# Opposition Brief — Thrash v. Gulliford

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 828

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1169%3A3. Public record. Not legal advice.