[00:00:40] Speaker 14:
Good afternoon and welcome everyone to the Browning courthouse here in San Francisco.

[00:00:47] Speaker 14:
This is the time set for oral argument in the case of the state of Daniel Hernandez versus city of Los Angeles.

[00:00:56] Speaker 14:
The lawyers are ready to proceed.

[00:00:58] Speaker 14:
You may come forward.

[00:01:04] Speaker 12:
Good afternoon.

[00:01:05] Speaker 12:
May it please the court, my name is Erwin Chemerinsky, and I represent the estate of Dionne Yohannades.

[00:01:10] Speaker 12:
I'd like to save three of my 15 minutes for rebuttal.

[00:01:14] Speaker 12:
This case presents the court the opportunity to resolve an enormously important issue.

[00:01:19] Speaker 12:
What should be the legal standard for determining whether a right is established with sufficient particularity so as to be clearly established law that a reasonable officer should know?

[00:01:29] Speaker 14:
One second, please.

[00:01:30] Speaker 14:
The clock's not on.

[00:01:34] Speaker 14:
Over here.

[00:01:35] Speaker 12:
It's not on the podium either.

[00:01:37] Speaker 14:
Yeah.

[00:01:38] Speaker 14:
Sorry.

[00:01:47] Speaker 14:
Sorry to interrupt you, but let's just pause for just a minute.

[00:01:49] Speaker 14:
Of course.

[00:02:01] Speaker ?:
There we go.

[00:02:01] Speaker 12:
Do you have a clock, sir?

[00:02:02] Speaker 12:
The clock is on now.

[00:02:03] Speaker 14:
Got it.

[00:02:04] Speaker 14:
I think we're ready to resume.

[00:02:06] Speaker 14:
Thank you.

[00:02:07] Speaker 12:
But I will repeat that sentence.

[00:02:09] Speaker ?:
OK.

[00:02:12] Speaker 12:
presents the court the opportunity to resolve an important legal issue.

[00:02:15] Speaker 12:
What is the legal standard for determining the level of particularity in which a right must be established in order to be clearly established law that a reasonable officer know?

[00:02:25] Speaker 12:
I'd urge this court to adopt a straightforward approach based on Supreme Court and Ninth Circuit precedent.

[00:02:31] Speaker 12:
The question should be, is there a meaningful factual difference between this case and precedent so that a reasonable officer would have doubt into the constitutional rule?

[00:02:41] Speaker 12:
Under both Supreme Court and Ninth Circuit precedent, it's clear that when an individual has been shot by police officers and is on the ground, the officers can continue to shoot only if there's an immediate danger to the officers or bystanders or risk of fleeing.

[00:02:57] Speaker 04:
Counsel, let me push back on that because I was interested in how you phrased the question.

[00:03:02] Speaker 04:
It seems to me the question really comes down to notice.

[00:03:05] Speaker 04:
Would you agree with that?

[00:03:06] Speaker 04:
Does an officer have notice in that situation that what he's doing is right or wrong?

[00:03:11] Speaker 04:
under the law.

[00:03:13] Speaker 12:
Your Honor, I think you and I are saying the same thing.

[00:03:15] Speaker 12:
I'm articulating it as a legal standard.

[00:03:17] Speaker 12:
Is there a meaningful factual difference between this case and precedent?

[00:03:22] Speaker 04:
But the problem that I have with where you're going with that is you're sort of asking these officers then to become lawyers and figure out what the general, they read the Zion case and therefore they should know how to act in every other case and the facts, you know, the facts come up differently.

[00:03:39] Speaker 04:
They're making split second decisions.

[00:03:41] Speaker 12:
Of course, but this court has been clear in Zion and other cases that if a suspect had been shot and on the ground, the police can continue to shoot only if there's an immediate threat to the officer or to bystanders or to flee.

[00:03:57] Speaker 12:
That's exactly what Zion said at 874 F3rd, 1076.

[00:04:02] Speaker 12:
And Your Honor, this case is factually indistinguishable from Zion.

[00:04:06] Speaker 09:
But wait a minute, in Zion, there was the first volley of shots of nine shots.

[00:04:11] Speaker 09:
Then the officer ran some distance over to the suspect and shot again, another round of shots, and then walked around in a circle and then stomped on the person, right?

[00:04:20] Speaker 09:
So there were three distinct things that happened and there were breaks and time periods in between.

[00:04:25] Speaker 09:
It seemed to me reading Zion that this case was like the first volley.

[00:04:29] Speaker 09:
There were six shots in six seconds.

[00:04:31] Speaker 09:
There was no long break.

[00:04:33] Speaker 09:
The officer didn't walk around.

[00:04:34] Speaker 09:
She didn't run closer to the suspect.

[00:04:37] Speaker 09:
It was six shots in rapid succession.

[00:04:39] Speaker 12:
Your Honor, I disagree with that characterization.

[00:04:41] Speaker 12:
There were two shots, and then Hernandez was on the ground.

[00:04:44] Speaker 12:
He had been shot twice in the stomach.

[00:04:46] Speaker 12:
He was 40 to 44 feet away from the officer.

[00:04:49] Speaker 12:
He attempted to put his hand on the ground and his knee on the ground to get up.

[00:04:52] Speaker 12:
Rather than wait to see if he could get up or if he was any threat at all, the officer shot him two more times.

[00:05:00] Speaker 12:
At this point, he was on the ground, and most he was trying to roll over.

[00:05:03] Speaker 12:
He was writhing.

[00:05:05] Speaker 12:
Rather than wait and see, as this court's precedent made clear, as the Supreme Court precedent made clear, that he was any immediate threat, the officer in one second shot again.

[00:05:15] Speaker 12:
And this court is commanded in that situation that the officer has to make sure that there continues to be an immediate threat.

[00:05:22] Speaker 10:
Sorry, excessive force question.

[00:05:26] Speaker 10:
Is it just the fifth and sixth shots that you're challenging, or is it the third and fourth?

[00:05:31] Speaker 10:
Which is it?

[00:05:32] Speaker 12:
I would say the third and the fourth and certainly the fifth and the sixth because of the sixth shot that was fatal.

[00:05:38] Speaker 12:
Once he was down on the ground having been shot twice in the abdomen before continuing to shoot, the officer was required under the law from the Supreme Court and this court to see if he continued to be an immediate threat.

[00:05:50] Speaker 12:
In fact, in Zion the court said he had to be easily able to hurt others.

[00:05:55] Speaker 03:
You know, even under your own standard about materially distinguishable, what do we make of Zion's discussion?

[00:06:01] Speaker 03:
There's a whole paragraph about whether or not there was evidence in the case of him trying to get up.

[00:06:08] Speaker 03:
And the court said that that argument of the defense, that that made a difference,

[00:06:13] Speaker 03:
failed because there was no signs of him getting up.

[00:06:17] Speaker 03:
So it failed on the facts.

[00:06:19] Speaker 03:
But here there is evidence that even with respect, certainly with respect to the third and fourth shots, and arguably with respect to the fifth and sixth, that he was trying to get up and that he was moving.

[00:06:30] Speaker 03:
Why isn't that, doesn't that materially distinguish Zion under your own standard?

[00:06:34] Speaker 12:
First, in Zion on page 1075, the court said that there's an indication he might have been trying to get up.

[00:06:40] Speaker 12:
Second, what was going on here should have been a question of fact for the jury.

[00:06:44] Speaker 12:
The question isn't, was he when he was 40 to 44 feet away from the officer trying to get up?

[00:06:48] Speaker 12:
The question is, if he got up, would he pose an immediate threat to the officers or bystanders were to flee?

[00:06:56] Speaker 12:
Having been shot two times, as I said to Justice Thomas, let alone four times for the last two shots, the officer had the obligation

[00:07:04] Speaker 12:
under the decisions of this court and the Supreme Court to see whether he really could get up and whether he was a threat.

[00:07:10] Speaker 12:
And that's what makes this case indistinguishable from Zion.

[00:07:12] Speaker 12:
The other thing, Your Honor, that the panel said in distinguishing Zion is that here, Hernandez didn't put down the box cutter when he was told to do so.

[00:07:22] Speaker 12:
First, that's a factual dispute, too.

[00:07:24] Speaker 12:
If you look at excerpt of record volume two, page 172, you have a witness who said after the third shot, he did try to put down his weapon.

[00:07:32] Speaker 04:
We look at the video and the video is pretty clear that he had the box cutter in his hands even after he was deceased.

[00:07:41] Speaker 04:
Your honor, I don't think you can go to a statement by a witness that is contradicted by the video evidence, can you?

[00:07:47] Speaker 12:
Your honor, I think it's interesting to Scott versus Harris of what is the role of the video versus the witness.

[00:07:52] Speaker 12:
But let me set that aside entirely.

[00:07:55] Speaker 12:
The question still is not, does he have the box cutter in his hand?

[00:07:59] Speaker 12:
The question is, given that he's 40 to 44 feet away from the police officer, and by the time the fifth shot, he's been shot four times.

[00:08:07] Speaker 12:
twice in the abdomen and the thigh and the shoulder.

[00:08:11] Speaker 12:
Is he an immediate threat to the office or others?

[00:08:13] Speaker 04:
The turn I have with this immediate threat law that you want us to adopt is that almost seems like it is at too high of a level of generality.

[00:08:23] Speaker 04:
Because how does an officer, you're still back to the same question, how does the officer have notice whether he's immediate threat?

[00:08:30] Speaker 04:
He says, I felt threatened, but you have to find something in the case law that says it.

[00:08:35] Speaker 12:
Your Honor, I think you're confusing the question of law with the question of fact.

[00:08:39] Speaker 12:
The question of law is, and it's a clear legal standard articulated by this court, is it an immediate threat?

[00:08:45] Speaker 12:
Then you have the question of fact, and that here this should have gone to the jury to determine.

[00:08:50] Speaker 12:
It shouldn't have been determined on qualified immunity by the court.

[00:08:53] Speaker 04:
Well, but that's what you're asking us to do, is say that any time there's a question about whether the threat was immediate or not, that should always go to the jury.

[00:09:02] Speaker 04:
And that would have the reverse effect that you're arguing.

[00:09:05] Speaker 04:
You're saying don't do it with such specificity, but then you're asking us to send all of these cases where there's a potential immediate threat to the jury.

[00:09:13] Speaker 12:
Not at all, Your Honor.

[00:09:15] Speaker 12:
You have to look at the specifics of the case, and you have to also see, is there a meaningful factual difference in precedent?

[00:09:20] Speaker 04:
Okay, I agree with that, but that's not what you were arguing before.

[00:09:23] Speaker 04:
You were saying any time there's a... Just to be clear, you're not asking us that.

[00:09:29] Speaker 04:
to adopt a rule of law that says as long as there's a question of fact as to an immediate threat that should always go to a jury.

[00:09:36] Speaker 12:
I didn't say that, Your Honor.

[00:09:38] Speaker 04:
Of course.

[00:09:39] Speaker 04:
If you're not saying that, then that helps clarify what you're looking at.

[00:09:41] Speaker 12:
Of course.

[00:09:41] Speaker 12:
In any instance, it has to be decided whether or not it's a triable issue of fact of the jury.

[00:09:46] Speaker 12:
I'm saying in the facts of this case,

[00:09:48] Speaker 12:
One Zion and other precedents have said, when a suspect has been shot on the ground, and let's say here, twice or four times, you have to determine whether it's an immediate threat.

[00:09:58] Speaker 12:
You focused in your questions on the notice to the officers.

[00:10:01] Speaker 12:
The Supreme Court in Plumloft versus Rickard a decade ago, this court in Zion has always said that's the standard.

[00:10:08] Speaker 12:
And if the question is, in this situation, was he an immediate threat,

[00:10:13] Speaker 12:
to the officer or to others that have fled, that's the question given these facts that you've gone to jury.

[00:10:18] Speaker 13:
One question, Mr. Chemerinsky, that arises from this discussion is if we agree that the first and second shots were justified by an immediate threat, is it a reasonable rule to expect the officer in this situation to cease what she's doing?

[00:10:34] Speaker 13:
Because I appreciate the argument you're making, but I also can think on the other side that this would be a difficult thing to

[00:10:40] Speaker 13:
to stop if you're in the middle of a high-pressure situation like this.

[00:10:44] Speaker 12:
But this court has commanded in many cases that it's exactly what the officer should do after the first shot.

[00:10:51] Speaker 12:
Shouldn't keep shooting but wait and see.

[00:10:53] Speaker 09:
I'd refer to this... Part of the problem I'm having with the way you're describing the facts is it seems to involve

[00:11:01] Speaker 09:
second-guessing what we've been told not to do.

[00:11:04] Speaker 09:
And your brief or the state's brief included still photos.

[00:11:07] Speaker 09:
But the officer, of course, couldn't see in still photos or free frame or slow motion or rewind and watch multiple, multiple times.

[00:11:15] Speaker 09:
And I've watched those videos multiple, multiple times.

[00:11:17] Speaker 09:
And to parse it out the way that you do with volleys, separate volleys, that doesn't happen when you just watch it in real time the first time through, which is what the officer saw.

[00:11:27] Speaker 09:
So how is that permissible?

[00:11:29] Speaker 09:
Why should we be putting the officer in that position?

[00:11:32] Speaker 12:
If I take your approach to what Judge Bress said, then once an officer starts shooting, the officer can keep shooting until the person is dead.

[00:11:39] Speaker 12:
And that's not what this Court has said.

[00:11:41] Speaker 12:
What this Court has said and said repeatedly is, once somebody has been shot and on the ground, there can only continue to be shots if there's reason to believe there's an immediate threat.

[00:11:51] Speaker 09:
You're looking at all of this after the fact and slowing and stopping the video and taking still photos and making this analysis that the officer couldn't make at the time.

[00:12:00] Speaker 09:
We're talking about six seconds.

[00:12:02] Speaker 09:
It's six seconds from the first shot to the last shot.

[00:12:05] Speaker 12:
But Your Honor, that cuts exactly the other way.

[00:12:07] Speaker 12:
It shouldn't have been six seconds.

[00:12:09] Speaker 12:
The officer after the first two shots should have seen whether he could get up and whether he was an immediate threat.

[00:12:14] Speaker 12:
The officer didn't do that.

[00:12:15] Speaker 09:
And the video clearly shows him getting up after the fourth shot.

[00:12:18] Speaker 12:
Well, what it shows is he's putting his hand on the ground and his knee as if he's about to get up.

[00:12:23] Speaker 12:
Whether he could actually stand up with the two abdomen wounds and whether he could go 40 to 44 feet, the officer should have at least waited to see could he get up.

[00:12:31] Speaker 12:
But even if I can see that, after the fourth shot, he is down on the ground and at most he may be trying to roll over or is writhing in pain.

[00:12:40] Speaker 12:
At that stage, what happens is the officer doesn't what the officer should have done, wait and see whether he'd get up.

[00:12:47] Speaker 12:
What the officer does is wait one second and fire two more shots.

[00:12:50] Speaker 12:
And this court and the Supreme Court had made clear

[00:12:53] Speaker 12:
When somebody is incapacitated, it's the officer's duty to not keep shooting.

[00:12:58] Speaker 12:
That's what the court said in Plum Officer's record.

[00:13:01] Speaker 13:
That's what this court is saying.

[00:13:02] Speaker 13:
Would you be making the same argument if he had a gun, or would you be saying in that case what the officer did was justified?

[00:13:08] Speaker 12:
I think if you had a gun, it would be a very different situation, because somebody from 40 feet could fire a gun.

[00:13:13] Speaker 12:
Somebody from 40 to 44 feet who's down on the ground, having been shot, depending on what you're talking about, two or four times with a box cutter is not any threat unless you can get up.

[00:13:22] Speaker 13:
That's what I'm trying to understand is whether, because sometimes you're phrasing the rule in a way that seems a little bit broader, but it seems that the rule may actually hinge on some of the factual features of this case, like the box cutter as opposed to a gun and perhaps the distance.

[00:13:35] Speaker 12:
Of course, it turns on the factual features, and I completely agree with that, but I'm also not articulating a new standard.

[00:13:42] Speaker 12:
I'm taking exactly word for word what this court had said in Zion on page 1076, and I'm saying, given the facts here, this is something that should have gone to the jury.

[00:13:51] Speaker 12:
I want to save the remaining time for rebuttal if that's permissible.

[00:13:54] Speaker 04:
Can I ask one question clarifying?

[00:13:56] Speaker 04:
Sure.

[00:13:57] Speaker 04:
You said you're representing the estate.

[00:13:58] Speaker 04:
That's correct.

[00:13:59] Speaker 04:
Are you also representing the parents?

[00:14:01] Speaker 12:
The parents, yes.

[00:14:02] Speaker 12:
It is the parents.

[00:14:03] Speaker 04:
And maybe you can address this in the rebuttal, but there's also a 14th Amendment claim here.

[00:14:07] Speaker 04:
There is a 14th Amendment claim.

[00:14:08] Speaker 04:
I would be interested because we have said, at least at the three-judge panel level, that

[00:14:13] Speaker 04:
parents have a 14th Amendment right to the companionship of their adult children.

[00:14:20] Speaker 04:
We are an outlier.

[00:14:21] Speaker 04:
We've never done any analysis of that.

[00:14:23] Speaker 04:
If we wanted to get in

[00:14:27] Speaker 04:
accord with other circuits and reject that on that basis.

[00:14:30] Speaker 04:
Would we have to ask for supplemental briefing here?

[00:14:33] Speaker 12:
That particular issue was not briefed in this case.

[00:14:36] Speaker 12:
There was briefing in terms of whether the due process standard under Porter has been met, but I'd be glad to address both questions if you'd like.

[00:14:43] Speaker 12:
Thank you.

[00:14:44] Speaker 12:
Thank you.

[00:14:56] Speaker 08:
Good afternoon, Your Honors.

[00:14:58] Speaker 08:
Noreen Mokurchian on behalf of the plaintiff MLH minor.

[00:15:02] Speaker 08:
I will reserve two minutes for a bottle.

[00:15:06] Speaker 08:
It seems to me there are two broad issues for this panel.

[00:15:13] Speaker 08:
Did the law existing at the time of this shooting

[00:15:20] Speaker 08:
clearly establish the unconstitutionality of Officer McBride's conduct, continuing to shoot at a wounded suspect on the ground when he no longer poses an imminent threat to the officer or the bystanders?

[00:15:44] Speaker 08:
Is that issue still debatable in our country

[00:15:48] Speaker 08:
within our circuit within the Supreme Court authorities.

[00:15:53] Speaker 08:
Second,

[00:15:56] Speaker 08:
public policy ramifications of this doctrine, are federal courts going to become a relic of the past in enforcing federally protected rights?

[00:16:09] Speaker 08:
Because the current trends in the application of this doctrine have wiped out Section 1983, have turned away litigants from federal courts to the vagaries of the state courts.

[00:16:22] Speaker 08:
In 1865,

[00:16:25] Speaker 08:
After the assassination of President Lincoln, Ulysses S. Grant wrote to his wife, Julia, I have a Herculean task to perform and I shall endeavor to do it, not to please anyone, but for the interests of our great country that is now beginning to loom far above all other countries, modern or ancient.

[00:16:52] Speaker 08:
Right now, President Grant would be turning in his grave if he saw what has happened to the Civil Rights Act of 1871 that he signed into law to fight, to bring forth this country together.

[00:17:11] Speaker 03:
And I think that it's time for us to revisit that doctrine that has authority to change the Supreme Court's case law on qualified immunity.

[00:17:20] Speaker 03:
I understand, you know, we have an amicus brief that suggests that that should be overhauled, but you agree we lack the authority to do that?

[00:17:28] Speaker 08:
Well, Your Honor, if you're sitting on bank, the most influential circuit can at the very least look at the underpinnings of this doctrine, historical, and invite the Supreme Court to revisit it.

[00:17:44] Speaker 08:
I understand that's not the immediate issue before this court, but I do believe that Pearson versus Ray, Harlow versus Fitzgerald are misapplication, misapprehension.

[00:17:56] Speaker 08:
It's a travesty of 1983 statute.

[00:17:59] Speaker 04:
So bringing it back to the case at hand, it seems like what we have to decide and what I'd like to hear from you, would you agree that what we're really looking at for qualified immunity is whether Zion,

[00:18:13] Speaker 08:
clearly establishes a law that the officer should have understood here absolutely because if if you I read the panel's opinion very carefully if the panel has admitted there were separate three valleys of fire

[00:18:28] Speaker 08:
and the panel admitted that the last two shots, before six shots, could be found unreasonable by the jury, then.

[00:18:38] Speaker 04:
No, but that is a false argument, because clearly you can have cases where there's a constitutional violation, but you still get qualified immunity.

[00:18:50] Speaker 04:
So I don't think you can point to the panel's opinion and say, just because they found a tribal issue on the constitutional violation, that answers the qualified immunity question.

[00:18:59] Speaker 08:
No, that's not where I was going.

[00:19:00] Speaker 08:
What I was saying is that Zion controls for those reasons, because Zion has separate valleys of fire.

[00:19:07] Speaker 04:
But my question is, as to qualified immunity, you're saying.

[00:19:13] Speaker 08:
Yes, because if we have, look, the defendants are pointing to Plumov and the court has looked at Plumov versus Rickard saying this is more similar to this case before us than Zion.

[00:19:27] Speaker 08:
That's not true because Plumov, let's look at Plumov very carefully.

[00:19:30] Speaker 08:
Plumov involved a high speed chase of a fleeing suspect that endangered the public at large.

[00:19:36] Speaker 08:
There was no separate rounds of fires and the court there stated this would be a different case on page 2022 if petitioners had initiated a second round of shots after an initial round had clearly incapacitated regard

[00:19:51] Speaker 08:
and had ended any threat of continued flight, or if Richard had clearly given himself up.

[00:19:58] Speaker 08:
Look, Daniel Hernandez, if you look at the forensics analysis of how Daniel Hernandez went down to the ground.

[00:20:07] Speaker 08:
First two shots, he's already shot.

[00:20:11] Speaker 08:
Third, fourth shots, he's crouching on his arms.

[00:20:15] Speaker 08:
Fourth shot, he's on his buttocks.

[00:20:17] Speaker 08:
He's on his buttocks on the ground.

[00:20:20] Speaker 08:
Fee for six shots, he's not prone.

[00:20:22] Speaker 08:
So in response to the question, by your honor, that this is, he's moving, he's got a box cutter in his hands, but that's not the standard for purposes of deadly force, because if you look at case after case, Hayes versus County of San Diego, Diorley, George versus Morris, Ten Lamb versus City of Los Banos, all those cases have said,

[00:20:46] Speaker 08:
For purposes of deadly force, being armed does not mean that you're holding a weapon that is potentially dangerous.

[00:20:55] Speaker 07:
No, being armed means being an imminent threat.

[00:21:02] Speaker 07:
The way they did it is that they said that there's two shots that were fired, then he tried to escape by vehicle, and then there's another, I think, 12 shots after that.

[00:21:11] Speaker 07:
They never did this frame by frame, shot by shot analysis that you're asking us to do.

[00:21:15] Speaker 08:
Where are you getting that from?

[00:21:18] Speaker 08:
They didn't involve their facts, your honor.

[00:21:20] Speaker 08:
They had 15 shots and Plumov and Ricard, Mr. Ricard.

[00:21:24] Speaker 07:
Exactly.

[00:21:24] Speaker 07:
Doesn't that hurt you that there's 15 shots here, there, and they just can group them into two big groupings?

[00:21:30] Speaker 07:
And so you're asking us to take six shots in six seconds.

[00:21:34] Speaker 07:
And do it frame by frame, which I've just never seen before.

[00:21:37] Speaker 09:
Well, no, Zion.

[00:21:38] Speaker 09:
Look at Zion.

[00:21:39] Speaker 09:
But what happened in Zion, so what we know from the opinion is that there were nine shots initially.

[00:21:44] Speaker 09:
It is.

[00:21:45] Speaker 09:
Then there was a break.

[00:21:45] Speaker 09:
The officer approached the suspect and then there were more shots.

[00:21:49] Speaker 09:
How quickly were the first nine shots?

[00:21:51] Speaker 09:
Were they in nine seconds, 15 seconds?

[00:21:53] Speaker 09:
When did the suspect go to the ground?

[00:21:55] Speaker 09:
There's no analysis of that.

[00:21:57] Speaker 09:
But there was a clear break, a clear opportunity

[00:22:00] Speaker 09:
for the officer to stop and reassess, which seems factually different from what happened here.

[00:22:06] Speaker 08:
No, I don't think it's factually different for the following reasons.

[00:22:10] Speaker 08:
The main arguments that are drawn here,

[00:22:13] Speaker 08:
The whole point of this is the imminency of the threat, right?

[00:22:16] Speaker 08:
Why are we looking at this so esoterically?

[00:22:18] Speaker 08:
This is all about the imminency of the threat.

[00:22:21] Speaker 08:
Would a reasonable police officer be on notice that if the threat stops, you need to stop shooting?

[00:22:28] Speaker 13:
Do you agree on the first two shots?

[00:22:30] Speaker 13:
Do you agree that that presented an immediate threat when there was the first confrontation?

[00:22:34] Speaker 08:
Well, I would agree with the court's analysis.

[00:22:37] Speaker 08:
In that respect, a reasonable police officer might have perceived as a threat, even though a jury might have thought differently.

[00:22:43] Speaker 08:
Remember.

[00:22:44] Speaker 13:
But I mean, I think if it's acknowledged at the beginning of this interaction,

[00:22:49] Speaker 13:
the officer had the ability to shoot and including to shoot to kill, we have to then ask what is the significance of what happened in the next four seconds of this because by the logic of this, the officer could have quickly fired six shots and the result would have been the same and we wouldn't be here debating second by second some of these interactions.

[00:23:09] Speaker 08:
No, but because, Your Honor, you need to study the shots.

[00:23:12] Speaker 08:
There was a pause between the first and second and third volley of shots.

[00:23:17] Speaker 08:
There was a pause, and the officer is taught where I was going earlier.

[00:23:21] Speaker 07:
It happened during those pauses.

[00:23:22] Speaker 07:
I mean, there were second-long pauses, right?

[00:23:24] Speaker 07:
Or microsecond-long pauses.

[00:23:25] Speaker 08:
Yes, but, sir, Your Honor, the whole issue is this.

[00:23:30] Speaker 08:
The Board of Police Commissioners, first of all, the policy, let's look at the policies.

[00:23:34] Speaker 08:
Training and policy.

[00:23:35] Speaker 07:
Just look at all the prior precedent, that there's discrete events that happen in between those pauses, and they're not the second long, you know, seconds that you're talking about here.

[00:23:45] Speaker 08:
OK, but what is the problem there?

[00:23:47] Speaker 08:
Zion says, look, if the threat is halted between the shots, a reasonable police officer needs to reassess the threat.

[00:23:55] Speaker 08:
And their policy teaches that.

[00:23:57] Speaker 08:
We have Zion, county of Orange.

[00:23:59] Speaker 08:
We have their policy says that the board independently studied and said, no, this is violation of our policy.

[00:24:05] Speaker 08:
So what is the problem here?

[00:24:06] Speaker 08:
Why are we having a problem of thinking about qualified?

[00:24:10] Speaker 04:
Well, because a board policy does not control qualified immunity.

[00:24:14] Speaker 04:
It may control state law claims, and the panel said, and I would tend to agree, that those state law claims should go forward.

[00:24:24] Speaker 04:
But the board policy does not control qualified immunity.

[00:24:27] Speaker 08:
It does not, but Your Honor, it puts an officer on notice.

[00:24:31] Speaker 08:
If you were asking about officer being on notice, a reasonable police officer is on notice that a threat must be imminent for deadly force.

[00:24:39] Speaker 08:
And if the threat is halted, she needs to stop.

[00:24:42] Speaker 04:
Just to be clear.

[00:24:43] Speaker 04:
clear, there's a difference between being on notice that you violated policy and being on notice that you violated the Constitution.

[00:24:52] Speaker 04:
Those are two separate questions.

[00:24:54] Speaker 08:
We're well aware of that, Your Honor.

[00:24:55] Speaker 08:
But if Zion does not look, if Zion does not control, what else is going to control?

[00:25:00] Speaker 08:
So next case comes along.

[00:25:02] Speaker 08:
Let me tell you what will happen next.

[00:25:03] Speaker 08:
After Daniel Hernandez case is closed,

[00:25:06] Speaker 08:
We will have another case.

[00:25:07] Speaker 08:
We'll come forward, and the judges will say, oh, no, we don't have a factually identical case.

[00:25:12] Speaker 08:
Therefore, qualified immunity applies.

[00:25:14] Speaker 08:
No, but that's not the standard that we've had.

[00:25:16] Speaker 08:
Look at all these cases.

[00:25:17] Speaker 04:
I don't think that's a fair rendition of what the panel did here.

[00:25:22] Speaker 04:
They didn't ask for a factually identical case.

[00:25:25] Speaker 04:
We're having a debate about how close it has to be.

[00:25:29] Speaker 04:
I don't think anybody's asking for factual

[00:25:31] Speaker 04:
I mean, exact similarity.

[00:25:36] Speaker 08:
But Your Honor, let me tell you something.

[00:25:38] Speaker 08:
If at MHJ, judges sitting at motion for summary judgment are going to do this granular, molecular type of analysis of qualified immunity, and they are going to grant it on the basis of such molecular view of the facts, isn't that a violation of the right to jury trial?

[00:25:55] Speaker 08:
The issue, whether Hernandez was a threat, imminent threat,

[00:26:00] Speaker 08:
at the fee for six shots was a question for the jury, Your Honor, not for the judges.

[00:26:04] Speaker 04:
Now you're stepping into the same problem that I was giving your co-counsel or a problem with, because I think you have to be careful about saying imminent threat is the touch point, because there's always going to be a jury question about whether it's imminent threat.

[00:26:24] Speaker 04:
So we can't just say, oh, well, there's a jury question on whether it's imminent threat, so you have to go to the jury.

[00:26:29] Speaker 08:
No, but we have analogous, if you look at Kisela versus Hughes, let's go to Kisela versus Hughes, which is the controlling authority after Zion, and we have there the judges said, look, okay, we don't need you to provide factually identical case only to show that there is consensus in the governing authority.

[00:26:48] Speaker 08:
Let me ask you this, Your Honor.

[00:26:50] Speaker 08:
Isn't there any consensus?

[00:26:52] Speaker 07:
Counsel, can I ask a question?

[00:26:53] Speaker 07:
If we agreed with the district court that there was no constitutional violation, and it's step one that there was no violation, should we still remand on the state law claims?

[00:27:03] Speaker 07:
Because there is case law saying that California state law is a broader protection than the Fourth Amendment.

[00:27:09] Speaker 07:
And the district court did not do a separate analysis between the constitutional analysis and the state law analysis.

[00:27:15] Speaker 08:
Well, I am not concerned about that, Your Honor, right now.

[00:27:19] Speaker 08:
I'm just not understanding your question, because if you think that the panel got it wrong, in terms of- No, I'm saying if we think that the district court got it right on the constitutional question.

[00:27:30] Speaker 07:
then what should we does that mean that we need to affirm on the state law question or should we still remand because there's a distinction there's a Delta between the Fourth Amendment right and the California right.

[00:27:42] Speaker 08:
Yes we understand that but we didn't touch upon that in our unbound briefing and I'm more concerned about the fact that Zion is basically

[00:27:51] Speaker 08:
de facto being overruled by this panel's decision.

[00:27:55] Speaker 08:
And if you look at the case of Ten Lamb versus City of Los Banos, it's a very good analysis that specifically confirms that Zion, and that came after Kissela versus Seuss, that came

[00:28:09] Speaker 08:
after our case even, it came in 2020, and I think that is a very instructive analysis confirms that you look at the fires separately.

[00:28:21] Speaker 09:
At this point in time, it was pretty factually distinguishable because the officer had shot the suspect who

[00:28:28] Speaker 09:
If I recall correctly, he was armed with scissors and may have already stabbed somebody with the scissors, maybe even the officer.

[00:28:33] Speaker 09:
I think he actually stabbed the officer.

[00:28:35] Speaker 09:
Then the officer's gun jammed, and he retreated and had time to clear the jam.

[00:28:40] Speaker 09:
So there was a very long break.

[00:28:42] Speaker 09:
And then he shot the suspect later.

[00:28:44] Speaker 09:
And at that point, the situation had subsided and the danger was no longer present.

[00:28:49] Speaker 09:
That's entirely different from what happened here.

[00:28:51] Speaker 08:
Well, Your Honor, if you look at it, our facts are even more favorable.

[00:28:55] Speaker 08:
My client was never seen stabbing anyone.

[00:28:58] Speaker 08:
Connor Zion stabbed three people, 10 lambs, sunny, sunny.

[00:29:04] Speaker 09:
But on the relevant point is that there were distinct breaks in what happened in Zion and what happened in lamb.

[00:29:13] Speaker 09:
But there wasn't here.

[00:29:14] Speaker 09:
I mean, you say that there was if we freeze frame and take still photos and review the video in slow motion over and over again.

[00:29:22] Speaker 09:
We can say it was not one set of shots.

[00:29:25] Speaker 08:
No, the point is this.

[00:29:26] Speaker 08:
The point of those cases, both Zion

[00:29:28] Speaker 08:
and 10 Lam versus City of Los Banos is the following.

[00:29:32] Speaker 08:
If the suspect is incapacitated, is on the ground, whether he's moving, whether he's holding something that can be potentially dangerous weapon, judges have rejected that.

[00:29:47] Speaker 08:
They've said for our purposes,

[00:29:49] Speaker 08:
For this, there is clearly established law that when there is suspect, that initially is a threat.

[00:29:56] Speaker 08:
Initially, I'll give you that.

[00:29:57] Speaker 08:
Initially, deadly force is justified.

[00:30:00] Speaker 08:
Yes, he's armed.

[00:30:01] Speaker 08:
That's a potential danger.

[00:30:02] Speaker 08:
You incapacitate.

[00:30:03] Speaker 08:
You stop that threat.

[00:30:06] Speaker 08:
But once that threat is halted,

[00:30:09] Speaker 08:
The whole point is that the officer is on notice that she cannot continue.

[00:30:14] Speaker 08:
You do not terminate the suspect, you terminate the threat.

[00:30:18] Speaker 08:
And so this officer, what she did do wrong was that after this man had his buttocks on the ground, he was kneeling, he was wounded, he was struck by the bullets, he was screaming from pain.

[00:30:32] Speaker 08:
She is a trained officer.

[00:30:34] Speaker 08:
A reasonable police officer would have stopped.

[00:30:37] Speaker 08:
not continued shooting.

[00:30:39] Speaker 08:
And that is the key component of the holding of time versus county watch.

[00:30:47] Speaker 14:
Thank you, counsel.

[00:30:48] Speaker 14:
Thank you very much, counsel.

[00:31:11] Speaker 02:
Chief Justice Mergia, honorable judges, may it please the court.

[00:31:16] Speaker 02:
My name is Kevin Gilbert.

[00:31:17] Speaker 02:
I represent the defendants and appellees in this matter.

[00:31:21] Speaker 02:
This matter comes to the court following the trial court granting summary judgment, finding that the use of lethal force was not only objectively reasonable, but also that the officer was entitled to qualified immunity.

[00:31:33] Speaker 02:
The three-judge panel then issued a decision finding that shots five and six

[00:31:38] Speaker 02:
We're too close to call.

[00:31:41] Speaker 01:
We're well familiar with the procedural history of this case.

[00:31:44] Speaker 01:
Let me ask you this, and I'm going to read you a couple of sentences directly from Zion on page 1076.

[00:31:52] Speaker 01:
There we said, terminating a threat doesn't necessarily mean terminating the suspect.

[00:31:58] Speaker 01:
If the suspect is on the ground and appears wounded, he may no longer pose a threat.

[00:32:04] Speaker 01:
A reasonable officer would reassess the situation

[00:32:07] Speaker 01:
rather than continue shooting.

[00:32:09] Speaker 01:
This is particularly true when the suspect wields a knife rather than a firearm.

[00:32:13] Speaker 01:
What more do we need to say than that to clearly establish or to put an officer on notice that if a suspect is on the ground and there's an opportunity to reflect, to pause, to not shoot, to kill?

[00:32:31] Speaker 02:
Your Honor, thank you for raising that.

[00:32:32] Speaker 02:
Zion is not only factually distinguishable, but legally distinguishable.

[00:32:36] Speaker 02:
And what we are asking the panel, and what I think the proper inquiry should be, is whether shots five and six were objectively reasonable.

[00:32:45] Speaker 02:
And there should be a new standard enunciated for the continued evaluation of lethal force, not the initial evaluation, because that has already been addressed by the Supreme Court.

[00:32:55] Speaker 02:
Supreme Court has already said where there's an imminent threat, you may fire, and as Plumhoff made clear, you may continue to do so until the threat has ended.

[00:33:06] Speaker 02:
Now, sitting in this courtroom.

[00:33:08] Speaker 01:
Sure, but I think I think of this as involving two separate increase that's before the en banc court, right?

[00:33:16] Speaker 01:
One is the scope of what's clearly established, and then second, whether they're triable questions of material fact that would put this case before a jury.

[00:33:25] Speaker 01:
And so I'll just put that to you as two separate questions.

[00:33:29] Speaker 01:
One is the scope of what Zion clearly established, and I'm really struggling to understand why

[00:33:36] Speaker 01:
there's a distinction between Zion and this case in terms of the principle of law that's articulated.

[00:33:44] Speaker 01:
You shoot somebody, he falls on the ground, you're 40 feet away, or 40 plus feet away in this particular case, he doesn't have a gun, and so the principle is pause, reflect, and see whether you can stop shooting at that point, right?

[00:34:01] Speaker 01:
And the second related, but I think can be a distinct inquiry, is whether the six seconds that it took to basically

[00:34:09] Speaker 01:
terminate the threat in your view, whether that even creates a triable question of fact for the jury.

[00:34:15] Speaker 01:
So I want you to take that up separately if you can.

[00:34:20] Speaker 02:
Of course.

[00:34:21] Speaker 02:
So what we would ask this panel to adopt is a standard that evaluates the continued use of lethal force and looks at two factors.

[00:34:28] Speaker 02:
Where continuous lethal force is employed, an officer may continue to use lethal force unless and until there is one

[00:34:36] Speaker 02:
a material change in the circumstances, and two, coupled with a reasonable opportunity for the officer to perceive that change.

[00:34:44] Speaker 02:
Turning to Zion, Zion had distinct breaks in the proceedings.

[00:34:49] Speaker 02:
The officer not only fired the first round, but then paused, came up, fired a second round, then engaged again, and kicked the suspect.

[00:34:59] Speaker 03:
The opinion in Zion, as Judge Beatty noticed, doesn't say what the facts are, but if you go to the briefs,

[00:35:05] Speaker 03:
The defendant's brief in that case says that the length of time between the shots was only one second.

[00:35:15] Speaker 03:
The time between the supposed first volley and second volley was less than a second, the slightest of pauses at best.

[00:35:22] Speaker 03:
Here, there were two seconds.

[00:35:25] Speaker 03:
between the first volley and the second volley and it was for one second.

[00:35:32] Speaker 03:
So this isn't distinguishable from Zion in that respect.

[00:35:37] Speaker 03:
Zion analyzed those separately as separate volleys.

[00:35:40] Speaker 02:
Understood, but you are focusing on the defendant's arguments in Zion, not on the facts or the fact that the officer also came up and kicked.

[00:35:50] Speaker 03:
You said that there was a difference in time here between this case and Zion, that Zion had more opportunity for reflection.

[00:35:59] Speaker 03:
In fact, it was one second space between the volleys, just like this one second space between shots four and five here.

[00:36:06] Speaker 03:
So it's not materially distinguishable from Zion in terms of whether or not there are separate volleys.

[00:36:13] Speaker 02:
And my point was not the reflection.

[00:36:15] Speaker 02:
My point was during that time in Zion, the evidence and what the briefing shows is that the suspect was not making an effort to get up.

[00:36:25] Speaker 01:
But why isn't the question of whether the suspect posed a further threat?

[00:36:32] Speaker 01:
After having been shot, falling to the ground, he's moving.

[00:36:35] Speaker 01:
There's no question about that.

[00:36:37] Speaker 01:
But couldn't reasonable minds disagree on whether he poses a further threat?

[00:36:42] Speaker 02:
Well, again, we need to turn to the Supreme Court to its guidance on these issues, and that has been addressed in a trio of cases.

[00:36:49] Speaker 02:
First, Plumhoff addresses it.

[00:36:51] Speaker 01:
I think the threat's terminated.

[00:36:53] Speaker 01:
That's a question for the jury.

[00:36:54] Speaker 01:
You can argue that to the jury that, well, he's moving around, he's attempting to get up, he's still holding the box cutter, and so therefore the threat has not ended.

[00:37:04] Speaker 01:
But the plaintiffs can also argue that the threat has ended.

[00:37:07] Speaker 01:
Look at the video.

[00:37:09] Speaker 01:
He's clearly severely wounded.

[00:37:11] Speaker 01:
He was moving very slowly.

[00:37:13] Speaker 01:
And so the officer didn't have to shoot the second, third, or at a minimum, they're entitled to argue the fourth and fifth shot.

[00:37:21] Speaker 01:
So how do you respond to that?

[00:37:23] Speaker 02:
You are the video undisputedly shows the suspect continuing to try and advance.

[00:37:28] Speaker 02:
The officer does not know how damaged or even if he's been shot.

[00:37:31] Speaker 02:
She knows he finds advance.

[00:37:34] Speaker 01:
What do you mean by that?

[00:37:35] Speaker 02:
He's between shot two and three.

[00:37:37] Speaker 02:
He gets up and starts to get into a Sprinter stamp before he's shot again.

[00:37:41] Speaker 02:
The officer does not know if he's been shot at any time.

[00:37:44] Speaker 01:
What about between shots three, four, three and four, five and six?

[00:37:48] Speaker 02:
There's still no evidence the officer knows.

[00:37:50] Speaker 02:
Your Honor knows that by taking the video and watching it time and again.

[00:37:54] Speaker 02:
By posing it.

[00:37:55] Speaker 05:
Counsel, it looks like he's rolling around after having been shot four times.

[00:38:01] Speaker 05:
Wouldn't a reasonable jury determine that?

[00:38:04] Speaker 02:
Well, the question is not whether a reasonable jury would.

[00:38:06] Speaker 02:
The question is, based upon Plumhoff and Sheehan, would a reasonable officer understand that the threat had ended?

[00:38:13] Speaker 02:
In Sheehan, you'll recall, the suspect was on the ground, shot, and yet, despite being on the ground, the Supreme Court found that the suspect... But he was rolling around after being shot four times with a box cutter.

[00:38:28] Speaker 05:
Where's the immediate threat?

[00:38:29] Speaker 02:
He's absolutely still a threat.

[00:38:31] Speaker 02:
He's still continuing to move forward.

[00:38:33] Speaker 02:
And it's not just the officer that's in threat.

[00:38:36] Speaker 02:
There's numerous people in closer proximity on either side of him on the sides of the street.

[00:38:41] Speaker 02:
This is an individual that the officer suspected he was under the influence of methamphetamine, knows he has a weapon, he's disregarded commands to drop the weapon or to comply, and he's continuing to advance.

[00:38:53] Speaker 02:
based upon the Supreme Court's comments in Sheehan.

[00:38:56] Speaker 05:
Why do you say that, that he was continuing to advance when he's rolling on the ground?

[00:39:00] Speaker 05:
I mean, again, we've all seen that video many, many times, unfortunately.

[00:39:04] Speaker 02:
And therein lies the problem is, as the Supreme Court has said, the officers need to be judged in real time, standing in the situation with a person coming towards them, armed, acting erratically under the influence.

[00:39:18] Speaker 02:
When you watch it numerous times, you have the luxury of sitting in a safe chambers.

[00:39:24] Speaker 02:
None of us want to stand in front of somebody with a gun or face someone who's trying to kill us, but that is what officers do.

[00:39:30] Speaker 02:
And that is why Graham and numerous other cases, Graham is very specific.

[00:39:36] Speaker 02:
We must evaluate the situation based upon this information known to the officers and not with the vision of 2020.

[00:39:42] Speaker 11:
Council, are you suggesting that we should not look at videos of these incidents?

[00:39:47] Speaker 02:
No, Your Honor, that's not it at all.

[00:39:49] Speaker 02:
I think videos have their purpose, but they need to be used carefully and sparingly.

[00:39:54] Speaker 11:
What do you mean by that?

[00:39:55] Speaker 11:
Should we watch it one time, two times, not slow it down?

[00:40:00] Speaker 11:
What do you mean by carefully and sparingly?

[00:40:03] Speaker 02:
So I struggle to give a specific rule of law, because I don't think that you could adopt a rule of law that goes across the entire uses of force.

[00:40:12] Speaker 02:
I think that when a court evaluates the specific use of force, it needs to look at,

[00:40:18] Speaker 02:
What was the officer's vantage point?

[00:40:20] Speaker 02:
What did they see?

[00:40:21] Speaker 02:
How did they evaluate the facts?

[00:40:23] Speaker 02:
And what Tony McBride saw in this situation was a man who continued to try and get up who was armed.

[00:40:30] Speaker 02:
She knew he had a knife.

[00:40:32] Speaker 02:
She didn't know if he had a gun or not.

[00:40:34] Speaker 02:
He had not been searched.

[00:40:35] Speaker 02:
So this is not a situation where she knows obviously he's on the ground, he's safe.

[00:40:40] Speaker 02:
And in fact, she had specifically addressed that.

[00:40:44] Speaker 06:
Mr. Gilbert, a lot of this might be good closing argument, but we're asking what an officer would be on notice of.

[00:40:54] Speaker 06:
You're talking about Sheehan.

[00:40:56] Speaker 06:
Your brief focuses on car chase places.

[00:40:59] Speaker 06:
It seems like you're making the same mistake the Supreme Court has assigned to us when we've attacked something at too general a level.

[00:41:06] Speaker 06:
We have a case, Zion, that says continued force against a suspect who's been brought to the ground can violate the Fourth Amendment.

[00:41:13] Speaker 06:
That is the case here.

[00:41:15] Speaker 06:
We said it was clearly established then at the time, because we cite in cases that you can't sit on someone while they're down, you can't punch someone while they're down, you can't stop on someone's head while you're down.

[00:41:26] Speaker 06:
Why wouldn't an officer be on notice that you can't shoot someone twice when they're down?

[00:41:32] Speaker 02:
if there was clear evidence that the person was down and was no longer a threat.

[00:41:37] Speaker 06:
I agree with that.

[00:41:38] Speaker 06:
But when we talk about the threat, so as we don't invade the province of the jury, some of that has to be a jury question about whether the person is actually down.

[00:41:50] Speaker 06:
In terms of whether they're a threat, once we fall back on the threat, and this is going to be my question for your friend as well, if we evaluate it simply at the threat level, I agree that may not provide a reasonable officer sufficient notice.

[00:42:02] Speaker 06:
But we have a case, Zion, that not only clearly establishes a similar set of facts, but itself held it's clearly established.

[00:42:10] Speaker 06:
You can't shoot a man when he's down, when they're not a threat.

[00:42:14] Speaker 06:
And the question of whether they're a threat, how far away they were, whether they had a knife, whether they was handling it, question for the jury in Zion, question for the jury in this case.

[00:42:22] Speaker 06:
But why isn't that enough notice for an officer?

[00:42:25] Speaker 02:
I don't believe Zion states that you can't shoot someone when they're down.

[00:42:28] Speaker 02:
I believe Zion holds the principle that you cannot shoot them when they're no longer a threat.

[00:42:33] Speaker 02:
It does not have such far-broad-reaching scope as far as someone being down.

[00:42:38] Speaker 02:
If it did, Zion would be directly contrary to Sheehan at Plumhoff.

[00:42:43] Speaker 01:
It said in the portion I read to you that if he

[00:42:46] Speaker 01:
is on the ground and appears wounded, he may no longer pose a threat.

[00:42:50] Speaker 01:
And a reasonable officer would pause to assess the situation rather than continue shooting.

[00:42:56] Speaker 01:
That's pretty clear.

[00:42:58] Speaker 14:
And wouldn't that be true when the officer testified that she knew that her first four shots she aimed for and was shooting at center mass, the center mass of his body, and that she had

[00:43:09] Speaker 14:
shot him in the center mass of his body?

[00:43:12] Speaker 02:
No.

[00:43:12] Speaker 02:
You cannot make that assumption.

[00:43:14] Speaker 02:
The officer did not know whether he had been hit or not.

[00:43:17] Speaker 02:
She did aim at center mass.

[00:43:18] Speaker 02:
She did shoot.

[00:43:19] Speaker 02:
But there is no objective evidence for her to make that conclusion on.

[00:43:23] Speaker 02:
She still sees the person still rolling around, still getting up.

[00:43:27] Speaker 02:
And in fact, as this court... Even by looking at the video?

[00:43:31] Speaker 14:
I mean, that's what we're looking at.

[00:43:32] Speaker 14:
You're saying that we can't make that determination at this point?

[00:43:36] Speaker 15:
Well, I'm sorry.

[00:43:39] Speaker 14:
I just interjected on Judge Wynn's question, but I wanted to add that as an additional piece, so you can go ahead and respond to Judge Wynn.

[00:43:48] Speaker 02:
We have four judges who have looked at this, our trial judge and three-judge panel.

[00:43:52] Speaker 02:
The cumulative response is that even after shot four, the suspect, quote, continually moved in a way that gave the appearance of trying to get up.

[00:44:03] Speaker 06:
But you cite Cheyenne, for example, and Casella, too, two cases that focuses our attention, because they're both cases where the Supreme Court is overturning us.

[00:44:11] Speaker 06:
But in both those cases, there is someone within striking distance.

[00:44:14] Speaker 06:
Who's in striking distance of Mr. Hernandez's box cutter?

[00:44:17] Speaker 02:
Well, let's look at the factual situation.

[00:44:19] Speaker 02:
The totality from the time he rounded the back of the truck until the time the six shot was fired was nine seconds.

[00:44:26] Speaker 02:
And during that nine seconds, you have five and a half to six seconds of the six shots.

[00:44:31] Speaker 02:
He had closed half the distance in the three seconds before she fired, and she was backing up while he was doing that.

[00:44:39] Speaker 02:
He was continuing to advance.

[00:44:41] Speaker 02:
So you have an officer who's not only tactically redeploying, but you have a suspect that's closing that distance extremely quickly.

[00:44:48] Speaker 06:
But that's not their question.

[00:44:49] Speaker 06:
That's not the issue, as I understand it, that the plaintiffs are presenting.

[00:44:53] Speaker 06:
We're talking about the third, fourth, fifth, sixth shots.

[00:44:55] Speaker 06:
Mr. Hernandez did not close any distance after the first couple of shots.

[00:45:00] Speaker 02:
After the second shot, he tried to.

[00:45:03] Speaker 02:
He rose up, got into a sprinter stance before he was shot again.

[00:45:06] Speaker 02:
But the court is dividing the volleys.

[00:45:11] Speaker 02:
into individual, decisional moments.

[00:45:14] Speaker 02:
That is, no court has ever done that.

[00:45:16] Speaker 02:
No decision has ever done that.

[00:45:17] Speaker 02:
In fact, the Monson decision seemed to group the shots together and suggest they should be as a volley.

[00:45:25] Speaker 02:
Plumhoff did the same thing and confirmed that you look at the use of force in the volley and that's why we're advocating for a new policy.

[00:45:31] Speaker 06:
Why is that not clearly established with respect to you can shoot until the threat's terminated, but you have an obligation to assess?

[00:45:38] Speaker 06:
Why doesn't that include?

[00:45:39] Speaker 06:
I guess what's your response to your friend's argument that you're urging a rule that says you can shoot until the suspect is dead?

[00:45:47] Speaker 02:
That's not what we're advocating.

[00:45:49] Speaker 02:
We're advocating that you can shoot once lethal force is objectively reasonable, that an officer can continue to employ it unless and until there is a material change.

[00:46:01] Speaker 02:
And in this case, I use material because that is already robustly defined in case law for rule 56 motions, a material change.

[00:46:09] Speaker 02:
He stops advancing, for example, coupled with a reasonable opportunity to perceive it.

[00:46:14] Speaker 02:
We're talking about split seconds here.

[00:46:17] Speaker 02:
And as numerous courts have found, for example, in Wilkinson versus Torres, the court went and said, we're not going to decide if two seconds is too quick to process and evaluate.

[00:46:28] Speaker 02:
The officer literally is splitting hairs.

[00:46:30] Speaker 14:
But Zion was within a short period of second time as well, wasn't it?

[00:46:35] Speaker 02:
Zion, you have an officer that's advancing on a suspect that is down, that is not moving, is making no effort to get up.

[00:46:42] Speaker 10:
That's not correct.

[00:46:43] Speaker 10:
I'm reading Zion.

[00:46:45] Speaker 10:
Zion was still moving at a certain point, and we held that there still might be a violation in that case.

[00:46:53] Speaker 10:
So it's just not correct that Zion was not moving at all at the point of the second round of shots.

[00:46:59] Speaker 02:
I'm sorry, and I thought that the discussion Zion focused on the fact that there's no evidence that the suspect posed a further threat.

[00:47:07] Speaker 10:
Defendants argue that Higgins continued use of deadly force was reasonable because Zion was still moving.

[00:47:11] Speaker 10:
I'm reading from the decision, but it says a jury could nevertheless find that

[00:47:18] Speaker 10:
Zion would no longer pose a danger.

[00:47:19] Speaker 02:
But if I'm not mistaken, forgive me, I don't have the facts memorized, but I thought that the moving was moving on the floor, not trying to get up, trying to advance, trying to do anything else.

[00:47:30] Speaker 02:
So moving on the floor is different than

[00:47:34] Speaker 02:
in this case, a suspect that is literally getting up into a sprinter's stance the first time, the second?

[00:47:38] Speaker 14:
When you say getting up to a sprinter's stance, that is your characterization.

[00:47:43] Speaker 14:
I guess you've said that now a couple of times, and I want to make sure.

[00:47:46] Speaker 14:
I don't know that everybody or a jury would agree with that characterization, and that's kind of the question.

[00:47:52] Speaker 14:
That's why we're here, is that should that have gone to a jury?

[00:47:56] Speaker 14:
You're characterized as a sprinter's stance.

[00:47:59] Speaker 14:
I did not see it as a sprinter's stance.

[00:48:01] Speaker 14:
I don't know if I'm right, but it seems like because there's a question there, why wouldn't we let this go to a jury?

[00:48:07] Speaker 02:
Because whatever the adjective is, it's used to describe it.

[00:48:10] Speaker 02:
The video is very clear.

[00:48:11] Speaker 02:
And Scott is very clear about the priority of videos.

[00:48:14] Speaker 02:
It shows the suspect rising up to some level.

[00:48:18] Speaker 01:
So let me ask you this, because I think we're now going in circles in terms of the perception of the facts.

[00:48:22] Speaker 01:
So I'm going to read you the way the three-judge panel described the fifth and sixth shot.

[00:48:31] Speaker 01:
As Hernandez started to shift his weight to his feet to stand up McBride again yelled drop it and fired a second volley of two shots Then he fell back on his back and then it continues Hernandez began to roll over onto his left side and as he did this McBride fired a fifth shot Hernandez continued to roll over so that he was again facing

[00:48:51] Speaker 01:
McBride his bent left knee was pressed against the ground and he placed his left elbow on the street as if to push himself upwards.

[00:48:58] Speaker 02:
Do you dispute that?

[00:48:59] Speaker 02:
So I don't dispute it but I add in the following and this is at page 18 of the opinion that Hernandez quote continually moved in a way that gave the appearance of trying to get up

[00:49:12] Speaker 02:
That goes to the Plumhoff decision.

[00:49:15] Speaker 02:
Was Hernandez clearly incapacitated?

[00:49:19] Speaker 01:
Your argument, taken to its logical conclusion, means that any time a suspect is on the ground, wounded, but hasn't ceased his movements, then the officer can continue firing, right?

[00:49:34] Speaker 02:
I think such a blanket statement is over-broadened, is not my argument.

[00:49:39] Speaker 02:
My argument is very specific.

[00:49:41] Speaker 02:
In this case, where you have a suspect that has already posed an imminent threat, has already disregarded numerous directions, as Officer McBride gave him directions to halt, drop the weapon, his only response was, you know I'm not going to do that.

[00:49:55] Speaker 01:
So in this case, after the

[00:49:58] Speaker 01:
Fourth shot.

[00:49:59] Speaker 01:
So long as his body is still moving, the officer can continue shooting.

[00:50:05] Speaker 02:
No, I don't think it's simply because he's moving.

[00:50:07] Speaker 02:
I think that because he's continuing to hold the knife, he's continuing to be non-compliant, he appears to be getting up, and the officer's reasonable conclusion is that he could be continuing to advance.

[00:50:20] Speaker 02:
An officer does not need to wait and see the glint of steel as it comes into her.

[00:50:23] Speaker 01:
Well, at some point, though, that's got to become a question of fact for the jury, right?

[00:50:26] Speaker 01:
You're making an argument that the jury may very well accept, given the short duration of time, but I think the jury could easily see it the other way as well.

[00:50:34] Speaker 02:
So Your Honor, I think that goes to the point of the Supreme Court in high end.

[00:50:38] Speaker 02:
In high end, the Supreme Court was very clear that to be reasonable is not to be perfect.

[00:50:43] Speaker 02:
So while in the serenity of this courtroom, we may see facts differently and have the luxury of a video, the officer could not call time out and say, hey, what are you doing?

[00:50:51] Speaker 02:
Are you still a threat?

[00:50:53] Speaker 02:
Instead, she had to make a life and death decision.

[00:50:56] Speaker 14:
That's the whole question, did she, at that point?

[00:50:59] Speaker 14:
Because was he charging her?

[00:51:01] Speaker 14:
Do you think that he was charging her?

[00:51:04] Speaker 02:
I think he was continuing to try and get up.

[00:51:06] Speaker 02:
All right.

[00:51:07] Speaker 14:
And do you think he was rapidly advancing toward her?

[00:51:10] Speaker 02:
After the fourth shot, no.

[00:51:12] Speaker 02:
OK.

[00:51:13] Speaker 14:
But I think he- So it seems like our case law on this issue seems to focus on those kind of issues, those kind of facts.

[00:51:20] Speaker 14:
Even within a smaller distance, in the Hayes case, the person was eight feet away.

[00:51:26] Speaker 14:
And it was in enclosed circumstances.

[00:51:31] Speaker 14:
He wasn't charging, so the court said they can evaluate and go forward to a jury for qualified immunity.

[00:51:38] Speaker 14:
So I'm just trying to draw the distinction here because here he wasn't charging, he wasn't rapidly advancing toward her.

[00:51:48] Speaker 14:
She knew she had shot four times at center mass.

[00:51:52] Speaker 14:
It seems from the video she saw that it hit him each time.

[00:51:57] Speaker 14:
I'm just struggling with why wouldn't that go to a jury to determine if it was reasonable?

[00:52:03] Speaker 02:
Because, first of all, you have to look at the facts as the officer viewed them with a suspect standing in front of her, and she's still trying to evaluate.

[00:52:12] Speaker 14:
In hindsight— In light of our law, we have to do that.

[00:52:15] Speaker 14:
I know you keep talking about the luxury of the courtroom.

[00:52:17] Speaker 14:
What we do here is have to evaluate the facts in light of our law.

[00:52:21] Speaker 14:
And the law, we have cases that set forth that under these circumstances

[00:52:28] Speaker 14:
It could be set to a jury, and it maybe should be set to a jury.

[00:52:31] Speaker 14:
And that's what we're trying to determine.

[00:52:33] Speaker 02:
That would be directly contrary to established precedent.

[00:52:35] Speaker 02:
For example, Judge Winn's opinion in Isley versus Riverside, the suspect threw the gun away two to four seconds before he shot.

[00:52:44] Speaker 02:
And yet, despite throwing the gun away beforehand, clearly he's not a threat at that point.

[00:52:50] Speaker 02:
It was still found that the officer was entitled to qualified immunity.

[00:52:54] Speaker 02:
There's countless decisions.

[00:52:56] Speaker 02:
ICE AVEA, for example,

[00:52:58] Speaker 14:
We look at the facts in each case, right?

[00:53:01] Speaker 14:
We look at it in light of the law.

[00:53:03] Speaker 14:
That's what we're trying to do here.

[00:53:05] Speaker 14:
Let me ask you, do you concede that no warning was given by the officer?

[00:53:10] Speaker 02:
No verbal warning was given, but there was an actual physical warning.

[00:53:14] Speaker 02:
The case is addressing warning.

[00:53:15] Speaker 14:
What was the physical warning?

[00:53:16] Speaker 14:
I want to know.

[00:53:17] Speaker 14:
When you say, you agree there's no verbal warning.

[00:53:19] Speaker 14:
She didn't say, I'm going to shoot you if you don't stop, correct?

[00:53:23] Speaker 14:
That's correct.

[00:53:23] Speaker 14:
Go ahead, Judge Warholson.

[00:53:24] Speaker 11:
I said, what was the physical warning if there was no verbal warning?

[00:53:28] Speaker 02:
So the cases, the origination of the warning was for cases where officers, for example, snipers off in a distance where a suspect didn't realize they had a gun pointed at them, that they should be warned and have an opportunity to comply.

[00:53:41] Speaker 02:
Here, Officer McBride is standing there in a full uniform, getting out of a police vehicle with a gun trained on the suspect, giving him verbal commands, speaking in- I thought you said there were no verbal commands.

[00:53:52] Speaker 02:
She's giving him verbal commands to stop, drop the knife, but not the verbal command of stop or I will shoot.

[00:53:58] Speaker 14:
What's your best case for the physical warning, for that to be a precedent here, for us to allow that to be a warning?

[00:54:10] Speaker 02:
So Harris versus Roderick is the case that discusses the sniper and is where it starts to develop it to make sure that there's notice to a suspect that there actually is, they're warned that they're about to be shot.

[00:54:23] Speaker 02:
Where an officer stands there and is giving directions and a suspect is advancing, first of all, it's not feasible to give a warning where you have things developing in a total of nine seconds from shot one to shot six.

[00:54:36] Speaker 02:
And that's from the time she sees the suspect.

[00:54:39] Speaker 14:
Well, she didn't give a warning from the very beginning.

[00:54:44] Speaker 02:
You're right.

[00:54:44] Speaker 02:
She perceived that he was going to comply with her commands as he came out from around the vehicle.

[00:54:52] Speaker 14:
And was the crime at issue, how severe was the crime at issue?

[00:54:55] Speaker 02:
Depends on which crime you look at.

[00:54:56] Speaker 02:
The first one is driving under the influence of methamphetamine, causing a severe crash, causing severe bodily injury to multiple people.

[00:55:05] Speaker 02:
There's the attempt to, there's advancing on an officer with a blade, or I think it's a penal code 417, I believe, is the actual statute.

[00:55:14] Speaker 02:
And those can be felonies.

[00:55:16] Speaker 02:
And then there's officers.

[00:55:17] Speaker 14:
And then was he actively resisting arrest or fleeing?

[00:55:21] Speaker 02:
I would not say fleeing, but I would say actively resisting by refusing to comply.

[00:55:25] Speaker 02:
Arrest?

[00:55:25] Speaker 02:
Not arrest.

[00:55:25] Speaker 02:
No, Your Honor.

[00:55:26] Speaker 02:
But it would be a 148 violation.

[00:55:29] Speaker 04:
Can I ask about the state law claim?

[00:55:31] Speaker 04:
So the district court... Yes, sir.

[00:55:32] Speaker 04:
The district court said there was no constitutional violation, and because there was no constitutional violation, the state law claims failed.

[00:55:40] Speaker 02:
Yes.

[00:55:41] Speaker 04:
You agree that that is misapplication of the law?

[00:55:45] Speaker 02:
No, sir.

[00:55:46] Speaker 04:
You think that if there's no constitutional violation that there's no state law claims either?

[00:55:51] Speaker 02:
So that's a very broad statement.

[00:55:53] Speaker 02:
The Fourth Amendment, the analysis for Fourth Amendment is coterminous with the analysis under state law.

[00:55:58] Speaker 02:
No, that's not true.

[00:55:58] Speaker 04:
The only difference is... No, that's not true.

[00:56:01] Speaker 04:
We've been very clear that it's much more robust under state law than the Fourth Amendment, especially in California.

[00:56:07] Speaker 02:
And that's what I was getting to.

[00:56:08] Speaker 02:
The difference is for the Hays application to look at tactics which can be considered.

[00:56:13] Speaker 04:
Yeah, but the district court didn't do that.

[00:56:15] Speaker 04:
The district court said because there was no Fourth Amendment violation, there's no state law violation.

[00:56:20] Speaker 02:
Because plaintiffs never advanced an argument that there was any tactical problems.

[00:56:24] Speaker 02:
Plaintiffs argument was focused on the use of lethal force, that the force itself.

[00:56:29] Speaker 02:
So since there was no argument at the trial court level or in the appellate briefs, that issue has been abandoned.

[00:56:35] Speaker 02:
There was no such claim advanced under state law that would trigger haze and a different application.

[00:56:42] Speaker 04:
I see.

[00:56:42] Speaker 04:
So you're basically making a waiver argument that they didn't argue a distinction, and so therefore the district court was justified

[00:56:50] Speaker 04:
The district court misstated the law.

[00:56:57] Speaker 04:
It cannot be the law that just because you don't have a constitutional violation that you don't have a state tort.

[00:57:04] Speaker 04:
That's not the test.

[00:57:05] Speaker 02:
that is if the claim is limited to... I understand your new one.

[00:57:09] Speaker 03:
I understand the district court's ruling was that the parties agreed that on the facts of this case, there was not a relevant difference between federal and California law.

[00:57:18] Speaker 03:
Is that a fair statement of how it was proposed?

[00:57:20] Speaker 02:
That is a fair statement, and it also encompassed the fact that plaintiff had not pled or prosecuted a claim for violation of any California violations other than the ultimate use of force.

[00:57:30] Speaker 02:
And the ultimate question was simply, was the use of force

[00:57:34] Speaker 04:
Thank you.

[00:57:36] Speaker 04:
That's a helpful clue for you.

[00:57:37] Speaker 11:
Council, the case you cited for the physical warning, is it Harris versus Roderick?

[00:57:43] Speaker 02:
I believe that's correct, Your Honor.

[00:57:45] Speaker 11:
Could you point me to the precise language in that case that talks about the components of a physical warning?

[00:57:53] Speaker 02:
Your honor, I'm sorry, but the case does not specifically address a physical warning.

[00:57:57] Speaker 02:
What the case does is it encompasses and addresses why a warning is necessary, and it links back to Tennessee v. Gardner and the principle of notice.

[00:58:06] Speaker 11:
I thought Judge McGee asked you for the case that talked about

[00:58:10] Speaker 11:
the physical warning, and this is the case you cited to.

[00:58:13] Speaker 02:
You asked me for the best case, and unfortunately, this is your best case?

[00:58:16] Speaker 02:
There is not a case that directly addresses the physical warning at this time.

[00:58:20] Speaker 02:
All right, thank you, counsel.

[00:58:21] Speaker 02:
What there is is one that talks about this is the principle as we see it and as we advance it.

[00:58:26] Speaker 13:
most of our warning cases where the warning is an issue is where something happens very very quickly in the interaction which is not really quite true here given that there was time in which she was telling uh... mister hernandez that he needed to stop drop the weapon i'm paraphrasing but there were interactions of that nature before the the shooting

[00:58:44] Speaker 13:
So this is a little different than a lot of the other warning cases we've had where something happens extremely quickly.

[00:58:49] Speaker 02:
Not necessarily, because the question is when did he become an imminent threat and when would a warning be given?

[00:58:55] Speaker 02:
When he rounds the back of the truck and starts walking towards her, he's not yet an imminent threat.

[00:59:00] Speaker 02:
Is he a threat?

[00:59:01] Speaker 02:
Absolutely.

[00:59:02] Speaker 02:
But until he's close to a sufficiently clear distance, at that point the officer believed he was only 15 feet away.

[00:59:08] Speaker 02:
Now, she misjudged the facts, and again, the Supreme Court has made clear that a mistake of fact is reasonable and still give rise to objective reasonableness.

[00:59:18] Speaker 02:
But going to the second component, under qualified immunity, no case has ever articulated specific language or whether there needs to be a verbal versus some other warning.

[00:59:27] Speaker 02:
So officers are not on fair notice of what exactly should be done in these types of situations.

[00:59:33] Speaker 02:
And when we're talking about

[00:59:35] Speaker 02:
Literally five and a half to six seconds from shot one to six is one continuous folly where she's continuing to assess There is simply no case that's ever said this is you have to give a warning two seconds I'm not necessarily disagreeing with you I'm what I'm saying is that the nature of her comments given the context or are fairly viewed as in the nature of a warning and

[01:00:00] Speaker 15:
I'm sorry.

[01:00:01] Speaker 15:
I didn't hear the last part.

[01:00:02] Speaker 13:
It's quite all right.

[01:00:03] Speaker 04:
Can I ask about the 14th Amendment?

[01:00:05] Speaker 04:
Yes, sir.

[01:00:07] Speaker 04:
I guess you were relying on our caseload.

[01:00:09] Speaker 04:
We've said that there is a 14th Amendment claim, potentially, for a parent's

[01:00:17] Speaker 04:
companionship to their adult child.

[01:00:20] Speaker 04:
If we think that that should not be the law because every other circuit has rejected that principle, would this be the proper case to revisit that?

[01:00:31] Speaker 04:
And if so, I mean, it's a tough one because you didn't raise it before the panel because you were bound by prior circuit precedent, but we're not bound by that at en banc.

[01:00:40] Speaker 04:
Should we ask for supplemental briefing on that, or is that not an argument that you are interested in pursuing?

[01:00:46] Speaker 02:
So the problem is, is that plaintiff has waived the claim.

[01:00:48] Speaker 02:
It's not been advanced or prosecuted through a court of appeal.

[01:00:51] Speaker 04:
No, you wouldn't be raising the claim saying plaintiff did advance the 14th Amendment claim.

[01:00:59] Speaker 04:
It seems like you'd be in the position to say you don't have one because you don't fit.

[01:01:04] Speaker 02:
I think this court would have discretion to make that decision, either sue or sponsor.

[01:01:08] Speaker 04:
Do you have a supplemental briefing on that?

[01:01:11] Speaker 02:
I think it would be within the court's discretion if it wanted to, but I think the court ultimately has the discretion to do as it sees fit on this.

[01:01:18] Speaker 02:
We would request that the court adopt a standard that confirms that the continued use of lethal force must take into account an officer's opportunity to perceive a change in circumstance, and that the one second at most between shots four and five simply is not sufficient.

[01:01:37] Speaker 02:
We would ask that the trial court's decision be affirmed.

[01:01:39] Speaker 02:
Thank you.

[01:01:40] Speaker 14:
Thank you Mr. Gilbert.

[01:01:50] Speaker 12:
There are three questions before this court, and I'll address Judge Nelson's question.

[01:01:55] Speaker 12:
First, what is the standard for determining the particularity of which right has to be established?

[01:01:59] Speaker 12:
I think it's important that you say that the key question is, is there a meaningful factual difference between this case and precedent so that a reasonable officer doubts the constitutional rule?

[01:02:09] Speaker 12:
Anything else for turning qualified immunity to absolute immunity?

[01:02:12] Speaker 12:
Second, what is the precedent here?

[01:02:14] Speaker 12:
Judge Nguyen, you quoted from Zion, but Zion doesn't stand alone.

[01:02:18] Speaker 12:
Opposing counsel quotes Plumov versus Rickard, but he stops too soon.

[01:02:22] Speaker 12:
Plumov versus Rickard, 5-72 at 7-77 says, this would be a different case if the petitioners had initiated a second round of shots after the first round had clearly incapacitated Rickard.

[01:02:34] Speaker 12:
This court in Taboras versus City of Honey Beach says, when an officer is shot and somebody's incapacitated, the officer has the duty to reassess, not keep shooting.

[01:02:43] Speaker 12:
And this court said the same thing in Tam versus City of Barros, 976 F3 at 1002.

[01:02:48] Speaker 04:
The problem with Taboras, of course, is it wasn't a Fourth Amendment case.

[01:02:52] Speaker 04:
It was a California state, it looks like.

[01:02:54] Speaker 12:
I understand, but this court has made clear when somebody is down on the ground, you can't keep shooting.

[01:03:01] Speaker 12:
You have to reassess.

[01:03:02] Speaker 12:
So the fact that it was one second really cuts against the city, because it shouldn't have been one second.

[01:03:08] Speaker 12:
The officer just seen whether there was a danger.

[01:03:10] Speaker 12:
And that leads to the third question.

[01:03:12] Speaker 12:
Is there a meaningful factual difference between this case and others?

[01:03:16] Speaker 12:
What opposing counsel keeps saying is that the individual tried to get up.

[01:03:20] Speaker 12:
Whether he was trying to get up is really a factual question that gone to the jury.

[01:03:23] Speaker 12:
But the fact that he even tried to get up doesn't mean that he put anybody, not the officer, anybody else in danger.

[01:03:30] Speaker 12:
And therefore, under this decision, of course, decisions like in Sanderlin versus Dwyer and others, these should have been questions for the jury to resolve.

[01:03:38] Speaker 12:
Judge Nelson, no one at any point in this litigation asked this court to reconsider its precedent that says that parents have a claim under the due process clause.

[01:03:48] Speaker 12:
Under basic rules of party presentation, it's inappropriate for this court to do so.

[01:03:53] Speaker 04:
But they were bound by precedent at that point.

[01:03:55] Speaker 04:
That's why I wonder whether we should, I mean, this seems like a principle of law, and I wonder if we were going to go this far, address that, whether we should ask for supplementary briefing.

[01:04:04] Speaker 04:
But your argument, I assume, would be no, because it's already been

[01:04:07] Speaker 12:
But I'm out of time.

[01:04:09] Speaker 12:
May I go ahead and finish?

[01:04:10] Speaker 12:
May.

[01:04:12] Speaker 12:
Your Honor, party presentation is important.

[01:04:14] Speaker 12:
They could have certainly suggested at any point, including the en banc briefing, that this is an important issue for this court to resolve.

[01:04:22] Speaker 12:
No point was it raised, but certainly it shouldn't be decided with this court without supplemental briefing.

[01:04:27] Speaker 14:
Thank you.

[01:04:28] Speaker 14:
Thank you.

[01:04:35] Speaker 14:
You used all of your time.

[01:04:37] Speaker 14:
I'll give you one minute.

[01:04:39] Speaker 08:
but I wanted to ask the court, thank you.

[01:04:42] Speaker 08:
I think that the professor has summarized pretty well what I was going to say, but there's one thing remaining, stair decisis compels controlling authorities, Zion applies to this case, very simple.

[01:04:58] Speaker 08:
So we need to follow stair decisis and uphold that the very basic principle

[01:05:06] Speaker 08:
Is an officer on notice that if you shoot at a suspect, trained officer, we're talking about reasonable police officer, we're not talking about subjective officer who scared 19-year-old officer, we're talking about reasonable police officer.

[01:05:22] Speaker 08:
Is she on notice that when you shoot four times, the person is already on the ground, are you gonna continue shooting or you're gonna stop, recess, and see if the threat is going to continue?

[01:05:35] Speaker 08:
This man was not a threat, was not a threat at the time even after the first two shots.

[01:05:42] Speaker 08:
The nearest bystander was so far from him and he was 41 feet from the officer.

[01:05:47] Speaker 08:
Thank you.

[01:05:48] Speaker 08:
Thank you.

[01:05:49] Speaker 14:
Thank you very much.

[01:05:50] Speaker 14:
Thank you all very much for your oral argument presentations.

[01:05:54] Speaker 14:
The case of a state versus Daniel Hernandez versus the city of Los Angeles is now submitted and we are adjourned.

[01:06:01] Speaker 14:
Thank you very much.