Seattle Loses Control

To be sure, the three police officers represented by Ted Buck are scum.  Their conduct can be swiftly summed up :


–tasing a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and get out of her car–

Nice, huh?  There’s no question that they did this to Malaika Brooks, though thankfully her child was born unharmed.  And who are these tough, brave heroes? Sgt. Steven Daman, Officer Juan Ornelas and Officer Donald Jones.  Just so you know.

When the case was first considered by a 9th Circuit panel, Judge Diarmuid O’Scannlain  rubbed their belly and told them they were good boys.


But in a 2-1 ruling [March 26, 2010], a panel of the 9th U.S. Circuit Court of Appeals disagreed. Judges Cynthia Holcomb Hall and Diarmuid F. O’Scannlain held that the officers were justified in making an arrest because Brooks was obstructing them and resisting arrest.

The use of force was also justified because of the threat Brooks posed, Hall wrote: “It seems clear that Brooks was not going to be able to harm anyone with her car at a moment’s notice. Nonetheless, some threat she might retrieve the keys and drive off erratically remained, particularly given her refusal to leave the car and her state of agitation.”

They also noted that the force used wasn’t that serious because the Taser was in “touch” mode rather than “dart” mode, which hurts more. They reversed the lower court’s opinion and held that the officers were entitled to immunity from the lawsuit.

En banc, the Circuit flipped.  Now the three heroes aren’t as happy, and they’ve asked their lawyer, Buck, to fight for their right to taser at will with complete impunity.  And here’s where the problem arises.  Buck, whose representation is being paid by the City of Seattle, is seeking certiorari to the Supreme Court.  Seattle is not pleased.



Ignoring Seattle Police Chief John Diaz, a private attorney hired by the city to defend three officers who were sued after they repeatedly tased a pregnant woman during a 2004 traffic stop has asked the U.S. Supreme Court to hear the case.


In an extraordinary response, the city has informed the attorney, Ted Buck, that he was not authorized to ask the high court to take the case on appeal, and that the city won’t pay the costs of pursuing it.

A letter from the City Attorney lays it out:

“You undermined the City’s position with the officers and then chose to push forward with the petition ostensibly on their behalf,” City Attorney Pete Holmes wrote in a pointed letter to Buck on Wednesday.


“In addition, we believe you have compromised your ethical obligations,” Holmes wrote.


As much as these three hero cops deserve everything the system can dump on them, Ted Buck is doing what he is required, both ethically and legally, to do.  And the City of Seattle is absolutely, totally, completely, wrong.

That Seattle is paying the freight for the representation of the three heroes confers no control whatsoever over the representation.  Buck represents the mutts, and his loyalty and duty is to them alone.  The guy signing the checks doesn’t get to call the shots, and Buck owes the City nothing.  Seems wrong?  Seems like whoever pays gets to make the decisions?  Not when it comes to legal representation, where the duty to zealously defend is owed to the defendant, regardless of whether the City indemnifies their legal fees or not.

This is a relatively constant issue arising in law, where the representation is funded by a third party, and the third party wants at least a voice, if not control, over the decision making.  The normal practice is to thank the party handing over the fee, but stating with crystal clarity that while their help is appreciated, all decisions remain those of the individual(s) being represented and being the funding source provides them with neither access to confidential information nor a vote in any choices to be made.  If they don’t want to pay under the circumstances, that’s fine.  But they still get no say.

As for Buck, his decision to pursue cert may be just about the best thing going for our deep concern about the welfare of the three heroes.



The City Attorney’s Office determined a Supreme Court appeal was unwise. In a Dec. 19 meeting between the office and Buck’s law partner, Diaz agreed, joined by Mayor Mike McGinn’s legal counsel.


As outlined in the letter to Buck, the city determined the facts — tasing a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and get out of her car — “unduly risk creating unhelpful Supreme Court precedent on taser use.”


Indeed, this atrocious case (to everyone other than the original 9th Circuit panel and those for whom the police can do no wrong) seems destined to produce some interesting precedent, given the egregious and inexcusable conduct of our three heroes.  A perfect case for review by the Supremes, to finally put a lid on the use of tasers whenever it’s convenient and without regard to need or justification for the use of force.

And if the City of Seattle doesn’t like pissing away it’s money on out of control cops, and the lawyer who loves them, then it might want to consider doing whatever it can to protect its residents from the physical and civil rights abuses perpetrated by members of its police force before they tase a pregnant woman three times in 42 seconds because she refused to sign a speeding ticket.




13 thoughts on “Seattle Loses Control

  1. Max Kennerly

    In a civil case, a counsel’s or insurers duty to their client is typically fulfilled once they have completed the appeal as of right. Petitions for discretionary appeals, like en banc and cert, are another matter entirely. Similarly, I have no doubt that Seattle is indemnifying them entirely for any settlement or verdict.

    If they want to throw a hail mary at a <1% chance, that's their right, but they can do it on their own dime — it'll probably be the only money they pay at all for tasing a pregnant woman for sport.

  2. SHG

    I’m not suggesting that Seattle is required to indemnify, but that Seattle can’t direct Buck not to seek cert.

  3. Max Kennerly

    I agree with that. As everyone who reads this knows, we have a stupid legal fiction such that, when a government agent hurts you in the course of their duties, you can’t sue the government, but instead can only sue the agent personally, even though we all know the government’s the one on the hook.

    Seattle could have stipulated that it was wholly responsible for their conduct and have waived sovereign immunity, making itself the actual party in the case, and thereby assuming control of the case. It didn’t, so the cops were sued personally, and now it’s their defense to control as they feel.

  4. Washington lawyer

    If you read Seattle’s letter, which is linked from the Seattle Times article, you’ll see that Seattle was also a client of Buck’s, not merely the one paying the bills. That creates a very different ethical situation than described.

  5. SHG

    Not exactly. While  the letter asserts the conclusion that the City remains a client “in this case,” the City was dismissed in 2008 while the three heroes remain parties-defendant.  While the City may have been a client (although the conflict appears obvious), it’s now just signing checks and trying to call the shots.

  6. Jesse

    I understand why the city may not have the authority to direct the particulars of the defense, however I don’t see why they do not have the legal ability to simply stop signing the checks.

  7. SHG

    I would think they do, given that they advised Buck in advance that they do not support the cert petition and he can’t rely on their indemnifiction to cover his costs and fees, unless there is some contractual obligation under the police union contract, about which I’m unaware.

  8. Ron Miller

    I think we turn away more good, meritorious cases cases on sovereign immunity than any other type of case. It is just a byzantine law that needs to be changes.

  9. SHG

    But then cities would be at risk of liability. That would completely screw up the whole incentive system.

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