[00:00:00] Speaker 04:
Good morning and welcome.

[00:00:03] Speaker 04:
Thank you for coming to the Ninth Circuit.

[00:00:05] Speaker 04:
Judge Bay and I would like to thank everyone here at the Pioneer Courthouse for being so welcoming.

[00:00:10] Speaker 04:
Thank you.

[00:00:11] Speaker 04:
There are a number of matters that were submitted today.

[00:00:14] Speaker 04:
They are United States versus Rocket, Cochran versus O'Malley, United States versus Jonas, McLean versus McLean,

[00:00:25] Speaker 04:
Sancho versus Jackson that leaves one case remaining for oral argument.

[00:00:32] Speaker 04:
So if Council would please come forward Thank you, excuse me, may it please the court I

[00:00:47] Speaker 02:
Matthew Kalmanson for the Defendants City Manager Sarah Madari from the City of Eugene, and Chief of Police Christopher Skinner, Counsel.

[00:00:59] Speaker 02:
And I'll be reserving five minutes for rebuttal.

[00:01:04] Speaker 02:
Your Honors, this is the quintessential case where qualified immunity should apply.

[00:01:10] Speaker 02:
The doctrine is meant to protect public officials who make difficult decisions

[00:01:15] Speaker 02:
in events as they are unfolding, they operate under less than perfect information in an environment where the legal rules are complicated and difficult to apply.

[00:01:27] Speaker 02:
That describes the exact situation that my clients were facing at the end of May and early June of 2020, when they were dealing with riots, violence, and unrest in the city of Eugene, Oregon, after the murder of George Floyd

[00:01:43] Speaker 02:
and in the early months of a global pandemic.

[00:01:45] Speaker 04:
May I ask you a question about the retaliation claim?

[00:01:48] Speaker 04:
It's a little bit unclear.

[00:01:51] Speaker 04:
It seems to be making both a claim against your clients for imposition of the curfew but also for enforcement of the curfew.

[00:02:03] Speaker 04:
What is there in the record that your clients had any role in the enforcement?

[00:02:10] Speaker 02:
Thank you, your honor.

[00:02:11] Speaker 02:
My understanding is that the retaliation claim is based on the imposition of the curfew, not the enforcement.

[00:02:17] Speaker 02:
There were claims against the individual police officers for which they were granted summary judgment, but as against the officials, my understanding it was based on the imposition of a curfew.

[00:02:28] Speaker 04:
I'm just looking at paragraph 141 of the second amended complaint.

[00:02:32] Speaker 04:
It says, plaintiffs were engaged in constitutionally protected activity when the defendants acting or purporting to act in the performance of their official duties as law enforcement officers.

[00:02:44] Speaker 04:
Pursuant to the orders and policies of the city of Eugene, Madari, Skinner caused plaintiffs to suffer injuries.

[00:02:51] Speaker 04:
So I guess I'm a little bit

[00:02:54] Speaker 04:
I don't know if they're actually trying to have this be against the law enforcement officers who actually arrested them.

[00:02:59] Speaker 04:
But you're saying this is solely an imposition of the curfew claim.

[00:03:03] Speaker 02:
That's how I understand it, Your Honor.

[00:03:04] Speaker 02:
That's certainly how it was argued below.

[00:03:06] Speaker 02:
By whom?

[00:03:08] Speaker 04:
Who argued it as solely an imposition claim?

[00:03:13] Speaker 02:
When I read the transcript of the argument, and part of that is in the ER, because we addressed it for some preservation reasons,

[00:03:21] Speaker 02:
They were talking about- Council for whom?

[00:03:23] Speaker 02:
Oh, Council for the City.

[00:03:24] Speaker 02:
Council for the City argued it that way.

[00:03:28] Speaker 04:
But how did the plaintiffs argue it?

[00:03:31] Speaker 02:
Yeah, I'm not sure, and we'll be able to ask them that question, but I don't believe they've said that, for example, the city manager had anything to do with the enforcement of it.

[00:03:40] Speaker 02:
In fact, the argument that was made against the city manager was that she deferred completely to the chief of police, and you'll see testimony to that effect in the record also as to enforcement.

[00:03:51] Speaker 02:
The enforcement was done by individual officers, obviously on the streets at the time.

[00:03:56] Speaker 02:
And so I didn't read the claim that way as having to do with enforcement as much as the imposition of the curfew itself.

[00:04:03] Speaker 04:
And if there's any ambiguity about this claim, who bears the burden?

[00:04:07] Speaker 04:
Isn't it the plaintiff's burden when a defendant asserts qualified immunity, it's the plaintiff's burden to show that the rights were allegedly violated and were clearly established?

[00:04:16] Speaker 02:
Correct.

[00:04:16] Speaker 04:
Well, actually, you have to show that was clearly established, but they have to show the rights were allegedly violated, correct?

[00:04:22] Speaker 02:
They have to show that there's clearly established case law once we raise qualified immunity that would support this type of claim, that the imposition of a curfew can be retaliation against a large group of people.

[00:04:34] Speaker 02:
And so it would be their burden to come up with a case that proves that.

[00:04:39] Speaker 02:
As we argued at length, there is no case that we're aware of that shows the contours of retaliation claim in that way, that the imposition of a curfew by executive officers, essentially, dealing with violence and the like, could lead to a retaliation claim against essentially an entire group of protesters of whom they're not even aware of who these individuals are, necessarily.

[00:05:01] Speaker 00:
Is the curfew tailored only to the protesters?

[00:05:05] Speaker 02:
No, the curfew applied to the entire city of Eugene.

[00:05:12] Speaker 02:
And so as I was saying, Your Honors, the situation that the city of Eugene was facing at that time is the same situation that was being faced by other cities at that time, the city of Portland, for example, the city of Salem, for example, and also other cities throughout the country.

[00:05:28] Speaker 02:
And so we saw the same type of act imposed by other cities, which were temporary nighttime curfews that were designed to preserve public order.

[00:05:38] Speaker 02:
And we saw curfews in the city of New York.

[00:05:40] Speaker 02:
We saw curfews in the city of Washington, D.C.

[00:05:43] Speaker 02:
And we since have seen opinions showing that those curfews, which were more restrictive of speech than the city of Eugene's, were found to be constitutional as a matter of law based on Ninth Circuit precedent, Monadia versus Seattle.

[00:05:56] Speaker 04:
But how is this, you know, Manati was a war zone with the WTO, President Clinton was there, heads of state were there.

[00:06:03] Speaker 04:
The level of violence was far greater.

[00:06:06] Speaker 04:
And how do you distinguish this from Collins, where it seems that you're relying on previous night's violence to justify this curfew?

[00:06:13] Speaker 02:
Thank you, Your Honor.

[00:06:16] Speaker 02:
I have a couple of responses to that.

[00:06:18] Speaker 02:
One is if we just start with a step back that we're talking about qualified immunity.

[00:06:22] Speaker 02:
We're not talking about whether it is or is not constitutional.

[00:06:26] Speaker 02:
And so when we think about the qualified immunity standard,

[00:06:29] Speaker 02:
It has to be beyond debate that what these defendants did was unlawful.

[00:06:35] Speaker 02:
So even if we were to do what we call fact matching in the state of Oregon and try to compare the facts of the city of Manatee and the facts of Collins and see which one is closer, there has to be some wiggle room in there because it's supposed to protect all but the plainly incompetent when we're talking about.

[00:06:50] Speaker 02:
qualified immunity.

[00:06:51] Speaker 02:
So the first point I would make is, even if we can find distinguishing factors between Monotti and this case, that's not enough.

[00:07:00] Speaker 02:
We have to dig a little bit deeper.

[00:07:02] Speaker 02:
And so to answer your question more directly, Your Honor, the major difference between Collins and this case is that Collins was not a curfew case.

[00:07:12] Speaker 02:
Collins dealt with a ban on all demonstrations in the city of San Francisco for a definite period of time.

[00:07:18] Speaker 00:
During day or night?

[00:07:20] Speaker 02:
during day or night, Your Honor, correct.

[00:07:22] Speaker 02:
It was a ban on all demonstrations.

[00:07:24] Speaker 02:
It was not a curfew case.

[00:07:26] Speaker 02:
That was Collins.

[00:07:27] Speaker 02:
And what happened in Collins is you had violence and unrest on one day, and the next day before anything else had happened, they banned all demonstrations in the city of San Francisco.

[00:07:40] Speaker 02:
But the court said, and this is the Ninth Circuit speaking,

[00:07:46] Speaker 02:
There was an argument made by the defense in this case, well, this should be constitutional because we also had a curfew place at the time.

[00:07:51] Speaker 02:
And the court says, proclaiming a curfew that requires people to remain at home during certain hours is obviously an entirely different matter from prohibiting only specific First Amendment activities during those or other hours.

[00:08:05] Speaker 02:
The latter action is far more directly restrictive of the right of free expression.

[00:08:09] Speaker 02:
So right there, that is a distinguishing factor.

[00:08:12] Speaker 02:
Collins does not deal with a curfew.

[00:08:14] Speaker 02:
And in fact, Collins specifically says it's not dealing with a curfew.

[00:08:18] Speaker 02:
And that's important because if this court were to take that statement from Collins about violence one day, not supporting a ban on demonstrations the next, and apply it to a temporary nighttime curfew, as far as I know, it would be the first court to ever say that.

[00:08:34] Speaker 02:
the first appellate court to say that.

[00:08:37] Speaker 04:
So then how could we say- And in Nunez, the Ninth Circuit later said that a curfew equally prohibits conduct that's necessary precursor to exercise your First Amendment rights.

[00:08:50] Speaker 02:
I'm sorry, I missed the first thing you said.

[00:08:53] Speaker 04:
I'm just looking at Nunez where it says, San Diego's broader restriction, which was a curfew on teenagers, prohibits conduct that is a necessary precursor to most public expression

[00:09:02] Speaker 04:
thus qualifying as conduct commonly associated with expression.

[00:09:06] Speaker 04:
So it seems in Núñez, they didn't draw the same distinction that the Ninth Circuit did in Collins between a ban and a curfew.

[00:09:15] Speaker 02:
Well, I think there's no question that a curfew restricts free speech in some regard.

[00:09:19] Speaker 02:
But when we're thinking about the test, whether it's a reasonable time, place, or man in restriction, we have to look at the details.

[00:09:28] Speaker 02:
And so we have to look at, for example, the nature of the government act.

[00:09:32] Speaker 02:
And if we have a case from the Ninth Circuit saying that a ban on demonstrations

[00:09:38] Speaker 02:
is a much more restrictive issue when it comes to free expression than a curfew.

[00:09:43] Speaker 02:
How can we say that these public officials should have known that all but the patently incompetent, that it was beyond debate, that Collins applied to what they were trying to do and not Manati, which was in fact a curfew case?

[00:09:59] Speaker 02:
And so are the facts of Manatee a little bit different than this one?

[00:10:02] Speaker 02:
Of course they are.

[00:10:03] Speaker 02:
Seattle is a much bigger city.

[00:10:05] Speaker 02:
They were dealing with a very different thing at the time.

[00:10:10] Speaker 02:
But if you look at what the Ninth Circuit does in Manatee, they essentially

[00:10:16] Speaker 02:
dismiss most of the arguments that you see in this case.

[00:10:19] Speaker 02:
For example, this idea that you can't rely on the violence of a previous day and deciding what to do.

[00:10:25] Speaker 02:
Monadi says that's not true.

[00:10:26] Speaker 02:
Monadi says you can look at patterns of behavior.

[00:10:30] Speaker 02:
And how else would you look at patterns of behavior unless you look at what happened the day before?

[00:10:35] Speaker 02:
And I think it's just frankly unrealistic to say that public officials

[00:10:40] Speaker 02:
when they're thinking about imposing a curfew, are unable to think about the looting and destruction that had happened 24 hours prior.

[00:10:47] Speaker 02:
Why would that be?

[00:10:49] Speaker 02:
And again, we're talking about less of a intrusion on speech.

[00:10:54] Speaker 02:
Another thing that Menadi Court says.

[00:10:56] Speaker 01:
I'm going to reserve time, but I want to go back to.

[00:10:58] Speaker 01:
Could you use the microphone, please?

[00:10:59] Speaker 01:
Sure, sorry.

[00:11:00] Speaker 01:
I know you're trying to reserve time, but I want to go back to the retaliation claim because one of the things that troubles me when I'm trying to figure out how to apply qualified immunity, which is an affirmative defense here, but the Supreme Court has told us that we need to define the right at issue at a high level of specificity, is that there's not even agreement between the parties

[00:11:26] Speaker 01:
or clarity from the record as far as I can tell as to the nature of the retaliation claim and whether it's an imposition claim or an enforcement claim or both.

[00:11:37] Speaker 01:
And if it's an enforcement claim, what exactly the alleged facts are with respect to your client's involvement in the enforcement.

[00:11:48] Speaker 01:
But despite that lack of clarity, then when I look at your summary judgment briefing below,

[00:11:55] Speaker 01:
Although there is a high-level assertion of qualified immunity, in the actual briefing on the retaliation claim, there is not one mention of qualified immunity in the section, and it focuses solely on the causation issue.

[00:12:14] Speaker 01:
So there's essentially no argument in the briefing that I can find that talks about step one or step two with the level of specificity and need to actually engage in the type of analysis that the Supreme Court has told us to do.

[00:12:33] Speaker 01:
I'm having trouble with essentially the argument that qualifying union implies.

[00:12:37] Speaker 01:
I understand the plaintiffs bear some burden, but it is an affirmative defense, and there was essentially no development of that argument below.

[00:12:45] Speaker 02:
One thing I would say to that, Your Honor, is if we are correct that

[00:12:51] Speaker 02:
the individuals are entitled to qualified immunity because the curfew itself, it was not beyond debate that the curfew was unconstitutional at the time.

[00:13:02] Speaker 02:
That would naturally flow to the retaliation claim also, because again, because if we're talking about the imposition of the curfew, which is how this matter was briefed,

[00:13:11] Speaker 02:
I don't recall seeing an argument certainly before this court saying, oh, no, no, that's not what our claim is.

[00:13:18] Speaker 02:
Our claim is something else.

[00:13:20] Speaker 02:
We briefed it as the imposition of the curfew itself is the retaliatory act.

[00:13:25] Speaker 01:
Well, I'm pretty sure in the answering brief there was an argument that they're raising both kinds of claims and it's arguably in the allegations, although at a fairly vague high level that Judge Coe read earlier, it's in the complaint, the operative complaint.

[00:13:41] Speaker 01:
It appears to me, at least, that they're raising both imposition and enforcement, retaliatory enforcement.

[00:13:49] Speaker 01:
And I didn't really see an argument in the retaliation section of your motion for summary judgment about qualified immunity.

[00:13:58] Speaker 01:
And yet, I understand you pressed the district court for ruling on qualified immunity.

[00:14:02] Speaker 01:
You said that the magistrate judge essentially erred or you objected to the lack of a qualified immunity ruling on retaliation.

[00:14:11] Speaker 01:
And then you got one, but I think at a very high level of generality, in part because I think that's all we have.

[00:14:20] Speaker 01:
So I'm not, again, I'm struggling with, given the lack of actual briefing and analysis on this issue in the motions papers below, what to do now.

[00:14:31] Speaker 02:
Well, like I was saying, if the court were to agree that they're entitled to qualify an immunity for the imposition of the curfew itself,

[00:14:39] Speaker 02:
then it's hard to understand how there could be a claim for retaliation arising out of arresting somebody.

[00:14:44] Speaker 01:
Well, you could have a lawful curfew that's enforced in a retaliatory way.

[00:14:49] Speaker 01:
I think that would be the argument.

[00:14:52] Speaker 01:
So I don't think just because the curfew is lawful or there would be a qualified immunity for the imposition of the curfew, that necessarily means that the enforcement, if there was a factual basis for saying that it was enforced

[00:15:09] Speaker 01:
in a viewpoint discriminatory way or retaliation for certain activity, I think that would just be a separate claim that requires a separate analysis.

[00:15:19] Speaker 02:
But there's no evidence that my clients or even an allegation arrested anybody.

[00:15:25] Speaker 02:
So I guess I don't understand that to take the claim and turn it into an enforcement claim against the city manager who is a landscape architect and the chief of police who was not on the ground arresting people.

[00:15:38] Speaker 02:
How could there be a retaliation claim against them when they didn't do the retaliatory act of arresting somebody?

[00:15:43] Speaker 00:
That's a causation argument.

[00:15:45] Speaker 00:
It's not answering, Judge Sung, that you didn't raise qualified immunity in the court below.

[00:15:53] Speaker 00:
Could you address that?

[00:15:54] Speaker 02:
I believe we did raise it in the context of the enforcement, the imposition of the curfew decision.

[00:16:02] Speaker 02:
And so if you're entitled to qualified immunity because the curfew itself, it's not beyond debate that that's invalid.

[00:16:09] Speaker 02:
As we understood the retaliation claim, it was based on that.

[00:16:14] Speaker 02:
So those two arguments are essentially the same.

[00:16:17] Speaker 02:
If you're entitled to qualified immunity because you imposed a curfew that was

[00:16:21] Speaker 02:
It was reasonable for you to think it was constitutional, and then people were arrested.

[00:16:25] Speaker 02:
Now, you might have a retaliation claim against the individual officers who arrest you, but I don't understand how that could be an enforcement claim against people who there's no evidence they have anything to do with enforcement.

[00:16:39] Speaker 02:
So that argument, the imposition claim would apply to both.

[00:16:43] Speaker 02:
And so that's where the qualified immunity analysis at least came up.

[00:16:47] Speaker 02:
That's how it was understood by us below, that it had to do with the imposition of a curfew.

[00:16:52] Speaker 02:
And the question was whether that was a lawful exercise of authority that violated the First Amendment.

[00:16:57] Speaker 01:
So if, I mean, because I believe plaintiffs have been arguing that they do raise an enforcement claim against your clients.

[00:17:12] Speaker 01:
What I didn't see, I guess, in the summary judgment briefing is, you know, or a motion to dismiss for failure to state a claim or a motion to make, you know, the facts more definite or to make the claim more clear or a motion that says there is absolutely no evidence that my clients had any role in, you know, enforcement decisions.

[00:17:35] Speaker 01:
You know, so the grounds on which you're saying there is no retaliation

[00:17:40] Speaker 01:
claim to me have all to do with that and very little to do with qualified immunity.

[00:17:49] Speaker 02:
But what is the case that they're citing that could hold a CINI manager liable for the arrest of somebody that happens on the streets pursuant to a lawful order?

[00:17:59] Speaker 02:
So we would again go back to that question and so it's it's again unclear to me

[00:18:04] Speaker 02:
the nature of that claim.

[00:18:06] Speaker 02:
And if it turns out that that's the only claim that survives this, that would be a very different situation than it is right now, where we are talking about people being personally liable for the imposition of a curfew.

[00:18:18] Speaker 02:
when the same type of curfew has been upheld based on non-circuit precedent other places.

[00:18:21] Speaker 02:
So if that's all that's left of this claim, that would be significant.

[00:18:26] Speaker 02:
But again, it seems unclear to me what even that case would be.

[00:18:31] Speaker 02:
Plaintiff does have a burden here to come forward with proof of clearly established law that would support

[00:18:39] Speaker 02:
that claim, and we're struggling to even define what that claim is.

[00:18:43] Speaker 02:
So how could plaintiffs have met their burden of coming forward with clearly established law when we certainly raised qualified immunity?

[00:18:49] Speaker 02:
And if the answer is, well, no, no, that's not our claim, and here's a case that supports the type of claim we are asserting, what is that claim?

[00:18:56] Speaker 02:
We don't know that.

[00:18:57] Speaker 04:
So it looks like in your objections to the magistrate judge's report and recommendations

[00:19:03] Speaker 04:
You said, and I was unclear earlier, that the plaintiff has the burden on prong two and that the magistrate judge hadn't addressed that, that you had raised that the plaintiff hadn't raised or pointed to clearly established law.

[00:19:16] Speaker 02:
Correct.

[00:19:17] Speaker 04:
And then that's why Judge Aiken, the district judge, then went ahead and ruled on prong two and said, no, I think Collins is the clearly established law here.

[00:19:28] Speaker 02:
Collins says it applies to the imposition of the curfew.

[00:19:31] Speaker 02:
And then when it came to retaliation, I think Judge Aiken applied some sort of general case law that says you can't retaliate against people for exercising First Amendment rights.

[00:19:40] Speaker 02:
A very general level of specificity, which, again, we would think is not consistent with qualified immunity law.

[00:19:47] Speaker 02:
I am way over my time.

[00:19:48] Speaker 02:
I'm happy to answer any additional questions.

[00:19:50] Speaker 04:
Well, I think we are still a little bit confused about the retaliation.

[00:19:53] Speaker 04:
But maybe in rebuttal, after we hear from plaintiff's counsel, we can

[00:19:57] Speaker 04:
ask you further.

[00:19:58] Speaker 04:
Is that all right?

[00:19:59] Speaker 04:
Okay.

[00:20:00] Speaker 04:
Thank you.

[00:20:01] Speaker 04:
Go ahead, please, and take a seat.

[00:20:15] Speaker 03:
Good morning.

[00:20:16] Speaker 03:
Good morning.

[00:20:18] Speaker 03:
May it please the court, Mary Ann Dugan, for the plaintiff's respondents in this case.

[00:20:23] Speaker 03:
I wanted to quickly address the retaliation claim since that was the last addressed issue.

[00:20:30] Speaker 03:
Just to be clear, the complaint did claim retaliation both for the issuance of the curfew and the enforcement of the curfew.

[00:20:43] Speaker 04:
And just so I understand your claim, how did Madari and Skinner enforce?

[00:20:49] Speaker 04:
Is it a facilitation argument that you're making?

[00:20:54] Speaker 03:
And just to be clear, that was not really drawn out in the summary judgment briefing, but the enforcement issue would not fall on Ms.

[00:21:04] Speaker 03:
Madari.

[00:21:05] Speaker 03:
She was not in charge of enforcing.

[00:21:07] Speaker 03:
However, Chief Skinner was overseeing all of the police that night.

[00:21:13] Speaker 03:
a reasonable jury could certainly find that both Skinner and Madari were aware of the anti-police statements expressed during that weekend and could find also, as we listed in footnote four on page twelve, that there were prior

[00:21:32] Speaker 03:
Severe riots with thousands of people and fires that did not result in a curfew, but those were not political riots Those were police.

[00:21:40] Speaker 03:
Sorry those were student parties.

[00:21:42] Speaker 03:
So a reasonable jury could find that issuing this the curfew as well as the way it was enforced Through the police department with chief Skinner at the at the helm was retaliatory and just to clarify You are arguing

[00:22:01] Speaker 01:
that the curfew was imposed with a retaliatory motive, and that would implicate both Madari and Skinner.

[00:22:08] Speaker 01:
And then you're conceding, however, to the extent there is a claim that it was enforced in a retaliatory manner that would only go to Skinner.

[00:22:18] Speaker 03:
Correct.

[00:22:19] Speaker 03:
And to the now-dismissed officers.

[00:22:21] Speaker 01:
And what facts or evidence is there in the record of

[00:22:30] Speaker 01:
retaliatory motive other than what you're inferring from you're saying that there's, is there record of these other what you call non-political riots, which are parties that are comparable?

[00:22:45] Speaker 01:
Is there evidence in the record of these comparators?

[00:22:48] Speaker 03:
We dropped them in a footnote requesting judicial notice.

[00:22:52] Speaker 03:
This was not something that was put to the test at the summary judgment stage by the defendants.

[00:22:57] Speaker 03:
They chose not to address the factual basis of the retaliation claim.

[00:23:01] Speaker 03:
Rather, they addressed the issue of whether you could have animus against a group.

[00:23:10] Speaker 03:
And Judge Sung, you're correct that the defendant did not argue qualified immunity in the summary judgment motion on the retaliation claim.

[00:23:22] Speaker 03:
And contrary to defendant's argument, even if you found that the curfew, there was qualified immunity for issuing the curfew as a general concept,

[00:23:33] Speaker 03:
That does not solve the issue of whether there's qualified immunity for retaliation in O'Brien, the Ninth Circuit.

[00:23:42] Speaker 04:
But what are the specific facts showing that there's a genuine issue for trial on this claim?

[00:23:47] Speaker 03:
The specific facts that would be brought out at trial would all amount to circumstantial evidence, which is not unusual in a retaliation frame, obviously.

[00:23:56] Speaker 04:
Right.

[00:23:57] Speaker 04:
But what is it?

[00:23:57] Speaker 04:
Sort of following up on Judge Sung's point, what is the retaliation evidence?

[00:24:01] Speaker 03:
So three days of very loud anti-police, anti-city sentiment.

[00:24:08] Speaker 04:
Fires in a Starbucks.

[00:24:10] Speaker 04:
There's some fairly serious conduct here as well, correct?

[00:24:15] Speaker 03:
Correct.

[00:24:15] Speaker 03:
That is not the focus of our retaliation claim.

[00:24:18] Speaker 03:
That happened two days earlier.

[00:24:19] Speaker 03:
The focus of the retaliation claim is that with people in the streets saying, ACAB, and showing severe anger with elected officials and police,

[00:24:33] Speaker 03:
And compared to these prior literally riots of college students leading to 400 people losing their phone service, for example, no curfews were issued.

[00:24:46] Speaker 03:
This was unprecedented to our knowledge.

[00:24:49] Speaker 03:
Those would be the facts that would come out at trial that were not put to the test at the summary judgment stage.

[00:24:57] Speaker 04:
What's your best case to support your retaliation claim?

[00:25:02] Speaker 03:
As with most retaliation claims, they are difficult.

[00:25:05] Speaker 03:
I used to do employment discrimination law, and you're almost always entirely relying on circumstantial evidence of animus.

[00:25:12] Speaker 04:
No, but I mean to show the clearly established prong to what's your best case.

[00:25:15] Speaker 03:
The clearly established.

[00:25:16] Speaker 03:
So, you know, Brian, I was moving on to that, actually.

[00:25:19] Speaker 03:
This court denied qualified immunity to university administrators for retaliation when they restricted access to a university building based on

[00:25:32] Speaker 03:
what a jury could find was based on student speech.

[00:25:35] Speaker 03:
That's an example of an administrative order that on its face might appear to be neutral and yet it was allowed to proceed to the jury on the retaliation claim.

[00:25:51] Speaker 01:
And what exactly are you alleging was retaliatory in the enforcement of the curfew?

[00:26:01] Speaker 03:
Well in the enforcement so the issuance itself we're alleging was retaliatory to to shut down the entire city based on The enforcement was bizarre People were who had voluntarily moved themselves out of the downtown curfew area to the Whole Foods and were kneeling in respect for George Floyd and

[00:26:28] Speaker 03:
were told, you have three minutes before the curfew goes citywide, you better start dispersing.

[00:26:36] Speaker 03:
They immediately started dispersing, but they were still arrested as they were trying to get to their cars.

[00:26:42] Speaker 03:
So the enforcement was

[00:26:46] Speaker 03:
It was clearly to me, obviously not to the world, clearly retaliatory to take peaceful protesters who were trying to disperse and start arresting them for violation of curfew, where they could have just let people go to their cars.

[00:27:06] Speaker 01:
And so you would be arguing

[00:27:11] Speaker 01:
you would be essentially inferring a retaliatory motive from the circumstances.

[00:27:17] Speaker 03:
Yes, Your Honor, yes.

[00:27:19] Speaker 01:
And what is your best case or the prong to the clearly established law on the enforcement?

[00:27:27] Speaker 03:
So, prong to meaning, is there a case exactly on point like this or close enough?

[00:27:33] Speaker 01:
Close enough where you'll be arguing that it's obvious or what is your prong to argument?

[00:27:38] Speaker 03:
Well, I think for retaliation, because each type of retaliation can be so unique and tailored to the circumstances,

[00:27:48] Speaker 03:
I'm not aware of a qualified immunity being granted to a government official who is alleged to have acted in a retaliatory manner.

[00:27:59] Speaker 01:
And to put a finer point on it, the individual officers who carried out those arrests are not defendants in the retaliatory enforcement claim.

[00:28:11] Speaker 03:
They were.

[00:28:11] Speaker 03:
They were.

[00:28:12] Speaker 01:
They were dismissed.

[00:28:15] Speaker 01:
Before us now, the only question it would be Chief Skinner, and then is there any evidence in the record, deposition testimony, anything to suggest that Chief Skinner ordered the officers to respond in this way?

[00:28:31] Speaker 03:
Again, since it wasn't tested at the summary judgment stage, what I would say from my memory is that he was fully aware that there was very few minutes, you know, less than five minutes notice.

[00:28:44] Speaker 03:
He gave that notice to his lieutenants, and they gave it to the sergeants.

[00:28:50] Speaker 03:
And he was aware at the time that it was being then used to authorize arrests of people trying to disperse, yes.

[00:29:00] Speaker 04:
You know, in your retaliation claim, you actually do assert it against Madari for the enforcement.

[00:29:10] Speaker 04:
So what you're saying today is different than what's in your complaint, right?

[00:29:14] Speaker 03:
The retaliation claim included the issuance of the curfew as well as the enforcement.

[00:29:19] Speaker 03:
Our intent was to have the claim against Madari be for the issuance of the curfew.

[00:29:26] Speaker 04:
No, but you say as a direct and proximate result of the unconstitutional actions of the city, Madari and Skinner, including the implementation and enforcement of unconstitutional curfews, Plains of Suffered Injuries.

[00:29:39] Speaker 04:
You don't say Madari is not liable for the enforcement portion of your retaliation claim.

[00:29:50] Speaker 04:
thrown in together.

[00:29:51] Speaker 03:
Could have separated those out, implementation enforcement.

[00:29:55] Speaker 03:
You're correct.

[00:29:56] Speaker 03:
We did not.

[00:29:56] Speaker 03:
We should have.

[00:29:58] Speaker 03:
I don't think that changes the nature of the complaint, which is to be liberally construed.

[00:30:11] Speaker 03:
On the curfew claim, you know, the contrary to defendants' arguments, the qualified immunity inquiry on that claim does involve facts, and it involves facts that actually have already been decided

[00:30:27] Speaker 03:
They were decided by the magistrate judge in the context of the plaintiff's motion for summary judgment.

[00:30:34] Speaker 03:
That's ER 62.

[00:30:36] Speaker 03:
And then the Article III judge, even though defendants chose not to file objections, reviewed that and found no clear error.

[00:30:46] Speaker 03:
That's at ER 81.

[00:30:49] Speaker 03:
And the magistrate went on at length to explain why the facts in this case were

[00:30:57] Speaker 03:
indistinguishable from Collins.

[00:31:01] Speaker 03:
So at ER 62, just 63,

[00:31:06] Speaker 04:
You know, when I read Collins, it seems like there are a bunch of people gathered at a plaza.

[00:31:14] Speaker 04:
It seems like a very factually different situation than the one here.

[00:31:22] Speaker 04:
Can you please address that?

[00:31:25] Speaker 04:
Collins has all this language that, you know, we're not addressing the question of whether there's widespread

[00:31:31] Speaker 04:
continuing violence that appears to be beyond the ability of the police to control.

[00:31:36] Speaker 04:
A time-limited ban on all demonstrations might be lawful.

[00:31:39] Speaker 04:
It does seem to leave open the question that arguably could be before us now.

[00:31:49] Speaker 03:
Well, so at AER 65, the magistrate went on in great detail about the events of the 31st and said that, and concluded in factual conclusions that were not objected to, that the evidence here simply does not support a reasonable belief of the kind of imminent or extensive violence that would justify expansion of the curfew to the entire city.

[00:32:14] Speaker 03:
even in viewing all evidence in the light most favorable to defendants.

[00:32:18] Speaker 03:
And that was after he went through a discussion of the actual, he noted that he looked at the videos, he read the police reports, he looked at photos, he said there was no evidence to give concern about a citywide

[00:32:31] Speaker 01:
That goes to step one of the qualifying rate.

[00:32:34] Speaker 01:
I think that there was a violation.

[00:32:37] Speaker 01:
There was a finding, essentially, that the curfew itself was not a reasonable time placement restriction.

[00:32:43] Speaker 01:
But there is a different question of whether there is clearly established law under the circumstances presented, whether the imposition of a curfew violates the First Amendment.

[00:32:54] Speaker 01:
And my understanding is that you're relying solely on Collins.

[00:32:59] Speaker 01:
My trouble with Collins is Collins was addressing a ban on protests.

[00:33:07] Speaker 01:
not a curfew.

[00:33:09] Speaker 01:
And in fact, the court, we said, this is not a curfew.

[00:33:13] Speaker 01:
There was a curfew, actually, in that case that was not essentially, I think, either unchallenged or the court said there's no problem with a curfew.

[00:33:21] Speaker 01:
This is different, though, because this is a ban on protests.

[00:33:26] Speaker 01:
And the whole analysis had to do with the fact that the ban was specific to First Amendment activity and during the day.

[00:33:36] Speaker 01:
to the extent there was anything analogous in Collins, the curfew was approved of.

[00:33:42] Speaker 01:
So I don't understand how Collins clearly establishes that the curfew here was a violation, even if there was a violation.

[00:33:53] Speaker 01:
The question is whether there is qualified immunity for individuals with respect to the damages claim.

[00:34:00] Speaker 03:
Correct.

[00:34:00] Speaker 03:
So two responses, Your Honor.

[00:34:02] Speaker 03:
If you noted, I think Collins needs to be read in context with Nunez because Nunez did address the curfew.

[00:34:10] Speaker 03:
It did not address the same

[00:34:13] Speaker 03:
issue in Collins which is the the the discussion of curfew in Collins is dicta the issue of law that emerged from Collins is that the occurrence of limited violence and disorder on one day is not a justification preventing all demonstrations peaceful and otherwise on the immediately following day and

[00:34:36] Speaker 03:
Nunez said, if you put in place a curfew, which in that case was a juvenile curfew, you have to have exceptions for First Amendment activity.

[00:34:46] Speaker 03:
You can't shut down an entire city for the entire night, even to juveniles, without leaving open First Amendment activity options.

[00:34:56] Speaker 03:
So if you read those two in context together,

[00:35:00] Speaker 03:
this type of curfew, a city-wide curfew.

[00:35:03] Speaker 03:
Now, keep in mind, Manati was a very narrow geographic scope curfew between the hotels and the event, the conference event.

[00:35:15] Speaker 03:
The other distinguishing factors in Manati were... Let's talk about the events here.

[00:35:20] Speaker 04:
The fire at Starbucks was the day before, not two days before.

[00:35:24] Speaker 04:
No, it was May 30th.

[00:35:25] Speaker 03:
It was the night of May 29th into the morning of May 30th.

[00:35:28] Speaker 04:
It was the morning of May 30th.

[00:35:29] Speaker 04:
Correct.

[00:35:30] Speaker 04:
48 hours earlier.

[00:35:30] Speaker 04:
So that's the day before.

[00:35:31] Speaker 04:
That's the day before.

[00:35:33] Speaker 04:
And on May 31st, you have the protest organizer expressing concern that the peaceful protesters have dispersed and the people who are remaining are intending to engage in riot behavior.

[00:35:46] Speaker 04:
That's the organizer, right?

[00:35:48] Speaker 04:
And then you have people striking light poles, police vehicles with hammers,

[00:35:54] Speaker 04:
You have them shooting paintball guns at the police.

[00:35:59] Speaker 04:
They're planning to block the basically critical route to the hospital.

[00:36:04] Speaker 04:
So I guess my question for you is, based on these facts, what is the clearly established law here?

[00:36:15] Speaker 03:
With your respect, Your Honor, the magistrate in deciding our motion for summary judgment, where all the evidence had to be taken in the light most favorable to the defendants, reviewed all the evidence you just cited and found that the level of violence on the 31st squarely fell within the Collins issue of law.

[00:36:41] Speaker 03:
The defendants waived any right or ability to challenge those factual findings.

[00:36:50] Speaker 03:
This case is nothing like the level of disruption that was going on in Manati or in the case's defendant's site in their 28-J letter.

[00:37:02] Speaker 03:
In all three of those cases, there were

[00:37:06] Speaker 03:
huge numbers of arrests.

[00:37:09] Speaker 03:
In Jeffrey, which is in the 28-J letter, 34 officers were injured.

[00:37:15] Speaker 04:
In Manati, there were... Well, show me in Collins, where is that level of threat of violence and violence?

[00:37:25] Speaker 03:
Collins did not involve that, and neither does this case, as the magistrate found as a matter of fact.

[00:37:32] Speaker 03:
I see I'm out of time, Your Honors.

[00:37:34] Speaker 03:
Thank you.

[00:37:50] Speaker 02:
Thank you, Your Honors.

[00:37:50] Speaker 04:
I think, I suspect it'll go longer, but three minutes is fine.

[00:37:56] Speaker 02:
Okay, thank you.

[00:37:57] Speaker 02:
Go ahead.

[00:37:58] Speaker 02:
Would you like me to start with retaliation?

[00:38:00] Speaker 04:
I think that'd be helpful.

[00:38:01] Speaker 02:
Okay.

[00:38:02] Speaker 02:
So I think what you just heard is, even though we're calling it enforcement, the retaliation claim is based on the imposition of the curfew.

[00:38:10] Speaker 02:
That's what you just heard them struggling with.

[00:38:12] Speaker 01:
Well, no.

[00:38:12] Speaker 01:
I heard that there was an imposition claim and an enforcement claim, and that the enforcement claim was brought against

[00:38:19] Speaker 01:
Chief Skinner only.

[00:38:21] Speaker 01:
With respect to retaliation.

[00:38:24] Speaker 02:
Right, but when you asked what is the basis for it, it was the imposition of the curfew and the fact that there wasn't enough noticed before officers started arresting people.

[00:38:33] Speaker 02:
There's no allegation.

[00:38:34] Speaker 01:
To be fair, because we're going to construe all the facts in favor of the non-moving

[00:38:40] Speaker 01:
party here, there's an allegation that the manner of enforcement, that the giving of little notice and the failure to give people actual opportunity to disperse was essentially more strict enforcement or more onerous enforcement than they would have if they did not disagree with the viewpoints being expressed.

[00:39:08] Speaker 02:
Right, and again, it's hard for me to understand how that's different from the imposition of the curfew claim.

[00:39:15] Speaker 01:
Because if you have a... Because I see the imposition has to do with the existence of the curfew, and the enforcement has to do with the manner in which the curfew was being enforced.

[00:39:25] Speaker 02:
But if the curfew says you cannot be on public streets starting at 11 o'clock, and you are arrested for being on the public streets after 11 o'clock, it is difficult for me to understand a

[00:39:38] Speaker 02:
Enforcement claim that it's not based on whether that curfew order is valid if the curfew order is valid Take it as a given that there is in the factual argument here.

[00:39:46] Speaker 01:
That was that there's a

[00:39:50] Speaker 01:
And if there was not but for viewpoint discrimination or retaliatory motive, they would have given the protesters the opportunity to get in their cars and drive away, even if it was 1103 PM.

[00:40:01] Speaker 02:
So but for the first event violation, they would not have enforced the curfew, is what we're saying.

[00:40:05] Speaker 01:
In the manner that they did, they would have allowed them to leave at 11 o'clock, even if it took them a few minutes to get home.

[00:40:12] Speaker 01:
That's that's the I believe that's my understanding of the allegation at least as represented here today So there's something there for you to respond to you, correct?

[00:40:23] Speaker 02:
And so again as I view that we're still talking about the nature of the curfew itself because it is

[00:40:31] Speaker 02:
The claim when it relates to chief Skinner's now we have the city manager out on this idea But as it relates to chief Skinner as it was argued before The argument that was made would apply to this claim as well, which is simply because

[00:40:54] Speaker 02:
you are enforcing a curfew that applies to everybody, to an entire speech based on an entire group, what is the general principle, the clearly established law that would show that what Chief Skinner did was incorrectly?

[00:41:08] Speaker 02:
Because again, the theory you just heard is not that Chief Skinner is out there arresting people.

[00:41:13] Speaker 02:
That's not the theory.

[00:41:14] Speaker 02:
The theory is in the manner that you retaliated against this entire group of people through your enforcement of an otherwise valid curfew.

[00:41:23] Speaker 01:
So where's the case that says that?

[00:41:27] Speaker 01:
You're arguing that it's nothing different from the imposition claim.

[00:41:32] Speaker 01:
Let's imagine here that they had evidence that there was another curfew and people were given a five-minute grace period to comply.

[00:41:41] Speaker 01:
But here they have this curfew in response to

[00:41:45] Speaker 01:
you know, the George Floyd protests and they don't give that five-minute grace period.

[00:41:51] Speaker 01:
They're saying the decision to not give a five-minute grace period shows that they were enforcing it in a retaliatory way, with retaliatory motive.

[00:42:03] Speaker 01:
So it's not just, even if the imposition of the curfew was

[00:42:08] Speaker 01:
Well, I think the argument, actually there was a finding that I think it was not a reasonable time-place manner restriction, but you're arguing it was not clearly established to be.

[00:42:19] Speaker 01:
So in this case, there is actually the curfew is not lawful.

[00:42:25] Speaker 01:
But putting that aside, if the curfew was lawful, but it was being enforced in a more strict manner than it would have been otherwise enforced, that's the argument.

[00:42:34] Speaker 02:
Correct.

[00:42:35] Speaker 02:
And the argument that we made would apply to that theory as well, which is your retaliation claim is based on essentially the collective speech of an entire group of people and not the individual circumstances of each arrest.

[00:42:49] Speaker 02:
That is the argument that was made.

[00:42:51] Speaker 01:
That was causation, not qualified immunity.

[00:42:54] Speaker 01:
Correct.

[00:42:54] Speaker 02:
So that was qualified immunity because we're saying it's not clearly established that this is a retaliation claim that you can establish that you can say that there is a retaliation claim based on the speech of this collective group of people who are out in the streets.

[00:43:09] Speaker 02:
And if you look at.

[00:43:10] Speaker 02:
ER 77 in the foregoing pages, that's the argument that's being made by counsel to the magistrate judge, that this is just not a recognized type of retaliation claim.

[00:43:21] Speaker 02:
It has to be against the individual people, not the collective speech of the group.

[00:43:27] Speaker 02:
There's no case that says that.

[00:43:28] Speaker 02:
So it goes to the merits in the sense that the theory frankly doesn't make sense to me because you have a

[00:43:35] Speaker 02:
What we're positing is a lawful curfew.

[00:43:37] Speaker 02:
But if we put that aside, just that the theory itself doesn't make any sense, where's the clearly established law that supports a theory of this type?

[00:43:45] Speaker 02:
Where is it?

[00:43:46] Speaker 02:
And we did make the argument that this sort of collective retaliation against everybody who's protesting

[00:43:53] Speaker 02:
There is no retaliation claim that we've seen that's like that.

[00:43:56] Speaker 02:
And the case that we have seen.

[00:43:57] Speaker 01:
A disagreement with the viewpoint being expressed at a protest is not a basis for a First Amendment retaliation claim?

[00:44:06] Speaker 02:
Not when you're talking about a lawful curfew, an enforcement of a curfew.

[00:44:10] Speaker 02:
That if we're saying that it has to be individual, that you have to know something about what the people are doing.

[00:44:16] Speaker 04:
And was there any evidence in the record about this retaliatory motive or intent?

[00:44:23] Speaker 02:
I'm not aware of any evidence as to the arrest themselves.

[00:44:27] Speaker 04:
Yes, to the enforcement.

[00:44:28] Speaker 02:
No.

[00:44:29] Speaker 02:
I mean, not that I'm aware of, that there was evidence that they were arrested because they violated the curfew.

[00:44:35] Speaker 02:
I think it's undisputed that they violated the curfew.

[00:44:36] Speaker 04:
So let me ask you another question.

[00:44:39] Speaker 04:
Earlier, Judge Sung mentioned, well, you didn't file a motion for a more definite statement.

[00:44:44] Speaker 04:
You didn't file a motion to dismiss 12B6.

[00:44:47] Speaker 04:
Why don't you address that point?

[00:44:50] Speaker 04:
The cases that don't rule on qualified immunity for the failure to seek a more definite statement, those are all motions to dismiss, right?

[00:45:00] Speaker 04:
You're going to have all this discovery that would further flesh out the facts, correct?

[00:45:06] Speaker 02:
Correct.

[00:45:06] Speaker 02:
I mean, at this point, we have the discovery.

[00:45:08] Speaker 04:
Right.

[00:45:08] Speaker 04:
Discovery is closed, right?

[00:45:09] Speaker 04:
You've gone through summary judgment?

[00:45:11] Speaker 02:
We've moved for summary judgment, correct.

[00:45:12] Speaker 04:
But the only thing next is trial.

[00:45:14] Speaker 04:
Is that right?

[00:45:14] Speaker 02:
Yes.

[00:45:15] Speaker 04:
So wouldn't it be a perverse incentive for a plaintiff to say, well, if you just do a very vague claim, you're going to survive and be able to go to trial because no one will be able to assess qualified immunity?

[00:45:26] Speaker 02:
I would agree with that, but I guess what I would say here is at this point the facts have been developed and we're still struggling to state exactly what this claim is.

[00:45:36] Speaker 02:
And my clients are being faulted for not raising the correct qualified immunity against a claim that none of us seem to be able to state with any specificity.

[00:45:44] Speaker 02:
And the question is supposed to be, what's the clearly established law that's supposed to guide these public officials' conduct?

[00:45:53] Speaker 02:
And did they do something that is so patently unreasonable that it's beyond debate that it violated the law?

[00:45:58] Speaker 02:
And we can't even define what it is.

[00:46:01] Speaker 02:
So how could they not be entitled to qualified immunity under these circumstances?

[00:46:04] Speaker 02:
And I understand there's sort of procedural arguments that could be made about ways to

[00:46:08] Speaker 02:
make the claim more definite.

[00:46:10] Speaker 02:
But again, it is plaintiff's burden to come forward with a case that governs this specific theory, and we still don't know what the theory is.

[00:46:19] Speaker 02:
So how could there be clearly established case law that would say that we don't even get qualified immunity for it?

[00:46:25] Speaker 02:
Thank you, Your Honor.

[00:46:27] Speaker 04:
All right.

[00:46:27] Speaker 04:
Thank you to both counsel for your helpful arguments today.

[00:46:30] Speaker 04:
Thank you and word.

[00:46:31] Speaker 04:
This case is submitted and we're adjourned.

[00:46:35] Speaker 03:
All rise.