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Kyser Blakely and Emily Sauer Argue Ninth Circuit Case

Third-year students present illegal search and seizure appeal

Student advocates from Pepperdine Law’s Ninth Circuit Appellate Advocacy Clinic recently argued at the Ninth Circuit (WATCH VIDEO). Under the supervision of appellate attorneys Jeremy B. Rosen and Mark A. Kressel of Horvitz & Levy LLP in Burbank, California, third-year students Kyser Blakely and Emily Sauer drafted briefs and argued a case on behalf of Charles Byrd, who filed a section 1983 lawsuit challenging the City of Phoenix Police Department's illegal search and seizure and use of excessive force against Byrd. If successful, the victory would mark the eighth win in ten appeals made by students through the Pepperdine clinic.

Observers note that the students did especially well handling all of the panel's questions and that judge feedback to the students seemed very positive.

"The Pepperdine Law School Ninth Circuit Clinic continues to attract the best and brightest law students who want to make a difference in the world even before graduating from law school," said Rosen. "Through their high quality appellate briefs and their poised give-and-take with the appellate judges at oral argument, Emily and Kyser continue the great tradition of our clinic. I was very proud to sit with them during argument and I look forward to great things from both of them as they embark on their legal careers."

Brief Background on Case:

The Ninth Circuit appointed the Pepperdine Ninth Circuit Clinic to represent pro se prisoner Charles Byrd in his civil rights appeal against the City of Phoenix Police Department, alleging that they illegally searched Byrd and in doing so, also used excessive force against him causing seventy percent vision loss. The district court exercised its authority under the Prison Litigation Reform Act to dismiss Byrd's lawsuit at the screening stage. The district court dismissed Byrd's excessive force claim for failure to state a claim and dismissed Byrd's four other claims as barred under Heck v. Humphrey, 512 U.S. 477 (1994), which requires dismissal if a plaintiff's 1983 claim would necessarily imply the invalidity of his conviction or sentence. The students argued that dismissal was improper because first, Byrd's excessive force claim plainly stated a constitutional violation and second, because Byrd's claims were based on his plea agreement and not any evidence that may have been seized illegally, his claims should not be Heck-barred because success on his 1983 claims would not necessarily imply the invalidity of his conviction. The students also navigated an intra-circuit split in the Ninth Circuit's precedent and argued that if the two lines of conflicting precedent are clearly irreconcilable, the panel should send the case to be heard by an en banc panel of eleven judges.

The Ninth Circuit Appellate Advocacy Clinic:

Pepperdine’s Ninth Circuit Appellate Advocacy Clinic requires a one-year commitment from students. Over the course of the year, students in teams of two represent a client in an appeal before the Ninth Circuit Court of Appeals, the largest of the thirteen federal appellate courts. Students review the appellate record, research the legal issues presented by the case, prepare the opening and reply briefs, and argue the case before a panel of Ninth Circuit judges.

The clinic’s clients are drawn from the Ninth Circuit’s pro bono docket and generally include pro se litigants with civil rights claims. The cases are often suggested directly to Professor Rosen by the court, which has been highly supportive of the clinic, even arranging due dates for briefs around school schedules. Students are able to spend several hours per week at the Encino office of Horvitz & Levy, the largest firm in the nation specializing in civil appeals.

“The Ninth Circuit Appellate Advocacy Clinic is a critical component of Pepperdine’s clinical education program,” says Professor Jeffrey Baker, Director of Clinical Education. “In our clinics, students work under expert teachers to gain vital experience and to develop as professionals. We work with purpose to expand access to justice. Students apply their knowledge and skill in the real world for people in need, and the work accelerates their preparation for practice.”