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Case number 16-7056, Michelle Hall, Appellant versus District of Columbia at L. Mr. Latimer for the Appellant, Ms.

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Pittman for the Appellees.

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Good morning.

[00:00:13] Speaker 01:
Good morning, Your Honor.

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My name is Gregory Latimer, and I represent Ms.

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Michelle Hall from this matter.

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The two major issues before the Court regard the granting of the motion to dismiss based upon the pleadings,

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and the motion for summary judgment.

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I'll start with the motion on the pleadings.

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And I will submit to the court that the 10-count complaint that was submitted by the plaintiff in this case did not allow for any of the claims to be dismissed solely on the pleadings.

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I mean, the suggestion that plaintiff's complaint provided a basis for probable cause finds no support within the confines of the complaint.

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It is alleged quite clearly about a plaintiff that no probable cause existed for her arrest and the officer herself admitted that she did not believe that she had probable cause, that she was simply being detained.

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for purposes of conducting an investigation.

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The allegation that she had a broken wrist, the trial court at least determined that that provided a basis for the battery to continue, but in some

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way determined that the claim for excessive force in the 1983 did not because qualified immunity protected the officer and that finds no support in the law.

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The basis of the dismissal for negligence and infliction of emotional distress

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that is accompanied by a physical injury in the District of Columbia.

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There is nothing contained in the complaint that would justify dismissal of that particular count.

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The complaints clearly alleges assault.

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that she was in apprehension and fear.

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There's nothing within the confines of the complaint that provides a basis for the dismissal of the complaint.

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So I would submit to you that the ruling in that regard was entirely in error and totally unsupported by

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the law, which says that the complaint is supposed to be viewed from the standpoint of whether no claim identified can be supported at all.

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And clearly, if you read the complaint and accept the allegations of the complaint as true, which you must do at that particular point, then a reasonable juror could find that all of the 10 counts were adequately pledged.

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with respect.

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Did you say that Officer Lee admitted she didn't have probable cause to arrest and was just detaining her for investigation?

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Yes.

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And where is that in the record?

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Yes.

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Where is that in the record?

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I didn't see it in the complaint.

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But I might have missed it.

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Page 173, she talks about they were detaining her, and specifically I believe on, when I say 173, I'm referring to the joint appendix.

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And on 168, she was specifically asked,

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Okay, so she was being placed under arrest.

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No, she was not.

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She was being detained while we conducted our investigation.

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So she clearly indicated what she was doing.

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But the significant part of that was instead of conducting the investigation prior to

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doing the detention.

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They did the detention and then conducted the investigation, which puts this into a whole nother realm, because if you're going to go on an allegation of probable cause, I think the law is clear that a police officer has an obligation to at least conduct some type of investigation.

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If there is evidence that exists that would exonerate the individual, and in this case,

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By the officer's own words, they didn't even consider an investigation until after they had burst into a bathroom while she was relieving herself, handcuffed her, drug her out, threw her restaurant into the street, kneed her in the back, intentionally inflicted pain upon her, causing her to have a broken wrist.

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All of that was done before any investigation at all was done.

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Mr. Latimer, are you relying on DC code section 25-381A1C, which is that's the provision you know that says if there is a misdemeanor that the officer herself did not witness?

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that in order for an arrest to be made, there has to be something more than just a report of a misdemeanor.

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There has to be a concern that the individual might flee or is a threat to the officer or such.

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Are you relying on that?

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We're relying on that because that's the general law.

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But I don't even think you have to go that far.

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Because in this particular case, the trial court determined it was qualified immunity.

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And I'm not aware of any case, especially in this court where this court has ruled, that force without reason is unreasonable, period.

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And so when you have a situation where you are

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using force against an individual who is compliant.

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I follow that argument, and I think that's clearly made in the pleadings and the briefs.

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But I'm also thinking about not just the force,

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but the separate question of whether there is a false arrest claim.

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And we know from the Supreme Court's decision in Atwater v. Slago Vista that even a misdemeanor may support an arrest.

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And so to some extent, as your client pleads it and as the record taking the light most favorable to her shows,

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Arguably, not only the force is disproportionate, but the decision to arrest her seems at least arguably disproportionate.

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I'm trying to get at the basis for that claim given at Water v. Slogovistan, which, as you know, the individual who was stopped for not wearing a seatbelt was arrested and taken down to the station, and the Supreme Court said,

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Yeah, that's okay, because there was probable cause in the officer's presence.

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And so what I'm trying to get at here is, are you distinguishing it?

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Or are you saying it's because it's not in the officer's presence, and that's what makes the arrest unlawful under D.C.

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law, potentially federal law, or both?

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Well, I think that what we're saying is a twofold response to that question.

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First, it wasn't committed in the presence of the officer, and therefore the officer needed more than just the word of the individual.

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And that's why we don't believe the arrest was appropriate.

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But in this particular case, even assuming that it was an arrestable offense, the probable cause component is lacking.

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You have a situation, and that's why the facts were important.

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Because in this situation, you had an individual who came into the restaurant, was given a hand stamp for entry and reentry.

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So it was anticipated.

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Right.

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Let me just stop you there.

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Once, if the officer knew all the facts that were known to the restaurant, I can see your point, but presumably the restaurant called and told the police, I mean we don't have in the complaint those details, that the officer knew those details.

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All we know is that the officer was summoned for some walking out on a hefty check,

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And without pleading or evidence that Officer Lee was aware of what you point to as potentially mitigating circumstances, doesn't she have probable cause?

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And so my question is, what would prevent her, other than D.C.

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Code, limitations from an arrest under the Fourth Amendment?

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Well, I think that we cited several cases, albeit not from this circuit, from the 11th Circuit, that indicate that, and the 7th Circuit, that indicate that probable cause, an officer has an obligation to at least conduct a minimal investigation.

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As opposed to, in this particular case, they didn't even respond to the restaurant.

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They responded based upon the description of the individual that they saw in the restaurant across the street, and then they burst into a bathroom.

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They knew nothing other than there was a report of an individual who had not paid a bill and who had left.

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That's it.

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Can I hang on?

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What in the record shows what the investigation or non-investigation consisted of?

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I'm sorry?

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What is in the record about

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how much investigation or how little the police officer did in this case.

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We have the 911 call.

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But I don't know what's in the, the complaint doesn't say what investigation occurred.

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well or not and it was when she had that there was no investigation you have a little seventy three of the joint pending the officer herself says once we detained her we needed to make the scene safe for us so we weren't able to conduct the investigation until after the scene was saying that you have stages in the investigation so my credit apparently someone knew to tell them that she was in the bathroom at a different

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restaurant than the one that had placed the call.

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So they must have talked to somebody.

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Is a transcript of the 911 call?

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I haven't seen that.

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Was that ever obtained?

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How did they even know that she was in the bathroom at 19th Street?

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They must have done some investigating.

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My understanding, based upon deposing the officer, was that they saw her when they arrived on the scene going into the other restaurant.

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And so that's why they went to that restaurant, because she had on a yellow dress.

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She was the only person that fit that description.

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So they went to that particular restaurant.

[00:11:31] Speaker 05:
So back up, because the complaint doesn't tell me what the 911 call said.

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So now you're telling that the 911 call, is that also in the, do we know what was communicated during the 911 call?

[00:11:44] Speaker 01:
The 911, I mean the complaint does not contain that type of detail, no.

[00:11:48] Speaker 05:
But does your deposition of the officer or something in the record tell me?

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Because you're saying the yellow dress.

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So someone must have told the police that there's a person, maybe they named her or not, that has walked out on her bill.

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And now you're telling me they must have said something identifying like yellow dress because then they saw her and followed her into the other bar or restaurant across the street.

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But where is that coming from?

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I'm trying to figure out how we know.

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Were you saying that they followed her into the other restaurant?

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Well, that's what you said.

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I'm saying you're saying where is that in the record?

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Or that they knew they were following her.

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How did they know the person in this bathroom was the same person who had walked out of a different restaurant five or so minutes before?

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Because I'm just trying to figure out how much investigation, or not, the officer did before breaking into the bathroom.

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There has to have been something... On page 168 of the joint appendix, where I asked the question, I'm trying to, I understand that part, I'm trying to understand why was she put in the handcuff.

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answer.

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The lookout for the individual was quite specific.

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Black female wearing a sundress, yellow sundress, she was the only individual matching that description for an alleged crime of theft, one of services.

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So that must have come, I assume that had to come from some

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source of information.

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The police had to get that.

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I'm assuming that was from the 911 call.

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Maybe the 911 caller described what she looked like to the police.

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Is that the assumption?

[00:13:31] Speaker 01:
Well, when you say lookout, that's what it appears to be, Your Honor.

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OK.

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All right.

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So is there any case law on whether a 911 call that is not anonymous, so it comes from an identified individual that says, officer, I have just witnessed a person

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walking out on a bill, and I'm in the restaurant here, they ran up a bill, they've walked out without paying, here's the description.

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What is the case law on whether that is

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probable cause or reasonable suspicion at least to detain.

[00:14:09] Speaker 01:
I don't think there's any doubt that it's not probable cause.

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It would constitute a reasonable suspicion and you would have, I believe any police officer would have a right to approach the individual and detain that individual for further investigation and if that individual, I'm sorry.

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So if a witness came up to an officer on the street and said

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I just saw this woman steal something from the restaurant.

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The woman over there in the yellow sundress, I just saw her do it.

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Is that reasonable suspicion or probable cause?

[00:14:41] Speaker 01:
Reasonable suspicion.

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But again, if the individual attempted to free or resist, then the officer would have the right to use reasonable force to continue that detention.

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But in this case, you don't have any of that.

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In fact, the officer denied even going in the bathroom.

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The officer said it wasn't me, it was somebody else.

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And so it is not possible for that officer to have been provided with qualified immunity when the officer denied that she even was involved in the situation.

[00:15:25] Speaker 05:
And they have three witnesses.

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That's not, I mean, to be fair, that's not how qualified immunity works.

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We take the facts and the complaint and the lie, most favorable to your client, and we say, on these allegations or on the record, when you have more of a record, could a reasonable officer, or was it clearly established that no reasonable officer would have?

[00:15:43] Speaker 01:
um detained in this in this manner in this case right isn't that our inquiry for purposes of your constitutional claim maybe not your torts especially since there there there are three witnesses two two other witnesses rather who fully support what the what the plaintiff said were there were in a position to observe exactly what happened

[00:16:04] Speaker 01:
and who testified that when one of them, when he tried to intervene to ask a question about the amount of force being used, he himself was handcuffed and slammed on a car, and they observed the officer inflict intentionally pain against Ms.

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Hall.

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when she would cry out in pain and she would hold up the handcuffs to inflict more pain.

[00:16:34] Speaker 07:
Let me ask you about the allegations against Mr. DeRue.

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As I understand the record, as I've read it on Summary Judgment, I don't see evidence linking him to the call that went out from cities.

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It appears to have been a different individual who made that phone call.

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And so I'm wondering what

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evidence, if any, keeps him in the case at the summary judgment stage as distinct from the restaurant itself and perhaps some other employee of the restaurant.

[00:17:07] Speaker 01:
I think that the evidence was that Mr. Duro was in the restaurant.

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He is a manager of the restaurant.

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His position was that he wasn't working that night and therefore it wasn't his responsibility.

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However, the plaintiff indicated

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that she was, when she asked to speak to a manager, she was directed to Mr. Durow.

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She got into a dispute with Mr. Durow about it.

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And then one of the other employees of Mr. Durow, Ms.

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Urquhart,

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call the police.

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When she was brought outside of the restaurant, Mr. Duru was there nodding his approval, according to her, of what the police were doing.

[00:17:48] Speaker 07:
So for you, that's circumstantial evidence that it was Duru's directive or part was just the person carrying it out.

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I think there was some dispute in the record whether Duru was the manager.

[00:17:59] Speaker 01:
Well, the dispute in the record was, was he working that night?

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There's no dispute that he was a manager.

[00:18:06] Speaker 07:
And he was present.

[00:18:07] Speaker 01:
And he was present.

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He indicated that he was only there enjoying an evening with friends.

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But the plaintiff's testimony was that she was directed to him when she asked to speak with a manager.

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And if I just could jump on one other point, the suggestion by the trial court that there was no evidence of a broken wrist, when the record is clear,

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from her medical records that she was diagnosed with a fractured rib.

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She was treated as she had a fractured rib.

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She was in a sling for six weeks.

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And the only evidence to the contrary was from Dr. Brindle, who said that she was unable to see it on x-ray.

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Even though she testified that an occult or a small fracture is not something that you would necessarily see on x-ray, you would need an MRI.

[00:19:00] Speaker 05:
You also claimed in the complaint that she had nerve damage, correct?

[00:19:05] Speaker 01:
Nerve palsy.

[00:19:06] Speaker 01:
Nerve palsy?

[00:19:06] Speaker 01:
Yes.

[00:19:07] Speaker 05:
And was there any evidence from the other side disputing the nerve palsy?

[00:19:14] Speaker 01:
They said that there was no evidence of that, but there is evidence that she was given the E. But you had, did the doctor diagnose the nerve palsy as well?

[00:19:24] Speaker 05:
That's what the plaintiff indicated, yes.

[00:19:28] Speaker 05:
Even if one were to assume there wasn't a break, she was in a splint for six weeks?

[00:19:34] Speaker 05:
Yes, Your Honor.

[00:19:39] Speaker 05:
And you had evidence of the nerve palsy?

[00:19:41] Speaker 05:
Yes, Your Honor.

[00:19:42] Speaker 05:
And that was not countered by anything on the other side?

[00:19:46] Speaker 01:
No, Your Honor.

[00:19:47] Speaker 05:
So is there any reason to think that nerve palsy in a splint for six weeks, even if there wasn't a break, wouldn't be relevant evidence of excessive force?

[00:19:55] Speaker 01:
Well, I think that the entire record indicates that.

[00:19:58] Speaker 01:
But yes, and that's why I say I simply don't comprehend that there was no evidence of record to support Plankton's position.

[00:20:07] Speaker 05:
I had a question one more about a record thing if you can help me with.

[00:20:13] Speaker 05:
Am I right that the line between misdemeanor and felony for theft of services is $1,000?

[00:20:22] Speaker 01:
To be honest with you, I thought it was 300.

[00:20:24] Speaker 05:
Okay, well it's 300 or 1,000 either way.

[00:20:27] Speaker 05:
Is there evidence from the 911 call or your examination of the officer that the 911 call informed the officer of the amount of the bill that she had walked out on, so the officer would have known whether the misdemeanor limitations on arrest applied?

[00:20:46] Speaker 01:
There is no evidence of record as to... There's nothing indicated that the 911 call relayed the amount of the theft.

[00:20:56] Speaker 01:
There's no evidence of record from Officer Lee that she knew of the amount at issue.

[00:21:04] Speaker 01:
In fact, the evidence is that she first found out about the credit charge after the fact, and what she found out, according to her,

[00:21:14] Speaker 01:
was that the credit card had been declined, whereas we know that the credit card had, in fact, been charged before they called the police and had gone through.

[00:21:27] Speaker 01:
And so there was no outstanding bill at all when they called the police.

[00:21:32] Speaker 01:
It was simply

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misinformation.

[00:21:36] Speaker 05:
And then you have a conversion claim and there was something in the record about money having put in the book.

[00:21:45] Speaker 05:
Is that the little bill thing they give you that's spelled, is that what the book is?

[00:21:48] Speaker 01:
The testimony from this hall was that it was her birthday and so everybody was contributing and so when they brought the bill initially

[00:21:56] Speaker 01:
They put money into the folder to pay the bill, which they left on the table while she continued to try to resolve it.

[00:22:08] Speaker 01:
That money was taken in addition to the charge on her American Express bill that went through.

[00:22:16] Speaker 01:
And so the conversion related to the money that was taken

[00:22:21] Speaker 01:
in the that was placed on the table even though they had received payment from American Express.

[00:22:25] Speaker 05:
Is there any evidence about how much money was on the table and if not do you need to have an established amount of money taken?

[00:22:36] Speaker 05:
Do you have to identify how much money was taken to have a conversion claim?

[00:22:42] Speaker 01:
I don't believe that you have to have an exact amount but I think that the testimony from the plaintiff was it was several hundred dollars.

[00:22:50] Speaker 01:
to precisely answer your question, which was, do I know how much it was?

[00:22:55] Speaker 02:
The answer is no.

[00:23:10] Speaker 06:
Good morning.

[00:23:11] Speaker 06:
Good morning.

[00:23:12] Speaker 06:
May it please the court.

[00:23:13] Speaker 06:
I'm Lucy Pittman on behalf of the District of Columbia and Alice Lee.

[00:23:17] Speaker 06:
We're asking that the court affirm the district court's orders here, and I'm going to start with the motion to dismiss and specifically the probable cause determination, because I think that really was the focus in the challenge on the dismissal.

[00:23:32] Speaker 06:
As we know, an arrest is proper if there is probable cause.

[00:23:37] Speaker 06:
And I think the district court was right in that stating that the complaint contains sufficient information to warrant Officer Lee to believe that she had probable cause.

[00:23:46] Speaker 06:
And really quickly, I'm going to note there isn't anything in the record that Officer Lee stated she did not have probable cause.

[00:23:54] Speaker 02:
What are you relying on in the complaint?

[00:23:56] Speaker 06:
Sure.

[00:23:57] Speaker 06:
So there are a couple of things in the complaint.

[00:23:59] Speaker 06:
One is that there is a paragraph in the complaint in which the allegation is that Mr. Duru, a manager from CITES, called in and reported theft.

[00:24:12] Speaker 02:
What paragraph is that?

[00:24:14] Speaker 06:
Excuse me, I'll hold on one moment.

[00:24:18] Speaker 06:
Paragraph 36.

[00:24:22] Speaker 06:
that he called the police and falsely accused plaintiff, Ms.

[00:24:25] Speaker 06:
Hall, of theft.

[00:24:28] Speaker 06:
And then, in addition, we have that Ms.

[00:24:32] Speaker 06:
Hall was no longer on the premises of cities when Officer Lee arrived, so she was no longer there.

[00:24:38] Speaker 06:
So she did in fact run out on her bill she has left.

[00:24:41] Speaker 06:
And when Ms.

[00:24:43] Speaker 06:
Hall asked Officer Lee why she was being arrested, the response was theft for services.

[00:24:49] Speaker 06:
So Officer Lee at that point did know the

[00:24:52] Speaker 06:
the contents of the 911 call sufficient enough to know that Ms.

[00:24:57] Speaker 06:
Hall was being accused by the manager of cities of theft of services.

[00:25:02] Speaker 05:
So what evidence is there beyond this 911 call accusing someone of theft of services to establish probable cause?

[00:25:14] Speaker 05:
Is a 911 call by itself?

[00:25:17] Speaker 06:
I think a 911 call from a manager of the business is sufficient.

[00:25:21] Speaker 06:
Probable cause can be established with trustworthy information.

[00:25:24] Speaker 05:
Are you aware of any case, because I've looked at a lot of cases, and every 911 call, including two courts of appeals involving theft of services in particular, require more than just a 911 call.

[00:25:36] Speaker 06:
Right.

[00:25:37] Speaker 06:
And I don't know here to what extent we can start going into.

[00:25:40] Speaker 06:
We do have a more fully developed record.

[00:25:42] Speaker 06:
And so we do know that when Officer Lee arrived on the scene, she did talk to the bouncer.

[00:25:48] Speaker 06:
That's at the Joint Appendix 173.

[00:25:50] Speaker 06:
No, but this was dismissed on the face of the pleading.

[00:25:52] Speaker 06:
So we can't even look at it.

[00:25:54] Speaker 05:
I realize that.

[00:25:54] Speaker 06:
So on the face of the pleading, we have a bit.

[00:25:56] Speaker 05:
Unless you think under case law, we can look at stuff after the fact?

[00:26:00] Speaker 05:
Maybe we're on unqualified immunity.

[00:26:02] Speaker 05:
I don't know.

[00:26:03] Speaker 06:
I don't – you know, I don't know.

[00:26:04] Speaker 06:
I mean, we do have the more fully developed records, so we know that it's there.

[00:26:07] Speaker 06:
But to focus more on the actual complaint, we do have that – and I think we get to make some inferences in favor of the officer when we look at what is it that she knew at that moment.

[00:26:20] Speaker 06:
And I think that the questions that you are asking, Mr. Latimer, go to the heart of that, which is that she obviously knew something because she knew where to find her.

[00:26:26] Speaker 06:
She was no longer at Citi's.

[00:26:28] Speaker 06:
And so she had enough information from a trustworthy source to locate the individual fairly quickly at 19.

[00:26:37] Speaker 06:
What makes you say that's a trustworthy source?

[00:26:42] Speaker 06:
I haven't found any case law to indicate that when you get a call from a business that that can't be deemed a trustworthy source on an accusation of theft.

[00:26:49] Speaker 07:
Oh, it sure could be.

[00:26:50] Speaker 07:
But the question is, without more, is it?

[00:26:54] Speaker 07:
I mean, just as somebody, a family member could call, a neighbor could call, it seems that the Supreme Court has referred, and the common law refers, to arrests of misdemeanants who have committed the infraction in the presence of an officer.

[00:27:11] Speaker 07:
And I'd actually be interested in your view why the presence of the officer might matter, and whether, in fact, it's because of these issues of

[00:27:21] Speaker 07:
You know, reliability and people get overwrought about things sometimes.

[00:27:27] Speaker 07:
Sometimes they're absolutely trustworthy and accurate, and sometimes they don't really know what's illegal and what's not.

[00:27:33] Speaker 06:
Right.

[00:27:34] Speaker 06:
Well, I think an officer is allowed to rely on information that would be

[00:27:39] Speaker 06:
based upon her perspective at that moment, deemed trustworthy.

[00:27:43] Speaker 06:
I don't think that there's anything in the record to indicate that she shouldn't have trusted the business owner.

[00:27:48] Speaker 06:
And to your point, I will say that in the reply brief, Ms.

[00:27:53] Speaker 06:
Hall cites to this Moore case, Moore v. Marketplace, a Seventh Circuit case.

[00:27:59] Speaker 06:
I shepardized that, and I actually think

[00:28:02] Speaker 06:
I don't think Moore is as determinative as Ms.

[00:28:05] Speaker 06:
Hall would claim.

[00:28:06] Speaker 06:
And I also think that there's a case out of the Eighth Circuit, Royster v. Nichols.

[00:28:13] Speaker 06:
And I can give you the site.

[00:28:14] Speaker 06:
It's 698 F3rd, 681.

[00:28:17] Speaker 06:
Was that in your brief?

[00:28:19] Speaker 06:
It's not, because it was something I shepardized from his reply brief.

[00:28:22] Speaker 06:
The Moore came in the reply brief.

[00:28:24] Speaker 02:
698 at what?

[00:28:27] Speaker 06:
698 F3rd at 681.

[00:28:32] Speaker 06:
And I do apologize that I'm bringing it up now, but there we do a very similar factual situation.

[00:28:38] Speaker 06:
An individual went to a bar, opened a tab with a credit card, left the credit card, left the bar without closing the tab.

[00:28:45] Speaker 06:
The police were called and a report of

[00:28:48] Speaker 06:
that he didn't pay his tab.

[00:28:50] Speaker 06:
And indeed, actually there, the officers knew a little bit more.

[00:28:53] Speaker 06:
They knew that the restaurant had the credit card.

[00:28:55] Speaker 06:
They knew that the restaurant had swiped the credit card, and yet they still said that was sufficient for probable cause.

[00:29:01] Speaker 06:
And they distinguished more by pointing out that in Moore, there wasn't a specific ordinance that was in violation when the individuals there left the restaurant, whereas

[00:29:11] Speaker 06:
In the Eighth Circuit, they have theft of restaurant services, and in the District, we have theft of services.

[00:29:17] Speaker 06:
Ms.

[00:29:18] Speaker 07:
Penman, speaking of the code, I think I might have misspoke in terms of the number, but I'd be interested in your view on whether this arrest was consistent with D.C.

[00:29:29] Speaker 07:
Code.

[00:29:30] Speaker 07:
I think it's Section 28-581, which, as I understand it, codifies my

[00:29:40] Speaker 07:
preliminary understanding of the common law view, which is that when a misdemeanor has been committed outside of the presence of an officer, the officer may only arrest when the officer has discerned that either there's a risk of destruction of evidence, there's a risk of flight, or the individual may pose a risk of harm to someone.

[00:30:03] Speaker 07:
And how were any of those elements met?

[00:30:06] Speaker 07:
Because surely that's an obstacle for

[00:30:10] Speaker 07:
at least for the DC law false arrest and false imprisonment claims.

[00:30:16] Speaker 06:
Sure, and this wasn't briefed below, so I apologize that I am probably not as prepared as I would normally be to address this, but I will say that also on Joint Appendix 173, Officer Lee does describe that Ms.

[00:30:30] Speaker 06:
Hall was viewed as being a flight risk because she was no longer on the scene having left the restaurant and leaving this bill.

[00:30:38] Speaker 07:
Now, how do you make sense of that, though, given that

[00:30:42] Speaker 07:
Allegations show Ms.

[00:30:45] Speaker 07:
Hall to have been in a single stall confined restaurant and Officer Lee and another officer are outside of the restaurant.

[00:30:53] Speaker 07:
The risk of flight is what?

[00:30:54] Speaker 06:
Well, I don't know that she's specifically saying that the risk of flight is specific to her just being in the restroom.

[00:31:00] Speaker 06:
I read her stating this, that she was seen leaving the establishment, and based upon that, she was considered a possible flight risk.

[00:31:07] Speaker 06:
I'm asking you, how do you defend that standing here?

[00:31:10] Speaker 07:
Is there anything about the situation that you think a reasonable officer does pose a risk of flight?

[00:31:16] Speaker 06:
I think the factual situation that the officer was faced with where she knocks on the door of the restroom and she gets a response, some sort of response that it's occupied.

[00:31:25] Speaker 05:
The most routine response.

[00:31:28] Speaker 05:
That's right.

[00:31:28] Speaker 05:
Absolutely right.

[00:31:29] Speaker 05:
That's absolutely right.

[00:31:30] Speaker 06:
The thing all of us would have said.

[00:31:31] Speaker 06:
And no one thinks she's flushing evidence down, right?

[00:31:34] Speaker 06:
She knocks again and announces that it's the police, and that's when she gets silenced.

[00:31:38] Speaker 06:
There isn't another response.

[00:31:40] Speaker 06:
So I don't know what is running through Officer Lee's mind at that time, but she does know that there's an individual who's now ignoring her.

[00:31:48] Speaker 06:
She doesn't know.

[00:31:48] Speaker 02:
The question was flight risk.

[00:31:51] Speaker 06:
That's right.

[00:31:51] Speaker 06:
And I don't know if Officer Lee suspected that there was a flight risk there.

[00:31:57] Speaker 06:
Does she know that there is another exit?

[00:31:59] Speaker 06:
Does she know that the individual isn't armed?

[00:32:02] Speaker 06:
You know, those are things that I don't think we know.

[00:32:06] Speaker 02:
Judge Pillard's question.

[00:32:08] Speaker 02:
What more?

[00:32:10] Speaker 02:
as to evidence would support probable cause for a misdemeanor not committed in the offence.

[00:32:21] Speaker 02:
So you admitted basically no flight risk, no evidence being flushed.

[00:32:26] Speaker 06:
Right, we have that the officer was concerned about it being a flight risk.

[00:32:30] Speaker 06:
We can question whether that was a fair assessment on her part.

[00:32:34] Speaker 06:
And we have that she's no longer on the premises of cities, thus

[00:32:39] Speaker 05:
Well, there's a mens rea element to the statute, so there has to be some evidence of that, because I think it may be common knowledge that people go in and out of bars at night, because they have a stamp mechanism.

[00:32:53] Speaker 05:
So are you telling me that it's probable cause any time someone leaves a bar at night to arrest them?

[00:33:03] Speaker 05:
And because they left the bar, we can treat them as a flight risk?

[00:33:07] Speaker 06:
I think that the elements of theft of service where it does indicate that leaving the premises is one of the elements without paying the bill, I think that that is sufficient for probable cause purposes.

[00:33:20] Speaker 05:
Everybody who walks out of it, they get the stamp on their hands, they walk out, they're a fighter.

[00:33:26] Speaker 05:
When my kids were little, they wanted a birthday party at Chuck E. Cheese.

[00:33:31] Speaker 05:
We walk in, we get stamps on our hand, and we start having the birthday party, and I'm in and out,

[00:33:38] Speaker 05:
to the car, getting stuff for the party.

[00:33:40] Speaker 05:
I haven't paid.

[00:33:41] Speaker 05:
You're telling me that when I walked out of Chuck E. Cheese, I could have been not just stopped and questioned, but arrested, detained for 48 hours, strip searched, all the things that come with an arrest?

[00:33:53] Speaker 06:
No, and I think that the factual situation is important here, which is that I don't believe you would have disputed the bill at Chuck E. Cheese and then left the bill there and left.

[00:34:04] Speaker 05:
And so we need to be mindful of the fact that... Wait, where is there evidence on the pleadings that they were told it was a disputed bill?

[00:34:11] Speaker 06:
And I apologize, I was going into the record, because the stamp also isn't common practice.

[00:34:19] Speaker 05:
I'm not talking about that they knew that it's common practice.

[00:34:22] Speaker 06:
Because I don't think it is common practice to go to nightclubs and rack up $1,000 bills and not pay.

[00:34:28] Speaker 06:
The stamp is there so that she doesn't have to pay cover charge again.

[00:34:30] Speaker 06:
It's not a license for her to come and go and ignore her bill.

[00:34:35] Speaker 07:
If you're going into the record, she has

[00:34:40] Speaker 07:
her license and her credit card are with the management.

[00:34:44] Speaker 07:
Her purse is still in the restaurant.

[00:34:46] Speaker 07:
Her friends are still in the restaurant.

[00:34:48] Speaker 07:
Her several birthday gifts are still in the restaurant.

[00:34:51] Speaker 07:
The table is still occupied.

[00:34:52] Speaker 07:
So once one gets past the pleadings, the concern about not only whether there's any flight risk, but whether there is, in fact, any ground for cause to think there's been a violation is a little bit hard to square.

[00:35:08] Speaker 06:
Right, except that here she doesn't explain that she's coming back in.

[00:35:11] Speaker 06:
The difference between the Chuck E. Cheese and here is that I have no doubt everyone knew that when you were coming in and out she would come in.

[00:35:18] Speaker 02:
She's going to leave her license and credit card there.

[00:35:20] Speaker 02:
I apologize.

[00:35:20] Speaker 02:
She's going to leave her license and credit card there and all her birthday gifts.

[00:35:24] Speaker 02:
And her friend.

[00:35:25] Speaker 02:
And her friend.

[00:35:25] Speaker 06:
Who's in touch with her by text.

[00:35:27] Speaker 06:
Right, but the police are not aware that she's left those things.

[00:35:31] Speaker 07:
Because they haven't asked.

[00:35:34] Speaker 07:
And one would think that under at least DC law, it's explicit that there's an obligation to refrain from arrest.

[00:35:42] Speaker 07:
And as I understand it, and I think it's an open question, too, in the Supreme Court, given Atwater versus Lago Vista, that an arrest is a deprivation of liberty more severe than a mere stop in question, right?

[00:35:57] Speaker ?:
Mm-hmm.

[00:35:57] Speaker 07:
Once you get down to the lowest level of violations, like a misdemeanor, and you get into a terrain where the only basis for thinking a misdemeanor has occurred is a third party's report, there is arguably reasonableness requires

[00:36:15] Speaker 07:
a little bit of a threshold investigation.

[00:36:18] Speaker 07:
Ma'am, when you're going out to get the juice boxes or the extra wipes in the car, you are coming back, aren't you, before you call the police or before the police actually slam you on the ground in response to that.

[00:36:32] Speaker 07:
I see that as an open issue under the Fourth Amendment, and I wonder if you have a different view, what your position would be as a representative of the District of Columbia on what the Fourth Amendment does or doesn't require there.

[00:36:44] Speaker 06:
I think in this case that we had that the officer Lee did have sufficient facts to warrant arresting Ms.

[00:36:53] Speaker 06:
Hall given what she knew at that time.

[00:36:55] Speaker 06:
We do have to look at it from her perspective.

[00:36:58] Speaker 06:
And what she knew at that time was that she had this report of

[00:37:03] Speaker 06:
of theft.

[00:37:04] Speaker 06:
The individual had left the premises.

[00:37:06] Speaker 06:
Also on Joint Appendix 173, she does describe that when she arrived, she did talk to an employee of the restaurant.

[00:37:13] Speaker 07:
I don't think she says that.

[00:37:14] Speaker 07:
I think she said she talked to the bouncer.

[00:37:16] Speaker 07:
The bouncer is who called.

[00:37:17] Speaker 06:
She said she talked to the bouncer at the establishment who placed the call.

[00:37:20] Speaker 06:
Who placed the call.

[00:37:21] Speaker 07:
Later.

[00:37:22] Speaker 07:
So Ms.

[00:37:22] Speaker 07:
Hall was stopped

[00:37:24] Speaker 07:
provided through our 9-1-1 call and also through the bouncer who placed the call.

[00:37:30] Speaker 07:
I think it's unclear, and if you're reading that in the most favorable to the plaintiff, it's the information transmitted in the call.

[00:37:37] Speaker 06:
In addition to, I guess I read that as who worked at the establishment who placed the call, the bouncer who worked at cities.

[00:37:44] Speaker 07:
Yeah, who placed the call.

[00:37:45] Speaker 07:
I think it's ambiguous as to whether they're just talking about the information transmitted in the call.

[00:37:52] Speaker 07:
or whether there's any, I don't think that you have to read that, that she went over and actually also talked to the bouncer.

[00:37:58] Speaker 07:
That wasn't how I read it anyway.

[00:38:00] Speaker 07:
But I see your point, but I'm just saying, now that you said how you read it, I'm saying, well, okay, at least there's an ambiguity, but we're in summary judgment.

[00:38:09] Speaker 05:
I'd like to dismissal.

[00:38:10] Speaker 07:
Right, not defending a jury verdict.

[00:38:12] Speaker 05:
Right.

[00:38:12] Speaker 05:
Dismissal on the pleadings on this claim.

[00:38:13] Speaker 06:
Right, so the dismissal, right, and so then we're left with what's in the complaint itself.

[00:38:19] Speaker 05:
In your Reister case, they didn't arrest him until he refused to sign the receipt, so they did more investigation there.

[00:38:25] Speaker 05:
They did.

[00:38:25] Speaker 05:
Of course, here they took her the receipt and she signed it, but they'd already arrested her.

[00:38:30] Speaker 05:
Right, right.

[00:38:31] Speaker 05:
So I don't think that case helps here.

[00:38:32] Speaker 05:
I think that adds to the list of 911 cases where someone had to do something more before they could arrest.

[00:38:39] Speaker 06:
Right, but the fact that the credit card had already been swiped and was going to be paid regardless in that case.

[00:38:45] Speaker 06:
And here, you know, the restaurant does have a similar situation.

[00:38:49] Speaker 05:
A lot of respect to my question about if you've got, so now you've given us a third court of appeals case.

[00:38:56] Speaker 05:
that is required more than just the 911 call.

[00:39:00] Speaker 05:
For theft of services in particular, not general worth amendment, for theft of services in particular, do you have any case, court of appeals, state court, trial court, that has said just the 911 call for theft of services, not a violent felony or anything, is sufficient to arrest?

[00:39:24] Speaker 06:
I do not.

[00:39:26] Speaker 06:
I would proffer that there's more than just the 911 call here.

[00:39:29] Speaker 06:
On the pleadings?

[00:39:31] Speaker 06:
That's right, on the pleadings.

[00:39:32] Speaker 05:
And just to be clear, I want to make sure I understand your position.

[00:39:35] Speaker 05:
The more is that when they knocked on the door of the bathroom and she said, someone's in here, and then she said police, and then the officer barged in.

[00:39:47] Speaker 06:
Does the complaint say how much time elapsed?

[00:39:48] Speaker 06:
That's right.

[00:39:50] Speaker 06:
It doesn't indicate other than that she was able to put her clothing back on.

[00:39:54] Speaker 06:
But I think that in addition to the fact that they were able to locate her, and so there's a... Does a description of somebody add to problems?

[00:40:04] Speaker 05:
I suppose that the description was it's a robbery and the person has a face mask on and a bag of burglar tools that might help, but I'm not sure if someone who's just, if all they said is yellow dress, that that's anything to suggest that she's committed a crime.

[00:40:22] Speaker 06:
No, I guess what I was referring to there, I think it hearkens back to the question you asked, Mr. Latimer, about the fact that she clearly did something because she was able to locate her so quickly.

[00:40:31] Speaker 06:
And that's why I'm going beyond the meetings, but yeah.

[00:40:36] Speaker 05:
And so we're assuming that there was some description of the person.

[00:40:39] Speaker 06:
That's right, so that she was able to locate her fairly quickly, located at cities.

[00:40:44] Speaker 07:
Can you fill in on, we have a little bit of, I thought it was under $1,000 is misdemeanor.

[00:40:52] Speaker 07:
Mr. Latimer mentioned maybe $300.

[00:40:54] Speaker 07:
What's the misdemeanor threshold?

[00:40:56] Speaker 06:
I don't actually know which of those two numbers is correct.

[00:40:59] Speaker 06:
I know that here it was 1,100 and some change that we were talking about.

[00:41:03] Speaker 07:
I think the complaint was that it was 900 something.

[00:41:06] Speaker 06:
The bill was $1,100.

[00:41:08] Speaker 07:
I think that's as alleged.

[00:41:09] Speaker 07:
I'm just saying as alleged.

[00:41:10] Speaker 06:
Yes, that's right.

[00:41:11] Speaker 06:
That's right.

[00:41:12] Speaker 06:
Because there was that whole question about the tip.

[00:41:14] Speaker 06:
That's right.

[00:41:18] Speaker 02:
Anything further?

[00:41:19] Speaker 06:
I'd like to move on to the excessive force, if I can take just a few minutes.

[00:41:27] Speaker 06:
So we know there's a qualified privilege for using reasonable force in the course of an arrest.

[00:41:33] Speaker 06:
And here, I think that while Ms.

[00:41:35] Speaker 06:
Hall has made a number of statements that she wasn't intending to resist arrest, I think that the district court got it right in pointing out that there were a number of instances in which she was actually acting contrary to the officer.

[00:41:48] Speaker 05:
Well, weren't those instances after most of the roughness had happened, the trying to stand up and the turning around

[00:41:58] Speaker 05:
which is just turning around to ask officer a question, all happened after the barging into the bathroom, throwing her against the wall, handcuffs too high, pushing her too tight, arms up in the air.

[00:42:09] Speaker 05:
That was all before trying to stand up or turning to face the officer.

[00:42:13] Speaker 05:
So what was there, even assuming there were probable cause here to arrest, what was there to show that that level of force was needed?

[00:42:23] Speaker 06:
Sure, the resistance actually started in the bathroom.

[00:42:26] Speaker 06:
The officers asked her to put her handcuffs behind her back and then they had to forcibly put them behind her back.

[00:42:32] Speaker 07:
I don't think that's, so again this is because they're the two opinions I recognize that it's confusing and we've actually

[00:42:39] Speaker 07:
in discussing the claims that were dismissed on motion.

[00:42:42] Speaker 07:
We've also gone into the record.

[00:42:43] Speaker 07:
But if we confine ourselves to the complain, because the excessive force wasn't dismissed on the... No, that was summary judgment, Your Honor.

[00:42:52] Speaker 07:
The excessive force was the summary judgment.

[00:42:54] Speaker 05:
Are we talking about Fourth Amendment or are we talking about battery?

[00:42:57] Speaker 06:
The battery.

[00:42:58] Speaker 06:
I'm talking about the Fourth Amendment, Section 93, excessive force.

[00:43:02] Speaker 06:
I don't believe that there is much actually in the record in terms of the court actually dismissing that or that it was even challenged necessarily.

[00:43:10] Speaker 07:
The district court sort of seems to have skipped over it, but I think we sort of have two buckets here.

[00:43:15] Speaker 07:
We have the

[00:43:18] Speaker 07:
calling out and relying on the making the 9-1-1 call, whether there's a basis for any of that.

[00:43:25] Speaker 07:
And then we have this force.

[00:43:26] Speaker 07:
And I know that there are several theories on each.

[00:43:31] Speaker 07:
So I guess what you're pointing out is that we have both a pleading stage dismissal on the force reasonableness and a summary judgment stage dismissal.

[00:43:41] Speaker 07:
And on the pleading stage dismissal of the Section 8-3 claim, I guess the question is,

[00:43:48] Speaker 07:
Do you think the pleading suffice to show excessive force and that the justification comes in only when the record is flushed out?

[00:43:58] Speaker 06:
I'm not sure I read Judge Lamberth's order as dismissing an excessive force claim at the dismissal level.

[00:44:06] Speaker 06:
I viewed that he had moved that to the summary judgment stage.

[00:44:09] Speaker 06:
I also don't know that I read Ms.

[00:44:12] Speaker 06:
Hall's opening brief as challenging that as being an error, that he addressed the excessive force claim.

[00:44:17] Speaker 07:
So I am... Okay, so we can just treat the excessive force as having been sustained on the pleadings and dealt with on summary judgment.

[00:44:24] Speaker 06:
That was my reading of it, yes, Your Honor.

[00:44:26] Speaker 06:
And there, I think that we do have, to go back to answering your question, the level of, or the resistance kind of beginning in the bathroom.

[00:44:35] Speaker 06:
Ms.

[00:44:35] Speaker 06:
Hall's testimony was that from the very beginning, she kept trying to turn around even in the bathroom.

[00:44:40] Speaker 06:
in a direction opposite of what Officer Lee was expecting.

[00:44:46] Speaker 06:
And so by the time they get out of the loud restaurant and outside.

[00:44:50] Speaker 05:
Do you make any argument that the failure to open the door was resisting arrest to the bathroom?

[00:44:56] Speaker 05:
Or do you start once they're inside the bathroom?

[00:44:59] Speaker 06:
I think it certainly adds to what Officer Lee's thinking.

[00:45:02] Speaker 06:
So it's part of it.

[00:45:02] Speaker 06:
So I do think it is.

[00:45:03] Speaker 05:
How can you resist arrest without anyone having told you you're under arrest?

[00:45:08] Speaker 06:
I don't know that that would say that was necessarily affirmatively resisting arrest.

[00:45:13] Speaker 06:
I think that what I'm saying is when you look at it.

[00:45:15] Speaker 05:
Well, it's either a factor in resisting arrest or not.

[00:45:17] Speaker 05:
I would think you would have to have someone tell you you're under arrest before you can resist arrest.

[00:45:23] Speaker 05:
Is that not required?

[00:45:24] Speaker 06:
I think it's a factor to her not cooperating.

[00:45:27] Speaker 06:
I don't know that any one of these things individually by itself you could then say is resisting arrest.

[00:45:32] Speaker 06:
I think we have to look at the totality of it.

[00:45:33] Speaker 05:
When did the officers tell her you're under arrest?

[00:45:36] Speaker 06:
When she's walking out, she asks why, and they said, for theft of services.

[00:45:40] Speaker 05:
Well, no, that was why you got me in handcuffs.

[00:45:44] Speaker 05:
But at least according, again, looking at the summary judgment record, even the officer says it was a detention, not an arrest.

[00:45:57] Speaker 05:
How much force can be used for a reasonable suspicion of detention rather than an arrest?

[00:46:04] Speaker 05:
I know we can do a pat down, but.

[00:46:06] Speaker 06:
Right, right.

[00:46:07] Speaker 06:
And I think in this context, I know that there's been discussion of whether it was a detention or an arrest.

[00:46:12] Speaker 06:
I think Ms.

[00:46:15] Speaker 06:
Hall's allegations of it being an arrest, she was in handcuffs and wasn't free to go to the squad car.

[00:46:20] Speaker 05:
Is there any place on the record where Lee said you're under arrest so that she knew she was resisting arrest?

[00:46:24] Speaker 06:
I don't see that anyone has developed the record in that regard in terms of what was said there.

[00:46:29] Speaker 06:
I don't see either a denial or an affirmative response.

[00:46:33] Speaker 05:
And are there cases that you're familiar with just in your experience that if they feel like they're detaining someone for investigation based on reasonable suspicion, they can obviously stop the person from moving.

[00:46:47] Speaker 05:
They may be able to pat them down.

[00:46:48] Speaker 05:
But how much force can be used when someone's not trying to flee?

[00:46:56] Speaker 06:
I mean, most of those cases that I'm familiar with are in the arrest context rather than the detention context, because if you are forcibly trying to stop someone from moving about, that takes you to the arrest context.

[00:47:09] Speaker 06:
And that's why I believe here Officer Lee's label, I think, isn't what's key or determinative.

[00:47:18] Speaker 06:
But going back to just real quickly, so we've got this level of resistance or not cooperation where she does continue to swing around on the officer, try to face the officer and move about.

[00:47:29] Speaker 06:
I would say that the level of force here that was used is clearly tied to that level of resistance.

[00:47:34] Speaker 06:
This isn't for a non-legitimate purpose.

[00:47:37] Speaker 06:
Everything of trying to keep her down to the ground and those things are all counteractive to the level of resistance that Ms.

[00:47:44] Speaker 06:
Hall has explicitly stated.

[00:47:47] Speaker 07:
She did.

[00:47:48] Speaker 07:
As a matter of summary judgment, really?

[00:47:50] Speaker 07:
I mean, as a lawyer, you say that.

[00:47:52] Speaker 07:
I mean, if she had, so she's being held in a kind of in-between, she's being made to kneel down, but her arms are being pulled up, she's really in pain, her knees are bare and being graced on the ground, I guess one thing maybe she could have done instead of try to stand up is just gone completely limp and lay down so that she would no longer be in that in-between sort of suspended,

[00:48:16] Speaker 07:
very uncomfortable position, I could see you arguing then on your same theory that lying on the ground was resisting arrest and that the officer was warranted and yanking her up by her handcuffed hands.

[00:48:30] Speaker 07:
So I just think at the summary judgment stage, I find it a little hard to think that that isn't exactly the question for the jury on this record.

[00:48:39] Speaker 07:
And they might find that Officer Reed was in fact warranted and or that the circumstances were such that under the law would support quality.

[00:48:49] Speaker 07:
I mean, it's a little hard in the summary judgment stage, no?

[00:48:53] Speaker 06:
Well, what I find somewhat interesting about this is that, so, Ms.

[00:48:57] Speaker 06:
Hall is admitting that she's trying to move in a manner that's contrary to what Officer Lee is expecting.

[00:49:02] Speaker 06:
And Officer Lee doesn't know why she's trying to move in that direction.

[00:49:05] Speaker 06:
She says she's trying to stand up.

[00:49:07] Speaker 06:
At one point, Ms.

[00:49:08] Speaker 06:
Hall affirmatively states, I'm trying to stand up.

[00:49:11] Speaker 06:
and Officer Lee stood her up.

[00:49:13] Speaker 06:
The problem there is that she then immediately swung around on her.

[00:49:16] Speaker 06:
And so Officer Lee places her back on the ground.

[00:49:20] Speaker 06:
I think from Officer Lee's perspective, and we do have a little window into her perspective because Ms.

[00:49:25] Speaker 06:
Hall's testimony was that she continually kept saying to her, stop resisting when she was moving in these contrary manner.

[00:49:33] Speaker 06:
Um, and I think that that that is sufficient here, where you have Miss Hall's own testimony explaining what she's doing that the officer is referring to as resistance.

[00:49:45] Speaker 05:
All right.

[00:49:47] Speaker 05:
I'm sorry, just one more question, though.

[00:49:48] Speaker 05:
And in your experience, the one thing I just kept asking myself in this case, is this how DC routinely handles small

[00:50:00] Speaker 05:
disputed thefts of money.

[00:50:01] Speaker 05:
This is not a violent offense.

[00:50:04] Speaker 05:
It's not, whether it's just above or just below the misdemeanor line.

[00:50:09] Speaker 05:
There was no reason to think there was any destruction of evidence, any threat to the public.

[00:50:14] Speaker 05:
They normally go breaking down doors into single-stall bathrooms and throwing people against the wall and hauling them outside for public humiliation and pushing them down on the ground.

[00:50:26] Speaker 05:
Is that normal?

[00:50:30] Speaker 06:
I think all of us could probably conclude that it wasn't done the way we would want it done, or the way that is expected.

[00:50:37] Speaker 06:
But I don't know that we would conclude, or at least I wouldn't conclude, that it was unlawful.

[00:50:42] Speaker 05:
I'm not asking you to conclude anything on, obviously, your liability standards.

[00:50:45] Speaker 05:
I'm just hoping that this is not DC law enforcement policy.

[00:50:50] Speaker 06:
No, there are certainly, I think, a number of steps that, in hindsight, we could say could have been done differently.

[00:50:55] Speaker 02:
All right.

[00:50:56] Speaker 02:
Why don't we hear from Ellen?

[00:50:58] Speaker 02:
Thank you.

[00:51:04] Speaker 01:
Just briefly, I think the last question was very insightful, because the problem here is that a jury should have been able to make a determination as to whether these things were appropriate or not, and not the court saying that this shouldn't go forward.

[00:51:31] Speaker 01:
And the court did address

[00:51:33] Speaker 01:
the plaintiff's 1983 action on J.A.

[00:51:37] Speaker 01:
55 and 56.

[00:51:38] Speaker 01:
I mean the court specifically, 1983 is alleged in count one, this court specifically addressed count one and said that he was granting the motion because of qualified immunity.

[00:51:52] Speaker 05:
Well 1983 is a pretty vague label.

[00:51:56] Speaker 05:
I think what we're just trying to figure out is whether

[00:51:59] Speaker 05:
Your complaint, your arguments in district court specifically carved out, in addition to the no probable cause to arrest, did you also have a Fourth Amendment excessive force claim?

[00:52:10] Speaker 05:
Was the district court on notice that when you said 1983 claim that it had both aspects of it as opposed to separate battery?

[00:52:19] Speaker 01:
Well, I think that if you read the complaint itself,

[00:52:23] Speaker 01:
and it talks about the physical injuries that were caused by the violations of the Constitution, that that puts the court on notice that it involves an allegation of excessive force.

[00:52:40] Speaker 01:
And again, even if you're going to do this, then the appropriate thing as opposed to dismissal

[00:52:47] Speaker 01:
or with presidents would have been to dismiss it without presidents and have the plaintiff amend the complaint.

[00:52:53] Speaker 01:
But to dismiss it, if you don't understand that that's what it's about, to dismiss it as you did and not give the plaintiff an opportunity to clarify

[00:53:02] Speaker 01:
and do it on the basis of qualified immunity, I think, is not supported in the law.

[00:53:09] Speaker 01:
I see that I'm out of time, so if there are no other questions.

[00:53:10] Speaker 05:
Can I ask you one procedural question?

[00:53:12] Speaker 05:
Because there's been some talk here.

[00:53:13] Speaker 05:
It gets a little odd, because we have some claims dismissed on the pleadings and others on summary judgment.

[00:53:20] Speaker 05:
And the summary judgment battery evidence kind of may have some relevance to the constitutional claims.

[00:53:31] Speaker 05:
Since there is a record,

[00:53:34] Speaker 05:
Would you think it fair to treat this as a summary judgment dismissal, or did you not develop the record on your constitutional claims in a way you would have liked to because they were dismissed?

[00:53:45] Speaker 05:
Do you think the record on the battery is sufficient for analyzing the constitutional claims and that we could look at that evidence, or do you prefer that we address that only as dismissal stage?

[00:53:57] Speaker 01:
Well, the answer to your question is yes and yes.

[00:54:01] Speaker 01:
I wasn't, we weren't given an opportunity to develop the 1983 claim because it was dismissed.

[00:54:06] Speaker 01:
However, when you look at the battery claim, I believe that the evidence surrounding the battery claim fully supports a 1983 claim for excessive force as well as the assault and battery claim as well.

[00:54:19] Speaker 01:
So I don't know if I can answer it better, but from both what you're saying, yes, we didn't get a chance to develop it, and that was unfortunate.

[00:54:28] Speaker 01:
And that's one of the things that we're complaining about now.

[00:54:32] Speaker 07:
You're not making a section 1983 false arrest claim, are you?

[00:54:39] Speaker 01:
The 1983 false arrest claim was made, yes.

[00:54:44] Speaker 07:
You are, and you're making a section 1983 excessive force claim?

[00:54:46] Speaker 01:
Yes.

[00:54:47] Speaker 07:
And you're making a common law, battery claim, false arrest, false imprisonment under D.C.

[00:54:53] Speaker 07:
law?

[00:54:53] Speaker 01:
Salt and battery, negative infliction of emotional distress, intentional infliction of emotional distress.

[00:54:59] Speaker 05:
Did you address the infliction of emotional distress claims at all in your appellate brief?

[00:55:04] Speaker 01:
Yes.

[00:55:05] Speaker 05:
Where in your appellate brief?

[00:55:06] Speaker 05:
I didn't see those claims.

[00:55:07] Speaker 05:
I saw the other ones.

[00:55:08] Speaker 05:
I didn't see those.

[00:55:16] Speaker 02:
That doesn't count.

[00:55:17] Speaker 02:
We can check it, please.

[00:55:18] Speaker 05:
All right.

[00:55:19] Speaker 01:
Page 17.

[00:55:19] Speaker 01:
OK.

[00:55:21] Speaker 05:
I'll look at that.

[00:55:21] Speaker 05:
Thank you.

[00:55:22] Speaker 01:
Negative fix of emotional distress.

[00:55:23] Speaker 02:
All right.

[00:55:24] Speaker 05:
Oh, OK.

[00:55:24] Speaker 05:
But against?

[00:55:25] Speaker 05:
That was against cities in Duro.

[00:55:28] Speaker 05:
OK.

[00:55:28] Speaker 05:
Not against DC or Lee.

[00:55:30] Speaker 05:
OK.

[00:55:30] Speaker 02:
All right.

[00:55:31] Speaker 02:
Thank you.

[00:55:32] Speaker 02:
Thank you, Your Honor.

[00:55:33] Speaker 02:
We'll take the case under advisement.