good morning your honour's my name is here in behalf of appellant steven turner you know if you could hold the microphone down a little closer and speak up for those of us who are hard of hearing and i want don't talk about my fellow judges but i am  it please the court i would like to reserve three minutes for rebuttal ok mr turner believes that the district court erred in granting summary judgment to defendants and dismissing his claims specifically mr turner believes that first the district court sue a spontaneous terminations that defendants were entitled to absolute immunity is erroneous second the district court erroneous lee found that defendants execution of parole conditions did not violate mr turner's right to marry and associate with his fiance and third the district court erred in finding that there was no genuine dispute of a material fact as to whether defendant's took the telly atory action against mr turner when they arrested him and the summary judgment should have been denied as a matter of law defendants are not entitled to absolute immunity contrary to what the district court found parole officers are not entitled to absolute immunity when they are performing i thought the law was that when they're creating the parole condition it's quasi judicial and they have absolute immunity when they're enforcing it it's not quasi judicial and they don't have absolute immunity am i wrong on that and if so could you tell me which i thought look at that is correct your honor when they are the this circuit has found that when parole officers are immunity looks like what the parole officer did is she decided well yeah guy wants to associate with his fiance fiance has a daughter not this fellow's daughter not on the other hand he has the indecent exposure is with girls of similar age and this girl's intitled to grow up without somebody indecently exposing themselves to her and there's too much risk here so i'm going to impose a condition that will keep him away from the op target would be to keep the daughter away from the mother which would be an extreme destruction of a family that isn't involved in any parole system we would argue that the court this circuit in now decided that when all officers are imposing conditions that potentially affect a constitutional right such is the right to marry in the right so she with your fiance they have to go through a set of conditions and way whether the penal logical or rehabilitative goal  is in line with the condition that they're setting and whether or not the public safety will be affected by the condition that they're setting as well and so in this case there was a less restrictive means available they could have allowed mr turner to see his fiance they could have met in neutral places they did not have to he could have stayed still stayed away from her daughter they could have been separate they didn't have to live together but they still could have been allowed to communicate what i'm trying to figure out whether this is creation of a whole parole condition or enforcement of a whole condition at the time that the processor is confronted with this decision whether to allow him to have whatever sort of contact or visitation or what were what were the written conditions of parole that the officer was enforcing so at the time there was a there is when he first was released on parole he was not barred from communicating with his fiance and then a few weeks later they decided for whatever reason to include this they lose they the it's unclear so that it was the supervisor was defendant bent and then the parole officer was melody smith and so in in the motion for summary judgment there's an end and it's mostly for summary judgment there's an affidavit or a declaration by ms smith saying that she went through these  conditions and decided to impose this so it's unclear whether she was acting in a supervisory role or whether she was it's unclear why she was imposing this condition ordinarily apply to a lawsuit for money damages but not to a test of whether a condition is appropriate so i would think that napoli would be distinguishable on that basis what am i missing here we're just at the time that this lawsuit was filed mr turner was still on parole and so he the solution at that time would have been  to remove the restriction let's say hypothetically that the restriction was wrong and it should not have been imposed under an apple who and what was a wolf trial but i think that let's just i'm not saying he's not suing to get the condition lifted he's suing for money damages because it had been imposed and neither nappa luna wolf child involve money damages and it strikes me that in both napa lou and wolf trial had the parole officer been sued for money damages they would have raised an immunity defense but no such issue was considered in either case that is correct your honor in both cases the defendants were still in custody when they raised these issues similar to mr turner he was still on parole when he initially raise this issue and this is actually the fifth amended complaint so his original complaint was asking at these restrictions be lifted and then at this point it became because the restrictions were no longer put the ball became money  qualified not absolute immunity would apply i wouldn't she have qualified immunity so we would argue that she did not have qualified immunity because the law established at the time the condition was imposed  was that you had to go through an analysis and have evidence on the record that would that would support a finding to napa and with travel already down there they'd already been handed down when the conditions imposed napal who had child had not and prior to annapolis to be there was already a decision that parolees were allowed to marry and that you know the constitutional right of marriage had already been solidified by the courts as well looked at his she got for some reason wanted to look at his past charges which were for from twenty years ago so he was on parole in two thousand and ten and his last instance of indecent exposure which involved an elderly person  medicine without a license so she took it upon herself to enhance and provide a special condition for his parole which had not been there before had not been in place before and there was no  indication that she she also tried to contact miss miranda the lady with the daughter who did not want to talk with her because she did not have a problem or didn't she was aware of mr turner's history and did not find it a threat to her daughter safety before your time runs too much could you address the two had arrests the one arrest for traveling some just go without permission and the other arrest for the  supposed to threat yes so we believe that the arrests which we believe fall under qualified immunity because they were acting as police officers and we recommended to the old boy were  retaliatory purposes for the first arrest in december mr turner had been having issues with the parole officers in both sides were frustrated one of the parole officers i believe it was defendant simms told mr he there was the the the people who signed off on his parole advocation hearings or who testified for miss smith mr sims and mr bend so miss smith was the one who most often appeared at the hearings but apparently he had contact with simms as well and do we know who asked that he be arrested it was miss smith but the reason i'm asking this is the judge prior uses it as one of his justifications for finding no retaliation contact with each other that they were both upset about these lawsuits right and the information that came to smith about the threat was came from two different people who'd been present so it came first through someone who was in the group meeting and it was a group therapy session and it was one of the fellow parolees and then when they went to verify or ask about it the person who had been leading the session also  confirmed that mr turner had been frustrated and had said you know like i believe the words were you know when i get through with the him she won't be singing any more melodies right in the end that she he was frustrated and when he gets through with the lawsuits that's what he says but through with the lawsuits did not was not part of what was communicated to smith when he was going to get a smith was when i get through with her she will not be singing anymore melodies that is what that is that's and that's the other thing that's unclear if that's what that's what smith back recollects and that's the exact wording was never fleshed out it's there was no record of it they all parties agree that he did say she won't be singing anymore melanie's but the context in which he was saying it it's unclear whether that was communicated to smith or properly but turner says  when i got through with her that is correct your honor but the other issue there was the delay in filing the arrest if she had thought that she was in imminent danger she could have taken steps to bring turner into custody a lot sooner and the parole board also found that they did not have any evidence to justify imminent danger is not clear on why her motive matters because of the supreme court decision in crawford  said a reading in how the defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated evidence concerning the defendant's subjective intent is simply cannot arbitrarily exercise conditions and still i thought you if i thought you could basically ran dealt with the rest that way and it looks like coffee and deals with this retaliatory motivator i thought that what the supreme court had done was just take us out of the business of deciding whether the motive was ok yes they the supreme court decided that for qualified immunity you have it you have it has to be knowing that you are violating the law and so if you are found to engage in behaviors that you know  e contrary to what the law has and stated so for instance i'm getting at something different suppose that she says well arresting this guy for i'm making what sounds to me like a threat and is justified under the law the reason i want to do it i don't i get threats all the time and i don't worry about a reason i want to do it as a hate this guy because you keep suing people like me maybe so bad motive but perfectly legitimate reason to revoke his parole i thought that meant that she still had qualified immunity under crawford i'm looking for education case i'm wrong on that the so at when the enmity is qualified in that condition then there has to be probable cause and here we were arguing that the probable cause wasn't sufficient because a parole board also found that there was no imminent danger and miss smith also represented that mr turner had a history of violence which led her to also think the threat was credible but there is nothing in his history that suggests that as well so she also there was he was in large mammals attack you but that's what it is yes and his violation there was for having a gun without a concealed carry permit and there was nothing else to indicate and clued in his time in prison or in his prior offenses that he had engaged in any type of violent behavior and no other sentencing reports or any of his other parole conditions also suggest that the he was at risk for violent good morning your honors and may it please the court my name is a leash about i represent the defendants of police i have one clarifying point before i start into my prepared points and that has to do with a timeline for the parole condition regarding miranda  so turner was released on parole in january of two thousand and ten within a month and a half he violated his parole by staying overnight in san francisco with miranda at a hotel without permission that was in february he had another violation in april of two thousand and ten this was where he was on the my book my red book dot com website and based on that violation he was returned to custody when he was released he had new conditions that's where you see the new condition so read my red book dot com is the sex escort site that turner was found to be visiting thousands of searches there so the condition regarding miranda specifically regarding miranda shows up in august of two thousand and eleven after he's released based on that violation in april of two thousand  ten turning to my my points here  that was imposed by smith your  honor the miranda specific condition was constitutionally sound but this court does not need to reach that question because turner's parole condition challenge is barred by absolute immunity despite his characterization to the contrary on appeal his challenge below was to the condition itself it was not an enforcement based challenge a summary judgment in favor of the parole officers was correct here and we asked this court to affirm for three reasons  first the record supports the district court's grant absolute immunity here because turner was seeking monetary damages based on an allegedly unconstitutional condition of parole second the district court correctly found that turner's first amendment retaliation claim fails as a matter of law because turner could not present evidence sufficient to establish each element of that claim as to each defend it and finally the district court correctly found that turner's first a memory tallied claim is also barred by a qualified immunity first with respect to the district court's application of absolute immunity turner was challenging a condition of his parole imposed by agent smith a restriction on turner's contact with miranda his alleged fiance this court's decisions and thorton and swift make clear that absolute immunity bars a parolee damages claim against a parole officer for imposing allegedly unconstitutional conditions turner is no longer on parole he's no longer subject to the conditions at issue his claims are limited to money damages only the district court correctly applied the warrant to find that turner's challenge his parole conditions specific to miranda is barred by absolute immunity even if absolute immunity did not apply the condition was constitutionally sound or at the very least qualified immunity applies agents have broad discretion when imposing parole conditions they're afforded considerable deference the condition should be based on the particular circumstances of the individual parolee as opposed to blanket arbitrary conditions and that's exactly what we have here so there were four specific circumstances of turner's case that justified imposition based on  parole interest the first is the record shows that miranda had sole custody of a minor daughter and that minor daughter was around the same age as the victim of turner's earlier offense and  that smith for bade him from doing the exact language of the condition your honor is you shall have no contact with amy or miranda zero except without prior matters not what evidence is favorable on her side you're right your honor even if it's true that he did tell her that that was his fiance there's no evidence in the record that he did that before this condition was imposed which i believe  question is that ok ok but the exact language of the question is you still have no contact with a mirror miranda except with prior approval ok and so that's that's the first condition and i think experience that he was asking to do more things with her like tutor who are to do the daughter take or take her to the zoo things like that and the interest it wasn't necessarily a red flag for agent smith but it definitely raised her  it definitely fell out of place for her to the point where she did more investigation as miss porter mentioned what agent smith did at that point was told mr turner i'd like to speak with miranda i want to make sure that she understands the conditions of your parole particularly here where again several of turner's parole violations involved miranda so his very first parole violation was staying overnight with her and then a few months into his  parole he was found to be using that site my red book dot com where miranda was advertising soliciting sexual services on that site and he this is in the record that turner was trying to help her with her business at that then and then the other piece of course is that ms miranda was a prostitute that's directly related to turner's possibility of re offending so this is very different than the wolf child and the no pollute case where  this court held that restrictions on contact with contact with family members are allowed but that you need to do an individualized review of the relationship and in for example in the apolo case there the relationship was more about productive behavior versus being founded on criminality and here we have pretty much the opposite so in the napoleon case which is a hopeful contrast we have a relationship a restriction with a specific person who was helping the proly with their rehabilitative goals i'm encouraging them to do the right thing here unfortunately within a couple of months of being on parole mr turner's contacts with miranda we're doing we're doing sort of the opposite exactly the opposite here they were sort of going back to his former crime related offenses moving to my my second point the first amendment  there you can kind of refer to argument at this point a little more interested in the legal arguments i guess the big one for me is qualified immunity you are absolutely on imposing the condition way it was absolute immunity rather than qualified immunity the claim here was an imposition based claim your honor and that's why absolute immunity applies if you look at the operative complaint turner was alleging that the defendant hit him from associating with his fiance his claim fiance in taking the facts most favorable to him even if that were true that that was his fiance at the time that was a condition of his parole there's no dispute between the parties that that that was a condition that he was restricted from contacting miranda that's very similar to the imposition based challenge in thorton there the challenge was i have a resident residency restriction i'm challenging that so that would be if you got into the specifics of that i wasn't allowed to move in next to a daycare that would be in position that's the that's challenging the condition itself this is very different than the swi case the enforcement based conduct there was an investigation which is very similar to law enforcement ordering an arrest you know the fight was about things that what were much more officer like aspects of how it was being in force here it's not that turner is saying oh you know you ran into you were following us around or you barged into our motel room when we were together it's the condition itself you're not allowing me to have contact with this person and even if it was qualified immunity here we think it would be reasonable based on the circumstances that i mentioned agent smith did an individualized assessment she was mr turner was a high risk sex offender the california penal code has special rules that require additional supervision for those and she was doing the best she could given his repeated parole violations and again the public safety whether or not intent is relevant but the word then stuck with a sort of conundrum if intent is irrelevant i don't know how we can even talk about retaliation because retaliation presumes we do agree that that a tent intent would be irrelevant here especially based on the facts of this case one thing i do want to mention and i apologize if this is not answering your question let me know but sam smith bennett they were not served in this case with a summons until july of two thousand and twelve so they weren't in this case the record is clear that when it was discovered that agents simms was part of a lawsuit from mr turner she was immediately transferred or he was immediately transferred to a different caseload based on a conflict interest that's in the record but this was sort of what you were getting at earlier with miss porter is that at the end of the day this was a neutral third party giving her the statement right so it was communicated to her not about a lawsuit it was it was i'm concerned for your physical safety threats were being made he was jumping out of his chair he was using hostile tones i'm concerned for you she confirmed that with the counselor and then initiated and she initiated the parole and so that's why does create a problem because there's usually going to be some sort of hostility issue between the parties for the first amendment claim but here we don't have any evidence of a desire to chill his his first amendment agent smith had any desire any interest any knowledge of his federal lawsuits those there's definite definitely a big disconnect there and there's no evidence that they spoke about it that there's any sort of connecting link between those two the record shows that there was probable cause found for her actions on several occasion after the fact so the unit supervisor on december sixteenth two thousand and eleven found that there was probable cause to maintain the parole hold that's excerpts record nine thirty six also the deputy commissioner on december twenty ninth two thousand and eleven found probable cause for the parole hold that's excerpts of record one thirty eight and then the prole administrator also recommended a return to custody and that's excerpts of record one thirty four and in the parole context there just has to be a reasonable belief that there's been a parole violation and going to your second point that that's also the issue with agent that claim against agent sims is even if he did make these statements there's no evidence that he acted adversely based on those statements so mr turner hat does have a problem not  arrested there's no evidence in the record of that your hon and i see my time as a lapse if there's no further questions thank you think you know now we took you over time would you put two minutes on the clock  please just a few points to make first bird and not pollute the all of the parole violations like turner's and beginning included were because not the who was visiting her fiance and the condition on her was a more common one because her feet or her life partner was a felon a convicted felon but there the court found that that didn't matter based on the nature of their relationship and if it seemed to be helping her there's also no evidence on the record tha charge and they claim he was looking at online which was on a computer in violation of his parole so we don't contest the computer but he was on a computer but the fact that the parole board found that the online work that he was doing wasn't the pornographic type it's concerned with sorry as to miss miranda because she had a legitimate massage therapy business which the parole board did fine so they did not grant his whole based on the charge of i believe the charge said pimp and pandering the other thing that i would just like to note was that there were less restrictive alternatives they could have barred mr turner from visiting the daughter they could have met at a neutral location she could have been allowed to call him most he had several parole violations for also calling her and so something less restrictive would have been appropriate condition was throughout his parole and so they had a very frustrated relationship at best and so mr turner i believe may have tried once and was denied the right to spend he might have asked i think to spend the night with his fiance and it was denied because it was coming off of his initial his initial his initial violation of spending the night with the fiance and so he just kind of gave up at that point i believe  parole officer and mr turner was so deteriorated that it was unlikely there would be prior approval and i would also miss bowers mentioned that there was the board found parole for it for his december twentieth the that the board found there were valid reasons for parole hold that was true but they found those based on mr turner was agitated when he was arrested so they found that there was good reason to hold him because he did resist or initially resist being arrested ok now you're over the time we gave you an additional so if you'd like to sum up yes your hon we believe that the district court erred in finding that the defendant had absolute immunity because the especially for the arrests the december eleventh and december arrest because we believe qualified immunity was appropriate and we do believe that there was enough evidence of facts that to show that there was a dispute a material dispute  reasons the officers chose to engage in those arrests and for for miss smith for her april two thousand and twelve arrest of mr turner she also another reason could have been that she was disappointed her initial december arrest was not for longer because it was found that he she did not have an imminent threat ok ok thank thank you very much thank you thank both sides for their arguments turner versus smith