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.