[00:00:00] Speaker 01: Good morning. [00:00:01] Speaker 01: May it please the court. [00:00:02] Speaker 01: I'm Stefan Love, and I'm here on behalf of Alameda County and two of its sheriff's deputies. [00:00:07] Speaker 02: Would you like to reserve any time for rebuttal? [00:00:09] Speaker 01: Yes, Your Honor. [00:00:10] Speaker 01: I'd like to reserve about three minutes for rebuttal. [00:00:12] Speaker 02: And then just watch the clock because the 15 minutes includes your rebuttal time. [00:00:19] Speaker 01: There are two fundamental procedural errors, each of which requires reversal of the judgment below. [00:00:26] Speaker 01: The first concerns qualified immunity. [00:00:29] Speaker 01: The district court asked the jury to decide a question of law. [00:00:33] Speaker 01: The contours of clearly established law as relevant to this case. [00:00:38] Speaker 01: That was a highly prejudicial error. [00:00:39] Speaker 01: It precluded defendants from making a number of viable qualified immunity defenses, and it requires a new trial of all claims. [00:00:47] Speaker 01: The second procedural error concerns due process. [00:00:51] Speaker 01: There was a total absence of due process protections. [00:00:54] Speaker 02: Just on going back to the first issue, I just want to put a finer point on it. [00:00:59] Speaker 02: There's claims against Officer Holland and then the claim, there was only one claim against Officer Pope. [00:01:07] Speaker 02: for the search of the passengers that went to the jury, is that correct? [00:01:11] Speaker 02: Yes. [00:01:12] Speaker 02: And I believe that district court essentially ruled on summary judgment, the qualifying immunity step one analysis, finding that there was the search violated the fourth amendment, the officer Pope's search. [00:01:26] Speaker 02: for the passenger's identifications violated the Fourth Amendment. [00:01:30] Speaker 02: I don't see anything in your appellate briefing that challenges that, essentially, step one determination by the district court. [00:01:38] Speaker 02: And the district court presented only the step two question to the jury. [00:01:42] Speaker 02: Is that correct? [00:01:43] Speaker 01: That's correct. [00:01:44] Speaker 01: And it's also that step two question that this court's binding precedent in Morales v. Fry requires to be decided by a court, not a jury. [00:01:52] Speaker 04: What's interesting here is [00:01:55] Speaker 04: Whether or not, at least from my perspective, whether or not the error here was harmless, at least with respect to the verdict on liability for the constitutional violations. [00:02:12] Speaker 04: The way this whole issue about qualified immunity came up, it was more like an affirmative defense that he let go to the jury, which was, under our case law, looks like that was not the right thing to do. [00:02:27] Speaker 04: But how does that, how did that prejudice you? [00:02:31] Speaker 04: I mean, you don't challenge the instructions on the merits. [00:02:35] Speaker 04: Was there a constitutional violation? [00:02:39] Speaker 04: The jury said yes. [00:02:41] Speaker 04: And then your response is, well, we're entitled to immunity. [00:02:44] Speaker 04: But how did that prejudice anybody? [00:02:47] Speaker 04: I mean, the plaintiffs prevailed. [00:02:49] Speaker 04: Morales was a little bit different in Morales. [00:02:53] Speaker 01: The court never considered the question whether deputies' acts violated. [00:02:58] Speaker 04: Yeah, I understand. [00:02:59] Speaker 04: But I guess let me take this one step further. [00:03:02] Speaker 04: Why wouldn't it be proper just to remand the qualified immunity question back to the district court and tell the district court, look, now you've heard all the evidence. [00:03:13] Speaker 04: Now you've got to decide the qualified immunity issue. [00:03:17] Speaker 04: Are these officers? [00:03:18] Speaker 04: Did they act reasonably under the circumstances or whatever? [00:03:22] Speaker 04: Because that's a different inquiry than whether or not there's a constitutional violation. [00:03:27] Speaker 01: The problem with that approach is that there are factual disputes relevant to qualified immunity. [00:03:33] Speaker 04: Well, but the jury heard all the evidence, found a constitutional violation. [00:03:39] Speaker 04: And now when you look at that, you can easily resolve all factual disputes in favor of the plaintiffs, because that's what the jury did. [00:03:48] Speaker 04: They found a constitutional violation. [00:03:51] Speaker 04: And that's what happened in Morales. [00:03:52] Speaker 04: If you read Morales carefully, when you get to the second part of Morales, that's what the court did. [00:03:59] Speaker 01: The problem is there was a general verdict under Section 1983 against Deputy Holland. [00:04:05] Speaker 01: And that verdict could have rested on any of four different constitutional theories. [00:04:10] Speaker 02: So we do have case law that says when the jury issues a general verdict, whether there was a violation, we just resolve all factual disputes in favor of the plaintiffs. [00:04:21] Speaker 02: And the district court can then decide the qualifying immunity issues by resolving all the factual disputes that way. [00:04:29] Speaker 02: So they are allowed to use a general verdict for the step one analysis. [00:04:33] Speaker 02: So I understand your argument would be essentially, well, this is different because they didn't have [00:04:39] Speaker 02: The general verdict should have at least identified which violations occurred. [00:04:42] Speaker 02: Is that your argument? [00:04:44] Speaker 01: Yes, basically there are underlying factual disputes that make it impossible for the district court to properly resolve. [00:04:52] Speaker 02: And do we have any case? [00:04:53] Speaker 02: Do you have any case law to suggest that what happened here, which was the general verdict, just that violations occurred is not enough to then trigger what Judge Pius is asking where the district court can then just resolve all the factual disputes in the favor of the plaintiffs. [00:05:07] Speaker 01: We do have that case law. [00:05:09] Speaker 01: I want to pick one qualified immunity defense that was available. [00:05:13] Speaker 01: And this concerns the disabled placard plaintiffs admitted in post trial briefing. [00:05:19] Speaker 01: There's it's not clearly established that a police officer needs reasonable suspicion to initially detain someone to investigate their disabled placard. [00:05:29] Speaker 01: So plaintiffs admitted, at least in principle, that qualified immunity defense is right on the law. [00:05:35] Speaker 01: There's no case law making that conduct unlawful. [00:05:39] Speaker 01: The jury here never found either way whether a reasonable officer could have initiated this detention in part to investigate the disabled. [00:05:48] Speaker 04: Well, if there was a factual dispute about whether the officer saw the placard, because we do know that it was hanging, [00:05:59] Speaker 04: It looks like they found a constitutional violation. [00:06:02] Speaker 04: You would just assume that they've made that factual finding in favor of the plaintiffs. [00:06:09] Speaker 01: I don't agree. [00:06:10] Speaker 01: I think the jury— Let me ask you this. [00:06:15] Speaker 04: Did you ever submit a set of interrogatory questions to the judge to say, hey, look, give these questions to the jury so we know exactly what's critical? [00:06:25] Speaker 01: No, Your Honor, and that's because the defense had actually proposed that exact course of action partway through trial. [00:06:31] Speaker 01: The defense counsel had asked the judge, the way this is usually decided is you give the jury the relevant factual questions, narrowed to factual disputes such as the disabled placard. [00:06:43] Speaker 01: And then, based on the answers to those interrogatories, the court decides the issue. [00:06:50] Speaker 02: But in our cases, we say that it's permissive to do the special interrogatories and that it is also permissive for the court to just give the jury, allow the jury to just issue a general verdict on this step one question. [00:07:05] Speaker 01: Our argument is not that it's impermissible to get a general verdict on this step one question. [00:07:11] Speaker 01: Our argument is, again, stick with this disabled placard example. [00:07:16] Speaker 01: On the facts here, a reasonable officer could have believed this initial detention was lawful to investigate the disabled placard. [00:07:25] Speaker 01: There's no case law suggesting it's clearly unlawful. [00:07:29] Speaker 01: Moreover, there is evidence on the defense side that, and it's pretty good evidence, that the deputies in part initiated this encounter to investigate that disabled placard. [00:07:40] Speaker 04: Finally, the jury verdict, absolutely... Is your argument that you would have been entitled to qualified immunity for the whole detention? [00:07:49] Speaker 01: Uh, not necessarily, Your Honor. [00:07:51] Speaker 04: Because, you know, you look at, you know, these cases are interesting because you go step by step, usually. [00:07:57] Speaker 04: You know, so maybe, uh, they could have, you know, started their investigation, but then, uh, did they need reasonable suspicion to search the car? [00:08:12] Speaker 04: The problem is they need probable cause to, when they put him in the, in the separate vehicles and handcuffs, [00:08:19] Speaker 04: You know, did that rise to the level of an arrest? [00:08:23] Speaker 01: The problem is we never even got there, because we don't know the factual predicate for the jury's verdict. [00:08:27] Speaker 01: And I want to come back. [00:08:28] Speaker 04: Well, we know that the factual, we know that they found a constitutional violation in favor of the plaintiffs. [00:08:35] Speaker 01: I want to also respond to one of Judge Sung's point, which I, the question is, do plaintiffs, are they entitled to get all disputed facts resolved in their favor? [00:08:43] Speaker 01: And on harmless error analysis, the answer is no. [00:08:46] Speaker 02: Well, I think in a normal, if, [00:08:50] Speaker 02: In a case where I think it's very clear, our precedent, where let's say there's one constitutional violation at issue and if the court just asked, the jury just delivers a general verdict, a violation, that violation occurred. [00:09:08] Speaker 02: And then there are still factual disputes that could affect the step two analysis. [00:09:12] Speaker 02: Our case law is very clear that the district court in conducting that step two analysis [00:09:17] Speaker 02: resolves all the factual disputes in favor of the plaintiffs when there is a general verdict. [00:09:24] Speaker 02: If there were special interrogatories, the court is bound by the specific factual findings of the jury. [00:09:29] Speaker 02: But in the absence of that, where there is just a general verdict, every factual dispute is resolved in favor of the plaintiffs. [00:09:37] Speaker 02: So here we have a general verdict that violations occurred. [00:09:41] Speaker 02: So why wouldn't the district court [00:09:45] Speaker 02: in deciding the step two analysis, just why wouldn't they be able to under our case law just resolve all the factual disputes in favor of the plaintiff? [00:09:56] Speaker 01: Because we're not challenging the general verdict on step one. [00:10:00] Speaker 01: We're saying before we even got there, there was a procedural error, a question went to the jury that shouldn't have. [00:10:07] Speaker 01: Now to run with the unlawful detention theory of liability. [00:10:12] Speaker 02: Step one of the qualified meaning analysis is whether a violation occurred. [00:10:18] Speaker 01: Right. [00:10:18] Speaker 02: And the jury did answer that specific question. [00:10:22] Speaker 01: Yes, but the jury might have also been thinking about equal protection when it answered that question. [00:10:28] Speaker 01: In other words, the question is number one, was there an error? [00:10:33] Speaker 01: It's pretty clear there was, giving this to the jury. [00:10:35] Speaker 01: Question number two is, was that error harmful? [00:10:37] Speaker 01: And when that is the inquiry, the standard in this circuit is, unlike sufficiency of the evidence review, the prevailing party is not entitled to have disputed factual issues decided in its favor. [00:10:50] Speaker 01: So instead, the court examines all relevant parts of the record. [00:10:55] Speaker 01: And again, to stick with the disabled placard example, here there's evidence that deputies were motivated, in part, to investigate the placard. [00:11:03] Speaker 01: And there's a clear absence of case law making detention on that basis unlawful. [00:11:09] Speaker 01: So was there error? [00:11:11] Speaker 01: Yes. [00:11:12] Speaker 01: Was it harmful? [00:11:12] Speaker 01: Yes, because it precluded defendants from asserting, for one thing, along with the others in our brief, a disabled placard-based qualified insurance. [00:11:23] Speaker 04: Well, we could, you know, we could... Well, I don't want to get into an argument with you about this, but it seems to me like... [00:11:32] Speaker 04: We could just send it back to the district court to consider that. [00:11:35] Speaker 04: But could you move on to your other issues that you raised? [00:11:38] Speaker 04: Absolutely. [00:11:39] Speaker 04: They're also pretty interesting. [00:11:41] Speaker 04: That is the Menell liability and the damages that were returned. [00:11:47] Speaker 01: Yes, so let's turn to the damages issue. [00:11:50] Speaker 01: So there's a due process error. [00:11:52] Speaker 01: And it's important to remember how this issue came about in the course of the post-trial phase. [00:11:58] Speaker 01: The initial judgment was just for $8.25 million, didn't specify where that's allocated. [00:12:05] Speaker 01: Post-trial briefing, each party respectively presumed [00:12:10] Speaker 01: This seems like it probably included a treble damages penalty. [00:12:15] Speaker 01: They adopted that presumption for tactical reasons. [00:12:19] Speaker 01: That presumption that they adopted didn't make it the judgment. [00:12:22] Speaker 01: The judgment was still this blank eight and a quarter million dollars. [00:12:26] Speaker 01: Down the line, district court asked for further briefing and raised the issue of a due process problem if there's a punitive award. [00:12:34] Speaker 01: Defendants said, yes, that's a due process issue if this award was punitive. [00:12:38] Speaker 01: Then the district court amended the judgment in its order on the post trial motions, and that's when this due process error kind of bore fruit. [00:12:46] Speaker 01: So this isn't a classic case of waiver the way plaintiffs try to characterize it. [00:12:51] Speaker 01: It came about certainly in an unusual way, but the result is an admitted $5 million. [00:12:56] Speaker 04: Didn't the defendants ask for this particular verdict form that the judge used? [00:13:02] Speaker 01: They either asked for it or didn't object to it. [00:13:05] Speaker 04: I thought they asked for it. [00:13:06] Speaker 04: They wanted a simple verdict as possible. [00:13:09] Speaker 04: Part of the problem is because the verdict form didn't carve out the damages, compensatory damages of $100,000. [00:13:20] Speaker 04: damages under the Bain Act of whatever, and then trouble. [00:13:26] Speaker 04: We don't really know that because the verdict form didn't... I think the judge wanted to do that, and then the county said, no, no, no, no. [00:13:35] Speaker 04: Let's just have a general verdict, basically. [00:13:37] Speaker 01: We're not asserting there's an error in the verdict form, Your Honor. [00:13:40] Speaker 01: We're asserting there's a due process problem, and it didn't really come to fruition until three months after the jury had gone home. [00:13:47] Speaker 01: And that, let's call it a squishy waiver, [00:13:50] Speaker 01: doesn't justify upholding an unlawful $5 million punitive award. [00:13:55] Speaker 02: So I understand that we're talking about the treble damages for the Bain Act claim. [00:13:59] Speaker 02: My understanding is that California says that distinguishes between statutory penalties or damages and punitive damages in that there's case law in California that says when a statute caps damages as it does here to a treble damages award, that that's not [00:14:20] Speaker 02: the same due process protections are not required. [00:14:23] Speaker 02: And so there's a case that says, it's not the plaintiff's burden. [00:14:27] Speaker 02: When there's a treble damages cap, it's not the plaintiff's burden to show that the defendant can afford to pay. [00:14:36] Speaker 02: So why doesn't that case law apply here? [00:14:39] Speaker 01: I, Your Honor, I'm not familiar with that case. [00:14:42] Speaker 01: I'm familiar with the Robert L. Cloud case, which is a Cal Court of Appeal decision strongly implying the opposite. [00:14:49] Speaker 01: That case held that where you have a punitive penalty statute, which allows for double actual damages, the plaintiff still bears the burden of producing evidence of financial condition. [00:15:02] Speaker 01: and that statute, that's the Robert L. Cloud v. Mike Sell case, and so that's not squarely on point in the sense of interpreting the Bain Act, but it's a very closely analogous statute. [00:15:13] Speaker 01: I see I'm just about out of time, or I am out of time. [00:15:16] Speaker 02: I think we said we would give a few extra minutes because we're consolidating argument. [00:15:20] Speaker 01: And could I still have three minutes for rebuttal? [00:15:22] Speaker 04: Let me ask you, I got a few more questions on these damages issues. [00:15:29] Speaker 04: Is there any California case that squarely says damages under the Bain Act are punitive damages analogous to general punitive damages? [00:15:41] Speaker 01: There's no case that says analogous to—it's Cal Civil Code 3294. [00:15:46] Speaker 01: That's the general punitive damages statute. [00:15:48] Speaker 01: There's no case saying quite what your honor just said, but there is a case, a Cal Supreme Court case. [00:15:54] Speaker 01: talking about the penalty language in the penalty provision of the Bain Act that says, this language reflects the legislative intent to punish intentional and morally offensive conduct. [00:16:07] Speaker 01: And that's been interpreted to mean it's punitive, and the district court didn't. [00:16:11] Speaker 04: So let me ask you this. [00:16:12] Speaker 04: So the trier of fact has discretion to trouble the compensatory damages under the Bain Act, correct? [00:16:23] Speaker 01: Yes, Your Honor. [00:16:24] Speaker 01: It's actually a cap, so the trial... Yes, right. [00:16:26] Speaker 01: It can go up to three times. [00:16:27] Speaker 01: ...anywhere within that range. [00:16:28] Speaker 01: Right. [00:16:29] Speaker 04: Okay. [00:16:30] Speaker 04: Is there any case law that says you have to instruct the trier of fact, the jury, on how they should exercise that discretion? [00:16:40] Speaker 01: I'm not aware of any California case law, but under federal case law, there's no question that when a jury is awarding punitive damages. [00:16:49] Speaker 02: Well, I think that's true as a general matter. [00:16:51] Speaker 02: Do you have any federal case law that says when there's a cap, when there's a three times cap on the award as it is here, that there still requires instructions on jury discretion? [00:17:03] Speaker 01: The closest on point case, and it's a four circuit case. [00:17:07] Speaker 01: It's not a nine circuit case. [00:17:10] Speaker 01: let me find it, it's called, it's a fourth circuit case, Johnson v. Hugo's Skateway. [00:17:15] Speaker 01: That case interpreted a statute which allows for a punitive award up to $350,000. [00:17:22] Speaker 01: So that's a very solid firm cap. [00:17:26] Speaker 01: And that case held, the jury there did not have, should have been instructed on the purpose of punitive damages, it wasn't, that's a due process violation. [00:17:35] Speaker 01: So the same ought to go for a treble damages penalty, especially in an award [00:17:40] Speaker 01: that can go as high as five million dollars or even higher. [00:17:43] Speaker 02: So you have no Ninth Circuit and no California law on that point? [00:17:47] Speaker 01: Specifically saying the jury needs... Even when there's a cap? [00:17:55] Speaker 01: No, not that we found. [00:18:00] Speaker 04: Thank you. [00:18:01] Speaker 03: I have some questions if I could. [00:18:05] Speaker 03: We'll give you some extra time and you will get three minutes for rebuttal. [00:18:08] Speaker 03: I'd like to go back to your first, your first request was reverse and remand and I think where Judge Pius was going was is this a situation where there could be a reversal but then direct the district court to determine as a matter of law whether the law was clearly established. [00:18:23] Speaker 03: Would you address that because you're arguing for a new trial. [00:18:25] Speaker 03: I think he's asking whether it can be done without a new trial. [00:18:29] Speaker 01: The issue I foresee there is, and let's, I've gone ahead and, you know, I've responded to Judge Sung's points about, you know, making all assumptions in favor of plaintiffs on the facts of the violation. [00:18:48] Speaker 01: But I think that even if we run with that assumption, it becomes very difficult for the district court to determine whether there was a violation of clearly established law. [00:18:59] Speaker 01: Let's go ahead and assume the jury found there was an unlawful detention here and an unlawful search running on those Fourth Amendment claims. [00:19:08] Speaker 01: The district court says, well, how did that come about? [00:19:10] Speaker 01: What exactly was the unlawful detention? [00:19:13] Speaker 01: Was it related to the placard? [00:19:15] Speaker 01: Was it related to an absence of reasonable suspicion? [00:19:17] Speaker 01: The same goes for the search. [00:19:20] Speaker 01: Which search was unlawful? [00:19:22] Speaker 01: Was it only Deputy Popes? [00:19:23] Speaker 01: Was it also Deputy Hollands? [00:19:25] Speaker 01: If the latter, why, how? [00:19:28] Speaker 01: So as a practical matter, I don't see how the district court could address that issue. [00:19:32] Speaker 03: All right. [00:19:33] Speaker 03: I understand your argument. [00:19:35] Speaker 03: Could I also then ask about ratification? [00:19:37] Speaker 03: Do you have any authority that would guide us on this is or is not enough for ratification? [00:19:44] Speaker 01: Yes, Your Honor. [00:19:46] Speaker 01: First, we have the principle that ratification requires more than a mere refusal to overrule a subordinate. [00:19:54] Speaker 01: And a refusal to overrule is exactly what we have here. [00:19:58] Speaker 01: We have, and this is Lieutenant Brody's testimony regarding Sheriff Ahern. [00:20:04] Speaker 01: So Ahern is the policymaker. [00:20:06] Speaker 01: Brody wrote the investigation. [00:20:09] Speaker 01: Brody says the sheriff's notation here indicates he's saying no further action, which itself would say the complaint being unfounded is what stands. [00:20:21] Speaker 01: That's Brody saying all that Ahern did [00:20:24] Speaker 01: is let this thing stand. [00:20:26] Speaker 01: That is it. [00:20:27] Speaker 02: Couldn't think of a clear example of- Right, but the finding of unfounded also according to the record means that there was a finding that the defendant's actions were consistent with policy, right? [00:20:38] Speaker 02: And there was expert testimony to that effect, right? [00:20:40] Speaker 02: So why isn't that enough given the standard of review where we're deferring [00:20:46] Speaker 02: in large part to the jury's finding of ratification. [00:20:49] Speaker 02: Why isn't that enough for the jury to say that there was a finding that the defendant's conduct was consistent with policy, and that's enough for ratification? [00:21:01] Speaker 01: There's a good argument, or at least a decent argument, that Lieutenant Brody approved of deputy's conduct by concluding unfounded. [00:21:10] Speaker 01: But Lieutenant Brody's not the policymaker. [00:21:12] Speaker 01: Plaintiffs need to show that Sheriff Ahern [00:21:15] Speaker 01: approved of the deputy's conduct, not that he merely approved of the investigation. [00:21:18] Speaker 01: Right, but he says, I reviewed it and I agree. [00:21:21] Speaker 01: He didn't say I agree. [00:21:22] Speaker 02: I mean, the jury was entitled to draw that inference, though, wasn't it? [00:21:25] Speaker 01: Not on our case law. [00:21:27] Speaker 01: And the clearest case on our side is the Ninth Circuit case of Trevino v. Gates. [00:21:33] Speaker 01: That case involved an officer, involved shooting, an LAPD officer shot a suspect, and there was a punitive damages award against that officer. [00:21:44] Speaker 01: The city council reviewed the details of the shooting and approved paying the punitive damages award on behalf of that officer. [00:21:53] Speaker 01: This court held that's not ratification. [00:21:57] Speaker 01: to be sure an argument could be made that the council approved of the shooting. [00:22:02] Speaker 02: It voted for paying for this punitive... Well, counsel, an attorney saying go ahead and pay punitive damages seems to be very different from saying we're not gonna find any problem here. [00:22:13] Speaker 01: I very much agree. [00:22:14] Speaker 01: The problem is it was Lieutenant Brody who said, I've thoroughly reviewed this and I find a problem. [00:22:20] Speaker 01: Sheriff Ahern didn't do that. [00:22:22] Speaker 01: He wrote no further action required. [00:22:25] Speaker 01: All he did was put into words the failure to overrule that the case law is clear does not suffice to show radical. [00:22:32] Speaker 04: Did we assume that the jury assumed or found that or determined that he had read thoroughly, you know, that he had read the report and considered it and [00:22:42] Speaker 01: The jury, I suppose, could have inferred that he read the report. [00:22:45] Speaker 04: And they heard the evidence from the experts and whatnot? [00:22:47] Speaker 04: I mean? [00:22:49] Speaker 01: They could have inferred that he reviewed it. [00:22:52] Speaker 01: And he wrote, no further action required, though. [00:22:54] Speaker 01: And that's not approval. [00:22:55] Speaker 01: Plaintiff's very best case on this issue is Fuller v. City of Oakland. [00:23:00] Speaker 01: And there you have it. [00:23:00] Speaker 04: Why couldn't? [00:23:01] Speaker 04: Is that a finding in effect by the jury? [00:23:04] Speaker 01: What, the inference that he read the report? [00:23:06] Speaker 04: Yes, that he read the report and that he approved it. [00:23:09] Speaker 04: But he approved the conduct. [00:23:10] Speaker 01: The approval goes too far. [00:23:11] Speaker 01: At this point, we get to the legal question of what suffices to show approval. [00:23:17] Speaker 01: And so we can't assume the jury found the ultimate fact of approval. [00:23:22] Speaker 01: That's ultimately a legal standard. [00:23:23] Speaker 02: But they could draw a reasonable factual inference that he read the report and by saying no further action required was not disapproving of it. [00:23:34] Speaker 01: Yes, but there's no case saying the absence of disapproval is ratification. [00:23:38] Speaker 01: In fact, [00:23:39] Speaker 01: the exact opposite. [00:23:40] Speaker 01: The failure to overrule, which would be the absence of disapproval, is not ratification. [00:23:44] Speaker 01: There needs to be more, and plaintiffs didn't have it here. [00:23:47] Speaker 03: Could I ask one final question? [00:23:49] Speaker 03: Even if you win on everything else, would you acknowledge Bain Act liability as to the officer and as to the county? [00:23:58] Speaker 01: No, Your Honor. [00:23:59] Speaker 03: Okay, and why not? [00:24:01] Speaker 01: The effect of the qualified immunity error was to give the jury the impression that the law of detention and search is crystal clear. [00:24:09] Speaker 01: Anybody violating that law would have known. [00:24:11] Speaker 01: It's an element of Bain Act liability that Deputy Holland intentionally violated plaintiff's rights or at least did so with reckless disregard. [00:24:21] Speaker 01: And the jury was made prejudicially more likely of making that finding against Deputy Holland [00:24:28] Speaker 01: because it had the qualified immunity instructions telling it all this law is very clearly established. [00:24:34] Speaker 01: That prejudice is the verdict on the Bain Act liability directly. [00:24:39] Speaker 03: Since qualified immunity doesn't seem to be available under the Bain Act, do you have any authority for this bleed over concept that you're using here? [00:24:48] Speaker 01: The authority is an argument from harmful and harmless error, the basic principle of that. [00:24:53] Speaker 01: There was this error of law giving the question of clearly established law to the jury. [00:24:58] Speaker 01: And as a consequence of that, again, this court's task is to read every relevant part of the record. [00:25:03] Speaker 01: The consequence of that error was that the jury was prejudicially more likely to find Deputy Holland acted with intent, or at least reckless disregard, to violate plaintiff's rights. [00:25:15] Speaker 03: Thank you. [00:25:16] Speaker 03: That's my question. [00:25:19] Speaker 02: Thank you, counsel. [00:25:19] Speaker 02: You'll have three minutes. [00:25:21] Speaker 02: Thank you. [00:25:35] Speaker 00: Good morning. [00:25:37] Speaker 00: Good morning. [00:25:37] Speaker 00: May it please the court, Joseph May for plaintiffs and appellees. [00:25:41] Speaker 00: I'm here with my colleagues, Brian Gehringer and Craig Peters. [00:25:45] Speaker 00: I would like to start by briefly discussing a case that actually wasn't cited in the briefs. [00:25:49] Speaker 00: I think it's pretty illustrative and highlights some of the points that we did make in our briefs. [00:25:54] Speaker 00: And that case is Washington versus Lambert, 98 F third 1181, an opinion authored by Judge Reinhart. [00:26:02] Speaker 00: And one of the quotes from the case at page 1187 is, notwithstanding the views of some legal theoreticians, as a practical matter, neither society nor our enforcement of the laws is yet colorblind. [00:26:15] Speaker 00: And that was in 1996. [00:26:16] Speaker 00: The court went on, in the opinion, to say, quote, there's a moving violation that many African Americans know as DWB, driving while black. [00:26:27] Speaker 00: And it cites an authority and says, quote, these encounters are humiliating, damaging to the detainees' self-esteem and reinforce the reality that racism and intolerance are for many African Americans a regular part of their daily lives. [00:26:43] Speaker 00: And what the court ultimately, the majority of the court ultimately concluded was that the case before them, quote, [00:26:51] Speaker 00: presents, quite simply, an egregious violation of the Fourth Amendment." [00:26:56] Speaker 00: That case involved, briefly, 19 armed robberies in Los Angeles committed by a taller black man and a shorter black man. [00:27:04] Speaker 00: That was the description. [00:27:05] Speaker 00: They had used a variety of cars, so they couldn't be tied to any particular vehicle. [00:27:10] Speaker 00: And there were two black men, one taller and one shorter, in a Carl's Jr. [00:27:14] Speaker 00: restaurant in Santa Monica. [00:27:16] Speaker 00: And the officers suspected that they were the culprits, followed them into a garage, had them get out of the car at gunpoint, get on the ground, put them in handcuffs, frisked them, had them in a police car. [00:27:27] Speaker 00: And in that case, they knew how many suspects. [00:27:30] Speaker 00: There were two. [00:27:30] Speaker 00: What the race was, they were both black, approximate height. [00:27:35] Speaker 00: And in that case, the court found the violation to be egregious. [00:27:39] Speaker 00: If that case was egregious, we would submit that this case is actually disgusting. [00:27:45] Speaker 04: It sounds like an unfortunate case, but I'm all honest. [00:27:50] Speaker 04: I didn't read it. [00:27:52] Speaker 00: I understand. [00:27:53] Speaker 04: I mean, why don't you move on to the issues that we need to decide in order to either affirm the verdict here or remand in part? [00:28:08] Speaker 00: I'm happy to do that. [00:28:09] Speaker 00: It was by way of introduction. [00:28:10] Speaker 00: I understand. [00:28:11] Speaker 04: I understand. [00:28:12] Speaker 00: Yeah, I appreciate that. [00:28:14] Speaker 00: Before I get to the points that were actually raised, I think one of our strongest arguments that was in the brief is forfeiture. [00:28:20] Speaker 00: Rule 51 of the Federal Rules of Civil Procedure requires strict compliance. [00:28:24] Speaker 00: There are a few very narrow exceptions to the rule. [00:28:28] Speaker 00: But essentially, you must make a specific objection to an instruction, either one that you think should be given or one that you don't think should be given. [00:28:35] Speaker 04: Well, it was pretty clear here that the district judge was going to send the qualified immunity question to the jury. [00:28:43] Speaker 04: He just made it clear. [00:28:45] Speaker 04: That's what he was going to do. [00:28:47] Speaker 04: What good does an objection do at that point when the judge has made it abundantly clear? [00:28:55] Speaker 00: What we have here is that part of the record where he's discussing qualified immunity, and he said, you know, please give my speech to the Ninth Circuit. [00:29:04] Speaker 00: He said, you know, I know plaintiffs take issue with this. [00:29:06] Speaker 00: We filed a very robust objection. [00:29:08] Speaker 00: And he said, maybe the defendants don't like it too, and you can take it up on appeal. [00:29:12] Speaker 00: Right after that, immediately after that in the record, the court dealt with another issue, which was whether the county should be on the verdict form for apportionment. [00:29:22] Speaker 00: And Mr. Gilbert, trial counsel for the defendants, [00:29:24] Speaker 00: said, I don't think that's appropriate because it's not a separate liability for the county. [00:29:28] Speaker 00: The liability is co-extensive with the other claims. [00:29:32] Speaker 00: And Judge Alsop looked at me and I said, you know what, Your Honor, this might be the only thing in the entire case that counsel has agreed on. [00:29:38] Speaker 00: It was a very contentious matter. [00:29:40] Speaker 00: And the judge said, well, if that's so, let me take another look at it. [00:29:43] Speaker 00: And what the judge did was remove the line for the county from the verdict form. [00:29:47] Speaker 02: What about the instructions of the verdict form that just asked for whether the violations occurred without specifying which ones? [00:29:57] Speaker 02: Was there any objection from the defense to that? [00:30:01] Speaker 00: Not only was there not an objection, we cite in our brief to the portion of the record where Mr. Gilbert asked for a general verdict form. [00:30:07] Speaker 00: He said, we request the general verdict form that essentially says as to first plaintiff, do they prevail against this defendant and so forth. [00:30:15] Speaker 00: And so the verdict form that we got was essentially what the defense asked for. [00:30:19] Speaker 00: So that would be, if an error, an invited error. [00:30:25] Speaker 00: Going on to another point, I think, aside from forfeiture, as to both the qualified immunity instructions, where there were no objections made, just a comment in the record. [00:30:35] Speaker 00: And we filed a motion asking for the case to be submitted on, sorry, I might be in the wrong place. [00:30:45] Speaker 00: Well, at any rate, I think that Judge Fitzwater made a good point about the Bain Act essentially would moot all of these issues. [00:30:52] Speaker 00: Qualified immunity doesn't apply to the Bain Act. [00:30:54] Speaker 00: The defense didn't challenge the instruction as to liability on the Bain Act. [00:30:59] Speaker 00: It doesn't challenge that there was sufficient evidence to support the finding on the Bain Act. [00:31:03] Speaker 00: And I haven't seen or heard anything that suggests that some kind of error giving qualified immunity to the jury wouldn't somehow infect. [00:31:10] Speaker 02: What about the taint argument? [00:31:12] Speaker 02: Did the defense counsel raise that to the district court judge that the qualified immunity instructions would taint the Bain Act? [00:31:19] Speaker 00: Well, of course, no, the defendants didn't raise any argument about qualified immunity being in the instructions and were given many opportunities to do so. [00:31:25] Speaker 02: I understand the judge had made it very clear that they were going to send the qualifying immunity question to the jury, but once that decision was made, did the defense counsel have any objections to the manner in which or the wording of those instructions? [00:31:42] Speaker 00: No, not that I can recall. [00:31:43] Speaker 00: And I think it's telling that the defense never did object, given all the opportunities to have the qualified immunity go to the jury, and we were the ones who so vehemently objected. [00:31:53] Speaker 00: I think that just shows that the only party that would be prejudiced by this additional instruction and question on a verdict form is the plaintiffs. [00:32:02] Speaker 00: prong one, and we had to prove that every reasonable officer would have known that they were violating the Constitution. [00:32:07] Speaker 00: The defendants were happy to sit back and let that go to the jury. [00:32:09] Speaker 02: I recall that the district court said that you or the plaintiffs were the most unhappy with his decision. [00:32:15] Speaker 00: And rightfully so. [00:32:16] Speaker 00: It gave us an additional hurdle to overcome, which we did. [00:32:18] Speaker 00: And so it's clear that the jury found both the violation and that all reasonable officers would know of it. [00:32:25] Speaker 00: I know that there is the Morales case, which I think is probably the better case. [00:32:28] Speaker 00: It is a more recent case. [00:32:29] Speaker 00: And the Morales case distinguishes the previous cases that took the approach that some of the other circuits do, which is that there's a mixed question of law and fact. [00:32:40] Speaker 04: I mean, I think the Morales case basically, Morales basically I think lays out what should happen. [00:32:50] Speaker 00: And I would tend to agree. [00:32:52] Speaker 00: I would just note that the analysis, I tried to follow it. [00:32:55] Speaker 00: It pointed out that the Saucier versus Katz case somehow changed the analysis back in 2001. [00:33:00] Speaker 00: And I went to Saucier and I read through Saucier. [00:33:04] Speaker 00: I didn't see anything in Saucier that said that this is only a legal question for the judge. [00:33:09] Speaker 00: In fact, I have page 205 at Saucier. [00:33:12] Speaker 02: Well, we have Morales. [00:33:14] Speaker 02: And that is binding precedent in this section. [00:33:17] Speaker 00: Well, but there are other cases that hold contrary to Morales. [00:33:20] Speaker 00: You have a three-judge panel in Morales. [00:33:22] Speaker 00: You have three-judge panels in the Bilbrey case, some of these other cases that we cited. [00:33:26] Speaker 00: So there's a split within the circuit. [00:33:28] Speaker 00: There's a split among the circuits. [00:33:30] Speaker 04: The qualified immunity can go to the jury? [00:33:34] Speaker 00: Yes, absolutely. [00:33:35] Speaker 00: We cited a string of questions. [00:33:38] Speaker 04: That's news to me. [00:33:40] Speaker 00: It's in the brief. [00:33:41] Speaker 00: We cited three different cases that clearly hold that there's a fact component. [00:33:45] Speaker 02: And in other circuits, including... Well, I think there is no dispute that there is step one, and even Morales says step one is a factual question for the jury, for the qualified amnesty. [00:33:54] Speaker 02: Step one is essentially the question of whether a constitutional violation occurred. [00:33:58] Speaker 02: Yes. [00:33:59] Speaker 02: that I think there's no dispute that is a factual question for the jury. [00:34:02] Speaker 02: What Morales says the step two analysis is a question for the legal question for the judge. [00:34:09] Speaker 02: So are you saying that there's case law from other circuits or this circuit saying the step two clearly established analysis is a factual question for the jury? [00:34:18] Speaker 00: In part, yes. [00:34:20] Speaker 00: And again, we've cited those cases that have to get to the portion of the brief. [00:34:29] Speaker 02: If what you're saying is that there can be factual disputes that affect the step two analysis, then I think that's correct. [00:34:35] Speaker 02: But the ultimate question of whether the law is clearly established is a question for the judge. [00:34:42] Speaker 00: I think that step two is sometimes and has been, and I get that the trend is moving away from this, but sometimes step two is viewed as a two-part analysis. [00:34:51] Speaker 00: Does the case law make this right clear? [00:34:53] Speaker 00: And that's clearly for the trial judge. [00:34:55] Speaker 00: the jury's not asked to read any case law. [00:34:56] Speaker 02: But there could be a factual dispute that affects that. [00:34:59] Speaker 00: And that next question, I believe it applies in the Fifth Circuit where Judge Fitzwater sits, is would all reasonable juries know that they were violating the right? [00:35:06] Speaker 00: And when you ask a question like that, objective reasonableness, that's a jury question. [00:35:10] Speaker 00: And so judges, and again, there seems to be a circuit split that remains even after the Saucer case in 2001. [00:35:16] Speaker 00: So I would just suggest it's not clear that Morales is the only way to view this. [00:35:21] Speaker 00: I don't want to spend too much time on this because I did want to address [00:35:24] Speaker 00: some of the other points, including the point that there's any reason to potentially send this back to Judge Alsop. [00:35:30] Speaker 00: The defense, I think, is arguing that one of the problems is that it was just the jury that had to determine Prong 2, and Judge Alsop never determined Prong 2. [00:35:39] Speaker 00: That's not true. [00:35:40] Speaker 00: Judge Alsop determined Prong 2 four separate times in this case. [00:35:44] Speaker 00: In ruling on the motion to dismiss, of course, there's a much more limited record. [00:35:48] Speaker 00: In ruling on the motion for summary judgment, a more robust record. [00:35:52] Speaker 00: In drafting the jury instructions, the judge also said, all the law I have given to you is clearly established, so it's a third time. [00:35:59] Speaker 00: And then in ruling on all the post-trial motions, the judge analyzed qualified immunity, including Prong 2, yet again. [00:36:06] Speaker 00: And so to the extent there was an error in giving prong two to the jury, I would say it was asking them to decide a somewhat factual question, would all reasonable officers know, whereas all of the times that the case law was resorted to to determine clearly established, ALSEP had already done that. [00:36:22] Speaker 00: So I think it would be futile to send the case back to ALSEP for that purpose. [00:36:26] Speaker 00: But more importantly, we have forfeiture. [00:36:28] Speaker 00: They didn't preserve the argument. [00:36:29] Speaker 00: And if we went on the Bain Act, which we have, and they don't, I mean, I didn't hear an argument in the briefs or here today saying that we [00:36:36] Speaker 00: didn't have sufficient evidence to prevail on the Bain Act. [00:36:40] Speaker 04: Is there a due process problem with the damages? [00:36:42] Speaker 00: That's the next point I wanted to get to. [00:36:45] Speaker 00: I don't think so. [00:36:46] Speaker 00: Again, first of all, forfeiture. [00:36:48] Speaker 00: That one they clearly never objected to. [00:36:50] Speaker 00: With regard to the other instruction, they mentioned a colloquy with the court. [00:36:54] Speaker 00: But they never raised this issue. [00:36:57] Speaker 00: And down below, they're saying that we presumed that there was a trebling of damages. [00:37:03] Speaker 00: That's true, and the reason is because we didn't know that they were going to be making any kind of due process argument. [00:37:09] Speaker 00: If the defense had said, there's a problem with this treble damage instruction, you need to give the jury some criteria and check against due process, and so this thing is tainted, in the remittitor motion, in the new trial motion on remittitor, we probably wouldn't have simply said, oh, this was all the product of a trebling, which of course we did to help justify the award. [00:37:30] Speaker 00: Compensatory damages would be less if there had been a trebling, easier to meet the burden. [00:37:35] Speaker 00: But if they had said there's a due process problem, we would have argued in the alternative, maybe there wasn't a trebling. [00:37:41] Speaker 00: We don't know. [00:37:42] Speaker 00: The jury didn't tell us. [00:37:43] Speaker 00: So we should analyze this as an all compensatory award, and the judge would have done that. [00:37:48] Speaker 00: They precluded anybody from being able to do it. [00:37:50] Speaker 00: And this is the reason why you need to make your objections in the trial court. [00:37:53] Speaker 00: It wasn't fair to us. [00:37:54] Speaker 00: It wasn't fair to the court. [00:37:56] Speaker 00: It would waste our resources to force us to do this all over again and bring our plaintiffs back for another trial. [00:38:02] Speaker 00: because they didn't make a key point about treble damages. [00:38:05] Speaker 00: They never had it on their mind. [00:38:06] Speaker 00: They claimed that they argued it at some point. [00:38:09] Speaker 00: The district judge had focused on this, and that was where it came up, and now they're relying on this. [00:38:15] Speaker 00: Let me ask you this. [00:38:16] Speaker 04: Is troubling compensatory damages under the Bain Act, is that punitive? [00:38:23] Speaker 00: It's not punitive damages. [00:38:24] Speaker 00: It's punitive in nature. [00:38:26] Speaker 00: And there's a lot of cases that discuss it. [00:38:27] Speaker 04: What's the difference between punitive in nature and punitive damages? [00:38:31] Speaker 00: Punitive damages. [00:38:32] Speaker 00: And I can cite to some cases. [00:38:35] Speaker 00: We put some in the briefs. [00:38:37] Speaker 00: Traditional punitive damages are, number one, completely uncapped. [00:38:41] Speaker 00: It's at the complete discretion of the fact finder, with no checks or limits to it. [00:38:47] Speaker 00: In California law, it's decided by clearing convincing evidence. [00:38:52] Speaker 00: The statutory penalties or punitive in nature statutory penalties are mandatory and set by the legislature, although there may be discretion that we pointed to a lot of statutes where there's discretion to set these kind of penalties. [00:39:06] Speaker 00: Punitive damages are 100% within the discretion of the jury. [00:39:10] Speaker 00: So if you look at the Bain Act, where it says you may award up to three times damages, it says, but in no event less than $4,000. [00:39:17] Speaker 00: So the award is mandatory if you find this violation. [00:39:21] Speaker 00: By the way, as we pointed out, the Bain Act was drafted to address an increase in hate crimes in the state of California. [00:39:29] Speaker 00: The legislature had a very strong interest in creating the statute to address this issue, imposing an up to treble damages provision. [00:39:36] Speaker 00: The legislature could have, like it did with the unfair competition law, [00:39:40] Speaker 00: set forth criteria that a fact finder should use. [00:39:43] Speaker 00: The legislature in California decided it didn't need separate criteria. [00:39:46] Speaker 00: If you are committing a hate crime that is interfering with somebody's rights through threat, intimidation, or coercion, you're entitled to award up to three times the damages. [00:39:56] Speaker 05: Just because you think it's a good thing to do? [00:40:00] Speaker 00: The legislature has a lot of discretion, and the courts have shown a reluctance to question the way that the state legislatures... I mean, the jury could have just said, well, you know, $100,000 in compensatory damages, that's it. [00:40:12] Speaker 00: It could have. [00:40:13] Speaker 00: And it was instructive. [00:40:15] Speaker 04: So what should they have considered in deciding to go from 100,000 to 2 million? [00:40:22] Speaker 00: They could have considered all the facts of the case and whatever moved them. [00:40:25] Speaker 00: There's no specific criteria. [00:40:27] Speaker 00: And nor did there need to be. [00:40:28] Speaker 00: Nor is there any case that says that there needed to be any specific criteria. [00:40:31] Speaker 02: Is there any case law you can point to that says when there is a cap on statutory damages or statutory penalties, [00:40:42] Speaker 02: either in the California law or in the circuit that says when there is that type of cap, more jury instructions on how to exercise their discretion on where to calculate the statutory penalties is or is not required. [00:41:00] Speaker 00: And no, no, Your Honor, no case says either way. [00:41:03] Speaker 02: Not even in an analogous, under analogous statutory scheme. [00:41:07] Speaker 00: No, we have a lot of cases that we've cited that talk about more traditional trouble damages and obviously punitive damages are a different thing. [00:41:15] Speaker 00: But this would be the first court, I think, if the court were to adopt what the defendants are suggesting, would be the first state or federal court at any level in the entire country that we're aware of that would make this rule. [00:41:25] Speaker 02: that would require the jury instructions where there's a cap on statutory penalties. [00:41:30] Speaker 02: We would also be the first to say it's not required is what you're saying there. [00:41:33] Speaker 02: Well, I think if it's... You have a case you can say to where the court has clearly said, so long as there's a cap, the judge doesn't need to instruct. [00:41:46] Speaker 00: No, and the case is about criteria. [00:41:48] Speaker 00: I mean, I think one thing that the defense failed to do in their briefs was really explain why this is a punitive damages award. [00:41:56] Speaker 00: It clearly wasn't. [00:41:57] Speaker 00: I mean, the jury was asked whether they wanted to give punitive damages. [00:41:59] Speaker 00: They said no. [00:42:00] Speaker 00: and this is a damage, an award that's set forth by the statute. [00:42:04] Speaker 00: The defense didn't do any analysis as to why this should be treated as, they just said this is punitive damages and we're gonna just go into the Haslip case and the Gore VBMW. [00:42:14] Speaker 00: Let's talk about all the punitive damage cap cases with no explanation for how. [00:42:18] Speaker 02: In California describes the statutory penalties as a [00:42:23] Speaker 02: that they are similar to punitive damages because they both serve to motivate compliance with the law and punish, but they are distinct legal concepts, one which is entrusted to the fact finder, the other to the legislature. [00:42:34] Speaker 02: It's Beeman, and then the California Court of Appeals also says that it's a distinct category of statutory penalty. [00:42:43] Speaker 02: And it's the same thing that applies, but it also seems to be they acknowledge it bears some relationship to punitive damages. [00:42:49] Speaker 00: Absolutely. [00:42:50] Speaker 00: And there's, and again, there's a lot of cases that talk about how they're similar, but not quite the same. [00:42:54] Speaker 00: And in fact, we have a Supreme court case. [00:42:57] Speaker 00: We didn't, we didn't include this. [00:42:58] Speaker 00: I think we looked this up in response to their reply brief. [00:43:01] Speaker 00: It's a case from 1919 St. [00:43:03] Speaker 00: Louis, I am versus Southern railway company. [00:43:07] Speaker 00: oh sorry, St. [00:43:08] Speaker 00: Louis IM and Southern Railway Company versus Williams, 251 US 63, that talks about when you're reviewing a statutory penalty, the standard is pretty high to find it to be violative of due process. [00:43:28] Speaker 00: And then recently, the Ninth Circuit in Wakefield versus Visalus, V-I-S-A-L-U-S, 51 F-4 1109, [00:43:38] Speaker 00: It talks about due process clause and outer limits of damage awards. [00:43:42] Speaker 00: It talks about recent years we've evaluated punitive damage awards for constitutional limits, how the constitution limits award of statutory damages is less developed. [00:43:52] Speaker 00: And then they cite to that 1919 case. [00:43:54] Speaker 00: There's not as much case law out there. [00:43:56] Speaker 02: And was there any request before the, in the trial court about instructions to the jury on how to exercise their discretion when awarding the Bain Act damages? [00:44:07] Speaker 00: No, absolutely not. [00:44:09] Speaker 00: No, absolutely not. [00:44:12] Speaker 02: Do you want to address the attorney's fees issues? [00:44:16] Speaker 00: Well, they raised it. [00:44:18] Speaker 00: Should they be addressing it first or? [00:44:20] Speaker 02: I think we discussed at the start that we would just consolidate argument. [00:44:24] Speaker 02: So is there anything you want to add to your briefing? [00:44:26] Speaker 00: Well, I don't think it was raised by the defense, the issue about the attorney's fees, but I'm happy to answer questions if the court has or respond. [00:44:34] Speaker 02: Well, there's two separate cases, right? [00:44:36] Speaker 02: And there's, so I think we're just hearing the arguments on the attorney's fees now. [00:44:40] Speaker 02: If you want, you're saying you would like to respond to what they argue? [00:44:43] Speaker 00: My understanding was that they would go first as the appellant on the issue. [00:44:47] Speaker 02: I'll give you some time to respond to any arguments they make about attorney's fees. [00:44:51] Speaker 00: Okay. [00:44:52] Speaker 00: Thank you, Your Honor. [00:45:10] Speaker 01: On the main appeal, I want to address two points. [00:45:13] Speaker 01: The first is the nature of this Court's review. [00:45:16] Speaker 01: It's review for harmless error. [00:45:18] Speaker 01: There's no real question there was an error about qualified immunity. [00:45:22] Speaker 01: It shouldn't have gone to the jury, clearly established law. [00:45:25] Speaker 01: At that point, this Court's task becomes to determine what was the result, what was the harm. [00:45:30] Speaker 01: and the harm requires reversal of liability as a whole. [00:45:35] Speaker 01: We've talked about the unlawful detention, unlawful search, there were good defenses available that were precluded. [00:45:40] Speaker 01: What about the equal protection claim? [00:45:43] Speaker 01: I never had a chance to talk about that, but there's a prejudice to any hypothetical finding on that claim from the qualified immunity error. [00:45:51] Speaker 01: The consequence of the error was the instructions telling the jury the law of detention and search is crystal clear, [00:45:57] Speaker 02: Did you tell the district court that the instructions on qualifying me were prejudicing the other jury findings before they issued the instructions? [00:46:07] Speaker 01: No, Your Honor. [00:46:08] Speaker 01: But this is a harmless error analysis, which can only occur after the trial is complete, the judgment is entered, that we can see the effect of a legal error. [00:46:15] Speaker 01: So the issue, the legal error, of giving the question to the jury was raised. [00:46:21] Speaker 02: Do you have an obligation to raise problems with the objective jury instructions that you see are problematic? [00:46:28] Speaker 01: Yes, but this was not a problem with a jury instruction in itself. [00:46:32] Speaker 01: It was a problem with giving the question to the jury at all. [00:46:35] Speaker 02: There's under-moralistic... Well, my understanding is your argument is the exact wording of the injunctions, the way in which the judge said these things are clearly established. [00:46:44] Speaker 02: So he could have given a jury instruction that would not have had that level of detail, and there was no objection to it. [00:46:51] Speaker 01: That's correct. [00:46:52] Speaker 01: I'm not aware that a party needs to object on the harmless error what will end up showing the harm of an error. [00:47:02] Speaker 01: The error, again, was giving this to the jury in the first place. [00:47:05] Speaker 01: There's actually no correct way, or I should say, yeah, there's no correct way to instruct a jury on the contours of clearly established law. [00:47:12] Speaker 01: That's a court question. [00:47:13] Speaker 01: It depends on [00:47:14] Speaker 01: a close reading of case law. [00:47:15] Speaker 01: So the error was there. [00:47:17] Speaker 02: Right. [00:47:18] Speaker 02: I understand there was an error in giving question to the jury, but your argument seems to be different from that, that there's a separate argument that the way in which the judge instructed the jury on the qualified immune analysis affected other issues that the jury decided, which seems to be a completely different question from whether it was error just to send the question to analysis to the jury. [00:47:42] Speaker 01: I disagree. [00:47:43] Speaker 01: I think that goes to show the harm of the initial error. [00:47:46] Speaker 01: When it comes to the equal protection theory, an element here was that Deputy Holland acted out of racial bias or prejudice. [00:47:56] Speaker 01: And the jury was made much more likely, prejudicially more likely, to make that finding against Deputy Holland, having been told, here's this clearly established law. [00:48:05] Speaker 01: That told the jury any violation here he would have known. [00:48:08] Speaker 01: Why would they do it? [00:48:09] Speaker 02: It seems to me that there is an opportunity to say, district court, we understand you're going to send the question to the jury, but you shouldn't say these things when you do it. [00:48:18] Speaker 02: And you didn't say that, right? [00:48:19] Speaker 02: There was no objection to that effect. [00:48:21] Speaker 02: Is that right? [00:48:21] Speaker 01: That's correct. [00:48:22] Speaker 01: OK. [00:48:23] Speaker 01: The second point I want to touch on is Bain Act Treble Damages Penalty Award. [00:48:29] Speaker 01: The basic question, the first question, is whether this is the kind of award that is governed by due process constraints. [00:48:36] Speaker 01: That's what we're arguing about when we talk about [00:48:38] Speaker 01: punitive damages. [00:48:40] Speaker 01: And there's a California Supreme Court case interpreting a very, very similar statute, a treble damages statute. [00:48:48] Speaker 01: This is the very recent decision of L.A. [00:48:51] Speaker 01: U.S.D., Unified School District v. Superior Court. [00:48:54] Speaker 01: It's 14 Cal 5th, 758. [00:48:58] Speaker 01: And that's a 2023 decision. [00:49:00] Speaker 01: That case held of a statute that allows up to treble damages penalty [00:49:07] Speaker 01: It is punitive and it's governed, or I should say, a municipality is not liable for damages under that statute. [00:49:16] Speaker 01: That's a classic kind of check, due process check, on punitive damages awards. [00:49:22] Speaker 04: Yes, the municipality. [00:49:24] Speaker 01: Yes, the municipality was a defendant. [00:49:27] Speaker 04: Here we have individuals. [00:49:29] Speaker 01: That's correct. [00:49:30] Speaker 01: And so it's not precisely on point. [00:49:32] Speaker 01: The idea here is a treble damages statute, penalty statute, triggers due process constraints on an award, constraints that include no such award against the municipality and also in our case, the need to instruct the jury. [00:49:47] Speaker 02: Right. [00:49:47] Speaker 02: So, but I would, I think the argument is that this is not completely [00:49:52] Speaker 02: unconstrained punitive damages award. [00:49:56] Speaker 02: Even if they're punitive in nature, they're by statute limited to travel damages. [00:50:01] Speaker 02: And what the California courts have said, because of that, the due process considerations and requirements are different. [00:50:07] Speaker 01: Actually, the case I just cited was talking about a treble damages capped. [00:50:12] Speaker 02: I understand, but there's a difference between that and whether, again, we have a California Court of Appeals case saying that because of the cap, it's not the plaintiff's burden to show that the defendant can pay. [00:50:25] Speaker 01: I'm sorry, I'm still not clear on what that case is. [00:50:27] Speaker 01: The Robert L. Cloud case says a double damages capped. [00:50:31] Speaker 01: Penalty is still bound. [00:50:33] Speaker 02: I'm talking about rich versus Schwab Kala app Case decided in 1998 rich v Schwab is talking about a statute. [00:50:40] Speaker 01: That's a different kind of stuff, right? [00:50:41] Speaker 02: But it imposes a treble It allows for a troubled statutory penalty [00:50:48] Speaker 01: I don't believe it allows for a treble damages penalty. [00:50:51] Speaker 01: The Rich v. Schwab penalty is, and this is Cal Civil Code section 1942.5H. [00:50:58] Speaker 01: That's the statute that's being discussed in Rich v. Schwab. [00:51:05] Speaker 01: That statute allows for a $100 to $2,000 penalty. [00:51:09] Speaker 01: It's not at all a treble damages penalty. [00:51:11] Speaker 02: It puts a cap on it. [00:51:13] Speaker 01: Yes. [00:51:13] Speaker 02: And it has something that's punitive in nature. [00:51:15] Speaker 01: I'm not aware of any case saying that's a punitive in nature penalty. [00:51:20] Speaker 01: And on the other side, we do have that Robert L. Cloud case where there's a double cap. [00:51:24] Speaker 01: That's a Cal Court of Appeal case on a much closer statute. [00:51:28] Speaker 04: Just along this line, I have one last question for you, at least from my perspective, that is. [00:51:33] Speaker 04: So on this particular issue of damages under the Bain Act, we review for plain air. [00:51:41] Speaker 01: To the extent that this issue wasn't raised when the jury was still around, yes. [00:51:46] Speaker 04: Well, it just wasn't raised to the judge. [00:51:50] Speaker 04: I mean, it's reviewed for plain air. [00:51:53] Speaker 04: So when you get to plain air, the question is, it's obvious that the judge would have known that he had to give these instructions. [00:52:02] Speaker 04: So usually there's a case or cases along these lines that you could point to and say, hey, judge, it's clear right here. [00:52:11] Speaker 04: As I hear your argument today, I don't hear you pointing to any cases that would have alerted the judge. [00:52:23] Speaker 01: There's no question that under federal due process standards, a jury needs to be instructed on the purpose of punitive damages awards and to calibrate their discretion. [00:52:33] Speaker 04: The district court actually acknowledged- Well, the judge did give a punitive damage, the standard punitive [00:52:40] Speaker 04: uh, damages instruction with respect to general punitive damages for the 1983 claims. [00:52:46] Speaker 04: Uh, but, but, but, and it's not tailored to the Bain act. [00:52:49] Speaker 04: I acknowledge that, but, uh, we've been discussing the parameters here. [00:52:56] Speaker 04: There was a cap, um, that's not, doesn't seem to be identical to, to traditional punitive damages. [00:53:05] Speaker 04: To be clear, there was a general verdict. [00:53:08] Speaker 04: So we don't really know what happened. [00:53:10] Speaker 01: There was an instruction. [00:53:12] Speaker 04: The general verdict was at the request of the defendants. [00:53:15] Speaker 04: The judge, nobody pointed out to the judge, you know, hey, look, here's the case. [00:53:19] Speaker 04: We can't point to the judge and say, look, you should have known that you had to give, even though there's a cap on three times actual damages, it's obvious you should have given some specific instructions. [00:53:34] Speaker 04: There's no case law. [00:53:35] Speaker 04: So how can we say that he clearly erred? [00:53:38] Speaker 01: At the time the district court entered the order on post-trial motions that actually made this award partly punitive, that judge was on notice of the due process violation. [00:53:50] Speaker 04: In the very same order- What's key, though, is at the time the instructions were given. [00:53:55] Speaker 01: And again, I think this is an unusual instance of waiver. [00:54:00] Speaker 01: I obviously concede at that point we didn't raise this issue. [00:54:04] Speaker 01: But on the other hand, the original judgment- [00:54:07] Speaker 02: I want to give you some time to address the attorney's fees issues. [00:54:11] Speaker 01: On the attorney fees, certainly if the court reverses the judgment in any part, it should also reverse the fee award for read to determination based on any judgment entered later. [00:54:23] Speaker 01: On the other two categories of fees that we argue separately need to be reversed, I'm prepared to just rest on what we say in the brief there. [00:54:31] Speaker 01: and reserve the balance of whatever time if I need to respond. [00:54:36] Speaker 01: But I have nothing further to say. [00:54:37] Speaker 01: Okay. [00:54:39] Speaker 01: Thank you, counsel. [00:54:40] Speaker 02: Did you have anything further? [00:54:42] Speaker 02: No. [00:54:42] Speaker 02: Okay. [00:54:42] Speaker 02: I don't think then there's any need to respond on the attorney's fee. [00:54:45] Speaker 02: Okay. [00:54:47] Speaker 02: Thank you, counsel, for your helpful arguments. [00:54:49] Speaker 02: This case is submitted.