Tolan v. Cotton Motion for Leave to File and Brief Amicus Curiae

    No. 13-551

In  T h e

J^upreme Qlmtrt uf the llrxiteh States

R o b e r t  R. T o l a n ,

v.
Petitioner,

J e f f r e y  W a y n e  C o t t o n ,

Respondent.

On Petition for a Writ of Certiorari to 
the United States Court of Appeals 

for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE ANT) BRIEF OF THE NAACP LEGAL 
DEFENSE & EDUCATIONAL FUND, INC., AS 

AMICUS CURIAE IN SUPPORT OF PETITIONER

S h e r r il y n  Ifill  
Director- Counsel 

C h r is t in a  Sw a r n s  
J o h a n n a  Ste in b e r g  
J in  H ee L ee 
V in c e n t  S o u th e r la n d  
N A A C P  L e g a l  D e fe n se  

& E d u c a t io n a l  F u n d  
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200

A n t h o n y  S. Ba r k o w * 
Er ic  D el Pozo 
R eid  A. A r o n s o n  
N a t a l ie  K. O r pe tt  
J e n n e r  & B l o c k  LLP 
919 Third Ave.
New York, NY 10022 
(212) 891-1622 
abarkow@jenner.com

*Counsel o f  Record

mailto:abarkow@jenner.com


MOTION OF THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., FOR LEAVE TO 

FILE BRIEF AMICUS CURIAEm  SUPPORT OF 
PETITIONER

Pursuant to Supreme Court Rule 37.2, the 
NAACP Legal Defense & Educational Fund, Inc. 
(“LDF”), respectfully requests leave to file the at­
tached brief amicus curiae in support of Petitioner 
Robert R. Tolan. Petitioner has consented to the fil­
ing of the brief. Respondent has not consented to the 
filing of the brief.

LDF is the nation’s first civil rights law firm. 
LDF was founded as an arm of the NAACP in 1940 
by Charles Hamilton Houston and Thurgood Mar­
shall to redress injustice caused by racial discrimina­
tion and to assist African Americans in securing 
their constitutional and statutory rights. Through 
litigation, advocacy, public education, and outreach, 
LDF strives to secure equal justice under the law for 
all Americans and to break down barriers that pre­
vent African Americans from realizing their basic 
civil and human rights.

As described more fully in the accompanying brief 
amicus curiae, LDF has a longstanding concern with 
the influence of race on the administration of the 
criminal justice system and with laws, policies, and 
practices that impose a disproportionately negative 
impact on communities of color. Thus, LDF recently 
called on the United States Congress to address 
Stand Your Ground laws, which have proven to be 
uniquely vulnerable to racial bias, by requiring train­
ing of state and local law enforcement, implementa­



tion of violence-reduction strategies, and collection 
and reporting of data regarding the laws’ application. 
LDF also has served as counsel of record and amicus 
curiae in federal and state court litigation challeng­
ing the arbitrary role of race in capital sentencing, 
the influence of race on prosecutorial discretion, the 
correlation between felon disenfranchisement, racial 
bias, and racial disproportionality in the criminal 
justice system, and the discriminatory use of pe­
remptory challenges.

In this case, the events underlying Petitioner’s 
Fourth-Amendment claim of excessive force under 
42 U.S.C. § 1983 highlight the potential influence of 
subconscious stereotypes falsely associating race 
with criminality, aggression, and violence on deci­
sions whether to use defensive deadly force. Wheth­
er the assailant is a police officer, or a private citizen 
“standing his ground,” such implicit bias has repeat­
edly led to the unjustified use of lethal force against 
young African-American men. Not considering this 
phenomenon, the United States Court of Appeals for 
the Fifth Circuit awarded Respondent qualified im­
munity from liability in a decision that was both le­
gally and factually flawed. Moreover, because the 
Fifth Circuit’s decision conflicts with this Court’s 
precedents regarding the test for qualified immunity 
and broadens the defense beyond proper limits, ami­
cus has an interest in having that decision corrected.

For the foregoing reasons, amicus can bring an 
important perspective to the issues before this Court 
and respectfully requests that leave to file the at­
tached brief amicus curiae in support of the petition 
for certiorari he granted.



Respectfully submitted,

Sh e r r il y n  Ifill  
Director- Counsel 

Ch r is t in a  Sw a r n s  
J o h a n n a  S t e in b e r g  
J in  H ee  L ee 
V in c e n t  S o u th e r la n d  
NAACP L e g a l  D e fe n se  

& E d u c a t io n a l  F u n d  
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200

A n t h o n y  S. Ba r r o w * 
Er ic  D el  P ozo  
R eid  A. A r o n s o n  
N a t a l ie  K. O r p e tt  
J e n n e r  & B l o c k  LLP 
919 Third Ave.
New York, NY 10022 
(212) 891-1622 
abarkow@jenner.com

* Counsel o f  Record

December 26, 2013

mailto:abarkow@jenner.com


TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................ ii
INTEREST OF AMICUS CURIAE ................................ 1
SUMMARY OF ARGUMENT......................................... 2
ARGUMENT ...................................................................... 5
I. The Fifth Circuit Incorrectly Added a 

Third Step to the Court’s Two-Step 
Qualified-Immunity Test.......................................5
A. The Properly Viewed Facts.......................5
B. The Fifth Circuit Incorrectly Modified

the Qualified-Immunity Standard......... 6
C. The Fifth Circuit’s Application of Its 

Modified Qualified-Immunity 
Standard Resulted in Material Error. . 10

D. The Court Should Remedy The Fifth 
Circuit’s Misapplication of Qualified
Immunity To Promote Fair 
Adjudication of Civil Rights Claims.... 16

II. The Fifth Circuit’s Errors Magnify the 
Potential Impact of Implicit Bias on the 
Events at Issue....................................................19

CONCLUSION............................................................... 25



11

TABLE OF AUTHORITIES
Cases

Anderson v. Creighton, 483 U.S. 635 (1987).... 8, 10
Anderson v. L iberty Lobby, Inc., 477 U.S.

242 (1986)....................... .........................................5
Ashcroft v. aLKidd, 131 S. Ct.

2074 (2011).............................................3, 7, 11, 16
Bailey v. Pataki, 708 F.3d 391 (2d Cir.

2013).......................................................................... 9
Blakely v. Washington, 542 U.S. 296 (2004)........18
Brosseau v. Haugen, 543 U.S. 194 (2004)............... 8
Byrd v. Blue Ridge Rural Electric Coopera -

tive, Inc., 356 U.S. 525 (1958)............................ 18
CarePartners, LLC v. Lash way, 545 F.3d

867 (9th Cir. 2008).......................   9
City o f Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985)...............................................24
Graham v. Connor, 490 U.S. 386 (1989).... 7, 12, 24
Harlow v. Fitzgerald, 457 U.S. 800 (1982).... 3, 4, 7
Hope v. Pelzer, 536 U.S. 730 (2002)....................... 11
Jennings v. Jones, 499 F.3d 2 (1st Cir. 2007)..... 17
Jones v. Wilhelm, 425 F.3d 455 (7th Cir.

2005)..........................................................................9
Ludwig v. Anderson, 54 F.3d 465 (8th Cir.

1995)........................................................................16
Maldonado v. Fontanes, 568 F.3d 263 (1st

Cir. 2009)...........................................................9, 17



Ill
M cSurely v. McClellan, 697 F.2d 309 (D.C.

Cir. 1982).................................... ......................... 18
M esserschmidt v. Millender; 132 S. Ct. 1235

(2012).........................................................................8
Pearson v. Callahan, 555 U.S. 223 (2009)...... ...6, 7
Reichle v. Howards, 132 S. Ct. 2088 (2012).........11
Quigley v. Tuong Vinh Thai, 707 F.3d 675

(6th Cir. 2013)......................................................... 9
Saucier v. Katz, 533 U.S. 194 (2001)............passim

Scott v. Harris, 550 U.S. 372 (2007)..................... 12
State v. Henderson, 27 A.3d 872 (N.J. 2011)...... 22
Taravella v. Town o f  Wolcott, 599 F.3d 129

(2d Cir. 2010).................................................17, 18
Tennessee v. Garner, 471 U.S. 1 (1985).........10, 15
Walczyk v. Rio, 496 F.3d 139 (2d 

Cir. 2007)......................................................8, 9, 16
Young v. Conway, 698 F.3d 69 (2d Cir.

2012), cert, denied, 134 S. Ct. 20 (2013)..........22
Statutes

42 U.S.C. § 1983.......................................................... 3
Other Authorities

Henk J. Brands, Qualified Immunity and 
the Allocation o f DecisionM aking Func­
tions Between Judge and Jury, 90 Ccr 
lum. L. Rev. 1045 (1990) 17



IV
Joshua Correll, et al., The Police Officer's 

Dilemma■' Using Ethnicity To Disambi­
guate Potentially Threatening Individu­
als, 83 J. Personality & Soc. Psychol.
1314 (2002)............................................................22

Kenneth A. Deffenbacher, et al., A M eta- 
Analytic Review  o f  the E ffects o f  High 
Stress on Eyewitness Memory, 28 Law &
Hum. Behav. 687 (2004).....................................22

Patricia G. Divine, Stereotypes and Preju­
dice-' Their Automatic and Controlled 
Components, 56 J. Personality & Soc. 
Psychol. 5 (1989)...................................................21

Jennifer L. Eberhardt, et al., Seeing Black'- 
Race, Crime, and Visual Processing, 87 J. 
Personality & Soc. Psychol. 876 (2004).............. 21

Susan T. Fiske & Shelley E. Taylor, Social
Cognition (2d ed. 1991)........................................ 19

Anthony G. Greenwald, et al., Targets o f  
Discrimination•' Effects o f  Race on R es­
ponses to Weapons Holders, 39 J. Expe­
rimental Soc. Psychol. 399 (2003)......................22

Kurt Hugenberg & Galen V. Bodenhausen, 
Facing Prejudice•' Implicit Prejudice and 
the Perception o f Facial Threat, 14 Psy­
chol. Sci. 640 (2003)..............................................21

Daniel Kahneman, Thinking, Fast and Slow
(2011)............... ............................................... 19, 23

Jerry Kang, Trojan Horses o f  Race,
118 Harv. L. Rev. 1489 (2005).............. 20, 21, 24



V
Ziva Kunda, Social Cognition: Making

Sense of People (1999)......................................... 19
Kevin N. Ochsner & Matthew D. Lieber- 

man, The Emergence o f  Social Cognitive 
Neuroscience, 56 Am. Psychologist 717 
(2001) ...................................................................... 21

B. Keith Payne, Prejudice and Perception'
The Role o f  Automatic and Controlled 
Processes in M isperceiving a Weapon, 81 
J. Personality & Soc. Psychol. 181 (2001).........21

L. Song Richardson & Phillip Atiba Goff, 
Self-Defense and the Suspicion Heuristic,
98 Iowa L. Rev. 293 (2012)..........................20, 23

Amos Tversky & Daniel Kahneman, Judg­
m ent Under Uncertainty■' Heuristics and 
Biases, 185 Sci. 1124 (1974)........................20, 23



INTEREST OF AMICUS CURIAE1
The NAACP Legal Defense & Educational Fund, 

Inc. (“LDF”), is the nation’s first civil rights law firm. 
LDF was founded as an arm of the NAACP in 1940 
by Charles Hamilton Houston and Thurgood Mar­
shall to redress injustice caused by racial discrimina­
tion and to assist African Americans in securing 
their constitutional and statutory rights. Through 
litigation, advocacy, public education, and outreach, 
LDF strives to secure equal justice under the law for 
all Americans, and to break down barriers that pre­
vent African Americans from realizing their basic 
civil and human rights.

LDF has a longstanding concern with the influ­
ence of race on the administration of the criminal 
justice system and with laws, policies, and practices 
that impose a disproportionately negative impact on 
communities of color. Thus, LDF recently called on 
the United States Congress to address Stand Your 
Ground laws, which have proven to be uniquely vul­
nerable to racial bias, by requiring training of state 
and local law enforcement, implementation of vi­
olence-reduction strategies, and collection and re­
porting of data regarding the laws’ application. See 
Letter from Sherrilyn Ifill, President and Director-

1 Pursuant to Supreme Court Rule 37.2(a), counsel of record for 
both parties received notice of amicus curiae’s intention to file 
this brief at least 10 days prior to the due date. Petitioner 
consented to the filing of this brief, and his letter of consent has 
been filed with the Clerk. No party authored this brief in whole 
or in part, and no person or entity, other than amicus curiae, its 
members, or its counsel, has made a monetary contribution to 
the preparation or submission of this brief.



2

Counsel, NAACP Legal Defense & Educational 
Fund, Inc., to the United States Senate Judiciary 
Committee, Subcommittee on the Constitution, Civil 
Rights, and Human Rights (Oct. 29, 2013) (on file 
with author).

LDF also has served as counsel of record and 
amicus curiae in federal and state court litigation 
challenging the arbitrary role of race in capital sen­
tencing, see M cCleskey v. Kemp, 481 U.S. 279 
(1987); Furman v. Georgia, 408 U.S. 238 (1972); the 
influence of race on prosecutorial discretion, see 
United States v. Armstrong, 517 U.S. 456 (1996); 
United States v. Bass, 266 F.3d 532 (6th Cir. 2001); 
the correlation between felon disenfranchisement, 
racial bias, and racial disproportionality in the crim­
inal justice system, see Farrakhan v. Gregoire, 590 
F.3d 989 (9th Cir. 2010); and the discriminatory use 
of peremptory challenges, see M iller-El v. Dretke, 
545 U.S. 231 (2005); Johnson v. California, 545 U.S. 
162 (2005); Batson v. Kentucky, 476 U.S. 79 (1986).

Given its expertise in matters concerning the in­
fluence of race on the operation of the justice system, 
LDF believes its perspective would be helpful to the 
Court in resolving the issues presented by this case.

SUMMARY OF ARGUMENT
In his own driveway, suspected of having stolen 

his own car, and despite verification of his residency 
and innocence from his middle-aged parents who had 
exited their home wearing their pajamas, unarmed 
Petitioner Robbie Tolan was shot at three times and 
grievously injured by Respondent Sergeant Jeffrey 
Cotton. Sergeant Cotton had been at the scene for



3

just 32 seconds before drawing and discharging his 
weapon in this near-fatal shooting. Misstating the 
law and improperly construing the facts, a panel of 
the Court of Appeals for the Fifth Circuit held 
Sergeant Cotton immune from liability for excessive 
force under 42 U.S.C. § 1983. See Petitioner’s 
Appendix (“Pet. App.”) 12.

The Court should grant the Petition for a Writ of 
Certiorari (“Pet.”) in this case to clarify the 
appropriate qualified-immunity standard for claims 
of unreasonable search or seizure in violation of the 
Fourth Amendment. As set forth therein, see 
Pet. 10-19, the Fifth Circuit’s decision leaves the 
relevant standard in disarray and perpetuates a split 
of authority among the Courts of Appeal on the 
proper articulation and application of the second 
qualified-immunity question, which asks whether 
the constitutional or statutory “right [at issue] was 
‘clearly established’ at the time of the challenged 
conduct.” Ashcroft v. afKidd, 131 S. Ct. 2074, 2080 
(2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 
818 (1982)).

Despite this Court’s consistent endorsement of a 
qualified-immunity test with “two prongs,” id., the 
Fifth Circuit divided the second prong into “two 
separate inquiries^ whether the allegedly violated 
constitutional rights were clearly established at the 
time of the incident; and, if so, whether the 
defendant’s conduct was objectively unreasonable in 
the light of that then clearly established law.” 
Pet. App. 10; see also id. at 14 (calling identification 
of “clearly established” legal rule “only half of the 
equation for second-prong analysis”). The panel then



4

shoehorned an unbridled and subjective 
reasonableness determination into the newly 
invented third immunity prong and resolved 
contested questions of fact against the non-movant 
on summary judgment. See Pet. 25-27.

Neither the shooting of Robbie Tolan nor the 
decision depriving him of a jury determination of the 
legality of that shooting finds support in the law. 
The panel decision makes it onerously difficult to 
surmount a qualified-immunity defense and usurps 
the jury function in excessive-force cases. The goal of 
qualified immunity is to protect officials from 
liability for reasonable mistakes in novel situations, 
see Harlow, 457 U.S. at 819, not to wrest otherwise 
worthy cases from juries in a manner that insulates 
the actions of law enforcement from review.

These errors are particularly problematic where, 
as here, indicia of racial bias taint the underlying 
facts. Specifically, without warning, a police officer 
shot an unarmed person of color—who was wrongly 
suspected of vehicle theft—simply for shouting at the 
officer and beginning to get up from a prone position 
in response to the officer’s manhandling of the 
victim’s mother. See Pet. App. 6, 11, 14—15. In 
assessing Sergeant Cotton’s conduct “from the 
perspective of a reasonable officer on the scene” 
tasked with making a split-second decision whether 
to use deadly force, id. at 12 (quotation marks 
omitted), the Court of Appeals did not consider the 
influence of subconscious stereotypes falsely 
associating race with criminality, aggression, and 
violence. Whether the assailant is a police officer, or 
a private citizen “standing his ground,” such implicit



5

bias has repeatedly led to the unjustified use of 
lethal force against young African-American men— 
as occurred here.

Accordingly, the Court should grant certiorari to 
remedy the multiple errors in the Fifth Circuit’s 
decision and to clarify the law in this important area.

ARGUMENT
I. The Fifth Circuit Incorrectly Added a Third Step

to the Court’s Two-Step Qualified-Immunity Test.
A. The Properly Viewed Facts.

In ruling on a motion for summary judgment, 
“ [credibility determinations, the weighing of the 
evidence, and the drawing of legitimate inferences 
from the facts are jury functions, not those of a 
judge.” Anderson v. L iberty Lobby, Inc., 477 U.S. 
242, 255 (1986). “The evidence of the non-movant is 
to be believed, and all justifiable inferences are to be 
drawn in his favor.” Id. Properly viewed under 
these standards, the record evidence in this case 
revealed as follows^

Robbie Tolan was pulling into his driveway with 
his cousin when he was approached by a police 
officer (Officer John Edwards) who had incorrectly 
run the vehicle’s license plate number, prompting 
suspicion that the car was stolen. Pet App. 25-26, 
64-65. After the pair had exited the vehicle, the 
officer ordered them to get on the ground. Id. at 27. 
At some point, responding to a call for backup, a 
second officer (Sergeant Cotton) arrived on the scene. 
Id. at 28, 65. Hearing the commotion outside, Robbie 
Tolan’s parents (Mr. and Mrs. Tolan) came out of the



6

house in their pajamas and told the young men to 
follow the officer’s orders. Id. at 11, 27—28, 65, 97. 
They did. Id. at 27—28.

Mr. and Mrs. Tolan then calmly explained to the 
officers that they had lived in the home for 15 years, 
that the suspected auto thieves were actually not 
thieves but their son and nephew, and that they 
owned the putatively stolen car. Id. at 5, 65—66, 97. 
Instead of de-escalating the situation based on this 
new information, one of the officers slammed Mrs. 
Tolan against the house’s garage door, at which point 
her son sat up and yelled at the officer. Id. at 70, 75— 
76, 98. Without warning—and only 32 seconds after 
arriving on the scene—the officer whose job was to 
provide backup drew his gun and shot Robbie Tolan 
in the chest, collapsing his lung. Id. at 6, 42, 98. 
Robbie Tolan did not reach into or towards his 
waistband before being shot. Id. at 11, 80.

These facts, when viewed in light of the 
applicable law, do not justify the Fifth Circuit’s 
qualified-immunity determination.

B. The Fifth Circuit Incorrectly Modified 
the Qualified-Immunity Standard.

This Court’s qualified-immunity jurisprudence is 
clear and well developed. “Qualified immunity 
balances two important interests—the need to hold 
public officials accountable when they exercise power 
irresponsibly and the need to shield officials from 
harassment, distraction, and liability when they 
perform their duties reasonably.” Pearson v. 
Callahan, 555 U.S. 223, 231 (2009). Accordingly, 
“government officials performing discretionary



7

functions generally are shielded from liability for 
civil damages insofar as their conduct does not 
violate clearly established statutory or constitutional 
rights of which a reasonable person would have 
known.” Harlow, 457 U.S. at 818. Correctly applied, 
the defense “gives government officials breathing 
room to make reasonable but mistaken judgments 
about open legal questions.” aP K idd.131 S. Ct. at 
2085.

In Saucier v. Katz, 533 U.S. 194 (2001), modified 
in part by Pearson, 555 U.S. at 236, the Court 
delineated two questions that control the qualified- 
immunity analysis•’

One, “[tlaken in the light most favorable to the 
party asserting the injury, do the facts alleged show 
the officer’s conduct violated a constitutional right?” 
Id. at 201.

And two, did “the law clearly establish[ ] that the 
officer’s conduct was unlawful in the circumstances 
of the case”? Id.', see Pearson, 555 U.S. at 236 
(holding that questions may be answered in any 
order).

An excessive-force determination turns on 
reasonableness. See, e.g., Graham v. Connor, 490 
U.S. 386, 396 (1989). So too does the second prong of 
the qualified-immunity analysis, which asks whether 
a reasonable officer would have appreciated that “his 
conduct was unlawful in the situation he confronted.” 
Saucier, 533 U.S. at 202. Crucially, however, “ [t]he 
inquiries of qualified immunity and excessive force 
remain distinct.” Id. at 204. Evaluating clearly 
established law based on the circumstances an officer



8

confronted simply connects the legal standard to the 
facts to aid in articulating the implicated right. See 
Anderson v. Creighton, 483 U.S. 635, 640 (1987) 
(“The contours of the right must be sufficiently clear 
that a reasonable official would understand that 
what he is doing violates that right.”); see also, e.g., 
M esserschmidt v. Millender, 132 S. Ct. 1235, 1245 
(2012) (reiterating second step’s concern with “the 
objective legal reasonableness of the action, assessed 
in light of the legal rules that were clearly 
established at the time it was taken” (quotation 
marks omitted)); Brosseau v. Haugen, 543 U.S. 194, 
198 (2004) (per curiam) (reducing immunity inquiry 
to whether officer “reasonably misapprehend[ed] the 
law governing the circumstances she confronted”).

Nothing in Saucier or this Court’s decisions since, 
however, permits “bifurcation of the ‘clearly 
established’ analysis” into distinct components, 
“divorcing the reasonableness inquiry from the state 
of the law at the time of the conduct in question.” 
Walczyk v. Rio, 496 F.3d 139, 167 (2d Cir. 2007) 
(Sotomayor, J., concurring). With good reason^ as 
then-Judge Sotomayor has warned, “introducing 
reasonableness as a separate step” impermissibly 
“permit[s] courts to decide that official conduct was 
‘reasonable’” irrespective of whether “it violated 
clearly established law.” Id. at 168-69. It thus 
“give[s] defendants a second bite at the immunity 
apple, thereby thwarting a careful balance that” this 
Court has struck between vindication of private 
rights and performance of public duties. Id. at 169.

Nevertheless, the Fifth Circuit here divided the 
second, “clearly established” qualified-immunity



9

prong in just such a fashion. See Pet. App. 10 (“The 
second prong of the qualified immunity test 
is . . . understood as two separate inquiries . . . .” 
(quotation marks omitted)).2 In the panel’s view, 
that “it was clearly established that shooting an 
unarmed, non-threatening suspect is a Fourth- 
Amendment violation” was “only half of the equation 
for second-prong analysis? the remainder depends 
upon the totality of the circumstances as viewed by a 
reasonable, on-the-scene officer without the benefit 
of retrospection.” Id. at 13-14. This misstatement 
created an illegitimately broad zone of immunity for 
the defendant, at once promoting casual treatment of 
the record evidence, treading on the jury’s realm, and 
sowing confusion in the law to the detriment of civil 
rights plaintiffs. See infra Parts I.C-D. In short, it 
had “real consequences” on the outcome of this case, 
Walczyk, 496 F.3d at 168 (Sotomayor, J., 
concurring), as it will on future cases.

2 Courts in the Second, Sixth, and Ninth Circuits have similarly 
bifurcated the “clearly established” prong. See Bailey v. Pataki, 
708 F.3d 391, 404 n.8 (2d Cir. 2013); Quigley v. Tuong Vinh 
Thai, 707 F.3d 675, 680 n.2 (6th Cir. 2013); CarePartners, LLC 
v. Lashway, 545 F.3d 867, 876 & n.6 (9th Cir. 2008). Other 
Circuits apply the prong faithfully. See Jones v. Wilhelm, 425 
F.3d 455, 460—61 (7th Cir. 2005) (rejecting addition of third 
Saucier prong that would make “reasonableness of an official’s 
actions an independent factor in determining whether a right is 
clearly established”); see also Maldonado v. Fontanes, 568 F.3d 
263, 269 (1st Cir. 2009).



10
C. The Fifth Circuit’s Application of Its

Modified Qualified-Immunity Standard 
Resulted in Material Error.

As Judge Dennis aptly noted in dissent from the 
denial of rehearing en banc, the panel’s second-prong 
Saucier misadventure resulted in a “confused jumble 
of parts of each prong,” leading to the incorrect 
application of “either prong of the Saucier analysis.” 
Pet. App. 93. Indeed, rather than look to the 
circumstances Sergeant Cotton confronted to 
determine whether the involved right was clearly 
established, see Anderson, 483 U.S. at 640, the panel 
examined the factual record to determine whether, in 
light of clearly established law, the officer 
nevertheless acted reasonably in the broadest 
imaginable sense. This was error.3 Given “the 
situation he confronted,” Saucier, 533 U.S. at 202, 
Sergeant Cotton’s alleged actions contravened clearly 
established law.

In fact, the panel correctly recognized “that 
shooting an unarmed, non-threatening suspect is a 
Fourth Amendment violation.” Pet. App. 14 (citing 
Tennessee v. Garner, 471 U.S. 1 (1985)). At that 
point, the inquiry was complete: on Robbie Tolan’s 
account (and in reality), Sergeant Cotton shot “an 
unarmed, non-threatening suspect.” Id.

3 The panel also misstated the “the first prong of the qualified- 
immunity analysis” as requiring injury “result[ingj from the use 
of force that was clearly excessive to the need and . . . the 
excessiveness of which was clearly unreasonable.” Pet. App. 9 
(quotation marks omitted). Such error highlights the perils of 
the Court’s tolerating continued distortion of Saucieis prongs.



11
In concluding that immunity was warranted, 

however, the panel did not meaningfully distinguish 
Garners facts. See, e.g., Saucier, 533 U.S. at 202 
(holding “clearly established” inquiry informed by 
whether prior cases are “distinguishable in a fair 
way from the facts presented in the case at hand”). 
Nor did the panel survey case law to judge whether 
Sergeant Cotton had “fair warning” that the level of 
force used was excessive under the circumstances. 
Hope v. Pelzer, 536 U.S. 730, 741 (2002); see id. at 
753 (Thomas, J., dissenting) (“In conducting this 
inquiry, it is crucial to look at precedent applying the 
relevant legal rule in similar factual
circumstances.”); see also Reichle v. Howards, 132
S. Ct. 2088, 2093-96 (2012) (surveying law of this 
Court and of Courts of Appeal in analyzing whether 
proposed right to freedom from retaliatory arrest 
based on probable cause was “clearly established”); 
al-Kidd, 131 S. Ct. at 2083 (focusing “clearly
established” inquiry on “existing precedent,” which 
“must have placed the statutory or constitutional 
question beyond debate”).

Instead, the panel determined whether the force 
used by Sergeant Cotton was reasonable—or, in 
other words, not excessive—as a matter of 
second-step, qualified-immunity law.4 It premised 
that analysis on the Graham v. Connor directive that 
force’s excessiveness “be judged from the perspective

4 While the analysis resembled that of Sauciehs first step, the 
panel expressly declined to “reach whether Sergeant Cotton’s 
shooting Robbie Tolan violated his Fourth Amendment right 
against excessive force.” Pet. App. 17.



12
of a reasonable officer on the scene.” 490 U.S. at 396. 
Graham involved an arrest during an investigatory 
stop, however, and not a police shooting. Thus, while 
its general principles endure, its specific factual 
context is of “scant applicability to” a police shooting 
case. Scott v. Harris, 550 U.S. 372, 381—83 (2007); cf. 
Saucier, 553 U.S. at 201-02 (observing that Graham 
alone furnishes insufficient guidance for evaluating 
clarity of implicated right in excessive-force cases).5

This errant analysis produced a conclusion that 
Sergeant Cotton did not, in fact, face “an unarmed, 
non-threatening suspect.” Pet. App. 14 (emphasis 
added). Someone in Sergeant Cottons position, held 
the panel, could reasonably have believed that 
Robbie Tolan “presented an immediate threat to the 
safety of the officers.” Id. (quotation marks omitted). 
In so deciding, however, the panel did not construe 
the evidence in the light most favorable to the 
non-movant, as it was required to do on summary 
judgment. It largely did the opposite.

First, the panel unjustifiably “resolv[ed] material 
facts genuinely at issue in the defendant’s favor 
rather than in favor of the plaintiff.” Id. at 99. 
Specifically, the paneb

• despite Robbie Tolan’s testimony that the area 
was “reasonably well-lit,” id. at 4, by 
floodlights over the garage, a lantern in the 
yard, and a police car and flashlight, id. at 96, 
described the area as “dimly-lit,” id. at 14;

6 Nor does Graham set forth any pertinent principle of qualified 
immunity. See 490 U.S. at 399 n.12.



13

• despite testimony that Mrs. Tolan “was calm 
and merely explained to both officers that she 
and her husband owned the Nissan and house 
and that Robbie lived there with them,” id. at 
96; see id. at 30—31, 41, concluded that Mrs. 
Tolan “refus[ed] orders to remain quiet and 
calm,” id. at 15;

• ignored testimony that Sergeant Cotton 
“shoved” Mrs. Tolan into the garage, id. at 38, 
producing a “loud noise,” id. at 31, or a “big 
bang,” id. at 39, and instead opined that 
Sergeant Cotton used “minimal physical force 
to move [Mrs.] Tolan away from Officer 
Edwards’ line of sight,” id. at 18; and

• rejected testimony and physical evidence 
supporting a finding that Robbie Tolan had 
not moved towards Sergeant Cotton before 
being shot, see id. at 31-36, 71, in stating that 
Robbie Tolan had “abruptly attempt[ed] to 
approach Sergeant Cotton,” id. at 16.

Second, the panel improperly “dismissed]” 
certain material “facts as inconsequential.” Id. at 99. 
For example, the panel:

• decided that whether Robbie Tolan reached for 
his waistband was immaterial, id. at 15, 
despite noting the conflicting testimony in this 
regard, see id. at 6, 11, and also pointing out 
that Robbie Tolan was wearing a ‘“hoodie”’ 
that “conceal[ed] his waistband,” id. at 6;

• failed to consider a reasonable officer’s 
reaction to Mr. and Mrs. Tolan’s explanation 
that their vehicle was not stolen, see id. at 5,



14

in light of the young men’s compliance with 
the directions of law enforcement in response 
to the Tolans’ instructions, see id. at 3-4, 
while stressing Officer Edwards’s error in 
mistyping the vehicle’s license plate number 
into a search database, which led the officers 
to “believe they were dealing with a felony 
vehicle theft,” id. at 11;

• without relaying that two of the identified 
persons were middle-aged and wearing 
pajamas and that the other two were prone on 
the ground, relied on the fact that the officers 
were “outnumbered on the scene” by four other 
persons, id. at 15.

Third, the panel drew unwarranted evidentiary 
inferences for the movant and advanced those 
inferences as historic fact. For instance, the paneb

• failed to acknowledge that Sergeant Cotton’s 
aggression towards the Tolans might have 
stirred confrontation, see  Pet. App. 30—31, 96, 
and simply declared the scene outside the 
Tolan home “chaotic and confusing,” id. at 4',

• foreclosed the inference that Sergeant Cotton 
was unreasonable in ignoring Mrs. Tolan’s 
“protestations” that “the car was not stolen, 
and [that] they had lived in the house for 15 
years,” id. at 5, and instead ruled that 
Sergeant Cotton was “ [jlustified in his 
believing [that] Robbie Tolan . . . had stolen a 
vehicle,” id. at 14;

• inferred that Mrs. Tolan’s “demeanor” (again, 
the subject of a factual dispute) “frustrated”



15

Sergeant Cotton’s ability to secure the scene, 
id. at 5;

• deemed Robbie Tolan’s message to Sergeant 
Cotton to “get your fucking hands off my 
mom!” not an appropriately upset plea to 
unhand the speaker’s mother, see id. at 31, 
but a “verbal[ ] threat,” id. at 14; and

• construed Robbie Tolan’s pushing himself up 
to his knees and turning around not as a son’s 
attempting to assess his mother’s safety, but 
as his “moving to intervene” in Sergeant 
Cotton’s police work, id. at 12.

A glaring example of factfinding by the panel 
occurred in its cursory discussion of the Tennessee v. 
Garner requirement of “some warning,” whenever 
“feasible,” before an officer may shoot even a “suspect 
[who is] threatening] the officer with a weapon.” 
471 U.S. at 11-12. The panel inferred a “clear and 
obvious warning” from the officers’ communicating 
their belief that the Tolans’ vehicle was stolen and 
from Sergeant Cotton’s drawing “his pistol upon his 
arriving on the scene.” Pet. App. 16. But see id. at 
36 (testimony of Robbie Tolan that Sergeant Cotton 
unholstered his weapon and discharged it 
“practically immediately” thereafter); id. at 105-06 
(testimony of Mrs. Tolan that Sergeant Cotton 
“didn’t say a word” before firing). Even assuming 
that identifying a vehicle as stolen and drawing a 
weapon might satisfy Garner, the efficacy of such an 
implied warning and whether “absence of a final 
warning . . . exacerbate[d] the circumstances” are



16

quintessential jury questions. Ludwig v. Anderson, 
54 F.3d 465, 474 (8th Cir. 1995).

Given the material disputed facts, the panel could 
not have properly resolved whether Sergeant Cotton 
acted reasonably under Garner—and, indeed, it 
expressly elected not to do so—under the first 
Saucier step. Yet it nonetheless injected improper 
factfinding into the second qualified-immunity 
prong, which solely concerns identifying whether the 
pertinent legal rule is clearly established. The 
panel’s treatment of the record evidence is a 
byproduct of, and inseparable from, its flawed 
articulation of the qualified-immunity test.

D. The Court Should Remedy The Fifth Cir­
cuit’s Misapplication of Qualified Immuni­
ty To Promote Fair Adjudication of Civil 
Rights Claims.

The challenged panel decision sets a dire 
precedent, realizing previously expressed concerns 
over a three-pronged qualified-immunity test. See 
Walczyk, 496 F.3d at 168—69 (Sotomayor, J., 
concurring). The point of qualified immunity is to 
protect reasonable official activity where the 
governing constitutional or statutory law is not 
clearly established. See, e.g., aLKidd, 131 S. Ct. at 
2083—84. It is not to provide “breathing room” for 
police to shoot unarmed people of color without fear 
of repercussions in cases where courts honor the 
police version of events. Id. at 2085.

The panel decision also sows needless confusion 
in the law, to the detriment of civil rights plaintiffs. 
Surmounting a qualified immunity defense should



17

not be made onerously difficult. “ [Flormulating the 
inquiry as both a two- and three-step analysis,” 
however, risks that courts, as here, “will interpret 
the third step—the ‘objective reasonableness’ 
inquiry—as a hurdle that is somehow distinct from, 
and in addition to, the ‘reasonableness’ inquiry that 
is already a part of the second step.” Taravella v. 
Town o f Wolcott, 599 F.3d 129, 138 (2d Cir. 2010) 
(Straub, J., dissenting). That distinct and additional 
hurdle proved dispositive here. Indeed, the First 
Circuit, which “abandoned] previous usage of a 
three-step analysis,” Maldonado v. Fontanes, 568 
F.3d 263, 269 (1st Cir. 2009), has noted the “added 
measure of protection provided by the third prong of 
the qualified immunity analysis,” Jennings v. Jones, 
499 F.3d 2, 19 (1st Cir. 2007) (quotation marks 
omitted).

Finally, just as pernicious, the panel’s distortion 
of the second qualified-immunity step from Saucier 
will encourage usurpation of the jury’s function in 
excessive-force cases. The putative third Saucier 
step on summary judgment invites impermissible 
examination and characterization of the record 
evidence regarding the particular circumstances an 
officer confronted, to determine whether the officer 
acted reasonably despite allegedly violating clearly 
established law. Cf. Henk J. Brands, Qualified 
Immunity and the Allocation of Decision-Making 
Functions Between Judge and Jury, 90 Colum. L. 
Rev. 1045, 1059 (1990) (stating that conflating “any 
qualified immunity inquiry in [to] terms of what a 
reasonable person would have known or believed” 
presents “arguably a question for the jury”). Adding



18

a third “reasonableness” layer to qualified immunity 
thus invites judges to substitute their own 
experiences and sympathies for those of the jury in 
assessing the reasonableness (or unreasonableness) 
of the defendant’s conduct as a matter of law.

Here, the panel’s foray into factfinding 
contravened the bedrock principle that “ [w]hen 
considering a motion for summary judgment, a trial 
court’s function is to ascertain whether disputed 
facts exist, not to try them.” M cSurely v. McClellan, 
697 F.2d 309, 321 (D.C. Cir. 1982) (per curiam). 
Other courts may read the panel decision as license 
to misapply the second Saucier step in similar 
fashion. See Taravella, 599 F.3d at 138 (Straub, J., 
dissenting). Moreover, if the outer boundary of 
step-two factual “reasonableness” exceeds that of 
step-one factual “reasonableness,” as is likely, then 
fewer excessive-force cases will be submitted to 
juries and more will be decided by courts. Such an 
outcome must be prevented “to give intelligible 
content to the right of jury trial,” which is “no mere 
procedural formality, but a fundamental reservation 
of power in our constitutional structure.” Blakely v. 
Washington, 542 U.S. 296, 305-06 (2004) (making 
point in sentencing context); see Byrd v. Blue Ridge 
Rural Elec. Co-op., Inc., 356 U.S. 525, 540 (1958) 
(affirming longstanding “federal practice of jury 
determination of disputed factual issues,” including 
those relating to immunity defenses); see also 
Pet. 22—23 and sources cited.



19

II. The Fifth Circuit’s Errors Magnify the Potential
Impact of Implicit Bias on the Events at Issue.
The Fifth Circuit’s misapplication of qualified 

immunity is particularly troublesome where, as here, 
the facts suggest that unconscious bias may have 
influenced the actions of law enforcement. As has 
been recounted, Sergeant Cotton wrongly suspected 
Robbie Tolan of having stolen his own vehicle, 
despite verification of his innocence from his 
pajama-clad parents. Sergeant Cotton then shot an 
unarmed Robbie Tolan—who, in light of the facts 
presented and inferences as they must be drawn at 
summary judgment, did not motion towards his 
waistband or present any sort of threat—in asserted 
self-defense. See Pet App. 6, 11, 14-15. Sergeant 
Cotton’s perception of danger where none actually 
existed suggests the taint of unconscious bias.

Scientific research spanning decades establishes 
that much of how we think, behave, and judge the 
world around us is influenced by mental processes 
that occur automatically. We employ these processes 
by necessity—our brains are constantly inundated by 
stimuli that must be processed, interpreted, and 
recorded into memories, often instantaneously. To 
permit us to function, our brains must condense and 
simplify this flood of information.6

6 Researchers describe this constellation of mental processes 
variously as “heuristics,” e.g., Daniel Kahneman, Thinking, 
Fast and Slow (2011); “schemas,” e.g., Susan T. Fiske & Shelley 
E. Taylor, Social Cognition (2d ed. 1991); and “concepts,” e.g., 
Ziva Kunda, Social Cognition: Making Sense of People (1999).



20
Although these mental shortcuts are often 

accurate and efficient means of processing 
information, they also produce errors in judgment 
that affect understanding and cognition. See L. Song 
Richardson & Phillip Atiba Goff, Self-Defense and 
the Suspicion Heuristic, 98 Iowa L. Rev. 293, 298 
(2012); Amos Tversky & Daniel Kahneman, 
Judgment Under Uncertainty-' Heuristics and Biases, 
185 Sci. 1124, 1124—31 (1974). These errors—known 
as “implicit biases”—are systemic and widespread: 
whatever we think we think, implicit bias 
contaminates our perceptions and judgments.

Because implicit bias, by definition, occurs 
unconsciously, psychologists and other social 
scientists have developed special testing methods to 
understand its contours. The “state-of-the-art” 
Implicit Association Test—examining how tightly 
subjects associate any two concepts with one 
another—is the most common and well-established 
mechanism for measuring implicit bias. Jerry Kang, 
Trojan Horses o f  Race, 118 Harv. L. Rev. 1489, 1508— 
11 (2005) (describing implicit-association testing 
methods and “dissociation between explicit 
self-reports and implicit measures” of bias).

The results of these tests are sadly predictable. 
Although implicit bias may take many forms, it is 
most pervasive along racial lines and, as empirical 
studies have demonstrated, it is particularly acute 
against African Americans. These studies have 
shown that individuals quickly match “black” or 
“African-American” with widely held negative 
stereotypes like violence, dangerousness, and 
criminality. See, e.g., Jennifer L. Eberhardt, et al.,



21
Seeing Black-' Race, Crime, and Visual Processing, 87 
J. Personality & Soc. Psychol. 876, 876 (2004).

Accordingly, individuals are more likely to 
perceive ambiguously aggressive behavior of an 
African-American than of a white person as a threat. 
See Patricia G. Divine, Stereotypes and Prejudice•' 
Their Automatic and Controlled Components, 56 J. 
Personality & Soc. Psychol. 5 (1989); see also Kurt 
Hugenberg & Galen V. Bodenhausen, Facing 
Prejudice-' Implicit Prejudice and the Perception o f  
Facial Threat, 14 Psychol. Sci. 640, 643 (2003) 
(concluding that individuals are more likely to 
perceive hostility in African-American faces than in 
white faces). Brain-mapping functional magnetic 
resonance imaging (fMRI) tests have evidenced 
significantly greater activation in the part of the 
brain involved in fear conditioning and perception of 
threatening stimuli when white study participants 
are subliminally shown African-American faces than 
when they are shown white faces. See, e.g., Kang, 
Trojan H orses o f  Race, supra, at 1510-11; Kevin N. 
Ochsner & Matthew D. Lieberman, The Emergence 
o f  Social Cognitive Neuroscience, 56 Am. 
Psychologist 717, 720 (2001).

Perhaps most disturbing, studies have specifically 
demonstrated that individuals are more likely to 
perceive guns (as opposed to tools) in the hands of 
African Americans than white people. See B. Keith 
Payne, Prejudice and Perception'■ The Role o f  
Automatic and Controlled Processes in M isperceiving 
a Weapon, 81 J. Personality & Soc. Psychol. 181, 
183-86 (2001); Eberhardt, et al., Seeing Black, 
supra, at 889-90.



22
Likewise, when tasked with deciding whether or 

not to shoot a target in a video game depending on 
whether the target is carrying a gun (as opposed to a 
wallet, soda can, or cell phone), individuals are both 
more likely and quicker to shoot unarmed 
African-American targets than they are unarmed 
white targets. See Anthony G. Greenwald, et al, 
Targets o f  Discrimination•' Effects o f Race on 
Responses to Weapons Holders, 39 J. Experimental 
Soc. Psychol. 399, 403 (2003); Joshua Correll, e t al., 
The Police Officer’s  Dilem m a'■ Using Ethnicity To 
Disambiguate Potentially Threatening Individuals, 
83 J. Personality & Soc. Psychol. 1314, 1319 (2002).

Moreover, as the Second Circuit noted in Young v. 
Conway, 698 F.3d 69 (2d Cir. 2012), cert, denied, 134 
S. Ct. 20 (2013), an extensive body of scientific 
literature “indicates that certain circumstances 
surrounding a crime,” which include “the stress of 
the situation,” and “the cross-racial nature of the 
crime . . . may impair the ability of a witness . . .  to 
accurately process what she observed,” id. at 78—79 
(citing studies in vacating criminal conviction on 
habeas review).7 Similarly, scientists have proven 
that high levels of stress produce a defensive mental 
state, which results in diminished capacity to process 
or to remember events accurately. See Kenneth A. 
Deffenbacher, et al., A M eta-Analytic Review o f  the

7 This literature has been peer-reviewed, replicated, and 
retested; it is considered the “gold standard in terms of the 
applicability of social science research to the law.” Young, 698 
F.3d at 79 (quotation marks omitted); see also State v. 
Henderson, 27 A.3d 872 (N.J. 2011).



23

Effects o f  High Stress on Eyewitness Memory, 28 
Law & Hum. Behav. 687, 699 (2004).

Some decisions are more prone to bias, however, 
than others. Researchers like Nobel Prize-winner 
Daniel Kahneman have demonstrated that human 
beings use two cognitive systems to interpret 
information and stimuli. See Daniel Kahneman, 
Thinking, Fast and Slow (2011); Tversky & 
Kahneman, Judgment Under Uncertainty, supra, at 
1124-31. The first of these, “System 1,” governs the 
split-second judgments we make using mental 
shortcuts like heuristics. As shown, System 1 
thinking is prone to systemic errors like implicit bias 
against African Americans. The second cognitive 
system, “System 2,” employs the self-reflective, 
deliberative processes of critical thinking. In other 
words, “System 1 provides snap judgments and offers 
a form of rough-and-ready, bias-prone thinking that 
leans heavily on factual context and previously held 
beliefs. System 2 kicks in after a time delay and 
corrects errors.” Richardson & Goff, Self-Defense, 
supra, at 301 (quotation marks omitted).

Line-level law enforcement officers rely on 
System 1 thinking to navigate the emergent and 
potentially dangerous situations they face every day. 
Indeed, their profession demands it. Thus, Fourth 
Amendment decisional law provides substantial 
leeway for mistaken snap judgments. “The 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



24

amount of force that is necessary in a particular 
situation.” Graham, 490 U.S. at 396-97.

The leeway afforded to snap judgments, however, 
cannot be absolute, especially given the potential for 
action that is biased and wrong. “ [T]o counter 
otherwise automatic behavior, one must accept the 
existence of the problem in the first place.” Kang, 
Trojan H orses o f  Race, supra, at 1529. Thus, courts 
should scrutinize for signs of implicit bias where, as 
here, the evidence prompts “suspicion” that official 
decision-making was influenced by “impermissible 
assumptions” or “invidious stereotypes.” City o f  
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 464- 
65 (1985) (Marshall, J., concurring in part and 
dissenting in part); see also id. at 471 (“Where such 
constraints . . . are present, and where history 
teaches that they have systemically been ignored, a 
‘more searching judicial inquiry’ is required.” 
(quoting United States v. Carolene Prods. Co., 304 
U.S. 144, 153 n.4 (1938)). At a minimum, assiduous 
application of the proper qualified-immunity and 
summary-judgment standards is vitab the broader 
the unearned leeway for defendants, the longer these 
important issues may remain unresolved.

Here, Sergeant Cotton's evaluation of the scene, 
prompting the use of lethal force in asserted 
self-defense, may have been shaped by the implicit 
biases just described. Indeed, despite other evidence 
to the contrary, Sergeant Cotton testified that he 
thought an unarmed “Robbie Tolan was pulling a 
weapon from his waistband area.” Pet. App. 72; see 
id. at 50, 81—84, 86—88, 104. Rather than subject 
this claim to careful analysis or admit the possibility



25

that Sergeant Cotton was unreasonably mistaken, 
the panel dismissed the asserted waistband-reach as 
immaterial, relying on other, more tenuous 
circumstances to support its decision—i.e., that 
Robbie Tolan “verbally threatened” the officer and 
that he “did a push-up maneuver.” Id. at 14—15. 
Respectfully, such a decision lacks justification and 
threatens to bring the law into disrepute.

CONCLUSION

The established practice of “doubling the 
‘objectively reasonable’ inquiry” in excessive force 
cases already “holds large potential to confuse.” 
Saucier, 533 U.S. at 210—11 (Ginsburg, J., 
concurring). Tripled, the inquiry becomes
inscrutable. This is especially ominous where, as 
here, the influence of subconscious stereotypes 
falsely associating race with criminality, aggression, 
and violence may have led to the unjustified use of 
lethal force against an unarmed young
African-American man.

For the foregoing reasons, amicus urges the Court 
to grant the Petition for a Writ of Certiorari.



Respectfully submitted,
26

Sh e r r il y n  Ifil l  
Director- Counsel 

C h r is t in a  Sw a r n s  
J o h a n n a  Ste in b e r g  
J in  H ee  L ee 
V in c e n t  S o u t h e r l a n d  
NAACP L e g a l  D e fe n se  

& E d u c a t io n a l  Fu n d  
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200

December 26, 2013

A n t h o n y  S. Ba r k o w * 
Er ic  D el  P ozo  
R eid  A. A r o n s o n  
N a t a l ie  K. O r p e t t  
J e n n e r  & B l o c k  LLP  
919 Third Ave.
New York, NY 10022 
(212) 891-1622 
abarkow@jenner.com

*Counsel o f  Record

mailto:abarkow@jenner.com