Thursday, March 12, 2009

Disappointing Ninth Circuit Decision

Police authorities in countries and societies all over the world have the power to safeguard the life, liberty, and pursuit of happiness of their citizens and the same awesome power to deprive them of any or all of the above. What essentially separates the police in democracies from their counterparts in totalitarian societies is not their potential for abuse of power but their liability for the abuse of that power.

If I had entered a pharmacy in the Philippines during its martial law years and a police officer had assumed from my appearance that I might be passing counterfeit currency, he could arrest me even without any evidence that the currency was counterfeit or that I knew it was so, place me in handcuffs behind my back, parade me before the customers of the store and haul me off in a police car to a precinct where I would be handcuffed to a bar in a cell. Under the Marcos Dictatorship, I would have absolutely no recourse against that officer, if I were ever released.

But if that same incident happened in San Francisco on February 17, 2003 - not in Manila 30 years before - I would have recourse. I could sue the officer for arresting me without probable cause and I could be awarded damages for his abuse of power. This threat of a potential lawsuit for the police abuse of power is what protects law-abiding citizens in democracies. No such threat hangs over the heads of police officers in dictatorships so they can abuse their power with impunity.

This is precisely why every citizen should be alarmed by the recent March 9, 2009 decision of the Ninth Circuit Court of Appeals (Rodis v. City and County of San Francisco et al) which ruled that I have no right to sue police officers for arresting me on suspicion of counterfeiting after I used what turned out to be a genuine $100 bill.

One of the officers I sued, Sgt. Jeff Barry, had known me for years not just because our sons were classmates in third grade at St. Stephen Elementary School in 1998 but because we had a heated argument in our last meeting about a City College policy of not allowing campus police officers to carry their firearms. “You’re endangering the life of my brother in law!” he accused me then. At the end of that school year, my wife and I took our kids out of that parochial school.

Sgt. Barry was the first officer to respond to the 911 call of the Walgreens manager on February 17, 2003. When he saw that I was the suspect, he stopped at the entrance and waited for the other officers to arrive. It was “payback” time. He then directed officer Michelle Liddicoet to arrest me and to make sure that his name did not appear on the police report.

When this case was first presented to the Ninth Circuit several years ago, it ruled in a 2-1 decision on August 28, 2007, that the fact that a drugstore manager was suspicious of the bill that I used to make a purchase on February 17, 2003 wasn't enough for San Francisco police officers to arrest me, handcuff me, parade me in cuffs before the store’s customers, and hold me at a police station for almost two hours. Even if it had been counterfeit, the court majority said, innocently passing a counterfeit bill is not a crime, and the police had no evidence that I thought the bill was a fake.

"No reasonable or prudent officer could have concluded that Rodis intentionally and knowingly used a counterfeit bill," Judge Dorothy Nelson wrote in the majority opinion.

Judge Nelson added: "What is more, several facts known to the officers at the time of the arrest significantly decreased the probability that Rodis violated § 472. Viz., Rodis had other $100 bills in his possession that were genuine, one of which he used to complete the transaction; the counterfeit detector pen indicated the bill was genuine; and the officers knew Rodis was both a San Francisco attorney and a locally-elected public official with strong ties to the community in which the store was located. Specifically, Barry had known Rodis for several years. He knew Rodis was a member of the Community College Board, and he had interacted with Rodis personally, encountering him at activities associated with the elementary school that both Barry’s and Rodis’s children attended. Also, Rodis informed Liddicoet prior to his arrest that he was a public figure, and that he lived and worked within two blocks of the store."

San Francisco Deputy City Attorney Scott Weiner appealed the Ninth Circuit’s ruling and asked the entire Ninth Circuit court of 27 judges (en banc) to review the decision of the 3-judge panel that handed down the published opinion. The Ninth Circuit agreed to review the decision but affirmed it. Weiner then filed a writ of certiorari (request for review) to the US Supreme Court.
Early this year, the US Supreme Court granted Weiner certiorari and directed the Ninth Circuit to review its decision in light of its rulings in two cases where the police had probable cause to arrest the suspects who later sued the police for unlawful arrest.

Even though I was disappointed with the Supreme Court’s ruling, I was confident that the Ninth Circuit would uphold its previous ruling because, in my case, the police had absolutely no probable cause to believe that I knew the bill was counterfeit, particularly since it was genuine.

So I was greatly surprised and disappointed to learn of the new decision from a San Francisco reporter who called me up at noon on March 9 to ask for my reaction to the Ninth Circuit Court’s unanimous decision reversing its previous ruling.

According to Judge Dorothy Nelson, who was joined in the 3-0 opinion by Judges Consuelo Callahan and Cormac Carney, "Although the arrest was unfortunate, we cannot say that the officers' belief that (the bill) was fake was plainly incompetent... The arrest, therefore, was not clearly established as unlawful."

Judge Callahan, the dissenting judge in the first decision, somehow managed to convince the two other judges that her dissent should be the court’s opinion this time around. In the past decision, the majority judges had concluded that viewing the facts in the “totality of circumstances”, there was just no probable cause to believe that I knew the bill was counterfeit - which was a necessary element of the specific intent crime of passing a counterfeit bill.

This time around, the focus of the court was on the subjective belief of the police officers that they thought the bill was counterfeit and their mistaken belief was not “plainly incompetent”.

When asked by the Chronicle reporter to comment on the Ninth Circuit’s new decision, Scott Weiner explained that “officers have to make arrest decisions with very limited time and limited information. Even if the person ends up being innocent, the officers are not liable. The system would collapse if it were any other way."

The image of a cataclysmic collapse of the entire system if police officers were required to employ common sense was highly effective in persuading the Court to just give police authorities full immunity from having to conform to constitutional restrictions. It worked effectively for George W. Bush.

When the same San Francisco Chronicle reporter asked me for my reaction to the new decision, I expressed my deep disappointment. "This ruling gives the police the unfettered license to arrest anyone for the flimsiest of reasons without having to use common sense."

The lines are blurring. I will appeal the Ninth Circuit’s new decision all the way to the US Supreme Court if necessary.


prosy said...

Rodel, I see you have two options:

a. Accept the legal wrong and the public embarassment connected to this legal wrong and see what is the spiritual message behind this. What in your character is God evolving you to with this challenge, with this experience?

b. Not accept this legal wrong and pursue it until you get legal vindication that the police officer was wrong and did not exercise reasonable prudent judgment required of a police officer and pursue it not to uphold that you are right, he is wrong but, there are procedural lapses that must be reformed or changed and do it earnestly to protect the next person who may not have the political clout and legal acumen like you do and protect them. If you do, then it will be worth it, you would have added social value and the system is made more just and more reasonable and it will not be just vindication, vendetta and macho pursuits that I am right, he is wrong! It will not be a case of chauvinism struggle for its own sake!

anton joaquin said...

I cannot believe this legal [politicall-racist] situation. But, I am inclined to believe that the WASP power still prevails among the judiciary as one can plainly see.
You are right when you spotted in seconds the essence of that phrase "payback time" and I guess you knew what to expect and, strange as it may seem, what many with brown skins reading your case also expected. And here it is. How can we the non-white citizens help without entertaining sub-legal cover means for retribution? For starters my prayers. With the increasing high profile image of Filipinos in the U.S. perhaps some movement can spark some positive effect on this "isolated" case. Bravo Rodel.

Pat said...

My wife and I are victims of police retaliation for complaining that they were not enforcing a restraining order. You can read the details on my site if interested.

We were however stalked, and are still being cyberstalked as the crazy guy moved to texas but flames us against a protection order without fear of consequence, as when he threatened to murder us, shot our truck and dogs, police arrested him but a new DA took office, and according to witnesses promised to fix this "good ole boys" many violent felonies he committed while out on 1/4 million dollar bail.

It is a horrifying experience, and we are suing the county and a state legislature. They abrogated immunity by pushing Monell liability to the extremes. I have not read any recent case that parallels ours as far as overt deprivations of due process, and speech and redress.

My wife and I are white, but are suing our county to hopefully protect the next persons, and we have pointed out discrimination against Hispanic and Black crime victims. El Dorado County recently settled with legal bribery to silence “public scrutiny” 2 civil rights cases. See Lopez v. Placerville and Pastula v. El Dorado et al.

I am pros se and have a long standing case of abuse that is going on 3 years now. has the information. I have learned a lot about civil rights and RICO statutes. For instance, Title 42 of the US Code section 1981 and 1982 states, and I quote, “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. What is the point of that? “white citizens” Why not humans. So the U.S. Code classifies white citizens as being obvious have rights, and non whites have to be told they have rights just like “white citizens.”

I was born white, poor and I am discriminated against by the pretty white people who run our government because I complain about their negligence. Mr. Rodis, you are touching on a situation that needs to be addressed.

Look at the declaration of independence. “Life, liberty, and happiness” a duty of officers to protect? Yet that phrase didn’t make it into the constitution. The 11th amendment made into the constitution offering officials immunity. This is a contradiction to the rational basis for the Revolutionary war. The 11th amendment is what the “despot” King George the 3rd used against the colonist, yet they put judicial tyranny back into the states. All the revolution did was change the power mongers, and instead of calling the president a king, the Supreme court has ruled that Judges have “absolute immunity.” Only dictatorships and monarchies have “absolute power.” So does the United States. They can abuse their power under color as long as they don’t make the abuse a “policy.” Individual abuse is accepted, though citizens are unaware.

I know people of color get kicked a lot harder then people who are white, I believe any color of people in power will soon kick their own color just as hard. Absolute power corrupts absolutely.

Please go to the Supreme Court with your case. We need to stand together and not give up! America can be great, but we need to have the bloodless revolution, which is getting rid of immunity. Their contention that “government would fail” is smoke and mirrors and unsubstantiated. Government has it now and is failing because you can’t remove the cancer from it because it is “immune.” I say the bloodless revolution to a “more perfect union” is the complete removal of immunity, causing these psychopaths in suits and uniforms, called officials, to tread lightly on our rights! Otherwise we might as well move to the PI or Russia! At least they are not hypocritical about their civil rights abuses!