[00:00:00] Speaker 01:
Council, when you're ready to proceed, you may step up.

[00:00:03] Speaker 01:
And I should try to say, I think good to see you again in this case.

[00:00:07] Speaker 03:
Yeah, Judge Owens, I think in the last argument you asked, well, can't you appeal from a motion to dismiss?

[00:00:13] Speaker 03:
And I said yes, so here we are.

[00:00:16] Speaker 03:
Thank you.

[00:00:16] Speaker 03:
Good afternoon.

[00:00:17] Speaker 03:
May it please the court and counsel, Philip Thonis for the State of Oregon.

[00:00:21] Speaker 03:
I will endeavor to reserve two minutes for rebuttal if I can.

[00:00:27] Speaker 03:
The district court aired in granting defendant's motion to dismiss based on supremacy clause immunity because the record evidence when viewed in the light most favorable to the state does not establish that defendant's conduct was objectively reasonable as a matter of law.

[00:00:43] Speaker 03:
Indeed, when viewed through the correct procedural lens, the record reveals disputed questions of fact, which in turn preclude the legal determination that defendant's conduct was objectively reasonable.

[00:00:58] Speaker 03:
Four aspects in the state's view, four aspects of the district court's opinion bear special emphasis and reveal that the district court failed to view the record evidence in the light most favorable to the state.

[00:01:12] Speaker 02:
How do we get around the language of the Clifton case that any errors which are made in factual review of an immunity claim are reviewed for quote clear error unquote?

[00:01:27] Speaker 03:
Your Honor, I don't know that the clear error standard is appropriate in this case for a couple of reasons.

[00:01:33] Speaker 03:
The first is that I don't understand the district court to have purported to be making any factual findings.

[00:01:40] Speaker 02:
Found that the actions of Landis were objectively reasonable.

[00:01:45] Speaker 03:
Well, Your Honor, I think at this stage and the pre-trial stage when we're talking about defendant's burden on a Rule 12B motion dismissed, I think that's a legal determination.

[00:01:55] Speaker 03:
Certainly, that's a factual question if this case were to go to trial.

[00:01:59] Speaker 02:
And isn't it a legal determination which the Clifton Court says should be made by a federal judge on all the evidence?

[00:02:06] Speaker 02:
Here, we had an evidentiary hearing.

[00:02:09] Speaker 03:
Yeah, exactly, Your Honor.

[00:02:10] Speaker 03:
But because it's a legal determination, that allows this court to review that determination de novo rather than for clearer.

[00:02:19] Speaker 01:
The district court was quite clear going through what

[00:02:23] Speaker 01:
denominated as undisputed facts and it didn't seem to me that in fact you were disputing those facts but in fact the conclusion that could be drawn from those facts.

[00:02:36] Speaker 01:
What in your view are clear facts that you believe are disputed that would tip the procedural posture in your favor?

[00:02:48] Speaker 03:
I think there are four primary

[00:02:51] Speaker 03:
Disputed factual issues your honor there might be more, but in our brief we highlighted four So the first is that the district court stated this is on one er5 the district court stated that defendant Subjectively believed that he needed to drive through the intersection without stopping that We don't believe that that View of the facts can be supported if the record is viewed in the light most favorable to the state and our primary Support for that is the defendants

[00:03:20] Speaker 03:
grand jury testimony.

[00:03:22] Speaker 03:
This is at 2 ER 153 through 54.

[00:03:25] Speaker 03:
The defendant testified to the grand jury that he did not believe that the situation was urgent, even though the subject had turned onto Mission Street and three of the agents were unable to follow.

[00:03:40] Speaker 03:
He did testify that he was driving with a purpose, but he did not tell the grand jury that he subjectively thought he needed to drive through the intersection.

[00:03:52] Speaker 03:
In fact, he told the grand jury that he could not remember whether he stopped or not, but he did remember slowing down to some degree before going through the intersection.

[00:04:02] Speaker 01:
Do you have any case that suggests that exigency or emergency is actually an element here?

[00:04:12] Speaker 03:
It's not an, exigency is not an element, your honor, of the immunity test.

[00:04:19] Speaker 03:
I think it's something, it's a factor that would go into the sort of overall circumstances of whether an officer's conduct are, whether the officer's conduct is objectively reasonable.

[00:04:30] Speaker 01:
Objectively, so what other facts in addition to the subjective view

[00:04:36] Speaker 01:
of the officer.

[00:04:37] Speaker 03:
Right.

[00:04:38] Speaker 03:
So then our next sort of contention is that the district court stated that the DEA agents sort of routinely break traffic laws in the performance of their surveillance duties.

[00:04:51] Speaker 03:
We think that's accurate but it's an oversimplification and I don't think it goes as far as the district court thought it did.

[00:04:58] Speaker 03:
So multiple agents testified that they have to speed, for example, or maybe break other traffic laws when they're trying to stay with a subject because subjects might drive erratically in order to evade being tailed and they might make unexpected traffic changes

[00:05:19] Speaker 03:
Maybe run through a red light or something like that, but the agents also stated and again This is viewing the record evidence and light most favorable to the state The I think it was agent Hoagland who testified and this was at the evidentiary hearing that there are limits to what the agents are are able to do with respect to breaking traffic laws because if they do something that a normal sort of

[00:05:44] Speaker 03:
Atmospheric that sort of the normal atmospheric traffic wouldn't otherwise do than they risk being made by the subject Your other two points would be what oh, thank you So our third point is that the court?

[00:05:58] Speaker 03:
Although the court didn't address it a lot in its opinion the court appeared to state that defendants conduct was consistent with DEA policy That that defendants conduct was consistent with DEA policy and your and your and your last point would be

[00:06:14] Speaker 03:
Our last point, Your Honor, is that, and this isn't really so much of a factual finding as it is, we think that the district court placed too much weight on the fact that defendant's job as a DEA agent, the mission of the surveillance was to identify and disrupt fentanyl trafficking.

[00:06:38] Speaker 03:
The state, of course, has no dispute that that's an important

[00:06:43] Speaker 03:
Mission and of course the state itself through local and state law enforcement Actively participates in that in that mission, but we think that it kind of misses the point the point here is What we're asking is whether defendants conduct and driving through the intersection in the circumstances at the time which did not include an emergency did not include hot pursuit and Involved a subject who was still being tailed by at least two other officers who had who had eyes on the subject and were in radio communication

[00:07:13] Speaker 03:
That's the question.

[00:07:14] Speaker 03:
That's the legal question.

[00:07:16] Speaker 03:
Was that comment objectively reasonable?

[00:07:18] Speaker 01:
Your last two points you kind of indicated are not really factual points, or at least not clearly at odds with what the district court said, which would lead you to the first one.

[00:07:28] Speaker 01:
So I want to go back to Judge Baez's original comment coming from Clifton, where the court said that proper application of the standard

[00:07:40] Speaker 01:
doesn't require to show that the action was necessary or in retrospect justifiable, only that the petition or a defendant reasonably thought it to be.

[00:07:53] Speaker 01:
And so is your bottom line is that you don't think the record supports that Landis actually reasonably thought it was?

[00:08:08] Speaker 01:
necessary?

[00:08:10] Speaker 01:
Is that the bottom line?

[00:08:11] Speaker 03:
That's correct.

[00:08:12] Speaker 03:
That's sort of the first part of the necessary and proper is that the agent must have a subjective belief that their conduct is necessary.

[00:08:21] Speaker 03:
And so that was the first point I raised.

[00:08:25] Speaker 03:
And then, of course, we also dispute whether the record could support a finding that his conduct was objectively reasonable given the circumstances.

[00:08:36] Speaker 01:
Well, this is a little bit different than your standard motion to dismiss, where we're looking at the pleadings, obviously.

[00:08:43] Speaker 01:
And here, we have really a court sanctioned from precedent having a fact-finding hearing.

[00:08:55] Speaker 01:
So in that regard, I have some trouble understanding why you think that would be de novo.

[00:09:02] Speaker 03:
I think, Your Honor, I agree that it's

[00:09:06] Speaker 03:
Procedurally, it is a bit of a strange situation.

[00:09:12] Speaker 03:
And the case law is not always terribly consistent in how the appeals courts aren't always terribly consistent in how they describe their job on appeal.

[00:09:23] Speaker 03:
And so I think I'm probably primarily relying on Horiuchi, although that case was dismissed as moot.

[00:09:30] Speaker 02:
But take Horiuchi just a second.

[00:09:32] Speaker 02:
The majority opinion in that case remanded for a judge determination, not a jury determination.

[00:09:40] Speaker 02:
And even though it was vacated, the sent didn't want any remand at all.

[00:09:46] Speaker 02:
So how do you get Horiuchi to help you?

[00:09:49] Speaker 03:
Well, Your Honor, my understanding of the dispute about whether the

[00:09:53] Speaker 03:
district court would make findings or whether the jury would make findings is because the Horiuchi said that dismissal pre-trial was not appropriate because there were genuine issues of fact about whether the officer That was the case where the officer accidentally shot the the woman during the Ruby Ridge standoff and so that the my understanding is that this court said that

[00:10:18] Speaker 03:
It should not have been dismissed based on supremacy clause immunity pre-trial.

[00:10:22] Speaker 03:
And then there was, I think, a dispute among the judges about, well, who decides the facts that go to immunity once the case goes to trial?

[00:10:30] Speaker 03:
Is it the district court or is it the jury?

[00:10:33] Speaker 02:
So it's not disputed between the judges and the majority.

[00:10:36] Speaker 02:
The judges and the majority remanded for a judge of determination.

[00:10:39] Speaker 02:
The judges and the minority didn't want to remand at all.

[00:10:42] Speaker 03:
Well, that may be, Your Honor.

[00:10:43] Speaker 03:
But I think the more pertinent takeaway from Horiyuchi is that

[00:10:47] Speaker 03:
The majority, the court held that the case should not have been dismissed as a matter of law, pre-trial.

[00:10:55] Speaker 02:
But Judge Kozinski was very clear that he thought that in criminal cases, the remand should be for a judge's determination as to the facts.

[00:11:02] Speaker 02:
And the only person who sort of indicated that that was wrong was Judge Fletcher, because it was a criminal case, not a civil case.

[00:11:11] Speaker 02:
But I don't see that Horiuchi helps you at all.

[00:11:14] Speaker 03:
Well, Your Honor, I think the way Horiuchi helps us is because we, like the majority recognized in that case, we have also pointed out genuine issues of fact that we think should have precluded immunity as a matter of law.

[00:11:29] Speaker 03:
I'm over my time.

[00:11:30] Speaker 03:
We'll give you two minutes for a rebuttal.

[00:11:31] Speaker 03:
OK, thank you.

[00:11:40] Speaker 00:
Good afternoon and may it please the court.

[00:11:42] Speaker 00:
I'm Hannah Horsley and I represent special agent Samuel Landis I believe the courts honed in on the two key problems here on appeal with the defendant's appeal

[00:11:53] Speaker 00:
and the reasons why the judgment of the district court should be affirmed.

[00:11:56] Speaker 00:
First, even today, they really are not identifying any genuine disputes of material fact.

[00:12:04] Speaker 00:
These really are, in essence, a criticism and a disagreement with the district court about the legal conclusions it drew from an undisputed factual record.

[00:12:14] Speaker 02:
But if it's a legal conclusion, shouldn't we review de novo?

[00:12:17] Speaker 00:
So I think it's clear from the cases.

[00:12:22] Speaker 00:
Expressly articulate the standard and of course that was a habeas case back at the time as the court recognized in Horiuchi albeit vacated and Other circuits have recognized in long and other cases.

[00:12:35] Speaker 00:
It's a mixed question of long facts So the ultimate determination is reviewed de novo But the case is clearly recognized that in this very unusual procedural posture Where there's a pretrial motion to dismiss and a full evidentiary hearing?

[00:12:52] Speaker 00:
The district court judge is the decider of the preliminary questions of fact now if they if there's a genuine dispute it may ultimately go to the jury but long and Other cases in addition to where you she clearly recognized that the district court has to make a determination of preliminary issues of fact here, I think it is

[00:13:19] Speaker 00:
Clear and it's and it was judge McShane's understanding there really were no disputed Material facts and so he effectively didn't make factual findings.

[00:13:31] Speaker 00:
I think the closest one is the finding that Agent Landis did have an honest subjective belief that it was necessary for him to run the stop sign in order to circle back with the surveillance team and continue with the operation and

[00:13:47] Speaker 00:
But that's, of any of them, the only one that even comes close, really, to a factual finding.

[00:13:54] Speaker 00:
And of course, that would be reviewed for clear error, as Clifton clearly stated.

[00:13:59] Speaker 01:
What do we do with the Morgan case decided after Clifton, which points to abuse of discretion as yet another standard of review into the calculus?

[00:14:18] Speaker 00:
You know, I think Morgan is definitely distinguishable.

[00:14:21] Speaker 00:
First of all, it's not a supremacy clause immunity case.

[00:14:25] Speaker 00:
And so it doesn't kind of present the same unique posture.

[00:14:29] Speaker 00:
I think the issue there was more conduct that's occurring outside the scope of authority, which is really not disputed here.

[00:14:38] Speaker 00:
There's no challenge here that he was on duty.

[00:14:40] Speaker 00:
He was acting within the scope of his duties and engaged in an enforcement operation at the time.

[00:14:48] Speaker 00:
And in Morgan, you know, the question was really driving under the influence and the use of force in a very different situation involving a minor traffic accident.

[00:14:57] Speaker 00:
So I don't think that does anything to really elucidate the standard.

[00:15:02] Speaker 00:
I agree with Judge Bea that Horiuchi is the clearest kind of most recent articulation for this circuit of the relevant standards.

[00:15:14] Speaker 00:
I did just want to circle back and address the four alleged disputed facts as the government characterizes them and just clarify what the record does show with respect to each of those, which is no dispute a fact.

[00:15:36] Speaker 00:
On the issue of breaking whether officers must often break traffic laws, which the

[00:15:44] Speaker 00:
government disputes here.

[00:15:46] Speaker 00:
It's very clear from the record.

[00:15:48] Speaker 00:
I mean, it's replete that every single DEA agent who testified from the ASAC, Walters, all the way down through the task force officers that the government called at the evidentiary hearing, all testified that breaking traffic laws was often necessary during covert surveillance operations like this.

[00:16:10] Speaker 00:
And the state never presented any contrary evidence to that.

[00:16:19] Speaker 00:
Same with the DEA policy.

[00:16:21] Speaker 00:
The state is arguing on appeal that the district court's assessment of the DEA policy was inconsistent, or his finding that Agent Landis

[00:16:37] Speaker 00:
Conduct was consistent with the policy didn't take into consideration the full record below because there was They claimed not specific testimony that this type of surveillance operation when there was no pre-planned arrest Is not an enforcement situation, and that's clearly wrong under the record there was testimony from

[00:17:02] Speaker 00:
Special Agent Hoagland who actually ran the exact same stop sign just moments earlier that when he's on surveillance, when he was on surveillance, it fell under the DEA enforcement policy subsection D and he was asked specifically, when you ran that stop sign, did you believe you were acting consistently with policy D?

[00:17:25] Speaker 00:
and he said yes and that's at 3ER 260.

[00:17:30] Speaker 00:
There's similar testimony from Special Agent Thomas at page 280 and there's no contrary evidence that was presented by the state.

[00:17:41] Speaker 00:
I think on this record we're faced with an agent who made a tactical decision that he honestly believed it was necessary for him to run that stop sign and that it was safe to do so

[00:17:56] Speaker 00:
under the circumstances at the time.

[00:17:58] Speaker 00:
In hindsight, that was the wrong call.

[00:18:01] Speaker 00:
We all know that now.

[00:18:03] Speaker 00:
But it was reasonable under the circumstances.

[00:18:06] Speaker 00:
And once he moved for dismissal of the indictment based on that immunity, the state had that burden to present sufficient evidence to really raise at least a genuine question of material fact of whether that was true if not to dispute the evidence that Agent Landis presented.

[00:18:25] Speaker 00:
and it failed to do that, the judgment of the district court should be affirmed.

[00:18:30] Speaker 02:
Unless the court has any other questions, I'll... I was looking at the four points that your friend brought up, and I didn't see that you answered, number one, that the defendants objectively believed that no stop was needed because it was grand jury testimony that it was not urgent.

[00:18:51] Speaker 00:
Your honor, there wasn't a conflict with the grand jury testimony.

[00:18:54] Speaker 00:
The grand jury testimony was just incomplete.

[00:18:57] Speaker 00:
So he testified in grand jury twice, I think, that he couldn't remember if he stopped, which is not inconsistent with his testimony at the hearing that he honestly believed he had to run the stop sign.

[00:19:12] Speaker 00:
He didn't say in grand jury that he didn't think he needed to stop or that he

[00:19:18] Speaker 00:
He thought he needed to stop and proceed it anyway.

[00:19:21] Speaker 00:
So it was incomplete.

[00:19:23] Speaker 00:
It was not inconsistent.

[00:19:26] Speaker 02:
And the last point he had your friend made was that too much weight was placed on the defendant's job as the DEA agent to disrupt fentanyl trafficking.

[00:19:37] Speaker 00:
Yeah.

[00:19:38] Speaker 00:
And again, that's...

[00:19:41] Speaker 00:
Challenge to the legal conclusion and it's relevant more to the district court's legal conclusion not they're not pointing to any factual dispute and of course the nature of the mission the work that any federal agent or officer is doing is highly relevant to the analysis here as to whether What they did was in fact necessary under the circumstances and the cases where immunity is not granted are typically cases where

[00:20:11] Speaker 00:
the nature of the conduct is not necessary given the mission.

[00:20:16] Speaker 00:
So it was important and relevant for the district court to determine what the mission was and what he was doing at the time the accident occurred.

[00:20:25] Speaker 00:
This isn't like the military convoy cases or the delivering the mail cases where the nature of the mission was very different and the traffic violation wasn't necessary in furtherance of the mission.

[00:20:44] Speaker 02:
Unless Judge McKeown you have any questions?

[00:20:46] Speaker 01:
No further questions.

[00:20:48] Speaker 02:
Rebuttal time.

[00:20:57] Speaker 03:
Thank you.

[00:20:57] Speaker 03:
Just briefly with respect to the standard of review the of course Horiuchi is not binding on this court and we like counsel noted there are cases from other circuits that have stated that

[00:21:10] Speaker 03:
Appeals in this context present mixed questions of law and fact, and so review is de novo.

[00:21:15] Speaker 03:
As far as defendant's subjective belief, we absolutely dispute whether he had a subjective belief that his conduct was necessary, and we think that viewing the record evidence in the light most favorable to the state leads to the conclusion that there is a genuine issue of fact on that point.

[00:21:35] Speaker 02:
As to the evidence presented at the evidentiary hearing, do you also contend

[00:21:38] Speaker 02:
That the judge must take that in the light most favorable to the plaintiff In the light most favorable to the state to the state right here the plaintiff right yeah, yeah That's right your honor, so he can't he can't actually Judge facts you must take whatever there is most favorable to your side and

[00:22:02] Speaker 03:
To the extent that facts can lead to reasonable inferences that would go one way or the other.

[00:22:07] Speaker 03:
So, for example, if, you know, you're looking at the defendant's grand jury testimony and his testimony at the evidentiary hearing, you could infer either that he did not subjectively believe that he needed to drive through the stop sign or that he did.

[00:22:23] Speaker 03:
Our view is that that inference needs to go in the state's favor at this pretrial stage.

[00:22:32] Speaker 02:
Do you have any case that so holds?

[00:22:38] Speaker 03:
Wyoming versus Livingston, Your Honor.

[00:22:40] Speaker 03:
That's the 10th Circuit case from 2006.

[00:22:41] Speaker 03:
443 F3rd, 1211.

[00:22:45] Speaker 03:
That's on page 1226.

[00:22:47] Speaker 03:
That the court reviews the facts in the light most favorable to the state.

[00:22:54] Speaker 02:
And I know I'm taking you past your time, but give me your

[00:22:59] Speaker 02:
best reason for rejecting Clifton's words that clear error is a standard for review here?

[00:23:09] Speaker 03:
Well, Clifton was a habeas case, Your Honor, and so I don't know that it's all that.

[00:23:15] Speaker 03:
I mean, maybe there's some persuasive authority.

[00:23:18] Speaker 03:
I think Horiyuchi probably is the more pertinent authority, even though it's no longer binding.

[00:23:23] Speaker 02:
But you do admit that even the Horiuchi the review of the four disputed issues which judge Kosinski laid out in his opinion Was to be done by a judge not by the jury That may be true your honor, but but the federal judge not the state judge right right of course, but but even then the the Ninth Circuit said that because there were disputed issues of fact as to some of those issues that dismissal was not appropriate and

[00:23:51] Speaker 01:
Let me ask you about the Wyoming case.

[00:23:53] Speaker 01:
If I recall, in that particular case, there was not an evidentiary hearing, is that right?

[00:23:59] Speaker 03:
I think that's right, Your Honor.

[00:24:01] Speaker 03:
I don't recall.

[00:24:02] Speaker 01:
And that would be a very critical difference from this case.

[00:24:05] Speaker 01:
In other words, if we were to take your position at face value, there's hardly any value of having a district court determination or evidentiary hearing, correct?

[00:24:22] Speaker 03:
Well, I don't know that I agree with that, Your Honor.

[00:24:25] Speaker 03:
And again, I would point out that reading the district court's opinion, it did not strike me that the court thought it was making factual findings or resolving disputed factual issues.

[00:24:39] Speaker 03:
And in this posture, we cite a case in our reply, United States versus Pan Gang Group Company Limited.

[00:24:48] Speaker 03:
It is the defendant's burden.

[00:24:51] Speaker 03:
to demonstrate that they are entitled to dismissal in a criminal case on immunity grounds.

[00:24:56] Speaker 03:
And so that's why I think from that it has to follow that the record evidence should be viewed in the light most favorable to the state.

[00:25:05] Speaker 01:
But if there's no hearing in, for example, the Wyoming case or even the other case that was cited, New York versus Tonella, those two cases wouldn't really give us any insight as to the standard of review, would they?

[00:25:20] Speaker 03:
That's, I think I agree with that, your honor.

[00:25:23] Speaker 03:
So to the extent, I guess maybe I'll conclude with, to the extent that this court thinks that the district court made factual findings and that it's reviewing those for clearer, at the very least, the court's finding that defendants subjectively believed that he needed to go through the stop sign was clearly erroneous based on his grand jury testimony.

[00:25:44] Speaker 02:
All right.

[00:25:44] Speaker 02:
Thank you, counsel.

[00:25:45] Speaker 02:
Thanks to both of you for your briefing and argument in this case.

[00:25:48] Speaker 02:
This matter is submitted.