[00:00:00] Speaker 01:
Good morning, and may it please the court.

[00:00:01] Speaker 01:
Laurie Sobranski for Officers Reeves and Bassey.

[00:00:05] Speaker 01:
I'm going to try my best to save five minutes for my rebuttal.

[00:00:08] Speaker 03:
All right.

[00:00:09] Speaker 01:
And if you could speak up just a little bit, please.

[00:00:11] Speaker 01:
Sure.

[00:00:11] Speaker 03:
Thank you.

[00:00:11] Speaker 03:
Or pull the microphone a little closer.

[00:00:14] Speaker 01:
I'll scoot a little closer.

[00:00:15] Speaker 01:
Is that better?

[00:00:16] Speaker 01:
Yes.

[00:00:17] Speaker 01:
Thank you.

[00:00:18] Speaker 01:
This appeal presents a narrow qualified immunity question.

[00:00:22] Speaker 01:
Whether the officers responding to this active gun threat are entitled to qualified immunity on plaintiff's unlawful arrest claim.

[00:00:30] Speaker 05:
That's all we have in front of us is the qualified immunity issue.

[00:00:35] Speaker 01:
That is it.

[00:00:36] Speaker 01:
All the other claims, the lawfulness of the high-risk stop, the force that was used, the searches, the punitive damages, all of that has been adjudicated in the officer's favor.

[00:00:46] Speaker 01:
So there's no need to get sidetracked by any of that.

[00:00:49] Speaker 01:
The only conduct the district court found unconstitutional was the duration of the investigative stop, which was briefly extended by Officer Bazzi's eight-minute

[00:00:59] Speaker 01:
redeployment to help secure the adjacent parking lot, which at that time presented the greater safety risk.

[00:01:06] Speaker 05:
To put the timing... So the fact that the district court entered summary judgment to the other side on this partial summary judgment on this fact that there was this long stop or

[00:01:26] Speaker 05:
All of that, that is not in front of us.

[00:01:29] Speaker 05:
Correct.

[00:01:30] Speaker 05:
Only thing is in front of us is whether even though they did that, they have immunity from what they did.

[00:01:39] Speaker 01:
That's correct.

[00:01:40] Speaker 01:
And to put the timing of the stop in perspective, that eight minute redeployment is less time than it will take me to make my opening argument to you this morning.

[00:01:55] Speaker 01:
And under Supreme Court precedent, the question is not whether the investigative stop could have been shorter, but whether the officers were diligent in responding to the demands of the situation that was before them.

[00:02:08] Speaker 01:
So what I'd like to talk about this morning is the clearly established prong of the qualified immunity analysis.

[00:02:16] Speaker 01:
And the clearly established question, Your Honor, to your point, what we're talking about this morning is this.

[00:02:22] Speaker 01:
whether it was clearly established that during an investigative stop in an active gun investigation, officers violated the Fourth Amendment by briefly keeping the detainee secured while responding to a more acute, adjacent safety threat from the same incident.

[00:02:40] Speaker 01:
the essence of plaintiffs and the district court's theory.

[00:02:43] Speaker 04:
Well, counsel, can I ask, I mean, if we're looking at the clearly established prong, we have to look at it on interlocutory review in the light most favorable to plaintiffs' allegations.

[00:02:54] Speaker 04:
And you're framing this in a way that is shaded a little bit more towards the city of Fairfield and the police, right?

[00:03:01] Speaker 01:
I don't really think that's true.

[00:03:03] Speaker 01:
I mean, we have to look the totality of the circumstances, but the facts that underlie this are not disputed.

[00:03:10] Speaker 04:
Well, I guess you're proposing that, is it Officer Bassey needed to go over to that parking lot in order to help secure it?

[00:03:21] Speaker 04:
But as I understand it, there were already maybe 12 to 14 officers present.

[00:03:25] Speaker 01:
My point is not that he needed to.

[00:03:27] Speaker 01:
My point is that he had the discretion to.

[00:03:31] Speaker 01:
and that officers in the field.

[00:03:33] Speaker 04:
So how do you how do you deal with sharp, you know, which which talks about the need to be diligently pursue a means of investigation likely to confirm or or dispel reasonable suspicion.

[00:03:46] Speaker 04:
So, you know, the plaintiff has stopped on a reasonable suspicion basis because there might be a concern that there's a fireman in the car on her person.

[00:03:57] Speaker 04:
Officers are able to ascertain right away that there's no one else in the car with her, but there's this eight-minute delay in searching the car itself for the firearm as Officer Bassey goes over somewhere else.

[00:04:10] Speaker 04:
Why does that not violate clearly established law under SHARP?

[00:04:13] Speaker 01:
Because SHARP stands for the general proposition that you have to be diligent about this, but it also says you have discretion in the field to make these decisions.

[00:04:23] Speaker 01:
The clearly established prong requires- So how much would that extend?

[00:04:26] Speaker 04:
So let's say if Officer Bassey went and decided to go investigate a completely different crime, you know, and it took two hours, are we now getting into an unreasonable land or what, is there a timeframe here?

[00:04:41] Speaker 01:
Well, there is no bright line timeframe for any of this.

[00:04:45] Speaker 01:
Cases are very wide on their timeframes.

[00:04:48] Speaker 01:
But what is important is for Officer Bassey in this decision,

[00:04:52] Speaker 01:
Is that for clearly established prong we he need we need plaintiff needs to produce a case that says under these particular factual Situations where you have this missing firearm where the mission is to find this where there's this parking lot where there's a bunch of people over there the gun is missing and there's risk for crossfire that the officer Has the discretion to make the situ the decision in that moment that there are needed there?

[00:05:21] Speaker 01:
more than they are needed at this stop.

[00:05:24] Speaker 01:
And there's no case that says that, so there's nothing to instruct these officers that in that type of circumstance, they are forbidden from this.

[00:05:34] Speaker 01:
The general principles of Sharp and all of these other cases are fine as principles, but they do not help officers figure out what to do

[00:05:44] Speaker 01:
in the moment facing those facts.

[00:05:47] Speaker 01:
That's why the clearly established prong is there.

[00:05:50] Speaker 05:
What do I do with Chamberlain?

[00:05:51] Speaker 05:
The 1989th Circuit case.

[00:05:56] Speaker 05:
In that case, two individuals were approached by an officer, tempted to flee.

[00:06:03] Speaker 05:
The officer caught one of them, placed him in the back of the patrol car.

[00:06:08] Speaker 05:
He then left him, searched for the other prospect.

[00:06:12] Speaker 05:
By the time the officer returned, 20 minutes had elapsed.

[00:06:17] Speaker 05:
The Ninth Circuit held that.

[00:06:20] Speaker 05:
Although, and I'm quoting, no doubt this was reasonable good faith police work on the part of the officer, the 20 minute detention restricted Chamberlain's liberty beyond that of a Terry stop and thus constituted an arrest.

[00:06:42] Speaker 05:
Here we have Houston left in the patrol vehicle for 20 minutes.

[00:06:50] Speaker 05:
The process was delayed by Officer Bessai going to investigate the potential suspect in the parking lot.

[00:06:57] Speaker 05:
However, this case, I don't know how we're going to be distinguished because Chamberlain falls right there.

[00:07:07] Speaker 01:
Well, actually, Your Honor, Chamberlain is completely inapplicable in my view.

[00:07:12] Speaker 01:
Why?

[00:07:12] Speaker 01:
Because the clearly established prong of qualified immunity

[00:07:16] Speaker 01:
needs cases that are factually, squarely governing the situation the officers face.

[00:07:22] Speaker 05:
I tried to make it about as square as I could.

[00:07:24] Speaker 01:
Well, but Chamberlain wasn't a gun case.

[00:07:26] Speaker 01:
There was no gun involved.

[00:07:27] Speaker 01:
There was no public safety threat.

[00:07:30] Speaker 01:
There was no adjacent scene that was trying to be coordinated so that the officers could find a gun.

[00:07:35] Speaker 01:
The threat was completely different.

[00:07:38] Speaker 01:
In Chamberlain, it was a custodial interrogation.

[00:07:42] Speaker 01:
They drove somebody away from the scene.

[00:07:44] Speaker 01:
and they interrogated them for 20 minutes inside a police car.

[00:07:48] Speaker 01:
They were just hoping to see if something else had turned up to find some evidence.

[00:07:53] Speaker 01:
That is not our case.

[00:07:55] Speaker 01:
So the clearly established analysis the Supreme Court has told us over and over again is so particular about factual similarity.

[00:08:05] Speaker 01:
If you do not have a case on facts that squarely govern what these officers were faced, then you do not have clearly established authority

[00:08:14] Speaker 01:
which means the qualified immunity applies.

[00:08:17] Speaker 04:
What about the Washington case?

[00:08:19] Speaker 04:
It's briefed quite a bit.

[00:08:21] Speaker 04:
And under that Ninth Circuit precedent, our court held that under very similar facts with the level of intrusion here, that this amounted to an arrest without probable cause.

[00:08:34] Speaker 04:
Why isn't that clearly established?

[00:08:36] Speaker 01:
Thank you for that question, because Washington is probably the most important thing I can talk to you about today.

[00:08:40] Speaker 01:
Washington is the only case the district court relied on, and it is a case plaintiff heavily relies on.

[00:08:48] Speaker 01:
The facts in Washington, first of all, were very, very, very different than this.

[00:08:54] Speaker 01:
Washington just involved basically mistaken identity of two people that were having dinner at Burger King, chased them back to the hotel.

[00:09:02] Speaker 01:
They did a high-risk stop.

[00:09:04] Speaker 01:
There was some vague resemblance to some robbery suspects.

[00:09:07] Speaker 01:
That's it.

[00:09:08] Speaker 01:
There was no gun involved.

[00:09:10] Speaker 01:
There was no safety threat.

[00:09:11] Speaker 01:
There was no coordination of locations.

[00:09:14] Speaker 01:
It was a very different danger profile.

[00:09:17] Speaker 01:
The district court and plaintiff acknowledge that it's just not factually similar.

[00:09:22] Speaker 01:
Those factual distinctions are enough to

[00:09:27] Speaker 01:
to allow qualified immunity because they do not clearly establish that the officers should not have done what they were facing here.

[00:09:35] Speaker 04:
There's no established danger profile for Miss Houston.

[00:09:39] Speaker 04:
There's no criminal record on her.

[00:09:42] Speaker 04:
there's nothing to suggest that she was, you know, with these people or potentially involved in having the firearm.

[00:09:51] Speaker 04:
I just don't understand why Officer Bassey decided to go somewhere else or even Officer Reeves and not search the car right away.

[00:10:00] Speaker 01:
I understand.

[00:10:01] Speaker 04:
Had the officers searched the car and found nothing, would they have been able to detain her further?

[00:10:09] Speaker 01:
If the officers had searched the car and found nothing, then she would have been released.

[00:10:13] Speaker 04:
Then why would she be a flight risk?

[00:10:15] Speaker 04:
Because that's one of the justifications that comes up in the briefing.

[00:10:18] Speaker 04:
Why would there be a flight risk if there's no authority to detain her once you clear that suspicion?

[00:10:24] Speaker 01:
Thank you.

[00:10:25] Speaker 01:
I think that's a very legitimate question, but the problem goes back to Washington, which gets back to where we started this conversation because

[00:10:34] Speaker 01:
Washington is factually distinct, but the district court and plaintiff use it kind of the way your honor is using it now to say Washington creates this framework, these factors, these rules that we have to apply to judge whether investigative stop was reasonable or whether it turned into an arrest.

[00:10:55] Speaker 01:
Flight risk was one of those factors that the Washington court talked about.

[00:10:59] Speaker 01:
But Washington does not do that.

[00:11:01] Speaker 01:
In fact, Washington says specifically that it rejects bright line rules and that the reasonableness depends on the totality and you have to look at the contextual analysis of what is happening.

[00:11:14] Speaker 01:
What Washington did was it said, when we're looking at whether this was too intrusive,

[00:11:21] Speaker 01:
We know that there are cases that have said, in special circumstances, police officers can use

[00:11:28] Speaker 01:
more intrusive tactics.

[00:11:31] Speaker 01:
Right.

[00:11:31] Speaker 01:
And then it says, and then it gives examples, and then it gives examples of that.

[00:11:35] Speaker 03:
Let me ask my question, because you're running out of time, so I want to make sure that you have an opportunity to address my concern.

[00:11:42] Speaker 03:
Washington does talk about what's appropriate and what's clearly established in the context of a Terry stop.

[00:11:49] Speaker 03:
And I think what Washington really makes clear is that even before Washington, the law has already been clearly established that

[00:11:56] Speaker 03:
In a Terry stop situation, highly intrusive, um, detention methods are not appropriate, absent some specific danger signs, for example, or, um, extraordinary circumstances.

[00:12:11] Speaker 03:
And I don't see those in this case.

[00:12:14] Speaker 01:
The danger sign in this case is this gun.

[00:12:17] Speaker 01:
The gun is, this is not a regular traffic stop or, or just

[00:12:21] Speaker 03:
Right, we're not talking about the initial stop, right, which you said the district court resolved.

[00:12:25] Speaker 01:
No, but it continues.

[00:12:26] Speaker 01:
The gun is never found.

[00:12:27] Speaker 01:
This gun is out there somewhere.

[00:12:29] Speaker 01:
The mission of these officers is to find this gun and stop the shooting.

[00:12:32] Speaker 03:
But what ties her to this particular, at the point that they handcuffed her and put her in the car and kept her there?

[00:12:38] Speaker 01:
And this is going to get back to what Your Honor was talking about in terms of the risk profile and how this facts.

[00:12:44] Speaker 01:
Washington's factors, Washington's examples that it cites for special circumstances.

[00:12:51] Speaker 01:
all are done in the context of Washington, which focuses on the risk posed by the detainee, which is what you're talking about.

[00:13:03] Speaker 01:
In this case, the officers responding to this gun call with the missing firearm and multiple people over there, and the risk came not from the detainee so much as it came from the missing gun.

[00:13:17] Speaker 01:
So

[00:13:20] Speaker 01:
Washington is evaluating intrusiveness based on the danger of the detainees that they had.

[00:13:27] Speaker 01:
And when the detainee is a source of the risk.

[00:13:29] Speaker 03:
So your argument is that nothing specific as to Ms.

[00:13:32] Speaker 03:
Houston, the fact that there was a gun out there somewhere on the scene, that basically justifies the detention here.

[00:13:38] Speaker 01:
This is what I'm getting to.

[00:13:40] Speaker 01:
When the source of the risk is the detainee, then once they are secured, the justification for

[00:13:47] Speaker 01:
continuing to detain them, to restrain them is over.

[00:13:52] Speaker 01:
But when the safety risk is not the detainee but the circumstances that they're facing that she is connected to, the justification for continuing to detain her remains, you cannot let her go.

[00:14:06] Speaker 04:
I don't know any case that extends Terry in such a broad manner as you're describing because

[00:14:13] Speaker 04:
the whole purpose of the Terry stop is you don't have probable cause to arrest someone but in order to secure the safety of the officers or those in the immediate surroundings you can perform a you know a type of protective search to make sure that everything is okay but you're but you're saying we don't need to look at at Houston herself for any kind of a risk profile we can justify extending a Terry stop

[00:14:38] Speaker 04:
over this broader thing where there's a slew of other officers somewhere else, what's the case that would even support that kind of idea?

[00:14:49] Speaker 01:
Number one, Miss Houston is still involved in this from a safety point of view because you cannot unrestrain her until that car is searched.

[00:14:57] Speaker 01:
The gun can be in that car, there's still a danger and so

[00:15:01] Speaker 01:
it's still appropriate to restrain her.

[00:15:04] Speaker 01:
But the bigger point is, we're not looking for cases that disprove what these officers are doing.

[00:15:11] Speaker 01:
We're looking for cases under the clearly established prong that specifically instruct them that what they are doing is unlawful.

[00:15:19] Speaker 03:
All right, counsel, you're actually over time, but I'll put a couple of minutes back on the clock for your rebuttal.

[00:15:23] Speaker 03:
I know you wanted to save a few minutes.

[00:15:26] Speaker 03:
Thank you very much.

[00:15:34] Speaker 03:
Good morning, Your Honors.

[00:15:35] Speaker 03:
Is there sharing time in this case, too?

[00:15:36] Speaker 02:
We are sharing time, yes.

[00:15:38] Speaker 03:
Are you splitting issues as well, or just sharing time?

[00:15:40] Speaker 02:
We're splitting it.

[00:15:41] Speaker 02:
We'll see how it goes, but I have co-counsel Mr. Schmidt here, and he was counsel in the district court, so he's hoping to shed some light on some of the facts and concessions that were made there.

[00:15:54] Speaker 02:
So thank you, Your Honors.

[00:15:57] Speaker 02:
I represent Miss Houston, and I'm gonna start first where we left off, which is whether Washington, whether that analysis looks at whether Miss Houston is a risk or whether it can consider whether other people is a risk.

[00:16:13] Speaker 02:
And I think that all of the line of cases of Washington and all that follows are looking at whether the person is a risk to justify those intrusive measures.

[00:16:23] Speaker 02:
And the district court is correct to view it that way as well.

[00:16:26] Speaker 02:
That's why the district court says that what's happening in the parking lot doesn't affect whether Ms.

[00:16:30] Speaker 02:
Houston is dangerous under those Washington factors.

[00:16:34] Speaker 02:
And so I don't think you need more than Washington, but even if we did, we have CLOI.

[00:16:39] Speaker 02:
That's another Ninth Circuit opinion where it actually, those officers in CLOI faced

[00:16:46] Speaker 02:
the identical risk level is here.

[00:16:47] Speaker 02:
In that case, an apartment manager had called in and said, reported that he saw two people with a gun.

[00:16:53] Speaker 02:
When the officers arrive, they don't see anything but a peaceful scenario.

[00:16:57] Speaker 02:
And yet, everybody's in handcuffs because they want to look for the gun and handcuff first and then investigate later.

[00:17:06] Speaker 02:
That case stands for the proposition that you can't handcuff a non-suspect because you're worried that there's a report that somebody else has a gun.

[00:17:15] Speaker 02:
That puts these officers on notice that Miss Houston can't sit handcuffed in a patrol car because they're worried about a report that somebody earlier had a gun.

[00:17:24] Speaker 02:
And I do think also it's important that there's sort of two aspects to what makes a Terry stop into an arrest.

[00:17:35] Speaker 02:
It's the methods used.

[00:17:36] Speaker 02:
And it's also the time.

[00:17:38] Speaker 02:
But they're governed by different standards.

[00:17:40] Speaker 02:
When they're looking at the intrusiveness of the methods, at the handcuffing, keeping in a patrol car, then they're talking about safety.

[00:17:48] Speaker 02:
And they're saying, does this person pose a safety threat?

[00:17:51] Speaker 02:
When you're talking about the amount of time, that's where you come to the sharp Roy or Evans line of cases.

[00:17:58] Speaker 02:
And that looks at whether the officers diligently perform an investigation that's likely to confirm or dispel

[00:18:06] Speaker 03:
On that diligence inquiry, what I hear counsel arguing is that while there was another scene that needed to be taken care of, they hadn't completely made the determination that the gun wasn't in her car and that justifies the prolonged detention.

[00:18:25] Speaker 03:
How do you respond to that?

[00:18:26] Speaker 02:
The response to that is that it depends on whether we're talking about you know logistics and manpower which they've discussed a lot as being a justification to abandon their their.

[00:18:38] Speaker 02:
They're quickly searching to see whether Miss Houston, the gun is in her car.

[00:18:43] Speaker 02:
To that extent, Chamberlain governs.

[00:18:47] Speaker 02:
Chamberlain stands for the proposition that if you don't have probable cause, there that's one officer, he comes across two people he has reason to suspect, reason to detain, and they're both flee.

[00:19:01] Speaker 02:
He catches one, stuffs them in the car, and then is actively pursuing the other because he wants to detain that person.

[00:19:07] Speaker 02:
That stands for the proposition that you can't hold one person on reasonable suspicion in order to execute a detention of another person on reasonable suspicion.

[00:19:16] Speaker 02:
And that's even if they're suspected of the same crime.

[00:19:19] Speaker 02:
So here, that puts them on notice.

[00:19:21] Speaker 02:
They can't stop.

[00:19:23] Speaker 02:
investigating Miss Houston in order to go detain and then there's also the problem.

[00:19:28] Speaker 04:
Would it be different if the number of officers in the parking lot were clearly understaffed, you know, two of them facing a whole crowd of people, would that change the circumstances in some way?

[00:19:39] Speaker 02:
It doesn't in the sense that Chamberlain, there's only one officer, and he can't catch that second person unless he holds the first.

[00:19:45] Speaker 02:
I mean, so no, manpower alone, to the extent that's a safety risk.

[00:19:49] Speaker 02:
Well, then you're talking about, again, we've got Si'aloi, where you can't hold someone based on the safety risk.

[00:19:58] Speaker 02:
You know you perceive that somebody else poses in here specifically a report that somebody once had a gun where they're not facing anything.

[00:20:05] Speaker 02:
There's no active scenario and I did want to address that as well you know they characterize this I think it's important and misleading to characterize this as an active gun threat because.

[00:20:16] Speaker 02:
They have this prior report, but when they arrive on scene, Hill observes it for several minutes.

[00:20:22] Speaker 02:
It's peaceful.

[00:20:23] Speaker 02:
People are chatting.

[00:20:24] Speaker 02:
They're shopping.

[00:20:26] Speaker 02:
There's nothing active about it.

[00:20:28] Speaker 02:
And even when the police come in and start seizing everybody, there's no report that somebody is resisting arrest.

[00:20:36] Speaker 02:
Nobody ever pops up with a gun.

[00:20:37] Speaker 02:
This is not active.

[00:20:39] Speaker 02:
It's the exact identical threat level to Sealoy, which that case makes clear.

[00:20:46] Speaker 02:
safety measures these handcuffing and putting miss houston in a patrol car is not justified by a Report that somebody else has a gun they know she's not a suspect And you only need washington for that the reason they in washington there was a scary bank robbery But they can't hold those people because they're not the suspect so Let's see

[00:21:10] Speaker 04:
What about, uh, officer Reeves not doing anything during, I mean, does that, is that, is that an argument more towards the diligence side of things or, or, or both?

[00:21:21] Speaker 02:
It's an argument that it's unnecessarily intrusive, that it was overlong.

[00:21:27] Speaker 02:
I don't think we need Reeves because the way the district court looked at it is correct.

[00:21:32] Speaker 02:
When they stop her, they have four officers.

[00:21:35] Speaker 02:
They're sending them over one by one, but they have plenty of officers to have her stand next to them while they briefly ascertain whether that gun is in her car.

[00:21:45] Speaker 02:
As to Reeves,

[00:21:47] Speaker 02:
Specifically, there's no evidence that one person can't execute a search of the car.

[00:21:54] Speaker 02:
He is there with her.

[00:21:56] Speaker 02:
She's compliant.

[00:21:57] Speaker 02:
She's unarmed.

[00:21:58] Speaker 02:
You know, at most they come up on reply with,

[00:22:01] Speaker 02:
a citation to a lexical policy cited for the first time on reply in an appellate brief, not in evidence of the district court.

[00:22:10] Speaker 02:
And most importantly, we don't have the benefit of expert testimony to say what it means to leave someone unattended in a car.

[00:22:16] Speaker 02:
Her car is parked directly in front of his.

[00:22:19] Speaker 02:
Our position is he could have executed.

[00:22:21] Speaker 02:
But we don't even need that, because what's key is, and the way the district court looks at it, is that the violation here is that when she's stopped, there are four officers attending to her

[00:22:30] Speaker 02:
She is compliant.

[00:22:32] Speaker 02:
They frisk her.

[00:22:33] Speaker 02:
She's unarmed.

[00:22:34] Speaker 02:
Once they've cleared the car, the violation is that she then spends 17 minutes in a patrol car, handcuffed, without a safety justification specific to her,

[00:22:46] Speaker 02:
And additionally, that eight minutes that's longer, I mean, this court has said that's not de minimis.

[00:22:51] Speaker 02:
There's multiple cases.

[00:22:52] Speaker 02:
That's Evans and Rodriguez.

[00:22:56] Speaker 02:
Both, these are eight minute extensions that they find a constitutional violation because they exceed the limits of a Terry stop.

[00:23:04] Speaker 05:
If we look here, it seems to me you're arguing two constitutional violations.

[00:23:11] Speaker 05:
One, that the detainer was overly intrusive,

[00:23:17] Speaker 05:
and two, that it was unreasonably prolonged.

[00:23:20] Speaker 05:
Is that true?

[00:23:21] Speaker 02:
That is true.

[00:23:23] Speaker 05:
So what is your best case for that it was overly intrusive?

[00:23:29] Speaker 02:
That it was overly intrusive?

[00:23:31] Speaker 02:
The best case

[00:23:34] Speaker 05:
is washing all you need is washington well you could do washington but there are some there are some differences in washington have you looked at delviso yes delviso delviso that's a great case too because what's similar about that case

[00:23:50] Speaker 02:
is that there was a hypothetical, the court interprets that case in Washington, that's a case where they suspect the person of being a drug dealer, they pull them over, but they say once he's out of the car, once he's unarmed, once he's away from the van, he poses no further risk to the officers and intrusive measures are not justified.

[00:24:09] Speaker 05:
So that really speaks more

[00:24:11] Speaker 05:
to the overly intrusive, really, than Washington itself, doesn't it?

[00:24:16] Speaker 02:
Yes, thank you, Your Honor.

[00:24:17] Speaker 02:
That is my best case.

[00:24:18] Speaker 02:
Yes, I agree.

[00:24:19] Speaker 05:
All I'm trying to do is sum this up because I said, okay, what's this lady really after?

[00:24:26] Speaker 05:
She thinks it's overly intrusive and she thinks it's unreasonably prolonged.

[00:24:31] Speaker 05:
So I ask her about the unreasonably prolonged, and I ask you about the overly intrusive, and I'm just trying to make sure I'm on the right boat.

[00:24:39] Speaker 02:
And I want to note that the district court found both, had found both that it's using unreasonably intrusive.

[00:24:45] Speaker 02:
Yes, yes.

[00:24:46] Speaker 03:
You're in agreement with your esteemed colleague on the other side that there's no factual disputes here, right?

[00:24:54] Speaker 03:
We're here only to determine whether under these undisputed facts qualified immunity applies.

[00:24:58] Speaker 02:
Yes, I mean, and we have the facts under for qualified immunity.

[00:25:02] Speaker 02:
All of those facts, to the extent there were a dispute, are viewed in our favor.

[00:25:05] Speaker 02:
And they, you know, there's no there's video evidence, extensive video evidence in this case.

[00:25:10] Speaker 02:
So it's an easy call to.

[00:25:13] Speaker 02:
Well, I asked because of the summary judgment ruling in this case, too.

[00:25:16] Speaker 02:
Yes, they've made quite clear that's not at issue.

[00:25:19] Speaker 02:
And because of all that video evidence, because there's no, you know, they're not saying maybe she was uncompliant, maybe she was.

[00:25:27] Speaker 02:
It's clear what happened here.

[00:25:29] Speaker 02:
It's clear what the threat level was.

[00:25:31] Speaker 02:
There's no argument that somebody popped up, somebody was misbehaving.

[00:25:35] Speaker 02:
And I see my time is up, so I'll.

[00:25:38] Speaker 02:
Thank you, counsel.

[00:25:45] Speaker 00:
Good morning, your honors.

[00:25:46] Speaker 00:
May it please the court.

[00:25:47] Speaker 00:
Sanjay Schmidt here and our client, Miss Houston, is present in court.

[00:25:53] Speaker 00:
I wanted to address the diligence issue briefly.

[00:25:57] Speaker 00:
After Miss Houston's car had been cleared of any occupants and after she had been extracted from her vehicle at gunpoint, handcuffed, and then searched, she's placed in the car and

[00:26:13] Speaker 00:
Appellant officer Bassey states quote we'll just stuff right here for a few and that's as he closed the door on her as she looked out Wondering how long she's gonna be in the car and that's at 645 on his body-worn camera and in response to officer Bassey stating we'll just stuff right here for a few Appellant sergeant Reeves states.

[00:26:34] Speaker 00:
No, that's fine.

[00:26:35] Speaker 00:
We're not in a hurry and I would respectfully submit far more diligence was due

[00:26:42] Speaker 00:
Fourth Amendment demanded far more diligence than we'll just suffer for a few.

[00:26:46] Speaker 00:
That's okay, we're not in a hurry.

[00:26:48] Speaker 00:
Clearly established Fourth Amendment law put the officers on clear notice that they were required to diligently pursue a means of investigation likely to confirm or dispel their suspicions with respect to Ms.

[00:27:01] Speaker 00:
Houston quickly.

[00:27:04] Speaker 00:
And that's all on pages 64 through 66.

[00:27:06] Speaker 05:
So we're really talking about unreasonably prolonged here?

[00:27:11] Speaker 00:
Your honor, there's, you know.

[00:27:15] Speaker 05:
I mean, I've just got your two issues that... Okay.

[00:27:18] Speaker 05:
Council said, and I'm trying to focus now your argument onto one of those issues.

[00:27:24] Speaker 05:
Doesn't seem to me really that you're talking about overly intrusive.

[00:27:28] Speaker 05:
You're saying they should have been more diligent so they unreasonably prolonged.

[00:27:32] Speaker 05:
Is that what you're arguing?

[00:27:33] Speaker 00:
Well, I think that both those violations

[00:27:36] Speaker 05:
I don't find any case law that says they got to be diligent necessary because diligent is but When what I'm trying to figure out is how do the police officers know and that's why I ask you the question How do what case tells them?

[00:27:54] Speaker 00:
Well, we say sharp we say versus Evans we and

[00:28:01] Speaker 00:
We're assuming, based on this qualified immunity theory, that police officers read Ninth Circuit opinions and Supreme Court opinions.

[00:28:10] Speaker 00:
And so based on that premise, we have to assume that the police officers had read Washington, that they had read del Viso, that they had read Chamberlain, and they had read Sharp.

[00:28:21] Speaker 00:
And based on the Polanco case, which is cited in our brief, who established law in order to defeat qualified immunity,

[00:28:31] Speaker 00:
A plaintiff can synthesize the holdings of all the different cases in order to address different phases and different components of an incident.

[00:28:40] Speaker 00:
Now, the other fact that I wanted to point out to your honors is that the appellants have characterized this incident as very unique and

[00:28:56] Speaker 00:
Unforeseeable, I'm paraphrasing, but that's how they've characterized it.

[00:29:01] Speaker 00:
However, that's completely contradicted by the testimony of their own officers.

[00:29:06] Speaker 00:
In the words of Officer Smith, who is present, this incident was very unspectacular.

[00:29:11] Speaker 00:
Nothing stood out.

[00:29:13] Speaker 00:
And that is at ER 1033 through 1034.

[00:29:17] Speaker 00:
There was never a meeting to debrief about this incident.

[00:29:20] Speaker 00:
And the reason is because this was a standard operating procedure for the city of Fairfield.

[00:29:25] Speaker 00:
Anytime there was any kind of a gun call, they would freeze the scene.

[00:29:29] Speaker 00:
And as laudable as that might be, we know from Ibarra and Cebron, which are clearly established Fourth Amendment cases, the Fourth Amendment protects people, not places.

[00:29:41] Speaker 00:
And essentially, the only suspicion that they had as to any of the individuals that were seized over at the parking lot was that they were in mere propinquity to another individual who had been misidentified

[00:29:55] Speaker 00:
unfortunately by the dispatcher.

[00:29:57] Speaker 04:
We're not looking at any Monell issues here on appeal though.

[00:30:01] Speaker 00:
On appeal we're not.

[00:30:02] Speaker 00:
But the import of that is that this was not an unusual scenario, it wasn't unique.

[00:30:10] Speaker 00:
And I wanted to point out one other important fact, which is that the seizure order was issued by Hill 42 seconds before any man ever walked up to Ms.

[00:30:18] Speaker 00:
Houston's car and conversed with her as she pulled out.

[00:30:21] Speaker 00:
And I know that

[00:30:22] Speaker 00:
Technically they can still rely on that and view that but I just want to point out that miss Houston and the clearly established the undisputed evidence establishes She was going to be seized no matter what?

[00:30:35] Speaker 00:
Because the seizure order was issued and Hill admitted that that when he when he issued that order she was going to be pulled over no matter what now one other brief fact that I wanted to point out for the court with respect to

[00:30:50] Speaker 00:
the characterization of this as an active gun threat.

[00:30:54] Speaker 00:
There was no active gun threat because this gun was never pointed.

[00:30:57] Speaker 00:
The undisputed evidence established that it was never shot.

[00:31:01] Speaker 00:
We had at most facts that established a misdemeanor brandishing offense.

[00:31:06] Speaker 00:
They all admitted that they had no facts upon which to base any suspicion that a felony had been committed.

[00:31:13] Speaker 00:
Now, I know in their reply brief, they raised the question of, well, maybe the man who had committed the brandishing could be a felon.

[00:31:21] Speaker 00:
They didn't know that.

[00:31:21] Speaker 00:
They had no facts to support that.

[00:31:23] Speaker 00:
It was equally possible the man who possessed the firearm was lawfully in possession of it, and he had withdrawn it from the backpack

[00:31:31] Speaker 00:
In self-defense, and he might have lawfully been in possession of the gun.

[00:31:35] Speaker 00:
We don't know either way the only fact all right Thank you counsel.

[00:31:38] Speaker 01:
Thank you You can put two minutes on the clock Okay, just a couple quick points and try to

[00:31:58] Speaker 01:
encapsulate all of this in pieces that we can easily digest.

[00:32:02] Speaker 01:
First of all, we're talking about the clearly established prong of the qualified immunity analysis, and not a single case that counsel briefed or that counsel talked to you about this morning squarely governs factually the case before these officers.

[00:32:20] Speaker 01:
That is fatal to a clearly established qualified immunity argument that qualified immunity doesn't apply.

[00:32:28] Speaker 01:
They have to be factually.

[00:32:29] Speaker 01:
Del Fiso, which counsel said was their best case, was a drug investigation case.

[00:32:34] Speaker 01:
It didn't have any facts like this.

[00:32:38] Speaker 01:
The Salil case was a birthday party case, where the officers went to a birthday party and didn't have any information.

[00:32:47] Speaker 01:
They got the wrong people, and they just handcuffed a whole party of kids.

[00:32:50] Speaker 01:
They searched people's houses.

[00:32:52] Speaker 01:
They didn't have any basis for doing that.

[00:32:55] Speaker 01:
Not these facts.

[00:32:57] Speaker 01:
Chamberlain, Washington, Evans and Rodriguez are routine traffic stop cases that were completed and then the officers extended them to do drug investigations.

[00:33:06] Speaker 01:
None of that has anything to do with the case factually that is before the court now.

[00:33:11] Speaker 01:
Second, with respect to the diligence, the district court

[00:33:22] Speaker 01:
The district court found that the only issue was the eight minutes.

[00:33:25] Speaker 01:
It didn't find that the handcuffs and putting her in the patrol car were too intrusive.

[00:33:29] Speaker 01:
It found it was intrusive because she sat there for the extended period of eight minutes.

[00:33:35] Speaker 01:
That's the issue.

[00:33:36] Speaker 05:
The reason that Officer Reeves could not- That's why Chamberlain seems pretty important because in that instance it was somewhat similar, no gun surrounding the whole thing which you constantly suggested, but in that case it was absolutely clear and it was before this particular case that it was too long to go do something else.

[00:34:01] Speaker 01:
Well, what the officers were doing in this case, the other thing that they were doing in this case was directly related to the problem that they were all responding to.

[00:34:09] Speaker 01:
It was a single unified response and they were coordinating their efforts over the parking lot and the car.

[00:34:17] Speaker 01:
This was not a random stop for plaintiff.

[00:34:20] Speaker 01:
They watched this somebody, a suspect in the parking lot, lean into the car and they couldn't see the hands and they had reasonable suspicion to think the gun was in there.

[00:34:29] Speaker 01:
That's why it was important for her to be continued to be restrained.

[00:34:34] Speaker 01:
It was a safety risk.

[00:34:36] Speaker 01:
Officer Reeves could not leave her alone in that car and go search while Officer Bazzie was gone because he has an obligation to attend to her.

[00:34:45] Speaker 01:
The door had to be open because it was very hot and she was complaining about her breathing issues with her asthma.

[00:34:52] Speaker 03:
I think we've got your argument, counsel.

[00:34:55] Speaker 03:
I thank all counsel for your arguments this morning.

[00:34:57] Speaker 03:
We appreciate it.

[00:34:58] Speaker 03:
The matter submitted and the court is in recess until nine o'clock tomorrow.