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An Example of a Frivolous Appeal

At Crime and Federalism, Mike Cernovich gives us a textbook example of a frivolous appeal, courtesy of  Judge Alex Kozinski of the 9th Circuit. In Frunz v. City of Tacoma, the City of Tacoma appealed a verdict awarding $100,000 to Susan Frunz after Tacoma police broke into her house without a warrant, pointed a gun at Frunz and then slammed her and her guests to the floor and cuffed their hands behind their backs until Frunz could prove that she owned the home. Kozinski wrote:

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.

Mike Cernovich comments that city defendants are the "frequent flyers" of verdicts in civil rights actions, in part because rulings like Kozinski's are rare: Cernovich can't recall  a case where an appellant was assessed double costs for filing a civil appeal. And because appeals are so common, lawyers who serve municipalities are under pressure to file appeals to keep the client or avoid censure by the bar. Cernovich argues that given the present legal system, lawyers shouldn't be censured for frivolous filings until the bar stops censuring lawyers for failing to carry out their clients' wishes. In this case, however, I can't imagine that any grievance committee would have blamed a lawyer for withdrawing from a case rather than filing an appeal that stood no chance of winning.

Posted by Carolyn Elefant on November 15, 2006 at 03:01 PM | Permalink | Comments (4)


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