[00:00:47] Speaker 04:
Good morning, Your Honor.

[00:00:48] Speaker 04:
May it please the Court, Stacey Plotkin-Wolf on behalf of Appellants, Defendants, Andrew Murrow and Louis Maggi.

[00:00:55] Speaker 04:
We ask that the court reverse the district court's denial of qualified immunity and grant qualified immunity on the first prong, finding that there was probable cause, or on the second prong, finding that the law was not clearly established.

[00:01:12] Speaker 04:
I'm going to reserve two minutes for rebuttal, please.

[00:01:18] Speaker 04:
I'll start with prong two.

[00:01:20] Speaker 04:
There were four errors in the district court's analysis of the second prong of the qualified immunity analysis.

[00:01:30] Speaker 04:
Initially, the court said that since there was no probable cause under the first prong, that there could not be qualified immunity.

[00:01:38] Speaker 04:
The Supreme Court has already done away with that argument in Hunter versus Bryant.

[00:01:45] Speaker 04:
In Hunter versus Bryant, the court said that by saying such, it puts immunity in the hands of the jury, which is improper and should be decided by a court long before a trial.

[00:01:59] Speaker 04:
The court said that by doing so, the court should be asking whether the act, whether that was act, the officers were acting under settled law, not if there was another reasonable

[00:02:15] Speaker 04:
or more reasonable interpretation that could be constructed years later.

[00:02:19] Speaker 04:
The second error by the district court was whether the court defined the law at too high a general, too high, too, excuse me.

[00:02:35] Speaker 04:
to high level of generality, which the court did here.

[00:02:39] Speaker 04:
If we look at the district court's order, the district court ruled basically that it's clearly established that arresting somebody without probable cause is a violation of the Fourth Amendment.

[00:02:55] Speaker 04:
And then the second part of this order was that it's clearly established that... Let me ask you a couple of questions.

[00:03:02] Speaker 00:
Yes, Your Honor.

[00:03:04] Speaker 00:
Okay, so I'm looking at the original dispatch report that all the officers got.

[00:03:09] Speaker 00:
There was testimony they all had it.

[00:03:11] Speaker 00:
It says Leslie Allen, who was Mr. Silva's mom, she's requesting PERT, which is the Psychiatric Emergency Response Team, son Paul Silva,

[00:03:26] Speaker 00:
39 years old, 250 pounds, you know, what he's wearing, no weapons, no 647 F that's no public intoxication, right?

[00:03:35] Speaker 00:
No 11 550 that's under or use of control substance, right?

[00:03:39] Speaker 00:
That's what it says.

[00:03:40] Speaker 00:
Diagnosed schizophrenic should be on meds, but reporting party thinks he's off them is outside yelling and screaming per reporting party.

[00:03:50] Speaker 00:
Silva is cooperative when PD called in past.

[00:03:53] Speaker 00:
So that's the information they had, right?

[00:03:55] Speaker 00:
No 647F, no 11550, right?

[00:03:59] Speaker 00:
Psychiatric, not on meds, right?

[00:04:02] Speaker 00:
That's what they got.

[00:04:03] Speaker 00:
Okay.

[00:04:04] Speaker 00:
So then when we go to what information did they have about whether he was on, separate from what Mr. Silva said, he repeatedly said he hadn't, but

[00:04:16] Speaker 00:
Let's look at what the officer says.

[00:04:18] Speaker 00:
Alan said, um, so when they S this is officer Magi, uh, yeah.

[00:04:25] Speaker 00:
Um, yeah.

[00:04:25] Speaker 00:
Yeah.

[00:04:26] Speaker 00:
Put him over there.

[00:04:26] Speaker 00:
Did she say when the last time he smoked was Dorisio?

[00:04:31] Speaker 00:
Oh, she doesn't know.

[00:04:32] Speaker 00:
She know that it's been recently.

[00:04:36] Speaker 00:
So there's no, and then there's no understanding of what recently means, right?

[00:04:43] Speaker 00:
There's other testimony from Derisio where he says, you know, she doesn't know.

[00:04:48] Speaker 00:
So if she is the source of the recent use, she didn't even define recently because she didn't know what recently was, correct?

[00:04:56] Speaker 00:
Yes.

[00:04:57] Speaker 00:
Okay.

[00:04:58] Speaker 00:
All right.

[00:04:58] Speaker 00:
Then let's look at the tests, right?

[00:05:01] Speaker 00:
So the officer Moro says, well, he had horizontal gaze nystagmus.

[00:05:07] Speaker 00:
But in the training manual, it says that that is not present in people who are on stimulants, right?

[00:05:14] Speaker 00:
Yes.

[00:05:15] Speaker 00:
But Mr. Silva had that, correct?

[00:05:17] Speaker 00:
Yes.

[00:05:17] Speaker 00:
Okay.

[00:05:19] Speaker 00:
On pupil size, if you're on stimulants, your pupils are dilated, but Mr. Silva's were constricted, correct?

[00:05:25] Speaker 04:
Yes, generally.

[00:05:27] Speaker 00:
Okay.

[00:05:28] Speaker 00:
Well, let's say it's only constricted if you have chronic use, right?

[00:05:33] Speaker 00:
Is that why you're qualifying it with generally?

[00:05:35] Speaker 00:
Okay.

[00:05:36] Speaker 00:
But if you have a chronic user, you're very rail thin.

[00:05:39] Speaker 00:
You've got pockmarked skin.

[00:05:41] Speaker 00:
You often have those really, uh, dissolved and black teeth.

[00:05:45] Speaker 00:
He didn't have any of that, right?

[00:05:46] Speaker 00:
He was 250 pounds.

[00:05:47] Speaker 00:
He was a big guy.

[00:05:48] Speaker 00:
Correct.

[00:05:49] Speaker 04:
Yeah.

[00:05:49] Speaker 04:
Okay.

[00:05:50] Speaker 00:
So he didn't have any of the physical symptoms of chronic user, right?

[00:05:55] Speaker 00:
Okay.

[00:05:56] Speaker 00:
All right.

[00:05:56] Speaker 00:
So his pulse rate was elevated, right?

[00:05:59] Speaker 00:
That's, that's correct.

[00:06:01] Speaker 00:
His mom did say multiple times.

[00:06:04] Speaker 00:
He's scared of the police.

[00:06:05] Speaker 00:
And when you watch the video, he says so many times, please don't hurt me.

[00:06:08] Speaker 00:
Please don't hurt me.

[00:06:09] Speaker 00:
Correct.

[00:06:10] Speaker 04:
Yes.

[00:06:10] Speaker 04:
Near the end.

[00:06:11] Speaker 00:
Yeah.

[00:06:12] Speaker 00:
So, um, and then on the Romberg test, trying to guess up to 30 seconds, he was fast on that from the video, but that's also consistent with schizophrenia, correct?

[00:06:23] Speaker 04:
Yes.

[00:06:23] Speaker 00:
Okay.

[00:06:24] Speaker 00:
All right.

[00:06:24] Speaker 00:
Let's look at the declaration that officer Murrow submitted in support of, um, the summary judgment motion.

[00:06:32] Speaker 00:
I'm looking at paragraph 25, I'm just gonna read it.

[00:06:35] Speaker 00:
I decided to detain decedent to investigate if he was under the influence of a controlled substance in violation of California Health and Safety Code section 11-550, or if met the criteria for being detained and taken into custody under California Welfare Institutions Code section 51-50.

[00:06:53] Speaker 00:
Now 51-50, that's the mental health one, correct?

[00:06:55] Speaker 00:
That's the reason that they got called, right?

[00:06:59] Speaker 00:
They thought this was gonna be a 51-50,

[00:07:01] Speaker 00:
Mental hold if you're gonna hurt yourself or hurt somebody else potentially.

[00:07:05] Speaker 00:
Okay, and he says because of the observations I made and decedent's admission that he was in possession of drug paraphernalia and that drug paraphernalia is the marijuana pipe, correct?

[00:07:18] Speaker 00:
Yes.

[00:07:18] Speaker 00:
Okay, but that's not a crime in California to have a possessive marijuana pipe, correct?

[00:07:24] Speaker 04:
No, but it's an indicia usually from officers that there could be other drug use going on.

[00:07:30] Speaker 00:
Right, but he said that, well, let's talk about that, because that'll come up.

[00:07:36] Speaker 00:
But marijuana pipe is not considered drug paraphernalia under California law, correct?

[00:07:47] Speaker 04:
Is that correct?

[00:07:47] Speaker 04:
It's not, but officers are also trained that when people are using something like marijuana, they are often using other types of drugs.

[00:07:55] Speaker 00:
So if I possess a marijuana pipe, does that mean you can detain me or arrest me for 11-5-50?

[00:08:01] Speaker 00:
Because a marijuana pipe, which is not a crime in California, is not considered drug paraphernalia, still means that that's

[00:08:10] Speaker 04:
Of course not, but that's not all that was going on here, because they also had him detained for an evaluation under 5150, and under the totality of the circumstances with the other things.

[00:08:21] Speaker 00:
But they didn't take him in on 5150.

[00:08:23] Speaker 00:
They arrested him for 11-5-50.

[00:08:24] Speaker 00:
They arrested him for a crime, right?

[00:08:26] Speaker 00:
5150 is civil.

[00:08:29] Speaker 00:
That's not a criminal incarceration, right?

[00:08:31] Speaker 04:
No, but they still need to have probable cause and they were still investigating both.

[00:08:36] Speaker 04:
So at the time that they were investigating the 11-5-50, they were also investigating the 51-50.

[00:08:45] Speaker 04:
So under the totality of the circumstances when they were seeing

[00:08:48] Speaker 04:
his behavior, the way he was presenting himself, his disheveled appearance, the dry tongue.

[00:08:54] Speaker 00:
Can I ask you something?

[00:08:56] Speaker 00:
So he has in his paragraph 13 something very similar to what you just said.

[00:09:00] Speaker 00:
It says, it has been my experience that prior use of narcotics and possession of drug paraphernalia are factors that are strongly related to possible present intoxication of controlled substances.

[00:09:11] Speaker 00:
But under California law, the marijuana pipe is not

[00:09:14] Speaker 00:
drug paraphernalia, correct?

[00:09:16] Speaker 00:
So what was he referring to?

[00:09:17] Speaker 00:
What is a drug paraphernalia that Mr. Silva possessed that was the evidence of current 11-5-50 use of a controlled substance?

[00:09:26] Speaker 04:
I cannot tell you what was in his head.

[00:09:29] Speaker 01:
Please speak into the microphone.

[00:09:30] Speaker 04:
I'm sorry, Your Honor, yes.

[00:09:32] Speaker 04:
I can't tell you what was in Officer Murrow's head as I'm standing here today.

[00:09:37] Speaker 00:
I can tell you he was taking... But there was no other drug paraphernalia or what was thought to be a drug paraphernalia than the marijuana pipe, correct?

[00:09:44] Speaker 00:
As far as I know, no.

[00:09:46] Speaker 00:
Is there anything in the record that says there was other drug paraphernalia other than a marijuana pipe, which is not actually drug paraphernalia under California law?

[00:09:55] Speaker 04:
No, Your Honor, but it really doesn't matter under the second prong of the qualified immunity analysis, because when you take everything else, the totality of the circumstances when they were doing an evaluation, all of which, most of which they would have had to do under the 5150 analysis to determine if he was a danger to himself or a danger to others or gravely disabled,

[00:10:16] Speaker 04:
they would have made a lot of the same findings and would have came to the same conclusion, especially after Officer Murrow was told that there was recent use.

[00:10:28] Speaker 00:
So what was the evidence that excluded a conclusion that 5150 was appropriate?

[00:10:37] Speaker 00:
What is the evidence?

[00:10:38] Speaker 04:
That it was not appropriate?

[00:10:40] Speaker 00:
Right, if you're saying they were really looking at this as a 5150, what is the evidence that this was not a 5150 and was a use?

[00:10:49] Speaker 04:
There was no indication as the officers were there that he was a danger to himself, a danger to others, or that he was gravely disabled.

[00:10:58] Speaker 04:
While they were there, he was not threatening anybody.

[00:11:01] Speaker 04:
He was not suicidal.

[00:11:02] Speaker 00:
So the fact that his mother locked herself up in her car because she's afraid of him,

[00:11:07] Speaker 00:
And said, you need to please get Pert to take him in?

[00:11:12] Speaker 00:
Was it not a concern that reporting party was so afraid of him that she locked herself in her car to be protected from her own son?

[00:11:21] Speaker 04:
Of course it was a concern and part of the evidence, but the officers couldn't take everything that she said at face value they're required under the law.

[00:11:30] Speaker 04:
to do an independent investigation, and that included talking to Mr. Silva.

[00:11:36] Speaker 04:
And in their conversations with him and their evaluation of him, he wasn't doing anything that appeared to be a danger to others.

[00:11:44] Speaker 04:
He wasn't threatening anybody.

[00:11:45] Speaker 04:
He wasn't saying that he was going to hurt himself.

[00:11:49] Speaker 04:
And they knew that he had shelter.

[00:11:51] Speaker 04:
He was clearly able to feed himself.

[00:11:53] Speaker 04:
And other than the odd shirt he was wearing, he was able to wear clothing.

[00:11:59] Speaker 00:
Three jackets, right?

[00:12:00] Speaker 00:
He was wearing two jackets and he's wearing a tiny women's leopard skin sweater underneath.

[00:12:08] Speaker 00:
And he's carrying around all these garbage bags and he's carrying around broken glass in his pocket.

[00:12:13] Speaker 00:
And he's saying, give my mom a ticket because she's not listening to me.

[00:12:17] Speaker 00:
And he's saying all these very odd things about needing to go to the recycling center and needing to return a book at the library.

[00:12:26] Speaker 04:
Nobody questioned that he was mentally ill, but that's not the standard for taking somebody in under Welfare and Institutions Code 5150.

[00:12:39] Speaker 04:
5150 says, you have to not only be mentally ill, but you also have to be a danger to yourself, a danger to others, or gravely disabled.

[00:12:47] Speaker 04:
And he just did not meet those qualifications, those other criteria.

[00:12:54] Speaker 04:
But they did feel, after evaluating him and hearing that he had a recent use, that there was reason to take him in for an 11-5-50.

[00:13:03] Speaker 00:
And none of the officers could define what the definition of recent was in the recent use

[00:13:09] Speaker 00:
statement, correct?

[00:13:10] Speaker 00:
Even the mother who was supposed to be the source of that statement could not define what recent was, right?

[00:13:17] Speaker 04:
I do not understand.

[00:13:18] Speaker 04:
I understand that it was not asked, so no.

[00:13:21] Speaker 00:
Okay, and you would agree watching the video that Mr. Silva was very calm and cooperative with the police.

[00:13:29] Speaker 00:
Yes.

[00:13:29] Speaker 00:
At least when he spoke to them.

[00:13:31] Speaker 04:
For the most part, yes.

[00:13:32] Speaker 04:
I mean, he was talking very quickly.

[00:13:34] Speaker 04:
He was rambling.

[00:13:35] Speaker 04:
He was, as you said, under the Romberg.

[00:13:37] Speaker 04:
He was

[00:13:39] Speaker 04:
It took him four seconds to get to 30 seconds.

[00:13:41] Speaker 00:
That's all consistent with schizophrenia, which is what was the basis for the reporting person's request that the police come, correct?

[00:13:48] Speaker 04:
Yes, but officers cannot be expected to be able to differentiate the difference between schizophrenia and being under the influence, even

[00:13:56] Speaker 04:
the plaintiff or the appellee's expert said that they, that medically trained people often can't tell the difference.

[00:14:05] Speaker 00:
But there was no emergency here, right?

[00:14:07] Speaker 00:
There was no need to make a split second decision.

[00:14:09] Speaker 00:
Nobody's life, as you said, nobody's life was in, this was a slow investigation.

[00:14:14] Speaker 00:
They could have taken their time to figure out which one was more appropriate, right?

[00:14:19] Speaker 04:
They did take their time.

[00:14:20] Speaker 04:
They were there for quite a, quite a length of time.

[00:14:23] Speaker 04:
And they clearly knew that there was not

[00:14:27] Speaker 04:
It was eight minutes, right?

[00:14:29] Speaker 00:
It was eight minutes.

[00:14:34] Speaker 00:
By the time they decided to arrest him and take him in the car.

[00:14:37] Speaker 04:
They did a thorough evaluation.

[00:14:39] Speaker 04:
They knew that he was not

[00:14:41] Speaker 04:
the criteria for 5150 was not applicable.

[00:14:45] Speaker 04:
And under the law that existed at the time, there was nothing that told them that they could not arrest him at that time.

[00:14:53] Speaker 04:
There was no clue.

[00:14:54] Speaker 00:
But it does seem clear, at least from Officer Morrow's declaration, the drug paraphernalia was an important part of why they said 11550, right?

[00:15:04] Speaker 00:
I mean, that's what he says.

[00:15:05] Speaker 00:
He says, my observations and the fact that he had a pipe

[00:15:10] Speaker 00:
That's the two reasons, because the observations I made and decedent's admission that he was in possession of drug paraphernalia.

[00:15:18] Speaker 00:
That's why I decided to detain him.

[00:15:21] Speaker 04:
the observations he made in addition to the drug paraphernalia.

[00:15:25] Speaker 04:
The observations that he made were consistent with somebody who was under the influence as well, which was the disabled, his bad breath, the body odor, the dry mouth, the fact that he sounded like he had a very dry mouth, and Mr. Silva's very strange

[00:15:43] Speaker 04:
explanation that he just had a sore throat and then the how the mother the mother also said look he's office meds he's been running around all night you see him wearing three jackets including a leopard print women's tiny sweater that might make you smell bad and be sweaty right yes and that's part of the reason that they took the jackets off to see if he would stop sweating but he didn't and his heart rate was still up and

[00:16:11] Speaker 04:
And it continued to be up even after they took him to the station.

[00:16:15] Speaker 04:
It did come down a bit, but it was still up.

[00:16:18] Speaker 04:
And that is consistent with somebody under the influence of a central nervous system stimulant.

[00:16:26] Speaker 04:
The officers here under the second prong did not have a

[00:16:34] Speaker 00:
90 minutes later, his pulse rate dropped to 61 beats per minute, right?

[00:16:38] Speaker 04:
I am sorry.

[00:16:38] Speaker 04:
I'm almost out of time, but you're correct.

[00:16:43] Speaker 04:
Here, there was not clearly established law that would put anybody but the, that would put these officers on notice that arresting him was clearly improper under these circumstances.

[00:16:57] Speaker 03:
So you do your time, but you had a lot of questions, so we'll give you one minute for rebuttal.

[00:17:01] Speaker 04:
Thank you, Your Honor.

[00:17:20] Speaker 02:
I need to say a couple of things at the beginning.

[00:17:25] Speaker 02:
The officers in this case were called upon to make a decision, and it had very significant consequences in this case.

[00:17:38] Speaker 02:
They were asked by the decedent's mother in this case to please take him to the mental hospital to please help.

[00:17:49] Speaker 02:
She explained that this had happened in the past, that the PERT team had assisted him.

[00:17:58] Speaker 02:
He went into the hospital for the 72-hour period, was put back on his medication,

[00:18:06] Speaker 02:
and everything was fine.

[00:18:09] Speaker 02:
She made repeated calls and it was, she made a call the day before, on the 19th there was no PERT team.

[00:18:18] Speaker 02:
She called again asking for help on the 20th.

[00:18:23] Speaker 02:
And she was waiting between the first call and the last call almost three hours.

[00:18:31] Speaker 02:
She explained that her son was in grave danger of harming himself.

[00:18:38] Speaker 02:
He was roaming into the neighbor's yards.

[00:18:41] Speaker 02:
He had started a fire between two cars in the street.

[00:18:46] Speaker 02:
And he was running in the traffic and endangering his own life.

[00:18:51] Speaker 02:
The officers never quarreled with those assertions.

[00:18:57] Speaker 02:
They never quarreled with the fact that in the previous evaluation, the officers had taken him in under 5150 for evaluation and for help.

[00:19:11] Speaker 03:
The question I have is, would the officers have received all of those details?

[00:19:15] Speaker 03:
Because I presume that she told that to the dispatch, and the dispatch probably told the officers it's a perp.

[00:19:20] Speaker 03:
But would they have had all those details?

[00:19:22] Speaker 02:
I want to make sure I'm not answering you to whore the record that we have, but I believe you will see

[00:19:30] Speaker 02:
Judge Lee, that in the record, the printout that is provided is the same as that which the officers have on their computers when they answer the call.

[00:19:42] Speaker 02:
And the answer would be yes, that it is, albeit in summary form, all available there to them.

[00:19:53] Speaker 02:
In addition, they would have been updated by their own dispatch as to that information.

[00:20:03] Speaker 03:
Can you address the second prong, the clearly established here?

[00:20:09] Speaker 03:
I mean, the district court opinion was very cursory.

[00:20:12] Speaker 03:
I think two paragraphs really didn't discuss it.

[00:20:14] Speaker 03:
And that's always in qualified immunity cases.

[00:20:16] Speaker 03:
That's always the tough part of, is there a clearly established law here?

[00:20:21] Speaker 02:
Let me, if I could, answer your question with three specific answers.

[00:20:26] Speaker 02:
With respect to cursory, and I wanted to advert to our first argument, which is essentially, given the nature of the briefing and the argument which this Court has heard, there is not legitimate jurisdiction for an interlocutory appeal.

[00:20:43] Speaker 02:
Because, and what we did in our brief in that regard, and the reason why I balk a little when you say cursory, Your Honor, with respect to the factual analysis, it was elaborate, precise, the factual findings that were made by the district court in light of the proper

[00:21:03] Speaker 02:
standard for summary judgment, that is, in the light most favorable to the nonmoving party, are lengthy.

[00:21:10] Speaker 02:
I think they go on for five or six pages on this issue.

[00:21:14] Speaker 02:
In our brief, what we did is to put the factual assertions in the appellants brief

[00:21:20] Speaker 02:
right across from the findings.

[00:21:23] Speaker 03:
Let's assume we accept your version of the facts, and then, you know, is there an analogous case law that clearly establishes this?

[00:21:29] Speaker 02:
Correct.

[00:21:31] Speaker 02:
Yes.

[00:21:32] Speaker 02:
We cited the state court case of Dunkle, D-U-N-K-E-L, as well as, and you will find these cases cited on pages of 52 through 56 of our brief,

[00:21:47] Speaker 02:
multiple cases, including federal cases.

[00:21:51] Speaker 02:
Now, and in answer to your question, Judge Lee, of course, the issue is always the degree of factual similarity or specificity.

[00:22:01] Speaker 02:
And so if you ask me,

[00:22:03] Speaker 02:
Do you have a case in which somebody's mother said they'd been previously brought in for an evaluation under 5150 and these facts pertain?

[00:22:13] Speaker 02:
I would have to tell you no.

[00:22:15] Speaker 02:
But there are multiple cases when there are some in physical symptoms that would be consistent with either a medical or psychiatric condition.

[00:22:27] Speaker 02:
and being under the influence, and the courts have repeatedly said if there is a plausible explanation that can be made physically, the officer does not have probable cause.

[00:22:41] Speaker 02:
For instance,

[00:22:42] Speaker 02:
there is a, I believe it's a circuit case for me to this.

[00:22:46] Speaker 03:
But set aside the problem of cause, because I think I agree with you.

[00:22:49] Speaker 02:
Well that's when there's a qualified immunity issue though.

[00:22:52] Speaker 03:
On the first problem, it's a second problem, because I agree, given what the officers had, the presumption should have been, he's suffering a psychiatric breakdown, and that should have been, you know, where, really, how they investigated it, that should have been the presumption.

[00:23:09] Speaker 03:
But now on the second prong is, in some ways, I mean, this is kind of the type of case qualified immunity applies, where an officer makes a mistake, no doubt a mistake, a very tragic mistake, but there are some conflicting symptoms, maybe on the objectively looking at it, probably suggests a psychiatric problem, but could also suggest a drug use.

[00:23:31] Speaker 03:
And we often, in a qualified immunity case, if there isn't a clear case, we'll give the better for the doubt.

[00:23:36] Speaker 02:
I don't know if I answered your question.

[00:23:38] Speaker 02:
I was going to say there were three things that we rely on.

[00:23:41] Speaker 02:
I specifically adverted to the cases cited in our brief.

[00:23:47] Speaker 02:
The second thing is under this court's decision in Drummond and many other cases, the officer's own training by his own department

[00:23:57] Speaker 02:
is sufficient to give him notice as to what are the elements of the offense and what the law requires.

[00:24:06] Speaker 02:
And in fact, counsel for these appellants specifically has in the record and submitted it to this court the training that these officers undergo

[00:24:18] Speaker 02:
they take training in psychiatric conditions because they're going to deal with those conditions repeatedly in their job and that material trained them on 5150 of the legal requirements.

[00:24:34] Speaker 02:
In addition, the

[00:24:37] Speaker 02:
Some of the materials that I believe Judge Koh was referring to in the colloquy that she had with counsel is derived from the specific learning domain in post police officer standards and training that all of these officers had.

[00:24:57] Speaker 02:
So my answer is that we rely on the case law.

[00:25:02] Speaker 02:
We rely on their own training experience.

[00:25:04] Speaker 03:
And the training can be, but it's not dispositive because, I mean,

[00:25:08] Speaker 03:
The training itself doesn't establish a constitutional requirement.

[00:25:11] Speaker 02:
There are good reasons why it doesn't, because we want to encourage police departments to voluntarily train people and have standards without making a constitutional... I appreciate that, but if the issue is, and I need here to talk about a case that we cited, it was written by Judge Baia, and I argued it 20 years ago.

[00:25:32] Speaker 02:
And I want to cite to it, it's the Lee versus Gregory case, 363 F3rd, 931.

[00:25:40] Speaker 02:
And it's a discussion of the qualified immunity issue in that on an arrest.

[00:25:49] Speaker 02:
And it's on pages 934, 935.

[00:25:51] Speaker 02:
And essentially, it says, what are we looking to?

[00:25:55] Speaker 02:
What does qualified immunity to arrest mean?

[00:25:59] Speaker 02:
We're really asking the question, wouldn't any reasonable officer, any reasonable person have understood that this action is illegal?

[00:26:11] Speaker 02:
I have a fourth answer, Your Honor, to your question regarding qualified immunity, which is this, that you as the reviewing court have to take as given the statements of fact that we have quoted verbatim from the district court.

[00:26:28] Speaker 02:
almost all of which in their brief they contradict or quibble with or argue against as the premise for the argument that they make to your others on qualified immunity which is why we say under Johnson versus Jones

[00:26:43] Speaker 02:
given the way they have quarreled with the findings of fact, asserting again and again their own version of facts.

[00:26:51] Speaker 00:
They do that in the opening, but they don't do that in the reply.

[00:26:54] Speaker 00:
So I think you might be better off spending your time elsewhere than continuing to fight this jurisdiction and disputing the facts question.

[00:27:02] Speaker 02:
Judge Cole, I will defer 100%.

[00:27:05] Speaker 00:
So I'm looking at Ramirez versus City of Buena Park.

[00:27:10] Speaker 00:
It's a Ninth Circuit 2009 case.

[00:27:12] Speaker 00:
They quote Lopez, which is another Ninth Circuit case, just saying, as a corollary of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.

[00:27:28] Speaker 00:
Therefore Ramirez's perfect performance of the finger to nose test is relevant when considering the importance of his alleged distorted time perception.

[00:27:38] Speaker 00:
So you can correct me if I'm wrong, but

[00:27:42] Speaker 00:
this seems to be saying you can't disregard facts tending

[00:27:45] Speaker 00:
to negate probable cause when you're determining whether there is probable cause.

[00:27:50] Speaker 02:
That is 100% right, and that was what the district court judge said and what he relied upon.

[00:27:57] Speaker 02:
And what I don't understand is the attack in their brief on the district court's findings, because if you read it, he's saying you have to look at the totality of the circumstance.

[00:28:08] Speaker 00:
But you have to address the reasonable mistake of fact.

[00:28:13] Speaker 00:
If a lot of these symptoms could be both evidence of a mental health crisis, but also could be, or some, consistent with drug use, then why isn't it a reasonable mistake of fact?

[00:28:27] Speaker 02:
Because reasonable mistake of fact requires competence.

[00:28:31] Speaker 02:
And I don't want to be derogatory because it's just not polite and it's not nice.

[00:28:38] Speaker 02:
But I will have to tell you what the evidence showed.

[00:28:42] Speaker 02:
Maggi, who was the supervising officer who approved this arrest and who participated in all of the events, Maggi said, well, I think if the eyes are dilated, well, either dilated or constricted is one of the two, then he may be under the influence.

[00:29:02] Speaker 02:
He didn't even know

[00:29:05] Speaker 02:
that.

[00:29:06] Speaker 02:
The evidence that is before the court with respect to the totality was such that it could reasonably exclude the possibility under their own training.

[00:29:20] Speaker 02:
What's the famous line that's always repeated in these cases again and again?

[00:29:25] Speaker 02:
Qualified immunity protects all but those who willfully violate the law or are plainly incompetent.

[00:29:33] Speaker 02:
And with respect to the decision to effect an arrest,

[00:29:38] Speaker 02:
And this, as I say, had tragic consequences, not just because it put him in jail, but because when Murrow booked him in the jail, he never told the jail medical people that this man has schizophrenia.

[00:29:54] Speaker 02:
So they left him in a cell.

[00:29:55] Speaker 02:
He decompensated.

[00:29:57] Speaker 02:
And 30 hours later, he's completely decompensated.

[00:30:01] Speaker 02:
They try to remove him from the cell to bring him to a hospital.

[00:30:06] Speaker 02:
And the consequence of that was the use of force, which resulted in his death.

[00:30:12] Speaker 01:
Marijuana pipe can be used to smoke anything.

[00:30:26] Speaker 01:
Including methamphetamine.

[00:30:28] Speaker 02:
Yes.

[00:30:28] Speaker 01:
Thank you.

[00:30:29] Speaker 02:
So I want to carefully and truthfully answer your question, but to say that there was no indication of any incrustation of any powder or anything on the marijuana.

[00:30:40] Speaker 01:
Second question.

[00:30:41] Speaker 01:
Did anybody ask Mrs. Silva what she meant by recently?

[00:30:45] Speaker 02:
Well, let me answer that question by saying the answer to that is no.

[00:30:50] Speaker 02:
And moreover, that is a disputed fact which they argued repeatedly and the district court judge did not rely on.

[00:30:58] Speaker 02:
Specifically, it's not Mrs. Silva, it's Mrs. Allen, but she's the mother.

[00:31:03] Speaker 02:
She testified, I never said that.

[00:31:06] Speaker 02:
And interestingly enough, although they submitted the body worn camera,

[00:31:10] Speaker 02:
there was no recording whether by audio or on body-worn camera of this alleged statement that she made which was entirely contradictory to her sworn deposition and contradictory to two or three separate statements that she made which were recorded in the telephone calls to the police department.

[00:31:33] Speaker 01:
Your position is an emotional summary judgment we should disregard

[00:31:37] Speaker 01:
what the policeman told each other about recently?

[00:31:41] Speaker 02:
The answer to that is no, because, but in the absence of any definition or explication of recent, it cannot legally be required or relied upon to justify it.

[00:31:58] Speaker 02:
DeRisio made the statement, and Ms.

[00:32:02] Speaker 02:
Allen said, I never said that.

[00:32:05] Speaker 02:
Now, I also need to say this.

[00:32:08] Speaker 02:
The police in this case, to my mind, are really getting away with something.

[00:32:15] Speaker 02:
The district court judge, they were named one of the three, or all three of them, in nine separate causes of action.

[00:32:22] Speaker 02:
The district court judge threw out everything except Murrow on the arrest and Maggi on the supervision.

[00:32:33] Speaker 02:
So when there's a suggestion, oh,

[00:32:37] Speaker 02:
And the district court judge just failed to do an analysis.

[00:32:43] Speaker 02:
He did a precise analysis, to my way of thinking, too scrupulous and, well,

[00:32:53] Speaker 02:
He was looking to help them out if they deserved a break.

[00:32:58] Speaker 02:
But on the issue of whether a reasonable person or any reasonable officer.

[00:33:03] Speaker 02:
And that's the fifth answer, Judge Lee, to the question that you put.

[00:33:09] Speaker 02:
What's the second prong?

[00:33:11] Speaker 02:
Let's address the second prong.

[00:33:13] Speaker 02:
Even in the absence of any case law.

[00:33:15] Speaker 02:
Some things are so clear that any reasonable person would understand that.

[00:33:22] Speaker 02:
Apropos of that, my point is when the totality of circumstances are such that not only do the physical symptoms not become consistent with being under the influence, but they rebut it so that, for instance... You've exceeded your time, so please wrap up.

[00:33:42] Speaker 02:
when somebody who's under the influence of a stimulant has flutter of the eyelids, and the video here says he had no flutter, when somebody who, as was pointed out in the colloquy, he had HGN, and that's inconsistent with somebody who is under the influence, and when somebody has dilated pupils

[00:34:10] Speaker 02:
or rather somebody has constricted pupils and methamphetamine makes them dilated and that's completely inconsistent when you have three of those telltale signs and they all say no he's not under the influence then somebody's either being very

[00:34:31] Speaker 02:
Cavalier about their job to avoid a long interview in the hospital or they're Incompetent in light of their trading.

[00:34:39] Speaker 02:
Thank you so much.

[00:34:40] Speaker 03:
Thank you

[00:35:00] Speaker 04:
The consequences of what happened here is not relevant to what's before the court.

[00:35:04] Speaker 04:
Also, the other causes of action that the judge dismissed are not relevant as to what's before the court.

[00:35:11] Speaker 04:
What's relevant here is that the district court did not do an appropriate

[00:35:16] Speaker 04:
evaluation of the second prong of qualified immunity.

[00:35:20] Speaker 04:
And there was no mandatory authority putting these officers on notice, and there's a conflict in the persuasive authority.

[00:35:28] Speaker 04:
The cases cited by plaintiffs do not stand for the proposition that they're asking this court to take.

[00:35:34] Speaker 04:
There are several cases on the other side of the issue.

[00:35:38] Speaker 04:
Recently, the California Court of Appeals said that one may be guilty of being under the influence of drugs in violation of Health and Safety Code, Section 11-550, by being in that state in any detectable manner.

[00:35:53] Speaker 04:
That's People versus Canty, 32, California, 4th, 1266.

[00:35:59] Speaker 04:
There are also two

[00:36:04] Speaker 04:
unpublished Ninth Circuit cases and two district court cases that show where people have some of the signs and symptoms of being under the influence, but not all of them, there was probable cause.

[00:36:19] Speaker 04:
The courts have established probable cause.

[00:36:22] Speaker 04:
There's no indication that there are cases putting all reasonable officers on notice, that their actions here would be unconstitutional.

[00:36:34] Speaker 04:
There's no indication that Mr. Silva was a habitual user that would have made them have to throw away some of their findings.

[00:36:43] Speaker 04:
These officers are clearly entitled to qualified immunity here, and they shouldn't be held to the same standards as a psychologist, a psychiatrist, or a toxicologist.

[00:36:53] Speaker 00:
Can I ask you a question?

[00:36:54] Speaker 00:
Earlier you had said that there was no evidence that

[00:36:59] Speaker 00:
Mr. Silva was a danger to himself or to others.

[00:37:03] Speaker 00:
And I'm looking at the police dispatch that the officers would have gotten on their computer.

[00:37:08] Speaker 00:
And it says subject is running between vehicles and into the street.

[00:37:12] Speaker 00:
It says male is heard yelling at female.

[00:37:15] Speaker 00:
Female is saying that male is getting violent.

[00:37:17] Speaker 00:
Male wants a ride.

[00:37:20] Speaker 00:
It says, you know, reporting party is going to stay locked in her car, Ford Expedition.

[00:37:26] Speaker 00:
It says reporting party has locked herself in her vehicle.

[00:37:30] Speaker 00:
And it just keeps going that, you know, diagnosed schizophrenic should be on meds or reporting party thinks he's off.

[00:37:36] Speaker 00:
He's outside yelling and screaming.

[00:37:39] Speaker 00:
Male is heard yelling at female, female saying that male is getting violent.

[00:37:43] Speaker 00:
Um, so at least that you would agree is in.

[00:37:47] Speaker 00:
the dispatch record that Officer Morrow would have been aware of, correct?

[00:37:52] Speaker 04:
Yes, and then the officers were required to do their independent investigation while they were there.

[00:37:57] Speaker 04:
He wasn't showing any of those signs and symptoms, but even if that was true, that would have given them probable cause to arrest him for starting those fires, for potentially assaulting his mother.

[00:38:10] Speaker 04:
So there would have been probable cause on those other grounds as well.

[00:38:17] Speaker 00:
You think there was probable cause to arrest him on all those other crimes, based on the record before us?

[00:38:24] Speaker 04:
If we're taking what Ms.

[00:38:26] Speaker 04:
Ellen said at face value, then yes.

[00:38:31] Speaker 03:
Thank you both for the helpful argument.

[00:38:33] Speaker 03:
The case has been submitted, and we're adjourned for the day.

[00:38:35] Speaker 04:
Thank you, Your Honor.