[00:00:00] Speaker 04:
Mr. Garvin.

[00:00:01] Speaker 03:
May it please the court, counsel.

[00:00:03] Speaker 03:
Oh, I'm going to.

[00:00:04] Speaker 04:
Let's give him a minute just to get settled here.

[00:00:09] Speaker 04:
Not at all.

[00:00:14] Speaker 03:
May it please the court and counsel, Mr. Wagley.

[00:00:17] Speaker 03:
My name is Steve Garvin.

[00:00:18] Speaker 03:
I'm here representing Ms.

[00:00:19] Speaker 03:
Tabitha Snyder in her appeal from the trial in this matter.

[00:00:24] Speaker 03:
I will attempt to reserve three minutes for rebuttal argument.

[00:00:29] Speaker 03:
This case has numerous reversible errors, but I will focus my argument this morning on the denial of qualified immunity.

[00:00:38] Speaker 03:
This Snyder is entitled to qualified immunity because it is indeed the plaintiff's burden to establish that there is to prove that there is clearly established violations of constitutional law that occurred.

[00:00:53] Speaker 03:
I think the parties are in agreement that the only controlling case law is Wallace versus Spencer.

[00:00:59] Speaker 03:
And looking closely at Wallace versus Spencer, rather than allowing plaintiffs to show a clearly established violation, it actually supports that what Ms.

[00:01:09] Speaker 03:
Snyder did falls well within the constitutional framework established by Wallace versus Spencer.

[00:01:15] Speaker 03:
Wallace versus Spencer states that there must be notification to parents and a judicial order prior to a medical evaluation of children unless one of two things is occurring in the situation.

[00:01:31] Speaker 03:
And either of those things is sufficient.

[00:01:34] Speaker 03:
And in this case, Ms.

[00:01:35] Speaker 03:
Snyder had both.

[00:01:37] Speaker 03:
One of those is a reasonable concern that material physical evidence might dissipate

[00:01:43] Speaker 03:
Or the second is a reasonable concern that some urgent medical problem exists requiring immediate attention.

[00:01:53] Speaker 03:
Wallace v. Spencer is insufficient for plaintiffs to use to show that Ms.

[00:01:57] Speaker 03:
Snyder's actions violated a clearly established constitutional law.

[00:02:03] Speaker 04:
At least initially, please go ahead.

[00:02:07] Speaker 00:
Doesn't the case come, the bottom line in the case comes down to primarily this

[00:02:12] Speaker 00:
reasonable belief that urgent medical care was necessary, and that seems to me to be a factual issue.

[00:02:23] Speaker 03:
Yes, one of our two prongs that we rely on is a reasonable concern for an urgent medical condition.

[00:02:30] Speaker 03:
The reason it's not a fact issue for the jury is because there is no clearly established case law saying that where you have children with head trauma, injuries to their eyes, who report frequent and constant abuse in the home, where three of three children report that there is abuse in the home,

[00:02:50] Speaker 03:
where Miss Snyder is unable and untrained to conduct an examination for concussions or head trauma.

[00:02:58] Speaker 03:
She sees the five-year-old girl who has indications of recent head trauma.

[00:03:05] Speaker 03:
The older girl, the high school age girl, VC, reported that she was hit in the head as recently as last night and was hit in the head regularly.

[00:03:14] Speaker 03:
So she's not trained to evaluate these conditions.

[00:03:17] Speaker 03:
And there's no case that says, under these conditions, it is a clearly established violation for her to take them promptly, urgently, and directly, which is what she did in this case, to an emergency room to see, is there a traumatic brain injury?

[00:03:34] Speaker 04:
Is there a concoct?

[00:03:34] Speaker 04:
The issue is, and this is where the district court, I think, was having some trouble with your position, that it's not about whether they needed urgent care.

[00:03:42] Speaker 04:
It's whether they also, she could do all of this without informing the parents about it.

[00:03:50] Speaker 03:
I don't want to speculate too much on the district court's state of mind, but I tend to agree with you that that was where I think their error was because that's an erroneous reading of Wallace.

[00:03:59] Speaker 03:
Wallace doesn't say that if the exceptions apply, you still need to get the parents there.

[00:04:06] Speaker 03:
It doesn't say that what it says.

[00:04:07] Speaker 04:
That's right.

[00:04:08] Speaker 04:
But I mean, I think, you know, when we talk about did the children need medical care, the district court didn't seem to doubt that it was reasonable to think that it would make sense to bring them to be checked out.

[00:04:18] Speaker 04:
The question is, was it so urgent that they needed to do so without even going to get a court order or talking to the parents?

[00:04:26] Speaker 04:
And does that question not turn on basically the reasonableness of Snyder's belief, which is essentially a question that the jury could could resolve either for you or against you.

[00:04:36] Speaker 03:
There's a lot of parts to that question.

[00:04:40] Speaker 03:
Let me try and unpack it as from Miss Snyder's perspective.

[00:04:45] Speaker 03:
First, we would fall back on, unless it is clearly established that doing so is a constitutional violation, she is entitled to the protections of qualified immunity.

[00:04:55] Speaker 03:
Second, if it is concerning or the concern is some type of notice, like why didn't she call the parents and have the parents at least be present or one of the parents at least be present,

[00:05:11] Speaker 03:
That would be a new constitutional requirement that this court would be setting forth for the first time.

[00:05:17] Speaker 03:
Because Wallace versus Spencer doesn't say that if the exceptions apply, you also need to attempt notice or accomplish notice.

[00:05:25] Speaker 03:
It just isn't in that case.

[00:05:28] Speaker 00:
First, let's split up the two groups of children.

[00:05:32] Speaker 00:
So we have the two children without the physical injury but with testimony about child abuse, correct?

[00:05:40] Speaker 03:
The two older children, that is correct, Your Honor.

[00:05:42] Speaker 00:
Right.

[00:05:43] Speaker 00:
And so it seems to me that there you look at man, where it basically says that evidence of child abuse is not sufficient for reasonable concern of a medical emergency, and that really segregates that

[00:05:59] Speaker 00:
small two children from the child with the black eye and the red line and that sort of thing.

[00:06:08] Speaker 00:
So why doesn't man at least resolve qualified immunity with respect to the two children?

[00:06:18] Speaker 03:
So a couple points, and I tried to take some notes to try to track them.

[00:06:21] Speaker 03:
The first, obviously, is man has decided after the events in question.

[00:06:26] Speaker 03:
So man cannot inform the clearly established analysis for Ms.

[00:06:30] Speaker 03:
Snyder.

[00:06:30] Speaker 03:
Man is

[00:06:31] Speaker 03:
a year and a half, two years after the fact when it comes down.

[00:06:35] Speaker 03:
Second, looking at man, the facts in man do not involve injured children at all.

[00:06:43] Speaker 03:
These were children who were subjected to routine examinations at the Polinsky Center in San Diego, regardless of injury, and in man there were no reports of injury, there were no observed injuries,

[00:06:55] Speaker 03:
The examination, I believe, off the top of my head, I think is like three days after the children are taken into custody of the government, to characterize it that way.

[00:07:07] Speaker 03:
So not only can man not inform the clearly established prong, but it also is completely different facts.

[00:07:13] Speaker 03:
So for those reasons, we think the proper analysis is to turn back to the plain language of Wallace, which says, if you have either of these concerns,

[00:07:22] Speaker 03:
You don't have to give notice or get a court order.

[00:07:27] Speaker 03:
These are exigencies.

[00:07:28] Speaker 03:
Man uses the word exigency to describe the two exceptions that were recognized by the court in Wallace.

[00:07:34] Speaker 00:
If we were to disagree with you on the qualified immunity point when we got to the trial, what do you think is the key error made by the district court?

[00:07:45] Speaker 03:
I think there's a lot.

[00:07:47] Speaker 03:
I think that okay, you can have more than one.

[00:07:49] Speaker 03:
I would also ask you to take a close look at quasi prosecutorial immunity because remember look at and I will get to your point.

[00:07:57] Speaker 03:
I'm not trying to dodge it when you look at Wallace.

[00:08:01] Speaker 03:
Wallace says what's required is notice and a court order and giving of notice and seeking of a court order are actions for which Miss Snyder is fully entitled to quasi prosecutorial immunity if she fell short.

[00:08:15] Speaker 03:
But getting to the errors of the district court, I think the jury instructions are where I would ask you to really take a close look.

[00:08:22] Speaker 03:
Both the instruction during trial that was legally incorrect

[00:08:27] Speaker 03:
and unnecessary because the exclusion rule simply does not apply in 1983 cases, but also instruction 2.1.

[00:08:35] Speaker 03:
Instruction 2.1 is both incorrect in its statement of the standard and it is also

[00:08:44] Speaker 03:
It's inconsistent in its own articulation of the standard.

[00:08:49] Speaker 03:
And when we have a legally incorrect instruction, as you know, the burden then falls to the plaintiffs to establish that it was harmless.

[00:08:58] Speaker 03:
And instruction 2.1, not only did it misstate the standard two times, one of the standards that it gave the jury was that a medical examination is unconstitutional unless there is imminent danger of serious bodily injury.

[00:09:15] Speaker 03:
And that's not the standard in Wallace.

[00:09:17] Speaker 03:
That's not the standard in Mann.

[00:09:18] Speaker 03:
That's not any standard, frankly.

[00:09:21] Speaker 03:
So it's legally incorrect.

[00:09:23] Speaker 03:
And the burden then goes upon the plaintiffs to show that it is harmless.

[00:09:28] Speaker 03:
Obviously, if the jury completely was misinstructed on what is the alleged constitutional violation that they are supposed to evaluate for damages, perhaps the court was even confused when it applied the standard to

[00:09:44] Speaker 03:
enter its directed verdict, but certainly the jury was misinstructed with regards to the constitutional violation for which they were asked to determine an appropriate amount of damages.

[00:09:54] Speaker 03:
So I hope that answers your question.

[00:09:56] Speaker 04:
What is fully at stake here?

[00:09:57] Speaker 04:
Is it $175,000?

[00:09:58] Speaker 04:
Is that the is that the amount of the exposure to your client?

[00:10:03] Speaker 03:
That's that is correct.

[00:10:04] Speaker 03:
That was the jury's verdict.

[00:10:05] Speaker 04:
Have you made?

[00:10:06] Speaker 04:
Has there been any efforts to try to mediate this matter?

[00:10:10] Speaker 03:
There have not been efforts to mediate, Your Honor.

[00:10:16] Speaker 03:
I'm happy to talk about why, if you want, but I don't know that it's really before us today.

[00:10:26] Speaker 03:
I'll make one final point with regards to the clearly established and whether or not Ms.

[00:10:31] Speaker 03:
Snyder's actions were reasonable, and that comes from the Mueller v. Aucker case.

[00:10:35] Speaker 03:
When your honors are debating or considering or thinking about the question of whether or not Ms.

[00:10:41] Speaker 03:
Snyder was acting reasonable, Mueller v. Aucker says that it must be judged from the perspective on the scene, and it must embody allowances for the fact that social workers are often forced to make split-second judgments.

[00:10:56] Speaker 03:
And that's exactly what happened with Ms.

[00:10:57] Speaker 03:
Snyder.

[00:10:58] Speaker 03:
These children were placed into her custody by the police department, which put them in protective custody.

[00:11:04] Speaker 03:
That wasn't her action.

[00:11:05] Speaker 03:
That was police.

[00:11:07] Speaker 03:
She now has custody of children.

[00:11:08] Speaker 03:
She has this universe of information, both from her own investigation and from other sources, and she has to make a split-second decision.

[00:11:17] Speaker 03:
And Wallace versus Spencer is simply insufficient to clearly establish that her split second decision, I gotta get these kids checked out, is a constitutional violation.

[00:11:32] Speaker 03:
I'll reserve the rest of my time and ask you to reverse the decision.

[00:11:36] Speaker 03:
Thank you.

[00:11:44] Speaker 01:
Good morning.

[00:11:44] Speaker 01:
May it please the court, Andrew Wagley on behalf of the appellees, Ruth and Roy Cheeseman.

[00:11:50] Speaker 01:
I want to start out with my discussion this morning by framing the issue, an issue that was in front of the district court and right throughout the record that this is what the court was considering.

[00:11:59] Speaker 01:
And it is the parameters of Wallace versus Spencer.

[00:12:04] Speaker 01:
That is the Ninth Circuit case from 2000.

[00:12:06] Speaker 01:
And this comes into the argument in particular regarding qualified immunity.

[00:12:10] Speaker 01:
Because when you analyze qualified immunity,

[00:12:13] Speaker 01:
you look at whether the right is clearly established, the constitutional right at issue.

[00:12:18] Speaker 01:
You do not need, according to the Ninth Circuit authority, you don't need closely analogous prior case law involving an identical fact context, and you don't need a case that's on, quote unquote, all fours in order for qualified immunity to be denied.

[00:12:35] Speaker 01:
Wallace versus Spencer did nothing new

[00:12:38] Speaker 01:
analyze the 14th Amendment due process right, the right to family association, which includes, as Wallace said, the right to family association includes the right of parents to make important medical decisions for their children and for the children to have those decisions made by their parents rather than the state.

[00:12:56] Speaker 01:
And it includes the right of the parents to be present during medical examinations.

[00:13:00] Speaker 01:
And as the panel is well aware, this is kind of a catch-22 situation in the sense that we have

[00:13:07] Speaker 01:
important constitutional rights of the parents and the children at issue.

[00:13:11] Speaker 01:
And then we also have the state's interest in preventing child abuse or investigating child abuse.

[00:13:16] Speaker 01:
But again, the issue.

[00:13:18] Speaker 04:
I'll tell you where I have some difficulty with your position, which is why wasn't it at least a disputed fact as to whether Mrs. Snyder's belief was an objectively reasonable.

[00:13:30] Speaker 01:
Your honor, I think that somewhat turns on what is the burden

[00:13:35] Speaker 01:
for the exceptions to Wallace.

[00:13:37] Speaker 01:
The way I see it in my mind is that it's like a search warrant requirement.

[00:13:41] Speaker 01:
And if there's an exception, then the government has to prove the exception because it's violating a constitutional right unless an exception applies.

[00:13:49] Speaker 01:
And also, how are the cheesemans supposed to know what is going on in the head of Ms.

[00:13:54] Speaker 01:
Snyder, the defendant?

[00:13:55] Speaker 04:
But even I'll go with you on that.

[00:13:57] Speaker 04:
I mean, the district court's order says there was no evidence

[00:14:01] Speaker 04:
Introduced regarding any perceived medical problem that required immediate attention.

[00:14:07] Speaker 04:
Is that not at least disputed that?

[00:14:09] Speaker 01:
That is not disputed from our perspective.

[00:14:11] Speaker 01:
Why do you say that because?

[00:14:13] Speaker 04:
I'm not sure I agree with you.

[00:14:15] Speaker 01:
Let's hear we have to say your honor I think you need to look at the timeline for when this occurred and how that is fleshed out in the record The timeline is that the injury occurred on December 5th?

[00:14:25] Speaker 01:
2016 the invested court investigatory medical examination

[00:14:30] Speaker 01:
occurred on December 8, 2016, so three days later.

[00:14:34] Speaker 01:
Ms.

[00:14:35] Speaker 01:
Snyder was notified of the issue with the child, which was a bruise around the eye, was notified about that on December 7, the day before the investigatory medical examination.

[00:14:45] Speaker 01:
CPS was notified that they didn't take action then.

[00:14:48] Speaker 01:
The record indicates that they said

[00:14:50] Speaker 01:
They couldn't follow their procedure because law enforcement wasn't available and school was almost going to end.

[00:14:55] Speaker 01:
But the child was allowed to go home with the father the day of December 7th.

[00:14:59] Speaker 01:
If it's truly an emergent situation, that doesn't make sense to me.

[00:15:04] Speaker 01:
And then also when the investigation occurred on December 8th, there was an interview prior to it with Ms.

[00:15:10] Speaker 01:
Snyder and law enforcement.

[00:15:12] Speaker 01:
And during this interview, the uncontrollable

[00:15:15] Speaker 01:
sorry, uncontroverted testimony at trial was that the youngest child, the five-year-old, was alert, oriented, no signs of a concussion, sitting up in a chair, able to answer questions for approximately 45 minutes before they took her for an investigatory medical exam.

[00:15:32] Speaker 01:
So in this situation, the injury is, it cannot be said to be

[00:15:36] Speaker 01:
emergent because they let the child go home the day before.

[00:15:38] Speaker 01:
The child is alert and oriented.

[00:15:40] Speaker 02:
The fact that you've taken at least a minute to outline a set of facts to point to a conclusion sort of invites the sense there's a dispute in there because there are lots of things in what you just said that I suspect there's a different point of view that could be offered.

[00:15:55] Speaker 01:
I think part of it as well is... It's pretty complicated.

[00:16:00] Speaker 01:
Part of it is

[00:16:01] Speaker 01:
Wallace requires some urgent medical problem requiring immediate attention, immediate attention as in an emergency when the child was allowed to go home the day before.

[00:16:12] Speaker 01:
And also Wallace, there's an exception if there's a material

[00:16:16] Speaker 01:
There's a concern that material physical evidence might dissipate.

[00:16:20] Speaker 01:
And there was pictures, there was multiple pictures taken of the broves.

[00:16:23] Speaker 04:
Why wouldn't it be immediate concern when somebody could believe this, reasonably, that all three children had reported being struck by the fathers, some very recently?

[00:16:34] Speaker 01:
I think that is, it somewhat goes to the evidentiary ruling of the court, that that evidence of that might be material to why the investigation occurred.

[00:16:44] Speaker 01:
But it's not material to Wallace because, again, of the right of Wallace and the exceptions to Wallace and allegations of past abuse don't necessarily show an urgent medical problem requiring immediate attention.

[00:16:59] Speaker 00:
Was there any physical harm in Wallace?

[00:17:02] Speaker 01:
In Wallace, there was not physical harm.

[00:17:05] Speaker 00:
So I mean, it's hard to hang this on some of those broad statements when, in fact, here the social work investigator has in front of her a child with a parent medical issue

[00:17:22] Speaker 00:
and testimony from the other children.

[00:17:25] Speaker 00:
So what concerns me, and I'd appreciate your comment, I feel like the district court, particularly in making the judgment as a matter of law, use the wrong standard.

[00:17:36] Speaker 00:
So it's not what happened when the kid gets to the doctor and the doctor decides, oh, we don't have a concussion, we don't have whatever.

[00:17:44] Speaker 00:
It's this reasonable belief.

[00:17:46] Speaker 00:
Why isn't that just a pure jury issue?

[00:17:50] Speaker 01:
Your honor, I don't think it comes down to reasonable belief.

[00:17:54] Speaker 01:
Again, the language from Wallace is urgent medical problem requiring immediate attention.

[00:18:00] Speaker 00:
But it has to be, isn't that predicated on a reasonable belief?

[00:18:06] Speaker 01:
I agree, Your Honor.

[00:18:07] Speaker 00:
So you've kind of left out the most important part of that that precedes it.

[00:18:11] Speaker 00:
You have to have a reasonable belief that x, either you need immediate medical attention or evidence could dissipate.

[00:18:18] Speaker 00:
So I don't feel the way this trial was constructed that social worker ever got to really testify.

[00:18:27] Speaker 00:
And the jury didn't really understand the issue is reasonable belief.

[00:18:33] Speaker 01:
Wallace cites to a second circuit case.

[00:18:35] Speaker 01:
I don't have the citation in front of me.

[00:18:37] Speaker 01:
It's Van Hemkens, I believe.

[00:18:39] Speaker 01:
And in that case, there was a broken bone involved with the child.

[00:18:44] Speaker 01:
And the CPS worker was denied qualified immunity because even though they got a court order, they didn't provide notice to the parents.

[00:18:53] Speaker 01:
And I think what this entails is Wallace stands for the proposition that you have the right to be present

[00:18:59] Speaker 01:
as a parent during an investigatory medical examination.

[00:19:02] Speaker 01:
And defendant Snyder in the record didn't even try to notify the Cheesemans that this was going to happen.

[00:19:09] Speaker 01:
She didn't.

[00:19:10] Speaker 00:
I mean, that's a given.

[00:19:11] Speaker 01:
She didn't notify the Cheesemans.

[00:19:12] Speaker 00:
Parents weren't involved, period.

[00:19:14] Speaker 00:
But that doesn't necessarily impose liability on her.

[00:19:18] Speaker 01:
Your Honor, I would say that judgment as a matter of law, multiple issues can be argued to be reasonable.

[00:19:24] Speaker 01:
You know, what is reasonable?

[00:19:26] Speaker 01:
And when you think of summary judgment, it's the same standard as the cases say, as judgment as a matter of law.

[00:19:31] Speaker 01:
Judge Bastion made a record that he looked at the declaration of Ms.

[00:19:36] Speaker 01:
Snyder that was in the court file, where there is a possibility, I believe, of urgent medical condition, and then he also let

[00:19:44] Speaker 01:
Mr. Garvin make a proffer outside of the presence of the jury with Ms.

[00:19:50] Speaker 01:
Snyder regarding what evidence you would put on pertaining to, if the exception to Wallace applies.

[00:19:59] Speaker 01:
And this is on 1ER.

[00:20:01] Speaker 01:
I believe it's 208.

[00:20:04] Speaker 01:
And in essence, she said, I observed that she had a swollen right eye that was discolored, that there was obvious bruising on the top and bottom eyelids, that she had a red mark.

[00:20:14] Speaker 01:
It was clear to me that she had not been to see a doctor since the event that occurred to cause the black eye.

[00:20:21] Speaker 01:
Based upon that, it's urgent to take Elsie to the emergency room to arrest, to assess further.

[00:20:27] Speaker 01:
And then she also says at the end of that proffer, this is on one ER 212, she says, at the time I was still in investigation mode when asked, why didn't you notify the parents?

[00:20:37] Speaker 01:
I was still in investigation mode.

[00:20:39] Speaker 01:
My obligation is not to notify a parent as soon as possible.

[00:20:45] Speaker 01:
State statutes say my obligation is to notify a parent as soon as possible.

[00:20:49] Speaker 01:
And I felt like gathering the information from a medical provider was pertinent to have prior to notifying the parents.

[00:20:55] Speaker 01:
And so what rule 50 stands for is that if there's issues based upon facts that are developed at trial, that a litigant cannot meet a burden of proof.

[00:21:07] Speaker 01:
And here I would offer to the court that it is on the defendant to prove the exceptions to Wallace if it's

[00:21:13] Speaker 04:
Not apparent if it's apparent that the litigant cannot meet that burden Then the judge as the gatekeeper under rule 50 can pull the issue from the jury and determine it as a matter of law Can I ask you you you reference this which was um some of the district court's evidentiary decisions specifically with respect to Roy cheeseman's alleged abuse of the children because what the district court said in his order was that this was not relevant to the question of whether

[00:21:39] Speaker 04:
Snyder violated, um, the plaintiff's constitutional rights.

[00:21:43] Speaker 04:
And I guess I questioned that because here she, she obviously observed some physical injuries, but she did know something about what the children were experiencing at home.

[00:21:53] Speaker 04:
And I think she also testified that the children are not always fully forthcoming about what's happening at home.

[00:21:58] Speaker 04:
And so why, why was the history of abuse not relevant to her objectively reasonable belief?

[00:22:06] Speaker 01:
I think it's relevant to why she started the investigation in the first place.

[00:22:10] Speaker 01:
But then again, I think it goes back to Wallace and the requirements and who has to prove the exigent circumstances.

[00:22:18] Speaker 01:
And from my position, I think it's more than just reasonableness.

[00:22:22] Speaker 01:
Otherwise, it would eradicate the whole purpose behind Wallace.

[00:22:26] Speaker 01:
And I think another portion of the court's ruling in that regard is this was a 1983 claim on a constitutional violation in front of a jury.

[00:22:34] Speaker 01:
And evidence involving a case where the parents were excluded from an investigatory medical examination, evidence regarding allegations of abuse by one of the plaintiffs is highly, highly prejudicial.

[00:22:47] Speaker 01:
And it would taint the plaintiff in the eyes of the jury where, kind of like 403, 404b, where they

[00:22:54] Speaker 01:
would be so prejudiced that they wouldn't be able to look at the issue.

[00:22:56] Speaker 04:
There may need to be some need to put limits on that.

[00:22:58] Speaker 04:
I take that point.

[00:22:59] Speaker 04:
I guess the question I have is whether this is on the other hand unduly limiting Ms.

[00:23:05] Speaker 04:
Snyder's defense and being able to explain to the jury as to why she did what she did.

[00:23:10] Speaker 01:
Don't believe so, Your Honor, and I apologize if I'm evading the question.

[00:23:14] Speaker 01:
I'm not trying to.

[00:23:14] Speaker 01:
No, you're not.

[00:23:15] Speaker 01:
You're not.

[00:23:15] Speaker 01:
Go ahead.

[00:23:15] Speaker 01:
I think part of this is Rule 50 says in the comments in the cases that are set out in our briefing that the issue should be identified to the other side, like the judge should say, here is what I think the deficiency is in your case so that you have an opportunity to remedy that.

[00:23:33] Speaker 01:
And that is what Judge Bastion said to defend it throughout this case.

[00:23:36] Speaker 01:
And it's in the order in the record at the pretrial conference.

[00:23:40] Speaker 01:
In essence, he said, this is how I view the case, is the requirements of Wallace and the exigent circumstances of Wallace.

[00:23:46] Speaker 01:
And before letting Mr. Garvin create a proffer of questions that he was going to ask Ms.

[00:23:52] Speaker 01:
Snyder in front of the jury, he said, in essence, allegations of child abuse and seeing a bruise, that's not enough to get to the Wallace exceptions.

[00:24:01] Speaker 01:
And so in that circumstance, I think it can be decided as a matter of law.

[00:24:08] Speaker 04:
You think there's a difference between just seeing a bruise and then seeing a bruise with knowledge of a history of abuse in the home?

[00:24:15] Speaker 01:
I think there is a difference for that, but I think even a bruise with knowledge of abuse in the home, you have to look at the timeline again, that this investigatory medical examination occurred later in the day on December 8th, 2016.

[00:24:29] Speaker 01:
It occurred after they had interviewed the five-year-old and she was alert, oriented, sitting up in her chair, not having

[00:24:36] Speaker 01:
any evidence of concussion symptoms and that they photographed the injury multiple times that the child was allowed to go home with the father the day before.

[00:24:46] Speaker 01:
and come back and go through this before going to the investigatory medical examination during the end of the day.

[00:24:53] Speaker 01:
So I think it has to be viewed in that time frame that was presented to Judge Baskin.

[00:24:58] Speaker 02:
You've got to put the social worker between hell and high water.

[00:25:02] Speaker 02:
I mean, if you say, well, she let the child go home with the parents.

[00:25:07] Speaker 02:
At that point, she clearly didn't have enough

[00:25:10] Speaker 02:
to take the child away from the parents.

[00:25:14] Speaker 02:
And so it's hard for me to understand how much weight we can properly put on that to say that undermines the judgment she exercises the next day with regard to the medical examination.

[00:25:25] Speaker 02:
I mean, the whole point of qualified immunity is to protect all but the plainly incompetent or the corrupt.

[00:25:33] Speaker 02:
And I know the jury awarded punitive damages here, but I'm hard pressed as I look through the record to find out what it is that this defendant did that was so corrupt or so evil or so malicious that justified punitive damages, and indeed what it was that was so plainly incompetent.

[00:25:52] Speaker 02:
I imagine what I would do in that situation, and I can't say that I wouldn't necessarily do exactly what defendant here did.

[00:25:59] Speaker 02:
So what is it that should take this issue away from the jury?

[00:26:03] Speaker 01:
Your honor, I think what should take it away from the jury is the evidence that defendant Snyder didn't even try to notify the Cheesemans.

[00:26:09] Speaker 02:
Well, let's say that focuses this claim not on what the claim seems to be about, but on an obligation to notify the parents.

[00:26:17] Speaker 02:
And where is that clearly established in our case law?

[00:26:20] Speaker 01:
That's clearly established from Wallace, your honor, from my reading of Wallace.

[00:26:24] Speaker 02:
Well, we don't have physical abuse in Wallace, so I'm not sure that's a very good fit.

[00:26:29] Speaker 00:
And then you don't have that obligation if the exceptions are invoked, correct?

[00:26:35] Speaker 01:
Correct.

[00:26:35] Speaker 01:
Correct, Your Honor.

[00:26:38] Speaker 01:
Wallace, again, for qualified immunity, it's the right that is at issue, the right being clearly established, not the exceptions to the right in a specific factual situation.

[00:26:47] Speaker 01:
And from our position, defendant Snyder didn't even try to get to that first level and just jumped into the exceptions based upon an investigatory hunch.

[00:26:58] Speaker 01:
Thank you, Your Honors.

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

[00:27:05] Speaker 03:
I'll just make two quick points.

[00:27:08] Speaker 03:
The first is just a factual clarification.

[00:27:11] Speaker 03:
Ms.

[00:27:11] Speaker 03:
Snyder did not, in fact, allow the children to go back to the home.

[00:27:15] Speaker 03:
She can't take any action until the children are put in her custody.

[00:27:18] Speaker 03:
And the first action she takes is to go to the hospital.

[00:27:21] Speaker 03:
So I just want there to be clarity on that.

[00:27:24] Speaker 00:
That was the police.

[00:27:25] Speaker 00:
The police that made that determination that the going home.

[00:27:30] Speaker 03:
It was the police or the school officials.

[00:27:32] Speaker 03:
It wasn't Miss Snyder.

[00:27:33] Speaker 03:
This wasn't her.

[00:27:34] Speaker 03:
It wasn't her and she can't be held responsible for others.

[00:27:37] Speaker 03:
That's that's our position.

[00:27:39] Speaker 03:
I do agree with Mr. Wagley that we don't need identical facts in order to flesh out the parameters.

[00:27:47] Speaker 03:
However, our argument goes to the distinctions between Wallace

[00:27:53] Speaker 03:
and this case and the distinctions are dramatic.

[00:27:57] Speaker 03:
Wallace is a singular case with dramatically different facts and to say that it established clearly established guidelines or constitutional principles for miss Snyder I just think overstates it.

[00:28:09] Speaker 03:
Wallace was a routine invasive

[00:28:12] Speaker 03:
in the context of this wild that the woman who's in a psychological hospital who's saying that there's going to be a satanic sacrifice of the children in the future so there's no allegation that the children are being abused just that they are under threat in the future

[00:28:32] Speaker 03:
There's no corroboration for any of this fantastical story.

[00:28:38] Speaker 03:
And there's a three-day delay in Wallace between when the children come into the custody of the Escondido Police Department, which was the acting defendant in Wallace, not a social worker.

[00:28:51] Speaker 03:
And again, it's this fantastical tale involving future satanic sacrifice.

[00:28:58] Speaker 03:
And it's an invasive examination.

[00:29:00] Speaker 03:
I know that that's not the most controlling point, but the Wallace Court used the word invasive eight times in its decision to characterize the type of medical investigation that they found to be unconstitutional.

[00:29:14] Speaker 03:
And of course nothing like that happened on the facts of our case.

[00:29:17] Speaker 03:
So I just think there's too many dramatic factual distinctions for it to be clearly established to

[00:29:25] Speaker 03:
every reasonable social worker or Ms.

[00:29:27] Speaker 03:
Snyder as a reasonable social worker that she was violating the United States Constitution by taking children with injuries, with reports of abuse, including very recent abuse for a medical examination.

[00:29:40] Speaker 03:
And I haven't even touched on today, but it's in our briefing, the concern for dissipating evidence, such as bruises that are concealed by clothes.

[00:29:52] Speaker 03:
That's sufficient under Wallace, and she had that concern here because she is not able to disrobe children and examine their whole body.

[00:29:58] Speaker 03:
That is uncontradicted in the record, and it's perfectly reasonable for her to think, given the reports of recent ongoing and persistent abuse, that there might be bruises or other injuries that would be concealed by clothing, that she was unable to collect that dissipating evidence.

[00:30:15] Speaker 03:
So for these reasons, we ask that you reverse.

[00:30:17] Speaker 03:
Thank you.

[00:30:19] Speaker 03:
Thank you.

[00:30:19] Speaker 03:
We thank both counsel for their arguments.

[00:30:22] Speaker 04:
This matter is submitted.