[00:00:02] Speaker 00: Morning, Your Honors. [00:00:03] Speaker 00: My name is Amanda Sheridan, and I'm an attorney with the City of Peoria, and I'm here today representing Sergeant Matthew Miller, who's here today in the courtroom. [00:00:13] Speaker 00: May it please the court? [00:00:13] Speaker 00: I've tried to reserve two minutes for a bubble. [00:00:16] Speaker 03: All right. [00:00:16] Speaker 03: Thank you, Counsel. [00:00:16] Speaker 00: Thank you. [00:00:18] Speaker 00: Your Honor, Samuel Dank has admitted multiple times under oath that after being pulled over by Sergeant Miller with both a meth pipe and a gun in his lap, [00:00:28] Speaker 00: that instead of reaching towards the steering wheel as he was ordered to do, he slid his right hand backwards towards his crotch area. [00:00:37] Speaker 00: That's his word, not mine, your honors. [00:00:40] Speaker 00: Exactly where his gun was located. [00:00:43] Speaker 00: This is the only fact that is material today to this court in deciding whether a reasonable officer in Sergeant Miller's position would have feared for his life in that moment and was therefore justified in pulling the trigger. [00:00:55] Speaker 01: What about, I mean, they have this one picture [00:00:58] Speaker 01: in the excerpts of record where you do see the hand and they've obviously highlighted it going up. [00:01:08] Speaker 01: How do you address that? [00:01:10] Speaker 00: Your Honor, a few points to that. [00:01:12] Speaker 00: First, this court and the Supreme Court has always said that body-worn camera footage or manipulated or altered footage is not to be used to determine what the officers saw at the time of the events. [00:01:28] Speaker 00: Anytime we take body-worn camera footage, slow it down, play it frame by frame. [00:01:33] Speaker 00: We can minutely try and parse out exactly where a hand is going. [00:01:36] Speaker 01: If it doesn't tell us what happened, there may be an issue of what the officers saw. [00:01:41] Speaker 01: But are you saying that when the court reviews the video, can we slow it down and see whether or not we can see more carefully what actually happened? [00:01:50] Speaker 00: You can, Your Honor. [00:01:51] Speaker 00: However... Can we change the brightness of it, too? [00:01:54] Speaker 00: Yes, your honor. [00:01:55] Speaker 00: You may do all those things. [00:01:57] Speaker 01: However, I can tell you when I slowed the video down and I increased the brightness, you can see after the hand goes back, you then see it go up. [00:02:08] Speaker 01: And it does go back and then it goes up. [00:02:11] Speaker 00: Right. [00:02:11] Speaker 00: And my point to that would be that by then Sergeant Miller has already seen the hand sliding backwards towards the gun. [00:02:21] Speaker 00: And he's already made that conscious decision to shoot. [00:02:24] Speaker 00: And once you start making, there's experts who can testify to, once you start making that impulse and you've already started to pull the trigger, there's no turning back from that. [00:02:32] Speaker 00: So it very well may be that right before he was, right before the gun struck, the bullet struck Mr. Dank, that maybe he was trying to raise his hand up at that point. [00:02:44] Speaker 00: But what Sergeant Miller saw in his 15 years of patrol experience was a person that he told, [00:02:50] Speaker 00: put your hands on the steering wheel, and instead of doing it, his hand went backwards. [00:02:55] Speaker 03: Your counsel, does that raise an issue of fact that needs to be resolved by the jury? [00:03:00] Speaker 00: No, Your Honor, because this case is very different from the case that this court heard earlier this week, Rose v. Farney. [00:03:07] Speaker 00: This is not a case where the officer shot the suspect, the suspect died, and then it becomes only the officer's word against the PWC footage. [00:03:15] Speaker 00: Here we have the BWC footage, which shows the traffic stop and the shooting, but Dank's gun can never be seen, even though we all admit it was there. [00:03:24] Speaker 00: And we can't see exactly where his right hand is at every given moment, and that's partly because Sergeant Miller is very tall. [00:03:32] Speaker 00: His eyes were up here, but the camera was here on his chest level. [00:03:37] Speaker 00: In fact, the district court made a finding in its order on page 5 where that court stated it is unclear from the video where plaintiff's hands are. [00:03:47] Speaker 00: So we can't really rely on the BWC footage here, but we don't need it here because what we have here are two consistent statements by both Sergeant Miller and Samuel Dank that he did move his hand backwards towards the gun. [00:04:02] Speaker 00: Now, he disputes whether he was actually reaching for the gun, but this case is very similar to the case that this court decided. [00:04:11] Speaker 00: It's an unpublished case, but it's called Ammons v. Tyndall. [00:04:15] Speaker 00: And I believe Judge Collins took part in that decision. [00:04:17] Speaker 00: In that case, out of all the cases that I've looked at in preparation for this case, was the most close to the facts in this case. [00:04:24] Speaker 03: Well, counsel, I don't, I'm not persuaded by unpublished opinions. [00:04:29] Speaker 03: If that's your best authority, it's not persuasive to me. [00:04:33] Speaker 00: It's not my best authority, Your Honor. [00:04:35] Speaker 00: I would also direct the court's attention to Cruz v. City of Anaheim. [00:04:40] Speaker 00: This court has said, when a suspect is armed, even a furtive movement can create an immediate threat sufficient to justify the use of deadly force. [00:04:50] Speaker 00: The court said this in George v. Morris, and then that it would be unquestionably reasonable [00:04:56] Speaker 00: for police to shoot a suspect if he reaches for a gun in his waistband or even if he reaches there for some other reason. [00:05:03] Speaker 00: In other words, the fact that Dank is going to try to raise today that he didn't intend to reach for the gun is irrelevant. [00:05:14] Speaker 00: What's relevant here is that his right hand reached backwards in the area where the gun was located. [00:05:20] Speaker 00: It was reasonable in that tense, rapidly evolving situation for Sergeant Miller to see his hand moving backwards towards the gun and fear for his life in that moment. [00:05:33] Speaker 00: Now, Dank Stason is answering brief on page 13 that reaching for the weapon, as Miller asserts, and moving a hand towards a person's crotch are not the same thing, even if a weapon is located in the person's lap. [00:05:45] Speaker 00: I agree. [00:05:47] Speaker 00: But the difference there is the intent. [00:05:49] Speaker 00: And as the court knows, there's a long line of cases that says intent doesn't matter in these cases. [00:05:55] Speaker 00: It certainly mattered at Mr. Dink's criminal trial. [00:05:57] Speaker 00: He got up at his criminal trial and testified that yes, he had moved his hand backwards for the gun, but that he had no intent to reach for the gun. [00:06:04] Speaker 00: Okay. [00:06:06] Speaker 00: And he was acquitted of the aggravated assault charge. [00:06:09] Speaker 00: But that doesn't matter in this analysis. [00:06:12] Speaker 00: In this analysis, [00:06:13] Speaker 00: Dank's intent was irrelevant. [00:06:15] Speaker 00: All we knew and all Sergeant Miller knew at the time was that there was a gun in the suspect's lap and that he disobeyed his command to put his hands on the steering wheel and instead slid it backwards. [00:06:27] Speaker 00: Now, the district court seemed to focus a lot on the amount of time that passed between the first warning and the time of the shooting. [00:06:38] Speaker 00: However, neither this court nor the Supreme Court has ever said there's a magic number of seconds that a police officer must wait in the face of an imminent threat before he or she defends themselves. [00:06:52] Speaker 00: It has to be a flexible standard because the court recognizes that every situation will be just a little bit different. [00:06:58] Speaker 00: So that's why the Graham standards exist. [00:07:01] Speaker 00: It's a framework to determine whether under the totality of the circumstances, the officer had a reasonable belief [00:07:08] Speaker 00: that his life was in jeopardy. [00:07:10] Speaker 00: And the totality of the circumstances that we have here are that a traffic stop, a lawful traffic stop was initiated. [00:07:17] Speaker 00: The officer pulls him over. [00:07:18] Speaker 00: The officer pauses in the BWC footage because he sees Mr. Dink moving around in the vehicle as if he was placing things from one seat to another seat. [00:07:30] Speaker 00: Then he walks up to the vehicle. [00:07:32] Speaker 00: He looks in. [00:07:33] Speaker 00: He sees a meth pipe. [00:07:34] Speaker 00: He sees a gun. [00:07:35] Speaker 00: He looks at Mr. Dink and he says, [00:07:37] Speaker 00: do not move, put your hands on the steering wheel, or do not reach for the gun, put your hands on the steering wheel. [00:07:43] Speaker 00: Approximately six seconds pass between the time that he gives that initial order till the time of the shot. [00:07:51] Speaker 00: Now six seconds may seem like it's a very short amount of time. [00:07:55] Speaker 00: But I can put my hands up and down off the steering wheel 12 times in six seconds. [00:08:01] Speaker 01: What does the video show about the length of time between the hand sliding back and the shot? [00:08:09] Speaker 00: The hand slides back and then the shot is very quickly after that. [00:08:14] Speaker 00: I don't know the exact timing, maybe a second after that, because as the hand is sliding back, that's when Sergeant Miller thinks in his mind, he's reaching for the gun, I need to shoot it, so he has to process that information for a split second, and then he starts to pull the trigger. [00:08:31] Speaker 00: Now, in that time, he also tried to issue a second warning, but he didn't get the warning entirely out before the shot struck Mr. Dink. [00:08:42] Speaker 00: If the court does not convince that Sergeant Miller's actions were reasonable, it can still find that there was no clearly established law here. [00:08:51] Speaker 00: Dank bears the burden to show what the clearly established law is that Sergeant Miller violated. [00:08:56] Speaker 00: He cites to no cases in his briefing that even come close to the facts of our case. [00:09:02] Speaker 00: As the Supreme Court has stated, a right is clearly established only if, at the time of the challenge conduct, [00:09:08] Speaker 00: It was sufficiently clear that every reasonable official would have understood that what he is doing violates that right. [00:09:16] Speaker 00: And as the court is well aware, the right cannot be a broad general proposition like the right to be free from excessive force. [00:09:22] Speaker 00: It needs to be specific or particularized. [00:09:25] Speaker 00: Now the district court here erred in characterizing the right as shooting a non-resisting, non-fleeing suspect before the suspect has a chance to comply with an officer's warning. [00:09:37] Speaker 00: She then cites to the case AKH v. City of Tustin. [00:09:42] Speaker 00: And if you look at her order, she states, the facts of this case are indistinguishable from AKH. [00:09:49] Speaker 00: Well, with all due respect to the district court, that's just simply not true. [00:09:52] Speaker 00: The main difference between that case and this case is that Mr. Dank was armed. [00:09:57] Speaker 00: The person in AKH who got shot was not armed. [00:10:05] Speaker 00: And there was nothing within reach. [00:10:08] Speaker 00: So, yes, shooting, we agree that shooting a non-resisting, non-fleeing, unarmed suspect who was not reaching towards a weapon would be a violation of clearly established law. [00:10:20] Speaker 00: But here, that's not the case we have. [00:10:23] Speaker 00: He was armed. [00:10:24] Speaker 00: The gun was within inches of his hand. [00:10:27] Speaker 00: He made a furtive movement in its direction. [00:10:29] Speaker 00: And Sergeant Miller feared for his life in that moment and shot him. [00:10:35] Speaker 00: The appellee made an argument that maybe this court does not have jurisdiction. [00:10:42] Speaker 00: I'm not going to spend a lot of time on that, but we are not asking this court to make any factual determinations. [00:10:47] Speaker 00: This is completely unlike the cases that were cited in the answering brief. [00:10:52] Speaker 00: We're not asking the court to make a factual finding that officers weren't at the scene. [00:10:57] Speaker 00: We're not asking the court to make any factual findings. [00:11:00] Speaker 00: We're only asking this court to apply the Ninth Circuit and U.S. [00:11:05] Speaker 00: Supreme Court case law to the facts that exist. [00:11:08] Speaker 00: And in this case, one of the facts that exist are the plaintiff's admissions, Mr. Dank's admissions. [00:11:15] Speaker 00: And this court has said that under Rule 56, [00:11:20] Speaker 00: court should not blind itself to a plaintiff's admissions. [00:11:26] Speaker 00: And here, essentially, that's what the district court did. [00:11:29] Speaker 00: It glossed over the fact that Mr. Dank had already admitted twice at his criminal trial testimony, where he had the highest interest in telling the truth, and in his civil deposition testimony, [00:11:43] Speaker 00: multiple times where he agreed that what he remembered doing was sliding his hand backwards towards his crotch area. [00:11:51] Speaker 02: Counsel, let me change the facts up just a little and see if it would change your reasoning. [00:11:56] Speaker 02: What if the facts had been that Mr. Dank said, Officer, I have a gun, and started to move his hand in the manner that it's alleged he did here? [00:12:08] Speaker 02: Would that change the scenario? [00:12:10] Speaker 00: I think it would depend on a few things, Your Honor. [00:12:12] Speaker 00: One, whether Sergeant Miller had already given his warning of put your hands on the steering wheel and don't reach for it before he started his movement. [00:12:23] Speaker 00: And also, I think, I mean, it might be a closer case because by verbalizing that he has a gun, at least he's signaling maybe he's trying to put the officer on notice. [00:12:34] Speaker 00: But again, what reasonable person says, I have a gun in front of an officer, and then reaches towards it? [00:12:42] Speaker 00: It's just any police officer, any reasonable police officer in Sergeant Miller's position would have pulled the trigger in this case. [00:12:52] Speaker 00: Because it's not just the fact that he had a gun. [00:12:55] Speaker 00: It's the fact that he disobeyed his command to put his hands on the steering wheel, and then instead started reaching towards it. [00:13:02] Speaker 00: It's not just having a gun. [00:13:05] Speaker 00: I see my two minutes are down. [00:13:08] Speaker 00: So unless there are any questions, I'll reserve the rest of my time for rebuttal. [00:13:10] Speaker 00: All right. [00:13:11] Speaker 00: Thank you, counsel. [00:13:11] Speaker 00: Thank you. [00:13:23] Speaker 05: May it please the court, my name is Jacquees Blackwell. [00:13:26] Speaker 05: I represent myself and Ms. [00:13:28] Speaker 05: Bernard, I represent Mr. Samuel Dink in this matter. [00:13:34] Speaker 05: And Your Honor, if you don't have any questions, I want to just hit one thing. [00:13:42] Speaker 05: We don't believe that this court has jurisdiction, because based on me listening to Ms. [00:13:48] Speaker 05: Sheridan, the defense or the appellant is still arguing over disputed facts. [00:13:55] Speaker 05: It is disputed. [00:13:55] Speaker 05: Yes, Your Honor. [00:13:56] Speaker 03: So she said the fact was undisputed that he reached back toward the area where the gun was. [00:14:03] Speaker 03: Do you? [00:14:04] Speaker 03: Do you take issue with that? [00:14:06] Speaker 05: Absolutely, Judge. [00:14:07] Speaker 05: My client, Mr. Dink, Samuel Dink, he stated that his hand at trial moved back towards his crotch, but what he meant was that he moved his hand back towards the seat belt. [00:14:19] Speaker 05: When everybody watches the video, and that's one of the reasons he wasn't convicted other than the fact that when Sergeant Miller testified, he was up there looking at the screen [00:14:29] Speaker 05: watching Mr. Dink's hands raise up as he was shot. [00:14:32] Speaker 05: Everybody saw it. [00:14:34] Speaker 05: And that's why we won that case. [00:14:35] Speaker 03: And in this particular case... But he did say that he reached back toward his crotch. [00:14:40] Speaker 05: That's the difficult... He said that. [00:14:42] Speaker 05: And I believe that Ms. [00:14:45] Speaker 05: Sheridan, during the deposition, Mr. Dink also stated that he made a mistake and he retracted that statement. [00:14:53] Speaker 05: If you look at the appellee's request to supplement the record. [00:14:59] Speaker 05: And I'll just go there briefly. [00:15:02] Speaker 05: And the reason I put it in there is this, Your Honors. [00:15:05] Speaker 05: Ms. [00:15:05] Speaker 05: Sheridan was at the deposition, and one of the first questions she asked Sam was, didn't you say at trial, you move your hand towards his crotch? [00:15:14] Speaker 05: He said yes. [00:15:15] Speaker 05: And then she asked, well, did you move your hand towards your crotch? [00:15:19] Speaker 05: He said yes. [00:15:20] Speaker 05: And I'm like, thinking, sitting there waiting for my time to ask questions, just show him the video again. [00:15:25] Speaker 05: We showed the video, and he said, oh, my hand doesn't go towards my crotch. [00:15:29] Speaker 05: I actually move my hand to the right. [00:15:31] Speaker 05: And when you watch the video, Your Honor, you see his hand move towards the right. [00:15:35] Speaker 05: And the reason that Sergeant Miller didn't shoot him, yes, Your Honor. [00:15:39] Speaker 01: The hand may move to the right, but it does move back. [00:15:43] Speaker 05: Absolutely, Judge. [00:15:44] Speaker 05: Absolutely. [00:15:45] Speaker 05: And when his hand moves back, Sergeant Miller doesn't shoot. [00:15:47] Speaker 01: The back is getting closer to the gun. [00:15:50] Speaker 05: Judge, I cannot disagree. [00:15:52] Speaker 05: that if you move your hand, when you're commanded to move your hand and you're sitting in a car, your hand may move back. [00:15:59] Speaker 01: Lifting your hands up to the steering wheel is moving it away from the gun. [00:16:04] Speaker 01: Moving either to the right, but partly back is moving in the direction of the gun. [00:16:10] Speaker 01: It's reducing the space between the hand and the gun. [00:16:14] Speaker 01: Objectively, that's what it does. [00:16:16] Speaker 05: I would disagree because I've tried it myself. [00:16:18] Speaker 05: If you're sitting at your chairs, all three of you could sit at your chair right now and put your right hand on your knee and you're sitting kind of slouched in a chair. [00:16:25] Speaker 05: And if you try to move your hand up, you're going to move it back just somewhat. [00:16:29] Speaker 05: And so all I'm saying is it is possible for you to be commanded to move your, put your hand on the steering wheel. [00:16:36] Speaker 05: And if you're sitting down with your hands on your knees, your hand may move back over so slightly. [00:16:40] Speaker 01: The video shows a portion of it going back without it visibly moving up. [00:16:44] Speaker 05: That is true, Your Honor. [00:16:46] Speaker 05: I do agree with that. [00:16:48] Speaker 01: But that's a problem because if the hand is moving back without going up, that objectively is reducing the space to the gun and objectively looks like disobedience and looks like a better life scenario. [00:17:04] Speaker 05: I respectfully disagree with that statement, Judge, because it would be one thing if Sergeant Miller said, [00:17:14] Speaker 05: Don't move your hands. [00:17:15] Speaker 05: And he moves his hands. [00:17:17] Speaker 05: And then he gets shot. [00:17:18] Speaker 05: And we're having this argument. [00:17:19] Speaker 05: That didn't happen. [00:17:20] Speaker 05: Sergeant Miller's first command was, do not touch that weapon. [00:17:24] Speaker 05: Put your hands on the steering wheel. [00:17:26] Speaker 05: And when he says, do not touch that weapon, Mr. Dink says, yes. [00:17:30] Speaker 05: Put your hands on the steering wheel. [00:17:32] Speaker 05: Mr. Dink says, OK. [00:17:33] Speaker 05: He moves his hand back to the right. [00:17:35] Speaker 05: He moves his hand back up on the second command. [00:17:38] Speaker 05: Put your hands on the, hands go up, pow. [00:17:42] Speaker 05: Sergeant Miller shoots him. [00:17:44] Speaker 05: If Sergeant Miller was afraid that Mr. Dink was going for his weapon when he saw his hand move at all, Sergeant Miller already had his hand, his weapon was out, finger on the trigger. [00:17:57] Speaker 04: He didn't shoot Sam Den. [00:17:59] Speaker 04: He shot Sam on the second command to put your hands on the steering wheel and ask Sam's hands raised up. [00:18:05] Speaker 04: He shot him before he finished his sentence. [00:18:07] Speaker 04: And I think what's telling of the situation is, [00:18:12] Speaker 05: Officer Miller's statements after he shot him, he curses. [00:18:15] Speaker 05: He's not cursing because he was mad at Dink. [00:18:19] Speaker 05: He's cursing because from our perspective, he didn't want to shoot him when he shot him because he saw his hands going up. [00:18:24] Speaker 04: When he pulls him out of the car when you watch the video, there's a conversation between Sam and Sergeant Miller. [00:18:30] Speaker 04: And during that conversation, Sam says, why'd you shoot me? [00:18:36] Speaker 04: Sergeant Miller says, well, you move your hand towards the weapon. [00:18:38] Speaker 04: And Sam says, no, I didn't. [00:18:41] Speaker 04: That was part of the call. [00:18:42] Speaker 02: I'm sorry, Judge. [00:18:44] Speaker 02: It seems to me that we're doing exactly what the Supreme Court doesn't want done when it says you're not supposed to look at this in hindsight, overlook the what's going on in the scene. [00:18:54] Speaker 02: We're taking six seconds and taking minutes to analyze it. [00:18:59] Speaker 02: Is that really appropriate? [00:19:01] Speaker 05: I think it's inappropriate for the for the appellant to tell this court in their opening brief that Sam [00:19:10] Speaker 05: never stated that he did not move his hand towards the weapon. [00:19:15] Speaker 05: That's inappropriate. [00:19:16] Speaker 05: I think what the Supreme Court wants us to look at is, and this Ninth Circuit looks at the fact that an officer may not use daily force when a suspect appears to have been complying with the officer's order to show his hands, was not charging the officer, and was following all orders at the time the suspect was shot. [00:19:36] Speaker 03: But Counsel, the difficulty is that [00:19:41] Speaker 03: an officer looking at him could say that he wasn't following the orders because he moved his hand back. [00:19:47] Speaker 05: I understand that, Your Honor. [00:19:48] Speaker 05: But I would say I wouldn't have the best argument if Sergeant Miller actually shot Sam when he moved his hand at all. [00:19:58] Speaker 05: When his hand went back, either towards the seat belt or, in Officer Miller's belief, it moved towards his crotch. [00:20:05] Speaker 05: If Sam would have been shot right then, it takes away the argument [00:20:09] Speaker 05: that the sergeant's actions were objectively unreasonable. [00:20:15] Speaker 05: I believe the sergeant's actions were objectively unreasonable because he didn't shoot Sam when his hand moved. [00:20:23] Speaker 05: He shot Sam when Sam's hands were going up. [00:20:26] Speaker 03: A period of time had elapsed between the time the hand moved back toward the gun and he was shot. [00:20:34] Speaker 03: It was mere seconds. [00:20:37] Speaker 05: Less than a mere second. [00:20:40] Speaker 05: Between the commands, it was less than three seconds. [00:20:42] Speaker 05: The first command and the second command. [00:20:44] Speaker 03: Between the time the hand went back and the time he was shot. [00:20:47] Speaker 05: It was over a second. [00:20:48] Speaker 05: It was, yeah. [00:20:49] Speaker 05: So it was at least a second. [00:20:51] Speaker 05: So the issue is, and there's a case in the Ninth Circuit that states that the officer has to at least give the individual a time to comply with the order. [00:21:00] Speaker 05: If Sergeant Miller [00:21:02] Speaker 05: gives a second command to put his hands on the steering wheel. [00:21:06] Speaker 05: Sergeant Miller is looking at the situation. [00:21:08] Speaker 05: The body on camera is only showing us what we can see. [00:21:11] Speaker 05: Sergeant Miller doesn't shoot Sam at that moment. [00:21:14] Speaker 05: Sergeant Miller shoots Sam after his hands are raised. [00:21:17] Speaker 05: And so the appellant wants you to believe that, wants us to go into Sergeant Miller's mind, we cannot go into his mind. [00:21:24] Speaker 05: That's why this situation should go to the jury, because we believe the district court got it right. [00:21:29] Speaker 05: The district court used the Garner case [00:21:32] Speaker 05: as well as AKH. [00:21:34] Speaker 05: And in those cases, this is a situation where it speaks for itself. [00:21:38] Speaker 05: It's obvious that if you watch the video, Sam's hands were going up when he was shot. [00:21:44] Speaker 05: When his hands go up when he's shot, he doesn't have a weapon in his hand. [00:21:48] Speaker 05: He's unarmed. [00:21:49] Speaker 05: His left hand is sitting on the window seal. [00:21:51] Speaker 05: His right hand is on his knee. [00:21:53] Speaker 05: And when he says, put your hands on the steering and shoots him, his hands are almost on the steering wheel and he gets shot. [00:21:59] Speaker 03: The Supreme Court has told us that there has to be a case with similar facts that would put the officer on notice that what he has done violates the person who shot constitutional rights. [00:22:15] Speaker 03: What case, in your view, is sufficiently similar that it would put any officer on notice that this shooting was unconstitutional? [00:22:26] Speaker 05: Well, Judge, I believe this is an obvious case if the standards set forth in Garner and Graham can clearly establish the answer without a body of relevant case law. [00:22:35] Speaker 05: But we do have case law in the Ninth Circuit. [00:22:37] Speaker 03: I was going to say, if we disagree with you regarding whether this is an obvious case, then what case do you have that would have put the officer on notice? [00:22:46] Speaker 05: Haysby County of San Diego, 736 F-3RD, 1223, Ninth Circuit case from 2013. [00:22:53] Speaker 05: Haysbys County of San Diego 736 after 1223 and is at 1233. [00:23:01] Speaker 05: In this case, Judge, again, I think the issue still is a factual issue, even if we are not conceding that Sam moved his hand towards the scratch. [00:23:15] Speaker 05: And say he testified at trial that he didn't, that he believes he moved his hand to the right. [00:23:21] Speaker 05: We still have the officer shooting him. [00:23:24] Speaker 05: We still, I think we still would be here because I think that the appellant would still disagree with the court, with the lower court's ruling as it pertains to [00:23:33] Speaker 05: whether or not Sergeant Miller had qualified immunity. [00:23:36] Speaker 05: And in this case, I can give you numerous hypotheticals. [00:23:40] Speaker 05: If I had a gun on my waist and my arms were folded, and Sergeant Miller told me, don't move my hand towards my weapon. [00:23:48] Speaker 05: He says, don't move my hand towards my weapon. [00:23:50] Speaker 05: And I move my hand towards my belly, he shoots me, qualified immunity, I believe, would apply. [00:23:56] Speaker 05: If he says raise your hands up, he doesn't say don't move your hands. [00:24:00] Speaker 05: He says raise your hands up in the same hypothetical. [00:24:03] Speaker 05: But my right hand, before I raise my hands up, goes down ever so gently. [00:24:07] Speaker 05: If I get shot, then I don't believe qualified immunity applies. [00:24:12] Speaker 05: It's a close call. [00:24:13] Speaker 05: But when my hand goes down, he doesn't shoot me, and my hands go up and I get shot. [00:24:19] Speaker 05: Qualified immunity should not apply because at that moment when I'm getting shot, I'm not posing a threat. [00:24:24] Speaker 05: Again, I believe the case law is on point as it pertains to whether or not Sergeant Miller has qualified immunity in a case where an individual's hands are going up as commanded. [00:24:37] Speaker 05: Sergeant Miller is the one who escalated everything in this case. [00:24:40] Speaker 05: If you look back, yes, Your Honor. [00:24:41] Speaker 03: Your case would be stronger if his hand hadn't gone back first. [00:24:45] Speaker 03: So if the hands, the only motion that was made was toward the steering wheel, then your case would be much stronger. [00:24:53] Speaker 03: The complicating fact is that the hand went back first. [00:24:59] Speaker 05: I understand the complicated nature of what happened in this case, but I respectfully disagree as it pertains to as complicated as it pertains to qualified immunity because our client gets shot when his hands are going up. [00:25:14] Speaker 01: But the problem is it's so fast that when you take into account reaction time, once the hand goes back before going up, it's just too short. [00:25:26] Speaker 01: I mean, is the officer supposed to bet his life on whether or not he's going to raise the hand or grab the gun? [00:25:31] Speaker 01: That's basically what the scenario is. [00:25:34] Speaker 05: Well, I think if the officer, the problem is in this case, [00:25:38] Speaker 05: We can see that Sam didn't grab the weapon. [00:25:42] Speaker 05: We can see that the officer even gave Sam an opportunity to comply because he gave him a second command. [00:25:50] Speaker 05: Let's say the officer didn't give the second command and he still shot Sam and we still have the same video. [00:25:55] Speaker 05: We still see Sam's hands going up and he shot without the second command. [00:25:59] Speaker 05: I believe their argument will be better than because there's no second command. [00:26:05] Speaker 05: That means that Sergeant Miller doesn't have that word with all to give him an opportunity to raise his hands. [00:26:10] Speaker 05: And then he's shot. [00:26:11] Speaker 05: I think when he's shot, he actually flinched. [00:26:14] Speaker 05: When Sam's hands go up, the officer actually, from our perspective, he flinches, pulls the trigger because his fingers already on the trigger when he sees his hand going up. [00:26:23] Speaker 05: If he had made the decision to shoot him when he actually saw his hand, he would have shot him right then and there. [00:26:28] Speaker 05: He would not have given him the second command. [00:26:30] Speaker 03: Counsel, in the Hayes case, there was no command given. [00:26:33] Speaker 03: Is that correct? [00:26:35] Speaker 05: Yes, Your Honor. [00:26:35] Speaker 03: But then that case isn't similar, factually, to this case, sufficiently similar. [00:26:41] Speaker 03: And it was a knife as opposed to a gun. [00:26:43] Speaker 03: They were further apart. [00:26:45] Speaker 03: So I'm not sure that this case is sufficiently similar to constitute [00:26:52] Speaker 03: notice to officers that this conduct in this case would be unconstitutional. [00:27:01] Speaker 05: Judge, I think the quintessential issue here is that I don't believe the court should try to answer as a matter of law in a situation where their facts are specifically tailored to what happened in this particular case. [00:27:20] Speaker 05: I think [00:27:21] Speaker 05: In this particular case, any officer out there since 1985 knows that you shouldn't shoot an individual who's not posing a threat at the moment you shoot him. [00:27:33] Speaker 01: The problem is the individual has a gun in his lap. [00:27:36] Speaker 01: You pull him over and you come up. [00:27:40] Speaker 01: That's an unusual situation that the gun is right there. [00:27:43] Speaker 01: You think they would have at least put the gun off to the side before, you know, once you're pulled over and you know an officer is going to go, but the gun is there in the lap. [00:27:52] Speaker 01: That is an objectively threatening situation to start with. [00:27:57] Speaker 05: But it's not illegal. [00:27:58] Speaker 05: And at the trial, he explained why he had his gun in his lap. [00:28:02] Speaker 05: He explained that he put it there because he had been pulled over before reaching for his gun to make sure the officer could see the gun. [00:28:08] Speaker 05: And the officer slapped him, didn't slap him, but got on him about that. [00:28:11] Speaker 05: Don't go for a gun when we're walking up. [00:28:13] Speaker 05: And so he didn't do that again. [00:28:15] Speaker 05: He just had it in his lap when he was driving, didn't move the gun, and knew that the officer should see the gun when the officer got there. [00:28:24] Speaker 05: I see I ran out of time. [00:28:25] Speaker 03: You exceeded your time. [00:28:26] Speaker 03: Thank you, Judge. [00:28:26] Speaker 03: Thank you. [00:28:27] Speaker 03: Rebuttal. [00:28:30] Speaker 00: Thank you, Your Honors. [00:28:31] Speaker 00: I just want to make the point. [00:28:32] Speaker 00: The point that was just made about another officer pulling him over, that's not in the record. [00:28:36] Speaker 00: I would ask this court to disregard it. [00:28:39] Speaker 00: Your Honor, you pointed out exactly the problems with Hayes that I was about to point to. [00:28:42] Speaker 00: So we are now left with Mr. Blackwell and Mr. Dank have pointed to no established law that would have put Sergeant Miller on notice that his behavior was unconstitutional. [00:28:57] Speaker 00: And I was a little confused by counsel's argument because in one sense he says, well, we would have been better off if we had shot him sooner. [00:29:03] Speaker 00: But at the same time, everything did unfold very quickly. [00:29:08] Speaker 00: It was a rapidly tense evolving situation. [00:29:11] Speaker 00: By the time, supposedly, I mean, and everyone who looks at this video, I'll tell you, sees something a little different. [00:29:16] Speaker 00: So I've had people say they believe, yes, they see the backwards motion. [00:29:21] Speaker 00: Yes, they believe they see hands go up. [00:29:22] Speaker 00: At some point, I've had people say, no, I never really quite see either one. [00:29:26] Speaker 00: So I don't believe the VWC is helpful here. [00:29:28] Speaker 02: Would you then address the argument that we don't have appellate jurisdiction, there's a fact issue? [00:29:34] Speaker 00: Oh, I don't believe there's a fact issue. [00:29:36] Speaker 00: We can take all of those facts and all in the plaintiff's favor and this court should still find that there was no clearly established law and that Sergeant Miller's actions were objectively reasonable whenever there is a gun within the vicinity and he wants to make a deal out of him not being armed. [00:29:53] Speaker 01: I think the video is very important on the jurisdictional issue because the district court says that [00:30:03] Speaker 01: there's a triable issue of fact, which would trigger the, you know, Johnson v. Jones or Joan, whichever it is, jurisdictional problem. [00:30:13] Speaker 01: But we said in a state of Anderson in footnote three, that Scott v. Harris is an exception to that. [00:30:21] Speaker 01: And you can take the video, even if the district court gets the video wrong, and you can take the video and say, it's on the video. [00:30:30] Speaker 01: And so I'm not sure that you can say that the video doesn't matter to this case. [00:30:35] Speaker 00: And even if the court wants to take the video into account, and even with all of those facts going directly in Mr. Dank's favor, based on precedent from this court and the Supreme Court, Sergeant Miller still acted reasonably, and there's still no established case law which would put him on notice. [00:30:58] Speaker 03: Even if he acted unreasonably, there is no established case law that would have put him on notice. [00:31:03] Speaker 03: Yes, Your Honor, I misspoke. [00:31:04] Speaker 00: So we believe either prong is met here. [00:31:07] Speaker 00: We believe he acted reasonably because Mr. Dank had a gun in his lap within inches of his hand, and his hand was sliding around, whether it went right, whether it went back, whether eventually it went up. [00:31:18] Speaker 00: The point is that he sees it going towards the area where a gun is located, and he reacted. [00:31:22] Speaker 00: He pulled the trigger to make sure that he could go home to his wife and kids that night. [00:31:27] Speaker 03: Thank you, Your Honor. [00:31:28] Speaker 03: Thank you to both counsel for your helpful arguments. [00:31:30] Speaker 03: The case just argued is submitted for decision by the court.