by Carolyn Bick
Even for a seasoned lawyer like Phil Talmadge, the fine the Ninth Circuit Court of Appeals has leveled against King County, the King County Sheriff’s Office deputy who shot Tommy Le, and — in what Talmadge says is also an unusual move — their lawyers, is a surprisingly hefty one: $56,752.60.
“The federal appellate courts, like Washington State appellate courts … are reluctant to award sanctions for a frivolous appeal. It doesn’t happen commonly,” Talmadge said. “There really [has] to be … a pretty flagrantly frivolous appeal before a court imposes the kind sanctions the Ninth Circuit [Court of Appeals] imposed. … There has to be no legalistic basis for the appeal. And that’s essentially what the Ninth Circuit said.”
The sanctions are one of the latest legal moves in the ongoing civil rights case the Le family and their civil case lawyers have brought against the officer, then-Deputy Cesar Molina — now Deputy Sheriff Cesar Molina — and King County. Talmadge worked as the appeals lawyer with the Le family and their civil case lawyers in a motion for sanctions (a penalty); in this case, the more than $56,000 fine leveled against the defendants and their lawyers. The fine is the total amount of money the court found that the Le family has spent specifically to fight an appeal filed by Molina, King County, and their lawyers just prior to the commencement of their trial, an appeal the plaintiffs argued was a frivolous delay tactic.
The Le family and their lawyers argued the last-minute appeal was made in bad faith, meant to do nothing but delay the trial that had been slated for June 2019. After more than a year of deliberation, the Ninth Circuit Court of Appeals agreed that the appeal was indeed frivolous and imposed sanctions in June 2020.
And now, in addition to costing the Le family nearly two years — between the June 2019 original trial start date and April 2021, when the trial is now set to begin — the appeal has cost taxpayers a substantial chunk of money.
The $56,752.60 check to pay the fine came from the Finance and Business Operations Division of King County and was included in a Jan. 12 filing in PACER, the online national courts records system. The Emerald has included an image of this check from PACER below. This check was signed by King County Executive Dow Constantine. The King County Executive’s Director of Communications Alex Fryer said in a Jan. 11 email to the Emerald that the money comes from King County’s Insurance Fund, which he said is a “designated budget to pay for claim and litigation expenses and settlements.” He confirmed in a Jan. 12 email that this means that taxpayers have, in part, paid for an appeal the Ninth Circuit Court of Appeals deemed frivolous.
Additionally, Fryer said that the County paid the entirety of the sanctions out of the King County Insurance Fund, even though the Ninth Circuit Court leveled the sanctions against King County, Molina, and their lawyers. This is due to certain King County Code requirements, Fryer said.
On a dark June night in 2017, King County Sheriff’s Deputy Cesar Molina shot and killed 20-year-old Vietnamese American student Tommy Le. Following the release of false information from the King County Sheriff’s Office (KCSO), apparently knowingly, that claimed that Le had a knife and was threatening both neighborhood residents and police, and that Molina shot Le in the front of his body. Key evidence that included the autopsy report revealed that Le not only didn’t have a knife but that he appeared to be running away from Molina and the other responding KCSO deputies and that Molina shot Le in the back. With lawyers Jeff Campiche and Phil Arnold, of Campiche Arnold, PLLC, the Le family brought a civil rights case against Molina and King County in 2018.
But almost four years after Le’s death, the case has yet to go to trial. Thus, in autumn 2020, the Emerald decided to do a deep dive into the shooting itself and subsequent internal investigation carried out by the KCSO. To date, the Emerald has published three stories in this series, the first two of which deal with the shooting itself and subsequent investigations.
In its third and most recent story, the Emerald laid out the contention that the King County Prosecutor’s Office (KCPO) faces a conflict of interest in the Le case, which may have disincentivized the office, led by King County Prosecutor Dan Satterberg, from referring the case to the State Attorney General’s office for possible criminal prosecution.
In this third story, the Emerald also discussed Molina’s eleventh-hour appeal to the Ninth Circuit Court of Appeals, an appeal that the court ultimately deemed frivolous, to grant him “qualified immunity” — essentially, an official legal ruling that would recognize Molina was acting within the scope of his duties when he shot Le multiple times in the back. The story discussed the related now-deemed frivolous appeal filed at the same time by King County, an appeal to grant a summary judgement (a ruling without trial) on a legal aspect of the case that, had King County been granted this summary judgement, would have effectively shielded the County from liability for Molina’s actions in 2017.
Just weeks before the trial was set to begin in June 2019, Molina and King County asked U.S. District Judge Thomas Zilly, who is presiding over the case, to grant them the requested qualified immunity and summary judgement. Zilly denied the request but allowed Molina and King County to appeal, if they so chose to, which they did. Molina’s and King County’s appeals were consolidated and sent together to the Ninth Circuit Court of Appeals. The appeal has delayed the trial for nearly two more years. The trial is now set for April 19, 2021.
As of the writing of the third story, the court had not issued the fine amount or any further documents on the matter. In June 2020, the Ninth Circuit Court handed back its decision: the appeals were frivolous, and Molina and King County would be sanctioned.
On Dec. 30, 2020, the court issued a fine — and even though it wasn’t the amount requested by the Le family and their lawyers, it was still quite large, Talmadge said. But what also stuck out to Talmadge is the fact that the court also made Molina’s and King County’s lawyers pay the fine. Their respective lawyers are Molina’s private attorney Tim Gosselin and the KCPO, which is bound by law to defend the County.
“It’s fairly unusual for the court to sanction the lawyers themselves. That’s not usual,” Talmadge said.
The Le family and their lawyers originally asked that the court award the Le family $87,440, which a legal document the Le family’s lawyers filed in early September 2020 says covers “appellate attorney fees and double costs as just damages.” Though the court subtracted a little more than $30,000 in its sanctions, it did not bar the Le family from seeking the rest of the requested amount in the future, Talmadge said.
“The court limited its sanctions specifically to those … that were associated with the finding of the frivolous appeal and the frivolousness of the appeal itself. It said that certain of the extensions that were sought were not specifically related to or implicated by the frivolous appeal and reduced those accordingly,” Talmadge explained. “Those are the actual out-of-pocket costs that the family has incurred, by the way, in dealing with the motions of the trial court, the effort to declare this appeal to be frivolous … and then the appeal itself. And I should point out that, if we are successful at trial, if Jeff [Campiche] and Phil [Arnold] are successful at trying the case, they would be able to recover those fees as part of a 42 U.S.C. 1988 request.”
A “1988 request” refers to 42 U.S.C. § 1988, which allows the party who wins a trial to recoup expenses for attorney and expert fees. Talmadge said that, because of this, the more than $30,000 in sanctions that the Ninth Circuit Court of Appeals ultimately denied in this specific instance should be recoverable, if the Le family prevails in the civil suit.
As stated above, even though the court leveled the fine against Molina, the County, and their respective attorneys, the County paid the entirety of the fine. Fryer said the County is required to “indemnify” — basically, financially cover — its employees under County code. He also said in his Jan. 11 email that, because Gosselin represents Molina, a county employee, and acts on Molina’s behalf, “King County Code requires indemnification” of Gosselin, too.
Fryer explained further in a Jan. 12 email, saying that the Ninth Circuit Court of Appeals “imposed the sanction solely on King County and Deputy Molina as parties to the case,” and because an additional liability requirement was added that the sanction be so-called “joint and several,” the attorneys named in the sanctions would only be responsible for covering the fine, if the other parties named in the case were unable to cover it.
“There was no order … apportioning any amount to the attorneys, nor did the Commissioner order that the attorneys cover a particular portion of the award,” Fryer said in the Jan. 12 email. “Because King County was ordered to pay the award, has the full capacity to pay the award, and has actually has paid it, the provisions of the Commissioner’s order making the attorneys jointly and severally liable do not come into play.”
Regarding the King County Insurance Fund from which Fryer said that the money for the sanctions came, Fryer said that the King County Council “approved the actuarially determined budget for claims against the county of $23.9M for 2020. The fund is designated for claim and litigation payments, and expenses associated with investigating and defending claims and lawsuits.” He said that the King County Insurance Fund is “funded by charges to other agencies based on their risk exposure and prior claims experience. County revenues are comprised of local, state and federal taxes, grants and charges for services.” This means that some of this money comes from taxpayers.
The Ninth Circuit Court of Appeals’ Chief Deputy Clerk Susan Gelmis told the Emerald in a voicemail on Jan. 12 that the only thing the court did was to impose sanctions and did not define how those sanctions should be paid.
“That is not something our court has anything to do with at all. Our court simply decided that those parties should be sanctioned in a specific amount, period,” Gelmis said. “Who pays for that — how that is handled, under County code — is absolutely not something that the Ninth Circuit would have anything to do with. That is a local decision by the County under their own codes and … insurance policies, etc., that we would not be involved with in any way, shape, or form. All we did was sanction those parties … and say that they need to pay this amount.”
Molina’s lawyer, Tim Gosselin, did not respond to the Emerald’s requests for comment, despite repeated follow-ups via email.
Talmadge said that, in his professional opinion, Molina’s and King County’s consolidated appeal was nothing more than a delay tactic, and that the Ninth Circuit Court of Appeals recognized it as such. He says that he believes this is why the court imposed such hefty sanctions — and did so against the lawyers in the case, not just King County and Molina.
“Courts are not potted palms. They are aware of trial lawyers’ tactics and parties’ tactics in litigation,” Talmadge said. “This was a case where trial was pending, and it’s in the County’s interest to delay trial as much as possible. And they have done that. This is a case that has wended its way slowly through the justice system, and it is in no small part due to things like this appeal. I think the panel was very well aware of that, and they didn’t like what was going on.”
With regards to the fact that taxpayers are on the hook for the sanctions, Talmadge said in a Jan. 12 email that he believes the main takeaway is that the Ninth Circuit Court “sanctioned the County and made it and its lawyers jointly responsible for the sanction.”
“The taxpayers are bearing the expense of that sanction needlessly,” Talmadge said. “The County and its lawyers should never have filed this baseless appeal that delayed justice for Tommy Le.”
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