In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

MICHIGAN GAMING CONTROL BOARD, et al.,Petitioners,

v.

JOHN MOODY, et al.,Respondents.

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

Brief of Michigan Municipal Risk ManagementAuthority, Government Law Section of the State Bar

of Michigan, Michigan Sheriffs’ Association, andMichigan Association of Chiefs of Police as

Amici Curiae in Support of Petitioners and Reversal

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 17-1142

Marcelyn A. Stepanski Counsel of RecordJOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C.27555 Executive Drive, Suite 250Farmington Hills, MI 48331(248) 489-4100mstepanski@jrsjlaw.com

Counsel for Amici Curiae

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TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE AND BENEFIT TO COURT . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. THE PUBLISHED SIXTH CIRCUIT DECISIONIS IN DIRECT CONFLICT WITH DECISIONSOF THIS COURT AND OTHER CIRCUITS,CREATING UNCERTAINTY AND PERILOUSBARRIERS TO A PUBLIC EMPLOYER’S ORLICENSOR’S ABILITY TO INVESTIGATEALLEGED IMPROPRIETY AND HOLDPUBLIC EMPLOYEES, LICENSEES, ANDCONTRACTORS ACCOUNTABLE IN THEEMPLOYMENT CONTEXT. REVIEWSHOULD BE GRANTED TO RESOLVE THECIRCUIT SPLIT AND PROPERLY APPLYQUALIFIED IMMUNITY. . . . . . . . . . . . . . . . . . . 6

A. The State regulators did not violate the FifthAmendment and the conflict-creatingdecision below is destined to erode publictrust and accountability . . . . . . . . . . . . . . . . . 6

B. Where the Sixth Circuit’s decision conflictswith precedent from this Court and decisionsof other circuits, the right claimed was notclearly established, much less in anyparticularized sense . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIES

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . 7, 17, 18

Brosseau v. Haugen, 543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . 17, 18

Chavez v. Martinez, 538 U.S. 760 (2003) . . . . . . . . . . . . . . . . . . . 12, 20

City of Hays, Kansas v. Vogt, 844 F.3d 1235 (10th Cir. 2017), cert. granted,138 S. Ct. 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cope v. Heltsley, 128 F.3d 452 (6th Cir. 1997) . . . . . . . . . . . . 16, 17

Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008) . . . . . . . . . . . . . . . 17

Everson v. Leis, 556 F.3d 484 (6th Cir. 2009) . . . . . . . . . . . . . . . . 7

In re Federal Grand Jury Proceedings, 975 F.2d 1488 (11th Cir. 1992) . . . . . . . . . . . . . 19

Gardner v. Broderick, 392 U.S. 273 (1968) . . . . . . . . . . . . . . . . . . . . 9, 10

Garrity v. New Jersey, 385 U.S. 493 (1967) . . . . . . . . . . . . . . . . . . passim

Gulden v. McCorkle, 680 F.2d 1070 (5th Cir. 1982) . . . . . . . . . . . . . . 19

Harlow v. Fitzgerald, 457 U.S. 800 (1992) . . . . . . . . . . . . . . . . . . . . . . . 7

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Hester v. City of Milledgeville, 777 F.2d 1492 (11th Cir. 1985) . . . . . . . . . . . . . 19

Lefkowitz v. Cunningham, 431 U.S. 801 (1977) . . . . . . . . . . . . . . . . . . . . . . 13

Lefkowitz v. Turley, 414 U.S. 70 (1973) . . . . . . . . . . . . . . . 5, 12, 13, 20

Maciariello v. Sumner, 973 F.2d 295 (4th Cir. 1992) . . . . . . . . . . . . . . . . 7

Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . 7

Mullenix v. Luna, 136 S. Ct. 305 (2015) . . . . . . . . . . . . . . . . . . . . . 18

Nat’l Acceptance Co. v. Bathalter, 705 F.2d 924 (7th Cir. 1983) . . . . . . . . . . . . . . . 19

Pearson v. Callahan, 555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . 6, 8, 17

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) . . . . . . . . . . . . . . . . . . 6, 18

Rudlaff v. Gillispie, 791 F.3d 638 (6th Cir. 2015) . . . . . . . . . . . . . . . . 7

Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . 16, 17

Sher v. U.S. Dep’t of Veterans Affairs, 488 F.3d 489 (1st Cir. 2007) . . . . . . . . . . . . . . . 18

Uniformed Sanitation Men Ass’n v. Comm’r ofSanitation of City of New York, 392 U.S. 280 (1968) . . . . . . . . . . . . . . . . . . . 10, 11

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Uniformed Sanitation Men v. Comm’r of Sanitation,426 F.2d 619 (2nd Cir. 1970) . . . . . . . . . . . . . . . 19

United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988) . . . . . . . . . . . . . . 19

United States v. Veal, 153 F.3d 1233 (11th Cir. 1998) . . . . . . . . . . . . . 19

CONSTITUTION

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . passim

RULES

Sup. Ct. R. 37.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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INTERESTS OF AMICI CURIAE AND BENEFIT TO COURT1

Michigan Municipal Risk Management Authority

The Michigan Municipal Risk ManagementAuthority (MMRMA) is a pool of over 300 self-insuredmunicipalities and governmental agencies throughoutthe State of Michigan, consisting of cities, counties,townships, villages, and other governmental entities.The MMRMA provides information on issues ofimportance to its members and the public throughmeetings, seminars, public service programs, andpublications. The MMRMA supports the Petitioners’position in this matter and offers a collective public-employer perspective. The MMRMA submits this briefbecause its agencies and members have a substantialinterest in the issues presented in promoting publicaccountability, educating member employers andemployees, and complying with legal precedent.

Government Law Section of the State Bar ofMichigan

The Government Law Section of the State Bar ofMichigan is a voluntary membership section of theState Bar of Michigan, comprised of approximately 701attorneys who generally represent the interests of

1 In accordance with Supreme Court Rule 37.6, amici affirm thatno counsel for a party authored this brief in whole or in part andno such counsel or party made any monetary contribution to fundthe preparation or submission of this brief. Pursuant to SupremeCourt Rule 37.2(a), counsel of record for all parties received timelynotice of amici’s intention to file this brief, and consent to file wasgranted by all parties. Correspondence reflecting the parties’consent has been filed with the Clerk.

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government corporations, including cities, villages,townships and counties, boards and commissions, andspecial authorities. Although the Section is open to allmembers of the State Bar, its focus is centered on thelaws, regulations, and procedures relating to publiclaw. The Government Law Section provides education,information and analysis on issues of concern to itsmembership and the public through meetings,seminars, the State Bar of Michigan website, publicservice programs and publications. The Section iscommitted to promoting the fair and justadministration of public law. In furtherance of thispurpose, the Government Law Section participates incases that are significant to governmental entitiesthroughout the State of Michigan. The Section hasfiled numerous Amicus Curiae briefs in state andfederal courts. The position expressed in this AmicusCuriae Brief is that of the Government Law Sectiononly and is not the position of the State Bar ofMichigan.

Michigan Sheriffs’ Association

The Michigan Sheriffs’ Association (MSA) wasformed in 1877. It is the oldest law enforcementorganization in Michigan and the only organizationofficially representing the Office of Sheriff in Michigan.The MSA represents 83 Sheriffs’ Offices and focuses itsefforts, among other endeavors, on supporting thedevelopment of legislation and legal requirements thatbest serve the Sheriffs and the citizens of Michigan.The MSA monitors pending legislation, court decisionsand state funding resources that affect jail anddepartment operations and local services.

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Michigan Association of Chiefs of Police

The Michigan Association of Chiefs of Police(MACP) is a dynamic association, forever changingthrough the influence and actions of individualmembers who bring their expertise and an impetus forimprovement in the criminal justice system. Theirconcerted efforts are aimed at improving the policeprofession and the quality of life for the citizens of thestate of Michigan. Founded in 1924, the MACP isgoverned by an 18 member Board of Directors. Theassociation is guided by its Constitution, and Article I,Sec. 2 provides for the purposes of the MACP, whichinclude, in relevant part, to advance the science and artof police administration and crime prevention and toseek legislation of benefit to the citizens of the state orlaw enforcement in general. The MACP has over 1100members representing over 500 Municipal, County,State, College, Tribal, Railroad, and Federal policeagencies.

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SUMMARY OF ARGUMENT

The Michigan Gaming Control Board (MGCB) hadevidence that licensed harness-racing drivers wereaccepting money to “fix” results of horse races. TheBoard sought to interview Respondents, the driverlicensees.

Respondents were represented by counsel at theMay 20, 2010 stewards’ hearings. They were advisedof their obligation under the law to cooperate with theinvestigation as a condition to licensure. They alsowere advised that failure to cooperate could result inlicense suspension. They had been directed to providebank records which they failed to produce. Respondents were not asked to surrender or waivetheir immunity afforded by Garrity v. New Jersey, 385U.S. 493 (1967), which recognized that the FifthAmendment automatically protects compelledstatements from later being used against that personin criminal proceedings. Nonetheless, when they werequestioned by regulators during the race-fixinginvestigation, each asserted the Fifth Amendmentprivilege and refused to answer.

MGCB officials suspended the drivers’ licenses forfailure to cooperate and they were later excluded for aperiod of time from MGCB-regulated tracks. Thedrivers sued the Petitioners, claiming that the licensingsanctions violated the Fifth Amendment and the DueProcess Clause.

The district court granted summary judgment infavor of the Petitioners, but the Sixth Circuit reversedin part and held that the licensing sanctions violatedthe Respondents’ Fifth Amendment right against self-

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incrimination. It further held that the regulators couldbe liable for monetary damages and opined that theywould be required to refrain from acting unless theycould prove illegal activity or procure immunityagreements from prosecutorial agencies.

On remand, the district court held that qualifiedimmunity applied to the regulators on the self-incrimination claim where at the time of the challengedconduct the law did not clearly establish a duty toprocure immunity agreements from prosecutors beforepenalizing licensees for refusing to answer regulatoryquestions. The court also granted in part and denied inpart a Due Process claim premised upon a post-exclusion hearing. However, where the focus of Amiciis on the Fifth Amendment claim, its briefing will belimited to that issue.

The Sixth Circuit again reversed. In a dividedpanel, the majority rejected that Garrity automaticallyprovided immunity and further held that the right torefuse to answer incriminating questions unlessimmunity was “offered” was clearly established inLefkowitz v. Turley, 414 U.S. 70 (1973). The dissentobserved that Turley did not constitute clearlyestablished law in the proper context where here,unlike Turley, there were no statutes or regulationsrequiring waiver of immunity in criminal proceedings.

For decades, public employers and regulators havefollowed this Court’s precedent in striking a balancebetween maintaining the public trust and honoringpublic employee and contractor rights against self-incrimination. The Sixth Circuit’s decision disregardsthis Court’s precedent and creates a division amongcircuits. The Petition for Writ of Certiorari should be

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granted and the Sixth Circuit’s decision should bereversed.

ARGUMENT

I. THE PUBLISHED SIXTH CIRCUIT DECISIONIS IN DIRECT CONFLICT WITH DECISIONSOF THIS COURT AND OTHER CIRCUITS,CREATING UNCERTAINTY AND PERILOUSBARRIERS TO A PUBLIC EMPLOYER’S ORLICENSOR’S ABILITY TO INVESTIGATEALLEGED IMPROPRIETY AND HOLDPUBLIC EMPLOYEES, LICENSEES, ANDCONTRACTORS ACCOUNTABLE IN THEEMPLOYMENT CONTEXT. REVIEW SHOULDBE GRANTED TO RESOLVE THE CIRCUITSPLIT AND PROPERLY APPLY QUALIFIEDIMMUNITY.

A. The State regulators did not violate theFifth Amendment and the conflict-creatingdecision below is destined to erode publictrust and accountability

In Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), thisCourt reiterated that “qualified immunity is ‘animmunity from suit rather than a mere defense toliability.’” Id., at 2018-2019. It is ‘both important andcompletely separate from the merits of the action, andcannot be effectively reviewed on appeal from a finaljudgment because by that time the immunity fromstanding trial will have been irretrievably lost.’ Id.,citations omitted. As a result, resolution of immunityissues “at the earliest possible stage” is favored to avoiderroneously permitting a case to proceed to trial.Pearson v. Callahan, 555 U.S. 223, 231-232 (2009).

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Government officials performing discretionaryfunctions generally are shielded from liability fordamages insofar as their conduct does not violateclearly-established statutory or constitutional rights ofwhich a reasonable person would have known. Harlowv. Fitzgerald, 457 U.S. 800, 818 (1992). The contours ofthe right must be sufficiently clear so that anobjectively reasonable officer would understand thatwhat he or she is doing violates that right. Anderson v.Creighton, 483 U.S. 635, 639-640 (1987). Qualifiedimmunity is broadly construed to shield “all but theplainly incompetent or those who knowingly violate thelaw.” Malley v. Briggs, 475 U.S. 335, 341 (1986). InMalley, this Court extended the Harlow rule and heldthat government officials are entitled to qualifiedimmunity unless, on an objective basis, it is obviousthat no reasonably competent official would haveconcluded that the conduct was lawful; but if officialsof reasonable competence could disagree on the legalityof the action, immunity should be recognized. Malley,at 341.

Put another way “officials are not liable for badguesses in gray areas; they are liable for transgressingbright lines.” Rudlaff v. Gillispie, 791 F.3d 638, 644(6th Cir. 2015), quoting Maciariello v. Sumner, 973 F.2d295, 298 (4th Cir. 1992).

In determining whether qualified immunity applies,our courts consider: (1) whether a constitutional righthas been violated, and (2) whether that right wasclearly established such that the official’s conduct wasobjectively unreasonable in light of such clearlyestablished law. Everson v. Leis, 556 F.3d 484, 494 (6th

Cir. 2009). Courts may address these prongs in any

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order, and any one may be dispositive. Pearson, supraat 236.

Here, the State regulators did not violate the FifthAmendment where they had the duty to investigate theallegations of race-fixing by its licensees, and Garrityimmunity applied to prevent the use of statements inany subsequent, possible criminal proceedings. TheSixth Circuit’s erroneous decision appears to arise froma fundamental misapplication of Garrity v. New Jersey,385 U.S. 493 (1967) and its progeny. Where a publicemployee, contractor, or licensee is compelled, ordered,or directed to provide information to his publicemployer or licensor, Garrity provides that any suchstatements, testimony, or information cannot be usedagainst him in a criminal prosecution. As the Petitionastutely demonstrates, the overwhelming majority ofcircuits having addressed the application of Garrityhave concluded that immunity arising therefrom isautomatic.

In Garrity, former police officers were convicted ofobstruction of justice in connection with “fixing” traffictickets. When questioned by the attorney general, theywere warned that their answers might be used againstthem. They were told that they could refuse to answer,but if they did, they would be dismissed. Id., at 495.The officers answered, and their answers weresubsequently used against them in criminalprosecutions. This Court reversed their convictionsand expressly held as follows:

We now hold the protection of the individualunder the Fourteenth Amendment againstcoerced statements prohibits use insubsequent criminal proceedings of

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statements obtained under threat of removalfrom office, and that it extends to all, whetherthey are policemen or other members of our bodypolitic. Id., at 500, emphasis added.

No promise of immunity or written agreement froma prosecutorial agency was required. Rather,immunity occurred automatically, prohibitingstatements made under the threat of loss ofemployment from being used in subsequent criminalproceedings. While a public employee no longer had tofret that his statements rendered under the threat ofdismissal could be used in criminal proceedings, hecould no longer erect a barrier to insulate himself fromhis employer’s employment-related investigatoryquestions or disciplinary action.

In Gardner v. Broderick, 392 U.S. 273 (1968), a NewYork City patrolman was discharged after he refusedto waive his privilege against self-incrimination beforea New York County grand jury investigating allegedbribery and corruption of officers in connection withunlawful gambling operations. He was asked to sign a‘waiver of immunity’ (given that such immunitypreexisted) after being told that he would be fired if herefused. Following his refusal, he was discharged. Id.,at 274-275.

Importantly, the petitioner there was terminated for1) refusing to waive the immunity afforded him byGarrity while 2) he was before a grand jury - not hisemployer. Those salient facts carried the day inGardner:

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If appellant, a policeman, had refused to answerquestions specifically, directly, and narrowlyrelating to the performance of his official duties,without being required to waive his immunitywith respect to the use of his answers or thefruits thereof in a criminal prosecution ofhimself, Garrity v. State of New Jersey, supra,the privilege against self-incrimination wouldnot have been a bar to his dismissal.

The facts of this case, however, do not presentthis issue. Here, petitioner was summoned totestify before a grand jury in an investigation ofalleged criminal conduct. He was dischargedfrom office, not for failure to answer relevantquestions about his official duties, but for refusalto waive a constitutional right. … He wasdismissed solely for his refusal to waive theimmunity to which he is entitled if he isrequired to testify despite his constitutionalprivilege. Garrity v. State of New Jersey, supra.

…It is clear that petitioner’s testimony wasdemanded before the grand jury in part so thatit might be used to prosecute him, and not solelyfor the purpose of securing an accounting of hisperformance of his public trust. If the latter hadbeen the only purpose, there would have been noreason to seek to compel petitioner to waive hisimmunity.

Gardner, supra at 278-279, emphasis added.

Similarly, in Uniformed Sanitation Men Ass’n v.Comm’r of Sanitation of City of New York, 392 U.S. 280(1968), the petitioners were not discharged merely for

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refusal to account for their conduct as city employees.Rather, three were asked to sign waivers of immunitybefore a grand jury and refused, and twelve were toldthat their answers to questions by the Commissioner ofInvestigation could be used against them in subsequentproceedings. Id., at 283-284. Consequently, thepetitioners could not answer the questions posedwithout fear of their statements being used againstthem in subsequent criminal proceedings.

Here, Respondents were not asked to waive theimmunity afforded by Garrity, nor were theythreatened with use of their statements against themin subsequent criminal proceedings. Given thesesignificant distinctions, Respondents could not thwartthe stewards’ investigative efforts into the allegationsof wrongdoing. Indeed, this Court said as much almost50 years ago in Uniformed Sanitation:

At the same time, petitioners, being publicemployees, subject themselves to dismissal ifthey refuse to account for their performance oftheir public trust, after proper proceedings,which do not involve an attempt to coerce themto relinquish their constitutional rights. Id., at284-285.

Because use immunity under Garrity applies,Respondents would not have been required torelinquish their constitutional rights in fulfilling theirobligation to respond to the stewards’ questions andproduction directives. Any incriminating statementsand fruit therefrom could not have been used againstthem in subsequent criminal proceedings when facedwith the loss of their licenses for failure to cooperate.

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The majority’s reliance on Turley, supra, is woefullymisplaced where it failed to heed the context of thatdecision. In Turley, challenged New York statutesimposed sanctions on government-contracted architectsfor refusing to testify before a grand jury or for refusingto waive immunity against subsequent criminalprosecution. Id., at 75-76. Conversely, the MichiganGaming Control Board (MGCB) did not require theharness drivers to testify before a grand jury or waivetheir immunity under Garrity from use of theirstatements in a criminal prosecution. Where thestatutes in Turley sought to strip the contractors ofGarrity immunity before a grand jury or in a criminalprosecution, it made complete sense for the Court toindicate that such immunity had to be “offered” orrestored. Unlike the statutes in Turley, nothing hererequired the alleged wrongdoers to testify before agrand jury or in a criminal prosecution. Garrityimmunity applied, rendering it wholly unnecessary to“offer” it before compelling cooperation in anemployment or licensee context.

The regulators’ position also comports with Chavezv. Martinez, 538 U.S. 760 (2003). The respondentswere not required to waive their privilege against self-incrimination, nor were their statements used againstthem in a criminal proceeding (or at risk of being usedbased on Garrity). Rather, the regulators sought toinvestigate the allegations of wrongdoing in alicensor/licensee context to maintain public trust andconfidence.

Indeed, the panel majority below also failed toacknowledge that this Court resolved the tensionbetween the public employer/regulator’s need to secure

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testimony and the employee/licensee’s right againstself-incrimination. Under Garrity, an employee who iscompelled to testify under the threat of dismissal (or,by parity of reasoning, loss of license) is immune fromuse of such compelled testimony in a criminalproceeding. At the same time, the public employer orregulator has means at its disposal to “insist thatemployees either answer questions under oath aboutthe performance of their job or suffer the loss ofemployment.” Turley, at 84.

“By like token, the State may insist that thearchitects involved in this case either respond torelevant inquiries about the performance of theircontracts or suffer cancellation of currentrelationships and disqualification fromcontracting with public agencies for anappropriate time in the future. But the State maynot insist that appellees waive their Fifth Amendmentprivilege against self-incrimination and consent to theuse of the fruits of the interrogation in any laterproceedings brought against them. Rather, the Statemust recognize what our cases hold: that answerselicited upon the threat of the loss of employment arecompelled and inadmissible in evidence.” Id., at 84-85, emphasis added. See accord, Lefkowitz v.Cunningham, 431 U.S. 801, 806 (1977), (“publicemployees may constitutionally be discharged forrefusing to answer potentially incriminating questionsconcerning their official duties if they have not beenrequired to surrender their constitutional immunity”).

In reaching its desired result, the Sixth Circuitdisregarded decades of precedent promulgated by thisCourt, created a division among circuits, and disrupted

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the balance struck by public employers and regulatorsin attempting to maintain public trust and confidencewhile honoring employee and licensee rights againstself-incrimination. The Sixth Circuit mandated acumbersome and ill-conceived requirement that publicemployers and regulators must procure immunityagreements from any and all potential prosecutorialagencies – local, state, federal, and administrative –before a public employee, contractor, or licensee can bedisciplined or penalized for refusal to answer questionsregarding the performance of their public duties orregulated activities.

When investigating allegations of illegal activity orwrongdoing, literally thousands of public employersand regulators have followed this Court’s precedent instriking a balance between maintaining publicconfidence in the proper performance of public dutiesand activities, and honoring public employee andcontractor rights against self-incrimination. The SixthCircuit’s decision unhinges that balance, serves tofurther erode public trust, and imposes an unrealisticand impractical burden on public employers andregulators.

The Sixth Circuit decision not only fuels publicmistrust but it affects public safety. For example, astate regulator may be presented with evidence that abuilder is using faulty materials and engaging inhazardous practices. The Sixth Circuit decision wouldprevent the regulator from revoking the builder’slicense where the builder refuses to cooperate with aninvestigation based upon an assertion of his rightagainst self-incrimination, unless the regulator could“prove” illegal activity without compelling the officer’s

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participation or first obtained immunity agreementsfrom various potential prosecutorial agencies.

Similarly, a taxi-cab driver could be accused ofmisconduct but refuse to cooperate or provide hisdriver’s manifest requested by the licensor ininvestigating the matter.

A police officer or sheriff’s deputy could be involvedin a duty-related shooting, where elements of a “hatecrime” are alleged. Before a police chief or sheriff couldquestion the officer and compel cooperation at the riskof discipline, that employer would be required by theSixth Circuit to “prove” illegal activity or seek andobtain use immunity from both state and federalprosecutors, despite that Garrity immunity appliesautomatically.

Likewise, a worker at a government nuclear powerplant might be accused of stealing chemicals andconfidential materials but could not be disciplined orterminated for failure to cooperate with theinvestigation without first obtaining use immunityfrom various prosecutors.

A physician involved in collegiate sports couldsexually assault minor athletes, but could not bedisciplined or terminated for failure to cooperate unlessimmunity was first procured from potential prosecutingagencies.

The list goes on and on. Some allegations couldeasily trigger the necessity of obtaining agreementsfrom local, state, federal, and administrative agencies. Innumerable scenarios can be envisioned under theSixth Circuit’s decision which would erode public trustand hobble public employers and regulators from

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safeguarding their citizens. Immunity conferred byGarrity does not turn on an express grant or denial ofan offer. Rather, it arises from compulsion. Where apublic employee or licensee is compelled to answeremployment-related questions posed by the employeror regulator in lieu of termination of employment,Garrity provides that those statements cannot beadmitted in a subsequent criminal proceeding. Theemployer or regulator is able to conduct itsinvestigation, and the employee or, in this case,licensee, retains its privilege against self-incriminationthrough immunity granted by operation of law.

The Sixth Circuit’s contortion not only lacks alegitimate basis in the very cases it cited, but thedecision blatantly contravenes this Court’s priorrulings and those of the overwhelming majority ofother circuits.

B. Where the Sixth Circuit’s decision conflictswith precedent from this Court anddecisions of other circuits, the rightclaimed was not clearly established, muchless in any particularized sense

For purposes of qualified immunity, a right is“clearly established” when “it would be clear to areasonable officer – or in this case, regulator – that hisconduct was unlawful in the situation that heconfronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).For qualified immunity to be surrendered, “pre-existinglaw must dictate, that is, truly compel (not just suggestor allow or raise a question about), the conclusion forevery like-situated, reasonable government agent thatwhat defendant is doing violates federal law in thecircumstances.” Cope v. Heltsley, 128 F.3d 452, 459 (6th

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Cir. 1997). “The contours of the right must besufficiently clear that a reasonable official wouldunderstand that what he is doing violates the right.”Anderson, supra at 640; Brosseau v. Haugen, 543 U.S.194, 198-200 (2004).

Our courts must determine whether the right hasbeen recognized in a particularized, relevant sense. Anderson, supra. In other words, while a generalizedright to be free from such things as unlawful searchesand self-incrimination is “clearly established,” thisCourt requires a more particularized inquiry, probing“whether it would be clear to a reasonable officer thathis conduct was unlawful in the situation heconfronted.” Saucier, at 202.

When conduct is within the ‘hazy border’ of aconstitutional right, it cannot be said that agovernment officer violated a ‘clearly established’ right. Brosseau, supra at 198. Because “reasonable mistakescan be made as to the legal constraints on particular …conduct,” qualified immunity “protects all but theplainly incompetent or those who knowingly violate thelaw.” Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir.2008).

In Pearson, supra, this Court unanimouslyreiterated that “the protection of qualified immunityapplies regardless of whether the government official’serror is ‘a mistake of law, a mistake of fact, or amistake based on mixed questions of law and fact.’” Id., at 231. In other words, qualified immunity covers“mistakes in judgment, whether the mistake is one offact or one of law.” Id., emphasis added. “Qualifiedimmunity shields an officer from suit when [he] makesa decision that, even if constitutionally deficient,

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reasonably misapprehends the law governing thecircumstances [he] confronted.” Brosseau, supra at198. The ultimate question is “whether a reasonable[officer] could have believed the [challenged action] tobe lawful, in light of clearly established law and theinformation [he] possessed.” Anderson, at 641.

With respect to the “clearly established” nature ofthe right, this Court in Plumhoff, supra, stressed that“existing precedent must have placed the statutory orconstitutional question confronted by the officialbeyond debate.” Id., at 2023, emphasis added. Seealso, Mullenix v. Luna, 136 S. Ct. 305 (2015). Theplaintiff bears the burden of showing that defendantsare not entitled to qualified immunity.

The Tenth Circuit, in City of Hays, Kansas v. Vogt,844 F.3d 1235 (10th Cir. 2017), cert. granted, 138 S. Ct.55, granted immunity to the individual officersinvolved because it was not clearly established thatpretrial use of Vogt’s statements would violate theFifth Amendment. Id., at 1248. Where pretrial use ofstatements was not clearly violative, it is beyond cavilthat the present case warrants qualified immunity.

Contrary to the Moody II majority, public employersand regulators are not precluded from taking actionwhen an employee or licensee refuses to cooperateunder the guise of self-incrimination in answeringemployment-related inquiries. Garrity use immunityarises by operation of law, and the Sixth Circuit’sdecision stands in stark contrast to other cases on thisfront. See e.g., Sher v. U.S. Dep’t of Veterans Affairs,488 F.3d 489, 501-502 (1st Cir. 2007) (threat of removalwas sufficient to constitute coercion for purpose ofGarrity immunity and federal employee had no basis

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under Fifth Amendment for refusing to answeremployer’s questions; no specific grant of immunity isnecessary); Uniformed Sanitation Men v. Comm’r ofSanitation, 426 F.2d 619, 624 n. 2 (2nd Cir. 1970) (thevery act of telling the witness that he would be subjectto removal if he refused to answer was held to haveconferred such immunity); Gulden v. McCorkle, 680F.2d 1070, 1075 (5th Cir. 1982) (the fact that testimonywas compelled prevents its use in subsequentproceedings, not any affirmative tender of immunity);United States v. Veal, 153 F.3d 1233, 1239 n. 4 (11th

Cir. 1998) (“The Fifth Amendment protection affordedby Garrity to an accused who reasonably believes thathe may lose his job if he does not answer investigationquestions is Supreme Court-created and self-executing;it arises by operation of law; no authority or statuteneeds to grant it”); In re Federal Grand JuryProceedings, 975 F.2d 1488, 1490 (11th Cir. 1992)(Garrity provides immunity to police officers whowitness potentially criminal activity and are asked toprovide information to police internal investigationpersonnel); Nat’l Acceptance Co. v. Bathalter, 705 F.2d924, 928 (7th Cir. 1983) (statements made under threatof termination would be immunized by Garrity); UnitedStates v. Friedrick, 842 F.2d 382, 396 (D.C. Cir. 1988)(FBI employee subject to administrative investigationenjoyed use immunity); and Hester v. City ofMilledgeville, 777 F.2d 1492, 1496 (11th Cir. 1985)(privilege against self-incrimination affords a form ofuse immunity which, absent waiver, automaticallyattaches to compelled incriminating statements as amatter of law).

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Likewise, it was respondents’ obligation to provideclearly established authority, demonstrating in aparticularized sense to the situation confronting theregulators, that they could refuse to answer questionsunder the protective umbrella of Garrity immunity andnot face any licensing or exclusion consequences fromdoing so. This they failed to do. As previously briefed,the challenged conduct does not run afoul of eitherTurley or Chavez. Rather, it comports with it. TheSixth Circuit decision contravening precedent from thisCourt and other circuits must be reversed.

CONCLUSION

For all of the foregoing reasons and those discussedin the Petition for a Writ of Certiorari, Amici Curiaerespectfully request that this Supreme Court grantreview of this matter.

Respectfully submitted,

Marcelyn A. Stepanski Counsel of RecordJOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C.27555 Executive Drive, Suite 250Farmington Hills, MI 48331(248) 489-4100mstepanski@jrsjlaw.com

Counsel for Amici Curiae

Dated: March 16, 2018