[00:00:01] Speaker 02:
Can you see okay Mr. Kim now?

[00:00:03] Speaker 02:
Is it okay for you?

[00:00:05] Speaker 00:
Okay.

[00:00:08] Speaker 02:
Okay.

[00:00:13] Speaker 02:
Alright.

[00:00:14] Speaker 02:
And so each side has 15 minutes and that means 15 minutes total for the appellant.

[00:00:21] Speaker 02:
So we'll start with the, we'll start with the appellants in this matter.

[00:00:29] Speaker 04:
Good morning.

[00:00:30] Speaker 04:
Robert Kahn, Deputy Corporation Counsel for the City and County of Honolulu, and I'd like to reserve five minutes of my time for rebuttal, if I may.

[00:00:39] Speaker 04:
The issue today is whether the three police officer appellants, Christine Nevis, Warren Ford, and Corey Perers, are entitled to qualified immunity based on the allegations in the Second Amendment complaint and the drawing that is referenced dozens of times in that Second Amendment complaint.

[00:00:56] Speaker 04:
That drawing is currently filed in the appellate record under seal.

[00:01:00] Speaker 04:
But the officers requested it now be publicly filed in the form of the high resolution redacted version that was publicly filed in the district court last week on June 5th with the agreement of counsel.

[00:01:11] Speaker 04:
The public has a right to see this threatening drawing at the heart of the appeal.

[00:01:15] Speaker 01:
So I had a question about that.

[00:01:16] Speaker 01:
Have you supplied that to the court?

[00:01:21] Speaker 04:
I have not yet.

[00:01:23] Speaker 04:
because it's, I mean, there's a pending motion to be able to file a redacted that was taken under advisement, I guess.

[00:01:32] Speaker 01:
You filed a pending motion to file a redacted version, but we haven't yet seen that, have we?

[00:01:40] Speaker 04:
No, and through working with opposing counsel, if one is to be filed, if that were the ruling,

[00:01:50] Speaker 04:
I think our agreement would be, they requested, and we got it from Honolulu Police Department, a high resolution version with the names redacted.

[00:02:00] Speaker 04:
And so if there's something, if it's going to be filed in the appellate record, from the Council's point of view, I think by agreement, we would prefer that it be the high resolution version with the names redacted.

[00:02:11] Speaker 04:
But I think all the, what's filed in the appellate record now is the lower.

[00:02:17] Speaker 04:
I've seen something, I've seen something, some drawing.

[00:02:22] Speaker 04:
But I'm not sure the names are redacted on that or sufficiently redacted.

[00:02:27] Speaker 01:
So I had a couple procedural questions before you get into the substance of your argument.

[00:02:35] Speaker 01:
We're dealing here with motion to dismiss, correct?

[00:02:41] Speaker 04:
On the second amended complaint, yes.

[00:02:43] Speaker 01:
Yes, right.

[00:02:44] Speaker 01:
Your qualified immunity claims are directed to a complaint.

[00:02:48] Speaker 01:
And so we're dealing with a 12b6 motion to dismiss, correct?

[00:02:52] Speaker 04:
Yes.

[00:02:53] Speaker 01:
Not a summary judgment motion.

[00:02:55] Speaker 04:
No, although one has been filed.

[00:02:58] Speaker 01:
Now you're taking me down the trail I'd like to follow.

[00:03:04] Speaker 01:
One has been filed, and your filings tell us that it's pending in the district court.

[00:03:10] Speaker 01:
If the district court rules on the summary judgment motion one way or the other, would it moot this appeal in advance of us ruling?

[00:03:24] Speaker 04:
Well, let me answer it this way.

[00:03:25] Speaker 04:
First of all, it still hasn't been scheduled for a hearing.

[00:03:30] Speaker 04:
And it's likely, in my experience, the Ninth Circuit often will get, after oral argument, will get an opinion out in, I don't know, something like a month.

[00:03:38] Speaker 04:
And so I think just in probability, this opinion would come first.

[00:03:43] Speaker 04:
It would be on the Second Amendment complaint.

[00:03:45] Speaker 04:
And if qualified immunity were granted on

[00:03:48] Speaker 04:
either of the claims for either of the officers, any of the officers, that would bind.

[00:03:54] Speaker 01:
Yeah, no, I understand that, but that's not the question I asked you.

[00:03:57] Speaker 01:
I agree that if we find qualified immunity on either of the claims or any of the officers, the summary judgment motion would be mooted as to those claims or those officers.

[00:04:09] Speaker 01:
My question is, what if the district court is quicker than we are?

[00:04:13] Speaker 01:
Isn't your appeal mooted?

[00:04:18] Speaker 04:
I would say not.

[00:04:19] Speaker 04:
Often, I've seen this a few times in the case law where they get consolidated, but if the judge, as we might guess, since she doesn't like qualified immunity, if she denies qualified immunity, we will appeal that one too.

[00:04:35] Speaker 04:
And then if your opinion is not out yet as part of your question,

[00:04:39] Speaker 04:
then you have these two appeals.

[00:04:41] Speaker 01:
See, but my problem is, my problem, the premise of my question is if we were reviewing a summary judgment motion, we wouldn't be reviewing the sufficiency of the pleadings, but rather whether or not based on the submissions made to the district court, there's a material issue of fact.

[00:05:00] Speaker 01:
And now what we're doing is taking the

[00:05:04] Speaker 01:
elements of the complaint in the light most favorable to your friend.

[00:05:08] Speaker 01:
So I would think, however the district court stuff comes out on summary judgment, since you lost on the motions to dismiss, you would much prefer us to be reviewing a summary judgment ruling where you've made submissions.

[00:05:21] Speaker 01:
So I'm trying to figure out why you want us to address this case when you'll probably have a full record after the district court rules to address the issue.

[00:05:33] Speaker 04:
Well, the Supreme Court has said that qualified immunity should be raised early in a case.

[00:05:37] Speaker 04:
You shouldn't have to, it's immunity from trial, but also the burdens of the pretrial matters, including discovery.

[00:05:46] Speaker 03:
Now, all of that was denied.

[00:05:47] Speaker 03:
The case is where it is at this point.

[00:05:49] Speaker 03:
So, I mean, I share the same question.

[00:05:51] Speaker 03:
I understand that, but we are where we are.

[00:05:55] Speaker 03:
And I, too, would have thought that you would just want to wait for summary judgment.

[00:06:01] Speaker 03:
I can't understand what we're doing.

[00:06:04] Speaker 04:
Go ahead.

[00:06:05] Speaker 04:
Well, we timely appealed the denial of qualified immunity based on the allegations in the second amended complaint.

[00:06:13] Speaker 04:
And I'm prepared to argue while we think that's correct, and they are entitled to qualified immunity.

[00:06:20] Speaker 04:
If they're entitled to qualified immunity on the second amended complaint, they should get out of the case.

[00:06:25] Speaker 04:
The case can go on with what's left.

[00:06:27] Speaker 01:
Yeah, I entirely agree with your point, but the reason I raise this is you're the one who came to us and said we should put this off, right?

[00:06:38] Speaker 04:
Well, that was a denied motion.

[00:06:40] Speaker 01:
Yeah, we denied the motion because we wanted, frankly, we wanted to be able to talk about all this with you in the courtroom.

[00:06:47] Speaker 01:
So you came to us and said, put this off until the summary judgment motion is ruled on.

[00:06:54] Speaker 01:
Then you can come back to this case.

[00:06:56] Speaker 01:
and deal with it then.

[00:06:59] Speaker 01:
And I guess one of the things that was attractive to me about your motion, which hasn't been denied at all time or for perpetuity, I suppose, is that it would be better to review this on a summary judgment record rather than simply on the

[00:07:14] Speaker 02:
Complaints, so I understand that you're saying the officers are entitled to a prompt resolution But you're the one who asked us not to arrive at a prompt resolution So again, I asked I objected right I think right so and now you're basically saying if I'm gonna win go go go go if I'm gonna lose wait wait wait so But we can't we can't but we have to look at the motions for

[00:07:41] Speaker 02:
you know it's obviously by the time we got the motion you know some people might dispute how well prepared we are but we were already well prepared to hear this case by the time we heard from the parties you're you know asking us to continue it but I suppose can we go to the merits then I guess at this point we know what there we know what the reasons are I suppose okay so

[00:08:14] Speaker 02:
All right, let's assume there isn't any case that specifically says that you can't arrest a 10-year-old for a drawing like this, if there's not specifically a case.

[00:08:31] Speaker 02:
Could this be argued?

[00:08:32] Speaker 02:
It's just one of those situations that every, well, I mean, obviously if it were a two-year-old that made a drawing, we'd probably say you can't handcuff a two-year-old, right?

[00:08:44] Speaker 02:
We wouldn't need a case for that.

[00:08:49] Speaker 04:
Well, that's definitely a different hypothetical, Judge Callahan.

[00:08:53] Speaker 02:
Well, but at some point, the age here, I think there's, I mean, arguably, there isn't a specific case that says you can't arrest a 10-year-old under these circumstances.

[00:09:04] Speaker 02:
And your argument, I guess, is so they're not unnoticed, right?

[00:09:08] Speaker 02:
So then they're entitled to on the second prong of qualified immunity.

[00:09:11] Speaker 02:
Am I getting it wrong?

[00:09:14] Speaker 02:
Or is that?

[00:09:14] Speaker 02:
That's correct.

[00:09:15] Speaker 02:
OK.

[00:09:16] Speaker 02:
That's correct.

[00:09:16] Speaker 02:
But probably if we went low enough, it might not need to have a case for a reasonable officer to say, we can't handcuff a, you know, we don't need to handcuff a four-year-old.

[00:09:30] Speaker 02:
We don't need to handcuff a six-year-old.

[00:09:32] Speaker 02:
I mean, why wouldn't a reasonable, why wouldn't this be the case?

[00:09:38] Speaker 02:
Because it was a 10-year-old.

[00:09:41] Speaker 04:
Well, I think we're here under the qualified immunity analysis.

[00:09:46] Speaker 04:
And if what you're saying is that there's a certain low age where then you're falling into the obvious exception basically to qualified immunity.

[00:09:57] Speaker 04:
And the court has said multiple times that that's a very rare situation.

[00:10:03] Speaker 04:
The district court and the appellees argue that this is an obvious case, and then they cite authorities for that.

[00:10:10] Speaker 04:
But those authorities are not clearly established law for a case where someone is being put under arrest for threatening conduct.

[00:10:23] Speaker 03:
What about Sonora?

[00:10:24] Speaker 03:
Why isn't this case...

[00:10:26] Speaker 03:
like the Sonora case.

[00:10:29] Speaker 03:
You had there an 11-year-old, compliant, although non-responsive.

[00:10:36] Speaker 04:
Sonora was never placed under arrest, and there was no threatening behavior involved in that case.

[00:10:42] Speaker 03:
Was there threatening behavior here at the time of the actual handcuffing?

[00:10:51] Speaker 04:
Well, at the time of the handcuffing, she was under arrest for

[00:10:55] Speaker 04:
based on the probable cause to arrest based on the drawing?

[00:10:59] Speaker 01:
Assume that to be true.

[00:11:00] Speaker 01:
Assume that they had probable cause to arrest her based on the drawing.

[00:11:06] Speaker 01:
Is it your position that no matter the age of the perpetrator, the officers are entitled to handcuff the perpetrator?

[00:11:18] Speaker 01:
Unless you're prepared to find that it's an obvious case, which Sonora... No, Sonora tells us that handcuffing, handcuffing, we're talking about excessive use of force now.

[00:11:29] Speaker 01:
Yeah, we're not talking about the probable... We're not talking about probable cause to arrest.

[00:11:33] Speaker 01:
Handcuffing a compliant 10-year-old is excessive force.

[00:11:39] Speaker 01:
And here we have, the only difference, I think, is that this person is, for purposes of my question, justifiably under arrest.

[00:11:49] Speaker 01:
So I take it your position has to be that the fact that she is under arrest makes CB not a clearly established law.

[00:12:01] Speaker 04:
Correct, Judge Hurwitz.

[00:12:02] Speaker 04:
And if I may, I'd like to.

[00:12:04] Speaker 01:
So therefore, your position is that there is no clearly established law that would prevent the handcuffing of no matter how compliant a person of this age once she is arrested.

[00:12:20] Speaker 04:
If I might answer that by quoting Graham 35 years ago, the right to make an arrest necessarily carries with it the right to use some degree of physical coercion to affect it.

[00:12:33] Speaker 01:
Nobody doubts that.

[00:12:34] Speaker 01:
The question is whether it's an excessive degree of restraint.

[00:12:41] Speaker 01:
Nobody doubts that they had the right, for the purpose of my question, to arrest this young woman, put her in the back of a police car,

[00:12:49] Speaker 01:
and take her to the police station.

[00:12:51] Speaker 01:
I understand your friend will argue that point.

[00:12:55] Speaker 01:
My question is, there must be at some point at which the amount of restraint put on her in that car is excessive.

[00:13:01] Speaker 01:
You do agree that they couldn't tape her mouth and eyes and put shackles on her when they put her in the back of the car.

[00:13:10] Speaker 01:
So the excessive force principle does apply to people even after they're

[00:13:16] Speaker 01:
properly arrested and being transported.

[00:13:19] Speaker 01:
I'm trying to figure out what the limit of your argument is.

[00:13:23] Speaker 04:
Well, there's case law, kind of two branches of case law.

[00:13:28] Speaker 04:
One is when you have arrest, and if it's a routine handcuffing, that's usually permitted.

[00:13:34] Speaker 04:
To actually get to a jury on that, the Ninth Circuit requires medical records.

[00:13:39] Speaker 04:
And here, there's no allegations of pain, only allegations that it left marks.

[00:13:43] Speaker 04:
So I think the excessive force claim fails.

[00:13:46] Speaker 04:
Two of the members of the panel that I'm speaking to right now

[00:13:50] Speaker 04:
expressly rejected the argument that mere handcuffing violates the Fourth Amendment.

[00:13:55] Speaker 01:
In the context of a juvenile?

[00:13:59] Speaker 04:
I'm not sure it was the context.

[00:14:00] Speaker 01:
Yeah, I don't think so.

[00:14:01] Speaker 02:
Oh, I'm confused about if this was a misstatement or whatever, that supposedly they put adult cuffs on a 10-year-old, but they're saying that they're too tight.

[00:14:16] Speaker 02:
seemed like the opposite of what it would be like if you put child handcuffs on an adult.

[00:14:24] Speaker 02:
You could see why they would be too tight.

[00:14:26] Speaker 02:
It seemed like adult handcuffs would just sort of hang.

[00:14:33] Speaker 02:
Was that a misstatement in the record or is that correct?

[00:14:37] Speaker 04:
Well there's the facts as we know them after discovery is closed and then there's the allegations in the Second Amendment complaint.

[00:14:44] Speaker 04:
So in the second amended complaint, it said they left marks.

[00:14:49] Speaker 04:
It doesn't say pain.

[00:14:51] Speaker 04:
It said left marks.

[00:14:52] Speaker 04:
That's actually quite common with handcuffs.

[00:14:53] Speaker 04:
They leave marks.

[00:14:56] Speaker 04:
So we know what's in the record and what she testified in her deposition, but that's not

[00:15:02] Speaker 04:
technically before you today.

[00:15:05] Speaker 04:
I can answer the question, but the force was inquired.

[00:15:08] Speaker 02:
Do you accept the fact that technically, and I'm just saying this hypothetically, because we have not conferenced on the case, that we could find that the officers are entitled to qualified immunity on probable cause to arrest, but they're not entitled to qualified immunity on excessive force?

[00:15:32] Speaker 02:
just because you find on one doesn't necessarily follow that you find on the others, right?

[00:15:38] Speaker 04:
I agree with that, Judge Callahan.

[00:15:40] Speaker 04:
Qualified immunity is claim specific, so you're entitled to it claim by claim, and the court could conclude, if that's the court's conclusion, qualified immunity should apply as to probable cause to arrest, and if the court so found that it

[00:15:56] Speaker 04:
The qualified immunity does not apply on the excessive force claim.

[00:16:00] Speaker 04:
That's what the case law holds.

[00:16:03] Speaker 02:
Okay.

[00:16:04] Speaker 02:
Do either of you have any questions?

[00:16:05] Speaker 02:
No.

[00:16:05] Speaker 02:
Thank you.

[00:16:06] Speaker 02:
Okay.

[00:16:06] Speaker 02:
I'm going to give you some extra time on rebuttal because we took a lot of time talking about this motion to stay, to continue, or whatever it was.

[00:16:14] Speaker 02:
So I'll give you three minutes for rebuttal.

[00:16:17] Speaker 02:
All right.

[00:16:18] Speaker 02:
Thank you.

[00:16:19] Speaker 02:
We're ready to hear from the appellee.

[00:16:23] Speaker 02:
Good morning.

[00:16:25] Speaker 00:
Good morning.

[00:16:25] Speaker 00:
May it please the court.

[00:16:26] Speaker 00:
My name is Wookie Kim.

[00:16:27] Speaker 00:
I represent plaintiffs, appellees, Enby and Tamara Taylor.

[00:16:32] Speaker 00:
You've heard a lot of talk today about the drawing, the drawing that in the officer's view justified everything that occurred to Enby, who was a 10 year old child with a disability.

[00:16:43] Speaker 00:
It justified the handcuffing and it justified her arrest for terroristic threatening.

[00:16:49] Speaker 00:
But the constitutional inquiry doesn't focus on the drawing.

[00:16:53] Speaker 00:
It focuses on the officer's conduct.

[00:16:57] Speaker 00:
Was there a response?

[00:16:57] Speaker 02:
Well, I think this would be a different case if, say, when I was growing up, if kids drew things that, regardless of how threatening they look, I think it would be a different case.

[00:17:08] Speaker 02:
Because I didn't grow up at a time where kids came to school and shot people or were

[00:17:15] Speaker 02:
kids brought weapons to school as far as that.

[00:17:18] Speaker 02:
That was not a part of my existence.

[00:17:21] Speaker 02:
So part of the world we live in now, when things are threatening, it does put schools in a different position about what they have to do.

[00:17:31] Speaker 02:
And it's not unheard of for young children to have access to weapons or whatever.

[00:17:38] Speaker 02:
And I don't know, the drawing that I saw was pretty threatening, pretty graphic.

[00:17:46] Speaker 00:
So I think Your Honor's question gets to the issue of whether the drawing was objectively a true threat and there are some critical facts that are alleged in the complaint that undermine the idea that

[00:18:03] Speaker 00:
anyone was afraid of something happening.

[00:18:06] Speaker 00:
And the most important fact on this point is that the school administrators received the drawing the day before everything happened.

[00:18:15] Speaker 00:
If the administrators truly believed that NB had some ability to carry out or follow through on this threat,

[00:18:22] Speaker 00:
They would have called the police as soon as you received them.

[00:18:25] Speaker 01:
We really can't decide whether a true threat was posed by the actions of school administrators, at least on the face of by the actions of school administrators.

[00:18:36] Speaker 02:
There were prior threats and they did nothing and then someone comes and mows the school down.

[00:18:43] Speaker 01:
We've had a bunch of really bad history recently about school administrators.

[00:18:47] Speaker 00:
Not recognize threats.

[00:18:48] Speaker 00:
Understood, understood.

[00:18:49] Speaker 00:
I would point this court to the case law around true threats.

[00:18:54] Speaker 00:
And in particular, we're talking about terroristic threatening under the Hawaii revised statutes.

[00:18:59] Speaker 00:
And both starting from three decades ago in State versus Chung, the Hawaii Supreme Court made very clear that there's only one type of threat that can be prosecuted.

[00:19:11] Speaker 00:
And that's a true threat.

[00:19:13] Speaker 00:
And as far as how they defined what that meant,

[00:19:16] Speaker 00:
The threat has to, according to the language and context, convey a gravity of purpose and likelihood of execution.

[00:19:25] Speaker 00:
It also needs to be so unambiguous and have such immediacy that it convincingly expresses an intention of being carried out.

[00:19:34] Speaker 01:
Let's assume you're right.

[00:19:35] Speaker 01:
Let's just, because it seems to me that if this were, we were reviewing a guilty verdict in a true threat crime prosecution, you'd have a great argument.

[00:19:47] Speaker 01:
But here we're reviewing the actions of police officers arresting, see your client, I have the wrong initials, arresting EB.

[00:19:58] Speaker 01:
So what case

[00:20:01] Speaker 01:
tells them that under this circumstance, and I'm not really worried about the nature of the charge, they may have charged her with the wrong offense, that they don't have probable cause to detain her.

[00:20:14] Speaker 01:
When they get her to the police station and everything gets sorted out, a smart prosecutor looks at this and says, I don't think this is enough evidence to go forward, so I'm gonna dismiss it.

[00:20:23] Speaker 01:
But that's not their standard.

[00:20:25] Speaker 01:
The standard for us is, is there a case that, with facts like this one,

[00:20:30] Speaker 01:
or somewhat like this one, it tells them they can't detain her.

[00:20:35] Speaker 00:
So we don't have a case involving a drawing, but that said, the case that is most analogous here is in-ray PP.

[00:20:43] Speaker 00:
And again, we have to understand that it's not just any sort of threat that can be charged or arrested for.

[00:20:50] Speaker 00:
It has to be a true threat.

[00:20:51] Speaker 00:
And in in-ray PP, you had a 16-year-old, so also involving a juvenile, who was at a youth shelter.

[00:20:57] Speaker 00:
And this juvenile got really upset after she was punished, he was punished, for not completing his chores.

[00:21:08] Speaker 00:
And as a result, he got really upset.

[00:21:10] Speaker 00:
He started punching the couch.

[00:21:12] Speaker 00:
He started threatening to kill one of the counselors.

[00:21:15] Speaker 00:
And the court held that that was not a true threat.

[00:21:18] Speaker 00:
It was merely an expression of childish feelings.

[00:21:21] Speaker 00:
And this goes to, I think, what the court has already identified as a factor that maybe distinguishes this case from kind of the general Fourth Amendment jurisprudence, which is the age.

[00:21:32] Speaker 00:
We're talking about a 10-year-old child.

[00:21:34] Speaker 00:
We're not talking about an adult, and there are questions about how these doctrines apply in that context.

[00:21:40] Speaker 00:
And in INREPP, that court made very clear

[00:21:43] Speaker 00:
that even if a child says really threatening things and is using physical aggression alongside, that is not enough.

[00:21:52] Speaker 03:
You're talking about a child acting out physically and making threats toward an adult.

[00:21:58] Speaker 03:
Here you have a child allegedly making threats toward another child, different context, not a youth shelter or school.

[00:22:07] Speaker 03:
The court has said that we can't look at qualified immunity at a high level of generality.

[00:22:11] Speaker 03:
It has to be pretty close to the particular facts of the case.

[00:22:15] Speaker 03:
So, but that's the best.

[00:22:17] Speaker 00:
Well, so let me take a step back.

[00:22:20] Speaker 00:
What's very clearly established under the law in Gashow, Gashow versus United States, is that when a crime has a specific intent element, an officer needs probable cause as to the intent element.

[00:22:34] Speaker 00:
there's either the intent to terrorize or the reckless disregard.

[00:22:38] Speaker 00:
And there's, based on the facts that are alleged in the complaint, no reasonable officer could conclude that, based on a drawing that the officer knew was created by multiple elementary school children, in the context of a squabble over boyfriends that involved the pouring of ranch dressing, no reasonable officer could conclude that that drawing by itself

[00:23:02] Speaker 00:
constituted any meaningful threat.

[00:23:04] Speaker 00:
Again, we're not talking about a situation like the State versus Chung case where a teacher talked to four other teachers and said, I'm gonna end my life soon, I'm gonna shoot the principal first.

[00:23:17] Speaker 00:
And not only that, he brought his loaded firearm, pulled it out of his waist, put it on the table in front of the teachers.

[00:23:24] Speaker 00:
That was sufficient to charge and prosecute for terroristic threatening.

[00:23:29] Speaker 00:
A single piece of paper

[00:23:31] Speaker 00:
without any other accompanying conduct.

[00:23:33] Speaker 02:
You have an upset mother of one of the people that's there demanding that she be arrested.

[00:23:40] Speaker 02:
You've got all this fury with all, the parents are all necessarily upset.

[00:23:48] Speaker 02:
One, because she believes her daughter's been threatened.

[00:23:52] Speaker 02:
The other, because her daughter is the subject of this.

[00:23:55] Speaker 02:
I think there was some discussions about when an apology wasn't accepted and some ranch dressing got thrown on stuff and then possibly a slap, which I think I believe NB denied, but somewhere there was a slap in all of this.

[00:24:14] Speaker 02:
So why can't they just get the child away

[00:24:21] Speaker 02:
from everyone else, figure out what happened, and then when they decide, OK, I think we've calmed the situation down and let her go, why don't the officers have a decent argument about we could arrest her and take her and maybe not such a decent argument about handcuffing a 10-year-old in the back of the car?

[00:24:47] Speaker 02:
Aren't they distinct arguments?

[00:24:49] Speaker 00:
They are distinct arguments, and I would agree with this court that on the excessive force claim, you know, CB versus City of Sonora clearly establishes that you cannot use handcuffs on a calm and compliant 10-year-old or 11-year-old.

[00:25:05] Speaker 00:
And of course, also Judge Hurwitz's decision in Scott versus County of San Bernardino clarifies that you can't make an arrest to prove a point to minors.

[00:25:17] Speaker 00:
And that's exactly what is alleged here, because it's not just the threat that motivated the arrest in this case.

[00:25:25] Speaker 00:
NB made statements to the nurse about wondering what it would like to spend a night in jail.

[00:25:32] Speaker 00:
After that statement was conveyed to the officers, they said that she was treating the situation like a joke.

[00:25:39] Speaker 00:
And as she was being arrested, one of the officers said to the other,

[00:25:44] Speaker 00:
Oh, so she wanted to see what it would be like to spend a night in jail.

[00:25:48] Speaker 00:
That shows that this arrest was not based on any actual real threat.

[00:25:53] Speaker 00:
It was the officers trying to teach Enby a lesson.

[00:25:57] Speaker 02:
And the Scott versus... Or they could think that she might be more capable of doing it.

[00:26:02] Speaker 02:
That's another way that you could look at it too.

[00:26:06] Speaker 02:
That she just doesn't care.

[00:26:07] Speaker 02:
She doesn't think it's a big deal.

[00:26:08] Speaker 02:
She's not afraid of authority.

[00:26:11] Speaker 02:
And if they had been convinced showing up, OK, she's a pretty compliant kid.

[00:26:18] Speaker 02:
She seems to be afraid of authority, as opposed to a 10-year-old that could give a hoot about anything.

[00:26:26] Speaker 02:
And anyone that's had a 10-year-old child doesn't usually think they're that rational.

[00:26:31] Speaker 02:
And so if they feel like they don't care about the consequences of anything, that they really might hurt someone.

[00:26:37] Speaker 02:
Couldn't you look at it that way?

[00:26:38] Speaker 00:
I don't think you can rely on a single piece of paper to conclude that a true threat exists, because again... Well, you can.

[00:26:47] Speaker 01:
You're arguing that you can't rely on this piece of paper.

[00:26:51] Speaker 01:
I mean, surely if you sent me a note right now that said, Judge, as you leave the bench today, I'm going to hit you over the head with a hammer and kill you.

[00:27:01] Speaker 02:
Your days are numbered.

[00:27:03] Speaker 01:
That piece of paper would suffice, I think, to at least give me some reason to think there was a true threat.

[00:27:09] Speaker 01:
It's not that it's a piece of paper.

[00:27:11] Speaker 01:
Your argument is that it's a piece of paper drawn by a 10-year-old.

[00:27:14] Speaker 00:
Drawn by a 10-year-old in the context of a school squabble over boyfriends and involving the pouring of ranch dressing.

[00:27:21] Speaker 00:
And the only case that the parties have raised that involves a threatening drawing is actually a case that we did not rely on.

[00:27:29] Speaker 00:
It's Porter versus Ascension Parish School Board.

[00:27:33] Speaker 00:
That case involved a threatening drawing

[00:27:37] Speaker 00:
And even though appellants rely on the case, the court actually concluded that the drawing was protected by the First Amendment.

[00:27:43] Speaker 00:
Now, we don't have a First Amendment claim here, but the point is, a drawing by itself, you know, there are a lot of reasons why we should be very careful or why this court should be careful.

[00:27:54] Speaker 01:
Everything you're saying makes sense to me.

[00:27:57] Speaker 01:
But we're under a qualified immunity regime.

[00:28:00] Speaker 01:
which tells us, first of all, all the officers have to have his probable cause, and that's something less than what is required to convict.

[00:28:09] Speaker 01:
And second, there's got to be some case relatively close on the facts that alerts them to the fact that they don't have probable cause.

[00:28:19] Speaker 01:
And it's that second one that I'm having great difficulty with, given the fact that the Supreme Court routinely slaps us around when we don't have a case

[00:28:28] Speaker 01:
closely on point, and they say you're reasoning from generalities.

[00:28:32] Speaker 01:
So what, again, what's your best case on prior law on the arrest, not the excessive force claim?

[00:28:43] Speaker 00:
I think, again, we're going maybe too specific.

[00:28:47] Speaker 00:
And here, what we're talking about is the right of a arrestee not to be arrested without the officers having probable cause as to the intent to terrorize

[00:28:58] Speaker 00:
and as to the drawing being a true threat, and Gashow establishes that they needed to have probable cause as to Enby's intent.

[00:29:10] Speaker 00:
Part of the problem here, of course, is that as the panel has noted, we are here purely based on the allegations in the complaint, and

[00:29:20] Speaker 00:
These questions about what the officers knew and when, those are highly factual questions.

[00:29:26] Speaker 00:
And that makes it kind of difficult to sort of speculate about what they knew or didn't know.

[00:29:32] Speaker 01:
This leads me to the question that you can't answer, but I want to pose it to you as I pose it to opposing counsel.

[00:29:39] Speaker 01:
You've got a summary judgment motion pending.

[00:29:42] Speaker 01:
We'll have a ruling at some point from the district court based on the actual record.

[00:29:48] Speaker 01:
Why should we proceed today?

[00:29:51] Speaker 00:
This court doesn't need to proceed today.

[00:29:53] Speaker 01:
I know, but I'm asking you why you think we should.

[00:29:57] Speaker 03:
You objected to putting it over after arguing the case was moot.

[00:30:00] Speaker 00:
Understood.

[00:30:01] Speaker 00:
I can explain that.

[00:30:01] Speaker 00:
Our clients want to proceed to trial.

[00:30:05] Speaker 00:
We want a resolution of this case.

[00:30:07] Speaker 00:
So early on, once we realized what

[00:30:11] Speaker 00:
issues the appellants were going to appeal.

[00:30:14] Speaker 00:
We moved to dismiss on the basis of mootness.

[00:30:16] Speaker 00:
But of course, much time has elapsed, things have evolved, and at this point, we recognize that this court's guidance could provide clarity and narrow some of the claims

[00:30:29] Speaker 00:
even though there is a third amended complaint.

[00:30:32] Speaker 02:
And for that reason, this- Well, and arguably, there's also the argument that once this was filed, that the district court maybe didn't even have jurisdiction to keep ticking along.

[00:30:43] Speaker 02:
I think if we find it wasn't prejudicial, then we could allow it to maintain its status.

[00:30:50] Speaker 02:
But I think the interlocutory appeal interrupts jurisdiction.

[00:30:57] Speaker 00:
I would disagree.

[00:31:00] Speaker 00:
I acknowledge that the Griggs divestiture principle is a principle.

[00:31:04] Speaker 00:
However, it clarifies that it only divests jurisdiction of the subject matter of the appeal.

[00:31:09] Speaker 00:
And here, the process of amending the complaint was not subject to the appeal and remained properly with the district court.

[00:31:19] Speaker 00:
And importantly here, the order at issue granted

[00:31:24] Speaker 00:
plaintiffs leave to amend the complaint.

[00:31:26] Speaker 00:
And that distinguishes this case from the other cases that appellants rely on to claim that this, uh, that the appeal... Correct me if I'm wrong.

[00:31:34] Speaker 02:
Then there was discovery.

[00:31:36] Speaker 02:
Then there's now the dispositive summary judgment motion.

[00:31:39] Speaker 02:
So this has just been going on like we don't exist, right?

[00:31:44] Speaker 00:
To some degree, to some degree, yes.

[00:31:46] Speaker 02:
And again, I think... I'm not insulted by that, but, uh, but the, uh, but it's...

[00:31:54] Speaker 02:
It's perplexing.

[00:31:55] Speaker 02:
I mean, I think that's why we all have so many questions of both of you.

[00:32:00] Speaker 02:
Sometimes you feel like you're deciding something, but everyone else knows more than you do.

[00:32:07] Speaker 00:
Right.

[00:32:08] Speaker 00:
So I see my time is expiring.

[00:32:10] Speaker 01:
Let me put this differently because I want to be clear so both sides understand this.

[00:32:16] Speaker 01:
The case is in front of us, and we can decide it.

[00:32:19] Speaker 01:
But your opponent asked us to defer it until summary judgment was disposed of.

[00:32:25] Speaker 01:
We turned down that motion, in part because you opposed it.

[00:32:29] Speaker 01:
And the reason I'm asking the question is, on sober reflection, you may decide that you really would rather wait until summary judgment.

[00:32:35] Speaker 01:
And if so, then you all can let us know.

[00:32:40] Speaker 00:
Understood.

[00:32:42] Speaker 00:
It sounds like this court is concerned about the false arrest claim more than the excessive force claim.

[00:32:48] Speaker 00:
And again, I would point to our briefing around true threat.

[00:32:53] Speaker 00:
the INRAE PP case, the state versus Valdivia case, and the state versus Chung case.

[00:32:59] Speaker 00:
And I think that will help clarify why this case is very different from other cases where terroristic threatening prosecutions have been filed.

[00:33:10] Speaker 00:
And unless the court has any further questions, I'll stop there.

[00:33:14] Speaker 02:
Thank you for your argument.

[00:33:15] Speaker 00:
Thank you.

[00:33:16] Speaker 02:
All right.

[00:33:16] Speaker 02:
You have three minutes for rebuttal.

[00:33:19] Speaker 04:
Thank you, Your Honor.

[00:33:20] Speaker 04:
I'd like to make one point because, like my friend, I think we're sensing that the Court has different opinions about sort of Count 1 and Count 2, so I'd like to address the one that's concerning... Well, you're all reading our minds that have not conferred with each other, so we'll see how, while you read minds.

[00:33:41] Speaker 04:
okay yes but anyways given the limited time of my rebuttal i'd like to just to go directly to the excessive force on the handcuffing

[00:33:51] Speaker 04:
If we're talking about minors, does that go up to age 18?

[00:33:54] Speaker 04:
Imagine this were consolidated cases from the two-year-old that you posited all the way up to 17 and a half.

[00:34:01] Speaker 04:
Many 17-year-olds, let's say, commit murders and sometimes are tried in adult court.

[00:34:06] Speaker 04:
So where is the clearly established law that says at what age, if you're making an arrest based on probable cause, you can't put handcuffs on?

[00:34:18] Speaker 04:
What case can

[00:34:20] Speaker 04:
can we look at that tells us there's a certain age where if you commit a crime, if you have probable cause to believe you committed a crime and you're under arrest, that you can't put handcuffs on.

[00:34:31] Speaker 04:
Is it 11?

[00:34:32] Speaker 04:
Is it 12?

[00:34:33] Speaker 04:
Is it 14?

[00:34:34] Speaker 04:
Is it 16?

[00:34:35] Speaker 04:
Imagine we had consolidated cases here, one for every year from 2 to 18.

[00:34:40] Speaker 04:
Where would the court draw the line on that in terms of when you cannot put routine handcuffing

[00:34:45] Speaker 04:
on a minor, someone who's 18 years or younger.

[00:34:48] Speaker 02:
Well, we do have a case here, though.

[00:34:50] Speaker 02:
And as opposed to the arrest component, there is the, what is it, City of Sonora.

[00:34:58] Speaker 02:
We do have that case that gives some guidance that arguably we don't have a case on the arrest part of it.

[00:35:08] Speaker 02:
I mean, the City of Sonora does stand for things that are

[00:35:16] Speaker 02:
involved in this case on the excessive force.

[00:35:18] Speaker 02:
It is a case that touches on this.

[00:35:23] Speaker 04:
It's at a school and it's an age, but it doesn't touch upon it in terms of the qualified immunity analysis.

[00:35:32] Speaker 04:
The recent Supreme Court cases say it has to squarely govern, and they weren't dealing in that case with police arresting someone based on probable cause.

[00:35:42] Speaker 04:
and threatening behavior.

[00:35:44] Speaker 04:
That's not in that case.

[00:35:45] Speaker 04:
So that case doesn't squarely govern.

[00:35:47] Speaker 04:
It doesn't satisfy the demanding test of the Supreme Court.

[00:35:51] Speaker 03:
So your argument is that, I guess, the only way that we could find no qualified immunity here is by saying that this is just an exception, that this is just on its face.

[00:36:03] Speaker 03:
Anybody would know that you can't put handcuffs on a 10-year-old, not that CB clearly establishes that.

[00:36:11] Speaker 04:
I agree with that, Judge Thomas, and it has to fall into that very narrow range of obvious.

[00:36:18] Speaker 04:
They found it in CB versus Sonora, but there have been cases since then, and my 28-J letter cites it, that Sonora has been interpreted in a limited way, and it doesn't apply when there's arrest, probable cause to arrest and threatening behavior.

[00:36:34] Speaker 04:
So we have the Garcia case, and it cites Wade and everything.

[00:36:37] Speaker 04:
And Wade has all of those standards that the Ninth Circuit is supposed to follow, those

[00:36:41] Speaker 04:
those Supreme Court standards, which are kind of newer than the Hope versus Pelzer, which is much more forgiving in terms of qualified immunity and that appellees rely on.

[00:36:56] Speaker 04:
The case has to squarely govern.

[00:36:59] Speaker 04:
It's only those who knowingly violate the law or a completely incompetent police officer.

[00:37:06] Speaker 04:
I don't think Officer Nebes was either.

[00:37:09] Speaker 04:
I mean, there aren't allegations that show any of those.

[00:37:14] Speaker 04:
I will also point out that there's no allegations of all of my friends' arguments about what happened on the day before in ranch dressing.

[00:37:21] Speaker 04:
There's no allegations that the officers had any knowledge of that, that they were told that.

[00:37:28] Speaker 02:
I don't think we appear to have any additional questions, so this matter will be submitted.

[00:37:33] Speaker 02:
Thank you both for your argument in this matter.

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

[00:37:38] Speaker 02:
This court is in recess for the week.

[00:37:42] Speaker 02:
Thank you.

[00:37:44] Speaker 04:
Keep going.