[00:00:00] Speaker 02:
I can be heard?

[00:00:01] Speaker 02:
Yes.

[00:00:01] Speaker 02:
We have one case this morning on Zoom, 24-4074, Blackmore versus Carlson.

[00:00:09] Speaker 02:
I see the attorneys are present, so if the attorney for appellant would make his appearance and then proceed, please.

[00:00:18] Speaker 00:
Thank you.

[00:00:19] Speaker 00:
Robert Sykes for the appellant.

[00:00:21] Speaker 00:
I also have with me

[00:00:22] Speaker 00:
Co council, Peter Sorenson, let's see.

[00:00:26] Speaker 00:
He's can't see him, but he's there.

[00:00:30] Speaker 00:
He's there.

[00:00:38] Speaker 00:
Please proceed.

[00:00:39] Speaker 00:
Okay.

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

[00:00:41] Speaker 00:
To please the court.

[00:00:44] Speaker 00:
First of all, thank you for rescheduling this.

[00:00:47] Speaker 00:
I know it was postponed about a month ago and not making its way three or four months.

[00:00:51] Speaker 00:
Do appreciate that very much.

[00:00:53] Speaker 00:
Your honors, I have practiced law in Utah for now 50 years.

[00:00:59] Speaker 00:
I'm going into my 51st year.

[00:01:02] Speaker 00:
And I've had many jury trials here in federal court, state court, and many civil rights cases.

[00:01:09] Speaker 00:
Okay.

[00:01:09] Speaker 00:
And a lot of these cases have video, not all.

[00:01:13] Speaker 00:
but many of them do have, some have more than others.

[00:01:17] Speaker 00:
But I've never had a case yet where the video is so complete as it is in this case.

[00:01:26] Speaker 00:
I think the video shows here about 98% of what's important.

[00:01:31] Speaker 00:
What you don't see in the video is a middle-aged hotel owner who gets a call at 1.40 in the morning, who's never been arrested.

[00:01:41] Speaker 00:
I spent the whole day cooking for a funeral of one of her relatives who's exhausted.

[00:01:46] Speaker 00:
You don't see that.

[00:01:48] Speaker 00:
But what you do see is an empty lot hotel lobby at 1.40 in the morning with zero members of the public there.

[00:01:58] Speaker 00:
You see a broken door that's been kicked in by a guest.

[00:02:02] Speaker 00:
There's no crime alleged and no crime shown by Danielle.

[00:02:06] Speaker 00:
This is a citizen assist call to get a locked out guest back into his hotel room.

[00:02:14] Speaker 00:
You see an arrestee who's committed no crime, never committed a crime, has no weapon, makes no threats, makes no aggressive moves, is not escaping.

[00:02:28] Speaker 00:
And the key facts regarding the resisting claim and the excessive force claim occur in 52 seconds.

[00:02:38] Speaker 00:
All very well shown by Officer Carlson's body camera.

[00:02:41] Speaker 03:
Did Mr. Brangham commit a crime?

[00:02:44] Speaker 00:
Pardon me?

[00:02:45] Speaker 00:
Did Mr. Brangham commit a crime?

[00:02:47] Speaker 00:
Well, yes.

[00:02:49] Speaker 00:
He kicked in a door.

[00:02:51] Speaker 00:
These were sliding doors, and he kicked it sideways so he could get in, even though there was a phone three feet to his left where he could have called from the breezeway.

[00:03:04] Speaker 00:
Mr. Brangham did commit a crime.

[00:03:09] Speaker 02:
Mr. Sykes, I understand, as you indicate, a lot of the information here is shown on the video.

[00:03:16] Speaker 02:
But ultimately, for, I think, our purposes, we need to put those facts in the context of the framework of qualified immunity.

[00:03:25] Speaker 02:
And one issue that arises, I think, for you in that context is the question of whether even if there were a constitutional violation,

[00:03:34] Speaker 02:
That violation was clearly established law in 2020 when these events occurred.

[00:03:40] Speaker 02:
And so I'm sort of struggling on both claims that you have, both the unlawful seizure and the excessive force to find a basis for clearly established law in this situation.

[00:03:53] Speaker 02:
as I understand it for your excessive force claim, you were relying principally or at least in significant part on Graham itself.

[00:04:04] Speaker 02:
And at least we have case law that suggests that's somewhat problematic.

[00:04:09] Speaker 02:
So do I understand correctly you are relying on Graham for your excessive force claim?

[00:04:15] Speaker 00:
Yes, Your Honor.

[00:04:16] Speaker 00:
I think that what you see here

[00:04:21] Speaker 00:
with these facts on the excessive force claim, you have a situation where a person has committed no crime, is in their own hotel room.

[00:04:35] Speaker 00:
And I think that's clearly obvious.

[00:04:39] Speaker 00:
You know, you had this case that I think might be helpful.

[00:04:44] Speaker 00:
I'm going to find it here real quickly.

[00:04:46] Speaker 00:
Yeah.

[00:04:50] Speaker 00:
Love v. Grasshorn, a 2025-2010 circuit case, very well written, and what you say there in headnote 11, but a factually similar case, isn't always required.

[00:05:06] Speaker 00:
Now, that's the mistake I think that Judge Newford, who's a very good judge, made.

[00:05:11] Speaker 00:
He wanted us to show factually similar cases on something that had obvious clarity.

[00:05:16] Speaker 02:
Well, I'm sure Judge Bachreck would appreciate the fact that you think love is well written, but I don't know whether you don't have to have

[00:05:26] Speaker 02:
directly on point case, but it does have to be a situation that the facts here are so obviously indicative of a violation of the law, and in this case, the excessive force aspect.

[00:05:41] Speaker 02:
And I looked at the video, and there are aspects of the video that are quite disturbing actually, but that doesn't necessarily

[00:05:51] Speaker 02:
speak to the question of whether, in this fact-intensive area of the Fourth Amendment, that the officers would have been on notice that they committed a crime.

[00:05:59] Speaker 02:
I mean, they committed an unlawful act.

[00:06:03] Speaker 02:
Let me change that.

[00:06:05] Speaker 02:
They didn't know at the time, did they, about what she was doing all night?

[00:06:11] Speaker 02:
Or they didn't know about what her status was as not having committed an offense, right?

[00:06:16] Speaker 02:
They didn't know any of that.

[00:06:17] Speaker 00:
Sure, they did.

[00:06:19] Speaker 00:
Your honor, they knew that she walked down that hallway for 52 seconds.

[00:06:23] Speaker 00:
Sure, they knew what?

[00:06:24] Speaker 02:
A telephone in her hand, telephone.

[00:06:27] Speaker 02:
And I said, they did not know anything about those circumstances you alluded to about what she was doing upstairs, right?

[00:06:34] Speaker 02:
True, true.

[00:06:35] Speaker 02:
Okay.

[00:06:36] Speaker 00:
Now, but you know, I would cite you, Cortez versus McCauley, was it McCauley versus Cortez?

[00:06:41] Speaker 00:
Cortez versus McCauley, which I think you were on that case, your honor.

[00:06:46] Speaker 00:
We all were, it was on bonk.

[00:06:49] Speaker 00:
Okay, but they went and got Mrs. Cortez, I guess it was, out of the bedroom and marched her out to a police car.

[00:07:02] Speaker 00:
And this court said there was no need to use any force on her.

[00:07:06] Speaker 00:
And here you've got a hotel owner, and I admit she's upset because her expensive door has been kicked in, but she makes no aggressive move.

[00:07:18] Speaker 00:
Now, I think that that's,

[00:07:19] Speaker 00:
obvious clarity that they can't use force on that woman.

[00:07:25] Speaker 00:
So is that your position?

[00:07:28] Speaker 03:
Is it your position that any force whatsoever is excessive when the person against whom the force is used has not committed a crime and isn't suspected of committing a crime at that point?

[00:07:41] Speaker 00:
In this case, yes, your honor.

[00:07:43] Speaker 00:
I don't think any force at all was justified on her because she hadn't done anything wrong.

[00:07:49] Speaker 00:
And by the way, you'll notice in the video that the pictures are in our brief.

[00:07:58] Speaker 00:
She's pointing at him, bringing him, and they're about four or five feet apart, and she's not attacking him.

[00:08:07] Speaker 00:
And so there's no need to use force at all.

[00:08:11] Speaker 00:
Any force here, like Cortez versus McCauley, is excessive.

[00:08:15] Speaker 00:
Because there was no need to use it in this case.

[00:08:18] Speaker 00:
Now, if she had been threatening him, maybe different.

[00:08:21] Speaker 00:
If she had attacked him, different.

[00:08:23] Speaker 00:
But she didn't do that.

[00:08:26] Speaker 00:
And then I want to address the resisting for just a minute.

[00:08:36] Speaker 00:
When you look at our brief and the pictures we had in our brief,

[00:08:40] Speaker 00:
There is really no resisting here.

[00:08:44] Speaker 00:
At least it's a matter for a jury to determine.

[00:08:49] Speaker 00:
They have control of her right hand and her left hand, she's pushed against the wall.

[00:08:57] Speaker 00:
When she walked down,

[00:08:59] Speaker 00:
I was talking to the officer and she complied, went in the back hallway, was talking to him.

[00:09:05] Speaker 00:
She says, I have procedures.

[00:09:06] Speaker 00:
Started to walk out to her front desk and he chest bumped her.

[00:09:12] Speaker 00:
And then he grabbed her in the left breast and pushed her against the wall.

[00:09:18] Speaker 00:
We show that in there.

[00:09:20] Speaker 00:
Okay.

[00:09:21] Speaker 00:
And she's terrified.

[00:09:22] Speaker 02:
Mr. Sykes, the resisting arrest is part of an unlawful seizure claim, right?

[00:09:31] Speaker 02:
Yes.

[00:09:31] Speaker 02:
Okay.

[00:09:32] Speaker 02:
There are two specific theories under which they could have lawfully seized or at least two specific theories are at play here.

[00:09:42] Speaker 02:
The resisting arrest and the disorderly conduct

[00:09:45] Speaker 02:
So you have to basically convince us that neither one of those theories would be applicable.

[00:09:53] Speaker 02:
Is that not correct?

[00:09:54] Speaker 02:
Yes.

[00:09:55] Speaker 02:
Okay.

[00:09:57] Speaker 02:
And so under the circumstances here, you're speaking of the resisting arrest.

[00:10:03] Speaker 02:
Well,

[00:10:04] Speaker 02:
If they, what about the statute and pointing me to the statute?

[00:10:09] Speaker 02:
What about the statute do you think reflects the fact that there was a constitutional violation?

[00:10:15] Speaker 02:
But more to the point, and let me focus on this point more to the point.

[00:10:20] Speaker 02:
What is the clearly established law that would allow them to know that they were violating her constitutional rights?

[00:10:30] Speaker 00:
Okay.

[00:10:31] Speaker 00:
On the disorderly conduct.

[00:10:34] Speaker 00:
We have very clear statutes and case law in Utah that talk about what a public place is.

[00:10:44] Speaker 00:
This was a locked hotel lobby.

[00:10:47] Speaker 00:
After hours, small hotel, 40 rooms, locked hotel lobby.

[00:10:52] Speaker 00:
And we argued that in the brief, I think very effectively.

[00:10:56] Speaker 00:
Also, there's a US Supreme Court case.

[00:10:58] Speaker 00:
It says just because something may be public at one time,

[00:11:02] Speaker 00:
I wasn't in that case again, the Lloyd case, that may be public at one time, doesn't make it public all the time.

[00:11:10] Speaker 02:
I thought the district court itself acknowledged that the law was not entirely clear in this area, did it not?

[00:11:16] Speaker 00:
As a waste of public place?

[00:11:19] Speaker 00:
It held that it, no, the district court held, and this is not appealed, that this was not a public place, but it held that it wasn't clearly established.

[00:11:29] Speaker 00:
on that.

[00:11:30] Speaker 02:
Well, that's, well, okay.

[00:11:32] Speaker 02:
Well, that's, that's what I'm asking you.

[00:11:34] Speaker 02:
If the law is not clearly established that it was a public place, then how would the officers have been violating clearly established law in the context of the disorderly conduct theory?

[00:11:49] Speaker 00:
The district court held

[00:11:52] Speaker 00:
erroneously that the law wasn't clearly established.

[00:11:56] Speaker 00:
We think it was clearly established based upon the statutes and the case law.

[00:12:01] Speaker 00:
It was clearly established that this was not a public place at that hour of the morning.

[00:12:06] Speaker 02:
What is your best case that the law was clearly established that on the public place aspect of this?

[00:12:16] Speaker 00:
Well, I think, Your Honor, I cited a number of them.

[00:12:21] Speaker 00:
If you look at page 35 of our brief, I would say the best one is the Gallegos case or Gallegos case that talks about a clubhouse and apartment building may be a public place during the day at four o'clock in the morning that takes on a different character.

[00:12:43] Speaker 00:
Now, there are other cases we cite there.

[00:12:47] Speaker 00:
And I think that the Lloyd case on page 37, property does not lose, it's the US Supreme Court case, does not lose its private character merely because the public is generally invited to use it for designated purposes.

[00:13:07] Speaker 00:
And so I think those are two very good cases.

[00:13:10] Speaker 00:
And I think Judge Neuffer made an error there.

[00:13:14] Speaker 03:
Let me ask you, backing up just a little bit, when did the seizure first occur?

[00:13:25] Speaker 00:
It occurred 52 seconds after he saw her walking down the hall when he chest bumped her, grabbed her breast and pushed her into the wall.

[00:13:36] Speaker 00:
So before the handcuffing.

[00:13:38] Speaker 00:
Yes.

[00:13:38] Speaker 00:
Oh, yeah.

[00:13:39] Speaker 00:
Yeah.

[00:13:39] Speaker 00:
And by the way, he never told her she was under arrest for 12 seconds.

[00:13:44] Speaker 00:
12 seconds.

[00:13:46] Speaker 00:
So, oh yeah, well, someone's telling me the Casey case, that's one of your cases, but I'd like to save my last minute and a half if I could for rebuttal.

[00:13:59] Speaker 00:
Thank you.

[00:14:03] Speaker 01:
Council, please.

[00:14:05] Speaker 01:
Thank you.

[00:14:05] Speaker 01:
Good morning.

[00:14:06] Speaker 01:
And my name is Gregory Hool.

[00:14:09] Speaker 01:
I'm on behalf of the appellees today.

[00:14:11] Speaker 01:
May it please the court.

[00:14:14] Speaker 01:
When I was a JAG officer in the United States Navy, I had the opportunity here to, Justice Scalia, and he said, the only time you know you're not wasting your breath in oral argument is when you're answering the question.

[00:14:25] Speaker 01:
So I invite any questions the panel has from the outset, but I do think context here, especially in regard to qualified immunity, is key.

[00:14:38] Speaker 01:
Context is key.

[00:14:40] Speaker 01:
And if it's all right, I think I want to just review, just real briefly,

[00:14:44] Speaker 01:
the events of that morning to put things into context to help understand.

[00:14:50] Speaker 01:
uh, you know, what was happening here and why it really differs from any case that has been reported and certainly any case that, uh, plaintiff has cited in their briefs.

[00:15:02] Speaker 03:
Well, there's a question right off the bat and you're inviting them.

[00:15:06] Speaker 03:
Yeah.

[00:15:07] Speaker 03:
Is did Mr. Brigham commit a crime by kicking a door in?

[00:15:12] Speaker 03:
He did not.

[00:15:12] Speaker 03:
Would he have committed a crime if he had kicked the police department door open or your law office door open?

[00:15:18] Speaker 01:
Yes.

[00:15:19] Speaker 01:
Because the difference is he had a legal right to be in the hotel.

[00:15:22] Speaker 01:
He was a hotel guest.

[00:15:24] Speaker 01:
He had a legal right to be in the hotel.

[00:15:26] Speaker 01:
He didn't do any damage to the door.

[00:15:27] Speaker 01:
The door swung open on its hinges and was able to be put right back on its track later that morning.

[00:15:35] Speaker 03:
What I couldn't tell from the video is the door had been locked and after it was put back on its track, the officer waved his arm and it opened.

[00:15:42] Speaker 03:
I don't know if the lock got broken, which would kind of make sense that it would to have that kind of force against it.

[00:15:48] Speaker 01:
That I don't know, Your Honor.

[00:15:50] Speaker 01:
But I don't believe he committed a crime.

[00:15:52] Speaker 03:
What if he broke a lock?

[00:15:53] Speaker 03:
Would that be a crime?

[00:15:55] Speaker 01:
Pardon me?

[00:15:56] Speaker 01:
What if he broke the lock?

[00:15:58] Speaker 01:
If he broke the lock, I guess I don't know if there's an intent element in that crime, Your Honor.

[00:16:04] Speaker 01:
But he certainly was not intending to cause damage.

[00:16:07] Speaker 01:
He was intending to regain access to a hotel where he was a guest.

[00:16:13] Speaker 01:
But I'm not sure, Your Honor, how that plays into any of the issues before the court today with respect to qualified immunity.

[00:16:21] Speaker 01:
The police officers who arrived on the scene were not assessing that.

[00:16:26] Speaker 01:
They arrived for one purpose and one purpose only, to assist a guest

[00:16:31] Speaker 01:
who was trying to get back into his hotel room.

[00:16:33] Speaker 01:
They really didn't know anything else going on at that moment.

[00:16:36] Speaker 01:
Their purpose was just to assist a guest.

[00:16:39] Speaker 01:
They contacted the owner of the hotel, a person who identified herself as the owner of the hotel, who immediately flew into a rage.

[00:16:49] Speaker 01:
She was supposed to have been manning the lobby front desk, which is, the lobby's open 24 hours a day for business.

[00:16:56] Speaker 01:
That's an undisputed fact.

[00:16:58] Speaker 01:
It's undisputed she was supposed to be there, but she was instead upstairs in a room with her husband and was later determined by the officers and the sheriff deputy, everyone who interacted with her to be intoxicated.

[00:17:11] Speaker 03:
Was her BAC ever taken?

[00:17:14] Speaker 01:
No, these were just based on the smell of her breath and her volatile actions.

[00:17:20] Speaker 03:
Well, that goes so far, which is to say that she took a pretty good job

[00:17:26] Speaker 03:
about four back pedals and remained on her feet.

[00:17:30] Speaker 01:
Yes, she did.

[00:17:31] Speaker 03:
And she was coherent as far as what she was saying, which was reasonable.

[00:17:35] Speaker 03:
This man just kicked my door in, have him taken out of my hotel, which I think there's a Utah statute on that.

[00:17:43] Speaker 01:
Yeah.

[00:17:44] Speaker 01:
What we know, Your Honor,

[00:17:45] Speaker 01:
whether or not she was intoxicated, she flew into a rage the moment the police interrupted her upstairs.

[00:17:51] Speaker 03:
I don't know about that because she just disregarded them and wondered if they were really police and so forth.

[00:17:57] Speaker 03:
When she came downstairs is when the guest, as you call him, said that he'd kicked in the door.

[00:18:04] Speaker 03:
That's when she came downstairs and you might understand how that might upset someone.

[00:18:09] Speaker 01:
Absolutely.

[00:18:10] Speaker 01:
And she was upset from the get-go.

[00:18:12] Speaker 01:
As soon as, I mean, she was cussing at the police officers, the police officers were remaining calm on the phone, asking her to calm down.

[00:18:18] Speaker 01:
When she came into the lobby, Your Honor, the police officers' purpose changed from helping the guest to doing one thing, and that was maintaining a safe distance between Ms.

[00:18:30] Speaker 01:
Blackmore,

[00:18:31] Speaker 01:
who was clearly visibly upset and maybe justifiably so your honor, but very upset and trying to maintain safe distance between her and this guest at whom she was very upset.

[00:18:42] Speaker 01:
The problem arose when Ms.

[00:18:44] Speaker 01:
Blackmore refused to comply with multiple requests of the police officers to maintain that distance to stop to slow down

[00:18:52] Speaker 01:
And each time there was a request, she responded with no, no, no, no.

[00:18:58] Speaker 03:
Well, now, now things are jumbled because my recollection of the video is that she comes into the lobby area where Mr. Brangham is, as Mr. Sykes says, they were standing within each arm length of each other and there was not a confrontation.

[00:19:13] Speaker 03:
Then she is insisting remove this man from my hotel.

[00:19:17] Speaker 03:
Look what he's done to my property.

[00:19:19] Speaker 03:
And the officer Carlson then says, let's go back here to talk to her.

[00:19:26] Speaker 01:
Because she's too close.

[00:19:27] Speaker 01:
There wasn't a confrontation at the moment, but police officers are trained to avoid confrontations.

[00:19:32] Speaker 01:
Is that the purpose then?

[00:19:34] Speaker 03:
Is that why he took her separate place?

[00:19:36] Speaker 03:
He wasn't investigating a crime.

[00:19:38] Speaker 01:
He took her to create distance and then he wanted about the second part of my question though.

[00:19:44] Speaker 03:
He didn't take her away because he was investigating a crime that she might've committed.

[00:19:48] Speaker 01:
No, not at that moment.

[00:19:50] Speaker 01:
Not at that moment.

[00:19:51] Speaker 01:
Um, it wasn't until she refused to, frankly, she had already refused to multiple orders.

[00:19:58] Speaker 01:
But like what was it until she refused to pardon me.

[00:20:03] Speaker 01:
Like what?

[00:20:03] Speaker 01:
I don't, I don't want lawful orders were to stop and to go into the hallway.

[00:20:09] Speaker 01:
She says, no, she says no twice to go into the hallway.

[00:20:13] Speaker 01:
Finally, she relents.

[00:20:15] Speaker 01:
She relents to go into the and goes in the hallway, but then immediately turns.

[00:20:19] Speaker 01:
and comes back after she had been ordered to go in the hallway.

[00:20:22] Speaker 01:
The police were trying to just get a control of the situation.

[00:20:24] Speaker 03:
The word the officer used was let.

[00:20:31] Speaker 03:
It wasn't I order you, I direct you.

[00:20:34] Speaker 01:
The police were being very polite.

[00:20:36] Speaker 01:
They were trying to get control of the situation so they could actually listen to her to understand what was going on.

[00:20:43] Speaker 01:
They very well could have helped her had she just slowed down

[00:20:47] Speaker 01:
and talked to the police instead of being confrontational.

[00:20:51] Speaker 01:
If she had just stayed in the hallway and talked to the police and told them what was going on, we would not be here today.

[00:20:57] Speaker 03:
Instead, she defied the police officer's order.

[00:21:00] Speaker 03:
The guest had broken her door.

[00:21:02] Speaker 03:
That was explained.

[00:21:03] Speaker 03:
The guest admitted it.

[00:21:05] Speaker 03:
What was she supposed to calmly tell them that the police hadn't already been told?

[00:21:10] Speaker 01:
Well, Your Honor, this was a rapidly evolving situation.

[00:21:12] Speaker 01:
How much of what she had said in the midst of the police

[00:21:16] Speaker 01:
trying to avoid a confrontation, how much of that sunk in is hard to say.

[00:21:21] Speaker 01:
A reasonable officer is doing his best under the circumstances, trying to be polite, trying to be calm, trying to keep everybody separate.

[00:21:27] Speaker 01:
He asks her to go into the hallway.

[00:21:29] Speaker 01:
They could have had a conversation, but instead she darts back toward the lobby, the very place where he was trying to create safe distance.

[00:21:38] Speaker 01:
At that point,

[00:21:39] Speaker 01:
At that point, he's suspecting her of disorderly conduct.

[00:21:42] Speaker 01:
He's reasonably believing this is a hotel lobby.

[00:21:44] Speaker 01:
It's open 24 hours a day.

[00:21:46] Speaker 01:
This is a public place.

[00:21:47] Speaker 02:
It doesn't matter how many people are in the definition.

[00:21:52] Speaker 02:
Let me ask you about that assertion that it's undisputed that the lobby is open 24-7.

[00:21:58] Speaker 02:
If that is so, why the locked door?

[00:22:02] Speaker 02:
Why would there have been the need for the locked door that Mr. Brigham apparently knocked in?

[00:22:08] Speaker 02:
Please clarify that.

[00:22:10] Speaker 01:
We don't know, Your Honor.

[00:22:11] Speaker 01:
What we know is she went upstairs where she wasn't supposed to be.

[00:22:14] Speaker 01:
So she may have locked the door before she went upstairs.

[00:22:16] Speaker 01:
But we don't know why she locked the door.

[00:22:18] Speaker 01:
But it is undisputed.

[00:22:19] Speaker 01:
Danielle Blackmore herself in her testimony acknowledged that the hotel policies require that lobby to be open 24-7.

[00:22:27] Speaker 02:
And open.

[00:22:28] Speaker 01:
And not only open.

[00:22:29] Speaker 02:
Well, open in the sense of access from the outside.

[00:22:33] Speaker 02:
And access from the outside, right?

[00:22:35] Speaker 01:
That I don't know.

[00:22:36] Speaker 01:
It's open for business.

[00:22:38] Speaker 01:
open for business, and you can interpret that however you'd like.

[00:22:41] Speaker 02:
Well, that's open to, well, that's a distinct, that could be a distinction with a difference.

[00:22:46] Speaker 02:
If open for business means it's open for business for guests who are inside the building, that's different from open for business meaning that people can come in from the outside, right?

[00:22:59] Speaker 01:
Well, it's a hotel.

[00:23:00] Speaker 01:
It's open to receive guests.

[00:23:04] Speaker 01:
Now the guests, I don't know whether that means the door can't remain locked,

[00:23:08] Speaker 01:
But the point is the Utah definition is expansive.

[00:23:11] Speaker 01:
Its list of examples of places include apartment houses.

[00:23:17] Speaker 01:
All these places are private places that have public common areas.

[00:23:23] Speaker 01:
This hotel lobby had a vending area, had a business area, had

[00:23:29] Speaker 01:
Areas where either the guests could use and it was certainly an area where potential guests would come in and register and be booked into the hotel.

[00:23:37] Speaker 03:
Let me ask you a question on that since you're on the statute and that is.

[00:23:42] Speaker 03:
What the statute says public place include those.

[00:23:46] Speaker 03:
where, quote, the public or a substantial group of the public has access.

[00:23:52] Speaker 03:
Yes.

[00:23:53] Speaker 03:
And that verb tense is important to me, which and then we'd say shops.

[00:23:57] Speaker 03:
Shops are one of the examples.

[00:23:59] Speaker 03:
Has access and has access, connotes to me, is open for business.

[00:24:07] Speaker 03:
In other words, you can't say, well, the dress shop down the street

[00:24:11] Speaker 03:
You can go in there and buy a dress at noon.

[00:24:14] Speaker 03:
And so public has access at midnight.

[00:24:18] Speaker 03:
Has access.

[00:24:20] Speaker 03:
So the first question is, at that moment in time, did the public have access?

[00:24:25] Speaker 03:
It's not a 24 seven sort of thing.

[00:24:28] Speaker 03:
Yes, it was at the statute.

[00:24:30] Speaker 01:
For two reasons.

[00:24:32] Speaker 01:
Yes.

[00:24:33] Speaker 01:
First of all, the hotel has 44 guest rooms and a potential of 142 guests in it.

[00:24:40] Speaker 01:
Any of those guests have access at any time to the lobby.

[00:24:45] Speaker 01:
Beyond that, the hotel is open 24 hours a day for business.

[00:24:50] Speaker 03:
It says the public, not guests, not 82 guests or however many guests.

[00:24:55] Speaker 03:
It says the public has access.

[00:24:57] Speaker 03:
That's all of Hurrican, all of St.

[00:24:59] Speaker 03:
George and Salt Lake City if they drive down there.

[00:25:01] Speaker 01:
Correct.

[00:25:02] Speaker 01:
Anyone could have shown up.

[00:25:03] Speaker 01:
The hotel was open 24 hours a day for, for, for business.

[00:25:07] Speaker 03:
No, it's not.

[00:25:08] Speaker 01:
The door's locked.

[00:25:09] Speaker 03:
And if you want to, obviously these people need to sleep.

[00:25:13] Speaker 03:
They can't, they're not robots.

[00:25:15] Speaker 03:
And if you need to get in after hours and you have a good reason to, then there's a telephone number you call and you wake them up and they come down as the owners and they take care of business or they tell you, sorry, no rooms for us tonight.

[00:25:28] Speaker 01:
That's what happened that night, but that's not what the hotel policies required.

[00:25:34] Speaker 01:
The hotel policies are undisputed, Your Honor.

[00:25:36] Speaker 01:
The hotel is open for business 24 hours a day.

[00:25:39] Speaker 01:
But beyond this, what we're talking about is what a reasonable officer would have understood in qualified immunity.

[00:25:44] Speaker 01:
An opposing counsel has failed to show any case that would demonstrate that a hotel lobby is not a public place.

[00:25:54] Speaker 01:
Not a single case, this is a fact-intensive inquiry.

[00:25:57] Speaker 03:
Cited Gallegos, and I just gave you the statutory verb tense, and a statute can be clearly established law, can't it?

[00:26:07] Speaker 01:
Absolutely.

[00:26:08] Speaker 01:
And the statute, in my view, at least, Your Honor, talks inclusively about a host of different public places, private places that have a public common area, such as an apartment house, such as a business.

[00:26:21] Speaker 01:
This is a business.

[00:26:23] Speaker 01:
This is a business.

[00:26:24] Speaker 01:
And even if we decide that the business is private, if the private business has a public common area like a hotel lobby, then

[00:26:33] Speaker 01:
it falls squarely within the definition of Utah statute.

[00:26:38] Speaker 01:
So the statute does not provide clearly established law that this was not a public place, nor does Gallegos.

[00:26:47] Speaker 01:
Gallegos does not concern a hotel lobby.

[00:26:50] Speaker 01:
In the context of a Fourth Amendment seizure, the Supreme Court said that it has to be specific, unless it's just clearly obvious.

[00:26:57] Speaker 01:
And that's what

[00:26:58] Speaker 01:
Councils are arguing about with respect to love, but this is not a clearly obvious situation where he nor has nor has Council pointed to a case where there's a general principle that can be applied with clarity to this specific situation, not a single case.

[00:27:15] Speaker 01:
In fact,

[00:27:16] Speaker 01:
Plaintiff did not even engage that basis of the district courts ruling with respect to especially with respect to the unlawful the resistance the video it couldn't be clearer of showing someone resisting arrest.

[00:27:31] Speaker 01:
And therefore, and Daniel, of course, admitted it.

[00:27:35] Speaker 01:
Daniel admitted in her deposition, I asked, why did you resist the officer's attempts to handcuff you?

[00:27:40] Speaker 01:
And she said, because it was my right.

[00:27:42] Speaker 02:
Counsel, let me just interrupt.

[00:27:46] Speaker 02:
I'm sorry for a second here.

[00:27:47] Speaker 02:
I just want to clarify one point on this public place.

[00:27:51] Speaker 02:
One way to read that statute, which is not the way the district court read it, was to view this in categorical terms.

[00:28:00] Speaker 02:
In other words, places that categorically are places where the public has access, as opposed to being concerned with whether this specific entity at that specific time was open to the public.

[00:28:13] Speaker 02:
And so what I would ask in your knowledge, is there any case in Utah that focused on the categorical dimension of this statute?

[00:28:24] Speaker 01:
The answer, first of all, is I completely agree.

[00:28:27] Speaker 01:
I think it's the only way to read the statute as a categorical definition.

[00:28:32] Speaker 01:
Secondly, I'm not aware of any case in Utah that defines one way or the other about hotel lobbies.

[00:28:37] Speaker 01:
I think every party in this case has exhaustively searched that issue and has been unable to find anything.

[00:28:43] Speaker 01:
What we know is by way of category that offices and apartment houses and things similar to that with public common areas are considered public.

[00:28:53] Speaker 01:
What about shops?

[00:28:55] Speaker 01:
Oh, excuse me, Jake.

[00:28:56] Speaker 02:
Let me just ask you briefly on the idea of the arrest.

[00:29:02] Speaker 02:
Opposing counsel said that the officer had to let her know that she was under arrest as a matter of Utah law.

[00:29:09] Speaker 02:
Are you aware of any law that would have required that in those circumstances?

[00:29:13] Speaker 01:
No, I'm not.

[00:29:14] Speaker 01:
But the more important thing I think here is when Officer Carlson initially put handcuffs on her, he was not arresting her.

[00:29:23] Speaker 01:
He was detaining her.

[00:29:25] Speaker 01:
He was detaining her under the suspicion of disorderly conduct.

[00:29:28] Speaker 01:
She immediately began to resist at which point he said, okay, now you're under arrest.

[00:29:34] Speaker 01:
And he explained why.

[00:29:35] Speaker 01:
Um, so it went from a detention to an arrest.

[00:29:39] Speaker 01:
And the reason this is different from Cortez is Cortez was never the subject of, or never a suspect of a crime.

[00:29:47] Speaker 01:
It was a Terry stop.

[00:29:49] Speaker 01:
Um, and she was fully cooperative.

[00:29:51] Speaker 01:
Here, Danielle was uncooperative from the get-go, confrontational from the get-go.

[00:29:57] Speaker 01:
He tried everything he could, stop, stop, stop, no, no, stop, stop, calmly trying to deescalate the situation, and she continued to resist.

[00:30:07] Speaker 01:
Council, you're out of time, so please just wrap, finish your thought.

[00:30:10] Speaker 01:
Let me finish my thought here, including by charging back into the lobby.

[00:30:14] Speaker 01:
At that point, he had her in the alcove,

[00:30:16] Speaker 01:
Had she just, again, stopped, it would have been over, but she refused to stop.

[00:30:20] Speaker 01:
At that point, he has reasonable suspicion of disorderly conduct and moves in to put handcuffs on her, again, to just try to get the situation under control.

[00:30:32] Speaker 01:
That is what police officers have to do.

[00:30:34] Speaker 01:
They have to assume the worst.

[00:30:36] Speaker 01:
They have to keep the situation under control.

[00:30:39] Speaker 01:
She was out of control.

[00:30:40] Speaker 01:
He went to put handcuffs on her.

[00:30:42] Speaker 01:
Instead of complying, she resisted.

[00:30:45] Speaker 01:
She says she had the right to resist because it was an awful arrest, but we know that's not the case.

[00:30:51] Speaker 02:
All right, counsel.

[00:30:52] Speaker 02:
Thank you very much for your argument.

[00:30:54] Speaker 02:
And Mr. Rohn, if you would add 120 to whatever the remaining time is for the appellants, I would appreciate it.

[00:31:09] Speaker 02:
Okay.

[00:31:09] Speaker 02:
Thank you, Your Honors.

[00:31:11] Speaker 02:
Just wait one second.

[00:31:14] Speaker 02:
Okay.

[00:31:14] Speaker 02:
Now please proceed.

[00:31:16] Speaker 00:
Okay.

[00:31:16] Speaker 00:
Thank you, Your Honors.

[00:31:18] Speaker 00:
A couple of things.

[00:31:18] Speaker 00:
It's hard to show this, but on page five of our brief, the top photo, you can see there, Mr. Brangham walking through the door.

[00:31:29] Speaker 00:
That door right here is at a right angle.

[00:31:34] Speaker 00:
That's the broken door, supposed to be sliding east and west, looking north.

[00:31:42] Speaker 00:
So that was the background of what happened there.

[00:31:50] Speaker 00:
What I heard in the last 15 minutes or 16 minutes here has been a lot of discussion about contested issues of fact, you know, and that's why you have juries.

[00:32:03] Speaker 00:
to resolve these things.

[00:32:04] Speaker 00:
Now, I know that we have, you know, the requirement to show, you know, case law or obvious clarity under Graham.

[00:32:20] Speaker 00:
Here's what you said within the last six months.

[00:32:23] Speaker 00:
Officer Grasshorn, this is Grasshorn, Leveresses Grasshorn,

[00:32:28] Speaker 00:
points out that we lack any binding precedence on this issue, but a general rule may apply with obvious clarity.

[00:32:35] Speaker 00:
Here, the constitutional prohibition applies with obvious clarity based on common sense.

[00:32:41] Speaker 00:
Now, I think that is a very good way to look at this, common sense.

[00:32:49] Speaker 00:
It's common sense that this was not a public place.

[00:32:52] Speaker 00:
You can't arrest someone for disorderly conduct.

[00:32:55] Speaker 00:
It's common sense that you can't grab a woman by the left breast and push her against the wall and not have her be upset about it.

[00:33:07] Speaker 00:
That's not resisting, okay?

[00:33:10] Speaker 00:
And this is all common sense.

[00:33:12] Speaker 02:
And I think... Did the district court find that he had grabbed her breast?

[00:33:19] Speaker 00:
Oh, yeah.

[00:33:20] Speaker 00:
Well, he showed it.

[00:33:22] Speaker 00:
I had it right here a minute ago.

[00:33:23] Speaker 00:
Where is that?

[00:33:25] Speaker 00:
Well, I had his opinion here.

[00:33:28] Speaker 03:
You used the word chest, right?

[00:33:31] Speaker 03:
I'm sorry, Your Honor.

[00:33:32] Speaker 03:
The district court used the word chest.

[00:33:34] Speaker 00:
Yes.

[00:33:35] Speaker 00:
Well, it's right here on page of his, that's 159.

[00:33:41] Speaker 00:
Here, I've got it right here.

[00:33:43] Speaker 00:
If you look at document 159 page 20, there it is.

[00:33:49] Speaker 02:
That's not the question I asked you.

[00:33:52] Speaker 02:
The question I asked you is whether the court made a finding he grabbed her breast.

[00:33:56] Speaker 02:
I don't recall any such finding.

[00:33:57] Speaker 02:
I mean, he did touch her at her chest area when he stuck out his hand.

[00:34:04] Speaker 02:
That's a whole different thing, it seems to me, than grabbing somebody's breast.

[00:34:09] Speaker 02:
And if you don't have any basis for that, then we're stuck with the facts that the district court found.

[00:34:15] Speaker 00:
Well, Your Honor, I'm looking at the picture he had in here on page 18 of the brief showing it.

[00:34:25] Speaker 00:
That picture is not a finding, Mr. Saenz.

[00:34:28] Speaker 00:
Well, it's not, but it's something that was relied upon.

[00:34:31] Speaker 00:
And she says, he grabbed my breast.

[00:34:34] Speaker 00:
But see, that's a factual determination.

[00:34:37] Speaker 00:
It should go before a jury.

[00:34:39] Speaker 00:
I think a jury would be very concerned about that when they saw it.

[00:34:44] Speaker 00:
And so, you know, but I think the thing I want to just close with here is these are jury questions.

[00:34:55] Speaker 00:
This case should go to a jury of her peers and let them decide these issues.

[00:35:02] Speaker 02:
All right.

[00:35:03] Speaker 00:
Can I answer any more questions?

[00:35:06] Speaker 02:
Counsel, the case is submitted.

[00:35:08] Speaker 02:
Thank you for your arguments.

[00:35:09] Speaker 02:
Thank you very much.

[00:35:10] Speaker 02:
Thank you.

[00:35:11] Speaker 02:
Thank you, Your Honors.