A SCOTUS Short-Lister Seemingly Has No Problem With Police Tasing. Does That Matter?

The law, lawyers, and the court.
Sept. 18 2013 6:30 PM

Tase Thy Neighbor?

Will a single dissenting opinion end Judge Jacqueline Nguyen’s Supreme Court aspirations?

Judge Jacqueline Nguyen, United States Court of Appeals for the Ninth Circuit.
Judge Jacqueline Nguyen

Courtesy of United States Court of Appeals for the 9th Circuit/Wikimedia Commons

Given the current trend toward nominating Supreme Court justices young enough to serve on the court for several decades (the last four appointees have been in their early to mid-50s), some federal judges find their way onto the Supreme Court short list the moment they are appointed to the federal appellate bench. One such frequently mentioned fast-track candidate is Judge Jacqueline Nguyen, appointed by President Obama to the 9th Circuit Court of Appeals last year. Nguyen is the first Vietnamese-American and the first Asian-American woman to serve on a federal appeals court. Prominent legal observers Jeff Toobin and Tom Goldstein have already speculated about her Supreme Court potential.

But the rapid rise of midcareer jurists introduces potential pitfalls: Their few years at the courts of appeals can be subject to closer scrutiny than judges with longer records. Just one symbolic opinion that angers the base can be more costly, raising questions about whether the jurist is someone the president—and the political forces he needs to rally behind his nominees—can “trust.” In her 2007 book Supreme Conflict, CBS’s Jan Crawford Greenburg discusses the thinking inside the Bush White House during the lead-up to the nominations of then-Judges John Roberts and Samuel Alito to the Supreme Court. Greenburg reports that, in White House lawyers’ reviews of potential candidates’ jurisprudence, “with some [candidates], it took one bad opinion to knock them out.” In Greenburg’s telling, analyzed here by Balkinization, one judge who was scratched in this manner was the highly-touted short-lister Michael W. McConnell, formerly of the 10th Circuit.

Now consider Judge Nguyen’s opinion in the recent case of Donald Blondin, who found himself on the wrong end of a nasty police tasing simply for inquiring about the well being of his neighbor.

One evening in May 2008, the police were called to Blondin’s neighborhood in western Washington State to investigate a possible suicide attempt by an elderly man in his car, which was parked next to his house. The police coaxed the man out of his car and then, when he refused to comply with commands he show his hands, they tased him. They tased him again while he was lying on the ground. His neighbor Donald and Donald's wife Kristi heard the commotion and came outside. Donald was in a T-shirt, shorts, and slippers. He called out, "What are you doing to Jack?" Though he was more than 35 feet away, one officer ordered him to get back while another ordered him to stop. Perhaps confused by the contradictory commands, Donald either took a step or two back and stopped or simply stopped. He was (according to a witness) “frozen with fear” and made no threatening movements.

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An officer warned Donald that he would be tased if he did not retreat further, but before he had even finished giving the warning, he tased Donald anyway. The officer deployed the Taser in “dart” mode, which means the Taser “propel[s] a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the [Taser] by insulated wires—toward the target at a rate of over 160 feet per second." At that point the dart delivered a 1,200-volt charge that “knock[ed] [Donald] down and caus[ed] excruciating pain, paralysis, and loss of muscle control.” The firing officer then threatened Kristi with the Taser too, and for good measure ordered Donald handcuffed and arrested for obstruction. Predictably, the charges were later dropped. Donald and Kristi filed a civil rights suit for damages, and earlier this month, the 9th Circuit held that the claim could go forward.

But Judge Nguyen disagreed in a lengthy dissent, arguing that the tasing was reasonable because Donald “interjected himself into a rapidly-evolving, highly volatile scene.” Nguyen found the scene so “volatile” in part because the officers had been warned that Jack—the man attempting suicide—might be armed, even though there was no link between Donald and any weapon, and even though by the time Donald had arrived on the scene, Jack was on the ground, having been tased twice himself.

What to make of Judge Nguyen’s siding with an arguably trigger-happy officer who treated neighborly concern as an act of aggression warranting the use of substantial force? Her dissent has already received some general news coverage as well as some not-exactly-flattering attention in the blogosphere. In her year’s worth of federal appellate decisions, though, Judge Nguyen’s dissent appears to be an outlier in terms of its potential to raise liberal hackles. Since joining the 9th Circuit, Judge Nguyen has voted to uphold a city program to punish irresponsible landlords, to require a new sentence for a juvenile offender who received 254 years for a non-homicide offense, and to reinstate a false arrest claim against law enforcement.

But there’s something about a judge’s lone dissent that reveals more than you might glean from the act of joining other judges’ opinions. And as opinions go, this one is pretty blunt. According to Nguyen, in permitting Donald's claim to proceed, the majority “goes badly astray” by “attempting to minimize the precariousness of the situation” and “discounting the danger” to the officers of a concerned but unarmed and motionless man more than 35 feet away. Donald “was not simply a passive bystander” according to Judge Nguyen because “he came out of his house in slippers, demanding to know what the officers were ‘doing to Jack.’ ” (Judge Nguyen does not explain why the officers should reasonably have felt threatened by either Donald’s slippers, or his question.)

Happily for Judge Nguyen, there is some recent precedent for a former prosecutor to reach the high court despite a pro-law enforcement opinion at the court of appeals. As a judge on the court of appeals, Sonia Sotomayor once vacated a jury award in favor of a stranded truck driver who sued the police for false arrest and malicious prosecution after he got into a heated dispute with a pay-phone user (it was the ’90s). The driver wanted to use the phone because his truck had broken down and created a hazard; the pay-phone user responded by pulling a gun, and the driver ended up throwing the phone at him. The police arrested the trucker, not the gun-wielding pay-phone user (himself an off-duty cop). The trucker sued and the jury awarded him damages for his arrest, which had cost him his job along with tens of thousands of dollars in legal fees. Then-Judge Sotomayor wrote the opinion overturning the verdict, reasoning that once the trucker threw the phone, he had committed assault and could be arrested. The case did not prevent her nomination to the Supreme Court. In fact, as Emily Bazelon has suggested, the decision may have helped her by demonstrating her ability to arrive at conservative outcomes. Along similar lines, perhaps Judge Nguyen’s dissent here would be a political asset, reassuring conservatives that she isn’t reflectively anti-cop.

There are, however, a couple of differences. First, Justice Sotomayor had well over a decade to build up a track record on the court of appeals. Currently there are four Supreme Court justices who may be approaching retirement age. If Judge Nguyen is on the Obama short list, this dissent will have little time to blend into a larger body of jurisprudence. And second, the Sotomayor opinion demonstrated her ability to reach across the aisle, judicially speaking; here, by contrast, Judge Nguyen was dissenting from a majority opinion that included one Clinton appointee and one appointee of the second President Bush, so it was the majority, not the dissent, that appears judicially “bipartisan.”

Ultimately, although there is no indication Judge Nguyen had politics in mind when she penned this Taser dissent, whether the case makes a difference to Judge Nguyen’s prospects will depend on the reactions and judgments of a small group of political actors, and whether one opinion can matter as much to the current administration as it did under Bush. Will Obama White House lawyers view Judge Nguyen’s dissent as indicative of even-handedness to law enforcement and therefore consider her a safer political pick than others on the short list? Or will the President’s advisors question whether Judge Nguyen satisfies his empathy test, insofar as this dissent seems to find slippers more threatening than Tasers?

Scott Michelman is an appellate litigator in Washington, D.C.