[00:00:03] Speaker 00: Good morning, Your Honors. [00:00:04] Speaker 00: May it please the court, Jessica Leiser for Appellants Brown, Nash, Follett, and Richardson. [00:00:08] Speaker 00: I'd like to reserve five minutes for rebuttal. [00:00:10] Speaker 03: Very well. [00:00:11] Speaker 00: And I probably should have been an auctioneer, not an attorney. [00:00:14] Speaker 00: So if I speak too quickly, please tell me to slow down. [00:00:17] Speaker 00: You got it. [00:00:18] Speaker 00: This is an interlocutory appeal of the district court's denial of summary judgment for qualifying immunity for four police officers involved in a five-minute traffic stop that was recorded on video. [00:00:31] Speaker 00: It started when Lieutenant Brown transposed the numbers 4-7 and 7-4 and ended as soon as he realized his mistake. [00:00:37] Speaker 00: And a mistake might be sufficient for a negligence claim. [00:00:39] Speaker 00: Thank you. [00:00:41] Speaker 00: But it's not sufficient for a constitutional claim, which is all that Mr. Sims pled. [00:00:45] Speaker 00: Regarding constitutional claims, denial of qualified immunity is immediately appealable where it turns on an issue of law. [00:00:52] Speaker 00: And those issues of law are subject to de novo review by this court. [00:00:56] Speaker 00: Today, I intend to address three of the legal errors that the District Court made. [00:01:00] Speaker 00: The first is that there is insufficient evidence to raise a genuine issue of material fact as to Mr. Simms' equal protection claims. [00:01:08] Speaker 00: The second is that the District Court improperly shifted the burden of proof to establish qualified immunity onto defendants. [00:01:15] Speaker 00: And the third is that the District Court failed to make a fact-specific, individualized assessment of qualified immunity as required. [00:01:22] Speaker 01: Can I ask you just, at the beginning you said that this incident ended as soon as they found out the mistake about the license plate, but I had understood that the trunk search happened after. [00:01:33] Speaker 00: So if you watch the video, Lieutenant Brown, at the time dispatch comes back to confirm, Lieutenant Brown figures out what he's done wrong. [00:01:42] Speaker 00: Yes, the trunk search does occur after. [00:01:44] Speaker 00: That being said, there's no evidence that Officer Richardson heard dispatch at that time. [00:01:50] Speaker 00: And when you watch the video. [00:01:51] Speaker 00: But Officer Brown could have yelled, stop. [00:01:53] Speaker 00: We just learned he's not the right guy. [00:01:55] Speaker 00: Don't search his trunk. [00:01:57] Speaker 00: Officer Brown could have done that, but I don't know that the Fourth Amendment requires [00:02:03] Speaker 00: that sort of intervention, particularly when you look at cases like Chumman, where for the integral participant theory, there was a supervisor who was in a place where he could have seen something. [00:02:17] Speaker 01: He could see that they were searching the trunk. [00:02:20] Speaker 01: In fact, I thought there was a discussion about we were going to search the trunk, because the Sims said, what are you doing? [00:02:27] Speaker 01: And they said, well, we're just going to search the trunk, something like that. [00:02:29] Speaker 04: No, what happened? [00:02:30] Speaker 04: Didn't Sims interrupt him and say, excuse me? [00:02:33] Speaker 00: Yes, he did. [00:02:34] Speaker 00: He said, what are you doing? [00:02:35] Speaker 00: And he said, we're turning it off. [00:02:36] Speaker 00: So this actually happened before the trunk check occurred. [00:02:40] Speaker 00: The only conversation, the only spoken word with regard to the trunk is Officer Richardson saying, should we check the trunk? [00:02:49] Speaker 00: And nobody responds to him. [00:02:50] Speaker 00: But why doesn't Brown say no? [00:02:52] Speaker 00: Because there's no evidence that he heard him. [00:02:54] Speaker 00: They're standing something like 20 feet apart. [00:02:56] Speaker 00: They're talking to Mr. Sims while that's happening. [00:02:59] Speaker 00: And when you watch the video, there's actually a lot of extraneous noise from other members of the public. [00:03:05] Speaker 00: And interestingly enough, the seagulls are extremely loud. [00:03:08] Speaker 01: At least there's a fact dispute in Sims' favor at this point that the trunk search happened after they knew that the license plate was wrong. [00:03:17] Speaker 00: I don't think there's a fact dispute as to that, because there's no evidence that Officer Richardson knew that. [00:03:22] Speaker 03: But counsel, I was going to say that I appreciate it was noisy, and there's the one person who keeps putting their hands up. [00:03:28] Speaker 03: It's kind of a chaotic scene. [00:03:29] Speaker 03: I mean, it's 7, 11 at 5 in the morning. [00:03:32] Speaker 03: But whether someone heard something or not, that's for a jury to decide. [00:03:37] Speaker 03: And at this stage, don't we have to assume that Mr. Simms' version of the facts are controlling, and that everyone was aware of everything that was going on? [00:03:45] Speaker 03: Don't we have to assume that now? [00:03:47] Speaker 00: Even if you do assume that, I don't think that makes a difference because the analysis is a reasonable officer in Officer Richardson's position, what Officer Richardson would know. [00:03:57] Speaker 01: But if Brown, we have to assume Brown can see Officer Richardson, sees him opening the trunk and Brown knows the license plate is wrong. [00:04:03] Speaker 01: So at least for Brown, I think, I don't see how you get this with taking facts in Sims's favor. [00:04:11] Speaker 03: Or at a minimum, they can say, hold on a second, don't open it yet. [00:04:15] Speaker 03: We're just clarifying this license plate thing. [00:04:16] Speaker 03: I mean, it seems to me that that's what they're going to say. [00:04:20] Speaker 03: And so we're stuck with the facts. [00:04:22] Speaker 03: We're stuck with their facts. [00:04:24] Speaker 03: So if their facts are not great, unfortunately, for the officer, what do we do in this situation? [00:04:32] Speaker 00: Yeah, I mean, I certainly don't think that this is an ideal situation in retrospect. [00:04:36] Speaker 00: But Fourth Amendment analysis for qualified immunity isn't the hindsight that isn't 2020 hindsight. [00:04:42] Speaker 00: And so the analysis really is, what would a reasonable officer do in Officer Richardson's position? [00:04:48] Speaker 01: And at that- Well, I'm asking about Brown. [00:04:49] Speaker 01: What would an officer do in Officer Brown's position when he just learned this guy is not a stolen car and he sees the other officers opening the trunk? [00:04:59] Speaker 00: Well, again, there's no evidence that he sees the officer opening the trunk. [00:05:02] Speaker 01: But that is the thing in their favor. [00:05:03] Speaker 01: So let's take for a minute that he did see in their favor. [00:05:05] Speaker 00: OK, so assuming that he sees it, that might speak to whether or not Lieutenant Brown is entitled to qualified immunity regarding Officer Richardson's conduct. [00:05:13] Speaker 00: But again, because the trial court didn't engage in this individualized analysis. [00:05:17] Speaker 03: That's a different question. [00:05:18] Speaker 00: Yeah. [00:05:18] Speaker 03: OK, and I have a lot of questions for them about that. [00:05:21] Speaker 03: But I think you're asking about Officer Brown. [00:05:24] Speaker 01: Yeah, I mean, is there any argument that Officer Brown, if we assume he saw that they were about to search the trunk and he knows already about the license plate, is there any argument that he should have qualified immunity? [00:05:34] Speaker 01: Because I don't see it. [00:05:35] Speaker 00: Yeah, I think so. [00:05:36] Speaker 00: If you look at Hopkins v. Bonvonsino, in that situation, the supervising officer was in a location where he could observe subordinate officers engage in alleged constitutional violation. [00:05:47] Speaker 00: And the trial court held that that was not sufficient for an integral participant theory of liability. [00:05:53] Speaker 00: Does that answer the court's question? [00:05:54] Speaker 00: I mean, I'll have to look at that case and see if it's different. [00:05:56] Speaker 01: I can't. [00:05:57] Speaker 03: That's all I can say for now. [00:05:58] Speaker 03: Did you want to talk about the individualized issue? [00:06:01] Speaker 03: Because I think that one, I think, is a problem. [00:06:04] Speaker 00: Sure. [00:06:05] Speaker 00: I'm happy to jump to that. [00:06:06] Speaker 00: As you've noted, analysis of qualified immunity is an individualized issue that is fact specific. [00:06:13] Speaker 00: And the court simply didn't do it at all. [00:06:16] Speaker 00: So as an example, looking at Officer Nash, [00:06:21] Speaker 00: There is no clearly established case law that pointing a firearm without something more constitutes excessive force. [00:06:29] Speaker 00: The district court cites Thompson to deny all of the officer's motion for summary judgment on qualified immunity. [00:06:36] Speaker 00: But in Thompson, a firearm was pointed directly at a person after he had been searched for weapons. [00:06:42] Speaker 00: In this case, the only point at which Officer Nash could have pointed his firearm at Mr. Sims was from behind a patrol vehicle before Mr. Sims had been searched for weapons. [00:06:52] Speaker 00: Given that we understand from cases like Hobson and Rivas Villegas, I want to make sure I pronounce it correctly, the video indisputably shows the clear establishment of a right is fact-specific, particularly for the Fourth Amendment. [00:07:07] Speaker 00: And so the distinction between a suspect who has been checked for weapons and one who has not is critical. [00:07:14] Speaker 00: Therefore, even if you accept Mr. Simms' allegation that Officer Nash pointed his firearm at him, he's still entitled to summary judgment. [00:07:23] Speaker 00: Similarly, Lieutenant Brown's conduct reviewed in isolation amounts to ordering Mr. Sims out of his vehicle with his firearm drawn but not pointed. [00:07:32] Speaker 00: And for both of those two incidents, those are constitutional under Pennsylvania v. Mims and City of Foster v. Indio. [00:07:40] Speaker 00: But the trial court's lack of individualized analysis failed to address that nuance, that what you're really looking at is what is Lieutenant Brown's conduct [00:07:48] Speaker 00: in specific regard to Lieutenant Brown and the clearly established right relative to that conduct. [00:07:54] Speaker 01: But do you agree that Lieutenant Brown was essentially the supervisor on the scene, so he is responsible for what the other officers did too? [00:08:01] Speaker 00: He's the most senior officer on scene. [00:08:04] Speaker 00: But I don't think that that automatically means that he's the supervisor. [00:08:07] Speaker 00: And even if it does mean that he's the supervisor, [00:08:10] Speaker 00: That doesn't mean that there is suddenly a responding at superior theory of liability here. [00:08:15] Speaker 00: When you talk about supervisory responsibility, there has to have been some act, you know, a failure to train, a deliberate indifference to a sort of conduct, and there's no evidence in the record that any of that had happened. [00:08:28] Speaker 00: All there really is is that Lieutenant Brown is a lieutenant. [00:08:33] Speaker 01: Well, they're acting together and he has essentially initiated this high risk stop, is it called? [00:08:39] Speaker 01: Yes. [00:08:39] Speaker 01: So he, I mean, I think there was some testimony that a high risk stop is going to involve drawing weapons. [00:08:46] Speaker 01: And if that's true, [00:08:49] Speaker 01: If we also assume that for him, it was unreasonable to think this was a stolen car, so all they're doing is stopping someone for a light problem, then how is it OK for Brown to think that they can draw weapons on someone whose headlights are off? [00:09:08] Speaker 00: Well, again, if you look at City of the Indio or a number of other cases, [00:09:19] Speaker 00: Girard v. New York is actually a Second Circuit case in 2021, so very recently, pointing out that US Supreme Court has not established that a threat plus a display of firearm equals excessive force. [00:09:31] Speaker 00: And so even in that case, you have display of firearm plus a threat, and here, like the officer was threatening the person that he was going to shoot him. [00:09:38] Speaker 00: And that didn't happen here. [00:09:40] Speaker 00: And so even if you're saying that at the point at which Lieutenant Brown [00:09:45] Speaker 00: radioed for assistance to have other officers respond, he had some expectation that their weapons would be drawn. [00:09:52] Speaker 00: There's no clearly established case law that says that drawing firearms is excessive force, even for a simple traffic stop. [00:09:59] Speaker 01: So you think it's OK to pull someone over because their blinker isn't working and pull a gun on them? [00:10:04] Speaker 00: Well, I think OK is a different analysis than the Fourth Amendment. [00:10:08] Speaker 00: That may certainly have been negligence, but that doesn't mean that it's a constitutional violation. [00:10:13] Speaker 03: Let me ask you something. [00:10:14] Speaker 03: I know you want to reserve your time. [00:10:15] Speaker 03: But let's just say we disagree with you on Officer Brown. [00:10:21] Speaker 03: But we think that, as to the other officers, there was no individualized analysis. [00:10:26] Speaker 03: What should we do? [00:10:29] Speaker 00: Well, I think, at a minimum, the court should remand for that individualized analysis. [00:10:33] Speaker 00: But we would ask that the court, because review is de novo, undertake that itself, or at the very least provide some guidance to the district court about what questions need to be asked. [00:10:42] Speaker 00: and what assessment needs to be provided. [00:10:44] Speaker 01: And why would we remand for the individualized analysis instead of doing it ourselves? [00:10:49] Speaker 01: It seems like we're in an equally good position to do it as the district court? [00:10:53] Speaker 00: You certainly are. [00:10:54] Speaker 00: I only suggest that remand alone is an option because that's a step the court has taken before, recently in Mondragon. [00:11:00] Speaker 00: However, [00:11:03] Speaker 00: Take Officer Follett as an example. [00:11:05] Speaker 00: He was basically uninvolved. [00:11:07] Speaker 00: He walked around a car. [00:11:08] Speaker 00: It seems super easy that the court can just summarily address that issue. [00:11:11] Speaker 00: And that would certainly be in the interest of judicial economy. [00:11:16] Speaker 00: Do you want to reserve? [00:11:17] Speaker 00: Yes, I do. [00:11:17] Speaker 00: Thank you. [00:11:46] Speaker 02: Your Honor, and may it please the Court, Nathaniel Flack for the appellee, Anthony Sims. [00:11:51] Speaker 02: If it please the Court, I'll begin by addressing some of the issues that Appellants' Council was just talking about. [00:12:00] Speaker 02: First, on the question of the timing of the vehicle search, there obviously, there is a dispute of fact, at a minimum a dispute of fact, that [00:12:09] Speaker 02: all the officers were aware of what was going on and were aware that dispatch had already cleared the plate. [00:12:14] Speaker 02: All the officers, testimony shows, had radios. [00:12:17] Speaker 02: This information from dispatch was put out over the radio. [00:12:21] Speaker 02: And so the court does have to assume that Brown and everyone was aware that there was any purported suspicion had dissipated and any search of the vehicle was illegal. [00:12:32] Speaker 02: And I would also just add on that point that, [00:12:36] Speaker 02: There's no basis in the law for, even if there was some reasonable suspicion, for a search of a vehicle based on reasonable suspicion. [00:12:45] Speaker 02: That doesn't exist. [00:12:47] Speaker 02: There's no assertion that there was probable cause here. [00:12:49] Speaker 02: And so the search of the car is illegal under any conceivable analysis. [00:12:54] Speaker 02: And that's clearly established. [00:12:55] Speaker 04: So you're saying even if Richardson didn't know that it had been cleared, he had no authority to open that trunk? [00:13:02] Speaker 02: That's right, Your Honor. [00:13:03] Speaker 02: There is no exception to the warrant requirement that authorizes a warrantless search of a trunk, a locked trunk, without probable cause. [00:13:10] Speaker 02: And the Knowles versus Iowa and the court's discussion in Gantt clearly established that, as well as cases of this court that the district court relied on. [00:13:21] Speaker 02: With respect to the individualized analysis, I will plan to focus on the three officers other than Brown, but we'll address any questions about Brown as well. [00:13:34] Speaker 02: And with respect to Nash, Richardson, and Follett, I think this case is easier on a personal participation basis than appellants have made it out to be. [00:13:47] Speaker 02: Defendant Nash, appellants conceded for the purposes of appeal, and the video shows, beyond any real dispute, pointed a gun at Mr. Sims. [00:13:57] Speaker 02: This court's cases, Thompson and Espinoza, [00:13:59] Speaker 02: hold quite clearly that pointing a gun at somebody who is compliant and poses no danger violates the Fourth Amendment. [00:14:06] Speaker 02: That is clearly established. [00:14:08] Speaker 02: And under the factors that this court set forth in Washington versus Lambert and applied in basically identical circumstances in green, there was no basis to believe that Mr. Sims posed any danger. [00:14:21] Speaker 02: He was fully compliant. [00:14:23] Speaker 02: Lieutenant Brown put his compliance out over the radio for all officers to hear. [00:14:29] Speaker 02: There was no information whatsoever. [00:14:30] Speaker 02: He was armed. [00:14:31] Speaker 02: Lieutenant Brown had him lift up his jacket prior to the guns being pointed and turn around 360 degrees in a circle. [00:14:38] Speaker 02: And the other two factors of green, there was no information that any kind of violent crime or any crime had recently been committed. [00:14:45] Speaker 01: Well, can I ask about that? [00:14:47] Speaker 01: Because I think the cases that you're citing, at least Thompson and Robinson and Hopkins, I think all involved like misdemeanors or anything that was going on would have been a very minor crime. [00:14:58] Speaker 01: But I think from Nash's perspective, Nash is allowed to think, I think that this is a stolen car. [00:15:04] Speaker 01: That might be unreasonable for Brown because Brown is the one who saw the license plate, but Brown says to the other officers, I've got a stolen car. [00:15:11] Speaker 01: I think we probably have to assume it's okay for Nash to just proceed on the idea that it's a stolen car, which would be a felony. [00:15:18] Speaker 01: So do any of these cases you're citing say that the fact that the crime is a felony doesn't change the analysis of whether you can have a weapon? [00:15:26] Speaker 02: Here's why I think the court should not assume that it's reasonable for Nash to believe there's a felony. [00:15:32] Speaker 02: The testimony of the city's 30B6 witness and of the officers is consistent that the officers know that you need to verify or look into a license plate return over dispatch. [00:15:45] Speaker 01: That's why Brown... Well, Brown, I totally agree with you. [00:15:47] Speaker 01: Brown, we can't think he reasonably... In your favor, Brown did not reasonably think this was a stolen car. [00:15:54] Speaker 01: But the other officers, I don't think it could be a rule that when [00:15:58] Speaker 01: If if one officer makes a mistake and says this is stolen car I mean that could be wrong for him but I don't think the other officers are supposed to get to a scene and do their own check or ask him to check it then before they do anything that can't be right no and that's not what we're suggesting the the point I'm trying to make is that [00:16:16] Speaker 02: Officer Nash, the court has to assume on defendant's motion for summary judgment, heard over the radio that Lieutenant Brown made an inquiry about a license plate. [00:16:26] Speaker 02: And the officers are trained, according to the city itself, that you make an inquiry, and only based on the results of the inquiry is a high-risk stop appropriate. [00:16:35] Speaker 02: And this is exactly what this court held. [00:16:37] Speaker 02: in green, you have to check before you undertake the high-risk stop. [00:16:42] Speaker 02: And what Lieutenant Brown said over the radio was he used the word possible rolling stolen, and he inquired with dispatch about the status of the plate. [00:16:51] Speaker 02: And the court also has to infer, and it's clear from the record, that dispatch did not confirm the plates. [00:16:59] Speaker 02: At the time that Nash arrives at the scene, the only information that's known to him is [00:17:04] Speaker 02: A lieutenant has inquired about a plate over dispatch. [00:17:08] Speaker 02: The lieutenant has then said the person is fully compliant. [00:17:12] Speaker 02: Defendants contend that with only that information, Nash can arrive at the scene and point a gun at Mr. Simms. [00:17:18] Speaker 02: And a jury does not have to find that that's reasonable, especially where none of the factors from Green or Washington are present. [00:17:26] Speaker 02: And this is not a case where the defendants are pointing to some of the familiar things, like a bulge resembling a weapon or any of the kind of indicia that a person is armed that we're used to talking about. [00:17:40] Speaker 02: What Nash said when asked about the basis for pointing a gun was that Mr. Simms was talking back. [00:17:44] Speaker 02: And I think it's clear on these facts a jury could find that pointing a gun here under Thompson violated the clearly established law and violated the Fourth Amendment. [00:17:55] Speaker 02: With respect to Richardson's personal participation, there's no dispute that Richardson personally opened Mr. Sim's locked trunk. [00:18:06] Speaker 02: He conducted what has to be considered a search of the vehicle. [00:18:10] Speaker 02: And he did so as we were talking about with knowledge that the plate had been cleared. [00:18:17] Speaker 02: That is personal participation. [00:18:19] Speaker 02: He personally engaged in a constitutional violation. [00:18:21] Speaker 02: So there's no personal participation issue as to Richardson. [00:18:26] Speaker 03: And I have a question for you, counsel, on that. [00:18:28] Speaker 03: And this may seem like an odd question, but I can't see of any ground to open up the trunk because there's not probable cause to search the car. [00:18:39] Speaker 03: the defendant is not in custody. [00:18:41] Speaker 03: It's not an inventory search. [00:18:44] Speaker 03: I'm just trying to understand. [00:18:45] Speaker 03: I mean, obviously, if the officers thought, I understand that they think there might be someone hiding in the trunk. [00:18:50] Speaker 03: That's what they're going to be saying. [00:18:52] Speaker 03: But I'm just trying to see from what I saw. [00:18:54] Speaker 03: I didn't see anything to suggest why that was [00:18:58] Speaker 03: Proper. [00:18:59] Speaker 03: I mean put put your prosecutor's hat on for a second. [00:19:02] Speaker 03: Help me out here What would the argument be I'll may ask your co-counsel this or proposing counsel? [00:19:07] Speaker 03: What would the argument be to open the trunk? [00:19:10] Speaker 02: The best I can do to answer that question would be to refer to officer Richardson's Declaration that which I think reveals here. [00:19:18] Speaker 02: I completely agree obviously with the premise of your honor's question, but officer Richardson's declaration and the testimony reveals a [00:19:30] Speaker 02: a misunderstanding of the basic premise of the Fourth Amendment on the part of these officers, which is that he contends he can search a trunk just to check whether or not somebody's in there. [00:19:41] Speaker 02: He doesn't think that there's any reasonable, particularized suspicion necessary to take these actions. [00:19:48] Speaker 02: And so the idea is if we don't know, then we can check. [00:19:51] Speaker 02: If there's uncertainty, it's mere uncertainty or lack of knowledge, according to defendants, [00:19:56] Speaker 02: that supports not only opening the trunk, but pointing a gun at somebody and all the other things that happened here. [00:20:01] Speaker 02: And that just gets the whole analysis backwards. [00:20:04] Speaker 01: So can I ask, I totally agree with you about Richardson and the trunk, but it seems like the district court kind of lumped everyone together and didn't do this parsing. [00:20:12] Speaker 01: So like, you don't think Richardson is involved in the gun pointing, do you? [00:20:19] Speaker 02: That's correct, Your Honor. [00:20:20] Speaker 02: We don't contend Richardson is involved in the gun pointing. [00:20:24] Speaker 02: But I think some of the issues that appellants have raised in that respect can be addressed with jury instructions. [00:20:32] Speaker 02: I mean, the question for this court is whether qualified immunity was properly denied to each officer. [00:20:38] Speaker 02: And I think that read fairly, the district court analyzed the trunk search as to Richardson and analyzed the gun pointed as to Nash, analyzed the totality of the stop, [00:20:47] Speaker 01: But I kind of understand the current situation as, at least at the moment, the gun pointing claim goes forward as to Richardson 2. [00:20:55] Speaker 01: Am I wrong about that? [00:20:57] Speaker 02: Your Honor, I think that would be an issue that should be probably addressed in pretrial briefing or in jury instructions. [00:21:05] Speaker 01: But why shouldn't that be resolved at summary judgment? [00:21:08] Speaker 02: Well, I think it could be resolved at summary judgment, and I think that there is [00:21:15] Speaker 02: a basis to hold all of the officers here liable together for the totality of the stop. [00:21:20] Speaker 02: The testimony is that this was a joint venture. [00:21:22] Speaker 02: The officers understood themselves to be participating together in this high-risk stop. [00:21:29] Speaker 02: They believed themselves to be operating according to some kind of training. [00:21:33] Speaker 02: They were each aware of the tactics that the other officers had used. [00:21:40] Speaker 02: there's evidence, it's disputed as a matter of fact, whether or not Richardson did point his gun. [00:21:45] Speaker 02: The video is the most clear, obviously, as to Nash pointing the gun. [00:21:49] Speaker 02: Mr. Simm's testimony is, and he says this during the incident, he says, why are you pointing guns at me? [00:21:57] Speaker 02: So there is a dispute of fact about who is pointing a gun exactly. [00:22:01] Speaker 02: It's most obviously Nash, but I think that [00:22:06] Speaker 02: a reasonable jury could conclude that multiple guns were pointed at Mr. Sims and that all of the officers are responsible for each of the constitutional violations here. [00:22:14] Speaker 02: It's also possible that the court could carve the violations and assign them to different officers. [00:22:22] Speaker 02: I think both of those outcomes would be reasonable. [00:22:24] Speaker 03: Let me ask you this, counsel. [00:22:25] Speaker 03: I know you guys want this case to move. [00:22:27] Speaker 03: This case is a 2020 case. [00:22:30] Speaker 03: And if we were to send it back as to some of the officers to say, hey, you know, we really can't tell who's on the hook for what, is there a way in your district to, in a sense, expedite that, meaning you draft a proposed findings of facts and conclusions of law and submit it to the district court? [00:22:50] Speaker 03: Obviously, the other side could object to try to speed this up. [00:22:52] Speaker 03: Because I know district court judges are very busy. [00:22:54] Speaker 03: If we were to send it back, I would be concerned that it's going to be 2027. [00:22:58] Speaker 03: before you guys get a chance to try this case. [00:23:00] Speaker 03: Is there anything you can do on your end to try to speed that up a little bit? [00:23:05] Speaker 02: Your Honor, it's not an issue I've looked into procedurally how we might do that. [00:23:09] Speaker 02: I imagine there might be some way to do it. [00:23:11] Speaker 02: But I also think that this court can reach the personal participation issue. [00:23:15] Speaker 02: And the record is fully developed. [00:23:18] Speaker 02: And there's no reason why this court can't [00:23:21] Speaker 02: Address that issue fully and and remand to the district court to proceed. [00:23:24] Speaker 03: No, I appreciate that It's just that this is not the first time this has happened I mean the two of us were on Mondragon and I'm just wondering if it would help everybody [00:23:35] Speaker 03: If we wrote something saying in this situation, you actually do need to issue an order as to each officer and identify who's on the hook for what. [00:23:43] Speaker 03: So we can ultimately make the case go faster if we do that to begin with. [00:23:48] Speaker 03: Instead of now, we're all trying to guess who did what and are they hooked for this. [00:23:54] Speaker 03: I'm just trying to see if we were to do that, how much would that mess up your ability to try to get this case going? [00:24:02] Speaker 02: there's nothing about what your honor has proposed that uh... i think would mess up anything uh... so i i think that uh... i think that an order you know clarifying that the claims as as you're on described as fully within the authority this court and and we uh... b [00:24:20] Speaker 02: happily submit this record for the court's analysis of exactly those issues. [00:24:24] Speaker 02: And under Boyd, just to return to the precedent briefly, under Boyd and under Blankenhorn, I do think it's a relatively straightforward analysis in this case. [00:24:34] Speaker 02: And the case that the appellants cite on individualized analysis is the Cunningham case. [00:24:41] Speaker 02: And I do want to point out [00:24:43] Speaker 02: It's a very different kind of case that that rule of individualized analysis comes from. [00:24:48] Speaker 02: Cunningham, that's where they quote from for each defendant individually has to be addressed by the district court. [00:24:55] Speaker 02: Cunningham alleged what is best described as a vast conspiracy which involved city council members, individuals at a city attorney's office, high ranking law enforcement officers, and it alleged conspiracy to fabricate evidence across multiple incidents [00:25:11] Speaker 02: by people who weren't present at the scene of these events. [00:25:14] Speaker 02: And in that circumstance, obviously, this court required the district court to really break it down and say, well, what did each defendant do? [00:25:21] Speaker 02: This case is very simple compared to that. [00:25:23] Speaker 02: And I think the district court's analysis is more than sufficient. [00:25:26] Speaker 02: It's a very detailed order. [00:25:28] Speaker 02: It talks in a great degree of detail about each officer's conduct. [00:25:32] Speaker 02: And it's not like Cunningham, where there's some tentative involvement. [00:25:38] Speaker 02: These are defendants who were personally there, who personally violated our client's constitutional rights. [00:25:43] Speaker 02: And the law is clearly established. [00:25:45] Speaker 02: And so the district court properly denied qualified immunity and should be affirmed. [00:25:50] Speaker 01: But if we think that, for example, like we've already discussed, Richardson, I mean, it seems like you kind of made an argument, well, maybe he's in a group of people who are pointing guns, but it doesn't seem like Richardson pointed a gun. [00:26:00] Speaker 01: So if we think Richardson should be off the hook for any excessive force gun pointing claim, are you saying we should clarify that the district court really needed to do that and send it back for the district court to say that before anything more happens? [00:26:13] Speaker 01: Or are you saying we should just say that at this point? [00:26:15] Speaker 01: Because it's pretty obvious at this point that that could just be said by us because the record's the same. [00:26:19] Speaker 01: What are you saying we should do? [00:26:22] Speaker 02: I would urge the court to reach those issues if they're before it. [00:26:25] Speaker 02: I don't think that there's any further development of the record or anything like that that needs to be done here. [00:26:29] Speaker 02: I think this court can and should analyze the personal participation issue to the extent that there is one. [00:26:36] Speaker 02: I also think the court could remand to the district court as well. [00:26:38] Speaker 02: I think both of those options are on the table and neither one is objectionable. [00:26:43] Speaker 01: And if we were to remand [00:26:45] Speaker 01: the district court would do basically the same thing we would do, right? [00:26:47] Speaker 01: There's no further submission or further testimony or anything that would happen at that point. [00:26:53] Speaker 02: I believe so, Your Honor. [00:26:55] Speaker 02: I realize I'm almost out of time. [00:26:58] Speaker 03: Well, I think technically you are. [00:26:59] Speaker 03: But go ahead. [00:27:00] Speaker 03: I'll give you an extra minute. [00:27:01] Speaker 02: Well, thank you, Your Honor. [00:27:02] Speaker 02: I just briefly want to touch on the equal protection issue that counsel raised briefly. [00:27:10] Speaker 02: And we would just rely on Johnson versus Jones, the state of Anderson, [00:27:14] Speaker 02: memorandum disposition recently issued by this court in Bala versus Hendrickson for the proposition that there's no appeal from a denial of summary judgment without an actual legal issue as to qualified immunity, which doesn't exist here. [00:27:27] Speaker 02: The law is clearly established. [00:27:30] Speaker 02: With respect to pointing a firearm, excuse me, I'm going to skip that actually. [00:27:37] Speaker 02: With supervisory liability, we've cited cases in our brief on culpable action or inaction. [00:27:44] Speaker 02: So I would just direct the court to those cases that we've cited on supervisory liability. [00:27:49] Speaker 02: And with respect to the Hobson case that was briefly referred to by counsel, that case is distinguishable. [00:27:55] Speaker 02: It involved an impending crime, a crime that was about to occur. [00:27:59] Speaker 02: That's a totally different analysis, so that case should be distinguished. [00:28:03] Speaker 02: And for all the reasons that we've discussed, we ask that the district court [00:28:06] Speaker 02: be affirmed, and thank you, Your Honor. [00:28:09] Speaker 03: All right. [00:28:09] Speaker 03: Thank you very much, Counsel. [00:28:19] Speaker 00: Thank you. [00:28:19] Speaker 00: So I'd like to start by addressing the equal protection issue. [00:28:22] Speaker 00: Whether evidence is sufficient to create a genuine issue of material fact is a legal question subject to interlocutory review, and that is explicit on Cunningham v. Gates. [00:28:34] Speaker 00: Mr. Simms' allegation that there's no... I'm not sure that's right. [00:28:37] Speaker 01: So we have the Anderson case that says the question whether there's sufficient facts for summary judgment is not an interlocutory basis on qualified immunity appeal. [00:28:45] Speaker 01: You have to only be arguing about whether the law is clearly established. [00:28:48] Speaker 00: No. [00:28:48] Speaker 00: I think the Anderson case tells you that whether or not evidence is sufficient to prove something at trial is not subject to interlocutory review, but that's not the same question as sufficiency to create a genuine issue of material fact. [00:29:00] Speaker 00: So let me give you an example. [00:29:03] Speaker 00: Mr. Sims puts forward a lot of circumstantial evidence about police reports involving warrant arrests and drug bust by operations. [00:29:11] Speaker 00: Even if we can assume that he can prove all of those at trial, they're insufficient as a matter of law to create a genuine issue of material fact, because under Lacey v. Maricopa County, in order to demonstrate disparate treatment, an equal protection issue, there has to be disparate treatment among similarly situated individuals. [00:29:28] Speaker 00: And the fact pattern in this case has no similarity to warrant arrest or drug bust by operations. [00:29:33] Speaker 00: And so it's a very fine distinction, but it is there, this difference between sufficiency to prove at trial and sufficiency to... So what case says that if the district court thinks there's a genuine issue of fact that gets... [00:29:45] Speaker 01: that can't be resolved at summary judgment, that that question alone, not talking about what's clearly established or anything else, just whether there is enough evidence for a genuine issue that that can be appealed on a qualified immunity interlocutory appeal. [00:29:57] Speaker 01: What case says that? [00:30:00] Speaker 00: Well, again, Cunningham v. Gates. [00:30:03] Speaker 00: And then actually, in addition, if you look at Jeffers v. Gomez, there's actually the question there is also whether or not there's sufficient evidence to create a genuine issue of material fact. [00:30:20] Speaker 01: I think Cunningham Begates is a long time ago before the cases by the Supreme Court that are talked about in Anderson. [00:30:26] Speaker 01: So I'm not sure that's going to work for you. [00:30:29] Speaker 00: Well, so then again, I would point to Jeffers v. Gomez. [00:30:32] Speaker 00: And actually, the analysis was the same there regarding circumstantial evidence. [00:30:36] Speaker 00: And what this court went on to hold is that an allegation about discriminatory animus [00:30:41] Speaker 00: Not sufficient evidence is not sufficient as a matter of law to create a genuine issue of material fact. [00:30:47] Speaker 00: And then the court actually went on to hold that qualified immunity was reviewable and then applied qualified immunity in that case. [00:30:58] Speaker 00: The next thing I want to address, Judge Friedland, is your question about the trunk check. [00:31:02] Speaker 00: If you're in Officer Richardson's position and all you have at that point is information about a potentially stolen vehicle and your knowledge about the relationship between stolen vehicles and weapons, your concern is safety. [00:31:15] Speaker 00: And in United States v. Hensley, the Supreme Court has said that officers can take reasonable steps to effectuate scene safety first. [00:31:24] Speaker 01: But for something that someone could reach, I mean, a locked trunk, no one can reach it. [00:31:29] Speaker 01: No one can grab a weapon from a locked trunk. [00:31:31] Speaker 00: In KDV Dabrowski, the United States Supreme Court said that a firearm in a locked and unattended trunk is a sufficient concern to public safety to justify a search. [00:31:42] Speaker 00: And in that circumstance, the individual in question was in custody when the vehicle was impounded and searched. [00:31:49] Speaker 03: Right, because in that instance, the concern is someone might get access to the trunk and pull a gun out. [00:31:53] Speaker 03: Correct. [00:31:54] Speaker 03: There are six police officers there. [00:31:56] Speaker 03: No one's going to run up to the trunk and pull out a key and open it and pull a gun out. [00:32:00] Speaker 00: There are six officers, but as the court also noted, there are a bunch of people milling around, including people wandering through the scene. [00:32:06] Speaker 03: But did they have key to the trunk? [00:32:09] Speaker 00: At that point, it's not clear whether the trunk is locked or not. [00:32:13] Speaker 00: And the car was still running. [00:32:14] Speaker 00: So even if somebody wanted to fire them, they could have just jumped in and run away with the car itself. [00:32:18] Speaker 01: Well, they took the keys out of the car. [00:32:20] Speaker 01: No one's challenging that, as far as I can tell. [00:32:22] Speaker 01: Once they've taken the keys out of the car, I don't see how the locked trunk is an issue. [00:32:27] Speaker 00: Perhaps, but I think there's only a split second between when those things occur. [00:32:31] Speaker 00: And I recognize I'm out of time. [00:32:35] Speaker 00: So does the court have any more questions? [00:32:40] Speaker 03: Thank you. [00:32:40] Speaker 03: Thank you very much, counsel. [00:32:41] Speaker 03: Thank you both for your briefing and argument. [00:32:44] Speaker 03: This matter is submitted and we are adjourned.