[00:00:08] Speaker 03:
I may please the court.

[00:00:10] Speaker 03:
Brian Dunn on behalf of the plaintiff and appellants.

[00:00:13] Speaker 03:
I'd like to reserve five minutes of my time if that's at all possible.

[00:00:17] Speaker 03:
Go ahead.

[00:00:18] Speaker 03:
So when we look at the reasons for the court's granting of summary judgment, we start with the notion that the court did not address the clearly established prong of qualified immunity.

[00:00:31] Speaker 03:
It granted the motion exclusively on the basis of its determination that as a matter of law,

[00:00:39] Speaker 03:
The force used was objectively reasonable.

[00:00:42] Speaker 03:
And it arrested its entire decision on that basis.

[00:00:46] Speaker 02:
Reasonable on the basis that the officers fired in their own defense or defense of others?

[00:00:52] Speaker 03:
That they reasonably believed, yes, yes.

[00:00:55] Speaker 04:
That doesn't preclude us from deciding qualified immunity, correct?

[00:00:58] Speaker 03:
And I assume that the court would say that.

[00:01:01] Speaker 03:
And I must state at the outset that my argument

[00:01:07] Speaker 03:
for the lack of objective reasonableness, or my argument saying that the shooting, that a reasonable jury could have found that it was not objectively reasonable, is not nearly as strong as an argument that I might raise that the law was clearly established at the time to put them on notice as to the unlawfulness of this shooting.

[00:01:31] Speaker 03:
Put another way, you're going to look at it de novo.

[00:01:35] Speaker 03:
you're going to look at both prongs of this thing.

[00:01:39] Speaker 04:
I believe that... Can I talk about that?

[00:01:41] Speaker 04:
Because, I mean, in a normal appeal where qualifying immunity is an issue, we could just decide it on...

[00:01:49] Speaker 04:
and say it's not clearly established.

[00:01:52] Speaker 04:
I think this is different because, and correct me if I'm wrong, but there's a Bain Act issue here.

[00:02:00] Speaker 04:
And under the Bain Act, we have to decide whether there was a constitutional violation.

[00:02:06] Speaker 04:
And there's no qualified immunity for a Bain Act claim.

[00:02:08] Speaker 03:
That's correct.

[00:02:08] Speaker 03:
But there's also a wrongful death claim that

[00:02:11] Speaker 03:
It's separate and apart from the Bain Act.

[00:02:15] Speaker 04:
How is the wrongful debt?

[00:02:17] Speaker 04:
Is that basically a negligence claim under California law?

[00:02:19] Speaker 03:
They're based on negligence, and they're based on battery.

[00:02:21] Speaker 04:
Did the district court address that?

[00:02:22] Speaker 03:
Yes.

[00:02:24] Speaker 03:
And the district court concluded that because the shooting was not objectively reasonable, or because the shooting, I'm sorry, your honor.

[00:02:31] Speaker 03:
It was objectively reasonable.

[00:02:32] Speaker 03:
I'm going to get lost in these words.

[00:02:34] Speaker 03:
Because the shooting was objectively reasonable as a matter of law, the state law claims fail.

[00:02:40] Speaker 03:
And that is one of the reasons why I think that this appeal is really strong.

[00:02:47] Speaker 04:
I'm in your favor on that one.

[00:02:48] Speaker 04:
I'll be honest.

[00:02:49] Speaker 04:
I've long been a believer that state negligence claims if wrong.

[00:02:54] Speaker 04:
I haven't looked at wrongful death specifically, but I think there should have been a different analysis on that.

[00:03:00] Speaker 04:
At least should go to the jury and that's always my point is that well, I don't know about that But I think there's I'm not sure that the Fourth Amendment or the Bain Act conclusion Should address a wrongful death.

[00:03:14] Speaker 04:
So what?

[00:03:15] Speaker 04:
But we'll get into that with your opposing counsel.

[00:03:17] Speaker 04:
So this so wrongful death is is out there Are there other state claims?

[00:03:21] Speaker 04:
Is there just a flat-out negligence or no?

[00:03:23] Speaker 03:
Yeah, well what we usually do is we will bring a negligence claim and a battery claim under California law and

[00:03:31] Speaker 03:
And the negligence standard is somewhat more broad under Hayes, because it includes the pre-tactical considerations.

[00:03:38] Speaker 03:
The battery claim is more limited to the moment of the shooting.

[00:03:41] Speaker 03:
We also include a survival action under the Bain Act.

[00:03:48] Speaker 03:
And that dovetails back to the constitutional issue.

[00:03:52] Speaker 03:
The primary problem that I have with the lower courts ruling is that it kicked out the state law causes of action summarily.

[00:04:01] Speaker 03:
without addressing them.

[00:04:03] Speaker 03:
And the reason that it kicked out the state law claims was it said that because this shooting is objectively reasonable as a matter of law, those state law claims must also fail.

[00:04:14] Speaker 03:
For one, the analysis forecloses the breadth of the negligence claim, but on the other hand, or secondly, and as I'd like to argue to the court today, I just don't think there's enough there to say as a matter of law,

[00:04:29] Speaker 03:
that no jury could conclude that there was a problem with the shooting, that no jury could conclude that a reasonable officer would have found this, each of these shots to be.

[00:04:40] Speaker 04:
How do we conduct that analysis?

[00:04:43] Speaker 04:
It seems like we've got two questions here.

[00:04:44] Speaker 04:
How do we conduct that analysis under the Fourth Amendment?

[00:04:48] Speaker 04:
And then how do we conduct that analysis under the state law claims?

[00:04:51] Speaker 04:
And under the Fourth Amendment, what do we look to to determine whether this is objectively reasonable?

[00:04:57] Speaker 04:
I mean, we have some, I mean, they shot, if I remember right, in this case, they shot the bean bags first, right?

[00:05:06] Speaker 04:
And then they shot and he went down.

[00:05:12] Speaker 04:
They didn't.

[00:05:13] Speaker 04:
And that was basically all that happened here, right?

[00:05:17] Speaker 03:
I can't agree with all of that.

[00:05:20] Speaker 03:
A couple of things.

[00:05:20] Speaker 03:
Number one, taking a second point, they didn't just shoot and he went down and that was the end of it.

[00:05:27] Speaker 03:
If you listen to the video or the body cam footage, the audio very distinctively depicts when the shots are fired.

[00:05:37] Speaker 03:
And it is unmistakable that shots are fired at Mr. Leon as he's falling to the ground.

[00:05:44] Speaker 03:
And there's even a single shot fired after he is already on the ground.

[00:05:48] Speaker 03:
So they are not just firing, and then after he starts to fall, they stop firing.

[00:05:54] Speaker 03:
There are several shots that continue as he's falling, including the majority of the shots.

[00:05:59] Speaker 00:
Can I ask you, Mr. Dunn, we do see these cases, regrettably, from time to time, tragic, that involves

[00:06:06] Speaker 00:
loss of life, but in evaluating them, sometimes the cases involve a question of the initial shots, sometimes they involve a case of the latter shots, essentially on the theory that the latter shots were gratuitous, unnecessary.

[00:06:19] Speaker 00:
What is your theory here?

[00:06:20] Speaker 00:
Is it the initial shots or the latter shots or both?

[00:06:23] Speaker 02:
it's that every round has to be justified because every round that any officer presses off our cases don't don't say that council that the cases have we've been told by the Supreme Court time and time again that we have to account for the fact under that language from Graham versus Connor that these shootings occur under circumstances that are tense uncertain and rapidly evolving and we have to give a fair amount of

[00:06:51] Speaker 02:
deference to officers in the middle of a shooting to what lethal force is necessary in order to minimize or stop the threat and it seems to me having watched all of the body cam recordings and preparing for the argument that we're talking about something that occurred literally within a few seconds very very rapid and that

[00:07:18] Speaker 02:
is you acknowledge the beanbag rounds apparently were ineffective because of the fact that the decedent was under the influence of methamphetamine.

[00:07:29] Speaker 02:
The officers recognized that he was under the influence of something.

[00:07:33] Speaker 02:
and realized that the beanbag rounds were simply ineffective, and he was still advancing on them with the knife coming across the street.

[00:07:43] Speaker 02:
Was he?

[00:07:44] Speaker 03:
I cannot agree that he was advancing on them with the knife.

[00:07:46] Speaker 02:
I'm looking at that film.

[00:07:48] Speaker 02:
It's kind of like Scott versus Harris.

[00:07:50] Speaker 02:
It looks to me like no reasonable jury could find that he was not advancing on the officers armed with the knife that he was waving around.

[00:07:59] Speaker 02:
at the time that the decision to employ lethal force was initially made.

[00:08:04] Speaker 02:
So I'm having a hard time seeing your argument with regard to the first volley, if you will.

[00:08:10] Speaker 03:
First of all, there's two separate issues that have been raised, and I have to finish with your honor's question.

[00:08:16] Speaker 03:
What the court will say and what they've always said is that an officer is entitled to shoot until the threat ceases, right?

[00:08:24] Speaker 03:
They're entitled to shoot whether it be five rounds one round or 30 rounds They're entitled to shoot until the threat ceases no matter how many shots they fire however once the threat ceases

[00:08:38] Speaker 03:
They are no longer entitled to shoot.

[00:08:42] Speaker 02:
You told me that you're challenging the decision to fire the initial lethal rounds, are you not?

[00:08:49] Speaker 03:
I am challenging all the decisions to fire all of the rounds, but they aren't taken the same.

[00:08:54] Speaker 03:
the analysis that they were looking at or the threat that they purportedly saw is not the same as the latter rounds are fired.

[00:09:04] Speaker 03:
And it's a very important issue and I wasn't able to adequately address it because it goes to your point as well, Your Honor.

[00:09:10] Speaker 03:
They have to be responsible for every shot such that they aren't allowed to deploy lethal rounds if the threat no longer exists.

[00:09:18] Speaker 03:
Now, what the court brought out was he's holding a knife and he's waving a knife.

[00:09:22] Speaker 02:
And you can see that on the video cams.

[00:09:25] Speaker 03:
But there's no case, federal or state, that says you can shoot a man just for waving a knife.

[00:09:30] Speaker 02:
As he's advancing on you when he's 15 or 20 feet away?

[00:09:33] Speaker 02:
I mean, it doesn't take very long to close that distance.

[00:09:37] Speaker 02:
And now you've got a guy with an 8-inch blade.

[00:09:40] Speaker 02:
You've got one civilian who is handcuffed on the street either kneeling or laying down with an officer who's laid his rifle down in order to cuff him.

[00:09:53] Speaker 02:
So you now have two people that can't defend themselves and it's the third officer who's one of the first ones to fire.

[00:10:01] Speaker 03:
Well, I just saw the video this morning and I don't think that civilian is in the same position

[00:10:06] Speaker 03:
that he was in at the time the shots were fired.

[00:10:09] Speaker 02:
In other words, he's not able to defend himself, is he?

[00:10:12] Speaker 03:
Well, he's behind the officers at that point, though.

[00:10:14] Speaker 03:
He's no longer in the middle.

[00:10:15] Speaker 02:
Basically with him, there are two officers that are very close to him, right?

[00:10:20] Speaker 02:
One of them probably is still hanging on to him.

[00:10:24] Speaker 02:
They had moved him back away from where... But you're still not addressing the officer, the perspective of a reasonable officer on the scene.

[00:10:35] Speaker 02:
He's got a suspect that may be high on something and is advancing on him, waving the knife, and he's closing the distance.

[00:10:43] Speaker 03:
Well, again, I have a serious issue with closing the distance because he's just not, Your Honor.

[00:10:47] Speaker 03:
If you look at the video, he's out there.

[00:10:50] Speaker 03:
I don't want to dance, and I don't want to do any state court demonstrative thing.

[00:10:54] Speaker 03:
If we were in state court, I would have been showing the video and pausing it and showing it.

[00:10:58] Speaker 02:
I have the image in my mind.

[00:11:00] Speaker 03:
I know what you're talking about.

[00:11:00] Speaker 03:
But he's just not moving towards him.

[00:11:03] Speaker 03:
Laterally, he's holding it, and he's doing this kind of movement.

[00:11:07] Speaker 03:
But that is categorically distinguishable from charging.

[00:11:09] Speaker 02:
He's not dropping the knife.

[00:11:11] Speaker 02:
That's the problem.

[00:11:12] Speaker 02:
He's ordered in English and Spanish, and he's not complying with the command.

[00:11:16] Speaker 03:
I agree with you completely.

[00:11:17] Speaker 03:
Drop the knife.

[00:11:19] Speaker 03:
Suspect does not drop the knife.

[00:11:20] Speaker 03:
That does not make the shooting objectively reasonable.

[00:11:23] Speaker 03:
He has to be threatening someone with that knife.

[00:11:25] Speaker 02:
And you're saying that because why?

[00:11:27] Speaker 02:
He was only 15 feet away.

[00:11:30] Speaker 02:
That's not a threat.

[00:11:31] Speaker 03:
I think it was more like 25.

[00:11:33] Speaker 04:
And what if it had been five feet?

[00:11:35] Speaker 04:
I mean, is that what this case hinges on?

[00:11:38] Speaker 03:
It hinges on what the officers are perceiving, and is it fair to conclude that absolutely no reasonable officer would see this otherwise?

[00:11:51] Speaker 03:
Because summary judgment based on the objective reasonableness presupposes that this is such a good shooting

[00:11:59] Speaker 03:
That as a matter of law, no jury, no reasonable jury could.

[00:12:03] Speaker 04:
I'm not sure that's correct, counsel.

[00:12:05] Speaker 04:
I don't think that objectively reasonable means we go out and, you know, show the video to a hundred police officers and if, you know,

[00:12:19] Speaker 04:
I mean, if it's 50-50, you get to go to the jury, but you're saying if it's 95-5, saying it's reasonable, you still get to go to the jury.

[00:12:28] Speaker 03:
I always, well, that is a great point.

[00:12:32] Speaker 03:
But I do stand by the notion that all inferences should be drawn in favor of the non-moving party.

[00:12:41] Speaker 03:
And if we're looking at a video, and there are two interpretations, and one of them has him moving laterally,

[00:12:47] Speaker 03:
And one of them has him advancing towards the officer.

[00:12:50] Speaker 04:
Well, we look at the video.

[00:12:52] Speaker 04:
We look at the video.

[00:12:53] Speaker 04:
But that's the problem.

[00:12:54] Speaker 04:
There's not a factual dispute about that.

[00:12:56] Speaker 04:
We watch the video, and we figure that out.

[00:12:59] Speaker 03:
I mean, well, that's a great point.

[00:13:02] Speaker 03:
Interpretational dispute versus factual dispute, the court has indicated that he is advancing towards him.

[00:13:11] Speaker 03:
One of the officers says that he's running towards him.

[00:13:14] Speaker 03:
We clearly don't see that.

[00:13:16] Speaker 02:
But the question really is, is he shot in the middle of the street, right?

[00:13:19] Speaker 02:
He gets out of the car.

[00:13:20] Speaker 02:
It's out of the car and he moves toward the other side of the street and he's actually shot in the street.

[00:13:26] Speaker 03:
That is absolutely.

[00:13:27] Speaker 02:
I mean, maybe we're quarreling over the meaning of the word advance, but he has moved from a position where he clearly was not a threat sitting inside the truck.

[00:13:38] Speaker 02:
and he's gotten out and now he's moving into the street towards three officers, a civilian and two officers, and two of the three are not necessarily in a position to defend themselves from his advance.

[00:13:54] Speaker 03:
Understanding that lethal force is a last resort and understanding that

[00:14:01] Speaker 03:
Once those shots are fired, you can't take them back.

[00:14:03] Speaker 03:
Right.

[00:14:05] Speaker 02:
They're going to kill us back.

[00:14:05] Speaker 02:
But they deployed four bean bag rounds, and apparently with little effect.

[00:14:10] Speaker 03:
It's not as if the shots were attenuated in any temporal way from the bean bag rounds.

[00:14:17] Speaker 02:
I understand.

[00:14:18] Speaker 02:
Because of the distances involved, I mean, this all happened very, very quickly.

[00:14:22] Speaker 03:
I mean, did it have to happen this quickly is my point, Your Honor.

[00:14:25] Speaker 03:
Could they have given him time?

[00:14:27] Speaker 03:
Now, this is the question.

[00:14:29] Speaker 03:
You have a man with a knife.

[00:14:30] Speaker 03:
You have a man who's mentally impaired with a knife.

[00:14:33] Speaker 03:
You have a man who's mentally impaired with a knife who's not obeying them with a knife.

[00:14:38] Speaker 03:
And you've got shooters.

[00:14:39] Speaker 03:
But if he's charging at them, there is going to be some kind of a demonstrative act.

[00:14:46] Speaker 03:
He is going to point his body towards them.

[00:14:49] Speaker 03:
He is going to run towards them.

[00:14:50] Speaker 03:
He's going to have that knife out.

[00:14:52] Speaker 03:
He's going to have it up over his head.

[00:14:54] Speaker 03:
He's going to do something towards them.

[00:14:58] Speaker 03:
He's not moving towards them.

[00:14:59] Speaker 03:
He's moving around like this.

[00:15:01] Speaker 03:
He's moving to the side.

[00:15:03] Speaker 00:
You're now getting at the key issue, which is he was not doing this and running at them with the knife.

[00:15:10] Speaker 00:
But the question is, we don't know what he would have done

[00:15:13] Speaker 00:
Next, he definitely was moving towards that yellow line, whether directly at the officers or slightly diagonal, the video.

[00:15:20] Speaker 00:
I don't know that that's material.

[00:15:21] Speaker 00:
But where he starts and where he ends up is some distance.

[00:15:25] Speaker 00:
And so the question, I guess, that the case raises is, how much longer did they need to wait?

[00:15:30] Speaker 00:
And is that not something that's covered by the reasonableness that Graham allows officers to have?

[00:15:36] Speaker 03:
Well, you just nailed the issue.

[00:15:38] Speaker 03:
I mean, just spot on.

[00:15:40] Speaker 03:
We don't know what he's going to do.

[00:15:41] Speaker 03:
How long do they have to wait?

[00:15:43] Speaker 03:
They have to see him under these circumstances because he's 25 feet away.

[00:15:49] Speaker 03:
How long is it going to take him to close the distance?

[00:15:51] Speaker 03:
Three, four seconds if he starts really running towards him, but he's not running at all.

[00:15:57] Speaker 03:
How long do they have to wait?

[00:15:59] Speaker 00:
Right, but that starts to raise real safety questions, right?

[00:16:02] Speaker 00:
Because you have him moving towards them in some form or fashion.

[00:16:06] Speaker 00:
He has a weapon.

[00:16:07] Speaker 00:
And they're surrounding him in a sort of partial semicircle.

[00:16:13] Speaker 00:
And so certain people are going to be unable to shoot because they're going to be shooting essentially at their fellow officers.

[00:16:19] Speaker 00:
And so it's down to the people who he's coming towards.

[00:16:22] Speaker 00:
And they have to make a fairly quick judgment as to what his intentions are.

[00:16:29] Speaker 00:
And does Graham not give them some measure of leeway on that?

[00:16:33] Speaker 00:
Even if in hindsight we can look at this and say, well, gosh, maybe you should have waited another second.

[00:16:38] Speaker 03:
Well, perhaps the idea of waiting another second could save the life of this individual.

[00:16:44] Speaker 03:
And I don't know if the case law says that you were supposed to err on the side of using lethal force with an edged weapon.

[00:16:51] Speaker 03:
If it's a gun, totally different story.

[00:16:54] Speaker 03:
I'll give you that.

[00:16:55] Speaker 03:
Totally different story.

[00:16:56] Speaker 03:
But with an edged weapon, there has to be some form of provocative act.

[00:17:01] Speaker 04:
And whichever way you look at that.

[00:17:03] Speaker 04:
Why isn't ignoring not being affected by the being back shot, ignoring the command to put the weapon down and to stop, and advancing towards the officer, why isn't that provocative enough?

[00:17:17] Speaker 03:
Well, again, the court is

[00:17:19] Speaker 03:
fixated on advancing on the officer.

[00:17:22] Speaker 04:
I can't see that.

[00:17:24] Speaker 04:
I'm also focused on ignoring a command.

[00:17:27] Speaker 04:
I'm not entirely sure.

[00:17:29] Speaker 04:
Look, when the police command you to do something, you do it.

[00:17:34] Speaker 04:
And obviously, when it comes to a weapon, all bets are off if you ignore the command.

[00:17:42] Speaker 04:
Now, I'm giving you my view of constitutional law.

[00:17:45] Speaker 03:
It's also a view of survival.

[00:17:48] Speaker 03:
Any person that is not mentally ill will drop that knife.

[00:17:52] Speaker 03:
Any person that is not compromised.

[00:17:54] Speaker 04:
Okay, but now you get into, and I had this in the Tabaras case, now you get into, did the officers know that he was mentally ill?

[00:18:01] Speaker 04:
I mean, I don't think it's fair to say

[00:18:04] Speaker 04:
Oh, well, we're willing to make a judgment call on whether they're mentally ill and then... Oh, that's not what I'm saying.

[00:18:11] Speaker 03:
And I get your point.

[00:18:13] Speaker 03:
I'm not trying to say that they should have known that.

[00:18:15] Speaker 03:
They're not psychs.

[00:18:16] Speaker 03:
They're not shrinks.

[00:18:16] Speaker 02:
They're not going to know whether he's mentally ill and... We did have two officers on the scene who were drug recognition experts, and they are least qualified to conclude that he's exhibiting behavior that is consistent with being under the influence of...

[00:18:30] Speaker 02:
Either alcohol, drugs, or in this case both.

[00:18:33] Speaker 03:
But we don't kill people for that.

[00:18:34] Speaker 03:
Pardon?

[00:18:35] Speaker 03:
We wouldn't kill a man for being under the influence of drugs and disobedience.

[00:18:39] Speaker 02:
That goes into the analysis as to whether or not there's an explanation for why he wasn't obeying their commands because of the fact that he was

[00:18:51] Speaker 02:
essentially not in total control of his mental faculty.

[00:18:55] Speaker 03:
But is he trying to stab someone with that knife?

[00:18:57] Speaker 03:
What makes him more dangerous?

[00:18:59] Speaker 03:
But is he, is his lack of faculties or is his lack of apprehension of what's happening around him, does that mean that he is trying to stab someone?

[00:19:07] Speaker 02:
Because the only reason why they... If he gets out of the truck and he's displaying the knife, waving it around and refusing to drop the knife because of the fact that he's drunk and high on methamphetamine,

[00:19:21] Speaker 02:
Why doesn't that make him even more dangerous than if he were encountered in a situation where he was still sober?

[00:19:28] Speaker 03:
Because it doesn't conclude that he is going to stab someone with the knife such that he must be killed before he stabs them.

[00:19:36] Speaker 03:
Hypothetically speaking, suppose there's no shooting and he continues to laterally move to the side and he just continues to move all the way out of view to the side.

[00:19:45] Speaker 03:
He is probably

[00:19:48] Speaker 03:
in a situation where at least they have more force options.

[00:19:52] Speaker 03:
There's a dog there.

[00:19:53] Speaker 03:
There's a perimeter there.

[00:19:54] Speaker 02:
Well, you're probably not going to release the canine if the suspect has an 8-inch knife.

[00:20:00] Speaker 02:
That's a good way to get the dog killed.

[00:20:03] Speaker 03:
Well, at some point, we have to consider reverence for human life.

[00:20:06] Speaker 03:
And we have to consider.

[00:20:08] Speaker 02:
But the canine officer is not going to want to sacrifice the dog if the dog's going to get killed before the dog can disarm the suspect.

[00:20:19] Speaker 02:
uh... well because the dog wasn't deployed and because we don't have a consideration as to that uh... i'm not uh... well we have a case law that says that it's not a continuum there's there there's not a step ladder approach to non-lethal force that you have to go through step one two three four before you get to lethal force and they did try non-lethal options they gave him warnings they ordered him to drop the knife they used the beanbag rounds but he still gets out uh... and

[00:20:48] Speaker 03:
Watch the video.

[00:20:50] Speaker 03:
I'm sorry, you're running out of time here.

[00:20:53] Speaker 03:
You're way over.

[00:20:54] Speaker 03:
But I mean, what I'm saying is, you watch it, okay?

[00:20:58] Speaker 03:
You can hear that the beanbag has more of a hollow sound.

[00:21:02] Speaker 03:
And then it's a thunker sound.

[00:21:04] Speaker 02:
You can see the beanbag rounds on the street after they bounced off him.

[00:21:08] Speaker 03:
Yeah, there's no time.

[00:21:11] Speaker 03:
There's no discernible time interval.

[00:21:13] Speaker 03:
But the point is the beanbag didn't work.

[00:21:16] Speaker 03:
They weren't working.

[00:21:16] Speaker 03:
I'm sorry, Your Honor.

[00:21:17] Speaker 03:
I cut you off.

[00:21:18] Speaker 04:
No, no, no.

[00:21:20] Speaker 04:
I think maybe what we ought to do is give you a little bit of time for rebuttal.

[00:21:23] Speaker 04:
I mean, I don't want to cut this off.

[00:21:26] Speaker 03:
This is great.

[00:21:27] Speaker 03:
But the one thing that I don't think the factual record supports the conclusion that they tried the beanbag.

[00:21:34] Speaker 03:
It failed.

[00:21:35] Speaker 04:
And then they waited.

[00:21:35] Speaker 04:
You want them to wait.

[00:21:37] Speaker 03:
I want the man to live, is what I want.

[00:21:40] Speaker 04:
I hear you.

[00:21:41] Speaker 04:
I hear you.

[00:21:41] Speaker 03:
All right.

[00:21:42] Speaker 04:
We all, we actually all share that.

[00:21:44] Speaker 03:
Yeah.

[00:21:45] Speaker 03:
Thank you.

[00:21:45] Speaker 04:
All right, thank you.

[00:21:56] Speaker 01:
Good morning, may it please the court, Scott Davenport for the appellees, City of Fullerton, Officers Green and Valdez.

[00:22:03] Speaker 01:
Before I begin, let me make a couple things perfectly clear that popped up during oral argument today.

[00:22:08] Speaker 01:
This is not an excessive force case.

[00:22:11] Speaker 01:
It's not even a qualified immunity case.

[00:22:13] Speaker 01:
This is a straight-up waiver case.

[00:22:15] Speaker 01:
That's how this court should analyze it.

[00:22:17] Speaker 01:
Straight-up what?

[00:22:18] Speaker 01:
Waiver.

[00:22:19] Speaker 01:
Waiver.

[00:22:20] Speaker 01:
Yes.

[00:22:21] Speaker 01:
Let me talk about that a little bit.

[00:22:23] Speaker 01:
You know, there's a cardinal principle in law going back to, I don't know, U.S.

[00:22:26] Speaker 01:
v. Rumley, probably before that.

[00:22:29] Speaker 01:
that if a case can be resolved on non-constitutional grounds rather than constitutional grounds, that's how it should be resolved.

[00:22:35] Speaker 01:
And that's exactly what this case is.

[00:22:38] Speaker 01:
But wait, what's waived?

[00:22:39] Speaker 04:
I mean, I understand, I thought, Monell and Due Process claims

[00:22:44] Speaker 04:
I understand those.

[00:22:45] Speaker 04:
I guess we didn't ask what the response is.

[00:22:47] Speaker 04:
But I mean, I view those as waived.

[00:22:49] Speaker 04:
But tell me why the Fourth Amendment.

[00:22:51] Speaker 01:
That's one of them, Your Honor.

[00:22:53] Speaker 04:
And I appreciate that.

[00:22:54] Speaker 04:
But why is the Fourth Amendment and the Bain Act and the wrongful death claims waived?

[00:22:59] Speaker 01:
And that's the third one.

[00:23:00] Speaker 01:
Let me start with the first one.

[00:23:01] Speaker 01:
As to the excessive force case, the court granted summary judgment on both the reasonableness of the force and also on qualified immunity.

[00:23:10] Speaker 01:
That's back in the excerpts of record at page 22.

[00:23:13] Speaker 01:
Their brief addresses only the issue of force.

[00:23:17] Speaker 01:
They never address qualified immunity whatsoever in their brief.

[00:23:21] Speaker 01:
When you attack one of multiple bases for a grant to some rejection... So your point is we can only deal with the underlying constitutional violation.

[00:23:29] Speaker 04:
We can't deal with qualified immunity?

[00:23:31] Speaker 01:
That's right.

[00:23:34] Speaker 01:
Okay.

[00:23:34] Speaker 04:
I mean, at the end of the day, it seems like we have to address the constitutional violation.

[00:23:39] Speaker 01:
My point is, when the summary judgment is based on two items, and they attack one of them, for lack of a better word, I don't mean to be flip about this, but who cares?

[00:23:50] Speaker 01:
There was two grounds for the basis of summary judgment.

[00:23:52] Speaker 01:
He attacked one of them.

[00:23:53] Speaker 04:
Okay, and that may apply to the federal claim, but that doesn't apply to the Bain Act claim.

[00:23:57] Speaker 01:
Thank you.

[00:23:58] Speaker 01:
And that's the third waiver.

[00:23:59] Speaker 01:
We've talked about the first one.

[00:24:01] Speaker 01:
The two bases, the second one goes to the Monell-Mondue process.

[00:24:06] Speaker 01:
The third one are these state law claims.

[00:24:09] Speaker 01:
What briefing did we have on the state law claims?

[00:24:13] Speaker 01:
We've got two sentences, no citation at all.

[00:24:17] Speaker 01:
and just says well because we think there's a tribal issue you should reverse the state law claims too.

[00:24:23] Speaker 01:
That's not enough and I refer the court to Badgley versus U.S.

[00:24:27] Speaker 01:
957 F-3RD 969.

[00:24:30] Speaker 04:
Well that may be so that's interesting that may be as to wrongful death and battery but that's not as to Bain Act because Bain Act

[00:24:39] Speaker 04:
rolls into the Fourth Amendment, doesn't it?

[00:24:41] Speaker 01:
No, no, sure, it absolutely is.

[00:24:43] Speaker 04:
It's a state law claim that he has... Well, right, but it's a state law claim that is violated.

[00:24:49] Speaker 04:
I mean, you tell me, is there a difference between the Bain Act claim and a Fourth Amendment claim?

[00:24:54] Speaker 04:
The Bain Act, as I read it, is wholly based on a violation of the Fourth Amendment.

[00:24:58] Speaker 01:
There is, and I would have loved to have briefing on this.

[00:25:01] Speaker 01:
And it's a little, it's a little, um, honest to God, if you're a little sandbag to come in here and have something that was not raised in the briefing, all of a sudden gets sprung on me in court.

[00:25:10] Speaker 01:
That's the reason for the waiver argument here.

[00:25:13] Speaker 01:
you can't commit an oral argument and say, well, wait a minute, this is just like this, and spend the first five minutes of your argument talking about how these state law claims are still viable, and talk about Hays, and talk about the lower standards.

[00:25:24] Speaker 00:
Do you think the Bain Act analysis is different than the Fourth Amendment analysis, or is your position you don't know because you haven't had a chance to brief that?

[00:25:33] Speaker 01:
I know because of other cases I've had, but it is different.

[00:25:37] Speaker 00:
How is it different?

[00:25:38] Speaker 01:
Again, it's sort of beyond the scope of where we're going.

[00:25:43] Speaker 00:
It may not be because, I mean, the arguments being made, listen, the Fourth Amendment, objectively unreasonable test, that slots right into the Bain Act.

[00:25:56] Speaker 00:
If that's true, then it's not clear what more they needed to say about the Bain Act.

[00:25:59] Speaker 00:
If it's not true, then you have an argument on waiver.

[00:26:02] Speaker 01:
I think I have an argument on waiver either way.

[00:26:04] Speaker 01:
They should have at least, at the very minimum, briefed how it was similar, how this works out.

[00:26:08] Speaker 00:
But on the Bain Act, how does it differ just based on your understanding?

[00:26:13] Speaker 01:
If that's going to be the basis of this decision, I think that we should have a chance to do a supplemental letter on that, because that's not something that has been put forth at all, wasn't even put forth in the reply brief, frankly.

[00:26:29] Speaker 04:
So the thing about waiver, one thing we all agree on, apparently, is that the Fourth Amendment claim is before us.

[00:26:36] Speaker 04:
Yes.

[00:26:37] Speaker 04:
But your point is, I see, your point is, it doesn't matter, because you get qualified immunity anyway.

[00:26:43] Speaker 01:
That's exactly right.

[00:26:44] Speaker 01:
We need not reach that issue because you haven't attacked both bases for the summary judgment.

[00:26:52] Speaker 04:
I got to go back.

[00:26:53] Speaker 04:
Did you raise all this waiver argument in your opposition?

[00:26:57] Speaker 01:
Absolutely.

[00:26:58] Speaker 01:
Absolutely.

[00:27:02] Speaker 01:
Where am I?

[00:27:03] Speaker 01:
Pages 11 to 12 and 25 to 30 of my brief.

[00:27:06] Speaker 01:
That's eight pages.

[00:27:08] Speaker 01:
We got no response at all on that issue in their reply brief.

[00:27:13] Speaker 01:
You know, frankly, that's another waiver.

[00:27:15] Speaker 01:
They don't even address waiver at all at any point.

[00:27:18] Speaker 01:
So that's how this case should be teed up.

[00:27:22] Speaker 01:
You know, when the Supreme Court addresses these thorny constitutional issues, you see these long opinions about standing and rightness.

[00:27:34] Speaker 01:
and things addressing non-constitutional issues, rather than just jumping to right in the meat of it, whatever he wants to talk about.

[00:27:40] Speaker 04:
Fair enough.

[00:27:41] Speaker 04:
I take your point.

[00:27:42] Speaker 04:
I think we need to go back and look at that, at the waiver issue.

[00:27:46] Speaker 04:
Let's, for purposes, you still got nine minutes, for purposes of the fact that if we don't agree with you on one or more of these claims, can you tell us why, as to the Fourth Amendment claim, I mean, qualified immunity, you know, I'm not sure we need to go, I mean,

[00:28:03] Speaker 04:
He didn't exactly make the most vociferous argument on qualified immunity.

[00:28:07] Speaker 04:
His argument was focused on the Fourth Amendment reasonableness.

[00:28:12] Speaker 04:
Tell us why this isn't reasonable or why this is reasonable under the Fourth Amendment.

[00:28:17] Speaker 01:
Sure I will you know I would before I do that I would point out that it's it's a bit of a Pyrrhic victory if he were to.

[00:28:22] Speaker 04:
I understand you've made your point.

[00:28:24] Speaker 01:
All right thank you I appreciate that you know I think it is this is clearly a Scott versus Harris case it's become a big part of my practice since the you know explosion of body-worn camera and cell phones and by the way I

[00:28:39] Speaker 01:
I love it, it's changed the way I practice law, it's changed the way we do policing.

[00:28:43] Speaker 01:
This is normally where I go and do a deep dive on Scott, but given that it was pinned in 2007.

[00:28:51] Speaker 04:
Are you outside council or you're with the government?

[00:28:55] Speaker 04:
I'm outside council, James Mayer, yeah.

[00:28:57] Speaker 04:
So I can't ask you, at least to go back to your client and say, can you help us out by not... Can the police do something to keep these cases from coming up?

[00:29:07] Speaker 04:
Because at the end of the day,

[00:29:09] Speaker 04:
We do have a dead person that arguably didn't need to die.

[00:29:17] Speaker 01:
You know, I understand the court's concerned.

[00:29:21] Speaker 04:
But all I'm saying is, can you go back and say, the court has a concern about these.

[00:29:26] Speaker 04:
We're going to deal with the cases the case needs to be dealt with.

[00:29:29] Speaker 01:
But boy, we'd all like to see less of this.

[00:29:32] Speaker 01:
I appreciate that, Judge.

[00:29:33] Speaker 01:
And I think we all share that concern as something that's continually reevaluated.

[00:29:38] Speaker 01:
Like I said, I would normally do a deep dive on Scott, but this was in 2007.

[00:29:43] Speaker 01:
It came into Justice Scalia's courtroom.

[00:29:45] Speaker 01:
There are people on this panel that know more about Scott than I ever will.

[00:29:49] Speaker 01:
But I think what's ironic about this case is both sides are saying the same side, which just watched the video, and that's come out over and over again.

[00:29:58] Speaker 01:
In fact, opposing counsel here in their opposition, they didn't submit any new evidence other than this amalgam video, the same six videos that we showed, which by the way was a really neat thing.

[00:30:09] Speaker 01:
I'm going to start using that in my MSJs going forward.

[00:30:13] Speaker 01:
There's no additional evidence.

[00:30:15] Speaker 01:
It is just this video.

[00:30:18] Speaker 01:
And that's what it comes down to.

[00:30:21] Speaker 01:
And everybody sees the same thing, which is you see a man who is not obeying commands, who they believe to be under the influence.

[00:30:30] Speaker 04:
Again, we've come up with a thing here about- Is that, where in our analysis do we look at this?

[00:30:36] Speaker 04:
They command him, they shoot the beanbags.

[00:30:38] Speaker 04:
Are they then entitled to shoot?

[00:30:42] Speaker 01:
on the beat no on the beat bags known and and and i want to answer that before i do i i i i just thought of something he'd mentioned mental illness there's no evidence before i am or that those men don't worry about that thank you uh... but but answer my question ship what what point did it become reasonable issue he went when he stepped out of the van was a reasonable it's when the threat continued when the officers felt that they were in reasonable danger

[00:31:07] Speaker 01:
for their fear, for the fear of their fellow officers, and for the fear of the civilian who was handcuffed and incapacitated.

[00:31:14] Speaker 01:
You know, it's important to remember here that

[00:31:20] Speaker 04:
He was also... I'm not sure you're answering my question.

[00:31:23] Speaker 04:
So, could they... What if they had not shot bean bags?

[00:31:26] Speaker 04:
Sure.

[00:31:27] Speaker 04:
Yeah, what if they hadn't used bean bags first and they just ordered him, he didn't stop, and they shot?

[00:31:33] Speaker 04:
That would have been reasonable?

[00:31:34] Speaker 01:
We'd be having a different conversation here.

[00:31:36] Speaker 01:
There would be more conversations about, did you use the less intrusive means?

[00:31:41] Speaker 01:
And I'd be talking about how they're not required to.

[00:31:43] Speaker 01:
They're only required to act reasonable under the totality of a certain situation.

[00:31:47] Speaker 01:
I think it probably would have been.

[00:31:49] Speaker 01:
But that's, again, that's... You think it would have been reasonable?

[00:31:51] Speaker 01:
To answer your question, yeah.

[00:31:53] Speaker 01:
That's not before the court, but I'm going to be straightforward.

[00:31:55] Speaker 04:
Once they shoot the bean bags and it doesn't stop him and he still disobeys command, is it a categorical rule at that point

[00:32:05] Speaker 01:
that they're entitled to shoot i think that that's probably overstating but i think that under these facts it was and and what about these facts makes that clear

[00:32:17] Speaker 01:
You've got to remember, even after he was shot with multiple rounds of beanbags, and even after he was shot with bullets and went down, he got back up again.

[00:32:25] Speaker 01:
He started to get back up and put the knife to his throat again.

[00:32:29] Speaker 01:
So it's not like... And they didn't shoot at that point, right?

[00:32:31] Speaker 01:
They did not shoot.

[00:32:32] Speaker 01:
But if he'd have stood up and continued advancing, they would have shot again.

[00:32:36] Speaker 00:
Do the beanbags really matter here?

[00:32:38] Speaker 00:
I mean, it doesn't mean...

[00:32:40] Speaker 00:
I did in terms of just the analysis sometimes in the you know that the less lethal Non-lethal is shot it used and then there is some gap in time.

[00:32:50] Speaker 00:
There's not a whole lot of time here and so I'm not sure how relevant those are in this case interesting I think that

[00:33:02] Speaker 01:
If they had not shot beanbags, you'd have been asking, why didn't they?

[00:33:06] Speaker 01:
I know.

[00:33:08] Speaker 01:
The fact that they did, and now we're talking about how much time.

[00:33:10] Speaker 04:
The problem with that is, the problem with your answer is it goes to show up, we're just checking a box.

[00:33:17] Speaker 04:
And I mean, why didn't they wait two or three seconds?

[00:33:20] Speaker 04:
I mean, is your position that they shot the beanbags and they had enough time to assess that that did nothing?

[00:33:25] Speaker 01:
I think that there's always something in retrospect when you're a Monday morning quarterbacking that could have been differently, that things could have happened.

[00:33:34] Speaker 01:
That's not the way they happen at 10 o'clock at night when it's pitch black and they're out in the middle of the street.

[00:33:39] Speaker 01:
and officers are down, and this whole thing goes down and- Just go to how they're trained.

[00:33:43] Speaker 04:
Like, why are they using the bean bags if they're not actually using it as an opportunity to see- I mean, you would acknowledge they at least had two seconds to wait and see whether the bean bags worked.

[00:33:54] Speaker 01:
I think if he would have immediately dropped or recoiled or gone backwards, he'd have had something different.

[00:34:00] Speaker 04:
So your position is they did have an assessment that the beanbags didn't work and that played into the reasonableness here?

[00:34:07] Speaker 01:
I cannot tell you what the reaction time was.

[00:34:10] Speaker 01:
I'm not an expert on biomechanics and I can't tell you about whether or not there was sufficient time to process this.

[00:34:17] Speaker 01:
I know that even if they were followed contemporaneously, these officers who did fire felt that there was an ongoing threat.

[00:34:31] Speaker 01:
Two minutes.

[00:34:34] Speaker 01:
You've heard enough about qualified immunity?

[00:34:37] Speaker 00:
I guess on the prong two, I did not read the district court to reach that prong two.

[00:34:43] Speaker 00:
Now we could reach it, but I don't know that there's a waiver for failure to address that in the opening brief if the district court didn't go there.

[00:34:52] Speaker 01:
No, I think there's absolutely, if the MSA was granted unqualified immunity, the fact that you didn't address qualified immunity, that was incumbent on them to do it.

[00:35:01] Speaker 00:
Well, but I mean, you know, the reason they get qualified immunity in this case, according to district court, is because there's no underlying violation in the first place.

[00:35:08] Speaker 00:
We don't have to get into the clearly established analysis.

[00:35:11] Speaker 01:
Well, where's the discussion about the reasonable mistake of fact and whether the law was required with a degree of certainty under white versus poly?

[00:35:20] Speaker 04:
You know, you can't just say, but it seems to me that that's almost incumbent upon you to raise as an alternative because the district, I share Judge Bress's view.

[00:35:29] Speaker 04:
I mean, I'll go back and read it, but I didn't view the district court as actually saying you went on both of these.

[00:35:35] Speaker 04:
I heard the district court.

[00:35:37] Speaker 04:
I read the district court to say.

[00:35:39] Speaker 04:
there's no constitutional violation here and a story.

[00:35:42] Speaker 04:
And so then it almost becomes incumbent on you to raise in the alternative that even if I lose on prong one, we still win on prong two.

[00:35:51] Speaker 01:
First of all, the court did say that at extra records 22, but I did raise it in my brief.

[00:35:57] Speaker 04:
Yeah, you did.

[00:35:58] Speaker 04:
I'm not saying you didn't.

[00:36:00] Speaker 04:
I'm just saying

[00:36:02] Speaker 01:
and there's no response.

[00:36:04] Speaker 01:
You know, if we ask what is your response to... Your point is they didn't respond to qualified immunity in the reply brief.

[00:36:10] Speaker 01:
Either.

[00:36:11] Speaker 01:
We got another waiver.

[00:36:12] Speaker 01:
So, you know, like I say, I think that we should treat this case for what it is and we don't need to get into the weeds, these thorny weeds about these thorny constitutional issues because there are just so many

[00:36:27] Speaker 01:
issues of waiver in this case.

[00:36:29] Speaker 04:
What about, let's set aside, I mean, we'll have to have the discussion about whether two sentences preserves the state law claims.

[00:36:37] Speaker 04:
If the state law claims are here, I mean, and maybe we, maybe to your point, we'll look at this, maybe we do need to do some supplemental brief request, but just your answer sitting here, you agree that the standard for state negligence is not the same

[00:36:56] Speaker 04:
as the standard for the Fourth Amendment, correct?

[00:36:59] Speaker 04:
Absolutely.

[00:37:00] Speaker 04:
So when the district court said, because I've rejected the Fourth Amendment claims, I'm also rejecting the state law claims, and I'm talking about the negligence and the wrongful death claims, that was erroneous as a matter of law, correct?

[00:37:20] Speaker 04:
Waiting way too long on it.

[00:37:22] Speaker 01:
Well, no, because it's not a simple answer.

[00:37:28] Speaker 01:
I wouldn't have analyzed it that way.

[00:37:29] Speaker 01:
I don't think any of you would.

[00:37:30] Speaker 01:
But that doesn't mean that we're done.

[00:37:32] Speaker 01:
That doesn't mean that you can't affirm under any circumstances.

[00:37:34] Speaker 01:
I agree.

[00:37:34] Speaker 04:
And it seems to me that the reason to affirm on an alternate basis, and this is your point, which is it hasn't been fully vetted, I assume.

[00:37:43] Speaker 04:
Yes.

[00:37:44] Speaker 04:
The reason to affirm on an alternate basis would be these fail anyway.

[00:37:48] Speaker 04:
We could do our own analysis under state law.

[00:37:50] Speaker 04:
But why wouldn't we remand that to tell the district court

[00:37:54] Speaker 04:
Don't do this.

[00:37:55] Speaker 04:
Stop equating Fourth Amendment violations with state law claims.

[00:37:59] Speaker 04:
You've got to do a separate analysis.

[00:38:01] Speaker 01:
Well, I don't think you'd do that because I don't think it was adequately raised and preserved.

[00:38:06] Speaker 04:
I understand your preservation argument.

[00:38:09] Speaker 04:
I'm saying if we get past that, why wouldn't that be the appropriate result?

[00:38:14] Speaker 01:
On a state law claim of negligence, I have no response to that.

[00:38:23] Speaker 01:
OK.

[00:38:23] Speaker 01:
OK.

[00:38:23] Speaker 01:
I'm out.

[00:38:24] Speaker 01:
I'm way out.

[00:38:25] Speaker 01:
No.

[00:38:25] Speaker 01:
Well, we've taken you over.

[00:38:26] Speaker 04:
You can always answer our questions.

[00:38:28] Speaker 01:
Any other questions before I?

[00:38:30] Speaker 01:
All right.

[00:38:30] Speaker 01:
Thank you.

[00:38:31] Speaker 01:
We see you.

[00:38:32] Speaker 04:
Thank you.

[00:38:37] Speaker 03:
Yep.

[00:38:37] Speaker 03:
All right.

[00:38:38] Speaker 03:
I'll be very brief.

[00:38:39] Speaker 03:
So before we go any further, I have to direct the court to the court's summary judgment ruling.

[00:38:46] Speaker 03:
It is on page 14.

[00:38:50] Speaker 03:
at the top, line two, because the court concludes that the undisputed facts do not establish a constitutional right was violated, the court does not address the second prong of the qualified immunity analysis.

[00:39:06] Speaker 04:
Well, that was my recollection, so.

[00:39:08] Speaker 03:
That's why it's not in my opening brief.

[00:39:11] Speaker 03:
But nevertheless, I did address the cases in the case law in my reply brief.

[00:39:17] Speaker 03:
I talked about the Glenn case, which is a nice case.

[00:39:20] Speaker 03:
I talked about the Hayes case, which is a nice case.

[00:39:23] Speaker 03:
And I talked about the SB versus County of San Diego case, which is a nice case.

[00:39:28] Speaker 03:
I talked about all of those in my reply brief, but I must concede they're not the same as this.

[00:39:34] Speaker 03:
And if you look at the perfunctory analysis of just factual comparison, it's very, very difficult to find the same case.

[00:39:42] Speaker 03:
And I realize that you may affirm on a different ground with that, but we still have these state law claims.

[00:39:51] Speaker 03:
And they're still there.

[00:39:52] Speaker 03:
And all of this discussion, very little discussion was in councils.

[00:39:56] Speaker 03:
And I respect him.

[00:39:57] Speaker 03:
But you weren't really talking about the knife or what he was doing with the knife.

[00:40:01] Speaker 03:
You're talking about constitutional, you talk about waiver, talking about all these other things.

[00:40:06] Speaker 03:
But he's got a problem when you start asking him hard questions about, is this man charging these people with a knife?

[00:40:14] Speaker 03:
How long should we wait after the bean bag?

[00:40:17] Speaker 03:
Because it's always going to be subjective.

[00:40:19] Speaker 03:
What counsel is going to always say, it's very easy argument, he felt, the officers felt, quote, felt.

[00:40:26] Speaker 03:
that they were dealing with.

[00:40:29] Speaker 04:
Council, I give you that.

[00:40:30] Speaker 04:
I think I made that clear.

[00:40:33] Speaker 04:
We're not putting our finger up.

[00:40:36] Speaker 04:
We're not taking a poll of officers, even the officers here.

[00:40:39] Speaker 04:
We're looking at an objectively reasonable standard.

[00:40:42] Speaker 04:
That is difficult to do, but I agree that it's a different analysis than what

[00:40:46] Speaker 03:
But one thing you may not understand fully is that everyone's going to look at the decision that you make.

[00:40:52] Speaker 03:
And people look at that to determine what is okay and what is not okay, for lack of a better legal term.

[00:40:59] Speaker 03:
And there hasn't been any discussion as to all the flurry of shots that are fired as he's falling to the ground.

[00:41:09] Speaker 03:
The one shot for sure that's fired after he is on the ground

[00:41:13] Speaker 03:
And the argument for that is somehow that, well, if they start shooting, they should just continue to shoot.

[00:41:20] Speaker 03:
But they are only allowed to continue to shoot if that threat is there.

[00:41:24] Speaker 04:
I understand.

[00:41:25] Speaker 04:
You understand everything I'm saying?

[00:41:28] Speaker 04:
Do either of my colleagues have further questions?

[00:41:30] Speaker 04:
Does anybody have any questions?

[00:41:31] Speaker 00:
I don't, but thank you.

[00:41:32] Speaker 00:
Thank you.

[00:41:33] Speaker 00:
Thank you.

[00:41:34] Speaker 04:
Thank you both for your arguments in this case.

[00:41:37] Speaker 04:
The case is now submitted, and we're concluded for the day.

[00:41:41] Speaker 03:
Thank you.