Kozinski Chides Tacoma

Affirming a jury verdict against Tacoma in a police misconduct case, Judge Alex Kozinski suggested the case was so strong that the city's appeal was frivolous. Frunz v. City of Tacoma, No. 05-35302 (9th Cir. Nov. 13, 2006).

A man reported to the police that his neighbor had asked him to keep an eye on his house while he was out of town and that now the neighbor's ex-wife appeared to be inside. Two officers stopped by the house and saw no signs of a break-in. The man called again to say that she was still inside and had opened the door to guests. Forty minutes later, at least three officers broke down the back door and handcuffed the woman and her guests on the floor. The two guests were released after the officers checked their IDs and found they had no outstanding warrants. The woman was kept cuffed for about an hour, until the officers reached her divorce lawyer who confirmed that she had received the house in the divorce.

A jury found against the defendant officers on all counts, awarding $27,000 in compensatory damages and $111,000 in punitive damages. On appeal, the officers argued that the verdict was not supported by the evidence and that they were entitled to qualified immunity. Judge Kozinski was not persuaded in the least:

Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found [the] officers . . . treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.10

10 Defendants and their counsel shall show cause within 14 days why they should not be assessed double costs and attorney’s fees for filing a frivolous appeal. Fed. R. App. P. 38.

See blog posts: Volokh Conspiracy (with over 100 comments), Nov. 14, 2006; Legal Blog Watch, Nov. 15, 2006.

Update (Nov. 27): News Tribune columnist Peter Callaghan printed excerpts from the oral argument, during which Judge Kozinski questioned Tacoma's attorney pointedly. Kozinski thought that the jury award was very modest:

“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.”

Bread and butter get expensive in 9th Circuit, News Tribune, Nov. 21, 2006. The column links to audio of the oral argument.

Thanks: Lisa Kremer.