*1 ciency.”). merely Because the enactment type the admission of a of evi-
permitted previously
dence that was excluded for the
purpose showing propensity, id.
the use of the evidence Doe’s trial did the Ex Post Facto
not contravene Clause.
CONCLUSION reasons, foregoing
For the granting
court’s order a conditional writ of corpus is AFFIRMED.
habeas
Georgia MILLER, individually; Denise
Bailey, as ad Guardian Litem for
P.A.M.; P.A.M., Jr., minor, and as representative
his authorized as suc Philip
cessor in interest Arthur
Miller, deceased, Plaintiffs-Appellees, ANGELES,
CITY OF LOS
Defendant-Appellant, Angeles Department;
Los Police Wil Bratton, Police;
liam Chief of Ce Mata, Sgt.,
sar Defendants.
No. 10-55235.
United Appeals, States Court of
Ninth Circuit.
Argued and Submitted June 2011.
Filed Oct. *2 City
Amy (argued), Deputy Field Attor- CA, ney, appellant City for Angeles, Los Angeles. Los (argued), Burton Law Offices of John Burton, Pasadena, CA, appellee for John Miller, Georgia et al. Hickambottom, Jr., Gronemeier &
Elbie Associates, P.C., Rock, CA, Eagle ap- Miller, et al. pellee Georgia KOZINSKI, ALEX Chief Before: IKUTA, Judge S. Circuit Judge, SANDRA PIERSOL, L. District and LAWRENCE Judge.* KOZINSKI; Judge Opinion Chief by Judge IKUTA. Dissent * ta, Piersol, sitting by designation. L. Senior Lawrence The Honorable Judge of South Dako- for the District District opposed
OPINION
but
sanctions on the
grounds
inadvertent,
transgression
fleeting
KOZINSKI,
Judge:
Chief
and harmless. Arias attached a declara-
*3
strange
This
a
case.
Its resolution
fault
admitting
apologizing.
tion
and
Ex-
absence,
matter,
as a factual
hinges on the
ercising its inherent power, see Chambers
accept
legal
must
as a
something
we
NASCO, Inc.,
32, 43-46,
501 U.S.
unlikely
many
are
to be
matter. There
(1991),
S.Ct.
This case arises from lawsuit filed power. inherent Primus Auto. Fin. family against Philip City Servs., Miller’s Batarse, Inc. v. Angeles, police department, police (9th Cir.1997)
Los
its
(quoting Roadway Express,
chief
Sergeant
Philip
and
Mata.
died after
752, 767,
Piper,
Inc. v.
100 S.Ct.
him,
plaintiffs
Mata shot
(1980)).
claimed
2455,
Plaintiffs moved for against summation was Sergeant about how Mata Arias for statement during perceived his first situation. This is Arias’s trial’s summation. argument, Defendants conceded entire with immaterial and re- that Arias had violated the in limine petitive portions order omitted: no physical position. There’s reason coming the decedent Anyway, he sees handing him like this. He’s happening to be Now, this is he thinks out. You’re walk- gоt pocket. that’s the time his hand his And second.... split happens. got left hand out. He’s ing to see what with the compute got he’s sees, oh, God, my going right. he’s hand over the left And he kid. do the thinks, God, my ... Mata Well, upon? Does he base what’s him; stops says, he going to kill so he’s objec- a reasonable —would he have says, the fuck down.” And he “Get “Get conclude officer tively reasonable Get the fuck down.” *4 down. that the dece- probability a fair
there’s he starts to use a All of a sudden threat of death an imminent posed dent emphasis more gives swear word. He injury? is it that bodily What or serious his command. The situation has upon opinion bases that Sergeant Mata Now it’s imminent threat of changed. Sergeant Does to make it reasonable? death.... He probability? a Mata have fair got ... does he do? He’s his What to do it. going he’s thinks in Does he take his pocket. hand Mata testi- Well, Sergeant this is what hand out so the officer can see it? The This is the evidence.... fied to. they’re taught testimony is—and it’s anybody brought plaintiff has why kill you.... hands that That’s Ser- Sergeant Mata said what contradict trying Mata to see where their geant is night.... he saw that what they present are. Do a threat? hands ... bring up? he his hands Did coming out the door right. All He’s keeps that? No. He his Did he do oh, my God. He’s thinking, he’s other hand pocket, hand his over. Well, does he see to do him. what going There’s no evi- It’s uncontroverted. that the dece- him to believe that leads contrary. Then he turns to dence to the kill him? going to dent is walking, and right and starts Ser- try- he is geant Mata describes it as if things that he sees. ... These are the gun Sergeant Mata. ing to hide the from is a com- body your mind your And — this. you’re computing all puter, hand in here and he’s got He’s his than a second to com- got And he’s less this, and all of a sudden walking up like come to the reason- this and pute all of says I don’t stops. Sergeant he Mata guy going is shoot conclusion able why.... know an imminent threat of the kid. He’s stоps. up.... He comes Okay. He there. killing that citizen down that moment where he And then there’s there. He’s stop right itBut doesn’t he turns to the makes a decision. And got his hand like this. He’s dressed left, Sergeants faces Mata. [sic] and he here, everybody acting else is over Now, toxicologist here’s where to him— up he walks differently. When that he was come in. We know does and erect walking deliberate and he’s .12, yeah. .12 or He had drunk. 14— him. And focused on that time and marijuana in he had alcohol. We know he say, Mata when Sergeant does what system. his gun has a in his guy that this believes I his mind. don’t Maybe that clouded he believes the reason that hand —and rage a be- Maybe he was some know. in the hand is got gun he’s and, just fought objection cause he with this kid THE COURT: The is sus- know, blood I you pumping. tained, statement is ordered happened, don’t know. But whatever stricken. of him got police he’s officer front MR. BURTON: Can the be admon- Silva, oh, Sergeant
when he saw
I’m
ished, your honor?
anywhere.
God,
I
trapped.
go
My
can’t
THE COURT: Yes.
ground.
man.
on the
Get down
End it
gentlemen,
Ladies and
remember
right there.
argument is not
evidence
the case.
He can’t because he had shot Bean
support
There’s no evidence to
inside.
last statement.
added.)
(Emphases
MR.
I
ARIAS:
stand corrected. There
consistently
The tale Arias narrates is
absolutely
no evidence that he
had
perspective.
from
Mata’s
He
his hand. Sergeant Mata even
get
tries to
to see the situation
that.
admits
*5
view,
policeman’s point
from the
which
perfect
given
makes
sense
For Arias to accept the district court’s
had to decide whether Mata acted like a
ruling
get
on with
trial
was entire-
reasonable officer. See Graham v. Con
ly understandable. But for him to admit
nor,
386, 396-97,
109 S.Ct.
transgression
to a
he never committed
(1989). Twenty
MR. Objection, your BURTON: important honor. limiting lawyers may when what
Move to strike. I mean— argue jury. lawyer’s job actually crossed the line Had Arias merely to rehash the is summation in the the district drawn sand suggest inferences also to evidence but to infer permissible would have been bad facts. proven from jury should draw surrounding plus faith from his action if he fails to advocate lawyer poor is a A any For such determina- circumstances. their common jurors to use nudge the judge considera- tion we’d owe left filling gaps experience sense Hinkson, deference. United States ble proof. (en (9th Cir.2009) doing Arias was precisely what This is banc). But no inference about Arias’s to ar- here, certainly entitled and he was committing of mind in the violation state reasonably be- Sergeant Mata gue that no viola- can be drawn when he committed posed a threat because that Miller lieved tion. The waiver establishes the violation Indeed, hard to it’s had shot Bean. he matter, any but inference that legal as a defending police lawyer how a imagine doing an evil state of mind in Arias had arguing circumstances can avoid these “illogical, implau- he didn’t do is something suspect reasonably believed the officer sible, support in inferences without [and] to hold that Were we dangerous. from facts in the rec- may be drawn sanctionable, the bar argument such ord.” Id. chill and it would doubtless would notice an additional reason we 3. There’s advocacy. zealous in the amount can’t sustain by the district court. It’s clear imposed *6 that Arias The fact remains court meant the sanctions to be order, that he violated conceded The amount sanctioned compensatory. to the argue otherwise defendants didn’t ($63,678.50) what the Millers precisely why the probably is which district for the first attorney’s claimed as fees to belabor the court saw no reason trial. The Millers asked for “sanctions amounts to a this concession And point. attorney’s the costs and fees which reflect deem a violation so that we must waiver trial,” first and that’s what for the appeal purpоses of this established for granting: “The district court said it was actually violate though Arias didn’t even Plaintiffs their reasonable awards to Court the order. incurred for the attorneys’ fees and costs of the trial.” conduct not, however, city did Arias and compen if the sanctions were in bad the violation was made concede that But to link satory, the district court had Arias’s faith; it here and they vigorously dispute by harm suffered question the unusual statement This raises below. words, amount In other faith for a Millers. finding treat a of bad how we for compensate had to Millers actually occur. awarded that didn’t transgression actually caused Arias’s damage acted the Arias couldn’t have conclude that We court not, fact, sentence. The district eight-word violate faith if he did in bad causation, and without finding made no You can’t have the district court’s order. chicken; eight that Arias’s words caused you finding a without parmesan chicken the district court jury hang, the first dream- amazing have an technicolor can’t defendants to authority no to order coat; have ham had you a can’t coat without attorneys’ for the plaintiffs eggs. compensate ham or you’re if short of eggs the first trial. they spent costs on fees and have a bad faith violation you And can’t (9th 1178, 1195 F.3d Dyer, In re 322 See a violation. without 1030
Cir.2003) (remanding “for a determination
The district
may
also have
meant
damages
of the Trustee’s actual
flowing
sanctions to vindicate the
authority
stay
from the automatic
violation
and deter
alone” if
future miscon
duct,
$63,687.50
but
is an
compensatory
up-
extraordinary
sanctions were to be
amount for such
held);
non-compensatory
B.K.B. v. Maui
sanc
Dep’t,
Police
276
tions.
(9th
We’ve held that
1091,
Cir.2002)
non-compensatory
F.3d
1109
(upholding
sanctions of that magnitude are akin to
compensatory
sanctions because
“the
criminal contempt
may
be imposed
amount
imposed
the court
reflected its as-
only by following
procedures
applicable
sessment of the actual harm
incurred
cases,
to criminal
including appointment of
Plaintiff’).
independent
prosecutor, proof beyond reasonable
jury
doubt and a
trial. F.J.
To the extent the district court tac
Enters.,
Hanshaw
Inc. v. Emerald River
itly
eight-word
found
sentence
Dev., Inc.,
(9th
1128,
244 F.3d
1136-42
jury
caused the
hang, any
such finding
Cir.2001) (citing
City
Blanton v.
N. Las
unsupported by
the record.
Immediate
Nev.,
Vegas,
538, 544,
489 U.S.
109 S.Ct.
ly
(1)
after
spoke
eight words,
those
(1989),
We voice”). remand, the dis- For this [counsel’s] flection sanctions. On imposing chooses, reason, “great if it further we owe may, hold deference” trict opinion, findings of the Pri consistent our factual with proceedings, Servs., Batarse, 115 sanction is war- mus Auto. Fin. Inc. v. any whеther to determine (9th Cir.1997) (quoting violation. for Arias’s conceded F.3d ranted Consulting Corp., v. Holman Townsend AND REMANDED. REVERSED (en (9th Cir.1990) 1358, 1366 929 F.2d banc)), has the to ob- opportunity which IKUTA, dissenting: Judge, Circuit the sanctioned misconduct party’s serve dis- attorney violated the The defense motive, can better assess factors like Everyone in limine order. trict court’s intent, credibility, Pac. Harbor see day agreed in the courtroom that who was Lines, Inc., Inc. v. Capital, Carnival Air court, the conclusion: the district with this (9th Cir.2000) (defer- 1112, 1119 defendant, attorney, plaintiffs “findings to the district of fact ring court’s Only attorney even the defense himself. credibility” and assessments counsels’ majority, perched high appellate in its judge hearings because the conducted tower, from the ability claims to discern ample opportunity “had evaluate the transcript trial that there was no such cold legitimacy justifications of counsels’ majority’s holding flouts violation. non-compliance their client’s continued review estab- the deferential standard of order”). majori- with the court’s Here the Hinkson, which lished United States v. ty does not even to consider Ari- attempt uphold court’s requires us to the district context, provid- misconduct in as’s instead unless im- “illogical, it was determination describing all of three ing sentences support or without in inferences plausible, leading up closing argu- events may be drawn from facts in the rec- Maj. op. ment. 1026. Because the Cir.2009) (9th ord.” 585 F.3d context makes clear that the district court (en banc). course, majority claims Of deciding did not abuse its discretion in striking it is down order, there was a violation of the in limine ruling that violated the provide I fuller discussion of facts. order, invalidating the dis- limine but imposition on the trict court’s of sanctions January early morning In the hours of ground that there was no violation of 10, 2007, Sergeant Cesar Mata of the Los *8 casuistry all. But does order at such Angeles Depаrtment fatally Police shot than re- nothing more skirt the deference at- Philip Arthur Miller. Miller had been by Hinkson. quired tending large party Lodge a at a Masonic Angeles in that a few Los had started
I earlier. The were called police hours out After fight party. make that a broke at the Our cases clear when Mata) (including ar- police Sergeant in a to determine position court is better rived, Lodge shots were inside the party engaged a sanctionable fired whether came of the build- people pouring than this which reviews and out conduct man, Sergeant Motor Mata saw one Levon ing. a cold record. See Lasar v. Ford Cir.2005) (9th Co., Bean, holding of his Lodge stumble out later, Miller exit- court’s determi- bloodied head. Seconds (deferring right Lodge with “hand in his that violated an ed the his plaintiffs nation counsel “[wjhat and his hand across his pocket and this front left noting limine order support” began walking Court, On the before it ap- torso record Sergeant direction. Mata shouted pears any Bean’s that no evidence ar- supports down, but to Miller did not get at Miller gument actually that Miller possessed then fired comply. Sergeant Mata two any firearm at the time he was shot Miller, instantly went shots who down.1 Sergeant Accordingly, Mata. as insofar injuries. Miller died from his to Motion seeks bar Defendants introducing argument from such ar- or § son filed a Miller’s mother and effect, guing to that the Court GRANTS City of against Angeles, Los lawsuit ruling not, the Motion. This does how- Angeles Department, Los Police Chief ever, testimony bar from Defendant Ser- Bratton, Sergeant of Police William geant Mata to his as state of mind or Mata, use of alleging deadly that Mata’s regarding beliefs whether or not Miller trial, unjustified. was Prior to force gun a ... concealing argument nor plaintiffs preclude moved to the defen- subject. from counsel on The de- “contending arguing dants from or (or argue fense cannot evi- introduce possession was in of a [Miller] firearm dence) actually possessed that Miller [Sergeant when shot and killed him” Mata] weapon when shot. produced because defendants had no discovery during supporting evidence such trial, day On the third before conduct- theory an “allowing argument such ing Sergeant a redirect examination of prejudice would both confuse the Mata, defense counsel Richard Arias re- plaintiffs.” plaintiffs expressed The quested a sidebar conference. Arias told concern that the defendants to “intend[ed] the court that he wanted respond ... might that a civilian argue have re- questioning by plaintiffs’ attorney moved the firearm from Mr. Miller’s about whether Mata had recov- before corpse the officers searched it.” (the ered a body firearm from Miller’s included, attachment, motion an The no), by answer being eliciting testimony analysis gunshot forensic some residue from Mata cases in guns about which had body. that was found on Miller’s This been removed peo- from bodies other report stated that the residue indicated ple. Arias that he stated wanted make (a) “may discharged Miller have” a fire- point “[j]ust you because didn’t (b) arm; had his hands otherwise in an find a didn’t mean that he didn’t have (c) residue; gunshot environment of or a gun.” pro- The court ruled that this particles received gunshot residue from posed questioning line of would violate its plaintiffs’ environmental source. The order in limine. Arias then to be asked motion also asked the court to exclude the order, relieved of the but the court denied “very equivocal” results of this forensic his request. analysis. sidebar, After oppose defendants his did the mo- re-direct exami- Mata, Although rules, tion. local nation of Sergeant under their *9 Arias asked: failure to do many you so could hаve been “How have “deemed times confronted to sought, consent” the relief in guns the district individuals with their hands before court granted nevertheless considered and this incident?” This drew an immediate merits, the motion on its ruling objection counsel, that: plaintiffs’ from which Sergeant off,” Mata later testified that he shot towards to finish Mr. Bean him or was Miller because he believed Miller had a hand- going Sergeant Mata. shoot gun pocket, in his "walking and was either got He’s No. What does he do? his Noting again that court sustained. pocket in the walks [and hand that Miller had a no evidence was there north].... in his hand at this possession, “in his gun that time,” ruled previously and that it had ques- this line of pursue could not ... Okay. stops. up
Arias He He comes And refused to hear that moment where he tioning, the court then there’s Immedi- a decision. And he turns to the on the issue. makes arguments further left, Mata. Sergeant[ ] and he faces interchange with ately after you “Hаve Sergeant toxicologist Mata: Arias asked Now here’s where guns before?” in. know that he was people arrested with does come We ever .12, yeah. drunk. He had .12 or objected. The Again, plaintiffs’ counsel 14— [,]14 marijua- alcohol. know he had We ques- that Arias could ask the court ruled system. na in his make it clear if he reworded it to tion I Maybe of show- that clouded his mind. don’t “asking purpose it for the he was Maybe rage know. he was a be- [in] mind at the in the officer’s ing was] [what just with this kid fought cause he had ruling, the In connection with this time.” and, know, you blood was pumping. instruction, jury limiting a gave happened, I know. But don’t whatever jury could consider explaining him got police officer front of he’s testimony experiences his Mata’s about [Mata], oh, I’m when he saw only as evidence of his state of other cases God, anywhere. My I trapped. go can’t shooting, not to mind at the time of the ground. man. Get down on the End possessed that Miller draw the inference right there. he was shot. gun when had shot Bean He can’t because he closing their ar- attorneys delivered inside. following day. During his guments on the objected counsel point, plaintiffs’ At this began discussing closing argument, Arias’s last statement and moved to strike first de- morning question. He Bean inside the that Miller had shot that Miller Sergeant Mata’s belief scribed objection, The court sustained the Lodge. Bean, the fact to kill based on going was statement, and admonished struck Lodge Miller exited the after in the “argument is not evidence (in people and that contrast Bean sup- and there was “no evidence case” Lodge) Miller running screaming from the that last statement.” Arias immedi- port slowly his hand his walking with was “I corrected. ately jury: said to the stand gun. if Arias then he had pocket, absolutely [Mil- no evidence There is describing Miller’s behavior: began Arias then had a his hand.” ler] closing argument and the complеted his [Bean], looking at up walks [Miller] jury. After was submitted to the case this, and all of a him his hand like with days, deliberating for three up he looks in a startle because sudden unanimous verdict and unable to reach a first police officer for the he sees the mistrial. court declared a screaming at [Mata] time because * * 2, 2009, him, moved plaintiffs f* down. Get down.” March “Get the On at that Arias for his state- against does he do up He looks and what that Miller “Okay. during closing argument go, at that time ment time? Does he *10 motion, plaintiffs In their easy. Easy had shot Bean. Hey, getting I’m down. contributed argued that Arias’s statement ...” Does he do that? hung jury requested and therefore the statement that Miller shot to the Bean in amount of their costs and day seeking the “one after ‘clarification’ of the motion, opposing In the attorneys’ and, fees. subject Order on Court’s the after the statement City the conceded that vio- being ruling, seeking reminded of thе be- because, in limine order reconsidered,” lated the court’s latedly to have it the court context, implied it that “Miller drew his stated that it logic” “defie[d] to think that Temple Bean inside the and gun and shot pur- Arias did not make the statement on him then followed outside order to finish Second, pose. the court pointed out that off, give coup grace.” him him the de not a supported “shred of evidence” admission, By City’s own the content contention that Miller had shot Bean in- “contrary of the statement was to the Lodge. Finally, side the the court noted court’s order and evidence.” Never- [the] trial, that before the close of it had re- theless, City opposed sanctions on the juror anyone ceived a note from a if asking (1) grounds that slip the statement was a prosecuted Bean,2 had been for shooting tongue of the rather than willful disobedi- gave Arias knew this fact when he his (2) order; ence of a сourt the court should closing argument. City relieve the from Arias’s mistake un- explained why The court also it thought 60; der Federal Rule of Civil Procedure warranted, a sanction noting was that Ari- (3) the court given had a curative as’s statement not violated the in (4) statement;
instruction after Arias’s beyond limine order but “went there was no evidence had stating as a fact not only had a [Miller] relied on Arias’s statement and thus no gun, he had used it to shoot Mr. Bean evidence that the statement had caused Lodge.” inside the Masonic That state- the mistrial. City’s oppo- Attached to the ment “inflammatory” was both and “seem- papers sition awas sworn declaration from ingly designed ... appeal specu- Arias in which apologized he for his state- jury,” lations of the and the court reasoned ment, “freely, openly which he and una- if conduct, it did not sanction Arias’s bashedly contrary admitted] issuing “would be an invitation to coun- court’s Motiоn in Limine order.” closing sel to insert into argument a state- a hearing
After on the sanctions request, support ment that has no in the record.” the court granted plaintiffs’ motion. Therefore, the court invoked its “inherent sanction, In the imposing order power” impose federal tribunal to court stated that deliberately and monetary against City sanction willfully violated the court’s in limine order plaintiffs awarded their “reasonable attor- and thus engaged conduct “tantamount neys’ fees and costs incurred for the con- to bad faith.” gave The court several rea- trial,” duct of the which the court calculat- First, sons for this conclusion. the court $63,687.50. ed to be pointed out day that “[t]he before his clos- II
ing argument, requested Mr. Arias a side- bar ‘clarify’ conference for the Court to majority its claims Motion in ruling Limine specify No. court erred in finding single bad faith for a testimony what he could elicit without vio- reason: that Ariаs did not violate the dis- lating ruling.” Given that Arias made trict Maj. limine order. op. any- The record does not indicate whether Bean. was, fact, prosecuted one shooting
1035 record,” in the id. at from facts drawn cannot withstand This conclusion 1029. 1251. scrutiny. the district reverses majority Here the matter, City con- the threshold
As a
(1)
grounds that:
court on the
in limine
violate the
Arias did
that
ceded
literally violate the or-
not
acknowledges,
statement does
majority
order,
as the
der,
nothing
Miller
“says
about
because
us “to deem
requires
this concession
Mata”;
when he confronted
being armed
of this
purposes
for
established
violation
(2)
the
majority does not think
the
1029. That should be
Id. at
appeal.”
that Miller still
clearly implies
leap,
statement
illogical
But in an
matter.
end of the
he shot Bean
with which
the dis- had
to hold that
majority goes on
(the
Miller
majority speculates)
ruling
because
its discretion
trict court abused
it.
faith— could hаve discarded
violated the order
bad
that Arias
majority’s de novo re-
under
because
completely
is
approach
novo
This de
at all.
view,
not violate the order
did
Arias
Hinkson,
to which
contrary
according
no sense.
makes
This conclusion
See id.
for
simply substitute our
may
“we
not
view
for the
adequate support
find
Once we
court, but rather must
that of the district
violated
ruling that Arias
district court’s
findings
court’s
defer-
give the district
order,
ignore that
we cannot
limine
Hinkson,
at 1262. The
585 F.3d
ence.”
district
assessing whether the
ruling when
command,
based on
majority ignores
Arias acted with
finding that
court’s
First, it
reading of the law.
an erroneous
“illogical, implausible,
intent was
requisite
the words
used
import
of no
that
Arias
is
may
that
support in inferences
or without
the order.
La-
literally violate
In
did not
Rink-
facts in the record.”
from
be drawn
sar,
court deter-
example, the district
son,
1251.
F.3d at
585
defense counsel’s statement
mined that
local
visited “somе
establish-
any
plaintiff
City had not waived
if the
But even
prohibit-
order
the court’s
the ments” violated
as to whether
violated
argument
had been
plaintiff
ing arguments
authority
no
order,
majority has
alcohol,
had
though
even
counsel
drinking
A district
issue de novo.
review the
directly
carefully to avoid
chosen his
has vio-
words
party
that a
court’s determination
Lasar,
F.3d at
order.
399
evidentiary violating
an
in limine order is
lated an
to the district
We deferred
1114-15.
for abuse of discre-
ruling
we review
inability to
our
consider
Lasar,
emphasizing
1115
12. It is
399 F.3d at
n.
tion.
coun-
of defense
“tone and inflection”
here
the district court
undisputed
holding that
the district
voice and
for im-
sel’s
legal standard
correct
stated the
interpreta-
clearly err
its
did
power.
court
not
in its inherent
posing sanctions
state-
message that the
of the
tion
overall
application
court’s
Because
is
id. at 1115. Nor
ment
See
conveyed.
at trial
they
occurred
facts
law the
majority
to reverse
essentially fac-
entitled
inquiry
an
that is
“requires
Arias’s statement
because
Hinkson,
merely
tual,”
(quoting
interpreta-
than one
to more
susceptible
McConney, 728 F.2d
v.
United States
tion,
up
can dream
Cir.1984) (en
majority
banc),
and the
(9th
overruled on
Maj. op. explanation.
innocent
by Estate Merchant
grounds
other
auto-
(9th
do not
explained, “we
As Hinkson
Cir.
C.I.R.,
1392-93
F.2d
a district
factual
matically reverse
ruling
1991)), may
reverse such
we
‘essentially
applica-
factual’
finding [“[o]r
or with-
“illogical, implausible,
unless it is
if we decide
‘mistake
law”]
tion of fact to
may be
in inferences that
out support
*12
” Hinkson,
has been committed.’
hold
application
the
of that fact to the
(emphasis
n. 22
in original)
1263 &
imposing
standard for
sanctions.
1202).
(citing McConney, 728 F.2d at
Our
And even
majority’s
the
erroneous de
job
appellate panel
as an
is limited to novo review is flawed.
majority
The
considering whether
court’s
claims that Arias did not violate the order
by
supported
conclusion is
inferences that
because his “summation was about how
record,
can be drawn from the
and here it Sergeant
perceived
Mata
the situation.”
can,
clearly
City’s
as demonstrated
the
Maj. op. at
(emphasis
original).
the
acknowledgement
Arias’s
the But
majority
the
portions
focuses on the
of
court’s
had been violated.
can-
order
We
transcript
view,
the
support
ignor-
its
simply
reverse the district court
be-
ing the crucial shift in perspective before
cause
have drawn
we would
a different Arias’s statement
that Miller had shot
inference. See id.
face,
Bean. On its
portion
relevant
of
closing argument
Arias’s
portrayed Mil-
Indeed,
majority’s contrary
ap-
ler’s mental state and conduct from Mil-
proach here
run
makes
end
around
perspective,
ler’s
not from Sergeant Mata’s
In upholding
Hinkson.
a district court’s
perspective.
language
described what
trial,
denial of a motion for a new
Hinkson
Miller was thinking and seeing:
held that the district
“findings
court’s
And then there’s that moment where he
fact,
application
and its
findings
of those
Maybe
makes
decision....
he was [in]
standard,
fact to the
legal
correct
were not
a rage
because
fought
he had
with
illogical, implausible, or without support in
and,
know,
you
kid
the blood was
may
inferences that
be drawn from the
pumping.... But whatever happened,
facts
the record.”
Id. at 1267. The
got
he’s
police
officer
front of him
majority’s approach bifurcates this stan-
[Mata],
when he saw Sergeant
oh, I’m
dard:
it allows
reviewing
up-
trapped.
I can’t go anywhere.
God,
My
hold the district
“findings
court’s
of fact”
man. Get down on
ground.
End it
but then
“application
reverse the court’s
right
there. He can’t because he had
findings”
issue,
those
a legal
not be-
shot Bean inside.
cause the district
application
court’s
еrroneous but because
findings
were.
It is
argue
difficult to
that Arias’s descrip-
sounds,
As illogical as that
it is exactly tion of Miller’s decision-making process,
what
majority
does here.
up-
After
including use of the
person,
first
was not
holding the district court’s factual finding from
perspective.
Miller’s
conveyed
Arias
(that Arias
order),
violated the in limine
unambiguous
message that Miller
the majority strikes down the district
thought he could not surrender to the offi-
application
of that fact
legal
cers
caught
because he was
red-handed
standard for imposing sanctions on the
with the
he had used to shoot Bean
ground that Arias did not actually
Lodge.
violate
inside the
more,
What is
the ma-
the order. This makes no sense.
jority
Once
explain
fails to
portion
of the
(as must)
the court has concluded
transcript directly
statement,
before this
the district court’s determination that Ari-
in which
speculated
that the alcohol
as’s statement violated the in limine order
marijuana
system
Miller’s
at the
amply
supported by “inferences that
time of
shooting may
have “clouded his
may be
record,”
drawn from
facts
mind.”
Because
Mata could not
id. at
as well
City’s
and have known about
the toxicologist’s lab
admissions,
Arias’s own
we must
up-
Miller,
also
results
the time he shot
conduct constituted bad faith
judgment
that Arias’s
clouded
of Miller’s
description
*13
about
or
illogical
implausible and had
have been a statement
was not
could
Clearly,
record;
the dis-
beliefs.
in the
are there-
ample support
Mata’s
we
made a reasonable determina-
uphold
majority
court
The
trict
bound to
it.
fore
shot
that Miller
Arias’s statement
tion that
conclu-
no reason
overturn this
gives
Lodge
intended as
(and
the
inside
Bean
impermissible
than the
sion—other
fact.
of
statement
reason that Arias violat-
incomprehensible)
matter”
legal
the in limine order “as a
ed
Ill
Maj.
of
op.
as a mattеr
fact.
but not
district
uphold
we must
the
Because
the
ruling that Arias violated
court’s
standard,
the
any
under
limine order
IV
violation
left
is whether
such
question
to bad
or was tantamount
“constituted
gives
why
majority
The
another reason
Primus,
(quoting
ing
adopted
we
standard
have
Hinkson
$996,644.65).
further
the amount
elides the deference due
trial,
protections
of a
inde-
procedural
impose
court’s decision to
its
prosecutor,
reasonable-doubt
pendent
*15
Hinkson,
power.
inherent
As we said
only when
proof
necessary
of
are
standard
special
owe
to
we
deference
the district
“crim-
imposes sanctions that are
the court
“questions
court when
comes to
such as
nature,”
as
not civil sanctions such
inal
intent,”
“applica-
motive
where the
[and]
Lasar,
at
F.3d
those at issue here.
399
requires
of the rule
law to the
tion
of
facts
Union,
(citing
Mine
1110
Int’l
United
essentially
inquiry that
factual —one
826-27,
821,
Bagwell,
v.
Workers
application
is founded on the
of the
(1994));
2552,
L.Ed.2d
114 S.Ct.
129
642
fact-finding
experience
tribunal’s
with
Enters.,
Inc.
Emerald
Hanshaw
v.
F.J.
of
mainsprings
human conduct.” Hink-
(9th
Dev., Inc.,
1128,
244 F.3d
1143
River
(internal
son,
quota-
Primus, unique F.3d abili-
ty to motive and intent based on assess observations, Lasar, 399 see F.3d
firsthand very Accordingly, little. count for
I respectfully dissent. FAUGHT, Faught,
Laura Steven on be
half of and all others simi themselves situated,
larly Plaintiffs-Appellees, Howe, al.,
John et Intervenors-
Plaintiffs,
AMERICAN HOME SHIELD
CORPORATION, Defendant-
Appellee, Shepard, Shepard,
Robert Luz Janet
Tzendzalian, Merlyn Rosalyn Lind, D.
Urbanek, Interested-Parties-Appel
lants.
No. 10-12496.
United States Court of Appeals,
Eleventh Circuit.
Oct.