No. 99-1977 

In the Supreme Court of the United States 

DONALD SAUCIER, PETITIONER 

v. 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS 

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

TABLE OF AUTHORITIES 

Cases: Page 

Anderson v. Creighton, 483 U.S. 635 (1987) ..................... 

2, 4 

Behrens v. Pelletier, 516 U.S. 299 (1996) ........................... 

4 

Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990) ........ 

5 

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

5 

Hunter v. Bryant, 502 U.S. 224 (1991) ........................... 

2, 3, 5 

Malley v. Briggs, 475 U.S. 335 (1986) ........................ 

2, 3, 4, 5 

Priester v. City of Riviera Beach, 208 F.3d 919 (11th 

Cir. 2000) ................................................................................. 

5 

Snyder v. Trepagnier, cert. granted, 525 U.S. 1098, 

cert. dismissed, 526 U.S. 1083 (1999) ................................. 

6 

Weisgram v. Marley Co., 120 S. Ct. 1011 (2000) .............. 

6 

Wilson v. Layne, 526 U.S. 603 (1999) ................................. 

2 

Constitution and rule: 

U.S. Const. Amend. IV .................................................... 

1, 2, 4, 5 

Fed. R. Civ. P. 50 advisory committee’s note (1991 

Amendment) ........................................................................... 6 

Miscellaneous: 

Webster’s New World Dictionary (1986) .............................. 3 

(I) 

In the Supreme Court of the United States 

No. 99-1977 

DONALD SAUCIER, PETITIONER 

v. 

ELLIOT M. KATZ AND IN DEFENSE OF ANIMALS 

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

1. Respondent agrees that “[t]here is a significant 
split among the circuit courts” concerning the proper 
test for qualified immunity in Fourth Amendment 
unreasonable force cases. Resp. Br. 1. Respondent 
further agrees that the petition for a writ of certiorari 
“should be granted” in this case to resolve that division 
of authority. Ibid. See also id. at 2 (division in circuit 
authority responsible for “unequal outcomes” and 
“disarray” in appellate caselaw). Finally, respondent 
confirms that this case both properly raises the issue 
and provides an appropriate vehicle for resolving it. 
See id. at 5 (“split in the circuits can be resolved” in this 
case; “Court should use this case” to instruct trial 
courts on how to handle qualified immunity in such 
cases). 

(1) 

2 

2. After agreeing that this Court should grant the 
petition for a writ of certiorari, respondent turns to the 
merits, contending that courts should equate the 
qualified immunity inquiry in excessive force cases with 
the test of substantive reasonableness under the 
Fourth Amendment, as the Ninth Circuit did below. 
See Resp. Br. 3-5. Respondent, however, makes no 
effort to reconcile that immunity standard (or the court 
of appeals’ rationale for it) with this Court’s cases, 
including Anderson v. Creighton, 483 U.S. 635 (1987), 
which specifically addresses qualified immunity in the 
Fourth Amendment context. See Pet. 15-22. Nor does 
respondent attempt to reconcile the court of appeals’ 
decision with this Court’s repeated recognition that 
qualified immunity cannot be denied merely because 
the conduct is later held to be unlawful; instead, the 
Court has explained, immunity may be denied only “if, 
on an objective basis, it is obvious that no reasonably 
competent officer would have concluded” that the 
conduct was lawful at the time the defendant acted. 
Malley v. Briggs, 475 U.S. 335, 341 (1986) (emphasis 
added). See also ibid. (“if officers of reasonable compe- 
tence could disagree on” the lawfulness of the conduct, 
“immunity should be recognized”); Wilson v. Layne, 526 
U.S. 603, 614-615 (1999) (“ ‘[C]learly established’ for 
purposes of qualified immunity means that ‘[t]he 
contours of the right must be sufficiently clear that a 
reasonable official would understand that what he is 
doing violates that right.’ ”) (quoting Anderson v. 
Creighton, 483 U.S. at 639-640); Hunter v. Bryant, 502 
U.S. 224, 229 (1991) (per curiam) (qualified immunity 
“ ‘gives ample room for mistaken judgments’ by 

3 

protecting ‘all but the plainly incompetent or those who 
knowingly violate the law.’ ” (quoting Malley, 475 U.S. 
at 343, 341)).1 

1 While respondent devotes some of his brief to “clarification” 
of certain facts, Resp. Br. 1, he does not suggest that the clarifica- 
tions affect the suitability of this case as a vehicle for further 
review. Nor do we, since they do not signal the presence of factual 
disputes that might preclude or complicate resolution of the quali- 
fied immunity issues presented by the petition. First, respondent 
points out that he denied resisting arrest or pushing off the 
bumper with his feet. See ibid. We do not (for present purposes) 
contend otherwise, but we do point out that the issue here is not 
what respondent did; it is what the officers reasonably believed. 
See Pet. 29-30 (citing Hunter, 502 U.S. at 228). Second, respondent 
suggests (Resp. Br. 2) that petitioner and the other officers did not 
confront an “atmosphere of uncertainty,” because respondent had 
been “pointed out” to the officers before they arrested him. That, 
however, is not inconsistent with our assertion (Pet. 29) that there 
was uncertainty, not as to respondent’s identity as a potential pro- 
tester, but rather as to his likely response, and the likely response 
of the crowd around him, to the officers’ attempt to take him into 
custody. See Pet. 26-27. Finally, respondent argues (Resp. Br. 2) 
that he fell “headlong” into the van because, although respondent 
testified that he caught himself or “brace[d] himself with his 
hands,” that action merely prevented him from striking his head, 
and did not prevent him from falling down. Any disagreement 
on that point appears to be over the meaning of the word 
“headlong”—i.e., over whether or not the word properly applies to 
a fall in which the individual uses his hands to limit the fall and 
suffers no physical injury—and not over the events that took place. 
See Webster’s New World Dictionary 644 (1986) (defs. 1 and 2) 
(defining headlong as “with uncontrolled speed and force” or as 
“headfirst”). The fundamental nature of respondent’s fall—for- 
ward, inside the van—is not contested. Nor are the facts that the 
“shove” respondent characterizes as “violent” came from Sergeant 
Parker rather than petitioner, Pet. 27-28 & n.19, or that respon- 
dent suffered no injury of any variety, Pet. 3. There thus are no 
material disputes concerning the facts that must be taken as true 
at this stage of the case, and much of the relevant conduct (includ- 

4 

Instead, respondent argues that employing different 
tests for qualified immunity and substantive reason- 
ableness under the Fourth Amendment would be un- 
necessarily confusing, Resp. Br. 3-4, and would permit 
judges to substitute their views of the evidence for the 
jury’s, id. at 3, 4. Neither contention is correct. As 
Anderson v. Creighton itself proves, there is nothing 
unnecessarily confusing about employing the traditional 
qualified immunity standard, even where the constitu- 
tional standard itself is defined in terms of reason- 
ableness, and at least six courts of appeals have applied 
that teaching in excessive force cases. See Pet. 13-15. 
A court addressing a qualified immunity claim on sum- 
mary judgment must, for purposes of the motion, re- 
solve all material factual disputes in favor of the plain- 
tiff and “look[] to the evidence before it (in the light 
most favorable to the plaintiff).” Behrens v. Pelletier, 
516 U.S. 299, 309 (1996). The court then must ask 
whether, under those circumstances, any reasonable 
officer could have thought the conduct in question law- 
ful. If the answer is “yes,” immunity must be granted. 
See Malley, 475 U.S. at 341 (“if officers of reasonable 
competence could disagree on” the lawfulness of the 
conduct, “immunity should be recognized”). If instead, 
“on an objective basis, it is obvious that no reasonably 
competent officer would have concluded” that the 
conduct was lawful, immunity should be denied. Ibid. 

The fact that the case concerns a Fourth Amendment 
unreasonable force claim does not alter the fundamental 
nature of the qualified immunity inquiry. Even if the 
officer’s conduct might be “objectively unreasonable” 
and thus a violation of the Fourth Amendment, Gra- 

ing respondent’s fall) is in any event recorded on the videotape 
that has been submitted to this Court. 

5 

ham v. Connor, 490 U.S. 386, 397 (1989), the officer is 
entitled to immunity unless the conduct was so clearly 
proscribed by the Fourth Amendment—i.e., the unrea- 
sonableness sufficiently well established—at the time 
the officer acted that no reasonably competent official 
could have thought the conduct lawful. See Priester v. 
City of Riviera Beach, 208 F.3d 919, 926-927 (11th Cir. 
2000) (immunity is appropriate unless conduct “was so 
far beyond” the sometimes “hazy border between ex- 
cessive and acceptable force that [the official] had to 
know he was violating the Constitution,” i.e., unless 
“application of the [excessive force] standard would 
inevitably lead every reasonable officer in [the defen- 
dants’] position to conclude the force was unlawful”) 
(citations omitted); Finnegan v. Fountain, 915 F.2d 
817, 822-824 (2d Cir. 1990) (even if officer exerts “con- 
stitutionally excessive force,” qualified immunity is 
appropriate unless it “should have been apparent” that 
the “particular degree of force under the particular cir- 
cumstances was excessive”).2 

Nor does applying the ordinary qualified immunity 
test in Fourth Amendment unreasonable force cases 
permit courts to intrude into “the role of the jury” by 
“second guess[ing] the jury after it has applied the 

2 Respondent also argues that whether “one or two officers 
would have thought the conduct reasonable” should make no dif- 
ference, because the standard is objective rather than subjective. 
Resp. Br. 5. But the objective standard, as described by this 
Court, is whether, “on an objective basis, it is obvious that no 
reasonably competent officer would have concluded” that the 
conduct is lawful. Malley, 475 U.S. at 341. In other words, the 
conduct is protected by qualified immunity unless any officer who 
engages in it would be either “plainly incompetent or * * * 
knowingly violat[ing] the law.” Hunter, 502 U.S. at 229 (quoting 
Malley, 475 U.S. at 341). 

6 

Graham standard.” Resp. Br. 4. A court no more 
intrudes on the jury’s function in excessive force and 
qualified immunity cases than in any other situation in 
which a court grants judgment as a matter of law.3 
Moreover, when courts address qualified immunity, 
they view the facts in the light most favorable to the 
verdict (where the issue arises after trial) or the non- 
moving party (if the issue arises on summary judg- 
ment). That requirement ensures that courts do not 
intrude on the jury’s factfinding role. 

* * * * * 

Last term, this Court granted a writ of certiorari in 
Snyder v. Trepagnier, cert. granted, 525 U.S. 1098 
(1999) (No. 98-507), to resolve the same issue raised by 
this case. Because Snyder settled before decision, the 
writ was dismissed. See 526 U.S. 1083 (1999). This case 
presents the Court with an appropriate occasion to re- 
solve the issue that dismissal in Snyder left unresolved, 
and which still divides the courts of appeals. 

3 See Weisgram v. Marley Co., 120 S. Ct. 1011, 1018 (2000); see 
also Fed. R. Civ. P. 50 advisory committee’s note (1991 Amend- 
ment) (“The expressed standard makes clear that action taken 
under the rule is a performance of the court’s duty to assure 
enforcement of the controlling law and is not an intrusion on any 
responsibility for factual determinations conferred on the jury by 
the Seventh Amendment or any other provision of federal law.”). 

7 

For the foregoing reasons and those stated in the 
petition, it is respectfully submitted that the petition 
for a writ of certiorari should be granted. 

Respectfully submitted. 

SETH P. WAXMAN 

Solicitor General 

OCTOBER 2000