[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the court. Courtney Sahara, student at the Sandra Day O'Connor College of Law, under the supervision of Attorney Greg Leslie, here today on behalf of the plaintiff appellant, Mr. Corey Drew. I would like to reserve three minutes for rebuttal, and I will watch my time.

[00:00:20] Speaker 00:
This case concerns whether a complaint states a sufficient claim for relief under Section 1983 where it alleges law enforcement officials abused their state power and participated in a retaliatory campaign against a citizen, subjecting him to an investigation, arrest, and prosecution, simply because he exercised his First Amendment rights in criticizing law enforcement for his unlawful detainment.

[00:00:47] Speaker 00:
The answer is yes, such a complaint is sufficient. The Constitution and Section 1983 do not permit such an abuse of the state punitive power, and Mr. Drew is entitled to proceed with his claim to prove it.

[00:01:01] Speaker 04:
Can I ask, try to simplify this, for at least my purposes? As to Mr. Johnson, the defendant, the district court, as I read its order, simply says these might have been sufficiently adverse actions to qualify Mr. as retaliatory under the First Amendment, but Mr. Drew failed to allege that they were undertaken without probable cause. And you argue in your brief, I think quite convincingly, that he really did allege that.

[00:01:34] Speaker 04:
He just, as a pro se complaint, he didn't put it in the same section as these claims. So as to, and that's the only basis on which the district court dismissed the claims against Mr. Johnson, correct?

[00:01:47] Speaker 00:
Your Honor, that is the most salient reason for the dismissal.

[00:01:50] Speaker 04:
It's not only the most salient. I read its order several times. It says the claims against Mr. Johnson all fail because of the absence of the allegation of probable cause. It actually assumes that there are sufficiently adverse actions to chill the exercise of First Amendment rights.

[00:02:07] Speaker 00:
Yes, Your Honor.

[00:02:08] Speaker 04:
Okay, so if we were to find that the court just erred by overlooking the allegation of lack of probable cause, we would then send the case back to the district court to address the other issues raised by the motion to dismiss, which as far as I can tell, it never addressed.

[00:02:29] Speaker 00:
That is correct. And Your Honor, there is one other error that was made by the district court.

[00:02:34] Speaker 04:
Well, there may have been lots of them, but that entirely disposes of, it goes back and We say to the district court, gee, you were wrong. There was an allegation of probable cause. Proceed from there, and you can move on with the case.

[00:02:48] Speaker 04:
So that strikes me as a relatively straightforward thing if we agree with you that lack of probable cause was sufficiently alleged. I want you to focus for me now on the claims against Mr. Bolts.

[00:03:01] Speaker 04:
The district court doesn't dismiss those for absence of an allegation of probable cause or lack of probable cause. but rather because I'm now going to list the six things the district court says that you allege that he did. Even if he did them, they were not sufficiently, they're not the kind of thing that would chill the exercise of First Amendment rights. Would you address that ruling for me?

[00:03:29] Speaker 00:
Yes, Your Honor, gladly. So as to Captain Boltz, the district court erred when it isolated his actions from the context of the investigation in its entirety. and thus determined that his actions were too de minimis to constitute an adverse action under the second element of a First Amendment retaliation claim.

[00:03:46] Speaker 03:
Counsel, I thought that what he was saying wasn't that the acts were de minimis, but that they were the type of acts that would not chill a person of ordinary firmness. And they were all internal to the police department. And if it hadn't been for this litigation...

[00:04:08] Speaker 03:
your client would not have been aware of them. So why is the district court wrong to say that internal discussions of that kind, even if very unflattering, would not chill a person of ordinary firmness?

[00:04:24] Speaker 00:
Your Honor, so the issue with the court's determination on that front was that under Ninth Circuit precedent in White v. Lee, The adverse action that Captain Boltz was tied to by his personal contributions to the investigation was its unreasonable scope and manner in its entirety.

[00:04:43] Speaker 04:
Well, that's what I'm trying to do. You don't allege that, though. And I think if you had, we'd have a different case. You allege, as I think to Hooten, that he did a lot of bad things, but he's not a defendant here. But as to Boltz, all you allege are these internal actions that Judge Graber spoke about.

[00:05:01] Speaker 03:
Check out the YouTube channel.

[00:05:03] Speaker 03:
Is there a photo? He's an unpleasant sovereign citizen and so forth, and we should have a threat assessment of him. All that's internal.

[00:05:14] Speaker 03:
So how does that chill a person who doesn't know of them?

[00:05:19] Speaker 00:
Your Honor, it's not that... The issue is that he did find out about these actions, and they were excessive and disproportionate to the underlying justification for the investigation into Mr. Drew. So...

[00:05:33] Speaker 04:
But that's not the issue. The issue isn't whether it was a terrible investigation, because then you'd run into other questions. The issue is whether or not, even if he did these six things, why did they, and that's all he's alleged to have done, how did those six things, if true, why were they likely to chill the exercise of your client's First Amendment rights?

[00:05:59] Speaker 00:
So there are a couple reasons. So first, the actions taken by Captain Boltz, specifically actions that treat him akin to a violent criminal when he was suspected at most of a misdemeanor like disorderly conduct, is that Captain Boltz's actions suggest a basis for possible future escalation by law enforcement in any interactions with Mr. Drew. But Captain Boltz not only requested that Mr. Drew's identity be widely circulated across all substations, he also suggested He also engaged a terrorism liaison officer to put out a bulletin further advising officers of Mr. Drew.

[00:06:36] Speaker 00:
And he also foreclosed Mr. Drew's ability to make any meaningful contact with the sheriff's office about his ongoing complaints as to the issue, as to the incidents that gave rise to Mr. Drew's charges.

[00:06:46] Speaker 04:
I agree that he did all those things. At least we have to assume he did them. Tell me again why, if he did those things, they are something that a district judge had to conclude from, Why was the District Judge Ernie concluding that it really didn't matter? Because those things would not have chilled the exercise of First Amendment rights.

[00:07:05] Speaker 03:
Leaving aside what the other defendants did, just looking at what he did and not what anybody else did, if that's all that had happened.

[00:07:15] Speaker 00:
So if we look at this court's precedent in White v. Lee, there the court stressed that Courts must look through the forms to the substance of government conduct and asserted that informal measures, such as the mere threat of invoking legal sanctions and other means of intimidation... Counsel, they didn't threaten him directly.

[00:07:34] Speaker 03:
That's what I'm... Focus on the facts here, not on the case law, okay?

[00:07:43] Speaker 03:
Divorced from what the other people did, Johnson and Putin or whatever the other person's name is, If all we had was what Bolts did, what would we be saying about that?

[00:08:00] Speaker 03:
And why would that chill his First Amendment rights?

[00:08:05] Speaker 02:
It sounds to me, Ms. Zahara, that your argument is really that it is that he ultimately found out about this information that allows you to tie the facts of this case to the White case that you're talking about, which is you can look to the form of the conduct because he did ultimately learn about it. But absent having learned about it because of the conduct of these other individuals, it wouldn't have on its face chilled his First Amendment rights because that conduct itself never led to any action.

[00:08:39] Speaker 02:
Do you agree with that?

[00:08:41] Speaker 00:
Your Honor, so when we look at the internal communications that Captain Bolts participated in, Yes, I can understand why the court might find that that's not a basis for finding he contributed to an adverse action.

[00:08:57] Speaker 02:
So let me ask you, focusing maybe on the individuals who did have action that resulted in some sort of external – that actually did end up touching your client's – conduct and existence, the reinvestigation, the arrest, and the prosecution by Johnson. I want to go back to that. I think you were starting to say that there are other than the probable cause issue, there are other issues that you take issue with in the district court ruling.

[00:09:29] Speaker 02:
Can you talk about that for a moment?

[00:09:33] Speaker 02:
Yes. As to Captain Bolt's conduct. I want to talk about Johnson. Johnson's conduct. I'm talking about Johnson. Yes. Yes. So I think Judge Hurwitz's question really went to the issue of the pleading probable cause. Beyond that, I think you were starting to say that there might have been other issues with the district court's ruling as it relates to Johnson's conduct. So I want to give you an opportunity to address the other parts of the district court ruling that you take issue with.

[00:10:04] Speaker 00:
Yes, Your Honor. So as to Johnson, the district court found that because Lieutenant Johnson had not personally went out and filed the charges against Mr. Drew and was not the official who did the prosecution for the charges on Mr. Drew, that he would not be tied to those adverse actions.

[00:10:24] Speaker 04:
Where did the court find that? It seems to me, I'm reading page 14 of the record, and the district court says... I assume for present purposes, or words like that, that Johnson's participation in the investigation, arrest, and prosecution were sufficiently adverse actions to meet the First Amendment test for retaliatory.

[00:10:50] Speaker 04:
But I don't find an allegation of absence of probable cause. So if you could direct me to where the district court said, and in any event, he wouldn't be liable because he didn't personally participate. I appreciate it.

[00:11:04] Speaker 00:
Yes, Your Honor, if you would just give me one moment to flip to it.

[00:11:14] Speaker 00:
So, Your Honor, what I was referring to in the court's order was their comments related to Mr. Drew's malicious prosecution claim, which was brought against Mr. Johnson and were not appealing. Not in front of us. The dismissal. Correct.

[00:11:30] Speaker 00:
However, the district court did analyze the malicious prosecution claim under the framework of Section 1983. So it aired.

[00:11:37] Speaker 04:
Maybe it aired in analyzing that claim. You're not appealing the rejection of that claim. So tell me again, now responding to, maybe I can narrow Judge Desai's question a little bit. With respect to the First Amendment retaliation claim, is there anything that the district court said other than there was no probable cause allegation that you think was wrong?

[00:12:08] Speaker 00:
Your Honor, as it relates to Lieutenant Johnson, no. So if the court does decide that Mr. Drew did adequately allege a lack of probable cause, that would cure the other issues that the district court made. Specifically, one of the errors was that the district court found that Mr. Drew did not allege sufficient facts to qualify for the Neves exception to requiring a plaintiff to allege a lack of probable cause.

[00:12:32] Speaker 04:
Right, but the Neves exception only. comes into play if there's an absence of an allegation of probable cause.

[00:12:37] Speaker 00:
Correct. So if the court is of agreement that Mr. Drew did adequately allege a lack of probable cause, the court would not need to reach that issue. So if the court did agree that the lack of probable cause was alleged, then that would cure the issues as to... Well, the district court seemed to believe that, too, because in the section on leave to amend...

[00:12:57] Speaker 03:
At the end of the decision, the court says you can cure this by alleging a lack of probable cause. So that seemed to be the only missing element in the district court's view as well.

[00:13:11] Speaker 00:
Yes, Your Honor, as to Lieutenant Johnson. But, however, as it relates to Captain Boltz, the district court did dismiss him from the First Amendment retaliation claim based on the finding that his actions were did not constitute an adverse action. So Mr. Drew filed this appeal to correct that error. And so simply amending based off of the district court's order would not have cured that issue because it is important that Captain Bolts is liable under this claim. He contributed meaningfully to the investigation.

[00:13:44] Speaker 00:
And Mr. Drew's prosecution and arrest... But where do you allege that?

[00:13:49] Speaker 04:
See, it may well be true.

[00:13:51] Speaker 04:
But all you allege is that he did these six things.

[00:13:57] Speaker 04:
Maybe it's five.

[00:13:59] Speaker 04:
If you'd allege that he was a driving force, he'd helped to initiate the investigation, that he passed on information, but you don't allege that. That's my concern. And I understand it was a pro se litigant, but the district court said, you want to amend to allege more facts? You could have. And it seems to me those facts...

[00:14:21] Speaker 04:
might well be important if alleged, but you've given up the opportunity to amend. So I'm still focusing on whether those six facts, the only facts alleged as to Bolts, are sufficient to meet the First Amendment test.

[00:14:39] Speaker 00:
Your Honor, so what's important is that when we look at this court's precedent from 1978 in Johnson v. Duffy, the court specifically discusses that Section 1983 specifically creates liability for every official who subjects or causes to be subjected any person to a deprivation of protected rights. And so in Johnson v. Duffy, in applying that language of Section 1983, noted that Personal participation is not the only predicate for Section 1983 liability.

[00:15:12] Speaker 03:
There has to be a causation. I think that's what Judge Hurwitz is getting at. And the allegations, I'm not sure how you read those allegations to incorporate a claim of participation of that kind in the ultimate problematic prosecution.

[00:15:43] Speaker 03:
Your Honor, I'm sorry, can you repeat the question? Well, you stated the legal standard, but I'd like to hear why you think that the specific allegations are sufficient under that standard of causing the prosecution here and the arrest and so forth, rather than just being background music?

[00:16:06] Speaker 00:
Yes, Your Honor. So, Captain Boltz, even in those six actions that were internal to the Yavapai County Sheriff's Office, he still personally and meaningfully participated in the investigation. He ordered Mr. Drew's identity to be circulated across all substations to put officers on notice of his identity. He requested a threat assessment on Mr. Drew from a bureau that specializes in the investigation of major crimes, and he foreclosed any meaningful opportunity for Mr. Drew to get in contact with the sheriff's office about his ongoing complaints that deal directly with the incidents that gave rise to Mr. Drew's arrest and prosecution.

[00:16:43] Speaker 02:
And so, under Johnson v. Duffy, Captain Boltz... Okay, counsel, you are over time, and I know you wanted to reserve some time for rebuttal, so we'll put two minutes on the clock for your rebuttal, but we'll hear from counsel on the other side now. Thank you, Your Honor.

[00:16:54] Speaker 00:
Thank you, Your Honor.

[00:17:02] Speaker 05:
Good morning, and may it please the court. My name is Jim Jollison, and I represent Lieutenant Johnson and Captain Boltz.

[00:17:09] Speaker 05:
And I might as well start out with Captain Boltz.

[00:17:13] Speaker 04:
It actually would be more helpful to me if you started out with your harder argument, and that's Johnson.

[00:17:21] Speaker 05:
But I wanted to start with the easier one.

[00:17:23] Speaker 04:
I know.

[00:17:25] Speaker 04:
As to Johnson, didn't it just, I mean, it's an understandable mistake. It's a pro se complaint, and it's, Hard to read. But doesn't this complaint allege the absence of probable cause?

[00:17:38] Speaker 05:
I don't believe it does under the Iqbal Twombly standard. And when I heard Judge Hurwitz say that, you know, in their brief, they convincingly, you know, say that they're... The allegation under the Iqbal Twombly is that you lacked probable cause.

[00:17:55] Speaker 04:
They say you lacked probable cause. It seems to me all the district court said was you never alleged it.

[00:18:02] Speaker 04:
District Court didn't say you alleged it, but it didn't meet the Iqbal Twombly standard. The District Court said, I don't find any allegation in the complaint of the absence of probable cause. Assuming that's wrong, which I think it is, let the District Court deal with all the other arguments. The allegation doesn't sufficiently meet Iqbal Twombly standards, or I win anyway because of X, Y, or Z. But I'm not sure why we need to take up those arguments if in fact the district court just made an error.

[00:18:35] Speaker 04:
A very good district judge, but she made an error.

[00:18:38] Speaker 05:
Yeah, and again, as I heard you raise the issue, it occurred to me. We clearly take the position in our answering brief that as to the investigation, the arrest, and the prosecution, that there was not an adequate pleading of the absence of probable cause.

[00:18:57] Speaker 04:
Right, but the district court didn't rule on that basis.

[00:19:00] Speaker 04:
District Court said, I'm assuming there was a sufficient allegation of the adverse public.

[00:19:09] Speaker 02:
Well, I don't even think she says she's assuming. She says, of these actions, Johnson's decisions to pursue an investigation and file charges likely qualify as adverse actions.

[00:19:18] Speaker 04:
That's probably better than saying assuming. But she addressed that issue and ruled against you and then said, but you win nonetheless because of the absence of a probable cause allegation. So, you know, I'm not sure why we should take up any issue except the absence of a probable cause allegation.

[00:19:39] Speaker 05:
And I agree with that.

[00:19:40] Speaker 02:
I know I included a lot of arguments, and I think they probably fall into sort of your— You're abandoning your arguments that Mr. Drew did not adequately plead the retaliatory investigation arrest and prosecution claims?

[00:19:54] Speaker 05:
I think those might go into Judge Hurwitz's grab bag of things that the district judge might tackle on remand with a little bit more clarity.

[00:20:04] Speaker 04:
You don't have to make it to us on appeal to make it to the district court.

[00:20:07] Speaker 02:
I would like you to make those, or at least argue if you're conceded those arguments that, you know, you, you think that they're adequately pled, then I, I mean, I don't think that you should abandon the argument because we may not be interested. I am actually for one interested, you know, in the argument that if Johnson decided what charges to file against Drew, I, I don't see how he didn't set into motion the subsequent arrest and prosecution. So, I mean, if you're telling me that you're conceding that he did adequately plead those claims, then that's fine.

[00:20:40] Speaker 02:
But since you've made the arguments that those are additional requirements, pleading requirements, are you now saying that those didn't need to be pled with any more specificity, that he's pled the elements of that claim?

[00:20:55] Speaker 05:
No, I don't agree with that, and I do stand by my arguments, and so I'd like to address both.

[00:20:59] Speaker 04:
So your position is I'm still making those arguments, but you may not need to, whether or not we reach them is a separate issue.

[00:21:08] Speaker 05:
I think that if there are reasons to support the district judge's ultimate conclusion.

[00:21:16] Speaker 02:
Because I think the district court concluded that the actions qualifies adverse actions, that Johnson's conduct qualifies adverse actions, and then ultimately ruled that Drew's failure to allege the probable cause factor was the basis of the decision.

[00:21:38] Speaker 05:
I don't know that the district court ruled on it as much as she assumed.

[00:21:43] Speaker 03:
Well, counsel, I would like to point you, as I did opposing counsel, to the portion at the end of the decision that deals with a leave to amend. The only amendment that the court said was required in order to state a claim with respect to Johnson was to include allegations of lack of probable cause.

[00:22:15] Speaker 03:
I'm on ER21 line 13 and 14. I think this is a be careful what you ask for question here.

[00:22:38] Speaker 02:
So perhaps you can make the argument that you think is appropriate to make. Well, of course, if you have concessions that you want to make, we'll accept those as well. But I don't mean to talk over you, Judge Graber, but I think the question is there are statements in the district court's order that make clear that they're that. The decision to dismiss was based entirely on the failure to allege probable cause, which under a lower sort of more lenient standard that's applied to pro se litigants is satisfied in this case.

[00:23:09] Speaker 02:
And that would all but resolve the question with respect to the conduct of Johnson on the other elements of the First Amendment claim.

[00:23:20] Speaker 05:
So I want to make sure I'm understanding what the issues are. It is clear... FROM THE DISTRICT COURT'S OPINION AND ALSO FROM OUR BRIEF THAT ON THE FIRST ELEMENT, WE ASSUMED ARGUENDO THAT HE ENGAGED IN FIRST AMENDMENT ACTIVITY. NOW, WHETHER, AND IT'S CLEAR ALSO FOR BOLTS THAT THE JUDGE SAID THIS IS DEPINIMUS.

[00:23:53] Speaker 05:
I THINK THE JUDGE'S A decision on Bolts was also correct under Mulligan versus Nichols.

[00:23:59] Speaker 01:
OK, well, maybe focus your argument with respect to Johnson.

[00:24:02] Speaker 05:
Let me go to Johnson. So she immediately goes on, I think it's page 14 and 15 of the record, to Johnson.

[00:24:12] Speaker 05:
And I don't see her making a substantive ruling on whether investigation is enough of a retaliation.

[00:24:19] Speaker 04:
Well, she says it very likely qualifies as an adverse action, which adverse action in this sense is a term that encompasses that it was retaliatory and was likely to chill First Amendment. So the question is, I guess, the judge as I was asking you, at least I think she was asking, what do you want us to do here? I mean, if you want us to address the issue of whether or not the district court correctly found that it met the other requirements, we can, but my guess is you're going to lose on that.

[00:24:56] Speaker 04:
Or do you just want to concede that the district court erred on the probable cause front and that we need not address today anything else, and you're always free to go back to the district judge and argue to her that, You know, now that second look, maybe you made a mistake here. So the question is, what rulings are you seeking from us?

[00:25:20] Speaker 05:
Well, I'm seeking the court to uphold what the district judge did.

[00:25:26] Speaker 03:
So, counsel, are you, I'm now confused.

[00:25:30] Speaker 03:
Are you conceding or not conceding that the complaint adequately pleads the absence of probable cause?

[00:25:42] Speaker 05:
I am stating that it does not adequately plead the absence of probable cause and that the judge gave Mr. Drew... Okay, I misunderstood.

[00:25:50] Speaker 04:
And if we reject that argument, are you seeking a ruling on anything else?

[00:25:55] Speaker 05:
Okay, so can I expand on that argument a little bit? I hear you telling me you're rejecting it. I think the way I read Mr. Drew's complaint is that he did an excellent job of pleading the absence of probable cause as to the the non-served defendants, Contreras and the guys that were involved in the original campground incident. But when it comes to pleading in the absence of probable cause regarding the investigation, the arrest, and the criminal charges, no, I disagree that he did anything other than provide conclusory allegations to that effect.

[00:26:35] Speaker 02:
Let me ask you a clarifying question. Is it your view that he needs to plead each and each one of those separately, the retaliatory investigation, arrest, and prosecution claims?

[00:26:48] Speaker 05:
Well, on the absence of probable cause, I think that that, and I argue it in the brief, applies to all of the acts, the investigation, the arrest, the criminal. They're closely enough tied that there has to be an absence of probable cause. If there was probable cause... that emanated from the investigation that supported the arrest, that supported the prosecution.

[00:27:11] Speaker 03:
But in each case, Counselor, he has wording like, these actions were baseless. These were filed without any factual evidence, with no facts or evidence. And in the introduction, there's kind of an overarching evidence statement in paragraphs 2 and 3 that the actions all were unfounded and all lacked probable cause. So I guess I'm having a hard time seeing why that's insufficient.

[00:27:44] Speaker 03:
A sham investigation. I mean, I don't know what more is required.

[00:27:50] Speaker 05:
Because, Your Honor, respectfully, I find it conclusory under equality. I understand your argument.

[00:27:58] Speaker 04:
Sure. And I tried to ask a different question before, and I suspect we just passed each other in the night on this. So let me ask the question this way. Let's assume that the three of us or two of us find that there was a sufficient allegation of the absence of probable cause.

[00:28:20] Speaker 04:
Now, my question to you is, Do you want us to take up your argument that the district court order should nonetheless be affirmed because the other elements of a First Amendment retaliation claim weren't sufficiently pleaded, or are you abandoning that alternative argument in front of us today?

[00:28:42] Speaker 05:
I think if the court found that the district judge was correct on the issue that there was not the absence of... No, no, that's not the one.

[00:28:51] Speaker 04:
That's not what I'm asking. I'm asking a different question. If the judge was correct on it, then we don't need to get to any other issues, it seems to me. If the judge was wrong on it, but you nonetheless want us to affirm the judgment of the district court, then we would then have to turn to other issues. And how we would rule on them, I don't want to guess. So my question is, if we find that the judge was wrong on probable cause... Are you urging that we nonetheless affirm based on some other grounds?

[00:29:25] Speaker 04:
If you are, then maybe we should get to them and tell you whether you're right or wrong. If you're not urging that today, then we don't have to get to them.

[00:29:38] Speaker 05:
I would say you would have to address the investigation. Is an investigation alone a First Amendment retaliatory action? We provided authority that it's not. The White case? I mean, this is not the white case.

[00:29:51] Speaker 04:
Even though the district court didn't address those issues. Even though, yes. You're asking us to affirm the district court on the basis of issues it never addressed.

[00:30:00] Speaker 05:
I believe these are bases that would lead to the correctness of the district.

[00:30:04] Speaker 04:
As a matter of sort of judicial economy, why should we do that?

[00:30:09] Speaker 03:
Were they raised below, is my question.

[00:30:12] Speaker 05:
Well, as a matter of judicial economy, Mr. Drews, he's in a rough spot. In March of 2024, he did a complaint against the campground defendants where he alleged all of the information that came out of the Hooten investigation and argued it established the basis for the claims against him.

[00:30:35] Speaker 02:
And then in April of 2024— I guess I'm confused, counsel. What does that have to do with the question I think that's pending, which is what specifically are the remaining arguments that you wish to advance for purposes of affirming the district court's judgment on alternative grounds?

[00:30:53] Speaker 05:
That the investigation, as it's alleged in this case, is not enough of a retaliatory action to support a claim that there are insufficient— allegations in the complaint that connect Johnson with the decision to arrest and the ultimate prosecution. Again, there is merely a conclusion that he had decided what charges should be filed. There's nothing in the complaint that says that he shaped the investigation, that he had any role in what came out of the And it's also alleged that there was an arrest warrant, I think, issued by the judge.

[00:31:38] Speaker 04:
As I understand your argument now, what you're basically saying is you don't want us to address the issues the district court didn't address, but rather to find that the district court erred in finding that Johnson's actions very likely would have constituted a First Amendment violation in the absence of...

[00:31:59] Speaker 04:
if the absence of probable cause had been alleged.

[00:32:02] Speaker 05:
If you don't agree with the correctness of the judge's ruling... We may or may not get to that, but I'm now clear you want us to get to that, if need be.

[00:32:16] Speaker 03:
And I'd like to just clarify where the arguments that you just listed in the last couple of minutes... arguments that were presented to the district court as an alternative ground for dismissal of the complaint.

[00:32:32] Speaker 05:
Can you be more specific, Judge Graber, just so I can answer your question?

[00:32:35] Speaker 03:
Well, you just were saying there were insufficient allegations connecting Johnson to these decisions.

[00:32:43] Speaker 03:
That's what you were just talking about. Is this an argument that you made to the district court as well?

[00:32:49] Speaker 05:
Yes.

[00:32:49] Speaker 03:
Okay.

[00:32:50] Speaker 05:
Yeah.

[00:32:51] Speaker 03:
Thank you, counsel.

[00:32:51] Speaker 05:
She didn't rely on them.

[00:32:53] Speaker 02:
Okay. Right. Okay. Thank you.

[00:32:57] Speaker 02:
Ms. Sahara, we'll put two minutes on the clock for you for your rebuttal.

[00:33:02] Speaker 02:
And maybe you can start by responding to, I think, some of these alternative arguments that were raised by Mr. Jellison that assuming we agree with you on the probable cause issue that it was adequately pled in the complaint, what argument Should we reach these alternative issues? Were they already reached by the district court? And what is your argument in response to Mr. Jellison's argument that he did not, that your client didn't adequately plead the retaliatory investigation arrest and prosecution claims separately?

[00:33:36] Speaker 00:
Your Honor, so let me first start with the appellee's statement that there was no connection with Lieutenant Johnson to the investigation, the decision to reinvestigate the incident and the decision to file charges. If we take a look at page 38 of the excerpts of record, paragraph 148, Mr. Drew specifically alleges that on December 29, 2022, Johnson ordered Officer Larry Hooten to go out and, quote, re-interview the two security guards and manager at Thousand Trails.

[00:34:09] Speaker 00:
The very next paragraph, 149, specifically demonstrates that Mr. Drew intended to plead a separate adverse action of retaliatory investigation, where he pleads, quote, Johnson's order was the start of the retaliatory investigation on plaintiff.

[00:34:25] Speaker 03:
Counsel, can I ask you, is there anything that connects Johnson more specifically, not to the reinvestigation, but to the decision to arrest and prosecute?

[00:34:40] Speaker 00:
Yes, Your Honor. So if you take a look at page 39 of the excerpts of record, paragraph 165, Mr. Drew alleges that, quote, Johnson decided the charges to file on plaintiff before who interviewed the alleged victims. And although it is not part of Mr. Drew's complaint, it is in the record, in the further excerpts of record, there was a dismissal order from the state court in Mr. Drew's underlying criminal matter relating to the charges that were decided to be filed by Lieutenant Johnson.

[00:35:11] Speaker 02:
Were there disorderly conduct and threatening, intimidating two of the charges that were ultimately filed?

[00:35:19] Speaker 02:
Yes, Your Honor. So the allegation also at ER 40, paragraph 169, is that what you're referring to right now when you're talking about Johnson's involvement in the decision to charge specific offenses?

[00:35:34] Speaker 00:
Yes, Your Honor, that and if we look at the further excerpts of record on page five, again, that criminal order, or I'm sorry, that order from the criminal matter, it specifically notes that the deputy testified that, quote, he was instructed by his supervising officer, ostensibly Lieutenant Johnson, as to what charges were to be filed against the defendant. And so it is plain, even in the criminal court's findings, that Lieutenant Johnson did make this decision about what charges were to be filed against Mr. Drew.

[00:36:07] Speaker 00:
And those were the charges that he was arrested on and the charges that he was prosecuted for.

[00:36:11] Speaker 04:
I understand that what you're now saying to us is, to the extent that the district court did rule that the other elements of a first offender retaliation claim were pleaded, you think the court was correct.

[00:36:27] Speaker 04:
A separate question is, You got a ruling in your favor on that one below. If we were to send back this case to the district judge and say you erred on the probable cause ground, do you want us to address the other part of this, or are you content to live with what the district court held?

[00:36:47] Speaker 00:
Are you referring to Captain Boltz's involvement in the matter?

[00:36:51] Speaker 04:
No, no, I'm still focusing on Johnson. In other words, the district court's already ruled in your favor, it seems to me, or likely indicated that it will. with respect to the other elements of a First Amendment retaliation claim as to Johnson. It's just said, you lose on probable cause. If we were to disagree with the you lose on probable cause issue, do you want us to address the district court's finding that you likely did, very likely sufficed on the other issues or not?

[00:37:21] Speaker 04:
Mr. — your opponent says he'd like us to address that. But we don't have to. So my question is, what's your desire?

[00:37:30] Speaker 00:
So I'm assuming you're asking about whether there was an adequately alleged lack of probable cause?

[00:37:36] Speaker 04:
No, no. I asked you to assume that we found that there was an adequately alleged lack of probable cause. Your opponent says, okay, but I still should win because the district court was wrong in finding that the other elements of retaliation claim were present to the extent the district court found that. And he says, and I'd like you to take that up.

[00:38:00] Speaker 04:
Strikes me if I were in your position, I would say you don't need to take it up. The district court will do my favor. I don't need you to take it up.

[00:38:07] Speaker 04:
But I don't want to make litigation decisions for you. Do you want us to take it up or not take it up?

[00:38:12] Speaker 00:
No, Your Honor. I would agree with you on that front that there's no need to take it up here. And I agree that, I mean, if we were to get into it, Lieutenant Johnson's investigation, arrest, and prosecution that he personally and meaningfully contributed to— And that's the argument you already made.

[00:38:27] Speaker 04:
You don't need to repeat that. I was just looking to see what you wanted us to do.

[00:38:34] Speaker 00:
Yes, Your Honor. So I was just going to reiterate, of course, that these were sufficient adverse actions as to element two of Mr. Drew's claim. If I could, just in closing, as you know, we're not asking the court to decide today that Mr. Drew wins on the merits and that they find that Captain Bolts and Lieutenant Johnson are liable. We simply are asking that Mr. Drew be entitled to proceed with his claim and get the benefit of a responsive pleading and discovery to develop his claim so that he can prove his claim on the merits.

[00:39:04] Speaker 02:
Thank you very much.

[00:39:06] Speaker 02:
And I would like to thank our supervising lawyer and the Law Student Council argument in this case. It's very helpful. And that concludes our session of the Ninth Circuit proceedings this week. I'd like to take a moment to thank our courtroom deputy and our other Ninth Circuit staff has been very helpful this week, so thank you very much. And with that, we are adjourned. Thank you very much.