[00:00:00] Speaker 00:
Our final argument this morning is Alexander against Cross.

[00:00:07] Speaker 00:
Mr. Rutman.

[00:00:08] Speaker 01:
Yes, thank you.

[00:00:09] Speaker 01:
Good morning, Your Honor.

[00:00:10] Speaker 01:
May it please the Court, Keith Rutman, on behalf of plaintiff and appellant Ananjan Alexander.

[00:00:15] Speaker 01:
I'd like to reserve three minutes of rebuttal time, if I could.

[00:00:19] Speaker 00:
Just keep an eye on the clock.

[00:00:21] Speaker 01:
Yes, sir.

[00:00:23] Speaker 01:
There's an old maxim that there are three types of arguments, the one you prepare, the one you deliver, and the one you think of on the way back to the office.

[00:00:31] Speaker 01:
In this case, I prepared two arguments.

[00:00:33] Speaker 01:
One, a policy-based argument on qualified immunity, which I clearly understand this court has no authority to overturn that doctrine, and one, a factual-based one based on the case law.

[00:00:46] Speaker 02:
And I hope you're going to do number two.

[00:00:47] Speaker 01:
I hope so.

[00:00:48] Speaker 01:
I was a little anxious.

[00:00:50] Speaker 02:
I'm very sympathetic to you on number one, but our writ is limited.

[00:00:55] Speaker 01:
Yes, sir.

[00:00:56] Speaker 01:
And I understand that clearly.

[00:00:57] Speaker 01:
Now, not to sound coy, but the legal standard under prong two is itself clearly established.

[00:01:08] Speaker 01:
And the Ninth Circuit en banc just recently last

[00:01:12] Speaker 01:
We – or this week, actually, in the state of Hernandez versus city of Los Angeles, re-quoted that standard in a shoot – Fourth Amendment shooting case.

[00:01:22] Speaker 01:
But they pointed out something that I didn't really address in any of my briefs that I think hits home to me, is that specificity in Prong 2 is especially important in the Fourth Amendment context, where we typically have officers in the field operating under extremely high-pressured, quickly evolving circumstances.

[00:01:49] Speaker 01:
Whereas in this case, there was extensive time for deliberation and decision-making on the part of the state officials.

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And under those circumstances, the more general application of law would apply in the prong to context.

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And that's what I'd like to focus on today.

[00:02:09] Speaker 02:
Could you – I take that point, and I want to come back to it.

[00:02:15] Speaker 02:
If I were doing what we do in the Fourth Amendment context and looking for a case, your best case, closest on the facts, because as you know, and the reason I'm frustrated on your first argument is the Supreme Court routinely bats us about the head and shoulders on whether we're operating at too high a level of generality, what's your best case?

[00:02:38] Speaker 01:
Yes, Your Honor, that's the very question that the district judge asked me as well.

[00:02:42] Speaker 01:
So I'm going to rely upon the same cases I did there.

[00:02:46] Speaker 01:
Brown versus Buds was a Seventh Circuit case from 2005 that I cite in my opening brief.

[00:02:53] Speaker 02:
That leads to a question, because the Seventh Circuit cases are your best cases, but they're Seventh Circuit cases.

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And I think we can rely on cases from other circuits to the extent that they represent a national consensus.

[00:03:08] Speaker 02:
But can we really rely on the Seventh Circuit cases in this case?

[00:03:12] Speaker 01:
I think you can, Your Honor, because

[00:03:16] Speaker 01:
The Ninth Circuit cases that I also cite in my brief touch upon the same areas.

[00:03:22] Speaker 02:
Get to those and tell me how the domestic cases help you.

[00:03:26] Speaker 01:
If I might, Your Honor.

[00:03:39] Speaker 01:
Well, let me approach it this way.

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In 2024,

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The Ninth Circuit, the, let me start over, I'm sorry.

[00:03:51] Speaker 01:
Robinson versus Pronte is cited on page 25 of my brief, and that is the best Ninth Circuit case I had.

[00:03:58] Speaker 02:
And decided when?

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That was decided in 2001.

[00:04:03] Speaker 01:
So the reason I rely upon a lot of out-of-circuit cases is because I try and try as I might.

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I couldn't find a specific 9th Circuit case that was as close to this one.

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And I think the reason is,

[00:04:18] Speaker 01:
stated ably by my opponents and the officers in their declarations, there are thousands of transfers of prisoners day in and day out throughout the state of California, which I believe has one of the largest prison populations in the country.

[00:04:36] Speaker 01:
All of these individuals bring lawsuits involving injuries that they suffer.

[00:04:41] Speaker 01:
A lot of them sort of peter out at the lower stages, either at the administrative level in the prisons or at the district court levels.

[00:04:51] Speaker 01:
So it's hard to find a specific case on point, but we're talking about

[00:04:57] Speaker 01:
excessive risks of harm placed in, and that was an integrated yard where racial animus was at issue here, but we're still talking about white supremacists and an Indian American plaintiff who alleged that he was assaulted viciously

[00:05:16] Speaker 01:
and sent to the hospital with a fractured orbital socket because both of his race and his... Can I ask you, you seem to have switched theories somewhere along the way.

[00:05:29] Speaker 02:
Your client was attacked because of the nature of his crimes and because he was attacked because he was on racial grounds.

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Are you asserting both?

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We do assert both.

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The majority of his claim was that he was a sex offender.

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That was the gist of his claim.

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That's what I take the appeal to be directed at.

[00:05:54] Speaker 01:
Yes, sir.

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And it's on that grounds that I want to ask you about the facts of this case, because I think they matter for qualified immunity.

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For better or worse, the prison officials that you sued went through a process.

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They evaluated his inmate's situation, whatever progress he'd made or not made.

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Four people did it, and they ended up concluding that he was ready to be transferred to a different level of security.

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I can't find a case that involves that kind of thoughtful

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albeit perhaps negligent process in this case.

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Do you have one that sort of helps me along those lines?

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Most of the cases just involve a transfer.

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And nobody paid any attention to the fact that this guy might create a danger.

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They knew about his history.

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They knew there was a potential.

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But they made a decision that he was no longer a danger.

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Turns out they blew it.

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But is blowing it enough to get them out of qualified immunity?

[00:07:02] Speaker 01:
Well, that is quintessentially, I would say, a prong one question which I've already prevailed on before this court.

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The issue then becomes is... Should they have known that in 2018?

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Should they have known that in 2018?

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I would say yes because the body of law throughout the United States, and that's why I cite a lot of other cases from other districts,

[00:07:24] Speaker 01:
puts people, including the Supreme Court, puts these officials on notices that they have to be sensitive to the potential for danger that other inmates may suffer.

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But they were in this case.

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They understood that he posed a danger to others, they understood that he had a history, and they looked at it and they concluded, incorrectly, that he'd grown out of it.

[00:07:47] Speaker 01:
That's only half the question, though.

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There are also

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we assert, obligated to look at the sensitivity of people like Mr. Alexander to be preyed upon by these other inmates.

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A lot of inmates, and we submitted expert testimony on this from a former deputy warden, that a lot of inmates play the long game and they look, they behave for a period of time.

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And I understand this is a question of fact and credibility for the fact finder.

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they play the long game to get transferred to prisons where they have more opportunities for better living conditions because they don't want to spend time in the hole up at Pelican Bay or in higher security prisons.

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So they'll behave for a time but clearly as the court said somebody blew it here because this gentleman wasn't there for very long before he viciously assaulted my client.

[00:08:42] Speaker 01:
But looking at what Mr.

[00:08:47] Speaker 01:
Sorry, I'm getting bad with names as I get older.

[00:08:52] Speaker 01:
Mr. Rizzo, excuse me, Mr. Rizzo was only half of the obligation of the defendants.

[00:09:00] Speaker 01:
They were also obligated to look and see if there's anyone like Mr. Alexander who might suffer from Mr. Rizzo, and they actually took some steps to do that.

[00:09:09] Speaker 01:
The problem we had here was that Officer Lerocco's

[00:09:14] Speaker 01:
Kron that he testified under oath he put in Mr. Alexander's file that described the danger he suffered from people like Mr. Rizzo and Mr. Rizzo's son-in-law and the other individual who attempted to extort Mr. Alexander that was also a member of a white supremacist gang went missing.

[00:09:35] Speaker 01:
There's clearly something amiss with the record keeping, but we assert that it's clearly established just from the body of case law that these defendants are obligated not just to check out and see if Rizzo's

[00:09:52] Speaker 01:
suitable for transfer, but where they're sending Mr. Rizzo to, is there anyone there who has a particular sensitivity to Mr. Rizzo's predilections that Mr. Rizzo, when he gets there, may be triggered by?

[00:10:09] Speaker 02:
Even if they've concluded that he no longer has those predilections.

[00:10:13] Speaker 01:
I'm sorry.

[00:10:14] Speaker 02:
Even if they've concluded that he no longer has those predilections.

[00:10:17] Speaker 02:
See, that's what concerns me at the case.

[00:10:19] Speaker 02:
They went through a process

[00:10:23] Speaker 02:
Plainly flawed, because the result says so.

[00:10:27] Speaker 02:
But they went through a process and said, yeah, this is not a guy we would ordinarily transfer.

[00:10:33] Speaker 02:
But we've now looked at his record, and he's reformed.

[00:10:36] Speaker 02:
He's better.

[00:10:37] Speaker 02:
He's OK.

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And so he no longer poses a danger to others that he might have 10 years ago.

[00:10:44] Speaker 02:
And that's what troubles me about the qualifying union.

[00:10:49] Speaker 01:
I am certainly in favor of rehabilitation of inmates, and that's a laudable goal.

[00:10:55] Speaker 01:
And we do want to do that.

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We want to rehabilitate people to the best of our ability.

[00:11:00] Speaker 01:
But the expert testimony we submitted suggested that Mr. Rizzo was not suitable for a transfer.

[00:11:07] Speaker 01:
because of his point score, which was an objective measure.

[00:11:11] Speaker 01:
Sure, he wrote for the prison newspaper and he did all these other things, but again, I think that's a question of fact that a fact finder would have to decide whether it makes that reasonable to make that transfer.

[00:11:23] Speaker 02:
Well, not when we're looking at clear literacy.

[00:11:25] Speaker 02:
Now we're back.

[00:11:26] Speaker 02:
I understand this is a difficult case because we already know that there was an Eighth Amendment violation.

[00:11:31] Speaker 02:
But we're trying to figure out whether or not in 2018 these officials could have known they were violating the Eighth Amendment.

[00:11:38] Speaker 02:
And so I'm still back to the notion that they said, okay, we don't want to just transfer sky-willy-nilly.

[00:11:45] Speaker 02:
We'll go through a process.

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We'll look at everything.

[00:11:48] Speaker 02:
They look at everything and say, we think he's not a danger anymore, so we're not going to transfer him.

[00:11:53] Speaker 02:
And I'm trying to find a case that suggests to me that they should have known in 2018 that what they were doing violated the Eighth Amendment.

[00:12:00] Speaker 01:
Well, I think, again, I think that's the clearly established body of law.

[00:12:05] Speaker 01:
There's all the case law.

[00:12:07] Speaker 01:
I mean, prison officials are trained and they learn the case law, unlike the officers out on the field.

[00:12:15] Speaker 01:
So they have the time for deliberation.

[00:12:17] Speaker 01:
But I think it's just as a general principle, they understand that not only do they need to look at the offender that they're transferring to see if does he pose a risk to anyone where he's going, but they also need to look at where he's going.

[00:12:35] Speaker 01:
Is anyone there at risk from him?

[00:12:38] Speaker 00:
Right.

[00:12:38] Speaker 00:
And so in Robinson, which you identified as, you know,

[00:12:42] Speaker 00:
The best case here, I mean, they had had repeated outbreaks of violence on the basis of race.

[00:12:50] Speaker 00:
The guards sort of joked to the plaintiff about the fact that they were putting him in with people of a different race.

[00:12:58] Speaker 00:
And we described, the court there described that as like a gladiator-like scenario.

[00:13:06] Speaker 00:
We don't have anything like that here, do we?

[00:13:08] Speaker 01:
Well, what we have is an individual, as I touched upon earlier, who was the subject of an extortion-type shakedown from a white supremacist who was transferred out, and there were all the issues relating to whether Mr. Alexander somehow tried to retaliate against him, so there was a well

[00:13:31] Speaker 01:
body right up of documents some of which went missing apparently that related to mister alexander alexander sensitivities so i i don't think it's it's in a vacuum where these decisions were being made uh... you know it's not a this is what i think you're in your bottle times if you want to know i don't know i'll i'll reserve i'd like to reserve my rebuttal time if i might thank you very much just have a moment

[00:14:04] Speaker 01:
Made that mistake the last time about the yellow light.

[00:14:13] Speaker 00:
Thank you.

[00:14:14] Speaker 00:
Ms.

[00:14:14] Speaker 00:
Ellenbach.

[00:14:20] Speaker 04:
Thank you, Your Honors.

[00:14:21] Speaker 04:
May it please the court, Deputy Attorney General Martha Ellenbach for the defendant's appellees.

[00:14:25] Speaker 04:
This court should find

[00:14:27] Speaker 04:
that the defendants are entitled to qualified immunity because there's no clearly established law that put them on notice that endorsing the transfer of inmate Rizzo from high desert sensitive needs yard to a similar sensitive needs yard

[00:14:42] Speaker 04:
at Alexander's institution was clearly unlawful.

[00:14:46] Speaker 04:
And the specific facts of this case really show why there was no established law on point and why the defendants would have understood that what they were doing was not clearly unconstitutional.

[00:14:59] Speaker 04:
Rizzo had renounced his membership with a white supremacist group years before this.

[00:15:05] Speaker 04:
in 2008.

[00:15:08] Speaker 02:
I'm having difficulty on this issue.

[00:15:11] Speaker 02:
Is this a case about a racially motivated attack or an attack because of the nature of the crime that Mr. Alexander

[00:15:21] Speaker 04:
I think Mr. Alexander has put forth both theories.

[00:15:25] Speaker 04:
There's no actual evidence in the record about why this attack took place, but even assuming that it was maybe a combination of those characteristics, the fact remains that Mr. Rizzo was housed with individuals with similar characteristics on that sensitive needs yard.

[00:15:41] Speaker 04:
at his institution at High Desert where he had lived peacefully with them.

[00:15:46] Speaker 04:
And certainly the behavioral override regulations that defendants applied, they applied those correctly.

[00:15:52] Speaker 04:
There's no dispute in the record about that.

[00:15:55] Speaker 02:
Well, but this is a strange case because the previous panels already found that your clients violated, or there's a fact issue about whether your clients violated the Eighth Amendment.

[00:16:05] Speaker 02:
So sometimes when we do this, we sort of lapse over and say, well, what they did was reasonable, and they went through all the processes.

[00:16:13] Speaker 02:
But we already know there's a fact question about whether there was an Eighth Amendment violation.

[00:16:17] Speaker 02:
So the real question is not whether they followed the procedures or did everything else, but whether there's a case out there that would have put them on notice that what they did in 2018 violated the Eighth Amendment.

[00:16:31] Speaker 04:
I want to make two points in response to that, Your Honor.

[00:16:33] Speaker 04:
The first is that I think

[00:16:35] Speaker 04:
that second piece about whether or not there is a case that would have put them on notice, the fact that they followed policy is certainly relevant to that piece.

[00:16:44] Speaker 04:
And so what we do in that second prong is we do look at the undisputed facts.

[00:16:48] Speaker 04:
We look at if there is a dispute about something, certainly this court has to take those facts in the light most favorable to the plaintiff.

[00:16:57] Speaker 04:
There's no dispute about certain key facts in the record.

[00:17:00] Speaker 04:
For example, there's no dispute about the fact that the defendants had this particular limited knowledge about Mr. Rizzo's history, that they were looking at this, that they did apply the regulations when they were evaluating whether or not he was

[00:17:18] Speaker 04:
appropriate for a behavioral override and nothing in the record disputed that they were properly applying the regulations.

[00:17:25] Speaker 04:
My friend on the other side referred to a declaration from an expert.

[00:17:30] Speaker 04:
The expert did not dispute that they followed the regulations properly.

[00:17:34] Speaker 04:
But in any event, so the question for the second prong of qualified immunity is, accepting those undisputed facts as true, is there a case that would have given those defendants notice that what they did was unlawful?

[00:17:48] Speaker 04:
And the cases that the plaintiff cited simply wouldn't have put the defendants on notice.

[00:17:54] Speaker 04:
All of those cases involved a combination of a particular threat that was communicated recently in time to the defendants, and we don't have that here.

[00:18:04] Speaker 04:
And there's one piece of that that I want to clarify for the court.

[00:18:07] Speaker 04:
Council referred to a declaration of officer Larocco and some sort of conspiracy among individuals at Donovan.

[00:18:16] Speaker 04:
to allegedly attack Alexander.

[00:18:19] Speaker 04:
Even assuming that that's true, there's no dispute that the defendants in this case had no knowledge of anything about that.

[00:18:25] Speaker 04:
That was not in Mr. Rizzo's file.

[00:18:28] Speaker 04:
There's no facts that they looked at that would have made them aware of any sort of conspiracy or particularized threat.

[00:18:36] Speaker 04:
in that sense, and so that's really the difference between this case and a case like Howard, where the plaintiff didn't necessarily know who would have attacked him, but he was telling the defendants, hey, I am at risk from this particular prison gang.

[00:18:50] Speaker 04:
That's not something that happened here.

[00:18:51] Speaker 04:
Here, the defendants were simply evaluating Rizzo for a transfer, and so they're looking at his particular characteristics to determine whether he can transfer to this other institution.

[00:19:01] Speaker 02:
And if you look at the briefing... One day on that score, the district court

[00:19:06] Speaker 02:
in finding qualified immunity, said there's no evidence that the defendants were aware of Alexander or his specific vulnerability.

[00:19:20] Speaker 02:
Doesn't the former case from the Supreme Court say that's irrelevant?

[00:19:24] Speaker 02:
If you know there are people in the population that might be vulnerable to attack by somebody you send in, you don't have to have identified this specific

[00:19:34] Speaker 02:
plaintiff has somebody vulnerable to attack to you.

[00:19:37] Speaker 04:
Well, I think that in some instances, not necessarily.

[00:19:42] Speaker 04:
For example, in Howard, they knew that this particular plaintiff was vulnerable to attack, but they didn't know who precisely was going to attack him, and that's not necessarily dispositive.

[00:19:52] Speaker 04:
But you need some sort of evidence, or all of these cases really relied on evidence of a particular threat.

[00:19:58] Speaker 04:
There's no case where a court has found that this sort of remote incident of potential violence

[00:20:05] Speaker 04:
that a defendant is simply reviewing as part of an inmate's kind of holistic characteristics.

[00:20:12] Speaker 02:
Let me change the facts on you.

[00:20:16] Speaker 02:
Let's assume the defendant officials just said, I want to transfer this guy because we're overcrowded here and we want to send him over there.

[00:20:26] Speaker 02:
We know he has a propensity to attack child molesters and stab them in the face.

[00:20:31] Speaker 02:
We're aware of that.

[00:20:32] Speaker 02:
We're going to transfer him anyway.

[00:20:34] Speaker 02:
And he did what he did.

[00:20:36] Speaker 02:
Would there be an 8th Amendment claim?

[00:20:38] Speaker 04:
Not necessarily, Your Honor.

[00:20:39] Speaker 04:
I think they need to look at, well, did they know that the particular prison they were transferring him to was not dangerous?

[00:20:46] Speaker 02:
Had child molesters in it.

[00:20:48] Speaker 04:
Or if it would pose a danger, like maybe simply because he's housed with other child molesters.

[00:20:53] Speaker 02:
See, I think then it gets very close to these previous cases that say you are acting with deliberate indifference when you put a dangerous person

[00:21:01] Speaker 02:
in close proximity to people that you should know would be likely victims.

[00:21:07] Speaker 04:
Well, I think that line of argument is really calling into question the Department of Corrections' entire sensitive needs yard set up here, which is not something the defendants... No, and I ask you to put that aside.

[00:21:18] Speaker 02:
See, that's my problem.

[00:21:19] Speaker 02:
I understand in this case

[00:21:21] Speaker 02:
They went through all kinds of procedures and they had all kinds of rules and regs.

[00:21:25] Speaker 04:
Well, and also the sensitive needs yards all housed sex offenders.

[00:21:29] Speaker 04:
Rizzo was housed with sex offenders before his transfer.

[00:21:32] Speaker 04:
So... And he stabbed one of them in the face.

[00:21:36] Speaker 04:
I believe that occurred in 2003.

[00:21:38] Speaker 04:
Yes, I understand.

[00:21:38] Speaker 04:
Many years before.

[00:21:39] Speaker 04:
I'm not... Yeah, I don't know the details of that.

[00:21:42] Speaker 04:
But the fact of the matter remains, the sensitive needs yards were designed to house individuals with particular security concerns and the idea is

[00:21:51] Speaker 04:
Gang dropouts, sex offenders, all of these individuals have concerns that would have prevented them from being housed on a general population yard.

[00:22:00] Speaker 04:
But the defendants in this case, they didn't have the ability to change Rizzo's housing on a sensitive needs yard.

[00:22:07] Speaker 04:
He was going to be housed there because he had dropped out of a gang, and that's simply the way that

[00:22:12] Speaker 04:
the prison setup worked that these particular people were housed as a group.

[00:22:17] Speaker 04:
So to the extent that this court, I think it would be really problematic to find the defendants in this case liable based on something that they couldn't have changed.

[00:22:27] Speaker 04:
And similarly, the behavioral override regulations are designed to guide prison officials in determining whether or not a prisoner is appropriate for that type of transfer

[00:22:40] Speaker 04:
to an institution where he might have those additional rehabilitative opportunities.

[00:22:46] Speaker 04:
And there's a motivation for that inmate, if he wants to participate in those opportunities, to remain discipline free once he's transferred, because then he's able to stay at that facility.

[00:22:57] Speaker 04:
So certainly that also, again,

[00:23:00] Speaker 04:
to say that it was clearly unconstitutional when there was no case that would have given the defendants any sort of notice that these regulations were clearly unconstitutional.

[00:23:11] Speaker 04:
I mean, this is, these are regulations that CDC had had an effect and I believe still has a version of an effect today that when,

[00:23:20] Speaker 04:
when Section 3375.2 authorizes behavioral overrides when officials determine that that inmate's behavioral record indicates they could successfully place... Now you're... I've had this difficulty with this case from the beginning because you're really now lapsing back into whether there was an Eighth Amendment violation under the facts of this case.

[00:23:42] Speaker 02:
And what the previous panel told us that it taking the facts in the light most favorable to the plaintiff, there was.

[00:23:50] Speaker 02:
And so I understand that, you know, they followed the regs and did everything else, but we start out with the presumption in this case that he's created a fact issue about whether there was an Eighth Amendment violation.

[00:24:02] Speaker 02:
So the only issue for us, I think, is whether or not your clients should have known that in 2018.

[00:24:09] Speaker 02:
Not whether or not following the regs is a good thing or a bad thing or whether or not

[00:24:15] Speaker 02:
What its effect on the prison system in general we're really focused on a very narrow issue and I had the same difficulty in analyzing this case because they kept going back and saying well They followed the regs that really violate the eighth amendment But the panel told us if the facts are if taken into light most favorable to hit to them it did So go back to the case law for me

[00:24:36] Speaker 04:
I think it is, first of all, briefly, it is relevant to that second prompt question because there does need to be a case that would have put them on notice that this particular situation was unconstitutional.

[00:24:47] Speaker 03:
If there was a case that said, you know, defendants followed the regulations but, you know, unreasonably determined the amount of risk, having gone through the regulatory, you know,

[00:25:02] Speaker 03:
process that they were, all the things they were supposed to, but their ultimate determination was unreasonable.

[00:25:08] Speaker 03:
They disregarded a substantial risk and approved the transfer anyway.

[00:25:14] Speaker 03:
I think that's what the panel is saying a reasonable jury could find in this case.

[00:25:18] Speaker 03:
What do I say a case had decided that?

[00:25:21] Speaker 03:
Then would it be clearly established in this case that following the regulations, the defendant can still

[00:25:32] Speaker 03:
effectively end up disregarding a substantial risk.

[00:25:36] Speaker 04:
I think more broadly, Your Honor, yes, if there's a case with certain similar facts that are similar enough.

[00:25:42] Speaker 03:
So you're saying that's what's missing here is that even having sort of done what we were supposed to do, right, but we made a terrible mistake in our calculation of the risk, then that would be enough, you think?

[00:25:59] Speaker 04:
Well, qualified immunity does protect those reasonable but mistaken, ultimately mistaken judgments.

[00:26:04] Speaker 04:
And it turns out six months later that there was a mistake.

[00:26:08] Speaker 04:
But it's also, you know, again, the fact that this is reasonable, there needs to have been a case on point.

[00:26:15] Speaker 03:
I guess I hear what you're saying is the facts that distinguish this from other cases where we've said there's a violation when you disregard a substantial risk is that here they were following

[00:26:29] Speaker 03:
They did engage in a careful process of review in order to calculate that risk.

[00:26:35] Speaker 03:
And there might be a case in which their calculations were so grossly reckless, you know, like even having gone through the process that a jury could still find a violation, but you're saying we weren't on notice that having followed the procedures.

[00:26:49] Speaker 03:
we could be committing a violation.

[00:26:51] Speaker 03:
Is that a fair characterization of your argument?

[00:26:54] Speaker 04:
That's part of it, yes, your honor, is that they did take those steps to minimize that risk by applying these behavioral override regulations and looking at, there's a memorandum in the record that gives particular exclusionary criteria, says this type of inmate with this type of disciplinary history is not eligible and they did apply that as well.

[00:27:15] Speaker 04:
Mr. Rizzo, for example, he didn't have any discipline in the past year which would have

[00:27:19] Speaker 04:
could have excluded him from behavioral overwrite consideration.

[00:27:23] Speaker 04:
And then also there's that second piece of there's no case on these unique facts where the incident of violence, particularly in 2003, is really remote where a court found that this type of allowing an inmate to be on a particular yard was unconstitutional.

[00:27:44] Speaker 04:
In Howard, in Brown, in Robinson, those are all cases where there was a risk that was recent in time that was communicated to the defendants.

[00:27:52] Speaker 04:
There was particular threats.

[00:27:55] Speaker 04:
In Robinson, the defendants knew about that gladiator-like scenario, as Your Honor had pointed out.

[00:28:01] Speaker 04:
So the risk there is significantly different both in time.

[00:28:06] Speaker 02:
What do we do with the 2015 incident?

[00:28:10] Speaker 04:
The 2015 incident again was remote and that wouldn't have excluded him from behavioral override.

[00:28:16] Speaker 04:
I believe that that incident was where Mr. Rizzo and his roommate were found with a knife and there was some evidence that he may have, him or his roommate might have intended to do something with that.

[00:28:29] Speaker 03:
I mean, I think this is why the prior panel said some of this would be for a jury to decide.

[00:28:35] Speaker 03:
That's right, Your Honor.

[00:28:36] Speaker 04:
But those facts are undisputed, and that's why, again, taking the undisputed facts about what defendants knew, which is that they didn't know anything about a conspiracy or anything more than

[00:28:47] Speaker 04:
Rizzo's two, these two particular incidents, the question for this court is whether or not that would have been enough to put them on notice that this transfer to another facility where there was not necessarily a reason to believe that the transfer would pose a danger to anybody was clearly unconstitutional.

[00:29:07] Speaker 04:
I mean certainly this court found that there's a fact question that a jury could find.

[00:29:12] Speaker 04:
The risk was great.

[00:29:15] Speaker 04:
But there's also significant evidence that goes the opposite way and that's really the estate of Ford case as well and that's why we believe that's the most

[00:29:22] Speaker 04:
important case to look at here is it is one of those difficult situations and certainly housing and transfers present security concerns but there are also countervailing concerns that prisoner prison officials need to look at about creating those opportunities to read for rehabilitation creating those opportunities for those people who have successfully housed peacefully for a number of years and so this court should evaluate to take that into account as well

[00:29:51] Speaker 04:
And that's an important reason why, an important part of the things that the defendants in this case were considering.

[00:29:57] Speaker 04:
And that's why there needed to be a particular case on point.

[00:30:00] Speaker 04:
This was not a case where there's a clear or obvious constitutional violation.

[00:30:05] Speaker 04:
And looking at the cases, certainly Mr. Alexander hasn't provided any case where individuals who made a transfer decision, anything like this one, were found to have violated the law.

[00:30:18] Speaker 00:
Thank you.

[00:30:18] Speaker 00:
Ms.

[00:30:18] Speaker 00:
Allen-Bach?

[00:30:19] Speaker 04:
Thank you, Your Honors.

[00:30:20] Speaker 01:
uh... strutman rebuttal very brief i think judge sung pointed into a question asking is about to frame the argument pointed out the best reason why this court should reverse

[00:30:36] Speaker 01:
These defendants did know of their duty to take care that they not place any individuals at risk by transferring Mr. Rizzo or any other

[00:30:51] Speaker 01:
prisoner for that matter and that's why they went through all the steps that they did but a jury as we know from the prior panel could determine that that was an unreasonable risk this is not a situation where they just weren't guided by any principle

[00:31:08] Speaker 01:
In making the decisions that they did and I think that's what the prong to stands for Isn't that the line of reasoning that's rejected and saucy against cats and then in?

[00:31:18] Speaker 00:
As applied to this eighth amendment context by us in a state again a state afford that Just because you know

[00:31:25] Speaker 00:
the general principle that you can't be deliberately indifferent.

[00:31:29] Speaker 00:
That doesn't mean that you're on notice that your particular conduct will be found to be a constitutional violation, right?

[00:31:35] Speaker 01:
Well, I think the state of Lopez versus city of Los Angeles just addressed that earlier this week and they said that you don't have to have

[00:31:45] Speaker 03:
You don't have to drill down on a specific case and I mean there's there's I mean That's the crux of the problem is how far do you have to drill down?

[00:31:53] Speaker 03:
but I think the problem I have here to be honest with you is that none of the cases that are cited for clearly establishing a law involve a

[00:32:06] Speaker 03:
the mitigating factors, I would say here, of having engaged in the process of attempting to evaluate risk before the transfer and evidence of, I think,

[00:32:23] Speaker 03:
looking at the evidence in the light most favorable to your client, although evidence of risk also some evidence suggesting the risk had dissipated, right?

[00:32:33] Speaker 03:
And so there's, you know, that is

[00:32:37] Speaker 03:
Assuming that is the appropriate level of factual detail or at a minimum, you know, having gone through a process of attempting to objectively evaluate the risk and having multiple people essentially reach the same conclusion, albeit, you know, there's a possibility a jury would say they were all terribly wrong, right?

[00:32:55] Speaker 03:
You know, there's that they were on notice that having gone through at least the procedures they were supposed to go through,

[00:33:02] Speaker 03:
they could still be committing a terrible violation.

[00:33:05] Speaker 01:
I think that's what happened way back when when a state of Ford suggested that prior Ninth Circuit case laws I addressed in my reply brief no longer holds validity because of Saucer.

[00:33:18] Speaker 01:
They used to say that when there's a clear Eighth Amendment violation you don't have to get to prom 2 and then the court of the

[00:33:26] Speaker 01:
another panel in this court came out and said, well, that's been undermined by Saucier, and you do have to address both, or you can get to do them in either order.

[00:33:36] Speaker 01:
And that, I think, poses the very problem we have, is that there are so many prisoner transfers and so many different possible calculations that it would be impossible to create a body of case law in our circuit robust enough to put officials on notice of every possible combination.

[00:33:53] Speaker 02:
Well, in fact, you've done, although it's a memdisp,

[00:33:56] Speaker 02:
But in effect, you've done so in this case.

[00:33:58] Speaker 02:
I mean, there's a case now that puts, even though it's non-precedential, puts California officials on notice that they can violate the Eighth Amendment by doing this.

[00:34:09] Speaker 02:
The question, I guess, in my mind is, had that occurred before this?

[00:34:13] Speaker 01:
If it had, it's not reported and I wasn't able to find it.

[00:34:17] Speaker 01:
That's why I have to rely upon just the general principle of law.

[00:34:22] Speaker 01:
Thank you so very much.

[00:34:23] Speaker 00:
Appreciate it.

[00:34:24] Speaker 00:
Thank you, counsel.

[00:34:24] Speaker 00:
We thank both counsel for their helpful arguments and the case is submitted and we are adjourned.

[00:34:29] Speaker 01:
Thank you.

[00:34:29] Speaker 01:
Have a nice weekend.

[00:34:31] Speaker ?:
Thank you.

[00:34:32] Speaker 00:
I'll rise.

[00:34:33] Speaker 04:
This court for this session