No Immunity for Arresting Sarcastic Public Defender


     PASADENA (CN) – A Los Angeles County sheriff’s deputy who responded literally to a public defender’s sarcastic instruction that he arrest her is not protected by qualified immunity, the Ninth Circuit ruled Friday.
     Public defender Florentina Demuth was running late for a hearing at Los Angeles’ Los Padrinos Juvenile Courthouse and did not respond to several pages when the presiding referee in her case and Deputy Wai Chiu Li arrived at her office.
     The three-judge panel’s opinion notes that the situation was “not unusual,” since public defenders “were often absent from the courtroom when their case was called, and it typically took some time – and a few pages – to get them there.”
     Li repeatedly asked Demuth to come to the courtroom, to which Demuth responded, “‘Just a minute,’ or something to that effect,” according to the opinion. Li then raised his voice and demanded that Demuth come immediately.
     According to the opinion, Demuth’s response was, “If you want me to come right now, you’ll have to arrest me.”
     So Li handcuffed Demuth and escorted her to the courtroom, where he removed the handcuffs. The arrest lasted 11 minutes, the opinion said.
     Demuth sued Li and the Los Angeles County for violation of her Fourth Amendment rights. A federal judge found that the arrest indeed violated those rights, which the Ninth Circuit panel upheld, but that Li was protected by qualified immunity, which the panel reversed.
     “Li could not reasonably have believed that he had one of the usual Fourth Amendment justifications for the arrest,” Circuit Judge Alex Kozinski wrote in the panel’s 7-page opinion. “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.”
     Kozinski granted that although “challenging someone equipped with a badge, handcuffs and a gun to ‘arrest me’ was unwise on Demuth’s part,” her comment was legally inconsequential.
     “Demuth was obviously employing a literary device known as sarcasm,” he said.
     In the short opinion’s conclusion, Kozinski noted that “no one in this case has covered himself with glory.”
     He added, “What seems to be at stake here is little more than wounded pride. The dispute should have been resolved by an admission that the deputy violated Demuth’s constitutional rights, followed by mutual apologies and a handshake, saving the taxpayers of Los Angeles County the considerable costs of litigating this tiff.”
     Demuth’s attorney had not responded to a request for comment at press time.
     LA County attorney Steven Renick of the firm with Manning & Kass said, “We are, naturally, disappointed with the ruling and the Ninth Circuit’s decision not to adopt the well-reasoned legal and factual analysis of District Judge Michael Fitzgerald. We are reviewing the decision in order to determine whether to seek any further appellate review of this matter.”

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