Judge Charles Wilson, U.S. Court of Appeals for the Eleventh Circuit. Photo: John Disney

Appellate court judges do not generally assume the role of fact-finder, but a member of the U.S. Court of Appeals for the Eleventh Circuit did what jurors are warned not to do — outside research.

A hearing in a Florida case involved a criminal suspect's excessive force and false arrest lawsuit against a sheriff's deputy accused of pulling the handcuffed man's pants down and exposing his privates to onlookers. A key question is what happened just before.

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 Marion County sheriff's deputy, noted the district court expressed skepticism that Alston could have "retrieved" his phone and made the call.

More likely, Forsyth said Alston bent over and moved his hands under his feet to the front, which he 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," Wilson said 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 the matter might be one for a jury to decide.

Rising for a brief rebuttal, Alston & Bird partner Andy Tuck 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," Tuck said as laughter rippled through the courtroom.