Hunt & Associates P.C.

A Problem of Consent: Why Can’t an Attorney be Held to Their Word? Why Can’t an Attorney Consent to Arrest?

The common law had a rule that you couldn’t complain about an injury you invited by consent. That rule, summarized in the Latin maxim “volenti non fit injuria” roughly translated as, “there’s no injury to a willing person”. Hence, when two boxers meet in the ring and fight, neither is charged with crimes of assault or battery nor can either fighter claim damages for personal injuries against their opponent because they consented to the obvious risks of the fight.

A recent Ninth Circuit case noted in the ABA Journal, Demuth v. County of Los Angeles, shows how far our legal system has drifted from the common sense of that common law rule. In this case a public defender, Demuth, had a scheduled hearing for one of her clients before a court referee. When the referee was ready to hear Demuth’s case, the referee tried to reach her; first by paging her, then by calling her, and, finally, by sending a deputy sheriff to Demuth’s office to summon her to the courtroom. Instead of responding cooperatively to the court’s summons, Demuth, at first repeatedly declined while the deputy became more insistent that she come to the courtroom as requested. Finally Demuth answered the deputy’s demand with the challenge that “[i]f you want me to come right now, you’ll have to arrest me”.

The deputy accepted Demuth’s challenge. He arrested her, put her in handcuffs and escorted her to the referee’s courtroom where, about 11 minutes after the arrest, he took off the handcuffs. Demuth, of course, brought a claim for damages under 42 U.S.C.§1983 against the deputy and the County of Los Angeles.

The Ninth Circuit reversed the district court’s dismissal of the claim on the basis of qualified immunity and sent the case back to the district court where Demuth seeks $40,000.00 in damages though her attorney estimates the total attorney fees and court costs incurred by all parties in the case could total one million dollars.

In its opinion the appellate court asserts, without citing any authority, that “Demuth certainly could not authorize her own arrest . . . .” But why couldn’t Demuth authorize her own arrest if she was otherwise competent? There’s no indication in the opinion that during the 11 minutes of her “arrest” Demuth ever rescinded or countermanded her initial invitation to arrest her. Is it patently unreasonable to take an attorney literally at their word in such a situation as the Ninth Circuit suggests?

More than others, attorneys should know and respect the import of their words. This does seem to be a case where Demuth got what she asked for and her injuries, if any, were invited and negligible. Why wouldn’t a court say that Demuth did not suffer any injury because she consented to her arrest and escort to the referee’s court?

The Ninth Circuit’s opinion says that her invitation to arrest her was “obviously” sarcastic and not intended to be taken literally. That conclusion requires a deputy sheriff to know that an apparently intelligent and competent attorney does not really mean what she says. Why shouldn’t the attorney bear responsibility for making sure that she says what she really means; particularly when refusing to respond to a court’s request?

© 8/19/2015 Lawrence B. Hunt of Hunt & Associates, P.C.  All rights reserved.


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