Appendix — Thrash v. Gulliford
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no. 91 430 sep 122901
OFFICE OF THE CLERK
IN THE SUPREME COURT
OF THE UNITED STATES
October Term, 2001
DEPUTY PAUL THRASH,
Petitioner/Appellee,
v.
HERBERT GULLIFORD.
Respondent/Appellant
On Petition for Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
PETITIONER’S APPENDIX
GERALD A. HORNE
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
oS Se
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APPENDIX
2/27/98 Opinion in Gulliford v. Pierce County,
4/9/98 Denial of petition for review
5/25/01 Opinion in Gulliford v. Thrash
: 6/4/01 Denial of petition for review
2/12/96 Order Denying P’s S.J. Motion (CR 77)
4/8/96 Exceptions to Instructions (CR 162)
: 5/3/96 Order Denying P’s JNOV (CR 156)
12/1/99 Court’s Instructions To Jury (CR 301)
3/18/96-3/19/96 Transcript Trial Excerpts (CR 166)
3/20/96-3/27/96 Transcript Trial Excerpts (CR 167)
: 4/1/96-4/4/96 Transcript Trial Excerpts (CR 169)
5/15/00 Brief Of Appellee
: 11/29/99 Transcript Trial Excerpts (CR 314)
11/30/99 Transcript Trial Excerpts (CR 315)
11/23/99 Transcript Trial Excerpts (CR 319)
11/29/99 Transcript Trial Excerpts (CR 321)
11/29/99 Transcript Trial Excerpts (CR 322)
11/30/99 Transcript Trial Excerpts (CR 324)
11/22/99 Transcript Trial Excerpts (CR 318)
11/29/99 Transcript Trial Excerpts (CR 323)
11/30/99 Transcript of Proceedings (CR 316)
: 12/1/99 Transcript of Proceedings (CR 317)
W: U-S. Constitution, Article VI, clause 2
U.S. Constitutional Amendment I
U.S. Constitutional Amendment IV
28 USC §1738
42 USC §1983
RCW 9A.84.020
RCW 9A.76.020(1)
AST IOUMOOW>
<GHAPROVOZELR
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
. to
HERBERT GULLIFORD,
Plaintiff-Appellant,
V.
Prerce County, a municipality and
governmental subdivision of the No. 96-35614
State of Washington; JoHN D.C. No
SuieLps, Sheriff of Pierce County; yp Mntee
PauL THRASH, individually and as CV-94-05658-RJB
Pierce County Deputy Sheriff; OPINION
TERRILL Larson, individually and
as Pierce County Deputy Sheriff;
P. DonneELLY, individually, and as
Pierce County Deputy Sheriff,
Defendants-Appellees.
}
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted
November 7, 1997—Seattle, Washington _
Filed February 27, 1998
Before: Betty B. Fletcher and Diarmuid F. O’Scannlain,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge Fletcher; Partial Concurrence and
Partial Dissent by Judge O’Scannlain
*Honorable William W Schwarzer, Senior United States District Judge
for the Northern District of California, sitting by designation.
1611
-l-
Avpendix "A"
1616 GULLIFORD v. Prerce County
OPINION
FLETCHER, Circuit Judge:
Herbert Gulliford appeals the judgment entered following
a jury trial in his 42 U.S.C. § 1983 action against Pierce
County and various law enforcement officials alleging that his
constitutional rights were violated when he was arrested for
obstructing a public servant and resisting arrest. Gulliford
contends that the district court erred in its instructions to the
jury regarding his wrongful arrest and excessive force claims.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm
in part, reverse in part, and remand for a new trial.
I.
On the evening of September 6, 1992, a group of individu-
als were gathered around a fire on the north beach of Herron
Island, a small privately owned island located just within the
borders of Pierce County, Washington, west of Key Penin-
sula. At about 9:20 p.m. that night, the Pierce County Sher-
iff's Department (“PCSD”) received a call that someone in
the environs of the group had threatened a woman’s family.
About two hours later, the PCSD received a report that “J.D.”,
a member of the group gathered on the beach, had threatened
a firefighter who attempted to extinguish the group’s fire. In
response, the three named deputy sheriffs, Thrash, Larson and
Donnelly, were dispatched to the island to arrest J.D. and
extinguish the fire.
Upon arriving on the island, the deputies were informed
that J.D. had gone home. Deputy Thrash told the group, “This
party is over, people,” but none of the members left the beach.
In response to Deputy Thrash’s next statement that “I’m tired
of this. This is a waste of government .. . ,” Guiliford replied,
“Then why don’t you hop on the ferry, hop on the ferry and
go back.” Deputy Thrash then maneuvered through the crowd,
grabbed Gulliford from behind, and placed him under arrest
GULLIForD v. Perce County 1617
for obstructing a public servant in violation of Wash. Rev.
Code. § 9A.76.020.'
At this point, Guiliford intentionally fell to a Sitting posi-
tion and refused to comply with orders to stand and put his
hands behind his back. The deputies grabbed Gulliford’s
arms, put him in a “hair hold,” and placed a knee in his back.
Although Gulliford did not kick out at or otherwise assault the
officers, he continued Passively to resist arrest. Deputies Lar-
son and Donnelly then sprayed pepper spray in Gulliford’s
face. The deputies were eventually able to get one of Gulli-
ford’s wrists in handcuffs, and, after a second spraying in the
face with pepper spray, Gulliford ceased resisting. Gulliford
was additionally cited for resisting arrest pursuant to Wash.
Rev. Code § 9A.76.040.?
Gulliford was taken to the Pierce County Jail and held there
until he posted- bond. The deputies never claimed that they
thought that Gulliford was “J.D.”, and no charges were ever
filed against Gulliford. Gulliford contends that he suffered
permanent injuries as a result of the officers’ use of force in
effecting the arrest.
Claiming that he was wrongfully arrested and that the dep-
uties used excessive force in violation of his First, Fourth and
Fourteenth Amendment rights, Gulliford filed this § 1983
action against Pierce County, Pierce County Sheriff John
Shields, and, in their individual as well as official Capacities,
the three deputies, Thrash, Larson and Donnelly. The claims
"Wash. Rev. Code § 9A.76.020 provides in pertinent part: “Every per-
son who . . . (3) shall knowingly hinder, delay, or obstruct any public ser-
vant in the discharge of his official powers or duties; shall be guilty of a
misdemeanor.”
*Wash. Rev. Code § 9A.76.040 provides: “(1) A person is guilty of
resisting arrest if he intentionally prevents or attempts to prevent a peace
Officer from _lawfully arresting him. (2) Resisting arrest is a
misdemeanor.”
1618 GuLutrorD v. Prerce County
against Pierce County, however, were dismissed by stipula-
tion of the parties on October 30, 1995.*
The case was tried for three weeks before an eight person
jury, although the wrongful arrest claims as to Larson and
Donnelly were dismissed on defendant’s motion for a directed
verdict and were never submitted to the jury. The jury
returned verdicts for Deputy Thrash on the wrongful arrest
claim and for all defendants on the excessive force claim.
Il.
Gulliford contends that two of the instructions given to the
jury were erroneous. “Jury instructions must be formulated so
that they fairly and adequately cover the issues presented, cor-
rectly state the law, and are not misleading.” Chwman v.
Wright, 76 F.3d 292, 294 (9th Cir. 1996). When the alleged
error is in the formulation of the instructions, the instructions
are to be considered as a whole and an abuse of discretion
standard is applied to determine if they are misleading or
inadequate. Masson v. New Yorker Magazine, Inc., 85 F.3d
1394, 1397 (9th Cir. 1996). However, when the claim is that
the trial court misstated the elements that must be proved at
trial, the reviewing court must view the issue as one of law
and review the instruction de novo. Fireman’s Fund Ins. Cos.
v. Alaskan Pride Partnership, 106 F.3d 1465, 1469 (9th Cir.
1997).
A.
Jury Instruction Number 15 stated in pertinent part:
The First Amendment protects the right of citizens to
verbally oppose and/or challenge police action with-
*The references in this opinion to arguments by “Pierce County” refer
to Pierce County Deputy Prosecuting Attorney Daniel R. Hamilton, who
argued the instant appeal on behalf of the Pierce County Deputy Sheriffs.
GuLLIFoRD v. Prerce County 1619
out risking arrest so long as that challenge does not
knowingly hinder, delay, or obstruct any public ser-
vant in the discharge of the public servant’s official
powers or duties.
On appeal, Gulliford claims that his arrest for Obstructing
a Public Servant was without probable cause. He contends
that Jury Instruction Number 15 does not state a crime
_because verbal protests or challenges to the police are permit-
ted, even if they knowingly hinder, delay or obstruct the
police. To be criminal, the words must be fighting words. He
makes the further point that § 9A.76.020, which prohibits hin-
dering, delaying or obstructing a public servant, criminalizes
conduct only, not words. He is correct.
As a preliminary matter, Pierce County argues that Gulli-
ford is precluded from raising this issue on appeal because he
failed to object properly at trial. Specifically, Pierce County
contends that the record of Gulliford’s exceptions to Jury
Instruction Number 15 “is devoid of any mention of the First
Amendment’s claimed effect on probable cause... .™
[1] Federal Rule of Civil Procedure 51 provides that “No
party may assign as error the giving or the failure to give an
instruction unless that party objects thereto before the jury
retires to consider its verdict, stating distinctly the matter
objected to and the grounds of the objection.” It is the respon-
sibility of the litigants to ensure compliance with FRCP 51,
and we have generally interpreted that rule “strictly.”
McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir.), cert. dis-
“Pierce County asserts that the entirety of Gulliford’s argument to the
District Court regarding Jury Instruction Number 15 was as follows:
It does not include a claim for specific First Amendment viola-
tion, and as we indicated in our trial brief and in discussion previ-
ously with the court, we believe that both the First Amendment
and the Fourth Amendment are implicated and that a violation of
either would give rise to a cause of action.
1620 GULLIFORD v. PIERCE County
missed, 506 U.S. 948 (1992). However, we have recognized
“a limited exception” to the strict interpretation of FRCP 51:
“ “Where the district court is aware of the party’s concerns
with an instruction, and further objection would be unavail-
ing, we will not require a futile formal objection.’ ” Jd.
(citation omitted). Specifically, we have held that such an
objection is a pointless formality “ ‘when (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.’” Glover v. BIC
Corp., 6 F.3d 1318, 1326 (9th Cir. 1993) (quoting United
States v. Payne, 944 F.2d 1458, 1464 (9th Cir. 1991), cert.
denied, 503 U.S. 975 (1992)). ;
[2] Gulliford meets the requirements of the “pointless
formality” test. The instruction he proposed (No. 31) stated:
Defendants claim that they had probable cause to
arrest plaintiff for obstructing a police officer in the
conduct of his lawful -duties. The First Amendment
protects the right of citizens to verbally opposed and/
or challenge police action so long as that challenge .
does not involve a threat or fighting words.
- * %* *
City of Houston v. Hill,
482:°U.S. 451, 462, 107 S.Ct. 2502, 2510 (1987)
[3] As in Glover v. BIC Corp., Gulliford’s proposed
instruction was an “accurate statement[] of the law which
should have brought to the court’s attention the failure of the
general charge to adequately address the issue of” probable
cause. 6 F.3d at 1327. In Glover, we held that such a proposed
instruction was sufficient despite the party’s failure to object
to instructions as given. Jd. Here, in contrast to Glover, not
only did Gulliford propose an alternative jury instruction, he
GULLIForD v. Pierce County 1621
also objected in open court to Jury Instruction Number 15,
albeit in less specific terms, and the parties concede that addi-
tional discussions regarding the jury instructions occurred off
the record in chambers.* We are thus satisfied that the district
court knew of Gulliford’s grounds for disagreement, and that,
on the instant record, the “proposed [probable cause] instruc-
tion[ ] will serve as an objection to the instructions given the
jury.” Id.; cf. United States v. Payne, 944 F.2d 1458, 1463-64
(9th Cir. 1991), cert. denied, 503 U.S. 975 (1992) (specific
objection not a “pointless formality” where it was clear from
the record that failure to give a presumption of innocence
instruction was due to simple oversight and counsel failed to
alert the court to the omission when it pointedly asked
whether there were any objections to the instructions read to
the jury). As a result, Gulliford is not precluded from raising
on appeal his objection to Jury Instruction Number 15.°
*Pierce County cites Benigni v. City of Hemet, 879 F.2d 473, 475-76
(9th Cir. 1988), for the proposition that, notwithstanding Gulliford’s pro-
posed alternative jury instruction, his objection was not properly preserved
because “the trial court was not made aware of any specific concern with
the proposed instructions.” However, unlike Gulliford, the litigant in
Benigni made no oral objection or argument whatsoever at trial-/d. at 476.
Pierce County concedes that Gulliford by contrast did make an oral objec-
tion to Jury Instruction Number 15 specifically regarding the First Amend-
ment. Although the precise articulation of Gulliford’s First Amendment
argument was not as artfully presented in his oral objection as it was in
his alternative jury instruction, it was sufficient to give the court “an
Opportunity to modify the instruction and incorporate the elements of the
. . . proposed instructions.” Jd.
Judge O’Scannlain’s partial dissent suggests that this case is controlled
by Grosvenor Properties Lid. v. Southmark Corp., 896 F.2d 1149, 1152-
53 (9th Cir. 1990), in which we held that Southmark failed to comply with
the requirements of FRCP 51 notwithstanding the fact that Southmark
offered an alternative jury instruction. See infra at 1626, 1629-30. How-
ever, in contrast to the instant case, the alternative jury instruction in
Grosvenor failed “to state distinctly the matter objected to and the ground
of the objection as required by Rule 51.” 896 F.2d at 1152. Gulliford’s
proposed jury instruction, on the other hand, precisely articulated the mat-
ter objected to and the grounds of the objection, much like the alternative
1622 GULLIFORD v. PrERCcE County
[4] The Supreme Court has consistently held that the First
Amendment protects verbal criticism, challenges, and profan-
ity directed at police officers unless the speech is “ ‘shown
likely to produce a clear and present danger of a serious sub-
stantive evil that rises far above public inconvenience, annoy-
ance or unrest.’” City of Houston, Texas v. Hill, 482 US.
451, 461-63 (1987) (quoting Terminiello v. Chicago, 337 US. .
1, 4 (1949)); see also Lewis v. City of New Orleans, 415 U.S.
130, 132-134 (1974).
In Hill, a case with facts substantially similar to those
before us, the appellee shouted at police officers who had
approached his friend to “pick on somebody your own size.”
Id. at 454. Hill was arrested under a city ordinance that pro-
hibited “oppos[ing], molest[ing], abus[ing] or interrupt[ing]
any policeman in the execution of his duty.” Jd. at 455.
Although Hill was acquitted, he brought an action seeking to
strike the ordinance as unconstitutional on its face. Jd. The
Supreme Court agreed, emphasizing that “[t]he Constitution
does not allow such speech to be made a crime,” and that
“(t]he freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the prin-
cipal characteristics by which we distinguish a free nation
from a police state.” Id. at 462-63.
Similarly, in Lewis v. City of New Orleans, as iater
recounted in Hill, the appellant yelled obscenities at an of. icer
who had asked appellant’s husband to produce his driver’s
license. Id. at 461. Lewis was convicted under a municipal
ordinance that made it a crime “for any person wantonly to
curse or revile or to use obscene or opprobious language
instruction in Brown v. Avemco Inv. Corp., 603 F.2d 1367 (9th Cir. 1979),
cited with approval in Grosvenor, 896 F.2d at 1153. As we noted in
Grosvenor, the plaintiff in Brown adequately complied with the require-
ments of FRCP 51 because his proposed instruction was tna clear
to focus the issue for the jury. See id.
GuLLiForD v. Prerce County 1623
toward or with reference to any member of the city police
while in the actual performance of his duty.” Lewis, 415 U.S.
at 132. The Supreme Court vacated the conviction and invali-
dated the ordinance as facially overbroad, explaining that the
ordinance was not limited in scope to “fighting words” that
“ “by their very utterance inflict injury or tend to incite an
immediate breach of the peace.’ ” Jd. at 133 (quoting Gooding
v. Wilson, 405 U.S. 518, 525 (1972)).
Relying, inter alia, on the Supreme Court’s decision in
Hill, we ruled in Mackinney v. Nielsen that expressive con-
duct such as writing with chalk on the sidewalk does not itself
create probable cause for arrest, and that verbally protesting
an officer’s order to stop writing is protected by the First
Amendment. See 69 F.3d 1002, 1007-08 (9th Cir. 1995). The
decision in Mackinney also relied on Duran v. City of Doug-
las, in which we emphasized that “criticism of the police is
not a crime,” and that “while police, no less than anyone else,
may resent having obscene words and gestures directed at
them, they may not exercise the awesome power at their dis-
posal to punish individuals for conduct that is not merely law-
ful but protected by the First Amendment.” 904 F.2d 1372,
1377, 1378 (9th Cir. 1990).
[5] The facts before us are indistinguishable from those in
Hill and its progeny. If anything, Gulliford’s suggestion that
Deputy Thrash “hop on the ferry” is less provocative than the
"Pierce County contends that Gulliford’s statement included profanity.
However, the testimony of the PCSD deputies is somewhat inconsistent on
this point. Deputy Thrash wrote in his report that Gulliford said “Then
why don’t you get the fuck off the island.” Deputy Donnelly wrote in his
report that “A person on the far side of the fire said why don’t you leave
the fuckin[g] island. [Deputy Thrash] walked around the fire and grabbed
Mr. Guiliford from behind and pulled him over backwards.” Finally, Dep-
uty Larson wrote that “Thrash told them to leave and told them we were
tired of coming over to stop these problems, no one moved and a male
voice to my right said something to the effect of ‘Then get the hell off the
island.” Thrash walked over and grabbed the only male around, he had
been crouching down between two women when he said it. Thrash told
him he was under arrest . . . .” In any event, whether Gulliford may have
used profanity does not affect the analysis.
1624 GULLIFORD v. Prerce County
“opprobious language” found in those cases. Jury Instruction
Number 15 misstates the law or is at best misleading since it
does not state that under the First Amendment an individual
cannot be arrested for mere speech unless the speech consti-
tutes “fighting words.” See Hill, 482 U.S. at 465-67; see also
Mackinney, 69 F.3d at 1007-08; Duran, 904 F.2d at 1377-78.
We agree that Jury Instruction Number 15 was impermissibly
misleading, warranting reversal unless the error was harmless.
[6] In a civil case, “[{i]f a jury instruction is erroneous, we
will reverse the judgment unless the error is more probably
than not harmless.” Chuman v. Wright, 76 F.3d 292, 294 (9th
Cir. 1996). 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 that Gulliford did—he
spoke. As a matter of law, the words spoken were not
“fighting words.” Accordingly, we reverse and remand for a
new trial on this claim.
B.
Jury Instruction Number 14 stated:
An individual has a limited right to offer reasonable
resistance to an arrest made without probable cause,
but only if the arrest is the product of the officer’s
bad faith, provocative conduct, or personal frolic. In
such a case, the amount of force used to resist an
unlawful arrest must be reasonable and proportioned
to the injury attempted upon the arrestee.
On appeal, Gulliford argues that this jury instruction was
erroneously based on federal law rather than Washington
State law.
[7] The objection is not well taken. We need not go beyond
the observation that the Washington law on this point is sub-
stantially indistinguishable from the federal law. The Wash-
GULLIFORD v. Pierce County 1625
ington state case quoted by Gulliford states that a “person
being illegally arrested may use reasonable and proportional
force to resist the arrest.” State v. McCrorey, 851 P.2d 1234
(Wash. Ct. App. 1993) (citing State v. Hornaday, 713 P.2d 71
(Wash. 1986)). This “reasonable and proportional” standard is
to all appearances identical to the one found in Jury Instruc-
tion 14.
[8] Accordingly, the district court did not err in instructing
the jury under federal rather than Washington State law with
regard to Gulliford’s claim that the arresting officers used
excessive force. :
Ii.
)
[9] Pierce County argues on appeal that Deputy Thrash is
entitled to qualified immunity from Gulliford’s wrongful
arrest claim and that all of the deputies are entitled to quali- ~
fied immunity from Gulliford’s excessive force claim. How-
ever, Pierce County neglects to explain why it did not cross-
appeal on this issue from the district court’s denial of its
motion seeking qualified immunity.
[10] As we recently reiterated, “[a]n appellee who fails to
file a cross-appeal cannot attack a judgment with a view
toward enlarging its own rights.” Spurlock v. FBI, 69 F.3d
1010, 1018 (9th Cir. 1995) (citing Turpen v. City of Corvallis,
26 F.3d 978, 980 (9th Cir.), cert. denied, 513 U.S. 963
(1994)).
[11] Moreover, even if Pierce County had cross-appealed,
it does not appear that the district court erred in denying the
officials qualified immunity. As we explained in Mackinney
v. Nielsen, “the Supreme Court instructed courts Tuling on
qualified immunity to examine whether the ‘contours of the
right’ at stake in the action are sufficiently clear so that a rea-
sonable official could understand that he or she is violating
1626 GuLLIForD v. PreERcE County
the right.” 69 F.3d 1002, 1006-07 (9th Cir. 1995). We ulti-
mately concluded in that case that
Police officers have a difficult job, and they deserve
the respect of their community. But they in turn must
respect the right of individuals in that community to
question their government and the role of the police.
A reasonable officer should have known that Mac-
kinney was simply exercising that right.
Id. at 1007.
AFFIRMED in part, REVERSED in part, and
REMANDED for a new trial. Appellee to bear costs.
O’SCANNLAIN, Circuit Judge, concurring in part and dis-
senting in part.
- I would affirm the judgment of the district court. Regretta-
bly, I cannot join Section I.A’s discussion of the jury instruc-
tion on verbal opposition to police action, which, in my view,
threatens “[t]his court[’s] . . . reputation as the strictest
enforcer of Rule 51,” Hammer v. Gross, 932 F.2d 842, 847
(9th Cir. 1991), and creates a direct intra-circuit conflict with
Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149
(9th Cir. 1990). Therefore, I respectfully dissent and would
not reach the question of qualified immunity, which the
majority discusses in Part ITI.
I »
Federal Rule of Civil Procedure 51 states:
No party may assign as error the giving or the failure
to give an instruction unless that party objects
thereto before the jury retires to consider its verdict,
GuLLirorD v. Prerce County 1627
stating distinctly the matter objected to and the
grounds of the objection.
Fed. R. Civ. P. 51 (emphasis added). Our court has
“interpreted this rule strictly and ha[s] stated that, ‘[iJn a civil
case, we May not review a jury instruction in the absence of
a proper objection.’ ” McGonigle v. Combs, 968 F.2d 810,
823 (9th Cir. 1992) (quoting Larez v. City of Los Angeles, 946
F.2d 630, 638 (9th Cir. 1991)); see also 9 C. Wright & A.
Miller, Federal Practice and Procedure § 2558, at 674 (1971)
(“[TJhe Ninth Circuit stands alone in reading Civil Rule 51
literally and denying that there is any power to reverse for
plain error in an unobjected-to instruction in a civil Case.”)
The party objecting to the instruction must bring “into focus
the precise nature of the alleged error in the district court’s
instruction.” McGonigle, 968 F.2d at 824 (emphasis added).
Gulliford now argues that he was arrested for obstructing
a police officer without probable cause in violation of the
Fourth Amendment. He does not claim on appeal that his First
Amendment right verbally to hinder, delay, or obstruct the
police was also violated.
Gulliford correctly argues before this court that jury
instruction 15' was flawed because it failed to inform the jury
that the police lacked probable cause to arrest him for speech
that “knowingly hinder[ed], delay[ed], or obstruct[ed]” the
police but did not include “fighting words [ Jor . . . obscene
or opprobrious language.” Houston v. Hill, 482 U.S. 451, 461
(1987). Gulliford’s objection to jury instruction 15 at trial
rested on an entirely different ground. Gulliford’s argument
was as follows:
‘Jury instruction 15 stated:
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 knowingly hinder, delay, or
obstruct any public servant in the discharge of the public ser-
vant’s official powers or duties.
1628 GULLIFORD v. Prerce COUNTY
[The instruction] does not include a claim for a spe-
cific First Amendment violation, and as we indicated
in our trial brief and in discussions previously with
the court, we believe that both the First Amendment
and the Fourth Amendment are implicated and that
a violation of either would give rise to a cause of
action.
In other words, Gulliford argued at trial that instruction 15 did
not separately address his (now abandoned) claim that his
First Amendment rights had been violated as well. Gulliford’s
(perhaps incorrect) argument was that the instruction was
exclusively concerned with his Fourth Amendment claim —
not that the instruction misstated the elements of that claim.
Of course, the contours of Gulliford’s Fourth Amendment
claim are shaped both by Wash. Rev. Code § 9A.76.020 —
the Washington statute that prohibits obstruction of law
enforcement officers — and by the First Amendment. Section
9A.76.020 provides: “Every person who . . . (3) shall know-
ingly hinder, delay, or obstruct any public servant in the dis-
charge of his official powers or duties; shall be guilty of a
misdemeanor.” Meanwhile, the First Amendment gives indi-
viduals the right to verbally obstruct public servants as long
as they do not use “fighting words [ Jor . . . obscene or oppro-
brious language.” Houston v. Hill, 482 U.S. 451, 462 (1987).
Viewed in conjunction with Wash. Rev. Code § 9A.76.020,
the First Amendment helps to define Gulliford’s nght under
the Fourth Amendment not to be arrested for obstructing the
police without probable cause.
However, Gulliford’s objection at trial to jury instruction
15 had nothing to do with his rights under the Fourth Amend-
ment. Rather, Gulliford wanted the district court to instruct
the jury separately regarding an alleged violation of his First
Amendment right to verbally obstruct police officers. Because
Gulliford failed to “stat{e] distinctly the matter objected to
and the grounds of [his] objection [at trial],” Fed. R. Civ. P.
GULLIFORD v. Pierce County 1629
51 (emphasis added), he is precluded from raising his Fourth
Amendment argument on appeal.
I
The majority invokes the “pointless formality” exception to
Rule 51. As we explained in United States v. Payne, 944 F.2d
1458 (9th Cir. 1991), “an objection may be a ‘pointless for-
mality’ when (1) throughout the trial the party argued the dis-
puted 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 1464. 7
It is undisputed by the parties that Gulliford offered an
alternative instruction. Gulliford has failed to demonstrate,
however, either that “throughout the trial [he] argued the dis-
puted matter with the court,” or that “it is clear from the
record that the court knew [Gulliford’s] grounds for disagree-
ment with the instruction.” Jd. (emphasis added). Apart from
noting that Gulliford submitted an alternative instruction
(thereby satisfying only the third element of the pointless for-
mality test), 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.
In Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d
1149 (9th Cir. 1990), the defendants submitted an alternative
jury instruction that was rejected by the district court. See id.
at 1152. At a sidebar conference called to consider the
instructious, the defendants stated that their proposed instruc-
tion had not been given. See id. The district court responded
that it had rejected the instruction and that it was unnecessary
for counsel to repeat previously submitted instructions or
objections. See id. We held that such a “sequence of events
is not sufficient to constitute a sufficient objection to the
instructions that were given, as Rule 51 is applied in this
circuit.” Id. If the defendants in Grosvenor did not succeed in
1630 GuLLIFoRD v. Pierce CouNTY
preserving their objection despite complaining that their pro-
posed instruction had not been given, then certainly Gulliford,
who did nothing to call attention to the district court’s rejec-
tion of his instruction, failed to preserve his objection.
In an attempt to distinguish Grosvenor, the majority relies
upon a sentence from that opinion. See Majority Opinion at
1621 n.6 (“However, in contrast to the instant case, the alter-
native jury instruction in Grosvenor failed ‘to state distinctly
the matter objected to and the ground of the objection as
required by Rule 51.’ ”) (quoting Grosvenor, 896 F.2d at
1153). The relevant passage in Grosvenor, however, states, in
full:
Southmark argues that it made the required specific
objection to the instruction that failed to state that
termination of the joint venture would end fiduciary
duty, and that it submitted alternative theories of lia-
bility to the jury by way of special verdict questions.
It contends that it did so by its submission of pro-
posed jury instruction 22. In addition, at a sidebar
conference called to consider corrections and addi-
tions to the instructions, Southmark’s counsel stated
that instruction 22 had not been given and the court
responded that it had rejected that instruction. At that
same conference the court noted that it was not nec-
essary for counsel to repeat previously submitted
instructions or objections.
However, this sequence of events is not sufficient
to constitute a sufficient objection to the instructions
that were given, as Rule 51 is applied in this circuit.
This court has held that remarks made by counsel in
chambers, discussion of law in pretrial memoranda
and mere submission of proposed instructions did
not clearly show that the issue was focused before
the court.
GULLIFORD v. PIERCE CouNTY 1631
In addition, an examination of proposed instruc-
tion 22 suggests that it was not sufficient to state dis-
tinctly the matter objected to and the ground of the
objection as required by Rule 51.
Id. at 1152-53 (internal citations omitted). As the above pas-
sage demonstrates, our holding in Grosvenor, that a
“sequence of events” which includes the submission of an
alternative jury instruction does not “constitute a sufficient
objection to the instructions that were given,” did not turn on
whether that alternative instruction “state[d] distinctly the
matter objected to and the ground of the objection.” Jd.
Although we observed (“addition[ally]”) in Grosvenor that
the alternative instruction was unclear, id. at 1153 (citing
Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1371 (9th Cir.
1979)), the clarity of the alternative instruction was irrelevant
to Grosvenor’s analysis of the “sufficien[cy]” of the relevant
“sequence of events.” Jd. at 1152. Far from distinguishing
Grosvenor, the majority’s discussion of that case demon-
strates why the majority opinion is in direct conflict with it.
I respectfully dissent.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT GULLIFORD
Plaintiff-Appellee,
Ve
PIERCE COUNTY, a muni-
cipality and govern-
mental subdivision of
the State of Washington
JOHN SHIELDS, Sheriff
of Pierce County; PAUL
THRASH, individually
and as Pierce County
Deputy Sheriff; TERRILL
LARSON, individually
and as Pierce County
Deputy Sheriff; P.
DONNELLY, individually,
and as Pierce County
Deputy Sheriff,
No. 96-35615
D.C. No.
CV-94-05658-RJB
ORDER
ee a a a a a a a a ae ee ee eee er”
Defendants~Appellees.
Before: FLETCHER and O'SCANNLAIN, Cir-
cuit Judges, and SCHWARZER, *
District Judge.
Judges Fletcher and Schwarzer vote
to deny the petition for rehearing.
Judge O'Scannlain would grant rehearing.
Judge Fletcher votes to deny the
=
Appendix “B”
suggestion for rehearing en banc and
Judge Schwarzer so recommends. Judge
o'Scannlain would grant the rehearing en
banc.
The full court has been advised of
the suggestion for an en banc rehearing,
and no judge of the court has requested
a vote on the suggestion for rehearing
en banc. Fed. R. App. P. 35.
The petition for rehearing is denied
and the suggestion for rehearing en banc
is rejected.
* Honorable William W Schwarzer,
Senior United States District Judge for
the Northern District of California,
sitting by designation.
i.
Appendix “B”
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT GULLIFORD, _ )
) NO. 00-35005
Plaintiff-Appellee, )
) D.C. No.
) CV-94-05658-FDB
Vv. )
) MEMORANDUM*
PAUL THRASH, )
)
)
Defendant-Appellee.
)
Appeal from the United States
District Court \
Western District of Washington
Franklin D. Burgess, District Judge. Presiding
Argued and Submitted December 7, 2000
Seattle, Washington
BEFORE: — B. FLETCHER and FISHER, Circuit
Judges, and SCHWARZER, **
Senior District Judge
* This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by Ninth Circuit Rule
36-3.
** The Honorable William W Schwarzer, Senior United States District xs
Judge for the Northern District of California, sitting by designation.
As
Appendix “C”
Herbert Gulliford appeals from an adverse verdict in his
§ 1983 action against Pierce County and various law enforce-
ment officers. Gulliford claimed that his arrest by the deputy
sheriffs violated his Fourth Amendmentrights. On a prior ap-
peal, we affirmed a defense verdict on his excessive force
claim. However, we remanded because the court's instruction
had permitted the jury to find probable cause to arrest on the
basis of words that we held as a matter of !aw did not consti-
tute fighting words. See Gulliford v. Pierce County, 136 F.3d
1345 (9th Cir. 1998)(Gulliford J)(stating the relevant facts). At
the conclusion of the second trial, the jury again returned a ver-
dict for the defendants. Gulliford's motion for a directed
verdict was denied.
Gulliford contends that Instruction No. 16 permitted the
jury to find that his statements to the deputies were fighting
words and therefore not protected by the First Amendment.
Gulliford I held that the words spoken by him as a matter of
law were not fighting words. 136 F.3d at 1350. "[I]fa jury in-
Fy
Appendix “C”
struction is erroneous, we will reverse the judgment unless the
error is more probably than not harmless." /d. (quoting Chu-
. man v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). Because the
jury may have based its verdict on Gulliford's words alone, as
Instruction No. 16 permitted, we cannot say that the error was
more probably than not harmless and will reverse. See
Chuman, 76 F.3d at 295.
Gulliford further contends that the court erred in formu-
lating Instruction No. 10, which allowed the jury to find pro-
bable cause to arrest Gulliford for failure to disperse, an of-
fense under WASH. REV. CODE § 9A.84.020. At the first
trial, the district court instructed the jury that they should de-
termine whether Thrash had probable cause to arrest for ob-
structing, and they "should not consider whether there was pro-
bable cause to arrest fe other crimes." Gulliford argues that
under the law of the case doctrine, the district court at the se-
cond trial should not have allowed the jury to find probable
cause roe on crimes other than obstructing.
\ “
-3-
Appendix “C”
A district court's decision whether to apply the law of
~ the case doctrine is reviewed for abuse of discretion. See Rebel
Oil Co. v. Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th Cir.
1998). Generally, the law of the case doctrine precludes the
reconsideration of issues already decided by an appellate court.
See United States v. Hughes Aircraft Co., 2001 WL 277805
(9th Cir. 2001). It has also been used as a rule of comity for
decisions made by trial courts. See United States v. Estrada-
Lucas, 651 F.2d 1261, 1264-1265 (9th Cir. 1980). Absent the
exceptions noted in Thomas v. Bible, 983 F.2d 152, 155 (9th
Cir. 1993),' the second trial judge's failure to follow the law of
the case constitutes an abuse of discretion. See United States
v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). Thrash does
not justify the change in instructions by alleging any of these
exceptions. We therefore find that the district judge in the
\
' A district court is not bound »y a prior district court decision in
the case where “1) the first decision was clearly erroneous; 2) an
intervening change in the law-has occurred; 3) the evidence on remand
is substantially different; 4) other changed circumstances exist; or 5) a
manifest injustice would otherwise result.”
wh
Appendix “C”
second trial abused his discretion by formulating jury
instructions in violation of the law of the case.
Thrash claims that the first district court's instruction
incorporated failure to disperse. In other words, Thrash argues
the jury in the first trial could have found that Gulliford
committed the crime of obstruction by committing the failure
to disperse achat In reviewing the trial transcript, however,
we find no indication that the district judge incorporated the
failure to disperse crime in the instruction. While Thrash did
ask for separate instructions on failure to disperse and other
crimes, the district judge responded that such instructions
would be counterproductive and a smoke screen for the real
issues in the case. It follows from our determination that the
district court at the second trial violated the law of the case.
and that ap properly instructed jury should have been restricted
to finding probable cause based only on obstruction.
To determine whether Gulliford was entitled to a direct-
ed verdict, we must decide whether a jury could reasonably
-5-
Appendix “C”
find that Thrash had probable cause to arrest Gulliford for ob-
struction. Thrash argues that Gulliford committed the obstruc-
tion offense by speaking words constituting an incitement to
riot, an incitement to breach the peace, and a threat.
As to incitement to riot, it is a separate offense, not a
theory of obstruction. It is properly charged under WASH.
REV. CODE § 9A.84.010: "A person is guilty of the crime of
riot if, acting with three or more other persons, he knowingly
and unlawfully uses or threatens to use force, or in any way
participates in the use of such force, against any other person
or against property." There is no evidence that Gulliford used
or threatened to use force or participated in the use of force.
As to incitement to breach the peace, it is the essence of "fight-
ing words." See R.A.V.-v. City of St. Paul, Minnesota, 505
U.S. 377, 413 (1992)( White, J., concurring )(quoting Chaplin-
sky v. New Hampshire, 315 U.S. 568, 572 (1942): "by their
very utterance, [fighting words] inflict vials or tend to incite
an immediate breach of the peace.") Gulliford I holds that as
=.
Appendix “C”
a matter of law, Gulliford's words did not constitute fighting
words. 136 F.3d at 1350. Hence, no reasonable and properly
instructed jury could determine that Gulliford's words consti-
tuted an incitement to breach the peace as a theory of obstruc-
tion.
Finally, as to threats, Thrash presented no evidence that
Gulliford's words were threats constituting the obstruction
crime. To fall outside of First Amendment protection, a state-
ment must be a "true threat,” meaning that "a reasonable per-
son would foresee that the statement would be interpreted by
those to whom the maker communicates as a serious expres-
sion of intent to harm or assault." See Lovell v. Poway Unified
School Dist., 90 F.3d 367, 372 (9th Cir. 1996)(quoting United
States v. Orozco-Santilian, 903 F.2d 1262 (9th Cir. 1990)).
Thrash offers only Gulliford's words: "Then why don't you
hop on the ferry, hop on the ferry and go back." Even viewing
the words in their relevant context, no reasonable jury could
find these words to be a true threat.
Me
Appendix “C”
Because the jury could not return a verdict on the basis
of Gulliford's words, and defendants have presented no viable
basis to support a finding of probable cause to arrest Gulliford,
the motion for directed verdict should have been granted.
Accordingly, we REVERSE the judgment and
REMAND for trial on damages.
REVERSED AND REMANDED.
Gulliford v. Trash. No. 00-35005
Fisher, Circuit Judge. dissenting:
I respectfully dissent from the majority's holding that
Jury Instruction No. 10, on failure to disperse, violated the law
of the case and was an abuse of discretion.
The district court, in Gulliford's first trial, never ruled
that the jury could not consider failure to disperse as a ground
for probable cause to arrest. To the contrary, the court stated
that there was a material issue of fact regarding whether Thrash
had probable aia to arrest Gullifford based on failure to dis-
perse and allowed both iay and expert testimony on the issue
-8-
Appendix “C”
of failure to disperse. Instead of specifically instructing the
jury on failure to disperse, however, the court provided only a
more general obstruction instruction. ! When Deputy Thrash
requested a specific jury instruction on failure to disperse, the
court indicated that failure to disperse was arguable under the
more general obstruction instruction, stating: "Almost all of
the theories that have been discussed this morning in this brief
discussion are in these jury instructions. I have put them in
different ways, obviously, than counsel Suggested, but a great
deal of what you have urged here by way of exception is en-
rely atguable under the jury instructions." Thus, although the
court did not give a specific failure to disperse instruction in
the first trial, the jury was permitted to consider failure to dis-
perse as a means of committing obstruction. I do not agree
with the majority's assertion that the district court was referring
' The obstruction instruction, in the first trial, read: “A person
commits a crime of obstructing a public servant when he knowingly
hinders, delays, or obstructs any public servant in the discharge of the
public servant’s official powers or duties.
-9-
Appendix “C”
to failure to disperse when he remarked about instructions that
would have been counterproductive or a smokescreen.
Given that the court, in the first trial, allowed the jury to
consider failure to disperse under the obstruction instruction,
the law of the case did not prevent the court, in the second trial,
from instructing the jury on failure to disperse. Accordingly,
its decision to give such an instruction did not conutinate an
abuse of discretion.
Although probable cause to arrest could properly have
been found based on Gulliford's failure to disperse. I agree that
Instruction Number 16 improperly allowed the jury to find pro-
bable cause to arrested based on words that did not, as a matter
of law, constitute fighting words. I would therefore remand
the case for consideration before a properly instructed jury.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT GULLIFORD, _ )
) NO. 00-35005
Plaintiff-Appellee, )
) D.C. No.
) CV-94-05658-FDB
v. )
) ORDER
PAUL THRASH, )
)
)
Defendant-Appellee.
)
BEFORE: B. FLETCHER and FISHER. Circuit
Judges, and SCHWARZER..' Senior
District Judge
Judge Fletcher and Judge Schwarzer vote to deny
appellee's petition for rehearing; Judge Fisher votes to grant
the petition for rehearing. Judge Fletcher and Fisher vote to
reject the petition for rehearing en banc and Judge Schwarzer
so recommends.
The full court has been advised of the suggestion for
' The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting by
designation.
ats
Appendix “D”
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R.App.P.35.
The petition for rehearing is DENIED and the
suggestion for rehearing en banc is REJECTED.
EN
Appendix “D”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD. ) Docket No.
) C94-5658RJB
Plaintiff, )
) ORDER DENYING
v. ) PLAINTIFF'S
| ) MOTION FOR
PAUL THRASH, TERRILL ) PARTIAL SUMMARY
LARSON, and P. ) JUDGMENT
DONNELLY. )
individually. )
)
Defendants. )
THIS MATTER comes before the court on plaintiff's Mo-
tion for Partial Summary Judgment. The court has consid-
ered the pleadings and exhibits (including a videotape) filed
in support and opposition, and file herein.
RCW 9A.76.020(1) states in part:
(1) A person is guilty of obstructing a law enforce-
ment officer if the person wilfully hinders, delays. or
obstructs any law enforcement officer in the discharge
_-1-
Appendix “E”
of his official powers or duties.
Plaintiff argues that his acts did not hinder, delay or ob-
struct the deputies in their duties. Plaintiff argues that de-
fendants cannot point to anything specific that shows how
they were obstructed in carrying out their duties. Plaintiff
argues that it takes more than speech to convict a person for
obstructing and plaintiff did not act in this situation.
Defendants argue that in light of the events that happened
that evening an officer could reasonably believe that plain-
tiffs statement and act of remaining around the fire were an
attempt to hinder, delay, or obstruct the deputies in the dis-
charge of their official duties. Defendants argue that the dep-
uties did not complete their official duties in assisting the .
fire department in extinguishing the fire, arresting the indivi-
dual who allegedly threatened the fire fighter, and dispersing
the crowd and that plaintiff's conduct of remaining at the
foc acoumpualed with his statement would lead a reasonable
officer to believe that plaintiff was attempting to obstruct the
= %
Appendix “E”
deputies.
In State v. Lalonde, 35 Wash. App. 54, 61 (1983), the
Court of Appeals agreed with the trial judge that the defend-
ant’s offense of obstructing a public’servant did not arise
from his speech, but from the acts which accompanied his
words.
Viewing the facts in light most favorable to the defend-
ants, plaintiffs conduct of remaining at the scene in addition
to the statement he made to the deputies creates a issue of
material fact regarding whether the officers had probable
cause to arrest plaintiff for obstruction of a public servant.
Therefore, the court should deny plaintiff's motion in this
issue.
RCW 9A.76.180 states in part:
A
-3-
Appendix “E”
(1) A person is guilty of intimidating a public servant
if, by use of a threat, he attempts to influence a public
servant's vote, opinion, decision, or other official
action as a public servant. . .
RCW 9A.46.020 states in part:
(1) A person is guilty of harassment if: (a) Without
lawful authority, the person knowingly threatens: (i)
To cause bodily injury in the future to the person
threatened or to any other person:. . .and (b) the
person by words or conduct places the person
threatened in reasonable fear that the threat will be
carried
out...
RCW 9A.84.010 states in part:
(1) A person is guilty of the crime of riot if, acting
with three or more persons, he knowingly and
unlawfully uses or threatens to use force. . .
RCW 9A.76.180(3)(a) provides the definition of threat as
used in RCW 9A.76.180 as, “. . . to communicate, directly or
indirectly, the intent immediately to use force against any
person who is present at the time; or threats as defined in
RCW 9A.04.110"
RCW 9A.04.110(25) defines threats in part as:
To communicate, directly or indirectly, the intent: (a)
nh
Appendix “E”
To cause bodily injury in the future to the person
threatened or any other person: or (b) To cause
physical damage to the property of a person other
than the actor: or . . . (j) To do any other act which is
intended to harm substantially the person threatened
or another with respect to his health, safety, business.
financial condition. or personal relationships.
Plaintiff argues that the record contains no evidence of a
threat being made by plaintiff on the night in question and
there was no threat made in an attempt to influence a public
servant 's actions or create a reasonable fear of violence.
Plaintiff argues that plaintiffs statement could not be con-
strued as amounting to riot nor can it be shown that plaintiff
was acting in concert with three or more other persons.
Defendants argue that a reasonable officer in the position
of the defendants would have believed that plaintiff s state-
ment was a threat of force in violation of 9A.76.180. that the
statement created a reasonable fear in the deputies of vio-
lence by a threat of violence, and that the statement was a
threat in violation of 9A.84.010. Defendants argue that
plaintiff's statement was more of a threat when combined
wa
Appendix “E”
with the fact that plaintiff remained at the scene of the fire
which was seen as an act of defiance.
Alleged threats should be considered in light of their
entire factual context, including the surrounding events and
reaction of the listeners. United States v. Orozco-Santillan,
903 F.2d 1262, 1265 (9th Cir. 1990). “The fact that a threat
is subtle does not make it less of a threat.” Jd.
“Whether a particular statement may properly be con-
sidered to be a threat is governed by an objective standard-
whether a reasonable person would foresee that the state-
ment would be interpreted by those to whom the maker com-
municates the statement as a serious expression of intent to
harm or assault.” /d.
In light most favorable to the nonmoving party, and con-
sidering plaintiff's statement in its entire factual context,
there is a genuine issue of material fact regarding whether a
reasonable person would foresee that plaintiff's statements
would be interpreted by those whom the maker communi-
-%
Appendix “E”
cated the statement as a serious expression of intent to harm.
Therefore, there are genuine issues of material fact regarding
whether plaintiffs statement was a threat towards the dep-
uties and whether the defendants had probable cause to ar-
rest plaintiff for violation of RCW 9A.76.180, RCW
9A.46.020 and RCW 9A.84.010. The court should deny
plaintiff's motion in regards to this issue.
b. Protected Speech
Plaintiff also argues that his speech was protected by the
First Amendment and therefore he cannot be arrested for
these crimes.
Defendants argue that plaintiff's statement was not pro-
tected speech. Defendants argue that the court has previously
held that there are genuine issues of material fact whether
plaintiff's words were likely to succeed in fomenting an
attack on a third party.
“The first amendment protects a significant amount of
verbal criticism and challenge directed at police officers.”
3
Appendix “E”
Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1378
(9th Cir. 1990). However, “fighting words” are excluded
from first amendment protection. Seattle v. Camby, 104
Wash. 2d 49, 52 (1985). The test used to determine whether
speech contains fighting words includes three steps: 1) the
words must be directed at a particular person or group of
persons. 2) the words must be “those personally abusive epi-
thets which, when addressed to the ordinary citizen, are. as a
matter of common knowledge, inherently likely to provoke
violent reaction, and 3) look at the words in the context or
the situation in which they were made. /d, at 53.
Where the speaker is likely to succeed in fomenting an
attack by or on a third party, regardless of actual site his
minatory words fall outside the first amendment. United
States v. Hoff, 22 F.3d 222, 224 (9th Cir. 1994). Also, “A
‘true’ threat, where a reasonable person would foresee that
the listener will believe he will be subjected to physical
violence upon his person, is unprotected by the first amend-
-8-
Appendix “E
ss
ment.” United States v. Orozco-Santillan, 903 F.2d 1262.
1265-66 (9th Cir. 1990).
Considering the facts and circumstances in which the
statement was made and the evidence of its content, there are
genuine issues of material fact regarding whether plaintiff
was likely to succeed in fomenting an attack on the deputies
and whether plaintiffs statement to the deputies was a
threat. Therefore there are genuine issues of material fact
regarding whether plaintiff's speech was protected by the
first amendment. The court should deny plaintiff's motion
on that issue.
+. Failure to Disburse (RCW 9A.84.020)
There is also a material issue of fact regarding whether
defendants had probable cause for arresting plaintiff based
on RCW 9A.84.020. See. Part II. A. above.
Oe ee ere
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, Docket No.
C94-5658RJB
Plaintiff,
Tacoma,
V. Washington
)
)
)
)
)
)
PAUL THRASH, TERRILL )
LARSON, and P. )
DONNELLY, )
individually, )
)
)
Defendants.
TRANSCRIPT OF EXCEPTIONS TO INSTRUCTIONS
BEFORE THE HONORABLE ROBERT J. BRYAN
UNITED STATES DISTRICT JUDGE, and a Jury
MS. FITZER: Good morning, Your Honor. Bertha Fit-
zer, for the plaintiff, taking exceptions to the jury instruc-
tions.
I would start with the court's jury instructions, and the
first exception that we would take would be to the claims
instruction as you have drafted it, Your Honor. It does not
ihe
Appendix “F”
———
include a claim for a specific First Amendment violation,
and as we indicated in our trial brief and indiscussions previ-
ously with the court, we believe that both the first Amend-
ment and the Fourth Amendment are implicated and that a
violation of either would give rise to a cause of action.
THE COURT: The First Amendment is implicated, as
is reflected in the jury instructions. It is my judgment that
that is not a separate claim but is a matter of balancing, as is
reflected in the jury instructions, the right to speak. It’s like
the question of yelling “fire” in a crowded theater. so to
speak. I think the jury has to balance between that right to
speak and the right to speak improperly as obstructing.
But anyway. go ahead.
* * * * *
MS. FITZER: For the record, we would object to the
verdict form that does not reflect a First Amendment claim,
also.
Thank you.
e, »
Appendix “F”
MR. HAMILTON: Did the court want us to also take
exceptions to instructions not given?
THE COURT: Yes.
Do you have further exceptions to instructions not given? |
MS. FITZER: No, Your Honor. I incorporated the
ones that we do.
THE COURT: I would like you to comment on the
right to resist instruction and on the damage instruction that
she commented on, counsel.
MR. HAMILTON: First of all on the -- | will go to
that first, then, Your Honor.
Also, our final third supplemental jury instruction dealing
with the right to disburse [sic], at least an order to disburse
[sic]. Plaintiff has had his expert testify that there was no
right to order the crowd to disburse [sic]. He's argued that,
in essence, to the jury already through his questions. The
court, as I understood on Friday, disagreed with that. and yet
“
-3J-
Appendix “F”
the seed is planted in the jury, the question of whether the
officers even had a right to order a disbursal [sic]. There-
fore, if plaintiff obstructed that order of disbursal [sic], that
would be our ground for an arrest. But if he's allowed to
argue to the jury that there was no right to order disbursal
[sic]. then we can't even get to our -- one of our grounds for
arresting plaintiff. So we would object to the failure to give
that instruction as well.
Thank you. Your Honor.
THE COURT: Thank you, Mr. Hamilton.
Almost all of the theories that have been discussed this
morning in this brief discussion are in these jury
instructions. | have put them in in different ways, obviously,
than counsel suggested, but a great deal of what you have
urged here by way of exception is entirely arguable under
the jury instructions.
S, OTe
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
DONNELLY,
individually,
AT TACOMA
HERBERT GULLIFORD., ) Docket No.
) C94-5658RJB
Plaintiff, )
) ORDER DENYING
v. ) PLAINTIFF'S
) MOTION FOR NEW
PAUL THRASH, TERRILL ) TRIAL/JINOV
LARSON, and P. )
)
)
)
)
Defendants.
[HIS MATTER comes before the court on plaintiff's
Motion for New Trial or Judgment Notwithstanding the
Verdict. The court has considered the records and files
herein and the evidence adduced at trial, as well as the
memoranda filed in support of and in opposition to the
motuon. The issues raised by plaintiff were fully discussed
and considered at trial, and oral argument would not be of
assistance to the court in resolving the motion.
The court is satisfied that under the totality of the
ie
Appendix “G”
evidence presented, the instructions on the law were
appropriate and that the decision of the jury was within the
evidence and the law, and that the evidence considered by
the jury was appropriate and within the rules of evidence.
Accordingly, it is now
ORDERED that Plaintiff's Motion for New Trial/JNOV
is DENIED.
The Clerk of the Court is instructed to send uncertified
copies of the Order to all counsel of record and to any party
appearing pro se at said party's last known address.
DATED this 3 day of May. 1996.
/s/ Robert J. Bryan
Robert J. Bryan
United States District Judge
2.
Appendix “G”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Case No.
) C94-5658(RJB)FDB
Plaintiff, )
) COURT'S
v. ) INSTRUCTIONS TO
) THE JURY
PAUL THRASH. )
)
)
Defendant.
DATED
FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE
x
Appendix “H”
INSTRUCTION NO. 10
On plaintiff's wrongful arrest claim, the plaintiff has
the burden of proving each of the following propositions
with respect to his claim of unlawful arrest:
l.
2)
od
The acts of Defendant Thrash were intentional:
Defendant Thrash acted under color of law:
The acts of Defendant Thrash deprived the plaintiff of
rights protected by the Constitution of the United
States by arresting the plaintiff without probable
cause.
The acts of Defendant Thrash were a proximate cause
of the plaintiff's injuries.
If you find from your consideration of all of the evidence
that the plaintiff has proved each of these propositions, your
verdict should be for the plaintiff on this claim. On the other
hand, if any of these propositions has not been proved. your
verdict should be for the defendant on this claim.
You must determine whether Defendant Thrash had
probable cause to arrest the plaintiff for a crime.
A person commits the crime of obstructing a public
¢,
Appendix “H™
servant when he knowingly hinders, delays, or obstructs any
public servant in the discharge of the public servant's official
powers or duties.
A person commits the crime of failure to disperse when
he or she congregates with a group of three or more persons
and there are acts of conduct within that group which create
a substantial risk of causing injury to any person, or
substantial harm to property and he or she refuses or fails to
disperse when ordered to do so by a peace officer or other
public servant engaged in enforcing the law.
_
-3-
Appendix “H”
INSTRUCTION NO. 15
The plaintiff claims the defendant arrested him in retalia-
tion for exercising his First Amendment constitutional right
to free speech.
The right to free speech is not absolute at all times and
under all circumstances, and an illegal course of conduct is
not protected because the conduct was in part carried out by
language in contrast to direct action. Hence where a speaker |
OnE Tey See ae ee ee
is likely to succeed in inciting an attack by or on a third
party or to incite an immediate breach of the peace, regard-
less of actual success, his words fall outside the First
Amendment. Similarly, a true threat is also unprotected by
the First Amendment.
-4-
Appendix “H”
INSTRUCTION NO. 16
The First Amendment protects the right of citizens to
verbally oppose and/or challenge police action without risk-
ing arrest so long as that challenge does not knowingly pre-
sent a threat or fighting words which hinder, delay or ob-
struct any public servant in the discharge of the public ser-
vant's official powers or duties.
The First Amendment protects verbal criticism, challeng-
es. and profanity directed at police officers unless the speech
is shown likely to produce a clear and present danger of a
substantive evil that rises far above public inconvenience.
annoyance or unrest.
xs
Appendix “H™
INSTRUCTION NO. 17
An arrest made with probable cause to believe plaintiff
had committed a crime does not violate the First
Amendment.
-6-
Appendix “H™
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD. ) Docket No.
) C94-5658RJB
Plaintiff, )
) Tacoma,
V. ) Washington
) March 18 and 19,
PAUL THRASH, TERRILL ) 1996
LARSON, and P. )
DONNELLY, )
individually, )
)
Defendants. )
VOLUME I
TRANSCRIPT OF EXCERPTS FROM TRIAL
BEFORE THE HONORABLE ROBERT J. BRYAN
UNITED STATES DISTRICT JUDGE. and a Jury
* * * * &
PATRICK P. DONNELLY, ONE OF THE
DEFENDATS, SWORN OR AFFIRMED
Q. Well, tell us about your role in terms of what you did on
the night of September 6th, 1992, when you got to the beach.
What did you do after you got out of your vehicle?
_™
Appendix “I”
A. Deputy Larson was walking back from the fire that was
on the sand spit. and I joined him, and we started walking
towards the middle fire when we heard Officer Thrash say,
"Over here." And we went to the middle fire where we -- I
heard. I believe it was, Deputy Larson say "leave" at three
different een No one left. and I didn't hear the portion of
"J.D.. you're under arrest." I just saw Deputy Thrash go be-
hind a guy in white shorts and start to put the cuffs on him.
and I heard people say. "That's not J.D.." so he was turned
loose. And I heard Officer Thrash say, "J.D., come out."
something to that effect. And people said, "J.D. isn't here."
After that I heard Officer Thrash tell everybody. "The party's
over,” and _— sure the sequence. I believe he said, "I'm
tired of this,” with, as Mr. Hamilton put it, bathroom, and --
Q. An expletive?
A. Yes.
Q. Okay. Starting with $?
A. Yes.
2.
Appendix “I”
Q. Okay.
A. And he starts to say that this is a waste of taxpayer's
money, or something to that effect, and he gets cut off in
mid sentence -- excuse me. I'm getting this out of context.
out of order.
Q. Uh-huh.
A. He said. "The firemen came down to put a fire out and all
they got was a bunch of” --
Q. Expletive.
A. Yes, And then he said, "This is a waste of government
taxpayer's money." and he got cut off in med sentence by
Mr. Gulliford saying that “Why don’t you get the *F’ off the
island. Why don’t you hop on the ferry, hop on the ferry
and go back.”
Q. What things were you describing then that is not on the
tape that you heard?
A. Before contact was made with that group. I heard
_
-)-
Appendix “I”
somebody, I assumed it was Deputy Thrash, say, “Leave the
park” three times.
Q. And you put that in your report?
A. Yes.
Q. And you wrote that report, that was -- did you write a --
how long after this event did you write the report?
A. Approximately three-and-a-half hours.
-4-
Appendix “I”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Docket No.
) C94-5658RJB
Plaintiff, )
) Tacoma,
V. ) Washington
) March 20, 21,
PAUL THRASH, TERRILL ) 25,26, and
LARSON. and P. ) 27,1996
DONNELLY, )
individually, )
)
Defendants. )
VOLUME II
TRANSCRIPT OF EXCERPTS FROM TRIAL
BEFORE THE HONORABLE ROBERT J. BRYAN
UNITED STATES DISTRICT JUDGE, and a Jury
* * * * *
GARY PETERSON, PLAINTIFF’S WITNESS, SWORN
OR AFFIRMED
Q. Before the other deputies were called over to your group,
Deputy Thrash came up and addressed your group, didn’t
he?
she
Appendix “J”
A. I don’t recall him addressing the group, no.
Q. Why don’t you look at page 79 of your deposition, line 3.
A. 79?
Q. Yes, line 3.
Question -- were you asked this question and did you
give this answer:
“Do you remember a deputy, Deputy Thrash, coming and
talking to you before he called over the other deputies and
said, ‘They are over here. Sam. They are over here’; do you
remember something like that?
“Answer: | remember somebody saying something, but
I’m not sure exactly what was said.”
Did you give that answer to that question?
A. Yes, I did.
Q. Does that refresh your recollection? Do you remember
today, or do you not have a recollection anymore?
A. Not the greatest recollection, no.
Q. Do you remember that, not the greatest recollection, but
s,
Appendix “J”
ee Se
do you remember it now at all?
A. They were going all directions, whether it was Deputy
Thrash or who, I’m not sure.
Q. But you recall some deputy addressing the crowd before
he called over the other deputies?
A. I believe so.
Q. Okay. And you didn’t hear what that conversation was.
apparently?
A. | certainly don’t remember it. no.
Q. So if there was a conversation regarding disbursing [sic]
and leaving, you wouldn't have heard it?
A. There was no disbursal [sic].
Q. I know there was no disbursal [sic], but as to whether
there was a request to disburse [sic], you didn’t hear the
conversation, you --
A. They --
Q. Let me finish.
You don’t know if there was that conversation or not. do
~
->-
Appendix “J”
you?
A. I heard them say something, but there was nothing about
disbursing [sic].
Q. Well, if you didn’t hear what they said, you don’t know if
it was disbursing or not, do you?
Mr. Deutscher: Your Honor, he answered the
question.
MR. HAMILTON: I can rephrase the question.
THE COURT: You are arguing with the witness.
Q. (By Mr. Hamilton) What do you recall about the
conversation? I thought -- let me strike that.
Do you know what was said in that conversation?
A. I don’t remember everything that was said, no.
Q. And you don’t know whether there was anything about
disbursing [sic] or not because you didn’t hear it?
Mr. Deutscher: Asked and answered, Your Honor.
THE COURT: You may answer.
A. I would have known if he said disbursing [sic}. There was
-4-
Appendix “J”
no disbursal [sic], asking for disbursal [sic].
Q. So you did hear all the conversation?
A. No, I did not hear all the conversation.
-
Appendix “J”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD. ) Docket No.
) C94-5658RJB
Plaintiff, )
) Tacoma,
V. ) Washington
) April 1, 2, 3,
PAUL THRASH. TERRILL ) and 4, 1996
LARSON. and P. )
DONNELLY, )
individually, )
)
Defendants. )
VOLUME IV
TRANSCRIPT OF EXCERPTS FROM TRIAL
BEFORE THE HONORABLE ROBERT J. BRYAN
UNITED STATES DISTRICT JUDGE, and a Jury
SHELLEY WIGGINS, DEFENDANTS’ WITNESS.
SWORN OR AFFIRMED.
Q. (By Mr. Hamilton) Let me draw your attention to page
55, line 18.
A. Yes.
/.
Appendix “K”
Q. “Do you recall that before he called the deputy over, he
talked to you about, you know, this is an illegal fire, please
disburse [sic]; do you remember that?
‘Answer: I remember that, yes.”
Do you remember being asked those questions and giving
those answers at that time?
A. Yes, 1 do.
MARY SMITH. DEFENDANT'S WITNESS, SWORN
OR AFFIRMED
Q. Did you at any time hear a statement of. “I’m tired of this
crowd. people, disburse [sic].”” Do you remember hearing
anything like that?
A. Yes. "
Q. When was that in relation to what you hear on the tape,
“The party's over, people”? When was that said?
A. The disburse [sic]?
9)
Appendix “K”
Q. Yes.
A. After he -- after he said the party was over.
Q. Okay.
A. I believe.
Q. As far as what you heard on the tape -- have you listened
to the tape?
A. Not recently.
Q. Okay. Assuming on the tape there’s a statement of “I’m
tired of this. The party's over, people,” do you recall -- let
me back up for a minute.
Do you recall Mr. Peterson being contacted by the
deputies? ;
A. Right.
Q. Prior to that contact, do you recall any of the deputies
making a statement to the crowd?
A. To disburse [sic]?
Q. Yes..
A. Boy, I think he did.
~
-)-
Appendix “K”
Q. What word did you hear him say?
A. Disburse [sic].
Q. And after he says “disburse” [sic] to the crowd, is that --
when did the contact with Mr. Peterson happen?
A. I think after he said that they just kind of walked up and
grabbed Gary right away.
JOHN J. MITCHELL. DEFENDANT'S WITNESS,
SWORN OR AFFIRMED
Q. When they pulled up and came to a stop, can you tell us
what you observed or heard?
A. Well, I saw them -- I saw all the vehicles pull into the
parking lot, and at that point it was pretty dark right down
there so I couldn't see very much but I could hear a lot. And
the first thing I remember, and I remember it very vividly
because it was so different from my experience three weeks
before when the sheriff's deputies came out, was I heard a
aif.
Appendix “K”
, i sine sneiatiiiiniaaiaiiaiy
deputy -- I found out later it was Deputy Thrash -- shout
very loudly, words to the effect, “Go home, people. The
party's over,” very, very loudly.
Q. Where in time did this occur from the time the deputy
pulled up?
A. I would say it was within seconds of getting out of the
car. That was the first sound that I heard. Everything was
very quiet when the police cars pulled up, and the first thing
I heard was this, was this loud command from the deputy for
everybody to break up.
Q. And what happened after that?
A. Well, nobody left. And, again, I couldn’t see anything. |
heard the deputy say several more times, “Go home. The
party’s over.” And then everyone seemed -- the deputies
seemed to converge over by the fire area where I couldn’t
see, so I couldn’t see anything then, but I heard conversa-
tions, arguing, many voices speaking at the same time.
Q. Were you aware at any time -- strike that.
whe
Appendix “K”
What, if anything, did you observe of a struggle with Mr.
Gulliford?
A. I really couldn't see any of that, I could hear just mooted
sounds, and there were many voices, but I could not see
anything.
Q. Did you -- what, if anything, did you see of the arrest of
Curt Bray?
A. That’s different. I saw that. I heard Deputy -- I believe it
was Deputy Thrash, or it could have been one of the others,
order Curt Bray to leave. to go home, like he ordered
everyone else to leave, but they weren’t following his
command. And he ordered Bray to leave. Bray was the one
who had the videotape, video camera on his shoulder. And
he was very visible to me because the camera had a light on
it, so. He had a beacon attached so I could see him wherever
he went. So I could see him back up across the parking lot,
and I heard the deputy tell him to go home, and he didn’t go
home. He stayed right there
-6-
Appendix “K”
PAUL D. THRASH, ONE OF THE DEFENDANTS,
SWORN OR AFFIRMED
Q. Where in line was your car. as far as the cars pulling up?
A. I think I was probably fourth.
Q. Does that include the fire district vehicle?
A. Yes.
Q. You said you went -- which group did you go to first?
A. | went to the fire that was to the south. The southernmost
fire on that part of the beach.
Q. On your way to that fire, did you have any communica-
tion with the fire in the middle where the incident you later
learned actually occurred?
A. Yes, I did.
Q. What was that contact?
A. As soon as I exited my vehicle, | started telling people to
leave, to disburse [sic].
x,
Appendix “K”
Q. Do you recall what words you used?
A. “Leave. Leave, people. The party’s over. Disburse [sic].
Go home.” A few things like that.
Q. How long does it take you to have contact with this first
fire and come back?
A. Seconds. Ten, fifteen seconds.
Q. What was the contact with this other fire? Can you de-
scribe that?
A. It was a family of two with their kids, and they just had a -
small fire wlth a grill over it, and I told them, “You've got to
put the fire out because of the burn ban,” and they said, “Oh,
no problem.” And I mentioned what we were there for. They
said, “Well. that’s the other party over there. Nobody’s left.
Go get them.” I said, “Okay. Thanks.”
Q. After they told you that, what did you do?
A. That's when I walked back quickly to where the
firefighters were and called over Deputy Larson.
Q. Prior to calling over Deputy Larson, do you have any
-8-
Appendix “K”
contact again with that group?
A. Same thing. People on the periphery of the crowd come
out asking what was going on, and as I walked past them
quickly, I would say, “It’s time to go home. Leave. Disburse
[sic]. The party’s over.” Just a passing conversational tone as
Im walking back to the firefighters.
Q. At what time do you learn that there was someone there
videotaping various things?
A. Oh. I knew immediately.
(Q. How did you know?
A. I could see him.
Q. At what time did it appear that he was pointing his
camera in your direction?
_A. Well, he was kind of pointing the camera in all of our
directions at one time or another. Initially [I think it was not
pointed at me, but the time I can think of that it was the most
pointed at me was when I walked back and contacted the
firefighters.
-9.
Appendix “K”
-10-
Appendix “K”
ee ee
ra as re erecemenee- ese Ee
NO. 00-35005
IN THE UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT GULLIFORD, Plaintiff/Appellant
V.
PAUL THRASH. Defendant/Appellee
ro from the
United States District Court
for the Western District
of Washington
No. C94-05658 (RJB) FDB
BRIEF OF APPELLEES
Because the prevailing defendant did not cross appeal that
supposed ruling in the first trial. such is claimed to be “the
law of the case” which somehow bound Judge Burgess at _
retrial.’ Id. at 17.
’ Plaintiff at retrial never objected to the "failure to dis-
perse” instruction on the ground it should not be given. CR
xs
Appendix “L”
301. Inst. # 10; CR 316 at 20-21, CR 317 at 7-8, and cannot
now 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 (Sth Cir. 1986):
Siegfried v. Kansas City Star Co.. 298 F.2d 1, 7 (8th Cir.).
cert denied. 369 U.S. 819 (1962). Hence, the issue is not
properly before this Court on appeal. See Benigni v. Hemet.
879 F.2d 473. 475-76 (9th Cir. 1988).
Third. even if the facts were different and Judge Bryan
had ruled that plaintiff's failure to disperse and threat to
incite the crowd to violence could not be considered, this
Court has recognized "the law of the case rule does not bind
a court as absolutely as res judicata. and should not be ap-
plied “‘woodenly” when doing so would be inconsistent with
‘considerations of substantial justice’....". Moore, 682 F.2d
at 833-34. Hence, application of the "law of the case” doc-
trine is discretionary, United States v. Mills. 810 F.2d 907,
909 (9th Cir.). cert. denied, 484 U.S. 832, 108 S.Ct. 107, 98
L.Ed. 2d 67 (1987). and does not apply to decisions that are
"erroneous and would work a manifest injustice." Arizona
v. California, 460 U.S. 605, 618 n. 8, 75 L.Ed.2d 318. 103
Zs
Appendix “L”
S.Ct. 1382 (1983); United States v. Pend Oreille County
Public Utility Dist. No. 1, 135 F.3d 602, 608 (9th Cir. 1998);
In Re Rainbow Magazine. Inc., 77 F.3d 278, 281 (9th Cir.
1996). Indeed, plaintiff himself conceded at retrial that a
"trial court cannot grant the motion solely in reliance on the
[previous] holdings" but "must examine whatever materials
the defendant presents” and cannot rule in plaintiff's favor if
that evidence "demonstrates [a] factual dispute." CR 230 at
8. Here there was more than sufficient evidence in the first
trial, see e.g. CR 166 at 27-28, 138; CR 168 at 549; CR 169
at 620, 647-48, 677-78, 759-60; Ex. 12 at 4: Ex. 13 at 2: Ex.
14 at 2 -- as well as in the second, see citations to record in-
fra at 23-26 -- to support a jury in finding the crime of fail-
ure to disperse separate from plaintiffs words as well as that
his words were an unprotected "true threat" or "incite[ment
of] an attack by or on a third party" and part of plaintiff s
crime of obstructing an officer. See also CR 301, Inst. #’s
10, 15, 16.
~
-3-
Appendix “L”
nn
Plaintiff's "wooden" application of the law of the case is
founded on a decision that was never made, that if made
would have been "erroneous" and "would work a manifest
injustice."
» 6. 4. 6a
b. Instruction Number 16 Was Not Misleading Or
Prejudicial.
Plaintiff calls instruction number 16 -- that stated the
First Amendment does not protect the use of a “threat or
fighting words” (emphasis added) -- prejudicial because “un-
accompanied by this court’s holding that ‘the court has ruled
as a matter of law that Plaintiff's words were not fighting
words,’ again, gave the Defendant the opportunity to argue
that “hop on the ferry, hop on the envy and go back’ were |
fighting words which did hinder, delay or obstruct the public
servant in the discharge of the public servant's official duties
or powers.’ App. Br. at 19. However, "[w]hen an appellant
alleges an error in the formulation of the jury instructions,
-4-
Appendix “L”
the instructions are considered as a whole and an abuse of
_ discretion standard is applied to determine if they are mis-
leading or inadequate." Oglesby v. Southern Pac. Transp.
Co., 6 F.3d 603, 606 (9th Cir. 1993). See also Jones v.
United States, 527 U.S. 373. 144 L.Ed.2d 370. 119 S.Ct.
2090. 2103 (1999); Jenkins v. Union Pacific R. Co.. 22 F.3d
206, 210 (9th Cir. 1994): Oviate v. Pearce. 954 F.2d 1470.
1481 (9th Cir. 1992). This is because “{j]urors consider the
evidence and trial as a whole” and do not “dissect instruc-
ea as if the sentences were frogs.” Pressley v. Haeger,
977 F.2d 295, 298 (7th Cir. 1992). Here plaintiff cannot dis-
sect an isolated term from the rest of a trial in which no one
ever claimed “fighting words” were used and where the jury
was not mislead or plaintiff prejudiced.
“Each instruction must be considered in connection with
others of the series referring to the same subject," and
“[e]ven where a portion of the charge is erroneous, if the
point is explained and corrected in other parts of the charge
-5-
Appendix “L”
so that the jury will not be misled, the jury's verdict should
be affirmed.” Clarksville-Montgomery County Sch. Sys. v.
United States Gypsum Co., 925 F.2d 993, 1003-04 (6th Cir.
1991). Here no evidence was ever presented, no argument
ever made and no instruction ever implied that plaintiff s
words were grounds for arrest if they incited Deputy Thrash
to violence and therefore were “fighting words.” See Hous-
ton v. Hill, 482 U.S. 451, 463. 96 L.Ed.2d 398, 107 S.Ct.
2502 (1987) (“fighting words” have a “narrower application
in cases involving words addressed to a police officer.
because ‘a properly trained officer may reasonably be ex-
pected to ‘exercise a higher degree of restraint’ than the aver-
age citizen, and thus be less likely to respond belligerently to
‘fighting words.""); Smith, 93 Wn. App. at 48-49(“fighting
words” tend “to cause acts of violence by the person to
whom they are addressed”’). Rather, defendant’s evidence
and argument asserted only that probable cause to arrest ex-
isted for plaintiff's conduct in failing to disperse and for his
ithe
Appendix “L”
obstructing of the deputies by using the threat the hostile
- crowd (i.e. a “third party”) might attack the deputies. See
CR 325 at 4-18 and infra at 23-26. Similarly, the instruc-
tions nowhere stated that plaintiff could be arrested if he in-
cited the deputv to violence but only that the First Amend-
ment did not protect Gulliford from arrest if his “conduct”
gave probable cause for a “failure to disperse,” CR 301, Inst.
#'s 10, 15 & 17. or if his words constituted a “true threat” or
were “likely to succeed in inciting an attack by or on a third
party” so as to constitute “obstructing.” Id.. Inst. #s 10. 15
& 16. Indeed, instruction number 16 specifically advised
the jury that “[t]he First Amendment protects verbal criti-
cism, challenges, and profanity directed at police officers
unless the speech is shown likely to produce a clear and
present danger of substantive evil that rises far above public
inconvenience, annoyance or unrest.” Id., Inst. # 16 (empha-
SiS added). See also Hill. 482 U.S. at 461 citing Terminiello
v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895. 93 L.Ed. 113]
“3
Appendix “L”
(1949)(words protected “unless shown likely to produce a
clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or unrest.")
Even assuming somehow it was error not to instruct that
“fighting words” were absent here, such was not prejudicial
and decpitieed not ground for reversal. See Jenkins, ‘tm
error in the jury instructions does not require reversal if it is
more probable than not that the error was harmless.”) This
Court has recognized a “failure to give a proper instruction”
does “not prejudice the [party]” where “the evidence would
have supported a verdict for [the opponent] even with that
instruction.” See Benigni v. City of Hemet, 879 F.2d 473,
480 (9th Cir. 1988). See also Mockler v. Multomah Coun-
ty,140 F.3d 808 (9th Cir. 1998), quoting Caballero v. City of
Concord, 956 F.2d 204, 207 (9th Cir. 1992)(“error not harm-
less because ‘nothing about th{e] verdict indicate[d] that the
result would have been the same without the error.’”’) Here,
the overwhelming evidence of plaintiff s failure to disperse -
-8-
Appendix “L
99
- much less of obstructing by his threat and incitement of the
crowd to violence -- “would have supported a verdict for
_— Thrash] even with that instruction” that “fighting
words” were absent here.
Numerous witnesses at the scene testified they heard
multiple orders to disperse before Deputy Thrash ap-
proached the video camera and his orders were finally re-
corded. CR 314 at 15-16; CR 315 at 4-6, 11. 25-26: CR 321
at 12-14, 23-24, 29-30, 37; CR 322 at 11-12: CR 324 at 11;
Ex. 12 at 4; Ex. 14 at 2. Further. when Deputy Thrash later
did come within range of the microphone and was recorded
as announcing that the “party is over,” the videographer
himself testified he thought the deputy was telling them
“[t]hat we should go home.” CR 318 at 52-53. Indeed. even
plaintiff at least admitted he heard the announcement that
the party was over but claimed he did not leave in response
to the deputy’s direction because “I didn’t have time.” CR
319 at 13. However, plaintiff also admitted he did have time
-9-
Appendix “L”
to “respond to his direction” by then interrupting the deputy
with the intent “to communicate to the deputies that they are
the ones that should leave ....” CR 319 at 13-17 (emphasis
added). See also CR 314 at 24. Hence there was substantial
evidence to show. both before and after plaintiff “said a
word.” he was violating RCW 9A.84.020 by failing to dis-
perse when so ordered. See Tatro v. Kervin, 41 F.3d 9. 18
(1st Cir. 1994)(where plaintiff was arrested when he said “I
can’t believe what is happening” after being ordered to leave
a party, failure to disperse and not the chilling of free speech
was the cause of his arrest); Mozzochi v. Borden, 959 F.2d |
1174, 1179-80 (2nd Cir. 1992)(claim of retaliation for
exercising free speech rejected where there was probable
cause to believe crime had been committed).
Such testimony also supports the conclusion plaintiffs
failure to disperse and communication that the deputies in-
stead should leave indicated by his words and inaction that
he sought to obstruct the officers in their lawful efforts to
-10-
Appendix “L”
disperse the crowd and arrest a felon and therefore also was
violating RCW 9A.76.020. See CR 319 at 17; Hill, 482
U.S. at 462 n. 11 ("a municipality constitutionally may pun-
ish an individual who chooses to stand near a police officer
and persistently attempt[s] to engage the officer in conversa-
tion while the officer is directing traffic" or who "run[s}
beside [an officer pursuing a felon] in a public street shout-
ing at the officer."); United States v. Brice, 926 F.2d 925.
9351 (9th Cir. 1991)(where citizen consistently refused to
comply with official directions and instead asked "why." his
arrest was upheld against First Amendment challenge be-
cause his conduct contained both speech and non-speech ele-
ments); State v. Lalonde, 35 Wn.App. 54, 61-62. 655 P.2d
421, rev. denied, 100 Wn. 2d 1014 (1983)(where scene was
noisy and confused and a crowd angry, the First Amendment
is not implicated by an arrest under RCW 9A.76.020 of a
person who attempts to talk to officers about arrest of an-
other party goer after being told to leave.)
«11.
Appendix “L”
Finally, the jury could find under the totality of the cir-
cumstances presented by the evidence that plaintiff had 1s-
sued a “true threat” or an “incitement to riot” as part of his
unlawful effort to obstruct the deputies in dispersing the
crowd and arresting a felon. See e.g. Melugin, 38 F.3d at
1484(a “true threat” exists where it is made “under such cir-
cumstances wherein a reasonable person would foresee that
the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression
of an intention to inflict bodily harm.” and such “is a ques-
tion of fact for the jury. not a question of law for the
court.”): Hoff, 22 F.3d 222. 224 (9th Cir. 1994)(Where an.
officer was "outnumbered. exposed, isolated and confronted
by a previously and increasingly uncooperative individual,”
that individual's refusal to leave a campsite and inducement
of a dog tethered to a tree to grow! at the officer was "[mJore
akin to the cocking of a trigger than to privileged speech" |
and like "the incitement of a mob to riot ..., thus fails to
ae.
Appendix “L
ss
reach the constitutional threshold.") Where the record is re-
plete with testimony that officials had been threatened that
very evening by memibers of this same crowd and that the si-
tuation was tense and there was concern for the deputies’
safety from the crowd when plaintiff called out from the
midst of that same crowd for the deputies instead to leave.
CR 314 at 7-9, 20-26; CR 315 at 36: CR 318 at 52-53: CR
321 at 14; CR 322 at 4-5, 16. 46; CR 323 at 5, 16-17, 73-74:
CR 324 at 16, where indeed plaintiff himself testified he
intended by his words to communicate to Deputy Thrash
that “if he was smart, he should leave,” CR 319 at 19-20, the
_ jury could properly determine whether plaintiff was ob-
structing the deputies either by threatening them or by incit-
ing the crowd to breach the peace. See Melugin, 38 F.3d at
1484 (a “true threat ... is a question of fact for the jury, not a
question of law for the court.”); Orozco-Santillan. 903 F.2d
at 1265 (a true threat “should be considered in light of their
entire factual context, including surrounding events”); Rov.
S03,
Appendix “L
416 F.2d at 878 (whether statement constitutes a threat “is to
be considered by the trier of fact in light of all the circum-
stances.” ): Gilbert, 884 F.2d at 457 (the “fact that a threat is
subtle does not make it less of a threat.”)
. As Judge Posner of the Seventh Circuit explained in a
second appeal after an alleged instructional error at retrial:
[W]e do not set aside a jury verdict on the ground
of lack of clarity, or even outright error in some of
the instructions. unless -- having due regard for
the unrealism of assuming that isolated passages
in a long set of instructions are likely to have
made the difference, we are convinced that the in-
structions, taken as a whole, [citations omitted]
are likely to have impaired substantially the jury s
ability to understand the case. [citations omitted].
... Since jurors are not required to explain their
reasoning, since their deliberations are confiden-
tial, and since their lack of legal training and ex-
perience makes it difficult for a judge to think his
way into their minds, the attempt by judges to
evaluate the impact of specific instructions on a
jury's verdict is speculative and quite likely to be
mistaken. This is a reason to proceed cautiously
when asked to set aside a jury’s verdict, and order
a new trial bound to consume substantial judicial
resources, on the ground that the instructions con-
tained erroneous or confusing passages. .... The
instructions here were inelegant and somewhat
ambiguous, but that is not a good enough reason
-14-
Appendix “L”
Dn ee
to put the parties and the district court through the
ordeal of another trial.
Needham v. White Laboratories, Inc.. 847 F.2d 355, 358.
360 (7th Cir. 1988). So too here -- even assuming for the
sake of argument there somehow was a “lack of clarity. or
even outright error” -- there is simply no basis upon this re-
cord to believe the “isolated passage” identified by plaintiff
was “likely to have made the difference” but instead the only
fair conclusion is that “the evidence would have supported a
verdict for [Deputy Thrash] even with that instruction.” See
Benigni, 879 F.2d at 480.°
* Plaintiff also oddly asserts “the court’s failure to use
Plaintiff's Proposed Supplemental Jury Instruction Nos. 18
and 19 flies in the face of the holding of Gulliford v. Pierce
County. supra. that Plaintiff's words were not fighting words
as a matter of law, and as such is appealable as a matter of
law.” App. Br. at 15. However, plaintiff does not include
the failure to give these instructions in his “Statement Of Is-
sues For Review,” id. at 1-2. and nowhere in his brief men-
tions them again -- much less explains how he claims the
failure to give them was error. Plaintiff also fails to disclose
that these proposed instructions were not filed until the last
day of trial in violation of the District Court's order and the
civil rules. See CR 178; CR 316 at 12-16; Fed.R.Civ.P. 51:
4.
Appendix “L”
West. Dist. Civ.R. 51(c). Further, “it is not error to refuse to
give a requested instruction that is only partly correct in its
Statement of the law.” Wright & Miller, 2 Federal Practice
and Procedure, § 482 (1982), and plaintiff's proposed
instruction 18 erroneously states that only “fighting words”
can be made a crime, CR 297; contra supra at 16-20, while
his proposed instruction 19 incorrectly states that plaintiff's
words “cannot be the basis for probable cause to arrest for
obstructing a public servant.” CR 297; contra supra at 23-
26.
att.
Appendix “L”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
Docket No.
C94-5658
(RJB)FDB
HERBERT GULLIFORD,
Plaintiff,
)
)
)
)
V. ) Tacoma,
) Washington
) November 29.
) 1999
)
)
)
PAUL THRASH.
individually,
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
PAUL D. THRASH
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE.
and a Jury.
Q. Without going into the basis for your understanding,
would you tell us what your understanding was why you
went to Heron Island that evening?
A. We were responding to a felony incident where the fire-
men who had gone to put out an illegal fire were threatened
by one individual, not only to burn up the fire engine. but
ae
Appendix “M”
the firemen that had accompanied it. And that we had a
crowd of people that we had to deal with to accomplish that.
Q. Now you mentioned this District 13. Do you know how
many square miles District 13 covered?
A. It’s approximately 115 square miles.
Q. Is A-22 an accurate map of District 13?
A. The areas in pink are District 13, including the islands.
Q. Now, what importance is it for officers’ safety to have
ready available backup on any call?
A. It’s extremely important.
Q. What backup did you have available if you went to
Herron Island?
A. Pretty much who you took with you.
Q. And how many people could you take with you on
September 6, 1992.
A. The most that we could garner that night was the one
state trooper, Reserve Deputy Donnelly, Sam Larson and
myself, and I believe there was one other state trooper that
By
Appendix “M”
was in route that we had not been made aware of at the time.
_Q. What importance to officer safety is it on a call that you
have good communications with the dispatcher?
A. Well, that’s your lifeline. If you get into trouble and you
are outnumbered and you need help or anything, if you need
to call, or a bust if you need to call for other types of
equipment, if you need to call a Swat Team out, you have to
be able to relay that to the dispatchers. And at that time our
radios were the only thing that we had.
Q. What was the quality of the police radio reception around
Herron Island?
A. Bad. It was very difficult to get out on the portable radio.
Sometimes you couldn’t get out at all, and iffy even on the
radios in the patrol cars.
Q. Who was watching District 13 when you went to Herron
Island?
A. Nobody.
Q. If that was the case and you had these safety concerns,
ry
-3-
Appendix “M”
why did you go to Herron Island?
A. Well, we couldn't ignore the fact that a crime had
occurred involving a public servant. And on their request we
had limited options as to what action we could take.
Q. What actions did you take. when you get this call, you
assemble the troops, what did you do then?
A. Well, we knew from the information we had gathered that
night that we were facing a potentially hostile crowd against
us. They had already intimidated and backed down the fire
fighters. So that reinforced that fear.
We knew that these were not juveniles. These were senior
older people, and that lent a little bit mor fear aspect it to.
We had a felony crime with the felony intimidation of a
public servant.
We knew by the firemen’s statement that it was J.D.,
although | didn’t know who J.D. was at the time.
All the people that were there at that time could have
been coconspirators to that threat to intimidate, to burn up
-4-
Appendix “M”~
the fire engine. Obviously we didn’t think J.D. could do it
by himself. |
So we felt that that entire crowd was behind him and
giving credence to his threat. And that’s what was related to
us by the people making the complaint.
We still had a dangerous fire by the fire department's
standards. They were saying this was a fire they needed to
put out during the burn ban when it was awful dry.
So that was still in there even though it was minimized in
terms of what our intentions were to do.
The plan that was formulated after researching the law in
coming up with intimidation of a public servant, was to go
there, arrest J D.., anybody else that interfered or obstructed
us. disperse the crowd as quickly as we could so as to avoid
the confrontation or potential fight or riot, because the fear
was there that this could get out of control fast. And then
have the fire put out at the end.
* * *£ * *
= 3
Appendix “M”
Q. Now, what information did you obtain from the fire to the
south?
A. I just walked up briefly until 1 could see it was a man and
woman and a couple of kids, two or three kids, and told
them they had to put the fire out. They said, “We just roasted
some hot dogs” or something. I said. “Yeah, I know, but it’s
fire department rules.”
They said, “Well, that’s the fire you want over there.
nobody's left yet.” And I said, “Oh, okay. Really. Thanks.” |
Then I turned and walked away.
Q. Now, prior to your going to the southern fire, had you
had any communication with any other persons around the
fire that you believe was the one in question?
A. As soon as I got out of my car -- | mean, there were
people milling all over the parking lot. Most of them are
congregated around the fire. There’s a couple of people that
were near my door. As soon as I got out, I said, “Party’s
over, disperse, go home, leave.”
-6-
Appendix “M”~
As I continued to walk amongst these people and down to
the beach, I kept reiterating the same thing.
So I don’t know how many times I said this word versus
that word. I just kept repeating over and over again to each
person I ran into, “Party’s over, leave, go home, disperse.”
Q. What was the group's reaction to those directions?
A. Mostly they either ignored me or wanted to argue with
me.
Q. Now, when you went back, after you were told by the
people at the first fire that that’s the fire that you want and
no one’s left, what did you do?
‘\. That's when I walked back quickly in front of the
Vehicles and I called to the other deputy, and I think I said.
“Sam over here.”
Q. Did you have any contact, verbal contact with the group
at that time prior to calling out for Sam?
A. Just as I said, that every ei that came within ear shot
of me, I just repeated, “Leave, go home, disperse.”
x &
Appendix *“M”
Q. So you spoke to them from the time you left the car,
going past them, and then as you went back past them again?
A. Correct. Just like I told the family with the hot dogs, “Put
the fire out.” It was a continuous trek, and then conversa-
tions with everybody | came in contact with.
Q. Do you remember timing this out, how long this took?
A. It was less then a minute. I believe.
* * * %* *
Q. What action did you take?
A. Well, because I had the feeling at that time I was dealing
with a bunch of drunken people, and being nice to them and
asking them politely “Leave, go home, disperse,” was not
working, that’s at that point in time that I raised my voice to
make sure that they could hear me and there was no mistake.
I raised my tone and | said, “People, I'm tired of this
shit.”
Q. Why did you use that expression?
A. Because there’s a certain shock value. People aren't
2.
Appendix “M”
expecting to hear that from a police officer.
At that point in time I was hoping to pierce that drunken
veil and let them know just how serious | was. that | wanted
them to listen to me and go home.
Q. When you said, “The party's over,” what was it that you
were trying to tell them?
A. That I didn’t want them there at that fire any more so we
could put it out. | wanted them just to go home.
Q. What did the crowd do in response to your more force-
fully telling the crowd to leave?
A. Well, nobody left and they just escalated their arguments
that they weren't doing anything illegal, this was a private
Island. We didn’t have any authority there, they hadn’t done
anything wrong. And wanting basically just to stay and dis-
obey our direct orders to leave.
Q. What was your -- what if any safety concerns did you
have for yourself at this point in time, considering al! the
things that had happened. the orders and the failure to dis-
-9-
Appendix “M~
perse, and now your more forceful order and sill getting
argument, what was your personal safety concerns at that
time?
A. Well, obviously as time drew on and nobody was obeying
us, my feeling was in fear that the attention was escalating to
a point that they were pushing us to a confrontation.
Q. Was there -- after you used this profanity the first time
and the crowd responded by arguing with you, what did you
do then? -
A. Well, there were a couple of more boisterous people than
others that, you know, tried to argue the legality of the fire.
And we weren’t there for that. I just told them that I didn’t
want to hear that.
They had been arguing constantly saying there weren't
doing anything wrong. I basically said, “No, I’m tired of
this.”” Then when I went on to the next statement, I wanted to
address the fact that “the fire department comes down here
and all they get is a bunch of shit,” and that’s when I was
-10-
Appendix “M”
interrupted.
Q. What is the danger -- what was your perception of the
danger of allowing this contact with the group to evolve into
an argument between am and the group?
A. Well, taking in context that we are dealing with senior, |
mean older people here that should know better, my mind-
set was that if they continued to argue, the longer they could
step us from taking action, the more force it lent them
against us to back us down, because they knew they had us
outnumbered, and it was a very real concern.
There was a certain amount of fear starting to creep up in
the back of my mind as to what we could do, other than just
back off and go back and do nothing.
Q. When you heard -- what were the words that you -- Let
me try this again. I think you mentioned that you were
interrupted. Had you finished your statement before you
stopped speaking?
A. No, I had not.
ihe
Appendix “M”
Q. What interrupted you?
A. A person speaking out from inside the crowd.
Q. We all know that was Mr. Gulliford?
A.C orrect.
Q. What did you hear Mr. Gulliford say to get you to stop
speaking?
A. My recollection at that time was “Get the fuck off the
island. Hop on the ferry, hop on the ferry and go back.”
Q. You've seen the videotape obviously?
A. Yes.
Q. Do you know why that first expression is not discernible?
A. | can only assume that the camera mike wasn’t pointed
directly at him, or there was somebody between the camera
and him at the time.
Q. When he said that first part of the statement, were you
speaking at the same time yourself?
A. Yes, I was.
Q. Now, how far was the camera from you, if you can recall,
22.
Appendix “M~
—_—————— eee _SaSaSa_a_a_aQaQ_Q_Q_Q_QQQQ_eeeQQa
at that time?
A. I have to base that opinion on what I see in the videotape,
because he was behind me.
Q. Who was closer to the camera, you or Mr. Gulliford?
A. Oh, I was closer.
Q. When Mr. Gulliford called out, did you have any problem
hearing his voice?
A. No. I did not.
Q. To whom did you believe he was addressing his
comments?
A. He was talking to me.
(). What did you believe he was telling you when he said,
“Hop on the ferry and go back?”
A. Going back to what I believe at that time, | don’t think it
was so much what I believe he was telling me as it was that
he was telling the crowd to resist us further.
Q. What eoncern did you have as to the affect of the
Statement on the crowd?
o] 3-
Appendix “M”
A. Well, left unchallenged, it’s a matter of who’s right and
who's wrong. | mean, here an officer of the law is trying to
order this crowd to disperse, and here a person in the crowd
is encouraging the crowd not to, by his statement telling us
to leave.
Q. What was the crowd's response to that calling out to you?
A. I didn’t give them much of a chance to respond at all. |
just went to get the person that made the statement.
Q. Why is that?
A. Well, at that point in time it was obvious to me that he
was obstructing me, not only from completing my
instructions to the crowd to leave, but he was in furtherance
, of that obstruction of the orders to disperse.
I had already ordered everybody to leave. Nobody had
taken a step one direction or the other to leave the area.
I think by that time I was fairly clear, if not absolutely
clear, that that was my intention, that I wanted evegybody to
leave.
-]4-
Appendix “M”
ernie a
Q. What did plaintiff's comment communicate to you was
his response to your orders to leave?
A. That he wasn’t going to leave and he would just as soon
that we did.
Q. Now, at that time when he calls out, under this
circumstance, through your mental process did you review
what options you had at that point?
A. I fell back on the planning. Obviously when you are
caught up in a situation like this, and it’s very confusing,
there's a lot of people taking at once, that’s the reason you
go into a situation like this with a plan so that you don’t
have to second-guess yourself. Because if you second-guess
yourself in front of them, they are going to see that as
weakness and they are going to take advantage of it and
press their position, and say, “Well. you don’t even know
what the law is, do you?”
So, yes, I fell back on the planning, that’s the reason I
pulled out the law books on the way over.
pa4.
Appendix “M”~
Q. Did you believe at that time, when you approached Mr.
Gulliford, that you had grounds to arrest him?
A. Well, predominantly, just for him. I would say first
comes to mind is the failure to disperse. Even had he not
said anything, my feeling at that time was that I could have
arrested anybody in the crowd for failing to disperse, since
I'd given them a lawful order to do so and nobody took one
step to do it. It didn’t matter if 1 gave them 5 seconds or 5
minutes. there was no indication that anybody was going to
comply with that order.
The other thing would be the obstruction. At that point in
time that he interrupted me, he was interrupting my giving
instructions for dispersal for any of those people that may
not have heard me prior to that.
Even not taking those things into consideration, there was
still the idea that we didn’t know if he had been there at the
time the threats were made to the fire engine or not, but if he
continued to stay there, and my feeling was J.D. was there,
-16-
Appendix “M”
there was still that lingering conspiracy to commit a felony,
intimidaiion of the fire fighters, as well as attendance at the
illegal fire.
Q. You mentioned earlier that when you heard the statement,
your concern was the effect it would have on the crowd. Is
there any crime in affecting a crowd by your words, that you
knew of?
A. Oh, sure, inciting a riot.
Q. Did you feel threatened by Mr. Gulliford’s comment?
A. I had heightened anticipation. | didn’t see that this was
going to be a good situation one way or the other, because
they weren't going to obey us.
Q. Now, when you went toward Mr. Gulliford to arrest him
for the crimes that you mentioned. what was your intent on
how you were going to carry that out?
A. Well, because he was in the center of the crowd, | had to
go get him, because he wasn’t going to come out on his own.
I immediately -- as soon as he interrupted me -- shined
-17-
Appendix “M”
my flashlight on him.
Q. Let’s stop there for a second. Coincidentally you have
something in front of you there. What's that?
A. This is a streamlight SL20. It looks pretty much like the
one I had that night.
-18-
Appendix “M”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Docket No.
) C94-5658
Plaintiff, ) (RJB)FDB
)
v. ) Tacoma,
) Washington
PAUL THRASH. )
individually, )
)
)
)
November 30,
1999
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
PAUL D. THRASH - CONTINUED
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE,
and a Jury.
Q. Now, I placed on your report, I had it up there for you. I
just wanted to go over your report and your testimony so
that I am clear on it.
It is my understanding that you testified yesterday, before
I started with you when you were speaking with Mr. Hamil-
ton, that you gave multiple orders to people to leave as you
ais
Appendix “N”
got out of your police car and walked over towards the fire
in question here; is that correct?
A. That’s correct.
Q. And was it your testimony that you spoke in a conver-
sational tone?
A. I talked in a normal voice. Not normal for today, but nor-
mal then. It was a full body voice. 7
Q. For the jury's benefit, you are suffering, I understand,
from a cold?
A. Yes.
Q. Now, those orders or directions for people to leave, who |
were they directed at?
A. Everybody I came in contact with immediately around
my patrol car.
Q. And what was your authority for that, what were they
doing wrong?
A. Well, as I stated. we had already determined that
everybody in close proximity to that bonfire we were going
ae
Appendix “N”
to disperse, because in our minds we had come to the
conclusion that there was a hostile crowd backing up a dhinens
to a public servant. And therefore we had a couple of
different violations of law above and beyond the simple
bonfire that was an illegal burning.
So we wanted to disperse these people, since we already
knew they were confrontational, and just be able to go after
J.D.
Q. How did you know that those were the same people who
were there earlier?
A. We based everything pretty much on the fire fighters’
statements us to.
Q. Did the fire fighters identify everyone who'd been there
earlier?
A. No.
Q. Then again, I will repeat my question: How did you know
who had been there at the time of the threat and who hadn't?
A. We didn’t.
a
-)-
Appendix “N”
Q. And you just decided to tell them to leave anyway?
A. Right, instead of arresting them, we were going to
disperse them and arrest the one for sure violator of law that
we knew was there.
Q. Well. tell me where the people were standing that you
told to leave as you got out of your car?
A. When I pulled up in the center of the parking lot, I can
recall at least two people that had to move back when |
opened my door of my patrol vehicle.
I mean, they were all around and milling about. This was
in close proximity to this fire. | mean, we are talking 20-plus
people here.
Q. So the people in the parking lot were milling around the
fire? ‘
A. Well, the people -- I mean were walking around my
patrol car and back to the fire and back to the patrol cars,
and they had beers in their hand and pretty much looked like
they were all one group. They all knew each other as far as |
ale
Appendix “N™
could tell.
Q. Now, it was also your testimony, and correct me if | am
wrong, that you gave an order to leave prior to attempting to
arrest the person you thought was J.D.; is that correct?
A. I gave numerous orders. “Leave” was one of the words I
used.
Q. So isn’t it true that you targeted Mr. Gulliford because he
had the nerve to talk back to you?
A. No.
Q. And again, it is your testimony that you gave an order to
disperse to a crowd that contained an individual that you
were attempting to arrest for a felony; isn’t that correct?
A. 1 am sorry, could you state that again?
Q. Is it your tes‘imony that you gave an order to disperse to
a crowd that contained a known felon?
A. Yes.
sie
Appendix “N”
Q. Did you expect your known felon to disperse?
A. I suspect that he was in the crowd some place, and if we
dispersed most of them we could single him out as they
started leaving.
Q. How did you know he wasn’t going to be the one who ran
away first.
A. I didn t. We were on a private island. If there had been no
conflict or confrontation, hopefully once he was away from
the rest of the crowd we could have had the fireman point
him out and arrested him calmly without confrontation with
20 other people.
Q. Well, if you didn’t know he was there, then he could have
dispersed; correct? You didn’t know he was there; right?
A. My understanding was he was there.
Q. But you said earlier you didn’t know he was there that
night?
A. I had no personal knowledge. I depended on the know-
ledge of the fire fighters and the people who knew him.
-6-
Appendix “N”
+ 6.0 & *
Q. Looking also at 819, starting at line 23. Ill just try to
summarize up there, asking question about the effect of Mr.
Gulliford’s statement to you.
The question, on line 23: “Question: What did that
indicate to you?
Answer: It raised my fear that there was a confrontation
coming and that he was going to stand his ground and he
was hoping by verbally challenging us that he was going to
vet the rest of the crowd incited and the rest of the crowd to
disobey also.”
Was that the question and your answer?
A. Yes.
Ki, #
Appendix “N”
\f
“
ae at me
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
Docket No.
C94-5658
(RJB)FDB
HERBERT GULLIFORD,
Plaintiff.
Tacoma,
)
)
)
)
v. )
) Washington
)
)
)
)
)
PAUL THRASH,
individually,
November 23,
1999
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF CROSS-EXAMINATION OF
HERBERT GULLIFORD
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE,
and a Jury.
* * * * *
Q. Okay. Could you turn to page 323, line 13. Starting at
line 13, were you asked this question and did you give this
answer:
“Question: And when he called out, you were intending
to communicate to the deputies that they are the ones that
should leave, weren’t you?
ahs
Appendix “O”
“Answer: Yes.”
A. Yes.
Q. Is that your testimony?
A. Yes.
Q. That’s your testimony today as well?
A. Yes. \
Q. You, as you testified, you felt the deputy needed some —.
help making a decision?
A. It sounded like he did.
_ Q. Line 6, you were asked this question, and did you give
this answer:
“Question: What did you expect the deputy to do to
respond to your direction since he was obviously out of
control? |
“Answer: Well, if he was smart, he would have left.”
Is that your answer to that question?
A. That’s what you asked. I didn’t tell him that at the time.
m ™
Appendix “O”
Q. I am sorry, that’s what you thought. I was asking your
intent in what you wanted to do in your mind. You wanted
to communicate that if he was smart, he should leave?
A. Yes.
“
-3-
Appendix “O”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Docket No.
) C94-5658
Plaintiff, ) (RJB)FDB
) :
v. ) Tacoma,
) Washington
PAUL THRASH, ) November 29,
individually, ) 1999
)
Defendant. ) Court of Appeals
)
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
JOHN MITCHELL
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE.
and a Jury.
Q. Were you able to see them arrive on the North Beach
proper?
A. Yes, they went right past my house, turned the corner and
parked right, sort of in the middle of the parking area there.
Q. Can you describe for the jury what you saw happened
from the time the patrol cars pulled to a stop, forward?
sc
Appendix “P”
A. I didn’t see very much because of the trees that obscured
my view. But I saw the people, the deputies and the others
who were in the cars, get out of their cars and walk towards
the area of the fire, the people that were having a fire.
Q. Did you hear anything that was said by the deputies?
A. Yes.
Q. What did you hear?
A. I heard, almost as soon as this one deputy, who appeared
to be the person in charge, almost as soon as he got out of
his vehicle, I heard him say words to the effect, and very
loudly shouting, “All right, people, the party’s over, let’s go |
home.”
And he repeated it over and over again, very loudly.
Q. Were you able later to determine who that officer was?
A. I found out later -- I had not met him before -- but I was
told that was Deputy Thrash.
Q. After you heard the deputy’ comments, do you remember
how many times that these comments were made?
my
—
Appendix “P”
A. Well, it would just be an estimate, but I would say it went
on for a minute or two, because people were not dispersing
after, when he said that. Nobody moved, so far as I could
tell.
Q. After these statements were made. what other -- what else
did you hear or see?
A. Well, as I said, I couldn’t see very much. But what I
heard was. i heard the group of the deputies and the firemen
move towards the fire area, and there was the loud command
from the deputy to disperse and go home, the party’s over.
Then I just heard that die down somewhat, and they
moved towards the fire pit. And there was just a lot of voices
shouting at once, a lot of arguing between the people who
were there at the fire and the deputy, I think it was primarily
Deputy Thrash, just arguing back and forth.
And the people were not leaving.
Q. At the time that you heard these things, what if any
concern did you have for the officer’s safety?
a
-3-
Appendix “P”
MR. FELDMAN: Objection, Your Honor.
THE COURT: Sustained.
BY MR. HAMILTON:
Q. What was the tone of the crowd’s reaction to these orders,
to your observation?
A. Well, it was quite amazing, I’ve never seen anything ---
MR. FELDMAN: Objection, nonresponsive.
THE COURT: I am not sure I understand that
question. Is it from your own personal knowledge and
observation that you made?
MR. HAMILTON: Yes, Your Honor.
THE COURT: All right. |
A. That’s what I understand, and I didn’t complete my
answer yet.
THE COURT: Well, I don’t know where you are
headed with it. Counsel?
BY MR. HAMILTON:
Q. To your observation, what did you observe, what was the
aie
Appendix “P”
tone of the crowd’s reaction to the deputy’s command,
before you heard this argument? Did you hear any kind of
response at all?
A. Well, the response | hand from the people there was they
were arguing with the deputies, in a very hostile manner.
I said before they were disrespectfully mocking the
deputies when they came over on the ferry. The level just
went up significantly. They were arguing with them
Here there was a deputy telling them to go home and they
were arguing, “No.” “You don’t have the right to be here.
Why are you doing this?” They just refused to leave. So they
were arguing.
+ ok ok Ok x
BY MS. DEUTSCHER:
Q. Isn’t it also true that there are approximately 200-foot
trees in between you and the beach? -
A. I don’t know how tall they are. Standard trees you are
referring to there --
iS
Appendix “P”
Q. Correct.
A. -- that I testified about? They are pretty tall, but I don’t
know how tall they are.
Q. And they totally-obscured your view of the fire; isn’t that
correct?
‘. They mostly obscured my view, as I testified.
Q. Now, it is your testimony that you heard multiple orders
by the police for these folks to leave; is that correct?
A. | heard multiple orders by who I understood later to be
Deputy Thrash.
Q: But you couldn’t see what was going on at the time those
orders were made, could you?
A. Aside from seeing the deputies walk from their vehicles
in the parking lot towards the fire, I couldn’t see anything
except for the light from the video camera and the flames
from the fire.
Q. So you don’t know if you heard those before or after Mr.
Gulliford was arrested?
4
Appendix “P”
A. Heard?
Q. The orders to leave. You don’t know if those orders to
leave occurred before or after Mr. Gulliford was arrested,
because you couldn't see him being arrested; isn’t that true?
A. I couldn't see him being arrested. Are you suggesting he
was arrested before the deputies got out of their vehicles?
Q. No, that’s not what I am suggesting.
A. Then I don’t understand what you are suggesting.
I heard Deputy Thrash, as I testified, shout, almost as
soon as he got out of his car. I could see him get out of his
car in the parking area, walk towards the fire. “Okay, people,
go home, the party’s over.”
Q. You heard him say “Go home”? Are you sure?
A. Yes, | am fairly confident he said, “Go home, the party’s
over.” Excuse me, but at that point I don’t believe any arrest
could have been made. He just got out of his car.
Q. And you are sure you heard him say, “Go home,” you
said?
ihe
Appendix “P™
A. I’m fairly confident he said “Go” -- if he didn’t use those
specific words, “Go home,” and if the people at the beach
spoke English, they certainly got the intent of what he was
saying.
Q. At any point, from the time the police officers arrived un-
til the time they left, how could you distinguish whose voice
you were hearing when you couldn't tell -- you couldn’t see
them?
A. By the -- no one has ever asked me that question before,
that’s why I had to hesitate for so long.
Probably based on the content.
MS. DEUTSCHER: Your Honor, if he could just
answer the question.
THE COURT: Without editorializing, maybe get
Straight to the answer.
THE WITNESS: Very well, Your Honor.
A. Based on the content of what I heard. When the Deputy
-8-
Appendix “P”
says, “Go home, the party’s over,” that’s from the police.
You know, “Leave, the party’s over,” that’s from the police.
Arguing with the deputies, “No, we're not going to leave.
Why are you here? You don’t have a right to be here. We
have a right to stay on our beach. Go back to where you
came from,” that’s clearly not the deputies.
BY MS. DEUTSCHER:
Q. You can't identify any of those voices as any specific
individual, though, can you?
A. That’s correct, I cannot. I hadn’t even met almost all
those people down there.
Q. If] understand your testimony, you commented that you
heard the police officer say, “The party’s over;” is that
correct?
A. Yes.
Q. Okay. Before you heard that, did you ever hear the word
“Leave” come out of any officer’s mouth?
A. [ may have heard “Leave.” Again, the words were -- the
e*
Appendix “P”
essence of the words were, “Get out of here. Leave. Go
away. Go home. The party’s over.”
+ © *ot-c8
REDIRECT EXAMINATION
BY MR. HAMILTON:
Q. When did you see the deputy that you later learned was
Deputy Thrash, when did you see him for the first time on
that evening? |
A. What did I see him do?
Q. When did you see him for the first time that evening?
A. When he got out of his vehicle.
Q. When he got out of his vehicle, where, as far as chronol-
ogy, did he first make the statement ae you ve testified that
he made?
A. He shouted for the people at the fire to “Leave” aia “Go
home” immediately within seconds after getting out of his
vehicle.
Q. And between the time he got out of his vehicle and made
-10- fe
Appendix “P”
these statements, to the time that you heard argument or
commotion, how many times do you believe that you heard
Deputy Thrash make those statements?
A. Well, as I testified earlier, he probably shouted for a
minute or more. So is that 10 times, 20 times. Many times.
ct.
Appendix *P—__ —
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Docket No.
) C94-5658
Plaintiff, ) (RJB)FDB
)
V. ) Tacoma,
) Washington
PAUL THRASH, )
)
)
)
)
individually,
November 29,
1999
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
PATRICK DONNELLY
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE,
and a Jury.
x ok ko x
Q. How long have you served with the sheriff's department
as a volunteer?
A. Twenty-two years.
Q. And what training are you given as a reserve deputy, just
generally?
A. We went through an academy and then usually once a
<i.
Appendix “Q”
month they have training of some sort.
Q. As a reserve deputy, are you paid by the County?
A. No.
Q. What do you do for a living?
A. I work at McNeil Island as a corrections officer.
Q. Now on September 6, 1992, did you have occasion to
travel to Herron Island?
A. Yes, I did.
Q. Can you tell me what your understanding, without going
into the reasons for that understanding, was as to why you
were traveling to Herron Island that evening?
- A. There was a fire on the beach -- correct, two fires on the
beach and there was threats made to the fire department
concerning one of the fires.
Q. What was your understanding, again without going into
the detail of the basis for your understanding, as to who had
made these threats?
A. An individual named J.D. Michalski.
ia.
Appendix “Q”
Q. What was your understanding, again without going into
the detail, as to what role anyone else might have had in
those threats?
A. Just that they were there and backed him up.
Q. Who was that?
A. The partiers at the beach.
x * kok OX
Q. What observations did you make as far as any statements
that Deputy Thrash made, between the time that you first
saw him, to the time he contacted a Mr. Peterson?
A. “Leave the park,” three different times.
Q. That was something that was said by Deputy Thrash?
A. Yes.
Q. Do you recall his exact words?
A. No. I wrote it in my report.
Q. After this statement was made by Deputy Thrash, what if
anything did the people at the large fire do?
A. They were arguing and saying that they really didn’t want
2.
Appendix “Q”
to leave.
Q. Did anyone leave in response to these orders?
A. To my knowledge, no.
kok ok OX
Q. What officer safety concerns did you have that this crowd
apparently was not following orders to leave?
A. That they might turn on us.
Q. Did you hear Deputy Thrash use a profanity in addressing
the crowd?
A. Yes.
Q. What was your understanding at the time that that
profanity was meant for?
MR. FELDMAN: Objection, Your Honor, he couldn't
have had any understanding.
THE COURT: Sustained. He can say what he said.
BY MR. HAMILTON:
Q. How many times did you hear Deputy Thrash use that
profanity?
-4-
Appendix “Q”
—————————————————
A. Twice.
Q. What was the crowd’s response to this forceful statement
by Deputy Thrash, other than what you described that you
heard Mr. Gulliford say?
A. It seemed like they got agitated and a little bit louder.
x * kk x
BY MR. FELDMAN:
Q. What was your observation of why or what -- never mind
what, what did Mr. Gulliford do in your observation to
warrant him being arrested?
A. Obstruction.
Q. He obstructed. And he obstructed by his remarks and
interrupting the deputy in the middle of his speech; is that
night?
A. I wouldn’t characterize it as that.
Q. What else did he do besides that? -
A. He got the crowd worked up by saying that and took us
away from what we were there to do in the first place.
am:
Appendix “Q”
x * * * *
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
Docket No.
C94-5658
(RJB)FDB
HERBERT GULLIFORD,
Plaintiff,
)
)
)
)
Vv. ) Tacoma,
) Washington
)
)
)
)
)
PAUL THRASH,
individually,
November 30,
1999
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
JOE BEARDEN
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE,
and a Jury.
x * * * *
Q. Did you go back to the mainland with the officers?
A. I did not go back to the mainland with the officers.
Q. What statements, if any, did you hear Officer Thrash
make to the group?
A. At what point in time?
Q. Before -- after Mr. -- Mr. Petersen was arrested and
=m
Appendix “R”
before Mr. Thrash, Officer Thrash, attempted to arrest Mr.
Gulliford.
A. I recall the officers saying that the party’s over and to
disperse.
Q. Do you recall hearing those precise words?
A. No, not those precise words. Something along those lines,
that it was time to go home.
Q. Did you hear the words, “The party’s over”?
A. I cannot be certain about it. I’m just generalizing to you
what I thought I remember hearing.
Q. How many times do you think you heard Officer Thrash
say that before Mr. Gulliford was contacted by Officer
Thrash?
A. Say those words that I generalized on?
Q. Yes.
A. I cannot recall how many times. It had to have been
several, and because no one was responding.
a: 2 2 ate
-.
Appendix “R”
Q. When plaintiff called out to the deputies, were you able to
hear his voice from where you were?
A. Yes, I was.
Q. Where were you at that time?
A. I believe I was in the vicinity of the fire.
Q. To whom did you believe that statement was directed?
A. To the officers.
MR. HAMILTON: Go to page 80, starting at line 20.
BY MR. HAMILTON:
Q. What was your reaction -- what was the crowd’s reaction
to Deputy Thrash’s statement, other than plaintuff’s calling
out?
A. That of one of nonresponse.
MR. HAMILTON: Page 81.
BY MR. HAMILTON:
Q. At any time did you have any concern for your safety or
the deputies’ safety from this crowd?
A. Yeah. At one point in time it seemed to escalate, and I
7s
Appendix “R”
EO
was worried for the officers and the firefighters.
Q. How would you describe the level of tension at the time
that plaintiff called out to the deputies?
A. Very high tension.
* * * * *
Appendix “R”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
Docket No.
C94-5658
(RJB)FDB
HERBERT GULLIFORD,
Plaintiff,
)
)
)
)
v. ) Tacoma,
) Washington
PAUL THRASH, )
individually, )
)
)
)
November 22,
1999
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
CURTIS BRAY
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE,
and a Jury.
* * * * *
9
Q. Now, you heard the deputy say, “The party’s over, folks,
or something like that?
A. Yes.
Q. And what do you think “The party’s over” meant? What
did it mean to you?
A. That we should go home.
iy.
Appendix “S”
Q. Nobody went home, though, did they?
A. Not that I was aware of.
Q. In fact, after that, the crowd not.only didn’t leave, but
they started to argue with them, didn’t they?
A. Yes.
Q. And the crowd was beginning to be rebellious?
A. Yes.
Q. And the deputy responded to this rebelliousness by
turning up his volume?
A. Yes.
Q. Now, you testified that you remember what Mr. Gulliford
said.
A. Yes.
* * * * *
Appendix “S”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, Docket No.
C94-5658
(RJB)FDB
Plaintiff,
Tacoma.
)
)
)
)
v. )
) Washington
)
)
)
)
)
PAUL THRASH.
individually.
November 29,
1999
Defendant. Court of Appeals
No. 00-35005
TRANSCRIPT OF TESTIMONY OF
TERRILL LARSON
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE,
and a Jury.
Q. On ‘September 6. 1992. after you got the call, or you were _
informed that there was a need for sheriff's deputies on
Herron Island, what was your understanding as to why you
were going to Herron Island?
A. That there was a beach party at the south end of the
island. The people were intoxicated, and they had backed the
ie
Appendix “T”
fire department off from putting a fire out during a burn ban.
Q. What was your understanding as to whether there had
been any threats made?
A. That’s how they backed the fire department off, they'd
threatened their lives.
t+ * * * &
Q. How far were you from Mr. Gulliford when you heard
him say this?
A. I was across the fire and I believe maybe 20 feet. maybe
more. E
Q. Were you aware of where the video camera man was at
the time when this happened?
A. I think he was to my left.
Q. So who would be closer to Mr. Gulliford when the
comment was made, you or the cameraman?
A. Well, I would have been.
Q. Did you have any problem hearing plaintiff's voice?
A. No.
“a.
Appendix “T”
Q. To whom do you believe this comment was directed?
A. At law enforcement.
Q. When you heard that statement, what was your under-
standing of what was meant?
A. For us to leave.
Q. What if any officer concerns did you have when that
comment was made under these circumstances?
MS. DEUTSCHER: You Honor. asked and answered
about three or four times.
THE COURT: You may answer.
A. Any time you are in a drunken crowd you are worry
about somebody piping up and getting the rest of the crowd
to follow and become more aggressive toward officers, and
that was our major concern at that point.
BY MR. HAMILTON:
Q. What were your options at that point when plaintiff, in
the midst of this crowd under these circumstances, the
knowledge that you had of why you went over there, made
*
-)J-
Appendix “F”
this statement, what were your options available to you?
A. We could have kept yelling and talking to the crowd. We
could have arrested someone. We could have left.
Q. What did Deputy Thrash do in response to this call?
A. We went over and arrested Mr. Gulliford.
Q. You were also asked about the mind-set of the trooper.
Did the trooper tell you that he was scared to death of the
crowd?
A. He was ee of the crowd, yes.
Q. Now, the exhibit that is the blow up of your report, what
is it entitled, what kind of report is it?
A. “Intimidating a public servant.”
Q. This form of report, is it a general report or a
supplemental report?
A. Mine is a supplemental report.
Q. What does supplemental report mean?
A. It means that someone else is writing the reasons for --
-4-
Appendix “T™
you ve got a general report, which is the case that you are
taking. For instance, if you do an arrest, the person who
makes the arrest normally does the general report. Then the
supplemental reports are done by the assisting officers.
I was one of the assisting officers. So I write a
supplemental report to his general.
Q. As far as any previous orders to disperse, prior to being
called over by Deputy Thrash, where was your attention
directed?
A. I was at the other fire.
Q. So if Deputy Thrash made orders to disperse, where was
your attention during that time?
A. I wouldn’t have heard it. I was back turned towards him
on the other side, the cars between us.
Q. Did you hear what is at least recorded on the tape of
Deputy Thrash saying, “This party’s over people?”
A. Yes.
Q. You said you heard Mr. Gulliford’s response?
a.
Appendix “T™
A. Yes.
Q. What did Mr. Gulliford’s response indicate to you was
his willingness to disperse?
A. That they weren’t leaving at ail.
£2. & 6
-6-
Appendix “T”
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Docket No.
) €94-5658
Plaintiff, ) (RJB)FDB
)
v. ) Tacoma,
) Washington
PAUL THRASH, )
)
)
)
)
individually.
November 30,
1999
Defendant. Court of Appeals
No. 00-35005
PARTIAL TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE.
* * * * *
THE COURT: All right. No. 10 talks about on
plaintiff s wrongful arrest claim, the elements of proof. Any
problem with Instruction No. 10? Any objection to that?
MR. FELDMAN: Yes.
THE COURT: All right.
MR. FELDMAN: Your Honor, I believe that it is ab-
solutely important, critical for the jury to understand that --
a
Appendix “U”
and I briefed this before, | have given the Court some brief-
ing on this -- there has to be a reasonable time given to dis-
perse. That’s the second part.
The first part is that the oun to disperse must be clear
and understandable and communicated to the person that
was arrested, that they had to disperse or else they would be
arrested.
THE COURT: Well, you are arguing the case now.
Just tell me what you think should be included in there.
MR. FELDMAN: There should be something in there
that defines that the order must be clear and communicated
to the person to who has been arrested. He has to have heard
it, and he has to have had a reasonable time to obey it before
he is arrested.
THE COURT: All right. Mr. Hamilton do you want
to be heard on that?
MR. HAMILTON: Just that I disagree with that. I
think the language of the elements are from the statute, from
eM
Appendix “U”
the state pattern book.
The only issue I would have, Your Honor, is when it gets
to the elements, | think in our jury instruction we proposed
that the fourth element be causation. That there is no
constitutional violation without causing some harm, and that
would be the only objection I would have to Instruction No.
10.
MR. FELDMAN: Your Honor, I don’t understand
what counsel’s objection is. He wants to put in something
that there's no violation --
THE COURT: I think what he’s saying, there should
be some showing of some -- that he was injured by that.
MR. FELDMAN: No, I don’t think that’s the law.
THE COURT: That is what he is saying. I am not
asking you what should be there.
What I am trying to get now, I don’t want you to argue.
You are telling me in this instruction there should be some- -
thing about a reasonable time to disperse after some order.
~
-J-
Appendix “U”
that it should have been clear and communicated, and it had
been violated. You are saying that that should be a part of
this.
That is what I will take as I revisit this and give you what
I] am going to give you tomorrow, and you are saying that
that element should be in there.
die
Appendix “U”
UNITED STATES DisTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
HERBERT GULLIFORD, ) Docket No.
) C€94-5658
Plaintiff, ) (RJB)FDB
)
v. ) Tacoma,
) Washington
PAUL THRASH, )
individually, )
)
)
)
December 1,
1999
Defendant. Court of Appeals
No. 00-35005
PARTIAL TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE FRANKLIN D. BURGESS
UNITED STATES DISTRICT JUDGE.
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MR. FELDMAN: As far as the other, I still also be-
lieve there should be some qualification to the disperse that
has to be clearly communicated. I believe that common
sense dictates that as well, but I think that there should be
something.
THE COURT: You can argue that.
MR. FELDMAN: Yes.
THE COURT: I think if you want to argue that they
ole
Appendix “Vv”
didn’t give him enough time or did give him enough time.
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Appendix ““V”
CONSTITUTIONAL AND STATUTORY PROVISIONS
e ituti rticle V
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary
notwithstanding.
United States Constitution Amendment |
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof: or
abridging the free dom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
nite ate titution Amendment IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall is-
sue, but upon probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be searched,
and the persons or things to be seized.
28 U.S.C. §1738
The Acts of the legislature of any State, Territory, or
Possession of the United States. or copies thereof, shall be
authenticated by affixing the seal of such State, Territory or
Possession thereto.
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Appendix “W”
The records and judicial proceedings of any court of any
such State, Territory or Possession, or copies thereof, shall
be proved or admitted in other courts within the United
States and its Territories and Possessions by the attestation
of the clerk and seal of the court annexed, if a seal exists,
together with a certificate of a judge of the court that the said
attestation is in proper form.
Such Acts, records and judicial proceedings or copies
thereof, so authenticated. shall have the same full faith and
credit in every court within the United States and its
Territories and Possessions as they have by law or usage in
the courts of such State, Territory or Possession from which
they are taken.
42 U.S.C. $1983
Every person who, under color of any statute, ordinance,
regulation. custom, or usage, of any State or Territory or the
District of Columbia. subjects, or causes to be subjected, and
citizen of the United States or other person within the juris-
diction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be li-
able to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. For the purposes of this
section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of
the District of Columbia.
RCW 9A.76.020
(1) A person is guilty of obstructing a law enforcement
officer if the person willfully hinders, delays, or obstructs
any law enforcement officer in the discharge of his or her
official powers or duties.
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Appendix “W”
(2) "Law enforcement officer" means any general
authority, limited authority, or specially commissioned
Washington peace officer or federal peace officer as those
terms are defined in > RCW 10.93.020, and other public
officers who are responsible for enforcement of fire,
building, zoning. and life and safety codes.
(3) Obstructing a law enforcement officer is a gross
misdemeanor.
“W 94.84.02
(1) A person is guilty of failure to disperse if:
(a) He congregates with a group of three or more other
persons and there are acts of conduct within that group
which create a substantial risk of causing injury to any
person. or substantial harm to property: and
(b) He refuses or fails to disperse when ordered to do so
by a peace officer or other public servant engaged in
enforcing or executing the law.
(2) Failure to disperse is a misdemeanor.
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Appendix “W"
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.