claims that arise directly from the may fifteenth two thousand and twelve incident involving mr mulligan and the l a p d i'm going to start first with the retaliation it was an error to take this case away from the jury the conduct in this case is truly shocking the highest levels of our city government the l a p d going all the way up to chief beck the city attorney's office and the head of the police litigation union and what evidence was there the chief that was involved in the decision extensive evidence first commander andrew smith in units work at all they didn't know it existed they didn't need it it was all a essentially a ruse to get the tape and get it through the l a p d to the police union similarly there is an october third meeting which is critical i involving chief back his chief deputy rick shakeups a gentleman named gerald celente who is the head of constitutional policing and i let the centrally chief back for legal advisor and captain lopez the head of f i d as well as commander smith the head of media relations and they're there discussing the glendale tape and whether or not they want to release it or not so let's assume that you know the tapes you know sort of should not have been released but it was it's important for many reasons first of all it shows that the l a p d violated its own rules acting class or it violated its own rules go ahead this is a constitutional issue yes and the retaliation here is all three elements are met because this is a plan that would chill  reasonable person's free speech and it shows retaliatory what has the rights then i mean it seems to me that when you're dealing with this type of particular situation we have speech against speech that these things and it is whether or not there was a threat coercion or issue there was that the plaintiff couldn't show a tangible harm it's as scolding threatened to transfer just enough and jenny says defamation and image to reputation is not enough right and here we have the undisputed fact that as a looking at i would agree and there are very limited amount of cases that deal with this type of retaliation climbed a great body of case it comes under the public employees down there but and jenny wasn't she she was she ended up and eithe outside of a tangible interest in this like state employment determination contacts yes this case is a lot like men to see where the ninth circuit said that the law enforcement there in retaliation for environmental activists criticizing their informers for from an action held a press conference accuse the activists of criminal conduct and that was actionable with halle a shooting the same type of issues here and it's not clear speech i mean they did this whole orchestrated series of events to get this tape in existence correct is that your position that it should have been released that all the conduct in the release was a violation of their own rules in the ninth circuit has felt that it's an inference of retaliatory intent in and of itself you say that the tape should not have been released by antibody that would be a release of the tape is sufficient to you know allow this case to go for when i don't there might be a hypothetical set of circumstances where the release could have been valid but here that's not what happened that  something like that to justify the release of the tape otherwise it's a secret it was confidential by their own rules i mean this is really rules but we're told that the constitution i just wonder what you're telling me that if there's a violation of a local police department that is sufficient to allow the case to go to the jury in a constitutional issue of retaliation you know what i'm telling you is that the evidence here in summary judgment all the problems we have protected conduct conduct which would show a reasonable person speech in retaliatory intent and the timing is important this all started on october twelfth your client the only one that's allowed to speak to the press he's he's not but he's wise and the other side allowed offer up what they have to say well first of all the the bill of rights  it protects individuals from government oppression the government doesn't have a free speech right now it's a muzzle on the government the government officials are not allowed to speak back in this case the police officers are entitled to speak back they're not entitled to retaliate for someone's exercise of their right are they are they retaliate in on the exercise of rights or retaliating and responding to what he said the evidence shows a sequence of events which belies this idea that this was purely felt defense on oct aug twelfth they leaked the confidential arrest report press in violation of their own rules so it's back to their rules it just shows that this idea that mr mulligan invited these fishes attacks on his integrity in the public ground it's false they leak this report mr mulligan exercise his constitutional right to pursue a civil claim and they continue to lick their own records but then after august there was no press mr milligan had made any statements it's critical because they knew that th documents show that early in october chief beck wanted to see what skip miller mr milligan's new attorney would do and october eleventh the correspondence shows that the police union new stepmother was not going to litigate this in the press wasn't going to make any more a criminal activity i mean this goes and this is you could have a state defamation claim i can see that i guess my question has what makes it a constitutional claim because it is predicated on retaliation yes i know all they said gave was each their own version of events they were leak material whatever it is the reports of the press and i don't see anything in our cases that say that that is conduct that can be prosecuted under the constitution as a first amendment retaliation i think mendocino is right on point your honor that is a press conference by law enforcement accusing these activists of criminal conduct i mean here i think we have a broader course of wrongful behavior mendocino is just a press conference and the court here said that summary judgment is improper that's a viable first amendment right and the deterrence tests have proven very adaptable to circumstances i think it's a mistake to exploded right but they had a history of criticizing law enforcement i mean that was their mission essentially as environmental activists so so there was speech in that case but here the release of this press release coupled with th start crafting a special standard because speech came first you're actually going to be excising an entire body of first amendment activity that fits that first prong i mean most of that protected conduct is going to be speech related rights you're going to often be doing that by using speech and the question is did you then get subject to conduct that would kill you a reasonable person speech and was it based on retaliatory intent now that they are the police union makes a bunch of arguments about the first amendment protects their conduct but there's extensive evidence of joint action those arguments don't work here they they say well we had other motivations again intent that's a factual issue the city says well now liability doesn't work that was an issue the district didn't reach and for good reason it's admitted that she fact is a policy maker of the city his fingerprints are all over this from inception to release he's in these key meetings they're discussing t fact no the union has a tape commander smith said it would have been released without chief back so they were clear basis for policy making status as to now and also point brant who runs the city's police litigation and he's the one who leaked the tape after hours on his personal e mail now that was all to try to hide the l on pre force conduct that negligence case should not have been decided on summary judgment but now that we are on appeal and we've got the excessive verdict judgment here excessive  argument is that it was way because this is a different looking at the negligence leading up to the use of force was not raised to the district court i don't think that that's an accurate characterization of the record i think the negligence claim that went told to stay for under threat of death essentially and causing him to flee in fear and the ultimate injuries all of that was part of the negligence case the district judge sort of made a perplexing ruling that there were troubling issues of fact on excessive force but not on negligence the appeal has been focused on the fact that one regardless of whether or not the jury verdict stands they didn't decide the broader course of police negligence and hayes shows the inquiry is broader that the fourth amendment police set off a set of events that caused harm and therefore the police negligence claim if it's viable and really should have gone to the jury but certainly can go the jury notwithstanding the excessive force for it i don't think it's an issue where retention claim was deemed viable for the purposes of summary judgment but that was subject to a bifurcation ruling and never got to a jury that claim should as well as far as excessive force judgment itself the trial was an fair playing field you know the officers went to this jury and they said mr mulligan was engaged in carjacking and robbery and all of these lord details of alleged crimes they were citing the penal code to this jury and the fact is that mr mulligan was never prosecuted for any crime at aung not a felony by the d a and not a misdemeanor by the city attorney who rejected the case twice and this actually goes to the essential issue of credibility the jury had to decide whose account to believe mr mo an or these two l a p d officer and who were dressed up as heroes and who were presented to the jury as having this impeccable credibility the fact that they describe these crimes that mr milligan was never charged or pursued on went to the up and counsel said hey they're opening the door here the court said no it's not relevant but it was relevant it was relevant to the credibility of their depiction of the events the police sources actually say he was rushed to they didn't say he was arrested but they said he committed the crimes they described him as if he was engaged in all of their services no they didn't make that specific statement but they paint this picture for the jury and the jury doesn't hear the truth similarly they hold officer nichols up like he's the officer of the year and he's a known rapist he's subject to multiple on duty rape allegations years before the milligan incident the l a p d knew about that for thing to see just block the evidence and the reason it was important is because mr nichols went to the jury and said he was asked about all the time he had with officer miller to discuss what they were going to say happened that night they had hours before they ever were even interview make your door at three in the morning the city's attorney said this is about credibility who are you going to believe why would mr nichols ever engage in the sadistic conduct was part of the sadistic plan that the dominance and the power and the control we see in his on duty conviction it just shows it needs a compelling connection between the alleged acts and events at issue here and went straight to his motive and intent there are many examples of an officer disciplinary record being highly relevant and under criminal prosecution but even then there was extensive evidence there was civil litigation pending in their own investigative files so the multiple women with independent accounts of the same type of conduct mr mulligan was subjected to and that met the standard for admissibility taking between seven and ten minutes and then mr alexander cote is representing the union and i take the remainder of the time to walk or show twenty people my thanks your honor hard hard to know where to start here but on the background of the litigation and it seems as if the characterization of counsel is that officer nichols was operating alone in the on this evening where excessive force was alleged there were three other officers involved at that at that point in time two other officers and mr and officer nichols had to actually use the full force of their weight to sit on him in order to restrain him and so it's not a situation first of all where a tually officer nichols had an opportunity or any any other kind of situation with presented itself to interact with that with mr mullins directly and on i want on one basis but for of for itself of the federal rules of evidence should preclude any evidence of bad character or legit bad character when it comes to persuade the jury that the actor had conformed to to that bad character and later subsequent actions he was never he has never been convicted these still are allegations there was no education of any kind and in fact it's a very dissimilar set of circumstances here you have an excessive force case versus some some charging allegations of sexual crimes while while working and in our contacts unit in hollywood so we would we would respectfully submit that there's there's no basis in the law for there to have been evidentiary ruling that that evidence should have come in it would have been very confusing to the jury it would have taken undue amounts of time there would have been a for three or four other cases that would have had to been tried within the context of the yes of force case and there was no literally there was no element in excessive force of motive or intent and that apparently is what the plaintiff counsel his argument her papers that could have been the motive for allowing that kind of evidence i think it was perfectly correct and within the discretion of the of the district court to preclude that evidence the police negligence cause of action we have a situation here that is very unlike the hayes case where the continuous flow whereas here you have the allegations that negligence took place at placing mr mulligan in a motel for his for his safety to get him off the streets after they had received multiple nine one one calls about him trying to break into and automobiles and other witnesses including an officer at the city college and some of the nine one one calls that indicated that he was incoherent and  talking into the air and yelling and screaming the officers put him into their vehicle they found his automobile they helped him find his identification they found three thousand dollars worth of crumpled up bills in his car they called one of their supervisors to make sure it was properly counted and then accounted for and they drove him to a motel because he would not tell them where he lived and he would not tell that they would get any names of who they should call to to retrieve him an hour later is when they discovered him again this time attempting a carjacking and also attempting to break into parked cars they asked him to they insisted that halt and he fled and then he attacked them when when he was cornered under california law including the california supreme court case of sue over says general motors there are doctrines that are very well accepted for interceding superseding causation there's two situations that are mentioned by the supreme court and have been part of california law forever and those are the situation where the event would have happened  force negligence why can't they proceed on the hand given that we're taking their facts as being with x i think in some circumstances and for example the hayes case they i think at the california supreme court decided in certain circumstances they could proceed on a police negligent negligence claim for relief on a pretty force activity and pray for some allegations of negligence however the nice work itself has indicated that causation can be determined as a matter of law and that it's the the court itself that determines when it can be determined as a matter of law and i think here we have a total disconnect between the the the admittedly peaceful drop off at a motel and a second scenario where force was required with the intervening superseding actions by by the plaintiff himself and by the scenario that they at least discovered that somebody was attempting it hard jack  morning your honor supplies talk on behalf of the city of los angeles and i would like to i don't want to repeat my brief so i thought i thought it was just address some of the points that were made by plaintiff's counsel here and really revert you back to the issues the first thing that really struck me is that plaintiff counsel argued that this alleged retaliation was done by the words use were the highest levels of government and that the l a p d leak this police report and i just want to emphasize there's absolutely nothing and i mean nothing in the record to connect any of this what if there were would it make a difference i well ultimately would not because it was not first amendment we tally for purposes of the city the key issue for us is whether or not there's more now liability it's where a well established or the city is not liable for need you know we were to disagree with the termination below then we would have to address i guess arguably the model claim absolutely i believe there was no first amendment should at all and that is an issue that was posted on that issue because i'm curious as to where one draws a line to try to separate how far what can go to qualify whether it's a deterrent standard with there's a threat in the nation's there that i'm not so clear what the rights there that is that should be applied to  line was not breached here really when you look at the record there's very inflammatory accusations made in the briefs but then when you look at the actual record it's just simply is not there what you find are a couple of e mails what is cited for this very extreme allegation that the l a p d leaked all this information to the press you look at the citation it's actually just the articles the published articles there's absolutely nothing to say who the source is or more importantly to connect questions correct the leap you focused on that issue with their brief i would also like to point out that the preferred and the hayes argument was actually not addressed in the opposition to the way it would have come up would have been the opposition to nichols m s j and that was of his argument was not fleshed out but even if they didn't if what if that argument here i would say yes because it's not an issue that they're raising it on the issue of undisputed facts not as a janov issue of law but that was it was not issue it was not argued at all and the district court did not have an opportunity to consider it on the negligence claim the key issue for the city is the negligent supervision plan and i think even the plaintiffs would acknowledge that the jury finding in favor of the officers on the excessive force means the negligent supervision claim really just simply cannot proceed at all against the city the last two points that were made the evan ensuring area errors seem to follow with theme that i'm seeing in this case which is this the theme is that allegations somehow are supposed to rise to the level of actual facts that's just not what the law allows and in each of these instances the fact that mall again was not charged criminally with breaking into cars and carjacking does not mean in any way shape or form that these officers did not actually observe him doing that there is a broad myriad of reasons why charges are not filed against individuals the fact that they were not filed it is not evidence that that conduct should not occur and the fact that mulligan now wants to use that as evidence in that way it's just simply inappropriate and it's very similar actually to the secondary evidentiary issue which is that the issue about nichols and the allegations against him relating to these sexual assault yes these are allegedly heinous crimes but the fact that they are alleged is not the fact that they happened and the l a p d was investigating them with the time the result of that investigation was  they could not resolve it she use that as evidence that she is the serial rapist it just doesn't rise to that level and even if it did by the way as mr zeman pointed out it's completely discreet behavior so you it's really textbook character evidence you can't bring in these this prior act evidence to say oh he was doing these things with these males so that means on this night he also beat up mr maule again we have a jury verdict we the jury has heard all this the jury has spoken the jury has rejected all of this and now on appeal we need to respect that jury's finding and mr mulligan is trying to do that finding that he doesn't like really based upon innuendo and speculation and assumptions and those assumptions are always premised upon allegations good morning honors in may please the court rangel center cody and i represent the police protective league its president tyler eyes and its media consultant eric rose and i want to go directly to judge blocks question about what the standard should be here the supreme court has been crystal clear that when it comes to truthful speech on a matter of public concern the first amendment cannot caption its censorship i referred to the party case on that point in our first to the snyder case and that never said that and the no circumstances can you have retaliation of a constitutional nature that never really went that far the supreme court has never said that in the context of retaliation claim that true but in the bar nicky case it was an attack in the context of another federal statute the wiretap act and the court found that the constitution the first amendment her have vented the application of the wiretap back to truthful speech on a matter public i'm sure that's basically correct as a general proposition but there must come a point in time when you can't count the neds you know abusive behavior on the part of the saudis it's can't be an open field it's got to be allowed to be drawn someplace i agree there's a line to be drawn it went well i'm drawing the line is where the supreme court has drawn a line which is on truthful speech on a matter of public concern if the speech was not truthful that would be a different aspect of allegations here that they did so many things i think your adversary pointed out that there were press releases and that there was a concerted effort here to that but you're saying that after that there's no holds barred you can say do anything you want because of the fact that the foundation was predicated upon speech there's two speakers and there's two aspects of speech in this case and i want to make sure that we don't confuse them there's mr mullins accusation that the police officers lied in their arrest report and that speech i'm satisfied can give birth to you know so quote the lack of that phrase retaliatory constitutionally permissible retaliatory speech that i could accept but you know what how b there's some allegations here that they did much more than that there's actually no allegation that the police union did anything more than release the publication there's a suggestion that they went to great lengths to try to obtain the tape from this from the police department but all those efforts were fruitless we know how the police union got the tape they got the tape from the city attorney and it with respect to the joint action question which has been raised it's the evidence is clear that they were the parties were at cross purposes when it came to the publication of that tape when the city attorney provided the tape the evidence is clear the city czerny said to mr i'm the president of the police union don't publish this pate in fact don't even let anyone know we have it checked review of war there accusations here that he was a criminal that he was a such as where those opinions are hyperbolic rhetoric where there be a proper injury from the defamation in the ninth circuit as in the supreme court there is heightened standards required for defamation in the context of public issues these are all issues that were never  private facts can cause of constitute retaliation for first and that retaliatory action that's right so how do you distinguish block or would you think it's wrongly decided i said in the beginning that what we're dealing with here is truthful speech on a matter of public concern all this was details about her rape but presumably truthful there is no indication that was incorrect the issue here is public concern and block the plaintiff was a rape victim she accused the sheriff of not diligently prosecuting the claim in the six circuit started its analysis by saying the sheriff has a right to respond to those criticisms but he doesn't have the right to do is disclose irrelevant humiliating and confidential information in other words he didn't have the right to disclose information that was not a matter of public concern or it was a little responsive to the charges that he wasn't best games i'm having trouble with that line because he was describing the details of a crime that was  even the same sort of crime mess that rape in the black case in the black case the sixer it was very clear to note that the speech there by the sheriff was not responsive to the allegation that he wasn't diligently prosecuting the rape in this case the recording that was released by the police union directly refutes mr mulligans accusation that the officers lied in the arrest of so you're saying it has to be responsive that that's another requirement in order not to be actionable is that this at your position it certainly is helpful i don't think it's necessarily required in all circumstances but that is the way to distinguish block i think if block were to say to be interpreted as standing for the proposition that speech on a matter of public concern can be shut down by someone who doesn't care for it or found it unpleasant or uncomfortable that would be a problem under the supreme court authority i think the reason why we with the way we distinguish block is to note that it was not a matter of public concern the details that were disclosed by the sheriff as a by the plaintiffs in that case were so gruesome and so shocking that she hadn't even told her own husband about them this is not that kind of a case at all this is mr mallock in having a speech excuse me having a conversation with a glendale police officer in uniform on broad daylight in front of the police station it doesn't even come close to rising to the same level that's why block is different is simply not a matter of public concern the thread that i find throughout mr briefing is that my clients don't have a first amendment right in this case because their speech caused him incredible pain or as he put it in a brief devastating harm this is the exact argument was rejected by the supreme court in snyder supreme court noted in that case that the westboro baptist churches words in that case caused incredible harm and pain to corporal snyder's parents but the chief justice writing for the majority concluded his opinion by that we cannot react to that pain by punishing the speaker as a nation we have chosen a different course to protect even hurtful speech to ensure that we do not stifle public debate as just as judge clifton noted this entire an attempt to stifle public debate is to prevent anyone from responding to mr mullins allegations that the officers lied in the police report and the first moment cannot countenance that i see that amount of time then for the questions