[00:00:00] Speaker 05:
The first case set for argument is Sylvester versus Sacramento County Sheriff, case number 24-3390.

[00:00:05] Speaker 05:
And I understand, let's see, the appellees will be splitting time.

[00:00:13] Speaker 05:
But go ahead, Mr. Frank, with your argument.

[00:00:19] Speaker 01:
May it please the court, my name is Herman Frank.

[00:00:22] Speaker 01:
I am the attorney for the plaintiffs who are the biological parents, the mother and father,

[00:00:29] Speaker 01:
of a person that was lost his life in the hands of the county Sacramento County Sheriff.

[00:00:39] Speaker 01:
The cause of action is a federal civil rights action under 42 USC section 1983.

[00:00:47] Speaker 01:
The issue that apparently is here and I am a little bit surprised at this issue because

[00:00:56] Speaker 01:
I was pretty convinced that this is not an issue in the law, but there is apparently a question of whether you can bring a wrongful death action within a federal civil rights case.

[00:01:12] Speaker 05:
The trial court- Can we back up because, I mean, is that distinguished from the substantive due process claim?

[00:01:20] Speaker 05:
You think that wrongful death claim

[00:01:24] Speaker 05:
There's two separate questions, whether you can bring a substantive due process claim under 1983 and whether you can bring a wrongful death claim under 1983.

[00:01:34] Speaker 01:
I think it's mainly an issue, well, first of all, the wrongful death part, we allege as a Fourth Amendment and a seizure, unlawful seizure, and we allege it also, you're correct, as a substantive due process, you know, literally a taking of life, you know, life, liberty, the pursuit of happiness.

[00:01:56] Speaker 02:
But you don't represent the estate.

[00:01:58] Speaker 02:
correct and so this is this is an assertion of parents rights which have long been recognized in the Ninth Circuit but not anyplace else that we know of correct okay but wait back up because you said fourth amendment what does

[00:02:18] Speaker 05:
What is your Fourth Amendment claim?

[00:02:20] Speaker 05:
Well, he was physically seized himself.

[00:02:25] Speaker 05:
Oh, but it's still on behalf of the... That's interesting.

[00:02:30] Speaker 05:
I didn't appreciate that because you're bringing... But do the parents have standing to bring a Fourth Amendment claim?

[00:02:37] Speaker 01:
Well, one of the issues I dealt with to the trial court was the trial court was saying

[00:02:44] Speaker 01:
the right

[00:03:03] Speaker 01:
The underlying wrongful death needs to involve a deprivation of federally protected rights.

[00:03:10] Speaker 05:
I don't understand how these are distinct, because to me, you can bring a wrongful death claim, you just bring it as a, I mean, it's not a wrongful death claim, it's a 1983 claim for violation of constitutional rights, which is, as you've pledded, is a substantive due process claim.

[00:03:27] Speaker 05:
So I don't really understand why wrongful death is being

[00:03:31] Speaker 05:
I mean, if he hadn't have died, you would have a claim, but because he died, you don't have a claim?

[00:03:36] Speaker 05:
I don't understand the distinction.

[00:03:39] Speaker 01:
The very statement you just made is exactly why the cases have developed to permit a wrongful death claim.

[00:03:47] Speaker 01:
And they do call it wrongful death.

[00:03:50] Speaker 05:
Yeah, I don't understand that, because it's not a wrongful death claim.

[00:03:53] Speaker 05:
It's a 1983 claim for violation of substantive due process rights.

[00:03:58] Speaker 01:
Yeah, and Your Honor, I can tell you this.

[00:04:01] Speaker 01:
If there's anything we could get out of this case, it would be a good clarification of what is allowed and how it is allowed.

[00:04:10] Speaker 01:
Because I can tell you, even the district court judge was seemingly not quite following it.

[00:04:19] Speaker 01:
He cited a New Mexico district court case for the proposition that

[00:04:24] Speaker 01:
whatever wrongdoing occurred needs to be directed at the plaintiff.

[00:04:30] Speaker 05:
And in our case, you know, that's accurate.

[00:04:35] Speaker 05:
And that's why I wanted to come back to your Fourth Amendment claim, because I had not appreciated that in the case.

[00:04:40] Speaker 05:
I don't understand how your clients have a Fourth Amendment claim.

[00:04:45] Speaker 01:
Well, my claim is this, it's not that they have a Fourth Amendment claim, it's that the underlying wrongful death, in my view of the law, I have to show that the wrongful death itself was a product of a violation of federally protected rights.

[00:05:03] Speaker 04:
If you have that is correctly and so I was that's why I got into fourth amendment Well counsel in footnote three of the district court's opinion It says that you then clarify that your claim is only brought under the substantive due process component of the due process Clause and I don't think you appealed that so if I think as far as I'm concerned it any fourth amendment claim is waived and

[00:05:28] Speaker 02:
There is no Fourth Amendment claim here.

[00:05:31] Speaker 02:
The way this works, counsel, I'm going to try to straighten this out a little bit.

[00:05:37] Speaker 02:
If the death were accidental, there would be no violation of federal constitutional rights.

[00:05:44] Speaker 02:
You would have no claim on behalf of the parents.

[00:05:48] Speaker 02:
If you somehow can show this death was intentionally and wrongfully caused by police officers,

[00:05:55] Speaker 02:
That would have violated Ryan's constitutional rights.

[00:06:00] Speaker 02:
His state would have claims under the Fourth Amendment, at least, and perhaps others.

[00:06:07] Speaker 02:
The parents' substantive due process right that is recognized in Ninth Circuit precedent depends upon there having been a violation of his constitutional rights.

[00:06:17] Speaker 02:
But that's the only claim that is in front of us right now, right?

[00:06:21] Speaker 02:
The substantive due process claim of the parents.

[00:06:24] Speaker 02:
Is that correct?

[00:06:27] Speaker 01:
That is correct.

[00:06:28] Speaker 01:
And the only reason, by the way, your recitation that you just gave us, I think that is perfectly what the rule is.

[00:06:37] Speaker 01:
And the only point I'm making, and I agree with the justice when he says you didn't appeal the Fourth Amendment issue, I don't, I'm sure he's correct on that.

[00:06:48] Speaker 01:
I'm only asserting Fourth Amendment to show that the underlying death

[00:06:53] Speaker 02:
That is causing confusion, but I think we can get through that.

[00:06:57] Speaker 02:
Let me ask you though, Mr. Frank, we're here on a 12b6 dismissal, and we have to take at face value your factual allegations.

[00:07:09] Speaker 02:
But obviously, there's been a lot of information exchanged.

[00:07:12] Speaker 02:
There was an investigation.

[00:07:14] Speaker 02:
Can you explain to me if and when you get to summary judgment how the location of Ryan's cell phone and the nurse's comment to the family will get you past a summary judgment motion if we remand this as to whether there was a wrongful killing here?

[00:07:37] Speaker 01:
Yes, let me explain that.

[00:07:39] Speaker 01:
And it's more than just the phone in the field.

[00:07:42] Speaker 01:
It's more than just that and what the nurse said.

[00:07:47] Speaker 01:
Some of the other items are that when the sheriff deputy picked him up, he was picked up for a parole violation for being too close to his ex, and she called it in.

[00:07:58] Speaker 01:
So the sheriff deputies, they picked him up.

[00:08:00] Speaker 01:
They actually drove the wrong way to go to the jail.

[00:08:05] Speaker 01:
They took on Watt Avenue, they took a right-hand turn to take him left, and they ended up

[00:08:12] Speaker 01:
in this area where there's some kind of like a laundromat or a dry cleaner place, and then there's a field behind that.

[00:08:19] Speaker 01:
So they shouldn't have been in that territory at all.

[00:08:24] Speaker 01:
So the other item is that when he was in the ICU, one of his relatives was looking at his dead body and noticed something about his forehead

[00:08:41] Speaker 01:
And when she went to adjust his forehead, his entire scalp kind of came off.

[00:08:48] Speaker 01:
And it was a very weird sight.

[00:08:52] Speaker 01:
But that is another event that is consistent with if he were to have been

[00:08:59] Speaker 01:
grazed by a baton at the top of his head, it might create that kind of wound.

[00:09:05] Speaker 01:
That would be something we would submit.

[00:09:08] Speaker 01:
So these are particulars that are in the complaint.

[00:09:13] Speaker 01:
Driving the wrong way.

[00:09:15] Speaker 04:
Can we consider the fragments, at least, of the radio transmissions at this stage?

[00:09:25] Speaker 01:
Yeah.

[00:09:28] Speaker 01:
All I'm saying is they drove the wrong way.

[00:09:31] Speaker 01:
I mean, the radio transmissions will no doubt be allowed into evidence.

[00:09:37] Speaker 04:
But yeah, I mean, the radio transmission show that he was kicking the windows out.

[00:09:42] Speaker 04:
He was partially out of the car, which all supports the government's theory that he's trying to get out and fell out.

[00:09:50] Speaker 01:
Well, or it's a lie.

[00:09:54] Speaker 04:
Right.

[00:09:54] Speaker 04:
That's what I'm wondering.

[00:09:55] Speaker 04:
I mean, can we credit the radio?

[00:09:58] Speaker 04:
Do you have the radio transmissions already?

[00:10:03] Speaker 01:
What I have are the investigative reports.

[00:10:05] Speaker 01:
And probably somewhere in there, I have an investigative report.

[00:10:12] Speaker 01:
And there was a kind of transcription document that transcribed.

[00:10:19] Speaker 01:
It was almost like a deposition of one of the deputies, the driver.

[00:10:23] Speaker 04:
So is your position that it's not part of the complaint yet, so we can't consider it a 12b6 motion dismissed?

[00:10:31] Speaker 01:
Right.

[00:10:32] Speaker 01:
The police reports, they say right on them, don't copy, don't put them in the public realm.

[00:10:38] Speaker 01:
So I did not put it in the public realm.

[00:10:41] Speaker 01:
I've actually been chastised for doing that in the past, so I learned my lesson.

[00:10:47] Speaker 01:
However, our position is this.

[00:10:50] Speaker 01:
This deceased is, and I don't mean to be critical of him, but he was an overweight drug addict.

[00:10:59] Speaker 01:
And it's a bit of a far-fetched, implausible idea that he, as a handcuffed individual and seat-belted in the back of a car, a deputy's car, could somehow undo himself, smash the window.

[00:11:15] Speaker 05:
I thought he wasn't seat-belted.

[00:11:17] Speaker 05:
I thought, actually,

[00:11:18] Speaker 02:
Officer was reprimanded for not seatbelting him well, there's an issue about that because Okay, sounds to me like we're getting into sort of jury sorts of arguments Could I ask you about one of the pleading questions on your monel claim?

[00:11:36] Speaker 02:
I'd like to understand what constitutional right you think your clients have to have the death of their son Investigated in a particular way so that seems to be the the crux of your monel claim and

[00:11:49] Speaker 01:
Yes, there are two aspects of it, but what you just said is correct.

[00:11:52] Speaker 01:
The other aspect is they have a policy where they simply will not allow you to have the investigative reports.

[00:12:00] Speaker 02:
So my client... How does that, sir, how does that violate the Constitution of the United States?

[00:12:08] Speaker 01:
It would be, I cite it as a procedural due process problem where he literally can't get to know the truth of what happened, whether he has a claim or not, whether there is evidence of foul play or not.

[00:12:24] Speaker 02:
Excuse me, counsel, but are you saying the United States Constitution gives citizens a right of access

[00:12:33] Speaker 02:
to police investigative documents because they have such a powerful interest in the case?

[00:12:41] Speaker 01:
Yes.

[00:12:42] Speaker 02:
Do you have any authority to support that assertion?

[00:12:45] Speaker 01:
I believe this would be a case of first impression on that.

[00:12:47] Speaker 02:
I believe that's correct.

[00:12:50] Speaker 01:
It is a reasonable rule though.

[00:12:53] Speaker 01:
How could a parent know what went down?

[00:12:56] Speaker 01:
I mean literally they don't even know the names of the people

[00:13:01] Speaker 02:
You know, but you brought student you got discovery and you now know those so okay Thank you that that answers my question, and I don't want to interfere with your rebuttal time I Would like two minutes.

[00:13:13] Speaker 01:
I'm down to two yeah right now the I would also like to point out the fact that they didn't even

[00:13:25] Speaker 01:
investigate it, you know, and talk to my clients and his family.

[00:13:30] Speaker 01:
Had they done so, they would have had all the information that's in the complaint.

[00:13:35] Speaker 01:
And they didn't do that.

[00:13:36] Speaker 01:
Okay.

[00:13:36] Speaker 01:
And I'm wondering why did why would they not do that?

[00:13:40] Speaker 05:
You want to reserve for rebuttal?

[00:13:42] Speaker 05:
Thank you.

[00:13:43] Speaker 05:
Yes.

[00:13:43] Speaker 05:
Okay.

[00:13:44] Speaker 05:
Thank you.

[00:13:44] Speaker 05:
All right.

[00:13:45] Speaker 05:
We'll hear from the appellees here.

[00:13:52] Speaker 05:
Well, let's get more specific.

[00:13:54] Speaker 05:
Mr. Paul, are you up first?

[00:13:58] Speaker 05:
Oh, you're here.

[00:13:58] Speaker 05:
I'm here.

[00:13:59] Speaker 03:
All right.

[00:14:01] Speaker 05:
So wait, but you're Mr. Egan.

[00:14:03] Speaker 03:
I'm Mr. Egan.

[00:14:04] Speaker 05:
You're speaking first.

[00:14:06] Speaker 03:
Yes.

[00:14:06] Speaker 03:
OK.

[00:14:07] Speaker 03:
There we go.

[00:14:08] Speaker 03:
Good morning.

[00:14:08] Speaker 03:
May it please the court.

[00:14:09] Speaker 03:
My name is Chris Egan.

[00:14:10] Speaker 03:
I represent individual defendant Bobby Griggs.

[00:14:14] Speaker 03:
So we've allocated our time between us.

[00:14:17] Speaker 03:
So Mr. Paul, he represents the county.

[00:14:20] Speaker 03:
and the remaining defendants.

[00:14:21] Speaker 03:
So Mr. Paul is going to address the Monell argument and also qualified immunity.

[00:14:26] Speaker 03:
I'm simply here just to discuss the 1983 portion of it.

[00:14:30] Speaker 03:
I have a feeling I'm going to be super brief here.

[00:14:32] Speaker 03:
So, you know, as we set out in our complaint, they're claiming, at least in their brief, a 14th Amendment due process claim.

[00:14:41] Speaker 03:
Our position is all of the other claims are waived with respect to 1983.

[00:14:45] Speaker 03:
The district court also, and they're both, I think,

[00:14:49] Speaker 03:
second amended complaint and the third amended complaint order also said those were not argued and therefore they're waived.

[00:14:56] Speaker 03:
The opening brief in this case didn't make separate... Can I ask about the state claims?

[00:15:00] Speaker 05:
There's a state claim for an Unruh claim.

[00:15:04] Speaker 05:
Yeah.

[00:15:04] Speaker 05:
Is that the only state claim or are there other state claims?

[00:15:07] Speaker 03:
There were two causes of action of the complaint.

[00:15:08] Speaker 03:
That was the only... Okay, so Unruh.

[00:15:10] Speaker 05:
There was 1983 and... And Unruh was just

[00:15:12] Speaker 05:
It was not addressed on the merits.

[00:15:14] Speaker 05:
The district court just said, look, I'm not exercising supplemental jurisdiction.

[00:15:19] Speaker 05:
It's interesting because Unruh specifically tracks, it's a state law claim that by definition specifically tracks the constitutional claim.

[00:15:29] Speaker 05:
So I'm trying to kind of figure out why they wouldn't rise and fall together.

[00:15:33] Speaker 05:
But because theoretically, if you were to win this,

[00:15:40] Speaker 05:
you would still be facing an unruh claim in state court, right?

[00:15:45] Speaker 03:
Yeah, I don't know how that will play out.

[00:15:47] Speaker 03:
But yes, he didn't rule on the state claim.

[00:15:50] Speaker 05:
OK.

[00:15:50] Speaker 05:
On the substantive due process claim, you don't disagree that our case law recognizes a substantive due process, right, for parents over their adult children, right?

[00:16:01] Speaker 03:
Yeah.

[00:16:02] Speaker 03:
Our argument in this case is essentially the two particular plaintiffs in this case

[00:16:08] Speaker 03:
Ryan Sylvester and Angela Ellis, the parents.

[00:16:12] Speaker 03:
We cited the Archuleta case as one of them that's instructive.

[00:16:17] Speaker 03:
There's no unconstitutional action toward the plaintiffs in this case.

[00:16:22] Speaker 03:
There's nothing.

[00:16:23] Speaker 02:
Well, that's a factual point, right?

[00:16:25] Speaker 02:
Right.

[00:16:26] Speaker 02:
I understand, given the police report, why you and your clients would think this is all completely made up.

[00:16:34] Speaker 02:
I get that.

[00:16:35] Speaker 02:
But you move to dismiss under 12b6, how do we not assume a wrongful killing for purposes of this appeal?

[00:16:47] Speaker 03:
Well, I mean, would you like me to do it factually?

[00:16:49] Speaker 03:
Is that what you're seeking?

[00:16:50] Speaker 02:
Well, the question, applying rule 12b6 standards.

[00:16:55] Speaker 04:
How can we get to those actual questions at 12b6 stage?

[00:17:02] Speaker 05:
If the facts were somehow attached to the complaint, maybe you would have some basis, but they haven't done that.

[00:17:12] Speaker 05:
Is there a way you can have these facts shoehorned into a 12b6?

[00:17:18] Speaker 03:
Well, the complaint is quite lengthy, and it does reference the recordings.

[00:17:23] Speaker 03:
It does reference, it attaches.

[00:17:27] Speaker 02:
Yes, but we don't litigate factual disputes

[00:17:32] Speaker 02:
based on dueling reports and accusations.

[00:17:36] Speaker 02:
That's why I'm having trouble with the district court's resolution of this.

[00:17:42] Speaker 03:
Yeah.

[00:17:43] Speaker 03:
I mean, our position on this is the plaintiffs themselves did not allege any unconstitutional actions against them.

[00:17:52] Speaker 05:
Well, they did allege it.

[00:17:55] Speaker 05:
I mean, they allege that their son was taken out back and murdered.

[00:18:00] Speaker 05:
How is that?

[00:18:02] Speaker 03:
Well, they're doing it under due process in that case.

[00:18:07] Speaker 05:
But we've said in the Ninth Circuit, we've said that there is a substantive due process claim here.

[00:18:12] Speaker 04:
You would agree on the constitution of a government officer can't murder a citizen.

[00:18:19] Speaker 04:
Of course.

[00:18:20] Speaker 04:
So that's the allegation as I see it.

[00:18:23] Speaker 04:
But then the question whether or not, I mean, it seems like you're questioning the plausibility of it, but I don't know if we could do that at this stage given that we can't look at any of the other evidence that you've introduced.

[00:18:36] Speaker 03:
Well, I think a lot of it was included in the complaint.

[00:18:38] Speaker 03:
So for example, there are numerous quotes from the recordings in the complaint as to what occurred.

[00:18:44] Speaker 02:
Right, but the complaint also says all that's a lie, right?

[00:18:49] Speaker 03:
Right, but I think that's, you know,

[00:18:52] Speaker 03:
I think the court can look at it and say, is that something, is that just a speculative statement?

[00:18:57] Speaker 02:
What's speculative about, sorry, go ahead.

[00:19:02] Speaker 02:
I mean, what more needs to be pleaded?

[00:19:07] Speaker 03:
Well, I think there need to be specific facts to support the causes of action, and I don't think it concludes the statement.

[00:19:13] Speaker 02:
The accusation is that your client, Deputy Briggs,

[00:19:16] Speaker 02:
murdered with the cooperation of two of her colleagues, murdered Ryan Ellis on a particular day in a particular place.

[00:19:24] Speaker 02:
Now, I understand there are lots and lots of reasons to question the credibility of that.

[00:19:29] Speaker 02:
I don't know how to resolve those kinds of questions on 12b6, but if you can tell me, I'll listen one more try.

[00:19:37] Speaker 03:
Yeah, I mean, I'm just going by what the district court did.

[00:19:39] Speaker 03:
So the district court cited the Iqbal case, talked about, you know,

[00:19:46] Speaker 03:
looking at whether these are just conclusory allegations or whether they're supported in the court, decided those.

[00:19:52] Speaker 02:
Right.

[00:19:53] Speaker 02:
I understand.

[00:19:54] Speaker 02:
But what more would be needed?

[00:19:56] Speaker 02:
Does she need an eyewitness to be cited in a complaint?

[00:20:02] Speaker 02:
You don't have to put evidence in a complaint.

[00:20:04] Speaker 03:
Well, the complaint, when you're looking at the complaint itself, it does say in the complaint, he was put in the backseat.

[00:20:11] Speaker 03:
He was driven.

[00:20:12] Speaker 03:
He kicked out the window.

[00:20:16] Speaker 03:
The deputy in the complaint in one of the recordings in the complaint says, I saw he had kicked out the window.

[00:20:23] Speaker 03:
I needed to drive in a different direction in order to, because this is a larger man, to make sure he doesn't get out and cause an injury.

[00:20:32] Speaker 03:
He drives out, jumps out the window or gets out the window, falls and hits his head on the concrete.

[00:20:38] Speaker 03:
All of that's in the complaint.

[00:20:40] Speaker 03:
So I mean, I think the facts played in the complaint don't support the conclusory allegation that he was murdered.

[00:20:45] Speaker 03:
That's just a statement by counsel.

[00:20:48] Speaker 03:
There's nothing factually in the complaint to support that and the district court.

[00:20:51] Speaker 04:
Well, didn't they also allege that he was taken to a field and killed there?

[00:20:56] Speaker 03:
Right.

[00:20:57] Speaker 03:
But it's contradicted by everything else in the same place.

[00:21:01] Speaker 04:
What about the cell phone in the middle of nowhere?

[00:21:06] Speaker 03:
I just don't see how that cell phone in the middle of nowhere has any connection to a constitutional violation.

[00:21:12] Speaker 02:
How did it get there?

[00:21:15] Speaker 03:
I don't know.

[00:21:16] Speaker 03:
I assume maybe he dropped his cell phone.

[00:21:19] Speaker 04:
The way I took that cell phone evidence to say is that if the facts are correct about Kim kicking out the window and that's how he died, then there's no reason why the cell phone would be in the middle of a field.

[00:21:30] Speaker 04:
So that suggests that that version of facts is not correct.

[00:21:34] Speaker 03:
Yeah, or it could just be that the cell phone was dropped before he was placed in the car.

[00:21:39] Speaker 04:
Right.

[00:21:39] Speaker 04:
Well, that's a problem.

[00:21:40] Speaker 04:
That's a factual dispute.

[00:21:42] Speaker 02:
Can I ask you briefly, does it matter for any of our legal purposes today?

[00:21:48] Speaker 02:
And Mr. Frank, I hope you might address this in rebuttal.

[00:21:50] Speaker 02:
Does it matter whether Ryan and Brianna were legally divorced at the time of his death for any purposes under federal or state law?

[00:22:02] Speaker 03:
Are you asking me?

[00:22:02] Speaker 02:
Yes, I'm asking you.

[00:22:04] Speaker 02:
Well, that was your time.

[00:22:05] Speaker 02:
Oh yeah.

[00:22:06] Speaker 03:
Well, I'm actually overlapping now into my, my co-counsel's time.

[00:22:09] Speaker 03:
So, you know, that is something that, uh, you know, I don't know the answer to.

[00:22:14] Speaker 03:
Okay.

[00:22:15] Speaker 03:
Thank you.

[00:22:15] Speaker 05:
Yeah.

[00:22:16] Speaker 05:
Okay.

[00:22:17] Speaker 05:
Uh, now we'll hear from Mr. Paul.

[00:22:22] Speaker 00:
Morning, your honors.

[00:22:22] Speaker 00:
May it please the court.

[00:22:23] Speaker 00:
Jonathan Paul on behalf of Appellee's County of Sacramento, Sacramento County Sheriff's department, Sheriff Scott Jones.

[00:22:30] Speaker 00:
Deputy Timothy Mullen and Deputy Dick Mall.

[00:22:33] Speaker 00:
This morning, I would like to raise two points.

[00:22:35] Speaker 00:
First, I will speak to the issue with regard to the Monell claim against the Sacramento County Sheriff's Department.

[00:22:42] Speaker 00:
And secondly, I'd like to speak to the issue of qualified immunity.

[00:22:46] Speaker 00:
First, examining the Monell claim.

[00:22:49] Speaker 00:
Plaintiffs, as they have just admitted in their argument,

[00:22:53] Speaker 00:
They have just conceded that they have no authority to support their Monell claim as pled.

[00:23:01] Speaker 00:
And they do not reference any in their opening brief, and they're unable to bring any to this court's attention today.

[00:23:07] Speaker 00:
In order to plead a Monell claim, they have to show more than just an isolated incident.

[00:23:17] Speaker 00:
They have to show that there is a

[00:23:21] Speaker 00:
improper excuse me that there's a more

[00:23:26] Speaker 00:
Sorry.

[00:23:28] Speaker 00:
In order to show liability for improper custom, they cannot simply predicate it upon an isolated or sporadic incidence.

[00:23:35] Speaker 00:
It must be found upon the practices of sufficient duration and frequency and consistency that the conduct has become a traditional method of carrying out policy.

[00:23:45] Speaker 00:
Plaintiffs have conceded today that they are unable to establish or cite to any authority to support their Monell claim.

[00:23:53] Speaker 00:
And therefore, I believe there's no remaining questions as to whether or not they've adequately pled Monell liability against the Sacramento County Sheriff's Department.

[00:24:00] Speaker 05:
So can you address qualified immunity?

[00:24:02] Speaker 05:
Because to me, that sort of collapses into the discussion we were just having.

[00:24:09] Speaker 05:
Because if the allegations in the complaint are true, which we have to accept at this point,

[00:24:18] Speaker 05:
that they did the police officers to come out and shot him.

[00:24:22] Speaker 05:
How would you have qualified immunity for that?

[00:24:25] Speaker 00:
Sure.

[00:24:25] Speaker 00:
And let me attempt to tackle the question which was posed earlier, Judge Nelson.

[00:24:29] Speaker 00:
So how do we get to those facts?

[00:24:32] Speaker 00:
Well, in ruling on a motion to dismiss, the court can, of course, consider the complaint and any exhibits thereto, as well as matters that can be judicially noticed pursuant to federal rule of evidence 201.

[00:24:43] Speaker 00:
And that's provided for under Meir versus Little County of Mary Hospital.

[00:24:49] Speaker 05:
Now that's not what the district court did though, right?

[00:24:51] Speaker 05:
I mean, the district court said this was a Nick Ball or Twombly problem.

[00:24:55] Speaker 00:
Yeah, I believe that is correct.

[00:24:57] Speaker 00:
However, if we look at the third amended complaint and specifically paragraph 11 of the third amended complaint, prior to plaintiffs stating that they can, that they can test the accuracy of the investigative report, they specifically alleged that Bobby Griggs was the deputy driving Ryan to the county jail.

[00:25:15] Speaker 00:
and that defendants Ma and Mullen arrived at the scene following Griggs calling in for and jumping out of the car.

[00:25:22] Speaker 00:
From paragraphs 12 further, they then go to dispute the other facts which they take issue with within the investigative report.

[00:25:31] Speaker 00:
So for purposes of qualified immunity, we need to ask ourselves, well, okay, so the allegations from the complaint are specifically what did these deputies do?

[00:25:40] Speaker 00:
Plaintiffs have alleged that Bobby Griggs was driving Ryan, the decedent, to the county jail, and deputies Mullen arrived at the scene after he had jumped out of the vehicle.

[00:25:52] Speaker 00:
And so is the law clearly established that those acts

[00:25:59] Speaker 00:
uh, violate the constitution.

[00:26:01] Speaker 04:
But counsel, uh, paragraph 12, the next paragraph says plaintiffs can test the accuracy of the sheriff's investigative report and do not rep, uh, do not by referencing them here in, admit the truth of what was said there in.

[00:26:12] Speaker 00:
That's correct, your honor.

[00:26:14] Speaker 00:
And there after that paragraph, they go on to allege all the facts from the investigative report.

[00:26:19] Speaker 00:
If you read the proceeding paragraph, it does not state that they're taking those facts from the investigative report.

[00:26:26] Speaker 00:
Those are simply facts they're pleading.

[00:26:30] Speaker 00:
And I would say this is, as I'm sure the court has reviewed, this is a very inartfully led, pled complaint.

[00:26:37] Speaker 00:
It's 62 pages in length.

[00:26:39] Speaker 00:
It's difficult to follow up.

[00:26:40] Speaker 05:
Well, that may be.

[00:26:41] Speaker 05:
I mean, I guess what I'm gathering is you're not really defending the district court's reasoning.

[00:26:46] Speaker 05:
You're coming up with an alternative basis to affirm, which is interesting.

[00:26:50] Speaker 05:
That that because we can look at this evidence because it's mentioned in the complaint That is enough for us to be able to I guess do some pressure testing I'm not sure what the law is when there's your argument seems to be there's inconsistent allegations in the complaint ultimately I'm not sure that's accurate, but can even if that's true

[00:27:18] Speaker 05:
Don't you still have to give all benefits to the plaintiff at a motion to dismiss stage, even if a plaintiff alleged inaccurate allegations?

[00:27:28] Speaker 00:
Well, I think for purposes of qualified immunity, Your Honor, you have to look at what they've pled.

[00:27:32] Speaker 00:
And if they pled inconsistencies in their complaint, but some of those inconsistencies support the basis of qualified immunity, I would submit that the officers are entitled to qualified immunity.

[00:27:45] Speaker 02:
What they pled was that the officers, wrongfully, without justification, killed Ryan Ellis.

[00:27:52] Speaker 02:
Again, there are plenty of reasons to question the credibility of those allegations, but we don't do that on 12b6.

[00:28:00] Speaker 02:
How do we decide, how could we grant qualified immunity on 12b6 here?

[00:28:08] Speaker 00:
Through the very paragraph I just cited, Your Honor, I understand the court.

[00:28:13] Speaker 00:
Go ahead.

[00:28:14] Speaker 02:
Sorry?

[00:28:15] Speaker 02:
Paragraph 12?

[00:28:16] Speaker 00:
Paragraph 11, Your Honor.

[00:28:18] Speaker 00:
Because that's the allegation they're making prior to saying they're disputing the investigative report.

[00:28:23] Speaker 02:
And so if we switch the order of that, the outcome would be different?

[00:28:29] Speaker 02:
I don't understand your point.

[00:28:31] Speaker 02:
The plaintiffs are making it very clear they contest the truthfulness of the investigative report.

[00:28:38] Speaker 02:
Again, may be wrong.

[00:28:40] Speaker 02:
I have plenty of reasons to doubt that, but you're the ones who chose to move to dismiss on the pleadings.

[00:28:50] Speaker 00:
That is correct, Your Honor.

[00:28:51] Speaker 02:
Okay.

[00:28:51] Speaker 02:
I think I have your answers.

[00:28:52] Speaker 02:
Thanks.

[00:28:53] Speaker 04:
Yeah, the way, the problem is I don't see any inconsistency in the complaint.

[00:28:58] Speaker 04:
I mean, he alleges what the police report says and then says, you know, there was no jumping out of the patrol car, there was no problem with the handcuffs, defendant made it all, made that all up.

[00:29:08] Speaker 04:
So that seems consistent.

[00:29:09] Speaker 04:
You say what the, you know, the officer is saying and they made it all up and there's so no inconsistency.

[00:29:18] Speaker 00:
Respectfully, Your Honor, again, I would point back towards paragraph 11, because that is not based upon the investigative report.

[00:29:24] Speaker 00:
Those are plaintiff's allegations in and of themselves.

[00:29:27] Speaker 00:
I do see the court's point what they're saying in terms of

[00:29:30] Speaker 00:
Well, plaintiff goes on to complain that this was all a setup.

[00:29:36] Speaker 00:
This was all a ruse established by deputies to make it appear as though it were an accident.

[00:29:41] Speaker 00:
However, if we just look at what plaintiffs pledged before they begin in questioning the investigative report, I believe that'd be sufficient basis for qualified immunity.

[00:29:54] Speaker 00:
And on that, Your Honor, if there's no further questions, I'd submit.

[00:29:56] Speaker 05:
Thank you.

[00:29:58] Speaker 05:
I will hear a rebuttal now.

[00:30:03] Speaker 05:
Oh, you've got to turn your mic on.

[00:30:06] Speaker 01:
Sorry.

[00:30:07] Speaker 01:
Your honor, you would ask the question that you wanted me to answer as well.

[00:30:10] Speaker 01:
And I'm sorry, I didn't quite get the question.

[00:30:13] Speaker 02:
Question is, does it make any legal difference for this appeal whether Ryan and Brianna were divorced at the time of his death?

[00:30:26] Speaker 01:
No.

[00:30:27] Speaker 01:
I'm sorry to answer so simply.

[00:30:28] Speaker 01:
First of all, they weren't divorced.

[00:30:32] Speaker 01:
There was a petition for divorce filed, but this all happened in the middle of it, so it was never finalized.

[00:30:39] Speaker 02:
Okay, thank you.

[00:30:41] Speaker 01:
Okay, fair enough.

[00:30:43] Speaker 01:
One point I want to make, case site is Oklahoma City versus Tuttle, U.S.

[00:30:48] Speaker 01:
Supreme Court case, which we cite.

[00:30:50] Speaker 01:
This does say one incident

[00:30:52] Speaker 01:
can qualify for a Monell claim.

[00:30:55] Speaker 01:
And counsel had indicated, you know, you need more than one.

[00:30:59] Speaker 01:
That case stands for the proposition that no, you don't.

[00:31:03] Speaker 01:
The other thing I'd like to point out on rebuttal, one of the reasons we didn't get into the weeds on this, if you will, about the wrongfulness of the death is that indeed the trial court didn't.

[00:31:15] Speaker 01:
The trial court wasn't examining

[00:31:18] Speaker 01:
You know, here's what the police report says.

[00:31:20] Speaker 01:
Here's what you people say.

[00:31:22] Speaker 01:
Does that really add up to a wrongful death?

[00:31:24] Speaker 01:
It was more of a, what I would call a pure legal issue that this court can decide de novo, you know, whether my clients have standing to bring a wrongful death claim under the Federal Civil Rights Act as per the cases that we cited and

[00:31:45] Speaker 01:
whether they have their own constitutional right therein, and we believe we've pled it, you know, we've met the standard, and the case should be reversed and sent back to the trial court.

[00:31:57] Speaker 02:
Thank you.

[00:31:57] Speaker 02:
Just to ask, is there a separate case that was brought on behalf of Ryan's estate?

[00:32:03] Speaker 02:
No.

[00:32:04] Speaker 02:
Okay.

[00:32:04] Speaker 02:
Thank you.

[00:32:06] Speaker 05:
Okay.

[00:32:06] Speaker 05:
Thank you to both counsel, all counsel, for your arguments in the case.

[00:32:11] Speaker 05:
The case is now submitted.