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| Sophia Wilansky. Nov. 21, 2016 |
Listen: Today Federal Appeals Court Hears the Excessive Force by Law Enforcement at Standing Rock
By Brenda Norrell, Censored News, Dec. 16, 202
ST. PAUL, Minnesota -- The Eighth Circuit Court of Appeals heard the case of Sophia Wilansky today in St. Paul, Minnesota. Wilansky's left arm was blown apart by an explosive fired by law enforcement at Backwater Bridge at Standing Rock on the night of Nov. 20, 2016. The MacArthur Justice Center filed the civil rights lawsuit, which names the law enforcement who fired at Wilansky, and those who gave the orders.
Wilansky's attorney argued today whether she was fired on while obeying orders and dispersing. The argument focused on whether she was struck when she stopped to pick up a piece of plywood as a shield, or whether she was fired on before she stopped. Wilansky's attorney said law enforcement rapid-fired on her while she was running away. She was struck by a flash bang type explosive fired from a shotgun. Her attorney said law enforcement laughed at her after she was struck.
Listen to today's oral arguments:
https://media-oa.ca8.uscourts.gov/OAaudio/2025/12/241911.MP3
Standing Rock: During the resistance to the Dakota Access Pipeline construction at Backwater Bridge, law enforcement blasted water protectors with water in freezing temperatures. Sophia Wilansky was critically injured when she was struck by law enforcement's projectile.
The civil rights lawsuits of two Standing Rock Water Protectors who were critically injured by the excessive force of law enforcement will be heard by a federal appeals court in Minnesota during December. Marcus Mitchell, Navajo, was blinded in his left eye after being shot by police while peacefully protesting the Dakota Access Pipeline. Sophia Wilansky of New York was blasted with an explosive by law enforcement that tore apart her left arm. Both were targeted at Backwater Bridge. Both were denied justice by a North Dakota Court.
https://www.courtlistener.com/audio/101847/sophia-wilansky-v-morton-county-north-dakota/
:05
Good morning, Your Honors. Thank you. As described in the briefing here, there are a number of
00:15
legal issues with the district court's decision in this case, but I think the most straightforward
00:21
basis for reversal here is that the district court failed to make all reasonable inferences
00:27
in Ms. Wilansky's favor in deciding a 12b6 dismissal. That's a plain vanilla violation
00:34
of the 12b6 standard. In particular, the court ruled that there was no seizure because the
00:42
officers did not have an intent to restrain Ms. Wilansky, and instead that they had an
00:49
intent to disperse Ms. Wilansky, and the court cited the Torres case.
00:54
But the court made numerous inferences in the defendant's favor in concluding that the
01:02
officers intended to disperse, not restrain her. And just to paint the picture, this case
01:08
involves a situation in which there's a bridge, and at the north end of that bridge is a huge
01:23
across those barriers that stop anybody from crossing it. On the law enforcement side of
01:29
that barrier, there's then armored vehicles and...
01:32
I don't know. How many pages do we have here explaining all that, including the careful
01:38
district court opinion?
01:40
Absolutely, Your Honor. So there are several different facts that were pled that I think
01:45
make it, you know, if you make the inferences in Ms. Wilansky's favor, make it quite clear
01:50
that there was an intent to stop her or injure her rather than an intent to disperse her.
01:56
The first is that the officers attacked her, you know, so rapidly and were firing so many
02:03
bullets at her that they effectively trapped her behind the...
02:07
What does the record show on that? I mean, the procedure is confusing to me here. I mean,
02:10
there's argument in the briefs about that this rapid fire wasn't alleged in the original
02:17
complaint. Can you help me out? Is that in the operative complaint, the rapid fire?
02:23
So I believe it was in the original complaint, Your Honor, and it was certainly in the summary
02:28
judgment brief.
02:28
Was it not in the deposition? Is that correct?
02:31
No. The issue in the... I think the issue that the defendants have raised about the
02:35
deposition is a question about whether the officers continued to fire at Ms. Wilansky
02:39
while she was retreating from the barricade.
02:41
Is that what you're talking about now, or...
02:44
No. I'd say there's two stages here. The first is, you know, they say, we see you under
02:50
the truck, move away from the truck. Mr. Joachinson says, there's nobody under the
02:55
truck. Rather than replying to that, the officers just start firing at them rapidly.
02:59
How's the district court supposed to deal with the inconsistencies between your pleadings?
03:06
Between the first...
03:08
The first complaint and the second complaint.
03:10
So the first complaint was filed before we had any discovery.
03:15
This was such a moving target as you presented it to the district court.
03:18
I would say that when the first complaint was filed, we had limited information. We
03:24
had had no discovery. And an example of that is that it was a John Doe complaint. We didn't
03:28
even know who the officers were. We didn't know... We didn't have any video. We didn't
03:33
have any audio.
03:34
Well, that's true. But I mean, and the district court allowed discovery and then allowed you
03:39
to amend the complaint and add the identity of the officers. But I think one of the district
03:43
court's issues is the allegations changed as well. And setting aside the amendment of
03:48
the complaint, I mean, did your allegations substantively about who fired when and how
03:53
often change from the first complaint to the operative complaint?
03:56
I don't believe so, Your Honor. I would say the only possible exception to that is the
04:00
additional allegation that the officers continued to fire at Ms. Walensky while she was running
04:07
away.
04:08
There was an inconsistency as to whether law enforcement was shouting both at her and someone
04:12
under the truck.
04:13
Okay, so...
04:15
That contradicted her evolving story throughout litigation that command was not directed at
04:21
her. And then there was inconsistent allegations as to whether they fired at her while she
04:27
fled, which contradicted her initial, her original complaint and deposition.
04:31
So it sounds like there's...
04:32
That's my take on the record.
04:34
Okay. So it sounds like you're raising two issues, Your Honor. One is about the nature
04:38
of the command that was given to her, and the second one is about whether the officers
04:42
continued to fire at her while she ran away. On the first issue, I mean, there is audio
04:47
of what that command was. And it, you know, I don't have...
04:50
Does anyone dispute that that's properly before us in the motion to dismiss? I mean,
04:54
I know it's discussed. I can figure out if anyone objects to that.
04:56
I don't object to that. Absolutely, we are, you know, we stand behind what the audio says
05:02
in terms of what the instruction was. But I think that audio, you know, it says, we
05:07
see you behind the truck and under the truck. Get out and, you know, move away from the
05:11
truck. It was not... You know, it seemed to be directed at somebody who was under the
05:15
truck. And there was nobody under the truck. And certainly Ms. Walansky and Mr. Joachinson
05:19
were not under the truck. And that is why he replied to it and said, there's nobody
05:24
under the truck. And I think that like fundamental characterization of the events has not changed
05:30
between the complaints. If there was slightly different rhetoric used in the two pleadings
05:34
about it, it was not the intent that, you know, Ms. Walansky's narrative about what
05:40
happened there changed. It has always been her position that nobody was under the truck,
05:47
that the police appeared to seem to think that somebody was under the truck. And so
05:50
they responded to say nobody was under the truck. And then the police started firing
05:54
at them rather than...
05:55
Well, they said to leave, right? They ordered a dispersal, and your client didn't disperse.
06:01
I think the issue, though, is that the instruction indicated that the reason for...
06:07
Well, that may be... Your client may have misunderstood or properly understood the instruction.
06:11
But the question is, is the reasonable... Is the officer conduct reasonable at that
06:15
point, right? And they issue an order. Your client may think it related to someone else.
06:20
She didn't flee. And you're saying that's an unreasonable inference, that that was objectively
06:25
reasonable?
06:26
I think what we've pled is that they did not give her enough time to leave before they
06:31
started firing.
06:31
What law... I mean, where is the legal authority that says they need to give her... How much
06:35
time did they have to give?
06:37
I think they just need to give her enough time to comply. I mean...
06:40
What's your best case on that?
06:43
I think it's... I don't have a case that's specific...
06:47
Your brief is shy.
06:50
Well, let me...
06:51
It's an avoidable case.
06:52
Let me back up, because I think, Your Honor, whatever you think of that initial
06:55
round of firing, at some point they hit her, and she started running away, right?
06:59
And then she ran 30 yards away from that truck. That is undisputed. And that officer
07:04
shot her with an explosive. And so whatever...
07:08
So let me ask you about that. What was the... I assume you think the district
07:11
court made an unreasonable inference at this point. I mean, what does the record
07:16
or what does the pleading say about when that shot was fired?
07:20
So she was 30 yards away. So she had complied with the order to move away from
07:24
the truck. She was clearly not... She was clearly unarmed, and that was established
07:29
even...
07:29
Yeah, I know that, but the timing is what I'm interested in.
07:33
Okay.
07:33
I mean, because there seems to be some discussion about whether she was just in
07:38
the process of fleeing or whether she had stopped and was gathering defensive
07:43
materials or so. What does the pleading say about the timing?
07:47
Okay. So I think the pleadings say that she was hit the second she stopped to
07:53
pick up a piece of plywood as a shield. And I think the reasonable inference,
07:58
and certainly the inference, a reasonable inference in her favor, was that given
08:02
that, you know, Mr. Moll was 30 to 50 yards away at that point, she aimed and
08:07
fired at her before she had stopped.
08:09
Okay.
08:09
Okay. And I think the... We tried to make that more clear when we amended the
08:15
complaint, but that additional clarity there was struck by the court, you know.
08:20
And so when we filed the second amended complaint, which the district court
08:24
basically, you know, told us exactly how we had to write that complaint, that was
08:28
removed from that complaint. But I think even under the second amended complaint,
08:33
even the way the court wrote it, right, I think that it is still clear that the
08:38
reasonable inference in Walansky's favor is that Moll aimed and fired before
08:42
she stopped.
08:43
Where do you come with the aimed inference?
08:47
Well, he hit her, so the inference is that he aimed at her.
08:50
Okay.
08:53
And I would say that, you know, the fact that it hit her, like, exactly at the
09:00
instant she stopped, which frankly I believe he testified to in a deposition
09:05
on this, means that he, you know, he had to have the intent and pull the trigger
09:08
before.
09:09
And again, the deposition, is that before us?
09:11
No. I'm just saying I don't think it's disputed in this case that he hit her the
09:15
instant she stopped, meaning that the intent that he formed and him pulling the
09:20
trigger had to have occurred before that. But, you know, we learned information
09:25
about this during discovery, which is why the first amended complaint is more clear
09:31
about this.
09:31
What specifically, talking about the incident you were just talking about, that
09:35
Officer Moll fired, what is it that converts that from a, assume for the sake of
09:43
argument that I believe that there was a dispersal, the attempts to disperse prior
09:46
to that moment, what is it specifically about that use of force that objectively
09:53
manifests something other than an intent to disperse?
09:57
I think the fact that he fired an explosive at her.
10:00
It's the nature of the ordinance or the weapon.
10:02
It's that. It's the fact that she was already 30 yards away from the truck, meaning
10:07
she had effectively complied.
10:08
What cases do I go to to look for those being relevant factors in a seizure and then
10:17
relevant to the qualified immunity, where we've clearly established that those
10:21
are factors that convert, again, you're accepting my arguments up to this point,
10:26
right, a dispersal that converted into a seizure?
10:29
So I think that there's three types of cases that you can look to on this.
10:35
The first is cases that say officers may not use more than de minimis force against
10:42
a non-resisting, unarmed.
10:45
Let's stick with, are you familiar with the Kemp case?
10:48
I'm not, Your Honor.
10:50
Just Judge Kobus's November 2025 case?
10:55
I'm not familiar with the case, Your Honor.
10:56
Well, it's controlling.
10:59
That's unfortunate, then.
11:01
It follows Dundon, but in a factual context much closer to this case.
11:07
Well, I mean, Dundon is a case in which I think there was no dispute that the use of
11:10
force was intended to disperse.
11:12
Here, I think this is a case in which Moll's use of force, certainly, with the explosive
11:17
munition was not intended to disperse.
11:18
And that's what I'm trying to burrow down on.
11:20
Is it the nature of the force that converts?
11:23
Like, the case that Judge Loken's referring to was a pepper ball that was, that the
11:30
court found that it was a, that it was used to repel.
11:33
Is it the nature of the force here that converts it, the weapon?
11:38
It is three things, Your Honor.
11:39
It is the nature of the weapon, the fact that it was an explosive.
11:42
It is the fact that Wolanski had already complied and moved 30 yards away from the
11:47
truck, so she had already dispersed.
11:49
She was now as far back as other, you know, protesters were that had not been objected
11:54
to by the police.
11:55
So there was no actual need to disperse there.
11:57
And number three, it's the fact that after Moll hit her, and, you know, it exploded
12:02
and she was injured, the law enforcement officers cheered and laughed and congratulated
12:07
him.
12:07
None of that is But the dispersal was, the order to disperse was from the barricade,
12:11
not the truck, right?
12:13
Well, they're all, I think they're all very close together, Your Honor, and it was
12:15
through a loudspeaker.
12:16
No, there's significant difference because she'd been up and down the barricade multiple
12:20
times.
12:22
She had not, she had approached the barricade and been there for approximately 30 minutes.
12:27
Prior to that, she was just on the bridge, which was south of the barricade.
12:30
But prior and prior, prior to this day, or.
12:37
I mean, she had been at a protest earlier, but in the instance in question, she got there
12:44
around 2 a.m.
12:45
and she was walking around the bridge and talking to people and nobody objected to that.
12:50
And then she approached the truck, which was near the barricade, and she stayed there.
12:54
Where was she during the midnight violence on top of the barricade?
13:00
I believe that she did go to the bridge during that time, but I don't believe she, like,
13:08
participated in that protest.
13:09
But I don't believe that's part of the record one way or another.
13:11
And I don't recall.
13:13
Where do I go to look for the authority that the weapon used matters as far as whether
13:23
on the objectively manifested intent?
13:26
I mean, what, what, is there a case out there that explores that, that, that point that
13:31
you're making that explains why that's the case?
13:34
No, Your Honor, I think it's, I mean, to me, it is, it is like a basic common sense inference
13:39
that if you're trying to disperse somebody and they're already 30 yards away.
13:42
Let's say that's, I get it.
13:44
I think the district judges in Minnesota have had kind of a dialogue about, about this
13:49
issue, about, you know, I remember a hypothetical, whether a flamethrower that was used to
13:54
disperse, whether the nature of that weapon means that it was a seizure, not a
13:59
dispersal. But, but common sense, let's say I buy your argument on its face.
14:04
It doesn't get you through the qualified immunity analysis, right?
14:07
We need to find a case that establishes that principle.
14:10
That it's a seizure?
14:12
Right. That, that, that the weapon used puts officers on notice that, that they may be,
14:19
even if they're engaged in repelling, that the use of a certain weapon may convert it
14:23
to a seizure. In other words, where do I look for that on a QI analysis?
14:27
Sure, Your Honor. I would say, number one, there's plenty of case law that says that
14:33
use of these type of explosive weapons is excessive force, is excessive.
14:38
And if you think that it's not a seizure, or that that's not clearly established,
14:41
that's where you get to our Fourteenth Amendment argument, which is.
14:44
Right, right, right. But I, and I don't know that you have a clearly established
14:47
case in the Fourteenth Amendment either, but are you telling me there's not one that
14:50
makes this distinction on the Fourth Amendment analysis?
14:53
It is, I do not believe that there is a case directly on point that says the use of an
14:58
explosive device means that it's not an intent to disperse.
15:00
And why doesn't that matter for the Fourth Amendment purposes on qualified immunity?
15:04
Because if Officer Moll intended to injure her, then you, then there is a seizure,
15:11
and it's, it is clearly established that intending to injure somebody with an explosive
15:16
device is a seizure. I mean, even under Torres, I mean, that would satisfy that test.
15:22
Your Honor, I have five minutes left, and I want to make sure I reserve it for rebuttal.
15:25
What was the, what you describe as explosive device? What was used?
15:30
It's something called a signaling warning munition, Your Honor, which is effectively,
15:34
I think the easiest way to understand it is that it is a flashbang that is embedded
15:38
in a bullet so that you can fire it out of a shotgun rather than throwing it.
15:42
But it is effectively the same thing as a flashbang.
15:45
It explodes and, you know, creates a lot of heat and a lot of light and a lot of sound.
15:49
And so, but I'd like to reserve my last for rebuttal. Thank you, Your Honors.
16:01
Mr. Grenholms?
16:22
May it please the Court?
16:26
Counsel?
16:27
Justices?
16:28
Counsel?
16:29
My name is Sean Grenholms.
16:31
I'm here representing the Defendant Appellees, Morton County, Morton County Sheriff Kyle
16:36
Kirkmire and Municipal Defendant Officers Thomas Gross, Matthew Hansen, Glenn Ternus,
16:42
Justin White.
16:46
So, I would like to first start by addressing some of the arguments that Appellant's Counsel
16:54
has raised before this Court.
16:56
Woloski's counsel concedes that the applicable standard is whether or not the officer's
17:02
conduct met, manifested, objectively manifested an intent to restrain as opposed to an intent
17:08
to repel or disperse.
17:12
Her argument is that she has alleged sufficient facts in her pleadings to establish a plausible
17:18
claim of intent to restrain.
17:20
The district court concluded, no, that's not the case.
17:23
District court properly and correctly made that conclusion.
17:28
Now, a lot...
17:29
Counsel, there had been discovery in this case?
17:32
There was discovery.
17:33
So, this case has been going on for a very long time.
17:36
So is the result here a judgment on a motion to dismiss or was this essentially resolved
17:43
on summary judgment?
17:44
This was resolved on a Rule 12 motion to dismiss in relation to her second amended complaint
17:49
which was filed many years after the case was originally started.
17:52
Procedurally, there was an original complaint.
17:55
We filed a Rule 12 motion to dismiss.
17:56
The Court partially granted the Rule 12, converted the rest of it to summary judgment.
18:01
We conducted a limited discovery, limited to the issue of qualified immunity, filed
18:05
supplemental briefing.
18:06
Seven months after that briefing had been submitted, Woloski asked for leave to amend
18:11
to only identify the officers, the officer who allegedly deployed the explosive munition.
18:18
The Court granted that request.
18:20
They filed a first amended complaint.
18:21
That first amended complaint was much broader than the Court authorized, including not only
18:26
identifying John Mullett as the officer allegedly deploying an explosive device, but also adding
18:31
additional causes of action against numerous additional officers, raising new causes of
18:36
action for failure to intervene.
18:38
Basically, and as the District Court concluded, basically it was a complete redo over on the
18:44
pleadings in the lawsuit.
18:44
So that's why the Court struck that first amended complaint or specific pleadings that
18:49
weren't consistent with the plaintiff's summary judgment briefing on the converted
18:56
motion for summary judgment, which is what the Court authorized for the day.
18:59
So you're here on behalf of Officer Mullett, right?
19:01
Is that, I just want to make sure I've got the right lawyer for the right case.
19:03
Yes, correct.
19:04
I represent Officer Mullett.
19:05
All right.
19:06
Proceed.
19:07
So after he struck those and directed that you have to limit your amendments to what
19:13
was alleged in the summary judgment, that's where the second amended complaint, which
19:16
is now the operative pleading in this case, came about.
19:18
What does the complaint, the operative complaint, say about the timing on Officer Mullett's
19:25
use of what's been described as the signal munition?
19:28
Sure.
19:29
So here's what it reads, and this is in your joint appendix at 359, at paragraphs
19:36
145 through 148.
19:38
Here's the allegations on that.
19:40
Quote, over the course of the, and this is starting from the point when she's running
19:44
away from the barricade.
19:46
Over the course of the next few seconds, Sophia ran approximately 30 yards south.
19:52
Sophia saw a piece of plywood on the ground as she was running south.
19:56
Sophia stopped at the plywood and attempted to pick it up to use as a shield.
20:02
But just as Sophia stopped and began to bend down toward the plywood, Defendant Mullett
20:09
intentionally hit her with an explosive munition.
20:12
Is there a reasonable inference that, that Defendant Mullett fired before she stopped
20:17
and does it matter?
20:18
I think that's an unreasonable inference.
20:20
She specifically says not only did Walonsky stop proceeding south, but she was bending
20:26
down to pick up the shield.
20:28
So two different actions, not all, you're not running and bending down.
20:32
She says she stopped and, she stopped at the plywood and attempted to pick it up to use
20:39
as a shield.
20:40
I don't believe it's a reasonable inference and the Court's not required to make unreasonable
20:45
inferences in relation to a Rule 12 motion to dismiss.
20:48
So no, I don't believe, and I think the only reason she's trying to make that argument
20:52
now obviously is to get past this Rule 12 issue on whether or not there was actually
20:59
force being applied as she was running and whether she was having force applied while
21:04
she was complying.
21:05
What about the type of weapon used here?
21:08
Your colleague on the other side has suggested that there's a reasonable inference of intent
21:13
here and that this is not the sort of weapon, in other words, that while the weapon may
21:18
be used to repel in certain situations, while it's aimed at someone, it is not for that,
21:23
used for that purpose, which means that there was an intent here or a reasonable implication
21:27
that there was an intent to detain or restrain.
21:32
Again, I don't think that's a reasonable inference.
21:34
What she's talking about, an aerial warning munition, and just to clarify for the record,
21:38
I know this is a Rule 12 and she's alleged that this is what happened.
21:42
Law enforcement from the very beginning has always denied that the explosion
21:45
resulted from anything that originated from law enforcement, but that aside.
21:49
Well, what have they alleged, that her arm was blown off by something else?
21:53
We haven't.
21:54
So the plaintiff frames the pleadings.
21:57
Understood.
21:57
But you've raised the issue that there was discovery.
22:01
Is there anything in the discovery that says that?
22:03
Yes, in the discovery, and of course, that's, you know.
22:06
If you don't want to go there, I'm not going to force you to go there.
22:08
In discovery, there is testimony by officers on the scene who witnessed silver canisters
22:13
being rolled up to the general vicinity of the hurricane.
22:16
I get where you're, okay.
22:17
But that is not, that is not before us now.
22:19
That is not before you right now.
22:20
The allegations in our complaint are that Officer Moll fired.
22:23
Exactly.
22:24
That's what the allegations in the complaint are.
22:25
But no, I don't believe it's a reasonable inference to say that Moll shot at her and
22:30
it took.
22:31
Why not?
22:32
Because 90 yards distance.
22:35
So he's firing from a 12-gauge shotgun.
22:38
Is it going to, if she, so what she's saying, arguing here, and not in the pleadings, is
22:45
arguing that he pulled that trigger while she was still running, before she stopped,
22:51
and as she's bending down, it took that time frame for that 12-gauge shell to travel 90
22:56
yards?
22:57
It's just not a reasonable inference.
22:59
I don't think the court can reasonably make that inference.
23:02
So the only reasonable inference is that before selection.
23:06
Is there anything in the record about the time it would take for such a shell to travel
23:13
such a distance?
23:14
There's not, Your Honor.
23:15
There's nothing in the record on that.
23:17
One of the things that's odd about the case is the way it was a motion to dismiss converted
23:22
to a summary judgment motion.
23:23
We've got all the discovery, and now we've got a motion to dismiss.
23:26
And I'm urging you to talk about things that go to a summary judgment motion,
23:32
but that's not where we're at.
23:34
23:34
So why shouldn't this particular issue just go back, setting aside the other use of force,
23:38
the other defendants?
23:40
Why isn't it premature when there seems to be all this evidence lurking in the background
23:44
that's already in the record?
23:47
Thank you, Your Honor, for that question, because we're talking about qualified immunity.
23:50
And this Court has repeatedly said, and the United States Supreme Court has said,
23:53
the whole purpose of qualified immunity is to resolve these issues of objective
23:59
It's a little late for a quick resolution on this case, don't you think?
24:02
It is, but the case law does say it's supposed to be resolved at the earliest possible
24:08
time, and that can be either Rule 12 dismissal motion, it can be a summary judgment
24:12
stage, or it can even be at trial.
24:13
They can still address the qualified immunity issue at that point in time.
24:17
Yes, this case drugged on for years.
24:19
There was a lot of
24:19
And I don't want to get into who's responsible for that.
24:22
Sure.
24:22
But it's just an odd situation on a motion to dismiss where we've got all this stuff
24:28
in the back.
24:29
Qualified immunity analysis doesn't negate the inferences to be in favor of the plaintiff's
24:36
allegations.
24:37
I agree with that.
24:38
That is true.
24:39
Reasonable inferences are to be made in the plaintiff's favor.
24:43
I agree with that.
24:44
But we're not talking about reasonable inferences here.
24:46
Everything that the plaintiffs are arguing about are not alleged in the pleadings.
24:50
They misstate their own allegations.
24:53
And I can go through.
24:53
They have six aspects of what they claim.
24:55
They have alleged they create these favorable inferences.
24:58
Not a single one of them stands up.
25:00
And that's addressed in the briefing, but I can certainly go through some of those if
25:03
you like.
25:09
So as to so he alleged that on the inferences, he alleges there's no reason to repel.
25:17
Well, Attorney Stoll started to discuss some of the allegations in the complaint about
25:24
the history, the events leading up to this particular incident.
25:28
And it is kind of, it'd take me too long to go through all of that.
25:31
But yes, there was a large scale riot that occurred a few hours before this incident
25:37
at this very location.
25:38
Walonsky admits in her pleadings that she was there during that riot, that she saw law
25:43
enforcement deploying beanbag rounds, flash bangs, tear gas, water during that.
25:51
And she saw this happening at this exact location.
25:54
But it's undisputed that the riot was over by the time of this incident, correct?
25:58
That the situation had peaceful, however you want to describe it, that the riot had, that
26:03
the protesters other than the plaintiff and one other person had dispersed.
26:07
True.
26:07
The protest by about midnight had started to calm down.
26:13
Quantity of protesters and officers dropped considerably at that point.
26:17
But the barricade was still manned by officers.
26:19
It's a defensive barricade.
26:21
Walonsky admits the bridge was closed, that they had been negotiating to get the bridge
26:25
closed for months.
26:27
That establishes just her mere presence was unlawful.
26:33
And I'm sorry, Your Honor, remind me of your question.
26:36
I don't think there is one pending, so.
26:38
Okay.
26:39
Well, essentially what I was going with that is that the events leading up to, and what
26:44
she alleges in her pleadings, is that there was a very tense situation.
26:48
She admits in her pleadings that other protesters during those hours prior had pulled, backed
26:52
up a semi-truck, two of these burnt-out trucks chained to the concrete barriers forming a
26:58
part of the barrier and drug it away.
27:00
They came back with the semi again to try and pull the second one away, and law enforcement
27:04
were able to thwart that.
27:06
Now she doesn't allege it, she doesn't allege how they thwarted it, but there was use of
27:10
force involved.
27:12
And so obviously the officers are going to be very mindful of anyone messing around or
27:17
tampering with that one remaining burnt-out truck forming a part of that barrier.
27:22
And so, and then she admits that she placed herself directly next to that truck.
27:26
She admits that the warning, and counsel admits that we can consider the audio in this case,
27:33
this Court's case law in Ching as trustee for Jordan versus City of Minneapolis,
27:38
has specifically said, videos of an incident are necessarily embraced by the pleadings
27:43
and we will consider those videos here.
27:45
So here's what the warning was.
27:47
Quote.
27:48
Did you just read from a case of ours?
27:51
I did.
27:51
What was it?
27:53
It was Ching as trustee for Jordan versus City of Minneapolis, 73F 4th 617 at 621 8th
27:59
Circuit 2023.
28:00
Does anyone dispute that we can look or listen to the audio?
28:05
28:05
Okay.
28:05
Look to her deposition.
28:06
Nobody disputes that.
28:08
The language is crystal clear.
28:09
It's an amplified warning over an amplification system attached to the bearcat out there.
28:14
They said, quote, we see you behind the truck and underneath the truck.
28:19
Get out now.
28:21
Return to the south side of the bridge.
28:23
Otherwise, we will use less lethal munitions, unquote.
28:28
What does the complaint say about, I mean,
28:30
the use of force was deployed.
28:34
She fled.
28:35
At some point, she alleges that she cried out, basically, don't shoot.
28:40
I'm leaving.
28:41
What is the plea?
28:42
When did that occur in the timeline as set forth in the complaint?
28:46
So her allegation is that after she got struck in the arm while she's hiding behind a shield
28:53
behind a truck, she realizes she's no longer safe hiding behind that shield.
28:58
She starts running as fast as she can south.
29:00
And while she's running, she yells at.
29:03
Then she says, the next thing she alleges is, then she stopped.
29:06
And as she's bending down to pick up the shield is when the explosive munition struck her.
29:11
She says, and...
29:13
Well, isn't there a reasonable inference that when she's basically surrendered and is fleeing the scene,
29:20
that police conduct after that, when she basically verbally says, I'm out of here,
29:26
don't shoot, and they continue to fire, why isn't there a reasonable inference that when officers do that,
29:32
that at some point, at least, their intent converts from dispersal,
29:36
which they've succeeded in or are succeeding in, into a seizure?
29:40
Well, one thing I want to point out about this allegation that you're referencing,
29:45
nowhere does Walonsky allege the explosive munition largely fired by Maul that destroyed her arm
29:51
was fired while she was running away from the barricade.
29:53
And then as to the, and what you're referring to are like beanbag rounds,
29:58
non-explosive munitions while she's running away.
30:01
She only first raised that, and it doesn't appear anywhere in the Second Amendment complaint.
30:05
There's nothing about them shooting at her because the judge struck that.
30:08
She brought a second lawsuit then after.
30:11
But the Second Amendment complaint includes her verbal, you know, surrender.
30:15
It does, but it doesn't allege any forces being applied against her as she's running.
30:18
But it does allege force after she said that.
30:22
Yes, but that, the only force that alleges is the explosive munition after she stops
30:26
and as she's bending down to pick up a shield,
30:29
which the officers were seeing protesters use shields all night long.
30:34
But, so, the point being is that the original, the operative including the Second Amendment complaint
30:40
doesn't make any allegation of force being used against her from the time she's running from the truck
30:44
until she actually stops, stops complying with the command to go south off the bridge.
30:49
Now, in her companion case, the second complaint she filed after the Second Amendment complaint
30:56
in the consolidated appeal here, that's the first time she raises this issue of other officers firing
31:01
as she's running south.
31:04
And this was, this allegation wasn't raised until 2022, four years after the case was commenced
31:11
and seven years after the incident.
31:12
But it's not in the operative complaint.
31:14
We shouldn't be looking at it.
31:15
Is that your point?
31:16
I mean.
31:16
Well, it is in the, it is a consolidated appeal.
31:18
So, you're looking at both the operative complaint in the primary appeal and her consolidated appeal.
31:23
But the reason why you shouldn't consider it, it's a different reason,
31:26
is directly contrary to her sworn testimony during her deposition.
31:29
Well, she says she doesn't remember, right?
31:32
Is that right?
31:32
I mean.
31:32
That, no.
31:33
Here's what she said.
31:36
So, what she testified to is.
31:38
I don't, I can look at it.
31:40
I don't want to belabor the point.
31:41
Sure.
31:41
I know you have a colleague here and I know you're running short of time.
31:43
So, I'll look that up.
31:45
But I take your point, so.
31:46
And thank you for reminding me of that.
31:47
I'm out of my time.
31:49
Thank you.
32:11
Ms. Spork-Yellow?
32:13
Yes.
32:14
Good morning, your honors.
32:16
May it please the court.
32:17
My name is Jane Sportello and I'm here on behalf of the eight state defendants
32:21
of the North Dakota Highway Patrol.
32:24
The district court's dismissal of these eight unqualified immunity grounds should
32:28
be affirmed.
32:29
And before getting into my planned remarks, I just want to respond to a couple
32:33
points that have been raised.
32:36
I wanted to return to the reference of the recent Kep V.
32:40
Sarpy County case.
32:42
I think that's really applicable.
32:45
Is the analysis different for the state and the county individual defendants?
32:50
Is the...
32:51
So, in general qualified immunity, no.
32:55
I will note that only three of the state defendants are actually even alleged to
32:59
have applied any force at all.
33:02
Or even, excuse me, only three are attempted to have used force on
33:08
Walensky.
33:08
That would be state defendants Dvorak, Arndt, and Skar.
33:13
Sergeant Dvorak was alleged at deploying stinger ball grenades near her without
33:18
touching her in any way.
33:21
Sergeant...
33:22
Trooper Skar was alleged to have aimed at her with a bean bag round but not
33:28
actually hit her, deployed bean bag rounds at her.
33:31
And Arndt was also alleged to have deployed bean bag rounds at her and
33:36
hitting her with a single round in the arm.
33:39
And those deployments I'm just talking about were taking place while she was
33:44
still behind the burned out truck, while she was still behind that barricade.
33:52
And so, turning to the other five defendants, five of the eight state
33:57
defendants are not alleged to have used any force or really to have done
34:00
anything at all.
34:01
They're merely alleged to have been present and failing to intervene.
34:06
But, you know, the court should uphold this finding for a couple reasons.
34:12
First, the plaintiff doesn't even meaningfully contest the court's dismissal
34:16
of these five in her opening brief.
34:18
She doesn't argue the failure to intervene.
34:21
Second, you know, just returning to the point we've all been talking about,
34:25
the perspective of the reasonable officers on the scene at the bridge are that
34:31
protesters are behind the truck, that protesters are underneath the truck.
34:38
A command has been given to disperse and they're not dispersing.
34:42
I think...
34:42
You know, it seems to me the way this has been briefed, we're into qualified
34:49
immunity generally.
34:51
And if the award of qualified immunity generally was wrong, we remand for all
34:56
this individual stuff.
34:58
And you're just...
34:59
And the briefs waste a great deal of our time asking us to do everything now
35:04
that the district court didn't address.
35:07
Yes, Your Honor.
35:08
So I would disagree with that for a couple of reasons.
35:13
First, again, like Mr. Reynolds said, qualified immunity has to be addressed
35:17
at the earliest stage of the litigation, right?
35:20
And these dismissal of the claims of the law enforcement defendants is really
35:24
years overdue at this point.
35:26
And second, especially for those five, and I would argue for all of the state
35:31
defendants, it's very, very clear...
35:33
Did the district court do them individually?
35:36
So the...
35:37
The required individual analysis for each defendant that our cases demand?
35:43
Or did the court just said, you know, I don't have to go there because
35:47
qualified immunity applies to all of them?
35:50
Your Honor, the district court did specifically dismiss the failure to
35:55
intervene plaintiffs on due to the lack of an underlying constitutional
35:58
violation, due to the lack of an underlying seizure.
36:02
He...
36:02
So he dismissed all of them on qualified immunity grounds.
36:06
It is true that the district court didn't get into the failure to intervene
36:09
test with regards to those five.
36:14
But I think the analysis here is just very clear to all eight of the state
36:19
defendants, right?
36:21
Aren't Dvorak and Starr, even if they did deploy less lethal munitions,
36:25
that there's no case law putting them on notice that that would have been
36:30
objectively reasonable in light of the threat that was created by these
36:33
non-dispersing protesters, right?
36:35
And I mean, there's not a single case that deploying less lethal without
36:41
injuring someone at all in that situation is...
36:45
Could possibly, you know, violate the constitutional right, let alone one that
36:49
was clearly established.
36:51
And I see our time is running out.
36:52
What pages of the district court opinion are you relying on?
36:56
Am I relying?
36:57
I'm sorry, Your Honor, my time is up, I don't...
36:58
When you say that the district court decided what you want to...
37:02
What you now are doing, and therefore we can review it now.
37:06
When...
37:07
So the...
37:08
It's a long opinion.
37:10
I didn't study every detail, but I don't think that's in there.
37:14
Your Honor, what's in there is that he affirms the dismissal
37:17
of all eight state defendants for qualified immunity because there was no
37:22
underlying seizure here.
37:24
Okay, yeah, that, I'm...
37:26
Okay.
37:26
Yes.
37:27
And we would ask that that be affirmed.
37:28
Thank you very much.
37:39
The rebuttal?
37:40
Thank you, Your Honor.
37:41
I want to make one point right off the bat.
37:44
We spent a lot of time discussing the intent to restrain versus intent to disperse issue.
37:49
But I believe that Walansky deserves reversal here, even if she does not establish
37:56
intent to disperse, even if she does not establish intent to restrain.
38:01
Torres has two tests, and we've really only talked about the seizure by force test.
38:06
There's also the seizure by control test, and that really does not require...
38:10
You're going to argue what wasn't argued before.
38:12
You can't do that on rebuttal.
38:15
Well, I...
38:16
You can respond to the police arguments or say more about what you argued before.
38:22
You can't raise new arguments.
38:25
It's unfair advocacy.
38:27
Okay, I'm sorry, Your Honor.
38:30
I need to...
38:31
My colleague said that it was undisputed that if you guys established an intent to disperse,
38:39
there's no seizure, and therefore, no claim here.
38:42
And I'm just disagreeing with that because there's two different ways to establish seizure.
38:48
The other point I want to make is that if the court endorses the district court's decision
38:58
on both the lack of seizure and its 14th Amendment analysis, the upshot of that will be a situation
39:06
in which law enforcement is allowed to use objectively unreasonable force against protesters
39:14
because they...
39:15
You know, as long as there's an intent to disperse, there'll never be a seizure,
39:18
and therefore, there's no Fourth Amendment claim.
39:21
And, you know, in what I believe is a violation of Kingsley...
39:24
I heard cases like Bernini don't say that.
39:28
Bernini is pre-Kingsley, but Bernini was also one in which I believe there was no dispute
39:38
over whether there was an intent to disperse.
39:40
Is that your understanding as well, Your Honor?
39:45
I guess your way out of that, that you're arguing, is there's something inherent
39:49
about the kind of force that was used here that suggests...
39:54
In other words, I get the point you're positing here, and that is if the officers are intending
40:01
to repel, they can do whatever they want.
40:04
I take the counterpoint to be, well, there are certain uses of force that are inherently
40:13
not the sorts of types of force that can be repelled, right?
40:16
In other words, your argument here is a flashbang.
40:19
I've quoted the district court where it talked about a flamethrower,
40:22
where the objectively reasonable observer would say, like, this wasn't an attempt to repel.
40:28
Is that a layman's sort of attempt at what you're arguing here?
40:32
And, Mike, assuming I buy that, I still don't find, for the purposes of qualified immunity,
40:38
a case that would be sufficient in this case to put the officers on notice of that, right?
40:45
I mean, you're not showing me a case.
40:48
I get the argument, and I appreciate it.
40:49
Sure.
40:50
I think there's two sets of cases on this.
40:52
One is just the general line of cases that extends back to Garner in the 1980s that says,
40:57
using more than de minimis force against people who are not behaving violently and not an immediate threat is...
41:04
Garner was deadly force.
41:08
True, but, I mean, there is a long line of cases...
41:11
Procedure announced.
41:14
The...
41:14
Well, sorry, what was I...
41:16
Well, it can still be unreasonable force under the Fourth Amendment, but it's not a seizure, per se, unless it's deadly force.
41:25
Well, so, Your Honor, then I would say, if it's not a seizure, then it's analyzed under the Fourteenth Amendment, where you don't need a seizure,
41:31
and Kingsley says that you get the same excessive force standard of objective reasonability.
41:36
All right.
41:38
We have not applied Kingsley beyond those in pretrial detention, right?
41:44
The Eighth Circuit has not done so yet, but the Second Circuit has, so you'd be creating a circuit split.
41:50
I've read your brief, but we've hinted that we've at least hinted that we would limit Kingsley as others have.
41:58
Well, I don't think any court has read Kingsley...
42:01
The debate in the circuit's fine, you know, take it up to the nine who can decide that.
42:07
I'm out of time, Your Honor, so I'm happy to stop, but I don't believe any circuit has read Kingsley to only apply to pretrial detainees.
42:16
Thank you.
Transcript of today's testimony in the second case filed by Sophia Wilansky
https://www.courtlistener.com/audio/101848/sophia-wilansky-v-morton-county/
0:02
The second case for argument is Sophia Wilansky v. Morton County et al.
00:18
Ms. Dugan.
00:21
Good morning, Your Honors. May it please the Court, Mary Ann Dugan for the plaintiff
00:26
appellant Sophia Wilansky. If possible, I'd like to reserve three minutes for rebuttal.
00:32
This related appeal involves the hefty cost bill judgment of about $38,000 that was entered
00:39
against Ms. Wilansky in the matter that was just argued by Mr. Stoll. And of course, if
00:44
you reverse and amend all the merits, the cost bill judgment should be vacated and you
00:52
have a related appeal. But if not, the cost bill should be reversed, the cost bill judgment
00:57
entirely or in part for the various reasons set forth in our briefs.
01:03
Unless the Court has a preference, I would like to begin with the issue of the forensic
01:08
examination costs that were awarded in this case.
01:11
I have to note that we don't consider appeals of $77 cost assessments.
01:18
Understood. This is a $38,000 judgment?
01:22
I'm looking at all the arguments.
01:25
Correct.
01:26
We're supposed to separate out $77 and then we've got $240 for quarter-to-quarter overtime.
01:33
We just don't do that.
01:34
Understood, Your Honors.
01:36
I would suggest you focus on the overall.
01:40
Okay. Well, the forensics alone was over $15,000, if I may address that first.
01:47
01:47
The cost for forensic examination of the law enforcement phones was over $15,000.
01:56
Although this circuit has not addressed the specific issue of electronically stored information
02:03
expenses incurred in discovery, many districts within this circuit have looked to the third
02:10
circuit case, race tires, which is addressed in our brief at page 16.
02:15
Has any court that you're aware of rejected the race tires analysis?
02:19
Not that I know of, Your Honor.
02:21
And as the race tires court said, nothing suggests that Congress intended to shift
02:27
all expenses of production of electronically stored information to the losing party.
02:33
The Federal courts lack the authority to do so under the cost statute.
02:37
And as the Morton County defendants themselves note in their brief at page 9, the lower
02:45
court ordered defendant to pay those costs.
02:48
And that should not be changed at the judgment phase.
02:54
The law enforcement phones had already been imaged and then the defendant chose to do
02:59
a forensic exam, examination, in response to plaintiff's discovery request.
03:06
That's in the Morton County brief at page 8.
03:10
The fact that defendants were under a duty to preserve that data and then produce it
03:17
to plaintiffs and then ordered to pay those costs themselves by the court does not mean
03:23
that they get to shift that burden back to the plaintiffs at the judgment stage.
03:31
The relevant statute is 28 U.S.C. 1920, subsection 4, which only allows taxation for
03:46
exemplification and copying of materials necessarily obtained for use in the case.
03:52
The race tires case and the three District of Minnesota opinions cited in their brief
03:57
under pages 16 to 18 make clear that this is basically gathering of information
04:03
to produce to the plaintiffs and is not taxable.
04:07
If you could check my math, if we agree that race tires apply, how much, and we affirm
04:13
on the other issues, what are you asking for for a reduction on those ESI costs
04:21
only?
04:21
It's addressed on pages 15 to 16 of our brief, and it's a little over $15,000, $15,258.50.
04:33
Is that the entire amount that was related to the ESI?
04:37
No. There was almost 30, a little over 30,000. The trial court rejected some smaller
04:43
items but awarded more than half of the amount that was sought for forensics.
04:48
I'll go back and look at that.
04:49
Okay. The other major issue, and Judge Lincoln, I entirely agree, I would not be appealing
04:59
anything that's tiny, but since we were appealing, we noticed that these other issues
05:05
were also improperly awarded, these other items.
05:08
There were excessive deposition costs awarded under 1920, Section 1920, subsection
05:16
2, which only allows for printed or electronically recorded transcripts
05:25
necessarily obtained for use in the case.
05:27
In our brief at page 7 to 10, and then again page 14 to 15, we cite three key Eighth
05:36
Circuit cases, Coppinger, McDowell, Tyson, and Little Rock, four cases, excuse me.
05:43
First of all, the burden is on the defendant to show that these were necessarily obtained
05:48
for use in the case. Well, one interpretation of that could be, at the time I got these
05:55
transcripts, I thought they would be necessarily used in the case.
05:59
But that's not what the relevant Eighth Circuit cases say.
06:04
The, for example, Little Rock case, which we cite later in the brief at 14 to 15, taxed
06:10
only the cost of actually trying the case in the courtroom, did not allow discovery
06:15
copying costs, transcript copy costs.
06:20
The McDowell case denied transcript costs for preparation of transcripts, for copies
06:27
of transcripts, for preparing findings of fact where those findings of fact did not
06:32
rely at all on the depositions.
06:34
Similarly, the Tyson test indicates that you don't get to just, once you win, get all
06:42
of your deposition costs, only those that were necessarily used in obtaining the result
06:48
in the case. The total on this...
06:51
It seems to me you frustrated that by changing the case.
06:56
Well, Your Honor...
07:15
It's at the time, is it necessary? Does it appear to be necessary, right?
07:21
I mean, you didn't change, I didn't say you, but your client changed the case after the
07:29
discovery, and now all of a sudden, well, you don't, that means you don't get the
07:32
07:32
cost that we forced you to incur, not forced, but you incurred because of the way we pled
07:39
the case initially.
07:41
Well, there's two issues. One is, you know, this is quite common, I've seen some parties
07:48
always order all transcripts immediately. Other parties choose to be a little more frugal
07:56
and hold on and see if they're going to need those transcripts. And McDowell says transcripts
08:02
are made for the convenience...
08:03
District courts figure that out and exercise their discretion, and that's the end of it.
08:09
Correct. And here, it's not an abuse of discretion, it's a misapplication of the relevant case
08:17
law to allow all of the transcript costs, which is...
08:20
I disagree with that.
08:22
Okay. The total is over $21,000. It's a very significant amount of money, and the convenience
08:31
of the parties is not a reason for awarding costs of transcript copies.
08:37
I see I'm eating into my rebuttal time, and I will...
08:42
Let me ask you, hypothetically, if we were to reverse in part on the merits, does the entire cost
08:49
award have to be vacated and sent back, or did the district court break it down based on
08:56
any decipherable means for us? I suspect we have to vacate the cost award.
09:02
I believe so. It just goes back to zero, and then if they win again, then we...
09:08
Well, if we reverse in part, they would have won in part.
09:13
I understand. Yeah, I don't think there would be a rational way to distinguish which costs
09:19
were for which issues, at least from my view of it. Thank you.
09:28
Thank you.
09:36
Mr. Ganahl.
09:50
May it please the court.
09:57
Justices, counsel.
10:01
My name is Sean Grenalds. I'm here representing the defendant appellees, Morton County,
10:07
Morton County Sheriff Kyle Kirkmeier, and Morton County Deputy Jonathan Moll.
10:13
So Plaintiff's Counsel has raised two categories of costs that they claim were
10:18
inappropriately taxed by the district court. These are the electronically stored information costs
10:24
to forensically preserve and to process.
10:28
It was 52 police officers' cell phones.
10:33
And I'll come back to this. The second category are the video and transcript costs for the
10:38
depositions in this case. So starting with the electronically stored information on these cell phones.
10:42
Before the lawsuit was even started, Plaintiff's Counsel made a preservation
10:48
of evidence demand, making broad requests that everything be preserved,
10:53
including cell phones from the officers.
10:58
As the court may be aware from our last argument, the DAPL protests
11:03
spanned months and involved law enforcement officers not only from North Dakota but from surrounding states.
11:08
There was a request for assistance issued by the governor, and so there were a lot of officers involved.
11:14
So in response to that preservation request, the county hired a forensic
11:18
expert, Scott Stillman, who came to Morton County and assisted
11:23
with imaging of those cell phones to preserve the information. Later when the lawsuit
11:28
was commenced, broad discovery requests were made by the plaintiff asking for,
11:33
again, electronically stored information pertaining to the DAPL protests and Tawanski.
11:39
And so in order to produce that, the county then engaged a forensic
11:44
expert out of South Dakota, Computer Forensic Resources, because Scott Stillman was
11:48
no longer performing that type of work.
11:51
We are familiar with the facts.
11:53
Okay. And so getting to the point, as far as the electronically stored information is concerned,
11:59
the district court concluded they were properly taxed as copy and exemplification costs under
12:04
Section 1920. And the case...
12:08
I'm trying to remember. I don't remember your brief off the top of my head. If we adopt the race tires case
12:14
out of the Third Circuit, does that dictate a different result here?
12:19
Well, I will state that the race tires does have a different analysis than some of the district courts
12:24
in the Eighth Circuit have conducted, and specifically a case that the district
12:29
court relied on within our district is the Jacobson Warehouse case. And in that particular case...
12:35
But there are different standards, right?
12:37
There are different standards, yes. And so our argument is that this Court should not adopt the Third
12:41
Circuit standard for considering ESI. This Circuit has not yet addressed the issue of which ESI
12:47
costs are properly taxable under Section 1920. We're asking the Court to affirm the district
12:51
court's reasoning in our case as the applicable standard.
12:57
And again, the district court case that the...
13:00
So we're dealing with making copies is the statutory language here.
13:04
Making copies and exemplification.
13:07
Is exemplification in the statute? I don't remember.
13:10
I believe it makes reference to...
13:13
I don't have that in front of me, but...
13:21
It refers to fees for the cost of making copies of any materials where the copies are necessarily
13:27
obtained for use in the case. That's the language of the statute.
13:31
I still haven't heard an answer to Judge Kobus' question.
13:35
I don't care what analysis. I haven't studied Jacobson versus race tires.
13:40
Does it require a different result if we reject your argument that the trial court's analysis was better?
13:49
That doesn't fall from as a legal matter.
13:53
You know, you're only halfway home when you get there. So answer the question.
13:58
You must have thought about it. If we adopt the race tires analysis,
14:04
what result?
14:06
So even under the race tires case, Your Honor...
14:10
Just answer the question. What result?
14:12
So it's nuanced, because the race tires case doesn't say...
14:17
The race tires case does say the district court has discretion, and it basically discussed
14:22
how there's certain types of ESI there is, and some there aren't. So there would be a difference.
14:27
There would be a difference, because under race tires, some costs...
14:29
We'd have to vacate the costs if we adopt race tires.
14:32
Well, some of the costs, because the race tires even acknowledges that there are certain ESI-related costs.
14:38
Some of the order-granting costs would be vacated, right?
14:41
And I guess the nuance you're suggesting would suggest a remand for the district court
14:48
to recalculate under the correct, what we've determined is the correct legal standard.
14:52
Is that right? I know you'd rather not end up there.
14:56
No, I understand.
14:57
You may not, but...
14:58
No, I understand.
15:00
So to the extent the court concludes that some of these ESI costs that were taxed...
15:04
Can you say yes or no to that?
15:06
Well, I guess it would have to be a remand if there's any portion of the cost judgment that you're reversing on.
15:13
So there would be a remand as to that.
15:15
But I don't think that race tires would dictate that 100 percent of the costs that were awarded by the district court...
15:22
Not 100 percent.
15:23
Correct. Not 100 percent.
15:25
And just to be clear, the district court, the case that it did rely on, the Jacobson Warehouse,
15:29
the types of costs that it said that are properly taxable are the cost to...
15:38
So making copies has been construed inclusively to encompass the costs for the production of metadata,
15:44
imaging drives, which is the 52 cell phones, file conversion, which is what happened here,
15:50
because the original software used to save these cell phones became defunct.
15:54
The data wasn't readable anymore, so CFR had to convert it with other different software to make it a readable format,
16:02
scanning and load file production.
16:05
Counsel, what made the keeping or the preservation of these electronic forms necessary in the case?
16:13
So preservation was necessary because of the preservation demand of the evidence,
16:18
and we anticipated we'd need to use this information...
16:20
Preservation of the what? Of the evidence?
16:24
Preservation of the electronically stored information.
16:29
What required it?
16:32
I thought you referenced demands in pre-litigation demands.
16:38
So the issue, as far as what required it, is the risk of a spoliation finding on evidence.
16:43
So if they make a preservation demand and we don't preserve the evidence,
16:46
and then it comes around time for trial, they make the discovery request and we don't have it,
16:49
they're going to file a motion for a spoliation finding.
16:52
It's going to be a negative inference back against the county saying,
16:55
well, there must have been something adverse in those cell phones.
16:57
So, yes, it was necessarily...
16:59
These costs were necessarily incurred for purposes of use at trial.
17:03
Now, also...
17:04
On the other side, it suggested that, you know, judgments made,
17:08
and I'm speaking more broadly about the cost of order rather than just the ESI here,
17:12
that are not ultimately used in the motion to dismiss here,
17:17
the judgment are not properly awarded.
17:20
What's your best case saying otherwise?
17:21
I forget the case that your friend on the other side cited,
17:24
but what's your case for suggesting that it's the reasonableness of the decision at the time that should control here?
17:34
So the cases stand for the proposition that...
17:38
I mean, talking about, like, depositions and transcripts and videos and things like that,
17:42
there were decisions made to get more.
17:45
And I'm looking for the best legal support that you look at that snapshot in time when those decisions are made.
17:51
Are they reasonably anticipated to be necessary for the litigation?
17:55
Or do we look at the district court's judgment and order here and say, look,
17:58
all that stuff didn't matter in the end?
18:01
Sure.
18:02
So the Eighth Circuit case on that, that the Eighth Circuit determined that the awarding of costs...
18:08
18:08
It's Zotos v. Lindberg School District 121F3rd 356-363, Eighth Circuit 1997,
18:16
that says the Eighth Circuit has interpreted the costs necessarily incurred for use in the case to mean,
18:23
quote, reasonably seem necessary at the time they were taken, unquote.
18:27
Thank you.
18:27
See, I've used up my time.
18:30
State's attorney will conclude.
18:42
Ms. Portillo?
18:44
Yes.
18:45
Good morning, Your Honors.
18:45
May it please the Court.
18:46
My name is James Portillo.
18:48
I represent State appellee Adam Dvorak.
18:51
We just submit that the award should be affirmed because it was in the district court's discretion.
18:57
And just replying to the points that opposing counsel made that defendants were, you know,
19:04
taking unnecessary depositions or ordering unnecessary transcripts,
19:08
the relevant question is whether these costs were reasonably necessary at the time they were accrued.
19:17
There were three separate periods of limited discovery that the district court ordered in these cases,
19:23
and these periods of limited discovery occurred over the defendants' strong opposition.
19:30
It's been the position since the beginning on the behalf of the State defendants, for instance,
19:35
that, you know, just glancing at the pleadings, we're entitled to qualified immunity.
19:40
And we tried to raise that to the district court, and the district court disagreed and sent us into discovery.
19:46
And so from our perspective, it was perfectly necessary to be, you know,
19:50
ordering copies of deposition transcripts while the litigation was ongoing.
19:55
And I say I'm about out of time, so if—
19:58
Had they decided to preserve before the case was filed?
20:03
Your Honor, those costs actually—no costs about preservation were awarded to the State defendants.
20:09
That's entirely the County defendants.
20:12
The State defendants was only awarded just for a couple of deposition transcripts here.
20:18
Thank you very much.
20:28
Just really briefly, thank you, Your Honor.
20:31
The Jacobson Warehouse case doesn't address forensic examination of cell phones.
20:37
Which case, though?
20:38
The Jacobson Warehouse case, which counsel was relying on, district court case.
20:45
You know, as for spoliation, you know, avoiding spoliation, they could have just preserved the phones, number one.
20:53
Number two, they do say that they had already imaged the phones.
20:56
That's Morton County brief at eight.
20:59
The fact that, for some reason, technology failed them later is not the plaintiff's fault.
21:08
What do you say about Zotos, though, that says it's the time where the decision's made that's relevant,
21:14
not whether it was ultimately used?
21:16
Zotos, that statement has been refined by the other four Eighth Circuit cases.
21:21
I cited McDowell, Little Rock, that say you still have to look narrowly at the wording of the statute, 1920,
21:29
which is were they necessarily obtained for use in the case.
21:33
And you can't just look at, well, let's defer to counsel saying we're going to spend the taxpayers' money,
21:40
you know, tens of thousands of dollars.
21:42
You know, let's look at what was actually necessary for the case.
21:46
Thank you, Your Honors.
21:48
Thank you, counsel.
22:01
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