[00:00:01] Speaker 01:
And the last argument for today is Chris Adamson versus Pierce County municipality at all.

[00:00:07] Speaker 01:
Case number 24-3545.

[00:00:44] Speaker 02:
All right, may it please the court, your honors, Joan Mel appearing on behalf of the nine SIU officers who are here requesting relief from the district court orders.

[00:00:54] Speaker 02:
I hope to reserve 10 minutes for a rebuttal and try to hit the highlights here in my opening.

[00:01:00] Speaker 02:
I feel a little deja vu.

[00:01:02] Speaker 02:
I think I was here in 2019 really with the same issue.

[00:01:06] Speaker 02:
If there is conduct by the prosecutor's office against law enforcement officers, in particular these SIU officers or investigators, where the prosecutors are fabricating or coming up with the content of materials that are critical of these officers, is that a purely prosecutorial function that immunizes them and protects them from any kind of liability?

[00:01:32] Speaker 02:
And the absolute answer must be no.

[00:01:35] Speaker 02:
It was error for the district court to distinguish Kalina V. Fletcher and the Ames V. Lindquist case that was before this court previously and rule on a motion to dismiss that there was no application because the statements promulgated by Schott, by Whist.

[00:01:55] Speaker 02:
were not in court statements.

[00:01:58] Speaker 02:
I don't know why that would be a factor that would weigh against or in favor of prosecutorial immunity because, as we know, prosecutorial immunity

[00:02:11] Speaker 02:
is a nexus that's built around a purely prosecutorial function that is quasi judicial in nature.

[00:02:19] Speaker 02:
If the statements were promulgated by conducting investigations and generating criticisms and giving statements to Kitsap County,

[00:02:28] Speaker 02:
and giving statements to the media and out of whole cloth inviting other disgruntled co-workers to come forward and complain.

[00:02:40] Speaker 04:
Maybe it would help me if maybe we focused a few of the alleged wrongful acts and whether or not the prosecutors are entitled to absolute immunity.

[00:02:52] Speaker 04:
And one that I find interesting is

[00:02:57] Speaker 04:
You know, they wrote their reports as to why they weren't going to go ahead with two prosecutions.

[00:03:03] Speaker 02:
Right?

[00:03:04] Speaker 02:
I don't understand.

[00:03:05] Speaker 04:
There were two, the DA's.

[00:03:07] Speaker 00:
Declined memo.

[00:03:08] Speaker 04:
They declined to file two cases.

[00:03:10] Speaker 00:
Oh, correct.

[00:03:11] Speaker 04:
And they wrote a report, or they wrote a memo, not a report, but a memo explaining why.

[00:03:18] Speaker 02:
Well, there's Wist's memo on the one case.

[00:03:21] Speaker 02:
There were two memos, yes.

[00:03:22] Speaker 02:
And then there's two documents on the... Just hear me out for just one second.

[00:03:27] Speaker 02:
Absolutely.

[00:03:28] Speaker 04:
Are they entitled to absolute immunity for those two reports?

[00:03:34] Speaker 02:
Absolutely not.

[00:03:35] Speaker 02:
Why not?

[00:03:36] Speaker 04:
Because the content of the report is... They were making a decision about whether or not to file, and the reasons for not filing a case, directly in court.

[00:03:44] Speaker 02:
Well, they weren't.

[00:03:45] Speaker 02:
My argument is that it was pretextual just by timing alone because they did it well after they had declined the decision.

[00:03:50] Speaker 02:
But if you say we're not going to delve into decline memos because decline memos are purely prosecutorial in nature,

[00:03:58] Speaker 02:
the content of those decline memos is their content.

[00:04:03] Speaker 02:
It is the Kalina V. Fletcher analysis because the criticisms are their own and not just opinions of the evidence.

[00:04:11] Speaker 00:
That's what a prosecutor does.

[00:04:13] Speaker 00:
It makes a considered or ill-considered judgment, prosecute or not prosecute.

[00:04:19] Speaker 00:
It just seems to me that's the weakest part of your absolute prosecutorial case.

[00:04:26] Speaker 00:
And I'm going to go later to the question about the FBI.

[00:04:29] Speaker 00:
Correct.

[00:04:30] Speaker 00:
What's your best case for saying that a prosecutor's memo, internal memo, on whether to a prosecutor or not is not subject to absolute immunity?

[00:04:41] Speaker 00:
What case?

[00:04:41] Speaker 02:
Who authored the facts?

[00:04:43] Speaker 00:
No.

[00:04:43] Speaker 00:
What case?

[00:04:44] Speaker 02:
Colina V. Fletcher.

[00:04:46] Speaker 02:
And actually, Your Honors, there's a very good case that Sergeant Darby just learned of out of the Eastern District of Pennsylvania's Bologna versus Krasner.

[00:04:56] Speaker 02:
Is that in the briefs?

[00:04:57] Speaker 02:
It is not in the briefs.

[00:04:58] Speaker 00:
Okay, then rather than discussing it here because we don't have it, the better procedure would be send us a 28-J letter with an additional citation.

[00:05:08] Speaker 02:
okay yet yes i can do that i know that the time it had come and gone when i learned of this particular no i mean we can do that always open to hearing about another case yes well it's it's telling because it goes through in-depth where are the facts coming from and the row case as the the court is looking into is one where

[00:05:28] Speaker 02:
Roe is not, or the prosecutor, I can't remember which one was the prosecutor by name for certain, but the prosecutor is sitting there receiving information from law enforcement, the law enforcement is critical of it, and also from in court testimony assessing the credibility of the officer.

[00:05:47] Speaker 01:
But the decline memo there was also alleging pretext, that there were false things in that decline memo, and the court, the panel there, found that it was still absolutely immune from suit.

[00:06:01] Speaker 01:
That seems to foreclose your claim, in my view.

[00:06:03] Speaker 02:
It doesn't when you look at where those facts are coming from.

[00:06:07] Speaker 02:
It's not the facts of what occurred.

[00:06:09] Speaker 02:
It is the facts that the prosecutor's saying occurred.

[00:06:13] Speaker 02:
It is the prosecutor testifying, for instance, that the conduct at issue that Darby did a particular search of a premises, when Darby didn't do a search of the premises, when the prosecutor is saying, the prosecutor is testifying in Whist on Wales,

[00:06:38] Speaker 02:
that there were two doors, not three.

[00:06:40] Speaker 04:
That's the prosecutor's dishonest statement in the decline memo that creates... But if it's officially connected to the court process or the judicial process, as Judge McEwen said, it could be a wrong reason, it could be a stupid reason, it could be any reason that's ridiculous.

[00:07:02] Speaker 04:
But if it's connected, why doesn't it get, it still seems to be that it's entitled to qualify, I mean, to absolute immunity.

[00:07:09] Speaker 02:
Not under Kalina V. Fletcher.

[00:07:11] Speaker 04:
Well, I guess I'll have to go back and read Kalina V. Fletcher.

[00:07:14] Speaker 02:
When the prosecutor is generating the content at testing to the circumstances as they occur.

[00:07:21] Speaker 01:
Here we have Whist saying- Is Kalina V. Fletcher about a decline memo?

[00:07:25] Speaker 01:
Is that case related to a decline memo?

[00:07:27] Speaker 02:
No, it's not a decline memo.

[00:07:29] Speaker 01:
Then why is it so pertinent in your mind?

[00:07:33] Speaker 02:
Well, because it's testimony, it's factual, it's where is the information, who is the author, author of the information and not author of the opinions of what the underlying facts, how to weigh those, but making up the facts to put in there from its inception.

[00:07:50] Speaker 02:
for an animus that's inappropriate.

[00:07:53] Speaker 02:
And that's where you get into, how did all these facts come into being?

[00:07:58] Speaker 02:
We're talking about a decline memo that's not generated from law enforcement reports.

[00:08:02] Speaker 02:
It's generated from the communications and investigations and outside the scope inquiries that these prosecutors are making of these SIU investigators.

[00:08:14] Speaker 02:
And the only, the very important distinguishing factor here

[00:08:18] Speaker 02:
from those other cases or Roe is that the relationship and the abuse of authority came and was derived from these prosecutors being able to control the sheriff's department and leadership there because they are the prosecutors for that office.

[00:08:37] Speaker 02:
On the civil side, it would never have happened had the employment relationship not existed.

[00:08:43] Speaker 02:
This hasn't happened to any other law enforcement officers

[00:08:47] Speaker 00:
doing exactly what these law enforcement officers do in Pierce County because they don't work for Pierce County and they're not subject to this behavior that is... This is a... I'm just going back to Colline V. Fletcher right here and that related to an affidavit related to an arrest warrant, right?

[00:09:11] Speaker 00:
An affidavit of probable cause, I believe.

[00:09:13] Speaker 00:
Well, that's what you need to get an arrest warrant.

[00:09:16] Speaker 00:
That was the prosecutor making false statements in that affidavit with respect to probable cause.

[00:09:26] Speaker 00:
Right?

[00:09:27] Speaker 00:
Right.

[00:09:28] Speaker 00:
So that's not the same as a decline memo.

[00:09:32] Speaker 02:
Well, a decline memo is further removed from the quasi-judicial process, and there's no even real nexus to a charging decision.

[00:09:41] Speaker 02:
If you go back to all of the cases, and in particular, in Kalina v. Fletcher, I really like the analysis that's in the Dinsman case, I believe it was.

[00:09:55] Speaker 02:
Dinsman case where they parse through the relationship and the motivation and that's ancient old case law But the relationship between the ship's captain and what he's doing and what's motivating and he's truly acting in this one particular role Or is he stepped outside of that role?

[00:10:11] Speaker 02:
A decline memorandum done when they did the decline memorandum was comprised of content that was generated by their own investigative activities not a law enforcement investigation if you look at row in those other cases you're talking about law enforcement investigations of underlying crimes and the

[00:10:33] Speaker 02:
The investigation itself is the law enforcement investigation.

[00:10:39] Speaker 02:
Here we're dealing with an investigation that's conducted by and headed up by Schott.

[00:10:45] Speaker 02:
Schott is interviewing the SIU officers and other colleagues of theirs and saying, what do you think they've done wrong?

[00:10:53] Speaker 02:
Well, I think they've done this wrong.

[00:10:54] Speaker 02:
Obviously, there's two doors, not three doors.

[00:10:56] Speaker 02:
Well, wait a minute.

[00:10:57] Speaker 01:
Can I ask you about that?

[00:10:58] Speaker 01:
That, as I understand it, one of the bases for that investigation was to determine whether he needs to turn over exculpatory evidence or Brady material.

[00:11:10] Speaker 01:
And so why isn't that within the parameters of a prosecutorial function?

[00:11:17] Speaker 02:
Because the motive wasn't there.

[00:11:22] Speaker 02:
The motive really was, I'm going to sit on these guys because I don't like what

[00:11:27] Speaker 02:
what they're doing, but assuming that we don't get into what the particular intent is, he's conducting an investigation.

[00:11:38] Speaker 02:
A Brady investigation per the... Well, there is no such thing as a Brady investigation.

[00:11:44] Speaker 02:
Prosecutors are supposed to gather whatever they hear from an investigation that they need to disclose.

[00:11:51] Speaker 02:
They're supposed to be compiling the information and saying, yes, it's Brady, no, it's not Brady.

[00:11:55] Speaker 01:
Here they're generating we have cases that talk about a duty to investigate to make sure that exculpatory material gets handed over and so But have you seen a case where that?

[00:12:04] Speaker 02:
investigative duty has been anything more than reaching out to law enforcement and getting the getting the investigation of the criminal action not a prosecutor investigating a

[00:12:15] Speaker 02:
The law enforcement officers that's the difference the prosecutors were taking not taking the investigative materials on their face They were taking they were demanding law enforcement provide witnesses through their colleagues.

[00:12:30] Speaker 02:
They were demanding each of these individuals the

[00:12:33] Speaker 02:
that they could only do because they were the employer, demanding that they come and sit with them and subject themselves to cross-examination, not on the underlying facts of the case.

[00:12:41] Speaker 02:
And Darby said it right in the interview with Schade.

[00:12:44] Speaker 02:
He's like, are you just here to criticize the way Darby does work?

[00:12:48] Speaker 02:
Are you here to know what happened in the facts of the underlying case?

[00:12:52] Speaker 02:
Shot says both Shot is expanding his role beyond gathering Brady material or ascertaining if there's Brady material and Creating it by conducting the interviews I guess, but that's my question if let's say there's dual motives.

[00:13:10] Speaker 01:
Let's just for let's say it's shot is trying to investigate to see if wrongdoing is happening by the by the officers and

[00:13:16] Speaker 01:
and is trying to determine whether to collect, whether there's ready material.

[00:13:21] Speaker 01:
Isn't that still subject to absolute immunity?

[00:13:23] Speaker 02:
Absolutely not because you know where the investigation is supposed to incur on the law enforcement side and the county has established protocols and procedures for doing that.

[00:13:33] Speaker 02:
Schott acted as the investigator rather than the complaining witness and he was given deference because he was the civil, he was the prosecutor in that

[00:13:43] Speaker 02:
Side of the aisle advises the sheriff and the sheriff just said whatever you tell me they did wrong They must have done wrong rather than staying in a sheriff's role of saying no I will conduct the investigation into my officers, or I will farm it out for investigation and The findings will be the findings here ultimately they shot makes the big

[00:14:09] Speaker 02:
big error with justice and FBI and it's like you guys were corrupt.

[00:14:14] Speaker 02:
No, they weren't.

[00:14:15] Speaker 02:
You were wrong.

[00:14:16] Speaker 02:
So he has to be liable for that.

[00:14:18] Speaker 02:
Then he comes down and says, okay, well, egg on my face, they must have done something procedurally wrong.

[00:14:23] Speaker 02:
He convinces through his own

[00:14:28] Speaker 02:
Interpretation of wrongdoing based on facts that he made up that were not correct facts that there should be this kitsap Investigation and then who provided the testimony for kitsap the kitsap relied on We're mixing and matching and it seems to me that was one of the problems with the briefs you got to go through each of the claims same problem with the district court, so we've talked about

[00:14:50] Speaker 00:
the memo to decline.

[00:14:52] Speaker 00:
Now you're talking about statements to Kitsap County investigators.

[00:14:56] Speaker 02:
Right, it's each piece of different conduct.

[00:14:58] Speaker 00:
Well, that's right because each of those claims has to be analyzed for absolute immunity.

[00:15:04] Speaker 00:
You can't just say yes, no, it's not a global thing.

[00:15:08] Speaker 00:
So I'm inclined, you know, with your argument on the statements to Kitsap County investigators that that was not part of what we would consider

[00:15:20] Speaker 00:
normally the traditional function of the prosecutor.

[00:15:26] Speaker 00:
And why is that?

[00:15:27] Speaker 00:
Because there they become witnesses.

[00:15:30] Speaker 00:
But I think that's different from the decline memo.

[00:15:33] Speaker 02:
Oh, absolutely.

[00:15:34] Speaker 02:
It is.

[00:15:34] Speaker 02:
The decline memo is a much more nuanced argument than those other elements.

[00:15:39] Speaker 00:
Absolutely.

[00:15:40] Speaker 00:
Now we've talked about decline.

[00:15:42] Speaker 00:
We've talked about Kitsap.

[00:15:44] Speaker 00:
Let's talk about the FBI.

[00:15:47] Speaker 00:
And so is your position on the FBI the same as essentially the Kitsap County investigators?

[00:15:56] Speaker 02:
What is your position?

[00:15:57] Speaker 02:
Yes, and even more egregious in that Schott was the complaining party.

[00:16:03] Speaker 02:
I mean, he came up with this erroneous theory of corruption that was

[00:16:08] Speaker 02:
I'm down to five minutes and I wanted to reserve, so.

[00:16:11] Speaker 00:
Well, no, we'd like to actually understand each of the claims.

[00:16:14] Speaker 00:
So, okay.

[00:16:15] Speaker 02:
All right.

[00:16:15] Speaker 02:
Absolutely.

[00:16:16] Speaker 02:
So, yes, it is not unlike Hitsap.

[00:16:20] Speaker 02:
He's a witness, but he's...

[00:16:25] Speaker 02:
Would you call that an administrative role?

[00:16:27] Speaker 02:
I'm going to reach out to the FBI.

[00:16:28] Speaker 02:
I'm going to use my connections.

[00:16:30] Speaker 02:
I'm going to facilitate this investigation by providing what I believe is my interpretation, erroneous one, albeit of a text.

[00:16:40] Speaker 00:
Well, that raises a question, though.

[00:16:43] Speaker 00:
That would basically chill interagency cooperation between law enforcement, if we take your position.

[00:16:51] Speaker 02:
Why?

[00:16:52] Speaker 02:
I mean, the law enforcement can go to law enforcement.

[00:16:55] Speaker 02:
Schott didn't need to be there.

[00:16:56] Speaker 02:
Schott didn't need to be interpreting the things.

[00:16:59] Speaker 02:
Schott should have been a complaining witness, a statement taken, recorded, verified, and given to the FBI, if that was the concern.

[00:17:07] Speaker 02:
But no, Schott, he was going to be there.

[00:17:10] Speaker 02:
He was going to shake down the witness, because he knew he was going to get it.

[00:17:15] Speaker 02:
He knew that there was corruption, and he had sniffed it out, and he was going to.

[00:17:21] Speaker 02:
I think it's ego and power and just an investment in...

[00:17:28] Speaker 02:
Colored lens you can see it in the Clark County report once Clark County got involved and they weren't being Directed directly influenced by the prosecutors who were otherwise controlling the narrative.

[00:17:43] Speaker 00:
They're like this is You are way looking at the result if we're gonna go through each of the claims even though I don't think the briefs and the district court did that in the same way Thank you

[00:17:56] Speaker 00:
For claims for which we find there is not absolute immunity.

[00:18:00] Speaker 00:
Do you agree that would be remanded and then qualified immunity or any other?

[00:18:05] Speaker 02:
Defenses would come up Well because I've been here before on some of the same clean arguments I would think that they should have known better from the gig my question pretty simple one if We decide some of these were not entitled to court

[00:18:21] Speaker 02:
Absolute immunity right that would be a reversal would would the remand in effect take up the question of qualified immunity The reason I'm hesitating is because there was kind of an indication that qualified immunity was addressed But I don't think that it could be adequately addressed, and I think it should be Addressed the more correct answer would be to allow the discovery on the fact so you get the fact specific to immunity and then you can apply the

[00:18:51] Speaker 01:
Qualified immunity to that conduct ask you before you step away switching gears on the officer defendants and the Pickering analysis so the summary judgment order is that

[00:19:12] Speaker 01:
Is that ultimately a factual issue or a legal one that we're going to resolve because it seems pretty clear that there are some level of disruption that went on when if the if the prosecuting attorney says we can't trust or we don't believe that the stuff coming out of Si you is is

[00:19:33] Speaker 01:
credible enough to to pursue prosecutions for Why wouldn't that be sufficiently?

[00:19:39] Speaker 02:
disruptive in order to say on a balancing Analysis that that overcomes plaintiffs first amendment rights because the prosecutor has to be accountable to the public and the electorate for the prosecutors decisions the sheriff should have been standing in the role of Okay, so you're not going to charge

[00:20:00] Speaker 02:
The cases that involve these siu officers They didn't do anything wrong.

[00:20:05] Speaker 02:
That's your call.

[00:20:06] Speaker 02:
They shouldn't have been punished as a result of an overreaction of Prosecutor rob net to these officers defending their position.

[00:20:16] Speaker 02:
I mean if if you deem from the viewpoint of

[00:20:21] Speaker 02:
Well, I guess what you're asking me is if I am a reasonable person viewpoint the fact that cases aren't going to get prosecuted that are Investigated by these officers isn't that sufficient disruption.

[00:20:31] Speaker 02:
No, that's not disruption.

[00:20:33] Speaker 02:
They're continuing to investigate crimes They're continuing to get drugs off the street, and they actually are doing the benefit of Getting the drugs off the street whether prosecuted or not and then that's on Rob net if she chooses not to prosecute because she doesn't like these guys and

[00:20:50] Speaker 02:
That's where the law rests.

[00:20:55] Speaker 02:
But if these guys are wrongfully accused and the sheriff knows that, he can't punish them just because the prosecutor has thin skin and doesn't want anybody to question her actions.

[00:21:09] Speaker 02:
It upsets the balance so much between

[00:21:14] Speaker 02:
affording SIU investigators some level of discretion to conduct their investigations as they deem appropriate.

[00:21:20] Speaker 02:
And the problem with this is it never would have happened in the way it happened but for the election and the desire to tarnish Fajardo.

[00:21:30] Speaker 04:
So let me ask you a question.

[00:21:36] Speaker 04:
You said that they were punished, or words to that effect.

[00:21:39] Speaker 02:
Yeah.

[00:21:41] Speaker 04:
Was that because they shut down the unit?

[00:21:44] Speaker 02:
Shut down the unit.

[00:21:45] Speaker 04:
Was there any specific action taken against individual officers?

[00:21:53] Speaker 04:
No, probably that you allege in the complaint.

[00:21:55] Speaker 04:
It was a very long complaint.

[00:21:57] Speaker 04:
Whatever happened to the short, sweet complaint that the federal rules used to

[00:22:02] Speaker 04:
Allow for the ruling that said if I don't have it in there that it gets I don't remember seeing in the complaint of the parts that I that I looked over where There was individual you know like So adverse action taking against particular officers it was I gather what you're complaining about is shut down the unit all twice if you look in there in

[00:22:29] Speaker 02:
so that where i'm trying to think of run summary judgment or uh... just at the complete stepping back the most summary judge because that's what that so if you look at each of these individual officers you read their declarations they are compelling and they're very moving and probably the number one most

[00:22:45] Speaker 01:
Offensive thing that was damaging to them was the decision to publish their names in the new paper that We'll get to that, but I mean just a judge pious this question what is the punishment involved in deciding not to continue a unit and Sending the officers to other administrative positions

[00:23:06] Speaker 02:
The adverse action or punishment is that these officers regularly and routinely consistently worked overtime because of the nature of their work they were always on.

[00:23:18] Speaker 02:
With the removal from that position, they lost, one, the ability to do the overtime because they were restricted on overtime.

[00:23:26] Speaker 02:
They weren't approved to do overtime.

[00:23:29] Speaker 02:
Large financial hit, but there's also and it's in the complaint.

[00:23:33] Speaker 02:
Yes, okay Yes, and that and it's in their declarations, so we're on summary judgment here.

[00:23:39] Speaker 02:
That's why I asked that question, but yes those details are there and then and then reputational harm these

[00:23:48] Speaker 02:
SIU investigators were known and recognized for their success and their ability in working with informants effectively.

[00:24:00] Speaker 02:
They were consulted regularly.

[00:24:02] Speaker 02:
They had really strong working relationships with other law enforcement agencies.

[00:24:08] Speaker 02:
And once this shadow came over them that they were corrupt somehow they couldn't get rid of that stink and nobody would even talk to them so they were shunned in a way that was particularly harmful emotionally and professionally.

[00:24:24] Speaker 02:
They couldn't, they weren't even looked at.

[00:24:28] Speaker 02:
And some people kept saying, well, Fajardo in particular with her political campaign, I mean, she's like, you carry this taint of doing something horrible even if you didn't do it?

[00:24:40] Speaker 02:
What?

[00:24:41] Speaker 02:
What?

[00:24:42] Speaker 02:
I mean, where's the accountability on the prosecutor's side?

[00:24:45] Speaker 04:
If you get it wrong.

[00:24:45] Speaker 04:
So they responded, I guess it was to the DA's

[00:24:52] Speaker 02:
Listing of the break giving out the Brady list so they then responded to the press correct My siu officers responded there was a series of questions and those questions are in the record that the media Proposed and wanted answered and they answered and they answered this public and

[00:25:11] Speaker 02:
And some of their responses were reported.

[00:25:15] Speaker 02:
And really, they said exactly what Clark County said was the problem.

[00:25:20] Speaker 02:
This was a communication meltdown.

[00:25:22] Speaker 02:
It was politically motivated because if you can have Fahar to look bad in the press at this particular moment and you can blame her, this is good for the status quo.

[00:25:33] Speaker 04:
Is that the First Amendment Act that you're seeking to vindicate?

[00:25:36] Speaker 04:
That is, that they were retaliated for

[00:25:38] Speaker 02:
Absolutely.

[00:25:39] Speaker 04:
In the summary judgment proceeding, it seems like

[00:25:48] Speaker 04:
I mean, it's caused quite a disruption in the police department and with the DA so that there was friction between the DA and the sheriff's department.

[00:26:01] Speaker 02:
There was friction, but not because of what my clients did.

[00:26:05] Speaker 02:
The friction and the disruption that you're looking for in a pickering analysis is how did these folks behave?

[00:26:13] Speaker 02:
Did they go outside what can be reasonably expected that they should or could or can do?

[00:26:20] Speaker 02:
No, they spoke to the media and they gave their side of a story on an issue that was being publicly discussed and out there because of the prosecutor's office and the sheriff's department saying, oh yeah, we've got these corrupt officers and we know something's wrong and we don't know exactly what it is but we're going to get down to it.

[00:26:38] Speaker 02:
You cannot have First Amendment retaliation if you can't protect their right to go tell their side of the story.

[00:26:45] Speaker 01:
Can I ask about that?

[00:26:49] Speaker 01:
For the prosecutors, and whether it's wise or not to have published the list is a separate question, but you have, government has a right to speak as well, right?

[00:27:01] Speaker 01:
And the prosecutors say something about your clients, your clients respond in public, and so there's competing versions of events about what happened.

[00:27:11] Speaker 01:
Why is that the basis of a First Amendment retaliation claim?

[00:27:15] Speaker 01:
In other words, why is it that your clients have a right to speak, but if the prosecutors speak, it's retaliation under the Constitution?

[00:27:23] Speaker 02:
Well, because that's not the comparator.

[00:27:25] Speaker 02:
The prosecutor demanded that some sort of punishment be invoked.

[00:27:33] Speaker 02:
And as this complaint has been pled, I don't sue Mary Robbnett.

[00:27:38] Speaker 02:
I don't sue Mary Robbnett because the ones who ultimately invoked the punishment and caused

[00:27:46] Speaker 02:
or invoked the harm was the sheriff and the undersheriff who said, okay, you are upset based on our side of the story, what our people have said, fine, you will no longer have to deal with it and we are going to shun them and sweep them under the carpet.

[00:28:07] Speaker 01:
But I guess my point is, if you're going to sue a non-employer, the prosecuting office or the defendants within that, for actions taken by the sheriff, you're going to also have to establish that they were controlling the actions of the sheriff, don't you?

[00:28:24] Speaker 02:
Well, like I said, on the First Amendment retaliation, the argument is that Pastor and Baumkamp retaliated.

[00:28:37] Speaker 02:
They based their retaliation on the invitation of the prosecutor, and it's all Pierce County.

[00:28:43] Speaker 01:
So there's not a retaliation claim against the prosecutor?

[00:28:46] Speaker 02:
I didn't sue her for that.

[00:28:50] Speaker 04:
The retaliation was shutting down the department.

[00:28:52] Speaker 02:
It was shunning these guys and removing them from their positions.

[00:28:57] Speaker 02:
From their unit.

[00:28:58] Speaker 02:
Yes.

[00:28:58] Speaker 02:
And the meaningful work assignments.

[00:29:00] Speaker 02:
You can see in adverse action cases and retaliation.

[00:29:03] Speaker 02:
It's very generous.

[00:29:04] Speaker 02:
If you're shunned and you're given meaningless work, I mean, Darby sat on the bench.

[00:29:08] Speaker 02:
Darby is, let's go.

[00:29:11] Speaker 02:
You know, you sit him in a property room twiddling his thumbs.

[00:29:14] Speaker 02:
That's insanity making.

[00:29:16] Speaker 01:
OK.

[00:29:16] Speaker 01:
I think we've gone way over.

[00:29:18] Speaker 01:
So let's hear from you.

[00:29:19] Speaker 01:
Thank you, Your Honors.

[00:29:19] Speaker 01:
Thank you.

[00:29:30] Speaker 03:
Good morning, Your Honors.

[00:29:32] Speaker 03:
May it please the Court, my name is Frank Cornelius and I represent all appellees.

[00:29:37] Speaker 03:
There are two parts to Appellants' Appeal I think the Court was focusing on at the last argument.

[00:29:43] Speaker 03:
The first part primarily focuses on prosecutorial immunity involving potential exculpatory and impeachment evidence determinations and charging decisions.

[00:29:52] Speaker 03:
And then the second part primarily focuses on liability for two shutdowns of the Pierce County Sheriff's Office Special Investigation Unit or Drug Unit.

[00:30:01] Speaker 03:
The District Court's Rule 12b6 dismissal of claims based on prosecutorial immunity against all named appellees was proper.

[00:30:09] Speaker 03:
Review of a motion to dismiss is limited to the contents of the complaint.

[00:30:16] Speaker 03:
Allegations and argument first appearing in appellant's brief

[00:30:21] Speaker 03:
are not and not in the complaint should not be considered.

[00:30:25] Speaker 03:
Here the factual allegations in appellant's complaint against appellees triggered immunity.

[00:30:31] Speaker 03:
Claims against appellant shot relate to potential impeachment evidence determinations and his involvement in the criminal prosecution of two cases.

[00:30:41] Speaker 03:
Claims against appellate appellee whisked relate to his involvement in the Wales case and his decision not to prosecute.

[00:30:49] Speaker 03:
And then the claims against appellees, pastor and bomb camp relate to their assistance or involvement with the prosecutors in regarding the Brady determination or Brady pie evidence.

[00:31:02] Speaker 03:
Police have an equal duty to comply with Brady pie obligations and they are also given immunity for those actions.

[00:31:10] Speaker 03:
Absolute immunity from civil liability focuses on the function performed by the prosecutor and not the job title of a prosecutor or any intent of the prosecutor.

[00:31:22] Speaker 03:
The reason the focus is on the function and not the intent of the prosecutor is to protect the judicial process.

[00:31:29] Speaker 04:
Let me just ask you this.

[00:31:31] Speaker 04:
So we focused heavily on the decline memos with your opposition counsel, but I want to ask you about the press.

[00:31:44] Speaker 03:
So you're now talking about?

[00:31:46] Speaker 04:
No, the press, the giving information to the press, the prosecutors.

[00:31:52] Speaker 03:
Giving the Brady list.

[00:31:53] Speaker 03:
Giving the Brady list.

[00:31:53] Speaker 03:
You're asking whether or not that would be something that would be discoverable.

[00:31:59] Speaker 00:
No.

[00:32:00] Speaker 00:
Is that a function of a prosecutor?

[00:32:02] Speaker 03:
Oh, I see.

[00:32:03] Speaker 01:
It's a subject to absolute immunity.

[00:32:04] Speaker 04:
I see.

[00:32:06] Speaker 04:
You're not asking for not being clear with my question, but my colleagues clarified it.

[00:32:11] Speaker 03:
The claims against prosecutor Whist and claims against prosecutor Schott don't relate to giving the pie list to the news media.

[00:32:22] Speaker 03:
A pie list, I think, is inherently public information.

[00:32:26] Speaker 03:
And a request then to give a pie list out is not something that is protected or is confidential.

[00:32:33] Speaker 03:
But as it relates to the claims in the complaint against whisked and shot, there is no allegation that they disclosed.

[00:32:41] Speaker 04:
But the prosecutors got for that act, they complain about that in the complaint.

[00:32:47] Speaker 04:
They complain about... Against the prosecutors.

[00:32:49] Speaker 03:
Yes, they do.

[00:32:50] Speaker 04:
They complain as it relates to... And so the district court granted them absolute prosecutorial immunity for that, for doing that.

[00:32:58] Speaker 03:
Again, I don't believe the complaint alleges that against shot or whisked.

[00:33:03] Speaker 04:
I think if that allegation is made, it's a very long complaint.

[00:33:07] Speaker 04:
I thought it did, but maybe I'm wrong.

[00:33:09] Speaker 01:
But also, even in the motion to dismiss proceedings before the district court, the plaintiffs are raising the argument that prosecutors are not immune from making statements to the press.

[00:33:20] Speaker 01:
So I think that is fairly encompassed within one of the challenged actions that the plaintiffs are raising.

[00:33:27] Speaker 03:
Again, if we're talking about the defamation claim.

[00:33:30] Speaker 01:
No, we're talking in general.

[00:33:34] Speaker 01:
Case law says prosecutors who give public statements to the press are not absolutely immune.

[00:33:42] Speaker 01:
And the district court appears not to have addressed that individual issue on a functional basis, as you say we have to do.

[00:33:50] Speaker 01:
Wasn't that a mistake?

[00:33:51] Speaker 03:
I don't believe so in this case based on the allegations in the complaint as it relates to DPA or prosecutor shot or prosecutor whisked.

[00:34:02] Speaker 03:
I don't believe the complaint had allegations that they specifically provided.

[00:34:07] Speaker 01:
No, but of the spokesperson for the prosecutor's office.

[00:34:10] Speaker 03:
That would, I believe, relate to the defamation claims that appellants brought.

[00:34:16] Speaker 03:
But as it relates to the prosecutor's office itself, then I don't believe that the statements that were made then would have been defamation.

[00:34:27] Speaker 03:
but as it relates to the prosecutor's office itself to answer your question to be very direct no absolute means absolute immunity would not apply to that okay depending on the circumstances though I do believe qualified immunity could apply to show I mean that's and that's and we're at the absolute immunity stage let me ask going back to absolute immunity and claims.

[00:34:47] Speaker 00:
with respect to the prosecutors, discussed with counsel two specific incidents, one related to talking to Kitsap and the other related to the FBI.

[00:35:01] Speaker 00:
And how is it that that conduct is part of the prosecutorial function that would be entitled to absolute immunity?

[00:35:11] Speaker 03:
I believe under the circumstances and again based on the allegations in the complaint as they were made, those circumstances arose as a result of prosecutor's shot involvement in the charging decision of those two cases that are cited in the complaint.

[00:35:27] Speaker 03:
And I believe it's Suspect 1 and Suspect 2 or the Benitez case that we later learned.

[00:35:32] Speaker 03:
I believe the records shows that prosecutor's shot

[00:35:36] Speaker 03:
as the chief felony deputy assigned those cases to him for the charging determination.

[00:35:42] Speaker 03:
The record also... I understand all that.

[00:35:44] Speaker 00:
Let's get to the point.

[00:35:45] Speaker 00:
And that is the talking outside the prosecutor's office and, for example, giving a little tip, if you will, or heads up to the FBI or to Kitsap County.

[00:36:00] Speaker 00:
Are those allegations part of the allegations against the prosecutors

[00:36:06] Speaker 00:
and how would they qualify for absolute immunity?

[00:36:10] Speaker 03:
Again, I don't believe those allegations in the complaint were directed at Schott and Wist as it generally applied to defamation.

[00:36:19] Speaker 03:
As individuals, if you were to consider this,

[00:36:23] Speaker 03:
I mean, I believe we did make this argument generally in our summary judgment motion that other employees of the county, be it prosecutor, be it the sheriff's department, those types of witnesses that would have participated, for example, in the Kitsap County investigation, those witnesses, their involvement would be subject to conditional immunity and or I believe it's.

[00:36:47] Speaker 00:
I'm like totally confused by your answer.

[00:36:49] Speaker 00:
So let me just take it one at a time.

[00:36:51] Speaker 00:
Let's go to the FBI.

[00:36:54] Speaker 00:
Is it within prosecutorial absolute immunity for a case for which there hasn't been yet probable cause to give a tip to the FBI, which is, take a look at this, guys.

[00:37:08] Speaker 03:
If it involved a connection

[00:37:11] Speaker 03:
with the judicial process and in this case I believe the involvement of the FBI came about in looking at the charging decision involving the Benitez case and a question as to whether or not there was actual drugs found.

[00:37:26] Speaker 00:
That doesn't really answer the question of the prosecutor can be a prosecutor and decide to prosecute a case.

[00:37:35] Speaker 00:
One of the difficulties here is these prosecutors also became witnesses in effect.

[00:37:40] Speaker 00:
in different contexts.

[00:37:42] Speaker 00:
That's why we're looking at it separately.

[00:37:45] Speaker 00:
So just so I get your answer right, you're saying because there was this issue with Benitez that one or the other of the prosecutors could have told the FBI to take a look or was it the FBI coming back?

[00:38:01] Speaker 03:
I believe in this case the facts were that DPA's shot contacted those entities.

[00:38:07] Speaker 00:
Okay.

[00:38:07] Speaker 00:
So how is that within prosecutorial immunity?

[00:38:13] Speaker 03:
Again, I believe that arose out of looking at the charging decision of Benitez.

[00:38:18] Speaker 03:
And so therefore, it would have been related to that part of the judicial process.

[00:38:22] Speaker 00:
Well, that doesn't make sense.

[00:38:22] Speaker 00:
The charging decision is I'm going to prosecute or not.

[00:38:26] Speaker 00:
But it doesn't necessarily, it doesn't let you say, well, now that I am or I'm not and I know all this stuff, I can now go, I the prosecutor.

[00:38:36] Speaker 00:
to a different law enforcement agency that's not related to my office, not the Pierce County office, not the Pierce County sheriff.

[00:38:46] Speaker 00:
So you're saying in your view, just because it was part of the charging decision, they can do whatever they want with it?

[00:38:53] Speaker 03:
I'm not saying they could do whatever they want with it, but I believe in this case it was related to making that charging decision.

[00:38:58] Speaker 00:
For example, your brief, I look pretty hard.

[00:39:00] Speaker 00:
I didn't even see a reference to the FBI allegation in your brief.

[00:39:06] Speaker 03:
Again, Your Honor, I believe this came out and I believe it is indicated in the shot material, in the memo, the decline memo that prosecutor shot provided.

[00:39:16] Speaker 00:
No, but the whole issue of whether there's immunity vis-a-vis the FBI, you didn't even address that.

[00:39:24] Speaker 03:
Again, I would have to go back to referring you back to the complaint.

[00:39:29] Speaker 03:
And in the complaint at that time,

[00:39:31] Speaker 03:
I don't believe that there was reference as it relates to DPA Shot or DPA Whist regarding that.

[00:39:37] Speaker 03:
Overall, generally, it may have applied to the prosecutor's office, but I think in that circumstance, no.

[00:39:44] Speaker 01:
Well, the complaint has an allegation that Schott undertook a clandestine external FBI investigation into plaintiffs upon fabricated allegations of criminal corruption that had no basis in fact.

[00:39:57] Speaker 01:
So the complaint is raising the referral to the FBI as a as a challenged action.

[00:40:03] Speaker 03:
And again, I believe as Appellant has argued earlier, it wasn't DPA's shot conducting that investigation.

[00:40:12] Speaker 03:
His actions involved... No, no.

[00:40:13] Speaker 00:
He's like giving a tip-off to the old FBI.

[00:40:16] Speaker 00:
You know what I'm saying is he's going outside of being a prosecutor.

[00:40:20] Speaker 00:
It's what we would normally see with law enforcement.

[00:40:23] Speaker 01:
If the court the gloss about this case is the Supreme Court is very clear that Absolute immunity is handled very narrowly it has to be very intimately tied to the judicial process and so charging decisions Presentation of evidence in a criminal proceeding all those things would apply but then you've got these outer boundaries that don't such as press statements and whether you're speaking to the FBI about potential criminal activity and

[00:40:52] Speaker 01:
or even what I was going to get to is speaking to the Kitsap investigators.

[00:40:58] Speaker 01:
Why is that subject to prosecutorial immunity, to absolute immunity?

[00:41:03] Speaker 03:
And again, I think for purposes of the 12b6 that was before the district court, those allegations, if any, were not as clear in the complaint.

[00:41:13] Speaker 03:
I think that developed, if it did develop, it developed later.

[00:41:17] Speaker 03:
during the course of the remaining portion of the case that focused on the sheriff department and the other appellees.

[00:41:25] Speaker 03:
But with that said, I don't disagree that if actions were taken that were outside the prosecutorial function, then absolute immunity would not apply.

[00:41:35] Speaker 03:
And I believe then we would default to a qualified immunity analysis.

[00:41:41] Speaker 00:
We've talked about the decline memo.

[00:41:43] Speaker 00:
We've talked about the talking to these other two law enforcement departments.

[00:41:48] Speaker 00:
We've touched briefly on the release of the Brady names to the newspaper.

[00:41:58] Speaker 00:
So is that a function of the prosecutor's office?

[00:42:03] Speaker 03:
A function of the

[00:42:05] Speaker 03:
Again, looking at the claims in the case as far as against Shot or Whist.

[00:42:10] Speaker 03:
Right, and that's what I'm talking about now.

[00:42:12] Speaker 03:
I don't believe that the facts show that they released this information.

[00:42:17] Speaker 03:
I do believe the prosecutor, I believe the facts came out that the prosecutors did release that information in response to a request from news media.

[00:42:25] Speaker 03:
And again, our position would be as that information is not confidential or privileged.

[00:42:31] Speaker 03:
But as it relates to shot and whisked, I don't believe that that issue was before the district court in deciding whether or not to apply absolute immunity.

[00:42:40] Speaker 04:
This was done on the complaint, though.

[00:42:42] Speaker 04:
Correct.

[00:42:43] Speaker 04:
Correct.

[00:42:45] Speaker 04:
And in the cause of action, or the claim for relief under 42 SC section 1983, free speech and redress, she just lists the defendant.

[00:42:55] Speaker 04:
The complaint just says the defendants.

[00:43:00] Speaker 04:
She doesn't go through and identify particular conduct.

[00:43:03] Speaker 04:
So I assume it's against the two prosecutors that she's after here.

[00:43:10] Speaker 03:
Again, in our motion to the court on 12b6, we provided a table that identified

[00:43:21] Speaker 03:
the allegations specifically against the prosecutors.

[00:43:24] Speaker 03:
And we cite to that in our appellate brief.

[00:43:29] Speaker 03:
And in those sections specifically, for example, looking at the facts section, the allegations relating to Brady and Pi, the allegation that law enforcement agencies do not hire Brady or Pi officers like plaintiffs.

[00:43:45] Speaker 03:
Again, all of that was directed at those actions related to Brady-Pi.

[00:43:50] Speaker 03:
That type of action or conduct is a traditional function of a prosecutor.

[00:43:54] Speaker 03:
Likewise, as you go through the complaint, and this would again be in the facts section, and this is section five, and you look at facts regarding the Pierce County Prosecuting Attorney's Office investigation, and again it says, Pierce County Prosecutor solicited criticisms.

[00:44:10] Speaker 03:
DPA Schott convened a series of compulsory interviews.

[00:44:14] Speaker 03:
Well, again, that is part of the charging decision.

[00:44:17] Speaker 03:
I believe the RCW that's applicable here, and we cite it in our brief, requires that a prosecutor interview material witnesses.

[00:44:31] Speaker 03:
And in this case, the SIU officers, the arresting officers, those would be witnesses as part of this case.

[00:44:37] Speaker 03:
Likewise, a prosecutor is obligated

[00:44:40] Speaker 03:
to understand or become familiar with the techniques that were used in the criminal investigation, and this would also include the use of confidential informants.

[00:44:51] Speaker 04:
And so again, that... You know, the problem is that the district court just said this is all connected to the court.

[00:44:59] Speaker 04:
They get absolute immunity without going through carefully each of the defendants.

[00:45:07] Speaker 04:
I mean, they all get

[00:45:08] Speaker 04:
absolute immunity.

[00:45:09] Speaker 04:
The district court gave the prosecutors absolute immunity here.

[00:45:18] Speaker 04:
Correct.

[00:45:20] Speaker 04:
And the district court did not go through each individual officer and what they were alleged to have wrongly

[00:45:29] Speaker 03:
And again, I would refer back to the complaint the motion to dismiss here's the complaint right here I agree I agree your honor the complaint is very long and it is very convoluted But again as we attempted to do in our motion to dismiss We laid this out in a table, and we we showed the allegations Well, let me get back to the allegation about

[00:45:54] Speaker 01:
shocked interviewing SIU officers.

[00:46:00] Speaker 01:
To me, I think this one's a closer question in my mind.

[00:46:04] Speaker 01:
Because on the one hand, prosecutors do have a Brady obligation to turn over exculpatory evidence in criminal proceedings.

[00:46:12] Speaker 01:
But on the other hand, the cases also talk about if the prosecutors acts in the place of an investigative officer to see whether a crime was committed, that is not part of the prosecutorial function.

[00:46:24] Speaker 01:
And in my colloquy with your opposing counsel, I asked whether if you had dual motives or dual objectives in doing so, whether that would be absolutely immune, and she said no.

[00:46:36] Speaker 01:
And so I'm wondering how you would characterize this investigation by Shaq to the SIU officers and ask you the same question.

[00:46:44] Speaker 01:
What if you had a couple of different motives?

[00:46:46] Speaker 01:
What then?

[00:46:47] Speaker 03:
I don't think the court ever gets to motive or intent.

[00:46:50] Speaker 03:
I think the court strictly looks at the function.

[00:46:52] Speaker 03:
And here, I believe, as the allegations in the complaint showed, that the function at issue was regarding the termination of Brady and Pi and charging decisions.

[00:47:02] Speaker 03:
And that's what the court focused on and I believe the district court focused on.

[00:47:07] Speaker 03:
So, again, I don't believe that having dual motives, I don't think that changes the analysis.

[00:47:12] Speaker 01:
Do you think this just turns on what the complaint alleged?

[00:47:15] Speaker 01:
Because I think the complaint alleges that Shaq was doing this in order to investigate these officers to see whether a crime was being committed.

[00:47:24] Speaker 01:
In which case, that would fall outside of the prosecutorial function.

[00:47:28] Speaker 03:
The complaint alleges, it makes that allegation that he did this for a wrongful motive or an animus.

[00:47:37] Speaker 03:
Nevertheless, the action that the complaint alleges is prosecutorial function.

[00:47:44] Speaker 03:
He is looking at a charging to decision, and he is also looking at Brady Pye.

[00:47:51] Speaker 03:
And I would say that the case law then... So can I just interrupt you?

[00:47:55] Speaker 01:
So when he was interviewing SIU officers about their methods, that was in connection with whether to charge someone in particular?

[00:48:06] Speaker 01:
Was there a particular case or cases that it was associated with that investigation?

[00:48:12] Speaker 01:
Yes.

[00:48:12] Speaker 03:
And that is... Which ones?

[00:48:14] Speaker 03:
That is the suspect one case that we've made reference to, and that's also

[00:48:18] Speaker 03:
Identified in the complaint and I believe the suspect to case or and or Benitez case And that's what he had assigned himself Those two particular cases that those are also the two cases that are subject of his decline memorandum that he prepared and so that's the actions that he's taken he's doing both because he

[00:48:42] Speaker 03:
stands in the shoes as both.

[00:48:44] Speaker 03:
He is the chief felony deputy who assigned himself the charging review or decision for those two cases, and he was the Pi committee chair, and he was looking into Pi.

[00:48:55] Speaker 03:
So he was performing both those functions at the same time.

[00:48:58] Speaker 03:
And so both of those functions are traditional functions of a prosecutor.

[00:49:02] Speaker 03:
And I would say again that the intent, as it will allege, and I believe the district court again accepted that as true.

[00:49:10] Speaker 03:
considered the 12b6 motion because it was alleged in the complaint, but the analysis or the determination didn't change.

[00:49:17] Speaker 03:
The function was the function and it was the charging decisions and the determination of Pi.

[00:49:22] Speaker 01:
Can I switch your gears to the summary judgment for the officer defendants and how we approach the pickering analysis?

[00:49:31] Speaker 01:
and ask you the same question.

[00:49:34] Speaker 01:
Are we dealing with a more factual or legal inquiry here in terms of whether there was disruption to the department?

[00:49:42] Speaker 01:
And even if Plaintiffs had First Amendment rights, that there was on a balancing analysis an ability for the sheriff to shut down SIU because of the disruption that happened after the press contacts.

[00:49:55] Speaker 03:
I believe it's a little bit of both.

[00:49:58] Speaker 03:
I believe factually that the prosecutor Robnett's decision at that time to not take cases from SIU pending the Kitsap County determination did cause a disruption to the sheriff's department.

[00:50:16] Speaker 03:
And I think that's what

[00:50:17] Speaker 03:
the sheriff department, Sheriff Pasteur, was responding to at that time.

[00:50:21] Speaker 03:
And I think the record shows that under Sheriff Baumkamp, he testified during deposition that, well, once we received this information from the prosecutor's office, we had to make the decision.

[00:50:31] Speaker 03:
If they're not going to take cases, SIU cases, to prosecute, what are we going to do?

[00:50:36] Speaker 03:
Are we going to continue to go out and investigate cases, knowing that there would be no prosecution?

[00:50:44] Speaker 03:
And I believe Baumkamp testified that, well,

[00:50:46] Speaker 03:
We don't want to put our officers in harm's way.

[00:50:49] Speaker 03:
We don't want to take that risk.

[00:50:51] Speaker 03:
And that was part of the decision making in shutting down the SIU that second time.

[00:50:57] Speaker 04:
Can I just get one clarification from you on that, on the shutdown the second time?

[00:51:01] Speaker 04:
Had the officers already responded to the, made their response available to the press before they took that, before the sheriff took that action?

[00:51:12] Speaker 03:
The response to my yes, your honor.

[00:51:15] Speaker 03:
Yes, it was and It was the the list was published The Brady list was put the list had been published prior right officers respond quite as appellants attorney I'm indicated they were asked questions, but they they they Responded to some of the concerns right that's given to the press and the press published

[00:51:39] Speaker 04:
The press published the information.

[00:51:40] Speaker 04:
That response, correct.

[00:51:41] Speaker 04:
I'm sorry, I'm going to stop speaking loudly.

[00:51:43] Speaker 04:
I'm sorry, Your Honor.

[00:51:44] Speaker 04:
That's okay.

[00:51:47] Speaker 03:
And then, what was it, several days later?

[00:51:49] Speaker 03:
I can't recall the exact time frame, but I believe it was fairly close in time to when the article was published that Robb Nett notified Baumkamp that she would no longer work or accept cases from the SIU for prosecution.

[00:52:06] Speaker 04:
But when was the SIU shut down the second time?

[00:52:09] Speaker 03:
I believe it was shut down approximately a week, a few days after that.

[00:52:14] Speaker 04:
It was not immediate.

[00:52:15] Speaker 04:
OK.

[00:52:16] Speaker 04:
When Robinette wrote her letter to the sheriff, I gather that caused some disruption in the sheriff's department?

[00:52:24] Speaker 03:
Well, again, they were put on notice that the prosecutor's office would no longer, at that point in time, prosecute SIU cases pending the Kitsap County investigation.

[00:52:34] Speaker 03:
So yes.

[00:52:35] Speaker 04:
So when the officers answered those questions of the reporters, what do we know about how much further disruption that may have caused?

[00:52:45] Speaker 03:
Within their action, as far as talking to the news media, I don't believe created a disruption within the sheriff's department.

[00:52:54] Speaker 03:
And I think likewise, Sheriff Pastor and Under Sheriff Baumkamp testified at deposition.

[00:53:00] Speaker 03:
They didn't have a problem with the SIU members talking to the press.

[00:53:05] Speaker 03:
Their response in shutting down the SIU was based on Rob Nett's decision not to prosecute cases at that time.

[00:53:13] Speaker 03:
And then I think the district court correctly analyzed that issue as weighing the interest, in this case being the dysfunction or inability at that time for the sheriff's department to investigate or do drug crimes because the prosecutor's office would not prosecute.

[00:53:33] Speaker 04:
So it was because of what the prosecutor did, Robinette?

[00:53:37] Speaker 04:
That's correct.

[00:53:38] Speaker 03:
not so much them the officers going to the press that is correct and i and i believe i did try to make that argument in our brief okay that it wasn't uh... that that pastor in bomb camp did not have an issue with the s i u talking with the press that this related to rob net's decision and that the sheriff ultimately had contractual authority and i believe the authority overall

[00:54:02] Speaker 03:
to shut down the SIU and I believe the District Court recognized that under the Pickering Analysis in weighing the interest of assuming like the District Court that they did have a First Amendment right to talk to the press and that here the interests of the Sheriff's Department and I believe maintaining a relationship, a working relationship with the Prosecutor's Office and trying to figure out what was wrong outweighed the First Amendment interest.

[00:54:28] Speaker 01:
Okay.

[00:54:30] Speaker 03:
Thank you, counsel.

[00:54:31] Speaker 01:
Thank you.

[00:54:31] Speaker 01:
Thank you.

[00:54:32] Speaker 01:
We'll give you three minutes for rebuttal.

[00:54:38] Speaker 02:
Thank you, Your Honors.

[00:54:39] Speaker 02:
In brief, on the publication issue, those facts are at 5.207 to 5.215 of the complaint, and it is somewhat nuanced.

[00:54:49] Speaker 02:
It does allege that the Sheriff's Department ultimately disclosed the names, but the prosecutors built on that in their publications in the media.

[00:54:56] Speaker 02:
And as it turns out, through discovery, we learned more about that relationship between the prosecutor's office advising and disclosing the Brady officer names by names later on, but for purposes of

[00:55:07] Speaker 02:
just a summary dismissal on that fact.

[00:55:11] Speaker 02:
The facts are there that both the sheriff's department and the prosecutor's office were involved.

[00:55:17] Speaker 02:
The interesting ruling from the trial court is that they sort of gave prosecutorial immunity to the sheriff's department for those acts that would be related to Brady, so there's a nexus there.

[00:55:29] Speaker 02:
With regard to the allegation that Brady lists aren't confidential, well, that's true, but there is an overlay

[00:55:36] Speaker 02:
Public disclosure in Washington to protect the identities of these particular officers because of the role that they played that's RCW 4256 237 C there was a legal foundation to withhold these officers names to protect their identities as undercover investigative officers and then context of the publications that were occurring in

[00:56:00] Speaker 02:
about working with confidential informants that was so critical.

[00:56:03] Speaker 02:
I mean, that should have been considered.

[00:56:05] Speaker 02:
And actually, the one person who was directed to give that information to the media by name in deposition was very apologetic about that and felt like he should have given due consideration to the need to be confidential on those facts.

[00:56:20] Speaker 02:
It's important in that chronology when you analyze disruption

[00:56:27] Speaker 02:
that all of the allegations swirling about as to why the prosecutor's office didn't want to work with officers.

[00:56:32] Speaker 02:
They didn't want to work with the officers before they talked to the media.

[00:56:38] Speaker 02:
They were trying to get them discredited and were doing a very good job of discrediting them for things that they hadn't even done.

[00:56:47] Speaker 02:
The sheriff's department put these officers back to work and reestablished the SIU before the Kitsap investigation even was finalized.

[00:56:57] Speaker 02:
There just is no way to say that the fact that Mary Robnett was upset with the statements made to the media, that that in and of itself, that the perspective to view the disruption is from her reaction to it.

[00:57:14] Speaker 02:
She overreacted.

[00:57:14] Speaker 01:
I don't know.

[00:57:15] Speaker 01:
I have a hard time with that.

[00:57:16] Speaker 01:
I mean, whether fair or not, if at the end of the day the prosecuting attorney says we are not going to accept cases from this investigative unit, I can't think of something more disruptive than that.

[00:57:26] Speaker 01:
for the sheriff to have to deal with.

[00:57:29] Speaker 01:
Setting aside good policy, bad policy, fair or not, that seems just pretty clearly disruptive in my mind.

[00:57:37] Speaker 02:
what why would the investigation because the unit ceases to function in order to prosecute cases that's the whole point there is an independent discretionary authority on law enforcement to fight crime where it's not necessarily correlated with an individual prosecution in each case and a lot of the work

[00:57:57] Speaker 02:
on narcotics investigations don't result in prosecutions.

[00:58:00] Speaker 02:
They are confidential informant cases where you seize the drug, seize the property, and you put a hurt on the business operations.

[00:58:10] Speaker 02:
Now, if you're still saying, well, that's within the discretion of the sheriff to decide, OK, shut down the unit.

[00:58:16] Speaker 02:
We're going to put a hold on these particular investigators doing that work.

[00:58:23] Speaker 02:
Then why shun them?

[00:58:25] Speaker 02:
why make them out and publicly say to the media that we have to do this because this is a problem their behavior is a problem and we're going to wait now even though i said it back up we're going to wait now for the kids up investigation come out so that we can justify that are shunning them and giving the meaningless work assignments and denying them overtime was justified so if you just look at the disruption factor from

[00:58:52] Speaker 02:
The sheriff had the right to shut down the unit that's too narrow of an analysis to the disruption factor It needs to be more than the one last thing that's important timing wise if you look at

[00:59:07] Speaker 02:
There was a representation that the Perez and Benitez analysis captured the work that Schott was doing in his investigative role.

[00:59:18] Speaker 02:
That's not true and it's established by the timeline.

[00:59:22] Speaker 02:
Schott's letter to bomb camp that was the only pie for six months came April 6, 2020.

[00:59:30] Speaker 02:
He was conducting his interviews prior to that.

[00:59:35] Speaker 02:
And as a result, he generates a letter listing seven cases that he wants to be critical of the SIU officers indiscriminately, as if all these SIU officers were involved in all these cases.

[00:59:49] Speaker 02:
They weren't.

[00:59:51] Speaker 02:
There is absolutely nothing that's founded as to any of those cases.

[00:59:57] Speaker 02:
There is very nominal discipline that was imposed in the Benitez slash Perez matters involving only two of the SIU officers.

[01:00:06] Speaker 02:
And there were one oral admonishment, hey, try harder to communicate with command when you're doing these things.

[01:00:14] Speaker 02:
And when the command that's not communicating with her for political reasons,

[01:00:17] Speaker 02:
And Darby was advised to make sure that when you're working, somebody who may be an informant on these street contracts rather than doing them orally, do them in a written format.

[01:00:33] Speaker 04:
Can I ask one last question?

[01:00:34] Speaker 04:
I want to just clarify one last point with you.

[01:00:43] Speaker 04:
Brady List was released to the press.

[01:00:46] Speaker 04:
Had there been anything in the press about claims or accusations that there was some wrongdoing going on in the SIU?

[01:00:55] Speaker 02:
Right.

[01:00:55] Speaker 02:
I believe that it was about a two-month time frame when they learned that there was a shutdown and they weren't immediately named.

[01:01:02] Speaker 02:
It's when they were named and their names put out there that it became a real concern for the SIU officers and their safety and the safety of the public.

[01:01:09] Speaker 04:
Was there anything in the public press?

[01:01:12] Speaker 02:
Yes.

[01:01:13] Speaker 04:
When the SI unit was shut down the first time.

[01:01:15] Speaker 04:
Yes.

[01:01:16] Speaker 04:
People ask questions.

[01:01:17] Speaker 04:
Yes.

[01:01:18] Speaker 04:
And actually, I think the prosecutor... And that was... The officers had not gone to the press yet.

[01:01:23] Speaker 02:
Correct.

[01:01:24] Speaker 04:
So that was... That was a result of the communications between the prosecutor and the sheriff.

[01:01:31] Speaker 02:
Yeah, as the explanations grew as to what was going on and then... Really, I mean, what motivated the...

[01:01:39] Speaker 02:
Clients more than anything is that now our names are out there.

[01:01:42] Speaker 04:
We write okay, all right Thank you.

[01:01:44] Speaker 04:
Thank you counsel.

[01:01:46] Speaker 01:
Thank you both very helpful arguments the matter will stand submitted and court is adjourned