[00:00:06] Speaker 03:
Mr. Mr. Renick Good morning your honors.

[00:00:11] Speaker 02:
I'd like to reserve five minutes for rebuttal Just watch the clock.

[00:00:15] Speaker 02:
Thank you This appeal primarily turns on the issue of whether or not the declaration from mr. Brown was properly Or admitted or rather whether the motion to strike was so why is that issue before us now?

[00:00:31] Speaker 00:
Why isn't that part of the Johnson versus Jones?

[00:00:34] Speaker 00:
notion that we are not getting involved in whether a summary judgment was properly granted.

[00:00:39] Speaker 02:
Because this goes to the issue of what evidence was properly before the court at all.

[00:00:44] Speaker 02:
This was not simply a motion to strike.

[00:00:47] Speaker 02:
There was a parallel objection.

[00:00:49] Speaker 02:
You know, issues about whether or not evidence is properly part of the consideration of the trial court is just... Do you know any case, any of these 1983 collateral order

[00:01:03] Speaker 00:
appeals in which an evidentiary question has been addressed?

[00:01:15] Speaker 00:
Not specifically, Your Honor, but it's not... Do you think that they all came up with when there was no dispute before the summary judgment in any of these cases?

[00:01:25] Speaker 00:
It's fairly usual that the disputes of these kinds occur before the judge gets to a summary judgment determination.

[00:01:33] Speaker 02:
Right, and the objections are made all the time.

[00:01:35] Speaker 02:
Right.

[00:01:35] Speaker 00:
And the issue of whether or not the evidence... So if we're going to get into the propriety of those objections on these collateral order appeals for the same reasons that the Supreme Court said in Johnson, we're basically undermining the whole collateral order doctrine.

[00:01:54] Speaker 02:
I don't think so if the issue is based on the evidence in front of the trial court.

[00:02:01] Speaker 02:
whether or not qualified immunity was appropriate, you have to go to the basic issue of what's... Just a minute, just a minute.

[00:02:07] Speaker 01:
That sounds like a great premise, but what is the case that says that?

[00:02:12] Speaker 01:
That's what Judge Berzon is really asking you.

[00:02:16] Speaker 01:
Estate of Esch versus Manuel Giordana says, the doctrine of pendant appellate jurisdiction

[00:02:25] Speaker 01:
allows a court to review an otherwise non-appellate ruling, which in general discovery rulings are not appealable until the end of the trial, non-appellate ruling when it is inextricably intertwined with or necessary to ensure the meaningful review of the order properly before us.

[00:02:53] Speaker 01:
This is an inextricate inextricate.

[00:02:56] Speaker 01:
Yeah, from Idaho to say this is not inextricably intertwined discovery dispute versus qualified immunity dispute.

[00:03:04] Speaker 01:
So are you arguing that it's necessary to ensure a meaningful review of the order properly before us?

[00:03:14] Speaker 01:
Yes, but I think if you're not you can't get it up here because we only have a we only have appellate jurisdiction over qualified immunity and if this is a discovery dispute, it's not coming in unless you can make it

[00:03:30] Speaker 01:
Meaningfully reviewable to the order properly before us.

[00:03:34] Speaker 02:
I think where we're getting Trapped is calling this a discovery dispute.

[00:03:39] Speaker 01:
It's not the short is he it was a motion to strike It was an affidavit put together the judge said what to do with that.

[00:03:47] Speaker 01:
That's a discovery dispute I Would disagree your honor.

[00:03:51] Speaker 02:
I think is it well a discovery dispute would be is

[00:03:57] Speaker 02:
Is the violation of Rule 26 a reason to prevent this evidence from coming in under any circumstances?

[00:04:08] Speaker 01:
That's a discovery dispute.

[00:04:10] Speaker 02:
Yes, but that's not what this was.

[00:04:12] Speaker 02:
This was a motion to strike from the record on a motion for summary judgment of a particular piece of evidence offered by the plaintiffs in opposition to the

[00:04:27] Speaker 02:
the motion for summary judgment.

[00:04:30] Speaker 01:
Because why was it motion to strike?

[00:04:34] Speaker 01:
Because of what?

[00:04:35] Speaker 01:
Because it was not disclosed in time and they didn't have enough time to look at it.

[00:04:42] Speaker 01:
And you should have disclosed it sooner.

[00:04:44] Speaker 01:
That's a discovery dispute.

[00:04:47] Speaker 01:
That's a fight over whether that discovery should have been there first or not.

[00:04:52] Speaker 01:
So that's why I don't really think it's inextricably intertwined.

[00:04:58] Speaker 01:
I think it has to do, you've got to make it meaningful review of the order properly before us.

[00:05:04] Speaker 01:
And I want to hear your best argument about that.

[00:05:07] Speaker 02:
This is the sole evidence offered by the plaintiffs to contradict the testimony of the officers.

[00:05:15] Speaker 01:
There's no other evidence.

[00:05:17] Speaker 02:
Basically not.

[00:05:19] Speaker 02:
That's what the court relied on.

[00:05:21] Speaker 02:
That's what, if you review their appellee's brief, they rely on.

[00:05:26] Speaker 00:
This is not... Well, part of the reason there's no other evidence is because the... or the reason there's no other evidence is because the plaintiff couldn't testify because of the condition he was in at the end of this episode.

[00:05:40] Speaker 00:
Well... So he couldn't get his story.

[00:05:42] Speaker 00:
And our case law says that when that's the case, we're particularly forgiving as to other evidence.

[00:05:48] Speaker 02:
That is an option that a court can exercise.

[00:05:52] Speaker 02:
This court didn't, I mean the lower court didn't, it found that this evidence was properly before it and ruled based on that evidence.

[00:06:00] Speaker 02:
It didn't say the only evidence in front of me is the officer's testimony and I am going to decline to take it at full face value because it's the only evidence there.

[00:06:13] Speaker 02:
That's a different issue.

[00:06:15] Speaker 02:
That's if the court

[00:06:18] Speaker 02:
had excluded the Brown Declaration and still denied the motion for summary judgment on those grounds, then we'd be arguing that.

[00:06:26] Speaker 02:
But that's not what happened here.

[00:06:27] Speaker 03:
Well, actually, suppose that there were no Brown Declaration.

[00:06:31] Speaker 03:
Yes.

[00:06:32] Speaker 03:
And the district court had denied summary judgment.

[00:06:36] Speaker 03:
And in this hypothetical order, it says, I think there's a dispute of fact for all of the reasons that are in the Brown Declaration, even though it doesn't exist in this hypothetical.

[00:06:48] Speaker 03:
So that order would clearly be wrong, right, because there would be no evidentiary basis for it to say all those things.

[00:06:54] Speaker 03:
But we couldn't review that, right, because Johnson against Jones, you know, there would be a lack of evidentiary sufficiency to survive summary judgment, but Johnson against Jones says we can't review that, right.

[00:07:06] Speaker 03:
So it seems very curious that we do get to review, you know, the sort

[00:07:14] Speaker 03:
subsidiary question of whether it's appropriate to look at the Brown Declaration when it does exist.

[00:07:19] Speaker 02:
Does Johnson really go that far to say that if there's literally no evidence to support what the trial court says is the basis for genuine dispute of fact that that's unreviewable?

[00:07:32] Speaker 00:
Well, we would have to look at the evidence favoring the plaintiff, and if there was no evidence favoring the plaintiff, then in fact in the record, then it seems to me that we would have jurisdiction to sign that.

[00:07:44] Speaker 01:
I'm not sure that it would be unreviewable anytime, but it wouldn't be reviewable for appellate jurisdiction of a qualified immunity situation.

[00:07:55] Speaker 01:
I mean we've got to have something in the qualified immunity situation that we can measure the plaintiff's allegations in besides a district court judgment which is not there.

[00:08:10] Speaker 01:
We've got to be able to measure what is his testimony against the law and if he has no testimony we wouldn't be able to have that on appellate jurisdiction.

[00:08:20] Speaker 02:
I think it's not just the plaintiffs

[00:08:23] Speaker 02:
testimony.

[00:08:24] Speaker 02:
It's the totality of the evidence that's presented on the issue.

[00:08:27] Speaker 01:
But you said there's no other evidence.

[00:08:29] Speaker 01:
So that's why I'm getting on the plaintiffs.

[00:08:31] Speaker 02:
Well, there's no other evidence from the plaintiff.

[00:08:33] Speaker 02:
There was plenty of evidence.

[00:08:33] Speaker 01:
Is there any other evidence you'd have?

[00:08:35] Speaker 01:
If you can't get Brown in, is there any other evidence you'd have?

[00:08:38] Speaker 00:
He doesn't want Brown in.

[00:08:39] Speaker 00:
He wants Brown out.

[00:08:41] Speaker 00:
Yeah.

[00:08:41] Speaker 02:
All of the evidence that we use to support our motion, multiple deposition transcripts from the officers, there's plenty of evidence.

[00:08:51] Speaker 00:
that we offered as to why... But there's no evidence from anybody other than the officers, right?

[00:08:57] Speaker 00:
There are all kinds of people around, but there's no evidence from anybody but the officers.

[00:09:01] Speaker 02:
Correct.

[00:09:01] Speaker 02:
And that goes on both sides, that literally while there's... But they did find one person who was around who says he saw it, and they have a declaration from him.

[00:09:11] Speaker 02:
Right.

[00:09:11] Speaker 02:
And our position is that

[00:09:14] Speaker 02:
under the circumstances it was inappropriate.

[00:09:16] Speaker 00:
But aside from the question of whether we reach it, isn't this a classic abuse of discretion dispute which you probably can't win an appeal anyway?

[00:09:30] Speaker 02:
I would disagree because of the way the court ruled.

[00:09:32] Speaker 02:
What the court's ruling was in the order, and I'm quoting, it appears to the court that the plaintiffs timely disclosed Brown as a potential witness.

[00:09:42] Speaker 02:
Our contention is

[00:09:44] Speaker 02:
that the evidence in no way, shape, or form supports the idea that there was a timely disclosure, and I could go through that.

[00:09:52] Speaker 02:
But that is not a situation where the court found the disclosure may not have been timely, but I'm going to exercise my discretion and not exclude it, or say you have to have a deposition, or various other options.

[00:10:08] Speaker 02:
that are available to a district court.

[00:10:19] Speaker 02:
The reason why this is so harmful to the defendants is that if there had been a proper disclosure, they would have immediately taken the deposition of Mr. Brown.

[00:10:32] Speaker 02:
And so that would have been the evidence that would have been before the court.

[00:10:36] Speaker 00:
But what the district court said was this declaration still would have been before the court, and it still would have been enough evidence for me to deny it.

[00:10:45] Speaker 02:
And our position is the declaration never would have existed.

[00:10:48] Speaker 02:
because under the sham affidavit declaration, if they were trying to offer after deposition testimony, a declaration that said, no, no, no, that's not really what happened.

[00:10:57] Speaker 02:
This is what happened.

[00:10:58] Speaker 02:
That would have been excluded.

[00:10:59] Speaker 02:
I mean, that's just fundamental.

[00:11:01] Speaker 02:
We would have had a deposition that would have gone into the issues of his competency, his ability to see what he saw, whether or not he actually would have testified to any of this evidence.

[00:11:13] Speaker 02:
That's what was lost by the failure of the plaintiff

[00:11:17] Speaker 00:
Well, all right, if you go back, have you taken that deposition?

[00:11:22] Speaker 02:
No.

[00:11:23] Speaker 02:
And there are two reasons for that, Your Honor.

[00:11:25] Speaker 02:
One, none of that could have been before this court.

[00:11:29] Speaker 00:
But it could be, you could file another summary judgment motion.

[00:11:33] Speaker 02:
I'm not sure how we could... Why not?

[00:11:37] Speaker 02:
There's this ruling, I mean, you know, and the judge made very clear that he wasn't... Certainly been done before.

[00:11:43] Speaker 02:
I'm sorry.

[00:11:44] Speaker 00:
Certainly been done before.

[00:11:46] Speaker 02:
Yes, but this would still be set up against the declaration, which the district judges made clear.

[00:11:53] Speaker 02:
He would not find anything in the deposition to overturn.

[00:12:01] Speaker 02:
Further.

[00:12:02] Speaker 00:
I just want to pin something down.

[00:12:05] Speaker 00:
I take you to be agreeing that with the Brown deposition, the plaintiff has to prevail at this point.

[00:12:13] Speaker 02:
Mean given given what's in there.

[00:12:14] Speaker 02:
It certainly creates genuine to show fact.

[00:12:16] Speaker 01:
I mean, that's important fight that one It worries me that with the district court saying I'm not going to help you on the motion to strike, but you can take the deposition and given that the only way to

[00:12:37] Speaker 01:
to undo that affidavit is what you're arguing is to take that deposition that you didn't take it.

[00:12:46] Speaker 02:
Well, there are two responses there.

[00:12:48] Speaker 01:
I mean, the problem comes in that you've got to go against the support for abuse of discretion.

[00:12:56] Speaker 01:
You might argue he had abusive discretion by saying, I don't care whether you take it, it's not going to make any difference or not.

[00:13:02] Speaker 01:
But if you'd have taken it and come in with all the things you're talking about, I'm not sure the district court would have been able to even deal with that as well.

[00:13:11] Speaker 01:
So again, that's my worry here, that it seems to me you've got to say, you've got to make some arguments to make it so that I can look at this argument.

[00:13:25] Speaker 02:
Our position is that what should, if this case went back down to the district court, is that we would take the deposition, the declaration would be stricken for all purposes.

[00:13:40] Speaker 02:
It would cease to exist.

[00:13:42] Speaker 02:
And whatever evidence Mr. Brown would testify to in the deposition, that's what we do.

[00:13:48] Speaker 00:
What is your conceptual argument about why this is properly before us?

[00:13:54] Speaker 00:
In terms of, given both the Johnson versus Jones problem and the pending jurisdiction, so to speak, problem, how do we get to your issue?

[00:14:12] Speaker 00:
What is your conceptual argument?

[00:14:14] Speaker 02:
Whether or not this evidence was properly before the court on this specific motion is inextricably tied to whether or not

[00:14:24] Speaker 02:
the motion was properly denied.

[00:14:27] Speaker 02:
You can't rule on or review the underlying motion.

[00:14:32] Speaker 00:
But don't, again, don't we then completely undermine Johnson v. Jones because we have to, in every case people come in and start quibbling about the evidence, which is what they were trying to avoid?

[00:14:48] Speaker 02:
We're not asking

[00:14:49] Speaker 02:
The challenge here is not that the contents of the declaration... Somebody comes in and says, this is hearsay.

[00:14:58] Speaker 00:
It never should have been admitted.

[00:14:59] Speaker 00:
Then what?

[00:15:01] Speaker 02:
That goes to a different issue, which is that if it's capable of being submitted to the court... Okay, but we still have an argument about it.

[00:15:09] Speaker 00:
It's not capable of being submitted.

[00:15:10] Speaker 00:
The person's dead.

[00:15:12] Speaker 00:
It's really hearsay.

[00:15:13] Speaker 00:
It can't come in.

[00:15:14] Speaker 00:
It shouldn't be in the record.

[00:15:19] Speaker 02:
I don't think this is the sort of thing that was intended by Johnson.

[00:15:26] Speaker 02:
I can't give you a chapter.

[00:15:28] Speaker 00:
Except that you can't find a case.

[00:15:29] Speaker 00:
You don't have a single case where it's ever happened.

[00:15:32] Speaker 02:
I think it's just fundamental that objections to evidence are part and parcel of the summary judgment process.

[00:15:39] Speaker 00:
Exactly.

[00:15:39] Speaker 00:
And that's why it's not before us.

[00:15:42] Speaker 02:
Well, except that whether or not qualified immunity was properly denied is inextricably tied with the summary judgment motion.

[00:15:50] Speaker 02:
If there was something fundamentally flawed about the motion that prevented a proper evaluation of the qualified immunity issue, we can't get review of that later on.

[00:16:06] Speaker 02:
Qualified immunity in and of itself may be an issue that can be addressed in a different way.

[00:16:11] Speaker 02:
But the question of whether or not qualified immunity.

[00:16:14] Speaker 00:
You have to start from the premise that this is a narrow exception to the finality rule, right?

[00:16:21] Speaker 00:
A very narrow exception.

[00:16:24] Speaker 00:
And the question is, how narrow is it really?

[00:16:27] Speaker 00:
And is there any authority for this notion that it reaches evidentiary questions?

[00:16:33] Speaker 00:
I know you're saying it's not an evidentiary question, but it is an evidentiary question.

[00:16:36] Speaker 02:
I think part of this goes to what qualified immunity exists.

[00:16:40] Speaker 02:
It's sort of trite, but it is an immunity from trial.

[00:16:44] Speaker 02:
And if we're saying that an attempt to bring it up in whatever structure, whether it's a non-evidentiary motion, the summary judgment motion, that it's impossible to address

[00:17:03] Speaker 02:
whether or not there is a flaw in the handling of that motion that is thereby preventing a defendant from getting the benefit of the immunity that they might be entitled to.

[00:17:14] Speaker 02:
I think that is reviewable.

[00:17:19] Speaker 03:
But it's a flaw not in the assessment of whether

[00:17:26] Speaker 03:
The facts that can be shown establish a violation of a clearly established, right?

[00:17:32] Speaker 03:
It's not it is it is a flaw in the assessment of which facts can be shown right correct, okay?

[00:17:40] Speaker 03:
We've used up All of your time and then some yeah, but we will We will give you two minutes for a bottle appreciate that.

[00:17:48] Speaker 03:
Thank you your honor.

[00:17:49] Speaker 03:
Thank you and We hear from mr.. Scott

[00:17:58] Speaker 04:
Good morning, Your Honors.

[00:17:59] Speaker 04:
May it please the Court, Tim Scott for the afternoon, Mr. Rios.

[00:18:04] Speaker 04:
In our view, this is a classic Johnson v. Jones case.

[00:18:08] Speaker 04:
This is a case that is lacking jurisdiction because there are factual questions that predominate.

[00:18:15] Speaker 04:
And it was, in fact, an evidentiary and specifically a discovery rule that is sort of the underpinning of the... Why isn't it

[00:18:25] Speaker 01:
Necessary, why isn't the review of this particular affidavit necessary to ensure a meaningful review of the order properly before us?

[00:18:38] Speaker 04:
The problem with framing it that way is that it would swallow the rule.

[00:18:42] Speaker 01:
What do you mean it'd swallow the rule?

[00:18:44] Speaker 01:
We've got all kinds of cases that say what that means.

[00:18:47] Speaker 01:
Well, we got Palouse.

[00:18:50] Speaker 01:
It says it requires that the penitentiary's decision have much more than a tangential relationship to the decision properly before us.

[00:19:01] Speaker 01:
That seemed to meet.

[00:19:03] Speaker 01:
We've got KW XREL DW versus Armstrong, which says

[00:19:09] Speaker 01:
Pursuant to our narrow construction of this review, we may exercise to consider issues that call into question the district court's authority to rule on a party's motion for preliminary injunction.

[00:19:25] Speaker 01:
But then he says, well, we have declined to exercise where it's not a logical predicate.

[00:19:31] Speaker 01:
to the issues properly raised on appeal and did not implicate the very power of the district court.

[00:19:39] Speaker 01:
Well, this is a logical predicate.

[00:19:42] Speaker 01:
I mean, this is the only evidence that you have, so says your opposition.

[00:19:47] Speaker 04:
Well, I disagree with that last point.

[00:19:49] Speaker 01:
I think we would win.

[00:19:50] Speaker 01:
Well, then what is the evidence that I would have in front of me now without the Brown affidavit, which would suggest you shouldn't win or that you should win the collateral order doctrine qualified immunity?

[00:20:10] Speaker 04:
Yes, Your Honor.

[00:20:12] Speaker 04:
Without Brown.

[00:20:15] Speaker 04:
Without Brown, this court is still lacking jurisdiction.

[00:20:18] Speaker 04:
And the reasons for that is that there are still facts in the record.

[00:20:22] Speaker 01:
What?

[00:20:23] Speaker 04:
Including that.

[00:20:24] Speaker 00:
Well, we're not lacking jurisdiction.

[00:20:26] Speaker 00:
You would win on the qualified immunity.

[00:20:28] Speaker 01:
We're not lacking jurisdiction.

[00:20:29] Speaker 01:
We just don't give them qualified immunity.

[00:20:31] Speaker 01:
But keep going.

[00:20:32] Speaker 01:
Your argument is the same.

[00:20:34] Speaker 01:
What are the facts?

[00:20:35] Speaker 04:
I would say either, that it would be no jurisdiction and we would win on the merits.

[00:20:38] Speaker 04:
But the facts are.

[00:20:40] Speaker 04:
an unarmed person that the police knew was unarmed.

[00:20:44] Speaker 04:
And then the district court said that there is some dispute about how early they knew that he was unarmed.

[00:20:50] Speaker 04:
For certain, the video that does exist contradicts in some respects the police officer's version of events.

[00:20:57] Speaker 04:
Specifically, the officer said that he delivered these many punches because of a headbutt.

[00:21:03] Speaker 04:
And in looking at the video, there was no headbutt.

[00:21:06] Speaker 04:
It cleanly impeached that officer as to the purported justification for the beating.

[00:21:12] Speaker 04:
That video also showed Mr. Rio saying, I ain't resisting.

[00:21:16] Speaker 04:
And it showed some other bystanders in Spain.

[00:21:19] Speaker 00:
I ain't fighting, I think is what he said.

[00:21:21] Speaker 04:
I'm sorry.

[00:21:21] Speaker 04:
I ain't fighting.

[00:21:22] Speaker 04:
Correct.

[00:21:22] Speaker 04:
I ain't fighting.

[00:21:23] Speaker 04:
That was a correct quote.

[00:21:24] Speaker 00:
And you can't hear that.

[00:21:25] Speaker 00:
I don't know.

[00:21:25] Speaker 00:
I couldn't really see anything.

[00:21:27] Speaker 00:
I don't know if there was a headbutt or not a headbutt.

[00:21:30] Speaker 04:
So it's partially obfuscated, but in plaintiff's view, it does impeach the notion of any sort of a headbutt, and it also impeaches the order of events and the necessity for the immediacy of the force.

[00:21:46] Speaker 04:
The officers also failed to tell medics at the scene about the dozens of blows that they had administered, as well as the tazings.

[00:21:56] Speaker 04:
That smacks a little of consciousness of guilt, and I think can be considered

[00:22:00] Speaker 04:
as to whether this was necessary and whether they really did have Mr. Rios's best interests in mind in summoning care and explaining everything to the officers.

[00:22:11] Speaker 04:
Just the sheer number of beatings, dozens of beatings that the officers themselves admit to, combined with the tazings, is a significant and substantial use of force

[00:22:23] Speaker 04:
That's what the district court found.

[00:22:25] Speaker 04:
And under Graham, that can be compared to a minimal justification for it.

[00:22:30] Speaker 04:
So even setting aside Brown, the district court found that the beings, the tazings, all of those things could be a substantial Graham use of force with only a minimal justification.

[00:22:44] Speaker 04:
And again, that's entirely outside of the Brown universe.

[00:22:49] Speaker 01:
Which would then mean?

[00:22:51] Speaker 01:
that it isn't clearly meaningful to look at that discovery order.

[00:22:58] Speaker 04:
Right.

[00:22:58] Speaker 04:
Right.

[00:22:59] Speaker 04:
So I think you could say it's not material.

[00:23:01] Speaker 04:
It's not meaningful.

[00:23:02] Speaker 04:
We don't even have to reach Brown.

[00:23:04] Speaker 04:
That's one way to get there.

[00:23:06] Speaker 04:
But I would certainly say that saying that we can reach Brown

[00:23:13] Speaker 04:
would be a first opinion of that kind.

[00:23:15] Speaker 04:
I thought it was telling that my colleague couldn't think of a case or come up with a case that did what they're asking this court to do.

[00:23:24] Speaker 04:
And that's because there isn't one, at least that we have found, and for good reason.

[00:23:29] Speaker 04:
Perhaps it was a little cheeky.

[00:23:30] Speaker 04:
I didn't mean to be when I said this court has plenty of its own work, I'm sure, without opening what really would be flood dates to the interlocutory appeal of every discovery issue, every evidentiary ruling.

[00:23:43] Speaker 04:
framing the Brown Declaration as a material issue that needs to be resolved for jurisdiction.

[00:23:51] Speaker 04:
It's clever and I understand why my counterpart is doing it.

[00:23:55] Speaker 04:
I would do the same in his shoes.

[00:23:57] Speaker 04:
But it really was a rule 26 call that the district court made.

[00:24:01] Speaker 04:
And the district court did give them the opportunity to take the deposition if they wanted it.

[00:24:06] Speaker 00:
But conceptually, you would, would you agree that the way we look at this is parallel to how we look at,

[00:24:18] Speaker 00:
say whether other pendent claims on the collateral order appeal or is this something else?

[00:24:29] Speaker 00:
In other words the way Judge Smith has been asking the questions it's based on the notion that we apply this

[00:24:37] Speaker 00:
I have a principle, by the way, which is at any time inextricably intertwined appears anywhere I cross it out.

[00:24:42] Speaker 00:
It's a ridiculous phrase.

[00:24:43] Speaker 00:
It's way overused.

[00:24:44] Speaker 00:
It doesn't mean anything, but it's in the case law here.

[00:24:47] Speaker 00:
So the question is, are we looking at this as a question of whether it's inextricably intertwined or are we instead stepping back and saying, you know, what is the Johnson versus Jones rule and what does it apply to?

[00:25:00] Speaker 04:
I think it's the latter.

[00:25:02] Speaker 04:
Aside from not having to say inextricably intertwined or engage with that gauzy doctrine, I also think there's just a more fundamental legal question of what's appealable or not.

[00:25:14] Speaker 04:
And I think Johnson really is on all fours.

[00:25:17] Speaker 04:
I think that

[00:25:18] Speaker 04:
If our case isn't a Johnson case, it's difficult to imagine one that would be, or it's difficult to see how this case could be one that could draw a usable line to avoid the floodgates problem.

[00:25:33] Speaker 03:
I suppose the line that they would draw is that Johnson is just about

[00:25:37] Speaker 03:
the pure evaluation of the evidentiary record that you have, an assessment of whether it creates a genuine factual dispute, and the rule that they're asking for is limited to some sort of discrete legal ruling about what is in the evidentiary record.

[00:25:58] Speaker 03:
So what's wrong with that?

[00:26:02] Speaker 03:
And when you conceptualize it that way, it seems perhaps less obviously covered by Johnson.

[00:26:08] Speaker 04:
I don't disagree that when we use the words that way and frame it that way, you can make it sound like this is different than Johnson.

[00:26:19] Speaker 04:
But then I think the concern with that is that virtually every case where a district court has said, yes, I am going to consider this or no, I'm not going to consider this.

[00:26:28] Speaker 04:
And here's the remedy that I fashioned to address your concerns, defendant.

[00:26:33] Speaker 04:
It's really difficult, at least for me, to imagine how any district court decision like that couldn't be fashioned into this sort of new, not Johnson, but something else interlocutory appeal.

[00:26:46] Speaker 01:
But this is a little bit different than any evidentiary idea that we've got that you're trying to phrase.

[00:26:52] Speaker 01:
This is a case where

[00:26:56] Speaker 01:
person who's bringing the suit can't testify at all.

[00:27:04] Speaker 01:
If he could testify at all, that would be a lot easier decision.

[00:27:09] Speaker 01:
And I'm surprised at your argument, because he can't testify at all.

[00:27:14] Speaker 01:
And yet, you're saying we shouldn't look at whether this other guy who can't testify shouldn't be able to?

[00:27:26] Speaker 04:
I think the fact that our plaintiff cannot testify militates in favor of the appellees here.

[00:27:33] Speaker 04:
As Judge Berzon pointed out, there is a very strong line of authority that says, essentially, and I'm paraphrasing, that we take with a grain of salt or we more closely scrutinize the officer's version of events when they have left the plaintiff unable to provide a contrary version of events.

[00:27:50] Speaker 04:
whether that's because a person's dead or because, like in this case, it's because he's in a vegetative state.

[00:27:57] Speaker 04:
I think that, if anything, that just leads us to provide more scrutiny to the appellants or the officers.

[00:28:08] Speaker 00:
to the question of whether we reach an evidentiary question.

[00:28:13] Speaker 04:
Perhaps were it not for all of the other facts in the record that I tried to lay out for why we would win in a non-Brown universe as well.

[00:28:21] Speaker 04:
So I think because of the facts in this case that the district court did find, we don't have to address Brown if the court would rather not.

[00:28:32] Speaker 04:
And with that, I'm prepared to submit unless the court has further questions.

[00:28:36] Speaker 03:
It appears not.

[00:28:37] Speaker 03:
Thank you.

[00:28:37] Speaker 03:
Thank you, Your Honors.

[00:28:41] Speaker 03:
So rebuttal for two minutes.

[00:28:43] Speaker 02:
Thank you, Your Honors.

[00:28:47] Speaker 02:
I think part of the problem here is that we're neglecting that Rule 37 explicitly says that evidence that

[00:28:58] Speaker 02:
is a violation of rule 26, cannot be used on a motion at a hearing or at a trial.

[00:29:05] Speaker 02:
So it explicitly involves circumstances such as this, a motion.

[00:29:13] Speaker 00:
None of this- But their contention, as I understand it, was that it didn't violate rule 26 because they didn't have it earlier.

[00:29:19] Speaker 00:
And the district courts seem to agree with that.

[00:29:22] Speaker 00:
So basically, that's a factual question, right?

[00:29:28] Speaker 02:
theoretically could be, but they're literally, our position is, no evidence to support the court's conclusion that it was timely provided.

[00:29:36] Speaker 00:
Their argument is... But that's a factual question.

[00:29:38] Speaker 00:
So that's exactly what we're not supposed to be doing under Johnson.

[00:29:42] Speaker 02:
Well, the court can always weigh whether or not there is any evidence to support a finding by the trial court.

[00:29:51] Speaker 02:
It's not a matter of weighing the evidence.

[00:29:54] Speaker 02:
There has to be something.

[00:29:58] Speaker 01:
On pellet jurisdiction for qualified immunity, you're making that argument.

[00:30:08] Speaker 01:
I mean this is a qualified immunity case.

[00:30:12] Speaker 01:
We wouldn't be here if we weren't trying to get into this before the officers had a trial.

[00:30:19] Speaker 01:
Right.

[00:30:19] Speaker 01:
And so therefore we don't look at evidence.

[00:30:22] Speaker 01:
I mean this Johnson idea that Judge Berzon keeps bringing up to you is because that's absolutely the law.

[00:30:32] Speaker 01:
And you're asking us

[00:30:34] Speaker 01:
I'm trying to figure out what rule I would use to get around it, and that's why I suggested this one.

[00:30:42] Speaker 02:
Well, the issue, I mean, part of this is if this court were to reverse, we're sort of making the assumption that

[00:30:56] Speaker 02:
the plaintiffs would be deprived of any ability to use Mr. Brown as a witness.

[00:31:02] Speaker 02:
What we're saying is that the introduction of this declaration at this motion was improper because of the rule violation.

[00:31:13] Speaker 02:
And the court didn't make a decision about how to deal with the violation because they didn't find one in the first place.

[00:31:22] Speaker 02:
And I can address that.

[00:31:24] Speaker 02:
the issue of how to deal with it otherwise, what I would suggest would be

[00:31:30] Speaker 02:
gets sent back down, the declaration gets struck, and we take his deposition, and that becomes the evidence for Mr. Brown.

[00:31:36] Speaker 02:
We're not saying Mr. Brown is as if he doesn't exist at all.

[00:31:41] Speaker 03:
I thought you were asking us to reverse the denial of summary judgment and say that summary judgment should have been granted to end the case, right?

[00:31:48] Speaker 02:
That's certainly our preferred position, but I'm trying to deal with the court's concerns, as has been repeatedly expressed about the fact

[00:31:58] Speaker 02:
The plaintiff cannot testify.

[00:32:01] Speaker 02:
And so there seems to be this concern that the relief that were requested is extreme under this circumstance.

[00:32:12] Speaker 02:
We don't necessarily agree, we think, under the circumstances.

[00:32:14] Speaker 02:
It's perfectly appropriate to just strike the Brown Declaration and rule on the motion.

[00:32:18] Speaker 02:
If the court is not inclined to do that, it does have another option, which does not harm the defendants while it attempts to help the plaintiffs.

[00:32:28] Speaker 02:
The point is, if there is a violation of Rule 26, the starting point from Rule 37 is the evidence is supposed to be excluded.

[00:32:39] Speaker 02:
The district court can then say, but under the circumstances, we're going to ameliorate that.

[00:32:45] Speaker 02:
But it then is balancing what's the best way to deal with that.

[00:32:48] Speaker 00:
If you had taken the deposition the next day or a week later and gotten material that you thought

[00:32:56] Speaker 00:
was helpful.

[00:32:58] Speaker 00:
Could you have moved to reconsider the summary judgment motion?

[00:33:02] Speaker 00:
But you didn't do it.

[00:33:04] Speaker 02:
But the judge had made it literally part of his order that nothing that would have come out of the deposition would have made any difference to him.

[00:33:15] Speaker 02:
At that point

[00:33:16] Speaker 02:
Asking us to take a deposition that literally would be ignored doesn't make sense Okay, and and Perhaps that would have been better, but I also don't know how we would have brought it before the court if the judge simply said no We're not gonna consider and you put it in a motion to reconsider and then you bring it before us As far as a motion to reconsider it's pretty easy We didn't do that and I

[00:33:47] Speaker 00:
can't undo the past, but I don't think that... I mean, for all any of us know, Brown would have been extremely persuasive in supporting what he said.

[00:33:59] Speaker 02:
Sure.

[00:33:59] Speaker 02:
And on the other hand, he might have completely refuted everything.

[00:34:02] Speaker 02:
But the district judge said he didn't care.

[00:34:05] Speaker 02:
He literally said, even if he recanted, it wouldn't make any difference to him, because then he found it to be a genuine dispute of fact, which is why I brought up the Shameth David issue earlier,

[00:34:17] Speaker 02:
If there had been a disclosure, our contention is we would have taken his deposition.

[00:34:23] Speaker 02:
There's a line in the plaintiff's brief where they say, I apologize.

[00:34:43] Speaker 02:
that they knew from the moment that they interviewed Mr. Brown in mid-May they were going to rely on his testimony.

[00:34:52] Speaker 02:
We did not find out what Mr. Brown was going to say until two and a half months later when we got the declaration.

[00:35:00] Speaker 03:
That's I think I think we I think we have your argument No further questions.

[00:35:06] Speaker 03:
Thank you very much Thank you, and we thank both counsel for their helpful arguments in this case and the case is submitted