On February 13, beginning at 9:30, Dennis Cunningham, along with attorney John Scott, will argue the appeal of Fajitagate victims Jade Santoro and Adam Snyder in front of a special session of the Ninth Circuit, at UC Berkeley’s Boalt Hall.

The three judge panel includes Bush appointed co-author of U.S. torture policy, Jay S. Bybee.  Santoro and Snyder prevailed in their state court, civil lawsuit against SFPD officers Alex Fagan, Jr. and Matthew Tonsing for assault and battery in June 2006, after the cops stopped them on the sidewalk and demanded their bag of to-go food, then severely beat them.  (The jury declined to find the third officer, David Lee, liable).  The jury awarded the pair a combined $41,000 in damages.

Before the state court case went to trial, though, federal district Judge Jeffrey S. White dismissed a separate, federal lawsuit against the City and County of San Francisco, alleging that the City, through the Police Department, was also at fault for failing to discipline or terminate violent and unhinged cops, especially Fagan, who had racked up numerous complaints from both citizens and fellow officers and supervisors even before the Fajitagate incident.  Judge White found, however, that since the officers were off duty at the time — returning drunk from a police party — the City could not be held liable.  That issue will be front and center during oral argument.

Among the three, Ninth Circuit judges who will hear this case is U.S. torture policy co-architect Jay S. Bybee.  On February 7, Mr. Cunningham filed a motion to recuse Judge Bybee on the grounds that as a proponent of torture, who also “tortured” the law in order to justify U.S. military policy and immunize torturers, he lacks rational and moral authority to sit impartially in judgment on a case about police brutality and sadism. Not surprisingly, less than 24 hours after the motion to recuse Judge Bybee was filed, he rejected it himself, without elaboration.

(The Senate confirmed Mr. Bybee before his memoranda to former A.G. Alberto Gonzalez purporting to justify a departure from the Geneva Conventions and other covenants against degrading and inhumane treatment were revealed.  German authorities are considering whether to indict Judge Bybee for aiding and abetting torture, in violation of international law, along with his former, fellow government lawyers Yoo — also a Boalt law professor – Gonzalez, Addington, and Haynes).

(The attached motion is a “corrected” version, not the filed version.)

Corr Mo Recuse Bybee 2-8-08

Download (PDF, 33.73KB)


Order Denying Recusal Bybee 2-8-08

Download (PDF, 21.81KB)

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