Opposition Brief — Thrash v. Gulliford

FILED

I

No. 01-430 ; OCT 12 2001

In The aeap ee

Supreme Court of the United States

DEPUTY PAUL THRASH,

Petitioner,

HERBERT GULLIFORD,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

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Diana LYNN Kieset* Joe A. FretbMAN

424 Broadway 14706 Union Avenue S.W.

Tacoma, WA 98402 Lakewood, WA 98498

253.274.1196 253.582.6109

Counsel for Respondent

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE Cr CONTENTS

Page

ig t gh Ee ey |. 6... GU ares herrea 1

-j¢ 4) bp) Bi a Bj | GRR apr are ear ie ae 2

STATEMENT OF THE CASE... ... 2.2 cccccsccssaases 3

ae . TS ee oy rere reer er eer rr errr ee 3

I. PROCEDURAL HISIORY .... 2... ccessvccccnss 5

REASONS FOR DENYING WRIT ..............-.-- 8

I. THE CORRECT PROCEDURE FOR SEEKING

REVIEW OF A DENIAL OF QUALIFIED

IMMUNITY WAS NOT AT ISSUE IN THIS

DE pec cee vee cscceeistavakawedeasahcs te 8

A. Qualified Immunity Is Not Even Mentioned

In This Unpublished Memorandum....... 8

B. This Court Acted Correctly When It Denied

Certiorari In Gulliford I In 1998........... 9

II. THE FEDERAL AND STATE COURT PRECE-

DENTS IN THIS MATTER ARE IDENTICAL .. 11

A. The Decision In Gulliford I Was Reviewed

I I Fa aa oR ve ee AES 11

B. Qualified Inmunity Does Not Protect Offi-

cers From Behavior Which Is Clearly Estab-

lished To Be Unconstitutional ............. 12

III. WHEN PLAINTIFF DID NOTHING BUT SPEAK

AND HIS SPEECH WAS PROTECTED BY THE

FIRST AMENDMENT, THE NINTH CIRCUIT

WAS CORRECT IN DIRECTING A VERDICT OF

oP 8) @ ae CPAs nye oe Per 16

A. The Respondent Is Rearguing Facts Which

Were Already Reviewed By This Court ... 16

il

TABLE OF CONTENTS - Continued

Page

B. The Defendant Presented No Viable Basis

For Probable Cause To Arrest Gulliford ... 17

‘CONCLUSION ..... =e 21

ili

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034,

gS os Bg, Re 15

City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct.

2502, 96 L.Ed.2d 398 (1987)............ 10, 13, 14, 15

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

DETSS PERERA eKeRSLE SAG eenveCssesednaceweeees 10, 13

Gulliford v. Pierce County (Gulliford I), 136 F.3d 1345

(9th Cir.), cert. denied, 525 U.S. 828 (1998) ........ passim

Gulliford v. Thrash (Gulliford II), 2001 WL 427285

Sn a SUE> Ay MOPED cv ccesesvabeccsansssceces passim

Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct.

PFU, Oe Man GEO (E974)... occ ccnscsesaneds 10, 13

Lovell v. Poway Un-fied School Dist., 90 F.3d 367 (9th

ET neki esvoee utaneedhnee ech chba as canuewes® 20

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

OST EET Pree ee TEEPE TET EET EET Ee 10, 13, 15

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86

SE EE COD asec sncccssistvckiguvecaceswes 9, 10

Powell v. Schriver I, 175 F.3d 107 (2nd Cir. 1999)..... 10

peeeeer @ ROEe, Soo WS. CBOE) noc nccccciscncs 9, 15

State v. Lalonde, 35 Wn.App. 54, 665 P.2d 421 (1983) 13, 14

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

Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93

Be Re re ee 10, 13

United States v. Brice, 926 F.2d 925 (9th Cir. 1991) ....15

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Gilbert, 813 F.2d 1523 (9th Cir.

i) OUTLET COTT CRT OPT TO TOPE CTE Ree Pe ry er 19, 20

United States v. Orozco-Santillan, 903 F.2d 1262 (9th

Ge PPE ex ENS LG Cane vessyebbedea alia Tesaene 19, 20

United States v. Poocha, 2001 WL 880840 (9th Cir.

Ty MN FS daceed Roesch sande rea nued cannes nese 2

CONSTITUTIONAL PROVISIONS

Se eg MUNI Bc pub oie woe wsdendanes Ginn’ passim

has Ss PO OF us vec boeken be Calbibeuccel 37

STATUTES

Revised Code of Washington § 9A.76.020.......... 2, 14

RuLEs

Pn CUPCUE TMD DOH) 6. on oink cecaccccvensansneaen 7

Sue SINE ONIN Ps scenes ccd cdade ccs wadesonncdde 7

supreme Court Rule 14.1(a).’................ceceeees 12

Supreme Court Rule 14.1(i)....................00008 19

Supreme Court Rule 15.2....... (bien sckasedeanennee ae

supreme Court Rule 33.1(@NMil).. .... 2.0.0. eccceseess 19

ey Se Te GS oo dos cnc nscnavonscavenousee 8

|

;

3

:

5

S

BRIEF IN OPPOSITION

The Respondent, Herbert Gulliford, opposes the peti-

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

United States Court of Appeals for the Ninth Circuit.

¢

REPORTS OF OPINIONS

The decision of the Ninth Circuit Court of Appeals

which is the subject of Deputy Thrash’s petition for writ

of certiorari is an unpublished memorandum, Gulliford v.

Thrash, 2001 WL 427285 (9th Cir. Apr. 25, 2001).1 (Pet.

App. C.)

This matter was previously before both the Ninth

Circuit and this Court. The decision in that appeal was

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

cert. denied, 525 U.S. 828 (1998). (Pet. App. A.) The Peti-

tioner neglected to include a copy of this Court’s order

denying certiorari in that decision. A copy of the order is

included in the Respondent’s Appendix in this volume.

+

1 The case title of Gulliford v. Pierce County was changed to

Gulliford v. Thrash during its second trip to the Ninth Circuit

Court of Appeals. For clarity, the 1998 opinion entitled Gulliford

v. Pierce County, 136 F.3d 1345 (9th Cir. 1998), cert. denied, 525

U.S. 828 (1998), will be referred to as Gulliford I. The 2001

memorandum entitled Gulliford v. Thrash, 2001 WL 427285 (9th

Cir. Apr. 25, 2001), will be referred to as Gulliford II.

STATUTES INVOLVED

It should be noted that the text of the Revised Code

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

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

(Pet. App. “W” 2-3.) Petitioner cites the 1995 version of

the statute which is substantially different from the 1975

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

“9A.76.020 Obstructing a public servant. Every

person who, (1) without lawful excuse shall

refuse or knowingly fail to make or furnish any

statement, report, or information lawfully

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

any such statement or report shall make any

knowingly untrue statement to a public servant,

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

any public servant in the discharge of his official

powers or duties; shall be guilty of a misde-

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

+

STATEMENT OF THE CASE

I. FACTS

Petitioner Thrash has attempted to gloss over the

facts of this case, and attempted to rewrite the facts by so

doing. Thrash cites United States v. Poocha, 2001 WL

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

unconstitutional by the Washington State Supreme Court in

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

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

violation of Section 3 of the 1975 version of the statute.

880840, at *3 (9th Cir. Aug. 7, 2001) to bolster his recita-

tion of the facts, although none of the judges who heard

Poocha heard either Gulliford I or Gulliford II]. A more

accurate rendition of the facts is found in Gulliford I, 136

F.3d 1345, 1347 (9th Cir.), cert. denied, 525 U.S. 828 (1998).

Because Petitioner’s Questions 2 and 3, as posed to

this Court, are based upon his misrepresentations of these

facts, it is necessary to review what actually happened on

Herron Island.

Deputy Thrash completely neglects to mention that

the entire episode was recorded on videotape with sound

recording.* (Ex. 10.) In reaching its decision, the Court of

Appeals had access to Exhibit 10, and viewed it before

hearing oral arguments in this appeal and in Gulliford I.

Petitioner continues to insist that Mr. Gulliford

“failed to disperse”. (Pet. 2-3, 5-6, 14, 20-24.)

Ex. 10 shows that the first order to disperse was

issued after Mr. Gulliford was already on the ground,

pulled down from behind by Deputy Thrash. Deputy

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

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

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

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

(Ex. 10.)

Thrash further neglects to mention that Mr. Gulliford

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

3 The videographer, Curt Bray, an island teenager and

Eagie Scout, was also arrested for Obstructing A Public Servant

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

12.) )

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

Gulliford did anything other than to arrive at the commu-

nity beach shortly before the deputies did.

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

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

Petersen — the wrong person - Deputy Thrash angrily

addressed the crowd, cursing at them and telling a

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

As Deputy Thrash lectured this group of mostly mid-

dle-aged people, and in response to Thrash’s statement,

“This is a waste of government... ,” Gulliford responded

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

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

Gulliford I, 136 F.3d 1345, 1347 (9th Cir.), cert. denied, 525

U.S. 828 (1998).)

In the words of Deputy Patrick Donnelly, “U 147

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

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

13.)

Each of the deputies agree that Mr. Gulliford never

moved, opened his mouth to express his opinion in a

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

12, 13 and 14.)

An accurate summary of the pertinent parts of the

police reports can be found in Gulliford I, 136 F.3d 1345,

1350 (9th Cir.), cert. denied, 525 U.S. 828 (1998), at n. 7.

Ex. 10 shows a group of approximately fifteen peo-

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

whom made a physical move toward the deputies, and

none of whom was threatening the officers.

oe

In actual fact, the most threatening behavior pre-

sented that night occurred when the officers were physi-

cally beating Mr. Gulliford, and this crowd of mostly

middle-aged people shouted promises to call their respec-

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

ing thought, but certainly not a crime.

J.D. was never arrested (that night or at a later date),

neither Mr. Gulliford nor videographer Bray was ever

charged with a crime, much less convicted of one, and

even the beachfire which seemed to be of such concern

was allowed to burn itself out the next day.

II. PROCEDURAL HISTORY

Plaintiff Gulliford originally brought an action in

Pierce County (Washington) Superior Court. Following a

voluntary non-suit, this action was filed in the United

States District Court for the Western District of Washing-

ton at Tacoma. (CR 1.)

A jury trial was held, with the jury instructed that if

Gulliford’s words so much as delayed the officers, he was

guilty of obstruction and there was probable cause for his

arrest. (CR 146, Instruction 15, paragraph 5.)* The jury

found for Defendant Thrash. (CR 148.) An appeal was

taken ta the Ninth Circuit Court of Appeals. (CR 158.)

4 The remaining paragraphs of this lengthy jury instruction

were correct statements of the law and were expressly not

appealed.

a ia a

The verdict was overturned based upon the incorrect

statement of law in the jury instruction. One judge dis-

sented, although he agreed that the instruction at issue

was incorrect. His dissent was based upon his belief that

Gulliford had not adequately preserved his objection to

the relevant instruction.

The dissenting judge did not reach the issue of quali-

fied immunity. The majority ruled that Deputy Thrash

had not adequately preserved his objection to the district

court Judge’s denial of his request for qualified immunity,

although they stated that even if the proper procedures

had been followed, it did not appear that the district

court erred in denying qualified immunity to the officer.

(Pet. App. A.)

Thrash’s requests for rehearing and rehearing en

banc were denied, and not a single judge of the circuit

requested that a vote be taken as to whether to rehear the

case en banc. (Pet. App. B.)

The case returned to the district court for a second

trial presided over by a different judge. This judge used a

slightly different jury instruction, but the instruction still

did not reflect that Gulliford’s words were not “fighting

words” as a matter of law, as the Ninth Circuit had ruled. |

(CR 301, Instruction 16.) The judge also allowed instruc-

tions regarding “other crimes” Gulliford was now alleged

to have committed. (CR 301, Instruction 10.) (After hav-

ing listened to three weeks of testimony, the judge in the

first trial had already ruled that the jury was not allowed

to consider these so-called “other crimes”.) The second

jury also found for Deputy Thrash. (CR 302.)

- =

Plaintiff Gulliford again appealed based upon the

incorrect jury instruction, the reintroduction of allega-

tions of “other crimes”, and the judge’s failure to direct a

verdict on liability. (CR 307.)

In an unpublished memorandum,° two of the three

judges ruled that the jury instruction was again a mis-

statement of the law, that the law of the case doctrine

should have prevented the reintroduction of allegations

of “other crimes” supposedly committed by Gulliford,

and ruled that the district court judge should have

directed a verdict on liability as no properly instructed

jury could have found that Gulliford’s words were a

crime, and that the defendants could present no other

viable basis to support a finding of probable cause to

arrest the plaintiff. (Pet. App. C.)

The third judge agreed that the jury instruction was a

misstatement of the law, but believed that the jury should

have been able to consider “other crimes” which the

defendant now alleged Gulliford had committed.

However, the dissenting judge waived his right to

have the opinion published,® and while voting for rehear-

ing by the original panel, he voted to reject Thrash’s

petition for rehearing en banc. Not a single judge of the

circuit asked that a vote be taken as to whether to rehear

the case en banc. (Pet. App. D.)

¢

5 Petitioner Thrash did not make a request pursuant to

Ninth Circuit Rule 36-4 to have this memorandum published.

6 See Ninth Circuit Rule 36-2(g).

REASONS FOR DENYING WRIT

I.

THE CORRECT PROCEDURE FOR SEEKING REVIEW

OF A DENIAL OF QUALIFIED IMMUNITY WAS NOT

AT ISSUE IN THIS DECISION

A. Qualified Immunity Is Not Even Mentioned In

This Unpublished Memorandum

In raising the issue of the correct procedure for claim-

ing qualified immunity on appeal, it appears that Peti-

tioner Thrash is referring to the published opinion in

Gulliford I, not to the unpublished memorandum from

Gulliford II. Qualified immunity was not an issue in the

second trial of this matter, the phrase “qualified immu-

nity” was never mentioned in Thrash’s brief to the Ninth

Circuit in Gulliford II, and it is not mentioned at all in the

decision of the Ninth Circuit in Gulliford II.”

By again raising qualified immunity in his first and

second questions posed to this Court, Petitioner has, in

effect, asked this Court for a rehearing of its denial of nis

petition for writ of certiorari in Gulliford I. . . more than

one thousand days after this Court denied his petition.®

7 The Petitioner originally asked the district court for a

decision granting him qualified immunity on October 19, 1995

(CR 27.) This was denied by the district court on December 15,

1995. (CR 77.) The Ninth Circuit rejected Thrash’s claim of

qualified immunity in its opinion in Gulliford I on February 27,

1998. (Pet. App. A.) This court denied his petition for writ of

certiorari on October 5, 1998. (Respondent’s Appendix in this

volume.)

8 S.Ct. Rule 44.2 states, in pertinent part: “Any petition for

the rehearing of an order denying a petition for writ of

aaa 7

B. This Court Acted Correctly When It Denied

Certiorari In Gulliford I In 1998

Qualified immunity is “an immunity from suit rather

than a mere defense to liability; and like an absolute

immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511,

526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). “In a suit

against an officer for an alleged violation of a constitu-

tional right, the requisites of a qualified immunity

defense must be considered ir proper sequence. Where

the defendant seeks qualified immunity, a ruling on that

issue should be made early in the proceedings so that the

costs and expenses of trial are avoided where the defense

is dispositive.” Saucier v. Katz, 533 U.S. __ (2001).

The first step in the analysis of qualified immunity

claims is to determine whether the facts, as alleged by the

non-moving party, would show that a constitutional right

was violated. Gulliford alleged that he was arrested for

nothing more than uttering one sentence of verbal criti-

cism to the police, which violated his First Amendment

right to free speech.

The second step in the analysis is to determine

whether the constitutional right which has been identi-

fied is “clearly established”. The right to verbally criticize

certiorari. . . shall be filed within 25 days after the date of the

order of denial’. . . , but its grounds shall be limited to

intervening circumstances of a substantial or controlling

grounds not previously presented. The petition shall be

presented together with certification of counsel . . . that it is

restricted to the grounds specified in this paragraph and that it

is presented in good faith and not for delay[.]”

10

our public officials without thereby risking arrest has

been clearly established since at least 1949. See Terminiello

v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896-97, 93 L.Ed. 1131

(1949); Lewis v. City of New Orleans, 415 U.S. 130, 132-134,

94 S.Ct. 970, 971-973, 39 L.Ed.2d 214 (1974); City of

Houston, Texas v. Hill, 482 U.S. 451, 461-463, 107 S.Ct. 2502,

2509-11, 96 L.Ed.2d 398 (1987); Duran v. City of Douglas,

904 F.2d 1372, 1377-78 (9th Cir. 1994); Mackinney v.

Nielsen, 69 F.3d 1002, 1006-07 (9th Cir. 1995).

Petitioner raises the procedural issue of when and

how differing circuits require defendants to appeal from

a denial of qualified immunity. He cites Powell v. Schriver

I, 175 F.3d 107 (2nd Cir. 1999). In Powell I, the Second

Circuit did not require an official to appeal from the

denial of qualified immunity by the district court.

Powell I, which apparently has not been reviewed by

this Court, was decided six months after certiorari was

denied in Gulliford I. :

In the procedures used by the Ninth Circuit, defen-

dants who have been denied qualified immunity by the

district court should immediately appeal the decision in

order to prevent a trial from going forward. If the defen-

dant waits until the completion of a trial of the matter, he

should cross-appeal the district court’s denial of qualified

immunity if he expects to expand his rights on appeal

and prohibit a second trial from taking place in the event

the verdict would otherwise be reversed on separate

grounds. Gulliford I, 136 F.3d 1345, 1351 (9th Cir.), cert.

denied, 525 U.S. 828 (1998).

The Second Circuit procedures allow the defendant

who has been denied qualified immunity by the district

11

court to use qualified immunity as a defense to liability

on review without filing a cross-appeal. This not only

flies in the face of the decision in Mitchell v. Forsyth, 472

U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (quali-

fied immunity is an immunity from suit rather than a

mere defense to liability), but it encourages parties to go

through the costs and expenses of needless trials. If an

officer truly could not have known that his behavior

would violate a right, an action should not proceed to

trial.

Yet even if this Court prefers the procedural require-

ments of the Second Circuit over those of the Ninth

Circuit, the issue would be moot for two reasons. First,

this Court has already reviewed the decision in Gulliford I

and denied certiorari, and secondly, the right allegedly

violated in this case was so clearly established decades

before Gulliford was arrested for his speech that the

procedural requirements of any circuit would be irrele-

vant to the final decision on qualified immunity.

II.

THE FEDERAL AND STATE COURT PRECEDENTS IN

THIS MATTER ARE IDENTICAL

A. The Decision In Gulliford I Was Reviewed

Three Years Ago

As discussed in Section I.A. of this brief in opposi-

tion, qualified immunity is not properly before this

Court.

12

Furthermore, Petitioner’s Question 2 in this petition

is virtually identical to his Question 2 in Gulliford I, as to

which this Court denied certiorari three years ago.

e Text of Question 2 in Gulliford II (2001):

“In determining when First Amendment

rights are ‘clearly established’ for qualified

immunity purposes, should federal courts

give full faith and credit to precedent of the

officer’s home state that upholds similar

arrests against similar constitutional chal-

lenges?”

e Text of Question 2 in Gulliford I (1998):

“Where a Circuit Court interprets certain

police conduct as unconstitutional but a state

court upholds it under the same federal pro-

vision, do police of that state violate ‘clearly

established’ rights and lose their qualified

immunity by relying on their state court’s

precedent?”

S.Ct. Rule 14.1(a) states, in pertinent part, that “The

statement of any question presented is deemed to com-

prise every subsidiary question included therein.” Peti-

tioner has asked this Court to consider the same question

twice, three years apart, and it pertains to an issue not

even raised in the decision currently being reviewed.

B. Qualified Immunity Does Not Protect Officers

From Behavior Which Is Clearly Established To

Be Unconstitutional

Assuming arguendo that the Petitioner’s procedural

problems are overlooked by this Court, Petitioner poses

an interesting question: whether Circuit Courts of

13

Appeals must give full faith and credit to decisions of

state courts when those decisions interpret the same fed-

eral provision differently from the federal courts.

However, this question has no relation at all to the

decision in Gulliford I.9 The state court precedent, State v.

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

the federal precedents, including Mackinney v. Nielsen, 69

F.3d 1002, 1006-07 (9th Cir. 1995); Duran v. City of Douglas,

904 F.2d 1372, 1377-78 (9th Cir. 1994); City of Houston,

Texas v. Hill, 482 U.S. 451, 461-463, 107 S.Ct. 2502, 2509-11,

96 L.Ed.2d 398 (1987); Lewis v. City of New Orleans, 415

U.S. 130, 132-134, 94 S.Ct. 970, 971-973, 39 L.Ed.2d 214

(1974); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894,

896-97, 93 L.Ed. 1131 (1949); and so many others.

Contrary to Petitioner’s representation, in Lalonde the

officers had already been physically attacked twice by

other party-goers. Lalonde persisted in physically

approaching the officers, was repeatedly told to get back,

was physically pushed back, and when he physically

approached yet again, was arrested.

In upholding a guilty verdict against Mr. Lalonde for

Obstructing a Public Servant, the Washington State Court

of Appeals wrote in State v. Lalonde, 35 Wn.App. 54, 61,

665 P.2d 421 (1983): “Lalonde’s offense did not arise from

his speech, but from the acts which accompanied his

words.”

Even while refusing to examine the issue of qualified

immunity because of Appellee’s failure to cross-appeal,

9 The issue is not even mentioned in Gulliford II.

14

the Court of Appeals in Gulliford I noted that the right to

verbally question the actions of police was “sufficiently

clear” so that a reasonable officer could understand that

he or she was violating the right. Gulliford I, 136 F.3d

1345, 1351 (9th Cir.), cert. denied, 525 U.S. 828 (1998).

Pre-existing Washington State and federal law, dating

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

crime, and “the freedom of individuals verbally to

oppose or challenge police action without thereby risking

arrest is one of the principal characteristics by which we

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

Houston, Texas v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502,

2510, 96 L.Ed.2d 398 (1987).

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

which reinforced that speech alone was not a crime and _

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

nine years before Mr. Gulliford was arrested.

The Ninth Circuit Court of Appeals ruling in Gul-

liford I directly complies with, and reinforces, the Wash-

ington State Court of Appeals’ decision in State v. Lalonde,

that only acts may be criminalized, not speech alone.

Petitioner cites dicta from a footnote to City of

Houston, Texas v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502,

2510, 96 L.Ed.2d 398 (1987) to support his case. (Pet. 13.)

Yet even this footnote dicta supports Mr. Gulliford’s posi-

tion. He did not run alongside an officer chasing a fleeing

felon, or persistently try to engage an officer in conversa-

tion who was attempting to direct traffic at a busy inter-

section. Mr. Gulliford never moved, verbally expressed

his opinion in a single sentence, and was immediately

arrested.

tt

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Deputy Thrash cites several cases, including U.S. v.

Brice,\926 F.2d 925 (9th Cir. 1991), which have facts too

dissimilar to the events in Gulliford to be useful.

The Petitioner claims that the Ninth Circuit failed to

look at the context of the events in determining whether

the right which was violated was “clearly established”.

He cites Anderson v. Creighton, 483 U.S. 635, 97 L.Ed.2d

523, 107 S.Ct. 3034 (1987), and Saucier v. Katz, 533 o: Se

(2001). (Pet. 11-12.)

Although Saucier v. Katz is a Fourth Amendment ca

rather than a First Amendment case, the principal that

actions must be looked at in the context of events remains

true. (See also Anderson v. Creighton, 483 U.S. 635, 640-41, ~

107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).) In the case at bar,

this is exactly what occurred. The Ninth Circuit, in Gul-

liford I, 136 F.3d 1345, 1350 (9th Cir.), cert. denied, 525 U.S.

828 (1998), stated that “[t]he facts before us are indis-

tinguishable from those in Hill and its progeny.”, citing

City of Houston, Texas v. Hill, 482 U.S. 451, 465-67, 107

S.Ct. 2502, 2511-13, 96 L.Ed.2d 398 (1987). The court

stated that even if Thrash had correctly appealed the

denial of qualified immunity by the district court, “it

does not appear that the district court erred in denying

the officials qualified immunity.” Gulliford I, 136 F.3d

1345, 1351 (9th Cir.), cert. denied, 525 U.S. 828 (1998). The

court went on to quote Mackinney v. Nielsen, 69 F.3d 1002,

1007 (1995):

“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

16

should have known that Mackinney was simply

exercising that right.”

Petitioner again attempts to convince this Court to

decide a question which is not related to the facts or the

law of this case, and which is not even raised in Gulliford

I] — the decision currently being reviewed. Mr. Gulliford

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

and federal, are completely consistent on this issue -

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

actions, is not a crime. |

Ill.

WHEN PLAINTIFF DID NOTHING BUT SPEAK AND

HIS SPEECH WAS PROTECTED BY THE FIRST

AMENDMENT, THE NINTH CIRCUIT WAS CORRECT

IN DIRECTING A VERDICT OF LIABILITY

A. The Petitioner Is Rearguing Facts Which Were

Already Reviewed By This Court

Petitioner’s Question 3 in this petition misstates the

same facts as his Question 1 in Gulliford I, as to which this

Court denied certiorari three years ago.

e Text of Question 3 in Gulliford II (2001):

“May the Ninth Circuit, under the guise of

the ‘law of the case’ and by preempting a

jury’s fact finding role, direct liability against |

a police officer because the arrestee accom-

panied his unlawful act with First Amend-

ment speech?” |

e Text of Question 1 in Gulliford I (1998):

“Where a suspect verbally opposes police

while at the same time he physically commits

me geaen —

<x

17

a crime, does the First Amendment overcome

the Fourth Amendment to shield him from

arrest?”

Petitioner Thrash continues to insist that Gulliford

committed physical acts in addition to lawfully verbaliz-

ing his opinion. Yet the panel in Gulliford I, 136 F.3d 1345,

1350 (9th Cir.), cert. denied, 525 U.S. 828 (1998), stated that

“that is all that Gulliford did - he spoke.” The district

court judge in Gulliford I, after hearing three weeks of

testimony, precluded the jury from considering “other

crimes” that the defendant was alleging Gulliford had

committed. The videotape (Ex. 10) clearly shows that the

first lawful order to disperse was issued after Gulliford

was already under arrest.!°

The Petitioner continues to misstate the facts of this

case in order to manufacture a question which may be of

interest to this Court. Even the state statute at issue in

this matter was incorrectly quoted to this Court.

B. The Defendant Presented No Viable Basis For

Probable Cause To Arrest Gulliford

At page 20 of his petition, Thrash states that “this

decision . . . essentially holds probable cause to arrest for

10 Although not precedent in this case, in the prior state

court proceeding in this matter, Pierce County (Washington)

Superior Court Judge Karen Strombom denied Thrash’s Motion

for Partial Summary Judgment, stating, “I don’t see that saying,

‘This party is over,’ is an order to disperse, and it seems to me

you can’t have people guess what an officer is telling them and

then find probable cause for arrest if you're saying, ‘The party is

over.’ ”

18

obstructing an officer does not exist if accompanied by

First Amendment speech[.]” To the contrary — the Ninth

Circuit correctly found in both Gulliford I and Gulliford II

that the Respondent’s only “act” was his speech. His

speech was protected by the First Amendment.

Thrash accuses the Ninth Circuit of an “outcome

oriented abuse of appellate authority.” (Pet. 22.) He

claims that this is so because the appellate panel rejected

his blanket assertion that applying the law of the case

doctrine would create a manifest injustice. As the first

lawful order to disperse was issued after Gulliford was

already under arrest, (“Disperse, disperse, that’s once,

—__you’ve been warned.” (Ex. 10)), the only “manifest injus-

tice” which occurred was when the second trial judge

ignored the rulings of the original trial judge.

The Petitioner appears to find significance in the fact

that Gulliford did not object to the inclusion of a jury

instruction in Gulliford II pertaining to Failure To Dis-

perse. (Pet. 22, n. 3.) Prior to the second trial of this

matter, Gulliford brought motions in limine and provided

the district court with extensive briefing in an attempt to

prevent discussion of “other crimes” which had previ-

ously been excluded from the case. The district court

refused to follow the law of the case doctrine, and

allowed testimony and discussion of these other alleged

“crimes”. At that point, and having fully preserved his

objections to the district court’s decision, Gulliford’s only

remedy was to try to present the jury with a correct and

detailed instruction regarding Failure To Disperse. This

request was also denied by the second trial judge.

aerate

Foal

19

At Pet. 23, Deputy Thrash actually claims, “[P]laintiff

meant to obstruct officers in their lawful efforts[.]”

(Emphasis added.) He then cites a plethora of transcript

pages which are devoid of any evidence that Mr. Gul-

liford “meant to obstruct” the officers.1}

In alleging that Gulliford’s words were a “true

threat”, Petitioner cites United States v. Orozco-Santillan,

903 F.2d 1262 (9th Cir. 1990), and United States v. Gilbert,

884 F.2d 454 (9th Cir. 1989).

In Orozco-Santillan, the defendant told the officer

“take these handcuffs off and I'll kick your fucking ass”,

11 Deputy Thrash includes in his Appendix 74 pages of

snippets of testimony, a few questions and answers at a time,

implying that these accurately represent the body of the

testimony taken during three weeks of trial in Gulliford I and

another week of trial in Gulliford II. Pursuant to S.Ct. Rule 15.2,

Respondent Gulliford specifically states that these wisps of

transcripts are misleading and obviously incomplete. The only

remedy which Gulliford could use to respond to this unfair and

misleading ploy would be to include the full transcripts of both

trials, yet this would be in violation of S.Ct. Rule 14.1(i). Suffice

it to say that the Ninth Circuit was in possession of the complete

record in formulating its decisions in both Gulliford I and

Gulliford II.

The Petitioner also includes sixteen selected pages from his

Ninth Circuit “Brief of Appellees” in Gulliford I]. Many

additional arguments and averments are contained in these

pages which cannot be argued against within the page limits

provided by this Court for briefs in opposition. (See S.Ct. Rule

33.1(g)(ii).) In fact, adding the sixteen pages of additional

briefing to the 27 pages contained in his petition for writ of

certiorari, the Petitioner has managed to submit 43 pages of

argument. Respondent Gulliford will merely issue a blanket

statement that the extraneous briefing contains numerous

misstatements of fact, law and the proceedings below.

20

and “you motherfucker, you will pay for this.” United

States v. Orozco-Santillan, 903 F.2d 1262, 1264 (9th Cir.

1990).

In Gilbert, the defendant drove an automobile at a

black child, verbally threatened a white male who has a

black step-brother, ordered his dog to attack a black child,

and spat in the face of a mentally retarded black child.

United States v. Gilbert, 813 F.2d 1523, 1525 (9th Cir. 1987).

Compare the facts of these cases with Mr. Gulliford’s

words in response to Deputy Thrash’s statement, “I’m

tired of this. This is a waste of government... . ”

Gulliford stated, “Then why don’t you hop on the ferry,

hop on the ferry and go back.” Petitioner’s citations only

serve to highlight the innocuous content and context of

Gulliford’s speech.

To fall outside of First Amendment protection, a

statement must be a “true threat”, meaning that “a rea-

sonable person would foresee that the statement would

oe interpreted by those to whom the maker communi-

cates as a serious expression of intent to harm or assault.”

See Lovell v. Poway Unified Schoel Dist., 90 F.3d 367, 372

(9th Cir. 1996) (quoting United States v. Orozco-Santillan,

903 F.2d 1262 (9th Cir. 1990)). A threat has been defined

as “an expression of an intention to inflict evil, injury, or

damage on another.” United States v. Gilbert, 884 F.2d 454,

457 (9th Cir. 1989).

Gulliford’s words were not a threat as a matter of

law, and the Ninth Circuit decision in Gulliford II cor-

rectly dispensed with Petitioner’s grasping assertions

that they were.

——aOOO tO

21

The Petitioner has attempted to change Gulliford’s

speech into physical acts, and his simple words into a

threat. He then uses the resulting misstatements of fact

and law to try to impugn the decisions of the Ninth

Circuit. As the full panel of judges of that court have

resoundingly stated — twice — by their refusal to even ask

for a vote as to whether to rehear this matter en banc,

Petitioner’s attempts to change the unfortunate facts of

this case have been unsuccessful.

+

CONCLUSION

\

Two of the Petitioner’s questions regard qualified

immunity, a subject which was not even mentioned in the

decision in Gulliford I]. The remaining question reargues

facts which have been thoroughly reviewed by two Ninth

Circuit panels and this Court.

These manufactured questions are not worthy of this

Court’s attention, and the Petitioner’s bravado in

attempting to trick this Court into rehearing a petition for

writ of certiorari which it denied three years ago should

be strongly repudiated by this Court.

Anyone old enough to have had the misfortune to

break an old-fashioned glass thermometer will remember

the frustration and futility of attempting to pick up the

spilled mercury. It presented a moving and malleable

target which defied all efforts to gain control over it.

So this case, with its ever-changing and reappearing

defenses and allegations, has frustrated the efforts of the

plaintiff, the district and circuit courts, and even this

22

Court which is now being asked to reexamine questions it

has previously ruled upon. The decision of the Court of

Appeals in Gulliford II should finally bring resolution to

this matter by laying out firm guidelines for the district

court to follow in reaching a just conclusion after almost

seven years of federal litigation.

Respondent Gulliford respectfully requests that the

petition for writ of certiorari be denied.

Dated: October 12, 2001

Respectfully submitted,

Diana LYNN KIESEL* Jort A. FELDMAN

424 Broadway 14706 Union Avenue S.W.

Tacoma, WA 98402 Lakewood, WA 98498

253.274.1196 253.582.6109

Counsel for Respondent

* Counsel of Record

App. 1

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D. C. 20543

October 5, 1998

Ms. Diana Lynn Kiesel

14706 Union Avenue, S.W.

Lakewood, WA 98498

RE: Paul Thrash

v. Herbert Gulliford

No. 97-2082

Dear Ms. Kiesel:

The court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

/s/ William K. Suter

William K. Suter, Clerk