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Frivolous Appeal in Section 1983 Case

Perhaps channelling Seventh Circuit Judge Easterbrook, Judge Alex Kozinski is frustrated with the lawyers who appealed a verdict in a Section case with these facts:

The facts are remarkable. Plaintiff, Susan Frunz, and her two guests were in Frunz’s home in Tacoma, Washington, when police surrounded the house, broke down the back door and entered. The police had no warrant and had not announced their presence. Frunz first became aware of them when an officer accosted her in the kitchen and pointed his gun, bringing the barrel within two inches of her forehead. The police ordered or slammed the occupants to the floor and cuffed their hands behind their backs—Frunz for about an hour, until she proved to their satisfaction that she owned the house, at which time they said “never mind” and left.

Judge Kozinski continues:

Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found officers Stril, Morris and Alred treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.10

FN10 Defendants and their counsel shall show cause within 14 days why they
should not be assessed double costs and attorney’s fees for filing a frivolous
appeal.

Ouch. 

I feel for the lawyers, though.  Institutional clients - like the City of Tacoma, Washington - are frequent flyers in civil rights cases.  Refusing to file an appeal could mean the loss of a substantial book of business.  "We'll find some lawyers who are willing to provide zealous advocacy!"  How would you like to explain to your partners that you lost a substantial client?

And the way the appeallate system operates in fact, allows civil defendants to appeal whatever issue they want.  I can't remember a case where a civil defendant (other than a tax protester) was ever required to pay double costs for filing a frivolous appeal.  Appellate courts let civil defendants get away with procedural murder.  So the lawyers were reasonably operating within the system when they filed the appeal.

In a perfect world, lawyers are supposed to act as a voice of reason in the process.  "Liability was clear.  The jury's verdict will not be disturbed."  But as Norm Pattis has pointed out, refusing to cater to a client's ever whim might lead to censure from the State Bar.

Until various State Bars require lawyers to act as a voice of reason in the adversarial process, rather than as hammers to be pounded at will, censuring lawyers for filing an appeal seems improper.

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