[00:00:00] Speaker 02:
Our third case is 23-1238, chronic versus prior.

[00:00:04] Speaker 02:
Mr. Doherty, you may proceed.

[00:00:09] Speaker 04:
May it please the court, my name is Ryan Doherty.

[00:00:12] Speaker 04:
And today I'm here on behalf of Robert McCafferty and Christopher Pryor.

[00:00:17] Speaker 04:
These officers submit that the district court erred in denying them qualified immunity.

[00:00:22] Speaker 04:
I'm going to focus my remarks today on what I believe to be the crux of this appeal, which is whether the officers had probable cause, whether actual or arguable, to arrest Kronick for failing to desist or disperse.

[00:00:42] Speaker 04:
In doing so, I think this court needs to review the events that occurred prior to the arrest

[00:00:53] Speaker 04:
and take those historical facts from the perspective of a reasonable officer in determining whether qualified immunity is appropriate.

[00:01:05] Speaker 00:
Do we do that based on the universe of facts that the district court found?

[00:01:10] Speaker 00:
We do, Your Honor.

[00:01:12] Speaker 04:
I have and that's what I would

[00:01:16] Speaker 04:
requests this court do.

[00:01:18] Speaker 04:
I believe that we prevail whether we take that set of facts or the other set of facts, which I'll just briefly tell you about.

[00:01:29] Speaker 01:
Well, we can't take another set of facts, can we?

[00:01:32] Speaker 01:
No.

[00:01:33] Speaker 01:
Is there any point in going over facts that we can't consider?

[00:01:37] Speaker 01:
I think you can consider these.

[00:01:41] Speaker 01:
But that's outside our jurisdiction.

[00:01:44] Speaker 01:
We're back to collateral order review, right?

[00:01:49] Speaker 02:
Unless they blatantly contradict.

[00:01:51] Speaker 02:
Thank you, Your Honor.

[00:01:53] Speaker 02:
Is that what you're saying?

[00:01:54] Speaker 04:
That's where I was going.

[00:01:55] Speaker 04:
And I don't think it's important here, but I do think it's important if you believe that we need to quibble about the words that were used for the order.

[00:02:03] Speaker 00:
What findings within the universe effects that the district court found would you argue

[00:02:09] Speaker 00:
were blatantly contradicted by any of the various videos.

[00:02:14] Speaker 00:
Sure.

[00:02:14] Speaker 04:
And again, I believe that we prevail even with the universal facts that the court found.

[00:02:22] Speaker 04:
However, there is one, certainly, on page 25 of the appendix.

[00:02:29] Speaker 04:
The district court suggests that prior, when he directs Kronick to leave the scene,

[00:02:38] Speaker 04:
uses interrogatives.

[00:02:40] Speaker 00:
Well, he did.

[00:02:43] Speaker 00:
I mean, you could see it on Pryor's video.

[00:02:47] Speaker 00:
And in your brief, you never say that Pryor said, Pradek, you are to leave, I think, in front of me.

[00:02:58] Speaker 00:
But I think your argument in your brief is, well, why are you still sticking around?

[00:03:05] Speaker 00:
Why don't you leave the immediate premises?

[00:03:07] Speaker 00:
And she says,

[00:03:08] Speaker 00:
Because I live here.

[00:03:10] Speaker 00:
I live in this motel.

[00:03:12] Speaker 00:
So you're not suggesting, are you, or are you, that when the district court said there was no order to leave, that that is blatantly contradicted under Scott because he didn't use a question.

[00:03:27] Speaker 00:
He used a command.

[00:03:29] Speaker 00:
You're not arguing that, are you?

[00:03:33] Speaker 04:
I'm saying that if you're going to make that distinction, we need to at least have the proper words before this court.

[00:03:40] Speaker 04:
OK.

[00:03:41] Speaker 04:
And so the words that the district court used are, why don't you go over there?

[00:03:46] Speaker 04:
Why don't you leave the scene?

[00:03:49] Speaker 04:
That is not what Officer Pryor said.

[00:03:52] Speaker 04:
If you look at appendix 168 at 756 to 803, Officer Pryor said,

[00:04:02] Speaker 04:
I want to back up to get to the facts beforehand so you then understand why this would make a difference.

[00:04:08] Speaker 04:
But I'm just going to tell you what the difference is here.

[00:04:12] Speaker 04:
He says, OK, then.

[00:04:13] Speaker 04:
I'll tell you what.

[00:04:15] Speaker 04:
Why don't you leave?

[00:04:18] Speaker 04:
Leave the immediate area.

[00:04:21] Speaker 04:
And he's interrupted.

[00:04:22] Speaker 04:
He says, why don't you leave?

[00:04:24] Speaker 04:
Mrs. Cronick, as you brought up, Judge Ockrock, said, no.

[00:04:28] Speaker 04:
No.

[00:04:30] Speaker 04:
I don't need to.

[00:04:31] Speaker 04:
I live here.

[00:04:34] Speaker 04:
And then Pryor says, leave the immediate area and uses physical touch to move her out of the way.

[00:04:44] Speaker 04:
I don't think we need to get to that to determine whether there's probable cause in this case, but I at least wanted the record to be clear on that.

[00:04:52] Speaker 02:
The state court found that was not an order, didn't it?

[00:04:56] Speaker 04:
The municipal court, using the same words, why don't you go over there, why don't you leave the scene, did find that, Your Honor.

[00:05:05] Speaker 04:
I'm not seeking, on behalf of my clients, to relitigate the criminal case.

[00:05:11] Speaker 04:
And the probable cause standard is low.

[00:05:15] Speaker 04:
I don't need to prove that.

[00:05:17] Speaker 04:
This court doesn't need to find that.

[00:05:21] Speaker 04:
What this court needs to find is that there is a probability

[00:05:26] Speaker 04:
based on a reasonable officer, his perspective, that she had violated a law in his presence.

[00:05:37] Speaker 04:
I want to go back to set the scene.

[00:05:39] Speaker 04:
These officers showed up to a dying man.

[00:05:43] Speaker 04:
They were called to show up to a dying man.

[00:05:47] Speaker 04:
They came with lights on.

[00:05:48] Speaker 04:
They came with uniforms.

[00:05:50] Speaker 02:
Called by misproduct.

[00:05:53] Speaker 04:
That is what the court found, technically called by her husband, but I won't put forward that.

[00:05:58] Speaker 04:
It was certainly called by Mrs. Kronick.

[00:06:01] Speaker 04:
She requested them to arrive.

[00:06:04] Speaker 04:
They did arrive.

[00:06:05] Speaker 04:
McCafferty arrived first, and what did he find?

[00:06:09] Speaker 04:
A man dying in an unsecured crime scene, and Mrs. Kronick standing over a dying man.

[00:06:20] Speaker 04:
What did McCafferty also find?

[00:06:23] Speaker 04:
Someone was moving in and out of the room, taking stuff out of that crime scene, moving stuff around.

[00:06:30] Speaker 04:
He asked her to stop.

[00:06:34] Speaker 04:
She continued to do that.

[00:06:35] Speaker 04:
Eventually, he had to detain her because she continued to do that.

[00:06:39] Speaker 04:
Additionally, he found someone else in a room who was unknown.

[00:06:46] Speaker 04:
Now Mrs. Cronick, as the district court found, did say there was a gentleman in the

[00:06:55] Speaker 04:
But McCafferty is dealt with that unsecured crime scene and people moving in and out of it before his backup officers arrive.

[00:07:05] Speaker 04:
His backup officers arrive, and by the way, this is a dangerous area.

[00:07:10] Speaker 04:
The court didn't find them.

[00:07:12] Speaker 04:
It's well-known dangerous area, violence, drugs, alcohol.

[00:07:18] Speaker 04:
His backup officers arrive and,

[00:07:23] Speaker 04:
He puts them to work investigating that crime scene.

[00:07:26] Speaker 04:
Because as we all know, those officers have the right to secure that crime scene.

[00:07:32] Speaker 04:
To detain or control suspects and non-suspects in that area.

[00:07:37] Speaker 00:
When you say the crime scene, Chiefs Pryor and Kronick are both in the parking lot.

[00:07:43] Speaker 00:
They're not in the apartment.

[00:07:45] Speaker 00:
Do you agree with that?

[00:07:46] Speaker 04:
Yes, Your Honor.

[00:07:47] Speaker 04:
They are not in the apartment.

[00:07:50] Speaker 04:
The dying man has been dragged out right outside the door of the apartment.

[00:07:54] Speaker 00:
The prior department is, let's say, here.

[00:07:57] Speaker 00:
The apartment is here.

[00:07:59] Speaker 00:
And prior is here.

[00:08:00] Speaker 00:
The chronic is here.

[00:08:01] Speaker 00:
And so when he says, why don't you leave, ellipsis, leave the immediate scene, and either touches her arm or whatever he does,

[00:08:12] Speaker 00:
You can see Pryor's video.

[00:08:15] Speaker 00:
She walks away, and he tails her into the middle of the parking lot.

[00:08:21] Speaker 00:
And then he and the first officer discuss whether or not to arrest her for disorderly conduct.

[00:08:28] Speaker 00:
And then the supervisor comes in and says, oh, I got an idea of a figure to disperse, to desist or disperse.

[00:08:37] Speaker 00:
There's the ticket.

[00:08:38] Speaker 00:
Let's put her in handcuffs and keep her in the back of the patrol car for 47 minutes.

[00:08:47] Speaker 00:
The court found that there was no order.

[00:08:51] Speaker 00:
You haven't argued in your appeal brief that that is blatantly contradicted by any of the video.

[00:09:00] Speaker 00:
If there is no order in the statute, the ordinance rather,

[00:09:05] Speaker 00:
starts out by requiring an order, how can there be arguable probable cause for a favor to desist or to disperse?

[00:09:16] Speaker 04:
In answer to that, I would say we need to go to where I started, which was... And also substantial interference with the crowds who kind of link together.

[00:09:26] Speaker 04:
That's correct.

[00:09:28] Speaker 04:
I think, however, if you look at the...

[00:09:33] Speaker 04:
District Court's order, it's Appendix 301, the issue she takes with this is whether this was an order or not.

[00:09:42] Speaker 04:
There's no other part of that statute that is at issue for her in terms of a material fact that would discount qualified immunity in this case.

[00:10:02] Speaker 04:
And I wanted to go back to your question.

[00:10:07] Speaker 00:
If he says, why don't you leave?

[00:10:10] Speaker 00:
Well, because I live here.

[00:10:12] Speaker 00:
And then there was a finding that I wasn't ordered to leave.

[00:10:17] Speaker 00:
And there was also a finding that once she was asked to whatever, or whatever they were, came out of a prior's bound, she does leave.

[00:10:27] Speaker 00:
And he's the one that tells her, how can all of that, which is what the court found,

[00:10:33] Speaker 00:
that were bound by Edward Lewis v. Strip.

[00:10:35] Speaker 00:
How can all of that amount to arguable probable cause for a failure to desist or disperse?

[00:10:42] Speaker 04:
So I'll back up again, and I will say this is a dangerous area.

[00:10:48] Speaker 04:
They don't know what's out there.

[00:10:49] Speaker 04:
They don't know what they're dealing with.

[00:10:51] Speaker 04:
If you look at what these officers do, McCafferty is there for eight minutes before the arrest occurs.

[00:10:59] Speaker 04:
prior less than that.

[00:11:01] Speaker 04:
But what happens right before he says the words that I've given you is that she has disclaimed any knowledge of this, of the scene.

[00:11:13] Speaker 04:
She says, I don't know anything about this.

[00:11:17] Speaker 04:
I just called.

[00:11:19] Speaker 04:
So he has someone who he's investigating, trying to figure out what's going on.

[00:11:24] Speaker 04:
They don't know what they're dealing with at this point.

[00:11:28] Speaker 04:
She has now indicated, I'm not going to talk to you.

[00:11:32] Speaker 04:
He has to get back to secure crime scene, make sure the medical personnel are safe, and continue his investigation of the scene.

[00:11:43] Speaker 04:
For any reasonable officer in that situation, after that occurs, understanding what he has to do

[00:11:53] Speaker 04:
For the district courts to suggest that a reasonable officer, based on all these facts, based on what he's dealing with, didn't mean that Mrs. Kronick needed to leave so that he could continue his investigation, I don't think his reasonable or a prudent officer would have understood that to be the case.

[00:12:17] Speaker 04:
So in answer to your question,

[00:12:20] Speaker 04:
I think what we are asking this court to do is to take those facts and to determine whether there was probable cause based on all of those facts.

[00:12:32] Speaker 04:
And in this instance, what I think the district court has done is made an interrogative statement.

[00:12:39] Speaker 04:
She put question marks around it to make it appear unclear.

[00:12:44] Speaker 04:
However, if this court, based on a reasonable officer,

[00:12:49] Speaker 04:
stepped back and said he meant that she needed to leave.

[00:12:54] Speaker 01:
She said no.

[00:12:56] Speaker 01:
She stepped back and did not move.

[00:12:57] Speaker 01:
Can I just jump in?

[00:12:59] Speaker 01:
Your argument seems almost to be asking us to do a de novo review, which we're not supposed to do on interlocutory review.

[00:13:11] Speaker 01:
If the district court found a fact, whether you agree with it or not, whether we agree with it or not,

[00:13:18] Speaker 01:
Unless it's blatantly contradicted by the record, don't we have to accept that fact?

[00:13:25] Speaker 01:
Isn't that what the law is applied to this situation?

[00:13:30] Speaker 04:
I am not asking you to redo the facts in this case.

[00:13:34] Speaker 04:
But what I'm asking you to do is judge these facts based on the appropriate standard, what this court has deemed to be the appropriate standard to determine qualified immunity.

[00:13:46] Speaker 04:
So I'm not asking you to change what it is.

[00:13:48] Speaker 04:
Even if he did say, why don't you go over there?

[00:13:51] Speaker 04:
Why don't you just leave the scene?

[00:13:53] Speaker 04:
Any reasonable person understands that that means get out of here.

[00:14:00] Speaker 01:
But the court went on to say there's a genuine issue as to whether she was asked to leave.

[00:14:06] Speaker 01:
We draw an inference at this point in favor of the plaintiff.

[00:14:12] Speaker 01:
We're going to have to draw that inference and find that she wasn't asked to leave.

[00:14:18] Speaker 01:
Can we change that at this point?

[00:14:23] Speaker 01:
Maybe if it weren't a collateral or interlocutor review, but aren't you stuck with that finding and aren't we stuck with that finding?

[00:14:35] Speaker 04:
I think you're stuck with the finding of what he said.

[00:14:38] Speaker 01:
No, that's not what I asked.

[00:14:41] Speaker 01:
Are we stuck with the finding by the district court that she wasn't asked to leave?

[00:14:47] Speaker 04:
I don't think you are.

[00:14:48] Speaker 04:
And I don't think that oversteps the bounds of what you can do on this appeal when you're considered a qualified community.

[00:14:57] Speaker 01:
Have you got a case where we've done something like that?

[00:15:01] Speaker 01:
Can you give us a case?

[00:15:03] Speaker 04:
I can give you two cases that I think I gave you in... Well, you probably did, but remind me.

[00:15:11] Speaker 04:
I see that I'm out of time.

[00:15:13] Speaker 02:
Go ahead and finish the question.

[00:15:14] Speaker 02:
Go ahead and answer this question.

[00:15:15] Speaker 04:
Yes, Your Honor.

[00:15:17] Speaker 04:
Boustios v. City of Carlsbad and also Clark v.

[00:15:25] Speaker 04:
city of Boulder.

[00:15:29] Speaker 04:
In each of those cases, in Clark V. Boulder, one of your colleagues was sitting by designation.

[00:15:35] Speaker 04:
Again, this would not be, this would be persuasive authority for you all.

[00:15:40] Speaker 04:
However, he said, based on what he saw in the facts, that probable cause

[00:15:49] Speaker 04:
wasn't present for when this individual could not have complied.

[00:15:55] Speaker 04:
So she was given two commands, get back, and then she was pushed and told to get back within a matter of a second or something along those lines.

[00:16:06] Speaker 04:
Your colleague agreed that that couldn't establish probable cause.

[00:16:11] Speaker 04:
But what he did find, which was different, was that there was probable cause

[00:16:17] Speaker 04:
for her.

[00:16:20] Speaker 04:
Okay, this is Clark.

[00:16:21] Speaker 01:
Yes, that's correct.

[00:16:22] Speaker 01:
Okay, I think we can look at that.

[00:16:24] Speaker 01:
Okay.

[00:16:25] Speaker 02:
All right, thank you, counsel.

[00:16:26] Speaker 01:
Thank you.

[00:16:36] Speaker 03:
Good morning, Your Honors.

[00:16:38] Speaker 03:
May it please the Court, I am Reid Allison, and I'm here on behalf of Sasha Kronick today.

[00:16:44] Speaker 03:
Can you get the mic up closer to your mouth?

[00:16:46] Speaker 03:
Yes, I probably can, and I can also stay closer to it.

[00:16:50] Speaker 03:
Thank you, Your Honors.

[00:16:50] Speaker 03:
Thanks.

[00:16:52] Speaker 03:
So first, I'm glad

[00:16:55] Speaker 03:
all of your honors caught on in this, but though Ms.

[00:16:57] Speaker 03:
Chronic at that time lived in what has been described over and over again as a dangerous location, on this day she heroically helped to save this man's life.

[00:17:08] Speaker 03:
These two defendant officers knew that pretty much immediately, very early on in the interaction and well before defendant Pryor touched or grabbed Ms.

[00:17:18] Speaker 03:
Chronic and she began yelling and all of that.

[00:17:21] Speaker 03:
This was a drug overdose?

[00:17:23] Speaker 03:
It was, Your Honor.

[00:17:24] Speaker 03:
And essentially what happened is Sasha lived in that motel with her family.

[00:17:28] Speaker 03:
She was leaving her room that morning, it was nine-ish, I believe she was going to work, and she saw a man kind of under that awning on the sidewalk out in front of a different room.

[00:17:41] Speaker 03:
And I believe the other woman who was there with him cried out and said, he's overdosing.

[00:17:46] Speaker 03:
And that's when Sasha and her husband got in touch with 911.

[00:17:50] Speaker 03:
And Sasha helped coach this woman how to do CPR until the fire department arrived to take over.

[00:17:56] Speaker 03:
And so I think your points have all been correct with Mr. Doherty, that the findings of the district court are pretty clear.

[00:18:07] Speaker 03:
Below, they argued,

[00:18:11] Speaker 03:
Three other substantial arguments.

[00:18:13] Speaker 03:
So the district court summary judgment order has a bunch of other things that aren't on this appeal, but I think the thoroughness of the entire order kind of speaks for itself.

[00:18:22] Speaker 03:
But the one that they've settled on today before you all is the failure to disperse.

[00:18:28] Speaker 03:
And obviously one of the elements of that crime is that an order is given.

[00:18:33] Speaker 03:
Obviously another element of the crime is that the person doesn't walk away.

[00:18:37] Speaker 03:
The district court made findings essentially that a reasonable jury could find from this video, first that no order was given, and second, to the extent anything was close to an order, Ms.

[00:18:48] Speaker 03:
Cronick had turned and walked away.

[00:18:51] Speaker 00:
Is it possible for a reasonable officer that was standing by to interpret Officer Pryor's words to be the effect of an order, or maybe to put it another way,

[00:19:04] Speaker 00:
Are there circumstances in which an officer could interpret something that is explicitly framed as a question as being just a polite order?

[00:19:18] Speaker 03:
Well, to point you to Bustios, which Mr. Doherty just raised, that case involved an order that ended with a question that I think is pretty telling.

[00:19:28] Speaker 03:
I'm going to ask you one more time.

[00:19:30] Speaker 03:
You're interfering with this investigation.

[00:19:31] Speaker 03:
Now you need to go one more time.

[00:19:33] Speaker 03:
Do you want to go to jail?

[00:19:35] Speaker 03:
Ends with a question.

[00:19:37] Speaker 03:
This makes clear that what's happening here is an order.

[00:19:40] Speaker 00:
OK.

[00:19:41] Speaker 00:
So in other words, there are circumstances, as illustrated in Bustillos, that an officer can, in effect, order someone to do something by putting it in the form of a question.

[00:19:55] Speaker 04:
Yes, Your Honor.

[00:19:56] Speaker 00:
Now, is it at least arguable that someone standing by understanding

[00:20:04] Speaker 00:
what had transpired and what was continuing to transpire.

[00:20:09] Speaker 00:
After all, the overdose man, the wife had given CPR, but he still hadn't been shipped to the hospital yet.

[00:20:19] Speaker 00:
And there's only three officers.

[00:20:22] Speaker 00:
These are two of them, McCafferty and Pryor.

[00:20:25] Speaker 00:
Is it at least arguable that someone would have heard Pryor's question?

[00:20:34] Speaker 00:
and said, you know, he's telling her to get out of the way.

[00:20:40] Speaker 00:
We have this unconscious man.

[00:20:42] Speaker 00:
We've got this other unknown man who's obviously on drugs in the bathroom, the wife who's packing up.

[00:20:52] Speaker 00:
And we want her out of the way.

[00:20:56] Speaker 00:
And she, although she had started out heroically, she is unquestionably disrupting.

[00:21:04] Speaker 00:
demanding this talk to the supervisor, yelling about the arm being prior, touching her arm, holding her arm.

[00:21:16] Speaker 00:
And they are trying to tend to an emergency situation.

[00:21:21] Speaker 00:
Why isn't it least arguable that they have probable cause that even though we are bound by the judge's word that there was no order that

[00:21:31] Speaker 00:
that the words were close enough that they could be reasonably interpreted as being ineffective, polite command.

[00:21:39] Speaker 00:
Get the heck out of the way, ma'am.

[00:21:40] Speaker 00:
We've got business to attend to, and we can't do that.

[00:21:45] Speaker 03:
Yes, Your Honor.

[00:21:45] Speaker 03:
To that I would say, to your point about how she's being disruptive, that only happens after Pryor asks her those questions, or maybe one question and one thing that's close to a question, as we've discussed today, and then touches her without her consent.

[00:21:59] Speaker 03:
But all the while, she's

[00:22:01] Speaker 03:
walking away.

[00:22:02] Speaker 03:
When he touches her, she is already turned around to do what he's asked.

[00:22:06] Speaker 03:
There's not another order or anything like an order after that.

[00:22:10] Speaker 03:
The next thing that's discussed is McCafferty arrives and says, hey, I heard yelling, so I came outside.

[00:22:16] Speaker 03:
Do we need to arrest her for disorderly conduct?

[00:22:18] Speaker 03:
And then they talk in front of Sasha about what to arrest her for.

[00:22:21] Speaker 03:
And then they grab her ostensibly for disorderly conduct at that point.

[00:22:26] Speaker 02:
As a subset of that, couldn't that

[00:22:31] Speaker 02:
point illustrate that the law was not clearly established here and that even if they were wrong, our case law didn't clearly establish that arguable problem cause wasn't here and kind of fast-moving, fog of war type situation.

[00:22:50] Speaker 02:
That's one of the purposes of qualified immunity.

[00:22:54] Speaker 03:
For one thing about the fast-moving fog of war, Your Honor, it's true that that motel gets a lot of 911 calls.

[00:23:02] Speaker 03:
The body cam itself, I've seen a lot of body cams.

[00:23:06] Speaker 03:
It doesn't look all that fast-moving to me.

[00:23:08] Speaker 03:
They're keeping an eye on the people who they know are related somehow to the man who's overdosing.

[00:23:12] Speaker 03:
He's being cared for by the fire department.

[00:23:15] Speaker 03:
These officers are, first, Pryor was just talking to Sasha Kronick.

[00:23:19] Speaker 03:
It's clearly a consensual encounter.

[00:23:21] Speaker 03:
At the point that she says, you know, that question's a little bit too specific and personal, she's like, I'm not going to answer that.

[00:23:26] Speaker 03:
Then he does what he does, quickly touches her.

[00:23:29] Speaker 03:
She starts yelling in a First Amendment protected way.

[00:23:34] Speaker 03:
Sure, it was a scene.

[00:23:36] Speaker 03:
But to your point, I believe, Judge Baccarat, the scene was

[00:23:41] Speaker 03:
the man who was overdosing and the room that we know was connected to him and the two people who were also connected to that.

[00:23:47] Speaker 03:
So by the time she's grabbed and arrested, she's at least in the middle of the parking lot, if not marginally on the other side.

[00:23:56] Speaker 03:
So she has walked away from what could realistically be considered the scene.

[00:24:02] Speaker 03:
If there was more scene that needed to be gotten away from, they needed to specify that because she lives there.

[00:24:09] Speaker 03:
This is her home.

[00:24:11] Speaker 03:
So she has backed away from what looks like the scene, because that is the scene.

[00:24:16] Speaker 01:
Could I just get back on this arguable probable cause that Judge Timkovich is raising?

[00:24:25] Speaker 01:
Is there a distinction between, on the one hand, the district court saying that there's a genuine issue of fact

[00:24:35] Speaker 01:
I'm going to draw the inference that Officer Pryor did not issue the order.

[00:24:43] Speaker 01:
Okay, so we have that.

[00:24:44] Speaker 01:
But is that something that is different from the question of whether a reasonable officer could nonetheless think that she had been asked to leave?

[00:24:58] Speaker 01:
And if so, why wouldn't they have arguable probable cause?

[00:25:04] Speaker 03:
First, Your Honor, I don't think, I think the district court evaluated it correctly and the standard is what a reasonable officer would have thought or not.

[00:25:16] Speaker 01:
Well, let's split it into the two steps of qualified immunity.

[00:25:24] Speaker 01:
We have whether there was a violation because there was not probable cause.

[00:25:29] Speaker 01:
Maybe for the reason that you just stated.

[00:25:31] Speaker 01:
But then we get to the second step of qualified immunity.

[00:25:36] Speaker 01:
And that is, well, was this a violation of clearly established law?

[00:25:44] Speaker 01:
You have the burden on that.

[00:25:47] Speaker 01:
Have you shown that there was no arguable probable cause?

[00:25:52] Speaker 03:
So what I would say to the step one versus step two is there's kind of an underlying step zero that applies to both of those prongs and that comes from Toland versus Cotton, Supreme Court case and various other cases, which is even when you're doing just the second prong, the clearly established prong, you can't impute fact disputes into that.

[00:26:12] Speaker 03:
Right.

[00:26:12] Speaker 03:
So for purposes of the clearly established question here, after the district court has made these correct findings, is would any reasonable officer know that they did not have probable cause to arrest someone who they had not given an order to disperse and or also who had walked away after what was said and is claimed to be an order was given?

[00:26:34] Speaker 03:
So Toland versus Cotton says you've got to be very careful about the set of facts we're talking about and how we describe the clearly established question because it's very easy to slip into viewing essentially the facts in the light most favorable to defendants and putting that into the clearly established and saying, well, I don't know.

[00:26:50] Speaker 03:
Now, whether there's a case that says, you know, why don't you leave is or is not an order,

[00:26:59] Speaker 03:
I'm not aware of such a case, but that strikes me as, even for qualified immunity purposes, splitting hairs pretty thinly.

[00:27:08] Speaker 01:
Why isn't there an argument for qualified immunity, a stronger argument actually, for Officer McCafferty?

[00:27:19] Speaker 01:
Because didn't he rely on information from Officer Pryor?

[00:27:24] Speaker 03:
Yes, he did.

[00:27:27] Speaker 03:
although he did so after he had arrested Pryor.

[00:27:29] Speaker 03:
He comes to the scene, hears the yelling, and says, hey, do we need to arrest her for disorderly conduct?

[00:27:35] Speaker 03:
They go back and forth a little bit, and then he arrests her, apparently, for disorderly conduct.

[00:27:40] Speaker 03:
As was discussed earlier, I believe it's Sergeant Inazu later comes to the scene.

[00:27:45] Speaker 03:
Well, I'm just wondering if you think they stand in different shoes on this issue.

[00:27:51] Speaker 03:
I don't because of how the facts actually played out.

[00:27:55] Speaker 03:
And it's reflected in the way that they argued at summary judgment, frankly.

[00:28:00] Speaker 03:
They argued for disorderly conduct at summary judgment.

[00:28:02] Speaker 03:
They argued for interference at summary judgment.

[00:28:04] Speaker 03:
They still, on the scene and at summary judgment, they were throwing everything at the wall they could, and that's fine.

[00:28:11] Speaker 03:
But that means that they're together on that, McCaffrey and Pryor, in my view.

[00:28:19] Speaker 03:
So Mr. Dory didn't address the search issue at all.

[00:28:26] Speaker 03:
I think once you, if there's an affirmance on the underlying arrest, that goes a long way to getting us all the way to affirming the search issue as well.

[00:28:37] Speaker 03:
The way the search is conducted certainly looks like a search incident to an arrest.

[00:28:42] Speaker 03:
kind of proforma that happens right after they handcuff her, if the arrest itself is affirmed as potentially unconstitutional?

[00:28:49] Speaker 01:
Well, aren't pat downs sometimes justified even in the absence of probable cause of arrest?

[00:28:58] Speaker 01:
There's a reasonable suspicion of some kind of potential danger.

[00:29:05] Speaker 01:
And given the context in which all of this was happening,

[00:29:11] Speaker 01:
dangerousness of the location justify the pat down search?

[00:29:16] Speaker 03:
No, Your Honor.

[00:29:17] Speaker 03:
And that's, we cite a bunch of case law about mere presence in a high crime or a dangerous area is not enough.

[00:29:25] Speaker 03:
To that point, what had happened is Sasha Kronick had helped to save this man's life.

[00:29:29] Speaker 03:
She had given the police some information, including that she lived there, including that there was some other guy in the room that they should keep an eye out for, and they went and found.

[00:29:38] Speaker 03:
Then she stopped.

[00:29:43] Speaker 03:
She has never done anything threatening.

[00:29:45] Speaker 03:
She never does anything threatening on the video.

[00:29:46] Speaker 03:
She never does anything suspicious on the video.

[00:29:49] Speaker 03:
She goes from being cordial enough and giving information to yelling at them for a very specific reason that's clear what she's mad about, right?

[00:29:59] Speaker 03:
And that's very much First Amendment protected speech.

[00:30:01] Speaker 03:
So really all they have left is that she lives at this motel.

[00:30:06] Speaker 03:
And the motel is people who are, you know, these type of places are people who are on the fringes of society.

[00:30:11] Speaker 03:
It's very, very, very low income housing.

[00:30:14] Speaker 03:
It's the type of folks who are one step away from unfortunately living on the street.

[00:30:18] Speaker 03:
So to say that because a person lives there or even is present there is alone good enough to pat them down, I don't think suffices to satisfy decades worth of case law at this point.

[00:30:33] Speaker 00:
Was she petted down after Officer McCafferty told her she was under arrest?

[00:30:41] Speaker 03:
Yes, I believe so.

[00:30:42] Speaker 03:
It's my recollection of the video that he tells her that basically as he's grabbing her, and then she ends up down on the ground, they handcuff her, they get her back up on her feet, handcuffed behind her back, and then the pat down happens.

[00:30:54] Speaker 03:
So yes.

[00:30:59] Speaker 03:
Unless there are other questions.

[00:31:01] Speaker 03:
I would ask that the District Court's summary judgment denial of these claims be affirmed.

[00:31:06] Speaker 02:
Thank you, Council.

[00:31:07] Speaker 02:
Council are excused.

[00:31:08] Speaker 02:
We appreciate your arguments this morning.