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More on Ninth Circuit Decision Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers:

I blogged about this case (written by my former boss Judge Kozinski) in November, when the Ninth Circuit ordered the defendants to "show cause ... why they should not be assessed double costs and attorney's fees for filing a frivolous appeal."

The defendants (represented by the City Attorney's office) responded; yesterday the Ninth Circuit issued a follow-up opinion rejecting their explanation, and faulting them for misrepresenting portions of the record. Memo to lawyers: Be sure your descriptions of the facts in the case are completely accurate; as an ethical matter, you should always do this, but as a practical matter, you should be especially sure to do it if the court has already expressed some skepticism about your professional judgment.

The Tacoma News-Tribune, by the way, reports that "City Manager Eric Anderson ... Anderson said he'll hire an independent counsel to study whether the city attorney's staff acted properly within the scope of their duties in the case."

UPDATE: A reader kindly passed along the link to the original November opinion, which I couldn't find before.

Related Posts (on one page):

  1. More on Ninth Circuit Decision Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers:
  2. Ninth Circuit Opinion Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers,
Public_Defender (mail):
Oral argument is here.

Judge Kozinski was not pleased. He told the city attorneys:

"I think the jury in Tacoma treated you guys really well. I was surprised by how little they gave."

Judge Kozinski conlcuded the city attorneys' argument by saying:

"Boy, was this a parsimonious jury. You should have thanked them."

The appellees' lawyer did exactly what he should have done when it was his turn to speak. He waived. I've never had the guts to do that, but in hindsight, I should have a couple of times.
1.17.2007 7:13pm
Kovarsky (mail):
it seems that rulings like this are the premise of scalia's hudson opinion (not a bad result, but infirm reasoning). you can't have your cake and eat it too.
1.17.2007 9:21pm
Dave Hardy (mail) (www):
When it's obvious that you're in trouble, it's good to be apologetic, and not "push the record" to keep a client happy. That just begs for a haymaker.

Been in government, know how it is. Groupthink. Nobody in the room wants to be the first to say "Hey, we are in a load of trouble here, because we screwed up." Once really, really, put my neck out on something like that, and settled while the boss was out of town. Later he thanked me, and said I'd pulled him out just before the blade descended. I had, but he was exceptionally insightful to see that, and there were lots of bureaucrats who would just have said I went against "the position."

Actually, now remembering, he was my acting boss at the time. His boss (later a Secretary of Interior) later asked me for my impressions of him, and another who had been my acting boss. I replied simply that I'd put my butt on the line to save him. The other acting ... no, they had been pretty ... well, crass, did their job, but never made me feel loyal or friendly. If their tail and been on the line, personal liability on a Biven-type case with possible puntives, I would have done the same as they did. Do my job and no more, not stick my neck out and try to protect them. If you're talking people-skills, they had failed.

Probably the same here.
1.17.2007 11:07pm
David M. Nieporent (www):
The appellees' lawyer did exactly what he should have done when it was his turn to speak. He waived. I've never had the guts to do that, but in hindsight, I should have a couple of times.
I've had it happen once or twice. Let me tell you, it's the best feeling in the world. It's not that it takes guts to do it; it just takes discipline not to try to gild the lily.
1.17.2007 11:41pm
BruceM (mail) (www):
Shouldn't you at least ask the Judges if they have any questions before waiving your opportunity to address the Court? That's what I would do if I were convinced beyond any peradventure that the Court was on my side.
1.18.2007 12:12am
ReaderY:
Waiving oral argument may not have been the plaintiff's original idea. A question like "Is there anything you need to add?" seems a pretty strong hint that waiver might be a good idea.
1.18.2007 1:36am
David M. Nieporent (www):
Shouldn't you at least ask the Judges if they have any questions before waiving your opportunity to address the Court? That's what I would do if I were convinced beyond any peradventure that the Court was on my side.
Bruce, if you didn't click on the audio link, I would recommend it. (It's about 10 minutes long.) In many circumstances, sure you should -- but in the situation in that case, no, you shouldn't. There was nowhere to go but down from where the plaintiff was. When the court says, "I'm going to rule in your favor" (which is only a tiny paraphrase of Kozinski here), you say, "Thank you" and shut up.
1.18.2007 5:10am
Andy Treese:
I'm generally a fan of Judge Kozinski because his opinions are typically clear and readable. While I agree that the outcome of the case was correct, I'm not particularly persuaded by one passage of the opinion. At the end of a passage laying out alternate strategies available to the officers, the judge says:



The fact that it took the police forty minutes to respond to Staples's second call confirms the absence of exigency. The delay was no doubt caused by the low priority the communications officer assigned to the call by coding it as
than a "burglary in progress."


I'm sure the low priority resulted in the delay, and I see how the priority and delay demonstrate that the police - at least initially - didn't initially treat this as a critical call.

However I don't know how a delayed response to the scene "confirms" the presence or absence of exigency once the officers arrived. The exigency analysis is (or should be) based on what the officers knew at the time of the entry, not how a dispatcher coded the call, or the response time to the house.
1.18.2007 9:07am
Andy Freeman (mail):
> The exigency analysis is (or should be) based on what the officers knew at the time of the entry, not how a dispatcher coded the call, or the response time to the house.

As the opinion makes clear, the officers on the scene didn't know anything other than what the dispatcher coded.

While it's possible to imagine additional information obtained on the scene that would justify their actions, information that was unavailable to the dispatcher, there's no evidence that these officers actually had such information.

Remember also that it wasn't their first call to that address.
1.18.2007 9:38am
Houston Lawyer:
I'm not a trial lawyer, but did get to make an argument before the judge in a bankruptcy case. After the other side spoke, the judge made a remark and I was rising to speak again. My esteemed co-counsel, who has about 30 years of bankruptcy practice under his belt, physically restrained me from rising, and then whispered that the judge had already made up his mind in our favor. It's nice to learn at the hands of a master.
1.18.2007 10:19am
Amy (mail):
Number one rule when issued a show cause order: ACT SORRY! What idiots.
1.18.2007 2:08pm
ReaderY:
I really loved the "Just because they had a formal marital relationship doesn't mean..."

Claiming that the only difference between a spouse and complete stranger is a mere formality!

The Chutzpah!!

Kozinski's "Do they have warrants in Tacoma?" was richly deserved!!
1.18.2007 10:08pm
Public_Defender (mail):
My guess is that the city attorneys were used to practicing in courts where the mere invocation of officer discretion ends the discussion. Some prosecutors get used to the compliant judges in their local courts, and don't know how to deal with judges who will listen to an opposing argument.

It was a nice touch for Kozinski to require service of the decision on the government officials, but he also should have required service on the local police union. Sometimes, police unions demand nearly blind loyalty from elected officials in return for endorsements. Police union pressure could have been another reason for the frivolous appeal.

Finally, many prosecutors/AG's win so much they just don't know how to accept a loss. Most prosecutors act graciouly in defeat, but too many act like someone just took their first born.
1.19.2007 5:14am
raj (mail):
Yet another correct opinion from a conservative appeals court judge (from the 9th circuit no less).

And some people wonder why obvious lawlessness on the part of the police in the United States is oftentimes swept under the rug.
1.19.2007 1:22pm