[00:00:00] Speaker 00:
Good morning and welcome to the Ninth Circuit Judge Schroeder and Judge Miller and I would like to Welcome all counsel who are here today.

[00:00:09] Speaker 00:
We also I want to just ask you to We've got four arguments set for today.

[00:00:16] Speaker 00:
So just pay attention to the clock.

[00:00:17] Speaker 00:
Let us know

[00:00:18] Speaker 00:
If you want to reserve any time for a bottle and try and sum up as the times expiring, once the red light goes on, the time still counts, but it counts upwards.

[00:00:27] Speaker 00:
That's an indication that the time has done.

[00:00:32] Speaker 00:
We're going to go ahead and set, go ahead with our first case set for argument, which is Gosden versus McGrath.

[00:00:39] Speaker 00:
And that case is set for 10 minutes.

[00:00:42] Speaker 00:
So go ahead, Councilman.

[00:00:47] Speaker 01:
May it please the court?

[00:00:48] Speaker 01:
My name is Loris Hill.

[00:00:49] Speaker 01:
I am representing Mr. McGrath.

[00:00:53] Speaker 01:
I'd like to please reserve two minutes for rebuttal.

[00:00:58] Speaker 01:
The issue is whether a reasonable person in Deputy McGrath's position would know that what he did violated clearly established law, not at the high level of generality, but under the specific circumstances of this case.

[00:01:13] Speaker 01:
Keeping in mind that in the Sandin case, the Supreme Court said that it's important for deputies, for jailers, to have flexibility for on-the-ground judgments regarding safety and maintaining order.

[00:01:29] Speaker 01:
And nothing is more important in the jail than maintaining everyone's safety.

[00:01:34] Speaker 00:
So counsel, let's say that we agree with you that, in theory,

[00:01:41] Speaker 00:
The statement of law has been stated at too high of a level of generality.

[00:01:49] Speaker 00:
mean that we don't need to go and look at the comparison in these cases.

[00:01:54] Speaker 00:
And there's some prior cases that suggest that he still should have known here.

[00:01:59] Speaker 00:
I mean, there were some, can you address that?

[00:02:01] Speaker 00:
Because there were some inconsistencies in how he applied the rule.

[00:02:04] Speaker 00:
He said they were minor.

[00:02:05] Speaker 00:
Why can't we say, even if we interpreted it at a more granular level, that if you're doing a minor rule and applying it inconsistently, that's enough.

[00:02:17] Speaker 00:
And that's clearly established.

[00:02:19] Speaker 01:
Understood.

[00:02:21] Speaker 01:
One of the things we should think about is to what extent are comparators even relevant in this particular situation.

[00:02:28] Speaker 01:
The analogy I would draw is to the Neabs case, Neabs v. Bartlett, in which the Supreme Court held that as a general rule, a plaintiff in a retaliatory arrest claim must prove absence of probable cause, and that using comparators is a narrow exception to that rule.

[00:02:48] Speaker 01:
And they give the example, for example, of you don't arrest the person for, typically a person is not arrested, for instance, for jaywalking, even though there might be probable cause to arrest.

[00:03:01] Speaker 01:
Now, it may make a difference whether the person jaywalking.

[00:03:05] Speaker 00:
Okay, so let's assume that you're correct about that.

[00:03:08] Speaker 00:
If a person's normally not arrested for jaywalking,

[00:03:12] Speaker 00:
and then he files a complaint against the police, and he is arrested for jaywalking, why doesn't that suggest that there's something odd about this pattern, perhaps even for qualified immunity?

[00:03:28] Speaker 01:
That would be something that would be suspicious, but that's not the facts of our case, because we actually don't have a complaint that's been filed against the... I thought we had a

[00:03:40] Speaker 01:
We have a request for a form.

[00:03:45] Speaker 01:
In essence, what we have is somebody who mounts off at a deputy, uses a little profanity, and then says, you're a bully, I want an IA form.

[00:03:56] Speaker 01:
Does combining a request for an IA form with a rules violation put some sort of invisible shield around you to say that whatever discipline might be imposed on you, you're protected from or you get damages?

[00:04:09] Speaker 00:
Is that what you're relying on, is that it was a request for a form as opposed to a complaint?

[00:04:14] Speaker 00:
No.

[00:04:15] Speaker 00:
You're saying it would be different if he filed a grievance form?

[00:04:17] Speaker 01:
Well, I'm disappointed he didn't, at this point, did not file a grievance form, but I don't think that's the pivotal distinction here.

[00:04:25] Speaker 01:
The pivotal distinction is he combines his request for an IA form, or his complaint, whatever you want to call it, his disciplinary complaint, he combines it with his rule violation.

[00:04:34] Speaker 01:
Now, if you're going to, if... Who is he?

[00:04:40] Speaker 01:
He is Mr. Gadsden.

[00:04:42] Speaker 01:
Mr. Gadsden combined his rule violation, which was profanity against the deputy, with a request for an I.A.

[00:04:49] Speaker 01:
form, all happened at the same time.

[00:04:51] Speaker 02:
Yeah, well, I don't quite understand your argument, because what the district court said was the issue here is whether he was disciplined because he violated the rules.

[00:05:04] Speaker 02:
or because he asked for a form because he was going to file a complaint.

[00:05:09] Speaker 02:
That's a factual issue.

[00:05:11] Speaker 02:
That's what the district court said.

[00:05:14] Speaker 02:
And therefore, this case is about a factual question.

[00:05:18] Speaker 02:
And you would be right if he was motivated by this.

[00:05:22] Speaker 02:
And the plaintiff would prevail if he was motivated by that.

[00:05:26] Speaker 01:
OK, please understand.

[00:05:27] Speaker 01:
We're going with the district court's interpretation of whatever the district court accepted as the undisputed facts.

[00:05:33] Speaker 01:
we accept too.

[00:05:35] Speaker 01:
But the undisputed facts of this case are that Mr. Gadston combined his violation with a request for an IA form.

[00:05:44] Speaker 01:
That happened at the same time.

[00:05:45] Speaker 04:
That's not quite true because the initial request for the form was then, but then there was sort of the later

[00:05:53] Speaker 04:
Some hours later, he was asked, do you still want the IA form?

[00:06:00] Speaker 04:
And at that point, he said yes.

[00:06:02] Speaker 04:
And then Mr. McGrath said, OK, you're being transferred.

[00:06:06] Speaker 04:
So taking the facts in the light most favorable to the plaintiff, it seems like that was the triggering event.

[00:06:15] Speaker 01:
But should the fact that that

[00:06:18] Speaker 01:
exchange took place hours later, should that put some type of immunity over Mr. Gadsden to say, okay, now you can't do anything to me because you have mentioned that I requested an IA form.

[00:06:32] Speaker 01:
Does this create an invisible shield over a prisoner to say, my rule violation doesn't count because now you've said something about requesting an IA form.

[00:06:41] Speaker 00:
Well, and that's why, to me, for purposes of qualified immunity, this comes back to what do the prior cases say on their facts?

[00:06:49] Speaker 00:
Not the general law that they state, but what do they say on their facts?

[00:06:53] Speaker 00:
And I mean, I think you can draw a conclusion that they should have been on notice here, at least that for, look, I get your point.

[00:07:02] Speaker 00:
If he had beaten up another prisoner,

[00:07:08] Speaker 00:
That's not a minor rules violation.

[00:07:10] Speaker 00:
But here, the rules violation was he swore at the correctional officer.

[00:07:16] Speaker 00:
Help me understand.

[00:07:18] Speaker 00:
Was there more than that on the rules violation?

[00:07:19] Speaker 01:
OK, we're talking about comparators again.

[00:07:21] Speaker 01:
And there's no compare.

[00:07:22] Speaker 00:
I want to know what Gadsden's rule violation was here.

[00:07:27] Speaker 01:
Verbally, well, it's cussing, of course.

[00:07:30] Speaker 01:
But it's also verbally confrontational with the officer.

[00:07:35] Speaker 01:
Okay, so he tells the officer, your ability, the officer says, he says, F you, and the prisoner says, he says, this is bullshit.

[00:07:44] Speaker 01:
One way or the other, he's using profanity on the officer, and in the same exchange, he says, I want an IA form.

[00:07:51] Speaker 01:
So he's combining his request for an IA form with his rule violation.

[00:07:55] Speaker 01:
Now, listen.

[00:07:56] Speaker 00:
I understand it, but come on.

[00:07:59] Speaker 00:
I want to know, do they put—do they do the same sanction to every prisoner that uses profanity towards— We have no evidence that they don't.

[00:08:10] Speaker 01:
That's a plaintiff's burden, and the plaintiff could have produced comparatives if there was any, if there were any.

[00:08:16] Speaker 00:
Well, I think they—I thought they had.

[00:08:20] Speaker 00:
I thought they said that this was not, that they couldn't find, well, let's set that aside.

[00:08:25] Speaker 00:
For purposes of qualified immunity, why don't you come back to which cases, why you think there's no comparator?

[00:08:33] Speaker 01:
The reason why is because none of the, either the comparators that were cited by the district court and cited by the plaintiff in this case, or the cases that were cited by the plaintiff in the briefing,

[00:08:48] Speaker 01:
None of them involve a case where a prisoner who got confrontational, used profanity on a deputy or on a jailer

[00:09:00] Speaker 01:
simply had a grounds for retaliation lawsuit based on that.

[00:09:05] Speaker 01:
And therefore, it's not clearly established law.

[00:09:08] Speaker 00:
OK.

[00:09:08] Speaker 00:
Do you want to reserve?

[00:09:10] Speaker 01:
I see them out of time.

[00:09:12] Speaker 00:
No, you're not out of time.

[00:09:13] Speaker 00:
You can reserve.

[00:09:14] Speaker 01:
I did reserve.

[00:09:16] Speaker 00:
No, you've got a minute and 39 seconds for rebuttal.

[00:09:19] Speaker 00:
Thank you.

[00:09:19] Speaker 01:
We don't subtract.

[00:09:20] Speaker 01:
I get confused.

[00:09:23] Speaker 00:
You're good.

[00:09:24] Speaker 01:
Yeah, but that's the whole thing.

[00:09:27] Speaker 00:
The idea is that- Do you want to reserve your remaining time for rebuttal?

[00:09:32] Speaker 00:
I'll do that.

[00:09:33] Speaker 00:
All right, thank you.

[00:09:34] Speaker 01:
Thank you.

[00:09:46] Speaker 03:
Good morning, Your Honors.

[00:09:48] Speaker 03:
May it please the Court?

[00:09:50] Speaker 03:
I think the thrust of the Court's questions so far have kind of

[00:09:54] Speaker 03:
hit on the important point, which is that this is largely a factual argument, although appellant frames it as a legal one.

[00:10:00] Speaker 00:
Well, but see, this is a problem in qualified immunity, because we've been chastised many times by the Supreme Court for defining the right at too high of a level of generality.

[00:10:11] Speaker 00:
Our prior cases seem to have done that.

[00:10:12] Speaker 00:
They've basically said it is clearly established that you can't retaliate against a police officer.

[00:10:18] Speaker 00:
You would agree that we can't just take that statement.

[00:10:21] Speaker 00:
If we took that statement on its face, then

[00:10:24] Speaker 00:
any time there was a retaliation claim, there would be no qualified immunity for a retaliation claim.

[00:10:30] Speaker 03:
Well actually, I think retaliation is different than other forms of civil rights abuses that are subject to qualified immunity, such as excessive force or something like that, in the sense that there is no appropriate form of retaliation.

[00:10:44] Speaker 03:
Right.

[00:10:45] Speaker 03:
It's not like a shooting, say, where it might be appropriate in this context, but it's not appropriate in that context.

[00:10:50] Speaker 03:
Retaliation is always wrong.

[00:10:52] Speaker 00:
Yeah, but the problem is qualified.

[00:10:54] Speaker 00:
The whole purpose of qualified immunity is to put the officer on notice that he can't take a certain action.

[00:11:01] Speaker 00:
There has to be some case law that says, given this situation, I'm on notice that I can't take administrative action against him.

[00:11:12] Speaker 00:
So maybe you can help me out, because I think there are cases that support us on the granular level, and maybe you can walk through those.

[00:11:22] Speaker 03:
Yeah, I think, let's assume that you're right and that the rule needs to be more granular.

[00:11:28] Speaker 03:
I think Shepherd v. Quillen is very helpful.

[00:11:31] Speaker 03:
The response is directly to the allegation that the plaintiff in that case is going to report the correctional officer.

[00:11:40] Speaker 03:
Austin versus Tarhoun is also very helpful.

[00:11:43] Speaker 03:
The facts are almost exactly like what occurred here, where there's an interaction between an individual and a control room.

[00:11:49] Speaker 03:
And then there is a follow-up conversation, much like what occurred here, which sort of makes it more clear that what's going on is ultimately retaliatory.

[00:12:00] Speaker 03:
And those are just two of, like, a dozen cases that are directly on point.

[00:12:05] Speaker 03:
And while it's true that the rule has been articulated relatively generally,

[00:12:09] Speaker 03:
This is not some kind of outlier case.

[00:12:12] Speaker 04:
Can you remind me, in the cases you're citing, was there a claim by the officer that the inmate had, in fact, engaged in misconduct in those cases?

[00:12:23] Speaker 03:
Yes, but the interesting thing about Shepherd v. Quillen, for example, is that the very act that the inmate is disciplined for is the act of reporting the correctional officer.

[00:12:35] Speaker 03:
And so that's very much akin to what occurs here, where Deputy McGrath cites in his own incident report the fact that my client requested an IA for him.

[00:12:45] Speaker 00:
So what if in

[00:12:48] Speaker 00:
requesting the form, he'd actually struck the police officer.

[00:12:53] Speaker 00:
Yeah, that's different facts.

[00:12:54] Speaker 00:
Okay, but so, I mean, how do we do that?

[00:12:56] Speaker 00:
Because you could also say, well, that's retaliation, and so therefore, there's no qualified immunity.

[00:13:01] Speaker 00:
I mean, if we take this at too high a level, you could never discipline him.

[00:13:06] Speaker 00:
And that goes to the defendant's concern that

[00:13:11] Speaker 00:
I mean, if we do that, then we incentivize them always to file these grievances because they basically can undermine qualified immunity.

[00:13:18] Speaker 00:
So how do we define that?

[00:13:20] Speaker 00:
I mean, I think the way to do it is to say, look, this was a minor violation.

[00:13:24] Speaker 00:
There's a difference between minor violations and major violations.

[00:13:26] Speaker 00:
But I'd be interested in how you conceptualize this.

[00:13:30] Speaker 03:
Well, I come back to the idea that

[00:13:33] Speaker 03:
The facts had to be viewed in the light most favorable to my client as the non-moving.

[00:13:37] Speaker 03:
And the court found here that there is evidence of retaliation.

[00:13:41] Speaker 03:
So yes, sure, there is an ostensibly neutral.

[00:13:44] Speaker 03:
But that's my concern.

[00:13:45] Speaker 00:
is that just because there's evidence of retaliation cannot on its face be enough to violate, or to get rid of qualified immunity.

[00:13:55] Speaker 02:
It's not just a retaliation, it's retaliation for a particular kind of conduct, isn't that correct?

[00:14:00] Speaker 02:
Yes.

[00:14:00] Speaker 02:
In this particular kind of conduct, the cases say you can't retaliate.

[00:14:05] Speaker 03:
Right, exactly.

[00:14:06] Speaker 03:
And there is not, and this is what I think is odd about appellants' position, they seem to be arguing that there's some ambiguity about

[00:14:12] Speaker 03:
when it's appropriate to retaliate against inmates.

[00:14:15] Speaker 03:
It's never a problem.

[00:14:16] Speaker 00:
I don't see that.

[00:14:18] Speaker 00:
I mean, maybe that is their position, but I see it more as what facts, if I'm an officer and I'm saying, look, there was a rule violation here.

[00:14:27] Speaker 00:
It was in conjunction with a request for a complaint.

[00:14:32] Speaker 00:
What's the level that, I mean, what can I do?

[00:14:35] Speaker 00:
You say, oh, well, clearly if he hit him, you could throw him in, you know, what if he threw a pencil at him?

[00:14:42] Speaker 00:
Could he write them up for that rule of violation?

[00:14:45] Speaker 00:
I'm trying to draw a distinction between... Well, but would that be retaliation?

[00:14:48] Speaker 00:
Would that be... Would that, in your mind, if the prisoner threw a pencil and said, give me my form, and threw a pencil at him, and then they put him in segregation, would that be retaliation, and they would be denied qualified immunity?

[00:15:05] Speaker 03:
I think these hypotheticals are kind of difficult to parse because retaliation is so subjective.

[00:15:10] Speaker 00:
Isn't that the whole point of qualified immunity?

[00:15:12] Speaker 00:
That's why I'm asking these questions.

[00:15:14] Speaker 00:
The officer has to know what he can do, and you keep saying, well, you can't retaliate.

[00:15:18] Speaker 00:
And the officer's like, thank you, but what does that mean?

[00:15:23] Speaker 00:
I mean, you have to have a prior case that puts the officer on notice that he can't take that action.

[00:15:29] Speaker 00:
You can't just say retaliation is an action.

[00:15:31] Speaker 03:
Your Honor, it's not taking particular actions.

[00:15:34] Speaker 03:
It's acting with a particular mental state.

[00:15:36] Speaker 03:
And the mental state is retaliatory animus.

[00:15:38] Speaker 03:
And the case law on that is crystal clear, and it has been for decades.

[00:15:42] Speaker 00:
So yes, there are different- So what was it here that showed the mental state for retaliation?

[00:15:47] Speaker 03:
Well, there's quite a few facts.

[00:15:48] Speaker 03:
We already alluded to the follow-up conversation in which Deputy McGrath asked my client, do you still want the IA form?

[00:15:55] Speaker 03:
And when my client says yes, he says, well, roll your property up.

[00:15:58] Speaker 03:
You're being transferred.

[00:15:59] Speaker 03:
But it's not just that.

[00:16:00] Speaker 03:
It's also, for example, the history of how Deputy McGrath responded to other situations.

[00:16:06] Speaker 03:
And Mr. Hill said a moment ago, there's no facts.

[00:16:08] Speaker 03:
There's plenty of facts.

[00:16:09] Speaker 03:
We deposed the deputy, and we also obtained his disciplinary records from many other incidents that he responded to.

[00:16:16] Speaker 03:
Many of which involved analogous facts and he did not take the type of steps He took in this case most of the time.

[00:16:22] Speaker 00:
In fact, he did nothing But you would agree that we have to look to other cases So you could still state a claim for retaliation you could show evidence of retaliation and They could still get qualified immunity or you don't think that's ever possible No, I mean

[00:16:45] Speaker 03:
I won't say it can't occur, but I would say... When can it occur?

[00:16:50] Speaker 04:
But that's not really a proposition you need to embrace, is it?

[00:16:55] Speaker 03:
No.

[00:16:55] Speaker 03:
I mean, I think on these facts, there's no question that a reasonable officer in this position was on notice.

[00:17:01] Speaker 00:
And I guess we just keep coming back to what's the cases.

[00:17:03] Speaker 00:
And I think you've given us them.

[00:17:04] Speaker 00:
I don't know if you want to go back to that.

[00:17:05] Speaker 00:
Yes.

[00:17:06] Speaker 03:
No.

[00:17:06] Speaker 03:
I mean, I think I'll sort of submit based on what I've said already.

[00:17:10] Speaker 03:
I think the case law is clear and that a reasonable officer in this position would have known this was illegal.

[00:17:15] Speaker 04:
And to be clear, the retaliatory motive has to be a but-for cause of the— It has to be a substantial factor, I believe.

[00:17:25] Speaker 04:
Oh, I thought Nieves against Bartlett said but-for, but okay.

[00:17:33] Speaker 04:
You think it's— I wouldn't make a difference.

[00:17:36] Speaker 04:
I think that makes it—that makes your answer to some of Judge Nelson's hypotheticals more difficult, but okay.

[00:17:44] Speaker 03:
All right.

[00:17:44] Speaker 03:
Thank you very much.

[00:17:54] Speaker 01:
The plaintiff emphasized our, there was an emphasis on the mental state of the, of Deputy McGrath and that we should be looking at the mental state.

[00:18:09] Speaker 01:
I'd like to draw the court's attention to a statement from the Sandoval versus County of San Diego opinion from 2021.

[00:18:17] Speaker 01:
Quote, we are not aware of a single case in which we have examined the defendant's mental state

[00:18:24] Speaker 01:
in assessing the clearly established law prong of qualified immunity.

[00:18:31] Speaker 00:
That's interesting.

[00:18:33] Speaker 00:
Remind me the claim in Sandoval.

[00:18:36] Speaker 00:
Was it a Fourth Amendment?

[00:18:38] Speaker 01:
No.

[00:18:39] Speaker 01:
The case involved a vastly different set of facts, and they're not really talking about it in this case.

[00:18:46] Speaker 00:
I'm just trying to figure out how far to take that statement.

[00:18:53] Speaker 01:
it's it was a medical care claim and the involved uh... you know to what extent is still is an eight amendment violation basically uh... it was either eighth amendment or it was one of those fourteenth amendment pretrial detainee things and i can't remember offhand which one it was uh... but the the point is that

[00:19:15] Speaker 01:
mixed motive, you know, when we're talking about mixed motive, if McGrath had a mixed motive of retaliation plus he was also doing something he was entitled to do anyway, he should still be entitled to qualified immunity because otherwise you cannot, again, you've got the problem of prisoners

[00:19:36] Speaker 01:
knowing that they can immunize themselves, put this shield of immunity on themselves for rule violations, for mouthing off against deputies, for challenging deputies.

[00:19:46] Speaker 01:
Order is important in an institution, in a jail.

[00:19:50] Speaker 01:
get the word out that all you have to do when you don't like something a deputy did is cuss him out.

[00:19:57] Speaker 01:
And if they do anything, if they even transfer you to another institution, which is what McGrath did, then you get damages for that.

[00:20:07] Speaker 00:
Thank you, counsel.

[00:20:08] Speaker 00:
We appreciate both counsel's arguments in the case.

[00:20:11] Speaker 00:
The case is now submitted.

[00:20:12] Speaker 01:
Thank you very much.