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Supreme Court of the United States No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- OFFICER VANCE PLUMHOFF, et al., Petitioners, vs. WHITNE RICKARD, a minor child, individually, and as surviving daughter of Donald Rickard, deceased, by and through her mother Samantha Rickard, as parent and next friend, Respondent. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit --------------------------------- --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- MICHAEL A. MOSLEY PHILIP W. SAVRIN P.O. Box 38 Counsel of Record North Little Rock, AR 72115 JACOB E. DALY (501) 978-6131 FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway Suite 1600 Atlanta, GA 30339 (770) 818-1405 [email protected] ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTIONS PRESENTED In a civil case against police officers for excessive force, a court must grant qualified immunity unless the use of force was prohibited by clearly established law. Here, the Sixth Circuit denied qualified immun- ity for force used in 2004 to end a vehicular pursuit that is similar to the force ruled permissible in Scott v. Harris, 550 U.S. 372 (2007). The Sixth Circuit denied qualified immunity by distinguishing Scott “in the details” from the force used three years earlier in this case. (Pet. App. at 8-9.) The Sixth Circuit applied a similar analysis in Walker v. Davis, 649 F.3d 502 (6th Cir. 2011), where it also distinguished Scott to deny qualified immunity for pre-2007 conduct. As Judge McKeague noted in his extended dissent, the Sixth Circuit stands alone in this analysis. Id. at 504- 11 (McKeague, J., dissenting). Petitioners believe this Court has an opportunity to correct the errors in the Sixth Circuit’s qualified immunity analysis by agree- ing to hear their case. The specific questions pre- sented are as follows: 1. Whether the Sixth Circuit wrongly denied qualified immunity to Petitioners by analyzing whether the force used in 2004 was distinguishable from fac- tually similar force ruled permissible three years later in Scott v. Harris, 550 U.S. 372 (2007). Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by sub- sequent case decisions as opposed to prohibited by clearly established law at the time the force was used. ii QUESTIONS PRESENTED – Continued 2. Whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under Respond- ent’s own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made con- tact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process. iii PARTIES TO THE PROCEEDINGS Petitioners are the following members of the West Memphis Police Department: Officer Vance Plumhoff; Officer John Bryan Gardner; Officer Tony Galtelli; Officer Lance Ellis; Officer Jimmy Evans; and Officer Joseph Forthman. Respondent is Whitne Rickard, a minor and sur- viving daughter of Donald Rickard, deceased. The lawsuit was filed on her behalf by Samantha Rickard, as parent and next friend. No corporations are parties to the proceedings. iv TABLE OF CONTENTS Page Questions Presented ..................................................... i Parties to the Proceedings .......................................... iii Table of Contents ........................................................ iv Table of Authorities .................................................... vi Opinions and Judgments Below .................................. 1 Statement of Jurisdiction ............................................. 2 Constitutional Provisions and Statutes Involved in the Case ................................................................. 2 Statement of the Case .................................................. 3 A. Introduction ....................................................... 3 B. Facts and procedural history ............................. 6 Argument .................................................................... 11 A. The Sixth Circuit erred in analyzing whether the force was supported by subse- quent case law as opposed to prohibited by clearly established law at the time the force was used .................................................. 11 B. The Sixth Circuit erred in denying quali- fied immunity by finding the use of force was not reasonable as a matter of law ............ 22 Conclusion ................................................................... 27 v TABLE OF CONTENTS – Continued Page APPENDIX Opinion of the United States Court of Appeals for the Sixth Circuit dated November 14, 2012, affirming the denial of qualified im- munity to Petitioners ....................................... App. 1 Opinion of the United States District Court for the Western District of Tennessee dated January 19, 2011, granting in part and deny- ing in part Petitioners’ motion for summary judgment ........................................................ App. 16 Order of the United States Court of Appeals for the Sixth Circuit dated December 13, 2012, denying petition for rehearing en banc ......... App. 63 vi TABLE OF AUTHORITIES Page CASES Anderson v. Creighton, 483 U.S. 635 (1987) .............. 13 Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) .......... 11, 17 Brosseau v. Hagen, 543 U.S. 194 (2004) (per curiam) ............................................................ passim Cole v. Bone, 993 F.3d 1328 (8th Cir. 1993) ............... 18 County of Sacramento v. Lewis, 523 U.S. 833 (1998) ....................................................................... 10 Dudley v. Eden, 260 F.3d 722 (6th Cir. 2001) ............ 18 Estate of Allen v. City of West Memphis, Nos. 05-2489 and 05-2585, 2011 WL 197426 (W.D. Tenn. Jan. 20, 2011) .................................................. 1 Estate of Allen v. City of West Memphis, No. 11- 5266, 2012 WL 6603083 (6th Cir. Oct. 9, 2012) .......................................................................... 1 Estate of Allen v. City of West Memphis, No. 11- 5266, 2012 WL 6634306 (6th Cir. Nov. 14, 2012) .......................................................................... 1 Filarsky v. Delia, 132 S. Ct. 1657 (2012) ................... 15 Graham v. Connor, 490 U.S. 386 (1989) .............. 22, 23 Hunter v. Bryant, 504 U.S. 224 (1991) ......................... 6 Mitchell v. Forsyth, 472 U.S. 511 (1985) .................. 2, 6 Morse v. Frederick, 551 U.S. 393 (2007) .................... 13 Murray-Ruhl v. Passinault, 246 F. App’x 338 (6th Cir. 2007) ..................................................... 5, 15 vii TABLE OF AUTHORITIES – Continued Page Pearson v. Callahan, 555 U.S. 223 (2009) ..... 13, 14, 15 Reichle v. Howards, 132 S. Ct. 2088 (2012) ............... 17 Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011) .................................................................... 5, 15 Saucier v. Katz, 533 U.S. 194 (2001) .................. passim Scott v. Clay County, 205 F.3d 867 (6th Cir. 2000) ........................................................................ 18 Scott v. Harris, 550 U.S. 372 (2007)................... passim Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) .... 19, 20 Smith v. Kim, 70 F. App’x 818 (6th Cir. 2003) ....... 5, 15 Sova v. City of Mt. Pleasant, 142 F.3d 898 (6th Cir. 1998) ....................................................... 5, 14, 15 Sykes v. United States, 131 S. Ct. 2267 (2011) .......... 23 Tennessee v. Garner, 471 U.S. 1 (1985) ...................... 25 United States v. Place, 462 U.S. 696 (1983) ............... 23 Walker v. Davis, 649 F.3d 502 (6th Cir. 2011) .............. 5 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES U.S. CONST. amend. IV ....................................... passim 28 U.S.C. § 1254 ........................................................... 2 28 U.S.C. § 1291 ........................................................... 2 42 U.S.C. § 1983 ....................................................... 2, 3 SUP. CT. R. 10 .............................................................. 11 SUP. CT. R. 13 ................................................................ 2 1 OPINIONS AND JUDGMENTS BELOW On January 20, 2011, the United States District Court for the Western District of Tennessee entered an order granting in part and denying in part Peti- tioners’ motion for summary judgment. The district court’s order is available on Westlaw at Estate of Allen v. City of West Memphis, Nos. 05-2489 and 05- 2585, 2011 WL 197426 (W.D. Tenn. Jan. 20, 2011). In addition, the district court’s order is reproduced in the appendix to this petition. (Pet. App. at 16-62.) On October 9, 2012, the United States Court of Appeals for the Sixth Circuit issued an opinion af- firming the district court’s order. On November 14, 2012, the Sixth Circuit vacated its October 9, 2012 opinion and issued a substitute opinion that also affirmed the district court’s order.
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