Attorney's Apology for Flouting Court Order Can't Support Sanction Absent Actual Breach

An attorney's immediate apology after a judge sustained an objection against him for violating a pretrial evidentiary order in his summation could not support a sanctions order when a careful review of the transcript showed no actual violation of the order, the U.S. Court of Appeals for the Ninth Circuit held Oct. 27 (Miller v. Los Angeles, 9th Cir., No. 10-55235, 10/27/11).

In an excessive force case involving a Los Angeles police officer, Chief Judge Alex Kozinski said the city's attorney could not have acted in bad faith—a prerequisite for a sanction based on the district court's inherent power—if he did not violate the court's order.

“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. And you can't have a bad faith violation without a violation,” Kozinski said.

Judge Sandra S. Ikuta dissented, arguing that the majority's review of the trial transcript was improper under the deferential standard of United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc). “Only the majority, perched high in its appellate tower, claims an ability to discern from the cold trial transcript that there was no such violation,” Ikuta said, adding “[e]veryone who was in the courtroom that day agreed” that the city's attorney violated the order, “even the defense attorney himself.”

Deadly Force

In 2007, Sergeant Cesar Mata of the Los Angeles Police Department shot and killed Philip A. Miller after Miller came out of a Masonic Lodge party with his right hand in his pocket, shortly after Levon Beam stumbled out of the same party holding his bloodied head. Miller's family sued the city, LAPD, the police chief, and Mata under 42 U.S.C. §1983, claiming that the use of deadly force was not justified.

The district court judge issued an in limine order prohibiting the city from arguing that Miller was armed when he was shot. During the summation by the city attorney, Richard Arias, the plaintiffs objected to a part apparently purporting to reconstruct Mata's and/or Miller's thoughts just before Miller was shot—“My God, man. Get down on the ground. End it right there. He can't because he had shot Bean inside”—which they believed violated the order.

The court sustained the objection. Arias replied, “I stand corrected. There is absolutely no evidence that he had a gun in his hand. Sergeant Mata even admits that.”

The plaintiffs later moved for sanctions for the violation, which the court granted, imposing $63,687.50 in attorneys' fees.

No Actual Violation

The Ninth Circuit found the sizable sanction entirely inappropriate given that it found no bad faith on the part of Arias. It held that under Primus Auto. Fin. Servs. v. Batarse, 115 F.3d 644 (9th Cir. 1997), the district court could justify such a sanction under its inherent power only if Arias's conduct “constituted or was tantamount to bad faith.”

Kozinski added that in order to determine if bad faith was present, the appellate court “must know what line [Arias] crossed and how far he crossed it.”

After quoting the trial transcript at length, the court concluded that Arias was telling the jury how Mata, the police officer, viewed the situation. “Twenty times Arias makes it clear he's looking through Sergeant Mata's eyes and explaining what was going on in Sergeant Mata's head,” the court said.

The last sentence that troubled the plaintiff and the district court did not violate the court's order because it did not “carry the clear implication that Miller still had the gun with which he'd shot Bean,” Kozinski said. The jury could have reasoned that Miller shot Bean and dropped or passed along the gun before coming outside, the court explained.

Because Arias effectively conceded a violation of the order, “we must deem a violation established for purposes of this appeal though Arias didn't actually violate the order,” Kozinski said. But Arias and the city vigorously disputed, both below and on appeal, that he acted in bad faith, the court observed.

“This raises the unusual question of how we treat a finding of bad faith for a transgression that didn't actually occur,” the court said. If Arias had actually crossed the line drawn by the trial judge, “it would have been permissible to infer bad faith from his action plus the surrounding circumstances,” the court said.

“But no inference about Arias's state of mind in committing the violation can be drawn when he committed no violation,” Kozinski continued. “The waiver [i.e., Arias's concession] establishes the violation as a legal matter, but any inference that Arias had an evil state of mind in doing something he didn't do is ‘illogical, implausible, [and] without support in inferences that may drawn from facts in the record,'” he said, quoting Hinkson.

Procedural Deficiencies

The sanction was also improper because it was intended to compensate the plaintiffs for their attorneys' fees for the first trial that ended in a hung jury, but the district court made no finding that Arias's last disputed sentence was what caused the jury to hang, the court added.

If the sanction was intended “to vindicate the court's authority and deter future misconduct,” Kozinski added, it was large enough to resemble punishment for criminal contempt, and should not have been imposed without following “procedures applicable to criminal cases, including appointment of an independent prosecutor, proof beyond a reasonable doubt and a jury trial.”

In response to the unique case, the majority offered “some advice to lawyers: Don't apologize unless you're sure you did something wrong. And there's also a lesson for district judges: Don't accept too readily lawyers' confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That's why we have transcripts.”


Ikuta said she was not persuaded by the majority's “impermissible (and incomprehensible) reason that Arias violated the in limine order ‘as a legal matter' but not as a matter of fact.”

She also deemed it not straightforward whether the jury would have seen Arias's summation as entirely within Mata's eyes. Arias said that Miller may have had a clouded mind from alcohol and marijuana use, but Mata could not have known the results of a toxicologist's lab results. Thus, “the district court made a reasonable determination that Arias's statement that Miller shot Bean inside the Lodge was intended as a statement of fact.”

Deputy City Attorney Amy Field, Los Angeles, argued for the city. John Burton, Pasadena, Cal., argued for Miller's family.

Full text at .  


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