[00:00:01] Speaker 03:
And the next case we have is Vanessa Velasco Ortega versus County of Okanagan.

[00:00:09] Speaker 03:
Sorry, Isaiah Holloway and County of Okanagan.

[00:00:12] Speaker 03:
I hope I'm not mispronouncing the county's name.

[00:00:18] Speaker 03:
Okanagan, I apologize.

[00:00:21] Speaker 03:
See you are.

[00:00:32] Speaker 00:
Morning, Your Honors.

[00:00:33] Speaker 00:
My name is Amanda Keen and I represent the appellant, Isaiah Holloway.

[00:00:37] Speaker 00:
I'd like to reserve five minutes for rebuttal, if I may.

[00:00:40] Speaker 00:
the issue before this court is whether the district court aired when it dismissed defendant appellant holloway's motion for summary or when it denied defendant holloway's motion for summary judgment to dismiss plaintiff appellant's fourteenth amendment equal protection claim finding quality immunity did not shield holloway from liability on that claim as this court is no doubt aware in order to establish qualified immunity the court must find the state actor's conduct clearly violated

[00:01:06] Speaker 00:
and a statutory or constitutional right of the appellee.

[00:01:11] Speaker 00:
And under this standard, the district court's denial of qualified immunity was error for two reasons.

[00:01:17] Speaker 00:
First, the appellee failed to present evidence of a constitutional violation insofar as she failed to prove that Isaiah Holloway was acting as a state actor at the time of the incidents alleged to be unconstitutional.

[00:01:28] Speaker 00:
and any alleged constitutional deprivation was not clearly established because neither Holloway nor any reasonable officer knowing what Holloway knew at the time would have considered the sexual interactions with appellee to be the sexual harassment in violation of the equal protection.

[00:01:44] Speaker 00:
As the court's probably aware, we can jump to either one of those prongs with the court's indulgence.

[00:01:49] Speaker 00:
I'd like to jump straight into prong two, which is the knowledge that the constitutional deprivation was clearly established.

[00:01:56] Speaker 00:
The district court solely relied on the September 9th, 2020 decision of Sampson.

[00:02:01] Speaker 00:
This reliance was error as the alleged constitutional deprivations occurred in late 2019 and early 2020 There is one allegation to be fair to the record that there is a factual dispute here because she says

[00:02:18] Speaker 04:
late in 2020, correct?

[00:02:20] Speaker 00:
I believe the record is fall of 2020.

[00:02:23] Speaker 00:
She alleged that there was one final, well, let me be clear.

[00:02:27] Speaker 00:
The sexual interactions between the two, four of the five occurred according to her late 2019, early 2020.

[00:02:36] Speaker 00:
She does allege there is a final sexual interaction in fall of 2020.

[00:02:42] Speaker 00:
However, that sexual interaction, according to her own testimony, was

[00:02:46] Speaker 00:
in Wenatchee, which is two hours south.

[00:02:48] Speaker 00:
It was not when Officer Holloway was in his patrol car, in his uniform.

[00:02:53] Speaker 00:
It was behind a Costco.

[00:02:55] Speaker 00:
There's really nothing to give rise to the idea that he was acting as a state actor at the time of that fall of 2020 sexual interaction.

[00:03:03] Speaker 03:
What about the text messages that occurred allegedly in December of 2020 and early of January 2021?

[00:03:13] Speaker 03:
And I raise that because obviously there were allegations of sexual contact, but why wouldn't the sexual nature of the text messages also potentially fall within the auspices of Samson as a sexual harassment claim?

[00:03:30] Speaker 00:
Yes, your honor.

[00:03:32] Speaker 00:
Two points there.

[00:03:33] Speaker 00:
One, this is a rule 56 motion or it was below.

[00:03:36] Speaker 00:
It was not a rule 12 motion.

[00:03:38] Speaker 00:
So the court needs to be looking at the evidence, not the allegations in the complaint.

[00:03:42] Speaker 03:
and evidence implies that the evidence should be admissible and here we're on interlocutory review so we're not here to weigh evidence and if there's a little bit of a gray area around this but i think we may not even have jurisdiction to review

[00:04:02] Speaker 03:
Matters that they just you know as to going to the weight of the evidence so it wouldn't I mean don't we have to take Plaintiffs allegations as true and then determine in the light of that under qualified immunity whether there's clearly established law

[00:04:17] Speaker 00:
Well, here's what the plaintiff can allege.

[00:04:18] Speaker 00:
The plaintiff can allege that she sent, it may be a distinction without a difference, but they're Facebook messages, not text messages.

[00:04:25] Speaker 00:
Facebook messages carry with them a different layer of authentication that may be problematic here, especially in light of the fact that the Facebook messages are sent not from Isaiah Holloway, but from a different Facebook account under the name of Jacob Jones.

[00:04:38] Speaker 00:
and then some of the Facebook messages are sent by an unknown user that even plaintiff's forensic computer person couldn't determine who they had actually come from so in terms of authentication there's really nothing to show that they come from my client but even if this court is to take plaintiff at her word and say that the Facebook messages did come from the client if you look into the nature of the Facebook messages there's really nothing in the incoming messages that could be construed as sexually harassing

[00:05:05] Speaker 00:
I would venture to say actually quite the opposite is true.

[00:05:08] Speaker 00:
The Facebook messages from Ms.

[00:05:10] Speaker 00:
Ortega, at least in my determination.

[00:05:14] Speaker 04:
I think you have a very cogent explanation of everything and that may be the end result.

[00:05:21] Speaker 04:
But there's two issues it seems to me with the qualified immunity appeal.

[00:05:27] Speaker 04:
The first is that we can't weigh the evidence on color of state law under Johnson.

[00:05:32] Speaker 04:
So that seems to me

[00:05:35] Speaker 04:
For better or for worse that's out and eventually the district court will sort that out.

[00:05:41] Speaker 04:
So then you get to the question of well just pure qualified immunity and now you're pointing up shades of interpretation and of course we do know that sexual harassment does violate equal protection because it's assumed to be gender based.

[00:05:57] Speaker 04:
So that's the constitutional violation.

[00:05:59] Speaker 04:
It seems to me the question here is in the face of this record,

[00:06:05] Speaker 04:
could we say that there's qualified immunity?

[00:06:09] Speaker 04:
And that's where I'm having some trouble in thinking, well, it's the classic in this particular case, in light of the allegations, it's got to go back for fact-finding and a trial.

[00:06:21] Speaker 00:
But the question would be, when was the constitutional violation clearly established under the 14th Amendment equal protection claim?

[00:06:28] Speaker 00:
Because a number of the claims that are akin to the fact pattern here were decided under the Fourth Amendment seizure.

[00:06:35] Speaker 00:
It wasn't until Sampson in September of 2020 that this court expanded the equal protection analysis outside the context of a school or a employment environment.

[00:06:47] Speaker 00:
And in that case, even Samson only extended it to social services.

[00:06:51] Speaker 00:
I've yet to find a case that really extends equal protection claims to law enforcement services, especially during the time period at issue here, which would be late 2019, even through 2020, if we want to include the time in which the Facebook messages were exchanged.

[00:07:09] Speaker 04:
Well, we have the general principle about

[00:07:13] Speaker 04:
sexual harassment being gender-based violence.

[00:07:16] Speaker 04:
So that's a constitutional claim.

[00:07:18] Speaker 04:
I don't think we have to have it applied to a specific category of individuals.

[00:07:24] Speaker 04:
So I take your point on Samson.

[00:07:27] Speaker 04:
It's kind of unclear.

[00:07:29] Speaker 04:
I mean, Samson's 2020.

[00:07:30] Speaker 04:
We have some allegations as you point fall and maybe 2021.

[00:07:36] Speaker 04:
So I don't know that Samson

[00:07:40] Speaker 04:
you know, is any kind of slam dunk for Ortega here because of the timing.

[00:07:47] Speaker 04:
But we do have that other principle.

[00:07:49] Speaker 04:
And so it seems to me that it boils down to a factual dispute because we've got a timing issue and we have a substance issue.

[00:08:00] Speaker 04:
Substance meaning the content and you point out some of the difficulties with the content.

[00:08:05] Speaker 04:
But doesn't that just underscore

[00:08:09] Speaker 04:
the whole factual nature that would require a remand.

[00:08:14] Speaker 00:
I think when you carve the facts down to what this court, and we're not asking the court to reweigh facts.

[00:08:21] Speaker 00:
I guess we're asking the court to perhaps take different inferences from the facts that the district court record establishes.

[00:08:27] Speaker 00:
But when you look at the facts, our position would be pretty much anything before September 9th of 2020 that's alleged in this claim would not give defendant Holloway notice of the constitutional violation in light of the language in Samson.

[00:08:41] Speaker 00:
So then we're just looking at what happened after Samson, and we're looking at the one sexual interaction that occurred off work, out of uniform.

[00:08:50] Speaker 00:
Ms.

[00:08:50] Speaker 00:
Ortega herself had to drive two and a half hours south to meet Mr. Holloway behind the Costco.

[00:08:55] Speaker 00:
And I guess I should just say for the record, my client denies all of this, but I understand you have to take these facts.

[00:09:00] Speaker 00:
We totally understand.

[00:09:01] Speaker 00:
Okay, all right.

[00:09:03] Speaker 00:
That interaction, I think, under the rest of the case law, and perhaps going back to Prong Huan, which was this actor acting under color of state law, there's really nothing in the case law, especially the cases like Dang Vang, Ricky R. Those cases are much more flagrant than someone meeting behind a Costco in their off time.

[00:09:23] Speaker 02:
In addition to- How about the encounters before September?

[00:09:28] Speaker 00:
But for the encounters before September 9th of 2020, the encounters before Sampson, we would argue under the second prong that there was no clearly established right under the Equal Protection Act under the 14th Amendment, which is the only claim.

[00:09:42] Speaker 02:
But we don't, you know, the Supreme Court says that you don't need an identical case.

[00:09:51] Speaker 02:
You don't need a twin, so to speak.

[00:09:59] Speaker 02:
What reasonable officer wouldn't understand that it's unlawful to engage in this kind of conduct?

[00:10:13] Speaker 00:
Understood.

[00:10:14] Speaker 00:
What I think the officer did not understand was that he would be acting under color of state law.

[00:10:20] Speaker 00:
That's what I think the officer would not understand.

[00:10:21] Speaker 00:
That's a different issue.

[00:10:25] Speaker 04:
In other words, it might be a constitutional violation if I were acting under color of state law, but I don't think I am.

[00:10:33] Speaker 04:
But that is a question that's got to go back to be determined, so.

[00:10:37] Speaker 00:
Well, then let's look at Boyd versus Benton County, a case that I think this court's familiar with.

[00:10:42] Speaker 00:
In that case, that was an excess use of force case, but that case addressed whether the use of flashbangs could be, whether an officer would be entitled to qualified immunity for the use of flashbangs when there was no case on point that said flashbangs were an excessive use of force.

[00:10:57] Speaker 00:
But there was a case on point that said the use of firearms was an excessive use of force.

[00:11:01] Speaker 00:
Even in that case, the court said, you can't just rely on the fact that there's new technology to shield you from qualified immunity.

[00:11:08] Speaker 00:
However, that court said, we're looking at the other cases around the nation, and the other cases around the nation are saying this is actually a reasonable use of force.

[00:11:17] Speaker 00:
It just can't be defined as too high of a threat.

[00:11:20] Speaker 04:
We don't really need a lot of technology on this one, right?

[00:11:24] Speaker 03:
What about Fontana?

[00:11:26] Speaker 03:
I mean, I know much of the analysis turned on the fact that it was a Fourth Amendment claim because it was in the context of an arrest.

[00:11:37] Speaker 03:
But there was quite a bit of discussion in Fontana and in footnotes about how normally police-related interactions involve sexual harassment or something worse is analyzed under the 14th Amendment.

[00:11:52] Speaker 03:
And the court discusses out-of-circuit authorities to that.

[00:11:56] Speaker 03:
So could that supply enough of a clear law in this context?

[00:12:02] Speaker 00:
I don't think so because I think this court addressed just that issue in Sampson.

[00:12:06] Speaker 00:
I mean, the court sort of resignedly said, we don't want to find... But that was a social worker sexual harassment.

[00:12:14] Speaker 03:
And so that's, you know, there, I don't know, there weren't really many cases related to

[00:12:20] Speaker 03:
that to a social worker interacting with a public facing in their public facing role.

[00:12:25] Speaker 03:
But there have been cases of officer misconduct in this circuit and other circuits, you know, where they've stepped out of bounds and in shock to conscience under a Fourth Amendment understanding.

[00:12:36] Speaker 03:
So why couldn't Fontana be something a little more clear for us to be guided by?

[00:12:44] Speaker 00:
And I think the fact that the court is using the term a little bit more clear is perhaps where the issue lies.

[00:12:50] Speaker 00:
Unfortunately, this court's been slapped on the wrist quite a bit from the United States Supreme Court at defining clearly established and too high a level of generality.

[00:12:58] Speaker 00:
So in this case, I think, again, I don't want to keep coming back to Samson, but I will.

[00:13:03] Speaker 00:
I think Samson is sort of the poster child for why and how this court wants to proceed on issues like this in the future.

[00:13:10] Speaker 00:
The court in Samson

[00:13:11] Speaker 04:
didn't want to it didn't seemingly want to permit qualified immunity but it did and then it said affirmatively going forward we're going to apply it in these in these certain instances but why wouldn't given the ambiguity of the facts and the inferences even if Samson were the only case why wouldn't that defeat qualified immunity

[00:13:31] Speaker 00:
I think it would defeat qualified immunity specifically for anything that happened before September 9th of 2020, and I think maybe my position would be anything after September 9th of 2020, which I don't think it's clear in the record whether the final sexual interaction occurred before or after September 9th, but the position would be

[00:13:51] Speaker 00:
going back to the first prong, whether or not that's clearly established as of Samson, going back into the first prong, none of the factual allegations there would give rise to a person acting under color of state law.

[00:14:03] Speaker 04:
Thank you.

[00:14:04] Speaker 00:
Thank you.

[00:14:12] Speaker 01:
Good morning.

[00:14:13] Speaker 01:
May it please the court?

[00:14:14] Speaker 01:
My name is Tyler Hotchkiss, and I represent the appellee and cross-appellant, Vanessa Velasco.

[00:14:20] Speaker 01:
Review in this matter is de novo, with all inferences to be drawn in the light most favorable to Miss Velasco.

[00:14:28] Speaker 01:
This case is about common sense and what it tells us about the actions of Mr. Holloway.

[00:14:34] Speaker 01:
In addition to common sense, Holloway was on clear notice via case law that his actions would violate the constitutional rights of Miss Velasco and other women that he preyed upon as a detective,

[00:14:50] Speaker 01:
and as a deputy of the Okanagan County Sheriff's Office.

[00:14:55] Speaker 01:
It's common sense that you as an officer cannot have sex with someone who is a suspect in a burglary you are investigating.

[00:15:02] Speaker 01:
It is common sense that you as an officer cannot have sex with someone who you found in possession of stolen property within weeks of having been in possession of that property.

[00:15:12] Speaker 01:
Of note, Ms.

[00:15:13] Speaker 01:
Velasco was never charged with a crime related to the burglary or related to the possession of stolen property.

[00:15:19] Speaker 01:
It is common sense that you as an officer cannot hold charges over someone's head and have a sexual relationship with them.

[00:15:27] Speaker 01:
Pursuant to Ms.

[00:15:28] Speaker 01:
Velasco's testimony, that is what happened in this case.

[00:15:32] Speaker 01:
It is common sense that you as an officer cannot have a sexual relationship with someone while on duty, in uniform, knowing their history of drug use and criminal involvement.

[00:15:44] Speaker 01:
Just weeks prior to

[00:15:48] Speaker 01:
the first sexual interaction between Miss Velasco and Detective Holloway.

[00:15:53] Speaker 01:
Detective Holloway found Miss Velasco at a known drug house with a meth bomb with drugs in it.

[00:15:59] Speaker 01:
Additionally,

[00:16:03] Speaker 01:
Deputy Holloway had arrested Ms.

[00:16:04] Speaker 01:
Velasco prior to this.

[00:16:06] Speaker 01:
Deputy Holloway had found or known about drug involvement in addition to the interaction at the drug house.

[00:16:16] Speaker 03:
And so... So, counsel, what do you think is the best clearly established law to support Ms.

[00:16:24] Speaker 03:
Velasco's claims?

[00:16:25] Speaker 01:
I think the court hit on really all of them, okay?

[00:16:28] Speaker 01:
I think Fontana is a great case.

[00:16:30] Speaker 01:
I think one of the problems with these cases, as the court might recognize, and as Hess recognizes, is that sometimes they're analyzed under the Fourth Amendment, sometimes they're analyzed under substantive due process, sometimes they're analyzed under equal protection.

[00:16:46] Speaker 01:
In my mind, those distinctions don't matter, and here's why, is because if the same act

[00:16:54] Speaker 01:
involve multiple constitutional right.

[00:16:56] Speaker 01:
Notice of the act itself being unconstitutional is enough to establish the violation of the constitutional right.

[00:17:03] Speaker 04:
And would you agree that with respect to the specifics of Samson that it would only constitute clearly established law post September of 2020?

[00:17:18] Speaker 01:
No, I don't think that Samson is a limiting factor here.

[00:17:21] Speaker 01:
In other words, I don't think that Samson starts the clock.

[00:17:25] Speaker 04:
That's really not my question.

[00:17:26] Speaker 04:
My question is with respect to invoking Samson as a source of established law.

[00:17:32] Speaker 04:
We can't look before September of 2020, can we?

[00:17:36] Speaker 01:
I'm not sure I completely understand your question, Your Honor, but if your question is whether there's any other case besides Sampson, then certainly there is.

[00:17:45] Speaker 01:
I think Sampson certainly adds to it, right?

[00:17:49] Speaker 04:
But I think if you're looking at— Leaving aside Sampson, you're saying Fontana.

[00:17:54] Speaker 04:
What else?

[00:17:55] Speaker 01:
West v. Atkins is a Supreme Court case.

[00:17:57] Speaker 01:
It's a case involving

[00:17:59] Speaker 01:
the eighth amendment, but it does involve equal protection as well as sexual conduct related thereto, and I think that establishes that that's one of the cases that the eighth circuit looked to in

[00:18:16] Speaker 01:
And Johnson v. Martin, when it established that an abuse of authority over non-employees on the basis of sex was clearly established in 1999, is what they said, right?

[00:18:31] Speaker 01:
And so, Your Honor, I think West, along with Johnson v. Martin, I think Dang Vang is another case where

[00:18:38] Speaker 01:
This idea of what is it equal protection or is it substantive due process?

[00:18:43] Speaker 01:
I also think that's one of the reasons your honor that this court Should invoke pendant jurisdiction in this case right is because these these two items are intertwined because you know back to my original point was just as a hypothetical your honor if you have a

[00:19:02] Speaker 01:
a unreasonable search and seizure, let's say.

[00:19:05] Speaker 01:
Let's say a strip search in the middle of a public road, right?

[00:19:11] Speaker 01:
But that strip search is

[00:19:16] Speaker 01:
is based upon on sexual motives, you have two violations at that same time, right?

[00:19:21] Speaker 01:
You have a violation of the Equal Protection Clause, in my mind, because they're disparate treatment because of sex, and you also have violation of unreasonable search and seizure.

[00:19:31] Speaker 01:
And so both of those acts, if there was a case on point like that, would serve as the basis for proper notice and clearly established law.

[00:19:38] Speaker 04:
Go ahead.

[00:19:40] Speaker 04:
So you've now

[00:19:44] Speaker 04:
moved into the area of your cross-appeal.

[00:19:46] Speaker 04:
But if we were to determine that you can't look at the color of state law because of jurisdictional problems, but you can look at qualified immunity.

[00:19:56] Speaker 04:
And if we were to determine, as I was discussing with Ms.

[00:20:00] Speaker 04:
Kuhn, that there are these factual issues, that there is a baseline, but there is factual issues sufficient that you got to go back for trial, it would seem to me

[00:20:11] Speaker 04:
that it would be inconsistent with that to then say, let's take pendant, there should have been pendant jurisdiction on the substantive due process claim and we should affirm the district court on that because we're talking about the same underlying factual basis.

[00:20:28] Speaker 04:
So I'm not sure how we would do that without having some kind of legal and factual inconsistency.

[00:20:37] Speaker 01:
I don't, Your Honor, I appreciate your point.

[00:20:42] Speaker 01:
I don't think that's what the George case says.

[00:20:44] Speaker 01:
I think the George case says, and I'll admit it's in a footnote, right?

[00:20:48] Speaker 01:
But the Ninth Circuit says in the George case that the same legal standard and the same facts is a circumstance, especially under qualified immunity, that would allow us

[00:21:00] Speaker 01:
to invoke pendant jurisdiction, and other circuits have.

[00:21:04] Speaker 04:
Well, let's say we did, but then what I'm saying to you isn't there something, what you would basically say is that the district court granted summary judgment on the substantive due process, correct?

[00:21:16] Speaker 01:
Correct.

[00:21:17] Speaker 04:
In your favor?

[00:21:17] Speaker 01:
No.

[00:21:20] Speaker 04:
In favor of the county, so you want us to reverse that on appeal now?

[00:21:28] Speaker 01:
I want you to reverse the fact that it's, because what the district court found is not that there was not a constitutional violation, which I think is what you're getting at.

[00:21:40] Speaker 01:
What the district court found is that the law wasn't clearly established related to substantive due process.

[00:21:45] Speaker 01:
And so those two things are not inconsistent in my mind.

[00:21:48] Speaker 01:
Those two things are completely consistent, especially where you have, as here, the same acts that invoke two different constitutional violations.

[00:21:57] Speaker 03:
But I guess for pendant jurisdiction It's not just that there may be overlap between claims or issues But that one is inextricably intertwined with resolving the other and I just have a hard time seeing how we have to resolve a substantive due process issue in order to resolve the qualified immunity equal protection issues that are before us yeah, it's a good question and

[00:22:24] Speaker 01:
I fought to some extent with this in my mind, but in the end I couldn't get around it, and it's this.

[00:22:32] Speaker 01:
That if there is notice as the one constitutional violation,

[00:22:38] Speaker 01:
I don't think the court has to find that here.

[00:22:40] Speaker 01:
I think the case law, especially in George, says same facts, same law, same parties, they're inextricably intertwined.

[00:22:48] Speaker 01:
But if that does not satisfy the court, as far as pendant jurisdiction goes, I think the finding of the same act, going back to the strip search analogy, the same facts

[00:23:01] Speaker 01:
constitutional violations, then you do have independent jurisdiction, because if you're on notice of one constitutional violation, then you're on notice, right?

[00:23:13] Speaker 01:
It's not like we're taking a different set of facts.

[00:23:14] Speaker 01:
I think to rule otherwise, Your Honor, would be splitting hairs for no particular reason.

[00:23:21] Speaker 03:
I don't know that the Supreme Court would agree with you.

[00:23:24] Speaker 03:
When it talks in Casella or other cases about not staying at a level of generality, of having to be more specific, I don't think the court would say that just because a certain act might result in different constitutional violation claims, that the court resolving one makes it interchangeable with another.

[00:23:45] Speaker 03:
I mean, why does that make it clear to an officer on the scene that if I'm violating, let's say, the Eighth Amendment, that it would also violate the Fourteenth Amendment?

[00:23:59] Speaker 01:
qualified immunity, of course, is to put the officer on notice that his conduct is illegal.

[00:24:05] Speaker 01:
We don't want people running around suing officers who may not understand what they're doing is illegal or unconstitutional, maybe is more accurate.

[00:24:16] Speaker 01:
And so in this case, if the same act invokes two separate

[00:24:25] Speaker 01:
constitutional amendments.

[00:24:28] Speaker 01:
I think he's on your notice.

[00:24:29] Speaker 01:
You satisfied qualified immunity because the same act in two separate scenarios, sorry, the same act violates two separate constitutional violations.

[00:24:40] Speaker 01:
You are on notice, officer, right, that this particular act, strip searching in the middle of the street, a woman for sexual reasons, right, that

[00:24:51] Speaker 01:
You're on notice, and it satisfies the purpose of qualified immunity.

[00:24:56] Speaker 03:
So I couldn't find it, but can you point to any case where a court has exercised pending jurisdiction on interlocutory review for qualified immunity?

[00:25:08] Speaker 03:
I looked, and I couldn't see it.

[00:25:13] Speaker 01:
There was two cases.

[00:25:18] Speaker 01:
The Ninth Circuit said it was possible.

[00:25:20] Speaker 01:
That doesn't answer your question.

[00:25:24] Speaker 01:
Hudson v. Hall did, it's a 10th Circuit case, did exercise pendant jurisdiction on qualified immunity in two separate circumstances, or I'm sorry, in one separate circumstance involving two separate rights.

[00:25:40] Speaker 01:
One was a Fourth Amendment detainment and one was a Fourth Amendment search.

[00:25:45] Speaker 01:
And in that case, they ruled on both matters.

[00:25:50] Speaker 01:
And then I think that,

[00:26:01] Speaker 01:
One other case.

[00:26:05] Speaker 03:
Well, you can tell me later.

[00:26:06] Speaker 03:
You can tell the panel later if you find out later.

[00:26:10] Speaker 01:
It's a Jackson case, Your Honor.

[00:26:12] Speaker 01:
I'm sorry.

[00:26:12] Speaker 01:
And they didn't invoke pendant jurisdiction.

[00:26:16] Speaker 01:
But they didn't indicate that if the party had cross-appealed, because they didn't cross-appeal, that they would have invoked pendant jurisdiction in that case.

[00:26:27] Speaker 01:
And that's the Jackson case.

[00:26:28] Speaker 01:
I'm sorry.

[00:26:29] Speaker 01:
I don't have the full name of the site here in front of me.

[00:26:31] Speaker 01:
It is cited in the materials.

[00:26:33] Speaker 03:
So tell me, in your view, why Samson is... Let's talk about Samson just alone for the moment.

[00:26:41] Speaker 03:
Why is that clearly established law in the context of this case, in your view?

[00:26:46] Speaker 01:
Your Honor, I think it just follows a long line of cases, including Atkins and other cases that hold that, in this scenario, that using your power

[00:27:00] Speaker 01:
to abuse or coerce somebody into sexual activity or sexually harassing them in that context is clearly established.

[00:27:12] Speaker 01:
I think Sampson in conjunction with a lot of other cases, I think Sampson in conjunction with the 10th Circuit case

[00:27:20] Speaker 01:
that we reference earlier.

[00:27:22] Speaker 04:
We can't have any conjunctions with the problem.

[00:27:25] Speaker 04:
It has to be clearly established for an officer in the Ninth Circuit.

[00:27:29] Speaker 01:
Sure, and Fontana does that as well, but Sampson was one of the cases that did that as well.

[00:27:37] Speaker 01:
Fontana, Dangvang, all of those cases make it clearly established that you cannot use your governmental power to sexually harass or abuse women.

[00:27:48] Speaker 01:
But, Your Honor, I think even beyond that, my point in listing off those original cases in common sense, as I stated, is to Your Honor's question, which was, wouldn't any reasonable officer just know that he can't

[00:28:06] Speaker 01:
have sex with a known drug addict while the criminal charges are pending, that he can't do it in his uniform in a patrol vehicle, that he can't do it while she's high.

[00:28:22] Speaker 01:
So let me ask you this.

[00:28:24] Speaker 02:
Isn't this one of those unique cases where Hope versus Pelzer may lead the path to a decision in this case?

[00:28:35] Speaker 01:
Your Honor, I'm sorry, I don't know.

[00:28:38] Speaker 01:
Hope?

[00:28:38] Speaker 01:
Yeah, I don't know hope, yeah.

[00:28:40] Speaker 02:
Well, you might want to go take a look at it.

[00:28:42] Speaker 01:
Okay, okay.

[00:28:44] Speaker 01:
And my apologies, but... That's okay.

[00:28:47] Speaker 01:
Yeah, yeah.

[00:28:48] Speaker 01:
Just being a hundred percent.

[00:28:49] Speaker 02:
It was an Eighth Amendment case where the prison officials put this fellow in a cage in the yard and left him there.

[00:28:56] Speaker 02:
Okay.

[00:28:58] Speaker 02:
There was no case, but the Supreme Court made it.

[00:29:00] Speaker 02:
In that one rare instance, the Supreme Court said, this is so obviously wrong,

[00:29:06] Speaker 02:
You don't need another case.

[00:29:09] Speaker 01:
Yeah, and that's what Fontana says, right?

[00:29:12] Speaker 02:
That's from the Supreme Court.

[00:29:14] Speaker 02:
Although the Supreme Court has made it pretty clear, you need to be able to point to something.

[00:29:25] Speaker 02:
But they haven't completely said you need an identical case or you need something that's on all fours.

[00:29:32] Speaker 01:
And I agree, Your Honor, and that's what Fontana says.

[00:29:34] Speaker 01:
Fontana says, look, there's no legitimate governmental purpose in sexual harassment or sexual assault.

[00:29:41] Speaker 01:
And that's the exact case here.

[00:29:42] Speaker 01:
There is no functional governmental purpose.

[00:29:45] Speaker 01:
This is Malin per se.

[00:29:46] Speaker 01:
This is the case that it's so patently obvious that any reasonable officer would know that this is unconstitutional.

[00:29:54] Speaker 01:
To me, that's the biggest point as we sit here.

[00:30:03] Speaker 03:
Thank you very much.

[00:30:09] Speaker 00:
Good morning, Your Honors.

[00:30:11] Speaker 00:
I think I asked for five, but I think I have two left.

[00:30:13] Speaker 00:
I'll try to keep it to two.

[00:30:16] Speaker 00:
Briefly, going back to the appeal itself, this court asked, does the Hope case essentially control here?

[00:30:26] Speaker 00:
And again, this is specifically to the equal protection.

[00:30:28] Speaker 02:
I didn't use the word control.

[00:30:30] Speaker 02:
I just said, you know, my... Guide?

[00:30:33] Speaker 00:
Guide path, decision-making process.

[00:30:35] Speaker 00:
Sure.

[00:30:36] Speaker 00:
I think the question essentially is, isn't something so inherently wrong that the officer is on notice of it regardless of whether there's a point or a case directly on point?

[00:30:44] Speaker 00:
And here, if that was the way that the court could look at an issue like this, I think the issue in Samson would be, or the ruling in Samson would be very different.

[00:30:53] Speaker 00:
You know, counsel wants to collapse, basically notice of one type of constitutional violation is notice of another type of constitutional violation.

[00:31:01] Speaker 00:
In Samson, I think if the court was able to use that type of analysis, and if the court had used that type of analysis, they would have said, well, the officer was clearly on notice that that was unreasonable under the Fourth Amendment, so we're just going to apply it to the Fourteenth Amendment equal protection claim.

[00:31:16] Speaker 00:
And the court didn't do that, so I think that's oversimplifying the analysis that this court has inflicted upon itself.

[00:31:23] Speaker 00:
But turning more to the point, you know, again, you can't define this in terms of a level of generality.

[00:31:29] Speaker 00:
So if the level of generality is, well, isn't this just inherently wrong?

[00:31:32] Speaker 00:
You'd have to look at why the decision was in Ricky R. the way it was, why the decision was in Roe the way it was.

[00:31:38] Speaker 00:
I mean, those were sexually, those were sexual encounters between a state actor and a minor.

[00:31:44] Speaker 04:
I mean, those are almost, you know, more offensive than the facts of this case.

[00:31:50] Speaker 04:
disagree with you on the qualified immunity on the equal protection.

[00:32:00] Speaker 04:
How would you analyze then the cross appeal and whether it's inextricably related factually?

[00:32:09] Speaker 00:
And I think it may go back to the same type of analysis that I just articulated.

[00:32:13] Speaker 00:
You cannot, at least I've never seen this court collapse the analysis quite like that and say that while the analysis for the 14th Amendment equal protection claim is very similar to the 14th Amendment substantive due process claim,

[00:32:24] Speaker 00:
So if we decide one, we're essentially ipsy dicks at deciding the other.

[00:32:29] Speaker 00:
As the court pointed out, I've not seen a court exercise pendant jurisdiction in that fashion.

[00:32:35] Speaker 00:
I also looked, I couldn't find anything.

[00:32:36] Speaker 04:
I haven't found anything, but we're using those little words, inextricably intertwined, and it's the same.

[00:32:44] Speaker 00:
It's the same facts, but it would be a different legal analysis and a different type of notice to defendant Holloway.

[00:32:53] Speaker 00:
I mean, there's a different line of cases for equal protection as opposed to substantive due process, as opposed to Fourth Amendment.

[00:32:59] Speaker 00:
You know, frankly, I was sort of surprised that if counsel is going to move

[00:33:02] Speaker 00:
I'm surprised it wasn't under the Fourth Amendment granting of the Fourth Amendment claim because I think the seizure claim is a bit more similar to the equal protection claim But you know now that we're here, and we're under substantive due process That that claim is even more far afield from equal protection than than the Fourth Amendment claim

[00:33:19] Speaker 03:
I mean in a way it's I guess we're all wrestling with what box to put these things in and at the root of all of this is I take counsel's point it's an abuse of power from an office is the allegation where whether you're under arrest or you know you're a public servant and you're abusing your office in order to do something sexually inappropriate crossing a line and

[00:33:47] Speaker 03:
Why isn't that inextricable in the in the end?

[00:33:51] Speaker 00:
Between those two things sure and I think the court's use of the term box is appropriate I mean in the federal context and under the amendments and under the 14th amendment and the different causes of action available under the 14th amendment They are boxes, and they are different types of boxes.

[00:34:03] Speaker 00:
You know plaintiffs not without a remedy.

[00:34:05] Speaker 00:
She still has her wool ad claims She would still have number a number of state law claims, but in it in inherent in

[00:34:12] Speaker 00:
the 1983 analysis and the qualified immunity analysis is this analysis that was Holloway put on notice that his violation was unconstitutional and specifically unconstitutional as it relates to the specific cause of action.

[00:34:26] Speaker 00:
So that's why I think we have to analyze those things separately.

[00:34:32] Speaker 03:
Thank you.

[00:34:32] Speaker 03:
I think we are done with our questions.

[00:34:34] Speaker 03:
Council, thank you both for your very helpful arguments.

[00:34:36] Speaker 03:
The matter will stand submitted.