[00:00:00] Speaker 01:
Good morning, Your Honor.

[00:00:01] Speaker 01:
Jose Zolodon Cepeda, San Francisco City Attorney's Office for Defendant Officer Jeffrey Luby.

[00:00:06] Speaker 01:
I'd like to reserve five minutes for rebuttal, please.

[00:00:09] Speaker 00:
Let's do our best on that, okay?

[00:00:12] Speaker 01:
Thank you.

[00:00:14] Speaker 01:
May it please the court, the doctrine of qualified immunity gives government officials ample breathing room to make reasonable but mistaken judgments about open legal questions.

[00:00:24] Speaker 01:
In the context of law enforcement personnel,

[00:00:27] Speaker 01:
faced with evolving situations requiring split-second decisions about the appropriate use of force.

[00:00:33] Speaker 01:
It requires courts to view the facts from the perspective of an officer at the scene, not with the hindsight afforded by the passage of time.

[00:00:40] Speaker 01:
In this case, during a raucous celebration in San Francisco, with hundreds of drunken revelers celebrating the Warriors Championship on June 2022,

[00:00:50] Speaker 01:
Defendant Officer Luby and other police officers were working to maintain order and they confronted an individual who out of the blue walked across the busy street making a beeline in an aggressive manner directly towards a fellow police officer and attempted to make physical contact with him as the officer performed his duties in trying to help an individual who had climbed up a light pole.

[00:01:12] Speaker 01:
Despite the fact that the officer tried to move away

[00:01:15] Speaker 01:
and told the individual to back away.

[00:01:19] Speaker 01:
The individual, Plaintiff Anthony Navarro, did not back away and instead continued to accost the officer.

[00:01:25] Speaker 01:
These facts are undisputed.

[00:01:28] Speaker 01:
At one point, Navarro pushed Defendant Officer Luby, causing officers... Hold on, so I think that is disputed.

[00:01:33] Speaker 02:
Yes, Your Honor.

[00:01:34] Speaker 02:
Okay, so let's be clear.

[00:01:35] Speaker 02:
At this stage of the proceedings, we have to assume their facts are correct.

[00:01:40] Speaker 02:
Yes, Your Honor.

[00:01:40] Speaker 02:
So we probably shouldn't be talking about pushing the officer.

[00:01:43] Speaker 02:
According to their version,

[00:01:45] Speaker 02:
He didn't push the officer, and the officer threw him to the ground.

[00:01:49] Speaker 02:
So let's focus on their version of the facts, because we're not redoing summary judgment now.

[00:01:54] Speaker 02:
We're on this very odd procedural point.

[00:01:57] Speaker 01:
Yes, Your Honor.

[00:01:57] Speaker 01:
And I was going to get to the point to point out the fact that that is one of the important aspects of the case.

[00:02:03] Speaker 01:
And I think it's important to take apart that particular allegation.

[00:02:06] Speaker 01:
And for this purposes, I think it's important to separate

[00:02:09] Speaker 01:
an allegation that the plaintiff makes versus what's supported by evidence.

[00:02:14] Speaker 02:
Again, what we can't get into at this stage, reweighing whether some rejudgment should have been granted.

[00:02:19] Speaker 02:
It sounds like that's what you're trying to ask us to do.

[00:02:21] Speaker 01:
No.

[00:02:21] Speaker 01:
No, I'm not, Your Honor.

[00:02:22] Speaker 01:
As this court has held in the state of Anderson versus March on a qualified immunity appeal,

[00:02:31] Speaker 01:
this court can assess whether the version of the plaintiff is supported by evidence.

[00:02:36] Speaker 00:
And that's what we're asking the court to do, to look at what the evidence actually supports in terms of this particular... Well, the evidence being his statement or... Because at this point, we have to assume that's what his statement is.

[00:02:50] Speaker 01:
His deposition testimony, Your Honor.

[00:02:52] Speaker 01:
That's what we're asking this court to look at, his deposition testimony.

[00:02:56] Speaker 01:
And what's important to go ahead and I have citations to the record in terms of plaintiffs deposition testimony what plaintiffs testified and this is that exercise of record 279

[00:03:06] Speaker 01:
is that he blacked out and did not recall one to two seconds before the takedown.

[00:03:13] Speaker 01:
And that is the key part of this.

[00:03:15] Speaker 00:
But do we not take the allegation in the complaint?

[00:03:18] Speaker 00:
I mean, at this stage?

[00:03:19] Speaker 01:
No, Your Honor, because the complaint was not verified.

[00:03:21] Speaker 01:
So therefore, the complaint is not evidence for purposes of summary judgment.

[00:03:25] Speaker 02:
So where in the state of Anderson, can you walk me through that case, says that we can basically disregard their version of the facts and reweigh them at this stage?

[00:03:32] Speaker 01:
No, what I'm saying is that the court first of all it's footnote three in the state of Anderson versus Marsh Okay, and what the court said there is that the court can assess whether plaintiffs version is supported by evidence I'm pulling it up right now So it says we have held we may review claims were that a plaintiff has presented no evidence that

[00:04:03] Speaker 02:
such that his arguments about the illegality of the defendant's conduct are premised on bare allegations.

[00:04:08] Speaker 02:
So you're saying there's no evidence to support their version of it?

[00:04:11] Speaker 02:
Correct, Your Honor.

[00:04:12] Speaker 02:
And what's the basis for saying there is no evidence?

[00:04:15] Speaker 01:
Because what plaintiffs relied on to support the allegation that he did not push Officer Luby, the only evidence that he had was his deposition testimony.

[00:04:25] Speaker 01:
So there is evidence.

[00:04:26] Speaker 01:
Well, that brings us to what the deposition testimony actually said.

[00:04:30] Speaker 01:
And what he said is that he did not recall.

[00:04:34] Speaker 01:
And the fact that he did not recall, there's multiple cases that have held that an individual does not recall something is not the same as saying that there is not the fact that it happened.

[00:04:45] Speaker 02:
But the fact that there's no evidence to say he wasn't pushed to the ground, there's no evidence to say, I mean, there's no evidence that he made contact with the officer either way, correct?

[00:04:54] Speaker 01:
No that's not correct your honor there's countervailing evidence that he did make contact with the officer and that he did push the officer.

[00:05:00] Speaker 02:
Okay but again at this stage we have to disregard that because again we're at this very limited procedurally we have to take their version of the fact so I mean I appreciate what you're saying there's literally none

[00:05:12] Speaker 02:
But I've watched the video.

[00:05:13] Speaker 02:
You can't tell what happened.

[00:05:15] Speaker 02:
He's alleging his complaint that it did happen a certain way.

[00:05:18] Speaker 02:
And don't we have to go that way?

[00:05:20] Speaker 02:
Otherwise, I don't know what we're doing here.

[00:05:21] Speaker 02:
It sounds like we're just doing summary judgment all over again.

[00:05:23] Speaker 01:
No, Your Honor.

[00:05:24] Speaker 01:
And there is more evidence than just the video.

[00:05:28] Speaker 01:
And the video is something that we're asking the court to look at and draw its own conclusions.

[00:05:32] Speaker 01:
And I have citations.

[00:05:34] Speaker 02:
But again, we can't draw our own conclusions from it.

[00:05:36] Speaker 01:
We have to take their versions of the facts.

[00:05:38] Speaker 01:
To the extent that that version of the facts is supported by competent evidence, Your Honor, that's what the State of March holds.

[00:05:46] Speaker 01:
And besides the video, there's also additional testimony, evidence bearing on this particular issue.

[00:05:56] Speaker 02:
Both officers testified regarding this particular... Okay, but again, I don't want to dominate the argument on this, but it seems to me that all of our cases say at this stage, we cannot do what you're asking us to do.

[00:06:08] Speaker 01:
And I want to make sure I make it clear, Your Honor, that I'm not asking the court to reweigh the evidence.

[00:06:13] Speaker 01:
I'm asking the court to look at what it is that the plaintiff has in support of his version of... Compared to what the officer said, which is weighing the evidence.

[00:06:24] Speaker 01:
I am saying is that looking at his deposition testimony, what he testified is that he did not remember pushing the officer in the context of also stating

[00:06:34] Speaker 02:
that his memory was fuzzy and I have... But if I don't remember doing something, isn't that evidence I didn't do it?

[00:06:40] Speaker 01:
No, Your Honor.

[00:06:41] Speaker 01:
Not in this particular context.

[00:06:44] Speaker 01:
First of all, what the plaintiff said is that his memory was fuzzy and that he kind of blacked out a second before the incident.

[00:06:53] Speaker 02:
Right, but that's still... I mean, it may not be the best evidence, but if someone said, hey, did you punch a guy yesterday?

[00:06:57] Speaker 02:
Because I don't remember doing that.

[00:06:59] Speaker 01:
I think it's important.

[00:07:02] Speaker 01:
In a different context, in this particular case, the district court looked at plaintiffs making a similar allegation as to whether he was warned to back away by Officer Horton.

[00:07:15] Speaker 01:
And because the district court, we think, correctly concluded, the fact that the plaintiff said that he did not recall something does not create

[00:07:22] Speaker 01:
a triable issue of fact for summary judgment purposes.

[00:07:26] Speaker 00:
I'm trying to understand your argument here, but what we have then is the officers taking him down, and you're saying that's not enough, even though that's consistent with what he alleges and what he later says happened.

[00:07:45] Speaker 00:
just supposed to view it from that point forward, the officers taking him down and taking him and then what the video showed in terms of him bent over.

[00:07:56] Speaker 00:
We're just supposed to look at that and make a determination, but not redo the summary judgment on whether or not there's sufficient facts for this to go forward.

[00:08:08] Speaker 00:
I'm trying to understand your argument.

[00:08:10] Speaker 01:
No, Your Honor.

[00:08:10] Speaker 01:
What we're asking the court to do is to

[00:08:13] Speaker 01:
put aside plaintiff's allegation in the complaint because the complaint is not verified and therefore is not competent evidence on summary judgment and to look at what other evidence supports his allegation and the only other evidence that the plaintiff pointed to was his deposition testimony and what his deposition testimony demonstrates is that he

[00:08:33] Speaker 01:
at best said that he did not recall something happening but he stated that his memory was fuzzy and then he blacked out just before the takedown and therefore look at the other evidence in the record regarding what happened and we have the video evidence we have the testimony of a third-party witness namely the paramedic who stated that he observed the interaction with both officers observed plaintiff

[00:09:02] Speaker 01:
getting in the way of Officer Horton being told to back away, not backing away, and then observed that the plaintiff did the same thing to Officer Luby, tried to make contact with him, was ordered to back away, and did not back away.

[00:09:19] Speaker 01:
And that's pushing on Officer Luby, and that led to the takedown

[00:09:27] Speaker 01:
That's what we're asking.

[00:09:28] Speaker 04:
Do you need the pushing to have for him, for Luby to have acted reasonably?

[00:09:34] Speaker 04:
Because as I see it, you know, he, Mr. Navarro, went to the first officer, pushed him, was ordered to move away, and it seems uncontested to me that he then went into Luby's personal space and was immediately behind him, which, you know, is a dangerous position to be in.

[00:09:52] Speaker 04:
And so if Luby responded the way he did, it doesn't matter whether or not he pushed him or not.

[00:09:59] Speaker 01:
No, Your Honor, I agree.

[00:10:00] Speaker 01:
I agree.

[00:10:00] Speaker 01:
I think that there's enough evidence with that.

[00:10:02] Speaker 01:
I think that you don't have to weigh in on this dispute of whether or not there was a pushing or not.

[00:10:06] Speaker 01:
Correct.

[00:10:07] Speaker 01:
Correct.

[00:10:07] Speaker 01:
I think that there's enough evidence for this court to find that there was sufficient reason for Officer Luby to do the take down and detain Officer, pardon, Mr. Navarro, because he was being unruly, because he was interfering with Officer Horton, and because he refused multiple orders to back away.

[00:10:30] Speaker 01:
I also wanted to address, and Judge Murguia, you alluded to this, I think.

[00:10:36] Speaker 01:
the separate claim the plaintiff has in terms of the way he was escorted after he was taken down.

[00:10:43] Speaker 01:
As the video demonstrates, after he was taken down, Mr. Navarro was sat down by the police to await for an escort van.

[00:10:50] Speaker 01:
And during this particular instance, he was berating the officers.

[00:10:55] Speaker 01:
He engaged in this diatribe, and he was questioning the officers.

[00:10:58] Speaker 01:
The officers tried to answer his questions, and they were asking him questions that were necessary for them to fill out the arrest forms.

[00:11:06] Speaker 01:
After the transport van arrived, Mr. Navarro was then escorted by Officer Luby towards the van.

[00:11:13] Speaker 01:
The escort took place about a total of 50 seconds.

[00:11:17] Speaker 01:
Because of Mr. Navarro's belligerent behavior, because of his intoxicated state, Officer Luby determined that it was necessary to escort him in a particular way to avoid him potentially spitting at the officers or somehow

[00:11:32] Speaker 01:
engaging in other unruly behavior.

[00:11:33] Speaker 04:
That's a tough one, though, because he was being unruly to the officer, and so it could have been the safety purpose, or it could be retaliation.

[00:11:42] Speaker 01:
Yes, Your Honor, but this gets to the question of what's required to demonstrate a retaliation claim.

[00:11:48] Speaker 01:
Under Jeffers v. Gomez and Bruce V. Ilst, the mere timing of an event... I don't understand why not.

[00:11:55] Speaker 04:
But the proximity, it makes total sense of his evidence.

[00:12:01] Speaker 04:
He engaged in quote unquote protected speech, you know, on a ledge, and then all of a sudden, seconds later, the officer uses an odd technique to transport him.

[00:12:11] Speaker 01:
Your Honor, the case law holds that mere timing is not sufficient.

[00:12:15] Speaker 01:
Proximity of events can sometimes be sufficient if there's additional evidence that is seduced.

[00:12:21] Speaker 04:
In this case... Why can't a jury say that that's enough?

[00:12:23] Speaker 04:
That's what I don't understand.

[00:12:25] Speaker 01:
Because as the Supreme Court has held in a slightly different context in the Nieves versus Bartlett case, that the fact that officers sometimes use the speech of an individual to calibrate a particular law enforcement action, such as deciding to arrest someone, that that is not improper.

[00:12:45] Speaker 01:
That does not mean that there's a retaliation claim.

[00:12:48] Speaker 01:
There has to be more.

[00:12:49] Speaker 01:
in order to establish.

[00:12:50] Speaker 04:
Well that seems like a qualified immunity question, the clearly established law question.

[00:12:54] Speaker 04:
How do you get out of clearly established law?

[00:12:59] Speaker 01:
The fact that what the district court relied on and what plaintiff pointed to in terms of the retaliation claim is case law that holds that retaliating someone for their speech is a violation, but that assumes that

[00:13:13] Speaker 01:
Oscar Luby acted as a result of the speech in order to retaliate.

[00:13:17] Speaker 01:
Which is what we do.

[00:13:22] Speaker 01:
Assuming that there's sufficient evidence on all the elements, and we go back to the case law that says that the mere timing itself is not sufficient evidence.

[00:13:31] Speaker 04:
Okay, but assuming that I don't believe you on that one, how do you get out of qualified immunity?

[00:13:35] Speaker 01:
Then we'd go to the fact that there's cases that hold that the law enforcement can utilize this speech in order to calibrate the particular law enforcement actions, and that that case law would have demonstrated to an officer

[00:13:49] Speaker 01:
an individual in Officer Luby's position that it was not improper under all circumstances to utilize the speech when necessary to assess whether there was a particular law enforcement necessary, such as an arrest or such as a particular use of force.

[00:14:04] Speaker 01:
I see that I'm almost out of time, so I'd like to reserve the rest of my time.

[00:14:07] Speaker 00:
Okay, thank you.

[00:14:08] Speaker 01:
Thank you.

[00:14:18] Speaker 03:
Good morning.

[00:14:19] Speaker 03:
I think I argued in front of Judge Ellen, Judge Blumenthal on Monday, and I liked it so much that I decided that I wanted to come again.

[00:14:29] Speaker 03:
Welcome back.

[00:14:30] Speaker 03:
I get your presence as well, Your Honor, so I'm happy.

[00:14:32] Speaker 03:
My name is Pat Bloma.

[00:14:34] Speaker 03:
I represent the appellees in this case.

[00:14:37] Speaker 03:
And may it please the court, this case is troublesome just on a procedural level.

[00:14:44] Speaker 03:
As you heard counsel, he's re-arguing facts

[00:14:47] Speaker 03:
disputes that the district court found in plaintiff's favor already.

[00:14:52] Speaker 03:
And I want to know and be clear about something.

[00:14:55] Speaker 03:
He was arguing that the plaintiff didn't remember the encounter, but that's imprecise description of the deposition testimony.

[00:15:02] Speaker 03:
The plaintiff testified a deposition that he remembered walking past the officer, walking away after being told to get back.

[00:15:10] Speaker 03:
And then as he was walking, he got grabbed and thrown on the ground, hit his head, and that's when he blacked out.

[00:15:15] Speaker 03:
And I can quote the deposition testimony.

[00:15:17] Speaker 03:
It says, question, and then at the time of your interaction with Officer Horn, did you notice any other officers in the immediate proximity?

[00:15:26] Speaker 03:
Answer, not until I turned around, and then I saw Officer Luby, and then all of a sudden, and that's what I was sharing with you,

[00:15:33] Speaker 03:
I kind of blacked out because that's when I was just slammed to the ground.

[00:15:36] Speaker 03:
I saw Officer Luby just for a quick second, I turned, saw Officer Luby really quick, his face, then all of a sudden I'm on the ground and there's all these police officers on me.

[00:15:46] Speaker 03:
It happened just like this.

[00:15:48] Speaker 03:
Question, okay, can you walk me through please once the first moment that you noticed Officer Luby, what happened?

[00:15:56] Speaker 03:
Answer.

[00:15:56] Speaker 03:
I turned around, I see Officer Louie, then all of a sudden I'm getting thrown around and then thrown to the ground.

[00:16:02] Speaker 03:
That's what I'm saying.

[00:16:03] Speaker 03:
I not blacked out, but my memory was fuzzy because of that.

[00:16:06] Speaker 03:
I was just so in shock.

[00:16:07] Speaker 04:
So, counsel, it's undisputed that he touched Officer Horton, correct?

[00:16:15] Speaker 04:
Yeah, and that Hornton told him to get away.

[00:16:17] Speaker 03:
And that he did?

[00:16:18] Speaker 04:
Yeah.

[00:16:19] Speaker 04:
And then is it, it's undisputed then that he then walked towards, um, um, Tooby, uh, Looby, correct?

[00:16:27] Speaker 04:
Past.

[00:16:29] Speaker 04:
And he came up behind him, right?

[00:16:30] Speaker 03:
Well, so Looby's, that's, that's like saying that I walk behind an officer that's walking past me.

[00:16:36] Speaker 03:
So Officer Looby is walking in the same direction Officer Hornton as Officer Hornton,

[00:16:42] Speaker 03:
it early biggest walking past and he goes behind him because that's what i thought so it's undisputed he's right behind officer lee

[00:16:49] Speaker 03:
Correct, yes.

[00:16:50] Speaker 03:
Well, they're side to side, so if you actually look at the video, and this was interesting, I noticed in the reply brief they said, oh, there must have been a touching because plaintiff's right hand went up.

[00:17:00] Speaker 03:
Well, they're actually, his left shoulder is to where Officer Luby's passing, his right arm, which allegedly could have touched him, is clearly visible on the video, not touching him.

[00:17:11] Speaker 03:
So walking past an officer is not sufficient to justify force.

[00:17:18] Speaker 04:
Well, you know, he was in his personal space behind him, which is a dangerous position to be.

[00:17:24] Speaker 03:
If I walk past the federal officer today, behind him, even if I say, I don't like... After you assault another officer... No, not assault, because we remember it was... Well, touching, touching is an assault.

[00:17:33] Speaker 03:
It was unwelcome a touch.

[00:17:34] Speaker 03:
Sure, if I touch one of the security officers, he says, hey, I don't want to shake your hand.

[00:17:37] Speaker 04:
Yes, and then he tells you to go away, and then you go to another security officer and go right behind him.

[00:17:42] Speaker 03:
Yeah, then he can grab me by the head.

[00:17:44] Speaker 03:
lift me up, choke slam me on the ground without saying anything to me, and then arrest me and pull me up by my handcuffs.

[00:17:52] Speaker 03:
That, you believe, is sufficient to justify that sort of force?

[00:17:57] Speaker 03:
That, to me, that is... Why is that wrong?

[00:18:00] Speaker 03:
That is a definition of a police state.

[00:18:02] Speaker 03:
That goes against Graham v. Connor.

[00:18:04] Speaker 03:
Why?

[00:18:05] Speaker 03:
That goes against every shred of case law about the Constitution.

[00:18:09] Speaker 03:
Because there's no warning.

[00:18:11] Speaker 04:
He's complying with an... That'll happen within like a second.

[00:18:14] Speaker 03:
He complied with the officer.

[00:18:15] Speaker 03:
He said, get away from me.

[00:18:17] Speaker 03:
So he turns around and walks back to the sidewalk.

[00:18:19] Speaker 03:
And as he's passing by an officer, because he walks behind him, then that's sufficient for an officer to turn around, grab him, and choke him to the ground.

[00:18:27] Speaker 03:
I don't think a single officer in the streets would say that they think that that is reasonable force, except for this officer who's getting sued.

[00:18:36] Speaker 03:
I mean, it's just, it's asinine.

[00:18:39] Speaker 03:
And I think the case law is clear on that.

[00:18:42] Speaker 03:
There's no need for use of force.

[00:18:44] Speaker 03:
And there's no warning.

[00:18:45] Speaker 03:
Why not say, hey?

[00:18:46] Speaker 03:
Because he thought he was in danger.

[00:18:47] Speaker 04:
He sees the officer, Navarro assaults another officer.

[00:18:54] Speaker 04:
He does move away eventually after he's being pushed away, essentially.

[00:19:00] Speaker 04:
And then Navarro comes up right behind him.

[00:19:02] Speaker 04:
That's a dangerous position to be in.

[00:19:04] Speaker 03:
What's the assault?

[00:19:06] Speaker 04:
I'm sorry?

[00:19:06] Speaker 03:
What was the assault?

[00:19:07] Speaker 04:
The Horton?

[00:19:08] Speaker 04:
Assault was unwanted touching, right?

[00:19:12] Speaker 03:
Okay, so what did the plaintiff do that you consider an assault?

[00:19:15] Speaker 04:
He touched Horton.

[00:19:17] Speaker 04:
You can't go around touching officers.

[00:19:18] Speaker 03:
Okay, with his hand, with a gun, with a baton, what did he touch him with?

[00:19:22] Speaker 03:
hands.

[00:19:23] Speaker 03:
He tried to shake his hand, right?

[00:19:25] Speaker 03:
That was what Officer Horton testified to.

[00:19:27] Speaker 03:
He was trying to shake his hand and he didn't want to shake his hand, so he pushed him away.

[00:19:32] Speaker 04:
So if I walk up to an officer and try to shake his hand... Is that a definition of assault though?

[00:19:36] Speaker 03:
Well, let's just look at what Officer Horton's reaction was.

[00:19:39] Speaker 04:
Well, just answer that question, is it?

[00:19:41] Speaker 03:
That is what assault is, but I think it's misleading to say

[00:19:44] Speaker 02:
Assault and then that can mean many different things it could mean I think assault has to be when you know The person doesn't want to be touched if I go up to give someone a high five And then hey, you didn't make a good play.

[00:19:54] Speaker 02:
You don't deserve a high five.

[00:19:56] Speaker 02:
That's not an assault It has to be you have to know the person is not wanting to touching

[00:19:59] Speaker 03:
Absolutely and it's also worth the Warriors parade.

[00:20:02] Speaker 03:
He's running up He's just saying what many people are doing running up high-fiving shaking each other's hands That's what he testified he was doing officer Horan who's the alleged person victim his reaction was shoot him away and walked on Why would that suggest why wouldn't officer who was assaulted?

[00:20:18] Speaker 03:
then turn his back to the assaultee.

[00:20:20] Speaker 03:
But that's such a little threat.

[00:20:23] Speaker 03:
He doesn't, he shoes him away.

[00:20:25] Speaker 03:
But for this next officer, that's such a dangerous threat that if he walks even close to me, I'm just going to, why not say something to him?

[00:20:33] Speaker 03:
Hey, don't walk next to me.

[00:20:34] Speaker 03:
Hey, don't walk close to me.

[00:20:36] Speaker 00:
It seems like this discussion here is highlighting the need to weigh the facts.

[00:20:47] Speaker 03:
Absolutely, Your Honor.

[00:20:49] Speaker 03:
And the whole point is a lot of this is not procedurally correct, and this court doesn't have its jurisdiction.

[00:20:54] Speaker 03:
If we're reweighing facts, the court has no jurisdiction.

[00:20:58] Speaker 03:
Even the counsel brought up the post-arrest force.

[00:21:00] Speaker 03:
They didn't even appeal that in their opening brief.

[00:21:03] Speaker 03:
How can we even discuss that?

[00:21:06] Speaker 03:
If you don't put something in your opening brief, it's not on appeal.

[00:21:09] Speaker 00:
And so if we can, let's go to clearly established law.

[00:21:15] Speaker 03:
OK, clearly established law.

[00:21:18] Speaker 03:
It's hard to start with where.

[00:21:20] Speaker 03:
Durand v. City of Douglas says you can't attack someone for being, for using obscene language.

[00:21:27] Speaker 03:
Any number of cases.

[00:21:31] Speaker 04:
That's for the retaliation claim, right?

[00:21:34] Speaker 03:
Yeah.

[00:21:34] Speaker 03:
Do you want, all right, so let's.

[00:21:36] Speaker 04:
No, I am curious about if, unless you wanted to go the assault.

[00:21:39] Speaker 00:
Well, I just wanted to see what your best case was for the, I guess what we're calling the assault and then also for retaliation.

[00:21:47] Speaker 03:
Sure, we have Mina versus Massey, which is a case from the Ninth Circuit where a woman was trying to get out her identification for an officer and then she wouldn't get it out in time.

[00:22:02] Speaker 03:
The officer grabbed the plaintiff and jerked her around and threw her on the ground, and the plaintiff's passive resistance of not complying quick enough with the officer's orders was held to be clearly established as excessive force.

[00:22:15] Speaker 03:
So that would be Mina versus Massey.

[00:22:19] Speaker 03:
Meredith versus Erath, where an officer was trying to get into a building, and for

[00:22:30] Speaker 03:
And the officer was trying to get in the building.

[00:22:32] Speaker 03:
They have a warrant.

[00:22:33] Speaker 03:
The person demands and won't let the officer in because they want to see the warrant.

[00:22:37] Speaker 03:
So the officer grabs her and throws her to the ground, excessive force.

[00:22:41] Speaker 03:
And these are much less used as a force and less intrusive than the force that we see here.

[00:22:46] Speaker 03:
And the injuries are less.

[00:22:48] Speaker 04:
Can I ask you about the retaliation?

[00:22:51] Speaker 04:
Because I do think you've proven, you've applied a violation on step one.

[00:22:57] Speaker 04:
My question is on step two, on clearly established.

[00:23:01] Speaker 04:
And I think you said Duran is what cites that.

[00:23:05] Speaker 04:
But I think the one difference though in Duran is that they said that there was no evidence of danger to public safety nor any evidence.

[00:23:11] Speaker 04:
He had or was about to be engaged in criminal activity.

[00:23:15] Speaker 04:
We're here that seems less clear because he was pretty disruptive While he was sitting on the you know on the ground you know he's handcuffed So he couldn't do much damage, but he wasn't compliant so there could be danger to the officers or to the public and

[00:23:33] Speaker 03:
Well, let's just say that any, and this is from Durant, any action to punish or deter speech such as stopping or hassling the speaker is categorically prohibited by the Constitution.

[00:23:44] Speaker 04:
Yes, but in the context where there's no evidence of danger to public safety.

[00:23:47] Speaker 03:
Well, even in the, even in the Durant case, there, he was in close proximity with someone that had just flipped him off and cussed him out.

[00:23:55] Speaker 03:
So you, you could argue that that was,

[00:23:58] Speaker 04:
Obscene and the court draws this line that I guess my question is What's wrong with the argument that there was that he's because he was not compliant?

[00:24:08] Speaker 03:
There were as if there was a danger to public safety well Witter out versus Blair Ninth Circuit case out of 2007 from in Alaska where he stopped and he's being belligerent has a belligerent attitude and

[00:24:20] Speaker 03:
He's not doing what the officer tells him to do, and calls the officer a coward, and the officer thinks he's going to hurt him or something, and then he uses extra force against him, excessive force against him.

[00:24:33] Speaker 03:
In that case, the court said, because of... Was that in public or was that in the police station?

[00:24:36] Speaker 03:
That was in public.

[00:24:37] Speaker 03:
That was outside of his, I think outside of his car.

[00:24:39] Speaker 03:
Yeah, it's a traffic violation.

[00:24:41] Speaker 03:
So right outside of his car, in close proximity to what potential weapons?

[00:24:44] Speaker 03:
But let's just back that up here.

[00:24:46] Speaker 03:
There's a factual, material fact dispute about

[00:24:49] Speaker 03:
whether or not the officer even had objective evidence that he was a danger.

[00:24:53] Speaker 03:
He sat the guy down in handcuffs next to him and he didn't pat them.

[00:25:00] Speaker 03:
No one patted him down.

[00:25:01] Speaker 03:
They could have at any moment.

[00:25:02] Speaker 03:
And if he had any, if he was so unruly and belligerent, why did he let two paramedics

[00:25:08] Speaker 03:
bend down within an inch of the guy's face, evaluate him for a minute if he thought, oh, this guy's a real dangerous guy that's going to suddenly attack me in handcuffs.

[00:25:18] Speaker 03:
A jury could say, absolutely.

[00:25:19] Speaker 03:
An officer who thought that this guy was dangerous and unruly and his speech was so bad, because he had already been cussing,

[00:25:28] Speaker 03:
that he was a danger or a threat, he would never let two paramedics unarmed and untrained within close proximity to him.

[00:25:36] Speaker 03:
So that's a factual dispute.

[00:25:41] Speaker 03:
And I can proceed, or if your honor, if either of you guys, or if anyone has any questions?

[00:25:50] Speaker 03:
No?

[00:25:51] Speaker 03:
Well, then I will rest at that.

[00:25:52] Speaker 00:
Thank you.

[00:26:02] Speaker 01:
I just wanted to address a few points.

[00:26:05] Speaker 01:
I think it's key, again, to look at the deposition testimony.

[00:26:08] Speaker 01:
Mr. Navarro testified that his memory was fuzzy.

[00:26:11] Speaker 01:
That's at episode record 279.

[00:26:13] Speaker 01:
No, that's at episode record, excuse me, 282.

[00:26:19] Speaker 01:
And he talked about blacking out just before the incident at 279.

[00:26:22] Speaker 01:
In terms of the clearly established aspect of it,

[00:26:28] Speaker 01:
The cases that Mr. Buona referred to are generally classified as what's called the passive resistance line of cases.

[00:26:35] Speaker 01:
And it's very clear in this case, as even the district court recognized, this wasn't a passive resistant case.

[00:26:41] Speaker 01:
This was a case where the individual who initiated the interaction was Mr. Navarro.

[00:26:48] Speaker 01:
He came up to the police out of the blue for no apparent reason.

[00:26:51] Speaker 01:
Now, he has his own version of why he did it, but for purposes of

[00:26:56] Speaker 01:
excessive force cases, you look at the perspective of a reasonable officer at the scene.

[00:27:01] Speaker 04:
Can I ask you about when he was handcuffed?

[00:27:03] Speaker 04:
Is the argument that he presented some danger when he was handcuffed?

[00:27:09] Speaker 01:
The argument, Your Honor, in terms of the retaliation... Yes.

[00:27:14] Speaker 01:
The concern was that because he had to be escorted to the van and he had demonstrated, one, that he had come up to the police out of the blue, the fact that he hadn't backed away and the fact that he had been belligerent during the interaction with the officer when the officer was trying to get his personal information to write out a ticket, that there was a concern

[00:27:33] Speaker 01:
by the officer that he and because Mr. Navarro was bloody there was concern that he might spit at officers or he might cause other disturbance and that was the concern that

[00:27:43] Speaker 01:
Animated at the okay, so that's why his head would be down Correct because that was the only method to prevent it because the concern was Because if he had been walked and this is in a regular upright manner exactly that he could have Spitted the officers he could have done other aggressive.

[00:28:03] Speaker 01:
He could have run out into the the area of the raucous event and

[00:28:08] Speaker 01:
And that is borne out as, besides Officer Luby's testimony, a use of force expert, Mr. Martin, talked about how this is an acceptable escorting technique in certain contexts.

[00:28:21] Speaker 01:
It appears to, it has a minimal risk of injury.

[00:28:25] Speaker 01:
It does appear uncomfortable, but the concern is to avoid any potential spitting at individuals and that sort of thing, and it was eliminated.

[00:28:35] Speaker 01:
by Mr. Navarro's behavior leading up to it.

[00:28:40] Speaker 01:
I see that I'm out of time.

[00:28:41] Speaker 01:
The law was not clearly established at a minimum, both in terms of the passive resistance slice of cases and how that applies to an individual who interferes with the police, and in terms of the retaliation aspect of it, there is an evidence that the handcuffing method was animated by the speech other than mere timing.

[00:29:00] Speaker 01:
and also on the Nieves versus Bartlett under this coach decision in Boquist as well.

[00:29:07] Speaker 01:
The law enforcement was not on notice that calibrating a handcuffing method

[00:29:15] Speaker 01:
in light of the speech and the belligerent behavior was improper.

[00:29:19] Speaker 01:
And with that, I'll submit.

[00:29:21] Speaker 01:
Thank you.

[00:29:21] Speaker 00:
Thank you.

[00:29:22] Speaker 00:
Thank you.

[00:29:24] Speaker 00:
Thank you both.

[00:29:25] Speaker 00:
Mr. Zeldon Cepeda, thank you.

[00:29:29] Speaker 00:
Mr. Buena, appreciate your oral argument and demonstration here today.

[00:29:35] Speaker 00:
The case of Anthony Navarro versus City and County of San Francisco is submitted.

[00:29:40] Speaker 00:
The last case on our document is Christopher Cowan.

[00:29:44] Speaker 00:
Kowarowski versus Jen Digital and that has been submitted on the briefs.

[00:29:52] Speaker 00:
And so therefore that concludes our docket for today and we are adjourned.

[00:29:57] Speaker 00:
Thank you very much.