[00:00:03] Speaker 00:
Case number 14-7042, Barbara Fox, appellant Hamilton P. Fox III versus government of the District of Columbia at L. Mr. Fox for the appellant and Mr. McKay for the appellees.

[00:00:15] Speaker 01:
Good morning.

[00:00:16] Speaker 01:
Good morning, Your Honors.

[00:00:17] Speaker 01:
My name is Caleb Fox and I represent the appellant Barbara R. Fox.

[00:00:21] Speaker 01:
May it please the Court.

[00:00:23] Speaker 01:
Your honors, we're here today because the district court erroneously granted judgment on the pleadings against Mrs. Fox by finding that Officer Boyd was entitled to qualified immunity for his mistreatment of Mrs. Fox on December 20th, 2008.

[00:00:39] Speaker 01:
In reaching its ruling, Judge Jackson found that Officer Squires' original stop of Mr. Fox was reasonable, and therefore Officer Boyd's subsequent treatment of Mrs. Fox was also reasonable.

[00:00:53] Speaker 01:
However, the district court erred in overlooking certain key facts, particularly the fact that Officer Squires had more than 15 minutes while Mr. Fox was waiting on the sidewalk to issue Mr. Fox a parking ticket.

[00:01:08] Speaker 06:
Assume all that is correct.

[00:01:12] Speaker 06:
that is so clearly a violation of her constitutional rights that there isn't a qualified agency.

[00:01:19] Speaker 01:
Your Honor, Officer Boyd, in ordering Mrs. Fox to get out of the vehicle and place her hands on the hood of the car was a clear violation of her Fourth Amendment right against illegal seizure.

[00:01:33] Speaker 06:
There was a scene that perhaps began

[00:01:37] Speaker 06:
unwisely on the officer's part, but by this time he has a person that he is having a custodial type confrontation with their husband, and she's making a fuss in the car, can't the officer ask the passenger or tell the passenger to get out and

[00:01:53] Speaker 01:
No, Your Honor, not if the original stop was unconstitutional.

[00:02:02] Speaker 06:
Something has to be heard, right, has to be violated in any way that is appropriate.

[00:02:15] Speaker 06:
That's right, Your Honor, and in this case... He ordered her out of the car and ordered her to place her hands on the hood of the car in violation.

[00:02:28] Speaker 06:
Not during an unlawful arrest, Your Honor.

[00:02:35] Speaker 01:
If the original stop is unreasonable, then any subsequent actions that an officer may take to secure a scene is also unreasonable.

[00:02:45] Speaker 06:
Is that really a safe picture?

[00:02:47] Speaker 06:
That once the officer has the scene, it has to be secured then, however it got created.

[00:02:56] Speaker 01:
I respectfully disagree, Your Honor.

[00:02:59] Speaker 01:
If the original stop is unreasonable, that does not then allow a police officer to violate anybody's rights.

[00:03:06] Speaker 06:
Well, she was sitting there with a gun in her lap.

[00:03:08] Speaker 01:
She was not, Your Honor.

[00:03:11] Speaker 01:
But there was no, there was no.

[00:03:13] Speaker 01:
I'm not asking you what there was.

[00:03:14] Speaker 01:
I'm saying suppose there was a gun in her life.

[00:03:16] Speaker 01:
Well, yes, your honor, but I think that's factually very different from the case at hand.

[00:03:20] Speaker 06:
No doubt it's very different.

[00:03:21] Speaker 06:
It's what we call a hypothetical.

[00:03:22] Speaker 06:
Yes, sir.

[00:03:23] Speaker 06:
But if you're saying that it changed everything after the original stuff, then nothing he does after that.

[00:03:32] Speaker 01:
I believe that the facts in that hypothetical are so different from the facts in the case here that it's not particularly applicable.

[00:03:43] Speaker 06:
Well, the officer, Officer Boyd,

[00:03:50] Speaker 01:
pulled Mrs. Fox out of the car in order to place her hands on the hood of the car without any evidence in the pleaded facts that suggests that Mrs. Fox was a security risk to any of the officers on the scene.

[00:04:04] Speaker 01:
Simply, Mrs. Fox was asking questions about why her husband was being unlawfully arrested and the officers rudely threatened to arrest her and forced her to place her hands on the hood of the car and get out of the car in violation of her rights.

[00:04:20] Speaker 02:
So is your point that the arrest was clearly unconstitutional?

[00:04:23] Speaker 02:
Yes, ma'am.

[00:04:24] Speaker 02:
And so the normal powers that police officers enjoy in executing arrests don't apply when the arrest itself is clearly unconstitutional?

[00:04:32] Speaker 01:
That's right.

[00:04:33] Speaker 01:
When the arrest is not supported by probable cause or reasonable suspicion, then the subsequent treatment, in this case the seizure of Mrs. Fox and the seizure of Mr. Fox, were also unconstitutional.

[00:04:46] Speaker 02:
Is there?

[00:04:47] Speaker 01:
Yes, yes, your honor.

[00:04:52] Speaker 01:
Yes, sir.

[00:04:53] Speaker 01:
There's a judgment entered against the government for $80,000.

[00:05:00] Speaker 02:
Quick question about that judgment process.

[00:05:02] Speaker 02:
Was the government a party to that application?

[00:05:05] Speaker 02:
Did they file anything?

[00:05:07] Speaker 01:
The judgment was offered by the government to Mr. Fox, and he accepted it.

[00:05:14] Speaker 02:
I'm sorry, it's my confusion.

[00:05:15] Speaker 02:
The exoneration proceeding, or whatever it was called, where they found he was clearly innocent of disorderly conduct?

[00:05:24] Speaker 01:
That's right.

[00:05:25] Speaker 01:
The government did not oppose Mr. Fox in those proceedings.

[00:05:30] Speaker 02:
But the government was a party to that proceeding?

[00:05:32] Speaker 02:
It wasn't just the next part.

[00:05:34] Speaker 03:
Surely it's not a settlement, right?

[00:05:35] Speaker 02:
No, there were there are two things.

[00:05:37] Speaker 02:
No, there are two.

[00:05:38] Speaker 02:
This is separate from the settlement.

[00:05:39] Speaker 02:
This was you're talking about exonerated from his disorderly conduct.

[00:05:43] Speaker 01:
Right.

[00:05:44] Speaker 01:
The government, to my knowledge, did not oppose it.

[00:05:47] Speaker 01:
I believe that they were entitled to oppose it and did and did not oppose it at that time.

[00:05:52] Speaker 02:
Did they file anything in that that you know of?

[00:05:54] Speaker 01:
I'm honestly not sure whether they did or not, but I don't believe they opposed it.

[00:05:59] Speaker 01:
I don't believe they consented to it either, but I don't think they filed any papers that presented arguments as to why his arrest should not be expunged.

[00:06:10] Speaker 03:
So the government's argument is first that Mr. Fox was illegally parked.

[00:06:18] Speaker 01:
Yes.

[00:06:19] Speaker 03:
and he asked to speak to a supervisor.

[00:06:23] Speaker 01:
Yes, Your Honor.

[00:06:25] Speaker 03:
So at that point, are you contesting that there was a traffic violation?

[00:06:37] Speaker 01:
Not necessarily, Your Honor.

[00:06:38] Speaker 03:
All right.

[00:06:39] Speaker 03:
So there was a traffic violation.

[00:06:42] Speaker 03:
Then Officer Boyd joined Officer Squires.

[00:06:46] Speaker 01:
Correct.

[00:06:48] Speaker 01:
After Officer Squires stopped Mr. Fox from leaving, yes.

[00:06:52] Speaker 03:
In a hypothetical situation, if once Mr. Boyd and whoever the other supervisor... Squires, yes.

[00:07:02] Speaker 03:
No, Spires was just the police officer, and Boyd was just the police officer, but there was a supervisor on the scene.

[00:07:08] Speaker 01:
Eventually a supervisor arrived.

[00:07:10] Speaker 03:
He came with Boyd, or around the same time?

[00:07:13] Speaker 01:
Yes, ma'am.

[00:07:13] Speaker 03:
In any event,

[00:07:15] Speaker 03:
Since there had been a traffic violation, the officer could have issued the citation.

[00:07:23] Speaker 03:
And if Mrs. Fox had continued to question, is it your position that then the officer would not have had, under Supreme Court precedent that you cite, the authority to ask her to get out of the car?

[00:07:43] Speaker 01:
Well, I think under that hypothetical, the officer would have that authority, but I think that hypothetical does not take into account Officer Squires' lack of diligence in not issuing the ticket in the ample time he had.

[00:07:55] Speaker 03:
Well, Mr. Fox had asked to see a supervisor, speak to a supervisor.

[00:07:59] Speaker 03:
Yes, Your Honor.

[00:08:00] Speaker 03:
And presumably, I mean, this is speculation on my part, the supervisor might have said to Squires, let it go.

[00:08:08] Speaker 03:
So they were waiting to see what was going to happen.

[00:08:11] Speaker 01:
That's right.

[00:08:12] Speaker 01:
But Mr. Fox then elected to leave, and Officer Squires stopped him from doing that in contravention of his order to remove the car in the first place.

[00:08:22] Speaker 03:
Right.

[00:08:22] Speaker 03:
So I just need to be clear here.

[00:08:24] Speaker 03:
There's a clear parking violation under the traffic laws.

[00:08:29] Speaker 01:
I think that's true, yes.

[00:08:30] Speaker 03:
All right.

[00:08:32] Speaker 03:
And according to the findings that we have, Mrs. Fox

[00:08:37] Speaker 03:
kept asking Boyd what was going on with regard to her husband.

[00:08:42] Speaker 01:
That's right.

[00:08:43] Speaker 03:
Part of your argument is Boyd created the tension in Mrs. Fox that created the whole situation that caused him to ask her to get out of the car.

[00:08:54] Speaker 01:
That's correct.

[00:08:55] Speaker 01:
His rude treatment of her while she was asking questions as to why her husband was being unlawfully arrested certainly contributed and was the direct contributing factor to her.

[00:09:05] Speaker 03:
Well, she asked what was going on.

[00:09:07] Speaker 03:
Isn't that right?

[00:09:07] Speaker 03:
What are you doing to my husband?

[00:09:08] Speaker 01:
She initially tried to get out of the car.

[00:09:10] Speaker 03:
But did she?

[00:09:12] Speaker 03:
challenge whether the arrest was lawful?

[00:09:15] Speaker 01:
She was not even able to do that because every time she asked a question, she was told to shut up.

[00:09:20] Speaker 03:
I understand, but she wasn't asking why her husband was being illegally arrested.

[00:09:25] Speaker 03:
She was just asking what were they doing?

[00:09:29] Speaker 03:
Correct?

[00:09:30] Speaker 01:
Well, the actual only words that she was able to ask was, yes, what is going on?

[00:09:34] Speaker 03:
So the district court took the position that because there was evidence that Mrs. Fox had become emotional,

[00:09:43] Speaker 03:
that in order to allow the processing of Mr. Fox to continue without any further interruption, that that was a reasonable direction for Mrs. Fox to get out of the car.

[00:10:03] Speaker 01:
That's what the district court found, yes.

[00:10:05] Speaker 03:
And you don't disagree with any of those factual findings?

[00:10:09] Speaker 01:
No, we don't.

[00:10:10] Speaker 03:
And that it was

[00:10:13] Speaker 03:
a minor intrusion to order her to put her hands on the car.

[00:10:20] Speaker 01:
Certainly a minor intrusion as compared to other illegal seizures, yes.

[00:10:24] Speaker 01:
But an intrusion regardless of how, of its level, is unconstitutional regardless of how severe the intrusion may be.

[00:10:36] Speaker 03:
This is a fruit of the poisonous tree argument you're making almost, right?

[00:10:40] Speaker 03:
Which I didn't see in your brief in that quite those terms, but let's ignore that for a moment.

[00:10:45] Speaker 03:
So your point here is that it is clearly established that an officer where there has been a violation of the traffic laws and a passenger

[00:11:04] Speaker 03:
from the officer's point of view, has created a situation where the officer determines he should tell her to get out of the car and put her hands on the car, that it's clearly established that that was a violation of her constitutional rights under the Fourth Amendment?

[00:11:24] Speaker 01:
Yes, Your Honor.

[00:11:25] Speaker 03:
And in what case can we look to for that?

[00:11:28] Speaker 01:
I think Sharp is the most important case.

[00:11:30] Speaker 03:
Sharp?

[00:11:30] Speaker 01:
Yes, United States v. Sharp, which addresses the need for an officer to diligently pursue his investigations during an investigatory or a traffic stop, which Officer Squires did not do.

[00:11:42] Speaker 03:
That's the argument that the government said you didn't raise in your opening brief, and now you raise it in your reply brief.

[00:11:47] Speaker 03:
And you say, well, you cited cases in your opening brief, but you really didn't make this argument.

[00:11:52] Speaker 03:
But let's assume that's not a problem.

[00:11:55] Speaker 03:
Mr. Fox asked to speak to a supervisor.

[00:12:00] Speaker 03:
So isn't the delay explained by that?

[00:12:05] Speaker 01:
Well, it's partially explained by that, but I think Officer Squires' subsequent conduct in refusing to allow Mr. Fox to comply with his original order to move the car and to hold him there for no reason other than to harass him strongly suggests that Officer Squires had no intention of issuing a parking ticket, and certainly the 15-minute time window that he had gave him ample time to issue a parking ticket and resolve the situation.

[00:12:31] Speaker 03:
Well, I know you have this abandonment argument,

[00:12:35] Speaker 03:
I understand your argument about he couldn't both stand on the sidewalk and move the car.

[00:12:42] Speaker 01:
Yes.

[00:12:42] Speaker 03:
But I don't know where this abandonment comes from.

[00:12:47] Speaker 01:
Well, the order to move the car was rescinded by Officer Squires when he instructed Mr. Fox to stand on the sidewalk and wait.

[00:12:58] Speaker 01:
He couldn't move the car and stand.

[00:13:00] Speaker 03:
He didn't say, I guess my scenario, as I read the facts here, is that Mr. Fox wanted to speak to a supervisor.

[00:13:10] Speaker 01:
Yes.

[00:13:12] Speaker 03:
And they were waiting for the supervisor to get there.

[00:13:15] Speaker 03:
And then when Mr. Fox tried to leave, Squires told him to stop.

[00:13:23] Speaker 01:
Right, which there's no, we cannot find any legally justifiable reason for that.

[00:13:30] Speaker 01:
There's no, to our knowledge, there's nothing in the police handbook that says once a citizen requests to speak to a supervising officer, he or she has to remain there until that officer arrives.

[00:13:42] Speaker 06:
And the fact that Officer Squires... After he's called his supervisor and said, please come down here, he's supposed to stand there and then be ready to say, what, Super?

[00:13:50] Speaker 01:
Got you here for no reason.

[00:13:52] Speaker 01:
Is that what you're saying?

[00:13:54] Speaker 01:
Well, I mean, that's a matter more for internal police politics.

[00:13:59] Speaker 01:
That doesn't rise to a constitutional level.

[00:14:01] Speaker 01:
Hang on.

[00:14:01] Speaker 02:
Do we know?

[00:14:01] Speaker 02:
I mean, this is a dismissal on the pleadings.

[00:14:04] Speaker 02:
Do we know?

[00:14:05] Speaker 02:
Is it in your complaint that Officer Schwartz actually asked for a supervisor?

[00:14:10] Speaker 02:
Because it seems like instead of a supervisor, a swarm of police officers,

[00:14:15] Speaker 02:
That's true.

[00:14:16] Speaker 02:
And all I read was that someone said, you wanted an official.

[00:14:18] Speaker 02:
I'm an official.

[00:14:19] Speaker 02:
I didn't see any complaint that said he called for a supervisor, actually called for a supervisor, or that a supervisor actually showed up.

[00:14:25] Speaker 01:
Well, that is correct, Your Honor.

[00:14:28] Speaker 01:
After Mr. Fox was placed in handcuffs, a police officer did arrive and claim to be an official.

[00:14:35] Speaker 01:
Well, they're all officials.

[00:14:36] Speaker 01:
That's right.

[00:14:36] Speaker 01:
But then said that, I guess it's too late because Mr. Fox had already been unlawfully arrested.

[00:14:41] Speaker 01:
Certainly, there's a question of fact on that as to whether or not

[00:14:45] Speaker 02:
I was curious about it.

[00:14:46] Speaker 02:
It seems like there's a lot of, at least on a constitutional question, a lot of facts missing as to

[00:14:53] Speaker 02:
what officer Squires did, why, if a police officer asks for a supervisor to traffic stop, a swarm of other police officers show up, and no one's ever been identified as a supervisor in this record.

[00:15:07] Speaker 02:
That's right.

[00:15:08] Speaker 02:
Do we know how much time elapsed from the very beginning of this whole incident until the very end when Ms.

[00:15:15] Speaker 02:
Fox left?

[00:15:16] Speaker 01:
The pleaded facts say there was at least 15 minutes while Mr. Fox waited on the sidewalk

[00:15:22] Speaker 01:
There's no specific time noted in the complaint that says how long after Officer Squires subsequently stopped Mr. Fox from leaving, the other officers arrived.

[00:15:35] Speaker 01:
You know, this case is kind of unique, Your Honors, in that because Mr. Fox's case went forward, there has been discovery

[00:15:42] Speaker 01:
developed in this case.

[00:15:43] Speaker 02:
But that's not in this record.

[00:15:44] Speaker 01:
But not in this record.

[00:15:45] Speaker 01:
That's right.

[00:15:46] Speaker 01:
So Mr. McKay and I both know sort of what the timing was.

[00:15:49] Speaker 01:
But as far as what the district court knew under the pleaded facts, it's fairly unclear.

[00:15:56] Speaker 01:
And there's certainly a question of fact that should have been viewed in a light more favorable to Mrs. Fox and to Officer Boyd.

[00:16:04] Speaker 02:
I take it on the on the pleadings here we also there's no evidence that squires ever did a single step in the course of issuing a parking citation until I guess there's some debate about whether it was before or after at the police station but between the initial move the car and putting on the handcuffs I take it there's at least no assertion in your complaint of any or their answer of any

[00:16:30] Speaker 02:
Anything he did to initiate a traffic citation?

[00:16:33] Speaker 01:
That's correct, Your Honor.

[00:16:35] Speaker 01:
There was no mention of a parking citation apart from the original dispute over the meaning of the parking signs.

[00:16:42] Speaker 01:
And certainly, Mr. Fox did not receive a parking ticket on the scene.

[00:16:46] Speaker 01:
He received the parking ticket there after.

[00:16:48] Speaker 02:
And something can start as a lawful traffic stop and then, by the nature of its terms, turn into an unconstitutional stop.

[00:16:55] Speaker 02:
I'm not saying that's what happened here, but that could certainly happen in the law.

[00:16:57] Speaker 02:
That's pretty well established.

[00:16:58] Speaker 01:
Yes, absolutely.

[00:17:00] Speaker 03:
All right, why don't we hear from Council for Governors.

[00:17:03] Speaker 01:
Thank you very much.

[00:17:09] Speaker 04:
May it please the Court, I'm James McKay and I represent Officer Boyd.

[00:17:15] Speaker 04:
Let me just say this.

[00:17:16] Speaker 04:
Officer Boyd's intention was very minor infusion.

[00:17:20] Speaker 04:
He did not have any physical contact with her.

[00:17:23] Speaker 04:
Did you say his intention?

[00:17:27] Speaker 04:
Action's contact toward Mrs. Fox was a minor intrusion.

[00:17:31] Speaker 04:
He did not pull her out of the car.

[00:17:33] Speaker 04:
He did not touch her.

[00:17:34] Speaker 04:
He did not have any physical contact.

[00:17:36] Speaker 02:
He had no authority to do anything.

[00:17:38] Speaker 02:
I'm just asking the question.

[00:17:40] Speaker 02:
If he had no authority, an officer could come up to me driving into work and say, get out of the car and put your hands on the hood, and that would be just as factually minor.

[00:17:49] Speaker 02:
But if they had absolutely no authority whatsoever to order me to do that, that would be unconstitutional, right?

[00:17:53] Speaker 05:
Yes, Your Honor.

[00:17:54] Speaker 02:
So really this turns on the question of what constitutional authority, if any, he had.

[00:17:59] Speaker 02:
But two things.

[00:18:00] Speaker 02:
First, was there constitutional authority and was there, separately, was there, was it clearly established that he lacked constitutional authority, right?

[00:18:07] Speaker 04:
Yes, Your Honor.

[00:18:08] Speaker 04:
It has to be judged from the perspective of a reasonable officer in Officer Boyd's position.

[00:18:13] Speaker 04:
He came after this

[00:18:16] Speaker 04:
incident with officer Squires was over and he basically had the authority

[00:18:26] Speaker 04:
Two, a reasonable officer would have come and realized that there was an illegally parked car and in violation of the district's traffic regulations.

[00:18:33] Speaker 02:
Well, how do we know that?

[00:18:34] Speaker 02:
Because I know originally he'd been by the sign, but then he started to pull away at some point before Officer Boyd showed up.

[00:18:43] Speaker 02:
Yes.

[00:18:44] Speaker 02:
And then was stopped again.

[00:18:45] Speaker 02:
But we don't know anything in this record, at least, where the car was at that point, do we?

[00:18:52] Speaker 04:
Well, the officer boy clearly came after the car was stopped.

[00:18:58] Speaker 02:
So the car was stopped and... We don't know where the car was stopped the second time, right?

[00:19:01] Speaker 04:
I don't think it moved.

[00:19:03] Speaker 02:
Well, the complaint says that he started to pull away.

[00:19:06] Speaker 02:
Now, I don't know whether that means an inch or a few feet or a couple yards or what other signs were on the street.

[00:19:11] Speaker 02:
It could very well be right.

[00:19:13] Speaker 02:
I'm just saying we got a decision here on the pleadings.

[00:19:15] Speaker 02:
So where do the pleadings tell us where the car was?

[00:19:17] Speaker 04:
Well, there's no indication.

[00:19:19] Speaker 04:
that he moved the car, he started to go away, but he was stopped, and there's no indication that it was not illegally parked.

[00:19:30] Speaker 02:
Well, there's no indication when we were other after.

[00:19:33] Speaker 02:
I think we know from the complaint when Officer Squires made the stop, he was parked somewhere in that area where there was the debated

[00:19:42] Speaker 04:
No parking but didn't say standing sign and then we don't have we don't know from this record exactly where he was and then how much the car I'm just asking you a question Your honor the the complaint makes it clear that to one side there was no parking at any time the other side it was no parking commercial vehicles only and he was

[00:20:02] Speaker 04:
during an hour where that was prohibited.

[00:20:05] Speaker 04:
So it's clear from the complaint that he hasn't moved it out into a legal parking place.

[00:20:10] Speaker 02:
Where is it clear from that?

[00:20:11] Speaker 04:
Because the description of the place where he originally parked was no parking either way.

[00:20:18] Speaker 02:
Well, did it say how long the no parking?

[00:20:20] Speaker 02:
I mean, there's plenty of city blocks where there's, you know, you're shaking your head.

[00:20:24] Speaker 02:
I'm just telling you this is a fact question.

[00:20:26] Speaker 02:
There's plenty of city blocks where there's a portion of it that you can't park and then right next to it is the parking areas.

[00:20:31] Speaker 02:
It's commonly loading zones.

[00:20:32] Speaker 04:
There's no indication, it was very clear from the complaint that there was no parking either way.

[00:20:38] Speaker 04:
There was no indication at the complaint that there was any place you could have parked legally.

[00:20:42] Speaker 04:
There was, it was purely one way there was no parking at any time, the other place

[00:20:47] Speaker 04:
Was no parking except commercial vehicles and that's where he was for the entire block I didn't read that from the complaint.

[00:20:54] Speaker 02:
I mean, I thought there was an area outside the CV the CVS or whatever It was right.

[00:20:58] Speaker 02:
It's a distance of the no parking restrictions was

[00:21:01] Speaker 04:
Well, the complaint said there was no parking.

[00:21:05] Speaker 04:
I think it was to the east, there was no parking at any time.

[00:21:08] Speaker 04:
And to the west, there was no parking except commercial vehicles.

[00:21:11] Speaker 02:
And that was the complaint.

[00:21:13] Speaker 02:
I think we're going in circles here.

[00:21:14] Speaker 02:
What I'm asking is, do we know what the length of those parking restrictions were?

[00:21:19] Speaker 04:
And I guess we don't in the record.

[00:21:22] Speaker 02:
Not the temporal, no, no, the geographic, was it the entire, we don't know, right?

[00:21:27] Speaker 04:
Well, it was the entire area in front of him on that side of the street as far as we know from the complaint.

[00:21:35] Speaker 04:
In any case, it's Officer Boyd you have to look at.

[00:21:38] Speaker 04:
He came to the scene and he had no basis to second guess.

[00:21:44] Speaker 04:
Officer Squires

[00:21:46] Speaker 04:
you know, determination that he was illegally parked and that he was given a citation, which happened right on the scene.

[00:21:54] Speaker 04:
If you look at paragraph 48, 49 of the complaint, he was given a... For one thing, I just wanted to point out that

[00:22:01] Speaker 02:
I'm sorry, hang on, I just want to understand what you're saying.

[00:22:05] Speaker 04:
Two things I just want to mention about the complaint.

[00:22:06] Speaker 04:
One is Paragraphs 3132 on page 8.

[00:22:13] Speaker 03:
Let's be clear.

[00:22:14] Speaker 03:
48 and 49 don't tell us time.

[00:22:17] Speaker 03:
And what we're really been talking about is Paragraphs 3133.

[00:22:24] Speaker 04:
Yeah, 31.

[00:22:26] Speaker 03:
Mr. Fox is incredulous.

[00:22:28] Speaker 03:
Then he stood there for 15 minutes.

[00:22:31] Speaker 04:
Well, then he asked for a supervisor, and the officer said he'd wait for a supervisor.

[00:22:35] Speaker 04:
At this point, though, he's voluntarily standing on the sidewalk, waiting for his wife, who was in the store at the time, to come out.

[00:22:42] Speaker 03:
I don't see all that.

[00:22:43] Speaker 03:
Well, I mean... What I see is paragraph 33.

[00:22:48] Speaker 04:
Yes.

[00:22:49] Speaker 03:
All right, and the inference to be drawn there is that Mr. Fox had gotten back into his car, and it says, quote, so he got back into his vehicle to start it, to leave.

[00:23:06] Speaker 03:
However, Officer Squires activated his siren and Mr. Fox stopped.

[00:23:11] Speaker 05:
Yes.

[00:23:13] Speaker 03:
Then Mr. Fox got out and walked to Squires vehicle.

[00:23:16] Speaker 05:
Yes.

[00:23:19] Speaker 03:
All right.

[00:23:21] Speaker 03:
So there are several inferences that can be drawn.

[00:23:25] Speaker 03:
And you heard counsel say Mrs. Fox is entitled to a reasonable inference.

[00:23:32] Speaker 04:
I'm sorry, I just couldn't hear you.

[00:23:34] Speaker 03:
You couldn't hear me?

[00:23:35] Speaker 03:
No, I'm sorry.

[00:23:36] Speaker 03:
I'm sorry.

[00:23:37] Speaker 03:
That you heard counsel for Mrs. Fox say that the inferences should be drawn in Mrs. Fox's favor here.

[00:23:50] Speaker 04:
Well, it has to be plausible, though.

[00:23:51] Speaker 04:
You have to have a plausible basis for liability.

[00:23:55] Speaker 04:
And you just can't say it's merely possible.

[00:23:58] Speaker 04:
And that's all it says here.

[00:23:59] Speaker 04:
You have no plausible under the Iqbal Twombly cases.

[00:24:04] Speaker 04:
You just haven't met that threshold standard with this pleading of showing that you have a

[00:24:10] Speaker 04:
a good case of the clearly established violation.

[00:24:14] Speaker 04:
And we cited a number of circuit decisions before that, say, parking offenses justifies that Terry stopped the Third Circuit case, saying that... But every one of those says a lawful...

[00:24:27] Speaker 02:
traffic stop or a lawful arrest allows you to control the scene during the arrest.

[00:24:35] Speaker 02:
A lawful traffic stop allows you to order people out of the car.

[00:24:41] Speaker 02:
And so if it was unlawful, then there would be a Fourth Amendment violation.

[00:24:49] Speaker 02:
Then you have to ask the separate question, was it clearly an unlawful

[00:24:55] Speaker 02:
or so clearly that we would get past qualified immunity.

[00:24:59] Speaker 02:
But I want to make sure we're being very careful here, because I think some of the briefings seem to assume that as long as there's a traffic stop at some point,

[00:25:08] Speaker 02:
Officers can do whatever they want and order people in and out, in and out, in and out, which I don't think is the law at all under the Fourth Amendment.

[00:25:19] Speaker 04:
Well, you're right.

[00:25:20] Speaker 04:
But there has to be a lawful traffic stop.

[00:25:23] Speaker 04:
But here, I think there's really no dispute.

[00:25:26] Speaker 04:
anymore that he was parked in violation of the traffic regulations.

[00:25:31] Speaker 04:
Now, this court has not directly decided whether a parking violation justifies a Terry stop, but there's no other case in the circuit, any of the circuits, to the contrary.

[00:25:41] Speaker 04:
And you can't just say generally, cite general statements about the Fourth Amendment.

[00:25:47] Speaker 04:
The Supreme Court and the Ashcroft v. Al Kidd made it clear that you have to show the particular conduct

[00:25:53] Speaker 04:
of the officer violates the right to show the clearly established element.

[00:25:58] Speaker 04:
And the burden is on the plaintiff to show that a clearly established right was violated by allegations that are plausible, that we could plausibly conclude established the Fourth Amendment.

[00:26:13] Speaker 04:
All right, there's certainly nothing happening here.

[00:26:14] Speaker 03:
Pardon me?

[00:26:15] Speaker 03:
I understand those legal standards.

[00:26:18] Speaker 03:
Supreme Court's made it very clear that you have to apply them in a specific factual context.

[00:26:24] Speaker 05:
Yes.

[00:26:24] Speaker 03:
So we're looking at the complaint and what it says is that Mrs. Fox complied with every instruction she was given and that all Officer Boyd knew when he got to the scene was that Squires said Mr. Fox had an attitude problem.

[00:26:47] Speaker 05:
Yes.

[00:26:48] Speaker 03:
So then Mrs. Fox asks Officer Boyd what's happening and he tells her to shut up and threatens her with arrest.

[00:27:02] Speaker 03:
No, but he threatens her.

[00:27:04] Speaker 04:
Well, yes, Your Honor, that was not probably the best way to handle it.

[00:27:08] Speaker 04:
I agree.

[00:27:08] Speaker 02:
Not probably the best.

[00:27:09] Speaker 04:
No.

[00:27:10] Speaker 02:
I assume you would have stronger language in that.

[00:27:12] Speaker 04:
No one covered themselves with the glory of this case.

[00:27:15] Speaker 03:
No.

[00:27:15] Speaker 03:
Right.

[00:27:16] Speaker 03:
But it wasn't the... So for her, no, I'm trying to get to the facts of this case, all right?

[00:27:21] Speaker 03:
Judge Millett's questions were getting to are there a lot of factual issues that need to be resolved as opposed to a judgment on the pleadings.

[00:27:33] Speaker 03:
So if we're talking about what a reasonable officer did, and we're only looking at the complaint, was it reasonable for this officer to proceed as he did?

[00:27:45] Speaker 03:
And are the facts of this complaint, under Twombly and Ickle,

[00:27:51] Speaker 03:
to be viewed favorably to Mrs. Fox?

[00:27:55] Speaker 03:
That's my question.

[00:27:56] Speaker 04:
Yes, Your Honor.

[00:27:57] Speaker 04:
And that is the question.

[00:27:58] Speaker 04:
And as we've stated, the allegations of complaint do not establish plausibly that Officer Boyd violated clearly established rights of Mrs. Fox.

[00:28:11] Speaker 04:
In the very minor intrusion, no fiscal conduct is

[00:28:15] Speaker 04:
Get out of your car, put your hands on the hoods where I can see them.

[00:28:18] Speaker 04:
I mean, look at the Marilyn V. Wilson case.

[00:28:20] Speaker 02:
I mean, in that case, the only reason the officer had was, well, the passenger looks nervous, and that was enough to justify any... The difference here is, Marilyn says you can order someone who's already in out.

[00:28:34] Speaker 02:
But here, the police had already ordered her in.

[00:28:37] Speaker 02:
and then ordered her out.

[00:28:38] Speaker 02:
First they ordered her in.

[00:28:39] Speaker 05:
Yes.

[00:28:40] Speaker 02:
So they did their Marilyn vs. Wilson, ordered her in the car.

[00:28:42] Speaker 02:
And then because she was crying and asking questions, according to the complaint, they ordered her back out.

[00:28:50] Speaker 02:
Now I assume your position isn't that Marilyn vs. Wilson allows police officers to treat people like Jack in the Box and order them in, out, in, out.

[00:28:58] Speaker 02:
At some point he's exercising control over her that's way beyond simply a Marilyn vs. Wilson one-time exit for safety.

[00:29:06] Speaker 04:
Well, Your Honor, we agree, you know, there have to be constraints on police officers, but here there are very articulable facts that the police officer was confronted.

[00:29:15] Speaker 04:
He was trying to control the scene.

[00:29:18] Speaker 04:
That's what he wanted to do.

[00:29:19] Speaker 06:
From the allegations of the complaint, was he there when she was ordered into the vehicle?

[00:29:24] Speaker 06:
The sergeant boy there at that time.

[00:29:27] Speaker 06:
Well, yes.

[00:29:28] Speaker 03:
He was there in his order.

[00:29:30] Speaker 03:
Yes.

[00:29:30] Speaker 03:
They're both police officers, all right?

[00:29:33] Speaker 03:
There's no supervisor on the scene.

[00:29:35] Speaker 06:
Well, he described as sergeant.

[00:29:37] Speaker 06:
No, but there's a footnote.

[00:29:38] Speaker 04:
No, he wasn't a sergeant.

[00:29:40] Speaker 03:
There's a footnote saying that was a mistake.

[00:29:42] Speaker 06:
I don't read footnotes.

[00:29:45] Speaker 03:
Yeah.

[00:29:46] Speaker 04:
Yeah, we, we, everybody, you know, realizes she's an officer, not a sergeant.

[00:29:51] Speaker 04:
And, and, and they both were participating in the arrest of Spires and Boyd of, of Mr. Fox and, uh, the allegation of the claim were 22.

[00:30:00] Speaker 04:
And, uh, the, Officer Boyd was trying to control the scene.

[00:30:05] Speaker 04:
She, four times, asked what was happening and started.

[00:30:07] Speaker 03:
Well, the point is, though, reading the complaint, the scene was under control until Officer Boyd,

[00:30:16] Speaker 03:
conduct created the problem.

[00:30:19] Speaker 03:
That's the inference from the complaint.

[00:30:21] Speaker 04:
Well, I don't think the complaint shows that because she had gotten out of the car and the officer boy said, please get back in the car.

[00:30:28] Speaker 04:
Get back in the car.

[00:30:29] Speaker 04:
I don't know how he said it.

[00:30:30] Speaker 04:
But she got back and then she kept asking.

[00:30:33] Speaker 04:
And then he did tell her to shut up, which was not a good thing for a police officer to tell a citizen, I agree.

[00:30:39] Speaker 04:
And then she started crying.

[00:30:41] Speaker 04:
And here he is trying to

[00:30:43] Speaker 04:
assist Officer Squires in arresting Mr. Fox and you eat.

[00:30:48] Speaker 02:
I think that's your issue, okay?

[00:30:50] Speaker 02:
The traffic stops stuff.

[00:30:53] Speaker 02:
Let's assume that's all at least within the bounds of not clearly unconstitutional.

[00:30:59] Speaker 02:
But the order out was in conjunction with what I hope you will admit was a clearly unconstitutional arrest.

[00:31:07] Speaker 02:
Not a seizure, but it was part of a clearly unconstitutional arrest of Mr. Fox.

[00:31:11] Speaker 04:
No, I think it was perfectly constitutional.

[00:31:13] Speaker 02:
A perfectly constitutional arrest of Mr. Fox.

[00:31:16] Speaker 02:
Yes.

[00:31:16] Speaker 02:
What was he doing?

[00:31:17] Speaker 04:
He failed to obey the reasonable instruction of officer squires to move his car.

[00:31:24] Speaker 02:
That is a criminal offense.

[00:31:26] Speaker 02:
he went back and he said, stand on the sidewalk, and then when he got in the car to move it, the officer squire said, stop, you can't mean when you've got three different directions from a police officer that you get to be arrested for choosing to do the last two things he said you could do?

[00:31:43] Speaker 04:
Really?

[00:31:43] Speaker 04:
Well, Officer Boyd came to the scene after it had happened, and the

[00:31:48] Speaker 04:
Failure to obey had already occurred.

[00:31:51] Speaker 04:
That was an offense that had been established.

[00:31:53] Speaker 04:
But you don't really need to get to the legality of Mr. Fox's arrest.

[00:32:00] Speaker 02:
He tried to move the car and was told to stop.

[00:32:02] Speaker 02:
Did he obey that?

[00:32:04] Speaker 05:
Well, he did obey that, yes.

[00:32:06] Speaker 02:
He said, wait on the sidewalk.

[00:32:07] Speaker 02:
Did he obey that?

[00:32:09] Speaker 05:
He did that.

[00:32:10] Speaker 02:
Yes, he did.

[00:32:11] Speaker 02:
Okay, so what basis did Officer Boyd have to think there was any reason to arrest him for failing to obey an order?

[00:32:18] Speaker 04:
He failed to obey the initial order to move his car.

[00:32:23] Speaker 02:
Boyd wasn't there when the initial order to move the car occurred, and Boyd, under collective knowledge, is charged with knowledge that squires made two subsequent orders that told him to not move the car and to stay on the sidewalk.

[00:32:37] Speaker 02:
Well, you can't really seriously mean that.

[00:32:40] Speaker 04:
Yes, well, the recent case of the Supreme Court in Mayan, I guess, in North Carolina, establishes that there could be a mistake about the law.

[00:32:50] Speaker 04:
But nevertheless, if it's a reasonable mistake, then it's still a constitutional.

[00:32:55] Speaker 02:
I'm sorry, where did your hands go?

[00:32:56] Speaker 02:
Where did your hands go?

[00:32:57] Speaker 02:
Was it a reasonable mistake of law for qualified immunity?

[00:33:00] Speaker 04:
Well, it's a recent case.

[00:33:01] Speaker 04:
I did inform counsel that we might mention it.

[00:33:05] Speaker 02:
I'm aware of what the Hein case held.

[00:33:07] Speaker 02:
I'm not sure how on earth that helps you when you have officer Squires making two subsequent orders that were completely obeyed and you couldn't, and forbidding him to comply with the first order.

[00:33:21] Speaker 02:
What is the basis for the arrest?

[00:33:22] Speaker 04:
Your Honor, the violation had occurred and whether or not it was

[00:33:30] Speaker 04:
You know, you take away the violation, that's an interesting question, but the point is that Officer Boyd didn't... I'm sorry, take away the violation.

[00:33:38] Speaker 02:
What basis, what reasonable basis did Officer Boyd have to think that he could arrest Mr. Fox at the time he arrested him?

[00:33:47] Speaker 04:
Well, Your Honor, I think the reasonable basis is a favor to obey a reasonable order of Officer Squires.

[00:33:56] Speaker 04:
But you don't really need to get into the new gallery.

[00:34:00] Speaker 02:
Without him ever having heard that order?

[00:34:04] Speaker 02:
He never heard any order.

[00:34:05] Speaker 04:
Well, under the collective knowledge doctrine, you have to get to the point that Officer Boyd should have realized that

[00:34:18] Speaker 04:
Officer Squires ordered Mr. Fox to move his car.

[00:34:22] Speaker 04:
Mr. Fox refused.

[00:34:23] Speaker 04:
That was the whole reason why Mr. Fox asked for Officer Squires to call the supervisor, because he thought wrongly that he wasn't illegally parked.

[00:34:31] Speaker 04:
But you don't have to get into the legality of Mr. Fox's arrest.

[00:34:34] Speaker 04:
It's enough from the point of view of Officer Boyd, who came to the scene after all this had happened.

[00:34:39] Speaker 04:
that he had no reason to second-guess Officer Squires' decision that there was probable cause to arrest Mr. Fox.

[00:34:48] Speaker 02:
Arrest?

[00:34:48] Speaker 02:
Wait.

[00:34:50] Speaker 02:
Officer Squires never thought there was probable cause to arrest for a civil parking violation?

[00:34:56] Speaker 04:
No, that he wasn't arrested for a civil parking violation.

[00:35:00] Speaker 04:
Now, it's true, he was arrested for disorderly conduct, but we mentioned in our

[00:35:05] Speaker 04:
you know, judgment of the pleadings, that there was a perfectly valid ground for officer Squires to arrest, a failure to disobey the order of a police officer.

[00:35:13] Speaker 04:
But you don't have to get to the legality of Mr. Fox's arrest, because Mrs. Fox has not shown that any clearly established right was violated by Officer Boyd's very minimal intrusion in this case.

[00:35:30] Speaker 02:
So let me just be clear.

[00:35:31] Speaker 02:
Here's my one question.

[00:35:35] Speaker 02:
if if if we were to determine that the arrest was clearly unconstitutional it wouldn't make a difference isn't it isn't it pretty well established

[00:35:47] Speaker 02:
that you don't have authority to haul others out and put them against a car or against a wall if the arrest itself is unconstitutional.

[00:35:58] Speaker 02:
Your authority to control the scene for an arrest is for a lawful arrest under Supreme Court precedent.

[00:36:05] Speaker 04:
Yes, but the question is whether officer, a reasonable officer, the position of Officer Boyd would have, could have reasonably believed that Mr. Fox was properly detained.

[00:36:17] Speaker 04:
Clearly his car was parked in violation of traffic regulation.

[00:36:20] Speaker 04:
That's not clear from the complaint either.

[00:36:24] Speaker 04:
You know, I read the complaint that he could not possibly suggest any other scenario that, you know, he moved into a perfectly fine place, because I don't think there is anything around there in any case.

[00:36:36] Speaker 02:
Well, you're saying you think, but you don't.

[00:36:37] Speaker 04:
No, no, the complaint does not plausibly suggest anything.

[00:36:42] Speaker 04:
It plausibly suggests that he was stopped right in his tracks when he turned his engine on.

[00:36:50] Speaker 03:
You would agree that there's a lot of inferences from the complaint, correct?

[00:36:54] Speaker 03:
Well, but it's her burden of showing... So that's why I asked you, on a 1983, is Mrs. Fox entitled to the reasonable inferences?

[00:37:05] Speaker 04:
Is she entitled to what?

[00:37:07] Speaker 03:
Is she entitled to the reasonable inferences from the complaint?

[00:37:11] Speaker 03:
Well, yes, but she has a burden of... I understand, but I'm still back in the facts.

[00:37:17] Speaker 03:
I don't think we're disagreeing, candidly, on these legal principles that the Supreme Court has established.

[00:37:24] Speaker 03:
We're just trying to find out if they are applicable under these facts.

[00:37:29] Speaker 03:
And isn't that the critical issue here?

[00:37:34] Speaker 03:
Is this an appropriate case for judgment on the pleadings?

[00:37:37] Speaker 04:
Well, she has the burden of producing a complaint that plausibly suggests that Officer Voight violated her clearly established constitutional rights.

[00:37:48] Speaker 04:
That is her burden.

[00:37:48] Speaker 03:
So she's arguing that she was asking a legitimate question.

[00:37:55] Speaker 03:
She got no answer.

[00:37:57] Speaker 03:
She got an abrupt statement to shut up.

[00:38:00] Speaker 05:
Yes.

[00:38:01] Speaker 03:
And she was told or she'd be arrested.

[00:38:04] Speaker 05:
Yes.

[00:38:04] Speaker 03:
She started to cry.

[00:38:07] Speaker 03:
And he told her to get out of the car and put her hands on the roof.

[00:38:13] Speaker 03:
That's her situation.

[00:38:16] Speaker 04:
But we believe that under the circumstances.

[00:38:18] Speaker 03:
And we don't know from this complaint exactly what Officer Boyd knew when he arrived on the scene other than that squires told him

[00:38:29] Speaker 03:
Mr. Fox had an attitude problem.

[00:38:32] Speaker 03:
And at that point, he puts Mr. Fox in handcuffs.

[00:38:36] Speaker 04:
Well, a reasonable officer coming to the scene, like Officer Boyd, would have realized that there was a traffic violation and... Maybe he would have, maybe he wouldn't.

[00:38:46] Speaker 03:
It's just not in the complaint.

[00:38:47] Speaker 04:
Well, you have to assume that the officer has his eyes open and he looks... You answer my question about who gets the reasonable inferences here.

[00:38:56] Speaker 04:
Well, she has the burden, under Ipoh Drabli, of putting forth a plausible set of facts in her allegations that would allow... Reasonably viewed from her perspective.

[00:39:09] Speaker 04:
Yes.

[00:39:10] Speaker 03:
You agree with that?

[00:39:11] Speaker 04:
I just couldn't hear you.

[00:39:13] Speaker 03:
Reasonably viewed from her perspective, correct?

[00:39:16] Speaker 04:
Yes.

[00:39:17] Speaker 03:
All right.

[00:39:17] Speaker 03:
And you've been citing a lot of authority for these arrest cases where it's the reasonable officer.

[00:39:26] Speaker 03:
And I'm just trying to see how these two lines of authority come together.

[00:39:30] Speaker 04:
Well, qualifying the intercourse is judged from the point of view of a reasonable officer.

[00:39:34] Speaker 04:
I mean, motive has motivation.

[00:39:36] Speaker 04:
I think Mrs. Fox spent a lot of time about the motives of Officer Squire, but those are really irrelevant.

[00:39:41] Speaker 04:
The question is whether a reasonable officer in officers

[00:39:45] Speaker 04:
Boyd's position coming to the scene would have violated her clearly established constitutional rights for the very minimal intrusion.

[00:39:56] Speaker 04:
There was no fiscal conduct.

[00:39:59] Speaker 04:
He didn't even ask for identification.

[00:40:01] Speaker 04:
He said, get out of the car.

[00:40:03] Speaker 04:
put your hands on the hood so I can see them.

[00:40:05] Speaker 04:
I think we've cited a Third Circuit case where an officer had a passenger put his hands up in the air and that was perfectly okay under the Third Circuit.

[00:40:13] Speaker 04:
Now, again, against all these cases we cite, there's not a single case cited by

[00:40:21] Speaker 04:
the, uh, Mrs. Fox, uh, for the clearly established rights.

[00:40:25] Speaker 04:
Her opening brief doesn't mention it at all, and I think that's, you can't raise arguments for the first time in your reply brief.

[00:40:32] Speaker 04:
In any way, if you look at a reply brief, all she talks is in generalities.

[00:40:36] Speaker 04:
There's no specific case dealing with a particular type of conduct that Officer, uh,

[00:40:43] Speaker 04:
boy, you know, engaged in in his very temporary detention of Mrs. Fox and it itself

[00:40:53] Speaker 04:
Given the obligation of Mrs. Fox to state a complaint that plausibly gives you a basis for inferring that clearly established constitutional rights were violated, it just isn't here.

[00:41:09] Speaker 04:
During the entire proceeding, including your reply, if she hasn't cited a single case,

[00:41:16] Speaker 04:
that has anything close to the facts of this case.

[00:41:19] Speaker 04:
And we believe that the district court correctly held that Mrs. Fox failed to prove that Officer Boyd violated her clearly established constitutional rights and that the court should be affirmed.

[00:41:32] Speaker 03:
Thank you.

[00:41:33] Speaker 04:
Thank you very much, Your Honor.

[00:41:34] Speaker 03:
Council for Appellant, do you want a minute or so?

[00:41:42] Speaker 01:
Thank you, Your Honor.

[00:41:43] Speaker 01:
I'd just like to address the failure to comply argument that counsel made.

[00:41:48] Speaker 01:
First of all, it's worth noting that the defendants in this case made this point before Judge Jackson.

[00:41:55] Speaker 06:
I'm not sure what you're addressing exactly.

[00:41:57] Speaker 01:
I'm sorry.

[00:41:59] Speaker 01:
Counsel argued that the officers had a constitutional

[00:42:06] Speaker 01:
I misunderstood what you said.

[00:42:10] Speaker 06:
Yes, sir.

[00:42:13] Speaker 01:
And the defendants reached this point or made this point in their judgment on the pleadings papers.

[00:42:22] Speaker 01:
And Judge Jackson, if you look at the appendix pages 101 to 102, addressed those and, in summary, basically said there's not enough facts in the pleadings to reach a disposition on that point.

[00:42:35] Speaker 01:
And so therefore, I think that's a good point.

[00:42:36] Speaker 01:
It's not appropriate to grant that motion on that point now until further factual development has been made through discovery.

[00:42:45] Speaker 01:
So now that Officer Boyd is asking this Court to reach a decision on the merits of that argument when the finder of facts found that there were insufficient facts to do so, and I think that's improper and certainly a good reason why this Court should remand the case to the District Court for further factual development.

[00:43:03] Speaker 03:
All right, thank you.

[00:43:03] Speaker 03:
We'll take the case under advisement.