[00:00:00] Speaker 03:
I'm usually a stickler on time, since it's the only one we have.

[00:00:05] Speaker 03:
I may not be as much of a stickler as I always am.

[00:00:08] Speaker 03:
That being said, I always say this, if you've made your points and you're not getting any questions, it's okay to sit down.

[00:00:14] Speaker 03:
There's no extra credit in the Ninth Circuit for using all of your time.

[00:00:18] Speaker 03:
With that, Council will go ahead and take your appearance and you may begin.

[00:00:21] Speaker 04:
Good morning, Your Honor.

[00:00:22] Speaker 04:
May it please the Court, Scott Davenport for the Appellant, Officer William Jones.

[00:00:27] Speaker 04:
I would like to reserve five minutes of that generous time.

[00:00:30] Speaker 04:
You got it.

[00:00:30] Speaker 02:
I would appreciate it, sir, if you would project your voice so I can hear you.

[00:00:34] Speaker 02:
Yes, sir.

[00:00:38] Speaker 04:
The day before Christmas Eve, arguably the busiest shopping day of the year,

[00:00:43] Speaker 04:
The LAPD receives multiple 911 calls about an active shooter and shots fired at a Burlington coat factory in North Hollywood.

[00:00:54] Speaker 04:
When the officers respond to what is probably the most terrifying call they can receive, they find a gruesome scene.

[00:01:01] Speaker 04:
They hear screaming.

[00:01:03] Speaker 04:
There's reports of a victim down, and they see a female victim who's bleeding profusely from the face.

[00:01:15] Speaker 04:
okay thank you she's been beaten so badly that she is almost unrecognizable when they come around the corner of the aisle what they see is Daniel Elena with a dark object in his hands and he's moving believing

[00:01:35] Speaker 04:
That he is armed and in fear for their own safety the safety of the downed victims and the fellow the fellow officers They fire fatally wounding him now these facts are caught on multiple 911 calls on the store video and on the body-worn camera videos making them undisputed pursuant to Scott versus Harris

[00:01:55] Speaker 04:
What we know now and the officers didn't know at the time was that this carnage was not carried out as a result of a gunfire, but rather a vicious attack with a large cable bike lock that Elena Lopez was using to beat his victims.

[00:02:12] Speaker 01:
But you just said that no one was aware of that at the time but on the recording for officer Jones's body cam that recording you hear them saying we have a suspect with a bike lock there's a call about a suspect with a bike lock we have one suspect with a bike lock so I guess I'm unclear on.

[00:02:31] Speaker 01:
Why no one was aware at the time if you can hear that on his body can we actually?

[00:02:36] Speaker 02:
Stop the clock could a clerk come over here and show me how this operates because I can't get it on and I'm not Are you

[00:03:09] Speaker 03:
What should it be on?

[00:03:11] Speaker 03:
Yeah.

[00:03:11] Speaker 03:
Okay.

[00:03:11] Speaker 03:
Test one, two.

[00:03:12] Speaker 03:
Yeah.

[00:03:13] Speaker 02:
All right.

[00:03:13] Speaker 02:
We're in business.

[00:03:14] Speaker 02:
We're in business.

[00:03:14] Speaker 03:
All right.

[00:03:15] Speaker 03:
So we'll give us a second here.

[00:03:18] Speaker 03:
Mr. Price, you'll let us know when he's ready.

[00:03:22] Speaker 03:
All right.

[00:03:23] Speaker 03:
Thanks, Wayne.

[00:03:24] Speaker 03:
And do you want to repeat your question, Judge Cole?

[00:03:27] Speaker 01:
Oh, okay.

[00:03:29] Speaker 03:
I have it.

[00:03:30] Speaker 01:
I've listened to the recording from Officer Jones's, you know, body cam recording and there's nothing saying active shooter.

[00:03:39] Speaker 01:
There is one point where it says shooting occurred, but you have all of these other statements that there is a suspect with a bike lock, we have a suspect with a bike lock, and the bike lock looks visible from the video itself.

[00:03:52] Speaker 04:
There's conflicting reports on what comes in on the 911 calls.

[00:03:56] Speaker 04:
The 911 calls clearly say there's an active shooter, and they say that shots have been fired.

[00:04:02] Speaker 04:
There was other information that was received about a bike lock, that's true.

[00:04:07] Speaker 01:
And why isn't that a dispute of material fact then, whether it was a gun or a bike lock?

[00:04:13] Speaker 01:
As you said, if they're conflicting accounts, then shouldn't this go to the jury?

[00:04:19] Speaker 04:
ultimately the question's going to come down to whether or not the response was reasonable.

[00:04:24] Speaker 04:
He received both sets of information.

[00:04:27] Speaker 04:
And I think your question presupposes that he can only be armed with one or the other.

[00:04:31] Speaker 04:
A lot of times in situations like this, we may have an assailant that has multiple types of weapons on him.

[00:04:37] Speaker 04:
And so the fact that there was one set of phone calls that came in, or there was one set of calls that said there was a bike lock and there were other that said,

[00:04:48] Speaker 04:
that he was armed with a gun and that shots were fired, that doesn't have anything to do with whether or not the response was reasonable.

[00:04:57] Speaker 04:
In fact, I think it would have been unreasonable to assume that there was a bike lock only in light of these other prior calls.

[00:05:06] Speaker 04:
I'm sorry, Your Honor.

[00:05:06] Speaker 03:
Let me jump in here because this is a denial of summary judgment.

[00:05:10] Speaker 04:
Yes, sir.

[00:05:10] Speaker 03:
Where you're seeking an appeal to say qualified immunity, correct?

[00:05:13] Speaker 03:
Yes.

[00:05:14] Speaker 03:
So really,

[00:05:16] Speaker 03:
Our inquiry here is we have to accept all the facts that they want us to accept and then decide whether or not qualified immunity is appropriate.

[00:05:24] Speaker 03:
And that's the only inquiry here, correct?

[00:05:26] Speaker 04:
That's right.

[00:05:26] Speaker 03:
So whether there was a bike lock or a gun, we have to assume everything they say is the case.

[00:05:32] Speaker 03:
So let's frame it that way.

[00:05:34] Speaker 03:
If we assume everything they say is true, why would your clients be entitled to qualified immunity?

[00:05:42] Speaker 04:
This isn't an assumption.

[00:05:44] Speaker 04:
We know that he wasn't armed with a gun.

[00:05:47] Speaker 04:
We know that now.

[00:05:48] Speaker 04:
We didn't know that at the time.

[00:05:50] Speaker 04:
And that's what is undisputed.

[00:05:52] Speaker 04:
So there are no facts for this jury to resolve.

[00:05:57] Speaker 04:
We can almost go forward with a set of stipulated facts here.

[00:06:00] Speaker 03:
But their version is that an officer could have recognized that the bike lock was a bike lock and not a firearm.

[00:06:07] Speaker 03:
The officer could have recognized that the firearm or the bike lock was pointed downward.

[00:06:12] Speaker 03:
and that your client, and that the decedent in this case, excuse me, was literally turning away.

[00:06:17] Speaker 03:
That's their version of the case as I understand it.

[00:06:20] Speaker 03:
If that is the case, which, again, I'm not saying that is the case long term, but for right now that is the case before us.

[00:06:26] Speaker 03:
So if that is the case before us, why would your clients be entitled to qualified immunity under those facts as they see them?

[00:06:34] Speaker 04:
Scott versus Harris.

[00:06:36] Speaker 04:
We have the facts of what the officer saw on the body worn camera.

[00:06:41] Speaker 04:
And had this case come down 15 years ago, we might be having a different conversation.

[00:06:47] Speaker 04:
But today we know what the officer saw and we are to view the facts through that lens of what the undisputed video shows.

[00:06:55] Speaker 03:
So your argument today is that the video is so clear that their version of the facts is not true, correct?

[00:07:03] Speaker 03:
That is one aspect of it.

[00:07:06] Speaker 03:
Well, I think it has to be.

[00:07:07] Speaker 03:
For Scott versus Harris, it's that very narrow situation where there's no way the plaintiff's version of the facts could be correct.

[00:07:14] Speaker 03:
You cited Scott versus Harris.

[00:07:16] Speaker 03:
So your argument then is that their version of the facts, there's no way that they could be correct.

[00:07:20] Speaker 04:
That's right.

[00:07:20] Speaker 04:
And this goes to the first issue, the issue about is this reasonable under the totality under Graham.

[00:07:27] Speaker 04:
If you believe that there's a dispute there, then that's when we kick into qualified immunity.

[00:07:32] Speaker 03:
But this is the denial summary judgment.

[00:07:34] Speaker 03:
So we can't get into whether they've won the case before the district court.

[00:07:40] Speaker 03:
We have very limited jurisdiction here.

[00:07:42] Speaker 03:
It's only to determine

[00:07:44] Speaker 03:
tell me if I'm wrong here.

[00:07:45] Speaker 03:
It's only determined whether there's qualified immunity, because normally there's a denial of summary judgment.

[00:07:49] Speaker 03:
We don't have jurisdiction at all.

[00:07:50] Speaker 03:
So the only way we have jurisdiction in this case is because qualified immunity.

[00:07:54] Speaker 03:
So unless I'm misreading the law here, and I don't think I am, explain to me with other, Scott versus Harris says that all of their facts are wrong, or even under their facts, you win.

[00:08:07] Speaker 03:
It's gotta be one of those two paths.

[00:08:09] Speaker 04:
It's the second one, Your Honor.

[00:08:11] Speaker 04:
And the reason is is that

[00:08:14] Speaker 04:
Well, first of all, before we get into qualified immunity, we have to talk about whether or not there was any clearly established law on this particular issue.

[00:08:23] Speaker 04:
And there is none.

[00:08:24] Speaker 04:
If it were there, I would have found it.

[00:08:26] Speaker 04:
So would they.

[00:08:27] Speaker 02:
Counsel, the first you have to discover whether there was a violation of a constitutional right, then you get to the question about whether it was clearly established.

[00:08:35] Speaker 02:
And I think Judge Owen's question was going to the first element.

[00:08:38] Speaker 04:
Okay, all right.

[00:08:40] Speaker 04:
I thought we were moving on.

[00:08:42] Speaker 04:
I'm happy to deal with it that way.

[00:08:45] Speaker 03:
Just be mindful of where we are in this case, because this is not a jury case right now.

[00:08:49] Speaker 03:
It's this weird jurisdictional hook we have to deal with.

[00:08:53] Speaker 04:
Then we're back to whether or not this is objectively reasonable under the totality of the circumstances.

[00:08:59] Speaker 04:
And that's where we get into the parade of horribles about what happened in the underlying facts.

[00:09:04] Speaker 04:
What this officer saw on the way in, what he observed, and whether or not this was an appropriate proportional response in light of the severity of the crime, which we can all agree on was pretty severe.

[00:09:18] Speaker 04:
This is where the facts are undisputed.

[00:09:20] Speaker 04:
Whether he was beating this woman with a bike lock or whether or not he was armed with a gun as the officers believed at the time, he clearly presented an immediate threat to this victim and to the other officers.

[00:09:36] Speaker 04:
The officer's response in this case has to be reasonable.

[00:09:40] Speaker 04:
It doesn't have to be a perfect response.

[00:09:42] Speaker 04:
He had a matter of seconds to make a decision.

[00:09:44] Speaker 04:
And that is the lens through which we're viewing this.

[00:09:49] Speaker 04:
We're to give a lot of deference to this officer who was forced to make a split-second decision when he comes upon this bloody scene.

[00:09:56] Speaker 04:
And he has to intercede to stop the attack from going forward.

[00:10:01] Speaker 01:
On the video recording, it's clear that other officers on the scene tell Officer Jones to slow down, because he just

[00:10:09] Speaker 01:
gets the rifle out of the car as soon as he parks, immediately goes up to the second floor, doesn't consult with any of the other officers on scene or any of the customers on scene, immediately goes and you hear them saying slow down.

[00:10:24] Speaker 01:
Why if you look at all of these different facts from the video, as well as what the officer conceded himself, right?

[00:10:32] Speaker 01:
He said, I didn't talk to any of the patrons at the store.

[00:10:35] Speaker 01:
I didn't hear any gunshots.

[00:10:38] Speaker 01:
Elena Lopez was not moving towards me at the time I did the shot.

[00:10:41] Speaker 01:
He was shot in the back.

[00:10:42] Speaker 01:
Bullet comes out through the chest.

[00:10:44] Speaker 01:
I guess I still don't understand why there's not a genuine dispute of material fact here.

[00:10:48] Speaker 01:
Even if we take, which we're not supposed to do, but what you're urging us to do is to take Officer Jones' version of the facts.

[00:10:56] Speaker 01:
Even if we look at what he conceded and look at the video, there still seems to be a genuine material factual dispute here.

[00:11:03] Speaker 04:
I think that you might have, there might be a misunderstanding about the argument we're making.

[00:11:08] Speaker 04:
I'm not asking you to take his view of this.

[00:11:11] Speaker 01:
But you're saying the video is so conclusive, right?

[00:11:14] Speaker 01:
That it completely contradicts the plaintiff's version.

[00:11:17] Speaker 01:
But I'm telling you, watching the video, I didn't see it the way you're describing.

[00:11:21] Speaker 01:
I see someone immediately marching up, not consulting with anyone on scene, to get information about the plan, about what's happening.

[00:11:30] Speaker 01:
being told to slow down by his law enforcement colleagues and immediately going up and taking a shot 10 to 15 feet away.

[00:11:41] Speaker 01:
The victim is already 10 to 15 feet away from Mr. Elena Lopez, and he gets shot in the back.

[00:11:48] Speaker 01:
I guess I'm perhaps, tell me, what am I missing from watching that video recording?

[00:11:56] Speaker 04:
Well, I think it's

[00:12:00] Speaker 04:
It's not what you're missing, it's what's being omitted.

[00:12:03] Speaker 04:
When he comes into the store, he hears a report of a victim down, and he makes the split-second decision at that point to intercede to try to protect this victim.

[00:12:20] Speaker 04:
you know, what are his options at that point is to allow the beating to continue and then we, you know, we would have a dead victim.

[00:12:27] Speaker 04:
He made the tactical choice to intervene and he probably saved that victim's life.

[00:12:33] Speaker 04:
So it was, this is a sort of split-second decision that he was called upon to make.

[00:12:39] Speaker 04:
It's a terrifying reality, this case, and

[00:12:45] Speaker 04:
Honest to God, as I mentioned, there's not any case law, fortunately, on this active shooter scenario.

[00:12:53] Speaker 04:
And I'd love to sit here and tell you this is a one-off that we're never gonna see again, but I think that that's unrealistic.

[00:13:00] Speaker 04:
This is probably the type of case that could use to be published.

[00:13:04] Speaker 04:
I see him running out of time here.

[00:13:06] Speaker 04:
Do you want a reserve?

[00:13:08] Speaker 04:
I want a reserve, thank you, Your Honor.

[00:13:10] Speaker 03:
And Mr. Price, if we could go to four minutes for him for rebuttal.

[00:13:20] Speaker 00:
May it please the court?

[00:13:21] Speaker 00:
I'm Ayanna Curry.

[00:13:22] Speaker 00:
I represent plaintiffs.

[00:13:24] Speaker 00:
That's the family of decedent Daniel Elena Lopez.

[00:13:31] Speaker 00:
I think the court has already identified the main issue here is that this court doesn't have jurisdiction.

[00:13:37] Speaker 00:
over this matter.

[00:13:38] Speaker 00:
There are material fact questions as the court has laid out what has discussed.

[00:13:44] Speaker 00:
I'll lay them out for you.

[00:13:46] Speaker 00:
First, we're talking about mistake of fact and whether this was a reasonable mistake of fact.

[00:13:55] Speaker 00:
Officer Jones' justification for the shooting is that

[00:14:00] Speaker 00:
The one, the chaos of the scene, the chaos of all the 911 calls coming in and seeing the victim turning the corner, seeing Mr. Elena Lopez,

[00:14:16] Speaker 00:
raise the gun and take a shooter, like, prepare himself to shoot either him, Mr. Jones, or the victim.

[00:14:26] Speaker 02:
And... May I interrupt you for just a second?

[00:14:29] Speaker 02:
Is there any dispute that one of the LAPD dispatches mentioned that a shooting had occurred?

[00:14:37] Speaker 02:
and that the Office of Jones had heard that information.

[00:14:42] Speaker 00:
We don't dispute that.

[00:14:45] Speaker 02:
So he arrives at the scene knowing or having some information that a shooting had taken place.

[00:14:54] Speaker 02:
So is there any information that he only had a bike lock, he did not have a firearm?

[00:15:05] Speaker 00:
There's a 9-1-1 call and dispatch relays the information that I think a store employee upon hearing glass shatter makes an assumption or thinks that there's a shooting.

[00:15:19] Speaker 02:
Right.

[00:15:19] Speaker 02:
And so to answer my question, there's no dispatch saying, suspect has bike lock only, does not have firearms.

[00:15:26] Speaker 00:
Not that specifically your honor, but there is before as as officer Jones pulls up There is a there is a dispatch from an officer on the scene who is observing now says he sees the suspect no pants Wearing boots with a bike lock this so this here we are with the first actual observation of an officer and you can hear it and the officer Jones claims that

[00:15:54] Speaker 00:
not to have heard that transmission, but as Judge Koh points out, you can hear it when watching his body-worn camera video footage.

[00:16:03] Speaker 01:
But that still doesn't mean that the suspect might not also have a gun.

[00:16:06] Speaker 00:
It doesn't.

[00:16:08] Speaker 00:
Right?

[00:16:08] Speaker 01:
So if it's possible that the suspect has a gun and you see a horribly bloodied victim crawling on the ground with blood all over the floor, why is it not reasonable to

[00:16:22] Speaker 01:
Think that there is an imminent threat here because the man does seem to be darting behind a shelf that could be a position to shoot.

[00:16:32] Speaker 01:
Why is this not a reasonable position?

[00:16:33] Speaker 01:
If you hear shooting occurred, see a bloodied victim.

[00:16:37] Speaker 00:
So we're talking about objective facts and then the inferences that can be drawn from those facts on summary judgment.

[00:16:45] Speaker 00:
The district court did it and this court is supposed to as well draw those inferences, all reasonable inferences in favor of plaintiff.

[00:16:52] Speaker 00:
If there is, which was our argument on summary judgment and which is my argument here.

[00:16:59] Speaker 00:
You can see it both ways.

[00:17:00] Speaker 00:
The objective fact is that another fact, Judge Officer Jones turns off the safety on the rifle upon seeing the victim before he even sees the suspect.

[00:17:18] Speaker 00:
The police chief, the use of force commission, and the police commission all reviewing

[00:17:26] Speaker 00:
The situation said that's out of policy.

[00:17:28] Speaker 00:
That was wrong to do.

[00:17:30] Speaker 00:
That's the objective fact.

[00:17:32] Speaker 01:
Now, the inference I draw from that... Well, some of them said the first shot was within policy, correct?

[00:17:36] Speaker 01:
It was only the second and third shot.

[00:17:38] Speaker 00:
The police... Not the police chief.

[00:17:40] Speaker 00:
Not the police chief.

[00:17:41] Speaker 00:
But the use of force and the police commission, I understood, said the first shot was... I respectfully know there's a multiplicity of opinions on that first shot.

[00:17:52] Speaker 00:
The police chief says,

[00:17:55] Speaker 00:
out of policy.

[00:17:57] Speaker 00:
And then there's the use of force board.

[00:17:59] Speaker 00:
A majority of the board said that first shot was out of policy.

[00:18:05] Speaker 02:
Why should we consider that?

[00:18:06] Speaker 00:
It's all hearsay.

[00:18:10] Speaker 00:
I'm using it for illustrative purposes to show.

[00:18:14] Speaker 00:
Go ahead.

[00:18:18] Speaker 00:
I'm using it for illustrative purposes to make my point about all the questions of fact that can come just from observing what you observed from the video.

[00:18:31] Speaker 00:
I feel like this case is not Scott v. Harris as much as it is Voss v. City of Newport.

[00:18:37] Speaker 00:
If you can draw different inferences from a video, that's a matter that needs to go to the jury.

[00:18:45] Speaker 03:
And I take it, Ms.

[00:18:46] Speaker 03:
Curry, from your perspective, again, I'm trying to frame this as where we are procedurally in this case.

[00:18:51] Speaker 00:
Yes.

[00:18:52] Speaker 03:
Proving this case to a jury is a whole different ballgame than what we're talking about now.

[00:18:55] Speaker 03:
Absolutely.

[00:18:56] Speaker 03:
Agreed.

[00:18:56] Speaker 03:
OK, you've been doing this a long time.

[00:18:58] Speaker 03:
You understand.

[00:18:59] Speaker 00:
Yes.

[00:18:59] Speaker 03:
But even if we were to accept their version of the facts, which we're not supposed to do right now.

[00:19:05] Speaker 00:
Right.

[00:19:06] Speaker 03:
If the officer mistook the lock for a gun, I take it you say you still would prevail at this stage because the gun, the gun which was not a gun.

[00:19:17] Speaker 03:
was pointed down, was not pointed at anybody, and he was turning away from the officers.

[00:19:22] Speaker 03:
So even if we could consider the idea that the lock was in fact a gun when it was not, I take it under the case law, you still would prevail because our case law says you can't shoot somebody when they have a gun pointed downwards, not threatening the officers at the time.

[00:19:37] Speaker 00:
Absolutely.

[00:19:38] Speaker 00:
Being armed in and of itself does not end the inquiry.

[00:19:42] Speaker 00:
That's Lopez.

[00:19:44] Speaker 00:
That's Torres.

[00:19:45] Speaker 00:
There's there's it's a long-standing Authority case law authority from this from this court saying George v. Morris if you have a gun and we know you have a gun and it's trained on the ground and you don't make a harrowing You don't make a threat.

[00:20:00] Speaker 00:
You don't make a harrowing gesture or or

[00:20:08] Speaker 01:
Those cases, Kernel, George, the state of Lopez, you didn't have a bloodied victim crawling on the ground with blood all over the floor.

[00:20:16] Speaker 01:
There was no injured victim in any of those cases, right?

[00:20:19] Speaker 01:
It wasn't quite the same scenario.

[00:20:21] Speaker 01:
There's no violence.

[00:20:24] Speaker 00:
If it's over, so that Smith v. City of Hemet, that was a domestic violence call.

[00:20:30] Speaker 00:
That, you know, that wife got battered, but they were separated.

[00:20:33] Speaker 00:
The victim, the wife, was separated from her husband at the time.

[00:20:38] Speaker 00:
of the uses of force in that case it was beating and police dog and other stuff but the point there is that they were separated if it's a it's horrendous it's awful and it would agree a state of Lopez George Kernel there may have been some yelling but there's no violence in those three cases there's no bloodied victim like

[00:21:00] Speaker 01:
Badly beaten like we have here.

[00:21:02] Speaker 00:
Yes, I'm not naive about the facts that we have going on with with this case it was it was horrendous and even even still there was a constitutional violation that was committed and that's just based on

[00:21:23] Speaker 00:
what everybody can plainly see.

[00:21:25] Speaker 00:
So yes, Judge Owens, to your point, even assuming that the bike lock was a gun, the actions that were taken were not threatening.

[00:21:35] Speaker 00:
Other grand factors to think about.

[00:21:37] Speaker 00:
There was no warning given.

[00:21:39] Speaker 00:
Drop it.

[00:21:41] Speaker 00:
Shoot.

[00:21:42] Speaker 00:
Hey, stop.

[00:21:50] Speaker 00:
He's you know, it's the officer Jones himself Testified there was obvious Mr. Elena Lopez was out of his mind and not well Another factor that can be considered the qualified immunity issue I disagree With that there's no case law our own case one of our own cases banks read we have this issue with

[00:22:19] Speaker 00:
an active shooter situation, even though those words were never uttered.

[00:22:23] Speaker 00:
There, in Banks Reed, the officer, it was a busy, it was also the holiday time, it was also mass transit, BART station, daytime, people everywhere, and the officer there actually heard the gunshots.

[00:22:40] Speaker 00:
And then saw actually and the people in the scene or the other bystanders actually acted as though there was being shots fired and they were hiding behind cars and that and and there in banks read the the gunman Surrendered and he was still shot in the back and that was a clear violation once the and he had just shot somebody once the threat is over and

[00:23:12] Speaker 00:
deadly forces, certainly deadly force is not allowed.

[00:23:18] Speaker 03:
Let me ask this council because this is, now I'm going to jump to the facts a little bit.

[00:23:22] Speaker 03:
I've been saying, no, no, we got to go procedurally, but factually here, this is a very unusual case in the sense that we have a death of someone who committed a terrible act.

[00:23:36] Speaker 03:
I understand your arguments, I understand their arguments.

[00:23:38] Speaker 03:
I'm just curious in terms of

[00:23:40] Speaker 03:
Have you guys tried to mediate this case here in the circuit?

[00:23:45] Speaker 00:
We did.

[00:23:45] Speaker 03:
Okay, and it didn't.

[00:23:46] Speaker 03:
Okay, I just wanted to ask.

[00:23:47] Speaker 03:
It seems like this is the kind of case where both sides have weaknesses to their case.

[00:23:53] Speaker 03:
But okay, continue.

[00:23:55] Speaker 03:
I don't mean to cut it off.

[00:23:56] Speaker 00:
It seems like this is the kind of case you would- And I've told you this before, Mr. Burris is always open to talking.

[00:24:03] Speaker 00:
You know, we are happy to talk when the city is prepared to talk seriously.

[00:24:11] Speaker 00:
And hopefully, once we get past this hurdle, if it's favorable to us.

[00:24:17] Speaker 00:
No, I understand.

[00:24:17] Speaker 03:
You don't need to give up your grand strategy.

[00:24:20] Speaker 03:
I was just kind of curious in this case.

[00:24:22] Speaker 03:
You have tried to mediate this case with the Ninth Circuit's mediators?

[00:24:25] Speaker 00:
Yes, we did.

[00:24:25] Speaker 00:
Okay.

[00:24:30] Speaker 00:
Are there any other questions for me?

[00:24:32] Speaker 03:
Your clock was paused for a long time, so you've actually probably used close to 15 minutes.

[00:24:37] Speaker 03:
But I don't want to cut you off if my colleagues have any questions.

[00:24:39] Speaker 03:
No?

[00:24:40] Speaker 02:
No questions.

[00:24:41] Speaker 00:
Thank you.

[00:24:52] Speaker 04:
I'll make it very brief.

[00:24:55] Speaker 04:
This Spanx Reed case that we're talking about, that's a brand new case that wasn't on the books at the time this decision was made.

[00:25:02] Speaker 04:
So that was not clearly established law at the time of this incident.

[00:25:09] Speaker 04:
So any ruling that's spun out of that is not going to put anybody on notice at the time of this shooting.

[00:25:15] Speaker 04:
I do think that it is important to note that

[00:25:20] Speaker 04:
that this is a terrifying scenario.

[00:25:23] Speaker 04:
I don't know how else to say this.

[00:25:25] Speaker 04:
If this were at an elementary school or a synagogue or a church and you get reports of an active shooter, subsequent reports that say something else, I think it's completely reasonable to assume that there's a gun, particularly when you see blood and a bloodied victim.

[00:25:43] Speaker 04:
I think it would be unreasonable not to.

[00:25:45] Speaker 04:
I can't imagine that if you had 100 people say, there's someone with a gun, and someone calls in and says, wait a minute, I saw a bike lock, and not only a bike lock, that suddenly that becomes a disputed fact that goes to a jury.

[00:26:01] Speaker 04:
The issue here is whether or not the response was reasonable under the totality of these particular facts.

[00:26:07] Speaker 04:
And this was a unique and terrifying situation.

[00:26:12] Speaker 04:
Our position is the officers actions were reasonable under these totality of the circumstances, even if he had the bike lock, which we now know to be true.

[00:26:23] Speaker 04:
But more fundamentally, because there was no prior case law, this is a fantastic case to illustrate the confines of qualified immunity, because there is play in the joints in qualified immunity.

[00:26:39] Speaker 04:
We talk about whether or not the officer's mistake was reasonable.

[00:26:44] Speaker 04:
There's always going to be

[00:26:46] Speaker 04:
an issue that pervades all of these cases here, but we are viewing those through the perspective of the officers at the time and giving deference to their positions and their split-second reactions.

[00:26:58] Speaker 04:
I mean, we've been here 40 minutes and we're still trying to figure out what he had to make it.

[00:27:03] Speaker 01:
Let's talk about Kernel then.

[00:27:06] Speaker 01:
Even if the suspect is armed, which in this case, Mr. Elena Lopez was not armed, but if they're armed and they're shot in the back and they weren't

[00:27:15] Speaker 01:
shooting or in a position to shoot at an officer, we have found a violation.

[00:27:20] Speaker 01:
So why isn't that sufficient here?

[00:27:22] Speaker 04:
Well, I think that the difference is, it was an immediate response to an immediate encounter, both people coming around the aisle at the same time.

[00:27:36] Speaker 04:
And you have someone, maybe he was slipping and falling, maybe he was taking a position.

[00:27:42] Speaker 04:
But he is, he's definitely, there is that furtive movement that the officer sees.

[00:27:47] Speaker 02:
And if you- The furtive movement was away from the officer, not toward the officer.

[00:27:53] Speaker 04:
But it's also, it could have been to seek cover.

[00:27:57] Speaker 04:
We don't know what it was.

[00:27:58] Speaker 04:
What we know is the officers were responding to an active shooting.

[00:28:03] Speaker 04:
And I don't want to minimize that at all.

[00:28:07] Speaker 04:
I know I keep banging this point home, but they were informed that there were shots fired.

[00:28:17] Speaker 04:
And that there was an active shooter and that colors this analysis as to whether or not their their fear was reasonable under these circumstances and whether or not when he saw movement.

[00:28:29] Speaker 04:
He was right to immediately fire.

[00:28:31] Speaker 04:
He did not necessarily have the time to.

[00:28:37] Speaker 04:
You know, when we sit there and we replay these videos at one-tenth speed over and over, which all of us in this room have done, including all you guys, he did not have that luxury to be able to do that.

[00:28:50] Speaker 04:
He had to make an immediate call.

[00:28:52] Speaker 04:
And by the way, if he was wrong, he was dead.

[00:28:54] Speaker 04:
And so were other people.

[00:28:57] Speaker 04:
I see that my time is up.

[00:28:59] Speaker 04:
You've been more than generous.

[00:29:00] Speaker 04:
I think you understand both of our positions.

[00:29:03] Speaker 04:
But I do think this is a...

[00:29:06] Speaker 04:
there should be some authority on this to help guide departments in these sort of situations.

[00:29:13] Speaker 04:
And that's what we would ask.

[00:29:16] Speaker 03:
Thank you so much, counsel.

[00:29:17] Speaker 03:
Thank you both to you.

[00:29:19] Speaker 03:
Thanks to both of you for your briefing and argument in this case.

[00:29:22] Speaker 03:
This matter is submitted and we are done for the day.