Reply Brief — Thrash v. Gulliford

NO. 01-430

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 2001

DEPUTY PAUL THRASH, ~

Petitioner/Appellee,

Wis

HERBERT GULLIFORD.

Respondent/Appellant

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

REPLY TO BRIEF IN OPPOSITION

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

TABLE OF CONTENTS

A. Qualified Immunity Warrants

Grant of Petition ;

B. Assumption of Jury Role

Warrants Certiorari

Il. CONCLUSION

10

TABLE OF AUTHORITIES

Table of Cases

Anderson v. Creighton, 483

U.S. 635, 640-41, 97 L.Ed.2d

§23, 107 S.Ct. 3034 CISRT) unc cece sustnisassbucns

Barber v. Tennessee, 513

U.S. 1184, 130 L.Ed.2d 1139,

115 8.Co. 1977 C1988)... co cadee esse cea

_v. Los Angeles County, Cal.,

482 U.S. 304, 325 n. 3, 96

L.Ed.2d 250, 107 S.Ct. 237B (SCT) oo cccccsssesacs

136 F.3d 1345, 1351 (9th Cir.

Gulliford v. Thrash, 2001 WL

427285 * 3 (9th Cir. Apr. 25,

Hamilton-Brown Shoe Co.

v. Wolf Bros. & Co., 240

~ US. 251, ZBI) na ccc ys sibs ee bu ca tcepanateen

Jordan v. Duff & Phelps, Inc..

815 F.2d 429, 439 (7th Cir. 1987),

cert. dismissed 485 U.S. 901 (1988) ..............-..

ihe

1996)... vckednseaneuseune one eee ye

2001)(Fisher, J., dissenting) .............-. 1,2, 4,5,9

_Bangor & Aroostock R. Co.,

EE ST ss bicasschswasedesees 5

Massachusetts Mut. Life

_Ins. Co. v. Ludwig, 426 U.S.

479, 480, 48 L.Ed.2d 784, 96

| EO eT errr errr errr Tere 2

McGoldrick v. C

_Generale, 309 U.S. 430, 434,

Oe ee, Bee, GO S.Ct GTOCISED) .. nc cc ccc ccc ncce 3

Powell v. Schriver, 175

fe Me aw” Ce Re) rr 3,6

Ross v. Moffitt, 417 U.S.

ee sy tk en en bse din eao:s 5

Sims v. Mulchahy, 902 F.2d

524, 545 (7th Cir.), cert.

Beted G96 US. GFT (IFIO) oo wc ccc ccc cecccees 3

320 U.S. 763 (1943)(cert.

denied), 322 U.S. 723

(denial vacated and certiorari

granted), 323 U.S. 134 (1944) ...........- eee eee 6

State v. LaLonde, 35 Wn.App.

eS ere ree 6,7

United S

_Railway Express Co., 265 U.S.

425, 435, 68 L.Ed. 1087, 44

ES ee er ee 3

United States v. Carver,

260 U.S. 482, 490, 43 S.Ct.

(i vg Oe EL, | eros eee re 4,8

2001 WL 880848 * 7

iad FS ics cia innecideciee ee 9

Court Rules

Gk Se WE ss bb ooo Kanes s RA hoe eee 8

ee S| err rere ry rer eer ree 8, 10

Other Authority

15A Charles A. Wright &

Arthur R. Miller,

Federal Practice and Procedure

SE rrr errant 5

«iY =

I. RESPONDENT'S STATEMENT OF CASE UNHELPFUL

In setting out his differing "statement of the case," re-

spondent Gulliford not only fails to disclose what “difference”

his version makes but also asks the Court to accept his mere

characterizations of facts rather than provide any part of the ac-

tual record. See e.g. Br. In Opp., at 2-5, 17, 19. On the other

hand, respondent dismisses Deputy Thrash's ample evidentiary

support by arguing such are "snippets of testimony" and "wisps

of transcripts" that in some unexplained ona "are misleading

and obviously incomplete." Id. at p. 19 n. 11. Respondent’s

exclusive reliance on characterizations rather than the record

concedes that if the record is actually examined it can only be

concluded -- as did two juries, two district court judges and the

dissenting Ninth Circuit judge in the case below -- that “proba-

ble cause to arrest could properly have been found based on

Gulliford’s failure to disperse ....”' Gulliford v. Thrash,

' Indeed, even the Ninth Circuit majority here never de-

nied the presence of probable cause for failure to disperse,

but simply ignored its presence by misapplying the “law of

a

2001 WL 427285 * 3 (9th Cir. Apr. 25, 2001)(Fisher, J., dis-

senting).

Il. REASONS WHY CERTIORARIIS APPROPRIATE

A. Qualified Immunity Warrants Grant of Petition

Respondent does not dispute that the Ninth Circuit ma-

jority rejected petitioner’s claim of qualified immunity on the

ground he had waived it by failing to cross appeal his own suc-

cessful defense verdict. Gulliford v. Pierce County, 136 F.3d

1345, 1351 (9th Cir. 1998). Respondent does not contest that

in contrast this Court holds as an "inveterate and certain" rule,

Massachusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479,

480, 48 L.Ed.2d 784, 96 S.Ct. 2158 (1976), that an “appellee

may, without taking a cross-appeal, urge in support of a decree

any matter appearing in the record, although his argument may

involve an attack upon the reasoning of the lower court or an

insistence upon matter overlooked or ignored by it." Id. (quot-

the case doctrine.” See Pet. at 20-23; Gulliford v. Thrash,

2001 WL 427285 * 3 (9th Cir. Apr. 25, 2001).

<,

ing United States v. American Railway Express Co., 265 U.S.

425, 435, 68 L.Ed. 1087, 44 S.Ct. 560 (1924))(emphasis

added). See also First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, Cal., 482 U.S. 304, 325 n. 3,

96 L.Ed.2d 250, 107 S.Ct. 2378 (1987); McGoldrick v. Com-

pagnie Generale, 309 U.S. 430, 434, 84 L.Ed. 849, 60 S.Ct.

670 (1940).

Indeed, plaintiff expressly acknowledges that the Ninth

Circuit majority's opinion in this case also is in conflict with

decisions of other United States court of appeals on the same

important matter. Br. In Opp., at 10-11. See also Powell v.

Schriver, 175 F.3d 107, 113 (2nd Cir. 1999)(second circuit

holds where “judgment entered was entirely in [the officer’s]

favor,” an “appellee may, without taking a cross-appeal, urge

in support of a decree any matter appearing in the record, al-

though his argument may involve an attack upon the reasoning

of the lower court or an insistence upon matter overlooked or

ignored by it.”); Sims v. Mulchahy, 902 F.2d 524, 545 (7th

ite

Cir.), cert. denied, 498 U.S. 897 (1990)(quoting Jordan v. Duff

& Phelps, Inc., 815 F.2d 429, 439 (7th Cir. 1987), cert. dis-

missed 485 U.S. 901 (1988))(seventhcircuit holds it “improper

and unnecessary” for prevailing officer to cross appeal his de-

fense verdict because “[c]ross-appeals for the sole purpose of

making an argument in support of the judgment are worse than

unnecessary.) Rather, respondent argues the qualified im-

munity “issue is moot” because “this Court has already re-

viewed the decision in Gulliford I and denied certiorari, and se-

condly, the-right allegedly violated in this case was . . . clearly

established . .. .” Br. In Opp., at 11.

As to the denial of certiorari after the Ninth Circuit ma-

jority’s first reversal, it is a well “settled proposition that this

Court's denial of certiorari does not constitute a ruling on the

merits,” Barber v. Tennessee, 513 U.S. 1184, 130 L.Ed.2d

1139, 115 S.Ct. 1177 (1995)(citing United States v. Carver,

260 U.S. 482, 490, 43 S.Ct. 181, 67 L.Ed.-361 (1923)), and as

one authority has noted in criticizing Gulliford -- where quali-

os

fied immunity “was properly preserved at the first trial, . . ., it

would remain open at the new trial.” See 1SA Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure §

3904 n. 14 (supp. 2001). Further, the denial of certiorari “is

discretionary and depends on numerous factors other than the

iv j we view,”

Ross v, Moffitt, 417 U.S. 600, 616-17 (1974), so that a lack of

finality may “of itself alone” furnish “sufficient ground for the

denial of the application.” Hamilton-Brown Shoe Co. V. Wolf

Bros. & Co., 240 U.S. 251, 258 (1916). See also Locomotive

Firemen v. Bangor & Aroostock R. Co., 389 U.S. 327, 328

(1967)(denying certiorari “because the Court of Appeals re-

manded the case [and thus it] is not ripe for review by this

Court.”) Here, the Ninth Circuit’s first reversal “remand[ed]

for a new trial on this claim” of unlawful arrest, see 136 F.3d

at 1350, but now that same majority rules that a “directed ver-

dict should have been granted” leaving no issue of liability to

be decided. See 2001 WL 427285 * 3. Finally, as respondent

is

notes, the second circuit’s conflicting decision in Powell v.

Schriver “was decided six months after certiorari was denied,”

Br. In Opp., at 10, and this Court will deny certiorari but then

grant it later when -- as here -- a conflict between circuits sub-

sequently arises. See e.g. Skidmore v. Swift & Co., 320 U.S.

763 (1943)(cert. denied), 322 U.S. 723 (denial vacated and ie

tiorari granted), 323 U.S. 134 (1944)(reversal of lower court

decision. )

Second, as to the merits of qualified immunity here, re-

spondent does not contest that the applicability of state pre-

cedent for qualified immunity has yet to be decided and peti-

tioner well documents how the Ninth Circuit here ignored both

federal precedent as well as the more pertinent precedent of the

deputy’s state court. See Pet., at 11-19. Respondent's discus-

sion of petitioner’s cited federal and state precedent (Br. In

Opp., at 13-16) neither fairly distinguishes those cases’ nor

2 For example, respondent argues that in State v. La-

Londe, 35 Wn.App. 54, 665 P.2d 421 (1983) “officers had

already been physically attacked twice by other party-goers”

zz

justifies the Ninth Circuit’s refusal even to consider them ra-

ther than inadequately “assert[] that a general right [defendant

] was alleged to have violated . . . was clearly established.”

Compare Anderson v. Creighton, 483 U.S. 635, 640-41, 97 L.

Ed.2d 523, 107 S.Ct. 3034 (1987) with 136 F.3d at 1351.

Hence, qualified immunity is not “moot” and a writ of

certiorari is appropriate because the Ninth Circuit not only “has

entered a decision in conflict with the decision of another Uni-

ted States court of appeals on the same important matter,” but

and “LaLonde persisted in physically appraoaching the offi-

cers, was repeatedly told to get back, was physically pushed

back, and when he physically approached again, was arrest-

ed.” Br. In Opp., at 13. Here, too, the lives of officials and

citizens repeatedly had been threatened by other party-goers,

136 F.3d at 1347;-App. M at 1-2, 4-8; App. Q at 2-3; App. T

at 1-2, the crowd of which Gulliford was a member repeat-

edly had been ordered to go‘home, 136 F.3d at 1347; App. I

at 2-4; App. J at 2-3; App. K at 2-5, 7-9, App. M at 4-9;

App. N at 1-2, 5; App. P at 2-3, 6-11; App. Q at 3-4; App. R

at 1-2; App. S at 1, and Gulliford nevertheless persisted both

in physically remaining and in verbally making clear to the

officers his intent to remain despite their lawful orders. 136

F.3d at 1347; App. I at 3; App. M at 10-17; App. N at 7;

App. O at 1-3; App. P at 3-5; App. Q ai 4-5; App. R at 3-4;

App. S at 2; App. T at 2, 5-6.

ee

“has decided an important question in a way that conflicts with

relevant decisions of this Court.” See S.Ct. Rule 10(a) and (c).

B. Assumption of Jury Role Warrants Certiorari

Petitioner somehow asserts the question of the Ninth

Circuit majority’s preemption of the previous and any future

jury by directing liability somehow was addressed by this

Court and in any case was warranted. Br. In Opp., at 16-21.

However, apart from the fact that this Court’s previous denial

of certiorari under different circumstances was not a ruling on

the merits, see Carver, 260 U.S. at 490, the Ninth Circuit ma-

jority in its first reversal had not ordered a directed verdict nor

addressed the “law of the case” doctrine and therefore those

issues obviously were not previously capable of being raised

to or decided by this Court.

Further, as to the Ninth Circuit majority’s directing of

a verdict on the ground there was no probable cause to arrest,

respondent provides nothing to dispute such impropriety other

than his characterization of evidence that he conveniently

~

*

chooses not to present to the Court. Indeed, respondent ig-

nores that two juries, two district court judges and a member

of the circuit court’s own panel concluded from the entire re-

cord that under the evidence at trial “probable cause to arrest

could properly have been found based on Gulliford’s failure to

denne ....” 2001 WL 427285 * 3 (Fisher, J., dissenting).

Nowhere does respondent address the basic issue that the Ninth

Circuit in Gulliford, and thereafter in reliance on Gulliford,

“has arrogated to itself the making of [the] finding” of the

“quintessential factual inquiry” of whether words and expres-

sive conduct under the circumstances are accompanied by ille-

gal acts or are themselves true threats. See United States v.

Poocha, 2001 WL 880848 * 7 (Aug. 7, 2001)(Tashima, J., dis-

senting).

Hence respondents have done nothing to dispute that the

manner in which the Ninth Circuit majority directed liability

against Deputy Thrash so far departs from the accepted and us-

ual course of judicial proceedings -- and continues to be used

=

to justify similar departures in other cases -- as to call for an

exercise of this Court’s supervisory power. See S.Ct. Rule 10

(c).

Respondent accentuates the vacuity of his opposition by

his unfortunate and baseless resort to accusing petitioner of

“misstat[ing] the facts of hie case in order to manufacture a

question which may be of interest to this Court,” and of “bra-

vado in attempting to trick this Court into rehearing a petition

for writ of certiorari which it denied three years ago.” Br. In

Opp., at 17 & 21. Any review of the law and record however

‘not only quickly refutes such inappropriate and intemperate

rhetoric, but justifies this Court in granting certiorari to remedy

the Ninth Circuit’s demonstrated errors concerning important

federal questions and to avoid an improper appellate imposi-

tion of personal liability upon this police officer -- and other

officers in the future -- whom two juries, two district court

x"

judges and a circuit court judge have all found lawfully per-

formed his duty.

DATED THIS 'UDAY OF OCTOBER, 2001.

GERALD A. HORNE

Prosecuting Attorney

seed

DANIEL R. HAMILTON

Deputy Prosecuting Attorney

Attorneys for Deputy Paul Thrash

et eS