THE COURT: YEAH, YOU DID. THE ANSWER IS YES, HE'S RIGHT, HE DID EXPLAIN THAT, SO GO AHEAD.
MS. CELLERI: I THINK WE WENT OVER EVERYTHING THAT I WOULD FOLLOW-UP.
THE COURT: ALL RIGHT. THANK YOU. ANYTHING FURTHER THAT YOU WANT TO SAY, SIR?
MR. SCOTT: NO.
THE COURT: ANY FURTHER DOCUMENTS THAT YOU WANT TO SHOW ME?
MR. SCOTT: NO, YOUR HONOR.
THE COURT: OKAY. I THINK WE'RE READY FOR ARGUMENT. HE'S RIGHT, YOU HAVE THE CLEAR AND CONVINCING BURDEN OF PROOF, SO YOU WILL HAVE A CHANCE TO GO FIRST.
YOU CAN EITHER STAND UP OR SIT DOWN, WHATEVER MAKES YOU MORE COMFORTABLE, WHEN YOU'RE GIVING YOUR CLOSING
ARGUMENT.
MS. CELLERI: AS YOU KNOW, I DO HAVE TO PROVE 1
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THIS BY CLEAR AND CONVINCING EVIDENCE, BUT TODAY WE ARE HERE TO TALK ABOUT THE CREDIBLE THREAT OF VIOLENCE THAT HE POSTED ON THERE, LEAN BACK, CLOSE YOUR EYES AND ENJOY THE SHOW.
THE COURT: THAT DOESN'T SAY HE'S GOING TO DO ANYTHING OR THAT THERE'S ANYTHING IMMEDIATE OR ANYTHING LIKE THAT; RIGHT?
MS. CELLERI: IT DOESN'T NECESSARILY MEAN HE WOULD DO IT HIMSELF.
THE COURT: RIGHT.
MS. CELLERI: BUT HE IS THE FORMER CHIEF OF THE U.S. BORDER PATROL. AND IN THAT ROLE HE HOLDS A CERTAIN RESPONSIBILITY. HE LEADS ONE OF THE LARGEST ARMED FORCES IN THIS COUNTRY.
THE COURT: I AGREE. AND I THINK HE
ACKNOWLEDGES HE WOULD DO THINGS DIFFERENTLY THE NEXT
TIME, BUT I THINK THAT'S A LONG WAY FROM SAYING THAT THAT WAS A CREDIBLE THREAT OF VIOLENCE OR INTENDED TO HAVE SOMEBODY ELSE CARRY OUT A THREAT OF VIOLENCE ON HER. AND I THINK THAT'S WHY JUDGE CAMPAGNA DENIED YOUR TRO TO
START WITH. I MEAN, YOU HAVE ADDITIONAL INFORMATION HERE, BUT THERE'S REALLY NOTHING OF SUBSTANCE THAT IS HERE THAT ELABORATES AND FLUSHES IT OUT A LITTLE BIT MORE, BUT YOU HAD EVERYTHING IN YOUR ORIGINAL, YOU KNOW, PAPERWORK. AND, YOU KNOW, I THINK JUDGE CAMPAGNA, YOU KNOW, HE SAYS, LOOK, EVEN WITHOUT HEARING FROM HIM, YOU KNOW, THAT'S NOT ENOUGH, LET ALONE CLEAR AND CONVINCING AFTER WE DO HEAR FROM HIM. AND I THINK THAT'S STILL THE 1
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SITUATION WE'RE IN. AND, YOU KNOW, I'VE LOOKED AT YOUR BRIEF, BUT, YOU KNOW, YOU DON'T HAVE ANY CASE, YOU KNOW, PENAL CODE 422 CASE, OR ANYTHING ELSE THAT SAYS THAT THIS WOULD BE PROSECUTABLE OR, YOU KNOW, THAT THIS IS
SOMETHING, YOU KNOW, THAT RISES TO THE LEVEL OF, YOU KNOW, A MEDIA NON-CONTINGENT WHATEVER, YOU KNOW, THREAT OF VIOLENCE, YOU KNOW, HARASSMENT. I THINK WE WOULD REALLY BE, YOU KNOW, NOT JUST MAKING NEW LAW, BUT GOING, YOU KNOW, WAY BEYOND, I THINK, WHAT WE CAN DO.
MS. CELLERI: EVEN IF IT ISN'T CONSIDERED A CREDIBLE THREAT OF VIOLENCE, IT COULD BE FOR THE INTENT TO HARASS, ALARM OR ANNOY.
THE COURT: THAT IS TRUE.
MS. CELLERI: SHE IS AN ACTIVE CRITIC OF THE BORDER PATROL. SHE, AS MR. SCOTT HAS LAID OUT FOR YOU TODAY, HAS BEEN AN ACTIVE CRITIC OF HIM, OF HIS ROLE, OF THE THINGS THAT THE BORDER PATROL HAS DONE. AND AT THE MOMENT HE BECAME NOT THE CHIEF OF BORDER PATROL HE MADE A COMMENT THAT COULD BE INTERPRETED IN SUCH A WAY THAT
WOULD INSTILL FEAR INTO MS. BUDD. AND HE MAY SAY THAT HE DID NOT KNOW THAT IT WAS A COMMON THREAT OR --
THE COURT: GENERALLY, WITH HARASSMENT THOUGH, AS I UNDERSTAND THE CASE LAW, GENERALLY, HARASSMENT IT'S GOT TO BE A PATTERN OF CONDUCT. WE USUALLY DON'T HAVE HARASSMENT WHERE IT'S JUST ONE COMMENT. THEN IT REALLY DOES GET BACK TO, OKAY, THAT'S JUST ONE COMMENT. DOES IT RISE TO A CREDIBLE THREAT OF VIOLENCE AND SO FORTH.
SO -- OR, YOU KNOW, WAS IT -- OR WAS IT SO EGREGIOUS 1
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THAT, YOU KNOW, IT WAS LIKE AN INTENTIONAL -- INTENTIONAL ATTEMPT TO INFLICT PSYCHOLOGICAL HARM ON HER, YOU KNOW, IF IT'S ONE THING. OKAY, I MEAN, I CAN UNDERSTAND THAT.
WHY WOULD YOU USE THAT CHOICE OF WORDS, ESPECIALLY WITH SOMEBODY THAT YOU KNOW HAS HAD THAT IN THEIR BACKGROUND IF YOU'RE NOT TRYING TO BE MEAN TO THEM, CONTROL THEM, YOU KNOW, TO DO SOMETHING LIKE THAT, YOU KNOW.
BUT, YOU KNOW, THEN I GET TO HIS INTENT. AND, YOU KNOW, HE'S GOT AN EXPLANATION FOR WHAT HE MEANT. AS YOU CAN TELL FROM MY QUESTIONING OF HIM AND SO FORTH, I FIND IT A LITTLE BIT HARD TO BELIEVE. I'VE NEVER HEARD OF THAT PHRASE AS BEING YOU HAVE AN ACTIVE IMAGINATION, ESPECIALLY THE
LEANING BACK ABOUT IT. WHY DO YOU PUT LEAN BACK? HE CAN'T EVEN GIVE ME AN ANSWER, SO I DON'T KNOW WHAT TO SAY ABOUT THAT. YOU KNOW, WHY DO YOU HAVE TO LEAN BACK TO IMAGINE?
WHAT DO YOU LEAN BACK TO DO? AND, YOU KNOW, THE FACT THAT IT'S BEEN SUCH A COMMON THING, BUT, YOU KNOW, IS IT CLEAR AND CONVINCING? I DON'T KNOW.
AND THEN I'M KIND OF WONDERING, YOU KNOW, DO WE JUST LIVE AND, YOU KNOW, EVERYBODY TALKS ABOUT HOW, YOU KNOW, THERE ARE TWO AMERICAS. DO WE JUST LIVE IN A WORLD WHERE PEOPLE ARE IN SO MUCH OF THEIR UNIVERSE THAT IT JUST NEVER CROSSES THEIR MIND THAT THIS WOULD BE A BAD THING. I DON'T KNOW. HARD AS IT IS FOR ME IN MY UNIVERSE TO BELIEVE THAT, YOU KNOW, CAN I SAY BY CLEAR AND CONVINCING EVIDENCE THAT, YOU KNOW, HE DELIBERATELY USED THAT CHOICE OF WORDS TO INVOKE TRAUMA IN SOMEBODY THAT HE KNEW WAS A RAPE VICTIM.
THAT'S, YOU KNOW -- CLEAR AND CONVINCING HAS TO MEAN 1
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SOMETHING, SO I JUST DON'T KNOW IF I'M THERE YET, JUST LIKE I DON'T THINK JUDGE CAMPAGNA WAS THERE.
MS. CELLERI: I MEAN, HE HAD THE OPPORTUNITY TO READ THE RESPONSES, AND ALL THE PEOPLE THAT FOUND IT TO BE A THREAT OF RAPE, AND THAT HE IN NO WAY --
THE COURT: WELL, YOU KNOW, WE KNOW HOW SOCIAL MEDIA WORKS. PEOPLE TAKE SIDES, YOU KNOW, THEY JUMP ON ONE WAY OR ANOTHER. I THINK PEOPLE KNOW WHAT THE
REFERENCE IS. WHETHER OR NOT WE PUT THESE PEOPLE UNDER OATH AND THEY SAY, YEAH, I READ THAT AS MEANING HE WAS GOING TO SEND BORDER PATROL AGENTS OUT TO, YOU KNOW, SEXUALLY ASSAULT HER, I MEAN, I DON'T TAKE THAT FROM
THOSE COMMENTS, PEOPLE JUST WANT TO BE SUPPORTIVE TO HER.
YOU KNOW, THEY'RE TALKING ABOUT RATIOS AND EVERYTHING ELSE, THAT'S HOW IT WORKS.
SO -- AND I THINK MAYBE WE'RE JUST BACK TO THE TWO WORLDS CONCEPT, YOU KNOW, IF WE'RE DOING THAT. YOU KNOW, CERTAINLY THERE ARE PEOPLE WHO ARE GOING TO SAY, YOU'VE GOT TO BE KIDDING ME. YOU KNOW, WHY WOULD HE SAY THAT?
OBVIOUSLY, PEOPLE KNOW WHAT THAT MEANS, BUT NOW I'VE, YOU KNOW -- BUT, AGAIN, I DON'T SEE THAT AS ANYBODY SAYING THAT THAT'S ACTUALLY GOING TO BE AN EXECUTED PLAN OR ANYTHING THAT ANYBODY THINKS, YOU KNOW, IS GOING TO TAKE HIM UP ON IT, THAT THEY'RE GOING TO TRACK HER DOWN AND PHYSICALLY HARM HER.
I THINK THE QUESTION WHETHER IT WAS, YOU KNOW, INTENTIONALLY INTENDED TO, YOU KNOW, EMOTIONALLY UPSET HER IS A LITTLE BIT DIFFERENT, BUT, YOU KNOW, WE DO HAVE, YOU 1
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KNOW, ONE INSTANCE OF THAT HARASSMENT. AND IT'S NOT LIKE HE FOLLOWED UP WITH A TROLL WAR. I MEAN, HE CAME BACK THE NEXT DAY AND TRIED TO EXPLAIN HIMSELF. WE CAN HAVE, YOU KNOW, DEBATE ABOUT HOW SINCERE THIS WAS, HOW EFFECTIVE IT WAS, WHETHER HE REALLY DID COME TO GRIPS WITH EXACTLY WHAT IT WAS THAT HE SAID, BUT, YOU KNOW, IT'S INCONSISTENT WITH THE
PATTERN OF HARASSMENT, I THINK, AND PUTS THE OTHER THING INTO CONTEXT, SO, YOU KNOW, I CAN UNDERSTAND THE REACTION WHY, YOU KNOW, PEOPLE THOUGHT IT WAS SIGNIFICANT, BUT IN TERMS OF CLEAR AND CONVINCING EVIDENCE -- THE OTHER THING WE HAVE IS I THINK ANY TIME YOU HAVE AN INJUNCTION, YOU KNOW, THIS IS NOT A TORTE ACTION WHERE WE'RE SAYING I DESERVE TO BE COMPENSATED FOR THE EMOTIONAL DISTRESS I HAVE FROM THIS, THIS IS -- WE NEED AN INJUNCTION TO RESTRAIN HIS FUTURE
CONDUCT AND HIS SPEECH. YOU KNOW, IT'S A PRIOR RESTRAINT ON SPEECH. FIRST AMENDMENT AND EVERYTHING ELSE.
AND, YOU KNOW, DO WE THINK THAT IF I DENY THIS RESTRAINING ORDER HE'S GOING TO START POSTING THINGS LIKE THIS AGAIN. I DON'T THINK SO. I DON'T KNOW IF IT'S
NECESSARY, YOU KNOW, TO DO THAT. I THINK, YOU KNOW, AS WE SAID, IT HAS BEEN AN EDUCATIONAL PROCESS, AND I DON'T KNOW THAT AN INJUNCTION IS GOING TO BE REQUIRED TO PREVENT
ANOTHER COMMENT LIKE THIS FROM BEING MADE. SO I HAVE THAT ASPECT, WHICH I THINK YOU'LL -- AT LEAST ON THE CIVIL
HARASSMENT SIDE, I THINK YOU'LL ALWAYS HAVE TO TAKE INTO ACCOUNT, ESPECIALLY WHEN WE'RE TALKING ABOUT SPEECH AND
PRIOR RESTRAINTS IN DECIDING WHETHER IT'S APPROPRIATE. SO I THINK I HAVE THOSE ISSUES AS WELL.
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MS. CELLERI: YOUR HONOR, IT GOES BEYOND THE RAPE ALLEGATIONS. IT ALSO SPEAKS TO HIM LOOKING INTO HER. HAVING THE FORMER CHIEF OF THE UNITED STATES BORDER PATROL LOOKING INTO YOU -- AND I UNDERSTAND THAT HE HAS THE BORDER PATROL TO LOOK AFTER, BUT SHE HAS BEEN VOCAL ABOUT HER RAPE, SHE'S BEEN VOCAL ABOUT WHAT IS GOING ON WITHIN BORDER PATROL, AS A FORMER AGENT AND HER
EXPERIENCES LIVING THROUGHOUT IT, AND WHAT SHE'S COME UP FRONT WITH IS THE FORMER CHIEF OF THE BORDER PATROL
SAYING THAT WHAT YOU'RE SAYING ISN'T TRUE. I'M GONNA LOOK INTO YOU. I'M GOING TO MAKE SURE THAT NOBODY
BELIEVES ANYTHING THAT YOU HAVE TO SAY. WHAT DOES THAT DO FOR WHISTLEBLOWERS?
THE COURT: I MEAN, THAT'S NOT MY JOB. I DON'T THINK MY JOB IS TO, YOU KNOW, FIGURE OUT THAT I'M THE WHISTLEBLOWER PROTECTION BOARD. AND I'M NOT SURE MY JOB IS TO SAY I'M GOING TO MAKE POLICY FOR THE BORDER PATROL ON HOW THEY RESPOND TO THIS. I MEAN, WHAT YOU'RE SAYING IS IF SOMEBODY'S GOT A CRITIC, AND SHE HAS A VIEW OF MY AGENCY, I HAVE A VIEW OF MY AGENCY, AND I'M GOING TO SEE IF I CAN FIND SOME THINGS THAT WILL CALL HER VIEWS INTO QUESTION, YEAH, WE MIGHT THINK THAT'S A TERRIBLE WAY TO HANDLE WHISTLEBLOWERS AND EVERYTHING ELSE AND, YOU KNOW, MAYBE THAT'S WHY WE HAVE THE CULTURE WE HAVE WITHOUT GETTING INTO WHETHER THE CULTURE EXISTS OR NOT, BUT FOR ME TO SAY I'M GOING TO ENJOIN SOMEBODY FROM DOING THAT, I'M GOING TO ENJOIN THE HEAD OF AN AGENCY FROM LOOKING INTO WHETHER OR NOT SOMEBODY'S CRITICIZING THEIR AGENCY 1
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IS CREDIBLE OR NOT, I -- YOU KNOW, I CAN'T DO THAT.
MS. CELLERI: THAT HE STILL BELIEVES THAT HE HAS THE ABILITY TO DO IT. I MEAN, HE'S RETIRED NOW AND HE'S SAYING --
THE COURT: HE'S RETIRED AND HE DEFENDS HIS AGENCY. HE HAS A DIFFERENT VIEW OF WHETHER OR NOT IT'S JUST A FEW BAD APPLES OR, YOU KNOW, A LOT OF PEOPLE
PROTECTING THE FEW BAD APPLES AND CIRCLING THE WAGONS AND EVERYTHING ELSE, I MEAN, WE HAVE THAT THOUGHT, BUT, YOU KNOW, TO SAY I'M GOING TO RESTRICT HIS RIGHT AS A PRIVATE CITIZEN TO SAY, YOU KNOW, SOMEBODY'S MAKING ALLEGATIONS, I DISAGREE WITH THEM, I'M GOING TO LOOK BACK TO SEE IF PEOPLE THINK SHE'S GENERALLY CREDIBLE OR DISGRUNTLED OR ANYTHING LIKE THAT, AND I'M GOING PUT A PRIOR RESTRAINT ON WHETHER HE CAN DO THAT OR, YOU KNOW, SAY THOSE THINGS OR SOMETHING, THAT'S, YOU KNOW, IN A MATTER OF PUBLIC CONCERN. IT'S A MATTER OF PUBLIC CONCERN. YOU HAVE NEW YORK TIMES VERSUS SULLIVAN AND ALL THAT KIND OF STUFF LIKE THAT. IT'S REALLY A STRETCH.
MS. CELLERI: YOUR HONOR, WE WOULD LIKE TO ASK THAT YOU ORDER THAT HE TAKE DOWN THIS MESSAGE.
THE COURT: I'M SORRY, THAT WHAT?
MS. CELLERI: YOU ORDER THAT HE TAKE DOWN THE TWEET THAT IS THREATENING DESPITE HIS INTENT BECAUSE OF HOW IT CAN BE PERCEIVED BY OTHERS.
THE COURT: WELL, I DON'T KNOW. WHAT'S YOUR THOUGHT ON WHETHER YOU KEEP IT OR TAKE IT DOWN?
MR. SCOTT: I'M TAKING IT DOWN NO MATTER WHAT.
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I JUST DIDN'T WANT TO DO THAT UNTIL THIS WAS OVER WITH.
THE COURT: HE SAID THAT, YOU KNOW, HE THOUGHT THAT IN CASE -- YOU KNOW, WE CAN SEE THAT. WE HAD YOUR PRINTOUT WHERE WE COULDN'T SEE A WHOLE RESPONSE HE MADE.
WHAT IF WE NEED TO GO BACK AND GET ON TWITTER TO SEE THE WHOLE THING. I MEAN, WE DIDN'T HAVE TO FOR THAT
PARTICULAR SEPTEMBER 16TH THING, BUT, YOU KNOW, WHAT IF WE HAD TO FOR WHAT HE HAD SAID FOR THIS TWEET OR
WHATEVER, AND IT MADE A DIFF- -- WHAT IF WE NEEDED TO GET METADATA FROM IT.
WE HAD SOMETHING ABOUT WHEN HER -- WE KNEW HIS WAS MADE AT 9:49, I DIDN'T SEE FROM THE PRINTOUT WHEN HERS WAS MADE, WHAT IF THAT BECAME RELEVANT. SO I AM GOING TO CREDIT HIS EXPLANATION ON THAT. AND HE'S REPRESENTING TO ME NOW THAT, YOU KNOW, ONCE THIS IS RESOLVED, IF -- YOU KNOW,
CERTAINLY, IF YOU'RE ASKING HIM TO DO IT AND HE DOES IT, YOU CAN'T COME BACK AND SAY HE SPOLIATED EVIDENCE OR ANYTHING LIKE THAT, SO I DON'T THINK I NEED TO MAKE AN ORDER ON THAT.
I THINK IT WILL HAPPEN EITHER WAY.
JUST LIKE I THINK -- AND, YOU KNOW, WHO CAN LOOK INTO THE HUMAN HEART OR WHATEVER, BUT JUST LIKE I DON'T THINK I NEED TO MAKE AN ORDER TO PREVENT HIM FROM MAKING A COMMENT LIKE THAT AGAIN. AND, AGAIN, THAT GOES TO
INJUNCTIONS THAT LOOK TO THE FUTURE RATHER THAN TOWARDS YOUR CRIME OR WHATEVER THAT GOES TO THE PAST. SO I'M NOT -- EVEN IF IT WOULD BE APPROPRIATE FOR ME TO DO THAT, I --
ESPECIALLY WHEN I'M MAKING A FINDING THAT YOU HAVEN'T PROVEN THE CASE BY CLEAR AND CONVINCING EVIDENCE, I DON'T KNOW THAT 1
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I CAN SORT OF MAKE SUBRULINGS ON THAT OTHERWISE, BUT I THINK THAT PROBLEM WILL TAKE CARE OF ITSELF.
AND TO THE EXTENT THAT SHE WAS ASKING FOR AN APOLOGY, AGAIN, I DON'T COMPEL SPEECH, I DON'T ORDER
APOLOGIES. I THINK IT WOULD HAVE BEEN BETTER IF MAYBE WE WERE A LITTLE BIT MORE UP FRONT ON THAT, EITHER ON THE
DIRECT MESSAGING OR IN THE RESPONSE, BUT IT'S ON THE RECORD NOW. ALL RIGHT. ANYTHING FURTHER?
MS. CELLERI: NO, YOUR HONOR.
THE COURT: OKAY. ALL RIGHT. SO FOR ALL THOSE REASONS THE REQUEST FOR A RESTRAINING ORDER IS DENIED.
THERE'S NO TEMPORARY THAT IS EXPIRING OR WHATEVER, SO I DON'T NEED TO DO ANYTHING ON THAT. AND CAN WE GIVE THESE EXHIBITS BACK TO YOU?
MS. CELLERI: YES, YOUR HONOR.
THE COURT: OKAY. SO YOU'LL STIPULATE TO HOLD THOSE EXHIBITS IF THEY'RE NEEDED, AND WE'RE ADJOURNED FOR THE DAY. THANK YOU.
MR. SCOTT: THANK YOU.
(THE PROCEEDINGS CONCLUDED.) 1
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I, CANDACE KHOROUZAN, CSR NO. 11579, REPORTER IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, HEREBY CERTIFY THAT I MADE A SHORTHAND RECORD OF THE PROCEEDINGS HAD IN THE WITHIN CASE AND THAT THE FOREGOING TRANSCRIPT IS A FULL, TRUE, AND CORRECT TRANSCRIPTION OF THE PROCEEDINGS IN THIS CASE.
DATED: NOVEMBER 22, 2021
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