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Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"

I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.

DON'T TASE ME BRO: Brooks and Mattos

In two related opinions issued by the Ninth Circut Court of Appeal sitting en banc in Mattos v. Agarano et al. and Brooks v. Seattle, et al. 08-15567 the Court found the use of a taser, in two specific factual circumstances, unconstitutional. In Mattos the plaintiff, a vicitim of domestic violence, was in the middle of a dispute between her husband and four police officers when one of the officers gave her two jolts from his Taser set in dart mode. In Brooks, the plaintiff was seven-months pregnant and driving her son to school when she was stopped by police, ticketed for driving 12 miles over the 20-mph speed limit and then shot with a stun gun three times after refusing to sign the citation.

While the Court found the particular use of force unconstitutional it also held the defendant officers weren't liable in the civil suits filed against them because the law governing Taser use wasn't clearly established at the time of their arrests in 2006 and 2004 respectively.

4 of the 11 judges dissented, including Chief Judge Alex Kozinski, who stated that Tasers were still a safer alternative to more dangerous means of subduing arrestees.

If you or someone you know has been a victim of excessive force please don't hesitate to contact the attorneys of KMB.

Categories: Civil Rights

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Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, and Bednarski, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane & Bednarski, Click Here.

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