[00:00:02] Speaker 01:
We'll turn to our second case on the argument calendar.

[00:00:05] Speaker 01:
We'll invite counsel to come up and get settled.

[00:00:57] Speaker 01:
Our last case on the argument calendar is case 24-595, the State Administrative Services versus City and County of Honolulu.

[00:01:06] Speaker 01:
Mr. Seitz.

[00:01:12] Speaker 00:
Good morning.

[00:01:13] Speaker 00:
Thank you for the opportunity to be here this morning.

[00:01:16] Speaker 00:
With me at the council table is Jonathan Liu, who is my associate.

[00:01:24] Speaker 00:
This case, as you know, is about a helpless, homeless, mentally ill, obviously fragile woman who could not care for herself.

[00:01:36] Speaker 00:
She was arrested for being homeless, not for hurting anybody or threatening anybody or damaging anybody's property.

[00:01:43] Speaker 00:
She was arrested for being homeless.

[00:01:46] Speaker 00:
She was taken 25 miles from the area where she was arrested and where she is familiar.

[00:01:54] Speaker 00:
and she was released five hours later without any means to get back to where she came from with no cell phone, no money, absolutely no way to retrace the steps that the police officers had taken when they brought her to the police station where she was basically first booked and then allowed to be released without bail.

[00:02:19] Speaker 02:
Counsel, what is the duty of care that the defendants owed Ms.

[00:02:21] Speaker 00:
Johnson?

[00:02:24] Speaker 00:
In this case, the duty that they owed to Ms.

[00:02:29] Speaker 00:
Johnson was basically not to put her in a position of aggravated risk.

[00:02:36] Speaker 00:
That's the duty, and that largely is what comes from Wood v. Ostrander and the cases that we've cited, which come from all over the country.

[00:02:45] Speaker 00:
You don't arrest somebody and then leave them in some place where they could get raped, which is what happened in Ostrander.

[00:02:52] Speaker 00:
You don't arrest somebody who's the driver of a car and leave his wife in the car who's inebriated who ultimately falls and almost kills herself.

[00:03:01] Speaker 00:
You don't send somebody who's out of a bar out into the street with extremely cold weather who then freezes to death and has no way to get home.

[00:03:11] Speaker 00:
And again, I think that in this case, there clearly was a duty not to aggravate the danger that this woman faced, knowing already that she was fragile and had no resources to help herself.

[00:03:25] Speaker 00:
That is the fundamental duty.

[00:03:28] Speaker 00:
Now, the government argues, was it foreseeable that something would happen to her?

[00:03:32] Speaker 00:
Of course it was foreseeable, for all the reasons set forth in all of those other cases.

[00:03:38] Speaker 00:
This woman could not help herself.

[00:03:41] Speaker 00:
Whether she fell down, whether she didn't eat, whether she was somehow molested or beaten to death is what happened here.

[00:03:47] Speaker 00:
It was foreseeable that she was in the way of harm at risk.

[00:03:54] Speaker 00:
And then the situation was aggravated by the police.

[00:03:58] Speaker 00:
when they released somebody who was absolutely violent, who was clearly mentally ill, who had just assaulted two people, including a police officer, and who was on furlough from the mental hospital.

[00:04:11] Speaker 00:
And they just released him, knowing that Mrs. Johnson was there, and therefore created, specifically created an additional risk, which led to her death.

[00:04:24] Speaker 01:
Did they know she was still there when they released Armstrong?

[00:04:28] Speaker 00:
Yes, she remained on the premises, and one reason we know that was because somewhere along the lines, a lieutenant called, very nicely, called a person who'd been providing mental health care for this, for Mrs. Johnson, to tell him that she was there on the premises and had no way to get back to Waikiki.

[00:04:48] Speaker 01:
That was the night before, though?

[00:04:50] Speaker 00:
That, I think it was during the night sometime.

[00:04:52] Speaker 00:
We're not exactly sure when that happened.

[00:04:56] Speaker 00:
We also know that the police knew that this beating was going on because a witness came in and reported it.

[00:05:02] Speaker 00:
And a police officer who was at the desk

[00:05:05] Speaker 00:
took no steps.

[00:05:07] Speaker 00:
Now, we only just recently learned that police officer was fired because of her misconduct, her negligence.

[00:05:13] Speaker 00:
We only found that out last week in a public report that the police are required to make to the legislature every year for disciplinary actions they take against police officers.

[00:05:25] Speaker 01:
I take it this is not in the record here?

[00:05:27] Speaker 00:
It's not in the record because we only got that report last week.

[00:05:31] Speaker 01:
Are you saying she was terminated due to this incident or something else?

[00:05:36] Speaker 00:
Yes, absolutely.

[00:05:38] Speaker 00:
She was terminated because she ignored what was going on outside and she was fired for that reason specifically.

[00:05:45] Speaker 00:
Now, there's no question in our minds as to foreseeability here.

[00:05:50] Speaker 00:
Absolutely no question.

[00:05:52] Speaker 00:
It was foreseeable because this woman was so fragile

[00:05:56] Speaker 00:
that there were a whole variety of risks that she faced by just letting her out the door and taking no steps to see to it that she could retrace her steps.

[00:06:06] Speaker 02:
If Ms.

[00:06:06] Speaker 02:
Johnson hadn't been fragile, let's say she was perfectly fine but could not get back to Waikiki on her own, is allowing Mr. Armstrong to be released still giving rise, and let's assume he does the same thing, he hurts her, kills her, would we still be here?

[00:06:23] Speaker 00:
I would still be here whether or not we'd have the stronger case or not because I've done a case like that in the past in state court here where somebody was released from the mental hospital and that's in the record actually in the transcript.

[00:06:35] Speaker 00:
We argued that to Judge Kobayashi where a person was released from the state hospital, walked out to a bus stop out in front of the state hospital and beat our client to death.

[00:06:45] Speaker 00:
So yes, I would still be here.

[00:06:47] Speaker 00:
Whether it provides a sufficient showing under federal law as to foreseeability and liability in civil rights context, I don't know, but I think it certainly does.

[00:06:59] Speaker 00:
And in any event, I believe based on all those cases that we've cited, and there are several of them, the Wood versus Ostrander series of cases in our brief, I don't believe those cases can be ignored.

[00:07:14] Speaker 00:
I think by failing to apply that line of cases in this case, it would effectively just overrule those cases and say there's no duty.

[00:07:21] Speaker 00:
When you have somebody who's fragile,

[00:07:23] Speaker 00:
who you just release into a situation where it becomes more dangerous for that person than under normal circumstances.

[00:07:33] Speaker 00:
The second issue that we're very concerned about here, we filed this case in state court.

[00:07:39] Speaker 00:
It was removed to federal court.

[00:07:41] Speaker 00:
Judge Kobayashi, instead of just sending it back to the state courts to determine the issues of premises liability and the state law negligence claims, reached out and ruled on them, and I do not, frankly, after all this time, understand her ruling.

[00:07:57] Speaker 00:
At some point during the oral argument, she commented, well, Ms.

[00:08:01] Speaker 00:
Johnson was not a business visitor on the premises of the police station, but that really has very little to do, as far as I can tell, with the issues in this case.

[00:08:09] Speaker 00:
In our view,

[00:08:11] Speaker 00:
Even if Judge Kobayashi was correct as to the federal claims of action, she should have remanded the case back to the state courts to determine what the extent of the liability was under the negligence claims that we brought.

[00:08:25] Speaker 00:
If you agree with Judge Kobayashi, and I certainly hope you don't, then I would at least request of you that you send the matter back with instructions that it be returned to the state courts for adjudication of the negligence claims.

[00:08:41] Speaker 01:
We go back to some of the deliberate indifference.

[00:08:43] Speaker 01:
One question I had is the level of generality you're asking us to use here because

[00:08:52] Speaker 01:
One argument could be when you released from custody a homeless person who is far away from her normal area, she's going to be subjected to some harm.

[00:09:05] Speaker 01:
We don't know what that is, but it's something.

[00:09:07] Speaker 01:
Another way of, a more tighter argument is to say she would be subjected to this harm, the harm that ultimately came to befall her here.

[00:09:16] Speaker 01:
What are you arguing as between those two?

[00:09:19] Speaker 00:
Well, again, Judge Bress, I think you've got to look at Wood v. Ostrander, which is the primary case on which we rely.

[00:09:25] Speaker 00:
You know, in that case, the driver of the vehicle was arrested, the woman was left.

[00:09:31] Speaker 00:
There was no specific rest.

[00:09:33] Speaker 00:
She was apparently a dangerous part of town, and she was raped by somebody who came along and offered her a ride.

[00:09:39] Speaker 00:
That wasn't specifically foreseeable.

[00:09:42] Speaker 00:
And I think if you go through all of those cases, now the cases of cold weather, I guess you can sort of indicate, well, they should have known because there was cold weather, people freeze when you go outside.

[00:09:52] Speaker 00:
But the cases involving the woman who was inebriated, whose husband was arrested for drunk driving, the case where the three kids were left in the car, you didn't have specific risks

[00:10:03] Speaker 00:
Those were situational allegations where there was a general danger to these people that was aggravated by the actions or omissions of the police.

[00:10:14] Speaker 00:
And in that situation, the courts have found a duty.

[00:10:17] Speaker 00:
And I think that's correct.

[00:10:19] Speaker 00:
And I think clearly in this case, this woman, if they'd given her bus fare,

[00:10:25] Speaker 00:
if they'd helped her get on a bus, or if they'd helped her call somebody who could come get her and bring her back.

[00:10:31] Speaker 00:
When she wasn't homeless, she was living in facilities that were provided for homeless people in the Waikiki area.

[00:10:39] Speaker 00:
And she had a mental health counselor who was helping her from time to time.

[00:10:42] Speaker 02:
Didn't they call?

[00:10:44] Speaker 00:
No, they did not.

[00:10:46] Speaker 00:
Not well.

[00:10:47] Speaker 00:
Only the lieutenant called to tell that guy that she's still out here.

[00:10:51] Speaker 00:
That was the one call.

[00:10:53] Speaker 00:
But she had already been released for several hours by that time, and she was hanging around on the police station premises.

[00:10:59] Speaker 00:
That's the one call that was made, hey, do you know that the person you're helping is out here?

[00:11:05] Speaker 00:
And he said no, he didn't know.

[00:11:08] Speaker 00:
But then after that, nothing happened.

[00:11:10] Speaker 00:
Now maybe he could have come and gotten her.

[00:11:12] Speaker 00:
I don't know, he works for apparently, so we've never talked to him.

[00:11:16] Speaker 00:
And you know, apropos of something that came up in the previous argument, in this case, bear in mind that discovery was cut off when the motion to dismiss was filed.

[00:11:26] Speaker 00:
We were only given the police reports and we were told that we could not conduct further discovery.

[00:11:33] Speaker 00:
So all we have is the police reports.

[00:11:36] Speaker 00:
In my view, it would have been very easy to take depositions and conduct discovery in this case to create much more specific facts.

[00:11:46] Speaker 00:
to determine what the circumstances were at every stage of this when Ms.

[00:11:51] Speaker 00:
Johnson was arrested when she was released and who was responsible for all of the events that ensued.

[00:11:57] Speaker 00:
But we were not given that opportunity.

[00:11:59] Speaker 00:
In my view, this is not a case that should have been resolved on a motion to dismiss.

[00:12:04] Speaker 00:
Based on the case law that we've cited to you, there were certainly many cases that speak to foreseeability and speak to the nature of the duty that certainly should have gotten us by a motion to dismiss.

[00:12:15] Speaker 02:
So the duty extends beyond them calling and saying, hey, we've released this person who we know appears to have issues.

[00:12:23] Speaker 02:
We know you're working with her.

[00:12:24] Speaker 02:
Why is that not enough?

[00:12:28] Speaker 00:
Well, I don't believe that extinguished the duty because it didn't provide any relief to her in terms of a way to get home, a way to get back to where she was familiar, a way to get back to people who could help her.

[00:12:39] Speaker 00:
It was just alerting somebody, hey, this person's in danger.

[00:12:43] Speaker 00:
In fact, in some respect,

[00:12:45] Speaker 00:
The fact that they made that call, in our view, strengthens the claim that they knew that this woman was in danger and was at risk.

[00:12:54] Speaker 00:
But in my view, the duty was further than that, yes.

[00:12:57] Speaker 00:
You don't leave kids in a car at night and require them to cross an eight lane highway to look for help.

[00:13:05] Speaker 00:
You don't leave somebody inebriated in a car who is likely to have an experience which is gonna be harmful to her.

[00:13:12] Speaker 02:
Unlike your car analogy though about the kids having across the highway, they did call.

[00:13:20] Speaker 02:
In that situation, there was no call.

[00:13:21] Speaker 02:
In this situation, there was a call.

[00:13:23] Speaker 02:
The person that they called though, and I understand your position, we haven't done discovery judge, we don't know what really happened yet, but they did call.

[00:13:31] Speaker 00:
Yes, there was one call, but I don't believe that was any impact whatsoever on reducing the risks that this woman faced in the timeframe that she did, which led up until her death.

[00:13:45] Speaker 00:
I don't believe it had any impact whatsoever.

[00:13:47] Speaker 00:
It was nice that they called.

[00:13:49] Speaker 00:
It reflects that they knew that she was in danger and at risk, but it didn't alleviate or reduce the risk in any manner whatsoever.

[00:13:57] Speaker 02:
Is there any requirement that they had to act with malice?

[00:14:01] Speaker 00:
There is a requirement under negligence law for the state of Hawaii as to employees of police departments and city and state employees that they have to act with malice.

[00:14:12] Speaker 00:
In our view, based on what we just found out about the officer who was fired, I think factually we could prove that.

[00:14:21] Speaker 00:
But we haven't done discovery on that issue because it hasn't been provided to us.

[00:14:26] Speaker 00:
But yes, I think we can prove malice in this case.

[00:14:30] Speaker 00:
This is a horrific case.

[00:14:34] Speaker 01:
You want to save some time for rebuttal?

[00:14:36] Speaker 00:
No, I'm done.

[00:14:36] Speaker 00:
Thank you, Rex.

[00:14:38] Speaker 00:
I've got a minute and a half.

[00:14:39] Speaker 00:
We'll see what happens, but I appreciate it.

[00:14:41] Speaker 01:
We'll invite you back up for rebuttal.

[00:14:43] Speaker 01:
Thank you.

[00:14:43] Speaker 01:
Thank you.

[00:14:44] Speaker 01:
Thank you all.

[00:14:58] Speaker 03:
Good morning, Your Honors.

[00:14:59] Speaker 03:
Catherine Nesty, Deputy Corporation Counsel here on behalf of the City and County of Honolulu.

[00:15:05] Speaker 03:
I just want to start with what I've heard from plaintiffs' counsel this morning does not change the fact that they have not plausibly pled in their first amended complaint

[00:15:19] Speaker 03:
any of the alleged facts to support the moving force requirement, first of all, in regards to the temporary transport directive and the arrest policy proximate causing Ms.

[00:15:35] Speaker 03:
Johnson's death, nor have they plausibly pled the state created danger exception in regards to any officer's affirmative action creating a particularized danger

[00:15:49] Speaker 03:
to Linda Mae Johnson of being beaten to death by Mr. Armstrong.

[00:15:55] Speaker 03:
And finally, in regards to the negligence claim, plaintiff still in the first amended complaint has not plausibly pled any recognized special relationship that would create a duty or has not shown any officer acted with actual malice toward Ms.

[00:16:11] Speaker 03:
Johnson in order to sustain that negligence claim.

[00:16:15] Speaker 03:
If I may address a few of the things that Plaintiffs' Council had stated this morning.

[00:16:22] Speaker 03:
He pointed to the phone call from the Lieutenant, Lieutenant Wong, calling to say that, I believe he stated that she was there on the premises still.

[00:16:34] Speaker 03:
That is not in the record.

[00:16:36] Speaker 03:
If you look at what's in the actual first amended complaint, there's one reference to the phone call.

[00:16:44] Speaker 03:
by the lieutenant, that is in paragraph 18, and it simply said that it was at 10.15 on the evening that she was released, saying that she had been taken into custody, she was unable to care for herself, was suffering from paranoia and anxiety, but nowhere in the record does it say that the lieutenant knew that she was still on the premises.

[00:17:15] Speaker 03:
In regards to plaintiff's counsel's comment as to Officer Caesar, again, that new information is not in the record.

[00:17:27] Speaker 03:
We were not provided with that information prior to today's argument.

[00:17:32] Speaker 01:
My comment about Officer Caesar- Are you referring to the determination of Officer Caesar?

[00:17:37] Speaker 01:
Is that what you're referring to?

[00:17:38] Speaker 03:
Yes.

[00:17:38] Speaker 03:
Yes, Your Honor.

[00:17:40] Speaker 03:
Specifically speaking to Officer Caesar's actions in this case as it's pled in the first amended complaint, it only alleges in paragraph 21 that a bystander, Mr. Smith,

[00:17:57] Speaker 03:
informed Officer Caesar that a woman outside was in need of emergency assistance.

[00:18:04] Speaker 03:
It doesn't identify who that woman was.

[00:18:06] Speaker 03:
It doesn't allege that Officer Caesar knew that that woman was Linda Mae Johnson.

[00:18:11] Speaker 03:
It also doesn't allege that she, that Officer Caesar knew that Linda Mae Johnson was in

[00:18:18] Speaker 03:
in any position to be threatened, to be assaulted by Mr. Armstrong, which I think plaintiff's counsel has mentioned in his argument today, something specific about Mr. Armstrong, or knowing that Mr. Armstrong was out there with Ms.

[00:18:34] Speaker 03:
Johnson and that he was beating her to death.

[00:18:36] Speaker 03:
That is also not in the record before you that anyone knew on behalf of HPD that Ms.

[00:18:43] Speaker 03:
Johnson was being beaten to death at the time that she was beaten to death.

[00:18:49] Speaker 02:
So they may not have known that it was Miss Johnson in particular, but they were put on notice that somebody was being beaten, correct?

[00:18:57] Speaker 03:
After the fact.

[00:18:58] Speaker 03:
So after Mr. Smith, the bystander, he had notified Miss Officer Caesar that there was a woman outside who was in need of whatever emergency assistance is meant to be, but not that she was being beaten.

[00:19:15] Speaker 03:
And then Mr. Smith went back into the police station

[00:19:19] Speaker 03:
And it wasn't until after she had already been beaten that he had, Mr. Smith had realized that she had been beaten.

[00:19:26] Speaker 03:
He went back into the station according to the complaint, banged on the door, wasn't able to get anyone to respond, called 911.

[00:19:34] Speaker 03:
So that's the actual notice to HPD is actually the phone call to 911 after she had already been beaten by Mr. Armstrong.

[00:19:43] Speaker 01:
Your opposing counsel talked about Wood versus Ostrander, which involved the woman who was dropped off in the middle of the night in the neighborhood known to be unsafe and analogized to this case.

[00:19:55] Speaker 01:
And how do you respond to that?

[00:20:01] Speaker 03:
My response to that would be to refer you to the Sinclair Ninth Circuit case that makes it clear that the

[00:20:11] Speaker 03:
the danger has to be particularized and directed to a specific victim.

[00:20:17] Speaker 03:
And so in this case, unlike in Wood, I don't think any officer was aware that Ms.

[00:20:26] Speaker 03:
Johnson was going to be exposed to Mr. Armstrong's assault on her.

[00:20:34] Speaker 01:
Right, but I think what Mr. Seitz would say is, well, we don't know that, but we think that releasing somebody who's homeless and who's not mentally stable into an area that she's not familiar with, that's likely to end in something bad, whether it's Mr. Armstrong or something else.

[00:20:50] Speaker 01:
And he would say that's, I'm paraphrasing what I think his argument is, but I think he would say that's sufficient.

[00:20:58] Speaker 03:
And again, I would come back to it being a specific harm, that being the assault by Mr. Armstrong on Ms.

[00:21:06] Speaker 03:
Johnson.

[00:21:09] Speaker 03:
My position is it's not sufficient for there to just be a generalized harm to the general public.

[00:21:15] Speaker 03:
It has to be specific, the specific harm to the specific victim.

[00:21:19] Speaker 01:
And where are you drawing that from, the case law, or which cases are you referring to?

[00:21:23] Speaker 03:
Yes, specifically the Sinclair case.

[00:21:28] Speaker 03:
Sorry, I don't have a citation for you, but I could get one if you needed it.

[00:21:40] Speaker 02:
So this would be a different case than if Mr. Armstrong had specifically stated he was going to harm.

[00:21:47] Speaker 02:
I'm going to get her when I'm, you know, released.

[00:21:51] Speaker 02:
That's the difference.

[00:21:52] Speaker 02:
Am I understanding you correctly?

[00:21:54] Speaker 03:
Yes, I think that's right.

[00:21:55] Speaker 03:
I think he had to.

[00:21:56] Speaker 03:
There would have had to been that victim.

[00:22:00] Speaker 03:
He would have had to have known and what that harm would have been to her.

[00:22:04] Speaker 03:
Right.

[00:22:05] Speaker 03:
In this case, I think it's only generally pled in the first time in a complaint that there are 15 states transporting the arrestees to Kapolei police station.

[00:22:21] Speaker 03:
might cause serious problems for persons like Linda Mae Johnson.

[00:22:26] Speaker 03:
But then those problems that are identified within the complaint are not having resources to obtain shelter, mental health care, substance abuse treatment, or other essential services, which is not that she would be subject to an assault by a third party arrestee who gets released more than 30 hours after her release.

[00:23:00] Speaker 03:
I'm happy to answer any other questions that the court may have.

[00:23:06] Speaker 01:
I think we've exhausted them, so thank you very much.

[00:23:08] Speaker 03:
Thank you.

[00:23:21] Speaker 00:
In light of your discussion with opposing counsel, I just want to call your attention again to our reply brief

[00:23:28] Speaker 00:
at page six, and there's a quote there from the Ninth Circuit in a case entitled Kennedy versus City of Ridgefield, and I think it very accurately characterizes what the court found in Wood versus Ostrander.

[00:23:42] Speaker 00:
And again, bear in mind, in Wood versus Ostrander, the victim in that case was able-bodied.

[00:23:48] Speaker 00:
She didn't have any disabilities of any sort, but what the court said in the middle of that

[00:23:54] Speaker 00:
page is we have never required that for a danger to exist, the exact injury inflicted by a third party must have been foreseeable.

[00:24:03] Speaker 00:
Instead, the state actor is liable for creating the foreseeable danger of injury given the particular circumstances.

[00:24:11] Speaker 00:
For example, in Wood, we did not speculate nor require that Trooper Ostrander foreseeably knew that Wood would in fact be raped by a passing motorist.

[00:24:22] Speaker 00:
We held he could be liable, however, for leaving Wood in a situation more dangerous than the one she already faced, i.e.

[00:24:31] Speaker 00:
for stranding her alone in a known high-crame area at 2.30 in the morning.

[00:24:38] Speaker 00:
I think that is dispositive language, and I would urge you, please, to consider that.

[00:24:43] Speaker 00:
Thank you again.

[00:24:44] Speaker 01:
Thank you.

[00:24:45] Speaker 01:
We thank both counsel for their arguments.

[00:24:47] Speaker 01:
This case is submitted.

[00:24:49] Speaker 01:
That concludes our calendar for the week.

[00:24:50] Speaker 01:
We want to thank the court staff here at the Bankruptcy Court and also the Ninth Circuit staff for their help in coordinating our sitting.

[00:24:57] Speaker 01:
And I want to personally thank Judges Thomas and De Alba for a wonderful week of hearing cases with both of you.

[00:25:03] Speaker 01:
And that concludes our day.

[00:25:04] Speaker 01:
Thank you.