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The United States Court of Appeals for the Ninth Circuit is now in session.

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Good morning, counsel.

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Welcome.

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Welcome.

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We are now this morning scheduled to hear the case of Sanderlin versus Dwyer.

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Can you both hear me?

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Yes, your honor.

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Yes.

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Good morning, your honor.

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And can you see the clock as well?

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Yes.

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Yes.

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So Johnson, you may begin when you're ready.

[00:00:30] Speaker 00:
Good morning, Your Honors, and thank you for taking time to hear this case.

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Before I get started, I would like, first of all, my name is Ardell Johnson.

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I am appearing for defendants in this matter.

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And before I get started, I would like to give credit to my colleague, Michael Pritchard, Matthew Pritchard, who did all of the briefing in this matter.

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but who cannot make the appearance this morning because unexpectedly he was appointed to the Superior Court bench in Santa Clara County and before we before we anticipated losing him.

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But I do want to thank Mr Pritchard for his good work on this case.

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Well, congratulations to him.

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Please convey our congratulations.

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I will.

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May it please the Court, this morning I would actually like to reserve say two minutes for rebuttal and I would like to focus

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my argument this morning on defendant Jason Dwyer, Captain Dwyer.

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There are four principal reasons why we contend the trial court erred in failing to grant qualified immunity to Captain Dwyer.

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First of all, there's no clearly established law that established that it was unconstitutional for him to authorize the 37 millimeter, the use of 37 millimeter projectiles to disperse the unlawful assembly in this matter on May 29th which was the date that he issued that authorization.

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Secondly,

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It's our contention that the court applied an incorrect legal analysis the plaintiff's Fourth Amendment claims by using an incomplete test for whether or not the plaintiffs were seized under the Fourth Amendment.

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Third,

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We believe that the court erred because there's no evidence sufficient to establish a causal connection between Captain Dwyer's authorization of the use of the 37 millimeters and the injuries that plaintiff alleged.

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And last but not least, we believe that the court misapplied the gram factors by failing to consider the totality of circumstances

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from the perspective of a reasonable officer on the scene, and instead the court focused on the singular plaintiffs and what they were doing.

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Mr. Johnson, may I ask you a question at this point?

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Yes.

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Some of the points you just brought out seem to apply to the first prong of qualified immunity, which is

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whether if you take the facts in the light most favorable to the plaintiffs, a reasonable jury could find a constitutional violation.

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And assuming that the answer to that is yes, then for qualified immunity purposes, you go to the second prong, which was, was the law clearly established?

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And some of the points you just raised relate to the first.

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I don't know about my colleagues, but I find the question of whether or not the law was clearly established with respect to Dwyer in his supervisorial capacity and the constitutional violation at stake, whether for Dwyer the law was clearly established.

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I would be interested in hearing your argument on that.

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Yes, the trial court relied primarily, if not exclusively, on the Nelson v. City of Davis case for purposes of identifying what the trial court believed was clearly established law.

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The Nelson case is highly distinguishable from

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the situation that Captain Dwyer faced in May of 2020, in that in the Nelson case, there was a very small group of students who were essentially blocked into a tight space in an apartment complex, whereas Captain Dwyer was facing hundreds of protesters, a number of whom

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were throwing objects at police who created a significant danger to the safety of the officers who were there to essentially keep the peace.

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And so the other difference is that in

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this case, in our case, what Captain Dwyer authorized

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was the use of a tool that was designed essentially to scare away these protesters.

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There was, as the court knows from reading the briefs, a declaration that the assembly had become unlawful.

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There's one question I have with respect to that particular point.

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Was it Dwyer who made the determination that the assembly was unlawful and declared it so?

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Yes, he was the incident commander on scene.

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And by the time that he made that determination, there had been a number of incidents that had occurred.

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There was an incident on the freeway where the protesters had blocked the freeway and essentially assaulted drivers in their vehicles.

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There were instances where, as I said, objects were being thrown at police officers.

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There was a police officer who had been rendered unconscious by the crowd.

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And at that point in time, based on the totality of the circumstances,

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Officer Captain Dwyer thought that it was appropriate to issue the unlawful assembly order.

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And so as part of that, he authorized the officers to use these 37 millimeter tools, which as the court knows from reading

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the record are not, they're not tools that are designed to target specific individuals.

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They're designed to basically make a lot of noise, spew out four or five rubber pellets.

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One last question in this area from my perspective and that is do we know where Dwyer was during the

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the incident that evening?

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Was he at the scene at the command center?

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Was the command center close to where all this took place?

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Do we know from the record?

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As much as we know from the record is that he was on scene.

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And I can't tell you exactly where on scene he was, but he was physically present where all this was occurring.

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That's helpful.

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So the reason I ask these questions is because the district court, as I understand at the end of her ruling on whether or not the law was clearly established or whether a supervisor in his position would have understood that the law was clearly established and what it was, was that she said, she determined that there were material factual issues in dispute that had to be resolved before you could really answer

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the clearly established prong of qualified immunity.

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What was wrong with that?

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Well, we disagree with that, because regardless of how, well, part of that is what we think is a legal error in her failure to consider the totality of the circumstances.

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And essentially, what she did, if you look at the record, is

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is look at each individual plaintiff's situation, and they say they were peaceful.

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We don't take issue with that for purposes of summary judgment.

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But she didn't look at the totality of the circumstances.

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She didn't look at the fact that there were hundreds of people there in the streets.

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And I think that is

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that part of the analysis is a legal error and of itself.

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The interesting thing about your comment, Your Honor, is that if Judge Freeman herself recognized, I think, that there was

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No, I think she actually recognized there was no law that clearly said under these circumstances Captain Dwyer acted unconstitutionally by ordering or authorizing the use of

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the 37 millimeters and if you'll take a look at the supplemental excerpts from the record at page 424 which is a part of the oral argument she says

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And just to quote part of it, so that's why, in my view, the only way for supervisory liability to attach is if I determine that Dwyer and Garcia's decision to deploy the force, the police force armed with less lethal weapons,

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that they were instructed they could use and the skirmish line was unconstitutional there's no basis for that that I know of at all and close quote and and so that's that's really what we're looking at is whether or not so would it make a difference in this case if the policy itself was problematic because I know part of the plaintiff's argument really relies on the inaccuracy of using the 37

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millimeter projectiles under these circumstances.

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There's a suggestion that the firing is very inaccurate.

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It's not supposed to be directly targeted at individuals.

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And so how do you respond to that?

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I don't see any sort of direct allegation or charge that the policy itself is unconstitutional.

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Is that right?

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Is my understanding of the record correct?

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I don't believe there is.

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Ms.

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Marino can correct me if I'm mistaken.

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And forgive me, but because I expected Mr. Pritchard to be arguing this, I'm not as familiar with some of those details, but I don't believe there is.

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But regardless, there's no case that we can find

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that would that says the use of, you know, a tool like this, which is designed to scare people away under circumstances where there is an unlawful assembly is unconstitutional.

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And so that's, you know, that's where we come back to, you know, this pure question of

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of qualified immunity and whether or not the Nelson case is a sufficient authority to have put Captain Dwyer on notice that merely authorizing the use of the 37 millimeter under circumstances where police officers are being assaulted and people have been directed to go home,

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and because of the violence that had taken place and the fact that the overall conduct had become untenable as an unlawful assembly.

[00:14:05] Speaker 03:
Sorry, I know your time is running and I actually had a question about Panangetti as a defendant.

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I know we've been talking about Dwyer, but could I ask you about the Sanderlin claim

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about the 48 millimeters.

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So I think as I understand your argument, you've argued that he wasn't seized because the intent was to have Sandro and leave instead of to restrain him.

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But it looks like there's evidence in the record that the 40 millimeters were actually expected to incapacitate.

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And so I'm wondering why that evidence that 40 millimeters shots would incapacitate someone doesn't mean that that is restraint.

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Well, 40 millimeters have the capability of incapacitating people.

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By and large, they don't, and the record indicates that.

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You know, if you look at the claims of Sharkey and DiDonato, for example, both of whom were hit with 40 millimeters, neither of them sustained anything close to an incapacitating injury.

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You know, by and large,

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uh the 40 millimeters are mostly uh so looking at ser 361 it says less lethal impact munitions are used to disorient and incapacitate injury should be expected so maybe it doesn't always but if it's expected that it will why don't the facts in light of the plane in the most in the light most favorable to the plaintiffs suggests that

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it was intended to restrain because it was intended to incapacitate.

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Well, in this particular case, I don't believe that that was the use intended.

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If you look at Panigietti's body-worn camera video, you will hear him tell Mr. Sandlerlin

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multiple times to move or he's going to be shot.

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And so, you know, the objective evidence of whether or not there was an intent to restrain is refuted by the fact that the clearly stated intent by Officer Panigetti was to get him out of the way by the fact that he was instructing him to move.

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I know you're out of time, but let me see if my colleagues have any additional questions, and then I'll give you a couple of minutes back for rebuttal.

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I know you wanted to save that.

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Thank you, Your Honor.

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Ms.

[00:16:56] Speaker 01:
Marino?

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Good morning, and may it please the court.

[00:17:00] Speaker 01:
My name is Sarah Marino.

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I represent the plaintiffs in this matter, some of whom were unintended targets who

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in the face of indiscriminate force used on a crowd combined of assaultive people and non-assaultive people, passive resistors and active resistors, all of the plaintiffs in this case were either unintended targets, for instance, Brianna Contreras, or arguably passive resistors such as Derek Sanderlin,

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who were brutally injured because of the indiscriminate force used to control a crowd.

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I'll begin with Dwyer because that's where Mr. Johnson began, but this is such a complicated, woven story that if the court guides me, I'll move on.

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Let me ask on Captain Dwyer, do we know whether, because Mr. Johnson said that, for example, Sharkey was hit with a 44 millimeter, do we know what they were hit with?

[00:18:06] Speaker 01:
We don't for some of the people, so for instance, Sharkey, we do not know, it's reasonable from the evidence that it was the 37 millimeter because at that point the- Your theory has to be that these group claims were hit with 37 millimeter rather than 40 millimeter in order to attach supervisory liability to Captain Dwyer, is that correct?

[00:18:36] Speaker 01:
Um, well, yes, because he was the one who authorized use of the 37 millimeter and that he approved his subordinates using it without coming to him each time.

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So he gave a blanket authorization for the rest of the evening that they could use it.

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And from the evidence, it seems like it was the 37 millimeter shooting multiple foam rounds in the direction of Adira Sharkey.

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Um, and,

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But without some evidence that in fact it was 37 millimeter instead of 40, how do you survive summary judgment?

[00:19:13] Speaker 01:
Well, Captain Dwyer was the incident commander for all purposes, so any use of force that day was authorized by him.

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He's the highest ranking officer on scene and was being kept up to date with

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all areas of the city hall area where protesters were.

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So even if it was a 40 millimeter, it would still have been under his supervision and direct authorization.

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But if he wasn't right there, if someone chose to use the 40 millimeter in a way that was unconstitutional,

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He couldn't have anticipated that, right?

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And he didn't tell them to do that.

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So I'm not sure how you would get to him being responsible for someone making a bad decision at a moment when he wasn't right there.

[00:20:02] Speaker 01:
Well, he set the culture that day.

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He authorized brutal control of the crowd.

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So whether or not it was the 40 millimeter or the 37 millimeter, he set the tone, told his officers how to respond to this group, which was a mix of

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a very small amount of people throwing rocks or water bottles and largely hundreds of people who were not doing anything except arguably passively resisting when they refused to leave as ordered.

[00:20:38] Speaker 04:
He authorized the use of 37 millimeter launchers for crowd purposes, right?

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I thought that that was really the linchpin of your theory and not that he's responsible for the 40 millimeter

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used by whoever as well.

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So that's a little bit different from what I understand your argument to be.

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But is there any allegation or suggestion that the policy itself is unconstitutional, that use of 37 millimeter in these circumstances is not standard accepted practice?

[00:21:12] Speaker 01:
No, not in this case.

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That is not an issue.

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Council, let me ask you this.

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Similar questions that I asked Mr. Johnson, which is, let's assume for a moment on the first prong of qualified immunity that a reasonable jury could maybe, you know, could find a constitutional violation and then go to the second prong, which is, was the law clearly established?

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So under the, you know, looking at all the circumstances and what Dwyer faced that day,

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What do you contend is the clearly established law that should have alerted him as a supervisor, but what if, you know, he would have understood that his actions were unconstitutional?

[00:22:06] Speaker 01:
I think I would point to Gravelet Blondin v. Shelton, which is a 2013 Ninth Circuit case.

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that says the rights be free from the application of non-trivial force for engaging in mere passive resistance was clearly established prior to 2008.

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Additionally, Nelson would put a supervisor on notice that indiscriminately shooting into a crowd that

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contains passive resistors or people who are not being aggressors is a constitutional violation.

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And then of course, Brendan talks about unintended persons of which, you know, at least half of these plaintiffs were unintended apparently.

[00:22:59] Speaker 02:
And then- So your argument, so let me just see if I can understand your argument, because you're pointing to those cases, but I guess your argument is that he should have, that he read those cases, if you're familiar with those cases, he should have known that by authorizing use of the 33, of the 37 millimeter, I don't want to forget what it's called, the 37 mm, that a supervisor in his position would have

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or should have known that the subordinate officers would have used those weapons in an unconstitutional way?

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Is that your argument?

[00:23:41] Speaker 01:
Yes, because they are by definition inaccurate weapons.

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And they are also the shooting of a projectile impact weapon at someone is not merely trivial force.

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It is a serious use of force that could injure someone.

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It's a weapon designed for injury and incapacitation.

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And he knows that the 37 millimeter has five foam batons that shoot out at the same time in different directions.

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So giving blanket authorization to use this at a crowd, not only was he on notice with Nelson and Gravelet, but it's also obvious.

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So I think

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separate and apart from the fact that it's clearly established, it should have been obvious you can't shoot indiscriminately into a crowd.

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And just like Nelson, these were young folks, students, the people there who were shot and who were liable to get shot with the weapons he authorized were young people voicing their anti-police sentiment.

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So let me ask you this, one last question for you.

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Is the whole linchpin of your theory that Dwyer authorized the use of the 37 millimeter?

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Is that, is that, that's the bottom line?

[00:25:09] Speaker 01:
Well, that's certainly a big piece of it.

[00:25:11] Speaker 02:
And then what are the other smaller pieces?

[00:25:14] Speaker 01:
Just that he was in charge of the entire scene.

[00:25:17] Speaker 01:
So the, the use of force in general, all of the other weapons use.

[00:25:22] Speaker 01:
So the 40 millimeter, the

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baton, the control of the crowds movement, and then of course the treatment of, which is separate, the arresting of Vera Clanton, for instance, which I know is kind of a separate side issue, but.

[00:25:46] Speaker 03:
I noticed you didn't list

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lack of training.

[00:25:49] Speaker 03:
Your brief had said that he should have known that the officers were not properly trained.

[00:25:53] Speaker 03:
But when I looked at the site for that, it didn't seem to be about training at all.

[00:25:57] Speaker 03:
So are you now backing away from the idea that they didn't have proper training?

[00:26:01] Speaker 01:
No.

[00:26:02] Speaker 01:
So what happened was that Monell did not survive that motion for summary judgment.

[00:26:06] Speaker 01:
So I think there is reference to training, but it's not at issue, I guess, on this appeal.

[00:26:14] Speaker 01:
So I don't know if that is what's

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complicating it.

[00:26:20] Speaker 04:
Right, so you're not relying on the suggestion that they were not trained in how to use 37, because I thought the red leaf, the answering leaf, did talk about your theory, right?

[00:26:29] Speaker 04:
Your theory is there's got to be a causal nexus.

[00:26:32] Speaker 04:
And so I thought your theory on the causal nexus is he gave blanket approval for the use of the 37 millimeter launchers.

[00:26:40] Speaker 04:
The group plaintiffs were hit with the 37 millimeter launchers.

[00:26:45] Speaker 04:
the use of this is not appropriate because it fires in inaccurately and the officers weren't trained on how to properly use it.

[00:26:54] Speaker 04:
I thought that was the main arguments tying the causal nexus from what happened to the captain.

[00:27:01] Speaker 04:
But what I'm hearing from your argument today is that there's no suggestion that the policy itself was not appropriate or unconstitutional.

[00:27:09] Speaker 04:
And there's no evidence suggesting that the officers weren't properly trained and

[00:27:15] Speaker 04:
So I think that makes your causal connection argument very problematic because it's not really tethered to the evidence in the record.

[00:27:24] Speaker 01:
I think the issue is it's impossible to have an officer or a person trained to use it on a crowd the way it was used because it's by definition inaccurate.

[00:27:37] Speaker 01:
So yes, I do maintain that he should have known

[00:27:41] Speaker 01:
giving blanket authorization to these officers to shoot a weapon into the crowd like that would necessarily result in people being hit that were unintended targets because you can't possibly aim at someone when five batons are going to shoot out in all directions.

[00:28:01] Speaker 03:
But doesn't the policy authorize the use of this for crowd control?

[00:28:04] Speaker 03:
So it sounds like you are challenging the policy then.

[00:28:08] Speaker 01:
Just not for that's a separate

[00:28:11] Speaker 01:
issue against this city though.

[00:28:13] Speaker 01:
So when it comes to Dwyer, whether or not he was following policy, let's just say, because I think for sake of argument, let's say there was a city policy and it's fine constitutionally or not.

[00:28:28] Speaker 01:
Whether he was following it, he still has individual liability for allowing it to be used that way.

[00:28:39] Speaker 02:
One other question for you.

[00:28:40] Speaker 02:
You don't allege that Dwyer was informed that the subordinate officers had used 37mm in an unlawful way against protesters who were just protesting, and that he then failed to take any action to stop

[00:29:07] Speaker 02:
the use of the 37mm.

[00:29:08] Speaker 02:
Is that right?

[00:29:12] Speaker 01:
He was, we do allege he was on scene, so he was there with his own eyes.

[00:29:16] Speaker 01:
He also knew that they ran out of projectiles they used in excess of 400 and had to order more.

[00:29:26] Speaker 01:
So that put him on notice that they're going overboard with the deployment of these projectiles.

[00:29:35] Speaker 01:
He also

[00:29:36] Speaker 01:
was there to see that the crowd was largely made up of people who were not aggressors.

[00:29:44] Speaker 01:
So I think that's the allegation is that he was present.

[00:29:49] Speaker 01:
He saw everything going on and didn't intervene, but also didn't withdraw his authorization.

[00:29:56] Speaker 04:
I have one more question on Dwyer and then I'd like you to address Hanif Keri.

[00:30:05] Speaker 04:
There were, as I understand it, well over 240 officers from various agencies who responded.

[00:30:13] Speaker 04:
Is there any indication in the record that as the incident commander that he was supervising officers from other agencies as well?

[00:30:24] Speaker 04:
And I ask this because the group plaintiffs weren't able to identify exactly who fired the shot that struck them.

[00:30:34] Speaker 01:
Um, thank you, your honor.

[00:30:36] Speaker 01:
So there was, I'm trying to find where it was, where it was established that no other jurisdiction, although a few were present, no one, there was no information that anyone else fired a weapon or used force.

[00:30:49] Speaker 01:
Um, I'm gonna have to pull that up while I'm talking.

[00:30:53] Speaker 01:
If that gets to the

[00:30:55] Speaker 04:
question.

[00:30:56] Speaker 04:
I'm not sure I understand your question.

[00:30:58] Speaker 04:
So you're saying that other officers were on scene, but only San Jose Police Department officers use force.

[00:31:05] Speaker 04:
And that's how how you tie it to Catherine Dwyer.

[00:31:08] Speaker 01:
Right.

[00:31:09] Speaker 01:
So I think you're talking about the multi agency response.

[00:31:13] Speaker 01:
So there's some sort of code.

[00:31:15] Speaker 01:
I'm forgetting the code name code blue.

[00:31:17] Speaker 01:
And they asked for all neighboring law enforcement agencies to respond.

[00:31:22] Speaker 01:
And they apparently did.

[00:31:24] Speaker 01:
but who supervised the other agencies officers did he as the incident commander have any authority over them Dwyer I mean right um so I think they were at the ready there's no evidence in the record that they were boots on the ground in the mix so the only agency that was

[00:31:47] Speaker 01:
in the area was the sheriff's office of Santa Clara County, but there's zero evidence that they deployed any weapons, used any force, and then they were the only ones in the vicinity.

[00:32:01] Speaker 01:
I don't know where all the other people were if they made it to town.

[00:32:05] Speaker 01:
They were just basically summoned.

[00:32:08] Speaker 04:
I see.

[00:32:09] Speaker 04:
Okay.

[00:32:09] Speaker 04:
With regard to

[00:32:12] Speaker 04:
can you respond to Mr. Johnson's argument on seizure?

[00:32:16] Speaker 04:
Because here you can hear on the video the order to disperse, the warning to disperse.

[00:32:22] Speaker 04:
And so how do you respond to this argument that there was no seizure in this particular case?

[00:32:27] Speaker 04:
Because there's no objective evidence of an intent to restrain.

[00:32:32] Speaker 01:
So I think that first of all, yes, you can hear it on the body cam, but it was a loud scene.

[00:32:41] Speaker 01:
there's no evidence or the evidence is from Mr. Sanderlin that he didn't hear that from where he was standing.

[00:32:49] Speaker 01:
We're hearing it with the benefit of the body camera and the microphone that the officer is speaking into and then it records.

[00:32:56] Speaker 01:
So I would like.

[00:32:57] Speaker 03:
But it seems that Torres tells us we have to look for an intent to restrain Torres, the Supreme Court case.

[00:33:03] Speaker 03:
So why wouldn't it matter what the officer thought?

[00:33:07] Speaker 03:
Even if even if Sanderlin didn't hear it.

[00:33:12] Speaker 01:
Well, so Nelson rejected Panagieti's theory.

[00:33:17] Speaker 03:
Nelson is before Torres, so it's a pretty convincing argument that Nelson is wrong after Torres and doesn't survive Torres saying there needs to be an intent to restrain.

[00:33:31] Speaker 01:
But Torres did not hold that force used for other purposes can never be held to have seized or restrained.

[00:33:42] Speaker 01:
In fact,

[00:33:43] Speaker 01:
as we see in the video, Mr. Sanderlin falls and is down, not to mention in both- I actually didn't see that in the video.

[00:33:53] Speaker 03:
It looked like he did stop momentarily, but then walk away.

[00:33:57] Speaker 03:
I didn't see him fall.

[00:33:59] Speaker 04:
Okay.

[00:34:00] Speaker 04:
I think- He limped away.

[00:34:02] Speaker 04:
So he maybe momentarily was sort of frozen in pain.

[00:34:08] Speaker 04:
So is your argument that the incapacitation is sufficient to constitute a seizure under Torres?

[00:34:14] Speaker 01:
Yeah, so I think he kind of doubled over and then you're right hobbles off and off camera falls where he remained.

[00:34:24] Speaker 01:
But yes, so the officer intended to shoot him.

[00:34:28] Speaker 01:
That's undisputed with a weapon that is meant for incapacitation.

[00:34:33] Speaker 01:
And if Brower

[00:34:37] Speaker 01:
is the case that says it worries about qualified immunity parsing too narrowly and talks about if you're stopped by the accidental discharge of a gun that the officer only meant to bludgeon you with, for instance, or if you're shot with a bullet through the heart that was intended to only shoot you in the leg.

[00:35:00] Speaker 01:
The Broward Court said that's an example of

[00:35:05] Speaker 01:
What we don't want is that the officer did intend to do something here.

[00:35:09] Speaker 01:
The evidence from him is that he intended to shoot in the abdomen, missed, and hit the groin.

[00:35:15] Speaker 01:
But in any event, even if he had successfully shot in the abdomen, that also would have been excessive.

[00:35:23] Speaker 01:
He meant to interfere with Derek Sanderlund's movement, his actions.

[00:35:31] Speaker 01:
So if we,

[00:35:33] Speaker 03:
think there is enough evidence that because the weapon is expected to incapacitate, that's enough for restraint under Torres.

[00:35:44] Speaker 03:
If Torres tells us that Nelson's rule was wrong because you need this intent to restrain, but say you can satisfy that because of the incapacitation, can we still rely on Nelson as the clearly established law if Nelson is wrong in a way?

[00:35:59] Speaker 01:
Well, I think the difference is that

[00:36:03] Speaker 01:
Torres had no occasion to define the full scope of the meaning of restraint.

[00:36:11] Speaker 01:
And restraint is a broader term than apprehension.

[00:36:15] Speaker 01:
So it's not a requirement that Panigetti wanted to then rush and put Derek Sanderlin in handcuffs, for instance.

[00:36:26] Speaker 01:
That is not required when finding a seizure.

[00:36:31] Speaker 01:
So are you saying we can rely on Nelson?

[00:36:34] Speaker 01:
Is that what you're saying?

[00:36:35] Speaker 01:
Yes, for that concept because Torres does not circumscribe Nelson in terms of the definition of restraint or apprehension.

[00:36:50] Speaker 03:
Let's say for a moment that Torres does get rid of that part of Nelson.

[00:36:54] Speaker 03:
Nelson was still the law at the time, because Torres comes later.

[00:36:58] Speaker 03:
Is it possible to still rely on Nelson?

[00:37:03] Speaker 03:
If you're saying that Torres... Because Torres wasn't decided yet when this incident happened.

[00:37:12] Speaker 03:
So can you rely on Nelson, because Nelson was the law at the time, even if Torres now tells us that Nelson is wrong?

[00:37:20] Speaker 01:
Well, yes.

[00:37:22] Speaker 01:
The difference, though...

[00:37:24] Speaker 01:
think that Torres was about a fleeing suspect.

[00:37:31] Speaker 01:
So that was an unsuccessful attempt to apprehend that suspect.

[00:37:38] Speaker 01:
And so I just don't think that part is applicable here.

[00:37:43] Speaker 01:
And Nelson talked about people who were sitting in one place and had force used on them.

[00:37:52] Speaker 01:
and they weren't fleeing.

[00:37:54] Speaker 01:
They were, in fact, they were refusing to move, right?

[00:37:57] Speaker 01:
So that's why Torres isn't helpful in defining seizure for us here in a circumstance with- All right, I think we've got your argument.

[00:38:08] Speaker 04:
Our questioning took you well over time, but we appreciate your helpful comments.

[00:38:12] Speaker 04:
Mr. Johnson?

[00:38:16] Speaker 04:
Oh, hold on one second.

[00:38:17] Speaker 04:
Let's put a couple of minutes on the clock

[00:38:28] Speaker 04:
All right, go ahead, sir.

[00:38:30] Speaker 00:
Thank you, Your Honor.

[00:38:30] Speaker 00:
I just want to respond to a couple of things.

[00:38:37] Speaker 00:
First of all, with regard to the record and interpreting the evidence most favorably, the plaintiff, with regard to Contreras, Di Donato, and Sharkey, there's nothing in their declarations that they submitted or in any other evidence

[00:38:57] Speaker 00:
that indicates what they were shot with.

[00:39:03] Speaker 00:
They all say that they don't know what it was that hit them.

[00:39:09] Speaker 00:
And with respect to Mr. Stukes, we know that's a 40 millimeter projectile because he said that he pulled one out of his backpack.

[00:39:20] Speaker 00:
So with regard to that trio of Contreras, Di Donato, and Sharkey,

[00:39:27] Speaker 00:
even interpreting the evidence most favorably to them, there's nothing that indicates what it was that hit them.

[00:39:37] Speaker 00:
And then I guess the last thing that I'd like to respond to is

[00:39:42] Speaker 00:
The clearly established law, the Gravlet case involved a Taser and a Dart mode.

[00:39:50] Speaker 00:
I don't think that's applicable here.

[00:39:52] Speaker 00:
The Nelson case, the court's well familiar with.

[00:39:57] Speaker 00:
And it's been briefed very thoroughly, so I don't think there's much that I can add to that.

[00:40:06] Speaker 00:
At the end of the day, I think what the district court did was define clearly established law too generally.

[00:40:13] Speaker 00:
The court said that the question was whether it was clearly established that an officer couldn't shoot a projectile at an individual who was peacefully protesting.

[00:40:24] Speaker 00:
I think that the question should have been whether or not it was clearly established that it was unconstitutional to authorize the use of 37 millimeter projectiles to disperse a large crowd that was in a public space containing both peaceful and violent protesters who were engaged in

[00:40:49] Speaker 00:
violence toward police officers and and you know when you look so the framing of the question makes a difference here and and what we have here is a situation where you have a crowd that has become violent

[00:41:06] Speaker 00:
was declared as an unlawful assembly and a tool that is used exclusively to repel or disperse people was deployed.

[00:41:19] Speaker 00:
And there's no case that I'm aware of that I've found that would indicate to Captain Dwyer that it was unconstitutional to authorize the use under those circumstances.

[00:41:33] Speaker 00:
Thank you, Your Honors.

[00:41:35] Speaker 04:
All right, thank you very much to both sides for your argument today.

[00:41:37] Speaker 04:
They've been very helpful.

[00:41:39] Speaker 04:
The matter is submitted, and we'll issue a decision in due course.

[00:41:43] Speaker 00:
Thank you.

[00:41:44] Speaker 00:
Have a great day.

[00:41:45] Speaker 04:
Thank you.