[00:00:00] Speaker 04:
call the final case for today, John Balvo.

[00:00:31] Speaker 04:
Proceed yes counsel state your parents, and you may proceed May it please the court.

[00:00:37] Speaker 01:
I am andrew brosinski, and I represent the appellant Gabriela GM balvo, and I'd like to reserve two minutes for rebuttal very well This case is critically different from this court's decision in Mayfield the city of Mesa For these reasons one there was an immediate availability of

[00:00:58] Speaker 01:
and rapid accessibility of a sign language interpreter via video remote interpreting, accessible within minutes of need.

[00:01:09] Speaker 01:
Two, there were documented complete failures of Ms.

[00:01:13] Speaker 01:
Giambalvo's hearing, which allowed her to not be able to communicate during material aspects of her processing and arrest.

[00:01:25] Speaker 01:
And what those material aspects were was in the drug recognition exam.

[00:01:30] Speaker 01:
During the drug recognition exam, Ms.

[00:01:32] Speaker 01:
Giambalvo was, her hearing aid had completely died at that point.

[00:01:37] Speaker 01:
And constantly in the record, you see instances, I can't hear you.

[00:01:43] Speaker 01:
I can't understand.

[00:01:44] Speaker 01:
I don't know what you're saying.

[00:01:45] Speaker 01:
My hearing aid has died.

[00:01:47] Speaker 01:
This is after she had specifically requested a sign language interpreter.

[00:01:52] Speaker 01:
And Mr. Officer Nardini,

[00:01:55] Speaker 01:
specifically said he would provide one if there were any communication difficulties, which there were, and he failed to do so.

[00:02:03] Speaker 01:
Also, their own policies state that, for Miranda warnings, that they cannot

[00:02:11] Speaker 03:
ascertain you know on the on the DRE I Mean my review and we've all looked at the video of course just presents a different factual scenario than the one That you're you're talking about.

[00:02:26] Speaker 03:
I mean like just for example The police officer is at one point saying so again We'll do the 30 seconds stand again with your feet together and the response from your client is okay, so nine times and

[00:02:40] Speaker 03:
So there, I'm having difficulty seeing where the real hindrance was here as opposed to I understand what everybody was saying, but I'm having difficulty understanding where the real hindrance was.

[00:02:59] Speaker 01:
Sure.

[00:02:59] Speaker 01:
I can give you an example.

[00:03:01] Speaker 01:
Sure.

[00:03:01] Speaker 01:
If you look at the body cam video at an hour and 49 minutes and 32 seconds,

[00:03:06] Speaker 01:
There is interactions regarding a drug recognition test and officer Nardini Is trying to conduct the test and she says what I can't hear you and then he abandons That portion of the drug recognition exam and says you know what it's fine.

[00:03:23] Speaker 03:
Don't worry about that But but but then like it to 18 there is a detailed conversation about

[00:03:35] Speaker 03:
her saying, you know, I just wanted to get home, et cetera.

[00:03:40] Speaker 03:
And clearly she is trying to explain to him why she didn't do anything wrong.

[00:03:47] Speaker 03:
And he's saying, well, even if you really had to get home, you still have to stop at the stop sign.

[00:03:51] Speaker 03:
And I'm reading this at

[00:03:53] Speaker 03:
And that's certainly toward the end.

[00:04:02] Speaker 01:
So whether there was understanding or not.

[00:04:08] Speaker 01:
For instance, you could have some understanding of a different language, say German, for instance.

[00:04:14] Speaker 01:
And someone could communicate with you or gesture to you in German.

[00:04:17] Speaker 01:
And you could technically respond appropriately or ascertain the gist of maybe what they're saying.

[00:04:25] Speaker 01:
And that doesn't mean necessarily that you understand.

[00:04:27] Speaker 01:
There is testimony both from Officer Nardini that he recognizes that she didn't understand at various points of the interaction.

[00:04:37] Speaker 01:
There's her own testimony that says she didn't understand critical points of the interaction.

[00:04:44] Speaker 01:
And we're at the summary judgment stage.

[00:04:46] Speaker 01:
The fact that we can have this debate.

[00:04:48] Speaker 01:
is perfect reason why that there are questions of material fact as to what she understood, how she understood it, whether the video, what it looks like she understood, did she in fact understood, or was she just guessing, responding appropriately, and maybe thought that he said something else?

[00:05:08] Speaker 03:
But the test, as the district court found, is real hindrance.

[00:05:12] Speaker 03:
So in order for you

[00:05:15] Speaker 03:
To move on in the case there would have to be a disputed issue of fact as to whether there was a real hindrance I I don't question the fact that there was a hearing disability That's obvious and undisputed and you had plenty of evidence of that including an expert But where I'm having trouble with is seeing

[00:05:35] Speaker 01:
Where the real hindrance was when you look at this from start to finish right so let me let me give you an example so based on the Communications during the drug recognition exam it was often officer nardini established that she was impaired by intoxicants However as we later found out with the blood draw there were absolutely no intoxicants in her system

[00:06:00] Speaker 01:
And so whether that material aspect of the drug recognition exam was effective or not effective, was a material hindrance or not a material hindrance, is a disputed fact.

[00:06:15] Speaker 01:
And that has borne out by the test being unreliably found that she had intoxicants in her system when the blood test showed otherwise.

[00:06:26] Speaker 01:
I think that's a real material hindrance

[00:06:29] Speaker 01:
Especially at the summary judgment standards that we're at right now where a fact-finder can determine Whether she completely understood everything based on the video based on her testimony based on officer Ardini's testimony or And whether certain aspects whether it's the drug recognition exam the Miranda warnings the blood draw consent the explanation of the charges whether whether she

[00:06:53] Speaker 01:
Truly understood or didn't and I think that those are material aspects that at least Should go to a fact finder they may completely agree upon looking at the video it looks like she understood everything looks like She she got whatever she needed for those material aspects and the jury instructions will inform the jury as to

[00:07:16] Speaker 01:
What what aspects are material through the interactions and they will determine?

[00:07:21] Speaker 01:
Whether based on credibility determinations based on the evidence Whether or in fact there there what they did meet the standard or they didn't meet the standard let me ask you this council Hypothetically if we were to agree with you that this should go to a jury What relief are you ultimately seeking in this case?

[00:07:42] Speaker ?:
I?

[00:07:42] Speaker 04:
What are what is the remedy what is the damages?

[00:07:45] Speaker 01:
I'm trying to understand what the endgame is here Sure, so the remedy that would that would occur here is you know everyone is entitled to advocate for their civil rights and to the extent that the They didn't follow their own policies that they didn't follow what they were supposed to and

[00:08:05] Speaker 01:
in terms of providing an interpreter for the Miranda warnings and providing the interpreter that was readily accessible for the drug recognition questions.

[00:08:15] Speaker 01:
A finding in her favor would establish to police departments

[00:08:20] Speaker 01:
Hey, you know, you got to know this is the law.

[00:08:23] Speaker 01:
You got to follow.

[00:08:23] Speaker 04:
I get the idea that you want the legal ruling, but usually we're in the business of whether there's relief to be given like like either money or something.

[00:08:33] Speaker 04:
So I'm just trying to understand like what let's say a judgment is rendered in your clients favor.

[00:08:39] Speaker ?:
Yes.

[00:08:39] Speaker 04:
It can't just be, you know, police do a better job.

[00:08:42] Speaker 04:
That's advisory.

[00:08:43] Speaker 04:
So what is the injury that you're trying to get compensation for here?

[00:08:48] Speaker 01:
The injury is the violation to her civil rights.

[00:08:51] Speaker 01:
And as the Supreme Court said in the Uzubugnam case,

[00:08:55] Speaker 01:
that even in that case it involves a person who was providing religious literature on campus, on his college campus.

[00:09:05] Speaker 01:
And he had already graduated at that point and he didn't have any entitlement to damages.

[00:09:09] Speaker 01:
He didn't have injunctive relief because it was moot.

[00:09:12] Speaker 01:
And what the court said is that for the violation of the civil rights, he's entitled to nominal damages.

[00:09:17] Speaker 04:
OK, so that would be nominal damages.

[00:09:19] Speaker 04:
Yes.

[00:09:19] Speaker 04:
That's all I'm trying to understand, that there is something at the end of the rainbow here.

[00:09:23] Speaker 04:
If you win, there is some reward that the district court would be.

[00:09:28] Speaker 01:
Absolutely.

[00:09:30] Speaker 01:
And I think that people advocating for their civil rights is important.

[00:09:37] Speaker 01:
And to the extent that she approves her claim, she should be entitled to, because I do think that findings in this area

[00:09:43] Speaker 04:
Does push the push the law for and again that I I get the idea as a litigator.

[00:09:48] Speaker 04:
Why you want to bring this case Yeah, I'm just trying to understand because it's not like she's going to undo the the traffic violations those are done So what this is it's not about that so there is some sort of nominal damage or nominal award that you be seeking Okay, absolutely Any other any other questions you want to reserve yes, I'll reserve the render my time for a bottle very good I

[00:10:22] Speaker 02:
Good morning your honors and may it please the court My name is Matt Mansfield, and I'm here on behalf of the city of Tempe Arizona and we represent officer now sergeant Anthony Nardini and the city I Have to kind of disagree wholeheartedly with Appellants Council.

[00:10:42] Speaker 02:
I think this case is all about Mayfield.

[00:10:45] Speaker 02:
I think the district court

[00:10:47] Speaker 02:
Properly predicted that the Ninth Circuit would sort of adopt the the the interpretation of the ADA in the context of an arrest of the 11th Circuit and I think that's what happened in Mayfield just two months ago To reverse the district difference between this case in Mayfield is that in Mayfield?

[00:11:07] Speaker 00:
There was no interpreter available.

[00:11:10] Speaker 00:
They tried and there and there wasn't one here in

[00:11:13] Speaker 00:
They didn't try so I why isn't that a critical difference because it's I think that is a critical difference.

[00:11:20] Speaker 02:
I mean one thing we have to look at

[00:11:24] Speaker 02:
First of all, the request.

[00:11:25] Speaker 02:
I mean, the request for an interpreter came after the arrest, which is we're after reasonable suspicion for the stop, we're after probable cause has been established for the arrest.

[00:11:35] Speaker 02:
So this is a post arrest request.

[00:11:39] Speaker 00:
Although there's also a requirement that an accommodation be made where it's obvious that one is needed, and it was right at the beginning of this encounter.

[00:11:49] Speaker 00:
That Ms.

[00:11:51] Speaker 00:
Chiamboval made clear to the officer that she

[00:11:54] Speaker 00:
had a hearing impairment.

[00:11:56] Speaker 00:
So I'm not sure that we can say that it wasn't obvious until after the arrest.

[00:12:01] Speaker 02:
Well, it's not necessarily after the arrest.

[00:12:03] Speaker 02:
You have to take the context of the interaction for the first 20 minutes from when Officer Nardini rolls up on to Ms.

[00:12:12] Speaker 02:
Giambalvo, who points to her right away.

[00:12:14] Speaker 02:
It's very clear that she has a hearing impairment.

[00:12:17] Speaker 02:
She says she's hard of hearing.

[00:12:20] Speaker 02:
She acknowledges that she's wearing her hearing aid.

[00:12:23] Speaker 02:
And she didn't request an interpreter at that point.

[00:12:26] Speaker 02:
Now they go through an investigation, and this is a criminal investigation, and so Officer Nydini is trained to be cognizant of people's constitutional rights and their other rights, as well as gathering up information about the suspect and about the

[00:12:42] Speaker 02:
the crime that has been suspected it's been committed.

[00:12:45] Speaker 02:
So by the time she asked this question, he has 20 minutes of experience communicating with her, going through the FSTs.

[00:12:53] Speaker 02:
She is speaking in plain English and other than a few, you know, can you repeat that?

[00:13:00] Speaker 02:
I didn't hear that.

[00:13:01] Speaker 02:
They're outside.

[00:13:02] Speaker 02:
There's traffic noise.

[00:13:03] Speaker 02:
Other than a few little hookups, that's near perfect communication because she's responding appropriately to his questions.

[00:13:10] Speaker 02:
So then when she asks his response is that no I'm not going to get you an interpreter it's sure I can get you an interpreter.

[00:13:18] Speaker 02:
Sure yeah I mean I know quite a bit of sign language that's why I was signing to you before so I can sign you if there's anything you don't understand that you're having difficulty with then.

[00:13:30] Speaker 02:
I can get online and have a digital interpreter also.

[00:13:33] Speaker 00:
Ms.

[00:13:33] Speaker 00:
Jambalvo's testimony is that, in fact, Officer Nardini wasn't using American sign language, that he was gesturing.

[00:13:42] Speaker 00:
And there's a big difference between gesturing and sign language.

[00:13:45] Speaker 00:
Effectively, he was speaking to her just in some other language that wasn't actually her language.

[00:13:53] Speaker 00:
I also, in that portion of

[00:13:57] Speaker 00:
the record that you're referring to, I seem to hear her say, well, he says to her, I mean, I know quite a bit of sign language, that's why I was signing to you before.

[00:14:07] Speaker 00:
If there's anything you don't understand, you're having difficulty with, then I can also get online and have a digital interpreter also.

[00:14:14] Speaker 00:
okay, fair, she seems to begin to say, no, but I'm, and then the encounter goes on.

[00:14:20] Speaker 00:
So, you know, at that point, I'm not sure that the request for an interpreter is really being respected.

[00:14:28] Speaker 02:
And I guess, you know, I read that as if she had mentioned it again or said anything else about an interpreter or talked about really having difficulty understanding the interaction.

[00:14:39] Speaker 02:
I mean, this interaction goes on now after that point for another hour and a half.

[00:14:45] Speaker 02:
And you're just watching the video.

[00:14:46] Speaker 02:
I mean, it's almost at one point she's commenting about,

[00:14:50] Speaker 02:
the music being played in the DUI van.

[00:14:53] Speaker 02:
She's laughing and joking with people.

[00:14:54] Speaker 02:
She's not just communicating.

[00:14:56] Speaker 02:
This is really the distinction between Mayfield and this case.

[00:15:00] Speaker 02:
Mayfield talked about how the plaintiff wasn't wearing a hearing aid that helped with the communication.

[00:15:08] Speaker 02:
Here, Jean Valvo is wearing a hearing aid that her own audiologist says renders her speech understanding excellent.

[00:15:19] Speaker 02:
So I think what Nardini is questioning is... Excellent with amplification.

[00:15:23] Speaker 02:
With amplification, that's the hearing aid.

[00:15:25] Speaker 02:
And she's wearing the hearing aid.

[00:15:27] Speaker 02:
The battery in the hearing aid does not die until an hour and 20 minutes into the interaction after the FSTs, after the arrest, after the blood draw, after the DREs were stopped because the hearing aid died.

[00:15:43] Speaker 03:
And she expressed that difficulty.

[00:15:44] Speaker 03:
And so part of your point, I take it, is at that point,

[00:15:47] Speaker 03:
even if something else maybe could have happened that we were past the point of real hindrance.

[00:15:55] Speaker 02:
We're past the point of real hindrance and we're also, you know, I think Nardini has the right to question based on his experience communicating with her whether an interpreter is really acquired or are we still having effective communication because I think that's what Mayfield also adopts and says, look, the 80 day doesn't require an interpreter

[00:16:16] Speaker 02:
in this situation if there is otherwise effective communication.

[00:16:22] Speaker 02:
And the last part of that question I want to answer is we talked about the availability of this interpreter service, but when you read Nardini's deposition, he does talk about you can get on it on your phone 24-7, whether an interpreter in that language is available at that time, that's up to the service.

[00:16:39] Speaker 00:
Right, but we don't know because there wasn't, there wasn't an absolute.

[00:16:42] Speaker 02:
We don't know because I think Nardini rightfully made the determination

[00:16:46] Speaker 02:
that they were communicating effectively and that they didn't need an interpreter.

[00:16:51] Speaker 02:
And because they communicated that well up to that point, I think he relied on Miss Gianvaldo to say, you know what, things are going south.

[00:16:59] Speaker 02:
My battery is getting better.

[00:17:01] Speaker 02:
I think we should get an interpreter.

[00:17:04] Speaker 02:
She also voluntarily, this is another note, I mean, the DRE.

[00:17:08] Speaker 00:
Well, I guess, again, part of the problem here is that at the point at which she explicitly requests the interpreter, that request isn't respected.

[00:17:17] Speaker 00:
It's met with, I speak quite a bit of sign language, which, based on her testimony, isn't true.

[00:17:25] Speaker 00:
I mean, I know you've addressed it.

[00:17:27] Speaker 02:
No, and I understand that.

[00:17:28] Speaker 02:
I understand the point.

[00:17:30] Speaker 02:
But that also begs the question, from the office perspective,

[00:17:34] Speaker 02:
Can I get an interpreter?

[00:17:36] Speaker 02:
And I want an interpreter, I think are two different questions.

[00:17:39] Speaker 02:
I mean, certainly in the context of right to counsel, there's a distinction between those statements.

[00:17:45] Speaker 02:
And when the officer hears those statements, I think he was simply explaining, yes, we can get an interpreter if we need one.

[00:17:53] Speaker 02:
If you need one, ask for one.

[00:17:56] Speaker 02:
And then she didn't ask for one and went on to continue to display effective communication through the two hour and 33 minute interaction.

[00:18:08] Speaker 02:
Any other questions Okay, so I mean with that I would just like to sort of wrap up by saying you know the Mayfield court, you know, I think if I overturning the district court's decision here and Reversing it.

[00:18:26] Speaker 02:
It's tantamount to to reversing Mayfield.

[00:18:28] Speaker 02:
I mean setting aside the interpreter issue You know when you line these cases up and you look at

[00:18:34] Speaker 02:
The efforts that were made to communicate the responses.

[00:18:38] Speaker 02:
I mean, I disagree with council's sort of argument that people can get lucky and I can hear you.

[00:18:45] Speaker 02:
and I can respond to you appropriately but still not understand.

[00:18:50] Speaker 02:
I mean, Ms.

[00:18:51] Speaker 02:
Giambalo displayed understanding of what was going on, of the proceedings.

[00:18:57] Speaker 02:
She had a right to participate.

[00:18:59] Speaker 02:
She voluntarily sat for the FST.

[00:19:01] Speaker 02:
She voluntarily took, well, she did the blood draw per the admin per se readings, which is kind of a requirement, but she understood those.

[00:19:10] Speaker 02:
You know, she voluntarily opted for the DRE

[00:19:14] Speaker 02:
And then, when she did express difficulty hearing, when she said, my hearing aid is completely dead, I'm only reading your lips, officer 90 says, fine, we're gonna skip that test, we're gonna stop the DRE.

[00:19:28] Speaker 02:
And there's just, I've looked at this two hours and 33 minutes of tape, and I can't find the hindrance.

[00:19:35] Speaker 02:
I can't find the piece where she missed out on something by not having the interpreter.

[00:19:43] Speaker 02:
And with that, we would ask the court to affirm the district court's decision.

[00:19:47] Speaker 02:
Thank you, counsel.

[00:19:48] Speaker 02:
Consistent with me.

[00:20:00] Speaker 01:
I just want to address some of the comments that were made by counsel in the interactions here.

[00:20:07] Speaker 01:
The the drug recognition exam was was not completely over or the consent forms that were given were not completely over by the time her hearing aid died that the record bores that out completely that it was it was in the beginning to middle of the drug recognition exam where she says it completely died and then the 20 minutes before that she keeps on saying it's dying it's going in and out it's dying it's going and so to the fact that

[00:20:34] Speaker 01:
said that everything was over by the time it died is just not supported by the record.

[00:20:40] Speaker 01:
And also, too, I think the fact that we are going back and forth about, well, if Ms.

[00:20:45] Speaker 01:
Giambabbe was saying, I didn't understand these specific interactions, and I think I trialed,

[00:20:50] Speaker 01:
You could show her the video, OK, we're going to go to here.

[00:20:53] Speaker 01:
What didn't you understand?

[00:20:56] Speaker 01:
What did you think was going on here?

[00:20:57] Speaker 01:
In your testimony, you said you didn't understand this interaction.

[00:21:00] Speaker 01:
But here, there's questions about credibility.

[00:21:03] Speaker 01:
There's questions about whether, in fact, she did or did not understand the material aspects of this.

[00:21:10] Speaker 01:
And I think that's the very reason why summary judgment is not appropriate here.

[00:21:17] Speaker 01:
And, Your Honor, you brought up a really good point about respecting the request of Ms.

[00:21:24] Speaker 01:
Giambalvo, because we have the primary consideration standard, which was discussed in BACS that

[00:21:30] Speaker 01:
when a request is made, the entity is supposed to honor that request unless they can show that an equally effective form of accommodation was provided.

[00:21:42] Speaker 01:
Here, you know, I think there's at least a material question of fact of whether this, you know, hodgepodge of lip reading and not understanding would have been equally as effective as providing the VRI interpreter that was readily available.

[00:21:56] Speaker 01:
This case can be decided and harmonized with Mayfield because I think whether there's a material hindrance or not a material hindrance and whether there was effective communication or not effective communication is inherently a question of fact.

[00:22:14] Speaker 01:
Now if Ms.

[00:22:15] Speaker 01:
Giamballo in her deposition said, you know what, you're right, I understood everything, the video supports that, I don't know what else to say, of course in those cases,

[00:22:25] Speaker 01:
you could grant summary judgment.

[00:22:28] Speaker 01:
But she is disputing that she understood.

[00:22:30] Speaker 01:
Her audiologist says that when her hearing aid dies, she can't discriminate speech.

[00:22:36] Speaker 01:
We have an expert that talks about the communication difficulties and why she did what she did and why it may look like she's understanding, but really she may not be.

[00:22:46] Speaker 01:
And I think that these are all really critical and inherent questions that

[00:22:51] Speaker 01:
are really important for the fact finder to determine.

[00:22:55] Speaker 01:
And I think that that's why this court should remand.

[00:22:58] Speaker 01:
For further proceedings, and it may be that the jury finds against me Jim Balvo And it may be that she find they find for her, but I think she should at least have that opportunity so counsel What is the significance of in Mayfield if I remember the facts of that case correctly?

[00:23:14] Speaker 04:
Request was made for the sign language interpreter.

[00:23:18] Speaker 04:
Yes But there wasn't one available right so they actually what's the significance what does that have any?

[00:23:24] Speaker 04:
meaning in this case

[00:23:26] Speaker 01:
Yes, I think it goes to the exigency because obviously there are certain situations like if, you know, they're stopping an assault between two people and one's deaf, they're not going to, you know, you're not going to say, hold on, hold on, let me get the interpreter for you right now.

[00:23:41] Speaker 01:
Like, you know, no.

[00:23:43] Speaker 01:
I think when they tried to get a virtual interpreter and one was just simply not available,

[00:23:49] Speaker 01:
And the only other option was to get an in-person interpreter.

[00:23:53] Speaker 01:
I think that raises the reasonableness and the exigency.

[00:23:57] Speaker 01:
Because if it's an undue burden to provide an interpreter, or it's just simply not reasonable under the circumstances, there's an out for police officers to not have to provide that accommodation.

[00:24:11] Speaker 01:
Seen it was completely secure.

[00:24:12] Speaker 01:
There were no issues.

[00:24:15] Speaker 01:
There wasn't a... They took them to the processing facility where the police officers are.

[00:24:23] Speaker 01:
They could have easily just took out the phone, connected to it.

[00:24:26] Speaker 01:
I see we're having some difficulties.

[00:24:29] Speaker 01:
And, you know, I told you that if we were having difficulties, I would provide the interpreter.

[00:24:33] Speaker 01:
I mean, what is Ms.

[00:24:34] Speaker 01:
D'Imbalvo supposed to do?

[00:24:36] Speaker 01:
There's a differential of power here.

[00:24:38] Speaker 01:
She requested the interpreter.

[00:24:39] Speaker 01:
They said, if you're having problems communicating, we'll give you one.

[00:24:43] Speaker 01:
And they wind up not giving one.

[00:24:45] Speaker 01:
Whether she should have continuously requested after that, I mean, obviously, one could understand if someone made a request and they're still not providing it, then there's a problem there.

[00:24:56] Speaker 01:
So I think here, there is a distinction.

[00:25:00] Speaker 01:
And it goes to the exigency.

[00:25:01] Speaker 01:
And here, I just don't think there's any exigency or any unreasonableness of him taking out his phone and connecting to the interpreter.

[00:25:09] Speaker 01:
So with that, I respectfully ask that you reverse and let this go to a fact finder.

[00:25:17] Speaker 01:
Thank you.

[00:25:17] Speaker 04:
All right.

[00:25:17] Speaker 04:
Thank you, counsel.

[00:25:18] Speaker 04:
Again, thank you both for your briefing and argument in a very interesting case.

[00:25:22] Speaker 04:
This matter is submitted, and we are adjourned for the day.

[00:25:25] Speaker 04:
Thank you, Your Honor.