Tragedy and the First Amendment

My client was a California Highway Patrol dispatcher. One night, a young woman got high on cocaine and took her step-dad’s Porsche. Her mother called 9-1-1 and said that she was driving drunk. Then her step-dad called 9-1-1 and said that she had been drinking and had stolen his Porsche.

My client, as a dispatcher, heard these calls. He also heard the call of a Porsche on the 241 toll road roaring past cars at 100 miles per hour and smashing into a tollbooth. The driver was decapitated. My client put the calls together and knew what had happened.

The Highway Patrol took photos of the decapitated corpse. My client asked for copies of the photos. The CHP officer who took the photos sent them to him electronically, and my client e-mailed the photos to his own private e-mail account. Then he e-mailed the photos to friends and family, to warn about the dangers of drunk driving. The photos quickly spread on the worldwide web.

The family sued my client.

1. I argue that the right of privacy ends in death.In Superior Court, I filed a demurrer. A demurrer admits the truth of all the allegations in the complaint, but it says that those allegations don’t add up a legal basis for a lawsuit. In other words, it says, "OK, I accept your facts; so what?"

My argument was old law: the right of privacy ends at death. The family had no right to sue for invasion of privacy (publishing the gory pictures) because the dead woman’s right of privacy ended when she smashed into that tollbooth.

The Superior Court judge agreed. He dismissed the case. The family appealed, and the Court of Appeal, making new law, reversed the decision of the Superior Court judge.

2. I argue that my client had a First Amendment right to publish the photos.So the case went back to Superior Court. In Superior Court, I filed an anti-SLAPP motion. That’s a motion that basically says that this lawsuit is about my client’s First Amendment freedom of speech; and because he had a First Amendment right to publish these photos, the case should be dismissed. The Superior Court judge disagreed. This time, I was the one who appealed.

                        3. Threats.

 Now, before I appealed, the other side sent me a threatening letter. They said that if I appealed, my appeal would be "frivolous" – that is, so baseless that no reasonable lawyer would think it had merit. They said that if I appealed, they would seek monetary sanctions against me – a penalty for bringing a frivolous appeal. Lawyers can do that. If the justices determined that my appeal truly was frivolous, then I would have to pay the other side’s attorney’s fees.

But the opposing side’s letter to me was full of threats but empty of analysis. They showed me no law that made it clear that any reasonable lawyer would know that my appeal had no merit.

Their letter reminded me of a National Geographic episode that I saw as a child. There’s a tribe of chimpanzees in Africa. These chimpanzees have learned to charge other chimpanzees while banging together discarded, empty, metal gas canisters. In that way, the chimpanzees get their adversaries to retreat without combat. The threat letter reminded me of these chimpanzees. In my reply letter, I told the opposing lawyers the story of those chimpanzees. I have the impression that they resented the story.

4. The other side files a motion to sanction me for a frivolous appeal.Sure enough, after I file my opening brief, they filed not only an opposition brief, but also a motion for sanctions. After I was over the lingering shock, I considered it a stunt, to make an impression on the justices. It’s like they’re saying, "This appeal is so meritless that just denying it isn’t enough; the Court should impose sanctions, too!" It’s a way for them to vouch the supreme merit of their legal position.

                       5. Evidence of overconfidence.

Two weeks before the oral argument in front of the three-judge panel, the other side sends a case they’ve found to the Court of Appeal and to me. (Lawyers and judges look at previously-decided cases to decide what the outcome of a new case should be.) In that case, the Court of Appeal imposed sanctions against a lawyer for bringing a frivolous anti-SLAPP appeal. But the most remarkable thing about the case that the opposition sent just before oral argument was how dissimilar it was to the circumstances of my case. It was valueless.

But it gave me valuable information. It told me that the other side was so sure that they were going to win the appeal that they were thinking only of whether I would have to pay their attorney’s fees. I smelled overconfidence.

                    6. I get ready to scrap.

As for me, I knew that this would be a tough case to win. The law is on my side, but it’s an emotional case, and the emotions run against my client. So I prepared carefully for argument. I got ready to scrap. Meanwhile, I suppose that the other side spent the week leading up to argument deciding what kind of cake they would order for their victory party.

And it showed. Their attorney’s argument was weak. He cited law that hasn’t been the law in decades. He seemed flustered when the justices challenged his assumptions, as if he were expecting to coast to victory, and didn’t expect any push-back from the justices.

That can only help my side.

7. Time to wait.For all that, I don’t know how the case will come out. The senior judge was candid: at the end of the argument, he bluntly said he didn’t know how he would rule. The justice to his right is clearly on the side of my opponents. She seems to have a visceral reaction to the case, but obviously it also engages her intellect. I couldn’t read the mood of the other justice.

So now, after the lengthy briefs and almost an hour of argument, it’s time for the lawyers to be silent, step back, and wait for the decision of the Court of Appeal.

Prying Government Open

In California, you can go into any City Hall and demand records to see how the government is doing the people’s business. That’s because of the California Public Records Act (aka CPRA).


1. A law that makes government records available to you.Let’s say you want to know how often people claim that they were wronged by the police and demand money. You can get documents that contain this information. You can see how often people demand money for police use of excessive force, for wrongful arrest, for traffic accidents by on-duty officers. These are just examples. You know your own curiosity about government.

                   2. Some City Halls are more open than others.

Some City Halls give you documents, and some City Halls give you hell. For example, Colton does its CPRA duty. It doesn’t make you go to court to get what you want.

Fontana has a troll-like protectiveness for their documents. Their lawyer will call you and cross-examine you about why you want the records – which is none of their business. (Think Monty Python and having to answer three questions to cross a bridge.) Their pettifogging attorney will quibble and quarrel with you about the exact phrasing of your request, and try to box you into a corner. It’s an unequal match, usually, because he’s a professional debater who knows the law. And, usually, you aren’t.

And after all that, if you don’t have a lawyer, Fontana will give you the bum’s rush.

We’ve sued Fontana twice, and we’ve won both times. But Fontana fights each case like the future of the free world were at stake. The CPRA is all about open government. Fontana is all about why-the-hell-don’t-you-go-away-and-mind-your-own-business.


3. City Halls pay a price for erroneously resisting CPRA requests.Fortunately, when City Hall loses a CPRA case, it has to pay the record-seeker’s attorney’s fees. In our first case, Fontana fought all the way to the day of trial, then gave up the records. We won an attorney’s-fee award of $29,000.

That might seem like a lot of money to get records from City Hall. But we filed another CPRA request to find out Fontana’s own attorney’s fees for fighting that case. Their attorneys billed Fontana $127,000 to lose a case that we spent $29,000 to win (a little more, actually – the judge shaved our fees slightly).

We won a second case against Fontana, and now we’re fighting in court over the amount of attorney’s fees. We've had four court hearings on attorney's fees alone.


4. Today’s case against Hemet.I had a hearing today in another CPRA case. The defendant was the City of Hemet. Our client had requested bite records about city police dogs. Hemet told our client to get lost. Hemet said that these records were "records of investigations" that, under the CPRA, they could withhold. They submitted to the judge hearing our case a declaration from a police sergeant that explained why police dog bite records must not be disclosed.

                    5. We had evidence that Hemet didn’t know we had.

But Hemet didn’t know that we had examples of their bite records. We had obtained examples of two kinds of Hemet Police Department records: a K-9 Use Report and a Monthly K-9 Use Summary. We got these in a criminal case we defended. And because we had these records, Hemet got crushed in court.

                     6. The winning argument.

This was our chief argument today: Hemet said that the K-9 Use Report was an investigation report; but all investigation reports must be turned over to the District Attorney, so the prosecutor can turn them over to the criminal defendant’s lawyer. That’s a right that every criminal defendant has – to see the evidence against him. That happens in every case, always. One of the reasons for investigation reports is so that the District Attorney and the criminal-defense attorney can see and evaluate the strength of the case against the defendant.

But the K-9 Use Report said this across the top: "DO NOT COPY TO THE DISTRICT ATTORNEY/THE COURT." So clearly this was not a record of investigation – if it were, it would have to go to the District Attorney and to the Court. Based on what’s written on the records themselves, these are not records of investigations.

So what are these records? They’re reports prepared as a safeguard against lawsuits by the persons bitten. Their purpose is not criminal justice. It’s protection against civil liability. And there is no basis in the CPRA to withhold these.

As to the Monthly K-9 Use Summary, Hemet didn’t even try to argue that these were privileged against disclosure. At first, Hemet pretended that such records did not exist. When we showed that we knew about them – by producing a monthly report – Hemet then pretended that they hadn’t known that we wanted those records.

The judge was smart. Based on the briefs, he said right away that he was inclined to order Hemet to release the records. Then both sides made their argument. Sometimes the judge commented or framed a question. He didn’t change his ruling.

Case won.

                     7. More people should use the CPRA.

We take CPRA cases on a contingency-fee basis. That is, we don’t charge our clients, but if we win, we collect our fee from the city.  Usually, our CPRA cases concern police use of force - like today's case, which involved bites by police K-9s. We like these cases because they relate to our civil-rights practice. And who doesn't want to know about police use-of-force against citizens? Police have so much authority; how do they use it?

The CPRA is a great tool to make government accountable to you. We're better able to judge government if we know how it does its duty. That's the goal of the CPRA.

It’s a shame more people don’t know about it and use it.

The federal government has a similar law. It’s called the Freedom of Information Act.

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If opening the government to the eyes of its citizens is something that you want to become involved in, visit our website at http://criminal-civilrights-attorney.com/

Samurai

Sometimes the practice of law is a blow to the head.

In a case on appeal, I had to respond to a motion by the other side for monetary sanctions against me. The motion contends that I’m pursuing a frivolous appeal. The motion proposes that my appeal is so ill-founded that I should pay the other side’s attorney’s fees. That’s the claim. And the fact that the judges required me to respond means that they’re considering granting the motion. The motion will be argued at the same time as the oral argument on the merits of the appeal.

This stuns me. I am so far from believing that the appeal is frivolous that I believe that I should win it. I believe that the appeal presents a substantial First Amendment issue. I believe that the First Amendment is under attack by the other side of this case, and that the Court of Appeal must step in to uphold the Constitution.

Before I responded on paper, I had to respond inside. And I had only one choice: courage.

The issue of courage usually arises consciously in my cases when I have to assay courage of my clients. I take for granted that clients have a greater or lesser degree of courage, and I calibrate my advice to their ability to bear risk. Some will fight, some must compromise. A few only want to give up.

I’ve seen cases take a toll on my clients. I’ve seen their health or fitness decline under the stress of prosecution.

I know that the case that I’ve appealed – the subject of this motion – weighs on my client. It’s an emotional case. My client was a CHP dispatcher on the night that a young woman got high on cocaine, stole her step-father’s Porsche, raced down a toll road at speeds of over one-hundred miles per hour, clipped another car, and collided with a toll booth. The collision decapitated her. The CHP took collision-scene photos, including photos of her corpse. My client was given copies of those photos, and he emailed them to friends and family. He wanted to warn them against the dangers of drunk driving.

The photos spread on the internet. Cyber-bullies even emailed them to the young woman’s family, with cruel comments. The family then sued my client. I am arguing that my client was exercising his First Amendment rights to publish these photos, because they pertain to an issue of public importance: the dangers of drunk driving. I lost in Superior Court, and I appealed to a higher court.

My client must dig deep to bear up under this lawsuit, which threatens to bankrupt him. And as his lawyer, I must never have less courage than he does.

So my response to this motion must be strong, uncomplaining. I don’t compare myself to Job, because innocent Job was righteous, and I'm not – although I'm blameless of pursuing a merit-less appeal. I think of a metaphor I use for some of my life-prisoner clients who are trying to get parole. Sometimes I have to make them face the fact that their recent rules violations make it impossible for them to get parole now. I have to make them understand that they are better off waiving their right to parole hearing for a year or so, than risking denial of parole with their next parole hearing many years in the future. Some of them tell me that their rule violation wasn’t their fault. So I tell them the story of the man who got up in the morning, had breakfast, kissed his wife goodbye, got into his car, backed out of the driveway, and got smashed by a drunk driver. I tell my clients that, like that man, what happened to them might not be their fault, but that they have to live with the consequences.

So, too, I have to deal with this motion.

I don’t compare myself to Job, but Ecclesiastes comes to mind, the part that says:

[T]he race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all. [Ecclesiastes 9:11.]

In my heart, I believe that I deserve to win this appeal. Certainly, I believe it’s not frivolous, and I don’t deserve to have to pay the other side’s attorney’s fees. But a court case is unpredictable. You never know what a judge or what judges will do. So I know that this could have a bad ending.

If nothing else, if this appeal goes badly, and I have to pay the other side’s attorney’s fees, I’ll have another story to tell my life-prisoner clients. I’ll tell them about the time I filed and prosecuted a perfectly proper appeal and got crushed unjustly. For that reason, I can tell them that I understand their frustration with suffering a penalty that they don’t think that they deserve. Stuff happens.

Another benefit of this ordeal: it teaches me empathy for my clients. It’s too easy to forget what it’s like to be in the cross-hairs, like many of my clients are. It’s valuable to have with them that common ground.

Shortly after I got this motion and the Court’s notice to respond, I watched the classic film The Seven Samurai. The samurai in that film went to a poor village to defend farmers against a band of outlaws. Defending the farmers, the samurai put their own lives in danger, and most of them died by the end of the film. Now that I’m in harm’s way, I guess that makes me a samurai lawyer.

Fine. I think I fight hard for my clients. But it turns out that I fight harder when I’m fighting for my own skin. I wrote a 30-page response to the motion for sanctions, and I poured passion into it. Now I’m writing my final brief on the merits of the appeal, and I’m putting more into it in time and passion than otherwise I might have. Because it’s personal.

I’ve been fighting this case for a long time an maybe my energy had begun to ebb. The other side might yet regret making my energy surge.