Whether the Fourth Amendment governs excessive force claims by students against school officials, resolving a circuit split on the appropriate constitutional standard for analyzing such claims

No question identified. : (Ex. 2). The petitions for panel rehearing and rehearing en banc were denied on October 10, 2023. Ex. 3. The current deadline for filing a petition for a writ of certiorari is January 8, 2024. This application is being filed more than 10 days before the date the petition is due. See Sup. Ct. R. 13.5. The jurisdiction of this Court is based on 28 U.S.C. § 1254(1). This request is unopposed. 2. Good cause exists for an extension. The attorney who served as lead counsel for the applicants in the Fifth Circuit and who will serve as counsel of record before this Court, Elizabeth Cruikshank, has applied for admission to the bar of this Court, and her application for admission on written motion is pending. 3. An extension is further justified by the press of business on other matters for which Ms. Cruikshank has responsibilities, including a response to a summary judgment motion in Torres v. Collins, No. 20CV-0026 (E.D. Tenn.), filed December 18, 2023; a brief in opposition to certiorari in Lewis County v. Helphenstine, No. 23-259 (U.S.), due December 29, 2023; a response to a motion for miscellaneous relief in Butler v. Prince George’s County, No. 22-CV-1768 (D. Md.), due February 7, 2024; and ongoing litigation, including depositions and a preliminary injunction hearing in March 2024, in Butler v. Prince George’s County. 4. In addition, an extension is warranted because this case presents a substantial question of law on which the federal courts of appeals are divided: whether the Fourth or Fourteenth Amendment governs claims that a school official has used excessive force against a student. The majority of circuits generally analyze such claims under the Fourteenth Amendment and require students to demonstrate that the force used “shocks the conscience.” See, e.g., Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001); Hall v. Tawney, 621 F.2d 607, 611 (4th Cir. 1980); Webb v. McCullough, 828 F.2d 1151, 1158 (6th Cir. 1987); Wise v. Pea Ridge Sch. Dist., 855 F.2d 560, 564 (8th Cir. 1988); Garcia ex rel. Garcia v. Miera, 817 F.2d 650, 655 (10th Cir. 1987); Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000). In a minority of circuits, however, these excessive force claims are governed by the Fourth Amendment. See Wallace ex rel. Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1014 (7th Cir. 1995); Preschooler IT v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1180 (9th Cir. 2007). The majority rule squarely conflicts with this Court’s precedent. As this Court held in Graham v. Connor, “[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against ... physically intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process, must be the guide for analyzing” claims that officials have used excessive force. 490 U.S. 386, 395 (1989). It is also inconsistent with this Court’s recognition that the Fourth Amendment’s “constitutional guarantee” extends to “seizures by state officers, including public school officials,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (citation omitted), and its rejection of the notion that “school officials are exempt from the dictates of the Fourth Amendment,” New Jersey v. T.L.O., 469 U.S. 325, 336 (1985). An extension of time will help to ensure that the petition clearly and thoroughly presents the vitally important and complicated issues raised by the Fifth Circuit’s decision. 5. For the foregoing reasons, applicants hereby request an extension of time, up to and including February 22, 2024, within which to file a petition for a writ of certiorari. Respectfully submitted, /s/ Kelsi Brown Corkran Kelsi Brown Corkran Counsel of Record INSTITUTE FOR CONSTITUTIONAL ADVOCACY & PROTECTION, GEORGETOWN UNIVERSITY LAW CENTER 600 New Jersey Ave. NW Washington, DC 20001 (202) 661-6728 December 28, 2023 Exhibit 1 Case