Professor to argue before Supreme Court

By By Rochelle McConkie

By Rochelle McConkie

U law professor Peter Stirba will argue a case before the United States Supreme Court in the fall that he said will set precedence for civil rights and search and seizure cases.

“It will be a landmark decision in the area of qualified immunity,” Stirba said.

Five years ago, Stirba began representing law enforcement officers in a case regarding a methamphetamine bust in Millard County, in which a man named “Mr. Callahan” sold drugs to an undercover informant who was working with police officers. Once the transaction occurred, the informant signalled to the officers outside the house, who entered and arrested Callahan for unlawful distribution of a controlled substance-a felony under Utah law.

After going back and forth in a number of state and federal courts, the U.S. Supreme Court has agreed to hear the case in November, possibly overruling the 2001 decision in Saucier v. Katz, in which the court adopted an approach on how courts should consider qualified immunity based on whether there is a constitutional violation and whether the law is clear.

Hiram Chodosh, dean of the S. J. Quinney College of Law, said he is excited for Stirba and also for his students, who will have the opportunity to discuss the experience as it happens in the fall.

“It reflects in many ways the great lawyer he is,” Chodosh said.

U second-year law student Stephanie Wilson has been working as a law clerk for the case at Stirba’s law firm, Stirba and Associates. Wilson said this is one of the first things she has worked on since she started at the firm, and she is now doing research for the case.

“It’s amazing,” Wilson said. “People who’ve been practicing law for years don’t ever have this experience.”

Wilson will continue to work with Stirba until he argues the case in November and will travel to Washington, D.C., for the hearing.

In the case, Callahan plead guilty in the state court system under the condition that he could appeal whether the evidence was seized in a lawful manner or whether the officers were violating his Fourth-Amendment right by entering his home without a search warrant.

The state intermediate court of appeals determined that there was an unlawful entry and the evidence should be suppressed, making it impossible for the prosecution to move forward. Callahan then filed a lawsuit against the officers in federal court alleging that because his constitutional rights were violated, he was entitled to monetary damages under a federal claim. Under the legal doctrine of consent, once removed, a drug dealer giving consent to the undercover police officer or paid informant to enter the home also implies consent for the officers outside the home to enter immediately and make the arrest if an illegal transaction is made.

The issue had not been raised in a state court, although it had been raised in the federal court at the trial level, Stirba said.

In the trial court, judges ruled that police officers will not be liable for damages if they have qualified immunity, which protects government officials from being liable if there is a breach of constitutional rights. Officers can also obtain immunity if the law is not found to be clearly established.

In this case, neither the circuit court in Utah nor the U.S. 10th Circuit Court of Appeals in Denver, where the case was argued, had ruled on the doctrine of consent once removed. The U.S. Supreme Court had not ruled on it, either, making no precedence for rulings. The federal court dismissed the qualified immunity doctrine, and it was appealed in the 10th Circuit. In a 2-1 decision, judges ruled that the law was clearly established, but the dissent argued that the law couldn’t be clearly established because the issue had never been ruled on before.

Stirba said they applied for a rehearing in the 10th Circuit, which was denied. The next step was to appeal to take the case to the United States Supreme Court, which was granted.

Stirba said the Supreme Court gets 8,000 to 10,000 petitions each term and grants 150 to 180 of them.

“It’s a big deal to have a petition granted,” he said.

Not only did the Supreme Court agree to hear the case, but it informed them to be prepared to brief and argue as to whether the court should overrule Saucier v. Katz.

“Some judges think there should not be such rigid requirements,” Stirba said. “How it should be approached in the lower courts affects all law enforcement and all civil cases filed against law enforcement.”

Stirba said the case will be interesting because Chief Justice John Roberts and Justice Samuel Alito, who were appointed to the court by President George W. Bush, have not addressed the issue.

Briefs for the case will be submitted in May and the case will be argued in November.

Stirba said it is a “huge honor” to argue before the Supreme Court and he will be excited to share the experience with his students when he teaches a pretrial practice course in the fall.

“To share my insights and experiences with students is professionally satisfying,” Stirba said.

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