[00:00:08] Speaker 04:
Good morning, Your Honors.

[00:00:09] Speaker 04:
Kimberly Hutchison for the plaintiff appellant Roger Parker.

[00:00:12] Speaker 04:
I intend to reserve three minutes for rebuttal.

[00:00:16] Speaker 04:
This court should reverse the district court because Parker's first amended complaint sufficiently pled an allegation that the Riverside County District Attorney's Office violated his rights through an unconstitutional policy or practice of withholding exculpatory evidence.

[00:00:33] Speaker 04:
in order to pursue convictions at any cost, which resulted in his prolonged, unusually prolonged detention.

[00:00:41] Speaker 03:
So I have just a factual question that I couldn't determine from the briefing of the record, but why did he not have a, first of all, did he not have an initial appearance, and if not, why not?

[00:00:53] Speaker 04:
Your Honor, he did have appearances.

[00:00:55] Speaker 04:
The preliminary hearing was continued several times.

[00:00:58] Speaker 03:
Okay, so he had counsel.

[00:00:59] Speaker 04:
He did have appointed counsel.

[00:01:01] Speaker 03:
And they never filed any motions, speedy trial violations, anything like that?

[00:01:06] Speaker 03:
No, Your Honor.

[00:01:08] Speaker 04:
The only allegation in the complaint with respect to the criminal proceedings was that the assigned district attorney, Mr. Ross, spoke in chambers to the judge, Judge Ryan, asking him to dismiss the case and that Judge Ryan was not willing to do so.

[00:01:23] Speaker 00:
But there was a not guilty plea?

[00:01:25] Speaker 04:
Yes.

[00:01:26] Speaker 04:
It consistently was a not guilty plea, but a preliminary hearing was never held.

[00:01:31] Speaker 00:
And the reason for the because the council agreed to extend the time for preliminary hearing over and over and over again.

[00:01:39] Speaker 04:
Yes, while never being provided this material exculpatory evidence.

[00:01:43] Speaker 04:
So this perhaps relates to.

[00:01:47] Speaker 04:
if we get past this stage, whether that would be a due process violation and withholding of the exculpatory evidence at this pre-hearing stage.

[00:01:55] Speaker 04:
This court previously, in the last time that we were up here on an interlocutory appeal, decided that that was a cognizable claim under Tatum Lee, and so that issue is really not before this court.

[00:02:08] Speaker 00:
I think the prior panel said

[00:02:10] Speaker 00:
Leave to amend should be allowed to plead under Tatum Lee, but it didn't make any decision whether

[00:02:18] Speaker 00:
there was a true claim.

[00:02:21] Speaker 04:
Correct.

[00:02:21] Speaker 04:
And then the district court denied the defendant's motion to dismiss on those grounds.

[00:02:27] Speaker 04:
And there is no cross appeal here.

[00:02:28] Speaker 04:
So that issue is not presented to the court in this case.

[00:02:32] Speaker 04:
What's presented to the course here is whether that's a viable Monell claim against the county, which it is because it's an administrative policy.

[00:02:40] Speaker 04:
And this court can easily reach that conclusion by actually exactly following the reason in the Goldstein case.

[00:02:46] Speaker 04:
Section B lays out the constitutional and statutory sections under California law that show that the district attorney is actually a county official.

[00:02:55] Speaker 03:
Well in some context.

[00:02:56] Speaker 03:
Exactly.

[00:02:57] Speaker 03:
In some context the district attorney is a county official but in others he or she is a state official.

[00:03:04] Speaker 03:
Exactly.

[00:03:05] Speaker 03:
How are these not prosecutorial decisions?

[00:03:09] Speaker 03:
Not to disclose evidence, not to dismiss a case.

[00:03:12] Speaker 04:
And actually, it's section C of Goldstein that shows that.

[00:03:15] Speaker 04:
So section C gets into this particular function.

[00:03:18] Speaker 04:
In Goldstein, it was the informant collection.

[00:03:20] Speaker 04:
Here, it's exculpatory evidence.

[00:03:22] Speaker 04:
But what the Goldstein court looked at was the commission report, the final commission report, which laid out all of these recommendations of how policy should be established.

[00:03:32] Speaker 04:
In Goldstein, it very clearly established that the handling of informant information should be handled by a district attorney's office on a local level.

[00:03:39] Speaker 04:
And that was what drove the Goldstein Court's decision that that was an administrative policy and that the district attorney was acting as a county official in making it.

[00:03:48] Speaker 04:
In that exact same report, if you go to the section about exculpatory evidence, the exact same recommendations are made.

[00:03:55] Speaker 04:
And so what I'm specifically pointing to is at page 16 of that report, the recommendations are specifically made for prosecutors.

[00:04:03] Speaker 04:
And I'm quoting here that all district attorney offices formulate and disseminate a written office policy to govern Brady compliance.

[00:04:11] Speaker 04:
That's exactly mirroring what the report said for informant compliance in Goldstein.

[00:04:16] Speaker 03:
But you're not arguing that they didn't promulgate a policy on Brady compliance, you're arguing that they didn't dismiss the case or they didn't disclose exculpatory evidence.

[00:04:26] Speaker 03:
It seems difficult to reconcile that with the case law that supervisors also are immune from the conduct of the line prosecutors.

[00:04:38] Speaker 03:
So the supervisors who did not force the disclosure or allow the disclosure were acting as supervisors of the line prosecutors who are immune.

[00:04:48] Speaker 04:
I think this is actually an error in the district court's decision here and a misreading of the first amended complaint.

[00:04:55] Speaker 04:
If you look at the first amended complaint paragraph 61 and 62, which is at the second volume of the ER on page 44, the specific allegation is that the county had an unconstitutional custom pattern and practice of withholding exculpatory evidence.

[00:05:10] Speaker 04:
The next paragraph says the county had accustomed in practice of intimidating and punishing low-level prosecutors who refused to withhold significant exculpatory evidence from criminal defendants whose period of the detention is unusually prolonged.

[00:05:22] Speaker 04:
And then the later parts of the claim say that that is the moving force of the violation of the constitutional violation for Parker.

[00:05:30] Speaker 04:
Perhaps the use of the alternative theory of ratification here is what was confusing to the district judge, but the complaint does allege an unconstitutional

[00:05:40] Speaker 04:
policy practice or custom of withholding exculpatory evidence, which was what was implemented in this case, that administrative policy, and which is what led to Parker's due process violation here.

[00:05:53] Speaker 04:
And so if this court, I think the complaint sufficiently alleges that, but if this court were to decide that that was not sufficiently alleged there, it could remand for us to file another amended complaint, and additional information could be added to show that this was a practice and custom.

[00:06:09] Speaker 04:
And for that, I would point to the amicus brief, which brought up significant other evidence of other Brady violations like this one coming from the Riverside County District Attorney's Office.

[00:06:19] Speaker 04:
So it's clear that this was not an individual choice in Parker's case to withhold evidence.

[00:06:25] Speaker 04:
It was part of a longstanding custom and practice that this court actually called out in oral argument.

[00:06:31] Speaker 04:
Judge Kozinski noted that the Riverside District Attorney's Office was committing Brady violations

[00:06:37] Speaker 04:
and showing no desire to change that practice, showing no shame in that practice, and not admitting wrongdoing.

[00:06:44] Speaker 04:
And that's the problem here.

[00:06:45] Speaker 04:
Under the district court's analysis, by deciding that this unconstitutional policy is not subject to Monell review, there is a huge gap in a remedy available to a criminal defendant whose rights are being violated.

[00:06:59] Speaker 04:
Someone like Mr. Parker, who never was convicted,

[00:07:03] Speaker 04:
yet spent four years in custody would have no remedy for that violation, if not for section 1983.

[00:07:09] Speaker 04:
And because of what your honor recognized in terms of individual prosecutorial immunity, it's Monell that needs to provide this kind of action for him.

[00:07:18] Speaker 04:
And I say that because absent this kind of liability, there is no incentive for a district attorney's office to follow the law.

[00:07:25] Speaker 04:
They can have unconstitutional policies that they will never be liable for.

[00:07:30] Speaker 04:
This is an example

[00:07:33] Speaker 04:
of what Monell, really what 1983 was made for, but why Monell allows 1983 liability to be extended to government entities.

[00:07:43] Speaker 01:
And part of the issue was also, unfortunately, poor lawyering by your clients at the trial court level, not asking for a preliminary hearing for four years.

[00:07:53] Speaker 01:
I mean, you should have put the burden on the government to show what evidence they have to continue detaining him.

[00:08:02] Speaker 01:
mitigating what you said but that was part of the problem at least in this case is they just for whatever reason for four years never asked the government to you know kind of show its cards.

[00:08:11] Speaker 04:
I certainly understand the concern, Your Honor, but respectfully that attorney did not have this exculpatory information.

[00:08:16] Speaker 04:
So being asked to go forward on a preliminary hearing with only what was clearly a false confection, but no alternative evidence to present, I'm not sure that that failure is really attributable to the defense attorney, rather to the county that deliberately withheld the exculpatory evidence that would have changed the result of that preliminary hearing.

[00:08:36] Speaker 03:
But four years is such a long time for defense counsel to let that continue.

[00:08:40] Speaker 03:
It seems that you're suggesting we should, I think in your brief, you suggested we should find an exception to the absolute immunity because these circumstances were so egregious.

[00:08:52] Speaker 03:
And I don't disagree with you.

[00:08:54] Speaker 03:
The facts that's laid out are egregious.

[00:08:57] Speaker 03:
But that seems to be an argument that there just should be no immunity, which is not something that we can decide.

[00:09:02] Speaker 03:
I mean, the Supreme Court has announced this

[00:09:04] Speaker 03:
doctrine, not the Ninth Circuit.

[00:09:06] Speaker 03:
So we're bound by it.

[00:09:08] Speaker 03:
And then I think Judge Lee's point is well taken.

[00:09:10] Speaker 03:
You're saying there's no remedy.

[00:09:11] Speaker 03:
There is.

[00:09:12] Speaker 03:
There's a malpractice claim here.

[00:09:13] Speaker 03:
It seems that that is one remedy.

[00:09:15] Speaker 03:
There's also bar complaints against the lawyers involved.

[00:09:18] Speaker 03:
I mean, there are other things that can happen aside from civil liability that the Supreme Court has said there's immunity.

[00:09:25] Speaker 04:
And so first, I appreciate your recognition that what Mr. Parker suffered here was egregious and a harm that he should have some kind of a remedy for.

[00:09:34] Speaker 04:
Again, I point to the commission report here.

[00:09:37] Speaker 04:
In discussing these suggested changes that the state was delegating to county officials, they outlined the extreme lack of enforcement in the areas that you just suggested.

[00:09:49] Speaker 04:
So one of the things that's outlined in that report is how malpractice committed by prosecutors is very rarely reported and even less often acted on.

[00:10:01] Speaker 04:
And so the individual, while I understand what your honor is saying about individual prosecutorial immunity, that particular type of enforcement that you've suggested here not only would not benefit Mr. Parker, but also is not being used in a great way.

[00:10:16] Speaker 04:
But more to the point,

[00:10:18] Speaker 04:
That is only talking about basically bad apples within a prosecutor's office.

[00:10:23] Speaker 04:
What we're talking about here is a county office that has an unconstitutional policy.

[00:10:29] Speaker 04:
So immunizing individual defendants, while that may be required by the Supreme Court, it doesn't protect an entire office from having an unconstitutional policy that harms individuals.

[00:10:41] Speaker 04:
And that's the harm that we're asking this court to hold can be.

[00:10:45] Speaker 04:
address through a Monell claim here.

[00:10:48] Speaker 04:
It's not the harm of a conviction.

[00:10:51] Speaker 04:
It's not the harm of one bad prosecutor.

[00:10:53] Speaker 04:
It's the harm of an entire office deciding that their constitutional obligation to turn over exculpatory evidence is going to be ignored and intentionally ignored for the sake of pursuing convictions at any cost.

[00:11:06] Speaker 04:
It's that unconstitutional policy that we laid out in the first amended complaint that completely aligns with the administrative policy in Goldstein.

[00:11:14] Speaker 04:
And I do suggest, Your Honors, you could completely copy section B of Goldstein and then section C and just sub in the sections of the commission report that are dealing with exculpatory evidence rather than the ones about informant evidence because they completely line up here.

[00:11:31] Speaker 04:
The administrative policy for informant evidence that was held to be,

[00:11:35] Speaker 04:
subject to a Monell claim in Goldstein, is described in exactly the same way in the commission report as the exculpatory evidence.

[00:11:43] Speaker 04:
And I would read for your honors, also review in that commission report, at page 97, which is explaining the reasons that this was designated to counties to establish these policies as opposed to the state, the commission says, the size and organization of prosecutors' offices throughout the state of California vary substantially.

[00:12:02] Speaker 04:
and assuring full compliance with these obligations is best addressed by the adoption of clear administrative policies within each office.

[00:12:12] Speaker 04:
That is a clear indication that the state of California believes that a district attorney is acting as a county official when establishing policies related to the disclosure of exculpatory evidence.

[00:12:23] Speaker 04:
That policy in the county of Riverside was to withhold exculpatory evidence, resulting in the prolonged incarceration of people like Mr. Parker.

[00:12:31] Speaker 04:
That is a cognizable Monell claim under Goldstein, so this court should reverse.

[00:12:35] Speaker 00:
Is it your position that the attorneys here were ordered by the county not to give exculpatory evidence, or was that up to their discretion?

[00:12:45] Speaker 04:
It was part of a policy practice or custom.

[00:12:47] Speaker 04:
So I'm not suggesting it was an individual order in this case.

[00:12:50] Speaker 04:
It was actually the policy of the office to withhold this exculpatory evidence.

[00:12:55] Speaker 00:
So they would be going against a policy to give Brady evidence over to the side?

[00:13:02] Speaker 04:
Yes, to give Brady evidence.

[00:13:05] Speaker 00:
That's your allegation?

[00:13:06] Speaker 04:
Correct.

[00:13:07] Speaker 04:
That is the allegation of complaint.

[00:13:08] Speaker 04:
And I will reserve my meeting time for rebuttal.

[00:13:10] Speaker 04:
Thank you.

[00:13:10] Speaker 04:
Thank you.

[00:13:16] Speaker 03:
Council I see you are splitting time with your colleague You have nine minutes and this McLaughlin has six

[00:13:28] Speaker 03:
We're going to use separate clocks to make sure that Mrs. McLaughlin actually gets her six minutes.

[00:13:32] Speaker 03:
If you are reserving, please explain to me how you wish to reserve time and who's going.

[00:13:38] Speaker 02:
Absolutely.

[00:13:39] Speaker 03:
I will do that.

[00:13:39] Speaker 03:
I'm sorry.

[00:13:40] Speaker 03:
You guys are not reserving time.

[00:13:41] Speaker 03:
You're not doing a rebuttal.

[00:13:42] Speaker 02:
That's correct.

[00:13:43] Speaker 03:
Your opponent is.

[00:13:43] Speaker 03:
Okay.

[00:13:44] Speaker 03:
So go ahead.

[00:13:44] Speaker 03:
Sorry.

[00:13:44] Speaker 03:
My confusion.

[00:13:45] Speaker 02:
That's all right.

[00:13:46] Speaker 02:
Good morning.

[00:13:47] Speaker 02:
May it please the court.

[00:13:48] Speaker 02:
Tony Sane and Abigail McLaughlin on behalf of the defendant and appellees, the County of Riverside.

[00:13:53] Speaker 02:
and the four defendant prosecutors.

[00:13:55] Speaker 02:
I will be addressing the immunity and due process issues.

[00:13:58] Speaker 02:
My partner, Ms.

[00:13:59] Speaker 02:
McLaughlin, will be addressing the Monell, state actor, and other claims issues.

[00:14:04] Speaker 02:
Before I turn to the immunity honors, I believe that there is a fatal flaw in plaintiff's entire case that eliminates further discussion or the need for further discussion.

[00:14:17] Speaker 02:
One cannot have the exact same conduct by the exact same actors

[00:14:23] Speaker 02:
at the exact same portion of the criminal proceedings under the exact same constitutional provision be both actionable and not actionable.

[00:14:35] Speaker 02:
The Supreme Court has been very clear in multiple cases that when it comes to a criminal prosecutor's

[00:14:42] Speaker 02:
failure to disclose exculpatory evidence to a criminal defendant at any point before trial or conviction, there is no actionable claim under the due process clause, period, full stop.

[00:14:57] Speaker 00:
But that's for the purpose of allowing the federal prosecutor or the prosecutor to prosecute the claims that he thinks are valid as opposed to the claims that he doesn't think is valid, right?

[00:15:09] Speaker 02:
That is part of the purpose, yes, Your Honor.

[00:15:12] Speaker 00:
The plaintiff takes the position that that decision-making power, given a professional prosecutor, was taken away from the professional prosecutors by the Mannell claim.

[00:15:30] Speaker 02:
I'll let my partner address that specific issue, but I'll just summarize by saying that obviously we know that any individual prosecutor has the ability and the discretion to comply or not comply with the policy.

[00:15:42] Speaker 02:
Plaintiff's allegation assumes, against all logic and fact,

[00:15:48] Speaker 02:
that prosecutors are automatons, that they automatically do what policy tells them to do and have no discretion, take no action.

[00:15:54] Speaker 02:
If that were the case, if they had no individual decision-making power, then they would be immune from liability for lack of intentional conduct, which is not the case.

[00:16:02] Speaker 02:
But going back to this larger issue, Your Honor, plaintiffs just said on their oral argument twice

[00:16:12] Speaker 02:
that the wrong that they are seeking to vindicate was a Brady violation, a failure to disclose exculpatory evidence to the criminal defendant.

[00:16:23] Speaker 02:
The case law has been very clear that that claim is not actionable before there's been a criminal conviction, which is not the case here.

[00:16:29] Speaker 02:
In fact, it's undisputed in this case that there wasn't even an evidentiary proceeding where this

[00:16:36] Speaker 02:
exculpatory evidence might have affected the outcome.

[00:16:39] Speaker 02:
The bottom line is that what Tatum Lee addresses is a completely different set of conduct than is actionable under the Due Process Clause for criminal prosecutors' disclosures of exculpatory evidence to criminal defendants.

[00:16:56] Speaker 02:
That's a different set of conduct.

[00:16:58] Speaker 02:
That conduct in Tatum Lee is about law enforcement officers failing to disclose exculpatory conduct to the prosecutors.

[00:17:08] Speaker 02:
And that being a potential due process violation, which is not the factual allegation here.

[00:17:14] Speaker 02:
So they don't even have an actionable claim under the due process under all the precedent of the Supreme Court and this circuit.

[00:17:21] Speaker 02:
And even if they did,

[00:17:22] Speaker 02:
we would be immune.

[00:17:23] Speaker 02:
I'm sorry, Your Honor, it seemed like you had a question.

[00:17:25] Speaker 03:
I do.

[00:17:25] Speaker 03:
So your friend on the other side argued that there's no accountability for the prosecutors, there's no remedy, and I mean that you would normally have

[00:17:36] Speaker 03:
the specter of a conviction being overturned because of a Brady violation, things like that, or evidence being excluded, let it happen.

[00:17:44] Speaker 03:
So, because there's no trial, and so there's no remedy against prosecutors in that sense, but she seems to be correct that there's no mechanism here to hold the prosecutors accountable for what appears to be pretty egregious misconduct.

[00:18:01] Speaker 02:
Your Honor, I disagree with that respectfully because there was a remedy.

[00:18:04] Speaker 02:
In addition to the remedy that Your Honor cited, the remedy was a timely filing of a malicious prosecution claim.

[00:18:11] Speaker 02:
But Mr. Parker didn't do that.

[00:18:13] Speaker 02:
He waited for over seven years, well past the statute of limitations, to bring in that claim.

[00:18:17] Speaker 02:
It was time barred in the earlier proceeding.

[00:18:19] Speaker 02:
That ruling was never challenged on appeal.

[00:18:22] Speaker 02:
So there is a viable path for relief, but it's not a Brady claim.

[00:18:27] Speaker 02:
It's a different kind of claim based on different conduct.

[00:18:31] Speaker 02:
And that was not what was alleged in this case.

[00:18:33] Speaker 02:
It's not what's at issue in this case.

[00:18:36] Speaker 02:
And I think what's also important to emphasize, Your Honor, is that

[00:18:40] Speaker 02:
Even if there had been a viable due process claim here, which there's not, these defendant prosecutors would be immune.

[00:18:49] Speaker 02:
As Your Honor implied, the absolute immunity is designed to protect the vigorous prosecution of crime, to protect society writ large.

[00:18:58] Speaker 02:
If we chill that by allowing civil liability against individual prosecutors, like the four defendant prosecutorial supervisors here,

[00:19:06] Speaker 02:
We are hurting ourselves as a society.

[00:19:08] Speaker 02:
That's why that absolute immunity applies.

[00:19:12] Speaker 02:
And the scope of the immunity applies to prosecutorial decisions.

[00:19:15] Speaker 02:
And the case law could not be clearer.

[00:19:17] Speaker 02:
Over and over and over again, the case law tells us that when it comes to decisions like calling witnesses, bringing charges, and specifically whether or not and when to disclose exculpatory evidence, those are prosecutorial decisions that fall squarely within the ambit of the absolute immunity.

[00:19:36] Speaker 00:
So even when the bosses of the prosecutors tell them not to prosecute?

[00:19:42] Speaker 02:
Assuming that that were true.

[00:19:44] Speaker 02:
I believe that the allegation, Your Honor, is that the bosses of the prosecutors told them not to disclose the exculpatory evidence or didn't disclose it to the underlying prosecutors.

[00:19:52] Speaker 02:
Assuming that's the allegation, yes, those are prosecutorial decisions that are absolutely covered by the immunity.

[00:19:59] Speaker 02:
With that said, Your Honor, unless the Court has any questions, I do believe that

[00:20:03] Speaker 02:
This is pretty clear and falls squarely within the case law.

[00:20:06] Speaker 02:
I would also like to direct the court's attention to the concurrence that was filed in the prior Parker case that was written by Judge Nelson where he explains that in that prior Parker case, this court

[00:20:19] Speaker 02:
slightly deviating from Supreme Court precedents and mandates had extended, had expanded the Brady disclosure right to all the way up to including evidentiary proceedings before trial.

[00:20:31] Speaker 02:
That's never before been ruled.

[00:20:32] Speaker 02:
That's never something the Supreme Court has allowed.

[00:20:35] Speaker 02:
But in Parker 1, this court extended it to

[00:20:39] Speaker 02:
Pretrial evidentiary proceedings like the preliminary hearing but that doesn't save mr. Parker's claim here because it's also undisputed that there was no pretrial evidentiary proceeding there was no Evidentiary or court proceeding where this evidence could have affected the outcome and that's why in Parker one that Brady violation claim that plaintiffs just conceded is still being litigated right here today is invalid and With that your honor I'll view the balance of my time to my co-counsel will address the court's other

[00:21:08] Speaker 02:
Thank you.

[00:21:26] Speaker 05:
Good morning, Your Honors, and as my colleague said, my name is Abigail McLaughlin, and I also represent the defendants in this matter.

[00:21:33] Speaker 05:
I will be addressing the Monell claim at issue, specifically that it cannot be maintained where a district attorney is acting as a state actor when preparing to prosecute and prosecuting criminal violations of state law.

[00:21:46] Speaker 05:
I respectfully disagree with my friend on the other side that Goldstein is on all fours with this matter.

[00:21:52] Speaker 05:
Goldstein specifically addressed an information database regarding informant information, where both the defense counsel and the prosecutor were not made aware that an informant had continuously received benefits for his testimony and had ultimately perjured himself.

[00:22:11] Speaker 05:
The issue there was a database that

[00:22:13] Speaker 05:
aided those prosecutors in regards to their constitutional duties.

[00:22:19] Speaker 05:
It would be similar in regards to the report that my friend on the other side pointed out, as to the Brady List required in district attorney's offices, which aids prosecutors in regards to which officers have in the past

[00:22:34] Speaker 05:
violated Brady or not.

[00:22:36] Speaker 05:
But that type of list is not what is at issue in this matter.

[00:22:40] Speaker 05:
What is at issue in this matter is the issue as to whether a alleged policy, and I know that at this stage of the appeal we're taking all of their facts as true, we obviously

[00:22:50] Speaker 05:
dispute a lot of those facts, but we're taking them as true, that there was a policy that under any circumstance that exculpatory evidence should not be turned over.

[00:23:01] Speaker 05:
But that's not the allegations in plaintiff's complaint as to the violation of Mr. Parker's constitutional rights.

[00:23:08] Speaker 05:
And for a Monell liability claim, you need that underlying constitutional violation.

[00:23:13] Speaker 05:
It's a pendant claim.

[00:23:14] Speaker 05:
Here what they're saying is that everybody knew about this exculpatory evidence and made the decision, the active decision, to not turn over that evidence, which is specifically a prosecutorial decision.

[00:23:29] Speaker 05:
It is a decision to continue to prosecute even with knowledge of potential exculpatory evidence.

[00:23:35] Speaker 00:
But if the bosses of the prosecutors tell them never to turn over exculpatory evidence,

[00:23:40] Speaker 00:
They're not making it, the prosecutors aren't making the decision, their bosses are.

[00:23:45] Speaker 05:
Well, in this matter, Your Honor, the boss made the decision with the knowledge of the specific exculpatory evidence in Parker's case.

[00:23:53] Speaker 05:
It wasn't a blanket policy that caused Parker's constitutional violation.

[00:23:57] Speaker 00:
That's not what I understand the plaintiff to be saying.

[00:24:00] Speaker 00:
The plaintiff is saying that Riverside had a policy not to give exculpatory evidence over, not just in Parker's case, but in everybody's case.

[00:24:10] Speaker 05:
Your Honor, you are correct that that's their allegation, but when it comes to the underlying constitutional violation as to Parker, which is required, so in order to bring a Monell liability claim, you have to show an underlying constitution.

[00:24:23] Speaker 00:
But you're assuming the prosecutor made that decision rather than his boss.

[00:24:26] Speaker 05:
Well, in actually in plaintiff's complaint, and I apologize that I don't have the exact paragraphs in front of me, Your Honor.

[00:24:33] Speaker 05:
They actually alleged that Zellerbach was informed and knew of the specific exculpatory evidence in Parker's matter.

[00:24:41] Speaker 05:
It wasn't just a, the line prosecutor followed the policy.

[00:24:45] Speaker 05:
They're saying from the bottom to the top, they all knew about this specific case.

[00:24:50] Speaker 00:
That doesn't meet the issue that was put by the plaintiff, which is,

[00:24:54] Speaker 00:
Was he acting pursuant to a policy or did he make the decision himself?

[00:24:59] Speaker 05:
Well, in this case, Your Honor, the decision by the underlying district attorney, Ross, he knew about the exculpatory evidence, taking the facts as true.

[00:25:10] Speaker 05:
He wanted to turn it over.

[00:25:11] Speaker 05:
He brought the exculpatory evidence to his supervisors.

[00:25:16] Speaker 05:
And they didn't say, well, per our policy, turn it over.

[00:25:19] Speaker 05:
The allegations in the complaint is that they said, in this specific matter, don't turn over the exculpatory evidence.

[00:25:25] Speaker 01:
So weren't there two line prosecutors that were brought in and both of them said, no, we don't have enough evidence here, we've got the wrong guy.

[00:25:32] Speaker 01:
But then their supervisor in both instances just ignored them or ordered them not to turn it over.

[00:25:38] Speaker 01:
I mean, that suggests more of a policy if you have two line attorneys who looked at the facts and say, no, we have the wrong guy.

[00:25:47] Speaker 05:
Well, Your Honor, yes, in that instance, taking the allegations is true.

[00:25:52] Speaker 05:
There were two that said, we have the wrong guy.

[00:25:55] Speaker 05:
But two instances, that's not a blanket policy of don't turn over the evidence.

[00:26:00] Speaker 05:
They were presented with the specific evidence, and they made the decision to continue to prosecute.

[00:26:05] Speaker 00:
That's not what the plaintiff was alleging.

[00:26:07] Speaker 00:
They're saying that regardless,

[00:26:10] Speaker 00:
of this case, this case was simply a cookie cutter case, exculpatory evidence, we have a policy not to turn it over, then we don't turn it over.

[00:26:19] Speaker 05:
Well, Your Honor, respectfully, I disagree with the contention that this is a cookie cutter case.

[00:26:24] Speaker 05:
As you all have already pointed out, this really wasn't a cookie cutter case because we didn't have a preliminary hearing for four years.

[00:26:30] Speaker 05:
We have other factors going on.

[00:26:33] Speaker 05:
It's not, especially in terms of the exculpatory evidence.

[00:26:36] Speaker 00:
I think their position is that the decision

[00:26:40] Speaker 00:
not to turn over the exculpatory evidence was not made by the prosecutors, but by the county and an administrative action.

[00:26:48] Speaker 05:
Correct.

[00:26:48] Speaker 05:
But it's still not an administrative action, your honor.

[00:26:51] Speaker 05:
It is still a decision not to turn over exculpatory evidence and to continue to prosecute, which is a prosecutorial decision.

[00:27:00] Speaker 00:
Consistent with the administrative policy.

[00:27:04] Speaker 05:
Even though it is consistent with the administrative policy, under Goldstein, even if it is a policy, if it is a policy that embodies a prosecutorial action, a decision in regards to prosecution, even if it's an overarching policy, it's still prosecutorial in nature.

[00:27:23] Speaker 05:
And the individual, the supervisor making the decision, is acting as a state official in saying, we are going to continue the prosecution in this case, that under Brougham,

[00:27:33] Speaker 05:
and Bogan, that they are immune, as my colleague stated, in regards to turning over exculpatory evidence.

[00:27:46] Speaker 05:
And under the other progenies cited in our brief, it is also specifically

[00:27:54] Speaker 05:
I am so sorry, Your Honor.

[00:27:55] Speaker 05:
I just lost my train of thought.

[00:27:57] Speaker 05:
The defendants here, I do want to point out, are not all lying prosecutors.

[00:28:00] Speaker 05:
They are the supervisors.

[00:28:02] Speaker 05:
And those supervisors, even if there is a policy, as plaintiff alleges, getting back to my point, I'm making it there, even if there is a policy plaintiff alleges, that policy still underlies a prosecutorial decision on whether to prosecute or not.

[00:28:16] Speaker 05:
We are not talking about a Brady List database that wasn't set up and was ignored.

[00:28:20] Speaker 05:
We're not talking about the database in Goldstein that's referring to an index of individuals.

[00:28:27] Speaker 05:
We are talking about the decision whether to turn over exculpatory evidence and whether to prosecute or not.

[00:28:33] Speaker 05:
And going back to what my colleague was talking about in regards to the underlying constitutional violation, as we keep saying, all of this sounds in Brady.

[00:28:44] Speaker 05:
This court has already determined that a Brady violation was not actionable here.

[00:28:48] Speaker 05:
The underlying constitutional violation has to be in regards to Mr. Parker.

[00:28:53] Speaker 05:
And there is not an underlying constitutional violation that is not subject to prosecutorial immunity and is not in regards to a specific prosecutorial decision whether or not to convict.

[00:29:05] Speaker 05:
I see my time is up, so if there are no remaining questions, I'll allow rebuttals to proceed.

[00:29:21] Speaker 04:
Thank you, Your Honors.

[00:29:22] Speaker 04:
I just have three brief points in rebuttal.

[00:29:25] Speaker 04:
First, to the extent I referred to a Brady violation, I'm referring to the withholding of exculpatory evidence.

[00:29:29] Speaker 04:
The commission report refers to exculpatory evidence as Brady evidence, but this is a tatumly violation, as this court previously talked about.

[00:29:36] Speaker 04:
Second, my colleague who is just speaking said Goldstein is not on all fours because Goldstein was talking about compiling a list and we are talking about turning over exculpatory information.

[00:29:47] Speaker 04:
I think that's giving short shrift to what Goldstein was actually reading in the commission report.

[00:29:52] Speaker 04:
If you read the two parts of the commission report together, they're both talking about compiling lists.

[00:29:57] Speaker 04:
using the information on the list to fulfill obligations.

[00:30:00] Speaker 04:
When it comes to exculpatory evidence, the commission report is specifically recommending an administrative policy for gathering exculpatory material in a systematic fashion, tracking the delivery of that material, and disclosing that material determined to be relevant.

[00:30:16] Speaker 04:
Notably, that was supposed to happen as soon as that determination is made that it's exculpatory,

[00:30:21] Speaker 04:
prior to the entry of a guilty plea.

[00:30:23] Speaker 03:
So your argument on the Tatum Lee claim I think goes to the causation prong.

[00:30:28] Speaker 03:
So the three parts of the claim that the detention was prolonged, knowledge that it was wrongful and it caused the injury.

[00:30:38] Speaker 03:
And your theory for causation is that they failed to dismiss the charges and they did not disclose exculpatory evidence, which, and you're nodding, are you?

[00:30:49] Speaker 03:
So you're nodding that you're hearing me, okay.

[00:30:55] Speaker 03:
So how are those two allegations of causation not prosecutorial decisions that are immune?

[00:31:03] Speaker 03:
Declining to dismiss charges and failing to disclose exculpatory evidence.

[00:31:08] Speaker 04:
So those two things are together encapsulated by the administrative policy to not dismiss charges, fail to disclose exculpatory evidence, to pursue convictions at any cost.

[00:31:18] Speaker 04:
And so I would also just point out to your honors that alligative arguments about whether this is a viable Tatum Lee claim were not pursued on a cross appeal by opposing counsel.

[00:31:27] Speaker 04:
What we're focusing on is what your honor correctly recognized.

[00:31:31] Speaker 04:
Our allegation is that this was not an individual.

[00:31:33] Speaker 00:
And this is an appeal from a judgment on the pleadings.

[00:31:37] Speaker 00:
So your allegations have to be taken to be true.

[00:31:39] Speaker 04:
Exactly.

[00:31:41] Speaker 04:
And our allegations are that this was the application of an administrative policy, which is... Well, that's a conclusionary allegation.

[00:31:48] Speaker 00:
You have to allege objective facts from which we can infer under Iqbal, right?

[00:31:55] Speaker 04:
Correct your honor and to the extent that we failed to include specific facts about that I would say it was error for the district court to deny leave to amend.

[00:32:03] Speaker 04:
This was the first time in many years that opposing counsel raised the issue of immunity.

[00:32:07] Speaker 00:
Did you make a proffer of what objective facts you would allege if you were allowed to amend.

[00:32:13] Speaker 00:
No, we were denied leave to amend we did not make a problem I didn't ask whether you were denied leave from and my question was did you make a proffer of what facts?

[00:32:23] Speaker 00:
Objective facts you would plead if you were given the opportunity to amend I You're racking my memory.

[00:32:31] Speaker 04:
I'm sorry.

[00:32:32] Speaker 04:
I don't remember this I believe that we asked for leave to amend because we could add additional facts showing that this is a practice what?

[00:32:39] Speaker 00:
I'll try a third time

[00:32:40] Speaker 00:
Did you make a proffer of evidence as to what you would actually allege?

[00:32:46] Speaker 04:
No, not separately.

[00:32:49] Speaker 04:
I believe in our opposition, we asked for leave to amend and suggested that we could include additional facts about this path.

[00:32:56] Speaker 00:
What facts?

[00:32:57] Speaker 04:
Those facts are largely summarized in the amicus brief of the numerous Brady violations committed by the Riverside County District Attorney's Office.

[00:33:06] Speaker 04:
By Brady violations, I do mean any prosecutorial misconduct of withholding exculpatory evidence.

[00:33:10] Speaker 04:
So we could certainly supplement our complaint to explain all of those prior instances of misconduct and further bring out this court's recognition of that pattern of misconduct.

[00:33:23] Speaker 04:
It is the pattern of withholding exculpatory evidence pursuant to this administrative policy that is the due process violation here.

[00:33:30] Speaker 03:
The amicus brief was not before the district court, so is it your position that something that is not presented to the district court but later submitted to the Court of Appeals is sufficient as a proffer?

[00:33:41] Speaker 04:
No, Your Honor, I'm not suggesting that we did not submit a proffer.

[00:33:45] Speaker 04:
We did ask for leave to amend.

[00:33:47] Speaker 04:
The district court decided that we should not be granted leave to amend.

[00:33:51] Speaker 04:
Despite the federal rules saying it should be freely granted.

[00:33:54] Speaker 03:
Unless it's futile.

[00:33:55] Speaker 03:
So if you had made a proffer, you could have explained to the district court this would not be futile because we could show this evidence.

[00:34:02] Speaker 04:
And respectfully, I believe it was the district court's error in determining that it would be futile.

[00:34:07] Speaker 04:
without considering our argument that there was a pattern in practice here.

[00:34:11] Speaker 04:
So what we did present to the district court was Judge Cosinti's statements about how this was a repeated behavior of Riverside County.

[00:34:20] Speaker 04:
If the district court did not think that was a sufficient allegation of a pattern or practice, we would be able to supplement that and, you know,

[00:34:28] Speaker 04:
Retrospective 2020, if I could go back now, sitting in this moment, and submit that proffer, I would have.

[00:34:35] Speaker 04:
But I do think the federal rules allow for liberal amending when it wouldn't be futile.

[00:34:40] Speaker 04:
And this court can see that it would not be futile based on the information before you.

[00:34:44] Speaker 04:
And so I would ask if you do not reverse on the finding that the person in a complaint sufficiently pleads and will now claim that you at least remand to give us an opportunity to amend and add those facts.

[00:34:58] Speaker 03:
Thank you, Your Honors.

[00:35:00] Speaker 03:
Council, thank you all.

[00:35:02] Speaker 03:
All three of you for your arguments this morning.

[00:35:03] Speaker 03:
They were helpful.

[00:35:04] Speaker 03:
And this case is submitted.