New panel decision shows why facts are for juries

Facts are for juries. This much is a shared foundation of democratic political legitimacy, a principle upon which our country and, in particular, our legal system is founded. From the moment someone, presumptively Benjamin Franklin, crossed out "sacred" and scribbled "self-evident" onto Thomas Jefferson's draft, we have been weaned on the milk of Enlightenment, our common bond, not our disparate beliefs, but shared experience, shared facts.

Likewise, reasonable inferences from facts are for juries, as is the weighing of competing, reasonable versions of facts. It is the democratic sifting of wheat from chaff, democracy's daily bread, particularly in police misconduct cases.

The principle is so basic and the rules regarding the principle cast so broadly that disagreements from the bench should be few and far between. It is, after all, all disputed issues of material fact and all reasonable inferences therefrom that belong to the jury.

Because this legal principle is cast so broadly, a dismissive and harsh semantic dissonance is structurally built into what otherwise is passed off as respectful disagreement regarding which cases should proceed. A judge dissenting from a 3-judge panel decision upholding summary judgment, where there is substantial agreement regarding the controlling law and substantial agreement regarding the controlling material facts, must at some level be unreasonable, as the legal determination turns on merely discriminating between reasonable and unreasonable interpretation of fact and inference.

In a sense, when a 2-judge majority rules that no person looking at a particular set of facts could reasonably conclude that the plaintiff has a case, they are also saying that a dissenting, duly, presidentially nominated, Senate-confirmed, constitutionally life-time tenured product of the three major branches of government must be, in the only important sense that matters to the parties in the case before him, fundamentally defective in his reasoning. It is not merely a difference of opinion regarding a difficult legal issue. It is, rather, he just does not reason properly. The deeper, biting criticism is logically embedded in the rhetorical structure of the dispute.

An alternative interpretation - that jurists in whom so much is institutionally invested might be acting on their biases - is dÃ(C)classÃ(C). One thoughtful answer of a 9th Circuit jurist to this conundrum is to recognize that, of course, there is a political element to such decision-making. All the more reason attorneys must do their political work in the selection process, before the Senate committees, and in the lobbying to both the president and the Senate. Thereafter, there is little choice but to bring your cases, have the clerk select your judges, make your cases and, on appeal, count your votes. Still, in police misconduct cases, the sad reality is that those votes can often be counted prior to argument, and that is wrong.

Implied in accepting the politics of police misconduct decisions is that the shovel work of the political process, such as the editorial expression of opinion regarding what constitutes legitimate, as opposed to illegitimate exercise of judicial power is, as much as arguing before the court, a lawyer's duty. Yet, the rhetoric on the editorial page will inevitably stand in contrast to the rhetoric employed before the bench.

Take, for example, Gonzalez v. City of Anaheim, 11-56360, handed down by a two judge majority (O'Scannlain and Trott), upholding summary judgment entered by the Honorable Percy Anderson in the Central District against the survivors of a man shot by Anaheim police during a traffic stop.

We start with the principle of law upon which both the majority and the dissent agreed: "Deadly force cases pose a particularly difficult problem because the officer defendant is often the only surviving witness."

Having acknowledged the difficulty, the majority nonetheless brushed it aside. According to the officers, as recited in the majority opinion, they were responding to a routine request to check on a transient when they had to aggressively brake because a van in front of them turned into a gas station. After not being able to find the transient, they went back to the station and, seeing the van, ran its plates through its mobile data terminal, discovered that it had been stopped before for a narcotics stop, followed it, and pulled it over, purportedly for weaving.

After the officers turned on their lights, the van proceeded for all of 200 feet before purportedly making a "wide-sweeping" turn to pull over. Officers approached from both sides. When the driver, Gonzalez, reached back between his seats, one officer warned him that, if he reached back again, he would shoot him, after which, Gonzalez tightly clinched his hands in his lap.

The other officer on the passenger side saw a plastic baggie in his hands which he thought might contain drugs. Both officers ordered him to open his hands. When he did not, the officer entered from the passenger side and hit him three times on the forearm with a flashlight.

Meanwhile, the officer on the driver's side attempted to put Gonzalez into a control hold around his neck because he thought Gonzalez was trying to swallow what was in his hand. The officer on the passenger side, thinking that Gonzalez was trying to punch his colleague, began punching Gonzalez "in the head and face."

After Gonzalez tried to shift the van into gear - I can't imagine why, if half of this is true, he would want to get away - the officer inside the compartment hit him three more times on the head with a flashlight. Nonetheless, the car, according to the officers, went forward for 50 feet. According to the officer, in that 50 feet, Gonzalez had floored the gas pedal, reaching 50 mph, while the officer shifted to a sitting position, had his hand slapped away when he tried to shift the car out of gear, then pulled out his gun, within less than 10, possibly five seconds, and the vehicle having traveled 50 feet, shot Gonzalez in the head.

It might be too sarcastic to derisively say in a court of law that this is a particularly cringe-worthy and self-serving excuse for the use of deadly force, meriting a cold, critical eye. Nonetheless, the dissent (Clifton), was impolite enough to take note of physical facts, such as that a vehicle that traveled 50 feet in 10 seconds would have an average speed of 3.4 miles per hour. Even double that, and you have 6.8, not 50 mph.

No need, apparently, for drawing a negative inference regarding the officer's credibility, as they were only "rough estimates." According to the majority, the officer's story is consistent "if we do not ascribe unfounded precision to his estimates." Absolutely no danger of that.

Poorly reasoned opinions by appellate courts do not, by themselves, impose an existential problem, or expose a fundamental flaw in the legitimacy of the courts. Nor does the fact that this particular case is screaming for a jury trial, not least, because it is a police shooting in which the decedent cannot testify, whereas the officers have presented poor, inconsistent, and somewhat ridiculous justification for the shooting.

Nor is it the fundamental importance of such cases to our national fabric, ranging from the Boston Massacre to Rodney King, or to any national fabric - witness the beginning of the Arab Spring by the self-immolation of a street vendor harassed by local police. It is not just the fundamental principle that life and death decisions not be delegated to those who might otherwise impose, acting under color of law, their own brand of curbside justice.

The problem is, rather, the inconsistency between the words and the power the court employs. The words say we all agree that facts are for the jury. The power says that facts are only what power says are facts.

Consequently, as an editorialist, I would assert that, for a fair mind, no hazy combination of rose-colored glasses, whiskey and accordion accompaniment could successfully help assimilate the Gonzalez majority opinion into the legal mainstream. But as an attorney, I will be, if confronted with its authority in court, limited to pointing out that the majority opinion might just be unreasonable.