Petition for Writ of Certiorari — Thrash v. Gulliford

, Supreme Court, U.S.

i

97 208 B JUN 221998

NO.

FFIGc OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1997

DEPUTY PAUI. THRASH,

Petitioner,

V.

HERBERT GULLIFORD,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN W. LADENBURG

Pierce County

Prosecuting Attorney

By

DANIEL R. HAMILTON

Deputy Prosecutor

Attorneys for Petitioner

955 Tacoma Ave. S.

Suite 301

Tacoma, WA 98402

PH: (253) 798-7746

NO.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1997

HERBERT GULLIFORD,

Respondent/Appellant,

Vv.

DEPUTY PAUL THRASH,

Petitioner/Appellee.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN W. LADENBURG

Pierce County

Prosecuting Attorney

By

DANIEL R. HAMILTON

Deputy Prosecutor

Attorneys for Petitioner

955 Tacoma Ave. S.

Suite 301

Tacoma, WA 98402

PH: (253) 798-7746

QUESTIONS PRESENTED FOR REVIEW

i. Where a suspect verbally opposes

police while at the same time he

physically commits a crime, does the First

Amendment overcome the Fourth Amendment to

shield him from arrest?

2. Where a Circuit Court interprets

certain police conduct as unconstitutional

but a state court upholds it under the

same federal provision, do police of that

state violate “clearly established” rights

and lose their qualified immunity by

relying on their state court's precedent?

3. May a party fail to object to an

instruction and then have the jury's ver-

dict overturned where he never appraises

the trial court of the claimed error and

affirmatively misleads it on the issue?

LIST OF ALL PARTIES TO THE PROCEEDING

BEFORE THE NINTH CIRCUIT

Appellant: Herbert Gulliford

Attorney of

Record: Joel A. Feldman

14706 Union Ave. S.W.

Lakewood, WA 09498

PH: (253) 582-6109

Appellees: Deputy Paul Thrash

Attorney of

Record:

Deputy Terrel Larson

Deputy Patrick Donnelly

Daniel R. Hamilton

Deputy Prosecutor

955 Tacoma Avenue South

Suite 301

Tacoma, WA 98402

PH: (253) 798-7746

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AND STATUTES INVOLVED 1

IV. STATEMENT OF THE CASE 1

V ARGUMENT 8

- ill -

TABLE OF AUTHORITIES

Cases

, 483 U.S. 635,

641, 97 L.Ed.2d 523, 107 S.Ct. 3034

(1987) . . . > . ° * * . . . ° * aoe 17

eA eRODe, UB. , 137

L.Ed.2d 170, 117 S.ct. 1055,

1076 n. 11 (1997) ee ee ee ee ee

, 706 F.Supp.

1156, 1163 (E.D. PA 1989)

7 . >. — e * 7 o > > oe a . «. > - ia . . 13

, 490 U.S.

605, 617, 109 S.Ct. 2037,

104 EMR. 06 606 41908) 6-5 kk SS

, 879 F.2d 473,

475-76 (9th Cir. 1988) Be, et eee

, 754 F.2d 1512,

Laan Geen Cae. SOG) kee eS St a

, 779 F.2a 1033,

AGG) 4000 Cie, SOON) 6k oe 8s

Cox v. Louisiana, 379 U.S. 536,

555, 13 L.Ed.2d 471, 85 S.Ct. 453

(1965)

* * * a a J a - * > — oe 2 o a *- - > * 13

, 468 U.S.

183, 195, 104 S.Ct. 3012,

62 L.Ed.24 139 (1984) . ..... 20, 21

Elder _v. Holloway, 510 U.S. 510,

51€, 114 S.Ct. 1019, 127 L.Ed.2a

Oe: SEO sa eae ae ee a ee

o iV «

OES EE MELEE. SOCIAL CI, ht Ci Sa AT

336 U.S. 490, 502, 69 S.Ct. 684,

93 L.Ed. 834 (1949) . . « « « «

Glover v. BIC Corp, 6 F.3d 1318,

3526 1008 Cae. 4903) 6 6S es

Southmark Corp., 896 F.2d 1149,

4363465 19Gh Cit. 1990) ss.

Gulliford v. Pierce County,

136 F.3d 1345(9th Cir. 1998)

Hannula v. City of Lakewood, 907

F.2d 129, 131 (10th Cir. 1990)

Harlow v. Fitzgerald, 457 U.S.

800, 818, 73 L.Ed.2d 396, 102

Oe. Re COON na a

Hebron v. Touhy, 18 F.3d 421,

G26 <708 Git. TOE) os 6 ee

Houston v. Hill, 482 U.S. 451,

462 n.11, 97 L.Ed.2d 398, 107

S.Ct. 29602 (i067) » « © » «© « Ai,

Lockhart v. Fretwell, 506 U.S.

364, 375-76, 113 S. Ct. 838,

122 L.Ed.2G@ 180 (1993) ....

Malik v. Brown, 71 F.3d 724,

Tat Ae ac A) ca Ss

Mozzochi v. Borden, 959 F.2d

1174, 1179-80 (2nd Cir. 1992) .

Q'Connoxy v. Donaldson, 422 U.S.

563,577, 95 S.Ct. 2486, 45

lic MvaGa SRO 2. 6s 6% 8 8

ee. be

o « 24

. . 25

i, 7, 9

“Sa ee

14, 21

o o 25

16, 18

a ee?

* a 19

* > 13

"ie mee

ane €.90 4,7 (een Cir. 3062) 5 . i + 23

State v. Lalonde, 35 Wn.App. 54,

61-62, 655 P.2d 421 (1983)

Pee Ee ee we te hee eee ye te

, 926 F.2d

926, 993 (9th Cie. 1998) 6 kk we AR, 3?

. 843

V.a0 2000, inee 1008 Civ.) .. 4 cs kk XS

, 944 F.2¢

1458, 1464 (9th Cir. 1991), cert,

denied, 503 U.S. 975 (1992)

. . . >. . * . . al > . * ° a . * > o 24

Donatitutions) provies

U.S. Const., Amend. I

fee ee ee ee ee oe ee en ae ee, Sa Pen F Ps ee Pee

U.S. Const., Amend. IV

> . > > >. * > . > bl > . a - oo * > > . 23

Statutes

3. U.8.0; @ Ste os oa ee ee

oS: D0. P20 a ee

ee Ds Tes 4 ao eee Re eee 9, 12

ee Ue OR ae gy ge Gee 8

(Ae ee ee ee a

i

Rules

United States Supreme Court

ee ae ee eee ee oe eee ee

United States Supreme Court

Rule 10(c) ke es eee 8 tb a eae eee

ORs Geleks BE se ea eS eS Se Bee or ae

Other Authority

9A Charles A. Wright & Arthur R.

Miller, Federal Practice and

Procedure, § 2558, at 468, n.14

(1994) pe ipa TURE eye ag egg ae ger ae gag ag

- Vii -

I. REPORTED OPINIONS

The Ninth Circuit Court of Appeals

opinion in this case is published at

Gulliford v. Pierce County, 136 F.3d 1345

(9th Cir. 1998).

II. JURISDICTION

The opinion of a divided Ninth Cir-

cuit Court of Appeals was entered on Feb-

ruary 27, 1998. App. “A.” Rehearing was

denied in another split decision on April

9, 1998. App. “B.” This Court now has

jurisdiction under 28 USC § 1254(1).

III. CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

A. U.S. Constitutional Amendment I

(See Appendix “Cc” for text.)

B. U.S. Constitutional Amendment IV

(See Appendix “Cc” for text.)

Cc. 42 U.S.C. § 1983

(See Appendix “Cc” for text.)

IV. STATEMENT OF THE CASE

Herron Island is located in Puget

Sound, just within the boundaries of Pierce

County, Washington. Because the island is

es

a :

isolated and privately owned, a minority of

its residents oppose the presence of law

enforcement and oppose their neighbors who

want more frequent police patrols. Ex. 12

at 3; CR 164 at RT 5, 37-41, 48, 118-19,

123, 247-48, 307-06, 601.° In the past

this group's disturbing the peace and

threatening others had fostered many calls

to and visits by the Pierce County Sher-

iff's Department (hereinafter "PCSD"). CR

164 at RT 43-47, 61, 306-07, 371, 377-83.

However when the group's’~= misconduct

escalated dangerously in the summer of

' Herein Clerks Papers are referred to

as "CR" followed by the applicable doc-

ument number from the District Court

Docket Sheet, Jury Instructions are re-

ferred to as "CR 146" -- the applicable

document number -- followed by "Inst."

and the pertinent instruction number,

exhibits are referred to as "Ex." fol-

lowed by the number given it in the Dis-

trict Court, and the reporter's tran-

script is referred to as "CR 164" -- the

applicable document number -- followed

by "RT" and the pertinent page number.

re

1992,° PCSD initiated a policy against any

‘unit traveling to Herron Island alone after

dark and even then there were always un-

resolved safety concerns. [qd at 121, 126,

376-77, 669, 741-42, 744-45.

On the evening of September 6, 1992 --

Labor Day weekend -- PCSD received a hys-

terical telephone report by the wife of a

Heron Island resident earlier threatened by

the group in question that her family just

had been threatened again by a member of a

2 On July 4th, a large hostile drunken

crowd on the island's beach refused to

extinguish a fire and by sheer weight of

numbers forced a fire official and a

PCSD deputy to retreat without enforcing

the law. CR 164 at RT 47-48, 121-22,

266-69, 634-35, 743-44. On August 14,

PCSD again responded when an island

resident was threatened with a knife by

a member of a loud party on the beach.

Id at 51, 522-28, 661-65. The next day,

on August 15, PCSD again was dispatched

when many of the same persons involved

in the July 4th incident retaliated

against the victim of the knife threat

by blaring radios at his home, yelling

for him to move and shinning a spotlight

into his windows. Id at RT 57-58, 123-

24, 202-05, 308-10, 607-09, 638-39, 665-

71, 745-50; Ex. 12 at 3.

a

drunken party at the beach. Id at RT 438-

44, 530-33, 643-44, 673-75; Ex. 13 at 1.

However the only available Deputies --

Thrash, Larson and Donnelly -- were not

dispatched until PCSD learned from the fire

district that "J.D." -- a member of this

party -- had now threatened fire fighters

who had attempted to extinguish an illegal

fire. CR 164 at RT a0-11, 65, 1293 Bx. ii;

Ex. 13 at 2; Ex. A-29.

Upon arriving on the island, Deputy

Thrash learned from a family on the beach

that no one had left the group Since the

firemen had departed. CR 164 at RT 136,

759-60; Ex. 12 at 4. Approaching next the

drunken group, which outnumbered the offi-

cers approximately four or five to one and

which was made up of many of the same per-

sons as those at previous calls, CR 164 at

RT 34, 44, 58-60, 69, 136, 139-40, 273,

646, 676, 762; Ex. 12 at 4, Deputy Thrash

repeatedly ordered those around the illegal

ee

Daina it dhe eral

fire to leave. CR 164 at RT 27-28, 138,

286-88, 620, 647-48, 677-78, 759-60; Ex. 12

at 4; Ex. 14 at 2. When no one obeyed, Dep-

uty Thrash called for J.D. to make himself

known but was falsely told by members of

the crowd that J.D. had left long ago. CR

164 at RT 28, 72-75, 289-93, 316-17, 547,

622-233; Ex. 10; Ex. i2 at 43; Ex. i3 at 2.

Knowing no one had left before his ar-

rival, Deputy Thrash more forcefully told

the drunken crowd he was "tired of this

shit" and that the “party is over” but again

frighteningly no one -- including plaintiff

Herbert Gulliford -- obeyed. “‘R 164 at RT

28, 138, 140, 318-319, 764-766; Ex. 10; Ex.

32: at j6: Se. 23 at 28k Instead they

became increasingly "rebellious," a woman

began to argue and Gulliford from the back

of the crowd -- with the admitted intent of

preventing J.D.'s arrest -- interrupted by

yelling profanities and telling’ the

deputies to "hop on the ferry -- go back."

ane

CR 164 at RT a3, #6, 1397; 141-44, 294-95,

321-25, 506-08, 515-19, 624-25, 766-68,

822-23; Ex. 10; Ex. 12 at 3g: Bx. 323 at

id.; Ex. 14 at id.

Having no available back up,° Deputy

Thrash in response to plaintiff's physical

and now verbal refusal to obey a lawful or-

der could 1) do nothing and let plaintiff's

call incite the crowd to physically force

the deputies off the island as it had be-

fore, 2) “hop” back on the ferry as he was

told and abandon his duty to disperse the

crowd, to arrest a felon and to assist

firemen extinguishing the fire, or 3) ar-

rest Gulliford for failing to disperse and

obstructing so that the investigation could

continue. CR 164 at RT 768, 770. Deputy

Thrash chose to arrest plaintiff.

> Reinforcement was unavailable be-

cause the island was isolated, personnel

limited and broadcasts to the dispatcher

difficult to send. cR 164 at 119-20,

122, 125-28, 533-37, 744-45; Ex. A-22.

ae Th

Gulliford however ducked away and in-

tentionally fell to a sitting position

amidst his increasingly agitated friends,

resisted being handcuffed for _ several

minutes -- during which time he asked the

hostile circling crowd for assistance --

but finally was overpowered and taken into

custody. CR 164 at RT 79-81, 86, 114-15,

148-50, 161-62, 166, 218-19, 221, 303, 335-

36, 338, 340-41, 408, 549-50, 553-54, 561,

569, 593-94, 596, 651, 695-702, 707-09,

717, 737, 778-80, 783-84, 786-88, 793, 801,

810-11, 815, 825; Ex. A-31.

Plaintiff thereafter filed suit under

42 USC § 1983 for unlawful arrest and ex-

cessive force but -- after a three week

trial -- the jury returned a defense ver-

dict on all issues. Gulliford v. Pierce

County, 136 F.3d 1345, 1347 (9th Cir.

1998). Plaintiff then appealed to the

Ninth Circuit Court of Appeals which unani-

mously affirmed the defense verdict on ex-

oD

cessive force but in a split decision re-

versed the jury's verdict in favor of Dep-

uty Thrash on unlawful arrest and remanded

that issue for retrial. id. Deputy Thrash

now seeks a writ of certiorari.

V. ARGUMENT

1. THE FIRST AMENDMENT DOES NOT MAKE

A_SEIZURE ILLEGAL IF THERE IS

PROBABLE CAUSE TO ARREST FOR

PHYSICAL AcTs.

The evidence before the jury esta-

blished Gulliford was arrested because he

purposefully attempted -- by words and

deeds -- to impede officers' attempts to

perform their duties under tense and

threatening circumstances. Before plain-

tiff said a word he had violated RCW 9A.84

-020 by failing to disperse when ordered to

do so while congregating with a group of

three or more and there had been acts of

conduct within that group which created a

Substantial risk of causing injury to any

person, or substantial harm to property.

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PI AEGIS Vlei i RARE Ss Slat

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PER BAS AARP

CR 164 at RT 27-28, 138, 286-88, 316-19,

620, 647-48, 677-78, 759-60; Exs. 12-14.

Plaintiff also thereafter "hindered, de-

layed or obstructed" the deputies under RCW

9A.76.020 because -- when Gulliford chose

to remain and call out to the deputies --

the officers were attempting to disperse

the crowd and arrest a suspect in a serious

felony yet were being lied to by the crowd

as it harbored the felon as well as being

opposed by that crowd which had a known

history of threatening behavior toward cit-

izens and officials. Exs. 12-14.

Nevertheless, the jury's verdict in

favor of Deputy Thrash on the claim of un-

lawful arrest was reversed and remanded for

retrial because the Ninth Circuit held the

jury should be instructed only “that under

the First Amendment an individual cannot be

arrested for mere speech unless the speech

constitutes ~fighting words'” and that “all

that Gulliford did” was speak. Gulliford

a” es

v. Pierce County, 136 F.3d 1345, 1350 (9th

Cir. 1998).* This published ruling -- mak-

ing ieime) —_ ; ;

irrelevant to probable cause -- decides an

important federal question vital to law en-

forcement that conflicts with decisions of

both this Court and of the State of Wash-

ington. Supreme Court Rule 10(a) & 10(c).

Though Gulliford's words certainly had

* The trial court's instruction ex-

plained the “First Amendment protects the

right of citizens to verbally oppose and

fer challenge police action without

risking arrest....” CR 146, Inst. 15

(emphasis added). It thereby expressly

distinguished “verbal opposition” from

other “challenges” which are not “verbal

opposition” but which may still be pro-

tected. The instruction then stated a

person can be lawfully arrested if “that

challenge” -- but not the previously dis-

tinguished “verbal opposition” -- takes

the form of obstructing an officer. [I[d.

Hence under the express terms of the in-

struction “verbal opposition” is abso-

and cannot be a basis

for probable cause. Though this ignored

that even words alone can constitute

probable cause, 136 F.3d at 1350, such

was only to plaintiff's benefit by de-

priving Deputy Thrash of this additional

ground for upholding the arrest.

-%6.

the potential to incite the mob,” case law

makes clear speech can be a consideration

for probable cause even where it does not

constitute “fighting words” if it accompan-

ies criminal conduct. In Houston v. Hill,

482 U.S. 451, 462 n. 11, 96 L. Ed.2d 398,

107 S.Ct. 2502 (1987), this Court indicated

that "a municipality constitutionally may

punish an individual who chooses to stand

near a police officer and persistently at-

tempt[s}) to engage the officer in conversa-

tion while the officer is directing traf-

fic" or who "run[s] beside [an officer pur-

suing a felon] in a public street shouting

* See e.g. United States v. Hoff, 22

F.3d 222, 224 (9th Cir. 1994) (Where --

among other things -- an officer was

"outnumbered, exposed, isolated and con-

fronted by a previously and increasingly

uncooperative individual," that indivi-

dual's refusal to leave a campsite and

inducement of a dog tethered to a tree

to growl at the officer was "[mjore akin

to the cocking of a trigger than to pri-

vileged speech" and like "the incitement

of a mob to riot ..., thus fails to

reach the constitutional threshold.")

ee

at the officer." Similarly, Washington

cases have held -- where the scene also was

noisy and confused and a crowd angry --

that the First Amendment is not implicated

when an individual's attempts to talk to

officers about the arrest of another member

of the party after being told to leave was

conduct that hindered, delayed and obstruc-

ted the officers and interfered with the

discharge of their duties in violation of

RCW 9A.76.020. See State v. Lalonde, 35

Wn.App. 54, 61-62, 655 P.2d 421 (1983).

Indeed, where a plaintiff was arrested be-

cause he consistently refused to comply

with official directions and instead asked

"why" he was being so directed, even the

Ninth Circuit rejected a First Amendment

challenge because incidental restrictions

on freedom of speech are not invalid if the

prohibited conduct contains both speech and

non-speech elements and the law regulates

the non-speech conduct. United States y.

ee

Brice, 926 F.2d 925, 931 (9th Cir 1991).

See also Cox vy. Louisiana, 379 U.S. 536,

555, 13 L.d.2d 471, 85 &8.Cct. 453 (1965)

citing Giboney v. Empire Storage & Ice Co.,

336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed.

834 (1949)("it has never been deemed an

abridgement of freedom of speech ... to

make a course of conduct illegal merely be-

cause the conduct was in part initiated,

evidenced, or carried out by means of lang-

uage, either spoken, written, or print-

ed."); Mozzochi v. Borden, 959 F.2d 1174,

1179-80 (2nd Cir. 1992)(claim of retalia-

tion for exercising free speech rejected

where there was probable cause to believe

a threat had been made); United States vy.

Gilbert, 813 F.2d 1523, 1529 (9th Cir.),

cert. denied 493 U.S. 1082 (1987) (illegal

conduct "is not protected by the First

Amendment merely because the conduct was in

part carried out by language in contrast to

direct action."); Armes _v. Philadelphia,

o 13-

706 F. Supp. 1156, 1163 (E.D. PA 1989) (to

succeed on a claim he was arrested for

exercising free speech, plaintiff "must

show [he] was arrested without probable

cause.)

The Ninth Circuit's published decision

here not only questions the enforceability

of obstruction statutes in general but

throws into confusion an officer's ability

to arrest a suspect who is astute enough to

accompany his illegal acts with verbal op-

position to the arresting authority. Such

harmful precedent has far reaching implica-

tions for both law enforcement and future

Claims under 42 U.S.C. § 1983.

2. CLEARLY ESTABLISHED STATE PRECE-

DENT REOUITRES QUALIFIED IMMUNITY

Qualified immunity exists where an of-

ficer's actions do not "violate clearly es-

tablished statutory or constitutional

rights of which a reasonable person would

have known." Harlow v. Fitzgerald, 457

fe)

U.S. 800, 818, 73 L.Ed.2d 396, 102 S. Ct.

2727 (1982). See also Anderson v. Creigh=-

ton, 483 U.S. 635, 641, 97 L.EG.2d 523, 107

S.Ct. 3034 (1987). This defense exists

because:

We have recognized that it

is inevitable that law en-

forcement officials will in

some cases reasonably but

_ mistakenly conclude that

probable cause is present,

and we have indicated that

in such cases those offi-

cials--like other officials

who act in ways they rea-

sonably believe to be law-

ful--should not be held

personally liable.

Anderson, 483 U.S. at 641. To overcome

this immunity a plaintiff must do more

“than identify a clearly established legal

test and then allege that the defendant has

violated it” but “must demonstrate a sub-

stantial correspondence between the conduct

in question and prior law allegedly esta-

blishing that the defendant's actions were

clearly prohibited.” Hannula v. City of

Lakewood, 907 F.2d 129, 131 (10th Cir.

ee

1990) (emphasis added).

As previously noted, the majority on

the Ninth Circuit panel held Gulliford's

non-verbal actions before and during his

accompanying verbal outburst were constitu-

tionally irrelevant and that once plaintiff

spoke Deputy Thrash could only have proba-

ble cause if plaintiff used “fighting

words.” In its summary analysis of guali-

fied immunity,® the majority did not ad-

dress the “prior law” of this Court in Hous-

° The majority also opined Deputy

Thrash had waived his right to assert

qualified immunity because he “neglects

to explain why it did not cross appeal

on this issue from the district court's

denial of its motion seeking qualified

immunity” and that an “appellee who fails

to file a cross-appeal cannot attack a

judgment with a view toward enlarging

its own rights.” 136 F.3d at 1351. How-

ever, Deputy Thrash prevailed on all

issues below so that his reassertion of

qualified immunity on appeal was not

made “with a view toward enlarging [his]

own rights” but in light of the rule that

a jury's verdict will be affirmed on any

ground supported by the record. See

United State v. Washington, 969 F.2d

752, 755 (9th Cir. 1992), cert. denied,

113 S. Ct. 1945 (1993).

Ye

SABRI VES ic Et eee ha or Wapiti.

ze PT re ee Yeas =

en

ahi AR tase st sin th ca De

ton v. Hill, 482 U.S. at 462 n. 11, or even

its own precedent of United States vv.

Brice, 926 F.2d at 931, discussed and cited

above, which demonstrate no reasonable of-

ficer would have believed it violated the

constitution to make an arrest when a sus-

pect's illegal physical act is accompanied

by verbal opposition to police. In so do-

ing, the Ninth Circuit majority committed

the same error this Court identified in

Anderson vy. Creighton, 483 U.S. at 640-41:

The Court of Appeals' brief

discussion of qualified im-

munity consisted of little

more than an assertion that

a general right [defendant]

was alleged to have violated

... Was Clearly established.

The Court of Appeals speci-

fically refused to consider

the argument that it was not

clearly established that the

; ) it) hic]

did not constitute probable

cause ....

(Emphasis added). Under the federal prece-

dent cited but ignored by the Ninth Circuit

majority, Deputy Thrash had every reason to

i.

believe plaintiff's “conduct in question”

under the tense and threatening circum-

stances would be held to constitute a fail-

ure to disperse and to create a "clear and

present danger" of preventing the deputies

from dispersing the crowd and arresting a

felon -- i.e. "a substantive evil" far

greater than Hill's hypothetical impeding

traffic and similar to its example of an

appropriate obstructing arrest.

More immediately, Deputy Thrash's own

state's decision in State v. Lalonde, 35

Wn.App. at 61-62, had been decided under

Similar facts as those here and would have

led any reasonable Washington policeman to

believe plaintiff's conduct of remaining

and communicating both his intent to remain

as well as his intent the deputies instead

should leave, were “acts which accompanied

his words." Hence any Washington policeman

would believe Gulliford constitutionally

could be arrested for failing to disperse

-18-

PAE La ee BD Ss DE GAPE ited Sen

MEE 0 DOR ne elians GE ce i RA ot Nea Rabies

and attempting to obstruct their efforts to

disperse the crowd and arrest a felon.

However the majority refused even to dis-

cuss the Washington precedent cited it,

presumably because the Ninth Circuit only

considers state law “in the absence of

binding precedent.” See Malik v. Brown, 71

F.3d 724, 727 (9th Cir. 1995); Capoeman v.

Reed, 754 F.2d 1512, 1514 (9th Cir. 1985).

Such ignores that Washington precedent

is “binding” on Deputy Thrash and that under

such an analysis the same action brought in

state court would ignore circuit court pre-

cedent and inconsistently consider only

what law was “clearly established” by state

court decisions. See ASARCO Inc. v. Ka-

dish, 490 U.S. 605, 617, 109 S.Ct. 2037,

104 L.Ed.2d 696 (1989) (state courts “pos-

sess the authority ... to render binding

judicial decisions that rest on their own

interpretations of federal law"); Lockhart

v. Fretwell, 506 U.S. 364, 375-76, 113 S.

- 19-

Ct. 838, 122 L.Ed.2da 180 (1993) (THOMAS, J.,

concurring) (“neither federal supremacy nor

any other principle of federal law requires

that a state court's interpretation of fed-

eral law give way to a (lower) federal

court's interpretation.”) See also Arizon-

official Englis) bord ae

U.S. _, 14137 L.84.24 170, 137 S.Ct. 1055,

1076 n. 11 (1997) (Ninth Circuit's belief

state courts are not "coordinate and co-

equal with the lower federal courts on mat-

ters of federal law" deemed “remarkable.”)

If state precedent interpreting federal law

is not considered in deciding what is

“clearly established” -- regardless of which

court a plaintiff chooses to decide his

Claim -- forum shopping will decide

outcomes and qualified immunity will become

meaningless because state officials then

cannot “reasonably anticipate when their

conduct may give rise to liability for dam-

ages...." C.f. Davis v. Sherer, 468 U.S.

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183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139

(1984).

Though this Court has held a “court

engaging in review of a qualified immunity

judgment should therefore use its “full

knowledge of its own [and other relevant]

precedents,'" Elder v. Holloway, 510 U.S.

S$i0, $126, 114 68.Ct. 10139, 127 L.5da.2¢

344(1994) quoting Davis v. Sherer, 468 U.S.

at 192 n. 9(emphasis added), it has never

specifically addressed the role state court

precedent on federal questions has in anal-

yzing whether a right is “clearly esta-

blished” for purposes of qualified imnun-

ity. C.f. Harlow v. Fitzgerald, 457 U.S.

at 819 (“we need not define here the cir-

cumstances under which “the state of the

law' should be “evaluated by reference to

the opinions of this Court, of the Courts

of Appeals, or of the local District

Court."). But see O'Connor vy. Donaldson,

422 U.S. 563, 577, 95 S.Ct. 2486, 45 L.Ed.

oe

2a 396 (1975) (circuit court reversed

because it “did not consider ... [{defend-

ant's) claimed reliance on state law” for

purposes of qualified immunity). Though a

federal appellate court has the ability to

reconsider its precedent and interpret that

of this Court, in analyzing qualified in-

munity it cannot ignore state precedent

concerning federal questions which far more

meaningfully and immediately govern a state

official's conduct.

Because it has not been decided, but

should be, what case law determines whether

a right is “clearly established,” certiorari

should be granted to determine if a state

officer is liable where he relies on his

state's decisional law on federal constitu-

tional rights. Sup. Ct. R. 10(c).

As noted by the dissent, plaintiff at

trial objected only to the absence of a se-

~ Rs

LORS SR ew Terie Der tt ne MOE et ene Ona te eo

parate First Amendment claim and not -- as

he later asserted on appeal -- that the

court's instruction failed to state the

First Amendment prevents verbal opposition

from constituting probable cause under the

Fourth Amendment. 136 F.3G at 1352-53

(O'Scannlain, dissenting); CR 167 at RT 3-

4. Because a party may not object to an

instruction on one ground at trial and rely

on a different ground on appeal, Coastal

Distributing Co v. NGK Spark Plug Co., 779

F.2d 1033, 1039 (5th Cir. 1986); Siegfried

v. Kansas City Star Co., 298 F.2d 1, 7 (8th

Cir. 1962), the issue was not properly be-

fore the Ninth Circuit. Fed.R.Civ.P. 51.

Though the majority opinion acknow-

ledged “the precise articulation of Gulli-

ford's First Amendment argument was not as

artfully presented in his oral objection’

to the District Court's instruction “as it

was in his alternative jury instruction,”

136 F.3d at 1349 n. 5, it concluded his

+. oO

failure to properly object nevertheless

comes within the “limited [useless formal-

ity] exception” to Civil Rule 51 where “(1)

throughout the trial the party argued the

disputed matter with the court, (2) it is

clear from the record that the court knew

the party's grounds for disagreement with

the instruction, and (3) the party offered

an alternative instruction.” Id at 1620;

Glover _v. BIC Corp, 6 F.3d 1318, 1326 (9th

Cir. 1993); United States v. Payne, 944

F.2d 1458, 1464 (9th Cir. 1991), cert, de-

nied, 503 U.S. 975 (1992).

But, as the dissent observed, “apart

from noting that Gulliford submitted an

alternative instruction ..., the majority

does not point to anything in the trial

record to support its conclusion that the

pointless formality exception to Rule 51

-

applies here.” 136 F.3d at 1353. The Ninth

” As to whether “throughout the trial

the party argued the disputed matter

oe

Circuit previously held, and the Seventh

still holds, the filing of an alternative

instruction is not enough to comply with

Rule 51 and preserve an issue for appeal.

See Hebron v. Touhy, 18 F.3d 421, 424 (7th

Cir. 1994); Gosvenor Properties Ltd v.

Southmark Corp., 896 F.2d 1149, 1152-53

(9th Cir. 1990); Benigni v. Hemet, 879 F.2d

473, 475-76 (9th Cir. 1988).

More bothersome, plaintiff's state-

ments to the trial court led it to affirma-

tively believe he had no objection to the

language actually used in the instruction.

with the court,” the majority refers only

to “additional discussions [that] oc-

curred off the record in chambers,” 136

F.3d 1349, but nothing indicates those

off the record discussions included the

issue raised on appeal. Rather, until

now “remarks made by counsel in chambers

... and mere submission of proposed in-

structions did not clearly show that the

issue was focused before the court.”

Gosvenor, id. As to the second require-

ment it be “clear from the record that

the court knew the party's grounds for

disagreement with the instruction,” the

record, as shown below, proves the op-

posite.

aes

The entirety of plaintiff's assertions at

trial regarding the instruction was that it

“does not include a claim for a specific

First Amendment violation ....” CR 162 at

RT 2-3 (emphasis added). The trial court

responded that though the “First Amendment

is implicated,” it “is my judgment that that

is not a separate claim.” Jd. (emphasis

added). After being told the trial court

understood his objection only to be that he

sought an additional “separate claim,”

plaintiff made no further comment on that

instruction nor took exception to the re-

jection of his proposed alternative despite

a specific request he do so. Id; CR 167 at

RT 10. Thus plaintiff's comments misled

the trial court into believing he had no

objection to the language actually used in

the court's instruction.

The division between the circuits on

whether Rule 51 grants appellate courts

such discretion to reach instructional

« 26 -

issues never before raised at trial, see 9A

Charles A. Wright & Arthur R. Miller, Fed-

eral Practice and Procedure § 2558, at 468

n. 14 (1994), a ~1e warrants certiorari.

Supreme Court Rule 10(a).

VI. CONCLUSION

For the above reasons it respectfully

is requested this Court grant certiorari.

JOHN W. LADENBURG

Prosecuting Attorney

DANIEL R. HAMILTON

Deputy Prosecuting Attorney

Attorneys for DEFENDANT THRASH

PH: (253) 798-7746/WSBA #146°8