No.

Supreme Court, U.$.FILED

0 7 -e ./..1. ~:C.1: ~ 2.001

~’~"" ~,,.:: CLERK

IN THE

STEVEN MORRIS AND TIM SHAW,

Petitioners,

V.

CENTER FOR BIO-ETHICAL REFORM, INC., ET AL.,Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ELAINE J. GOLDENBERGCounsel o£Reeord

SCOTT B. WILKENSJENNER & BLOCK LLP

601 Thirteenth Street, N.W~Washington, DC 20005(202) 639-6000

Counsel for PetitionersDecember 18, 2007

iQUESTIONS PRESENTED

1. Whether, in rejecting federal law enforcementofficers’ qualified immunity defense to a FirstAmendment retaliation claim, the Sixth Circuit ruledin conflict with this Court’s precedents by holdingthat a factual dispute as to the officers’ motive wasdispositive of qualified immunity without consideringwhether it was clearly established that the officers’actions would chill speech.

2. Whether, in assessing a First Amendmentretaliation claim, a court should consider whether aperson of ordinary firmness "similarly situated" tothe plaintiff would be chilled by the governmentconduct, as some Courts of Appeals have held, orwhether a court should consider only whether an"average law abiding citizen" would be chilled, as theSixth Circuit held in this case.

3. Whether a federal law enforcement officer whoparticipates in a Terry stop may be held personallyliable for money damages if a reasonable officer couldhave believed that his individual actions comportedwith the Fourth Amendment.

iiPARTIES TO THE PROCEEDING

The parties to the proceeding in the court whosejudgment is sought to be reviewed are the following:

Plaintiffs-Appellants: Center for Bio-EthicalReform, Inc., Mark Harrington, Quentin Patch, andDale Henkel.

Defendants-Appellees: the City of Springboro andClearcreek Township, as municipal entities;Springboro Police Chief Jeffrey Kruithoff;Clearcreek Township Police Chief Peter Herdt; FBISupervisory Special Agent Steven Morris; FBISpecial Agents Michael Burke and Tim Shaw, intheir official capacities; and Kruithoff, Herdt, Morris,Burke, Shaw, Clearcreek Township Officers JeffPiper and Brian Hubbard, and Springboro OfficersTim Parker, Lisa Walsh, Randy Peagler, Nick Clark,and Eric Kuhlman, in their individual capacities.

Only Defendants-Appellees FBI SupervisorySpecial Agent Steven Morris and FBI Special AgentTim Shaw are Petitioners in this Court.

oooIII

TABLE OF CONTENTSPage

QUESTIONS PRESENTED .......................................iPARTIES TO THE PROCEEDING ...........................iiTABLE OF AUTHORITIES ........................................vOPINIONS BELOW ....................................................1JURISDICTION ..........................................................1STATUTES INVOLVED .............................................1STATEMENT OF THE CASE ....................................1

A. Respondents’ Conduct and theInvestigation by Local Law Enforcementand the FBI .............................................................1

B. Proceedings Below ...............................................l0REASONS FOR GRANTING THE WRIT ................16I. The Sixth Circuit’s Decision Conflicts With

This Court’s Precedents and The Decisions ofOther Circuits In Treating Allegations of AMotive to Retaliate Against Protected SpeechAs Dispositive of the Issue of QualifiedImmunity ..............................................................18

II. The Sixth Circuit’s Ruling Conflicts With TheDecisions of Other Circuits Regarding theStandard for Assessing Whether AllegedGovernment Conduct Would Chill a Person ofOrdinary Firmness from Speaking Freely ..........28

III.The Sixth Circuit’s Ruling Conflicts With TheDecisions of This Court and Other Circuits inHolding that Petitioners Violated ClearlyEstablished Fourth Amendment Law .................31

CONCLUSION ..........................................................36

iv

Appendix AOpinion, Center for Bio-Ethieal Reform, Inc. v.City of Springboro, 477 F.3d 807 (6th Cir.2007) .....................................................................la

Appendix B

Decision and Entry Adopting MagistrateJudge Report and Recommendations, Centerfor Bio-Ethical Reform, Inc. v. City ofSpringboro, No. 3:03-ev-057, 2005 WL 3593741(S.D. Ohio Dee. 30, 2005) .................................. 51a

Appendix C

Magistrate Judge Report andRecommendations, Center for Bio-Ethica]Reform, Inc. v. City of Springboro, No. 3:03-ev-057 (S.D. Ohio Aug. 7, 2005) ............................. 64a

Appendix D

Order Denying Rehearing, Center for Bio-Ethical Reform, Inc. v. City of Springboro, No.06-3284 (6th Cir. Aug. 10, 2007) ....................... 95a

Appendix E

Constitutional Provisions Involved ...................97a

V

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton, 483 U.S. 635(1987) ....................................... 20, 21, 22, 24, 30

Bakalis v. Golembeski, 35 F.3d 318 (7thCir. 1994) ........................................................25

Baltimore Sun Co. v. Ehrlich, 437 F.3d 410(4th Cir. 2006) .................................................29

Bivens v. Six Unknown Named Agents ofFederal Bureau of Narcotics, 403 U.S.388 (1971) ........................................................10

Blankenship g. Manchin, 471 F.3d 523 (4thCir. 2006) ........................................................29

Brosseau y. Haugen, 543 U.S. 194 (2004) .....21, 27

City o£ Indianapolis v. Edmond, 531 U.S.32 (2000) ..........................................................32

Craw£ord-E1 v. Britton, 523 U.S. 574(1998) ................................. 18, 21, 22, 24, 26, 27

Cunningham v. Gates, 229 F.3d 1271 (9thCir. 2000) ........................................................25

Davis y. Soberer, 468 U.S. 183 (1984) .................20

Eaton v. Meneley, 379 F.3d 949 (10th Cir.

2004) ................................................................26

Florida v. J.L., 529 U.S. 266 (2000) .....................32

Footev. Spiegel, 118 F.3d 1416 (10th Cir.

1997) ................................................................25

viGill v. Pidlypchak, 389 F.3d 379 (2d Cir.

2004) ................................................................29

Harlow v. Fitzgerald, 457 U.S. 800(1982) ...................................................18, 19, 20

Hartman v. Moore, 547 U.S. 250 (2006) .............22

Hope v. Pelzer, 536 U.S. 730 (2002) ....................32

Houston v. Clark County Sheriff DeputyJohn Does 1-5, 174 F.3d 809 (6th Cir.1999) ................................................................32

Hunter v. Bryant, 502 U.S. 224 (1991) ... 20, 23, 27

Jackson g. Wren, 893 F.2d 1334, 1990 WL4051 (6th Cir. 1990) (unpublished tabledecision) .......................................................... 33

Los Angeles County v. Rettele, 127 S. Ct.1989 (2007) .................................................26-27

Malley v. Briggs, 475 U.S. 335 (1986) ...........24, 26

Mattox v. City of Forest Park, 183 F.3d 515(6th Cir. 1999) .................................................28

Mitchell v. Forsyth, 472 U.S. 511 (1985) ......19, 26

Perez v. Ellington, 421 F.3d 1128 (10th Cir.2005) ..........................................................23, 28

Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002) .......25

Rouse v. Plantier, 182 F.3d 192 (3d Cir.1999) ................................................................25

Saucier v. Katz, 533 U.S. 194(2001) ................................. 10, 21, 23, 25, 26, 28

viiSee v. City of Elyria, 502 F.3d 484 (6th Cir.

2007) ................................................................28

Siegert v. Gilley, 500 U.S. 226 (1991) .................27

Smith v. Plati, 258 F.3d 1167 (10th Cir.2001) ................................................................28

Suarez Corp. Industries v. McGraw, 202F.3d 676 (4th Cir. 2000) .................................29

Tenney v. Brandhove, 341 U.S. 367 (1951) .........18

Thaddeus-X v. Blatter, 175 F.3d 378 (6thCir. 1999) ........................................................28

Trulock v. Freeh, 275 F.3d 391 (4th Cir.2001) ................................................................25

United States v. Borrero, 770 F. Supp.1178 (E.D. Mich. 1991) ...................................33

United States v. Butler, 223 F.3d 368 (6thCir. 2000) ........................................................34

United States v. Calderon-Valenzuela, 211F.3d 1270, 2000 WL 571953 (6th Cir.2000) (unpublished table decision) ................33

United States v. Heath, 259 F.3d 522 (6thCir. 2001) ........................................................34

United States v. Lanier, 520 U.S. 259(1997) ...............................................................32

United States v. Montoya de Hernandez,473 U.S. 531 (1985) .........................................32

United States v. Place, 462 U.S. 696 (1983) .......34

United States v. Sharpe, 470 U.S. 675(1985) ................................................... 31, 32, 35

VIII

United States v. Win£rey, 915 F.2d 212 (6thCir. 1990) ........................................................33

Waldrop v. Evans, 871 F.2d 1030 (11th Cir.1989) ................................................................25

Wilson v. Layne, 526 U.S. 603 (1999) .................26

STATUTES AND REGULATIONS

18 U.S.C. § 248 .......................................................4

18 U.S.C. § 2331(5) ................................................4

28 U.S.C. § 1254(1) ................................................

28 U.S.C. § 1331 ...................................................10

42 U.S.C. § 1983 ...................................................10

28 C.F.R. § 0.85(]) ...................................................4

MISCELLANEOUS

Attorney General’s Guidelines on GeneralCrimes, Racketeering Enterprise andDomestic Security/TerrorismInvestigations (Mar. 21, 1989), availableat http:www.usdoj, gov/ag/readingroom/generalerimea.htm ............................................4

Shaila Dewan, Victims Have Say asBirmingham Bomber is Sentenced, N.Y.Times, July 19, 2005, at A14 ............................5

David Staba, Li£e Term for I~’]ler ofBuffalo-Area Abortion Provider, N.Y.Times, June 20, 2007, at B7 .............................5

20 U.S. Op. Off. Legal Counsel 26, 1996WL 33101191 (Feb. 5, 1996) ...........................33

OPINIONS BELOW

The opinion of United States Court of Appeals forthe Sixth Circuit reversing the grant of summaryjudgment for Petitioners is reported at 477 F.3d 807.Pet.App.la-50a. The Sixth Circuit’s order denyingrehearing is unreported. Pet.App.95a-96a. Theopinion of the District Court (S.D. Ohio) adopting thereport of the Chief Magistrate Judge is unreported.Pet.App.51a-63a. The report of the Chief MagistrateJudge is unreported. Pet.App.64a-94a.

JURISDICTION

The Sixth Circuit entered its judgment onFebruary 20, 2007, and denied a timely petition forrehearing on August 10, 2007. On November 6,2007, Justice Stevens granted Petitioners’application for a 40-day extension of the time to file apetition for writ of certiorari. This Court’sjurisdiction rests on 28 U.S.C. § 1254(1).

STATUTES INVOLVED

This case involves application of the FirstAmendment and the Fourth Amendment. Thepertinent provisions are reproduced at Pet.App.97a.

STATEMENT OF THE CASE

A. Respondents’ Conduct and the Investigationby Local Law Enforcement and the FBI.

Respondent Center for Bio-Ethical Reform, Inc.("CBR") is anon-profit corporation engaged in"educational campaigns," including the"ReproductiveChoice Campaign." To publicizeCBR’s anti-abortion message, CBR employees and

2volunteers drive box trucks along "the streets andhighways of major cities and towns throughout theUnited States." Pet.App.2a. The sides of thesetrucks display "large colorful pictures depictinggraphic images of first-term aborted fetuses."Pet.App.2a.

On June 10, 2002, Respondent Mark Harrington,executive director of CBR’s Midwest operations, andRespondents Quentin Patch and Dale Henkel, CBRvolunteers, carried out such a campaign in andaround Dayton, Ohio. Harrington and Patch eachdrove a box truck displaying graphic anti-abortionimages. They were both wearing body armor, andPatch also wore a kevlar helmet. Henkelaccompanied the trucks in a black Crown Victoriaequipped to look like a police car, with tintedwindows, a dashboard-mounted video camera, a cagebehind the driver’s seat, a shotgun rack, a spotlight,rear amber lights, antennae on the roof and trunk,and reinforced bumpers. All three vehicles wereoutfitted with mace and with radios that allowed thedrivers to communicate with each other.

At approximately four p.m., Respondents ceasedtheir activities for the day and headed to a farmwhere CBR had permission to park the vehicles forthe night. When Harrington reached the farm’sdriveway, he became concerned that the truckswould not fit down it. Harrington and Patch stoppedtheir trucks near the top of a hill on Pennroyal Road,and Henkel stopped behind them in the escortvehicle. Six to eight cars backed up behind Henkel.To investigate whether the trucks would be able tonavigate the driveway, Henkel drove the escort

3vehicle across a double yellow line to get around thetrucks. The cars that were backed up behind Henkelalso began to drive around the trucks. After Henkelgave the all clear, Harrington drove into thedriveway and Patch began to follow him in thesecond truck.

A City of Springboro police officer was drivingdown Pennroyal Road when he observed the trafficproblems caused by the CBR vehicles. Accordingly,the officer decided to stop Patch’s truck as it pulledinto the driveway. As the officer approached thetruck on foot, he observed Patch wearing body armorand a kevlar helmet. He also noticed Patch watchingthe officer closely in the side view mirror, and heardPatch repeat into his radio that "the police areapproaching me." The officer asked Patch a fewquestions, during which time Patch "look[ed] arounda lot," hesitated, and perspired heavily. In responseto the officer’s questions, Patch said he wascampaigning against abortion and indicated thepictures on the side of the truck. Fearing for hissafety in light of Patch’s body armor, helmet, and"extremely nervous" and unusual behavior, theofficer retreated to his vehicle and pulled into nearbyDeer Creek Trail. Pet.App.5a-6a; J.A.258-61. Patchcontinued down the driveway to a point whereHarrington had stopped because of low-hangingbranches.

Once at Deer Creek Trail, the Springboro officercontacted his superiors. Two other Springboroofficers arrived at Deer Creek Trail shortlythereafter, and one of them, Tim Parker, calledSteven Morris, Supervisory Special Agent in the

4FBI’s Dayton Office, to ask whether there were anyFBI or other federal SWAT operations happening inthe area. Parker described the encounter with Patchand also mentioned his concern that a doctor lived inthe area. Morris confirmed that no federal exerciseswere taking place and, concerned about possible"domestic terrorism," stated that he would "grab acouple of guys and.., come by and.., find out whothese people were or what they were doing."Pet.App.7a.

In taking this action, Agent Morris was actingwell within his authority. The FBI has responsibilityfor matters involving possible domestic terrorism.See 28 C.F.R. § 0.85(]); 18 U.S.C. § 2331(5); see aIsoAttorney General’s Guidelines on General Crimes,Racketeering Enterprise and DomesticSecurity/Terrorism Investigations, Part III.B (Mar.21, 1989), avai]ab]e at http:www.usdoj.gov/ag/readingroom/generalcrimea.htm. For this reason,the FBI has investigative expertise in domesticterrorism that cannot be matched by local policeofficers - after all, a domestic terrorism investigationrequires background knowledge and a generalapproach and mode of questioning very differentfrom that required for a routine stop. Localauthorities have no jurisdiction or experience indetermining whether suspects may have committeda federal crime.

In addition, Agent Morris was aware, based onFBI intelligence reports, that anti-abortion groupssometimes employ violent tactics in violation offederal law, see 18 U.S.C. § 248 (1994 FACE Act),and knew that a doctor who performed abortions had

5recently been assassinated in his home.1 Morris wasalso aware of other domestic terrorism threats thatthe FBI was handling in the Dayton area, as well aslarger terrorism concerns sparked by 9/11, which hadhappened only months earlier, and by the OklahomaCity bombing. Pet.App.55a-56a; 84a-85a; J.A.355-56,361. In light of all of this, Respondents’ actionsraised very serious concerns:

The fact that people are driving around in paneltrucks similar to the size that was used in theOklahoma City bombing, this occurred shortlyafter 9/11. We have a number of domesticterrorist individuals and groups in the area. Sothe concern is, is why do you have helmets andKevlar vest, why do you have a police vehicle orpolice-looking vehicle, what is the purpose of thisthat was what our concern is ....[I]t was apublic safety concern.

Pet.App.14a.

Agent Morris headed directly to the scene fromCincinnati. En route, he contacted his office inDayton and asked FBI Special Agents Tim Shaw,Tim Burkey, Robert Buzzard, and James Howley tomeet him at the scene. Agent Morris specifically

1 Dr. Barnett Slepian was murdered on October 24, 1998, whilestanding in the kitchen of his home. David Staba, Li£e Term/’orKiller o£ Buffslo-Area Abortion Provider, N.Y. Times, June 20,2007, at B7. Earlier in 1998, Erie Rudolph bombed an abortionclinic in Birmingham, killing an off-duty police officer whoworked as a clinic security guard. Mr. Rudolph was alsoresponsible for the 1996 Centennial Olympic Park bombing.Shaila Dewan, Victims Have Say as Birmingham Bomber isSentenced, N.Y. Times, July 19, 2005, at A14.

6requested Agent Burkey because "of his expertise orhis knowledge of the [FBI’s] Domestic TerrorismProgram." The other agents had "generalinvestigative expertise." J.A.353-54. While AgentMorris was on his way, several additional local policeofficers arrived at Deer Creek Trail.

Meanwhile, Respondents had covered up thepictures on the trucks with tarps and had identifieda local church parking lot where they could leave thetrucks overnight. Harrington and Patch left thefarm in the two box trucks and headed toward thechurch. When local law enforcement officers at DeerCreek Trail realized that Respondents weredeparting, the officers moved to intercept them.Before Henkel could exit the farm’s driveway in theescort vehicle, several police cars blocked his way.

FBI Agent Morris arrived at the farm just as locallaw enforcement officers were pulling in to stopHenkel. Meanwhile, several other local police carsfollowed the two box trucks and stopped them onnearby Queensgate Road. The two investigativestops - of the escort vehicle just off Pennroyal Roadand of the trucks on Queensgate Road - occurredsometime after 5:00 p.m.

Pennroyal Investigative Stop. After stopping theescort vehicle, local police questioned Henkel andchecked his driver’s license and vehicle registration.They also questioned Ron Bowling, a CBR volunteerwho had met Respondents at the farm. Finally, afterobtaining permission from the farm’s owners, localofficers searched the outbuildings of the farm to

7determine whether Respondents had hiddenanything there.

Once the local police had completed theirstandard inquiries, they waited for the FBI agents toarrive from Dayton and conduct an investigation intopossible domestic terrorism. Meanwhile, AgentMorris also waited at the scene for the arrival of thefour FBI agents he had summoned. Those agentsleft the Dayton area promptly, but had to travel adistance to reach the scene, and rush hour trafficfurther delayed their arrival. Pet.App. 17a, 91a.

When FBI Agents Shaw, Buzzard, Burkey andHowley reached Pennroyal Road, Agent Morrisbriefed them on what had occurred and directedBurkey and Buzzard to interview Henkel and to askhis consent to search the escort vehicle. Henkeleventually gave consent and the FBI interviewedhim and conducted the search, finding Kevlarhelmets and vests, among other items. J.A.214;J.A.245. Agent Morris also directed Agent Burkey tointerview Ron Bowling, and sent Agent Shaw to theQueensgate Road location to carry out the FBIinvestigation there.

Queensgate Investigative Stop. No FBI agentswere present when local police officers stoppedHarrington and Patch on Queensgate Road, andAgent Shaw did not arrive until approximately thirtyminutes before Harrington and Patch were allowedto depart in their trucks. The local officersconducted driver’s license and registration cheeks,interviews, and, by consent, a search of the trucks.

8Local officers also photographed the pictures on thesides of the trucks.

During the local police investigation, Harringtonand Patch were "very evasive" when asked whetherthey had any body armor or kevlar helmets. Theydenied having any such gear, even though a localofficer had earlier observed Patch wearing it. Patchwas "agitated and nervous . . . sweating, shaking,very aloof in his answers, [and] somewhat hostile."When asked if he had weapons, Patch said he had aknife and reached down to open his fanny pack. Thelocal officers had to instruct Patch several times tokeep his hands away from the fanny pack. Theofficers searched the fanny pack with Patch’s consentand found a pocket knife and pepper spray. J.A.508;J.A.268. Once the local police finished their initialinvestigation, which took approximately thirtyminutes, they waited for the FBI to arrive.

When Agent Shaw got to the Queensgate location,he spoke to the local police about what they hadIearned so far. Agent Shaw did not know, did notinquire, and was not told how long the stop hadlasted to that point. J.A.485. Agent Shaw nextsought to interview Harrington, who was visiblyupset and very uncooperative. Concerned that thesituation might get out of hand, Agent Shaw usheredHarrington between the two trucks and tried to calmhim down. Harrington made a cell phone call to hisattorney, Mr. Cunningham, who is CBR’s founder.Harrington then handed the phone to Agent Shaw,who proceeded to discuss withCunninghamRespondents’ suspicious behavior.Cunninghamexplained that CBR uses tactical gear to protect its

9volunteers from snipers and other violence. After thephone call, Harrington became very cooperative,providing documentation for the vehicles, displayingthe body armor and helmets and explaining theirpurpose, and allowing Agent Shaw to check thetrucks for weapons.2 J.A.484-88.

Conclusion of the Investigative Stops. AgentShaw’s conversations with Cunningham andHarrington, along with the FBI’s other investigativeactivities, resolved the FBI’s suspicions of possibledomestic terrorism. At approximately eight p.m.,roughly thirty minutes after the FBI investigationbegan, Respondents were allowed to leavetheQueensgate and Pennroyal Road locations.Toensure that Respondents did not encounteranyfurther difficulties, Agent Shaw asked a local policeofficer to escort them to the church parking lot.

According to Respondents, the whole incident -including all of the actions taken by the local officers,the time spent waiting for the FBI agents to get tothe scene, and the FBI’s own brief investigation -lasted approximately three hours. At no time wereRespondents physically restrained or handcuffed.Respondents claim that as a result of this incidentthey will no longer conduct their activities in thearea of the stop. Pet.App.14a, 44a.

2 Harrington claims that during this time, "one of the plainclothes men" who arrived with Agent Shaw had a conversationwith Harrington "about these pictures and how [CBR]should.., get [its] message out a different way." J.A.294.Harrington did not know if the plain clothes man was with theFBI, J.A.295, and Shaw testified that he had no suchconversation with Harrington, J.A.487.

10B. Proceedings Below.

Respondents brought suit under Bivens y. SixUnknown Named Agents of Federal Bureau ofNarcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983,asserting violations of their First and FourthAmendment rights against FBI Agents Morris andShaw and numerous Springboro and ClearcreekTownship law enforcement officers, in theirindividual capacities. See 28 U.S.C. § 1331. Afterdiscovery, Petitioners Morris and Shaw and theother defendants filed motions for summaryjudgment asserting qualified immunity.

1. Chief Magistrate Judge’~ Recommendation.On August 7, 2005, Judge Merz, the ChiefMagistrate Judge in the Southern District of Ohio,recommended that summary judgment be granted toPetitioners and the other defendants on theirqualified immunity defense. Pet.App.94a.

In addressing Respondents’ First Amendmentretaliation claims, Judge Merz followed the order ofanalysis set forth in Saucier v. Katz, 533 U.S. 194(2001), and considered first whether the facts, whenviewed in the light most favorable to Respondents,made out a constitutional violation. Pet.App.81a-86a. He held that to establish their claimsRespondents had to show that (1) they were engagedin protected speech; (2) an adverse action was takenagainst them that would deter a person of ordinaryfirmness from continuing to engage in that protectedactivity; and (3) the adverse action was motivated inpart by the protected speech. Pet.App.82a.

11Judge Merz concluded that under this test, "[t]he

record developed in discovery plainly refutes[Respondents’] First Amendment claims."Pet.App.83a. He explained that the law enforcementofficers were aware not only that Respondents wereengaged in anti-abortion activities, but also thatPatch was wearing full body armor and a Kevlarhelmet; that Patch and those with him wereequipped with a two-way radio and were concernedthat the police were approaching them; and that thebox trucks were accompanied by a car equipped tolook like a police cruiser. Judge Merz further notedthat FBI Agent Morris knew that abortion opponentssometimes attempt to threaten or intimidate doctorswho perform abortions; that such doctors have beenassassinated by abortion opponents; that a doctorlived in the vicinity of the stop; and that no lawenforcement agencies were conducting area trainingoperations that could explain Respondents’ use ofcombat gear. Pet.App.83a-84a.

The Magistrate Judge concluded that AgentMorris, acting just nine months after the 9/11attacks, "did the prudent thing: he determined toconduct an immediate F.B.I. investigation withseveral agents, including the Dayton Office’sDomestic Terrorism specialist." Pet.App.84a-85a.Because Judge Merz concluded that Respondentshad not shown a connection between their protectedactivity and the law enforcement actions, he did notproceed to the second step of the qualified immunityanalysis: whether Respondents’ First Amendmentright against retaliation was clearly establishedunder the circumstances. Pet.App.86a.

12Turning to Respondents’ Fourth Amendment

unlawful seizure claim, the Magistrate Judgerejected the argument that the detention ripenedinto an unlawful arrest once local officials completedtheir initial inquiries: "[a]lthough local lawenforcement officers were prudent to check whetherthere were any warrants, weapons, or contraband,the real reason [Respondents] were detained afterthe initial stop was so that the F.B.I. couldinvestigate" any possibility of "domestic terrorism."Pet.App.90a-91a. Noting Respondent’s admissionthat they were released within twenty to twenty-fiveminutes of the arrival of the FBI agents at theQueensgate location, the Magistrate Judge found "noevidence that the F.B.I. agents were dilatory inconducting their investigation," and stated that"[t]he reason for the delay is that it took [the FBIagents] considerable time to arrive." Pet.App.91a.

The Magistrate Judge concluded that thedetention was reasonable because it lasted "only solong as it took the appropriate investigating agency,the F.B.I., to arrive on the scene and conduct a 20 to25 minute investigation." Pet.App.92a. TheMagistrate Judge further concluded that even ifRespondents had made out a Fourth Amendmentviolation, the unlawfulness of the defendants’ actionswas not clearly established. Noting "how muchdeference the Supreme Court is prepared to give tonecessary police investigations," the MagistrateJudge held that "[i]n light of the fact that theSupreme Court has placed no outside time limit on aTerry stop, it cannot be said that it was clearly

13established on June 10, 2002, that this detention wasunreasonable." Pet.App.93a.

2. District Court’~ Grant of Summary Judgment.On December 30, 2005, Judge Thomas M. Roseadopted the Magistrate Judge’s report andrecommendations and granted summary judgment toPetitioners and the other defendants on the issue ofqualified immunity. With respect to Respondents’First Amendment retaliation claim, the district courtfound "no evidence that any adverse action wasmotivated by the exercise of constitutional rights."Pet.App.58a-59a. The court further held "as amatter of law that, when stopped for a trafficviolation, and found to be in possession of policeequipment, radio equipment, body armor and Kevlarhelmets, a three hour detention would not chill aperson of ordinary firmness from continuing . . . inthe public debate on one of the most contentiousissues in society today." In addition, the courtconcluded that even if Respondents had made out aconstitutional violation, the law was not clearlyestablished that the various law enforcementofficers, in deciding whether to investigate, wereprohibited from taking into account prior violent actsby abortion opponents. Pet.App.59a-60a.

Moving on to Respondents’ Fourth Amendmentclaim, the district court held that the detention ofRespondents was within the permissible scope of aTerry stop under the circumstances, which includedRespondents’ activity resembling the impersonationof a police officer, Respondents’ use of body armorand Kevlar helmets, and law enforcement’ssuspicions of domestic terrorism based in part on the

14knowledge that a doctor lived in the vicinity of thestop. The court also held that it was not clearlyestablished on June 10, 2002, that the detention wasunreasonable in length. Pet.App.62a.

3. Sixth Cireuit’~ Denial ol° Qualified Immunity.On February 20, 2007, the Sixth Circuit reversed thedistrict court’s grant of summary judgment, agreeingwith Respondents that the various law enforcementofficers were not entitled to qualified immunity.Pet.App.la-2a. At no point in its analysis did theSixth Circuit specifically address the alleged actionsof Petitioners and whether those actions amounted toa constitutional violation. Indeed, not only did thecourt fail to analyze separately the actions taken byFBI Agents Morris and Shaw, but it also repeatedlylumped together the FBI agents and the local officerswithout considering the differences in theirknowledge and behavior.

The court held that "summary judgment wasinappropriate" on Respondents’ First Amendmentretaliation claim because the law enforcementofficers’ "retaliatory intent proves dispositive of[their] claim to qualified immunity." Pet.App.30a.The court did not find that Petitioners or any of thedefendants in fact retaliated, but instead concludedthat "we cannot definitively say that Defendantsstopped and detained Plaintiffs without regard totheir protected expression." Pet.App.26a. In thecourt’s view, this constituted a factual dispute thatprecluded a ruling for defendants under either of thetwo steps in the Saucier qualified immunity analysis.Pet.App.25a-28a, 30a-31a.

15The court also stated that, under the first step of

Saucler, "[a] two and one-half hour detention absentprobable cause, accompanied by a search of boththeir vehicles and personal belongings, conducted inview of an ever-growing crowd of on-lookers, wouldundoubtedly deter an average law-abiding citizenfrom similarly expressing controversial views on thestreets of the greater Dayton area." Pet.App.24a-25a.

Turning to Respondents’ Fourth Amendmentclaims, the court held under the first step of Saucierthat "[v]iewing the evidence in the light mostfavorable to Plaintiffs, the otherwise unobjectionableTerry stop ripened into an unconstitutional seizurein light of the undue and unjustifiable length of thestop." Pet.App.34a. Although the "initial seizurewas proper in light of the Defendants’ reasonableand articulable suspicion that criminal activity wasafoot the lengthy detention of Plaintiffs farexceeded the limited purpose of the stop." In thecourt’s view, the public’s "compelling interest indetecting would-be terrorists.., was served whenlocal law enforcement determined Plaintiffs did notpose a threat.’’3 Pet.App.39a-40a. The courtassumed that the FBI conducted "effectively thesame investigation" as "the initial investigationconducted by local law enforcement," despite theFBI’s undisputed responsibility for and expertise ininvestigating terrorism. Pet.App.42a.

3 The court also concluded that the evidence submitted atsummary judgment adequately established that Respondentshad consented to searches of their vehicles and belongings.That ruling is not at issue here. Pet.App.43a-44a.

16Finally, under the second step of Saucier, the

court held that the contours of Respondents’ FourthAmendment rights were sufficiently clear that areasonable officer would understand that "detainingPlaintiffs for over two and a half hours after theydispelled any reasonable suspicion ripened theinvestigatory stop into an arrest absent probablecause." The court conceded that the defendants"confronted novel factual circumstances," butconcluded that "the unlawfulness of [the defendants’]conduct should have been apparent." Pet.App.45a.

REASONS FOR GRANTING THE WRIT

Shortly after 9/11, Agents Morris and Shawinvestigated whether body-armor-clad drivers of boxtrucks operating in suspicious circumstances posed athreat of terrorism. On that basis, the Sixth Circuitheld that they must stand trial in their personalcapacities, and face personal monetary liability, foralleged violations of Respondents’ First and FourthAmendment rights. The court of appeals’ approachto the important qualified immunity questionspresented here conflicts with the precedents of thisCourt and with decisions of other Circuits, and willsignificantly hamper the ability of federal agents inthe Sixth Circuit to investigate and combat terrorismand other crimes.

First, the Sixth Circuit treated a factual disputeabout the FBI agents’ motive as dispositive of theirqualified immunity defense to Respondents’ FirstAmendment retaliation claim. In doing so, the courtessentially abdicated the duty to examine whether itwas clearly established that the agents’ actions

17violated the Constitution regardless of whether theyin fact possessed a malign motive. The Sixth Circuitfailed to determine whether it was clearlyestablished that the actions of Agents Shaw andMorris - as distinct from the actions of the manylocal officers on the scene - would chill a person ofordinary firmness from engaging in further speech.This approach runs afoul of this Court’s precedentsin a variety of ways, and seriously undercuts thebasic purpose of qualified immunity - to ensure thatgovernment actors carrying out crucial tasks such asinvestigation of terrorism are not deterred by fear ofsuit from vigorous pursuit of their duties.

Second, in assessing whether Respondents hadmade out a First Amendment claim at all, the SixthCircuit looked only to whether an "average law-abiding citizen" would be chilled by the agents’actions. In contrast, the Second and Fourth Circuitsconduct a more specific inquiry, asking whether aperson of ordinary firmness "similarly situated" tothe plaintiff would be chilled. In this case, thedifference between the two standards may beoutcome-determinative - a person similarly situatedto Respondents, who chose to engage in a highlycontroversial activity that they knew ran the risk ofbodily injury or death, would hardly be chilled byeven a lengthy Terry stop. This Court should resolvethe split and clarify which version of the standardthe lower courts should employ.

Third, the Sixth Circuit brought itself into conflictwith this Court’s precedents in holding that AgentsMorris and Shaw violated clearly established FourthAmendment law. Again, the court failed to analyze

18the specific actions taken by the agents, and alsofailed to consider the asserted constitutional right atthe appropriate degree of specificity. Had it done so,the court could not have concluded that at the time ofthe stop reasonable agents would have known thattheir diligent investigation violated Respondents’Fourth Amendment rights.

Under the undisputed facts presented here, thisCourt should grant summary reversal, or in thealternative should grant review to protect thegovernment’s ability to investigate terrorism andother serious crimes, and to clarify that governmentofficials alleged to have acted with retaliatory intentare entitled to a complete and particularizedqualified immunity analysis.

I. The Sixth Circuit’s Decision Conflicts With ThisCourt’s Precedents and The Decisions of OtherCircuits In Treating Allegations of A Motive toRetaliate Against Protected Speech AsDispositive of the Issue of Qualified Immunity.

a. Framework £or quali£1ed immunity analysis inmotive eases. As this Court has previouslyrecognized, constitutional tort claims in whichofficial motive is an essential element present aspecial problem in qualified immunity analysis, andit is dangerous indeed to make motive the dispositivefactor. ~ee Harlow v. Fitzgerald, 457 U.S. 800, 816-17 (1982); Crawford-E1 v. Britton, 523 U.S. 574, 585(1998). A malign motive is "easy to allege and hardto disprove." Crawford-E1, 523 U.S. at 585; see alsoTenney v. Brandhove, 341 U.S. 367, 378 (1951) ("Intimes of political passion, dishonest or vindictive

19motives are readily attributed . . . and as readilybelieved."). That principal is well illustrated by thiscase, in which the Sixth Circuit, analyzing whetherthe plaintiffs’ First Amendment retaliation claimcould survive summary judgment, found sufficientthe thinnest possible motive evidence - essentially,nothing more than evidence that the FBI Agentswere aware of the existence and nature of the speechin question. Pet.App.26a-27a (stating that a localofficer "mentioned the pictures on the trucks" toMorris, and noting that "claims involving proof of adefendant’s intent seldom lend themselves tosummary disposition" (internal quotation marksomitted)).4 Thus, to the extent that motive is thefocus of the analysis, any person that was engaged inexpressive activity at the time of an encounter withgovernment agents can not only readily allege aconstitutional tort claim, but can subject the agentsto the rigors of a trial and to possible personalmonetary liability. See Har]ow, 457 U.S. at 816-17;Mitchell v. For~yth, 472 U.S. 511, 526 (1985) (notingthat qualified immunity is "effectively lost if a ease iserroneously permitted to go to trial").

4 In addition, while the Sixth Circuit accepted that public safety

concerns - as opposed to a retaliatory motive - reasonablyaccounted for the stop of the CBR trucks and escort vehiclegiven the odd behavior and unusual military’style gear ofRespondents, it discounted the possibility that such concernscould account for the length of the stop. In so doing, the SixthCircuit ignored the undisputed evidence about the amount oftime it took the FBI investigators - acting diligently - to arriveon the scene, and the brief nature of the FBI investigationitself, which employed the FBI’s special expertise in domesticterrorism. Pet.App.74a, 91a.

20This possibility presents a special threat to the

government’s ability to investigate and preventterrorism. By definition, terrorism is violencecommitted in furtherance of political or otherideological goals, and terrorism investigations willtherefore often involve scrutiny of people advocatinga particular political viewpoint. Under suchcircumstances, and despite the current climate ofthreat, if FBI agents and other government officersare too readily open to suit on the ground that theiralleged concern for public safety is nothing morethan a pretext for retaliating against expression of acontroversial viewpoint, then those officers may bedeterred from acting with sufficient vigor. That kindof deterrence is precisely what the qualifiedimmunity doctrine is intended to prevent. See, e.g.,Har]ow, 457 U.S. at 814 (explaining the danger thatfear of suit will "dampen the ardor of all but the mostresolute, or the most irresponsible [public officials],in the unflinching discharge of their duties" (internalquotation marks omitted; alteration in original)); seealso Anderson v. Creighton, 483 U.S. 635, 638-46(1987). And although qualified immunity serves animportant role in ensuring vigorous investigation ofall types of crimes, this Court has recognized thatwhere the nation’s security is at risk it is especiallyimportant to prevent government actors from"err[ing] always on the side of caution." Davis v.Seherer, 468 U.S. 183, 196 (1984); see Hunter v.Bryant, 502 U.S. 224, 229 (1991).

For these reasons, this Court has been careful toexplain that an allegation of retaliatory motive is notdispositive of the qualified immunity analysis. That

21analysis entails a two-part inquiry. First, a courtmust consider whether "[t]aken in the light mostfavorable to the party asserting the injury, . . . thefacts alleged show the officer’s conduct violated aconstitutional right." Saucier, 533 U.S. at 201. If so,"the next sequential step is to ask whether the rightwas clearly established. This inquiry, it is vital tonote, must be undertaken in light of the specificcontext of the case, not as a broad generalproposition .... " Id. That is because the immunityinquiry is highly concrete and particularized. "Thecontours of the right must be sufficiently clear that areasonable official would understand that what he isdoing violates that right." Anderson, 483 U.S. at640; ~ee a]~o Bro~eau v. Haugen, 543 U.S. 194, 198(2004).

In Crawford-El, this Court made clear that thissecond, "more particularized, and hence morerelevant" step of the inquiry, Anderson, 583 U.S. at640, fully applies to cases in which the assertedconstitutional violation turns on the official’s motive.Craw£ord-E], 523 U.S. at 592. Thus, even wherethere have been sufficient allegations of bad intent tomake out the motive element of the claim, it is vitalto ask whether it should have been clear to areasonable officer under the circumstances that hisconduct met every element of the claim, includingthe more objective elements. See id. After all, "evenwhen the official conduct is motivated, in part, byhostility to the plaintiff," it is "unfair~" to "impos[e]liability on a defendant who could not . . . fairly besaid to know that the law forbade" his actions. Id. at591 (internal quotation marks omitted). Accordingly,

22"the substantive legal doctrine on which the plaintiffrelies may facilitate summary judgment" because anexamination of the non-motive elements of the claimmay reveal "doubt as to the illegality of thedefendant’s particular conduct." !d. at 592-93; seealso, e.g., Hartman v. Moore, 547 U.S. 250, 259-66(2006).

b. Sixth Circuit’s decision violates theseprinciples. The Sixth Circuit’s decision here flies inthe face of these principles. The Sixth Circuit statedthat in order to establish a retaliation claim aplaintiff would have to show not only retaliatorymotive and causation, but also that "defendant’saction injured plaintiff in a way likely [to] chill aperson of ordinary firmness from furtherparticipation in that activity." Pet.App.22a. But itthen took the view that "retaliatory intent provesdispositive of Defendants’ claim to qualifiedimmunity," simply because there was a dispute offact as to motive. Pet.App.30a-31a (emphasisadded). The court did not consider whether at thetime of the incident in question it was clearlyestablished that a person of ordinary firmness wouldbe chilled by what Agents Morris and Shawindividually did. See Crawford-El, 523 U.S. at 593"94; see generally Anderson, 483 U.S. at 641; see alsoPet.App.47a n.16. To the extent the Sixth Circuitconsidered the "chill" issue at all, it seems to haveconsidered only whether the plaintiffs had allegedthe violation of a constitutional right (the first stepin the qualified immunity analysis). Pet.App.24a-25a. Other than that, the court decided in the mostgeneral possible terms that "government actions may

23not retaliate against an individual for the exercise ofprotected First Amendment freedoms." Pet.App.30a.

This approach is deeply flawed - in conflict withthis Court’s precedents - in a number of differentways. First, it breaks Craw£ord-EIs promise thatqualified immunity can protect government actorseven in cases involving allegations of bad motive. Incontrast to other Circuits that have consideredsimilar questions, the Sixth Circuit utterly failed toconsider whether the objective "chill" element of theclaim was clearly established - a question that isfully subject to resolution at the summary judgmentstage, See, e.g., Perez v. Ellington, 421 F.3d 1128,1132 (10th Cir. 2005)(in assessing qualifiedimmunity with respectto a retaliation claim,analyzing whether theconduct alleged "is soegregious that an officialwould be on clear noticethat his actions would deter the ordinary personfrom continuing" in the protected activity). Byconflating the question of qualified immunity withthe question of substantive motive, the Sixth Circuiteffectively required qualified immunity in motivecases to be resolved at trial in every instance, eventhough "[i]mmunity ordinarily should be decided bythe court long before trial." Hunter v. Bryant, 502U.S. 224, 228 (1991) (per curiam).

Second, the Sixth Circuit’s decision violates thecommand of Saucier v. Katz, 533 U.S. 194 (2001),which holds that "the second step" of the qualifiedimmunity analysis, asking whether the law is clearlyestablished, cannot be collapsed into the first stepjust because "a constitutional violation could befound based on the allegations." Id. at 200-09. The

24Sixth Circuit’s decision collapses the two halves ofthe inquiry in just this way, treating its substantive"chill" analysis under the first step of Saucier asdefinitive of the whole inquiry. The court thus failedto accord Agents Morris and Shaw the fullprotections of this Court’s precedents, which dictatequalified immunity for those who make reasonablemistakes - indeed, for "all but the plainlyincompetent or those who knowingly violate the law."Malley v. Briggs, 475 U.S. 335, 341 (1986).

Finally, the Sixth Circuit failed to conduct theparticularized inquiry that this Court’s precedentsdemand. Because it did not properly analyze theobjective elements of the claim under the second stepof Saucier, the Sixth Circuit did not address thespecific conduct of Agents Morris and Shaw ordetermine whether the summary judgment evidenceestablished that they individually acted in anobjectively unreasonable manner, in violation of theplaintiffs’ First Amendment rights, so as to chill aperson of ordinary firmness. In failing to separatelyconsider the actions of Agent Morris and the actionsof Agent Shaw, and in lumping both agents togetherwith the various local officers also sued by CBR, seePet.App.28a-31a (treating all "Defendants" in anundifferentiated fashion), the Sixth Circuit ran afoulof this Court’s dictates. See Anderson, 483 U.S. at640 (officials are immune unless a "reasonableofficial would understand that what he is doingviolates that right"); Crawford-El, 523 U.S. at 600(among the "issues that bear upon the qualifiedimmunity defense" are "the actions that the officialactually took"). The Sixth Circuit also parted ways

25with its sister circuits, which have stronglyemphasized the importance of examining the specificfactual allegations made against each individualdefendant.5

c. ~ummary reversal, or grant of certiorari, iswarranted. Given the Sixth Circuit’s departure frombedrock qualified immunity principles, summaryreversal is appropriate here. Faced with reports ofmen wearing kevlar helmets and flak vests anddriving box trucks and a £aux police vehicle, AgentsMorris and Shaw can hardly be faulted forconcluding that the FBI should take a hands-onapproach. On the undisputed facts, it would nothave been clear to a reasonable FBI agent -regardless of his motive - that "his conduct wasunlawful in the situation he confronted." Saucier,533 U.S. at 202. This is because it would not havebeen clear that the FBI portion of the inveBtigation,which involved getting to the scene and less than an

5 See, e.g., Poe v. Leonard, 282 F.3d 123, 134 (2d Cir. 2002)

("The qualified immunity analysis depends upon anindividualized determination of the misconduct alleged ....[B]oth the subordinate’s and the supervisor’s actions (or lackthereof) are relevant."); Rouse v. Plantier, 182 F.3d 192, 200 (3dCir. 1999) ("the determination of whether a government officialhas acted in an objectively reasonable manner demands ahighly individualized inquiry"); Truloek v. Freeh, 275 F.3d 391,401-02 (4th Cir. 2001); Bakalis v. Golembeski, 35 F.3d 318, 326-27 (7th Cir. 1994); Cunningham v. Gates, 229 F.3d 1271,1287 (9th Cir. 2000) ("in resolving a motion for summaryjudgment based on qualified immunity, a court must carefullyexamine the specific factual allegations against each individualdefendant"); Footev. Spiegel, 118 F.3d 1416, 1423 (10th Cir.1997); Waldrop v. Evans, 871 F.2d 1030, 1034 (11th Cir. 1989).

26hour-long inquiry, would chill a person of ordinaryfirmness from continuing in the activities in whichCBR regularly engaged.~ ld. at 206 ("Qualifiedimmunity operates . . . to protect officers from thesometimes ’hazy border’ .... "); see a]so Eaton v.Mene]oy, 379 F.3d 949, 956 (10th Cir. 2004) (holdingthat "the objective standard of a person of ordinaryfirmness is a vigorous standard").

It is notable that the District Judge reached thisvery conclusion. Pet.App.59a. As this Court haspreviously noted, where even judges disagree as tothe propriety of the actions of agents in the field, itcan hardly be said that a reasonable agent shouldhave known that he was taking unconstitutionalaction. An FBI agent cannot be expected to do betterin ascertaining the law than a federal judge. See,e.g., Wilson v. Layne, 526 U.S. 603, 618 (1999) ("Ifjudges thus disagree on a constitutional question, itis unfair to subject police to money damages forpicking the losing side of the controversy."); Mitchell,472 U.S. at 533; Malley, 475 U.S. at 341.

Given the undisputed facts and the districtcourt’s own resolution of the question of whether theagents’ conduct would have a chilling effect,Crawford-El’s test for immunity - whether there is"doubt as to the illegality of the defendant’sparticular conduct," 523 U.S. at 593 - is plainly methere. This Court should not allow a decision that soundercuts "the substance of the qualified immunitydefense," id. at 597, to stand. See, e.g., Los Angoles

6 This is true regardless of the level of specificity with which a

"person of ordinary firmness" is defined. ~qee infra pp. 28-31.

27~o~nty ~. Rettele, 127 S. Ct. 1989 (2007) (percuriam) (summarily reversing erroneous immunitydecision); Bro~seau v. Haugen, 543 U.S. 194 (2004)(per curiam) (same); Hunter v. Bryant, 502 U.S. 224(1991) (per curiam) (same).

But even if this Court is not inclined tosummarily reverse the Sixth Circuit, it should grantreview to clarify this area of the law. Motive casesarise frequently in the qualified immunity context,and the consequences of failing to deal with them asthis Court’s precedents demand can be devastating-not only for individual agents subject to personalmonetary liability, ~ee Siegert v. Gilley, 500 U.S.226, 232 (1991), but also for government agenciescharged with carrying out crucially important duties,and ultimately for the public. The Sixth Circuit’sdecision discourages cooperation between local andfederal authorities, aad decreases the chances thatthe FBI’s unique counter-terrorism and otherexpertise will be called into play in appropriatecircumstances, particularly where the scene of theincident is difficult for the FBI to reach quickly. Thedecision also discourages law enforcement fromtaking the time necessary to investigate thoroughly,or indeed from acting at all in the face of expressiveactivity by a person of interest. In short, the decisionhas a serious practical impact on important publicsafety concerns in the Sixth Circuit.

28II. The Sixth Circuit’s Ruling Conflicts With The

Decisions of Other Circuits Regarding theStandard for Assessing Whether AllegedGovernment Conduct Would Chill a Person ofOrdinary Firmness from Speaking Freely.

As discussed above, the Sixth Circuit committedserious error in failing to evaluate the objectiveelements of the First Amendment retaliation claimunder the second step of Saucier. The court’sdecision, however, also raises an important questionunder the first step of Saucier- whether theplaintiffs made out a First Amendment claim at all.See Saucier, 533 U.S. at 201.

In this and other cases, the Sixth Circuit asks,under the first Saucier step, whether an "averagelaw-abiding citizen" would be chilled by the allegedgovernment conduct. E.g., Pet.App.25a; see also Seev. City of Elyria, 502 F.3d 484, 492 (6th Cir. 2007).7

The Tenth Circuit similarly asks whether an"ordinary person" would be chilled. E.g~., Perez, 421F.3d at 1132; Smith y. Plat~: 258 F.3d 1167, 1177(10th Cir. 2001). This approach analyzes the "chill"issue at a high level of abstraction. By contrast, theSecond and Fourth Circuits ask whether "a similarlysltuated person of ordinary firmness" would bechilled by the government conduct, and thus engagein a fact-intensive inquiry that takes into accountrelevant circumstances such as employment position,

7 The Sixth Circuit does take into account whether the plaintiff

is a public official or prisoner, but does not consider otherparticular circumstances. See Mattox v. City of Forest Psrk,183 F.3d 515, 522 (6th Cir. 1999); Thaddeus’X v. BIatter, 175F.3d 378, 398 (6th Cir. 1999).

29experience, or conduct, all of which may inform thefirmness that a person would display. E.g.,BIankenship v. Manchin, 471 F.3d 523, 531 (4th Cir.2006); Gil] v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004); see also Suaroz Corp. Indus. v. McGraw, 202F.3d 676, 686 (4th Cir. 2000).

The difference in standards is readily apparentwhen contrasting the Fourth Circuit’s decision inBaltimore Sun Co. y. Ehrlich, 437 F.3d 410 (4th Cir.2006), with the Sixth Circuit’s decision here. InBaltimore Sun, two reporters brought a FirstAmendment retaliation suit against Maryland’sgovernor, alleging that he prohibited executivedepartment employees from speaking with thereporters in retaliation for their previous reporting.In applying the "similarly situated person ofordinary firmness" test, the Fourth Circuitconsidered whether "a reporter of ordinary firmness"would be chilled, and answered in the negative: "liltwould be inconsistent with the journalist’s acceptedrole in the ’rough and tumble’ political arena toaccept that a reporter of ordinary firmness can bechilled by a politician’s refusal to comment or answerquestions on account of the reporter’s previousreporting." Id. at 419 (emphasis added),s

s Similarly, in Bl~nkenzhip v. M~nchin, 471 F.3d 523 (4th Cir.

2006), the chairman of a large coal company brought suitagainst the governor for his alleged threat to take regulatoryactions against the company in retaliation for the chairman’spolitical activities. The Fourth Circuit held that "the person ofordinary firmness we consider should be .... an ordinarily firmowner of a regulated business who has entered the politicalarena." Id. at 531.

3OThe Sixth Circuit took a very different approach

in the case at hand. The court did not ask whether aperson similarly situated to Respondents would bechilled, but asked instead how "an average lawabiding citizen" would react. Pet.App.25a. As aresult, the Court did not take into account that aperson similarly situated to Respondents would besomeone who has willingly entered an extremelycontentious political and moral debate and who haswillingly protested at the acknowledged risk of beingshot or otherwise violently attacked by a member ofthe public. As the district court rightly concluded,such a similarly situated person would not be chilledby the stop at issue in this case: "when stopped for atraffic violation, and found to be in possession ofpolice equipment, radio equipment, body armor andkevlar helmets, a three hour detention would notchill a person of ordinary firmness from continuingin this particular activity, participation in the publicdebate on one of the most contentious issues insociety today." Pet.App.59a. There can be littledoubt that had it employed the Fourth and SecondCircuits’ standard, the Sixth Circuit would havereached a different result.

Review in this Court is needed in order to resolvethe conflict among the Circuits and to ensure "thebalance that [this Court’s] cases strike between theinterests in vindication of citizens’ constitutionalrights and in public officials’ effective performance oftheir duties." A~derBon, 483 U.S. at 639 (internalquotation marks omitted). If the plaintiff is not an"average citizen," then the government actor’sconduct should not be assessed as if that were so.

31Here, some of the characteristics that madeRespondents seem suspicious - the use of kevlarhelmets, vests, and a vehicle resembling a police car- are the very same characteristics that indicate thatsimilarly situated persons would not have beenchilled by the Terry stop. The Sixth Circuit shouldhave taken these circumstances into account in itsanalysis of Respondents’ First Amendmentretaliation claim.

III. The Sixth Circuit’s Ruling Conflicts With TheDecisions of This Court and Other Circuits inHolding that Petitioners Violated ClearlyEstablished Fourth Amendment Law.

Even if the Sixth Circuit was correct in holdingthat Respondents had alleged facts sufficient toconstitute a Fourth Amendment violation, the SixthCircuit simply failed to heed this Court’s precedentsin holding that Petitioners violated clearlyestablished law. The Sixth Circuit failed to considerthe specific circumstances that confronted AgentsMorris and Shaw, and also failed to analyze theFourth Amendment right at a sufficient level ofspecificity. See supra pp. 21, 24-25.

This Court’s qualified immunity precedentsdictate that under the circumstances it was far fromclearly established on June 10, 2002, that the actionsof either Agent Morris or Agent Shaw violated theFourth Amendment. At that time, both this Courtand the Sixth Circuit had expressly declined to placean outside limit on the permissible duration of aTerry stop. See, e.g., United State~ v. Sharpe, 470U.S. 675, 685 (1985) (stating that "our cases impose

32no rigid time limitation on Terry stops"); Houston v.Clark County Sheriff Deputy John Does 1-5, 174F.3d 809, 815 (6th Cir. 1999). In addition, this Courthad made clear that assessing the reasonableness ofa Terry stop requires consideration of "the lawenforcement purposes to be served by the stop aswell as the time reasonably needed to effectuatethose purposes." Sharpe, 470 U.S. at 685; see also id.("we consider it appropriate to examine whether thepolice diligently pursued a means of investigationthat was likely to confirm or dispel their suspicionsquickly"). More specifically, this Court hadrecognized that concerns about terrorist activityaffect the permissible scope of a search or seizureunder the Fourth Amendment. See City ofIndianapolis v. Edmond, 531 U.S. 32, 44 (2000);Florida v. J.L., 529 U.S. 266, 273-74 (2000); c£United States v. Montoya de Hernandoz, 473 U.S.531,537 (1985).

As a matter of qualified immunity law, "when anearlier case expressly leaves open whether a generalrule applies to the particular type of conduct at issue,a very high degree of prior factual particularity maybe necessary" in order for a right to be clearlyestablished. United States v. Lanier, 520 U.S. 259,271 (1997); see also Hopo v. Polzer, 536 U.S. 730,740-41 (2002). No such prior factual particularityexisted to guide Petitioners. No federal court hadruled on the permissible boundaries of a Terry stopin a ease involving similar suspicions of terrorism.This lack of meaningful guidance is particularlyimportant given that Petitioners were acting a merenine months after 9/11, and in the midst of withering

33criticism of federal law enforcement agencies forfailing to uncover the 9/11 plot.

Further, to the extent there was any guidance inthe case law, it indicated that the actions of AgentsMorris and Shaw were wholly permissible. Prior tothe stop of the CBR vehicles, the Sixth Circuit hadupheld a Terry stop of approximately the sameduration where it took a DEA agent a long period oftime to get to the scene and investigate. In Jacksonv. Wren, 893 F.2d 1334, 1990 WL 4051 (6th Cir.1990) (unpublished table decision), the suspect wastransferred to the sheriffs office after an initialsearch, and DEA was contacted and advised to sendan agent to interview him. Although it took twohours for the DEA agent to arrive, the Sixth Circuitupheld the investigative detention as reasonable. Id.at *2; see also United States v. Winfrey, 915 F.2d212, 217 (6th Cir. 1990) ("The sheriffs deputies werenot trained as drug agents and needed the DEAagents’ expertise to confirm or dispel theirsuspicions."); United States v. Borrero, 770 F. Supp.1178, 1190 (E.D. Mich. 1991) (relying on Wren inupholding a 70-minute detention at a DEA office); 20U.S. Op. Off. Legal Counsel 26, 1996 WL 33101191(Feb. 5, 1996).9

9 More generally, the Sixth Circuit had repeatedly held that theproper focus in assessing the reasonableness of a Terry stopshould be on the diligence of the police, not the length of thedetention. See, e.g., United States v. Calderon-Valenzuela, 211F.3d 1270, 2000 WL 571953, at *4 (6th Cir. 2000) (unpublishedtable decision). The Sixth Circuit’s opinion in the instant casecited a handful of cases in support of the view that Petitioners’actions violated clearly established Fourth Amendment rights,

34Given that it was lawful in Wren for a suspect to

be detained for two hours at a sheriffs officeawaiting the arrival of DEA agents, a reasonableofficer in Agent Morris’s or Agent Shaw’s positionwould have believed it lawful for Respondents to beheld at the location of a Terry stop for a similarperiod of time so that FBI agents could arrive andinvestigate suspicions of domestic terrorism. Morriscalled Shaw and the other FBI agents to the sceneshortly after Morris was first contacted by local lawenforcement, and the agents proceeded to the sceneas quickly as possible, in rush hour traffic. Shawhad no knowledge of the overall length of the stop,and played no conceivable role in holdingRespondents prior to his arrival. And, asRespondents concede, the FBI agents completedtheir investigation within twenty to twenty-fiveminutes of its inception. These facts led themagistrate to conclude that "It]here is no evidencethat the F.B.I. agents were dilatory." Pet.App.91a.

In disregarding these facts, the Sixth Circuitimproperly lumped together all of the local andfederal law enforcement officials at the Pennroyaland Queensgate Road locations, on the apparent

see Pet.App.45a-46a, but none of those cases would have placeda reasonable agent in Morris’s or Shaw’s position on adequatenotice here. See United States v. Place, 462 U.S. 696, 709(1983) (officers failed to "diligently pursue their investigation");

United States v. Butler, 223 F.3d 368, 375 (6th Cir. 2000)(officers’ conduct in placing suspect in police car violated FourthAmendment); Unlted States v. Heath, 259 F.3d 522, 530 (6thCir. 2001) ("once these officers used all of the appropriatemeans available to them to allay their concerns of criminalactivity," they were required to release Heath).

35belief that they acted in the same manner, based onthe same information and with the same expertise.Pet.App.39a; 44a-46a. The court further assumedthat all suspicions of criminal activity - includingsuspicions of involvement in domestic terrorism -were dispelled in the first twenty to thirty minutes ofthe Terry stop once local officers had completedlicense and registration checks and initialquestioning of Respondents, but beYore anyinvestigation by the FBI agents, who havejurisdiction over federal criminal inquiries and aretrained to detect terrorists and kept apprised of thelatest threats from terrorist groups. Pet.App.40a,45a-46a. The Sixth Circuit thus engaged in the kindof "unrealistic second guessing" that this Court hascautioned against, ,gl~arpe, 470 U.S. at 686, and ranafoul of decisions of this Court and of its sisterCircuits holding that each individual governmentactor’s behavior must be separately assessed, seesupra pp. 21, 24-25.

In short, the Sixth Circuit’s conclusion thatAgents Morris and Shaw should stand trial in theirpersonal capacities on Respondents’ FourthAmendment claims simply cannot be reconciled withthis Court’s precedents. Had the Sixth Circuitanalyzed the Fourth Amendment right at theappropriate level of specificity, and had it properlyconsidered the individual actions taken by AgentMorris and Agent Shaw, it would necessarily havefound them immune from the Fourth Amendmentclaims against them. This Court should summarilyreverse or, in the alternative, grant certiorari toclarify the rights and duties of federal law

36enforcement officers who enter an ongoinginvestigation by local authorities, and to ensure thatfederal agents have sufficient leeway to adequatelyinvestigate and attempt to prevent domesticterrorism and other serious crimes.

CONCLUSION

The petition for a writ of certiorari should begranted or, alternatively, the judgment of the SixthCircuit should be summarily reversed.

December 18, 2007

Respectfully submitted,

ELAINE J. GOLDENBERGCounsel of Record

SCOTT B. WILKENS

JENNER & BLOCK LLP

601 Thirteenth Street, N.W.Washington, DC 20005(202) 639-6000