is written mostly by an assistant Tacoma city attorney and a judge
from the 9th U.S. Circuit Court of Appeals.
That’s the best way to demonstrate how badly the city lost an
appeal of a civil rights lawsuit that has already cost taxpayers
$138,000 and could cost them much more.
The case, Frunz v. City of Tacoma, arose out of a 2000 incident
in which police officers, on a second visit to a house, broke in
unannounced and held a woman at gunpoint.
Officers thought she was the ex-wife of the owner and suspected
her of breaking in. In fact, she had recently received the house in
issue now is less what the cops did than what the city attorney did
– appeal a bad case that threatens civil liberties. Seconds into her
argument before the appellate court, assistant city attorney Jean
Homan was in trouble.
Homan: “Your honors, this case arises from the type of
bread-and-butter incident to which law enforcement officers across
this country are dispatched hundreds of times every day – every day,
every shift …”
Judge Alex Kozinski: “You know, I’ve seen a lot of cases but I’ve
never seen a case where someone calls to say, ‘Hey, the guy’s wife
is in the house.’ Next thing that happens they come in with guns and
they put her in handcuffs without a warrant.”
Homan: “But your honor, there’s a lot that happened …”
Kozinski: “(unintelligible) a lot of years and this may be bread
and butter in Tacoma but I’ve never seen it anywhere else.”
Homan tried to argue that the search was protected because it was
needed to protect life and prevent injury. She did not get far.
Kozinski: “The very fact that they go up to the house and knock
on the door the first time is all the proof necessary to infer that
they didn’t think this was an emergency situation, that this was a
truly dangerous person inside. Why couldn’t they get a warrant? Have
they heard of a warrant in Tacoma? Do they have warrants?”
Homan: “They most certainly have warrants …”
Kozinski: “Then why didn’t they go get a warrant?”
Homan: “Because if you are
responding to a burglary in progress, that is exactly the kind of
exigent circumstance …”
Kozinski: “If it’s a stranger! But this neighbor said, ‘I know
who it is,’ so if the person leaves they can identify them …”
Later, Kozinski again.
Kozinski: “Explain to me at that point why they could not have
gone to get a warrant. Just explain to me that by itself.”
Homan: “Because of the potential burglary in progress. You have
the potential for the suspect to escape, the destruction of
Kozinski: “What did you think? Was there some danger that she’d
go in and cook a meal or something, that she would ruffle the
Homan: “Your honor, she didn’t live at that house.”
Kozinski: “But as a matter of fact, she did live at that
Homan: “For a couple of days.”
Kozinski: “But she did live at that house.”
Kozinski, who wrote the opinion, ended with this lecture: “You
know, you had a trial before a jury and I can sort of see taking the
case to trial, but enough’s enough, you know. This is why we have a
jury system. I don’t think you or your co-counsel would have liked
if something like that had happened in your house on the say-so of
someone who lives across the street. I don’t think any of us
“You had a jury and to me it sounded like the jury gave your
clients a hug and kiss for what they did. Boy was this a
parsimonious jury. You should have thanked them.”
Homan then thanked the judges and sat down.
The city has two weeks to show why it shouldn’t pay double the
court costs and attorneys fees as a penalty for bringing a frivolous
- This is audio of the oral arguments in Franz v. City of Tacoma,
argued in Seattle on October 25. Assistant City Attorney Jean Homan
is arguing for Tacoma. The judge who does most of the questioning is
Judge Alex Kozinski, also wrote the written opinion in the case.