honor mr hopper mr friedman my name is james clymer and i represent the city of lakewood mayor george mr fitzgerald and mr barrett in this case if there is one central fact in this case and there have been a lot of facts that have been thrown around if there is one central fact in this case it is this no member of a protected class was ever denied the availability of housing the evidence in this case indicates that not one member of the youth three entry program that was run by lutheran metropolitan ministries left hidden villages premises and in fact the l m m population or number of alabama clients in hidden village increased over the years and any fluctuations downward were caused by on funding capabilities there is no dispute about that fact in this case that said the issue before this court i would submit is whether or not there is a need to show a violation of forty two u s c thirty six zero two as a predicate to bringing a claim for retaliation under forty two u s c section thirty six seventeen which is the claim before us here are one of the five claims before us here at the time of the events at issue in this case at least two circuits and two district courts indicated that there didn't need to be a predicate violation there were a number of district courts that held otherwise one of those circuits is now quite frankly rethought its view on that matter i would suggest that in fact there is good reason to require a predicate violation of one of the underlying substantive claims in order to bring a retaliation claim and why is that first of all  nexus between the underlying claims thirty six zero four and the other claims from thirty six zero three to thirty six some of it at least at dances the purpose of the an act which is to ensure that housing is available free of discrimination to not have that nexus lets us stray out into situations such as this case where there is a claim made that difficulties relating to the zoning and building codes between lakewood and the hidden village management has now although met lien morphed in to a situation where hidden village alleges that it was unable to market its property to prospective buyers that has no connection to the purposes of the act to a person who has been denied housing ok so why is that it's a connection that doesn't mean you have to bring a claim under three six zero four i'm not suggesting you do i'm suggesting that there needs to be an underlying violation or at least some showing that some person has been denied fair housing opportunities why wouldn't apply if they don't have to they can be exercising their rights under three six zero for trying to exercise them but maybe they don't they really don't have rights but they're still trying but then the city is threatening interfering with that effort why wouldn't three six one seven apply there is there a way right i mean it look think about it this way wouldn't you say if there was there was a material fact dispute about whether the city officials again gauged in race discrimination related to this housing development wouldn't that be enough under three six one seven for prong want i get your plan to argument that well this wasn't clearly established because there's a circuit split about whether you actually have to have a say three six zero four claim i get that point to point but you're arguing on both fronts and i'm just saying assume for the sake of argument there's a material fact disputes about race discrimination related to the race your makeup of the people in this particular group and what was motivating the city officials want to came to their decisions to not let him open their initially to have all these and you know surprise investigations some of the statements by various individuals is that all shows availability of housing but it did not in this case and i don't think there's any dispute about that well it's true that they got to move in but after that it offers well that was an easy number the number two that it should read the record to say that they were trying to drive them out there were i believe t inspections in the course of issuing the permits i believe that there was a nother comprehensive inspection that occurred after this and inspection add another premises and there was time left in the day the allegation is that yes that was retaliatory conduct directed at hidden villager why are p but the fact of the matter is it didn't result in a underlying violation at thirty six zero four there as i understand it are two lines of cases there is a line of cases the cases that sounds that interference with the  enjoyability of the property can be a denial of access there is another line of cases that says that the interference if there isn't a essentially has to arise to the level of a constructive objection interfering i'm quoting the exercise enjoyment on account of his having exercised these rights doesn't prove you have those rights that use that you're exercising them i  suggest you can have a free standing thanks three six one seven claim there's no suggestion here that hidden village itself when i was exercising rights to housing that they were renting to y our p well they were trying to let these folks live where they thought the program would best be situated eighty percent was one of the figures meant don't we well isn't that the best one for them and don't we have to rely on that evidence and summary judgment i would suggest that's conceded at this point for purposes of us perceiving and that the summary judgment motion yes what's your decide whether as a matter of law there was no race discrimination so what you're saying no severe honor i do not understand standing to be at issue before this court this is an interlocutory appeal on issues of qualified immunity that arise from number one whether or not claims have been adequately made out on the merits and number two whether or not the law was clearly a sta alist in terms of these section one thousand nine hundred one claim there is no evidence in this case that there was an actual loss of a contract i understand the contract section of nineteen eighty one to be what's  issue in this case hidden village claimed that they had several inquiries from interested purchasers exactly why third party standing is one way of thinking about the case and i thought it was the way judge pearson was thinking about the case standing was an issue in the summary judgment proceedings i understand that it cannot be an issue here because it does not involve a matter of immunity or qualified  immunity and so yes standing was addressed your honor in the summary judgment motions below i do not understand it to be an issue here the matter on the merits is whether or not hidden village was ever denied the benefit of a contract and in fact there was no contract actually formed according to the record there were several inquiries from interested purchases purchasers there were some the contract that i understand to have been allegedly interfered with in this case was hidden villages ability to sell its property to and arrested purchasers think they're also saying  interferes with their lease program i do not believe they are and in fact the lease was not interfered with why are p and its presence grew during the course of those events and were a result of why r p s funding issues before you sit out what your have anything to add to your letter on the buchanan point that just seem a little problematic for your side  seller who had a direct interest in a sales contract to a minority purchaser and there was a ordinance that directly prohibited that purchaser from entering her living in the property all right i mean it doesn't make a difference whether it's an ordinance course officials undermining the right to contract correct but the fact that  ordinance doesn't do anything because you can have city officials accomplishing the same thing right you can ok so then that leads you to the difference between a sales contract and a lease you know your honor the distinction that i see here is that there is no suggestion however even view the saudis sanctions that they actually hand the effect depriving equal housing opportunities to any member of a protected class unlike in  hanan where there was an ordinance that specifically prohibited the minority purchaser from living in the neighborhood where the property was sold and quite frankly which would have  prohibited the and it would have allowed a situation where the sale goes forward and it's this white majority block that they were concerned about having black you know individual homeowner it would have been ok under buchanan to let the sale go through but then let this city officials harass the purchaser on that block until they  understand the case law to date that requires some showing that someone has been deprived of an equal housing opportunities and that's map the case here so you can harass as much as you want as long as you're not successful in convincing them to move out you have not acted unlawfully under the way the statutes are written i understand that to be the case i'm not suggesting that that would be admirable contact on the sas thing but that would be moral conduct but under the answer to a loaded question well why don't we you'll please the court my name is rich auburn along with avery friedman we represent hidden village l l c if i could break down what the city of lake was actually arguing here they have four points legally on appeal one is that there a requirement for predicate violation of three six zero four in order to maintain a three hundred seventeen claim i e we have to establish that housing was made unavailable that's point number one under the one nine hundred eighty one claim they claim we have to show that there was a breach of a contract under i see that housing was made on available under one thousand nine hundred two they contend that we have to demonstrate that there was an adverse housing  action that housing was made unavailable and then finally under the fourteenth amendment there are one hundred eighty three claim they claim that we can't establish our claim because we have no racial identity and argument that they did not make it the lower court it's important to know what argued in front of the lower court with respect to these four claims on that one and i'm a little skeptical of his i inclined to agree with your three six one seven point about being a free standing claim i'm a little skeptical of the prop two point i mean that there's a split of authority i thought that was a pretty classic setting for getting qualified in allow me to address that my opponent actually misstated what the state of the law was at the time that these actions occurred there was they rely heavily on the h l case which was a two thousand and nine case that post dated their conduct a relied upon the  halperin decision the help and decision did not actually find that there isn't an individual three six seventeen claim they questioned whether there would be about three six seventeen claim but because neither party challenge the  regulation they let the three six seventeen claim go forward the cox case that a h l relied upon was decided in two thousand five predating the x in this case but cox did not involve a three six seventeen claim at authority develops and continues after the conduct that helps the city officials well i realize that it's a ratchet that maybe seems long fair that it doesn't go the other direction but the reality is if the split of authority if what they did is later vindicated by it growing deepening split of authority that helps them on the reasonableness point i would agree with that and freeze in time it back i get your i get why you're doing this because from their perspective they're allowed to do do that very thing but this is qualified immunity here but let me address that on two points because i agree with that general proposition but i don't think that it's applicable here for two reasons one is i don't think the that you're getting a growing split i think you're starting to see a cut coalescence of opinion that there are thirty six seventeen claims independent of a predicate three six zero for club second but more importantly even a clear there is no real reading of three six one seven that would tell the city officials that it is ok to take these steps to drive wire p out of the city of lakewood on the basis of their race and then to claim in litigation that we didn't know if we weren't successful but it was a violation of the law every act that these city officials took construing the evidence in the light most favorable to us i mean you can spend your time on this one but  i think the point you're making with that is of course you would have a three six zero for clean hair but that just wasn't as broad but not so we brought up three six seventeen claims but the acts of the city officials cannot be construed to be they can't argue that they didn't believe that every predicate act they took towards this wasn't a violation of the fair housing act they just weren't successful in driving why or piano and forget the split respect that does help the city officials in prague i would i would agree that it would help them on pronk to if there wasn't decisions out of the northern district of ohio and southern district of ohio already finding that you could maintain it as three six seventeen claim without a predi well i don't know of a six or a good case that says it turns necessarily on but if if the sixth circuit hasn't had an opportunity to address it that doesn't mean that the law isn't clearly established you have a statute that is i think unambiguous you have to district court decisions one in the northern district one in the southern district that hold that you don't need a predicate violation but i understand your point but those arguments with the i understand point three six seventeen but those arguments don't fly with their nine hundred eighty one one thousand nine hundred two and one nine hundred eighty three claims the lutheran ministry reached out to lakewood at the very beginning because they wanted to have a good relationship they wanted to be good citizens they don't want to sue the city in lakewood because they want to live peacefully within the city of lakewood and so they they were uncomfortable now interestingly if the lutheran housing minute if lutheran ministry said sued then under the defendant's one thousand nine hundred three argument because they lack a racial identity they wouldn't have a equal protection claim under the fourteenth amendment but the reason they didn't is because they didn't want to be in an adversarial position with the city where they laid it pretty easy for them to sue on behalf of their participants in the program well not according to the racial identity argument i agree with you the case law but the case law establishes that you don't the racial identity of a corporation doesn't prevent suing for equal protection phylicia is but that's the argument over that the thought that the question to help us with this when you look at you know the normal rule is to have the person directly injured susa that neither the participants in the program or the program itself than the court says and there's just cases all over the place it's a well you know depending on how the statute reads and depending on whether the individuals actually injured can sue whether there's impediment to suing that often a fax where they were let in this case the landlord in other cases someone else to the silly and your idea well they didn't want to worsen their relationship with the city by suing them i said applies to everybody i'm just not sure that house wasn't panning if you look if you look at this particular program at one of the reasons if you look there's the tenants are in the program for a month or two and they might be subject to a single act and being cited for having no license on their bicycle or they might have had their apartment and suspected during this group session but for the most part each one of those individuals would probably not be able to identify as discrete set of facts that was support to a fair housing violation as against them individually then you move to to the wire p program and the wire p program their tenants are being harassed they probably have a stronger claim globally because they can cobble together the harassment that has been directed at them by the police and the in the inspections but the zoning issues were directed at hidden village as an example and p program because of their desire to live peacefully in the city of lakewood didn't find it was in their best interest to pursue it the individual tenants are really not in a position to pursue it hidden villages in a unique position because interrupt injury it's a direct injury to two hidden village as a result of the discriminatory acts directed at his direct injury the fact it's more difficult to sell them that's just that's the complex or whatever the act that's actually just part of it there is evidence that they had letters of intent that have been extended and then withdrawn when they disclose the issues between the city of lakewood and the wire p program but there's also an increased cost of business there's the retention of lawyers to deal with the zoning issue to deal with the citation issues to the stepped up enforcement actions against the city once the hidden village has increased the cost of doing business and ultimately they're at risk of losing forty percent of their program if these efforts continue to drive them out and they are successful not playing their party standing well i believe we are claiming third party standing but we are also seeking damages that we have sustained as a result of the actions of the city but we are seeking to enforce the rights the the fourth and fourteenth amendment rights of the tenants the rights to be free from discrimination in one thousand nine hundred one in one thousand nine hundred two and under the fa housing act are you forcing your fourteen we are technically speaking we are enforcing our fourteenth a memorised because we are we're entitled to equal protection in our efforts to contract with the to be canon i think that sullivan and barrow's also apply because you're talking about equal protection violations directed at african americans that result in direct harm to a party who had a contractual relationship with that third party buchanan and you could argue that buchanan decision found an equal protection violation for buchanan you could also read buchanan to say that he was enforcing the fourteenth amendment rights of the person who had the contract with that particular person was using the ordinance as a defense and was not asserting their own fourteenth amendment rights and so what buchanan stands for in my estimation is that that you have the right to enforce those fourteenth amendment rights both on behalf of the the individual the african american person who you have a contract with but also because you're suffering damage as a result of that deprivation with respect to the issues of adverse housing breach of contract under one thousand nine hundred one makes it very clear that those statutes are broader than just the narrow reading that the city of lakewood has subscribed to them for example the  statute actually defines what it means to make a contract under section b one thousand nine hundred one it defines making contract as enjoying the full benefits of that contract so it is not simply that we need to show evidence that tenants were left and as a result breached contracts with with hidden village if we can demonstrate that those tenants whacked the enjoyment of that contract that they entered into we have a  one violation what they ask this court to do in large part is revisit the factual determinations that judge pearson made with respect to the discrimination itself that's the reason for the eleven page statement of facts in appellate brief to explain how all they were doing was attempting to enforce the zoning code and to exercise their police powers for the health safety and welfare of the citizens but in reality the evidence in this case is fairly profound and when construed in an evidence in a light most favorable to us that discriminatory intent was at issue in this case you know that how do you read their supplemental brief about challenging whether there was actually race discrimination of the predicate of all of that how do you leave that there i read it exactly the same way you do because i think it's actually consistent with the way they've posher their brief which is they're challenging we have a claim and an injury and that we can proceed under nine hundred eighty one eighty two eighty three and brother what they argue is that we didn't prove race discrimination but considering the evidence in the light most favorable to us in this case judge pearson already found that we did satisfy our burden in that regard we're allowed to just see whether there's a material fact dispute about whether race discrimination exists right once you conclude there's a material fact dispute and that should end from a qualified immunity issue in this race discrimination correct my time is almost up if there are any other questions that i can answer be happy to do so well next time would make it easier if you had another plane as i was just from a work of boyd and perspective well i would have been happy to have another plan if i had parents that equally one of the individuals employed by wire p contacted me after all of this became public after judge pearson's ruling and i thought it would be a conflict to get to represent her at that time and there were a lot of other complications but ok thank you to clim challenged on summary judgment the plaintiff under somewhat texas vs kept track court is required to show a material issue of fact on each and every element of their case and that would include that they have a racial identity that puts them in a qualified immunity i do not intend to suggest to this court that the purpose of qualified immunity is to permit a city official to engage in any conduct they wish no matter how discriminatory or no matter how rotten as long as it doesn't drive a person out of their out of their abode but what qualified immunity isn't tended to do and what city officials need guidance on is the degree to which they are permitted to enforce zoning and building ordinances  buildings or above goods that they happen to have a say i would say you're probably right they had the right to say well you know this doesn't look residential that strikes me is that probably would be legitimate to say that but hey th zoning board said sorry you're wrong in that and not in the case they could have just stopped there but if you read the evidence after that in their direction it doesn't look like they were willing to go along with that it looked like they were still scheming to come with all this creative nuisance let's document everything she there are a lot of blacks there in the program that are full there were discussions among city officials who i believe were testified to about what should we do now however there were never any further actions taken on those discussions at least on the zoning front there was a subsequent building in that's going to do with zoning from you well you've  lost and you didn't appeal so that's the end of that so why would you continue to why would you have these spot investigations and why would if eighty percent of the members that program are african american the other twenty percent of white why would only be african americans that complain about harassment why is it that none of the other probe participants in the program that were white also complained about police harassment and the only evidence of complaints by the tenants themselves is hearsay your honor it was related by mark  er and candy weathers who are administrators of the program who did not actually witness the events who claimed to have heard complaints from their clients about harass how is it hearsay for an african american tenant to say i was being harassed by the police that's there describing what they saw but that is being offered through the testimony of ms withers and mr brown were who did not witness the events and it's being offered to prove the truth of the matter asserted that there was harassment of african american tenants but it's not those tenants testimony we have in this case it's the testimony of mr withers and