[00:00:00] Speaker 02:
Good morning, Your Honors.

[00:00:01] Speaker 02:
May it please the Court, Edmund Wang on behalf of Yvette Williams in the city and county of San Francisco.

[00:00:06] Speaker 02:
If I may, I would like to reserve three minutes for rebuttal.

[00:00:09] Speaker 05:
Sure.

[00:00:09] Speaker 05:
Mr. Wang, please speak into the microphone without fail.

[00:00:13] Speaker 02:
Yes, Your Honor.

[00:00:17] Speaker 02:
This case arises from Sergeant Williams's decision to place Plaintiff Vincent Bell into something called a safety cell.

[00:00:24] Speaker 02:
for being an imminent danger to the others, as well as the way that she had deputies get him from his cell into that safety cell.

[00:00:31] Speaker 02:
The first piece of the case, Sergeant Williams's decision to put Mr. Bell in that safety cell for being a danger to others is not

[00:00:41] Speaker 02:
an issue for repeal.

[00:00:43] Speaker 02:
Rather below, Mr. Bell had claimed that the decision to place him in the safety cell had violated the 14th Amendment and that she had done it as punishment and without any legitimate purpose.

[00:00:55] Speaker 02:
The jury rejected that claim.

[00:00:56] Speaker 05:
May I ask you this?

[00:00:57] Speaker 05:
Did Mr. Bell have questions?

[00:01:05] Speaker 02:
Mr. Bell did not have crutches.

[00:01:07] Speaker 02:
He had a prosthetic leg as well as a wheelchair that he had the use of in the jail.

[00:01:13] Speaker 05:
So they didn't provide him with crutches even though he only had one operative leg?

[00:01:20] Speaker 02:
As far as the record shows, what he had in his cell at the time was his prosthetic leg and his wheelchair.

[00:01:25] Speaker 02:
Whether he had crutches at other points in the jail, I don't know the answer to that, Your Honor.

[00:01:29] Speaker 05:
And did he have his prosthetic leg on when he was moved to the other cell?

[00:01:34] Speaker 05:
He did not, Your Honor.

[00:01:36] Speaker 00:
Why?

[00:01:36] Speaker 00:
Did they take it off?

[00:01:37] Speaker 00:
I have the same question.

[00:01:39] Speaker 00:
Did he take it off, which was a rule that he had to take it off to get moved, or did he just happen to not have it on?

[00:01:44] Speaker 02:
I believe at the time that he happened to not have it on at the time of this cell extraction.

[00:01:48] Speaker 05:
And they didn't put it on before they moved him?

[00:01:51] Speaker 02:
They did not, Your Honor.

[00:01:53] Speaker 00:
But they did take off a shoe?

[00:01:55] Speaker 02:
That I don't know that is not clear from the record I think mr. Bell testified that they took off his shoe But I don't have any other testimony from any of the deputies and it's not clear from the video whether that shoe was taken Off or whether it came off at some point Okay, anyway, you were trying to start by telling us about the decision.

[00:02:15] Speaker 00:
That's not on appeal Yes decision to move him to a safety cell the jury found no no liability and

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

[00:02:21] Speaker 00:
You want to move on to what we're here about?

[00:02:23] Speaker 02:
Yes.

[00:02:23] Speaker 02:
So the issues on our appeal all have to do with the way he was moved from that his cell to the safety cell.

[00:02:28] Speaker 02:
But I bring up the safety cell claim because that I think is important context to understand the errors that happened below.

[00:02:35] Speaker 02:
And I wanted to use my time to focus on three particular errors this morning, the first being the failure to instruct the jury on one of the elements of the ADA and the Rehabilitation Act claim.

[00:02:46] Speaker 02:
The second I would get to, given the time, is the error that the court made in finding that this case is one of those rare cases that fall within the narrow range of circumstances where a pattern of constitutional violations is not necessary to prove deliberate indifference for the failure to train claim.

[00:03:04] Speaker 02:
And the last one is the district court's error in finding that Sergeant Williams' conduct was prescribed by clearly established law.

[00:03:14] Speaker 04:
On that point, on your last point, I don't understand why we're even debating that.

[00:03:21] Speaker 04:
There's no question of individual liability for her, no damages were awarded against her.

[00:03:26] Speaker 04:
Why should we be arguing about qualified immunity for Sergeant Williams?

[00:03:29] Speaker 02:
There are two major reasons why we are bringing this up before this court.

[00:03:33] Speaker 02:
Number one is it is a legal error.

[00:03:36] Speaker 02:
We think that it does have certain consequences for- What's your second reason?

[00:03:39] Speaker 02:
The second reason is that there are practical consequences for the individual defendant to have a judgment.

[00:03:45] Speaker 02:
There may be no individual liability, nothing comes out of her pocket for this, but there is a judgment against her and it has practical consequences on perhaps her work, her personal life.

[00:03:54] Speaker 00:
To have a- So you prioritize this third and you want to talk about other matters first, is that right?

[00:03:59] Speaker 02:
Yes, your honor.

[00:04:00] Speaker 00:
I would suggest you do that.

[00:04:02] Speaker 02:
Thank you, your honor.

[00:04:03] Speaker 02:
So going to the first matter, which is the the district court's failure to instruct on one of the elements of the ADA claim.

[00:04:12] Speaker 02:
This circuit in the Pierce versus Orange County and the Gates v. Rowland case held that for an inmate or prisoner to be able to prove a claim that their rights under the ADA or the Rehabilitation Act have been violated.

[00:04:25] Speaker 02:
has to meet the Turner v. Safley reasonable relation test, meaning that they have to be able to prove that what was actually done, that the challenged action, policy, or practice did not reasonably relate to a legitimate interest here.

[00:04:41] Speaker 02:
This is a separate and distinct claim from having to prove that there is a reasonable

[00:04:46] Speaker 02:
accommodation that might exist, the plaintiff had to prove both these things, that what was actually done was unreasonable and didn't relate to a legitimate interest, but also, in addition to that, also proved that there were alternatives that would have also been reasonable.

[00:05:01] Speaker 02:
Both those things had to be proven by the plaintiff.

[00:05:03] Speaker 02:
The court did not instruct on one of those elements, and so drastically lowered that burden of proof.

[00:05:08] Speaker 04:
Would you agree that the jail policies allowed

[00:05:13] Speaker 04:
in fact, instructed the use of a wheelchair or gurney even with a non-disabled and non-compliant prisoner.

[00:05:23] Speaker 02:
Yes, Your Honor.

[00:05:23] Speaker 02:
I would agree with the first part of that, which is that the policy did allow, under the safety cell policy, it did allow for when an inmate is being taken to a safety cell that a gurney or a wheelchair or even a restraint chair can be used.

[00:05:36] Speaker 02:
It permitted that use.

[00:05:37] Speaker 02:
The policy did not require that it be used for any particular inmate.

[00:05:41] Speaker 02:
It obviously treated it as reasonable, as a reasonable alternative.

[00:05:45] Speaker 04:
And I guess I'm trying to understand

[00:05:47] Speaker 04:
why you seem to be questioning the exact wording of the jury instruction when, as given, the instruction invites or calls for deference to jail officials' consideration of legitimate correctional interests.

[00:06:06] Speaker 02:
Yes, Your Honor.

[00:06:07] Speaker 02:
But the part of the instruction that invites the jury to consider the legitimate interests of the jail is specific to the reasonable accommodation element, which is a separate element, again, from what we think was missing from the instruction.

[00:06:20] Speaker 02:
There is a difference between saying that what was done is unreasonable versus there could have been something else that was done that would have also been reasonable.

[00:06:28] Speaker 02:
And I think the Pierce versus Orange County case and the Gates v. Rowling case make clear that those are both elements that the plaintiff would have to satisfy.

[00:06:37] Speaker 00:
I'd like to ask a pretty specific question because there was a toileting claim at the beginning of this case because it's in the complaint because a portable toilet was not made available in the safety cell and the district court entered an order indicating that I think granting your motion your client's motion that was not administratively exhausted and the claim was not allowed to go forward but she also allowed the testimony so the jury heard

[00:07:03] Speaker 00:
Mr. Bill testified that he was in the safety cell and he was not allowed a toilet.

[00:07:09] Speaker 00:
And that was relevant because there was a claim about whether this was going to be deemed punitive or not punitive.

[00:07:15] Speaker 00:
The jury, of course, decided it wasn't punitive.

[00:07:17] Speaker 00:
But the jury did hear that testimony.

[00:07:19] Speaker 00:
And I'm wondering why they couldn't have relied on it when they considered either the Monell claim or the ADA claim.

[00:07:27] Speaker 02:
The jury certainly heard that testimony, but that evidence about whether what was available to him in the safety cell

[00:07:32] Speaker 02:
had no bearing on

[00:07:49] Speaker 02:
of Mr. Bell from his cell to the safety cell.

[00:07:52] Speaker 00:
So you think that the training, the Monell argument that the staff weren't properly trained could not have included any consideration of making a toilet available?

[00:08:03] Speaker 02:
Correct, Your Honor.

[00:08:07] Speaker 02:
Well, the Monell claim initially was based on both the excessive force claim as well as the safety cell claim.

[00:08:13] Speaker 02:
But the jury found that there was no constitutional violation with respect to the safety cell.

[00:08:17] Speaker 00:
And that leaves you back to... In the decision to move him to a safety cell.

[00:08:21] Speaker 02:
Correct, the decision to use the safety cell for his behavior.

[00:08:25] Speaker 02:
That claim was the jury verdict found in favor of Sergeant Williams.

[00:08:29] Speaker 02:
The instructions on the Monnell claim, the very first element is that there was a violation, I can't remember the exact words, but it specifically refers to claim one and claim two.

[00:08:39] Speaker 00:
All right, so the other thing I'd like to talk to you about is the size of this verdict because the damage to the ward is very large.

[00:08:45] Speaker 00:
It's not something you've identified in the top three things that you want to talk about today.

[00:08:49] Speaker 00:
But if you could indulge me, it seemed to me there was a set of instructions given to the jury that did not instruct the jury that they had to find more than a de minimis injury.

[00:08:57] Speaker 00:
And then that was discovered at some point.

[00:08:59] Speaker 00:
How long did this jury deliberate?

[00:09:02] Speaker 02:
I do not recall off the top of my head.

[00:09:04] Speaker 02:
I believe a day or two.

[00:09:06] Speaker 00:
I think a couple of days.

[00:09:07] Speaker 00:
But at any rate, my understanding from the record is that was brought to the court's attention.

[00:09:11] Speaker 00:
So the court then gave an oral instruction, brought the jury back in and instructed them, you have to find more than a de minimis injury.

[00:09:17] Speaker 00:
And then within about an hour, very shortly thereafter, the jury came back.

[00:09:21] Speaker 00:
Is that right?

[00:09:22] Speaker 02:
That's correct, Your Honor.

[00:09:23] Speaker 00:
OK.

[00:09:24] Speaker 00:
What was the evidence about the de minimis injury?

[00:09:28] Speaker 00:
I've looked, and I think it's Bell's own testimony,

[00:09:31] Speaker 00:
But he said, for example, he said that the handcuffs cut into my wrists when I was picked up.

[00:09:36] Speaker 00:
But when he says cut into, you know, I don't see medical records, so it's hard to know exactly what we're talking about as to any of these.

[00:09:45] Speaker 00:
So did I miss any medical records?

[00:09:47] Speaker 02:
No, Your Honor.

[00:09:48] Speaker 02:
The only other medical evidence was from a defendant's expert, an emergency room doctor, who testified that he reviewed medical records from the jail and kind of recited what he gleaned from those medical records.

[00:10:00] Speaker 02:
But the medical records themselves were not in evidence.

[00:10:03] Speaker 05:
Mr. Wang, may I ask you a question?

[00:10:05] Speaker 05:
Do you intend to argue that the $504,000 verdict was excessive?

[00:10:13] Speaker 02:
Yes, Your Honor.

[00:10:14] Speaker 02:
We are arguing both that is grossly excessive as well as based on speculation.

[00:10:18] Speaker 00:
That's not one of the things you identified when you said you wanted to talk about three things today.

[00:10:22] Speaker 02:
I suspect all three of us want to hear about that.

[00:10:25] Speaker 02:
I'm happy to address that question.

[00:10:27] Speaker 04:
I will now say all three of us want to hear.

[00:10:28] Speaker 02:
That would be the time.

[00:10:30] Speaker 02:
Okay.

[00:10:30] Speaker 02:
So the PLRA requires that there be a diminutive physical injury in order to recover for mental and emotional

[00:10:36] Speaker 04:
You're not entitled to zero him out, okay, on this.

[00:10:44] Speaker 04:
He was injured.

[00:10:46] Speaker 04:
That's enough to get past the PLRA requirement for emotional damages and so on.

[00:10:51] Speaker 04:
There's enough here.

[00:10:52] Speaker 04:
I'm expressing my own view here.

[00:10:54] Speaker 04:
But $504,000 for what I saw in the video seems like a pretty extraordinary number.

[00:11:02] Speaker 04:
But it would be helpful if you could provide some case law guidance for us in doing that comparison, and I'll invite plaintiff's counsel to do the same.

[00:11:13] Speaker 02:
Yes, Your Honor.

[00:11:14] Speaker 02:
Unfortunately, there is nothing in the record in terms of comparative cases in order to judge the amount.

[00:11:19] Speaker 02:
It's not a matter of record.

[00:11:20] Speaker 04:
It's a matter of legal argument.

[00:11:22] Speaker 02:
Yes, Your Honor.

[00:11:24] Speaker 02:
Our legal argument focused on the fact that we don't think there was.

[00:11:26] Speaker 02:
We understand that courts are very deferential to jury verdicts and jury's calculations of damages.

[00:11:31] Speaker 02:
And so we did not seek to provide sort of legal argument related to that.

[00:11:35] Speaker 02:
It has to really do with the lack of substantial evidence, the lack of any evidence to support a number at issue here.

[00:11:40] Speaker 00:
The first hurdle you've got is you've got a jury verdict.

[00:11:42] Speaker 00:
And so as you said, very deferential to jury verdicts.

[00:11:46] Speaker 00:
But then you also have this award that is confounding, because it's a really big number.

[00:11:51] Speaker 00:
And there are, I think, enough under our case law to show de minimis injury.

[00:11:56] Speaker 00:
That would be a threshold, as Judge Hamilton said.

[00:11:59] Speaker 00:
If he didn't have de minimis energy, he wouldn't be entitled to any damages.

[00:12:04] Speaker 00:
But then we're looking at emotional distress damages, which is why I went to the toileting claim, for example, and some of the other testimony that the jury heard.

[00:12:16] Speaker 00:
And if we're in that

[00:12:18] Speaker 00:
um, galaxy where there's that deference to the jury verdict.

[00:12:23] Speaker 00:
And we're talking about the jury's picked a number for this emotional distress injury.

[00:12:28] Speaker 00:
What case law do we have that we could compare to?

[00:12:30] Speaker 00:
What, what legal analysis have you got that tells us that we have, um, grounds to question that award?

[00:12:39] Speaker 02:
Yes, Your Honor.

[00:12:39] Speaker 02:
And related to the mental and emotional distress damages, there was no, part of our argument, too, is there wasn't sufficient evidence of any serious mental or emotional distress that could justify that number.

[00:12:49] Speaker 00:
Well, they had Bell's testimony, right?

[00:12:51] Speaker 00:
They had Bell's testimony.

[00:12:52] Speaker 02:
He did not testify to any mental or emotional distress damages from the transport, which is the only claim that the jury found from Mr. Bellon.

[00:13:00] Speaker 00:
Well, Counsel, we read the testimony.

[00:13:02] Speaker 00:
I'm saying it was humiliating, it was degrading.

[00:13:06] Speaker 00:
He certainly testified to the pain that he experienced as well.

[00:13:09] Speaker 02:
Yes, Your Honor.

[00:13:10] Speaker 02:
Your Honor is correct.

[00:13:10] Speaker 02:
He testified to the pain he felt during the transport, but his testimony about the humiliation and the degradation was all related to him being in the safety cell, allegedly without clothes on for a bit.

[00:13:20] Speaker 04:
What he said at the end was, we're going to have a field day with Sergeant Williams, right?

[00:13:29] Speaker 02:
Yes, Your Honor.

[00:13:31] Speaker 02:
But going back to the question about the legal authority, the court relied on a case, Webb v. Ackerman, from the central district of California below, and using that as an example of why these damages made sense.

[00:13:41] Speaker 02:
That case is readily distinguishable from the kinds of the mental and emotional distress that we're talking about here, which even if Mr. Bell was talking about the transport, which we don't believe he was, the record, I think, is very clear that he was talking about his time in the safety cell, which cannot be compensated because he lost that claim.

[00:13:58] Speaker 02:
But even if he was talking about it, it is nowhere near the kind of mental and emotional distress that was at issue in Webb v. Ackerman.

[00:14:04] Speaker 00:
Council, did you ask for the special verdict form that you're talking about now?

[00:14:09] Speaker 00:
Did the city request a special verdict form that would break down mental and emotional damages from the transport as opposed to

[00:14:17] Speaker 02:
time in the safety cell.

[00:14:29] Speaker 02:
for the safety cell was found in favor of Sergeant Williams, and it would be.

[00:14:33] Speaker 00:
Well, you mean, to be specific, the decision to move him to the safety cell.

[00:14:36] Speaker 00:
Correct.

[00:14:37] Speaker 00:
You have the claim for, OK, the decision to move him there.

[00:14:39] Speaker 02:
And his stay in that safety cell.

[00:14:40] Speaker 00:
So it's pretty tough.

[00:14:40] Speaker 00:
I'm not sure.

[00:14:41] Speaker 00:
The district court had, she would be in the same very head-scratching position that we are in with this.

[00:14:47] Speaker 00:
So I'm going to ask you a question that I'm going to ask opposing counsel as well.

[00:14:50] Speaker 00:
Has there been any attempt to mediate the damages award in this case?

[00:14:53] Speaker 02:
There has, Your Honor.

[00:14:55] Speaker 02:
They have not been successful.

[00:14:56] Speaker 00:
The Ninth Circuit mediator?

[00:14:57] Speaker 02:
Correct, Your Honor.

[00:14:59] Speaker 00:
One moment, Judge Baya, do you have additional questions?

[00:15:02] Speaker 05:
No, I have some questions of the defendant, of the defendant's father.

[00:15:05] Speaker 00:
Okay.

[00:15:06] Speaker 00:
Judge Hamilton.

[00:15:08] Speaker 04:
I think we've dealt with everything I'm concerned about.

[00:15:12] Speaker 00:
Thank you.

[00:15:12] Speaker 00:
Okay.

[00:15:13] Speaker 00:
Great.

[00:15:13] Speaker 04:
Thank you, Your Honors.

[00:15:14] Speaker 00:
Thank you.

[00:15:14] Speaker 00:
We'll hear from opposing counsel, please.

[00:15:26] Speaker 03:
Good morning and may it please the court.

[00:15:28] Speaker 03:
My name is Chon Kim and I am joined by my colleague Emily Rose Johns.

[00:15:34] Speaker 03:
Together we represent Mr. Bell, who is the plaintiff appellee in this matter.

[00:15:41] Speaker 03:
This court must affirm the district court's denial of appellant's motion for judgment as a matter of law.

[00:15:48] Speaker 03:
and the jury's verdict because substantial evidence supports the finding that the city and county of San Francisco and Yvette Williams violated Mr. Bell's rights under the Fourth Amendment, the Americans with Disabilities Act,

[00:16:04] Speaker 03:
and Rehabilitation Act.

[00:16:05] Speaker 05:
Kim, may I ask you, based on some experience I had over 30 years in personal injury cases before I became a judge, we used to look to certain elements in evaluating a case, and one of them was

[00:16:27] Speaker 05:
Did the man lose any time from work, any wage loss?

[00:16:32] Speaker 05:
Here there's no wage loss, right?

[00:16:35] Speaker 03:
That's correct.

[00:16:36] Speaker 05:
Secondly, we used to look at the treatment he received following the injury.

[00:16:43] Speaker 05:
and how extensive it was and how intense it was as to the pain and suffering that he received.

[00:16:52] Speaker 05:
Now, what kind of treatment did Mr. Bell get here?

[00:17:02] Speaker 03:
Mr. Bell was incarcerated at the time, and as far as treatment goes, he had to rely on the prison, or on the jail.

[00:17:11] Speaker 05:
I'm asking where he was, nor what he had to rely upon.

[00:17:14] Speaker 05:
I'm asking about what treatment he got from anyone, any medical provider.

[00:17:20] Speaker 05:
What treatment did he get?

[00:17:22] Speaker 03:
He received none.

[00:17:24] Speaker 05:
Okay, now.

[00:17:26] Speaker 05:
The third thing we used to look at is the residual effect of the injury.

[00:17:31] Speaker 05:
Now, sadly, Mr. Bell had lost a leg already.

[00:17:38] Speaker 05:
What residual injuries were shown to exist to the jury?

[00:17:45] Speaker 03:
His physical injuries lasted for some time and were eventually resolved, and he also had lasting emotional distress.

[00:17:56] Speaker 05:
Let's talk about the physical injuries.

[00:17:59] Speaker 05:
What were the physical injuries and how long did they last?

[00:18:05] Speaker 03:
Mr. Bell testified that his rehabilitated shoulder popped during the transfer that he had bruising to his ankle, to his knee.

[00:18:15] Speaker 03:
I believe he also had pain to his back.

[00:18:19] Speaker 03:
And again, he was forced to hop barefoot at a time when he was overweight.

[00:18:25] Speaker 03:
Couldn't and was not support his weight was not supported by the deputies.

[00:18:29] Speaker 00:
I'd go back and to follow up on judge Bayes question Opposing counsel indicated there was a witness who testified to medical records described Medical records an expert who is that expert?

[00:18:43] Speaker 03:
It was the defendant's expert.

[00:18:45] Speaker 03:
Dr. Oldham and

[00:18:47] Speaker 03:
I'm sorry, Dr. Oldham, Gary Oldham.

[00:18:49] Speaker 00:
OK.

[00:18:50] Speaker 00:
And so what records was he looking at if you're telling me that Mr. Bell did not receive treatment?

[00:18:55] Speaker 00:
Was he looking at records from the previous injury or?

[00:18:58] Speaker 03:
I believe he was looking at all records that the jail staff had, but these were records from the jail nurse as she was required per policy to visually inspect Mr. Bell while he's in a safety cell and report what she sees.

[00:19:17] Speaker 00:
Okay, so could you give me the ER site to what she reported?

[00:19:23] Speaker 03:
I do not have that readily available.

[00:19:27] Speaker 04:
She was looking through the door at him, right?

[00:19:31] Speaker 04:
Sorry?

[00:19:31] Speaker 04:
She was looking through the door at him?

[00:19:33] Speaker 04:
Yes.

[00:19:34] Speaker 00:
Oh, that I've seen.

[00:19:34] Speaker 00:
That's all we've got?

[00:19:35] Speaker 00:
Yes.

[00:19:36] Speaker 00:
OK.

[00:19:37] Speaker 05:
I noticed that the medical expert, the incident happened on January the 18th.

[00:19:43] Speaker 05:
And the medical expert testified February 3rd, patient talkative, smiling, complaining of right shoulder pain in addition to back pain.

[00:19:52] Speaker 05:
complaining of cracking sensation when using right arm.

[00:19:56] Speaker 05:
States Tylenol helps but does not last long enough for pain relief.

[00:20:02] Speaker 05:
Has pending follow-up appointment is to be trained on pain management.

[00:20:09] Speaker 05:
Is that more or less a situation that occurred?

[00:20:12] Speaker 03:
Yes.

[00:20:16] Speaker 05:
Now, there's an odd number here, 504,000, not 500,000.

[00:20:23] Speaker 05:
Did you argue at the trial that Section 504 of the Rehabilitation Act was applicable and therefore there should be a multiple of 504?

[00:20:37] Speaker 03:
No.

[00:20:38] Speaker 03:
What was argued in closing argument was that the jury could award Mr. Bell an amount that they found reasonable for every foot he was forced to hop.

[00:20:52] Speaker 03:
And in this case, he was forced to hop 64 feet.

[00:20:56] Speaker 03:
So Mr. Bell requested that the jury either

[00:21:03] Speaker 03:
Calculate damages by applying $1,000 per foot, $5,000 per foot, or $10,000 per foot.

[00:21:11] Speaker 03:
So the maximum amount that Mr. Bell was seeking in this case was $640,000, which the jury fell short of, came back with an amount that was $504,000.

[00:21:24] Speaker 03:
And I would point this court to Mr. Bell's opposition to the judgment as a matter of law.

[00:21:33] Speaker 03:
And in that motion, we cited many cases where there was a large amount awarded to a prisoner.

[00:21:49] Speaker 03:
For example, we cited Mackenzie versus City of Milpitas, which is a 9th Circuit case.

[00:21:56] Speaker 03:
We cited Fonseca versus City of Long Beach.

[00:22:02] Speaker 03:
That in the record is on 2ER0252.

[00:22:09] Speaker 03:
Thank you.

[00:22:13] Speaker 03:
I would also, this court should not disturb Judge Ilson's finding that Sergeant Williams violated clearly established law when under threat of greater harm, she forced a compliant Mr. Bell to hop barefoot on one leg to exhaustion before she directed her deputies to drag him

[00:22:36] Speaker 03:
and carried him by his manacled limbs.

[00:22:39] Speaker 04:
Mr. Kim, could I ask you about both the injunctive issues and the Manel claim?

[00:22:44] Speaker 04:
On the injunction issue, is it correct, did you all ever move for an injunction, approve an injunction?

[00:22:51] Speaker 03:
We didn't move for an injunction.

[00:22:52] Speaker 03:
When was that?

[00:22:54] Speaker 03:
That was subsequent to the denial of the judgment as a matter of law.

[00:23:03] Speaker 04:
Not until after the trial?

[00:23:05] Speaker 04:
Yes.

[00:23:05] Speaker 04:
And after JMOL was denied?

[00:23:08] Speaker 03:
Yes.

[00:23:08] Speaker 04:
Was this something at the invitation of the district judge?

[00:23:11] Speaker 03:
No, something that we had requested and then we did not follow up with the judge on.

[00:23:18] Speaker 03:
However, I do want to note that that is no longer an issue in this case.

[00:23:22] Speaker 03:
How is that?

[00:23:23] Speaker 03:
Defense counsel has informed us that they were abandoning the injunction issue.

[00:23:30] Speaker 04:
Have they told us that?

[00:23:32] Speaker 03:
They have not notified the court.

[00:23:34] Speaker 00:
You have three unnotified judges up here, so perhaps, Henry, you could let us know if we have the claim.

[00:23:40] Speaker 04:
And if so, why the plaintiff might have standing for such relief.

[00:23:45] Speaker 04:
But let me ask you about the Mannell claim.

[00:23:47] Speaker 04:
As I understand it, you didn't try to prove a pattern or practice.

[00:23:54] Speaker 04:
And so you're trying to take advantage of in essence the the city of Canton hypothetical about a city Turning loose a police force armed without any training about how and when to use their firearms That seems like a stretch to me, I'll just put it that way so go ahead and

[00:24:18] Speaker 03:
The standard of review for the failure to train is that was there substantial evidence to support the jury's finding?

[00:24:29] Speaker 03:
Defendants are not challenging the instruction in that case.

[00:24:34] Speaker 03:
However, to answer your question, I believe there's a case called Kirkpatrick

[00:24:45] Speaker 03:
Versus Sid County of Walsh show that's eight four three four third seven eight four and That's non-circuit case in 2016.

[00:24:55] Speaker 04:
So what what's the site again?

[00:24:57] Speaker 03:
Eight four three.

[00:24:59] Speaker 03:
Yeah, four third seven eight four F third seven eight four.

[00:25:04] Speaker 03:
Okay.

[00:25:05] Speaker 03:
Thank you

[00:25:06] Speaker 03:
Kirkpatrick is analogous to this case in the Ninth Circuit found in that case that the Social Services Agency completely failed to train its social workers on the procedures for obtaining a warrant.

[00:25:22] Speaker 03:
prior to removing a child from someone's home.

[00:25:28] Speaker 03:
And the reason why that's analogous here is because it's uncontested that San Francisco had an affirmative duty to accommodate Mr. Bell

[00:25:39] Speaker 03:
and that, however, that they did not train their officers on how to do that during a cell transport or a cell extraction.

[00:25:52] Speaker 03:
And that's why I think that's analogous because for the reasons I just stated.

[00:25:57] Speaker 03:
But again, I do not think that is something that defendants in this case have not challenged

[00:26:10] Speaker 03:
the jury instructions.

[00:26:12] Speaker 03:
Therefore, substantial evidence did exist, and it was uncontested that the defendants did not, or that San Francisco did not train its deputies on transporting people with disabilities.

[00:26:27] Speaker 00:
Council, you were aware that you're out of time, you're over time?

[00:26:29] Speaker 00:
Were you sharing time?

[00:26:31] Speaker 03:
Yes, it was, it said eight minutes when I started.

[00:26:40] Speaker 00:
So is he out of time?

[00:26:42] Speaker 00:
Yes.

[00:26:42] Speaker 00:
You're significantly over time.

[00:26:43] Speaker 00:
I think three minutes over time.

[00:26:45] Speaker 00:
So we'll hear from opposing counsel.

[00:26:46] Speaker 00:
I mean, co-counsel, please.

[00:26:57] Speaker 00:
Thank you.

[00:26:57] Speaker 00:
No, excuse me.

[00:26:58] Speaker 00:
He took some for time.

[00:27:01] Speaker 00:
All right.

[00:27:02] Speaker 01:
OK.

[00:27:02] Speaker 01:
Yes, Your Honors.

[00:27:04] Speaker 00:
Go right ahead.

[00:27:05] Speaker 01:
Thank you.

[00:27:06] Speaker 01:
And so I am here to speak about the ADA instruction issue and any follow-up questions that Your Honors may have about the topics that my colleague addressed.

[00:27:16] Speaker 00:
OK.

[00:27:16] Speaker 00:
That's great.

[00:27:17] Speaker 00:
Can I start, please?

[00:27:18] Speaker 00:
There's no difference in the damages awarded on the ADA claim, right?

[00:27:22] Speaker 01:
That's correct.

[00:27:22] Speaker 01:
There was no separation between the damages awarded between any of the claims.

[00:27:26] Speaker 00:
Could the toileting claim, the testimony, not the toileting claim, that was not exhausted, but could Mr. Bell's testimony about being in the cell and being denied a portable toilet have been considered appropriately?

[00:27:41] Speaker 00:
for the Monell claim or for the ADA claim?

[00:27:44] Speaker 01:
For the purposes of damages, Your Honor.

[00:27:46] Speaker 01:
I mean, I think that Mr. Bell's testimony about his emotional distress over not being able to use the toilet could not have supported the damages award.

[00:27:59] Speaker 01:
I don't believe that there's any need to look at that to support the damages award.

[00:28:04] Speaker 00:
OK, so if that's the case, then we're back to...

[00:28:08] Speaker 00:
his testimony about his medical, his physical injuries.

[00:28:13] Speaker 00:
That's correct.

[00:28:13] Speaker 00:
Are we missing anything on that front?

[00:28:15] Speaker 01:
There's his testimony and what can be seen in the video.

[00:28:19] Speaker 01:
And the jury witnessed the video several times where you can hear Mr. Bell's complaints of pain, grunting, and see

[00:28:26] Speaker 01:
what he experienced and respectfully the jury's interpretation of that video to the extent that it informed their damages award is entitled to substantial deference in this case.

[00:28:38] Speaker 01:
But those are the two places where the court can find support for Mr. Bell's physical injuries.

[00:28:44] Speaker 01:
And then there was also a grievance, I'm sorry, Your Honor, where he

[00:28:48] Speaker 01:
that was in the record where he expressed both the emotional damage and injuries that he experienced from that cell transportation.

[00:28:57] Speaker 00:
Okay, so on the physical side, I think the answer to my question is yes.

[00:28:59] Speaker 00:
Yes.

[00:29:00] Speaker 00:
We've heard everything.

[00:29:01] Speaker 00:
Okay.

[00:29:01] Speaker 00:
Yes.

[00:29:02] Speaker 00:
Okay.

[00:29:02] Speaker 00:
On the emotional distress damages award, because I think that's what this is here predominantly.

[00:29:07] Speaker 00:
I'm not suggesting that I think there wasn't a sufficient

[00:29:11] Speaker 00:
physical injury to get past the de minimis standard.

[00:29:14] Speaker 00:
I think there's a strong record that the jury did get past the de minimis standard right after they were instructed that they had to find more than de minimis physical injury.

[00:29:22] Speaker 00:
What have we got by way of evidence to support the emotional damages here?

[00:29:26] Speaker 01:
So it's simply Mr. Bell's testimony about the humiliation, degradation, his grievance that expressed his feelings about that experience, again, and the emotional distress from that.

[00:29:38] Speaker 00:
But from the transport?

[00:29:40] Speaker 01:
From the transport.

[00:29:41] Speaker 01:
He addresses both.

[00:29:46] Speaker 01:
He does describe emotional distress in his testimony, and if my memory serves, in the grievance of both of those instances.

[00:29:54] Speaker 01:
Both his emotional distress from the transfer and how that felt, and the emotional distress from being placed in the safety cell.

[00:30:01] Speaker 01:
But he does describe his emotional distress.

[00:30:03] Speaker 05:
May I ask you this?

[00:30:05] Speaker 05:
Is there any indication of Mr. Bell having received psychological or psychiatric treatment for his emotional distress?

[00:30:13] Speaker 01:
No, that was not a part of the record.

[00:30:16] Speaker 01:
He did not claim any emotional distress beyond the garden variety emotional distress that came from that.

[00:30:22] Speaker 00:
The party cited any case law where we have on appeal reduced or remanded for remittitor

[00:30:29] Speaker 00:
a claim after a jury verdict on an emotional damages award?

[00:30:34] Speaker 01:
Can you repeat that question, Your Honor?

[00:30:35] Speaker 00:
I'm trying to figure out what we've got to go on on appeal.

[00:30:39] Speaker 00:
Is there a case law where we have remanded with direction that a remitted or should have been granted where the award was emotional distress damages?

[00:30:48] Speaker 01:
I ... Plaintiffs did not search for that case law or find that case law.

[00:30:52] Speaker 01:
I think the case law that we've presented in the citation to the record was that which Mr. Bell ... Mr. Kim gave the court, but that the Ninth Circuit has upheld awards of $200,000 to ... Hold on.

[00:31:06] Speaker 00:
For $200,000 for emotional distress damages with what kind of physical injury?

[00:31:11] Speaker 01:
So this was a tasing case, and I don't know that there weren't, as far as I understand, not extreme emotional distress damages.

[00:31:17] Speaker 01:
It was a tasing case, emotional distress.

[00:31:19] Speaker 00:
That's what I'm looking at.

[00:31:19] Speaker 00:
That's what I'm looking at, is a case where we have very modest physical injury, but an emotional distress damages award.

[00:31:26] Speaker 00:
Can you tell me what you think is the most comparable?

[00:31:28] Speaker 01:
I think my memory is that Webb is the most comparable.

[00:31:32] Speaker 01:
It is the case on which Judge Ilston relied.

[00:31:37] Speaker 04:
And that did not reach appeal, correct?

[00:31:41] Speaker 01:
I don't believe, so I think the citation that we have in that case is a central district case, but it is a case where a person had testified to a bit of emotional distress in addition to the

[00:32:00] Speaker 01:
to the physical injuries and that was upheld, that was sufficient for the court to uphold a $600,000 verdict.

[00:32:09] Speaker 04:
Would it be reasonable for this court in evaluating this verdict to look at emotional damages awarded, for example, under the ADA or Rehabilitation Act when someone loses the job she's held all her career?

[00:32:28] Speaker 01:
I think that those could be analogous.

[00:32:31] Speaker 01:
I think that some of... I don't know that any of the cases where we've addressed the... Have the PLRA.

[00:32:38] Speaker 01:
I'm sorry?

[00:32:39] Speaker 00:
Well, we have the PLRA.

[00:32:40] Speaker 00:
So this person was in jail.

[00:32:43] Speaker 00:
That's correct.

[00:32:43] Speaker 00:
And Congress has required that there's this minimum

[00:32:46] Speaker 00:
physical damages requirement, more than de minimis.

[00:32:50] Speaker 01:
That's correct.

[00:32:50] Speaker 00:
So when we look to other ADA cases that take place outside of jail, we're already in an apples to oranges circumstance, it seems to me.

[00:32:57] Speaker 00:
But we are looking... True.

[00:32:59] Speaker 04:
We also have a cap of $300,000 for the biggest employers.

[00:33:02] Speaker 00:
So we're looking for what we've got, and there's not a lot here.

[00:33:07] Speaker 00:
So what's your best shot?

[00:33:08] Speaker 01:
Yes.

[00:33:09] Speaker 01:
So respectfully, I think the court could look at ADA claims, the emotional distress awards under ADA claims for non-incarcerated individuals.

[00:33:20] Speaker 01:
The reason being that once the PLRA only establishes the de minimis standard, and once that hurdle is overcome, there is no limit.

[00:33:29] Speaker 01:
There is no minimum on what a jury may award somebody for their physical injuries or emotional distress in the prison context.

[00:33:36] Speaker 00:
We've now taken you over your time, but I don't think Judge Bea had a chance.

[00:33:42] Speaker 01:
I'm fine.

[00:33:42] Speaker 01:
Forgive me, Your Honor.

[00:33:42] Speaker 00:
Thank you.

[00:33:43] Speaker 00:
No, no, no.

[00:33:43] Speaker 00:
We took you over time.

[00:33:44] Speaker 00:
We appreciate your help.

[00:33:46] Speaker 00:
We'll hear from opposing counsel, please.

[00:33:49] Speaker 00:
Maybe you could start with clarifying where we are on the claim for injunctive relief, please.

[00:33:55] Speaker 02:
Yes, Your Honor.

[00:33:56] Speaker 02:
So the injunctive relief issue, we still claim that it should not have been issued because of the underlying claims should have been found in favor of defendants.

[00:34:06] Speaker 02:
But the specific argument about overbreath, we were not going to push today.

[00:34:10] Speaker 02:
After we filed the appeal, the court held a hearing.

[00:34:15] Speaker 00:
You're either appealing it or you're not.

[00:34:16] Speaker 00:
We just need to know.

[00:34:18] Speaker 02:
We're not arguing the over-breath right now.

[00:34:20] Speaker 00:
All right.

[00:34:20] Speaker 00:
Thank you.

[00:34:21] Speaker 00:
Thank you.

[00:34:21] Speaker 04:
But why does plaintiff have standing is the problem for injunctive relief under City of Los Angeles against Lions?

[00:34:30] Speaker 04:
That's my problem.

[00:34:31] Speaker 04:
Maybe I should have asked plaintiff's counsel more about that.

[00:34:36] Speaker 02:
I believe the court's reason for issuing the injunction was likely that it would happen again because Mr. Bell is still in the custody of the San Francisco County Jail, but I can't speak.

[00:34:47] Speaker 02:
Yes, Your Honor, more thou.

[00:34:51] Speaker 00:
So perhaps Fellowship of Christian Athletes is a reason that we would look beyond lions, or is that part of your argument or not so much?

[00:34:59] Speaker 02:
It is not part of our argument.

[00:35:02] Speaker 02:
I wanted to take this time to briefly address a couple of points, going back to the damages issue, just to make sure that the record site is in there for the evidence of what physical injury he did not suffer.

[00:35:13] Speaker 02:
And that is from the Excerpts of Records 1699.

[00:35:16] Speaker 02:
That's where Dr. Oldham testifies about the medical records and reads the nurse's notes of no obvious trauma, no color, discoloration, no redness, et cetera.

[00:35:26] Speaker 02:
And then addressing the two Ninth Circuit cases that

[00:35:29] Speaker 02:
opposing counsel brought up as comparators for the large amount of damages here.

[00:35:34] Speaker 02:
This was McKenzie v. City of Milpitas, and this was an award of $200,000 for someone who didn't receive any physical injury at all, but it was because she believed that her son had been shot with a revolver, so her son had been tasered, and she witnessed it, and so it was for the emotional trauma and the extreme pain and anguish from watching her son become unconscious from being tasered.

[00:35:57] Speaker 00:
Which one is the City of Long Beach case?

[00:36:00] Speaker 00:
You just gave us the City of Milpitas case, which I appreciate very much, but do you remember which one is the City of Long Beach?

[00:36:07] Speaker 02:
No, Your Honor, and I don't recall in what context that came up.

[00:36:09] Speaker 00:
I'll go back and look.

[00:36:10] Speaker 02:
But the other case that plaintiff mentioned was the Fonseca, oh, this is it, Fonseca v. City of Long Beach.

[00:36:16] Speaker 02:
So that case was an unpublished Ninth Circuit opinion, and that was a $250,000 award for enduring two criminal trials and for not being exonerated until a year after his arrest and believing that he had to be put on a sex offender registry.

[00:36:30] Speaker 02:
So it's a very different situation here.

[00:36:31] Speaker 02:
Again, no physical injuries, but a very, very intense and severe emotional distress.

[00:36:37] Speaker 02:
And that is our point is that compensatory damages are supposed to compensate for the actual injury suffered.

[00:36:44] Speaker 02:
So comparing to cases where the emotional distress, the pain and suffering are very different is not a fair comparator for what an appropriate amount of damages are.

[00:36:53] Speaker 04:
So what would be an appropriate ceiling here in your view?

[00:36:57] Speaker 02:
In our view, we don't think there was evidence of diminished physical injury.

[00:37:01] Speaker 04:
Okay, if we disagree with you about that, what's an appropriate ceiling?

[00:37:05] Speaker 02:
We would still maintain that there was no real injury here, and so a $1 nominal amount.

[00:37:11] Speaker 04:
That's preposterous.

[00:37:14] Speaker 04:
I mean, I've got to say, having watched the video, I don't think it's a $504,000 case, but it's not a $1 case either.

[00:37:21] Speaker 04:
I'm looking for some meaningful guidance.

[00:37:24] Speaker 04:
Now is your chance.

[00:37:25] Speaker 02:
I think there are looking to excessive force cases where there is very minimal force and yet still a constitutional advisory found might be a good way to go about finding something that is reasonable.

[00:37:35] Speaker 04:
Give us a number.

[00:37:38] Speaker 02:
I haven't done that research to find comparable numbers, but certainly under five figures.

[00:37:45] Speaker 00:
All right.

[00:37:46] Speaker 00:
Thank you, counsel.

[00:37:48] Speaker 00:
We'll take that case under advisement and we'll go on to the final case on the calendar today.