No. _________
================================================================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------SHANIZ WEST,
Petitioner,
v.
DOUG WINFIELD, ET AL.,
Respondents.
-----------------------------------------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI
-----------------------------------------------------------------SCOTT G. BULLOCK
ROBERT J. MCNAMARA*
JOSHUA A. WINDHAM
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, Virginia 22203
(703) 682-9320
rmcnamara@ij.org
*Counsel of Record
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
QUESTION PRESENTED
Whether an officer who has consent to “get inside”
a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely
factually on-point caselaw.

 ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioner Shaniz West was the plaintiff in the
United States District Court for the District of Idaho
and the plaintiff-appellant in the United States Court
of Appeals for the Ninth Circuit. Respondents Matthew
Richardson, Alan Seevers, and Doug Winfield,1 all police officers with the Caldwell, Idaho police department, were defendants in the district court and defendants-appellants in the Ninth Circuit. The City of
Caldwell, the City of Caldwell Police Department, and
former Caldwell Police Chief Chris Allgood were all defendants in the district court. The complaint filed in
the district court also named Does I–X, unidentified
Caldwell police officers involved in destroying West’s
home and belongings.
STATEMENT OF RELATED CASES
United States District Court (D. Idaho):
West v. City of Caldwell, No. 16-cv-00359 (Oct.
18, 2019).
United States Court of Appeals (9th Cir.):
West v. City of Caldwell, No. 18-35300 (July
25, 2019).

1

Richardson and Seevers were sued in their individual capacities; Winfield was sued in his official and individual capacities.

 iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDINGS BELOW .....

ii

STATEMENT OF RELATED CASES ..................

ii

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

v

PETITION FOR WRIT OF CERTIORARI ...........

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................

1

STATEMENT .......................................................

2

REASONS FOR GRANTING THE PETITION ...

9

A.

The decision below conflicts with decisions
from the Sixth and Seventh Circuits about
how qualified immunity applies when officials exceed the scope of consent to search .... 10

B.

The question presented is of national importance ..................................................... 14

C.

This case provides an ideal vehicle to resolve the jurisdictional split of authority
over an important constitutional issue ..... 17

CONCLUSION..................................................... 23

 iv
TABLE OF CONTENTS—Continued
Page
APPENDIX
United States Court of Appeals for the Ninth
Circuit, Opinion, Filed July 25, 2019 .............. App. 1
United States District Court for the District of
Idaho, Memorandum Decision and Order,
Filed March 28, 2018 ..................................... App. 30
United States Court of Appeals for the Ninth
Circuit, Order Denying Petition for Rehearing
en banc, Filed September 4, 2019 .................. App. 74

 v
TABLE OF AUTHORITIES
Page
CASES
Alexander v. Helber, 35 Mo. 334 (1864) ......................22
Anderson v. Creighton, 483 U.S. 635 (1987) ...............15
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ....................19
Banker v. Caldwell, 3 Minn. 94 (1859) .......................22
Boyd v. United States, 116 U.S. 616 (1886) ................20
Casey v. City of Fed. Heights, 509 F.3d 1278
(2007) .......................................................................16
City & County of San Francisco v. Sheehan, 135
S. Ct. 1765 (2015) ....................................................18
Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) ........ 17, 19
Crawford-El v. Britton, 523 U.S. 574 (1998) ..............20
Dist. of Columbia v. Wesby, 138 S. Ct. 577 (2018) ....... 18
Filarsky v. Delia, 566 U.S. 377 (2012) ........................19
Florida v. Jimeno, 500 U.S. 248 (1991) ...... 8, 10, 13, 14
Georgia v. Randolph, 547 U.S. 103 (2006)..................10
Golodner v. Berliner, 770 F.3d 196 (2d Cir. 2014) ....... 16
Graham v. Connor, 490 U.S. 386 (1989) .....................18
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............. 2, 10
Holliman v. Carroll’s Adm’rs, 27 Tex. 23 (1863) ........22
Hope v. Pelzer, 536 U.S. 730 (2002) .............................15
Ilsely v. Nichols, 29 Mass. 270 (1831) .........................21
Jermosen v. Smith, 945 F.2d 547 (2d Cir. 1991) .........16

 vi
TABLE OF AUTHORITIES—Continued
Page
Jones v. United States, 357 U.S. 493 (1958) ...............10
Kisela v. Hughes, 138 S. Ct. 1148 (2018) .............. 17, 18
Lammon v. Feusier, 111 U.S. 17 (1884) ......................22
Lowe v. Raemisch, 864 F.3d 1205 (10th Cir. 2017)........ 16
Masters v. Teller, 56 P. 1067 (1898) ............................21
Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir.
2008) ........................................................................13
Miller v. Horton, 26 N.E. 100 (Mass. 1891) ................21
Mountain Pure, LLC v. Roberts, 814 F.3d 928
(8th Cir. 2016)..........................................................17
Mullenix v. Luna, 136 S. Ct. 305 (2015) .....................18
Murray v. The Schooner Charming Betsy, 6 U.S.
(2 Cranch) 64 (1804)................................................21
Plumhoff v. Rickard, 572 U.S. 765 (2014) ..................18
Shamaeizadeh v. Cunigan, 338 F.3d 535 (6th Cir.
2003) .................................................................. 12, 13
Sharp v. County of Orange, 871 F.3d 901 (9th Cir.
2017) ........................................................................16
Stamps v. Town of Framingham, 813 F.3d 27 (1st
Cir. 2016) .................................................................16
United States v. Ibarra, 965 F.2d 1354 (5th Cir.
1992) ........................................................................11
United States v. Lanier, 520 U.S. 259 (1997) ....... 11, 15
United States v. Mire, 51 F.3d 349 (2d Cir. 1995) ........8
Walter v. United States, 447 U.S. 649 (1980) ...............13

 vii
TABLE OF AUTHORITIES—Continued
Page
Weld v. Green, 10 Me. 20 (1833)..................................22
West v. City of Caldwell, 931 F.3d 978 (9th Cir.
2019) ..........................................................................1
White v. Pauly, 137 S. Ct. 548 (2017) .................... 15, 18
Winfield v. Trottier, 710 F.3d 49 (2d Cir. 2013) ..........12
Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806) ............21
Wyatt v. Cole, 504 U.S. 158 (1992) ..............................20
Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019) ..... 2, 16
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............... 17, 20
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV ......................................... passim
STATUTES, CODES, AND RULES
28 U.S.C. § 1254(1) ........................................................1
42 U.S.C. § 1983 ............................................................2
OTHER AUTHORITIES
William Baude, Is Qualified Immunity Unlawful?,
106 Calif. L. Rev. 45 (2018) .....................................17
John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851 (2010) .............17

 viii
TABLE OF AUTHORITIES—Continued
Page
William L. Murfree, A Treatise on the Law of
Sheriffs and Other Ministerial Officers (St.
Louis, Nixon-James Printing Co. 1884)..................21
§ 611 ........................................................................22
§ 934 ........................................................................21
Joanna C. Schwartz, How Qualified Immunity
Fails, 127 Yale L.J. 2 (2017) ....................................17
Thomas G. Shearman & Amasa A. Redfield, A
Treatise on the Law of Negligence § 618 (New
York, Baker, Voorhis & Co. 4th ed. 1888) ...............21

 1
PETITION FOR A WRIT OF CERTIORARI
Petitioner seeks a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Ninth Circuit.
------------------------------------------------------------------

OPINIONS BELOW
The opinion of the court of appeals, App. 1, is reported at 931 F.3d 978. The opinion of the United
States District Court for the District of Idaho, App. 30,
is not reported.
------------------------------------------------------------------

JURISDICTION
The judgment of the court of appeals was entered
on July 25, 2019. Petitioner timely petitioned for rehearing, which was denied on September 4, 2019. On
November 19, 2019, Justice Kagan extended the time
to file a petition for a writ of certiorari until February
1, 2020. This petition is timely filed on January 16,
2020. Petitioner invokes this Court’s jurisdiction under
28 U.S.C. § 1254(1).
------------------------------------------------------------------

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects,

 2
against unreasonable searches and seizures, shall not
be violated.”
42 U.S.C. § 1983 provides that “[e]very person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or
causes to be subjected, any citizen of the United States
. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress[.]”
------------------------------------------------------------------

STATEMENT
Since 1982, this Court has held that government
officials may be held liable for violating the Constitution only if they violate a “clearly established” rule of
law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). But
the “courts of appeals are divided—intractably—over
precisely what degree of factual similarity must exist”
in order for a prior case to have “clearly established” a
rule of law. Zadeh v. Robinson, 928 F.3d 457, 479 (5th
Cir. 2019) (Willett, J., concurring in part and dissenting
in part). That intractable division has real consequences. Here, Petitioner Shaniz West gave law enforcement her consent to enter her home to search for
a fugitive whom they (incorrectly) believed was inside.
Instead of entering the home, the officers decided to
spend hours besieging it, during which time they
(among other things) repeatedly fired tear-gas grenades into the house from the outside. West sued,

 3
arguing that her consent to enter the home did not include consent to intentionally destroy it.
As a matter of Fourth Amendment law, this is not
a difficult legal question. Indeed, Petitioner can find no
case countenancing anything even close to what happened here. But as a question of qualified immunity, it
divided the panel below in exactly the way that similar
questions—about consent searches and about qualified
immunity more broadly—have divided the courts of
appeals. The petition for certiorari should be granted
to correct rampant confusion in the lower courts about
the proper scope of qualified immunity.
1. The events at the heart of this case began
around 2:20 p.m. on August 11, 2014, when West arrived home with her children to discover her house surrounded by the City of Caldwell police—five officers in
total, watching every exit. App. 35. The officers were
there because they had reason to suspect that West’s
ex-boyfriend, who was wanted on an outstanding warrant, was inside. App. 33–36.
West explained to Respondent Richardson that
her ex-boyfriend had been there earlier, that she had
told him to gather his belongings and leave, and that
she had told him to chain the front door behind him
and exit through the back. App. 33, 36. She also said
she could not be sure whether he had done so, but that
she was certain her dog was in the house. App. 36–37.
Richardson then threatened her with arrest for harboring a fugitive if the ex-boyfriend proved to be inside. App. 36. After some back-and-forth, Richardson

 4
eventually asked her for “permission to get inside [her]
house and apprehend him.” App. 38. West agreed and
handed him her keys. She then left.2 Soon after West
left, the sergeant in charge called the Canyon County
Prosecuting Attorney’s Office and spoke with an attorney, who informed him that if he had consent to search
the house, he did not need a warrant. App. 38–39.
But the officers on scene did not use the keys. Instead, the sergeant in charge called the local SWAT
unit, which had not previously been on scene, and
asked for their assistance. App. 39. By 3:00 p.m., about
half an hour after West had first come home, the SWAT
team had been activated. App. 40.
Once the SWAT team was activated, the plan
changed. Respondent Doug Winfield, the team leader,
developed a tactical plan “designed to extract [the exboyfriend] from the residence without requiring SWAT
members to go inside.” App. 40. The first step in the
plan was to surround the residence and call out in
hopes of inducing the ex-boyfriend to come out. App.
40–41. The second step was to bombard the home with
tear-gas grenades to force him to come out. App. 41. If
the tear gas failed, the SWAT team would then conduct
a “limited breach” of the home to search for him. Ibid.
The SWAT team conducted several dry runs of the plan
at police headquarters and then deployed to West’s
home, arriving there around 5:23 p.m.—about three
2

One officer testified below that he had wanted West to stay
during the search so “she could revoke consent at any time,” but
it is undisputed that the police did not require her to stay and
that she left with their full permission. App. 38.

 5
hours after West’s first conversation with the officers
on scene. Ibid.
At no point during this several-hour process was
West informed that the plan had changed from
“get[ting] inside [the] house” to bombarding it with
grenades. App. 38–40. At no point did she consent to
the new plan. Ibid. And at no point did any officer either obtain a warrant or seek further guidance from
counsel about the legality of their new plan. Ibid.
In West’s absence, the SWAT team implemented
the plan as described. First, they announced their presence. App. 42. Less than 20 minutes later, they began
bombarding the house with grenades. Ibid. A little after 7:00 p.m., they for the first time tried to use West’s
keys in her front door, which (as West had told them)
was chained shut. Ibid. The keys would have unlocked
the back door, but they were unnecessary: That door
had been shattered by a grenade, allowing the team to
enter without needing a key. Ibid.
After a thorough and destructive search, the police concluded that West had been right and her exboyfriend was not there. App. 43. Instead, the police
had spent hours laying siege to and bombarding a
house that was empty except for West’s dog, Blue.
West was not allowed to reenter her home until
some time later—and when she did, she found it “destroyed.” App. 43. Her and her children’s personal belongings were saturated with tear gas; there were
holes in walls and ceilings; and the home was littered
with debris and broken window glass. Ibid. During the

 6
siege, officers had fired tear gas into every living space
in the home, leaving everything—food, clothing, electronics, furniture—covered in a golden sticky residue
that caused burning and tearing upon contact. Ibid.
West and her children were unable to move back
into the home for two full months. App. 44. During that
period, the City of Caldwell provided them with a hotel
room for three weeks and offered $900 for the damage
caused to West’s personal property, but otherwise denied liability. Ibid.
2. West sued, alleging (as relevant here) that the
officers involved in the siege had violated her Fourth
Amendment rights by their warrantless bombardment
of and violent entry into her home. App. 48. She argued, in essence, that she had agreed only to allow the
police to “get inside” her home, and that no reasonable
officer could believe consent to “get inside” a home was
authorization to stand outside and destroy it. App. 49.
The parties cross-moved for summary judgment,
and the District Court of Idaho denied both motions.
App. 71. The court rejected West’s primary theory—
that the officers had exceeded the scope of her consent—but found that there was a fact dispute about
whether the search had been reasonable under the circumstances. App. 49–56. The court therefore denied
both West’s motion and the individual defendants’ motion seeking qualified immunity and ordered the case
to mediation. App. 71–73.
The individual defendants filed an interlocutory
appeal on the qualified-immunity question, and a

 7
divided panel of the Ninth Circuit reversed, finding
that the officers were entitled to qualified immunity
not just on the reasonableness of the search, but also
on the question of whether they had exceeded the scope
of West’s consent. App. 15, 19.
The panel majority found that the officers were entitled to qualified immunity on the scope-of-consent
question because “no Supreme Court or Ninth Circuit
case clearly established, as of August 2014, that Defendants exceeded the scope of consent” when they
took West’s permission to “get inside” her house as permission to bombard and destroy it. App. 13. After all,
the majority reasoned, the officers “did ‘get inside’ [her]
house, first with objects and later with people.” Ibid.
The majority specifically disclaimed, however, any
holding “that a ‘typical reasonable person’ consenting
to an entry to look for a suspect could be understood by
a competent police officer as consenting to damage to
his or her home so extreme that [it] renders [the home]
uninhabitable for months.” App. 13 (alterations in original). Neither did it dispute that “no reasonable person
would have understood [West’s] consent to encompass
shooting tear gas canisters into the house.” Ibid. Instead, its holding was premised solely on the absence
of a specific case in which an officer had exceeded consent in this particular way. Ibid.
Judge Berzon dissented, arguing that the officers
were not entitled to qualified immunity on the scopeof-consent claim. App. 20. In her view, it is “clearly established” law that “general consent to search is not

 8
without its limitations,” and in light of those limitations it is “clear that extensive property destruction rendering a home uninhabitable goes beyond the limitations
inherent in a general consent to search.” App. 24–25
(citing Florida v. Jimeno, 500 U.S. 248, 251–52 (1991)).
The dissent did not purport to find a “closely similar case[ ] to guide the clearly established law inquiry[.]” App. 27. Instead, it found no such case was
necessary because any competent officer would have
understood he could not lawfully destroy a house simply
because he had consent to enter it. Ibid. On Judge Berzon’s view, “the likely reason there are no closely similar cases standing for the proposition that officers may
not use a general consent to search to take actions that
render a home uninhabitable for months is that law
enforcement officers well understand” this would be illegal. Ibid. Indeed, the dissent noted that lower courts
were nearly unanimous in holding that a general consent to search could not authorize police to destroy or
render useless the property being searched.3
3

Judge Berzon’s opinion actually slightly understates lower
courts’ unanimity on this point. It suggests that “[t]he Second Circuit allows for intentional damage to personal property in the
course of a general consent search.” App. 25–26 & n.2 (citing
United States v. Mire, 51 F.3d 349, 351–52 (2d Cir. 1995)). But
the property damaged in Mire was a set of false-soled sneakers
being used to smuggle cocaine, and the per curiam opinion in that
case holds only that it was “objectively reasonable” for officers to
search the sneakers incident to the search of the bag they were
contained in. Id. at 351–53. The opinion does not discuss the degree to which the sneakers themselves were damaged, and the
damage to the property is not mentioned as an aspect of the
court’s Fourth Amendment analysis. Ibid.

 9
Because “the majority’s reading of West’s consent
. . . quite frankly, border[ed] on the fantastic,” App. 22,
the dissent found that there was “simply no plausible
possibility that a ‘typical reasonable person’ would
have understood that West agreed to the destruction”
of her home. App. 28. And where no reasonable officer
could have believed he was acting lawfully, qualified
immunity would be inappropriate. Ibid.
This petition followed.
------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION
The decision below exacerbates an existing split of
authority among the Second Circuit (which follows the
rule articulated by the majority) and the Sixth and
Seventh Circuits (both of which follow the rule advocated by the dissent). And that split matters—both on
its own and because it is emblematic of a deeper and
enduring disagreement among the courts of appeals
over what constitutes “clearly established” law for purposes of qualified immunity. Finally, this case presents
these legal disputes in an ideal vehicle in which this
Court’s traditional justifications for qualified immunity are notably absent.

 10
A. The decision below conflicts with decisions from the Sixth and Seventh Circuits about how qualified immunity
applies when officials exceed the scope
of consent to search.
There is no dispute about the underlying substantive law of consent searches. This Court has long held
that while consent is an exception to the Fourth
Amendment’s warrant requirement, it is an exception
“jealously and carefully drawn.” Georgia v. Randolph,
547 U.S. 103, 109 (2006) (quoting Jones v. United
States, 357 U.S. 493, 499 (1958)). And there is no question that, when searching pursuant to consent, authorities are limited to the scope of that consent. Florida v.
Jimeno, 500 U.S. 248, 251 (1991). Where lower courts
disagree, however, is whether and when these established principles constitute “clearly established” law
that government officials may be held liable for violating. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The disagreement among the lower courts is illustrated by the two opinions below. The majority held
that the officers were entitled to qualified immunity
because “no Supreme Court or Ninth Circuit case
clearly established, as of August 2014, that Defendants
exceeded the scope of consent” by bombarding the
house instead of using the keys to go inside. App. 13.
The dissent would have held that no such case is necessary because “there is simply no plausible possibility that a ‘typical reasonable person’ ” would have
believed he was acting lawfully in destroying West’s
home. App. 28.

 11
This is not a dispute about the law of the Fourth
Amendment. The majority opinion seems perfectly correct that there is no existing case holding that consent
to enter a house does not encompass consent to bombard it with grenades. But the dissent is also correct
that there is no case holding to the contrary, and that
no officer seems to have ever even made this argument
to a federal court. Cf. United States v. Lanier, 520 U.S.
259, 271 (1997) (“ ‘The easiest cases don’t even
arise.’ ”).4 This is, instead, a dispute about the law of
qualified immunity.

4

It is revealing that in the most factually similar case the
dissent points to, seemingly every judge on the Fifth Circuit
agreed that the sort of home-destroying conduct engaged in here
would violate the Fourth Amendment. App. 25–26 (citing United
States v. Ibarra, 965 F.2d 1354 (5th Cir. 1992)). In Ibarra, an
evenly divided Fifth Circuit affirmed a holding that police exceeded consent to search a home when they destroyed some
boards to gain access to the home’s attic. See United States v.
Ibarra, 965 F.2d 1354, 1358–59 (5th Cir. 1992) (en banc) (opinion
of Jolly, J.). Half the judges found that breaking apart a boardedup area was outside the scope of consent to search because consenting to a search does not include consent to break down doors.
Id. at 1358. The other half would have held that the search did
not violate the scope of consent—but only because they believed
the searching officers had not caused the sort of damage undisputedly caused here. Id. at 1360–61 (Duhe, J., dissenting); cf. id.
at 1357 n.3 (opinion of Jolly, J.) (chiding the dissenting opinion
for taking too narrow a view of “structural” damage as including
only damage that “would render a house uninhabitable”). Ibarra
does not, of course, satisfy the panel majority’s demand for onpoint caselaw here—breaking boards is not launching grenades—
but it reflects the huge distance between courts’ analysis of the
qualified immunity question and their analysis of the substantive
constitutional question.

 12
And it is a dispute that maps perfectly onto an existing disagreement among the Second, Sixth, and Seventh Circuits. The majority’s holding finds support in
the Second Circuit, which also demands an on-point
case holding that a specific search exceeded a specific
consent. Winfield v. Trottier, 710 F.3d 49 (2d Cir. 2013).
In Winfield, an officer who had general consent to
search a vehicle proceeded to open envelopes (while
“not looking for anything in particular”) and read private correspondence. Id. at 52. The Second Circuit held
that while the search had in fact violated the Fourth
Amendment, qualified immunity was appropriate in
the absence of precisely on-point caselaw. Id. at 57.
Specifically, the Second Circuit found that the only way
to defeat qualified immunity would be to identify a
prior Second Circuit case holding “[i]t is a Fourth
Amendment violation when a police officer reads a suspect’s private papers, the text of which is not in plain
view, while conducting a search authorized solely by
the suspect’s generalized consent to search the area in
which the papers are found.” Ibid.
But that approach to qualified immunity for consent searches (like that of the panel majority below)
conflicts directly with the law of the Sixth and Seventh
Circuits. Both the Sixth and Seventh Circuits have
adopted the exact approach advocated by the dissent
below in the course of rejecting qualified immunity for
officers who exceed the scope of consent to search.
In Shamaeizadeh v. Cunigan, the Sixth Circuit
held that no on-point case is needed to defeat qualified
immunity where the police clearly exceed the scope of

 13
consent. 338 F.3d 535, 546 (6th Cir. 2003). There, a
woman called the police to report a potential robbery
in progress. Id. at 541. When an officer arrived, she
gave him consent to search the house for the intruder.
Id. But, growing suspicious, the officer called in others—first a supervisor to conduct a second search, and
then later an officer with greater experience in detecting drugs to conduct a third. Id. at 542. The Sixth Circuit denied qualified immunity for the second and
third searches. Id. at 547–50. It did not point to any
factually analogous case. Instead, it followed the approach advocated in dissent here: It held that it was
clearly established that “the scope of a search is limited
by the terms of its authorization,” id. at 550 (quoting
Walter v. United States, 447 U.S. 649, 657 (1980)), and
that qualified immunity was inappropriate because a
reasonable officer “could not have objectively considered the consent . . . to have extended beyond [the] initial search of the residence.” Ibid.
So too in the Seventh Circuit. In Michael C. v.
Gresbach, a social worker obtained consent to interview children about alleged abuse, but then also
searched their bodies. 526 F.3d 1008 (7th Cir. 2008).
The social worker claimed qualified immunity, arguing
that although the Seventh Circuit had clearly established that the Fourth Amendment applied to social
workers, its earlier cases had not addressed the scopeof-consent question. Id. at 1017. But the Seventh Circuit rejected this argument. Like the dissent below, it
cited Jimeno for a “general constitutional rule” about
the scope of consent. Ibid. And even though Jimeno

 14
had applied that rule in the context of a car search, the
court held that it applied “with obvious clarity” to the
social worker’s search of a child. Ibid. It was therefore
“clearly established that the scope of consent to interview does not extend to a search of an individual’s body
under Jimeno and its progeny[,]”5 and qualified immunity was inappropriate. Ibid.
In brief, the panel majority’s view of qualified immunity under Jimeno represents the law of the Second
(and now the Ninth) Circuit. But the dissent’s view of
the law is correct in both the Sixth and Seventh Circuits. This Court’s intervention is warranted to resolve
this split of authority.
B. The question presented is of national
importance.
The narrow circuit split over qualified immunity
in scope-of-consent cases matters because it is not
simply a disagreement about consent searches. Instead,
the split presented by this case is emblematic of a
broader disagreement about what constitutes “clearly
established” law for purposes of qualified immunity.
Some courts view the inquiry as a practical one, asking
whether an officer’s conduct was reasonable in light of
clearly established legal principles. Others view it as a

5

Despite the reference to Jimeno’s progeny, the Seventh
Circuit did not identify—and rejected the need for—any case after
Jimeno presenting the same facts as the case before it. Ibid.

 15
formal inquiry, asking whether a federal court has ever
addressed an officer’s specific conduct.
This dispute is rooted in this Court’s seeming endorsement of both approaches. In one line of cases, this
Court embraces the practical nature of the inquiry,
stressing that the purpose of qualified immunity is to
ensure that officials have “fair warning” their conduct
is unlawful. Hope v. Pelzer, 536 U.S. 730, 740–41 (2002).
When describing this vision of the doctrine, the Court
rejects any “rigid gloss on the qualified immunity
standard” that would “require[ ] that the facts of previous cases be ‘materially similar’ ” to the case at bar. Id.
at 739; see also United States v. Lanier, 520 U.S. 259,
271 (1997) (“[G]eneral statements of the law are not
inherently incapable of giving fair and clear warning,
and in other instances a general constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question[.]”);
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (rejecting notion that “an official action is protected by qualified immunity unless the very action in question has
previously been held unlawful”).
But in other cases, the Court has articulated a far
more formal version of the doctrine. In this version
(which largely appears in the use-of-force context, infra at 18), the question for a court is almost entirely
subsumed in a search for an existing “case where an
officer acting under similar circumstances as [a defendant] was held to have violated” the Constitution.
White v. Pauly, 137 S. Ct. 548, 552 (2017).

 16
The result of these two overlapping visions of
qualified immunity is that the “courts of appeals are
divided—intractably—over precisely what degree of
factual similarity must exist” to defeat qualified immunity. Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir.
2019) (Willett, J., concurring); see also Golodner v. Berliner, 770 F.3d 196, 205 (2d Cir. 2014) (“Few issues related to qualified immunity have caused more ink to be
spilled than whether a particular right has been
clearly established. . . .”). And there are nearly as
many approaches to this question as there are courts
of appeals. In the First Circuit, there is a two-part test
to determine whether the law is “clearly established.”
Stamps v. Town of Framingham, 813 F.3d 27, 34 (1st
Cir. 2016). The Second Circuit’s test has three parts.
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991).
The Tenth Circuit does not use parts but instead employs a “sliding scale to determine when law is clearly
established.” Casey v. City of Federal Heights, 509 F.3d
1278, 1284 (10th Cir. 2007); but see Lowe v. Raemisch,
864 F.3d 1205, 1211 n.10 (10th Cir. 2017) (noting possible tension between “sliding scale” approach and
some of this Court’s decisions). In recent years, the
Ninth Circuit has at times eschewed tests altogether
and instead suggested that, at least in the Fourth
Amendment context, it may be almost impossible to
say that an officer “obvious[ly]” violated the law without a direct case on point. Sharp v. Cnty. of Orange, 871
F.3d 901, 912 (9th Cir. 2017). Meanwhile, courts in the
Eighth Circuit are more “flexible” in their search for
on-point precedent and instead “demand[ ] that officials apply general, well-developed legal principles” in

 17
Fourth Amendment qualified-immunity cases. Mountain Pure, LLC v. Roberts, 814 F.3d 928, 932 (8th Cir.
2016).
Unsurprisingly, different tests yield different results in similar cases. Indeed, the split among the Second, Sixth, Seventh, and Ninth Circuits about qualified
immunity in the consent-search context is just one example of this broader, intractable methodological disagreement about the underlying doctrine of qualified
immunity. This Court’s intervention is warranted to resolve the deep disagreements among the lower courts.
C. This case provides an ideal vehicle to resolve the jurisdictional split of authority
over an important constitutional issue.
For years, jurists and scholars alike have criticized
existing qualified-immunity doctrine based both on legal objections to the doctrine’s foundations and policy
objections to the doctrine’s failure to achieve its stated
goals.6 This case is an ideal opportunity for the Court
to address those concerns. The question presented was
the sole ground of dispute between the majority and
6

See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018)
(Sotomayor, J., dissenting); Ziglar v. Abbasi, 137 S. Ct. 1843,
1872 (2017) (Thomas, J., concurring in part and concurring in the
judgment); Cole v. Carson, 935 F.3d 444, 470–73 (5th Cir. 2019)
(en banc) (Willett, J., dissenting); William Baude, Is Qualified
Immunity Unlawful?, 106 Calif. L. Rev. 45, 88 (2018); John C.
Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 Fla. L.
Rev. 851, 869 (2010); Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 70 (2017).

 18
dissenting opinions below, and the case arises on crossmotions for summary judgment that present a clean
fact record.
Moreover, this case presents circumstances in
which at least two of the Court’s longstanding justifications for the qualified-immunity doctrine are notably
absent.
First, this Court has repeatedly explained that a
core policy justification for qualified immunity is to ensure courts’ constitutional analyses account for the fact
that “ ‘police officers are often forced to make split-second judgments’ ” and may accordingly make mistakes.
City & Cnty. of San Francisco v. Sheehan, 135 S. Ct.
1765, 1775 (2015) (quoting Plumhoff v. Rickard, 572
U.S. 765, 775 (2014)); accord Kisela v. Hughes, 138
S. Ct. 1148, 1152 (2018) (per curiam) (quoting Graham
v. Connor, 490 U.S. 386, 396 (1989)). And, indeed, most
of the modern cases in which this Court has invoked a
stringent requirement for factually similar caselaw fit
this justification exactly: They involve an officer in a
fast-moving situation deciding whether to detain a
suspect or how much force to use.7 But the Court has
never squarely addressed whether the analysis should
differ where this core justification for qualified

7

See, e.g., Kisela, 138 S. Ct. at 1152 (qualified immunity for
use of force); Dist. of Columbia v. Wesby, 138 S. Ct. 577, 587–89
(2018) (qualified immunity for asserted false arrest); White v.
Pauly, 137 S. Ct. 548, 551–52 (2017) (per curiam) (qualified immunity for use of force); Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (qualified immunity for use of force).

 19
immunity is absent.8 Cf. Cole v. Carson, 935 F.3d 444,
472 (5th Cir. 2019) (Willett, J., dissenting) (proposing
that this Court should “clarify[ ] the degree of factual
similarity required in cases involving split-second decisions versus cases involving less-exigent situations”).
This case presents exactly that scenario. The officers besieging West’s house had ample time to consider
their action. They had ample time to seek legal counsel. Indeed, they did exactly that—they just did not
seek legal counsel again after their plans changed from
getting inside the house to standing outside the house
bombarding it with grenades. See App. 38–40. If the
point of qualified immunity is to protect officers in fastmoving situations, the Court should hold that the doctrine has less force in slow-moving situations that invite reflection. And if that is not the point of qualified
immunity, this case presents an opportunity for the
Court to clarify its earlier statements about the scope
of the doctrine.
Second, this Court has at times expressly grounded
its qualified-immunity jurisprudence in the history of
common-law immunities that existed at the time of the
adoption of Section 1983. E.g., Filarsky v. Delia, 566
U.S. 377, 383–84 (2012). At the same time, Members of
this Court have routinely noted that the actual doctrine seems far afield from any analogous common-law
8

To be sure, this Court has found qualified immunity in contexts where officials had ample time to engage in careful deliberation, but in these cases the Court has also tended to express deep
skepticism of (or even outright rejected) the underlying constitutional claim. Cf. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

 20
immunities. See Crawford-El v. Britton, 523 U.S. 574,
611 (1998) (Scalia, J., dissenting); Wyatt v. Cole, 504
U.S. 158, 170 (1992) (Kennedy, J., concurring). Justice
Thomas, in particular, has recently suggested that the
Court’s qualified-immunity jurisprudence should be
reevaluated in light of common-law tort principles of
1871. Ziglar v. Abbasi, 137 S. Ct. 1843, 1871–72 (2017)
(Thomas, J., concurring in part and concurring in the
judgment) (citing Baude, supra).
On this front, too, this case presents facts that
would help the Court clarify the importance of history.
West’s claim is that local government officials committed a trespass—that they exceeded the scope of her
consent to enter her home, and that they should be
held liable for doing so. Under any plausible understanding of 19th century common law, the physical invasion of one’s home by government agents without a
court order would have subjected those agents to a suit
in trespass.
Indeed, trespass suits like these are at the very
heart of the Fourth Amendment itself. This Court has
identified the roots of the Fourth Amendment’s protection from “unreasonable” search and seizure as stemming from a lawsuit filed in trespass after government
agents searched a private home and damaged private
property pursuant to a general warrant. Boyd v. United
States, 116 U.S. 616, 626 (1886) (extolling Lord Camden’s decision in in Entick v. Carrington & Three Other
King’s Messengers as a “monument of English freedom”).

 21
And that robust tradition of trespass liability for
officials who unlawfully searched, seized, or destroyed
property continued after the adoption of Section 1983.9
Indeed, the majority view in the 19th century was that
the only proof necessary in a trespass action against
an official was that the trespass itself had occurred;
any official justification had to be proved as an affirmative defense. Masters v. Teller, 56 P. 1067, 1069–70
(Okla. 1898) (collecting authorities). And an officer who
trespassed without a court order did so at his peril,
without any apparent presumption of legality.10 E.g.,
9

In the words of one leading treatise of the time, “[i]t is almost unnecessary to say that a sheriff is responsible civilly for an
abuse of his authority or oppression in the exercise of his functions.” 2 William L. Murfree, A Treatise on the Law of Sheriffs and
Other Ministerial Officers § 934, at 473 (St. Louis, Nixon-James
Printing Co.1884); accord 2 Thomas G. Shearman & Amasa A.
Redfield, A Treatise on the Law of Negligence § 618, at 475 (New
York, Baker, Voorhis & Co. 4th ed. 1888) (“[N]o action, unless
given by statute will lie against the [sheriff ’s] deputy for mere
breach of duty in his office[,] though he is personally liable for a
trespass committed by him in the supposed discharge of his
duty.”); see also Wise v. Withers, 7 U.S. (3 Cranch) 331, 336–37
(1806) (awarding damages in trespass against officers who acted
to enforce an unlawful fine); Murray v. The Schooner Charming
Betsy, 6 U.S. (2 Cranch) 64, 123–25 (1804) (Marshall, J.) (upholding award of damages against a captain who seized a vessel without probable cause despite the fact that “he acted upon correct
motives[ and] from a sense of duty”); Miller v. Horton, 26 N.E.
100, 102–03 (Mass. 1891) (Holmes, J.) (holding—on explicit constitutional-avoidance grounds—that nuisance statute authorizing destruction of diseased horses allowed for subsequent tort suit
against an officer if the horse had not actually been diseased).
10
These trespass actions included claims for damage caused
in the course of the trespass. E.g., Ilsely v. Nichols, 29 Mass. 270
(1831) (affirming plaintiff ’s recovery of $75 from an officer who

 22
Alexander v. Helber, 35 Mo. 334, 340–41 (1864) (holding
officer personally liable for seizing property under
town ordinance where ordinance was invalid as a matter of state law). It was not controversial in the middle
of the 1800s to say that an officer who overstepped in
searching or seizing property could be sued in trespass;
instead, the salient legal controversies of the time were
over whether an officer would be indemnified for that
trespass.11
Given the historical grounding of trespass claims
against government officials, this case presents a clear
“broke the outer door [of ] the plaintiff ’s house”); see also, e.g.,
Weld v. Green 10 Me. 20 (1833) (sheriff sued in tort for “the estimated value of [the damaged brig] when attached” because “the
law is perfectly clear that the Sheriff is answerable for such value
at all events”); Banker v. Caldwell, 3 Minn. 94 (1859) (“There can
be no doubt that the sheriff was guilty of a flagrant violation of
his duty in copying the plaintiff ’s books, and that an action will
lie against him for the damage the plaintiff has sustained by reason of his misconduct.”).
11
See, e.g., Holliman v. Carroll’s Adm’rs, 27 Tex. 23, 26–27
(1863) (collecting authorities and distinguishing between an officer who “was guilty of malfeasance in attempting to perform an
official duty,” who would be indemnified by a surety, and an officer
acting “without any process whatever[,]” who would not); accord
Lammon v. Feusier, 111 U.S. 17, 19 (1884) (noting same distinction as a matter of federal law); see also 2 Murfree, supra, § 611
at 284–85 (noting the then-recent trend of indemnification by
bond or surety was a “depart[ure] from the rigor of the old rule,
that in all cases ‘the sheriff acts at his peril,’ and to exact from
that officer in common with all others, only a reasonable service”).
While courts eventually developed doctrines of good-faith immunity for government officials, those developments “almost entirely
post-dated the enactment of Section 1983.” Baude, supra, at 59–
60.

 23
opportunity for the Court to clarify what role, if any,
historical immunity doctrines play in its modern qualified-immunity jurisprudence.
***
Simply put, this case presents an important question. It presents that question with no vehicle problems. And it presents the question in a context that
would allow this Court to clarify the margins of its
qualified-immunity doctrine. For all of these reasons,
the petition for certiorari should be granted.
------------------------------------------------------------------

CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
SCOTT G. BULLOCK
ROBERT J. MCNAMARA*
JOSHUA A. WINDHAM
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, Virginia 22203
(703) 682-9320
rmcnamara@ij.org
*Counsel of Record