No IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES LAS VEGAS METROPOLITAN POLICE DEPARTMENT; CLARK COUNTY, NEVADA; JAY R. ROBERTS, Sgt.; MICHAEL DUNN, Officer; CHRISTOPHER G. KOHNTOPP, Officer; JUSTIN BYERS, Officer; TROY GIVENS, Officer, v. Petitioners, JESUS RODRIGUEZ SANDOVAL; ADRIANA RODRIGUEZ, individually and as Guardian Ad Litem for Kenya Rodriguez, a Minor; HENRY BRIAN RODRIGUEZ; MARTHA LEAL, as Guardian Ad Litem for Jordhy Leal, a Minor; MONICA MORENO, as Guardian Ad Litem for David Madueno, a Minor, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit REPLY TO BRIEF IN OPPOSITION Craig R. Anderson, Esq. Micah S. Echols, Esq. Counsel of Record Marquis Aurbach Coffing Park Run Dr. Las Vegas, NV (702) mechols@maclaw.com LEGAL PRINTERS LLC, Washington DC! ! legalprinters.com

2 i TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... 1 LEGAL ARGUMENT... 2 A. There Is a Genuine Conflict Between the Decisions of Other Courts and the Ninth Circuit s Artificial Felony/Misdemeanor Distinction for a Warrantless Entry into a Home... 2 B. The Sandovals Do Not Dispute that Ofc. Dunn is Entitled to Qualified Immunity Because the Ninth Circuit s Artificial Felony/ Misdemeanor Distinction for a Warrantless Entry into a Home Was Not Clearly Established in C. The Sandovals Also Do Not Dispute that Their Remaining Claims Are Subject to Dismissal if This Court Approves Ofc. Dunn s Lawful Entry into Their Home CONCLUSION... 13

3 ii TABLE OF AUTHORITIES Cases Page(s) Boulware v. State, Dep t Human Resources, 103 Nev. 218, 737 P.2d 502 (1987)... 6 Carroll v. Carman, 574 U.S. (2014) Falcke v. Douglas County, 116 Nev. 583, 3 P.3d 661 (2000)... 5 Frunz v. City of Tacoma, 468 F.3d 1141 (9th Cir. 2006)... 3, 4, 7, 12 Heien v. North Carolina, 574 U.S. (2014) James v. United States, 550 U.S. 192 (2007)... 4, 7 Malley v. Briggs, 475 U.S. 335, 106 S.Ct (1986)... 10, 12 Martin v. City of Oceanside, 360 F.3d 1078 (9th Cir. 2004)... 8 Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983)... 7 Medway v. Cate, 756 F. Supp. 2d 1280 (S.D. Cal. 2010)... 4, 10 Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995) Nelson v. City of Las Vegas, 99 Nev. 548, 665 P.2d 1141 (1983)... 12

4 iii Reichle v. Howards, 566 U.S. (2012) Sandoval v. Las Vegas Metro. Police Dep t, 756 F.3d 1154 (9th Cir. 2014)... 2, 3 State v. White, 330 P.3d 482 (Nev. 2014) United States v. Richardson, 208 F.3d 626 (7th Cir. 2000)... 8 United States v. Singer, 687 F.2d 1134 (8th Cir. 1982)... 9 United States v. Tibolt, 72 F.3d 965 (1st Cir. 1995).. 8 Statutes Clark County Code Las Vegas City Code Nev. Rev. Stat , 4, 5 Nev. Rev. Stat (1)... 6 Other Authorities A.B. 77, Comm. on Judiciary, 67th Leg. (Nev. 1993)... 4

5 1 INTRODUCTION In their petition, the LVMPD Defendants asked this Court to grant certiorari on the basis of various court decisions standing in opposition to the Ninth Circuit s artificial distinction between an allowable warrantless entry by police officers into a home for a suspected felony burglary charge, while prohibiting warrantless entry for a suspected misdemeanor prowling charge. The LVMPD Defendants also asked this Court to grant certiorari on the alternative issue of qualified immunity since the Ninth Circuit s artificial felony/misdemeanor distinction was not clearly established in 2009 when the events of this case took place. The LVMPD Defendants finally requested that if this Court grants certiorari, the case should be remanded for the Ninth Circuit to reconsider dismissing all of the Sandovals remaining claims, due to Ofc. Dunn s lawful entry into their home in response to a 911 call. In their cursory response, the Sandovals completely ignore the Ninth Circuit s artificial felony/misdemeanor distinction for a warrantless entry into a home. Instead, the Sandovals argue that factually there was no exception to Ofc. Dunn s warrantless entry into their home. By simply reiterating the Ninth Circuit s position on the first issue presented in the petition, the Sandovals have not demonstrated that certiorari is inappropriate. More importantly, the LVMPD Defendants alternative argument for the application of qualified

6 2 immunity to Ofc. Dunn s lawful entry remains uncontested. The Sandovals simply cannot articulate that the Ninth Circuit s felony/misdemeanor distinction was clearly established prior to the 2009 events of this case or that Ofc. Dunn s actions were not reasonable under the existing state and federal precedent. Therefore, the LVMPD Defendants request that this Court grant their petition for a writ of certiorari and instruct the Ninth Circuit on remand to reconsider dismissing all of the Sandovals remaining claims consistent with this Court s disposition of the two main issues presented in the petition. LEGAL ARGUMENT A. There Is a Genuine Conflict Between the Decisions of Other Courts and the Ninth Circuit s Artificial Felony/Misdemeanor Distinction for a Warrantless Entry into a Home. In Sandoval v. Las Vegas Metro. Police Dep t, 756 F.3d 1154 (9th Cir. 2014), the Ninth Circuit undoubtedly created a felony/misdemeanor distinction for a warrantless entry into a home. Instead of directly addressing this issue, the Sandovals pretend that it does not exist. The Sandovals even go so far as to claim that prowling still exists under Nevada law, even though they offer only citations to the Las Vegas City Code and the Clark County Code that are inconsistent with what the Nevada Legislature has done with Nev. Rev.

7 3 Stat in removing the prowling references from this vagrancy statute. In any event, once the suspects entered the Sandovals home, any prowling became a burglary with its attendant dangers, thus entitling Ofc. Dunn to enter the home. Therefore, the Sandovals reiteration of the Ninth Circuit s arguments does not destroy the genuine conflict regarding a warrantless entry into a home, and the Court should grant certiorari on this first issue. 1. The Ninth Circuit Undoubtedly Created a Felony/Misdemeanor Distinction for a Warrantless Entry into a Home. Instead of directly addressing the Ninth Circuit s artificial felony/misdemeanor distinction for a warrantless entry into a home, the Sandovals argue that the distinction does not exist. However, the Ninth Circuit s opinion, which governs the conduct of police officers throughout the entire Ninth Circuit, cannot be ignored. The Sandoval opinion first noted the inherent dangers that police officers face when investigating possible burglaries. App. 16a 17a (citing Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006)). The Ninth Circuit then concluded that the dangers and exigencies of a burglary supposedly do not exist when the call is merely for a possible prowling violation. Id. The opinion reasoned, This distinction matters, because whereas burglary and attempted burglary are considered to carry an inherent risk of violence, see,

8 4 e.g., James v. United States, 550 U.S. 192, (2007), prowling is not considered a violent crime, cf. Medway v. Cate, 756 F. Supp. 2d 1280, 1297 (S.D. Cal. 2010). The officers were therefore not entitled to enter the house without a warrant under Frunz. App. 17a. Therefore, the Sandovals suggestion that the Ninth Circuit never made its artificial felony/misdemeanor distinction for a warrantless entry into a home is unavailing. The artificial distinction was made explicitly and should be resolved by the Court. 2. The Sandovals Representation that Prowling Exists as a Misdemeanor in Nevada Misstates the Law. In a further attempt to avoid the Ninth Circuit s artificial felony/misdemeanor distinction for a warrantless entry into a home, the Sandovals represent that prowling actually exists as a misdemeanor under Nevada law. In the petition, the LVMPD Defendants pointed out that the Nevada Legislature abandoned the provisions of Nevada s vagrancy statute (Nev. Rev. Stat ) in 1993 that mention prowling. See A.B. 77, Comm. on Judiciary, 67th Leg. (Nev. 1993). The Sandovals do not dispute the removal of prowling from this statute. Instead, they offer the Las Vegas City Code and the Clark County Code as Nevada law that the LVMPD police officers were supposed to enforce. Notably, the Ninth Circuit never cited a Nevada source for its reliance upon prowling as a misdemeanor. App. 1a 33a. And, the Sandovals

9 5 citations to inapposite municipal codes do not provide the necessary evidence to demonstrate that prowling actual exists under Nevada law. The language of the cited Las Vegas City Code states as follows: It is unlawful for any person to loiter or prowl upon the private property of another without lawful business with the owner or occupant thereof. Yet, nothing within this Code section makes a prowling violation a misdemeanor. Similarly, the relevant provisions of the Clark County Code state: It is unlawful for any person to engage in any of the following acts of vagrancy:.... (j) Prowls upon the private property of another, without visible or lawful business with the owner or occupant thereof, or who, while loitering, prowling or wandering upon the private property of another, peeks in the door or window of any inhabited building or structure located thereon, without visible or lawful business with the owner or occupant thereof;... For the same reasons that the Nevada Legislature removed the prowling provisions from Nevada s vagrancy statute (Nev. Rev. Stat ), the parallel provisions of the Clark County Code would be unenforceable. See Falcke v. Douglas County, 116 Nev. 583, 588, 3 P.3d 661, 664 (2000) (recognizing that [b]ecause counties obtain their authority from

10 6 the [L]egislature, county ordinances are subordinate to statutes if the two conflict ); Boulware v. State, Dep t Human Resources, 103 Nev. 218, 219, 737 P.2d 502 (1987) (noting that an entity may not act outside the meaning and intent of [its] enabling statute ). As such, prowling as a misdemeanor has not existed in Nevada law since The Sandovals citation to municipal codes does not change that fact. 3. Once the Suspects Entered the Sandovals Home, Any Prowling Became Elevated to a Burglary with Its Attendant Dangers. Even if prowling did exist as a misdemeanor during the 2009 events of the instant case, the uncontested facts of this case demonstrate that the suspects had entered the Sandovals home. App. 5a 6a. Once a suspect enters a home, the legal definition of prowling becomes inapplicable, and the situation becomes a suspected burglary under the definition of Nev. Rev. Stat (1): [A] person who, by day or night, enters any house... with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary. Since the LVMPD police officers were pursuing suspects who had already entered the Sandovals home, the officers were entitled to treat the situation as a possible burglary.

11 7 The Sandovals do not dispute that a suspected burglary is classified as an inherently violent crime under Nevada state law, Ninth Circuit, and this Court s precedent. On this point, the Nevada Supreme Court articulated, We consider burglary to be a very serious crime. Intentional and trespassory invasion of the home of another, especially in the nighttime, can arguably be considered as a form of violence. It is an offense which conduces towards violence and may cause serious and permanent psychological harm to the victim. Matter of Seven Minors, 99 Nev. 427, 438, 664 P.2d 947, 954 (1983), disapproved of on other grounds by In re William S., 122 Nev. 432, 132 P.3d 1015 (2006). Similarly, in Frunz v. City of Tacoma, 468 F.3d 1141, 1145 (9th Cir. 2006), the Ninth Circuit s own precedent has explicitly acknowledged that when officers suspect a burglary in progress, they have no idea who might be inside and may reasonably assume that the suspects will, if confronted, flee or offer armed resistance. This Court also recognized that the main risk of burglary arises not from the simple physical act of wrongfully entering onto another s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party whether an occupant, a police officer, or a bystander who comes to investigate. James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 1594 (2007). Therefore, since the suspects had already entered the Sandovals home, the LVMPD officers were entitled to treat the situation as a possible burglary and enter the home.

12 8 4. The Sandovals Reiteration of the Ninth Circuit s Arguments Does Not Destroy the Genuine Conflict Regarding a Warrantless Entry. Instead of challenging the LVMPD Defendants argument that the Ninth Circuit s artificial felony/misdemeanor distinction for a warrantless entry contradicts other case law, the Sandovals simply reiterate the Ninth Circuit s arguments. However, simply reiterating one side of the argument does not change the fact that there is a genuine conflict regarding warrantless entry. Previous Ninth Circuit precedent holds that warrantless entry is justified where there are requests that prompted the police to fulfill their responsibility to investigate potentially suspicious activity and protect the communities they serve. Martin v. City of Oceanside, 360 F.3d 1078, 1083 (9th Cir. 2004). Other jurisdictions have held that 911 calls reporting an emergency can be enough to support warrantless searches under the exigent circumstances exception, particularly where... the caller identified himself. United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000). The nature of police work requires that officers are able to respond promptly to reports of emergencies without unnecessary second-guessing. Id. Even a police officer s mistake as to the location where an emergency response is needed did not create a Fourth Amendment violation. United States v. Tibolt, 72 F.3d 965, (1st Cir. 1995).

13 9 Similarly, the Eighth Circuit allowed a warrantless entry where it seemed apparent that a burglary was in progress. United States v. Singer, 687 F.2d 1134, 1144 (8th Cir. 1982). Yet, under the Ninth Circuit s framework in the instant case, police officers will have to determine whether the potential crime is a felony or a misdemeanor before entering a home without a warrant to provide assistance in response to a 911 call. According to Sandoval, police officers may refuse to enter a home, for fear of liability, when there is an emergency that may only be classified as a misdemeanor. Therefore, the LVMPD Defendants request that this Court grant certiorari on this first issue to clarify that a police officer s ability to enter a home in an emergency situation, as in a suspected burglary, is not dependent upon whether the crime is classified as a felony or a misdemeanor. B. The Sandovals Do Not Dispute that Ofc. Dunn is Entitled to Qualified Immunity Because the Ninth Circuit s Artificial Felony/Misdemeanor Distinction for a Warrantless Entry into a Home Was Not Clearly Established in In their petition, the LVMPD Defendants pointed out that the Ninth Circuit s reliance upon a 2010 Federal District Court case applying California law could not satisfy the clearly-established requirement to impose liability upon Ofc. Dunn. In their response, the Sandovals do not meaningfully attempt to oppose this argument and, thus, concede

14 10 that Ofc. Dunn is entitled to qualified immunity. At a minimum, Ofc. Dunn made a reasonable mistake of fact or law, for which qualified immunity should still apply. 1. The Sandovals Response Has Not Placed the Ninth Circuit s Artificial Distinction for a Warrantless Entry into a Home Beyond Debate. In a qualified immunity analysis, a police officer cannot be liable for constitutional harms unless they were clearly established at the time of the officer s acts. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct (1986). A specific case on point is not required, but existing precedent must have placed the statutory or constitutional question beyond debate. Id. The Sandovals failure to meaningfully address the Ninth Circuit s artificial distinction for a warrantless entry into a home does not place the issue beyond debate. As a matter of law, the Ninth Circuit s citation to Medway v. Cate, 756 F. Supp. 2d 1280 (S.D. Cal. 2010) could not have governed the 2009 events of the instant case. Moreover, this inapposite case law cannot serve to clearly establish the law since it was not Ninth Circuit precedent in See Reichle v. Howards, 566 U.S., (2012) (slip op., at 7). Additionally, it was not until 2014 that the Nevada Supreme Court confirmed that a person cannot commit burglary of a home when he or she has an absolute right to enter the home. State v.

15 11 White, 330 P.3d 482, 483 (Nev. 2014). Likewise, the LVMPD officers acted in accordance with Murdock v. Stout, 54 F.3d 1437 (9th Cir. 1995) in which a warrantless entry into a home was upheld by the Ninth Circuit for investigating a possible burglary, in which the entry appeared to be through a back sliding door that was partially open, as in the instant case. Id. at As such, Ofc. Dunn s entry into the Sandovals home was based upon a reasonable legal basis under the circumstances. 2. At Most, Ofc. Dunn s Entry into the Sandovals Home Was Based Upon a Reasonable Mistake of Fact or Law. Even if the Court were to uphold the Ninth Circuit s artificial felony/misdemeanor distinction for a warrantless entry into a home, the legal differences are so close that Ofc. Dunn made a reasonable mistake of fact or law that would still entitle him to qualified immunity. This Court recently held that a police officer s reasonable mistake of law or fact that is objectively reasonable does not violate the Fourth Amendment. See Heien v. North Carolina, 574 U.S., (2014) (slip op., at 11). Ofc. Dunn could have relied upon the burglary statute in Nevada, as well as existing state and federal precedent, to enter the Sandovals home since the suspects had already entered the home, and there was enough corroborating evidence to demonstrate that someone had entered into the rear entrance of the Sandovals home. Cf. Carroll v.

16 12 Carman, 574 U.S. (2014) (clarifying that a police officer s warrantless entry into the curtilage of a home up to a rear entrance does not violate the Fourth Amendment when the entrance is open to visitors). Since Ofc. Dunn s actions had a reasonable basis in fact and law, he cannot be said to be plainly incompetent. See Malley, 475 U.S. at 341. Therefore, the Court should grant the petition on this alternative basis that the felony/misdemeanor distinction made by the Ninth Circuit is not clearly established, thus entitling Ofc. Dunn to qualified immunity. C. The Sandovals Also Do Not Dispute that Their Remaining Claims Are Subject to Dismissal if This Court Approves Ofc. Dunn s Lawful Entry into Their Home. The Sandovals response also made no attempt to oppose the LVMPD Defendants request to remand this case for the Ninth Circuit to reconsider dismissing all of the Sandovals remaining claims for excessive force under the Fourth Amendment and the related state law claims. According to Frunz, since the LVMPD police officers reasonably treated the Sandoval youth as potential burglary suspects, they were entitled to use all appropriate force. 468 F.3d at Similarly, under Nevada law, the Sandovals arrests were privileged and not actionable. Nelson v. City of Las Vegas, 99 Nev. 548, 552, 665 P.2d 1141, 1144 (1983). Since the Sandovals have no objection to this request, the Court should remand the case to the Ninth Circuit to reconsider

17 13 dismissing all remaining claims that cannot survive based upon Ofc. Dunn s lawful entry into the Sandovals home. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. January 21, 2015 Respectfully submitted, Craig R. Anderson, Esq. Micah S. Echols, Esq. Counsel of Record Marquis Aurbach Coffing Park Run Dr. Las Vegas, NV (702) mechols@maclaw.com