Judge Bybee Won't Recuse Himself in Fajitagate Excessive-Force Case

SAN FRANCISCO - Federal appellate Judge Jay S. Bybee has denied a plaintiffs' motion to recuse himself from hearing an excessive-force appeal in a notorious case involving a sack of steak fajitas.

Plaintiffs' attorney Dennis Cunningham, a San Francisco sole practitioner, asserted that Bybee, of the 9th U.S. Circuit Court of Appeals, cannot be fair because of his prior involvement in Bush administration torture policy. In 2002, Bybee, an assistant attorney general, authorized a now-repudiated memo which significantly narrowed the definition of torture.

Cunningham's motion called excessive force a form of torture.

The motion, filed Thursday, and Bybee's denial without comment the next day are the backdrop for the oral argument scheduled for Wednesday in a special court session at Boalt Hall. Snyder v. City and County of San Francisco, 06-15838.

The plaintiffs, Jade Santoro and Adam Snyder, are challenging U.S. District Judge Jeffrey White's dismissal of their federal civil rights claims.

Veteran civil rights practitioner Cunningham represents Santoro.

On Friday, Cunningham insisted, "It's not right for him to sit on such a case. I regret that the full court did not take up the recusal question. It's a foregone conclusion that Judge Bybee is committed to the opposing view."

Cunningham added that the danger of angering Bybee by moving for recusal is minimal.

"It's a calculated risk," he said. "I don't anticipate other than that he'd be dead set against us, anyway."

Bybee's selection to the three-judge panel hearing the plaintiffs' appeal and his rejection of the call for his recusal add another volatile element to a long-running saga involving three off-duty police officers in a brawl with two men outside a Union Street pub in 2002.

The case became widely known as Fajitagate, and it was notable from the start because one of the officers was the rookie-cop son of Deputy Chief Alex Fagan Sr., who was accused but cleared of trying to cover up the beating.

The officers were acquitted of criminal charges, but two of them were ordered to pay Santoro and Snyder a total of $46,000 by a state civil jury. Santoro and Snyder sued in federal court, saying the city and its Police Department had long condoned the use of excessive force by officers.

White's decision held that the police and the city had no legal duty to protect citizens from off-duty officers.

Deputy City Attorney David B. Newdorf, defending San Francisco in the Fajitagate case, said his office had no involvement in the recusal issue.

Cunningham's spotlight on Bybee's link to the White House's disputed torture policy elevates the case's controversy level.

In 2002, as alleged al-Qaida captive Abu Zubaydah underwent CIA interrogation, Assistant Attorney General Bybee signed a Department of Justice memo narrowing the definition of torture to methods that cause "severe physical or mental pain or suffering."

The confidential memo defined "severe pain" as involving damage that rises "to the level of death, organ failure or the permanent impairment of a significant body function."

In the spring of 2003, the Department of Justice withdrew Bybee's memo and a second document by Deputy Assistant Attorney General John Yoo, declaring that the Geneva Conventions and the War Crimes Act do not apply to al-Qaida.

In March 2003, the Senate confirmed Bybee as a circuit judge, and Yoo returned to his tenured professorship at Boalt Hall. Bybee keeps chambers in Las Vegas.

In June 2004, the Washington Post obtained and published descriptions of Bybee's memo. Yoo's memo also was leaked.

Cunningham's motion claimed that Bybee's pro-torture attitude made him unfit to consider a case involving "domestic forms of torture," including police use of "unnecessary, and gratuitous, and so often sadistic, uses of force."

It's not the first protest over Bybee's record. On Feb. 1, 25 Yale law students stood during a Bybee campus speech and covered their heads with black trash bags in imitation of hooded military prisoners, according to a published report.

Bybee's opinions have not been uniformly conservative. In 2006, he wrote for a six-judge majority in an en banc opinion reversing a northern California couple's convictions in a murder-for-hire case because the prosecutor excluded Native Americans from the jury. Kesser v. Cambra, 465 F.3d 351.

The other members of the panel considering the Fajitagate appeal are Circuit Judge Sidney R. Thomas of Billings, Mont., and Senior Circuit Judge John T. Noonan of San Francisco.