[00:00:00] Speaker 02: And we'll proceed to hear argument in the next case on calendar for argument this morning, which is 24-6915 Beatrice Johnson versus City of Phoenix and the County of Maricopa. [00:00:46] Speaker 02: And we will hear first from Mr. Abney. [00:01:14] Speaker 03: Thank you, Your Honor. [00:01:15] Speaker 03: May it please the Court. [00:01:18] Speaker 03: My name is David Abmey. [00:01:19] Speaker 03: I'm representing the Plaintiff Appellant. [00:01:20] Speaker 03: It's a pleasure to see you again, Judge Hurwitz. [00:01:25] Speaker 05: It's a pleasure on my side, too. [00:01:29] Speaker 03: Over the last couple of weeks, I've been rereading The Iliad and The Odyssey. [00:01:33] Speaker 03: And when I read it in high school, it was just an adventure story. [00:01:36] Speaker 03: But now upon mature reflection, I see one of the basic themes is the treatment of the dead. [00:01:43] Speaker 03: How important it was to the Greeks that the family be notified at once that somebody has died and that the body be turned over immediately for the proper rituals and ceremonies to make sure that the deceased person was received into the afterlife properly. [00:01:58] Speaker 03: It was an important theme. [00:02:00] Speaker 03: And when it was violated, it was regarded as an extreme outrage. [00:02:04] Speaker 03: For instance, Achilles dragging the body [00:02:07] Speaker 03: of Hector around Troy in the back behind his chariot. [00:02:11] Speaker 03: And here we have the Rite of Sepulcher, which is the common law reflection of a tradition that goes back into ancient times that the survivors of a deceit and have a right to find out that their loved one has died as quickly as possible and to have the body turned over to them for the proper ceremonies and rituals, whether it's Christian, Buddhist, whatever it may be. [00:02:35] Speaker 05: Let me assume for purposes of discussion that you have, your client has a Arizona law claim against the city and county, which for sepulchre or for something else. [00:02:50] Speaker 05: Tell me why there's a constitutional violation here, which is why, which is necessary for section 1983 case. [00:02:58] Speaker 03: Well, here we have a suspect class and it's not, and I'll return to the homeless people as a suspect class. [00:03:05] Speaker 03: later, I hope. [00:03:06] Speaker 03: But we have a black family, a black person, a sister, and her deceased sister is black. [00:03:14] Speaker 03: And the allegations in the complaint are that they are being treated differently because they are black. [00:03:19] Speaker 05: And being black is a suspect class. [00:03:20] Speaker 05: I understand that's what the complaint says. [00:03:23] Speaker 05: Is there a plausible allegation that they're being treated differently because they're black? [00:03:28] Speaker 05: I just don't see anything in the allegations in the complaint that makes it plausible [00:03:33] Speaker 05: that they're being treated any differently than, perhaps your homeless class, but they just don't get around, put around how quickly they got to it in this case. [00:03:43] Speaker 03: Well, the complaint alleges that. [00:03:46] Speaker 05: I know, but it has to plausibly allege it. [00:03:48] Speaker 05: In other words, we either have to have intentional discrimination or a policy or customer practice. [00:03:56] Speaker 05: The naked allegation that one exists [00:03:59] Speaker 03: But that is what is alleged. [00:04:01] Speaker 05: Under Iqbal and Twombly doesn't get you there anymore. [00:04:04] Speaker 05: So you've got to have facts that make it plausible that a policy exists. [00:04:08] Speaker 05: Where are those facts? [00:04:11] Speaker 05: There's an article attached that really doesn't help me with that. [00:04:14] Speaker 05: And so those facts don't seem to be in the complaint, do they? [00:04:18] Speaker 03: But it's one thing to say we think they're there. [00:04:21] Speaker 03: It actually says there is this policy in practice. [00:04:23] Speaker 03: And here's an example that's in the complaint. [00:04:26] Speaker 03: The Hispanic gentleman who died in this crash [00:04:29] Speaker 03: His family was immediately notified. [00:04:31] Speaker 03: But the black family was not. [00:04:32] Speaker 02: But that raises the question under Iqbal. [00:04:36] Speaker 02: Did you plead sufficient facts to show that the county knew as soon as the decedent was identified who the next of kin was? [00:04:48] Speaker 03: Yes. [00:04:48] Speaker 02: You said on information and belief that they knew immediately. [00:04:53] Speaker 02: But what are the facts that show [00:04:58] Speaker 02: that the county knew and how they knew. [00:05:00] Speaker 02: It's just, it's a conclusory ultimate fact that's being pled. [00:05:05] Speaker 02: And there's no allegations that, oh, they knew from X record that it was so-and-so as, you know, brother, sister, whoever. [00:05:15] Speaker 02: There's no facts on that issue. [00:05:18] Speaker 02: It's just conclusively stated. [00:05:20] Speaker 03: Excerpt of record 91 paragraph 43 states that both the city and county knew [00:05:25] Speaker 03: who the associates and family members of Beatrice Sisters were. [00:05:29] Speaker 05: That's your complaint. [00:05:30] Speaker 03: Right. [00:05:31] Speaker 05: But that's the ultimate fact. [00:05:33] Speaker 05: What facts established that they knew that? [00:05:36] Speaker 05: In a different era of notice pleading, perhaps that would have been enough, but after Iqbal and Twombly, we need to have sufficient facts pled to make the conclusion plausible. [00:05:48] Speaker 03: But it specifically says that they have her records and the records specifically say [00:05:52] Speaker 03: that they knew the family members were and they had her fingerprints. [00:05:55] Speaker 03: All they had to do was run those well, notify the family members and no, no, just stop for a second. [00:06:00] Speaker 03: Oh, darn. [00:06:02] Speaker 05: Just because I want to be clear about this. [00:06:05] Speaker 05: I do. [00:06:05] Speaker 05: I do think the record shows that that identified the decedent relatively early on. [00:06:11] Speaker 05: But how can I why is it plausible to think that once the decedent was identified, the county knew who her next of kin was? [00:06:21] Speaker 03: They had her records from her fingerprint cards and her earlier encounters with law enforcement. [00:06:25] Speaker 05: You didn't allege that the fingerprint cards identified the next-of-kin, did you? [00:06:30] Speaker 03: And who it was. [00:06:32] Speaker 03: Yeah, it's the records and it's paragraph 43 and other points in the complaint that, yes, they did know who her family members were. [00:06:41] Speaker 05: You allege that, but do the fingerprint cards identify the next-of-kin? [00:06:46] Speaker 03: I don't think a fingerprint card does, but the allegation was that they had records where they knew who the family members were. [00:06:53] Speaker 05: I know you allege that, but I'm trying to figure out whether that's plausible. [00:06:57] Speaker 05: But the key... Why is it plausible that they had a record who identified the next of kin? [00:07:02] Speaker 03: Well, that was alleged. [00:07:03] Speaker 03: And you have to accept it as true at this stage of the proceedings, plus under, I think it's Rule 9 or 8, you can allege knowledge generally. [00:07:13] Speaker 03: And that's what they did. [00:07:14] Speaker 03: They allege, you have this knowledge. [00:07:16] Speaker 03: And that allegation sticks under, I believe it's rule nine, that you can allege knowledge generally. [00:07:21] Speaker 04: Is it your contention that there was some readily available record beyond the fingerprint card which identified next of kin? [00:07:31] Speaker 03: Yes, they had records on it. [00:07:32] Speaker 03: Yes, your honor. [00:07:34] Speaker 05: What record was that? [00:07:35] Speaker 05: What? [00:07:36] Speaker 03: Well, she's had encounters with law enforcement, and they listed next of kin, and the sisters listed as next of kin. [00:07:43] Speaker 03: They didn't notify any kin, by the way. [00:07:45] Speaker 03: It was, and they never did. [00:07:48] Speaker 03: What happened was the family members, after a couple days of no contact, they started calling around to try to find out what had happened. [00:07:55] Speaker 03: And eventually they wound up at the county medical examiner's office and they said, good thing you called us. [00:08:00] Speaker 03: We're just about ready to send out the body for cremation. [00:08:03] Speaker 03: So they were able to get the body. [00:08:04] Speaker 03: They had a funeral. [00:08:05] Speaker 03: They had all the proper services. [00:08:08] Speaker 03: And by this tiniest margin, they at least had some opportunity. [00:08:13] Speaker 03: It delayed, though. [00:08:15] Speaker 03: And the right of sepulchre is immediate notification and immediate turnover of the remains to the survivors so they can they can do their proper ceremony. [00:08:24] Speaker 05: Let me go back to these records because I've gone through the district court pleadings and the ruling below. [00:08:31] Speaker 05: Did you argue to Judge Snow that the county had in their hands a specific record that identified the next of kin yet didn't do anything about it? [00:08:42] Speaker 03: Yes, that was presented to the district court. [00:08:44] Speaker 05: No, that was the allegation and the complaint was presented. [00:08:47] Speaker 05: I don't see any reference to a specific record that that you contended the county had from which or the city had from which you could identify the next again. [00:08:57] Speaker 03: Honestly, I can't say today you're talking about arrest records. [00:09:01] Speaker 05: They're not in the record. [00:09:02] Speaker 05: They're not. [00:09:02] Speaker 05: There's no allegation about them. [00:09:05] Speaker 05: But I'm trying to figure out whether that argument was ever made below. [00:09:09] Speaker 05: Well, I understand you didn't represent [00:09:12] Speaker 03: No, but it was in the complaint itself, and the complaint was the subject of the motion dismissed, and everything has to be presumed to be true. [00:09:19] Speaker 03: I think you can take Iqbal to the extreme and say, well, not only it has to be plausible, you have to prove it in the complaint. [00:09:26] Speaker 03: Well, no, you don't. [00:09:27] Speaker 03: You simply have to make the allegations, which are regarded as true, and it's certainly plausible that the law enforcement authorities would know it. [00:09:33] Speaker 02: It has to be well-pleaded allegations. [00:09:34] Speaker 02: You have to plead facts and not conclusions. [00:09:36] Speaker 02: That's what Iqbal says. [00:09:38] Speaker 02: And you did it as to identity. [00:09:40] Speaker 02: You explained the facts as to how they determine identity. [00:09:43] Speaker 02: They ran their fingerprints. [00:09:44] Speaker 02: They had the records. [00:09:45] Speaker 02: You identified that. [00:09:47] Speaker 02: They didn't do that for the next kid. [00:09:48] Speaker 02: There's no facts. [00:09:50] Speaker 02: You just said they knew, but there's no facts to establish the plausibility of that inference. [00:09:57] Speaker 03: But you're allowed to say, you knew. [00:09:59] Speaker 03: You're allowed to do that under Rule 9. [00:10:02] Speaker 02: You can generally allege knowledge. [00:10:04] Speaker 02: Iqbal was about the Attorney General's intent in adopting a policy. [00:10:08] Speaker 02: So the whole rule is framed in terms of facts that give rise to a plausible inference of intent. [00:10:14] Speaker 02: So you can't just say because it's a knowledge issue that Iqbal doesn't apply, it would overrule Iqbal on its own terms. [00:10:21] Speaker 03: Well, it does. [00:10:21] Speaker 03: Although the complaint in Iqbal was as sketchy as you can imagine. [00:10:25] Speaker 03: This was not a sketchy complaint. [00:10:27] Speaker 03: In fact, I think this was the third shot at making it longer and more detailed. [00:10:31] Speaker 03: And they put in enough details. [00:10:33] Speaker 03: But if you say, police officers, you knew the next of kin, that is an adequate allegation under Rule 9. [00:10:41] Speaker 05: Assume that it is for a moment. [00:10:44] Speaker 05: I want to get to the alleged constitutional violation. [00:10:48] Speaker 05: Let's assume that you've pled all the stuff that you think. [00:10:50] Speaker 05: You've sufficiently pled all the stuff that you say you've pleaded. [00:10:56] Speaker 05: Is it, as I understand the record in this case, it was basically nine days between the time the body was found and when the authorities were notified and then the body was returned the next day. [00:11:11] Speaker 05: When does it become a constitutional violation? [00:11:14] Speaker 05: Is it a constitutional violation on day two, day three? [00:11:19] Speaker 05: I'm not clear what part of the Constitution is being violated here, but let's put that aside for a second. [00:11:29] Speaker 05: When in your view did it become a constitutional violation? [00:11:32] Speaker 03: You have an interplay of state law and constitutional law. [00:11:36] Speaker 05: State law is not the Constitution. [00:11:38] Speaker 05: As I said, you may have a terrific state law claim. [00:11:43] Speaker 05: At what point was the Constitution violated and then tell me what part of the Constitution was [00:11:52] Speaker 03: The Equal Protection Clause was violated because the sister was black and she was not given the same kind of notification that would have been given to a non-black person. [00:12:03] Speaker 05: So I don't think that part is sufficiently pleaded. [00:12:06] Speaker 05: You seem to be making another constitutional argument, which is that you've got to get the body back quickly or somehow the Constitution is violated. [00:12:15] Speaker 05: I'm trying to figure out where that comes from in the Constitution. [00:12:18] Speaker 03: Let's be a violation of due process of law. [00:12:21] Speaker 03: You have a due process right in Arizona at least, and I think in most jurisdictions, to have timely notification of a death and to have timely presentation or turning over of the body to the family members. [00:12:35] Speaker 03: That is a substantive right in Arizona. [00:12:38] Speaker 05: So the federal constitutional violation is the failure to follow Arizona law? [00:12:43] Speaker 03: Yes. [00:12:44] Speaker 03: And if they had been sufficiently steeped [00:12:48] Speaker 03: In state constitutional law, it's just a violation of the state constitutional right to due process as well. [00:12:53] Speaker 02: So, I mean, the count and the complaint on this issue, count three, is a federal claim that's based on the underlying state right of sepulcher. [00:13:06] Speaker 02: It's not a state common law sepulcher claim directly. [00:13:12] Speaker 03: No, that's into the negligence area, violation of state law. [00:13:16] Speaker 03: If I may preserve my time, I'd love to chat with you for hours about this. [00:13:21] Speaker 04: Can I ask you one quick question? [00:13:23] Speaker 04: Yes, Your Honor. [00:13:24] Speaker 04: Do your clients have a negligence claim against the city? [00:13:28] Speaker 03: Yes. [00:13:29] Speaker 03: There is a common law duty imposed upon the government to provide notification and turn over a body. [00:13:35] Speaker 04: No, I'm speaking in terms of this, as I understand it, this horrible event occurred when these two individuals were in a valid [00:13:46] Speaker 04: crosswalk and they were hit and killed by a drunk driver. [00:13:50] Speaker 04: An intersection that the city had previously designated as high risk or something like that. [00:13:56] Speaker 03: They were in an intersection area. [00:13:58] Speaker 03: I'm not sure that they were in the crosswalk itself, but they were in a dangerous area and the city had taken no steps to provide proper lighting, warning, et cetera. [00:14:07] Speaker 04: So my question is, do you have a pending negligence claim, wrongful death claim against the city? [00:14:15] Speaker 03: Yes, your honor. [00:14:15] Speaker 03: I think it got tossed out with the bathwater, though. [00:14:18] Speaker 05: Well, because it was the judge didn't take pendent, didn't take over your state jurisdiction. [00:14:23] Speaker 04: But do you have a filed state law claim? [00:14:28] Speaker 03: No, your honor. [00:14:29] Speaker 04: Are you beyond the statute? [00:14:31] Speaker 03: If the if the statute is suspended while we're in federal district court, we're fine. [00:14:36] Speaker 03: And I think it would be. [00:14:37] Speaker 04: OK, that's all I wanted. [00:14:38] Speaker 03: I pray at least at least. [00:14:40] Speaker 02: Yes. [00:14:41] Speaker 03: Thank you, honor. [00:14:42] Speaker 02: Thank you. [00:14:42] Speaker 03: Preserve my whatever I preserved. [00:14:44] Speaker 02: Thank you, Council. [00:14:45] Speaker 03: Thank you. [00:14:46] Speaker 02: So we'll hear first from Ms. [00:14:49] Speaker 02: Retz. [00:14:50] Speaker 02: Is that correct or oh, okay. [00:14:52] Speaker 02: I have it listed the other way. [00:14:54] Speaker 02: All right. [00:14:54] Speaker 02: So Mr. Moore, we'll go first for five minutes. [00:14:57] Speaker ?: Okay. [00:15:10] Speaker 01: You may proceed. [00:15:11] Speaker 01: Thank you, Your Honor, and good morning. [00:15:12] Speaker 01: My name is Sean Moore. [00:15:13] Speaker 01: I represent Maricopa County in this matter. [00:15:15] Speaker 01: I only have five minutes, so I'm going to jump right into it. [00:15:18] Speaker 01: But I'm not sure how much there is to jump into, because as Your Honors noted, there are very few actual relevant factual allegations in the complaint in this case. [00:15:30] Speaker 01: Plaintiff's claim is largely based upon an assertion that they did not receive timely notice of their relative's demise. [00:15:38] Speaker 01: But the complaint is completely devoid of any allegations related to that. [00:15:41] Speaker 01: Your honors touched on the fact that there were no detailed or factual allegations that the defendants knew of the next of kin information at any point prior to receiving contact from the next of kin. [00:15:52] Speaker 01: But beyond that, there's no allegation of timing. [00:15:55] Speaker 01: You have to, I mean, their whole argument is that they received late notice, we waited too long to let them know that their relative died, but there's not a single allegation related to timing in the entire case. [00:16:07] Speaker 01: They don't allege when we learned the next of kin information. [00:16:10] Speaker 01: They don't allege when we should have told them the next of kin information. [00:16:13] Speaker 01: They don't allege anything related to how the delay caused them any harm. [00:16:17] Speaker 01: And so without any allegations related to timing. [00:16:20] Speaker 05: Let me give you a hypothetical. [00:16:22] Speaker 01: Sure. [00:16:23] Speaker 05: Let's assume you [00:16:25] Speaker 05: as in this case, find the body is transmitted to the county medical examiner and you do the fingerprinting and you determine who the person is and then you do nothing for months or years or decades. [00:16:42] Speaker 05: Is there a constitutional violation under that circumstance? [00:16:45] Speaker 01: I don't think that there would be a constitutional violation, Your Honor. [00:16:48] Speaker 01: They may or may not be a violation of the common law. [00:16:53] Speaker 05: Isn't there some sort of [00:16:54] Speaker 05: property interest that the family has in the body. [00:16:59] Speaker 01: Yeah, so the family does have a property interest in the body. [00:17:02] Speaker 01: And what the common law says is that as long as that body receives a proper burial, there is no violation of that interest. [00:17:09] Speaker 05: Even if you delay it for decades? [00:17:13] Speaker 01: Presumably, if you could take it out for decades, there would certainly be an argument that there is a property rights violation in there, but I just don't know what the constitutional violation- Well, I'm trying to figure out what the dividing line is between the property rights violation and no property rights violation. [00:17:28] Speaker 05: Is it that because the body was returned, everybody seems to agree within 10 days after it was found, there can't be a constitutional violation or is there [00:17:39] Speaker 05: Is there some other way I can determine whether there was a constitutional violation? [00:17:44] Speaker 01: I don't think there would be a constitutional violation in any instance, Your Honor. [00:17:48] Speaker 05: Even if they kept it forever? [00:17:50] Speaker 01: Right. [00:17:50] Speaker 01: I think there would be certainly common law property claims, but I don't think there's a constitutional issue there. [00:17:55] Speaker 01: And when Mr. Abney was asked this question, right, what's the constitutional violation, he said that there's a due process violation there. [00:18:03] Speaker 01: But the problem is that argument is circular because the whole idea of a due process violation is that I have a constitutional right and that right was taken from me because and I wasn't given, you know, a proper process when it was taken from me. [00:18:16] Speaker 01: That doesn't establish the right in itself. [00:18:18] Speaker 05: He's making a substantive due process argument. [00:18:21] Speaker 05: He's not making [00:18:22] Speaker 05: a procedural due process argument. [00:18:24] Speaker 05: I don't think he says he was denied a procedure. [00:18:27] Speaker 05: He says that [00:18:28] Speaker 05: they had a substantive right to return of the body, and that you denied them that right. [00:18:34] Speaker 01: I agree, but what I'm saying is that the argument is circular, because you asked him what constitutional right would be violated. [00:18:40] Speaker 01: The only thing he said was due process. [00:18:42] Speaker 02: But in order for there to be a due... But he also said equal protection, and why isn't it prima facie case here? [00:18:48] Speaker 02: You have an incident with two people who were not of the same race, and they're not treated the same. [00:18:53] Speaker 02: I mean, that standard kind of prima facie case, there may be other elements, [00:18:57] Speaker 02: Why isn't that enough? [00:18:59] Speaker 01: So it's not. [00:19:00] Speaker 01: So if you look at the complaint, there's only one factual allegation that relates to race. [00:19:05] Speaker 01: Most of the factual allegations relate to homelessness, which is not at issue in this case. [00:19:09] Speaker 01: There's only one factual allegation that relates to race. [00:19:12] Speaker 01: And that allegation says, basically, black people are disproportionately homeless. [00:19:18] Speaker 01: That has no bearing whatsoever on the notice of deceased relatives or any of the... My question was, [00:19:24] Speaker 02: The incident involved two different people who were not of the same race. [00:19:29] Speaker 02: One got immediate notification, one didn't. [00:19:31] Speaker 02: There may be explanations for that, but normally in discrimination law, that's a prima facie case, similarly situated, different treatment. [00:19:39] Speaker 02: Then you go on to explanation and rebuttal, but why isn't that enough for a prima facie case just on that? [00:19:47] Speaker 01: Well, because for a couple of reasons, Your Honor. [00:19:51] Speaker 01: One, there are a bunch of elements to an equal protection claim that that one single fact doesn't meet an intent to discriminate what the policy is, all of these other things. [00:20:01] Speaker 01: But even just taking those two things in isolation, I don't think one singular instance of one person being treated differently than another for potentially factually different reasons. [00:20:12] Speaker 01: I don't think that creates the [00:20:14] Speaker 01: depth of factual allegation necessary to state an equal protection claim. [00:20:19] Speaker 01: And beyond that, the other person was also a racial minority. [00:20:23] Speaker 01: So I don't see why that would be the result of any intentional decision to discriminate. [00:20:28] Speaker 05: It seems to me your more apt argument is that Menell requires a practice or policy. [00:20:35] Speaker 01: Right. [00:20:35] Speaker 05: And while this may be enough facially to establish disparate treatment, [00:20:41] Speaker 05: it may not be enough to establish a practice of policy. [00:20:45] Speaker 05: It does seem to me to show that two people of different races were treated differently. [00:20:49] Speaker 05: There may be a good explanation for it. [00:20:52] Speaker 05: But because this is Menel territory, there has to be a sufficient allegation of practice or policy, does there not? [00:20:59] Speaker 01: Yeah, that's correct, Your Honor. [00:21:00] Speaker 01: And I alluded to that when I said there are several other reasons why the claim fails. [00:21:05] Speaker 01: I was just trying to answer. [00:21:06] Speaker 05: Yeah, but I'm not sure I find convincing your argument that the other person was Hispanic and therefore it doesn't establish, it's no evidence of racial discrimination. [00:21:17] Speaker 01: Well, I think the argument was more that a single isolated incident does not establish the whole category of how the policies of governmental entity intentionally treat an entire group of people. [00:21:27] Speaker 04: Do we know factually how it came to pass? [00:21:32] Speaker 04: that officials were able to notify the family of Mr. Gutierrez and not Ms. [00:21:39] Speaker 04: Chambers? [00:21:40] Speaker 01: So, I mean, just going off of the motion to dismiss that, or just going off of the complaint because this is a motion to dismiss, I don't believe that that is in the record such as it exists on the motion to dismiss stage. [00:21:53] Speaker 01: But I see I'm out of time. [00:21:54] Speaker 01: We have 10 more minutes. [00:21:55] Speaker 04: Well, the answer to my question is no, we don't. [00:21:57] Speaker 04: No, we don't, Your Honor. [00:21:58] Speaker 01: Yeah, you're right. [00:21:59] Speaker 01: Thank you. [00:22:01] Speaker 02: Thank you, counsel. [00:22:02] Speaker 02: We'll hear now from Ms. [00:22:04] Speaker 02: Retz. [00:22:05] Speaker 00: Good morning, Your Honor. [00:22:06] Speaker 00: It's Christina Retz on behalf of the city. [00:22:10] Speaker 00: May it please the court? [00:22:12] Speaker 00: Answering the question that was posed, it is not on the record how Mr. Gutierrez was identified. [00:22:17] Speaker 00: We do know that fact. [00:22:20] Speaker 00: And this requires stepping backwards. [00:22:22] Speaker 00: And I think this entire case requires stepping backwards to the foundations of how a person is identified when they do not have identification on their person. [00:22:31] Speaker 00: And the way we identify people is through fingerprints, through DNA, or through dental records. [00:22:37] Speaker 00: In this instance, the specific allegation is that the identification came through fingerprints. [00:22:42] Speaker 00: So if we are looking at a policy in custom for the city, we need to look to that database. [00:22:48] Speaker 00: That database is the CJIS database that is set up by the state of Arizona. [00:22:53] Speaker 00: There is a statute that sets that up. [00:22:56] Speaker 00: And there are specific requirements for what information can be within that database and what information cannot be within that database. [00:23:05] Speaker 00: And that statute is ARS 41 1750. [00:23:08] Speaker 00: For Fourth Amendment privacy rights, there can only be criminal justice information within that database. [00:23:15] Speaker 00: So the decedent was identified because she has a criminal history. [00:23:20] Speaker 05: Is there anything in this record that lets us know whether her criminal history record identified next of kin? [00:23:28] Speaker 00: There is nothing in the record. [00:23:30] Speaker 05: What is the statute? [00:23:32] Speaker 00: The statute prohibits putting that type of information in. [00:23:36] Speaker 00: You may not include victim information. [00:23:38] Speaker 00: You may not include information from folks who were not suspects found guilty of a crime. [00:23:45] Speaker 05: And the reason is very important. [00:23:48] Speaker 05: I think my question wasn't precise enough. [00:23:50] Speaker 05: I assume that the decedent had either been arrested or convicted of a crime, therefore there was criminal history information. [00:23:58] Speaker 05: Correct. [00:23:59] Speaker 05: And therefore I think the statute would allow the retention of information about her, correct? [00:24:06] Speaker 00: The retention about her only, which is why she was identified. [00:24:09] Speaker 05: Okay, but does the statute prohibit retention of information about her next of kin? [00:24:14] Speaker 05: Yes. [00:24:15] Speaker 05: Tell me where it says that. [00:24:18] Speaker 00: not specifically by the words, but by exclusion. [00:24:21] Speaker 00: You can only have criminal history in there. [00:24:23] Speaker 00: And the reason is because that is a database that is searched across this country for things like fingerprint clearance, for housing. [00:24:31] Speaker 00: And so there are very specific requirements about what that can go in there to avoid discrimination for folks who do not have a criminal history. [00:24:40] Speaker 00: So we do not want folks to be discriminated against because of their connection to [00:24:46] Speaker 00: folks who do have a criminal history. [00:24:48] Speaker 00: There is no warehousing of that information. [00:24:50] Speaker 00: It would be a huge Fourth Amendment problem, in my view, to create a class of folks who don't have a criminal history and may be guilty by association. [00:25:00] Speaker 00: So then that means that if you have a criminal history hit because you come back to a police report, you would have to go to that police report in order to find if there is anybody listed in that. [00:25:12] Speaker 05: Can you explain to me, maybe this record doesn't have it in it, [00:25:16] Speaker 05: I understand the city and the medical examiner may have different roles. [00:25:19] Speaker 05: The city finds the body, brings it to the medical examiner's office. [00:25:23] Speaker 05: In the meantime, had conducted the fingerprint analysis to identify the victim. [00:25:30] Speaker 05: What is, what are the city's obligations under state law with respect to the, the body after delivering to the medical examiner? [00:25:38] Speaker 00: I would argue that there are no obligations. [00:25:41] Speaker 00: There is no duty whatsoever. [00:25:42] Speaker 00: There's also no duty under state law to provide a next of kin notification at all. [00:25:46] Speaker 00: That specific issue was addressed in the Gera case. [00:25:50] Speaker 00: The Supreme Court addressed that. [00:25:51] Speaker 00: That was a misidentification of a next of kin notification. [00:25:55] Speaker 00: And a person was identified as deceased when they were non-fact deceased in a lawsuit followed from that. [00:26:01] Speaker 00: And the court, based upon public policy, found that there was no duty. [00:26:06] Speaker 00: There was no special relationship. [00:26:09] Speaker 00: It fell along the line of cases in Arizona that talks about no specific duty to investigate in any particular manner or specific time either. [00:26:18] Speaker 00: So there is a line of cases that relates specific to that in Arizona as well. [00:26:23] Speaker 00: One of the key cases is Hoag versus City of Phoenix, related to the baseline killer. [00:26:27] Speaker 00: Allegations that the victims, that they would not have been victims if certain DNA evidence had been tested in a faster time frame. [00:26:38] Speaker 00: Little bit analogous here because we're talking about a time frame and the court said there was no obligation to identify or investigate or conduct the investigation within a specific amount of time. [00:26:50] Speaker 00: So here you have a [00:26:52] Speaker 00: non-obvious issue of next of kin. [00:26:55] Speaker 00: Generally speaking, when we identify next of kin, it is because the person has an address and they live at a place with the next of kin. [00:27:03] Speaker 05: Well, now you're sort of moving outside the boundaries of the complaint. [00:27:08] Speaker 05: Let's assume for a moment that Mr. Avney's client sufficiently alleged that the city had information about who the next of kin was on day two, if you will. [00:27:22] Speaker 05: Would there be, and you didn't pass it on, I know you don't think that's alleged and you say you didn't do it, but if that had occurred, would there be a Section 1983 violation? [00:27:36] Speaker 00: No, Your Honor, and I believe that goes back to the substantive due process righted issue. [00:27:40] Speaker 00: In the Chandry case in the Ninth Circuit that talks about the fact that there was not a due process problem when there was a delay in return of an individual [00:27:51] Speaker 00: that there's no specific time frame. [00:27:56] Speaker 00: The right is to receive the body at some point. [00:27:59] Speaker 00: At any point? [00:28:00] Speaker 00: At any point. [00:28:01] Speaker 00: Decades later? [00:28:03] Speaker 00: Yes. [00:28:04] Speaker 00: And that happens. [00:28:06] Speaker 05: That happens because... But I asked you to assume for a moment that you knew to whom it should go. [00:28:12] Speaker 05: Those cases don't involve a case in which there's an allegation that they knew to whom it should go, but nonetheless held onto [00:28:19] Speaker 00: That is fair and, Your Honor, I would also say that this is not once the body transfers over, the city doesn't have the rights to the body. [00:28:27] Speaker 00: The body has gone to the county. [00:28:29] Speaker 00: When you look at the statutes in terms of who has a duty to bury, none of that falls within the city or the city's responsibility either. [00:28:38] Speaker 00: I think there's a fundamental problem here with this allegation of Manel is that the [00:28:47] Speaker 00: Plaintiff has started with an equal protection claim. [00:28:50] Speaker 00: They have started with a 14th Amendment claim, but they haven't gotten to the place of seeing that there is a policy in custom of delaying a notification of not being able to notify folks, which may just happen to be because the individual, for example, lists a shelter as their last place of address where Mr. Gutierrez lists a residence that he lived at a next of kin with. [00:29:16] Speaker 00: And so there are a lot of practicalities involved in identifying people that are individualized and have no specific tie to a person's race. [00:29:25] Speaker 00: That there may be a disparate effect, but it's not because of any type of intentional discrimination. [00:29:31] Speaker 00: It's because of the factual circumstances surrounding this person's life. [00:29:37] Speaker 00: And what data is out there about them? [00:29:40] Speaker 00: How much is out there? [00:29:42] Speaker 00: How many connections did they have? [00:29:43] Speaker 00: What addresses did they use? [00:29:45] Speaker 00: But there's nothing in this complaint at all about any type of policy and custom on the city and if we are looking at the. [00:29:53] Speaker 00: The means within which the city is using to identify folks those are databases that are not within the city's control either the city doesn't have the right to set the rules for. [00:30:03] Speaker 00: Arizona's database for CJIS information. [00:30:06] Speaker 00: In fact, a lot of that trickles down from the federal regulations, the CFRs, as to what data can specifically be within those databases. [00:30:16] Speaker 00: The city did not have custody of the body after it was turned over. [00:30:21] Speaker 00: You have an instance here where a legitimate investigation was still ongoing and triggering again into those cases under state law. [00:30:32] Speaker 00: So I disagree with Mr. Abney that there is a due process right to a next of kin notification existing under Arizona law. [00:30:39] Speaker 00: That is not correct based upon the case law. [00:30:42] Speaker 00: Guerra specifically rejected that, did not identify a statutory basis, a constitutional basis, a public policy basis for a next of kin notification. [00:30:53] Speaker 00: And that's really the crux of this case. [00:30:55] Speaker 00: There may be other cases where there are rights to a body because of the time, but this case is a very narrow window of time of 11 days. [00:31:03] Speaker 00: And the fact that the family did actually take control of the body, there was no mutilation of the body. [00:31:12] Speaker 00: There was no taking of corneas, for example. [00:31:15] Speaker 00: The Ninth Circuit case Newman that talks about rights to children talks about a procedure in due process that you would have to give the parents of children if their corneas were removed. [00:31:31] Speaker 00: We're not even in that sphere. [00:31:33] Speaker 02: Can I ask a question about account four? [00:31:38] Speaker 02: As I understand it, account four [00:31:41] Speaker 02: The merits of it were not decided, but it was declined for supplemental jurisdiction as in the colloquy with with Judge Hawkins. [00:31:51] Speaker 02: Is that correct? [00:31:52] Speaker 00: Yes, that's correct. [00:31:52] Speaker 00: Declined. [00:31:53] Speaker 00: And at the time to under Arizona's wrongful death statute, a sibling does not have a right to assert a wrongful death claim. [00:32:00] Speaker 02: Right. [00:32:00] Speaker 02: But but the district court did not reach anything about the merits. [00:32:04] Speaker 00: That is correct. [00:32:05] Speaker 00: It was remanded, not refiled. [00:32:06] Speaker 02: But the district court's order says that the complaint is dismissed with prejudice and doesn't say anything about remanding that claim or dismissing it without prejudice. [00:32:18] Speaker 02: Do we need to order that to be corrected? [00:32:21] Speaker 00: That may be technically in the end that the judge should have been more clear, but in the body, the judge specifically says that it was. [00:32:30] Speaker 02: It's clear from the substance. [00:32:32] Speaker 02: But then you get to the end and it says dismissed with prejudice. [00:32:34] Speaker 02: And if the claim is being declined because all the federal claims are dismissed, the federal claims are dismissed with prejudice and the state law claim is dismissed without prejudice. [00:32:44] Speaker 02: And then 1367 has a window for refiling it. [00:32:52] Speaker 00: Technically, Your Honor, I would suppose that would be the case. [00:32:54] Speaker 00: I don't think that it saves it because it is clear from the face. [00:32:58] Speaker 02: That may be true. [00:32:59] Speaker 02: But again, he didn't reach the merits, so we can't. [00:33:02] Speaker 02: and it didn't resolve it on that basis. [00:33:06] Speaker 05: Yes, sir. [00:33:06] Speaker 05: OK. [00:33:06] Speaker 05: As far as you're concerned, they could now file in state court and pursue count four. [00:33:12] Speaker 00: And I would have expected they would have done this while this was proceeding. [00:33:16] Speaker 05: Well, it may be that I tend to think Mr. Abney's right about this, that the statute of limitations is told while the case is up on appeal. [00:33:26] Speaker 00: And Your Honor, we do have other arguments that we would just preserve the fact that there was not a personal representative on the right side. [00:33:30] Speaker 02: I understand you'd make them if the case gets refiled. [00:33:32] Speaker 02: Yes. [00:33:34] Speaker 02: Okay. [00:33:34] Speaker 02: All right. [00:33:34] Speaker 02: Thank you, counsel. [00:33:35] Speaker 02: We'll hear rebuttal. [00:33:43] Speaker 03: My colleague from the city says that the city has no obligations, no duty whatsoever, but Arizona has adopted the common law as the rule of decision and the common law provides that there is a right of sepulcher in Arizona. [00:33:59] Speaker 03: In addition, as the court knows, [00:34:02] Speaker 03: Liability is the rule and immunity is the exception when you're talking about public entities. [00:34:07] Speaker 03: So here there is, I think that the statement that there are no obligations and no duty whatsoever which was specifically made by the city and I think implicitly made by the county is incorrect. [00:34:17] Speaker 03: There is a duty and the duty was violated. [00:34:26] Speaker 03: There is enough here to go forward on the claim of disparate treatment. [00:34:31] Speaker 03: Within the complaint itself you have one example of it and then there are allegations of knowledge and disparate treatment. [00:34:39] Speaker 03: I submit that for all these allegations of the city knew, the county knew that it needs to be treated under Rule 9 as a general proper allegation and you don't have to get into the specifics of how did you know? [00:34:52] Speaker 03: You knew and now it's up to you to come into court and say I didn't know and here's why I didn't know. [00:35:01] Speaker 03: I could go on at length, but I would invite specific questions. [00:35:05] Speaker 03: And if there are none, I would release us all to lunch. [00:35:08] Speaker 02: Not all of us. [00:35:09] Speaker 02: All right. [00:35:10] Speaker 02: Thank you, counsel. [00:35:11] Speaker 02: The case you argued will be submitted.