[00:00:00] Speaker 02:
The next case up for argument and actually our last case to be argued today is Zollner versus City of Arcata.

[00:00:53] Speaker 02:
One minute council, for everybody to set up.

[00:01:20] Speaker 01:
All right, when you're ready.

[00:01:22] Speaker 01:
Thank you, Your Honor.

[00:01:22] Speaker 01:
Good morning.

[00:01:24] Speaker 01:
My name is Elizabeth Zarre.

[00:01:25] Speaker 01:
I'm attorney for plaintiff and appellant today.

[00:01:28] Speaker 01:
Thank you for the opportunity, and may I please the court?

[00:01:32] Speaker 01:
I'd like to reserve five minutes for rebuttal, please.

[00:01:35] Speaker 01:
I'll start with addressing the issue of lack of probable cause first, and then I'll get into the concealed records summary judgment, and hopefully if I have time with the additional issues raised in the brief.

[00:01:48] Speaker 01:
As this court is aware, the jury returned the verdict in my client's favor, exceeding $756,000.

[00:01:55] Speaker 01:
And in addition to that award, the jury made a finding of fact that is not challenged here.

[00:02:03] Speaker 01:
And the finding that the jury made was that Detective Losey was actively involved in causing Kyle Zollner to be prosecuted or actively involved in continuing the prosecution.

[00:02:15] Speaker 01:
That is a significant fact in this case.

[00:02:18] Speaker 01:
There are several, several strong evidence.

[00:02:21] Speaker 04:
Can I just add, you mentioned the jury verdict.

[00:02:25] Speaker 04:
That was just against the detective, right?

[00:02:28] Speaker 04:
That was not against any of the other defendants in this case?

[00:02:30] Speaker 01:
Yes, Your Honor.

[00:02:31] Speaker 01:
At the summary judgment, the only defendant that survived was Detective Losey, and the other ones were dismissed, and I'll address that issue.

[00:02:40] Speaker 01:
There are several strong reasons that the evidence relating to lack of probable cause should not be re-litigated.

[00:02:51] Speaker 01:
First, the murder and the stabbing occurred on early Saturday morning hours on April 15th.

[00:03:01] Speaker 01:
On April 17th, and majority of the investigation relating to interviewing the witnesses were done during the weekend.

[00:03:08] Speaker 01:
On Monday, April 17, the detectives, Detective Losey and Detective Dockweiler, met with the DAs in the afternoon and with their research team.

[00:03:20] Speaker 01:
And the DA made a very, very express statement to them that she will not be filing criminal charges.

[00:03:26] Speaker 01:
There's no probable cause.

[00:03:28] Speaker 01:
And she also stated to them that they need to present evidence relating to an eyewitness.

[00:03:35] Speaker 01:
After the chat,

[00:03:39] Speaker 01:
The police chief Chapman presented the false evidence of eyewitness testimony.

[00:03:46] Speaker 01:
The DA finally decided to file the murder charges.

[00:03:49] Speaker 01:
Then after five days of hearing, live testimony, hearing from Detective Losey, hearing from Detective Duckwiler, Paris Wright, and so many others, and also forensic evidence such as fiber on the knife, fingerprints, and so on,

[00:04:09] Speaker 01:
the criminal court, the state criminal court, found no probable cause.

[00:04:15] Speaker 01:
And that finding is significant and it becomes even more significant because if you look at it, two years later the detectives continue to investigate the case and they've

[00:04:27] Speaker 01:
used the Department of Justice Criminal Division in helping them with developing DNA testing forensic, and they brought in other experts, assist them in developing the case, and they recommended again to the DA's office to bring criminal charges against Kyle Zollner.

[00:04:48] Speaker 01:
And the DA pretty much said, I'm not gonna bring it and I'm gonna name panel a criminal grand jury.

[00:04:55] Speaker 01:
One was assembled, 25 witnesses testified, several evidence were presented including DNA.

[00:05:02] Speaker 01:
And the criminal grand jury declined to return a bill of indictment, finding pretty much no probable cause.

[00:05:12] Speaker 01:
This court,

[00:05:14] Speaker 01:
in 1994 on Haupt v. Dillard specifically said, we conclude that the probable cause determination of preliminary hearing was sufficiently conclusive of the issue to preclude its re-litigation.

[00:05:29] Speaker 01:
And I think that's why we are

[00:05:32] Speaker 01:
emphasizing that the issue of probable cause should not be relitigated.

[00:05:37] Speaker 01:
Even if the court disagrees with that, and even if the court believes that it should be relitigated.

[00:05:44] Speaker 03:
You say it shouldn't be relitigated.

[00:05:46] Speaker 03:
Are you saying there's some bar to relitigating it, or just that the first finding was more persuasive and we should go with that one?

[00:05:53] Speaker 01:
Your Honor, I believe once the criminal court in the state made that determination and based on this backdrop that I just described, I don't believe re-litigation would be significant and important because there are no additional facts that needed to be added in there.

[00:06:09] Speaker 01:
In fact, if it's being re-litigated, there should be a strong presumption

[00:06:15] Speaker 01:
that there is no probable cause, and then the burden should shift on the other side to show whether there was sufficient evidence that would overcome

[00:06:26] Speaker 01:
what the findings from the state court was.

[00:06:28] Speaker 01:
And that was not done.

[00:06:30] Speaker 01:
And if you look at the evidence that was presented, they did not present a single evidence that would negate what would Judge Reinholdson found in the state court, or the criminal grand jury found, or the DA initially found that declined to file the criminal charges.

[00:06:49] Speaker 03:
Does qualified immunity come into this at all in terms of the second prong, the clearly established?

[00:06:55] Speaker 01:
Your Honor, it doesn't because qualified immunity would not come into play when there is a fabrication of evidence.

[00:07:04] Speaker 01:
by the police officers.

[00:07:06] Speaker 01:
And if you look at it, when the detectives met with the DA on the 17th, they had already interviewed the key witness called Jason Martinez.

[00:07:22] Speaker 01:
whose statement was falsified.

[00:07:24] Speaker 01:
And at that time, they knew who Martinez was and what Martinez has said.

[00:07:30] Speaker 01:
And at that meeting, they provided all the information they had and the DA declined.

[00:07:35] Speaker 01:
Only after the DA had requested an eyewitness, then they changed their story and fabricated the evidence relating.

[00:07:45] Speaker 04:
Wait, help me understand the, who fabricated what evidence?

[00:07:50] Speaker 01:
So Your Honor, Detective Losey, Detective Doc Weiler, and the Chief of Police Chapman, they changed the story of a witness called Jason Martinez.

[00:08:02] Speaker 04:
I didn't get that from reading this.

[00:08:04] Speaker 04:
You're going to have to explain that better, because I mean, I know that there was some later found that Martinez didn't actually identify Zollner, but that's different than fabricating the evidence.

[00:08:17] Speaker 01:
Well, Your Honor, the court, actually the jury found it to be fabricated as well.

[00:08:22] Speaker 01:
It was a malicious fabrication.

[00:08:24] Speaker 04:
No, it wasn't.

[00:08:25] Speaker 04:
It was malicious prosecution.

[00:08:27] Speaker 01:
It was, Your Honor.

[00:08:28] Speaker 01:
But let me explain.

[00:08:29] Speaker 01:
Let me see if I can clarify my point.

[00:08:32] Speaker 01:
Jason Martinez testified, I'm sorry, not testified.

[00:08:35] Speaker 01:
He made a statement to Detective Losey that he was at the party.

[00:08:42] Speaker 01:
and he was walking from a distance and he saw someone stop Mr. Lawson.

[00:08:49] Speaker 01:
And that was enough.

[00:08:51] Speaker 01:
That was all the description that was given.

[00:08:54] Speaker 01:
He never described

[00:08:56] Speaker 01:
The physical appearance of the person he saw.

[00:08:59] Speaker 00:
I understand.

[00:09:00] Speaker 01:
No description whatsoever.

[00:09:02] Speaker 01:
And he never identified Zollner.

[00:09:04] Speaker 01:
So we don't have a description, nor we have an identification.

[00:09:07] Speaker 04:
Where does the fabrication suggest that Detective Losey later came in and changed the testimony of Martinez?

[00:09:15] Speaker 04:
Is that what happened?

[00:09:16] Speaker 01:
Yes, Your Honor.

[00:09:16] Speaker 01:
He prepared the written report.

[00:09:19] Speaker 01:
And in his written report, he described precisely

[00:09:24] Speaker 01:
what he believed or what he had alleged that Jason Martinez had told Detective Losey.

[00:09:33] Speaker 01:
That information was also repeated in Detective Duck Weiler's

[00:09:39] Speaker 01:
charging summary that was submitted to the DA's office.

[00:09:42] Speaker 01:
And prior to that, which this evidence was willheld from us until the third day of trial, was submitted by Chief of Police, Chief Chapman, to the DA's office with regards to that there was an eyewitness relating to this, which none of them were true.

[00:10:00] Speaker 04:
No, that's not, there was an eyewitness.

[00:10:05] Speaker 04:
What the eyewitness said is what's being contested here.

[00:10:09] Speaker 04:
I mean, Martinez said he saw the stabbing.

[00:10:12] Speaker 04:
There's no dispute about that.

[00:10:13] Speaker 01:
Absolutely, Your Honor.

[00:10:14] Speaker 04:
But Martinez didn't identify Zollner.

[00:10:18] Speaker 04:
But I didn't read anything in Lossi's statement that said he did identify Zollner.

[00:10:25] Speaker 04:
He drew some inferences from that, which may or may not have been correct.

[00:10:30] Speaker 04:
But the falsification of evidence is different.

[00:10:37] Speaker 04:
I just had not viewed that in this case.

[00:10:39] Speaker 04:
So that's why I'm having a hard time.

[00:10:41] Speaker 04:
I think you're taking some liberties there.

[00:10:44] Speaker 01:
Well, Your Honor, I would ask the court to maybe look at the written report that was prepared by Martinez, I'm sorry, by Losey, because that

[00:10:57] Speaker 01:
report, that written report.

[00:10:59] Speaker 04:
Where is that in the record?

[00:11:00] Speaker 04:
I was just going to look for that.

[00:11:00] Speaker 04:
Where is that in the record?

[00:11:07] Speaker 01:
If you give me a moment.

[00:11:20] Speaker 04:
Yeah, OK, look for that.

[00:11:22] Speaker 04:
Let me ask you this question.

[00:11:24] Speaker 04:
If we were to affirm based on qualified immunity, which I think is what the district court focused on, is that correct?

[00:11:35] Speaker 04:
On the malicious prosecution claim?

[00:11:37] Speaker 01:
No, Your Honor.

[00:11:40] Speaker 01:
The district court actually found probable cause.

[00:11:45] Speaker 04:
OK, back up.

[00:11:48] Speaker 04:
There was a malicious prosecution claim.

[00:11:53] Speaker 04:
The district court said Zulner has not satisfied.

[00:11:58] Speaker 04:
So this went to the jury with the exception of the probable cause issue, right?

[00:12:03] Speaker 01:
Your Honor, I think I need to separate the two.

[00:12:05] Speaker 01:
There was a malicious prosecution against three officers.

[00:12:09] Speaker 01:
It was Duckwiler, Losey, and Chapman.

[00:12:14] Speaker 01:
Judge Chen at the MSJ

[00:12:18] Speaker 01:
basically dismissed those two, Doc Weiler and Chapman, with respect to malicious prosecution and other claims.

[00:12:27] Speaker 01:
So the sole remaining count was malicious prosecution against Losi.

[00:12:34] Speaker 04:
And that went to a jury.

[00:12:35] Speaker 01:
That went to the jury.

[00:12:37] Speaker 04:
But not on all issues.

[00:12:39] Speaker 01:
Not on all issues.

[00:12:40] Speaker 01:
The only issue that the District Court reserved for itself

[00:12:44] Speaker 01:
was the issue of existence or lack of existence of probable cause.

[00:12:48] Speaker 01:
The rest of it was submitted.

[00:12:49] Speaker 03:
Okay, I thought that's what I... So let's maybe focus on what the district court found in saying there was probable cause because the district court went through a list of facts and evidence and concluded, yes, this shows it was probable cause.

[00:13:03] Speaker 03:
Where do you take issue with that?

[00:13:05] Speaker 01:
Your Honor, there are significant issues with that.

[00:13:09] Speaker 01:
First of all, there was no evidence that Kyle Zollner had any kind of instrument or knife with him.

[00:13:18] Speaker 01:
No one saw him with a knife.

[00:13:21] Speaker 01:
Even Paris Wright, who said, we don't know whether he's telling the truth or not, but when he said that he separated the two, he only saw keys.

[00:13:30] Speaker 01:
He didn't see the knife.

[00:13:33] Speaker 01:
The witnesses that were there said he didn't have a knife.

[00:13:37] Speaker 01:
And if you look at the actual knife, the fiber on the knife does not match his clothing.

[00:13:45] Speaker 01:
So if that was the other way around, if the fiber on the knife wouldn't match his clothing, the prosecution would have pointed as showing a probable cause, and he would have pointed as to existence of his guilt.

[00:13:59] Speaker 01:
But that didn't exist.

[00:14:00] Speaker 01:
His fingerprint was not there.

[00:14:03] Speaker 03:
So these are arguments to me as to why if he had been tried, he might have prevailed.

[00:14:10] Speaker 03:
But the question here is probable cause, and it seems the standard would be lower.

[00:14:13] Speaker 01:
Absolutely.

[00:14:15] Speaker 01:
The standard for probable cause is lower, Your Honor.

[00:14:17] Speaker 01:
But I think it's the totality of circumstances.

[00:14:20] Speaker 01:
We cannot just focus on one.

[00:14:22] Speaker 01:
We need to look at each and every

[00:14:24] Speaker 01:
evidence that's there.

[00:14:26] Speaker 01:
The second thing that is critical is Officer Arminio testified at the preliminary hearing that the murder occurred or the stabbing occurred on the driveway where the pool of blood was and Officer Arminio and also Detective Losey searched the grassy area where the fight occurred between

[00:14:51] Speaker 01:
Kyle Zollner and Mr. Lawson.

[00:14:54] Speaker 01:
And in that area, there was no blood.

[00:14:58] Speaker 01:
And she had testified.

[00:15:00] Speaker 01:
And I'll draw the court's attention to page 2715.

[00:15:06] Speaker 01:
She was very specific, saying witnesses told her that's where the stabbing occurred.

[00:15:13] Speaker 01:
She's making references to that.

[00:15:15] Speaker 01:
And I think that's the critical part.

[00:15:18] Speaker 01:
And when you look at also the other significant fact, Your Honor, is that when Officer Nielsen, I'm sorry, I forgot the name for a second, Officer Nielsen detained Kyle Zollner

[00:15:39] Speaker 01:
Based on his own testimony, at the preliminary hearing, he testified that when he arrived, he was the first officer who arrived, when he arrived, he asked everybody, where is the victim?

[00:15:53] Speaker 01:
And people showed him Kyle Zollner, and he picked it up and put it in his car.

[00:15:59] Speaker 01:
Not knowing who he was, they changed the story.

[00:16:02] Speaker 01:
But if you look at the preliminary hearing, he testified he was looking for a victim.

[00:16:07] Speaker 01:
And I think that's a crucial point.

[00:16:09] Speaker 01:
with respect to that.

[00:16:11] Speaker 01:
The other part of it that is significant with respect to probable cause, which both the district, I'm sorry, the state court and also if you look at the evidence that was presented to the grand jury points to the fact that there was no probable cause were

[00:16:31] Speaker 01:
His, I mean, Kyle Zollner's clothing is significant.

[00:16:37] Speaker 01:
His shoes were clean.

[00:16:39] Speaker 01:
His hands were clean.

[00:16:42] Speaker 01:
They were talking about having blood on his clothes.

[00:16:47] Speaker 01:
They never presented a single evidence that the blood that was on those clothing belonged to

[00:16:56] Speaker 01:
Mr. Lawson.

[00:16:58] Speaker 01:
There's no evidence before it.

[00:17:00] Speaker 01:
And there's testimony that Mr. Zollner suffers from severe blood issue relating to his nose, bleeding from his nose.

[00:17:10] Speaker 01:
His father testified, he testifies as a child every time there was any kind of

[00:17:15] Speaker 01:
Minor impact he was bleeding very heavily and and and that could be easily be explained but just having blood on your clothes and not having anything on the knife and not having and then and and the other the other issue that I think just Ryan Olson Emphasized was really critical.

[00:17:35] Speaker 01:
He said Paris Wright testified that when he got to them Lawson had

[00:17:46] Speaker 01:
Kyle Zollner in a body lock and a headlock.

[00:17:50] Speaker 01:
So his arms couldn't be moved, his head couldn't be moved, his back was to Lawson's front basically where he was stabbed.

[00:18:01] Speaker 01:
There was no time, even if he had a knife, there was no time for him to discard the knife in such a distance.

[00:18:08] Speaker 01:
The distance between where the fight took place and where the knife was found was a significant distance.

[00:18:16] Speaker 01:
And they only found them with keys.

[00:18:23] Speaker 01:
conflicting at best, but it does not rise to the level of probable cause.

[00:18:28] Speaker 01:
I'm sorry for interrupting.

[00:18:30] Speaker 02:
Do you want to save a little bit of time for rebuttal?

[00:18:32] Speaker 01:
Yes.

[00:18:33] Speaker 01:
I apologize.

[00:18:49] Speaker 00:
Good morning, your honors.

[00:18:50] Speaker 00:
May it please the court, Laurie Sobranski, on behalf of defendants and appellants.

[00:18:54] Speaker 00:
Besides answering whatever questions the court might have this morning, I also would like to focus on probable cause, which is, as you recognize, the heart of this case.

[00:19:03] Speaker 04:
Can I?

[00:19:04] Speaker 04:
Because I think I might have gotten myself a little tied up in the opening argument.

[00:19:10] Speaker 04:
There's different probable causes we're dealing with here, right?

[00:19:13] Speaker 04:
Because Nelson has a different probable cause to arrest.

[00:19:18] Speaker 04:
Losey has a different probable cause to continue the prosecution.

[00:19:22] Speaker 00:
No, it's the same probable cause for everyone.

[00:19:25] Speaker 00:
All the officers are bound by the same standard of probable cause, which is the fair probability there must be a significant chance that the crime had occurred.

[00:19:35] Speaker 04:
But they each would have known different facts.

[00:19:38] Speaker 04:
So isn't probable cause analyzed differently per defendant?

[00:19:43] Speaker 00:
No, Your Honor, because it's the collective knowledge of all the officers.

[00:19:47] Speaker 00:
So in this kind of a situation where there's an investigation and an arrest,

[00:19:52] Speaker 00:
The knowledge of one of those officers that's participating in this investigation is imputed to the others under the collective knowledge doctrine.

[00:19:59] Speaker 00:
It's actually cited in our brief.

[00:20:02] Speaker 00:
So for probable cause purposes, the same information is relevant to all of these officers.

[00:20:08] Speaker 00:
And the same probable cause inquiry and decision will apply to both the malicious prosecution claim

[00:20:18] Speaker 00:
and also to the unlawful arrest claim.

[00:20:20] Speaker 00:
Right.

[00:20:20] Speaker 03:
I mean, we can't.

[00:20:21] Speaker 03:
I mean, Nielsen was the first on the scene.

[00:20:23] Speaker 03:
His knowledge gets imputed later.

[00:20:25] Speaker 03:
But we can't impute knowledge to him of things that were learned later.

[00:20:29] Speaker 03:
I don't think we could do that.

[00:20:31] Speaker 00:
Well, I think, well, Nielsen's involvement actually ends after that first day on the scene.

[00:20:38] Speaker 00:
So after that, it's Detective Doc Weiler and the other officers, Losey in particular, that are helping with the investigation.

[00:20:47] Speaker 00:
What all of those officers are learning in those next days where the investigation is unfolding, all of that information is imputed to each of them.

[00:20:56] Speaker 00:
They're communicating with each of them, too.

[00:20:59] Speaker 00:
It's not as if they're operating independently.

[00:21:01] Speaker 00:
They're talking to each other.

[00:21:02] Speaker 00:
They're sharing information about interviews and so forth.

[00:21:05] Speaker 00:
In those few days after the arrest on the 15th when the stabbing happened, there were at least 15 witnesses that were interviewed.

[00:21:13] Speaker 00:
and the wheels were turning, the investigative wheels were turning as quickly as they could possibly turn them.

[00:21:18] Speaker 03:
So your friend on the other side said, you know, we shouldn't re-litigate this issue, kind of referencing what happened in the state court.

[00:21:24] Speaker 03:
How do you respond to that?

[00:21:25] Speaker 00:
Yeah.

[00:21:26] Speaker 00:
This is, I think, a fundamental issue here.

[00:21:29] Speaker 00:
The preliminary hearing in the criminal matter in state court was excluded from evidence in the trial.

[00:21:38] Speaker 00:
Probable cause was tried in this civil case that we are here for now.

[00:21:43] Speaker 00:
was tried in the district court.

[00:21:47] Speaker 00:
The evidence and the preliminary hearing proceedings were all excluded.

[00:21:52] Speaker 00:
The court determined there was no, this issue was actually raised in plaintiffs in limine motion.

[00:21:59] Speaker 00:
And the district court decided there was no privity between Officer Losey and

[00:22:06] Speaker 00:
the parties to the criminal action and therefore plaintiff could not preclude officer low see who is not a party to the original proceeding from relitigating probable cause he helped me understand this because as i'm reading

[00:22:24] Speaker 04:
from the district court's order on probable cause.

[00:22:28] Speaker 04:
It says, Mr. Zollner asked the court to take judicial notice of the state court judge's lack of probable cause finding following the preliminary hearing.

[00:22:36] Speaker 04:
The court does so.

[00:22:38] Speaker 04:
That doesn't seem consistent.

[00:22:39] Speaker 00:
It wasn't, yes, it wasn't the lack.

[00:22:41] Speaker 00:
What the court is saying is she was going to take judicial notice that it happened, but the evidence of the preliminary hearing

[00:22:51] Speaker 00:
And the decision of the preliminary hearing was not, she held was not binding.

[00:22:57] Speaker 00:
And so none of the evidence from the preliminary hearing was presented in the trial in this case on probable cause.

[00:23:03] Speaker 04:
Because the district court said that the question here is different whether a reasonable officer in Mr. Losey's circumstances would have believed there was a fair probability of the zoner stabbed lost.

[00:23:13] Speaker 00:
Well, the court was really saying it was a legal basis for her decision, which was,

[00:23:19] Speaker 00:
You cannot invoke issue preclusion against Officer Losey, because he was not a party to the original criminal proceeding.

[00:23:28] Speaker 00:
So there was no privity.

[00:23:30] Speaker 00:
And what is really important about this, Your Honor, is that decision, this was on a motion in limine that plaintiff brought, the decision to exclude the preliminary hearing evidence and to bind

[00:23:44] Speaker 00:
Lossi with the criminal court's decision was not challenged on this appeal.

[00:23:50] Speaker 00:
The merits of that are not challenged.

[00:23:53] Speaker 00:
So when we talk about probable cause and the analysis, the district court, it's only the federal court's analysis.

[00:24:02] Speaker 00:
an evidence that was presented at the federal court's trial that we can consider.

[00:24:07] Speaker 04:
There's no challenge to the original... I just want to make sure I'm clear on what we're deciding.

[00:24:10] Speaker 00:
Yeah.

[00:24:11] Speaker 00:
Because now... I hope that explains... Well, hold on.

[00:24:14] Speaker 04:
Let me ask some questions.

[00:24:15] Speaker 04:
So right now, there's a jury verdict

[00:24:20] Speaker 04:
but for probable cause then the district court federal district court said there's no probable cause for low or excuse me there is probable cause as to low see that's why the jury verdict was not given any efficacy so we're being asked whether the district court aired in making a a probable cause finding as to low see correct that's we have to decide that question that is the fundamental question that underlies

[00:24:49] Speaker 00:
the malicious prosecution claim against Losi and everybody else, and also the unlawful arrest claim.

[00:24:55] Speaker 04:
So we cannot just decide and say, hey, there's qualified immunity for those counts.

[00:25:00] Speaker 04:
We actually have to reach the malicious, or excuse me, we have to reach the probable cause determination.

[00:25:07] Speaker 00:
I think the court could decide, as always, you could decide qualified immunity without deciding a constitutional violation.

[00:25:16] Speaker 04:
And that would still uphold the district courts.

[00:25:22] Speaker 04:
It would just uphold it on a different basis.

[00:25:24] Speaker 00:
It would uphold it, I think, on a different basis.

[00:25:27] Speaker 00:
I mean, if this court were to say, we're not going to review the probable cause hearing on the merits of it, but because it doesn't matter, because there would be qualified immunity for a lack of clearly established precedent, which would have to be the basis.

[00:25:44] Speaker 02:
We can go the other way, too, given that the district court reached the probable cause determination.

[00:25:49] Speaker 02:
we can say that the probable cause determination was properly supported and not reached the qualified immunity question.

[00:25:57] Speaker 00:
Absolutely.

[00:25:58] Speaker 00:
And actually, that's the way I've kind of viewed this case.

[00:26:00] Speaker 00:
I mean, I believe qualified immunity would apply regardless because of the facts of what happened here.

[00:26:08] Speaker 00:
I don't think there's any clearly established law that would tell an officer there was not probable cause to arrest this gentleman under these facts.

[00:26:16] Speaker 00:
But I also

[00:26:18] Speaker 00:
I really feel the probable cause evidence in this case is so strong.

[00:26:24] Speaker 00:
And the district court wrote a very nice decision on this matter that really kind of laid it out.

[00:26:30] Speaker 04:
And that would cover the unlawful arrest and the malicious prosecution.

[00:26:32] Speaker 00:
It covers the malicious prosecution and the unlawful arrest.

[00:26:36] Speaker 04:
But then if we get into deliberate indifference, the district court

[00:26:40] Speaker 04:
relied on qualified immunity for deliberate indifference?

[00:26:43] Speaker 00:
Yes, it did.

[00:26:43] Speaker 00:
But that's a separate issue unrelated to the probable cause.

[00:26:47] Speaker 00:
Actually, the district court on the malicious prosecution claim found there was no malice.

[00:26:54] Speaker 00:
On the summary judgment part, it said there was no malice for the folks that had been sued on that claim, except for Losey.

[00:27:00] Speaker 00:
And that went to trial.

[00:27:02] Speaker 00:
But qualified immunity, the district court found on summary judgment in respect of the unlawful arrest claim and the deliberate indifference claim.

[00:27:12] Speaker 04:
All right.

[00:27:13] Speaker 04:
So I'm not sure I understood that before now.

[00:27:16] Speaker 04:
Deliberate indifference also went to the jury for Losi?

[00:27:19] Speaker 00:
No, no, no, no.

[00:27:21] Speaker 00:
The only matters that went to the jury was the malicious prosecution claim against Losi.

[00:27:28] Speaker 04:
That's what I thought.

[00:27:28] Speaker 00:
OK.

[00:27:28] Speaker 00:
That claim involved, as an element of it, probable cause.

[00:27:33] Speaker 00:
So probable cause was determined there.

[00:27:36] Speaker 00:
All of these other peripheral claims

[00:27:39] Speaker 00:
that we're talking about the deliberate indifference, the defamation.

[00:27:45] Speaker 00:
That's Judge Chen's order.

[00:27:46] Speaker 00:
All of those came up on the summary judgment motion before Judge Chen.

[00:27:51] Speaker 00:
But probable cause has to be decided based upon the evidence that was presented to the district court in the malicious prosecution claim against Losi.

[00:28:00] Speaker 00:
It's a complicated procedure.

[00:28:02] Speaker 03:
But you say that because that's the most full record of probable cause in this case?

[00:28:06] Speaker 00:
That is the record.

[00:28:08] Speaker 00:
That's the most full record of probable cause in this case, for sure.

[00:28:11] Speaker 00:
And that was where, as always, there's a trial on the same issue that has been decided on summary judgment.

[00:28:18] Speaker 00:
The trial record supersedes the summary judgment record.

[00:28:21] Speaker 00:
There's no reason to make a decision on a summary judgment record when the matter's been tried.

[00:28:25] Speaker 00:
Witnesses have actually testified.

[00:28:26] Speaker 00:
They have been cross-examined.

[00:28:28] Speaker 00:
The court can see them and judge credibility and so forth.

[00:28:33] Speaker 00:
So that's the full record, and that's what takes precedence.

[00:28:37] Speaker 00:
If the court would mind, I'd like to talk about some of the probable cause facts, unless the court would like me to discuss one of these other issues.

[00:28:45] Speaker 03:
No, I think you should, because, I mean, the other side has walked through their version of the facts, so I'd like to hear yours.

[00:28:50] Speaker 00:
Yeah, the probable cause, well, obviously, the standard is familiar.

[00:28:53] Speaker 00:
I won't belabor it.

[00:28:54] Speaker 00:
There is one point I do need to raise, though.

[00:28:57] Speaker 00:
In the reply brief, plaintiff mentioned that the standard of review for the probable cause determination is clear error.

[00:29:04] Speaker 00:
I agree with that.

[00:29:05] Speaker 00:
I agree that the standard of review here is very, very deferential to the trial court.

[00:29:10] Speaker 04:
For the factual findings, right?

[00:29:11] Speaker 00:
For the whole thing.

[00:29:13] Speaker 00:
I think for the whole thing.

[00:29:14] Speaker 04:
Because the whole thing is based on factual findings.

[00:29:17] Speaker 00:
Because the whole thing, and because in this particular case, the plaintiff agreed

[00:29:24] Speaker 00:
at trial that the facts relating to the probable cause were undisputed.

[00:29:28] Speaker 00:
So there were no disputed facts, and the jury made no factual findings related to the probable cause.

[00:29:35] Speaker 00:
It was all before the record.

[00:29:36] Speaker 00:
The court did it as a matter of law based upon the evidence that was presented.

[00:29:41] Speaker 00:
But when we think about probable cause, and this is important because this came up a lot in the argument that we heard,

[00:29:51] Speaker 00:
The court excluded at trial a whole bunch of evidence.

[00:29:54] Speaker 00:
And plaintiff constantly refers to this excluded evidence as a basis for his arguments that probable cause was defeated.

[00:30:04] Speaker 00:
So we've already talked about the preliminary proceedings.

[00:30:06] Speaker 00:
Those were excluded.

[00:30:08] Speaker 00:
There is a National Police Federation report that is constantly referenced in the briefing and things.

[00:30:13] Speaker 00:
That was excluded.

[00:30:15] Speaker 00:
The criminal grand jury proceedings that we heard about this morning, excluded.

[00:30:19] Speaker 00:
The civil grand jury report.

[00:30:21] Speaker 00:
that covers the briefing, excluded.

[00:30:25] Speaker 00:
Expert reports and DNA evidence also excluded.

[00:30:28] Speaker 00:
None of those evidentiary rulings are challenged on appeal.

[00:30:32] Speaker 00:
So all of those evidentiary rulings are in place.

[00:30:35] Speaker 00:
And none of that can be considered when we talk about probable cause.

[00:30:39] Speaker 00:
The evidence on probable cause, which your honors might remember from the brief, is quite strong.

[00:30:51] Speaker 00:
is this.

[00:30:51] Speaker 00:
And remember, this is all undisputed.

[00:30:53] Speaker 00:
When Officer Nielsen arrives to the scene within a minute of the dispatch call, witnesses are pointing him to where Mr. Zollner is standing.

[00:31:02] Speaker 00:
He goes up to that area.

[00:31:04] Speaker 00:
He sees that Mr. Zollner is covered in blood.

[00:31:08] Speaker 00:
He learns from Mr. Zollner that Mr. Zollner had been in a fight with this gentleman, Mr. Lawson, when he first got

[00:31:15] Speaker 00:
on the scene because he was questioning whether somebody stole the girlfriend's phone.

[00:31:20] Speaker 00:
They get into a fight.

[00:31:21] Speaker 00:
A witness, Paris Wright, who was very significant, sees Mr. Lawson after the fight, sees Mr. Lawson walking down the hill, talks to him.

[00:31:33] Speaker 00:
He is not stabbed.

[00:31:34] Speaker 00:
Everything is fine.

[00:31:35] Speaker 00:
A few minutes later, Paris Wright hears a scream, looks up the hill.

[00:31:41] Speaker 00:
sees Mr. Zollner in a fight with Mr. Lawson, this was fight number two between Zollner and Lawson, in this grassy area that is at the cul-de-sac just by where a red Mustang is parked.

[00:31:54] Speaker 00:
On page 40 of my answering brief, there's a photograph of the cul-de-sac and a little graph that is kind of helpful to just visualize what happened.

[00:32:05] Speaker 00:
But Mr. Wright sees Mr. Lawson, he's fine, turns up, he sees the fight, he runs up, he separates the two that are fighting on the ground.

[00:32:16] Speaker 00:
Mr. Lawson is lying with his back on the ground and Mr. Zollner is on top of him with his back on Mr. Lawson's stomach on front.

[00:32:28] Speaker 00:
They're like that.

[00:32:29] Speaker 00:
When Mr. Wright pulls them apart, he sees

[00:32:35] Speaker 00:
that now Mr. Lawson is stabbed.

[00:32:38] Speaker 00:
He had not been stabbed just a few minutes earlier when he saw him on the street.

[00:32:43] Speaker 00:
Now he notices that there are two stab wounds.

[00:32:51] Speaker 00:
Seven other witnesses also stated that there was a physical fight between Mr. Zoller and Mr. Lawson in that area.

[00:33:02] Speaker 00:
And the officers found a kitchen knife

[00:33:04] Speaker 00:
It was mentioned underneath the red Mustang that was parked right by where this fight occurred.

[00:33:10] Speaker 00:
The knife was definitely big enough to cause these stab wounds.

[00:33:13] Speaker 00:
It was a six-inch blade.

[00:33:14] Speaker 00:
The officers knew it was unusual for a kitchen knife to be used in a stabbing outside of a kitchen.

[00:33:20] Speaker 00:
And they also found out that Mr. Zollner was a chef and had a chef's bag in his car that contained knives.

[00:33:29] Speaker 00:
The clothing on the plaintiff was

[00:33:34] Speaker 00:
covered in blood.

[00:33:35] Speaker 00:
There were large blood stains on the front and the back of the sweatpants, on the front and the back of his hoodie.

[00:33:44] Speaker 00:
And there was enough blood that it had soaked through and spotted the white t-shirt that was underneath the hoodie.

[00:33:51] Speaker 00:
The amount of blood that they found, the location of the blood, and the pattern of it, the officers knew did not match a nosebleed.

[00:34:01] Speaker 00:
And it did not match the kinds of injuries that

[00:34:04] Speaker 00:
that the plaintiff had from the two physical altercations that he'd had earlier that night.

[00:34:10] Speaker 00:
No one else that night had been in a fight with Mr. Lawson, and no one else that the officers could discover had any kind of a motive to kill him.

[00:34:23] Speaker 03:
What about this distinction between the grassy area and the cul-de-sac where the blood was found?

[00:34:28] Speaker 00:
Yes.

[00:34:28] Speaker 00:
The chart on page 40 of my brief, I think, would really be helpful if you get a chance to look at it to see what this is.

[00:34:36] Speaker 00:
But there's a cul-de-sac.

[00:34:38] Speaker 00:
And if you look at the photo to the left of it, there's a grassy area where the red car is parked.

[00:34:43] Speaker 00:
That's where the fight occurred.

[00:34:46] Speaker 00:
The photographs and the evidence showed that from that location,

[00:34:51] Speaker 00:
there were blood drops across the cul-de-sac that went to another grassy area on the other side of the street, other side of the cul-de-sac.

[00:35:01] Speaker 00:
That is where Mr. Lawson collapsed.

[00:35:03] Speaker 00:
And that's where the emergency responders found him.

[00:35:07] Speaker 00:
So what happened, and Mr. Wright said he actually saw that Mr. Lawson left the area where the fight and made his crawled across the street to get out of that way until he got to the grass on the other side

[00:35:21] Speaker 00:
where he collapsed.

[00:35:22] Speaker 00:
There was a lot of blood in the area where he collapsed.

[00:35:24] Speaker 00:
There was a lot of blood leading across the street, but it's a trail.

[00:35:28] Speaker 00:
So the question is whether it's reasonable for the officers to infer that he moved.

[00:35:36] Speaker 00:
He was stabbed over here where the fight happened.

[00:35:38] Speaker 00:
He moved across the street where he ultimately ended up.

[00:35:41] Speaker 00:
But that blood was his trail of him moving from place to place.

[00:35:46] Speaker 00:
And that's what happened.

[00:35:48] Speaker 00:
It is true.

[00:35:49] Speaker 00:
that the officers, when they originally got to the scene, saw the blood on the street and thought this blood on the street must mean this was maybe the place of the stabbing.

[00:36:03] Speaker 00:
But as the investigation unfolded and as they talked to the witnesses on the scene who explained everything, including Mr. Wright, they realized that that was an incorrect assumption to make and that actually he had moved from one place to the other.

[00:36:19] Speaker 00:
There are a lot of other pieces of evidence that supported probable cause.

[00:36:27] Speaker 04:
Can I ask just briefly about this?

[00:36:31] Speaker 04:
fabricated evidence claim because I hadn't really seen that in this case maybe I was not paying close enough attention but I don't was there a jury finding on fabricated evidence I thought it was just the jury finding was simply on malicious prosecution it was there was no jury finding on fabricated evidence they were never asked

[00:36:52] Speaker 04:
To make that but that was an argument that was made was it?

[00:36:57] Speaker 00:
It's an it was an argument that plaintiff inferred that because they found this There was a mistake in the in the police report.

[00:37:05] Speaker 00:
Absolutely and your honor was exactly right The officer inferred that it that mr. Martinez was referring to mr. Zollner by name and he wasn't

[00:37:16] Speaker 04:
But that was never changed after the fact or anything like that?

[00:37:20] Speaker 00:
No, no, no, no, no.

[00:37:22] Speaker 00:
When the malicious prosecution case was tried, they obviously found that that was an error, and they held that it was malicious.

[00:37:30] Speaker 00:
The error was maliciously made.

[00:37:32] Speaker 00:
They did not find it was fabricated.

[00:37:34] Speaker 00:
In fact, if you look at the note that the jury sent to

[00:37:44] Speaker 00:
the court at the end of the deliberations on their verdict.

[00:37:47] Speaker 00:
It was talking about probable cause.

[00:37:49] Speaker 00:
And of course, now I can't put my hand on it.

[00:37:52] Speaker 00:
But the jury said, we would like the officer, Losey, to just apologize for his reporting error and to acknowledge

[00:38:09] Speaker 00:
now the importance of accurate reporting.

[00:38:12] Speaker 00:
That's what the jury found.

[00:38:13] Speaker 00:
They didn't say for making up evidence out of nowhere.

[00:38:16] Speaker 04:
It sounds like they didn't even find that.

[00:38:18] Speaker 04:
That was a quote.

[00:38:19] Speaker 00:
It was just a note.

[00:38:20] Speaker 00:
It was just a note that they sent saying, this is what we think.

[00:38:23] Speaker 00:
We think this is a learning experience and this has happened.

[00:38:26] Speaker 00:
So there was no fabrication.

[00:38:28] Speaker 00:
I will say this also on the argument about qualified immunity and fabrication.

[00:38:34] Speaker 00:
Um, it is true that at times,

[00:38:37] Speaker 00:
If there was fabrication of evidence, qualified immunity would not apply.

[00:38:41] Speaker 00:
But that is not true where, as in this case, the other evidence of probable cause exists that would support the action in the first place.

[00:38:53] Speaker 00:
So if the only thing we had was a fabricated statement, this guy did it, and that turned out to be false, then no qualified immunity.

[00:39:02] Speaker 00:
But whereas here, we have all of this other evidence supporting qualified immunity.

[00:39:07] Speaker 00:
then qualified immunity would still apply if the court chose to go down that road instead of just making a decision on the constitutionality of the arrest based on the probable cause itself.

[00:39:20] Speaker 02:
All right.

[00:39:20] Speaker 02:
Thank you very much, counsel.

[00:39:21] Speaker 02:
Thank you.

[00:39:31] Speaker 01:
The jury's note was not what my friend is describing.

[00:39:34] Speaker 01:
It's part of the records.

[00:39:35] Speaker 01:
But I'm going to read from page 3868, which is a written report that was prepared by Officer Losey.

[00:39:43] Speaker 01:
He wrote, Martina stated that when he looked, he saw Zollner stab Lawson.

[00:39:50] Speaker 01:
He stated that Zollner held the knife in his right hand, but he was unable to describe the knife.

[00:39:55] Speaker 01:
Martinez stated that he believed Zollner struck Lawson with the knife once in the lower chest and once slightly higher.

[00:40:04] Speaker 01:
Martinez saw Lawson run across Eastbound, the driveway

[00:40:08] Speaker 01:
and jumped into the bushes where he fell, face down.

[00:40:12] Speaker 01:
So, a couple things.

[00:40:14] Speaker 04:
And your point is that's fabrication because he didn't identify Zoller, so when he wrote that, that was fabricated.

[00:40:22] Speaker 01:
Absolutely.

[00:40:23] Speaker 04:
Okay, I understand what you're saying now.

[00:40:24] Speaker 01:
And also, Martinez is describing

[00:40:28] Speaker 01:
the stabbing occur in the middle of the driveway.

[00:40:31] Speaker 01:
He's not talking about the grassy area.

[00:40:34] Speaker 01:
And if you look at the drawings that was prepared by Officer Losey, there is no dripping from the right grassy area to the middle of the cul-de-sac.

[00:40:44] Speaker 01:
and the only dripping you see would be from where the pool of blood is to the other side where Mr. Lawson was found.

[00:40:54] Speaker 01:
This information, Your Honor, was also repeated on page 3867 by Detective Duckwiler as well.

[00:41:04] Speaker 01:
Detective Duckwiler wrote the details, and he also talks about how Martinez observed

[00:41:11] Speaker 01:
what I just described to you.

[00:41:12] Speaker 01:
So these are all part of the records, and that's part of what we were saying that was fabricated.

[00:41:18] Speaker 01:
And Your Honor, I wish I had more time to, I think I still have a few more minutes.

[00:41:25] Speaker 01:
With respect to jury's findings, the jury also made a finding on page 30.

[00:41:33] Speaker 01:
Did Eric Losey act primarily for a purpose other than of bringing Kyle Zollner to justice?

[00:41:41] Speaker 01:
And the jury answered yes.

[00:41:43] Speaker 01:
I mean, these are significant fact finding by the jury that should be looked at and considered.

[00:41:50] Speaker 01:
And with respect to the probable cause, I just submit on that issue.

[00:41:56] Speaker 01:
Now, I just want to quickly focus my issue on Manel claims.

[00:42:01] Speaker 02:
You're actually down to 34 seconds.

[00:42:03] Speaker 01:
I'll go quick.

[00:42:06] Speaker 01:
There was a great deal of records that was hidden from us.

[00:42:09] Speaker 01:
And those records would have rectified the issues that Judge Chen raised in the MSJ when he partially granted the MSJ.

[00:42:17] Speaker 01:
And it should have been included, because it also points to the conspiracy part, which should have included Duckwiler and also Chapman within the malicious prosecution, and also with respect to the Mon-El claim.

[00:42:31] Speaker 01:
and the defamation.

[00:42:33] Speaker 01:
Just one quick point.

[00:42:35] Speaker 01:
Chapman made the statement to

[00:42:38] Speaker 01:
the press the day before he submitted the false note to the DA's office that was never given to us until the third day of trial.

[00:42:49] Speaker 01:
And with that, I submit.

[00:42:50] Speaker 02:
All right.

[00:42:50] Speaker 02:
Thank you very much, counsel, for your helpful arguments this morning.

[00:42:53] Speaker 02:
The matter is submitted for decision by this court.

[00:42:56] Speaker 02:
That concludes the argument calendar for today.

[00:42:59] Speaker 02:
So we'll be in recess until tomorrow morning.