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Saves you time. Saves you money. Makes you smarter. The News Tribune, Tacoma, WA - Wednesday, January 17th, 2007 7:04 AM
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City loses ‘frivolous’ appeal

KRIS SHERMAN; The News Tribune
Published: January 17th, 2007 01:00 AM

Tacoma’s appeal of a woman’s victory in a lawsuit involving the actions of police officers was “frivolous,” a federal court said Tuesday.

The 9th U.S. Circuit Court of Appeals sanctioned the city and ordered it to pay the plaintiff’s attorney’s fees and “double costs” incurred in the appeal. The amount isn’t known yet.

The court also ordered City Attorney Elizabeth Pauli’s office to make the City Council aware of the sanction and to provide council members and City Manager Eric Anderson with copies of its order as well as the court’s November opinion upholding the jury verdict.

Anderson said he’ll hire an independent counsel to study whether the city attorney’s staff acted properly within the scope of their duties in the case.

Pauli said her office appealed the case to protect the right of police to make a mistake in discharging their duties.

Pauli did not ask the City Council for permission to appeal the jury verdict.

Although she sometimes gives council members a “heads up” on sensitive or controversial legal matters, that wasn’t done on the appeal in this case, she said.

Councilman Mike Lonergan said he’d like for council members “to at least get a briefing” in such matters.

The sanctions stem from the decision to appeal a $138,000 jury award to Susan Frunz for damages she suffered in November 2000 when police broke into her home.

The 9th Circuit upheld a March 2005 verdict in the case last year.

Frunz sued the city because three police officers broke into her home, pointed a gun in her face, treated her like a suspect and searched her house. During the encounter, they ordered her to the floor, told her to shut up and handcuffed her.

They had no warrant. They made no arrests, and they didn’t file a report.

During a trial in U.S. District Court, the city argued the officers rightfully entered the home without a warrant because they thought a burglary was in progress.

A neighbor claimed a restraining order barred Frunz from entering the house. The police didn’t check to see if that was true before they barged in.

Frunz, who was getting divorced at the time, couldn’t convince police she’d been awarded the property.

When the federal court issued its ruling upholding the jury verdict in November, it gave the city two weeks to file legal papers explaining why its appeal wasn’t frivolous.

Only misguided optimism would have led Tacoma to appeal the unanimous jury verdict, the court said at the time.

The order issued Tuesday said the city misstated some of the testimony from its case in the appeal and the legal precedent on which the city relied didn’t apply.

“We explained our reasoning, and provided a correct recitation of the facts,” the court’s order said. Although the city was given an opportunity “to explain or retract the earlier misstatement,” city attorneys did not do that, the order added. “Instead, they twice repeated it.”

Until her staff meets with the plaintiff’s attorneys, Pauli won’t know what the fees and costs will amount to.

Frunz’s attorney, Hugh McGavick of Olympia, could not be reached for comment.

Kris Sherman: 253-597-8659

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