# Opposition Brief — Thrash v. Gulliford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2446%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2001 - **Citation:** 534 U.S. 1020 ## Text 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 + 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NOT AT ISSUE IN THIS DE pec cee vee cscceeistavakawedeasahcs te 8 A. Qualified Immunity Is Not Even Mentioned In This Unpublished Memorandum....... 8 B. This Court Acted Correctly When It Denied Certiorari In Gulliford I In 1998........... 9 II.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 YG 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 —