good morning runners if it please the court my name is william carroll i represent defendant and appellant in this case mitchell saliva former chief of police at the university of california berkeley with the court's permission i'd like to reserve three minutes for rebuttal  watch your time as you your honor the district court erred in denying chiefs elia summary judgment on his qualified immunity defense because plaintiffs failed to do so specific non conclusory facts showing that he acted with retaliatory motive in deciding to transport sixty six arrestees from wheeler hall to santa rita jail for processing booking citation and release now this respect to the four name plate that is correct your honor he said that the other not the other sixty two at the moment they are not additional ok and so don't we take the facts in the light most favorable to those plaintiff and if we do us with a denial of qualified immunity if we read the facts in favor of the blanket ok so in terms of qualified immunity the district court said that there were material issues the fact that's that prevented a determination of whether there is sufficient evidence of motive ok so let's assume that we do have that your stiction why i think what your drawings and i was asking at least what i want to ask is why isn't there a dispute of fact in this case as to whether or not your client had a retaliatory motive there are there are a number of e mails which are in the record there's at least as to three of the point plaintiffs a departure from the policy that had been put in place before as of the fourth when it appears to follow the policy and there is some evidence that he played a hand in changing the policy relatively late on in the in the process we put almost together could a reasonable juror infer from that that your client had a retaliatory as the specificity requirement but there are still very specific e mails here i mean it's not that they say i heard he sent an email we have copies of the e mails we have we have the chronology which is not disputed about how the policies were put together and then later not followed with respect to three of the plaintiffs so there are particular facts my question is why aren't those particular facts enough for us to infer and it would tell you tory motive the short answer is because there are those specific facts do not give rise to any reasonable inference of retaliation in the context that we're dealing with here one on one up ok that could be a long answer your honor but it's a central question in this case  indeed so the evidence that has been tendered of retaliatory motive basically consists of three emails and then what we did was a fairly pale attempt to impugn chiefs allies credibility in terms we have to view the evidence in the light most favorable to the plaintiffs in this case and therefore his explanation may or may not be believed on that we're not here to do credibility on his explanation we're here to look at the facts that they have to see whether they suggest or territory mode and it is clear that that credibility inquiry to the extent that it's relevant and we don't argue that it's irrelevant but it is clear that under the supreme court's decision in crawford elvie britain as  and as referenced in subsequent cases in this circuit that the that that an attack on credibility in itself cannot be sure to fill that burden we see it as being of marginal relevance and we and we have some i think very specific points we want to raise about why the attacks on credibility are ultimately futile but putting those to one side we are talking about three emails and an argument that she's alive failed to make every effort to transport the arrestees to santa rita the but these occur in a context to your honor and i and i and i want to make clear what that context is it is undisputed that  approved a operational plan on thursday night and this is after three full days four full days of an occupation where as the district court concluded there was an arc of tolerance during this entire period on the part of  and the crisis management team on campus so what we have here is a decision by the campus supported by chiefs elia to allow the protesters to fully occupy wheeler hall during the time period when we were hall was open and that period then culminates on wednesday when there's a now there's an announcement that a all my concert is going to be held inside wheeler hall on the eve of finals which are to begin on saturday morning at eight am that's the context here wasn't there evidence that they were allowed to occupy the building even after the closing bell that issue was resolved by the district court it goes to the question of permission and license that was an inquiry on the fourth amendment claim the district court ultimately concluded that there was no permission properly concluded that there was no permission and that therefore there was probable cause to support the within the plans description of transporting that's that's correct your honor so the question is what happened between thursday night when the a plan was adopted and i'm talking about the three plaintiffs who were part of the larger group who were transport buses what happened between thursday night and friday were chiefs the last suddenly developed this retaliatory motive and decided to ship off the arrestees to santa rita there is no answer to that question and there is no evidence in the record to subdue him or have to you see that's that's what troubles me about about your position we don't have to conclude that the motive was suddenly arrived at between thursday and friday we can look at the record and see whether or not the sufficient evidence to support an inference that he never intended to follow the plan or that it was that he had a retaliatory motive and at the end of the day he departed from the plan because of it why does he have to develop the motive between thursday night and friday that remain to be rethought before the issue of qualified immunity can be arrived there has to be something to fill that evidentiary void and the only thing the plaintiffs point to are yeah three e mails which i would like to address and again think they actually undercut the notion that chiefs elia had a problem with the political message of the protest the content of the speech that the plaintiffs argue prompted the retaliation here so if we look at the first e mail it's it was sent at the at the first day of the occupation and and is responding to a professor who's expressing a concern saying essentially that look i heard that you were shutting down open to use a lie this is an important e mail i think because she's a lie is in this e mail he acknowledges the legitimacy of what the protesters are doing he acknowledges that we are not trying to shut down open university he's acknowledging that yes we are allowing these people to occupy wheeler hall the largest classroom building in campus who had no authorization to come in and open their open university we are going to allow that and he goes on to say that it is appropriate to engage in education and teach in as part of open university during the hours that it is opened now he raises some question about what is what about whether people will adhere to those hours and he gets into some consequences about what might happen if they do not get here to be open hours and they start to trespass well there is nothing retaliatory about expressing concern about breaking the rules and breaking the law so we have here two things in this e mail she said affirming that in his view it was appropriate to engage in these education and teaching activities which are the political message here and i know you're running out of time here and i'd like to hear you address the final e mail in the in the chain the one that says i guess now they will be able to get back to rallies ok so that seems to me the to be the most damning maybe it's not and i know you were learning about tom and i want you want you to address it yes honor thank you for that question you're so this is the e mail that occurred after the operation syria not at all provides no no no evidence whatsoever of his motive in bringing them there well he at the time that he made the decision to transport them he didn't know there was going to be a rally that was planned wheeler hall at noon that's number one number two if he wanted that the premise of the argument itself is is highly questionable because there he was the decision was to send these folks to santa rita not to you know not halfway across the country they were going to be there for a few hours they were going to be able to come back and participate in any protest that they wanted to so it's simply implausible to suggest that that was the motivation crowd control he's expressing in this we are staffing this to monitor the rally we don't know how many people there are there may be more coming we don't know how many officers it's going to take the good news is we're going to have fewer people who are going to be i good morning may it please the court my name is dan segal i represent the pelleas in this matter counsel for chiefs a liar appears to be making a final argument to the jury he is attempting to persuade the court of the merits of his client's position and in doing so he addresses the evidence that demonstrates his client's liability it's very clear that jeffers v gomez has not created a rule whereby the court this court will review factual decisions made in the context of denying qualified immunity on summary judgment i would submit to the court that the jeffers decision is not a complete model of clarity but what it says is that where an issue in the qualified immunity determination is the intent of the state actor and where there is no evidence and that's a quote of jeffers if there is no evidence to demonstrate to focus on the lead plaintiff ms made off she's in a as a district court recognized facts of her case are different than the other three correct the university did not depart from the operation of the special policy whenever you call the last the last thing in the chain the policy that they came up with respect to her she was booked because she had a prior incident she was booked at the santa rita station the other three should not have been under the policy  what so what do you contend was the retaliate when the retaliatory action with respect to her well your honor service transported in accordance with state law state law surely allowed her to be well i've read the california statute you don't have to not held someplace in the meantime tell me tell me why this why there's enough evidence to go to the jury under a tally issue as to her not everybody else but is there your honor i believe that all of the evidence regarding chiefs a lie is discriminatory intent except for his last minute decision to violate the agreement that had been imposed by the crisis management team the preceding evening applies to white officers but let's go backwards that if you can if you cut it off at the time that the plan is adopted for a second because he complies with the plan thereafter what's the evidence that the plan was put together as a retaliatory  when i look at the evidence it it says as to some of these folks who've been apprehended before we don't know when they violated their terms or we'd like to book them in accordance with california law at the station if people are first time offenders would use taking them at the s why is that a retaliatory plan because it singles out individuals for harsher treatment because of their prior first amendment activity that's a that's it doesn't a single amount because of enough people to center it so your client whoever else is here your client had a prior arrest a particular prior arrest that's that's the distinction i'm trying to make here the issue was not whether they arrested protestor had a prior arrest the issue that allowed or justified this crisis management team in making the distinction that you're pointing out was whether any of the individuals arrested on december eleventh had also been arrested november twentieth i understand your point let me tell you what troubles me and maybe you can help me with it ok as to miss made off your argument is this was a discriminatory plan to rest of the other three people your argument is they didn't comply with the plan  part right because they they were transported in a plane didn't call for them to be transported can you have it both ways yes ok so not not not complying with a plan that's discriminatory is itself discriminatory if i can try identified the we claim that the evidence of his discriminatory intent consisted of his disregard of the policy underlying the penal code section on site and release i mean i understand that the that section did not strictly require what i think it was in fact it says the the resting officer has the discretion to cite at the scene or book at the station house it says that's right so requirement and i'm not saying that failing to cite and release violates the penal code what i'm saying is failing to cite and release violates the spirit of the penal code that section and the university of california policy both express a preference for sight and release versus longer determination and and just as a footnote to that point your honor taking to the jail at santa rita is not the equivalent of sighting and releasing at the station house the station house at the university of california is in the basement of sproul hall santa rita is a county jail thirty or so miles away it's not a station house it was isn't it isn't this this is the chief of police is called this is in his prime and the law explicitly gives him the option and how can we sanction him for  contend going back at least forty years is that even when probable cause for an arrest exists a police officer is choice to make an arrest or to handle an arrestee in a certain manner may be a violation of the first amendment if it can be established that that choice was influenced not by legitimate law enforcement concerns but by the state actors antipathy towards the first amendment  speech and that's what we think occurred here and that's why we think that the chiefs prior for statements demonstrate intent and but with what happens when there's a mixed motive let's are in a somewhat of a state of flux in this area require the plaintiffs to prove that the decision was based upon a the substantial cause of the decision was the retaliation or even a but for cause and so the ultimate finder of fact in this case is going to have to decide whether chief's elia made the decision for the types of reasons that you outlined in your question or whether he made it for retaliatory reasons let's put let's go back to comparison here if the if you were if you were advising chiefs on the afternoon before the students were arrested about whether he could transport people with prior arrests to santa rita but ticket other people on the scene what would you tell him it seems to me you would say you can't do that because that would be discriminatory that's the that's the crux of your mate off case is it not correct so he says ok i won't do that i'll take everybody because i can't i'm not allowed i'm not allowed to single out those who have spoken before so i will just take everybody in comply with california law on them and i'll stay out of trouble what's wrong with that well what's wrong with that is the chiefs a law is not an independent actor he's not the police chief of berkeley or oakland or the head of the highway patrol he is an employee of the university of california which has decided to appoint a crisis management team which concluded which presents him under your scenario with an unconstitutional plan right because if you take the prior arrestees to jail it violates the constitution and so what if he correctly in your view and afghan says i can't do that i don't want to book everybody here so i'll book everybody there what's wrong with that one thing is the record is devoid of what conversation i understand in that team the end result is to come up with a plan to treat everybody the same and so it's a little bit strange for you to say no no we want to play and it treats people differently because that's the one we want to comply with but i'm going to make a claim against him for treating somebody differently if i were a member of the crisis management team which i think you're as inviting me to sure play that role i would say look we had a demonstration here two weeks ago on november twenty we were afraid that things would get out of hand when we arrested the people occupying the building what we decided and what we did was to site and release everyone in the basement of the building they left after being cited and released and everything was peaceful so that seemed to be a good plan so i think we should do the same thing here where despite the fact that there was this occupation of the building for four or five days the students and others were peaceful they were respectful they cleaned up after themselves they went out of their way to avoid any place but they still looked at new you're not contesting that they should limit arrested are sighted are you  police officers were entitled to cite your clients no matter how respectful and nice they've been beforehand and the question is where they book on that silly question what i was i thought i was responding to a different question as to what plan i would have advocated as a university official participated in the crisis management team i would have said given our experience only two weeks ago and given the evidence which does not show a propensity on the part of this group of protesters to do anything untoward i think we should simply do we did two weeks ago cite and release all of them maybe someone else argued well we have these recidivists who are overly inclined to occupy campus buildings so that's how the first amendment protects well your honor i think it's clear in the law that engaging in acts of civil disobedience is protected by the first amendment the fact that it's protected by the first amendment doesn't mean that the individuals cannot be subjected to arrest the rather sanctions for their free speech activity or what they were being sanctions they were being imposed in effect for violating the campus rule about remaining in a building not for their first amendment activity nobody who stood outside the hall and shouted whatever slogan was punished it's only the people found inside the hall in violation of campus rules right correct i liken this to the civil rights movement when people sat in that much  because they weren't served due to the color of their skin and they of course were arrested but there was no question but that they were exercising their first amendment rights to protest and can't think again should have how do we square those concepts well first of all your honor i think that your analogy is completely correct and that individuals who as i did sat in at lunch counters and other places did so with the understanding that we would be arrested however and this may be relevant to judge her with his question about miss made off if at the arrest at the lunch counter in greensboro north carolina martin luther king was there and everyone was arrested and cited out but they sent martin luther king to the state penitentiary i think he would have had a claim for being treated in a disparate manner because of his history and reputation for engaging in similar conduct in the past and i think you judge her which i think that's an answer to your question about this made of so many points and so little time first with respects to judge parker's question about mixed motives lost pretty clear here but for that is he could have had a range of motives but the retaliation has to have actually prompted his decision to transport there's no constitutional violation with regard to mr siegel's point there the law i think on this point is  clear breaking the law is not a protected first amendment expression so we cited cases in the brief that clearly acknowledge that that that the that the trespass itself here is not in a protected expression under the first amendment so the the protected activity that's issue at issue here is the lawful expression of concerns about budget that was mixed mixed signals given by the administration in this case the student there were negotiations then the students were allowed to stay in the hall and then abruptly they were removed how  analysis very little i think your honor i mean if the the court the district court properly considered that evidence and concluded properly that there was no permission there was no license the fact that disbursement orders were given each and was was was participating in here again with the just a core called an arc of tolerance they were trying to allow the the occupation to play itself out so that's what i call a mixed message if it's a tie it is tolerance your honor but they want to make absolutely sure that everyone understood they were there was no permission to to to do it twenty four seven how do you say there is no commission but you allow them to stay that's that's the difficulty i'm having with if you're telling the students  have to leave and they don't leave and nothing is done how is that giving them the message that they don't have permission to stay because you have uniformed police officers come in and and tell them in various locations throughout the building you are not authorized to be here you are in violation of student conduct rules you are in violation of the law but that seems pretty clear to me you're right but we're not going to going to remove you taking action yet as long as you maintain the rules of engagement as it were which ended as of wednesday with the announcement of the consulate couldn't a reasonable jury look at that course of conduct and think that they were engaging in protective activity because they were allowed to stay the there there were certainly aspects that we don't argue that there was no protected speech occurring here your honor what we're arguing is that she's a lie had no problem with the lawful expression of the there's no evidence the chiefs elia had any problem with the occupiers goals of budget cutting protesting the budget cuts that's what we're arguing