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Well, Judge Fletcher, Lee, and I welcome you to the Ninth Circuit.

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Judge Lee is appearing by video.

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Can you hear us okay, Judge Lee?

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I can hear you.

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Great.

[00:00:16] Speaker 01:
Thank you.

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All right.

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You may approach the lecture and proceed when you're ready.

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as well.

[00:00:37] Speaker 04:
Yes ma'am.

[00:00:38] Speaker 04:
Your Honor, in this case no factual basis was entered in the Superior Court for the misdemeanor 148 guilty plea that Mr. Martel entered.

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There was no trial testimony, there was no preliminary examination testimony, no police reports were submitted to the Superior Court.

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Most importantly, the body-worn camera video was not submitted

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inherited the language of the statute.

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That is the factual basis on which this Heck versus Humphrey appeal must proceed.

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In Junt, as a matter of state law, the Supreme Court held that penal code section 148 does not require a distinct temporal separation between reasonable and unreasonable force.

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And that is what I believe the video in this case shows here.

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Mr. Martell was ordered to get on his knees and he delayed for a period of approximately five seconds, according to the video.

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If that was a lawful order, which we did not contend otherwise, that could be a violation of Section 148.

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When he only got down on one knee, that was not in compliance with the command that he was given, which was to get down

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That's what the deputies wanted, and they wanted his hands up behind his neck so they could handcuff him.

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That is standard procedure for the San Diego County Sheriff's Department.

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I believe all law enforcement officers practice that type of takedown for safety purposes, and we're not contesting otherwise.

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He got down on his knees.

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They told him to get down on the ground, and he declined to do that for a period of time.

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That could have been a 148 violation.

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that the court can look at when deciding whether the heck bar applies in this particular case.

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Temporal hair splitting is what was required because of the multiple five by our count different types of behaviors by Mr. Martel.

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Let me ask you this, counsel, because you've identified a number of acts that could have served as a basis for the 148 conviction.

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I'm assuming that the acts that you didn't name

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hiding was what caused the dislocated shoulder but the 148 violation could have occurred on at least four occasions prior to that time and at least one time.

[00:04:32] Speaker 01:
Right so the way that you're envisioning this case proceeding is you survived the motion is this stage the parties proceed to discovery and then that bar gets litigated again at the motion for summary judgment stage and at that

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let a theory, a factual theory, to survive on summary judgment and base it upon evidence.

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I think the reality is the evidence in this case is the video itself.

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I don't know that.

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No, I understand that.

[00:05:07] Speaker 01:
But, you know, in part, for nothing other than notice purposes, right, you've got an entire course of events here.

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And I think Lemos makes clear that just because it's a continuous course of conduct, it doesn't mean that you splice

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At some point, the defense has to get, they get to know what that theory is.

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And usually the HACPAR is litigated at the motion to dismiss stage.

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So in light of the guidance by Lemos, when do you think it is that you have to elect a theory and how is that litigated?

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Well, I think I can elect a theory now based upon what I know without

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would be proceeding on is that when he was taken down to the ground and his shoulders impacted the ground, that's when the force would have caused his shoulder to be dislocated.

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that we can talk about leave to men and all of that and whether whether you want an opportunity to do that or the alternative view is what you started to say which is at some point at the summary judgment stage you pick I just don't I'm asking for your view of the law and how this plays out I think at the summary judgment stage when qualified immunity comes into play and I have to identify on

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Because at that point, I'd be required under Prong 2 to identify the case law that puts a reasonable office on notice that that specific conduct is prohibited under clearly established law.

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If I may ask a question.

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So under your theory, the government could have charged your client for multiple

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one for not getting down to the ground.

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Is that correct under your theory?

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Yes, Your Honor.

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I see I'm out of time if I may answer that question.

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Yes, Your Honor.

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They could, although Penal Code Section 654 would then come into play at the punishment stage if you were convicted of multiple counts and would stay any punishment on additional charges.

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In practice, they don't charge them that way.

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I've never seen personally

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where multiple individual officers are alleged to have been the victims of the 148 or Penal Code 69, the felony version.

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In those circumstances, I would see multiple counts, but not under the circumstances like this where it's planned as a misdemeanor.

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If I could ask a follow-up question, a related question.

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You mentioned the Yount case, and the Yount case talks about the

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exists within one continuous course of conduct.

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And you know, someone was being resisting arrest and the officer accidentally shoots the person.

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What are the isolated factual context here?

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Because here it seems like it's all kind of compressed and related to one

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one, really one factual context.

[00:09:02] Speaker 04:
Yes, sir, Your Honor.

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That is correct.

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This was a continuous transaction.

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There was no pause in behavior like Yount, where there was a chase and then a foot chase and then a dog was deployed.

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But Yount itself addressed that, and I cite the quotation on page 12 of my brief, I think

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would be the first four prongs that I identified here to which the arresting officers might respond with excessive force to subdue him.

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So I think he out takes into account a continuous transaction of the nature that I'm presenting here.

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case in that with YELT, it's possible to make a delineation between where the officer's legal conduct stopped and the lawful conduct began.

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YELT involved the same events in the series.

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However, what made it possible to make that delineation is the escalation in force that suddenly we went from somebody that was resisting to

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So that, I think, is different.

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The acts were temporally and spatially separated because we went to an entirely different type of force, notwithstanding the fact that there was a continuous chain of events going on.

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So that's the difference.

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What Appellant is asking the Court to do in this case is to take each of

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things and to treat them as a separate factual context to me.

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That's exactly what he's asking.

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Let me ask you this.

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So we're now in the situation where he's been taken to the ground and we're being told there were several things that he did after he was taken to the ground.

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Do you disagree?

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The things that he did that he just made, for example, siphoning, failure to roll over, so on, were those 148 violations?

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Yes, Your Honor.

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Okay.

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But you cannot slice up a 148 claim as this court held in Sanders.

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And we know from the court's decision in Lamos

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and the suspect, the blocking the deputy's path, the pulling away when the deputy went to grab the suspect.

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There were four different acts, allegedly, under 148.

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But the court in Lemos, this court only found two factual contexts.

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So that's the same here.

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We only have one factual context, and that is the context.

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I think you're over-reading my opinion at Lemos.

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over reading the consequence of my opinion in Lemos.

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I dealt with the facts that were there.

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I did not deal with a fairly short time span where it was more or less continuous activity.

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I don't think Lemos decides this case.

[00:13:29] Speaker 02:
Well, I do think, Your Honor, that like Lemos, there's fewer factual context than acts.

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And in this case, that one factual context, the only factual context that

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The facts in the pleading ledge is the factual context in which the deputies are attempting to apprehend and restrain the suspect.

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We only have one factual context there.

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There's nothing that causes any separation temporally or spatially to create a separate factual context than that, at least not within the facts that are alleged in the

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That's the temporal hair splitting.

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And I think the court is cautioning against that in the Fletcher case as well.

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We don't want to engage in temporal hair splitting.

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But that was the district court's reasoning in Lemos, was that there has to be some spatial temporal separation.

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And the majority rejected that.

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But the majority did hold in Lemos that there were not every act was a different factual context.

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basically selected excessive force as the final act, meaning the other three could have

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The facts pled in the complaint are only facts that occurred at the same time that the resistance of arrest was occurring, the 148.

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he didn't plead guilty to, he's not meeting the federal pleading standard requirements.

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There is an escape hatch to hack that... But isn't hacking a defense, isn't that your job or not?

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And the answer is, why is that man required to hack?

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Your Honor, I think that...

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transactional worked.

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Well, your appellate admits that the plea was crafted in such a way to attempt to circumvent the heck doctrine.

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And that's what I think the courts should put a stop to.

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And Welch shut the heck escape hatch by requiring the plaintiff and the plea to state the facts that he's accused of that he's not pleading guilty to and not leave this broad, vague plea to make it possible

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past language, past judges, and prosecutors to attempt to pursue these success stories.

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Who's speaking what?

[00:17:40] Speaker 05:
Who proposed the plea?

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I mean, the prosecutor made the charge.

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He responds to the charge.

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If the prosecutor charges a specific act, well, the prosecutor's perfectly free to do that.

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Isn't the defendant supposed to rewrite the charge for the prosecutor?

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I don't get it.

[00:17:55] Speaker 02:
No, but the defense is intentionally leaving vague the factual basis for the plea.

[00:18:00] Speaker ?:
The intentional leaving vague.

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Why c- how come the prosecutor doesn't do that?

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on the prosecutor.

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But let me say that even if we disagree on that... Well, listen, the prosecutor is bringing the charge, for goodness sake.

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Yes, Judge, but what I'd like to say, respectfully, Your Honor, is that it doesn't matter in this case, because all the acts occurred in one factual context.

[00:19:01] Speaker 02:
Well, there's still a question.

[00:19:03] Speaker 02:
Sure.

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And so, because they have occurred in one factual context, it was the acts of resisting arrest were going on simultaneously with the alleged acts of

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of excessive force.

[00:19:15] Speaker 01:
The problem, counsel, is that to some extent, the way I see your argument, it's really a jury question, right?

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So I don't see what's wrong with the plaintiff in the continuous course of conduct like this saying, okay, I resisted arrest.

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The officers used a certain level of force to take me to the ground and handcuff me.

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Everything after that is

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The problem, Your Honor, is that there's no acts alleged in the complaint

[00:20:02] Speaker 01:
Well, he's alleging the whole conduct.

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Leading sufficiency is a separate question, which we've talked about.

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And frankly, to Judge Fletcher's point, if the people, the government, wanted to put a stop to that, they could seek an admission of a factual basis that would preclude the 1983 suit, and they haven't done that in this case.

[00:20:24] Speaker 02:
Yes, Your Honor, but there's no factual

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by HEC, it's all within the same factual context.

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So even in areas we disagree on, because it comes down to we're only talking about one single factual context in which the resistance was going on at the same time as the alleged excessive force, that's what makes this case barred by the HEC doctrine.

[00:20:54] Speaker 03:
All right.

[00:20:54] Speaker 01:
Judge Lee, any questions?

[00:20:56] Speaker 03:
Yeah, I have one question.

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I guess one benefit of the position taken by opposing counsel is that

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easier rule to administer.

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That is, if the jury's shot, the jury verdict, or the plea deal doesn't specify the factual details, then maybe the heck bar doesn't apply.

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Whereas, I guess, for your position, we would have to look at whether it falls within the same factual context.

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So isn't your opposing counsel's position just an easier rule to apply in future cases?

[00:21:31] Speaker 03:
Well, but it's not the

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would leave, well, it would lead to absurd results, honestly, because you could say, for example, criminal defense threw a series of punches at an officer.

[00:22:04] Speaker 02:
Hey, I plead guilty to the first two punches, but not to the next two punches.

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And treating each act by the defendant as a separate factual context could lead to results that make no sense.

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And the approach that the appellate's taking really removes the teeth out of the act doctrine.

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And it's really no point in having it if we're gonna let criminal defendants get around it in a manner in which appellate's seeking to do it.

[00:22:35] Speaker 01:
Let me ask you one final question.

[00:22:36] Speaker 01:
Why does that issue get sorted out at some point?

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The district court can say, well, a series of four punches, you can't slice it, two punches here, serving as a basis for 148, and then two punches serving as the basis for an excessive force claim.

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Or, in a different factual situation, the district court could say, all right, everything occurring pre-cuffing serves as a basis for 148, and then the force used after is

[00:23:18] Speaker 02:
the plaintiff in the underlying action, the palliator, has incorporated by reference the video.

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And so there's really no question of fact that the court can see from the video that this is all within one factual context.

[00:23:29] Speaker 01:
You can ask him to pick his theory if he said that he would before summary judgment.

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But regardless of the theory he picks, the video demonstrates that this all occurred within the factual context of apprehending the criminal defendant and stopping his resistance.

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So whatever theory he goes by,

[00:24:05] Speaker ?:
Thank you, Your Honor.

[00:24:06] Speaker ?:
Excuse me.

[00:24:06] Speaker ?:
I'd like to pick up with Judge Lee's question.

[00:24:10] Speaker ?:
HEC itself provides the answer.

[00:24:12] Speaker 04:
Does it necessarily imply the invalidity of the conviction with a verdict in favor of my client on the issue of him being slammed to the ground after he had already complied with all the or failed to comply with all

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basis for the 148 to stand.

[00:24:42] Speaker ?:
I think the issue here that I'm hearing from counsel is that this event just didn't go on long enough for a court or a find or a fact to

[00:25:04] Speaker 04:
which is appropriate, and I think if I had not done so, then I would have left myself open to being suggested to try and hide the ball, so to speak, but we did not run away from the fact that this particular transaction was relatively straightforward.

[00:25:25] Speaker ?:
What's the hiding the ball argument?

[00:25:27] Speaker 04:
That we said what happened, and the video would come out later and show something completely different.

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happened and then I tried to articulate the bases and in the complaint itself I tried to articulate that his he was paragraph eight he was thrown face face first down to the ground and his arms wrenched so severely that he suffered the injury that we alleged so we pointed to it I didn't specifically cut it out the other thing I would like to address if

[00:26:07] Speaker 04:
the prosecution absolutely has the opportunity to require as specific a factual basis as they want.

[00:26:16] Speaker 04:
They are asked on the record, do you accept the factual basis as stated, and the answer is usually yes.

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Sometimes it's no, but just as a matter of practice,

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opportunity to speak to the court today.

[00:28:41] Speaker 00:
Thank you.