[00:00:00] Speaker 02:
Please be seated.

[00:00:08] Speaker 02:
Next case this morning is Dennis versus Pazan, 23-1313.

[00:00:16] Speaker 02:
Counsel for Appellant, if you would make your appearance and proceed, please.

[00:00:20] Speaker 01:
Yes.

[00:00:22] Speaker 01:
Your Honorable Judges, Mr. Chief Judge, Counsel, my name is Craig Pankratz and I represent Paul Pazan.

[00:00:29] Speaker 01:
the former chief of police for the Denver Police Department.

[00:00:32] Speaker 01:
May it please the court.

[00:00:35] Speaker 01:
Chief Payson is entitled to qualified immunity on Susie Dennis's Fourth Amendment excessive force claim.

[00:00:41] Speaker 01:
Qualified immunity protects government officials who do not violate the reestablished rights.

[00:00:47] Speaker 01:
When an official raises qualified immunity, the plaintiff bears the burden to prove it is inapplicable.

[00:00:53] Speaker 01:
Ms.

[00:00:53] Speaker 01:
Dennis has failed to meet that burden.

[00:00:55] Speaker 02:
Why isn't Mr. Payson's conduct similar to the supervisory conduct in Buck and Fogarty?

[00:01:02] Speaker 01:
Yes, and I was planning on addressing the really established prong first, so thank you.

[00:01:08] Speaker 01:
Fogarty and Buck involve on-the-scene supervisors observing the protests, making contemporaneous orders in response to protesters.

[00:01:19] Speaker 01:
Here we have Chief Payson, who

[00:01:23] Speaker 01:
two to three days before, depending on what conduct we look at, engaged in what he did, excuse me, did what he did that is an issue in this case.

[00:01:33] Speaker 01:
He opened a command post, and this was about three days before.

[00:01:36] Speaker 01:
He generally authorized the use of less lethal munitions.

[00:01:40] Speaker 01:
He appointed a different officer to supervise the protest response.

[00:01:44] Speaker 01:
He did not work for the same law enforcement agency as the officer who used the less lethal munition in this case.

[00:01:50] Speaker 01:
He did not directly supervise the protest response.

[00:01:53] Speaker 01:
He was not present when the injury occurred.

[00:01:56] Speaker 01:
He allowed his subordinates to act without his specific direction.

[00:02:00] Speaker 02:
He did not work for the same agency as the officer who used the less legal munitions, but he was responsible, was he not?

[00:02:11] Speaker 01:
To a degree, yes.

[00:02:12] Speaker 01:
The complaint alleges that each agency was responsible for its own officers.

[00:02:17] Speaker 01:
However,

[00:02:18] Speaker 01:
Denver, because it was happening in Denver, was taking the lead on the protest response.

[00:02:22] Speaker 02:
And so ultimately, based on my understanding of the complaint, I accept the point that he wasn't involved in making the contemporaneous decisions about what happened.

[00:02:33] Speaker 02:
But if you had to set up a organizational chart, he would have been at the top of that chart.

[00:02:37] Speaker 02:
Right.

[00:02:38] Speaker 01:
I think that's fair to say.

[00:02:39] Speaker 01:
OK.

[00:02:39] Speaker 01:
Yeah.

[00:02:44] Speaker 00:
Anyway, it's the fact that he was not

[00:02:47] Speaker 00:
on the scene or present when this happened, when the injury happened.

[00:02:54] Speaker 00:
Does that alone resolve the supervisory liability claim?

[00:02:58] Speaker 01:
Honestly, I don't think it does.

[00:02:59] Speaker 01:
I think if he were observing by a video feed or receiving contemporaneous reports, I don't think that is the dispositive factor here.

[00:03:08] Speaker 01:
Really, if we're to boil down Fogarty and Buck, what we have in those cases is that

[00:03:14] Speaker 01:
that supervisor made a contemporaneous order on the scene in response to the specific protest conduct.

[00:03:22] Speaker 01:
Now, if he had been watching from a video or was getting updates and made the same orders, I don't think it would have changed things in Fogarty and Buck.

[00:03:31] Speaker 01:
But I think that's the most important issue here, is that it is a contemporaneous, specific order to engage in specific action against protesters.

[00:03:43] Speaker 01:
Frankly, we just don't have that in Chief Payson's case.

[00:03:46] Speaker 01:
He organized the response days before.

[00:03:48] Speaker 01:
And then the other issue, the alleged order of selectively enforcing the curfew, again, days before.

[00:03:56] Speaker 01:
and also the alleged praise, well, the praise for the restraint of the officers that happened, I believe, two days before Ms.

[00:04:05] Speaker 01:
Dennis's injury.

[00:04:06] Speaker 01:
So we've got several days before it, and we just simply do not have a single case where we hold a supervisor, let alone a police chief, liable for the decisions that he or she made days before an injury.

[00:04:21] Speaker 01:
This is simply unprecedented.

[00:04:23] Speaker 01:
And because it is unprecedented,

[00:04:25] Speaker 01:
Mrs. Dennis' right is not clearly established.

[00:04:31] Speaker 01:
I'd like to move on to the violation prong now, unless there's additional questions about the clearly established prong.

[00:04:37] Speaker 01:
So even though a non-Denver Police Department officer injured Ms.

[00:04:41] Speaker 01:
Dennis, and each law enforcement agency was responsible for its own officers, granted, Chief Payson being at the top, Ms.

[00:04:48] Speaker 01:
Dennis' claims, Ms.

[00:04:50] Speaker 01:
Dennis claims Chief Payson is liable under the theory of supervisory liability.

[00:04:55] Speaker 01:
However, supervisory liability only holds supervisors liable for their own unconstitutional misconduct.

[00:05:02] Speaker 01:
I believe another phrase is that it has to be active unconstitutional conduct.

[00:05:07] Speaker 01:
We have to have a supervisor violating the Constitution on his own.

[00:05:12] Speaker 01:
We cannot have respond yet superior.

[00:05:13] Speaker 01:
We cannot impute the conduct of subordinates to the chief.

[00:05:18] Speaker 01:
We have to look exclusively at what the supervisor did.

[00:05:21] Speaker 02:
Which would be a personal participation element.

[00:05:24] Speaker 02:
Yes.

[00:05:25] Speaker 02:
Okay.

[00:05:26] Speaker 02:
Well, why can't we say that Chief Payson personally participated by virtue of his general order authorizing the use of less lethal admissions?

[00:05:39] Speaker 02:
If that order set the context for the actual

[00:05:45] Speaker 02:
unconstitutional conduct, which would have been the shooting of the plaintiff.

[00:05:52] Speaker 02:
I mean, why can't one draw a through line that results in personal participation in that situation?

[00:06:00] Speaker 01:
So if we were to look at Lewis and Serna, we have

[00:06:05] Speaker 01:
superiors making orders that result in certain conduct.

[00:06:08] Speaker 01:
However, the distinguishing factor in those cases is that those decisions that the supervisor made were deemed lawful.

[00:06:17] Speaker 01:
And because they were deemed lawful, there was no personal participation in a constitutional violation.

[00:06:22] Speaker 01:
I think we need to extend that factor a little bit more, not just say personal involvement, it's personal involvement in a constitutional violation.

[00:06:29] Speaker 01:
and simply engaging in lawful conduct is not enough to get us there.

[00:06:33] Speaker 02:
Even if that lawful conduct has a direct line to the unlawful conduct of the shooting.

[00:06:42] Speaker 02:
In other words, at least at a but for level, there would not be the shooting or use of less lethal munitions, but for the order of Chief Hazen.

[00:06:56] Speaker 01:
And that's where this bleeds into the causation factor.

[00:06:58] Speaker 01:
But four is not enough.

[00:07:00] Speaker 01:
The supervisor has to be.

[00:07:02] Speaker 00:
Yes?

[00:07:02] Speaker 00:
I'm interested in what you're going to say about causation.

[00:07:05] Speaker 00:
But before we get there, the complaint alleges that the N. Chief Payson authorized less lethal use of force against peaceful protesters.

[00:07:20] Speaker 00:
That's the allegation we're on a motion to dismiss, of course.

[00:07:24] Speaker 00:
How can that be lawful if the protesters are peaceful?

[00:07:28] Speaker 01:
Now, I may be wrong, but I don't believe the complaint uses that language.

[00:07:32] Speaker 01:
I believe that was Judge Martinez's finding.

[00:07:35] Speaker 01:
But again, I don't think the complaint says that he ordered against peaceful protesters.

[00:07:39] Speaker 01:
I could be wrong.

[00:07:41] Speaker 01:
And I could be confusing the two.

[00:07:43] Speaker 01:
Now, if...

[00:07:45] Speaker 00:
Paragraph 32, Denver's policy practices custom of authorizing ratifying officers use of less lethal force to control and suppress the protest cause peaceful protesters to be unlawfully injured.

[00:07:57] Speaker 01:
And that allegation is against Denver with a Monell claim.

[00:08:02] Speaker 01:
That is not an allegation against Chief Payson.

[00:08:05] Speaker 01:
And it's also trying to meet the requirement that Denver have an unlawful practice or custom that would give rise.

[00:08:11] Speaker 00:
You're right.

[00:08:12] Speaker 00:
It does say Denver.

[00:08:13] Speaker 00:
But it was Chief Payson who authorized these less legal forms.

[00:08:19] Speaker 00:
And I believe the allegation.

[00:08:20] Speaker 00:
I mean, wouldn't we be drawing inferences at this point in favor of Ms.

[00:08:26] Speaker 00:
Dennis?

[00:08:27] Speaker 01:
Yes, we do need to draw inferences in favor of Ms.

[00:08:29] Speaker 01:
Dennis, but only reasonable inferences.

[00:08:32] Speaker 01:
And much of the allegations that are in the complaint are conclusory.

[00:08:37] Speaker 01:
He knew about this.

[00:08:39] Speaker 01:
He authorized this.

[00:08:40] Speaker 01:
He ordered this.

[00:08:41] Speaker 01:
But there's no factual development.

[00:08:43] Speaker 01:
And so it's not proper to draw inferences in that circumstance.

[00:08:47] Speaker 01:
We just don't get there.

[00:08:48] Speaker 00:
Does the complaint tell us what it says authorized?

[00:08:52] Speaker 00:
Is it written down somewhere?

[00:08:54] Speaker 00:
Do we have anything to work off on that?

[00:08:57] Speaker 01:
I don't believe so.

[00:08:58] Speaker 01:
I believe the allegation is that he authorized the use of less lethal munitions in response to the protests.

[00:09:03] Speaker 01:
Again, I could be missing something and I readily agree to that.

[00:09:06] Speaker 01:
If the allegation is

[00:09:08] Speaker 01:
that he authorized against peaceful protestors, I think we need more than that to get a reasonable inference to meet the 12th, the rule to be six months.

[00:09:17] Speaker 00:
You were going to say something about causation.

[00:09:20] Speaker 01:
Yes.

[00:09:20] Speaker 01:
So with causation, it's not enough that there's a but-for line.

[00:09:25] Speaker 01:
I think if we look at it in a but-for context, yeah.

[00:09:30] Speaker 01:
If we look at CERNA in a but-for context, the director of prisons authorizing the warden to assemble that SWOT-like team

[00:09:38] Speaker 01:
But for that order, then the alleged violation wouldn't have happened.

[00:09:43] Speaker 01:
I think that's very clear.

[00:09:45] Speaker 00:
When does but for causation become a moving force?

[00:09:49] Speaker 01:
I think it becomes a moving force when the supervisor knew or reasonably should have known that the conduct that he or she is engaging in will likely lead or will reasonably lead to unconstitutional conduct.

[00:10:03] Speaker 01:
So if we were to look at this in a Monell context, and I don't think there's really a meaningful distinction between a Monell claim and a supervisor claim because we have to look at the defendant's specific conduct, we can look at those different ways that you establish a policy.

[00:10:18] Speaker 01:
And one of the big ones is, was the city on notice of prior unconstitutional conduct?

[00:10:25] Speaker 01:
And I think we can look at that in this exact same context.

[00:10:28] Speaker 01:
I think if Chief Payson was on notice that his officers had engaged in prior unconstitutional conduct with less lethal munitions during protests, I think we've got an issue there.

[00:10:38] Speaker 01:
I think he has some foreseeability issues.

[00:10:41] Speaker 01:
But there's simply no allegations beyond their conclusions that he was aware that his officers had engaged in prior unconstitutional conduct.

[00:10:50] Speaker 02:
Is there any, does the complaint say that all of the protesters were peaceful?

[00:10:58] Speaker 02:
Does it make any claim to that effect?

[00:10:59] Speaker 01:
I believe the language that it was a mostly peaceful protest.

[00:11:02] Speaker 01:
Mostly peaceful.

[00:11:03] Speaker 01:
And so I believe there's a reasonable inference there even supporting, given all reasonable inferences that there was some violence.

[00:11:13] Speaker 01:
So if we look at these supervisory factors,

[00:11:18] Speaker 01:
Let's finally address that state of mind factor, which really, in my opinion, merges into the personal involvement factor, because this is a Fourth Amendment excessive force claim.

[00:11:27] Speaker 01:
So Chief Payson's individual state of mind really doesn't matter, so we're looking at the reasonableness of his conduct.

[00:11:33] Speaker 01:
So we have to consider whether his decision to open a command post, appoint a commander, and authorize the use of less lethal weapons.

[00:11:46] Speaker 01:
selectively enforce the curfew and also that public praise element, we have to look at whether that conduct was reasonable.

[00:11:55] Speaker 01:
I think we explained in the brief with the selective enforcement of the curfew on its face, that would be a violation, but it doesn't cause any of these injuries.

[00:12:03] Speaker 01:
So we need to look at the other four and see if it is reasonable for him to have engaged in that conduct.

[00:12:11] Speaker 01:
Now, usually with an excessive force claim, we look at the gram factors.

[00:12:15] Speaker 01:
But the Graham factors really don't fit here because they deal with an officer on the scene.

[00:12:21] Speaker 01:
And so we just need to look at reasonableness.

[00:12:23] Speaker 01:
And I think we can actually glean some principles from Graham and other cases that could help us if we need to look at factors, but I don't think it's necessary.

[00:12:32] Speaker 01:
But Graham is really concerned about the need for force, the proportionality of the force.

[00:12:37] Speaker 01:
And I think that's really what that focuses on, but because we have a situation here where force was authorized days before, I think we need to look at foreseeability also.

[00:12:46] Speaker 01:
So if we look at the need for the force, the proportionality of the force, and the foreseeability, really if we were to apply those factors, Ms.

[00:12:54] Speaker 01:
Dennis' claim fails at foreseeability testing.

[00:12:57] Speaker 02:
And we're suggesting that the state of mind that we're talking about is objective reasonableness, right?

[00:13:03] Speaker 02:
Correct.

[00:13:03] Speaker 02:
And that's going towards

[00:13:05] Speaker 02:
The action, the primary action being the authorization of less lethal munitions, right?

[00:13:11] Speaker 01:
Yes.

[00:13:12] Speaker 02:
OK.

[00:13:13] Speaker 01:
And I'd like to reserve the rest of my time.

[00:13:16] Speaker 00:
Yes.

[00:13:17] Speaker 00:
I found one more allegation for you here.

[00:13:21] Speaker 00:
Go ahead.

[00:13:21] Speaker 00:
I jumped over to 52.

[00:13:23] Speaker 00:
Denver Chief Judge Payson, so he is mentioned in that one.

[00:13:28] Speaker 00:
And it says that they authorize their less lethal use as a force against peaceful protest.

[00:13:35] Speaker 00:
Still too conclusory for you?

[00:13:37] Speaker 01:
I believe so, yes.

[00:13:38] Speaker 01:
Because we need factual development as to that element there.

[00:13:42] Speaker 01:
But regardless, Your Honor, it's still not clearly established that a police chief under these circumstances could be held liable.

[00:13:48] Speaker 01:
And I'll reserve the rest of my time for rebuttal.

[00:14:09] Speaker 03:
Good morning, Your Honors.

[00:14:10] Speaker 03:
My name is Ingram Wilkinson, appearing on behalf of Plaintiff FLE Susie Dennis.

[00:14:15] Speaker 03:
This case is about the administration and promulgation of policies by defendant appellant Paul Pazin that authorized the use of force against peaceful and nonviolent protesters, and how those policies caused Miss Dennis's injury in a manner that was objectively unreasonable.

[00:14:31] Speaker 03:
The district court, after a thorough reading of the third amended complaints allegations, an application of well-steadled legal principles,

[00:14:38] Speaker 03:
determined that defendant Pazin was not entitled to qualified immunity on her fourth amendment excessive force claim.

[00:14:45] Speaker 03:
Given the soundness of this analysis, affirmance of the district court's conclusion that defendant Pazin is not entitled to qualified immunity is required.

[00:14:53] Speaker 03:
And of course, mindful in this interlocutory posture that Ms.

[00:14:56] Speaker 03:
Dennis must satisfy qualified immunity's two elements.

[00:14:59] Speaker 03:
I think it's appropriate to turn to the second given the direction of a conversation with my friend.

[00:15:03] Speaker 03:
And I don't believe Fogarty and Buck can be read in a limiting way to suggest that they do not clearly establish a supervisor's conduct, particularly in this case, was not clearly established.

[00:15:13] Speaker 03:
Buck makes it quite clear, excuse me, Fogarty, that the supervisor at issue established or was detailed or engaged in detailed involvement with the mechanics of the police officer's reaction to the protest and continued to say that the district court determined he planned the police officer's response to the protest

[00:15:31] Speaker 03:
ordered certain arrests and controlled the deployment of chemical munitions and less lethal projectiles.

[00:15:36] Speaker 03:
It was on these bases, these factual bases, that Fogarty determined affirmance of the district court's conclusion, qualified immunity, its application to the supervisor there was inappropriate.

[00:15:47] Speaker 02:
Well, that it was inappropriate.

[00:15:52] Speaker 02:
Well, how does that look anything like this case?

[00:15:56] Speaker 02:
I mean, the reality is you've got Chief Payson

[00:15:59] Speaker 02:
days before this protest, issuing a general order that would allow the use of less lethal admissions.

[00:16:06] Speaker 02:
Full stop.

[00:16:07] Speaker 02:
He's not there.

[00:16:08] Speaker 02:
He's not directing traffic, as it were, as it relates to the protest that's going on.

[00:16:14] Speaker 02:
He's not ordering arrests of anybody.

[00:16:16] Speaker 02:
He just said, you can use less lethal admissions.

[00:16:20] Speaker 02:
How does that look anything like what went on in Fogarty?

[00:16:24] Speaker 03:
I think that's a well-taken question, Your Honor.

[00:16:25] Speaker 03:
And I would say that Fogarty and Buck, in two ways, first did not limit themselves to an understanding that a type of on-the-scenes involvement is necessary to overcome the assertion of qualified immunity.

[00:16:36] Speaker 03:
But I'd also say that defendant Pazin's involvement in these went far beyond suggesting at one point days before the protest that, oh, it may be necessary to exercise unreasonable force against him.

[00:16:47] Speaker 03:
As the complaint alleges in paragraphs 29 through 31, this speaks again to causation,

[00:16:51] Speaker 03:
defendant Payson was ably aware preceding the May 29th press conference that there had been complaints that the force was unlawful and used excessively against protestors.

[00:17:01] Speaker 03:
In light of this, he continued to maintain his policy authorizing precisely that force against protestors, which resulted in Ms.

[00:17:07] Speaker 03:
Dennis's injury on May 31st, which post-dated the press conference at which she alleged, and my friend alleged this, demonstrates she had no knowledge or a disinterest in suggesting that force against these protestors was required.

[00:17:18] Speaker 02:
Well, maintaining a policy

[00:17:20] Speaker 02:
of allowing less lethal force when you have delegated to incident commanders the decision on when to use that force or not.

[00:17:30] Speaker 02:
How could that be correlated with Buck and Fogarty when the supervisor was there and that supervisor, very similar to the incident commanders here, was actually making the decision on how to do it, first question.

[00:17:48] Speaker 02:
It would seem to me the thrust of what's going on on clearly established law is not the question of whether Buck and Fogarty were limited to that.

[00:17:56] Speaker 02:
It's a question of whether they gave fair warning to Chief Pazin that the scope would go beyond that.

[00:18:04] Speaker 03:
Two responses to that, First Your Honor.

[00:18:05] Speaker 03:
The first of which is that the suggestion that Defendant Pazin was fully sort of delegating his authority as infirm and misreads the complaint allegations.

[00:18:15] Speaker 03:
And most of the allegations state that he partially delegated authority to an incident commander.

[00:18:19] Speaker 03:
So I don't think that that can be read to suggest he wholly abdicated his role as an overseer of these responses.

[00:18:25] Speaker 02:
And what other role did he have based upon the third amended complaint?

[00:18:28] Speaker 02:
What did he do beyond that?

[00:18:30] Speaker 03:
The complaint alleges, paragraphs 31 and 32, that defendant Peasen was the final policymaker regarding the policies that were being administered.

[00:18:38] Speaker 03:
In addition to sort of having this broader supervisory authority,

[00:18:41] Speaker 03:
He was authorizing precisely the type of conduct and force that gave rise to Ms.

[00:18:45] Speaker 03:
Dennis's injury.

[00:18:46] Speaker 02:
Which was the use of less lethal admissions at an abstract high level.

[00:18:52] Speaker 02:
He wasn't there.

[00:18:54] Speaker 02:
He didn't direct them to shoot it at her or shoot it at a group that she was involved in.

[00:18:59] Speaker 02:
So what I'm trying to get at is what beyond the fact that he was the top of the food chain, which opposing counsel acknowledges,

[00:19:11] Speaker 02:
Beyond that, beyond the issuance of the general order, what do you have?

[00:19:15] Speaker 03:
I think that to sort of take your honor's framework as reading Fogarty and Buck not so much as establishing limiting principles, but establishing requisite notice, those cases certainly state that the authorization of less lethal munition in a way that would knowingly result in the type of injury the plaintiffs in that case suffered was sufficient to demonstrate supervisory liability and overcome the assertion of qualified immunity at that stage.

[00:19:38] Speaker 03:
So I believe as in Fogarty and Buck, there was a much more intimate knowledge of precisely the consequences that would result in an authorization

[00:19:45] Speaker 03:
rather than the simple generalized atmospheric authorization of force.

[00:19:49] Speaker 03:
And I would take my friend's point, which is to say that while it may have been lawful for defendant Pizan to have created this authorization, the thrust of our concern is what were the consequences of the administrability or administration of these policies.

[00:20:03] Speaker 03:
So the question really becomes, was the exercise of these policies or their implementation unlawful as applied to Ms.

[00:20:10] Speaker 03:
Dennis on May 31st, when in the allegations of the complaint that are well-treated,

[00:20:14] Speaker 03:
She was simply walking home from dinner with her roommates and decided to film a protest.

[00:20:19] Speaker 03:
In the opening brief, a friend states that she was not even attending the protest, she was merely aside.

[00:20:24] Speaker 03:
What that demonstrates is that she was certainly engaging in no activity that could be construed as threatening to any officer.

[00:20:31] Speaker 03:
And moreover, around allegations 31 and 32, we state that if a complaint alleges that this particular protest was wholly peaceful.

[00:20:38] Speaker 03:
So while it is possible, and certainly not something that is relevant at this stage where the complaint's allegations are taken as true, the other dates of protests which span May 30th through June 6th may themselves or later have been violent.

[00:20:50] Speaker 03:
On this particular day, at this particular time, the complaint alleges that the protest was peaceful, nonviolent, and the extent to which Ms.

[00:20:57] Speaker 03:
Dennis was involved was simply defilement.

[00:20:59] Speaker 02:
Well, even if the protest was peaceful on the specific day that Ms.

[00:21:04] Speaker 02:
Dennis was involved, if the order was a general order issued before then that just said, you can use less legal munitions, well, that would cover both days in which there was violence and days in which there wasn't violence.

[00:21:20] Speaker 02:
And so at that point, somebody's making a decision.

[00:21:23] Speaker 02:
And the person who's making a decision is the incident commander who's on the ground.

[00:21:27] Speaker 02:
And so in that sense,

[00:21:30] Speaker 02:
both in terms of, let me start with the constitutional issue.

[00:21:34] Speaker 02:
Where is the culpability mental state of Chief Payson in that situation where he issues a general order that covers both violence and nonviolence, which your plate does not negate the possibility that some of those protests were violent.

[00:21:52] Speaker 02:
When he issues that general order, where is the unconstitutional mens rea at that point?

[00:21:59] Speaker 03:
I would say two things, Your Honor.

[00:22:01] Speaker 03:
The first of which is that the authorization of force does not mean it can be indiscriminately and uncritically applied.

[00:22:07] Speaker 03:
So simply because there's an authorization to use force does not mean that its use on the night where a protest is peaceful is appropriate.

[00:22:13] Speaker 03:
It demonstrates actually the objective unreasonableness of the response to misdemeanors' participation in a protest.

[00:22:18] Speaker 03:
The second is that there are two ways to think about the state of mind, the first of which is applying Graham and working through its factors.

[00:22:25] Speaker 03:
And we believe, as we've set forth in our brief and as I'm happy to discuss, that applications of those factors lean squarely and entirely in this dentist's favor.

[00:22:32] Speaker 03:
However, if we take my friend's suggestion and operate under the legal framework, that what we're talking about is the need for these protests and the foreseeability of conduct at direct court allegations 95, which you can reiterate that the protest on this particular night was wholly peaceful.

[00:22:48] Speaker 03:
And the authorization to use force on this particular evening would actually demonstrate precisely the objective unreasonableness you can arrive at by applying my friend's framework or applying Graham.

[00:23:00] Speaker 03:
And regarding the foreseeability of these protests or the need for force, again, if we look at allegations 29-ish to 32, what we have is a knowledge on defendant Payson's part preceding the press conference that there had been complaints forced to use in prior protests was unjustifiable, unreasonable, and had resulted in injury.

[00:23:19] Speaker 03:
And I would say meaningfully, in paragraph 31, defendant Payson was

[00:23:23] Speaker 03:
conducting this press conference, quote, in response to these complaints.

[00:23:28] Speaker 03:
And so I don't think the suggestion that those allegations are not well pleaded is well taken because these ably demonstrate that there was a specific thing to which defendant Payson was responding and that his knowledge of it was full.

[00:23:39] Speaker 02:
Let me ask you this.

[00:23:40] Speaker 02:
Do you accept, well, how do you treat

[00:23:44] Speaker 02:
Or, and do you think there is a distinction between a situation in which Chief Pazin says, you can, I don't know what's gonna happen out there, guys.

[00:23:55] Speaker 02:
It could be violent or it could be nonviolent.

[00:23:57] Speaker 02:
So what I'm telling you at the beginning is if you need to, you can use less lethal munitions.

[00:24:04] Speaker 02:
Full stop, he stops.

[00:24:06] Speaker 02:
That situation and another in which Chief Pazin says expressly to them that

[00:24:13] Speaker 02:
you can use less lethal munitions on anybody that you want to use it on, including nonviolent people.

[00:24:21] Speaker 02:
Do you think there's a distinction between those two things?

[00:24:23] Speaker 03:
I do, Your Honor.

[00:24:24] Speaker 03:
And I think that what that gets at is whether an authorization that's sort of more generalized and atmospheric versus one that's a little more tailored to the facts of the case, if there's a distinction there.

[00:24:33] Speaker 03:
And I would say that there is.

[00:24:35] Speaker 03:
However, the complaint doesn't bear out that this is more in favor of a kind of general authorization

[00:24:39] Speaker 03:
and one that's more tailored.

[00:24:41] Speaker 02:
And why doesn't it do that?

[00:24:42] Speaker 02:
Because it says he authorized less lethal munitions.

[00:24:45] Speaker 02:
What else did he do?

[00:24:46] Speaker 02:
He didn't on that specific day, the complaint does not say on that specific day, he said, you can use less lethal munitions with my knowledge that the people who are out there are peaceful, right?

[00:25:00] Speaker 03:
I think that

[00:25:01] Speaker 03:
To the extent there are any questions about this complaint, reading it inferentially and drawing all entrances in Ms.

[00:25:06] Speaker 03:
Dennis' favor, what we have is a circumstance where defendant Payson was fully knowledgeable of ongoing conduct that preceded this evening that was unlawful and resulted in an objectively unreasonable

[00:25:17] Speaker 03:
uses of force against protesters.

[00:25:19] Speaker 03:
And he continued to maintain the applicability of this policy despite having knowledge of the fact that these were resulting in unlawful injuries.

[00:25:28] Speaker 02:
And that gets to my question.

[00:25:30] Speaker 02:
He continued to maintain that you could use the policy

[00:25:33] Speaker 02:
Why isn't that different than saying he continued to maintain wealth?

[00:25:39] Speaker 02:
In that scenario, it means you can continue to use the policy should the need arise.

[00:25:44] Speaker 02:
Why is that different than saying he continued to maintain that you can use the policy on anybody?

[00:25:50] Speaker 02:
I'm telling you, you can use it on peaceful, non-peaceful, you can use it.

[00:25:54] Speaker 02:
Why isn't that different?

[00:25:58] Speaker 03:
I would say, Your Honor, that I think that this kind of comes down to taking the complaint's allegations in their entirety as were authorized to under Chilcote.

[00:26:07] Speaker 03:
And it may absolutely be the case that there is a distinction there that becomes meaningful.

[00:26:11] Speaker 03:
And I would submit that that might resemble more of a fact question summary judgment stage.

[00:26:15] Speaker 03:
And as Chilcote teaches, that's not our concern analytically at this point.

[00:26:18] Speaker 03:
We're simply asking if the complaint plausibly alleges a sufficient through-line in Your Honor's words between defendant Payson's conduct and the injury that Ms.

[00:26:25] Speaker 03:
Dennis suffered.

[00:26:26] Speaker 03:
And I believe that reading the complaint in its entirety, putting aside any factual disputes that may ultimately arise that are at no moment in our analysis of the complaint at this stage.

[00:26:34] Speaker 00:
Well, counsel, don't we still have a gap between the complaint, the third amended complaint, inferences in favor of the plaintiff, all of those things that you've been arguing, and Fogarty and Buck, in the sense that in those cases where this court upheld supervisory liability

[00:26:56] Speaker 00:
It wasn't really because of a general authorization we have here.

[00:27:03] Speaker 00:
It was because the supervisors were on site specifically ordering the conduct.

[00:27:10] Speaker 00:
So even if we accept everything you said in the last couple of minutes, isn't there still a gap in terms of clearly established law for qualified immunity?

[00:27:23] Speaker 03:
I take Your Honor's point in mindful of my time.

[00:27:25] Speaker 03:
I want to answer it and then turn to the elements of supervised reliability and habit touch, which are causation and personal involvement.

[00:27:31] Speaker 03:
But I think that thinking about Fogarty and Buck requires thinking about how it is that those supervisors ultimately position themselves on the ground.

[00:27:40] Speaker 03:
And I would also like to say to the extent that there's been any suggestion that defendant Payson's authorization was simply atmospheric, I don't want to make that point or I want to refute it.

[00:27:49] Speaker 03:
I believe that he was sufficiently involved in the conduct underlying Ms.

[00:27:52] Speaker 03:
Dennis's claim.

[00:27:53] Speaker 03:
to have both been liable as a supervisor, but also to be eligible for having that violation be clearly established by what Fogarty and Buck state and contemplate.

[00:28:02] Speaker 03:
I think that reading the litany of allegations or factual findings in Fogarty that gave rise to the suggestion a supervisor was not entitled to qualified immunity, we have, for instance, planning a response to a protest,

[00:28:13] Speaker 03:
and controlling the development or deployment of munitions.

[00:28:17] Speaker 03:
And so certainly the case that defendant pays in was not only authorizing the use of force, but authorizing the use of less lethal munitions, the likes of which we see in both Fogarty and Buck.

[00:28:27] Speaker 03:
And I would also direct the court while that was in Fogarty that Buck says and contemplates that an officer was not entitled to qualified immunity where he authorized his officers to use force against protesters.

[00:28:38] Speaker 03:
And so I would say, with the remaining of my time, that this case has certainly clearly established the law upon which defendant Payson's liability may be established.

[00:28:46] Speaker 03:
In thinking about personal involvement, these policies and their implementation certainly satisfy their factor, and these injuries are these policies causing Stennis's injury.

[00:28:53] Speaker 03:
I see the amount of time, unless the panel has any further questions, I would simply ask for affirmance.

[00:28:58] Speaker 02:
Now, thank you, counsel.

[00:28:59] Speaker 02:
I appreciate your argument.

[00:29:13] Speaker 01:
So I think that we need to develop my statement that the chief pays an authorized use of force against peaceful protesters.

[00:29:21] Speaker 01:
I think I need to develop a little bit more why that's conclusory.

[00:29:25] Speaker 01:
As Your Honors know, under Rule 8, a mere possibility is not sufficient.

[00:29:29] Speaker 01:
You have to allege a plausible claim.

[00:29:33] Speaker 01:
Now, alleging that a chief of police authorized use of less lethal munitions against peaceful protesters

[00:29:42] Speaker 01:
That's implausible, but I think if we had underlying allegations showing actual widespread use of less lethal against peaceful protestors, yes, there's allegations that he was receiving complaints, but complaints do not actually equal events of excessive force.

[00:30:01] Speaker 01:
If he actually knew, if there were actually allegations there showing

[00:30:05] Speaker 01:
Yes, there was an investigation into it, an independent party, or his own investigator determined, hey, we're overdoing it here.

[00:30:11] Speaker 01:
This is improper.

[00:30:12] Speaker 01:
Something there that we can plausibly see, OK, yeah, he knew that there was actual excessive force being used, and he actually did authorize less lethal against peaceful protesters.

[00:30:26] Speaker 01:
The complaint just doesn't get us over that hurdle.

[00:30:28] Speaker 01:
And regardless, there's just too big of a gap between Fogart and Buck.

[00:30:31] Speaker 02:
So I think at your point, and your last point is that

[00:30:35] Speaker 02:
if he knew that there was a history of using less lethal munitions against peaceful protesters, the fact that he then maintained, to use your opposing counsel's point, maintained the policy of less lethal munitions would then create the connection?

[00:30:52] Speaker 02:
I think so.

[00:30:54] Speaker 02:
All right.

[00:30:54] Speaker 02:
Thank you, counsel.

[00:30:55] Speaker 02:
Thank you.

[00:30:55] Speaker 02:
The case is submitted.

[00:30:56] Speaker 02:
Appreciate your argument.