No.

3~pr=~nt Coert,

I O-6 21 liOV 5- ~0

OFFICE ur THE CLERK

upreme eurt of the niteb tate

KEITH C. BROOKS,

Petitioner,

STEVE GAENZLE,

Respondent.

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

For The Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

PAUl, S. SWEDLUNI)

Counsel of RecordMARC D. FLINK

JUSTIN T. WINQUISTBAKER HOSTETLER, LLP303 East 17th Avenue, Suite 1100Denver, Colorado 80203-1264Telephone: 303-861-0600Facsimile: 303-861-7805pswed|und@bakerlaw.com

Counsel for PetitionerKeith C. Brooks

(~OCKI,E I,AW }{RII"A" PRINTING CO. (800i 225-(LgBI()R (TAI,I, (’()l,l,I.;("I’ 10’2)312-2g31

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QUESTION PRESENTED

The 10th Circuit Court of Appeals ruled that a

fleeing suspect who was intentionally shot in theback by police, but not thereafter promptly arrested,was not "seized" for Fourth Amendment purposes.The ruling creates a conflict between the 10th CircuitCourt of Appeals and the 11th, 8th, and 6th Cir-cuit Courts of Appeals on the following questionpresented:

IS SHOOTING A FLEEING SUSPECT INTHE BACK A SEIZURE BY PHYSICALFORCE EVEN THOUGH THE SUSPECT ISNOT IMMEDIATELY ARRESTED?

ii

LIST OF PARTIES

1. Keith C. Brooks

2. Steve Gaenzle

111

TABLE OF CONTENTS

Page

Petition For A Writ Of Certiorari ........................1

Opinions Below ....................................................1

Jurisdiction ..........................................................

Constitutional Provision At Issue .......................2

Statement Of The Case .......................................3

A. Facts Of The Case .....................................3

B. What Did The District Court Decide? .......6

C. What Did The 10th Circuit Court OfAppeals Decide? .........................................6

Why Issue A Writ Of Certiorari? .........................7

Because The 10th Circuit Court Of Appeals’Decision That Shooting An Unarmed FleeingSuspect In The Back Is Not A Seizure If TheEffort To Arrest Was Not Successful ConflictsWith Decisions Of The 11th, 8th, And 6th Cir-cuit Courts Of Appeals, As Well As ThisCourt’s Decisions In Terry, Garner, AndHodari, A Writ Of Certiorari Should Issue InOrder To Restore Uniformity Among The Cir-cuits On A Vital And Important FourthAmendment Question .......................................7

A. How Has This Court Defined A "Seizure"In Its Precedent? .......................................7

B. How Have The Circuit Courts Of AppealsInterpreted And Implemented This Court’sSeizure Precedent In Shooting Cases? ......13

iv

Co

Do

TABLE OF CONTENTS - Continued

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How Did The 10th Circuit Court OfAppeals Decide The Brooks Case? ............. 19

A Writ Of Certiorari Should Issue Be-cause: ..........................................................24

1. Standards Applicable To Seizure ByThe Use Of Deadly Force Are Im-portant Matters Of ConstitutionalLaw ......................................................24

2. The 10th Circuit’s Brooks DecisionConflicts With This Court’s SeizurePrecedent .............................................25

a. The 10th Circuit’s Brooks DecisionConflicts With Hodari By Char-acterizing Its Seizure StandardAs Dicta ..........................................26

b. The 10th Circuit’s Brooks DecisionConflicts With This Court’s Sei-zure Precedent By Analyzing TheShooting Of A Suspect As A "ShowOf Authority" ..................................27

c. The 10th Circuit’s Brooks DecisionConflicts With This Court’s Sei-zure Standards By Requiring"Physical Control" Or Other Con-ditions Synonymous With ArrestAs A Condition Precedent To APhysical Force Seizure ...................28

V

TABLE OF CONTENTS - Continued

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d. The 10th Circuit’s Brooks DecisionConflicts With This Court’s Sei-zure Precedent By Analyzing TheShooting Of A Suspect As An "At-tempted Seizure" ............................29

The 10th Circuit’s DeterminationExempts From Constitutional PurviewPolice Shootings In Which Suspects"Escape" Or Are Not Arrested .............30

The Conflict Between The 10th Cir-cuit’s Seizure Standard And The 11th,8th, 7th, 6th, And 3rd Circuits’ Sei-zure Standards Impairs The UniformApplication Of Fourth AmendmentPrinciples Across The Country ............31

a. Circuit Courts Recognize ThatHodari Enunciated A DefinitiveSeizureStandard But The 10thCircuit Treats Hodari’s StandardAs Dicta ..........................................32

b. Circuit Courts That RecognizeHodari’s Seizure Standard Do NotCondition A Physical Force Sei-zure On The Success Of The EffortTo Arrest .........................................33

c. The 10th Circuit’s Refusal To Rec-ognize Hodari’s Seizure StandardFrustrates The Uniform Applica-tion Of The Law ..............................35

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TABLE OF CONTENTS - Continued

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5. Hodari’s Bright Line Physical ForceSeizure Standard Provides A ReadilyApplicable Rule That Protects Society’sInterest In Discouraging Unnecessary,Non-Consensual Touching Without Im-pairing Law Enforcement Functions .........36

6. The 10th Circuit’s Brooks Decision IsLegally And Factually An AppropriateCase To Firmly Establish The PrincipleThat Shooting A Fleeing Suspect Is ASeizure By Application Of Physical ForceAnd Not Merely A "Show Of Authority"Or "Attempted Seizure" .............................38

Conclusion ............................................................39

Appendix

Brooks v. Gaenzle, 2010 WL 3122800 (10th Cir.2010) .................................................................App. 1

Brooks v. Gaenzle, 2009 WL 3158138 (D.Ct.Colo.2009) ............................................................... App. 41

10th Circuit/U.S. Supreme Court SeizureAnalysis Comparison Charts ......................... App. 54

vii

TABLE OF AUTHORITIES

Page

CASES

Acevedo v. Canterbury, 457 F.3d 721 (7th Cir.2006) ........................................................................18

Bella v. Chamberlain, 24 F.3d 1251 (10th Cir.1994) ........................................................................21

Brooks v. Gaenzle, 2009 WL 3158138 (D. Colo.2009) ................................................................ 1, 6, 23

Brooks v. Gaenzle, 2010 WL 3122800 (10th Cir.2010) ................................................................ passim

Brower v. County of Inyo, 489 U.S. 593, 109S.Ct. 1378 (1989) ............................................. passim

California v. Hodari, 499 U.S. 621, 111 S.Ct.1547 (1991) ...................................................... passim

Cameron v. City of Pontiac, 813 F.2d 782 (6thCir. 1987) ..................................................... 22, 23, 29

Carlson v. Bukovic, 2010 WL 3432218 (7th Cir.) ......18

Carrv. Tatangelo, 338 Fo3d 1259 (11th Cir.2003) ................................................ 13, 14, 15, 33, 34

Ciminillo v. Streicher, 434 F.3d 461 (6th Cir.2006) ............................................................16, 17, 34

Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993) .........15, 34

Connecticut v. Doehr, 501 U.S. 1 (1991) .....................26

County of Sacramento v. Lewis, 523 U.S. 833,118 S.Ct. 1708 (1998) ............................ 20, 22, 29, 30

Fisher v. Memphis, 234 F.3d 312 (6th Cir.2001) ............................................................ 17, 33, 34

VIII

TABLE OF AUTHORITIES - Continued

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Gaylor v. United States, 74 F.3d 214 (10th Cir.1996) ........................................................................21

Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997) .....21, 29

Leafy. Shelnutt, 400 F.3d 1070 (7th Cir. 2005) .........18

Lemery v. Beckner, 323 Fed.Appx. 644 (10thCir. 2008) ...........................................................37, 38

Ludwig v. Anderson, 54 F.3d 465 (8th Cir.1995) ..................................................................16, 34

Martinez v. Nygaard, 831 F.2d 822 (9th Cir.1987) ........................................................................18

Mercado v. City of Orlando, 407 F.3d 1152(11th Cir. 2005) ........................................................15

Moore v. Indehar, 514 F.3d 756 (8th Cir. 2008) .........16

Reeves v. Churchich, 484 F.3d 1244 (10th Cir.2007) ........................................................................21

Sargent v. City of Toledo, 150 Fed.Appx. 470(6th Cir. 2005) .............................................17, 32, 34

Schulz v. Long, 44 F.3d 643 (8th Cir. 1995) ...............32

Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694(1985) ........................................................... 7, 8, 9, 19

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868(1968) ......................................................... 7, 8, 17, 24

United States v. Bradley, 196 F.3d 762 (7th Cir.1999) ............................................................ 22, 23, 35

United States v. Brown, 448 F.3d 239 (3rd Cir.2006) ............................................................ 17, 32, 33

ix

TABLE OF AUTHORITIES - Continued

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United States v. Dupree, 2010 WL 3063290 (3rdCir.) .............................................................. 18, 35, 36

United States v. Hernandez, 27 F.3d 1403 (9thCir. 1994) ...........................................................22, 23

Vaughan v. Cox, 343 F.3d 1323 (11th Cir.2003) ...................................................... 14, 15, 33, 34

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495(2000) .......................................................................29

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. IV ........................................passim

28 U.S.C. § 1254 ...........................................................2

42 U.S.C. § 1983 ...............................................1, 14, 25

CRS § 18-1.3-406 ..........................................................5

CRS § 18-1.3-801 ..........................................................5

OTHER AUTHORITIES

4 Wayne R. LaFave, Search and Seizure: ATreatise on the Fourth Amendment § 9.4(a),p. 427 (4th Ed. 2010) ...............................................25

LaFave, "Case-By-Case Adjudication" Versus"Standardized Procedures:" The RobinsonDilemma, 1974 ........................................................36

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PETITION FOR A WRIT OF CERTIORARI

Keith C. Brooks respectfully petitions for a writof certiorari to review the judgment of the UnitedStates Court of Appeals for the 10th Circuit.

OPINIONS BELOW

The decision of the United States Court of Ap-peals for the 10th Circuit in Brooks v. Gaenzle, 2010

WL 3122800 (10th Cir. 2010), is attached to thispetition as Appendix Pages 1-40. The memorandumopinion of the United States District Court for theDistrict of Colorado entering summary judgment onpetitioner’s case on the seizure issue, Brooks v.

Gaenzle, 2009 WL 3158138 (D. Colo. 2009), is ex-cerpted and attached as Appendix Pages 41-53.

JURISDICTION

On July 25, 2006, petitioner brought suit againstrespondent and other defendants in the United StatesDistrict Court for the District of Colorado pursuantto 42 U.S.C. § 1983 alleging that respondent hadviolated the Fourth Amendment to the United StatesConstitution by shooting petitioner in the back as hefled, unarmed, from the scene of a burglary. TheHonorable Michael J. Watanabe, Magistrate Judge

for the United States District Court for the Districtof Colorado, appointed the undersigned counsel torepresent petitioner pro bono.

On June 25, 2007, Judge Watanabe filed his find-ings and recommendations wherein he recommendedthat summary judgment in favor of defendants beentered. On September 29, 2009, the HonorableChristine M. Arguello, United States District CourtJudge for the District of Colorado, affirmed andadopted the findings and recommendations and dis-missed petitioner’s complaint.

On August 10, 2010, The United States Court ofAppeals for the 10th Circuit issued an opinion affirm-ing the District Court’s order. This Court’s juris-diction is invoked pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISION AT ISSUE

Fourth Amendment ToThe United States Constitution

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shallnot be violated, and no Warrants shall issue,but upon probable cause, supported by Oathor affirmation, and particularly describingthe place to be searched, and the persons orthings to be seized.

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STATEMENT OF THE CASE

A. Facts Of The Case

On October 17, 2005, petitioner Keith C. Brooks,a black male, and his accomplice, Nicholas Acevedo, awhite male, forcibly entered a residence located onLindstrom Drive, E1 Paso County, Colorado, intendingto burglarize the home. A neighbor, Tim McElroy,witnessed Brooks’ and Acevedo’s forced entry andcalled 911.

E1 Paso County Sherriff’s Deputies Steve Gaenzleand Paul Smith were dispatched to the LindstromDrive residence. Outside the garage, Gaenzle thoughthe could hear voices from two, possibly three, peopleinside. Gaenzle and Smith entered the garagethrough the side yard door announcing "Sheriff’s

Office" or some similar announcement. Once insidethe garage, Gaenzle and Smith observed a white malekneeling in the garage. The white male stood up,turned, and ran into the house through a door con-necting the garage with the kitchen.

The white male suspect closed the door behindhim and attempted to barricade the door by pushinghis weight against it. Gaenzle announced "Sheriff’sOffice" one more time before kicking at the door withhis foot. Gaenzle kicked at the door two more timesand each time he could see the white male suspect’s

clothing pushing against the inside of the door.

After Gaenzle kicked the door for the third time,a shot was fired through the door from inside the

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kitchen. The bullet passed between Gaenzle and

Smith. Gaenzle and Smith then retreated back intothe side yard, confirmed that neither was injured,and then observed a black male, Brooks, fleeingacross the back yard toward the rear fence.

At the time Gaenzle and Smith entered thegarage, Brooks was in a back bedroom. Brooks heardvoices and commotion. He left the bedroom andarrived in the dining room area adjacent to thekitchen just as Acevedo pulled a gun from his waist-band and fired through the door. Believing Acevedohad just fired on returning homeowners, Brooksunlocked a sliding glass door in the dining room andstarted running through the back yard toward theback fence. Brooks was not carrying a gun.

Gaenzle claims he saw a gun in Brooks’ hand asBrooks ran toward the fence. Tim McElroy, whocontinued to observe events unfolding across thestreet, saw Brooks running across the yard but sawno gun in his hand. Gaenzle yelled "Stop," thoughBrooks heard no such command, before he shotBrooks in the back as Brooks was climbing the 6-foot-high back yard fence. The bullet lodged inside Brooks’torso millimeters from his spine, where it remains tothis day. Smith, however, never raised, aimed, or firedhis weapon at Brooks.

Despite being shot, Brooks climbed over thefence. Next, Gaenzle saw him "hobbling" and "limp-ing" as he continued to flee the scene through the

neighboring back yard. Though Gaenzle had hobbledhis target, he and Smith did not pursue Brooks.

Brooks was arrested three days after the bur-glary. Law enforcement cornered Acevedo 16 daysafter the burglary. When they did, Acevedo was shotdead on the street as he drew a gun and attempted toshoot the arresting officer. When he died, Acevedo

was clutching the gun used to fire on the deputiesduring the Lindstrom Drive burglary.

Brooks was charged and tried for: (1) criminalattempt to commit murder in the first degree, afterdeliberation, of a police officer; (2) criminal attempt tocommit murder in the second degree; (3) assault inthe first degree; (4) first degree burglary - assault ormenace; (5) first degree burglary - deadly weapon;(6) menacing; and (7) possession of a weapon by afelon. Brooks also was charged with a sentencingenhancement under CRS § 18-1.3-406 for allegedlyusing and possessing a deadly weapon during thecommission of the charged offenses.

A jury convicted Brooks of all charges except theweapons charges. The verdict effectively exoneratedhim of firing on the deputies. Brooks’ conviction onthe attempted murder charge was based solely on hiscomplicity with Acevedo. Brooks was sentenced to148 years as an habitual criminal under CRS § 18-1.3-801. Brooks’ criminal record contains no evidencethat Brooks ever carried or was known for carrying afirearm.

6

Following his acquittal on the weapons charge,Brooks filed suit as a pro se plaintiff against Gaenzlealleging that Gaenzle used excessive force when heshot the unarmed Brooks in the back. Brooks allegedthat the use of deadly force under the circumstancesviolated his Fourth Amendment right to be free fromthe unreasonable seizure of his person.

B. What Did The District Court Decide?

Based on the fact that Brooks "managed to climbthe fence and elude arrest for three days," the districtcourt decided that "Gaenzle’s gunshot amounted tonothing more than a non-actionable attempted sei-zure." Brooks, 2009 WL 3158138 at *5; Appendix at50. The district court recognized the restraint in-herent in being shot in the torso when it found thatGaenzle’s gunshot caused "pain or slowed the paceof [Brooks’] escape." Brooks, 2009 WL 3158138 at *6;Appendix at 52. But, for the district court, theacknowledged impairment of Brooks’ movement wasinsufficient to constitute a seizure because it did not"bring [Brooks] within the government’s possessionor control." Brooks, 2009 WL 3158138 at *6; Appendix

at 52.

C. What Did The 10th Circuit Court Of Ap-peals Decide?

Even though Gaenzle shot Brooks in the backwith the intent to stop him, the appellate court ana-lyzed the shooting as a mere "show of authority"

because Brooks escaped arrest after being shot.

Brooks v. Gaenzle, 2010 WL 3122800 at *7, *8 (10thCir.); Appendix at 17, 18, 19, 21. Without the "ter-mination of movement or submission" required tomeet the "show of authority" standard for a seizure,the appellate court found the act of shooting Brookswas nothing more than an "attempted seizure."Brooks, 2010 WL 3122800 at *7, *8, *9; Appendix at

17, 21-22, 24.

WHY ISSUE A WRIT OF CERTIORARI?

Because The 10th Circuit Court Of Appeals’Decision That Shooting An Unarmed FleeingSuspect In The Back Is Not A Seizure If TheEffort To Arrest Was Not Successful ConflictsWith Decisions Of The llth, 8th, And 6th Cir-cuit Courts Of Appeals, As Well As This Court’sDecisions In Terry, Garner, And Hodari, A WritOf Certiorari Should Issue In Order To RestoreUniformity Among The Circuits On A Vital AndImportant Fourth Amendment Question

A. How Has This Court Defined A "Seizure" InIts Precedent?

This Court has recognized two modes of effectingthe seizure of a person: (1) by the application ofphysical force with the intent to restrain; or (2) by aperson’s submission to a show of authority. Whenphysical force is used, this Court has held the effort to

arrest need not succeed in order to effect a seizure.California v. Hodari, 499 U.S. 621, 626, 111 S.Ct.

1547, 1551 (1991). The 10th Circuit’s Brooks opinionfails to follow this standard because it classifies anunsuccessful effort to arrest by use of deadly, physicalforce as merely a "show of authority."

Terry v. Ohio, 392 U.S. 1, 16, 19, 88 S.Ct. 1868,1877, 1879 (1968), examined the constitutionality of"stop and frisk" investigative tactics. In that context,Terry defined a seizure as an event where an "officer,by means of physical force or show of authority, has insome way restrained the liberty of a citizen." Terry,392 U.S. at 19, n. 16, 88 S.Ct. at 1879. But Terryexpressly held that the "restraint" required for aseizure need not result in custodial arrest:

It is quite plain that the Fourth Amendmentgoverns "seizures" of the person which do noteventuate a trip to the station house andprosecution for crime -"arrests" in tradi-tional terminology .... We therefore rejectthe notions that the Fourth Amendment doesnot come into play at all as a limitation uponpolice conduct if the officers stop short ofsomething called a "technical arrest"....

Terry, 392 U.S. at 16, 19, 88 S.Ct. at 1877, 1879

(1968).

In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694(1985), a case with facts similar to this case, thisCourt ruled that "there can be no question" thatshooting an unarmed fleeing suspect constitutes aFourth Amendment seizure. Garner, 471 U.S. at 7,105 S.Ct. at 1699. The Garner court observed that

9

"[t]he intrusiveness of a seizure by means of deadly

force is unmatched." Garner, 471 U.S. at 9, 105 S.Ct.at 1700. The Court reasoned that "[w]henever anofficer restrains the freedom of a person to walkaway, he has seized that person." Garner, 471 UoS. at7, 105 S.Ct. at 1699. Although the shot fired bypolice killed Garner, Garner does not hold that theapplication of deadly force must be fatal before it is

a seizure.

After Garner, this Court revisited the fatal sei-zure of a fleeing suspect in Brower v. County of Inyo,

489 U.S. 593, 109 S.Ct. 1378 (1989). Brower is theprimary case on which the 10th Circuit based itsBrooks decision. In Brower, police killed a suspect in ahigh-speed car chase by concealing a roadblock be-hind a bend in the road and blinding the suspect tothe roadblock ahead by aiming headlights at hiswindshield. The trial and appellate courts ruled thatthe suspect had not been seized because he had notsubmitted to any of law enforcement’s "shows ofauthority" at any time in the preceding 20-mile highspeed chase, though "[hie had a number of opportuni-ties to stop his automobile prior to the impact."Brower, 489 U.S. at 595, 109 S.Ct. at 1381.

This Court reversed, holding that the suspect’sdecision to flee, and his success at fleeing, was irrele-

vant to the reasonableness of the means used toterminate his flight. Brower, 489 U.S. at 595, 109S.Ct. at 1381. In dicta the Brower court stated thatsince "[v]iolation of the Fourth Amendment requiresan intentional acquisition of physical control," for

10

purposes of decedent’s estate’s case it had been"enough for a seizure that [the decedent] was stopped

by the very instrumentality set in motion or put inplace to achieve that result." Brower, 489 U.S. at 599,109 S.Ct. at 1382.

This dicta in Brower troubled Justices Stevens,Brennan, Marshall, and Blackmun, who concurred inthe result but did not join in the opinion because:

[I]ts dicta seem designed to decide a numberof cases not before the Court and to establishthe proposition that ’[v]iolation of the FourthAmendment requires an intentional acquisi-tion of physical control.’ Ante at 1380. The in-tentional acquisition of physical control ofsomething is no doubt a characteristic of thetypical seizure, but I am not entirely surethat it is an essential element of every sei-zure or that this formulation is particularlyhelpful ....

Brower, 489 U.S. at 600, 109 S.Ct. at 1383.

In Hodari, this Court resolved the problem posedby Brower’s dicta by ruling that "physical control" isnot an "essential element of every seizure.’’1 Brower,489 U.S. at 600, 109 S.Ct. at 1383; Hodari, 499 U.S.

1 As observed in Hodari, common law seizure of an in-animate object required physical control over the object. Whilephysical control over an animate object is one indicia of aseizure, "physical control" is not a necessary element for theseizure of an animate object. Hodari, 499 U.S. at 624, 111 S.Ct.at 1550.

11

at 626, 111 S.Ct. at 1550. In Hodari a defendantmoved to suppress cocaine he discarded as he fledfrom police. The police overtook and arrested the

defendant and retrieved the cocaine he discardedduring his flight. The defendant argued that he hadbeen seized the moment he fled with the police inpursuit. The Hodari Court disagreed. According to

the Court, Hodari had not been seized before hediscarded the cocaine because Hodari fled OfficerPertoso’s show of authority and had been "untouchedby Officer Pertoso at the time he discarded the co-caine." Hodari, 499 U.S. at 625, 111 S.Ct. at 1550.

The Hodari Court looked to common law to de-fine the scope of "seizure" or "arrest" as contemplatedby the Fourth Amendment, and stated as follows:

To constitute an arrest, however - the quin-tessential "seizure of the person" under ourFourth Amendment jurisprudence - themere grasping or application of physical forcewith lawful authority, whether or not it suc-ceeded in subduing the arrestee, was suffi-cient. See, e.g., Whitehead v. Keyes, 85 Mass.495,501 (1862) ("[A]n officer effects an arrestof a person whom he has authority to arrest,by laying his hands on him for the purpose ofarresting him, though he may not succeed instopping and holding him."); i Restatementof Torts §41, Comment h (1934). As onecommentator described it:

There can be constructive detention,which will constitute an arrest, althoughthe party is never actually brought

12

within the physical control of the partymaking the arrest. This is accomplishedby merely touching, however slightly,the body of the accused, by the partymaking the arrest and for that purpose,although be does not succeed in stoppingor holding him even for an instant; aswhere the bailiff had tried to arrest onewho fought him off by a fork, the courtsaid, "If the bailiff touched him, that hadbeen an arrest .... "A. Cornelius, Searchand Seizure 163-164 (2d Ed. 1930).

Hodari, 499 U.S. at 625,111 S.Ct. at 1550.

From these common law principles, the HodariCourt concluded that "an arrest is effected by theslightest application of physical force, despite thearrestee’s escape." Hodari, 499 U.S. at 625, 111 S.Ct.at 1550. Further, the Court stated that:

The word ’seizure’ readily bears the meaningof a laying on of hands or application ofphysical force to restrain movement, evenwhen it is ultimately unsuccessful.

Hodari, 499 U.S. at 625, 111 S.Ct. at 1550. Thus,Hodari ruled that "[a]n arrest requires either physicalforce ... or, where that is absent, submission to theassertion of authority." Hodari, 499 U.S. at 626; 111S.Ct. at 1551 (emphasis added). Or, stated anotherway, a seizure is an "application of physical force torestrain movement, even when it is ultimately unsuc-cessful." Hodari, 499 U.S. at 626 (emphasis added).For purposes of physical force seizures (as opposed to

13

"show of authority" seizures), what matters is thatphysical force is applied to the suspect’s person with

the intent to restrain movement, not the success ofthe effort to restrain.

B. How Have The Circuit Courts Of AppealsInterpreted And Implemented This Court’sSeizure Precedent In Shooting Cases?

Except for the 10th Circuit’s decision in Brooks,the circuit courts of appeals have consistently held, inkeeping with Hodari’s precedent and progeny, thatpolice effect a seizure the moment a bullet or similarprojectile impacts their intended target. Though insome cases the suspects were killed, arrested, orbrought down soon after being shot by police, thecourts of appeals’ decisions reflect that success in"terminating" a target’s movement plays no role in, is"immaterial" to, the seizure determination in gunshotcases.

The llth Circuit Court of Appeals’ decision inCarr v. Tatangelo, 338 F.ad 1259 (11th Cir. 2003),found that shooting a suspect is a seizure eventhough the suspect was never arrested. In Carr, anofficer staking out Carr and another suspect shotCarr in the chest believing that he had heard Carr orthe other suspect actuating the slide of a semi-automatic weapon. Without even realizing he hadbeen shot, Carr fled into his house before collapsing

in the hallway. The officers did not pursue Carr butinstead retreated to their cruisers to call for backup.

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Carr was taken to a hospital and was never arrestedor charged with any offense.

When Carr sued under 42 U.S.C. § 1983, theofficer defended claiming that "a seizure did not occur

under the Fourth Amendment because [Carr] was notstopped but ran back into his house." Carr, 338 F.3dat 1268. The Carr court disagreed with the officer’sdefense, holding that:

Officer Fortson had shot to kill to save thelife of Officer Tatangelo, and it is his intentand the physical contact of the bullet from hisgun that governs our Fourth Amendmentseizure analysis. Although Carr was not im-mediately stopped by the bullet from OfficerFortson’s gun, he nevertheless was seizedwithin the meaning of the Fourth Amend-ment when the bullet struck or contactedhim.

Carr, 338 F.3d at 1268 (emphasis added).

After Carr, the 11th Circuit again determinedthat police effected a seizure the moment a "bulletstruck or contacted" a suspect without considerationof whether the suspect was subsequently arrested.Carr, 338 F.3d at 1268. In Vaughan v. Cox, 343 F.3d1323 (11th Cir. 2003), police attempted to terminate ahigh-speed pursuit and rolling roadblock of a suspectvehicle by firing three shots at the vehicle’s driver.

None of the shots hit the driver, but one hit thevehicle’s passenger, Vaughan, paralyzing him fromthe chest down. Vaughan sued under 42 U.S.C.§ 1983. The officer claimed that he had not seized

15

Vaughan because he intended to hit the driver, notVaughan.

The Vaughan court determined that, though notthe intended target, police seized Vaughan because’~aughan was hit by a bullet that was meant to stop

him." Further:

The fact that Vaughan was not taken intocustody immediately following the shootingis immaterial. As the Supreme Court hasnoted, the "application of physical force torestrain movement, even when it is ulti-mately unsuccessful" is sufficient to consti-tute a seizure.

Vaughan, 343 F.3d at 1329, n. 5, quoting Hodari, 499U.S. at 626, 111 S.Ct. at 1550, see also Mercado v.City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005)(suspect seized when police shot him in the head witha rubber projectile).

Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993), likeBrower, is a high speed chase case that ended in afatality. After pursuing an 18-wheel truck for overfifty miles, police shot and killed the truck’s driver.As in Brower, the court ruled that law enforcement’svarious and unsuccessful "shows of authority" duringthe chase - rolling roadblocks, stationary roadblocks,

and shooting at the truck’s tires and radiator - werenot seizures because they did not cause the truck’sdriver to stop. The driver "was not seized until he wasstruck by the shot from [the trooper’s] revolver." Cole,993 F.2d at 1332. Like Carr and Vaughan, the Cole

16

court determined the seizure had occurred the mo-ment the target "was struck."

The 8th Circuit again addressed a physical forceseizure in Ludwig v. Anderson, 54 F.3d 465 (8th Cir.1995). Police shot and killed a mentally unstablehomeless Viet Nam veteran after he fended them offwith a knife and fled. Before shooting him, policeattempted to knock him over by hitting him with apolice car at 15 miles per hour. Ludwig continued toflee before he was shot dead.

Noting that "many different seizures may occurduring a single series of events," the Ludwig courtheld that "Ludwig was twice seized in a potentially

unreasonable manner: first when [the officer] at-tempted to hit Ludwig with the squad car," despitethe fact that the effort to thereby arrest him failed,"and second when Ludwig was ultimately shot."Ludwig, 54 F.3d at 471. See also Moore v. Indehar,514 F.3d 756 (8th Cir. 2008) (shot suspect seizeddespite his subsequent escape).

In Ciminillo v. Streicher, 434 F.3d 461 (6th Cir.2006), police shot a person in the face and chest with"bean bag" rounds while he was attempting to peace-ably leave the scene of a street riot with his handsheld in the air. After shooting Ciminillo, police or-dered him to the ground, but then told him to reportto police at the perimeter containing the riot.Ciminillo did so but was told by the perimeter policeto leave. The Ciminillo court ruled that he had beenseized when police shot him and the fact "[t]hat

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Ciminillo was not eventually placed in handcuffs ortaken to the police station does not preclude a deter-mination that he was seized." Ciminillo, 434 F.3d461. Also, in Sargent v. City of Toledo, 150 Fed.Appx.

470, 474-75 (6th Cir. 2005), the 6th Circuit held thata suspect "was seized when [the officer] shot him inthe bedroom." And in Fisher v. Memphis, 234 F.3d 312(6th Cir. 2001), the court held that the passenger of amoving vehicle had been seized when hit by a bulletpolice fired in an attempt to stop the vehicle. TheFisher court found that the combination of "shootingat the car" and "intend[ing] to stop the car" effected aseizure, without any consideration given to whetherthe car was thereby or thereafter stopped. Fisher, 234F.3d at 318-19.

Though not shooting cases, cases from the 3rdand 7th Circuits are consistent with the llth, 8th,and 6th Circuits’ interpretations of Hodari that aseizure occurs upon the application of physical force.In United States v. Brown, 448 F.3d 239 (3rd Cir.2006), officers detained two black men without rea-sonable suspicion based on an overly-general descrip-tion of purse snatching suspects heard over theirradios. In the ensuing Terry-type stop, police discov-ered a gun on Brown, who then attempted to flee.When trying to determine "when the seizure of Brownoccurred" for suppression purposes, the Brown courtinterpreted Hodari to mean that "when a seizure iseffected by even ’the slightest application of physicalforce,’ it is immaterial whether the suspect yields to

that force." Brown, 448 F.3d 239, 245 (3rd Cir. 2006).

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Also, in United States v. Dupree, 2010 WL 3063290(3rd Cir.), where the court suppressed a gun droppedby a passing bicyclist whom the police had grabbedwithout reasonable suspicion to believe he was the

suspect they were looking for, the court determinedthat the "act of grabbing Dupree, no matter how shortin duration, effected a seizure within the meaning ofthe Fourth Amendment" even though "Dupree almostimmediately broke free [and] gave chase." Dupree,2010 WL 3063290 at "12.

The 7th Circuit Court of Appeals issued a line ofcases in which it excepts minor, non-restrainingphysical contact from effecting a seizure. Acevedo v.Canterbury, 457 F.3d 721, 725 (7th Cir. 2006), observedthat "[c]ertain types of non-restraining physical con-tact, without a concomitant showing of authority, arejust too minor to constitute a ’seizure’ for FourthAmendment purposes." The 7th Circuit’s exception forminor, non-restraining physical contact inherentlyrecognizes that all other forms of physical contactapplied with the intent to restrain (such as shooting asuspect in the back) do effect a seizure. See also Leafv. Shelnutt, 400 F.3d 1070, 1091 (7th Cir. 2005)(nudging sleeping suspect to wake him not a seizure);Martinez v. Nygaard, 831 F.2d 822, 826-27 (9th Cir.1987) (grabbing individual’s shoulder from behind toget his attention not a seizure); Carlson v. Bukovic,2010 WL 3432218 (7th Cir.) (taking person by arm toencourage them to leave a store not a seizure).

The prevailing principle that emerges from the11th, 8th, and 6th Circuit’s shooting cases, which is

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shared implicitly by the 3rd and 7th Circuits’ physical

force cases, is that a seizure occurs the moment asuspect is "hit by a bullet meant to stop him," withoutconsideration of whether the suspect is arrested or isthereby physically or temporally restrained. Unlikethe 10th Circuit, other Circuit Courts of Appeals,consistent with Hodari, either deem the "unmatched’’2

bodily intrusion of being shot an inherent restrainton freedom of movement worthy of Fourth Amend-ment protection, or deem actual restraint simply"immaterial" to the seizure analysis.

C. How Did The 10th Circuit Court Of AppealsDecide The Brooks Case?

The 10th Circuit botched the seizure question bypredicating its analysis on whether the effort toarrest was successful. The 10th Circuit erroneouslyreasoned that any unsuccessful effort to arrest was amere "show of authority," an ineffectual "police pur-suit," even if deadly, physical force was applied to thesuspect’s person. Brooks, 2010 WL 3122800 at *7,Appendix at 17-18. Consequently, the Brooks courtapplied the stricter "termination of movement orsubmission" standard governing "show of authority"seizures. Brooks, 2010 WL 3122800 at *7, *8; Appen-

dix at 17, 21; Hodari, 499 U.S. 626, 111 S.Ct. at 1550.Since Brooks "continued to flee without the deputies’acquisition of physical control," the 10th Circuit

Garner, 471 U.S. at 9, 105 S.Ct. at 1700.

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believed he could not satisfy the "show of authority"submission standard. Brooks, 2010 WL 3122800 at*8, *9; Appendix at 21, 22. Thus, the 10th Circuitfound that shooting Brooks had been merely an"attempted seizure." Brooks, 2010 WL 3122800 at *7,*8, *9; Appendix at 17, 18, 21, 22; BROOKS SEI-ZURE ANALYSIS FLOW CHART, Appendix at 54.Citing County of Sacramento v. Lewis, 523 U.S. 833,118 S.Ct. 1708 (1998), for the general proposition that"’attempted seizures’ are beyond the Fourth Amend-ment’s scope," the 10th Circuit concluded that Brookshad not been seized.

Contrary to the approach taken in the Brooksdecision, Hodari predicates the seizure analysis onthe presence or absence of physical force. Where even"the slightest application of" physical force is present,Hodari requires only that this force be applied withthe intent to restrain to effect a seizure. But "where[physical force] is absent," Hodari requires that this"show of authority" produce the suspect’s "submis-sion" to effect a seizure. Hodari, 499 U.S. at 626, 111S.Ct. at 1551. The 10th Circuit sidestepped this

distinction by dismissing Hodari’s binary seizurestandard as "common law dicta." Brooks, 2010 WL3122800 at *7; Appendix at 16, 17.’~ HODARI SEI-ZURE ANALYSIS FLOW CHART, Appendix at 54.

3 Ordinarily, the 10th Circuit "considers itself bound bySupreme Court dicta almost as firmly as by the Court’s outright

(Continued on following page)

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Instead of following Hodari, the Brooks courtsought support for its application of the "show ofauthority" seizure standard to Brooks’ shootingfrom three of its own "show of authority" cases:(1) Reeves v. Churchich, 484 F.3d 1244 (10th Cir.2007), in which officers were deemed merely to haveshown their authority to civilians at the scene of anarrest when they pointed, but did not fire, theirweapons at the civilians; (2) Latta v. Keryte, 118 F.3d693 (10th Cir. 1997), in which a police vehicularpursuit that escalated to shooting out the suspect’scar’s tires, but not the suspect himself, was ruled ashow of authority; and (3) Bella v. Chamberlain, 24F.3d 1251 (10th Cir. 1994), in which "show of author-ity" shots fired at a fleeing helicopter were deemednot to have seized a hostage within because none ofthe shots struck the hostage. Since none of the citedcases involved applications of physical force to asuspect’s person, they do not support the 10th Cir-cuit’s proposition that an unsuccessful effort to arrestby application of physical force is merely a "show ofauthority."

Next, the 10th Circuit claimed to find support inthree other circuits for "requiring intentional termi-nation of movement or acquisition of physical con-trol’’4 over Brooks as a precondition for a physical

holdings." Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.1996). Even assuming the Hodari standard is dicta, the Brooksdecision does not explain why it was so quick to ignore it in thiscase.

4 Brooks, 2010 WL 3122800 at *9; Appendix at 23.

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force seizure: Cameron v. City of Pontiac, 813 F.2d782 (6th Cir. 1987); United States v. Hernandez, 27F.3d 1403 (9th Cir. 1994); United States v. Bradley,196 F.3d 762 (7th Cir. 1999). A closer examination ofthese three cases reveals that they are neither appo-site nor supportive:

Cameron: A burglary suspect fled a homepursued on foot by police who shot at but didnot hit, or otherwise make physical contactwith him. The suspect climbed a fence andwas hit by a car when he landed on the otherside. The court ruled that a seizure did notoccur because the suspect was killed by a car,not by any force applied by police. Cameronis inapposite because, like Lewis, it simplyruled that a seizure can only occur throughmeans intentionally applied.

Hernandez: Police asked a suspicious pe-destrian to stop. The officer grabbed hold ofthe suspect but, in the ensuing physical scuf-fie between them, he escaped the officer’sgrasp. As he fled, he discarded a gun but waslater apprehended. The court denied thesuppression motion because the suspect hadnot been seized at the time he discardedthe gun. Hernandez is inapposite becauseHernandez did not rely on the physical alter-cation as the basis for his seizure argument.Instead Hernandez argued that a seizure oc-curred "despite his subsequent flight becausehe hesitated for a moment and made directeye contact with [the officer]." Hernandez, 27F.3d at 1407. Thus a seizure by application of

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physical force was not before the Hernandezcourt.

Bradley: A police officer shot at a vehicleattempting to stop it. The bullet traveledthrough the trunk and rear seat, and lodgedin the steel plate support of the driver’s seat,delivering a hard blow to the driver’s back.The driver then pulled over but was releasedat the scene. The court held that the driverhad been seized because he had pulled over.Bradley is inapposite because the specificquestion relevant to this case - whether theblow to the driver’s back from the bullet’simpact on the steel seat support was alonesufficient for a seizure - was never raised orruled on.

In short, the 10th Circuit cited no legally or factuallyapposite authority for its assertion that termination

of movement or acquisition of physical control areconditions precedent to a physical force seizure.Nor do Cameron, Hernandez, or Bradley, hold thatshooting a suspect should be analyzed as a "show ofauthority."

Finally, though the district court found thatGaenzle’s shot had restrained Brooks in the form of

"slowed movement," the 10th Circuit refused to ruleon Brooks’ claim that this restraint was sufficient toconstitute a seizure (assuming, contrary to Hodari,that actual restraint is a necessary element of aphysical force seizure). Brooks, 2009 WL 3158138at *6, Appendix at 52. The district court’s "slowed

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movement" finding was factually supportedGaenzle’s deposition testimony [KCB0257]:

Q: All right. Did the suspect [Brooks] ap-pear wounded to you?

A: There - at the - as soon as I got sight ofthe suspect, the person was holding his leftside and hobbling.

by

Q: Hip? Okay, so his left hand was on hisleft hip, and he was limping?

Shooting Brooks with the intent to restrain him isalone enough to satisfy Hodari’s seizure standard asapplied by other circuit courts. But, even if some formof actual restraint were required before shootingBrooks would effect a seizure, Brooks’ "slowed move-ment," or his "hobbling" and "limping" from theshooting, should have been sufficient to meet thisadded requirement. Terry, 392 U.S. at 19, n. 16, 88S.Ct. at 1879 (suspect need not be arrested to effectseizure, merely restrained "in some way").

D. A Writ Of Certiorari Should Issue Because:

1. Standards Applicable To Seizure By TheUse Of Deadly Force Are ImportantMatters Of Constitutional Law

Disputes regarding excessive force and the admis-sibility of evidence resulting from physical seizures of

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suspects "occur with considerable frequency, whichmeans that the fundamental question of what it takesto constitute a ’seizure’ within the meaning of theFourth Amendment is a question of real importance."4 Wayne R. LaFave, Search and Seizure: A Treatiseon the Fourth Amendment § 9.4(a), p. 427 (4th Ed.2010). This case has significant constitutional impli-

cations for both the civil (42 U.S.C. § 1983) andcriminal law (suppression of evidence). Furthermore,the 10th Circuit’s decision erroneously exempts from

constitutional purview deadly force cases in whichsuspects escape. Delineating the proper proscriptionson, and the protections afforded to those who suffer,the application of deadly force by law enforcement isamong the most important constitutional functionsthis Court performs.

2. The 10th Circuit’s Brooks DecisionConflicts With This Court’s SeizurePrecedent

The Brooks decision rests on two wayward prem-ises: (1) that Hodari’s seizure standard is dismissibledicta, and (2) that an unsuccessful effort to arrest byshooting a fleeing suspect in the back is nothing morethan a "show of authority." The 10th Circuit’s premis-es conflict with Hodari and other applicable prece-

dent from this Court.

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a. The lOth Circuit’s Brooks DecisionConflicts With Hodari By Character-izing Its Seizure Standard As Dicta

Hodari’s seizure standard is not dicta. Dicta arediscussions of "abstract and hypothetical situations

not before the court." Connecticut v. Doehr, 501 U.S.1, 30 (1991). Before the Hodari court was a claim thatevidence discarded during a police pursuit should besuppressed, which hinged on whether the suspect wasseized at the time the police gave chase, or not untilhe was physically tackled. In Hodari, this Courtstated that "[t]he narrow question before [it was]whether, with respect to a show of authority as withrespect to application of physical force, a seizureoccurs even though the subject does not yield."Hodari, 499 U.S. at 626. This question necessitatedthe resolution of the question: What police conducteffects a seizure? The Court answered the question byruling that a seizure occurs either by the applicationof physical force with the intent to restrain or "whenthat is absent" by a successful show of authority.

Hodari, 499 U.S. at 626.

This resulting standard is set forth not duringthe Hodari court’s discussion of the Fourth Amend-ment’s common law underpinnings, but in succeedingparagraphs where the Court applies the standardto the facts of the case. Hodari, 499 U.S. at 625, 626,111 S.Ct. at 1550, 1551. Hodari’s binary physicalforce/show of authority seizure standard is, thus, notan "abstract or hypothetical" proposition because itwas central to resolving the question before the Court

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of whether Hodari had been seized, and, if so,whether seizure occurred when pursuit commenced ornot until police made physical contact. CharacterizingHodari’s seizure standard as dicta places the 10thCircuit’s Brooks decision in diametric conflict withthis Court’s controlling seizure precedent.

b. The 10th Circuit’s Brooks DecisionConflicts With This Court’s SeizurePrecedent By Analyzing The Shoot-ing Of A Suspect As A "Show OfAuthority"

Hodari expressly held that a "show of authority"occurs "where [physical force] is absent." Hodari, 499U.S. at 626, 111 S.Ct. at 1551. Where, as here, physi-cal force is present, shooting a suspect in the back isnot analyzed as a "show of authority." Of Hodari’s twoidentified modes of seizure - (1) the application ofphysical force with the intent to restrain, and (2) ashow of authority - the former effects a seizure "bythe slightest application of physical force, despite thearrestee’s escape," while only the latter requires"submission to the assertion of authority." Hodari,

499 U.S. at 625, 626, 111 S.Ct. at 1550, 1551. Nomore is required to satisfy Hodari’s physical forceseizure standard than the fact that Brooks was hit bya bullet meant to stop him. Compare HODARI SEI-

ZURE ANALYSIS FLOW CHART with BROOKSSEIZURE ANALYSIS FLOW CHART, Appendix at54.

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Since a physical force seizure does not require"submission," the 10th Circuit was incorrect in stat-ing that "Supreme Court precedent ... instructs[that] physical touch (or force) must terminate thesuspect’s movement" or result in the "acquisition ofphysical control" before the force applied will bedeemed a seizure. Brooks, 2010 WL 3122800 at *9;Appendix at 21-22. But since this is the standard the

Brooks court applied in this case, it erroneouslyconcluded that Brooks had not been seized byGaenzle’s gunshot.

c. The 10th Circuit’s Brooks DecisionConflicts With This Court’s SeizureStandards By Requiring "PhysicalControl" Or Other Conditions Syn-onymous With Arrest As A ConditionPrecedent To A Physical ForceSeizure

The 10th Circuit’s Brooks decision fell into thetrap anticipated by Brower’s concurring Justices, whofeared that courts would reflexively, and erroneously,read the decision’s "physical control" dicta to meanthat "physical control" would become "an essentialelement of every seizure" in every case. Brower, 489

U.S. at 600, 109 S.Ct. at 1383. By holding that the"slightest" application of physical force effects aseizure even if police are "ultimately unsuccessful" atacquiring physical control, Hodari rejected outrightany inference in Brower that the acquisition of physi-cal control is a condition precedent to effecting a

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physical force seizure. Hodari, 499 U.S. at 625, 626.Since Brower post-dates Hodari, the 10th Circuiterred when it "reconciled" Brower with Hodari byaffording Brower’s physical control dicta primacy overHodari’s explicit seizure standard. Brooks, 2010 WL3122800 at *7; Appendix at 18; Williams v. Taylor, 529U.S. 362, 407, 120 S.Ct. 1495, 1520 (2000) (it is an"unreasonable application of this Court’s precedent"

to "unreasonably extend a legal principle from ourprecedent [Brower] to a new context where it shouldnot apply").

d. The 10th Circuit’s Brooks DecisionConflicts With This Court’s SeizurePrecedent By Analyzing The Shoot-ing Of A Suspect As An "AttemptedSeizure"

Although the Brooks decision is correct in gener-ally observing that attempted seizures are beyond thescope of the Fourth Amendment, it improperly char-acterizes shooting at and striking a suspect whoescapes as an "attempted seizure." Attempted sei-zures, as identified and defined by this and othercourts, are events "where [physical force] is absent."Hodari, 400 U.S. at 626; 111 S.Ct. at 1551. Non-physical assertions of police authority include verbalcommands to "Stop!" (Hodari), flashing lights on a

police vehicle pursuing or attempting to pull over avehicle (Brower, Lewis), pointing a gun at a suspectwithout shooting him (Reeves), or shooting at but nothitting a suspect (Cameron, Keryte). Since physical

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force was present in this case, shooting Brooks wasno "attempted seizure." Hodari, 400 U.S. at 626, 111S.Ct. at 1551.

Despite its reliance on Lewis for the generalproposition that attempted seizures are beyond theFourth Amendment’s scope, the 10th Circuit does notexplain how Lewis supports the specific propositionthat shooting a suspect in the back is an "attemptedseizure." Brooks, 2010 WL 3122800 at *7; Appendix at17. Lewis simply held that a suspect who is killed bymeans not intentionally applied by police was notphysically seized by authorities. Lewis, 523 U.S. at

844, 118 S.Ct. at 1715. Lewis did not hold that asuspect who is injured by means intentionally appliedby police is not seized because the effort to therebyarrest was unsuccessful. Lewis does not support the10th Circuit’s view that shooting Brooks in the backwas merely an "attempted seizure."

3. The 10th Circuit’s Determination Ex-PurviewSuspects

empts From ConstitutionalPolice Shootings In Which"Escape" Or Are Not Arrested

The 10th Circuit’s Brooks decision has carvedout a heretofore non-existent exception to policeshootings: so long as the suspect escapes, whether bythe success of his own exertions or the apathy ofpolice who do not give chase, no police shooting ofthe suspect will be subject to Fourth Amendmentscrutiny. This Court’s precedent does not suggestthat escape exonerates police from constitutional

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wrongdoing committed in the act of unsuccessfullyfoiling the escape. To the contrary, Brower expresslyheld that the suspect’s decision to flee will not justifythe use of unconstitutional means to prevent hisescape. Brower, 489 U.S. at 595, 109 S.Ct. at 1380-81.

Hinging the constitutionality of a physical forceseizure on the success of the effort to thereby arrestcreates a conspicuous constitutional loophole thatthreatens both civil constitutional enforcement reme-dies and the efficacy of the exclusionary rule. Policecan choose to not arrest persons upon whom theyhave visited excessive force, or can allow suspectswho have dropped incriminating evidence incident toan illegal bodily seizure to "escape," and therebyevade the consequences of unconstitutional behavior.Excluding physical force seizures from constitutionalpurview simply because an implicated police officerelects not to pursue or arrest a suspect is a loopholethat is not condoned anywhere in this Court’s seizurejurisprudence.

4. The Conflict Between The 10th Circuit’sSeizure Standard And The 11th, 8th,7th, 6th, And 3rd Circuits’ SeizureStandards Impairs The Uniform Appli-cation Of Fourth Amendment PrinciplesAcross The Country

The 10th Circuit’s Brooks decision is an aberra-tion from how the federal appellate courts interpretand apply Hodario Unlike the 11th, 8th, 7th, 6th, and3rd Circuits, the 10th Circuit does not recognize that

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Hodari enunciated a controlling seizure standard.Ignoring Hodari brings the 10th Circuit’s Brooksdecision in conflict with fellow circuit courts by im-posing conditions precedent on seizures not found inother circuit court opinions, namely requiring thatlaw enforcement’s efforts to arrest be successful.

a. Circuit Courts Recognize That HodariEnunciated A Definitive Seizure Stan-dard But The 10th Circuit TreatsHodari’s Standard As Dicta

The 3rd Circuit in Brown readily recognizes thedefinitive character of Hodari’s seizure standard,paraphrasing it as follows:

A seizure occurs when there is either (a) "alaying on of hands or application of physicalforce to restrain movement, even when it isultimately unsuccessful," or (b) submission to"a show of authority." Put another way, whena seizure is effected by even "the slightestapplication of physical force," it is immate-rial whether the suspect yields to that force.

Brown, 448 F.3d at 245, quoting Hodari, 499 U.S. at

625, 626, 111 S.Ct. at 1550. And in Schulz v. Long, 44F.3d 643, 647 (8th Cir. 1995), the court said "HodariD. defines what constitutes a seizure for FourthAmendment purposes," (emphasis added). Sargent,150 Fed.Appx. at 474 ("Hodari D. requires that policeeither physically touched Sargent to restrain himor ... engaged in a show of authority that ’in someway restrained [Sargent’s] liberty’"). But what is

33

definitive for the 8th, 6th, and 3rd Circuits is mere"common law dicta" to the 10th. Treating Hodari asdismissible dicta places the 10th Circuit at odds withother circuits.

b. Circuit Courts That Recognize Ho-dari’s Seizure Standard Do NotCondition A Physical Force SeizureOn The Success Of The Effort ToArrest

Like the 3rd Circuit in Brown, the 11th Circuitreads Hodari to mean that it is "immaterial" to theseizure determination whether a suspect is arrestedsubsequent to the application of physical force.Vaughan, 343 F.3d at 1329, n. 5, quoting Hodari, 499U.S. at 626, 111 S.Ct. at 1550. It is sufficient for aseizure in the 11th Circuit (as well as the 8th and6th) if the suspect is "hit by a bullet meant to stophim." Vaughan, 343 F.3d at 1323; Fisher, 234 F.3dat 318-19. By contrast, in the 10th Circuit, whichnow classifies shooting a suspect who subsequentlyescapes as a "show of authority," a seizure requiresthat a suspect be stopped by a bullet meant to hit him.

Unlike the 10th Circuit, circuits that properlyapply Hodari as a disjunctive standard do not look toevents after the application of physical force to de-termine if the force applied effected a seizure. In the

11th, 8th, and 6th Circuits, a seizure occurs themoment a bullet impacts its intended target. Carr,

338 F.3d at 1268 ("The seizure occurred when Carr

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was struck by the bullet from Officer Fortson’s gun");Cole, 993 F.2d at 1332 (driver "was not seized until hewas struck by the shot"); Ludwig, 54 F.3d at 471(arrestee seized "when [the officer] attempted to hitLudwig with the squad car" and "when [he] wasultimately shot"); Sargent, 150 Fed.Appx. at 474-75(suspect "was seized when [the officer] shot him");Fisher, 234 F.3d at 318-19. Except for the Hodari-

denying 10th Circuit, the fact of being shot, not thefact of being stopped, is determinative of a physicalforce seizure in the circuit courts of appeals.

Thus, circuit courts correctly view Hodari’s re-straint element simply as a matter of the officer’sintent, and not as a condition that the target mustactually experience, in order to seize a suspect byshooting him. Ciminillo, 434 F.3d at 466 (beanbagshot that struck plaintiff was a seizure because officer"intended to stop Ciminillo from coming any closer");Fisher, 234 F.3d at 318-19 (passenger seized whenshot because officer "intended to stop the car");Vaughan, 343 F.3d at 1323 (suspect seized when "hitby a bullet meant to stop him"); Sargent, 150Fed.Appx. at 474 ("Hodari D. requires that police ...physically touched Sargent to restrain him"); Carr,

338 F.3d at 1268 ("it is [the officer’s] intent and thephysical contact of the bullet that governs our ...seizure analysis"). Requiring that officers succeed ineffecting the restraint intended by the application ofphysical force is a condition precedent on a physicalforce seizure not imposed by the circuit courts thatrecognize and apply Hodari’s seizure standard.

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c. The 10th Circuit’s Refusal To Recog-nize Hodari’s Seizure Standard Frus-trates The Uniform Application OfThe Law

It is not surprising that the 10th Circuit’s Brooksdecision cites no authority from other circuits sup-portive of its holding because no other federal circuitcourts have held that Hodari’s seizure standard isdismissible dicta. Consequently, no other federal cir-cuit courts have held that shooting a suspect in theback is a "show of authority." These conflicts instandards and policy between the 10th and othercircuits will result in the disparate application andenforcement of the law across the country. Removingphysical force targets from constitutional purview, ifthey succeed in fleeing, exempts police in the 10thCircuit from civil liability they would face in othercircuits, and makes evidence admissible in the 10thCircuit that would be suppressed in other circuits.

One need only look at Bradley to see that policeofficers occasionally fire unwarranted shots at inno-cent citizens. Confused citizens under fire mightproperly judge flight as the best course of action topreserve their safety or lives, but they will have noexcessive force remedy in the 10th Circuit if they

successfully flee. One need only look at Dupree to seethat police officers sometimes randomly, and withoutproper cause, seize citizens, who might flee anddiscard evidence out of fear of an unjustified police

encounter. In the 10th Circuit the fruits of suchunlawful seizures will be admissible if a citizen

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succeeds in fleeing, only to be arrested later forevidence the police had no original probable cause tobelieve he or she possessed. Such disparate outcomesfrom one circuit to another cannot be tolerated con-sistent with constitutional aspirations for equalprotection of the law.

5. Hodari’s Bright Line Physical ForceSeizure Standard Provides A ReadilyApplicable Rule That Protects Society’sInterest In Discouraging Unnecessary,Non-Consensual Touching Without Im-pairing Law Enforcement Functions

Hodari’s physical force seizure standard isprecise and simple: any application of physical forceintended to restrain is a seizure, even if the subjectescapes. Officers in the field can readily apply thisstandard, readily knowing that once they "layhands" on, or shoot, a suspect with the intent torestrain, they have effected a seizure, and readilyknowing that if they lack probable cause or reasona-ble suspicion, evidence discovered incident to that

seizure will be excluded. Hodari, 499 U.S. at 626;Dupree, 2010 WL 3063290 at "12. Given society’sinterest in deterring batteries upon citizens incidentto police efforts to investigate or arrest, movement-based standards - those focused on "control" or"termination" of movement - unnecessarily compli-cate physical force seizure determinations with "allsorts of ifs, ands, and buts requiring the drawing ofsubtle nuances and hairline distinctions." LaFave,"Case-By-Case Adjudication" Versus "Standardized

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Procedures:" The Robinson Dilemma, 1974. Thepublic’s interest in deterring bodily intrusion bygovernment agents demands a clear, readily applica-hie standard that movement-based standards do notprovide.

Movement-based standards are ill-suited to phys-ical force seizures for three reasons: (1) they placegreater constitutional importance on interruption ofmovement than on the bodily intrusion of police ap-plications of deadly force; (2) they inherently containarbitrary distinctions and insoluable conflicts notreadily applicable by police or courts, i.e. conflictsover whether the suspect "stopped" as a result of theapplication of physical force and, if so, whether theduration of the "stop" was "significant;" and (3) theygame law enforcement’s usage of physical force intocalculations of how much force can be applied without"stopping" a suspect "too much." The 10th Circuit’srecent unpublished decision in Lemery v. Beckner, 323Fed.Appx. 644 (10th Cir. 2008), demonstrates thedilemma inherent in hinging physical force seizuredeterminations on interrupted movement.

In Lemery a college student seeking law enforce-ment’s assistance during a street riot was shot in theeye by a pepper gun. The 10th Circuit ruled policehad seized Lemery, not because police shot and in-jured his eye, but because the shot caused a "momen-tary termination" of Lemery’s movement. Lernery, 323Fed.Appx. at 649; Brooks, 2010 WL 3122800 at *10;Appendix at 25-26. Lemery illustrates the 10th Cir-cuit’s peculiar tendency to constitutionally prioritize

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interrupted movement over physical intrusion inphysical force seizure situations. Hodari’s physicalforce seizure standard does not require any actualrestraint, only that force be applied with the intent torestrain. Hodari does not require even "momentarytermination" of movement for a seizure if a person isshot by the police. Brooks and Lemery expose theneed for this Court to reaffirm Hodari’s bright linephysical force seizure rule.

6. The 10th Circuit’s Brooks Decision IsLegally And Factually An AppropriateCase To Firmly Establish The PrincipleThat Shooting A Fleeing Suspect Is ASeizure By Application Of PhysicalForce And Not Merely A "Show OfAuthority" Or "Attempted Seizure"

The Brooks case is well-suited to serve as thevehicle for resolving the explicit conflict that existsbetween the 10th Circuit and the 11th, 8th, and 6thCircuits, and implicit conflict between the 10thCircuit and the 7th and 3rd Circuits, because itstarkly presents the question of whether shooting andhitting a fleeing suspect is merely a "show of author-ity" if the effort to arrest is not successful. The factsmaterial to the seizure question are not disputed:Gaenzle shot Brooks in the back as he climbed thefence to prevent his escape, Gaenzle and Smithdid not pursue Brooks, and Brooks escaped. Didthe failure to pursue or arrest Brooks render theshooting a mere "show of authority," or was shooting

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Brooks a seizure by application of physical forcedespite Brooks’ escape? This Court should grantcertiorari in this case to resolve the important ques-tion now dividing the circuits of whether the fact that

a shot suspect who is not thereafter promptly arrest-ed places the shooting outside constitutional physicalforce seizure protections.

CONCLUSION

The concurring Justices in Brower feared that

the decision might be read to require "physical con-trol" in all cases to effect a seizure. That fear hasmaterialized in the 10th Circuit’s Brooks decision.Hodari should have put to rest any notion that "stop-ping" or acquiring "physical control" over a suspect isa condition precedent to a physical force seizure, butthe 10th Circuit dismisses Hodari’s seizure standardas mere dicta. In order to correct the resulting conflict

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in the circuits, and the constitutional mischief thatwill surely come to pass in the 10th Circuit if the

Brooks decision is allowed to stand, Petitioner KeithC. Brooks requests that a writ of certiorari be issuedin this case.

Respectfully submitted.

PAUL S. SWEDLUND

Counsel of RecordMARC D. FLINK

JUSTIN T. WINQUIST

BAKER HOSTETLER, LLP

303 East 17th Avenue, Suite 1100Denver, Colorado 80203-1264Telephone: 303-861-0600Facsimile: 303-861-7805pswedlund@bakerlaw.com

Counsel for PetitionerKeith C. Brooks