trial on september eleventh two thousand and thirteen michelle macdonald shimoda filed a federal class action suit on behalf of her client at that time naming the honorable judge david elkind then on that same day motion and the case proceeded to trial so the next day september twelfth two thousand and thirteen michelle mcdonald's from zero to appeared for trial once inside the courtroom but before any proceedings began mcdonald took a photograph of deputy gander one of the county defendants in this matter during a break the county defendants approached miss mcdonald while she was peaceably working at counsel table for the arrest was the alleged commission of a misdemeanor crime and that based on taking the photo that was based on taking the photograph which was contrary to the rules as a cour rule well that's a question of fact john that's one of the issues that we believe should have been put before the jury to make a determination as to whether or not the photo was taken actually during the proceeding only  that would still have been a legal basis for making an arrest sometimes officers make mistakes and choosing to arrest someone and a mistaken arrest is not necessarily an illegal arrest while there's a longstanding rule in minnesota and i'm sure you all are aware of this that when in a misdemeanor case they should just be a citation issue in a rest is only necessary if it's to protect the person from to protect from injury or for the commission of a crime i could be wrong but i thought if the if the mr minor was committed in the presence of the officer that they can do an arrest am i wrong about that well i didn't see that distinction your honor it's my understanding that the rule is if there's a misdemeanor committed that a citation should be issued and in this case miss mcdonald was not provided a citation at all it wasn't until she was released on september thirteenth that mysteriously a citation appeared in her property without what about minnesota statute six twenty nine point thirty four poor and one i thought it suggested that a person can be arrested for the misdemeanor if the offense behavior occurred in the presence of the arresting officer well if that's true your honor then i mean i can't dispute that but our position then would you agree that there was arguable probable cause for this officer to make the arrest based on the photo so after that miss mcdonald was arrested and kept in handcuffs and placed in solitary confinement in jails where it was everett is there anything in the record to indicate the reason for the transfer to the mail facility versus the female facility is that is there anything in the record indicate what if there was it overcrowding it was and if there was if there was any any reason for that that's what that's most telling your honor there was absolutely no reason given as to why miss mcdonald was detained for two days in an all male facility after miss mcdonald was taken to the holding area arrested her property taken and she was handcuffed to a belt that was placed around her waist she was asked some question and she did not re the county defendants claim that this is why they placed her in a wheelchair and again she was still called handcuffed to this belt and then they wheeled her back in the court room and she was forced to complete her trial w handcuffed without her glasses without her client's file and nothing that was required to adequately move forward with this trial although she was forced to complete the trial in handcuffs after she completed the is our position that it was two days it was september eleventh your honor until september thirteenth but she was released the same day as the court order to release her right which was september thirteenth scene and she was released that day yes but she was not released immediately upon instruments of the order she was released later ok so was that period of time number one do you know what that period of time was from the court order to the release and number two was that period of time sufficient to shock the conscience well that's a question for the jury your honor in our position as to whether or not that period of time shocks the conscience but the jury for qualified immunity purposes it's a question of law and so your question again your answer was your honor when the one how long was the period of time from the court order until she was released and then number two why is that position that the judge ordered mr macdonald to be immediately released released any amount of time detaining her against the order of a judge shocks the conscience case law that says that any amount of time well doesn't necessarily say any amount of time your honor but there is case law to support that support that position there's also case law that was provided by the county defendants that says that twelve hours i believe your honor did not stop the conscience first of all this like to say that miss mcdonald had never been incarcerated prior to this and that therefore this experience was absolute torture it was traumatic it was terrifying and permanently life altering so insistent on it miss mcdonald has struggled with posttraumatic stress weight loss anxiety depression and insomnia as a direct result of her arrest confinement and torment due to this baseless criminal contempt charge her husband has also suffered loss of consortium as a result of the above mentioned matters was at question appealed i didn't see any reference to the to the loss of consortium claim in the briefs in the brief your honor believe it just generally states all claims in the complaint i don't think it was  restating allegations from your complete side to us law and facts that actually occurred in this case that would indicate that this missile was ok so your honor mr mcdonald was not allowed a phone call to an attorney or to her family at any time during the two days she was detained and we are all well aware that she you are allowed to call when you are have been arrested the county defendants told her she'd not be allowed to make a call until she was booked the county defendants provided information that she was not booked but a sub simple research showed that she was booked and issued a booking id number so she should have absolutely by her constitutional right been provided a telephone call but she was refused to provide any pedigree information that normally is part of the booking process right well respectfully that's not correct your honor the county defendants in their brief and their own admission say that county defendants were aware of who miss mcdonald was they knew her name and her date of birth and that would have been sufficient in order to book her but she refused to versus ohio it was already under arrest still playing it at her refusal to answer is not a basis for arrest or argue with that the basis for the arrest was the taking of the photo correct but with them already  there hasn't been any arguing argument from the court on with respect to the court's dismissal of the claims against my clients based on prosecutorial munity but i'm going to just focus my comments on a few key issues the prosecutorial immunity analysis was pretty straightforward but essentially a balance who made two arguments against application of that doctrine to my clients number one appellants argue that for purposes of prosecutorial immunity my client's not a state actor and number two opponents argue that my clients are not entitled to that protection by virtue of the fact or according to the puppet appellants that my clients and gauged in non administrative activities so let me address those two with respect to the first argument the glaring inconsistency of course is that if my clients are not state actors and they're not subject to liability under section one hundred three or any of this court has consistently applied federal us supreme court standard on of the law or ski decision that courts examine the function and not the employment status in order to determine whether and when actors are entitled to prosecute for water immunity and under that standard there's no doubt that my clients were indeed performing the government to function and in carrying out their prosecutorial responsibilities with respect to the second  argument that is whether or not my clients were engaged in merely administrative activity i would note that the complaint is not specific about exactly what that activity was well let me suggest maybe that it it is that your client contributed to her delayed release which would be more of an administrative function by ignoring a court order for her immediate release and your honor that is in fact how the district court construed the the  i would invite the court to examine the allegations that appendix thirty through thirty six i don't necessarily agree with that characterization but are prepared to address that characterization as the court noted earlier this morning  decisions of this court have held the delayed release of up to twelve hours does not violated a clearly as you list does the record tell us the timeframe here so in the complaint does not and that's why my client is a disadvantage because it's the appellant's burden to plead sufficient facts in order to make out a case that there has been a violation a clear violation of of a known constitutional right and because we don't have those facts my client doesn't have those facts on a rule twelve basis other and that's i don't necessarily agree with that your honor because this court has at least on two occasions in the cole and the anderson decisions right so so this this case would i would argue urge the court falls within the ambit of the colon anderson cases in which this court has applied qualified immunity under analogous circumstances in those two cases city attorneys were providing services that were supplementary to their prosecutorial functions and both cases this this court affirmed that they were entitled at least qualified immunity if not absolute prosecutorial muti i've got just a few seconds left  is just simply the county defendants and i refer to the appellant as miss mcdonald and that's different than what the case caption says that's the name she uses professionally it's also the name she used in her past and current supreme court minnesota supreme court can actually state a claim and for most of those allegations the district court determined that no it was not and then with respect to the few claims that did pass that hurdle the district court with that was tasked with answering the question why did these things occur and that's really where the critical answers come in when we're talking about why miss mcdonald was arrested judge grounder you referenced minnesota statute six twenty nine point three four subdivision one the also at the time was a standing order issued by chief judge william macklin of the dakota county district court which dictated that no photography was allowed anywhere in the courtroom or courtroom areas of the fact the minnesota supreme court in this mcdonald's professional disciplined case complete rule for one general practice which has the illumining language with the maclin order that she that entered and concluded that the maclin order took a rule of situational a possibility and made it across the board so in september of two thousand and thirteen for the maclin or county case is most analogous from two thousand and fifteen in this court of course factually wise mr all rich was arrested for violating and harassment restraining order the one of the officers who participated despite that this court didn't hesitate to find that there was at least arguable probable cause for arresting him for violating the harassment restraining order because arguable probable cause isn't based on the subjective knowledge and intent of the arresting officer it's based on an object of reasonable person standard miss mcdonald challenge the efficacy of the macron order i'm not aware of any case law that is denied qualified immunity based on arguable probable cause to an officer who enforc a law that's later determined to be for whatever reason improper so that's why miss mcdonald was arrested in the first place let's talk next if we could about the lowe's men case and i wanted to briefly bring this up today because after a briefing in this case was complete the u s supreme court decided the loews men versus city of riviera beach florida case which dealt with whether it is a bar to a first amendment retaliation action this obviously is not referenced in our briefing because this case came down after briefing was complete that was the question presented in los men but it's not the question that the court chose to answer and those men certain a case that's going to be argued november twenty eighth so what was the necessity of having her come back and try the case in handcuffs without her glasses what was the necessity of that well your honor the handcuffs piece in the record bears this out it's standard protocol for arrest persons under arrest in the dakota kind of a county courthouse to be in handcuffs and to be accompanied by a deputy at all times with respect to the glasses  happen to a lawyer in the county not that any of my officers are aware of your honor it's hard to imagine a lawyer a courtroom and cuffed trying to cage it just boggles the mind it is i agree and i can tell you that none of my clients wanted this to happen the way that it did that day but they simply did their job when faced with the circumstances that they were today's decision was it to handcuff her that would be nice all the trial while she's trying the case sergeant chris melton inforced the policy of the co to count the dakota county sheriff's office which is if someone is in custody in court there in handcuffs and that's exactly what happened here with respect to the glasses and shoes your honour's the record bears out that those were removed in this bailiff station the holding area after miss mcdonald was originally detained she refused to put her shoes on and refused to put her glasses on in fact respond to questions and that also occurred during the actual trial that she was managing that there that she was litigating that day when the judge asked questions of her she just i want to talk next a little bit your honour's about this issue of citing versus arresting obviously the rule is that the fourth amendment doesn't bar rest in pretrial detention for even minor criminal offenses  claim i see my time is running short i wanted to address to address the confinement conditions claims and the appropriateness of some rigid in those clouds i will your honor thank you the i wanted to make clear at the beginning that we analyzed her confinement conditions crime strictly under the bellevue wolfish punishment standard i know there was some debate with the ingram vs county case as to whether deliberate indifference applied outside of the provision  medical care context of the fourteenth amendment for preacher all detainees we just went with the bellevue wolfish standard everything that happened to miss mcdonald was in keeping with pin a logical interest as the district court found you're if you refuse to answer medical question we can't rule out the fact that you might have a contagious disease so you're placed in a negative pressure room until your general health is cleared is there anything new record why was she taken to the mail facility versus female facility there is something in the record actually you the ramsey county workhouse were female inmates are housed in a longer term basis it does take a couple of days sometimes due to transport issues and booking issues and how busy the jail is but it's usually within a couple days that females are boarded out also she was confined for a total of twenty six hours and there was a one hour and five minute gap between when she originally went to court on september thirteenth and when she was ultimately released that's all and the police pages twelve and thirteen the other things that happened ms macdonald your honour's i will mention that you know with the smith and williams cases we're talking about for days with things like no water raw sewage no clothing those actionable here what happened to her happen for reasons and we've just briefly are in the interest of time all of our arguments articulated in our brief but i would like to point out that this case is riddled with fact issues that should have been submitted to the jury and that's why we feel that the district court erred in granting the will twelve that the defendant wanted to further the public humiliation of miss mcdonald from being arrested in front of our client in open court room being handcuffed the necessity was to further the  conspiracy that they had all engaged in to publicly humiliate her and to retaliate against her for her exercise of her first amendment right in criticizing judge can you stand and that is why all these things that are mind boggling to you your honor and things that we believe shocked the conscience your honor occurred in this case