Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 1 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No. 17-1907 NIKITA T. SMITH, et al, On Appeal from the U.S. District Court for the Eastern District of Michigan Plaintiffs-Appellants, Case No. 16-11882 Hon. George Caram Steeh v. CITY OF DETROIT, et al, Defendants-Appellees. _______________________________________/ DEFENDANTS-APPELLEES MORRISON AND GAINES’ PETITION FOR REHEARING EN BANC CERTIFICATE OF SERVICE Lawrence T. Garcia (P-54890) Corporation Counsel BY: Sheri L. Whyte (P-41858) Senior Assistant Corporation Counsel City of Detroit Law Department 2 Woodward Ave., Ste. 500 Detroit, Michigan 48226 (313) 237-3076 whyts@detroitmi.gov 1 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 2 NOW COME Defendants-Appellees William Morrison and Bashawn Gaines, by and through their undersigned attorney and, pursuant to Fed. R. App. P. 35 and applicable rules of the Sixth Circuit, bring their Petition for Rehearing En Banc, as follows: Statement Pursuant to Federal Rule of Appellate Procedure 35(b)(1)(B) The proceeding involves one or more questions of exceptional importance. Qualified immunity is exceptionally important “to society as a whole.” Harlow v. Fitzgerald, 457 U.S. 800, 814; 102 S. Ct. 2727; 73 L.Ed.2d 396 (1982). The privilege of qualified immunity is meant to spare the defendants the “costs and expenses of trial” and should be correctly afforded “early in the proceedings.” Saucier v. Callahan, 533 U.S. 194, 200; 121 S. Ct. 2151; 150 L.Ed.2d 272 (2001). The question of qualified immunity is of such importance that the Supreme Court “often corrects lower courts when they wrongly subject individual officers to liability.” City & County of San Francisco v. Sheehan, __ U.S. __, 135 S. Ct. 1765, 1774 n. 3, 191 L.Ed.2d 856 (2015). Several instances of summary or unanimous reversals by the Supreme Court on the grounds of qualified immunity were recently documented by current Justice Brett M. Kavanaugh. Wesby v. District of Columbia, 816 F.3d 96, 102; 421 U.S. App. D.C. 391 (D.C. Cir. 2016) (dissenting from denial of rehearing en banc). 2 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 3 Due to the high level of societal importance, the Supreme Court continues to unanimously reverse lower court decisions denying immunity. See District of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577; 199 L.Ed.2d 453 (2018). The previously cited cases underscore the extreme significance of a decision regarding qualified immunity, especially one with such far reaching consequences as the present case. See Nikita T. Smith v. City of Detroit, Michigan, Case No. 17-1907 at 11, 19 (Batchelder, J., dissenting) (stating that “… the majority’s constitutional analysis misinterprets the Supreme Court’s Fourth Amendment cases and threatens to extend sweeping monetary liability to officers who seize contraband during searches and to the municipalities that employ them” and noting the panel majority’s “reasoning would authorize lawsuits seeking damages for the seizure of, among other things, illegal drugs and illegal firearms.”) (Exhibit 1). This present case involves two crucial issues that warrant a rehearing en banc: 1. Whether a plaintiff in a suit brought pursuant to 42 U.S.C. § 1983 has a legal possessory interest in unlicensed dogs; and 2. Whether the legal possessory interest in such dogs was “clearly established” as of November 2015, overcoming Defendants’ qualified immunity. Introduction The panel’s decision makes one crucial misapplication of the law. Without any citations, the Court stated the following: 3 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 4 By guaranteeing process to dog owners before their unlicensed dogs are killed, Michigan law makes clear that the owners retain a possessory interest in their dogs. This is particularly so in the context of everyday property that is not inherently illegal, such as some drugs, but instead is subject to jurisdiction-specific licensing or registration requirements, such as cars or boats or guns. Just as the police cannot destroy every unlicensed car or gun on the spot, they cannot kill every unlicensed dog on the spot. Nikita T. Smith v. City of Detroit, Case No. 17-1907, at pp. 8-9 (emphasis added). First, Defendants have never contended that an officer may kill any unlicensed dog on the spot. As they have stated, the absence of a license means that there is no legitimate possessory interest protected by the Fourth Amendment; it does not in itself authorize the killing of an unlicensed dog. Indeed, the Michigan Dog Law was amended in 2014 to preclude this (M.C.L. 287.277). Further, this reasoning that a possessory interest in property is sufficient to bring a claim for an illegal seizure is a fundamental misstatement of caselaw. The central question for purposes of the Fourth Amendment is not whether plaintiff has “a possessory interest” in the property. The correct inquiry is whether the plaintiff has a possessory interest in the property which is “superior” to the government’s interest. Under both a historic approach and under the most recent Supreme Court precedent, the panel’s reasoning was erroneous. 4 Case: 17-1907 I. Document: 44-1 Filed: 10/29/2018 Page: 5 Historically, the Government could seize any contraband because they have a superior property interest in the property. The Supreme Court in Warden v. Hayden explored the history of Fourth Amendment and government’s right to seize property. 387 U.S. 294, 303-04 (1967). The Court analyzed common law government seizures and summarized that contraband could always be seized: Thus stolen property—the fruits of crime—was always subject to seizure. And the power to search for stolen property was gradually extended to cover ‘any property which the private citizen was not permitted to possess,’ which included instrumentalities of crime (because of the early notion that items used in crime were forfeited to the State) and contraband. No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted. The remedial structure also reflected these dual premises. Trespass, replevin, and the other means of redress for persons aggrieved by searches and seizures, depended upon proof of a superior property interest. And since a lawful seizure presupposed a superior claim, it was inconceivable that a person could recover property lawfully seized. Id. at 303-04 (1967) (emphasis added). The Court was even more definitive in the government’s historic right to seize contraband, holding that “contraband is indeed property in which the Government holds a superior [property] interest, but only because the Government decides to vest such an interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government 5 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 6 seeks to prevent and deter crime.” Warden v. Hayden, 387 U.S. 294, 306 n. 11 (1967). The Sixth Circuit has cited with approval this historic right of the government to seize property. The Court held that the government may seize any property in which it shows “a valid claim of superior interest.” Clarke v. Henderson, 403 F.2d 687, 688 (6th Cir. 1968). Contraband is property which “the mere possession of which is unlawful.” United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297 n. 9 (8th Cir. 1982). Examples in federal law of contraband are heroin, 21 U.S.C. §§ 812, 881(f), moonshine whiskey, 26 U.S.C. §§ 5685 and 7302, and sawed-off shotguns, 26 U.S.C. § 5861(d). Under Michigan law, possession of an unlicensed dog is contraband per se and the possession of such dogs is always unlawful. Since an unlicensed dog is legally defined as property in Michigan which a private citizen is not permitted to possess, the government always has a property interest in the dog which is superior to the “possessor” of the dog. The fact that there is a “process” by which the state elects to use before a dog is killed is not indicative that the possessor of the dog has a superior property right to the dog. It is only indicative of a more humane process the state uses to dispose of its property which is living. II. The most recent Supreme Court precedent on the Fourth Amendment reaffirms the important distinction between lawful and unlawful possession of property. 6 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 7 As the Supreme Court recently indicated in Byrd v. United States, for purposes of the Fourth Amendment and whether a search and seizure was reasonable, the “central inquiry at this point turns on the concept of lawful possession.” 138 S. Ct. 1518, 1529 (2018) (internal quotations and citations omitted). The Court has long held that an individual has no standing to challenge a search or seizure when the person has neither “a property nor a possessory interest” in the property. Rakas v. Illinois, 439 U.S. 128, 148 (1978) (declining to exclude gun and shells found in stolen car where the criminal defendants were passengers). However, having mere possession is insufficient to grant Fourth Amendment protections in property. When the possession or control of the property is illegal, the person has no constitutional right to the property. As the Court explained in Byrd: A burglar plying his trade in a summer cabin during the off season, for example, may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as legitimate. Likewise, a person present in a stolen automobile at the time of the search may not object to the lawfulness of the search of the automobile. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car. Byrd, 138 S. Ct. at 1529 (internal quotations and citations omitted) (emphasis added). 7 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 8 As stated above, an unlicensed dog is contraband. The possession of the dog cannot be a lawful possession. Under both the Hayden test and the Byrd test, it is clear that the government has a property interest in unlicensed dogs which is superior to the plaintiff. As such, the panel’s reasoning was erroneous and applied the incorrect standard for recovering seized property. III. Defendants are entitled to qualified immunity, as pointed out by Judge Batchelder. A. “Property Interest” under State Law As Judge Batchelder outlined in her dissenting opinion, Michigan law demonstrates that Defendants are at least entitled to qualified immunity on the issue of a legitimate property interest in the dogs for Fourth Amendment purposes. She first stated: Now, it is true that the Dog Law of 1919 does not contain as clear a statement that unlicensed or untagged dogs are contraband as exists elsewhere in Michigan state law. See Mich. Comp. Laws § 436.1235 (“A property right does not exist in any alcoholic liquor had, kept, transported, or possessed contrary to law ..., and all such are hereby declared contraband and forfeited to the state and shall be seized.”). But such a clear statement is not necessary. “[M]arijuana is contraband,” see Church, 823 F.3d at 355, and Michigan’s provision prohibiting possessing marijuana is more like the Michigan provisions prohibiting owning or possessing unlicensed or untagged dogs than it is like the Michigan provisions prohibiting possessing illegal liquor, see Mich. Comp. Laws §§ 333.7403 (prohibiting the knowing or intentional possession of controlled substances), 333.7212 (categorizing marijuana as a controlled substance). 8 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 9 Other provisions of the Dog Law of 1919 show that Michigan state law draws a line between licensed dogs and unlicensed dogs. These provisions confirm that licensed dogs in Michigan are property in which a person has a legitimate possessory interest protected by state law, but seem to indicate that unlicensed dogs in Michigan are either not property in which a person has a legitimate possessory interest protected by state law or are property in which a person has some kind of inferior property interest. The owner of a licensed dog may seek monetary damages from a police officer or other person who kills that dog, see id. § 287.287, but there is no indication that owners of unlicensed dogs may seek such damages. Cf. Finley, 189 N.W. at 201 (“A presumption of value attends a licensed dog.”). Persons who are not police officers may not “kill or injure or attempt to kill or injure any dog which bears a license tag for the current year,” except in limited circumstances. See Mich. Comp. Laws § 287.279; cf. Finley, 189 N.W. at 201 (describing dog licenses in Michigan as “entitling [ ] dog[s] to live” and “protect[ing] their lives”). Persons also may not “steal, or confine and secrete any dog licensed under this act,” except in limited circumstances. See Mich. Comp. Laws § 287.286b; see also id. § 287.308. But there are no provisions making it illegal to kill, steal, or confine and secrete unlicensed dogs. And any “dog required to be licensed under this act that is unlicensed is a public nuisance,” and county prosecutors “shall commence proceedings against the owner of the dog as required by the act.” Id. § 287.277. Only one provision of the Dog Law of 1919 might undercut this conclusion, and it is this provision on which the majority relies. This provision authorizes Michigan authorities to kill certain licensed or unlicensed dogs, but only after following a prescribed legal process. See id. § 287.286a. To the majority, this provision makes it “clear” that “owners of unlicensed dogs are entitled to process prior to seizure ..., and therefore retain a property interest in the dogs.” Maj. Op., at –––– . But this provision does not purport to protect all unlicensed dogs; rather, it applies to several categories of dogs, some licensed, some unlicensed, and some whether licensed or unlicensed. See, e.g., Mich. Comp. Laws § 287.286a(1)(e) (“[a] dog duly licensed and wearing a 9 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 10 licensed tag [that] has run at large contrary to this act”); id. § 287.286a(1)(c) (“[a] dog, licensed or unlicensed, [that] has attacked or bitten a person”); see also Finley, 189 N.W. at 201 (“The owner who has complied with the law, paid for and obtained a license entitling his dog to live, is at least entitled to notice and a hearing before the dog is killed.”). Still, even if this provision protects all unlicensed dogs, the Dog Law of 1919 does not authorize persons to seek monetary damages from a police officer who kills an unlicensed dog without following the prescribed legal process. See Mich. Comp. Laws § 287.287. The only remedy the Dog Law of 1919 provides for a police officer’s failure to comply with any of its provisions, other than the illegal killing of a licensed dog, is potential criminal liability for the police officer. See id. §§ 287.286, 287.287. For all of these reasons, I disagree with the majority that it is “clear” under Michigan state law that owners of unlicensed dogs “retain a property interest in the dogs.” Nikita T. Smith v. City of Detroit, Case No. 17-1907, at pp. 14-16 (Batchelder, J., dissenting). B. Contraband Judge Batchelder went on to point out that Although it is not “clear” under Michigan state law that owners of unlicensed dogs “retain a property interest in the dogs,” I concede that it also may not be “clear” under Michigan state law that unlicensed or untagged dogs are contraband in which a person retains no legitimate possessory interest whatsoever. But we need not decide this question. This lack of clarity in Michigan state law means that existing law at the time that the officers killed the Plaintiffs’ dogs did not establish beyond debate that the officers’ conduct impinged on the Plaintiffs’ Fourth Amendment rights. The majority therefore errs by not affording the officers qualified immunity. *** It is not clear that the first prong of qualified immunity is satisfied here, but we need not decide that question in order to afford the officers 10 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 11 qualified immunity, since the second prong certainly is satisfied. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Existing law at the time that the officers killed the Plaintiffs’ unlicensed dogs did not establish beyond debate that a person retains a legitimate possessory interest in his unlicensed or untagged dog where state law makes the ownership or possession of such a dog a criminal offense. The panel majority has not “identified a single precedent—much less a controlling case or robust consensus of cases— finding a Fourth Amendment violation,” see Wesby, 138 S.Ct. at 591, in circumstances where police officers killed unlicensed or untagged dogs in a state where owning or possessing an unlicensed or untagged dog is a criminal offense. Every reasonable official therefore would not have known that the Fourth Amendment was implicated in circumstances like these, where the Plaintiffs have neither alleged that their dogs were licensed nor alleged any facts from which we may infer that there was any way for the officers to know that the Plaintiffs’ dogs were anything other than unlicensed, such as the presence of collars with license tags. The majority states that the “officers here could not look at the dogs and know whether they were licensed.” Maj. Op., at ––––. But the officers here could look at the dogs and know whether they were wearing collars with license tags, as is specifically required by Michigan state law. See Mich. Comp. Laws § 287.267. And the absence of collars with license tags alone made the Plaintiffs’ dogs illegal to own or possess under Michigan state law. See id. § 287.262 (making it “unlawful for any person to own ... any dog 6 months old or over that does not at all times wear a collar with a tag....”). The only thing that existing law at the time established beyond debate was that the Fourth Amendment protected licensed dogs from unreasonable seizures, see Brown, 844 F.3d at 566 (finding that this was clearly established in 2013), but the clearly-established standard requires a “high degree of specificity,” Wesby, 138 S.Ct. at 590, and this specificity is “especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult 11 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 12 for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts,” Kisela v. Hughes, ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (per curiam) (citation omitted). Brown is therefore not sufficient to have established beyond debate that the killing of an unlicensed or untagged dog implicated the Fourth Amendment’s prohibitions. Because existing law at the time that the officers killed the Plaintiffs’ dogs did not establish beyond debate that the officers’ conduct infringed on the Plaintiffs’ Fourth Amendment rights, the majority errs by not affording qualified immunity to the officers. Nikita T. Smith v. City of Detroit, Case No. 17-1907, at pp. 17-18 (Batchelder, J., dissenting). Therefore, Defendants Morrison and Gaines are entitled to qualified immunity. They ask the Court to grant en banc rehearing and affirm the district court’s ruling in its entirety. IV. The Supreme Court cases cited by the majority are inapposite and do not support a Fourth Amendment claim for seizure of contraband. The caselaw relied upon by the majority does not support Plaintiffs’ claim. As Judge Batchelder also noted: In each Supreme Court case the majority cites, the alleged constitutional harm was an unreasonable search under the Fourth Amendment and in each case the remedy sought was suppression of the allegedly illegally obtained evidence. See Horton v. California, 496 U.S. 128, 141–42, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (rejecting an “inadvertence” requirement and affirming the denial of a motion to suppress evidence found in plain view during a search pursuant to a valid search warrant); Arizona v. Hicks, 480 U.S. 321, 324–25, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (affirming the suppression of evidence where police officers conducted an additional search unjustified by the exigent circumstances that validated entry into the 12 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 13 home); Payton v. New York, 445 U.S. 573, 577–82, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (reversing the denial of four motions to suppress evidence found in plain view during warrantless entries into homes to make felony arrests); Coolidge v. New Hampshire, 403 U.S. 443, 453– 54, 472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (reversing in a case “not ... involving contraband” the denial of a motion to suppress evidence found during a seizure and search pursuant to an invalid warrant). None of these cases involves plaintiffs seeking monetary damages for the seizure of contraband during a search. For example, in Hicks, the Fourth Amendment’s prohibition of unreasonable searches required the suppression of the contraband found as a result of an illegal search. But nothing in the Fourth Amendment required the police officers to pay James Thomas Hicks the value of the stolen stereos that the officers later seized. See generally Hicks, 480 U.S. at 324–29, 107 S.Ct. 1149. The majority’s failure to cite a single Supreme Court case authorizing similar 42 U.S.C. § 1983 lawsuits seeking to recover monetary damages for contraband seized during a search is telling, but is not surprising. Police officers regularly seize contraband during searches, much of it quite valuable. The majority’s reasoning would authorize lawsuits seeking damages for the seizure of, among other things, illegal drugs and illegal firearms. See generally, e.g., Church, 823 F.3d at 354 (police seized marijuana, pills, and a firearm from a convicted felon); Janik, 723 F.2d at 541 (police seized unlicensed submachine gun and sawed-off shotgun). Nothing in the Supreme Court cases cited by the majority requires, much less supports, such a result, and we should be careful not to mangle the Supreme Court’s Fourth Amendment cases to create such sweeping monetary liability for police officers and the municipalities that employ them. Nikita T. Smith v. City of Detroit, Case No. 17-1907, at pp. 18-19 (Batchelder, J., dissenting). V. “Debo” The majority also misinterprets the facts with respect to “Debo” (the dog shot in the entryway but killed between the living room and dining room). Regardless of whether there was an issue of fact whether he posed an imminent threat when Officer 13 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 14 Morrison shot him near the entrance of the house, the district court stated: … the testimony is undisputed that after Smith took Debo into the kitchen to secure the dog, Debo escaped from her hold and charged the officers. There is no issue of material fact that when Officer Gaines shot and killed Debo in the doorway between the dining and living room, Debo posed an imminent threat to the safety of the officers. Officer Gaines was not unreasonable in shooting [and killing] Debo. (RE 27, Page ID # 956). The point here is that neither Plaintiffs nor anyone else has contended that Officer Morrison’s initial shooting of “Debo” (which did not kill him) was a “seizure” separate and distinct from Officer Gaines’ eventual killing of him, for which Gaines has been granted qualified immunity. Officer Morrison is, therefore, not liable for his earlier shooting of “Debo.” “Smoke” is the only dog to whom an admitted question of fact should apply on remand, should the Court not affirm on the Fourth Amendment property interest issue. Conclusion For all of these reasons, Defendants Morrison and Gaines ask the Court to grant en banc rehearing and affirm the district court’s ruling in its entirety. Respectfully submitted, s/Sheri L. Whyte Sheri L. Whyte (P41858) City of Detroit Law Department Attorney for Defendants 2 Woodward Avenue, Suite 500 Detroit, MI 48226 (313) 237-3076 whyts@detroitmi.gov DATED: October 29, 2018 14 Case: 17-1907 Document: 44-1 Filed: 10/29/2018 Page: 15 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing petition complies with Fed. R. App. P. 35(b)(2)(A), containing 3,898 words in a proportionally spaced font (Times New Roman) at 14 point. s/Sheri L. Whyte Sheri L. Whyte CERTIFICATE OF SERVICE I hereby certify that on October 29, 2018, I electronically filed the foregoing with the clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record with the court. s/Sheri L. Whyte Sheri L. Whyte 15