my name is david lawrence i represent the appellant's in this action which i read with the exception of one end i got a who's represented by miss ashley clark although she will not be addressing the court this morning it was just you just me ok i'd like to reserve five minutes for rebuttal if i could ok let's look at the clock so you keep trying to keep track if you this is a case that pursuant to ninth circuit authority in effect since one thousand nine hundred two should not have gone to trial the district court lacked jurisdiction having denied plaintiff's human versus right motion and as a recall as a result the entire trial was a nobody this isn't real  to figure out whether this was something that congress has the district court doesn't have authority to hear a case but there is no statutory prohibition on that just record right it's it's just judge made law it's judge made law and it really goes back to a seventh circuit case apostle versus galleon which is which which put into effect this certification procedure i mean there had to be some procedure to determine where jurisdiction diction exists once the supreme authority to to proceed but we've made exceptions to that have they have a number of cases raising harmless error saying that's it was harmless error the immunity is immunity from trial not just the defense to the case but after fifty those issues heard by this court so they didn't have to stand trial and you won't find cases where i mean this is an unusual case because the number of defendants who started out with forty got whittled down to twenty eight who went to trial not one thousand of whom were apply to the bain act cause of action but i think that the the fifty two point one claim was was related to the issues on appeal and therefore the district court did not have jurisdiction basic rule but that's an entirely different cause of action is the state law cause of action there's nothing as day law that says they don't have to go to trial i understand that your honor i think how how can you but you're saying they don't have to go to trial on the say well cause of action so long as their nine hundred eighty three qualified immunity is on appeal i don't get it i don't think they did but even if they did i think it was an and agreed just abuse of discretion to where to let this case and go to trial and certain claims wow there were valid interlocutory appeals pending before this court well it may be a problem with respect to going to trial in the one nine hundred eighty three claims but i have trouble seeing how it's an abuse of discretion to go forward on the state law claims as to which there was no defense of qualified immunity and if we're just looking at the state law no reason to hesitate going to trial and you know you know as well as i do maybe even better if you've got a multi defendant trial like it is just the devil's work schedule that it is it is i think all the more reason why the court should have stayed the trial and allowed the qualified immunity deal process to work its way through the ninth circuit and we would go back and then we could try the entire case on at the same time with jurisdiction over all of the defendants over all of the claims there are other how did you make a record at the time before the trial judge that you did not want to proceed well first of all tuman motion which was denied by the court and the court acknowledged that it did not have jurisdiction we filed a motion to state trial which was denied by the district court right and so did you say we are we are proceeding  without waiving our objection no we did not we have objected to proceeding with trial and plaintiff's counsel vigorously asserted that they were entitled to proceed with trial notwithstanding the interlocutory appeal and that flies squarely in the face of human versus right a possible to gallion all the other circuits that have adopted that certification procedure when there's a denial of summary judgment on a qualified immunity issue isn't there a prejudice that comes  om moving ahead even if you have some claims that are not impaired in terms of the trial court's jurisdiction because the momentum from crying all of the facts against all of the defendants even those who theoretically or presumably have a right to have the in rocketry appealed to cited that you gather a different dynamic at the trial by virtue of having everybody there and all the issues being tried when some may not need to be there or that evidence shouldn't be coming into trial there's sort of a dynamic that changes when you've got everybody there on a police excessive force case anymore now clase i know now claim along with it the mono aspect of the case is always bifurcated and this case you couldn't find a case for it you know what's your evidence for that's not that's not my experience at least sitting up here on  the evidence of drug usage and gang membership came in in the liability phase and this court said that was an abuse of discretion not to bifurcate damages and liability relying upon the cases that had bifurcated the moon now claims from the underlying claims in police cases and that the most significant case on that is clinton ia vs city of downey in the in this case in this case the jury was told that a blue ribbon panel of individuals who were retired federal judges retired u s attorneys a sitting cif a police a members of the community and a expert in corrections had all sat on this citizens commission on jail violence panel and come up with these findings and the jury was read the findings from the c c j v and those findings included that use of force against inmates was disproportionate to the threat or there was no threat at all several key department leaders ignored  deputy aggression and discouraged discipline at the men's central jail that that deputy or captain cruz who was one of the defendants encouraged then lieutenant bormann spend not too much time investigating deputy misconduct and allegations all of that of command only the state cause of action had been tried no because why not because because there's there's no mono equivalent to the fifty two point one claim and this evidence did not relate to that this is not evidence relating to this incident itself this was a study of the men's central jail conducted by a commission put together by the board of supervisors for the county of los angeles so go ahead sir so no this would not have come in if only the fifty two point one claim well it doesn't really relate to them the money i'll claim is against the county of los angeles and so bringing in that evidence bringing in that evidence first of all it couldn't come in against them individually under evidence rule for  four would be other bad acts that did not relate did not relate to them that would be prejudicial to them got ninety three claims going on then again some individuals and against the county of los angeles and of course the county of los angeles does not have qualified immunity correct i'm saying that there shouldn't bifurcation of trial so i'm saying that the mono evidence which was extraordinarily prejudicial these individual events did not have a chance for a fair trial when they heard all of these findings of the c c j v read to them by this blue ribbon employed by the county who actually pays them cali pays a compensatory damages punitive damages are the live are the are the obligation of the individual defendants however the board of supervisors if they make certain findings can after the fact make a exist to go back and make the record reflect what actually happened and and plan to cite no cases to the contrary they cited one supreme court case a dissenting opinion which was overruled  suggesting that perhaps that sort of procedure could be employed but not proton orders exist to make the record reflect as things that actually happened to correct errors and omissions in the record and then  any authority i guess it's up to this court the others just judge made law to say well we'll well acknowledge it or we'll accept that there's nothing that would preclude the court from doing that right there's no statutory no ar doing that nothing to preclude the court from entering the order not pro tunc no for a fur us to say it's sufficient if a district court makes us determination after the fact what would preclude us from saying that i mean we we made up a rule and schumann and we can now  has to exist somewhere if there's a denial of a qualified immunity motion on summary judgment and there's a notice of appeal filed jurisdiction is in is in the ninth circuit unless and until the district court issues a certification that the appeal is frivolous or waived or the ninth circuit dismisses the appeal neither of which happened in this case but in this case the district judge found that the the qualified immunity request was frivolous because it was based on facts and controversy right nine months after the fact no but her ruling in denying the qualified immunity was because her facts in controversy right right at the  get go but that doesn't that doesn't preclude review of a denial of summary judgment on qualified immunity by the circuit court right it doesn't preclude it but it does express a frivolousness finding by the district court which is the exception to the sort of occasion process i know of no case that says that because the district court said their dispute this is a fact that's the equivalent of a finding of frivolousness and  i haven't seen any cited by the athletes in this case well it's a little hard to say that it's for voice from the get go on the basis because you really don't know what's going to be litigated you do know afterwards what was actually litigator assad to be litigated feel and you can tell afterwards of it from was just a little hard to know at the outset it is particularly when the district court did not articulate what the material facts were that were in this case what do we do if the district judge properly and i don't actually concede but if the district court properly determines that the appeal actually was frivolous if i'm sorry but well what do we do  as you know that appeal was frivolous and let's assume that she's right it was frivolous i submit to the court that the it did the court did not have jurisdiction while the trial was proceeding and therefore it was i didn't see that i didn't see a case i didn't see a case where cited by plaintiffs where there was a qualified immunity appeal where it was denied where there were there was a human motion that was frivolous and that's what happened nine months after the trial what's the practical consequence if your worst nightmare comes true in the sense that we have well is i'm not sure your worst nightmare there's there are so many issues for one thing the punitive damages were only pursued under federal law and those defendants had pending qualified immunity appeals so that when they're gone they'd vacate the punitive damages award anything else go go away  it's difficult for me to to answer that question there are so many issues in this case your honor one thing i'd like to address if i could is juror number five i think that's a significant issue in this case juror number five well you know running down on why doing war dire he forgot that his father was an attorney even though he acknowledged that his mother a well known civil rights attorney i don't think he forgot that his father was an attorney i think you forgot that you forgot to mention the a c l u connection though he didn't mention him at all in  dire was asked whether you're for or for mitt romney well the the the question was asked do you know attorneys or do you have family members who are attorneys and questions of that nature and he identified his mother he did not identify as father after the jury's impaneled  father and as it turns out his father was a sitting vice president of the southern california a c l u and a former sitting president of the a c l u which had very similar cases against against the county of los angeles they had issue reports one of which entitled cruel and unusual punishment how a savage gang of deputy control deputies control l a county jails other similar pavers the a c l u was monitoring the jails through a consent decree  rather for case so you was was up to its neck in involvement in the l a county jails when you take that into consideration with first of all he was the juror became the four person the effort that had been made to fix problems at the jails there was the issue of the anthony who was the fellow who was convicted of murder who journey over five years mother as part of the instance projects to help secur his release from prison who then became represented by plaintiff's counsel is richard drawing who was the general counsel for the citizens commission on jail violence who was a very close friend of juror number five when when my conscience heard all of these connections that juror number five had to all these people whose interests were adverse to the l a county sheriff's department and in jails you know what was new information that came out afterwards the only new information that comes out afterwards is other now father the father and his connections and that's significant because of the a c l u s involvement i get that but i'm trying to figure out what information did did you we did not ask for extra strikes now that's a pretty routine requests at least in my experience i've never seen that happen but i may ask you another question and on another topic yes if you should be entered for all the defendants on all claims if we disagreed with you on your fifty two point one argument and thought that there was no problem with how it was instructed and tried well what's the effect of the decisions on the eighth and  frankly it doesn't have any binding or collateral effect it's i've never seen the situation arise but it would seem it would seem odd to be ignoring the actual jury determinations on in the same case that were actually litigated seems like there would be some sort of precludes of effect there there maybe maybe and which is why i was arguing that the the fifty two point one claims are are part of the appeal or at least related to the appeal the jury had more than enough evidence to find the defense use excessive force maliciously insistently for the purpose of causing harm and although defense raised numerous issues they are not challenging the sufficiency of the evidence in this case to prove the amount of violation and this i think goes you could as question because there is supreme court a ninth circuit present that where there's been a trial of the facts of the trial are what you look at not the facts a summary judgment record if i understood your question correctly i just was wondering what if we agreed with your us what's the effect of the decision on the eighth and of violations at the trial that take place and i wasn't sure how we would consider them a dozen of the have just haven't seen a case immunity inquiry so you can't you can't determine you can't say that the officer was acting reasonably with this purpose to harm you can decide maybe the force you know if it's regular for the moment case you can decide maybe the force  the reasonable but he acted reasonably but if the defense is acting with a purpose to harm that is you know by definition on reasonable he couldn't he couldn't have believed he was acting in accordance with the law can i ask you about another issue which i was says well i felt threatened by the camera when interviewed and that there was sort of a generic gang like culture but i think i've said mcbride that you can't have these sort of vague and general reasons that  would would in effect mean that anyone in the prison doesn't have to exhaust remedies under the p l r so what do we do about i thought mr chen i had a very nonspecific explicit threat i should say it permitted the notion of implicit threats or feeling and you know as long as it was objective reasonable that the inmate felt threatened then that is sufficient for the objectifying of the our analysis  they would understand the threat to be related to using the grievances so that the threat itself didn't have to reference a grievance system but it did have to be explicit threat and you have this extreme violence that's occurring to them including threats during this this incident there were threats being made over and over again not about using the grievances them but threats being made to them of their bodily harm coupled with the fact that from pulling this perspective this was all in response to their protest of earlier excessive force in the jail so they are engaging in what they believe is protest activity and they're getting the crap beat out of them for it and then finally the final piece of that is both rodriguez and trinidad did say that they were aware of  can't have something that everyone in the jail could raise i disagree with you're i think to the extent that if there is in fact if that if it's credited that there is a history of retaliation in the jail for filing grievances and inmates know about that i be reasonable for them to feel threatened just because everybody can say it if it is actually true that there is a history of retaliation i think that gives rise to the object of fear of retaliation and this is not just any grievance this is revenge against this behavior which will i think fall into a different category in the sense of whether they reasonably fear that they're going to get retaliated against correct this is as distinguished from other grievances they may have filed about you know am i going to get my doctor's appointment next we kind of grievances take if we can take all facts in the light as favorable to the moving party we can still consider whether the moving party is entitle to judgment as a matter of law and so that there is absolutely no reason why this this how that would defeat our ability to resolve that sort of appeal i think under that scenario however the ruling in the supreme court's ruling in johnson really has no effect i mean what inst what would the what would the import of johnson be if you can always if you can always if you can always this or the fact that like most people plaintiffs and as always it's not in fact are there are many cases where the court has the court of appeals has said look you're not accepting these facts you're not even raising legal issues legal issues that can be decided on the basis of qualified immunity i mean i don't know whether it could be a combination of of fit you know disputed facts and waiver of not making the correct appeal would be affected so there were numerous defendants in this there's a chart on page seven of the of the entering brief there were numerous defendants who did not file and walked tory appeal with respect to the plaintiff for which they were found liable the cola supervisor defendant is that only punitive damages that are estate only punitive damages of attorney fees would they be modified if some of the punitive damages are taken away or is there policed potential for modification i think there is a slight potential for him on occasion but i do not believe that the case would have been tried the way the attorneys fees i don't think that the case would not have been tried differently without those supervisors because they would have been there for the fifty one claims to so it would just be a question of whether the punitive damage any separate time that was spent on punitive damages issues which maybe there was a little bit of briefing so that it would be so the marginals of them we might want to give the district judge chance to reconsider that was made that was not caused by that the party that was that was seeking the relief well it was an error it was an omission right at the denial denial was an air right fill the gap did not have an option to rule on that before trial and so there wouldn't be the same situation here is where the plaintiffs did properly seek that relief and advance of trial and it was improperly denied you know if you if you look at the judge's previous ruling and if you look at  no neat legal issues for determination on appeal which is which is if you look at the qualified i mean the arguments in this case really what's going on i mean there are people before us so so they they had introductory appeal is that part of our case here it very small part defendants have not raised any issue of unclear law except with respect to the tailored of anons i mean it's just not there's there's nothing there and with respect to taser defense they're relying are there facts in the record that they were being held down or they were incapacitated and they were being used by the officers absolutely some of the plaintiffs were handcuffed while they were being tas the facts that were proven that you're now referring to were they all alleged facts to we were supposed to take the world in your favor the i'm trying to get at the foolishness determination not polish talk but the frivolous determination that should have been made testified live as what was in the summary judgment record the issue that could that i think caused the court to have problems that you might morton before trial wasn't that the facts were completely in dispute i mean the facts have always been completely we didn't do it we didn't use excessive force we were malicious insidious take all those things so the record of what i'm trying to figure out is  an order show cause and then the party submitted briefing on that order show cause which defendant said no it we're going to assume the facts unlike most federal plaintiffs will do it the right way will be kosher playing to said no they're not there they're what they're really disputing is is the evidence and the and the proof that we have of excessive force and maliciousness insisting that excessive force and the court of appeals the the order disposing order show cause was essentially material facts were in each of the cases and so we ordered it for anything i don't know what happened after that well i was discharged with the notation that the issue of jurisdiction will be briefed and decided with the merits appeal so it wasn't a decision on the on whether or not there was jurisdiction it was a decision to defer that until the merits briefing and then in the meantime of course the defense also filed a motion for an emergency stay with a number of appeals have the same problem the district judge did in determining about whether there were fact motions panels things go fast and if it's really complicated the motions panel will very often just say because there's a necessarily there is no right or wrong answer is just we don't have time to do this us over time or we took you over time why don't we three minutes on the clock and see if we can stay within that we might or might not be able to the grievance procedure was not available to these to these plaintiffs they acknowledge that the procedure existed they had filed grievances in other other instances and when you look at the m case it says that the only thing in that case the only potentially relevant fact was that mcbride and that was the the plaintiff alleges is that he was beaten and that the guards who beat him made the statements now there has to be something more then these generalized notions that there may be retaliation if grievances are filed and we were in the position of any of these plaintiffs and this it happened to me and i understood the l a county jail conditions i'd be terrified to look for we haven't and i think mcbride versus lopez recognizes that he recognizes that there is hostility between guards in the jails and inmates in the jails nonetheless and set forth a two part test a subjective standard and in the objective standard and the subjective standard is whether or not the person subject will subject to believe believe that there may be retaliation for filing a grievance and any pride in the problem with the grievance filing is you have to identify who is the perpetrator against you so that makes the specific potential for retaliation or the potential for retaliation from a specific person or persons more likely doesn't it issue in this case i wanted to talk about that if you what's the effect of our ruling in favor of you on the exhaustion on the what what's the effect of our ruling in favor of your position on the exhaust i'm at a loss as to what else it might affect thank you