[00:00:00] Speaker 02: Case 125-70, Jared Fishman versus District of Columbia et al. [00:00:06] Speaker 02: at balance. [00:00:07] Speaker 02: Ms. [00:00:07] Speaker 02: Pittman for the balance, Mr. Gerstein for the epaulette. [00:00:12] Speaker 04: Morning, counsel. [00:00:13] Speaker 04: Ms. [00:00:13] Speaker 04: Pittman, please proceed when you're ready. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: May it please the court, Lucy Pitman, on behalf of the District of Columbia and the officers, and I would like to reserve two minutes for rebuttal. [00:00:25] Speaker 02: The District Court erred here when it denied qualified immunity on Fishman's Fourth Amendment claims. [00:00:31] Speaker 02: The officer's conduct here, which was stopping Mr. Fishman and investigating suspicion of child abuse, was constitutional. [00:00:38] Speaker 02: But even if there is some question as to the constitutionality of that conduct, the officers would be entitled to qualified immunity because Mr. Fishman has not identified a controlling case or robust consensus of cases that put the fact pattern here into the clearly established prong required to defeat qualified immunity. [00:01:02] Speaker 02: I'd like to begin with qualified immunity, but I'd also like to touch on other issues. [00:01:06] Speaker 04: Can I ask a question, just to start us off, just about jurisdiction? [00:01:09] Speaker 04: And there may be an obvious answer here, but there's definitely jurisdiction over the denial of qualified immunity, because the denial of qualified immunity is immediately appealable, as an exception to the final judgment rule, because it's an allocatory review. [00:01:24] Speaker 04: And then where you started was you want a review of the denial of summary judgment as to many of the officers. [00:01:31] Speaker 04: Now as to that, apart from qualified immunity grounds, there's two jurisdictional questions I have. [00:01:38] Speaker 04: One is the denial of summary judgment as to every officer other than Officer Todaro as to whom summary judgment was granted. [00:01:46] Speaker 04: For the denial of summary judgment, those are usually non-final judgments as to which there's no interlocutory appeal. [00:01:53] Speaker 04: So that's one question. [00:01:55] Speaker 04: And then the second is, [00:01:57] Speaker 04: under rule 54B, Federal Rules of Procedure 54B, if there's multiple claims and multiple parties, I think the way the rule works is that [00:02:07] Speaker 04: A final judgment is a final judgment as to all claims against all parties. [00:02:11] Speaker 04: And in order to get an appeal, when there's only a judgment as to one party, here it would be Todaro, again, apart from qualified immunity. [00:02:18] Speaker 04: Then the district court has to certify that the requisites of the rule are met such that you can immediately appeal that one, even though all claims against all parties haven't been decided. [00:02:28] Speaker 04: So at the end of the day, the question is, yes, we have jurisdiction over the denial of qualified immunity. [00:02:32] Speaker 04: Do we have jurisdiction over anything else? [00:02:34] Speaker 02: You do have jurisdiction over the denial of qualified immunity. [00:02:37] Speaker 02: And I guess I just want to clarify that that involves all five officers. [00:02:40] Speaker 02: All five officers, okay. [00:02:42] Speaker 04: And so- But then as to them, what we definitely have is their appeal from the denial of qualified immunity. [00:02:47] Speaker 04: But I want to know is, do we have anything else as to anybody? [00:02:51] Speaker 02: So you also have, and I just want to make sure I'm clear because you mentioned the denial of summary judgment. [00:02:57] Speaker 02: I think embedded within the interlocutory appeal that is allowed for the denial of qualified immunity is that this court can then reverse the denial of summary judgment on behalf of the officers in order that the district court enter judgment on behalf of the officers on qualified immunity grounds. [00:03:14] Speaker 02: That's right. [00:03:15] Speaker 02: And that would be either prom, the constitutional right. [00:03:17] Speaker 02: Now, so the last part is just, I think, the only other issue that's here is the common law claim. [00:03:22] Speaker 02: And the common law claim, we've asserted in our brief that because it is intricately intertwined with the Fourth Amendment claims, that this court can exercise jurisdiction. [00:03:34] Speaker 04: Putting aside the common law claims for a second, I mean, I think that also is subject to 54B at some point, but for [00:03:42] Speaker 04: If all we have before us is the denial of qualified immunity, that's one thing. [00:03:46] Speaker 04: And I totally understand that one prong of qualified immunity gets to the merits of the constitutional issue. [00:03:51] Speaker 04: But the way your brief is teed up, it asks for reversal, send it back down, put aside to Dara for a second. [00:04:00] Speaker 04: Send it back down, reverse the denial of qualified immunity and reverse it to the grant of summary, denial, I'm sorry. [00:04:06] Speaker 04: Let me start over because I'm not being precise. [00:04:09] Speaker 04: Denial of summary judgment. [00:04:10] Speaker 04: reverse the denial of summary judgment as to several officers, and send it back to direct the grant of summary judgment as to those officers. [00:04:19] Speaker 04: That's okay on qualified immunity grounds. [00:04:22] Speaker 04: And yes, the constitutional question is embedded within qualified immunity. [00:04:25] Speaker 04: But that's different from saying even aside from qualified immunity, [00:04:29] Speaker 04: there should be a final summary judgment as to those officers. [00:04:33] Speaker 04: It has to be, I think, it has to be unqualified immunity grounds. [00:04:36] Speaker 02: Either prong, but yes, it has to be unqualified immunity grounds, which is what we're arguing under the two Fourth Amendment claims, which is- But your whole brief is set up to say, we should win under the Constitution, and then even if we don't, we should win under qualified immunity. [00:04:52] Speaker 04: And the whole thing is qualified immunity, right? [00:04:54] Speaker 04: So, I mean, just the way it's structured, I think it all is about qualified immunity. [00:04:58] Speaker 04: Then if we put that aside, there's the question of, as to Todaro, can he appeal on any ground other than qualified immunity, given that there wasn't a final judgment as to all claims against all parties? [00:05:14] Speaker 02: Sure. [00:05:15] Speaker 02: So a couple of things. [00:05:17] Speaker 02: First, if the structure of the brief is confusing, I apologize for that. [00:05:21] Speaker 02: I think I was just thinking we start with the constitutional claim. [00:05:25] Speaker 02: That's the first prong of qualified immunity. [00:05:27] Speaker 02: And regularly we think of qualified immunity as falling under the clearly established, which is usually the easier prong to answer. [00:05:34] Speaker 02: So that's usually what's answered. [00:05:35] Speaker 02: And so that's probably where you get the bulk of- But that's what you meant then. [00:05:38] Speaker 02: Okay. [00:05:39] Speaker 02: Now I understand- Yes. [00:05:39] Speaker 04: So- [00:05:40] Speaker 04: Which is totally fine. [00:05:41] Speaker 04: So that the merits of the constitutional question, you're still viewing that as falling under qualified immunity. [00:05:46] Speaker 04: It's just the first prong. [00:05:48] Speaker 02: Sure. [00:05:48] Speaker 02: It's just that once you answer that, you don't even have to get to the second prong if it's constitutional. [00:05:52] Speaker 04: But that is absolutely... We're still within the rubric of qualified immunity. [00:05:56] Speaker 04: Absolutely. [00:05:57] Speaker 04: So then you'd say the same thing as to Jadaro. [00:05:59] Speaker 04: The only thing that's before us as to Jadaro [00:06:01] Speaker 04: also is qualified immunity. [00:06:03] Speaker 02: That's right. [00:06:03] Speaker 04: Okay. [00:06:04] Speaker 02: That's right. [00:06:04] Speaker 02: And again, putting aside the common law issue that we've teed up that the court can and I think the case law does support that the court can exercise jurisdiction on that because of how intertwined the things are. [00:06:14] Speaker 02: Excuse me. [00:06:16] Speaker 04: And that works even if it's an interlocutory appeal under a qualified immunity, because pen and appellate jurisdiction, that can come along with an interlocutory. [00:06:27] Speaker 02: Yes, yes. [00:06:28] Speaker 02: There's at least one. [00:06:29] Speaker 02: There's probably a couple of cases that we cite in our brief that were specifically in that procedural posture. [00:06:33] Speaker 02: as being an interlocutory appeal on qualified immunity. [00:06:36] Speaker 02: And similarly, common law, false arrest, false imprisonment. [00:06:41] Speaker 02: Maybe it was an excessive force, depending upon what someone was moving under Fourth Amendment in those cases. [00:06:47] Speaker 02: But yes. [00:06:47] Speaker 04: And as to something that tags along with an interlocutory appeal, would the tag along, like a state law claim, would the tag along also have to be whatever's interlocutorily appealable, as opposed to you can just bring along [00:07:01] Speaker 02: I don't see a limitation on that, but it does have to be intertwined with what is, I think, before the court on the interlocutory appeal, which it is here. [00:07:09] Speaker 02: It's not really exceeding any bounds there, I think. [00:07:13] Speaker 04: Okay. [00:07:15] Speaker 04: All right. [00:07:15] Speaker 04: Now that we've got the jurisdictional question, I think mapped out at least for my purposes, then go ahead and- Okay. [00:07:21] Speaker 02: So I'll start with, I think, what is the second prong of qualified immunity, which is the clearly established, right? [00:07:27] Speaker 02: It's sort of undisputed here that there is no control in case or robust consensus of cases where there was a Fourth Amendment violation under similar circumstances. [00:07:36] Speaker 02: Mr. Fishman largely concedes this by saying that he thinks this is one of those rare obvious cases where the unlawfulness of the officer's conduct is sufficiently clear without a precedent. [00:07:45] Speaker 02: But his argument is based on defining his right under the Fourth Amendment at too high a level of generality. [00:07:52] Speaker 02: many Supreme Court cases that have said and warned that you are not to do that in Fourth Amendment analysis. [00:08:00] Speaker 02: I think Wesby stressed the need for precedent with similar facts because the Fourth Amendment is a fact-intense inquiry. [00:08:07] Speaker 02: That by itself sort of ends the Fourth Amendment analysis here. [00:08:11] Speaker 02: That's where the court wanted to go. [00:08:13] Speaker 02: Without having a precedent with similar facts, the officers should have been granted qualified immunity. [00:08:20] Speaker 02: But even if the court wanted to address the constitutional claim, the first prong, as we argue in our brief, the stop here was reasonable. [00:08:31] Speaker 02: It was constitutionally sound. [00:08:33] Speaker 02: Investigatory stops are permitted when officers have reason to believe that they have suspicion of criminal activity. [00:08:41] Speaker 02: And here we have a 911 caller, an eyewitness to an incident. [00:08:46] Speaker 02: And her information is provided to the officers by dispatch that they saw a grown man grab a child and throw her into a car. [00:08:55] Speaker 02: That is more than sufficient to raise for a reasonable officer the question of whether or not that child had been harmed, had been abused, whether it be cruelty to children or assault, that there's reason to stop [00:09:10] Speaker 03: Your argument today, like your brief, is relying entirely on this theory about child abuse. [00:09:16] Speaker 03: And maybe you did preserve that, but if you did, wouldn't it have been a much better use of everyone's time for you to file a reconsideration motion in the district court if, as you see it, you had clearly presented an argument and the district court simply ignored it? [00:09:32] Speaker 02: That's an option, but so was an interlocutory appeal an option. [00:09:35] Speaker 02: And here, I don't think there can be really any question that it is preserved. [00:09:40] Speaker 02: I can refer the court directly to Joint Appendix 308 and 309. [00:09:44] Speaker 02: And there, before the district court, it is abundantly clear that kidnapping was not the only offense that was at issue. [00:09:52] Speaker 04: I think the premise of Judge Garcia's question was that you did preserve it. [00:09:56] Speaker 04: And I guess the question is, even assuming that you did, [00:10:00] Speaker 04: If the district court just didn't treat with whether child abuse could be a predicate for the duration of the detention, then where are we? [00:10:09] Speaker 04: Because we're looking at something that the district court just didn't weigh in on. [00:10:15] Speaker 02: Sure. [00:10:15] Speaker 02: I mean, to be fair, the district court does have one statement in the order about the fact that he didn't think that the child looked harmed or injured. [00:10:24] Speaker 02: So perhaps that was his way of addressing that issue. [00:10:28] Speaker 02: I would argue that's insufficient. [00:10:31] Speaker 02: And yes, I [00:10:32] Speaker 03: that the district court did not see this as an argument in the case, and it would certainly be unusual for us to address it in the first instance. [00:10:40] Speaker 03: So the next question was certainly going to be, why shouldn't we, if you're right that it's preserved, why should we do anything more than remand it back to the district court for it to do this analysis? [00:10:51] Speaker 02: Sure. [00:10:52] Speaker 02: Reconsideration is an option, but this court applies the exact same standard that the district court applies and does so without any deference to the district court. [00:11:00] Speaker 02: And so I understand remands where there might be deference to the district court, but that's unnecessary here. [00:11:06] Speaker 02: And there's significant case law about the fact that on summary judgment, this court is reviewing de novo and answering the exact same question for the district court. [00:11:14] Speaker 04: Well, I mean, it seems to me that you could think about it a couple of ways. [00:11:17] Speaker 04: One is the [00:11:20] Speaker 04: You argue that you'd be entitled to qualified immunity even if we take child abuse out of the mix, right? [00:11:27] Speaker 04: You think that the officers are all entitled to qualified immunity even as to kidnapping. [00:11:33] Speaker 04: That is not something we've put for- Even on the clearly established problem. [00:11:37] Speaker 04: Maybe I misunderstood. [00:11:40] Speaker 04: You're not asking for qualified immunity as to kidnapping, period. [00:11:44] Speaker 02: We're not. [00:11:44] Speaker 02: We took that out because we didn't want there to be a disputed fact before this court. [00:11:48] Speaker 02: I think that it would be a disputed fact as to when reasonable suspicion for qualified immunity ended or not. [00:11:54] Speaker 04: Right, that's on the first prong. [00:11:57] Speaker 04: But on the second prong, there's an overlay, which is clearly established. [00:12:01] Speaker 04: And you're not arguing, it sounds like now, that even if reasonable suspicion dissipated as to when the detention had to stop, that it wasn't clearly established that reasonable suspicion dissipated. [00:12:13] Speaker 02: It isn't something I argued until for fairness. [00:12:15] Speaker 02: I don't want to raise it now, although I think that would be a fair ground. [00:12:18] Speaker 04: No, thank you for just setting out what you actually argued. [00:12:21] Speaker 04: So then I guess the question would be, [00:12:23] Speaker 04: Are you arguing that even if the district court didn't address qualified immunity as, I'm sorry, didn't address child abuse in its resolution that no matter what, the officers are entitled to qualified immunity as to child abuse? [00:12:47] Speaker 04: they would be. [00:12:47] Speaker 04: So in other words, what would be the point of sending it back to the district court? [00:12:52] Speaker 04: Is that part of your argument or not? [00:12:55] Speaker 02: Certainly part of our argument is that sending this back to the district court I think would be unnecessary and probably not efficient. [00:13:02] Speaker 02: It's fully briefed here. [00:13:04] Speaker 02: It can be resolved here. [00:13:06] Speaker 02: And I do think that it is obvious that qualified immunity applies. [00:13:08] Speaker 02: As I said at the outset, the burden is on Mr. Fishman to identify a case. [00:13:12] Speaker 02: He has not identified a case. [00:13:14] Speaker 02: That's it. [00:13:15] Speaker 02: That's the game. [00:13:16] Speaker 04: So I don't, I don't think that it's as simple as that because yes, there's a lot of cases that say you don't do it at a high level of generality. [00:13:22] Speaker 04: You got to do it with some specificity. [00:13:24] Speaker 04: Sure. [00:13:25] Speaker 04: And in a lot of situations that means you need a case, but it's just not true. [00:13:29] Speaker 04: If it's obvious that there's no longer any suspicion, you don't need a case that says, oh, there's no longer any suspicion on these particular facts. [00:13:36] Speaker 04: If there's just not suspicion any longer, there's just not. [00:13:39] Speaker 04: And that principle applies. [00:13:42] Speaker 04: Maybe there's not a case because it's so obvious that there's not, that no case ever arises with the context, right? [00:13:46] Speaker 04: You could have that situation. [00:13:49] Speaker 04: And so that would be the question. [00:13:52] Speaker 04: I don't think it's open and shut just because you can't point to a case on the same facts. [00:13:56] Speaker 02: Sure, but here what we have is, I think, a factual predicate that is just incorrect, that the reason the officers don't have suspicion is because the kidnapping had dissipated and no consideration of taking into account the child abuse. [00:14:10] Speaker 02: There doesn't seem to be any dispute that at the outset, the stop was lawful. [00:14:14] Speaker 02: So the question really is, why would reasonable suspicion have dissipated in this context in those 25 minutes prior to actually talking to- As to abuse you're talking about? [00:14:23] Speaker 02: As to the child abuse, prior to actually- When did it? [00:14:26] Speaker 04: Did it ever? [00:14:28] Speaker 02: I don't believe that it did. [00:14:30] Speaker 04: So you think the detention could have continued even longer as to abuse? [00:14:34] Speaker 02: Yeah, I think that they could have investigated further. [00:14:36] Speaker 04: I think the officers rightly... What were they lacking at the end of the detention as to abuse? [00:14:41] Speaker 02: So I think what the officers determined was that this was better turned over to the Youth Division and Child and Family Services Agency because the investigation would have been, I think, [00:14:53] Speaker 02: It's not the kind of investigation you do quickly as a Terry stop, right? [00:14:58] Speaker 02: And so that's what they do at the end of this. [00:15:01] Speaker 02: You hear Lieutenant Loftis directing his officers to reach out to the Youth Division. [00:15:05] Speaker 02: That's the division that investigates child abuse with the Child and Family Services Agency. [00:15:09] Speaker 02: And there is reference in the complaint to the fact that the Youth Division about a month later resolved this and had this be unfounded. [00:15:17] Speaker 02: And the only reason you do such a report is if you still have reason to believe that there might be child abuse. [00:15:22] Speaker 02: That's the standard for making such a referral to the Child and Family Services Agency. [00:15:26] Speaker 02: And so while I don't think that reasonable suspicion ever dissipated completely, I think the officers felt comfortable stopping the Terry stop. [00:15:35] Speaker 02: Because I don't believe, because the child was at imminent danger, I think, at that moment. [00:15:40] Speaker 02: And that they could refer it over to the professionals who actually look at child abuse regularly. [00:15:45] Speaker 04: So did the Terry stop have to stop? [00:15:48] Speaker 02: I don't think so, but it did. [00:15:51] Speaker 02: And so I don't know that the court has to answer that for sure it had to stop. [00:15:55] Speaker 02: Again, I think there were still some questions about what occurred in this incident. [00:16:05] Speaker 04: So then as your bottom line as to why we should rule on this, even though by your own estimation, the district court didn't take into account child abuse, [00:16:15] Speaker 04: that there would be no point to remand it because no matter what the officers are entitled to qualified immunity. [00:16:20] Speaker 04: Yes, that's the way you're perceiving of it. [00:16:23] Speaker 02: And given that the next step before the district court would be a trial, I think that would be. [00:16:29] Speaker 02: a waste of both judicial resources, party resources, and jury time to have a trial when this is now- We don't know that there would be a trial, right? [00:16:39] Speaker 04: Because if the district court didn't take into account child abuse and it were remanded for the district court to do that, then the district court might find qualified immunity. [00:16:46] Speaker 02: Fair enough, fair enough. [00:16:47] Speaker 02: The district court might allow some additional briefing or if the court were to order that. [00:16:52] Speaker 02: But that would still be, I think, a duplication of the efforts that are already before this court. [00:16:57] Speaker 02: And this court is certainly empowered under the summary judgment standard to go ahead and rule on that now, given that it is fully briefed and before this court. [00:17:10] Speaker 03: I have one preservation question. [00:17:13] Speaker 03: So it strikes me as interesting, at least, to think about whether it's preserved as to Todaro. [00:17:19] Speaker 03: So just assume, try not to question the factual premise. [00:17:23] Speaker 03: It's preserved in the affirmative motion for summary judgment. [00:17:27] Speaker 03: That motion's filed months after Todaro's opposition. [00:17:30] Speaker 03: Assume that Todaro did not raise a child abuse argument. [00:17:35] Speaker 03: Why, in your view, or is it preserved as to Todaro when arguably he forfeited by filing that opposition without raising it? [00:17:44] Speaker 02: Sure, but he is one of the officers in the summary judgment briefing where it is raised. [00:17:49] Speaker 02: So it is raised before the district court on behalf of Officer Todaro. [00:17:54] Speaker 02: While not in the opposition specifically, in your hypothetical, I don't think that that matters given that the district court has all of these filings before and is resolving these together. [00:18:08] Speaker 02: And it is an affirmative defense that he put forth in his motion for summary judgment. [00:18:13] Speaker 04: But I thought he did. [00:18:15] Speaker 04: He did say something about child abuse in his opposition, I thought. [00:18:19] Speaker 02: You thought he did say something? [00:18:20] Speaker 02: Well, I wasn't fighting the hypothetical. [00:18:22] Speaker 03: Yes, thank you. [00:18:25] Speaker 02: Yeah. [00:18:26] Speaker 03: It certainly says something, not saying nearly as much as the other motion does. [00:18:30] Speaker 02: That's right. [00:18:30] Speaker 02: That's right. [00:18:31] Speaker 02: And so I think between the two, if I am allowed to change the facts of the hypothetical, I do think that between the two documents, it is preserved for Officer Todaro. [00:18:40] Speaker 04: Can I ask one question about Tadara unless my colleagues are, because this is shifting just a little bit, which is, can you just help me in a case in which multiple officers are on a scene and one of them [00:18:58] Speaker 04: Summary judgment is sought as to one of them, presumably because of that person's testimony that they had no reason to doubt the account that they'd heard on the scene, which I can totally understand why they would seem to be distinct and therefore deserving of summary judgment being granted against them, unlike some of the other officers. [00:19:19] Speaker 04: Maybe I can understand the thinking behind that. [00:19:20] Speaker 04: But in order for there to be a judgment entered against that officer, [00:19:27] Speaker 04: does it matter whether that officer had independent authority to end the stop? [00:19:33] Speaker 02: I'm sorry. [00:19:33] Speaker 02: Can you repeat the last part? [00:19:35] Speaker 04: Yeah. [00:19:35] Speaker 04: So judgments entered against Todaro on the Fourth Amendment claim. [00:19:39] Speaker 04: And my question is, before the entry of judgment against Todaro on the Fourth Amendment claim, does it matter whether he had authority independently to end the stop? [00:19:53] Speaker 04: Because if he couldn't end the stop, then even if he reaches a conclusion, it wouldn't necessarily mean the stop ends. [00:20:01] Speaker 04: It would mean that maybe he would then say, hey, what are we doing here? [00:20:05] Speaker 04: And then he would have a conversation with his colleagues and maybe somebody with authority to end the stop. [00:20:11] Speaker 04: would then maybe do it, maybe not, because maybe that person has some other ideas. [00:20:15] Speaker 04: My only question is did this ever come up and how does this typically play out in this kind of context where there's multiple officers on a scene and there may be a question as to whether the person, if you single out one person, did they have independent authority to terminate the encounter? [00:20:31] Speaker 02: Sure, I don't believe on this record, it came up at the district court. [00:20:35] Speaker 02: There is some discussion about it in the briefing about the fact that he had a pretty minor role in all of this. [00:20:41] Speaker 02: And I think that that also kind of explains why at his deposition testimony, he was explaining that while he [00:20:49] Speaker 02: didn't have reason to doubt what the girls were saying, he still had reasonable suspicion for kidnapping. [00:20:54] Speaker 02: And that makes sense. [00:20:55] Speaker 02: If you actually watch his body worn camera footage, you'll see he had pretty limited information because he was not the investigating officer who was interviewing the mother or the children. [00:21:05] Speaker 02: And he wasn't interviewing Fishman. [00:21:07] Speaker 02: And so I think that all of that sort of supports that judgment against him is truly inappropriate here in this context, not just because of the subjective tests that the district court applied when considering his Fourth Amendment claim, but also his role here. [00:21:24] Speaker 02: And we do include that in our briefing, that he had that limited role of more of a back up officer. [00:21:28] Speaker 04: You say he had a limited role, but I didn't understand you to be saying the reason the limited role matters is because he couldn't have done anything about the stop on his own. [00:21:35] Speaker 04: And maybe that's just- Sure. [00:21:37] Speaker 04: I admit that may not be the right way to think about it. [00:21:40] Speaker 04: I mean, there's briefing elsewhere in here about whether you take into account everybody's collective judgment about suspicion and maybe that also applies to collective authority to end the detention. [00:21:50] Speaker 04: I just don't know how this all plays out. [00:21:51] Speaker 04: I'm just asking you. [00:21:53] Speaker 04: Do you know the law on this, how this plays out in terms of a circumstance in which one person may or may not have their own authority to end the encounter? [00:22:02] Speaker 02: I don't specifically know in this context, but if the court wanted me to... [00:22:09] Speaker 02: So I was turning to sort of the constitutional question on reasonable suspicion. [00:22:14] Speaker 02: A couple of points that I want to make on that, which is that that is the only constitutional challenge that I see that's still before the court. [00:22:22] Speaker 02: I don't see an arrest and probable cause as being relevant anymore because in Mr. Fishman's brief, he doesn't make a challenge that the detention was necessarily too long and it converted into an arrest or that the use of handcuffs. [00:22:35] Speaker 02: So we are just talking about what is a very low standard, significantly less than preponderance of the evidence, whether or not the officers had reason to suspect that there was criminal activity. [00:22:48] Speaker 02: And I think that what dispatch reported to them was more than enough to meet that standard. [00:22:55] Speaker 02: We've touched on officer Tudoro for a moment. [00:22:58] Speaker 02: I just want to quickly make sure that that is clear that judgment against him on the Fourth Amendment claims. [00:23:04] Speaker 02: Mr. Fishman is not defending the district court's subjective test and rightly so it is an objective standard. [00:23:11] Speaker 02: And that on the common law aspect of it, Mr. Fishman has conceded that it was error to enter judgment there because it was just supposed to be against the District of Columbia. [00:23:23] Speaker 02: So at minimum, everything for him should be reversed. [00:23:29] Speaker 02: And we think also the summary judgment should be reversed for the officers as well. [00:23:33] Speaker 02: which brings me, unless the court has any questions on the fourth amendment to the common law claim, if the court reaches the constitutional question, that fully resolves the common law claim as well. [00:23:45] Speaker 02: If it is being decided on the second prong of qualified immunity, which is the clearly established prong, then the court would have to answer an additional question, which is a subjective good faith belief. [00:23:56] Speaker 02: And here, I think that there's more than enough evidence on this record that the officers had a subjective good faith belief that what they were doing was lawful, that they believed that they had reasonable suspicion. [00:24:08] Speaker 02: They said so in their deposition testimony. [00:24:11] Speaker 03: Didn't some of them, specifically Todaro, say they had reasonable suspicion of kidnapping? [00:24:17] Speaker 02: Sure. [00:24:17] Speaker 03: Not of anything else? [00:24:18] Speaker 02: Sure. [00:24:19] Speaker 02: And he believed that that suspicion remained throughout. [00:24:27] Speaker 02: And we detail in our reply brief why that is reasonable for him. [00:24:31] Speaker 02: He was at the front. [00:24:32] Speaker 03: Point being, he did not testify. [00:24:34] Speaker 03: He had a subjective belief based on child abuse. [00:24:39] Speaker 02: That's correct. [00:24:40] Speaker 02: And so what I'm saying is if you take a look at his involvement, this would be the one caveat on what I said earlier about kidnapping is that it makes sense that he still has reasonable suspicion for kidnapping. [00:24:53] Speaker 02: He was on the front stoop at the beginning. [00:24:56] Speaker 02: He hears the initial statements from the older daughter that my dad didn't do anything wrong. [00:25:01] Speaker 02: He didn't take her. [00:25:02] Speaker 02: And then that's it. [00:25:04] Speaker 02: He's not there for any of the rest of the conversations with Mrs. McCauley or the children. [00:25:09] Speaker 02: So he hasn't actually identified who these two adults are. [00:25:13] Speaker 02: He has identified who these children are. [00:25:15] Speaker 02: And so obviously in that context, he hasn't ruled out kidnapping. [00:25:18] Speaker 02: And that is clear in his deposition testimony that he believed that even if he was able to believe what the girls were saying and he didn't have reason to [00:25:26] Speaker 02: to think they were lying, he still had reasonable suspicion of kidnapping. [00:25:30] Speaker 02: And I would refer you to our reply brief where we kind of lay out in detail that timing. [00:25:35] Speaker 02: He has walked away from the stoop around 2 42. [00:25:38] Speaker 01: And you're resting on your colloquy with the chief judge as to why we have jurisdiction on the common law. [00:25:44] Speaker 01: That is a stretch. [00:25:46] Speaker 01: I mean, that is not the usual course we take. [00:25:49] Speaker 01: It's not an appeal will matter. [00:25:50] Speaker 01: And, you know, the first instate for a number of us is you go back and do whatever you have to do. [00:25:56] Speaker 01: You're trying to draw nuances in a way that an appellate court normally doesn't do. [00:26:00] Speaker 01: That's an issue that was not battled out in the district court. [00:26:04] Speaker 01: And if there's something to be said, it seems to me [00:26:07] Speaker 01: The correct instinct, as I read the law, is it's not something we fool around with. [00:26:12] Speaker 01: You're straining in an area where we do not have jurisdiction typically, and you're trying to use a pendant notion to get it here, which is not favored. [00:26:23] Speaker 01: It's not favored, right? [00:26:25] Speaker 01: There's no slew of case law saying, oh, sure, we'll just take that up because it's here. [00:26:29] Speaker 01: If we did that, that would change the whole body of law that we hear in the D.C. [00:26:34] Speaker 01: Circuit. [00:26:35] Speaker 01: That's not the way we do business. [00:26:36] Speaker 02: Sure. [00:26:37] Speaker 02: I understand that that is not the normal way in which this is done. [00:26:39] Speaker 02: And I fully acknowledge that this is sort of an exception. [00:26:44] Speaker 02: We cite cases in our briefing that put exactly sort of in this context, the interlocutory appeal and a common law claim that is [00:26:53] Speaker 02: the exact same elements and same factual record. [00:26:58] Speaker 02: But if the court is not comfortable doing that, then obviously a remand on the common law claims would be required. [00:27:04] Speaker 01: My one- Remand on something that's not here is the way I view it. [00:27:08] Speaker 01: That's the way I think about it as an appellate judge, not here. [00:27:10] Speaker 02: Sure, and maybe remand is not the right word. [00:27:12] Speaker 02: Maybe it's that you, because it is a discretionary exercise of jurisdiction, it would be that you decline it. [00:27:22] Speaker 02: My one caveat on that is that I would ask the court, given the concession that was made in Fishman's briefing, that this should not have been judgment against Officer Tudaro on [00:27:33] Speaker 02: the common law claim that if we could at least get that resolved based upon his concession, I think that that would be a great place to if this does have to go back to the district court to have it in that posture. [00:27:43] Speaker 02: There's no reason for the officers to be in a different context there. [00:27:47] Speaker 04: Can I just say one clarification on that's you have further on this traditional question. [00:27:52] Speaker 04: You're asking me, you're the chief. [00:27:54] Speaker 04: No, I just want to make sure you don't have a follow up on this. [00:27:56] Speaker 04: There's no question that's all because I was going to shift gears just a little bit which is [00:28:01] Speaker 04: So as I understood what you just said about Todaro, you're saying that he kept reasonable suspicion as to kidnapping for the duration of the stock. [00:28:09] Speaker 04: Yes. [00:28:10] Speaker 02: But earlier... It's the one exception is on the common law, not the Fourth Amendment claim. [00:28:18] Speaker 04: So did Todaro keep reasonable suspicion on the Fourth Amendment claim for the duration of the stock? [00:28:24] Speaker 02: So the only reason it's the exception on the common law is because you have to have a subjective. [00:28:29] Speaker 02: It's a subjective standard as opposed to the objective standard. [00:28:32] Speaker 02: Under the objective standard, you look at what the officers knew and determine what. [00:28:36] Speaker 02: And that would allow sort of the full range of what the officers knew. [00:28:42] Speaker 02: And so I don't think that we can walk away under the Fourth Amendment from what is learned by Officer Brady during his interviews with the mom and the children. [00:28:53] Speaker 02: And so that's the only reason I'm sort of carving that out as being somewhat different there. [00:28:58] Speaker 02: But the court doesn't really have to go there either, because I think, again, the test under the common law, like under the Fourth Amendment 4, the false arrest would allow for errors of judgment. [00:29:12] Speaker 02: And so even if he is wrong on the kidnapping and doesn't identify child abuse, he does still believe that his conduct is lawful, even if he has identified the wrong [00:29:23] Speaker 04: But that only means that to continue detention is to kidnapping alone. [00:29:33] Speaker 04: survives as to the state law claim as opposed to the federal claim? [00:29:37] Speaker 04: Is that the way you're seeing it? [00:29:38] Speaker 02: I see it as two options. [00:29:40] Speaker 02: I think it doesn't have to, but I think it can. [00:29:43] Speaker 02: And it's just that subjective test because it's there. [00:29:47] Speaker 02: If the court wanted to look only at his testimony, which is what Fishman has put before the court in the opposition, is just his testimony, then it was not unreasonable and there was no bad faith by him. [00:30:00] Speaker 02: I think when you look at the totality of it, it is, I think, child abuse kind of throughout for all of the officers. [00:30:10] Speaker 02: But not kidnapping. [00:30:11] Speaker 02: That's right. [00:30:12] Speaker 04: Including as to clearly established. [00:30:15] Speaker 02: For purposes of this appeal only. [00:30:16] Speaker 02: That's right. [00:30:17] Speaker 02: Okay. [00:30:18] Speaker 02: And I know I'm way over time. [00:30:20] Speaker 01: I'll give you a little time for my colleagues to make sure there's questions. [00:30:23] Speaker 01: Yeah, one list. [00:30:24] Speaker 01: I want to make sure I'm understanding how you're framing [00:30:28] Speaker 01: the disposal of the issue where you see the other side concedes, the other officers are effectively not liable. [00:30:35] Speaker 01: Are you saying we ought to take it on dependent jurisdiction and rule as a matter issuing a judgment on the merits, or are you saying it should be dismissed as move? [00:30:49] Speaker 02: On the common law claim as to the other officers? [00:30:52] Speaker 01: Yeah, well, they conceded. [00:30:54] Speaker 02: So as I understand, Mr. Fishman's brief and perhaps they'll correct me. [00:31:00] Speaker 01: Let's assume it's there. [00:31:02] Speaker 01: If it's wrong, he can argue it. [00:31:05] Speaker 01: I'm assuming they've effectively conceded. [00:31:07] Speaker 01: There was a mistake made by the district court. [00:31:10] Speaker 01: That's right. [00:31:10] Speaker 01: And so he's in an appellate court now saying that was a mistake. [00:31:14] Speaker 01: Is that moot? [00:31:16] Speaker 01: Or are you framing it as if you want a judgment on that point? [00:31:22] Speaker 02: So as to the officers except Todaro on the common law claim, I don't think you need to have judgment specifically. [00:31:30] Speaker 02: I think that he's effectively dismissed those claims. [00:31:34] Speaker 02: I would like to have that in an order that he's effectively dismissed those claims. [00:31:37] Speaker 01: All I'm asking is a simple question. [00:31:39] Speaker 01: How are you framing that disposition from our vantage point? [00:31:43] Speaker 01: What is it that we write? [00:31:45] Speaker 01: That's not here because it's what? [00:31:47] Speaker 02: it's been dismissed, voluntarily dismissed by Mr. Fishman. [00:31:51] Speaker 02: I don't think that it's moved. [00:31:52] Speaker 02: I think that he has elected not to pursue those. [00:31:54] Speaker 04: Okay. [00:31:56] Speaker 04: Okay, we'll give you a little time for rebuttal. [00:31:57] Speaker 04: Thank you. [00:31:58] Speaker 00: Mr. Gerstein. [00:32:06] Speaker 00: Thank you, your honor. [00:32:07] Speaker 00: Good morning, Mr. Chief Judge. [00:32:08] Speaker 00: May it please the court. [00:32:10] Speaker 00: That's about right. [00:32:12] Speaker 00: I'd like to begin with the facts below, because I think this is crucial both to the issue of forfeiture and to the issue of qualified immunity on reasonable suspicion for any crime. [00:32:21] Speaker 00: Crucially lacking from the facts, which are required to be presented in statements of undisputed material fact, which the court can find at joint appendix 291 to 96 and 229 to 37. [00:32:32] Speaker 00: Crucially lacking from this, is any facts sufficient to give rise to any kind of reasonable belief that there was a serious risk of harm? [00:32:39] Speaker 00: And I believe counsel was arguing towards the end of her presentation that the investigation needed to continue as to what she described as child abuse, because this takes a while. [00:32:51] Speaker 00: It's not appropriate to settle on a Terry stop. [00:32:53] Speaker 00: It needs to be conducted by child protective services. [00:32:56] Speaker 00: And I want to draw the court's attention to one crucial distinction. [00:32:59] Speaker 00: There's a difference between what we're calling in this court today child abuse and the crime of second degree cruelty to children. [00:33:05] Speaker 00: It's obvious that the District of Columbia believed that it had suspicion sufficient to give rise to an investigation by the youth division of neglect or abuse from the family court system, which would result in interventions like [00:33:18] Speaker 00: uh, parenting classes or, God forbid, separation of the children. [00:33:22] Speaker 00: The district correctly concluded that there was insufficient evidence that that was not grounded. [00:33:26] Speaker 00: But that's different than the question whether Mr. Fishman committed a crime. [00:33:30] Speaker 00: And below, in the statement of undisputed material facts, we see nothing but kidnapping, suspicion of kidnapping. [00:33:36] Speaker 00: Seven times at Tedaro's deposition, he concedes that he had reasonable suspicion of no other crime. [00:33:41] Speaker 00: In his statement of material facts, he mentions no other crime. [00:33:44] Speaker 00: In the other defendant's statements of material facts, which are again at 229 to 37, [00:33:48] Speaker 00: we see the statement, reasonable suspicion of kidnapping existed throughout the stop. [00:33:53] Speaker 03: But as you yourself pointed out, that's a legal conclusion. [00:33:56] Speaker 03: So what they need to have in the facts are the facts. [00:33:58] Speaker 03: And the facts statement does say, among other things, that it describes the call, the 911 call, and describes someone throwing a child over their shoulder and then throwing them into a car. [00:34:13] Speaker 03: widely varying interpretations of those words that someone could take, but why isn't one interpretation of those words pick up, throw into a car that officers ought to be inspecting a little bit more closely for harm to the child? [00:34:31] Speaker 00: So I think, again, considering the totality of the circumstances, and again, the part of the confusion here is that this legal argument was not presented below, which is that those specific facts give rise to reasonable suspicion of the crime. [00:34:43] Speaker 00: And I'd like to distinguish between two categories of belief that an officer would have. [00:34:47] Speaker 00: There's the question presented by counsel in her presentation whether an officer on the scene needs to be able to cite to something in a statute book and say that's the crime that you committed. [00:34:56] Speaker 00: There's no question that that's not required. [00:34:58] Speaker 00: There's a different question whether an officer in court represented by counsel in his briefing needs to present an explanation of what crime he thinks that the defendant committed. [00:35:07] Speaker 00: And here, although we say they copy out a recording of the 911 call, they don't allege that any of the officers heard it, which they did not. [00:35:15] Speaker 00: They don't allege how it was, or excuse me when I say allege, they don't present facts to support that any of the officers heard it. [00:35:22] Speaker 00: They don't present facts of what exactly it is they heard about that call. [00:35:26] Speaker 00: And all of them testified that they believed that they were there to investigate a kidnapping. [00:35:30] Speaker 00: Todaro conceded that he wasn't there to investigate nothing else. [00:35:34] Speaker 00: Todaro similarly conceded that at the moment he arrived, he subjectively knew, as any officer would, that the two children there were Fishman's, the woman was their mother, and that Fishman had not concealed them from their mother because the door was open. [00:35:46] Speaker 00: And they both arrived, called him daddy. [00:35:49] Speaker 00: She called him daddy to them. [00:35:51] Speaker 00: One of them said he did nothing. [00:35:54] Speaker 03: What I view as sort of the strongest preservation on their argument, on their side, has little to do with the statement of undisputed facts and more about the argument in their motion for summary judgment, which on JA308, [00:36:10] Speaker 03: talks for an entire page about kidnapping not being the only crime. [00:36:14] Speaker 03: And then it does refer to child abuse. [00:36:16] Speaker 03: But then the next page cites the statute on cruelty to children. [00:36:21] Speaker 03: And the strong version of their argument might be that's clearly preserving the legal argument in the motion. [00:36:29] Speaker 03: And then there might be a separate argument about whether the statement of facts was sufficient to support that, which, as I think some of the questions suggest, is not the kind of thing that we typically [00:36:41] Speaker 03: rifle through in the first instance, and that just focusing on this, it's hard to say it's forfeited, this entire theory about child abuse. [00:36:50] Speaker 03: So can you respond to that, specifically respond to J308 and 309 and why that doesn't preserve the argument? [00:36:58] Speaker 00: And I think, as I hope we made clear in our briefing, that is because of the lack of factual support for those allegations. [00:37:04] Speaker 00: I remained puzzled, rifling through the briefing, both on appeal and below, as to what specific facts they contend support reasonable suspicion of the crime of second degree cruelty to children or assault. [00:37:15] Speaker 00: And to go to the chief judge's question, to my friend on the other side, [00:37:20] Speaker 00: I don't believe below anyone contended that the following act gives rise to any kind of reasonable suspicion of a crime. [00:37:28] Speaker 00: Taking one's own child who is on the street, uncontrolled, putting the child over one's shoulder, and putting the child in a car. [00:37:35] Speaker 00: That I think we all concede, or my colleague concedes, is not a crime. [00:37:39] Speaker 00: And that the officers didn't believe it to be a crime, would not reasonably have believed it to be a crime, and qualified immunity would not protect their conclusion that it was a crime. [00:37:47] Speaker 00: And so below what we lacked into Judge Garcia's question, I think what was lacking in that presentation on page 308 and 309 of the Joint Appendix is the connection to facts. [00:37:57] Speaker 00: Rule 7H, as this court says time and again, does not require the district court to be, as then Chief Judge Tatel put it, like a truffle pig. [00:38:06] Speaker 00: looking through the records for facts in support of a legal argument, saying merely, well, they could have suspected these other crimes, but not saying what it was that they suspected them for, and what facts supported that as insufficient to preserve the argument for this court. [00:38:20] Speaker 00: And that's the argument we're attempting to make in our brief. [00:38:22] Speaker 00: But at a higher level of generality, all of the officers testified to, and particularly to Darrow, that they received a call for kidnapping, [00:38:32] Speaker 00: And the alleged fact pattern of the kidnapping, again, we don't have exact what detail from the 911 call makes it into the officer's minds. [00:38:40] Speaker 00: And that is, I think, crucially important for this court's consideration. [00:38:43] Speaker 00: But even assuming that call comes through, we have a call that calls the 911 operator to ask, that's it, effectively? [00:38:50] Speaker 00: There's not much we can do with that. [00:38:53] Speaker 00: And to say, OK, well, we'll send somebody out for kidnapping. [00:38:57] Speaker 00: The call goes out for kidnapping. [00:38:59] Speaker 00: And at least as to Todaro, [00:39:01] Speaker 00: And I think there will, at the very least, be a factual dispute as to the other officers. [00:39:06] Speaker 00: He knows the family relationship between all of the parties. [00:39:10] Speaker 00: And he knows that there's no reasonable suspicion of kidnapping, which helpfully, my colleague concedes, there was not reasonable suspicion for kidnapping dissipated. [00:39:18] Speaker 00: And the only argument on appeal now is that other crimes may have supported reasonable suspicion for the continued detention. [00:39:25] Speaker 00: Did the chief judge have a question? [00:39:28] Speaker 00: I'm sorry. [00:39:30] Speaker 00: Briefly, as to the common law claim, we did not contest that the court could if it wanted to exercise discretionary pending jurisdiction over that claim. [00:39:41] Speaker 00: And we did indeed concede below that we dismissed the claims as to the individual officers under D.C. [00:39:48] Speaker 00: law. [00:39:49] Speaker 00: Under the D.C. [00:39:49] Speaker 00: Tort Claims Act, they're immune from those claims when the district stands as respondeat superior for them. [00:39:55] Speaker 00: And so we did indeed concede that. [00:39:57] Speaker 00: I don't take a position here whether the court should exercise discretionary jurisdiction, but we didn't oppose it. [00:40:02] Speaker 00: And just to clarify the point in our brief, that counsel contends violates the cross-appeal rule. [00:40:10] Speaker 00: Merely the point that we were trying to make is, given that the facts on this claim were undisputed below, the conclusion that judgment should issue against the district, it should not issue against Adara, but the district, because of the error and who the party is, this court could just indicate that, but does not need to issue a judgment as to it. [00:40:29] Speaker 04: Can I ask you about the cruelty to children idea? [00:40:32] Speaker 04: So that is a crime. [00:40:37] Speaker 04: And if what the officers have is [00:40:40] Speaker 04: report that somebody threw a child into a car. [00:40:46] Speaker 04: Is there reasonable suspicion of cruelty to children? [00:40:49] Speaker 00: Given that bare factual allegation, no, Your Honor, because again, in any common usage, I don't think anyone uses the term throw a child in a car to mean [00:40:59] Speaker 00: detach the child from your hand into the air, into the car. [00:41:03] Speaker 00: The understanding here in this 911 call was Mr. Fishman put his child in the car. [00:41:07] Speaker 04: It seems to me that the very fact that somebody would take the time to call, and I think you're right that colloquially a lot of times parents describe their own conduct as to their kids as saying, I had to throw you in the car. [00:41:17] Speaker 04: They tell somebody else without even contemplating that it would abuse. [00:41:21] Speaker 04: But the fact that somebody makes a call, [00:41:23] Speaker 04: and says, hey, I just saw somebody throw a kid into a car. [00:41:26] Speaker 04: I mean, you got to assume that that's not happening every time they see somebody take their child and put them in a car. [00:41:31] Speaker 00: Perhaps. [00:41:32] Speaker 00: But also, that caller thought that she had witnessed a kidnapping. [00:41:37] Speaker 00: which he had not right as soon as that was getting we conceded that reasonable suspicion existed to stop Mister Fishman for kidnapping at the beginning of this interaction right as officer Jaeger comes up to find the college thought just a bunch of stuff that raised enough of a suspicion that they felt like they needed to make a call which is is which is something and yes some of it was. [00:42:00] Speaker 04: It's kidnapping, but some of it also was the nature of the way in which the child was put in the car. [00:42:07] Speaker 04: And the question becomes, suppose this happens. [00:42:11] Speaker 04: Suppose a caller calls the emergency line and says, I just saw a dad throw their kid into a car in a way that no dad should throw a kid. [00:42:24] Speaker 04: It was just beyond anything I've seen. [00:42:26] Speaker 04: Would that be reasonable suspicion of cruelty? [00:42:30] Speaker 00: Yes, I think so on those facts. [00:42:32] Speaker 00: And again, that's crucially distinguished from the facts that we have here, which is a 911 caller, at least as presented to the officers. [00:42:39] Speaker 00: And again, this I do think is a crucial distinction. [00:42:41] Speaker 00: The officers arrived to respond to a call for kidnapping. [00:42:44] Speaker 00: And this court should consider, and the court below considered, what they knew at the time, the facts that they knew at the time. [00:42:48] Speaker 00: And that, to Judge Garcia's earlier question, is why I'm so focused on the statement of material facts. [00:42:53] Speaker 00: This court is meant to assess what they knew as a factual matter at the time that they continued to tame Mr. Fishman for 25 minutes. [00:43:00] Speaker 00: And there's no evidence of anything like that. [00:43:02] Speaker 00: They got a call for kidnapping. [00:43:03] Speaker 00: The radio runs as Kidnapping Unknown, and that's to distinguish it from Kidnapping Parental, which is a non-custodial parent. [00:43:10] Speaker 03: It's also included in the statement of material facts are citations to the page of Yeager's deposition testimony, which, again, is not a transcript, but he does say, when I was dispatched, I was told that a child was thrown into a car. [00:43:25] Speaker 03: right, and that's the whole basis of their argument. [00:43:28] Speaker 03: Maybe it's sufficient, maybe it's not, but to say it's not in the statement of facts. [00:43:33] Speaker 00: That is de Jager's belief, yes. [00:43:34] Speaker 00: Tedaro testified that he, this is at page 231. [00:43:38] Speaker 00: I don't think he did. [00:43:40] Speaker 00: At 231, he testified, or at 231, he is reported as saying to [00:43:47] Speaker 00: If I've got this page wrong, I'm very sorry. [00:43:48] Speaker 00: But at 231, he is reported as saying to McCauley, we got a call that a guy put a kid in a car. [00:43:57] Speaker 01: I thought the caller said, I don't know if it was an abduction or a father man handling his child in a really bad way. [00:44:05] Speaker 01: That's not just kidnapping. [00:44:07] Speaker 00: And that call was not presented to the officers. [00:44:10] Speaker 00: And what the officers received was a call for kidnapping. [00:44:16] Speaker 00: That call happened. [00:44:17] Speaker 00: You're just saying it's only the lieutenant that heard that. [00:44:19] Speaker 00: Correct. [00:44:20] Speaker 00: And the first time we see any allegation that Lieutenant Loftus remained in command of the scene or was in command of the scene at all such that his knowledge is imputed to the officers is in the appellant's reply brief below. [00:44:32] Speaker 00: There's no evidence that [00:44:34] Speaker 00: Lieutenant off just was in command of the scene. [00:44:36] Speaker 00: He made one phone call to the scene, the scene at Fishman's House. [00:44:39] Speaker 00: He was on Wisconsin Avenue. [00:44:41] Speaker 00: He made one call in which he asked for information. [00:44:44] Speaker 00: He quickly received a little bit saying that there was a suspect in handcuffs and then he hung up the phone and drove [00:44:50] Speaker 00: to Fishman's house. [00:44:51] Speaker 00: There's no other evidence that he was in command. [00:44:53] Speaker 00: And so I think the appellants portrayed as uncontroversial, that collective knowledge can be imputed from a commander to a non-commanding officer, which is true. [00:45:01] Speaker 00: There's just no evidence that that was the case here. [00:45:03] Speaker 04: So putting aside Loftus for a second, because he got the extra information that the caller thought, even if it wasn't a kidnapping, it was still [00:45:13] Speaker 04: conduct as by a parent that raises serious questions. [00:45:17] Speaker 04: But for Jaeger, who knew that there was a, or who had understood that the child had been thrown, if that were, if Todaro were thought to have been aware of that characterization, then [00:45:34] Speaker 04: What is your argument about reasonable suspicion vis-a-vis Tedar? [00:45:38] Speaker 00: Again, I think we're lacking from any of these allegations serious risk of harm, as is required by District of Columbia law. [00:45:43] Speaker 00: That might raise reasonable suspicion for purposes of a family investigation, which is exactly what took place after the terrorist stopped. [00:45:50] Speaker 00: But again, absent from any of these allegations is the kind of detail about serious risk of harm. [00:45:56] Speaker 00: We have simply, I got a call that a guy threw a kid in a car. [00:46:00] Speaker 00: And I think that, standing alone, it would be a remarkable proposition to say that that is a crime for one to do to one's own parent. [00:46:06] Speaker 00: And I think the chief judge's question about a hypothetical call in which someone said, a dad threw a kid in a car in a way that a dad never should, which is clearly wrong, is distinguished from that bare information that was given to you. [00:46:20] Speaker 04: So a report of throwing a dad throwing a kid in a car will just stipulate that it's a dad. [00:46:26] Speaker 04: Dad throwing a kid in a car and a person making a 911 call about it isn't enough in your mind to raise reasonable suspicion of a crime. [00:46:34] Speaker 00: I think on those bare facts, yes, with one crucial distinction that I think here, just to make sure I'm understanding the question correctly, here, the call was for a kidnap. [00:46:42] Speaker 00: It wasn't simply- I understand that. [00:46:44] Speaker 00: Yeah. [00:46:44] Speaker 00: And so there is usually associated with a call and accusation, right? [00:46:49] Speaker 00: And again, it doesn't need to be a statutory accusation, but we're imagining a call in which someone just barely calls, picks up the phone, says, Diamond Run, what did you just see? [00:46:57] Speaker 00: Says, I saw a dad throw a kid in a car. [00:47:00] Speaker 00: I don't think that states a claim for reasonable suspicion. [00:47:02] Speaker 00: I didn't see any argument to that below. [00:47:03] Speaker 00: All of the citations to cases about the crime of second degree cruelty to children and assault as committed by a parent against a child were vastly distinguishable from that circumstance, as we point out in our brief. [00:47:19] Speaker 04: My colleagues don't have additional questions. [00:47:22] Speaker 04: Any further questions? [00:47:23] Speaker 04: Thank you, Your Honor. [00:47:24] Speaker 04: Thank you, counsel. [00:47:28] Speaker 02: I want to start with it is clear that dispatch reported kidnapping and that a child had been grabbed, thrown over her shoulder and thrown into the car. [00:47:47] Speaker 02: That is from officer Yeager as well as Todaro. [00:47:49] Speaker 02: He heard that as well, the throw into the car. [00:47:53] Speaker 02: And what you heard from counsel was that throwing a child into the car, he doesn't believe that that's enough for reasonable suspicion. [00:48:02] Speaker 02: I disagree, but this is where the second pronged qualified immunity comes in. [00:48:07] Speaker 02: Where's the case that says that officers do not have reasonable suspicion of child cruelty in that circumstance or any circumstance similar to that? [00:48:17] Speaker 02: Instead, what I heard more was, [00:48:19] Speaker 02: kind of an adjudication of guilt, reasonable suspicion is significantly lower than that. [00:48:25] Speaker 02: And we also have the information that Lieutenant Loftus has. [00:48:28] Speaker 02: He got much more damning information from the 911 caller. [00:48:32] Speaker 02: And contrary to what counsel said, that was raised below. [00:48:35] Speaker 02: He was referred to as a senior officer who was in charge in the briefing below, and he was clearly in charge here. [00:48:41] Speaker 02: We see that around 3.05 PM when he is the one who stops, stop. [00:48:46] Speaker 01: Yeah, but what is it that you think [00:48:50] Speaker 01: We should look to buy your argument that the officers were acting on suspicion of more than just kidnapping. [00:48:58] Speaker 02: Sure, I think you can take a look directly at the body worn camera footage where the officers themselves say kind of throughout that 25 minutes that their goal is to talk to the younger child because they need to see if she was harmed. [00:49:12] Speaker 02: And you hear Lieutenant Loftus say that when he arrives at O Street saying this stop continues. [00:49:18] Speaker 02: And in fact, he also didn't discontinue the stop when he called it to O Street. [00:49:22] Speaker 02: You hear Sergeant Bray say that, you hear Officer Brady say that repeatedly. [00:49:26] Speaker 02: that they all knew that because the call had been throwing a child into the car, and that's something Officer Bray says explicitly to Mr. Fishman right around 3.02 to 3.05 p.m., that that is why they needed to make sure they spoke to that younger daughter who was the alleged victim. [00:49:44] Speaker 03: Is what you just said in the statement of material facts? [00:49:49] Speaker 02: that they needed to talk. [00:49:51] Speaker 02: I would have to double check. [00:49:53] Speaker 02: I don't recall that specifically. [00:49:54] Speaker 03: Basically, the whole narrative, any facts supporting the idea that they were there on reasonable suspicion of something other than kidnapping? [00:50:02] Speaker 02: Certainly, the facts laid out below did include that they needed to talk to the child. [00:50:10] Speaker 02: I don't know if it's so clear that as to saying that it was for child abuse specifically, [00:50:16] Speaker 02: beyond what said JA 308 and 309 as you pointed out. [00:50:22] Speaker 02: But I don't think that that matters, right? [00:50:25] Speaker 02: The facts here are not under dispute that this is how sort of the stop transpired with Lieutenant Loftus making sure that the child had been spoken to. [00:50:37] Speaker 02: Although Officer Brady also [00:50:39] Speaker 02: knew that that was that was his goal here. [00:50:42] Speaker 04: Somebody asked whether that when speaking to the younger child whether it was gentle. [00:50:47] Speaker 04: Am I remembering right? [00:50:48] Speaker 04: Whether the toss was [00:50:50] Speaker 02: So Officer Brady, when he was speaking to the child, and that's at the very end of the stop, he asks a number of questions to try to get to, how did your dad put you into the car? [00:51:01] Speaker 02: Because what we heard from counsel was that somehow the call was that he was placed or she was placed into the car. [00:51:10] Speaker 02: That wasn't what it was. [00:51:11] Speaker 02: It was thrown into the car. [00:51:12] Speaker 02: So he's exploring with the child what that means, as well as how did he grab her? [00:51:17] Speaker 02: I think there's reference to it. [00:51:18] Speaker 02: Was it a bear hug? [00:51:19] Speaker 02: We're all kind of accustomed to seeing that sometimes when a child is out of control and also just, you know, was she OK? [00:51:26] Speaker 02: So that's where we get to sort of the elements of cruelty to children and assault. [00:51:33] Speaker 02: And so. [00:51:35] Speaker 02: But to go back to the point I was trying to make, which was what's key here is there is no case that puts what the officers did here when there's a report of a child being thrown into the car as being clearly established as being a violation of the Fourth Amendment. [00:51:52] Speaker 02: And I think that that really is the game here. [00:51:55] Speaker 01: There is plenty of case law explaining reasonable suspicion and what you need to be able to hold something for 25 minutes. [00:52:03] Speaker 02: Sure. [00:52:03] Speaker 01: I mean, the notion that the Supreme Court is meant to say, I realize the rules are stricter, but it's meant to say that if you can't find the exact case, that's the end of the discussion, that's not correct. [00:52:13] Speaker 02: Well, I think Wesby stressed pretty strongly that a case is required for most cases. [00:52:20] Speaker 02: It is only the rare case that it isn't required. [00:52:22] Speaker 02: And I will point out, you've heard from counsel that had the call or had the officers been told that the child had been manhandled in a bad way and thrown into the car, that that would have been enough for reasonable suspicion. [00:52:34] Speaker 02: Well, that's exactly what Lieutenant Loftus was told by the 911 caller. [00:52:38] Speaker 02: So that's also that sort of concedes the constitutional point before we even get to to the second prong. [00:52:44] Speaker 02: And so I think on this record, it's sort of unquestionable. [00:52:48] Speaker 02: There was reasonable suspicion throughout. [00:52:49] Speaker 02: But even if there there was not, there is no clearly established precedent that would have told the officers that maintaining this stop long enough to talk to the younger child to verify that she was OK. [00:53:02] Speaker 02: is constitutional error certainly is not clearly established as being unconstitutional. [00:53:07] Speaker 02: My last point I want to make is [00:53:11] Speaker 02: is that there's been some discussion of various forfeiture things here and whether or not the court should resolve this. [00:53:19] Speaker 02: I encourage the court to resolve the Fourth Amendment claims. [00:53:22] Speaker 02: It is fully briefed here. [00:53:24] Speaker 02: I don't believe that there is a forfeiture. [00:53:27] Speaker 02: As Judge Garcia pointed out, these things were raised in the briefing below. [00:53:32] Speaker 02: And I think that it would be pretty inefficient to send this back to the district court on the Fourth Amendment claims. [00:53:38] Speaker 02: And with that, unless there's additional questions, [00:53:41] Speaker 02: I ask that the court reverse the district court. [00:53:44] Speaker 01: Let me just, I want to pull one little point with you. [00:53:47] Speaker 01: Suppose the situation was police officer parked on the street or standing on the street somewhere and the father is driving, daughter's in the back of the car, and as they get near the officer, the little girl opens the window and screams out, [00:54:08] Speaker 01: And she's crying, screams out, I'm being kidnapped. [00:54:12] Speaker 01: Can the officer stop, handcuff, and hold him for 25 minutes once he finds out the relationship, father, daughter, on that? [00:54:22] Speaker 02: So I'm going to put aside the 25 minutes just for a moment. [00:54:25] Speaker 02: Absolutely, I believe that hearing a child scream, I've been kidnapped, would warrant officers to stop. [00:54:31] Speaker 01: And I think everyone- On child abuse. [00:54:33] Speaker 02: I think to stop on kidnapping. [00:54:36] Speaker 02: And maybe I need to declare. [00:54:37] Speaker 01: And let's say this is a father who had all the materials right there in front of all the court papers. [00:54:43] Speaker 01: This is my daughter officer. [00:54:44] Speaker 01: Here's the picture. [00:54:45] Speaker 01: Here's the family picture. [00:54:46] Speaker 01: Here's the registration. [00:54:48] Speaker 01: It's my daughter. [00:54:49] Speaker 01: Now the officer can proceed. [00:54:51] Speaker 01: Well, there could be some child abuse here because of what? [00:54:56] Speaker 01: And what are you saying about that? [00:54:59] Speaker 02: On that particular fact pattern, you don't have, I think, a specific allegation that would warrant further investigation into child abuse. [00:55:06] Speaker 02: Here, we absolutely do. [00:55:08] Speaker 02: But here, we absolutely do. [00:55:10] Speaker 02: Here, we have a 911 caller who's presenting this in the alternative, kidnapping or child abuse. [00:55:16] Speaker 01: I mean, you have someone calling anonymously saying it's kidnapping, so you can get that out of the way even faster. [00:55:23] Speaker 01: Here, you're looking at the situation. [00:55:26] Speaker 01: I'm not understanding. [00:55:30] Speaker 01: Your your suggestion that unless I can find a precise case on point, it doesn't have to be precise. [00:55:38] Speaker 01: Absolutely does not have to be precise capes on point. [00:55:41] Speaker 01: But there needs to be a case. [00:55:43] Speaker 01: Once the father within five seconds makes it clear this is my daughter. [00:55:48] Speaker 01: And there's nothing else that that can be turned into reasonable suspicion for child abuse. [00:55:56] Speaker 02: that you think it can be? [00:55:57] Speaker 01: Can be? [00:55:58] Speaker 02: No, no. [00:55:59] Speaker 01: What I'm saying is... Because she yelled out the window? [00:56:01] Speaker 01: No, you said, yes, it could be. [00:56:04] Speaker 02: No, I said that it would be... You could stop for kidnapping. [00:56:09] Speaker 02: I don't think that's child abuse. [00:56:10] Speaker 02: I didn't hear a fact. [00:56:11] Speaker 02: It can't be... Okay. [00:56:12] Speaker 02: But that's what's different here. [00:56:14] Speaker 02: We have a 911 caller who has presented this in the alternative. [00:56:17] Speaker 02: It's kidnapping or child abuse. [00:56:19] Speaker 01: Or? [00:56:20] Speaker 01: Or. [00:56:20] Speaker 01: Who should say that? [00:56:21] Speaker 02: The the 911 caller makes it abundantly clear if he's the father and it's not kidnapping, then it's child abuse. [00:56:27] Speaker 02: The officers have the facts. [00:56:29] Speaker 02: The officers have the facts that a child was thrown into a car. [00:56:32] Speaker 02: That's different. [00:56:33] Speaker 02: Had the child who who yelled out the window in your hypothetical yelled out the window, my father threw me or no, I'm sorry. [00:56:40] Speaker 02: He threw me into the car. [00:56:42] Speaker 02: I'm being kidnapped. [00:56:44] Speaker 02: I think once learning that it's the father alone, they are perfectly within their right to ask additional questions to see if this child had been harmed because of the violence of throwing. [00:56:56] Speaker 02: And I think that that's what we would expect. [00:56:58] Speaker 02: I think it would be a really bad police work if they get a 911 call that a child has been thrown into the car and they walk away without exploring what that means and was this child harmed. [00:57:14] Speaker 04: Thank you, counsel. [00:57:16] Speaker 04: Thank you to both counsel. [00:57:17] Speaker 04: We'll take this case under submission.