[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:01] Speaker 03:
I'm David Newdorf.

[00:00:03] Speaker 03:
May it please the Court?

[00:00:05] Speaker 03:
I am representing Appellants Abdelaziz and Marin Coronel.

[00:00:10] Speaker 03:
And with the Court's permission, I wish to reserve three minutes for rebuttal.

[00:00:15] Speaker 03:
And as this Court may go directly to the second prong of a qualified immunity analysis, that's where I'm going to start.

[00:00:24] Speaker 03:
It's what I believe is the Appellant's strongest case, and it's what I spend most time on.

[00:00:30] Speaker 03:
Question is whether the officers violated any clearly established law or right when they engaged in a high-speed chase of a criminal suspect who lost control of his car and struck injured innocent bystanders.

[00:00:45] Speaker 03:
Then second, I'll address the question of whether there was a clearly established right or clearly established law

[00:00:52] Speaker 03:
when officers allegedly failed to summon emergency medical aid after the plaintiffs had been struck and injured by a fleeing criminal suspect.

[00:01:02] Speaker 00:
Yeah, so I'd like to ask you a question about the claim of intent to harm, the intent to harm the driver of the vehicle that crashed.

[00:01:16] Speaker 00:
And specifically, my question is, there are cases certainly that say if there is a deliberate intent to harm, and that's the sole reason,

[00:01:29] Speaker 00:
that would state a claim against an officer.

[00:01:36] Speaker 00:
So my question is, what happens in a dual motivation case?

[00:01:40] Speaker 00:
There is some legitimate law enforcement purpose, but in addition, the officers have a deliberate purpose to harm.

[00:01:51] Speaker 00:
Does that state a claim?

[00:01:54] Speaker 03:
First of all, Your Honor, I have to address two different parts of that because I have a different view than is embedded in the question.

[00:02:03] Speaker 03:
First, the justification is the argument of the plaintiffs.

[00:02:09] Speaker 03:
And under the Lewis case and this court's decisions under the Lewis case, the initial justification of the pursuit is justified by the criminal

[00:02:23] Speaker 03:
conduct.

[00:02:25] Speaker 03:
So the pursuing a criminal suspect, initiating that pursuit under Lewis and under this court's decisions, it's justified from the outset.

[00:02:35] Speaker 00:
It is except that the cases are sort of weirdly in the negative.

[00:02:40] Speaker 00:
They say you can't state a claim

[00:02:44] Speaker 00:
if there is no intent to harm.

[00:02:47] Speaker 00:
But they don't say, at least I don't read them to say, you can't state a claim unless the only purpose is to cause harm.

[00:02:58] Speaker 03:
Your Honor, I don't view this or the analysis of this court as dealing with multiple motivations.

[00:03:09] Speaker 03:
They're two separate things.

[00:03:13] Speaker 00:
But this seems to be such a case.

[00:03:15] Speaker 00:
As I read the complaint, there was an acknowledgement that there was a law enforcement-related chase that was overdone.

[00:03:27] Speaker 00:
I mean, there was, I guess, an alleged traffic violation or something small in this high-speed chase.

[00:03:33] Speaker 00:
But that is a law enforcement purpose.

[00:03:37] Speaker 00:
But the complaint also says that there was specific intent to harm the suspect.

[00:03:45] Speaker 00:
And there's factual material to support that.

[00:03:49] Speaker 00:
For example, saying, I hope the driver dies.

[00:03:54] Speaker 00:
So I think we're faced with that dual motivation.

[00:03:58] Speaker 00:
And I'm not sure what the cases say about it.

[00:04:02] Speaker 00:
I'm unsure what the right answer is.

[00:04:04] Speaker 03:
There is no case in this court or any other circuit that I've seen that analyzes a bystander police pursuit injury case under the 14th Amendment as a dual motivation.

[00:04:19] Speaker 03:
And the reason for that is, under the Lewis case, the initial pursuit, initiating the pursuit, is justified

[00:04:29] Speaker 03:
when you are chasing a criminal suspect.

[00:04:33] Speaker 03:
And most of these cases are minor violations driving recklessly.

[00:04:38] Speaker 03:
And then they result in injury.

[00:04:43] Speaker 03:
What is the legal issue in this case that has never been decided by the Ninth Circuit or the US Supreme Court is as follows.

[00:04:51] Speaker 03:
Lewis states that intent to injure the suspect

[00:04:56] Speaker 03:
is required under the intent to harm standard, which is the Lewis standard.

[00:05:01] Speaker 00:
Right.

[00:05:01] Speaker 00:
And that's what's alleged in this case, that there was a specific intent to harm the suspect.

[00:05:07] Speaker 03:
Correct.

[00:05:07] Speaker 03:
But the Lewis case was not analyzed as a bystander case.

[00:05:12] Speaker 03:
And in the bystander cases, none of them in this court has specifically addressed in this circuit the question of whether, in a bystander case, the 14th Amendment

[00:05:26] Speaker 03:
requires the plaintiff to allege and prove intent to harm the bystanders, or whether intent to harm the fleeing suspect is sufficient.

[00:05:39] Speaker 03:
And that is the legal issue that needs to be decided in this case.

[00:05:42] Speaker 04:
Well, isn't qualified immunity about whether the conduct the officers are doing is unconstitutional?

[00:05:50] Speaker 04:
And if it would be unconstitutional as to the driver, then at least the officers are engaging in unconstitutional

[00:05:56] Speaker 04:
conduct.

[00:05:57] Speaker 04:
Why is that not the right way to look at it?

[00:05:59] Speaker 03:
Let me give an analogy.

[00:06:01] Speaker 03:
There are cases of excess of force that can be brought under the Fourth Amendment, or if there wasn't a seizure involved, it could be brought by a relative, a family member, under the Fourteenth Amendment.

[00:06:17] Speaker 03:
And the intents are very different.

[00:06:21] Speaker 03:
14th Amendment standard is the highest standard for civil liability under Section 1983 and intent to harm.

[00:06:28] Speaker 03:
So knowledge that if you intended to harm the fleeing suspect and the fleeing suspect is the plaintiff, if that's the law, the fact that the fleeing suspect could have stated a claim under the 14th Amendment doesn't mean that the bystanders could state a claim under the 14th Amendment.

[00:06:51] Speaker 03:
That issue is the very issue that has never been decided in the Supreme Court or this court, but it has been decided in three out-of-circuit cases.

[00:07:02] Speaker 03:
And that's the key of the clearly established law.

[00:07:07] Speaker 03:
So the three cases that have been established, that have been decided, and address this issue of what is the measure of the intent in a bystander claim is that the officers

[00:07:20] Speaker 03:
intent as to the plaintiff bystanders or could it be, can you state a bystander claim without alleging and proving that the officer had an intent to harm the bystanders?

[00:07:34] Speaker 03:
And there are three out-of-circuit cases that specifically address this question.

[00:07:41] Speaker 03:
And they've all come down on the side that a bystander claim under the 14th Amendment in a police pursuit case requires plaintiffs to allege and prove that the officer is intended to harm the bystander plaintiffs.

[00:07:58] Speaker 03:
Those three cases, all outside this circuit,

[00:08:02] Speaker 03:
The oldest one is Hellseth versus Birch, which is a 2001 decision out of the Eighth Circuit.

[00:08:10] Speaker 02:
So you accept that intent to harm is properly pled in the complaint?

[00:08:16] Speaker 03:
No, because the specific allegation of the complaint is that the officers intended to harm the fleeing suspect.

[00:08:25] Speaker 02:
This is not a case brought by the suspect.

[00:08:27] Speaker 02:
So you accept that as properly pled?

[00:08:30] Speaker 03:
I accept that is exactly what the complaint says.

[00:08:33] Speaker 02:
Well, I mean, but you can't just say it.

[00:08:35] Speaker 02:
You have to actually plead facts that make that plausible.

[00:08:41] Speaker 03:
That's true.

[00:08:42] Speaker 03:
And we're not challenging the plausibility.

[00:08:45] Speaker 03:
The legal issue raised on this is whether.

[00:08:48] Speaker 02:
I just had a question.

[00:08:49] Speaker 02:
It pleads that the Oakland officers purposely cause the suspect to lose control of its vehicle and crash into cars.

[00:08:55] Speaker 02:
I don't know how.

[00:08:58] Speaker 02:
Is there any facts to support that?

[00:08:59] Speaker 02:
How is that plausible?

[00:09:01] Speaker 00:
Well, if you looked at it, they also said that they were satisfied that the driver was injured and hoped he would die.

[00:09:08] Speaker 02:
Right.

[00:09:08] Speaker 02:
But that was after he crashed and presumably killed a bunch of people.

[00:09:12] Speaker 02:
So I'm just curious, how is that plausible that the officers would purposely cause him to lose control and crash?

[00:09:25] Speaker 03:
And even if this were a case by the fleeing suspect, that allegation is inherently

[00:09:31] Speaker 03:
uh... implausible uh... in in in that so then the allegation is that we don't we don't take purposely uh... you know that's a mental state we don't you just because they started you don't accept that you need facts to prove that yes and and and uh... arguably arguably what judge graver has referred to in the complaint

[00:10:00] Speaker 03:
It's some evidence of malice towards the driver wishing that he would die.

[00:10:06] Speaker 02:
So we should accept that the officers had intent to harm the defendant.

[00:10:13] Speaker 02:
I forget the defendant's name, the suspect.

[00:10:16] Speaker 03:
And the legal issue decided by the district court that we take issue with is the holding of the district court that

[00:10:28] Speaker 03:
not based on any decision of this circuit or the US Supreme Court, that a bystander plaintiff in a police chase case brought under the 14th Amendment can establish their case without alleging and proving the officers intended to harm the bystander plaintiff.

[00:10:51] Speaker 03:
The allegation is accepted that there was an intent to harm the fleeing suspect.

[00:10:58] Speaker 03:
Even though that is inherently implausible, there is that allegation that Judge Graber referred to.

[00:11:03] Speaker 03:
Even though that seems difficult to prove, the legal question is, is that even enough?

[00:11:10] Speaker 03:
Or as other circuits have held, as other district courts have held, that the bystander plaintiffs to State of 14th Amendment claim must allege

[00:11:20] Speaker 03:
and intend to harm the bystander plaintiff.

[00:11:23] Speaker 04:
So I need to ask a question that you're probably going to fight me, because let's just put away the bystanders for a second.

[00:11:29] Speaker 04:
Let's just pretend for a second that this is a claim by the suspect, because I'm trying to understand how this Lewis language works.

[00:11:37] Speaker 04:
So there's language in Lewis that says, only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking the conscience.

[00:11:47] Speaker 04:
So you just told us.

[00:11:49] Speaker 04:
that there is a purpose to cause harm that we can assume from the allegations.

[00:11:52] Speaker 04:
And I think it's fair that you did, given that, say, we hope he dies.

[00:11:56] Speaker 04:
But can we assume from this complaint that the purpose to cause harm is unrelated to the legitimate object of arrest?

[00:12:07] Speaker 03:
Your Honor, the legitimate object to arrest is decided.

[00:12:14] Speaker 03:
at the moment they face that split second decision whether or not to chase a fleeing criminal suspect on this court.

[00:12:23] Speaker 04:
I know that cases have said that chasing is fine.

[00:12:29] Speaker 04:
But this particular complaint talks about chasing without lights or sirens.

[00:12:33] Speaker 04:
And then it also says there's a police department policy against turning off your light and siren.

[00:12:39] Speaker 04:
So can you tell me why that

[00:12:42] Speaker 04:
isn't more conduct than a chase.

[00:12:45] Speaker 04:
Why that isn't an additional thing that matters.

[00:12:47] Speaker 03:
And it is also black letter law under Section 1983 cases that violations of departmental policy do not establish constitutional violations.

[00:12:56] Speaker 04:
I agree that is true also.

[00:12:58] Speaker 03:
And in fact, in the Lewis case, there are allegations that the chase did not conform to departmental policy.

[00:13:04] Speaker 03:
And nonetheless, it was not a sufficient claim

[00:13:10] Speaker 03:
because there was no allegation that there was an intent to harm anyone.

[00:13:15] Speaker 03:
OK.

[00:13:16] Speaker 03:
But here we have that.

[00:13:17] Speaker 04:
So this is my question.

[00:13:18] Speaker 04:
We have the intent to harm here.

[00:13:21] Speaker 04:
I agree with you that the fact that it's a policy isn't dispositive.

[00:13:25] Speaker 04:
But the fact that there is a policy against turning off your light and siren, why doesn't that create an inference that you only do that for a purpose to harm and not for a legitimate law enforcement reason?

[00:13:40] Speaker 04:
Can you tell me what, I agree the policy isn't enough in itself, but does the policy create an inference that they did this in a particularly dangerous way just for the purpose to harm?

[00:13:52] Speaker 03:
The Lewis case, as well as out of circuit cases, have all stated that the question of whether a chase is advisable, of whether it conforms to policy, of whether it was negligent, careless, or reckless disregard does not state a claim under the 14th Amendment.

[00:14:11] Speaker 03:
The specific cases that established the clearly established law, we believe, or at a minimum established that it was not clearly established that the plaintiffs, excuse me, the police officers violated any clearly established right of law.

[00:14:29] Speaker 03:
For example, 2009 case out of the 10th Circuit.

[00:14:34] Speaker 03:
Ellis versus Ogden states, when an officer is in a high pressure situation,

[00:14:40] Speaker 03:
where time is of the evidence, there must be evidence of a purpose to cause harm unrelated to the legitimate object of the arrest to satisfy the element of arbitrary conduct shocking the conscience.

[00:14:52] Speaker 03:
And here's the key point, the legal issue in this case never decided in this circuit or in the Supreme Court.

[00:14:59] Speaker 03:
The estate failed to allege sufficient facts to support an intent to physically harm or worsen the legal plight of the injured party.

[00:15:08] Speaker 00:
And since this was a bystander case... Excuse me, I have a question about the bystander issue.

[00:15:16] Speaker 00:
Why doesn't Onassian run counter to your argument?

[00:15:20] Speaker 00:
That's our own case from 1999.

[00:15:22] Speaker 03:
Well, first of all, it didn't address the specific issue of

[00:15:28] Speaker 00:
It said the bystander can recover.

[00:15:33] Speaker 00:
And in that case, they didn't, as it turned out, because the activity did not demonstrate the requisite mental state.

[00:15:43] Speaker 00:
But it pretty clearly says that a police officer has an obligation to non-suspects in the high-speed chase.

[00:15:51] Speaker 00:
So it seems to me that we have clearly established law on that relationship.

[00:15:57] Speaker 00:
Now, that doesn't say anything about the merits, just as to them being a proper plaintiff.

[00:16:04] Speaker 03:
I disagree.

[00:16:06] Speaker 03:
The result in Onassian was based on the facts of that case.

[00:16:10] Speaker 03:
Unlike this case, there was no allegation of intent to harm anyone.

[00:16:14] Speaker 03:
The ruling of Onassian, nonetheless, was that Lewis controls bystander cases.

[00:16:20] Speaker 03:
Again, in the Lewis case, there was no allegation of the officers' intent to harm either a fleeing suspect or an innocent bystander.

[00:16:30] Speaker 00:
That's the merits of the case on Onassian.

[00:16:33] Speaker 03:
No, that's the legal issue.

[00:16:35] Speaker 03:
That is the legal issue.

[00:16:37] Speaker 00:
Well, they started with whether the non-suspect could sue, basically.

[00:16:46] Speaker 00:
And the answer was, yes, if the behavior shocks the conscience.

[00:16:50] Speaker 00:
And then the court said, well, it doesn't shock the conscience, so they lose.

[00:16:54] Speaker 00:
But it did establish, it seems to me, the principle that if you do show something that shocks the conscience, that is you meet the

[00:17:05] Speaker 03:
intent to harm test that a bystander can can recover I guess I don't understand how you read it differently than that your honor because cases stand for the facts and the facts necessary to support the judgment there's no case that is addressed no bystander case well we have a reasonable dicta rule in our court that actually says that if there's language in a case that's reasoned it is binding whether it was necessary to the holding or not but it's not

[00:17:36] Speaker 03:
even dicta in the sense that three circuit courts, not including this one, have decided that the intent to harm is directed

[00:17:49] Speaker 03:
to the plaintiff.

[00:17:51] Speaker 00:
That doesn't really answer the question of what onassian means.

[00:17:56] Speaker 00:
To me it seems maybe even necessary to say that these people can state a claim and then we examine the claim.

[00:18:05] Speaker 00:
It wouldn't make sense to say we're going to look at whether it shocks the conscience if they can't even be plaintiffs.

[00:18:11] Speaker 00:
So regardless of whether you view it as reasoned

[00:18:15] Speaker 00:
dictum or as a holding, our circuit seems to have a different view than the other ones.

[00:18:23] Speaker 00:
So I want you to assume for the purpose of this question that Onassian stands for what I'm asserting.

[00:18:34] Speaker 00:
And other circuits have a completely different view.

[00:18:37] Speaker 00:
In terms of an officer who works in this circuit,

[00:18:44] Speaker 00:
isn't Ninth Circuit law, if it's clear, the clearly established law that they're deemed to have to follow.

[00:18:54] Speaker 03:
Well, that does state qualified immunity that clearly established relies on controlling authority, which would be the Ninth Circuit or the Supreme Court.

[00:19:03] Speaker 03:
Yet I disagree that the- No, I understand you read O Nassim differently than I do.

[00:19:09] Speaker 03:
As did the trial court here believe that the issue was

[00:19:14] Speaker 03:
and it decided against the officers, the issue as viewed in the trial court is, can a bystander plaintiff state a 14th Amendment claim absent an allegation of intent, allegation and proof of an intent to harm the plaintiff bystander?

[00:19:35] Speaker 00:
And we have de novo review, correct?

[00:19:37] Speaker 03:
Pardon?

[00:19:38] Speaker 00:
We have de novo review, do we not?

[00:19:40] Speaker 03:
You do.

[00:19:41] Speaker 03:
It's a purely legal issue.

[00:19:44] Speaker 04:
So this is why I was focused on, let's put aside the bystander and pretend that it's the driver.

[00:19:48] Speaker 04:
I'm trying to figure out this shocks the conscience question that Onassian went to.

[00:19:53] Speaker 04:
Here, is your argument that once there is any reason for a chase, there can never be conduct in the chase that shocks the conscience?

[00:20:06] Speaker 03:
That it only shocks the conscience if

[00:20:09] Speaker 03:
there is an intent to harm the plaintiff, whether that plaintiff being... OK, let's pretend the plaintiff is the driver and answer my question.

[00:20:16] Speaker 04:
Is there conduct that can be shocking the conscience in a chase that has a law enforcement purpose but has other things going on with it that somehow could shock the conscience?

[00:20:26] Speaker 04:
Is there such a case?

[00:20:27] Speaker 03:
And the answer is yes.

[00:20:29] Speaker 03:
And there has not been a case that found police officers.

[00:20:35] Speaker 03:
There's only been a

[00:20:36] Speaker 03:
A couple of cases out of circuit that have ever found police officers potentially liable to a bystander.

[00:20:44] Speaker 04:
OK, I want you to pretend the plaintiff is the suspect.

[00:20:47] Speaker 04:
And let's just talk about shocking the conscience of the chase, the conduct of the chase.

[00:20:53] Speaker 04:
So you said, I think, that there can be such a bad chase that it would shock the conscience.

[00:20:58] Speaker 03:
Yes.

[00:20:59] Speaker 03:
As stated in Lewis, as stated in Onossian, as stated in the Bing with a Bingay case,

[00:21:07] Speaker 03:
Shock the conscience in a 14th Amendment police pursuit case means that you satisfy the highest level intent, which is intent to harm the driver.

[00:21:18] Speaker 03:
Your question was limited to a fleeing suspect, so the fleeing driver.

[00:21:24] Speaker 03:
There would have to be intent to harm the fleeing driver, but the whole issue is

[00:21:30] Speaker 03:
What's the measure of the officer's intent when it's a bystander case?

[00:21:35] Speaker 03:
And that was the issue as viewed by the trial court below, which found that a bystander claim.

[00:21:41] Speaker 04:
But we're on de novo review, so we don't care what the trial court below.

[00:21:44] Speaker 04:
Tell us what the right answer of, I mean, it doesn't matter what the trial court below thought.

[00:21:48] Speaker 03:
The right answer is the answer drawn by both circuits in multiple cases that have looked at the specific issue of intent and bystander claims.

[00:21:59] Speaker 03:
And that's the Third Circuit.

[00:22:00] Speaker 03:
and the 10th Circuit, both of which have held in more than three cases that when the plaintiff is an injured, innocent bystander, the measure of the officer's intent necessary to shock the conscience under the 14th Amendment is the intent toward the plaintiff.

[00:22:21] Speaker 03:
In the bystander case, it's the intent towards the bystander that matters.

[00:22:26] Speaker 03:
That was the issue decided in the

[00:22:31] Speaker 03:
court below, which is incorrect.

[00:22:33] Speaker 04:
I think you're going around in circles now.

[00:22:34] Speaker 04:
I'm going to cut off your time.

[00:22:35] Speaker 04:
I'll still give you two minutes for rebuttal, but let's hear from the other side.

[00:22:52] Speaker 01:
Back so soon.

[00:22:57] Speaker 01:
Good morning again.

[00:22:57] Speaker 01:
May it please the court, Pat Wilma, for the estate of Lola Mania-Solakai.

[00:23:05] Speaker 01:
Your Honor, this is a case where two officers intended to harm a person without the object of arrest.

[00:23:15] Speaker 01:
which is the beginning and end of story in regards to how the court should decide.

[00:23:20] Speaker 01:
And the reason being is, Lewis?

[00:23:24] Speaker 04:
So sorry, I need to stop you there.

[00:23:25] Speaker 04:
So I don't know that arrest is the only legitimate law enforcement purpose that someone could ever have.

[00:23:32] Speaker 04:
So they may or may not have had a reason for arrest, but the Chase had a legitimate law enforcement purpose, yes?

[00:23:40] Speaker 01:
It could have been for a legitimate law enforcement purpose.

[00:23:48] Speaker 01:
And if you're asking about what I'm anticipating is the dual motive, can there be a reason for a law enforcement chase that also has a purpose to harm?

[00:23:57] Speaker 01:
And would that still state a claim if there's both?

[00:24:01] Speaker 01:
Is that what sort of you're getting at, which was how you opened the last?

[00:24:04] Speaker 01:
And the answer is yes.

[00:24:05] Speaker 01:
And the reason why we know that is because in Lewis, the court cited to Cechy v. Webb, the first Fifth Circuit appellate case to say, here's an example of where a purpose to harm would be able to survive, would be viable.

[00:24:19] Speaker 01:
And in Cechy v. Webb, two officers, I think it was three troopers,

[00:24:23] Speaker 01:
were following two suspects without their lights and sirens on.

[00:24:27] Speaker 01:
And then they went at high speed.

[00:24:29] Speaker 01:
So now the suspect's driving recklessly.

[00:24:32] Speaker 01:
And then at some later point in the chase, the two officers finally turned on their lights and sirens.

[00:24:38] Speaker 01:
They lose sight of the suspect.

[00:24:39] Speaker 01:
Later, the suspects get stopped at a roadblock.

[00:24:42] Speaker 01:
Officers get out of their car, arrest them.

[00:24:46] Speaker 01:
One gets pistol whips one of the plaintiffs.

[00:24:49] Speaker 01:
The other one doesn't get pistol whipped.

[00:24:51] Speaker 01:
And the court said there, the Fifth Circuit said,

[00:24:53] Speaker 01:
and the Supreme Court cited to as a case of purpose to harm, this is a case that would be able to proceed.

[00:24:58] Speaker 01:
And it did, in the Fifth Circuit, did uphold it as a due process violation.

[00:25:02] Speaker 01:
That's a case where they did have the dual motive.

[00:25:04] Speaker 01:
They had a reason to stop him, but they couldn't do it.

[00:25:06] Speaker 02:
The copper already happened in that case, right?

[00:25:09] Speaker 01:
It didn't happen yet.

[00:25:10] Speaker 01:
I thought you said they gave chase.

[00:25:12] Speaker 02:
And then he stopped at a checkpoint, and then he just went after he was arrested.

[00:25:16] Speaker 01:
Yeah, but the court analyzed was the chase, and I could read from it, but was the chase

[00:25:22] Speaker 01:
the way that they did the chase, would that call into question the motive of the officers?

[00:25:27] Speaker 01:
And they said, the factual, and I'm just going to quote, the factual development in this case could lead a jury to question whether Webb and Allison's car chasing actions were inspired by malice rather than merely careless or unwise excessive zeal so that it amounted to an abuse of official power that shocks the conscience.

[00:25:45] Speaker 01:
So the court found it on the car chase

[00:25:48] Speaker 01:
shocked the conscience, not the actions afterwards.

[00:25:51] Speaker 01:
And the passenger also had a claim based off the car chase, even though the passenger wasn't injured.

[00:25:57] Speaker 02:
What's wrong with the car chase in that case?

[00:25:58] Speaker 02:
It just seemed like a legitimate car chase.

[00:26:00] Speaker 01:
It wasn't a legitimate car chase because the officer had their license sirens off and were pulling up so close to the suspects that they thought it was a criminal trying to hurt them.

[00:26:10] Speaker 01:
And that was the testimony.

[00:26:11] Speaker 01:
So it was the manner in which they didn't let the suspects know that they were police and trying to pull them over.

[00:26:17] Speaker 01:
And essentially what Lewis said, inducing

[00:26:21] Speaker 01:
lawlessness, recklessness, and terrorizing, which is precisely what we have here.

[00:26:26] Speaker 01:
We have two officers in a much worse case, two officers that without their likeness.

[00:26:33] Speaker 02:
So this is in a Fifth Circuit case that's mentioned in a Supreme Court case.

[00:26:37] Speaker 01:
As an example of what would survive a due process clinic.

[00:26:41] Speaker 02:
I'm just wondering, would that create clearly established law?

[00:26:44] Speaker 02:
Because are all those facts and

[00:26:46] Speaker 02:
Process in the case is that in Lewis or was it a simple citation to it was a simple citation?

[00:26:53] Speaker 01:
Summarizing the intentional misuse of a vehicle being a basis for a due process claim Which is right here right no license sirens using a car to induce lawlessness terrorize and cause harm we have two officers here that did much worse they did they terrorized and

[00:27:08] Speaker 01:
by not using their sirens, not using their lights, and not only did that happen, when the person crashed, they saw that the suspect and the bystanders were injured, they then didn't even stop to do any sort of arrest, or therefore any... I just wanted to know, so your position, it would be that a footnote in Lewis creates clearly establishment referring to another case?

[00:27:31] Speaker 01:
That in Lewis itself Lewis isn't even is a passenger who brought the claim not even though not even the driver himself Lewis says The exception to the rule of immunity for car chases that proves it to be true It's the exception is if a plaintiff can show that the officer had an intent to harm So it says the car chase was initiated for whatever good reason they can claim but if there's an intent to harm that's shown unrelated to the object of arrest and

[00:27:59] Speaker 01:
Then that plaintiff, so Lewis itself says it on behalf of a passenger who is not the person that they were after, says there's a claim here.

[00:28:06] Speaker 01:
Therefore, Lewis is good.

[00:28:08] Speaker 01:
Onassian v. Block also puts them on.

[00:28:11] Speaker 01:
In Onassian v. Block, the language is outright clear.

[00:28:14] Speaker 01:
A police officer deciding whether to, if a police officer is justified in giving chase, that justification insulates the officer from constitutional attack, irrespective of who might be,

[00:28:29] Speaker 01:
be harmed or killed as a consequence of the chase.

[00:28:31] Speaker 01:
If you flip that and say if they're not justified and they show a purpose to harm, then anyone that's harmed as a result of that malicious intent, they're liable for.

[00:28:42] Speaker 02:
If you assume that those statements in Donatio is dicta, can dicta?

[00:28:47] Speaker 02:
I know we had the Ninth Circuit binding dicta rule, which is an outlier everywhere.

[00:28:52] Speaker 02:
But is there any case that says that dicta can be clearly established law?

[00:28:58] Speaker 01:
So yes, because it's saying the exact same, it's holding what it's holding, meaning if you're saying like, let's say, for example, let's take an excessive force case.

[00:29:11] Speaker 01:
If the trial court says, look, using a taser on someone in this circumstance, it would be unlawful, right?

[00:29:19] Speaker 01:
someone comes under a certain set of circumstances, then you have a case right after where an officer is shot under those same circumstances.

[00:29:28] Speaker 01:
Deadly force, right?

[00:29:29] Speaker 02:
Yes.

[00:29:30] Speaker 01:
The taser case would be clearly established law to say, hey, look, you can't even use a taser on this guy.

[00:29:36] Speaker 01:
Much less can you use excessive force.

[00:29:39] Speaker 02:
You're fighting the hypothetical of it being dicta, right?

[00:29:42] Speaker 02:
Because in your example, that's precise holding of first case and not the second case.

[00:29:46] Speaker 02:
But do an example where,

[00:29:49] Speaker 02:
the first case is purely dicta, and then does that provide the proper notice to create clearly established law in the second case?

[00:29:57] Speaker 01:
I guess I would have to... I know.

[00:29:59] Speaker 01:
It's a harder hypothetical to draw.

[00:30:00] Speaker 01:
The hypothetical is kind of so open, I'm not sure what you want me to do.

[00:30:04] Speaker 02:
Well, I'm just saying, assuming that, Onacio, those statements that are very helpful to you, I agree, are dicta, why should that provide

[00:30:14] Speaker 02:
How does that provide clearly established law?

[00:30:16] Speaker 02:
How does that provide notice to officers?

[00:30:19] Speaker 02:
Because, you know, when officers understand the case and they realize that that's not the precise holding of the case, because in that case there was no intent to harm, then how are they supposed to know, you know, read beyond that and say, oh, I can't, you know, harm to anyone can matter?

[00:30:36] Speaker 01:
Well, Your Honor, to be quite frank, Zion v. County of Orange, as well as

[00:30:44] Speaker 01:
I'll remember in a second.

[00:30:45] Speaker 01:
As well as AD versus California Highway Patrol, they say if you meet the purpose to cause harm standard itself, that in and of itself does not allow for qualified immunity.

[00:30:56] Speaker 01:
Because the standard is basically saying the officer is knowingly violating the law, the qualified immunity only applies to people that are, doesn't apply to people that are incompetent or knowingly violating the law.

[00:31:07] Speaker 01:
To meet the purpose to cause harm standard, you're saying, you're admitting that the officer knowingly violated the law.

[00:31:14] Speaker 00:
Well, there's also a question of what constitutes dicta.

[00:31:17] Speaker 00:
Because, for example, in a qualified immunity situation,

[00:31:23] Speaker 00:
If we were to hold in a given case that a certain pattern of conduct is a constitutional violation and then go on to say it was not clearly established, technically we didn't have to do that first part.

[00:31:45] Speaker 00:
We could just say we can assume it.

[00:31:47] Speaker 00:
but it wasn't clearly established, is that first statement dictum or a holding about what constitutes constitutional violation?

[00:31:58] Speaker 00:
You're saying if the court reaches several issues, and you could theoretically avoid deciding one in the chain of the reasoning,

[00:32:12] Speaker 00:
Does that make the avoidable one dictum or does it just make it another holding?

[00:32:18] Speaker 01:
It makes it another holding because you have to look at the decision in whole and any reasonable inferences from it.

[00:32:25] Speaker 01:
So it's not, that's what I was saying is to me it feels like saying you know you can, if you say the taser can't be used in this situation, well then you come back and you say oh well but the guy shot with a gun so he didn't know that he couldn't shoot the guy with a gun but he shot him with a taser.

[00:32:40] Speaker 01:
So what if he came back and he used Billy Club?

[00:32:45] Speaker 01:
Which is intermediate force, equal force.

[00:32:47] Speaker 01:
So then exactly, that's a great example.

[00:32:48] Speaker 01:
Exactly.

[00:32:49] Speaker 01:
That's my point.

[00:32:50] Speaker 01:
You think?

[00:32:51] Speaker 01:
Yeah, I think that's definitely clear.

[00:32:52] Speaker 02:
What about if he used pepper spray?

[00:32:54] Speaker 01:
Those are all intermediate forces.

[00:32:56] Speaker 01:
So you think the Taser case would govern pepper spray?

[00:32:59] Speaker 01:
Yes, because the court has already classified it as intermediate force.

[00:33:02] Speaker 00:
But that's not this case.

[00:33:04] Speaker 01:
It's not any technicals, obviously.

[00:33:07] Speaker 02:
I don't think the court has to reach it anyway.

[00:33:09] Speaker 02:
So we clearly have a rule that if you intend to harm the suspect, you are liable for damages for that suspect.

[00:33:15] Speaker 02:
But it's not necessarily the case.

[00:33:18] Speaker 02:
Why would you be on notice that you're also liable for everything else that happens?

[00:33:22] Speaker 02:
Because that's a separate question of liability, and that would change officer's actions ex ante.

[00:33:29] Speaker 01:
Two reasons.

[00:33:30] Speaker 01:
One, Onassian being and Moreland all said bystanders can recover if the officer shows intent to harm.

[00:33:36] Speaker 01:
Sure.

[00:33:36] Speaker 01:
OK.

[00:33:37] Speaker 01:
Fourth, is that every?

[00:33:38] Speaker 01:
But just assume that that was dictated.

[00:33:40] Speaker 01:
OK, let me give you, there is, there.

[00:33:42] Speaker 02:
No, I'm just asking like a common sense question.

[00:33:45] Speaker 02:
If you know that your intent to harm a suspect gives you liability for the suspect,

[00:33:49] Speaker 02:
Common sensibly, you're not necessarily on notice, and you're then on the hook for everything that happens.

[00:33:55] Speaker 02:
It's kind of this weird, those tort standards about proximate cause and all those things.

[00:34:01] Speaker 02:
You're not necessarily knowing that.

[00:34:02] Speaker 01:
Sure.

[00:34:03] Speaker 01:
Actually, that's an interesting question, because the district court in McGowan went through why it doesn't matter.

[00:34:11] Speaker 01:
Because at common law, once you show malicious and intentional intent,

[00:34:17] Speaker 01:
Because of the wanton nature of that intent, that person knows that the risk of injury to everyone for that conduct is super high.

[00:34:27] Speaker 01:
And so you expect, and the common law shows, that you will be liable for all those actions.

[00:34:31] Speaker 01:
It's like if I took a gun into a crowd and I just start shooting,

[00:34:36] Speaker 01:
Am I going to say, well, I didn't know I was going to hit these three people?

[00:34:39] Speaker 01:
Well, no.

[00:34:39] Speaker 01:
With the act of being so wanting to just open fire in the middle of a crowd, you expect to be liable and on notice.

[00:34:46] Speaker 01:
And the other- That seemed like a reasonable rule.

[00:34:47] Speaker 02:
I agree.

[00:34:48] Speaker 02:
I just, the question is notice.

[00:34:49] Speaker 02:
How is an officer supposed to know that?

[00:34:51] Speaker 02:
I mean, they don't, I presumably don't- Let me just- I'm just, one second.

[00:34:55] Speaker 01:
I'm just going to count.

[00:34:56] Speaker 01:
One, two, three, four, five, six, seven, eight circuits I cited to that all said once you meet purpose to harm standard,

[00:35:06] Speaker 01:
that there's no qualified immunity for you because of the very nature of the burden.

[00:35:12] Speaker 01:
No reasonable officer would think that I can purposely harm someone unrelated to an obvious rule.

[00:35:17] Speaker 01:
Yeah, like Hope V. Pelzer.

[00:35:19] Speaker 01:
Like Hope V. Pelzer.

[00:35:21] Speaker 01:
Does an officer need notice that they can see someone on the street, not like them, chase them down, beat them up, completely unrelated to a law enforcement objective, get back in their car and drive away?

[00:35:32] Speaker 01:
Do they need a case to tell them that?

[00:35:33] Speaker 01:
Of course not.

[00:35:34] Speaker 01:
Does an officer need a case to tell them that they can chain a guy to a, to a, to a pole in the middle of the prison yard like in Hope V. Pelster and leave him without water?

[00:35:42] Speaker 04:
Purpose to harm can't really be enough.

[00:35:45] Speaker 04:
So like, let's imagine someone is driving toward a schoolyard of kids and the only way to stop them is for the police officers to ram that car

[00:35:55] Speaker 04:
and kill the driver to stop them from hitting the schoolyard.

[00:35:58] Speaker 04:
That is purpose to harm, but it is a legitimate law enforcement purpose.

[00:36:01] Speaker 04:
So can you connect the dots for me about why this shocks the conscience when we know there is a purpose for the chase?

[00:36:06] Speaker 01:
Sure.

[00:36:07] Speaker 01:
Because there was no object of arrest related to the harm, okay?

[00:36:12] Speaker 01:
I don't feel like a rest could be the or a legitimate government objective They weren't chasing him to stop him from like so the reason why you initiated chase is to stop someone right to keep them from doing unlawful behavior in Louis V County of in Louis V County of Sacramento it said that

[00:36:29] Speaker 04:
Sorry, are you dividing your time?

[00:36:32] Speaker 01:
No, no, we're good.

[00:36:35] Speaker 01:
In Louisville County of Sacramento, the Supreme Court said, look, when the officer was chasing the motorcycle, it wasn't to induce lawlessness.

[00:36:44] Speaker 01:
It wasn't to terrorize or harm the motorcycle and cause them to drive more erratically.

[00:36:50] Speaker 01:
But in here, we have that.

[00:36:52] Speaker 01:
they didn't have a legitimate law enforcement objective.

[00:36:55] Speaker 01:
They weren't trying to make him stop, because they didn't want him to stop.

[00:36:58] Speaker 01:
They would have turned on their lights and sirens and had to pull over.

[00:37:00] Speaker 01:
They didn't want to.

[00:37:01] Speaker 02:
Is that a fact?

[00:37:03] Speaker 02:
Yeah.

[00:37:04] Speaker 02:
It's pled that they didn't have an objective to stop him?

[00:37:07] Speaker 01:
Yeah.

[00:37:08] Speaker 01:
Well, it's a reasonable inference from no lights and sirens.

[00:37:11] Speaker 01:
Where's that pledge?

[00:37:12] Speaker 01:
I'm just wondering.

[00:37:13] Speaker 01:
So all reasonable inferences can be drawn from the factual allegations of complaint according to Twombly vehicle.

[00:37:19] Speaker 02:
Yeah.

[00:37:20] Speaker 02:
You said, I mean, it says a ghost chase, right?

[00:37:22] Speaker 02:
A chase usually means you stop them.

[00:37:26] Speaker 01:
Well, in here, he never stopped them.

[00:37:27] Speaker 01:
Well, so let's take the whole, the totality of the circumstances, like Pearson versus.

[00:37:35] Speaker 01:
So what was the, you think, what is the alleged purpose of the ghost chase, then, in this case?

[00:37:40] Speaker 01:
To cause the person to die, which is what they, which

[00:37:43] Speaker 01:
which if it wasn't, when they saw this person, and this is just facts, this is just truth, when they saw the suspect crash into a taco truck, saw people being maimed,

[00:37:54] Speaker 01:
and hurt a broken back, a son dying on the ground.

[00:37:57] Speaker 01:
And they didn't stop.

[00:37:59] Speaker 01:
They didn't get out of the car.

[00:38:01] Speaker 01:
They didn't say, hey, is everyone OK here?

[00:38:03] Speaker 01:
They didn't take anyone to handcuffs.

[00:38:05] Speaker 01:
And even when they left the scene, and I'm just going to tell you, body camera confirms it, left the scene, doubled back, pretend like they weren't a part of it, got there.

[00:38:12] Speaker 01:
They didn't say, hey, this guy was out of control.

[00:38:16] Speaker 01:
He was a criminal suspect, and he lost control, and this is what happened.

[00:38:19] Speaker 01:
No, they continued to conceal.

[00:38:20] Speaker 01:
They didn't write a report.

[00:38:23] Speaker 01:
And they were commenting to each other, I hope he dies.

[00:38:26] Speaker 02:
So we have to accept the inference that these officers randomly spotted this car and wanted him to die.

[00:38:33] Speaker 01:
Correct.

[00:38:34] Speaker 01:
For being a part of an illegal car rally, which, yeah.

[00:38:37] Speaker 01:
And you know how you can accept that is because why you give me a reasonable explanation for why an officer who just caused a giant crash into the middle of a taco truck doesn't stop their vehicle.

[00:38:50] Speaker 01:
Well, you just said they violated department policy.

[00:38:53] Speaker 01:
Yeah, but more than that, what's more, violating department policy or someone's life?

[00:38:58] Speaker 01:
A person literally lost their life.

[00:39:00] Speaker 01:
Well, I'm not saying they're good people.

[00:39:00] Speaker 02:
What I'm saying is that it's just a very strong inference he liked us to make on pretty bare bones.

[00:39:07] Speaker 01:
I feel like it's more plausible that he was trying to punish a person for being a part of a car rally they don't like than it is to kill them versus stop them.

[00:39:15] Speaker 01:
Than it is to let a police officer to let someone die on the ground because they're afraid of getting written up for IA.

[00:39:22] Speaker 01:
That, to me, is a way bigger stretch of the imagination.

[00:39:26] Speaker 01:
He's going to get written up and get suspended as opposed to someone dies.

[00:39:30] Speaker 02:
I mean, I know we're supposed to draw your favorite, but you're saying that the fact of the chase was we have to assume that the purpose of the chase was to kill him rather than to stop him.

[00:39:41] Speaker 01:
Yeah.

[00:39:41] Speaker 01:
And you know why you have to say that?

[00:39:43] Speaker 01:
You don't have to assume it.

[00:39:43] Speaker 01:
You have to take the factual allegations that every single effort, every single

[00:39:48] Speaker 01:
piece of action that they did afterwards, confirmed that they wanted him to die.

[00:39:51] Speaker 01:
They said he wanted him to die, they never reported it, they didn't stop their car, they didn't get out of their car, they didn't identify themselves as officers, they didn't turn on the sirens, they didn't turn on their lights, they didn't call for medical.

[00:40:00] Speaker 01:
Can I ask, the complaint doesn't say how they caused the crash.

[00:40:05] Speaker 01:
Do you know?

[00:40:07] Speaker 01:
By chasing at high speeds, just the same way as in Check EV Web.

[00:40:11] Speaker 01:
Chasing the guy at high speeds, through thoroughfares,

[00:40:16] Speaker 01:
causing the dude to lose control causing the man to lose control purposely causing him to lose control why else are you get turn on your lights and sirens if you want to pull but they didn't like ram him or anything like that we don't know what's that you were they were ranked the and neither were they check if you went by the car thing that happened to sign forgetting the word

[00:40:34] Speaker 04:
It involves spinning out your car in traffic.

[00:40:36] Speaker 04:
Is that what happened?

[00:40:37] Speaker 01:
The allegation is that they are at a car rally where you spin your car.

[00:40:43] Speaker 01:
Car rally, thank you.

[00:40:44] Speaker 04:
That's what it is, though, right?

[00:40:45] Speaker 04:
It's doing these 360s.

[00:40:46] Speaker 01:
Yeah, but not necessarily they were doing it, but they were at one.

[00:40:50] Speaker 01:
And then people leave it, and these officers were not supposed to chase people that were leaving it because it causes situations like this.

[00:40:59] Speaker 01:
So when the person was leaving it, they suspected he was a part of it, meaning either he was watching it or that he had partaken it.

[00:41:06] Speaker 01:
We really don't know, to be honest.

[00:41:08] Speaker 01:
But what we do know is that they didn't call it in.

[00:41:11] Speaker 01:
They didn't turn on their lights and sirens.

[00:41:12] Speaker 01:
And when the guy crashed into a bunch of people and broke the back of one woman, her son dying on the ground, they slowed down to see it, watched it happen, knew that the suspect needed medical attention, and they deliberately didn't call it in.

[00:41:27] Speaker 01:
concealed it from everybody.

[00:41:30] Speaker 01:
My inference from that is that if I'm an officer, even if I'm going to get in trouble, someone's life is worth more than a piece of paper saying that I shouldn't have chased a guy.

[00:41:39] Speaker 02:
But then under your theory, they also intended to kill the bystanders too.

[00:41:43] Speaker 01:
Yeah, because once they saw.

[00:41:45] Speaker 01:
No, I agree.

[00:41:46] Speaker 01:
Absolutely.

[00:41:47] Speaker 01:
Once you see the bystanders injured on the ground after a car ran into them, then you, like you said, you don't want anyone to catch you.

[00:41:55] Speaker 01:
So let the witnesses die with them.

[00:41:58] Speaker 04:
Well, wait, is that part of your first claim or your second claim?

[00:42:03] Speaker 01:
More of my second claim.

[00:42:04] Speaker 04:
Because I don't think you really have an allegation that the chase, when it's engaged in to hurt the bystanders, is more the deliberate and different second claim.

[00:42:10] Speaker 02:
Correct, Your Honor.

[00:42:13] Speaker 02:
And the motive would be to cover up the fact of a change, chase?

[00:42:16] Speaker 02:
Correct.

[00:42:20] Speaker 04:
OK.

[00:42:20] Speaker 01:
Thank you.

[00:42:21] Speaker 01:
We're taking over your time.

[00:42:22] Speaker 04:
We'll give the other side two minutes for rebuttal.

[00:42:29] Speaker 03:
Let me get right at it then.

[00:42:31] Speaker 03:
To respond further to your question, Judge Bumate, the argument that because someone has a claim that's not subject to qualified immunity, any other person's claim from the same conduct would necessarily be stripped of qualified immunity protection, that is not the law.

[00:42:50] Speaker 03:
And the case law on that is cited in the reply brief at pages 14 to 15.

[00:42:58] Speaker 03:
It's called Berera versus City of Woodland.

[00:43:01] Speaker 03:
And I will just read the last paragraph of a lengthy citation.

[00:43:05] Speaker 03:
As such, notice that one's actions violates the Fourth Amendment.

[00:43:11] Speaker 03:
Just not put one on notice that one's action violates the 14th Amendment.

[00:43:16] Speaker 03:
So in other words, there could be a claim made that's not subject to qualified immunity.

[00:43:21] Speaker 03:
That doesn't mean that the same conduct under a different legal theory

[00:43:26] Speaker 03:
isn't covered by qualified immunity.

[00:43:29] Speaker 02:
So you're suggesting that the intent to harm the suspect doesn't necessarily encompass intent to harm liability for the bystanders?

[00:43:38] Speaker 03:
Exactly.

[00:43:38] Speaker 03:
The fact that the driver could sue and make a 14th Amendment claim based on the allegation, which is simply that there was intent to harm the fleeing suspect,

[00:43:54] Speaker 03:
doesn't mean that the bystander is stripped of, that the officer is stripped of qualified immunity if it's a bystander who files the lawsuit.

[00:44:02] Speaker 04:
But what I was going to say about this analogy you're drawing is, and there may be problems with that other area of case law, but the other area of case law is because the claim is interference with a familial relationship.

[00:44:15] Speaker 04:
It's a different claim than just excessive force.

[00:44:17] Speaker 04:
So I don't know that the idea that two different claims could have two different standards

[00:44:22] Speaker 04:
answers this, because this would be not two different legal theory claims, wouldn't it?

[00:44:29] Speaker 03:
They are different requirements.

[00:44:36] Speaker 03:
It's analogous to the Barrera case, where there is

[00:44:41] Speaker 03:
they would be on notice that they were violating somebody's rights.

[00:44:45] Speaker 03:
But if that somebody is different from the plaintiff, they're not on notice if the law is different as to the plaintiff.

[00:44:51] Speaker 03:
And in this case, it is different.

[00:44:53] Speaker 04:
It's just weird, though, because in that case, in the situation of the family members, I mean, and those cases are odd, but the cases of the family members, the claim is about interference with familial relationships, so then you need some sort of intent to interfere.

[00:45:06] Speaker 04:
which implicates the family members.

[00:45:08] Speaker 04:
But this is an excessive force.

[00:45:10] Speaker 04:
The bystander and the driver would both be making the same claim of excessive force, not a different theory claim.

[00:45:18] Speaker 03:
They're both 14th Amendment due process claims.

[00:45:22] Speaker 03:
But because the allegation is that the intent was to harm the driver,

[00:45:28] Speaker 03:
Under all these cases that are cited in the briefs, which I won't go into now, that is not sufficient for a bystander plan.

[00:45:35] Speaker 02:
The difference would be that the bystanders were injured primarily because of the negligence of the officers intending to harm the suspect.

[00:45:44] Speaker 02:
I don't accept that the complaint properly says that the officers intend to harm the bystanders.

[00:45:52] Speaker 02:
So and then there's case law saying negligent harm caused by officers is not, you don't have liability for that.

[00:45:59] Speaker 03:
Not under the 14th Amendment.

[00:46:01] Speaker 03:
That's right.

[00:46:02] Speaker 03:
It's beyond even deliberate indifference.

[00:46:05] Speaker 03:
It's the highest standard of intent to harm.

[00:46:08] Speaker 03:
The plaintiff who wants to avoid qualified immunity is required to identify the case that it clearly establishes the unlawfulness of the conduct or the right that was violated.

[00:46:22] Speaker 03:
And the case that he mentions is Chachi versus Webb, which is a 1986 case, whereas the Lewis 14th Amendment jurisprudence is much later than that.

[00:46:35] Speaker 03:
Obviously, it's cited in that case.

[00:46:38] Speaker 03:
The case cited in Lewis, Fifth Circuit case, is a case that the actual holdings were about statute of limitations and proper venue.

[00:46:51] Speaker 03:
was not even the issue in this case.

[00:46:52] Speaker 03:
The dictum was the court stated that police engaging in a high-speed chase could be liable for emotional distress damages even without physical injury if the chase was inspired by malice towards the occupants of the fleeing vehicle.

[00:47:08] Speaker 03:
That's not a proposition that isn't endorsed by the Supreme Court or by this court.

[00:47:16] Speaker 04:
You're over your rebuttal time, so I think I need to cut you off.

[00:47:18] Speaker 04:
Thank you for your helpful arguments.

[00:47:20] Speaker 04:
Thanks both sides.

[00:47:21] Speaker 04:
This case is submitted, and we're adjourned for the day.

[00:47:24] Speaker 04:
Thank you.