[00:00:00] Speaker 03:
Garrett versus Denver Cares, and it's number 241363.

[00:00:07] Speaker 03:
And I think with that, we can begin that argument.

[00:00:13] Speaker 03:
As I understand it, is it Ms.

[00:00:18] Speaker 03:
Clark who has the appellant, or do I have that wrong?

[00:00:23] Speaker 00:
That's correct, Your Honor.

[00:00:25] Speaker 03:
Okay.

[00:00:27] Speaker 03:
On screen, they don't have

[00:00:29] Speaker 03:
I think they don't have your name quite right, unless.

[00:00:34] Speaker 00:
This is always an issue.

[00:00:35] Speaker 00:
Professionally, I go by my maiden name, Robin Levine.

[00:00:39] Speaker 03:
Oh, OK.

[00:00:40] Speaker 00:
By law, it's Robin Clark.

[00:00:41] Speaker 00:
And whenever I'm in federal court, I cause all kinds of problems with this.

[00:00:45] Speaker 00:
And if I could ask you just one moment, because the light in my office is flickering.

[00:00:49] Speaker 03:
Sure, sure.

[00:00:51] Speaker 00:
Give me just one moment.

[00:00:55] Speaker 01:
See, it's not just the lighting in my office.

[00:01:00] Speaker 01:
I was having similar issues earlier this morning.

[00:01:04] Speaker 00:
You have to know I'm not alone here.

[00:01:06] Speaker 03:
So it's Robin Levin.

[00:01:10] Speaker 03:
And Robin, B-Y-N.

[00:01:12] Speaker 03:
And the reason I noticed that is that's how my wife spells her name.

[00:01:15] Speaker 03:
So with that, let's go ahead and proceed.

[00:01:21] Speaker 00:
Thank you, Your Honor.

[00:01:23] Speaker 00:
Again, my name is Robin Levine.

[00:01:25] Speaker 00:
I represent the appellant, Brian Garrett, in this matter.

[00:01:31] Speaker 00:
And if possible, I'd like to reserve four minutes of my time at the conclusion.

[00:01:35] Speaker 00:
May it please the court?

[00:01:39] Speaker 00:
This case deals with standards for warrantless seizures, which are not based on criminal wrongdoing.

[00:01:46] Speaker 00:
It was dismissed on a Rule 12 motion, despite a number of factual disputes.

[00:01:52] Speaker 00:
Specifically, appellant Brian Garrett was taken from his home

[00:01:57] Speaker 00:
to a facility where he didn't want to be.

[00:01:59] Speaker 00:
The facility made no specific findings that he was a threat and didn't actually provide treatment.

[00:02:06] Speaker 00:
Instead, Mr. Garrett was laughed at, lied to, and threatened with extended detention and retaliation for saying that he didn't think this was constitutional.

[00:02:18] Speaker 00:
And insofar as the facility disagrees with these characterizations,

[00:02:23] Speaker 00:
That is exemplary.

[00:02:25] Speaker 00:
It is illustrative, the factual disputes here and why this matter was inappropriate for dismissal at the Rule 12 stage.

[00:02:33] Speaker 00:
What is clear and undisputed is that unlike typical seizures, which would be based on somebody making a finding that the detainee broke the law, this kind of seizure is supposedly for the detainee's own good.

[00:02:51] Speaker 00:
but the facility never engaged in the process it's required to engage with to determine whether he needed to be there.

[00:03:01] Speaker 01:
Let me stop you for just a second.

[00:03:02] Speaker 01:
So the purpose of the detention is not just for the detainee's own good, it's for the public's good as well, right?

[00:03:12] Speaker 01:
I mean, the determination is whether he's a danger to himself or others.

[00:03:20] Speaker 00:
Yes, Your Honor.

[00:03:21] Speaker 00:
It can be for either purpose, for his own good or for the good of others, but regardless, there were no specific findings on either point that he was a threat to himself or others, nor was the process which would determine that ever engaged in, which would be the emergency commitment process.

[00:03:40] Speaker 00:
So essentially, without any accusation of any criminal wrongdoing, Mr. Garrett gets caught up in this dragnet.

[00:03:48] Speaker 00:
He is brought to this facility where they seem to believe that just because he is brought there, that means that they can, without any formal process, any commitment process, keep him there.

[00:04:01] Speaker 00:
And that can't be so.

[00:04:03] Speaker 03:
Could I just ask Ms.

[00:04:06] Speaker 03:
Levin, just breaking this down, we have

[00:04:09] Speaker 03:
the Denver police go to the home, they're not parties to the case, correct?

[00:04:16] Speaker 03:
Correct.

[00:04:17] Speaker 03:
And then the emergency service patrol comes to pick him up, takes him to the facility.

[00:04:26] Speaker 03:
And so I wanted to ask you just a question at that point.

[00:04:28] Speaker 03:
And that is, is the probable cause that the emergency service patrol needed to take Mr. Garrett and transport him

[00:04:39] Speaker 03:
different from the probable cause that the facility would need to detain him there.

[00:04:46] Speaker 03:
In other words, you've sued, I mean, one of the defendants was part of the emergency service patrol.

[00:04:53] Speaker 03:
I'm just wondering if we evaluate that person or the patrol's conduct differently from the way we evaluate the facility's decision-making.

[00:05:03] Speaker 00:
Yes, Your Honor, you do evaluate them differently.

[00:05:07] Speaker 00:
Because it would, and I would say analogously to the way that you evaluate a officer's probable cause finding on a warrantless arrest versus the finding of probable cause by a magistrate.

[00:05:24] Speaker 00:
That the facility, once this person is in the facility,

[00:05:30] Speaker 00:
And it is reasonably feasible to engage with the process that allows for a neutral decision maker to consider the probable cause.

[00:05:41] Speaker 00:
They're required to have that neutral decision maker get involved in order to approve or disapprove of the emergency commitment and to look at the specific observations and decide whether or not those do justify a continued holding.

[00:05:58] Speaker 00:
And I should add to this, once they're at the facility, it's been enough time that it's reasonably feasible to get that review and they're aware that the person does not consent.

[00:06:11] Speaker 00:
And I think that the easiest place to look to see that that's the case is the regulations.

[00:06:18] Speaker 00:
So at page 27 of Denver CARES brief,

[00:06:24] Speaker 00:
They cite to a set of regulations that control Denver Cares and its conduct.

[00:06:31] Speaker 00:
And number six is for discharge planning.

[00:06:33] Speaker 00:
And what that says is that they need to have a policy in place such that if somebody is receiving services on a voluntary basis, which purportedly is what was happening with Mr. Garrett, despite his clear statements that he did not want to be there.

[00:06:49] Speaker 00:
If somebody is receiving services on a voluntary basis,

[00:06:53] Speaker 00:
and they say that they wanna go, and medical personnel doesn't think they should.

[00:06:59] Speaker 00:
What the regs say is, okay, then the facility has two options.

[00:07:02] Speaker 00:
Option one is to let them go, open the doors.

[00:07:07] Speaker 00:
This is a treatment facility, not a jail, let them go.

[00:07:10] Speaker 00:
Option two, if there is a reasonable basis to believe they're intoxicated and clearly dangerous, initiate the emergency commitment procedure.

[00:07:20] Speaker 00:
And I do think it's worth noting that the emergency commitment procedure, unlike say a Gerstein hearing, is a purposefully designed low barrier process.

[00:07:32] Speaker 00:
And what I mean by that is that, I think the most instructive case is Carberry, which is a Colorado case, but it's a determination that's made soon after the statute was passed.

[00:07:45] Speaker 00:
And the question there was, with this emergency commitment statute,

[00:07:50] Speaker 00:
Do we need a magistrate?

[00:07:52] Speaker 00:
If you want to hold somebody for being intoxicated, do you have to go get the magistrate out of bed?

[00:07:56] Speaker 00:
And what the Colorado court says is, no, this is supposed to be an alternative to that.

[00:08:02] Speaker 00:
But the Fourth Amendment process that's going to be provided, the equivalent of the Gerstein hearing, because these are necessarily going to be warrantless seizures,

[00:08:11] Speaker 00:
is that a neutral decision-maker being an administrator at the facility, and I'll represent Denver Cares has one there 24 hours a day, will approve applications so that somebody is gonna sit down, write out what the specific instances of conduct, what are the statements made, the non-conclusory bases to believe that the person could be clearly dangerous,

[00:08:39] Speaker 00:
And then a neutral decision maker who is on hand at the facility 24 hours a day needs to look at that and either approve or not approve the emergency commitment depending upon whether they believe there's probable cause to believe that there is intoxication and clear danger.

[00:09:01] Speaker 03:
Let me make sure I understand the argument.

[00:09:06] Speaker 03:
Are you saying that

[00:09:08] Speaker 03:
What Denver Cares needed was something akin to a magistrate to make the decision to keep Mr. Garrett there.

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

[00:09:20] Speaker 03:
What we are saying... And are you saying they don't have such a person doing that?

[00:09:26] Speaker 03:
Can't the intake people make that decision?

[00:09:29] Speaker 00:
They cannot because their behavioral health tax and nurses and the third party administrator for purposes under the statute, as I understand it, has a different position.

[00:09:42] Speaker 00:
But we are saying they do have that person there.

[00:09:45] Speaker 00:
But the way this place operates.

[00:09:48] Speaker 03:
They do have the person there.

[00:09:49] Speaker 03:
Who's that?

[00:09:51] Speaker 00:
I believe the head nurse is one of them.

[00:09:55] Speaker 00:
That's who we depose.

[00:09:57] Speaker 03:
Were these arguments, did you make these arguments in your brief?

[00:10:01] Speaker 00:
Yes, Your Honor.

[00:10:03] Speaker 03:
Well, let me ask you this.

[00:10:05] Speaker 03:
They get Mr. Garrett to Denver Cares and his blood alcohol level is 0.196.

[00:10:15] Speaker 03:
So why isn't that alone enough for a reasonable concern about dangerousness, at least to himself?

[00:10:25] Speaker 03:
because that's a pretty high blood alcohol level.

[00:10:29] Speaker 03:
What's unreasonable about holding him at least for some period of time at that point.

[00:10:37] Speaker 00:
Your honor, I think that there are people who at that BAC would be dangerous and folks that may not be.

[00:10:44] Speaker 00:
And that's a factual dispute as to whether or not that's clear danger and probably a factual dispute that involves not only additional information

[00:10:53] Speaker 00:
about Mr. Garrett, but perhaps even information from a professional in the field.

[00:10:58] Speaker 00:
I don't think that it's... I think it's beyond the purview of the court, as the trial court did, to step in and make that determination, which realistically is supposed to be made by, you know, somebody with experience and knowledge in the field.

[00:11:17] Speaker 03:
But beyond... Well, isn't that what the intake people are?

[00:11:20] Speaker 03:
I mean, they do have experience.

[00:11:23] Speaker 03:
They deal with this on a daily basis.

[00:11:26] Speaker 03:
They're making these decisions all the time.

[00:11:29] Speaker 03:
They're trained to make these decisions.

[00:11:31] Speaker 03:
And why would court second guess the reasonableness of that?

[00:11:37] Speaker 00:
So I want to step back very quickly because I do have an answer to that and I want to make sure that I've addressed an earlier question that feeds into this, which is the way that things work at this facility.

[00:11:48] Speaker 00:
The problem is that this facility, it has the administrator on hand, it has the time and the resources to do the emergency commitment it's supposed to do if somebody doesn't consent.

[00:11:59] Speaker 00:
But the way that it works is that when somebody comes in,

[00:12:02] Speaker 00:
and we allege in order to avoid having to actually make probable cause determinations on a case by case basis what they do is they presume that everybody who comes in no matter how they come in volunteer to be there is consenting to the detention in the drunk tank and because of that the folks at intake they're not tasked with documenting this sort of specific non-conclusory

[00:12:31] Speaker 00:
you know, instances of conduct that would give rise to belief that somebody is dangerous rather than just intoxicated.

[00:12:38] Speaker 00:
And intoxication alone is not sufficient.

[00:12:43] Speaker 00:
It's simply not.

[00:12:44] Speaker 00:
These are disjunctive.

[00:12:46] Speaker 03:
And so... Is it reasonable to let someone leave the facility who registers a 0.196, especially when

[00:13:01] Speaker 03:
there's at least some risk to the facility that if something bad happens after release, they could be liable.

[00:13:13] Speaker 00:
Your honor, again, I think that's a factual dispute question, particularly because we've got allegations here that he had a sober ride, a friend who came to the facility to pick him up.

[00:13:23] Speaker 00:
And I would refer back to O'Connor where the court... When did he have a sober ride?

[00:13:29] Speaker 03:
It wasn't, it wasn't at the point of intake.

[00:13:33] Speaker 00:
No, it certainly wasn't at the point of intake.

[00:13:36] Speaker 03:
So now you're, now you're moving on to whether they should have released him sooner.

[00:13:41] Speaker 00:
I think it's all one in the same to the extent that... Oh, well, is it?

[00:13:46] Speaker 03:
You just said there was a different standard for Mr. Paddock to take him into Denver Cares as opposed to intake.

[00:13:53] Speaker 03:
Why wouldn't the analysis be different as to whether

[00:13:57] Speaker 03:
the risk has dissipated and they should release him sometime later that night.

[00:14:04] Speaker 03:
Doesn't seem to me those decisions are the same decisions.

[00:14:08] Speaker 00:
Because the way that the trial court assessed this matter, the court essentially said that if the initial determination at the scene by officers and EMT is if, you know, in the court's judgment, that was reasonable, that that probable cause

[00:14:24] Speaker 00:
carries through all the way through the 10 hour detention absent something that undermines the original initial detention and we believe that's the wrong standard at the point at which an assessment is made and it's determined he doesn't consent and he is

[00:14:42] Speaker 00:
safe to be free in society.

[00:14:44] Speaker 00:
And certainly if the court believes that that was not at intake, then I think that that again, I would argue that's a factual question, but regardless, even if it's not then there's certainly several points later in the evening when they were aware that he had a sober ride.

[00:15:01] Speaker 00:
They have a counselor looking at him, which is somebody that can do discharge or emergency commitment.

[00:15:07] Speaker 00:
And at no point did anybody provide the

[00:15:11] Speaker 00:
low barrier process they're supposed to so that he could at least dispute his detention.

[00:15:17] Speaker 00:
And that's a violation of the Fourth Amendment unto itself.

[00:15:21] Speaker 00:
If I may reserve my final minute.

[00:15:24] Speaker 01:
Let me ask you a question and then maybe Judge Matheson will indulge you with a little rebuttal.

[00:15:29] Speaker 01:
But my question, I'm trying to understand is your argument ministerial in nature that they had certain processes that they had to do on intake and while he was there and because they didn't do them, it doesn't really matter what the facts show.

[00:15:51] Speaker 01:
I mean, as far as what Judge Minico saw as the facts.

[00:15:56] Speaker 00:
So, Your Honor, and we're a little bit hamstrung by the underdeveloped record.

[00:16:01] Speaker 00:
Our argument is that there is something ministerial in nature here to the extent that

[00:16:10] Speaker 00:
there was no, there was no Gerstein equivalent despite clear allegations that that would have been reasonably feasible within the timeframe.

[00:16:19] Speaker 00:
And so on that, even on that basis alone, this couldn't have been compliant with the fourth amendment.

[00:16:26] Speaker 00:
In addition to that, our position is that the only way to get to the understanding of the case that Judge Domenico got to, there needs to be

[00:16:38] Speaker 00:
any number of inferences made against the plaintiff, and I will, because my time is up, I'm going to give one brief example.

[00:16:46] Speaker 00:
The phone call from the neighbor.

[00:16:48] Speaker 00:
Not only is it an anonymous tip, we don't know whether the call said that Mr. Garrett was the perpetrator or the victim.

[00:16:55] Speaker 00:
You have to presume that it said he was the perpetrator.

[00:16:58] Speaker 00:
There's any number of inferences that had to be made against him in order to get to the point that the trial court did in terms of saying,

[00:17:09] Speaker 00:
this was reasonable even without the, you know, quite frankly, low barrier, Gerstein equivalent process.

[00:17:23] Speaker 03:
Thank you, counsel.

[00:17:24] Speaker 03:
We'll see whether he will come back to you later.

[00:17:29] Speaker 03:
Mr. Hood.

[00:17:31] Speaker 02:
Good morning, your honors.

[00:17:33] Speaker 02:
Elliot Hood on behalf of Denver Cares and the individual Abilies.

[00:17:36] Speaker 02:
I have a number of points that I want to address that Ms.

[00:17:40] Speaker 02:
Levine raised, but I just want to kind of frame the analysis here first.

[00:17:46] Speaker 02:
I mean, this case involves two questions.

[00:17:49] Speaker 02:
The first question is, was there a probable cause to detain Mr. Garrett?

[00:17:54] Speaker 02:
And then the second question is whether his detention was reasonable under the circumstances.

[00:17:59] Speaker 02:
And if we go to the first question, the first question is analyzed under traditional probable cause

[00:18:06] Speaker 02:
analysis based on well-settled precedent.

[00:18:09] Speaker 02:
In this case, the police came to Mr. Garrett's front yard where a neighbor had reported that he was having an altercation with someone else.

[00:18:20] Speaker 02:
They seized him and put him in the back of their squad car, and then they called ESP from Denver Cares to come and take him for detox.

[00:18:31] Speaker 02:
When ESP got there, they observed the following.

[00:18:35] Speaker 02:
He was verbally aggressive.

[00:18:37] Speaker 02:
He was cursing.

[00:18:38] Speaker 02:
He had a strong odor of alcohol, slurred speech, a staggered gait, and he admitted to alcohol use.

[00:18:46] Speaker 02:
And then when he was taken by ESP to Denver Cares, he blew a .196.

[00:18:51] Speaker 02:
Okay.

[00:18:53] Speaker 03:
Mr. Hood, could I just stop there for briefly?

[00:18:57] Speaker 03:
Sure.

[00:18:58] Speaker 03:
And when ESP went to the scene,

[00:19:01] Speaker 03:
As I understand it, the complaint does allege, as you described, but is there anything in the complaint to indicate whether the police told ESP about the altercation?

[00:19:16] Speaker 02:
There isn't, but from the perspective of ESP, they're receiving someone from the police who's handcuffed in the back of a squad car, and the police are asking,

[00:19:29] Speaker 02:
ESP to take this person in for detox.

[00:19:32] Speaker 02:
So from the perspective of ESP, it would have been reasonable for them to determine that this person, there was a basis to take this person in to detention for detox.

[00:19:43] Speaker 02:
They didn't have to have a discussion with the police about what happened.

[00:19:48] Speaker 02:
It could have been that they did have a discussion with the police, but that's not alleged in the complaint.

[00:19:53] Speaker 02:
But from the perspective of the folks on the scene who were observing,

[00:19:57] Speaker 02:
Mr. Garrett's behavior, that's what they observed.

[00:20:01] Speaker 02:
And your honor, I want to address a question that you asked earlier about, you know, when is probable cause assessed?

[00:20:08] Speaker 02:
Probable cause is assessed from the perspective of the seizing official.

[00:20:13] Speaker 02:
And in this case, that was the police.

[00:20:15] Speaker 02:
Mr. Garrett never was unseized.

[00:20:17] Speaker 02:
He was seized by the police.

[00:20:19] Speaker 02:
He was handed off in a chain of custody between the police, ESP, and then brought to cares.

[00:20:25] Speaker 02:
So the question, and this is what Judge Domenico analyzed.

[00:20:29] Speaker 02:
He said, based on the facts, the totality of circumstances that we know based on the allegations in the complaint and the documents that are cited in the complaint, was there a probable cause to seize him for intoxication?

[00:20:42] Speaker 02:
And if you look at the totality of facts,

[00:20:44] Speaker 02:
including what the police would have observed from Mr. Garrett when they got on the scene, the fact that they had a call from a neighbor who was concerned about a fight on his front yard, his condition when ESP arrived there and the notes in their logs, and then his very high level of intoxication when he got to Denver Cares.

[00:21:04] Speaker 02:
Based on the totality of those facts, there was probable cause to detain him.

[00:21:09] Speaker 02:
And I would just remind the court that the probable cause standard is not a high bar.

[00:21:14] Speaker 02:
It is a question of probability.

[00:21:15] Speaker 02:
It is not a beyond a reasonable doubt standard.

[00:21:18] Speaker 02:
It's not even a more likely than not standard.

[00:21:22] Speaker 02:
It is a probability standard.

[00:21:23] Speaker 02:
And based on those alleged facts.

[00:21:25] Speaker 03:
Mr. Hood, once they get him to the facility though, and at intake, a fresh assessment is made.

[00:21:33] Speaker 03:
They take the blood alcohol, they do observation and so forth.

[00:21:38] Speaker 03:
Doesn't that require,

[00:21:40] Speaker 03:
at that stage, its own probable cause determination?

[00:21:46] Speaker 02:
It does not.

[00:21:47] Speaker 02:
Why not?

[00:21:47] Speaker 02:
It does not.

[00:21:48] Speaker 02:
Why not?

[00:21:49] Speaker 02:
There are two problems with that.

[00:21:50] Speaker 02:
One is that this court has repeatedly stated that when you have a chain of custody of someone who's been seized, that there's no obligation to reassess probable cause at each chain of that custody.

[00:22:03] Speaker 02:
reasonable for individuals along the way to reasonably rely on the determination of those.

[00:22:09] Speaker 03:
What if he had come in and the blood alcohol was 0.01 and he was perfectly calm, non-aggressive and all the rest and they say, that's too bad.

[00:22:23] Speaker 03:
We're going to keep you here.

[00:22:26] Speaker 03:
And it seems to me what you're saying is doesn't matter.

[00:22:28] Speaker 03:
Once you got probable cause, that's it.

[00:22:31] Speaker 03:
They can do whatever they want.

[00:22:33] Speaker 03:
That's not what I'm saying, and I appreciate the question.

[00:22:35] Speaker 03:
Well, it sounds like what you're saying.

[00:22:36] Speaker 03:
Why wouldn't we look at probable cause at the point of intake?

[00:22:40] Speaker 02:
Because when probable cause has been established to see somebody, the question then becomes, is there observed evidence that would dissipate the probable cause?

[00:22:52] Speaker 03:
Well, OK, what difference does that make?

[00:22:54] Speaker 03:
I mean, isn't it just two sides of the same coin?

[00:22:57] Speaker 03:
Either you still have probable cause or you don't have probable cause.

[00:23:01] Speaker 02:
The people that are doing intake are not assessing for probable cause.

[00:23:05] Speaker 02:
They're walking through a clinical process to establish the care and needs this person has based on their condition in detox.

[00:23:14] Speaker 02:
And part of that is getting the person's blood alcohol level.

[00:23:18] Speaker 02:
Part of that is taking their vitals.

[00:23:20] Speaker 02:
And part of that is creating a care plan

[00:23:22] Speaker 02:
for when they're in the facility for detox.

[00:23:25] Speaker 02:
The folks that are at the initial intake process are not reassessing probable cause.

[00:23:30] Speaker 02:
That's not what they're trained to do.

[00:23:32] Speaker 02:
That's not what they're legally required to do.

[00:23:36] Speaker 03:
But counsel, they're making a detention decision.

[00:23:39] Speaker 03:
They could cut this guy loose right then and there.

[00:23:43] Speaker 03:
So they are making a detention choice.

[00:23:46] Speaker 03:
So isn't there still some reasonableness

[00:23:51] Speaker 03:
standard that has to come into play at that point.

[00:23:55] Speaker 02:
No, I would agree with you, Your Honor, that they cannot unreasonably detain somebody.

[00:24:00] Speaker 02:
There's always a reasonableness standard that applies.

[00:24:04] Speaker 02:
But it's not the question that the intake folks are asking is not, is there a probable cause?

[00:24:09] Speaker 02:
They're gathering facts to help create a care plan for somebody that's there for treatment.

[00:24:14] Speaker 02:
They're not asking what the police did, which is, is there a probable cause to seize this person for intoxication?

[00:24:21] Speaker 02:
Now they can't ignore facts that would dissipate or render the initial probable cause determination unfounded.

[00:24:29] Speaker 02:
So if he got there and he had no alcohol in his system at all, and he had been brought in there for alleged detox, that will be a fact that they would need to consider under the reasonableness framework.

[00:24:43] Speaker 02:
They can't just ignore that fact.

[00:24:45] Speaker 02:
There may be, however, some other attendant facts that the person comes in with

[00:24:50] Speaker 02:
in terms of their medical condition that they can't ignore either that might actually support keeping them for treatment.

[00:24:57] Speaker 01:
I mean, they're making the same determination.

[00:25:01] Speaker 01:
I mean, the determination is the same no matter what label you put on it.

[00:25:05] Speaker 01:
whether he's a danger to himself and others.

[00:25:07] Speaker 01:
The police, when they cuff him and stick him in the car, but not for criminal purposes, they're making a decision there that he's intoxicated and a danger to himself and others.

[00:25:19] Speaker 01:
And then they pass him off to the emergency service officer.

[00:25:23] Speaker 01:
And then he arrives at Denver Cares, and they're assessing him to decide if he's a danger to himself or others.

[00:25:31] Speaker 01:
So whether you want to call it probable cause,

[00:25:33] Speaker 01:
or not probable cause, they're all making the same determination.

[00:25:39] Speaker 02:
I disagree.

[00:25:40] Speaker 02:
The folks at Denver Care is at intake, nor the ESP folks who received him from the police are necessarily asking themselves, is this person a danger to themselves or others?

[00:25:53] Speaker 02:
Because we ask at the initial seizure point,

[00:25:56] Speaker 02:
Was there evidence to show this person was intoxicated and a danger to themselves or others?

[00:26:02] Speaker 02:
That's an observation made in the field that can't be replicated at Denver Cares.

[00:26:07] Speaker 02:
So when he gets to the intake process, the folks who are taking his vitals and taking his BAL cannot properly assess whether he's dangerous as observed by the police in the field.

[00:26:18] Speaker 02:
So it's not fair nor is it reasonable to impose that burden

[00:26:23] Speaker 02:
on the intake folks at Denver Cares.

[00:26:26] Speaker 01:
Well, let me ask you a question.

[00:26:28] Speaker 01:
Hypothetically, he shows up.

[00:26:31] Speaker 01:
The police thought he was the drunk.

[00:26:34] Speaker 01:
The police put him in the car.

[00:26:35] Speaker 01:
The police sent him with the emergency service officer.

[00:26:38] Speaker 01:
And he comes in as Judge Matheson posed to you earlier.

[00:26:42] Speaker 01:
He's compliant.

[00:26:43] Speaker 01:
He's polite.

[00:26:45] Speaker 01:
And he blows virtually nothing.

[00:26:50] Speaker 01:
Could they keep him just because the police thought he was a danger to himself or others?

[00:26:56] Speaker 02:
The fact that he was brought, all of those facts would need to be taken into consideration to determine whether it was reasonable to keep him.

[00:27:05] Speaker 02:
And I can't tell you sitting here today based on the hypothetical whether they could, because those aren't the facts before us.

[00:27:11] Speaker 02:
And we would have to take all of that into account to determine whether he should be detained.

[00:27:16] Speaker 01:
So your point is that in my hypothetical where you have someone who's just a regular guy off the street, no indication that there's any problem whatsoever, that we don't know if they can keep him or not.

[00:27:33] Speaker 01:
Maybe they could.

[00:27:35] Speaker 02:
Based on the facts present that are present at the time, yes, they would have to determine whether he is a candidate for detox.

[00:27:44] Speaker 02:
If he's brought in by police, however, and the police send him to Denver Cares under protective custody, then that's a fact that needs to be considered as well.

[00:27:55] Speaker 02:
But that gets to the traditional Fourth Amendment analysis of when a receiving officer is taking somebody who's already been seized and the receiving officer observed something about the suspect that doesn't match what the report is on that person, then, of course, they can't ignore those facts.

[00:28:16] Speaker 02:
But that's a part of the dissipation analysis is the original probable cause unfounded with the complaint council.

[00:28:24] Speaker 03:
Does the complaint allege that the intake people were aware of the altercation back at the home?

[00:28:33] Speaker 03:
It does not.

[00:28:35] Speaker 03:
And what do we do with that?

[00:28:37] Speaker 03:
Do we impute that knowledge or not?

[00:28:41] Speaker 02:
Well, so it's the same thing as

[00:28:44] Speaker 02:
So like a booking sergeant at a jail doesn't necessarily know what the seizing officer knew in the field.

[00:28:54] Speaker 02:
The seizing officer sees the basis in the field to seize, and then that person is through a chain of custody brought where he needs to go.

[00:29:01] Speaker 03:
And we don't- A booking officer isn't, that doesn't seem like a very good analogy to the intake people who are making a, whether you want to call it a probable cause assessment,

[00:29:13] Speaker 03:
or some kind of professional medical behavioral assessment, they're making a new assessment.

[00:29:21] Speaker 02:
Here's what the intake people would have known, Judge Matheson, is that ESP... Well, it's whatever the complaint alleged, right?

[00:29:28] Speaker 02:
We are at the pleading stage, right?

[00:29:30] Speaker 02:
You are right.

[00:29:31] Speaker 02:
And what I was about to say is what was alleged and what's in the documents alleged in the complaint.

[00:29:35] Speaker 02:
What we know from what's alleged is that the intake people would have known what ESP put in their documentation.

[00:29:44] Speaker 02:
And ESP was very clear that they received Mr. Garrett from the police

[00:29:50] Speaker 02:
who requested he be taken in for detox.

[00:29:52] Speaker 02:
They would have known that.

[00:29:53] Speaker 02:
They wouldn't have known about the altercation that led to the initial seizure.

[00:30:00] Speaker 02:
Again, that's my point about the folks who are in this chain of custody cannot be required to reassess the initial probable cause determination that is made in the field by the officers who are there on the scene making the determination.

[00:30:15] Speaker 03:
What's your best case that would apply to this situation that holds that?

[00:30:19] Speaker 02:
The Baptiste case, the Stearns case, the Hinkel case, all of which are cited in the briefing, those are clear that officers or authorities in a chain of custody do not have to reevaluate or reassess probable cause.

[00:30:40] Speaker 03:
Well, one of the claims here is, okay, we had ESP pick him up, we had intake keep him there,

[00:30:47] Speaker 03:
but then part of the claim is they kept him there too long, right?

[00:30:52] Speaker 03:
So how does your argument about probable cause sort of carrying through this whole episode apply to the point where we get to 1130 at night, the staffs talk to him, he has a ride home, the counselors talk to him and the plaintiffs are alleging and arguing that at that point they should have cut him loose.

[00:31:15] Speaker 03:
Is that a probable cause determination?

[00:31:18] Speaker 03:
What is it?

[00:31:19] Speaker 03:
No.

[00:31:20] Speaker 03:
What if they're right?

[00:31:22] Speaker 03:
Maybe you disagree that the allegations support that, but let's say they're a little stronger.

[00:31:27] Speaker 03:
That is, maybe they take another blood alcohol and there's nothing there.

[00:31:31] Speaker 03:
He's completely sobered up.

[00:31:33] Speaker 03:
His friend's there to give him a ride and they say, no, we're going to keep you for another six hours.

[00:31:38] Speaker 03:
Why wouldn't they have a good claim at that point that his Fourth Amendment rights were violated?

[00:31:44] Speaker 02:
Well, I'll just say that's that's not the allegations here.

[00:31:48] Speaker 03:
I didn't ask that council.

[00:31:49] Speaker 03:
I'm asking you, would they have a stronger case?

[00:31:52] Speaker 03:
And if they did, is it a 4th amendment case?

[00:31:55] Speaker 03:
I know it's not.

[00:31:56] Speaker 03:
That's why it's a hypothetical, but I'm asking you to address the hypothetical shirt.

[00:32:01] Speaker 02:
So.

[00:32:02] Speaker 02:
To answer your 1st question, the analysis is different.

[00:32:05] Speaker 02:
It's a reasonable under the circumstances.

[00:32:08] Speaker 02:
analysis when the detention is happening.

[00:32:10] Speaker 02:
It's not whether there's probable cause to seize.

[00:32:13] Speaker 02:
He's already been seized.

[00:32:14] Speaker 02:
The question then becomes whether the seizure itself, the detention itself is reasonable under the circumstances.

[00:32:21] Speaker 02:
And under your hypothetical, we would have to analyze whether the facts observed as alleged in that circumstance rendered his continued detention unreasonable.

[00:32:34] Speaker 03:
OK.

[00:32:37] Speaker 03:
And I would say, so, so as opposed to whether they have probable cause, you're saying that's not the question.

[00:32:45] Speaker 03:
Correct.

[00:32:46] Speaker 03:
Is whether continued detention is reasonable.

[00:32:50] Speaker 02:
Correct.

[00:32:50] Speaker 02:
And you look to cases like Garner.

[00:32:53] Speaker 02:
where there's an analysis of prolonged detention.

[00:32:57] Speaker 02:
The standard is really, again, it's a reasonableness standard.

[00:33:01] Speaker 02:
And you look at whether the detention itself is tailored to the purpose underlying the detention.

[00:33:06] Speaker 02:
And here you have someone who was brought in for being highly intoxicated and dangerous.

[00:33:13] Speaker 02:
He was held to about the point that he was sober.

[00:33:16] Speaker 02:
He was treated for alcohol withdrawal symptoms along the way.

[00:33:20] Speaker 02:
And he went home early the next morning.

[00:33:23] Speaker 02:
We, our position is that that is a reasonable detention under the circumstances.

[00:33:27] Speaker 03:
I think I'm following you a little better at this point.

[00:33:32] Speaker 03:
I guess, could you sum things up?

[00:33:35] Speaker 03:
You're over time, but I probably ought to give you a chance to make one more point if you've got one.

[00:33:41] Speaker 02:
Yeah, I would just point to our brief where we distinguish between protective custody and the emergency commitment process.

[00:33:49] Speaker 02:
Counsel for Mr. Garrett is trying to impute

[00:33:52] Speaker 02:
the emergency commitment process on the protective custody standards, and that's just different.

[00:33:58] Speaker 02:
A person who is an administrator of the facility can make an emergency commitment on the scene, and that has to be based on intoxication and dangerousness, but that is not the same as the police or ESP bringing someone in for protective custody for what they observe in the field.

[00:34:16] Speaker 02:
And I would also point out that the Gerstein hearing she's talking about, there's no requirement that a facility like Denver cares has to have a magistrate like hearing immediately when someone gets there.

[00:34:28] Speaker 02:
The statute actually provides for notification of the right to challenge the seizure involuntary detention.

[00:34:36] Speaker 02:
and the right to a lawyer within 24 hours of the detention.

[00:34:41] Speaker 02:
So under the facts alleged here, that process never should have been or needed to be invoked.

[00:34:46] Speaker 02:
But that process is built into the statute.

[00:34:50] Speaker 03:
Okay, thank you, Mr. Hood.

[00:34:52] Speaker 03:
If we're going to go with the equal time principle, I'm going to give Ms.

[00:34:55] Speaker 03:
Levin maybe one minute.

[00:34:58] Speaker 03:
Thank you.

[00:34:59] Speaker 03:
Thank you.

[00:35:01] Speaker 00:
Thank you, Your Honor, and I will try and sum things up and address things.

[00:35:06] Speaker 00:
First of all, I would ask the court, in terms of the hypothetical it was discussing, to look at 2023 Westlaw 9235311.

[00:35:16] Speaker 00:
That is the summary judgment order in the prior midget case.

[00:35:22] Speaker 00:
And frankly, the court was essentially describing Mr. Stecker, one of the plaintiffs who was held and who did obtain a jury verdict based upon the unreasonableness of the holding.

[00:35:35] Speaker 00:
Second, and I think that this comes down to them saying this is all protective custody.

[00:35:42] Speaker 00:
Ultimately, what they are asking for is the ability to hold people who there's no claim have done something criminal with no safeguards whatsoever, despite the fact that there is this very low barrier safeguard available.

[00:35:59] Speaker 00:
And that's a huge problem because this is where criminal law and behavioral health

[00:36:04] Speaker 00:
get very different.

[00:36:06] Speaker 00:
This is not supposed to be a punishment.

[00:36:09] Speaker 00:
The idea that they don't have to reassess somebody when they show up at what's part of a hospital in order to that that that portion of the hospital doesn't need to reassess what a police officer did earlier.

[00:36:24] Speaker 00:
This isn't supposed to be a punishment for prior conduct.

[00:36:28] Speaker 00:
They're supposed to be held so long as they are dangerous.

[00:36:32] Speaker 00:
With that, thank you.

[00:36:35] Speaker 03:
Thank you.

[00:36:35] Speaker 03:
Thank you to both of you.

[00:36:36] Speaker 03:
It was really an interesting argument and a helpful one to us.

[00:36:42] Speaker 03:
So thank you again.

[00:36:42] Speaker 03:
The case will be submitted and counsel are excused.