[00:00:00] Speaker 01:
Forth?

[00:00:02] Speaker 01:
Yes, Your Honor.

[00:00:04] Speaker 01:
Good morning.

[00:00:05] Speaker 01:
May it please the court?

[00:00:06] Speaker 01:
I am Assistant Attorney General David Force on behalf of Trooper Sanders, Shiree, and Sergeant Falk.

[00:00:12] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:15] Speaker 01:
This court should reverse the denial of qualified immunity for two reasons.

[00:00:19] Speaker 01:
First, as to each claim, Mr. Serrano failed to identify any legal authority that satisfies the clearly established element of qualified immunity.

[00:00:27] Speaker 01:
This failure alone is a sufficient basis to reverse the denial of qualified immunity.

[00:00:32] Speaker 01:
and second, based on the undisputed material facts, Mr. Serrano has failed to show that the officers violated his constitutional rights.

[00:00:41] Speaker 01:
This is notably evident when plaintiffs failed to respond to any arguments regarding the actions of Trooper Shirey or Sergeant Falk effectively conceding those claims.

[00:00:51] Speaker 00:
Counsel, can I ask you, this case is here, you're appealing qualified immunity because we can only

[00:00:59] Speaker 00:
review at this juncture, a denial of summary judgment based on qualified immunity, right?

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

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

[00:01:08] Speaker 00:
Nowhere in this ruling does the district court judge mention qualified immunity.

[00:01:16] Speaker 00:
And in fact, the language says, the differing versions of the event make it clear that genuine issues and material fact exists regarding most of the claims brought by plaintiff.

[00:01:29] Speaker 00:
So how do we know that this is in fact a denial of the motion

[00:01:39] Speaker 00:
legal claim or defense of qualified immunity?

[00:01:42] Speaker 01:
Sure.

[00:01:43] Speaker 01:
As we identified in our supplemental authorities to the court in response to this jurisdictional question, we identified this court's precedent that says you can look at the underlying arguments asserted before the district court.

[00:01:56] Speaker 01:
In this case, a review of those briefing clearly established that the qualified immunity was the sole basis for denial of the federal claims.

[00:02:07] Speaker 01:
Moreover,

[00:02:08] Speaker 00:
But wouldn't you have to, I mean, the analysis would have to be taking the facts in the light most favorable to the plaintiff, right?

[00:02:20] Speaker 00:
Yes.

[00:02:21] Speaker 00:
That the law was not clearly established.

[00:02:24] Speaker 01:
That is the second part of the jurisdictional argument.

[00:02:27] Speaker 01:
First off, this court in, I believe it's Guy Bull if I'm pronouncing that correctly, looked at a factually similar decision where the district court didn't address qualified immunity in its order and this court effectively assumed that it was an implicit denial of the qualified immunity and therefore had jurisdiction.

[00:02:48] Speaker 00:
We have discretion to do that, but I don't know that we are compelled to do that.

[00:02:54] Speaker 01:
And as for the... You're not responding.

[00:02:56] Speaker 00:
We have discretion, but it's not mandatory that we do that.

[00:03:01] Speaker 01:
Well, the court below clearly denied our motion for dismissal based on qualified immunity.

[00:03:08] Speaker 00:
I guess what I would think would be best in this sort of situation is that we

[00:03:14] Speaker 00:
do some sort of a limited remand to find out the basis for the denial rather than go through and analyze the claims that

[00:03:22] Speaker 00:
in the first instance.

[00:03:24] Speaker 01:
But under this court's analysis and the analysis under the Barron's case, this court can assume for purposes of summary judgment and for this court to review the facts, the undisputed material facts in this case.

[00:03:40] Speaker 00:
And in fact, part... No, no, we don't do... We take the facts in the light most favorable to the

[00:03:47] Speaker 00:
non-moving parties.

[00:03:48] Speaker 01:
Yes.

[00:03:49] Speaker 01:
And in this case, the vast majority, if not all, of the material facts in this case are actually not disputed.

[00:03:55] Speaker 01:
If you look at the record and you look at what Mr. Serrano says and what Trooper Sanders says and what is captured on the dash camera videos, those are all consistent with one another.

[00:04:08] Speaker 01:
And the only thing that is in real dispute are legal conclusions from the facts from that night.

[00:04:13] Speaker 02:
I guess to go back to Judge Wardlaw's earlier question, I take it you would agree that to the extent that this is a order from the district court that analyzes qualified immunity, it does it very badly in that it doesn't say anything about it at all.

[00:04:28] Speaker 02:
So would you have any objection to our asking the district court to actually explain what it was thinking in terms of qualified immunity so that we could review that?

[00:04:42] Speaker 01:
We wouldn't have an objection.

[00:04:46] Speaker 01:
We just believe that this court is in the same situation as the district court because it is a de novo review of that district court decision.

[00:04:54] Speaker 01:
And it is clear from the briefing in this case that the clearly established element that is the plaintiff's burden to establish has not been met, given the undisputed material facts in this case.

[00:05:08] Speaker 01:
So given that, you could remand and ask for clarification.

[00:05:15] Speaker 01:
However, this court is in just a suitable position to find that the clearly established element of the qualified immunity analysis hasn't been met by the plaintiff.

[00:05:23] Speaker 04:
You know, I have to say I'm sympathetic with your argument to the following extent.

[00:05:27] Speaker 04:
Qualified immunity is not merely immunity from damages.

[00:05:31] Speaker 04:
It's immunity from going to trial.

[00:05:33] Speaker 04:
I mean, the Supreme Court's been very clear about that.

[00:05:35] Speaker 04:
Yes.

[00:05:36] Speaker 04:
And the district judge says, you're going to trial, which means that there was the denial of the argument in favor of qualified immunity.

[00:05:43] Speaker 04:
Now, the district judge didn't say anything to justify the conclusion, but the conclusion necessarily implies a rejection of the qualified immunity.

[00:05:53] Speaker 04:
So far, so good for you.

[00:05:56] Speaker 04:
And my colleagues may or may not agree with me on that point.

[00:06:01] Speaker 04:
But even assuming that we have a ruling by the district judge denying qualified immunity You then say and all the facts are clear.

[00:06:11] Speaker 04:
Well, maybe maybe not and we know that You don't get to appeal it if there are quality if there are facts that are in dispute It seems to me again in favor of Europe side the facts with respect to excessive force that is to say does putting his hand on his holstered gun and

[00:06:30] Speaker 04:
constitute excessive force.

[00:06:31] Speaker 04:
I don't think there's anything in dispute.

[00:06:34] Speaker 04:
On the other hand, the unjustified arrest claim and the First Amendment claim, I think there are a fair number of facts that could be disputed.

[00:06:42] Speaker 04:
How do you respond to my saying that with respect to the arrest and the First Amendment claims?

[00:06:47] Speaker 01:
Well, as to the arrest, again, what appears to be disputed in the record is whether or not probable cause was established.

[00:06:56] Speaker 01:
But the underlying facts of the case,

[00:07:00] Speaker 01:
In this case, Trooper Sanders ordering Mr. Serrano from the scene, his refusal to leave the scene.

[00:07:07] Speaker 01:
Those are all undisputed material facts.

[00:07:10] Speaker 00:
Let's take those facts.

[00:07:12] Speaker 00:
Doesn't Mr. Serrano have a First Amendment right to be at a public scene and to observe and to photograph if he wished to?

[00:07:23] Speaker 00:
Yes, he does.

[00:07:25] Speaker 04:
To the extent the facts are undisputed, you lose.

[00:07:29] Speaker 01:
That's another way of saying what I just said.

[00:07:34] Speaker 01:
Even if this court does find a question of fact on the constitutional aspect of the analysis, the clearly established element still hasn't been met.

[00:07:44] Speaker 01:
Because as the court in the city of Seattle versus Abercrombie

[00:07:49] Speaker 01:
identified that law enforcement officers have a significant governmental interest both in facilitating a thorough investigation and assuring the safety of everyone at the scene, including the bystanders and suspects and officers, by excluding people from that scene.

[00:08:05] Speaker 01:
And that is what Trooper Sanders had.

[00:08:08] Speaker 00:
And in this case- He arrested Sanders for knowingly hindering Trooper Sanders' duties.

[00:08:17] Speaker 00:
I see it at most as a question of fact, whether he did that because he was just standing there.

[00:08:22] Speaker 00:
He was doing nothing.

[00:08:24] Speaker 01:
Actually, Mr. Serrano himself disputes that he was doing nothing.

[00:08:28] Speaker 01:
He was actively engaging.

[00:08:30] Speaker 00:
He asked a question.

[00:08:31] Speaker 00:
Can I take the car?

[00:08:33] Speaker 01:
Yes.

[00:08:33] Speaker 01:
And then he, and then he refused to the lawful command to leave the scene.

[00:08:39] Speaker 04:
And why was that a lawful command?

[00:08:41] Speaker 04:
Why was he required to leave the scene?

[00:08:43] Speaker 04:
Just because the officer says you have to do something doesn't necessarily mean you have to do it.

[00:08:47] Speaker 01:
But Washington recognizes that is a significant governmental interest and a significant interest for the officers to restrict access to the scene.

[00:08:57] Speaker 02:
Is there a, because Abercrombie involved an ordinance that was specifically about you have to leave the scene when ordered to.

[00:09:04] Speaker 02:
So under, but under

[00:09:06] Speaker 01:
9a 76.0 20 is there Washington authority that says that a person violates that when they Refuse the command to leave the seat leave the scene There is no cited authority one way or the other and that is why the clearly established element hasn't been met in this particular case is that Washington law and neither this court in constitutional analysis under that statute have held

[00:09:32] Speaker 01:
that that action is a clearly established violation of the law.

[00:09:37] Speaker 01:
And that's why the clearly established element has not been met by the plaintiff in this case.

[00:09:43] Speaker 02:
So you think there needs to be a case that says that there's no probable cause for an arrest

[00:09:59] Speaker 02:
What do you think that they need to show?

[00:10:02] Speaker 01:
Sure.

[00:10:03] Speaker 01:
Well, if you look at the City of Seattle case, while that was not addressing probable cause, it addressed the First Amendment protections of Mr. Abercrombie in that particular case.

[00:10:13] Speaker 01:
That case did premise the fact on that Mr. Abercrombie was arrested for refusing to leave the scene of the incident.

[00:10:21] Speaker 01:
That alone

[00:10:23] Speaker 01:
establishes that trooper Sanders had the lawful right to exclude him from the scene based upon that reading of that case.

[00:10:30] Speaker 02:
But that was a case that involved a statute or an ordinance, I think, that gave the officers authority to exclude people from the scene.

[00:10:38] Speaker 02:
So he's in a different jurisdiction that doesn't have that ordinance.

[00:10:43] Speaker 02:
So how does that case help him?

[00:10:45] Speaker 01:
Well, it's the only case on point that's cited in this case that talks about excluding officers can exclude individuals from the scene of an incident.

[00:10:55] Speaker 00:
But wasn't, at the time, wasn't his brother already, when Mr. Serrano arrived, wasn't the brother already arrested, handcuffed, and sitting in the cop car?

[00:11:07] Speaker 01:
Yes.

[00:11:07] Speaker 01:
Okay, so what was he interfering with?

[00:11:10] Speaker 01:
At that point in time, Trooper Sanders still had certain aspects of his arrest to complete.

[00:11:17] Speaker 01:
He was in the process of communicating with dispatch regarding preparations to complete the BAC.

[00:11:24] Speaker 01:
He was waiting for the tow truck to arrive to complete his

[00:11:29] Speaker 01:
his tow and impound inventory record, which is in the record at E-236.

[00:11:37] Speaker 01:
And he was communicating with dispatch to ensure that a public defender would be available if Mr. Robert Serrano requested one during the BAC procedure.

[00:11:47] Speaker 01:
So he was still actively doing his official duties.

[00:11:52] Speaker 01:
And that's all that 9A-76020 requires is that

[00:11:59] Speaker 01:
he be delayed in his official duties.

[00:12:01] Speaker 04:
So how much time elapsed from the time when Mr. Serrano starts interacting with the office and the arrest?

[00:12:10] Speaker 01:
The dash camera has that explicitly.

[00:12:12] Speaker 01:
I believe it's approximately two minutes.

[00:12:14] Speaker 04:
Approximately?

[00:12:15] Speaker 01:
Two minutes.

[00:12:15] Speaker 04:
I thought it was 90 seconds, but let's take two minutes.

[00:12:18] Speaker 01:
Yeah.

[00:12:18] Speaker 04:
So you're saying that two minutes of back and forth between them as he's trying to see if he can save the car from being impoundment.

[00:12:26] Speaker 04:
even though all the actual physical movement with respect to his arrested brother's completed, you say that's interference?

[00:12:34] Speaker 01:
Yeah, it's not just interference.

[00:12:35] Speaker 01:
The statute actually says has willfully hinders delays or obstruction.

[00:12:40] Speaker 01:
In this case, he delayed his actions.

[00:12:44] Speaker 04:
But there's the word willful in there.

[00:12:46] Speaker 04:
He's trying to find out, listen, can I save this car from being impounded?

[00:12:50] Speaker 04:
And I'll give you your time estimate.

[00:12:52] Speaker 04:
And he spends two minutes trying to establish that.

[00:12:55] Speaker 04:
And he's then arrested for his trouble.

[00:12:59] Speaker 04:
Yes.

[00:13:00] Speaker 04:
That's a willful delay?

[00:13:01] Speaker 01:
Yes, because unlike the other individual who retreated that night, because there was two individuals that approached Trooper Sanders that night.

[00:13:10] Speaker 01:
I understand he could have done the way the other guy did.

[00:13:12] Speaker 01:
The question is, what he did was that willful.

[00:13:15] Speaker 01:
Yes, because he refused five commands to leave the scene.

[00:13:20] Speaker 01:
And we're looking at... The commands may or may not have been lawful.

[00:13:24] Speaker 01:
But we're looking at a probable cause standard, not a too-convict standard.

[00:13:28] Speaker 01:
And so in this particular case, was it reasonable for Trooper Sanders to believe that he had probable cause to establish a violation of 9A-76020 that night?

[00:13:41] Speaker 01:
And based upon Mr. Serrano's refusal to abide by his commands, he had a reasonable belief to that effect.

[00:13:51] Speaker 02:
And you're saying that there's no authority in Washington or otherwise that would have alerted him that that was not adequate for probable cause?

[00:14:01] Speaker 01:
There's no authority in Washington that says two minutes is enough, five minutes is enough, what the distances are.

[00:14:09] Speaker 01:
So there's no authority that would have placed Trooper Sanders on notice that his actions were.

[00:14:14] Speaker 01:
violations of the law.

[00:14:15] Speaker 04:
What's troubling to me about this case is basically he's being he's mouthing off for for what his side is a good reason he wants to save the car from being impounded and for his troubles he gets arrested after two minutes

[00:14:29] Speaker 04:
He's 30 feet away.

[00:14:31] Speaker 04:
He makes no motion of any threat.

[00:14:35] Speaker 04:
He lifts his shirt to show that he has no gun.

[00:14:37] Speaker 04:
The officer is quite clear, I think, cannot imagine that he's under any threat of physical danger.

[00:14:44] Speaker 04:
That's a pretty hair-trigger officer.

[00:14:48] Speaker 01:
Well, Your Honor, the issue on the, and I'm assuming you're talking about the probable cause analysis here, is that there is no, even if this court were to accept that and find that it was a question of fact, that is only the first element.

[00:15:04] Speaker 01:
It doesn't address the clearly established element of qualified immunity, and that clearly hasn't been met.

[00:15:09] Speaker 00:
If it is really a fact in dispute, then we don't have jurisdiction.

[00:15:15] Speaker 01:
No.

[00:15:17] Speaker 01:
You have jurisdiction if this court is asked to analyze questions of fact.

[00:15:24] Speaker 01:
We're not suggesting that you analyze questions of fact.

[00:15:26] Speaker 01:
We're suggesting you accept the plainest version of the events or the undisputed material facts that night.

[00:15:33] Speaker 01:
And in that scenario, the clearly established element hasn't been met.

[00:15:40] Speaker 01:
Thank you.

[00:15:41] Speaker 01:
We'd ask that the court reverse the denial.

[00:15:44] Speaker 00:
Thank you.

[00:15:46] Speaker 00:
Okay, Mr. Phelps.

[00:15:51] Speaker 03:
Good morning, Your Honor.

[00:15:53] Speaker 03:
Doug Phelps on behalf of Mr. Daniel Serrano for the plaintiff.

[00:16:02] Speaker 03:
I would point out that this interaction began after the brother was already arrested.

[00:16:10] Speaker 03:
He was in the back of the squad car.

[00:16:13] Speaker 03:
The trooper was in the front of the squad car.

[00:16:18] Speaker 03:
The brother was handcuffed in the car.

[00:16:21] Speaker 03:
And Daniel Serrano arrives on the scene and exits his car, and the trooper

[00:16:30] Speaker 03:
quickly hops out of his squad car in the front seat.

[00:16:34] Speaker 03:
And Mr. Daniel Serrano is a number of feet behind the squad car.

[00:16:42] Speaker 03:
And the trooper approaches Daniel Serrano.

[00:16:48] Speaker 03:
The testimony was they were 30 or more feet apart at the time that the trooper approached him.

[00:16:56] Speaker 03:
And the trooper immediately, Daniel Serrano has no weapons.

[00:17:02] Speaker 03:
There's no indication that he threatened, hollered, intimidated, or in any way confronted the officer other than getting out of his car.

[00:17:13] Speaker 03:
And the officer comes around and immediately hangs onto his firearm with a Hispanic

[00:17:21] Speaker 03:
American citizen who has no weapons, is not being threatening.

[00:17:28] Speaker 03:
And Mr. Serrano throws up his arms and says, whoa, don't shoot me, and pulls up his belt line or the shirt to show he has no weapons.

[00:17:39] Speaker 03:
And the trooper's response is,

[00:17:42] Speaker 03:
We want to go home tonight.

[00:17:44] Speaker 03:
People like you are killing us out here.

[00:17:48] Speaker 03:
And that's the ER 73.

[00:17:49] Speaker 03:
Mr. Serrano indicates that ER 73 through 74, that he believed he was going to be killed that night.

[00:17:59] Speaker 03:
He followed the orders of the officer, went to the ground.

[00:18:03] Speaker 03:
And the officer told him he had to leave.

[00:18:06] Speaker 03:
And at some point, Mr. Serrano says, you've

[00:18:11] Speaker 03:
I know I have rights.

[00:18:13] Speaker 03:
I have a right to observe.

[00:18:16] Speaker 03:
And I'm here.

[00:18:17] Speaker 03:
I'm here.

[00:18:20] Speaker 03:
And it's a public area.

[00:18:23] Speaker 03:
And the officer proceeds.

[00:18:27] Speaker 03:
He asks for a sergeant to respond.

[00:18:31] Speaker 03:
Another officer responds.

[00:18:34] Speaker 03:
And one of the troopers says, we have a right to put our hands on our firearm.

[00:18:39] Speaker 03:
And you may not like it, but that's true.

[00:18:41] Speaker 03:
And Mr. Serrano continues and even apologizes on the way to the police station.

[00:18:50] Speaker 04:
Here's a question I've got in terms of sort of delay imposed or created by Mr. Serrano's activity.

[00:18:57] Speaker 04:
Do we know that the officer would have had to stay there until the arrival of the tow truck?

[00:19:04] Speaker 03:
Well, there were other officers that arrived on the scene.

[00:19:08] Speaker 03:
As I told you, there was a sergeant that arrived.

[00:19:10] Speaker 04:
Well, I'm trying to figure out what the actual delay is, because this episode, if I'm talking about the entire scenario, isn't complete until we get the car towed.

[00:19:20] Speaker 03:
Yeah, they would have stayed there until the car was towed.

[00:19:23] Speaker 03:
One of the officers would have.

[00:19:24] Speaker 04:
So is there, in fact, a delay by the fact that there was 90 seconds to two minutes of this exchange when the tow truck hasn't arrived yet?

[00:19:31] Speaker 03:
It would be a minimal delay, if any, and I would suggest there wasn't any.

[00:19:35] Speaker 04:
It didn't delay the tow truck one day.

[00:19:37] Speaker 03:
No.

[00:19:38] Speaker 03:
No, the tow truck wasn't there yet and didn't arrive after all this was done.

[00:19:41] Speaker 04:
I'm trying to figure out if there's a delay in the actual functioning of the officers.

[00:19:45] Speaker 03:
I would say there wasn't.

[00:19:47] Speaker 02:
And you need to show that the officer didn't have probable cause to believe that there was a delay, right?

[00:19:56] Speaker 03:
Well, there was no delay.

[00:19:58] Speaker 03:
And without delay, there wouldn't be an obstruction or a delay or a hindrance.

[00:20:02] Speaker 02:
Right.

[00:20:02] Speaker 02:
But the question is not, do we, looking at everything that happened, think that there was or wasn't a delay.

[00:20:09] Speaker 02:
The question is,

[00:20:10] Speaker 02:
Would it have been apparent to every reasonable officer that there was not probable cause to think that there was delay?

[00:20:17] Speaker 02:
Isn't that the question on qualified immunity?

[00:20:25] Speaker 03:
Candidly, I'll tell you what I think happened.

[00:20:27] Speaker 03:
They don't want anybody there observing what's going on.

[00:20:30] Speaker 03:
And so they tell him to leave.

[00:20:32] Speaker 03:
And then their response is, if you don't leave, when we tell you to leave, you go to jail.

[00:20:37] Speaker 02:
Well, that may be what happened.

[00:20:39] Speaker 02:
But for you to overcome qualified immunity, you need to show that it was clearly established that that was an excess of his authority, right?

[00:20:52] Speaker 03:
Well, I think that's a question of fact for the jury on whether or not they're a probable cause.

[00:20:57] Speaker 02:
Well, but there's a legal question.

[00:20:58] Speaker 02:
I mean, you heard the colloquy that several of us had with your friend on the other side about whether refusing a command to leave violates 9A 76020.

[00:21:13] Speaker 02:
But it's not apparent to me that he's right about that.

[00:21:15] Speaker 02:
But you need to show that it's apparent that he's wrong about that.

[00:21:18] Speaker 03:
Well, they were wrong about it, because the case

[00:21:23] Speaker 03:
The First Amendment case on it is F-O-D-Y-C-E versus City of Seattle, 55 3rd, 436 and 439, a 1995 case that says that you have a First Amendment right to be in a public space and observe and or record what occurred in this case.

[00:21:48] Speaker 03:
My client, again, was Hispanic fellow and said he had a concern about the way the police had reacted with minorities and said that he had had incidents with Spokane police.

[00:22:01] Speaker 03:
And he was concerned about his brother's safety as well as wanting to pick up the car.

[00:22:07] Speaker 03:
So this is a case where he had a right to be in a public space under the First Amendment.

[00:22:13] Speaker 03:
and observed the police activity.

[00:22:16] Speaker 03:
And they order him to leave.

[00:22:18] Speaker 03:
And he says, I don't have to leave.

[00:22:21] Speaker 03:
They respond by ordering him to the ground and handcuffing him and arresting him for obstructing.

[00:22:27] Speaker 03:
Incidentally, his brother was charged with DUI.

[00:22:31] Speaker 03:
He turned out to be below the legal limit.

[00:22:34] Speaker 03:
And they released him and didn't take him to jail.

[00:22:38] Speaker 03:
And Daniel Serrano.

[00:22:39] Speaker 03:
One of the troopers tells him you're going to go to jail tonight.

[00:22:44] Speaker 03:
They booked him in the jail when the brother charged with DUI was released without anything.

[00:22:50] Speaker 03:
Kind of some roadside punishment to make him bond out of jail for the obstructing charge and the brother was released without by the police at night.

[00:23:07] Speaker 03:
There is a constitutional violation.

[00:23:09] Speaker 03:
And I would submit that under the case law that we cited in our brief, when the officer hangs onto the firearm, when he's confronted by an unarmed citizen who's not threatening him or not confronting him, not resisting him, following instructions that, as we cited in our brief, so let me get to that.

[00:23:39] Speaker 03:
that it's the victim's apprehension by the overt acts of the law enforcement officer or any citizen under 50-win-ap-277-286-748 state versus hope that constitutes an attempted assault by the law enforcement officer when he creates in the

[00:24:07] Speaker 03:
the victim reasonable apprehension or fear that he's about to be shot.

[00:24:14] Speaker 03:
And remember, we're dealing with an unarmed, non-threatening individual at the time that the officer is holding onto his firearm, and it was clearly

[00:24:27] Speaker 03:
created an apprehension, not only in Mr. Serrano, but in the gentleman that was across the street that there was about to be a shooting, because they both threw up their hands and they both reacted, certainly Mr. Serrano, by saying, whoa, don't shoot me.

[00:24:46] Speaker 00:
When did this episode take place?

[00:24:48] Speaker 03:
I'm sorry?

[00:24:49] Speaker 00:
When did this incident take place?

[00:24:51] Speaker 03:
It was on a weekend night.

[00:24:53] Speaker 03:
I can't tell you the exact date.

[00:24:56] Speaker 03:
And it was later at night.

[00:24:59] Speaker 03:
After midnight.

[00:25:00] Speaker 00:
Month, year?

[00:25:01] Speaker 03:
I'm sorry?

[00:25:04] Speaker 00:
May 15, 2019.

[00:25:05] Speaker 03:
See if I can find the date for you.

[00:25:12] Speaker 00:
I found it.

[00:25:13] Speaker 00:
Thank you.

[00:25:14] Speaker 00:
I found it.

[00:25:15] Speaker 00:
All right.

[00:25:15] Speaker 00:
Thank you.

[00:25:15] Speaker 00:
May 15, 2019.

[00:25:18] Speaker 03:
So it's a case of a citizen that responds to the scene.

[00:25:26] Speaker 03:
He asks some questions.

[00:25:29] Speaker 03:
The police respond by grabbing a hold of a firearm and ordering him to leave from an area where he has the right to be.

[00:25:37] Speaker 03:
And he has the First Amendment right to be there.

[00:25:41] Speaker 03:
And that results in his arrest.

[00:25:44] Speaker 04:
Let me ask you this.

[00:25:45] Speaker 04:
If the arrest was proper,

[00:25:49] Speaker 04:
Doesn't that tell us that once the arrest is proper, he no longer has a First Amendment right to be there?

[00:25:55] Speaker 03:
I don't think so.

[00:25:57] Speaker 04:
So you have a right to remain somewhere even when somebody else has a right to arrest you?

[00:26:01] Speaker 03:
Well, he has a First Amendment right to be there.

[00:26:04] Speaker 04:
Well, until he's properly arrested.

[00:26:06] Speaker 03:
Well, but he wasn't properly arrested.

[00:26:10] Speaker 04:
That's my question.

[00:26:11] Speaker 04:
Does this all hinge on, even the First Amendment question, does this all hinge on the propriety of the arrest?

[00:26:18] Speaker 03:
No.

[00:26:19] Speaker 03:
Because he has the right to be there.

[00:26:20] Speaker 04:
Why not then?

[00:26:21] Speaker 04:
Because if the arrest was proper, he no longer has a First Amendment right to be there.

[00:26:26] Speaker 03:
Well, he had a First Amendment right to be there up until the arrest, at any rate.

[00:26:31] Speaker 00:
Well, he had a First Amendment right to be there.

[00:26:34] Speaker 00:
And then the question is whether or not he did something that a reasonable police officer could determine was willful hindrance of the officer's duties.

[00:26:46] Speaker 03:
Well, our position is... We're not answering the question.

[00:26:51] Speaker 04:
I'm just trying to figure out what the questions are and whether or not the First Amendment right persists after he's properly arrested.

[00:26:59] Speaker 04:
I'm not deciding yet whether he's been properly arrested, but if we concede that it's a proper arrest, I don't see how he has a First Amendment right to be there after there's a proper right, after the arrest is proper.

[00:27:10] Speaker 03:
I think that the court below rightly said that there is a question of fact about what occurred.

[00:27:17] Speaker 04:
No, I get that.

[00:27:18] Speaker 03:
And certainly, if there is a question of fact about what occurred, then there is a question of whether or not there was probable cause.

[00:27:27] Speaker 03:
But again, probable cause is the jury determination.

[00:27:32] Speaker 00:
All right.

[00:27:33] Speaker 00:
Thank you.

[00:27:33] Speaker 00:
Thank you.

[00:27:36] Speaker 00:
Did you need a minute?

[00:27:37] Speaker 00:
Did you want a minute?

[00:27:38] Speaker 00:
OK, you can have a minute.

[00:27:43] Speaker 01:
First, I want to answer the question that Judge Fletcher, you posed about the probable cause.

[00:27:49] Speaker 01:
We filed a supplemental authority citing the Nevis case, which said exactly that, that probable cause is an absolute defense to a First Amendment retaliation arrest claim.

[00:28:01] Speaker 01:
If there was probable cause, that would mean that the First Amendment claim disappears.

[00:28:08] Speaker 01:
As for the comment that counsel brought up, that an officer said that we want to go home that night, the record indicates, according to Mr. Serrano, that that was made by Sergeant Falk.

[00:28:23] Speaker 01:
He said that in his deposition that he related that to the supervisor at the scene.

[00:28:29] Speaker 01:
So that wasn't made by Trooper Sanders during the time when the excessive force claim was alleged.

[00:28:37] Speaker 01:
That's consistent with the dash camera video, which documents the entire conversation that trooper Sanders had that night.

[00:28:48] Speaker 01:
What is missing in this case is any evidence of the clearly established element.

[00:28:53] Speaker 01:
And that was evident in the argument of my opposing counsel that there was no argument or no authority justifying finding that what trooper Sanders knew that night was clearly established a violation of the law.

[00:29:08] Speaker 01:
And finally, even if Trooper Sanders was mistaken as to his level of probable cause, that is the exact reason why the qualified immunity now exists, is to give protection to officers who make reasonable mistakes.

[00:29:24] Speaker 01:
And that is the whole purpose, and that's why qualified immunity should have been granted.

[00:29:29] Speaker 01:
Thank you.

[00:29:30] Speaker 01:
We'd ask that the court reverse the decision.

[00:29:32] Speaker 00:
Thank you, Council, Serrano.

[00:29:34] Speaker 00:
Okay, Serrano B. Sanders is submitted, and we'll take up ND versus Reykdal.