Miller v. City of Los Angeles

(1) Where conduct was not violative, a defendant-counsel's mistaken concession or apology for a violation does not create a basis for sanctions. (2) Counsel does not violate an in limine order precluding statements that a decedent was armed, when counsel argues that an officer reasonably believed a decedent was dangerous because the decedent had just shot someone.

Defendant, City of Los Angeles (“City”), appeals sanctions imposed by the district court for a statement in violation of an order in limine during the original trial. That trial ended in a hung jury. After the City prevailed at retrial, plaintiff, Georgia Miller, was awarded sanctions to cover fees and costs on the basis that City’s violative statement caused the non-verdict. The Ninth Circuit found that the order precluding statements that decedent was armed was not so specific as to encompass City’s statement that the officer reasonably believed decedent was dangerous because decedent had just shot someone. As such, where the conduct at issue was not violative, the City’s mistaken apology and concession did not create a basis for sanctions. The Court went on to note that the district court had not found that City’s statement caused the jury to hang, as required where sanctions are intended as compensatory, nor had the court offered City protections of the criminal process as required to award extraordinary, in this case $63,687.50, in non-compensatory sanctions intended to vindicate the court’s authority and deter future misconduct. The court admonished both lawyers and judges, stating, respectively, “don’t apologize until you’re sure you did something wrong,” and “don’t accept too readily lawyers’ confessions of error… that’s why we have transcripts.” REVERSED and REMANDED