[00:00:00] Speaker 05:
Mr. Kim.

[00:00:02] Speaker 02:
Good morning. May it please the court, I'd like to reserve five minutes for rebuttal.

[00:00:06] Speaker 02:
This case shows what happens when a police officer acts not in the public's interest, but in his own self-interest. And this appeal turns on a single legal principle. On a motion for summary judgment and on a motion to dismiss, the evidence in the pleadings must be viewed and all reasonable inferences must be drawn in favor of the non-moving party.

[00:00:30] Speaker 02:
That principle.

[00:00:31] Speaker 01:
I'll agree with all of that. And in fact, that's true.

[00:00:35] Speaker 01:
But don't we have to look at the statements from the body camera, really? Isn't that what we're really looking at in this case? That is what we're looking at and- Because otherwise we would look at only the statements which the plaintiff gave. But because we got this body camera and we know what the body camera shows, we look at those statements and that's what we're evaluating, right?

[00:01:06] Speaker 02:
The body camera is highly relevant, obviously. Of course, there are important- If that's so,

[00:01:13] Speaker 01:
I read, I looked at what happened in the body camera. I looked at all of that.

[00:01:21] Speaker 01:
Your client was never threatened with arrest, right?

[00:01:26] Speaker 02:
Oh, I disagree, Your Honor.

[00:01:27] Speaker 01:
Now, just a minute. Nobody said I'm going to arrest you.

[00:01:31] Speaker 02:
That was never said. The record reflects that Koanui said that if she wants to press the charges... then we're gonna have to read rights, get statement, then arrest her for the extortion. Now that statement I concede was not made in the presence of Ms. Hall, it was made in the presence of Ms. Griego. But the record also reflects that Ms. Griego was serving as the shuttle diplomat in this controversy.

[00:01:57] Speaker 01:
And in fact- But just a minute, I guess what I'm trying to figure out, I have your client in mind, I have her client in mind of what she heard and what she didn't hear. and what she was told and what she wasn't told because that's the circumstance I really have to think about on a First Amendment claim.

[00:02:17] Speaker 01:
The officer said, no one is ever going to see jail time and no one is going to jail today.

[00:02:27] Speaker 01:
The officer said, if you choose to make a case, it will be forwarded to the prosecutors. The prosecutors will review the case and determine if they follow through.

[00:02:40] Speaker 01:
The officer said, when asked if he was going to arrest somebody today, the officer said, no, no, no, I'm not going to do that.

[00:02:52] Speaker 01:
The officer explained that Hall might be listed as a suspect if Latoto filed a complaint, but that would not show up on background checks.

[00:03:03] Speaker 01:
So I'm saying to myself, I'm trying to decide if this is persuasion or coercion. And I'm trying to look at the totality of the circumstances in a different situation than in an immigration case. And I'm saying to myself, why isn't this case like Nunes versus Los Angeles? In Nunes versus Los Angeles, the mere threats and harsh words were not sufficient, and these were really threats and harsh words.

[00:03:37] Speaker 01:
I've got this in the middle of all of that in this case, are not sufficient to establish the adverse, an adverse action for purposes of retaliation under the First Amendment. So I guess I'm trying to figure out why is this any different than Nunes?

[00:03:57] Speaker 01:
Other than the threats at Nunes were worse than the ones here.

[00:04:02] Speaker 02:
The significance here is that the threats were conditioned on Ms. Hall stopping her protected activity of trying to file a police report.

[00:04:11] Speaker 01:
She was never asked to withhold her statements.

[00:04:15] Speaker 02:
To your honor's point about viewing the totality of the circumstances, I think it's important to step back and understand.

[00:04:22] Speaker 01:
That's what I tried to do in trying to get there.

[00:04:25] Speaker 02:
Understood, your honor.

[00:04:26] Speaker 01:
That's why you're getting the questions you're getting.

[00:04:28] Speaker 02:
What happened on the day of the incident is that Ms. Hall called 911 and she said that her boss was in the middle of attacking her. Now, I refer the court to the first four minutes of the body-worn camera footage because Ms. Hall thought that Officer Koanui was there to protect her or to help her, but she was not even able to complete a single sentence. Before she finished her first sentence, Officer Koanui interrupted her and said, I already heard what Leonard had said.

[00:05:03] Speaker 02:
She was then stunned, right? She didn't know what was going on. She knew at that point that this officer was not there to take down her report, but yet she persisted. And within two and a half minutes of the door opening, Officer Kohanui then, in a very assertive tone, accuses her of having committed extortion. Not only does he say that, he emphasizes multiple times within that first four to five minutes that this was a class defund.

[00:05:32] Speaker 01:
Well, that's a good argument about what he did. I'm not sure he really did that.

[00:05:37] Speaker 01:
As I read this or heard what was happening, It was, if you're going to do this, you might, or you could be, or it is something that could happen. And in all the time that he was saying that, he was saying, no one's ever going to go to jail. Nobody's going to do any problem. You're not even going to be in a background check. It didn't seem to me that it was coercion at all. It was just, at best, persuasion, and I'm not even knowing if he was trying to persuade or if he was just stating his opinion.

[00:06:13] Speaker 02:
Also, I understand your honest position.

[00:06:15] Speaker 01:
I mean, all I'm trying to do is look at the thing.

[00:06:18] Speaker 03:
I mean, I think one of the difficult things here is in terms of understanding a threat of arrest as distinguished from an arrest is kind of what are we looking for for the threshold, right? Is it... I mean, if it's that she doesn't feel free to leave, reasonable person wouldn't feel free to leave, well, then that's something we usually look at arrest. So I'm trying to understand what is the rule you would have us adopt for what makes this threat distinguishable from other threats because arrest was on the table in your view?

[00:06:55] Speaker 02:
Understood, Your Honor. I mean, the rule, there's no rule that I'm advocating for. It's the ordinary First Amendment rule that an adverse action is something that would chill a person of ordinary firmness. I also would emphasize that this Court has held... Can you sort of...

[00:07:13] Speaker 05:
I don't want to stop you from answering that question, but that can't be the rule, right? Or at least that's not a complete statement of the rule because it has to be tied to something, an adverse action statement. tied to protected activity. Can you give us a complete statement of the rule of First Amendment law that you are saying was clearly established and that was violated here?

[00:07:39] Speaker 02:
Mr. Well, that you are not allowed to engage in such an adverse action, something that would chill a person of ordinary firmness from continuing to engage in protected activity. And that causation standard, it's very well established within the Ninth Circuit that it's just whether or not there was a substantial, whether or not the protected conduct was a substantial or motivating factor in the adverse action. But I wanted to also point this court to White versus Lee and Brodheim versus Cry. which in turn relies on the U.S.

[00:08:11] Speaker 02:
Supreme Court's decision in Bantam Books. But there, in all of these cases, the Ninth Circuit has very clearly held that the threat of invoking legal sanctions against a party is enough to count as an adverse action.

[00:08:27] Speaker 03:
Now, all these other questions about causation... What do we do about Neves then? So, how would you always handle that?

[00:08:39] Speaker 02:
I want to emphasize a couple things. Nieves is about retaliatory arrests. This is not an arrest claim. It's a retaliatory threat, and so that framework doesn't apply.

[00:08:51] Speaker 01:
However... Well, if that framework doesn't apply, and I'm not trying to take away from your argument, it seems to me that Mulligan versus Nichols is the appropriate case.

[00:09:03] Speaker 01:
As Mulligan says...

[00:09:05] Speaker 01:
that retaliation claims against government speech warrant a cautious approach by the courts, that we have set a high bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation claim. That seemed to me to hit dead on to what we've got here rather than the cases you've cited to me, which I also read. But this is the situation, and that's why I said right to begin with, let's look at what really happened here.

[00:09:42] Speaker 01:
And in the whole of what happened here, the one statement that you continue to suggest is in fact a or is something more than I thought it ever was, but was given in all of these other statements.

[00:10:05] Speaker 01:
And that's the reason when I talk about this cautious approach and high bar, I'm saying, counselor, how do I get there?

[00:10:15] Speaker 02:
Couple points, Your Honor. First of all, the fact that Your Honor and I disagree about how we're interpreting the facts and what happened, right? There was a lot that was going on. Under the relevant legal standard, these are hotly contested facts, and a reasonable jury could easily view all of the evidence.

[00:10:33] Speaker 01:
Well, it's a hotly contested if you didn't narrow it down now, as you did, to watching that video, which I can watch and which the district court can watch.

[00:10:44] Speaker 02:
I'M NOT SUGGESTING THAT THAT IS SUFFICIENT. AGAIN, THE RECORD NEEDS TO BE VIEWED IN ITS ENTIRETY AND OFFICER KOANUI BASELESSLY INVOKES THIS IDEA OF EXTORTION 11 TIMES THROUGHOUT.

[00:11:00] Speaker 03:
DOES OTHER PURPOSES OF THE RETALIATION CLAIM, TO COME BACK TO JUDGE SMITH'S QUESTION, Doesn't she have to have heard that threat in order to be chilled by it?

[00:11:14] Speaker 02:
Of course. And there are at least three instances where Ms. Hall heard directly from Koanui these threats of extortion, that she had committed extortion.

[00:11:25] Speaker 03:
What if the officer, there may be a genuine dispute here, but what if the officer has probable cause?

[00:11:36] Speaker 02:
That has no bearing here. And first of all, he has absolutely no arguable cause for extortion. The relative, first of all, there's no probable cause for theft.

[00:11:46] Speaker 02:
That's not relevant because within the first two and a half minutes of the interaction, he's accusing her of extortion. So at the time that he was saying that she had committed extortion, he arguably, if Nieves applies, needed to have probable cause at that moment that she had committed extortion. Now, what is extortion under the Hawaii revised statutes? It's theft by threat. And it's not just any kind of threat. It's a statutory threat, meaning, for example, that Ms.

[00:12:16] Speaker 02:
Hall threatened to harm, physically injure Mr. Latoto if something didn't happen. There's absolutely no evidence of an... There's absolutely no basis for any reasonable officer to believe that there was extortion. And in fact, on appeal, Koanui has dropped... has not even taken the position that there was any probable cause for extortion.

[00:12:41] Speaker 05:
So suppose we agree with you that there's no probable cause for extortion and that a threat to arrest someone for extortion would show a person of reasonable firmness, et cetera.

[00:12:52] Speaker 05:
It still needs to be tied to a protected activity. You would agree, right? And so the...

[00:13:01] Speaker 05:
As I watch the video, most and perhaps all of the references to extortion that I saw were like, you need to give back the phone or you will be charged with extortion. And you're not suggesting that retaining the phone is protected First Amendment activity? No, I'm not, Your Honor. So what you need is an explicit or perhaps implicit link between the extort potential extortion charges and the filing of a complaint which is protected activity yes and and where where do i look in the video to see that because because i i didn't the first five minutes your honor because within within

[00:13:41] Speaker 02:
I don't want to give a precise, but the point is in that initial interaction, Ms. Hall recounts the allegations of assault. And then she says, I would like to press charges. Within two minutes, roughly, of that statement that she would like to press charges, Officer Kony makes the first accusation that she's committed extortion. and then emphasizes that she's committed a Class B felony. And the case law makes very clear that proximity and time between protected activity and adverse action is circumstantial evidence of causation or motivation.

[00:14:15] Speaker 02:
So that's one example. I'm mindful of time.

[00:14:18] Speaker 05:
I just wanted to address... We'll give you enough time because we've been asking a lot of questions. And just... I want to be sure that you were able to complete your answer to one of the earlier questions that you got. You're not suggesting that, I mean, you've referred a number of times to the totality of the circumstances in the whole record.

[00:14:37] Speaker 05:
You're not suggesting that there's evidence other than what's in the video of what threats might have been made, are you?

[00:14:45] Speaker 02:
There are examples, and I would refer the court to Ms. Hall's second declaration, because of course, and this is important on the conspiracy point to the extent the court reaches that issue, but Mayoho-Pohina admits she forgot to turn on her body-worn camera footage. And Ms. Hall's declaration includes testimony about what occurred during that encounter before. So, of course, I will concede that, you know, your honor should review the body one camera and and take that as quote unquote true but there are other relevant facts that are not captured on um the body one camera and do those relate to officer kohanui

[00:15:30] Speaker 05:
Because his camera was on the whole time he was there, right?

[00:15:33] Speaker 02:
Let me give you an example, for instance. There are various statements that were made to Ms. Griego, who was serving as the shuttle diplomat. Now, Officer Kohanui would say all these things to her, suggesting that what Robin had done was serious. And then he said, go in and talk to her. What we don't have on the body-worn camera is what did Ms. Griego say retell or say to Ms. Hall about what Officer Kohanui had told Ms. Griego.

[00:16:04] Speaker 02:
And that also suggests that just because Ms. Hall did not hear some of these very threatening statements doesn't mean that she didn't perceive them eventually through Ms. Griego. And what...

[00:16:19] Speaker 05:
We haven't said a whole lot about qualified immunity so far here, but what case or cases would you point to that you think would have put someone in the position of Officer Kohanui on notice that it would violate the First Amendment to say that retention of the phone might be extortion and to say that, I think, as you've said, in proximity to a discussion of whether a report would be filed?

[00:16:48] Speaker 02:
The best case, well, I think the backdrop is that the Ninth Circuit has, since at least 1990, held very clearly that police officers are not allowed to punish people for engaging in protected speech. And then this actually answers Judge Smith's question. I really would ask that the court review Duran very closely because not only does it say that, but it also says...

[00:17:16] Speaker 02:
No less well established is the principle that government officials in general and police officers in particular may not exercise their authority for personal motives.

[00:17:26] Speaker 05:
Durand was someone who actually got arrested, right?

[00:17:29] Speaker 02:
It was not a threat of arrest case. Of course. And on that point, Your Honor, I would refer the court to Reed v. Luriance. And in that case, 2017 decision, which was before this incident, That case was about the threat of arrest.

[00:17:44] Speaker 05:
And that was, he was there observing the police activity and they wanted him to move and not observe the police activity.

[00:17:49] Speaker 02:
Yes, I concede that the underlying factual predicate was slightly, you know, was different. However, the principle is clear that you cannot threaten to arrest someone just because they're engaging in First Amendment protected activity. Well, I, that principle is...

[00:18:09] Speaker 05:
I think it is quite clear.

[00:18:12] Speaker 05:
But the Supreme Court has told us many, many times not to define clearly established law at a high level of generality. And we have to look at the level of the particular circumstances of the officer. And I think that the difficulty is what might be called at best the ambiguity of the link between the protected activity and the threatened action by the officer and And so I'm not sure what, given that ambiguity, I'm having trouble seeing the case that would have told the officer that he couldn't say the things that he said.

[00:18:47] Speaker 02:
The other case I would point, Your Honor, to, to the extent that the factual predicate or the factual analogy is important, would be Meyer versus Board of County Commissioners. It is a Tenth Circuit case. However, the Ninth Circuit quoted extensively from it in adopting the rule in Entler versus Griguar that the filing of a criminal complaint is protected First Amendment activity. But the facts are eerily similar there because there, the plaintiff tried to file a police report against someone. that someone was against her attacker.

[00:19:19] Speaker 02:
And that someone was friends with the three police officers who did not take her report. And the court held that there was a First Amendment retaliation claim there. So all of these cases in combination would make more than clear to any reasonable officer that you're not allowed to threaten someone simply because they want to press charges against their attacker.

[00:19:41] Speaker 02:
I KNOW I'M WELL OVER MY TIME, BUT IF I COULD HAVE A COUPLE MINUTES FOR REBUTTAL.

[00:19:44] Speaker 05:
NEW SPEAKER WE'LL GIVE YOU THREE MINUTES FOR REBUTTAL.

[00:19:46] Speaker 02:
NEW SPEAKER THANK YOU.

[00:19:53] Speaker 05:
NEW SPEAKER I KNOW YOU'RE DIVIDING TIME. I DON'T KNOW WHAT ORDER YOU'RE IN.

[00:19:59] Speaker 00:
NEW SPEAKER MAY IT PLEASE THE COURT.

[00:20:02] Speaker 00:
I'M GOING TO HAVE, I BELIEVE, SEVEN AND A HALF MINUTES.

[00:20:07] Speaker 00:
Good morning. My name is Brad Silva. I'm here on behalf of City and County of Honolulu, Sergeant Mayo Ho'opohina and Officer Castillo. I am happy to try to answer any questions the panel may have, but given the limitations of time, I was intending to focus my analysis on retaliation and probable cause, who is similarly situated, and deliberate indifference.

[00:20:31] Speaker 00:
So retaliation and probable cause, I will begin by noting for retaliation claim, Ms. Hall was required to show a substantial causal relationship between her protected conduct and the alleged adverse action. Now, we have argued that there was not an adverse action here. There were not threats made based upon an objective viewing of the video. But even assuming that we do have a threat, even assuming that we do have adverse action, We maintain that Officer Kauanui had probable cause to affect an arrest either for extortion or at a minimum for theft.

[00:21:08] Speaker 00:
And that changes the analysis here.

[00:21:11] Speaker 00:
And we can find that probable cause base.

[00:21:14] Speaker 03:
What is the, I guess, the Hawaii law that's relevant to whether arrests for misdemeanors?

[00:21:24] Speaker 00:
I don't have the specific legal provision, but for either offense, if the officer had probable cause, reasonable, trustworthy information to believe that the offense had occurred, they do have the ability to affect that arrest. And whether or not Officer Kohanui intended to affect arrest, our position is merely that the information he had, even just the information that he had from Ms. Hall, was sufficient for probable cause on either of those two offenses. AND THAT THAT PROBABLE CAUSE SERVES TO SEVER ANY SUBSTANTIAL CAUSAL RELATIONSHIP BETWEEN THE ALLEGED ADVERSE ACTION AND THE WHAT THE OFFICER DID HERE.

[00:22:07] Speaker 00:
THE EXISTENCE OF PROBABLE CAUSE BEING IMPORTANT BECAUSE IT IS WEIGHTY EVIDENCE THAT THE OFFICER'S ACTION WAS NOT BASED ON A RETALIATORY MOTIVE. AND MR. KIM POINTED OUT AND THIS COURT HAS POINTED OUT THAT We've not looked at probable cause in the context of a generalized retaliation claim. The closest we have is probable cause in the context of a retaliatory arrest, and that's Nieves.

[00:22:35] Speaker 03:
Right. So why should we adopt that? I mean, this was an extended encounter. There was no snap judgment here that we, the court, seemed to be concerned about.

[00:22:46] Speaker 03:
WHY WOULD IT APPLY AND SWALLOW UP THE STANDARD TEST FOR FIRST MEMBER RETALIATION?

[00:22:54] Speaker 00:
I WOULD MAINTAIN IT DOESN'T SWALLOW UP THE TEST. IT'S MERELY SOMETHING THAT'S CONSIDERED IN ADMINISTERING THE TEST. ADDITIONALLY, IT WOULD BE SOMEWHAT NONSENSICAL AS WE ARGUED IN OUR BRIEFING TO SAY THAT WITH PROBABLE CAUSE, OFFICER KOANUI COULD AFFECT A RETALIATORY ARREST. BUT THE MERE DISCUSSION OF THE POSSIBILITY OF ARREST WOULD NOT BE SOMETHING THAT'S PROTECTED.

[00:23:19] Speaker 03:
What would be the undisputed facts that we'd be looking at that would be material to whether Officer Kohanui had probable cause?

[00:23:29] Speaker 00:
I think that would just be the information that Officer Kohanui had obtained at the time at which he made the statements that are being construed as threatening.

[00:23:39] Speaker 03:
What do we do with the fact that, for example, that he reached out to the complainant for reasons unknown, the counter complainant that And so as your friend opened, kind of announced essentially the cause he had for the investigation before he'd even heard Ms. Hall's complaint.

[00:24:04] Speaker 00:
I don't know that him informing her that he'd already spoken to Mr. Latoto affects the analysis as to probable cause. You know, if he had said, I heard what Mr. Latoto said, we need to hear nothing further from you, that would be highly problematic. But he does receive Ms. Hall's report. He does receive her statement. She has given the opportunity, actually multiple opportunities, throughout the genesis of the matter to explain exactly what she believed to have occurred.

[00:24:35] Speaker 00:
And that is the protected conduct. It's making the report to the police.

[00:24:41] Speaker 01:
That's protected conduct as alleged in the complaint, right? Yes.

[00:24:48] Speaker 01:
If in fact the government has a great case As it relates to the retaliation on the First Amendment or the First Amendment retaliation claim, why would we throw probable cause in the middle of this case?

[00:25:10] Speaker 00:
Your Honor, we've argued.

[00:25:12] Speaker 01:
Is that because you don't think it's a good claim without having probable cause in the middle of it?

[00:25:18] Speaker 00:
Your Honor, we like to advance every argument that we think is viable.

[00:25:21] Speaker 01:
Well, I understand that. I'm just trying to say, I mean, I frankly wondered why you're going to make me determine whether there was probable cause in this particular situation and then add it to the claim rather than just going on the claim as it is.

[00:25:40] Speaker 00:
So as I noted at the beginning, we believe the district court correctly concluded that there were no threats of arrest. There was no adverse action. I know we could have rested just upon that in our briefing. However, we do believe there is an issue here with probable cause that was raised in the opening brief. It's something that we felt we needed to respond to. We maintain there was probable cause. And under Nieves, the existence of probable cause would sever the relationship between the adverse action necessary to show.

[00:26:13] Speaker 00:
And even though Nieves is a retaliatory arrest claim, the genesis of the law, at a minimum, would make it unclear to an officer in Koanui's situation that he could not disclose the possibility of arrest to Ms. Hall without...

[00:26:29] Speaker 05:
becoming liable for a first amendment retaliation suppose suppose we don't agree with you on the first on the uh probable cause part of the analysis um what about the statement uh that the officer made to ms griego if hall wants wants to make the charges then we're going to have to arrest her for the extortion um Suppose he had said that directly to Ms. Hall, like, if you make the charges, then we're gonna have to arrest you for extortion.

[00:27:01] Speaker 05:
Do you think that would violate the First Amendment?

[00:27:06] Speaker 00:
Not in this case, because again, we- Because of the probable cause? That's part of it, yeah.

[00:27:11] Speaker 05:
Okay, but setting aside that for a moment, if you make the charges, we're gonna arrest you for extortion, would that violate the First Amendment?

[00:27:23] Speaker 00:
Your Honor, I don't believe it would because she's already made her report to the government. It's been received. The filing of a police report is not what the protected activity here is.

[00:27:36] Speaker 05:
Why isn't that? It seems more in the nature of the petition clause than the speech clause, but filing a report with the government seems, how is that not protected activity?

[00:27:50] Speaker 00:
Your Honor, I see I'm running low on time, but I will address your question. So something that has been somewhat confused throughout this case, the reporting, the protected activity is making the complaint to the police. It's not the filing of a written police report. It is making the complaint.

[00:28:07] Speaker 05:
Why isn't the filing of a written police report also protected activity?

[00:28:12] Speaker 00:
Because Ms. Hall is not the one making the written police report. That's something that the police would do based upon the information that they received from her.

[00:28:22] Speaker 03:
But isn't the claim that the retaliation is the officer's declination to do so, or at least do so on equal terms as Mr. Latoto's complaint?

[00:28:34] Speaker 00:
And there are reasons in the record why Mr. Latoto's complaint was treated differently, which goes somewhat to the class of one analysis. But again, under Smith v. Arizona and myriad other cases, the right, and this is in the context of the right petition, is to make the complaint to the police. But that's unidirectional. There's not any particular response that's required. So to the extent that Ms. Hall is complaining that she made her report... I don't think it's a response.

[00:29:04] Speaker 03:
It's if an officer takes a complaint for show and then wads it up and throws it in the trash...

[00:29:12] Speaker 03:
for retaliatory reasons. I guess I'm not sure why that still isn't encompassed by the First Amendment. It's not getting to the government, it's getting stopped by the officer who's retaliating.

[00:29:31] Speaker 00:
And, Your Honor, I guess the most I can say on that point is that, based upon the existing case law saying that it is unidirectional, that a particular response is not required, at a minimum, there would be an uncertainty in the law, as Officer Kohanui confronted it at the time, that would, at a minimum, mandate a finding of qualified immunity under the circumstances that you're discussing.

[00:29:59] Speaker 00:
Thank you. Thank you.

[00:30:10] Speaker 05:
Mr. Smith.

[00:30:11] Speaker 06:
May it please the court. I'm Lex Smith. I represent Officer Christopher Koanui. I've had the opportunity to hear your questions and the discussion, so I'll just dive into a couple of points I'd like to make sure you hear from me.

[00:30:35] Speaker 06:
The totality of the statements Officer Kohanui made as viewed on the body cam, he does not reflect a threat to arrest her.

[00:30:51] Speaker 05:
What about the statement I just asked your friend about, which admittedly is indirect, it's through Ms. Griego, but if she wants to make the charges, then we're going to have to arrest her for extortion. Why isn't that a threat that if she goes ahead with complaining, she'll be arrested?

[00:31:09] Speaker 06:
First, I would point out there's no evidence that Ms. Griego said that or repeated that to Ms. Hall. And secondly, I think...

[00:31:20] Speaker 06:
What Officer Kohanui said directly to Ms. Hall was that, nobody was going to get arrested. So I think that's, as I say, in the totality of what Officer Koh-I-Nui said, it was clear that nobody was going to be arrested for this rather minor kerfuffle.

[00:31:41] Speaker 03:
On the totality, this, it wasn't, it may be ambiguous what, you can make threats by saying I wouldn't want to see, you know, be ashamed if anything happened to you, right?

[00:31:56] Speaker 03:
that can count as a threat, but also the kind of course of conduct over the way this unfolded over an hour or more, didn't really kind of let go of that issue. They were the kind of discussion of arrest all the way through this period. So why isn't that enough to at least for a jury to draw inferences on summary judgment?

[00:32:18] Speaker 06:
I do not, I don't think there's an issue from the body cam footage. I don't think a reasonable juror could, from the body cam footage, take away a message that Koh-I-Nui was threatening to arrest particularly because he expressly said, nobody's going to be arrested today, and nobody's going to go to jail.

[00:32:45] Speaker 06:
He clearly did say that she didn't have the phone, or that she had possession of the phone, and that that was a theft or an extortion.

[00:33:00] Speaker 06:
There's no question about that. But he also said that nobody's going to jail. This is all misdemeanor, petty misdemeanor stuff. And that was the...

[00:33:14] Speaker 06:
message that I would submit, and I think that the district court concluded, was overwhelming in the response of Officer Koanui.

[00:33:36] Speaker 06:
I also think, co-counsel brought this up, but I also want to make sure that I make the point that the First Amendment right is the right to raise your grievance to the police.

[00:33:57] Speaker 06:
citizens don't have a constitutional right to have the police do any particular thing in response to the complaint. I think that's clear in the case law, the case law we've cited in our brief, and I would urge the court to recognize that. Now,

[00:34:20] Speaker 01:
Counselor, may I ask you one question that I felt interesting? I didn't find any place in what you and your client alleged that you were seeking qualified immunity.

[00:34:36] Speaker 01:
Is that correct?

[00:34:39] Speaker 06:
We did raise that in the trial court in the motion for summary judgment, but I don't believe we did raise it in our position as appellees.

[00:34:53] Speaker 05:
But we didn't... The city briefed it in its brief, which was sort of curious because the municipality doesn't have qualified immunity, only the individual defendants do.

[00:35:03] Speaker 06:
Right, although they do represent two officers as well.

[00:35:07] Speaker 05:
But are they...

[00:35:10] Speaker 05:
Does their argument, I guess maybe this is a question I should have asked your colleague, do you understand their argument for qualified immunity to apply to your client, even though it wasn't in your brief?

[00:35:20] Speaker 06:
I do understand that, but we did not coordinate the briefing to leave it out. We felt there were other arguments that we should be making.

[00:35:29] Speaker 05:
If you didn't coordinate the briefing, that suggests that we don't look at, we shouldn't look at their arguments as reflecting your position.

[00:35:38] Speaker 06:
It was our choice not to include it.

[00:35:41] Speaker 06:
I certainly felt and feel qualified immunity applies to Officer Koanui here.

[00:35:49] Speaker 01:
If, in fact, the only way we could help your client was to do qualified immunity analysis, would we need to send that back to the district court?

[00:36:01] Speaker 06:
No, I think it's, well, I don't think the district court ruled on that either, but we did make that argument in the district court.

[00:36:12] Speaker 04:
So you made the argument in the district court, but you're expressly not making the argument here. We have not raised it in our brief.

[00:36:27] Speaker 06:
I think those are the only points I have. that have not already been adequately covered today.

[00:36:36] Speaker 06:
All right. Thank you.

[00:36:43] Speaker 04:
Mr. Kim.

[00:36:46] Speaker 02:
I just had a few points. I mean, just on that last issue, our position is that Koanui has forfeited the qualified immunity argument.

[00:36:56] Speaker 01:
Well, he hasn't necessarily forfeited it altogether. The best he could do is you might argue that he has forfeited it here, but somebody else has raised it for him. But if, in fact, we were to grant summary, we were to overturn the summary judgment, that doesn't mean he can't say it in front of the district court the next time, does it?

[00:37:21] Speaker 01:
There's no forfeiture of that.

[00:37:23] Speaker 02:
Understood. I mean, I think, yes, I'll concede that, Your Honor.

[00:37:29] Speaker 02:
The other point I wanted to make concerns threat, right? We've talked about the conflicting evidence. I wanted to point the court to evidence in the record where Koinui actually admits that he was threatening Hall. At 37.45 to 38 of his body-worn camera, this is what he says in Ms. Griego's presence. Even when I started talking to her about the extortion and the theft, she didn't really seem too receptive to the idea that she could possibly get arrested for something, yeah?

[00:38:05] Speaker 02:
that signals that Koanui's subjective intention was to engage in a threat. And a jury viewing this could easily conclude the same. So this question of whether he committed a threat or not is besides the point when he is the one who's communicating to others that he wanted to threaten her for trying to persist in filing the police report.

[00:38:30] Speaker 02:
Now, we've talked a lot about the body-worn camera footage and I think the important point here is the sequence of events, right?

[00:38:38] Speaker 02:
Koh-inui's counsel has pointed to instances where Koh-inui says, I don't want anyone to go to jail. These are just, you know, these are insignificant crimes. But that is consistent with Koh-inui's strategy, or at least a reasonable jury could find that that's consistent with Koh-inui's strategy of beginning the interaction very aggressively, you know, upping the stakes, saying you're committing extortion. That's a class B felony. But then Ms. Hall didn't back down.

[00:39:09] Speaker 02:
She continued. And then Officer Conway pivoted in his strategy to then suggesting that, oh, these are both petty misdemeanors. No one's going to go to jail. No one's going to get arrested. Thus suggesting that if Ms. Hall continued, it would be futile. There would be no point in filing the charges because no one would face any consequences. The through line is that a reasonable jury could view this evidence and conclude that Koenig was trying to prevent Ms. Hall, deter and prevent Ms. Hall from filing a police report.

[00:39:41] Speaker 02:
I believe my time is expiring. The only final point I would make is this probable cause issue. There's no basis to extend Nieves to the threat of arrest. Bello-Reyes, this court's decision in Bello-Reyes declined to extend Nieves to the immigration arrest context. And then I would also emphasize that Colanui himself characterized this dispute as a civil dispute. And I would point the court to Allen v. City of Portland and Stevens v. Rose, both Ninth Circuit precedent, that clarify that probable cause cannot arise from a civil dispute.

[00:40:17] Speaker 02:
Thank you.

[00:40:17] Speaker 05:
Thank you very much. We thank all counsel for their helpful arguments and the case is submitted.