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Case number 15-5238, Ronald M. Smith, appellant versus United States of America at L. Mr. Latimer for the appellant, Mr. Nebucher for the appellate.

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Morning, Mr. Latimer.

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Morning, Your Honor.

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Gregory Latimer on behalf of the Atomic Ronald Smith.

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Mr. Smith's case arises from the lower court granting a motion for summary judgment and a 12b6 motion with respect to plaintiff's claim for intentional infliction of emotional distress.

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The case arises, Mr. Smith is a driver for

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head of a government agency and he drops him off on Capitol Hill for some hearings.

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He's approached by a police officer.

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And apparently the police officer had some problem with where he dropped him off.

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And he pulls away and the police officer then alleges that Mr. Smith struck him with his vehicle, brushed his leg with his vehicle, which obviously from the videotape is inaccurate.

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He then writes out reports indicating that he was disabled.

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because he was struck by the vehicle, which again was a blatant falsehood and a misrepresentation of fact.

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Putting aside the

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what I think is referred to somewhere in the record as an exaggeration or a falsehood about whether the car struck Mr. Rogers in the common sense use of the term.

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That's not required under DC law that there be physical contact between the car and the officer in order for there to be assault on a police officer.

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So if you could just put that aside and say what the district court

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sustained was that the officer Rogers had probable cause to believe that the individual was driving the car toward him, that he was driving it inappropriately quickly, that he was in a situation of endangering the police officer.

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Well, the problem with that whole concept was that the district court did this on the basis of summary judgment prior to any discovery taking place and did it based on the pleadings.

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The district court made a decision that it could look at the video

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and determined all of these things that the officer was put.

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The issue of problem will call us normally if there are facts that are indisputed as a question for the jury.

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And so the district court in this situation took a video and decided that there were no undisputed facts if you look at this video.

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However, we pointed out a number of things, not the least of which was an affidavit

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from Mr Smith indicating what he did in terms of the vehicle is vehicle.

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His wheels were always turned to the left.

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He never drove towards the officer.

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His vehicle never came into contact with him.

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It could not have possibly have come into contact with his left leg because his right leg was in front of him.

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He was walking to the right while he was walking to the left.

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So all of those facts

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if presented to a jury and a jury accepts those facts as true, would have precluded summary judgment.

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The trial court

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inexplicably decided that the facts should be viewed in the light most favorable to the government and not to the plaintiff.

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And that's the problem with the entire thing because a copy of the video has been provided to the court and there are still photographs that are in the record of this proceeding and

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Several, the seconds as he's walking away, the wheels are turned to the left.

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As he crosses the car, the wheels are turned to the left.

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As the officer walks towards the area where he's sitting, the wheels are turned to the left.

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When he pulls away, the wheels are turned to the left.

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As he's pulling out of the driveway, the wheels are turned to the left, and the officer at all times is walking to the right.

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So it is a reasonable juror could conclude that based upon that, that it is not true that he drove towards someone, because if you're going left and a person is going right,

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Some people could say, well, that doesn't mean that you're going at that person.

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And that is a factual determination that the trial court made that was entirely inappropriate, we believe, under the circumstances.

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And so that is one reason why the decision was wrong.

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But the trial court didn't... Your position is that your client didn't commit an assault with a deadly weapon.

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Absolutely.

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That's not the issue.

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But the issue is whether a reasonable jury... No, that's not the issue either.

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The issue is whether it was probable cause of the lead he did, which is a different question than the ultimate merits question, which is what you're arguing.

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Well, I think they go hand in hand.

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Number one, it didn't happen.

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And number two, there's no probable cause to believe that it happened.

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But again, the probable cause question is not a question for the court unless the facts are understood.

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That's not exactly.

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I mean, I think that

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Judge Randolph's question really gets to the posture in which we have to view this case, which is, not did it happen, but would a reasonable officer in Rogers' position, perceiving what he perceived,

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perceiving what he perceived have had a basis to arrest.

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It may have been that Mr. Smith was looking over his shoulder, was just doing a maneuver he's done a million times, was not aiming in any way, was not in any way intending to endanger Officer Rogers.

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But Officer Rogers turns around and there's a car almost upon him and he's just had an argument with this

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driver and he thinks this is extremely threatening.

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So that's the question.

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Does he, based on the undisputed evidence of record at the time, meaning the complaint and the videotape, which is all the district courts that she relied on,

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does that support probable cause?

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Or is there anything that discovery that you've asked for in discovery as a result of your Rule 56D declaration, is there anything that could change that?

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And I'd love your answer, because you do appropriately have a Rule 56D affidavit from you saying, hey, this is premature, I want discovery.

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Can you tell us what

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discovery you would have wanted to take that you think could have made a difference to the probable cause of an officer perceiving what Rogers perceived.

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But I think that the record already has that, to be honest with you.

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Because if the officer, when you're looking at the probable cause determination, you just don't stop at what the officer says.

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Because the totality of the circumstances here are, if the officer actually believed

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that there was a reasonable basis for him to go forward just on that.

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He wouldn't have lied about the vehicle brushing his leg.

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If the officer actually... No, I mean, that's not necessarily so.

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There's two different questions.

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And the second one that you raised raises a hard and interesting question about your claim on emotional injury.

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The subsequent lie seems to me you can't arguably separate out.

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And it may go to your claim that what they did caused the emotional injury you're claiming, and that shouldn't have been dismissed the way it was.

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But on finding a probable cause, you didn't need that.

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That lie was on top.

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They thought it was icing on the cake.

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We have to assess it the way they assessed it, which is,

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the car passing closely after an argument and whether or not that was probable cause.

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The fact that they lied, if they did, doesn't nullify what initially prompted the arrest.

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Well, what initially prompted the arrest according to the officer was he brushed his left leg with the vehicle.

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That's what the officer said.

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No, no, no, no.

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You know, that's what they wrote in the form.

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That's what the officer said.

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That's what the officer who was there, that was what he said.

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Anasio, who was the second officer, then indicated that he viewed the videotape and that he too agreed with the officer's position.

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The issue here was always not that he came close

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The issue was that he brushed his leg, his left leg, with the vehicle.

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And what we're saying is that if we are allowed to conduct discovery, I mean, there were several witnesses.

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And those witnesses were there.

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And again, we have the testimony of Mr. Smith, who also gets to weigh in on this calculus of what was going on.

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And while the officer gets to say what the facts are,

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The court didn't rely on the facts.

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The court said that based on her viewing, no reasonable juror could make a determination that he was not driving his vehicle at the officer.

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And that doesn't make sense, since the wheels are turned to the left and the officer is walking to the right.

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And so what we're saying is, at a minimum, at a minimum,

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discovery should have been allowed.

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Can you identify again, you may have done this, and excuse me for pressing the point, but what is the discovery that you might get that would make a difference?

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One of your answers, I think, was there's a lot already in the record that you would work with if you were to present this to a jury.

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Correct.

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interested in whether there's anything additional people you would depose, and what kind of information, if you would elicit it from them, do you think legally would be material and make a difference?

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One of the things that the trial court relied upon was a supposedly heated argument that ensued.

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And from our perspective, there's no evidence of a heated argument as being a basis for how he might act.

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And so one of the things that we will get into is, why did this happen in the first place?

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Was there a heated argument or was this is the situation where the officer was upset with the driver who had no call over where he'd let off a head of an agency.

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But as I said, there are witnesses that we did not get to depose.

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We did not get to talk to.

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And at my last count, there were three witnesses.

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who were sitting close to or at the scene.

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I don't think she's relied on

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I mean, the emotion of the parties doesn't bear on the issue.

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The issue is he turns around.

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Rogers, as we see in the videotape, the car seems to be coming toward him.

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It comes a little too quickly and a little too close.

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Whether the two had ever exchanged any words or not, does it legally bear on the probable cause inquiry?

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I don't think that whether or not

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there was an argument would bear on that.

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But again, when you're talking about probable cause, the probable cause issue is not one for the court unless the facts are undisputed.

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Right.

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The material facts.

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And the facts here, if the vehicle is not, if you didn't drive towards the officer,

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clearly there would not have been a basis for an assault charge.

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Let me take you back to your earlier response to me where I said I think there are different questions about what he wrote on the form and what prompted the arrest.

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When he transmitted a call

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for help and backup, which resulted in the arrest.

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He did not claim that he was hit.

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He said, intentionally almost struck this officer.

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That's what prompted the arrest.

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The subsequent lie is a different, separable, and I'm trying to think that one through.

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It's a different, separate issue.

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And so you're not correct in saying the officer always claimed

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I invoked an arrest because I was hit.

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That's not what happened.

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What he did was to call in and say, he almost hit me.

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It was intentional.

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Get him.

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And they arrested him.

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And I think that that is a very important point, because that is exactly what he said.

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And then when he arrived on the scene, when Mr. Smith had been stopped, he then said he brushed my leg with the vehicle.

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So he changed his story.

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from almost having, is that in the record?

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Yes, because he goes to the hospital.

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And then he feels out of form, and he says he's disabled.

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Did he say, I'm causing this arrest to happen because he brushed my leg?

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When he went to the scene where he was stopped, Mr. Smith, when he goes to the scene, the officer goes to the scene, he informs the other officers that, yes, this is the individual.

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He brushed my left leg.

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And at that point, he asked to go to the hospital.

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because he claims we have been injured.

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But that is the whole point of this.

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When you're talking about a probable cause determination, you don't just look at what the officer says and stop the inquiry.

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It is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a, it is a,

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that shows that what he says happened did not happen, could not possibly have happened simply because of the physical nature and the physical positioning of the individuals.

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Well, it depends when you say what he says happened.

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I mean, that depends on what you're buying.

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Intentionally almost struck the officer or brushed my leg.

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I don't think it's over the same thing.

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Right, they're not, but he said both.

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Exactly.

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And I think that that goes to whether or not the issue of probable cause is one for the jury or one for the court, because it is not undisputed at that point.

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That is a material fact in dispute.

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That's a question, a legal question, whether it's material.

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And let me just focus you on, so let's say you have a case in which an officer witnesses

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two guys, and the one guy hits the other in the face.

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And they're continuing to tumble, but he calls in, you know, I've just seen simple assault, somebody hit somebody in the face.

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And then he fills out a form, and he embellishes like crazy, he said, and then he kicked him, and then he rolled him on the street, and then he kicked him again, and then he hit him in the head again.

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The question is, okay, there was in the first telling,

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an assault, there was an offense, and then there's some embellishment.

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And the question is, so assuming, if you're with me on my hypothetical, that the first thing is, in fact, an arrestable offense,

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Does it matter for the purposes of sustaining probable cause that there was embellishment?

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Maybe that officer should be disciplined, that's a falsehood, but legally in terms of whether the probable cause is sustainable, I'd love your thoughts on why and whether

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that matters.

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Let me start off by first saying that when police officers throw out false reports and they lie, I don't think that we can just say that's embellishment because you have an obligation to tell the truth and you can be punished with a criminal offense.

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But having said that,

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What I'm saying in this case is the scenario that you give is entirely different.

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If, in fact, there was no dispute that an assault had occurred, whether or not the assault involved kicking, punching, or just punching is one thing.

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But in this situation, you have what the trial court didn't even look at and told us that she didn't look at.

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It was an affidavit from Mr. Smith indicating exactly what he did

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And what occurred from his standpoint in that he was turning his vehicle to the left at the time he turned in.

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He was turning his vehicle to the left at the time that he left.

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He never drove towards the officer.

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He never went towards the officer.

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And it was impossible for an assault to have occurred because he did not come close to his left leg.

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That wasn't taken into account.

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Well, you know, frankly, in all due respect, that is belied by the video.

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It just that that scenario, if you have to win on that, he picked up speed.

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I watched the video many times.

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He picked up speed.

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He could have made a turn that was nowhere near the officer.

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He started in that direction.

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Yeah, he started to pull sharply left because otherwise he actually hit him.

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But he doesn't need to actually hit him to assault him.

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He cut the angle as close as he could, and if all you have is that argument, you're in trouble.

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Well, I understand that, but I would respectfully disagree with Your Honor.

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And I would say to you, Your Honor, if you look at the still photographs... I'm looking at the video.

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If you look at the video, then what you will see is this.

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You will see that the wheels were turned to the left.

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I have no doubt he didn't want to hit him, but he was cutting it close.

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He did not have to cut it.

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And he picked up speed.

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What I'm saying is this, Your Honor.

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The wheels were turned to the left before the officer got to the car.

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You don't pick up speed.

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That's true.

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The wheels were turned to the... But you don't pick up speed.

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When as a person, at least you and I don't, I don't think, you don't, do you?

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If someone's right there and you know from...

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your angle positioning, you're going to cut this close, you pick up speed.

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What I'm saying is, what I'm saying is, the only way that you can

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change the direction of a vehicle is to turn the wheels.

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Or you can go slower.

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Or stop or back up or go slower.

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Exactly.

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Or go slower.

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Right.

[00:19:18] Speaker 02:
But that is a way, you're saying that he should have done something a certain way as opposed to doing it another way.

[00:19:24] Speaker 03:
No, we're saying he shouldn't have done something.

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Or we're suggesting he shouldn't have done what he did.

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I understand.

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He had many options available.

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And one was to continue left.

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Speed, speed, picks up speed.

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With all due respect, that video, not only can you not hear sound, you cannot tell speed.

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You, nor I, nor anyone here can tell us whether that vehicle was traveling at 10 miles an hour, or 8 miles an hour, or 11 miles an hour.

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Can I properly ask the question as I'm looking at it, could he have gone more slowly?

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Of course it could have.

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But that doesn't mean that you are doing something that's wrong.

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What that means is that you're pulling away.

[00:20:09] Speaker 01:
But could, was it reasonable for an officer in Roger's position, who has back turned when Smith is pulling away from, and we see this in the video, when Smith is pulling away from the curb, turns, right as it's close, and is startled to see a vehicle, which even going at eight miles an hour could kill a man,

[00:20:29] Speaker 01:
Right there.

[00:20:31] Speaker 02:
Right there.

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When you say right there, there's no way to tell the distance between him and the vehicle.

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If you're asking me, you show me that video, and you say, would you feel comfortable standing there and having cars pass you at the speed he was going that closely?

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I would say, thank you.

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I'd pass on that opportunity.

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I mean, watching the video, you can tell enough about the distance in proportion to the size of a person and the wheels.

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to feel uncomfortable.

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I have to tell you that this is, you know, Scott versus Harris looms very large in this case in the sense that

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I think a video does not always tell the full truth and is like real life and we're all there.

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Videos also, like documents, like photographs, like physical evidence, is fallible, is partial, has a certain perspective.

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As you point out, the speed is not accurate on this video, which is why I'm probing you on what it is that you think would be material

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material that would help us see the partiality of the video and the things you've said to me so far.

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I don't find to be legally material in the sense that what Smith intended, what his plans were, whether he was trying to go toward the office or just trying to turn, to me that's not material.

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Because the question is, does Officer Rogers standing and seeing what he saw have probable cause?

[00:22:01] Speaker 01:
You mentioned that Rogers' story is getting, he seems to be telling things that didn't happen.

[00:22:07] Speaker 01:
Again, I'm not sure that's material to whether a reasonable officer objectively standing in his position had probable cause, so I guess I'm going to ask you that question one more time and let you sit down.

[00:22:18] Speaker 01:
What would you have wanted, other than a jury's judgment, actually in terms of evidence or testimony, to put that video in context?

[00:22:28] Speaker 02:
But I think that the credibility issue and what I'm hearing from the court.

[00:22:35] Speaker 02:
Credibility on what issue?

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On all of the issues.

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Again, I think that this case turned on credibility.

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You have an officer, in my view, telling you that a car was coming towards him when the car is turned to the left at all times.

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I don't see

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And I think a reasonable jury could take the position that in order for me to drive towards you, if you're going to the right, I have to at least turn the wheels.

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I don't understand how that could be taken from a juror to make a determination as to whether that should be taken away from them.

[00:23:20] Speaker 02:
And couple that with the fact that even if you assume that, that he had probable cause for the initial arrest, certainly the prosecution with false statements

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And the malicious that that constitutes malicious prosecution.

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When you have false statements, lies about what happened, you actually go to the hospital and claim that you were struck by a vehicle when you didn't.

[00:23:52] Speaker 02:
You're pulled out of an interview by your superiors.

[00:23:55] Speaker 02:
to stop you before you take this too far because they know your line and then to say that that is not an infliction of emotional distress when this man is under prosecution.

[00:24:07] Speaker 03:
That may be a different issue.

[00:24:09] Speaker 02:
Well, I think they all go together.

[00:24:10] Speaker 02:
Well, this is different.

[00:24:12] Speaker 02:
I understand.

[00:24:13] Speaker 02:
That's why I said, aside from the probable cause only goes to the arrest.

[00:24:17] Speaker 02:
Right.

[00:24:18] Speaker 02:
And so what I'm talking about are those other things.

[00:24:21] Speaker 02:
Right.

[00:24:22] Speaker 03:
And you're trying to refute the government's claim is even if they win on probable cause, they can take it all the way through, including intentional infliction of emotional.

[00:24:30] Speaker 03:
Yeah, I think that's an interesting issue.

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

[00:24:34] Speaker 01:
Is that right?

[00:24:35] Speaker 01:
Because I thought that if there's probable cause that all of the claims become defective on that ground, that you can't bring an intentional affliction of emotional distress for false imprisonment without probable cause.

[00:24:48] Speaker 01:
I mean, if it was probable cause.

[00:24:51] Speaker 02:
I think that if you learn that probable cause no longer exists, and then

[00:25:00] Speaker 02:
I mean, perjurer's liability is a viable claim.

[00:25:03] Speaker 01:
But your hypothetical is assuming that we find no probable cause.

[00:25:07] Speaker 01:
What if we disagree with you?

[00:25:09] Speaker 01:
I understand that's not your position.

[00:25:12] Speaker 01:
But if we were to find that there was probable cause based on Mr. Smith approaching but not brushing or hitting

[00:25:22] Speaker 01:
rogers's leg if that's probable cause my question is don't all the other claims fail because of the president that let me add to that and make sure i understand your i thought your argument was at least implicitly that

[00:25:37] Speaker 03:
Maybe probable cause or not, you don't think so.

[00:25:40] Speaker 03:
But you still have more to go, including the prosecutor's decision as to whether or not to prosecute.

[00:25:45] Speaker 03:
And in this case, that became paramount in terms of the intentional affliction of most.

[00:25:50] Speaker 03:
There's no guarantee a prosecutor's going to prosecute.

[00:25:53] Speaker 03:
And if someone is lying,

[00:25:55] Speaker 03:
That embellishes the case and makes it more likely that the prosecutor will continue.

[00:26:00] Speaker 03:
And the prosecutor's continuance here is what I thought you were arguing was causing the... That's what his will fell apart as a consequence of it.

[00:26:08] Speaker 03:
District Court had sealed everything, could have been dropped.

[00:26:11] Speaker 03:
If the lie had been known and understood, prosecutor would have dropped it.

[00:26:16] Speaker 03:
You're saying he kept pressing.

[00:26:18] Speaker 02:
Right.

[00:26:20] Speaker 02:
I think you have that answer.

[00:26:22] Speaker 03:
Judge Pillard, they're separate.

[00:26:24] Speaker 03:
The probable cause would not allow us to assume that a prosecutor may continue to prosecute when there is a known fabrication undergirding the case.

[00:26:34] Speaker 05:
Correct.

[00:26:35] Speaker 05:
Did you put a document or an affidavit in with respect to the officer's trip to the hospital?

[00:26:47] Speaker 02:
I believe the

[00:26:54] Speaker 02:
It's 1 30 J. A. United States Capitol Police report of temporary disability.

[00:27:03] Speaker 05:
But there's no hospital.

[00:27:05] Speaker 05:
Um, I'm just wondering, where do you, uh, if you went to the hospital, there it is.

[00:27:15] Speaker 02:
Uh, if you look at the report, yeah, healthcare provider for rendering treatment, Washington Hospital Center.

[00:27:22] Speaker 05:
Where is that?

[00:27:23] Speaker 02:
If you look at 130, and then you look at the middle of the page, under one, and you see health care provider, Washington Hospital Center.

[00:27:37] Speaker 05:
Well, what was he treated for?

[00:27:39] Speaker 05:
He claimed the car hitting his head.

[00:27:43] Speaker 05:
But they look at his leg, and if the car didn't brush him,

[00:27:47] Speaker 05:
There's nothing there.

[00:27:49] Speaker 02:
That was the point.

[00:27:50] Speaker 02:
There was nothing there.

[00:27:52] Speaker 02:
And yet he made the claim.

[00:27:55] Speaker 02:
It was all alive.

[00:27:56] Speaker 05:
It brushed him.

[00:27:57] Speaker 05:
He said, you know, right, I don't want to get into the detail because it seems to me it doesn't matter.

[00:28:03] Speaker 05:
But I noticed the officer limping.

[00:28:07] Speaker 05:
I'm sorry.

[00:28:08] Speaker 05:
I noticed him limping when I looked at the video.

[00:28:14] Speaker 02:
Well, that would have been interesting.

[00:28:16] Speaker 02:
If he was limping, it was because he was limping.

[00:28:19] Speaker 02:
But he wasn't struck by a vehicle.

[00:28:22] Speaker 02:
That's a fact.

[00:28:24] Speaker 02:
And it certainly wasn't his left hand.

[00:28:27] Speaker 05:
I don't know.

[00:28:29] Speaker 05:
Somebody brushed by me.

[00:28:31] Speaker 05:
Does that mean they hit me?

[00:28:33] Speaker 05:
Well, yes.

[00:28:35] Speaker 02:
That means you brush your leg.

[00:28:36] Speaker 02:
You have to make contact to brush.

[00:28:39] Speaker 05:
Yeah, but you don't have to make contact to be guilty of an assault.

[00:28:44] Speaker 05:
And that's all that matters.

[00:28:45] Speaker 02:
But I was just responding to your thing that he was limping.

[00:28:49] Speaker 02:
I mean, Judge, the fact of the matter is, no matter who views this video, nobody, nobody who has sight

[00:29:01] Speaker 02:
can say that he struck his left leg.

[00:29:05] Speaker 02:
His left leg, which is what he claimed, his left leg was not physically in a position to be struck.

[00:29:14] Speaker 05:
He didn't say I was struck.

[00:29:15] Speaker 05:
He said it was brushed.

[00:29:16] Speaker 02:
Brushed.

[00:29:17] Speaker 02:
His left leg was not in a position.

[00:29:20] Speaker 02:
The only way his left leg could have been brushed, approached, or anything was if he ran through his right leg.

[00:29:29] Speaker 02:
because his right leg was closest to the car.

[00:29:33] Speaker 02:
His left leg was farther away.

[00:29:36] Speaker 02:
Nobody was sight could conclude that the left leg was brushed.

[00:29:45] Speaker 02:
I see that my time is up.

[00:29:47] Speaker 02:
Uh, I would ask for a couple of minutes for rebuttal.

[00:29:51] Speaker 01:
We'll give you a little bit of time.

[00:29:52] Speaker 01:
Mr Latimer.

[00:30:02] Speaker 01:
Mr. Nemecher.

[00:30:03] Speaker 04:
May it please the court.

[00:30:06] Speaker 04:
On behalf of the Apple Ease, I think Judge Edwards has pretty much nailed it when he said that the video belies the claim made by Mr. Smith in this case.

[00:30:17] Speaker 04:
Mr. Smith files an affidavit that is completely at odds with the video in that he says he went in the quote exact opposite direction from where the officer was.

[00:30:27] Speaker 04:
The plaintiff's counsel has focused on who's on the left and who's on the right.

[00:30:31] Speaker 04:
I think it depends on whether you're talking about moving to the right on the video or moving to the right from where the driver was.

[00:30:37] Speaker 04:
I don't think it matters whether you call it left or right or the other left or the other right.

[00:30:42] Speaker 04:
What matters is if you look at that video, it is indisputable

[00:30:46] Speaker 04:
that the right front corner of that car went from farther away from the officer to very close to the officer.

[00:30:54] Speaker 04:
And that, we believe, supports probable cause.

[00:30:58] Speaker 04:
And probable cause is fatal to his claims, certainly as an absolute legal matter with respect to all but the intentional infliction of emotional distress claim, as a minimum, as a practical matter on the intentional infliction of emotional distress claim.

[00:31:14] Speaker 01:
It's a little concerning that we really can't tell what the distance is and we can't tell how fast the car is going and that not all, I mean you must know this well from your line of work, not every video is

[00:31:29] Speaker 01:
the full and whole story.

[00:31:31] Speaker 01:
Wouldn't it have been better practice to have not done this on a motion to dismiss?

[00:31:37] Speaker 04:
I would disagree, and I'll explain why.

[00:31:39] Speaker 04:
First of all, it is absolutely clear, if you look at that video, that that right corner went from the width of the car, twice the width of the car, away from the officer, and it did in about a second.

[00:31:53] Speaker 04:
Now, more importantly, Your Honor had asked, Judge Pillard, you had asked what the discovery was that plaintiff's counsel had indicated plaintiffs needed below.

[00:32:04] Speaker 04:
And it was not relevant to the question, the core question that we all admit, which is probable cause.

[00:32:13] Speaker 04:
And that's because what he asked for was to depose the two named defendant officers.

[00:32:19] Speaker 04:
I'm looking at the Joint Appendix 116 to ascertain why they took the actions that they took at the time that they did so.

[00:32:29] Speaker 04:
And the plaintiff needs to depose Ms.

[00:32:31] Speaker 04:
Bernhardt, that's the disinterested non-police witness, about her actual observations, which are somewhat at odds with the video.

[00:32:40] Speaker 04:
So, first of all, you may recall that the district judge didn't rely on Ms.

[00:32:44] Speaker 04:
Bernhardt's declaration, possibly with the exception of authenticating the video, which plaintiff agrees is authentic and urged the court to review.

[00:32:55] Speaker 04:
So let's go back to why you needed to take depositions of the officers.

[00:32:59] Speaker 04:
He wanted to find out why they acted, but it's an objective standard whether there was probable cause.

[00:33:04] Speaker 04:
So you didn't need to get their subjective intent.

[00:33:06] Speaker 01:
Although isn't it part of

[00:33:08] Speaker 01:
Mr. Latimer's point, you say the district judge didn't rely on Ms.

[00:33:11] Speaker 01:
Barnhart, and he's saying, yeah, but if I had been able to depose her, she might have provided useful evidence supporting my client's claim that's inconsistent with the video and that helps me put the video in context.

[00:33:23] Speaker 01:
So the fact that the district judge didn't rely on it

[00:33:26] Speaker 01:
doesn't alone make it not material.

[00:33:28] Speaker 04:
Accept that.

[00:33:29] Speaker 04:
What you're asking is, what information was known to the officers at the time of the arrest?

[00:33:35] Speaker 04:
That's what you have to consider on determining whether there was probable cause, or you're going to examine qualified immunity, which some courts have called arguable probable cause.

[00:33:43] Speaker 01:
Which includes their perception and what she sees could put what they likely saw in perspective known.

[00:33:51] Speaker 04:
Except that she provided her statement to the officers and the officers provided that statement to the prosecutor And the prosecutor was still prepared to go forward months later after hearing all this having seen all those reports knowing that they were lies Well, no, I have a real problem and I heard my colleague and I think there is case law to support

[00:34:12] Speaker 03:
the general notion that probable cause gets you all the way through.

[00:34:16] Speaker 03:
I don't think that's a viable notion in a case like this because we're talking about separable pieces of a process.

[00:34:26] Speaker 03:
The arrest is one piece.

[00:34:28] Speaker 03:
So assuming there's probable cause to justify an arrest, okay, that's one piece.

[00:34:32] Speaker 03:
But now there's a next step.

[00:34:34] Speaker 03:
It does not follow that a prosecutor must

[00:34:37] Speaker 03:
indict and must charge merely because there's been an arrest.

[00:34:42] Speaker 03:
Certainly.

[00:34:42] Speaker 03:
So there is a next step and if an officer is flat out lying

[00:34:48] Speaker 03:
Let me finish.

[00:34:49] Speaker 03:
He's flat out lying.

[00:34:50] Speaker 03:
I mean, there's nothing on that video to suggest the guy was hit.

[00:34:54] Speaker 03:
If the officer... Well, my view of it, ten times, is he wasn't hit.

[00:35:00] Speaker 03:
If the officer is lying and his colleagues are saying to him, you're lying, and that all comes out, and the prosecutor is working with the lie, not knowing it's a lie, the prosecutor's decision is clearly being affected unless the prosecutor says,

[00:35:15] Speaker 03:
I'm proceeding.

[00:35:16] Speaker 03:
I'm tossing this report to nonsense.

[00:35:18] Speaker 03:
That's not the basis of my decision.

[00:35:22] Speaker 03:
If that really is a separate decision, it seems to me that can be a basis for emotional.

[00:35:26] Speaker 03:
Because his life then fell apart once that charge was made.

[00:35:29] Speaker 03:
He was done.

[00:35:30] Speaker 03:
The prosecutor pretty much did that, Judge.

[00:35:32] Speaker 03:
Where?

[00:35:33] Speaker 04:
In the December 12 discovery letter that was sent off to Mr. Smith's attorney in the criminal case.

[00:35:42] Speaker 04:
And in that discovery letter, he

[00:35:45] Speaker 04:
I'm getting it here.

[00:36:00] Speaker 04:
It starts on page 72 of the Joint Appendix.

[00:36:05] Speaker 04:
It goes on to page 73.

[00:36:09] Speaker 04:
It's actually the significant part here is on page 75.

[00:36:14] Speaker 04:
So this is the discovery letter that the prosecutor provides about three weeks, maybe a month after the arrest.

[00:36:22] Speaker 04:
And in this are all those reports that we've been looking at that say brushed or grazed, but that also say almost struck this officer and nearly struck the officer.

[00:36:34] Speaker 04:
What's the effect?

[00:36:36] Speaker 04:
So on page 75 to 76, the prosecutor says, in the radio run, Officer Rogers stated that your client's vehicle almost struck him.

[00:36:47] Speaker 04:
He also said that he was able to get out of the way.

[00:36:50] Speaker 04:
Officer Rogers told Sergeant Kennedy that your client's car almost hit him.

[00:36:55] Speaker 04:
After completing his written statement, Officer Rogers told Sergeant Kennedy that your client's car brushed him.

[00:37:01] Speaker 04:
Please refer to Sergeant Kennedy's memorandum.

[00:37:05] Speaker 04:
So that happens in December.

[00:37:06] Speaker 04:
We're still prosecuting the case up to April.

[00:37:09] Speaker 04:
So it's clear that the prosecutor is looking at the video and thinking the same thing.

[00:37:13] Speaker 03:
Oh, wait, wait, wait.

[00:37:13] Speaker 03:
Wait.

[00:37:14] Speaker 03:
Where did the prosecutor say when on discounting what's fabricated?

[00:37:18] Speaker 03:
He's what he's saying is here are all these facts, including fabricated stuff.

[00:37:23] Speaker 03:
If I'm a prosecutor, I think I'm going to be more inclined to think seriously about the case.

[00:37:28] Speaker 03:
If I see there's a possibility not only that there was an assault without a brushing, but it appears from the stuff that the officers are now giving me that he was brushed, went to the hospital.

[00:37:39] Speaker 03:
I'm going to be more interested in that case.

[00:37:41] Speaker 03:
There's nothing to indicate that the prosecutor said I'm discounting that.

[00:37:45] Speaker 03:
That's all nonsense.

[00:37:46] Speaker 04:
Well, what we know is that the prosecutor had the full state of facts that the officers provided to him.

[00:37:52] Speaker 04:
Both the ones that say, he almost struck me and he brushed me.

[00:37:55] Speaker 04:
I think what this adds to is the somewhat confusing belief we all may have, or at least Plaintiff's Council has, that brushing is the same as a full-on striking of the leg.

[00:38:11] Speaker 04:
You can brush somebody by running wind past your pant leg and feel like it's been brushed.

[00:38:19] Speaker 03:
Well, I got a wind bruise.

[00:38:22] Speaker 03:
Come on, counsel.

[00:38:24] Speaker 03:
Well, we know what he was.

[00:38:25] Speaker 03:
I mean, you've got to concede.

[00:38:26] Speaker 03:
I understand how you might argue it, but come on, you've got to concede that.

[00:38:29] Speaker 03:
He's trying to make the claim that he was hit.

[00:38:31] Speaker 04:
Well, he was told to go to the hospital, so.

[00:38:34] Speaker 03:
Then what?

[00:38:35] Speaker 03:
If he was honest, he would have said, there's no reason for me to go to the hospital.

[00:38:38] Speaker 03:
There was wind, but I didn't get hit.

[00:38:42] Speaker 03:
There's nothing wrong in the law enforcement system with honesty.

[00:38:46] Speaker 03:
You know, if your case is just straightforward assault, the prosecutor would honestly say, look, I have a straightforward assault.

[00:38:52] Speaker 03:
All this other stuff is off.

[00:38:54] Speaker 03:
That's all I'm relying on in charging.

[00:38:56] Speaker 03:
That's not what happened.

[00:38:58] Speaker 04:
But what did happen is the officers had probable cause to believe that he had assaulted the officer, and that's what he was arrested for.

[00:39:05] Speaker 03:
It doesn't matter.

[00:39:06] Speaker 03:
You're ignoring my argument.

[00:39:08] Speaker 03:
I'm saying, OK, I'll give you that for argument's sake.

[00:39:11] Speaker 03:
OK?

[00:39:11] Speaker 03:
I'm buying that.

[00:39:12] Speaker 03:
I can separate this as an intellectual matter and say there is a next step.

[00:39:17] Speaker 04:
I view this as somewhat similar to a bank robbery, where the banker says, yeah, I was robbed.

[00:39:24] Speaker 04:
That's the guy.

[00:39:24] Speaker 04:
You caught him out in the front parking lot with a mask and the gun and the money.

[00:39:29] Speaker 04:
He took $2,000 when he only took $1,000.

[00:39:31] Speaker 04:
as they think it will get $2,000 insurance or something.

[00:39:34] Speaker 04:
Could be a complete falsehood about how much money was in there, but it doesn't undo the probable cause.

[00:39:40] Speaker 04:
It doesn't undo the fact that he committed the bank robbery.

[00:39:42] Speaker 03:
But it may have some impact on the claim with respect to intentional infliction of emotional distress.

[00:39:47] Speaker 03:
Suppose the bank person is lying about something that affects sentencing.

[00:39:53] Speaker 03:
dramatically.

[00:39:54] Speaker 03:
And it's a big lie, and the prosecutor's going with that big lie.

[00:39:58] Speaker 03:
So your hypothetical doesn't work for me.

[00:39:59] Speaker 03:
Well, I'll tell you.

[00:40:01] Speaker 03:
See, what I'm saying is there is a next step.

[00:40:04] Speaker 03:
I'm willing to, in preparing this case, I'm willing to accept your argument for argument's sake that the arrest and probable cause, that piece is one thing.

[00:40:13] Speaker 03:
But then for me, there really is an important next step.

[00:40:15] Speaker 03:
What the prosecutor's decision is separate and apart from what the officers say.

[00:40:21] Speaker 03:
And the prosecutor can be affected by what the officers say.

[00:40:25] Speaker 04:
Although here, the prosecutor, let me back up just a minute.

[00:40:29] Speaker 04:
Remember, there are two individual defendants.

[00:40:32] Speaker 04:
One's in Yasso.

[00:40:33] Speaker 04:
He's the one who filled out the police reports.

[00:40:35] Speaker 04:
And he did it accurately.

[00:40:36] Speaker 04:
This is what was said.

[00:40:37] Speaker 04:
The chief of police said he thought, from his angle, that he brushed Roger's pant leg.

[00:40:44] Speaker 04:
The disinterested witness says he was very close to him.

[00:40:48] Speaker 04:
And she said, he almost hit you.

[00:40:51] Speaker 04:
So all those facts are going to the prosecutor.

[00:40:55] Speaker 04:
And Yasso wasn't there when the assault took place.

[00:40:59] Speaker 04:
So he's reporting it.

[00:41:00] Speaker 04:
You can't fault him for giving all the information to the prosecutor.

[00:41:04] Speaker 04:
That's what he's supposed to do.

[00:41:05] Speaker 04:
Let the prosecutor figure it out.

[00:41:07] Speaker 04:
Let ultimately a jury figure it out if that goes that far.

[00:41:10] Speaker 04:
And in this case, we know that the prosecutor got all these facts, and he was still prosecuting the case months afterwards.

[00:41:17] Speaker 04:
So it's not the kind of case where

[00:41:22] Speaker 04:
It breaches all bounds of decency.

[00:41:26] Speaker 04:
And that's what's required in the DC law.

[00:41:27] Speaker 03:
So you're saying, I'm not going to prolong this, but you're saying he prosecuted it, he's still prosecuting it months later.

[00:41:33] Speaker 03:
I'm thinking, like, an average citizen, the impact it has, that's not a helpful notion because your life is being turned upside down.

[00:41:41] Speaker 03:
While you're in the system, possibly on a claim that you hit an officer when, in fact, you did not hit an officer.

[00:41:49] Speaker 03:
And that may be causing the prosecutor to take all this time with a case that had the prosecutor known.

[00:41:56] Speaker 03:
There were fabrications, and if a jury got wind of all these lies, there's no way you'd even get a conviction on simple assault.

[00:42:05] Speaker 03:
The prosecutor had understood that initially.

[00:42:09] Speaker 03:
Factor that in, the prosecutors would have said to the police immediately, done.

[00:42:13] Speaker 03:
I'm not taking this case.

[00:42:14] Speaker 03:
And this guy's life wouldn't have been turned upside down.

[00:42:17] Speaker 04:
I think given the high standard for making out an intentional infliction of emotional distress claim in the District of Columbia, beyond all decency, I think this is more of an exaggeration than a completely fabricated this person.

[00:42:32] Speaker 03:
Just hope that you don't face a situation where you're having to deal with that kind of an exaggeration.

[00:42:37] Speaker 04:
Well, you will see that it was investigated, and I think appropriately so, but it doesn't mean, even if there was some shade of a falsehood in there, at most it's not a false arrest, false imprisonment, malicious prosecution.

[00:42:55] Speaker 04:
It comes down to what may be slander.

[00:42:59] Speaker 04:
And the Supreme Court has said in Sieger v. Gilley, that's not enough to make out a constitutional violation.

[00:43:05] Speaker 01:
And the officers... Well, it's, I mean, I think Judge Edward's point is it's a kind of operative, you know, harnessing the criminal justice system.

[00:43:12] Speaker 01:
It's surprising to me that this was prosecuted at all.

[00:43:16] Speaker 04:
If you look at the video, it's a clear assault.

[00:43:19] Speaker 03:
And the fact that the officer might have embellished doesn't mean that... Prosecutors think about all kinds of things, including if I have to put these guys on the stand and they're going to be shown to be liars, a jury in D.C.

[00:43:30] Speaker 03:
is not going to buy it in a second.

[00:43:32] Speaker 03:
No matter whether the simple assault, you and I and everyone would agree, the simple assault without the lies would be a winner.

[00:43:39] Speaker 03:
That's what prosecutors do.

[00:43:41] Speaker 04:
Well, our view is, and I think the district court got it right, the fact that there was probable cause on the undisputed video in light of Scott V. Harris means that there was no false arrest here and nothing in the events that were alleged.

[00:43:58] Speaker 04:
It looked at, in light of the video, shows anything that comes close to outrageous conduct that's completely unacceptable in an ordered society.

[00:44:08] Speaker 04:
So we believe the district court correctly concluded

[00:44:11] Speaker 04:
that further discovery wasn't necessary on those irrelevant issues that plaintiff wanted, and that dismissal of the action was appropriate.

[00:44:17] Speaker 01:
Thank you, Mr. Nevenhurst.

[00:44:18] Speaker 01:
Thank you.

[00:44:19] Speaker 01:
Mr. Latimer, we'll give you, I think your time was fully expired.

[00:44:22] Speaker 01:
We'll give you two minutes.

[00:44:25] Speaker 02:
I think that this is an outrageous day for law enforcement when people stand up and say lying by police officers is okay.

[00:44:38] Speaker 02:
This is what the government told Judge Kushenberry in the Superior Court.

[00:44:45] Speaker 02:
The government states that it has reviewed the facts in the instant case and believes that this court can find by upon proponents of the evidence that the defendant did not commit the offense for which he was arrested.

[00:44:57] Speaker 02:
Now, that's what they told the judge in the Superior Court.

[00:45:04] Speaker 02:
Now they're saying that this is all this should be ignored by this court.

[00:45:12] Speaker 02:
Tulin versus this real Columbia is a case that involved, uh, intentionally.

[00:45:19] Speaker 05:
The prosecutor, excuse

[00:45:28] Speaker 05:
you couldn't find that there was probable cause to arrest this individual?

[00:45:33] Speaker 02:
I just read what they said.

[00:45:34] Speaker 02:
This is when they submitted an order.

[00:45:37] Speaker 02:
This is when they submitted an order to the Superior Court telling the Superior Court that this man's record should be sealed.

[00:45:48] Speaker 02:
This was the government representing to the judge that he did not commit the crime.

[00:45:57] Speaker 02:
I understand.

[00:45:58] Speaker 02:
But here we're talking about a different story.

[00:46:04] Speaker 05:
The government does not contradict itself when it says on the one hand, we have probable cause to arrest this person and and then on the other hand says we don't have enough evidence to convict.

[00:46:15] Speaker 05:
That is not a contradiction.

[00:46:17] Speaker 02:
Well, if that's what they had said, maybe you're right.

[00:46:19] Speaker 02:
But what they said was he didn't commit the crime.

[00:46:21] Speaker 01:
But that's what the events say.

[00:46:22] Speaker 01:
We arrest, and we don't concede that the arrest was unlawful.

[00:46:28] Speaker 01:
But once we look into it further, we determine this must happen every day.

[00:46:32] Speaker 01:
And we hope it happens, that when we look more fully at the evidence, this is not a case in which these crimes occurred.

[00:46:38] Speaker 01:
Therefore, we're dropping it.

[00:46:39] Speaker 01:
But that doesn't vitiate necessarily the basis for probable cause.

[00:46:45] Speaker 01:
And I do think Tulin is different.

[00:46:48] Speaker 02:
When I say Tulin, I'm talking about the intentional infliction of emotional distress.

[00:46:52] Speaker 02:
Tulin was based upon an officer who was off duty who had been struck in the rear by another car telling another officer he should be arrested.

[00:47:02] Speaker 01:
And the officer in Toulon struck the other car and then blamed the other car, said the driver of the car that he rear-ended.

[00:47:09] Speaker 02:
No, no, no, no.

[00:47:09] Speaker 01:
Isn't it?

[00:47:10] Speaker 01:
No, no, no.

[00:47:10] Speaker 02:
The officer, Mr. Toulon ran into the back of the officer's car, and the officer

[00:47:18] Speaker 01:
uh indicated i'm sorry the officer you're right officer ran in the back of mr tuner's car and said that mr tuner was driving recklessly because he slowed down so there he's making the whole thing up out of hulk clark there's no probable cause there's no probable cause here it's a question of probable cause a versus probable cause a plus

[00:47:39] Speaker 02:
Well, what I'm saying is, in terms of the argument was outrageousness in terms of whether or not lying constitutes outrageous conduct.

[00:47:49] Speaker 02:
And in Trulon, lying constituted outrageous conduct.

[00:47:53] Speaker 02:
in Tulsa, lying constituted Tulsa in the District of Columbia, also where the officer lied about Mr. Tulsa not having ID on him.

[00:48:05] Speaker 02:
And Mr. Tulsa was forced to stay in jail, who he was a teacher and he was forced to stay in jail for an additional four hours.

[00:48:12] Speaker 02:
That was deemed to be outrageous conduct here.

[00:48:17] Speaker 02:
The repeated lies by the officers, I would submit to you, is outrageous conduct by any standard.

[00:48:23] Speaker 02:
Any police officer who knowingly lies in order to gain an advantage or gain an individual being incarcerated, I would submit constitutes outrageous conduct.

[00:48:34] Speaker 02:
My time, I appreciate the additional time.

[00:48:37] Speaker 02:
Unless there are other questions, I will sit down.

[00:48:41] Speaker 01:
Thank you, Mr. Letterman.

[00:48:42] Speaker 02:
Thank you.