When the news article about my Ninth Circuit loss (“Cops can’t be sued in ‘counterfeit’ arrest”, San Francisco Chronicle, March 10, 2009) appeared in the paper's on-line edition (sfgate.com) more than 98 comments were published in the first 24 hours.
One of the first comments came from “Akit” who wrote: “Let me get this right... the Walgreens manager used the special marker to prove its authenticity, and it was authentic. But they still called the cops who arrested him for being a fake? If the cops were smart, they would have used the marker to test it themselves, and wham! Can I get my change for my purchase? Problem solved.”
A comment from “szander” echoed the same sentiment: “So the manager at Wallgreens used a special pen to determine that the bill was legitimate and called the police anyway? Why, then, was the guy arrested after it was proven that the bill was authentic? That sounds incompetent to me.”
Quite a number of comments asked why I did not sue Walgreens instead. Well I did. In fact, as a result of my lawsuit, Walgreens fired the manager (Dennis Snopikov) and hired a Filipino, the first to be promoted to store manager in San Francisco. Walgreens also issued a public apology and paid my fees.
The transcripts of the 911 taped call of the Walgreens manager revealed that Snopikov had merely expressed a suspicion that the bill may be counterfeit, he did not claim that it actually was a fake. It was the police officers who jumped to that conclusion without conducting any investigation and that is why I sued the two police officers who were responsible for my false arrest (Sgt. Jeff Barry and Officer Michelle Liddicoet).
In their depositions, two of the San Francisco police officers who arrested me (Liddicoet and James Nguyen) stated that they thought the bill looked genuine to them when they examined it. In fact, at the police station, after Nguyen removed my handcuffs and informed me that the Secret Service had verified that the bill was genuine, Nguyen even boasted to the other police officers that he knew all along that the bill was genuine.
Liddicoet and Nguyen also claimed in their depositions that my false arrest was the result of a mix-up. The first two SFPD police officers to arrive at the scene, Sgt. Barry and Officer Barbara Dullea, reported a Code 4 - “situation was under control” (SUC)- to Liddicoet and Nguyen who unfortunately, they said, understood Code 4 to mean “suspect in custody” (SIC) and expected to see the suspect already in handcuffs upon their arrival. However, when they entered the store and saw it wasn’t the case, they proceeded to place me in handcuffs.
That’s the Keystone Cops “plainly incompetent” version.
The real story is that Sgt. Barry, the first officer to arrive at the scene, had a personal beef against me dating back to 1998 when our sons were 3rd grade classmates in a parochial school. While we were discussing a school policy, Barry started complaining about a City College policy of not allowing campus police officers to carry firearms on campus. He believed that this policy placed his brother-in-law at risk for his personal safety. As I was a City College Board member then, he wanted me to change the policy but I disagreed with his view.
So when Sgt. Barry saw an opportunity for payback five years later, he just couldn't resist it. He told Liddicoet (who had just arrived at the scene and who had asked him for a status update) “Oh it’s that lawyer, he hates cops”. (Honestly, I don’t). Liddicoet replied, “Don’t worry, Sarge, I’ll take care of him”. And take care of me she did.
Although Barry was the first to arrive at the scene, I didn’t recognize him because I was speaking with the store manager at the time. After I was placed in handcuffs in the backseat of the police car, I overheard an officer come up to Liddicoet who was seated in front of me and whisper to her: “Make sure my name isn’t on the police report, ok?” LLiddicoet replied "Yes, Sarge". I couldn’t see the face of "Sarge" as it was dark but I kept asking myself throughout the ride to the Taraval police station “Who is Sarge and why doesn’t he want his name written on the police report?”
So when I saw the police report which included Sgt. Barry’s name (Nguyen wrote it), everything finally made sense. Wow, I thought, this officer can carry a grudge.
The Ninth Circuit’s March 9, 2009 decision means that police officers like Sgt. Barry now have the power to arrest anyone that they have a personal grudge with and people like me can’t sue officers like Barry. It’s no longer a qualified immunity, it’s now an absolute immunity.
My long-time critic, Roy Recio, cheered the Ninth Circuit decision in an email to me a few days ago because, he wrote, “This is what you deserve”. The question is not whether I deserve it but whether Recio deserves it. He may one day find himself falsely accused of a crime and arrested even without probable cause. To make sure that it doesn’t happen again to anyone else and to compensate him for the embarrassment the false arrest may have caused him, Recio may file suit against the police officer. Ironically, his suit would then be thrown out of court because of the decision he is now cheering. If that happens to Recio, I promise I won’t email him to gloat that what goes around, comes around.