Metropolitan News-Enterprise


Friday, October 28, 2011


Page 1


Ninth Circuit Tosses Sanctions, Says Deputy City Attorney Did Not Commit Violation He Admitted to


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday threw out a $60,000 sanction against a deputy Los Angeles City attorney who admitted and apologized for having violated an in limine order, the appellate panel finding he had done no wrong and therefore could not have acted in bad faith

Chief Judge Alex Kozinski, who wrote for the majority, advised attorneys not to “apologize unless you’re sure you did something wrong,” and district court judges not to “accept too readily lawyers’ confessions of error or rely on your own memory of what happened” in order to avoid the situation presented during a lawsuit filed by Philip Miller’s family against the City of Los Angeles, its police department and an individual officer.

Miller was shot and killed by an LAPD officer in 2007, and his wife and son sued, claiming the officer had not been justified in using deadly force. During the trial’s closing arguments, Deputy City Attorney Richard Arias delivered a narrative on what was running through the officer’s mind when he confronted Miller, and ended it by insisting

Miller had failed to comply with the officer’s demands to surrender because he had shot the victim the officer had seen moments earlier.

U.S. District Court Judge Virginia A. Phillips of the Central District of California sustained the objection raised by counsel for Miller’s family and instructed the jury to ignore Arias’s statement. Arias then completed his closing argument and the case was submitted to the jury.

After deliberating for three days, the jury was unable to reach a unanimous verdict and Phillips declared a mistrial. A second jury returned a defense verdict upon retrial.

After the mistrial, Miller’s family moved for sanctions against Arias, and the city conceded that Arias had violated an in limine order barring the city from arguing Miller was armed when he was shot. Arias also attached a declaration admitting fault and apologizing.

Phillips granted the motion and sanctioned the city $63,687.50.

The city appealed the sanctions order, contending the transgression by Arias was inadvertent, fleeting and harmless. In order to address this argument, Kozinski said yesterday, “we must know what line [Arias] crossed and how far he crossed it” before deciding whether the attorney acted in bad faith.

Kozinski characterized Arias’s summation as being about how the officer perceived the encounter with Miller, noting that “[t]he tale Arias narrates is consistently from [the officer]’s perspective.”

Arias was trying “to get the jury to see the situation from the policeman’s point of view, which makes perfect sense given that the jury had to decide whether [the officer] acted like a reasonable officer,” Kozinski opined.

The attorney “was certainly entitled to argue that [the officer] reasonably believed that Miller posed a threat because he had just shot [someone],” Kozinski said, as “it’s hard to imagine how a lawyer defending police in these circumstances can avoid arguing that the officer reasonably believed the suspect was dangerous.”

Kozinski reasoned, however, that Arias’ assertion Miller had just shot someone prior to his encounter with police did not violate the in limine order because it did not “carry the clear implication that Miller still had the gun.”

The judge chided Arias for admitting to a transgression, saying the attorney’s act, though “entirely understandable,” was “foolish and unhelpful,” as it “locked him and his clients into a violation he never committed” and “misled the district judge.’

In light of Arias’ concession, Kozinski explained the appellate panel had to deem the violation established, even though it did not occur. But since there was no violation, Kozinski reasoned, Arias could not have acted in bad faith.

“You can’t have chicken parmesan without chicken; you can’t have an amazing technicolor dreamcoat without a coat; you can’t have ham and eggs if you’re short of ham or eggs,” the judge quipped, and so “you can’t have a bad faith violation without a violation.”

If Arias “had…actually crossed the line drawn in the sand by the district court, it would have been permissible to infer bad faith from his action plus the surrounding circumstances,” Kozinski allowed, but “any inference that Arias had an evil state of mind in doing something he didn’t do” would be illogical.

Kozinski the sanctions also could not be upheld because it was “clear the district court meant the sanctions to be compensatory” as the amount was precisely what Millers’ family had claimed as attorney’s fees for the first trial, but the court failed to link Arias’s statement to the harm suffered by the Millers.

“[T]he amount awarded had to compensate the Millers for the damage actually caused by Arias’s eight-word sentence,” Kozinski said, and “without a finding that Arias’s eight words caused the first jury to hang, the district court had no authority to order defendants to compensate plaintiffs for the attorneys’ fees and costs they spent on the first trial.”

Senior District Judge Lawrence L. Piersol of the District of South Dakota, sitting on the Ninth Circuit by assignment, joined Kozinski in the opinion, but Judge Sandra S. Ikuta dissented.

Ikuta argued the majority “elides the deference due to the district court’s decision to impose sanctions in its inherent power.”

Deputy City Attorney Amy Field represented the city on appeal. Pasadena attorney John Burton and Elbie Hickambottom Jr. of Gronemeier & Associates P.C. represented Miller’s family.

The case is Miller v. City of Los Angeles, 10-55235.


Copyright 2011, Metropolitan News Company