[00:00:01] Speaker 01:
Case number 20-71-11, Jingru Lin, appellant, versus District of Columbia, et al.

[00:00:07] Speaker 01:
Ms.

[00:00:07] Speaker 01:
Dennis for the appellant, Ms.

[00:00:09] Speaker 01:
Trayer for the appellees.

[00:00:13] Speaker 04:
Good morning, and may it please the court.

[00:00:16] Speaker 04:
My name is Kelsey Dennis, and I am here on behalf of appellant, Ms.

[00:00:19] Speaker 04:
Lin.

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I would like to reserve three minutes for rebuttal, please.

[00:00:23] Speaker 04:
Thank you.

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And the district court initially granted summary judgment in part and denied in part and made two key rulings of law.

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First, that the police had probable cause to arrest Miss Lynn for simple assault.

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And second, that there was a genuine dispute of material fact as to whether probable cause existed for the arrest for assault on a police officer or APO.

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However, upon reconsideration, the district court completely abrogated its second ruling.

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Citing to Harris, the court held that it didn't matter whether there were disputes regarding the APO.

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Rather, because the court found that there was probable cause for the simple assault, Ms.

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Lin could no longer proceed on her claims of false arrest for the APO.

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That judgment upon reconsideration was an error of law for two reasons.

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First, probable cause for the simple assault had in fact dissipated in the period between the two arrests.

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And as a result, the probable cause from the first arrest could not be imputed onto the second.

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There was plenty of evidence in the record the probable cause had in fact dissipated, but the court did not weigh this evidence in the light most favorable to the non-moving party.

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Plaintiff only needs to establish there is a genuine dispute of material fact as to whether probable cause existed for any charge at the time of the second arrest for APO.

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Second, because probable cause dissipated between the two handcuffings, Paris was not dispositive and was a mistake to consider it controlling for purposes of Rule 54B.

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The district court improperly used a non-dispositive decision to dispose of plaintiff's three remaining claims in its order on reconsideration.

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As such, the three remaining claims relating to miscellaneous February 15, 2016 false arrest for APO should survive summary judgment.

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While the Rule 54B standard of as justice requires may be flexible, justice does not require nor allow a court to violate the Rule 56 standard by weighing evidence in the light most favorable to the moving party.

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That is exactly what the court did in its order on reconsideration.

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For Harris to be controlling, there would need to be probable cause for the simple assault at the time of the second arrest.

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The district court itself defined probable cause as a reasonable conclusion drawn from the totality of the circumstances.

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Probable cause cannot be established where there are materially impeaching circumstances or when the information provided to the officers is not credible.

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The court did not consider this totality of the circumstances in the record here.

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In its order on reconsideration at page six,

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The court stated that the plaintiff provided no support for the speculation that probable cause had dissipated.

[00:03:10] Speaker 04:
Respectfully, that is not correct.

[00:03:13] Speaker 02:
You know, you talk about the first arrest for simple assault, but Officer Johnson said it wasn't an arrest.

[00:03:20] Speaker 02:
It was simply a Terry stop that this person was the one that they thought was the aggressor based on a discussion outside with an alleged victim and

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to get more information, they were just handcuffing this person while collecting more information.

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So I was curious about why your argument seemed to assume that there was actually an arrest, because for a Terry stop, they wouldn't even need probable cause, they just need reasonable suspicion.

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So we don't know the probable cause the officer even thought, or reasonable officers would have thought there was probable cause at any point to arrest her for simple assault.

[00:03:59] Speaker 04:
It is absolutely correct that at the summary judgment stage, the argument amongst the parties spoke to whether or not that first arrest for the simple assault was an arrest or merely a detention as you speak of.

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However, both parties agreed that there were two events in question here, one for the simple assault and one for the APO.

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Maybe two events, but the argument

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that the probable cause for the first one supported the arrest at the later time, it seems to confuse things to talk about that under the assumption that there was probable cause when it was described by the police officers themselves as just a Terry stop and the handcuffing was just simply part of effectuating officer safety.

[00:04:49] Speaker 04:
Does that matter?

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In the judgment on summary judgment, the order on summary judgment, the court determined that it need not resolve this specific dispute that you're speaking to because the court itself found on summary judgment that there was probable cause for that first event.

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And as such, on reconsideration, held that that probable cause carried over and disposed of plaintiffs three remaining claims relating to her false arrest claims for the APO.

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However, what is crucial here today in the era of law that we draw your attention to is that the district court did not properly consider the totality of the circumstances as to whether that probable cause that the district court itself found on summary judgment dissipated in the period between the two handcuffings, which I was referring to as the two arrests.

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Is the question a jury question or a question of law?

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We believe that the district court improperly disposed of information that should have been left to the jury.

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The district court found that there was no dispute of material fact as to whether probable cause dissipated.

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However, the error of law that we draw your attention to today is that the court did not consider the totality of the circumstances in the light most favorable to the moving party as is required by the Rule 56 standard.

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As I mentioned on

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page 6 of the reconsideration order, the court held that plaintiff provided no support for the speculation that probable cause dissipated.

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But the court did not consider the following four key pieces of evidence.

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First, the officers agreed that plaintiff should be cut loose and her handcuffs were removed.

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This one's handcuffs were off and she was wandering around her place of business for approximately 10 minutes.

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Second, Ms.

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Rodriguez was deemed the aggressor and no longer a credible source of information.

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Third, other than Ms.

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Rodriguez's statement, there's no independent evidence of what occurred on the bus.

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Ms.

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Rodriguez's scratches just as easily could have come from the only physical altercation for which there is actually objective video evidence, the one in which she was in fact the aggressor outside of the ticketing station.

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And finally, Ms.

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Rodriguez was illegally on the bus, and therefore, Ms.

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Lynn had a right to remove her.

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Ms.

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Rodriguez did not have a ticket and was subsequently charged with unlawful entry into a motor vehicle.

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In fact, during Officer Merzig's deposition, he even recognized that Ms.

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Lin had a right to remove Ms.

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Rodriguez from the bus.

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In the court's order on reconsideration, it ignored this evidence that probable cause had dissipated between the two handcuffings and thus could not be imputed onto the second arrest for APO.

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This is improperly weighing evidence and making inferences in favor of the moving party, contrary to the mandate of Rule 56.

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Upon reconsideration, the court did do its own analysis of the video evidence to determine if probable cause had dissipated.

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Is it possible that, assuming Ms.

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Lin was the victim of the first assault, that that would provide her a motive that would actually increase the probable cause that already exists

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when someone like miss Rodriguez as bruising says I was assaulted and I identify name my identify.

[00:08:09] Speaker 04:
The critical question here is whether or not there is any dispute of material fact, a genuine dispute of material fact as to whether that probable cause dissipated.

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So what I would draw your attention to is that it is equally likely here that Ms.

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Rodriguez, who was the aggressor outside of the ticketing office, and there is objective evidence that she provided false information to police officers about the incident in question, also had a motive that would significantly decrease probable cause and even dissipate it.

[00:08:37] Speaker 04:
And again,

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I understand that to a degree, but let me rephrase.

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Assume I think that in a different situation, all else being kind of unknown, there's probable cause to arrest someone who is accused of assault when the accuser is not anonymous and when the accuser has physical signs.

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And

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Now my question to you is, assume there's probable cause there.

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Is there more probable cause or is there less cause?

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Can we add to that knowledge?

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There had been a previous encounter where the accused may have been a victim and therefore might have a motive for the second

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So the incident in which miss Lynn that was attacked outside of the ticketing office actually came second.

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And therefore it would in your hypothetical she would have had to retroactively had.

[00:09:44] Speaker 00:
That's okay.

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So the.

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was everyone agrees in this land was the victim of second.

[00:09:53] Speaker 04:
And there's I'm sorry, yes, no, that's completely okay, I just wanted to clarify for you and I see that my time is coming to a close.

[00:09:59] Speaker 03:
So, yes, you could just explain to me what precisely your theory is of negligent supervision in this case.

[00:10:08] Speaker 04:
Sure, of course.

[00:10:11] Speaker 04:
So as you discussed, one of the arguments made in our brief is with regards to negligent supervision.

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And I will try to be quite brief because I realize that I'm over time.

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It's okay, answer the question as you need to.

[00:10:24] Speaker 04:
Thank you very much.

[00:10:25] Speaker 04:
And so in our brief, we discuss an error in granting summary judgment on plaintiffs negligent supervision and training claim, because we believe that the court and argue that the court engaged in an incorrect application of DCV Tulan, finding that Sergeant Richie's investigation of the APO could be distinguished from the lack of investigation in Tulan, which resulted in the court's finding of negligent supervision.

[00:10:51] Speaker 04:
However, in Tulin, the court held that defendant was liable for negligent supervision, not because there was no investigation, but rather because the investigation was not sufficient to identify critical information.

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So here, as in Tulin, there was negligent supervision based on the facts of the case.

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Sergeant Ritchie was aware that Ms.

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Lin was falsely arrested when he arrived on the scene, nonetheless went on to authorize another false arrest for APO after watching inconclusive video evidence of the incident.

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as the district court found in its opinion on summary judgment, it was- Sorry, Richard didn't watch video evidence of her.

[00:11:29] Speaker 02:
I know they were watching the video evidence of the fight out on the, or the assault out on the street or the sidewalk by the bus.

[00:11:39] Speaker 02:
Did he watch video evidence of the arrest itself?

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Or the handcuffing, I should say, itself.

[00:11:47] Speaker 04:
When he initially requested that Miss Lynn be arrested for the APO, that is before he looked at any video evidence as to whether the APO actually occurred or whether he believed that there was probable cause.

[00:12:00] Speaker 04:
I believe that he subsequently looked at the video evidence from within the actual office, the bus station, after making the suggestion that she should be arrested for the APO.

[00:12:14] Speaker 02:
I'm sorry, does the record say they looked at the evidence, the video of the arrest itself before she was removed and taken to the police station?

[00:12:27] Speaker 04:
I do not have a specific record site for that question at this time.

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I'm happy to gather one and bring it up.

[00:12:34] Speaker 02:
But that's your understanding of what happened?

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That is my understanding of what

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But as a district court found in its summary judgment decision, there was a genuine issue of material fact regarding whether probable cause existed for that APO because of the extreme lack of clarity in that surveillance video.

[00:12:52] Speaker 02:
But to get to Judge Rao's question, is that necessarily the same as whether there was negligent supervision?

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Because you can see the sergeant talking to the police officers about the handcuffing process.

[00:13:08] Speaker 02:
Contradictory words coming out of people's mouths, even if ultimately assume they were not probable cause for arresting for assaulting a police officer.

[00:13:19] Speaker 02:
That doesn't necessarily mean there was negligent supervision in making a call on the scene based on sort of contradictory information.

[00:13:29] Speaker 04:
I would draw your attention to 2 pieces of evidence that underscore the negligence supervision that occurred here first is that the suggestion for the arrest for an APL was made before any of this sort of objective analysis of the video evidence was done and second the conversations that were had

[00:13:48] Speaker 04:
with the police officers, led to significant uncertainty as to whether the officers subjectively themselves even believes that they had been quote APO.

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And so there was a lot of discussion around that with the officers.

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And while Sergeant Richie did that initial conversation with them, it remains highly unclear as to whether APO was appropriate based on even those subjective opinions.

[00:14:15] Speaker 00:
Give you a chance to respond to the government's argument in brief.

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That 2 issues were not served district.

[00:14:24] Speaker 00:
Or at least 2.

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2 issues were not.

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One is they say on count 7 negligent infliction of emotional stress.

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that the theory that there was infliction of emotional distress through excessive force was not preserved below.

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And then let me say the second one too and you can respond to it.

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And then they say on the DCHRA claim that the disparate impact on intentional discrimination was not preserved.

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Below they say it was not mentioned in the complaints and only briefly mentioned in opposition to summary judgment.

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If you could respond to that, I'd be great.

[00:15:09] Speaker 04:
Yes, of course.

[00:15:10] Speaker 04:
And thank you for giving me that opportunity.

[00:15:12] Speaker 04:
So I will speak first to the negligent infliction of emotional distress as you spoke.

[00:15:20] Speaker 04:
So in Ms.

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Lynn's opposition to defendant's motion for summary judgment, she argues that officers failed to follow MPD's procedures for identifying limited English proficiency persons

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which led to an unjustified use of force that placed Ms.

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Lin directly into danger.

[00:15:36] Speaker 04:
That's on page 44.

[00:15:37] Speaker 00:
So is that that's that's more than a theory that because of the language access issue she should not have been handcuffed at all arrested at all that you're saying that that goes beyond and says even if it was okay to arrest her or handcuff her

[00:15:57] Speaker 00:
that there was excessive force.

[00:16:01] Speaker 00:
Why do you read that into that?

[00:16:04] Speaker 00:
I'm not opposed to it.

[00:16:05] Speaker 00:
It doesn't have a magic word, excessive force.

[00:16:07] Speaker 00:
So tell me why it accomplishes the same.

[00:16:10] Speaker 04:
So here we argue that in plaintiff's opposition motion, she provided a detailed account of an instance where, for example, defendant Johnson yelled at her to turn around, grabbed her arm, and described to other officers unreasonable force was used to push Ms.

[00:16:27] Speaker 04:
Lin onto the ground when conducting the wrongful arrest.

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And as a result, she experienced extreme emotional consequences and physical consequences.

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for preservation purposes to mention it in the opposition to summary judgment motion and not in the complaint.

[00:16:46] Speaker 04:
We believe that we fully preserved this argument on appeal and as well here in the opposition to motion for summary judgment.

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However, even if the panel does not find a reversible error of law in the original summary judgment order, at bottom we ask that the

[00:17:02] Speaker 04:
September 30 2020 memorandum order which impermissibly dismissed plaintiff's three remaining claims relating to false arrest be vacated but it will also speak to your second question which was with regards to the title six dchra unintentional discrimination claim is that correct yes please okay so as well i will point your attention to i believe it's the same page page um

[00:17:30] Speaker 04:
44 on our opposition where, oh, excuse me, yes, page 44 on our plaintiff's opposition to your motion for summary judgment, where we state that even if the court does not find intentional discrimination that violates Title VI, the DCHRA claim is not automatically defeated because DCHRA goes beyond to protect unintentional discrimination as well.

[00:17:59] Speaker 04:
Thank you very much.

[00:18:00] Speaker 00:
I wasn't saying, thank you, you're done.

[00:18:01] Speaker 00:
I was just saying, thank you for answering my questions.

[00:18:04] Speaker 00:
I'll tell you if you're done.

[00:18:07] Speaker 02:
All right.

[00:18:07] Speaker 02:
Thank you very much.

[00:18:08] Speaker 02:
We'll give you some time for a little.

[00:18:09] Speaker 02:
Thank you very much.

[00:18:17] Speaker 02:
And do we know where council for the government is?

[00:18:20] Speaker 02:
Oh, you're on the video.

[00:18:21] Speaker 02:
Sorry.

[00:18:21] Speaker 02:
I forgot.

[00:18:25] Speaker 02:
I apologize.

[00:18:26] Speaker 02:
Good morning.

[00:18:28] Speaker 02:
Sorry.

[00:18:28] Speaker 02:
I apologize, Mr.

[00:18:30] Speaker 01:
No reason, and the court is ready.

[00:18:33] Speaker 01:
Good morning, thank you.

[00:18:34] Speaker 01:
May it please the court, Thailand Trayer for the appellees.

[00:18:39] Speaker 01:
There is an easy path to affirming the district court here, and that is to decide whether probable cause existed to arrest plaintiff for simple assault, in which case the existence of probable cause for that offense necessarily precludes plaintiff's false arrest claim based on APO.

[00:18:57] Speaker 01:
And it's abundantly clear from the record that probable cause existed

[00:19:01] Speaker 01:
based on the facts known to the officers at the time that they apprehended Ms.

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Lynn, and that probable cause persisted, notwithstanding the video footage that showed a different altercation than what Ms.

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Rodriguez reported.

[00:19:15] Speaker 01:
And I know my friend on the other side spent much time emphasizing whether or not the district court properly took into consideration the totality of the circumstances, but it's very important to note that nothing

[00:19:30] Speaker 01:
No facts came to light during the course of the investigation that would have called into question whether or not Miss Lynn actually assaulted Miss Rodriguez on the bus.

[00:19:42] Speaker 01:
There was subsequent video footage of a different officer.

[00:19:47] Speaker 03:
What fact that the officers did not believe that the first handcuffing was in fact an arrest?

[00:19:54] Speaker 03:
Does that matter for your argument?

[00:19:57] Speaker 01:
I don't think it matters, Your Honor.

[00:20:01] Speaker 01:
And probable cause existed independently for both offenses.

[00:20:07] Speaker 01:
And so if the court were to determine that one arrest occurred later in time, there's the existence of probable cause independently on the APO charge.

[00:20:20] Speaker 01:
As much as we argued initially that there was not even an arrest, we also argued below that

[00:20:26] Speaker 01:
of course, probable cause existed to substantiate that arrest.

[00:20:29] Speaker 01:
And so it was not a false arrest.

[00:20:32] Speaker 01:
But I think for the court's purposes, again, the easiest way to undertake this analysis is to view the facts as viewed through the lens of the officers at the time that they encounter Ms.

[00:20:45] Speaker 01:
Rodriguez.

[00:20:46] Speaker 01:
We have an eyewitness account, a victim who in this case is a bleeding injury on her face and positively identifies

[00:20:55] Speaker 01:
her assailant, the assailant's location, and in those circumstances, under the Pendergrass and many other cases, that is sufficient to establish probable cause to arrest plaintiffs at the time.

[00:21:07] Speaker 02:
And I just wanted to point out again that- Not if it dissipates, and you have the officers, when they look at the video, both of them, but clearly concluding that, oh, huh, is what we get.

[00:21:26] Speaker 02:
She was the aggressor, referring to Rodriguez.

[00:21:29] Speaker 02:
She was the aggressor.

[00:21:30] Speaker 02:
And they watched the incident on the bus itself.

[00:21:36] Speaker 02:
watch it and watch it and see what happens.

[00:21:38] Speaker 02:
And then they turn around and they talk about not that there was another assault and even mention anything like they go, huh, should she be charged with illegal entry or do exactly what is the sort of technical charge for getting on the bus without a ticket?

[00:21:51] Speaker 02:
Now, if there had just been a brawl on the bus, they'd be talking about that.

[00:21:55] Speaker 02:
But we know that they said, based on the information in front of them, that, huh, Rodriguez is the aggressor.

[00:22:04] Speaker 02:
And whatever happened on the bus made them only contemplate and think about charges for illegal entry.

[00:22:10] Speaker 02:
There's what in the record.

[00:22:14] Speaker 02:
And by the way, both of them just described a single incident.

[00:22:17] Speaker 02:
Neither of them said that there were two fights.

[00:22:23] Speaker 02:
They both described single incidents.

[00:22:25] Speaker 02:
And it's just that by the time they finished looking at the videos, Ms.

[00:22:28] Speaker 02:
Rodriguez's credibility had been completely shot to the point where they said,

[00:22:34] Speaker 02:
She's the aggressor.

[00:22:38] Speaker 02:
So what evidence do you have that there was another fight, assault by Ms.

[00:22:44] Speaker 02:
Lin?

[00:22:45] Speaker 02:
What evidence did a reasonable officer have that there was even a fight on the bus itself in which Ms.

[00:22:54] Speaker 02:
Lin was the aggressor?

[00:22:56] Speaker 01:
Yes, and several answers to your questions, Your Honor.

[00:23:00] Speaker 01:
First of all, I'll point the court to page 22

[00:23:03] Speaker 01:
of plaintiff's brief, where plaintiff acknowledges that the footage was not of the assault on the bus.

[00:23:09] Speaker 01:
So I think by plaintiff's own acknowledgement there, in addition to Ms.

[00:23:14] Speaker 01:
Rodriguez's description, I think it's JA261.

[00:23:17] Speaker 02:
I'm sorry, plaintiff's acknowledgement?

[00:23:21] Speaker 01:
So I'm reading from plaintiff's brief at page 22.

[00:23:23] Speaker 02:
I know, but I asked what evidence is in the record that the police officers have.

[00:23:29] Speaker 02:
They didn't have her brief.

[00:23:30] Speaker 01:
The evidence is, and my apologies, the evidence in the record would be the body camera, the body worn camera footage from Officer Vullo, their conversation with Ms.

[00:23:44] Speaker 01:
Rodriguez, where she describes an altercation on the bus.

[00:23:48] Speaker 01:
And I think that's acknowledged and substantiated by plaintiff in her brief.

[00:23:52] Speaker 01:
But I think another point is that that information gleaned from the

[00:23:59] Speaker 01:
video footage occurred after the fact, and the officers are still undertaking their investigation at that point.

[00:24:07] Speaker 01:
There are additional facts that come to light that need to be run down, but again, it's of a different altercation than what Ms.

[00:24:15] Speaker 01:
Rodriguez described, and that those after the fact, that information learned after the fact does not, again, call into question what the officers knew at the time

[00:24:29] Speaker 01:
that they initially apprehended plaintiff and so that would be impossible.

[00:24:34] Speaker 02:
The closed circuit video of what happened on the bus itself in the record because we don't have that.

[00:24:39] Speaker 01:
No, but we have again the report from Mr. Rodriguez of different altercation and the officers were looking at when they saw her get on the bus.

[00:24:53] Speaker 02:
Inside the travel agency, they were looking at, it certainly looked like at least where she was entering onto the bus.

[00:25:00] Speaker 02:
They said, there she is.

[00:25:02] Speaker 02:
I want to see what she does.

[00:25:03] Speaker 02:
And she got on.

[00:25:05] Speaker 02:
Whereas all we have is video of officers watching a grainy video.

[00:25:10] Speaker 01:
That's right.

[00:25:11] Speaker 01:
And so the video that they were viewing, I think actually it's, it may be, I'm sorry, JA279.

[00:25:21] Speaker 01:
And the record, there's a video, I believe the camera is placed outside of the station.

[00:25:26] Speaker 01:
And so you can see the bus on the sidewalk outside of the station.

[00:25:31] Speaker 01:
So there's footage of what occurred on the sidewalk, but not inside the bus.

[00:25:37] Speaker 01:
But again, I think it's only fair to read plaintiffs brief as, at the very least, not disputing that there were two altercations that occurred.

[00:25:49] Speaker 01:
I'd also point the court to

[00:25:51] Speaker 01:
officer Vullo's deposition and the record.

[00:25:53] Speaker 01:
I think that's around JA-541 where he describes that in making the arrest report and the ultimate simple assault charges against Ms.

[00:26:03] Speaker 01:
Lynn that he went back through the video footage and back through his notes and considered the fact that there were these two different altercations reported.

[00:26:15] Speaker 01:
And again, just to

[00:26:18] Speaker 01:
sort of take a step back, the probable cause inquiry is not a high bar.

[00:26:24] Speaker 01:
It's not the same thing as guilt beyond a reasonable doubt.

[00:26:29] Speaker 01:
The standard allows for facts and circumstances on both sides of the equation, but where there's a fair probability that here plaintiff assaulted Ms.

[00:26:41] Speaker 01:
Rodriguez, where she's making that report.

[00:26:44] Speaker 01:
And again, she has a bleeding injury on her face.

[00:26:46] Speaker 01:
and there's nothing in the video footage to call into question whether or not that assault occurred on the bus.

[00:26:56] Speaker 01:
The probable cause did persist throughout the entire time.

[00:27:00] Speaker 02:
We require some evidence that this injury occurred on the bus.

[00:27:11] Speaker 02:
We have the eye witness.

[00:27:13] Speaker 02:
Absence of evidence can't be sufficient.

[00:27:15] Speaker 02:
It has to be some affirmative evidence, and there can't be materially impeaching information.

[00:27:20] Speaker 01:
That's right.

[00:27:21] Speaker 02:
And so my affirmative at the time of the arrest, not the post hoc report, not going back at the time of the arrest, not going back and viewing things later in the station.

[00:27:33] Speaker 02:
At the time of the arrest, the positive affirmative information of a second assault was what?

[00:27:41] Speaker 01:
The positive.

[00:27:43] Speaker 01:
Because?

[00:27:45] Speaker 01:
I'm sorry.

[00:27:46] Speaker 01:
I may have missed it.

[00:27:47] Speaker 02:
Was it just a Rodriguez explanation?

[00:27:50] Speaker 01:
Yes.

[00:27:51] Speaker 01:
And that is, it's her.

[00:27:53] Speaker 01:
I'm sorry.

[00:27:55] Speaker 01:
The, the affirmative evidence in the record is her, um, eyewitness victim account, her bleeding injury on her face and the bleeding injuries fully covered by the video of the assault that she initiated outside.

[00:28:10] Speaker 02:
Then you see Ms.

[00:28:11] Speaker 02:
Lynn swinging back.

[00:28:12] Speaker 02:
So,

[00:28:13] Speaker 02:
I'm asking not whether before they saw the videos.

[00:28:16] Speaker 02:
I'm asking before they effectuated the rest, as opposed to the Terry stuff.

[00:28:23] Speaker 02:
The affirmative evidence was you're sticking with the Ms.

[00:28:26] Speaker 02:
Rodriguez had a scratch and told a story and that wasn't materially impeached.

[00:28:35] Speaker 01:
Yes, and that's sufficient under the Pendergrass case.

[00:28:37] Speaker 01:
And my only point with respect to

[00:28:40] Speaker 01:
but I think you're on a term, the absence of evidence later on is that plaintiff has asserted that materially impeaching circumstances arose later in time by virtue of the video.

[00:28:53] Speaker 01:
And my point there was that we don't have video evidence actually that would call into question that account of the assaults on the bus, but.

[00:29:04] Speaker 02:
You have video evidence that would support it?

[00:29:09] Speaker 01:
that would, I'm sorry, I think I missed your honor.

[00:29:13] Speaker 02:
Again, other than we have heard distinct from this Rodriguez complaint outside when the police first arrived, which was pretty thoroughly discredited.

[00:29:25] Speaker 02:
You said there's additional evidence of the assault on the bus.

[00:29:32] Speaker 01:
No, and I'll just sort of take issue a little bit with the premise there, your honor's question.

[00:29:38] Speaker 01:
know that her credibility was totally, she was totally discredited there.

[00:29:44] Speaker 01:
She may have initially misrepresented her, the reasons for why she got into the altercation.

[00:29:51] Speaker 01:
But again, I think the question really is whether those materially impeaching circumstances presented to the officers at the time that they first apprehended Ms.

[00:30:02] Speaker 01:
Lynn, and that's simply not the case.

[00:30:08] Speaker 01:
And so again, I think the court can easily affirm the district court by approaching this first from the probable cause for simple assault perspective.

[00:30:21] Speaker 01:
Independent of that probable cause existed on the APO charge.

[00:30:25] Speaker 01:
I'm happy to answer any other questions the court might have, otherwise we will rest on our brief.

[00:30:34] Speaker 02:
All right, thank you.

[00:30:38] Speaker 02:
Okay, Miss Dennis, I'm looking at you two minutes.

[00:30:46] Speaker 02:
Do you agree that there were two separate altercations?

[00:30:50] Speaker 02:
Would you can see that?

[00:30:53] Speaker 04:
Both parties agreed in their briefing at the summary judgment stage that there were two incidents, at least in question.

[00:30:59] Speaker 04:
However, we do not concede that there is any objective evidence beyond Ms.

[00:31:04] Speaker 04:
Rodriguez's non-credible statements that the simple assault on the bus ever occurred.

[00:31:09] Speaker 02:
We only agree there was an incident as in an interaction of some sort on the bus, but we don't know that there was a physical interaction.

[00:31:15] Speaker 04:
Exactly.

[00:31:16] Speaker 04:
There is, as my friend on the other side recognized, there is evidence, video evidence of

[00:31:21] Speaker 04:
Miss Lynn and Miss Rodriguez both getting on to the bus, but no evidence from within the bus.

[00:31:26] Speaker 04:
The only evidence the assault on the bus even occurred, as you mentioned, was the non credible statements from Miss Rodriguez and her scratches.

[00:31:34] Speaker 04:
Any statements from Miss Rodriguez, however, lost all credibility after the CCTV footage was viewed.

[00:31:40] Speaker 04:
And although we recognize that the CCTV footage did deal with the altercation outside of the ticketing office rather than inside of the bus,

[00:31:50] Speaker 04:
The CCTV footage is objective evidence that miss Rodriguez provided false information to the police officers about the incident in question and is no longer a credit credible source of information and again the district court impermissibly dismissed this impeaching value of the CCTV footage.

[00:32:08] Speaker 04:
In order to determine whether probable cause dissipated before that second handcuffing, the court must consider the totality of evidence between the two handcuffings and it must do so in the light most favorable to the non moving party.

[00:32:21] Speaker 04:
Yet on reconsideration, the court failed to consider any evidence offered by the plaintiff in the record that probable cause dissipated before the arrest for the APO.

[00:32:30] Speaker 04:
If the court had considered the evidence in the light most favorable to Miss Lynn, there would be a genuine dispute of material fact as to whether probable cause existed for any charge at the time of the second arrest.

[00:32:41] Speaker 04:
As a result, Harris does not dispose of plaintiff's three remaining claims relating to Miss Lynn's February 15, 2016 false arrest for APO.

[00:32:50] Speaker 04:
Any questions?

[00:32:52] Speaker 04:
Thank you so much for your time.

[00:32:53] Speaker 04:
Thank you very much for your argument.

[00:32:56] Speaker 04:
The case is submitted.