DEC 18 ~OOlNo. 07-654

Supreme Ceurt ef the Uniteb State

KENNETH JONES,

Petitioner,

ADAM JENNINGS,

Respondent.

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

For The First Circuit

MOTION TO FILE BRIEF AND BRIEF OF AMICUSCURIAE, THE RHODE ISLAND LEAGUE OF CITIES

AND TOWNS, IN SUPPORT OF PETITIONER

MARC DESISTO, ESQ. (#2757)Counsel of RecordDESISTO LAW211 Angell StreetP.O. Box 2563Providence, RI 02906-2563Phone: (401) 272-4442Fax: (401) 272-9937marc@desistolaw.com

MIA MANZOTTI, ESQ. (#7087)One State Street, Ste. 502Providence, RI 02908-2563Phone: (401) 272-3434Fax: (401) 421-0824mia@rileague.org

COCKLE LAW BRIEF PRINTING CO. (800) 225~6964OR CALL COLLECT (402) 342-2831

Btank pa~e

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MOTION OF THE RHODE ISLANDLEAGUE OF CITIES AND TOWNS FOR

LEAVE TO FILE BRIEF AS AMICUS CURIAEIN SUPPORT OF THE PETITIONER

Pursuant to Rule 37 of the rules of this Court,the Rhode Island League of Cities and Towns (here-inafter "League") respectfully requests leave to filethe accompanying brief as an Amicus Curiae insupport of the Petition of Writ for Certiorari in theabove referenced case.1 The League is an Associationrepresenting thirty-seven of the thirty-nine cities andtowns in Rhode Island. It advocates on behalf of localmunicipalities for executive and administrativeagencies and before the State legislature.

There is good cause for this Court to grant thismotion. As set forth in the Introduction and Interestof Amicus Curiae in the attached Brief, the Leagueacts as an advocate for local law enforcement de-partments. In this matter, the League represents thecollective concern of those Departments regarding theissues addressed in the Amicus Curiae Brief.

1 Petitioner consented to the filing of the attached brief, but

respondent did not.

For these reasons, the Rhode Island League ofCities and Towns respectfully moves for leave to filethe attached Brief as Amicus Curiae.

Respectfully submitted,

MARC DESISTO, ESQ. (#2757)Counsel of RecordDESISTO LAW211 Angell StreetP.O. Box 2563Providence, RI 02906-2563Phone: (401) 272-4442Fax: (401) 272-9937marc@desistolaw.com

M~A MANZOTTI, ESQ. (#7087)One State Street, Ste. 502Providence, RI 02908Phone: (401) 272-3434Fax: (401) 421-0824mia@rileague.org

QUESTIONS PRESENTED FOR REVIEW

Did the Court of Appeals follow the correct stan-dard in determining that the "clearly estab-lished" prong of a qualified immunity analysis ismet by obviousness when one similar holding ex-ists in an outside jurisdiction?

Upon the conclusion of evidence on a renewedRule 50 motion, must the Trial Court rely, inevery circumstance, on the jury for a determina-tion of contested facts necessary for a qualifiedimmunity analysis?

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TABLE OF CONTENTS

Page

io.o111

QUESTIONS PRESENTED FOR REVIEW .........

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

INTRODUCTION AND INTERESTS OF AMICUSCURIAE ...............................................................1

STATEMENT OF THE CASE ................................2

SUMMARY OF THE ARGUMENT .......................3

I. THE FIRST CIRCUIT COURT OF AP-PEALS MISAPPLIED THE STANDARDON THE "CLEARLY ESTABLISHED"PRONG OF THE QUALIFIED IMMU-NITY ANALYSIS WHEN ITDETER-MINED THAT THE CONDUCTOF THEOFFICER WAS "CLEARLYESTAB-LISHED" BECAUSE THEREWAS ASIMILAR HOLDING IN ONECASE INAN OUTSIDE JURISDICTION ..................5

II. THE TRIAL COURT SHOULD HAVEDISCRETION, IN APPROPRIATE CIR-CUMSTANCES, TO DETERMINE CON-TESTED FACTS NECESSARY FOR AQUALIFIED IMMUNITY ANALYSISNOTWITHSTANDING A GENERALJURY VERDICT ..........................................11

III. CONCLUSION .............................................17

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TABLE OF AUTHORITIES

Page

CASES

Brosseau v. Haugen, 543 U.S. 194 (2004) ....................7

City of St. Louis v. Propratnick, 45 U.S. 112(1988) .........................................................................6

Hope v. Pelzer, 536 U.S. 730 (2002) .............................7

Kelley v. LaForce, 288 F.3d 1 (1st Cir. 2002) .............13

Mitchell v. Forsyth, 472 U.S. 511 (1985) ....................17

Morse v. Frederick, 550 U.S. ~, 127 S. Ct.2618 (2007) ..............................................................10

Ringuette v. City of Fall River, 146 F.3d 1 (lstCir. 1998) .................................................................13

Saucier v. Katz, 533 U.S. 194 (2001) ......................7, 10

Smith v. Mattox, 127 F.3d 1416 (llth Cir. 1997) .....3, 8

Scott v. Harris, 550 U.S. __, 127 S. Ct. 1769(2007) ...........................................................15, 16, 17

Wilson v. Layne, 526 U.S. 603 (1999) .......................6, 7

Blank Page

INTRODUCTION ANDINTERESTS OF AMICUS CURIAE

The Rhode Island League of Cities and Towns,since its inception in 1968, has been widely recog-nized as the unified voice of local government inRhode Island.~ The League currently enjoys a mem-bership that includes thirty-seven (37) of RhodeIsland’s thirty-nine (39) cities and towns.

Associations like the Rhode Island League ofCities and Towns (hereinafter "League") exist inforty-nine states. They were originally formed for thepurpose of representing municipal government inter-ests before state legislatures. This role has expandedto include representing municipalities before execu-tive and administrative agencies; advocating onbehalf of local municipal departments, including lawenforcement, public works and planning/zoning;appearing before the courts as amicus on variousmunicipal issues; and providing technical assistance,information sharing and training to assist municipalofficials in fulfilling their responsibilities.

1 The parties were notified ten days prior to the due date ofthe brief of the intention to file. Respondent has not consented tothe filing of this brief, so in accordance with Rule 37(2)(b) amotion prepared as one document with this brief is filed here-with. In accordance with Rule 37.6, amicus state that no counselfor any party has authored this brief in whole or in part. Amicusalso states that the Rhode Island Interlocal Trust is responsiblefor the attorney fees of Marc DeSisto.

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The strength and effectiveness of the League isderived from uniting its member municipalities andmerging their divergent opinions and needs into acohesive expression of municipal views, interests andinitiatives. It follows naturally, then, that the Leaguemembers have come together today, and are united,in their position that local law enforcement depart-ments are in desperate need of a clear and unambi-guous standard against which to measure proscribedpolice officer conduct. Municipalities in Rhode Island,and across the nation, have a vital interest in locallaw enforcement training, and, in that spirit, theLeague strongly urges the Court to grant certiorari inthis case.

STATEMENT OF THE CASE

During his participation in the execution of asearch warrant, Rhode Island State Police Trooper,Kenneth Bell arrested Adam Jennings. (R552).Jennings resisted the arrest and during the course ofthe brief but violent struggle, his ankle was broken.(R338-339). Jennings brought suit, along with others,alleging in part, excessive force in violation of hisFourth Amendment Constitutional Rights.~

2 The suit emanated from a struggle between the RhodeIsland State Police and members of the Narragansett IndianTribe when officers attempted to serve the search warrant toconfiscate cigarettes being sold by the Tribe without compliance

(Continued on following page)

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The District Court allowed the jury to decide theexcessive force claim after denying the motion forJudgment as a Matter of Law (JMOL) made byTrooper Jones on qualified immunity grounds. Thejury returned a verdict for Jennings. (App. 104-105).

On a renewed Rule 50 motion made post-verdict,the Trial Court determined that it was a mistake notto grant the original Motion for Judgment because,upon reflection and notwithstanding the general juryverdict, the plaintiff had failed to provide any evi-dence of excessive force. (App. 79-80). The Trial Courtalso found that the actions of Trooper Jones were nota "clearly established" constitutional violation. (App.85-86).

The First Circuit Court of Appeals reversed theTrial Court’s grant of the JMOL motion and rein-stated the verdict. A divided Court of Appeals foundthat the general jury verdict in favor of Jenningscompelled a finding that excessive force was provedfor the qualified immunity analysis. (App. 21, 43,101). The majority also determined that the Trooper’sconduct was a "clearly established" violation of theFourth Amendment because one case, Smith v.Mattox, 127 F.3d 1416 (llth Cir. 1997), confirmed theobviousness of this fact. (App. 32-34).

with Rhode Island sales tax laws. Two other individuals filedsuit along with Mr. Jennings against eight defendants for avariety of claims.

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SUMMARY OF ARGUMENT

Amicus advocates for Certiorari to be granted sothis Court can address and clarify two issues relatingto the qualified immunity analysis. First, fundamen-tal fairness requires fair warning to law enforcementofficers before they loose the protections affordedthem under qualified immunity. The decision of theFirst Circuit Court of Appeals in the instant mattercreates an unreasonable standard for determining ifproscribed conduct is "clearly established." The Courtof Appeals determined that one similar case, inanother jurisdiction, demonstrated the obviousness ofthe proscribed conduct. This determination places anunfair burden on law enforcement to be aware of, andconform to, any single holding on similar facts in anyjurisdiction.

Amicus urges this Court to clarify the standardfor determining when the "clearly established" prongof the qualified immunity analysis is met. Proscribedconduct, for purposes of qualified immunity, should befound to be "clearly established" when there is a caseon point in the home jurisdiction, or a consensus ofcases nationwide or when it should be obvious to anyreasonable person, without reference to decisionallaw, that the conduct is wrong.

The second issue upon which Certiorari should begranted concerns the manner in which a Trial Courtshould determine facts necessary for a qualifiedimmunity analysis. Amicus urges this Court to holdthat in proper circumstances, the Trial Court is free

to make findings of disputed facts necessary for aqualified immunity analysis without reliance on thejury. In a number of cases, including this one, theFirst Circuit Court of Appeals has sought guidancefrom this Court on whether reliance must be placedon a jury’s general verdict when making post trialdecisions on qualified immunity. In the instant case,the Court of Appeals relied on the general verdict infinding that excessive force was established at trial.Conversely, the Trial Court, found, notwithstandingthe general verdict, that the plaintiff did not proveexcessive force. Amicus urges this Court to grantCertiorari to settle this conflict.

I. THE FIRST CIRCUIT COURT OF APPEALSMISAPPLIED THE STANDARD ON THE"CLEARLY ESTABLISHED" PRONG OFTHE QUALIFIED IMMUNITY ANALYSISWHEN IT DETERMINED THATTHE CON-DUCT OF THE OFFICER WAS"CLEARLYESTABLISHED" BECAUSE THERE WAS ASIMILAR HOLDING IN ONE CASE IN ANOUTSIDE JURISDICTION

There is a great need for a consistent standard tobe applied on the "clearly established" prong of thequalified immunity analysis. Municipalities in RhodeIsland and across the nation have at least a two-foldinterest in sufficiently training local law enforcementdepartments. First, appropriate training promotesthe safety and welfare of citizens and officers alike.Second, municipalities are subject to civil damages

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for the conduct of poorly trained officers who violateindividuals’ constitutional rights. City of St. Louis v.Propratnick, 45 U.S. 112 (1988). Consequently, it isimportant to municipalities that this Court re-establishits well defined criteria for analyzing the "clearlyestablished" standard so that a consistent approachto training can be implemented.

Simply put, Amicus urges this Court to grantcertiorari in this case to answer the question of whenproscribed conduct is "clearly established" such thatit gives fair warning to law enforcement officers andtheir municipal employers who train them. In thecontext of this case, this Court should determinewhether an ordinarily prudent officer, and his or hermunicipal employer, are charged with the obligationof scouring the judicial annals on a national level,and to such a degree, that in any circumstance theofficer will know what is acceptable professionalbehavior.

The First Circuit’s decision in the instant casemandates this heavy burden. Amicus asks this Courtto review this case to re-establish a more reasonableapproach.

In past decisions, this Court has had little diffi-culty in outlining specific criteria for a consistentapplication. In Wilson v. Layne, 526 U.S. 603, 617

(1999), this Court determined that the law on thirdparty entry into homes (accompanying police officersexecuting a valid warrant) was not clearly estab-lished when that conduct occurred in April of 1992.

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The decision was based on the lack of definitive caselaw in two separate categories. First, the petitionerscould not cite to "any cases of controlling authority intheir jurisdiction at the time of the incident whichclearly established the rules on which they seek torely." Id. at 617. Second, the Court noted a lack of "aconsensus of cases of persuasive authority such that areasonable officer could not have believed his actionswere lawful." Id.

Consequently, the Wilson decision guided lawenforcement agencies that a case in their own juris-diction or, alternatively, a number of consistentopinions outside of the jurisdiction, would serve asfair warning. Later, this clear and reasonable ap-proach was expanded in two important respects. ThisCourt formally acknowledged an "obvious" category,such that an officer was expected to know withoutany case law that certain conduct violated the Consti-tution. Hope v. Pelzer, 536 U.S. 730, 739 (2002). Next,this Court defined the meaning of "clearly estab-lished" in a "more particularized and hence morerelevant" sense, laying to rest any argument thatgeneral principles of constitutional law served as fairwarning. Brosseau v. Haugen, 543 U.S. 194, 199(2004). Instead, the inquiry "must be undertaken inlight of the specific context of the case, not as a broadgeneral proposition." Saucier v. Katz, 533 U.S. 194,

198 (2001).

Until the instant First Circuit decision, it wasreasonable for law enforcement to proceed underthe premise that challenged conduct reviewed in a

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particularized way would cross thelished" line only if it:

"clearly estab-

1. Obviously violated the Constitution; or

2. A case or cases existed in the jurisdictiondemonstrating its constitutional infir-mity; or

3. Although there was no case in the juris-diction, a consensus of cases, nationally,existed such to serve as fair warning.

Amicus strongly urges this Court to confirm thisconsistent analysis and override the First Circuit’sdeparture from this approach. Officer Jones’s conductwas not "clearly established" to be wrong when ana-lyzed within the consistent analysis and framework

discussed above. Yet, the First Circuit determinedotherwise. Finding no similar case in its jurisdiction,and, a lack of a consensus of cases, elsewhere, themajority opinion relied on one case in the EleventhCircuit, Smith v. Mattox, 127 F.3d 1416 (llth Cir.1997), to demonstrate the obvious constitutionalviolation of the trooper’s conduct:

"Although Smith helps to demonstrate thatthe law protecting Jennings from Jones’s in-creased use of force was "clearly established"our conclusion does not depend on thisstrikingly similar case. Instead, Smith em-phasizes the obvious unconstitutionality ofincreasing the force used on an arrestee tosuch a degree that a broken ankle results,after the arrestee has ceased resisting forseveral seconds and stated that the force

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already used is hurting his previously in-jured ankle." (App. 32-33).

In effect, the majority opinion seems to havecreated an overriding standard that establishesproscribed conduct if even one case exists in anoutside jurisdiction. This determination, if it is al-lowed to stand, sets aside any analysis as to whetherthere is a case on point in the officer’s home jurisdic-tion or a consensus of cases, nationally. Instead, theFirst Circuit favors a presumption of"obviousness" solong as one case is on point in a remote jurisdiction.

The Court of Appeals holding is demonstrablyflawed when viewed in context with the evidence attrial. The only expert to testify on the issue of properpolice methods was a training officer for the StatePolice Academy, adopted as the plaintiff’s own expert

who, as the Trial Court summarized, testified "thatJones acted properly in continuing to apply the ankleturn control technique until Jones [sic] was fullyunder control and in custody and that Jones’s use offorce was reasonable under the circumstances." (App.85). The First Circuit’s reliance on a similar case inanother jurisdiction to determine obviousness seemsto be at the deliberate exclusion of this expert’stestimony. It is the seemingly heavy reliance placedon this one case that is most troublesome. The dissenthighlights the problem:

"Indeed, the majority goes so far as to reasonthat it should have been perfectly obvious toJones that his use of force was excessive, de-spite the fact that the only expert testimony

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was directly to the contrary and the DistrictCourt which heard the evidence concludedotherwise." (App. 56).

The First Circuit’s misplaced reliance on one"outside jurisdiction" case demonstrates the need forthis Court to re-establish the standard for this prongof the qualified immunity analysis. In addition, thefinding of obviousness based on one case in anotherjurisdiction will have an effect on the final determi-nation of whether the officer reasonably should have

known that the conduct was violative of the Constitu-tion. It is far easier to meet this element once there isa finding that the conduct at issue "obviously" waswrong.

As a final note, Amicius submits that it is impor-tant for this Court to clear up any ambiguity in thisprong of the qualified immunity analysis. It is thisprong, whether conduct is clearly established asconstitutionally infirm, that may be the initial anddecisive determination or, at least the most promi-nent determination, if the "order of battle" sequenceis overruled. Saucier, 533 U.S. at 201 (Breyer, J.,concurring). Amicus urges this Court to adopt thereasoning of Justice Breyer in support of abandoningthe necessity of first finding a constitutional violationin the qualified immunity analysis before proceedingto the second prong of whether that violation is"clearly established." Morse v. Frederick, 550 U.S.

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__, 127 S. Ct. 2618, 2641 (2007) (Breyer, J., concur-ring in part, dissenting in part).3

A shift in the analysis, when there exists diffi-cult constitutional issues, will make the "clearlyestablished" element more prominent. All citizenswill benefit if this Court grants this petition, and re-establishes a consistent framework upon which to

decide this, ever increasing, important determination.

II. THE TRIAL COURT SHOULD HAVE DIS-CRETION IN APPROPRIATE CIRCUM-STANCES, TO DETERMINE CONTESTEDFACTS NECESSARY FOR A QUALIFIEDIMMUNITY ANALYSIS NOTWITHSTAND-ING A GENERAL JURY VERDICT

Amicus urges this Court to grant the petition anddecide that under proper circumstances, the TrialCourt, without reliance on the jury, has the discretionto make findings of fact necessary to determine theissue of qualified immunity. In the instant case, theTrial Court, in addressing the qualified immunityissue, post-verdict, made findings of fact independentof the jury verdict. Specifically, the Trial Judge util-ized a general standard that on a Motion for Judg-ment raising the qualified immunity defense, and

3 Amicus notes that the Court granted certiorari on thequalified immunity issue, but, it was not addressed in themajority opinion. The Appellate Court’s holding was reversed ona different ground.

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decided after trial, "deference should be accorded tothe jury’s discernable resolution of disputed factualissues." (App. 74).

However, the Trial Court determined that theplaintiff failed to present any evidence on whetherthe Trooper’s action deviated from the standard ofconduct expected of an objectively reasonable officerunder the circumstances. (App. 85). Consequently, theTrial Court found that the plaintiff did not prove theFourth Amendment constitutional violation of exces-sive force. (App. 86).

Conversely, the First Circuit found that theplaintiff did present evidence that could be construedas excessive force. (App. 17). The Appeal’s Courtnoted "that a reasonable jury could have found thatJones increased the force he used after Jennings hadalready ceased resisting [is] based on the principlethat we must view the evidence in the light mostfavorable to the jury verdict." (App. 13). The FirstCircuit noted the conflict in its factual analysis, withthe lower Court’s reasoning, which resulted in theopposite findings of fact, on the critical element ofwhether excessive force was established by the evi-dence. (App. 13).

Both the majority opinion and the dissent refer-enced the need for clarity from this Court as towhether a Trial Judge may act as a fact finder whenthere is a factual dispute underlying a qualifiedimmunity analysis.

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The majority opinion stated,

"The dissent intimates that the jury’s factfinding role may be different in a case involv-ing qualified immunity, noting our priorstatement that ’the Supreme Court has notclearly indicated whether the Judge may actas fact-finder when there is a factual disputeunderlying the qualified immunity defenseor whether this function must be fulfilled bya jury.’" (App. 15).

Similarly, the dissent stated,

"The Supreme Court has not yet addressedthe question of what role jury findings playin the judicial immunity determination, norhas this Circuit. See, e.g., Kelley v. LaForce,288 F.3d 1, 7 n.2 (lst Cir. 2002) ("[T]heSupreme Court has not clearly indicatedwhether the Judge may act as fact finderwhen there is a factual dispute underlyingthe qualified immunity defense or whetherthis function must be fulfilled by a jury");Ringuete v. City of Fall River, 146 F.3d 1, 6(lst Cir. 1998) ("Something of a ’black hole’exists in the law as to how to resolve factualdisputes pertaining to qualified immunitywhen they cannot be resolved on summaryjudgment prior to trial"). No clear answerhas emerged from the Circuits."

(App. 46).

The First Circuit Court of Appeals opinion shouldbe reversed because, in determining the facts, itrejected the Trial Court’s determination of the lack of

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any evidence of excessive force and instead relied onthe jury’s general determination of liability. Amicussubmits that a more reasonable approach is to allowthe Trial Court to have the discretion to make factualdeterminations in appropriate cases, such as, whenthe Court determines there is an absence of anycredible evidence on a necessary element of a consti-tutional violation.

By necessity, factual findings, in limited areas,exist in jury trials. Courts routinely engage in factfinding assessments in both criminal and civil mat-ters. For instance, Trial Courts are frequently calledupon to decide facts in addressing motions to sup-press evidence or inculpatory statements in criminalmatters. Similarly, Trial Courts must make factualdeterminations in civil matters relating to a number

of affirmative defenses, such as, statute of limitationsor laches (i.e., whether a plaintiff knew, or shouldhave known, when a particular cause of action beganto accrue).

Submitting disputed facts to the jury in theabove stated circumstances are clearly impracticable.

In the usual accepted practice, the Trial Court pre-sides over a hearing and makes factual and legaldeterminations which impact whether, and underwhat circumstances, a trial proceeds to a jury verdict.A preliminary finding, either pre- or post-verdict, thatthe elements of qualified immunity have, or have not,been met should be treated in the same manner.

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In the instant case, the Trial Judge who heard all

of the evidence determined that the plaintiff failed toprove excessive force. The First Circuit allowed thejury’s verdict to overshadow the analysis of the TrialCourt in this important respect. The Appeals’ Courtshould have determined the propriety of the lowerCourt’s ruling based on an abuse of discretion stan-dard without regard to its interpretation of the jury’sgeneral verdict.

Moreover, it is not without precedent for Appel-late courts to make findings of fact from the recordwhen necessary. Recently, this Court made referenceto a videotape introduced in evidence to determinethat there was no genuine issue of material fact in asummary judgment motion involving qualified im-munity, despite the Appellate Court’s decision to thecontrary. Scott v. Harris, 550 U.S. __., 167 L.Ed. 2d686 (2007). In Scott, the Eleventh Circuit Court ofAppeals adopted the plaintiff’s version of the facts inaffirming the denial of summary judgment on quali-fied immunity grounds. Id. at 691. The EleventhCircuit followed the general rule that upon a motionfor summary judgment, when there are differingversions, the Court is required to view the facts in thelight most favorable to the non-moving party. How-ever, on appeal to this Court, the plaintiff’s version ofthe facts was rejected because it was at odds with avideotape depicting the incident, which was directlycontrary to the plaintiff’s version, and not otherwisedetermined to be inaccurate. This Court stated:

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"When opposing parties tell different stories,one of which is blatantly contradicted by therecord, so that no reasonable jury could be-lieve it, a Court should not adopt that ver-sion of the facts for purposes of ruling on amotion for summary judgment. That was thecase here with regard to the factual issue ofwhether respondent was driving in suchfashion as to endanger human life. Respon-dent’s version of events is so utterly discred-ited by the record that no reasonable jurycould have believed him. The Court of Ap-peals should not have relied on such visiblefiction; and should have viewed the facts inthe light depicted by the videotape." Scott,127 S. Ct. at 1779.

In making this assessment, this Court employeda similar analysis as the Trial Court in the instantcase, when it found that the credible evidence did notdemonstrate the finding of a constitutional violation.In spite of the jury’s verdict, in the instant matter,the Trial Judge concluded that there was no evidenceon the record to substantiate a claim of excessiveforce. Coincidently, the Trial Judge also relied, inpart, on his interpretation of what was depicted on avideotape introduced as an exhibit.

Amicus submits that in this ever increasingtechnological age, recorded events placed before theJudge and jury will be the norm in trial proceedings.

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Under these circumstances, Trial Courts should befree to decide facts despite a general jury verdict onissues of qualified immunity.4 If the touchstone setforth by this Court in Scott and referenced above is toremain, this Court must address the First Circuit’sruling which takes such "visible fiction" and cementsit into a reality. A proper rule would allow the TrialCourt the discretion, on a case by case basis, to decidefactual disputes in a qualified immunity analysis,subject to appellate scrutiny for an abuse of thatdiscretion. Amicus respectfully asks this Court togrant certiorari to clarify this issue.

III. CONCLUSION

Granting certiorari in this matter will allowthis Court to address and clarify the standards tobe applied in a qualified immunity analysis. A deci-sion in this regard will allow for a more consistent

4 There is additional precedent for Trial Courts to makefindings of fact on contentious issues. Amicus notes that inMitchell v. Forsyth, 472 U.S. 511, 535 (1985), this Court accepteda District Court’s determination after a hearing (without regardto a jury decision) on a key fact issue on a qualified immunitydetermination. "The District Court held a hearing on thepurpose of the wire tap and took Mitchell at his word that thewire tap was a national security interception, not a prosecutorialfunction for which absolute immunity was recognized." Id.

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application to qualified immunity. Amicus respect-fully requests this Court to grant certiorari.

Respectfully submitted,

MARC DESISTO, ESQ. (#2757)DESISTO LAW211 Angell StreetP.O. Box 2563Providence, RI 02906-2563Phone: (401) 272-4442Fax: (401) 272-9937marc@desistolaw.com

MIA MANZOTTI, ESQ. (#7087)One State Street, Ste. 502Providence, RI 02908Phone: (401) 272-3434Fax: (401) 421-0824mia@rileague.org

Counsel of Amicus Curiae

Date: December, 2007