[00:00:06] Speaker 03:
There you are.

[00:00:08] Speaker 03:
Good morning, Ms.

[00:00:08] Speaker 03:
Lund.

[00:00:11] Speaker 02:
Good morning.

[00:00:12] Speaker 02:
Can you hear me, Your Honors?

[00:00:13] Speaker 03:
We sure can.

[00:00:14] Speaker 03:
And Judge Graber, are you able to hear?

[00:00:16] Speaker 04:
Yes, I hear fine.

[00:00:18] Speaker 04:
Thank you.

[00:00:18] Speaker 03:
Okay.

[00:00:21] Speaker 03:
We'll begin with counsel for appellant.

[00:00:23] Speaker 03:
Good morning.

[00:00:24] Speaker 02:
Good morning, Your Honors.

[00:00:26] Speaker 02:
May it please the court, Susanna Lund for plaintiff appellant Eric Lund.

[00:00:31] Speaker 02:
I plan to reserve two minutes for rebuttal and will watch my clock.

[00:00:36] Speaker 02:
The briefing in this matter is dense.

[00:00:39] Speaker 02:
So unless the court would like to focus elsewhere, I intend to address the following three points this morning.

[00:00:46] Speaker 02:
One, the sua sponte procedural error that requires reversal of summary judgment on the unreasonable seizure claims.

[00:00:54] Speaker 02:
Two, the substantive justification for the seizure that rested entirely on what the forensic science community would call junk science and what this court's precedents would call evidence lacking any indicia of reliability.

[00:01:10] Speaker 02:
And three, the fact that deference must have a source, either legislative or judicial.

[00:01:18] Speaker 02:
And when a defendant cannot point to an applicable source,

[00:01:22] Speaker 02:
The default constitutional standard must apply.

[00:01:26] Speaker 02:
So point 1, the district court's most consequential error was it's to respond to grant of summary judgment.

[00:01:33] Speaker 02:
To defendants on the unreasonable seizure claims.

[00:01:36] Speaker 02:
The court's analysis began correctly.

[00:01:38] Speaker 02:
It found that the circumstances of Mr. Lund's 66-day segregation and solitary confinement presented an atypical and significant hardship that triggered his Fourth Amendment rights under Resnick v. Hayes.

[00:01:53] Speaker 02:
But then, after correctly opening the constitutional door, the court granted summary judgment to the defendants on a ground that they never even raised in their motion, that the seizure was reasonable as a matter of law.

[00:02:07] Speaker 04:
Well, Council, were the facts disputed concerning what happened?

[00:02:13] Speaker 04:
Yes.

[00:02:14] Speaker 04:
In what relevant respect that pertains to the reasonableness of dealing with a person suspected of having drugs in the prison?

[00:02:31] Speaker 02:
So, specifically the timeline of events.

[00:02:36] Speaker 02:
So, as to the... So, the Sue Sponte decision came on the Fourth Amendment claim.

[00:02:44] Speaker 02:
So, defendants only raised the argument that convicted prisoners do not have Fourth Amendment right to be free from bodily seizure at all as a matter of law and then qualified immunity.

[00:02:58] Speaker 02:
They did not dispute the facts.

[00:03:01] Speaker 04:
Well, that's my point, I guess.

[00:03:03] Speaker 04:
If there are undisputed facts,

[00:03:06] Speaker 04:
that make the actions reasonable, why is the district court precluded from making that conclusion if you don't dispute the facts?

[00:03:20] Speaker 02:
So I think it's actually in reverse, Your Honor.

[00:03:25] Speaker 02:
They did not dispute plaintiff's facts that show unreasonableness as a matter of law.

[00:03:33] Speaker 04:
Well, your conclusion of unreasonableness rests on facts.

[00:03:40] Speaker 04:
I'm talking about what happened.

[00:03:41] Speaker 04:
There was an envelope.

[00:03:43] Speaker 04:
It had a stain.

[00:03:45] Speaker 04:
Those sorts of facts.

[00:03:47] Speaker 04:
I don't see that those are disputed.

[00:03:50] Speaker 02:
So, the entire timeline is disputed.

[00:03:53] Speaker 02:
This supposed April 28 starting point, when an unidentified mailroom employee flagged a letter, is untested hearsay.

[00:04:04] Speaker 02:
There's no contemporaneous log or witness, anything that can be cross-examined.

[00:04:10] Speaker 02:
It's, in practical terms, it's a ghost story.

[00:04:12] Speaker 02:
And it was error to treat that as the linchpin of the timeline.

[00:04:16] Speaker 02:
By contrast, the first

[00:04:19] Speaker 02:
event for which there is admissible evidence.

[00:04:22] Speaker 02:
So, looking at her Officer Murphy's declaration, the first event where she has personal knowledge of stating when she did something, so her declaration at 8ER-2124 is May 4th when she seized Mr. Len's legal mail.

[00:04:41] Speaker 02:
during which time he told her that she was taking his legal mail.

[00:04:44] Speaker 02:
She chose to proceed anyway.

[00:04:46] Speaker 02:
And only after that May 4 verbal notice and after his grievance on May 10 and after his attorney's internal affairs complaint on the 19th did Murphy write her rules violation report on May 28,

[00:05:01] Speaker 02:
introducing the April 28 timeline for the first time and that post hoc RVR narrative is impossible to swear with the documentary evidence.

[00:05:12] Speaker 02:
The RVR claims that she weighed and photographed

[00:05:17] Speaker 02:
the greeting card before she nip-tested it, and then she signed, sealed, and booked that card into evidence, and that all of these things happened before she entered Mr. Lund's dorm on May 4th and took his legal mail.

[00:05:33] Speaker 00:
Ms.

[00:05:33] Speaker 00:
Lund, I guess the, so are you disputing in the Murphy declaration as well as in the report that the test took place on April 28th or before the search?

[00:05:51] Speaker 02:
Yes, because the photographs that Officer Murphy personally admits that she personally took are dated May 20th.

[00:06:02] Speaker 00:
Well, but that doesn't necessarily tell us.

[00:06:04] Speaker 00:
I mean, so I think Officer Murphy's declaration, it's admissible.

[00:06:11] Speaker 00:
I'm not sure that it would be admissible at trial that she testified.

[00:06:15] Speaker 00:
There's no need for corroboration, right?

[00:06:19] Speaker 00:
I think the

[00:06:20] Speaker 00:
The non-movement's burden here is to establish some competing fact rather than conjecture about this.

[00:06:29] Speaker 00:
I mean, is there any other fact we should look for that suggests that the search was motivated by anything else?

[00:06:38] Speaker 00:
I don't think it's disputed that Officer Murphy did not know Mr. Lund prior to this discussion.

[00:06:47] Speaker 00:
What else could have precipitated the search other than the test?

[00:06:53] Speaker 02:
Well, first, to begin with, Your Honor, the fact that there is this dispute of timeline is precisely the credibility.

[00:07:03] Speaker 00:
Well, what dispute of timeline, I guess we're asking?

[00:07:06] Speaker 00:
Where are the facts on the other side that would manufacture a genuine dispute of those material facts?

[00:07:12] Speaker 02:
Okay.

[00:07:13] Speaker 02:
So the photographs that she says she took before May 4th,

[00:07:17] Speaker 02:
are actually dated May 20th.

[00:07:19] Speaker 02:
The booking that she said occurred before May 4th, all states that the envelopes are dated by her on May 21st.

[00:07:27] Speaker 02:
So the 20th and 21st are dates that immediately precede this cascade of protected conduct that Mr. Lund engaged in.

[00:07:37] Speaker 03:
So what is your theory that she just indiscriminately searched his bunk for no reason?

[00:07:44] Speaker 02:
It is a completely plausible theory because it happens every day in prisons and legal mail was taken from that bunk for whatever reason.

[00:07:55] Speaker 02:
It is entirely possible that the jury could completely agree that it was taken for the purpose of

[00:08:02] Speaker 02:
a drug investigation.

[00:08:03] Speaker 02:
They could also find that it was for some other purpose.

[00:08:06] Speaker 02:
They don't need to find it was for some other purpose, however, because the escalation of the adverse action only happened after the protected conduct ensued.

[00:08:19] Speaker 00:
What's the response that essentially the officers had?

[00:08:24] Speaker 00:
No discretion under prison policy.

[00:08:27] Speaker 00:
Once they'd had a positive test,

[00:08:31] Speaker 00:
and it had met, and there was a history, I understand that it was Mr. Lund's mother, but there was a history of it, that it met the elements of the policy, that there's no room for them to retaliate or to act unreasonably because that's what they had to do.

[00:08:48] Speaker 02:
Okay, so first to the premise that there was a positive on the test is disputed, and we can address that later if you would like.

[00:08:56] Speaker 02:
But as to the evidentiary issues,

[00:08:59] Speaker 02:
Mr. Lund made specific rule 56C to objections to the competence of both the memorandum

[00:09:07] Speaker 02:
and the party, the three witness declarations about quote unquote CDCR policy, arguing that the evidence was hearsay, lack foundation authentication was irrelevant to the facts of the case.

[00:09:20] Speaker 02:
And even if truly given force and effect by the agency, amounted to unlawful underground regulations under California law.

[00:09:30] Speaker 02:
Rule 56 only allows a court to consider material that can be presented in admissible form at trial.

[00:09:38] Speaker 02:
And once Mr. Lund objected under 56C2, the burden shifted to the defendants to show the admissibility or explain the admissible form that they anticipated.

[00:09:48] Speaker 02:
They never did so.

[00:09:49] Speaker 02:
And without ruling on those objections, the court relied squarely on this disputed

[00:09:57] Speaker 02:
evidence about policy to find the seizure reasonable as a matter of law.

[00:10:03] Speaker 02:
That was error that was not harmless because one, the objections are meritorious.

[00:10:09] Speaker 02:
They should have been sustained.

[00:10:10] Speaker 02:
And once that inadmissible policy is stripped out of the record, there is at least a genuine dispute of fact on whether the seizure was reasonable.

[00:10:22] Speaker 03:
But in terms of why it might not be, I understood your brief to be focused on this theory of

[00:10:27] Speaker 03:
A deliberate fabrication.

[00:10:29] Speaker 03:
Is that your theory?

[00:10:30] Speaker 02:
That was a theory.

[00:10:33] Speaker 02:
So when there are cross motions for summary judgment, each motions must stand on its own.

[00:10:38] Speaker 02:
We marshaled one theory.

[00:10:41] Speaker 02:
that we thought could get us over the line of summary judgment as a matter of law and preserved a significant amount of evidence that could dispute reasonableness, but they never raised it in their brief.

[00:10:58] Speaker 02:
So we strategically preserved that for trial.

[00:11:01] Speaker 02:
We had no obligation to preemptively rebut a theory they never raised.

[00:11:08] Speaker 02:
So we asserted one theory

[00:11:11] Speaker 02:
of deliberate fabrication that did not require us to throw all of our cards out on the table of an unreasonableness when that issue wasn't even just in dispute by the opposing party.

[00:11:23] Speaker 03:
So what is your best theory on why this was unreasonable?

[00:11:27] Speaker 02:
As a matter of law?

[00:11:29] Speaker 03:
As a matter of law or fact?

[00:11:32] Speaker 02:
As a matter of law, the best theory is deliberate fabrication.

[00:11:40] Speaker 02:
Reporting a presumptive, excuse me, the NIC Test K by its instructions that Officer Murphy admits that she was trained on, that were hanging in her office at the time, expressly require that

[00:11:58] Speaker 02:
A Nick Teske, if morphine is known to be present, would present as a biphasic reaction.

[00:12:06] Speaker 02:
First, we would see a blue-green color reaction that then shifts to a gray color reaction.

[00:12:13] Speaker 02:
And Officer Murphy testified that she saw one color, not two, and it was dark purple, not blue-green or gray.

[00:12:21] Speaker 02:
And under this court's holding in Spencer v. Peters,

[00:12:28] Speaker 02:
Misrepresenting the underlying evidence to report a false result that then results in a deprivation of liberty for somebody is direct evidence of deliberate fabrication.

[00:12:41] Speaker 00:
But I guess the deliberate seems to be the question there.

[00:12:46] Speaker 00:
I mean, I think Officer Murphy testified as to what she saw at the time.

[00:12:53] Speaker 00:
The dispute may be about whether that was enough or whether it was misinterpreted, but

[00:12:58] Speaker 00:
How is that enough to show that, particularly where it seems like Officer Murphy is standing by her story, that that was the color that it turned?

[00:13:08] Speaker 00:
Now, you may say she misread it, but that's not the same as deliberate fabrication.

[00:13:13] Speaker 02:
So, well, so that was the position that the district court took in stating that gray was close enough to dark purple to kind of

[00:13:23] Speaker 02:
not infer misconduct there, a deliberate fabrication.

[00:13:27] Speaker 02:
But the critical element is that

[00:13:31] Speaker 02:
Unlike several other of the NIC tests, which only require a single color change, the NIC test K, and this is at 6ER1492, shows that the NIC test K for morphine is unique.

[00:13:48] Speaker 02:
It requires a color shift.

[00:13:51] Speaker 04:
You have to have color.

[00:13:51] Speaker 04:
Council, I have a question about that.

[00:13:54] Speaker 04:
In the Baca deposition, this is, I think it's,

[00:14:00] Speaker 04:
No, maybe it's trying to remember if it's Miller or Baca that talks about blue-green color changing to gray indicates morphine.

[00:14:13] Speaker 04:
But then the Baca deposition says, where color screens are only presumptive, not confirmatory, there are several substances that could give a potential screening, say purple,

[00:14:27] Speaker 04:
And it doesn't necessarily mean there's a controlled substance.

[00:14:32] Speaker 04:
So doesn't that suggest that corroborating that purple, even if that's what was seen, could indicate a controlled substance?

[00:14:43] Speaker 02:
Your Honor, the senior criminalist at the DOJ, Alison Baca, was not referring to any particular reagent when she was making that testimony.

[00:14:53] Speaker 02:
She definitely was not referring to the Nick Test K. And each reagent in these ampules of the product

[00:15:00] Speaker 02:
react in different ways with the molecular structure of the component that's being or the components on the molecular structure that is being tested.

[00:15:09] Speaker 02:
And so Allison Baca also testified that she absolutely would not ever use chlorometric chemistry to identify a substance and that it's only useful in the laboratory setting for helping a chemist determine how to most efficiently extract a substance

[00:15:27] Speaker 02:
for the proper testing, the GCMS gas chromatograph mass spectrometry, which is what can identify.

[00:15:38] Speaker 04:
So the purple is- So is it your view that there's no sort of on the spot testing that would ever be reasonable to allow the prison to deal with an individual who's

[00:15:57] Speaker 04:
believed potentially to have drugs?

[00:16:00] Speaker 02:
As to these field chemical drug tests on their own, no, they are not.

[00:16:08] Speaker 02:
They are unreliable.

[00:16:09] Speaker 02:
As the amicus brief details and as the safari land testimony and Allison Baca testimony confirm in the record, these are not reliable.

[00:16:19] Speaker 02:
They were not, the limitations of the chemistry

[00:16:24] Speaker 02:
is that it is impossible to identify a substance.

[00:16:27] Speaker 02:
They can merely classify and they can be triggered by flour and coffee sweetener and cheese and chili powder and all these other innocuous household substances.

[00:16:38] Speaker 02:
The limitations of the chemistry make them lack an indicia of reliability, sufficient to take some sort of serious sanction against a prisoner.

[00:16:49] Speaker 02:
Now to your question about is there anything on the spot,

[00:16:52] Speaker 02:
Certainly there is, it's not in the record.

[00:16:55] Speaker 02:
It's referred to in the MICAS brief.

[00:16:58] Speaker 02:
There are other portable devices that are much more accurate.

[00:17:05] Speaker 02:
Mass spectrometry.

[00:17:09] Speaker 03:
We let you go a little over your time.

[00:17:12] Speaker 03:
We'll give you time for a bottle.

[00:17:13] Speaker 03:
I had one more question before we hear from your opposing counsel, which is, what is the relief that you believe you're entitled to in this case?

[00:17:22] Speaker 03:
What are you seeking?

[00:17:24] Speaker 02:
At a very minimum, reversal of all grants of summary judgment to both defendants and... I understand that, but ultimately, what do you believe, what are you seeking in this case?

[00:17:35] Speaker 02:
Ultimately, plaintiff's motion for partial summary judgment against Murphy on the retaliation claim and both unreasonable seizure claims should be granted.

[00:17:46] Speaker 02:
The trial should be remanded for trial against Murphy on Rhodes Factor II liability.

[00:17:53] Speaker 03:
What are you asking for, money or some other kind of relief?

[00:17:56] Speaker 03:
What do you believe you're entitled to for this situation?

[00:18:02] Speaker 03:
Damages.

[00:18:03] Speaker 02:
And Your Honor, there is the Bain Act claim that does allow for creative crafting of injunctive relief that the court may deem warranted to stem injustices.

[00:18:21] Speaker 03:
Is your client still incarcerated?

[00:18:23] Speaker 02:
He is not.

[00:18:24] Speaker 03:
Okay, thank you.

[00:18:25] Speaker 03:
We'll put two minutes on the clock for rebuttal since we've let you go a little over here, but let's hear from the state.

[00:18:41] Speaker 01:
Good morning, and may it please the court, Haley Amster for Appellees.

[00:18:45] Speaker 01:
We've heard some discussion this morning about conflicting dates and timelines, but as the district court correctly explained, Officer Murphy's investigation into Mr. Lund began well before he ever filed a grievance.

[00:18:55] Speaker 01:
Officer Murphy didn't know Mr. Lund, and she had never met him before.

[00:18:59] Speaker 01:
And after a full opportunity for discovery, Mr. Lund was unable at summary judgment to show any evidence of fabrication or retaliation.

[00:19:07] Speaker 01:
Mr. Lund's other claims fail as a legal matter.

[00:19:10] Speaker 01:
His transfer from dorm housing to administrative segregation was not a seizure for Fourth Amendment purposes.

[00:19:16] Speaker 01:
And on Mr. Lund's challenge to the jury instructions, the district court correctly stated the law.

[00:19:21] Speaker 03:
So let's just go back to the first point.

[00:19:22] Speaker 03:
So opposing counsel referenced some of the late May dates on some of the documents.

[00:19:28] Speaker 03:
So what's your response to that?

[00:19:30] Speaker 01:
So on that point, I would recommend that the court look at Officer Murphy's deposition testimony on that point, which is at volume five of the excerpts of record at page 1188.

[00:19:39] Speaker 01:
So when Officer Murphy was asked about these dates and her deposition, she explained that the dates on the placards and those photographs correspond to the dates that she was completing her report in this case.

[00:19:50] Speaker 01:
But as she went on to explain, she took other photographs over the course of this investigation, including of Mr. Lundsbunk and the N.I.K.

[00:19:57] Speaker 01:
test that she performed in this case, but that they didn't make it onto the final report in the case.

[00:20:03] Speaker 03:
Are those in the record?

[00:20:04] Speaker 01:
They're not, Your Honor.

[00:20:05] Speaker 01:
But I'll also note that Officer Davis

[00:20:08] Speaker 01:
Officer Murphy's supervisor was also asked about this in his deposition and he explained that it's perfectly normal for officers to take anywhere from 50, 60 photos over the course of an investigation, but they whittled down that number to just a handful that get attached to the final report.

[00:20:24] Speaker 03:
Your opposing counsel also focused on just the manner of the proceedings in the district court in terms of what your client, how, you know, the basis that your client moved for summary judgment on

[00:20:34] Speaker 03:
the seizure claim and then the ground on which you ended up prevailing.

[00:20:38] Speaker 03:
And do you want to address this this issue?

[00:20:41] Speaker 01:
Sure, Your Honor.

[00:20:42] Speaker 01:
So on that claim, which I understand to be about the Fourth Amendment claim in particular, the parties cross moved on that claim.

[00:20:50] Speaker 01:
And my understanding is that Mr. Lund's motion put reasonableness at issue.

[00:20:54] Speaker 01:
And so it wasn't improper for the district court to decide reasonableness at summary judgment.

[00:21:01] Speaker 04:
I'd like to ask you to focus on reasonableness and explain why, in your view, everything that happened was reasonable.

[00:21:09] Speaker 04:
And I want you to assume, for the purpose of this question, that Resnick permits a Fourth Amendment claim in certain circumstances.

[00:21:20] Speaker 01:
Certainly, Your Honor.

[00:21:21] Speaker 01:
So, of course, our position in this case is that there was no seizure for Fourth Amendment purposes, but addressing just the reasonableness.

[00:21:28] Speaker 01:
Mr. Lund's argument, primary argument on this point was that there was evidence of fabrication or retaliation.

[00:21:36] Speaker 01:
On that point, I would again recommend that the court read the relevant two pages of Officer Murphy's deposition testimony, which is at volume five of the excerpts of record at pages 1163 to 1164.

[00:21:50] Speaker 01:
And I think that if the court reads those pages directly, you'll see that it can't support any inference of fabrication or retaliation.

[00:21:58] Speaker 01:
I'm happy to walk through those two pages if it would be helpful.

[00:22:02] Speaker 01:
Sure.

[00:22:02] Speaker 01:
So Mr. Lund's argument is twofold.

[00:22:05] Speaker 01:
First, he's saying that there was that Officer Murphy's testimony was that there was no biphasic reaction in this case.

[00:22:12] Speaker 01:
And from that, I understand it to be that an N.I.K.

[00:22:15] Speaker 01:
test turns one color first and then it transitions into a second color.

[00:22:18] Speaker 01:
And that second color is the one that corresponds to a particular narcotic.

[00:22:22] Speaker 01:
But if you look at the question that she was asked, it was phrased in the singular.

[00:22:26] Speaker 01:
She was asked, what color change did you observe when you tested Mr. Lund's male?

[00:22:31] Speaker 01:
And in response to that, Officer Murphy says she saw the one for morphine.

[00:22:35] Speaker 01:
Now, she answered a question phrased in the singular, and she wasn't asked any clarifying questions about, is your testimony that you never saw a second color?

[00:22:44] Speaker 01:
You only ever saw one color pop up on this test.

[00:22:46] Speaker 01:
So I don't think that that can be fairly read to say that there was no biphasic reaction ever seen.

[00:22:51] Speaker 01:
The second part of Mr. Lund's argument has to do with this dark gray versus purple issue.

[00:22:57] Speaker 01:
And on that, Officer Murphy was asked what color she meant when she said the one for morphine.

[00:23:03] Speaker 01:
And she said she couldn't recall off the top of her head.

[00:23:05] Speaker 01:
So she asked to reference the chart that comes with the NIK test and addressing in particular one question that Judge Johnstone asked earlier.

[00:23:12] Speaker 01:
I want to clarify that her testimony on this was that she was looking at that chart in her deposition and explaining what she meant, like that color was for morphine, looking at that chart in her deposition.

[00:23:25] Speaker 01:
She wasn't saying,

[00:23:26] Speaker 01:
What she recalled at the time when she did the test, she said she couldn't recall what color corresponded to morphine.

[00:23:32] Speaker 01:
So I read that testimony to say that she was sitting in her deposition at that present moment describing what she saw on the chart as corresponding to morphine.

[00:23:41] Speaker 01:
She described that as dark purple.

[00:23:43] Speaker 01:
Even if Mr. Lund disagrees and he would personally describe that color on the chart as gray,

[00:23:50] Speaker 01:
I don't think that that supports any evidence that she fabricated the test in this case.

[00:23:55] Speaker 03:
How about just the general reliability of this test for detecting morphine?

[00:24:00] Speaker 01:
I think that the reliability of the NIK test has limited relevance, if any, to this claim.

[00:24:05] Speaker 01:
The record here shows that there was a false positive this one time.

[00:24:09] Speaker 01:
We don't have a broader view into the reliability of NIK testing in general.

[00:24:13] Speaker 01:
And instead, we have an officer that was trained to use this particular test.

[00:24:17] Speaker 01:
It wasn't in her discretion to send this to a chemist for testing in the first instance.

[00:24:21] Speaker 01:
It also wasn't in her discretion to drop the investigation entirely.

[00:24:24] Speaker 01:
So as to the reasonableness of this officer's conduct,

[00:24:29] Speaker 01:
any objectively reasonable officer under these circumstances would have followed their training and used this test.

[00:24:39] Speaker 04:
I wanted to follow up on the issue of the general reliability of the test.

[00:24:47] Speaker 04:
If the procedure, and this will be a far-fetched example, but if the procedure called for the officer to sniff the envelope and if it smelled funny, that would trigger certain required actions.

[00:25:03] Speaker 04:
What is the threshold?

[00:25:04] Speaker 04:
How do we know and can we take judicial notice

[00:25:08] Speaker 04:
the reliability or unreliability of the method that was chosen.

[00:25:14] Speaker 01:
On that, Mr. Lund ultimately bore the burden of proof on his claim, which is that he was seized for purposes of the Fourth Amendment and that seizure was unreasonable.

[00:25:24] Speaker 01:
I don't think that he has put evidence in the record that would allow us to infer that N.I.K.

[00:25:29] Speaker 01:
tests as a whole are so unreliable that it would be unreasonable for this particular officer to rely on it such that

[00:25:37] Speaker 01:
her use of this test would constitute an individual constitutional violation that she would be responsible for damages.

[00:25:43] Speaker 04:
So half of my question though had to do with judicial notice.

[00:25:47] Speaker 04:
Is that an appropriate thing for us to nose into to figure out if this is so wildly unreliable that nobody could possibly pay attention to it?

[00:26:00] Speaker 01:
I respectfully disagree, Your Honor, that the court should take judicial notice of any facts about the reliability of the N.I.K.

[00:26:05] Speaker 01:
test because I don't think that it's relevant to this officer's conduct.

[00:26:10] Speaker 01:
The question here on reasonableness is what an objectively reasonable officer would do under these circumstances.

[00:26:16] Speaker 01:
And I don't think that an objectively reasonable officer who is trained to use this particular test would have been able to do anything else.

[00:26:23] Speaker 01:
She wouldn't have had the discretion to simply choose not to use this particular N.I.K.

[00:26:27] Speaker 01:
test.

[00:26:27] Speaker 01:
And so I don't think that it factors into this analysis.

[00:26:30] Speaker 00:
What do we do about the delay?

[00:26:32] Speaker 00:
It's not entirely clear that this is part of Mr. Lund's argument, but I do point out that once you get past the grievance and the conclusion of the investigation, the confirmatory test takes an awful long time, given that everyone understands that this is simply a preliminary test at best.

[00:26:56] Speaker 00:
And that whole time, he's in administrative segregation.

[00:27:02] Speaker 00:
So what are we to make of that with respect to it?

[00:27:06] Speaker 00:
Because, of course, that would happen after the grievance and everything else.

[00:27:08] Speaker 00:
That chain of causation is a little more likely if it's problematic.

[00:27:13] Speaker 00:
How do you explain it?

[00:27:14] Speaker 01:
I don't think that any delay between confirmatory testing and the initial test would render that the use of that initial test unreasonable.

[00:27:22] Speaker 01:
For example, it's very common for people to choose to use something like an at home rapid test instead of going into a doctor's office for a swab and waiting for confirmation on that.

[00:27:33] Speaker 01:
I don't think it would be unreasonable under these circumstances to use

[00:27:37] Speaker 01:
these cheaper, rapid versions of these tests.

[00:27:40] Speaker 00:
Right, but to wait quite so long before the confirmatory test, after imposing discipline, or set aside the discipline after relocating the prisoner?

[00:27:54] Speaker 01:
I respectfully disagree that there was any sort of unusual delay in this case.

[00:27:58] Speaker 01:
And I'll also note that the investigation in this case happened at the height of COVID in May, June of 2020, and all of the prisons were

[00:28:06] Speaker 01:
short-staffed and had additional duties beyond the ordinary scope of their duties.

[00:28:10] Speaker 01:
So it took additional time in this case to get some sort of lab confirmation from the chemist who tested this, but I wouldn't say that that delay is meaningful to this analysis in any way.

[00:28:23] Speaker 01:
If I could briefly address the jury instruction issue in this case.

[00:28:27] Speaker 01:
So turning to the jury instructions under any standard of review, Mr. Lund's challenge to the jury instructions fails.

[00:28:33] Speaker 01:
The district court didn't get the law wrong.

[00:28:36] Speaker 01:
A consideration of the legitimate, penological purposes or justifications is a necessary part of evaluating any inmate's constitutional claim.

[00:28:44] Speaker 01:
And the language that was put to the jury here, legitimate, penological purposes or justifications,

[00:28:49] Speaker 01:
is not meaningfully different from any other formulation that this court has affirmed, in particular, the legitimate correctional interest formulation that this court affirmed in Bell v. Williams.

[00:29:00] Speaker 01:
Including language along those lines is also not as a formal matter, the same thing as instructing the jury to apply Turner deference as a formal matter.

[00:29:07] Speaker 01:
And in addition, Mr. Lund hasn't met any burden to show that there would have been error, that would have been harmless in this case.

[00:29:18] Speaker 01:
If there aren't any further questions, I'll wrap up.

[00:29:23] Speaker 03:
It appears there's not.

[00:29:24] Speaker 03:
So do you have any concluding remarks?

[00:29:27] Speaker 01:
We ask the court to affirm the judgment below.

[00:29:28] Speaker 01:
Thank you.

[00:29:29] Speaker 03:
Thank you.

[00:29:33] Speaker 03:
And we'll now hear rebuttal.

[00:29:34] Speaker 03:
Ms.

[00:29:35] Speaker 03:
Lund.

[00:29:37] Speaker 02:
OK, a few quick points I'll just hit real quick.

[00:29:40] Speaker 02:
First of all, Resnick v. Hayes rejected the proposition that incarcerated prisoners have been stripped of their Fourth Amendment right to not have their bodies unreasonably seized.

[00:29:50] Speaker 02:
Second, Mr. Lund's motion put the issue of unreasonableness as a matter of law at issue, not the issue of reasonableness.

[00:29:59] Speaker 02:
The motions must be judged on their own merits.

[00:30:03] Speaker 02:
That's standard summary judgment law.

[00:30:05] Speaker 02:
Next, the Officer Murphy, when she was testifying in her deposition about the color, was not looking at the NIC chart.

[00:30:13] Speaker 02:
That is a misrepresentation.

[00:30:15] Speaker 02:
She was looking at something called Exhibit 4, which is not in the record.

[00:30:19] Speaker 02:
She was not looking at the chart.

[00:30:21] Speaker 02:
Next, as to this argument that the unreliability

[00:30:28] Speaker 02:
is that we need to look outside the record.

[00:30:30] Speaker 02:
That is not true.

[00:30:32] Speaker 02:
The record is clear that Officer Murphy knew the tests were unreliable.

[00:30:35] Speaker 02:
She testified during her deposition she had been trained that lab tests must be confirmed by a laboratory.

[00:30:41] Speaker 02:
Her coworker testified that ISU officers were not allowed to take enforcement action in the absence of a lab test.

[00:30:47] Speaker 02:
She made Rule 36 admissions about her own experience with false positives.

[00:30:51] Speaker 02:
She made admissions that she knew she was to perform the test in accordance with the manufacturer's instructions.

[00:30:57] Speaker 02:
And then we had Title 15 Regulation 3290F, which states that field tests alone cannot support serious sanctions.

[00:31:05] Speaker 02:
The totality of this evidence more than establishes that Officer Murphy knew that the chemical field tests are unreliable.

[00:31:12] Speaker 02:
As to taking a judicial notice of the amicus brief, that is a Brandeis-style brief that helps with the kind of social science aspect that the court can take judicial notice of those legislative facts.

[00:31:27] Speaker 02:
As to the unreasonableness that Judge Don Stone was referring to about the delay, the delay is also exacerbated by the fact that this was deemed a, quote, immediate threat, but yet not acted on for three weeks.

[00:31:42] Speaker 02:
Objectively, the jury could find that to be unreasonable.

[00:31:46] Speaker 02:
The idea that Miranda warning was coupled with a coercive segregation, forcing an unconstitutional Catch-22 between two competing rights, the right to remain silent and the right to speak.

[00:31:59] Speaker 02:
And then finally, as to the jury instruction, deference must have a source.

[00:32:04] Speaker 02:
Either legislative, like in Bell B. Williams under the ADA, or judicial,

[00:32:09] Speaker 02:
Uh, like under turner be safely neither is present here.

[00:32:12] Speaker 02:
And with that, we asked that the summary judgment errors be reversed and that the trial be remanded for a new track.

[00:32:19] Speaker 02:
Thank you.

[00:32:20] Speaker 03:
Thank you.

[00:32:20] Speaker 03:
We thank both counsel for the briefing and argument.

[00:32:23] Speaker 03:
This case is submitted.