What Happens Next in Avina v. United States?


Earlier today we showed you the brief submitted to the Ninth Circuit Court of Appeals by the Obama administration for Avina v. United States, the lawsuit spawned by a wrong-door raid in which DEA agents terrified a family of four. In that post, I compared the DOJ's brief to the ruling from the Ninth Circuit. As part of that comparison, I accused the DOJ of white-washing the events that happened on January 20, 2007, when DEA agents conducted their early morning raid on the Avinas' trailer. 

(The Avinas claim that the agents swore at the family's 11- and 14-year-old daughters, yanked one of them off her bed, and put a gun to her head while handcuffing her. The DOJ's brief, meanwhile, says that the DEA agents swore sparingly and only at the parents; and omits the use of a firearm in restraining the 11-year-old.)

My white-washing remark promoted a response from Stephen Nellis, a business journalist in Santa Barbara and a Reason reader. Nellis emailed me after the second post went up with a critique of my claim and a preview of what he thinks will happen next:  

You ask, "If neither of the daughters testified about the officers' profanity, why is it in the Ninth Circuit's Ruling? And why did the Obama administration omit from its own brief that an officer aimed a gun at the 11-year-old's head?"

The reason is procedural. Appeals courts aren't finders of fact and aren't the courts that will decided whether the DEA actually held a gun to a little girl's head.

The Avinas lost on the motion for summary judgment that the US filed, and then the Avinas appealed. Because there has been no legal finding of fact or stipulation to facts by both parties—and indeed the facts are hotly in dispute—the appeals court is required to use the facts submitted by the Avinas to decide whether the issue merits a full trial. From the decision:

"Because this case comes to us on summary judgment in favor of the United States, we must view the record in the light most favorable to the Avinas, who are the non-moving parties. Brown v. City of Los Angeles, 521 F.3d 1238, 1240 (9th Cir. 2008) (per curiam). Many of the key facts that we will recite here are disputed, including the specific nature of the officers' actions toward the minor plaintiffs."

So, to answer the questions you posed more directly: -If neither of the daughters testified about the officers' profanity, why is it in the Ninth Circuit's Ruling?

Because it was submitted as part of the record by the Avinas' attorneys. The parents could have testified something along the lines of "When they went into BS's room, I heard them screaming, 'Get on the fucking ground!'" There are three volumes of case record that aren't available electronically, so I can't check this. But if it's in the 9th Circuit's ruling, that means that the Avinas' side submitted it in their version of the record, whether in testimony or a sworn declaration.

-"And why did the Obama administration omit from its own brief that an officer aimed a gun at the 11-year-old's head?"

We can infer that it's because the Obama administration disputes this fact, just as it disputes whether profanity was used toward the girls.

The administration hasn't yet had a formal chance to dispute the facts in trial with its own evidence. (It goes without saying that the administration had hoped it would not have to—that's why they wanted this to go away at the earliest possible moment with a summary judgement.)

What the 9th Circuit was asked to decide was whether there's a big enough gap between the Avinas' version of the facts and the Obama administration's version of the facts to merit a trial. In the case of the parents, they upheld the lower court's ruling: No matter which set of facts you choose, from the Avinas or from the government, the DEA's conduct was (infuriatingly, in my view) within the applicable law.

But in the case of the children, there's enough discrepancy between the two sides that it should go to trial and be sorted once and for all. What the 9th Circuit is really saying here is "We don't know what happened here, but if true, the Avina facts, which we are obligated to consider as true, would be outside of the law. We believe there should be a trial to find out what really happened." The message is that holding a gun against an 11-year-old's head would not be OK, if that is indeed what happened.

While I really appreciate Reason reporting on this case—to my knowledge, it's the only national media that has yet done so—I don't know that it's entirely fair journalism to accuse the Obama lawyers of white washing the facts. There's a dispute about the facts, and the Obama administration gave its side. The appeals court decided that the discrepancy is big enough that it needs a trial. To call the Obama administration's answer a white wash is to accept the Avinas facts without a trial. In any case, thanks for putting this one on the radar. The truth will come out at trial.

While I included the Ninth Circuit's disclaimer in my first post, I'll concede to Nellis his point about white-washing. I wrote it because I believe the Avinas' narrative. After all, it was just last month that federal agents took a 12-year-old girl out of her bed and a 2-year-old out of his crib while conducting a raid and marched the oldest one around her parents' house at gunpoint. 

But there's another reason to weigh the Avinas' claim more heavily. The Ninth Circuit doesn't do fact-finding, yet the Obama administration's brief is full of fact claims. The brief says that the officers did not use profanity with the little girls, and that the officers "assisted" the youngest one out of her bed. Which is to say, it rebuts the Avinas' narrative room by room, restrained family member by family member. Except for one important moment: The Obama administration's brief makes zero mention of whether an officer aimed a gun at the youngest daugher's head while another agent cuffed her. It doesn't elaborate on the claim, veryify it, or deny it. So, perhaps the question I should have asked above is, Why did the administration clarify/rebut every moment of the Avinas' narrative except the most heinous allegation

Nellis offers an answer for this: "It goes without saying that the administration had hoped it would not have to—that's why they wanted this to go away at the earliest possible moment with a summary judgement."

If that's the case, I don't blame them. It's election season, and we're talking about putting two teenage girls on the stand to talk about how federal agents in paramilitary gear swore at them, handcuffed them, and pointed guns in their faces when they were children.  

As Nellis says, the truth will out at trial, assuming the case goes to trial: The Obama administration has 45 days from the date of the Ninth Circuit's ruling to determine if it'll continue defending the case. 

NEXT: Ron Paul: This is Why We Fight

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  1. If Obama were to apologize to these people, he *might* be worthy of some respect.

    1. *apologize on behalf of the DEA under his administration, that is.

      1. And demote a couple of assholes in the chain of command. Heck, if we’re dreaming maybe he’d even accept a couple of resignations.

        1. Let’s not go overboard… we’re talking about Barry, here.

          1. Hey, I said “we’re dreaming” and “accept resignations” – it isn’t like I said he’d fire them.

            1. Just being the voice of caution here.

  2. If I recall correctly, where I live, pointing a gun at someone without justification is assault with a deadly weapon, which is a felony. What I’d love to see – and what would happen if someone, somewhere, had a hair on his nuts – would be that state authorities would arrest whomever it was that pointed that gun at that child and charge that individual with whatever the appropriate charge is in California.

    1. Lon Horiuchi never served time for shooting that baby lo these many years ago… why should this administration chastise the DEA for this minor flub?


    2. According to dunphy were too obsessed with arrests.

    3. pointing a gun at someone without justification is assault with a deadly weapon, which is a felony

      Unless you are a law enforcement officer. Then it’s something to brag about.
      “You should have seen it! She pissed her pants! It was fucking great! Little bitch had to sit in her own piss for two hours before they told us to untie her! But fuck! I scared her so bad she pissed her pants! I fucking love this job!”

      1. I imagined a shaven-headed, oakley wearing monkey enthusing that and punched a hole in my wall.

        1. “monkey”


          1. white-washing


            1. “Racist?”


              1. Of course. “A = A.”

                1. But… but… Merriam-Websters says that “racist” means…

  3. But the child may be Saint Alia of the Knife!
    All children must have guns pointed at their heads at all times!
    They’re fucking DANGEROUS!

  4. Nellis’ point makes no sense. When the DOJ made its summary judgment motion, it was required to assume that the Avinas’ version of the facts was true. In effect, the DOJ was supposed to be arguing, “even if the Avinas’ version of what happened is 100% true, they should lose, because the law provides them with no relief.” If the DOJ based its motion on its own version of the facts instead of the Avenas version, the DOJ guaranteed it would lose its motion.

    If the DOJ wasn’t whitewashing the facts, it made a major tactical error in its motion papers by presenting the facts the way it did.

  5. It’s election season, and we’re talking about putting two teenage girls on the stand to talk about how federal agents in paramilitary gear swore at them, handcuffed them, and pointed guns in their faces when they were children

    True, the progressive side of the media will want to cover this. Wait, no, it makes Obama look bad. Well, surely the conservative side of the media will want to make Obama look bad… oh wait, they like the whole jackboot thing, especially as applied to people with ethnic names.

    I strongly suspect you won’t be hearing much about this case outside of libertarian publications.

  6. OK wow that makes a lot of sense dude, Wow.


  7. My white-washing remark promoted a response from Stephen Nellis


    And you’re totally wrong about Mitt Romney

    1. We were all wrong about Giant Douche

      1. Wait… is Romney Giant Douche, or Shit Sandwich?

        1. I think we need The Derider in here to point out the distinction.

          1. He does have experience being both.

  8. Smells like white-washing to me.

    We’re talking about Obama, here. No way he’d not instruct someone to try to sweep this under the rug… apparently, he can’t use this as a campaign issue, so it’s “tough shit, Avina family, you drew the short straw”.

    Cue Tony or shrike in 3…2…

  9. OT:
    Tesla is supposedly shipping the new sedan this week; absent the subsidies (are you reading JP?), it retails for $57,400 and ranges up to $105,400 (that’s a hell of a lot to pay for leather seats).
    The EPA is claiming a ‘greater than 300m range'( http://www.plugincars.com/tesl…..21253.html ), which I presume is so loaded with conditions that it really might get you from Sunnyvale to SF and back, maybe. Assuming no traffic jams and turn off the damn AC!
    $57K buys a nice Benz or BMW, with an honest 300m tank range and a ‘recharge time’ of, oh, ten minutes, presuming you hit the can at the same time.
    It’d be nice to e cheering for a guy who’s trying to use private funds for space endeavors, but this makes it tough.
    In a quick check, I can’t find any source that states a resale value for the Roadster; have none of them sold on the used market?

    1. Will they again be fined by the EPA for producing an all-electric car, or did they pay the appropriate tribute up-front this time?

      Blast from the past!


      1. Dunno, but calling it a ‘zero-emissions’ car is bullshit; the emissions happen where the juice it generated.
        If the EPA were honest (ha!) they would require the certs for the emissions.

        1. I had to post that… I’m still laughing about how the liberals actually defended the EPA’s fining of Tesla.

          1. And I’m sure the subsidies.

            1. Oh, yeah… definitely.

    2. Oops; ebay:
      Bids are (seemingly) all over the place, but I see no sales completed.
      (no linky: “Your comment contains a word that is too long (50 characters)”)

        1. Truly the duPont Registry will be the clearing house for the affordable cars pf the future, such as the Tesla Roadster.

          1. Only $100K for a two-year-old electric car made from a hollowed-out Lotus. Such a deal.

  10. To call the Obama administration’s answer a white wash is to accept the Avinas facts without a trial.

    Well, yeah … Why would any sensible person believe the state’s version of events when it conflicts with the account of a random person who has been indisputably wronged by the state?

    The state and its agents are proven liars. They lie in matters great and small. A random person may or may not be lying, but the undisputed fact is that the state wronged Avina with a “wrong-address” invasion of their house.

  11. Nellis is right that this is summary judgment motion and about the standard. But summary judgment motions are always made (at least by competent counsel) AFTER depositions are taken. So the daughters should have been deposed and testified about the profanity. If they didn’t (and there’s no other evidence in this regard), then there’s no evidence in the record to view in the light most favorable to the plaintiffs.

  12. What happens next?

    Goes to trial. The district court judge, whose feewings have been hurt by being overturned, feels like he has to redeem himself by making damn sure the proles lose just like he said they should.

    The cops lie. The judge aids and abets the cops however he can. The Avinas lose.

  13. What’s the big deal? It’s not like somebody published a photo of the Dear Leader’s little girls.

  14. Both Riggs and Nellis get the law wrong in this case.

    The Ninth Circuit was not “asked to decide was whether there’s a big enough gap between the Avinas’ version of the facts and the Obama administration’s version of the facts to merit a trial.”

    The factual dispute between the Avinas and the U.S. has very little to do with this case ? yet. The real question was “whether the actions of the agents were excessive in light of the ages of [the minor children] and the limited threat they posed.” Both the U.S. and the district court said that, as a matter of law, it was not “objectively unreasonable” nor “extreme and outrageous” for the agents to point their weapons at the minor children’s heads, keep them handcuffed laying on the floor for at least thirty minutes, and yell at them “[g]et down on the f[uck]ing ground.” The Ninth Circuit, correctly applying the appropriate case law, disagreed.

    Whether or not the alleged actions of the DEA agents were objectively unreasonable or extreme and outrageous is a material fact yet to be determined. The controlling case is Tekle v. United States, 511 F.3d 839, 855 (9th Circuit, 2007). The U.S. simply tried to bypass this determination and have the same standards that govern the use of force against adults apply towards minor children.

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