# Appendix — Thrash v. Gulliford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2446%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1020 ## Text qr 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 APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. APP. 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> - 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 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. ~ -)- Appendix “W" --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2446%3A2. Public record. Not legal advice.