[00:00:00] Speaker 01:
The next case on our docket is Renee Reese versus Ryan Polar that's been submitted on the briefs and so proceeding to the next case which is Joshua Aaron Holloman versus City of Los Angeles if the council could please come forward.

[00:00:56] Speaker 01:
Whenever you're ready to proceed, Mr. Bashton.

[00:00:59] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:01:02] Speaker 04:
I'm Robert Bashton.

[00:01:03] Speaker 04:
I'm here with my co-counsel, Marina Ardini, and we're here representing Joshua Aaron Hollman, who is present here today.

[00:01:17] Speaker 04:
I'd ask for three minutes for rebuttal.

[00:01:23] Speaker 04:
I'd like to begin

[00:01:25] Speaker 04:
Before I get into the issues of Gonzalez and the Yevys and all the several other moving parts in this brief, I'd like to start with just the issue of chalk and the absence of malice with apologies to Newman.

[00:01:46] Speaker 04:
I would suggest that the act

[00:01:48] Speaker 04:
that Mr. Holloman engaged in of protected speech using removable chalk on a public sidewalk or a concrete driveway next to it outside a public building never ever evidences malice for purposes of Penal Code 574A with which he was charged.

[00:02:17] Speaker 04:
In other words,

[00:02:18] Speaker 04:
Back when McKinney in the Ninth Circuit said that no reasonable person could think that writing with chalk would damage a sidewalk, it was kind of understood that chalk was permissive expressive conduct.

[00:02:35] Speaker 04:
Now, obviously, the law changed a little bit.

[00:02:38] Speaker 04:
It tweaked a little bit since McKinney.

[00:02:41] Speaker 04:
But in that interim time, there didn't seem to be any dispute about that, and it didn't seem to be

[00:02:47] Speaker 04:
any arrests occurring when that occurred, much less a misdemeanor arrest or a felony arrest in this case.

[00:02:57] Speaker 04:
So what I would ask the court to consider is whether or not, in light of the changes in PC574A, actually the law needs a clear statement from this court.

[00:03:12] Speaker 04:
The officers that would make arrests under this section

[00:03:15] Speaker 04:
Need a clear statement from this court that it is unreasonable for purposes of the First Amendment.

[00:03:23] Speaker 04:
It's over broad to interpret the idea of malice as being

[00:03:31] Speaker 04:
Spraying chalk on on public property now you'll notice mr.. Bastian.

[00:03:37] Speaker 05:
I'm struggling to understand Are you this wasn't an issue that was raised in your brief?

[00:03:42] Speaker 05:
Are you asking us to opine on?

[00:03:44] Speaker 04:
The wisdom of the California's legislature's decision to add chalking as a form of vandalism nope not at all what I'm suggest what I'm suggesting is Well first of all

[00:03:57] Speaker 04:
The 574 does not expressly mention chalk.

[00:04:03] Speaker 04:
But that statute, when it's interpreted properly, could be used for chalk.

[00:04:11] Speaker 04:
And I would give an example of a case where malice would be present in the situation.

[00:04:20] Speaker 04:
And it wouldn't be ruled out in a case such as this.

[00:04:24] Speaker 04:
For example, if somebody

[00:04:28] Speaker 04:
wrote in chalk outside a courthouse, juror number six, I sure hope nothing bad happens to your daughter, that would not be protected speech.

[00:04:40] Speaker 04:
And that on its face would be malicious.

[00:04:43] Speaker 04:
So you could arrest that person even if it was written in chalk.

[00:04:47] Speaker 04:
But not Black Lives Matter, not Power to the People.

[00:04:51] Speaker 04:
That's protected speech.

[00:04:53] Speaker 04:
That's the difference.

[00:04:54] Speaker 04:
That's why what he's doing isn't malicious.

[00:04:57] Speaker 04:
And that's why when the officer in his arrest report says, well, I thought it was malicious because A, he didn't ask for permission, and B, he had gloves on.

[00:05:07] Speaker 04:
That is not a coherent interpretation.

[00:05:10] Speaker 02:
So in your view, you want us to rule that somehow the content of the message has to be malicious?

[00:05:18] Speaker 02:
I mean, even if you covered a building

[00:05:21] Speaker 02:
garish covered chalk that couldn't be malicious if the content of the message wasn't malicious?

[00:05:27] Speaker 02:
I'm not sure I understand what you're arguing.

[00:05:29] Speaker 04:
What I'm suggesting is that, yes, in certain cases, if the content is not protected speech, if it's not protected speech, like the example I just gave,

[00:05:43] Speaker 04:
Then it would be okay to arrest somebody for using chalk in what is otherwise considered to be a protected place.

[00:05:50] Speaker 04:
Now it's not a time manner place restriction that we're talking about.

[00:05:55] Speaker 04:
We're talking about a subjective element.

[00:05:57] Speaker 04:
And I would suggest to you that same malice portion of 574 that protected speech of Mr. Holloman protected the children

[00:06:08] Speaker 04:
when they were doing chalk in the turnabout on the other side of the police station.

[00:06:16] Speaker 01:
This is how you really want to spend your time on which is I think valuable and there's questions regarding Gonzales and Valentine But let me just go ahead and ask you a question on what you are choosing to spend your time on And that is I mean the children apparently according to the police had asked for permission Does that not make a difference and does that not go enter into the equation on whether it was?

[00:06:41] Speaker 01:
malicious or unwelcome

[00:06:43] Speaker 04:
Well, may I draw a distinction?

[00:06:44] Speaker 04:
The children in the roundabout behind the police station did not ask for permission.

[00:06:49] Speaker 04:
They just used chalk.

[00:06:51] Speaker 04:
But it's just assumed that that's not a violation of law, even though the only difference between the chalk being used there, because it's concrete right outside a police station, and the chalk that Mr. Holliman is using is concrete right outside a police station.

[00:07:08] Speaker 04:
But he's the one that's getting arrested.

[00:07:11] Speaker 04:
What I'm suggesting for purposes of the Fourth Amendment then is that they did not have probable cause because his speech was protected and that's not malice.

[00:07:21] Speaker 04:
That cannot be malice in the state of California if it is and that statute is being interpreted over broadly.

[00:07:30] Speaker 05:
So if a protester comes to the Ninth Circuit

[00:07:33] Speaker 05:
wall of this building and write something that is not a criminal threat, they cannot be arrested for vandalism because they don't have criminal malice?

[00:07:44] Speaker 04:
Well, I don't think the wall has ever been considered public space the way the sidewalk has.

[00:07:50] Speaker 05:
But I mean, as I understand in this case and looking at the video, it was not just a sidewalk, it was on the police station as well.

[00:07:59] Speaker 04:
I would say it was maybe two, three or four steps at most.

[00:08:05] Speaker 05:
It was right outside the steps of the police station.

[00:08:07] Speaker 04:
There was the sidewalk and the concrete of the sidewalk merged and that was where people would walk to the entrance of the police station.

[00:08:18] Speaker 04:
So that was out front.

[00:08:20] Speaker 04:
It wasn't on the wall of the police station.

[00:08:23] Speaker 04:
So, yeah, I think it would be different if somebody engaged in chalk outside the appellate court on the sidewalk.

[00:08:32] Speaker 04:
Yes, then I think they would have that right unless a time-place manager restriction had been created ahead of time, such as happened in Washington, D.C., outside the White House.

[00:08:44] Speaker 01:
Council, I think the children left pinecone art, not chalking.

[00:08:50] Speaker 04:
Two different events.

[00:08:52] Speaker 04:
The pinecones were in front on top of the pedestal next to the station.

[00:08:57] Speaker 04:
The chalk on the turnabout was in back of the police station.

[00:09:03] Speaker 04:
Two different events.

[00:09:05] Speaker 01:
So what I was making... That was going on at the same time as your client doing the chalking?

[00:09:11] Speaker 04:
No, the chalking in the turnabout was something that we found out about later and took photographs and put it into evidence.

[00:09:20] Speaker 01:
Can I ask you about Gonzalez?

[00:09:22] Speaker 01:
I think that was a Supreme Court case that seems to make clear when a plaintiff conducts research and review of previous arrest data that that kind of evidence, I think they refer to it as survey,

[00:09:40] Speaker 01:
is permissible type of evidence for consideration of whether the Nieves exception applies here.

[00:09:46] Speaker 01:
And so if you could focus some of your time, you have about 3 minutes left before your rebuttal on that.

[00:09:54] Speaker 01:
I recognize that the district court and you didn't have the helpful guidance provided by Gonzalez at the time that you opposed the defendant's motion for summary judgment, would it be

[00:10:11] Speaker 01:
What's the proper course for us now that Gonzales, I think, sheds some light on how we should maybe remand this to the District Court based in light of some of its findings?

[00:10:25] Speaker 04:
Well, sure.

[00:10:26] Speaker 04:
The District Court basically did the Fifth Circuit's pre-Gonzales in the Supreme Court standard and basically said because the plaintiffs were

[00:10:38] Speaker 04:
plaintiff was unable to provide any comparables, any single incident in which somebody had chalked and the police elected not to arrest, that that was dispositive of the case.

[00:10:52] Speaker 04:
And all the evidence that the appellant had provided were no, and that's because it

[00:11:00] Speaker 04:
Almost never happens and we we we did the depositions of the office of beauty Beautification for the city and then the new horizon new directions for youth Person that that gets these things and what she said is over the last 15 years she gets 30 to what 100

[00:11:23] Speaker 04:
incidents, complaints, or orders to go out and clean.

[00:11:28] Speaker 04:
And she can't remember a single time, a single time, that anybody ever needed a cleanup of chalk.

[00:11:36] Speaker 04:
And then the Office of Beautification, he's the one responsible for going in to testify in cases.

[00:11:44] Speaker 04:
And over the last eight years, he said he's never had an incidence where he has gone in

[00:11:50] Speaker 04:
and been asked to testify in a case that there was misdemeanor or felony damage because of the use of chalk.

[00:11:59] Speaker 05:
Can I ask counsel, because this was the district court's point, is that that

[00:12:05] Speaker 05:
was not strong enough evidence in his view because it doesn't speak to whether people have been arrested for vandalism talking as opposed to felony prosecutions for them.

[00:12:20] Speaker 05:
And isn't that an important distinction?

[00:12:24] Speaker 04:
Well, no, I don't think so because the Supreme Court basically said that any objective evidence could be used.

[00:12:31] Speaker 04:
And he was excluding all the other objective evidence that we were providing.

[00:12:35] Speaker 05:
I wondered how did he exclude it because he has a footnote where he talks about where he thinks the right comparison is someone who chalks in a police station.

[00:12:46] Speaker 05:
But at the end of the footnote he says, but even if that's not the right comparison, he still found the evidence to be too weak to establish the exception.

[00:12:54] Speaker 05:
And he's analyzing this testimony from this witness.

[00:12:59] Speaker 05:
So I don't see it as excluding this evidence.

[00:13:01] Speaker 05:
He's considering it and not finding it weak.

[00:13:04] Speaker 05:
So why do you think that he was only relying on direct comparator evidence as the only way to resolve this issue?

[00:13:12] Speaker 04:
Well, first of all, if you're going to use that footnote and the court says that he thinks the evidence is too weak, that sounds to me like he's evaluating evidence that, at this stage of the proceeding, is evidence that should be viewed in the light most favorable to the non-moving party, which would be Plankton Holloman.

[00:13:30] Speaker 04:
And then, as I just expressed to you,

[00:13:34] Speaker 04:
What formerly prior to Gonzalez was considered not evidence, now when you look at the fact that we can't find another case where somebody was arrested under similar circumstances.

[00:13:52] Speaker 04:
The example that you heard earlier in the argument earlier today that the Supreme Court uses that, OK, it would be like

[00:14:05] Speaker 04:
It would be like arresting somebody in the middle of the country for jaywalking.

[00:14:13] Speaker 04:
Would it be not surprising that you can't even find cases where somebody is arrested in the middle of the country for jaywalking?

[00:14:21] Speaker 04:
And this is the same similar thing.

[00:14:24] Speaker 04:
Finally, because I know that I'm running low on time,

[00:14:27] Speaker 04:
I'd love to address the Kia Verini case, because the Kia Verini case that the Supreme Court handed down the same day as Gonzalez basically says that there's a separate cause of action for the felony charge against him.

[00:14:45] Speaker 04:
But for that felony charge, he would not have been kept.

[00:14:49] Speaker 04:
until after midnight the next day.

[00:14:52] Speaker 04:
He wouldn't have been kept those nine hours.

[00:14:54] Speaker 04:
He wouldn't have had to hit the higher bail.

[00:14:57] Speaker 04:
And he wouldn't have had to be reporting a felony arrest.

[00:15:00] Speaker 04:
And that cause of action stands separately from the false arrest claim, which we suggest does meet the Navy's exception.

[00:15:11] Speaker 04:
And I don't have time to get to the state stuff, but I'll answer any questions if you want.

[00:15:19] Speaker 01:
We have 41 seconds left, so.

[00:15:21] Speaker 04:
Thank you.

[00:15:21] Speaker 01:
Thank you.

[00:15:23] Speaker 01:
Council?

[00:15:36] Speaker 00:
Good morning, Your Honours.

[00:15:37] Speaker 00:
May it please the court?

[00:15:38] Speaker 00:
Brian Chang, Deputy City Attorney, on behalf of the appellees in this case, all of which are related to the City of Los Angeles, including the police officers.

[00:15:50] Speaker 00:
In this case, what we have is a rather clear and simple situation of police officers witnessing a crime in progress and making an arrest.

[00:16:02] Speaker 00:
Now in this case, the crime was rather brazen

[00:16:05] Speaker 00:
The crime took place on police station property, in broad daylight, and in plain view of the police officers.

[00:16:13] Speaker 05:
Mr. Turing, just to clarify that point, because council suggests that it was on the sidewalk in front of the police station, but you're saying it's on police station property itself, or was a portion of it on the sidewalk as well, or can you clarify that from your point of view?

[00:16:31] Speaker 00:
Sure, there's no question, and I'm talking about the video evidence in this case, which is what I believe both parties believe that your honor should rely on for deciding what facts happened in this case.

[00:16:45] Speaker 00:
There's no question that Mr. Holloman included the pedestal of the police station sign in his vandalism.

[00:16:56] Speaker 00:
Graffiti was definitely sprayed with spray chalk

[00:17:01] Speaker 00:
on the pedestal of the police station sign, as well as elsewhere.

[00:17:05] Speaker 00:
And as long as I'm talking about spray chalk, I would like to make that distinction, Your Honors.

[00:17:11] Speaker 00:
The briefs of Mr. Holloman continually and repeatedly talk about chalk.

[00:17:22] Speaker 00:
The cases that talk about chalk, by and large talk about handheld chalk that we're all used to.

[00:17:28] Speaker 00:
This is spray chalk.

[00:17:30] Speaker 00:
It's different.

[00:17:31] Speaker 00:
It comes in a metal container.

[00:17:33] Speaker 00:
It sprays out.

[00:17:35] Speaker 00:
There's instructions on the containers that say that if it's left out in the sun too long, it becomes difficult to remove.

[00:17:41] Speaker 00:
The officers in this case testify that they had never even heard of spray chalk before.

[00:17:46] Speaker 00:
I have also never heard of spray chalk before in this case.

[00:17:48] Speaker 02:
Does the testimony or statement from Jerry Valido, would that encompass, I guess, spray chalk if it had ever been used before?

[00:18:01] Speaker 02:
I mean, when he says that he doesn't know of prosecutions for this, I mean, wouldn't that encompass any possible prosecutions for spray chalking?

[00:18:09] Speaker 02:
I suppose it would.

[00:18:10] Speaker 00:
I don't know if that ever has been used before.

[00:18:13] Speaker 00:
Now, I do realize that in his argument, my friend says that arrests for

[00:18:27] Speaker 00:
Chalking almost never happens.

[00:18:29] Speaker 00:
I would submit that Mr. Holloman's actions of vandalizing a police station purposely in broad daylight in front of police officers almost never happens as well.

[00:18:42] Speaker 05:
Let me ask about Gonzalez.

[00:18:45] Speaker 05:
The Supreme Court makes clear that you don't need to have just direct comparator evidence, that other forms of objective evidence should come in.

[00:18:55] Speaker 05:
And some evidence can be harder to come by than others.

[00:18:58] Speaker 05:
And it seems to me at least that evidence of arrests based on chalking or spray chalking is relevant.

[00:19:06] Speaker 05:
Is that evidence available or was that evidence available to the parties?

[00:19:13] Speaker 00:
was certainly not presented by Mr. Holliman, who because probable cause exists in this case for an arrest for vandalism, the burden shifts to him to present such evidence.

[00:19:24] Speaker 00:
Now, if I may stay on the topic of the Gonzalez case, Gonzalez did not overrule or supplant Nieves.

[00:19:36] Speaker 00:
Gonzalez simply said that the Fifth Circuit did not apply the Nieves test correctly.

[00:19:44] Speaker 00:
And then the Gonzales court sent the case back to the lower courts to determine if this evidence satisfied the Nieves test when it's applied correctly.

[00:19:55] Speaker 00:
So certainly, if the immediate.

[00:19:57] Speaker 01:
Well, there was a comment there that said it's not limited to direct comparator evidence.

[00:20:05] Speaker 01:
And I think the understanding was something

[00:20:08] Speaker 01:
people, I think of Nieves before that, was that it had to be direct comparator evidence.

[00:20:14] Speaker 01:
So it sort of opens the door here to question whether or not, now in light of Gonzalez making that statement, I don't know if you agree with that statement or not, that you can consider more than direct comparator evidence.

[00:20:37] Speaker 00:
With respect, what the Gonzales case actually says is that, quote, virtually identical and identifiable comparators is not necessary from the Nieves test.

[00:20:51] Speaker 00:
Virtually identical.

[00:20:53] Speaker 00:
Now, the Nieves test still requires similarly situated individuals.

[00:21:00] Speaker 00:
And the first paragraph of the Gonzales opinion

[00:21:07] Speaker 00:
explains that the Nieves test requires that, but simply that the Fifth Circuit did not properly apply the principle.

[00:21:18] Speaker 02:
Why can't we infer from Felito's testimony that there haven't been prosecutions for use of chalk, that there also haven't been arrests?

[00:21:28] Speaker 02:
Why can you not infer that?

[00:21:30] Speaker 02:
Right.

[00:21:31] Speaker 02:
I mean, I assume that you would say that we can't, and why not if we can't?

[00:21:35] Speaker 02:
Why is his testimony not the kind of testimony that the court should be taking into account under Nieves and Gonzalez?

[00:21:43] Speaker 00:
Well, the court did take it into account, but simply found that it was not the type of evidence that Nieves requires.

[00:21:54] Speaker 00:
Your view is that the court thought that this evidence from valido is not the type of evidence that's permissible to consider under nevis It's not objective evidence that shows that other similarly situated individuals were not arrested in similar circumstances when they did the same or similar actions, but without the

[00:22:22] Speaker 05:
Then it sounds like you're agreeing with the counsel on the opposing side that the court was applying a direct comparator framework for analyzing the Nieves exception.

[00:22:38] Speaker 01:
Virtually identical is not required similarly situated you're saying that's all the supreme court said in Gonzales is that it just Clarified that it doesn't have to be virtually identical You don't think it opened the door to more evidence like surveys or anything else That's your view of Gonzales

[00:23:02] Speaker 00:
Gonzalez simply found that the Fifth Circuit did not apply the Nevis test correctly.

[00:23:07] Speaker 01:
But it made a comment regarding the comparator evidence.

[00:23:11] Speaker 01:
And it seemed to leave the door open to more than what I think you're trying to argue, that it was only virtually similarly comparative evidence.

[00:23:27] Speaker 01:
I'm confused by what your view of Gonzalez.

[00:23:31] Speaker 00:
The reason that the valido evidence was not sufficient for the Nieves test is that that testimony only dealt with trials.

[00:23:41] Speaker 00:
He said he never had testified in a criminal trial that dealt with chalking vandalism.

[00:23:49] Speaker 00:
And the reason that that doesn't

[00:23:52] Speaker 00:
That is insufficient evidence for arrests is because, as we all know, the vast majority of criminal cases, they fall short of trial.

[00:24:02] Speaker 00:
And they're resolved short of trial.

[00:24:05] Speaker 00:
So the fact that, even in this case, Mr. Holloman did not go to trial.

[00:24:09] Speaker 00:
So even in this case, where we know he was arrested for a chalking vandalism,

[00:24:16] Speaker 05:
Mr.. Valido would not have testified in this case so that evidence is a diversion to arrests Okay, okay now I understand your answer, but but then if that if that's the case and it's not that the only evidence he can look at is someone who was arrested for Chalking a police station Correct a party can come in with other objective evidence to see if it meets the criteria for for the nevis exception and

[00:24:42] Speaker 05:
And that might include, for example, you know, we had a recent case, Ballantine, where you had direct comparator evidence of people chalking in front of a police station and in front of the state court, the courthouse.

[00:24:54] Speaker 05:
and evidence that other chalkers were never arrested, even if they were chalking at the same time.

[00:25:01] Speaker 05:
So, you know, you had elements of both.

[00:25:06] Speaker 05:
And I guess what I'm trying to understand, and I think my colleagues as well, is what do we make of the Valido evidence and whether we can infer from that that people don't get arrested for it, even if they're not prosecuted for vandalism, for chalking.

[00:25:24] Speaker 00:
So in Ballantyne, of course, that satisfies the neavis test.

[00:25:28] Speaker 00:
We're talking about people, they're doing the same activity at the same time without the political speech and they were not arrested.

[00:25:37] Speaker 00:
Obviously, that is proper evidence under the neavis test.

[00:25:43] Speaker 05:
But the court also relied on a second category, which were that people weren't arrested for this sort of activity.

[00:25:51] Speaker 05:
There was no evidence in the record of any arrests for it, too.

[00:25:54] Speaker 00:
You mean in Gonzalez?

[00:25:55] Speaker 05:
No, in Ballantine.

[00:25:58] Speaker 05:
In Ballantine, the court did not rely only on the fact that there were other chakras who were not arrested.

[00:26:04] Speaker 05:
The court also observed that there was no evidence of anyone ever getting arrested for this sort of thing.

[00:26:12] Speaker 00:
So in this particular case at hand, I highly doubt that we'd be able to find someone who was arrested for virtually identical activity, which is not what the test would be anyway, because who would do something like this?

[00:26:27] Speaker 00:
But the virtually identical is not needed, but similarly situated is.

[00:26:39] Speaker 00:
So let's take this case for example.

[00:26:43] Speaker 00:
We probably won't find someone who was.

[00:26:45] Speaker 01:
But Gonzales said that survey evidence was permissible.

[00:26:48] Speaker 00:
Yes.

[00:26:49] Speaker 01:
OK.

[00:26:50] Speaker 01:
So was there survey evidence here?

[00:26:55] Speaker 01:
Is that Bolido?

[00:26:57] Speaker 01:
Could there have been more survey that could have been done?

[00:26:59] Speaker 01:
Do we need to let them figure that out, go back to the district court, and figure that out?

[00:27:05] Speaker 01:
Because I don't know that you're accounting for that.

[00:27:08] Speaker 00:
Well, they had their chance to come up with the evidence to... I know, but they didn't know about Gonzalez before.

[00:27:13] Speaker 01:
Gonzalez came out afterwards.

[00:27:16] Speaker 01:
And had they known about Gonzalez, could they have gotten more police records or arrest records or surveys or anything like that?

[00:27:26] Speaker 01:
That's my question because Gonzalez seems to have changed this a little bit, filled it out a little bit more, loosened it up somewhat.

[00:27:36] Speaker 05:
In other words, does the police have records of arrests that would either clarify one way or the other whether people get arrested for spray chalking vandalism, whether it's at a police station or elsewhere in a more general survey type way that might illuminate for the district court what to do here?

[00:28:00] Speaker 05:
Is that evidence out there?

[00:28:05] Speaker 00:
Don't know whether it's out there.

[00:28:07] Speaker 00:
It certainly was not presented in this case the point in Gonzales is that that type of evidence where it's this It's a similar crime and people were not arrested that evidence did not exist in the in this case at hand the Mr.. Hallman did not present that type of evidence and Objective evidence on arrest so for example if we take a step back from the

[00:28:34] Speaker 00:
requiring identical evidence, which Gonzales is not required.

[00:28:38] Speaker 00:
It never was.

[00:28:40] Speaker 00:
Never was required.

[00:28:42] Speaker 00:
So let's even say it doesn't have to be someone actually vandalizing a police station.

[00:28:48] Speaker 00:
Simply committing vandalism in front of police officers that are witnessing it.

[00:28:53] Speaker 00:
Mr. Hollman does not present any evidence that that happens.

[00:29:02] Speaker 00:
with content neutral graffiti, and the police officers decide not to arrest that person.

[00:29:10] Speaker 00:
Similarly situated, not identical, and no arrests made.

[00:29:16] Speaker 00:
Mr. Holloman does not present any evidence of that type of situation.

[00:29:23] Speaker 05:
Let me ask you this, one thing that's unclear in my mind.

[00:29:26] Speaker 05:
We're reviewing this, I guess, from summary judgment.

[00:29:31] Speaker 05:
And we have this Neves exception in the court.

[00:29:34] Speaker 05:
You know, post-Gonzalez, the district courts will play a gatekeeping role in this.

[00:29:40] Speaker 05:
Do we, is that a legal question that the district court would decide the strength of the evidence for the Nevis exception to apply?

[00:29:49] Speaker 05:
Or is that a tribal issue that a jury would have to determine whether the Nevis exception should apply or not, and then proceed with the rest of a First Amendment retaliation claim?

[00:30:02] Speaker 00:
The Nevis test, although it does require evidence,

[00:30:10] Speaker 00:
Then the evidence test is a legal question.

[00:30:15] Speaker 05:
So in your view, it's a legal question.

[00:30:17] Speaker 05:
The court will evaluate the evidence and decide if there's enough there to proceed with a First Amendment retaliation claim, and then that gets decided by a jury.

[00:30:26] Speaker 05:
But that's not subject to our summary judgment standards that we would normally apply about whether there's a tribal issue here or not.

[00:30:35] Speaker 00:
The tribal issue applies to findings of fact.

[00:30:38] Speaker 00:
So the evidence that would be presented in the Nevis test would go towards the legal finding of whether the Nevis test is met.

[00:30:51] Speaker 00:
Okay.

[00:30:51] Speaker 00:
Thank you.

[00:30:52] Speaker 00:
Would Your Honor like me to address the issue of maliciousness at all?

[00:30:54] Speaker 01:
Thank you.

[00:30:56] Speaker 01:
Thank you.

[00:31:02] Speaker 01:
And no, if you ask me about maliciousness, no.

[00:31:05] Speaker 01:
Thank you.

[00:31:08] Speaker 01:
You have a minute.

[00:31:09] Speaker 01:
I'll give you a minute, and then you're 36 seconds.

[00:31:11] Speaker 01:
Thank you.

[00:31:12] Speaker 04:
In the matter of Gonzalez versus Trevino, after the court decided that it was unfair that Ms.

[00:31:20] Speaker 04:
Gonzalez was asked to come up with a comparative event, they basically said that the district court and the circuit court below was there.

[00:31:32] Speaker 04:
interpretation of what evidence would establish that was crimped, too crimped.

[00:31:36] Speaker 04:
That was their word.

[00:31:37] Speaker 04:
It's in the opinion.

[00:31:39] Speaker 04:
And that any objective evidence is potentially available.

[00:31:43] Speaker 04:
And then they remanded to the district, the circuit to the district court in the Fifth Circuit.

[00:31:50] Speaker 05:
So, yes, and those objective facts... Kessler, can I ask, did you ask for or seek arrest records?

[00:31:59] Speaker 04:
Oh, yes.

[00:32:00] Speaker 04:
I mean, that was, because we weren't getting anything, that was the main reason that we deposed those three persons, is we were trying to get any evidence somewhere that somebody's been arrested for chalking.

[00:32:13] Speaker 04:
And we weren't able to get it.

[00:32:15] Speaker 01:
And you weren't able to get it because why?

[00:32:17] Speaker 01:
I mean, I just want to get because you asked for it.

[00:32:20] Speaker 01:
No.

[00:32:20] Speaker 01:
And they said, we can't give it to you.

[00:32:22] Speaker 01:
Or they said it doesn't exist.

[00:32:24] Speaker 04:
If somebody had been arrested for chalking, there would have had to have been a cleanup afterwards.

[00:32:32] Speaker 04:
And it would have had to go through the people that we've deposed.

[00:32:35] Speaker 04:
And they said, it's never happened.

[00:32:38] Speaker 05:
But the people who do the cleanup won't know whether someone's been arrested for the chalking.

[00:32:45] Speaker 05:
I mean, I sense the challenge in trying to come up with this information, but what we're trying to find out is if we were to send this back, could you get access to records that are at least a little more illuminating about this issue or not?

[00:33:00] Speaker 03:
What would I do go through?

[00:33:01] Speaker 03:
every single... Well, it's up to you.

[00:33:04] Speaker 05:
You'd have to establish the... No one's telling you to do this, but if you want to establish an evidence exception and find similar situated people through survey evidence... It was a rhetorical question that I was phrasing, and the reason I was phrasing it like that is we are trying to solve this knot.

[00:33:18] Speaker 04:
It is... When it has never happened, it's hard to find it.

[00:33:25] Speaker 05:
Well, I mean, I will say intuitively,

[00:33:29] Speaker 05:
I understand counsel's point that if someone starts to go and chalk a police station in broad daylight in front of officers, it's a little bit hard to believe that they wouldn't be arrested regardless of whatever message is occurring.

[00:33:44] Speaker 05:
I mean, not just, you know, spray painting, spray chalking right on police property itself.

[00:33:51] Speaker 05:
Isn't that so?

[00:33:53] Speaker 04:
Well, except I don't think, you know,

[00:33:59] Speaker 04:
I don't think there's a comparator here.

[00:34:01] Speaker 04:
That's my point.

[00:34:02] Speaker 04:
If there isn't a comparator, you have to prove it through alternative means.

[00:34:07] Speaker 04:
And I think what you're asking me is, couldn't you do some more discovery and come up with a comparator?

[00:34:13] Speaker 04:
And that goes back to my point.

[00:34:17] Speaker 04:
If nobody's been arrested for jaywalking out in the country, searching for it is a fool's errand, which is why we look for objective facts through other sources that you can make inferences from.

[00:34:29] Speaker 04:
That it just hasn't happened.

[00:34:31] Speaker 04:
So if I went back and did more discovery, I could try to come up with ideas to prove even more ways that it hasn't happened.

[00:34:40] Speaker 04:
But I'm suggesting to you that it hasn't happened.

[00:34:44] Speaker 04:
But that doesn't rule out.

[00:34:46] Speaker 05:
So you don't think the comparative evidence is there for you?

[00:34:49] Speaker 04:
What I'm suggesting is we're not bound to comparative evidence in the light of the consensus.

[00:34:54] Speaker 04:
Sorry.

[00:34:55] Speaker 04:
Survey evidence.

[00:34:59] Speaker 04:
Possibly unless I haven't I mean Beyond your time, but I'm just having trouble understanding.

[00:35:07] Speaker 01:
What is your view of Gonzales?

[00:35:10] Speaker 01:
My view of Gonzales is is we are no longer bound to comparative evidence and if you've produced objective evidence all objective evidence or what's your is that what you're saying based on what's written in Gonzales because I think I Know the plaintiff conducts

[00:35:29] Speaker 01:
research and review previous arrest data, this survey is permissible type of evidence.

[00:35:36] Speaker 01:
We know that specific comparator evidence is not required, but it looks like it allows for survey evidence.

[00:35:43] Speaker 01:
I don't know, maybe you can make an argument for something else in light of Gonzalez.

[00:35:47] Speaker 01:
That's what I was hoping to hear today, and I haven't heard one thing about it until right now.

[00:35:51] Speaker 04:
Well, we need to produce objective evidence.

[00:35:54] Speaker 04:
Close to a survey is if you do a survey to find out whether or not

[00:35:59] Speaker 04:
if anybody has ever put in a request that's connected with a case.

[00:36:05] Speaker 04:
And what I would suggest, because of those three deponents, if there had been a case, it would have gone through them.

[00:36:13] Speaker 01:
OK.

[00:36:14] Speaker 01:
Thank you very much.

[00:36:15] Speaker 01:
Appreciate it.

[00:36:16] Speaker 04:
Thank you.

[00:36:17] Speaker 01:
Thank you both for your oral argument presentations.

[00:36:21] Speaker 01:
The case of Stephen Hubbard and Amy Back versus the city of San Diego is now submitted.