The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Ninth Circuit Appoints Berkeley Law Dean Erwin Chemerinsky to Defend a Police Officer's Excessive Force Conviction …
... and also allows victim's attorney Caree Harper and me to defend the conviction.
I've previously blogged about the Justice Department's effort to vacate a LA County sheriff's deputy's federal civil rights conviction for using excessive force. After District Judge Wilson of the Central District of California rejected that effort to vacate, both the officer and the Justice Department appealed. And yesterday, the Ninth Circuit appointed UC Berkeley Law Dean Erwin Chemerinsky to defend the judgment below—while also allowing me and co-counsel Caree Harper to file an amicus brief on behalf of the victim supporting the judgment below. The Ninth Circuit's order sets up judicial review of the important issue of whether federal prosecutors have unconstrained power to dismiss federal charges at any time for any reason.
I've previously described the facts of the case, involving a police officer's take-down of bystander, J.H. When she began recording the officer making an arrest on her phone, the officer responded by slamming her to the ground and pepper spraying her. You can see for yourself: the relevant events were captured on video. The Justice Department filed a civil rights charge against the officer and, following a jury trial in February, he was convicted. But later Judge Wilson rejected the Department's request for a probationary sentence as too lenient. Instead, he imposed a four-month prison sentence, in light of the officer's clear betrayal of the public trust. Unhappy with that sentence, the Department then moved to dismiss the entire case under Fed. R. Crim. P. 48(a). On behalf of J.H., Ms. Harper and I objected. And Judge Wilson agreed with our position, denying the the motion to dismiss:
The motion is a direct attempt to override the Court's decision to sentence Defendant to four months in prison. Indeed, after the Court rejected its request for probation and imposed a custodial sentence, the Government responded by seeking to dismiss all charges—ensuring Defendant serves no time at all. Put simply, the Government disagrees with the Court's sentencing decision and is using Rule 48(a) to erase it. It has even acknowledged that this is its reason for seeking dismissal.
Both the Justice Department and the officer (Trevor Kirk) appealed to the Ninth Circuit, challenging the Judge Wilson's refusal to allow the Department to dismiss the case. Because of the unusual procedural posture with both the appellant and appellee on the same side, no party was defending the judgment below. Ms. Harper and I moved to be appointed as an amicus to defend the judgment below. And yesterday, the Ninth Circuit granted our motion in part.
Relying on the case cited in our brief, United States v. Arpaio, 887 F.3d 979, 982 (9th Cir. 2018), the Circuit noted that an appellate court has "inherent authority to appoint disinterested counsel to represent the position taken by the United States below when the United States refuses to defend its prior position." But rather than appointing us, the Ninth Circuit appointed Erwin Chemerinsky—a well-known constitutional law scholar and Dean of Berkeley Law—to defend the judgment below as the specific Court-appointed amicus.
Presumably the Circuit was concerned that we were not "disinterested" in the judgment below. We represent the victim, who supported a prison sentence for the officer. So, at the same time as it appointed Dean Chemerinsky, the Ninth Circuit also "granted in part" our motion to be appointed amicus curiae to defend the judgment below. The Circuit allowed us to also file an appropriate amicus brief defending the judgment and sentence.
The Ninth Circuit set up a briefing schedule, under which the opening briefs by the Justice Department and Kirk—challenging the final judgment and post-judgment refusal to dismiss—are due on November 5, 2025. The answering brief by amicus curiae Dean Chemerinsky—defending the judgment and order—is due December 5, 2025. My amicus brief for crime victim J.H. is due seven days later. And then Kirk and the Government can reply.
This briefing will address the important question of whether the Government can properly move to dismiss a criminal case—even after the trial judge has imposed a prison sentence. In the district court, the Government advanced the breathtakingly sweeping claim that the public interest is "what the government says is the public interest in this courtroom." Judge Wilson responded: "The Government is wrong—at this stage, it does not have unbounded discretion to dismiss cases. The history of Rule 48(a) makes that clear." Judge Wilson then recounted that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a "leave of court" requirement was imposed for any prosecutor motion to dismiss charges specifically to ensure that the public interest—as determined by a judge—is protected.
Under the Ninth Circuit's order, Dean Chemerinsky as well as Ms. Harper and I will file briefs defending Judge Wilson's decision in December. The issues are important. If the Justice Department prevails, it will have the power to dismiss not only the charge in this case but more broadly any criminal charge whenever it disagrees with the trial judge's sentence. That would dramatically shift sentencing power away from the Judicial Branch to the Executive. I look forward to joining Dean Chemerinsky and explaining why, in cases like this one, judges have an appropriate role to play in reviewing motions to dismiss and ensuring that the public interest is protected.
