[00:00:01] Speaker 04:
Good morning and welcome to the Richard H. Chambers Courthouse here in Pasadena.

[00:00:07] Speaker 04:
It's a pleasure to be here.

[00:00:10] Speaker 04:
We have a number of cases on our docket, but some have been submitted on the briefs, including the first case listed.

[00:00:19] Speaker 04:
Marcella Ramirez Gregorio and Lucas Ramirez versus Pamela Bondi.

[00:00:26] Speaker 04:
That has been submitted on the briefs.

[00:00:29] Speaker 04:
So we're ready to proceed with the next case on our docket, Jolie Savage versus Paul Segura.

[00:00:36] Speaker 04:
Council's ready?

[00:00:37] Speaker 04:
You may come forward.

[00:00:46] Speaker 00:
Good morning.

[00:00:47] Speaker 00:
I am Nathan Oyster on behalf of the appellants in this appeal and it's an honor and a pleasure to be here before this panel.

[00:00:57] Speaker 00:
As you can see from the briefings, this matter relates to the important issue of qualified immunity.

[00:01:03] Speaker 00:
And this case arises from a unique factual situation where there was a pro-police vehicle caravan in the city of Whittier.

[00:01:14] Speaker 00:
At the same time, there were a group of anti-police protesters on foot, and the groups were interacting with one another.

[00:01:23] Speaker 00:
The officers from the Whittier Police Department were tasked with maintaining order, ensuring that both groups were able to express their First Amendment rights, and ensuring the safety of the people that were participating.

[00:01:37] Speaker 00:
So it was a planned event?

[00:01:39] Speaker 00:
It was a planned event by the group that was the pro-police caravan.

[00:01:47] Speaker 00:
They had planned it out.

[00:01:50] Speaker 00:
The Whittier Police Department had developed an operations plan as well.

[00:01:55] Speaker 00:
I think it was expected there could be counter protesters, but that part wasn't known definitively that there would be.

[00:02:05] Speaker 02:
And the street was closed off to a certain extent.

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The caravan could go through, but it was not the regular vehicle traffic that you would normally have.

[00:02:11] Speaker 00:
That's correct.

[00:02:13] Speaker 00:
And so at the time in question when Ms.

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Savage was arrested, you had a two-lane street where what was occurring was the vehicles in the caravan were driving on the left-hand side of the street where they normally wouldn't have been.

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And what the officers at that point were allowing

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the pedestrians to do was to maintain on the right hand side of the street so that both groups were able to express themselves.

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The issue occurred when Ms.

[00:02:43] Speaker 00:
Savage was in front of

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two consecutive vehicles that were in the caravan and stood in front of those vehicles for approximately two minutes preventing them from moving and proceeding on the street.

[00:03:00] Speaker 02:
She was not the only person to stand in front of vehicles, was she?

[00:03:04] Speaker 00:
In the totality of the day's events, she wouldn't have been.

[00:03:09] Speaker 00:
At that specific time period, she was the only person that was directly in front of vehicles.

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There were some other people around those two vehicles.

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She was the one that was directly in front.

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So what made her conduct different than the conduct of people who were standing in front of vehicles at other points in the day?

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What was it about her conduct that was problematic?

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It was the duration of time that she was standing in front of the vehicles and there was significantly heated rhetoric to the point where there's a concern that this could have escalated into physical contact between both

[00:03:54] Speaker 00:
anyone participating in the vehicle caravan and the pedestrians that were on foot.

[00:04:00] Speaker 02:
Why did the police try to intervene beforehand and give a warning and say, why don't you move off to the side, calm things down?

[00:04:07] Speaker 02:
Why was the arrest decision made?

[00:04:10] Speaker 00:
I think it's a fair question as to

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Optimally, could a warning have been given before the arrest?

[00:04:20] Speaker 00:
Yes.

[00:04:21] Speaker 00:
In which case, then I think there would be cleaner basis.

[00:04:25] Speaker 00:
for the arrest under penal code section 148A1 had the command been given and then she not follow it.

[00:04:34] Speaker 00:
As it is... I'll be honest, Ms.

[00:04:36] Speaker 02:
Royster.

[00:04:36] Speaker 02:
I'm struggling to understand what law you were relying on for probable cause to arrest because I think I've seen a half dozen different citations in the briefing in the court below or now.

[00:04:48] Speaker 02:
There are citations to the vehicle code, including inapposite ones that were laws passed after the incident.

[00:04:55] Speaker 02:
There's this criminal malice one that I don't think was raised below There's I guess willful resistance What do you think is the legal basis to have arrested her and thank you?

[00:05:08] Speaker 00:
I'll streamline this and focus on vehicle code section two one nine five four subsection a which reads

[00:05:20] Speaker 00:
Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway so near as to constitute an immediate hazard.

[00:05:40] Speaker 02:
Now has that vehicle code provision ever been applied in the context of a street that's been closed off for a protest?

[00:05:47] Speaker 00:
I'm not aware of any case law that has interpreted that statute other than the case cited by the district court on the summary judgment ruling, which was People v. Ramirez.

[00:06:03] Speaker 00:
And that's 140, Cal App 4th, 849, page 852.

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And that's a 2006 case.

[00:06:11] Speaker 04:
And so you are familiar or aware that the district court declined

[00:06:18] Speaker 04:
to consider whether the officers had probable cause based on California Penal Code 647C.

[00:06:25] Speaker 04:
You're not offering that one up today.

[00:06:29] Speaker 00:
For the purpose of oral argument, I'm not.

[00:06:32] Speaker 04:
the purpose this would be your time to offer it up for any purpose so I just want to be clear about that's that's clear I recognize that the district court did not consider that position because from your briefing it wasn't really clear so you're relying on this particular via code section now and the hazard was what

[00:06:50] Speaker 00:
The hazard was Ms.

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Savage was standing in front of vehicles that otherwise would have been proceeding on the street.

[00:07:00] Speaker 03:
The street was closed and when you look at the video, it doesn't seem like anybody was going much of anywhere and certainly not very quickly.

[00:07:09] Speaker 03:
I mean, it was a pretty small gap that opened up behind Ms.

[00:07:14] Speaker 03:
Savage and the car, I guess, to her in back of her.

[00:07:20] Speaker 03:
I don't know.

[00:07:21] Speaker 03:
I just wonder what we're to make of the fact that it doesn't seem like anybody was going anywhere.

[00:07:25] Speaker 03:
The cars were on the street for a protest, not to travel to some other place.

[00:07:33] Speaker 00:
And I think that circles back to, let's say, the issue of qualified immunity, where

[00:07:40] Speaker 00:
If the district court and this court were to look at the video and conclude that there was no probable cause under vehicle code section 21954 subsection A, the officers are still entitled to qualified immunity because under the statutory language, there's a

[00:08:03] Speaker 00:
A reasonable officer in that position would believe there was probable cause to have arrested her on that date, when the only case law that the district court has relied on was the 2006 People v. Ramirez case, which had entirely different facts.

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And I think it can't be lost here that we're dealing with a unique factual situation.

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This is not a scenario where

[00:08:29] Speaker 04:
Police officers engage in a routine traffic stop in the district court note that neither party disputed that the Department had not had blocked off Washington Avenue to non caravan traffic the boat broke police demonstrators and counter demonstrators walk through the streets where the caravan cars were driving

[00:08:48] Speaker 04:
and that the caravan cars traveled at extremely slow speeds and frequently stopped.

[00:08:53] Speaker 04:
And on these facts, it seems like the district court determined a reasonable jury could determine that Savage did not suddenly leave a curb or other place of safety, or that the caravan cars did not constitute immediate hazards.

[00:09:08] Speaker 04:
So you're saying the district court was wrong.

[00:09:12] Speaker 00:
I believe

[00:09:15] Speaker 00:
To the extent that's summarizing the district court's conclusion that there's either no constitutional violation or a tribal issue, yes, I believe the district court erred on that point.

[00:09:25] Speaker 00:
But as to the second point would be, let's look at this and say, assume the district court were right.

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Assume the district court is correct that there was no basis to arrest Ms.

[00:09:38] Speaker 00:
Savage.

[00:09:40] Speaker 00:
Then we need to look at the qualified immunity issue and determine

[00:09:45] Speaker 00:
using, let's say, the Ashcroft versus Al Kidd standard, was there existing precedent that would place the statutory or constitutional question beyond debate?

[00:09:57] Speaker 00:
So even if a court is now looking at this issue and concluding there was no legal basis to arrest Ms.

[00:10:05] Speaker 04:
Savage, I disagree with that, but let's... No legal basis in light of the facts that we have to look at in the light most favorable to the plaintiff.

[00:10:14] Speaker 04:
I mean, that's what we have to do and what I think the district court had to do.

[00:10:19] Speaker 04:
And that's what I think is kind of presenting a bit of an issue for you.

[00:10:24] Speaker 00:
And I generally agree with that point.

[00:10:27] Speaker 00:
Let me rephrase it.

[00:10:28] Speaker 00:
I agree the court needs to view this in the light most favorable to the plaintiff.

[00:10:33] Speaker 00:
But there is also the issue of video evidence.

[00:10:37] Speaker 00:
And I think that the US Supreme Court precedent in Scott v. Harris

[00:10:42] Speaker 00:
makes the factual analysis different than if this were just a case that was submitted with one side submitting declarations and the opposing side submitting declarations.

[00:10:54] Speaker 02:
But I guess Scott B. Harris says that we can look to the video evidence only if it clearly contradicts plaintiff's allegations.

[00:11:02] Speaker 02:
And we've all seen all the several videos.

[00:11:07] Speaker 02:
I didn't see Ms Savage stepping off the sidewalk right away in that immediate moment.

[00:11:13] Speaker 02:
And I think

[00:11:15] Speaker 02:
It's a matter of debate whether one could, whether she was posing a hazard of some kind.

[00:11:21] Speaker 02:
And so if you credit her allegations that she wasn't, I think the qualified immunity analysis that I'm wrestling with is would any officer reasonably conclude that there was probable cause to arrest for a vehicle code violation where the street has been closed off to demonstrators

[00:11:38] Speaker 02:
She has not stepped off the curb suddenly and is not posing any sort of immediate threat to to as to constitute an immediate hazard and in that context I I don't know that That that wouldn't be enough for a tribal issue for the jury to decide I think there's California laws span case that says It had to have been done in a way that made it virtually impossible to avoid to avoid an accident.

[00:12:06] Speaker 04:
That's a pretty

[00:12:08] Speaker 04:
high standard under that particular provision.

[00:12:14] Speaker 00:
And I would, I acknowledge the case law, and as to the point of the immediate hazard issue, as to the facts that preceded Ms.

[00:12:24] Speaker 00:
Savage's arrest, where she's in the street, I don't think there's any factual dispute between the parties in the sense that

[00:12:34] Speaker 00:
Ms.

[00:12:34] Speaker 00:
Savage agrees that she was blocking the cars for approximately two minutes.

[00:12:43] Speaker 00:
We agree with that timeline.

[00:12:45] Speaker 00:
We can see from the video she's clearly in front of the vehicles.

[00:12:49] Speaker 00:
I think we have a legal question as to whether that means she was an immediate hazard.

[00:12:54] Speaker 00:
I understand she's trying to draw the factual conclusion that she was not an immediate hazard, but I think that's a legal question, not a factual question.

[00:13:03] Speaker 00:
So that's appropriate for a court to resolve as opposed to the immediate hazard being a jury question.

[00:13:13] Speaker 03:
I do believe she was an immediate hazard because... Well, I think one of the things that makes it even more difficult is that at the time that she was arrested, she wasn't standing in front of the car anymore.

[00:13:26] Speaker 03:
She had already moved out of the street.

[00:13:27] Speaker 03:
So, I mean, what's the immediate hazard to a vehicle at that point?

[00:13:34] Speaker 00:
And thank you, I want to address that point.

[00:13:37] Speaker 00:
And I know that as to the arrest aspect, that's something that Ms.

[00:13:42] Speaker 00:
Savage focused on heavily in her arguments.

[00:13:45] Speaker 00:
I think for the purpose of the arrest, I don't think that is pertinent.

[00:13:49] Speaker 00:
I think that can matter in the use of force allegation.

[00:13:53] Speaker 00:
But for example, if the officers observed Ms.

[00:13:58] Speaker 00:
Savage standing in front of the vehicle, and if we assume for the sake of argument that that was a violation of vehicle code section 21954, subsection A.

[00:14:08] Speaker 00:
then the officers could have arrested her 30 minutes later, in my view.

[00:14:13] Speaker 00:
If she committed the crime and they observed it, they would still have the legal basis to arrest her, even if she was no longer committed.

[00:14:21] Speaker 03:
Sure, but it just somewhat suggests that there wasn't an immediate hazard.

[00:14:24] Speaker 03:
I think if the officers thought, oh my gosh, there's a pedestrian in the street.

[00:14:29] Speaker 03:
They're going to cause a collision.

[00:14:30] Speaker 03:
You've got a million people standing around watching.

[00:14:33] Speaker 03:
You would think that officers would take action

[00:14:36] Speaker 03:
move a pedestrian.

[00:14:37] Speaker 03:
Do you understand what I'm asking or what I'm suggesting?

[00:14:41] Speaker 00:
I do.

[00:14:41] Speaker 00:
And some of that I could address by saying there was a chain of events where officers on the rooftop flagged that Ms.

[00:14:49] Speaker 00:
Savage was in front of the vehicles, radioed down to officers on the ground,

[00:14:55] Speaker 00:
The officers on the ground formed an arrest team and then made the arrest.

[00:14:59] Speaker 00:
It took some time from the time the decision was made until that the arrest... Okay, so you say we shouldn't read anything into that one way or another?

[00:15:08] Speaker 00:
That's my... Okay, I understand your argument.

[00:15:10] Speaker 04:
Did you want to reserve some time for rebuttal?

[00:15:13] Speaker 00:
I would like three minutes, if possible.

[00:15:15] Speaker 04:
I'll see.

[00:15:15] Speaker 04:
We'll see how far we've gone.

[00:15:17] Speaker 04:
If I have less, I will take whatever... We'll see.

[00:15:20] Speaker 04:
At least a minute or two, but I'm not sure we'll get... Thank you very much.

[00:15:36] Speaker 01:
Good morning.

[00:15:37] Speaker 01:
May it please the court, Rebecca Brown, on behalf of the appellee, Julie Savage.

[00:15:45] Speaker 01:
To start off with the discussion we were just having regarding the immediate hazard issue, the district court did find that a reasonable jury could find that Ms.

[00:15:54] Speaker 01:
Savage was not creating an immediate hazard.

[00:15:57] Speaker 01:
That's a decision that, with all due respect, this court does not have the jurisdiction to review.

[00:16:02] Speaker 01:
And now we can look at this question in the probable cause qualified immunity analysis.

[00:16:08] Speaker 01:
But as this court has raised, there are numerous facts that are not disputed that show that no reasonable officer would believe that Ms.

[00:16:16] Speaker 01:
Savage was creating a hazard at the time of her arrest or in the moments preceding.

[00:16:23] Speaker 01:
And I would like to clarify two points that

[00:16:27] Speaker 01:
were misrepresented by the appellant's counsel.

[00:16:30] Speaker 01:
One, the court found that it was undisputed that the Whittier Police Department closed down the street and allowed pedestrians on both sides, the pro-police and anti-police people, to travel

[00:16:42] Speaker 01:
Throughout the street including in between the cars so there was not a segregation of cars on the left side of the street and Pedestrians on the right side of the street and how often would you say?

[00:16:53] Speaker 02:
People were crossing I my impression from the videos were that people were milling about and there was kind of more of a free flow Happening during the course of time, but do you have any sense of how often?

[00:17:06] Speaker 02:
protesters or others were passing through cars or between cars and

[00:17:10] Speaker 01:
I agree with your assessment of the video.

[00:17:13] Speaker 01:
It appears from the videos that the protesters, including both anti and pro police people, were kind of intermingling and moving between the cars throughout the duration of the relevant time here, including before Ms.

[00:17:27] Speaker 01:
Savage stepped in front of the two vehicles and after her arrest.

[00:17:32] Speaker 01:
And I would also like to point out that the district court found that it was undisputed that not only was Ms.

[00:17:38] Speaker 01:
Savage standing in front of vehicles, but other individuals were standing in front of the vehicles as well at the same time that she was.

[00:17:44] Speaker 01:
So you can see that in the videos as well.

[00:17:47] Speaker 01:
You can also see there were other vehicles in the car caravan procession that would have blocked their forward movement, which is to say that if Ms.

[00:17:55] Speaker 01:
Savage was not there herself, if she was erased from the picture,

[00:17:58] Speaker 01:
there were still other individuals and vehicles in the pathway of the two vehicles that she did stand in front of her.

[00:18:04] Speaker 03:
What is the relevance of, if any, of the fact that Ms.

[00:18:09] Speaker 03:
Savage did seem to be maybe not the only one, but certainly to the greatest degree, you know, screaming, using profanity, et cetera.

[00:18:18] Speaker 03:
Council suggested that, you know, that that's part of what gave the officers probable cause for the arrest.

[00:18:24] Speaker 01:
I think that information is very relevant to her First Amendment claims, but it's not relevant to the probable cause analysis.

[00:18:31] Speaker 01:
Ms.

[00:18:31] Speaker 01:
Savage was screaming, she was using profanity, she was expressing her view on police and on the pro-police caravan when she was doing so, but... Well, and she leaned over on the hood of the car.

[00:18:43] Speaker 04:
I mean, I think if the correct provision had been cited, we'd have a whole other analysis here.

[00:18:50] Speaker 01:
Well, we're looking at the provisions that the district court ruled on.

[00:18:54] Speaker 04:
And for the the one that we're just focusing on now 21 954 I understand that but if we're looking at this under 624 see not quite sure how How what the outcome would be here?

[00:19:08] Speaker 01:
Well, if you were to look under that statute, there still is the malicious intent requirement

[00:19:13] Speaker 01:
And I think, first of all, that's a factual question for the jury.

[00:19:16] Speaker 01:
The district court didn't rule on that.

[00:19:19] Speaker 01:
But just because she was yelling and expressing her views quite fervently does not indicate that she had malicious intent.

[00:19:26] Speaker 01:
She never made threats of violence.

[00:19:28] Speaker 01:
She never engaged in any violence at the protest.

[00:19:31] Speaker 01:
She yelled for about two minutes and then she stepped over to the side.

[00:19:35] Speaker 01:
So it's not, I don't believe that a reasonable officer would believe that she had malicious intent.

[00:19:41] Speaker 02:
It's a high bar, no reasonable officer.

[00:19:44] Speaker 02:
So officers could perform an arrest, and even if it's mistaken, even if they think they have probable cause, they would still be entitled to qualified immunity.

[00:19:53] Speaker 02:
But in your view, the standing in front of the car for two minutes and being very vociferous and not letting the car move, no reasonable officer would have thought that there might be probable cause to arrest for that?

[00:20:05] Speaker 01:
I don't believe so.

[00:20:06] Speaker 01:
And I think our First Amendment case law that we've cited, McKinney, Duran, Hill, it's very, very clear in the Ninth Circuit and nationally that people have a right to protest the police, whether that involves using obscenities, protesting verbally but fervently without risking arrest.

[00:20:24] Speaker 01:
So just because she was screaming and cursing and expressing her views does not establish probable cause.

[00:20:29] Speaker 04:
Well, it wasn't just that.

[00:20:31] Speaker 04:
She was leaning over the hood of a car in addition to that, and I'm just not quite sure

[00:20:35] Speaker 04:
that made enough of a difference.

[00:20:39] Speaker 01:
I don't believe that it does.

[00:20:41] Speaker 01:
She was standing in front of the cars for two minutes.

[00:20:43] Speaker 01:
She did kind of lean forward for a brief period of time, but she never threatened to hurt anyone in that car.

[00:20:50] Speaker 01:
She was just expressing her views, and then she moved to the side.

[00:20:53] Speaker 01:
The car was able to proceed.

[00:20:56] Speaker 01:
And I would also like to mention, you know, as the court raised, during this two-minute period where she was standing in front of the cars, no officer ever told her

[00:21:05] Speaker 01:
that she needed to move, that she would be arrested or that force would be used on her if she didn't stop doing what she was doing.

[00:21:12] Speaker 01:
And while in this case, the officers on the roof radioed down to set up her arrest, as you can see in the videos, there were dozens and dozens of officers on the street.

[00:21:21] Speaker 01:
So any of those officers, there were plenty nearby that saw what was happening and could have intervened but did not do so.

[00:21:29] Speaker 01:
And I think that does speak to the fact that

[00:21:32] Speaker 01:
there was no real safety concern or threat at that time.

[00:21:36] Speaker 02:
Ms.

[00:21:36] Speaker 02:
Brown, can I ask about the integral participation issue?

[00:21:41] Speaker 02:
I'm struggling to understand how Officer Robert was an integral participant.

[00:21:46] Speaker 02:
I understand the other officers either called for the arrest or set in motion or were part of the arrest team.

[00:21:53] Speaker 02:
But as far as I can tell, he was just on the roof.

[00:21:56] Speaker 02:
So what is his involvement to extend liability to him for the arrest?

[00:22:01] Speaker 01:
Yes, he was on the roof and he was working in conjunction with a Palin Zulki on the roof.

[00:22:07] Speaker 02:
What does that mean?

[00:22:07] Speaker 01:
That he was also watching Ms.

[00:22:10] Speaker 01:
Savage with a Palin Zulki and was aware of the decision to make that radio call down to order her arrest and at no point did he

[00:22:19] Speaker 01:
between viewing Ms Savage on the street, that radio call happening and her arrest going forward on the ground and the use of force, did he object to it or intervene?

[00:22:30] Speaker 02:
But why is it enough to have acquiesced?

[00:22:35] Speaker 02:
What rank does he have in relation to the other officers?

[00:22:38] Speaker 01:
My understanding is that he was a line officer, as was Zulki.

[00:22:44] Speaker 02:
So he couldn't have countermanded the arrest order or done anything?

[00:22:47] Speaker 02:
What would non-acquiescing activity have been for him?

[00:22:52] Speaker 01:
To intervene, to call down and say there was no need for arrest, to tell Officer Zolke that.

[00:23:00] Speaker 01:
I think it's similar to Boyd versus Benton County, where you have the one officer deploying a flashbang and the execution of a search warrant, and the other officers that were there sort of serving as backup.

[00:23:13] Speaker 01:
None of them intervened.

[00:23:14] Speaker 01:
and still participated in that action, which is similar to what we have here.

[00:23:20] Speaker 01:
What's that case?

[00:23:21] Speaker 01:
That is Boyd versus Benton County.

[00:23:24] Speaker 01:
The site is 374 F3rd, 773.

[00:23:28] Speaker 01:
That's a 2004 Ninth Circuit case.

[00:23:32] Speaker 01:
And they were found to be integral participants.

[00:23:36] Speaker 04:
The reason I was asking about 647C is because it seems like the appellants in their opening brief, at least, were asking us to consider that argument.

[00:23:55] Speaker 04:
And we would be considering argument raised for the first time on appeal.

[00:24:01] Speaker 04:
And I'm just curious what standard

[00:24:05] Speaker 04:
You think the court should apply when deciding whether it can consider arguments raised for the first time on appeal?

[00:24:12] Speaker 01:
The court should consider the standard that it used in Buckeye v. United States, which was a 2011 Ninth Circuit case.

[00:24:19] Speaker 01:
The site is 632 F.

[00:24:20] Speaker 01:
3rd, 1140 at page 1149, which says the appellate court typically does not consider new arguments raised for the first time on appeal.

[00:24:30] Speaker 01:
There are limited exceptions.

[00:24:32] Speaker 01:
which include to prevent the miscarriage of justice, a change in law, or purely an issue of law.

[00:24:38] Speaker 01:
And appellants did not contend that any of those three exceptions apply here.

[00:24:42] Speaker 01:
So there's no basis for this court to consider that new argument at this point.

[00:24:54] Speaker 02:
And we haven't talked much about the First Amendment retaliation claim, but assuming there was no probable cause to arrest, then that would form the basis for the claim itself.

[00:25:07] Speaker 01:
I'm sorry, I couldn't hear that.

[00:25:07] Speaker 02:
First of all, retaliation.

[00:25:09] Speaker 02:
If the officers did not have probable cause to arrest, then that could form the basis for the claim itself.

[00:25:17] Speaker 02:
I guess what I'm wondering is whether we need to get into anything about Nieves or an exception where Ms.

[00:25:23] Speaker 02:
Savage was treated differently than other protesters.

[00:25:26] Speaker 01:
Well, I think in the event that the court finds that there was no probable cause, we don't need to get into Nieves.

[00:25:32] Speaker 01:
But if the court does find that there was probable cause,

[00:25:35] Speaker 01:
Nieves shows that, nonetheless, our First Amendment retaliation claim stands.

[00:25:39] Speaker 01:
And in Nieves, the court used the example of jaywalking as a charge that people are not typically arrested and prosecuted for to show kind of the different treatment.

[00:25:52] Speaker 01:
And here, that's exactly the original offense that Ms.

[00:25:56] Speaker 01:
Savage was going to be arrested for, that vehicle code section 21954A is tantamount to jaywalking.

[00:26:04] Speaker 01:
And so it's directly applicable.

[00:26:06] Speaker 01:
So even if there is probable, court finds there is probable cause, her First Amendment retaliation claim still stands.

[00:26:12] Speaker 01:
And I think we have quite substantial evidence in the record that Ms.

[00:26:16] Speaker 01:
Savage's speech was a substantial or motivating factor for her arrest.

[00:26:28] Speaker 01:
And unless there are other questions on that I would like to touch on the fact which I mentioned in our briefs and which already occurred earlier today that in the appellants briefs and in their argument they repeatedly failed to abide by their obligation to construe the facts in the light

[00:26:45] Speaker 01:
most favorable to Ms.

[00:26:47] Speaker 01:
Savage, including misrepresenting facts, asserting their own version of disputed facts, or omitting critical facts.

[00:26:57] Speaker 01:
For example, in their brief, the appellants contended that Ms.

[00:27:00] Speaker 01:
Savage fell to the ground, while the crux of this case is that Ms.

[00:27:04] Speaker 01:
Savage asserted that the officers pushed and pulled her to the ground, and this is a fact that Judge Phillips found to be disputed.

[00:27:13] Speaker 01:
And that's a finding that appellants cannot now challenge on appeal on this interlocutory appeal.

[00:27:19] Speaker 02:
Actually, I'm glad you raised this.

[00:27:23] Speaker 02:
What about the attempted bite?

[00:27:26] Speaker 02:
Because I was trying to find whether there was clearly established law related to the bite.

[00:27:31] Speaker 02:
And I understand Ms.

[00:27:33] Speaker 02:
Savage was taken down before the bite occurred.

[00:27:35] Speaker 02:
But how do we address that particular issue in the context of

[00:27:42] Speaker 01:
the excessive force claim There is There's a substantial established law regarding minimal resistance and that minimal resistance in the face of a lawful force can be reasonable in Hammer versus gross which is a 1991 9th circuit case 932 f second 842 and

[00:28:05] Speaker 01:
The court ruled that force can still be excessive when considering the level of resistance, when there is resistance, alongside the severity of the force used in all of the relevant circumstances, as well as Blankenhorn versus City of Orange, 485 F-363, which tells a person has limited right to offer reasonable resistance to an arrest that is the product of an officer's personal frolic.

[00:28:33] Speaker 01:
That right is not triggered by the absence of probable cause, but rather by the officer's bad faith or provocative conduct.

[00:28:40] Speaker 02:
But, you know, the personal frolic is an officer just going off and doing their own thing, not really acting under the color of law.

[00:28:45] Speaker 02:
Is that, that doesn't seem so applicable to me?

[00:28:48] Speaker 01:
Well, in the, the, speaking of the bite specifically, Ms.

[00:28:51] Speaker 01:
Savage contends that Officer Draper, or sorry, Officer Goodman put his hand very close to her nose and mouth.

[00:28:58] Speaker 01:
causing her to reasonably believe that he was going to cover her airways and she would not be able to breathe.

[00:29:04] Speaker 01:
I don't know how putting a hand over an arrestee's mouth or close to their mouth serves any legitimate law enforcement purpose here.

[00:29:13] Speaker 01:
So I would consider that to be a personal frolic and an unreasonable use of force.

[00:29:20] Speaker 02:
I take it you would agree, but there aren't attempted bite cases out there, I guess, to be more illuminating on this issue?

[00:29:27] Speaker 01:
Not that I'm aware of.

[00:29:28] Speaker 01:
But I do think there are those cases I mentioned and you know the issue of low level or minimal resistance has been addressed repeatedly and that's not Dispositive of a finding of excessive force the question is was the force used?

[00:29:43] Speaker 01:
Reasonable in light of that fact and here smashing her face into the ground and the subsequent force that followed including putting the knee in the back for eight seconds and manhandling her and roughly handcuffing her was not reasonable in light of that minimal resistance and

[00:29:58] Speaker 02:
Was the, I thought the, if you tell me the sequence, I thought the putting her face on the ground was after she was attempting to bite the forearm of the officer, is that?

[00:30:09] Speaker 01:
That's correct.

[00:30:09] Speaker 02:
Okay.

[00:30:15] Speaker 01:
So in some, the case law that we cited in the brief, including Lalonde, Meredith, Nicholson, McKinney,

[00:30:23] Speaker 01:
Clearly establishes up most savages right to be free from excessive force unlawful arrests and retaliation and Encouraged the current the court to remand this case to go to trial for these factual determinations to be made by a jury Unless you have any other questions awesome.

[00:30:41] Speaker 01:
Thank you.

[00:30:42] Speaker 04:
Thank you Mr. Oyster, I'll give you two minutes Thank you very much

[00:30:50] Speaker 00:
Briefly, with respect to the integral participation issue for Officer Robert, he was a line level officer who did have no involvement and there was no evidence tying him into any participation in the subsequent events.

[00:31:08] Speaker 00:
With respect to going over the facts,

[00:31:14] Speaker 00:
We have relied heavily on Scott v. Harris for this court's ability to look at the video evidence and Determine the facts based on the video evidence even if the district court interpreted those facts differently and We believe the video evidence supports that ms.

[00:31:38] Speaker 00:
Savage first of all was not pulled to the ground as a preliminary matter but

[00:31:44] Speaker 00:
Moving on in the sequence of the use of force what do you think happened there?

[00:31:48] Speaker 04:
Then what's your view if she wasn't pulled to the ground?

[00:31:51] Speaker 00:
She either fell to the ground or intentionally went to the ground based on how her feet are positioned in front of her body She was either resisting the officers efforts to walk her Away from where she was standing and her feet came out from under her but the officers did not pull her to the ground and the video does not support that position and

[00:32:13] Speaker 00:
But as to then the subsequent series of events, you have the scenario where, yes, Ms.

[00:32:20] Speaker 00:
Savage admits that she attempts to bite the officer, Officer Goodman, even if Officer Goodman's hand had actually been near Ms.

[00:32:30] Speaker 00:
Savage's mouth.

[00:32:33] Speaker 00:
She still didn't have the ability to bite him She's still not legally entitled to and the officers still would have been able to use reasonable force in continuing to detain her and preventing Miss Savage from trying to bite Make a second attempt at biting an officer If there are any other questions for me, I'm happy to answer

[00:32:55] Speaker 04:
Thank you very much.

[00:32:58] Speaker 04:
Thank you both.

[00:32:59] Speaker 04:
Ms.

[00:32:59] Speaker 04:
Brown and Mr. Oyster appreciate the oral argument presentations here today.

[00:33:04] Speaker 04:
The case of Jolie Savage versus Paul Segura at all is submitted.

[00:33:08] Speaker ?:
Thank you.