Suicide baiting case gets 10 minutes in court
Even though we had worked five years to hear “All Rise!” we almost missed it, but not because we were late.
We were early. In fact, had we not arrived early for Oral Arguments in the First District Court of Appeal, San Francisco, we would have not only missed the bailiff’s imperative, but also the opportunity to observe the three justices’ dispensation of the five cases before ours.
Once inside the court room (spelled that way above the door), used for both the 1DCA and the California Supreme Court, we barely had time to take in the details. A soaring skylight and coffered ceiling rise gently above rich oak paneling and a giant California landscape mural to form the backdrop for the most dominant feature, “the bench,” where the justices sit.
Their seats, elevated above all others, are separated by “the bar,” a railing that divides the judicial area from a semi-circle surround of seats for waiting counsels, press, and guests. The area in between the bench and the gallery is called “the well,” where attorneys argue. The visual symbolism is plain: Only an attorney can speak for me.
Even as I made a quick sketch of this, I knew the details of the courtroom in the Earl Warren building at 350 McAllister were already indelibly etched in my mind.
When the bailiff issued his order and everyone rose in shuffled unison, I thought my knees might buckle. The sound of this collective movement in unison had flashed before me as the sound the pigeons’ feathery wings had made rising in startled terror the nanosecond after my son’s falling body had crashed.
Flashbacks always divide my attention. I tried to focus.
Legal scholars often call the Court of Appeal the “Court of Error” because its job is to address the potential errors of the lower court. Pondering all the possible combinations in the outcome of Kathy Yount et al. v. City and County of San Francisco et al. on the morning of Aug. 20, 2015, left me dizzy.
I would have no way of knowing the decision for Yount v. CCSF would come just eight days later, even though I had read that justices usually have their minds made up before these formal arguments.
That morning, though, I reflected that we had been aiming directly — and definitely lugubriously — toward this higher court all along. We have struggled to get here to redress the injustice of being dismissed from a jury trial in Superior Court regarding the death of my only child Dylan Yount in San Francisco on Feb. 16, 2010.
Our contention is and has always been that 24 San Francisco police officers caused my son’s death and should have prevented his suicide “in the context” of what was happening to him.
“In the context of what was happening to him means suicide baiting, a psychological term the courts do not recognize yet. It means the malicious encouragement of suicide when an irrational victim who is already threatening suicide death is provoked until he follows through at a mob’s behest. Rather than stopping the suicide baiting, the San Francisco police chose to become part of the chorus of cruelty emanating from below him.
I reflected for the zillionth time that winning this case will not bring Dylan back, while at the same time acknowledging how hard we have worked to get here. I do not want suicide baiting to happen to anyone else. Even so, I look at this court with a jaundiced eye.
Just two days prior to this courtroom appearance, for instance, the court reduced our speaking time from 30 minutes to just 10 (CA Rules of Court 8.256, c #2). For the uninitiated, anticipating such capricious contingencies is next to impossible, for there is not time enough to attend law school before one initiates a lawsuit.
I think back ruefully, remembering how my first lawyer had screamed at me that he did not have time to teach me “the law.” This also made me think of the old adage, “Ignorance of the law is no excuse,” and I cannot help wondering again how it is defensible that at least one of the 24 SFPD officers had not known the law he was presumably paid to enforce.
I cannot imagine the frustration attorneys must feel working in these willy-nilly circumstances either, since I can also barely reconcile how our case has become more “streamlined” the farther we go along.
Take the time element, for example. The medical examiner’s report (and much anecdotal observation) says that Dylan had left the ledge and gone back inside his loft apartment at least one time. As evidence, the M.E. offers multiple footprint marks Dylan left inside on the sill of the window.
Even so, the time frame of this case is now based on the time the filmmaker began recording, which was after Dylan stayed outside. To me, whittling the time down to 15 minutes rather than the actual hour deliberately minimizes the multiple opportunities the SFPD had to prevent his suicide death “in this context.” Narrowing the time down is like analyzing the waters inside the San Francisco Bay in order to describe the Pacific Ocean.
Nevertheless, I have tried to “see” my son’s death from other “perspectives.”
Take the day before court. The attorney, the filmmaker, my niece and I had met for a late 3:30 p.m. lunch in Cafe Bistro on the top floor of the downtown Nordstrom store, across Market Street from the former Forever 21 building in Hallidie Plaza.
This restaurant had been the setting where many witnesses had watched Dylan leap to his death at 3:25 p.m. One blog writer had written that night that many diners had laughed when he jumped because they had been “nervous.” She said that Dylan — a man whom she had never met as far as I know — had not known Jesus like she did.
Yesterday, the innocent laughter and pleasant lunch chatter at nearby tables had given me momentary chills as I recalled her hurtful words. Will I ever understand this “perspective” regarding Dylan’s death? Do I want to?
The attorney had already been waiting for us at Cafe Bistro when we arrived — early ourselves — but on the morning of Oral Arguments we were seated and waiting on him.
I had begun to panic a little, wondering where the appellant’s compassionate, brilliant, John-Kennedy-good-looking, motorcycle-riding attorney was. Of course without our electronics we had been mandated to relinquish, we had no way of knowing he had tried to tell us we had been bumped down even lower on the court’s docket.
When Attorney Gregory Walston at last arrived — early as well — we watched him sit down quietly half a gallery section away. His composed and stoic posture revealed the deep respect he has for this process. This calmed me down for a bit, yet when both he and the other young counsel rose to cross inside the bar into the well to take their places at the plea tables and podium, I was barely able to breathe.
When Presiding Justice Barbara J.R. Jones called my son “David” in her opening remarks, my terror was complete.
We listened as Attorney Walston used all his 10 minutes at once. His honesty is as disarming as his smile is outside of court. Candid and blunt, he stated he knew of “no cases” to cite as precedents for ours. His most compelling argument was that Dylan had been “feeding off the crowd.” It is clear this young attorney is working to “evolve” the “duty to act.”
In stark contrast, both stylistically and intellectually, was the young woman who acts in the capacity to speak officially for the city of San Francisco. She also used her 10 minutes at once. City Deputy Attorney Elizabeth Pederson has always relied heavily on Adams v. City of Freemont, another case also decided in a Court of Appeal by a majority decision of 2-1.
Adams v. CF had found that police have no enforceable duty to assist any person in danger but concluded two exceptions to the general rule exist.
It is the exceptions in Adams v. CF that interest me, not for the reliance on the majority opinion, but the words of the dissenting justice who had disagreed with the other two. He said that not only is a police officer obligated to protect a victim because of the relationship he has made with that “endangered person” (the “Get back inside, YOU FOOL!” offered by Officer Perez) but also for the relationship the police make with the person or persons “whose conduct may injure the person endangered.”
The relationship the police made with the crowd was prejudicial. The SFPD never asked a soul to be quiet or move along. They refused to enforce state law (CA Penal Code 401). The chose “a side” and allowed the crowd to “injure” an “endangered person.” They taped off an area for the suicide death to occur and would not allow anyone else inside it in case the falling body would land on them.
The protected the crowd from him. They refused to protect him from them.
They prevented anyone else from intervening to help by their very presence. What would the SFPD have done if a citizen had taken it upon himself to make a citizen’s arrest for the “felony” of “encouraging a suicide”? Would the SFPD have allowed a citizen to “force” someone yelling provocations to be taken from the site? The moment Officer Perez spoke for the police, no sane citizen would have interfered in the SFPD management on the suicide attempt scene.
When she was finished with her 10 minute “perspective,” Attorney Walston asked for “30 seconds more,” which was granted. During that time Justice Henry Needham, Jr., who would go on to write the unanimous 3-0 opinion for Yount v. CCSF, questioned, so you think his “suicide should have been prevented?”
“In this context,” Walston confidently stressed again.
In the aftermath of the court experience, we were thoughtful and quiet as we stumbled out to collect our cellphones, iPads, and motorcycle helmet from the California Highway Patrol.
Five of us convened in a cafeteria on the first floor. It was an incredible experience when the attorney began reciting, “The moving finger writes, and having writ moves on. . .”
I added my voice to his to finish, “…Nor all thy piety nor wit shall lure it back to cancel half a line, nor all thy tears wash out a word of it.”
Our faces all bore bittersweet smiles. At the time, we all thought the words from the Rubaiyat of Omar Khayyam would fit the court’s responsibility perfectly, that whatever the 1DCA‘s “words” would be, they would be part of this case forever.
We would learn a different perspective eight days later.
Opinions for the Court of Appeal can be either published or “unpublished” as part of the official record (CA Rules of Court 8.1115). I will never forget my anger that Aug. 28, 2015, Friday night when I discovered this opinion would be regarded as “unpublished.”
When I later complained bitterly to my attorney that the court ought to at least have the decency to stand behind what it has written, he offered me a perspective that made my blood run cold.
“Unpublished” opinions cannot be cited or relied upon for other cases, he had explained. If this one had been certified for publication, then other potential cases would have been able to cite it.
Our responsibility in Yount v. CCSF is substantial, and our burdens have been heavy every step of the way. Nevertheless, we should be filed for the Supreme Court by the end of this week.