No. 08-996

~bupreme ~ourt of the ~t~it~11 ~t~te~

JESSE DANIEL BUCKLEY,

JONATHAN RACKARD,

Petitioner,

Respondent.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Eleventh Circuit

BRIEF IN OPPOSITION TOPETITION FOR A WRIT OF CERTIORARI

JOHN W. JOLLY, JR.Florida Bar No. 291961JOLLY ~ PETERSON, P.A.

2145 Delta Blvd., Suite 200Post Office Box 37400

Tallahassee, Florida 32315(850) 422-0282

Attorney for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLLECT (402) 342-2831

o

COUNTERSTATEMENT OFQUESTIONS PRESENTED

Whether a deputy sheriff violates the FourthAmendment when he deploys a Taser three timesin "drive-stun" mode to accomplish a lawful ar-rest on an actively but not violently resisting per-son after repeated warnings the Taser would beused if compliance with lawful orders did not oc-cur, where the officer is alone, at night, imme-diately adjacent to a dark highway.

Whether it was clearly established, so as todefeat the individual qualified immunity fromsuit enjoyed by a deputy sheriff, that a lone depu-ty who uses a Taser in drive-stun mode threetimes to accomplish a lawful arrest on an activelybut not violently resisting person after repeatedwarnings immediately adjacent to a dark high-way is violative of the Fourth Amendment.

ii

PARTIES TO THE PROCEEDING

Petitioner is Jesse Daniel Buckley, Plaintiff-Appellee below.

Respondent is Jonathan Rackard, Deputy Sheriffof Washington County, Florida, in his individualcapacity, Defendant-Appellant below.

111

TABLE OF CONTENTSPage

COUNTERSTATEMENT OF QUESTIONS PRE-SENTED ..............................................................i

PARTIES TO THE PROCEEDING .......................ii

TABLE OF AUTHORITIES ...................................iv

OPINION BELOW .................................................1

ARGUMENTS IN OPPOSITION TO THE PETI-TION FOR CERTIORARI ..................................1

PERCEIVED MISSTATEMENTS ]:N THE STATE-MENT OF THE CASE ........................................1

REASONS FOR DENYING THE PETITION .......6

I. Conflict with Other Decisions .....................7

II. The Question Presented Does Not NeedSupreme Court Resolution ..........................12

III. This Case is Not an Ideal Vehicle forReview of the Questions Presented .............14

CONCLUSION .......................................................15

iv

TABLE OF AUTHORITIES

Page

CASES

Amnesty America v. Town of West Hartford, 361F.3d 113 (2d Cir. 2004) ............................................11

Brosseau v. Haugen, 543 U.S. 194 (2004) ....................8

Buck v. City of Albuquerque, 549 F.3d 1269(10th Cir. 2008) .......................................................11

Casey v. City of Federal Heights, 509 F.3d 1278(10th Cir. 2007) .......................................................10

Graham v. Connor, 490 U.S. 386 (1989) ..................6, 7

Headwaters Forest Defense v. County of Hum-boldt, 276 F.3d 1125 (9th Cir. 2002) .........................9

Hickey v. Reeder, 12 F.3d 754 (8th Cir. 1993) ............11

Hope v. Pelzer, 536 U.S. 730 (2002) ..........................6, 7

LaLonde v. County of Riverside, 204 F.3d 947(9th Cir. 2000) ......................................................9, 10

Mecham v. Frazier, 500 F.3d 1200 (10th Cir.2007) ........................................................................11

Moretta v. Abbott, 280 Fed. Appx. 823 (non-published opinion) (11th Cir. 2008) ........................14

Pearson v. Callahan, 129 S.Ct. 808 (2009) ..................8

Saucier v. Katz, 533 U.S. 194 (2001) ............................8

Scott v. Harris, 550 U.S. 372 (2007) .............................8

v

TABLE OF AUTHORITIES - ContinuedPage

FLORIDA STATUTES

§943.1717(1) ................................................................13

SUPREME COURT RULES

Rule 15.2 .......................................................................1

1

OPINION BELOW

The opinion of the United States Court of Ap-peals for the Eleventh Circuit that is the subject ofthis petition can be found in the Petition for a Writ ofCertiorari at page la of the Appendix.

ARGUMENTS IN OPPOSITION TOTHE PETITION FOR CERTIORARI

Respondent Rackard opposes issuance of the writof certiorari as sought by Petitioner Buckley.

PERCEIVED MISSTATEMENTSIN THE STATEMENT OF THE CASE

As required by Rule 15.2 of the Supreme CourtRules, Respondent Rackard is required to addressperceived misstatements of fact or law in the petitionthat bear on what issues would properly be before thecourt if certiorari were granted. There are severalsignificant examples of such misstatements whicheither are misstatements of fact or law, or which haveno record support for the assertions made.

The incident in which Jonathan Rackard, aDeputy Sheriff in rural Washington County, Florida,felt the need to deploy a department issued Taser indrive-stun mode was fairly and completely recordedon videotape. As a result, the need for pre-trial dis-covery was substantially moderated. Not a single

2

deposition was taken. As a result, the record evidenceconsisted of the videotape itself, Deputy Rackard’saffidavit in support of his Motion for Summary FinalJudgment, certified copies of state court documentsreflecting Buckley’s no contest plea to having resistedDeputy Rackard’s lawful arrest, Buckley’s "declara-tion" in opposition to summary judgment, the TaserUse Report, several photos of Buckley’s back, theWashington County Sheriff’s Office Taser Policy, acomplaint by a "Mrs. Buckley", an Internal AffairsReport, and the report of Plaintiff’s "expert" RonaldLynch.

From this sparse and spartan record the Peti-tioner’s brief includes rhetorical flourishes andhyperbolic embellishments asserted without recordsupport. Buckley’s petition opens with the assertionthat the Eleventh Circuit’s opinion authorizes Taserdeployment on citizens, like Buckley, who will suffer"excruciating pain and severe burns through repeated... Taser discharges of 50,000 volts of electricity." Infact, there is no evidence in the record of how theTaser works, how much electricity is conducted orwhether the electrical measurements that explain itsoperation are volts, watts, amperes, or ohms. Buck-ley’s petition morphed his original reporting at thedistrict court level of the pain he experienced frombeing merely "intense at the time" to now "excruciat-ing."

As evidence of record in opposition to summaryjudgment, Buckley’s "Declaration" made only passing

3

reference to any burns indicating only that he devel-oped "Keloid growths at some of the Taser burnpoints on my body." In contrast, the petition nowblithely describes those as "severe burns" without anymedical record support whatever as to whether theburns were in any way "severe."

The videographic recording of the entire incidenteffectively refutes the suggestion in the petition thatPetitioner frustrated Deputy Rackard’s effort ateffectuating a lawful arrest either because he was"physically unable to do so because of his emotionalcondition or because his hands were cuffed behind hisback." A careful review of that videotape makesindisputably clear that Buckley was far from a non-resistor or a mere passive resistor. Contrary to thebold suggestion that Buckley "fell" to the ground, onecannot help but note that Buckley made it well out ofthe roadway before falling. Buckley’s recitation of thecase in support of the petition notably fails to men-tion that Deputy Rackard attempted three times tohelp Buckley to his feet because to do so would ac-knowledge that the suggestion that Buckley wasunable to get up and not attempting to defeat or delaya lawful arrest is fatuous on its face.

The last of the substantial and gratuitous mis-

statements of the facts for which there is no recordsupport is the glib assessment that Deputy Rackard’sonly purpose in tasing Mr. Buckley "was to inflictpain." In stark contrast is the actual evidence ofrecord in which Rackard explained his actions andthe reasons for them.

4

"6) Once I was able to transport Mr. Buckleyto my patrol car, there was no further Taserapplication to his person or otherwise. I neverpunched, kicked, struck, pepper-sprayed orused any other devices to apply any otherforce to Mr. Buckley.

7) I used only such force as I thought wasneeded to arrest Mr. Buckley after he refusedto sign a traffic citation. I tried to persuadeMr. Buckley to sign his traffic citation andtried to persuade him to simply come with meto my patrol car.

8) I was concerned that Mr. Buckley mightcause me harm either by intent or by accidentif I remained at that dark roadside attempt-ing to move him myself."

Petitioner’s description of the Eleventh Circuit’sopinion as being "fractured" is indeed a straineddescription. In fact, Judge Edmondson and JudgeDubina each substantially agreed not only on thedecision but on its rationale. Judge Edmondson’sopinion focused broadly on the overall reasonablenessof Rackard’s actions in attempting to complete thearrest of the Plaintiff who was not "fully secured untilafter the second officer arrived." Judge Edmondsonconcluded that the three Taser deployments of Rack-

ard were not excessive in a constitutional sense, andtherefore were obviously not contrary to clearlyestablished law. Thus, Judge Edmonson opined that

Rackard’s actions were both constitutional and, at aminimum, entitled to qualified immunity from suit.

5

Judge Dubina’s reasoning, though not a perfectacetate overlay of Judge Edmondson’s, had manypoints of alignment. Judge Dubina agreed that thefirst two Taser deployments simply did not violate theConstitution at all and that the third was not anaffront to clearly established law. Thus two of thepanel members agree that two of the Taser deploy-ments were simply lawful. Those same panel mem-bers agree that none of the three Taser applicationswas contrary to clearly established law. Both rehear-ing and rehearing en banc were denied on November8, 2008 after no Judge in regular active service re-quested that the court be polled. It is then the opinionof a single District Court Judge, sitting by designa-tion, that concludes Deputy Rackard’s actions wereviolative of the Constitution.

Finally, Respondent respectfully suggests thatPetitioner’s assertions that "Petitioner never onceresisted" and that "neither Petitioner nor Respondentwas in actual danger from potential traffic" (Petitionfor Certiorari at pp. 4-5) are fundamentally wrongand clearly observable as such on the videotape. ThePetitioner equates active resistance and violentresistance. By inference then, only violent resistancewith the purpose of causing pain or injury to theofficer is "active." Petitioner can envision then onlytwo types of resistance as though they are governedby a legal binary on-off light switch. Instead, moreaccurately, resistance to lawful authority is betterunderstood as on a continuum or rheostat. Of coursethere is the "passive resistance" of the sit-down striker

6

who refuses to move using civil disobedience as anadjunct to political speech on the one hand and armed

resistance with a firearm on the other. However, inbetween and the existence of which is not acknowl-edged by the Petitioner, is active, though non-violent,physical resistance. Buckley’s actions transparentlyare continuously active in nature though they primar-ily involve the gravitational laws of physics. Defeat-ing that required a law enforcement officer to subjecthimself to the perils of vehicular traffic next to adarkened roadside. Though Respondent concedesthere is no evidence to support an argument that thepurpose of the active resistance is physical injury toDeputy Rackard, that unintended result could be avery real outcome. When a deputy repeatedly at-tempts to lift a person to accomplish a lawful arrest,and the arrestee moves so as to make it impossible tolift him, the arrestee moves to a middle ground on thecontinuum that is less than active violent resistancebut is more than merely "passive." It is within thatgray middle ground fact-bound morass, that one must

determine what is reasonable, and whether it hasbeen clearly established as such.

REASONS FOR DENYING THE PETITION

Petitioner encourages the court to issue the writbecause the Eleventh Circuit’s opinion below is incon-

sistent with Graham v. Connor, 490 U.S. 386 (1989)and Hope v. Pelzer, 536 U.S. 730 (2002), because thecase presents recurring questions of ever increasing

7

importance, and because this case presents an idealvehicle for review because of the "undisputablerecord." Respondent argues that none of those asser-tions is true or valid.

I. Conflict with Other Decisions

The first thing that should be kept in mind isthat the narrowest grounds on which the Circuitcourt majority agreed is that the actions of DeputyRackard in deploying his Taser three times in drive-stun mode were not contrary to clearly establishedlaw. In order for Rackard individually to enjoy quali-fied immunity from suit, so long as he does not useforce which is objectively unreasonable, no constitu-

tional tort arises.

The decision of the Eleventh Circuit below is notin conflict with either Graham v. Connor, 490 U.S.386 (1989) or Hope v. Pelzer, 536 U.S. 730 (2002).Graham teaches that in deciding whether a givenapplication of force is lawful, consideration must begiven to the severity of the crime at issue, whetherthe suspect poses an immediate threat to the safety ofthe officer or officers, and whether there is activeresistance or attempt at flight. Hope explains thatalthough it is not always necessary for pre-existingcase law to be "materially similar" or "fundamentallysimilar" to provide the ’~Cair warning" required byHope, fbr qualified immunity to be denied, the allegedwrongful conduct must lie so obviously at the core of

8

the right violated, that the unlawfulness of the con-duct is readily apparent.

It is apparent that what the Eleventh Circuit’spanel did was the analytical process required forresolution of qualified immunity questions at thetime. It employed the "rigid order of battle" requiredby Saucier v. Katz, 533 U.S. 194 (2001), and Brosseauv. Hagan, 543 U.S. 194, 201-202 (2004). They deter-mined first whether the Constitution had been vi-olated and then moved on to whether on a given set offacts, the right and its factual parameters was clearlyestablished. This process was required until Pearson

v. Callahan, 129 S.Ct. 808 (2009) was decided earlierthis year. Respondent suggests that there is no con-flict with the decisions of this court. Petitioner at-tempts to manufacture conflict not by the content ofthe Eleventh Circuit’s opinion but by what thatopinion purportedly "resurrected" sub-silentio - thatis what the opinion did not say was in conflict withthe law as established by this court.

The circuit court worked its way through the"fact bound morass" of what is reasonable, balancingthe nature and quality of the governmental intrusionagainst the importance of the governmental interestsinvolved. Scott v. Harris, 550 U.S. 372 (2007). Itproperly considered the physical hazards and dan-gers, that Buckley’s type of resistance preventedRackard from "truly controlling" Buckley, Rackard’sfailed but repeated efforts at persuasion prior to Taserdeployment, Rackard’s repeated pre-deployment warn-ings, and Rackard’s efforts to assist Buckley to his

9

feet at least three times prior to de-ployment. Thisthe court concluded, after careful application of facts,was not unreasonable at least two of three times, andnot contrary to clearly established law as to the third.The Eleventh Circuit did exactly as guided by thisCourt.

Petitioner further argues that the writ shouldissue because the Buckley decision below has "createda conflict among the circuits where none previouslyexisted." (Petition for Certiorari at p. 12). Petitionercites to five different circuit court opinions in supportof that assertion. In fact, each of the decisions ref-erenced is readily distinguishable and none is logical-ly in conflict with the decision sub judice. HeadwatersForest Defense v. County of Humboldt, 276 F.3d 1125(9th Cir. 2002) involved the deployment of pepperspray on persons participating in a "peaceful protest."It is not clear from the opinion that the officer’s usesof force were intended to accomplish an arrest. In-stead the pepper spray was utilized to disperse peoplewho had utilized devices known as "black bears" toconnect themselves to each other thereby effectivelyincapacitating themselves. The pepper spray wasbeing used as a matter of policy and a tactical re-sponse on a number of occasions to discourage theprotesters continued use of this tactic. This factpattern does not then involve use of moderate non-lethal force in effectuation of lawful arrests on per-sons who had the ability to effectively resist.

Petitioner points to the Ninth Circuit once againin LaLonde v. County of Riverside, 204 F.3d 947 (9th

10

Cir. 2000). However, the narrow holding in thatpepper spray case is that it was error to take from ajury by case dispositive motion the question overwhether it was constitutionally excessive force torefuse for twenty to thirty minutes to rinse out theeyes of a person pepper sprayed. After the arrest ofthis Petitioner, it is undisputed that Deputy Rackardinflicted no additional pain or injury and did not actso as to exacerbate Mr. Buckley’s discomfort. TheLaLonde court merely decided factual disputes re-mained for jury consideration.

Petitioner argues that inter-circuit conflict arisesbetween the Eleventh Circuit’s decision below andCasey v. City of Federal Heights, 509 F.3d 1278 (10thCir. 2007). In fact, Casey is readily distinguishableand can be easily harmonized. In Casey, a FourthAmendment violation occurred because Taser de-ployment occurred "immediately and without warn-ing." Casey, at 1285. The Court even commented thatit did not rule out the possibility that there might becircumstances in which the use of a Taser against anon-violent offender might be appropriate, particular-ly when officers were confronted with "active" (asdistinguished from "violent") resistance. When theTenth Circuit confronted a fact pattern remarkablysimilar to that presented in this case involving theuse of pepper spray on a female after numerouswarnings during a traffic stop who offered passiveresistance and repeatedly refused lawful commands,the court found no constitutional x~iolations emphasiz-ing safety concerns for the officer who worked at a

11

"narrow shoulder of a busy highway over fifty min-

utes." It should be mentioned that this decision arosefrom an incident which occurred in broad daylight.Mecham v. Frazier, 500 F.3d 1200 (10th Cir. 2007).

Petitioner’s citations to Amnesty America v. Town

of West Hartford, 361 F.3d 113 (2d Cir. 2004) andBuck v. City of Albuquerque, 549 F.3d 1269 (10th Cir.2008) for the proposition that each demonstratesinter-circuit conflict is unsupportable. Each of thosecases did little more than decide either that disputedissues of fact precluded resolution as a matter of lawor that the allegations in a complaint were sufficientto survive a motion to dismiss. Amnesty America wasan official capacity case and did not invoke the quali-fied immunity question. Buck is not factually theequivalent of this case in that it involved the deploy-ment of tear gas and pepper balls on political demon-strators at the University of New Mexico. The forcewas deployed on numerous people, many of whomwere simply exercising their First Amendment Rightsand who were not resisting any effort at lawful arrest.

Finally, Petitioner’s reference to Hickey v. Reeder,12 F.3d 754 (8th Cir. 1993) to support an argumentfor inter-circuit conflict seems the greatest stretch.That case, raising Eighth Amendment issues, broughtinto question the deployment of a stun gun not to aidein accomplishing a lawful arrest, but to simply coercea prisoner into sweeping his cell floor. There is a wideconceptual chasm between whether it is reasonable

for a lone officer on a darkened roadside to deploy a

12

Taser to accomplish the lawful arrest of an actively,albeit non-violently, resisting person and the deploy-ment of a Taser on a person to enforce jail cell clean-liness standards in a secure setting with six or sevenfellow correctional officers present.

The Petitioner concludes his survey of othercircuits’ contrary decisions by commenting:

"All four circuits understood what the Elev-enth Circuit failed to grasp - the FourthAmendment does not permit the deliberateinfliction of pain on submissive non-violentarrestees." (Petition for Certiorari at p. 14)

This much we all grasp. It is a truism. What thePetitioner does not grasp is what the Eleventh Cir-cuit understood. Mr. Buckley was not clearly identifi-able as a "submissive non-violent arrestee" who posedno threat of injury or harm to Deputy Rackard orhimself and, once he was "controlled", no additionaldeployments of Tasers or other applications of forceoccurred.

II. The Question Presented Does Not NeedSupreme Court Resolution

The paths of Mr. Jesse Buckley and Deputy

Jonathan Rackard intersected on March 17, 2004. Atthat time Tasers were a much less familiar deviceissued to law enforcement officers as a less-than-lethal force option. Florida’s experiences with them inthe last few years has led the Florida Legislature, asa matter of state-wide policy, to establish guidelines

13

for their use which are almost certainly more restric-tive than that imposed by the Fourth Amendment tothe United States Constitution. Effective June 26,2006, Florida enacted Florida Statute §943.1717(1). Itprovides:

"A decision by a law enforcement officer, cor-rectional officer, or correctional probation of-ricer to use a dart firing stun gun mustinvolve an arrest or a custodial situation dur-ing which the person who is the subject of thearrest or custody escalates resistance to theofficer from passive physical resistance to ac-tive physical resistance and the person:

(a) Has the apparent ability to physicallythreaten the officer or others; or

(b) Is preparing or attempting to flee or es-cape."

Respondent acknowledges that he would arguethat his actions toward Mr. Buckley would remainproper even under Florida’s new stricter statute.However, the average non-violent political protesterat a sit-in, in Florida, has not faced the threat oflawful Taser deployment for almost three years.

Furthermore, the Eleventh Circuit has not coun-tenanced the arbitrary and gratuitous use of Tasersthat the Petitioner fears, should the Petition bedenied. Without any factually similar case, the Elev-

enth Circuit has denied qualified immunity to policeofficers who rased a "motionless and frightened" 53pound 6 year old who after disrupting her elementary

14

school class, apparently held officers at bay with a one-half inch piece of glass. Moretta v. Abbott, 280 Fed.Appx. 823 (llth Cir. 2008), non-published opinior~

III. This Case is Not an Ideal Vehicle for Re-view of the Questions Presented

That this case is factually simple and because theincident can be viewed on YouTube (as convenientlybut unnecessarily advertised in the Petition) does notmake it the ideal case to decide device-specific stan-dards for the use of force by law enforcement officers.

Good science has been and is being done on thebio and electro-mechanics of the operation of theTaser. These studies are being done by not only itsmanufacturer, but independent researchers, and eventhe United States Military. For example, on October18, 2004, the Department of Defense issued its reporton "Human Effectiveness and Risk Characterizationof Electromuscular Incapacitation Devices." Last yearacademic researchers at Wake Forest University,Virginia Commonwealth University, George Washing-ton University and Louisiana State University pub-lished "Safety and Injury Profile of ConductedElectrical Weapons Used by Law Enforcement Offi-cers Against Criminal Suspects."

Though Petitioner has repeatedly commented

that Tasers deliver a 50,000 volt current, this recordprovides no scientific context informing whether thatfactoid has any meaning beyond that it sounds"shocking."

15

With an appropriate science and technologysupported record the court could consider, in properscientific context, that the Taser, though high voltageis needed to deliver an incapacitating stun, is a lowcurrent system that delivers only about 3.8 mil-liamps, or less than 4/1000 of an amp. From a properrecord the court could evaluate a given use of forcearmed with the knowledge that static-electricity froma door knob after walking on carpet in stocking feetduring winter might yield a 50,000 volt shock. Thereare numerous cases among the more than one hun-dred federal court decisions referenced in the Petitionwhere the Supreme Court’s record would be sup-ported by not only a video but depositions and experttestimony from which an opinion could be renderedbased upon other than a mere videotape and therepeated chanting of 50,000 volts in a scientific void.

CONCLUSION

The Petition should be denied. The EleventhCircuit’s narrowest holding on which the majority ofjudges would both agree, is that Deputy Rackard’sdecision to deploy a Taser to a continuously actively,though not violently, resisting person after repeatedwarnings to accomplish a lawful arrest was entitledto qualified immunity is not erroneous. Conflictsamong the circuits have not been shown to exist, andthis scant record provides very little for this court to

16

work from to define standards of nationwide applica-tion.

Respectfully submitted,

JOHN W. JOLLY, JR.Florida Bar No. 291961JOLLY & PETERSON, P.A.

2145 Delta Blvd., Suite 200Post Office Box 37400

Tallahassee, Florida 32315(850) 422-0282

Attorney for Respondent