“red”

816

Philadelphia

Respondent

No. 15-1983

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2015

UNITED STATES,

Petitioner,

v.

ROY CAMPBELL,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT UNITED STATES

BRIEF FOR THE RESPONDENT

Attorneys for Respondent

Team 816

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

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

STATEMENT OF JURISDICTION................................................................................................1

STANDARD OF REVIEW .............................................................................................................1

STATEMENT OF THE ISSUES.....................................................................................................2

STATEMENT OF THE CASE ........................................................................................................3

STATEMENT OF THE FACTS .....................................................................................................3

SUMMARY OF THE ARGUMENT ..............................................................................................7

ARGUMENT ...................................................................................................................................8

I. THE THIRTEENTH CIRCUIT COURT OF APPEALS CORRECTLY

HELD OFFICER CAMPBELL ESTABLISHED BOTH A REASONABLE

SUBJECTIVE AND OBJECTIVE EXPECTATION OF PRIVACY IN HIS

LOCKER, AND THAT OFFICER RANDALL’S SEARCH OF OFFICER

CAMBPELL’S LOCKER VIOLATED THE FOURTH AMENDMENT. ....................8

a. Public-Sector Workplace Defined. .....................................................................................10

1. O’Connor: Defining the Boundaries for the Public-Sector Workplace...........10

i. Approach of the O’Connor Plurality in Defining the Public-Sector

Workplace. .....................................................................................................11

ii. Approach from Justice Scalia’s Concurrence for Defining the Public-

Sector Workplace. ..........................................................................................13

2. The Work Place Realities Of The New Jacksonville Department Do Not

Justify The Search Of Officer Campbell’s Locker. ...........................................14

b. Officer Campbell Established a Subjective Expectation of Privacy. ..............................15

1. Standard For Police Department Searches; Balancing Individual Rights

Against Integrity Interests. ..................................................................................15

2. By Placing A Personal Lock On His Locker, Officer Campbell Further

Manifested His Subjective Privacy Expectations. ...............................................17

ii

c. Officer Campbell Established an Objective Expectation of Privacy in his Locker. ......18

1. The Absence of Prior Departmental Notice Or Contradictory Policies May

Solidify an Individual’s Expectation of Privacy.. ..............................................19

2. The Absence of a Prior New Jacksonville Policy Department Policy

Solidified Officer Campbell’s Objective Expectation of Privacy in his

Department-Issued Locker. ...............................................................................19

d. The Lack of Prior Locker Searches Failed To Constitute A Routine Practice. ............21

e. Identifying the Purpose of a Search in the Public-Sector Workplace is Essential in

Assessing the Search’s Reasonableness Under the Fourth Amendment.. ......................22

1. The “Special Needs” Exception for Workplace Searches and General

Requirements for Public-Sector Workplace Searches. ......................................23

2. Application of the “Special Needs” Analysis in the Public-Sector. ..................24

i. Application of the “Special Needs” Exception by This Court .......................25

ii. Application of the “Special Needs” Exception by Circuit Courts of

Appeals ..........................................................................................................26

f. The Purpose of the “Search” by Officer Graham was to Punish Officer Campbell

and the “Search” Violated Officer Campbell’s Fourth Amendment Rights. ................29

II. UNDER 18 U.S.C § 249, OFFICER CAMPBELL DID NOT COMMIT A HATE

CRIME IN THE COURSE OF DUTY WHEN THE MOTIVATING FACTOR FOR

HIS ACTIONS WERE NOT ATTRIBUTED TO THE RACE OF THE MR.

JENNINGS. .........................................................................................................................30

a. History Underlying Congressional Enactment of the Hate Crimes Prevention Act. ....30

b. The Statutory Language “Because Of” Used in 18 U.S.C § 249 Requires a Showing

of But-For Causality When Attributed to the Motive Behind an Actor’s Actions. .......31

1. Any Subjective Beliefs Held By Officer Campbell Do Not Demonstrate that

a But-For Causal Connection Existed Between Any Perceived Racial

Animus and Officer Campbell’s Actions During the Stop of Mr. Jennings.....33

2. The District Court’s Use of the Significant Motivating Factor Test, as

Related to Causation, Offends This Court’s Clear Precedent Requiring But-

iii

For Causation When Congress Explicitly Used the Language “Because Of”

in the HCPA. .......................................................................................................34

3. A Fine Line Exists Between the Regulation of Bias Motivated Conduct

Where Concerns for Offending the First Amendment are Balanced by

Evaluating the Reasonableness of an Officer’s Actions Using a But-For

Causality Standard. .............................................................................................36

i. Under the HCPA, the Required But-For Causality Standard Ensures

Proper Punishment of Bias Motivated Conduct and Thus Does Not Offend

the First Amendment ......................................................................................37

ii. The Reasonableness of Officer Campbell’s Use of Force Demonstrates the

Need for a But-For Causality Standard to Distinguish that his Actions

during the encounter with Mr. Jennings were not Based Off a Racially

Motivated Conviction .....................................................................................38

CONCLUSION ..................................................................................................................................40

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases

Burrage v. United States,

134 S. Ct. 881 (2014) .............................................................................................................passim

Camara v. Mun. Court of City & Cnty. of San Francisco,

387 U.S. 523 (1967) ...............................................................................................................9, 15

Chandler v. Miller,

520 U.S. 305 (1997) ...............................................................................................................9, 23

City of Ontario, Cal. v. Quon,

560 U.S. 746 (2010) ...............................................................................................................passim

Commissioner v. Lundy,

516 U.S. 235 (1996) ...............................................................................................................2

Crandon v. United States,

494 U.S. 152 (1990) ...............................................................................................................2, 36

Dawson v. Delaware,

503 U.S. 159 (1992) ...............................................................................................................37

Ferguson v. City of Charleston,

532 U.S. 67 (2001) .................................................................................................................passim

Garrity v. New Jersey,

385 U.S. 493 (1967) ...............................................................................................................17

Graham v. Connor,

490 U.S. 386 (1989) ...............................................................................................................38, 40

Griffin v. Wisconsin,

483 U.S. 868 (1987) ...............................................................................................................27

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) ...............................................................................................................32

Katz v. United States,

389 U.S. 437 (1967) ...............................................................................................................10, 15, 17

Lewis v. United States,

385 U.S. 206 (1966) ...............................................................................................................17

Nat’l Treasury Emps. Union v. Von Raab,

489 U.S. 656 (1989) ...............................................................................................................9

New Jersey v. T.L.O.,

469 U.S. 325 (1985) ...............................................................................................................11, 12, 13, 15

O’Connor v. Ortega,

480 U.S. 709 (1987) ...............................................................................................................passim

Rawlings v. Kentucky,

448 U.S. 98 (1980) .................................................................................................................15

Skinner v. Ry. Labor Execs’. Ass’n,

489 U.S. 602 (1989) ...............................................................................................................9, 23

Tennessee v. Garner,

471 U.S. 1 (1985) ...................................................................................................................38

Terry v. Ohio,

392 U.S. 1 (1968) ...................................................................................................................21, 38

v

United States v. Place,

462 U.S. 696 (1983) ...............................................................................................................15

United States v. Lee,

274 U.S. 559 (1927) ...............................................................................................................18

Univ. of Texas Sw. Med. Ctr. v. Nassar,

133 S. Ct. 2517 (2013) ...........................................................................................................32

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ...............................................................................................................24

Wisconsin v. Mitchell,

508 U.S. 476 (1993) ...............................................................................................................37

United States Courts of Appeals Cases

Anaya v. Crossroads Managed Care Sys., Inc.,

195 F.3d 584 (10th Cir. 1999) ...............................................................................................14

Biehunik v. Felicetta,

41 F.2d 228 (2d Cir. 1971).....................................................................................................16, 17, 20

Franz v. Lytle,

997 F.2d 784 (10th Cir. 1993) ...............................................................................................14

Gillard v. Schmidt,

579 F.2d 825 (3d Cir. 1978)...................................................................................................21

Gwynn v. City of Philadelphia,

719 F.3d 295 (3d Cir. 2013)...................................................................................................28

Hosh v. Lucero,

680 F.3d 375 (4th Cir. 2012) .................................................................................................2

Kirkpatrick v. City of Los Angeles,

803 F.2d 485 (9th Cir. 1986) .................................................................................................6, 17

Leventhal v. Knapek,

266 F.3d 64 (2d Cir. 2001).....................................................................................................22

Midi v. Holder,

566 F.3d 132 (4th Cir. 2009) .................................................................................................2

Narotzky v. Natrona Cnty. Mem’l Hosp. Bd. of Trs.,

610 F.3d 558 (10th Cir. 2010) ...............................................................................................9, 27, 28

Nat’l Fed’n of Fed. Emps.-IAM v. Vilsack,

681 F.3d 483 (D.C. Cir. 2012) ...............................................................................................1

Policemen's Benevolent Ass'n of N.J., Local 318 v. Washington Twp.,

850 F.2d 133 (3d Cir. 1988)...................................................................................................28

Rauen v. U.S. Tobacco Mfg. Ltd. P’ship,

319 F.3d 891 (7th Cir. 2003) .................................................................................................22

Schowengerdt v. General Dynamics Corp.,

944 F.2d 483 (9th Cir. 1991) .................................................................................................16,17, 20, 22

Spain v. Gallegos,

26 F.3d 439 (3d Cir. 1994).....................................................................................................23

True v. Nebraska,

612 F.3d 676 (8th Cir. 2010) .................................................................................................24, 26, 27

United States v. Bledsoe,

728 F.2d 1094 (8th Cir. 1984) ...............................................................................................34

vi

United States v. Bunkers,

521 F.2d 1217 (9th Cir. 1975) ...............................................................................................passim

United States v. Carlisle,

614 F.3d 750 (7th Cir.2010) ..................................................................................................15

United States v. Ebens,

800 F.2d 1422 (6th Cir.1986) ................................................................................................34, 36

United States v. Fernandez,

272 F.3d 938 (7th Cir. 2001) .................................................................................................24

United States v. Hatch,

722 F.3d 1193 (10th Cir. 2013) .............................................................................................31

United States v. Hughes,

606 F.3d 311 (6th Cir. 2010) .................................................................................................14

United States v. Jones,

286 F.3d 1146 (9th Cir. 2002) ...............................................................................................25, 27, 29

United States v. Maybee,

687 F.3d 1026 (8th Cir. 2012) ...............................................................................................passim

United States v. McBean,

861 F.2d 1570 (11th Cir.1988) ..............................................................................................1

United States v. Miller,

767 F.3d 585 (6th Cir. 2014) .................................................................................................passim

United States v. Rhiger,

315 F.3d 1283 (10th Cir. 2003) .............................................................................................1

United States v. Speights,

557 F.2d 362 (3d Cir.1977)....................................................................................................passim

United States v. Taketa,

923 F.2d 665 (9th Cir. 1991) .................................................................................................10

United States v. Wells,

739 F.3d 511 (10th Cir. 2014) ...............................................................................................1

Wiley v. Dep’t of Justice,

328 F. 3d 1346 (Fed. Cir. 2003).............................................................................................24, 26, 27

Willis by Willis v. Anderson Cmty. Sch. Corp,

158 F.3d 415 (7th Cir. 1998) .................................................................................................1

Zaffuto v. City of Hammond,

313 F.3d 879 (5th Cir. 2002) .................................................................................................19

United States District Court Cases

Chicago Fire Fighters Union, Local 2 v. City of Chicago,

717 F. Supp. 1314(N.D. Ill. 1989) .........................................................................................7, 20

Haynes v. Office of Attorney Gen. Phill Kline,

298 F. Supp. 2d 1154 (D. Kan. 2003) ....................................................................................19

Shaffer v. Field,

339 F.Supp. 997 (C.D.Cal.1972) ...........................................................................................20, 22

United States v. Donato,

269 F.Supp. 921 (E.D.Pa.1967) .............................................................................................20

vii

United States v. Jenkins,

No. 12-15-GFVT, 2013 WL 3338650, at *5 (E.D. Ky. July 2, 2013), aff'd

13-5902 (6th Cir. Sept. 12, 2014), aff'd 13-5903 (6th Cir. Sept. 12, 2014). ..........................35, 36

United States v. Mullet,

868 F.Supp. 2d 618 (N.D. Ohio 2012) ...................................................................................33

State Court Cases

In re Dennis B.,

557 P.2d 514 (Cal. 1976) .......................................................................................................39

Kaplan v. Allen,

837 So.2d 1174 (Fla. Dist. Ct. App. 2003) ............................................................................39

Montgomery v. State,

369 S.W.3d 188 (Tex. Crim. App. 2012)...............................................................................39

People v. Abramczyk,

415 N.W.2d 249 (Mich. Ct. App. 1987) ................................................................................39

People v. Bailey,

549 N.W.2d 325 (Mich. 1996) ...............................................................................................35

People v. Jennings,

237 P.3d 474 (Cal. 2010) .......................................................................................................34

People v. Ochoa,

864 P.2d 103 (Cal. 1993) .......................................................................................................39

State v. Brown,

603 N.W.2d 419 (Neb. 1999).................................................................................................39

State v. Christman,

249 P.3d 680 (Wash. Ct. App. 2011) .....................................................................................35

State v. Hennings,

791 N.W.2d 828 (Iowa 2010) ................................................................................................32

Constitutional Amendments and Statutory Provision

U.S. Const. amend. IV .......................................................................................................................9

18 U.S.C. § 249 (2009) ......................................................................................................................passim

28 U.S.C. § 1254(1) (1948) ...............................................................................................................1

National Defense Authorization Act for Fiscal Year 2010,

Pub. L. No. 111-84, § 4710, 123 Stat. 2190 (2009) ............................................................... 38

Secondary Authorities

Aaron J. Creuz, But-for the Beard: An Analysis of Causation Under United States Code

Section 249,

16 RUTGERS J. L. & RELIGION 200, 204 (2014) .....................................................................38

Angela D. Moore, Method of Attack: A Supplemental Model for Hate Crime Analysis,

90 IND. L.J. 1707, 1718 (2015) ...............................................................................................30

Carter T. Coker, Hope-Fulfilling or Effectively Chilling? Reconciling the Hate Crimes

Prevention Act with the First Amendment,

64 VAND. L. REV. 271, 273 (2011) .........................................................................................30

viii

Clifford S. Fishman Electronic Privacy in the Government Workplace and City of Ontario,

California v. Quon: The Supreme Court Brought Forth a Mouse,

81 MISS. L.J. 1359, 1362-63 (2012) .......................................................................................11

H. HART & A. HONORE,

CAUSATION IN THE LAW 104 (1959) ......................................................................................31

Lemons, Public Privacy: Warrantless Workplace Searches of Public Employees,

7 U. PA. J. LAB. & EMP. L. 1, 9 (2004) ...................................................................................19

Matthew Trout, Federalizing Hate: Constitutional and Practical Limitations to the Matthew

Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009,

52 AM. CRIM. L. REV. 131, 137 (2015) ...................................................................................30, 38

RESTATEMENT (SECOND) OF TORTS § 432(1) (1964) .........................................................................32

RESTATEMENT (SECOND) OF TORTS § 435(a) (1964) ..........................................................................32

Ricardo J. Bascuas, The Fourth Amendment in the Information Age,

1 VA. J. CRIM. L. 481, 504-05 (2013) ....................................................................................11

1 W. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.4(a),

pp. 464-66 (2d ed. 2003) ........................................................................................................32

1

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Thirteenth Circuit entered judgment on this

matter on October 20, 2015. Petitioner filed a petition for writ of certiorari, which this Honorable

Court granted on November 3, 2015. This Court acquires jurisdiction over the matter pursuant to

28 U.S.C. § 1254, which states “[c]ases in the courts of appeals may be reviewed by the Supreme

Court by . . . writ of certiorari granted upon the petition of any party to any civil or criminal case,

before or after rendition of judgment or decree[.]” 28 U.S.C. § 1254(1) (1948).

STANDARD OF REVIEW

I. Because the issue presented is a legal one, this Court should review the District Court’s

application of the law, in denying Officer Campbell’s motion to suppress under the Fourth

Amendment, de novo. Specifically, courts review the existence of a subjective expectation of

privacy, a question of fact, for clear error. United States v. Wells, 739 F.3d 511, 522 (10th Cir.

2014) (citing United States v. McBean, 861 F.2d 1570, 1573 (11th Cir.1988)). Courts also review

whether an individual’s “subjective expectation of privacy is one society would consider

reasonable,” by applying de novo review. Id. (citing United States v. Rhiger, 315 F.3d 1283,

1285 (10th Cir. 2003)). The application of a “special needs” analysis by a lower court is also

subject to de novo review. Nat’l Fed’n of Fed. Emps.-IAM v. Vilsack, 681 F.3d 483, 485 (D.C.

Cir. 2012) (citation omitted) (“Upon de novo review, we conclude that the Secretary has failed to

demonstrate ‘special needs’ rendering the Fourth Amendment requirement of individualized

suspicion . . . .”); Willis by Willis v. Anderson Cmty. Sch. Corp, 158 F.3d 415, 420 (7th Cir.

1998) (applying de novo review in a “special needs” case to “decide whether the search [was]

reasonable”).

2

II. “Matters of statutory construction present questions of law, which [this Court] generally

review[s] de novo.” Hosh v. Lucero, 680 F.3d 375, 378 (4th Cir. 2012) (citing Midi v. Holder,

566 F.3d 132, 136 (4th Cir.2009)). Even if this Court thinks some other approach to statutory

construction might “‘accor[d] with good policy,’” the role of this Court is to apply the statue as

written. Burrage v. United States, 134 S. Ct. 881, 892 (2014) (quoting Commissioner v. Lundy,

516 U.S. 235, 252 (1996)). In reviewing a statute, courts look not only to the particular statutory

language, but to the statute’s design, object, and policy as a whole. See Crandon v. United States,

494 U.S. 152, 158 (1990). “Moreover, because the governing standard is set forth in a criminal

statute, it is appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of the

statute's coverage.” Id. “To the extent that the language or history of [the statute] is uncertain,

this ‘time-honored interpretive guideline’ serves to ensure both that there is fair warning of the

boundaries of criminal conduct and that legislatures, not courts, define criminal liability.” Id.

STATEMENT OF THE ISSUES

I. Whether the Thirteenth Circuit properly held that (1) Officer Campbell established both a

reasonable subjective and objective expectation of privacy in his department-issued locker and

(2) that Officer Graham’s use of a bolt cutter to forcibly open Officer Campbell’s locker was

unjustified failing to meet the requisite factors for the “special needs” test. In this sort of

situation, should this Court accept the District Court’s decision to deny a motion to suppress in

finding no Fourth Amendment violation?

II. Whether the Thirteenth Circuit properly rejected the District Court’s erroneous finding

that Mr. Jennings’s race was “more than a substantial factor” which motivated Officer

Campbell’s actions during their interaction, when precedent from this Court requires that when

3

the phrase “because of” is used in a statute, such as 18 U.S.C. § 249, it is to be interpreted as

meaning “but-for”?

STATEMENT OF THE CASE

Officer Roy Campbell of the New Jacksonville Police Department was indicted on

federal criminal charges under 18 U.S.C. § 249 before Judge David Marshall in the United States

District Court of the Southern District of Old York. Record page 1, 13 [hereinafter R. page

number]. Officer Campbell filed a motion to suppress the body cam footage obtained by Officer

Graham. R. 7. Judge Marshall denied Officer Campbell’s motion to suppress and at the

conclusion of Officer Campbell’s trial convicted him of a hate crime under 18 U.S.C § 249. R.

13.

Officer Campbell appealed (1) the District Court’s denial of his motion to suppress the

body cam footage and (2) the 18 U.S.C. § 249 conviction. R. 14. On October 20, 2015 the

Thirteenth Circuit Court of Appeals reversed the District Court’s denial of Officer Campbell’s

motion to suppress and 18 U.S.C. § 249 conviction. R. 14, 17. The United States filed a writ of

certiorari following the Thirteen Circuit’s decision, which this Court granted on November 3,

2015.

STATEMENT OF THE FACTS

I. Background.

On June 19, 2013, Officer Roy Campbell1 of the New Jacksonville police force was on

his first solo patrol. R. 3. Pursuant to department policy, Officer Campbell wore a department-

1 Given the factual history of this case, it is important to note that Officer Campbell is Caucasian.

R. 3.

4

issued Axon body camera that recorded his interaction with Michael Jennings.2 R. 4. The body

camera is the primary source of evidence for the following events. R. 5.

Officer Campbell began following Mr. Jennings, who was driving a black 2013 Mercedes

sedan. R. 3. After following Mr. Jennings for about half a mile, Officer Campbell pulled him

over for changing lanes without signaling. Id. After initiating the stop of Mr. Jennings, Officer

Campbell asked him for his license and registration. Id. In turn, Mr. Jennings asked Officer

Campbell why he was pulled over; Officer Campbell did not state a reason. Id. Officer Campbell

next asked where Mr. Jennings acquired the Mercedes; Mr. Jennings stated—and it was later

confirmed—that the car was a birthday gift from his father. Id. Officer Campbell in reply stated,

“likely story,” and asked Mr. Jennings to step out of the Mercedes; Mr. Jennings refused. Id.

Mr. Jennings asked Officer Campbell if he was being pulled over for “DWB,” a reference

to “driving while black.” R. 4. Officer Campbell replied he could pull anyone over, for any

reason he wanted, “especially your kind.” Id. After observing that Mr. Jennings was recording

their interaction on his smart phone, Officer Campbell asked Mr. Jennings to stop recording,

opened the Mercedes door, and knocked the phone out of Mr. Jennings hand. Id. Following this,

Mr. Jennings closed his car door and restarted his Mercedes. Id.

What exactly followed after Mr. Jennings restarted the Mercedes is uncertain as Officer

Campbell’s resulting movements made his body camera footage unclear. Id. From what can be

observed, however, the Mercedes engine can be heard revving, but does not move; Officer

Campbell then directed Mr. Jennings to “stop” and “turn off the engine,” which Mr. Jennings did

not do. Id. Instead, fearing Mr. Jennings would throw the Mercedes in gear, Officer Campbell

2 Given the factual history of this case, it is important to note that Mr. Jennings is African

American. R. 4.

5

reached into the Mercedes, grabbed the steering wheel with left hand, drew his gun with his right

hand, and fired one shot into the Mercedes while appearing to fall backwards. Id. From the time

Officer Campbell touched the door handle to the shot, less than ten seconds elapse. Id. After the

shot, the body camera footage shows the Mercedes rolling away. Id. Officer Campbell pursued

the Mercedes on foot until it hit a curb a short distance away. R. 4-5. Mr. Jennings was bleeding

and injured from a shot to the groin area. R. 5.

When additional officers arrived at the scene, Officer Campbell informed them he was

dragged when his left arm became wedged in the steering wheel of the Mercedes. Id. Officer

Campbell told his fellow officer, Officer James Roberts, that he discharged his firearm in an

attempt to prevent further injury and flight. Id. While Officer Campbell also stated his arm, he

was otherwise uninjured. Id.

At trial, Officer Campbell presented no evidence of injuries consistent with his report of

being pulled by the Mercedes. Id. Also at trial, an expert witness testified that officers are trained

not to reach into a car during a stop, due to the risk of being dragged. R. 6. Officer Campbell

testified the discharge of his firearm was accidental and was caused by the movement of the

Mercedes. Id. Additionally, two fellow officers testified to hearing Officer Campbell state, “I

still think it was a clean shot, I mean why did he have to start the car up? I didn’t know what we

he was going to do, but as it turns out, at least I made sure that one of them won’t be able to

breed.”3 Id.

Following the interaction, Officer Campbell was placed on desk duty pending a standard

officer-involved shooting investigation, and participated in diversity training.4 Id. Once Officer

3 The inference from this statement refers to the injuries suffered by Mr. Jennings. R. 6.

4 It should be noted that Officer Campbell is a member of two groups aimed at preserving racial

purity, the League of the South and Kingdom Identity Ministries. R. 6.

6

Campbell’s body camera footage was discovered, Officer Campbell was suspended without pay

until the criminal charges against him were resolved. R. 1, 6.

II. The Motion to Suppress.

Officer Campbell told investigators he was unable to find his body camera from the day

of the interaction with Mr. Jennings. R. 7. Officer Randall Graham,5 who holds the same rank as

Officer Campbell and was unaffiliated with the investigation, became suspicious of the fact that

Officer Campbell’s body camera had not been uploaded at the end of his shift, as required

pursuant to New Jacksonville Police Department policy. Id. Additionally, Officer Graham

noticed that Officer Campbell had replaced his department-issued lock on his locker with a

personal lock.6 Id.

Acting upon his suspicion, just two days after the altercation between Officer Campbell

and Mr. Jennings, Officer Graham used a bolt cutter to forcibly open Officer Campbell’s locker

and allow him to retrieve Officer Campbell’s body camera. Id. Officer Graham’s purported

justification for breaking into Officer Campbell’s locker was to prevent the destruction of the

body camera. Id. At trial, however, Officer Graham admitted that his motivation in using the bolt

cutter to break Officer Campbell’s personal lock and access Officer Campbell’s locker was to

“force that lying, racist asshole to tell the truth for once.” Id. In addition, while Officer Graham

admitted that he was angered by Officer Campbell’s comments regarding the possibility that Mr.

Jennings may no longer be able to “breed,” he testified that this statement was not the first time

he heard Officer Campbell make a derogatory comment about ethnic minorities. Id.

5 In addition to being Officer Campbell’s colleague, it is important to note that Officer Graham is

African American. R. 7. 6 The record does not indicate where the New Jacksonville Police Department had a policy

regarding locker security or the use of personal locks on department issued lockers.

7

SUMMARY OF ARGUMENT

I. The Thirteen Circuit correctly held that Officer Campbell established a reasonable

subjective and objective expectation of privacy in his department-issued locker. Precedent holds

that when a public sector employer—like the New Jacksonville Police Department—fails

provide employees of notice, perform routine searches or otherwise indicate to employees that

they have a reduced expectation of privacy within their place of employment, courts have held

that those employees are entitled to a normal expectation of privacy. The District Court

erroneously concluded that just one prior locker search, conducted a year before Officer

Campbell joined the New Jacksonville Police Department, constituted a routine practice which

placed its officers, including Officer Campbell, on notice that they had a reduced expectation of

privacy in their workplace.

Officer Campbell manifested his expectation of privacy by using a personal lock on his

department-issued locker—substituting it for the department-issued lock for the locker—and by

storing personal items in his department-issued locker. The New Jacksonville Police Department

had no established policy that defined locker securing protocol. In the absence of such a policy,

precedent requires that ambiguity be construed to validate an employee’s expectation of privacy.

Officer Graham, an officer of the same rank as Officer Campbell—and unaffiliated with the

standard post shooting investigation members investigating the incident between Officer

Campbell and Mr. Jennings—let his personal hatred for Officer Campbell motivate his decision

to use a bolt cutter and remove the lock from Officer Campbell’s locker. Officer Graham’s

actions were not of the type that are generally accepted in public-sector workplace searches, i.e.

those that are based off a non-investigatory purpose or conducted for a work-related

investigatory purpose. As such, even though there is a lack of clarity regarding the precise

8

application of the “special needs” test to the public-sector workplace, Officer Graham’s actions

fail to satisfy any of the tests set forth in O’Connor. Therefore, because Officer Graham’s

conduct of using bolt cutters without a warrant, probable cause, a general workplace reason, or

“special needs” exception violated Officer Campbell’s Fourth Amendment rights, the Thirteenth

Circuit correctly suppressed Officer Campbell’s body camera.

II. The Thirteenth Circuit was correct in holding that Officer Campbell’s actions pertaining

to the interaction with Mr. Jennings did not satisfy the “but-for” causality element required under

18. U.S.C § 249. The District Court erred in attributing the motivations for Officer Campbell’s

actions to Mr. Jennings race and improperly weighed evidence in favor of a perceived racial

motive by refusing to analyze the “reasonableness” of Officer Campbell’s actions during the

encounter with Mr. Jennings. Furthermore, the District Court improperly relied on Officer

Campbell’s personal beliefs—and involvement in certain racially centric organizations—in

convicting Officer Campbell under 18 U.S.C § 249. It is clear that the requirement of “but-for”

causality, required by this Court’s precedent, creates a fine line between offending the First

Amendment and punishing bias motivated conduct. Any personal beliefs held by Officer

Campbell do not demonstrate a but-for causal link between his actions and the race of Mr.

Jennings. By using the term “because of” in 18 U.S.C § 249, Congress made explicit its

requirement that but-for causation be applied by courts when analyzing bias motivated conduct.

9

ARGUMENT

I. THE THIRTEENTH CIRCUIT COURT OF APPEALS CORRECTLY HELD

OFFICER CAMPBELL ESTABLISHED BOTH A REASONABLE SUBJECTIVE

AND OBJECTIVE EXPECTATION OF PRIVACY IN HIS LOCKER, AND THAT

OFFICER RANDALL’S SEARCH OF OFFICER CAMBPELL’S LOCKER

VIOLATED THE FOURTH AMENDMENT.

Under the Fourth Amendment, it is a “right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and seizures . . . .” U.S. CONST. amend.

IV. In fact, as this Court recently reaffirmed, the Fourth Amendment “‘guarantees the privacy,

dignity, and security of persons against certain arbitrary and invasive acts by officers of the

Government,’ without regard to whether the government actor is investigating crime or

performing another function.” City of Ontario, Cal. v. Quon, 560 U.S. 746, 755-56 (2010)

(quoting Skinner v. Ry. Labor Execs’. Ass’n, 489 U.S. 602, 613-14 (1989)). Further, it is a well-

settled proposition “that the Fourth Amendment protects individuals from unreasonable searches

conducted by the Government, even when the Government acts as an employer . . . .” Nat’l

Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989) (citing O’Connor v. Ortega, 480

U.S. 709, 717 (1987) (plurality opinion); O’Connor, 480 U.S. at 731 (Scalia, J, concurring)).

Accordingly, the search or seizure of an individual “is ordinarily unreasonable in the

absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S.

32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)). In certain situations,

however, where “‘the burden of obtaining a warrant is likely to frustrate the governmental

purpose behind the search,’ . . . a warrant may not be required by the Fourth Amendment.”

Narotzky v. Natrona Cnty. Mem’l Hosp. Bd. of Trs., 610 F.3d 558, 567 (10th Cir. 2010) (quoting

Camara v. Mun. Court of City & Cnty. of San Francisco, 387 U.S. 523, 533 (1967)); accord

Quon, 560 U.S. at 760 (“Although as a general matter, warrantless searches ‘are per se

10

unreasonable under the Fourth Amendment,’ there are ‘a few specifically established and well-

delineated exceptions’ to that general rule.’” (quoting Katz v. United States, 389 U.S. 347, 357

(1967))). Thus, where the primary purpose of a search is to investigate or uncover evidence of

criminal misconduct, a search warrant based upon probable cause will be required. See United

States v. Taketa, 923 F.2d 665, 678 (9th Cir. 1991) (applying the exclusionary rule to prohibit the

United States Government from using DEA videotapes of the defendant committing criminal

actions in his workplace because the Government failed to obtain a warrant based upon probable

cause to record workplace activities).

a. Public-Sector Workplace Defined.

The reasonableness of an expectation of privacy, as well as the appropriate standard for a

search, differs according to context. O’Connor, 480 U.S. at 715 (plurality opinion). Broadly, the

public-sector workplace includes those areas and items that are related to work and are generally

within the employer's control. Id. (plurality opinion). For example, at a hospital, the hallways,

cafeteria, offices, desks, and file cabinets, among other areas, are all part of the workplace. Id. at

716 (plurality opinion).

1. O’Connor: Defining the Boundaries for the Public-Sector Workplace.

This Court, in O’Connor, first addressed the applicability of the Fourth Amendment in

the public-sector workplace. Quon, 560 U.S. at 756. While no single standard was agreed upon

to assess whether or not the warrantless intrusion of a government employee’s office was

reasonable under the Fourth Amendment, a majority of the Court in O’Connor agreed that a

government employer or supervisor could search an employee’s office without needing to get a

warrant or upon obtaining probable cause. See O’Connor, 480 U.S. at 725 (plurality opinion); id.

at 732 (Scalia, J., concurring). In Quon, this Court declined to take the opportunity to clarify

11

which opinion from O’Connor controls7 public-sector warrantless searches, finding that the

Government employer’s search of an employee’s text messages was reasonable under either

approach—the plurality’s or Justice Scalia’s concurrence. 560 U.S. at 757.8

i. Approach of the O’Connor Plurality in Defining the Public-Sector

Workplace.

In determining how best to view the role of the Fourth Amendment in searches by public-

sector employers, the O’Connor plurality first observed how small the case law was addressing

the “standard of reasonableness for a public employer's work-related search of its employee's

offices, desks, or file cabinets.” Id. at 720 (plurality opinion). Given this, the plurality articulated

a test that it felt “balance[s] the invasions of the employees’ legitimate expectations of privacy

against the government’s need for supervision, control, and the efficient operation of the

workplace.” Id. at 720-21 (plurality opinion). This test was meant to apply “‘[o]nly in those

exceptional circumstances in which special needs, beyond the normal need for law enforcement,

make the warrant and probable-cause requirement impracticable.’” Id. at 721 (plurality opinion)

(quoting New Jersey. v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring)). A reason

7 In a concurring opinion, Justice Stevens laid out his support for this Court eventually adopting

Justice Blackmun’s dissenting opinion from O’Connor, which was also supported by four

justices and would have found that the actions of Mr. Ortega’s employers violated his

expectation of privacy and was an unreasonable search for Fourth Amendment purposes. Quon,

560 U.S. at 766-67 (Stevens, J., concurring). 8 The decision of the Quon Court not to fashion a uniform standard for public-sector employers

to follow frustrated some commentators who saw Quon as an opportunity to clarify the role of

the Fourth Amendment in the wake of O’Connor. See, e.g., Ricardo J. Bascuas, The Fourth

Amendment in the Information Age, 1 VA. J. CRIM. L. 481, 504-05 (2013) (“The Court then

sidestepped another issue that the Katz test had failed to resolve (for more than 20 years) by

further assuming that the department’s action, obtaining and reading its employee’s text

messages, was a search.”); Clifford S. Fishman Electronic Privacy in the Government Workplace

and City of Ontario, California v. Quon: The Supreme Court Brought Forth a Mouse, 81 MISS.

L.J. 1359, 1362-63 (2012) (observing that while many hoped the Court “would clarify the

uncertainties left over from O'Connor and resolve new issues created by electronic

communications technology . . . [the Quon decision] decided very little, and leaves the law more

unsettled than it previously was.”).

12

for limiting the situations in which this test would apply was due to the unique nature of a search

conducted by a public-sector employer or supervisor. Id. (plurality opinion) (“While police, and

even administrative enforcement personnel, conduct searches for the primary purpose of

obtaining evidence for use in criminal or other enforcement proceedings, employers most

frequently need to enter the offices and desks of their employees for legitimate work-related

reasons wholly unrelated to illegal conduct.”). Additionally, even though “law enforcement

officials are expected to ‘schoo[l] themselves in the niceties of probable cause,’ no such

expectation is generally applicable to public employers, at least when the search is not used to

gather evidence of a criminal offense.” Id. at 724 (plurality opinion) (quoting T.L.O., 469 U.S. at

343) (alteration in original). This fact, and the plurality’s belief that “[i]t is simply unrealistic to

expect supervisors in most government agencies to learn the subtleties of the probable cause

standard[,]”id. at 724-25 (plurality opinion), led the plurality to conclude that a balancing test

was needed to apply the “special needs” exception in defining the scope of public-sector

workplace searches. Id. at 725 (plurality opinion).

In reality, the plurality’s balancing analysis proceeds in two steps. See Quon, 560 U.S. at

756. The first step considers “‘[t]he operational realities of the workplace’ in order to determine

whether an employee’s Fourth Amendment Rights are implicated.” Id. (quoting O’Connor, 480

U.S. at 717 (plurality opinion)). The court then assesses the reasonableness of an employee’s

expectation of privacy on a case-by-case basis. Id. at 756-57 (citing O’Connor, 480 U.S. at 718

(plurality opinion)). The second step of the O’Connor plurality’s balancing test—assuming an

employee has a reasonable expectation of privacy to the workplace area at issue—evaluates “an

employer’s intrusion on that expectation ‘for noninvestigatory, work-related purposes, as well as

for investigations of work-related misconduct . . . judged by the standard of reasonableness under

13

all the circumstances.’” Id. at 757 (quoting O’Connor, 480 U.S. at 725-26 (plurality opinion)).

Assessing reasonableness under this second step, requires applying “a twofold inquiry: first, one

must consider whether the . . . action was justified at its inception; second, one must determine

whether the search as actually conducted was reasonably related in scope to the circumstances

which justified the interference in the first place.” O’Connor, 480 U.S. at 726 (plurality opinion)

(quoting T.L.O., 469 U.S. at 341) (internal marks and citations omitted).

ii. Approach from Justice Scalia’s Concurrence for Defining the Public-

Sector Workplace.

In his concurring opinion, Justice Scalia noted his disagreement with the plurality’s test.9

Id. at 730 (Scalia, J., concurring) (noting that the plurality’s standard was “so devoid of content

that it produces rather than eliminates certainty . . .”). According to Justice Scalia, the starting

point for Fourth Amendment analysis of the public-sector workplace is to say that the entire

workplace is entitled to constitutional protection. Id. at 731 (Scalia, J., concurring)

(“Constitutional protection against unreasonable searches by the government does not disappear

merely because the government has the right to make reasonable intrusions in its capacity as

employer.”) (emphasis omitted). As such, “the offices of government employees, and a fortiori

the drawers and files within those offices, are covered by Fourth Amendment protections as a

general matter.” Id. (Scalia, J., concurring). Justice Scalia concluded his opinion, however, by

noting that in his view, “government searches to retrieve work-related materials or to investigate

9 Justice Scalia reiterated his disagreement with the plurality’s formulation from O’Connor in his

opinion, concurring in part and concurring in the judgment, in Quon by observing that “I

continue to believe that the ‘operational realities’ rubric for determining the Fourth

Amendment’s application to public employees invented by the plurality . . . is standardless and

unsupported.” Quon, 560 U.S. at 767 (Scalia, J., concurring). Justice Scalia continued by

criticizing the Quon majority’s opinion when he opined that “[d]espite the Court's insistence that

it is agnostic about the proper test, lower courts will likely read the Court's self-described

‘instructive’ expatiation on how the O'Connor plurality's approach would apply here . . . as a

heavy-handed hint about how they should proceed.” Id. at 768 (Scalia, J., concurring).

14

violations of workplace rules—searches of the sort that are regarded as reasonable and normal in

the private-employer context—do not violate the Fourth Amendment.” Id. at 732 (Scalia, J.,

concurring).

2. The Work Place Realities Of The New Jacksonville Department Do Not

Justify The Search Of Officer Campbell’s Locker.

Although the District Court correctly recognized that the O’Connor decision

distinguishes work-related and law enforcement purpose searches, see R. 9, this Court in

O’Connor specifically declined to address the appropriate standard for searches when an

employee is being investigated for criminal misconduct that does not violate a workforce policy.

O'Connor, 480 U.S. at 729 n.* (plurality opinion). The Thirteenth Circuit corrected the District

Court’s conflation of O’Connor by finding that Officer Graham was neither (1) performing a

non-investigatory work related search or (2) part of a commission investigating work-related

misconduct. R. 14. O’Connor states that “[i]mposing unwieldy warrant procedures in such cases

upon supervisors, who would otherwise have no reason to be familiar with such procedures, is

simply unreasonable,” 480 U.S. at 722 (plurality opinion), however, Officer Graham is not a

supervisor, R. 11, and instead is a police officer, inherently familiar with the warrant

requirements. See, e.g. United States v. Hughes, 606 F.3d 311, 316 (6th Cir. 2010) (stating that

“it is not sufficient for a police officer to know the facts that give rise to probable cause or

reasonable suspicion; the officer must also, at the time of the stop, know or reasonably believe

that those facts actually give rise to probable cause or reasonable suspicion”); Anaya v.

Crossroads Managed Care Sys., Inc., 195 F.3d 584, 595 (10th Cir. 1999) (“Police officers are

‘expected to know the subtleties of the probable cause and warrant requirements.’” (quoting

Franz v. Lytle, 997 F.2d 784, 786 (10th Cir. 1993)).

15

b. Officer Campbell Established a Subjective Expectation of Privacy.

Officer Campbell established a reasonable expectation of privacy in his department-

issued locker. See Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); United States v. Carlisle, 614

F.3d 750, 758 (7th Cir.2010) (noting that the burden of proving a reasonable expectation of

privacy rests with the defendant). A reasonable expectation of privacy exists when (1) an

individual exhibits an actual expectation of privacy, and (2) that expectation is one that society is

prepared to recognize as being reasonable. Katz, 389 U.S. at 361 (Harlan, J., concurring).

Additionally, Officer Campbell’s use of his department-issued locker is consistent with

precedent holding that an officer’s use of a department-issued police locker can establish a

reasonable expectation of privacy. See United States v. Speights, 557 F.2d 362 (3d Cir.1977)

(observing that a police officer had a reasonable expectation of privacy in his locker where no

regulation and no police practice had been shown to alert the officer to expect unconsented

locker searches); O'Connor, 480 U.S. at 717 (plurality opinion) (stating that public employees

such as police officers are entitled to a reasonable expectation of privacy in their place of work).

1. Standard For Police Department Searches; Balancing Individual Rights

Against Integrity Interests.

As this Court stated in T.L.O., “[t]o hold that the Fourth Amendment applies to searches

conducted by [public employers] is only to begin the inquiry into the standards governing such

searches . . . what is reasonable depends on the context within which a search takes place.”

T.L.O., 469 U.S. at 337. A determination of the standard of reasonableness applicable to a

particular class of searches requires “balanc[ing] the nature and quality of the intrusion on the

individual's Fourth Amendment interests against the importance of the governmental interests

alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983); Camara, 387

U.S. at 536-37.

16

Although employment in certain fields can restrict individuals’ expectations of privacy

against competing security or integrity interests of that field, Officer Campbell’s status as a

Police Officer did not strip him of Fourth Amendment guarantees. See e.g. Schowengerdt v.

General Dynamics Corp., 944 F.2d 483 (9th Cir. 1991); Biehunik v. Felicetta, 441 F.2d 228 (2d

Cir. 1971); Lowe v. City of Macon, Ga., 720 F. Supp. 994, 997 (M.D. Ga. 1989) aff'd sub nom.

Lowe v. City of Macon, GA, 925 F.2d 1475 (11th Cir. 1991). In Biehunik, the Second Circuit

upheld the reasonableness of the Police Commissioner’s decision commanding 62 city

policemen, upon pain of discharge, to appear in a lineup for possible identification by civilians

who allegedly had been assaulted by certain patrolmen. Biehunik, 441 F.2d 228, 228 (2d Cir.

1971). Decisive to the court was “the substantial public interest in ensuring the appearance and

actuality of police integrity.” Id. at 230. The Court further clarified that “[t]he policeman's

employment relationship by its nature implies that in certain aspects of his affairs, he does not

have the full privacy and liberty from police officials that he would otherwise enjoy.” Id. at 231.

Police Officers—including Officer Campbell—do not abandon their constitutional rights upon

induction into the department, and are not required to tolerate invasions of their freedoms which

are not reasonably related to the special considerations arising from their relationship of

employment. Id.

Similarly, in Schowengerdt, the Ninth Circuit recognized that certain employment, such

as Schowengerdt’s, who as a civilian military engineer employed by the Navy worked on

classified government projects, had a reduced level of privacy in the workplace. Schowengerdt,

944 F.2d at 485. The court concluded that “the operational realities” of Schowengerdt's work

place precluded him from having an objectively reasonable expectation of privacy in his office,

desk or credenza. Id. at 488. While Schowengerdt may have had a subjective expectation of

17

privacy in his credenza, or the manila envelope in it, that expectation was not objectively

reasonable. Id. All employees at this facility were well aware of its extremely tight security

procedures—upon entering and leaving the building, and in the innermost recesses of their

offices employees were constantly being searched and surveilled for compliance with security

precautions in a manner that would be considered unduly invasive in a more conventional work

place—this knowledge and routine practice negated Schowengerdt’s privacy expectations. Id.

While Officer Campbell has the unique status as a Police Officer, that status does not

negate his Fourth Amendment protections. See, e.g. Garrity v. New Jersey, 385 U.S. 493, 500

(1967) (noting although police officers “are not relegated to a watered-down version of

constitutional rights. . . .”); Biehunik, 441 F.2d at 228. The District Court misapplied police

officer rights relying on Kirkpatrick v. City of Los Angeles, R. 9., where the Seventh Circuit

narrowly addressed an officer strip search that was work-related, purely investigatory and not for

the purpose of criminal prosecution. Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 487 (9th

Cir. 1986). Officer Graham’s search was not work-related or investigatory but only for the

purpose of criminal prosecution, without a warrant, R. 7., and in violation of Officer Campbell’s

rights as a Police Officer.

2. By Placing A Personal Lock On His Locker, Officer Campbell Further

Manifested His Subjective Privacy Expectations.

Just as when one shuts a phone booth, indicating to the world an expectation of privacy

Katz, 389 U.S. at 361, Officer Campbell’s use of a personal lock on his locker also indicates to

the world his expectation of privacy in his locker. R. 7. The Fourth Amendments protections are

fluid, an individual can preserve something as private but when the item is exposed to the public

it is no longer subject to Fourth Amendment protections. Katz, 389 U.S. at 351; see Lewis v.

United States, 385 U.S. 206, 210 (1966) (observing that an undercover agent who was invited

18

inside Lewis’s home to purchase narcotics did not violate defendants Fourth Amendment rights

as the home was converted into a commercial space); see also United States v. Lee, 274 U.S.

559, 563 (1927) (noting that when objects, such as alcohol are in clear observation of Coast

Guard patrol boats, those items lose Fourth Amendment protections).

Likewise, the court in Speights determined that when Officer Speights placed a personal

lock on his locker, he took an affirmative step to manifest his expectation of privacy. Speights,

557 F.2d 362, at 363. In Speights, the court noted that just because the lockers of the police

officers could be opened with a master key did not make the officers’ expectation of privacy in

their lockers unreasonable. Id. at 364. Supporting this finding by the Speights court was the fact

that the department lacked a policy regarding personal lock usage of department lockers. Id. at

363. Similarly, the record here is void of a departmental policy from the New Jacksonville Police

Department concerning personal lock use; however, it is clear that Officer Campbell

demonstrated his expectation of privacy in his locker by replacing the department-issued lock

with a personal lock. R. 7.

c. Officer Campbell Established an Objective Expectation of Privacy in his Locker.

The District Court erroneously concluded that Officer Campbell’s locker usage failed to

comport with objective expectations of privacy by finding that his use of a personal lock, while

being cognizant that most department lockers were secured using government-issued locks,

negated an objective expectation of privacy. R. 10. The District Court limited its evaluation of

Officer Campbell’s expectation of privacy by only considering the fact that the New Jacksonville

Police Department lockers were government property and generally had government-issued

locks. R. 10. However, in the absence of policy or notice to the contrary, the Thirteenth Circuit

19

correctly decided that because Officer Campbell kept his personal effects in the locker, he had an

objectively reasonable belief in privacy. R. 14-15.

1. The Absence of Prior Departmental Notice Or Contradictory Policies May

Solidify an Individual’s Expectation of Privacy.

Policies and regulations may destroy a public employee's expectation of privacy in a

government workplace, however, an agency that has contradictory or unclear policies and

directives, may actually assist an employee in establishing an expectation of privacy. Bryan R.

Lemons, Public Privacy: Warrantless Workplace Searches of Public Employees, 7 U. PA. J. LAB.

& EMP. L. 1, 9 (2004); see Zaffuto v. City of Hammond, 308 F.3d 485, 489 (5th Cir.) on reh'g in

part, 313 F.3d 879 (5th Cir. 2002) (noting that where a police officer sued his supervisor for

illegally recording a telephone call, the supervisors claim that “a department policy that calls

would be taped” made it unobjectively reasonable for the officer “to expect privacy in making a

personal phone call from work”); Haynes v. Office of Attorney Gen. Phill Kline, 298 F. Supp. 2d

1154, 1157 (D. Kan. 2003) (observing where two files, public and private were conflated,

whether Haynes had an expectation of privacy remained an open question based on the

contradictory information).

2. The Absence of a Prior New Jacksonville Police Department Policy

Solidified Officer Campbell’s Objective Expectation of Privacy in his

Department-Issued Locker.

The Thirteenth Circuit correctly held, “there was no stated policy that would create an

expectation of searches of department lockers . . . .” R. 16. In light of the lack of policy within

the New Jacksonville Police Department, Officer Campbell’s action in securing his locker with a

personal lock, beyond the department-issued lock, as the Thirteenth Circuit found, indicated a

manifestation of his expectation of privacy. R. 16. When a policy specifically noting privacy

limitations is in place, there is a presumption of a diminished expectation of privacy. See, e.g.

20

Schowengerdt, 944 F.2d 483; United States v. Bunkers, 521 F.2d 1217 (9th Cir. 1975); Chicago

Fire Fighters Union, Local 2 v. City of Chicago, 717 F. Supp. 1314(N.D. Ill. 1989); Shaffer v.

Field, 339 F.Supp. 997 (C.D.Cal.1972); United States v. Donato, 269 F.Supp. 921

(E.D.Pa.1967).

The District Court’s reliance on Bunkers, R. 8, is misplaced because the search in

Bunkers involved an investigatory work-related search, as compared to Officer Graham’s

criminally motivated search. Id. Bunkers, a pre-O’Connor decision, involved a postal worker

whose schedule correlated with the disappearance of parcels at the postal office, as noticed by

inspectors. Bunkers, 521 F.2d at 1218. Prior to the search of Bunkers’s locker, postal inspectors

saw Bunkers take a parcel from her assigned work area into the women's locker room and within

one minute, return from the locker room without the parcel. Id. Based on this observation, her

locker was searched three times and several postal packages were found within her locker. Id. at

1219. The locker in question was government property within the post office building and was

furnished to Bunkers as an incident of her employment, used for her convenience, and subject to

search by both her supervisors and postal inspectors. Id.

While the Bunkers decision cites similar underlying principles of public interest in the

protection of the mail—an industry notoriously plagued by theft—which restricted Bunkers

private interest in the highly regulated locker, id., this public interest does not obliterate Fourth

Amendment protections. See Biehunik, 441 F.2d 228, at 231 (noting policemen do not abandon

their constitutional rights upon induction into the department). Unlike in Bunkers, where the

individuals who opened Bunkers’s locker were affiliated with the investigation, 521 F.2d at

1218, Officer Graham was unaffiliated with the investigators conducting the standard post-

shooting investigation of Officer Campbell. R. 7.

21

Moreover, the investigation in Bunkers was an investigatory search related to ongoing

work-related theft, 521 F.2d at 1218, contrarily, Officer Graham admitted his motivation was

geared towards criminal prosecution, as well as to “force that lying, racist asshole to tell the truth

for once.” R. 7. Officer Graham did not see Officer Campbell place his body camera in his

locker; Officer Graham merely broke into Officer Campbell’s locker on a hunch, id., without

probable cause, a warrant or exigent circumstances. See e.g. Los Angeles Police Protective

League v. Gates, 579 F. Supp. 36, 45 (C.D. Cal. 1984) (observing where an internal department

sting to combat police corruption required the immediate black light scan of officers’ hands did

not constitute a Fourth Amendment search); see also Terry v. Ohio, 392 U.S. 1, 20 (1968)

(noting intrusions upon constitutionally guaranteed rights must be based on more than

inarticulate hunches, and simple good faith on part of officer is not enough). Lastly, Bunkers was

informed and accepted the regulatory inspection of her locker noted explicitly in the Postal

Manual. 521 F.2d at 1220. No such notice limiting privacy expectations occurred at the New

Jacksonville Police Department and Officer Campbell, therefore, did not have a diminished

expectation of privacy in his locker.

d. The Lack of Prior Locker Searches Failed To Constitute A Routine Practice.

The Thirteenth Circuit correctly held that the New Jacksonville Police Department—

having conducted one prior random search—lacked a history of searching officers’ lockers. R.

15. In O'Connor, this Court recognized that “[p]ublic employees' expectations of privacy in their

offices, desks, and file cabinets . . . may be reduced by virtue of actual office practices and

procedures . . . .” O'Connor, 480 U.S. 709, 717; see also Gillard v. Schmidt, 579 F.2d 825, 829

(3d Cir. 1978) (noting an employer may conduct a search in accordance with a regulation or

practice that would dispel in advance any expectations of privacy).

22

In the analogous Speights decision, the Third Circuit held “[o]nly if the police department

had a practice of opening lockers with private locks without the consent of the user would

Speights privacy expectation be unreasonable.” Speights, 557 F.2d 362 at 364. The District Court

concluded the fact that the one New Jacksonville Police Department search occurred prior to

Officer Campbell actually joining the department was immaterial. R. 9. The absence of routine

practices, especially in light of the one search occurring prior to Officer Campbell joining the

New Jacksonville Police Department validates Officer Campbell’s expectation of privacy. See,

e.g., Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001) (Sotomayor, J.) (finding that an

employee had a reasonable expectation of privacy in the contents of office computer because,

inter alia, his employer did not have a “general practice of routinely conducting searches of

office computers”); Schowengerdt, 944 F.2d at 488 (noting that employees routinely where

searched upon entering and leaving the building as well as within the confines of the office,

which reduced their expectation of privacy); Shaffer v. Field, 339 F.Supp. 997 (C.D.Cal.1972),

aff'd, 484 F.2d 1196 (9th Cir.1973) (noting the officer had no justifiable expectation of privacy in

his locker, amongst other factors on at least three occasions in the past, deputies' lockers had

been searched by commanders without the deputies' permission).

e. Identifying the Purpose of a Search in the Public-Sector Workplace is Essential in

Assessing the Search’s Reasonableness Under the Fourth Amendment.

Given the Fourth Amendment’s general prohibition against unreasonable searches and

seizures, the Thirteenth Circuit was correct to note that when assessing the reasonableness of a

search under the Fourth Amendment, “[t]he purpose of the search is critical.” R. 16. This is

especially true in the public sector workplace where interactions between co-employees and

supervisors are often quite fluid. See, e.g. Rauen v. U.S. Tobacco Mfg. Ltd. P’ship, 319 F.3d 891,

897 (7th Cir. 2003) (discussing how the “central components of Rauen’s job” required her to be

23

at the office interacting with coworkers and contractors); Spain v. Gallegos, 26 F.3d 439, 448-49

(3d Cir. 1994) (noting how “job related interaction” between many supervisors and employees is

a “frequent but necessary” part of workplace realities). Due to these workplace realities, that are

an essential part of the public-sector workplace, this Court attempted to fashion a standard in

O’Connor that balanced the need for legitimate interactions between employees and supervisors

with the desire to protect an individual’s expectation of privacy. See O’Connor, 480 U.S. at 725

(plurality opinion); id. at 732 (Scalia, J., concurring). As such, even though this Court failed to

establish a definitive standard for assessing whether or not the warrantless intrusion of a

government employee’s office was reasonable under the Fourth Amendment, a majority of the

Court in O’Connor agreed that a government employer or supervisor could search an employee’s

office without needing to get a warrant or upon obtaining probable cause. See O’Connor, 480

U.S. at 725 (plurality opinion); id. at 732 (Scalia, J., concurring).

1. The “Special Needs” Exception for Public-Sector Workplace Searches.

One recognized exception to the general requirement of having a warrant or probable

cause to initiate a search is the “special needs” exception. See Chandler, 520 U.S. at 313-14

(citing Skinner, 489 U.S. at 613-14). This doctrine, “which has been used to uphold certain

suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the

general rule that a search must be based on individualized suspicion of wrongdoing.” Ferguson

v. City of Charleston, 532 U.S. 67, 79 n.15 (2001) (quoting Edmond, 531 U.S. at 54 (Rehnquist,

C.J., dissenting)). The “special needs” exception operates by providing that, “in limited

circumstances, a search unsupported by either warrant or probable cause can be constitutional

when ‘special needs’ other than the normal need for law enforcement provide sufficient

24

justification.” Id. at 74 n.7 (2001) (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653-53

(1995)).

This Court has applied the “special needs” exception in the workplace context. Quon, 560

U.S. at 760-61 (citing O’Connor, 480 U.S. at 725 (plurality opinion); O’Connor, 480 U.S. at 732

(Scalia, J., concurring)). In assessing the reasonableness of a proffered “special need,” a key

factor for courts has been to determine if “the ‘special need’ that was advanced as a justification

for the absence of a warrant or individualized suspicion was one divorced from the

[Government’s] general interest in law enforcement.” Ferguson, 532 U.S. at 79. This is because,

“in looking to ascertain whether the investigation is criminal in nature, the proper focus is not on

the positions or capabilities of the persons conducting the search, but rather the reason for the

search itself.” Wiley v. Dep’t of Justice, 328 F. 3d 1346, 1352 (Fed. Cir. 2003) (citing United

States v. Fernandez, 272 F.3d 938, 943 n.3 (7th Cir.2001)). Thus, where the rationale for a

search is removed from a criminal or punitive purpose, a government employer’s search of an

area where an employee has a reasonable expectation of privacy may be justified under the

“special needs” exception. See Quon, 560 U.S. at 765-66 (concluding that an employer’s

warrantless search of the text messages on an employee’s work provided pager was reasonable

under the Fourth Amendment).

2. Application of the “Special Needs” Analysis in the Public-Sector.

This Court has applied the “special needs” test in the wake of O’Connor on several

occasions. See, e.g., Quon, 560 U.S. at 764-65; Ferguson, 532 U.S. at 84-85. Similarly, the

application of the “special needs” analysis by the circuit courts of appeals gives clarity to how to

searches by government employers and supervisors in the public-sector should be conducted

following this Court’s decision in O’Connor. See, e.g. True v. Nebraska, 612 F.3d 676, 682 (8th

25

Cir. 2010); Wiley, 328 F.3d at 1353; United States v. Jones, 286 F.3d 1146, 1148-49 (9th Cir.

2002).

i. Application of the “Special Needs” Exception by This Court.

In Ferguson, this Court addressed whether a practice by the City of Charleston, South

Carolina and its hospital of performing urinalysis tests on expectant mothers and then sharing the

results of those tests—if the expectant mother tested positive for cocaine—with law enforcement

was reasonable as a “special need” under the Fourth Amendment. See, 532 U.S. at 69-72. In

evaluating the policy, this Court noted how, unlike many of this Court’s past “special needs”

cases, see id. at 79, “the central and indispensable feature of the policy from its inception was the

use of law enforcement to coerce the patients into substance abuse treatment.” Id. at 80. In

justifying the policy, the City argued “that their ultimate purpose—namely, protecting the health

of both mother and child—[was] a beneficent one.” Id. at 81. Rejecting this argument, this Court

noted that “[w]hile the ultimate goal of the program may well have been to get the women in

question into substance abuse treatment and off of drugs, the immediate objective of the searches

was to generate evidence for law enforcement purposes in order to reach that goal.” Id. at 83-84

(emphasis in original) (footnote omitted). Because the purpose of the City’s plan was to

criminally punish expectant mothers who used cocaine during their pregnancy, this Court

concluded that the policy, “given the extensive involvement of law enforcement officials at every

stage of the policy, . . . simply does not fit within the closely guarded category of ‘special

needs.’” Id. at 84. This Court’s decision in Ferguson, therefore, is an example that (1) actions by

public-sector employers or (2) policies set up by public-sectors employers, which are primarily

designed to criminally punish individuals, are subject to “[t]he Fourth Amendment’s general

prohibition against nonconsensual, warrantless, and suspicionless searches . . . .” Id. at 86.

26

In Quon, this Court applied the “special needs” exception to determine if the search of a

police officer’s text messages on his work-issued pager was reasonable under the Fourth

Amendment. Quon, 560 U.S. at 750-52. After issuing the pagers to officers, the City of Ontario,

California noted that “[a]lthough the [City’s] Computer Policy did not cover text messages by its

explicit terms, the City made clear to employees, including Quon, that the City would treat text

messages the same way as it treated emails.” Id. at 751. Officers, including Officer Quon, were

told the same at a staff meeting with one of their supervisors and through a memorandum. Id. at

751-52. In evaluating the reasonableness of the policy, this Court concluded that “special needs”

were shown and that the City’s search of Officer Quon’s text messages was reasonable under

both tests set forth by the plurality and Justice Scalia in O’Connor. Id. at 764-65.

ii. Application of the “Special Needs” Exception by Circuit Courts of

Appeals.

In True, the Eighth Circuit addressed whether the random searches of employee vehicles

in a parking lot outside of the prison’s confines violated the Fourth Amendment rights of those

employees. 612 F.3d at 678. Applying the O’Connor plurality’s balancing test, the court

concluded that after weighing the interests of the prison employee’s privacy interest in his

vehicle against the “interests of the correctional institution in maintaining security, it [was]

reasonable under all the circumstances to search, by ‘systematic random selection,’ employee

vehicles in prison parking lots to which inmates have unsupervised access.” Id. at 682. In Wiley,

where a prison official received an anonymous tip claiming that a prison employee kept a

weapon concealed in his vehicle while on prison property, the Federal Circuit addressed whether

the warrantless search of the employee’s car ten months later was reasonable. 328 F.3d at 1348-

49. Even though the court recognized “the government's interest in controlling the entry of guns

and other dangerous weapons into the [federal prison] is readily appreciated . . . ,” id. at 1353

27

(citing Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), the court balanced the interests of the

parties to conclude that the government lacked reasonable grounds to demonstrate a “special

need” that would allow the warrantless search of Wiley’s vehicle. Id. at 1357.

United States v. Jones, required the Ninth Circuit to consider whether workplace searches

by a government employer, designed to help the entity comply with a subpoena, satisfied the

“special needs” exception under O’Connor. 286 F.3d at 1148-49. Specifically, the suit in Jones

arose when the City Attorney for San Francisco gave federal investigators the authority to search

the offices of several employees at the San Francisco Human Rights Commission (HRC). Id.

One of the offices searched, and which the HRC had to unlock a door to let the investigators in,

was Jones’s, where eventually the government found unrelated evidence of criminal misconduct.

Id. at 1149. Applying the plurality’s balancing test from O’Connor, the Ninth Circuit affirmed

the suppression of the evidence against Jones by concluding that the search by the federal

investigators was not ‘work-related,’ as well as because the search’s “immediate goal . . . was to

secure documents relevant to a criminal investigation that could be admissible in subsequent

criminal prosecutions.” Id. at 1151-52.

Similarly, the Tenth Circuit in Narotzky, addressed whether the workplace search of

several doctors’ lockers, by personnel at the Medical Center they were employed by, violated

their Fourth Amendment right to privacy when staff reports and surveillance tapes of hospital

common areas showed medical staff “leaving the hospital with various equipment, bags, and

boxes.” 610 F.3d at 562. After balancing the interests of the doctors and the Medical Center, the

Tenth Circuit concluded that the searches of the doctors’ lockers did not violate the Fourth

Amendment because under the circumstances, “the Medical Center acted reasonably as it was

searching to ensure that no additional supplies were removed from their facility and that any

28

stolen items were recovered as soon as possible.” Id. at 568. A key fact for the Narotzky court

was, unlike other “special needs” cases, the fact that if the Medical Center’s security personnel

did not immediately initiate their search, they would risk losing the medical supplies for good as

the agreement between the doctors and the Medical Center was set to terminate on the day the

security personnel received the tip that medical supplies went missing. See id. at 562.

Recently, the Third Circuit addressed the reasonableness of a strip search of two officers

subsequent to an allegation that the officers stole money following their frisk of a man they

believed was engaged in an illegal drug transaction. Gwynn v. City of Philadelphia, 719 F.3d

295, 297 (3d Cir. 2013). Upon their return to headquarters, the appellants were sent to their

captain’s office where they waited and eventually were searched by their supervisors, and were

asked to remove their jackets and vests, pull up their pants legs, pull down their socks, and open

their wallets. Id. Following the officers’ release from their captain’s office, they returned to their

lockers, which “appeared as though they had been searched.” Id. at 298. Applying the balancing

test from the O’Connor plurality, the Third Circuit concluded that because the search was based

on individualized suspicion, work related, and reasonably related to its purpose, the search of the

officers did not violate the Fourth Amendment. Id. at 303-04. Important to the Third Circuit’s

conclusion was its view that “[t]he need for oversight and corrective action is particularly acute

in police departments. This is because officers ‘exercis[e] the most awesome and dangerous

power that a democratic state possesses with respect to its residents—the power to use lawful

force to arrest and detain them.’” Id. at 303 (quoting Policemen's Benevolent Ass'n of N.J., Local

318 v. Washington Twp., 850 F.2d 133, 141 (3d Cir.1988)).

29

f. The Purpose of the “Search” by Officer Graham was to Punish Officer Campbell

and Violated Officer Campbell’s Fourth Amendment Rights.

As the Thirteenth Circuit properly concluded, “a warrant was required in order to conduct

th[e] search [of Officer Campbell’s locker].” R. 17. Applying the balancing test set forth by the

O’Connor plurality, as well as the test from Justice Scalia’s concurrence, makes it clear that

Officer Graham and the New Jacksonville Police Department lacked the requisite “special

needs” in order to effectuate a search of Officer Campbell’s locker. As Officer Graham admitted,

his motivation in breaking into Officer Campbell’s locker to search for the body camera was to

“force that lying, racist asshole to tell the truth for once.” R. 7. The undeniable connotation of

this statement, in light of Officer Graham’s additional admissions that (1) “he believed Officer

Campbell was likely to destroy or dispose of the [body] camera if given the opportunity,” id.,

and (2) he was “angered by Officer Campbell’s comments about Mr. Jennings not being able to

‘breed,’” id., is that Officer Graham broke into Officer Campbell’s locker with the purpose of

finding the body camera and making sure it became evidence in a trial against Officer Campbell.

As the Thirteenth Circuit additionally noted, it would be “clear, especially to a fellow police

officer, that if Officer Campbell was lying about the events of June 19, a criminal investigation

and prosecution were sure to follow.” R. 17.

The actions of Officer Graham, especially in the absence of any sort of policy by the New

Jacksonville Police Department (whether official or unofficial) to justify the warrantless search

of Officer Campbell’s locker makes this case similar to Jones. See 286 F.3d at 1151-52. This

similarity comes from the fact “the immediate goal,” see id. at 1152, of Officer Graham’s search

of Officer Campbell’s locker, “was to secure [evidence] . . . relevant to a criminal investigation

that could be admissible in subsequent criminal prosecutions.” Id. The search by Officer Graham

in this case is also analogous to the search that this Court found to be unconstitutional in

30

Ferguson because the “immediate objective of [Officer Graham’s] search[] was to generate

evidence for law enforcement purposes . . . .” 532 U.S. at 83. This Court should follow its lead

from Ferguson and likewise conclude that Officer Graham’s search was subject to “[t]he Fourth

Amendment’s general prohibition against nonconsensual, warrantless, and suspicionless searches

. . . .” Id. at 86.

II. UNDER 18 U.S.C § 249, OFFICER CAMPBELL DID NOT COMMIT A HATE

CRIME IN THE COURSE OF DUTY WHEN THE MOTIVATING FACTOR FOR

HIS ACTIONS WERE NOT ATTRIBUTED TO THE RACE OF THE MR.

JENNINGS.

a. History Underlying Congressional Enactment of the Hate Crimes Prevention Act.

Congress passed the Shepard-Byrd Act following the brutal murders of Matthew Shepard

and James Byrd, Jr in 2009. See Matthew Trout, Federalizing Hate: Constitutional and Practical

Limitations to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 52

AM. CRIM. L. REV. 131, 137 (2015) [hereinafter Trout]. The above Act departed from previous

approaches taken by Congress in the 1990s, which provided the federal government with no

power to investigate and prosecute hate crimes. Id. In 1998, the gruesome murders of Matthew

Shepard and James Byrd, Jr. made national headlines. See Angela D. Moore, Method of Attack:

A Supplemental Model for Hate Crime Analysis, 90 IND. L.J. 1707, 1718 (2015) [hereinafter

Moore]. The “[o]utcry after these murders led Congress to expand the federal government’s

ability to address hate crimes by updating the federal hate crime statue.” Id. at 1720. “The

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (‘HCPA’) broadens federal

hate crime law to incorporate ‘violence motivated by the . . . gender, sexual orientation, gender

identity, or disability of the victim.’” Carter T. Coker, Hope-Fulfilling or Effectively Chilling?

Reconciling the Hate Crimes Prevention Act with the First Amendment, 64 VAND. L. REV. 271,

273 (2011) [hereinafter Coker] (internal citation omitted).

31

There are two main provisions contained in the criminal portion of the HCPA, codified at

18 U.S.C. § 249. See 18 U.S.C. § 249 (2009). Section 249(a)(1)10

under the HCPA, which is

pertinent to the instant case, “makes it a crime willfully to cause bodily injury to another because

of that person’s ‘actual or perceived race, color, religion, or national origin.’” United States v.

Maybee, 687 F.3d 1026, 1030 (8th Cir. 2012) (quoting 18 U.S.C. § 249(a)(1)). Section 249(a)(2)

similarly criminalizes bodily injury—subject to the same requirements found in § 249(a)(1)—but

allows for biased actions motivated by prejudice due to an individual’s gender, sexual

orientation, gender identity, or disability as the basis for prosecution under the statute. See 18

U.S.C.§ 249(a)(2). The causal element under the HCPA requires the Government to establish

but-for causation when proving the motivating factor for the actor’s conduct. United States v.

Miller, 767 F.3d 585 (6th Cir. 2014).

b. The Statutory Language “Because Of” Used in 18 U.S.C § 249 Requires a Showing

of But-For Causality When Attributed to the Motive Behind an Actor’s Actions.

The HCPA, 18 U.S.C § 249(a)(1) in particular, makes it a felony to “willfully cause

bodily injury” to any person because of that person’s race. 18 U.S.C § 249(a)(1); see also United

States v. Hatch, 722 F.3d 1193, 1195 (10th Cir. 2013). The crime contains a motive element that

requires the government “to show that the defendant attacked the victim ‘because of’ the victim’s

‘actual or perceived’” race. Miller, 767 F.3d at 591. It is a well-established proposition that the

law of causation consists of two interrelated parts, the actual cause and the legal cause. Burrage

v. United States, 134 S. Ct. 881, 887 (2014) (citing H. HART & A. HONORE, CAUSATION IN THE

LAW 104 (1959)) (“The law has long considered causation a hybrid concept, consisting of two

10

18 U.S.C § 249(a)(1) states that “[w]hoever, whether or not acting under color of law, willfully

causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or

an explosive or incendiary device, attempts to cause bodily injury to any person, because of the

actual or perceived race, color, religion, or national origin of any person shall be imprisoned not

more than 10 years, fined in accordance with this title, or both.”

32

constituent parts: actual cause and legal cause.”). Thus, “[w]hen a crime requires ‘not merely

conduct but also a specified result of conduct,’ a defendant generally may not be convicted

unless his conduct is ‘both (1) the actual cause, and (2) the “legal” cause (often called the

“proximate cause”) of the result.’” Burrage, 134 S. Ct. at 887 (quoting 1 W. LAFAVE,

SUBSTANTIVE CRIMINAL LAW § 6.4(a), pp. 464-66 (2d ed. 2003)).

Given that actual cause is at issue in the case at bar, it is important to recognize this

Court’s declaration that “‘statutes using the term “because of”’ require a showing of “but-for

causality.”’” Miller, 767 F.3d at 591 (quoting Burrage, 134 S.Ct. at 889); see also State v.

Hennings, 791 N.W.2d 828, 833–35 (Iowa 2010) (requiring racial animus to be a “but for” cause

of statutes prohibiting offenses against another person that are motived on account of that

person’s race). It does not matter whether “‘because of’ refers to an easier-to-show prohibited act

or a harder-to-prove prohibited motive,” because the Supreme Court maintains this requirement

regardless. Miller, 767 F.3d at 591; see Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,

2528 (2013) (stating that the “desire to retaliate” must be a but for cause of an adverse

employment action); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (recognizing an

employee’s age in adverse employment actions must constitute but for causation). The term

“because of” “imposes a requirement of actual causality, i.e., proof ‘that the harm would not

have occurred’ in the absence of—that is, but for—the defendant's conduct.’” Burrage, 134 S.

Ct. at 884 (citing Nassar, 133 S. Ct. at 2524); see also RESTATEMENT (SECOND) OF TORTS §

432(1) (1964) (negligence); cf. RESTATEMENT (SECOND) OF TORTS § 435(a) cmt. a (1964) (legal

cause for intentional harm).

In United States v. Miller, the Sixth Circuit analyzed the statutory language “because of”

as used in the HCPA, and determined but-for causality is required in order to faithfully follow

33

binding Supreme Court precedent. 767 F.3d at 591-94; see also Burrage, 134 S.Ct. at 892

(implementing but-for causality for statutory terms of “results from” and “because of”). On

appeal from United States v. Mullet11

, the defendants, members of an Amish community, were

convicted under the HCPA for forcibly trimming the beards and hair of fellow Amish members.

Miller, 767 F.3d at 589-90. The defense argued that interpersonal issues and family strife was the

motive behind the attacks, while the government asserted that the religion and faith of the

victims prompted the assaults. Id. at 591. The central issue in Miller was the causality

requirement in the term “because of” as used in the HCPA. Id. at 589. The Sixth Circuit rejected

the government’s argument that the faith of the victims must be a “significant motivating factor”

in the assaults, and stated “but-for” causality is required where “because of” is used in a statute.

Id. Therefore, relying on this Court’s recent decision in Burrage, the Sixth Circuit reversed the

convictions of the defendants as the jury instruction on causality made by the district court was

in error and was not harmless. Id. (citing Burrage, 134 S.Ct. at 887-89).

1. Any Subjective Beliefs Held By Officer Campbell Do Not Demonstrate that

a But-For Causal Connection Existed Between Any Perceived Racial

Animus and Officer Campbell’s Actions During the Stop of Mr. Jennings.

In the instant case, Officer Campbell’s beliefs—while racist in nature—do not satisfy the

but-for causality element under the HCPA which requires that Mr. Jennings’s race be a motive to

Officer Campbell’s actions; the current evidence does not support the latter. Officer Campbell

pulled Mr. Jennings over for a failure to signal while changing lanes. R. 3. While Officer

Campbell and Mr. Jennings exchanged words, the matter intensified when Mr. Jennings closed

his Mercedes car door, re-started the engine, and began revving the engine. R. 4. Officer

11

Miller is the case which the Sixth Circuit took up on appeal and was originally tried by the

United States District Court for the Northern District of Ohio, Eastern Division under the name

United States v. Mullet. See United States v. Mullet, 868 F.Supp. 2d 618 (N.D. Ohio 2012).

34

Campbell’s action of grabbing the steering wheel of Mr. Jennings’s Mercedes to stop a potential

escape (although officers such as Officer Campbell are trained generally not to reach into a car

due to the potential danger of being dragged by the car) was the prospective danger that

warranted him to draw his weapon. R. 6. Whether discharging his weapon by accident or to

prevent further injury from getting dragged, Officer Campbell’s motive for acting was not

because of Mr. Jennings’s race. See R. 5-6. The District Court gave unfounded weight to the

statements made by Officer Campbell after the shooting to establish that his original actions were

motivated by Mr. Jennings’s race. R. 6. These statements, which the District Court believed

showed Officer Campbell’s racist beliefs, were the effect of his action of shooting Mr. Jennings,

not the motive behind Officer Campbell’s action itself. R. 17.

2. The District Court’s Use of the Significant Motivating Factor Test, as

Related to Causation, Offends This Court’s Clear Precedent Requiring But-

For Causation When Congress Explicitly Used the Language “Because Of”

in the HCPA.

The Government requests this Court reverse its decision in Burrage, and declare that a

person’s actual or perceived race need only be a “significant motivating factor for a defendant’s

action,” even if other reasons are attributed to committing the act. Contra Miller, 767 F.3d at

591; see Maybee, 687 F.3d at 1032 (stating motive need only be a significant factor of

defendants conduct); United States v. McGee, 173 F.3d 952 (6th Cir.1999) (observing so long as

racial animus is a substantial reason for a defendant's conduct, other motivations are not factors

to be considered); United States v. Ebens, 800 F.2d 1422 (6th Cir.1986) (applying substantial

motivating factor for violating civil rights of victim); United States v. Bledsoe, 728 F.2d 1094

(8th Cir.1984) (declaring substantial motivating factor must be race for interference with

victim’s use of state facility). Numerous state courts have adopted similar requirements for

causality. See People v. Jennings, 237 P.3d 474, 496 (Cal. 2010) (establishing substantial factor

35

causation for torture statute); People v. Bailey, 549 N.W.2d 325, 334–36 (Mich. 1996) (stating

criminal liability to party for harm need only be contributory cause that was a substantial factor

in producing harm); State v. Christman, 249 P.3d 680, 687 (Wash. Ct. App. 2011) (defining

“results in” to require an application of proximate cause).

The Eighth Circuit established in Maybee, that under the HCPA the race or national

origin of a victim need only be a “substantial motivating factor” for the actor’s conduct. 687 F.3d

at 1032. In Maybee, the defendants yelled racial epithets toward the victims while stopped at a

gas station, and decided to drive after the victims to “beat the shit out of them.” Id. at 1029. The

defendants then rammed the victim’s sedan multiple times until the sedan crashed and burst into

flames. Id. The defendants’ argued that an independent reason existed for their pursuit of the

victims, thus claiming that their actions were not motivated “because of the race or national

origin” of the victims. Id. at 1032. The Eighth Circuit rejected this rationale and stated that a

“reasonable jury could have concluded that the race or national origin of [ ] occupants of [the]

sedan was ‘a substantial motivating factor’ in [the defendants’] decision to pursue the sedan and

force it off the highway.” Id.

Maybee predated this Court’s decision in Burrage and “overlook[ed] the reality that none

of the [cases cited in Maybee] addressed the possibility that ‘because of’ required but-for

causation.” Miller, 767 F.3d at 593. It is uncontested that history has led “the phrase ‘because of’

[to mean] ‘a motivating factor,’ or ‘a substantial reason,’ or ‘a significant factor,’ or ‘solely

because of,’ or the ‘but-for’ cause of.” United States v. Jenkins, No. 12-15-GFVT, 2013 WL

3338650, at *5 (E.D. Ky. July 2, 2013), aff'd 13-5902 (6th Cir. Sept. 12, 2014), aff'd 13-5903

(6th Cir. Sept. 12, 2014). “There may very well be other motivations, significant, substantial or

otherwise, but none of them are enough to incite a physical assault,” and “does not require the

36

specific intention to violate federal law to be, ‘the first among several evil intents.’” Id. (quoting

Ebens, 800 F.2d at 1429). In response to this uncertainty, as to what constitutes a substantial

motivating factor, the Miller court queried whether one of three reasons makes a motive

significant, or possibly one of ten? Miller, 767 F.3d at 592. As this Court noted, “[u]ncertainty of

[this] kind cannot be squared with the beyond-a-reasonable-doubt standard applicable in criminal

trials or with the need to express criminal laws in terms ordinary persons can comprehend.”

Burrage, 134 S.Ct. at 892; see also id. at 890 (“‘[N]o case has been found where the defendant's

act could be called a substantial factor when the event would have occurred without it.’” (quoting

W. KEETON, D. DOBBS, R. KEETON, & D. OWEN, PROSSER AND KEETON ON LAW OF TORTS § 41

267 (5th ed. 1984) (footnote omitted))). Thus, “[e]ven if there were some doubt over which of

these definitions Congress had in mind, which [the Sixth Circuit] d[id] not think there [was], the

rule of lenity would require [the court] to adopt the more lenient of the two in a criminal case.”

Miller, 767 F.3d at 592.

3. A Fine Line Exists Between the Regulation of Bias Motivated Conduct

Where Concerns for Offending the First Amendment are Balanced by

Evaluating the Reasonableness of an Officer’s Actions Using a But-For

Causality Standard.

The “construction of a criminal statute must be guided by the need for fair warning, it is

rare that legislative history or statutory policies will support a construction of a statute broader

than that clearly warranted by the text.” Crandon v. United States, 494 U.S. 152, 160 (1990).

Thus, to be convicted under the HCPA, a person’s actual or perceived race must be the reason

for a defendant’s actions. See Miller, 767 F.3d at 592. To articulate the requirement differently,

“this requires that ‘bodily injury’ would not have happened but for . . .” the “race of the victim.”

Id. at 603 (Sargus, J., dissenting).

37

The Thirteenth Circuit correctly noted that the race of Mr. Jennings was not what

motivated the interaction between him and Officer Campbell. R. 17. The way the District Court

analyzed the evidence before it was not the only way—and in fact, was an incorrect way—to

read the evidence: “it [was] merely the best way to read the evidence—for the prosecution.”

Miller, 767 F.3d at 601. An officer may have charges permissibly brought against him or her

under §249 because the statute allows for the prosecution of “[w]hoever, whether or not acting

under color of law. . . .” 18 U.S.C. §249(a)(1). However, the government has the burden of

proving the causation element under the statute. “Any standard that requires less than but-for

causality, moreover, treads uncomfortably close to the line separating constitutional regulation of

conduct and unconstitutional regulation of beliefs.” Miller, 767 F.3d at 592.

i. Under the HCPA, the Required But-For Causality Standard Ensures

Proper Punishment of Bias Motivated Conduct and Thus Does Not Offend

the First Amendment.

Bigoted conduct “inflict[s] greater individual and societal harm”, and thus the

government may punish “bias inspired conduct” without offending the First Amendment.

Wisconsin v. Mitchell, 508 U.S. 476, 487-88 (1993); see also Miller, 767 F.3d at 592. However,

“punishment of a defendant's ‘abstract beliefs,’ no matter how ‘morally reprehensible’ they may

be, violates the First Amendment.” Miller, 767 F.3d at 592 (citing Dawson v. Delaware, 503

U.S. 159, 167 (1992)). Therefore, “requiring a causal connection between a defendant's biased

attitudes and his impermissible actions ensures that the criminal law targets conduct, not bigoted

beliefs that have little connection to the crime.” Miller, 767 F.3d at 592.

Providing further insight to an intended “but-for” causal connection required to be

established under the HCPA is § 4710 of the National Defense Authorization Act for Fiscal Year

38

2010, which provides interpretations given to § 249 of the HCPA.12

Trout, supra at 147. “In

particular, § 4710(3) states that the Act should not be construed to cover religion, speech,

expression, or association if such exercise [thereof] was not intended to (A) plan or prepare for

an act of physical violence; or (B) incite an imminent act of physical violence against another.”

Id. (internal quotations omitted). Accordingly, “proving a causal link between the act and the

bias-inspired motivation is essential in establishing any successful hate crime claim.” Aaron J.

Creuz, But-for the Beard: An Analysis of Causation Under United States Code Section 249, 16

Rutgers J. L. & Religion 200, 204 (2014).

ii. The Reasonableness of Officer Campbell’s Use of Force Demonstrates the

Need for a But-For Causality Standard to Distinguish that his Actions

during the encounter with Mr. Jennings were not Based Off a Racially

Motivated Conviction.

As this Court has noted, “[t]he calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a

particular situation.” Graham v. Connor, 490 U.S. 386, 396-97 (1989). Additionally, “[t]he

‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396 (citing Terry v.

Ohio, 392 U.S. at 20–22). Further, assessing reasonableness “requires careful attention to the

facts and circumstances of each particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the officers or others, and whether

he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Tennessee v.

Garner, 471 U.S. at 8–9).

12

National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 4710, 123

Stat. 2190, 2841-42 (2009) (providing guidance for the HCPA in relation to the First

Amendment).

39

Officer Campbell may hold racist beliefs. R. 17. He may belong to organizations with

racist ideals. R. 6, n.10. On the first day of his solo patrol, Officer Campbell may even have

forgotten his training, which taught him not to reach in a suspect’s vehicle due to the potential

dangers associated with that action. R. 6. The unfortunate situation between Officer Campbell

and Mr. Jennings, however, was a high stress encounter that was just as likely motivated by an

over exuberant rookie who was trying to make a name for himself, and not an officer acting out

of racial animus. See R. 6, n.9 (describing the wave of emotions that Officer Campbell was

experiencing during his brief, but unfortunate, interaction with Mr. Jennings). Mr. Jennings

broke the law by not signaling prior to making a lane change.13

R. 3. This in turn, provided

Officer Campbell with a legitimate reason to initiate a stop of Mr. Jennings. See id. Officer

Campbell’s perception of Mr. Jennings’s potential for flight combined with his subjective fear of

being dragged by the Mercedes (if Mr. Jennings did try to flee)14

would warrant a use of force to

alleviate either fear.

13

It is an unfortunate reality that a driver’s failure to signal a lane change can cause significant

injury or death. See, e.g. People v. Ochoa, 864 P.2d 103, 108 (Cal. 1993) (noting that the

defendant’s unsafe actions, including making several rapid unsignaled lane changes supported

defendant’s conviction for gross negligence); In re Dennis B., 557 P.2d 514 (Cal. 1976)

(defendant, making unsafe lane change, crashed into cyclist, causing his death); Kaplan v. Allen,

837 So.2d 1174, 1176 (Fla. Dist. Ct. App. 2003) (observing that the “record as it exists shows no

more than the tragic death of the decedent was due to an improper lane change”); People v.

Abramczyk, 415 N.W.2d 249, 251 (Mich. Ct. App. 1987) (affirming negligent homicide

conviction when the decedent’s death resulted from defendant’s failure to signal a lane change);

State v. Brown, 603 N.W.2d 419, 430 (Neb. 1999) (approving a lower court’s jury instruction

allowing for reckless driving to be proved by “several lane changes [made by defendant] prior to

the accident); Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012) (noting that

“[t]he state has thus shown that appellant, by making an unsafe lane change, caused the death of

[the decedent]). 14

See R. 4 (indicating that the engine of the Mercedes was revving as Officer Campbell’s arm

was inside the Mercedes). In the heat of this moment, the revving of the Mercedes’s engine may

have given Officer Campbell an additional reason to fear that he would be injured when the

Mercedes began to move away from him.

40

The District Court erroneously weighed the Officer Campbell’s perceived racial motive

during his stop of Mr. Jennings by applying the exact type of “20/20 vision of hindsight” this

Court explicitly disavowed in Graham. 490 U.S. at 396. Thus, although the exact

“reasonableness” of Officer Campbell’s actions are not at issue here, the facts of this case

illustrate the “tense, uncertain, and rapidly evolving” situation that Officer Campbell found

himself in. Id. at 396-97. For the aforementioned reasons, Officer Campbell asks this Court to

affirm the Thirteenth Circuit’s holding, finding that his hate crime conviction under 18 U.S.C. §

249 does not satisfy the but-for causality element attributing the motivation for Officer

Campbell’s actions to Mr. Jennings’s race.

CONCLUSION

Respondent respectfully requests this Court affirm the Thirteenth Circuit Court of

Appeals in granting Respondent’s motion to suppress the video from Officer Campbell’s body

camera and vacate the 18 U.S.C. § 249 conviction.

Dated this 4th day of January, 2016.

Respectfully submitted,

_________________________

Attorneys for Respondent