[00:00:07] Speaker 04:
All right.

[00:00:08] Speaker 04:
Mr. Escamilla.

[00:00:14] Speaker 02:
Your Honor, my name is Mr. Iredale.

[00:00:16] Speaker 02:
I represent.

[00:00:17] Speaker 04:
Oh, you're Iredale.

[00:00:18] Speaker 04:
OK, sorry.

[00:00:18] Speaker 04:
I've got it backwards.

[00:00:20] Speaker 04:
OK, Mr. Iredale.

[00:00:22] Speaker 02:
May I wish the court a rainless good morning.

[00:00:25] Speaker 02:
I represent the estate of Timothy Smith and his son.

[00:00:35] Speaker 02:
We asked the court to reverse the grant of summary judgment to the defendant in this case.

[00:00:42] Speaker 02:
This case raises the issue of when a bail bondsman becomes liable under 1983 for acting under color of law.

[00:00:57] Speaker 02:
We cited the leading circuit court cases

[00:01:03] Speaker 02:
The summary in the Landry versus Abel bail bonds case is the statement of the law upon which we rely.

[00:01:14] Speaker 02:
And it says that normally a bail bondsman

[00:01:20] Speaker 02:
even though the bondsman is licensed by the state in most states, and even though the bondsman conducts what is typically a public function, specifically the forcible seizure and arrest of citizens, nonetheless remains a private person for purposes of Section 1983 liability unless

[00:01:46] Speaker 02:
The bondsman enlists, and that's the language that the case uses and the other cases tend to use a similar formulation.

[00:01:58] Speaker 02:
When the bondsman enlists the police to serve his purpose or to effect an arrest, then the bondsman becomes, for that purpose,

[00:02:14] Speaker 02:
a person acting under color of state law.

[00:02:17] Speaker 00:
So it seems maybe you could have an argument that the bondsmen here enlisted the police to help with an arrest.

[00:02:25] Speaker 00:
But the violation here was excessive force for shooting.

[00:02:30] Speaker 00:
And I don't see anywhere where these bondsmen asked the police to go shoot him.

[00:02:37] Speaker 02:
Judge Freeland, three things.

[00:02:40] Speaker 02:
One is I invoke the presumption that a person intends the natural and likely consequences of their acts.

[00:02:51] Speaker 00:
But I think this is the problem with your argument, because that's the proximate cause theory.

[00:02:55] Speaker 00:
Is the causal chain so connected?

[00:02:59] Speaker 00:
And I'm not sure it is here, because the causal chain seems like it got broken.

[00:03:03] Speaker 00:
You don't usually think that someone's going to get shot when they get arrested.

[00:03:07] Speaker 02:
Well, and I would agree with you in the abstract, but when the bondsman enlists the aid of the police by fraudulent means and the fraud involves statements of an inflammatory nature that have as their foreseeable and actual, in this case, consequence,

[00:03:35] Speaker 02:
of making much more likely the use of fatal force and of putting in the minds of the police who use that fatal force the belief that this person was armed and dangerous then then it is reasonably foreseeable that the police will be in a position where

[00:04:01] Speaker 02:
Let me go to the specifics, if I might, in answering the question.

[00:04:06] Speaker 02:
In other words, I take your question.

[00:04:09] Speaker 02:
My answer to your question is, one, a person intends the natural and probable consequences of their acts.

[00:04:16] Speaker 02:
Two, you must look to the issue of reasonable foreseeability.

[00:04:20] Speaker 02:
And three,

[00:04:21] Speaker 02:
if the nature of the bondsman conduct in enlisting the police to effect the arrest, to do his work for him, to stand in and do his cause, is such that it will greatly increase the likelihood of the use of excessive or fatal force, then the bondsman then

[00:04:44] Speaker 02:
properly becomes liable for the improper use of that fatal force.

[00:04:51] Speaker 02:
Specifically, this bondsman and his confederate, Soto, told the police things that were not true.

[00:04:59] Speaker 02:
One, this defendant is armed with an AK-47 in his backpack.

[00:05:05] Speaker 02:
Two, yes, Judge Soto.

[00:05:07] Speaker 03:
And we've read the facts.

[00:05:08] Speaker 03:
And they're tragic.

[00:05:10] Speaker 03:
And I'm sorry for your client's loss.

[00:05:13] Speaker 03:
The problem here I have is if a regular private citizen makes essentially a false or inflammatory report to the police, I don't think that normally is in and of itself enough to bring them under, cause them to be acting under color of state law.

[00:05:31] Speaker 03:
to be liable under Section 1983.

[00:05:33] Speaker 03:
So there has to be something different.

[00:05:36] Speaker 03:
And then we have our prior case law in OUTS that basically says bail bondsmen are private actors.

[00:05:44] Speaker 03:
And when they're not actually acting under the authority that has been granted to them by the state, they're not acting under color of state law.

[00:05:56] Speaker 03:
We have here essentially a record where

[00:05:59] Speaker 03:
The bondsman was assisting, essentially, it seemed, out-of-state bondsmen, and none of the things that were normally required for them to effectuate an out-of-state bond were done.

[00:06:13] Speaker 03:
And I understand your contention is that that brings this case into 1983, but what I have a hard time with is that it seems that under, oops, I'm not sure I'm pronouncing that correctly, but that actually takes them outside.

[00:06:26] Speaker 03:
They're not acting under color of state law.

[00:06:29] Speaker 02:
Let me, if I could, address the points that you made, Judge Son.

[00:06:34] Speaker 02:
One, that is correct.

[00:06:36] Speaker 02:
The law is that a complaint to the police normally does not make the person a state actor.

[00:06:44] Speaker 02:
And that's true, by the way, in the state of California, even if the complaint is made maliciously and falsely for the specific purpose of hurting someone, which is why, in this case, our remedy is 1983 or nothing.

[00:07:00] Speaker 02:
under the Hagberg case in the state of California I could call up somebody and say oh by the way my neighbor is shooting his wife and the police then the SWAT team comes and they think that some ambiguous action is

[00:07:17] Speaker 02:
fatal force and they use fatal force and kill somebody, well, I could be criminally liable for a false police report, but there's no civil recompense.

[00:07:26] Speaker 02:
And also, that's the precise example I wanted and it came to my mind, Judge Freeland, in response to your question.

[00:07:35] Speaker 02:
And that is

[00:07:37] Speaker 02:
In this case, what we say happened was essentially the same as happens with swatting.

[00:07:43] Speaker 02:
I call up and I say, this person next door to me has an AK-47.

[00:07:50] Speaker 02:
He's dangerous.

[00:07:51] Speaker 02:
He's looking at a life sentence.

[00:07:53] Speaker 02:
Oh, by the way, he's a child molester and an armed robber.

[00:07:56] Speaker 02:
He has a long history of criminal conduct, of violence.

[00:08:00] Speaker 02:
And it's going on right now.

[00:08:02] Speaker 02:
And I need your help.

[00:08:03] Speaker 02:
Please go to arrest him.

[00:08:05] Speaker 02:
And when the police come,

[00:08:07] Speaker 02:
the person that they are looking at who in fact is none of those things puts his hands in his pockets or moves in a certain way or has a cell phone in his hand and it's dark and the police blast him.

[00:08:21] Speaker 02:
Now how can you blame the police with absolute soul

[00:08:29] Speaker 02:
blame in that situation when they have been given information which is false and they want to live, they want to go home that night.

[00:08:39] Speaker 02:
And what we say is, no, in that circumstance, the person who gave that false information is responsible for the natural, likely, foreseeable consequences of that act.

[00:08:52] Speaker 02:
And now, Judge Song, let me, if I could, just go back.

[00:08:56] Speaker 04:
Can I just clarify what you said?

[00:08:57] Speaker 04:
So there's no intentional tort under California law for this conduct?

[00:09:03] Speaker 02:
with two exceptions, yes.

[00:09:06] Speaker 02:
The case is Hagberg, H-A-G-B-E-R-G.

[00:09:11] Speaker 02:
It's a California Supreme Court case.

[00:09:14] Speaker 02:
And what it says is that under Section 47 of the Civil Code,

[00:09:20] Speaker 02:
There's the litigation privilege.

[00:09:22] Speaker 02:
And since the beginning of criminal litigation is a report to the police, it's absolutely privileged.

[00:09:28] Speaker 02:
Now, there are two statutes concerning false allegations of child abuse, and I think of elder abuse, that allow civil liability.

[00:09:37] Speaker 02:
But save for that, nothing.

[00:09:39] Speaker 02:
So I could call up and say, my neighbor just did X, Y, and Z.

[00:09:44] Speaker 02:
and I know it's absolutely false, I'm doing it maliciously, and for the very purpose of causing harm,

[00:09:52] Speaker 02:
Now, if the police or the DA chooses, they can charge me with violation.

[00:09:58] Speaker 02:
I think it's Penal Code 148.5, false statement to the police.

[00:10:03] Speaker 02:
But if my neighbor wants civil recompense, out of luck.

[00:10:07] Speaker 02:
That's absolutely privileged under the Hagberg case.

[00:10:11] Speaker 02:
Let me go back, Judge Song.

[00:10:12] Speaker 02:
On OUTS, you do raise a point.

[00:10:16] Speaker 02:
which is what do you do with the 847.5 of the penal code where the out-of-state bondsman has to go to court or the bondsman seeking to arrest an out-of-state fugitive has to go to court in order to the bondsman himself do that.

[00:10:35] Speaker 02:
And the answer is basically the law is saying, if you do this, you're a private actor.

[00:10:43] Speaker 02:
The court authorizes you to do so.

[00:10:46] Speaker 02:
But if you don't and you enlist the aid or assistance of the police,

[00:10:51] Speaker 02:
in order to avoid doing that step I believe you you are also a state actor although I appreciate the paradox that you have put your finger on and I think it's there but I don't know that it cuts against us I do agree that it's a curious thing and the way it cuts in this case because in the

[00:11:16] Speaker 02:
Oost case what Judge Trask, and by the way, I think Judge Huffstetler's dissent has the better of the argument, but that's my own prejudice.

[00:11:29] Speaker 02:
Judge Trask, though, says in this case, the reason why there's no state action, no color of law, no 1983 for the bondsmen, the reason is

[00:11:43] Speaker 02:
that these bondsmen acted purely on their own and in violation of the law.

[00:11:50] Speaker 04:
Well, isn't that the case here, because Mr. Escamilla didn't do what a bondsman was required to do in this situation, coming from out of state into California?

[00:12:02] Speaker 02:
No, because he did have his alternative, and he did the alternative.

[00:12:07] Speaker 02:
What he did was illegal, because it was fraudulent and false.

[00:12:10] Speaker 02:
But there's nothing wrong, in other words, under Utst and under 847.5, so long as he doesn't grab the out-of-state person

[00:12:20] Speaker 02:
in the absence of that application to a California Superior Court for an order permitting it, he delegates it.

[00:12:28] Speaker 02:
He enlists the police to do it.

[00:12:31] Speaker 02:
So the enlistment of the police

[00:12:34] Speaker 02:
As such, in the abstract, is not at all illegal.

[00:12:39] Speaker 02:
That's appropriate.

[00:12:40] Speaker 02:
If the police choose to make the arrest, that's fine.

[00:12:43] Speaker 02:
The bondsman gets them to do his work.

[00:12:45] Speaker 02:
In this case, what is wrong, what we say gives rise to liability, is the constant

[00:12:54] Speaker 02:
use of the police and lying to the police, who themselves, to a certain extent, were the victims of the case.

[00:13:01] Speaker 02:
I'd like to reserve two minutes and 20 seconds, if I might.

[00:13:04] Speaker 04:
You may.

[00:13:12] Speaker 01:
Good morning.

[00:13:14] Speaker 01:
Please, as the court, I'm Dan Escamilla, defendant in this action.

[00:13:20] Speaker 01:
The first thing I would like to

[00:13:21] Speaker 01:
point out is that I don't want my actions conflated with those of Ismael Soto.

[00:13:27] Speaker 01:
I never made any of the inflammatory allegations concerning child molestation, life sentence, things like that.

[00:13:33] Speaker 01:
The record is clear on that and the judge's order is also clear on that when he goes over on page 30 of his order the fact that my only involvement was

[00:13:47] Speaker 01:
being the case agent that was referred the case from the Missouri bondsman and from a colleague, Leland Chapman, who is the son of Dog the Bounty Hunter, was handling the case before me in Missouri.

[00:14:00] Speaker 01:
I received the case.

[00:14:00] Speaker 01:
I received it with a wanted poster that said armed and extremely dangerous.

[00:14:05] Speaker 01:
When I inquired about that language, they told me that he had a roommate named Tiffany Moore, who the police later interviewed and confirmed.

[00:14:14] Speaker 01:
Truthfully stated that he had two firearms one was an ak-47 one was a revolver So I truthfully placed that in the wanted poster saying CI reports that one of the parties there were two parties here Was in possession of these firearms.

[00:14:31] Speaker 01:
I didn't make any false statements to the police There's no record of that and the judge's order confirms that okay?

[00:14:39] Speaker 01:
The evidence

[00:14:41] Speaker 01:
supports the district court's ruling that armed and dangerous information was truthful and accurate.

[00:14:47] Speaker 01:
As much as plaintiff's attorney would like you to believe that I concocted facts to enlist in the aid of the police to catch a fugitive that I'd been assigned, there's nothing in the facts which support any allegation and nefarious conduct or fraudulent conduct, as he calls it, on my part.

[00:15:04] Speaker 01:
The officer safety information that I conveyed to the San Diego police officers was something that I believe I have an ethical duty to give to the officers if I receive credible information that a fugitive that I'm chasing in their area.

[00:15:20] Speaker 01:
In addition to complying with the statutory requirement, letting them know that I'm operating in their area, I believe I also have a duty to notify them of significant risks to officer safety that might be involved in a fugitive.

[00:15:34] Speaker 00:
So you're making arguments that make it like, I didn't really do anything wrong, or you shouldn't be mad at me.

[00:15:41] Speaker 00:
Like, these weren't false, and I had an ethical obligation.

[00:15:43] Speaker 00:
But I'm not sure if they really go to whether there's proximate cause here.

[00:15:47] Speaker 00:
Like, whether or not it's true that you thought he had a gun,

[00:15:50] Speaker 00:
saying to the police he had a gun is going to increase the chance of him getting shot.

[00:15:55] Speaker 00:
And I think we've got to figure out if there's proximate cause, whether it's true or not may not really relate to whether there's proximate cause.

[00:16:01] Speaker 01:
Well, let me talk to you about the facts of the case.

[00:16:04] Speaker 01:
The police officer recognizing the picture that I'd given them the day before, recognized the fugitive coming out of a 7-Eleven.

[00:16:12] Speaker 01:
When he went to get out of his car to approach him, the fugitive ran.

[00:16:17] Speaker 03:
Please be clear, he's not actually the fugitive though, right?

[00:16:20] Speaker 01:
Well, okay, he's not the fugitive that I was hired to arrest.

[00:16:26] Speaker 01:
I was hired to arrest the girlfriend.

[00:16:28] Speaker 01:
But since he was traveling with the girlfriend, and because he posed such a significant public safety risk, we included his information on the wanted posters.

[00:16:36] Speaker 01:
And he did also, according to the order, have several out-of-state warrants for his arrest as well.

[00:16:44] Speaker 01:
So he was also a fugitive.

[00:16:45] Speaker 01:
And he wasn't my assigned fugitive, but yes, he was also a fugitive.

[00:16:50] Speaker 01:
When he ran, they set up a perimeter.

[00:16:51] Speaker 01:
They brought in the police dog.

[00:16:53] Speaker 01:
The police dog flushed him out of a phone closet in an alley.

[00:16:57] Speaker 01:
He ran, jumped up on a fence.

[00:16:59] Speaker 01:
The police dog grabbed his shoe, kept his shoe, and the fugitive continued to run.

[00:17:04] Speaker 01:
And he was standing on a roof at the time that the police confronted him and shot him.

[00:17:08] Speaker 01:
Now, when Mr. Iredale argues the natural and probable consequences of one's act, I think it's reasonable to show that the acts of the fugitive in running from the police, in evading the police dog, and in trying to get away, those, you know, break off any chain of causation.

[00:17:27] Speaker 01:
You know, this, I mean, the Palsgraf tells us that.

[00:17:31] Speaker 04:
Well, it's certainly the but for cause.

[00:17:34] Speaker 01:
I'm sorry?

[00:17:34] Speaker 04:
It was certainly the but for cause.

[00:17:36] Speaker 01:
Well, the subsequent.

[00:17:38] Speaker 04:
I have less problem with the prog, I mean, prog is not cause.

[00:17:41] Speaker 04:
I mean, I, I think it's definitely a contributory cause.

[00:17:46] Speaker 04:
Um, but I have more concern regarding the acting under colors of state law argument.

[00:17:54] Speaker 04:
Um, and I'm wondering what's your best argument that you were not acting under color of state law.

[00:18:01] Speaker 01:
The cases that define color of state law require a joint enterprise with the police.

[00:18:05] Speaker 01:
They require a private party going shoulder to shoulder with the police.

[00:18:09] Speaker 01:
And there have been cases where in Riverside or San Bernardino County in the middle of nowhere, officers will ask us to come with them when they execute a search warrant for a fugitive that we have.

[00:18:19] Speaker 01:
And in that situation, I would certainly be a state actor because I'm in a joint enterprise with the police.

[00:18:25] Speaker 01:
But here, my actions in simply referring the police

[00:18:30] Speaker 01:
officer safety information and giving them the flyer with the picture on it those are something that any responsible citizen should do and if the court finds that state action then they would chill the general public's what I believe is a civic duty of protecting police officers by letting them know of dangerous activity or potential for harm

[00:18:54] Speaker 01:
that exists in a certain case and there certainly was potential for harm here because he certainly was at one point in possession of two firearms and he was definitely dangerous.

[00:19:04] Speaker 01:
The dangerous part was talked about in the court's order.

[00:19:06] Speaker 01:
He tried to run over a fugitive recovery agent in Texas and that was brought out through the deposition of the bail agent that referred me to the case.

[00:19:16] Speaker 03:
I mean, separates you from the normal citizen, right, is that you have talked about how you were asked to help recover this fugitive, right?

[00:19:24] Speaker 03:
And so that's not normally why a private citizen calls the police, right?

[00:19:31] Speaker 03:
So, I mean, but you're saying even, I mean, how do, there is a little bit of a difference, I guess, between your role, right, as a, you know, and were you actually

[00:19:42] Speaker 03:
Trying to recover this fugitive when you report it, right?

[00:19:48] Speaker 03:
Okay, but if and if you were why doesn't that make you acting under color of state law?

[00:19:54] Speaker 01:
Well, first of all Until April 1st of this year fugitive recovery agents were not licensed in the state of California Now they are and mr. Iredale might be interested in this were required to carry one million dollar insurance policies But before April 1st of this year

[00:20:09] Speaker 01:
we were simply required to hold on to a certificate showing that we've completed several classes.

[00:20:14] Speaker 01:
So the conduct which fugitive recovery agents engage in is private.

[00:20:23] Speaker 01:
Outs makes it very, very clear that we're not acting on a warrant.

[00:20:26] Speaker 01:
We're acting on the bail bond.

[00:20:29] Speaker 01:
We have authority by virtue of the bail bond.

[00:20:31] Speaker 01:
We don't have authority by virtue of the warrant.

[00:20:35] Speaker 01:
Does that answer your question?

[00:20:39] Speaker 01:
There was no reasonable basis, either factually or legally, for plaintiff's attorney in this case to accuse me of the death of Timothy, I'm sorry, of Eugene Smith.

[00:21:02] Speaker 01:
Yes, Timothy Gene Smith.

[00:21:04] Speaker 01:
uh... despite being accused in some type of uh... improper conduct which led to the preventable death of the defendant in this uh... case uh... i think the disseminating

[00:21:14] Speaker 01:
True and accurate information, which the trial court found, is not something that should lead to any type of liability, especially since a liability is predicated on the Fourth Amendment violation of excessive force.

[00:21:29] Speaker 01:
As noted by Judge Freeland, we did not ask the police to use deadly force.

[00:21:36] Speaker 01:
We avoid it whenever possible.

[00:21:40] Speaker 01:
you know liability issue and it's nobody wants anybody to die we want them to they were once our client they walked into our office or bail office and we trusted them to to enough to bail them out and we usually have friendly amicable relationships with the people that we bail out you know this isn't something where we planned on having the uh...

[00:22:03] Speaker 01:
the decedent come across any type of harm at all.

[00:22:06] Speaker 01:
We never want that.

[00:22:08] Speaker 01:
And there's certainly, by just telling the police, look, there's a problem.

[00:22:12] Speaker 01:
There's a guy in this area.

[00:22:14] Speaker 01:
We've been told that he's carrying guns.

[00:22:17] Speaker 01:
He's got warrants out.

[00:22:18] Speaker 01:
He's traveling with another fugitive who also has her own gun.

[00:22:21] Speaker 01:
There's two guns involved in this case.

[00:22:23] Speaker 01:
And we think you should know about it.

[00:22:25] Speaker 01:
So there was nothing irregular about that.

[00:22:29] Speaker 01:
And also, I should point out that it is a violation of California state law.

[00:22:35] Speaker 01:
If you're a fugitive from another state to set foot in the state of California, that automatically is a violation of penal code section 1551.1, I believe it is.

[00:22:45] Speaker 01:
And in those cases, we

[00:22:49] Speaker 01:
do turn the person over to the police.

[00:22:51] Speaker 01:
We make a citizen's arrest and turn the person over to the police for that violation.

[00:22:55] Speaker 01:
So that's how sometimes we're able to get around the 847.5 section that counsel noted.

[00:23:05] Speaker 01:
And if the warrant is extraditable, which this one was, then the police will arrest the person and they will be extradited to their home state.

[00:23:15] Speaker 01:
So there's nothing irregular about that.

[00:23:17] Speaker 01:
That happens all the time.

[00:23:21] Speaker 01:
Any questions?

[00:23:24] Speaker 01:
I'll reserve the rest of my time, if I may.

[00:23:26] Speaker 04:
No, this is it.

[00:23:27] Speaker 01:
Oh, this is it?

[00:23:29] Speaker 01:
OK.

[00:23:33] Speaker 01:
I think the last point that I just want to make is the cases talk about there being no rigid formula for measuring state action for purposes of Section 1983 liability.

[00:23:44] Speaker 01:
And I'm quoting from Alex, which cites the Burton v. Wilmington case, a US Supreme Court case.

[00:23:54] Speaker 01:
It, the process is sifting facts and circumstances, which is the language of the case, which must lead us to the correct determination.

[00:24:04] Speaker 01:
And I think here that if you sift the facts and circumstances, that my conduct, I acted as any reasonable person would, as any reasonable fugitive recovery agent would, and I let the police know of a potential danger.

[00:24:17] Speaker 01:
I didn't, I wasn't inflammatory in letting them know about it.

[00:24:22] Speaker 01:
I should not.

[00:24:24] Speaker 01:
The actions of Ismael Soto, who was an unserved defendant in this case, who Mr. Iverdale chose not to go after for whatever reasons, should not be conflated with the actions that I committed in this case, which were simply creating the wanted poster based on true and accurate information and handing it to the police.

[00:24:41] Speaker 01:
Now, I think there's a definite

[00:24:43] Speaker 01:
Problem attributing any proximate cause between that and the officer's decision to use deadly force in this case and I think the officer's own testimony articulates that he he had That he did not know about any of the other facts He simply viewed somebody who had a thousand miles stare in his eye and who was pulling something out of his pocket after fleeing a police dog and getting away from a police dog and

[00:25:10] Speaker 01:
And he was 100% convinced that that person was going to use deadly force on him.

[00:25:14] Speaker 01:
I don't think his decision to shoot, and his testimony bears this out, had absolutely anything at all to do with the information that Soto, who was independently hired by the bail agent, by the way, that Soto gave to the dispatch.

[00:25:31] Speaker 01:
I agree that it was inflammatory.

[00:25:33] Speaker 01:
I don't want to say anything more about that, but that was between Soto and

[00:25:37] Speaker 01:
and the police dispatcher.

[00:25:41] Speaker 01:
I did not know about any of that language until after the lawsuit was filed, by the way.

[00:25:45] Speaker 01:
But I just think that my actions are not culpable here in the lease.

[00:25:49] Speaker 01:
And I would go so far as to say that Mr. Iredale's lawsuit against me is frivolous.

[00:25:56] Speaker 01:
I have nothing more.

[00:25:57] Speaker 01:
Thank you.

[00:25:58] Speaker 04:
Thank you, counsel.

[00:26:03] Speaker 02:
Mr. Escamilla has essentially given you a 15-minute recitation of facts that are either clearly false or that were not considered by the judge in his ruling.

[00:26:16] Speaker 02:
They're certainly not the facts in the light most favorable to the non-moving party.

[00:26:21] Speaker 02:
with respect to what he just told you.

[00:26:23] Speaker 02:
He said, I never recruited Soto.

[00:26:26] Speaker 02:
Soto did what he said, what Soto said I had no knowledge of.

[00:26:30] Speaker 02:
We have the deposition in the record of Ismail Soto.

[00:26:34] Speaker 02:
I'd ask the court to review that.

[00:26:36] Speaker 02:
Soto says that this man went to his house,

[00:26:40] Speaker 02:
had already worked with him on five to 10 other cases, recruited him to work in this case, and that everything that Soto said to the police, he got from Escamilla.

[00:26:52] Speaker 02:
In the record, volume two of the excerpt of record, I need to refer the court to pages 308, 309, and 310.

[00:27:01] Speaker 02:
Mr. Escamilla just conceded that the statements made were inflammatory, and I took that as being a concession that they would be likely to create harm.

[00:27:17] Speaker 02:
Here is Mr. Escamilla speaking on the 4th of November 2015 to Detective Collier, the detective who was investigating the homicide which had just occurred.

[00:27:29] Speaker 02:
Escamilla says,

[00:27:33] Speaker 02:
You know that you guys had every reason to believe that you were dealing with a long time career criminal that has everything from child molestation to armed robbery on his record.

[00:27:52] Speaker 02:
You will see in the record on pages one

[00:27:56] Speaker 02:
74 to 181, what Mr. Escamilla had been given by Macy, the bondsman who was out of state from Missouri, who hired him.

[00:28:08] Speaker 02:
That shows a regrettably prolific criminal record

[00:28:13] Speaker 02:
None of which was violent, save for something called use of a weapon that had occurred 25 years before he was shot dead by the officer.

[00:28:24] Speaker 02:
Who, by the way, at his deposition testified that what he had in his mind was the information he received over the radio that the guy was 10-35, armed and dangerous.

[00:28:37] Speaker 02:
We also submitted to the court the video of the actual shooting.

[00:28:41] Speaker 02:
And you can see the overreaction of the officers who are clearly frightened by the information that they have received.

[00:28:51] Speaker 02:
Mr. Escamilla says that the court made a finding that he only gave truthful information.

[00:28:57] Speaker 02:
That's false.

[00:28:59] Speaker 02:
The judge's decision assumed the falsity of the information, but then we say made an erroneous conclusion of law that there was no state action.

[00:29:13] Speaker 02:
There's one other thing I need to say, and that is that

[00:29:18] Speaker 02:
In this case, Mr. Escamilla, according to the testimony of Soto in this deposition, uses this as his pattern.

[00:29:29] Speaker 02:
He will use statements to the police to get them to be involved in going after someone.

[00:29:35] Speaker 02:
In this case, Janie Sanders, the fugitive, was

[00:29:41] Speaker 02:
or a fugitive on a $7,500 bond for simple drug possession in Missouri.

[00:29:48] Speaker 02:
But he knew he was with Mr. Smith, so he exaggerated Mr. Smith's record.

[00:29:55] Speaker 02:
He lied about it, in fact, repeatedly.

[00:29:57] Speaker 02:
Had Soto lie, and then himself repeats the lies, as I have cited in the record.

[00:30:05] Speaker 02:
And he did that because he knew if he could interest the police in going after Mr. Smith, Janie Sanders would be with him, he would get his payment for apprehending the fugitive, and all would be well in that regard.

[00:30:25] Speaker 04:
Can I just ask one question because you're over your time?

[00:30:27] Speaker 04:
Of course.

[00:30:28] Speaker 04:
Is there a distinction in what you have to prove between the conspiracy to violate section 1983 count and the direct violation of section 1983?

[00:30:40] Speaker 02:
I need to take just a moment, if I could, to answer that.

[00:30:44] Speaker 02:
Because I think the district court judge misunderstood what we were saying.

[00:30:48] Speaker 02:
He thought we were alleging a conspiracy between Escamilla and the police.

[00:30:52] Speaker 02:
And we weren't.

[00:30:53] Speaker 02:
Escamilla lied to the police.

[00:30:55] Speaker 02:
There was no meaning of the minds there.

[00:30:57] Speaker 02:
He used the police, having enlisted them through the lies.

[00:31:01] Speaker 02:
What we were saying is Escamilla, Soto, and others themselves conspired

[00:31:07] Speaker 02:
to perpetrate this lie with the likely effect that there would be excessive force used if the police believed that Mr. Smith had a long record of violent crimes was a felon who was currently armed with an AK-47 and who was looking at a life sentence in prison, all of which were false.

[00:31:32] Speaker 02:
And so in that regard,

[00:31:36] Speaker 02:
Technically, yes, there would be a difference in proof as an abstract.

[00:31:42] Speaker 02:
That is to say that conspiracy is the agreement to do the violation, the agreement to tell a lie, and the actual lying is the

[00:31:52] Speaker 02:
1983 offense that we allege in the case.

[00:31:56] Speaker 02:
I hope that answers the question, Judge Warlock.

[00:31:58] Speaker 04:
Does anybody else have any questions?

[00:32:00] Speaker 04:
Okay.

[00:32:01] Speaker 04:
Thank you, counsel.

[00:32:02] Speaker 02:
Thank you so much.

[00:32:04] Speaker 04:
The state of Timothy Gene Smith versus Escamilla will be submitted and this session of the court is adjourned for today.

[00:32:14] Speaker 04:
Thank you, counsel.

[00:32:25] Speaker 04:
This court for this session stands adjourned.