[00:00:00] Speaker 03: Our next case for argument is Tucson versus City of Seattle. [00:00:59] Speaker 04: After the next case, can we take a brief break? [00:01:06] Speaker 03: Absolutely. [00:01:08] Speaker 04: Thank you. [00:01:26] Speaker 02: May it please the court, Carola Cowart for the appellants. [00:01:30] Speaker 02: I'd like to reserve five minutes for rebuttal. [00:01:33] Speaker 02: The district court's numerous erroneous rulings and cumulation deprived these officers of a fair trial. [00:01:41] Speaker 02: Several key rulings are reviewed de novo. [00:01:45] Speaker 02: The court's erroneous reliance on First Amendment forum analysis to deny summary judgment on retaliatory arrest, a legal analysis so flawed that affirming it would largely nullify the Nieves v. Bartlett exception. [00:02:03] Speaker 02: The related erroneous jury instruction number 19, regarding an important disputed fact, it stated that officers typically don't arrest for chalking on sidewalks or walls and amounted to a de facto directed verdict for plaintiffs. [00:02:22] Speaker 02: The court denied judgment [00:02:25] Speaker 02: as a matter of law, relying on evidence about non-party officers and the general atmosphere in Seattle as evidence of the defendant's state of mind. [00:02:38] Speaker 02: Other rulings further undermined fairness. [00:02:42] Speaker 02: divisive, prejudicial political views of non-party and defendant officers were allowed as evidence against the defendants. [00:02:52] Speaker 02: Highly prejudicial testimony from witness Cadman Cahill was based on rumor and innuendo rather than personal knowledge. [00:03:02] Speaker 02: The court described a courthouse mural as a tagging wall to the jury, legitimizing the plaintiff's conduct. [00:03:11] Speaker 02: The court enjoined the city's graffiti ordinance as unconstitutional, which this court reversed, yet the district court awarded attorney's fees for that failed effort. [00:03:24] Speaker 02: I will begin with the incorrect legal standard used to deny summary judgment. [00:03:31] Speaker 02: affirming here would largely nullify the slim exception under Nieves and Gonzalez. [00:03:39] Speaker 02: The district court used First Amendment forum analysis to conclude as a matter of law that the wall plaintiffs chalked and charcoaled on was indistinguishable from a sidewalk. [00:03:52] Speaker 02: The city has a policy to allow chalking on sidewalks. [00:03:57] Speaker 02: And based on that, the district court applied the Nieves exception to plaintiffs' arrest for chalking and charcoaling on a wall. [00:04:06] Speaker 02: By that logic, a retaliatory arrest claim for charcoaling on a courthouse wall would survive summary judgment. [00:04:16] Speaker 02: The district court also reversed the burden of proof and relied on its finding that the defendants didn't present enough evidence of similar arrests. [00:04:28] Speaker 02: Under the district court's extreme opinion, the slim exception established in Nevis and Gonzales would swallow the general rule that bars these claims were probable. [00:04:41] Speaker 04: So what's the standard? [00:04:42] Speaker 04: The standard under Nevis is probable cause or objective evidence that the people writing with chalk or charcoal on walls and sidewalks are generally not arrested, correct? [00:04:56] Speaker 02: Yes, that officers typically exercise their discretion not to make arrests in similar circumstances. [00:05:04] Speaker 04: Wasn't there objective evidence as to that provided to the court? [00:05:11] Speaker 02: No, Your Honor. [00:05:14] Speaker 02: So under Nieves and Gonzalez, the test is whether officers declined to arrest for similar conduct. [00:05:21] Speaker 02: And the district court here didn't require, became sidetracked by forum analysis and didn't require plaintiffs who bore the burden to meet their requirement to present objective evidence. [00:05:37] Speaker 03: So what does that mean in English? [00:05:39] Speaker 03: Do you know what I'm saying? [00:05:41] Speaker 03: We got the sidewalk out there on Capitol Hill outside the police precinct and the police are writing on it. [00:05:49] Speaker 03: protesters are writing on it, right? [00:05:50] Speaker 03: And then we got the wall that's like basically a sidewalk turned perpendicular, concrete wall there adjacent to the station. [00:06:00] Speaker 03: So just starting there, isn't that similar conduct, chucking on that wall of that police station, similar to chucking on the sidewalk outside the police station? [00:06:13] Speaker 02: So under Nieves and Gonzalez, the test is similar. [00:06:19] Speaker 02: And there's ample evidence in the record that chalking on sidewalks is very common and that the police don't arrest people who chalk on sidewalks. [00:06:30] Speaker 02: That's a given. [00:06:31] Speaker 03: All right. [00:06:32] Speaker 03: And what about chalking on that wall outside the police station? [00:06:37] Speaker 03: There's no evidence like that about evidence that it's happened, but only one or so people have been arrested for it. [00:06:46] Speaker 02: There's evidence that graffiti on the wall is common, spray paint and chalking. [00:06:54] Speaker 02: Well, OK. [00:06:57] Speaker 03: So that's content. [00:06:58] Speaker 03: So first we got like we're taking the chalk and we're writing all over the sidewalk, including the police lady. [00:07:03] Speaker 03: Then we got the wall. [00:07:05] Speaker 03: And there's evidence in the record that people are writing on that, right? [00:07:10] Speaker 02: The district court relied on evidence about sidewalks. [00:07:15] Speaker 03: No, I mean, I'm asking you what the record shows is that as to this wall, there's evidence that people are writing on it, whether they're writing graffiti or statements or whatever, right? [00:07:25] Speaker 02: Yes, there's a lot of evidence that there's a lot of graffiti. [00:07:27] Speaker 03: OK, so we've got sidewalks and we've got walls, and people are writing all over them. [00:07:31] Speaker 03: So I take it your argument is that a wall is not a sidewalk? [00:07:36] Speaker 03: Is that the argument? [00:07:38] Speaker 02: Yes, that the conduct is different for many reasons. [00:07:42] Speaker 02: The city has a policy to allow chalking on sidewalks, but no policy like that about walls. [00:07:48] Speaker 02: And the city cares more about graffiti on walls than about graffiti on the ground, I think, as a matter of common sense. [00:07:56] Speaker 03: No, I mean, we go from policy. [00:07:59] Speaker 03: We've got a policy you can write all over the Seattle sidewalks. [00:08:03] Speaker 03: But there's no policy on walls, you're saying. [00:08:06] Speaker 03: There's no evidence about it. [00:08:09] Speaker 03: OK, we'll just say there isn't any evidence in the record about any policy about walls. [00:08:14] Speaker 03: But then you go on to say, but it's common sense that the city would care more about walls than sidewalks. [00:08:20] Speaker 03: Where does that come from? [00:08:21] Speaker 03: Well, there's evidence about it. [00:08:23] Speaker 04: May I interrupt for one second? [00:08:25] Speaker 04: Because you're saying there's no evidence that people wrote on the wall, but testimony from officers [00:08:31] Speaker 04: showed that at the time of plaintiff's arrest, people place graffiti and paint and chalk on the eco block wall daily. [00:08:39] Speaker 04: And there's sites to several points in the record where officers testified to that. [00:08:46] Speaker 02: There's no evidence of allowing graffiti on the wall. [00:08:51] Speaker 03: So what you're saying, there's no city policy one way or the other. [00:08:54] Speaker 02: The evidence is that officers said they would go out and arrest people when it happened. [00:09:01] Speaker 02: The only incident identified in the record of someone doing that resulted in an arrest, and that was about a month before the plaintiffs. [00:09:11] Speaker 03: Okay, we got one person arrested for writing on the wall. [00:09:16] Speaker 01: Was that graffiti or chalk? [00:09:18] Speaker 03: That was chalk. [00:09:21] Speaker 02: There there there was the evidence in the record is that the police station cleaned it up every single day when there was spray paint and chalk on the wall and that the officer said it was important to address. [00:09:40] Speaker 04: The council if they were cleaning it up daily that means daily people were putting graffiti and chalk on the wall. [00:09:47] Speaker 04: And there's no evidence those people daily were being arrested. [00:09:51] Speaker 04: I don't quite understand what is the fine distinction that you're making here. [00:10:00] Speaker 02: There's no evidence that it's an activity that's rampant but under enforced. [00:10:12] Speaker 02: There's no evidence that people did it in front of the police. [00:10:19] Speaker 02: So if we're, Nieves and Gonzalez talk about officers exercising discretion. [00:10:25] Speaker 03: Let's just be practical. [00:10:27] Speaker 03: So the plaintiff has to introduce evidence that people did it in front of the police? [00:10:32] Speaker 03: Is that the plaintiff's burden or is that the city's burden? [00:10:37] Speaker 02: The plaintiff has the burden under Nieves and Gonzalez, whether officers decline to make arrests for similar conduct. [00:10:46] Speaker 03: Right. [00:10:47] Speaker 02: And if we're talking about the evidence at summary judgment, there was evidence that there was writing on the wall, spray paint and chalk. [00:10:59] Speaker 02: There's no evidence about how common the chalk was relevant to spray paint and that the officers considered it important and that when it was safe and feasible, they would go out and address it. [00:11:11] Speaker 02: And the district court said the defendants did not introduce enough evidence of similar arrests, but did not require plaintiffs to introduce evidence on that. [00:11:25] Speaker 02: There's no evidence that this was like jaywalking. [00:11:30] Speaker 03: What do you mean it's like jaywalking? [00:11:33] Speaker 02: The Nieves example. [00:11:34] Speaker 03: Jaywalking is illegal. [00:11:37] Speaker 03: Seattle is one of the few cities where you actually can get a ticket for that. [00:11:40] Speaker 03: So I don't quite get the Jaywalking analogy. [00:11:43] Speaker 02: It's the example that Nieves uses. [00:11:49] Speaker 02: The exception is slim, and it applies to a situation where jaywalking is rampant, but not enforced. [00:12:00] Speaker 02: There is not objective evidence in the record that chalking or charcoaling on walls is rampant, but under enforced. [00:12:11] Speaker 03: Well, if they go out there, I'm just really [00:12:15] Speaker 03: The reason I'm struggling with it, if they go out there every day and clean it up, that would be rampant. [00:12:23] Speaker 03: So now we go to the second part. [00:12:24] Speaker 03: So there's no evidence that it's rampant and not enforced. [00:12:29] Speaker 03: But what's the evidence on the second one? [00:12:33] Speaker 02: Well, it's one wall at this police station. [00:12:36] Speaker 02: It was a security wall. [00:12:37] Speaker 02: Erected because of violence on the police station in 2020. [00:12:42] Speaker 02: There's no evidence about any other walls plaintiffs themselves testified they marked on sidewalks nearly every day and a couple of walls this wall and one other police station There's no evidence that this was happening throughout the city. [00:13:01] Speaker 02: There's a lot of evidence about this security wall becoming a flashpoint [00:13:06] Speaker 02: and that the police officers were instructed to keep this area clear. [00:13:12] Speaker 02: And the police officers talked about why it was difficult to make arrests. [00:13:17] Speaker 02: They would go out to make arrests when people were marking on the wall. [00:13:21] Speaker 02: And I think Sergeant Kennard's testimony at the trial is the best sort of sum up succinctly of why they couldn't make arrests. [00:13:29] Speaker 02: frequently. [00:13:31] Speaker 02: The second they opened the door, people would flee. [00:13:34] Speaker 02: People often did it in the dark and couldn't be seen. [00:13:37] Speaker 02: These plaintiffs were right in the driveway for the patrol cars. [00:13:42] Speaker 02: There were three security cameras trained on them. [00:13:45] Speaker 02: They were seen immediately. [00:13:47] Speaker 02: When the officers went out, they didn't flee. [00:13:49] Speaker 02: They stayed there. [00:13:51] Speaker 02: Sergeant Kennard and other officers testified about how anytime there were higher priority 911 calls, they couldn't go out to make arrests. [00:14:01] Speaker 02: This is protocol. [00:14:02] Speaker 02: Anytime there was a large crowd of people all doing graffiti at the same time. [00:14:07] Speaker 01: So on this particular security wall, it was routine that people would apply chalk, graffiti, whatever. [00:14:17] Speaker 01: and periodically or routinely, it would be cleaned up. [00:14:24] Speaker 02: It was cleaned up every day or multiple times a day. [00:14:27] Speaker 01: And this was observable by video cameras? [00:14:31] Speaker 02: Depending where it was on the wall. [00:14:33] Speaker 01: Now, anybody go and look at these cameras and try to identify the people and seek them out and arrest them? [00:14:41] Speaker 02: No, there were no investigative resources devoted to that. [00:14:44] Speaker 03: Could I ask, I know you have short on time but I want to understand another issue because I want to ask the other side about it and that's the Monell issue. [00:14:56] Speaker 03: So I'm having a little trouble tracing the city policy and I understand if I understand your argument you're saying well there is no identifiable longstanding city policy, is that right? [00:15:12] Speaker 02: Yes. [00:15:13] Speaker 03: And the city policy you would be referring to is what precisely with respect to Monell liability. [00:15:20] Speaker 02: There is no city custom or practice. [00:15:25] Speaker 02: The district court relied on testimony by the defendants about a, quote, protester exception that was related to the King County jails policy. [00:15:36] Speaker 02: And the district court said that was testimony about a city policy. [00:15:40] Speaker 03: So I want to ask you about that. [00:15:41] Speaker 03: Seattle police are housing people down at the King County jail. [00:15:47] Speaker 03: And there's a cooperative agreement that you can put people there. [00:15:50] Speaker 03: But it's King County that has this COVID and then added this protester exception, right? [00:15:57] Speaker 03: So the question I had, maybe you can just explain it. [00:16:01] Speaker 03: Is that imputed then to the city in terms of the city officials and the agreement between the city and the county on housing arrestees? [00:16:18] Speaker 02: There's all of the evidence at trial was that the officers had to ask the supervisor at the county and the county's own document is consistent with this, which plaintiff introduced as trial exhibit 30 either 36 or 37 that the officers had to ask the county. [00:16:41] Speaker 02: Will you book this person? [00:16:43] Speaker 02: I see. [00:16:43] Speaker 02: and then provide an individualized explanation for why the person needed to be booked. [00:16:50] Speaker 02: So there's no evidence that the city adopts the county policy or that the county policy is the city's policy, it's the county jail. [00:17:02] Speaker 02: There's no evidence the practice was retaliatory rather than based on the risks posed by crimes within large crowds. [00:17:12] Speaker 02: There's no evidence that plaintiffs were booked under this exception or anyone else was. [00:17:17] Speaker 02: Thank you. [00:17:19] Speaker 02: That's helpful. [00:17:22] Speaker 02: I'll reserve my time for rebuttal. [00:17:24] Speaker 03: I'll give you some time for rebuttal. [00:17:25] Speaker 03: Thank you. [00:17:53] Speaker 00: Good morning, your honors, and may I please the court Nathaniel flack for the plaintiff at police. [00:17:58] Speaker 00: I may I'd like to start with some of the monel issues that your honor was asking about. [00:18:03] Speaker 00: And just to sort of back up and start with the high level view of the monel claim and the facts that support it so it's. [00:18:11] Speaker 00: It's true that the jail is owned by the county and run by the county, but obviously SPD, as the record bears out, is a repeat player in bringing folks to the jail. [00:18:24] Speaker 00: And there isn't really evidence that at any point in our case, any of the defendant officers who admit that they made the booking decision, which SPD does make this decision, whether to bring the arrestee [00:18:38] Speaker 00: from the lockup at the precinct to the jail and have them taken to jail, there's very clear testimony from the officers in this case that they made those decisions. [00:18:48] Speaker 03: There's testimony from... Well, yes, there's no dispute about the fact that they took them down there and then had the decision made, but my concern is what do you point to as a long-standing city policy? [00:19:04] Speaker 03: And I'm not too convinced by the... [00:19:08] Speaker 03: individual from the Office of Human Rights or Civil Rights because she's not really part of the police department. [00:19:15] Speaker 00: Well, I do think that Ms. [00:19:16] Speaker 00: Cahill has, as a policy director employed by the city, specifically working on the city's use of the jail, she has knowledge of the customs and practices that the police department is using in its determinations about who to take to the jail. [00:19:31] Speaker 00: So I do think she said she sheds some light on that. [00:19:34] Speaker 03: But where, I guess, where do I look? [00:19:37] Speaker 03: Where's the city policy? [00:19:39] Speaker 00: So the city policy is to [00:19:43] Speaker 00: give officers discretion. [00:19:46] Speaker 03: Where? [00:19:46] Speaker 00: So there's exhibit 38 in which SPD essentially forwards the memo from Mr. Diaz, who is the head of the jail. [00:19:58] Speaker 00: Mr. Diaz addresses this memo to various police chiefs, including the SPD chief, it's undisputed, saying this is how we would like the police departments to treat the jail during COVID. [00:20:12] Speaker 00: And that's exhibit 37, that memo from the head of the jail. [00:20:15] Speaker 00: And that memo is very detailed in terms of what it's requesting from the various police departments. [00:20:22] Speaker 00: These are the specific offenses, felonies, and certain specified misdemeanors that are subject to booking. [00:20:28] Speaker 00: And otherwise, there may be exceptions. [00:20:30] Speaker 00: Exhibit 38 shows that this was circulated internally among the SPD events team. [00:20:37] Speaker 00: And in any event, it was undisputed at trial. [00:20:40] Speaker 00: And according to, for example, Sergeant Kennard, who is a booking, he's a sergeant. [00:20:45] Speaker 00: So a big part of his job, according to his testimony, is screening arrests for booking and making these kinds of booking decisions. [00:20:52] Speaker 00: And according to his testimony, he was aware of these booking restrictions. [00:20:56] Speaker 00: The city had [00:20:57] Speaker 03: But I'm still kind of left with the where's the city policy. [00:21:02] Speaker 03: I know we got Sergeant Kennard and we know we have some thing to be credited from Cahill, but where's the city policy? [00:21:13] Speaker 03: Can you have three or four officers who do A, B, and C and all of a sudden that constitutes a city policy? [00:21:20] Speaker 00: I think, strictly speaking, I guess I would start looking at model instruction 9.5, which was given to the jury in this case, and which talks about official policy or widespread or long-standing practice or custom that caused the deprivation of plaintiffs' rights. [00:21:35] Speaker 00: And I think, strictly speaking, our theory, our Monell theory, although it involves high-level policies governing the use of the jail, strictly speaking, it is a practice or custom-type Monell claim. [00:21:48] Speaker 00: And it's borne out by the testimony of Sergeant Kennard, who was responsible for this, and testified he was instructed about the protester exception at roll call, and that he believed it had come up from high in the police department. [00:22:03] Speaker 00: Multiple officers testified about this. [00:22:04] Speaker 00: Ms. [00:22:05] Speaker 00: Cahill had knowledge that this was going on. [00:22:07] Speaker 00: And even the city's witness on this point, Ms. [00:22:09] Speaker 00: Agard, I believe it's pronounced, a captain in the police department, while characterizing this practice somewhat differently, acknowledged that [00:22:19] Speaker 00: that the city was booking people into jail if they were arrested during a protest. [00:22:27] Speaker 03: Is there any separate damages, judgment against the city? [00:22:36] Speaker 03: Separate from the officer. [00:22:37] Speaker 03: If you look at the verdict form, I don't see dollars and city connected. [00:22:43] Speaker 03: But maybe I'm missing something. [00:22:46] Speaker 00: That's right, Your Honor. [00:22:47] Speaker 00: So the jury did specifically find the city separately liable. [00:22:52] Speaker 00: But under, I think, 1983, this hasn't been briefed. [00:22:55] Speaker 00: But generally speaking, 1983 compensatory damages are joint and several. [00:23:00] Speaker 00: And so that is reflected in the way that the verdict form is set forth. [00:23:07] Speaker 00: But just on the on the booking issue, but before moving on from that, unless the court has further questions on it, I wanted to sort of correct the impression that the defendants have given in the brief, which is, I think, to cast doubt on the causation and the chain of events that go to them in the Monell claim. [00:23:29] Speaker 00: So, for example, they've testified that [00:23:31] Speaker 00: excuse me, they've put in their brief that there was no protest, or it's undisputed that there was no protest on the night of the arrest. [00:23:39] Speaker 00: And I don't think that's borne out. [00:23:40] Speaker 00: I think the jury heard testimony from Sergeant Kennard that he perceived this to be a protest. [00:23:46] Speaker 00: It is written in the police report that was prepared by Officer Nelson documenting the arrests, which was reviewed and approved and signed off on by Sergeant Kennard that this group of people in front of the precinct was [00:24:00] Speaker 00: a group of so-called known protesters. [00:24:03] Speaker 00: And that links up very neatly and logically with the testimony about the protester exception. [00:24:10] Speaker 00: The officers responsible for booking were asked about this. [00:24:16] Speaker 00: It's clear Officer Patton testified in the sixth volume of the excerpts of record that he believed people arrested at protests didn't need to be screened to be taken to the jail. [00:24:25] Speaker 00: And indeed, the record is devoid of evidence that anybody was screened in the sense of seeking approval from the jail for the booking. [00:24:34] Speaker 00: And Officer Nelson gave testimony that was [00:24:38] Speaker 00: unequivocal that the jury heard, that he used his discretion to take these people to the jail. [00:24:44] Speaker 00: And I think Ms. [00:24:44] Speaker 00: Cahill's testimony sheds some light on this because she has a higher level view of how the city and the jail interact. [00:24:51] Speaker 00: But it's ultimately the decision that the jail is ultimately deferring to the officers about who is booked into jail. [00:25:02] Speaker 00: That is what the testimony [00:25:05] Speaker 00: there's out here and the officers testimony is consistent with that as well that they make the decision about who is booked and here it was certainly the most logical and natural inference based on all the testimony about these plaintiffs being protesters and the existence of a protester exception and the undisputed fact that the [00:25:24] Speaker 00: crime of arrest did not appear on the list of approved booking offenses. [00:25:28] Speaker 00: You've got to help me here. [00:25:30] Speaker 01: Monell requires a policy or practice. [00:25:35] Speaker 01: And you're contending that it was established in this case because of the King County's jail admission policies. [00:25:49] Speaker 01: Tell me how that connects with the allegedly improper arrest of protesters. [00:25:58] Speaker 00: Yes, so the county is not a defendant in this case, and so we've never alleged. [00:26:04] Speaker 01: That's clear. [00:26:05] Speaker 00: The unconstitutional practice here is the practice attested to by the arresting officers that they [00:26:14] Speaker 00: as part of what they called a department shorthand would book protesters into jail who did not qualify for booking under the policy then in effect, which was to only have certain specified offenses booked into the jail. [00:26:30] Speaker 01: I had always thought that Monell required the existence of a policy that allowed, maintained, or influenced the conduct of officials. [00:26:43] Speaker 00: So I would quote in response to that, Your Honor, I would quote directly from Monell at 436 US at page 690, where the court said that an actionable governmental custom can exist even though such a custom has not received formal approval through the body's decision-making channel. [00:27:00] Speaker 00: So that word custom, which carries through to the model instruction in this circuit, is drawn directly from Monell itself. [00:27:09] Speaker 00: And ultimately, as this court held in Trevino versus Gates, [00:27:13] Speaker 00: The question whether a policy or custom, in the words of the court, exists is a jury question. [00:27:18] Speaker 00: And I think, at a minimum, the logical link between people being arrested who are not on the list of offenses that are supposed to be booked undisputed. [00:27:28] Speaker 00: Those people were perceived as being protesters, undisputed based on the police records. [00:27:33] Speaker 00: Officers testified they understand there to be something called a protester exception, which allows booking. [00:27:39] Speaker 00: They testify that this was a shorthand within the department. [00:27:42] Speaker 00: that it came down from higher up within the department. [00:27:45] Speaker 00: I think that evidence at a minimum is sufficient to go to a jury. [00:27:49] Speaker 00: I think the most logical inference, and certainly a reasonable inference, which the court should credit on review of the denial of a 50B motion, is that [00:28:00] Speaker 00: that constituted booking into jail because of the content or viewpoint of protected speech. [00:28:07] Speaker 01: I think you've made the best case you can. [00:28:09] Speaker 01: We'll see whether you've convinced us. [00:28:12] Speaker 01: Let me address something else that bothers me about the record in this case. [00:28:17] Speaker 01: And that is evidence of the political beliefs of the officers. [00:28:25] Speaker 00: So a couple points on that, Your Honor. [00:28:28] Speaker 00: I think I would first start out, there's reference in the briefs, the appellants briefing to this campaign flag that was hanging in the precinct. [00:28:38] Speaker 00: And we believe that objection is not preserved. [00:28:40] Speaker 00: The defendants were asked on the record if they objected to the admission of that exhibit, which was ultimately just a body cam video of the arrest of our clients. [00:28:52] Speaker 00: They stated there was no objection. [00:28:54] Speaker 00: And in response to the very limited questions related to that item that can be seen on the wall of the precinct, again, there's no objection. [00:29:03] Speaker 00: So we don't believe that that issue is preserved for this court's review. [00:29:08] Speaker 00: But in any event, I don't think it should trouble the court. [00:29:12] Speaker 00: This is, I think, an area of very limited inquiry at trial. [00:29:17] Speaker 00: There are just a couple questions which go to the obviously [00:29:23] Speaker 00: This is not extraneous evidence that was introduced. [00:29:26] Speaker 00: We were looking at the video footage that shows our clients being placed under arrest, being locked up inside a cell inside the precinct, and in the course of that, you [00:29:39] Speaker 00: See what the inside of the precinct looks like and I don't think the defendants have ever explained why that evidence should be altered or manipulated or somehow changed to prevent the jury from seeing the true appearance of the interior of the precinct and I obviously subscribed to the to the proposition that [00:30:06] Speaker 00: Well, I think the questions here were geared towards the issue of viewpoint, which is an issue in issue. [00:30:17] Speaker 00: The question of viewpoint and of political motivation. [00:30:20] Speaker 00: In the Gonzales case, the Supreme Court referred to the basic allegations in the complaint as involving a quote unquote political vendetta. [00:30:29] Speaker 00: And I don't know if we would go quite that far in describing our case, but I think the Supreme Court's [00:30:35] Speaker 00: use of that phrase in that case recognizes that in a retaliatory arrest case, very often, a viewpoint is going to come into play. [00:30:44] Speaker 00: It ultimately has to. [00:30:47] Speaker 00: And I think the jury saw in the context of not just this flag, but these were materials that were seized from protesters also around the precinct. [00:31:01] Speaker 00: I don't think there's any reason to think that the jury was focused on this. [00:31:03] Speaker 00: It was not a focus in closing. [00:31:05] Speaker 00: It was not a focus of questioning of witnesses. [00:31:08] Speaker 00: But I think it was relevant context. [00:31:11] Speaker 00: And in any event, defendant's objections to it are not preserved. [00:31:15] Speaker 03: Another question about the jury, and this goes to the Nieves instruction. [00:31:22] Speaker 03: So I think the city argues that you have to presume prejudice if you take the position that [00:31:31] Speaker 03: the jury instruction took away from the jury the question of objective evidence because the way it's phrased is I instruct you there was probable cause so that then kicks you into this exception but then goes on to say plaintiffs have presented objective evidence that officers don't exercise their discretion to read [00:31:58] Speaker 03: to arrest people chalking on sidewalks and walls. [00:32:02] Speaker 03: So the question I have is whether that is a question of law or is that a question of fact that should have been left to the jury? [00:32:14] Speaker 00: Thank you, Your Honor. [00:32:15] Speaker 00: And briefly on that, we do not believe that issue is preserved either. [00:32:20] Speaker 00: Under the plain language of Rule 51, the defendants, if they object to that instruction, were required to object at the time provided by the court, which was at the final exceptions conference before the final instructions were compiled. [00:32:37] Speaker 00: And defendants had notice of that conference the day before. [00:32:40] Speaker 00: That's on the record at the end of the ninth volume of the SERs. [00:32:44] Speaker 00: They did not object on the record. [00:32:45] Speaker 00: They had previously submitted a proposed instruction that included that language. [00:32:51] Speaker 00: And so we think this is, even before that, defendants had first brought up the idea of instructing the jury about Nieves. [00:33:02] Speaker 00: So we think this is not only unpreserved under Rule 51, but also invited error. [00:33:06] Speaker 00: But ultimately, we don't think that, to answer your honor's question, the Nieves exception finding is a threshold finding as to a burden of production on summary judgment. [00:33:20] Speaker 00: So the court is making what I think is probably best characterized as a mixed determination of law and fact, have plaintiffs come forward [00:33:27] Speaker 00: with evidence going to this point. [00:33:30] Speaker 00: Have they produced objective evidence showing that similarly situated people are not arrested? [00:33:34] Speaker 00: The court properly concluded that we had. [00:33:37] Speaker 00: And I think it was within the court's discretion not to mention that to the jury. [00:33:42] Speaker 00: It was within the court's discretion to inform the jury of its rulings on summary judgment as defendants urged the court to do. [00:33:50] Speaker 00: And because all of the evidence admitted at trial [00:33:54] Speaker 00: comported with that instruction. [00:33:56] Speaker 00: I think the most important point on that issue is just that it couldn't have made any difference to the jury's verdict whether that instruction was given because ultimately the jury heard all that evidence itself and defendants have never suggested how they opposed or to what in what manner they would have shown that it wasn't true that they didn't. [00:34:19] Speaker 03: Is there evidence in the record that distinguishes between [00:34:23] Speaker 00: Sidewalks and walls there's no evidence in the record as to any policy distinguishing between sidewalks and and walls or distinguishing in any manner between sidewalks and walls and I think I See that I'm out of time when you can finish the answer and then we'll see if there's any other questions. [00:34:42] Speaker 00: Okay. [00:34:42] Speaker 00: Thank you, your honor So yeah, there is no evidence [00:34:46] Speaker 00: supporting that argument from the city that there's some distinction. [00:34:49] Speaker 00: I think when the court says walls, I think we do need to be careful about that. [00:34:54] Speaker 00: This was not a wall in the normal sense that people think of a wall, or as that word is typically used. [00:35:00] Speaker 00: If you look at, I believe it's trial exhibit one, you can see this was what they've called eco blocks, or what I think people might commonly call a jersey barrier. [00:35:10] Speaker 00: essentially concrete blocks which are placed on the sidewalk, which are not analogous to the actual wall of the courthouse or the wall of a person's house or anything like that. [00:35:21] Speaker 00: This is a distinctive location. [00:35:23] Speaker 00: It's on the sidewalk in front of the police precinct. [00:35:28] Speaker 00: The district court's treating of the public forum analysis [00:35:33] Speaker 00: informed its conclusion that sidewalks and concrete blocks on top of sidewalks are analogous and similar for Nieves exception purposes. [00:35:43] Speaker 04: And so we do believe that- Can I ask you a question about the- I'm looking at the wall. [00:35:48] Speaker 04: It seems like there's a chain link fence there and then there's a concrete blocks. [00:35:55] Speaker 04: Was this like some sort of thing that was added on during the protests during COVID? [00:36:03] Speaker 04: to keep protesters away or something? [00:36:06] Speaker 04: Because it looks rather makeshift. [00:36:09] Speaker 00: Yes. [00:36:09] Speaker 00: So what's in the record, I think, is that this whole, these blocks and the fence part of it as well were added earlier in 2020 to keep protesters away. [00:36:22] Speaker 00: That's right. [00:36:24] Speaker 03: Thank you. [00:36:25] Speaker 03: Any other questions? [00:36:27] Speaker 00: Thank you. [00:36:27] Speaker 00: Request the judgment be affirmed. [00:36:29] Speaker 00: Thank you. [00:36:33] Speaker 03: Could you address the statement that the jury instruction 19 was not objected to and so any claim is forfeited on that instruction? [00:36:45] Speaker 02: Well, we objected orally and submitted a brief on it and the district court ruled orally once and in writing once and all that's required is that it be presented in a sufficiently clear manner that a definitive ruling is obtained. [00:37:00] Speaker 04: Your friend on the other side said you submitted a jury instruction that had that language in it. [00:37:07] Speaker 04: Is that true? [00:37:08] Speaker 02: Yes, Your Honor. [00:37:09] Speaker 02: Our supplemental brief said because the court has rejected our request, we are submitting an in the alternative request [00:37:20] Speaker 02: It's crystal clear in our brief that we are making an in the alternative request. [00:37:25] Speaker 02: That does not waive an argument. [00:37:27] Speaker 02: And we have all the relevant citations in our reply brief. [00:37:30] Speaker 02: We did not waive the argument. [00:37:32] Speaker 04: I'm sorry. [00:37:32] Speaker 04: What supplemental brief? [00:37:34] Speaker 04: Your supplemental brief on the jury instructions before the district court? [00:37:38] Speaker 02: Yes, sorry, Your Honor. [00:37:40] Speaker 02: It was our supplemental brief on jury instructions that we filed in the district court. [00:37:45] Speaker 02: And all of the relevant citations are in our reply brief in this court. [00:37:51] Speaker 02: So briefly, the video with the flag that... Well, let me just go back to that, though, is that the [00:38:08] Speaker 03: The client's counsel says, well, this is really a threshold question that the court has to determine under the Nieves analysis. [00:38:17] Speaker 03: What's your view on that? [00:38:20] Speaker 02: Oh, the Nieves instruction? [00:38:21] Speaker 03: Well, yeah, because the objective evidence prong of that instruction. [00:38:26] Speaker 02: Yes, Your Honor. [00:38:26] Speaker 02: It is a threshold question that was required to be determined at summary judgment. [00:38:31] Speaker 02: And so is that a legal issue and not a factual issue? [00:38:34] Speaker 02: I think the threshold question at summary judgment, that was a legal question. [00:38:41] Speaker 02: The way the Supreme Court talks about it in Nieves and Gonzalez makes it seem like a legal question at summary judgment. [00:38:48] Speaker 02: However, and I believe including it in the jury instruction was a legal error. [00:38:55] Speaker 02: I don't believe it should be included in the jury instruction. [00:38:58] Speaker 03: I believe it, regardless of what. [00:39:00] Speaker 03: So let me just get, because this is actually a pretty significant part of the case. [00:39:07] Speaker 03: So you're saying that at summary judgment, it was a legal question. [00:39:11] Speaker 03: So we get past that. [00:39:12] Speaker 03: Now we're at trial. [00:39:14] Speaker 03: And the judge is simply repeating the statement basically made as a matter of law. [00:39:24] Speaker 03: in the summary judgment proceeding and saying to the jury, here's the setup. [00:39:29] Speaker 03: So this was already determined, but then you can take a look at how you think that affects anything. [00:39:36] Speaker 03: So what is the error there? [00:39:39] Speaker 02: The nevis court says after this threshold determination is made then the case is to proceed as it otherwise would have been under the mount healthy framework and I believe that [00:39:55] Speaker 02: The reasoning of nevis makes it clear why this instruction would have been so was so prejudicial because telling because the the nevis determination is not [00:40:12] Speaker 02: Telling the district court at summary judgment to determine is there any genuine dispute of fact? [00:40:19] Speaker 02: It's telling the district court to determine at summary judgment Is there enough objective evidence to meet a certain threshold and if there is? [00:40:28] Speaker 03: Then it means it can go to the jury right yes, and so the error here if if you're just restating [00:40:38] Speaker 03: what has already been decided that there has been a threshold showing on this. [00:40:44] Speaker 03: What's the prejudice? [00:40:46] Speaker 02: The prejudice is what it would have caused the jurors to think about the officer's actions. [00:40:54] Speaker 02: And the Nieves Court describes in its reasoning how that, the fact that it is atypical or unusual, [00:41:04] Speaker 02: to make arrests makes it more likely that retaliation would have taken place. [00:41:09] Speaker 02: That's why it's a threshold determination. [00:41:11] Speaker 02: And so it puts the thumb on the scale. [00:41:14] Speaker 02: I think that's why I described it as a de facto directed verdict. [00:41:19] Speaker 02: I believe it was highly prejudicial. [00:41:24] Speaker 03: Any other questions? [00:41:27] Speaker 03: No. [00:41:27] Speaker 03: Thank you. [00:41:28] Speaker 03: I'd like to thank counsel both for arguments and the briefing. [00:41:31] Speaker 03: Very interesting case. [00:41:33] Speaker 03: Tucson versus the City of Seattle. [00:41:35] Speaker 03: We'll be taking a 10-minute recess, and then we'll come back for Washington Department of Health versus GeoGroup so you can get set up for that argument.