[00:00:00] Speaker 01: The next case on calendar for argument, Gonzalez v. Garland, has been submitted on the brief. [00:00:07] Speaker 01: The next case on calendar, Long v. Weeks. [00:00:11] Speaker 01: Counsel for appellant, please approach. [00:00:14] Speaker 01: Proceed. [00:00:15] Speaker 02: Thank you, Your Honor. [00:00:17] Speaker 02: May it please the court, my name is Lee Roystacker, and I represent the appellants, the individual defendants in this case. [00:00:25] Speaker 02: We're here today after the district court denied the officers qualified immunity-based motion to dismiss. [00:00:33] Speaker 02: There are six officers here with differing roles and involvement in the investigation of Ms. [00:00:38] Speaker 02: Long. [00:00:39] Speaker 02: There's four Section 1983 claims alleged and essentially four theories of constitutional violations alleged within those claims. [00:00:50] Speaker 02: Our position is that Ms. [00:00:53] Speaker 02: Long didn't plausibly allege [00:00:55] Speaker 02: under the Twombly Iqbal standard, constitutional violations against each officer in terms of the specific conduct that would make up the causes of action and the theories of liability. [00:01:10] Speaker 02: Our position is also that no clearly established law was shown by Ms. [00:01:16] Speaker 02: Long showing officers in 2003 that the conduct they allegedly committed violated the Constitution. [00:01:25] Speaker 02: It's further our position that the district court didn't do the individualized analysis that's required under this court's precedent. [00:01:36] Speaker 02: There's a preliminary argument made by my colleague on the other side about jurisdiction. [00:01:43] Speaker 02: This is the second time it's been made. [00:01:46] Speaker 02: I believe it's fully briefed. [00:01:48] Speaker 02: Unless there are any questions on the jurisdictional aspect of that, I intend to proceed to the merits. [00:01:57] Speaker 02: I'm going to start with the conspiracy claim, because I think that's probably the easiest in this case to resolve. [00:02:04] Speaker 02: There's two reasons. [00:02:06] Speaker 02: Either the intercorporate conspiracy doctrine precludes the conspiracy claim, as the only two circuit courts that have addressed that issue have found, or it's not clearly established. [00:02:21] Speaker 02: Judge Ralston issued an opinion last October. [00:02:25] Speaker 02: I don't know if she issued it. [00:02:26] Speaker 02: the panel in Lobato, which held just that. [00:02:31] Speaker 02: The application of the inter-corporate conspiracy doctrine to the Section 1983 claims is not clearly established. [00:02:40] Speaker 02: So for either of those reasons, it's our position that district court erred in denying qualified immunity on that claim. [00:02:50] Speaker 02: Next, I'll address the failure to intervene claim. [00:02:52] Speaker 02: And I'm sorry, I'm going to reserve three minutes for a bottle. [00:02:55] Speaker 02: I forgot to do that. [00:02:57] Speaker 02: It's Ms. [00:03:00] Speaker 02: Long's burden to cite controlling case law that would have clearly established the unlawfulness of the officer's conduct at the time it occurred in 2003. [00:03:10] Speaker 02: With respect to the failure to intervene claim, she has not cited any cases that existed in 2003 establishing that an officer has a constitutional obligation to intervene in another officer's [00:03:25] Speaker 02: suppression of evidence, fabrication of evidence, failure to collect evidence or failure to preserve evidence. [00:03:34] Speaker 02: She is also not cited in any cases. [00:03:36] Speaker 02: dealing with after the fact intervention. [00:03:39] Speaker 00: I think it's somewhat fairly clearly established that you can't destroy evidence, you can't fabricate evidence, you can't suppress evidence. [00:03:45] Speaker 00: Those, I think, are clearly established. [00:03:48] Speaker 00: It's probably not too far from that to say you can't knowingly watch somebody do that and then do nothing about it. [00:03:55] Speaker 00: I mean, I think once you get past the conspiracy counts, [00:03:58] Speaker 00: The question I start having, or count rather, this question I start having is, you know, we're only at the 12b6 stage. [00:04:05] Speaker 00: We have some case law that says, you know, at the 12b6 stage, we're a little more reticent on qualified immunity. [00:04:11] Speaker 00: Why wouldn't that observation apply here, given, you know, the complaint is not bare bones, it's, you know, fairly substantial? [00:04:18] Speaker 02: Well, the Supreme Court obviously has made it incredibly clear that [00:04:23] Speaker 02: The analysis needs to be specific. [00:04:26] Speaker 02: It has to be specific case law, not general propositions. [00:04:31] Speaker 02: There's a general proposition, obviously, can't destroy evidence that's exculpatory. [00:04:38] Speaker 02: You can't fabricate false evidence. [00:04:41] Speaker 02: But the analysis for the failure to intervene is, was there case law existing in 2003 that an officer could read and say, if I see somebody, [00:04:52] Speaker 02: fabricating evidence, I have an obligation under the Constitution to do something about it. [00:04:57] Speaker 00: Well, but I mean, in some ways, this claim depends a little bit on the facts. [00:05:01] Speaker 00: And so it seems to be linked in a way that the conspiracy claim maybe isn't, because you have a sort of a legal, purely legal argument there on that one. [00:05:11] Speaker 00: But on this one, I mean, there's allegations of suppression of evidence, fabrication of evidence, failure to collect and preserve evidence. [00:05:20] Speaker 00: If the plaintiff proves all those allegations and also proves that their officers knew about those things and did nothing about that, would that not be a constitutional violation? [00:05:32] Speaker 02: Well, it could be a constitutional violation. [00:05:37] Speaker 02: But the question is, for qualified immunity, accepting what you're saying is pled, the question is whether it was clearly established at that time that that [00:05:47] Speaker 02: Failure to intervene would be the constitutional. [00:05:49] Speaker 00: Does it not depend on what the facts end up showing? [00:05:51] Speaker 00: Because the facts right now are allegations. [00:05:55] Speaker 00: But the allegations are somewhat serious, given the fact that Long was incarcerated for many years and then released after it was determined that she shouldn't be kept in jail. [00:06:11] Speaker 02: Well, I think we addressed your second point last. [00:06:17] Speaker 02: I'm out. [00:06:18] Speaker 02: It's clear in the record, Ms. [00:06:20] Speaker 02: Long was released for insufficient, ineffective assistant counsel. [00:06:26] Speaker 02: She was in no way exonerated. [00:06:28] Speaker 02: She's never been found factually innocent. [00:06:30] Speaker 00: That's true, although there have been some statements by various judges in the case questioning the evidence, which doesn't, we don't know what the truth of any of this is, but it just raises the question of if she's able to succeed on some of these theories, prove them, whether she could show prejudice. [00:06:47] Speaker 02: I think the question of whether it was clearly established in the failure to intervene context has to be separated from the question of whether it was fairly established in the suppression of evidence, fabrication of evidence, failure to collect, or failure to preserve context. [00:07:07] Speaker 01: But we have cases that talk about excessive force and failure to intervene. [00:07:12] Speaker 02: Correct. [00:07:13] Speaker 01: And so then do those cases carry over [00:07:17] Speaker 01: to the collection of evidence or the preservation of evidence? [00:07:22] Speaker 02: Well, it's certainly our position that they don't, because that's the perfect example of a case not being factually similar enough to alert an officer to a particular act that would be unconstitutional. [00:07:36] Speaker 02: Excessive force is much different than failing to collect evidence. [00:07:41] Speaker 01: Going back to that, is there a constitutional obligation to collect evidence? [00:07:47] Speaker 01: If a police officer fails to take fingerprints, for instance, at a scene, can a constitutional violation arise from that? [00:07:56] Speaker 02: In our position, no. [00:07:59] Speaker 02: There is no constitutional obligation to collect any particular piece of evidence. [00:08:04] Speaker 04: I guess under your reasoning, cases where a wrongful conviction, where it's based on police incompetence or sloppiness, rarely will lead to a successful Section 1983. [00:08:18] Speaker 04: It has to be something more overt, intentional, deliberate. [00:08:21] Speaker 02: Yeah, absolutely. [00:08:21] Speaker 02: I think that's both Devereux and Cunningham. [00:08:24] Speaker 02: Both say that. [00:08:27] Speaker 02: Sorry, sort of lost track of where I was at. [00:08:29] Speaker 02: We kind of shifted into the other realm. [00:08:34] Speaker 02: Judge Ralston, your point is there are certainly excessive force cases. [00:08:38] Speaker 02: But Ms. [00:08:40] Speaker 02: Long didn't cite a single case that dealt with fabrication of evidence, suppression of evidence, fair to collect. [00:08:47] Speaker 01: Well, Devereaux does. [00:08:51] Speaker 01: It's not a fair to intervene case, but it talks about fabrication of evidence, doesn't it? [00:08:56] Speaker 02: Yeah, correct. [00:08:58] Speaker 02: I'm talking about, I'm still on the failure to intervene claim. [00:09:01] Speaker 02: Because like you said, there's failure to intervene force cases, a couple from the circuit dealing with searches, but none dealing with fabrication of evidence or any of the constitutional claims that she makes. [00:09:16] Speaker 02: And in fact, there are a few cases from other circuits, the blood sow case from the 10th Circuit, [00:09:25] Speaker 02: which said it wasn't clearly established, that suppression and fabrication of evidence, that you had to intervene in that sort of conduct. [00:09:34] Speaker 02: There's also cases from other circuits talking about how it's not clearly established being that it applies outside the force context. [00:09:41] Speaker 00: If a police officer saw another police officer [00:09:46] Speaker 00: completely fabricating a case and watched it happen and knew it was happening, your position is not clearly established that you had any duty to say anything about that? [00:09:55] Speaker 02: Well, from a constitutional standpoint, no. [00:10:00] Speaker 02: It certainly is probably morally wrong. [00:10:05] Speaker 02: It could be tortious under state law. [00:10:09] Speaker 02: It could be a violation of procedure or practice, but [00:10:14] Speaker 02: At least in 2003, there was nothing indicating that it was clearly established that you had to step in and do something about it, or you were violating the Constitution. [00:10:24] Speaker 00: How do you address, I mean, we have sort of general statements in our cases saying, you know, there's a duty to intercede when, you know, officers see an officer violating the, you know, constitutional rights of a suspect or citizen. [00:10:36] Speaker 00: They don't, they just kind of state that. [00:10:38] Speaker 02: Yeah, I mean, that's a general statement of law, I think. [00:10:41] Speaker 02: It doesn't meet the specificity requirement that the Supreme Court demands. [00:10:47] Speaker 02: You know, it's almost the same as, you know, you have an obligation not to fabricate evidence. [00:10:54] Speaker 02: You have an obligation not to use excessive force on somebody. [00:10:57] Speaker 02: Those are general statements of law. [00:10:59] Speaker 02: You have to go another step and look at exactly what the conduct was and the circumstance. [00:11:05] Speaker 02: And in this case, with this many different officers in different roles, [00:11:10] Speaker 02: The analysis really requires taking every officer specifically, finding out what is factually alleged against each officer, and then determining whether that's a constitutional violation. [00:11:24] Speaker 02: And then whether that conduct, it was clearly established when it occurred that it violated the Constitution. [00:11:33] Speaker 02: And that's one of the biggest problems we have with what the district court did. [00:11:36] Speaker 02: It really didn't engage in that specific analysis as to each individual officer with respect to the allegations against each of them under each of the theories. [00:11:46] Speaker 04: Can you address the allegation that the police suppressed the fact that they allegedly threatened one of the witnesses, I think his name was Dills, about the time that he dropped off Ms. [00:11:58] Speaker 04: Long at the house? [00:11:59] Speaker 04: Can you address that one? [00:12:00] Speaker 02: Well, the allegations is they threatened him with prosecution. [00:12:04] Speaker 02: It wasn't like a threat of physical harm. [00:12:08] Speaker 02: And the case law is pretty clear that threats of prosecution alone are insufficient to establish the coercion necessary to constitute fabrication of evidence. [00:12:22] Speaker 02: And there's also stuff in the record that the district court traditionally noticed about Ms. [00:12:30] Speaker 02: Long's defense counsel in the criminal trial reviewing the interviews of [00:12:35] Speaker 02: the videotape interviews of Mr. Dills and conceded there was no coercion in his statement. [00:12:43] Speaker 02: And I have two minutes left, two and a half minutes, so unless there are any other questions, I'll save that time for rebuttal. [00:13:03] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:13:05] Speaker 03: I'm Steve Art, and I represent Kim Long. [00:13:08] Speaker 03: Ms. [00:13:09] Speaker 03: Long was wrongly convicted when she was framed for a murder she didn't commit by six Corona police officers. [00:13:15] Speaker 03: Her first amended complaint in this Section 1983 lawsuit identifies in detail how each one of the officers violated Long's clearly established constitutional rights when they suppressed critical exculpatory and impeachment evidence, [00:13:30] Speaker 03: when they fabricated false witness statements, and when they destroyed critical physical evidence. [00:13:36] Speaker 03: Judge Slaughter correctly denied qualified immunity on the pleadings. [00:13:41] Speaker 03: With just a couple of exceptions that we've heard about in the opening argument this morning, the defendant officers don't take Long's complaint as true and argue it fails to state claims of clearly established constitutional law. [00:13:55] Speaker 03: Instead, they contend that the things in their brief, they contend the things in the complaint did not happen at all. [00:14:01] Speaker 03: They contest the facts by pointing to, improperly, to materials outside of the record or outside of the complaint, and they mischaracterize the allegations in the complaint. [00:14:12] Speaker 01: Counsel, what's your response to opposing counsel's contention that the court did not conduct an individualized analysis? [00:14:19] Speaker 03: Yeah, so a few responses to that, Your Honor. [00:14:25] Speaker 03: The complaint was initially dismissed because of a group pleading issue that the district court identified in the district court said come back with more detail about exactly who did what. [00:14:33] Speaker 03: And so the first amended complaint does that. [00:14:36] Speaker 03: And this is not a complaint that pleads broad claims of fabrication suppression and destruction of evidence. [00:14:41] Speaker 03: against the whole group of officers. [00:14:43] Speaker 03: It says, here are the particular officers who suppressed particular items of evidence. [00:14:49] Speaker 03: Here are the two officers who fabricated witness statements from this one witness, Anderson. [00:14:55] Speaker 03: Weeks alone fabricated witness statements from Dills. [00:14:58] Speaker 01: So it's very particular in the- What I'm more pointing to is usually when we get an order from the district court, it will say for each [00:15:10] Speaker 01: individual officer, whether or not that officer is entitled to qualified immunity based on that officer's particular involvement, because there has to be personal involvement of the officer in the constitutional infraction. [00:15:23] Speaker 01: So I'm asking you, did the district court perform that function for each one of the officers in this case in deciding the qualified immunity? [00:15:32] Speaker 03: Your Honor, I think the direct answer to that question is if you look at the order, the order. [00:15:36] Speaker 01: No, I'm asking you to tell me where in the order [00:15:39] Speaker 01: the district court conducted the, we've read the order, trust me. [00:15:44] Speaker 01: But I'm asking you to point us in the... [00:15:47] Speaker 01: record in the order of what you're relying on to say that the individualized analysis was conducted. [00:15:52] Speaker 03: I don't think it was, Your Honor, to be perfectly clear. [00:15:54] Speaker 01: That's why I asked you the question. [00:15:55] Speaker 01: Yes, no, no, absolutely. [00:15:56] Speaker 01: You got there eventually, but it took us a long time. [00:15:58] Speaker 03: I appreciate the question. [00:15:59] Speaker 03: But I suppose my response to is that it doesn't matter in this posture. [00:16:04] Speaker 03: And here's why. [00:16:05] Speaker 03: This court's review on a qualified immunity appeal of the question whether the complaint plausibly pleads a clearly established violation of constitutional law taking the allegations as true is de novo. [00:16:15] Speaker 03: And so this court can look at the complaint and determine whether it states a constitutional claim as to each and every one. [00:16:21] Speaker 01: So you're asking us to do the work that we usually get from the district court? [00:16:25] Speaker 01: Because that's what we usually get from the district court. [00:16:28] Speaker 01: Is qualified immunity is granted as to Officer A, is denied as to Officer B, is granted as to Officer C. So you're asking us actually to do that. [00:16:37] Speaker 03: I think, Your Honor, in every case, this court is doing that at the pleading stage on a motion to this one. [00:16:43] Speaker 01: No, no, no. [00:16:43] Speaker 01: That's not true. [00:16:44] Speaker 01: we generally get an order from the district court that tells us what the district court has found as to each defendant and whether or not that defendant is entitled to qualified immunity. [00:16:56] Speaker 01: We generally don't do that work here for the first time. [00:16:58] Speaker 03: No, I appreciate that, Your Honor, but the standard of review is de novo. [00:17:03] Speaker 03: So this court is looking at the allegations in a complaint in this posture and asking the question, does this complaint, irregardless of what the district court has said, [00:17:14] Speaker 03: or not set. [00:17:15] Speaker 03: State clearly established constitutional violations. [00:17:18] Speaker 01: I beg to differ with you. [00:17:19] Speaker 01: We're reviewing the district court's decision, not looking at the complaint in the first. [00:17:24] Speaker 01: I won't speak for my colleagues, but I generally am reviewing the district court decision and looking to see whether the district court's determination on qualified immunity [00:17:35] Speaker 01: is consistent with the law or not. [00:17:37] Speaker 03: And Your Honor, I don't have disagreement with you. [00:17:39] Speaker 03: In all of the qualified immunity appeals that I've done, they're from orders that are generally, whether it's summary judgment or the motion dismiss stage, pretty specific about which defendants did which. [00:17:50] Speaker 03: I think our point here is rather than remanding for the particularized determination [00:17:58] Speaker 03: at this stage of the case and then receiving another qualified immunity appeal, this court's de novo standard review allows it to look at the allegations in the complaint. [00:18:06] Speaker 01: And those allegations are specific as to the different defendants on each of the different theories and the different- Well, we could say, because the district court did not conduct an individualized analysis, it erred in denying qualified immunity. [00:18:21] Speaker 03: But there would have to be an error there in the denial of qualified immunity. [00:18:26] Speaker 03: In other words, there would have to be something about the district court's order that incorrectly denied some defendant qualified immunity. [00:18:34] Speaker 03: And our position is on de novo review in this court, there is no such error. [00:18:40] Speaker 03: None of the defendants is entitled to qualified immunity taking what is pleaded in the complaint as true. [00:18:45] Speaker 03: There are fundamental suppression of critical items of exculpatory evidence that are [00:18:53] Speaker 03: that are pleaded in the complaint as to each and every single one of the defendants. [00:18:57] Speaker 01: Is there a case that says suppression of exculpatory evidence as opposed to exonerating evidence is a constitutional violation? [00:19:06] Speaker 03: Yes, Your Honor, absolutely. [00:19:08] Speaker 01: I mean, I think the entire case line of- Tell me the strongest case that you have that says it's a constitutional violation to suppress exonerating evidence as opposed to- [00:19:21] Speaker 01: exculpatory evidence as opposed to exonerating evidence. [00:19:25] Speaker 01: All of the cases in the Brady... Give me your strongest case for the proposition that suppression of exonerating evidence, of exculpatory evidence constitutes a [00:19:38] Speaker 01: a violation of 1983. [00:19:39] Speaker 03: OK, I will do that for each of the theories that we alleged in the complaint. [00:19:43] Speaker 03: So that we allege that the defendant police officers suppressed a report that documented their discovery of Long's jacket, blood-free. [00:19:52] Speaker 01: I want a general, I want a holding of a case that says suppression of exculpatory evidence [00:20:01] Speaker 01: is a constitutional violation. [00:20:04] Speaker 03: Kyle's against Whiteley holds that. [00:20:06] Speaker 03: This court's case in Carrillo holds that. [00:20:07] Speaker 03: This court's case in Bailey holds that. [00:20:09] Speaker 03: This court's case in Mellon holds that. [00:20:11] Speaker 01: This court's case in- Point me to the language in Kyle's that you're relying on to support the proposition that suppression of exculpatory evidence is sufficient to state a constitutional claim. [00:20:24] Speaker 01: I mean, the central holding of Kyle's- I want you to point me to the precise language that says, [00:20:31] Speaker 01: Suppression of exculpatory evidence constitutes a constitutional violation. [00:20:35] Speaker 03: So in Kyle's against Whiteley, 514 US 419 at 442 to 446, the Supreme Court. [00:20:40] Speaker 01: 514 US 419. [00:20:43] Speaker 03: 514 US 419 at 442 to 446. [00:20:48] Speaker 01: That's a lot of text. [00:20:50] Speaker 03: It's a lot of text where the Supreme Court is discussing four items of evidence that are, some of them [00:20:59] Speaker 03: impeaching evidence and impeaching of witnesses, and some of them exculpatory in that they undermine the key physical evidence that implicated in Kyle's, the criminal defendant in that case. [00:21:11] Speaker 03: And the Supreme Court says each and every one of them is material and has to be disclosed. [00:21:16] Speaker 01: That's a different point than the point I'm asking you, is because there has to be a case [00:21:23] Speaker 01: would put the officers on notice that this is a constitutional violation. [00:21:27] Speaker 03: Absolutely. [00:21:28] Speaker 03: In that case, Kiles puts the police officers on notice in 1995 that it violates the Constitution not to disclose items of exculpatory evidence that pertain to physical evidence, items of impeachment evidence that contradict key witness statements in the case. [00:21:43] Speaker 01: And those materials, if they were suppressed, then they can't be used in a criminal case. [00:21:51] Speaker 01: But that's different. [00:21:52] Speaker 01: than saying it's a constitutional violation. [00:21:55] Speaker 03: I don't think so, Your Honor. [00:21:56] Speaker 03: I mean, these cases are saying that violates due process to suppress that evidence without any equivocation at all. [00:22:04] Speaker 03: So these cases, and it's not just in the post-conviction context or the criminal context, it's not just directly from the Supreme Court of the United States, but this court's cases like Mellon and Tennyson and Correo make very clear that there is section 1983 liability [00:22:19] Speaker 03: for suppressions of evidence exactly like the suppressions that are at issue in this case. [00:22:25] Speaker 03: As far back as 1984 and 1991, we're talking about clearly established law, not just for a general proposition that you have to disclose, exculpatory and impeachment evidence sort of broadly defined. [00:22:39] Speaker 04: For the Brady materials, they also have to be material, right? [00:22:44] Speaker 04: Yes, Your Honor. [00:22:45] Speaker 04: And so we would have to look at specific pieces of evidence in this case to make sure that even if they were suppressed or not collected, [00:22:52] Speaker 04: that they were material. [00:22:53] Speaker 03: Absolutely. [00:22:54] Speaker 03: You'd have to look to not just the proposition that an officer in general has to disclose evidence, but is the particular type of evidence that, long as pleading was suppressed in this case, the type of evidence that is considered Brady evidence, right? [00:23:10] Speaker 03: And it's considered Brady evidence because it's material. [00:23:12] Speaker 04: And material to this case, right? [00:23:15] Speaker 03: To this criminal case based on this evidence in the case. [00:23:18] Speaker 03: And it goes back to the questions you were asking my colleague earlier. [00:23:22] Speaker 03: At the pleading stage, it's very difficult to engage in that kind of factual analysis and find that the law isn't clearly established, that you can't do something like suppress a report about a key piece of physical evidence. [00:23:36] Speaker 00: How about the conspiracy claim on the intercorporate conspiracy doctrine? [00:23:41] Speaker 00: That one seems tougher for you. [00:23:42] Speaker 03: I agree that it's tougher for us. [00:23:45] Speaker 03: on conspiracy and failure to intervene that are sort of peripheral theories of liability anyway in this case. [00:23:52] Speaker 03: And you know, I'll preface it by saying they don't do a lot of work in this case. [00:23:55] Speaker 00: I was gonna ask you about that. [00:23:56] Speaker 00: I mean, there are additional claims, but I didn't understand what, if somebody has already suppressed or fabricated evidence and that's turned out to be true, it's not clear what failure to intervene would add to that. [00:24:06] Speaker 03: Right, so in this case, as I thought about this argument, I don't think failure to intervene adds a thing. [00:24:13] Speaker 03: Because we allege, for example, that all of the police officers were involved in suppressing a report about their discovery of key physical evidence at the scene. [00:24:23] Speaker 03: And so they all suppressed it, right? [00:24:25] Speaker 03: They were all involved in the actual underlying constitutional tort. [00:24:28] Speaker 03: But to address the arguments that were made about conspiracy and about failure to intervene. [00:24:34] Speaker 03: It takes the qualified immunity doctrine a bit too far, I think, to say that the question is not whether it was clearly established that the conduct at issue was unconstitutional, which I think is what qualified immunity is asking, but whether it's clearly established that a particular theory of liability or defense to that theory of liability exists. [00:24:55] Speaker 03: And I think the inter-corporate conspiracy doctrine is an example of that. [00:24:58] Speaker 03: Police officers aren't reading the case law and asking themselves, I wonder if the Supreme Court is going to apply this rule from the antitrust context to my conspiracy that I'm doing in a police department. [00:25:10] Speaker 03: And because I don't know whether they're going to do that, I'm entitled to quote. [00:25:13] Speaker 03: That's not a functional conception of qualified immunity. [00:25:16] Speaker 03: What is is asking, [00:25:18] Speaker 03: Was it clearly established that you couldn't fabricate the sorts of evidence that were fabricated in this case? [00:25:24] Speaker 03: The answer is yes. [00:25:25] Speaker 03: Then you also can't reach an agreement with another officer to do that. [00:25:29] Speaker 03: So I don't think that the inter-corporate conspiracy doctrine should entitle any officer to qualified immunity in any case. [00:25:37] Speaker 03: I also don't think it should apply here because this is a conspiracy not just among the corona police officers. [00:25:42] Speaker 03: as we allege in the complaint, but also. [00:25:45] Speaker 01: You have to go by what the law says, not why you disagree with it. [00:25:50] Speaker 01: So is there a case that supports your argument that the intra-corporate doctrine should not apply under these circumstances? [00:25:57] Speaker 01: Do you have a case? [00:25:59] Speaker 03: I don't think that I have a case, except I would refer the court to the Supreme Court's analysis in the Ziegler case. [00:26:06] Speaker 03: And what the court in that case is saying is we will import this concept [00:26:11] Speaker 03: that the actions of an from the antitrust context that the actions of an employee can be imputed to the principal to the employer for a section 1983 conspiracy that makes sense in the section 1985 context where the where it's a private conspiracy. [00:26:27] Speaker 03: And what the court is saying is it doesn't make a lot of sense to say the employees of one organization are conspiring together when we impute their conduct via vicarious liability to the principal. [00:26:38] Speaker 03: In the Section 1983 context, the Supreme Court has said in Monell, you can't do that. [00:26:43] Speaker 03: You can't impute the actions of an individual officer in a police agency to the principal. [00:26:49] Speaker 03: That's Monell. [00:26:50] Speaker 03: So I don't think that the doctrine has a sound doctrinal basis [00:26:55] Speaker 03: in the Section 1983 context. [00:26:57] Speaker 03: That's the best answer I can give. [00:26:58] Speaker 01: Let me go back to CALS, because you're relying on that. [00:27:02] Speaker 01: But you will admit that CALS was not a 1983 case. [00:27:05] Speaker 03: Absolutely. [00:27:06] Speaker 01: And there is no discussion about constitutionality in CALS. [00:27:11] Speaker 01: It was just that because the Brady obligations were not fulfilled, the trial had to be redone. [00:27:17] Speaker 03: No, Your Honor. [00:27:18] Speaker 01: Show me in cows where the court discussed the Constitution. [00:27:24] Speaker 01: Show me where the words unconstitutional are set forth in cows. [00:27:28] Speaker 03: I have the case over here, but what I can tell you is it's a case that holds. [00:27:34] Speaker 03: that a petitioner is entitled in the habeas context to post-conviction relief because of due process. [00:27:41] Speaker 01: Post-conviction relief, but not damages under 1983. [00:27:44] Speaker 01: That's an entirely different scenario. [00:27:46] Speaker 03: There is no requirement in the qualified immunity context that the law is clearly established by a prior Section 1983 case extending liability, even if there were. [00:27:55] Speaker 01: The facts have to be set. [00:27:56] Speaker 01: The Supreme Court has told us that we cannot use a general principle of law. [00:28:02] Speaker 01: There has to be some specificity. [00:28:04] Speaker 01: And a case that talks about whether or not someone is entitled to a new trial is not the same as saying someone's constitutional rights have been. [00:28:13] Speaker 01: The Brady obligation is not a constitutional. [00:28:17] Speaker 01: It's a judge-made doctrine. [00:28:19] Speaker 01: It's not a constitutional doctrine. [00:28:22] Speaker 01: So that's why I'm having some difficulty with your using cows as your clearly established law. [00:28:29] Speaker 03: Your Honor, I say I'm out of time. [00:28:30] Speaker 03: May I respond? [00:28:31] Speaker 01: Yes, please. [00:28:32] Speaker 03: So Your Honor, I think that's incorrect. [00:28:34] Speaker 01: OK. [00:28:34] Speaker 03: Kyle's makes very, very clear that the constitutional violation at issue in the case is a violation of due process because of suppression of evidence. [00:28:43] Speaker 03: It violated the 14th Amendment due process clause for the officers in that case to suppress exculpatory evidence and impeachment evidence. [00:28:51] Speaker 01: But this was not imposing personal liability on the officers. [00:28:55] Speaker 01: That's the difficulty I'm having is it's not imposing [00:29:00] Speaker 01: liability on the offices for a constitutional violation, and that's what I think for clearly established law we have to have. [00:29:07] Speaker 03: I disagree with that premise, Your Honor, but I will answer it by saying to the extent that you want to ignore Kyle's against Whitely completely, there are cases in this court, Tennyson, [00:29:19] Speaker 03: Mellon, Carrillo, Bailey, that are arising, actually Bailey's not in the Section 1983 context, but the first three are Section 1983 cases decided [00:29:32] Speaker 03: that in the 1990s, the precise types of suppressions of evidence. [00:29:36] Speaker 01: I understand what you're saying. [00:29:37] Speaker 01: My only trepidation is the Supreme Court has reversed me personally on this point, that the cases have to be at a high level of specificity. [00:29:48] Speaker 01: The facts have to be pretty close, unless it's an obvious violation. [00:29:53] Speaker 01: a constitutional violation. [00:29:54] Speaker 01: So that's why I'm a little bit leery about relying on cases that are not close to the fact. [00:30:01] Speaker 03: As are we, but we don't think we're even remotely close. [00:30:04] Speaker 04: If I can follow up on that, I guess the concern I have is the cases you cite either involve [00:30:10] Speaker 04: deliberate planting of evidence by the police, or the evidence is exonerating or clearly material. [00:30:19] Speaker 04: And here I know you characterize the evidence of the police officers as planting evidence or deliberately doing so. [00:30:26] Speaker 04: It seems more like it's incompetence or laziness. [00:30:29] Speaker 04: And a lot of the exculpatory evidence that you cite to seems to be cumulative at trial. [00:30:36] Speaker 04: So is it really clearly established the facts similar enough, as Judge Raulston was pointing out? [00:30:42] Speaker 03: We think the answer to that is yes. [00:30:44] Speaker 03: So to address the several points that you've just raised sort of in order, first of all, we have pleaded that the officers acted intentionally in suppressing particular items of evidence. [00:30:57] Speaker 03: And so I'll give you one example. [00:30:59] Speaker 03: This report that they found Long's coat on a bloody rug in a bloody crime scene without a speck of blood on it. [00:31:09] Speaker 03: They write down in their report that they consider this an important finding, and they suppress that report. [00:31:13] Speaker 04: But wasn't there later evidence that that was brought up at trial at State Court? [00:31:17] Speaker 03: Not at all, Your Honor. [00:31:18] Speaker 03: The jacket's not even collected as evidence. [00:31:20] Speaker 04: But didn't the detectives testify about the jacket and saying there was no blood? [00:31:24] Speaker 03: They did not, right? [00:31:25] Speaker 03: And so they point to this evidence at trial to say, oh, it's not material. [00:31:27] Speaker 03: But what the evidence says is they tested some of her clothes later. [00:31:31] Speaker 03: It didn't have blood on it, right? [00:31:33] Speaker 03: But actually, when we get into discovery in this case, what the record's going to show is Anderson, who writes that report, is asked on the stand, was there anything interesting that you [00:31:43] Speaker 03: saw at the crime scene and he mentions the jacket in passing. [00:31:46] Speaker 03: Two questions later, he's asked, did you find anything without blood on it? [00:31:50] Speaker 03: Doesn't mention the jacket, right? [00:31:52] Speaker 03: So this is a report that corroborates Long's defense, which is I got to the scene of the crime after the crime occurred. [00:31:59] Speaker 03: You know, I found my boyfriend, I called 911, I took off my jacket and dropped it on the ground. [00:32:04] Speaker 03: I tried to render aid, right? [00:32:06] Speaker 03: And the whole criminal trial, the police are going, ah, it doesn't matter that there's not [00:32:10] Speaker 03: you know, that there's no blood on these clothes, and the prosecutions are, they point to this. [00:32:14] Speaker 03: The police's theory was that she took off the jacket when she committed the... Right, and the prosecution, you know, the prosecution's arguing this too, and the whole time they have suppressed a report in their own files that could have been used to impeach the state's theory of the case, that could have been used to impeach the officers on the stand, and that's just one piece of evidence. [00:32:32] Speaker 03: Take the DIL statement. [00:32:34] Speaker 03: Dills was with Long at the time of the crime. [00:32:38] Speaker 03: His initial statement, we allege, and it's an allegation, two weeks was, I brought her home at 2 a.m. [00:32:45] Speaker 03: She called the police at 2 o' nine. [00:32:49] Speaker 03: And then by the time of trial, Weeks has fed him this full statement where he's saying, actually I dropped her off at 49 minutes before the crime. [00:32:56] Speaker 03: That is the type of material evidence. [00:32:58] Speaker 03: So the allegation there is not just that he was coerced to say something, it's that he said X, [00:33:05] Speaker 03: And then the officer said, no, don't say X, say Y. And didn't disclose that the first thing he said was X. And that is clearly established. [00:33:14] Speaker 03: in Correo and Tennyson and Mellon, that you can't suppress that kind of evidence that could be used to impeach a key witness. [00:33:21] Speaker 03: And in this case, it was the key witness. [00:33:23] Speaker 04: There was also cumulative evidence from neighbors talking about around 120, they heard noises. [00:33:29] Speaker 04: Maybe you're making a good case on the first prong of qualified immunity, but then now we're in the second prong. [00:33:33] Speaker 04: Is there really a factual analogous case? [00:33:35] Speaker 04: And it becomes a much more difficult question. [00:33:39] Speaker 03: There are so many examples of how there are factually analogous cases. [00:33:43] Speaker 03: I mean, Mellon is a case where you have a person who doubts the credibility of the key witness in the case, okay? [00:33:51] Speaker 03: And this court holds, you can't suppress that evidence that you have somebody who says this witness is a liar. [00:33:58] Speaker 03: Here we have a police officer fabricating a false statement, right? [00:34:02] Speaker 03: If you put that police officer on the stand in the criminal case and you know you have the evidence- What was the false statement? [00:34:09] Speaker 03: The false statement was from Dills that he dropped long off at 1.20 a.m. [00:34:14] Speaker 03: in the morning. [00:34:15] Speaker 01: So the officer didn't fabricate this false statement. [00:34:18] Speaker 01: The officer, in your view, solicited a false statement. [00:34:21] Speaker 03: No, he fabricated the statement. [00:34:23] Speaker 01: How could the officer fabricate the statement if he didn't make it? [00:34:26] Speaker 03: Well, he said to the witness, here is what you should say. [00:34:29] Speaker 01: Well, that's witness coercion, not fabrication. [00:34:31] Speaker 03: That's direct fabrication of evidence. [00:34:33] Speaker 01: My case says that if an officer [00:34:38] Speaker 01: influences a witness to testify falsely. [00:34:41] Speaker 01: That's fabrication on the part of the officer. [00:34:46] Speaker 03: So, you know, I guess the answer to that question is the Supreme Court's decision against Banks against Dretke says that you can't coach a witness and then put the witness on the stand without [00:34:59] Speaker 03: revealing what the witness has said to you before. [00:35:01] Speaker 03: This court's cases in Caldwell and Spencer against Peters say a police officer can't hear an account from a witness and then say to the witness or represent that the witness has made another account. [00:35:13] Speaker 03: But I think part of the problem that we're running into in this argument is that these are all factual questions that are going to be resolved later in the case. [00:35:24] Speaker 03: What we've done is we pleaded. [00:35:26] Speaker 01: Even if we assume that the officer [00:35:29] Speaker 01: influence someone to testify differently. [00:35:35] Speaker 01: I'm just curious as to whether there's a case that then says the officer has fabricated the testimony. [00:35:44] Speaker 03: I mean, Caldwell against San Francisco, so the first answer to that question is that's not what the complaint pleads. [00:35:50] Speaker 03: The complaint does not plead that there was undue influence. [00:35:55] Speaker 01: So that's a fabrication on the part of the officer. [00:35:58] Speaker 01: But is that a plausible allegation if the officer didn't make the statement? [00:36:04] Speaker 03: I mean, the officer has gotten a statement from a witness that exculpates my client as the initial statement. [00:36:10] Speaker 03: They were together. [00:36:12] Speaker 03: She gets dropped off at the scene. [00:36:15] Speaker 03: calls 911, and the initial statement from the witness corroborates her account. [00:36:20] Speaker 03: And then the officer says to him, say that you were home 40 minutes earlier than that. [00:36:28] Speaker 03: and the witness goes, okay, I'm gonna do that. [00:36:30] Speaker 03: And the witness provides that testimony at trial. [00:36:32] Speaker 03: That is a clearly established due process violation on the part of the police officer who manufactures the testimony. [00:36:39] Speaker 03: If we were arguing, oh, there was some wishy washy, or if we were pleading in the complaint, there was some wishy washy influence going on, it might be a different case. [00:36:47] Speaker 03: And to address Judge Lee, your cumulative question, [00:36:54] Speaker 03: This court has said many times that officers can't argue, even at the summary judgment stage, that evidence is cumulative and so they didn't have to disclose it, or it's cumulative so it didn't have a material effect on the case. [00:37:06] Speaker 03: The Supreme Court's been really clear in cases like Weary that the effect of this evidence on the criminal proceeding is assessed as a factual matter, taking all of the evidence into account and taking the weakness of the case [00:37:19] Speaker 03: against the criminal defendant. [00:37:21] Speaker 01: All right, counsel. [00:37:22] Speaker 01: We've taken you way over your time. [00:37:24] Speaker 01: I appreciate it. [00:37:24] Speaker 01: Thank you. [00:37:25] Speaker 03: Thank you, Your Honor. [00:37:33] Speaker 02: Thank you. [00:37:34] Speaker 02: I'll be brief, certainly answer any questions the court might have. [00:37:38] Speaker 02: A couple things from my colleague's argument. [00:37:42] Speaker 02: If I heard him right, he got up here and conceded that the district court didn't do the appropriate analysis, did not do it. [00:37:51] Speaker 01: Correct. [00:37:52] Speaker 02: Correct. [00:37:53] Speaker 02: And that alone could be a basis for reversal. [00:37:56] Speaker 02: But it's our position that if the court sends it back for some further analysis by the district court, it could still excise certainly the failure to intervene claim, the failure to prevent or failure, I'm sorry, the inter-corporate conspiracy doctrine. [00:38:20] Speaker 02: The biggest problem I had with my colleague's argument was he was arguing facts that appear nowhere in the complaint. [00:38:30] Speaker 02: That's been our whole issue with this complaint is that it makes these broad generalized allegations about defendants influence this witness. [00:38:42] Speaker 02: Which witness? [00:38:43] Speaker 02: How? [00:38:43] Speaker 02: Which defendant? [00:38:45] Speaker 02: And the explanation or the argument given today was certainly much more factual [00:38:50] Speaker 02: than what's in the complaint. [00:38:52] Speaker 02: And we need to remember that qualified immunity is an immunity from suit. [00:38:58] Speaker 02: One of the purposes is to avoid the discovery process to officers. [00:39:06] Speaker 02: So saying that, well, this is what discovery is going to show. [00:39:11] Speaker 02: This is what we can maybe find out. [00:39:14] Speaker 02: That goes against what qualified immunity is supposed to do. [00:39:19] Speaker 02: The complaint has to plausibly allege facts establishing each of the things that plaintiff alleges were done. [00:39:27] Speaker 02: Coercion, conclusion. [00:39:30] Speaker 02: Suppressed, conclusion. [00:39:33] Speaker 00: I'm not sure I read the complaint that way. [00:39:34] Speaker 00: I mean, frankly, I don't think I read the district court opinion that way either. [00:39:37] Speaker 00: I mean, the district court opinion perhaps could have been written differently, but there's several paragraphs that go through the allegations and talk about the individual officers. [00:39:45] Speaker 00: The allegation in part is that they were working together, so it somewhat makes sense that there's not a separate writing of officer A, B, C, D, and E. [00:39:54] Speaker 00: The complaint goes through specific evidence that was allegedly fabricated or suppressed, who did it and when, and I'm not sure what more you're asking them to do at the 12b6 stage. [00:40:05] Speaker 02: Well, for instance, the fabricating evidence claim is only, it only, the complaint only alleges two officers were involved in fabricating evidence. [00:40:16] Speaker 02: So the other four, that claim shouldn't be around against them. [00:40:20] Speaker 02: The same with the other claims. [00:40:23] Speaker 02: Not all of the officers could have done all of the same thing. [00:40:27] Speaker 02: They each have their individual specific conduct. [00:40:30] Speaker 00: That sounds like something of a cleanup item. [00:40:32] Speaker 00: Of course, there's also allegations about civil conspiracy and favoritism, which presumably is why there's allegations as to everybody on everything. [00:40:41] Speaker 00: And so if there's ways of narrowing this, I suppose that could be done. [00:40:44] Speaker 00: But that's a different question than just simply having the whole case go away. [00:40:49] Speaker 02: Well, as I said earlier, I think each officer under the law is entitled to the individualized and particularized analysis with respect to each officer's conduct and the case law existing at the time. [00:41:03] Speaker 01: Counsel, if the conspiracy claim is out, then what basis would there be for joining the analysis of the officers? [00:41:13] Speaker 02: None, in my opinion. [00:41:16] Speaker 02: You mean as a group? [00:41:18] Speaker 02: None. [00:41:19] Speaker 02: None. [00:41:20] Speaker 02: And one more thing. [00:41:22] Speaker 02: It was interesting, because in some of the examples that my colleague was using, he would say the defendant officers. [00:41:30] Speaker 02: The defendant officers. [00:41:31] Speaker 02: The complaint alleges defendants, including Weeks and Anderson, did X, Y, and Z. But there are no specific allegations against each of them. [00:41:41] Speaker 01: Council, do you agree with the opposing council that the Brady cases, the Cowles case and cases of that nature are clearly established law for purposes of this case? [00:41:52] Speaker 02: I don't. [00:41:53] Speaker 02: You need a Section 1983 case. [00:41:56] Speaker 02: I don't think that's true. [00:41:58] Speaker 00: I mean, we've never said you need a Section 1983 case. [00:42:00] Speaker 00: Section 1983 is premised on a body of constitutional law that can come from elsewhere. [00:42:08] Speaker 02: Perhaps. [00:42:09] Speaker 02: But what this court certainly said in Korea in terms of suppressing evidence is you have to look at exactly what was suppressed to determine whether there is any constitutional violation. [00:42:21] Speaker 01: And there has to be deliberate indifference. [00:42:23] Speaker 02: Correct. [00:42:24] Speaker 02: Correct. [00:42:24] Speaker 02: For instance, an officer's impressions about a witness's credibility, what case has ever held that that has to be disclosed? [00:42:34] Speaker 02: None. [00:42:35] Speaker 02: All the cases cited, I [00:42:37] Speaker 02: We went through in painstaking detail all the cases that the plaintiffs cited below and that the district court cited and showed how each of them were different. [00:42:47] Speaker 02: And unless the court has any questions, I believe I'm quite over my time. [00:42:52] Speaker 01: All right. [00:42:53] Speaker 01: Thank you, counsel. [00:42:54] Speaker 01: Thank you to both counsel for your helpful arguments. [00:42:56] Speaker 01: The case just argued is submitted for decision by the court. [00:43:00] Speaker 01: The final case on my calendar for argument is Barlitsky versus Campos.