[00:00:02] Speaker 02: Good morning and welcome to the Ninth Circuit Court of Appeals [00:00:08] Speaker 02: There's all kinds of stuff to get situated here. [00:00:12] Speaker 02: My name is Morgan Christen. [00:00:13] Speaker 02: I'm one of the judges on the circuit court. [00:00:15] Speaker 02: I'm here today in Portland from Alaska, which is where my chambers are, and delighted to be here. [00:00:22] Speaker 02: I'll be sitting this week with Judge Winn, my colleague whose chambers are in Pasadena. [00:00:27] Speaker 02: And we're both delighted to welcome and thank Judge Ezra, who's here. [00:00:30] Speaker 02: Thank you so much. [00:00:31] Speaker 02: Thank you. [00:00:32] Speaker 02: Who's here helping us out on our calendar. [00:00:35] Speaker 02: I have a little bit of housekeeping before we begin. [00:00:37] Speaker 02: There were three cases submitted on the briefs originally scheduled for the Monday calendar, Monday, August 19th. [00:00:46] Speaker 02: They are 22-35870 Collins versus Samuelson, 23-1885 United States of America versus Blackman, and 23-2139 United States of America versus Hornoff. [00:01:03] Speaker 02: Turning to today's calendar, August 20th, we have submitted four cases, 23-1780, United States versus Strong, 23-35442, United States versus La Fremboise, 23-35556, Hillsinger versus O'Malley, and 23-1047, Meridon versus Federal Aviation Administration. [00:01:33] Speaker 02: There's another case set on the calendar for today on which I am not a part of the panel. [00:01:39] Speaker 02: It has also been submitted. [00:01:40] Speaker 02: That is 23-35468 Bungee. [00:01:45] Speaker 02: With that, we're ready to go to the first oral argument on the calendar for today. [00:01:50] Speaker 02: It is McCrae v. Salem, City of Salem, 23-35207. [00:02:07] Speaker 02: Council, if you could give me one minute, I'm still getting my deal set up here. [00:02:26] Speaker 02: Okay, good to go. [00:02:32] Speaker 01: Good morning, Your Honors, and may it please the court, Athula Charya for the Plaintiff Appellant, Elakia McCray. [00:02:37] Speaker 01: I'd like to reserve three minutes. [00:02:38] Speaker 02: Sure. [00:02:38] Speaker 02: Just keep an eye on the clock, please. [00:02:40] Speaker 01: Yes, Your Honor. [00:02:41] Speaker 01: The rule when an officer seeks qualified immunity as a matter of law after losing a trial is that evidence favoring the officer is disregarded unless the jury was required to believe it, and evidence favoring the plaintiff is taken as true. [00:02:54] Speaker 02: May I interrupt right there? [00:02:55] Speaker 02: I think you're citing the rule from the Reeves case. [00:02:58] Speaker 02: Is that right? [00:02:58] Speaker 01: That's right. [00:02:59] Speaker 01: OK. [00:03:00] Speaker 01: Officer Johnston lost a trial. [00:03:02] Speaker 01: The jury found that he shot my client in the eye and it rendered a verdict in her favor. [00:03:07] Speaker 01: But then, crediting evidence that favored Johnston rather than McCray, the district court found that he skipped fired the round off the ground and on that basis it granted him qualified immunity. [00:03:17] Speaker 01: That was error. [00:03:18] Speaker 01: There was evidence at trial that Johnston couldn't have skipped fired the round, that if he had, [00:03:22] Speaker 01: it would have had literally zero chance of hitting anyone in the eye. [00:03:25] Speaker 02: Whether there was or not, we don't know that from the special verdict, right? [00:03:30] Speaker 02: So the judge is in a position to make a finding one way or another, is she? [00:03:34] Speaker 01: That's correct. [00:03:35] Speaker 01: The special verdict didn't answer that question, but the evidentiary standard exists to prevent sort of freewheeling factual finding after a jury verdict. [00:03:43] Speaker 02: I think I'm trying to ask a different question, but I'm not asking it very well. [00:03:46] Speaker 02: So we have three special verdict findings here, and they're quite limited. [00:03:51] Speaker 02: One of them, of course, is that the force was excessive. [00:03:53] Speaker 02: But we don't know why the jury thought the force was excessive. [00:03:56] Speaker 02: Maybe they thought skip firing was excessive. [00:03:59] Speaker 02: Maybe they thought that the defendant shot, direct shot. [00:04:02] Speaker 02: We just don't know. [00:04:03] Speaker 02: So my question is, is there any case law that allows the district court in this posture at 50B to make a finding of fact based on that record, as long as it doesn't conflict with the jury verdict? [00:04:17] Speaker 01: Not that I know of, Your Honor. [00:04:19] Speaker 01: The Tan Lam case is, I think, the most recent and the case that's most on point. [00:04:23] Speaker 01: And what Tan Lam says is that where the jury was asked specific questions and special interrogatories, those answers control. [00:04:30] Speaker 01: Where there are open questions of fact that need to be answered to render a decision on qualified immunity, the same standard as in Reeves is used. [00:04:39] Speaker 02: Meaning? [00:04:40] Speaker 02: Just if I could just unpack that meaning. [00:04:42] Speaker 02: So that's what we have. [00:04:43] Speaker 02: We're in the latter situation where there's some open question. [00:04:45] Speaker 01: Exactly. [00:04:46] Speaker 02: And so my question was, can the judge make those findings as long as they don't conflict? [00:04:51] Speaker 02: She would have to view all the contested evidence in the light most favorable, right? [00:04:57] Speaker 02: Yes. [00:04:57] Speaker 02: She'd have to do that. [00:04:58] Speaker 02: And as long as she is consistent with the summary judgment standard, can she go forward and make findings of fact at the Rule 50B stage? [00:05:07] Speaker 01: I think to the extent that those findings are consistent with the evidentiary standard, yes. [00:05:13] Speaker 01: OK. [00:05:14] Speaker 01: Because ultimately, [00:05:16] Speaker 01: The question of qualified immunity and the question of whether the officer violated clearly established law does require the answer sometimes to questions that are not answered by the jury. [00:05:25] Speaker 02: Right. [00:05:26] Speaker 02: So not to belabor the point, but your problem isn't, I think your argument isn't, that the district court was prevented from making any findings a fact. [00:05:34] Speaker 02: I think, if I'm understanding you correctly, your argument is that the findings made here are contrary to the controlling standard. [00:05:41] Speaker 00: That's right, Your Honor. [00:05:41] Speaker 02: Thank you. [00:05:42] Speaker 00: Let me ask you this, Counsel, because I think the problem is really created by the way the parties set up the special findings, right? [00:05:50] Speaker 00: So I think in handling this motion, sometimes courts are forced to make certain inferences [00:05:58] Speaker 00: that's fairly based on the record and it seems to me that this is that sort of situation because the trial was conducted on multiple theories and so now the question is what theory is most consistent with the findings and of course with inferences in your favor. [00:06:19] Speaker 00: I know that in the record you relied very much on Officer Johnston's testimony that it would have been [00:06:26] Speaker 00: nearly impossible. [00:06:29] Speaker 00: I'm probably paraphrasing, but something along the lines that [00:06:32] Speaker 00: that if he had skip firing really wouldn't result in her being hit in the eye with something that he fired in any event. [00:06:41] Speaker 00: Was that the only evidence that you have, or were there other pieces of evidence in the record that you want to share with us? [00:06:47] Speaker 01: Yeah, there's quite a bit of other evidence, Your Honor. [00:06:49] Speaker 01: Multiple witnesses testified that a skip fired round couldn't bounce above about 2 and 1 half feet high. [00:06:54] Speaker 01: Right. [00:06:54] Speaker 00: No, I understand that. [00:06:56] Speaker 00: I guess the impossibility of it, because it's unpredictable. [00:06:59] Speaker 00: You're firing on the rounds. [00:07:00] Speaker 00: There are multiple. [00:07:02] Speaker 00: little rubber pieces flying all over the place. [00:07:05] Speaker 00: So I know it's designed not to go high enough to hit the eye, but the crux of that testimony that if he'd skip fire, it couldn't have bounced as high as hitting her in the eye, that came from Officer Johnstone, correct? [00:07:17] Speaker 01: Came from Johnston. [00:07:18] Speaker 01: There's also evidence to that effect from plaintiff's expert. [00:07:22] Speaker 01: And Your Honor said that it's unpredictable. [00:07:25] Speaker 01: I think you were maybe quoting plaintiff's expert, because that was in my friend on the other side's briefing. [00:07:30] Speaker 01: But the quote from the expert was, you can't determine in which direction they're going to go, especially depending on the terrain, because the round is incredibly unpredictable. [00:07:38] Speaker 01: So the expert was talking about the direction being unpredictable, because they're bouncing around, they're hitting each other, but not about the magnitude of the bounce. [00:07:45] Speaker 01: That was, he also testified about that in response to questioning from- Excuse me, who's the he in your sentence? [00:07:51] Speaker 01: The expert, sorry. [00:07:53] Speaker 02: The expert testified about the magnitude of the bounce? [00:07:56] Speaker 01: He actually did. [00:07:57] Speaker 02: Where? [00:07:58] Speaker 01: It's on pages 542 to 43 of the ER3. [00:08:05] Speaker 01: He didn't use the word magnitude. [00:08:06] Speaker 01: I'm sort of paraphrasing a little bit, but I'll quote it directly. [00:08:09] Speaker 01: Defense counsel asked him, I'm just saying it would slow down once it impacted the ground, right? [00:08:15] Speaker 01: Just under the basic law of physics. [00:08:17] Speaker 01: And he said, yes. [00:08:19] Speaker 02: Does he come any closer to saying, to answering Judge Nguyen's question? [00:08:22] Speaker 02: It's the height of the bounce. [00:08:24] Speaker 01: I don't think he says anything more than that about the height of the bounce. [00:08:27] Speaker 01: All right. [00:08:29] Speaker 00: That was my understanding from reviewing the record that the best piece of evidence you have to argue that the inference should have gone the other way is from Johnstone himself. [00:08:39] Speaker 01: That's right, Your Honor. [00:08:40] Speaker 01: And just sort of, I don't know, to maybe head off [00:08:45] Speaker 01: A question there. [00:08:46] Speaker 01: Reeves didn't say that the court should give credence to the non-movement's evidence. [00:08:52] Speaker 01: It said the court should give credence to evidence favoring the non-movement. [00:08:56] Speaker 01: So it doesn't really talk about which side put in the relevant evidence? [00:09:00] Speaker 02: Well, it says more than that. [00:09:01] Speaker 02: It says although the district court should review the second, excuse me, should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. [00:09:15] Speaker 02: Exactly right your honor so apply that rule if you would please was the jury required to believe that officer Johnston shot. [00:09:24] Speaker 02: Absolutely not was the jury required to believe his testimony that he did not direct fire. [00:09:30] Speaker 01: Uh, no. [00:09:31] Speaker 01: All of that was, was, was, uh, controverted or, you know, there was, there were inferences that the jury could draw from the other evidence, like the evidence that he himself, his own testimony that he, that a skip fired round couldn't hit her in the eye. [00:09:42] Speaker 02: Right. [00:09:43] Speaker 02: I, I, I think that's right. [00:09:44] Speaker 02: And that's how I apply that rule too. [00:09:46] Speaker 02: But it does circle back to Judge Wynn's point, which is, this is a very peculiar situation where this special verdict [00:09:52] Speaker 02: form, didn't ask the question. [00:09:54] Speaker 02: Of course, in hindsight, we wish it had. [00:09:57] Speaker 02: And the trial judge is left in a position where she had testimony that certainly suggests that he skipped shot, or at least that was his training. [00:10:06] Speaker 02: He says that's what he did. [00:10:08] Speaker 02: Nobody says he didn't. [00:10:09] Speaker 02: Nobody says he didn't. [00:10:11] Speaker 02: And yet this rule from Reeves seems to suggest that she was required to disregard that testimony. [00:10:17] Speaker 01: So no one says he didn't because, you know, this is around the travel of 200 miles an hour. [00:10:23] Speaker 01: There's not going to be an eyewitness that sees it travel from the muzzle of his gun to McCray's eye. [00:10:30] Speaker 01: So the only thing that's left is, so the jury found, you know, on the one hand he didn't target her. [00:10:35] Speaker 01: But on the other hand, he did shoot her in the eye. [00:10:37] Speaker 01: And so then the question is, well, how did it get from the barrel of his gun to her eye? [00:10:41] Speaker 01: And there's two sort of metaphysical possibilities. [00:10:43] Speaker 01: One is that he skip fired it. [00:10:45] Speaker 01: The other is that he direct fired it. [00:10:46] Speaker 01: The evidence that he skip fired it. [00:10:48] Speaker 02: Well, he argued that he didn't fired it at all. [00:10:50] Speaker 02: That's right, Your Honor. [00:10:50] Speaker 02: The jury did say that's the other finding, that he shot her. [00:10:53] Speaker 01: That's right, exactly. [00:10:55] Speaker 01: So the jury rejected both sides. [00:10:57] Speaker 01: The jury rejected the aiming theory, but it also rejected the I didn't fire it theory. [00:11:02] Speaker 01: And so that leaves an open question for the district court. [00:11:04] Speaker 01: This happened in Tanlam, too, by the way. [00:11:06] Speaker 01: In Tanlam, too, there were open questions left after the jury's factual findings. [00:11:09] Speaker 01: And the court said, well, we follow the Reeve standard there. [00:11:12] Speaker 01: So then the evidence that Johnston [00:11:16] Speaker 01: that a skip fired round couldn't hit McCray in the eye. [00:11:18] Speaker 01: That evidence favors McCray. [00:11:19] Speaker 01: That means the district court should have believed that. [00:11:22] Speaker 01: Johnston's testimony that he never direct fired rounds. [00:11:27] Speaker 01: That evidence favors Johnston. [00:11:28] Speaker 01: So unless the jury was required to believe it, [00:11:30] Speaker 01: and I don't think it was, then the district court should have disregarded it. [00:11:34] Speaker 01: And by the way, here's why the jury wasn't required to believe his testimony that he always skip fired rounds. [00:11:39] Speaker 01: When plaintiff's counsel asked, is it part of your training to always skip stinger rounds off the ground, he said, I think it's dependent on the situation, and it's a possibility we could do it. [00:11:49] Speaker 01: So his own testimony was a little self-contradictory. [00:11:52] Speaker 01: And the jury, after Johnston lost a trial and brought a motion for judgment as a matter of law, [00:12:00] Speaker 01: The standard is that the district court should have believed the testimony that favors McCray. [00:12:07] Speaker 01: The testimony that favors McCray is that he skipped fired round, couldn't have it in the eye, and that dependent on the situation, he was sometimes trained to direct fire the round. [00:12:17] Speaker 01: And believing that testimony, Johnson is not entitled to qualified immunity under Nelson, in which the facts were very similar to here. [00:12:27] Speaker 04: You also brought a state court cause of action for negligence. [00:12:34] Speaker 01: That's right, Your Honor. [00:12:34] Speaker 04: You want to address that? [00:12:35] Speaker 01: Yes, absolutely. [00:12:37] Speaker 01: So this is a persistent error in the District of Oregon's jurisprudence. [00:12:41] Speaker 01: Excuse me. [00:12:45] Speaker 01: And it's idiosyncratic to the district, other districts. [00:12:47] Speaker 01: And there are opinions from this court from California talking about negligence and Fourth Amendment claims coexisting. [00:12:52] Speaker 01: And it's sort of not even a thing. [00:12:55] Speaker 01: But in the District of Oregon, they often preclude the two claims going together to the jury on the notion that the two are always conflicting. [00:13:05] Speaker 01: And that's not true. [00:13:06] Speaker 01: What the Fourth Amendment requires is a volitional act. [00:13:09] Speaker 01: It doesn't require intent as to the target hit. [00:13:11] Speaker 01: That's what this court said in Nelson. [00:13:12] Speaker 01: It's also what the Supreme Court said in Broward. [00:13:15] Speaker 01: And volitional discharge is fully compatible with negligence as to the target. [00:13:20] Speaker 01: And there are many negligent discharge of a firearm cases that involve a volitional discharge. [00:13:24] Speaker 01: It's not someone tripping and falling and squeezing the trigger. [00:13:27] Speaker 01: It's someone who meant to pull the trigger, but was negligent as to where that round went. [00:13:31] Speaker 01: And that's a negligence claim. [00:13:33] Speaker 01: And in fact, that's exactly the theory that we say that the jury found that Johnston, that's exactly the factual theory that I think that the jury believed both for the Fourth Amendment claim and if the negligence claim. [00:13:47] Speaker 04: But they didn't get that claim because it was precluded. [00:13:50] Speaker 01: That's right, sorry, for the Fourth Amendment claim. [00:13:52] Speaker 01: And they would have for the negligence claim if it had been before them. [00:13:54] Speaker 01: So I think that theory. [00:13:55] Speaker 02: If you could back up to, as Judge Edger said, this claim didn't get to the jury. [00:13:58] Speaker 01: Yes. [00:13:58] Speaker 02: So at the time the judge ruled on the state negligence claim, what evidence in the record was there to suggest that the shooting was negligent as opposed to intentional? [00:14:08] Speaker 01: To be honest, Your Honor, I'm not sure what the summary judgment record was. [00:14:12] Speaker 02: So this was a weird procedural posture because the... There wasn't evidence indicating this is anything other than intentional. [00:14:18] Speaker 02: It seems like the judge was between a rock and a hard place here. [00:14:21] Speaker 01: So no, that's not quite right. [00:14:22] Speaker 01: Trial counsel did put forward the theory of, I'll just quote, so he intended the act, but perhaps he was negligent in the consequence of where that sting around went. [00:14:31] Speaker 02: Where was that statement made? [00:14:33] Speaker 01: That is the supplemental excerpts of record pages 9 to 10. [00:14:37] Speaker 02: But isn't that argument from counsel? [00:14:39] Speaker 01: It is, your honor. [00:14:40] Speaker 02: So what evidence was there? [00:14:42] Speaker 01: It's the evidence in the summary judgment record, because this was before trial. [00:14:46] Speaker 02: That's what I'm asking, counsel. [00:14:47] Speaker 02: I fully appreciate Judge Ezra's explained that to us. [00:14:49] Speaker 02: It was at the summary judgment level. [00:14:51] Speaker 02: That's what I'm trying to follow up on. [00:14:53] Speaker 02: What's your response? [00:14:54] Speaker 01: I don't know the summary judgment record, Your Honor. [00:14:56] Speaker 01: But I will say Judge McShane, who had the case before Judge Emmerich did, allowed the negligence claim to proceed. [00:15:04] Speaker 01: So there was a ruling that there was enough evidence at the summary judgment stage. [00:15:07] Speaker 01: And then at the motion to eliminate stage, it was dismissed. [00:15:11] Speaker 04: That's where I was somewhat, because I saw that at one point, [00:15:16] Speaker 04: the court, a previous judge, had said, you can try this. [00:15:21] Speaker 04: And then it transferred. [00:15:22] Speaker 04: And then the second judge, the judge who's on appeal today, said no. [00:15:28] Speaker 01: That's exactly right, Your Honor. [00:15:30] Speaker 01: And that's a procedural irregularity. [00:15:33] Speaker 01: I'm not sure if there's case law about how that should shake up. [00:15:35] Speaker 00: But as a practical matter, how do you envision this case going forward? [00:15:40] Speaker 00: You want the Fourth Amendment claims sent back, but would you then try the negligence case as well? [00:15:45] Speaker 00: Because given the evidence that came out at trial, they're potentially conflicting. [00:15:53] Speaker 01: So I think under the factual theory that the district court, that we're saying the district court should have believed after trial that he intentionally fired, but he was negligent. [00:16:02] Speaker 01: He didn't care. [00:16:02] Speaker 01: He didn't have any care about where he was shooting. [00:16:05] Speaker 01: He was shooting directly into the crowd. [00:16:07] Speaker 01: That theory is compatible with both the Fourth Amendment and the negligence theory. [00:16:10] Speaker 01: As a practical matter, if this court reverses unqualified immunity, I'm not sure we would go to trial on negligence. [00:16:16] Speaker 01: I mean, I think that's a question for trial counsel. [00:16:18] Speaker 01: But separately from that, I think it would be well for the court to rectify this error in the District of Oregon's jurisprudence. [00:16:27] Speaker 02: Did you want to save any time? [00:16:28] Speaker 01: I do. [00:16:29] Speaker 01: Thank you very much. [00:16:29] Speaker 02: You'll have a minute when you come back. [00:16:36] Speaker 03: Morning. [00:16:37] Speaker 03: Thank you, Your Honors. [00:16:38] Speaker 03: Aaron Heisel on behalf of the defendants. [00:16:40] Speaker 03: May it please the court, counsel. [00:16:43] Speaker 03: I think I want to deviate from my prepared remarks and jump right into the procedural irregularity that there have been several questions on. [00:16:52] Speaker 03: And some procedural history, I think, will inform both the questions we have on QI as well as the questions we have on negligence. [00:17:03] Speaker 03: The First Amendment complaint remained the operative complaint through trial. [00:17:11] Speaker 03: I feel, I think the best, I was one of the trial attorneys. [00:17:16] Speaker 03: I feel I think the best adjective is like sandbagged by this, oh well then he direct fired at the heads of other protesters theory that they're now trying to champion as their path to victory here. [00:17:30] Speaker 03: Because it wasn't ever part of the case. [00:17:33] Speaker 03: It was never part of the case. [00:17:35] Speaker 03: So the questions that have been raised about the posture and the position that the district court judge was put in, [00:17:41] Speaker 03: was exactly because of that. [00:17:43] Speaker 02: Here's the difficulty I have, because I'm concerned, too, I think that plaintiffs did change their theory. [00:17:48] Speaker 02: I appreciate that. [00:17:50] Speaker 02: The qualified immunity was part of the case, and it was going to be part of the case. [00:17:53] Speaker 02: And there's one case, right? [00:17:56] Speaker 02: It's the Davis case, Nelson versus Davis, that was going to, I think, most closely align. [00:18:01] Speaker 02: Correct. [00:18:02] Speaker 02: And I am only one of three judges up here, but this is my view of it. [00:18:04] Speaker 02: I tried to put myself back. [00:18:05] Speaker 02: And how do we get here? [00:18:07] Speaker 02: This is a case of how do we get here? [00:18:08] Speaker 02: And it seems to me that had to be coming. [00:18:11] Speaker 02: And so there are a couple of ways that might be distinguished. [00:18:14] Speaker 02: But the big obvious way is if the officer was firing a, what do you call it, a skip [00:18:19] Speaker 02: shot, a skip round, if he did that. [00:18:23] Speaker 02: And yet that doesn't appear on the special verdict form. [00:18:26] Speaker 02: Did the defense request that question for the special verdict form? [00:18:30] Speaker 03: There was quite a bit of colloquy between the court and the council, conferral, all of that around what those special verdict form questions were. [00:18:38] Speaker 03: and the question directly from the court to counsel as we're preparing both of the pre-trial conference and then those first days of trial as we were still fussing about whether or not this question was going to make it on the trial on the verdict form was are you Mr. Bragg going to be arguing that she was targeted [00:19:01] Speaker 03: Yes, that is the theory. [00:19:03] Speaker 02: But Counselor, you're not answering my question because you're representing the other guy, right? [00:19:07] Speaker 02: The defendants had an interest in having this case distinguished from Nelson, right? [00:19:14] Speaker 02: And so to the extent you're talking about sandbagging and fair's fair, [00:19:18] Speaker 02: 2020 hindsight is also so perfect right I get that because that's what we do for a living and I so forgive me but but there was one case that had to be distinguished and it's a case with which you know for for for your client that was an affirmative defense you bore the burden of [00:19:32] Speaker 03: Yeah, but we're still crafting the questions for the jury based on what we understand the evidence and the theories to be. [00:19:39] Speaker 00: I don't understand your question. [00:19:41] Speaker 00: Let me try again because I think I share the same concern that Judge Christian just asked. [00:19:48] Speaker 00: The bottom line is these special findings I think created now some confusion. [00:19:54] Speaker 00: Inferences have to be reached. [00:19:56] Speaker 00: They get the benefit of that. [00:19:58] Speaker 00: Did you stipulate to these factual findings, or did you ask for some alternative factual findings to be given and were denied by the district court? [00:20:07] Speaker 03: I think what was on the verdict form was pretty close to what was agreed upon by the parties by the time they got there, yes. [00:20:17] Speaker 03: Which then turns to where we end up to fill that void. [00:20:22] Speaker 03: And their posture is that we have to get rid of anything that benefits the moving party here, us. [00:20:33] Speaker 03: But I want to be clear about a couple things here. [00:20:36] Speaker 03: This is an interesting 50-B motion, because we're not trying to overturn the jury's findings. [00:20:44] Speaker 03: Both sides are trying to figure out what fills the void. [00:20:48] Speaker 02: It's the gap between the findings. [00:20:50] Speaker 02: Correct. [00:20:51] Speaker 02: So the standard from Reeves, the trial court must disregard all evidence favorable to the moving party that the jury was not required to believe. [00:21:03] Speaker 03: And that gets to, you're in a summary judgment posture in terms of viewing the evidence. [00:21:08] Speaker 03: You just have a more complete record than declarations and the things of that nature. [00:21:12] Speaker 03: And Reeves is clear, as well as the evidence supporting the moving party that is uncontradicted or unimpeached. [00:21:20] Speaker 03: So if you'll indulge me, I'll give you a few of those things that. [00:21:23] Speaker 02: OK. [00:21:25] Speaker 03: The videos. [00:21:27] Speaker 02: The videos aren't terribly helpful. [00:21:28] Speaker 02: I've watched every one of them. [00:21:29] Speaker 03: Exhibit 110 and 201 at 211. [00:21:33] Speaker 03: Their theory now that they try to fill the void that we're calling it that they fill the void with is that Officer Johnston must have instead targeted the heads of other protesters. [00:21:45] Speaker 02: I appreciate that there are problems with his argument, but here's the deal. [00:21:50] Speaker 02: The jury found that excessive force was used, and you're just stuck with that, versus of today. [00:21:55] Speaker 02: And we don't know why. [00:21:56] Speaker 02: And take it from us, given what we do for a living, it is not unusual for us to not know how a jury got to where they got to. [00:22:04] Speaker 02: Sure. [00:22:05] Speaker 02: They could have decided that any force, any use of that, what's the munition called? [00:22:11] Speaker 02: Stinger. [00:22:12] Speaker 02: Forgive me. [00:22:12] Speaker 02: That any use of stinger rounds under that circumstance given that video was excessive. [00:22:17] Speaker 02: We don't know. [00:22:19] Speaker 03: We don't know. [00:22:20] Speaker 03: And so like counsel here is arguing, there's only the two voids. [00:22:24] Speaker 03: There's an errant round, which was actually presented at trial and argued at trial and all of those things, or their new theory now, post trial, which is that he targeted the heads of some other protester. [00:22:39] Speaker 03: We were not even on notice to put that on the verdict form, because that was never part of this case. [00:22:45] Speaker 02: Your claim was the claim for qualified immunity, sir. [00:22:48] Speaker 02: That's what we're trying to get at. [00:22:50] Speaker 03: Correct. [00:22:50] Speaker 03: And based on what the first amended complaint, that he intentionally targeted her. [00:22:56] Speaker 03: Then we go to the summary judgment. [00:22:58] Speaker 03: Officer Johnston targeted her. [00:23:00] Speaker 03: We go to pretrial arguments. [00:23:02] Speaker 03: He targeted her. [00:23:04] Speaker 03: All of those things. [00:23:05] Speaker 03: This would be distinguishable factually from Nelson if he does not target her. [00:23:10] Speaker 03: And we have a different type of munition altogether that is only used in two ways, skip fired or targeted. [00:23:18] Speaker 03: Targeting other people was never part of this case. [00:23:22] Speaker 03: It was never anything. [00:23:24] Speaker 02: But it seems to be your position that you were going to win on targeting. [00:23:29] Speaker 02: You did. [00:23:31] Speaker 02: And that that necessarily means the jury that your client was entitled to qualified immunity because there was a skip fired shot. [00:23:41] Speaker 02: What if the jury decided that that was excessive force under these circumstances, that the use of skip fire was excessive force? [00:23:46] Speaker 03: We're not challenging that. [00:23:48] Speaker 03: We accept that portion of it because he would still be entitled to qualified immunity under Nelson. [00:23:54] Speaker 03: That's why we're here. [00:23:56] Speaker 02: No, no, no, no, no. [00:23:57] Speaker 02: You can't accept something the jury didn't find. [00:23:59] Speaker 02: You don't have that finding. [00:24:01] Speaker 02: You don't have a finding that he skip fired. [00:24:03] Speaker 03: Right, but just as your previous question, the excessive force doesn't illuminate which one of those two possibilities. [00:24:11] Speaker 03: That's why I was going to go through my list of evidence that does illuminate, that's uncontradicted, that would survive any of these other challenges, even if you get into all of those other things. [00:24:21] Speaker 00: Could the jury have thought that he direct fired without specifically targeting her? [00:24:26] Speaker 00: That would be consistent with both findings of excessive use of force and not targeting her directly. [00:24:32] Speaker 03: But inconsistent with the record. [00:24:35] Speaker 00: Well, that's why I asked counsel about the evidence from Officer Johnstone himself, saying that if he had skip fired, it would have been impossible for that round to hit her in the eye, just given the way that these stingers work. [00:24:49] Speaker 03: But as to everyone that talked about those capabilities of this round, they're all talking about the unevenness or lack of unevenness of the surface. [00:24:58] Speaker 03: Even as to the quote from Officer Johnston, the very next things out of his mouth there, I don't even like shooting these in training in gravel because it'll kick up rocks. [00:25:07] Speaker 03: And it will do things. [00:25:09] Speaker 00: Did your expert testify or any officer testify that skip firing would result in an errant shot that could have hit her in the eye? [00:25:19] Speaker 03: I think their expert is the closest testimony to that, saying that these are uncontrolled. [00:25:24] Speaker 03: Everybody agrees with that. [00:25:27] Speaker 03: You have 18 rounds coming out of the muzzle. [00:25:29] Speaker 03: You're not going to be able to control them. [00:25:31] Speaker 03: They're going to go in the general direction that you fire, but they're going to spread. [00:25:34] Speaker 03: All of that is uncontradicted. [00:25:36] Speaker 03: So then it just becomes, is there any evidence in the record to support that he direct fired at other people's heads? [00:25:43] Speaker 03: And that's why an errant round hitter in the eye, and there is not. [00:25:47] Speaker 02: there is well except his testimony that if he had shot down it couldn't have hitter so that leaves the possibility and just be laboring the point but you seem to be and I promise we're gonna get out of the way and let you list your evidence for us but you seem to be arguing [00:26:01] Speaker 02: Maybe you could anticipate this in your presentation, that given this evidence, the jury should have found or had to find. [00:26:09] Speaker 02: And I just don't see that they had to make that finding. [00:26:11] Speaker 02: That's my hang up. [00:26:12] Speaker 02: But I'm going to listen carefully. [00:26:13] Speaker 03: Sure. [00:26:14] Speaker 03: So then their expert is also asked, hey, if this was fired directly, [00:26:22] Speaker 03: Wouldn't you expect to see other people react in the videos? [00:26:26] Speaker 03: Yes. [00:26:26] Speaker 03: Did you see that? [00:26:28] Speaker 03: No. [00:26:28] Speaker 03: That's uncontradicted. [00:26:30] Speaker 03: We're entitled to the inferences that come from that evidence. [00:26:34] Speaker 03: the same expert. [00:26:36] Speaker 03: He is testifying about all the unpredictability about it. [00:26:39] Speaker 03: All I want to highlight there is that every time you see that evidence in the record, look to the context. [00:26:44] Speaker 00: They're all talking about how, with the surface, the Salem officers... But I think at some point, you've got to tackle Officer Johnstone's testimony that it was impossible for that round to hit her in the eye had he skip fired. [00:26:57] Speaker 00: You've got to confront that head on. [00:26:59] Speaker 00: That's the best piece of evidence they have. [00:27:01] Speaker 03: That is the best piece of evidence they have. [00:27:03] Speaker 03: And he's saying, I've never used it in the field. [00:27:05] Speaker 03: I've only used it in training. [00:27:07] Speaker 02: And this is my training. [00:27:07] Speaker 02: But they don't have to believe him. [00:27:10] Speaker 02: What's that? [00:27:11] Speaker 02: They didn't have to believe him. [00:27:12] Speaker 02: He also said that he didn't fire the second shot at all. [00:27:14] Speaker 02: But someone else must have shot her. [00:27:16] Speaker 03: But if the rest of the record doesn't support any of that other folks were targeted in the head, I don't think they're entitled to fill the void with something that was not argued or evidence presented of. [00:27:31] Speaker 03: There was no evidence of that presented either. [00:27:34] Speaker 03: So then you have the record the district court had, the arguments the district court had, and it also includes Syvon Adams at summary judgment. [00:27:44] Speaker 03: This is the other person standing next to plaintiff that plaintiff is arguing at summary judgment was the target. [00:27:51] Speaker 03: Plaintiff and Syvon Adams were the target of the round that hit plaintiff. [00:27:56] Speaker 03: She is hit in the calf and the shin. [00:27:59] Speaker 03: That's at ER 108 and ER 133. [00:28:02] Speaker 03: That's uncontradicted. [00:28:05] Speaker 03: She says it's after the smoke goes. [00:28:06] Speaker 03: So if you can compare that to the videos, that has to be the round that hits Ms. [00:28:11] Speaker 03: McCray. [00:28:12] Speaker 03: And that's after. [00:28:12] Speaker 03: Uncontradicted. [00:28:14] Speaker 03: We're entitled to the inferences that flow from that. [00:28:16] Speaker 03: Uncontradicted evidence. [00:28:17] Speaker 02: What inferences do you draw from that? [00:28:19] Speaker 03: She's hit in the shin, and she's standing right next to the plaintiff, that he fired it in a skip fire capacity. [00:28:27] Speaker 02: Even though he says it couldn't have bounced that high. [00:28:29] Speaker 02: Yeah. [00:28:29] Speaker 02: And the other officer said it couldn't have bounced that high. [00:28:32] Speaker 03: Yes, because all of that in the context of the irregular surfaces. [00:28:35] Speaker 03: For example, I mean, the person standing right next to the plaintiff is picking up the CS canister at the time that round goes off that the jury determined hit Ms. [00:28:45] Speaker 03: McCray. [00:28:46] Speaker 03: It could have hit the metal canister in the road. [00:28:50] Speaker 03: It could have hit another rock in the road. [00:28:52] Speaker 03: Everybody's saying in a sterile environment, they would not expect it to bounce that high, but it doesn't mean that there can't be some irregularity. [00:29:00] Speaker 03: And I'm not arguing that Officer Johnston's testimony is to be ignored by both sides. [00:29:07] Speaker 03: I'm saying that the overall record [00:29:10] Speaker 03: the district court did not err in any manner in finding that the new theory presented after trial was not supported and the one that was argued. [00:29:21] Speaker 02: But after trial, who had the burden? [00:29:23] Speaker 03: We did. [00:29:24] Speaker 02: Right. [00:29:26] Speaker 03: So can I keep going with my burden? [00:29:27] Speaker 02: You can, but I'm just trying to give you every possible opportunity. [00:29:30] Speaker 02: You're not grappling with the problem. [00:29:32] Speaker 02: At least two of the three judges have. [00:29:35] Speaker 03: Which is just Officer Johnston's testimony. [00:29:38] Speaker 03: And I think taking it as a whole, it's not problematic for us at all. [00:29:43] Speaker 03: I really don't. [00:29:44] Speaker 03: The videos are so clear that nobody else is shot in the face. [00:29:48] Speaker 03: There's no one else to even be hit in the face. [00:29:50] Speaker 03: There was no testimony of anybody else being hit in the face. [00:29:54] Speaker 03: And their theory that they're filling the void is he direct fired 18 rubber pellets into a crowd at face height. [00:30:02] Speaker 03: All of that evidence would have to exist. [00:30:04] Speaker 00: Did during closing, did council argue it as direct fired and using specifically that term instead of targeting the whole focus was on targeting much less precise terminology than now the direct firing. [00:30:19] Speaker 03: It was all targeting. [00:30:20] Speaker 03: It was my memory of the closing arguments. [00:30:22] Speaker 02: There was a very specific argument, I think, made by the plaintiff that he targeted her because of her race. [00:30:28] Speaker 02: There was an argument that he may have targeted her because she was wearing red. [00:30:31] Speaker 02: Anyway, the jury didn't buy that. [00:30:35] Speaker 02: They decided she was not targeted. [00:30:37] Speaker 02: But that's quite different to Judge Wynn's point than saying that the officer didn't direct fire at the crowd. [00:30:44] Speaker 03: hindsight's always perfect, but it feels so unjust to say, well, you didn't ask the question of all of their pre-trial filings or I'm going to be arguing that she was targeted. [00:31:00] Speaker 02: Did your pre-trial filings argue qualified immunity? [00:31:03] Speaker 03: Yes. [00:31:05] Speaker 03: My transition back to this more evidence. [00:31:08] Speaker 03: I'd really like There was also prudent she was she testified that she was standing in the crowd right by miss McCrae when miss McCrae was hit standing right there Not hit did not see anybody else hit Miss Jackson standing in the crowd looking quote looking straightforward at the police and [00:31:28] Speaker 03: Not hit, no testimony, seeing anybody else hit. [00:31:31] Speaker 03: That's at 313, 318. [00:31:31] Speaker 03: Ms. [00:31:33] Speaker 03: Pruden is at 297 and 299. [00:31:37] Speaker 03: There would be actual consequences to what they're trying to fill the void with, and none of that evidence is present. [00:31:46] Speaker 04: Your argument is that because somebody else wasn't hit, she wasn't hit? [00:31:50] Speaker 03: No, Your Honor. [00:31:52] Speaker 04: I'm having a hard time understanding why, if somebody's standing next to her and isn't hit, that's relevant. [00:31:58] Speaker 03: Because of the way this operates, the Stinger round would operate where there would be 18 small projectiles all coming out at the same time and going in the general direction of where that was. [00:32:10] Speaker 04: Well, maybe he fired high and one of the pellets went low. [00:32:16] Speaker 04: That happens. [00:32:20] Speaker 04: Right. [00:32:20] Speaker 04: I was a military officer. [00:32:22] Speaker 04: I'm familiar with how rounds fly. [00:32:27] Speaker 04: I know what a shotgun is. [00:32:29] Speaker 04: I mean, somebody shoots, you know, the vast majority of them can go over somebody's head, but all you need is one. [00:32:38] Speaker 03: Right, and I think that's going beyond Reeves, I guess is my point. [00:32:43] Speaker 04: Well, I don't know, you know, here's the problem for me. [00:32:48] Speaker 04: So I've been a district judge for a very long time, three and a half decades plus. [00:32:54] Speaker 04: And I can't even begin to count the number of jury verdicts. [00:33:02] Speaker 04: And I can't even begin to count the number of jury verdicts that I might have thought should go a different way. [00:33:07] Speaker 04: The test for overturning a jury verdict [00:33:14] Speaker 04: is incredibly high, incredibly high in this circuit and virtually every circuit. [00:33:22] Speaker 04: So where there's a lot of conflicting facts and you've got even a reach, even a reach of facts that might support the verdict, does the district judge have the right to step in and say, you know, I think that's a reach. [00:33:45] Speaker 04: I'm going to rule the other way. [00:33:47] Speaker 03: I don't know exactly what you're using the term reach for, but that's where I'm thinking you can't fill the void. [00:33:55] Speaker 03: The judge cannot fill the void. [00:33:58] Speaker 04: Well, the jury found that he fired the weapon. [00:34:00] Speaker 03: Correct. [00:34:02] Speaker 04: And we know she got hit. [00:34:05] Speaker 03: Correct. [00:34:06] Speaker 04: I don't know where the void is. [00:34:08] Speaker 03: The void is that he did so in a manner that was targeting protesters' heads. [00:34:15] Speaker 03: That's the void that is being filled with negative inference. [00:34:20] Speaker 04: He says one thing, and there is some evidence otherwise. [00:34:32] Speaker 04: I, it just seems that there's a lot of conflict here. [00:34:36] Speaker 04: I couldn't agree with you more. [00:34:38] Speaker 04: And maybe if I was the district judge sitting, I would have disagreed with the verdict. [00:34:43] Speaker 04: But that's not my, that wouldn't be my [00:34:47] Speaker 03: But it comes back to the position it put both us and the district judge in to say the void that theoretically you're trying to fill it with. [00:34:57] Speaker 03: He shot really high and there was just one low that hit her. [00:35:01] Speaker 03: We weren't even on notice enough to cross-examine witnesses on that type of theory. [00:35:06] Speaker 04: What did he say he did? [00:35:07] Speaker 04: You tell me again. [00:35:07] Speaker 04: What did he say he did? [00:35:10] Speaker 03: Officer Johnston? [00:35:10] Speaker 03: Yeah. [00:35:11] Speaker 03: He said he did not believe he fired the second shot, which would have been the shot that hit McCray. [00:35:16] Speaker 04: Right. [00:35:16] Speaker 04: But the jury found otherwise. [00:35:18] Speaker 03: Correct. [00:35:19] Speaker 04: There you are. [00:35:20] Speaker 03: Your Honor, with any of the remaining time over time already, there was. [00:35:28] Speaker 02: You're about almost four minutes over time. [00:35:30] Speaker 02: I'll ask you to wrap up. [00:35:31] Speaker 03: Thank you. [00:35:31] Speaker 03: I was just going to ask if there were any questions on the negligence piece of things. [00:35:35] Speaker 02: Thank you. [00:35:37] Speaker 02: Thank you for your patience with our questions, Council. [00:36:00] Speaker 01: I'll see how much of this I can get through in 60 seconds. [00:36:03] Speaker 01: As far as the idea that we were sandbagging defense or that we're presenting a new theory and that's unjust, the defense theory that he skip fired the round is also new. [00:36:13] Speaker 01: Both theories are new in some sense. [00:36:15] Speaker 01: The defense's theory was he didn't fire around at all. [00:36:17] Speaker 01: Something came from the crowd and hit her. [00:36:19] Speaker 01: So I don't think there's any injustice in saying the district court has to pick among two things that are not [00:36:25] Speaker 01: exactly what was argued below. [00:36:28] Speaker 01: But on top of that, trial counsel did argue the firing without aiming theory. [00:36:34] Speaker 01: I mean, those are two different things, right? [00:36:35] Speaker 01: There's he fired into the crowd directly, and then there's he was aiming at McCray. [00:36:40] Speaker 01: And the second thing is a mental state piece that the jury rejected, rejected that he had the mental state that he was targeting McCray. [00:36:47] Speaker 01: But it agreed that he hit her. [00:36:49] Speaker 01: And trial counsel did argue, with 12 seconds left, I'll say, at page 801 of VR4, [00:36:55] Speaker 01: Based off the injuries, it appears Officer Johnson directly fired his 40-millimeter gun loaded with approximately 18 rubber bullets traveling at over 200 miles an hour into the crowd. [00:37:05] Speaker 01: Directly fired his gun into the crowd and at McCracken. [00:37:07] Speaker 02: Is that at closing? [00:37:08] Speaker 01: That was, Your Honor. [00:37:10] Speaker 02: Could you give me the site again? [00:37:12] Speaker 01: That is page 801 of ER 4. [00:37:13] Speaker 02: 4ER801? [00:37:16] Speaker 01: Exactly. [00:37:19] Speaker 01: So trial counsel made the argument that we're making now. [00:37:24] Speaker 01: Meanwhile, defense counsel or defense did not make the argument that Johnson skipfired the round. [00:37:29] Speaker 01: There's no injustice. [00:37:31] Speaker 01: The trial court just has to fill in a gap that the jury didn't have. [00:37:34] Speaker 01: So for all these reasons, the court should reverse and remand for entry of judgment in accordance with the verdict and also reverse the dismissal of the negligence claim. [00:37:42] Speaker 01: Thank you. [00:37:42] Speaker 02: Thank you. [00:37:43] Speaker 02: Thank you both for your advocacy. [00:37:44] Speaker 02: It's a tricky case. [00:37:45] Speaker 02: We'll take it very seriously and rule as soon as we can. [00:37:49] Speaker 02: For now, we'll take it under advisement, please, and move on to the next case on the calendar.