Ninth Circuit Sends Mixed Signals In Strip Search Case

There were three opinions written — a majority, concurrence and dissent — on the 2-1 Ninth Circuit panel that ruled against San Francisco on the constitutionality of its former jail strip search policy.  As the Legalpad blog said in its headline:  9th Plays Jail Strip Searches Left, Right & Center.  Although on the surface, the Court did not upset 20 years of its strip search jurisprudence, two of the three panel members urged the Court to reject its precedents as inconsistent with the Supreme Court’s 1979 decision in Bell v. Wolfish.

The case is Bull v. City and County of San Francisco (9th Circuit August 22, 2008).  For a more detailed analysis, read Ninth Circuit Strip Search Law In Flux After Bull Decision.  Read the three opinions for yourself at the Section 1983 Civil Rights Law Reporter, a companion blog to Newdorf Legal.

Ninth Circuit affirms San Francisco’s victory in the “Fajitagate” case.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of San Francisco in a civil rights lawsuit dubbed “fajitagate.”  In an unsigned six-page memorandum decision issued July 23, 2008, Judges John Noonan, Sidney Thomas and Jay Bybee held that the City was not responsible for any injuries plaintiffs may have sustained in an altercation involving three off-duty San Francisco police officers.  In a novel claim for liability involving off-duty officers, plaintiffs argued that the off-duty officers were emboldened to attack the two plaintiffs because San Francisco had not properly disciplined one of the officers — the Police Chief’s son, Alex Fagan, Jr. — for allegedly improper use of force while on duty.

The judges wrote:  “Plaintiffs did not tender sufficient evidence to create a genuine issue of material fact as to whether a City policy of inadequate discipline for officers’ on-duty misconduct was the proximate cause of three off-duty officers’ decisions to assualt the Plaintffs for their bag of steak fajitas.”

Scott Graham, editor of The Recorder, writing in his paper’s blog, opined that with this decision, the case that ignited a storm of media attention “has ended with a whimper.”

Former San Francisco Deputy City Attorney David Newdorf (who with Deputy City Attorney Sean Connolly represented the City in five related S.F.P.D. excessive force cases) briefed and argued the case before Judge Jeffrey White in the U.S. District Court and in the Ninth Circuit.

Oral Argument Set In Ninth Circuit Appeal Of ‘Fajitagate’ Case

The U.S. Court of Appeals for the Ninth Circuit has calendared oral argument in the federal civil rights claims over a 2002 altercation between three off-duty S.F.P.D. officers (one of whom was the son of the assistant chief) and a San Francisco bartender and his friend. The media dubbed the case “fajitagate” because the fracas supposedly started over a bag of steak fajitas outside a Union Street bar. The melee fueled a perfect storm of headlines, hearings, lawsuits, investigations and indictments. But when the dust settled, most of the various civil and criminal charges against the City and SFPD officials and officers had been dismissed by judges or rejected by juries. Some cases, including this one, are on appeal.

In Snyder and Santoro v. City and County of San Francisco, U.S. District Court Judge Jeffrey White held that plaintiffs could not bring a federal civil rights claim over private, off-duty conduct of police officers. Plaintiffs had argued that they should be permitted to bring a lawsuit based on the SFPD’s alleged lax discipline for on-duty misconduct, which they contend caused the off-duty altercation. Plaintiffs’ appeal from Judge White’s decision in the “fajitagate” federal civil rights lawsuit will be argued before the Ninth Circuit at Booth Auditorium, Boalt Hall, on the U.C. Berkeley campus in Berkeley on February 13, 2008.

Defendants are represented by Deputy City Attorneys Sean Connolly and David Newdorf. Plaintiffs are represented by San Francisco attorneys John Houston Scott, Eric Safire and Dennis Cunningham.

Ninth Circuit Hears Oral Argument In Strip Search Class Action

The U.S. Court of Appeals for the Ninth Circuit on November 6, 2007, heard oral argument in Bull v. City and County of San Francisco, a class action challenging the County Jail’s former strip search policy. Until January 2004, the San Francisco County Jail made an unclothed visual inspection for drugs and weapons of prisoners who did not post bail and were not eligible for citation release. These prisoners were searched before they were placed in the general jail population. Ninth Circuit Judges Sidney Thomas, Richard Tallman and Sandra Ikuta heard about the record of drugs and weapons smuggling at the jail, and the unfortunate death of an inmate from a cocaine overdose after the jail relaxed its strip search policy.

Deputy City Attorney David Newdorf (the author of this website) argued the case for the Sheriff. Sacramento lawyer Mark Merin argued for the plaintiffs.

You can listen to (or download) the 47-minute oral argument from the link on the Court Decisions page of Newdorf Legal. The argument was also reported in The Recorder, which you can read on the Articles and Commentaries page.

Reinhardt & Kozinski: The Judicial “Odd Couple” Take Their Show On The Road

Judge Alex Kozinski reprised his role as Oscar Madison opposite Judge Stephen Reinhardt (as Felix Unger) in “The Judicial Odd Couple,” an entertaining lunch-time performance at the Bar Association of San Francisco. Okay, that’s not entirely true. The two Ninth Circuit jurists did engage in a lively discussion, but the actual title of the event on October 25, 2007, was the First Annual Jurisprudence Luncheon: How Judges Decide Cases. Too bad, because I think my title would have been more fitting.

Like the original play by Neil Simon, the re-make had both drama and comedy. The dramatic segment was the Q & A between a lawyer in the audience and Judge Kozinski.

In the lead-up to this exchange, Judge Kozinski explained his textualist approach to Constitutional interpretation. The Constitutional prohibition on “cruel and unusual punishment,” he said, can be understood through interpreting these everyday words: cruel and unusual. “The death penalty is cruel, even if done nicely, but is it unusual?” Kozinski asked. No, he said, because 38 states have enacted it.

This led to the following question and answer:

Lawyer: Judge Kozinski, if 26 states enacted laws requiring castration for rapists, would it no longer be cruel and unusual punishment?

Kozinski:  I don’t think you would need that many. Ten to 15 [states] would suffice.

Kozinski demonstrated that he is still not afraid to speak his mind. Judge Reinhardt is no shrinking violet, either. The liberal Reinhardt had a jab or two for his conservative colleague, but nothing as stunningly frank as the comments above. Kozinski clearly enjoyed tweaking his (presumably liberal) San Francisco audience.

Both judges complained about the politics of judicial confirmation. Judge Kozinski illustrated the problem today with a page from history: the 1979 Senate confirmation hearing for Judge Harry Pregerson, described by Kozinski as “one of the truly ultimately liberal judges the world has ever seen.”

At Pregerson’s confirmation hearing, then-Senator Alan Simpson (R-Wyo.) asked the nominee if the law required a decision “that offended your own conscience, what might you do in that situation.”

Pregerson responded: “I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience.”

This was a few years before the Reagan crusade to reshape the federal judiciary and even longer before the Judge Bork confirmation battle.  Judicial selection hasn’t been the same since.  Still, even in that day and age, Pregerson’s honesty stood out.  Senator Patrick Leahy (D-Vt.) commented at the hearing: “I can’t help but think in your answer to Senator Simpson’s question, that I expect a great number of Federal judges feel as you do, but I suspect only a small percentage would be as candid as you were in your response.” The full Senate went on to confirm unanimously Pregerson’s nomination to the Ninth Circuit.

Said Kozinski:  “Those were the days.  No one will admit anything like this ever again.”

In his remarks, Reinhardt took exception to the title of the panel discussion.  “I don’t know how to answer the question ‘How do judges make a decision.’  Much of what judges do is unknowing.  In many cases you’d have to ask a psychiatrist why a judge reached a particular decision.”

I agree with Reinhardt that judges are limited in their ability to peel back the veneer and expose the inner workings of judicial decision-making.  At this event, and others like it, judges invariably say that they try to apply consistent legal principles to the facts of the case without bias or prejudice, fear or favor.  And every practitioner – recalling some personal experience – responds:  “Yeah, right.”

Moderator Jim Brosnahan of Morrison & Foerster seemed to enjoy the pointed questions directed to the panel.  “This is fun,” he said.  “The lawyers get to ask the judges questions.”  Kozinski was quick with a come back:  “You will notice I didn’t do what the lawyers do with judges – evade the question.”  Touche.

Quiz: Match The Jurist To His Favorite Legal Theorist

At the First Annual Jurisprudence Luncheon (Oct. 27, 2007 at the Bar Association of San Francisco), the all-star panelists revealed their favorite legal philosophers.  Can you match the jurist to his fave legal thinker?  Find the answers below at Quiz Answers. 

The panelists were (a) Former California Supreme Court Associate Justice Joseph R. Grodin; (b) Judge Stephen Reinhardt, U.S. Court of Appeals for the Ninth Circuit; and (c) Judge Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit.

Legal Theorist

1. Benjamin Cardozo (1870-1938).  Judge of the New York Court of Appeal (1914-26);  Chief Judge of the New York Court of Appeal (1927-32); Associate Justice of the U.S. Supreme Court (1932-1938) .  Author of The Nature of the Judicial Process and the seminal case on proximate causation in tort cases, Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928). 
2. Ronald Dworkin (1931- ).  Law professor and theorist who formerly taught at Yale University and Oxford University and is currently on the law faculty at University College London and New York York University.  Author of Taking Rights Seriously (1977), A Matter of Principle (1985), and Law’s Empire (1986).
3. John Marshall Harlan II (1899-1971).  Associate Justice of the U.S. Supreme Court (1955-1971).  Known as a member of the Warren Court’s conservative wing.  He set a precedent, followed by every Supreme Court nominee since, by appearing before the U.S. Senate’s Judiciary Committee and answering questions.