I'm just fine with soft pedaling the facts a bit when the issue is a legal one. Particularly when you're dealing with a grant of summary judgment, where you have to view the facts in the way that's the most favorable to the non-moving party. So if an opinion paints a particular picture of one of the parties that's a little bit one-sided, generally, I'm totally fine with that.
That said, the facts of today's opinion may still seem just a bit too shaded even for my flexible tastes.
Not that the plaintiff doesn't have a lot of sympathetic facts going for him. He's been totally deaf since birth, doesn't read or speak English well, and isn't very good at reading lips (since he's not too familiar with the English words, so don't necessarily know what they look like). So he relies on American Sign Language (ASL). That's his basic world, especially since "[a]ll of [his] friends are
deaf and [his] ex-wife is deaf."
And when he's arrested and booked and in associated proceedings, he doesn't receive an ASL interpreter, and allegedly suffers harm as a result. That's definitely too bad.
Judge Gould's opinion recites all of these facts, as well as others. An opinion that ultimately reverses (in part) the district court's grant of summary judgment to the state.
Okay. Fair enough.
But, as I said, I have a feeling that what facts are included and what facts are left out may be partly driven by the result Judge Gould reaches. To take but one example: you get lots of details about the plaintiff's life and tribulations, but only a glimmer (if that) into why the plaintiff was arrested during a "disturbance" at his home, and learn only late in the opinion that he had also "been booked at MCDC on five previous
occasions."
Similarly, Judge Gould's reaction to the plaintiff's interactions with the relevant court personnel might also be viewed as potentially one-sided. For example, Judge Gould recounts what he describes as a "series of miscommunications" with his pretrial release officer, but my strong sense is that others did not view these events as "miscommunications" but rather simply plaintiff's refusal to do stuff. Maybe that's why plaintiff himself thought that this officer believed that he "used his
hearing impairment as an excuse to violate conditions of his
pretrial release."
And when Judge Gould notes that the pretrial officer's log entries noted that the plaintiff had "poor reporting during his time with pretrial services, that
[he] used his hearing impairment as the reason for not complying with
the conditions of supervision, and that their interactions were
challenging because [he] “argued” everything," Judge Gould had a definite response to this impression, saying: "The “hearing
impaired, learning impaired, and developmentally disabled individuals
engage in a range of coping mechanisms that can give the false
impression of uncooperative behavior or lack of remorse.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds
by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is
likely that such individuals may have difficulty interacting with
personnel who supervise them. Id. This is one basis that may explain
why the interactions between Sacomano and Updike were challenging." Yeah, maybe. That's surely one possible explanation. Though another -- unmentioned -- one might simply be that Updike was in fact an arse, and was actually challenging in the exact same ways a non-deaf person can be challenging.
Again, all this is fine; it's okay, especially on summary judgment, to have a particular take on the facts, and to highlight those that favor the non-moving party as well as the ultimate dispensation of the opinion.
It's just that, when I was reading this opinion, I got a more palpable sense of that reality than I sometimes get reading other opinions about the same subject matter. So I thought it worth mention.
(None of which, of course, says that Judge Gould's impression is the wrong one. Just that's it's not necessarily the right one either.)
