[00:00:02] Speaker 04:
And we'll move to our second case set for argument today, which is Anderson versus Perez case number 23-2790.

[00:00:48] Speaker 00:
Good morning your honors may I please the court Alana router for the appellants I'd like to reserve five minutes for rebuttal.

[00:00:54] Speaker 00:
We're here on a qualified immunity issue and a Bain act issue I'll start with qualified immunity although of course I'm happy to answer questions on either issue.

[00:01:03] Speaker 00:
Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.

[00:01:08] Speaker 00:
generally requires existing precedent that squarely governs the specific factors.

[00:01:13] Speaker 04:
Can we just clarify on this?

[00:01:14] Speaker 04:
Are you claiming prior precedent?

[00:01:17] Speaker 04:
Because as I read your brief, it seemed like you were relying more on the obviousness prong, that this was so obvious.

[00:01:24] Speaker 04:
Let's just get to the prior precedent first.

[00:01:26] Speaker 04:
What is the case that says, the clearly established law that says that this was wrong?

[00:01:31] Speaker 00:
So we're the defendants, so I would say there is no case on the point.

[00:01:35] Speaker 04:
Oh, there we go.

[00:01:35] Speaker 04:
There we go.

[00:01:36] Speaker 04:
Sorry.

[00:01:37] Speaker 00:
And I agree with you that the plaintiffs have not identified a case on the point, and that they are certainly seem to be driving hard on obviousness.

[00:01:46] Speaker 00:
if we want to skip straight to obviousness, because I don't think there's a case on point.

[00:01:51] Speaker 00:
Their obviousness argument is relying on generalized principles of law, which is exactly what is not supposed to happen.

[00:01:56] Speaker 00:
Obviousness is supposed to be a rare exception.

[00:01:59] Speaker 00:
As this case recently recognized in the Wade versus County of Lyon case, the court has only found obvious violations in the exceedingly rare circumstances with extreme facts.

[00:02:09] Speaker 00:
I don't think we're anywhere near that situation here.

[00:02:12] Speaker 04:
So let's go instead to the establishment of the right in the first place.

[00:02:18] Speaker 04:
I mean, that seems to be a little bit more of a tricky subject, because there is a problem with retaliation.

[00:02:28] Speaker 04:
And why have they not stated a claim?

[00:02:32] Speaker 04:
Whether they may have qualified immunity for it, why have they not stated a claim for retaliation?

[00:02:38] Speaker 00:
tribal fact disputes and whether they've stated a claim.

[00:02:40] Speaker 00:
And so we've really only focused on the clearly established issue here because regardless of whether they've established a claim, if they can't get past prong two of qualified immunity, the clearly established requirement, it's irrelevant really whether they may have a claim.

[00:02:54] Speaker 00:
And so the action here I think is really on that side.

[00:02:56] Speaker 04:
Although we can do either prong, should we delve into, I mean why, you're just saying we should deal with prong two and not even address prong

[00:03:06] Speaker 04:
But prong one would be before us, right?

[00:03:08] Speaker 04:
Or are you saying that it's not?

[00:03:10] Speaker 00:
Well, neither.

[00:03:10] Speaker 00:
The trial court found a trialable fact dispute on that, because we're here on summary judgment.

[00:03:16] Speaker 00:
And so regardless, if the court gets to prong one, it still has to get to prong two, unless it's going to stay on prong one.

[00:03:22] Speaker 00:
I don't see even a trial, even taking all the evidence.

[00:03:25] Speaker 00:
in plaintiff's favor, I still see no triable issue of fact.

[00:03:28] Speaker 00:
And we have not advanced that theory here.

[00:03:31] Speaker 04:
We are really focused on prong two.

[00:03:33] Speaker 04:
So as to prong one, you really haven't advanced a theory why this should go out on prong one.

[00:03:37] Speaker 00:
At this point, given the qualified summary judgment standard and the way the court approached the case, we are focused on prong two.

[00:03:44] Speaker 01:
So if there is, for purposes of this appeal, at least a tribal issue of fact on whether a retaliatory motive was a but for a cause of what happened here.

[00:04:02] Speaker 01:
Stated at that level of generality, though, the principle is clearly established that a retaliatory motive can't be a but for a cause of some action that would deter a person of reasonable firmness from exercising First Amendment rights.

[00:04:19] Speaker 01:
What is it that's not sufficiently established?

[00:04:23] Speaker 01:
here, is it that the conduct in which your clients engaged would deter a person of reasonable firmness or what's missing?

[00:04:34] Speaker 00:
I'll say a couple of things about that.

[00:04:36] Speaker 00:
One is that they have not cited a case saying that retaliatory motive if it's above for cause

[00:04:44] Speaker 00:
makes it unconstitutional under the First Amendment.

[00:04:45] Speaker 00:
And I'm thinking by analogy of Neves and the cases around arrests and investigations and prosecutions, where if there is probable cause, and there is also retaliatory motive, you don't necessarily have a constitutional violation.

[00:05:02] Speaker 00:
So to an officer, whether it's clearly established that it being above four causes enough, I would not even say

[00:05:08] Speaker 00:
it would be obvious to all but the plainly incompetent or those not only violating the law.

[00:05:13] Speaker 00:
I think that Neves and those other cases create actually uncertainty in this area around if it's about for cause.

[00:05:19] Speaker 00:
But there is also a legitimate First Amendment public interest in posting the information, whether that is going to be clearly established.

[00:05:27] Speaker 00:
So I would say that first.

[00:05:29] Speaker 00:
The second thing I would say is that this case, this court has said,

[00:05:33] Speaker 00:
The general right to be free from First Amendment retaliation, and I'm quoting, cannot be framed as the general right to be free from retaliation for one's speech.

[00:05:40] Speaker 00:
Rather, the right must be defined at a more specific level tied to the factual and legal context of a given case.

[00:05:46] Speaker 00:
That's the Reilly's American Heritage Farms case, 32F4707 at 729.

[00:05:51] Speaker 00:
And then this court also has the decision from Moore versus Garnon, very recent decision, 83F4743, holding that a retaliatory investigation

[00:06:02] Speaker 00:
It's not clearly established that retaliatory investigation is a violation.

[00:06:06] Speaker 00:
Although there are prior cases holding that retaliatory investigations are violations, they involve different kinds of investigations, different scope, different methodology, and therefore did not clearly establish that the particular investigation at issue and more was unconstitutional.

[00:06:23] Speaker 00:
And I would say similarly here, the general principle that, as you said, where retaliation is a but for cause, does not establish in every case any more than a more general, you know, a prior case about a retaliatory investigation established that will clearly establish enough to overcome qualified immunity.

[00:06:42] Speaker 00:
I think this is a murky area of the law.

[00:06:45] Speaker 00:
And certainly, as we started with, the plaintiffs have not identified any case

[00:06:49] Speaker 00:
involving an officer acting under similar circumstances being held to violate the First Amendment, which is under White versus Pauli, the bar that we're looking for here.

[00:06:59] Speaker 00:
So we don't have that case involving similar circumstances.

[00:07:02] Speaker 00:
And Riley's American Heritage specifically tells us the general right to not be retaliated against is not enough.

[00:07:11] Speaker 00:
And so the only way to get there would be to say this is the rare obvious case where the facts are so extreme

[00:07:16] Speaker 00:
that we're going to excuse the general requirement of a case on point and say it would be obvious to every officer.

[00:07:22] Speaker 00:
And I want to focus for a second on the facts, sir, because they are very attenuated.

[00:07:25] Speaker 00:
This is, there is a, officers come to an apartment based on a 911 call threatening suicide.

[00:07:33] Speaker 00:
They search the apartment.

[00:07:36] Speaker 00:
It turns out to have been a hoax.

[00:07:39] Speaker 04:
Was there anything that came up in the search?

[00:07:41] Speaker 04:
I guess I'm confused as to the underlying claim.

[00:07:44] Speaker 04:
I mean, they're just saying it was an improper search.

[00:07:48] Speaker 04:
But was there anything that came up in the search?

[00:07:50] Speaker 04:
Was anything made public?

[00:07:51] Speaker 04:
Was anything used against them?

[00:07:52] Speaker 00:
Not that it's an issue in this particular case.

[00:07:54] Speaker 00:
There is, I believe, a state court case where some of the underlying search issues are at issue.

[00:08:00] Speaker 00:
But here, we're only talking about what happened afterwards, which is that the plaintiffs present a tort claim per California law.

[00:08:08] Speaker 00:
If you want to sue public entities or officers for damages, you need to present this claim before you file the lawsuit.

[00:08:13] Speaker 00:
So they file the claim.

[00:08:15] Speaker 00:
a news capacity to news picks it up and writes an article about it.

[00:08:21] Speaker 00:
In response, the chief of police puts a press release out that says there's this talk and it's been presented.

[00:08:28] Speaker 04:
But it's only the address that they issue with was was not in the press release, but was in recordings.

[00:08:36] Speaker 04:
that were available on the website.

[00:08:37] Speaker 00:
Neither the address nor their names are in the press release.

[00:08:40] Speaker 00:
The press release says there's been a tort claim filed against us.

[00:08:43] Speaker 00:
This is right after the George Floyd, while the George Floyd protests are going on, and police misconduct is really under the lens.

[00:08:50] Speaker 00:
The press release says, we want the public to be able to judge for themselves whether this was an improper response that the police did when they responded to the 911 call and came.

[00:08:59] Speaker 00:
So we want you all to be able to evaluate for yourselves.

[00:09:01] Speaker 00:
We think that the response was fine, but here, let's let you be the judge.

[00:09:05] Speaker 00:
And here are some links to the body cam footage and to the 911 call.

[00:09:10] Speaker 00:
The press release does not have the plaintiff's names.

[00:09:12] Speaker 00:
It does not have their addresses.

[00:09:13] Speaker 00:
It did not say, listen to the things and you'll find their addresses.

[00:09:17] Speaker 00:
Plaintiff's theory is that if someone clicked and went and watched the body cam footage and listened to the 911 recordings, they could find out the addresses.

[00:09:26] Speaker 00:
They could link that back to the Pasadena News article, which had their name in it.

[00:09:32] Speaker 00:
And that this was all a grand plan by the chief to chill their speech and get them to not pursue the tort claim that they had filed.

[00:09:40] Speaker 00:
Because given their job as federal investigators, it was dangerous for them to have their names out.

[00:09:47] Speaker 00:
That's the theory.

[00:09:48] Speaker 00:
And the question is, is this so glaringly obviously unconstitutional First Amendment retaliation based on case law?

[00:09:56] Speaker 00:
and you know cases involving these facts that we're going to deny the officer the chief qualified immunity.

[00:10:02] Speaker 04:
So can I ask briefly I don't I would just want to move on to the Bain Act arguments because I'd like to hear your response.

[00:10:09] Speaker 04:
It seems to me that those are basically waived.

[00:10:12] Speaker 04:
What's your response to the waiver argument on that?

[00:10:15] Speaker 00:
point of theory is that they are forfeited because this particular articulation of the Bain Act problem was not raised by against below.

[00:10:23] Speaker 00:
There is certainly case law cited in our brief.

[00:10:26] Speaker 04:
If we find it a legal issue that we can look at.

[00:10:31] Speaker 00:
So that's what you're asking us to do.

[00:10:33] Speaker 00:
I would say that and also as we also cited case law in our brief that when a

[00:10:37] Speaker 00:
general claim has been advanced below a particular nuance of the argument can be advanced for the first time, but I think especially where it's a legal theory, and I'd also say in the interest of efficiency, this is a purely legal issue.

[00:10:47] Speaker 00:
There's no factual development to be had that could change anything.

[00:10:50] Speaker 00:
They haven't argued that there is.

[00:10:52] Speaker 04:
But the reason the Bain Act might be appealable is because under our case law currently, we allow anti-SLAPP claims to be appealed.

[00:11:02] Speaker 00:
You do.

[00:11:02] Speaker 04:
But the anti-SLAPP only applies to the Bain Act claims, not to the other.

[00:11:05] Speaker 04:
I mean, the other ones are just appeal.

[00:11:07] Speaker 00:
You only appeal, yeah, the qualified immunity arose from summary judgment.

[00:11:09] Speaker 00:
Right.

[00:11:09] Speaker 00:
That would have come up anyway.

[00:11:10] Speaker 00:
And that's clearly appealable.

[00:11:11] Speaker 00:
Anti-SLAPP, under your current case law, it's before you.

[00:11:14] Speaker 00:
I am aware that there is an ongoing case pending.

[00:11:17] Speaker 00:
I am also aware that that has been on ICE since March.

[00:11:20] Speaker 04:
I understand.

[00:11:20] Speaker 00:
And so I don't know what will happen with that.

[00:11:23] Speaker 00:
But at the moment, it's before you.

[00:11:25] Speaker 00:
And I would say in the interest of efficiency, because this is a purely legal issue, if it's not reached now and we go back down, I think it could be raised again on summary judgment if the court were to entertain successive summary judgment motions, which the court has discretion.

[00:11:38] Speaker 00:
to do if it wants to um under martinez versus high so we should just get ahead of it if we were to agree with you that there's qualified immunity then the bain act claim would be the only issue remaining in this litigation is that right i would have to go back and look there were 10 causes of action um the court there were cross motions for summary judgment the court denied some and granted some not everything is immediately appealable i think it may dispose of

[00:12:03] Speaker 01:
I guess would there be any federal question remaining in the case if we agree with you on qualified immunity?

[00:12:11] Speaker 01:
Because where I'm going with this is if all that is left is state law questions, the district court under 1367C would have discretion to decide not to continue to exercise supplemental jurisdiction over the state law claims, wouldn't it?

[00:12:30] Speaker 00:
There may be a man now claim just me down my list that there was a tribal issue of fact found and I'd have to think through for a minute.

[00:12:38] Speaker 04:
But you didn't appeal qualified immunity on that.

[00:12:41] Speaker 00:
There's no.

[00:12:41] Speaker 00:
And I have to go back and look at that one.

[00:12:47] Speaker 02:
Can you address the merits of the Bain Act claim, assuming that we agree with you that we can reach the merits?

[00:12:53] Speaker 00:
I'd be happy to.

[00:12:54] Speaker 00:
I'm also promised it in my time.

[00:12:55] Speaker 04:
You have as much time as you need to answer a question.

[00:12:58] Speaker 00:
I'd be happy to.

[00:12:59] Speaker 00:
The Bain Act is very clear that speech alone is not sufficient, except upon a showing that the speech itself threatens violence against a specific person.

[00:13:13] Speaker 00:
And the person to whom it's directed reasonably fears that the person threatening violence had the apparent ability to carry out the threat.

[00:13:21] Speaker 00:
And this is a requirement that comes from the First Amendment context, because the government generally can't punish speech alone, except in certain categories like true threats.

[00:13:32] Speaker 00:
And this definition comes right out of the true threat language from Supreme Court case law.

[00:13:39] Speaker 00:
And so there is a guardrail.

[00:13:41] Speaker 00:
And so it has to be enforced.

[00:13:43] Speaker 00:
And here, an internet press release is speech.

[00:13:49] Speaker 00:
Plaintiffs have said in passing that it's conduct not speech, but no authority, no developed argument whatsoever.

[00:13:55] Speaker 00:
It's approximately one sentence in their brief.

[00:13:59] Speaker 00:
And if they had an argument that it was conduct not speech, that was the time to develop it.

[00:14:04] Speaker 00:
But just an assertion that it's conduct not speech is not supported.

[00:14:07] Speaker 00:
And in our reply brief, we've

[00:14:10] Speaker 00:
cited numerous cases at page 25 to 26 of our reply brief treating internet speech as speech in the First Amendment context.

[00:14:19] Speaker 00:
I will be candid that it's not in the Baynard context because I don't see Baynard cases at the federal level or the state court of appeal level going to this question exactly.

[00:14:29] Speaker 00:
But it's hard to see how an internet post is not speech.

[00:14:33] Speaker 00:
And if internet posts are protected as speech and the First Amendment prohibits punishing speech except for true threats or certain other categories not at issue here, then it's got to qualify as a true threat to sustain a Bain Act claim.

[00:14:47] Speaker 00:
And that includes threatening violence, which here there's even plaintiffs have not argued that the speech is threatening violence.

[00:14:55] Speaker 00:
The speech is the linked videos that have an address in them.

[00:15:00] Speaker 00:
And the theory is that somebody could take that address and do something with it.

[00:15:04] Speaker 00:
But it's not that the chief said, we're coming for you.

[00:15:07] Speaker 00:
Here's your address.

[00:15:08] Speaker 00:
Or somebody should come for you.

[00:15:09] Speaker 00:
Here's the address.

[00:15:10] Speaker 00:
The chief makes a post about, we think our officer's conduct was fine.

[00:15:13] Speaker 00:
Here's the video.

[00:15:14] Speaker 00:
Review it for yourself.

[00:15:16] Speaker 00:
And the addresses are in the video.

[00:15:19] Speaker 02:
So you're pointing to the plain language of the statute to make your argument that it controls speech and not conduct as your friend on the other side is arguing.

[00:15:31] Speaker 00:
Well, I mean, the statute says speech alone is not sufficient.

[00:15:36] Speaker 00:
And then we've got the case law from the First Amendment context cited at page 25 to 26 of our apply brief about this being speech.

[00:15:48] Speaker 00:
And they've said nothing in response because there was no case law cited in the appellee's brief.

[00:15:54] Speaker 00:
For the assertion that this is conduct and not speech, I think it would be a serious

[00:16:00] Speaker 00:
deviation from the case law to say that an internet post is conduct and not speech for purposes of the Bain Act.

[00:16:06] Speaker 00:
And to take a step back, the Bain Act focuses on lots of kinds of conduct.

[00:16:10] Speaker 00:
Much of it is physical.

[00:16:11] Speaker 00:
We're talking about interfering with constitutional rights through coercion, threat, or intimidation.

[00:16:19] Speaker 00:
So we could be talking about lots of kinds of conduct here, but an internet post in a press release

[00:16:25] Speaker 00:
sure feels like speech to me under those cases, the extensive cases where it's been treated and analyzed as speech in many contexts, in many cases.

[00:16:34] Speaker 00:
And so to say it's conduct with no case law to support that assertion seems to me going pretty far out on a limb.

[00:16:42] Speaker 00:
And again, in terms of your question, I am relying on the plain language of the statute that the speech must

[00:16:47] Speaker 00:
The speech itself must threaten violence and it must reasonably appear that the person threatening violence had the apparent ability to carry out the threat.

[00:16:54] Speaker 00:
This is just not a true threat situation and therefore the Bain Act, it may be other things, but it is not a Bain Act violation.

[00:17:01] Speaker 04:
Okay, thank you and we'll give you a couple minutes.

[00:17:05] Speaker 00:
Thank you, I appreciate it.

[00:17:17] Speaker 03:
Good morning, Your Honors.

[00:17:18] Speaker 03:
Stephen B. Stevens for the plaintiffs.

[00:17:20] Speaker 03:
I'd like to get right to the core issue, as counsel has described it, and that is whether the right to be free from retaliation for exercising the First Amendment right to seek redress from the government through lawsuits is clearly established such that an act of retaliation

[00:17:46] Speaker 03:
an act of retaliation should have been obvious to the official.

[00:17:50] Speaker 04:
And so, OK, I'll ask you where I wrongly started with the opposing counsel.

[00:17:55] Speaker 04:
Are you conceding that you don't have a case that says this is clearly established that this act would be an act of retaliation?

[00:18:05] Speaker 03:
I don't think we have, well, I shouldn't say I don't think.

[00:18:08] Speaker 03:
There's nothing on all fours with here.

[00:18:11] Speaker 03:
I agree with that.

[00:18:12] Speaker 04:
So you are relying on the obviousness prong when it comes to qualified immunity.

[00:18:16] Speaker 03:
On the obviousness in that it's clearly established that retaliation for exercising a First Amendment right is unconstitutional.

[00:18:25] Speaker 04:
As a matter of fact, one of the things that... You're right that retaliation on its face for exercising First Amendment rights is

[00:18:34] Speaker 04:
is wrong, but it seems to me that the whole point of qualified immunity is the officer has to know that what he's doing is going to be perceived as retaliation or is meant to be retaliation.

[00:18:48] Speaker 04:
Otherwise, qualified immunity seems to have no effect.

[00:18:51] Speaker 04:
So you've either got to point to a case where the officer

[00:18:53] Speaker 04:
should have known and it sounds like you're not really pointing to a case or you have to say this is so obvious no officer in the right mind would have done this.

[00:19:02] Speaker 03:
I agree with the latter characterization your honor I'd like to develop that point.

[00:19:10] Speaker 03:
The Andersons were attacked in a swatting incident where the police received a call

[00:19:20] Speaker 03:
that there was a suicidal person in their home that caused the police department to break into their home.

[00:19:27] Speaker 03:
And even after they knew that there was no suicidal person there, the officers continued to rifle through their belongings and search their home.

[00:19:35] Speaker 04:
And there's a separate claim on that?

[00:19:37] Speaker 03:
Yes.

[00:19:37] Speaker 03:
OK.

[00:19:38] Speaker 01:
But that's only in state court.

[00:19:41] Speaker 01:
You're not asserting a Fourth Amendment.

[00:19:42] Speaker 03:
No, no, we're not.

[00:19:43] Speaker 03:
We're focusing on the fact that the Andersons then ultimately

[00:19:49] Speaker 03:
instituted litigation by filing, I should say, presenting a tort claim act under California law.

[00:19:57] Speaker 03:
How did Chief Perez know that this was particularly, how should he have known this was obviously unconstitutional?

[00:20:05] Speaker 03:
Because he picked the method of retaliation that enhanced the threat in the first place.

[00:20:12] Speaker 03:
Anderson's home was attacked.

[00:20:14] Speaker 03:
And what he did was he presented a press release

[00:20:18] Speaker 03:
with embedded information about the address of the Andersons such that anyone with a rudimentary knowledge of how to conduct a Google search would be able to put the Andersons

[00:20:33] Speaker 03:
and that address together.

[00:20:34] Speaker 04:
Was there any other identifying information that would have tied the Andersons to this?

[00:20:41] Speaker 04:
So you file a tort claims.

[00:20:42] Speaker 04:
That is not publicly available, I take it, except for the fact that it was released to the public.

[00:20:47] Speaker 04:
The Pasadena Now article, when it highlights this, could somebody have gotten interested in this?

[00:20:52] Speaker 04:
Is there like a state FOIA opportunity to get at this?

[00:20:56] Speaker 03:
That I don't know.

[00:20:57] Speaker 03:
But the answer to the court's question is, in general, tort claim forms are public, except for particular information that might be protected by privacy.

[00:21:07] Speaker 04:
So even if it had come out, it wouldn't have given names or the address?

[00:21:12] Speaker 04:
It would give the name.

[00:21:13] Speaker 03:
But not the address.

[00:21:14] Speaker 03:
But the address was protected for a couple of reasons, because California government code sections protect the addresses of peace officers and federal investigators.

[00:21:24] Speaker 03:
So it wouldn't take a whole lot of work for someone to look at that press release, click the link embedded in it, listen to the audio of the police, look at the video, the body cameras of the police, body camera footage, by the way, that was refused to the Andersons for a year.

[00:21:46] Speaker 03:
Now all of a sudden it's readily available to anyone with a computer, and then

[00:21:51] Speaker 03:
and then work backwards to the Pasadena Now article.

[00:21:58] Speaker 03:
The defense position is that it takes two.

[00:22:01] Speaker 04:
Can I start there?

[00:22:02] Speaker 04:
Sure.

[00:22:02] Speaker 04:
Because I want to understand the whole context here.

[00:22:06] Speaker 04:
Your claim is really about the address, not about the names.

[00:22:09] Speaker 04:
Because the names, as I understand it, the names were not in the Pasadena Now article.

[00:22:14] Speaker 03:
The names were in the Pasadena.

[00:22:15] Speaker 03:
Oh, they were.

[00:22:16] Speaker 04:
So that's the link.

[00:22:17] Speaker 03:
That's the link.

[00:22:18] Speaker 03:
OK.

[00:22:18] Speaker 03:
They've got the names, and now they have the address.

[00:22:20] Speaker 03:
Someone searching has the names, and now they have the address.

[00:22:23] Speaker 04:
And the address would not have been otherwise available.

[00:22:25] Speaker 04:
If somebody said, I want to figure out where

[00:22:28] Speaker 04:
The Andersons live they could not have found that they couldn't have gone down to the the the courthouse and figured out What their address was or looked at a tax record?

[00:22:40] Speaker 03:
Well, they would have to look A tax record.

[00:22:43] Speaker 03:
I don't know.

[00:22:43] Speaker 03:
Frankly.

[00:22:44] Speaker 03:
That's that wasn't raised it.

[00:22:45] Speaker 03:
That wasn't raised here They wouldn't go to the courthouse.

[00:22:48] Speaker 03:
They would go to the city clerk's office It's an important distinction because the city clerk

[00:22:54] Speaker 03:
the city has an obligation to protect that private information.

[00:22:58] Speaker 04:
Well that's my question, so they would not have put that out.

[00:23:01] Speaker 04:
In theory, this information would not have been available, the address would not have been available anywhere else.

[00:23:06] Speaker 04:
Even if a common citizen, you could get it through a tax record or something like that, you wouldn't be able to do that in theory for the addresses.

[00:23:15] Speaker 03:
Correct, and if someone said I want to see the

[00:23:17] Speaker 03:
the torque claim form for this incident.

[00:23:21] Speaker 04:
It would have been blocked out.

[00:23:22] Speaker 03:
It would have been blocked out redacted in some way if if the city follows the law.

[00:23:27] Speaker 03:
So what I'm saying you're going back to my to my to what I was developing is that we have federal investigators who have his home has been attacked.

[00:23:37] Speaker 03:
whose safety has been at least threatened, and now the chief of all the possible responses to the incident picks the one that enhances that risk.

[00:23:49] Speaker 01:
So your friend on the other side brought up an analogy to Nieves, or never known how to say that.

[00:23:58] Speaker 01:
So there, even if the retaliatory motive is a but for a cause of the arrest, the court said, well, there's legitimate law enforcement purposes in being able to arrest people when you have probable cause.

[00:24:10] Speaker 01:
And so we won't.

[00:24:11] Speaker 01:
If there's probable cause, that'll defeat the retaliation claim.

[00:24:15] Speaker 01:
And I guess the analogy here would be there are legitimate

[00:24:18] Speaker 01:
law enforcement purposes in releasing information about what the police is doing and promoting transparency and public awareness and all that sort of thing.

[00:24:29] Speaker 01:
Why couldn't a reasonable officer have looked at NIOVS and thought about that principle and thought, well, I have this justification.

[00:24:40] Speaker 01:
for what I'm doing in terms of transparency.

[00:24:43] Speaker 01:
And so even if it's retaliatory, it might still be permissible.

[00:24:48] Speaker 01:
What's wrong with that line of reasoning?

[00:24:50] Speaker 03:
Well, because I can understand that the police might want to respond

[00:25:03] Speaker 03:
to the tort claim, now that it's become newsworthy.

[00:25:07] Speaker 03:
But the news report did not pinpoint the Anderson's address.

[00:25:13] Speaker 03:
And the news report didn't have any links that would pinpoint the address.

[00:25:20] Speaker 03:
The record is, and I apologize, I don't have the site in mind, but the record shows that when the city of Pasadena wanted to respond to the tort claim, it had a, I believe, lieutenant provide a response without any identifying information or any identifying links at all.

[00:25:39] Speaker 03:
So it's perfectly proper for the police chief to say, we think we didn't do anything right.

[00:25:45] Speaker 03:
Here's what happened and omit

[00:25:48] Speaker 03:
the most dangerous information that was in the press release.

[00:25:52] Speaker 03:
And that is the link to the home address.

[00:25:57] Speaker 03:
There was no legitimate public relations point or law enforcement point

[00:26:03] Speaker 03:
to enhancing the danger to the Andersons.

[00:26:06] Speaker 03:
As a matter of fact, if the chief of police, who presumably knows a great deal about the law of protecting police officers and investigators, had taken the time to think about it, and I'm sure he did because, as the district court said, the district court didn't think Chief Perez was incompetent.

[00:26:27] Speaker 03:
He thought it was retaliatory.

[00:26:29] Speaker 03:
He would have known the panoply of laws that protect this information.

[00:26:34] Speaker 03:
Government code sections that protect release of private information such as the home address of an investigator.

[00:26:42] Speaker 03:
government code sections that prevent posting that information.

[00:26:46] Speaker 04:
Pasadena Police Department policies that says... I mean, and just to put a finer point on it, because I get where you're going, I think, is your argument boils down to it's obvious that an officer should not have disclosed the address in any way, shape, or form.

[00:27:04] Speaker 03:
I agree with that, Your Honor.

[00:27:05] Speaker 04:
That seems to be your argument, and I think that's what we've got to grapple with.

[00:27:08] Speaker 04:
Is that enough?

[00:27:09] Speaker 04:
So let's get back to the obviousness point, because I mean, obviousness is rarely used.

[00:27:16] Speaker 04:
We've said that multiple times.

[00:27:19] Speaker 04:
That's a pretty hard standard to start imposing on government officials.

[00:27:27] Speaker 04:
What's your best case when we delve into the obviousness point, or is this just a fact-specific inquiry?

[00:27:36] Speaker 03:
As the court noted, it is a rare animal.

[00:27:41] Speaker 03:
And that means you're probably not going to find

[00:27:44] Speaker 03:
a case that is fact-specific.

[00:27:45] Speaker 04:
Can you give us something in the case law where a court has, I mean, what, I mean, obviousness, when I think of obviousness, I think of Hope versus Pelzer where Georgia, you know, hitched a black prisoner to a hitching post and the court was like, come on, you know, you just cannot do that.

[00:28:07] Speaker 04:
Everybody knows you cannot do that.

[00:28:10] Speaker 04:
Are there other cases of obviousness?

[00:28:12] Speaker 03:
I can't think of any case of obviousness that I would readily apply to this.

[00:28:19] Speaker 03:
However, I would say that state statutes can supply the obviousness element if the information is protected by statute and the chief of police is warned, do not disclose this information.

[00:28:32] Speaker 03:
This is highly sensitive.

[00:28:34] Speaker 03:
That means

[00:28:36] Speaker 03:
That means you take a thought, and then you take a harder thought before you do it.

[00:28:40] Speaker 03:
Because if the motive is retaliatory, and the district court found that there was enough there to show a retaliatory motive, there's also enough there in the policies and in the state statutes to say, you've got to put the brakes on.

[00:28:54] Speaker 03:
You ought to respond to the tort claim and to the news article, fine.

[00:28:59] Speaker 03:
But don't take that extra step.

[00:29:02] Speaker 02:
I'm actually... Mr. Stevens, I have a question for you about the Bain Act, which we were talking to your friend on the other side about.

[00:29:07] Speaker 02:
Do you have any authority to support your argument that posting a press release in body cam video is conduct and not speech?

[00:29:16] Speaker 03:
I think the press release is probably speech.

[00:29:19] Speaker 03:
I concede that point.

[00:29:22] Speaker 03:
But as the defense states,

[00:29:26] Speaker 03:
embedding the video camera, the body camera video and the audio recordings, sounds like conduct to me.

[00:29:34] Speaker 03:
Because if we're going to draw a distinction between what the press release says and what's embedded in the press release, it is conduct to add that and post that online.

[00:29:45] Speaker 03:
But let me.

[00:29:45] Speaker 02:
So you're arguing that simply because you can

[00:29:49] Speaker 02:
link or click the link that is in the press release that converts that press release, which you can see the speech, into conduct?

[00:29:58] Speaker 03:
Not because someone looking at it can do that, but because of the act of embedding it, the author's act of adding.

[00:30:06] Speaker 02:
What about the act of typing a press release?

[00:30:09] Speaker 03:
Well, the act of typing the press release is probably speech.

[00:30:13] Speaker 03:
The act of embedding audio and video of the incident, I think, is conduct.

[00:30:19] Speaker 03:
But that being said, Your Honor, let me.

[00:30:21] Speaker 04:
I thought your argument was more that it was kind of basically an incitement to violence, and that's what turned it into action.

[00:30:28] Speaker 04:
I'm not sure I'm following your response here.

[00:30:32] Speaker 03:
Well, let me short circuit this discussion.

[00:30:36] Speaker 03:
We did not develop it in our brief because we think the argument is waived.

[00:30:40] Speaker 03:
But I would concede that if the act of embedding the audio and video recordings is considered speech, then the Bain Act probably

[00:30:52] Speaker 03:
cause of action is probably ineffective.

[00:30:57] Speaker 02:
And do you know the answer to Judge Miller's question about whether I seem to have a recollection that there is a Monell claim that is still alive?

[00:31:06] Speaker 02:
Do you know if there is any federal claim that's still- It's my impression that it's not, but I can- If we disagree with your position with respect to the qualified immunity issue, then would there be any remaining federal claim in this case?

[00:31:22] Speaker 03:
I have to confess, Your Honor, I have not studied that issue.

[00:31:26] Speaker 03:
But if the court would like, I'd be happy to send the court with copy to counsel a brief letter stating our position on that.

[00:31:34] Speaker 04:
Just to put a finer point on it, if there is no, let's assume that there's no federal claim, we can't do anything.

[00:31:40] Speaker 04:
We'd still have to remand it to the district court.

[00:31:42] Speaker 03:
I agree with that, yes.

[00:31:45] Speaker 03:
I have 32 seconds left.

[00:31:49] Speaker 03:
Okay.

[00:31:50] Speaker 03:
If there are no other questions, we'll submit.

[00:31:52] Speaker 03:
Thank you.

[00:31:53] Speaker 04:
Thank you, counsel.

[00:31:55] Speaker 04:
You have two minutes for rebuttal.

[00:32:01] Speaker 00:
Thank you.

[00:32:01] Speaker 00:
I will strive to make this quick.

[00:32:04] Speaker 00:
The Monell ruling is at pages 20 to 21 of the ER.

[00:32:08] Speaker 00:
The court denied cross motions for summary judgment and no qualified immunity on the Monell claim.

[00:32:15] Speaker 04:
Those are still pending.

[00:32:17] Speaker 00:
I believe so.

[00:32:20] Speaker 00:
There's a dispute about whether the addresses in the tort claims were public or not.

[00:32:24] Speaker 00:
That's briefed in our briefs, the opening brief 39 to 43, the reply brief 17 to 22.

[00:32:33] Speaker 00:
To clarify, the names and the addresses are not in the press release.

[00:32:37] Speaker 00:
The names are in the article.

[00:32:38] Speaker 00:
Right.

[00:32:39] Speaker 00:
And the block where it happened is in the article.

[00:32:42] Speaker 00:
The block says it's a 600 block of whatever street.

[00:32:46] Speaker 04:
The address is... What about this?

[00:32:48] Speaker 04:
Could they get this information anywhere else?

[00:32:50] Speaker 00:
Well, that goes to the question of whether the tort claim was public or not public.

[00:32:53] Speaker 00:
And we've argued that even if the tort claim was not public, still qualified immunity.

[00:32:58] Speaker 04:
My question is, I think, a little more nuanced than that.

[00:33:01] Speaker 04:
If somebody read the article and they wanted to figure out what the actual address was, and now they have the name and the block, could they have pieced that together?

[00:33:09] Speaker 00:
If the tort claim was public, because if the tort claim was public when presented, then under the California Public Records Act, it would be obtainable.

[00:33:17] Speaker 04:
Well, but it wouldn't have had the address on it.

[00:33:19] Speaker 00:
Yeah, it has the address in it.

[00:33:20] Speaker 04:
I know, but okay.

[00:33:21] Speaker 04:
I thought that they could disclose it, and it was public, but not the address.

[00:33:26] Speaker 00:
That's part of what's disputed, is there are a couple of California Public Records Act statutes.

[00:33:31] Speaker 00:
about what is and isn't releasable in response to a CPRA request.

[00:33:37] Speaker 04:
So my question is outside of all of that.

[00:33:40] Speaker 04:
Could you go down to the county courthouse and look at the tax records and figure it out?

[00:33:43] Speaker 04:
You don't know.

[00:33:43] Speaker 00:
It's not been briefed or argued.

[00:33:47] Speaker 00:
I will say also,

[00:33:49] Speaker 00:
that whether it's obvious that this was public or not public under a statute, whether a statute would have required redaction, does not answer the question here, which is whether it was obvious that it was a First Amendment violation.

[00:34:00] Speaker 00:
That case is Davis 468 US 183, which says that just violations of statutes don't convert something into defeating qualified immunity.

[00:34:10] Speaker 00:
And I will make this my last point, that the plaintiffs say that they don't have any obvious case that's analogous to this, which

[00:34:18] Speaker 00:
Sort of circles back to is there a case on point and there isn't.

[00:34:20] Speaker 00:
And so now we're just back to obviousness.

[00:34:22] Speaker 00:
And if the general principles about retaliation being improper were enough, then Moore should have come out the other way.

[00:34:28] Speaker 00:
Then Riley should have come out the other way.

[00:34:31] Speaker 00:
And any retaliation case essentially should come out the other way when we get to qualified immunity.

[00:34:35] Speaker 00:
But that is the kind of high level generalization that the Supreme Court has said that we are not to engage in when we come

[00:34:41] Speaker 00:
to qualified immunity and my time has passed up so I'm happy to answer questions but otherwise I will stop.

[00:34:46] Speaker 04:
I think we're good and we again appreciate the good arguments from both counsel that are going to help us decide this case.

[00:34:53] Speaker 04:
The case is now submitted and we're in recess for the day.

[00:34:57] Speaker 00:
Thank you Your Honor.