[00:00:04] Speaker 01:
If I may reserve four minutes of my open chip for rebuttal.

[00:00:08] Speaker 04:
Thank you.

[00:00:09] Speaker 04:
Please watch the clock.

[00:00:12] Speaker 01:
I will.

[00:00:13] Speaker 01:
Or do my best, I should say.

[00:00:19] Speaker 01:
May it please the court.

[00:00:20] Speaker 01:
My name is Richard Winnery.

[00:00:22] Speaker 01:
I represent Freedom Fandler.

[00:00:27] Speaker 01:
After the strong exculpatory evidence

[00:00:32] Speaker 01:
developed in the officer's investigation, smothered the probable cause to believe that Freedom Fandler knowingly remained in a Walmart where he had purchased and paid items and was attempting to leave, that he knowingly remained to finish those items.

[00:00:57] Speaker 01:
The officers made a decision not to arrest but to trespass Freedom Fandler.

[00:01:05] Speaker 01:
And had they just gone forward with that, we wouldn't be here today.

[00:01:10] Speaker 01:
Instead, the officers, after having trespassed Mr. Fadler and warned him, if you come back, you'll go to jail, sought to lecture him and chastise him.

[00:01:23] Speaker 01:
When they did not like his reaction, they took it as a slight to their personal dignity, huddled up, discussed among one another in conversation that is recorded on their body cameras, where one asks the other, well, what do you want to do, arrest him?

[00:01:40] Speaker 01:
Well, I'm thinking about it with the way he's acting, and that is exactly what they then did.

[00:01:47] Speaker 01:
There were no facts whatsoever developed between when they made the decision and in fact trespassed Freedom Fandler and this moment.

[00:01:57] Speaker 01:
No new evidence building probable cause, whatever.

[00:02:02] Speaker 01:
The only thing that happened was they retaliated against him for the slight they perceived to their dignity.

[00:02:11] Speaker 01:
And in so doing,

[00:02:13] Speaker 01:
ran afoul of clearly established law here in the Ninth Circuit, specifically Duran versus City of Douglas and Nicholson versus City of Los Angeles.

[00:02:26] Speaker 01:
Your Honors, the brief from the town of Sarita attempts to set this case in the context of a horrible crime in the city of El Paso a few days before Freedom Fandler was taken to jail.

[00:02:42] Speaker 01:
And put in the context sought by the town, it adds a grim dystopian tent to everything that happened in that Walmart.

[00:02:54] Speaker 04:
But what happened was on the body cam, it shows the store manager telling the officers that he had asked Mr. Fendler to leave multiple times.

[00:03:08] Speaker 04:
I think I understand your argument to say that because Mr. Findler said it, I couldn't hear him, that was his defense, that meant there was no probable cause, even after the manager repeatedly told the officers, yes, I told him to leave and he didn't leave.

[00:03:24] Speaker 01:
That's exactly what the manager said, although his version of it and his emphatic nature of expanding on it increased each time he asked.

[00:03:34] Speaker 01:
However, the law of this circuit is that the officers have to consider exculpatory as well as inculpatory.

[00:03:41] Speaker 01:
With regard to whether or not Freedom Fandler saw the manager, as the manager claimed, we have pretty powerful evidence that the officers knew.

[00:03:50] Speaker 01:
When Officer George stepped in after talking to the manager,

[00:03:54] Speaker 01:
And you see it very clearly on the body camera.

[00:03:57] Speaker 01:
He addresses in a normal tone of voice to try and get Mr. Fanler's attention.

[00:04:01] Speaker 01:
Mr. Fanler is stuffing the items he had just paid for into his backpack in order to leave and get to work.

[00:04:07] Speaker 04:
But he did acknowledge that he saw the store manager.

[00:04:10] Speaker 04:
He said he saw him, and the manager said he followed him through half the store and was beside him and was trying to get his attention.

[00:04:16] Speaker 04:
And Mr. Fanler said, yes, I saw him.

[00:04:17] Speaker 04:
Well, first he said he didn't see him.

[00:04:18] Speaker 04:
Then he acknowledged he did see him.

[00:04:20] Speaker 04:
but then said, well, he was speaking, but I thought he was talking on a headset.

[00:04:24] Speaker 01:
Okay.

[00:04:24] Speaker 01:
There are three parts of that, of seeing and hearing.

[00:04:28] Speaker 04:
But I guess I'm having a problem with the notion that if there's probable cause to believe a crime has been committed,

[00:04:35] Speaker 04:
that the officers don't have to start weighing exculpatory or potentially exculpatory evidence and decide, well, we can't make an arrest.

[00:04:42] Speaker 04:
I mean, they're not trying the case.

[00:04:44] Speaker 04:
They're just deciding if it's a probable cause, which is an incredibly low standard.

[00:04:48] Speaker 01:
Well, it is not a high bar.

[00:04:49] Speaker 01:
However,

[00:04:50] Speaker 01:
Nicholson makes it very clear and the court cites back to U.S.

[00:04:56] Speaker 01:
v. Ortiz Hernandez for the proposition that the officers must take into account exculpatory as well as inculpatory evidence as they are making the probable cause determination.

[00:05:10] Speaker 01:
And if they ignore exculpatory, they're not entitled to rely.

[00:05:15] Speaker 03:
Well, your description of exculpatory evidence is basically

[00:05:20] Speaker 03:
This person says this and this person says this.

[00:05:24] Speaker 03:
Are officers supposed to decide credibility?

[00:05:27] Speaker 03:
They may decide, gee, the manager's, he doesn't have any reason to lie.

[00:05:33] Speaker 03:
And so he said, told us several times that your client didn't respond to my repeated efforts to get his attention and so forth.

[00:05:46] Speaker 03:
And it's true that the officer encountered the same thing.

[00:05:50] Speaker 03:
But why does that say that the officer should believe that your client wasn't oblivious because he just didn't care about what other people were doing, as distinguished one couldn't hear because he had his helmet on and was listening to music?

[00:06:08] Speaker 03:
And that's not the automatic reaction I would have or did have watching

[00:06:13] Speaker 03:
the body cam footage.

[00:06:15] Speaker 01:
Well, Judge Cliff, there are two important things about your question.

[00:06:19] Speaker 01:
The first is the officer, what the officer knew, and as you alluded to, Officer George stands further back and then comes directly behind, and as you see on the video, Mr. Fandler doesn't see him, he does not hear him, so his... Well, we don't know that from the body cam.

[00:06:35] Speaker 03:
We know that your client doesn't respond, but that doesn't mean he's not just blowing them off.

[00:06:41] Speaker 01:
All right, with respect,

[00:06:42] Speaker 01:
I believe a fair viewing of it, and that's the great thing about having it.

[00:06:46] Speaker 01:
is that when George steps right behind him and uses a command voice, as police say, you see Fandler startle.

[00:06:57] Speaker 01:
He rears back.

[00:06:58] Speaker 01:
He whips his head around.

[00:06:59] Speaker 01:
He is clearly, I believe the inference, is surprised when he sees George behind him and did not know it before.

[00:07:07] Speaker 01:
Now, Judge, you've had the right to read it or view it and draw your own, but I believe that's... But isn't the officer

[00:07:13] Speaker 03:
the one to observe and draw the conclusion.

[00:07:16] Speaker 01:
Yes.

[00:07:17] Speaker 03:
And that's why I have difficulty understanding how the officer went wrong by looking at the situation and deciding there was probable cause.

[00:07:29] Speaker 03:
Now that may not answer the second question.

[00:07:32] Speaker 03:
Officers are required to exercise judgment and discretion in deciding whether to act, in deciding whether to arrest based on probable cause.

[00:07:42] Speaker 03:
I mean, there are lots of drivers that exceed the speed limit and sometimes they get ticketed and sometimes they don't.

[00:07:47] Speaker 03:
But that doesn't mean that probable cause didn't exist.

[00:07:50] Speaker 01:
Well, as I say, the first element is what George saw happen right in front of him that we can see on the body camera.

[00:07:57] Speaker 04:
But the second is what officer George... Isn't that different because the officer was standing behind Mr. Fendler and the store manager says, I was right next to him, I was in front of him, I was following him halfway through the store.

[00:08:09] Speaker 04:
You know, this is not just a momentary encounter.

[00:08:11] Speaker 04:
took some time.

[00:08:12] Speaker 01:
And again, two parts of that.

[00:08:16] Speaker 01:
The manager did claim he was following behind Mr. Fandler attempting to get his attention.

[00:08:22] Speaker 01:
And again, later when we see the video from the store, we see that that's what he was doing.

[00:08:27] Speaker 01:
He didn't come up alongside of him, and he never, ever stood face to face to him.

[00:08:32] Speaker 01:
That never happened.

[00:08:33] Speaker 04:
So I think the difficulty I have with your argument is it suggests that we should resolve

[00:08:39] Speaker 04:
this factual dispute, whether Mr. Fandler saw the store manager, whether he saw the officer.

[00:08:45] Speaker 04:
What the officers were relying upon was the manager's statement, I'm the store manager, I have authority over this premises, and I told him to leave multiple times and he didn't, when that would be probable cause for the violation of Arizona law.

[00:08:59] Speaker 01:
I don't deny the impact of an officer's getting a real-time report.

[00:09:06] Speaker 01:
Other circuits talk about when you have one accusatory witness that's not been adopted here in this circuit, but what I'm saying is even here in the Ninth Circuit, the officers are required to look at the whole picture.

[00:09:18] Speaker 04:
But from Wesby, Wesby says, quote, probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts.

[00:09:27] Speaker 04:
And the reason for that seems pretty obvious.

[00:09:29] Speaker 04:
The officers aren't going to try the case at the spot.

[00:09:32] Speaker 04:
They're making a probable cause determination.

[00:09:34] Speaker 01:
I don't mean to suggest they have to do more, but Westby also makes crystal clear that they must look at the whole story.

[00:09:42] Speaker 01:
They cannot break it down and divide and conquer on the individual facts.

[00:09:47] Speaker 01:
And again, what I want to stress is not only is what the officer saw, the family wasn't able to see or hear what was happening behind him, so the manager following around and talking to him means nothing.

[00:09:57] Speaker 00:
If the manager's not just following around, if the manager were just behind him,

[00:10:01] Speaker 00:
that your argument might be plausible, but that's not what the manager said.

[00:10:05] Speaker 00:
The manager said, I was right beside him, and your client says, I saw him.

[00:10:11] Speaker 01:
And he says, I saw him, and I saw him talking, he had a headset on, which he did.

[00:10:17] Speaker 00:
and I thought he was talking on his headset, not to me.

[00:10:33] Speaker 04:
Mr. Fendler didn't see the manager.

[00:10:35] Speaker 04:
He said he did.

[00:10:35] Speaker 04:
So he's aware that the manager is with him halfway through the store trying to get his attention.

[00:10:40] Speaker 00:
That's not a guy on a headset just wandering around putting items back on shelves.

[00:10:44] Speaker 01:
There is nothing that the manager says or that when Fendler says he saw him, he does see him when he is first walking in the store, the manager reaches out

[00:10:55] Speaker 01:
to give him a high five, Mr. Fanler walks right by him.

[00:10:59] Speaker 01:
That's the time.

[00:11:00] Speaker 01:
From that point forward until when the police cabbage on to him, there isn't any other statement by Mr. Fanler other than the claim, there's no other statement by Mr. Fanler that he sees the manager.

[00:11:11] Speaker 04:
But it still comes back to the undisputed evidence, which is on the video, that the manager told the officers, I asked him to leave six times or so and he didn't leave, which is

[00:11:23] Speaker 04:
probable cause for the trespass charge.

[00:11:26] Speaker 01:
The second point I'm crawling to try and get to is not only do we have what the officers saw with Fandler, but the second part is what the officers did after they heard Mr. Fandler consistently corroborate every statement he made

[00:11:42] Speaker 01:
about what he was doing in the store and what he was doing, the officers did not arrest him.

[00:11:46] Speaker 01:
They trespassed him.

[00:11:48] Speaker 01:
They did not find probable cause and sack him up for trespassing at that point.

[00:11:53] Speaker 01:
They trespassed him, got permission from the manager, went back and said, come back here again, you're going to jail.

[00:11:58] Speaker 01:
And then Officer George continues, he opened his salvo with Mr. Fanler by saying, you need to take both your hands, put them behind you, pull your head out of your ass, pardon me,

[00:12:10] Speaker 01:
and listen to what's going on.

[00:12:12] Speaker 01:
At the end, after they trespass him, they start lecturing him about El Paso.

[00:12:16] Speaker 01:
My client says, I don't know what you're talking about.

[00:12:19] Speaker 01:
He didn't know about El Paso.

[00:12:21] Speaker 01:
The officers don't like his response, and there's no new information or evidence gathered at this stage.

[00:12:28] Speaker 01:
It's just the officers want to teach him a lesson, give him it.

[00:12:33] Speaker 01:
If my client had given the right answers in the right way with the right respectful tone, we wouldn't be here.

[00:12:38] Speaker 03:
Well, that's what happens in a traffic stop.

[00:12:41] Speaker 03:
And the officer gauges whether or not this person is actually going to behave hereafter.

[00:12:47] Speaker 03:
And I got to say, your client gave indication that he was going to continue doing things his way.

[00:12:53] Speaker 03:
So maybe that's why officers exercise the discretion, given that there was probable cause in there.

[00:12:58] Speaker 03:
perspective to say, well, this guy's not going to go off and obey or respond or pay attention to the rest of the world.

[00:13:05] Speaker 03:
He's going to keep doing things his way.

[00:13:07] Speaker 03:
So we need to take them in.

[00:13:09] Speaker 01:
Now, what's wrong with that?

[00:13:11] Speaker 01:
I'll tell you what's wrong with it is the holding of this circuit in Durand versus City of Douglas.

[00:13:16] Speaker 03:
Well, not exactly.

[00:13:17] Speaker 03:
Not only is that case old, but it's a different context.

[00:13:20] Speaker 01:
Well, the context is different, but the holding is identical, that police may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity.

[00:13:34] Speaker 03:
But the scenario I just outlined wasn't that.

[00:13:37] Speaker 03:
It's an officer exercising judgment that this person's not going to be responsive hereafter and maybe this is the person that needs to be taught a lesson.

[00:13:46] Speaker 03:
Not because of feeling personally insulted or slighted, but because your client was not particularly responsive to the officers just as the store manager said he wasn't at all responsive to him and seemed to be oblivious to the rest of the world.

[00:14:01] Speaker 03:
And I got to say, he may be ignorant of El Paso, but at that point in time,

[00:14:07] Speaker 03:
to walk around dressed as he was, not paying attention to what else was going on, I can imagine Walmart employees would be on extreme edge.

[00:14:18] Speaker 04:
Well, they called 911.

[00:14:19] Speaker 04:
There was more than one 911 call.

[00:14:21] Speaker 04:
People were clearly on edge and frightened.

[00:14:23] Speaker 01:
And the evidence that developed in the record is there were multiple calls to 911 because the manager was telling his employees to call 911.

[00:14:30] Speaker 04:
So I want to go back to your argument about the officers only arrested because they were insulted or slighted.

[00:14:35] Speaker 04:
It seemed to me you were making

[00:14:37] Speaker 04:
a Ballantine argument or Nevis suggesting that officers can't arrest somebody in circumstances because they're exercising their free speech rights.

[00:14:48] Speaker 04:
And the examples are they don't really arrest people for jaywalking or chalking on the sidewalks, but they happen to arrest this particular person.

[00:14:57] Speaker 04:
But in those cases, and Nevis, the court said, you have to have objective evidence that they don't arrest other people.

[00:15:05] Speaker 04:
And I don't see anything in this record that would say,

[00:15:08] Speaker 04:
officers don't arrest people for trespass and this was an exceptional arrest and so we can show that this was motivated by an attempt to suppress Mr. and I'm mispronouncing his name, Mr. Fanler's rights.

[00:15:25] Speaker 01:
The difference and what makes this case maybe unique is we don't have to guess about what was going on.

[00:15:31] Speaker 01:
They trespassed him.

[00:15:32] Speaker 01:
They did not arrest him.

[00:15:34] Speaker 04:
Well, here's the problem with your argument.

[00:15:36] Speaker 04:
I don't know the statistics, but I would surmise that it's extremely common that when officers are arresting people or interacting with people, people swear at them, say bad things to them.

[00:15:48] Speaker 04:
They're drunk.

[00:15:49] Speaker 04:
I mean, I'm not saying any of that's happened here.

[00:15:50] Speaker 04:
But they encounter people misbehaving and people doing things that the rest of us would find insulting.

[00:15:55] Speaker 04:
But they arrest them anyway.

[00:15:57] Speaker 04:
And just because that has occurred doesn't mean we have to then decide they did this to suppress his rights.

[00:16:02] Speaker 01:
Okay, but we don't, again, we don't have to guess in this case because what happened is Officer George told Mr. Fanler in one of his tirades at him, stop talking.

[00:16:13] Speaker 01:
Ordered him, stop talking.

[00:16:15] Speaker 04:
Okay, and that happened in another case this week.

[00:16:18] Speaker 04:
The officers tell the person they're trying to deal with to stop talking and listen.

[00:16:22] Speaker 01:
And then Officer Valenzuela starts asking him biographical questions.

[00:16:27] Speaker 01:
Mr. Fanler literally

[00:16:29] Speaker 01:
and points to George who just told him to stop talking.

[00:16:33] Speaker 00:
Yeah, this is a really, really silly

[00:16:37] Speaker 00:
bit of conduct by your client.

[00:16:39] Speaker 00:
It was really juvenile.

[00:16:41] Speaker 00:
And so if it insults the officers, yes, it insults the officers.

[00:16:45] Speaker 00:
But it also confirms what the manager had told the officers, that your client was willfully ignorant of everything that was going on.

[00:16:52] Speaker 00:
He was ignoring people and he was ignoring them deliberately.

[00:16:55] Speaker 00:
He didn't think he had to pay attention to the manager because he wasn't worth talking to.

[00:16:59] Speaker 00:
And he didn't want to talk to the officers.

[00:17:02] Speaker 00:
This was just a huge pain.

[00:17:03] Speaker 00:
And he just wanted to go on his way and do whatever he darn well pleased.

[00:17:06] Speaker 00:
The willful ignorance really, really comes through in that tape.

[00:17:10] Speaker 04:
He was making a game of it, right?

[00:17:12] Speaker 04:
When one officer tells you to stop talking and then the other one asks you questions to pantomime and act as he did.

[00:17:16] Speaker 04:
He was treating it as a game.

[00:17:18] Speaker 01:
I'm the father of an 18-year-old, so I have some sympathy.

[00:17:22] Speaker 01:
for the reactions of a young person when you're trying to do them the solid of getting them to see the bigger picture as the adult world does.

[00:17:33] Speaker 01:
But the question, the very, very serious question before the court, and Judge Bybee, your reaction is exactly what Valenzuela said when Familyer engaged in that display.

[00:17:43] Speaker 01:
You're acting like a child, is what he actually says on the recording.

[00:17:49] Speaker 00:
So the serious question we have, though, is... Which tends to confirm what the manager said, that he treated him with disrespect, that he sought him.

[00:17:58] Speaker 00:
that he knew that the manager was trying to get his attention, and he was willfully ignorant of it.

[00:18:02] Speaker 00:
He willfully ignored him.

[00:18:03] Speaker 01:
And as Judge Clifton said, officers see these things, and they're supposed to rise above them.

[00:18:10] Speaker 01:
And when we look at, was there evidence in that juvenile display that you've just described, Judge Bybee, which built probable cause for trespassing?

[00:18:21] Speaker 03:
They had probable cause already.

[00:18:23] Speaker 03:
The question is, should they exercise their discretion that this person needs some shaking up?

[00:18:28] Speaker 03:
And your client's behavior seemed to suggest, yeah, he wasn't going to pay attention unless I did something to really get his attention.

[00:18:38] Speaker 03:
I don't see anything that defeats the existence of probable cause and the notion that there could be separately a cause of action for insulting a cop, retaliation.

[00:18:50] Speaker 03:
I don't know.

[00:18:50] Speaker 03:
I've heard what you've pointed to.

[00:18:52] Speaker 03:
It's hard to see.

[00:18:56] Speaker 03:
of our perspective or, more importantly, from the perspective of a reasonable jury, your client was simply nonresponsive in a way that you would have expected a better response.

[00:19:08] Speaker 01:
I understand the comment.

[00:19:09] Speaker 01:
I see that I'm substantially over my time.

[00:19:12] Speaker 01:
We've taken you there.

[00:19:12] Speaker 04:
We've taken you over time.

[00:19:13] Speaker 04:
I will give you your summary bottle time, but I do have a question for you.

[00:19:16] Speaker 01:
Yes, ma'am.

[00:19:17] Speaker 04:
You have a claim about the search of the backpack.

[00:19:21] Speaker 04:
Yes, ma'am.

[00:19:23] Speaker 04:
So does that rise or fall with your wrongful arrest claim?

[00:19:26] Speaker 01:
Well, we again, obviously, if there is not probable cause, it's not a lawful custodial arrest.

[00:19:31] Speaker 01:
There cannot be a search of the backpack.

[00:19:33] Speaker 04:
Right, but if there was probable cause, then does your search claim fail as well?

[00:19:36] Speaker 01:
We argued earlier in the case that the search of the backpack was outside the scope, the location, because it had been separated from him.

[00:19:46] Speaker 01:
There's a procedural argument to make.

[00:19:48] Speaker 01:
that that has been waived or lost in the hurly-burly that brings us here today.

[00:19:53] Speaker 01:
Since Belton was chopped back, we believe that that argument in a de novo review is there for the court to consider, that at the time they were separated, that question was asked, that the backpack was nowhere near my client, he was clearly no threat, and that the search of the backpack was illegal.

[00:20:13] Speaker 01:
So I don't want to try and squiggle out of my procedural history, but

[00:20:18] Speaker 01:
That's the answer to your question.

[00:20:20] Speaker 04:
All right.

[00:20:20] Speaker 04:
Thank you.

[00:20:21] Speaker 04:
So I'll give you two minutes for rebuttal.

[00:20:24] Speaker 01:
That's more than fair.

[00:20:25] Speaker 01:
Thank you, Your Honor.

[00:20:37] Speaker 02:
Good morning.

[00:20:38] Speaker 02:
My name is Jim Jellison.

[00:20:40] Speaker 02:
I represent the Sarita officers in this case.

[00:20:45] Speaker 02:
You know, I'll start with the backpack since we ended with the backpack.

[00:20:49] Speaker 02:
One of the reasons that we offered in our supplemental excerpt of records was to point out two major things, one about the backpack and one that sort of permeated my colleague's comments to you about motivations and speech and conduct.

[00:21:09] Speaker 02:
So on the backpack, if you look at the record and it goes Judge Beatty to your question, does that rise and fall

[00:21:19] Speaker 02:
on the probable cause issue.

[00:21:20] Speaker 02:
The answer is yes, because that's all that was raised at the lower court.

[00:21:26] Speaker 02:
Appellant's counsel never raised the idea that the backpack search was improper or illegal or unconstitutional for any reason other than if the arrest lacked probable cause, the search lacked probable cause.

[00:21:44] Speaker 02:
The only time that the lower court delved

[00:21:48] Speaker 02:
into the backpack search beyond the issue of probable cause was actually at the oral argument.

[00:21:54] Speaker 02:
And even after the oral argument, the judge still went back to two places on the backpack search.

[00:22:01] Speaker 02:
Number one, that the only thing the appellant raised in response to the backpack search was the probable cause issue.

[00:22:08] Speaker 02:
And since I find probable cause, then I defeat the only argument that you made.

[00:22:13] Speaker 02:
But supplementally, he said,

[00:22:15] Speaker 02:
It does not violate clearly established law to search the backpack if you have inquired with the appellant, hey, do you have any dangerous instrumentalities on you?

[00:22:28] Speaker 02:
And he says, no, but I can't speak for what's in the backpack.

[00:22:33] Speaker 02:
Now, these officers are going to transport that backpack, and the judge determined that they have a right to know what's in it.

[00:22:41] Speaker 02:
when they do transport it.

[00:22:42] Speaker 02:
And at the very least, there was no clearly established law provided by the appellant, which is their burden to do, to show that the backpack search was unlawful and that every reasonable officer would know that.

[00:23:00] Speaker 02:
The next thing I want to talk about is the speech and conduct element.

[00:23:06] Speaker 02:
Again, one of the reasons that we have provided the complaint and the amended complaint in the supplemental excerpt of records is to show that there in fact is no First Amendment retaliation claim raised in this case.

[00:23:20] Speaker 02:
And all the arguments we've been talking about would be pertinent to that claim that wasn't brought.

[00:23:26] Speaker 02:
If a First Amendment retaliation claim had been brought, then the Durand case from the Ninth Circuit, which I believe was decided around 1980,

[00:23:35] Speaker 02:
would apply.

[00:23:36] Speaker 02:
I was a decade off.

[00:23:41] Speaker 02:
It would apply but the Duran case was truly a First Amendment retaliation claim.

[00:23:47] Speaker 02:
There was no crime there and the officer reacted to the profanity and the display that Mr. Duran exhibited and it was determined that Mr. Duran had a right under the First Amendment to say those things and there was no other lawful reason

[00:24:03] Speaker 02:
to detain him and arrest him.

[00:24:06] Speaker 02:
That's not this case.

[00:24:07] Speaker 02:
And we can see that from the body-worn camera footage and the transcript and, frankly, all the undisputed evidence in this case.

[00:24:16] Speaker 02:
Now, we're in 2022, 23, 24.

[00:24:20] Speaker 02:
If there had been a First Amendment retaliation claim raised, then we would be viewing that under the lens of the U.S.

[00:24:29] Speaker 02:
Supreme Court's decision in Nieves versus Bartlett.

[00:24:33] Speaker 02:
But we never got there because it never was a claim.

[00:24:37] Speaker 02:
But if we got there, what Nieves instructs, and Judge Beatty, I think this is what you were driving at, is that probable cause is a defense to a First Amendment retaliation claim with one exception.

[00:24:51] Speaker 02:
And that one exception would be that the plaintiff could show that that agency and its officers would not normally arrest somebody for that offense.

[00:25:01] Speaker 02:
That was never developed in the record.

[00:25:03] Speaker 02:
So even if this was a First Amendment claim, even if it was brought under that particular legal theory, it would still have failed at summary judgment.

[00:25:14] Speaker 02:
And we shouldn't really even be talking about it now because what we're here to consider is whether there are objective facts that support probable cause.

[00:25:26] Speaker 02:
What the officers felt, believed, what their subjective beliefs were,

[00:25:31] Speaker 02:
are immaterial.

[00:25:32] Speaker 02:
Frankly, we don't really know what they were because they weren't deposed in the underlying case.

[00:25:40] Speaker 02:
We ended up submitting affidavits.

[00:25:44] Speaker 02:
It's just as logical to argue that considering El Paso that the officers looked at the behavior of Mr. Feinler, they looked at the probable cause that they had and said it's best we remove him

[00:26:00] Speaker 02:
from this environment through an arrest.

[00:26:03] Speaker 02:
And, you know, we hear that all the time when these tragic cases occur is that couldn't somebody have prevented this?

[00:26:10] Speaker 02:
Couldn't somebody have taken action?

[00:26:13] Speaker 02:
And in this case, the officers took action and they still land in court.

[00:26:19] Speaker 02:
And for that reason, and of course, in consideration of the clear legal propositions related to probable cause,

[00:26:29] Speaker 02:
that it's not a high bar, that it doesn't require you to assess credibility of reporting parties.

[00:26:36] Speaker 02:
It doesn't require you to hold a mini trial to meet the standard.

[00:26:40] Speaker 02:
The probable cause is clear in this case.

[00:26:43] Speaker 02:
It's clear from Mr. Duran's testimony.

[00:26:47] Speaker 04:
But the subjective part... The heart of your opposing counsel's argument seems to be that the officers were given two sets of facts.

[00:26:55] Speaker 04:
The manager saying, I asked him to leave and he didn't leave.

[00:26:58] Speaker 04:
and Mr. Findler saying, I didn't hear him, and that the officer should have weighed that or considered his exculpatory explanation before determining that probable cause.

[00:27:10] Speaker 04:
How do you respond to that?

[00:27:12] Speaker 02:
Broadly, I respond that it doesn't take away probable cause, and I'll explain why.

[00:27:16] Speaker 02:
But sort of as a secondary proposition, what they did here hasn't been shown to violate clearly established law.

[00:27:26] Speaker 02:
or to take away from at least arguable probable cause, which is the qualified immunity standard.

[00:27:33] Speaker 02:
But the trial court found actual probable cause.

[00:27:36] Speaker 02:
So let's talk about actual probable cause.

[00:27:39] Speaker 02:
So the appellant enters into this Walmart three days after a mass shooting in helmet, full motorcycle regalia, boots, and a camouflage backpack.

[00:27:52] Speaker 02:
The store manager saw that.

[00:27:53] Speaker 02:
After the fact, we all see it in the surveillance footage.

[00:27:59] Speaker 02:
The store manager in that surveillance footage attempts to contact him on multiple occasions.

[00:28:05] Speaker 02:
But what really matters is what the officers heard from the store manager and Mr. Feinler.

[00:28:10] Speaker 02:
So let's look at the transcript because this is what the officers heard.

[00:28:14] Speaker 02:
Among other things, store manager Duran saying, he totally ignored me.

[00:28:20] Speaker 02:
I'm walking with him and say, quote, sir, can you please stop and address me, end quote, and he kept walking.

[00:28:29] Speaker 02:
Sir, I've got police officers.

[00:28:31] Speaker 02:
This is Durand to Mr. Feinler as it's being explained to the officers.

[00:28:36] Speaker 02:
Sir, I've got police officers coming out.

[00:28:39] Speaker 02:
I'm going to ask you to leave the store, end quote, and he kept going.

[00:28:53] Speaker 02:
Mr. Duran to Mr. Feindler in the presence of the officers, I'm standing right next to you, right next to you.

[00:29:00] Speaker 02:
I came right and I said, sir, I need you to stop.

[00:29:04] Speaker 02:
I said, stop.

[00:29:06] Speaker 02:
I said, stop.

[00:29:07] Speaker 02:
I followed you halfway through the store.

[00:29:10] Speaker 02:
I stood right in front of you, just like I'm standing here.

[00:29:14] Speaker 02:
I said, quote, I need you to stop and listen to me.

[00:29:18] Speaker 02:
Store manager, I've got associates that were upset and concerned because you're walking around with the backpack with a helmet and nobody knows who you are.

[00:29:28] Speaker 02:
And Officer George to the store manager, and this is right before the decision is made, the declaration that you're going to be arrested for trespassing.

[00:29:37] Speaker 02:
Officer George to the store manager, Mr. Duran, did you ask him to leave the store?

[00:29:43] Speaker 02:
Mr. Duran, five, six times.

[00:29:46] Speaker 02:
walked right next to him.

[00:29:48] Speaker 02:
So that's what they had from the store manager, Mr. Duran.

[00:29:53] Speaker 02:
In contrast, what did they have from Mr. Feinler?

[00:29:56] Speaker 02:
Mr. Feinler said two things.

[00:29:58] Speaker 02:
Hey, I was listening to music.

[00:29:59] Speaker 02:
I couldn't hear him.

[00:30:01] Speaker 02:
I saw him.

[00:30:02] Speaker 02:
I thought he was talking to somebody else, but I had my music on.

[00:30:05] Speaker 02:
The next thing was Mr. Feinler, quote, I can't explain it, man.

[00:30:13] Speaker 02:
That's what he said to the officers.

[00:30:15] Speaker 02:
I can't explain it, man.

[00:30:16] Speaker 02:
So that's what the officers had from Mr. Feinler.

[00:30:19] Speaker 02:
What they had from their observations is that this man is in the store and he's dressed exactly like the 911 calls suggest.

[00:30:29] Speaker 02:
They go up to him and they're not standing right in front of him.

[00:30:33] Speaker 02:
We can see that on the video.

[00:30:35] Speaker 02:
And it takes them six seconds to grab his attention.

[00:30:41] Speaker 02:
Officer Rivera says, I need you to remove your helmet and he immediately removes it.

[00:30:47] Speaker 02:
So from their experience, they can contrast a store manager who is walking halfway through the store, approaching him from the side, approaching him from the front.

[00:31:01] Speaker 02:
Fainler knows he's there and he admits it and he just ignores him.

[00:31:05] Speaker 02:
Contrast it to the police officers who he responds within six seconds and removes the helmet upon request.

[00:31:14] Speaker 02:
That would be enough to disregard this

[00:31:17] Speaker 02:
future defense.

[00:31:20] Speaker 02:
But mostly, and I think Judge Clifton, your questions go straight to this, if the officers have probable cause from Mr. Duran and Mr. Feinler's explanations are more in line of a defense that doesn't seem to be credible based on their interactions with Feinler, they don't have to make a credibility determination in order to make an arrest.

[00:31:46] Speaker 02:
They have the authority to do it based on the probable cause that exists.

[00:31:52] Speaker 02:
And I hope I answered your question.

[00:31:56] Speaker 02:
Some of the other questions also go to it.

[00:31:58] Speaker 02:
Mr. Duran is complaining that this person is ignoring me.

[00:32:01] Speaker 02:
He's not responding to me.

[00:32:04] Speaker 02:
I'm clearly there in front of him.

[00:32:07] Speaker 02:
I'm talking loudly.

[00:32:08] Speaker 02:
I'm asking five or six times and he ignores me.

[00:32:14] Speaker 02:
That's consistent with now what the officers are seeing from Mr. Feinler in terms of his interactions with the police officers.

[00:32:23] Speaker 02:
Once confronted and once told to listen, he's going to play the game with them and pretend like, hey, I'm not going to talk, I'm going to zip my lips, and I'm not going to speak to you, I'm not going to deal with you.

[00:32:36] Speaker 02:
Exhibiting the exact same behavior that Mr. Duran is complaining about.

[00:32:42] Speaker 02:
So if you even applied a balancing test to probable cause, which you shouldn't, the balance falls in favor of probable cause and making an arrest in this case.

[00:32:56] Speaker 02:
And that concludes my remarks, unless the panel has questions for me.

[00:33:05] Speaker 04:
All right.

[00:33:05] Speaker 04:
Thank you.

[00:33:06] Speaker 02:
Thank you.

[00:33:25] Speaker 01:
I take the questions the panel has asked to heart about the way the situation developed with the responses.

[00:33:37] Speaker 01:
But in making cold decisions without wanting to teach a young man a lesson about what were the facts the officers actually had in hand, they were provided

[00:33:51] Speaker 01:
a contact with a young man who, once he realized the officers were talking to him, was immediately compliant.

[00:34:01] Speaker 01:
He provided receipts to show where he bought it.

[00:34:04] Speaker 01:
He explained where he was going to work, that he was just in the store as he had been in that store, in other stores, dressed exactly the same way without ever having this happen.

[00:34:13] Speaker 01:
Again, not knowing that El Paso had occurred three days earlier, which was the game changer here, unbeknownst to him.

[00:34:21] Speaker 01:
The simple fact is the officers were seeing the manager up the ante on what my client had done in ways that now that we see the video camera were patently false.

[00:34:35] Speaker 01:
Granted, the officers would not have known that because they did not ask what so often happens in Walmarts to see the surveillance video, which Mr. Duran testified in his deposition, was a few minutes away.

[00:34:48] Speaker 01:
The officers did not ask.

[00:34:50] Speaker 01:
And granted, they wouldn't have had an affirmative duty to do so, but when we look at what the officers did in Westby, the repeated interviews of 21 people in the little strip club going on in Westby.

[00:35:03] Speaker 01:
None of that occurred here to test the conflicting stories between them.

[00:35:09] Speaker 01:
But we know that the officers resolved it by trespassing him, not by concluding that probable cause until they became offended at his responses to their effort to explain to him why he was in the wrong.

[00:35:26] Speaker 01:
So, Your Honors, I understand and I absolutely take your point

[00:35:30] Speaker 01:
that this could have been a judgment call the officers made in the discretion, but it also speaks to their using the authority of the badge and gun to teach a lesson that should not be taught.

[00:35:43] Speaker 00:
I want to make sure I understand the argument.

[00:35:44] Speaker 00:
So if the officers had gone up to, had talked to the manager, let's say separately, one officer is just holding your client without talking to him, one over is talking to the manager.

[00:35:58] Speaker 00:
And he comes back over and says, you know, we can arrest you.

[00:36:04] Speaker 00:
And you don't want that and we don't need that trouble as well.

[00:36:10] Speaker 00:
And then your client started mouthing off to the officers.

[00:36:16] Speaker 00:
Do they lose the ability to be able to arrest him at that point because he's mouthing off and now it looks like it's some kind of retaliation for your client exercising his First Amendment rights?

[00:36:26] Speaker 01:
Well, that seems to be the argument that you're making.

[00:36:30] Speaker 01:
It is not the argument I'm making.

[00:36:32] Speaker 01:
I understand the nature of the question.

[00:36:34] Speaker 01:
In this case, it wasn't a First Amendment right, it was his right to remain silent that they punished him for.

[00:36:40] Speaker 01:
they were retaliating against.

[00:36:42] Speaker 01:
The officer, Valenzuela's response, you're acting like a baby, was when Mr. Fandler, and it wasn't some grand invocation, it was he was complying with what Officer George had ordered him to stop talking.

[00:36:55] Speaker 00:
It's a pretty juvenile response.

[00:36:57] Speaker 00:
It was not one that I would want my son.

[00:36:59] Speaker 00:
And it's not one that you would have advised if you had been standing at his elbow.

[00:37:03] Speaker 01:
I got that.

[00:37:04] Speaker 01:
No.

[00:37:04] Speaker 01:
But the language of Durand is that the officer has got to rise above

[00:37:10] Speaker 00:
Sure, but if the officer has probable cause, and I'm giving you a hypothetical in which they've advised him they can arrest him, do they lose the ability to arrest him simply because he starts mouthing off?

[00:37:25] Speaker 01:
No, but in this case, our argument is that they knew they did not have probable cause and had decided to not arrest him until they got mad at him and then they bowled forward.

[00:37:38] Speaker 03:
The premise of the argument is that they did not have probable cause and knew it.

[00:37:42] Speaker 03:
They did not have probable cause.

[00:37:44] Speaker 03:
And if we conclude that there was probable cause, is there anything left to the argument?

[00:37:50] Speaker 01:
I'm in big trouble if you make a determination that they had probable cause.

[00:37:57] Speaker 01:
I appreciate the courtesy of the court.

[00:38:00] Speaker 04:
Thank you.

[00:38:01] Speaker 04:
This case is submitted.

[00:38:03] Speaker 04:
Counsel, thank you both for your arguments this morning.

[00:38:05] Speaker 04:
They were very helpful.

[00:38:06] Speaker 04:
And we are adjourned.