[00:00:01] Speaker 02:
Welcome to the court.

[00:00:04] Speaker 02:
We appreciate the advocacy from counsel on both sides of the case.

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I'm Judge Gould.

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I'll be presiding today.

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And I'm delighted to be sitting with my colleague Judge McEwan on my right.

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And Judge Rustani from the Court of International Trade is also sitting with us.

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and is participating remotely.

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Appellant can start off the argument now.

[00:00:41] Speaker 02:
We have two counsel arguing for appellants.

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Who's going to go first?

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Is that Mr. Swain?

[00:01:02] Speaker 01:
Good afternoon.

[00:01:03] Speaker 01:
May it please the court.

[00:01:04] Speaker 02:
I am Tony saying with me as my partner lawn McIntyre We have the honor of representing Riverside County Sheriff's Department sergeant Dan Ponder I get counsel saying I just say this case is set for 20 minutes per side and you're Splitting it with the count counsel for Potter.

[00:01:25] Speaker 02:
So have you decided?

[00:01:28] Speaker 02:
But you you're taking 10 minutes is that right?

[00:01:32] Speaker 01:
Approximately nine your honor, and I would like to reserve two for a bottle if I may okay Yeah, just watch your own time.

[00:01:37] Speaker 02:
Yes, sir and stop before All your time is used up.

[00:01:41] Speaker 01:
Yes, sir.

[00:01:41] Speaker 01:
I will thank you very much May please the court The court should award qualified immunity to Defendant ponder for two reasons the first of which I will address and the second of which my partner miss McIntyre will address first Where as here?

[00:02:02] Speaker 01:
The uncontroverted evidence shows that the sergeant observed the same threat facts that were observed by civilian witnesses, both prior to and during his shots fired.

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His mistake as to the existence of an ongoing deadly threat cannot be unreasonable, and thus he is entitled to qualified immunity.

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And second, whereas here on the uncontroverted evidence produced at trial,

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on the purely legal issue of qualified immunity which was not waived.

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Where there is no clearly established law that existed prior to the incident date and issue in this case, with specifically comparable facts that would have put defendant Ponder on notice as to his potential unconstitutional shooting, he is also entitled to qualified immunity.

[00:02:54] Speaker 02:
Counsel, I have a question for you.

[00:02:55] Speaker 02:
Yes, Your Honor.

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Is it unlawful for a police officer to use deadly force, which here I understood were the last few two shots fired, and to shoot someone in the back if they do not pose a threat to the officer or to the public?

[00:03:21] Speaker 01:
Your honor, it is certainly unlawful for an officer to knowingly do so.

[00:03:26] Speaker 01:
However, the uncontroverted evidence in this case is that Sergeant Ponder did not knowingly shoot at Mr. Nahara's back.

[00:03:33] Speaker 01:
The evidence is actually to the contrary, that all of his six shots were aimed at the front center mass of Mr. Nahara, both when he initially fired and during the ongoing fire.

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And at a certain point during the ongoing fire, Mr. Herr began to blade his body while still presenting the front center mass toward the deputy and still advancing with the bat raised, one shoulder slightly more forward than the other.

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And what's interesting that's important to note in this particular record, it was uncontroverted at trial that defendant Ponder's perception of this threat fact was corroborated by two civilian witnesses.

[00:04:08] Speaker 05:
Well, let me, you keep talking about undisputed and corroborated.

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But there was a lot of dispute here.

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No single of the other witnesses saw the entire event.

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And it then comes down to Mr. Ponder's credibility.

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And there were a number of places in the record where he was impeached.

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So I appreciate your argument.

[00:04:34] Speaker 05:
But in looking at it, now that we've had a trial, it's quite a different picture than we were

[00:04:42] Speaker 05:
in the earlier stages.

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Isn't that true?

[00:04:44] Speaker 01:
Not quite, Your Honor.

[00:04:45] Speaker 01:
The actual evidentiary record will show you that if you look more closely, particularly at record pages... And I have looked very closely.

[00:04:52] Speaker 01:
Thank you, Your Honor.

[00:04:52] Speaker 01:
At record pages 1146 through 47, as to Ms.

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Moreno, and at record pages 1178 through 1180, and as well as 1194 for Mr. Gaspar, that they're both very clear that they do see the entire shots fired.

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They state very clearly that they are able to see it.

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Ms.

[00:05:09] Speaker 01:
Moreno says she's able to see it peripherally,

[00:05:11] Speaker 01:
Mr. Gaspar says that he sees all of the shots that were fired, all the shots that he heard, he says he saw.

[00:05:18] Speaker 01:
And both of those witnesses state very clearly that for all of the shots that they observed, they saw Mr. Nahara facing toward the deputy with the bat raised in a manner that they viewed as threatening to the deputy while Mr. Nahara continued to advance toward the deputy.

[00:05:34] Speaker 05:
So you also have the expert testimony, and you've got the shots that ultimately felled Mr. Nahara were in the back.

[00:05:44] Speaker 05:
I know you keep talking about blading and turning, but these are shots filed directly in the back.

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So how do you square that with your description of what happened?

[00:05:58] Speaker 01:
Absolutely, Your Honor.

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There is a key distinction here that has been lost by plaintiffs and their opposition.

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There is a very big difference between aiming and striking.

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It was uncontroverted that all the shots were aimed at the front and aimed at a time when Mr. DeHara was raising the bat in a manner presented as threatening to the deputy.

[00:06:19] Speaker 01:
There was no witness or forensic evidence to controvert that fact.

[00:06:23] Speaker 01:
Now, while it is certainly true, and there is no dispute that two, at least two of Mr. Sergeant Ponder's shots struck Mr. Nahara in the back, it is also uncontroverted that none of those shots were aimed at his back.

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And the civilian witnesses who were there, none of them saw any shots entered the back.

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They never saw Mr. Nahara fired upon.

[00:06:43] Speaker 05:
You can see it, but the forensic evidence shows it.

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This is true, but there is a distinction, Your Honor, between what was observed at the time and what was learned post incident.

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And that distinction is key here to the issue of reasonable mistake.

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When all of the civilian witnesses make the same factual mistake that Sergeant Ponder made,

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His mistake is per se reasonable.

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The issue here is not reasonableness of force.

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We concede that the jury found excessive force here.

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That's not the issue on appeal.

[00:07:12] Speaker 01:
The issue on appeal is qualified immunity and specifically on this element that my partner will address the clearly established law element.

[00:07:20] Speaker 01:
On this element, whether on all the evidence presented at trial, his mistake as to the existence of an initial deadly threat and an ongoing deadly threat was reasonable.

[00:07:29] Speaker 01:
And when he perceived the same set of threat facts that every other witness to the shooting also saw, according to the record, his mistake has to be reasonable.

[00:07:38] Speaker 01:
That is the core of why he is entitled to qualified immunity on this particular set of facts as presented at the evidence at trial.

[00:07:46] Speaker 05:
Maybe you can help me to square something that was in your brief with the jury instruction.

[00:07:53] Speaker 05:
So I'm looking at your reply brief where

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You clarified something you just said.

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It's not a sufficiency of the evidence.

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We're talking about qualified immunity.

[00:08:02] Speaker 01:
Yes, Your Honor.

[00:08:03] Speaker 05:
But you say in the reply brief that this issue of reasonable mistake was never before the jury.

[00:08:15] Speaker 01:
Correct, Your Honor.

[00:08:16] Speaker 05:
However, when I look at the jury instructions, jury instruction 19 and then subpart 11, it says,

[00:08:25] Speaker 05:
whether a reasonable officer would have or should have actually perceived a mistaken fact.

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So how do you square what the jury was instructed on with your statement that that was never in front of the jury?

[00:08:40] Speaker 01:
We never argued and no evidence was presented as to whether or not Sergeant Ponder was mistaken.

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So while that jury instruction was included in there, we never said or asked the jury to decide the issue of qualified immunity.

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We never

[00:08:52] Speaker 01:
presented any evidence or testimony that he was mistaken at trial.

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Our belief at trial was that his threat perception justified reasonable use of force and that his use of force, deadly force, was reasonable.

[00:09:05] Speaker 05:
But even if you didn't argue it in that structure, the jury is instructed generally to look at all the jury instructions.

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And I don't think that jury instruction was objected to or any effort

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to X that out of the jury's province, was it?

[00:09:24] Speaker 01:
No, Your Honor.

[00:09:24] Speaker 01:
But again, there was no argument or evidence presented on the issue of mistake of fact.

[00:09:29] Speaker 01:
So that issue could not be decided by them.

[00:09:31] Speaker 01:
We didn't present any testimony.

[00:09:33] Speaker 01:
There was no argument in opening, closing, or anybody by either side on the issue of mistake of fact.

[00:09:38] Speaker 01:
This is the first time that we are addressing it.

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Until the appeal, our position was

[00:09:43] Speaker 01:
that this was a reasonable use of force supported by the evidence.

[00:09:47] Speaker 01:
But on appeal, as Your Honour very well knows, we have to defer to the findings of the jury.

[00:09:52] Speaker 01:
The question of whether or not this was a reasonable use of force is not the issue on appeal.

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But for qualified immunity, the standard is somewhat different.

[00:09:59] Speaker 01:
Applying grammar and reasonableness to the facts that were proved at trial

[00:10:03] Speaker 01:
Whether or not this mistake was reasonable is an issue on appeal that was not previously addressed.

[00:10:08] Speaker 01:
And Your Honor, I see that my time is nearly exhausted.

[00:10:11] Speaker 01:
I would just point out that a couple of other interesting facts.

[00:10:14] Speaker 01:
One of the things that plaintiffs point to in their opposition is the issue of timing.

[00:10:19] Speaker 01:
And in their opposition brief, they suggest that there may have been as much as 25 or 30 seconds from the first gunshot to the last gunshot.

[00:10:28] Speaker 01:
This is not supported by the evidence at all and a reasonable inference must be supported by admissible evidence.

[00:10:34] Speaker 01:
The testimony they rely on for this fact is actually contrary to that inference.

[00:10:38] Speaker 01:
The testimony from Mr. Gaspar at page 1194 of the record was he said he was unsure as to how much time passed for the shots, but he estimated not that there was a five-second gap between shots.

[00:10:49] Speaker 01:
That's not what he said at all.

[00:10:50] Speaker 01:
In fact, he makes no such estimate.

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as to how much pause there is between shots.

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What he says is that his estimate from the first shot to the last shot was between five and 15 seconds.

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And again, that is at record pages 1189, 90 and 94.

[00:11:06] Speaker 01:
However, even if we were to assume that is true, even if we were to assume that the amount of time that passed from first gunshot to last gunshot was about 15 seconds, it doesn't change the fact that no evidence was presented at trial by anybody.

[00:11:22] Speaker 01:
that Sergeant Ponder knew that he was firing at a non-threatening person when he fired his shots.

[00:11:28] Speaker 01:
There's no evidence to present that.

[00:11:29] Speaker 01:
In fact, the jury finding of a lack of malice supports the idea that they even believed that he was not deliberately firing at the back, even though it is indisputable that some of those shots, including the two fatal shots, did strike him in the back.

[00:11:42] Speaker 01:
So on the evidence presented at trial, not the speculation, not the argument,

[00:11:46] Speaker 01:
on these facts, Sergeant Ponder's mistake of fact has to be deemed reasonable, given that there is no controverted evidence on the point.

[00:11:54] Speaker 02:
Okay, thank you, counsel.

[00:11:55] Speaker 01:
Thank you, Your Honor.

[00:11:57] Speaker 02:
Your time has expired, but I'll give you one minute for rebuttal, extra time.

[00:12:17] Speaker 04:
Good afternoon, your honors.

[00:12:18] Speaker 04:
Alon McIntyre on behalf of the defendants, County of Riverside and Sergeant Dan Ponder.

[00:12:24] Speaker 04:
I would like to address the qualified immunity analysis that should be applied in this case and also address the issue of waiver that's been raised by the plaintiffs.

[00:12:33] Speaker 04:
On the second prong of qualified immunity that we're addressing here today, the legal question of whether Sergeant Ponder made a reasonable mistake and whether he violated clearly established law was not before the jury.

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Therefore, this is purely a legal question for this court to consider.

[00:12:52] Speaker 04:
We know that the law requires that when looking at prior cases that might constitute clearly established law, the cases must be sufficiently similar in their specific facts to put the officer on notice.

[00:13:05] Speaker 04:
We also know that the cases must put the question beyond debate.

[00:13:10] Speaker 03:
And as I just asked you a question, I thought we already ruled that the law was clearly established.

[00:13:17] Speaker 03:
So how is this still an open question?

[00:13:23] Speaker 04:
If you mean already ruled in terms of the prior appeal?

[00:13:26] Speaker 03:
Yeah, the prior opinion always said that that using is already said that it was the law was clearly established in this area by both the Supreme Court and cases

[00:13:38] Speaker 03:
Cases at the circuit level.

[00:13:41] Speaker 04:
Yes.

[00:13:41] Speaker 03:
So what are we doing here with this issue?

[00:13:44] Speaker 04:
That was ruling was made on a different set of facts that was on a summary judgment set of facts We're now here post trial and we have a different trial record to consider that has supplanted some of the concerns that the court had or some of the facts that the court found that then applied the specific cases to okay, so

[00:14:05] Speaker 03:
Which were the facts that changed in Ponder's favor?

[00:14:10] Speaker 04:
For instance, the fact that in the summary judgment appeal, the fact was disputed whether or not the bat was raised or pointed down.

[00:14:20] Speaker 04:
The trial evidence here clearly established without doubt that the bat was raised in the raised position.

[00:14:27] Speaker 04:
There was also some dispute about that.

[00:14:29] Speaker 05:
There is some dispute about that as well as to the position in the testimony.

[00:14:35] Speaker 04:
Well, all the eyewitnesses and Sergeant Ponder were consistent about whether that the bat at the time, not at the time of the pepper spraying, but at the time of the shooting that the bat was actually raised.

[00:14:48] Speaker 03:
So... He was raised around his shoulder.

[00:14:50] Speaker 03:
Yes.

[00:14:50] Speaker 04:
Right?

[00:14:51] Speaker 04:
Correct, Your Honor.

[00:14:52] Speaker 04:
Yes.

[00:14:52] Speaker 04:
In a position as if you were a batter raising your bat to strike a ball.

[00:14:57] Speaker 04:
So, you know, that's a very significant different legal, factual posture for this appeal.

[00:15:04] Speaker 04:
And it makes the analysis of the case law in terms of whether there were specific facts in similar cases that would put Sergeant Ponder on notice very different here.

[00:15:15] Speaker 04:
And as the Supreme Court in White v. Pauley has stated, the clearly established analysis in an excessive force case requires the court to identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.

[00:15:34] Speaker 04:
So we must have settled law, we must have controlling authority, and we must have a robust consensus of cases in order to find Sergeant Ponder was on notice that his conduct was unconstitutional.

[00:15:47] Speaker 04:
And I'd also like to note that in Casella, the court does talk about and other cases have talked about the fact that this is a very hazy border.

[00:15:55] Speaker 04:
And in cases of doubt, the border between permissible and excessive force must be decided in favor of the officer.

[00:16:03] Speaker 05:
Going back to your original premise that when we decided the initial qualified immunity ruling, we sent it back because there were factual issues that implicated clearly established law.

[00:16:19] Speaker 05:
But when you got to trial, this issue that you're focusing on, whether he posed a threat to the officers, that went to the jury, didn't it?

[00:16:29] Speaker 05:
it did and what's the upshot of that what do we make from that legally that the jury was instructed on this threat issue well again that that comes back to the our position in this appeal is that

[00:16:44] Speaker 04:
The jury's conclusion that the, um, force was excessive or unreasonable is not by, does not control the question of, um, the clearly established law issue because it doesn't control us clearly.

[00:16:57] Speaker 05:
We know it can clearly established law is, and that's not for the jury, but the facts are for the jury.

[00:17:02] Speaker 05:
And in making that determination, they followed this rather extensive jury instructions, which included this threat issue.

[00:17:12] Speaker 05:
So how.

[00:17:16] Speaker 05:
Does the jury instruction interface then with the ultimate determination?

[00:17:23] Speaker 04:
I don't think the jury instruction interfaces at all because there was no evidence presented on the reasonable mistake issue.

[00:17:31] Speaker 04:
And without evidence, the jury would have nothing upon which to base a verdict that took into consideration that particular instruction.

[00:17:39] Speaker 04:
It was not argued, and there was no evidence on the reasonable mistake issue that we are raising here in this appeal.

[00:17:44] Speaker 05:
So of course, the issue I was focusing on was threat.

[00:17:49] Speaker 05:
And I know there's some different views as to whether he posed a threat, depending on what period we're talking about.

[00:17:57] Speaker 05:
And I recognize it's kind of a compressed period.

[00:18:01] Speaker 05:
But it doesn't seem to me that the evidence that he posed no threat is uncontroverted, or that he posed a threat is uncontroverted.

[00:18:12] Speaker 05:
Do you agree with that?

[00:18:14] Speaker 04:
Well, no, I believe that the evidence was uncontroverted in terms of the eyewitness testimony and Sergeant Ponder's testimony and the expert's testimony that Mr. Nahara always posed a threat throughout the encounter from the pepper spray on or at least certainly during the course of the shootings that occurred.

[00:18:36] Speaker 04:
And we've laid out that evidence and that testimony in our briefing.

[00:18:42] Speaker 04:
But here we're really discussing the existence of a reasonable mistake about that threat by Sergeant Ponder and whether he was reasonably mistaken in his view of Mr. Nahara's conduct and his decision to use deadly force to address that.

[00:19:02] Speaker 03:
And everyone who testified on it agreed that there was some threat.

[00:19:07] Speaker 03:
But that doesn't really tell you how imminent the threat is and whether the response to the threat is appropriate or excessive, right?

[00:19:17] Speaker 03:
So it's general statements about, yes, he was a threat.

[00:19:20] Speaker 03:
But it doesn't tell you what kind of threat.

[00:19:22] Speaker 03:
And of course, Sergeant Ponder, the only one who really saw everything,

[00:19:29] Speaker 03:
He could be disbelieved because he was impeached several times.

[00:19:34] Speaker 03:
So I'm not sure that the level of threat that is of concern is a truly undisputed issue.

[00:19:44] Speaker 04:
Well, we have the evidence that's not disputed, that Nahara was facing Sergeant Ponder throughout the encounter.

[00:19:51] Speaker 03:
No, but you're both trying to say that because witnesses said he was a threat, that that makes it undisputed.

[00:19:57] Speaker 03:
But I'm saying threat as a general matter is not the issue.

[00:20:02] Speaker 03:
So I want you to agree with that or don't agree with it.

[00:20:05] Speaker 03:
Just respond to it.

[00:20:07] Speaker 03:
Sure, Your Honor.

[00:20:08] Speaker 04:
I would disagree.

[00:20:11] Speaker 04:
But I think the more important issue here that we have moved on to in terms of this appeal is that given the evidence that was presented at trial,

[00:20:22] Speaker 04:
Sergeant Ponder was not unreasonable in mistakenly believing that Mr. Nahara posed a threat.

[00:20:30] Speaker 04:
And that's based on the cumulative evidence in this case and that was presented, evidence admitted at trial, not facts that have just been alleged or thrown out there without support in the record.

[00:20:42] Speaker 04:
So as a matter of law, a reasonable officer would find it objectively reasonable to use deadly force under these circumstances, even if he was mistaken in his perception that Mr. Nehera posed a threat.

[00:21:00] Speaker 04:
I'd also I'd just like to point out that on getting to whether or not there was clearly established law with specific facts that would apply to this situation.

[00:21:09] Speaker 04:
We have established we have pointed out in our briefing.

[00:21:12] Speaker 04:
In particular, I'd like to point out the Blandford case.

[00:21:15] Speaker 04:
where the suspect was erratically acting and not following commands, carried a sword raised above his head.

[00:21:22] Speaker 04:
And even though he was moving away from the officers, the officers were found to be reasonably mistaken that the suspect was a threat to themselves or to persons who might be in the house or yard.

[00:21:33] Speaker 04:
This is even though the suspect was moving away from them and they shot him in the back and qualified immunity applied in that circumstance.

[00:21:41] Speaker 04:
The court in Blandford held that the deputies had caused to believe Blandford posed a serious danger to themselves and to anyone in the house or yard.

[00:21:49] Speaker 04:
I would posit that those facts are very similar to this case.

[00:21:52] Speaker 04:
In fact, our facts are even stronger that would have allowed Sergeant Ponder to understand that he was, even if reasonably mistaken, that he was entitled to use deadly force.

[00:22:05] Speaker 03:
The case of- Okay, 28-inch sword.

[00:22:07] Speaker 03:
They warned him.

[00:22:11] Speaker 03:
and he raised the sword in the air and made loud growling and roaring noises and continued to advance.

[00:22:20] Speaker 04:
Yes, and in this case, Mr. Nahara held a bat, which has been considered to be a deadly weapon.

[00:22:27] Speaker 04:
He was pepper sprayed twice and told to drop the bat, and he refused to follow that command.

[00:22:34] Speaker 04:
He continued holding the bat in an upright position throughout and in a manner that all the witnesses said was threatening.

[00:22:41] Speaker 04:
And he did not follow any of the commands that Sergeant Ponder made.

[00:22:47] Speaker 04:
So I think the similarities are, just jump off the page.

[00:22:51] Speaker 05:
The similarities or dissimilarities, I think that the judge points out here is that there was no warning that there was going to be deadly force against him.

[00:23:06] Speaker 05:
And there was also no warning that he was advancing at that point.

[00:23:09] Speaker 05:
We have a little bit of

[00:23:11] Speaker 05:
two steps forward, two steps back.

[00:23:13] Speaker 05:
That seems to be in the record.

[00:23:15] Speaker 05:
And also, there was nothing, no affirmative threatening acts that he did.

[00:23:27] Speaker 05:
So it's hard to say,

[00:23:29] Speaker 05:
Blanford is right on point, and therefore he gets qualified immunity.

[00:23:33] Speaker 05:
I think there's quite a few differences there.

[00:23:37] Speaker 05:
So, you know, I think Blanford is instructive, but certainly not definitive, as I read it.

[00:23:44] Speaker 05:
Now, maybe you read it differently.

[00:23:46] Speaker 04:
Thank you, Your Honor.

[00:23:47] Speaker 04:
Well, I do believe that there was a warning in this case in the sense that the officer did not use the specific words, if you don't drop that bat, I'm going to shoot you.

[00:23:56] Speaker 04:
However, the officer repeatedly commanded him to drop the bat.

[00:24:00] Speaker 05:
Well, that's different than saying drop the bat or I'm going to shoot you, or drop the bat, I've got my gun out.

[00:24:06] Speaker 05:
What happens is the gun comes out and then boom, boom, boom, boom, boom, and then he's dead.

[00:24:11] Speaker 04:
Well, he'd already been pepper sprayed twice, so the officer had resorted to less deadly force in order to warn him.

[00:24:18] Speaker 04:
I don't think there could be any clearer warning to Mr. Nahara about the potential consequences of his conduct and failing to follow these commands repeatedly and to continue to hold the bat.

[00:24:29] Speaker 04:
And there's also, in terms of Mr. Nahara advancing, and Your Honor had mentioned the stepping forward and back,

[00:24:36] Speaker 04:
An officer is not required to retreat from the situation, and had Sergeant Ponder taken a couple of steps back or forth, did not change the fact that Mr. Nahara was advancing toward him.

[00:24:50] Speaker 04:
And that directional movement is what's really key here.

[00:24:53] Speaker 04:
I'd also like to, and we've cited some other cases in our briefs that we feel are similar facts that would be sufficiently specific to give Sergeant Ponder notice that he had not engaged in an unconstitutional conduct.

[00:25:09] Speaker 02:
Council, I'm sorry to say you are over your allotted time and unlike former Chief Justice Mingus, they won't stop you in mid-sentence.

[00:25:22] Speaker 02:
But could you try to wrap up your argument?

[00:25:25] Speaker 04:
Thank you, Your Honor.

[00:25:26] Speaker 04:
I appreciate the opportunity.

[00:25:28] Speaker 04:
I wanted to point out, final point, is that plaintiffs have identified no cases that were specifically on point that would have put Sergeant Ponder on notice.

[00:25:39] Speaker 04:
And we've distinguished those cases, particularly in our reply brief that you will see.

[00:25:43] Speaker 04:
I didn't reach the issue of waiver, but we would certainly contend there has been no waiver on this legal issue By failing to allegedly failing to raise it in our rule 50a motion We did raise the underlying facts that was and it was sufficient to preserve the issue for appeal and Dupree versus Younger has made that clear now Thank you your honors.

[00:26:04] Speaker 02:
Thank you counsel and for your planning purpose Pull your time was up.

[00:26:10] Speaker 02:
I'll give you one minute for rebuttal if you want it

[00:26:15] Speaker 05:
So yeah, I think that's what he just reiterated what he said before.

[00:26:18] Speaker 05:
There is one minute for rebuttal for your side.

[00:26:20] Speaker 05:
But that's after.

[00:26:21] Speaker 05:
Right.

[00:26:22] Speaker 05:
We're going to wait and hear from the other side first.

[00:26:25] Speaker 02:
Yeah.

[00:26:27] Speaker 02:
Mayor from Appellee.

[00:26:28] Speaker 02:
And Appellee, we let the opponents go a little bit over their time.

[00:26:34] Speaker 02:
So if you need an extra minute or two, just tell me.

[00:26:38] Speaker 00:
Thank you very much your honor and good afternoon and first and foremost I want to apologize to everyone for being late.

[00:26:44] Speaker 00:
I got the wrong address.

[00:26:47] Speaker 00:
I saw the district courthouse, but it wasn't here, but thank you for waiting for me.

[00:26:52] Speaker 00:
First of all, I think, as has already been discussed, there are multiple factual disputes in this case, which is one of the reasons this particular panel affirmed the lower court's ruling denying summary judgment, denying qualified immunity, and saying on plaintiff's facts the law was clearly established.

[00:27:15] Speaker 00:
As we all know, there's two prongs to the qualified immunity analysis.

[00:27:21] Speaker 00:
On the first prong, it's whether it was unconstitutional.

[00:27:25] Speaker 00:
That has been agreed upon.

[00:27:27] Speaker 00:
by the briefing and by the jury.

[00:27:30] Speaker 00:
So all their arguments that they're making that this was not an unconstitutional use of excessive force is difficult to understand.

[00:27:38] Speaker 00:
Secondly, the point that Judge McGowan made is absolutely correct.

[00:27:43] Speaker 00:
The jury instruction, the model instruction 9.25, had the language in it so that the

[00:27:50] Speaker 00:
The issue of reasonable mistake was before this jury.

[00:27:55] Speaker 00:
And the factor that she referenced was whether a reasonable officer would have or should have accurately perceived a mistaken fact.

[00:28:06] Speaker 05:
Well, I want to stop you there because the argument I heard from both counsel was that, yes, that was in the jury instruction, but there was no testimony or argument on this mistake of fact issue at trial.

[00:28:20] Speaker 05:
How do you respond to that?

[00:28:22] Speaker 00:
Well, I respectfully disagree.

[00:28:24] Speaker 00:
In fact, that was half of their theory of the case.

[00:28:27] Speaker 00:
Half of their theory of the case was, how do we explain these two shots to the back?

[00:28:33] Speaker 00:
The officer and his credibility was in question, as pointed out by the decision of the lower court.

[00:28:40] Speaker 00:
What happened is he gave a statement after this incident where he said, after my first group of shots, I repositioned, I assessed, and I noticed that

[00:28:50] Speaker 00:
Now the decedent was no longer a threat.

[00:28:54] Speaker 00:
That was his original statement.

[00:28:56] Speaker 00:
But what happened is the attorneys and the experts and the officer, and this is in the trial record, all met together and had an all-day meeting before his deposition to come up with a new story.

[00:29:08] Speaker 00:
And their new story was they fired all five shots in one second at his chest.

[00:29:14] Speaker 00:
trying to talk the jury into this blading business.

[00:29:18] Speaker 00:
They called an expert board in who testified about perception reaction time and essentially said the officer was mistaken.

[00:29:26] Speaker 00:
He thought he was shooting in his front and he must have been shooting in his back.

[00:29:31] Speaker 00:
They argued in closing argument the same thing.

[00:29:34] Speaker 00:
So for them to say, we never raised the argument, that was a central part of the entire case.

[00:29:41] Speaker 00:
Moreover, I would suggest that a reasonable mistake of fact is always a question for the jury, always.

[00:29:50] Speaker 00:
Now, maybe where there's a mistake of law in the old days, that was conflated with the second prong of qualifying immunity, whether the law was clearly established.

[00:30:00] Speaker 00:
But a mistake of fact,

[00:30:03] Speaker 00:
From our perspective, there was no mistake, number one.

[00:30:09] Speaker 00:
Number two, if there was a mistake, it was not reasonable.

[00:30:13] Speaker 00:
And now that we're post-jury verdict, we have to give every deference in support of that verdict.

[00:30:20] Speaker 00:
And technically, not consider evidence the jury was not required to believe.

[00:30:28] Speaker 00:
Now, they call this witness gasper.

[00:30:30] Speaker 00:
who said there was a five second, and we cited the trial testimony, at least five seconds between the first volley and the second volley.

[00:30:40] Speaker 00:
The positioning was up to 15 to 20 feet.

[00:30:44] Speaker 00:
He started right next to the sidewalk.

[00:30:46] Speaker 00:
He ended up right next to the sidewalk.

[00:30:48] Speaker 00:
He turned away from him.

[00:30:51] Speaker 00:
And I would submit there's more evidence in the trial record than this panel had on summary judgment.

[00:30:57] Speaker 00:
For example, the medical examiner testified that not only were the shots to the back clearly when his back was to the shooter, but the shot to the back of the arm.

[00:31:07] Speaker 00:
was consistent with being struck with his back to the shooter, because it was in the back of his arm.

[00:31:13] Speaker 00:
And more importantly, his arm would have to be in a down position to get that shot to the back.

[00:31:21] Speaker 00:
So the evidence at trial was there were three shots that struck him when he was turned.

[00:31:27] Speaker 00:
Moreover, one of the shots fractured his T9 vertebrae.

[00:31:32] Speaker 00:
and the medical examiner testified more likely than not he would have been immediately incapacitated, unable to make voluntary movements with his lower extremities, such as walking.

[00:31:44] Speaker 05:
Was the shot to the arm the same arm in which the bat felled?

[00:31:54] Speaker 00:
Yes.

[00:31:55] Speaker 00:
So that was an important fact.

[00:31:56] Speaker 00:
But there's more than that, Your Honor.

[00:31:58] Speaker 00:
For example,

[00:32:00] Speaker 00:
Because he ended up face down, facing away from the officer, he was so far from the officer, they had to try to figure out how he could be advancing and getting close to him if he ended up so far away.

[00:32:14] Speaker 00:
So at their meeting, they came up with this idea that they would say he advanced, got somewhat close,

[00:32:21] Speaker 00:
And then after he was shot all these times, he turned around and took three to four steps away from the officer, traveling approximately 10 feet before falling down.

[00:32:33] Speaker 00:
Well, each witness said when he was shot, he went right down to the ground, number one.

[00:32:39] Speaker 00:
Number two, the officer in his original statement said he went right down to the ground.

[00:32:44] Speaker 00:
And number three, the medical examiner said it'd be unlikely he'd be able to travel at all.

[00:32:50] Speaker 00:
And as was pointed out in the record, there were multiple credibility issues with Sergeant Ponder.

[00:32:56] Speaker 00:
For example, he said he heard over the radio dispatch that he had threatened a woman.

[00:33:02] Speaker 00:
And the radio dispatch was played.

[00:33:04] Speaker 00:
It was nowhere on there.

[00:33:06] Speaker 00:
He said he saw someone with blood on their face.

[00:33:09] Speaker 00:
The picture was taken of that person.

[00:33:11] Speaker 00:
There was no blood on their face.

[00:33:14] Speaker 00:
He claims he had two bats.

[00:33:16] Speaker 00:
Nobody says he has two bats.

[00:33:18] Speaker 00:
Not one other witness said he had two bats.

[00:33:21] Speaker 00:
As you pointed out, Judge McGowan, which is very important, several witnesses said the decedent would take a step forward, maybe two, and then back.

[00:33:29] Speaker 00:
And the both of them were keeping the same distance until the shots occurred without warning.

[00:33:36] Speaker 00:
But the most important part of the case from our perspective was the gap between the shots, the pause.

[00:33:44] Speaker 00:
his ability to reposition, his ability to reassess, now the back is to him and he continued to fire.

[00:33:54] Speaker 00:
We believe three shots and sadly two of the shots struck his back and those are the shots that killed him.

[00:34:02] Speaker 05:
Let me ask you, in some ways the briefing conflates sufficiency of the evidence, qualified immunity and the facts.

[00:34:10] Speaker 05:
So those three

[00:34:13] Speaker 05:
buckets of information are in front of us.

[00:34:16] Speaker 05:
What Ponder's counsel said is that it's a question of law, and it was undisputed at trial, that it was reasonable for Ponder to mistakenly perceive Nehara as a deadly threat.

[00:34:33] Speaker 05:
So I'd appreciate if you could unpack this and give us your view on

[00:34:39] Speaker 05:
where the qualified immunity clearly established law ends and where the factual disputes then start.

[00:34:48] Speaker 00:
Yes, thank you, Your Honor.

[00:34:50] Speaker 00:
Reasonable mistake of fact is always a question for the jury.

[00:34:54] Speaker 00:
There's multiple published Ninth Circuit opinions that say that.

[00:34:59] Speaker 00:
Johnson v. Bay Area Rapid Transit, Torres v. City of Madera, Wilkins v. City of Oakland, Brandscrum v. San Ramon Police Department, and others.

[00:35:13] Speaker 00:
it's always a question of fact for the jury.

[00:35:17] Speaker 00:
Because whether it was a mistake is a question of fact, whether it was reasonable is a question of fact, and that is why it's included in the jury instruction as a factor.

[00:35:28] Speaker 00:
And as I said, it was argued both in the testimony and closing argument in this case, and any reading of the record will clearly show that.

[00:35:37] Speaker 00:
So since they're conceding the sufficiency of the evidence, they're conceding that he used unconstitutional deadly force that killed this person, we're now stuck at most with qualified the second prong.

[00:35:52] Speaker 00:
Whether the law was clearly established, which this court has already held.

[00:35:56] Speaker 00:
This court pointed to Hayes, to Morris, talked about Garner and Graham.

[00:36:02] Speaker 00:
There's the case of Glenview, Washington County.

[00:36:06] Speaker 00:
All put the officer clearly on notice.

[00:36:10] Speaker 00:
In fact, this court found, under plaintiff's facts, it falls within the obvious.

[00:36:15] Speaker 00:
And we start.

[00:36:16] Speaker 03:
I would like you to.

[00:36:17] Speaker 03:
respond to the answer that I was given, that the facts are different and what was pointed out, one of the facts in dispute was that that was pointed down and that was not the testimony at trial.

[00:36:35] Speaker 03:
And therefore, this issue is still open and wasn't decided in the qualified, the interim, the interlocutory qualified immunity case.

[00:36:45] Speaker 03:
We had an answer on that.

[00:36:46] Speaker 03:
Will you respond to that?

[00:36:48] Speaker 00:
Yes, so I think it is true that at least for the first shot or two, there wasn't clear evidence that it was down, although there's evidence that whether it was one bat or two or on his shoulder or somewhere else is all over the place.

[00:37:06] Speaker 00:
What was clear from the medical examiner's testimony that once he turned around to get the shot to the back of the arm, the bat had to be down.

[00:37:15] Speaker 00:
More importantly, there was one witness who had him stationary throughout the shots.

[00:37:21] Speaker 00:
And this witness's statement was referred to by one of the police practice experts.

[00:37:29] Speaker 00:
But I think, despite how you feel about whether he took a step or two and the shot started without warning, I think there's no way around that second volley of shots.

[00:37:42] Speaker 00:
And the evidence is clear.

[00:37:44] Speaker 00:
The witness said there was at least a five-second gap.

[00:37:48] Speaker 00:
That's the testimony.

[00:37:50] Speaker 00:
Now, they might not agree with it.

[00:37:51] Speaker 00:
They might not like it.

[00:37:53] Speaker 00:
They're claiming his testimony is speculative.

[00:37:57] Speaker 00:
That was his estimate.

[00:37:58] Speaker 00:
They called him as a witness.

[00:38:00] Speaker 00:
They also claimed that this court shouldn't consider the forensic evidence because his 2020 vision of hindsight.

[00:38:07] Speaker 00:
Now, that I have never heard.

[00:38:09] Speaker 00:
that this court can't consider the trajectory of the shots and the medical and physical and forensic evidence because it wasn't known by the officer at the time.

[00:38:19] Speaker 00:
Clearly, direct and circumstantial evidence is very powerful, and sometimes forensic and medical evidence may be more powerful and persuasive than witnesses.

[00:38:30] Speaker 05:
Why wouldn't it be

[00:38:33] Speaker 05:
reasonable to make a mistake on location if there was such a short time between the initial shots to the chest and then when he turned, so that the officer didn't have enough time to perceive a change in the threat position.

[00:38:52] Speaker 00:
Because, number one, that question has already been decided by the jury.

[00:38:57] Speaker 00:
But number two, to answer your question specifically, in this case, it would be for several reasons.

[00:39:03] Speaker 00:
Number one, the officer in his original statement acknowledged that he himself was aware that the decedent had turned away from him.

[00:39:13] Speaker 00:
and he repositioned himself and it was less of a threat.

[00:39:17] Speaker 00:
That came in on cross-examination of the sergeant, but it also came in on their own police practice expert testimony that he was aware there were two distinct volleys of shots with a pause and that the threat had lessened or stopped immediately following the first volley of shots.

[00:39:35] Speaker 00:
So that's number one.

[00:39:37] Speaker 00:
Number two would be the timing.

[00:39:40] Speaker 00:
In other words, if we were talking about a half of a second, as opposed to the testimony in the record of five seconds, where someone has an opportunity to assess that, in my opinion, could not be a reasonable mistake as a matter of law.

[00:39:58] Speaker 00:
Otherwise, in every single case where MSJ is denied, the court holds the law was clearly established, the jury finds the facts in favor of the plaintiff,

[00:40:08] Speaker 00:
and credibility problems with the officer, they're going to come before the Ninth Circuit and say, oh, how about a reasonable mistake?

[00:40:16] Speaker 00:
that, in my opinion, that is not part of the second prong of the qualified immunity analysis.

[00:40:22] Speaker 00:
They're making something up.

[00:40:24] Speaker 00:
Even in Blandford, which has different facts, has been noted.

[00:40:28] Speaker 00:
In that case, the court said, under all those facts, the court found it was a reasonable mistake.

[00:40:35] Speaker 00:
The jury didn't find that, and that would have been more to the first prong, not the second prong.

[00:40:41] Speaker 00:
So they're really, in my opinion, conflating and confusing the qualified immunity doctrine.

[00:40:48] Speaker 00:
They're saying on the one hand, there's no disputed facts, but all the facts are disputed.

[00:40:54] Speaker 00:
They're saying on the other hand, we agree the use of deadly force was unconstitutional, but they're telling the panel it was reasonable in response to counsel's question.

[00:41:04] Speaker 00:
And obviously, it has to be up to the judge's question.

[00:41:07] Speaker 00:
It has to not just be a potential threat.

[00:41:11] Speaker 00:
Obviously, it has to be an immediate threat of death or serious bodily injury.

[00:41:17] Speaker 00:
And the two witnesses they're relying on were so impeached.

[00:41:21] Speaker 00:
Witness Moreno thought he was tased twice.

[00:41:25] Speaker 00:
And she was watching it from a distance and watching it peripherally for the second part of the shooting.

[00:41:32] Speaker 00:
Gaspar went in and out of his house and was aware there was a five-second gap.

[00:41:37] Speaker 00:
So when they stand before your honors and say, oh, this is all undisputed, I think the testimony is different.

[00:41:46] Speaker 00:
And I also think they arguably waived it.

[00:41:49] Speaker 00:
I know there's the Dupree case, but the Dupree case says you don't have to include it in a Rule 58 motion if it's a purely legal issue.

[00:42:00] Speaker 00:
This is not a purely legal issue because it depends on the facts.

[00:42:05] Speaker 05:
If we credit their statement in their reply brief, in which they characterize it, I think, as a legal issue.

[00:42:14] Speaker 00:
Well, of course they have to characterize it that way.

[00:42:16] Speaker 05:
Well, I understand that, but they've characterized it as a legal issue.

[00:42:20] Speaker 05:
If it is a legal issue, would you agree it wouldn't be waived or forfeited?

[00:42:26] Speaker 00:
Yeah, if it's a purely legal issue, not dependent on any facts,

[00:42:32] Speaker 00:
because that's what the cases say.

[00:42:34] Speaker 00:
If it's purely legal issue, it doesn't depend on the facts of the particular case, I would agree.

[00:42:40] Speaker 00:
I just don't think this is a purely legal issue that doesn't depend on the facts, because that's all they've been talking about, is the facts of the case.

[00:42:47] Speaker 05:
Well, we also had an earlier case of Tan Lam, in which the court said, if you make an argument in the 50A motion,

[00:42:59] Speaker 05:
and the facts are the same underlying facts as the one you're going to make in 50B motion, then you don't have a waiver.

[00:43:07] Speaker 05:
Why wouldn't that excuse them from using the magic words qualified immunity?

[00:43:12] Speaker 00:
Because according to them,

[00:43:15] Speaker 00:
Well, for two reasons.

[00:43:17] Speaker 00:
One, I think there are specific cases that say you have to actually identify the qualified immunity defense.

[00:43:23] Speaker 00:
I don't recall the exact wording of Tan Lam, although I'm generally familiar with the case.

[00:43:30] Speaker 00:
But I would also say that at a minimum, you would expect to preserve the issue for appeal.

[00:43:35] Speaker 00:
They would have argued reasonable mistake of law in the 50A or 50B.

[00:43:42] Speaker 00:
It's nowhere there, and here they're arguing it.

[00:43:45] Speaker 00:
They claim to you for the first time, although I'll submit it was part of the trial record.

[00:43:52] Speaker 00:
So I would, from the plaintiff's perspective, we think if the court looks at this carefully, the court will

[00:44:01] Speaker 00:
conclude that this was a reasonable mistake of law as a factual issue that was already decided by this jury and argued during the trial.

[00:44:11] Speaker 00:
So the first prong is done.

[00:44:13] Speaker 00:
The second prong, the court has already found the law was clearly established.

[00:44:19] Speaker 00:
And so answering the question, well, what if the bat's down or up or on the shoulder for the first shot or two and down for the rest of the shots?

[00:44:30] Speaker 00:
I would submit it doesn't change anything.

[00:44:32] Speaker 00:
In fact, the evidence got better in trial as to the gap, as to the distance, as to the resting position of his body, and as to the credibility problems that Sergeant Ponder had.

[00:44:46] Speaker 00:
And the lower court here, Judge Dolly Gee, I feel did a really good job

[00:44:52] Speaker 00:
in her order denying their post trial motions, summarizing the evidence, including summarizing the credibility issues, I think she pointed out about six of them, with Sergeant Palmer's trial testimony indicating the jury may have thrown out his testimony altogether.

[00:45:13] Speaker 00:
And when he testified, just as he was

[00:45:16] Speaker 00:
Well, when he testified at deposition and trial that he fired all five shots in one second, within one second, all five, right at the center of his body, the jury rejected that.

[00:45:30] Speaker 00:
Because they knew based on the witness testimony, the body positioning, the forensic and medical evidence, it could not have happened that way.

[00:45:39] Speaker 05:
And what is the longest period in the record where someone testified as to this gap between the initial shots, which go to the chest, and the final shots?

[00:45:52] Speaker 00:
And that's another interesting point.

[00:45:54] Speaker 05:
Why don't you first tell me what the testimony shows.

[00:45:56] Speaker 00:
OK, I'm sorry.

[00:45:57] Speaker 00:
I just thought of something.

[00:45:58] Speaker 00:
Yeah, I'll answer your question.

[00:45:59] Speaker 00:
I'm so sorry.

[00:46:00] Speaker 00:
Gasper was asked this.

[00:46:03] Speaker 00:
And again, it was cross-examination by me because he was called by them.

[00:46:08] Speaker 00:
He gave a range.

[00:46:10] Speaker 00:
He said five to 30 seconds, and then he said at least five seconds.

[00:46:16] Speaker 00:
That was his testimony at trial.

[00:46:19] Speaker 00:
At least five.

[00:46:20] Speaker 00:
Now, could he be off by a second or two?

[00:46:22] Speaker 00:
Maybe, but it doesn't really matter because you couple that with the forensic and medical evidence and the original statement of the officer and their own police practice expert, it's clear that it wasn't like he turned away in a split second.

[00:46:39] Speaker 00:
There was a gap between the shots.

[00:46:41] Speaker 00:
And that's why we feel the law is so clearly established here and that the issue of reasonable mistake has already been decided.

[00:46:51] Speaker 00:
And if this court feels there hasn't been waiver, that's fine.

[00:46:55] Speaker 00:
But I think from our perspective, it's very easy to say the jury found Fourth Amendment, no reasonable mistake, and the law is clearly established.

[00:47:05] Speaker 00:
This panel's found it before, and now there's even more evidence at trial to support it, unless anyone has any questions.

[00:47:16] Speaker 02:
Thank you very much.

[00:47:17] Speaker 02:
Thanks, counsel.

[00:47:20] Speaker 02:
Okay, we'll hear any of them.

[00:47:24] Speaker 01:
Thank you, Your Honor.

[00:47:25] Speaker 01:
There were a number of misstatements of the record, so I'll just direct the Court's attention to pages 951, where Schuman says she does not have the ability to say what position Mr. Neher was in, as well as the witnesses Moreno, 1146 through 1156, Gaspar, 1175 through 1193, and Lycia, 893 through 899.

[00:47:46] Speaker 01:
I do want to address the core fact that on the uncontroverted evidence, plaintiffs can make any statement they want, Plaintiffs' Council just did, without supporting evidence.

[00:47:57] Speaker 01:
There was no contravening witness testimony, no contravening account other than what was presented at trial.

[00:48:04] Speaker 01:
And on the facts that were presented at trial,

[00:48:07] Speaker 01:
Our facts are much more comparable to cases that found reasonable use of force, including both pre-incident cases and post-incident cases.

[00:48:16] Speaker 01:
None of the cases that Mr. Gallipo cited in his brief would have put defendant Ponder on notice because they had different facts as we explained in our reply.

[00:48:25] Speaker 01:
Particularly, I would like to draw the court's attention to the Bond case, a recent U.S.

[00:48:29] Speaker 01:
Supreme Court case.

[00:48:29] Speaker 05:
Do you have any cases that would provide qualified immunity

[00:48:34] Speaker 05:
for an officer who shot someone in the back at a time when there was not a threat of deadly force?

[00:48:44] Speaker 01:
I think that question, Your Honor, presumes that the officer knows that there is not a threat.

[00:48:50] Speaker 01:
And that's a very different set of evidence than what we have here.

[00:48:52] Speaker 01:
The evidence here, and again, it was uncontroverted that

[00:48:56] Speaker 01:
Defendant Ponder never saw and no other witness saw Mr. Nahara facing away during any point when shots were fired.

[00:49:03] Speaker 01:
That was something that was learned post-incident.

[00:49:06] Speaker 01:
Our facts are much more similar to the Bond case where you had a subject who grabbed a hammer by the handle, put it to his shoulder as if preparing to swing, was six to ten feet away from the shooter, defied commands to drop the hammer,

[00:49:18] Speaker 01:
was in the stance as though to throw or charge the shooter with a hammer did not advance.

[00:49:24] Speaker 01:
And yet the Supreme Court in a per curum opinion found that qualified immunity was due and reversed the lower court of appeals.

[00:49:31] Speaker 01:
I could cite to Ventura, which is in our brief, to Hine, which is in our brief, all of which have facts that are much more comparable where qualified immunity was found.

[00:49:41] Speaker 01:
Plainness, by contrast, did not cite to any cases with facts comparable to what was presented at trial.

[00:49:46] Speaker 01:
And we submit that the trial record was actually stronger on qualified immunity than the record that was before this Court on interlocutor appeal.

[00:49:54] Speaker 01:
And since my time has expired, Your Honors, I would thank the Court for their time and their consideration.

[00:49:58] Speaker 01:
I appreciate your questions.

[00:49:59] Speaker 02:
Thank you, Counsel.

[00:50:01] Speaker 02:
Any questions from Judge McKeown or Judge Rustani?

[00:50:08] Speaker 05:
No, thank you.

[00:50:09] Speaker 05:
Nothing further.

[00:50:16] Speaker 02:
Thank you.

[00:50:18] Speaker 02:
This case shall now be submitted and the court will recess for the day.

[00:50:26] Speaker 02:
Thank you again.