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Judge Enters Partial Verdict in Earth First! Lawsuit Victory

Aug. 26, 2002

After a delay of over two months, U.S. District Judge Claudia Wilken ordered entry of a partial verdict in the Judi Bari and Darryl Cherney v. FBI and Oakland Police lawsuit (C-91-01057 CW). The unanimous 10-person jury verdict was originally announced June 11, 2002. The partial verdict was officially entered on August 13, but lawyers and plaintiffs were on vacation or otherwise unavailable to learn of the exciting certification of their victory until this week. The delay was caused by the court's need to decide how to handle the hung jury on Darryl Cherney's false arrest claim. The entry of judgment paves the way for both sides to file post-trial motions, which will be heard on November 1 in the Oakland Federal Courthouse. The defendants will most likely move to throw out the verdicts and/or to nullify or reduce the damage awards. Appeals can be filed only after post-trial motions are decided by the trial court.

The case emanated out of a May 24, 1990 car-bomb assassination attempt on the two Earth First! organizers. Rather than pursuing the terrorist(s) who committed the crime, the FBI and Oakland Police knowingly blamed the two innocent victims. The jury awarded Darryl Cherney and the estate of Judi Bari $4.4 million. Eighty percent of the award was given for violations of the First Amendment, which indicates that the jury took particular umbrage at the FBI and OPD's attempt to silence the protected speech of the Earth First! activists. Bari died of breast cancer in 1997.

The First Amendment rights violations were based on the attempts by the FBI and OPD to silence and sabotage the activists free speech rights by knowingly and falsely depicting the pair as bombers. They also won their claim for violations of the Fourth Amendment for the illegal searches of their homes. While Bari and Cherney won a stunning and decisive unanimous decision on most of their claims of constitutional violations committed by three FBI agents and three Oakland Police officers, the jury was undecided (or hung) on Cherney's false arrest claim (they awarded the claim to Bari), which might have triggered a lengthy and costly retrial to occur had the Judge not chosen to enter judgment by invoking a procedure called Rule 54 (b), which allows a partial verdict to be entered under certain circumstances.

In her ruling, Judge Wilken quotes the language of Rule 54 (b) as follows

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims of parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

Judge Wilken then wrote, "First, the Court finds that entry of a partial judgment will further efficient judicial administration. This order will not result in the Ninth Circuit being required to address similar legal and factual issues in multiple, piecemeal appeals that may occur in this case. Plaintiffs have represented to the Court that they will not pursue Plaintiff Cherney's arrest claim in the event that appeal of the claims upon which judgment is entered today does not result in remand to the district court for re-trial. In other words, Plaintiffs would dismiss Plaintiff Cherney's arrest claim if their claims are affirmed in all respects by the Ninth Circuit, or if their claims are reversed and judgment is entered in favor of Defendants in all respects. Plaintiff Cherney's arrest claim will only be tried by this Court, and subject to potential appeal, if other claims are remanded by the Ninth Circuit for re-trial. Plaintiff Cherney's arrest Claim would then be tried along with those claims remanded for re-trial, and there would be a single, consolidated appeal of that second trial, if any....

"Further, if the Court does not enter partial judgment on the claims upon which the jury reached verdicts, the Court and the parties will be forced to re-try Plaintiff Cherney's arrest claim alone, before proceeding to an appeal. While this claim is a minor part of the case as a whole, the facts of the case are such that it would take nearly as long to try as did the entire case. This would require a multiple-week trial that would unnecessarily burden the resources of this Court, the United States, the City of Oakland, the individual Defendants and Plaintiffs. The wastefulness of an immediate re-trial of Plaintiff Cherney's arrest claim would be even further exacerbated in the event that an appeal results in remand and another (third) trial."

Judge Wilken dismissed the FBI and OPD's arguments as follows:

"Defendants argue that entry of partial judgment would result in multiple appeals and piecemeal litigation. However, the Court finds that this is not the case. Upon the Court's entry of partial judgment, Plaintiff Cherney's arrest claim will only be re-tried and appealed, if other claims must be re-tried, which will also be appealed. No additional appeal will occur as a result of the remanded claims. If the claims upon which judgment is entered today are not remanded to the district court for re-trial, Plaintiffs have agreed that they will not independently pursue Plaintiff Cherney's arrest claim, so no further appeal could occur in that case either."

Judge Wilken recognized that justice had been long delayed in this case and explained: "An examination of the equities also favors entry of partial judgment. This case is eleven years old and has already been the subject of two pre-trial appeals. A re-trial of Plaintiff Cherney's arrest claim will only further delay the case, and result in higher costs to all parties involved, both government and individual."

The judge appeared to appreciate the Bari-Cherney legal teams' generous offer to dismiss the undecided verdict if the appeals court does not overturn any of the rulings and remand the case for re-trial. The proposal was originally suggested by the judge herself. Wilken wrote: "Because the Court believes that it would be an extreme misuse of judicial resources to re-try the single, remaining claim when Plaintiffs are willing to forgo the claim in the event that no re-trial becomes necessary after appeal...the Court believes that the entry of partial judgment pursuant to Rule 54 (b) is the course of action that will produce the most expeditious and fair resolution to the case."


Click here to view the full text of Judge Wilken's 10-page order.

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