In an attempt to explain to the Supreme Court that video evidence doesn’t always yield a clear outcome, the students in Georgetown Law’s Appellate Courts Immersion Clinic, working with an Arkansas civil rights law firm, turned to a sports analogy.

They explained in a brief that the existence of a video, even one with multiple camera angles and seen by millions of people, does not necessarily solve a material dispute. A famous video clip from the nail-biting 1972 NFL playoff game between the Pittsburgh Steelers and Oakland Raiders, for example, shows the play, dubbed the Immaculate Reception, that led to the winning touchdown.

But the question of who first touched the ball (and whether it was illegal) is still debated decades later. “Like this case, the video’s existence was undisputed,” the students wrote, “but what the video showed was, and still is, in dispute.”

Cory Turner (L’19), Brian Morganelli (L’19), and Tanner Jean-Louis (L ‘19) — in their opposition to certiorari in Burningham v. Raines — contended that the court of appeals didn’t have jurisdiction to consider whether police officers who shot and paralyzed John Raines III in 2013 were entitled to qualified immunity. The Supreme Court denied cert in January, allowing the case to go forward.

“This helps our client — who was paralyzed in the shooting— because the case will return to the district court so a jury can decide whether the police officers violated clearly established law by shooting him,” Turner said. “And it’s the correct result…an order denying summary judgment based on qualified immunity is not appealable when, as here, there’s a genuine dispute of material fact for the jury to decide.”

First-rate Representation

The Appellate Courts Immersion Clinic handles a wide range of complex public-interest appellate litigation cases. The clinic’s aim, according to its director, Professor Brian Wolfman, is to offer first-rate pro bono appellate representation, with the “same quality, seriousness and devotion as you’d get if you were paying top-dollar.” Wolfman selects cases in which the client is the “little guy going up against the big guy, corporation or government… where they really need our help because they’re not in a position to afford a lawyer.”

Last fall, three third-year students and one teaching fellow immersed themselves in the Raines case — collaborating with Raines’s two lawyers in Little Rock, to write the 22-page brief.

“In much of law school, you’re studying these cases in the abstract, and here [we were] trying to convince the Court that [this] client deserves a trial,” said Morganelli, who is interested in appellate work after graduation. “[We wanted] to get it right, and it was a bit nerve-wracking, because this man was depending on us.”

Jean-Louis (L’19), who has closely followed the issue of police violence, said the stakes felt very high as they went to work every day at the clinic. “There was a lot of gravity to the work,” he said. “This guy is in a bad position after the shooting, and it would have felt really bad if we lost.”

Provocation?

At the center of the case were the disputable facts of a taser cam video, namely, whether or not the officers shot without provocation. The client had sued for excessive force and prevailed at the district court in Arkansas, which said the case needed to go to a jury.

The officers claimed qualified immunity, which provides protection for government officials acting in pursuit of their duties, and appealed. The 8th U.S. Circuit Court of Appeals unanimously held it lacked jurisdiction over the case because the disputed facts. The government then filed a petition for cert, asking the Supreme Court to review the decision — contending that, given the existence of the video, the facts cannot be disputed.

The Arkansas law firm James, Carter & Priebe reached out to Wolfman and the Appellate Courts Immersion Clinic for help. The goal was to get cert denied — in other words, to convince the Supreme Court that the lower court had gotten it right.

“Filing a brief in opposition to a petition for cert is a difficult type of brief to write,” said Bradley Girard (L’14), a teaching fellow who, as a Georgetown student, participated in the civil rights clinic at Georgetown’s Institute for Pubic Representation when Wolfman ran that clinic. “But it’s an important issue. The Supreme Court over the last few years has taken these cases and ruled in favor of granting immunity to the police officer. We knew this would be an uphill battle.”

Here, however, the Supreme Court denied review. “It feels a little weird to celebrate a court saying they’re not going to hear something, but that’s exactly what we wanted,” Girard said. “It’s great for the client and good for the state of the law.”

Honing Skills

Turner said Wolfman encouraged the students to focus on research and writing, and consequently, his skills in both areas are stronger now. “The emphasis was on writing as persuasively as possible, while hitting on all the important points,” Turner said.

The football analogy was unusual for a brief, but it worked, he said, because it was a clear example that could help the justices understand that a video sometimes leads to different interpretations — which was exactly why a jury should decide the case. “If the video did show clearly what happened,” Turner said, “then there would be no facts in dispute. We argued that it was unclear.”

Daniel Carter, one of Raines’s lawyers, said he had never before responded to a writ of certiorari, so working with the Georgetown Law clinic was particularly helpful. He and his law partner, Paul James, talked to the clinic staff on a regular basis, confirming facts, reviewing tactics and workshopping the brief line by line. Occasionally they Skyped.

“The lawyers in Arkansas put their trust in us,” Wolfman said. “What an opportunity for third year law students — one that many lawyers don’t get in their whole career. This case not only has the justice angle but really exemplifies what clinical legal education is all about: learning to work with other lawyers and tell a story on paper—and ultimately to improve the lives of clients.”