hanson that bell to one million dollars without an appropriate hearing or any theory in open court as required under penal code section twelve seventy point one violates constitutional standards with process claim or did you i would agree that i did not segregate a due process argument but i believe it is inherent in the process of determining what the appropriate amount of it without hearing so your guess  without a hearing or police complying with the statutory requirements the bail was that they think it has to be because one two seven zero point one requires that hearing for any enhancement the b reform act refers to any pretrial detention proceeding there must be extensive procedural safeguards that are employed that are to safeguard this right to have an appropriate fire not mistaken but you know somebody gets arrested on saturday night and the put on the on the police officers think well you know the bail schedule this is a serious matter and we need to have we use the phone procedure as it was a took place here to request an increase in the bail schedule i hate to plead ignorance that's to the proper protocol for an arrest in that particular scenario i can address the statutory scheme and so the only i'm just asking is the statutory scheme preclude that particular circumstance i think without a doubt start talking about the i understand your honor the reliance upon the penal code under california law is not intended to exclude analysis under federal law i believe they mirror one another i think twelve sixty nine c of the california penal code their language is almost identical to the language found in the belly form act of one nine hundred eighty four the case of the u s versus a well you know which was the first s supreme court case to interpret whether or not the reform act of one thousand nine hundred four whether or not it complied with the constitutional standards required under the eighth amendment and it looked at the stack versus boyle case and determine whether or not pretrial detention would ever be appropriate i believe the california lot at least in its statutory scheme and the cases as well very much further analogous and closely follow the federal guidelines but why is these facts right or show a violation of the eighth amendment excessive bail call belford what's successive about this excessive bail has been defined through a long line of cases as being anything above that which would require presentation of evidence and that seems to be the dominant theme here was the safety i understand that but what happens to the procedural safeguards for the arrest is it up to the law and i think that was my initial question bail is it's anything more than that is which is required for the arrestee to appear let me ask you this what should a magistrate judge take into account in determining whether or not to increase the bail the presumptive bail any prior convictions whether or not there are public safety concerns separate and apart from any threats and the likelihood of this particular arrest be appearing at the next hearing or for t what happened here that is however is the one million dollars excessive going back to the statutory scheme the presumptive amount of fifty thousand dollars must be used unless there is a hearing and the amount of one million dollars which requires a much greater amount for a premium to bond out on that particular one million dollar bill becomes more like a p dollars there's no way you're going to make bail so we're going to set it at five hundred dollars you know we're going to we're going to do everything we can and they said well that was up in those circumstances that was excessive was that was that what you're condemning happened here wealthy attorney named been known to that particular police officers i don't know that's not on the record but is there any evidence in the record that shows one way or the other that barrier and heinrich had any knowledge whatsoever  upon a number of criteria such as the house that he lived in the fact that he was a lawyer the fact that it she knew the neighborhood that he lived in but further than that i don't believe that anybody did any sort of background financial check recklessly disregarded that that demonstrates the intent necessary to satisfy the excessive bail finding moreover i think there is evidence in the record which the district court decided to the case of the action in this much is the representation which was a direct misrepresentation that the injuries required medical treatment for one number two the probable cause declaration which was the  guess that the injury required medical treatment and that was there for several months to contemplate with the you know by the time he was deposed on this it was many many months after the incident happened so there was ample opportunity to reflect upon how to explain that away but the reality is that there was some sort of representation made otherwise we have to presume  the excessive bail clause imposes upon the california court having set of bail schedule to adhere to that bail schedule over the weekend where court proceedings are not available and puts the burden on the prosecution to come into court on monday morning when courts are in session and seek an increase in bail to make the peace bond aspects of the statute bearing in mind the common law there was a sharp distinction between a failed on to assure appearance and a peace bond to assure that the person would keep the peace during the pendency of the case it is your position that the yes it is and i'd like to just amplify on that if i might there is a process by which pretrial detention would be appropriate for certain numerated violations as well as certain situations where the arrest be present certain articulable dangers and risks to the community i believe that if we leave it to the law enforcement agency to determine and in any unilateral fashion with the appropriate amount of they'll civilian allow them to deviate from the bell schedule that's been set forth whenever they determine based upon the facts that they've marshaled together whatever's influencing that particular decision to arrest  dissatisfied with the bail alternately set by the commissioner does he or she have a speedy appellate or review remedy in the state courts there is a bit of review hearing available under twelve sixty nine c of the california penal code however i wouldn't call it a speedy remedy because in mr gammons case it was four o'clock on a friday afternoon and he would have spent the weekend at one of the luxuries downtown lockup facilities with the general population until monday morning before he would have been able to avail himself of that opportunity to see a magistrate about getting up his bail reduced from one million dollars quite sure procedure that i've observed through this case that it was not available to him on an urgent basis that it wasn't a question of getting a lawyer in and finding a magistrate at four thirty on a friday afternoon who would listen or who would rebuttal i just said you know there was a it in the file a form i guess reflected the note taking of the assistant in the bill commissioner's office right and it's very difficult to read but at least when i worked my way through it it doesn't seem to be any mention in here of her injuries just that she was in fear for her safety does that suggest that the commissioner it really didn't rely on checking the injury where box i mean it seems to be what was related to the commissioner that we don't know that's the speculation and that's what one of my main arguments here as far as what happened to mr galen that's done but for future are subjected to similar procedures in the future should they be left to the court should they be left with the only remedy that courts will one day speculate as to what was done in contemplating what the appropriate amount of bell was for them because i believe the statutes clear it requires a hearing ok thank you i'd like to reserve the three minutes i do have left form there are phone numbers supplied six am to midnight one can make a call to request a reduction of bail or oh are released we know that mr galen how does that work if job to act as the go between by taking these phone calls going to the bell commissioner here commissioner filer and relating whatever it is they're going to relate we don't have that in the record he's on duty for the weekend i'm sorry nine which says there has to be a declaration provided in this case we know that there was a probable cause declaration was faxed by deputy heinrich to the bill deviation unit which set forth a series of facts that bill deviation form the check the box in the record that never ever went to the bill commissioner council can talk all day about misrepresentations falsehoods and the like that never got there that is established in the record it was not relied  to indicate that they have discussed with the arrest the his right to request a bail reduction how to do it and make notations about the off the arresting deput advised he knew he could have requested to be a reduction but you know you talk about the statute well seventy point one so let me ask you this so that your argument that the fact that he had available to him the ability to call the no ability to do anything or to get the hearing which they're claiming that i think should be had right now the other point is this due process argument is out the window mr grubman was not at the argument on the summary judgment motion but if you look in the transcript this was addressed by judge fisher and it was it was essentially waived and the question was asked are you saying that you know even if you violate a state law does that give you action are state employees on the question of reasonable for purposes of qualified immunity and other words if it's a state official knowingly violates state law and the effect is to deny someone a procedural rights could not that person then argue that the deviating state employee was not entitled to qualified immunity because he acted contrary to existing state law question reasonable or well first of all that would go to the due process angle but second of all in this instance and i think we have to read  judge fisher's order and also the reporter's transcript carefully she made several references to you know i'm not going to take my personal experience into this i'm just going to say plaintiff you have not made you showing you need to get over this the fact is i think the judicial notice is appropriate here judge fisher spent years as an arraignment judge and was very familiar with issues the point of the matter is to answer your question joe singleton that the operation by which these bill requests for reduction and hanson are done is done in line with the jail manual it's done in line with the county courts and commissioner filer doing his job necessarily be inconsistent because it doesn't prohibit this kind of a modification of procedure and the fact is the information is taken to a judicial officer it's the judicial officer makes the decision b facts right off superior the watch commander agreed with the arrest and deputy specifically the senior deputy deputy bowers with who's the training officer for two months training at the height that the bill should be increased because she knew a lot about the background she understood mr galen's propensities she'd spoken extensively well before this arrest of ms jacobs she saw the photographs she read the report and so forth and she said yes i agree have a good idea to request somewhat unclear but to say with ten million be too much i guess for bill gates no the point being we have to consider we have to consider the safety of the public and the safety of the victim foremost and if this slowed mr galen down four hours as it did from that fifty thousand dollars bail which he you know it's kind of a joke in this case it slowed him down a little bit and that's also know that practically his first stop was to go see his jacobs and who pose upon her to not cooperate with the prosecution so that she would we can't all of these she said which she later came back as we know because you students here declaration threaten to kill her if she ever took another photograph of her injuries and lots of other physical and psychological injury so the limiting principle that i gather you're to say well you know in future cases you know this might be so i think i can give you those principles from what i know from this case and i don't i don't know and i go out rather than the skills of the case upon which we can announce a rule about what would be excessive except in the context of this case however here's our guidance article one section twelve of the california constitution enumerates a series of factors which much must be considered is how does that stack up with the phrase excessive bail and some point we've got to take our common sense understanding of what success and i'm joking around about will bill gates doesn't care if it's ten million but the point being that a common sense notion of what's excessive cannot be translated into an exact numerical ratio it has to come as a result of considering things and the problem in this case and we can't  phrasing your opponent's argument and judicial paraphrases are always wrong at the risk of paraphrasing his argument he seems to be weaseling is falls the officers in this case that would keep mr galen in jail they worked the exact amount was insignificant so long as it was greater than he could meet that was their intent and there is some evidence in the record to suggest schedule and significantly higher than the officers themselves had ever heard of being set in a similar case if their intent communicated to the to the commissioner which is an existing us supreme court decision and we can take constructive notice that wherever we can find that all police officers should have constructive notice of decisions of the u s supreme court why isn't that a prim why isn't that enough to go to i understand the paraphrase and the view that even if there's an independent decision maker if the defendant influences that decision that's enough to hold him or her in a one thousand eat three case and here's your answer the crawford l crawford dash he l case says subjective intent is irrelevant for purposes of the qualified immunity test instead we have to ask we have to invoke the second prong of societe that judge fisher and she said you know and i'm paraphrasing her lawyers you take some guy who's not going around his wife or girlfriend he doesn't have a job he doesn't have any assets he gets roped in for that know proper procedure and so forth and then you take mr galen who's all ready to go and happy about it you know i can make fifty thousand dollars no sweat and it ends up inconvenienced for a few more hours and  certainly impede his making bail obviously if it were an effort designed to make bail unconstitutionally if sestak in terms of him getting out fairly rapidly it was markedly unsuccessful and that i think is the point of what is excessive and it seems to me and this is mine alice was i don't think i've got a case on point that having distilled the cases i think that if excessive bail as a pretext result in de facto detention now under salerno in the one nine hundred eighty four bail act you would have constitutionally excessive bail however there his so little guidance in the case law we know at least in the california cases they say well a million dollars bail instead of one hundred thousand dollars posted bail we don't know why the judge said there's this is in remission airy and so we're going to send it back down and let the trial court explain the reasons why so there 's no rejection of a tender one ratio here we have a twenty one ratio and the fact remains that it was not excessive in terms of resulting in detention as a pretext there was not detention you w to tension they can hold on the whole doggone we have to leave if the constitutional right exists but under existing law is so confusing that no one understands it isn't it the burden of the appellate court to take it and handed provide guidance that would be very helpful i'm just not so sure that this is the case and this is the record which allows us to do that or i want to come in here give any reason do we know anything else about what was told to the bail commissioner bar what factors the bail commissioner took into consideration we know absolutely nothing about that it's  the information but by the police officers for them to be held liable under section one hundred three has to be deliberately or recklessly thoughts information and if this is all that we have and record sorry and you know she said well the case wasn't frivolous filing of the case wasn't frivolous the initial filing wasn't frivolous but you know  when you filed a motion for summary judgment he should have realized that the officers were entitled to qualified immunity now you know we have that where the law is not is there the laws debatable the law is not certain that those cases are not should not be treated as they were deemed lacking in isn't that i find it very troubling well i think i can allay those troublesome thoughts because if the law was not clear that means it was not clear to deputy heinrich and  barrier that means he had no case in the first place and that's so well i think these cases you're talking about do not go to the question just anybody just means that the officers are immune from liability which is the reason why the case should not have been brought well but she determined that the case was brot it had merit she wasn't prepared to say that with the initial filing in the case that it lacked any merit and the discussion here indicates that it that there  reasonable jurist could disagree about whether or not there was merit to initial filing of the case and even the judge fisher says that the initial filing cannot be treated as non married towards the only word attorney's fees for having to force you to file a motion for summary judgment and basically what she says is you should have known that i was going to grant qualified immunity should've dismissed decades and folded up the stand on home well that's right and you know i didn't file across appeal from that that's that's in judge fisher's discretion she can say hey i'm going to find a cut off point here and our case law on the ninth circuit is if you maintain a suit once a month you know it's become without merit then you've got to drop it or face the consequences and that's exactly what she decided i'm not going to take issue with her exercise of discretion she made that call and i'll live with it but there's no doubt in this record and on these facts that plaintiff did not have the requisite element of causation did not have that you know that's even that's the big animal because it would because for quote for purposes of determining the first prong you take all the facts in light most favorable to him and you could look at read on that form is the figure one million dollars i don't let me try to explain it in terms of this case what was alleged all along is that live billing is premised on misrepresentations and has presented to the bill commissioner that is played of scase the factual proof of that was the bail deviation unit were deputy heinrich checked the box offense likely to continue  and victim requires medical attention it was the theory that this got presented to the bill commissioner as the facts were developed it was established that those misrepresentations never got to the field commissioner in midstream it's another when the switch words and then go back in the opposite direction and i'm talking about saying in summary judgment this is a clearly established right in saying the purpose of the journey i make a new lawyer there amount it ever wanted without any scrutiny if it just dispensed with this whole procedure of having any sort of hearing on the record which we did hear by that's that that is part of the problem i think that you didn't really raise that part of the experience i understand that you know but what about the requirement under the statute that says the reasons for the modification or the enhancement in the bell must be stated on the record obviously when the supreme court visited this issue appeared to rely on extensively doesn't even apply in this particular situation because that only applies when it is pertaining to reducing or denying bell has nothing never mentions in at hearing presumably that the bill had already been increased the damage is already done the violation is already occurred based upon what the officers  communicating that to the commissioner via teletype or telephone at noontime or prior to noon before mr gannon was even apprised of the fact that they were seeking enhancement of the bell so the information relied upon by the bell commissioner and and hanson the bell that was done long before mr galen was even apprised of his rights in this particular issue i see that my time is up i don't want to