asked to characterize the events of the third of june two thousand and thirteen the occasion where a obviously beaten scared one man was left on the street after her abuser had it had been announced that he was going to be arrested only for the sergeant to say that he was not going to be arrested she described those occurrences and also when she was given no information for how she could protect herself officer jambu but described those occurrences as regrettable they weren't just regrettable they were unconstitution in this case the judge a very good judge looked at the case very carefully but even he conceded that he might be construing overly strickly the requirement in a non excessive force case that you have to have a prior decision on all fours with it as a matter of fact more recently and this is the case that i provided a related case made it clear that in the substantive due process context you do not need a case that is exactly on all fours and that you need to have a case in the same context though that was crowd control and so our court didn't think it was enough to just have general background principles about increased danger that is absolutely correct on and they relied i believe on the johnson versus seattle case the mardi gras case from about ten years earlier as sufficient support grappled with extensively during the transcript of the summary judgment hearing and it is a case that i will concede to you having continually updated my research remains the closest and in one case from another circuit enough to make the law clearly established what is your problem what is your support for that yes your honor it isn't with respect to that i would cite the court to the parents for city of roseville case that's i believe from september of two thousand eighteen where this court decided it's in footnote nine of that opinion where the court said that the ninth circuit case law is obviously provides the central guidance but the court can also look to decisions from other sharp the city of orange by our court in two thousand and seventeen said that if we're looking outside the circuit the president must be embraced by a consensus of courts outside our jurisdiction yes your honor i believe that's also expressed in moon versus tice from two thousand seventeen and in this case there are other cases that were cited to the district court the watson case which the court cited in its argument which was similar but not  oaken cases almost exactly the same facts there are other cases where in the domestic violence context where the court has found courts have found that officers acted or or fail to act as it were in a manner that increased the danger to the victim but the central clearest most reliable most analogous case i should say is that i don't know that oaken is correctly decided though so if i feel that way why would i say it's clearly established if i was a police officer supposed to know that well your honor oaken is an extension of this court's jurisprudence from the last thirty years starting with wood vs or where the course of decided in a variety of contexts that where officers through their actions are in some certain instances in actions increase the danger to the injured party the great and usually it's where there's no danger and they create a danger and that's clearly increases it this martinez was under danger before the officers ever got there the stand she was under danger afterwards this if they had arrested him and released him she would be under danger i mean her and you know i've seen so many cases where he pleaded with the woman to not go back to this man he's going to kill you and she goes back and so what sometimes what can you do to not to stop the danger i have a twofold response to your honor's question first your honour's argument is very similar to the argument that failed to persuade discordant hernandez versus city of santa is a case where it's stated in the court's opinion that yes these trump supporters did face a violent separate apart from the officers that this angry mob of anti trumped people but the court specifically said in that case none the less the actions of these officers by sticking to this capricious crowd control plan despite the fact that they knew the prior that morning there had been attacks knowing that historically in other locations there had been attacks and seen being first hand amongst these people and seen that the fear that these supporters add that that notwithstanding the fact that the danger was presented by third somebody gets killed understand but this situation the policing is horrible there's no question about that but was it a clearly established constitutional violation or was it just really  policing it was a constitutional violation and i wanted to address the second point there are as i would concede far too many cases where unfortunately victims do not listen to well meaning officers and the worst case scenario transpires here is exactly the opposite we have a woman who is begging these officer saying i'm scared of him he choked me he and a hotel room he beat me he's going to kill me and he's obviously subject to arrest and she wants him arrested and instead of arresting him even when the officer in charge of this investigation knew that he had committed a crime as serious as attempted murder she and that he has guns since i'm back in the same house with this gentleman why haven't you in your brief distinguished sanders in terms of liability it seems like you lump them together but it seems like they acted pretty differently in that situation they did act differently your honor and what i would say regarding officer by is this there is no doubt she was placed in an extremely difficult situation however i would liken it to if a supervisor tells an officer to shoot someone when that officer knows it's clearly unreasonable the officer who pulls the trigger doesn't get a pass just because his supervisor or her supervisor told him to do this is the same situation officer in her deposition which i think the crucial pages are pages eleven seventy two through eleven seventy nine she knows based on her training based on what she observed based on having spoken all of the parties that this woman's life was at risk and instead of taking the action that her knowledge of the law ailing to rest isn't enough right i mean it just failing to arrest isn't it in less you're communicating in some way i think this is the theory of the second circuit unless you're actually communicating you can keep doing this and we're not going to arrest you and it seems like yeah but i didn't really communicate that i think it sanders if anyone who communicated that absolutely sergeant sanders threw his his very vocal announcement that this person wasn't going to be arrested and that the penningtons were good people certainly know that that was sanders i thought it just the testimony was the officer said and i was struggling with what to do with that this people line actually i think you're correct that comes from miss martin a summary judgment declaration and it is an attribute to any specific person i apologize with with respect to family didn't mean to do we need to assume it was sanders for this purpose of summary judgment we don't we down and we would  quite frankly be guessing i my surmise is that it's him because he's the person i had the longstanding relationship with the pennington family but there's nothing necessarily that says it had to have been an officer yeah i would just say however did not merely fail to arrest it's mandatory under california law when you do not make an arrest under penal code section a thirty six b to tell that person who you believe is in danger you have a right to effectuate a citizen's arrest but we never said that that was a constitutional violation to not say to not comply with the state or local ordinance or anything like that i mean if again let's say the policing is very very poor here but you're asking the court to take a second circuit case or i appen agree with judge mcmahon the trial judge and there's a seventh circuit case that goes different way and say and it just recently the u s supreme court in the city of escondido m percent said assuming without deciding that a court of appeals decision may constitute clearly established law for purposes of qualified immunity so you know the supreme court has an absolutely agreed that we can even look at ninth circuit cases let alone a single second circuit case that we may not agree with your honor i understand that qualified immunity is a moving target in most unfortunately the people i represent oaken is not a new case it was not new at the time that these officers came into this situation and also with respect to state law obviously a ignoring your state law requires in and of itself is not constitute a violation but as the court in oaken stated that also can inform the court as to their and whether or not they acted with deliberate indifference and in this case not only did officer fail to provide  the notice of citizens arrest that's required under the law she failed to do the same shift report that is required under penal code thirteen seven a wind she also failed to provide any of the information materials although she herself said that they were available on scene to miss martina so not only did i do anything that made and martinez worse off than she would have been if you have never shown up at honor because as officer said based on her training when a victim reaches out to law enforcement the danger to her is greater than it at any other time so miss marteen is now has reached out to law enforcement has presented her claim a very valid one that was believed by the officers and they sent her back in with someone who had weapons and that actually made things worse than if they hadn't shown up to the house at all that day yes your honor and the record shows that when they went back inside this martinez was beaten she was raped she was sodomized and then after all of that horror mr pennington's family comes over they tried of course  false statement to the office good morning may it please the court diana field representing a pelleas hershberger and sanders in this case in order for this summary judgment to be overturned and the case sent back to the district court mr little needs to convince you that number one the officers violated the constitutional right however bad the policing was there was no constitutional right involved failure to perform a mandatory duty is not a  officers showed up and it was clear that they had a basis to arrest that was probable cause it looked like the victim had been beaten up and they basically say you're good people because you're a police officer we're not arresting you you can keep doing this and leave is that not unconstitutional no one to arrest is a discretionary act so wouldn't that be increasing the dangers of the victim well as you have pointed out by a question  with the danger have been increased had they not shown up at all but it isn't communicating if they walk in if they do show up so i think let's talk about sanders if standards shows up and i know this isn't exactly the facts but it's pretty close to the facts or just take this for a second as a hypothetical sanders shows up he sees the victim beaten up he says you're a police officer so you can just keep doing this because i'm never going to arrest you and he leaves has and that made it worse than if he never showed up at all well under those facts that may be true however those were not the facts that the officers were presented with that day they they arrived the parties were outside the parties were a toxic aided there was  the parties were separated some want to be spoken to miss martinez wanted to stay at the residence she did not want mr pennington arrested she wanted to stay she did not beg to have a rest and i think that's a misrepresentation of the right not to take the facts in the light most favorable to her at this stage right from the record yes not from counsel's argument and she says they weren't separated i mean several of the things you just said i don't think are her version of the facts well they were separated by a few feet ok well that's not very separated for hearing what someone is saying is it which is the relevant question but i would agree with that so that doesn't seem like they're separated  but the point is there was at least thinks that there's probable cause to arrest and if sandra says no because he's a police officer and we like his family he's good people we're never arresting him which it seems like is basically what was communicated at that moment why isn't that making things worse off for the victim because now her assailant has been told do whatever you want to her well i think this is a case that is like there was a case cited in the is it the hernandez case that mr little brought up it's called patel where a teacher did not supervise a little girl going to the restroom and she knew that there had been complaints about this little girl having trouble in the restroom and being unsupervised and she may have had learning disabilities and the teacher knew this information and yet did not supervisor but the court found in that situation even with this little bit of knowledge there was still not she had not increase the danger to the little girl as there are lots of cases about inaction where doing nothing is not unconstitutional but if sanders stopped an arrest and communicated to the assailant you can do whatever you want because you're good people isn't that making things worse isn't that action rather than just in action i i understand that's the court's reading of those facts for purposes of this argument however that is not affirmative action such as we have affirmatively directing the protesters a certain route where they are most certainly to be beat up they had no choice they were directed to go that way and they wanted to take an alternate route through safety and they were not allowed to do that mr martinez chose to go back into the home with mr pennington and the decision to rest are not whether it was a good decision or a bad decision is more a negligence and duty issue and not a constitutional violation because it is a discretionary decision in california whether or not a peace officer is going to effectuate an arrest even if he has probable cause there any reason why we shouldn't announce a rule now that says that if a police officer stops that arrest when there was probable cause and communicates you can keep doing the you can keep going with the assault because we're not going to arrest you that shouldn't be unconstitutional whether or not you should announce that rule now i mean we have to let's say we're going to win this case because it's not clearly established but is there any problem with that rule as a it doesn't that can you explain as a representative of police officers whether that would be a bad rule well i think would be a bad rule because that's going to automatically always create a question of fact between the two sides because in the one side will always say i heard that they were going to arrest individual and said no we're not going to arrest him because they're bad people and the other side will say the opposite there will be no way for police officers to ever have qualified immunity if the ninth circuit were to announce  rule said it was or not the facts here here you have an officer saying i determined that he should be arrested and that there was a violation of a crime and i'm overruled by my sergeant so that's what we're talking about the people are not going to lie about something like that i don't well you can assume that you know it wasn't a very regrettable situation because it was her supervisor and she was fairly new on the department i think maybe about two years at that time and she was following the order of her supervisor and they did have a discussion afterwards and the case was sent to the district attorney's office within that evening and mr pennington was arrested within twenty four hours and i'm glad that happened but he should have been arrested on the scene and what we're talking about is what do you think about that do you think that's really going to have a negative effect on the police if that were the new rule going forward and as long as it's clearly communicated then that is the rule that they would live by and that is that is how we would train our officers and i'm sure that they would follow it but that is not the rule now so it is not a constitution to violate wouldn't it be a reasonable rule to tell officers that they shouldn't tell assailants it's ok to keep going with your assault would that be a reasonable rule that that would be the rule from the court and it's the rule from the court it would be reasonable well mr field we don't you know we don't want to push you into saying something that you think your clients they want you to say but this problem of domestic violence is a serious serious issue and you know what we need to look at ways to try to protect people who don't always have the best judgment in their own lives and that's why we require information be given to them that they be separated from their abuser and be treated a certain way and that's just happened here it is it's a vicious cycle i agree and speaking as a female i look at the facts and you know that what happened to ms martinez at the hands of mr pennington  important i agree but when we're talking about was it a constitutional violation or was it just bad policing was it negligence was it a failure of a state duty what we're looking at here is was it a constitutional violation violation for which these officers can be denied qualified immunity and at this point there is no case there is no ruling there is no law establishing that and even if there were it was a constitutional violation violation as pointed out by everybody who has briefed this case and the district court there's only one case remotely similar which is the  and the court went through great lengths that the summary judgment to say that he looked high and low for authority he he searched everywhere and this was the only one that he could find but he could not say that that that case was specific enough to resolve the debate so that the constitutional violation was established and i also pointed out in my brief case has been criticized and rejected by the seventh circuit so we have a a difference between the circuits here so how can it be established law how can it be clearly established under those circumstances the one case th similar on the facts and there's another circuit out there saying we reject this and it's it is a case in new york we're talking about police officers here in california and i would actually like to share a little anecdote with the court with regard to this proposition recently in california beach we opened a new criminal justice training center and it train officers from fifty different agencies locally and it opened on april tenth of two thousand and eighteen the keynote address was given by judge that's worth and part of his keynote address and i think this speaks to the heart of qualified immunity and why it's so important to keep it for police officers judge beds were said every day every time a cop picks up a paper or watches the news he learns about something else he will have to know about probably before the end of his next shift the amount of education and reeducation our police must assimilate every day is staggering and that's true we call upon our police officers all of these police officers  that if you have a domestic violence assailant know that the victim is making accusations and that if they communicate that the assailant can keep going that they're increasing the danger did they all know that i don't believe there was testimony to that i mean how is it possible that that's not just intuitive it's just obvious isn't it well you know we're talking about summary judgment and what is in the record and i don't think the intuition is a part of the record and i don't think it's like a subtle point that domestic violence is likely to get worse in that situation that's usually the way the cycle goes and prior to that one occasion with officer and sergeant sanders there had been a previous check the welfare call where martinez was likewise on co operative and even failed to return the calls from the technique i'm sorry well she alleges that the officers kept her in front of pennington at that time and she had the opportunity to speak with  detective when he called privately but she chose instead to share what happened to her with a friend who was a police officer that she had had a sexual relationship with but telling him that she didn't want to file any any kind of report so i agree these situations there are important but there has to be cooperation on the other side with the police i  and i'll be as brief as i can it was as pled in plaintiff's complaint it was set up under two very specific factual allegations the first being that the abuse occurred in homes owned by kim and condi pennington the second at that camp pendleton as a volunteer police officer owed a duty to her to the plaintiff and that he would therefore have exposure to the negligence cause of action both of those theories were dismissed on matters of duty by the district court as to the homes it was shown without controversy that none of the these homes were owned by our clients secondly with respect to mr pennington as a mandated reporter that's a reference i believe to the california law or act but that does not provide for civil cause of action the court looked at the general case law allegation that mrs pennington actually tried to prevent martinez from calling the police maybe by actually physically taking her phone there is an allegation there's disputed allegation as to that but i don't think the district court ever got to that issue your honor because it decided it based on duty so if you actually interfere with someone and take their phone have you created a relationship that creates a duty the limiting test is whether or not a special relationship has been created or a duty has been created by her actions we know with respect to mr cannington he would have the duties of political to a police officer the district court never got there because the district court decided on grounds of duties i think what you're being asked to do now your honor the plaintiff has really have banned in her arguments as to negligence as pled what's being played now  is a scenario that well if you look at the two general overall california statutes which talk about the duty not to harm another and what you're being asked to do is in shock and style go back plaintiff's complaint and to craft a garden variety cause of action for negligence which you believe should be stated but as they set up their cause of action very factually specific the core dismissed it on  grounds of duty and i don't think it's the job of this court now to go back and skin the entire pleading under f r c p eight to put together a different cause of action than what they alleged and all thank you and some that it was questions thank yawners mention a few points that i'd like to follow up on first we haven't discussed very much judge officer hershberger today our position regarding her is the same as officers and sanders perhaps not nearly as agreed just as officer sanders but if there is a substitute process right it should apply to those actions as well i also wanted to follow i'm sorry are you dan if i want evidence or as of sergeant sanders deliberate indifference sergeant sanders is deliberate indifference is that he was a i believe a thirty plus year peace officer he was a supervisor he was very well trained what's his deliberate indifferen his deliberate indifference was he had an injured woman and an assailant in front of him who had bit it where it had been announced that that person was going to be under arrest and there's an inference that because of his personal relationship with the assailants family he not only negated that arrest but he then reassigned the officer who wanted to do the arrest to write a report that day on an unrelated i'm sorry he prevented her from writing the required same  report and had her do a transport assignment that effectively gave mr pennington and his family twenty four hours to work with to try to clean this situation up and that was deliberate indifference ye because it violates any number of policies and state laws which then can inform this court as to what officer sanders is intention he deliberately indifferent you just disagree with what is what he did he wasn't deliberately indifferent waze he just he did something you felt was incorrect but is that deliberate indifference you are as in the the winning choices you know as in the wood case and cases that have followed it this court  defined deliberate indifference and substitute process context as knowing ignoring an obvious risk of harm to the person and acting intentionally in disregard for that risk and i think that's precisely what sergeant sanders ok thanks i think you're out of time so thank you both sides for the helpful arguments the case is submitted and we are a journey for the day