[00:00:01] Speaker 03:
Good morning, ladies and gentlemen.

[00:00:03] Speaker 03:
Welcome to the Ninth Circuit.

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Pleased to have you here today on this beautiful, mild day in Phoenix.

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Before we begin with our oral argument, we have some housekeeping matters to take care of, specifically a number of cases to submit.

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They are Garabay-Melendez versus Garland, Gámez-Montoya versus Garland, Sorto-Portales versus Garland,

[00:00:30] Speaker 03:
Varela Pedro versus Garland, Miranda Leyva versus Garland, Kumar versus Garland.

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Those matters are now submitted officially and we will now hear argue in the case of Hartzell versus Morana Unified School District.

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I believe Mr. Jones, you're up first.

[00:00:58] Speaker 02:
Good morning, Your Honors.

[00:00:59] Speaker 02:
Jacob Jones for the plaintiff, Appellant Rebecca Hartzell.

[00:01:02] Speaker 02:
I would like to reserve three minutes.

[00:01:04] Speaker 02:
I'll keep my eye on the clock.

[00:01:05] Speaker 02:
You do.

[00:01:06] Speaker 02:
May it please the court.

[00:01:07] Speaker 02:
The qualified immunity grant, reviewed de novo, should be reversed, and the First Amendment retaliation claim against Principal Divyak should be allowed to go to the jury, because a reasonable principal in Divyak's position would have known it's unlawful to retaliate against a parent's protected speech by initiating a no-trespass order that categorically and indefinitely prevented that parent

[00:01:34] Speaker 02:
from accessing the limited public forum where other parents and the general public were invited to be present, including picking up and dropping off her students, et cetera.

[00:01:45] Speaker 03:
Council, as you know, in order for you to establish qualified immunity, you have to show that the other side knew, in this case the administrator, knew because of existing case law that was on point.

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that what she did, or was accused of doing, was in fact a violation of the constitutional rights of Ms.

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Hartstall.

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What's the case that you refer us to, that you think establishes that concept?

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At least the O'Brien case, Ninth Circuit.

[00:02:21] Speaker 02:
How does that help you?

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The 2016 case?

[00:02:25] Speaker 04:
Yeah.

[00:02:25] Speaker 04:
I'm sorry, who versus O'Brien?

[00:02:28] Speaker 02:
I'm sorry, it was O'Brien versus

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Welty, thank you counsel.

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It's cited in the opening brief.

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I think the language that I cited in the opening brief specifically speaks, I think that one has a more general statement and I think the Kerensky case has a more specific application.

[00:02:48] Speaker 03:
Well, what's the court of appeal decision you would refer us to?

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So I, primarily I would refer actually to the obviously unlawful, but because I think the obviously unlawful standard applies here.

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Well, with respect, as you know, the Supreme Court has some unusual jurisprudence about qualified immunity.

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And one thing they've made very clear is that the understanding of what is unconstitutional has to be very specific, cannot be at a 30,000-foot level.

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I have seen no cases, and I don't think you have sight as to any appellate cases, and particularly not Ninth Circuit cases that are really close

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to this situation.

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What have I missed?

[00:03:33] Speaker 02:
I agree this is a very rare situation.

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I don't think Your Honor's missed anything.

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I think the reason for the obviously unlawful standard is because some cases are just unlikely over our past 200 years to have gotten to an appellate or even district court decision.

[00:03:48] Speaker 04:
Let me ask it this way.

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Is there any other way to show that the right is clearly established

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other than a case directly on point?

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Yes, there is, Your Honor.

[00:04:02] Speaker 04:
And how is that?

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By showing that the cases that are there are sufficiently particular to put the administrator on notice of the law.

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I'll give two pieces of example why I think that a reasonable inference could

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be drawn that she did know that.

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One, there's evidence in the record that she was actually trained that speech retaliation was not appropriate.

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Two, I would submit that in this unique case

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Our position is that she spoke an untruth to the law enforcement officer.

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And I would suggest that her reason for doing that, one could infer, is because she knew the real thing she was doing was unlawful, such that she needed to cover it up.

[00:04:46] Speaker 03:
Well, but Counsel, you yourself have used the term that this is a, unquote, unique case.

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Doesn't that defeat your qualified immunity claim right off the bat?

[00:04:56] Speaker 02:
I don't think so because I think that any principle would probably agree.

[00:05:01] Speaker 02:
Probably.

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I admit, you know, common sense, whatever, but the Supreme Court's been very clear.

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This, you have to have a case or cases at the appellate level so that it's presidential that shows that no reasonable officer in her situation would have any doubt that what she was doing violated the constitutional rights of Ms.

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Hartzell.

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I don't see those cases.

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I don't think you're telling us that there are.

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You're just saying based on her training and the manual and so on that she should have understood.

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But that doesn't meet the requirements of the Supreme Court's case law, does it?

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I think it could.

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And the reason is I think the more recent Supreme Court case laws that my friend has cited

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are in a very different context.

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They're either in the 14th Amendment context, they're in the context of a police officer in a moment-by-moment scenario where there's a lot of scenarios and subversions of that.

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Those are the contexts, including whether an arrest supported by probable cause can

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you know, can be protected by qualified immunity.

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And that question, whether or not that's protected by qualified immunity, has gone really all over the place.

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I would certainly agree with you.

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Our court, like every other appellate court, groans under the number of qualified immunity cases that come to us based on law enforcement claimed unconstitutional conduct.

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But that's not what we're dealing with here.

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We're dealing with a school administrator who is alleged to have done certain things, and it's your burden.

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if you're going to establish qualified immunity to show that what was done was clearly unconstitutional and that as a reasonable administrator, she would have known that.

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I don't see how you meet that burden, counsel.

[00:06:46] Speaker 02:
So in the cases where they say we don't look at the administrator's subjective view, I think that goes back to a 1982 change in the law where prior to that a good faith defense essentially existed, that the subjective good faith belief of the administrator was a basis.

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And in 1982, we departed and said we no longer care about the subjective belief that it was in good faith.

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But I don't think that that change in 1982 made it so that we can't look at their subjective belief.

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What change are you referring to in 1982?

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I don't have it cited here.

[00:07:18] Speaker 03:
It's a little tangential.

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It was a Ninth Circuit decision that I'm referring to that I believe was following a Supreme Court decision.

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I'm describing the basis for why we see in our jurisprudence today that we don't look at the Administrator's subjective belief.

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I don't believe there's any case that says we can't look at her subjective belief if evidence shows she actually believed it was unlawful.

[00:07:42] Speaker 03:
But you do agree that it's your burden, right?

[00:07:45] Speaker 03:
I agree.

[00:07:45] Speaker 03:
All right.

[00:07:46] Speaker 03:
Do you have other things?

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Let me just ask you this.

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In your First Amendment complaint, the district court held that you didn't put the school district on notice that your procedural due process claim contained a First Amendment theory.

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Paragraph 112 accused the district of censoring her speech.

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Forgive me.

[00:08:13] Speaker 03:
I'm looking at my wrong note here.

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What I mean to say is you rely on paragraph 112 of your First Amendment complaint to show that the appellees were on notice that your procedural due process claim included a First Amendment theory.

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You don't refer to First Amendment.

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You don't refer to retaliation.

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You don't identify what liberty or property interest is involved.

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Why was paragraph 12 sufficient to plead a procedural due process claim?

[00:08:40] Speaker 02:
Well, I think it's sufficient because I do believe it put them on notice that speech protection was at issue in the very few paragraphs that were under count three.

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Also, paragraphs 52 to 75 in the background section were under the title violation of due process rights.

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And when you read the complaint as a whole, which is 90% about First Amendment retaliation, I don't think a fair-minded reading of the pleading

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would allow one to conclude that no one knew First Amendment claims were part of the 14th Amendment substantive due process, and no one has asserted any prejudice.

[00:09:21] Speaker 02:
There's no discovery that was missed or opportunity.

[00:09:24] Speaker 00:
In fact... Wait a minute.

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Didn't you attempt to amend the complaint or seek to amend the complaint after losing that issue on summary judgment?

[00:09:33] Speaker 00:
So that means that the defendants had already

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litigated the case through summary judgment and prevailed.

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And so if you were allowed to amend two months after the summary judgment ruling, that just reopens the case.

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Why is that not prejudicial to them?

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And there's some interest in finality in moving the case along.

[00:09:50] Speaker 02:
Agreed.

[00:09:50] Speaker 02:
And we're talking about, I believe that the original summary judgment order was erroneous before we talked about my motion to amend, which was to clarify.

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Unlike, and I really want to hit that, but unlike the Coleman case, the Coleman versus Quaker Oates case, which was cited against me,

[00:10:06] Speaker 02:
That involved a situation where the difference in the claims between disparate treatment and disparate impact involved an entirely different area of discovery.

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There was no argument by my friend that there was some discovery that they couldn't do.

[00:10:23] Speaker 02:
The only prejudice was argued that they wouldn't get the benefit of a summary judgment ruling, one that I thought was erroneous to begin with.

[00:10:30] Speaker 00:
So hadn't discovery closed at that point?

[00:10:32] Speaker 00:
It had.

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So if they did want some additional discovery, they were going to have to seek to reopen discovery.

[00:10:36] Speaker 00:
litigate motions again and then push off the trial date.

[00:10:42] Speaker 02:
At that point, the trial date hadn't been set even, and when it was set, it was set for about four or five months into the future.

[00:10:49] Speaker 02:
One thing though, just taking a step back, what we're talking about is a First Amendment retaliation claim being the predicate of a due process claim, and I don't think anyone can argue that

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They were on notice to take discovery of the First Amendment retaliation claim, and they did.

[00:11:05] Speaker 02:
Well, they didn't issue any written discovery, but they took one deposition.

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And so I've yet to hear what discovery would have needed to be done differently such that the Coleman argument could apply.

[00:11:14] Speaker 03:
Council, what's our, if you will, standard of review for purposes of analyzing your paragraph 112

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procedural due process claim.

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Is it de novo or an abuse of discretion?

[00:11:27] Speaker 02:
So I think that's a de novo review because what we're ultimately doing is reviewing the judge's grant of summary judgment, which was based on his reading of the complaint.

[00:11:36] Speaker 03:
And what case would you cite us to for that?

[00:11:42] Speaker 02:
Your Honor, I don't have one off the top of my head other than the general summary judgment grants are de novo review.

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I don't think there was any fact finding done here.

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And I do think that, as I mentioned, a fair-minded reading of the complaint draws aside from 112, which is fairly specific, and under Count 3.

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In addition, I think the issue has been conceded.

[00:12:01] Speaker 02:
No one has argued about why the court's failure to even mention 112 in its analysis isn't an error.

[00:12:10] Speaker 00:
Okay.

[00:12:10] Speaker 00:
Can I take you back to the previous issue for a moment?

[00:12:14] Speaker 00:
With respect to qualified immunity,

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You've argued here this morning that even if there isn't case law that would put this principle beyond doubt so that any school administrator would know their conduct was unlawful, that it's obvious.

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It was an obvious violation of your client's constitutional rights.

[00:12:33] Speaker 00:
Did you make that argument in the district court, and if so where, and also in your briefs here?

[00:12:41] Speaker 00:
I don't remember seeing it.

[00:12:42] Speaker 00:
I'm not saying it's not there.

[00:12:43] Speaker 00:
We read a lot of briefs before this week.

[00:12:45] Speaker 02:
If it's there, it would be

[00:12:47] Speaker 02:
I didn't have a chance to – so my only summary judgment briefing was on the response, and that's in the record.

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I believe my primary reliance was on the 2016 Ninth Circuit case, to which they responded with the Supreme Court precedent that's been alluded to.

[00:13:03] Speaker 02:
So that was where it was.

[00:13:07] Speaker 02:
I believe that I said

[00:13:09] Speaker 00:
Um, obvious in there, but I would want to search for that word and that would be sufficient to have developed the argument before the district judge.

[00:13:17] Speaker 02:
I don't think I needed to say the word obvious.

[00:13:19] Speaker 00:
Um, well, it's, it's another theory to defeat qualified immunity.

[00:13:23] Speaker 00:
And in fairness, it should have been brief before the district court.

[00:13:26] Speaker 00:
If you wanted to defeat qualified immunity on that basis.

[00:13:31] Speaker 00:
I mean, we have pretty stringent rules about you can't just come up with a theory for the first time when you're standing in front of us at appellate argument.

[00:13:40] Speaker 02:
I think that my argument on summary judgment fairly read would include that I was arguing how obvious this factual scenario is, even if I didn't use the word obvious.

[00:13:50] Speaker 02:
I would like to reserve... Or the case law.

[00:13:51] Speaker 00:
There's case law that talks about whether something's obvious when that standard applies.

[00:13:56] Speaker 00:
Any citations to the relevant case law?

[00:13:58] Speaker 02:
I may have.

[00:13:59] Speaker 02:
I could maybe address it when I get back up here.

[00:14:01] Speaker 03:
You want to save the rest of your time.

[00:14:02] Speaker 03:
Thank you.

[00:14:02] Speaker 03:
Okay.

[00:14:02] Speaker 03:
Very well.

[00:14:03] Speaker 03:
All right.

[00:14:04] Speaker 03:
Ms.

[00:14:05] Speaker 03:
Trudy and Chris Smith, please.

[00:14:12] Speaker 01:
Thank you.

[00:14:12] Speaker 01:
Good morning, Lisa Ann Trutinger-Smith on behalf of the Marana Unified School District and Principal Andrea Deva Jack and her husband.

[00:14:20] Speaker 01:
I will start with the question that you were just ending with, not that you were just ending with, but regarding the due process claim.

[00:14:34] Speaker 01:
And specifically, I mean, when we look at paragraph 112 of the complaint, it does not put anyone on notice that he was arguing that the First Amendment retaliation was a part of the due process claim.

[00:14:46] Speaker 01:
There's no doubt about the fact that this case involves First Amendment retaliation.

[00:14:51] Speaker 01:
It's clearly articulated in Count 1 of the complaint.

[00:14:54] Speaker 01:
Count 3 of the complaint clearly articulates a due process claim, and it

[00:15:00] Speaker 01:
says that she was deprived of her fundamental right to be, well, to direct the upbringing of her children without due process of law.

[00:15:09] Speaker 01:
That's what it says.

[00:15:10] Speaker 01:
And if you look at paragraph 112, it says, the due process clause of the 14th Amendment prohibits the government from censoring speech pursuant to vague standards that grant unbridled discretion.

[00:15:22] Speaker 01:
That's all it says.

[00:15:23] Speaker 01:
It doesn't talk about retaliation for engaging in speech.

[00:15:26] Speaker 01:
And when you look at the case law about vague standards, you still have to prove that the person was deprived of a fundamental property or liberty interest.

[00:15:35] Speaker 01:
And really, I mean, what the court ruled very simply on this argument, he did not establish any fundamental liberty interest in being on your child's campus, that that's not subsumed within the general right.

[00:15:49] Speaker 01:
And therefore, count three,

[00:15:51] Speaker 01:
due process claim was properly read by the court as not including a right to have due process before your First Amendment, before you're retaliated against for engaging in First Amendment, which, I mean, doesn't really make sense anyway.

[00:16:06] Speaker 01:
In fact, there's another case, the Hurt case, which I believe he actually cites in the 12 cases that he says we didn't respond to.

[00:16:17] Speaker 01:
And it says, the court has previously noted

[00:16:20] Speaker 01:
Any due process claims based on First Amendment violations are subsumed into the First Amendment analysis.

[00:16:26] Speaker 01:
You can't retaliate against someone for engaging in First Amendment speech just because you give them due process first.

[00:16:32] Speaker 03:
Council, let me switch you a little bit to a slightly different issue.

[00:16:36] Speaker 03:
Policy KFA punishes speech that the district deems, in quotes, offensive or inappropriate.

[00:16:45] Speaker 03:
But even if the school has authority to regulate student speech, which is different here,

[00:16:51] Speaker 03:
Why is that policy constitutional as applied to a conversation between a parent and a school administrator?

[00:16:58] Speaker 01:
Okay, that's a good question.

[00:16:59] Speaker 01:
And the KFA says that no person shall engage in conduct that may cause interference with or disruption of an educational institution.

[00:17:08] Speaker 01:
And then it goes on to explain how a parent could, or a person,

[00:17:12] Speaker 01:
because that policy relates to members, you know, anyone who's not a student really, involves other people.

[00:17:19] Speaker 01:
And it says a person may also interfere with or disrupt the district function by committing any of the following.

[00:17:25] Speaker 01:
And then one of them is use of speech or language that is so offensive or inappropriate to the limited form of the public school educational environment.

[00:17:33] Speaker 01:
So speech is only covered by KFA if it is so offensive that is inappropriate to the limited forum

[00:17:40] Speaker 01:
of the public school, which no one thinks that happened here.

[00:17:44] Speaker 03:
We respect the fact that when you're talking about an environment with a lot of little children around, get it?

[00:17:52] Speaker 03:
We understand that the school is a different kind of a place.

[00:17:58] Speaker 03:
But here you're talking about a conversation between a parent who is upset and a school administrator who's dealt with it before who is also upset.

[00:18:08] Speaker 03:
However, unfortunate that may be, as a First Amendment focused kind of person, I'm really troubled by this limitation, offensive or inappropriate.

[00:18:19] Speaker 03:
Who makes that standard?

[00:18:21] Speaker 03:
If you look at the record, Hartzell proffers some testimony that at least one district employee found her speech offensive and that thereafter she was banned.

[00:18:35] Speaker 03:
Why wouldn't that be sufficient for a reasonable jury to find that the KFC policy was the moving force behind the ban?

[00:18:44] Speaker 01:
Well, first, the court found that the policy wasn't unconstitutional, and that's a matter of law.

[00:18:51] Speaker 03:
It was what?

[00:18:52] Speaker 01:
The policy itself is not unconstitutional.

[00:18:54] Speaker 03:
Well, we may or may not agree with the court.

[00:18:56] Speaker 01:
I understand that.

[00:18:57] Speaker 03:
But the reality is, let's assume, arguendo, that when you're talking about undefined concepts of what is

[00:19:04] Speaker 03:
offensive or inappropriate.

[00:19:06] Speaker 03:
You're on shaky ground.

[00:19:09] Speaker 03:
So you're in a special environment.

[00:19:10] Speaker 03:
I get that.

[00:19:11] Speaker 03:
My question though is, it seems like, at least the allegations were, that Hartzell got banned after somebody found her speech offensive.

[00:19:21] Speaker 03:
Why couldn't a jury determine that it was the KFC policy that was the moving force behind the ban?

[00:19:32] Speaker 01:
Okay, so two things.

[00:19:34] Speaker 01:
And so this, the court, you know, as you know, ruled on this after the court heard the evidence.

[00:19:39] Speaker 01:
And the policy permits that ban only if that speech that you're talking about interferes with or disrupts the district's function.

[00:19:51] Speaker 03:
But further... And in what way did that happen?

[00:19:53] Speaker 03:
Pardon me?

[00:19:53] Speaker 03:
And in what way did that happen?

[00:19:55] Speaker 01:
It did not.

[00:19:56] Speaker 03:
Okay, so why was she banned?

[00:19:58] Speaker 01:
Because, well, she was banned because she grabbed the principal.

[00:20:01] Speaker 03:
Well, there's a dispute about that.

[00:20:03] Speaker 01:
I understand.

[00:20:03] Speaker 03:
And why isn't that a jury question?

[00:20:05] Speaker 03:
I mean, there's a video, and the video seems to corroborate Ms.

[00:20:11] Speaker 03:
Herzl's point.

[00:20:11] Speaker 03:
She bumped her, didn't grab her.

[00:20:14] Speaker 03:
But it's a question of fact, right?

[00:20:16] Speaker 01:
True.

[00:20:17] Speaker 01:
There's another video, which you also have, in which she tells the police, I put my hand on her and said, don't walk away while I'm talking to you.

[00:20:25] Speaker 03:
OK, well, let's say that's true.

[00:20:27] Speaker 03:
Why is not this whole thing a jury question?

[00:20:30] Speaker 03:
In other words, if the policy KFA was the underlying legal basis that the district relied upon to ban a mother from entering on the campus where her children were there, that's a tough issue.

[00:20:48] Speaker 03:
That's a really tough issue.

[00:20:49] Speaker 03:
And what I want to know is why isn't the factual dispute

[00:20:53] Speaker 03:
a jury question, not a judicial question.

[00:20:56] Speaker 01:
Because there weren't any facts at trial, not one, to show that the banning of Dr. Hartzell had anything to do with the policy.

[00:21:05] Speaker 03:
Well, I don't think so.

[00:21:06] Speaker 03:
I think there was some testimony that Hartzell produced that one district employee found her speech offensive and that was the reason why.

[00:21:13] Speaker 01:
And there was an assistant superintendent who testified that this policy would not allow that kind of ban.

[00:21:22] Speaker 01:
And also, the policy, well, if you look at the words on the policy, it doesn't allow anyone to ban a parent from school, period.

[00:21:30] Speaker 01:
So how can a ban of the parent be pursuant to the policy when the policy does not permit a parent to be banned from campus?

[00:21:38] Speaker 03:
Well, then, let me ask you this.

[00:21:40] Speaker 03:
Let's just say, arguendo, that Ms.

[00:21:42] Speaker 03:
Hartzell

[00:21:43] Speaker 03:
inappropriately grasped the administrator's hand, but she's thereafter banned.

[00:21:49] Speaker 03:
Are you saying that because of that, that you can ban a parent from the district under a criminal statute for some period of time?

[00:22:01] Speaker 03:
Is that what you're saying?

[00:22:04] Speaker 01:
I'm sorry, I'm not sure what you're asking me.

[00:22:07] Speaker 03:
In other words, Ms.

[00:22:07] Speaker 03:
Hartzell was banned from the school district based upon a criminal statute, right?

[00:22:13] Speaker 03:
The claim was she had violated a criminal statute.

[00:22:15] Speaker 01:
That's what the police determined.

[00:22:17] Speaker 03:
We called the police.

[00:22:19] Speaker 03:
We called the police.

[00:22:20] Speaker 03:
You based it on what?

[00:22:21] Speaker 03:
You based it on your policy, right?

[00:22:23] Speaker 01:
No.

[00:22:24] Speaker 03:
What did you base it on?

[00:22:25] Speaker 01:
The fact that the principal was upset because she, her felt, what she felt and what happened according to what Dr. Hartzell told the police.

[00:22:34] Speaker 03:
So if the principal is upset, she's dealt with this woman before, she doesn't like her, she touches her, she calls the police,

[00:22:42] Speaker 03:
She gets arrested, she gets charged, and she's banned from the campus for some period of time.

[00:22:50] Speaker 03:
That's heavy duty stuff.

[00:22:52] Speaker 01:
But there's no evidence, there was no evidence produced at trial that the principal knew about this policy, looked at this policy, relied on this policy.

[00:23:01] Speaker 03:
Then on what did she base it?

[00:23:03] Speaker 01:
She didn't base it on anything because her staff called the police.

[00:23:06] Speaker 03:
What was her right to ban this woman from the campus?

[00:23:10] Speaker 01:
Well, I mean, there you're back to a dispute of fact.

[00:23:12] Speaker 01:
She didn't ban the principal.

[00:23:13] Speaker 03:
Didn't just go to the jury?

[00:23:14] Speaker 01:
I mean, she didn't ban the parent.

[00:23:15] Speaker 01:
But I think that the question here is, is did the, was she banned pursuant to this policy?

[00:23:22] Speaker 03:
What policies was she banned on if not this one?

[00:23:25] Speaker 01:
None.

[00:23:25] Speaker 01:
No policy.

[00:23:26] Speaker 03:
She was banned on no policy.

[00:23:27] Speaker 03:
Correct.

[00:23:27] Speaker 03:
So basically, the principal can say or the administrator can call the police and say, this woman has touched me.

[00:23:33] Speaker 03:
I want her banned for three years.

[00:23:34] Speaker 01:
And that would make her a rogue decision maker, but it wouldn't lead to municipal liability because this is about municipal liability and the district.

[00:23:43] Speaker 04:
Just a minute.

[00:23:43] Speaker 04:
So not to be a rogue administrator, then the principal has to have some basis to, to issue a ban, right?

[00:23:56] Speaker 04:
Is that right?

[00:23:56] Speaker 04:
I mean, some, you know, rational basis.

[00:23:59] Speaker 04:
And I think the contention here is that the rational basis is this policy KFA.

[00:24:05] Speaker 04:
Well, what other rational basis is there?

[00:24:08] Speaker 04:
Well, again, I mean... Well, what other rational basis is there that the principal invoked?

[00:24:14] Speaker 01:
That she was grabbed by the parents during a conversation.

[00:24:17] Speaker 04:
She was what?

[00:24:18] Speaker 01:
Grabbed by the parents.

[00:24:18] Speaker 04:
All right, and that's a question of the fact that you go to the jury, isn't it?

[00:24:22] Speaker 01:
It should, but the

[00:24:23] Speaker 04:
Well, then, so you can't grant summary judgment on that ground.

[00:24:28] Speaker 04:
Is there any other ground that you depend on?

[00:24:30] Speaker 01:
Well, this isn't summary judgment.

[00:24:31] Speaker 01:
This is a Rule 50 motion after the evidence.

[00:24:33] Speaker 04:
A Rule 50 motion.

[00:24:34] Speaker 04:
You can't depend on a Rule 50 motion.

[00:24:36] Speaker 01:
And the court found, and correctly, that, and I understand that you made us agree, but that the policy is not unconstitutional because it does not allow a parent to be banned, but also the policy goes.

[00:24:46] Speaker 04:
Well, just a minute.

[00:24:49] Speaker 04:
You're getting ahead of my question, and I think you're getting ahead of yourself.

[00:24:54] Speaker 04:
What did the principal depend on to exercise her power of banishment, if not this policy?

[00:25:02] Speaker 04:
Where did that right arise from?

[00:25:06] Speaker 01:
Nothing.

[00:25:07] Speaker 04:
So it was completely arbitrary?

[00:25:10] Speaker 01:
No.

[00:25:10] Speaker 04:
Well, she must have some right to do it.

[00:25:12] Speaker 01:
She spoke to the police officer, and according to the police, she's

[00:25:19] Speaker 01:
They indicated, actually not even her, there's nothing in there that says it was her, that the school wants you trespassed.

[00:25:27] Speaker 01:
The police issued a no trespass in connection with charging her with assault.

[00:25:33] Speaker 04:
Didn't they issue that in effect at the request of the school?

[00:25:37] Speaker 01:
They say that the school asked for it, but there was no evidence about who did.

[00:25:40] Speaker 01:
But yes, they do say that.

[00:25:41] Speaker 04:
So again, I mean, we go back to the principal's management, which is, you know, exclusion from school.

[00:25:50] Speaker 04:
What is the basis of that decision if it's not the KFA policy?

[00:25:56] Speaker 04:
Well, what right does she have to do that?

[00:25:57] Speaker 01:
Maybe she doesn't.

[00:25:59] Speaker 04:
But the question is... So in other words, it's a fair argument for the plaintiff.

[00:26:05] Speaker 04:
It would have been a fair argument.

[00:26:07] Speaker 04:
for opinions to make that the principal's decision was completely arbitrary because it was not based on any policy of the school?

[00:26:16] Speaker 01:
Perhaps, but they didn't ever make that argument.

[00:26:20] Speaker 04:
And the question- But that's your defense now.

[00:26:21] Speaker 04:
Well- It was not based on any policy.

[00:26:23] Speaker 01:
My defense is that the municipality cannot have liability unless the banishment was pursuant to a policy.

[00:26:33] Speaker 01:
and the only policy does not permit the banishment.

[00:26:36] Speaker 01:
So therefore, the municipality cannot be responsible for what the principal did or didn't do, but for this allegation, because it wasn't pursuant to a policy.

[00:26:51] Speaker 00:
I think there's a disconnect between the panel and between you with respect to what was the basis of the trespass and the order

[00:27:01] Speaker 00:
Dr. Hertz will not come onto the campus.

[00:27:03] Speaker 00:
So if I understand what you're saying is it wasn't based on policy because the policy didn't allow that.

[00:27:09] Speaker 00:
But if a parent or another person comes into the school and assaults somebody or scrimps profanity in their face or grabs them or does any of these things, it may not be listed in any policy.

[00:27:21] Speaker 00:
Individuals involved seem to have some right to seek assistance from law enforcement to ask that the person not be allowed on the premises.

[00:27:28] Speaker 00:
It has nothing to do with the KFA policy.

[00:27:31] Speaker 00:
I mean, that's how I'm viewing what your argument is, is that this isn't a policy issue of municipal liability.

[00:27:38] Speaker 00:
This is an interaction in which somebody involved thought that law enforcement needed to be summonsed.

[00:27:45] Speaker 00:
Exactly.

[00:27:46] Speaker 01:
And although some of the circumstances that you described might possibly also invoke this policy, it wasn't.

[00:27:53] Speaker 01:
I mean, this case didn't, and this policy wasn't invoked, and the policy still wouldn't allow the trespass

[00:28:00] Speaker 01:
on it, it's just not in the policy.

[00:28:02] Speaker 01:
And so the municipality cannot be responsible for that because it's not pursuant to their policy.

[00:28:08] Speaker 03:
And what do you do with the fact that Ms.

[00:28:10] Speaker 03:
Hertzel claimed and asserted that a district employee found her speech offensive and that that's the reason why she was barred?

[00:28:19] Speaker 01:
Well, there isn't any even dotted line drawn between whatever district employee might have found the language offensive and someone asking the police to

[00:28:30] Speaker 01:
you know, ban or yes, to give the no trespass order to Dr. Hartzell based on this interaction this day.

[00:28:37] Speaker 01:
They're just, the judge looked at the evidence and said there isn't any evidence to connect those allegations.

[00:28:44] Speaker 01:
What we had before us was this wasn't pursuant to this policy.

[00:28:48] Speaker 01:
And if it's not pursuant to this policy or a longstanding custom and practice, then the municipality cannot have liability.

[00:28:56] Speaker 01:
I mean, and it's just that.

[00:28:58] Speaker 01:
Why did she do it, or could she do it, or could someone else have not liked her, or any of those things.

[00:29:03] Speaker 01:
Whether or not they're true, they don't give rise to municipal liability.

[00:29:09] Speaker 03:
Other questions by my colleague?

[00:29:12] Speaker 03:
I'm sure we have lots more, but we thank you for your time.

[00:29:14] Speaker 01:
Thank you very much.

[00:29:15] Speaker 03:
Appreciate your argument.

[00:29:17] Speaker 03:
All right, Mr. Jones, you have a little rebuttal time.

[00:29:19] Speaker 02:
Thank you, Your Honor.

[00:29:20] Speaker 02:
I first wanted to address Judge Beatty's question.

[00:29:23] Speaker 02:
I think it's 3ER546 as my summary judgment response on this point.

[00:29:32] Speaker 02:
I cited O'Brien, which is the first Ninth Circuit case I mentioned.

[00:29:36] Speaker 02:
It is a Ninth Circuit case.

[00:29:38] Speaker 02:
It's not a non-presidential case.

[00:29:40] Speaker 02:
that says the constitutional right to be free from retaliation is clearly established.

[00:29:44] Speaker 02:
Then I cited Crensky, the other Ninth Circuit case that I opened with, 2010, quote, the court need not have decided a case on precisely analogous facts for a constitutional right to be considered clearly established.

[00:29:59] Speaker 03:
Now in my... Was that case prior to Al Kidd?

[00:30:03] Speaker 03:
It was.

[00:30:04] Speaker 03:
Al Kitt kind of overrides all that, doesn't it?

[00:30:07] Speaker 02:
I do think that there's a distinction where we have the first order rights, as courts have called them, at issue here versus either Fourth Amendment rights, which are very confusing, or First Amendment in the context of a shoot no shoot situation.

[00:30:22] Speaker 02:
I do think it's very different.

[00:30:25] Speaker 02:
So as to whether I raised the

[00:30:31] Speaker 02:
issue, the question of obvious, I think the language in Kransky that I cited to the judge is almost identical to the obvious language that's been used elsewhere, which I cited in my reply brief here.

[00:30:46] Speaker 00:
You're relying on the citation to the case, but no development of the argument?

[00:30:50] Speaker 00:
There were no explanation to the district judge that, by the way, their qualified immunity defense should fail because this is so obviously unconstitutional.

[00:30:59] Speaker 00:
Anybody would have known that.

[00:31:01] Speaker 00:
That's what I'm asking you, whether you made that argument.

[00:31:05] Speaker 02:
What I've argued is what I decided to, Your Honor.

[00:31:07] Speaker 02:
I had about six issues.

[00:31:08] Speaker 02:
I asked for oral argument.

[00:31:09] Speaker 02:
It was declined.

[00:31:10] Speaker 02:
I would have loved to have developed any of these points.

[00:31:13] Speaker 02:
Lastly, the KFA policy, I believe, was misquoted.

[00:31:17] Speaker 02:
It's in the record.

[00:31:17] Speaker 02:
It doesn't say so offensive.

[00:31:19] Speaker 02:
I think the court knows what it is.

[00:31:20] Speaker 02:
Finally, Exhibit 25 is evidence that this principal is who requested the ban.

[00:31:26] Speaker 02:
I think it was mentioned that there was no evidence.

[00:31:28] Speaker 02:
I see that I'm over.

[00:31:28] Speaker 02:
I'm happy to answer any other questions.

[00:31:30] Speaker 03:
Other questions by my colleague?

[00:31:32] Speaker 03:
Thanks to both counsel for your argument.

[00:31:34] Speaker 03:
This is an interesting and challenging case.

[00:31:36] Speaker 03:
As you know, unfortunately, this kind of thing is happening with greater and greater frequency.

[00:31:41] Speaker 03:
So we appreciate your helping us this morning to decide the case.

[00:31:45] Speaker 03:
The case just argued is submitted and the carrot court stands adjourned for the day.