[00:00:02] Speaker 03:
And we'll proceed to hear argument in the next case on calendar for argument this morning, which is 25-2618, April Fonseca versus James Barringer et al.

[00:00:17] Speaker 03:
And we will hear first from Mr. Mitten.

[00:00:24] Speaker 02:
May it please the court, my name is Eric Mitten, counsel for the City of Medford Defendants.

[00:00:29] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:32] Speaker 02:
This case raises two separate and independent issues related to qualified immunity, either of which independently could form a basis for reversal.

[00:00:41] Speaker 02:
I'd like to first talk about the issue of whether the law was well established at the time of this police action.

[00:00:47] Speaker 02:
There's a lot of different fact patterns cited in the briefing, but for well-established law, we're supposed to look at factually similar fact patterns that would give

[00:00:55] Speaker 02:
an ordinary patrol officer, reasonable notice of what the law is, and there's one case that stands head and shoulders above the rest on that issue.

[00:01:03] Speaker 02:
It's Myers v. City of New York.

[00:01:05] Speaker 02:
Decided six months before this case, it dealt with the clearing of Occupy Wall Street by the New York Police Department.

[00:01:12] Speaker 02:
There are many similarities, also a couple key distinctions in that.

[00:01:17] Speaker 02:
In that case, the mayor issued an order temporarily closing the park after about 150 people had set up tents

[00:01:25] Speaker 02:
in that public park, preventing its use for its intended purpose, and raising concerns about hygiene and public safety.

[00:01:33] Speaker 02:
The NYPD came in at 1 a.m.

[00:01:36] Speaker 02:
without advance notice in riot gear.

[00:01:39] Speaker 02:
Not all of these facts are clear from the face of the opinion, but it was a high-profile issue, and they are not disputed.

[00:01:47] Speaker 02:
And within 30 minutes, it arrested 150 people.

[00:01:54] Speaker 03:
With Hawthorne Park, we had a similar situation in that we had about... So in Myers, did they arrest all the people who were legally camping?

[00:02:04] Speaker 03:
Were there other people in the park?

[00:02:06] Speaker 03:
Did they close the park, announce a closure, exclude other people?

[00:02:10] Speaker 02:
My understanding is that the park was closed to everybody.

[00:02:14] Speaker 03:
Did they let some people in selectively if they were helping in the clearance?

[00:02:19] Speaker 02:
They did not.

[00:02:20] Speaker 03:
In Myers?

[00:02:21] Speaker 02:
they did not do that.

[00:02:22] Speaker 03:
That seems to be one of the salient facts in this case is that there's some evidence in the record that people went into the park here and then they were stopped like whoa you can't go in the park it's closed oh no I'm helping out oh okay you can go in.

[00:02:40] Speaker 02:
Absolutely and that is one of the key distinctions here looking at Myers.

[00:02:44] Speaker 03:
But that's true I mean it wasn't just like

[00:02:47] Speaker 03:
it's closed and just government employees or contractors or designated people.

[00:02:53] Speaker 03:
This was like, they were not checking to see if they were from a particular group or whatever, but members of the public who just came up and said, I'm helping, they were waved in.

[00:03:04] Speaker 02:
They were.

[00:03:07] Speaker 02:
It was still limited to people who were there to help accomplish the purpose of the closure.

[00:03:12] Speaker 02:
They weren't contractors with the government, but they were still limited to people there to help.

[00:03:17] Speaker 03:
So any member of the public who showed up and halted on park, the officer would decide whether to let in if they were and said that they were going to help with the closure.

[00:03:28] Speaker 03:
So somebody shows up, I'm going to help with the closure.

[00:03:31] Speaker 03:
You're in.

[00:03:32] Speaker 03:
Somebody else shows up.

[00:03:34] Speaker 03:
I'm here to record and write a story.

[00:03:38] Speaker 03:
You're excluded.

[00:03:40] Speaker 03:
Do I have that correct?

[00:03:42] Speaker 02:
That is how the closure works.

[00:03:43] Speaker 02:
That is correct, Your Honor.

[00:03:45] Speaker 03:
And why isn't that just a facially discriminatory policy that if it's open to the general public, if you're coming in for one purpose, but if you're coming in for First Amendment activity, uh-uh.

[00:04:01] Speaker 02:
Well, I don't think it was open to

[00:04:03] Speaker 03:
the general public as a whole for... But you just said that the member of the general public shows up and says, I'm going to help out, they were in.

[00:04:12] Speaker 03:
But if they come and say I'm going to report it, then they're out.

[00:04:14] Speaker 03:
It seems facially discriminatory between First Amendment activity and other members of the general public who are going to do the activity that you consider to be acceptable.

[00:04:27] Speaker 03:
I mean, you could have closed this park and just closed it and said, we're only going to let in who we're going to let in.

[00:04:33] Speaker 03:
We have a contractor or the officers are going to take care of it.

[00:04:37] Speaker 03:
But that's not what happened.

[00:04:40] Speaker 03:
It was open to members of the general public to come in who were assisting, but not if they were engaged in First Amendment activity.

[00:04:48] Speaker 03:
So it seems that in the implementation, there's a facially discriminatory First Amendment problem.

[00:04:54] Speaker 02:
Well, Your Honor, I think it's still, because it was limited to people who are actively helping the campers gather their stuff, I still believe it's facially neutral because it's not discriminating against certain sorts of expressive conduct, but not others.

[00:05:08] Speaker 02:
I also think that one of the key issues- Who had the case in which

[00:05:12] Speaker 03:
in the implementation of that kind of limitation, it was open to members of the general public to come in and assist in that limited purpose.

[00:05:22] Speaker 03:
Because the other examples that I've seen of closures appear to me that they really did a closure and they controlled who was going in in a much tighter way than this case.

[00:05:34] Speaker 03:
That's what makes this a little bit different.

[00:05:38] Speaker 02:
It is different and

[00:05:40] Speaker 02:
If I may, just a practical thing is some of these campers may not trust individuals affiliated with the police, but they may trust a service worker with a nonprofit that's not affiliated.

[00:05:52] Speaker 02:
So it was still consistent with the purpose of the closure to allow in people besides just city contracts.

[00:05:58] Speaker 03:
Right, and you had actually identified in the implementation plan a couple of groups who would be allowed in.

[00:06:05] Speaker 03:
Yes.

[00:06:05] Speaker 03:
Because they were going to provide targeted services, get them over to

[00:06:09] Speaker 03:
shelters, etc.

[00:06:11] Speaker 03:
If people were, you know, fire victims from the Alameda fire, they'd go to another place.

[00:06:17] Speaker 03:
But it wasn't limited to just those people.

[00:06:21] Speaker 02:
That is correct, Your Honor.

[00:06:22] Speaker 02:
And I think on qualified immunity, the question is not so much whether that was the correct decision on how to structure it, but whether that rule was clearly unlawful.

[00:06:37] Speaker 02:
looking at Zuccotti Park where no assistance was given to campers.

[00:06:42] Speaker 02:
It was lawful, but it didn't feel great from a humanitarian perspective in terms of 150 people arrested to here where by slowing it down, giving advance notice, there were some benefits.

[00:06:56] Speaker 02:
With the benefit of hindsight, I understand the concern about there's this distinction being made, but for qualified immunity, the question is whether the officers operating this plan

[00:07:06] Speaker 02:
Looking at additional humanitarian safeguards built in for the purpose of helping the campers would have would have known that it takes it outside of well-established law whether officers who Approved of those safeguards were plainly incompetent or knowingly violating the law well It was also a media staging area correct there was a media staging area it was 60 feet closer to the

[00:07:32] Speaker 02:
the center of the campground than the sidewalk.

[00:07:34] Speaker 02:
There's been some testimony that it was not a great media staging area for audio recording.

[00:07:38] Speaker 02:
60 yards from the center might be great for telephoto photography, but we're not claiming with the benefit of hindsight and everything that it was the best for audio recording.

[00:07:48] Speaker 02:
But we did set up a media staging area.

[00:07:50] Speaker 02:
We did provide advanced notice to reporters to at least be present to be aware of what was going on, which is not something that happened in Zuccotti Park.

[00:07:58] Speaker 02:
And in terms of resources available, we had body cams throughout the park.

[00:08:03] Speaker 02:
Ms.

[00:08:03] Speaker 02:
Fonseken, our briefing, points out that we produced 28 hours of body cam of activities in the park, dialogue going on within the park.

[00:08:11] Speaker 02:
So that was an additional factor not present in the Zuccotti Park clearance that would have given reporters making public records requests access to audio and video of what was going on inside the park.

[00:08:24] Speaker 01:
Why isn't there a factual issue about the supposed reason for the closure, given that there's a tape where one of the officers says, well, you know, something along the lines of, well, I'm glad the reporters aren't here following me and recording me, or something along those lines?

[00:08:39] Speaker 02:
Well, first, the individual saying that was not the... I believe that was Officer Kirkpatrick, and he was not

[00:08:49] Speaker 02:
the one in charge of the plan.

[00:08:52] Speaker 02:
Regardless, I think it has less to do with the subjective intent and more the impact on the parties involved.

[00:08:59] Speaker 02:
Subjective intent on summary judgment is always going to be a difficult thing for the city to prove, but just because inference are viewed more in the light and most favourable than on moving party.

[00:09:12] Speaker 01:
But you look at that combined with what Judge Collins was pointing out of not allowing reporters, but allowing just random volunteers to come in.

[00:09:21] Speaker 01:
Why isn't that combined with all those factual issue that we can't resolve?

[00:09:26] Speaker 02:
Because if looking to the test, Anzacote Park assumed but

[00:09:34] Speaker 02:
did not determine that it would be under intermediate scrutiny.

[00:09:38] Speaker 02:
And it looks at whether there's a legitimate state interest and restrictions are rationally related to that interest.

[00:09:42] Speaker 02:
It doesn't look at the subjective intent of the operators of the plan.

[00:09:47] Speaker 02:
So I recognize that those comments on a summary judgment record, if subjective intent is an element, are challenging.

[00:09:56] Speaker 02:
But I think whether you look at rational basis or intermediate scrutiny, you're looking at the plan and it's

[00:10:02] Speaker 02:
its impact on people in terms of the plan itself and less about the subjective intent of individual officers involved in carrying out the plan.

[00:10:13] Speaker 02:
Quickly turning to the issue of rational basis, review versus intermediate scrutiny.

[00:10:19] Speaker 02:
Looking at the cases where intermediate scrutiny is applied, those are typically cases, to summarize briefly, where members of the general public are

[00:10:31] Speaker 02:
allowed to walk around for any purpose and there's restrictions on information gathering or expressive conduct.

[00:10:37] Speaker 02:
For example, individuals in the Garcia V. Alameda case filming street racing on a public sidewalk where anyone can walk, but the filming is restricted.

[00:10:49] Speaker 02:
Or in the Atkins v. Department of Homeland Security, a sidewalk where

[00:10:57] Speaker 02:
Anyone can walk their dog back and forth, but filming of federal agents on adjoining private property is restricted.

[00:11:06] Speaker 02:
This was a property that was closed to the public, and Ms.

[00:11:10] Speaker 02:
Fonsek, when she was arrested, said, I'm still allowed in because I'm a reporter, didn't say, oh, the park is open today.

[00:11:17] Speaker 02:
And one key case, getting to the court's previous concern about, well, some people are allowed in,

[00:11:26] Speaker 02:
is Pell v. Procunier.

[00:11:28] Speaker 02:
I'm not sure if I'm pronouncing that right, but that dealt with a prison where reporters were restricted in how they could interview inmates, and they were restricted to a greater degree than family members.

[00:11:39] Speaker 03:
Pell is the class of people who were allowed to have the one-on-one contact with the inmates was defined by a pre-existing relationship.

[00:11:48] Speaker 03:
So it's like family members, attorneys, et cetera.

[00:11:52] Speaker 03:
So it's not just anyone who shows up and says that they're there for a particular purpose.

[00:11:59] Speaker 03:
It's a predefined relationship, so that seems distinguishable from this case.

[00:12:03] Speaker 02:
It is a predefined relationship.

[00:12:05] Speaker 02:
I would argue in our case that it was still limited by a specific purpose.

[00:12:09] Speaker 02:
It's less about the individual's identity and more about the individual's purpose.

[00:12:12] Speaker 02:
So it's still a set of limited stakeholders and not the general public as a whole for general public purposes.

[00:12:19] Speaker 02:
I see that I'm at the three-minute mark if there's no further questions.

[00:12:23] Speaker 02:
I'd like to reserve the rest of my time for rebuttal.

[00:12:26] Speaker 02:
All right.

[00:12:26] Speaker 00:
Thank you counsel We'll hear next from mr.. Powell Good morning your honor and may it please the court bill Powell here on behalf of plaintiff April on Seca

[00:12:47] Speaker 00:
Ms.

[00:12:47] Speaker 00:
Fonseca is an award-winning radio journalist, and she joins us here in the courtroom this morning.

[00:12:52] Speaker 00:
While she was reporting on a newsworthy event in a public park, defendants abruptly arrested her and seized her recording equipment.

[00:13:01] Speaker 00:
In doing so, they violated her clearly established right to record the police when engaged in their official duties in public.

[00:13:09] Speaker 00:
That right has been clearly established in this circuit for more than 30 years.

[00:13:14] Speaker 00:
Accordingly, defendants are not entitled to qualified immunity.

[00:13:17] Speaker 03:
Because this speech... But, I mean, you agree that the law does say that you can sometimes close a park completely if you, you know, you have to do maintenance, you have to do some kind of operation there, and you can just completely close the park, correct?

[00:13:36] Speaker 00:
I would agree that you can close a park in a situation

[00:13:40] Speaker 00:
where you have a reason to do so and that you've shown that reason.

[00:13:44] Speaker 00:
But here, under intermediate scrutiny, the district court held that there were key factual disputes about the extent to which the defendants could show that they had any significant interest in closing the park or that they had left open any alternative adequate means.

[00:14:01] Speaker 00:
And then even setting that aside to the point, even assuming they were allowed to completely close the park, here they

[00:14:09] Speaker 00:
did so only on a discriminatory basis.

[00:14:12] Speaker 00:
They sort of reverse tailored the closure to restrict First Amendment activity to the greatest extent possible while allowing other types of activity in the park.

[00:14:21] Speaker 03:
So what's the case that you think most clearly is on point that would tell an officer such that, in light of that case, every reasonable officer would understand?

[00:14:33] Speaker 03:
that this was unconstitutional.

[00:14:37] Speaker 00:
I would give you two cases, Your Honor.

[00:14:39] Speaker 00:
The first is the Fordyce case, the Fordyce versus Seattle.

[00:14:44] Speaker 00:
That case was from 1995, so it was clearly established long before the events that occurred here.

[00:14:50] Speaker 00:
In that case, there was a protest going on in the city of Seattle, and the police were controlling

[00:14:56] Speaker 00:
the protest, but the plaintiff was a public TV reporter, and he was videoing the police officers.

[00:15:02] Speaker 00:
And they seized his recording equipment, and the Ninth Circuit held that that violated his right to record the police, even though it was occurring in a situation.

[00:15:12] Speaker 03:
Have a closure order at issue in that case?

[00:15:15] Speaker 00:
My understanding is that there were dispersal orders going on for the protest, but maybe less of a geographic one.

[00:15:20] Speaker 00:
So let me turn to the second case that I was going to mention, which is the Reed case.

[00:15:25] Speaker 00:
In that case,

[00:15:26] Speaker 00:
It concerned Yellowstone Park, and there was a herding of buffalo going on in Yellowstone Park.

[00:15:32] Speaker 00:
And the officers there tried to close off a certain route that would allow them to move the buffalo.

[00:15:38] Speaker 00:
But the person who wanted to observe was doing so on a kind of pull-off along that route.

[00:15:44] Speaker 00:
And this court held that there were key factual disputes about whether they actually had an interest in preventing that person from being in the location that they were.

[00:15:53] Speaker 00:
and reverse the district court's grant of judgment notwithstanding the verdict to the defendants in that case.

[00:15:59] Speaker 00:
So I think that case clearly established that even where you're closing off an area, you still have to tailor that to allow to the extent possible someone who's just observing to record.

[00:16:13] Speaker 03:
So what is it precisely that's unconstitutional?

[00:16:18] Speaker 03:
Is it the initial, the park closure order itself?

[00:16:23] Speaker 03:
Is it the implementation document that gives instructions for how it will be carried out?

[00:16:31] Speaker 03:
Or is it the actual conduct on the ground by the officers sorting people who could go in and go out?

[00:16:40] Speaker 03:
Because there's sort of three different things there that produce this outcome.

[00:16:44] Speaker 03:
Which of those is the one that's unconstitutional and unconstitutional, in your view, clearly under Reid or other cases?

[00:16:53] Speaker 00:
Sure.

[00:16:54] Speaker 00:
So I think each one of those steps was clearly unconstitutional under this court's precedent, but it was a course of conduct.

[00:17:01] Speaker 03:
Well, the closure order just on its face is a total closure.

[00:17:04] Speaker 03:
I mean, it just says the park is closed.

[00:17:07] Speaker 03:
And if they had just closed the park and really let no one in other than officers who were going in to clear people out and who were disobeying the closure order, this would be a very different case, wouldn't it?

[00:17:20] Speaker 00:
I agree that would be different, so let me maybe try it in two different steps.

[00:17:23] Speaker 00:
So the first is that when closing a park like this, I read this court's precedence to require tailoring and to consider the rights of people who might want to observe and to tailor the closure to allow observing to the extent possible.

[00:17:39] Speaker 03:
And I think... Even if they decide, you know, we're just gonna... This is a... At some level, this is a law enforcement operation in part.

[00:17:46] Speaker 03:
It's humanitarian, but it's partly law enforcement.

[00:17:48] Speaker 03:
The people in the park are...

[00:17:50] Speaker 03:
camping in violation of the law, and they're not getting out.

[00:17:54] Speaker 03:
And you're saying that even if they say, we're just going to close the park for, say, three hours.

[00:18:00] Speaker 03:
I mean, I know it was longer.

[00:18:02] Speaker 03:
But we're just going to close it for three hours.

[00:18:04] Speaker 03:
No one's in.

[00:18:05] Speaker 03:
We're just going to send the cops in to clear out people who are violating the law.

[00:18:11] Speaker 03:
Even then, there has to be a press right of ed.

[00:18:14] Speaker 03:
They just can't close the park, say, this is a law enforcement operation, and that's it.

[00:18:19] Speaker 00:
So I think our position is actually fairly modest, which is just that they have to consider the First Amendment interest and tailor to that First Amendment interest.

[00:18:27] Speaker 00:
But there are many situations, I think, in which the police will be able to fully exclude the press and can do so consistent with intermediate scrutiny, which I don't think is a straight jacket at all in this context.

[00:18:38] Speaker 00:
So for instance, let's say there's a crash on the side of the highway.

[00:18:41] Speaker 00:
And cars are, you know, abutting out into the lane, and cars are flying by at 75 miles an hour.

[00:18:47] Speaker 00:
I think the police in that situation easily can satisfy your immediate scrutiny to just say, no, it's not safe to have anybody here, no press access whatsoever.

[00:18:56] Speaker 00:
I think you could have a situation, maybe the Zuccotti Park one.

[00:18:59] Speaker 00:
I mean, that's an unpublished out-of-circuit precedent.

[00:19:01] Speaker 00:
So the fact that that is my friend's best case, I think, suggests that there aren't a lot of good cases for him.

[00:19:06] Speaker 00:
But even taking that case on its own terms, there may be a situation where the park is just

[00:19:10] Speaker 00:
such a mess, maybe there's violence going on or something, we're sure you're going to be able to close it entirely to clear it.

[00:19:15] Speaker 00:
But I think you do, because of the right of, that I think any reasonable officer would understand, a right to record the police when they're engaged in their public duties in public, or their official duties in public, pardon me, that you have to at least consider whether there's an option to allow observation, and here there was none of that.

[00:19:32] Speaker 01:
So here, if they didn't allow anybody, they didn't allow volunteers to come in, they didn't allow reporters, and they said only people we've deputized, we've hired and vetted to help clear out and assist the police.

[00:19:47] Speaker 01:
Would that closure have been okay?

[00:19:50] Speaker 00:
So I think our position is that that closure probably, they would still have to meet intermediate scrutiny and maybe they would be able to, but what we have here is a much different case.

[00:19:59] Speaker 03:
It's a lot harder to say that that was clearly established that you couldn't do that.

[00:20:04] Speaker 00:
I mean, I think especially the cases that are more in the right of access line suggest that, you know, in press enterprise too, the closure of the murder trial, that was asked to everyone.

[00:20:14] Speaker 00:
It wasn't that they let in some people to the murder trial and not to others, but still they had to meet essentially intermediate scrutiny there, the Supreme Court said, in order to justify that exclusion.

[00:20:24] Speaker 00:
But even if you disagree with what I'm saying about a closure order that is nondiscriminatory, I think what's very important here is that the closure order was discriminatory.

[00:20:32] Speaker 00:
So what they actually did was that they allowed in anyone who wanted.

[00:20:36] Speaker 00:
to help out.

[00:20:36] Speaker 00:
And there were a few different categories of folks who were in the park.

[00:20:39] Speaker 00:
There was the kind of service providers who they had mentioned in the operation plan, yes.

[00:20:44] Speaker 00:
But there were also, as you'd mentioned earlier, just some folks who showed up and said, you know, I'm here to help the homeless basically.

[00:20:50] Speaker 00:
And they said, well, just go pick up a trash bag and you can stay.

[00:20:53] Speaker 00:
You can see that on the body cam footage.

[00:20:56] Speaker 00:
There were also a group of, I don't know exactly what the right word is for them, advocates or community organizers who had sort of been

[00:21:02] Speaker 00:
coordinating with the campers on the body cam footage from the day before you can see them they were getting into some arguments in particular with officer Kirkpatrick and those folks were in the park that morning they didn't ask them to leave or to move in any way and to the extent anyone was obstructing the police they were probably the ones in addition although they created the media staging area here there are the two videos I would suggest that

[00:21:29] Speaker 00:
Looking at its declaration, Kofori Declaration Exhibit 2 and 3, the CBS and NBC footage, you just can't see anything from the media staging area.

[00:21:37] Speaker 00:
You can see some trees.

[00:21:38] Speaker 00:
You can't hear what's going on with the clearance.

[00:21:40] Speaker 00:
You can't see what's going on with the clearance.

[00:21:42] Speaker 00:
It was not in the terms of intermediate scrutiny and adequate alternative place from which to observe what was going on.

[00:21:51] Speaker 00:
And crucially, the district court found material factual disputes with respect to alternative adequate avenue for observation and with respect to whether there actually was any kind of extenuating emergency here that required.

[00:22:05] Speaker 00:
I would like to turn very briefly to that Myers case.

[00:22:22] Speaker 00:
So there were no observers at issue in that case.

[00:22:25] Speaker 00:
The plaintiffs were themselves the campers, the ones who had occupied the park.

[00:22:30] Speaker 00:
And they said we had a First Amendment right, basically, to obstruct the police and to continue to occupy the park.

[00:22:37] Speaker 00:
And the Second Circuit, in that case, I think, hopefully for us, did apply intermediate scrutiny to that park closure.

[00:22:43] Speaker 00:
So that's another example of one where they were doing a complete closure and still the court applied intermediate scrutiny.

[00:22:48] Speaker 00:
It's just that there they held, yes, you can satisfy your immediate scrutiny,

[00:22:52] Speaker 00:
With respect to the campers' rights in particular, these folks had been obstructing the park, and there was a compelling government interest in removing their campsites from the park and allowing the park to be freed up for other purposes.

[00:23:06] Speaker 00:
Here, though, we're talking about a separate observer, a journalist, who, as the district court observed, you know, there really was not any immediate threat to anyone in the park.

[00:23:15] Speaker 00:
That morning, one of the defendants, city manager Sejothan, he was standing in the park drinking coffee,

[00:23:20] Speaker 00:
It was a sunny morning folks were I think actually an irony here is that if they had not?

[00:23:27] Speaker 00:
Arrested my client.

[00:23:27] Speaker 00:
I think they were probably going to get pretty good press because they actually were Working with the campers pretty productively folks were picking up there was a mess, but they were picking up and moving out They had been there the day before with the resource fair working very collaboratively with the campers to clear the park

[00:23:44] Speaker 00:
And so overall, I think, you know, the actual, with respect to the campers, what they were doing made a lot of sense.

[00:23:50] Speaker 00:
It's just that all they needed to do was allow a little bit more observation, tailor it in a slightly different way, maybe move that media staging area to the other side of where the camp was, where there weren't trees in the way.

[00:24:00] Speaker 00:
Even if it was a little further away on the sidewalk, I think it'd be better that you could at least see what was going on.

[00:24:05] Speaker 00:
Maybe with Ms.

[00:24:05] Speaker 00:
Sonseca, allow her to record some audio.

[00:24:07] Speaker 03:
So an officer deciding, you know, whether or not

[00:24:11] Speaker 03:
to make an arrest for someone who is staying in the park after being instructed to leave is supposed to be thinking, well, gee, they didn't really tailor the staging areas in the wrong place, and therefore it's not tailored and it's clearly established.

[00:24:27] Speaker 03:
I mean, is that what they're supposed to be thinking?

[00:24:30] Speaker 03:
What is it that tells you?

[00:24:32] Speaker 03:
Because we ultimately don't have the validity of the policy directly in front of us in this case, because it comes to us

[00:24:37] Speaker 03:
in this interlocutory posture.

[00:24:39] Speaker 03:
And you've got a claim against the city where the qualified immunity overlay doesn't apply, but we don't have that in front of us.

[00:24:46] Speaker 03:
So what is it that tells the officers who are making the line decisions and who made the line decision in this case that you can't do this?

[00:24:57] Speaker 00:
So I'd like to say maybe three things in response to that, Your Honor.

[00:25:00] Speaker 00:
The first is that I really think under this court's precedent, the one thing that all the officers on the scene here should know

[00:25:06] Speaker 00:
is that there is a right of the public to record police when they're engaged in their official duties in public.

[00:25:11] Speaker 00:
And this court has held that repeatedly.

[00:25:13] Speaker 00:
And I think we have some evidence here.

[00:25:15] Speaker 03:
But they understood that.

[00:25:16] Speaker 03:
But the question is, where can you do that?

[00:25:20] Speaker 03:
Does that give you a right of access into a place that has been declared closed?

[00:25:25] Speaker 00:
Right.

[00:25:28] Speaker 00:
The defendants here have not tried to draw fine distinctions between the different defendants and sort of what they knew about what they'd been told and things of that nature.

[00:25:38] Speaker 00:
But I would point out in particular a couple of the defendants, because I think it's relevant to answering your question, defendants Jewell and Kirkpatrick, and then also defendant Arnold.

[00:25:49] Speaker 00:
They were the ones who selected the media staging area, and they were also the ones who gave the morning briefing.

[00:25:56] Speaker 00:
And at that morning briefing, they instructed the officers to target journalists, in particular, for arrest.

[00:26:03] Speaker 00:
They're also the officers, Jewell and Kirkpatrick, were the ones who, the day before, were caught on their body cam saying, the best part about this closure tomorrow is that they can't follow us around.

[00:26:13] Speaker 00:
And they used a couple expletives.

[00:26:14] Speaker 00:
They can't follow us around sticking cameras in our faces.

[00:26:17] Speaker 00:
And then the morning of the enclosure, as those two, Jewell and Kirkpatrick, are driving up, they say,

[00:26:23] Speaker 00:
before they get out of the car, not the public's got to leave, everybody's got to leave.

[00:26:26] Speaker 00:
They say media's got to leave, observers got to leave.

[00:26:30] Speaker 00:
And so I think those officers, it's an objective test, of course, but I think given those officers were in the process of choosing the staging area, thinking about how they were going to conduct this operation, they should have, any reasonable officer in that circumstance would have understood they weren't allowed to just single out the press for this kind of enforcement.

[00:26:48] Speaker 03:
But they weren't the ones who made the actual arrest here.

[00:26:52] Speaker 00:
That is true.

[00:26:53] Speaker 00:
So then turning to defendants first, Barringer and Todd, they're the ones who actually did the arrest.

[00:27:02] Speaker 00:
It is true that they heard at the morning briefing that they could target journalists for arrest if they were outside the media staging area.

[00:27:10] Speaker 00:
But the other thing they heard at the morning briefing was that they had discretion.

[00:27:14] Speaker 00:
They said, use your best discretion.

[00:27:15] Speaker 00:
What we want to do is

[00:27:17] Speaker 00:
productively get this encampment cleared.

[00:27:19] Speaker 00:
And so I think in the moment, again, any reasonable officer knows there's a right to record the police, see a radio reporter quietly observing and not bothering anyone that they would have exercised in that kind of circumstance discretion not to target them for immediate arrest.

[00:27:35] Speaker 00:
And Officer First, his body cam footage in particular, he arrives on the scene, he's kind of raring to go to try to stop speech and

[00:27:44] Speaker 00:
Within 30 seconds of encountering Ms.

[00:27:46] Speaker 00:
Fonseca, he's got her arm twisted behind her back.

[00:27:48] Speaker 03:
What does the record show about which officers were the ones who were waving in people who said, I'm here to help, and they say, take a trash bag, et cetera?

[00:28:00] Speaker 00:
So I think it's, I don't want to overstate what's in the record on this.

[00:28:04] Speaker 03:
I think- No, I'm just wondering, maybe it doesn't say who said that, but it's been acknowledged that there were officers who were doing that.

[00:28:11] Speaker 03:
I'm just wondering what the record says about which officers did that.

[00:28:14] Speaker 00:
Right, so it's on the body cam footage of the officers who were physically present on the park, but I'm not entirely certain, in part because one of them is like a conversation about something the officers had said to someone earlier, and they're like recounting, oh yeah, I told that guy he could pick up a trash bag.

[00:28:31] Speaker 00:
So I don't wanna say in particular, but I think it was the same group that was the ones conducting the arrest.

[00:28:37] Speaker 03:
Okay, all right, thank you, Council.

[00:28:39] Speaker 00:
Thank you, Your Honor.

[00:28:40] Speaker 03:
We'll hear rebuttal.

[00:28:44] Speaker 02:
Thank you, Your Honors.

[00:28:45] Speaker 02:
Just a few brief points I'd like to make in rebuttal.

[00:28:49] Speaker 02:
First, there seems to be an agreement that if we close the park to literally everyone, it would have passed constitutional muster.

[00:28:56] Speaker 02:
And whether this was the right way to handle it is a question for the entity, not the individual defendants.

[00:29:02] Speaker 02:
We were on uncharted territory in terms of how to structure this.

[00:29:05] Speaker 03:
On to the Reed case.

[00:29:06] Speaker 03:
I mean, he said that basically was his best case.

[00:29:09] Speaker 02:
Absolutely.

[00:29:09] Speaker 02:
The Reed case, if you dig into it,

[00:29:12] Speaker 02:
The particular road that the individual was parked on was not part of the closure area.

[00:29:18] Speaker 02:
There were specific roads that were closed for the Buffalo to pass.

[00:29:22] Speaker 02:
This was a side road that was not part of the closure area.

[00:29:25] Speaker 02:
So that's factually distinguishable enough that I don't think any reasonable officer

[00:29:30] Speaker 02:
even if they knew that case was out there, would be able to apply that to the situation we've got here where there's a specific closure area and we have individuals within that specific closure area.

[00:29:39] Speaker 02:
The other case that Council pointed to, the Fort Ice case,

[00:29:43] Speaker 02:
All officers in that case were actually granted qualified immunity with the exception of one who, instead of just enforcing the no recording restriction, slammed the smartphone of the person making recording into their face.

[00:29:59] Speaker 02:
That was the denial of qualified immunity.

[00:30:01] Speaker 02:
The officers who were simply enforcing it were protected by qualified immunity in that.

[00:30:05] Speaker 02:
So I don't think that that case outweighs the Myers case in terms of what a reasonable officer would know were allowed to do and not to do.

[00:30:13] Speaker 02:
And in the Myers case, I absolutely recognize that the

[00:30:19] Speaker 02:
the attempts to build more concessions to help out the campers made it distinguishable.

[00:30:24] Speaker 02:
And it took us into somewhat uncharted territory.

[00:30:26] Speaker 02:
But if officers can't iterate to try and make things better, this was no worse for anybody than Myers.

[00:30:32] Speaker 02:
Nobody was allowed in Myers.

[00:30:34] Speaker 02:
So the media didn't have worse access to this park than they did in Myers.

[00:30:38] Speaker 02:
Some people besides media had better access.

[00:30:41] Speaker 02:
If that was the wrong decision, that's for the entity defendant.

[00:30:44] Speaker 02:
For the officers,

[00:30:45] Speaker 02:
Trying something new to improve the situation for people is what qualified immunity is supposed to protect.

[00:30:51] Speaker 03:
But going back to Reed, why isn't there, under viewing the evidence in the light most favorable to the plaintiff, why isn't there an issue of pretext that then would make Reed controlling and clearly established law?

[00:31:12] Speaker 03:
Because ultimately rest on a pretext holding and why don't we have a tribal issue of that here?

[00:31:21] Speaker 02:
Because I think here there's no question That the rule was being enforced

[00:31:33] Speaker 02:
as drafted.

[00:31:34] Speaker 02:
Someone who wanted to play ball in the park would have been arrested for trespass.

[00:31:37] Speaker 02:
There's no question there that people who were not helping out with helping the campers pack their stuff and leave.

[00:31:43] Speaker 03:
But it's clear that the planners of this knew that they were going to exclude the press.

[00:31:47] Speaker 03:
Intended to exclude the press, officers expressed happiness that the press would be excluded and then the press was then selectively excluded on the day of it.

[00:31:57] Speaker 03:
So why isn't that enough for pretext and read it's been on the books and is clearly established then?

[00:32:04] Speaker 02:
Because I still think that the distinction with Reed where the individual is not even in the closure area makes the pretext discussion much more key here.

[00:32:17] Speaker 02:
And here there were body cams, there was a staging area, albeit not a perfect one with hindsight, that I don't think the subjective comments of individual officers takes us outside of the objective

[00:32:32] Speaker 02:
of the plan.

[00:32:33] Speaker 02:
I see I'm well over time.

[00:32:35] Speaker 02:
Okay.

[00:32:35] Speaker 02:
All right.

[00:32:36] Speaker 03:
Thank you, council.

[00:32:37] Speaker 03:
The case just started to be submitted and we thank council on both sides for your helpful