Today's Ninth Circuit opinion got me thinking a little bit about when appellate courts elect to call events "tragic" (or not).
This is surely a tragic case. A high profile one, as well. Kathryn Steinle gets randomly shot and killed on a San Francisco pier when a gun held by an unauthorized immigrant discharges. (Whether or not he deliberately killed her is unclear.) Random deaths like that certainly qualify as tragic. As do many deaths. Rarely is the cessation of life of an innocent person cause for celebration.
So it's perhaps no surprise that the first sentence of Judge Bennett's opinion labels the events as "undeniably tragic."
But I started to wonder what sort of opinions decide to label the events as "tragic" as opposed to simply setting forth the facts?
Does the fact that it's a high-profile case matter? This one definitely got a lot of press, and became a large part of an ongoing debate about the benefits and liabilities of unauthorized immigration. Is that why this particular case gets labelled "tragic" -- because it particularly touched the heart of those on one side of the debate or another? Or do we disproportionately label events "tragic" when we think a large number of people (e.g., nonlawyers) might be reading the opinion?
There are, after all, a ton of deaths recounted in Ninth Circuit (and other appellate) opinions. Most of which could probably be quite accurately described as tragic. Why do some get the appellation and others do not?
Does the result matter as well? Here, the Ninth Circuit decides that San Francisco isn't liable for the death (which seems to me exactly right), and hence affirms the district court's dismissal of the plaintiff's lawsuit. Are judges more likely to describe an event as "tragic" if they then go on to deny relief to the party with whom they expressly proclaim sympathy?
Those are hypotheses, anyway. I'm not sure how I'd definitively verify or disprove them. I did check to see how often the Ninth Circuit, in particular, describes events as "tragic." Not surprisingly (to me, anyway), it happens much more in published opinions than in unpublished opinions. Since January 1, 2000, that word is in 167 published opinions, as opposed to only 64 unreported ones. That also means that we're using that term around once a month. In 2019, the Ninth Circuit has used that word to describe school shootings, a car accident, a prison suicide, a landslide, and a wrongful conviction and imprisonment. I'd have thought the label was most likely to be applied to random murders. But it seems the term is used much more broadly. (Accurately so.)
I'm sure there are other terms that are similarly employed. Dreadful, appalling, awful, etc. But my money's on "tragic" being the most common.
Because lots of cases on appeal do indeed involve tragic events.
And a fraction of them are expressly described as such.
