[00:00:01] Speaker 00:
Good morning, Your Honors, and may it please the court. My name is Brian Eggleston, and I represent appellant James Adgar in this appeal.

[00:00:11] Speaker 00:
This is a case about the line between negligence and constitutional liability. The jury in this case found that Mr. Johnson was injured by a foam baton round that was fired by the defendant, James Adgar, and that finding is not the focus of this appeal.

[00:00:29] Speaker 00:
The question here is whether the evidence and the law support the jury's additional judgments in favor of Mr. Johnson, finding that defendant Adger violated Mr. Johnson's Fourth Amendment rights, and they do not.

[00:00:49] Speaker 00:
That general question comprises three issues that are the main points of contention here. The first is whether the undisputed facts at trial could even constitute an unreasonable force under the governing law.

[00:01:05] Speaker 00:
The second is whether Officer Adgar was on fair notice that his specific conduct in this specific situation that he faced would be unlawful. And finally, whether the evidence at trial was sufficient to establish that the objective target of Mr. Adgar's force was the crowd at large rather than some specific bottle thrower.

[00:01:34] Speaker 03:
Counsel, I have a preliminary question before you get to that. If hypothetically we were to agree with you on either the Fourth Amendment or the Bain Act or both, what would be the practical effect, if any, of such a decision?

[00:01:52] Speaker 00:
So it would primarily affect the attorney's fees award. It would remand, depending upon whether both the Bain Act and the 1983 claims were reversed, either a remand would be appropriate or a complete vacator of the attorney's fee award.

[00:02:15] Speaker 03:
But it wouldn't affect the undifferentiated jury damage award?

[00:02:20] Speaker 00:
That's correct.

[00:02:21] Speaker 03:
Thank you, counsel.

[00:02:24] Speaker 00:
With respect to the reasonableness of Officer Adgar's force in this context, Puente and Shears have both made clear that in the context of a violent protest, officers are not limited to treating a hostile crowd as it would a group of peaceful students at a college party. Well, college parties can get Kind of rowdy. And they certainly can. And we would be looking at something different than Nelson if the specific group of partiers.

[00:03:03] Speaker 02:
What was violent about this incident on the night in question?

[00:03:08] Speaker 00:
Individuals were from the crowd at City Hall Plaza were throwing objects at officers.

[00:03:16] Speaker 02:
Do we know how many individuals were throwing objects?

[00:03:19] Speaker 00:
We don't know the number of individuals.

[00:03:22] Speaker 02:
What were they throwing?

[00:03:25] Speaker 00:
What could be found afterwards?

[00:03:29] Speaker 02:
During the jury trial, what evidence came out about what they were throwing?

[00:03:33] Speaker 00:
The ones that were found were bottles of water.

[00:03:37] Speaker 02:
Plastic bottles of water or glass bottles of water?

[00:03:41] Speaker 00:
I think they were turned out to be plastic bottles, to the best of my recollection, although

[00:03:48] Speaker 02:
That was Mr. Johnson seen throwing bottles of plastic water?

[00:03:52] Speaker 00:
Mr. Johnson did not throw any bottles, and that is uncontested.

[00:03:56] Speaker 02:
Was he close by the individuals that were seen throwing bottles of water?

[00:04:02] Speaker 00:
Yes, he actually did, upon cross-examination, when he watched the videos, he did admit that although he had not seen anyone near him throwing bottles, that the video actually did show at least one bottle being thrown from his vicinity. And so, yes, our contention is that someone in his vicinity was throwing the bottle.

[00:04:23] Speaker 02:
So other than throwing the plastic bottles, is there any other serious incidents that took place that night?

[00:04:34] Speaker 00:
Well, I think with respect to the throwing of the plastic bottles.

[00:04:39] Speaker 00:
Around the time that he was hit with hard foam, whatever it's called? There were two rounds of objects being thrown at the police officers that at the time they did not know were plastic water bottles. They just knew that things were being thrown at them.

[00:04:55] Speaker 00:
Even if they were able to make out that they were bottles in midair, they didn't know what those bottles were.

[00:05:01] Speaker 02:
Your position is that the throwing of these bottles, whatever they might have been, sufficiently distinguishes this case from, what is it, Nelson?

[00:05:14] Speaker 00:
That's correct. And in fact, plaintiff's own expert witnesses conceded that intermediate force would be an appropriate level of force to use against someone who is throwing bottles of water at the officers.

[00:05:26] Speaker 04:
I mean, it's a felony, right, under California law to assault a police officer.

[00:05:30] Speaker 00:
That's correct. And so although the two incidents, even if we assume that no other objects were thrown than the ones that were found, the plastic water bottles, That is still a very serious threat.

[00:05:47] Speaker 04:
I thought there was some testimony in the record. Maybe it was from the riot of the day before that rocks were also being thrown at officers.

[00:05:57] Speaker 00:
That is true. And, of course, I actually don't know if this came out at trial, but the construction site across the street, the police were standing between

[00:06:12] Speaker 04:
the bottle throwers, and the construction site where a lot of... The crowd from getting access to more things that could be thrown. Correct. Besides water bottles.

[00:06:22] Speaker 02:
So is it your position that the situation, the use of intermediate force, was entirely reasonable?

[00:06:29] Speaker 03:
Correct, yes.

[00:06:31] Speaker 03:
So, Counsel, if we were to hypothetically find that your clients were entitled to qualified immunity on the Fourth Amendment claim. Totally a hypothetical question.

[00:06:51] Speaker 03:
What is your view on whether we should certify to the California Supreme Court questions regarding the interplay between qualified immunity and the standard required for demonstrating a violation of the Bain Act where qualified immunity per se doesn't apply.

[00:07:16] Speaker 00:
And I think, although we would, of course, not object to the courts doing that, I don't think that it's necessary. I think that currently existing law actually provides all of the pieces to answer that question.

[00:07:31] Speaker 03:
How is that possible, given the jury's verdict? What what piece, even if we found that there was qualified immunity, what piece, in your view, is missing from the Bain Act claim?

[00:07:45] Speaker 00:
And it's specifically on the first prong of the Bain Act analysis, whether the right of issue was clearly delineated and plainly applicable to the case.

[00:07:55] Speaker 00:
Importantly, that standard was adopted by this court in Reese, which explicitly recognized that it was taking that from the Cornell State Court case.

[00:08:08] Speaker 03:
That's the Court of Appeal case, right?

[00:08:10] Speaker 00:
Yes.

[00:08:11] Speaker 03:
And so I understand we said it, but I'm not sure exactly what it means vis-a-vis qualified immunity, because on the one hand, if qualified immunity were applicable to the Bain Act, it would be easy, but it's not. And so I'll tell you, it's unclear to me what the California Supreme Court would say about when you have qualified immunity, but you arguably have a reckless violation of someone's constitutional right, which works.

[00:08:50] Speaker 03:
The legal standard that you just referenced, is that met? How does a court make a determination as a matter of law how it's met?

[00:08:59] Speaker 00:
And I think that the way that the court reaches that is first by noting that Reese specifically said that they had no reason to believe that the Supreme Court of California would not adopt the reasoning of Cornell. And Cornell, although it doesn't explicitly address the issue, actually implies that it is a very similar standard to qualified immunity, specifically in adopting the clearly delineated and plainly applicable standard, they were adopting the standard initially announced by the United States Supreme Court in Screws versus United States.

[00:09:42] Speaker 00:
And they said that the basis for doing that was that they believed that the Bain Act was modeled after the same federal criminal statute that was being interpreted by the Supreme Court in Screws.

[00:09:55] Speaker 04:
And although Cruz dealt with with the criminal provisions under Title 18, sections 241 and 242. Right. Correct. And and this is the civil provision under Section 1983 of Title 42.

[00:10:13] Speaker 00:
Correct. And so I think that's the additional link. The the Cornell court said that they were adopting the screw standard, but.

[00:10:22] Speaker 00:
even before the Cornell case.

[00:10:23] Speaker 04:
But the Cruz standard is a criminal standard. As I recall, it was adopted around the time of the Civil War in order to address the problems of local sheriffs hanging black inmates in the courthouse square.

[00:10:40] Speaker 00:
And that's correct. And the Cornell court did recognize that the standard they were adopting came from the interpretation of criminal statutes. But their explanation was that they found that that distinction did not matter because they believed the legislature adopted a hybrid approach, adopting certain aspects of 1983 and certain aspects of Sections 241 and 242.

[00:11:06] Speaker 04:
So it's a hybrid of civil and criminal meaning of what constitutes an intentional violation of a constitutional right?

[00:11:18] Speaker 00:
That's at least how they described the structure of the Bain Act.

[00:11:22] Speaker 04:
They said that it was a hybrid of the civil... I'm not sure that answers Judge Bennett's question.

[00:11:30] Speaker 00:
That's correct. One additional link is necessary, which is the relationship between the SCRU standard and the 1983 Qualified Immunity Standard.

[00:11:42] Speaker 04:
So shouldn't we give the California Supreme Court the opportunity to clarify California law for us on this issue rather than decide it ourselves?

[00:11:54] Speaker 00:
I don't think that's necessary because at the time that Cornell was decided, the United States Supreme Court had already decided the case of United States v. Lanier, which is 520 U.S.

[00:12:05] UNKNOWN:
259.

[00:12:05] Speaker 00:
And in that case, They actually explicitly discussed the relationship between the standard under screws and the qualified immunity standard. They said that they serve the same purpose of ensuring that the defendant is on fair notice, that their conduct was prohibited. And they say that although one exists in the criminal realm and one exists in the civil realm, that distinction is of no significance with respect to this issue.

[00:12:38] Speaker 02:
Do you think the California Supreme Court is going to adopt that?

[00:12:41] Speaker 00:
Well, I think that the panel in Reese already said that they have no reason to believe the California Supreme Court would not adopt that. And so that's why I believe it can be answered.

[00:12:53] Speaker 02:
And you don't see any difference between qualified immunity and the standards that the Reese court pointed out?

[00:13:00] Speaker 00:
I mean, I think on its face, clearly delineated and plainly applicable really are synonyms for the qualified immunity standard.

[00:13:09] Speaker 03:
And this is not notwithstanding the fact that there is no qualified immunity for Bain Act violations.

[00:13:16] Speaker 00:
That's correct, because there is the additional element of specific intent. And the specific intent element is the standard under screws. And the United States Supreme Court has pointed out that the standard under screws is essentially the civil or the excuse.

[00:13:35] Speaker 02:
I was going to say, you didn't challenge any of the jury instructions related to the Bain Act, did you?

[00:13:41] Speaker 00:
I don't believe so, no. But this issue is a legal issue, right? This is a legal issue. That's correct.

[00:13:49] Speaker 02:
And so I think – and irrespective of the jury's – But we do have to take the jury's – we have to construe the jury's verdict on the factual side in favor of upholding the verdict, correct?

[00:14:01] Speaker 00:
So we do have to construe the record favorably to the jury's verdict with respect to the second prong of the specific intent standard. But the first prong is specifically a question only for the court, and that question is whether the right at issue was clearly delineated and plainly applicable to the case before the officer.

[00:14:22] Speaker 00:
And so because United States v. Lanier had already clarified before Cornell issued even happened, that qualified immunity and the SCRU standards are simply civil and criminal versions of essentially the same mechanism of ensuring fair notice. I think that it is unnecessary to certify this to the California Supreme Court to conclude that the standard for qualified immunity and the specific intent standard are substantively identical.

[00:14:56] Speaker 00:
Well, the problem is that they're

[00:14:58] Speaker 04:
they're subject to differing standards of proof, right? One is proof beyond a reasonable doubt, and the other is by preponderance of the evidence.

[00:15:07] Speaker 00:
And that's actually exactly what the Cornell Court noted when they were discussing the fact that they were adopting the SCRU standard. They noted that, of course, the standards of proof in the two situations are different, but they see no reason to distinguish between the standards.

[00:15:24] Speaker 04:
But you can be liable under Section 1983...

[00:15:28] Speaker 04:
for the violation of a constitutional right without regard to your mens rea and the law was clearly established at the time you acted that you should have known that your conduct would violate the constitutional right. And that's different from having the specific intent to deprive the plaintiff of his constitutional rights when you act. Is it not?

[00:15:56] Speaker 00:
I acknowledge that there is – some oddness in the fact that the clearly delineated and plainly applicable standards.

[00:16:04] Speaker 04:
There's a significant legal difference.

[00:16:06] Speaker 00:
Yeah.

[00:16:07] Speaker 04:
And it's not just a subtle nuance.

[00:16:10] Speaker 00:
Well, but the courts have actually said that the plainly applicable and clearly applicable is objective. The point is that the officer was on notice that the conduct would be unlawful. And so when you say the courts, who are you referring to? Oh, so I both I believe the successor to Cornell and I actually don't.

[00:16:40] Speaker 03:
But the California courts of appeal is referring to not but included in the courts, as you use the term, did not include the California Supreme Court.

[00:16:48] Speaker 00:
That's that's correct.

[00:16:51] Speaker 00:
But that's. So I think that, I mean, the tension is that the standard adopted is an objective one, and it's being adopted under language that appears to be subjective.

[00:17:01] Speaker 03:
Let me ask you one other question, and I'm going to ask your friends this question as well. Given that a reversal of the Bain Act count would not result in a change in the jury verdict, right? That's correct. At least as to damages. As to damages, it might theoretically as to attorney's fees.

[00:17:27] Speaker 03:
Is it your view that under the California rule, this would, and I don't have the language in front of me, be determinative of the cause such that it would qualify for being certified if it wouldn't affect the amount the jury awarded but might affect attorney's fees and keeping the Bain Act count?

[00:17:49] Speaker 03:
as a basis for liability.

[00:17:54] Speaker 00:
And I'm also speaking from memory. I believe the language is that it could determine the outcome of the case. Yes. And I think that it is fair to say that the case in this instance encompasses all appealable orders that have been appealed.

[00:18:10] Speaker 03:
Even if it wouldn't change the number.

[00:18:13] Speaker 00:
That's true. That's correct. Because at base, we're not contending that the negligence verdict needs to be overturned. And so that we're really not appealing the damages award in any sense.

[00:18:26] Speaker 03:
Thank you. Did my colleagues have any more questions? Thank you, counsel. We took up a lot of your time. We'll give you two minutes for rebuttal.

[00:18:33] Speaker 00:
Thank you.

[00:18:57] Speaker 01:
Good morning, Your Honors, and may it please the Court. My name is Abimael Bastida. I represent Plaintiff Appellee Kyle Johnson. I'll begin by addressing the Court's questions in its order regarding the appropriateness of certifying various questions to the California Supreme Court.

[00:19:14] Speaker 01:
And I'll answer it like this.

[00:19:16] Speaker 01:
In this case, it is not necessary because the controlling law at play both in the State Appellate Court and the way the federal courts have applied Cornell including the Ninth Circuit in Reese, the Ninth Circuit in Chinurean, a 2024 case, as well as the district courts, up as recently as to April of this year, demonstrate that the clearly delineated standard is nowhere near as exacting or the same as the clearly established doctrine.

[00:19:50] Speaker 01:
And that is clear because in Cornell, the court in Cornell, if they wanted to make them even remotely the same, Cornell could have used the same words, clearly established, and applied that to the Bain Act. It didn't. It used the words clearly delineated, and the two words mean different things.

[00:20:05] Speaker 04:
In your view, delineated is different from established?

[00:20:09] Speaker 01:
Absolutely, Your Honor. Clearly established, we now know, courts have interpreted that to mean that there has to be some case with similar circumstances that would put an officer, a reasonable officer, on notice that they were committing a constitutional violation. Clearly delineated is... is a much more lower standard of just the court being able to articulate a right. And in Cornell, for example, even though, excuse me, yes, in Cornell, the court in one sentence, without much thought, said that the right to be free from false arrest is clearly delineated.

[00:20:45] Speaker 01:
In Reese, the Ninth Circuit Court case immediately following Cornell, in that case, the court said, granted and affirmed the denial of qualified immunity in favor of the defendants, but reversed on the Bain Act. That's indicative that it assumed, at the very least, that the right to be free from excessive force is clearly delineated.

[00:21:07] Speaker 01:
In Murchison, a 2021st Court of Appeal state case, in one sentence again, the court there, the California Court of Appeal, found that the right to be free from excessive force is clearly delineated. In...

[00:21:24] Speaker 01:
And that's how the district courts have been applying the different standards. Judge Tomlin, the point you raised with my friend during his oral argument, it's right on point. There are two different standards, and you have to think back to the lineage of the standards. The clearly delineated comes from criminal law, clearly established civil law.

[00:21:43] Speaker 03:
And we're talking here about the right to be free from unreasonable seizure, right? Yes. Yes. An excessive force. Well, but it's the right to be free from unreasonable seizure, right? That's the constitutional right, right? Yes. And that in circumstances here, based on interpretations from the U.S. Supreme Court, that the right to be free of unreasonable seizure includes firing a can include firing a projectile.

[00:22:18] Speaker 03:
Our court and the Supreme Court, that seizure can include firing a projectile and hitting someone.

[00:22:25] Speaker 01:
Yes. The Supreme Court in Graham v. Conner identifies the clearly delineated right under the seizure, and it says in a quote, all claims of law enforcement officers have used excessive force, deadly or not, in the course of an arrest, investigatory stop, or other seizure, of a free citizen should be analyzed under the Fourth Amendment.

[00:22:48] Speaker 03:
But the reason why this case qualifies as seizure is because the courts have said that firing a projectile at someone counts under the Fourth Amendment as a seizure.

[00:23:00] Speaker 01:
Correct.

[00:23:01] Speaker 01:
And so going back to my point regarding the standards, the risk here, if this court is in any way inclined to require the same level of specificity to the clearly delineated standard as is required under the clearly established qualified immunity standard, there is a real risk that criminal defendants would then be able to say, wait a minute, clearly delineated means clearly established. And therefore, unless you have a case that's on all fours and similar circumstances, I was not put on notice and I should not be held criminally liable.

[00:23:38] Speaker 01:
That is the difference. That is the importance of why the two standards are so different.

[00:23:43] Speaker 03:
And it might well be that if we certified the question to the California Supreme Court for the exact reason you've given, they might well say that. Yes. But they haven't up to now, right? Correct. The Court of Appeal has said what it said. We've said what we've said. But the California Supreme Court has never spoken on this.

[00:24:02] Speaker 01:
That is correct, Your Honor. And my point is only to say before this court, requires anything more than the low standard that is currently applicable under clearly delineated, it should certify to the California Supreme Court.

[00:24:20] Speaker 02:
What do you think the California Supreme Court might do? One of our duties is to try and predict what the California Supreme Court would do.

[00:24:28] Speaker 01:
That's correct, Your Honor. I believe the California Supreme Court, let me rephrase. The Cornell case was petitioned for review. And I endeavored to identify the briefs and figure out if that particular issue of what clearly delineated means was part of the issues presented to the California Supreme Court. I was unable to locate those briefs, but the point here is the California Supreme Court denied review. And so either A, the issues were presented to the California Supreme Court and the California Supreme Court thought it was unnecessary to weigh in on that, or B, they were presented excuse me, or B, the parties at issue didn't think it was necessary to present those issues to the California Supreme Court.

[00:25:10] Speaker 01:
The point is the standards are vastly different. And under the Bain Act, as long as the court can articulate a right, the right to be free from seizure, the right to be free from unlawful arrest, that is all that is necessary under the Bain Act.

[00:25:30] Speaker 02:
What findings...

[00:25:33] Speaker 02:
There were no specific findings submitted to the jury, right?

[00:25:36] Speaker 01:
That's correct, Your Honor.

[00:25:38] Speaker 02:
And nobody challenges the jury instruction. So if you look at the way the evidence was presented in the jury's award, did they find the specific intent that's necessary for the Bain Act?

[00:25:51] Speaker 01:
Yes, because it is clearly established.

[00:25:54] Speaker 01:
I have to be careful of using that phrase. It is well settled law, Your Honor, that under the Bain Act, reckless disregard is enough to meet the specific intent requirement. And the jury here found that Officer Agar shot indiscriminately into the crowd. He lacked that there was no concern on his behalf on who would be the object of his firing. And the court found that it was reckless. And on that basis, that was how the case was presented to the jury.

[00:26:24] Speaker 03:
So, counsel, I'm going to ask a question that I had hoped to avoid asking.

[00:26:31] Speaker 03:
And maybe I still should avoid asking it, but I'm going to ask it anyway.

[00:26:36] Speaker 03:
No one has raised this issue in the briefs.

[00:26:41] Speaker 03:
And that may mean the party presentation rule would clearly stop us from doing anything about it. But. The jury instructions in this case, as opposed to the jury verdict form, the jury was never instructed on the Fourth Amendment component of the Bain Act.

[00:27:04] Speaker 03:
Jury instruction number 35 only instructed the jury on the Bain Act as to the free speech violation which the court later threw out. The verdict form talked about the Fourth Amendment and free speech, but the actual jury instruction, which is not part of the record on appeal, but which we obtained, has no instruction to the jury at all on the Bain Act and the Fourth Amendment.

[00:27:35] Speaker 03:
Do you have any idea of how that happened?

[00:27:42] Speaker 01:
I want to make sure I understand Your Honor's question. Are you asking me how the jury came to its conclusion?

[00:27:47] Speaker 03:
No, I'm asking why the jury in a case where the Bain Act Fourth Amendment and Bain Act First Amendment issues were before the jury, although the judge threw out one of them. Correct. That the actual jury instruction on the Bain Act, jury instruction number 35, only instructed the jury as to the Bain Act vis-a-vis the First Amendment. and there was no instruction to the jury ever on the Bain Act Fourth Amendment. I've looked at both the transcript of the instructions read to the jury as well as the actual instruction.

[00:28:22] Speaker 03:
And if this is just something you're not familiar with, you can just say that and I'll move on.

[00:28:28] Speaker 01:
I apologize. I'm not familiar with that. What I will say is the jury's verdict, as well as all reasonable inferences in support of that verdict, need to be taken into account in analyzing this case on appeal, including the legal analysis that goes under the qualified immunity and the Bain Act question.

[00:28:47] Speaker 04:
But if the jury was never instructed on the relationship between the Fourth Amendment and the Bain Act, what are we deferring to?

[00:29:01] Speaker 01:
We are deferring to their overall findings of Officer Agar's Actions on the date in question.

[00:29:08] Speaker 04:
Theory was that he fired recklessly into the crowd as opposed to targeting a specific thrower. Correct. So if it was tried on a recklessness theory, but the Bain Act looks to the criminal standard of specific intent, don't we have a problem if the jury was never told that?

[00:29:33] Speaker 01:
But the jury was able to deduct from the evidence. that Officer Agar did lack that specificity of targeting a specific individual. They heard his testimony and they discredited him, given all the evidence, and found that he did not – that that was not true.

[00:29:52] Speaker 04:
And found that he shot recklessly into the crowd.

[00:29:55] Speaker 01:
Correct.

[00:29:55] Speaker 04:
But if you're correct that the Bain Act incorporates specific intent – under the criminal civil rights provisions in Title 18, we got a problem.

[00:30:10] Speaker 01:
Well, cases analyzing the Bain Act, including Cornell, explicitly say that the specific intent requirement can be established through reckless disregard. And so the jury found that officer... And Cornell says that? Correct.

[00:30:27] Speaker 01:
And the jury found that Officer Agar's conduct in question, on the date in question, was reckless. Where? It's the reasonable inference from all the evidence.

[00:30:40] Speaker 03:
Because... No, but where did the jury find that? I mean, the jury found as to question 18 that...

[00:30:52] Speaker 03:
Kyle Johnson proved by preponderance that James Adgar committed acts of violence to prevent Kyle Johnson from exercising his right to be free from unreasonable seizure. And they also found in question 17, Kyle Johnson proved by preponderance of the evidence that James Adgar acted violently against Kyle Johnson. But I don't see that they ever made a finding about the intent with which he acted.

[00:31:24] Speaker 03:
And through some sort of mistake, the jury was never instructed as far as I can tell on the Fourth Amendment part of the Bain Act. And just so you know, what I'm looking at are jury instruction 35 and the transcript of January 15th, 2025 at page 1367. There is no explicit interrogatory that was

[00:31:50] Speaker 01:
part of the jury's verdict that identifies that for us, Your Honor. But this court, as was identified in the case of Morales v. Frye, and again in Reese, it is well settled that this court must take the jury's factual findings and all reasonable inferences to support the jury's finding.

[00:32:09] Speaker 02:
Let me put that just a little bit different because the jury didn't make specific findings. That is to say, the jury was not instructed To answer specific questions. Correct. Factual questions. Correct. Okay. The jury was given a special verdict, right? Yes. That asked them to go through a series of broad statements of findings on elements of the various claims. Correct. Right? Okay. Based on my understanding from when I was a district judge, when we used a special verdict, once the verdict comes back, the court determines whether whether as a matter of law on the basis of that verdict, what relief, what the judgment should look like based on this.

[00:32:58] Speaker 02:
And as I understand from this special verdict or the verdict form and the way it's laid out, is with the questions that Judge Bennett just referred to, 17 and 18, it seems to me like if you were the trial judge and you got a verdict like this and you're looking at the Bain Act, where it says, did Kyle Johnson prove by a preponderance of the evidence that James Adgar acted violently? Well, that certainly implies intent.

[00:33:29] Speaker 01:
That's correct, Your Honor.

[00:33:29] Speaker 02:
And that's the basis on which the district court entered its verdict, its judgment on the Bain Act.

[00:33:38] Speaker 01:
That's correct, Your Honor.

[00:33:40] Speaker 03:
Although there actually is no judgment on the Bain Act. The only judgment says it is hereby ordered and to judge the judgment in the amount of 1,000,003, et cetera, is entered.

[00:33:51] Speaker 01:
My understanding is that the district court judgment incorporated the verdict.

[00:33:55] Speaker 02:
The judgment itself is based upon the jury's verdict. Correct. All of the findings from the jury's verdict.

[00:34:03] Speaker 03:
But the verdict, the judgment, doesn't differentiate count by count. That may not matter, but it doesn't do it.

[00:34:10] Speaker 01:
Not explicitly. I see that I'm almost out of time, but I may make one final point, Your Honors, on the qualified immunity.

[00:34:17] Speaker 01:
And it's Related to what I've been saying is the Puente and the Cheris cases, which my friend relies on, those are post-incident.

[00:34:27] Speaker 01:
Just as a plaintiff cannot take the benefit of a decision that's after the incident to say that a right has been clearly established, the rule applies the other way as well. An officer defendant cannot point to a case after the incident to say that the right was not clearly established.

[00:34:45] Speaker 01:
Unless Your Honor has any other questions, I submit, Your Honor.

[00:34:50] Speaker 01:
Thank you.

[00:35:03] Speaker 00:
Just a couple of brief points in response, Your Honor.

[00:35:06] Speaker 00:
First, my friend on the other side says that clearly delineated is on its face clearly much broader than clearly established. But I think that's that's exactly what the United States v. Lanier Court said is not the case. And it's not how it has been applied in federal criminal cases.

[00:35:32] Speaker 00:
And in fact, in United States v. Lanier, the issue was not whether it might be a lower standard. The issue before the Supreme Court was that the Sixth Circuit had actually applied a higher standard for the clearly delineated and plainly applicable prong. And the United States Supreme Court said that that was error, and they've been explaining why it compared it to qualified immunity, explaining that the purpose of both was to ensure fair notice to the defendant.

[00:36:00] Speaker 00:
I think it's also important to note that it's really not a matter of interpreting the words clearly delineated or plainly applicable. What Cornell adopted was the screws standard, and it said that explicitly. And in fact, to the best of my memory, and I could be wrong, I don't think the words clearly delineated appear in the opinion itself. It's very clear that it is adopting the federal standard. And that federal standard has made clearly delineated and plainly applicable an objective standard that is essentially equivalent to qualified immunity.

[00:36:37] Speaker 00:
It is the criminal version of that. And so I think that addresses the first prong. And the issue about the failure of a jury instruction on the Fourth Amendment, that addresses the second prong, not the first prong. And it would mean that the jury was not instructed on how to determine whether Officer Edgar had the necessary intent to violate Mr. Johnson's Fourth Amendment right. And therefore, there is nothing to defer to the jury on in that specific sense.

[00:37:12] Speaker 03:
All right. Thank you. We thank counsel for their arguments. The case just argued is submitted. And with that, we are adjourned for the day and for this panel for the week. Thank you.