[00:00:00] Speaker 00:
Good morning.

[00:00:00] Speaker 00:
May it please the court, Aaron Wiener on behalf of Appellants Arthur Garrens, James Crowley, and Nicholas Rubino.

[00:00:06] Speaker 00:
I'd like to reserve four minutes for rebuttal.

[00:00:10] Speaker 00:
Appellants in this case are entitled to qualified immunity because it was not clearly established in 1991 that a parent's wrongful conviction could violate the 14th Amendment, familial association rights of their children.

[00:00:22] Speaker 00:
And it was not until at least 2001 in this court's decision in Lee versus City of Los Angeles

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that this court first addressed whether that right exists.

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Here, the district court incorrectly denied qualified immunity for two principal reasons.

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First, the district court presumed that sufficient allegations that Joaquin's constitutional rights had been violated automatically meant that Pedro's separate 14th Amendment rights were clearly established.

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The fact that a parent or child's constitutional right is clearly established does not mean that another's familial association right is automatically clearly established for qualified immunity purposes, as shown most recently in this court's decision in Scott v. Smith.

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Second, because the district court presumed that Pedro's asserted right was clearly established, did not look to the state of the law at the time of the conduct at issue.

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This analysis would have revealed that Smith v. City of Fontana

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the only Ninth Circuit case that Pedro relies on dealt with a child's claim of unwarranted interference with familial association in the context of an excessive force case and did not concern the factual context of a wrongful conviction case, which we have here.

[00:01:39] Speaker 03:
Why, I mean, those are different contexts, but why, why does the difference matter here?

[00:01:46] Speaker 03:
I mean, if it's clear that you can't interfere, I mean, if there's a right

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to familial association that you can't interfere with by the use of physical violence against one party.

[00:01:57] Speaker 03:
Why doesn't, you know, incarcerating one of the parties for many years, it doesn't seem like that big of a stretch, that the prohibition on one would clearly establish the prohibition on the other.

[00:02:08] Speaker 00:
I think that the response to that question is that when conducting a qualified immunity analysis, the analysis starts first with defining what the right at issue is.

[00:02:21] Speaker 00:
As your honor pointed out in the previous argument, those rights are not to be defined at high levels of generality.

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So to say that there's a right to be free from unwarranted interference with familial association,

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at a general level, no matter what the factual context is, doesn't supply the required level of specificity to put an officer on notice that their conduct could subject them to liability for the particular right at issue in the case.

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So much in the same way as saying that a claimant has a right to be free from excessive force doesn't provide

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the required notice to an officer in all factual contexts that their conduct could violate the constitutional rights of the plaintiff, saying that a plaintiff has the right to be free from unwarranted interference with familial association in all contexts, whether it be excessive force, whether it be in the wrongful conviction context, doesn't supply the necessary factual specificity.

[00:03:23] Speaker 03:
So when, in your view, did the right and the wrongful conviction context become clearly established?

[00:03:31] Speaker 00:
It became clearly established in the Ninth Circuit at least as early as 2001 in this court's leave East City of Los Angeles case.

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There's no case that predates that 2001 case, which is a decade after the conduct at issue in this case, that dealt with the factual scenario

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of a child or a parent suing based on the alleged wrongful conviction of the other.

[00:03:56] Speaker 00:
There's a district court case that did address that, but it was also almost a decade after the conducted issue here.

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District court cases wouldn't, in this context, provide a source of clearly established rights.

[00:04:09] Speaker 00:
But even so, there was one case, and that was in 2000, which is still well after the conducted issue in this case.

[00:04:15] Speaker 02:
Do you want us to just say that Smith was a different context?

[00:04:19] Speaker 02:
Smith.

[00:04:20] Speaker 02:
I think there's there's a couple versus City of Fontana.

[00:04:24] Speaker 02:
There's Judge Miller's raised.

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

[00:04:30] Speaker 00:
I think there's there's two principal issues that we raised with respect to Smith v. City of Fontana.

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First is that it did deal with a separate factual context being that it dealt with an excessive force case.

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But there's also a problem with relying on Smith as a source of clearly established law because shortly after it was decided

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the core holding in Smith was overruled by the Supreme Court's decision in Graham v. Connor.

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So to the extent that Smith did establish, essentially after the Supreme Court's holding in Graham v. Connor, the only part of Smith that remained as good law is its expansion of the claim

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to allow children to assert this right.

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Before Smith, it was the law of the land that only parents could sue for unwarranted interference with familial association based on a deprivation of that association with their child.

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Smith expanded that to allow children.

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So to the extent that an officer in 1990 is looking to Smith, they're not looking to it as a source of excessive force standards.

[00:05:42] Speaker 00:
If it can't be relied on for its core holding, then it doesn't provide the necessary specificity for a clearly established right.

[00:05:52] Speaker 01:
Even though it dealt with deprivation of the associational connection with the parent?

[00:05:58] Speaker 00:
It did deal with that deprivation, but again, the issue in a qualified immunity analysis is it starts with defining what the right is.

[00:06:10] Speaker 00:
If we're to say that there is this right to unwarranted interference with familial association, that's just simply too broad of a definition to provide any type of notice to an officer that in a specific factual context that their conduct could subject them to liability.

[00:06:31] Speaker 00:
I'd also like to point out to the court that because Smith v. City of Fontana did not provide the necessary specificity to be a source of clearly established law in this context, and due to the fact that the Supreme Court even today has not addressed this specific right, an officer

[00:06:51] Speaker 00:
standing in the shoes of the appellants here would look to law outside of the Ninth Circuit.

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As we pointed out in our brief, a majority of circuits today have ruled that

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conduct that incidentally affects the familial association does not give rise to a claim.

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At least one of those cases that we cited was decided before the conduct at issue in this case.

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And at least one other circuit decided that was the case before this court decided to leave the city of Los Angeles.

[00:07:24] Speaker 03:
So what's the relevance of that?

[00:07:28] Speaker 03:
abstracting from the specific law here, but if there's a, you know, hypothetically, if we have circuit law that clearly establishes a particular right and then a bunch of other circuits have rejected that, is it clearly established within the circuit?

[00:07:46] Speaker 03:
I mean, my understanding was that the Supreme Court has sort of reserved that question, but I thought we followed the rule that in that situation it would be clearly established.

[00:07:56] Speaker 03:
Is that right?

[00:07:58] Speaker 00:
Yes, your honor.

[00:07:59] Speaker 00:
But I think that the issue is that, as of the time of the conduct in this case, in the Ninth Circuit, the right had only been clearly established at a very high level of generality.

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And so if it has only ever been, at the time of the conduct, defined at a very high level of generality, it's appropriate to look

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at what's the state of law in other circuits to see is this constitutional question beyond debate.

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So on the one hand, we have the Ninth Circuit's decision saying at a very high level of generality that this right in the abstract does exist, other courts saying that it doesn't.

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That's the prototypical example where a court should grant qualified immunity to an officer because the issue is not beyond debate.

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And so I'd like to go back to the district court's error here and start with principally what the issue is.

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The district court relied on a Ninth Circuit case of Mellon v. Wynn to find that two claims, when brought by a parent and a relative in the context of a familial association, necessarily succeed or don't succeed together.

[00:09:26] Speaker 00:
The problem with that approach is that it doesn't adhere to the principle that constitutional rights are personal rights.

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And because they're personal, they must be analyzed independently of any other right in the case.

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And so for the district court to look at, well, was there some violation of Joaquin's rights?

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And if there are sufficient allegations that his rights have been violated, then necessarily every other right at issue in the case, no matter what, regardless of what the state of the law is at that

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at that time, as of now, must necessarily succeed.

[00:10:07] Speaker 00:
That's erroneous because, again, it doesn't look at whether the law was clearly established with respect to the specific right at issue.

[00:10:19] Speaker 03:
And just to be clear, but on the converse of that, I take it your position is that if

[00:10:24] Speaker 03:
If Joaquin's claims fail, then Pedro's claims necessarily fail.

[00:10:31] Speaker 03:
You're just saying that if Joaquin's claims succeed, that doesn't necessarily mean that Pedro's claims succeed.

[00:10:37] Speaker 03:
Is that right?

[00:10:38] Speaker 00:
That's correct.

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And I think that's principally

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the basis on which Pager has misread the Mellon v. Wynn decision in which the district court adopted.

[00:10:51] Speaker 00:
Certainly, if there's no constitutional violation underlying the child's claim that their familial association rights were violated, then there is no violation.

[00:11:03] Speaker 00:
of their rights.

[00:11:04] Speaker 00:
So if the parent's rights were not violated, necessarily the child's rights must fail.

[00:11:10] Speaker 00:
The inverse is not necessarily true.

[00:11:13] Speaker 00:
And that was borne out most recently in this court's decision in Scott v. Smith where the court first analyzed whether the parent's right to be free from excessive force by use of excessive body weight compression leading to his death

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was excessive, the court found that it was.

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And so there was that primary underlying constitutional violation.

[00:11:35] Speaker 00:
The court then separately analyzed whether that conduct could give rise to a familial association claim brought by the relatives of the decedent.

[00:11:46] Speaker 00:
The court found that it could, based on the then current state of the law,

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but found that at the time of the conduct, the right at issue was not clearly established, which is a nearly identical circumstance that this court is confronted with.

[00:12:02] Speaker 00:
We are conceding that within the Ninth Circuit, the right is clearly established now, but it was not at the time of the conduct.

[00:12:14] Speaker 01:
Do you want to reserve some time?

[00:12:16] Speaker 00:
We'll reserve the minute of my time.

[00:12:17] Speaker 01:
Thank you.

[00:12:28] Speaker 04:
Morning.

[00:12:29] Speaker 04:
Is it Mr. Tamora?

[00:12:30] Speaker 04:
Tamora, yes, your honor.

[00:12:32] Speaker 04:
May it please the court.

[00:12:33] Speaker 04:
My name is Richard Tamora.

[00:12:35] Speaker 04:
I represent Pedro, Syria, in this matter, who is the son of Joaquin, the previous case that the court heard.

[00:12:45] Speaker 04:
Pedro, his entire relationship with his father for the last 32 years has consisted of prison visits.

[00:12:54] Speaker 04:
And so the issue for the court to determine in

[00:12:57] Speaker 04:
Pedro's case is whether or not there was a clearly established... I'm sorry, let me... So starting in Smith versus City of Fontana, that's in 1987, the Ninth Circuit established that a child has an interest in the society and companionship of his father, and it further

[00:13:28] Speaker 04:
determined that unwarranted state interference with that interest violates substance of due process.

[00:13:33] Speaker 04:
So that's a 1987 case.

[00:13:35] Speaker 04:
The cases that followed that, including the cases that the defense has cited, starting with Ovando, which is the 2000 case that he cited, and then Lee versus the city of Los Angeles again cited the Smith case for the proposition that constitutional, quote, interest in familial compassionship

[00:13:58] Speaker 04:
and society logically extends to protect children from unwarranted state interference with the relationship of the parents.

[00:14:06] Speaker 04:
And there are cases cited within Lee that reach back to 1987 before the activity in this case that established that right.

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And while we're on Lee, starting at page 34 of our brief, even assuming that the defendant's appellants

[00:14:28] Speaker 04:
a right that Pedro's claimed were not clearly established until 2001.

[00:14:36] Speaker 04:
We also have a claim for a wrongful incarceration, which continued from 2000 and 2001 through April 2022, which is when he was eventually released.

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Now, how that would play out in the district court in terms of proof and damages, I don't know.

[00:14:54] Speaker 04:
I haven't thought that through, but certainly,

[00:14:57] Speaker 04:
for at least 22 years, the right was clearly established for Pedro at that time.

[00:15:05] Speaker 03:
What conduct did these defendants engage in during those... I mean, their conduct was pretty much done, I thought, at the time of the conviction, right?

[00:15:17] Speaker 03:
So what did they... If we were to say that the right only became clearly established in

[00:15:25] Speaker 03:
2001 or that you know what did they do after 2001 well they could be liable for Well they continued to keep him in custody.

[00:15:33] Speaker 03:
That's that's the issue they continue to keep it on these defendants I thought that the only defendants are the officers right so it's You know the the warden or somebody else was keeping him in custody these officers weren't were they but but my response to that your honor is that it's continuing conduct and its conduct that is

[00:15:55] Speaker 04:
necessarily related to the original conduct of the officers.

[00:16:00] Speaker 04:
So while the officers didn't do anything after 2000, certainly the effects of what they did in 1991 continued after 2000.

[00:16:13] Speaker 02:
And so at that... But for purposes of qualified immunity, we're looking at what they did and what the right was.

[00:16:21] Speaker 04:
Well, that's correct, Your Honor.

[00:16:22] Speaker 04:
But again, in 2000,

[00:16:25] Speaker 04:
I guess it's more of a mission at that point, in that the officers didn't do anything when that right was clearly established.

[00:16:32] Speaker 04:
And I didn't brief that particular issue.

[00:16:34] Speaker 04:
But again, as of 2000, there was harm that Pedro suffered.

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And it was due to the genesis of it was from these defendants.

[00:16:55] Speaker 04:
The last, well, two other things.

[00:16:58] Speaker 04:
I did want to address briefly about the Mellon case.

[00:17:02] Speaker 04:
The Mellon case is almost exactly on point with our case.

[00:17:06] Speaker 04:
I think that the district court rightfully cited that case and relied on it.

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I don't think that the defendant's appellants' distinctions are

[00:17:23] Speaker 04:
make a difference in this case with respect to that.

[00:17:26] Speaker 03:
And do you agree that under Mellon, in order for you to win, we need to conclude that there was a violation of Joaquin's 14th Amendment rights?

[00:17:37] Speaker 03:
Is that a necessary element?

[00:17:39] Speaker 03:
Oh, yes.

[00:17:39] Speaker 04:
I agree with that 100%, Your Honor.

[00:17:41] Speaker 04:
To a certain extent, Pedro's rights are derivative of whatever constitutional violations that his father suffered.

[00:17:48] Speaker 04:
I agree with that.

[00:17:49] Speaker 04:
That's the law.

[00:17:50] Speaker 04:
Ultimately, that's a jury question.

[00:17:52] Speaker 04:
Ultimately, that's a jury question.

[00:17:53] Speaker 04:
Of course it is.

[00:17:54] Speaker 04:
It's a jury question as to whether or not there was harm suffered by Pedro at the time.

[00:18:00] Speaker 04:
And so you asked the defendants earlier whether or not if Joaquin's claim fails, Pedro's claims fail.

[00:18:16] Speaker 04:
That's correct.

[00:18:17] Speaker 04:
But just because they succeed doesn't necessarily mean, and I agree with that, that Pedro wins.

[00:18:21] Speaker 04:
That is a factual issue that we would have to prove up to the court to a jury.

[00:18:27] Speaker 04:
I agree with that.

[00:18:28] Speaker 04:
And then the last point I want to make, I'm not going to use up all my time, is that I do think that the law in this circuit is clear with Smith and Lee that there is a right that is clearly established at the time of the violations in this case.

[00:18:45] Speaker 04:
Does the court have any other questions for me?

[00:18:46] Speaker 04:
It appears not.

[00:18:47] Speaker 04:
Thank you.

[00:18:56] Speaker 00:
I'd like to briefly address the argument raised by my opposing counsel here with respect to the officer's obligations after this court issued its decision in Levy City of Los Angeles in 2001.

[00:19:10] Speaker 00:
There's no case that I'm aware of and there's certainly no case that cited

[00:19:14] Speaker 00:
in the answering brief that says that an officer has an obligation to track developments in case law after a conviction is rendered and then take some unspecified action to supposedly correct prior alleged misconduct.

[00:19:30] Speaker 00:
I think that argument

[00:19:32] Speaker 00:
It not only lacks authority, but it also doesn't recognize the practicalities of who is responsible for a convicted person's continued incarceration and what an officer can do at that point.

[00:19:47] Speaker 00:
And I think there's really two issues with that.

[00:19:51] Speaker 00:
Once a person is convicted of a crime and sentenced to a term of incarceration, they are held to that incarceration pursuant to court order.

[00:20:00] Speaker 00:
So it's not like the officers can just go and free that person, say, oh, well, the Ninth Circuit issued its decision in Lee.

[00:20:09] Speaker 00:
We now understand there's a development in the law, and we'd like you to be released from prison.

[00:20:13] Speaker 00:
That's a matter for a habeas court to decide whether to vacate that order of conviction and sentencing order.

[00:20:25] Speaker 00:
I'm just not aware of any case that says that an officer has any type of obligation once new cases are rendered.

[00:20:37] Speaker 03:
Thank you.

[00:20:38] Speaker 03:
Thank you.

[00:20:39] Speaker 03:
We thank both counsel for their arguments.

[00:20:41] Speaker 03:
The case is submitted and we are adjourned for the day.