[00:00:00] Speaker 04:
All right, our final case for argument today is 25-1050, Mr. Bonojo versus DHS.

[00:00:08] Speaker 04:
Counsel, how do I say your last name?

[00:00:10] Speaker 01:
Zakai.

[00:00:11] Speaker 04:
Mr. Zakai, please proceed.

[00:00:12] Speaker 01:
Thank you, Your Honor.

[00:00:14] Speaker 01:
Chief Judge, Your Honors, may it please the court.

[00:00:16] Speaker 01:
My name is Howard Sakai on behalf of Mr. Bonojo.

[00:00:20] Speaker 01:
We asked this court to vacate the board's decision.

[00:00:23] Speaker 01:
Our first point is that the board failed to apply the proper legal analysis for assertions of self-defense.

[00:00:31] Speaker 01:
The MSPB has stated it considers self-defense claims in the course of deciding whether the agency has proven a charge, in this case conduct on becoming or similarly some sort of assault.

[00:00:43] Speaker 01:
The question is whether the employee used only so much force as was reasonably necessary under the particular circumstances.

[00:00:53] Speaker 01:
And this court in fuller, albeit an unpublished decision, set forth a number of factors to be considered as part of that analysis.

[00:01:02] Speaker 01:
Neither the initial decision nor the final order

[00:01:05] Speaker 01:
even references self-defense with justification, let alone analyzes all of those factors set forth in fuller that goes into the analysis amount of force.

[00:01:17] Speaker 03:
What if we were to read the AJ's decision as essentially taking into account Mr. Bonojo's self-defense allegation when the AJ said,

[00:01:29] Speaker 03:
even taking his version of events into account, the AJ felt that his actions here were just not reasonable and that he should have been able to find other means to de-escalate the situation.

[00:01:46] Speaker 03:
And so let's assume for the moment that the AJ really did accept

[00:01:53] Speaker 03:
his side of the story, but just still nevertheless found the biting to be unchanged.

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

[00:02:02] Speaker 01:
Your Honor, those two references to the AJ's decision, those premises.

[00:02:08] Speaker 01:
First, biting was not a taught law enforcement technique.

[00:02:11] Speaker 01:
That's not the standard.

[00:02:12] Speaker 01:
And one of the reasons why we know that is that the agency's own use of force policy, it's in our brief at page 36, on page 4 of policy, references exigent circumstances and speaks explicitly to the fact that officers are authorized to use any available object or technique so long as it's reasonable.

[00:02:36] Speaker 01:
So the fact, the premise that biting itself is not a law enforcement technique, it cannot be dispositive.

[00:02:42] Speaker 01:
It's not necessarily unreasonable.

[00:02:45] Speaker 01:
The other point, Your Honor, that he could have used, quote, other means.

[00:02:49] Speaker 01:
That also is not the standard.

[00:02:51] Speaker 01:
There have to be other reasonable, less forceful means.

[00:02:55] Speaker 01:
And here, all those other means, at that point where that regrettable bite is inflicted,

[00:03:02] Speaker 01:
All other moods at that point had failed, right?

[00:03:05] Speaker 01:
It started with verbal demands.

[00:03:08] Speaker 01:
She's not complying.

[00:03:09] Speaker 01:
Now she's on top of him on the bed.

[00:03:11] Speaker 01:
He manages to, with his hand, make a phone call to the police.

[00:03:15] Speaker 01:
Now she's enraged.

[00:03:17] Speaker 01:
He escapes momentarily, okay?

[00:03:19] Speaker 01:
He runs to the door.

[00:03:20] Speaker 01:
She catches him, because he had to first open the door.

[00:03:23] Speaker 01:
Now she's pulling on him.

[00:03:24] Speaker 01:
Pulling on his waistband, where the firearm on his right side is fastened.

[00:03:29] Speaker 01:
And now he's really scared.

[00:03:31] Speaker 01:
OK?

[00:03:31] Speaker 04:
So she's pulling on his waistband.

[00:03:33] Speaker 04:
How then did he bite?

[00:03:34] Speaker 04:
I'd like you to literally explain to me, perhaps even reenact for me, how it is that he bit her forearm, upper bicep, when she's pulling on his waistband.

[00:03:46] Speaker 04:
Because I've been struggling to try to understand exactly how this happened.

[00:03:52] Speaker 01:
The record does not speak to that.

[00:03:54] Speaker 01:
It would be difficult for me.

[00:03:56] Speaker 01:
I could speculate that her entirety, I suspect that not both.

[00:04:03] Speaker 04:
But the record doesn't speak to it.

[00:04:05] Speaker 04:
But all of the things you just described were before the AJ when they made this decision.

[00:04:11] Speaker 04:
And the AJ said that he did not think biting her bicep was reasonable under the circumstances.

[00:04:19] Speaker 04:
And I have to decide whether there's substantial evidence in the record for that.

[00:04:22] Speaker 04:
So he pushes her onto the bed.

[00:04:26] Speaker 04:
That's in the evidence.

[00:04:28] Speaker 04:
He's able to make a phone call while that's taking place.

[00:04:35] Speaker 04:
Then he's leaving and she's

[00:04:39] Speaker 04:
I don't know.

[00:04:40] Speaker 04:
He thinks reaching for the waistband or something.

[00:04:42] Speaker 04:
But just out of curiosity, does he lean over and bite her?

[00:04:48] Speaker 04:
How does this biting occur?

[00:04:49] Speaker 04:
I am struggling.

[00:04:50] Speaker 04:
If he had said, she put me in a choke lock, and I had no choice but to get her arm off of me by biting, maybe the AJ would have said under those circumstances, biting was reasonable.

[00:05:01] Speaker 04:
But under the circumstances that he has articulated, the AJ said,

[00:05:07] Speaker 04:
I think there are a lot of other things he could have done.

[00:05:09] Speaker 04:
So I feel like the onus is on you to demonstrate why that was a reasonable exercise, because I think you have not proven to me any set of facts which makes me think that the AJ should be overturned on a question of fact, a question of reasonableness, in light of the particular nature of the altercation.

[00:05:35] Speaker 04:
I don't think the AJ said, and I don't read the AJ's opinion as saying that a police officer could never bite somebody.

[00:05:41] Speaker 04:
Like, I don't see it as a broad statement.

[00:05:44] Speaker 04:
But I see the AJ's opinion saying this was not reasonable in these circumstances.

[00:05:50] Speaker 04:
And that's a high burden for me to overturn that.

[00:05:52] Speaker 04:
So explain it.

[00:05:54] Speaker 04:
Demonstrate it.

[00:05:55] Speaker 04:
Give me something in this record that shows me why it was, in fact, not supported by substantial evidence, the conclusion that that was not reasonable.

[00:06:04] Speaker 01:
So the record does speak to the fact that it's not that the only thing that she's doing is pulling him, OK?

[00:06:12] Speaker 01:
She's grabbing him.

[00:06:14] Speaker 01:
The record doesn't say specifically in what ways, but it's pretty clear that it's not limited to just pulling on his waistband from a distance.

[00:06:21] Speaker 04:
It also doesn't say something like, the woman's a beast.

[00:06:24] Speaker 04:
This woman is 250 pounds and does CrossFit daily, and this man is small.

[00:06:29] Speaker 04:
Like, there's just nothing in this record that gives me, I mean,

[00:06:34] Speaker 04:
Biting is weird.

[00:06:36] Speaker 04:
It is not a normal police officer response.

[00:06:42] Speaker 04:
I've never had a case.

[00:06:43] Speaker 04:
I've never heard of a police officer biting someone.

[00:06:46] Speaker 04:
But, like I said, if you could establish a set of circumstances, she had him in a headlock.

[00:06:52] Speaker 04:
It was the only way.

[00:06:53] Speaker 04:
If you had put something on the record that showed, then I would say, you know, I think there is a

[00:06:59] Speaker 04:
lack of substantial evidence to support this fact finding.

[00:07:03] Speaker 04:
But you haven't introduced into this record any facts that makes a not normal defensive tactic seem reasonable to the point where there wasn't substantial evidence for a fact finder to conclude to the contrary.

[00:07:21] Speaker 01:
He does speak about being grabbed and pulled.

[00:07:23] Speaker 01:
So it wasn't just that specifically she's pulling from a distance.

[00:07:27] Speaker 01:
I think that even if she were pulling from a distance, how he got around to biting, I don't know.

[00:07:33] Speaker 04:
Her upper arm.

[00:07:35] Speaker 04:
Like, that's the other thing.

[00:07:36] Speaker 04:
Like, not the hand.

[00:07:37] Speaker 01:
Was it the bicep?

[00:07:38] Speaker 01:
Was it the shoulder?

[00:07:39] Speaker 01:
So it's probably close to the deltoid.

[00:07:42] Speaker 01:
At one point, they call it the upper arm.

[00:07:43] Speaker 01:
Another point, the shoulder.

[00:07:44] Speaker 01:
It's the upper arm.

[00:07:45] Speaker 01:
Deltoid.

[00:07:46] Speaker 01:
Probably the Deltoid.

[00:07:48] Speaker 03:
Now, it appears... Are they about the same size or...?

[00:07:51] Speaker 01:
I don't know, and that's not in the record.

[00:07:55] Speaker 01:
But if even she's pulling from a distance, then he has to go around to break free, okay?

[00:08:00] Speaker 01:
What are his other options?

[00:08:02] Speaker 01:
Is he going to strike her?

[00:08:03] Speaker 01:
That's going to use a lot more force.

[00:08:06] Speaker 01:
It might even hurt her much more than a bite that eventually went away.

[00:08:10] Speaker 01:
both regrettable.

[00:08:12] Speaker 01:
He doesn't want to throw her, he doesn't want to flip her, in that, in the exigency of the circumstances, he doesn't want her to get to the firearm, he doesn't want her to dislodge.

[00:08:23] Speaker 04:
That's what... Is there evidence in this record that she was reaching for the firearm?

[00:08:29] Speaker 01:
Yes.

[00:08:30] Speaker 01:
Not intentionally, but he said several times, 835 appendix and the pages surrounding, that he felt her pulling on the fine arm.

[00:08:41] Speaker 01:
He felt that the waistband was going to rip.

[00:08:44] Speaker 01:
That's how forceful.

[00:08:45] Speaker 04:
But he was able to push her away to make a phone call.

[00:08:49] Speaker 04:
Yeah, wow.

[00:08:52] Speaker 01:
It's clear that in the beginning, she's on top of her on the bed.

[00:08:57] Speaker 01:
I think while she's on top of him, he's able to get a phone call off with a hand.

[00:09:04] Speaker 01:
He's able to run off the bed.

[00:09:05] Speaker 01:
He gets to the door.

[00:09:07] Speaker 01:
He has to first open it.

[00:09:08] Speaker 01:
She catches up with him.

[00:09:09] Speaker 01:
That's where now she's pulling.

[00:09:11] Speaker 01:
She's more enraged than she's pulling on the waistband.

[00:09:14] Speaker 02:
And I don't want to gloss over the phone call.

[00:09:17] Speaker 02:
It's made somehow in the scrum.

[00:09:20] Speaker 02:
from the bed, but the phone call is successful in alerting law enforcement such that they dispatch multiple units to the house, right?

[00:09:27] Speaker 01:
Yes.

[00:09:28] Speaker 02:
So there has to be substantive information conveyed.

[00:09:32] Speaker 01:
So information was conveyed.

[00:09:35] Speaker 01:
He gets to the door.

[00:09:37] Speaker 01:
She's pulling.

[00:09:37] Speaker 01:
He's scared.

[00:09:38] Speaker 01:
Bites, breaks free, gets downstairs or to the front door of the house.

[00:09:43] Speaker 01:
That's just pulling on him again.

[00:09:44] Speaker 01:
It's at that point, he's on the phone again, and it just so happened that the dispatch officers were coming up, and that's when they got in and they separated them.

[00:09:53] Speaker 01:
Your Honor, if I could turn to the second point.

[00:09:56] Speaker 02:
Before you do that, counsel, I want to come back to something Judge Chin asked, because my concern, even if four is not stated, there's not a full site,

[00:10:07] Speaker 02:
Should this court require an AJA to specifically say magic words in order to survive appellate review?

[00:10:17] Speaker 02:
Under the deferential standard we have here, as the chief judge noted, when all the factors are discussed by the AJA.

[00:10:23] Speaker 01:
The factors are discussed, I don't think, especially in light of the multiple board cases that speak about whether self-defense is proven

[00:10:36] Speaker 01:
or it's part of whether the agency proves.

[00:10:38] Speaker 01:
I think it needs to be articulated.

[00:10:40] Speaker 01:
I think there needs to be a notice that, hey, he has claimed self-defense.

[00:10:47] Speaker 01:
Is this proven that he did this without justification?

[00:10:50] Speaker 01:
Were there other means that were less forceful and more reasonable?

[00:10:55] Speaker 01:
And that analysis is not there.

[00:10:56] Speaker 01:
So I do think to answer your question, that should go explicitly into the analysis.

[00:11:04] Speaker 01:
Because we're short on time, I wanted to go to the other argument with respect to the privilege against self-incrimination.

[00:11:12] Speaker 01:
I think that on one hand, when Mr. Bonojo appeared for his OPR interview regarding the incident underlying the arrest, he's given his capitalist warnings.

[00:11:23] Speaker 01:
And he readily acknowledges.

[00:11:25] Speaker 01:
I bet my wife, in a difficult situation, OK.

[00:11:28] Speaker 01:
The issue that's going on here for purposes of our appeal in juxtaposition is the agency violates its obligations under Calconas and Garrity, whereas here, the employee is, we have him in the testimony.

[00:11:42] Speaker 01:
He's required to speak to his supervisors about the details of the incident underlying the arrest in the middle of that arrest.

[00:11:50] Speaker 01:
And in the presence, even worse, marched him in the presence of those officers, and then disciplines him regarding that response to the requirement.

[00:12:00] Speaker 01:
Now, the board found that this was an official matter.

[00:12:03] Speaker 01:
So that necessarily implicates one's employment future.

[00:12:07] Speaker 01:
The agency's own policies don't differentiate the requirement to be truthful.

[00:12:12] Speaker 03:
Was this raised below to?

[00:12:15] Speaker 03:
the aging or the board?

[00:12:19] Speaker 03:
I looked at the sites, and it's not very clear to me that there was a Weingarten reference, but not Kalkines or Garrity.

[00:12:29] Speaker 01:
I know that we were not counseled below that, for sure, Kalkines, Weingarten, Garrity were all specifically referenced in the briefing below, making the point that he was not given those protections.

[00:12:43] Speaker 01:
The initial argument was, if this was not a formal investigation at all, it's not material.

[00:12:51] Speaker 01:
Therefore, he shouldn't be disciplined for anything.

[00:12:54] Speaker 01:
Well, that's the argument that I saw below.

[00:12:56] Speaker 03:
I didn't see your current argument.

[00:12:59] Speaker 01:
Well, what happened was, Your Honor, the board comes out and says, it's an official matter.

[00:13:04] Speaker 01:
Yes, my investigation is an official matter.

[00:13:07] Speaker 01:
And that has its own import and legal

[00:13:11] Speaker 01:
implications because if it's an official matter, okay, whether investigation, official matter, or official inquiry, calculus and guarantee have to be given before the response in that situation is used against him in discipline, okay?

[00:13:29] Speaker 04:
I'm not sure.

[00:13:29] Speaker 04:
I'm reading on page 35 of the appendix that when this took place, Mr. Judy was not conducting an investigation.

[00:13:38] Speaker 04:
So I don't understand your official matter thing.

[00:13:43] Speaker 04:
In two places, the board says that he uttered these statements when there was no investigation into him at the time.

[00:13:52] Speaker 04:
So I don't get that this was some official matter where they had to read him his rights.

[00:13:57] Speaker 01:
Well, but the point, Your Honor, respectfully, is that it doesn't need to be an investigation.

[00:14:02] Speaker 01:
it's an official matter.

[00:14:05] Speaker 01:
The requirement of truthfulness under the employee code of conduct speaks about official matters, official inquiries, and investigations, lumping them all in.

[00:14:15] Speaker 01:
So if it's an official matter, if his responses to that, in that, are going to be used against him, coupled with the potential for self-incrimination as we have here, that's automatic.

[00:14:28] Speaker 01:
since the police are right there talking about his arrest, then those two scenarios combined create a gallery calculus situation.

[00:14:38] Speaker 01:
Now, once they administer the warnings, I don't know if they could here given the location of the officers, but once they give him the warning, then absolutely, there is no right to lie whatsoever, OK, because the dilemma is taken away.

[00:14:51] Speaker 01:
I'm sorry.

[00:14:52] Speaker 04:
There's no right to lie, period.

[00:14:53] Speaker 01:
Yeah, where in any case is there a right to lie?

[00:14:58] Speaker 01:
There is no, so it's not the right to lie, right?

[00:15:02] Speaker 01:
Right.

[00:15:03] Speaker 03:
It's the right to remain silent.

[00:15:06] Speaker 01:
Respectfully no, Your Honor.

[00:15:07] Speaker 01:
They qualified.

[00:15:09] Speaker 01:
In Gary and Miranda's situations, those are the two.

[00:15:13] Speaker 01:
I see that my time is up.

[00:15:14] Speaker 01:
May I finish answering the question?

[00:15:17] Speaker 01:
When he already came out with its decision, it cited Miranda explicitly.

[00:15:22] Speaker 01:
And obviously, the quarter letter there in Miranda's Gestalt One Derivations here, it's where there's the dilemma of employment or self-incrimination.

[00:15:31] Speaker 01:
And it said, these are the instances where no matter what you say, they literally said explicitly, inculcatory or exculpatory,

[00:15:41] Speaker 01:
statements cannot be used without the warnings.

[00:15:44] Speaker 01:
And those are the two instances, Miranda and Garrity.

[00:15:47] Speaker 01:
So I... So these are criminal proceedings, right?

[00:15:50] Speaker 01:
No.

[00:15:50] Speaker 01:
And, Garrity, it was not about a criminal proceeding.

[00:15:53] Speaker 01:
It's talking about the inherently compelled statements, regardless of the use in a criminal case.

[00:15:59] Speaker 01:
It's about the discipline.

[00:16:00] Speaker 02:
But was this inherently compelled?

[00:16:02] Speaker 02:
The first, the first law is for a criminal.

[00:16:05] Speaker 02:
In the immediate aftermath of the domestic situation.

[00:16:09] Speaker 01:
Yes, so she even testified that he's required to report rape.

[00:16:15] Speaker 01:
Sure.

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

[00:16:16] Speaker 01:
But he volunteers.

[00:16:19] Speaker 01:
My wife bit herself.

[00:16:21] Speaker 01:
It's not clear if he volunteered.

[00:16:23] Speaker 01:
However,

[00:16:24] Speaker 01:
And he might have.

[00:16:25] Speaker 01:
The record is not clear.

[00:16:26] Speaker 01:
But if he thought, and if we have testimony at 705, that he's required to report the details of the incident, which inherently could be self-incriminating, then it doesn't matter.

[00:16:42] Speaker 01:
If she wants to give him the capitalist's gravity warnings, then that removes the issue.

[00:16:48] Speaker 04:
Thank you, Your Honor.

[00:17:12] Speaker 00:
Good morning, Your Honors.

[00:17:13] Speaker 00:
May it please the court?

[00:17:14] Speaker 00:
The board's decision in this case should be affirmed because it is supported by substantial evidence and is otherwise in accordance with the law.

[00:17:21] Speaker 00:
We have three overarching issues in this case.

[00:17:24] Speaker 00:
First, the conduct on becoming a law enforcement officer charge.

[00:17:27] Speaker 00:
Second, the lack of candor charge.

[00:17:29] Speaker 00:
And third, the reasonableness of the mitigated penalty.

[00:17:32] Speaker 00:
I will address each of these in turn.

[00:17:36] Speaker 00:
Substantial evidence supports the board's decision sustaining Mr. Bonojo's conduct on becoming a law enforcement officer charged.

[00:17:42] Speaker 00:
And I think it would be helpful to direct the court to certain areas in the record that may be helpful for the questions presented to my friend on the other side.

[00:17:52] Speaker 00:
In Mr. Bonojo's hearing testimony, he states at appendix 852 that his wife was not going for his time.

[00:18:07] Speaker 00:
And I believe there was also a question about the heights and weights of Mr. Bonojo and his wife.

[00:18:16] Speaker 00:
That is also in the record at 364 and 368.

[00:18:21] Speaker 00:
Those are police records and they indicate that Mr. Bonojo is five foot nine and 190 pounds.

[00:18:29] Speaker 00:
and that Ms.

[00:18:30] Speaker 00:
Bonojo is 5'8 and 160 pounds.

[00:18:33] Speaker 00:
So this was not a situation in which Ms.

[00:18:35] Speaker 00:
Bonojo was much larger and stronger than Mr. Bonojo.

[00:18:38] Speaker 00:
In addition, the court asked about the exact location of the bite mark.

[00:18:44] Speaker 00:
There's a photo of that in the police record as well.

[00:18:46] Speaker 00:
That's on Appendix 360, which shows the bite mark up here.

[00:18:57] Speaker 00:
And in addition, under this court's decision in O'Neill versus Department of Housing and Urban Development, that's 220 F3D 1354.

[00:19:07] Speaker 00:
At page 1364, an administrative judge need not make an explicit finding.

[00:19:17] Speaker 00:
In that case, a finding of nexus, if the finding was implicit in the administrative judge's decision.

[00:19:23] Speaker 00:
In this case, the implicit finding on self-defense is the statement that even if one accepts Mr. Bonojo's version of events, biting was not a reasonable tactic.

[00:19:38] Speaker 00:
In addition, on appendix, I'm sorry, I went a little out of order.

[00:19:43] Speaker 00:
I forgot one of my record sites for you.

[00:19:46] Speaker 00:
On appendix 872, Mr. Bonojo states that he elected to bite rather than use his hands.

[00:19:53] Speaker 00:
which would have been another means in order to defend himself.

[00:19:59] Speaker 00:
Moving on to the lack of candor charge, Mr. Bonojo's Fifth Amendment arguments are waived because he failed to raise them with sufficient specificity and clarity below.

[00:20:11] Speaker 00:
The citations in the response brief do not show otherwise.

[00:20:16] Speaker 00:
They really come in two categories.

[00:20:18] Speaker 00:
The first category would be appendix sites.

[00:20:21] Speaker 00:
686 to 93, and 901 to 908.

[00:20:25] Speaker 00:
Those are Mr. Bonojo's arguments that his statements to his supervisor were not material because they were not provided in an investigatory setting, citing Weingarten.

[00:20:36] Speaker 00:
There are no citations to Garrity or Kalkine's on those pages.

[00:20:40] Speaker 02:
Can you tell me what page that was in the J?

[00:20:45] Speaker 00:
Yes.

[00:20:45] Speaker 00:
686 to 93, and 901 to 08.

[00:20:49] Speaker 00:
And then the second category would be at Appendix Site 722 to 23, and 841 to 42.

[00:20:56] Speaker 00:
And those were questions by Mr. Bonogio's counsel below during the hearing in front of the administrative judge.

[00:21:04] Speaker 00:
And they asked whether Mr. Bonogio received any of Weingarten, Garrity, or Kalkine's warnings.

[00:21:10] Speaker 00:
And all of the follow-up questions were about whether there was an official type of inquiry, whether he received a union representative,

[00:21:19] Speaker 00:
and whether the conversation was casual.

[00:21:21] Speaker 04:
So what do we do about his argument that this did not occur during an investigation?

[00:21:26] Speaker 04:
The board made that clear.

[00:21:27] Speaker 04:
On page 33 of the opinion, I think that's where the ICE code of conduct provides for the requirement of truthfulness.

[00:21:36] Speaker 00:
Yes.

[00:21:36] Speaker 04:
And it says truthfulness in all official matters.

[00:21:40] Speaker 04:
What's the government's argument as to how this was, in fact, an official matter?

[00:21:45] Speaker 04:
Or is your argument that there is a truthfulness requirement beyond this particular provision?

[00:21:52] Speaker 00:
Our argument in this case is that there was a truthfulness requirement when speaking to a supervisor about an additional matter.

[00:21:59] Speaker 00:
I'm not aware of the agency's position on other circumstances.

[00:22:05] Speaker 04:
So are you conceding that the provision I just read on page 33, which talks about truthfulness in official matters, are you conceding that this was not an official matter and so that's not the provision that governs this case?

[00:22:21] Speaker 00:
No, our position is that this was an official matter, but it was not a formal investigation, an informal investigatory setting into Mr. Bonojo's misconduct.

[00:22:32] Speaker 00:
The ICE code of conduct.

[00:22:37] Speaker 04:
How was it an official matter?

[00:22:39] Speaker 04:
What were the circumstances that make it such that it was an official matter?

[00:22:46] Speaker 00:
The ICE code of conduct, which starts at appendix 395,

[00:22:50] Speaker 00:
provides, and the ICE code of conduct applies on and off duty.

[00:22:54] Speaker 00:
That's stated on 395.

[00:22:56] Speaker 00:
And it also states that it does not prohibit conduct protected by federal law.

[00:23:02] Speaker 00:
And then on 396, the code provides that supervisors must notify OPR of employee arrests.

[00:23:10] Speaker 00:
And on 397 and 400, it states that employees must report arrests.

[00:23:17] Speaker 00:
And in the first line,

[00:23:18] Speaker 00:
supervisor, Ms.

[00:23:20] Speaker 00:
White's hearing testimony, she explained this policy further.

[00:23:26] Speaker 00:
At Appendix 705, she explained that employees must report arrest to their first-line supervisor because the incident will need to be investigated.

[00:23:34] Speaker 00:
The pertinent information is what occurred and what is going to happen next, and the reason they need this information

[00:23:42] Speaker 00:
is that first line supervisors need to know what to do.

[00:23:44] Speaker 00:
For example, securing the weapon and reporting to a second line supervisor and to OPR.

[00:23:53] Speaker 00:
And that's on 705 to 06.

[00:23:56] Speaker 00:
And that's the reason that she was on the phone, to gather his credentials, gather his firearm, and then further proceedings into any misconduct would occur later.

[00:24:08] Speaker 04:
So what is your argument as to why she did not have an obligation to give him these, I'm just going to call them Miranda-like warnings?

[00:24:17] Speaker 00:
Even in the Miranda case, you need a custodial interrogation.

[00:24:20] Speaker 00:
So the mere fact that you're in a situation where you might say something self-incriminating is not alone sufficient.

[00:24:27] Speaker 00:
In Garrity and Kalkine's, there was a formal investigatory setting.

[00:24:31] Speaker 00:
And in addition, there are other reasons that this case is distinguishable from Garrity and Kalkine's.

[00:24:37] Speaker 00:
For example, there was no threat of losing his job for failing to speak, not expressed, and not in the policy.

[00:24:44] Speaker 00:
As I stated, the policy provides that

[00:24:48] Speaker 00:
It doesn't abridge his rights.

[00:24:53] Speaker 00:
In addition, it's distinguishable because he voluntarily chose to speak to his supervisor.

[00:24:58] Speaker 00:
And in Mr. Bonojo's hearing testimony, he describes the conversation with his supervisor at 837 to 39.

[00:25:08] Speaker 00:
And in that part, he said that his supervisor said, what happened?

[00:25:11] Speaker 00:
And then he said, what happened?

[00:25:13] Speaker 00:
The first line, supervisor asked, who was there?

[00:25:15] Speaker 00:
He responded that the police were there.

[00:25:18] Speaker 00:
She spoke to the sergeant and then told Mr. Bonojo that somebody would collect his gun and credentials.

[00:25:25] Speaker 00:
And then on 860 to 861 in the appendix, Mr. Bonojo testified that he was not asked by his first line supervisor what his arrest was for.

[00:25:35] Speaker 00:
So the exclusive purpose was not to investigate misconduct.

[00:25:41] Speaker 00:
It was to secure his firearm and initiate further proceedings.

[00:25:46] Speaker 02:
Let me ask you this, because we have this official matter issue, and that is set forth in the ICE Code of Conduct, but then this extra layer of employee protection once an investigation starts, as the chief judge called them, the Miranda-like warnings that are required.

[00:26:02] Speaker 02:
Is it the government's position that this case falls in the gray area between the two?

[00:26:08] Speaker 02:
Because I have a difficult time squaring the notion that this initial phone call is not an official matter, because it's clearly required that if you are arrested, detained, et cetera, that must be reported.

[00:26:20] Speaker 02:
But it also strikes me that the government's position as an investigation had not yet begun, because it was basically an initial intake call of information, such as you said has to be elevated to a second level supervisor of what the heck do we do with this?

[00:26:34] Speaker 01:
Yes.

[00:26:35] Speaker 02:
So I guess my question is, what should this court do, if anything, about this area that exists between official matter and official investigation?

[00:26:46] Speaker 00:
In this case, there are

[00:26:54] Speaker 00:
two sets of statements, right?

[00:26:55] Speaker 00:
The statements on the day in question, the day of the arrest, and then the statements at the follow-up interview with OPR.

[00:27:01] Speaker 00:
It is in the record that Mr. Bonojo received various warnings before his OPR investigation.

[00:27:06] Speaker 00:
That's at Appendix 286.

[00:27:09] Speaker 00:
And our position is that there's a difference between this mere intake, where he did not necessarily need to give any self-incriminating statements or necessarily any statements

[00:27:21] Speaker 00:
that would lead to his discipline, only enough so that the first line supervisor would know what to do next.

[00:27:27] Speaker 04:
And so I guess it's the government's argument that it was an official matter because a person had to go to the precinct to retrieve his gun.

[00:27:36] Speaker 04:
Like that is official.

[00:27:37] Speaker 04:
If someone has to come and retrieve the property, that's an official act.

[00:27:42] Speaker 04:
But that there was no obligation on his part to explain what happened to that individual.

[00:27:49] Speaker 00:
He did not need to explain what happened beyond that he was being arrested, for what, and where he was going to go, which he did tell his supervisor.

[00:27:58] Speaker 00:
And there were no questions.

[00:28:00] Speaker 00:
asking him about the details of the interaction between himself and his wife on that day.

[00:28:07] Speaker 00:
In addition, even if this court were to conclude that Garrity or Kalkine's wordings should have been given in that initial phone call, it wouldn't change the outcome here because there is no right to lie.

[00:28:20] Speaker 00:
And the Supreme Court has said this in LaChance versus Erickson.

[00:28:24] Speaker 00:
That's 522 US 262.

[00:28:27] Speaker 00:
It's from 1998.

[00:28:30] Speaker 00:
And in that case, the court held that the due process clause does not preclude an agency from sanctioning an employee for making false statements regarding alleged misconduct.

[00:28:39] Speaker 00:
That's on page 264.

[00:28:41] Speaker 00:
And then in an unpublished decision, this court said in Della Pena versus the MSPB 409FAPPX 332, that's from 2010, it's cited by Chance versus Erickson.

[00:28:55] Speaker 00:
And in that case, the petitioner argued that the board improperly relied on false statements coerced by threat of removal.

[00:29:03] Speaker 00:
And the court observed that the petitioner could, one, not answer, two, tell the truth, or three, lie.

[00:29:10] Speaker 00:
And that by choosing to lie, and that the threat of termination was irrelevant because the petitioner in that case chose to lie.

[00:29:19] Speaker 00:
That's on page 335 of that decision.

[00:29:22] Speaker 00:
And it should be the same conclusion here.

[00:29:25] Speaker 00:
And even in the criminal context, one could still bring a charge for perjury, even if Miranda warnings were not given.

[00:29:34] Speaker 00:
And that's stated in Melancon.

[00:29:36] Speaker 03:
I guess what you're saying is the proper thing for Mr. Bonojo to have done when asked by his supervisors what happened would be to remain silent.

[00:29:48] Speaker 03:
Yes.

[00:29:48] Speaker 03:
As opposed to lying and saying that the lady bit herself.

[00:29:53] Speaker 00:
Yes.

[00:29:55] Speaker 03:
And when it comes to Gerrity and Kalkine, they don't cover this kind of scenario where someone lies and then that lie is being used in an administrative proceeding, not a criminal proceeding.

[00:30:14] Speaker 00:
That's correct.

[00:30:17] Speaker 00:
And lastly, in terms of the reasonableness of the mitigated penalty, this was the penalty of, mitigated penalty of reinstatement to a non-law enforcement position was not clearly excessive or an abuse of discretion.

[00:30:33] Speaker 04:
Anything further?

[00:30:36] Speaker 00:
No, we respectfully request that the court affirm the board's decision.

[00:30:41] Speaker 04:
Well, we have some rebuttal time, but I'm going to just take a moment to say it's been a long time since I've seen somebody as fluid with the record as you were, so good for you.

[00:30:56] Speaker 01:
Thank you, Your Honors.

[00:30:58] Speaker 01:
Three, if I can, brief points for rebuttal.

[00:31:01] Speaker 01:
First, Appendix 852, that the wife was not going for the gun.

[00:31:06] Speaker 01:
I think that is meant, and I'll explain why in a minute, that was meant that she was not intentionally trying to get the gun to use it.

[00:31:14] Speaker 01:
If you look at Appendix 835, he states very clearly, I actually felt her pulling on my firearm.

[00:31:21] Speaker 01:
And therefore, he was scared that it was going to dislodge.

[00:31:25] Speaker 01:
at inadvertently and cause a grave harm.

[00:31:28] Speaker 01:
About with the reference of using the hands instead, if I may, I submit that using his hands could have inflicted more injury than it actually did.

[00:31:39] Speaker 01:
Probably less unorthodox, surely, but it may not have necessarily been more reasonable and probably would have used more force.

[00:31:47] Speaker 01:
The second point, there was a discussion about the setting.

[00:31:54] Speaker 01:
is settling with someone in banks, or is thrown into an inherently involuntary situation, the Supreme Court has been clear that the privilege applies regardless of the nature of the matter in which the statement is sought.

[00:32:08] Speaker 01:
That's a left groups in 1973, and then more recently in VEBA in 2022.

[00:32:14] Speaker 01:
It applies in answering official questions put to him in any proceeding, civil or criminal,

[00:32:20] Speaker 01:
formal or informal where there's a potential for self-incrimination.

[00:32:25] Speaker 01:
So it doesn't matter if we call it official matter, investigation, or official inquiry.

[00:32:31] Speaker 01:
And the correlate to that is here on the phone, it was not an intake, at least here.

[00:32:40] Speaker 01:
At appendix 705, SDDO White, the same one who was on the phone, she states, on direct examination,

[00:32:49] Speaker 01:
he was required to report the details of the incident.

[00:32:53] Speaker 01:
So that requirement, combined with the potential for self-incrimination, if he doesn't comply with that requirement, then he faces discipline for how he responds.

[00:33:05] Speaker 02:
Lastly, before we end, I would agree that he created a very difficult situation for himself to resolve.

[00:33:12] Speaker 02:
Given what?

[00:33:13] Speaker 01:
It was a dilemma which, under Garrity, and similarly under Miranda, those statements are inherently compelled.

[00:33:19] Speaker 01:
They can't be used.

[00:33:21] Speaker 01:
But Calcutta says, without the warnings, you can't use them to discipline him.

[00:33:25] Speaker 01:
And our argument is, regardless of how he responds, if I may make one quick last argument with respect to Lachance, 1998, I believe, by the Supreme Court, absolutely.

[00:33:38] Speaker 01:
The distinction is critical here.

[00:33:41] Speaker 01:
In a chance that was an investigation, there he would have been given calcunist warnings.

[00:33:48] Speaker 01:
Here, he was not given calcunist warnings.

[00:33:50] Speaker 01:
Under Miranda and Garrity, when you look at the reasons why they're inherently compelled and why you can't use them in any capacity, it's because there were normal warnings.

[00:34:00] Speaker 01:
And that's the distinction here.

[00:34:01] Speaker 01:
Thank you very much.

[00:34:03] Speaker 04:
Thank you, counsel.

[00:34:04] Speaker 04:
This case is taken under submission.