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.