Despite its (mostly undeserved) reputation for liberalism, the three-judge panel that was assigned to my case was quite conservative. The panel was led by Consuelo Maria Callahan, who was appointed by George W. Bush. Justice Callahan was widely reported as a possible successor to Justice O'Connor, and at one point was named by conservative columnist Robert Novak as one of two finalist in the original search (the other being Harriet Myers). The second member of the panel was David R. Thompson, who was appointed by President Reagan. The third member of the panel, sitting by designation, was Jeffrey T. Miller, US District Judge for Southern District of California, who was appointed to that court by President Clinton. Each of these judges worked as either city attorneys, district attorneys or in the state attorney general office.
The hearing was held at the Ninth Circuit's main courthouse in San Francisco, on the 9:00 o'clock calender. With traffic, it often can take two hours to drive from Santa Cruz to San Francisco in rush hour. And I am still not able to drive because of my recent surgery. Plus I co-taught a drum class the night before so I was not able to spend the night in SF. Fortunately, I was able to talk a young paralegal who works for the law firm where I rent my office space to drive me up there, since I knew that he would find it interesting. A friend of his came to and they picked me up at my house at 6:45 a.m.
I didn't sleep much the night before, and I was pretty weary.The fact that Judge Miller was sitting by designation is an indication of how overloaded the Ninth Circuit is. The original decision that I was appealing in my case that was heard on Friday was made back in April of 2004, and the briefing for the appeal was completed in December of that year. It took almost a year and a half for the court to put it on the calender for oral argument.
In the case, I allege that my client's right to be free from an unreasonable search or seizure under the Fourth Amendment of the U.S. Constitution was violated when he was detained and then arrested by two Santa Cruz police officers in the early morning hours of January 8, 2002, for allegedly being under the influence of a controlled substance, a charge that the officers themselves eventually concluded was not true. The case was dismissed on a motion for summary judgment by the District Court Judge (Judge Ware, who some of you may recall, ruled recently in the dispute between Google and the Bush administration). Judge Ware found that based on the undisputed facts, a reasonable jury could not find that my client's constitutional rights were violated.
I won't get into all the issues, but my primary argument is that the objective evidence that the officers had did not justify their finding that they had probable cause to arrest my client. The arrest was made by a rookie cop who was being trained by a training officer. The officers testified that they had no discussions about arresting my client before the arrest was actually made. To back up a second, the reason my client was out on street corner in the early morning hours was because he had just broken up with his girlfriend, and he was supposed to be going to the airport. A friend was supposed to pick him up and bring him to the airport, and rather then waiting around at his now ex-girlfriend's. When the officers stopped at the gas station where he was waiting, he approached them and explained this to them. Nonetheless, one of the factors that they relied on was that he "appeared agitated". They refused to check up on his story because "criminals will lie to officers". The rookie officer skipped the first 3 tests of the "7 step drug abuse recognition program that Santa Cruz police officers are supposed to use. He found that my client's pulse was "slightly elevated" and that he was "slightly perspiring" (this was because he had run part of the way to the corner to try to warm up on a cold night).
Now we come to the critical issue. The rookie officer measured my client's pupils to be 7.5 mm. According to the police guidelines, up to 6.5 is normal. The one test that the training officer did to confirm the arrest was to measure the pupils. He measured them at 6.5. The defendant's own expert witness testified that 6.5 was normal for dark conditions, but that it wasn't normal here because this was in a well lit street corner. However, the officers themselves testified that they they did the measuring in "near darkness!" So according to their own expert, the more experienced officer's finding showed that my client's pupils were normal! Moreover, after arresting him, rather then bringing him straight to the jail, they brought him to the hospital (parading him in handcuffs through the emergency room) so that they could give him a blood test. They then measured his pupils again in controlled lighting. The rookie now measured the pupils to be 6.5. The training officer, however, measured them at 4.5. This was only 20 minutes later, not enough time for a significant change. They then decided they better release him and refused to give him the blood test. He then stayed at the hospital and paid for the blood test himself. It showed, of course, that he was not under the influence at all.
The judges peppered me with questions pretty good, particularly Justice Callahan and Judge Miller. I must say I was particularly impressed with Justice Callahan. There is a 20 minute limit for each side, and was not expecting to go that long. As it turns out, I went over by at least two minutes. It is quite rare that they will allow that. I doubt the attorney for the city and officers spoke for even 10 minutes. The judges seemed pretty skeptical of my position, and while I felt that I did a good job (and fortunately my client, who was there with his mother and sister, thought so too) I was not very optimistic at the end. But in thinking about it some afterwards, I am somewhat more optimistic. The fact that they let me go over may be an encouraging sign. It certainly shows that they were not just rejecting my position out of hand. We will see. It could be anywhere between a month and six months before I get a decision.
In any event, it was definitely a worthwhile experience. I felt that I held my own with some pretty exalted jurists and that was a good feeling. I was somewhat nervous before hand, but was we started I was completely "in the zone".
