SEATTLE – The 9th Circuit Court of Appeals has sanctioned lawyers for King County and a deputy sheriff for filing frivolous appeals in a federal civil-rights case filed by the family of Tommy Le, a 20-year-old Burien man killed while wielding a ballpoint pen.
In a rare ruling, the appellate court ordered the attorneys for Deputy Cesar Molina and the county to pay $56,752.60 in attorneys fees and costs to the attorneys for Le’s family, Jeff Campiche, Philip Arnold and Philip Talmadge, for their work to oppose the appeals.
Talmadge, a former state Supreme Court justice, in a statement Thursday accused the county of filing the appeal to delay taking the case to trial.
“The taxpayers of King County are on the hook for nearly $57,000 because of a tactic used to delay trial,” he said. “Hopefully, the county’s leadership and its attorneys will get the message that it’s time to resolve the case of Tommy Le’s unjustified shooting.”
Le’s attorneys had asked for more: $87,000, but they only got the $57,000.
The appeals judges granted Le’s motion for sanctions under Rule 38 of the Federal Rules for Appellate Procedure, which states that “if a court of appeals determines that an appeal is frivolous, it may … award just damages and single or double costs.” The 9th Circuit granted Le’s attorneys double costs.
In appellate pleadings, the county has denied the appeal was a delay tactic and pointed out that the extra time gave Le’s attorneys an opportunity time to amend their complaint to add a new negligent claim.
Le, 20, who was under the influence of hallucinogens on the night before his high school graduation, reportedly ran at deputies who had responded to a report of a disoriented man, possibly armed with a knife or sharp object the evening of June 14, 2017.
Molina was the third deputy to arrive and, according to his sworn deposition and court documents, confronted the diminutive Le, who was barefoot and in boxers and a T-shirt, and shot him 105 seconds after his arrival. In that period, Molina and another deputy, Tanner Owen, unsuccessfully tried to incapacitate Le with Tasers before Molina shot him, according to reports.
The Sheriff’s Office initially reported Le had attacked the deputies with a knife or sharp object and was shot in self-defense. An autopsy and investigation showed Le had been shot in the back.
The sheriff’s Force Review Board concluded the shooting was justified.
An outside review of the shooting investigation presented to the Metropolitan King County Council in September, found the internal investigation into the shooting showed a “lack of rigor.”
The report pointed to evidence indicating Le was likely moving away from both Molina and Owen, whom Molina said he was trying to protect, when the shots were fired. The review said the sheriff’s investigators never explored the inconsistencies in the evidence and spent an inordinate amount of time trying to find a nonexistent knife.
The appeals stemmed from a ruling by U.S. District Judge Thomas Zilly, who refused to extend qualified immunity to Molina and held that the county could be held liable through his actions.
In granting the sanctions, a three-judge panel at the San Francisco-based federal appellate court found that Molina and the county had wasted resources and the court’s time in seeking an “extraordinary remedy” for an adverse legal decision, then reverting to arguing disputed facts to the judges despite having been warned not to, according to court filings.
The justices dismissed the appeals in a terse order filed in June and referred the issue of sanctions to the court commissioner, who on Wednesday ordered the $56,752.60 paid “jointly and severally,” meaning King County and Molina’s private attorney, Timothy Gosselin, will have to work out who pays what, because they’re both on the hook for the full amount.
Gosselin did not respond to an email sent Wednesday morning seeking comment. Emails seeking comment from lawyers in the King County Prosecuting Attorney’s Office Civil Division went unanswered. Casey McNerthney, a spokesman for King County Prosecutor Dan Satterberg, said he reached out to the office’s Civil Division on Thursday but did not have a comment.
The appeals judges were sharply critical of Molina and the county for failing to argue its legal point from a position that accepts the facts of the case in a light most favorable to the plaintiff, Le. Instead, they tried to argue facts that are in dispute – such as whether Le posed a threat to deputies – in violation of appellate rules and court precedent.
“Because Appellants do not accept Le’s version of the facts and fail to present a question of law, we lack jurisdiction to consider the appeal,” the judges wrote.
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