Judge Charles Wilson, U.S. Court of Appeals for the Eleventh Circuit

Motion Practice? Judge Has Clerk Test Behind-the-Back Phone Call Claim

Judge said he knew "on good authority that you can make a phone call with your hands behind your back."

December 13, 2019 at 01:19 PM

3 minute read

The original version of this story was published on Daily Report

Appeals court judges do not generally assume the role of fact-finder, but at least one jurist on the U.S. Court of Appeals for the Eleventh Circuit apparently wanted to investigate a particular claim in contention for himself.

A panel hearing Thursday in a Florida case involved a criminal suspect's lawsuit against a sheriff's deputy accused of pulling the handcuffed man's pants down and exposing his privates to onlookers. One key question is what purportedly happened just prior to the incident.

Plaintiff Omar Alston, who is appealing the district court's dismissal of his claims on summary judgment, said he was cuffed with his hands behind him in the back of a patrol car when he managed to extract his cellphone and call his aunt.

The claim is among several facts in dispute in the underlying case. Ian Forsyth of Hilyard Bogan & Palmer in Orlando, who represents the deputy, noted that the district court had expressed skepticism that Alston could have "retrieved" his phone and made a call with his hands restrained behind him.

More likely, Forsyth said, Alston had bent over and moved his hands under his feet to the front, which he had denied.

Judge Charles Wilson interjected that he had it "on good authority that you can make a phone call with your hands behind your back."

A moment later Wilson elaborated.

"I asked my law clerk if she could make a telephone call with her cellphone behind her back, and she did it," said Wilson, as Judge Britt Grant burst out laughing.

"Was she sitting down in a patrol car in handcuffs?" Forsyth asked.

"Well, if you can make a telephone call with your hands behind your back, I wouldn't say it's inconceivable to do it with handcuffs on," said Wilson, postulating that the matter might be one for a jury to decide.

Rising for a brief rebuttal, Alston & Bird partner Andy Tuck first thanked Wilson "for winning a bet for me."

"I had a bet with some of my colleagues that there were law clerks in the various chambers trying to go through these shenanigans," said Tuck as laughter rippled through the courtroom.