[00:00:00] Speaker 03:
I'd just like to mention if any students have questions, I'm happy to answer them as well.

[00:00:34] Speaker 04:
All right, so we'll proceed to hear argument in the next case on the calendar for argument, which is 24-6668, Brian Wright versus Gerardo Talamantes and Dale Woolridge.

[00:01:02] Speaker 04:
And we'll hear first from Mr. Moore.

[00:01:12] Speaker 02:
Good morning, Your Honors.

[00:01:14] Speaker 02:
May it please the court, counsel.

[00:01:17] Speaker 02:
My name is Michael Garth Moore.

[00:01:18] Speaker 02:
It's my privilege today to speak on behalf of Brian Wright and his son, Luke, in this very important case.

[00:01:27] Speaker 02:
Luke, of course, is a pseudonym.

[00:01:29] Speaker 02:
Brian's child's name remains secure.

[00:01:34] Speaker 02:
I wish to reserve two minutes for rebuttal time, please.

[00:01:40] Speaker 02:
With regard to Dr. Woolridge,

[00:01:46] Speaker 02:
Dispositive of this appeal is one presumption, two concessions, and two failures of Dr. Woolridge to meet his burden of proof.

[00:01:57] Speaker 02:
The first concession by Dr. Woolridge is that when he undertook, on the afternoon of December 16, 2020,

[00:02:06] Speaker 02:
to take six-year-old boy into an examination room at the behest.

[00:02:12] Speaker 05:
Counsel, and I understand your point, but can you answer this?

[00:02:15] Speaker 05:
Under Wallace v. Spencer, Mann v. County of San Diego, we said that a forensic medical exam without parental consent, a court order or exigency violates the Fourth and the Fourteenth Amendments.

[00:02:32] Speaker 05:
What more do we need to conclude that Dr. Woolridge conduct violated clearly established law, if we found that?

[00:02:41] Speaker 02:
What more do you need?

[00:02:42] Speaker 02:
What more do we need?

[00:02:43] Speaker 02:
From our position, Your Honor, you need nothing else.

[00:02:49] Speaker 02:
And the reason I say that is this, that once this Court concludes, because Dr. Woolridge concedes it, that he was a state actor,

[00:02:58] Speaker 04:
Did either of those cases hold the doctor liable?

[00:03:04] Speaker 02:
In neither of those cases did that issue come before the court, Your Honor.

[00:03:08] Speaker 02:
In Wallace, the doctor who was originally a defendant was dismissed under a state law claim that never arrived at the Court of Appeals under... I mean what it says in the dissent, it says

[00:03:22] Speaker 04:
Dr. In Wallace, it says Dr. Spencer was dismissed from the case on immunity grounds, but there's no explanation.

[00:03:29] Speaker 02:
It was state law immunity, Your Honor.

[00:03:31] Speaker 02:
I have read the decision.

[00:03:33] Speaker 02:
There was no federal decision made.

[00:03:36] Speaker 04:
That's not a reference to qualify.

[00:03:39] Speaker 02:
It is not.

[00:03:40] Speaker 02:
It is not.

[00:03:43] Speaker 02:
So the presumption arises once a private party state actor exists.

[00:03:50] Speaker 02:
that qualified immunity is not available to that state actor.

[00:03:54] Speaker 01:
Can I direct your attention to Maine versus San Bernardino County Department of Public Social Services?

[00:04:01] Speaker 01:
That case talks about the issue of immunity not depending on the official's title or agency.

[00:04:09] Speaker 01:
So can we look to that case to answer the question that I think that you just addressed, which is, does it matter in these other cases that they weren't

[00:04:20] Speaker 02:
Doctors that in the man case in the wallace case that that the identity of the individual at issue wasn't a physician It does not matter your honor and that but may have made the main position has arrived at only after The court determines that the doctor can actually set up a qualified immunity defense Our position is very simple and the law is very clear the doctor cannot set up a qualified immunity defense in this case the reason I say that is

[00:04:48] Speaker 02:
and talking about the presumptions here is I turn back to Wyatt versus Cole which is the touchstone of your brother and sister judges decision in Jensen and Wyatt held and I

[00:05:01] Speaker 02:
read from the decision.

[00:05:02] Speaker 02:
We have accorded certain governmental officials qualified immunity from suit if the tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that Congress would have specifically so provided had it wished to abolish the immunity.

[00:05:20] Speaker 01:
That still goes to the nature of the function that the person is performing.

[00:05:24] Speaker 01:
We need to reach a categorical rule with respect to physicians

[00:05:31] Speaker 01:
being able to assert qualified immunity or not, we can look simply to the function that they're performing, right?

[00:05:37] Speaker 02:
Well, Your Honor, to continue briefly,

[00:05:41] Speaker 02:
Dr. Woolridge cannot set up qualified immunity to reach the MABE consideration, but I will address that in a moment because the law across the nation is that qualified immunity, any immunity, did not exist for doctors performing state functions as of 1871 when Section 1983 came into effect.

[00:06:01] Speaker 02:
Dr. Woolridge is obligated to prove to this Court

[00:06:05] Speaker 02:
as a first instance that there was such an immunity and there was not.

[00:06:08] Speaker 02:
And I refer to McMullen, the Sixth Circuit case, which is overwhelmingly the case on point here.

[00:06:16] Speaker 02:
The second point is this, Dr. Woolridge's failure of proof not only goes to the first instance here, but also goes to the question of whether or not he can argue, as he has entirely in this case, the existence of some public policy basis for this court to create a qualified immunity that did not exist.

[00:06:39] Speaker 02:
Dr. Woolridge's arguments have entirely been based on public policy.

[00:06:45] Speaker 02:
completely divorced from the court's decisions and also untethered to the Constitution.

[00:06:50] Speaker 02:
But in Richardson, the Supreme Court quoted Tower versus Glover.

[00:06:56] Speaker 02:
And Tower versus Glover stated, and I quote, we do not have a license to establish immunities from section 1983 actions in the interest of what we judge to be sound public policy.

[00:07:10] Speaker 02:
That is exactly what Dr. Woolridge has invited this court to do.

[00:07:14] Speaker 05:
Yes.

[00:07:15] Speaker 05:
Can I ask you to turn just for a second to Telemontes?

[00:07:20] Speaker 05:
Because you contend that Telemontes misrepresented facts to the juvenile court.

[00:07:25] Speaker 05:
Can you pinpoint what specific falsehoods you contend that or omissions were dispositive?

[00:07:35] Speaker 02:
Certainly.

[00:07:37] Speaker 02:
First, the contention immediately, both in the application for the court authorized removal and

[00:07:45] Speaker 02:
uh... in the dependency petition was that url on the right had repeated regularly beat her child with her hand with a belt

[00:07:55] Speaker 02:
and with a Hot Wheels track.

[00:07:56] Speaker 02:
That was attributed to the child's representations.

[00:07:59] Speaker 02:
But if this court looks at the child's safety and risk assessment, which is the only document created by Talamantes at the time, the court will find that on the 28th of December of 2020, before he sought the application, Talamantes made notes as to what the child actually said.

[00:08:18] Speaker 02:
If the court goes back, and that's exhibit 25, that's in the excerpt of record.

[00:08:23] Speaker 02:
If the court goes back, it will find that Talamantes wrote down what the child said and it had nothing to do.

[00:08:29] Speaker 02:
with the mother supposedly regularly beating the child with her hand, with a belt, or with hot wheels.

[00:08:36] Speaker 02:
The other aspect of this, and the key one, is that Talamante's in both instances stated to the court that this child presented on December 16, 2020 with serious physical injuries and severe harm.

[00:08:50] Speaker 01:
So let me ask you about that.

[00:08:52] Speaker 01:
The form lists 22 pre-written check boxes.

[00:08:58] Speaker 01:
There are options that need to be checked.

[00:09:02] Speaker 01:
So can checking a box rise to the level of misrepresentation that's necessary to support your judicial decision?

[00:09:11] Speaker 02:
Actually, Your Honor, my argument here is not based on the temporary custody notice that you referred to.

[00:09:16] Speaker 02:
My argument here is based upon the application that was submitted to the court, paragraph 6, in which he said, this child had suffered serious or severe harm from deliberate action of the mother.

[00:09:28] Speaker 02:
which the Father approved of and allowed to continue.

[00:09:33] Speaker 02:
That was a falsehood.

[00:09:34] Speaker 02:
It was a falsehood because Talamantes had seen the images of this child taken by the father less than 24 hours after these events, and there was absolutely no serious injury.

[00:09:46] Speaker 02:
In fact, almost imperceptible marks on the child, which the father had testified and which the investigating detective had concluded were caused by rough housing among the children.

[00:09:58] Speaker 05:
And is your contention that at least there's an issue of fact there that

[00:10:03] Speaker 05:
that would allow you to raise that?

[00:10:05] Speaker 02:
Well, absolutely, Your Honor.

[00:10:06] Speaker 02:
Absolutely.

[00:10:06] Speaker 02:
These are questions which must be decided by a jury.

[00:10:10] Speaker 02:
Must be decided by a jury.

[00:10:11] Speaker 02:
For example, the trial court addressed

[00:10:17] Speaker 02:
address these issues.

[00:10:19] Speaker 02:
And in each instance where there was a dispute of fact, the trial court accepted Talamante's version of that.

[00:10:24] Speaker 02:
For example, the trial court found that Talamante's could have found that the injuries were serious or severe based upon Dr. Woolridge's report.

[00:10:35] Speaker 02:
However, Dr. Woolridge's report said nothing about severity of these injuries.

[00:10:39] Speaker 02:
It only said there are certain injuries here that I have found.

[00:10:43] Speaker 02:
The trial court ignored the testimony and the evidence of exactly what injuries existed on this child that Talamantes admitted he had seen.

[00:10:54] Speaker 02:
And therefore said, well, that's not material.

[00:10:57] Speaker 02:
But also, even if, the trial court said, even if he is, how do I want to say this?

[00:11:04] Speaker 02:
Even if he has enhanced what these injuries were, there's no evidence that he did this deliberately.

[00:11:10] Speaker 02:
These are all jury issues to be decided.

[00:11:13] Speaker 02:
you ask other issues and a key one, Your Honor, which takes us into Scanlon, Kostanich, and the Benevita's decision, Judge Collins, you were on that court, the Benevita's decision, and that is Talamante's, in both instances, reported to the court that Brian Wright conceded

[00:11:35] Speaker 02:
that at least one bruise on the child could have been caused by urlanda spanking the child brian right contest that and says that's untrue that's a lie he never said that but when you take this together your honor totality of circumstances when you take these together

[00:11:56] Speaker 02:
you take the mother regularly beating the child, the child appearing with severe injuries, and then the father who is the legal father, and Brian is with us today, the father who's the legal father admitting that the mother did this.

[00:12:12] Speaker 02:
That, Your Honor, takes us into Scanlon and is directly on point with Scanlon in terms of

[00:12:25] Speaker 02:
I apologize.

[00:12:27] Speaker 02:
What I want to do is go back to Benavides and its citation to Green versus Camretta.

[00:12:36] Speaker 02:
Proof in the form of an affidavit and deposition testimony that a defendant included false statements in his affidavit requesting protective custody order was sufficient to present a genuine issue of material fact and require the case to go to a jury and deny summary judgment.

[00:12:51] Speaker 02:
That, Your Honor, is the key here.

[00:12:59] Speaker 02:
My final point with regard to Dr. Woolrich, this court is not at liberty to frame a new qualified immunity for doctors that did not exist and has not ever existed.

[00:13:11] Speaker 02:
But more importantly, even if this court concluded that Dr. Woolrich could set up a qualified immunity defense, he cannot get qualified immunity in this case.

[00:13:22] Speaker 02:
And the reason is, goes back, for example, to Benavides.

[00:13:26] Speaker 02:
We talked about this a little earlier in the case.

[00:13:29] Speaker 02:
Because in Benavides, thank you.

[00:13:38] Speaker 02:
In Benavides, the social workers had received qualified immunity at the district court level on the basis of the medical exam that was performed on the child.

[00:13:49] Speaker 02:
And this court,

[00:13:51] Speaker 02:
When it took that up, denied that qualified, reversed that qualified immunity, what the district court had said had accepted was the defendant's position that Wallace and Mann say nothing about a constitutional right to notice from a particular individual or notice in a particular form.

[00:14:08] Speaker 02:
That was Lisk and Jensen's argument accepted by the district court and good faith basis to believe that the parents had been notified by someone else.

[00:14:17] Speaker 02:
That violation, they claimed, was not clearly established because of that.

[00:14:21] Speaker 02:
And this court said, no, you're wrong.

[00:14:23] Speaker 02:
And if we go to Ellis, the Ellis line of cases, the same thing.

[00:14:27] Speaker 04:
Do you want to take your time for rebuttal?

[00:14:28] Speaker 04:
You're in your two minutes.

[00:14:29] Speaker 02:
I thank you very much, Your Honor.

[00:14:31] Speaker 02:
Thank you.

[00:14:31] Speaker 04:
Thank you, counsel.

[00:14:32] Speaker 04:
We'll hear now first from Ms.

[00:14:37] Speaker 04:
Rethemeyer.

[00:14:38] Speaker 04:
Did I pronounce that correctly?

[00:14:39] Speaker 00:
Yes, perfectly.

[00:14:40] Speaker 04:
All right.

[00:14:43] Speaker 04:
And you're representing Talamantes.

[00:14:47] Speaker 00:
May it please the court?

[00:14:48] Speaker 00:
My name is Jennifer Rethemeier and I represent defendants, appellees, Jarter Telemontes and Megan Francisco.

[00:14:55] Speaker 00:
I'm reserving half of the time allowed for Mr. Sludes, who will be arguing on behalf of his client, defendant, appellee, Dr. Woolridge.

[00:15:02] Speaker 00:
I'd like to simply go ahead and take appellant's comments in turn.

[00:15:06] Speaker 00:
The first was regarding the use of the word regularly and as appellant put it, beat the child, which is of course nowhere in the documents.

[00:15:14] Speaker 00:
The place to find that information is in the forensic interview.

[00:15:18] Speaker 00:
The child repeatedly told the forensic interviewer that his stepmother hit him, that it was with an open hand, a belt, and also a Hot Wheels track.

[00:15:28] Speaker 00:
It's important to keep in mind here, too, that the child was six years old at the time.

[00:15:32] Speaker 00:
And so sequence and exact dates are difficult sometimes for a child of that age to recall.

[00:15:39] Speaker 00:
But it's very clearly in the record.

[00:15:40] Speaker 00:
I'll refrain from quoting it.

[00:15:43] Speaker 00:
But if you'd like to look at it, it's 2 ER 259 to 260.

[00:15:49] Speaker 00:
Regarding serious physical injuries in paragraph six of the application, I have the application right here.

[00:15:55] Speaker 00:
Paragraph six does not use that word.

[00:15:58] Speaker 00:
The word serious is not there.

[00:16:00] Speaker 00:
Why?

[00:16:00] Speaker 00:
Because that's not part of the legal standard here.

[00:16:04] Speaker 00:
So the legal standard, meaning what Mr. Talamant is needed probable cause of, is in ARS 8-821B, and it does not require that an injury be serious.

[00:16:18] Speaker 00:
Instead, it is that there is abuse or neglect and that it's contrary to the child's welfare to remain in the home.

[00:16:26] Speaker 00:
So what's there does not use the word serious because serious is not required.

[00:16:31] Speaker 01:
County protocols for child abuse investigations define serious injury.

[00:16:35] Speaker 00:
I don't recall offhand.

[00:16:40] Speaker 01:
Would you agree that the description or at least Talamantes is

[00:16:48] Speaker 01:
consideration or determination with respect to what constitutes a serious injury should comport with the Pima County protocols?

[00:16:57] Speaker 00:
Should perhaps, but to this legal standard here for probable cause is of abuse or neglect.

[00:17:05] Speaker 00:
And here, when speaking of the injury, I do think it's also important to note that it's not just the bruises.

[00:17:11] Speaker 00:
Nowhere does appellant account for the emotional impact to the child of being hit by his stepmother.

[00:17:16] Speaker 00:
And it comes through particularly in the DCS hotline call from the school health care worker, because it wasn't just that she called over a bruise.

[00:17:24] Speaker 00:
She had seen many bruises on this child.

[00:17:27] Speaker 00:
It's right in the record of what she reported on the hotline, that she had seen other bruises, asked the child about them, and the child would usually laugh and say how he got the bruise, like from falling or playing.

[00:17:42] Speaker 00:
This was different.

[00:17:43] Speaker 00:
The child instead

[00:17:45] Speaker 00:
deflected, didn't act as he normally does, put his hoodie over his head, and stated that he did not get the bruise from falling.

[00:17:53] Speaker 00:
So when talking about injury, I think it's important to account for this.

[00:17:56] Speaker 00:
It's not just the physical from the bruises.

[00:18:00] Speaker 00:
It's also the emotional impact.

[00:18:02] Speaker 00:
And to remove a child, DCS does not have to show that the injury is serious under 8-818.

[00:18:13] Speaker 00:
Regarding the statement next, this is that Mr. Wright conceded that there could have been a causal relationship between Ms.

[00:18:22] Speaker 00:
Wright's hitting and some of the bruises.

[00:18:25] Speaker 00:
I think that word could makes this statement immaterial as a matter of law.

[00:18:30] Speaker 00:
Mr. Wright concedes that Ms.

[00:18:32] Speaker 00:
Wright hit the child the night before the bruise in question.

[00:18:37] Speaker 00:
From that, a court can simply infer that there could be, which is the words here, that same relationship, that the hitting caused the bruise.

[00:18:46] Speaker 00:
So whether or not Mr. Wright said those particular words is immaterial here.

[00:18:57] Speaker 00:
more generally looking at this, to maintain claims for judicial deception.

[00:19:02] Speaker 04:
Can I just ask one question, just to make sure I'm understanding the facts correctly, when there was the characterization of serious or severe harm, was it clear from the context in which that statement was made in the application that that refers only to the December 16th incident, or could the context that it suggested refer to something else?

[00:19:27] Speaker 00:
I'm not sure.

[00:19:28] Speaker 00:
I'm not sure.

[00:19:28] Speaker 00:
Well so again the word serious does not appear in paragraph 6 of the application.

[00:19:32] Speaker 00:
That said I do think that.

[00:19:36] Speaker 00:
You know the hot care the hotline call from from that day is what precipitated all of this and there wasn't any later injury that was identified so I think for those purposes we're talking about did it relate to.

[00:19:48] Speaker 04:
The state of the child and his injuries on that

[00:19:59] Speaker 00:
What?

[00:20:00] Speaker 00:
So I did not reread the entire thing.

[00:20:01] Speaker 01:
I'm looking at year six sixty and this is the ex parte removal application and I'll read it to you quote.

[00:20:09] Speaker 01:
L. A. W. is at unreasonable risk of harm at his current home as the parent guardian or custodian deliberately harmed him and has caused serious or severe harm.

[00:20:20] Speaker 00:
So Appellant, when in his argument, had cited paragraph six, and the word is not there.

[00:20:24] Speaker 00:
So I apologize.

[00:20:24] Speaker 04:
Well, I'm asking you about what is in the application, what your society just read, and I want to understand what that means.

[00:20:32] Speaker 04:
And I want your input as to what that means.

[00:20:35] Speaker 04:
I don't care whether it's in paragraph six or paragraph 28.

[00:20:39] Speaker 04:
What does that mean?

[00:20:41] Speaker 04:
What is that referring to?

[00:20:42] Speaker 04:
Is it referring just to the December 16th incident or observations?

[00:20:47] Speaker 04:
Or is it referring to something else?

[00:20:49] Speaker 04:
Or could it be construed as referring to something else?

[00:20:52] Speaker 00:
So because there were injuries, beating bruises, in different states of healing, indicating that they occurred at different points in time, there was concern that there was a pattern here.

[00:21:03] Speaker 00:
So in that sense, it refers in that way to more than just that particular date.

[00:21:07] Speaker 01:
So I think the reason that I'm asking about, in order for Mr. Talment is to make an application to the court, ex parte, and make these representations.

[00:21:16] Speaker 01:
They need to be informed by experience, the protocols.

[00:21:21] Speaker 01:
And I'm really interested in the protocols because it's very clear, and I'm looking at ER 530 now, that serious physical injuries defined as

[00:21:32] Speaker 01:
reasonable risk of death or serious impairment of health or something that causes serious or permanent disfigurement or loss or protracted impairment of the function of any bodily limb or organ.

[00:21:43] Speaker 01:
And what we're needing to decide here is whether or not there's something sufficient to create a tribal issue of fact to go to a jury.

[00:21:51] Speaker 01:
And so

[00:21:53] Speaker 01:
It may be that Mr. Talmentis is taking all the information and putting this in application, but couldn't a reasonable trier of fact conclude otherwise given that Dr. Woolrich's notes say that this is consistent with accidental play, that there are quote unquote little boy bruises consistent with his age.

[00:22:14] Speaker 01:
So tell me why this together doesn't at least create a tribal issue.

[00:22:19] Speaker 00:
So the first reason is that this is a conclusion.

[00:22:22] Speaker 00:
And all the facts are set out in advance of that.

[00:22:25] Speaker 00:
And this is exactly why we have the court.

[00:22:28] Speaker 01:
What's the conclusion?

[00:22:30] Speaker 00:
That it's a serious injury and that removal is warranted.

[00:22:33] Speaker 01:
It's a representation on which Talamantes is asking the court to order the removal of a child.

[00:22:40] Speaker 00:
So we have here, in particular, I direct the court to Dr. Woolridge's report, which states that, given that there are different dates of injury and, of course, the location of them, that this is concerning,

[00:22:52] Speaker 00:
for the wounds being inflicted.

[00:22:54] Speaker 00:
I will also note that the location is important.

[00:22:57] Speaker 00:
This is not a scraped knee and a bloody elbow.

[00:23:01] Speaker 00:
These are all in the location where spanking occurs.

[00:23:04] Speaker 00:
They're all on the rear end and the upper back of the legs.

[00:23:07] Speaker 01:
That argument you're making is very concerning to me as a person with children.

[00:23:12] Speaker 01:
Kids get bruises all the time.

[00:23:13] Speaker 01:
So these are bruises.

[00:23:16] Speaker 01:
So I know you're saying it's not a scraped knee, but it's a bruise.

[00:23:19] Speaker 01:
So I really want to understand how that, the bruise, is what can be converted into a statement about serious or severe harm.

[00:23:31] Speaker 00:
So the bruise was unexplained and the child was not willing to account for it, which was unlike the child's normal behavior.

[00:23:38] Speaker 00:
So this is an indication that there's something going on at the home.

[00:23:42] Speaker 05:
Just based upon what you just said, doesn't that create an issue of fact?

[00:23:46] Speaker 05:
Oh, it's based upon that's not what's normal for the child.

[00:23:49] Speaker 05:
What's that based on?

[00:23:50] Speaker 05:
Well, the interactions with the between the teacher and the child.

[00:23:54] Speaker 05:
So we maybe need to let a trier fact figure that out, don't we?

[00:23:59] Speaker 00:
No, for the reason that undisputed facts here support probable cause.

[00:24:03] Speaker 00:
We have that Mr. Wright admits that there was spanking at the home and in fact that it occurred the day before the bruise in question.

[00:24:10] Speaker 00:
We also have the bruises themselves and Dr. Woolridge's opinion.

[00:24:15] Speaker 01:
Can I just ask you one final question?

[00:24:19] Speaker 01:
There was an agreement at some point to return the child to the home.

[00:24:27] Speaker 01:
I think that there was actual dismissal of the dependency by DCS.

[00:24:33] Speaker 01:
So can you just tell me factually what happened that caused DCS to ultimately dismiss its

[00:24:44] Speaker 01:
the dependency proceeding or to not pursue that any further.

[00:24:48] Speaker 00:
So there could be two different points in time that you're talking about.

[00:24:50] Speaker 00:
So the child was not immediately removed.

[00:24:52] Speaker 00:
There was a present danger plan in place, and it was only when the parents failed to follow that that the dependency proceedings ensued.

[00:25:00] Speaker 00:
The other point in time that you may be talking about is simply the dismissal of the full dependency proceedings.

[00:25:05] Speaker 00:
That's because the parents participated in family reunification services.

[00:25:10] Speaker 00:
So things like therapy and such, and happily the family has reunified in this case.

[00:25:17] Speaker 04:
All right, thank you, counsel.

[00:25:18] Speaker 04:
We've taken you over your time.

[00:25:21] Speaker 04:
We'll hear now from Mr. Sluetz.

[00:25:36] Speaker 03:
Please the court, my name is Tom Sluice, I represent Dr. Woolridge.

[00:25:40] Speaker 03:
And as you know, Judge Zips dismissed him from the case below because of qualified immunity.

[00:25:47] Speaker 03:
I agree that there are two issues to decide if that applies.

[00:25:50] Speaker 03:
One, is he eligible under the cases and B, and two, is he entitled to it.

[00:25:56] Speaker 03:
So Mr. Moore was attacking the eligibility part, pretty much saying no doctor has ever been given that.

[00:26:04] Speaker 03:
And of course, that's not exactly accurate.

[00:26:06] Speaker 03:
We have cited numerous cases to you in which we have health care providers of all ilk being granted.

[00:26:13] Speaker 04:
Was he a government employee?

[00:26:14] Speaker 03:
No, he was not.

[00:26:16] Speaker 03:
He was not.

[00:26:16] Speaker 03:
He is a private pediatrician who worked most of his time at Banner Hospital in Tucson in the emergency department.

[00:26:24] Speaker 03:
And he's a pediatrician.

[00:26:27] Speaker 03:
And he spends also some time teaching medical students and residents.

[00:26:32] Speaker 01:
But- What do we do with the concession, I think, as your friend on the other side calls it, but at least the representation from Dr. Woolridge that he was acting under color of state?

[00:26:43] Speaker 03:
Well, I'm sorry, did you ask me, was he acting under a color of state law?

[00:26:47] Speaker 01:
What do we do with his own statements that he was acting at the direction of law enforcement in conducting the metaphor?

[00:26:52] Speaker 03:
And I think, I mean, you know, that's the issue that we, when it was brought up in the trial court, we said it's probably a question of fact, but we don't need to worry about that.

[00:27:01] Speaker 03:
We can accept the fact that he was acting as a, he is a state actor and therefore could be liable for a constitutional violation if without any defenses.

[00:27:10] Speaker 03:
We're not really arguing that issue.

[00:27:12] Speaker 03:
I mean, that's because we won the case despite it.

[00:27:16] Speaker 04:
But if he weren't acting under color of state law, how would he have any colorful claim as a private citizen to qualify immunity?

[00:27:25] Speaker 03:
Why would he?

[00:27:25] Speaker 04:
How would he?

[00:27:27] Speaker 03:
Well, because a state actor means that he's acting on behalf of a governmental facility, in my opinion.

[00:27:35] Speaker 03:
And those are the people who get qualified immunity.

[00:27:39] Speaker 03:
If you're not a state actor, you're not liable for constitutional violations, and you don't need immunity.

[00:27:46] Speaker 03:
So this is a case where he is working with law enforcement under the Pima County protocols

[00:27:58] Speaker 03:
helped stamp out child abuse, is what it was.

[00:28:00] Speaker 03:
And what he does, he worked part-time over at the Children's Advocacy Center, doing medical exams, and there were, as we described,

[00:28:12] Speaker 03:
They were visual exams to see if there was any evidence of abuse, meaning physical abuse.

[00:28:18] Speaker 03:
There are also cases where there's a claim of perhaps sexual abuse, but that wasn't this case, so there's no need to do an invasive examination.

[00:28:27] Speaker 01:
My understanding is that the medical examination includes, the forensic medical examination includes

[00:28:34] Speaker 01:
the genital exam, correct?

[00:28:36] Speaker 03:
I'm sorry, I couldn't quite hear that.

[00:28:37] Speaker 01:
The medical exam includes the genital exam.

[00:28:41] Speaker 01:
It just wasn't done.

[00:28:42] Speaker 01:
In fact, there was an attempt to do that here.

[00:28:44] Speaker 01:
It wasn't done because the child resisted.

[00:28:46] Speaker 03:
Yeah, he didn't do it.

[00:28:47] Speaker 01:
I mean, there was no... No, he didn't do it because the child resisted.

[00:28:50] Speaker 01:
He was attempting to do it, correct?

[00:28:52] Speaker 03:
He was.

[00:28:53] Speaker 03:
Yes.

[00:28:54] Speaker 01:
The reason I'm asking this question because I take your point, which is there were no allegations of sexual assault here, but the medical exam that's conducted without notice to the parents or court order includes this type

[00:29:07] Speaker 01:
of exam that is.

[00:29:10] Speaker 03:
It's a standard part to at least, as he said in his deposition, spread the buttocks and look at the anus.

[00:29:15] Speaker 03:
That's what he said.

[00:29:16] Speaker 01:
Right.

[00:29:16] Speaker 01:
He didn't do that though.

[00:29:17] Speaker 01:
Any allegation of sexual assault, this is this part of the exam.

[00:29:21] Speaker 03:
But it's still a visual exam to look to see if there's any bruises because if you're worried about the child being hit with an object, then you want to check all parts of the body, including that.

[00:29:33] Speaker 04:
So what do we make of the

[00:29:36] Speaker 04:
form that was provided almost seemed like a purported authorization, but the doctor writes no guardian present on that.

[00:29:46] Speaker 03:
This is the interesting part of it is because, as you know, the detective who picked up the child from school upon the concerns of the school nurse and the teacher

[00:29:57] Speaker 03:
called himself the guardian and signed him in to the CAC as the legal guardian for the child.

[00:30:04] Speaker 03:
Now, when it came to time to take a medical history, Dr. Woolridge said, I can't do a medical history because there's no guardian present, really meaning there's no parent present.

[00:30:13] Speaker 03:
But under his thinking, under what he knows under the Pima County protocols and the statutes of the state of Arizona,

[00:30:21] Speaker 03:
He believes that these peace officers should pick up children who are perhaps victims of abuse and bring them to him so he can do a visual examination on them.

[00:30:32] Speaker 03:
That he would, and that any issues of consent or that kind of stuff are stuff in the area of the medical, of the peace officer.

[00:30:42] Speaker 04:
He knew he was conducting the examination without any authorization from someone acting as a guardian.

[00:30:48] Speaker 03:
I'm sorry, did you say could he do that?

[00:30:49] Speaker 04:
He knew that he was conducting the examination without the authorization of anyone acting in the capacity of a guardian.

[00:30:57] Speaker 03:
No, he thought under the state statute, which gives the right, in fact, the duty to a peace officer to pick up a child and perhaps bring him to an examination, that that gives the... So the answer to my question was yes, that he knew that he was performing the examination without the authorization of a guardian.

[00:31:17] Speaker 03:
If you're talking about a legal guardian appointed by the court, sure.

[00:31:20] Speaker 03:
But under the system that was working at that time, the statute says that the police officer will do an investigation.

[00:31:31] Speaker 04:
How could a reasonable doctor who knows the law and knows what we've said about conducting examinations of children

[00:31:45] Speaker 04:
the parents being notified or consenting is not permitted.

[00:31:50] Speaker 04:
How could a reasonable doctor in that position believe that it was permissible to go ahead and do the examination?

[00:31:57] Speaker 03:
Because the statute authorizes it.

[00:32:00] Speaker 03:
The statute, the whole Pima County protocols talk about the peace officer bringing the child and bringing him to a medical examination for an examination.

[00:32:10] Speaker 04:
This is the rule I described, which we've said in the

[00:32:15] Speaker 04:
in the Wallace case in particular, is a constitutional rule.

[00:32:19] Speaker 04:
So how could anyone think that

[00:32:24] Speaker 04:
given that rule that we described in Wallace, that you can proceed to do it without parental contact.

[00:32:30] Speaker 03:
I'm not sure that Dr. Woolwich had read the Wallace case or the Mann case.

[00:32:36] Speaker 01:
As you stand before us today, you're not arguing that a state statute trumps these cases that are in the constitutional law.

[00:32:42] Speaker 03:
No, we're not arguing that at all.

[00:32:44] Speaker 03:
But does he know that?

[00:32:45] Speaker 03:
And the point is, when he went into the second issue.

[00:32:49] Speaker 04:
Well, his subjective, it's an objective test for qualified immunity.

[00:32:53] Speaker 04:
Absolutely.

[00:32:54] Speaker 04:
Any reasonable officer or doctor in his position, knowing the law, would recognize that what he's doing is unlawful.

[00:33:05] Speaker 03:
No.

[00:33:05] Speaker 03:
I mean, I think clearly he wouldn't.

[00:33:07] Speaker 03:
He would think that what he's doing is lawful.

[00:33:09] Speaker 03:
Because he is doing, he is following the protocols, he is following the Arizona statute.

[00:33:15] Speaker 03:
He doesn't know that the Arizona statute doesn't trump

[00:33:18] Speaker 03:
violations of the U.S.

[00:33:21] Speaker 03:
Constitution, but it's been for years they've been working this way where he has called over from Banner to do an examination, a peace officer shows up with a child, he does the exam, he writes a report, and then he leaves.

[00:33:37] Speaker 03:
That's his involvement.

[00:33:39] Speaker 03:
Whether the peace officer has gotten consent of the parents or a court order is not in his ballpark.

[00:33:45] Speaker 05:
But what's frightening to me about what you're saying is that

[00:33:48] Speaker 05:
is that a police officer shows up, asks, where's the guardian?

[00:33:52] Speaker 05:
And the officer says, oh, I guess I'm the guardian.

[00:33:55] Speaker 05:
There you go.

[00:33:56] Speaker 05:
Go conduct your full examination.

[00:33:59] Speaker 05:
Is that how you, is that what you're saying?

[00:34:01] Speaker 03:
That's, well, remember the peace officer signs off as the guardian.

[00:34:07] Speaker 03:
Dr. Woolridge sees that and knowing that's the system, the way it's been working over for some years without objection.

[00:34:13] Speaker 04:
I thought it was clear in the answer to the question before that Dr. Woolridge did not think he was acting with it.

[00:34:21] Speaker 04:
the consent of anyone acting as a guardian.

[00:34:23] Speaker 04:
And that's why he wrote, no guardian present.

[00:34:26] Speaker 03:
No, that's not why he wrote that.

[00:34:27] Speaker 03:
He wrote that with regard to filling out the portion of the medical history.

[00:34:31] Speaker 03:
That he couldn't fill it out because there was no guardian present.

[00:34:34] Speaker 03:
That there's no somebody who has a normal

[00:34:39] Speaker 03:
aspect over the child to ask a question of, but to do the examination, the examination was authorized.

[00:34:46] Speaker 01:
I think that's right, sir.

[00:34:48] Speaker 01:
I'm looking at the authorization to perform forensic medical examination, and Detective Johnston signed their guardian.

[00:34:56] Speaker 01:
Right.

[00:34:56] Speaker 01:
On the same form, Dr. Woolridge noted, no guardian present.

[00:35:00] Speaker 03:
Yes, but if you look, it's down by the medical history portion.

[00:35:04] Speaker 03:
And I mean, it may not be a big distinction, but the point is that Dr. Wilrich has been doing these exams and has had other physicians at the SACAC been doing these exams under these same conditions.

[00:35:16] Speaker 03:
He had no reason to think that that was improper.

[00:35:19] Speaker 01:
I mean, because I have one final question, and I know you're out of time.

[00:35:23] Speaker 01:
You're on borrowed time from Judge Collins now, but I will just get in this last question.

[00:35:29] Speaker 01:
You would agree that there was no exigency in this case?

[00:35:32] Speaker 03:
I agree with you.

[00:35:33] Speaker 03:
It's not an exigency thing.

[00:35:35] Speaker 03:
All right.

[00:35:36] Speaker 04:
All right.

[00:35:38] Speaker 04:
Thank you, counsel.

[00:35:39] Speaker 03:
All right.

[00:35:39] Speaker 04:
Thank you, Your Honor.

[00:35:40] Speaker 04:
I'll let you go over your time, and we'll hear rebuttal now.

[00:35:48] Speaker 02:
Thank you, Your Honors.

[00:35:49] Speaker 02:
To return to Judge Desai's question, and to your question, Judge Collins, I ask the court to look back at Mann, because in Mann, the children were already in the custody, the legal custody of the state at the time these medical examinations were conducted.

[00:36:08] Speaker 02:
And the court concluded that was irrelevant

[00:36:11] Speaker 02:
The parent who has permanent responsibility and permanent custody of the child must be notified and must give consent in addition to a court order.

[00:36:24] Speaker 02:
You can't get a court order and not notify the parent.

[00:36:27] Speaker 02:
You still have to notify the parent and give that parent the opportunity to consent to your child being subjected to an anal examination.

[00:36:41] Speaker 04:
Finally, to return to my colleague, the Attorney General's statements regarding Talamantes and Francisco, we are now hearing what- The concern I have is that how do we not end up in a system where every time that a child's service worker makes a mistake in an application that

[00:37:10] Speaker 04:
They're not going to have a suit that, well, that's an incorrect statement.

[00:37:15] Speaker 04:
Therefore, it's a false statement.

[00:37:16] Speaker 04:
I think you could infer that it was intentional.

[00:37:19] Speaker 04:
And therefore, there isn't qualified immunity.

[00:37:22] Speaker 04:
And they get sued.

[00:37:25] Speaker 04:
How do we not end up in this case?

[00:37:30] Speaker 02:
Well, this court has repeatedly given the test under which such a case is brought.

[00:37:37] Speaker 02:
In this case, there are multiple issues regarding misrepresentations and omissions.

[00:37:43] Speaker 02:
For example, and this is so critical, Your Honor, in this case, Brian Wright informed Talamantes and the police informed Talamantes that this child had had previous little boy bruises from

[00:38:00] Speaker 02:
from roughhousing over the course of time.

[00:38:03] Speaker 02:
And Brian informed Talamantes that the bruises, other than the one mark that was on the back of the leg, that the parents informed Talamantes was caused by the two children play fighting with Hot Wheels tracks the night before.

[00:38:16] Speaker 02:
All of those other bruises were consistent with roughhousing, which was consistent with the police finding.

[00:38:22] Speaker 02:
And so this was all known, and this was concealed.

[00:38:26] Speaker 02:
Now, Your Honor, the Costantage case is addressed if a mistake is made, then it's not actionable.

[00:38:35] Speaker 02:
But the Costantage case, and in this particular case, Scanlon, line up exactly with misrepresentations which are actionable.

[00:38:45] Speaker 02:
It's for a jury to decide.

[00:38:47] Speaker 01:
Counsel, procedurally, this case came to us because there was a partial motion for summary judgment by plaintiffs.

[00:38:53] Speaker 01:
and the district court granted qualified immunity to Dr. Woolridge.

[00:38:57] Speaker 01:
There was no affirmative motion for summary judgment on qualified immunity grounds by Dr. Woolridge, correct?

[00:39:05] Speaker 02:
That's correct.

[00:39:06] Speaker 01:
Okay, so would there be an opportunity to raise a qualified immunity?

[00:39:13] Speaker 01:
I guess maybe this depends a little bit on how a ruling from this court might come down, but I'm curious to know sort of usually there are multiple

[00:39:22] Speaker 01:
points in time where a defendant who is seeking qualified immunity may assert that right.

[00:39:29] Speaker 01:
What would that look like in this case?

[00:39:31] Speaker 02:
Not in this case, your honor, because there's absolutely no dispute of genuine issue of material fact on that.

[00:39:37] Speaker 02:
This court is in the best position, and this court should make that decision, I believe, because there is no sense in returning this for more of the same.

[00:39:47] Speaker 04:
All right.

[00:39:47] Speaker 04:
Thank you, counsel.

[00:39:48] Speaker 02:
Thank you.

[00:39:48] Speaker 04:
The case just argued will be submitted.