[00:00:12] Speaker 01:
Good morning.

[00:00:13] Speaker 02:
Good morning.

[00:00:14] Speaker 02:
Nashaan Neal on behalf of appellant Charles Hayes, and I'd like to reserve two minutes of my time, and may it please the court.

[00:00:25] Speaker 02:
This case represents a systematic failure that led to a disabled black man being detained in Kern County on a mistaken identity.

[00:00:37] Speaker 02:
Mr. Hayes was subjected to

[00:00:42] Speaker 02:
not being afforded minimum due process.

[00:00:46] Speaker 02:
And the district court erred when it granted summary judgment to the Kern County officials.

[00:00:52] Speaker 02:
And the reason why the court erred is because the Kern County officials had readily available means to correct that misidentification within less than 24 hours if they would have chose to do so.

[00:01:07] Speaker 04:
I'm sorry.

[00:01:09] Speaker 04:
I want to direct you specifically to your claims against Harrell.

[00:01:16] Speaker 04:
Now, she was the booking clerk, as I remember.

[00:01:21] Speaker 04:
Presumably, she was supposed to do something to confirm your client's identity.

[00:01:27] Speaker 04:
What evidence was there that she was confronted with to alert her on the identity issue?

[00:01:36] Speaker 02:
In the record, during the booking process, Mr. Hayes actually made note that he was not Devon Robinson.

[00:01:46] Speaker 02:
And at that time, during the booking process with the arresting officers, call them banks, she was present during that process.

[00:01:54] Speaker 02:
And they all laughed at Mr. Hayes and said that, oh, showed an ID.

[00:01:59] Speaker 02:
And in that record, the site is between 330

[00:02:03] Speaker 02:
Exit of the record page 336 and 349 where they laughed and joked about all black people look alike while looking at a photo of Mr. Robinson and held it up to his face and that's a part of the notion of

[00:02:19] Speaker 02:
why this court did not take that as a reasonable inference, to say, to the officers that were part of the arresting officers, Banks, Klawitter, as well as the booking clerk, of taking this claim of misidentification serious.

[00:02:34] Speaker 02:
And this is important because at the time of the arrest, or at the pickup time, we submit that the officers did not have readily information.

[00:02:47] Speaker 02:
and that it was a valid warrant presented at the jail.

[00:02:51] Speaker 02:
But after protests of the claims of innocence, that triggered at least a minimum moment to alert everyone in the jail.

[00:03:02] Speaker 04:
And the reason- Aside from the protest, was there any physical differences between the individuals

[00:03:13] Speaker 04:
the individual in the picture and that officer Harrell had to the one presented in front of him.

[00:03:22] Speaker 02:
So the picture at issue was the booking picture, and it would have showed Mr. Robinson at a 5'11".

[00:03:28] Speaker 02:
Charles Hayes is a small stature, about five inches shorter.

[00:03:31] Speaker 02:
And he weighs 180 pounds in the picture, and he was 40 pounds lighter.

[00:03:37] Speaker 02:
And the reason why I bring that up is also because that picture was a black and white photo.

[00:03:44] Speaker 02:
Both members were dark skinned, and the fact that there was no potential

[00:03:51] Speaker 02:
Vehicle to see it.

[00:03:52] Speaker 04:
I think that's enough to at least say there's some maybe something's wrong here and that we should allow Because I want to make sure I understand the argument You're saying that one Because he protested number one number two because he was five inches shorter than the picture and three Because he was 40 pounds lighter than the individual that that should have triggered a

[00:04:19] Speaker 04:
An additional investigation by Officer Harrell.

[00:04:21] Speaker 04:
Is that what you're saying?

[00:04:23] Speaker 02:
Yes, Your Honor.

[00:04:24] Speaker 02:
I'm actually saying that the booking clerk should have at least informed the other people that are responsible for identification.

[00:04:33] Speaker 04:
And what's your best case to support that contention that there should have been more done at that point?

[00:04:40] Speaker 04:
I just want to make sure I understand your legal argument.

[00:04:44] Speaker 02:
And then the legal argument would be Garcia versus County of Riverside.

[00:04:47] Speaker 02:
In that case where there was a protest done by, there was a warrant out for a man that had two different names.

[00:04:55] Speaker 02:
Oh, and I apologize, Your Honor.

[00:04:56] Speaker 02:
I actually, there's four things.

[00:04:58] Speaker 02:
Also, his name differs.

[00:05:00] Speaker 02:
Charles Hayes versus Devon Robinson.

[00:05:02] Speaker 02:
Those are four things out there.

[00:05:04] Speaker 02:
And in the Garcia case, there was a warrant out for arrest.

[00:05:10] Speaker 02:
and that was similar names.

[00:05:12] Speaker 02:
But the height differences were extreme, nine inches, as well as there.

[00:05:16] Speaker 02:
And the court in that case said they could have done something more.

[00:05:20] Speaker 02:
And that's important because it's not saying that the initial arrest at the time that they were done so, that they could do so, but they had readily available biometrics to do so.

[00:05:31] Speaker 02:
And that's important in this case because in a subsequent arrest of the actual Devon Robinson,

[00:05:40] Speaker 02:
The Kern County officials actually requested fingerprint information or Las Vegas people requested information about the biometrics of such as a fingerprint and they actually ran the fingerprint of.

[00:05:54] Speaker 02:
that they had in his possession, in particular the California driver's license, which had his by his D'Vaughn Robinson's fingerprint.

[00:06:02] Speaker 01:
And that's important here, because that would could have... Let me, before you run out of time, ask you a different question, and that's on qualified immunity, because the district court also reached the qualified immunity question.

[00:06:14] Speaker 01:
I didn't see you challenging that here in the opening brief.

[00:06:19] Speaker 01:
Why shouldn't we find that that has essentially been waived or forfeited?

[00:06:24] Speaker 02:
Your Honor, in the qualified immunity analysis, the district court actually said the only reason why it was not addressed was because it was a no constitutional violation.

[00:06:36] Speaker 02:
And that's where the analysis ended.

[00:06:37] Speaker 02:
And that's important there, because that's why when raised this on appeal, it's not waived that this court reviewing this for the whole entire record, the case law is clear that

[00:06:51] Speaker 02:
Garcia versus County of Riverside falls in line in this case with these defendants with the Kern County law enforcement agencies Officials and that's the reason why I was there so it's not waived.

[00:07:00] Speaker 02:
It's that we challenge the actual decision, which is there was no constitutional right and Then as it relates to I see let me let me make sure I understand that argument so the district court reach qualified immunity and

[00:07:15] Speaker 01:
And your position is, I don't have to raise and challenge that issue because the analysis rested only on whether there was a violation or not.

[00:07:23] Speaker 02:
That is correct.

[00:07:25] Speaker 02:
In regards to the Deputy Rojas, I'll turn to Deputy Rojas, the officer that issued the warrant.

[00:07:37] Speaker 02:
He also failed to provide any due process as it relates to the arrest and detention of Mr.

[00:07:44] Speaker 02:
Mr. Hayes.

[00:07:46] Speaker 02:
His malfeasance began when Las Vegas Metropolitan Police Department reached out to Kern County to say, is this your person?

[00:07:55] Speaker 02:
And all he did was look at a black and white picture and say, yeah, that's the guy.

[00:08:01] Speaker 02:
And the reason why this is important, because in the email, it shows an alias of Mr. Hayes' real name.

[00:08:08] Speaker 02:
And also, he had a

[00:08:13] Speaker 02:
his DMV records.

[00:08:17] Speaker 02:
And it's important that DMV record is because he actually admits it would take no time, less than 24 hours to actually get the fingerprint and run it to compare it.

[00:08:27] Speaker 02:
He could have done that.

[00:08:29] Speaker 02:
And in fact, the record shows when faced with this similar question, they did do that.

[00:08:33] Speaker 02:
And that shows that this is a part of the minimum due process that was not afforded to Charles.

[00:08:39] Speaker 02:
And his malfeasance continued because when he learned of it from the prosecutor in this case, he did nothing until the following day.

[00:08:51] Speaker 02:
And you have this moment where someone says, the prosecutor informs you as you receive the warrant that we have this claim of misidentification, something that could have

[00:09:05] Speaker 02:
happened in short order, he could have done so right then.

[00:09:09] Speaker 02:
But he waited until the prelim, and even at the preliminary hearing, where the alleged victim of the crime actually said, I don't know who he was, who this man is.

[00:09:21] Speaker 02:
And that's what led to the actual investigation.

[00:09:23] Speaker 02:
But at the time there, he did not

[00:09:29] Speaker 02:
allow for him to be released there.

[00:09:30] Speaker 02:
He came back to jail and then ran his fingerprints and then released him.

[00:09:36] Speaker 02:
And that was over the following day.

[00:09:38] Speaker 02:
And that type of malfeasance is just not warranted under the Garcia case because there's a minimum due process that's needed for these officials.

[00:09:48] Speaker 01:
What development is there in the record as to policies and procedures on the Manila issue?

[00:09:56] Speaker 02:
So on the Monell issue, so there's multiple things with the Monell claim.

[00:10:01] Speaker 02:
One, it's a systematic failure.

[00:10:03] Speaker 02:
One, as it relates to all the, the booking process and identification process at the jail is diffused amongst a lot of individuals.

[00:10:12] Speaker 01:
And where there's no- Right, and that's why I asked you, you know, whether during the discovery process, whether there's been some development of the record in terms of policies and procedures or

[00:10:25] Speaker 01:
evidence of absence of policies and procedures where perhaps there should be.

[00:10:31] Speaker 02:
In regards to the absence of a policy, during extradition pickups such as the one here, Kern County doesn't require the officers to review the paperwork.

[00:10:44] Speaker 02:
That leaves the officers not having a responsibility.

[00:10:46] Speaker 02:
They're just picking up someone and taking them to the jail.

[00:10:50] Speaker 02:
There's no requirement for them to review the actual court order, the paperwork, and make sure they have the right person.

[00:10:57] Speaker 02:
And that's important because these people are human beings.

[00:11:00] Speaker 02:
And I believe one would say that we track a lot of packages with these.

[00:11:04] Speaker 01:
Well, he conceded to extradition, though, right?

[00:11:06] Speaker 01:
Are they entitled to rely on that?

[00:11:10] Speaker 02:
Mr. Hayes was misconfused about what happened at that extradition hearing.

[00:11:16] Speaker 02:
And in the record that shows that Mr. Hayes... But in the end, he wanted to be transported.

[00:11:23] Speaker 01:
He agreed to be extradited.

[00:11:26] Speaker 01:
Does that have any sort of binding force for the officers?

[00:11:31] Speaker 01:
When somebody's carrying a identification that purports to be theirs, they have a court appearance, and then they said, yes, I do want to be extradited.

[00:11:41] Speaker 01:
So essentially admitting to his identity as matching the identity card that he's carrying or the driver's license that he's carrying, that has some force for the officers, right?

[00:11:53] Speaker 01:
They don't have to question everything.

[00:11:55] Speaker 01:
that a suspect in custody tells them.

[00:11:58] Speaker 02:
Yes, but that as it relates to the Las Vegas Metropolitan Officers, in that case, in that thing, in that matter, the issue is arising as what Charles did.

[00:12:08] Speaker 02:
Charles complained, and the record shows in the Las Vegas proceedings and in this record that his name was

[00:12:14] Speaker 02:
reflected to change it.

[00:12:16] Speaker 02:
And the reason why I bring that up is because there was no attorney available at that time during the extradition hearing, and he did not understand what was going on during that process.

[00:12:25] Speaker 02:
And that's why he signed his name Charles Hayes.

[00:12:28] Speaker 02:
And in regards to the other policies there, the booking clerk doesn't have a responsibility of actually

[00:12:35] Speaker 02:
alerting someone of an error.

[00:12:38] Speaker 02:
There's no policy there.

[00:12:39] Speaker 01:
I know you wanted to save time, but I've got one question for you.

[00:12:42] Speaker 01:
So assuming that we, and the panel hasn't conferred on this case, but assuming that we think that the factual record potentially creates some tribal issues, do we then send it back to the district court to analyze the clearly established prong under the qualified immunity analysis in the first instance?

[00:13:06] Speaker 02:
I believe the court does not have to do so, because Garcia is there.

[00:13:12] Speaker 02:
But the court can submit it for them to make that factual finding to say that there was clearly established law.

[00:13:18] Speaker 02:
But since it's reviewing De Novo here, it's clear that the Garcia versus County of Riverside case applies.

[00:13:24] Speaker 02:
And therefore, the clearly established right is addressed there.

[00:13:29] Speaker 02:
And I will reserve the rest of the time.

[00:13:31] Speaker 02:
If there's any further questions, I'll actually take those before.

[00:13:35] Speaker 01:
All right, thank you, Council.

[00:13:41] Speaker 00:
Good morning.

[00:13:42] Speaker 00:
May it please the Court, Kathleen Rivera, Kern County Council, on behalf of the Kern County Appellees.

[00:13:48] Speaker 00:
I'd like to begin by addressing some of the points made by my colleague on the opposing side.

[00:13:55] Speaker 00:
First, my colleague on the opposing side

[00:14:00] Speaker 00:
Suggested this court that the roles of the transport deputies banks and claw with her and recall They were the ones who went to Las Vegas to retrieve appellant that their roles are similar to the role of Brandi Harrell who was the Booking clerk those roles are not similar and I don't want you to compare the two roles.

[00:14:21] Speaker 04:
I want you to talk about miss Harrell why isn't Why why was it proper to dismiss her?

[00:14:28] Speaker ?:
I?

[00:14:29] Speaker 00:
It was property to dismiss Brandi Herold because the claim against her was a 14th Amendment claim.

[00:14:37] Speaker 00:
And as the court is aware, the 14th Amendment in a misidentification case requires that further investigation should have been done in the presence of significant physical differences

[00:14:53] Speaker 04:
and that's why I wanted to make sure that that I understood their argument honestly count I'm just trying to figure this out and that's why I wanted to be clear I understood what their arguments were and they indicated in their in our previous discussion it was the five inch difference in height it was the 40 pounds different in weight it was the fact that he indicated that he wasn't mr. Robinson and and of course visually

[00:15:20] Speaker 04:
There was that aspect of it, I imagine, because one was standing in front of them and they had a picture.

[00:15:28] Speaker 04:
So distinguish the cases because I'm looking at the cases like Gantt, for example, where there was a 5'6", 180-pound Hispanic who was mistaken for a 6'1", 180-pound Hispanic male.

[00:15:43] Speaker 04:
So I'm trying to distinguish and I can't, I'm not sure I find

[00:15:50] Speaker 04:
I'm finding cases that are distinguishable.

[00:15:54] Speaker 00:
Yes.

[00:15:55] Speaker 00:
Thank you for that question.

[00:15:56] Speaker 00:
So back to the point of why did the district court rule correctly in dismissing Brandi Hero or granting the summary judgment in favor of Brandi Hero.

[00:16:07] Speaker 00:
First, to that point of weight, that is not an uncontested fact that the appellant weighed 140 pounds.

[00:16:18] Speaker 00:
as my colleague on the opposing side suggested.

[00:16:21] Speaker 00:
In fact, the district court found that it is undisputed that the appellant weighed 160 pounds, and this is borne out by the following.

[00:16:32] Speaker 00:
Recall that the appellant was released from Kern County Jail on January 15, 2019.

[00:16:38] Speaker 00:
The next day,

[00:16:40] Speaker 00:
He applied for an ID card in California.

[00:16:43] Speaker 01:
The weight differential was less.

[00:16:46] Speaker 00:
Yes.

[00:16:47] Speaker 00:
But the height.

[00:16:49] Speaker 00:
Right.

[00:16:49] Speaker 00:
He listed his weight as 160.

[00:16:51] Speaker 00:
Therefore, the weight difference was 20 pounds.

[00:16:55] Speaker 00:
Because recall, he'd been arrested in Las Vegas just a few months before in November.

[00:17:01] Speaker 00:
So this argument that it's undisputed that he was 140 pounds.

[00:17:07] Speaker 00:
And also, the district court took into account

[00:17:10] Speaker 00:
of the appellant's deposition testimony where he was asked what did he weigh at the time of this incident.

[00:17:16] Speaker 00:
He said 140, 150, my weight might have gone up.

[00:17:21] Speaker 00:
So the district court correctly relied on the ID card that was obtained the day after he was released stating 160.

[00:17:29] Speaker 00:
So if we take a 20-pound weight difference,

[00:17:34] Speaker 00:
or 25-pound weight difference if the driver's license of Robertson listed 185.

[00:17:42] Speaker 00:
So to your point, Judge Mendoza, the case law that you cite, for example, Gantt, the district court addressed Gantt.

[00:17:50] Speaker 00:
Further investigation was warranted there because there was a seven-inch height difference.

[00:17:55] Speaker 00:
Here we had a five-inch height difference.

[00:17:59] Speaker 00:
The district court also looked at

[00:18:01] Speaker 00:
Rodriguez versus Farrell, an 11th Circuit case.

[00:18:04] Speaker 04:
You're saying that seven inches was enough to investigate, yet five inches is not.

[00:18:13] Speaker 00:
Well, the important point is that the district court stated that appellant had not put forth any case on these facts of the height and weight difference and the claims of innocence, where to support appellant's argument

[00:18:31] Speaker 00:
that there was a violation of 14th Amendment rights.

[00:18:35] Speaker 00:
That was at the motion for summary judgment stage.

[00:18:38] Speaker 00:
In this appeal, appellant still has not taken that opportunity to put forth a case on these facts showing that there was a 14th Amendment violation.

[00:18:46] Speaker 04:
Hopefully you didn't answer my question.

[00:18:49] Speaker 04:
And maybe I asked it poorly, so I'll put it on me.

[00:18:53] Speaker 04:
You're saying that the five inches in this case was not sufficient for her to have

[00:19:01] Speaker 04:
that for her to have done the additional investigation in addition to the other factors that, you know, even if we're talking about a 20-pound difference, five inches difference, that those other things are insufficient is your position.

[00:19:17] Speaker 00:
Yes, that is my position because, as Your Honor just mentioned, it's the other facts that confronted Brandi Herold.

[00:19:25] Speaker 00:
Number one,

[00:19:26] Speaker 00:
His name was listed as Devon Robinson, a.k.a.

[00:19:32] Speaker 00:
Charles Hayes.

[00:19:33] Speaker 00:
So even assuming that he was standing at the booking counter saying, this is not me or my name is Charles Hayes, that was indicated in the booking information at Kern County.

[00:19:45] Speaker 00:
Number two, as the Your Honor correctly pointed out, the booking clerk, Brandi Herold, as well as the transport deputies Banks and Klawitter were informed

[00:19:56] Speaker 00:
that the appellant consented to extradition, didn't fight extradition.

[00:20:03] Speaker 00:
It is true that the facts of the extradition hearing were not known to those parties.

[00:20:09] Speaker 00:
But it's important to point out that at that extradition hearing, his name was called.

[00:20:15] Speaker 00:
He was asked to identify himself as Devon Robinson.

[00:20:18] Speaker 04:
Well, Counsel, you're arguing a different point that might be relevant to other individuals, but not us, Ms.

[00:20:24] Speaker 04:
Harrell.

[00:20:24] Speaker 00:
Yes, yes.

[00:20:24] Speaker 04:
That's the issue that I'd like you to focus on.

[00:20:26] Speaker 00:
Certainly.

[00:20:27] Speaker 00:
And as far as the case law, back to your question, what the district court considered

[00:20:34] Speaker 00:
Rodriguez versus Farrell, 11th Circuit, a mistaken estimate of no more than five inches does not equal a constitutional violation.

[00:20:43] Speaker 00:
White versus Oleg from the 7th Circuit, holding that a difference of five inches and raised confusion, did not invalidate the arrest.

[00:20:52] Speaker 04:
What circuit is that?

[00:20:53] Speaker 00:
That was the seventh circuit, white versus... Not our circuit.

[00:20:57] Speaker 00:
Not our circuit.

[00:20:58] Speaker 00:
Counsel on the other side suggests that Garcia is controlling here.

[00:21:03] Speaker 00:
Garcia is not controlling.

[00:21:05] Speaker 00:
It is not helpful to his case.

[00:21:07] Speaker 00:
In Garcia, the arrestee had two forms of ID on him.

[00:21:11] Speaker 00:
That wasn't the case here.

[00:21:12] Speaker 00:
The appellant in this case had the only ID on him was for Devon Robinson.

[00:21:20] Speaker 00:
That's why he was booked as Devon Robinson in Las Vegas.

[00:21:23] Speaker 00:
In Garcia, the difference was 9 inches and 40 pounds heavier.

[00:21:30] Speaker 00:
So Garcia is not as helpful in this case as my colleague on the other side suggests.

[00:21:38] Speaker 00:
I also would like to point out Cameron versus Brown, Ninth Circuit, where the plaintiff did not match the physical description of the female perpetrator provided by the witness and had a height and weight difference of 6 inches and 15 pounds.

[00:21:53] Speaker 00:
In there, the court held that a reasonable jury could find that a height difference of six inches for a woman is, at a minimum, a red flag and should have led officers to question whether the person described in the incident was the plaintiff.

[00:22:08] Speaker 00:
That case, again, was decided under the facts of differences in height for women.

[00:22:15] Speaker 00:
But the district court did consider that.

[00:22:17] Speaker 01:
Let me ask you this.

[00:22:19] Speaker 01:
If we disagree with you and find that Garcia is the clearly established law, given the record here, are there factual issues that would require this case to go to trial rather than be resolved on summary judgment?

[00:22:34] Speaker 00:
Well, it's my position that there are no factual issues that prevent summary judgment from being granted.

[00:22:40] Speaker 01:
Well, the height difference, the height difference, the weight difference, the repeated protestations, I'm talking about the booking.

[00:22:48] Speaker 00:
Yes, yes, yes.

[00:22:49] Speaker 01:
The booking officer now, the protestations on mistaken identity.

[00:22:53] Speaker 00:
Right, right.

[00:22:54] Speaker 00:
Well, keep in mind.

[00:22:55] Speaker 01:
Are those questions a fact that the jury decide well?

[00:22:57] Speaker 01:
I think a reasonable booking officer would have followed up on this.

[00:23:01] Speaker 00:
Right.

[00:23:02] Speaker 00:
The important point to remember is that in cases of mistaken identity, the court in Rivera versus the County of Los Angeles has said that in these cases of mistaken identity, where there is a requirement to conduct further investigation, which would, as your honor suggests, be a question of fact for the jury.

[00:23:23] Speaker 00:
In those cases, there's usually significant physical differences.

[00:23:28] Speaker 00:
I submit that these physical differences, while they exist,

[00:23:31] Speaker 00:
are not significant and taken in the context of the rest of the information.

[00:23:36] Speaker 01:
But the physical differences, I think there's something there.

[00:23:38] Speaker 01:
Maybe it's on the edge of whether it should go to the jury.

[00:23:41] Speaker 01:
But you're facing somebody who's saying, this is not me, right?

[00:23:45] Speaker 01:
The mom's coming in, providing identifications.

[00:23:50] Speaker 01:
As to the mom... We have to look at those facts as well.

[00:23:53] Speaker 00:
Yes.

[00:23:54] Speaker 01:
As to the mom... In doing them in the plaintiff's favor.

[00:23:57] Speaker 00:
Yes.

[00:23:57] Speaker 00:
And as to the mom, let me address that really quick.

[00:24:00] Speaker 00:
So remember,

[00:24:01] Speaker 00:
that after the appellant came to Kern County, he had his arraignment on, I believe, January 2nd or 3rd.

[00:24:07] Speaker 00:
After that point, when a judge has found that this is this person, the duty to investigate is severely reduced because a court has found that this person is being held on probable cause.

[00:24:24] Speaker 00:
So assuming taking the facts in the light most favorable to the appellant

[00:24:29] Speaker 00:
that the mother did come and complain, a court order already existed that he was Devon Robinson.

[00:24:36] Speaker 00:
And back to your point as to whether there's factual facts that mandate that this case go to the jury and back to Brandi Herold, keep in mind that we have to look at this in the context of what case law requires.

[00:24:51] Speaker 00:
And claims of misidentity are common in the jailhouse setting.

[00:24:56] Speaker 00:
As the court said in Rivera versus County of Los Angeles, claims of innocence are common and unsupported claims of mistaken identity by themselves do not trigger a duty to investigate further.

[00:25:08] Speaker 00:
Now, of course, there were other facts here besides the claims of identity, but Farber versus City of Los Angeles said that Farber's protests of mistaken identity do not make the officer's belief unreasonable.

[00:25:20] Speaker 00:
So we have to, and let me also point out that Rivera versus County of Los Angeles also said

[00:25:26] Speaker 00:
that claims of innocence are common in jails.

[00:25:29] Speaker 00:
A jailer need not independently investigate all uncorroborated claims of innocence if the suspect will soon have the opportunity to assert his claims in front of a judge.

[00:25:40] Speaker 00:
Hill versus California, the US Supreme Court said, aliases and false identifications are not uncommon.

[00:25:47] Speaker 00:
So for Brandi Herold, the obligation was not on her to run the appellate

[00:25:54] Speaker 00:
asked for Appellant's fingerprints to run.

[00:25:56] Speaker 00:
It's uncontested that Brandi Herold did not have that ability.

[00:26:00] Speaker 00:
She's a booking clerk, but presumably she could have asked someone to run his fingerprints.

[00:26:05] Speaker 00:
But the fact that he was booked as Devon Robinson, aka Charles Hayes, if he was making that claim of mistaken identity, it was reflected right there.

[00:26:18] Speaker 00:
Second of all, let's keep in mind the similar physical characteristics.

[00:26:22] Speaker 00:
both black men, both black hair, brown eyes, similar age.

[00:26:28] Speaker 00:
Their age difference was only three years.

[00:26:34] Speaker 00:
And that's from the Robinson was born in 1988 and the appellant was born in 1991.

[00:26:42] Speaker 00:
The booking photo of the appellant in Las Vegas showed hair just below his shoulders.

[00:26:49] Speaker 00:
in dreadlock braids.

[00:26:51] Speaker 00:
The driver's license photo of Robinson showed hair just above his shoulders in dreadlock braids.

[00:26:58] Speaker 00:
So those are very similar physical characteristics.

[00:27:01] Speaker 00:
So when talking about the differences, we also have to look at the similarities.

[00:27:05] Speaker 00:
Before my time expires, I did want to address the point of qualified immunity.

[00:27:10] Speaker 00:
I submit that that is most certainly waived.

[00:27:13] Speaker 00:
As I pointed out in my brief,

[00:27:16] Speaker 00:
Issues must be argued distinctly and specifically in the party's opening brief in order to obtain review.

[00:27:23] Speaker 00:
Qualified immunity was decided by the district court and was not addressed at all in appellant's opening brief.

[00:27:30] Speaker 03:
What was the district court's decision on qualified immunity?

[00:27:34] Speaker 00:
The district court reasoned that the

[00:27:40] Speaker 00:
All of the individual defendants were entitled to qualified immunity based on essentially the same analysis that the case law analysis that the district court did shows that there is no case on point that would put these individual defendants on notice that the actions they were taken would infringe on the appellant's 14th Amendment rights.

[00:28:05] Speaker 00:
And I do want to also address the Monell point very quickly.

[00:28:09] Speaker 00:
Your Honor's correct that there's a dearth of support in the record for policy or procedure.

[00:28:15] Speaker 00:
Appellant's brief does talk about training.

[00:28:20] Speaker 00:
As the court's well aware, a Monell case on training is the most difficult to sustain, and there was no discovery done.

[00:28:29] Speaker 00:
There was no deposition of a training officer.

[00:28:31] Speaker 00:
So the Ninth Circuit in the Las Vegas case, I want to point out, did find

[00:28:38] Speaker 00:
It obviously ruled in favor of all the Las Vegas defendants, and it stated since there was no constitutional violation, that they didn't have to address the Menell claim.

[00:28:48] Speaker 00:
And I suggest this court can do the same.

[00:28:51] Speaker 00:
I'd ask the court to sustain the grant of summary judgment.

[00:28:54] Speaker 00:
Thank you so much.

[00:28:55] Speaker 00:
Thank you.

[00:29:05] Speaker 02:
So I'll start my time again.

[00:29:07] Speaker 02:
And the question about the qualified immunity is that the court's exact ruling is found is that, as discussed above, the court finds that no reasonable jury could find plaintiff's Fourth Amendment rights violated.

[00:29:19] Speaker 02:
Therefore, the qualified immunity applies.

[00:29:21] Speaker 02:
And that's indicative of why this court can reverse and consider the qualified immunity by applying the case law mentioned in the brief and mentioned in oral argument.

[00:29:33] Speaker 02:
One I would next answer the question

[00:29:36] Speaker 03:
But why shouldn't we conclude that you waived any argument on qualifying immunity?

[00:29:42] Speaker 03:
Because you never raised it.

[00:29:43] Speaker 02:
Because I argued that there was no analysis to argue as it relates to the court, other than saying the court's decision was based on no constitutional violation.

[00:29:54] Speaker 02:
And now on appeal, seeing this matter on de novo, its appellant's position is that on appeal, challenging that there was a constitutional violation,

[00:30:05] Speaker 02:
inherently challenges the court's decision.

[00:30:08] Speaker 02:
To one point, the statement is dicta.

[00:30:12] Speaker 02:
And also I want to make sure that I answer the question about the policies.

[00:30:16] Speaker 02:
I'd like the court to look through 261 to 262 as it relates to Kern County's deficient policies, as it relates to what they do not allow as requiring its officers to do.

[00:30:27] Speaker 02:
In regards to the

[00:30:32] Speaker 02:
driver's license, this court should not give credence to that because there's nothing in the record that shows any statement that there was a renewal of this evidence.

[00:30:42] Speaker 02:
There's nothing about the driver's license.

[00:30:43] Speaker 02:
The driver's license being reissued does not mean someone applied.

[00:30:47] Speaker 02:
And there's nothing in the record that said he applied and put this information there.

[00:30:50] Speaker 02:
And it would be simply hearsay.

[00:30:54] Speaker 02:
Nothing.

[00:30:54] Speaker 02:
Thank you.

[00:30:55] Speaker 01:
All right.

[00:30:56] Speaker 01:
Thank you very much for your very helpful arguments today The matter is submitted and will issue a decision in this case in due course that concludes our calendar for the week court is adjourned All rise This court for this session stands adjourned