And now:Ish <[EMAIL PROTECTED]> writes:

Sent by Tom Schlosser via Tribal law
© NLP IP Company, Thursday, July 15, 1999
Counsel Criticized in Case Involving Lincoln
Manhunt
http://www.callaw.com/stories/edt0715d.html
By Paul Elias

         U.S. District Judge Fern Smith may have left the bench two weeks
ago, but that didn't stop her from rebuking San Francisco plaintiffs
attorney Dennis Cunningham in a Wednesday order dismissing most of a civil
rights case filed by the family of Eugene "Bear" Lincoln and others.

Now being handed off to other judges are most of Smith's cases, including
Lincoln v. Tuso, 96-1297, which involves claims against law enforcement
agencies stemming from a manhunt at a Northern California Indian
reservation. But Smith, in her order, said she wanted to resolve the
summary judgment motion in Lincoln before moving to Washington, D.C., to
take over the Federal Judicial Center.

"Although the parties' settlement efforts are commendable, the court must
express its dismay at the lackadaisical manner in which plaintiffs' counsel
has prosecuted this case," Smith wrote. "Moreover, having observed this
dispute since its inception, the court harbors serious reservations about
plaintiffs' counsel's ability to press forward with this litigation in an
efficient and effective manner."

Three years ago, Cunningham sued the Mendocino County Sheriff's Department
and the California Highway Patrol and dozens of officers on behalf of
Eugene "Bear" Lincoln's family and several other Mendocino County Native
Americans.

The plaintiffs accused the cops of roughing them up and trampling all over
their constitutional rights in a frantic search for Lincoln. Lincoln, a
Wailaki Indian, and his friend, Leonard "Acorn' Peters, engaged in a
shoot-out with two Mendocino County Sheriff's deputies on April 14, 1995,
on the Round Valley Indian Reservation. The firefight left Peters and
Deputy George Davis dead and Lincoln on the lam, wanted for murder.

Dozens of cops descended on the reservation and turned over nearly every
stone in search of Lincoln. In doing so, the plaintiffs accused the police
of conducting unconstitutional searches and making wrongful arrests.

On Sept. 23, 1997, a Mendocino County Superior Court jury acquitted
Lincoln, agreeing with his self-defense argument.

On Wednesday, Smith tossed out the claims brought by all but one of the
plaintiffs in Cunningham's civil case, ruling the officers enjoyed
qualified immunity. She allowed Perry Lincoln's claims of an illegal search
and arrest at the hands of the county sheriff's department to go forward.

Everything else, Smith ruled, gets tossed.

Smith's ruling expressed frustration with Cunningham's handling of the
case. She took particular aim at his opposition to the defense motion for
summary judgment.

"Plaintiffs' counsel submitted his opposition but has adduced little or no
new evidence bearing upon defendants' opening arguments," she wrote. "The
opposition is more stream-of-consciousness narrative than a cogent legal
analysis. It is cluttered with conclusory allegations and allegations with
no evidentiary support, and contains little if any discussion of case law."

Neither side had read Smith's order Wednesday and declined to talk about
it. When read the particular passages Smith aimed at him, Cunningham
responded: "What a creepy thing to say."



Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html
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