# Petition for Writ of Certiorari — Thrash v. Gulliford

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1169%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 828

## Text

, 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

es

—_— ee

Ne ee ee ee Oe ee ee ey ee a nee

wer ee

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.

. ©

Sa Aiba s tba 0 Seach Rass

PI AEGIS Vlei i RARE Ss Slat

aa cemaenencheathe tence hae tek ke en ae

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.

«a

ene aiReit she toh While eae page:

SC teain ete Dak Leen, Caled Pata AL Shears i yrs SSI Ni aS ie he SS

ee een ee me Sar een ee con eg tes e 5 rs

Abn NIE cet arclt TaN STi Reon

vee

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1169%3A1. Public record. Not legal advice.