Opposition Brief — Thrash v. Gulliford

Supreme Court, U.S.

FILED

| JUL 24 1998

No. 97-2082 OFFICE OF IHE CLERK

——

In The

Supreme Court of the United States

October Term, 1997

é —_

DEPUTY PAUL THRASH,

Petitioner,

H=RBERT GULLIFORD,

> .

Resp ndent.

——___-—_—-- ¢ —_ --—_-----—

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

ge

DIANA LYNN Kiesei* Jor A, FELDMAN

424 Broadway 14706 Union Avenue S.W.

Tacoma, WA 9840? Lakewood, WA 98498

253.274.1196 253.582.6109

Counsel for Respondent

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-696 +

OR CALL COLLECT (402) 342-2831

oi ES RON ARM SPARC atc k CATS ahd

TABLE OF CONTENTS

Page

PRERE Se EOD BOON EE wig 65 cn wos ko wees 1

PUROERASE QUO SPCR SUNN 65 so hiaen bc isa keas onan 2

REASONS FOR DENYING WRIT .................. 5

I. WHETHER PROTECTED SPEECH SHIELDS

PHYSICAL CRIMINAL ACTS NEED NOT BE

Doesciees ON ZEEE BRAT TGR 60k so oss necks nun 5

A. The Issue Of Whether Protected Speech

Shields Otherwise Unlawful Physical Acts

Has Repeatedly Been Decided ............

vi

B. As No Physical Acts Occurred In This Mat-

ter, The Issue Is Irrelevant................ 6

Il. QUALIFIED IMMUNITY IS NOT AT ISSUE IN

EEMED, COIAT Rm Wao oN tNES beneS Edad Nowa eee as 7

A. Qualified Immunity Is Not Properly Before

ee Se Ren re reer eae roe aie 7

B. Qualified Immunity Does Not Protect Offi-

cers From Behavior Which Is Clearly Estab-

lished To Be Unconstitutional ............. 9

Il. AN EXAMINATION OF COURT OF APPEALS

DISCRETION REGARDING INSTRUCTIONAL

ISSUES IS IRRELEVANT IN THIS CASE ...... 12

A. Because This Issue Was Repeatedly Raised

Before The Trial Court, Petitioner’s Ques-

tion Regarding Issues Which Were “Never

Raised” is Inappropriate. ........6....6665 12

8. The Ninth Circuit Is Already The Most Strict

Circuit In Interpreting Fed.R.Civ.P. 51..... 17

Ade aA a'o WE Vr oka Ee los cae aatoane 19

i ei

il

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 10

Brown v. Avemco Inv. Corp., 603 F.2d 1367 (9th Cir.

SF Oise ovr is tk cee ee ink ee eee Re 17

City of Houston, Texas v. Hill, 482 U.S. 451 (1987)

Pr eer en Sherer ra ro RRR Ne Ls oe 6, 9, 10, 11

Cox v. Louisiana; S79: 1S, oe Cee ss i eas besuees 5

Duran v. City of Douglas, 904 F.2d 1372 (9th Cir.

SOD occa 0 ols Sone ee eee eee ea er ees )

Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993)...... 17

Grosvenor Properties Ltd. v. Southmark Corp., 896

F.2d: 2349 -(9eR Coe Bi cree ae ie 17

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

eg) ER eer ore wwe Py eam a passim

Hammer v. Gross, 932 F.2d 842 (9th Cir. 1991)........ 17

Housing Auth. v. Ponca City, 952 F.2d 1183 (10th

Cie: BE) ok a oe eee ee ee ee ee ces 8

Lewis v. City of New Orleans, 415 U.S. 130 (1974) ..... Y

Mackinney v. Nielsen, 69 F.3d 1002 (9th Cir. 1995) ..... 9

McGonigle v. Combs, 968 F.2d 810 (9th Cir.), cert.

dismissed, S06. 1335. 948 C1950 6 Ss cee eo het ten 17

Spurlock v. F.B.I., 69 F.3d 1010 (9th Cir. 1995)......... 8

State v. Kirvin, 37 Wn.App. 452, 682 P.2d 919 (1984) .... 13

State v. Lalonde, 35 Wn.App. 54, 665 P.2d 421 (1983)

skp kA Lh wERY RRA Y Eee Sa ee Cee 9, 10, 11, 12

State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982)..... 1

Terminiello v. Chicago, 337 U.S. 1 (1949)............... 9

ill

TABLE OF AUTHORITIES - Continued

Page

Texas Commerce Bank Nat. Ass’n. v. National Royalty

CO. gse wate boos (5th. Cir. 1986) 6 conc cnscccn ss 8

Turpen v. City of Corvallis, 26 F.3d 978 (9th Cir.),

ene Meee eR Se OD, CEOS ook bx kins cas bo ¥ a ns 8

ion ©. wtme, sa0 va Seo (9th Cir, 1991). .....6.6... 11

U.S. v. Gilbert, 813 F.2d 1523 (9th Cir. 1987).......... 5

United Siates v. Payne, 944 F.2d 1458 (9th Cir. 1991),

oe EE eh > 4 er rr 17

Wisconsin v. Mitchell, 508 U.S. 476 (1993)............. 5

CONSTITUTIONAL PROVISIONS

Seer MONE AIOE, Bo civics ds wn cunvascuesenreas passim

ee NS Bes Oh kc kaa c eae avekenaes 17

STATUTE

Revised Code of Washington § 9A.76.020........ passim

RuLes

NEA So Unk oy tC cwn sek ho A sae n nds y o89 oe x 17, 18

RE EE EPA a sy b bas cans ev as eneesats 19

Boe» i> EO ea ae re aera e 19

OTHER AUTHORITY

9A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure, § 2558 at 468, n. 14 (1994) .... 17

BRIEF IN OPPOSITION

The Respondent, Herbert Gulliford, opposes the peti-

tion of Deputy Paul Thrash for a writ of certiorari to the

United States Court of Appeals for the Ninth Circuit.

¢

STATUTES INVOLVED

It should be noted that the text of the Revised Code

of Washington § 9A.76.020 (hereinafter RCW 9A.76.020),

as provided to this Court by the Petitioner, is incorrect.

(Pet. App. C. IV.) Petitioner cites the 1995 version of the

statute, which is substantially different from the 1975

version in place at the time of this incident in 1992:

“9A.76.020 Obstructing a public servant. Every

person who, (1) without lawful excuse shall

refuse or knowingly fail to make or furnish any

statement, report, or information lawfully

required by him by a public servant, or (2) in

any such statement or report shall make any

knowingly untrue statement to a public servant,

or (3) shall knowingly hinder, delay, or obstruct

any public servant in the discharge of his official

powers or duties; shall be guilty of a misde-

meanor.” (1975 Ist ex.s. c 260 § 9A.76.020)!

¢

1 Sections 1 and 2 of the statute had been found to be

unconstitutional by the Washington State Supreme Court in

State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), ten years before

Mr. Gulliford was arrested. Mr. Gulliford was arrested for

violation of Section 3 of the statute.

STATEMENT OF THE CASE

Petitioner Thrash has attempted to re-write the facts

of this case, using more than six pages to do so. Because

Petitioner’s Questions 1 and 2, as posed to this Court, are

based upon his misrepresentations of these facts, it is

necessary to review what actually happened on Herron

Island.

Deputy Thrash, as he tried to do at the appellate

level, attempts to disparage Mr. Gulliford by citing a

plethora of incidents which occurred weeks or months

before the incident in question, involving other people

when Mr. Gulliford was not present, and frequently, inci-

dents which occurred when Mr. Gulliford was not even in

the State of Washington. The accuracy of the representa-

tions of these incidents will not be debated, as they are

irrelevant to the instant case.

Petitioner continues to insist that Mr. Gulliford

“failfed] to disperse.” (Pet. 5.)

Deputy Thrash completely neglects to mention that

the entire episode was recorded on videotape with sound

recording.” (Ex. 10.) In reaching their decision, the Court

of Appeals had access to Exhibit 10, and viewed it before

hearing oral arguments in the case“

Ex. 10 shows that the first order to disperse was

issued after Mr. Gulliford was already on the ground,

pulled down from behind by Deputy Thrash. Deputy

* The videographer, Curt Bray, an island teenager and

Eagle Scout, was also arrested for Obstructing A Public Servant

that night, but was also never charged with a crime. (Exs. 10 and

12.)

Terrill Larson yelled, “Disperse, disperse, that’s once,

you've been warned.” Mr. Gulliford was already under

arrest at that time, face down in the beach sand with

Deputy Thrash on top of him, kneeing him in the neck.

(Ex. 1€.)

Thrash further neglects to mention that Mr. Gulliford

had no part in the events earlier on the day in question.

There are no allegations in any of the evidence that Mr.

Gulliford did anything other than to arrive at the commu-

nity beach shortly before the deputies did.

The deputies were looking for a man named J.D.

After arresting (and apparently un-arresting) a Mr.

Petersen — the wrong person, Deputy Thrash addressed

the crowd, cursing at them and telling a woman who

spoke to “Shut up, just shut up!” (Ex. 10.)

As Deputy Thrash lectured this group of mostly middle-

aged people, and in response to Thrash’s statement, “This

is a waste of government... ,”, Gulliford responded in a

conversational tone, “Then why don’t you hop on the

ferry, hop on the ferry and go back.” (Ex. 10. See also

Gulliford v. Pierce County, 136 F.3d 1345 (9th Cir. 1998) at

page 1347.)

In the words of Deputy Patrick Donnelly, “U 147

[Thrash] walked around the fire and grabbed Mr. Gul-

liford from behind and pulled him over backwards.” (Ex.

13.)

Each of the deputies agree that Mr. Gulliford never

moved, opened his mouth to express his opinion in a

single sentence, and was immediately arrested. (Exs. 10,

12, 13 and 14. An accurate summary of the pertinent parts

of the police reports can be found in Gulliford v. Pierce

County, 136 F.3d 1345 (9th Cir. 1998) at n. 7.)

Petitioner refers to the “rebellious” (Pet. 5),

“drunken” (Pet. 4), “agitated” (Pet. 7), “disturbing the

peace” (Pet. 2), “threatening” (Pet. 2), “large” (Pet. 3, n.

2), “hostile” (Pet. 3, n. 2), crowd.

Ex. 10 shows a group of approximately fifteen peo-

ple, some as old as 70, none of whom was armed, none of

whom made a physical move toward the deputies, and

none of whom was threatening the officers.

In actual fact, the most threatening behavior pre-

sented that night occurred when the officers were physi-

cally beating Mr. Gulliford, and this crowd of mostly

middle-aged people shouted promises to call their respec-

tive .awyers in the-morning. (Ex. 10.) Perhaps a frighten-

ing thought, but certainly not a crime.

Petitioner states that there were only three “available

Deputies” (Pet. 4) to respond to the call, and that the

officers were outnumbered “four or five to one[.]” In

addition to the three Pierce County Sheriff’s Deputies, a

Washington State Patrol Trooper and three members of

Pierce County Fire District #16 were also at the scene.

Two more firefighters were standing by the fire engine,

one-half block away.

Thrash specifically states (Pet. 5) that Mr. Gulliford

had an “admitted intent of preventing J.D.’s arrest[.]”

Nothing in the record reflects that Mr. Gulliford wished or

intended or attempted, in any way, to prevent J.D.’s arrest.

The citations listed by Thrash to support this accusation

are devoid of evidence that the assertion is true.

—

In fact, J.D. was never arrested (that night or at a

later date), neither Mr. Gulliford nor videographer Bray

was ever charged with a crime, much less convicted of

one, and even the beachfire which seemed to be of such

concern was allowed to burn itself out the next day. (Exs.

16b, 16c and 16d.)

REASONS FOR DENYING THE WRIT

I.

WHETHER PROTECTED SPEECH SHIELDS

PHYSICAL CRIMINAL ACTS NEED NOT BE

DECIDED IN THIS MATTER

A. The Issue Of Whether Protected Speech Shields

Otherwise Unlawful Physical Acts Has Repeatedly

Been Decided

Petitioner asks whether speech, if it i: uttered after a

suspect physically commits a crime, shields the speaker

from arrest.

As the long history of established case law demon-

strates, this question has already been decided over and

over again. (E.g., Wisconsin v. Mitchell, 508 U.S. 476 (1993);

U.S. v. Brice, 926 F.2d 925, 931 (9th Cir. 1991); U.S. v.

Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987); Cox v. Louisi-

ana, 379 U.S. 536 (1965.)) Speech does not shield physical

crimes.

6

B. As No Physical Acts Occurred In This Matter, The

Issue Is Irrelevant

Mr. Gulliford never performed any physical acts,

much less a physical act which constituted a crime.

“Here, the jury more probably than not found

that Deputy Thrash had probable cause to arrest

Gulliford based on his words alone because that

is all Gulliford did - he spoke.” Gulliford v.

Pierce County, 136 F.3d 1345 (9th Cir. 1998) at

1350.

After a three week trial, the District Court made the

same finding, stating in Jury Instruction Number 15, in

pertinent part:

“You should not consider whether there was

probable cause to arrest for other crimes in mak-

ing the determination of whether there was

probable cause to arrest.” (Jury Instruction

Number 15, paragraph 3.) (Emphasis added.)

Petitioner cites dicta from a footnote to City of

Houston, Texas v. Hill, 482 U.S. 451, 461-63 (1987) to sup-

port his case. (Pet. 11.) Yet even this footnote dicta sup-

ports Mr. Gulliford’s position. He did not run alongside

an officer chasing a fleeing felon, or persistently try to

engage an officer in conversation who was attempting to

direct traffic at a busy intersection. Mr. Gulliford never

moved, verbally expressed his opinion in a single sen-

tence, and was arrested.

Nowhere in his Petition (other than a brief reference

at n. 4 (Pet. 10)) does the Petitioner address the finding of

the Court of Appeals that Jury Instruction Number 15

was an inaccurate statement of the law. Nor does the

Petitioner seriously argue that the decision, which found

that the instruction “misstates the law or is at best mis-

leading”, is incorrect. Gulliford v. Pierce County, 136 F.3d

at 1350.

At n. 4 (Pet. 10), Thrash contends that, by separating

Jury Instruction Number 15 into partial sentences, it can

be interpreted to state that verbal opposition is always

protected by the First Amendment, but other “non-ver-

bal” challenges can be probable cause for arrest.

This tortured interpretation of the jury instruction

was first advanced at the end of oral arguments before

the Court of Appeals. The relegation of this contention to

a footnote in the Petition accurately reflects its legal

import. The Petitioner cannot seriously be asking this

Court to split a sentence in half, and interpret it to infer

precisely the opposite of its obvious meaning.

The Petitioner has sought to have this Court decide a

manufactured question, not reflected by the facts of this

case, and one which has nothing to do with the proper

finding of the Ninth Circuit Court of Appeals.

Il.

QUALIFIED IMMUNITY IS NOT

AT ISSUE IN THIS MATTER

A. Qualified Immunity Is Not Proverly Before This

Court

The Petitioner almost completely ignores the ruling

of the Court of Appeals — that the issue of qualified

immunity was not properly before the Court as the

Appellees failed to cross-appeal from the District Court’s

denial of qualified immunity for the deputies.

The Petitioner addresses this ruling only in a single

paragraph in a footnote to his brief. (Pet. 16 at n. 6.) With

apparent arrogance, Petitioner states that because he pre-

vailed at the trial court level (using the improper and

incorrect jury instruction), the Appellees did not believe

it was necessary to appeal the denial of their petition for

qualified immunity.

Yet substantial case law supports the ruling of the

Court of Appeals. Spurlock v. F.B.I., 69 F.3d 1010, 1018 (9th

Cir. 1995), (“[A]n appellee who fails to file a cross-appeal

cannot attack a judgment with a view toward enlarging

its own rights.) See also Turpen v. City of Corvallis, 26 F.3d

978, 980 (9th Cir.), cert. denied, 513 U.S. 963 (1994); Hous-

ing Auth. v. Ponca City, 952 F.2d 1183, 1195 (10th Cir.

1991), (“An appellee may present an argument on appeal

only if it does not enlarge the rights conferred by the

original judgment.”); Texas Commerce Bank Nat. Ass’n. v.

National Royalty Corp., 799 F.2d 1081, 1083 (5th Cir. 1986),

(Appellee who failed to file cross-appeal could not attack

judgment with view toward enlarging rights.)

The question of qualified immunity is not properly

before the Supreme Court, as it was not properly before

the Court of Appeals.

B. Qualified Immunity Does Not Protect Officers From

Behavior Which Is Clearly Established To Be

Unconstitutional

Assuming arguendo that the Petitioner’s procedural

problems are overlooked by this Court, Petitioner poses

an interesting question: whether police following state

court precedent are entitled to qualified immunity, even if

the federal court interprets the same provision differently.

However, this question has no relation at all to the

matter at bar. The state court precedent, State v. Lalonde,

35 Wn.App. 54, 61-62, 665 P.2d 421 (1983), is identical to

the federal precedents, including Mackinney v. Nielsen, 69

F.3d 1002 (9th Cir. 1995); Duran v. City of Douglas, 904 F.2d

1372 (9th Cir. 1994); City of Houston, Texas v. Hill, 482 U.S.

451, 461-63 (1987); Lewis v. City of New Orleans, 415 U.S.

130, 132-134 (1974); Terminiello v. Chicago, 337 U.S. 1, 4

(1949); and so many others.

Contrary to Petitioner’s representation, in Lalonde the

officers had already been physically attacked twice by

other party-goers. Lalonde persisted in physically

approaching the officers, was repeatedly told to get back,

was physically pushed back, and when he physically

approached yet again, was arrested.

In upholding a guilty verdict against Mr. Lalonde for

Obstructing a Public Servant, the Washington State Court

of Appeals wrote in State v. Lalonde, 35 Wn.App. 54, 665

P.2d 421 (1983) at page 61: “Lalonde’s offense did not

arise from his speech, but from the acts which accom-

panied his words.”

10

Even while refusing to examine the issue of qualified

immunity because of Appellees’ failure to cross-appeal,

the Court of Appeals noted that the right to verbally

question the actions of police was “sufficiently clear” so

that a reasonable officer could understand that he or she

was violating the right. Gulliford v. Pierce County, 136 F.3d

at 1351.

Petitioner cites Anderson v. Creighton, 483 U.S. 635,

641 (1987), yet Anderson, supra, specifically concurs with

Gulliford v. Pierce County, supra:

“The contours of the right must be sufficiently

clear that a reasonable official would under-

stand that what he is doing violates that right.

This is not to say that an official action is pro-

tected by qualified immunity unless the very

action in question has previously been held

unlawful, [citations omitted,] but it is to say that

in the light of pre-existing law the unlawfulness

must be apparent.”

Pre-existing Washington State and federal law, dating

back many decades, all concur that such speech is not a

crime, and “the freedom of individuals verbally to

oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we

distinguish a free nation from a police state.” City of

Houston, Texas v. Hill, 482 U.S. 451, 461-63 (1987) at pages

462-463.

State v. Lalonde, 35 Wn.App. 54, 665 P.2d 421 (1983),

which reinforced that speech alone was not a crime and

was not criminalized by RCW 9A.76.020, was decided

nine years before Mr. Gulliford was arrested.

11

This Ninth Circuit Court of Appeals ruling directly

complies with, and reinforces, the Washington State

Court of Appeals decision in State v. Lalonde, supra, that

only acts may be criminalized, not speech alone.

It is alleged by the Petitioner that the Court of

Appeals did not address prior Supreme Court law such as

City of Houston, Texas v. Hill, 482 U.S. 451, 461-63 (1987)

and U.S. v. Brice, 926 F.2d 925, 931 (9th Cir. 1991). This is

untrue. The panel cited extensively from Hill, supra, stat-

ing that the facts of Hill and its progeny were “indis-

tinguishable” from those of this case. Gulliford v. Pierce

County, 136 F.3d at 1350. Brice, supra, and several other

cases cited by the Appellees, had facts too dissimilar to be

useful.

Petitioner states that the majority held that Mr. Gul-

liford’s non-verbal actions before and during his arrest

were constitutionally irrelevant and that once Gulliford

spoke, he could only be arrested if the words were fight-

ing words. (Pet. 16.)

To the contrary. The Court of Appeals did not rule

that Mr. Gulliford’s “non-verbal actions” were irrelevant

~ they ruled that they were non-existent. All Mr. Gulliford

did was to speak.

Petitioner again attempts to convince this Court to

decide a question which is not even remotely related to

the facts and the law of this case. Mr. Gulliford did

nothing but speak, and all of the precedents, state and

federal, are completely consistent on this issue — speech

alone, even when it is critical of police or their actions, is

not a crime.

12

Il.

AN EXAMINATION OF COURT OF APPEALS

DISCRETION REGARDING INSTRUCTIONAL

ISSUES IS IRRELEVANT IN THIS CASE

A. Because This Issue Was Repeatedly Raised Before

The Trial Court, Petitioner’s Question Regarding

Issues Which Were “Never Raised” Is Inappropriate

Yet again, Petitioner misstates the facts upon which

his question rests. Petitioner asks whether a jury’s verdict

may be reversed based upon an instructional error “never

raised” at trial. (Pet. 22.) The entire premise of the ques-

tion is false, and has been mischaracterized to this Court.

As the record shows, and as the Court of Appeals

found, Gulliford raised these issues in the District Court

repeatedly, stating that Mr. Gulliford’s speech was not a

crime as a matter of law, that the First Amendment pro-

tected such speech, that RCW 9A.76.020 did not criminal-

ize such speech, that Mr. Gulliford could not have

violated RCW 9A.76.020 simply by speaking (thus creat-

ing probable cause for a misdemeanor arrest), and that

the previous cases regarding this Washington State stat-

ute (including State v. Lalonde, 35 Wn.App. 54, 61-62, 665

P.2d 421 (1983)) supported Mr. Gulliford’s contentions:

e on 11/30/953, in “Plaintiff’s Brief in

Response to Defendants’ Motion for Partial

Summary Judgment” (CR 34, 13-15 and

18-21), stating in part:

3 The trial of this matter began on 03/18/96, and was sent

to the jury on 04/05/96.

ee

13

“The Washington cases cited [by Defen-

dants] are both distinguishable on their

face from the instant case in that they

both involved defendants who took

physical actions in addition to making

verbal statements.”4

e on 12/21/95, in “Plaintiff's Motion for Par-

tial Summary Judgment” (CR 61, 12-13 and

17-19), stating in part:

“(T]he court upheld a person’s convic-

tion for obstruction because of his physi-

cal actions, not his words.”;

and,

“In addition, Mr. Gulliford cannot be

arrested for these crimes because his

speech was protected by the First

Amendment.”.

e on 01/18/96, in “Plaintiff's Memorandum in

Reply to Defendants’ Brief Opposing Partial

Summary Judgment” (CR 68, 6-8), stating in

part:

“Amazingly, the Defendants now claim

that the crime of obstructing does not

require more than speech to convict

when the Defendants admit in the same

memorandum that it does take ‘more

than speech to convict’[.]”;

and,

4 The second case referred to in this quote was State v.

Kirvin, 37 Wn.App. 452, 682 P.2d 919 (1984), cited by the

Defendants, but which actually made no mention at all of RCW

9A.76.020.

14

“The defendants do not deny that Mr.

Gulliford did not act, and the videotape

of the incident clearly shows that he did

not act. Therefore, the officers did not

have probable cause to arrest Mr. Gul-

liford for obstructing.”

e on 03/15/96, in “Plaintiff’s Trial Brief” (CR

113, pp. 7-8), stating in part:

“Lastly, and most important, the court

stated in Lalonde that it was the defen-

dant’s actions, not his words, that caused

the offense. In this case, Mr. Gulliford

did not act.”

e on 04/05/97, in “Proposed Jury Instruction

31” (CR 141) stating:

“The First Amendment protects the right

of citizens to verbally oppose and/or

challenge police action without risking

arrest so long as that challenge does not

involve a threat or fighting words.”

e on 04/05/97, during an unrecorded session

in camera, Plaintiff’s counsel moved for a

Directed Verdict on Liability, because Mr.

Gulliford’s speech could not be grounds for

an arrest for obstructing, and also argued

against the Court’s and the Defendants’

incorrect interpretation of the obstructing

statute — that verbal comments alone could be

in violation of the obstructing statute and

therefore not protected by the First Amend-

ment. During oral arguments before the

Court of Appeals, Petitioner’s counsel admit-

ted that this was true. (See Gulliford v. Pierce

County, 136 F.3d at 1349.)

Se

15

e on 04/08/96, during oral arguments regard-

ing Jury Instructions (CR 162, RT 2-3), Plain-

tiff’s co-counsel, Bertha Fitzer, began

delineating Plaintiff's objections to Jury

Instruction Number 15 and its reference to

the First Amendment, when the District

Court judge interrupted her, clearly spelling

out his ruling from the previous Friday — his

belief that words alone could violate the

Washington State obstructing statute:

“I think the jury has to balance between

that right to speak and the right to speak

improperly as obstructing.”

e on 04/18/96, in “Plaintiff’s Memorandum in

Support of Motion for New Trial/JNOV” (CR

154, 1-5, 9), stating in part:

“The Ninth circuit and Washington state

preclude application of the statute in

question to speech alone. Because the

court’s application of RCW 9A.76.020(3)

was unconstitutional, the jury’s verdict

based upon that law is in error.”;

and,

“Herbert Gulliford was arrested for his

statements. His claim of unlawful arrest

should never have been submitted to the

jury. Instead, this court should have rec-

ognized that application of the obstruc-

tion statute to speech alone is

constitutionally invalid. A new trial, lim-

ited to damages, is thus required.”

e on 05/02/96, in “Plaintiff's Reply Re: Motion

for New Trial” (CR 157, 1-4), stating in part:

16

“But [here] there was no “conduct”,

there was only speech. Application of

RCW 9A.76.020 to Herbert Gulliford vio-

lated his First Amendment rights as a

matter of law.”

Petitioner’s claim that Gulliford affirmatively misled

the District Court (Pet. 25) is also without foundation,

and is the result of Petitioner’s continued misrepresenta-

tion of the District Court record.

In the judge’s “Order Denying Plaintiff's Motion for

New Trial/JNOV” (CR 156), the judge admitted that Mr.

Gulliford had raised this issue again and again, ruling in

part:

“The issues raised by plaintiff were fully dis-

cussed and considered at trial[.]”

Unfortunately, the District Court judge believed that

RCW 9A.76.020 did apply to speech alone, which was

reflected in his response to Mr. Gulliford’s objection to

Jury Instruction Number 15, stating that there needs to be

a “balance” between the First Amendment right of free

speech and the state obstructing statute.

Jury Instruction 15, in its last paragraph, exactly

stated the District Court judge’s view:

“The First Amendment protects the right of citi-

zens to verbally oppose and/or challenge police

action without risking arrest so long as that

challenge does not knowingly hinder, delay, or

obstruct any public servant in the discharge of

the public servant’s official powers or duties.”

The District Court judge felt that speech which so

much as “delayed” an officer, even for the shortest period

17

of time, could be considered a crime under RCW

9A.76.020.

Clearly, Respondent Gulliford had informed the Dis-

trict Court of his objections to the District Court's inter-

pretation of RCW 9A.76.020, its state law implications,

and its First and Fourth Amendment repercussions,

throughout the District Court case, and the Court itself

readily admitted this.

B. The Ninth Circuit Is Already The Most Strict Cir-

cuit In Interpreting Fed.R.Civ.P. 51

Indeed, the Ninth Circuit Court of Appeals is the

most strict Circuit in its application of Fed.R.Civ.P. 51. See

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. denied, 503 U.S. 975 (1992); McGonigle v. Combs, 968

F.2d 810, 823 (9th Cir.), cert. dismissed, 506 U.S. 948 (1992);

Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991);

Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149,

1152-53 (9th Cir. 1990); and Brown v. Avemco Inv. Corp.,

603 F.2d 1367 (9th Cir. 1979.)

That has not been altered in the least by the decision

in Gulliford v. Pierce County, 136 F.3d 1345 (9th Cir. 1998.)

Petitioner Thrash cites 9A Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 2558 at

468, n. 14 (1994.) The full quotation from that reference

states:

“Nevertheless the Ninth and Seventh Circuits

stand alone in reading Civil Rule 51 literally and

denying that there is any power to reverse for

18

plain error in an unobjected to instruction to the

jury in a civil case.”

It should be noted that Respondent Gulliford has

never claimed “plain error” in the instant case. Rather,

Mr. Gulliford has claimed that throughout the case he

had repeatedly informed the District Court of his objec-

tion to the Court’s interpretation of RCW 9A.76.020, and

the resultant incorrect jury instruction.

Additionally, Petitioner appears to be asking this

Court to intervene, and to force the Ninth Circuit, already

the most strict circuit in its interpretation of Fed.R.Civ.P.

51, to be even more strict.

After being informed of “Petitioner’s Suggestion for

Rehearing En Banc”, and having had the opportunity to

read Judge O’Scannlain’s dissent (which pertained solely

to the instructional issue), not a single member of the full

panel of the Ninth Circuit Court of Appeals asked that a

vote be taken as to whether to rehear the matter en banc.

(Pet. App. B.)

This resounding rejection of Judge O’Scannlain’s dis-

sent regarding incorrect jury instructions and the neces-

sary objections thereto demonstrates that there is not

even an intra-circuit conflict, much less an inter-circuit

conflict.

19

CONCLUSION

Although all three of the questions posed by the

Petitioner purport to be worthwhile issues for this Court

to address, not one of the questions even remotely corre-

sponds to the facts, law and legal history of this case.

The Petitioner has mischaracterized, misstated, and

misrepresented facts and law in his Petition for Writ of

Certiorari. Even the state statute at issue in this matter

was incorrectly cited to this Court.

Petitioner Thrash does not even argue that the pri-

mary holding of the Court of Appeals decision — that Jury

Instruction Number 15 was blatantly incorrect —- was in

error.

Respondent Gulliford respectfully requests that the

petition for writ of certiorari be denied.

Following the Court of Appeals’ denial of Petitioner

Thrash’s “Motion to Recall Mandate” pursuant to the

Ninth Circuit’s authority to deny a motion for recall/stay

when the petition is “frivolous or filed merely for delay”

(Ninth Circuit Rule 41-1), Respondent requests damages

in an amount sufficient to cover the cost of printing the

brief in opposition, pursuant to Supreme Court Rule 42.2.

Dated: July 24, 1998

Respectfully submitted,

DIANA LYNN KiIeseEL” Joe. A. FELDMAN

424 Broadway 14706 Union Avenue S.W.

Tacoma, WA 98402 Lakewood, WA 98498

253.274.1196 253.582.6109

Counsel for Respondent

* Counsel of Record