[00:00:01] Speaker 03:
Good morning, Your Honors.

[00:00:02] Speaker 03:
May it please the Court, Cabral Bonner, with the law offices of Bonner and Bonner for Appellant Kevin Collins.

[00:00:07] Speaker 03:
I'd like to reserve three minutes for rebuttal.

[00:00:10] Speaker 03:
Sure.

[00:00:10] Speaker 03:
I'm going to start with the claims against Officer Height.

[00:00:14] Speaker 03:
False imprisonment based on judicial deception and what the District Court called garden variety false imprisonment.

[00:00:20] Speaker 03:
The facts establish that Height deliberately and recklessly made false statements and omissions that were material to a finding of probable cause.

[00:00:29] Speaker 03:
the district court erred in granting height summary judgment by failing

[00:00:34] Speaker 03:
to view justifiable inferences in the light most favorable to the non-moving party, Mr. Collins.

[00:00:40] Speaker 03:
In doing so, the Court resolved key factual inconsistencies in favor of Height and the City of Oakland, including key questions about credibility.

[00:00:50] Speaker 03:
When the District Court reviewed and analyzed the issue of false imprisonment based on judicial deception, the Court acknowledges that there are key inconsistencies, false statements, omissions that Height made.

[00:01:03] Speaker 03:
But in finding that those omissions were not material, the court makes serious factual leaps.

[00:01:10] Speaker 03:
For example, one of the issues that was left out of the Ramey warrant was the fact that Briggs, the victim's initial statements about the shooter, were that they were someone with long, shoulder-length dreadlocks.

[00:01:23] Speaker 03:
The court makes the determination that that was immaterial because Debris Warren was in jail.

[00:01:29] Speaker 03:
But if you look at the facts regarding those statements, Briggs made those statements about what she saw.

[00:01:35] Speaker 03:
When she's on the phone with her brother, the 911 operator, she says it's someone with dreadlocks.

[00:01:40] Speaker 03:
Immediately after being shot, that's her perception of what happened.

[00:01:43] Speaker 03:
We know she then goes on to make the similar statements with Officer Breznik during her first statement that she gives.

[00:01:51] Speaker 03:
And yes, she says it might be Warren, but she says it might be Warren because Warren also has dreadlocks.

[00:01:57] Speaker 02:
But it seemed to me, counsel, that when you're using the word material, that gets a little slippery in this kind of a case, right?

[00:02:04] Speaker 02:
Because some of the errors or omissions that you're discussing may go to the

[00:02:08] Speaker 02:
weight for an individual bit of evidence that was factored into the overall probable cause determination.

[00:02:17] Speaker 02:
But when I'm looking at materiality, I'm looking at the bottom line materiality.

[00:02:21] Speaker 02:
That is, if those corrections had been made, would the judicial officer have what or had, would she have had what she needed to decide that there was probable cause for the warrant?

[00:02:34] Speaker 03:
So it is material because fundamental to whether or not a person like Briggs is making a reliable identification is their ability to see the person who conducted the crime.

[00:02:47] Speaker 03:
So if the judicial officer for whom receives information with a rain warrant knows that there are these huge material leaps in what she's saying, the description she's providing, it calls into question whether or not she actually saw the person.

[00:03:03] Speaker 02:
Okay, but there's evidence that had nothing to do with the witnesses' identification, right?

[00:03:08] Speaker 03:
Well, there was other evidence, but none of that evidence placed the witness, none of that evidence placed Mr. Collins in the location of the shooting.

[00:03:16] Speaker 03:
The only evidence that puts Mr. Collins at issue is really the second photo lineup.

[00:03:22] Speaker 02:
Well, but what about the...

[00:03:25] Speaker 02:
I guess I should say the neighbor, the person across the street who called in a couple of times, we think it was the same person, and the rental car.

[00:03:31] Speaker 02:
What about that evidence?

[00:03:35] Speaker 03:
calls in a couple times saying that they saw a car with the license plate.

[00:03:39] Speaker 03:
They did not see the license plate or record the license plate on the night of the shooting.

[00:03:44] Speaker 03:
They saw a silver Hyundai two or three days later.

[00:03:48] Speaker 03:
Silver Hyundai, if it was like a purple Rolls Royce, maybe that would be some compelling evidence.

[00:03:53] Speaker 03:
But it's a silver Hyundai.

[00:03:55] Speaker 03:
A silver Hyundai that they saw days later.

[00:03:57] Speaker 03:
The evidence is that they did not capture and did not see the license plate on the date of the shooting.

[00:04:03] Speaker 02:
But they did see the Uber, the white sticker and so forth.

[00:04:07] Speaker 03:
Not the caller.

[00:04:08] Speaker 03:
The caller did not talk about an Uber sticker.

[00:04:10] Speaker 03:
The Uber sticker came from... The victim, right?

[00:04:15] Speaker 02:
The victim.

[00:04:15] Speaker 03:
Came from the victim.

[00:04:16] Speaker 03:
Came from the victim.

[00:04:17] Speaker 03:
But the reason these are material, because it goes to whether or not she is providing an accurate description of the person who shot her.

[00:04:24] Speaker 03:
If you look at the initial description she made, she talks about a

[00:04:29] Speaker 03:
African-American male, dreadlocks, silver Hyundai, four door, new model, all of those aspects of what she stated initially on 911 became fundamental parts of this investigation.

[00:04:42] Speaker 03:
Yet the district court skips over the fact that she made this comment about Drew B. Warren by making this factual finding that, well, the dreadlocks aren't at issue because it's Drew B. Warren was in jail.

[00:04:54] Speaker 03:
But it goes to whether or not her ultimate identification

[00:04:58] Speaker 03:
is reliable.

[00:04:59] Speaker 01:
Well, what about her identification about him as a client?

[00:05:04] Speaker 01:
And the car seems to be fairly strong evidence, because the silver Hyundai, even though it's not a purple Rolls Royce, it's a great analogy, I think.

[00:05:15] Speaker 01:
It's circling.

[00:05:18] Speaker 01:
She saw that.

[00:05:19] Speaker 01:
And then she gives this description of this gentleman who does match her client.

[00:05:25] Speaker 01:
OK.

[00:05:26] Speaker 01:
So in looking at

[00:05:29] Speaker 01:
Would you have probable cause without these things?

[00:05:32] Speaker 01:
Seems to me you would.

[00:05:34] Speaker 01:
Your argument, as I take it, is, but even so, that's impugned by the flip-flop on her part.

[00:05:41] Speaker 01:
Is that right?

[00:05:41] Speaker 03:
It's not that it's impugned.

[00:05:43] Speaker 03:
The value of it is diminished by the flip-flop, because maybe she had an interaction with a John, and maybe a different person with dreadlocks shot her.

[00:05:57] Speaker 01:
viability of it is lessened, it doesn't mean that it's erased.

[00:06:01] Speaker 01:
And the question we're looking at is, is it material in the end?

[00:06:05] Speaker 01:
Do you still have enough there for probable cause?

[00:06:08] Speaker 01:
And does it matter, for example, that the magistrate found probable cause vis-a-vis the liability of Officer Huyck?

[00:06:16] Speaker 03:
When the magistrate who issues the Ramey warrant or the magistrate during the preliminary hearing?

[00:06:20] Speaker 01:
The preliminary hearing.

[00:06:21] Speaker 03:
Well, the preliminary hearing, once again, is imbued with these false statements by Officer Height.

[00:06:26] Speaker 03:
And to determine whether they're material, we look at what those statements go to.

[00:06:31] Speaker 03:
The false statements about the emotional response.

[00:06:33] Speaker 03:
Why are those material?

[00:06:34] Speaker 03:
Because one of the key elements to determining whether a witness is identifiable or reliable is the certainty demonstrated at the confrontation.

[00:06:45] Speaker 03:
If we look at the evidence between the first and the second photo lineup, the state of the evidence at that point, we have different identifications by Briggs.

[00:06:54] Speaker 03:
We have the 911 caller that doesn't place the car on the night of the incident, but several days later.

[00:06:59] Speaker 03:
We have the unnamed, unidentified people who apparently called Ms.

[00:07:06] Speaker 03:
Briggs and said, oh yes, someone who looks like this person was asking about you.

[00:07:11] Speaker 03:
And we have, most importantly, we have the rejection

[00:07:15] Speaker 03:
of Mr. Collins as the shooter by Briggs during the first photo lineup.

[00:07:21] Speaker 03:
That's the state of the evidence.

[00:07:22] Speaker 03:
So that's what Haidt has to overcome.

[00:07:24] Speaker 03:
We know that Haidt is 100% sure that Collins is the shooter.

[00:07:28] Speaker 03:
So then we have the second photo lineup.

[00:07:30] Speaker 03:
She looks at the photos one time, two times, three times, and then selects a filler on the third time through.

[00:07:36] Speaker 03:
So at this point, she's selected a filler during the first photo lineup.

[00:07:41] Speaker 03:
The first person she selects in the second photo lineup is also a filler.

[00:07:45] Speaker 03:
She continues to look at the photos a fourth time through, comments on lots of photos.

[00:07:50] Speaker 03:
It's 15 minutes after she selects the filler.

[00:07:54] Speaker 03:
She signs the document saying that Collins is a shooter.

[00:07:57] Speaker 03:
That does not create a high level of reliability in her selection, which when countered at, when you look at an unequivocal no in the first photo lineup and then a maybe in the second photo lineup, those things have to be bolstered.

[00:08:15] Speaker 03:
And that's why Height invents this emotional response to lend certainty to her

[00:08:24] Speaker 03:
her selection.

[00:08:26] Speaker 03:
And that's why those things are material.

[00:08:29] Speaker 03:
We're not talking about an officer who made a close call.

[00:08:32] Speaker 03:
We're talking about officer who recognized that probable cause wasn't present.

[00:08:36] Speaker 03:
He even testified after the first photo lineup, there's no probable cause.

[00:08:41] Speaker 03:
But those other things were present.

[00:08:43] Speaker 03:
Information about the car was present.

[00:08:45] Speaker 03:
The 911 call was present.

[00:08:47] Speaker 03:
But after the first photo lineup, he has not only is there no probable cause,

[00:08:51] Speaker 03:
But there's exculpatory evidence in the form of the rejection of Collins as the shooter.

[00:08:57] Speaker 03:
That's what Height has to overcome.

[00:08:59] Speaker 03:
And that's why at that point, the issues that he, the omissions and the misstatements are in fact material because he's trying to overcome her rejection of Collins during the first photo lineup.

[00:09:15] Speaker 03:
And that emotional response and his lies about that emotional response also taint the preliminary hearing.

[00:09:21] Speaker 03:
Because Height testifies to seeing this emotional response on the video.

[00:09:26] Speaker 03:
The video does not show it.

[00:09:28] Speaker 03:
It's just not there.

[00:09:30] Speaker 03:
And he tells the court, he tells the judge, when the judge asks them, are you basing this on what you saw in the video?

[00:09:37] Speaker 03:
Because he doesn't just say what's key about what he says during the preliminary hearing, what Height says about the preliminary hearing.

[00:09:43] Speaker 03:
is she says, ultimately, she indicated, well, this is at ER 337, she reverted back to photograph number four as the photograph of the suspect.

[00:09:54] Speaker 03:
The court asks, so you're basing that on the video that you watched?

[00:09:58] Speaker 03:
Answer, yes.

[00:09:59] Speaker 03:
So that leaves the impression that she initially thought it was Collins, maybe saw someone else that looked like him, and then reverted back to Collins.

[00:10:08] Speaker 03:
But that's not on the video.

[00:10:09] Speaker 03:
That is an outright lie.

[00:10:11] Speaker 03:
That is creating evidence for this judge to support the certainty of her decision that was not there.

[00:10:19] Speaker 03:
And the fact that he lied about that shows, and the fact that the judge asked him, is why that's so material, because without it,

[00:10:27] Speaker 03:
We have her in that second photo lineup essentially saying that four of the six people look like the shooter.

[00:10:36] Speaker 03:
So she's identified a total of five people now that could be the shooter.

[00:10:40] Speaker 03:
So that level of reliability does not create probable cause when looked at at the state of the evidence after

[00:10:48] Speaker 03:
the first photo lineup where she has rejected Collins.

[00:10:51] Speaker 03:
And those are the inferences that the judicial court ought to have looked at and ruled in favor of, found in favor of Collins to say, yes, there is materiality and therefore the intention needs to go to the jury to determine whether he did these things because he recognized there was no probable cause and he had to put his thumb on the scale in order to create an opportunity to

[00:11:17] Speaker 03:
Arrest the person he 100% believed was the sure council.

[00:11:22] Speaker 02:
Did you want to reserve four minutes?

[00:11:24] Speaker 03:
I did you're there.

[00:11:25] Speaker 03:
Oh, okay.

[00:11:26] Speaker 03:
I wanted to Just say briefly on the issue of the county that the key to whether a photo line-up is imperiously subject Suggestive is whether the photo stands out from the others and if you look at that second photo lineup And you just casually look through it's clear that mr. Collins picture to the side squinted not face-on

[00:11:47] Speaker 03:
Jumps out from the page and therefore that second lineup was was was impermissibly Suggested.

[00:11:54] Speaker 03:
Thank you.

[00:11:54] Speaker 02:
Thank you.

[00:11:55] Speaker 00:
We'll hear from opposing counsel, please Good morning your honors may it please the court Kevin Gilbert for the county defendants.

[00:12:10] Speaker 00:
I

[00:12:11] Speaker 00:
Essentially, the claims and the arguments of the appellant are based upon a proposition that there was mysterious disputed issues of fact at the trial court level, and that the photo lineup was somehow impermissibly suggestive.

[00:12:26] Speaker 00:
Now, those claims ignore a few simple propositions.

[00:12:30] Speaker 00:
First and foremost, there are no actual factual disputes.

[00:12:34] Speaker 00:
As the court has stated most recently in Agdefa v. Smith and in numerous Supreme Court decisions, there has to be a material disputed fact.

[00:12:44] Speaker 00:
Here, the appellant relies upon the statement and the opinions of Officer Height, where he admits

[00:12:52] Speaker 00:
I had a conversation with Deputy District Attorney Dewar and then argues that there's a conflict in the evidence or a credibility issue because Deputy Dewar's comment is, I have no recollection of whether I was ever involved in such a conversation.

[00:13:06] Speaker 00:
Now, numerous cases have addressed that and said that that is not a conflict in the evidence.

[00:13:12] Speaker 00:
In fact, if plaintiff's arguments were to be adopted,

[00:13:17] Speaker 00:
There is no evidence to support plaintiff's claims, because you would have to disregard Officer Hite's testimony.

[00:13:22] Speaker 00:
Now, as the Supreme Court has stated on countless occasions, arguments and speculation of counsel does not qualify as a substitute for evidence.

[00:13:31] Speaker 02:
Well, he has some evidence, counsel.

[00:13:34] Speaker 02:
And he has some indications here that there were some.

[00:13:38] Speaker 02:
stark disparities between the description given to the court and the video of her reaction.

[00:13:45] Speaker 02:
He certainly got that.

[00:13:46] Speaker 02:
His argument, I think his strongest argument is that there are inferences that weren't made in a way that is consistent with our standard.

[00:13:54] Speaker 00:
Understood and agreed.

[00:13:55] Speaker 00:
But my point is that those go to issues related to Officer Height and the City of Oakland.

[00:14:00] Speaker 02:
Deputy District Attorney Dewar- You just made a more sweeping statement that I felt compelled to correct.

[00:14:05] Speaker 02:
That's all.

[00:14:06] Speaker 00:
Thank you, and my comments are focused on Deputy Dewar and the county.

[00:14:10] Speaker 00:
Now turning to Deputy Dewar again, turning to the photo lineup, there is no evidence that she was involved in creating the photo lineup other than a passing comment.

[00:14:21] Speaker 00:
As the evidence has shown, Deputy Dewar had an office at the Oakland Police Department.

[00:14:25] Speaker 00:
She was not involved in accepting this case, in prosecuting this case, in filing this case, or investigating this case.

[00:14:32] Speaker 00:
But again, turning to the actual evidence,

[00:14:36] Speaker 00:
Only comments that are attributed is that she made a comment about if you perform a separate traffic stop, it has to be supported by individual probable cause.

[00:14:45] Speaker 00:
And we know that that was the statement because not only did Officer Height state that, there's an email where that's bolded and underlined that's sent to other officers.

[00:14:54] Speaker 00:
The other comment is that Deputy Dewar was supposedly presented with a second photo lineup and asked, is it appropriate to do a second photo lineup?

[00:15:04] Speaker 00:
and she shared her opinion that yes, it was, which in fact is entirely consistent with Night Circuit precedent.

[00:15:11] Speaker 00:
Now based upon these facts, there are no disputed facts as they relate to Deputy Doerr.

[00:15:17] Speaker 00:
Going further, plaintiff's arguments insinuate that Deputy Doerr somehow participated in a civil rights violation.

[00:15:24] Speaker 00:
no case that I could find ever opined or concluded that there was sufficient integral participation by a disk attorney simply because they asked her to question that was posed walking down the halls.

[00:15:38] Speaker 00:
They weren't presented the case, they didn't want to involve, but that goes one step further as even if the photo lineup was somehow suggestive, and that's a big if because as we stated in pages 28 to 32 of our opening brief, our answering brief,

[00:15:54] Speaker 00:
every single complaint that plaintiff makes.

[00:15:57] Speaker 00:
The Ninth Circuit has issued published decisions that confirm that they are appropriate.

[00:16:03] Speaker 00:
It's acceptable to do a second lineup.

[00:16:05] Speaker 00:
And in fact, the Supreme Court has stated it's nearly impossible to have a lineup that doesn't have deviances in some of the individuals.

[00:16:13] Speaker 00:
There's no evidence that she was ever presented the first lineup or that she would have known that they'd been able to compare the photos.

[00:16:19] Speaker 00:
And in fact, the evidence confirms that the victim asked for a second photo lineup.

[00:16:26] Speaker 00:
So going past integral participation, and I'm focused on the 1983 claims only because plaintiffs abandoned their state law claims.

[00:16:33] Speaker 00:
They were not addressed in the opening brief at all or in the reply brief and pursuant to the court's decision in Miller versus Fairchild, they would therefore be abandoned.

[00:16:43] Speaker 00:
But going one step beyond integral participation,

[00:16:46] Speaker 00:
Even if there was some initial participation, the question is, were those comments undertaken within the scope of employment where she didn't prosecute, she wasn't investigating, so therefore is it simply a First Amendment right where she has the right to speak her opinion?

[00:17:03] Speaker 00:
where she's not engaged in any type of official action.

[00:17:06] Speaker 00:
But moreover, on that same token, the photo lineup was never used during the criminal prosecution.

[00:17:14] Speaker 00:
And as the court stated in Manson, if a photo lineup, even if it's impermissibly suggestive and improper, if it is not used to secure a conviction, there is not a constitutional violation.

[00:17:30] Speaker 00:
Now, even if plaintiff could overcome all of these hurdles, and every single one of these have to be overcome by plaintiff in order to have the court send the case back, she's still entitled to qualified immunity.

[00:17:44] Speaker 00:
The statements that she made that a second stop would be appropriate are literally verbatim out of published Ninth Circuit law.

[00:17:52] Speaker 00:
The comments about whatever you do, if you edit a photo, you have to make all of them appear similar.

[00:17:57] Speaker 00:
Again, follow the guidance from the Supreme Court.

[00:18:02] Speaker 00:
Unless the court has any questions for me, I will submit on those issues.

[00:18:07] Speaker 02:
It doesn't appear that we do.

[00:18:07] Speaker 02:
Thank you, counsel.

[00:18:08] Speaker 00:
Thank you.

[00:18:19] Speaker 04:
Good morning, Your Honors.

[00:18:20] Speaker 04:
Han Tran from the Oakland City Attorney's Office for the City Defendants.

[00:18:25] Speaker 04:
I wanted to start off with addressing some of the issues that were raised by Appellant's Council, unless Your Honors have any particular questions for me to start.

[00:18:36] Speaker 02:
Go right ahead.

[00:18:37] Speaker 04:
Thank you.

[00:18:38] Speaker 04:
So under this circuit's Chisholm v. Washington State opinion,

[00:18:44] Speaker 04:
In a judicial deception claim, when the district court does a materiality analysis to determine whether or not the alleged misrepresentations or admissions are material to the finding of probable cause, the district court corrects the affidavit

[00:19:01] Speaker 04:
and then supplements it with information that is alleged by plaintiff's counsel in the case.

[00:19:10] Speaker 04:
But what the district court also does is also consider the other evidence that's in the affidavit or in the testimony that are undisputed.

[00:19:20] Speaker 04:
And so I just wanted to address that part because appellant's counsel

[00:19:26] Speaker 04:
mentioned in his argument that the district court made factual findings that were not appropriate, that should have been credibility issues.

[00:19:35] Speaker 04:
Those weren't disputed factual findings.

[00:19:39] Speaker 04:
Those were findings that were in the record and undisputed by appellants, counsel, and appellants.

[00:19:48] Speaker 04:
For instance, I wanted to address the issue of

[00:19:52] Speaker 04:
Of after the first photo lineup, the victims spoke with officer height and explained to officer high that she felt uncomfortable with the photo line that was prepared because it was in black and white.

[00:20:06] Speaker 04:
and she wanted another photo line done in color.

[00:20:11] Speaker 04:
So that evidence came out during Officer Height's testimony at his deposition in this case.

[00:20:17] Speaker 04:
It also came out from Officer Height at the preliminary hearing about eight months after Mr. Collins was arrested.

[00:20:24] Speaker 04:
And Ms.

[00:20:25] Speaker 04:
Briggs, the victim in the case, also testified at the preliminary hearing

[00:20:29] Speaker 04:
and testified to that fact that she was uncomfortable with the result of the first photo lineup because it was in black and white and then she didn't see the John in black and white and that she spoke to Officer Hyde and told him that.

[00:20:43] Speaker 04:
So that piece of evidence that Ms.

[00:20:47] Speaker 04:
Briggs mentioned that she was uncomfortable with the result of the first photo lineup is a fact that

[00:20:54] Speaker 04:
is in the record and that is undisputed by any evidence in this case.

[00:20:59] Speaker 02:
Counsel, I'd like to ask you a couple of questions.

[00:21:01] Speaker 02:
Yes, please.

[00:21:02] Speaker 02:
Your time is running short, and I think we're very familiar with the standards applicable to this case, but this is a concerning case.

[00:21:09] Speaker 02:
And I'm frankly just one voice, but I'm surprised that neither one of you started by acknowledging what happened in this case to the individual who spent two years in jail before being released.

[00:21:19] Speaker 02:
I just feel compelled to say that.

[00:21:21] Speaker 02:
This is a serious mistake.

[00:21:23] Speaker 02:
And so my question, if you forgive my soap box, my question really goes to the piece of evidence that strikes me to be the most concerning.

[00:21:32] Speaker 02:
And of course, that's the great discrepancy, again, my word, between the information that was given to the judicial officer and the video.

[00:21:42] Speaker 02:
right and so this is the part that this uh... i'm quoting biggs became highly emotional i.e.

[00:21:48] Speaker 02:
crying grabbing colin's photo out of the array covering her mouth and bending over at the waist when reviewing his photograph opposing counsel called our attention to that of course because that's the most glaring so my question as a matter of law is whether

[00:22:00] Speaker 02:
You know, we talk about correcting affidavits and typically it's something that was omitted and we factor it in and ask ourselves whether there, we add it in and ask ourselves whether there would have been a probable cause or the converse.

[00:22:13] Speaker 02:
It's rare in my experience to see something that is so, a bit of evidence that seems to be so demonstrably false, so false.

[00:22:21] Speaker 02:
And so my question is, do we have any case law that talks about that when some of the

[00:22:26] Speaker 02:
evidence is not just something that was left out or put in, but is just wrong.

[00:22:31] Speaker 02:
And it's certainly concerning to think that it may have been truly fabricated.

[00:22:35] Speaker 02:
Is there a case law that stands for the proposition that we look at that and consider that in the mix?

[00:22:40] Speaker 02:
What difference that might have made to the judicial officer?

[00:22:45] Speaker 04:
Thank you, Your Honor, for the question.

[00:22:46] Speaker 04:
I'm not aware of any case law that talks about that particular circumstance.

[00:22:50] Speaker 04:
But under the test, the court looks at it, considers it, along with the other evidence that's on the dispute.

[00:22:55] Speaker 02:
How would we do that?

[00:22:56] Speaker 02:
Can you tell me how to just walk me through that and suggest what I should do with this piece of evidence, please?

[00:23:00] Speaker 04:
Well, if I can back up a little bit, Your Honor.

[00:23:02] Speaker 04:
So with regards to the officers, I think what you read was a statement from the affidavit of the officer for the arrest warrant.

[00:23:10] Speaker 04:
And I just wanted to remind Your Honors of a couple of things

[00:23:13] Speaker 04:
addressed in our responding brief.

[00:23:16] Speaker 04:
First, as all the priorities acknowledge, the body count video of the officer that conducted the second photo lineup didn't completely depict or record all the entire second photo lineup.

[00:23:31] Speaker 04:
And so it's also undisputed that the camera and the video footage does not actually depict when... I appreciate that, but he does get inferences in his favor.

[00:23:42] Speaker 02:
So what do we do?

[00:23:43] Speaker 02:
Just take it as a hypothetical if you want.

[00:23:45] Speaker 02:
If we had a hypothetical where there's a piece of evidence like this that's objective, we can look at it and we can see it, and it doesn't match.

[00:23:53] Speaker 02:
In my hypothetical, what was presented to the judicial officer?

[00:23:57] Speaker 02:
What would we do with that?

[00:23:58] Speaker 04:
We would consider it along with the other evidence that's presented in the case that goes towards or against probable cause.

[00:24:04] Speaker 04:
And as your honors mentioned, there are other pieces of evidence in this case that goes towards probable cause.

[00:24:09] Speaker 04:
I think I listed about 10.

[00:24:11] Speaker 02:
What's the strongest evidence that cuts your way?

[00:24:15] Speaker 04:
I think there's a number of evidence.

[00:24:16] Speaker 04:
I'm not sure what the strongest piece of evidence.

[00:24:20] Speaker 02:
Well, you have the neighbor calling in.

[00:24:22] Speaker 02:
We have the rental car, right?

[00:24:25] Speaker 04:
Right, correct.

[00:24:26] Speaker 04:
I was just going to say that a lot of the evidence that we have actually corroborates each other.

[00:24:30] Speaker 04:
For instance, Ms.

[00:24:31] Speaker 04:
Briggs, when she spoke to Officer Hyatt and described her shooter as the John, she described the person as African-American, older, bald, short, in stature.

[00:24:42] Speaker 02:
What evidence do you have?

[00:24:44] Speaker 02:
Maybe you could tick off the evidence that you have that doesn't require, depend upon any interpretation by Officer Hyatt.

[00:24:52] Speaker 04:
Okay, so that's one piece that I just recited that was tape recorded and that's not recited by Officer Hyde, but that's recorded.

[00:25:01] Speaker 04:
It was an audio taped interview of Ms.

[00:25:05] Speaker 04:
Briggs by Officer Hyde.

[00:25:06] Speaker 04:
So that's one piece where Ms.

[00:25:09] Speaker 04:
Briggs described the shooter as their job.

[00:25:11] Speaker 04:
who is short, African-American, bald.

[00:25:15] Speaker 04:
She also described the vehicle that the John drove, which was a silver, newer Hyundai.

[00:25:22] Speaker 04:
And she described it as hella clean, which she then discussed with the officer, meaning that it could have been a rental.

[00:25:28] Speaker 04:
And then she also described that she saw a decal at the front window, excuse me, front windshield that appears to be a lift sticker.

[00:25:37] Speaker 04:
She also described the,

[00:25:43] Speaker 04:
And in regards to what was not mentioned by Appellants Council was that there was a surveillance video that was outside surveillance video that captured the vehicle in question, and Appellants Council acknowledged that the vehicle depicted in

[00:26:00] Speaker 04:
The vehicle depicted in that video was a silver Hyundai.

[00:26:04] Speaker 04:
And in that video, as one saw in that Officer Hyde recorded in his affidavit, you can see someone reach out and you can see a flare, like a little fire from that.

[00:26:18] Speaker 04:
And also in that surveillance video, you can see that there is a decal in the front windshield.

[00:26:23] Speaker 04:
And this, both the testimony of, excuse me, both the statement of Ms.

[00:26:27] Speaker 04:
Brigg and the surveillance video corroborates the caller that you just mentioned, who called the police department, indicated that she observed the actual shootings.

[00:26:39] Speaker 04:
She saw fire come from

[00:26:41] Speaker 04:
out of this silver, newer Hyundai Elantra, which she is specifying even the specific model that she thought was a 2016, 2017 car.

[00:26:51] Speaker 04:
She, just to correct appellant's counsel, so she indicated that she saw that vehicle, didn't get the license on that day, but then saw it again the next day and then took the license plate down and noted it was, I think, 7MIM878.

[00:27:10] Speaker 04:
As your honor mentioned, further investigation by the officer indicated that, you know, that license plate matched a vehicle belonging to Hertz, which they rented exclusively to some Lyft program only to Lyft drivers, which corroborates Ms.

[00:27:27] Speaker 04:
Briggs' statement in the surveillance video that, you know, that's the vehicle involved in the shooting.

[00:27:32] Speaker 02:
And... Thank you.

[00:27:33] Speaker 02:
Let me just check to see if my colleagues have any questions for you, because I think you're significantly over time.

[00:27:37] Speaker 02:
Any further questions?

[00:27:38] Speaker 02:
No.

[00:27:39] Speaker 04:
Oh, I apologize.

[00:27:40] Speaker 04:
I thought I had two minutes left.

[00:27:41] Speaker 01:
It's tricky, but you don't.

[00:27:43] Speaker 01:
It's tricky, but somehow red means stop.

[00:27:44] Speaker 01:
Yeah.

[00:27:45] Speaker 01:
And it's always confusing, so.

[00:27:47] Speaker 04:
My apologies, Your Honor.

[00:27:48] Speaker 01:
Not at all.

[00:27:49] Speaker 02:
Thank you for your argument, Counsel.

[00:27:50] Speaker 04:
Thank you.

[00:27:59] Speaker 03:
So I want to address the question you raised about what the court should do in light of an obviously fabricated statement that's in a Ramey warrant.

[00:28:07] Speaker 03:
So what should be included and what the inferences that should have been drawn in favor of Mr. Collins is, how would that magistrate look at that warrant knowing that the officer involved made false statements?

[00:28:19] Speaker 02:
So let's say the judicial officer decides, I'm going to set aside anything having to do with this person that I think may have fabricated evidence.

[00:28:28] Speaker 02:
This is a hypothetical, and that's a strong word that I just used.

[00:28:30] Speaker 02:
But just go with me on that, if you would, for the purposes of the question.

[00:28:34] Speaker 02:
The judicial officer sets all of that aside.

[00:28:36] Speaker 02:
In this case, there's other evidence that seems to me wasn't dependent upon officer height.

[00:28:41] Speaker 02:
And I want to give you a chance to tell me why you think I'm wrong about that.

[00:28:44] Speaker 03:
Well, the other evidence that's not

[00:28:46] Speaker 03:
that's not dependent officer height does not place Mr. Collins at the location of the shooting.

[00:28:54] Speaker 03:
We have a car, a civil car.

[00:28:56] Speaker 03:
The surveillance video does show a silver car.

[00:28:59] Speaker 03:
It does not show the license plate of that car.

[00:29:02] Speaker 03:
We have the caller.

[00:29:03] Speaker 03:
Caller talks about a silver Elantra.

[00:29:05] Speaker 03:
She spells it Elantra, almost like someone gave it to her to say.

[00:29:09] Speaker 03:
that does not put that car in the location on the day of the shooting.

[00:29:14] Speaker 03:
It puts it there two days later.

[00:29:17] Speaker 03:
And I think what's almost like the Ramey list, or not Ramey, Brady list for a district attorney, the magistrate should have looked at the statement and the

[00:29:32] Speaker 03:
Ramey warrant with the acknowledgement that the officer who's providing it has provided false statements.

[00:29:37] Speaker 02:
So how do I evaluate this Ramey warrant knowing that the officer has lied about it and that's- So forgive me for interrupting, but I think what you want us to do is rather than taking a snapshot of what should have been in there, right,

[00:29:49] Speaker 02:
You want the snapshot, along with knowledge, imputing knowledge to the judicial officer that this, I'm going to use in my hypothetical, fabrication had occurred.

[00:30:01] Speaker 02:
You want both.

[00:30:02] Speaker 03:
I want both.

[00:30:03] Speaker 02:
Is there any case law that says we do that?

[00:30:05] Speaker 03:
There isn't any case law that says we do that, but there isn't a whole lot of case law on fabrications in the Ramey warrant and whether or not that is then

[00:30:13] Speaker 02:
how how the court should deal with that because it's there's more case law on omissions or writes things that we we've taken put out take out but not put in uh... uh... so so my question was whether or not we have any case but i think you're telling you think we we we don't but but i just want to clarify though in terms of procedurally we don't have this we're we're talking now about the officer and we're talking summary judgment yes and

[00:30:42] Speaker 01:
It didn't seem that you challenged materiality so much as you were saying that there are material issues of fact and therefore no summary judgment at this stage.

[00:30:52] Speaker 01:
Am I right about your argument?

[00:30:53] Speaker 03:
What we're saying is that there were inferences regarding the inferences that the court drew in making determinations that the omissions and the false statements were not material.

[00:31:03] Speaker 03:
Those inferences should not have gone in favor of the city of Oakland.

[00:31:07] Speaker 03:
and the questions of whether or not these things should or should not have been in the Ramey warrant, should have fallen on the side of these things were material, because if the magistrate knew everything that we claim should have been in there, they may have come out with a different decision, especially if they knew that Officer Hype was lying.

[00:31:28] Speaker 01:
So if summary judgment is denied, then the case goes to trial?

[00:31:32] Speaker 01:
Yes.

[00:31:32] Speaker 01:
And what's the jury instruction in broad terms?

[00:31:37] Speaker 01:
with respect to this judicial deception.

[00:31:40] Speaker 03:
The jury instruction is, did Officer Height make false statements on the Ramey warrant that was used to determine probable, find probable cause to arrest Mr. Collins, and did he do that intentionally or recklessly?

[00:31:56] Speaker 01:
So the answer to the first part is yes, because that seems to be acknowledged that there were some either false or omissions.

[00:32:02] Speaker 01:
So then at trial it comes down

[00:32:05] Speaker 01:
to intentionality or reckless disregard of the facts.

[00:32:10] Speaker 03:
Exactly.

[00:32:10] Speaker 03:
And so Hite can say, no, that's just what I thought I saw.

[00:32:13] Speaker 02:
Your jury instruction didn't include the word materiality.

[00:32:16] Speaker 03:
Well, that wouldn't be up to the judge.

[00:32:18] Speaker 03:
So the judge has already made a determination.

[00:32:20] Speaker 03:
And I think if the judge had made all the reasonable references in favor of Mr. Collins, he would have found those things to be material.

[00:32:26] Speaker 03:
Because if you really do look at the evidence beforehand, none of it puts Collins in the location at that time.

[00:32:33] Speaker 03:
And when we talk about the

[00:32:35] Speaker 03:
the identification, it's woefully insufficient given how many people she identified and the way that identification went down.

[00:32:44] Speaker 03:
And so we think it's proper for the case to reverse, send it back, and let a jury decide whether Height intentionally did this.

[00:32:50] Speaker 02:
Thank you.

[00:32:51] Speaker 02:
Thank you for your argument, all of you.

[00:32:52] Speaker 02:
We appreciate your argument and advocacy.

[00:32:54] Speaker 02:
We'll take that case under advisement and move on to the next case on the calendar.