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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
It turned out to be a very unlucky night for Ken Rogers to be locked out of his daughter’s house in Kennewick, Wash. Arriving at her home late one evening in July 2003 and finding himself without either a key or any other way to get in the house, Rogers decided to go to sleep in the backyard. That same night, city police officers — on the trail of a fleeing suspect in the neighborhood — decided to unleash a trained canine to track down the criminal. Instead of bringing the suspect to justice, however, the dog hopped a fence and attacked the sleeping Rogers, resulting, according to court filings, in “sustained injuries to his head, arms, back, neck, and legs, including scarring, permanent hearing loss, and nerve damage.” In a dispute that may reach the Supreme Court, Rogers brought a lawsuit in federal district court against both the city and the individual officers, including the sergeant in charge, Richard Dopke, contending that his civil rights had been violated. The defendants moved for summary judgment, arguing that although the act was horrific, the officers cannot be held liable because the search was not unconstitutional and the officers were, in any event, entitled to qualified immunity while doing their jobs. Both the federal district court and the U.S. Court of Appeals for the 9th Circuit ruled in favor of Rogers, and now two separate petitions have been filed asking the Supreme Court to review the case. Represented by Michael McFarland of Evans, Craven & Lackie, the petition in Dopke v. Rogers, No. 06-626, contends that Dopke can’t be held liable because neither prong of a two-pronged test to negate qualified immunity is satisfied in this case. According to the petition, qualified immunity protects the sergeant from being sued unless it can be established that he “violated a constitutional right of Mr. Rogers.” In this case, Dopke asserts, the relevant constitutional right is that of being protected from an unreasonable search and seizure (under the Fourth Amendment), and Supreme Court precedent shows that “the unintentional consequences of lawful government action cannot form the basis of a Fourth Amendment violation.” The petitioners say the chain of events that led to Dopke ordering the canine handler to unleash a trained dog certainly did not have as one of its intentions the mauling of a man innocently sleeping in a backyard. It’s possible that this was just a case of a well-trained, experienced police dog making a horrible mistake, they argue, and in such unfortunate circumstances no one is to blame, either morally or financially. The petition also claims that even if Rogers’ constitutional rights were violated, it must also be established that the rights at stake were so ” �clearly established’ . . . that �in the light of pre-existing law the unlawfulness [of the challenged action was] apparent.’ ” But the petitioners believe this patently can’t be the case: The only action at issue was Dopke’s decision to authorize a so-called canine track of a fleeing suspect, and the sergeant could not possibly have known that such a bizarre series of events could result in a constitutional violation. Opposing certiorari, Rogers — represented by Brian Iller of Rettig, Osborne, Forgette — contends that Dopke’s order was not only unconstitutional, but that the officer should also have recognized it as such. According to the facts of this case, the suspect the police were pursuing was charged only with “fail[ing] to use proper headlights and a helmet while operating a moped.” Given that the “Ninth Circuit had previously held that the use of a canine to track and seize a fleeing suspect initially stopped for a traffic violation could be unreasonable,” Rogers contends that unleashing the dog was such an unnecessarily risky maneuver in those circumstances that Dopke should have known it was unreasonable. Rogers also asserts that the other prong of the qualified-immunity test — that there was a constitutional violation — was satisfied. According to Rogers, “When an intentionally deployed canine detains a suspect, [even] in the absence of a specific verbal command to seize that person, a seizure has taken place,” and the important protections afforded by the Fourth Amendment are thus violated. Rogers sees the matter as simple: When police decide to use a canine, seizing the wrong person has to be a foreseeable risk, and it was entirely unreasonable to make such a decision to pursue a suspect fleeing in a neighborhood when the suspect’s only crime was failing to wear a helmet on a moped. As unlucky as the night turned out to be for everyone involved, Rogers believes that Dopke ought to be held liable for his unconstitutional actions. The justices will consider this petition — along with that of the companion case, City of Kennewick v. Rogers, No. 06-616, which presents overlapping but slightly different issues — in their private conference on Jan. 12. They could announce as early as Jan. 15 whether they will hear either or both of the cases. — Jason Harrow
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 05-853, McGowan v. NJR Service Corp. (CA3) Whether a federal common law rule should be fashioned that requires a pension plan administrator to recognize a post-retirement waiver by the petitioner’s former spouse of her right to survivor annuity. • 05-1284, Watson v. Philip Morris (CA8) Whether the Federal Trade Commission’s role in preventing deceptive advertising by tobacco companies is sufficient to establish that a tobacco company was “acting under” a federal officer for purposes of 28 U.S.C.�1442(a)(1), when the tobacco company marketed cigarettes as “light.” • 06-334, Appoloni v. United States (CA6) Whether early retirement payments made to tenured public school teachers who gave up tenure and other rights upon resigning from their positions were “wages” subject to Federal Insurance Contributions Act taxes. • 06-407, Saville v. IBM (CA10) Whether the concept of “materially adverse employment action,” as applied in claims alleging discrimination or retaliation under federal workplace legislation containing protections against retaliation, covers such adverse employment actions as constructive discharges or forced early retirements. • 06-466, PG&E v. San Luis Obispo Mothers for Peace (CA9) Whether the National Environmental Policy Act requires a federal agency to consider, as part of its review of an agency action, the environmental impact of potential sabotage of a nuclear plant whenever the possibility of sabotage is anything more than “remote and highly speculative.” • 06-705, Dow Corning v. Committee of Unsecured Creditors (CA6) Whether a bankruptcy court may interpret a confirmed plan of reorganization in a way that would violate the Bankruptcy Code, thereby depriving such a plan of finality and allowing parties to challenge its legality at any time.

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