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Peter Callaghan
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Bread and butter get expensive in 9th Circuit

Published: November 21st, 2006 01:00 AM

Today’s column is written mostly by an assistant Tacoma city attorney and a judge from the 9th U.S. Circuit Court of Appeals.

That’s the best way to demonstrate how badly the city lost an appeal of a civil rights lawsuit that has already cost taxpayers $138,000 and could cost them much more.

The case, Frunz v. City of Tacoma, arose out of a 2000 incident in which police officers, on a second visit to a house, broke in unannounced and held a woman at gunpoint.

Officers thought she was the ex-wife of the owner and suspected her of breaking in. In fact, she had recently received the house in a divorce.

At issue now is less what the cops did than what the city attorney did – appeal a bad case that threatens civil liberties. Seconds into her argument before the appellate court, assistant city attorney Jean Homan was in trouble.

Homan: “Your honors, this case arises from the type of bread-and-butter incident to which law enforcement officers across this country are dispatched hundreds of times every day – every day, every shift …”

Judge Alex Kozinski: “You know, I’ve seen a lot of cases but I’ve never seen a case where someone calls to say, ‘Hey, the guy’s wife is in the house.’ Next thing that happens they come in with guns and they put her in handcuffs without a warrant.”

Homan: “But your honor, there’s a lot that happened …”

Kozinski: “(unintelligible) a lot of years and this may be bread and butter in Tacoma but I’ve never seen it anywhere else.”

Homan tried to argue that the search was protected because it was needed to protect life and prevent injury. She did not get far.

Kozinski: “The very fact that they go up to the house and knock on the door the first time is all the proof necessary to infer that they didn’t think this was an emergency situation, that this was a truly dangerous person inside. Why couldn’t they get a warrant? Have they heard of a warrant in Tacoma? Do they have warrants?”

Homan: “They most certainly have warrants …”

Kozinski: “Then why didn’t they go get a warrant?”

Homan: “Because if you are responding to a burglary in progress, that is exactly the kind of exigent circumstance …”

Kozinski: “If it’s a stranger! But this neighbor said, ‘I know who it is,’ so if the person leaves they can identify them …”

Later, Kozinski again.

Kozinski: “Explain to me at that point why they could not have gone to get a warrant. Just explain to me that by itself.”

Homan: “Because of the potential burglary in progress. You have the potential for the suspect to escape, the destruction of evidence…”

Kozinski: “What did you think? Was there some danger that she’d go in and cook a meal or something, that she would ruffle the bed?”

Homan: “Your honor, she didn’t live at that house.”

Kozinski: “But as a matter of fact, she did live at that house.”

Homan: “For a couple of days.”

Kozinski: “But she did live at that house.”

Kozinski, who wrote the opinion, ended with this lecture: “You know, you had a trial before a jury and I can sort of see taking the case to trial, but enough’s enough, you know. This is why we have a jury system. I don’t think you or your co-counsel would have liked if something like that had happened in your house on the say-so of someone who lives across the street. I don’t think any of us would.

“You had a jury and to me it sounded like the jury gave your clients a hug and kiss for what they did. Boy was this a parsimonious jury. You should have thanked them.”

Homan then thanked the judges and sat down.

The city has two weeks to show why it shouldn’t pay double the court costs and attorneys fees as a penalty for bringing a frivolous appeal.

AUDIO - This is audio of the oral arguments in Franz v. City of Tacoma, argued in Seattle on October 25. Assistant City Attorney Jean Homan is arguing for Tacoma. The judge who does most of the questioning is Judge Alex Kozinski, also wrote the written opinion in the case.

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