstances” test that

this Court established in Garner, 471 U.S. at 8-9, and

refined in Graham, 490 U.S. at 396, for determining

whether an officer’s use of deadly force was objectively

reasonable. See, e.g., Nelson v. County of Wright, 162

F.3d 986, 990 (8th Cir. 1998); Dickerson, 101 F.3d at

1161-62; Carter v. Buscher, 973 F.2d 1328, 1332 (7th

Cir. 1992); Greenidge v. Ruffin, 927 F.2d 789, 791 (4th

Cir. 1991).

The segmenting approach does not mean that an

officer’s previous conduct plays no role in determining

the reasonableness of his use of deadly force. Instead,

in determining whether the use of force was reasona-

ble, these circuits “segment” by not considering

whether there was a separate constitutional violation

leading up to the seizure. Such analysis does not

require courts to view an officer’s conduct underlying

an excessive force claim in a vacuum. In the decisions

cited by the Deputies, the appellate courts considered

what the officers knew when they used deadly force,

demonstrating that an officer’s pre-force knowledge

and actions impact those courts’ analysis of the

objective reasonableness of a seizure. See Chappell v.

City of Cleveland, 585 F.3d 901, 916 (6th Cir. 2009)

(“[clonsidering what the record shows they knew at

the moment of McCloud’s attack, their use of deadly

force ... cannot be deemed objectively unreasona-

ble”); Dickerson, 101 F.3d at 1161 (requiring a court to

judge the reasonableness of the use of deadly force in

light of all that the officer knew); Plakas v. Drinski,

19 F.3d 1143, 1150 (7th Cir. 1994) (same); Cole v.

12

Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (examining

the information that a trooper possessed at the time

he decided to use deadly force and describing what

the trooper had seen during a high-speed chase in

which he had participated for approximately 30

miles).

Although the Deputies’ characterization of “seg-

menting” and “non-segmenting” circuits creates the

impression that the circuits’ approaches, are vastly

dissimilar, their differences are more rhetorical than

actual. For example, while these courts state that

they analyze what happened in “the moments preced-

ing the shooting,” there is no indication by these

courts of how long a “moment” is. See Dickerson, 101

F.3d at 1162. No “segmenting” court has said that it

only analyzes what occurred in the exact instant of

the use of force.

Similarly, the circuits that decline to narrowly

interpret the “totality of the circumstances” do not go

to the extreme and consider everything that an officer

did leading up to the use of force. See, e.g., Billingten

v. Smith, 292 F.3d 1177, 1189-90 (9th Cir. 2002)

(holding that “lolur precedents do not forbid any

consideration of events leading up to a shooting[, but]

neither do they permit a plaintiff to establish a

Fourth Amendment violation based merely on bad

tactics that result in a deadly confrontation that

could have been avoided”). For example, these courts

decline to include events that occurred substantial

periods of time before the use of force in their anal-

yses. Bella v. Chamberlain, 24 F.3d 1251, 1256 & n. 7

13

(10th Cir. 1994) (cited with approval by Medina ov.

Cram, 252 F.3d 1124 (10th Cir. 2001)) (refusing to

scrutinize events occurring one hour before actual

seizure and noting events were not immediately

connected with the seizure).

At least one “non-segmenting” court has even

cited language from a Seventh Circuit decision —

Plakas, 19 F.3d at 1150, that “we carve up the inci-

dent into segments and judge each on its own terms

to see if the officer was reasonable at each stage” — to

support the view that actions leading up to the use of

force must be considered in determining reasonable-

ness of force. See St. Hilaire v. City of Laconia, 71

F.3d 20, 26 (1st Cir. 1995). Apparently, the First

Circuit found such language supportive of the idea

that actions shortly preceding use of force are part of

the deadly force segment. Id.

Even courts that allegedly “segment” have con-

sidered circumstances in which the officers caused

the situation that required them to use deadly force.

For example, in a factually similar case, Claybrook,

274 F.3d at 1100, a firefight broke out when plain-

clothes undercover officers, who failed to identify

themselves, fatally shot a man holding a shotgun in

a market parking lot who was acting as a security

guard for a woman removing deposits from the

market. Jd. In analyzing the excessive force claim,

the Sixth Circuit noted that “Claybrook was fired

upon by unidentified, non-uniformed officers whom

... Claybrook ... thought to be robbing the market.”

Id. at 1105. In determining the reasonableness of the

14

deadly force, the court found it relevant that the

officers did not identify themselves, thus creating the

situation that caused the firefight. Jd.

In another factually similar case, a homeowner

was shot by unidentified police in his backyard at

dusk. Floyd v. City of Detroit, 518 F.3d 398, 402 (6th

Cir. 2008). The officers, who were investigating a call

about an argument, did not identify themseives;

instead, the homeowner only saw that people were

running toward him because he could see their flash-

light beams. Jd. Although the homeowner was un-

armed, the officers thought he had a gun in his hand.

Id. at 403. In denying a motion for qualified immunity

as a matter of law, the Sixth Circuit considered that

the officers caused the situation leading to deadly

force, holding that “the failure of both officers to

properly assess the reality of the situation they

created before employing deadly force without warn-

ing against an unarmed suspect cannot shield them

from liability unless that failure was objectively

reasonable.” Jd. at 408.

Furthermore, the segmenting approach is not an

absolute and inflexible rule. For example, in Nelson uv.

County of Wright, 162 F.3d 986 (8th Cir. 1998), the

Eighth Circuit disagreed with the plaintiff that a

brief struggle with a police officer should be viewed as

“distinct and separate segments.” Jd. at 991. Rather,

because “(t]he situation was tense and rapidly evolv-

ing,” the court declined to apply the segmenting

approach as it had in Cole, 993 F.2d 1328. Id. Cases

such as Claybrook, Floyd, and Nedson illustrate that

use of the segmenting approach is simply a method or

tool for analyzing the reasonableness of deadly force

given the totality of the circumstances, rather than

an important question of law over which the circuits

are irreparably split.

All of the circuit courts state the rule of law to be

applied in determining whether excessive force was

used -- namely, the “totality of the circumstances” test

under Garner and Graham. Thus, there is no “real

and embarrassing conflict of opinion and authority

between the circuit courts of appeal” regarding the

question of whether to segment the use of deadly

force from previous events. Powell v. Nevada, 511

U.S. 79, 86-87 (1994). Rather, because the segmenting

issue as presented by the Deputies is not “of im-

portance to the public as distinguished from that of

the parties,” certiorari should not be granted in this

case. Id.

Indeed, this Court already has held that an

officer’s use of deadly force may be reviewed for

reasonableness in light of his actions leading up io

the force. In Brower v. County of Inyo, 489 U.S. 593

(1989), this Court evaluated a case where the police

created a roadblock to stop a fleeing suspect. /d. at

594. When the suspect collided with the roadblock

and was killed, his heirs brought an action under

§ 1983, alleging that the roadblock constituted the

use of excessive force. Jd. This Court held that the

roadblock was a “seizure” under the Fourth Amend-

ment and remanded for a determination of whether

16

the roadblock was created in an unreasonable man-

ner. In its analysis, this Court determined that it was

necessary to consider the officers’ actions of creating

the roadblock even though the roadblock was created

well before the decedent hit it. See generally id. Thus,

this Court reviewed the actions of the police leading

up to the crash, noting that they had:

(1) caused an 18-wheel tractor-trailer to be

placed across both lanes of a two-lane high-

way in the path of Brower’s flight, (2) “effec-

tively concealed” this roadblock by placing it

behind a curve and leaving it unilluminated,

and (3) positioned a police car, with its head-

lights on, between Brower’s oncoming vehicle

and the truck, so that Brower would be

“blinded” on his approach.

id. at 594, 598. As the Third Circuit later pointed out,

‘if [the police’s] preceding conduct could not be con-

sidered, remand in Brower would have been pointless,

for the only basis for saying the seizure was unrea-

sonable was the police’s preseizure planning and

conduct.” Abraham v. Raso, 183 F.3d 279, 292 (3d Cir.

1999); see also St. Hilaire, 71 F.3d at 26 (citing Brower

as support for rejecting the view that an officer’s

actions need be examined only at the moment of the

use of deadly force).

Therefore, this Court has already established

that officers’ pre-force actions that result in the use of

deadly force are part of the “totality of the circum-

stances” in determining the reasonableness of that

force. By granting this Petition, the Court would be

17

“tak[ing| a case merely to reaffirm (without revisit-

ing) settled law,” which would be a “poor use of judi-

cial resources.” Powell, 511 U.S. at 87. Accordingly,

the Petition should be denied.

2. The second question —- whether a warning is

required before a shooting in “self-defense” —

rests on a distorted description of the evi-

dence and does not present an errant ruling

of law.

After conducting a de novo review of the record,

the Eleventh Circuit found that “(t]he record reveals

material issues of fact about whether |the Deputies|

identified themselves to Swofford, the position of

Swofford’s gun, the need for Morris and Remus to

shoot Swofford, and whether Remus should have

intervened to prevent Morris’s use of force.” (Pet. App.

2). Viewing the facts in the light most favorable to

Swofford, the Eleventh Circuit held that “a reasona-

ble jury could find that [the Deputies] violated

Swofford’s clearly established constitutional rights.”

(Pet. App. 3).

The Petition is based on what the Deputies

believe to be the Eleventh Circuit’s erroneous factual

findings:

Although the Garner warning requirement is

clearly ill-suited to a case like this one in-

volving a split-second decision to use deadly

force in self-defense, both the district court

and the Eleventh Circuit denied qualified

immunity to the deputies in large part based

18

on a fact dispute as to whether the deputies

gave a Garner-type warning to Swofford pri-

or to the use of deadly force.

(Pet. 25). A fact dispute, however, is not a reason to

grant this Petition. See Sup. Ct. R. 10 (stating that

a petition “will be granted only for compelling rea-

sons” and that a petition “is rarely granted when

the asserted error consists of erroneous factual

findings .. .”).

In its opinion, the Eleventh Circuit provided a

clear roadmap as to the core issues of material fact

upon which a reasonable jury could find that the

Deputies violated Swofford’s clearly established

constitutional rights. (See Pet. App. 2-3). The Elev-

enth Circuit found that disputed issues of fact pre-

cluded summary judgment as to the excessive force

claim against the Deputies. Those issues of maternal

fact should be decided by a jury, not this Court. By

filing the Petition, the Deputies ask nine Supreme

Court Justices to do a second de novo review of a

voluminous pre-trial record consisting of thousands of

pages. In effect, the Deputies want “another bite at

the apple,” even though they have taken three

already — one with the district court ana the second

and third with the Eleventh Circuit.

Thus, the Petition does not warrant review by

this Court because it presents only a fact dispute and

no errant ruling of law. And its fact-bound result

makes it an inappropriate means for reviewing the

holding in Tennessee v. Garner, which requires a

19

warning prior to using deadly force if feasible. There-

fore, the Court should reject the Deputies’ request

that the Court use this case to revisit Garner to

decide whether a law enforcement officer is constitu-

tionally required to give a warning to someone who is

not a fleeing felon. (Pet. 7).

Moreover, the Deputies’ argument fails on the

merits. The Deputies argue that the Garner factors

are unworkable and do not provide them with “fair

notice” of what is constitutionally required prior to

the use of deadly force. (Pet. 28). But Garner does

provide “fair notice” of what was required when the

Deputies encountered Swofford. See Brosseau v.

Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 599 (2004)

(finding that the general tests set forth in Garner and

Graham can provide fair warning). As the district

court found, it is clear that a deputy cannot shoot an

innocent homeowner under the circumstances pre-

sented here. (See Pet. App. 40) (holding that “lilt is

simply not normal for law enforcement officers to . . .

enter unannounced onto a homeowner's property, and

shoot him, unprovoked in his own backyard, knowing

full well that he was not one of the suspects if

constitutional protection against that risk is not

bedrock, it is hard to envision what is”).

Garner provides the Deputies with “fair notice”

that they cannot shoot an innocent homeowner — who

they know is not a suspect — without first giving a

proper warning, if feasible. Viewing the facts in the

light most favorable to Swofford, the Deputies en-

tered the Swoffords’ property in search of two

20

Hispanic suspects. During their search, they encoun-

tered Swofford, who is not Hispanic and who was

lawfully checking his property with a handgun point-

ed to the ground. The Deputies, knowing that

Swofford was not one of the suspects and was prob-

ably the homeowner, immediately shot Swofford,

severely injuring him. Under these facts, a reason-

able jury could find that the Deputies violated

Swofford’s clearly established constitutional mghts.

Moreover, this Court has held that a “clearly

established” constitutional violation does not require

case law that is “materially similar.” Hope v. Pelzer,

536 U.S. 730, 741 (2002). In fact, general statements

of law — such as those identified in Garner — are

capable of providing fair notice and warning to a law

enforcement officer that his or her “conduct violates

established law([,] even in novel factual circumstances.”

Id.- see also U.S. v. Lanier, 520 U.S. 259, 271 (1997)

(recognizing that general statements of law are

capable of giving fair and clear warning); Anderson v.

Creighton, 482 U.S. 635, 639 (1987) (rejecting the

idea that an official action is protected by qualified

immunity unless the very action in question has

previously been held unlawful).

The precedent set by Garner informs the Depu-

ties that a fleeing felon is entitled to a warning if

feasible. Under that precedent, the Deputies cannot

argue in good faith that an innocent homeowner

who admittedly does not resemble the suspects — ts

not entitled to at least the same type of warning as a

21

fleeing felon. Accordingly, the Petition does not merit

review by this Court.

CONCLUSION

The Court should deny the Petition for Writ of

Certiorar.

Respectfully submitted,

ALBERT F. TELLECHEA

Counsel of Record

LAURIE WEBB DANIEL

HOLLAND & KNIGHT LLP

200 South Orange Avenue

Suite 2600

Orlando, Florida 32801]

(407) 425-8500

albert.tellechea@hklaw.com

Counsel for Respondents

Robert and Sharon Swofford