Appeals court penalizes sheriff’s deputy for ‘frivolous appeals’ – even though fatal shooting was ruled ‘justified’

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KING COUNTY, WA — The U.S. Court of Appeals for the Ninth Circuit ruled last month that frivolous appeals were filed in a federal civil-rights case by the legal teams for a deputy sheriff and the county he worked in and sanctioned all the lawyers involved.

The court ordered that the legal teams for Deputy Cesar Molina and Martin Luther King Jr. County must pay $56,752 in fees and costs to the lawyers for the family of Tommy Le, who was fatally shot by Molina on June 14, 2017. The ruling was filed last month on Dec. 30.

The sheriff’s Force Review Board had previously concluded the shooting was justified.

According to a report by The Seattle Times, 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. It was also reported that Le was possibly armed with a knife or sharp object.

Molina was the third deputy to arrive and, according to his sworn deposition and court documents, confronted Le, who was barefoot and in boxers and a T-shirt, and shot him 105 seconds after his arrival, according to The Seattle Times.

Prior to the shooting, however, both 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 as a result. Later, it was determined that Le was holding a ballpoint pen. An autopsy and investigation also showed Le had been shot in the back.

An external review of the shooting investigation by the Los Angeles-based OIR Group was presented to the Metropolitan King County Council in September. That review into the shooting reported a “lack of rigor” and pointed to evidence indicating Le was likely moving away from both Molina and Owen.

Molina said he was trying to protect Owen 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 and called it an “obsession” in their report:

“Moreover, this obsession with whether Le had a knife when he aggressed the civilians extended to KCSO’s public statements about the incident. As noted above, initial public reports inaccurately stated that Le had a knife when he encountered deputies.

“And two months after the Use of Force Review Board convened, the Sheriff’s Office issued a public release of the Board’s findings. In that release, KCSO included photographs of knives taken from Le’s room and emphasized that two civilian witnesses had identified a photograph of a butterfly knife as resembling what they believed they observed in Le’s hand before deputies arrived on scene.

“What was not included in the public release was that the weight of the evidence suggested that Le never returned to his room between his encounter with civilians and his encounter with KCSO deputies, making the fact that knives were found in his residence essentially irrelevant.”

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The same review acknowledged deputies were informed by dispatch that Le was possibly armed with a knife, but that the possible threat was less relevant than the on-scene actions that the deputies took:

“The lengths to which KCSO detectives sought to learn whether Le actually possessed a knife during his encounter with the civilians stands in sharp contrast to the short-shrift devoted to the other and more critical aspects of the encounter, namely the on-scene deputies’ actions and decision-making.

“The fact that deputies were advised via radio that Le was possibly armed with a knife was important to consider; it increased the potential threat level that Le presented to them, even if he did not, in actuality, possess a knife.

“However, whether Le ever actually had a knife during his encounter with the civilians is less relevant in assessing the deputies’ actions once they arrived on scene.”

The attorneys for Le’s family initially requested $87,000 for fees, but received approximately $30,000 less. Philip Talmadge, one of Le’s lawyers who is also a former state Supreme Court justice, released a statement accusing King County of filing the appeal to delay trial proceedings:

“The taxpayers of King County are on the hook for nearly $57,000 because of a tactic used to delay trial. 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.”

The appeals judges granted the 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, according to The Seattle Times.

Last summer, the attorneys for the county and deputy filed an appellant response on July 24 and denied the appeal was a delay tactic and that the extra time actually benefited Le’s attorneys who decided to amend their complaint and add a new claim of negligence.

The appeals stemmed from a ruling in June 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.

After Zilly’s ruling, the case went to a three-judge panel at the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.

In granting the sanctions, the 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 appeals judges criticized Molina and the county for trying to argue facts that were in dispute — such as whether Le posed a threat to deputies — in violation of appellate rules and court precedent and wrote in their June 22 decision:

“Although it is undisputed that Molina had received reports that Tommy was armed with a knife or a pointed object, it is highly disputed whether Tommy was actually armed and whether Molina should have known that Tommy was unarmed when Molina encountered and shot Tommy.

“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 case was then dismissed for lack of jurisdiction.

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