Metropolitan News-Enterprise


Monday, August 17, 2015


Page 1


Panel Revives Claims of Defense Lawyer Seized by Sheriff’s Deputy




A Los Angeles County sheriff’s deputy who responded literally to a deputy public defender’s sarcastic suggestion that he arrest her if he wanted her immediate presence in court is not protected by qualified immunity, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel said U.S. District Judge Michael Fitzgerald of the Central District of California erred in concluding that Deputy Wai Chiu Li acted reasonably in arresting Deputy Public Defender Florentina Demuth after she made the comment.

Demuth sued Li and the county after the 2010 incident, which occurred when the defense lawyer was running late for a hearing at Los Angeles’ Los Padrinos Juvenile Courthouse and did not respond to several pages.

Then-Referee Heidi Shirley, juggling a lengthy calendar, declared:

“I order Ms. Demuth to court. If she refuses, then call Ms. [Patricia] DeLaGuerra-Jones [a supervising deputy public defender] to explain why Ms. Demuth isn’t here.”

‘Just a Minute’

Li went to the public defender’s office in the courthouse and repeatedly asked Demuth to come to the courtroom, to which Demuth responded, “‘Just a minute,’ or something to that effect,” Judge Alex Kozinski explained in Friday’s opinion. Li then raised his voice and demanded that Demuth come immediately.

Demuth, Kozinski explained, was in the process of completing an assignment given her by the DeLaGuerra-Jones, and told the deputy: “If you want me to come right now, you’ll have to arrest me.”

Li then handcuffed the lawyer, escorted her to the courtroom, and removed the cuffs.

She was under arrest for 11 minutes, according to testimony.

Fitzgerald found that the arrest violated the Fourth Amendment, but that the deputy was entitled to qualified immunity because the invalidity of the arrest wasn’t clearly established by the case law prior to that time.

The appeals court disagreed.

Noting that it was “not unusual” for deputy public defenders to be out of the courtroom when their cases were called, that it “typically took some time—and a few pages—to get them there,” Kozinski concluded:

“Li could not reasonably have believed that he had one of the usual Fourth Amendment justifications for the arrest. He had no warrant; Demuth was not suspected of a crime; he was not in hot pursuit or performing a community caretaking function, etc. No reasonable officer could have understood the referee as ordering that Demuth be forcibly brought into court.”

Sarcastic Remark

While “challenging someone equipped with a badge, handcuffs and a gun to ‘arrest me’ was unwise on Demuth’s part,” the comment was legally irrelevant because “Demuth was obviously employing a literary device known as sarcasm,” the judge said.

He added:

“No one in this case has covered himself with glory: not the lawyer whose lackadaisical response to a judicial summons and disrespectful retort to a fellow court officer set off this unfortunate chain of events; not the supervisor who did not urge the lawyer to comply promptly with the deputy’s repeated requests that she come to court or admonish her for her tart response to the deputy; not the deputy who took the bait and abused his power; not the judges of the Los Padrinos Juvenile Court, who, doubtless aware of the incident, failed to mediate a minor dispute among court officers and allowed it to metastasize into a federal case. What seems to be at stake here is little more than wounded pride, as any damages suffered by the plaintiff seem hardly more than nominal. The dispute should have been resolved by an admission that the deputy violated Demuth’s constitutional rights, followed by mutual apologies and a handshake, saving the taxpayers of Los Angeles County the considerable costs of litigating this tiff.”

Unpublished Memorandum

In an unpublished memorandum accompanying the opinion, the panel held that Li wasn’t entitled to quasi-judicial immunity because he had not complied with the referee’s directive that he talk to the supervisor if Demuth was unprepared to come to court; and that Demuth’s false arrest/excessive force claim should be reinstated because it was subject to the same standard of reasonableness as the civil rights claim.

Plaintiff’s attorney Daniel Crawford of Crawford Weinstein LLP said the case had been a “spectacular waste of taxpayer money” and would likely wind up costing the county $1 million or so, including an award of fees to Crawford’s firm.

“The real bully here was the county,” he said, which offered a nominal sum in settlement, but only on condition that Demuth apologize to the deputy. “She wasn’t even looking for a deputy.”

The county’s lawyer, Steven J. Renick of Manning & Manning & Kass, Ellrod, Ramirez, Trester LLP, said he was disappointed the panel had rejected “well-reasoned legal and factual analysis” and that the county might seek further review. He told the MetNews he could not respond to Crawford’s comments about the cost of the litigation or the discussions that took place prior to the district court ruling, noting that his firm was not involved in the case prior to the appeal.

The case is Demuth v. County of Los Angeles, 12-57197.


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