[00:00:04] Speaker 03:
Good morning, Your Honors.

[00:00:06] Speaker 03:
May it please the Court.

[00:00:08] Speaker 03:
My name is Brian Ginter, and I am here today on behalf of Sharon Kim, an officer of the Los Angeles Police Department.

[00:00:16] Speaker 03:
I would like to first note that I would like to reserve approximately five minutes of my allotted time to rebut arguments made by Mr. Harris' counsel.

[00:00:23] Speaker 00:
Okay, please watch the clock.

[00:00:25] Speaker 03:
I will, thank you.

[00:00:27] Speaker 03:
Your Honors, we have taken this interlocutory appeal

[00:00:31] Speaker 03:
of the district court's denial of Officer Kim's assertion of qualified immunity because in our view the undisputed material facts show for the conduct at issue in this appeal that Officer Kim acted as any reasonable officer would based on the information that was available to her at the time.

[00:00:52] Speaker 03:
We will therefore ask that this court reverse the district court's

[00:00:55] Speaker 03:
Denial of officer Kim's assertion of qualified immunity Obviously as we have stated I believe numerous times now in our briefing For only the conduct that is issue that is that issue in this appeal for the avoidance of any doubt that does not include Conduct that mr. Harris's council focuses on which includes officer Kim's statements about mr. Harris's tattoos and the effects of them and

[00:01:26] Speaker 03:
I will return to the specific conduct at issue in this appeal, but I would like to briefly address arguments made by Mr. Harris concerning whether this court has jurisdiction over this appeal.

[00:01:39] Speaker 03:
Mr. Harris argues that the district court's determination that disputes of material fact exist prevents this court from exercising jurisdiction over this appeal.

[00:01:50] Speaker 03:
However, the case of Cunningham versus City of Wenatchee

[00:01:55] Speaker 03:
a case which is cited in our papers.

[00:01:58] Speaker 03:
In that case, this court ruled that this court has jurisdiction, quote, from district court orders that decide not only that material facts are in dispute, but also that the defendant's conduct violated the plaintiff's clearly established rights.

[00:02:17] Speaker 03:
As I said, the Cunningham case is cited in our papers

[00:02:21] Speaker 03:
The specific page from which that quote is referenced is 807 and that is a 2003 opinion of this court.

[00:02:30] Speaker 01:
We have clear distinction in our case law between challenges to a determination by the district court, there are genuine issues of fact and challenges based on the legal question of whether or not a given violation is clearly established under the law.

[00:02:49] Speaker 01:
And it sounds to me like Cunningham's simply saying the same thing, that you can't challenge the district court's determination that there's a genuine issue of material fact, but you can challenge the question of whether the alleged misconduct or misstep was clearly established as improper.

[00:03:08] Speaker 01:
Am I wrong in my impression?

[00:03:11] Speaker 03:
Pardon me, Your Honor.

[00:03:12] Speaker 03:
My reading of the Cunningham case is slightly different.

[00:03:16] Speaker 03:
We can and we do challenge here the first prong of the qualified immunity analysis and that is proper when the issues are relating to undisputed material facts.

[00:03:32] Speaker 01:
Well, that seems completely inconsistent with the case law which you note in your reply brief and the N case which says,

[00:03:41] Speaker 01:
Any decision by the district court, the party's evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal.

[00:03:51] Speaker 01:
And you're now trying to challenge that on determination by the district court that there are genuine issues of material fact as to whether Officer Kim fabricated evidence.

[00:04:04] Speaker 03:
With respect, Your Honor, I believe we were addressing that case because it was cited by Mr. Harris.

[00:04:09] Speaker 03:
for the notion?

[00:04:10] Speaker 01:
Well, it's our law.

[00:04:11] Speaker 01:
I mean, whether it's cited by Mr. Harris or not, that's what our case law says.

[00:04:16] Speaker 01:
In your brief, you suggest that it's not really binding on us because it wasn't essential to the decision in Aang.

[00:04:28] Speaker 01:
That's not really the standard.

[00:04:30] Speaker 01:
But that doesn't give an answer because our court has repeated that in multiple cases where it was essential to the conclusion.

[00:04:37] Speaker 01:
So how is it

[00:04:39] Speaker 01:
you can tell us that we're authorized to re-examine the question that is a genuine issue when our case law says we can't.

[00:04:48] Speaker 03:
Respectfully, Your Honor, I believe the case law says that we can.

[00:04:51] Speaker 03:
I will refer you to Scott versus Harris, a United States Supreme Court case, which is often cited for the notion that the facts are undisputed when there is, for instance,

[00:05:05] Speaker 03:
objective evidence about the matters for which the district court concludes there are disputes of material fact.

[00:05:14] Speaker 03:
In that case, Your Honor, if you do recall, involved a police chase for which there was camera evidence concerning the conduct at issue.

[00:05:25] Speaker 03:
And what the Supreme Court said is that despite the fact that the trial court and also the court of appeals determined that there was disputes of material fact in that case, that the, that what this court should do in fact or should have done was review the video that was at issue and make findings based upon the undisputed and clear objective evidence that was at issue in that case.

[00:05:53] Speaker 01:
But we don't have a video here.

[00:05:55] Speaker 03:
We do not have video, but what we have is similarly objective and clear, and that is the documents that relate to the underlying conduct at issue here, the reports prepared by Officer Kim, for instance, the reports prepared by Detective Parker of the Los Angeles Sheriff's Department, and also, frankly, Your Honors, the testimony by Mr. Harris himself.

[00:06:21] Speaker 02:
But we can only assume whatever is in those reports as true if the other side doesn't dispute them, right?

[00:06:30] Speaker 02:
And if there's actual factual dispute, then we have to read it in his favor.

[00:06:35] Speaker 03:
If there are factual disputes, but I think part of the reason why my colleague's analysis goes astray is that he focuses on whether, in fact, for instance, Mr. Harris actually self-admitted to an officer that he was a member of the gang.

[00:06:52] Speaker 03:
The issue is not whether there is evidence or a dispute of that underlying fact, whether there was a self-admission.

[00:07:01] Speaker 03:
The proper analysis centers on

[00:07:04] Speaker 03:
what Officer Kim knew and understood at the time.

[00:07:07] Speaker 00:
So if we assume, taking the facts, as Judge Lee says, taking the facts in the light most favorable to the nonmoving party and we assume that Harris never admitted that he was a gang member, does that change your analysis?

[00:07:22] Speaker 03:
It does not, Your Honor, because the undisputed material facts are and the objective evidence are the information that was available to Officer Kim at the time, which in fact the district court concluded Officer Kim was entitled to rely upon

[00:07:35] Speaker 03:
for instance, with respect to the self-admission is field identification cards or F.I.

[00:07:41] Speaker 03:
cards that were submitted by or that were kept by other officers and which Officer Kim was aware of and which stated that Mr. Harris had self-admitted to being a member of the gang.

[00:07:54] Speaker 03:
And I think it's also important here, Your Honor, that there is no evidence that, for instance, Officer Kim had any reason to believe or any reason to doubt

[00:08:04] Speaker 03:
the veracity of the statements that were included in those F.I.

[00:08:06] Speaker 00:
cards.

[00:08:07] Speaker 00:
Is there any dispute over what the field identification cards say or what Officer Kim knew about?

[00:08:13] Speaker 03:
There is not, Your Honor.

[00:08:15] Speaker 03:
There is testimony in the underlying criminal case about what the F.I.

[00:08:21] Speaker 03:
cards state, and I don't believe it is challenged by Mr. Harris here, what in fact is stated in those cards.

[00:08:30] Speaker 02:
Can you address the third example that Mr. Harris brought up, which was that

[00:08:36] Speaker 02:
Officer Kim said that he said is this about the robbery and wrote that down in the report and he says he was just responding to someone in the crowd saying it and that excerpt wasn't included in the report and you say that by itself even assuming that's true doesn't amount to you know fabrication of evidence maybe but where do we draw the line because probably at a certain point

[00:09:04] Speaker 02:
if you take something out of context, does it become fabrication of evidence?

[00:09:11] Speaker 02:
So for example, if someone said, it may look like I did it, but I didn't, and the officer just quotes, it may look like I did it.

[00:09:20] Speaker 02:
Would that be a fabrication of evidence?

[00:09:23] Speaker 03:
I'll answer your question this way, Judge Lee.

[00:09:26] Speaker 03:
I agree with you that the context is important here.

[00:09:30] Speaker 03:
One thing that is lacking in

[00:09:33] Speaker 03:
Mr. Harris' evidence is the context, the timing of the statements, for instance.

[00:09:38] Speaker 03:
It would be one thing if a person in the crowd made the statement about the fact that Mr. Harris were being arrested for the robbery, and it was clear that Officer Kim heard it.

[00:09:52] Speaker 03:
And following that example, it would be a different case if shortly thereafter,

[00:09:57] Speaker 03:
as is claimed by Mr. Harris, that Mr. Donnie Jobert made the statement, that's not his MO.

[00:10:05] Speaker 03:
And Officer Kim clearly understood that Mr. Harris was responding to those statements in a clear and direct way.

[00:10:15] Speaker 03:
But that's not the context here, Your Honor.

[00:10:17] Speaker 03:
I would contrast that situation with a situation where statements were similarly made by persons in the crowd.

[00:10:26] Speaker 03:
And then shortly thereafter, the suspect were being interviewed back at the police station without any prompting, without any context.

[00:10:35] Speaker 03:
The person says, is this about a robbery?

[00:10:40] Speaker 03:
So again, I believe the context is important.

[00:10:44] Speaker 03:
What doesn't happen here is equally important.

[00:10:48] Speaker 03:
Mr. Harris doesn't state, for instance, Officer Kim, I can hear from someone in the crowd that,

[00:10:58] Speaker 03:
That this is supposedly about a robbery and Mr. Jobert said that this is not my MO.

[00:11:04] Speaker 03:
Am I being arrested for a robbery?

[00:11:07] Speaker 03:
That's not what happened here.

[00:11:09] Speaker 03:
According to Mr. Harris's own testimony, he basically wonders out loud whether he's being arrested for a robbery.

[00:11:16] Speaker 03:
And of course, Officer Kim hears it.

[00:11:19] Speaker 03:
is not required to make the connection between that statement by Mr. Harris and anything said by someone in the crowd and accurately reports to Detective Parker that Mr. Harris did in fact make the statement.

[00:11:34] Speaker 03:
I see that I'm running close to my time, Your Honors.

[00:11:36] Speaker 03:
I will reserve the balance of it if you have further questions at this time.

[00:11:40] Speaker 00:
Thanks.

[00:11:54] Speaker 04:
Morning your honors and may please the court I'm David be Owens and I represent Derek Harris who is wrongfully convicted as a result of the Conduct committed by defendant Kim who is the defendant in this appeal?

[00:12:08] Speaker 04:
I think that the argument that you've just heard is

[00:12:10] Speaker 04:
confirms that this court lacks jurisdiction over this appeal and that it should be dismissed for want of jurisdiction and because there really is no dispute that in 2013 it was clearly established that officers were on notice that they couldn't fabricate evidence and I want to start

[00:12:31] Speaker 04:
I wanted to start with the the Mr.. Harris in this case brought a claim for the fabrication of evidence part of that claim involves officer Kim Making up that he had his tattoos were gang related you heard it on its it first appeared on page one of the reply brief you heard it again here today and

[00:12:51] Speaker 04:
They're not challenging that.

[00:12:53] Speaker 04:
The district court found a reasonable jury can find that Kim fabricated evidence as it relates to Mr. Harris's tattoos.

[00:13:00] Speaker 04:
So there's no issue that falls within the narrow collateral bar doctrine for us to decide today because based upon Kim's concessions, there's going to be a trial on Harris's fabrication of evidence claims with respect to that due process count.

[00:13:16] Speaker 04:
And that's the thing that should go back.

[00:13:18] Speaker 04:
So based upon their concessions here today and in the reply brief,

[00:13:21] Speaker 04:
This is a case that should be dismissed quickly.

[00:13:24] Speaker 04:
Even setting that aside, I do think the issues that you've heard from Kim do dispute the issues of fact.

[00:13:31] Speaker 04:
And I want to go back to your colloquy about the Cunningham case, which is cited twice in their brief, but not for the proposition that Mr. Ginter cited it for today.

[00:13:42] Speaker 04:
What I think Cunningham says, Judge Clifton, is that in an interlocutory appeal,

[00:13:48] Speaker 04:
This court can, in some instances, have jurisdiction to address step one of qualified immunity, whether or not the Constitution was violated, or two, whether or not the right was clearly established at the time of the conduct.

[00:14:01] Speaker 04:
The only thing that this court needs to do is follow the jurisdictional rules for this posture, making sure that those are legal questions separate and apart from the merits, and that conclusively decide an issue.

[00:14:13] Speaker 00:
Here.

[00:14:13] Speaker 00:
Let me ask you this.

[00:14:14] Speaker 00:
I mean, our cases in the Supreme Court cases,

[00:14:17] Speaker 00:
over and over.

[00:14:18] Speaker 00:
Assuming all factual disputes are resolved and all reasonable inferences are drawn in plaintiff's favor, we can then decide the legal issue.

[00:14:28] Speaker 00:
So opposing counsel says, even making all the facts in the light most favorable to your client, Officer Kim still is entitled to qualified immunity.

[00:14:41] Speaker 00:
So could you address that?

[00:14:43] Speaker 04:
Yes, Your Honor.

[00:14:43] Speaker 04:
I think that's one thing for counsel to sort of say that and know that that's the legal standard, but hasn't actually adhered to it here today.

[00:14:52] Speaker 04:
So, for example, if we accept what counsel said about the tattoos, then Officer Kim fabricated evidence, as the trial court found.

[00:15:00] Speaker 04:
But moving on to the other examples that were

[00:15:03] Speaker 04:
discussed earlier, for example, about the self-admission.

[00:15:06] Speaker 04:
Council neglected to mention that one of the F.I.

[00:15:09] Speaker 04:
cards at issue has to do with Officer Kim herself saying that Mr. Harris self-admitted to me.

[00:15:16] Speaker 04:
Harris denies ever self-admitting to anyone, but certainly to Officer Kim that.

[00:15:21] Speaker 04:
So it's just a quintessential dispute of fact between two witnesses.

[00:15:26] Speaker 04:
Harris says, I didn't say this.

[00:15:27] Speaker 04:
Kim says, you said that.

[00:15:28] Speaker 04:
And I know that I memorialized that interaction from this document.

[00:15:32] Speaker 02:
Wasn't the to me wasn't that a trial or at the hearing not not in the

[00:15:41] Speaker 02:
You're right.

[00:15:42] Speaker 02:
Non-trial context, and there's immunity for whatever she said at trial, right?

[00:15:45] Speaker 04:
Yes, you're absolutely right, Your Honor.

[00:15:47] Speaker 04:
There is absolute immunity for that testimony.

[00:15:49] Speaker 04:
And so I think that the way this works in wrongful conviction cases like this is typically the jury is given an instruction that the officers cannot be liable for their testimony because they are immune for it.

[00:16:01] Speaker 04:
And however, there's a little bit of attention when it comes to showing materiality.

[00:16:04] Speaker 04:
or causation because you have to show that the fabrications caused the defendant harm in some way.

[00:16:10] Speaker 04:
But here there's no question that the F.I.

[00:16:12] Speaker 04:
card that Kim created related to her own interactions with Mr. Harris was an antecedent basis for that testimony.

[00:16:20] Speaker 04:
So that's not an issue that's come up here.

[00:16:23] Speaker 04:
But there is that quintessential dispute.

[00:16:25] Speaker 04:
Then as it relates to the dispute of fact about Mr. Harris' statement during the course of his arrest, there are a few different things here.

[00:16:35] Speaker 04:
First, I do think it is a challenge to the trial court's finding of facts to say that, oh, we don't know whether or not Kim heard this or what her mental state was with that.

[00:16:45] Speaker 04:
Because the trial court found a reasonable jury could find that this was part of her fabrication.

[00:16:51] Speaker 04:
Of course, the assumption there

[00:16:53] Speaker 04:
The basic inference is that she heard the statement.

[00:16:56] Speaker 04:
Now there's not a lot of evidence, and I'll admit this, in the record about whether or not Kim heard the statement or not.

[00:17:02] Speaker 04:
And the reason for that is because at summary judgment, in the moving papers, Kim below, Kim never said, I didn't hear the statement.

[00:17:10] Speaker 04:
And in fact, at her deposition, there was discussion of Mr. Jobarer and all of that, and the whole interaction.

[00:17:17] Speaker 04:
There's no dispute.

[00:17:17] Speaker 04:
that Mr. Joe Baer was a person who was known to Kim and her partner.

[00:17:21] Speaker 04:
And there is a little bit of the record at 4ER700 where there are some questioning from Kim about interacting with Joe Baer during the course of Mr. Harris' arrest.

[00:17:32] Speaker 04:
So even though the legal standard is there and this court can't assume jurisdiction in some of those instances you've identified, Judge Akuta, that's just not the situation here because they are continuing to contest the facts and not accepting them in the light most

[00:17:47] Speaker 02:
favorable to the point that they agree with you that we have to assume that officer Kim heard it but then we run into you know the second prong of qualified immunity is that clearly established for fabrication of evidence and that that's where becomes a bit murky I mean is that really fabrication of evidence not including that

[00:18:08] Speaker 02:
Maybe, maybe not.

[00:18:09] Speaker 04:
So, Your Honor, I do think that there's two things on this point.

[00:18:12] Speaker 04:
One is that it was, and I like your example better than the examples I tried to come up with of, you know, it may look like I did it, but I didn't.

[00:18:22] Speaker 04:
And if you omit that part, so there's a whole line of cases about material omissions, right?

[00:18:27] Speaker 04:
So sometimes these get come up and

[00:18:29] Speaker 04:
In the Franks context where there's material emissions, if you leave that information out, it can make something look incriminating that is actually not incriminating like your example.

[00:18:41] Speaker 04:
Detective Parker who this was reported to says you know hired an expert a police practices expert in this case to see there was probable cause Part of the reason I believe there's arguable probable cause here is because he made consciousness of guilt type of a statement a spontaneous statement showing consciousness of guilt and I do think that there are Liston which we cited Benevides which we cited and Frank's and other authorities about where there are material omissions that sort of complement an affirmative statement that that make it

[00:19:10] Speaker 04:
that officers that were clearly established that officers knew that they couldn't do and that's also with this case with this court held in Costanich where it's these types of arguments at summary judgment you can't make that type of a determination it could be the case at trial officer Kim says you know I told Parker X Y and Z and he misreported that she hasn't distanced herself from that report she hasn't done anything like that instead it is simply

[00:19:39] Speaker 04:
must be assumed at this juncture, I apologize.

[00:19:43] Speaker 04:
as Officer Parker's own expert said, that this was an incriminating statement by an innocent person.

[00:19:50] Speaker 04:
And so I don't think there's an issue of clearly established law there, because the facts themselves are not murky.

[00:19:56] Speaker 04:
Of course, if Mr. Harris just spontaneously spit out, is this about the murder or the armed robbery that happened to Blackwell?

[00:20:03] Speaker 04:
That would be a totally different thing.

[00:20:05] Speaker 04:
But they've painted a different picture here in their reporting and then subsequently in seeking criminal charges against Mr. Harris.

[00:20:13] Speaker 04:
The other thing that I wanted to briefly touch on, Your Honors, was about the issue with respect to the gang injunction.

[00:20:20] Speaker 04:
You know, it is just a straight-up form of fabrication and a misconstruing of a document to say, you know, that Mr. Harris was named in a gang injunction when he was not.

[00:20:32] Speaker 04:
He was served with it.

[00:20:33] Speaker 04:
And I do think, and I want to be clear about this, because I know it's important that the standards for fabrication of evidence are rigid, they are high,

[00:20:42] Speaker 04:
and the trial court's determination here that that threshold has been met is a serious one.

[00:20:49] Speaker 04:
Had the reporting in this case said, you know, Harris was served with a gang injunction, we wouldn't be arguing about that.

[00:20:57] Speaker 04:
What the reporting in this case from the police officers is that Harris was named in this gang injunction.

[00:21:02] Speaker 04:
There are 16 other people who are named in the injunction.

[00:21:06] Speaker 04:
None of them are Harris.

[00:21:07] Speaker 04:
And what you've seen, and I think that this shows how fabricated evidence can taint

[00:21:13] Speaker 04:
criminal proceedings and contain court proceedings is now you have the briefing in this court in the reply brief in particular mentions Harris was named in this therefore he was named there's no associative property here Harris was not named in the document that is a quintessential form of fabrication that was clearly established in 2013 certainly and when combined with the testimony that is not even challenged here about Mr. Harris's tattoos

[00:21:41] Speaker 04:
It's clear in our and we would ask this court to accept that this court lacks jurisdiction over those issues and even if it does the type of dispute here is in that quintessential statements that were never made as in like Spencer and Caldwell and Costanich where this court is clearly established and recognized decades before the police interactions in this case that the rights at issue here are clearly established and

[00:22:04] Speaker 04:
I also wanted to mention, finally and briefly, there's a Brady claim here, which didn't come up earlier, but the concession made in the reply brief and then again today at oral argument that they're not challenging the allegations that Officer Kim fabricated evidence with respect to Mr. Harris's tattoos, that's also dispositive of the Brady claim as well because their essential argument on the Brady claim is

[00:22:33] Speaker 04:
While we recognize officers have an obligation under Kyle's, under Giglio, to disclose impeachment evidence, which could include things that impact the honesty of an investigation, Officer Kim didn't have anything to disclose because she didn't fabricate anything.

[00:22:49] Speaker 04:
But if they're not challenging the determination that a reasonable jury can find Kim fabricated evidence about Mr. Harris's tattoos, which is a bulk of her report,

[00:23:00] Speaker 04:
about Mr. Harris at least, then the Brady claim, those things rise and fall together.

[00:23:05] Speaker 04:
So I just wanted to point that out.

[00:23:07] Speaker 04:
And if there are no further questions from the panel, I'll reserve my time.

[00:23:13] Speaker 00:
All right.

[00:23:14] Speaker 00:
Thank you for your argument.

[00:23:15] Speaker 00:
Thank you.

[00:23:15] Speaker 00:
You have some time for rebuttal.

[00:23:18] Speaker 01:
You don't have time to reserve.

[00:23:22] Speaker 04:
Oh, I will yield the rest of my time.

[00:23:25] Speaker 04:
I apologize.

[00:23:26] Speaker 04:
Thank you, Your Honor.

[00:23:26] Speaker 01:
I just want to make sure you weren't misunderstanding.

[00:23:29] Speaker 01:
I'll come back, yeah.

[00:23:30] Speaker 01:
Got it.

[00:23:35] Speaker 03:
Thank you, Your Honor.

[00:23:37] Speaker 03:
I will return to my colleague's statements about the jurisdiction or this court's jurisdiction over this matter.

[00:23:45] Speaker 03:
I think where the analysis goes astray is that there is, the analysis by my colleague seems to be that it is a claim-based analysis.

[00:23:55] Speaker 03:
In other words, if there is any dispute of fact about any particular aspect of the claims that have been raised, then the entire claim must be returned to the district court for determination.

[00:24:07] Speaker 03:
Respectfully, Your Honors, I believe the cases dictate that it is a conduct-based analysis, that the district court and this court is to look at the specific conduct in each separate instance of specific conduct and determine whether

[00:24:21] Speaker 03:
There is qualified immunity under either prong of the analysis for that specific conduct, and I would refer for that particular Assertion to the Rico versus Ducart case which is a 2020 decision of this court And I would also refer to Devereaux versus Abbey which is another decision of this court well, I mean the district court was aware that the

[00:24:47] Speaker 01:
There were different arguments that could be made, different factual arguments to be made about different sets of allegations.

[00:24:53] Speaker 01:
In the district court's order, notes says absent evidence that Officer Kim knew the FI cards were fabricated, those FI cards could have formed a reasonable basis for Officer Kim's belief that Harris was a member of the gang.

[00:25:07] Speaker 01:
It was gone to say that there's direct evidence about, we've heard about the tattoos and so forth.

[00:25:15] Speaker 01:
and that was enough to cause the district court to conclude with regard to this claim, there was a genuine issue of material fact.

[00:25:24] Speaker 01:
Now what's wrong with that analysis?

[00:25:26] Speaker 03:
Actually, your honor, I agree that the district court correctly separated the different aspects of the conduct and determined whether qualified immunity applied for each specific aspect or conduct by Officer Kim.

[00:25:40] Speaker 03:
For instance, the district court determined that Officer Kim was entitled to qualified immunity with respect to the issue about the search or the lack thereof

[00:25:50] Speaker 02:
With respect to surveillance camera or video evidence that officer Kim may or may not have been aware about At the time of the investigation and arrest and trial Can you you may have already addressed this I missed this but you know both of you talked about the officer Kim's statement about a gang tattoo and that's not being appealed here today So does that mean that?

[00:26:14] Speaker 02:
Any claim based on that will, regardless of what we do, move forward at the district court?

[00:26:20] Speaker 02:
Yes, your honor.

[00:26:22] Speaker 03:
OK.

[00:26:22] Speaker 03:
In my limited time, I wanted to point out there was some discussion by my colleague about the evidence that we put forward that Officer Kim did not understand at the time that Mr. Harris was, at the time of his arrest, responding to someone in the crowd or anything that they said.

[00:26:44] Speaker 03:
In fact, in the record, Officer Kim testified that she believed the statement made by Mr. Harris at that time was spontaneous.

[00:26:55] Speaker 03:
That's at 4ER 699.

[00:26:58] Speaker 03:
We've therefore met our burden to show that Officer Kim, at least in her understanding of the facts, believed that the statement made by Mr. Harris was spontaneous.

[00:27:10] Speaker 00:
Was that disputed in the record?

[00:27:13] Speaker 00:
Is there evidence in the record disputing that?

[00:27:19] Speaker 03:
I believe the dispute is about in Mr. Harris's own mind.

[00:27:22] Speaker 03:
He doesn't believe he's making, he believes he's responding to someone in the crowd in their statement as opposed to maintaining or making a spontaneous statement that might be inferred as a consciousness of guilt.

[00:27:34] Speaker 00:
Okay, thank you.

[00:27:35] Speaker 00:
I think we have your argument.

[00:27:37] Speaker 00:
The case of Harris v. Kim is submitted.