In that memorandum decision, Demuth v. Los Angles County, http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/14/12-57197.pdf, A Los Angeles County sheriff’s deputy who responded literally to a deputy public defender’s sarcastic suggestion that he arrest her if he wanted her immediate presence in court is not protected by qualified immunity, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel said U.S. District Judge Michael Fitzgerald of the Central District of California erred in concluding that Deputy Wai Chiu Li acted reasonably in arresting Deputy Public Defender Florentina Demuth after she made the comment.
Demuth sued Li and the county after the 2010 incident, which occurred when the defense lawyer was running late for a hearing at Los Angeles’ Los Padrinos Juvenile Courthouse and did not respond to several pages.
Then-Referee Heidi Shirley, juggling a calendar, declared:
“I order Ms. Demuth to court. If she refuses, then call Ms. [Patricia] DeLaGuerra-Jones [a supervising deputy public defender] to explain why Ms. Demuth isn’t here.”
Li went to the public defender’s office in the courthouse and repeatedly asked Demuth to come to the courtroom, to which Demuth responded, “‘Just a minute,’ or something to that effect,” Judge Alex Kozinski explained in the opinion. Li then raised his voice and demanded that Demuth come immediately.
Demuth, Kozinski explained, was in the process of completing an assignment given her by the DeLaGuerra-Jones, and told the deputy: “If you want me to come right now, you’ll have to arrest me.”
Li then handcuffed the lawyer, escorted her to the courtroom, and removed the cuffs. She was under arrest for 11 minutes, according to testimony. Fitzgerald found that the arrest violated the Fourth Amendment, but that the deputy was entitled to qualified immunity because the invalidity of the arrest wasn’t clearly established by the case law prior to that time.
The appeals court disagreed. Noting that it was “not unusual” for deputy public defenders to be out of the courtroom when their cases were called, that it “typically took some time—and a few pages—to get them there,” Kozinski concluded:
“Li could not reasonably have believed that he had one of the usual Fourth Amendment justifications for the arrest. He had no warrant; Demuth was not suspected of a crime; he was not in hot pursuit or performing a community caretaking function, etc. No reasonable officer could have understood the referee as ordering that Demuth be forcibly brought into court.” While “challenging someone equipped with a badge, handcuffs and a gun to ‘arrest me’ was unwise on Demuth’s part,” the comment was legally irrelevant because “Demuth was obviously employing a literary device known as sarcasm,” the judge said. Importantly, Judge Kozinski than makes an important statement:
“[Demuth] could not have authorized her own arrest.”