Thursday, July 07, 2016

Brooks v. Clark County (9th Cir. - July 7, 2016)

I'm reading Judge O'Scannlain's otherwise unremarkable opinion this morning -- he says that bailiffs don't have absolute immunity when removing a spectator from the courtroom, but may well (as here) have qualified immunity -- when I come across this sentence:

"Brooks and his two compatriots were intent on taking Reed and Lourcey into custody, apparently at the behest of AIA Surety, a bail bond insurance company, because the ladies had allegedly failed to keep the company apprised of their whereabouts."

That struck me as slightly odd.  On the one hand, it's sort of humorous; low-key, witty.  Didn't say they "skipped bail" or anything.  "Failed to keep the company apprised of their whereabouts" instead.

But there's also that "ladies" part.  That's not the way we usually use that term.  At least in the modern era.  I think most people would say that "the women" (or "these women") had allegedly failed to . . . . "Ladies" seems, at a minimum, archaic.

Now, obviously, I understand that Judge O'Scannlain is nearly 80 years old.  And can write in whatever style he wishes.

But I did wonder whether I'd ever seen other Ninth Circuit judges use the term "ladies" in this same way.  So I went back and checked all of the published Ninth Circuit opinions during the last decade to see whether that same term appeared.  (Ignoring quotes from witnesses, etc.)

And, sure enough, it's definitely a rare occurrence.  But, during the last decade, there is indeed a precedent.  Exactly one.  Only one other time in the last decade has a reported Ninth Circuit opinion used that term in the same way.  The relevant sentence in that opinion being:  "They walked away from it for about a mile, with Mr. Boardman in the rear protecting the ladies with his stick, but the goat would not go away."

The author of that prior opinion?  None other that Judge O'Scannlain.