[00:00:12] Speaker 01:
Good morning, and may it please the court my name is Natalie price And I'm counsel for detective Alex Arnett you speak a little closer to the microphone, please counsel of course Thank you very much for letting me know your honor and if I may please reserve five minutes for rebuttal Detective Arnett respectfully requests that this court reverse the district court and enter an order find excuse me find

[00:00:38] Speaker 01:
that he was entitled to qualified immunity.

[00:00:43] Speaker 01:
And the reason that he should have been granted qualified immunity below is because plaintiffs failed the ICTAS.

[00:00:51] Speaker 01:
They failed in their burden to set forth relevant Supreme Court, Ninth Circuit, or a consensus of Sister Circuit courts to show that the photo identification process used here was

[00:01:08] Speaker 01:
clearly unlawful at the time.

[00:01:10] Speaker 01:
Plaintiffs have not satisfied their burden and it was their burden below as the panel well knows to overcome the presumption of qualified immunity which they did not do below and they have not done in any additional briefing put to this court.

[00:01:28] Speaker 04:
Council, let me give you a hypothetical.

[00:01:31] Speaker 04:
Let's say that the facts were that Officer Arnett

[00:01:39] Speaker 04:
factually did what he did here, but then lied to the prosecutor about what had happened and didn't disclose the facts which might have rendered the identification overly suggestive.

[00:01:54] Speaker 04:
Would that matter to qualified immunity if those were the facts?

[00:01:59] Speaker 01:
I want to make sure that I understand the court's question.

[00:02:03] Speaker 01:
Would it matter whether or not Detective Arnett was deceitful with the district attorney?

[00:02:08] Speaker 01:
Yes.

[00:02:09] Speaker 01:
No, it would not.

[00:02:11] Speaker 01:
Because we're not looking at Detective Arnett's communications with the district attorney.

[00:02:17] Speaker 01:
We are looking at Detective Arnett's identification process.

[00:02:22] Speaker 02:
Well, why?

[00:02:23] Speaker 02:
I'm going to give you a different hypothetical.

[00:02:25] Speaker 02:
Suppose he had done exactly what he did.

[00:02:27] Speaker 02:
And suppose it was, in fact,

[00:02:31] Speaker 02:
under prong one of what I understand to be a two prong standard with regard to in court identifications, impermissibly suggestive.

[00:02:43] Speaker 02:
But suppose it was never introduced in court.

[00:02:46] Speaker 02:
Would there be a due process violation?

[00:02:48] Speaker 02:
Could there be a due process violation?

[00:02:50] Speaker 01:
Under that scenario, no, there could not be a due process.

[00:02:53] Speaker 02:
And the second part of the standard, doesn't this all have to do with what goes on in court?

[00:03:00] Speaker 02:
Is there any violation of constitutional protection for the

[00:03:05] Speaker 02:
idea itself, absent its impact, its introduction in court and its impact in court, and the second prong, which only applies in court, which is, although your briefing does not clarify that, as to whether there was an independent basis of reliability.

[00:03:25] Speaker 02:
And suppose the woman, the girlfriend, when asked to understand how she knew this was the guy, said, well, I've actually known him for 20 years, of course it was the guy.

[00:03:36] Speaker 02:
Could the ID on any set of facts be a due process violation?

[00:03:43] Speaker 02:
Just the ID?

[00:03:46] Speaker 02:
It could be.

[00:03:47] Speaker 02:
It could be.

[00:03:49] Speaker 02:
How?

[00:03:52] Speaker 02:
How does due process affect the ID absence its use in court?

[00:03:58] Speaker 01:
I agree with Your Honor.

[00:04:01] Speaker 01:
The ID is not introduced in court or there's no meaningful impact, then there is no harm suffered.

[00:04:09] Speaker 02:
Well, it's not no harm, there's no due process violation because the due process is the impact, it's the use in court of a impermissible ID.

[00:04:20] Speaker 01:
Yes.

[00:04:22] Speaker 01:
I agree fully.

[00:04:23] Speaker 02:
And there's a case law that says that.

[00:04:24] Speaker 02:
So why are we talking then about the details of the ID by itself?

[00:04:30] Speaker 01:
I mean, the details are relevant when we look at whether or not plaintiffs have identified sufficiently analogous precedent in order to figure out whether or not they've overcome.

[00:04:43] Speaker 02:
But the precedent was all on either side.

[00:04:48] Speaker 02:
We're all in criminal cases in which the ID was presented in court.

[00:04:58] Speaker 02:
And to the extent... Or maybe as part of probable cause, but not just the ID itself.

[00:05:05] Speaker 02:
Is there any case that held that just the ID itself could be a due process violation?

[00:05:11] Speaker 02:
I'm not aware of any, Your Honor.

[00:05:13] Speaker 02:
So why are we getting into the weeds then of whether it's similar to this or that ID?

[00:05:18] Speaker 01:
That's relevant because that's the inquiry that we must go through to determine whether or not plaintiffs have put forth cases that show that the ID itself was clearly unlawful at the time.

[00:05:30] Speaker 04:
Counsel, I don't want to speak for Judge Berzon, but the way I read the Supreme Court cases, and I'm mostly going to direct these questions to your friend like Neil V. Biggers and Manson versus Braithwaite,

[00:05:44] Speaker 04:
The constitutional violation is the introduction into evidence of the supposedly unlawful identification.

[00:05:56] Speaker 04:
It's offered by the DA.

[00:05:58] Speaker 04:
It's admitted by the judge.

[00:06:02] Speaker 04:
That's the violation.

[00:06:04] Speaker 04:
How can the police officer be responsible for a due process violation?

[00:06:10] Speaker 01:
When it is the DA that offers it and the judge that admits it It is significantly removed The alleged harm is significantly removed from the alleged misconduct here as to Alex Arnett

[00:06:28] Speaker 00:
Which is why it comes down to what the police officer told the prosecutor.

[00:06:34] Speaker 00:
What we said in Stutt was that if a police officer engages in unreasonable, the unreliable technique, let's assume for the moment it's clearly established that this technique was, or what happened here, was clearly unreliable.

[00:06:54] Speaker 00:
If that what we at least implied in students that if that police officers forthcoming and tells the prosecutor exactly what happened and then the prosecutor independently decides.

[00:07:08] Speaker 00:
Looks at all that independently decides to introduce a.

[00:07:11] Speaker 00:
at trial, it gets used, the judge allows it.

[00:07:15] Speaker 00:
Essentially, there's been an intervening causation for the due process.

[00:07:19] Speaker 00:
There was a due process violation, but the intervening cause was the decision of the prosecutor.

[00:07:25] Speaker 00:
We said, if the police officer does not disclose the method, then it's on the police officer.

[00:07:33] Speaker 00:
They knew it was unreliable, and they essentially created the conditions for the, they caused

[00:07:40] Speaker 00:
the due process violation.

[00:07:42] Speaker 00:
Is it in the record, and is it disputed or not, what Officer Arnett told the prosecutor about how this idea was conducted?

[00:07:53] Speaker 01:
There is nothing in the record at all about any sort of conversations between Detective Arnett.

[00:07:59] Speaker 02:
But there is a police report.

[00:08:01] Speaker 02:
There is a report in which he does say that the woman was in the room.

[00:08:05] Speaker 00:
At the time he yes, that is correct, but there's nothing in the record about any sort of other communications or interactions between detective Arnett and his declaration Says he gave the police report the police report My understanding is that he describes in detail including the fact that the second witness was in the room is that any of that disputed by a plaintiff's no it is not

[00:08:36] Speaker 01:
No it is not.

[00:08:37] Speaker 01:
So there is no dispute and there's nothing in the record and there was nothing obviously cited, can't fight to nothing.

[00:08:45] Speaker 01:
And when we get down to the brass tacks here, it's the absence of any controlling precedent that would have put Detective Arnett on notice at the time that his

[00:09:00] Speaker 01:
identification process was clearly unlawful.

[00:09:04] Speaker 01:
And there's been none articulated by the plaintiff.

[00:09:07] Speaker 02:
But why isn't that, in the absence of any notice to Detective Ornette, that his ID process, even if unduly suggestive, is not a constitutional due process violation in and of itself?

[00:09:27] Speaker 01:
Pardon, I don't know that I heard the entirety of the question.

[00:09:29] Speaker 02:
Isn't an easier way to look at this case is whether there was any notice to Detective Ornette that his ID process, even if unduly suggestive, was itself a constitutional violation?

[00:09:48] Speaker 02:
Isn't that the easier question to answer?

[00:09:53] Speaker 02:
You assume that he had notice.

[00:09:57] Speaker 00:
That it was clearly overly suggested.

[00:10:02] Speaker 00:
I think the question is, isn't it easier to say there was no violation because there was intervening causation?

[00:10:09] Speaker 01:
It's both.

[00:10:12] Speaker 01:
It's both.

[00:10:12] Speaker 01:
And this panel could reach

[00:10:16] Speaker 00:
Reversal under either prong either that there was no violation or even if there was a violation what happened at trial with respect to this ID was it introduced as Based solely on the photo array or was there independent?

[00:10:32] Speaker 01:
Reliability there was significant independent reliability that was introduced to the jury trial with jurors excuse me at trial which is in the record specifically the victim Mr.. Cortez

[00:10:46] Speaker 01:
consistently testified and has always identified Mr. Ixta as the shooter.

[00:10:53] Speaker 01:
He did so before the alleged identification process at issue here.

[00:11:01] Speaker 04:
I've had some trouble with the state court record, but I've looked at some of it.

[00:11:05] Speaker 04:
As far as I can tell, nothing was ever raised on direct appeal.

[00:11:10] Speaker 04:
I think there was also a state habeas case.

[00:11:12] Speaker 04:
Nothing was ever raised concerning the ID.

[00:11:17] Speaker 04:
Is that right?

[00:11:19] Speaker 04:
That is correct.

[00:11:20] Speaker 04:
I mean, your friend can

[00:11:21] Speaker 04:
Correct me if I'm wrong, but I couldn't find anything in the, the affirmance of the conviction or at least the trial court's habeas order which indicated that anybody challenged the ID.

[00:11:33] Speaker 01:
And to your point, Your Honor, Detective Arnett would submit that to the extent it wasn't, was not raised in the trial court, but it could have been that the issue has been waived.

[00:11:46] Speaker 01:
and certainly to the extent that there was any sort of discussion in an appellate proceeding in the state court, which the defendant is not aware of, that it's been fully vindicated at this point.

[00:11:57] Speaker 01:
And I'd like to reserve the rest for a final.

[00:11:58] Speaker 01:
Thank you.

[00:12:31] Speaker 03:
May it please the court, Mark Pakowicz, Johnny Russell, and Paul Hoffman on behalf of the Appellees.

[00:12:38] Speaker 03:
Great question.

[00:12:40] Speaker 03:
Question.

[00:12:41] Speaker 03:
This is under oath at his deposition.

[00:12:44] Speaker 03:
Detective Arnett was asked, well, who verbalized that it was number five then?

[00:12:49] Speaker 03:
Oh, I did.

[00:12:50] Speaker 03:
Question.

[00:12:51] Speaker 03:
Why did you do that?

[00:12:52] Speaker 03:
Answer.

[00:12:53] Speaker 03:
I wanted to get Cortez to verbalize the number.

[00:12:58] Speaker 03:
Question, in the presence of Ms.

[00:13:01] Speaker 03:
Cervantes is when you wanted to do that, right?

[00:13:06] Speaker 03:
Answer, with Brenda Cervantes there, correct.

[00:13:11] Speaker 03:
Question, and was that how you were trained to do your job, sir?

[00:13:18] Speaker 03:
Answer, no.

[00:13:20] Speaker 03:
He was trained.

[00:13:23] Speaker 03:
And that's volume 3, 594 to 595.

[00:13:28] Speaker 04:
Council, in Manson versus Braithwaite, the Supreme Court said, specifically talking about Simmons and prior cases,

[00:13:38] Speaker 04:
The court reviewed Stovall and certain later cases where it considered the scope of due process protections against the admission of evidence derived from suggestive identification procedures.

[00:13:53] Speaker 04:
And in the seminal case of Neil V. Biggers, the Supreme Court said, we have considered citing Stovall

[00:14:03] Speaker 04:
On four occasions, the scope of due process protection against the admission of evidence deriving from suggestive identification procedures.

[00:14:13] Speaker 04:
What case do you have that says the police officer conducting an overly suggestive identification procedure is violating any constitutional right by conducting such a suggestive ID?

[00:14:30] Speaker 03:
Every one of the cases that we... Give me a name, please.

[00:14:36] Speaker 03:
Simmons.

[00:14:37] Speaker 04:
No, but the Supreme Court just said that's not what Simmons did.

[00:14:41] Speaker 04:
The Supreme Court in Neal v. Biggers and Manson v. Braithwaite specifically citing Simmons said, we held that the admission into evidence of the suggestive identification is what violated the defendant's constitutional rights, not the ID.

[00:15:01] Speaker 03:
I don't disagree with that, but what every court has said is when we send an officer out on the street to do an investigation, this is the assigned detective from the Violent Crimes Unit.

[00:15:15] Speaker 03:
He shows, does this interview.

[00:15:22] Speaker 03:
right, with both of them in the room intentionally in violation of his training.

[00:15:28] Speaker 03:
So he gets this piece of information.

[00:15:30] Speaker 03:
Now he can take it to the DA.

[00:15:32] Speaker 02:
All right.

[00:15:32] Speaker 02:
And then the DA, if he were doing his job, according to you, would say, well, I'm not going to use it because it's impermissibly suggestive.

[00:15:41] Speaker 02:
Or he could say, well, it's impermissibly suggestive, but I'm going to introduce it anyway because the second standard

[00:15:49] Speaker 02:
of reliability will be met here because the witnesses will be able to corroborate their identification.

[00:15:58] Speaker 02:
But whatever, it wasn't Arnett who decided to introduce it.

[00:16:03] Speaker 02:
I'm sorry?

[00:16:04] Speaker 03:
I'm sorry, I didn't mean to interrupt.

[00:16:06] Speaker 03:
Go ahead.

[00:16:07] Speaker 03:
The issue is, yes, it was the DA who decided to use it.

[00:16:13] Speaker 03:
It was the DA who got in evidence through our net and from this witness who obviously caused it.

[00:16:22] Speaker 03:
But the question in all of these cases is not,

[00:16:26] Speaker 03:
In all of the cases, Torres, whether it's chubby or it's here, let's just keep showing you the same guy.

[00:16:34] Speaker 03:
The conduit is always the police officer and the question is whether the police officer violated the person's right.

[00:16:41] Speaker 02:
Is there any case that has ever held that the...

[00:16:44] Speaker 02:
In my hypothetical, suppose they hadn't introduced the thing at all.

[00:16:49] Speaker 02:
Would that be a due process violation?

[00:16:52] Speaker 02:
I think it is.

[00:16:53] Speaker 02:
You think just doing it was a due process?

[00:16:57] Speaker 02:
Is there any case holding that?

[00:16:58] Speaker 03:
Because what you've done as the officer is, let's say she was going to pick number seven.

[00:17:04] Speaker 00:
So how do you deal with the Supreme Court?

[00:17:07] Speaker 00:
How do you just deal with what the Supreme Court said in Manson?

[00:17:10] Speaker 00:
Quote, a suggestive pre-indictment identification procedure does not in itself intrude upon a constitutionally protected interest.

[00:17:22] Speaker 03:
Well, it intrudes upon the process.

[00:17:27] Speaker 03:
It intrudes upon the process because you've removed a potential exculpatory witness.

[00:17:32] Speaker 00:
Do you have any case

[00:17:34] Speaker 00:
Supreme Court case is a Supreme Court case.

[00:17:36] Speaker 00:
Only the Supreme Court can abrogate itself.

[00:17:38] Speaker 00:
That suggests that we can do anything that we, notwithstanding what the Supreme Court said in Manson, say that in and by itself, regardless of what the officer told the prosecutor, regardless of what the prosecutor did at trial, in and by itself, violates the constitutional due process, right?

[00:17:59] Speaker 03:
I don't have a case that says this officer

[00:18:03] Speaker 03:
can do something that says he is civilly liable in this case if nothing happens.

[00:18:13] Speaker 02:
So then why don't we have a at least a qualified immunity problem?

[00:18:19] Speaker 03:
Because what the officers know is that they they're out there to get evidence allegedly to prove either guilt or innocence and when they go out and eliminate witnesses by violating

[00:18:34] Speaker 03:
Clients do process rights to to gather evidence not to have people Suggested or in this case not even suggested told pick number five council are you aware that?

[00:18:49] Speaker 04:
At least two of our sister circuits have specifically held That this issue doesn't fly that the officers aren't violating 1983 in this circumstance No, I'm not aware of those cases

[00:19:04] Speaker 00:
Council, I want to deal with suit because certainly I think if there were evidence that Officer Arnett had withheld information from the prosecutor, had not disclosed to the prosecutor the reasons for doubting the reliability of the second witness's photo ID, that there would

[00:19:26] Speaker 00:
the officer would then be essentially responsible for the ripening of the improper ID into a due process violation.

[00:19:36] Speaker 00:
Is there any, but the record here seems to me to indicate, Officer Arnett's declaration indicates that he put this in the police report and he gave the police report to the prosecutor.

[00:19:49] Speaker 00:
Do you dispute that evidence?

[00:19:51] Speaker 00:
Is there any genuine dispute about that evidence?

[00:19:54] Speaker 03:
There is, and I would, in the, in the, sir reply, there is, this is volume four, page 11, I'm sorry, in the SER, 1152, the prosecutor writes, and I don't care if the court

[00:20:18] Speaker 03:
Can I have permission to just say what the prosecutor wrote in her notes?

[00:20:20] Speaker 03:
We had it sealed, but I think it's important.

[00:20:26] Speaker 03:
He just threw out Brenda's ID.

[00:20:28] Speaker 03:
He said to Miguel number five, that is what she wrote.

[00:20:35] Speaker 03:
She wrote later, I'm so screwed.

[00:20:39] Speaker 03:
I'm so blanking pissed, I can't even believe him.

[00:20:43] Speaker 03:
I'm going to tell his boss, because

[00:20:46] Speaker 04:
He disclosed on the stand this information that she wanted to Keep when they they had talked about this so er 1773 Appears to be the oxnard police department follow-up report Okay, was this give isn't the evidence that this was given to the prosecutor and

[00:21:13] Speaker 03:
I believe that report was given to the prosecutor for the trial.

[00:21:20] Speaker 02:
Can I ask a procedural question?

[00:21:24] Speaker 02:
Both parties briefed this case otherwise.

[00:21:31] Speaker 02:
Would you like an opportunity to do any supplemental briefing?

[00:21:34] Speaker 02:
Is there anything you think would be helpful to us?

[00:21:38] Speaker 03:
I would love to because I would look at the decisions that the court has cited or referenced in other circuits to address that issue because this is not an issue that I understood was raised

[00:21:52] Speaker 03:
at the lower court or in any of the regions here.

[00:21:56] Speaker 02:
No, it wasn't particularly.

[00:21:57] Speaker 02:
It just sort of leaps out at one.

[00:22:01] Speaker 04:
Yeah.

[00:22:02] Speaker 04:
I don't know whether we're going to do that or not, but the two circuit cases that if we did, you might want to look at are in the Seventh Circuit, Blackman versus Jones, 132F4, 522, 2025, and in the Second Circuit, Ray versus City of New York,

[00:22:22] Speaker 03:
490 f 3rd 189 2007 There may well be others I Would appreciate the opportunity to address that Because it hasn't been it wasn't raised below and it wasn't raised in there in their briefs It maybe was somewhat peripherally raised in their groups, but not very directly Any other questions Thank you

[00:23:04] Speaker 02:
Could you begin by addressing the suggestion of additional briefing?

[00:23:11] Speaker 02:
You didn't argue the case the way that we're asking the questions now.

[00:23:15] Speaker 01:
That's fair, Your Honor.

[00:23:16] Speaker 01:
We did not argue it in that manner.

[00:23:19] Speaker 01:
Defendant Mr. Arnett would submit, however, that supplemental briefing is entirely unnecessary for several reasons.

[00:23:27] Speaker 01:
One of which is that this was extensively briefed in the district court.

[00:23:31] Speaker 02:
But this issue that we're now discussing wasn't briefed by anybody.

[00:23:35] Speaker 02:
It wasn't in the district court's decision either.

[00:23:40] Speaker 01:
That's correct, Your Honor.

[00:23:43] Speaker 01:
However,

[00:23:45] Speaker 01:
The issue here from Arnett's perspective is whether or not qualified immunity was properly granted under one or both prongs.

[00:23:55] Speaker 01:
And it remains the fact that plaintiffs still have not identified any controlling precedent and due to that failure,

[00:24:05] Speaker 01:
District Court should have granted qualified immunity to detective our net that's well settled settled Supreme Court You're arguing.

[00:24:13] Speaker 00:
There's no clear precedent that a suggestive Photo ID is not clearly established to be impermissible No, okay that this particular identification was not

[00:24:28] Speaker 04:
Obvious to any sort of reasonable officer that it was in violation of the law but to the to the questions that We have been asking your briefs Did not go to the issue of can there even be a constitutional violation by a police officer who conducts the Lineup but doesn't

[00:24:55] Speaker 04:
lie to the prosecutor and doesn't introduce it or admit it?

[00:25:02] Speaker 01:
Arnett would certainly be happy to... No, but you didn't argue that, right?

[00:25:06] Speaker 01:
Yes, I agree.

[00:25:08] Speaker 01:
Mr. Arnett did not argue that below or in this briefing.

[00:25:13] Speaker 01:
So to the extent that the panel would like supplemental briefing, we would obviously submit that.

[00:25:18] Speaker 01:
Arnett's position remains, however, that regardless of whether this court were to

[00:25:25] Speaker 01:
focus on the first inquiry or the first prong of the qualified immunity analysis or the second prong?

[00:25:31] Speaker 02:
The second prong only applies in court.

[00:25:33] Speaker 02:
I mean, that's sort of the proof of this, because the whole point of the second is whether there was something that occurred at trial that overcame whatever was impermissibly suggestive about the ID.

[00:25:46] Speaker 02:
And that's the whole genesis and role of that second prong.

[00:25:50] Speaker 02:
It has nothing to do with what happened at the ID.

[00:25:53] Speaker 02:
And your brief was confused on that issue, too.

[00:25:55] Speaker 01:
When I refer to the second prong, I'm referring to the second prong of the qualified immunity analysis.

[00:26:01] Speaker 02:
Oh, I see.

[00:26:01] Speaker 02:
I'm sorry.

[00:26:03] Speaker 01:
There are several prongs going around in this case.

[00:26:05] Speaker 02:
But the second prong of the ID standard is a court admission standard, and you haven't addressed that.

[00:26:13] Speaker 02:
I mean, you confuse that, too, by treating them both as if they applied at the ID stage, which they don't.

[00:26:20] Speaker 01:
We would concede that your honor is correct, that that's accurate.

[00:26:23] Speaker 01:
It was not briefed.

[00:26:24] Speaker 04:
All right, we thank council for their arguments and the case argued is submitted and with that we are adjourned for the day.

[00:26:31] Speaker 01:
Thank you very much.