This guy isn’t playing dead for the police.

 A man and his 12-year old son arrested in California for killing an opossum on their property with a shovel can sue the police for false arrest.  The federal district court threw out their claims, but were revived by the 9th Circuit.  As reported, the court held that the officers could have had no probable cause for an arrest given that killing an opossum under those circumstances was not illegal.

 Not sure why this needed to go to the 9th Circuit, and now a further court case on the merits is in the wings.  Our tax dollars, working again.

More here:


  • The case is Oliver v. City of Anaheim, No. 11–55492, 2012 WL 3109495 (9th Cir. Aug. 1, 2012). Since the cases was only argued on July 13, 2012, it seems pretty clear cut.

    Normally I give the benefit of the doubt to police, and I’m suspicious of the 9th Circuit’s tendency of legislating from the bench. This time, however, I believe the court got it right.

    Whatever lack of clarity or knowledge of the law on the part of the policemen, they could have called back for an opinion from the DA. Or, they could have recorded the facts and taken them to the DA for the DA to issue an indictment or review and approve an arrest warrant. Instead the policemen decided to act on their own, and arrested the father and detained the minor child. Although the facts do not show that the father and child were likely to harm any other animals, but had killed what the believed to be a dangerous animals, the police opted to arrest the father and detain the minor child. The police guessed what they believed the law was, and guessed wrong, when there was no urgency to make an arrest.

    The majority explained:

    “Because C.B.’s act wasn’t criminal, there was no cause to arrest him. And, without an underlying criminal act, Oliver couldn’t have been an accessory or an aider and abettor. . . . The arrests violated the plaintiffs’ constitutional rights. . . .. Therefore, the officers are not entitled to qualified immunity. Nor are they entitled to immunity under state law because a reasonable officer could not have believed that the arrests of C.B. and Oliver were lawful.” (citations omitted).

    Judge Watford’s dissent is unconvincing. He fails to deal with two key points made by the majority: Calif. administrative regulations confirm that opossums are dangerous by explicitly permitting their killing, and, although various methods of killing are prohibited, hitting a wild animal on the head with a shovel is not one of the prohibited methods.

    Although police sometimes have to make split second judgments, and the facts confronted may indicate that an arrest should be immediately made, this was not one of those times. In such circumstances the rights of citizens to be left alone from coercive government authority should be upheld. Upholding such rights appears to warrant the tax dollars expended because the case should be an example to police that there are times that sometimes the correct course of action is to get review and approval by superiors or people who are supposed to provide legal guidance.

  • By way of follow-up, in Embody v. Ward, No. 11-5963 (6th Cir. Aug. 30, 2012), Slip Op. at 12a0293p.06, the park ranger got it right. He wasn’t sure if the fire arm was legal under Tenn. law, so he let plaintiff proceed. The ranger called his supervisor, and the local police were called for assistance. When plaintiff was then detailed for a stop and frisk, the authorities knew what the applicable legal standards were, and after determining that the gun met the standards for being openly carried (which was hard to determine visually and a close inspection of the weapon was needed, as the barrel was 11.5 inches long and the law prohibited the open carrying of fire arms with barrels longer than 12 inches), returned it to plaintiff and let him go. The U.S. 6th Circuit correctly affirmed the suit’s dismissal.

    My main complaint with cases like this is that for suits under 42 USC 1983, Sec. 1988 only allows awarding attorneys’ fees to the private litigant, and not to the government against the private litigant. It would be nice to see Sec. 1988 amended to a loser pays statute.

  • wfjag said:

    “My main complaint with cases like this is that for suits under 42 USC 1983, Sec. 1988 only allows awarding attorneys’ fees to the private litigant, and not to the government against the private litigant. It would be nice to see Sec. 1988 amended to a loser pays statute.”

    IANAL (as I expect will become abundantly clear in a minute).

    I think I see your reasoning in the case you cite. It seems like you are saying the guy’s case was frivolous as he was only briefley detained and then allowed to go about his business.

    What if it were a non-frivolus compalint though? A private litigant usually has pretty limited and finite resources whereas the government has unlimited resources to prosecute/defend. The deck is already very much stacked against the private litigant and we want to add the uncertainty of loser pays? Even if the private litigant is totally in the right the government can drag a case out and exhaust his resources and then stick him with a bill for their defense. Am I getting your point wrong?

  • PS: I’m all for loser pays in private/private actions.

  • While of course I support the ruling, all it means that We, the Taxpayers of CA will have to shell out more money for the police’s incompetence.

    Sort of like having to pay off the coked-out Porsche girl who stole a car, hit a toolbooth and another car, before losing her head. Why? Because a photo that was taken on public property was “leaked?” In fact, these photos may well belong to the citizens of California.

  • “Am I getting your point wrong?”

    Somewhat. 42 USC 1988 provides for the award of attorneys fees to the “prevailing party” in suits brought under 42 USC 1981, et seq. You don’t have to have an outright win to be a prevailing party, and sometimes can be one if you achieve significant goals of the litigation by settlement. In fact, the plaintiff doesn’t even have to actually incur attorneys fees. They are awarded based on a fair market value basis (basically, the reasonable number of hours for the complexity of the case and results obtained times a reasonable hourly rate for the attorney). If the plaintiff has a contingency fee contract with the attorney, s/he will not owe any attorneys fees, as they come out of what is collected.

    So far, so good, since Sec. 1988 thereby puts pressure to resolve the case earlier rather than forcing the other side to run up attorneys fees and costs, which can eventually be awarded. The attorneyes fees can even exceed the amount of any judgment. So fighting to the bitter end isn’t a good strategy, unless you are confident of an pretty thorough defeat of plaintiff’s claims in their entirety.

    However, the way Sec. 1988 is drafted, the government cannot recover its attorneys fees from any plaintiff — not even large, well funded organizations (which are common in the enviromental-advocacy community, and which use Civil Rights laws to assert “environmental justice” claims.). It is not necessarily a big gov’t vs. little individual citizen suit, as a large number of Civil Rights suits are by large, well financed organizations, which have little or nothing at risk. You also have people like the plaintiff in the Embody v. Ward case. The facts of the case suggest that plaintiff went out to provoke his own arrest (since, not only was the weapon he carried on the edge of being illegal, he also took recording equipment so that his run-in with the park rangers was recorded). However, this evidence apparently helped established that the rangers acted lawfully. If he wanted to make himself a test case, that’s OK by me. However, since he lost on summary judgment (no genuine disputed material fact determined even before trial that he had no viable case), he should pay for the reasonable attorneys fees of the government. They may be on salary for the government, but they aren’t free.

    I believe that the same standards should apply to both sides. This would make attorneys and plaintiffs, as well as government defendants and their attorneys, think hard about the litigation — both bringing it, and after a good handle on the facts is known, continuing it.


  • Thanks for the clarification/additional background. That makes a lot more sense now.

  • To suggest that municipalities have limitless resources is simply untrue. They must balance budgets (unlike the federal government) and defending litigated claims takes its toll.

    To have a system where if the municipality loses pays its own fees plus the plaintiff’s fees where if it won the reverse is not true is unfair, David v. Goliath or not. Justice is supposed to be blind.

    Surely, there could be a kind of mechanism to have the plaintiff “insure” the fees/costs s/he would pay if s/he loses–and the premium could be based on the likelihood of prevailing as assessed at the outset of litigation (and perhaps revised as new information became available). Such a system might incentivize a plaintiff to weight the cost/benefit of bringing litigation.

    I often suspect plaintiff attorneys don’t want a system like that because in the current fee-shifting system under civil rights it encourages low-merit claims that can be trumped up into a nominal award for the plaintiff with a fee claim many times the value of the underlying claim. Given the fee exposure municipalities often settle/compromise the claims or play high-stakes poker (where they always lose anyway, bearing their own fees) by risking paying a $5K award and $200K in attorney fees for a trumped up claim.

    My point is I suppose that it encourages more claims and more settlements, but less justice.

    Case in point, Koenig v. Bainbridge Island et al (3:2010cv05700, Washington Western District Court)–plaintiff claims she was sexually assaulted in a graphic manner by the officer at a traffic stop. She drug the officer through the mud and the City paid deep six figure fees to defend itself. I believe the plaintiff was a certified crackpot (having witnessed a large portion of the trial)–surely there was an issue of fact to survive summary judgment. (And the City was threatened throughout the litigation with the plaintiff fee claim).

    Yeah, the jury sided with the City–it got screwed out of $500K plus in public money. That’s not make believe money, folks. That’s schools, teachers, pothole fixing or increase taxes–all which could have been avoided by dis-incentivizing stupid lawsuits like that one. Or at least if plaintiff wanted her due process and lost—she can pay for the damage.

    I do recognize that the encouraging of bringing low-value but meritorious cases by providing an avenue for fee-recovery beyond contingency has its value as a check on government and police power. But right now it’s way out of whack.

  • Here in New York State we had the 5.5 billion dollar closure of Shoreham to assuage idiots and 500 million dollar dredging of the Hudson for no positive effect.

    My dismay was exasperated by the fight we had for a modest bond proposal to fix the roof of our middle school.

  • @Jonthan: I don’t mean to tout another site, but there is an excellent discussion of the Embody going on at Volokh Conspiracy. Over 540 comments, including many apparently by the plaintiff. He clearly intended to provoke what happened, so he could sue. It’s too
    bad that the gov’t’s attorneys’s can’t be shifted, at least in part, to him. IMO, he’s free to try to enforce his rights as he believes them to be, as long as he pays the public’s costs when he’s wrong and looses.