[00:00:18] Speaker 01: Good morning, Your Honors. [00:00:20] Speaker 01: Please, the Court. [00:00:21] Speaker 01: I represent Peter Goldstein. [00:00:23] Speaker 01: I represent the appellant in this case, who now is Gerald Nepuke, and the estate of Lloyd Nepuke. [00:00:35] Speaker 01: We have raised numerous jury questions. [00:00:39] Speaker 01: And the only way that the district court found otherwise, in my opinion, was to make its own personal findings on disputed facts. [00:00:47] Speaker 01: even contrary to the undisputed facts, the evidence that we presented in the opposition to the motion for summary judgment. [00:00:55] Speaker 01: The determination as to whether the force used was reasonable under the Fourth Amendment requires a very careful balancing [00:01:04] Speaker 01: of the intrusion into the individual's fourth amendment. [00:01:07] Speaker 03: Can I, not to jump ahead, because I think we may have to come back to the, you know, the constitutional violation, but as to the clearly established problem, because you agree we can, we can affirm the district court, this is on summary judgment, so we can affirm the district court on an alternative basis if we need to? [00:01:24] Speaker 01: No, I do not think that we can. [00:01:26] Speaker 01: Okay. [00:01:26] Speaker 01: And I believe that the case law that we cited [00:01:33] Speaker 01: and let me make a distinction here. [00:01:36] Speaker 03: My question is actually more basic. [00:01:38] Speaker 03: We're reviewing this summary judgment grant de novo. [00:01:42] Speaker 03: Even if we think that the district court might have gotten some things wrong, if there is an alternative basis to [00:01:48] Speaker 03: to affirm the district court's decision, we can do that, right? [00:01:52] Speaker 03: That seems to be pretty basic. [00:01:53] Speaker 03: Okay, so I want to ask you about clearly established law because you seem to, setting aside whether there was a prong one violation of the Constitution, you seem to rely on two cases. [00:02:06] Speaker 03: One, the Glenn case from 2011, and then the 2013 case. [00:02:11] Speaker 03: The Hayes? [00:02:14] Speaker 03: Yeah. [00:02:14] Speaker 03: So the problem, number one, Hayes, help me understand how that helps you, because Hayes said there was no constitutional violation. [00:02:23] Speaker 03: It said there were, and the panel was split on whether there were tort, whether there was a factual dispute that would have warranted a tort claim under California law. [00:02:36] Speaker 03: So how can that be clearly established as to a constitutional violation when the case said there was no constitutional violation? [00:02:44] Speaker 01: Well, I think that that case, in the Hayes case, it was a discussion about California negligence law primarily, not too much the excessive fourth amendment. [00:02:54] Speaker 03: Okay, so you're basically conceding that that cannot serve as a basis for clearly established law on a Fourth Amendment violation. [00:03:02] Speaker 01: I don't, I think it's a very specific factual determination in this case. [00:03:06] Speaker 03: I just want to know whether there's clearly established law here and I think what I'm hearing is that the Hayes case cannot be one of those cases. [00:03:17] Speaker 03: So then you go to the 2011 case and here's the question I have. [00:03:22] Speaker 03: The 2011 case was reversed because of factual [00:03:26] Speaker 03: disputes. [00:03:27] Speaker 03: It did not find a constitutional violation. [00:03:30] Speaker 03: It said that there were factual disputes that precluded summary judgment. [00:03:34] Speaker 03: Do we have case law that says that a case such as that that did not find a constitutional violation but just said there were disputes of material effect can serve as clearly established law for a future violation? [00:03:52] Speaker 01: Well, there are factual disputes in this case, and we believe that have to... It's not my question. [00:03:57] Speaker 03: You keep going to prong one, which we may have to get to. [00:04:00] Speaker 03: Right. [00:04:01] Speaker 03: I'm asking about prong two, the clearly established law. [00:04:04] Speaker 03: I don't see any clearly established law here. [00:04:08] Speaker 03: And if that's true, then why can't we just affirm based on prong two and say there was no prior clearly established law in this case? [00:04:20] Speaker 01: well i don't think that this is an exact parallel with the case there are factual issues that have to be decided. [00:04:26] Speaker 01: Hayes doesn't help you. [00:04:28] Speaker 01: No, I'm not contending. [00:04:30] Speaker 03: So we don't need to talk about Hayes. [00:04:33] Speaker 03: The whole point of clearly established law is officers on the ground should be advised that the action they're going to take is unconstitutional. [00:04:41] Speaker 03: What case tells these officers [00:04:44] Speaker 03: that in firing on Mr. Napuk in these circumstances, they would be violating a clearly established prior precedent. [00:04:54] Speaker 03: I don't see it. [00:04:55] Speaker 03: I don't see us ever holding that this was a violation, that the similar fact. [00:05:01] Speaker 03: To the contrary, Hayes suggests that it wasn't a violation. [00:05:07] Speaker 01: Well, what about the Glenn case, for example? [00:05:09] Speaker 03: That's what I'm talking about. [00:05:10] Speaker 03: That's my question. [00:05:12] Speaker 03: In Glenn, we didn't say it was a constitutional violation. [00:05:15] Speaker 03: We said there's a factual dispute about whether there's a violation. [00:05:19] Speaker 03: How can subsequent officers rely on this factual dispute and ferret out what action is prohibited and what is not? [00:05:29] Speaker 01: uh... you know i i i really don't know if there's a specific case rate on point in in this exact uh... scenario that we can point to but [00:05:39] Speaker 01: What about the Nahad case in which the officers mistook a pen for a knife or a sharp object? [00:05:47] Speaker 03: Okay, and that's a different issue on the mistake, and maybe we need to talk about that too. [00:05:52] Speaker 05: Can I follow up on your colloquy with Judge Nelson? [00:05:56] Speaker 05: Hayes, the state claim was analyzed under, it's the same analysis of objective reasonableness, and they were applying the gram factors for reasonableness. [00:06:09] Speaker 05: So it's the same analysis. [00:06:12] Speaker 05: So why isn't that? [00:06:14] Speaker 05: I'm surprised that you're retreating from Hayes because I take it to be clearly established law that when someone has a knife, it doesn't mean that an officer can automatically shoot and kill the person. [00:06:26] Speaker 05: It depends on the reasonableness factors that are applied in Graham and subsequent cases. [00:06:32] Speaker 05: So why wouldn't Hayes be clearly established law that could be applicable to this case? [00:06:38] Speaker 01: I think it could be. [00:06:39] Speaker 01: In the Hayes case, he was holding the weapon in a very threatening manner. [00:06:44] Speaker 01: In this case, in a pouch, he was behind him. [00:06:49] Speaker 01: He was down. [00:06:49] Speaker 01: He was holding it with his two fingers and thumb. [00:06:52] Speaker 05: And haven't we had other published Ninth Circuit authorities that are 1983 cases that also speak and rely on Hays as relevant precedent for considering the reasonableness of lethal force as well? [00:07:08] Speaker 01: Yes. [00:07:09] Speaker 05: I think Glenn, in fact, cited Hays. [00:07:11] Speaker 05: And there may be other cases as well. [00:07:13] Speaker 03: Well, Glenn was 2011. [00:07:15] Speaker 01: It might be a different one. [00:07:16] Speaker 01: Oh, OK. [00:07:17] Speaker 01: Yeah. [00:07:19] Speaker 01: If you want to make the parallel with the Nehad case, for example, and Glenn is the principal case, but you go back to Prong Wann again of the analysis. [00:07:34] Speaker 01: In this case, in this specific case, and I think all these cases really do [00:07:41] Speaker 01: rise or fall based on the very intricate facts that are involved. [00:07:45] Speaker 03: And in this case- Well, but see, that hurts you when it comes to clearly established law. [00:07:50] Speaker 03: Because if it is so fact-specific, then it's hard to find that the law was clearly established. [00:07:57] Speaker 03: It might help you on the first prong. [00:07:59] Speaker 03: And I want to ask you about this, because setting aside my arguments on the Constitution one, we do have state law claims here. [00:08:05] Speaker 03: We have a Nevada state law battery claim and a Nevada state law negligence claim. [00:08:12] Speaker 03: What do we do with those claims? [00:08:14] Speaker 03: Because, so, in the Tabaris case, California law, California law had clearly said state law is far more liberal on granting relief than the Fourth Amendment. [00:08:29] Speaker 03: I'm not sure what Nevada law is on this. [00:08:32] Speaker 03: The best I could find was a District Court of Nevada case, Ramirez, that suggested that they're coextensive, that the Fourth Amendment analysis [00:08:42] Speaker 03: is the same as the Nevada state law battery analysis for purposes of state law. [00:08:48] Speaker 03: Do you have anything to add to that? [00:08:51] Speaker 01: Well, the Nevada negligence claim is similar to the California negligence claim. [00:08:55] Speaker 01: I mean, you've got to have a duty. [00:08:56] Speaker 01: OK, that's negligence. [00:08:58] Speaker 03: Yeah. [00:08:58] Speaker 03: I was asking about battery, because Ramirez addressed battery and I think suggested, if I read it right, that Nevada battery is [00:09:08] Speaker 03: is the same analysis in these circumstances as the civil rights claim, which I read, I think, to mean that it would be coextensive with the Fourth Amendment analysis. [00:09:21] Speaker 03: What I think is sort of what Judge Sanchez was suggesting that... Yeah, the only difference is no qualified immunity in the battery claim. [00:09:29] Speaker 01: Well, I think that's right. [00:09:31] Speaker 03: I don't know, but that's my... I haven't been able to find that there is qualified immunity. [00:09:36] Speaker 01: I mean, and of course, [00:09:38] Speaker 01: Nevada negligence and state law claims don't really provide a remedy in these cases because they're why they're captive That's still a remedy. [00:09:47] Speaker 01: It's remedy, but it's really not sufficient for the life of a human being but No, I understand. [00:09:53] Speaker 03: Well, hold on it. [00:09:54] Speaker 03: It's it's it's inherently sufficient for the life of a human being under Nevada law that's what the legislature said and [00:10:01] Speaker 02: Well, he's saying I think that it's like $250,000 tort cap. [00:10:05] Speaker 02: Is that right? [00:10:06] Speaker 02: $250,000 tort cap, and you're saying a life is worth much more than that. [00:10:11] Speaker 01: I think at the time it was $100,000. [00:10:12] Speaker 01: Yes, it goes back. [00:10:14] Speaker 03: Well, no, but I understand your point, but I'm just saying that the state law defines that. [00:10:20] Speaker 03: You know, you may be, you may not like it, you may want more money, but I don't know how you can, I mean, but state law has defined the right. [00:10:29] Speaker 01: Correct. [00:10:30] Speaker 01: Yeah. [00:10:30] Speaker 03: So I mean, it's been, you're just saying you want to go above the cap and that's why you want the state cap. [00:10:36] Speaker 01: well of course and now since this case was decided by by the district court there is uh... uh... nevada constitutional violation that uh... uh... in a case uh... macphie williams that provides a private right of of action for litigants arising under the nevada constitutional violation so there's more remedies now available to litigants in nevada then simply you couldn't take advantage of that right? [00:11:02] Speaker 03: no not even if it were remanded [00:11:04] Speaker 03: Can I ask about the substantive due process claim? [00:11:08] Speaker 03: Sure. [00:11:08] Speaker 03: Because you have a substantive due process claim for Mr. Napuk was how old was he? [00:11:14] Speaker 03: He was like 44, 44 years old. [00:11:16] Speaker 03: Yes. [00:11:16] Speaker 03: So we do have case law in the Ninth Circuit. [00:11:20] Speaker 03: I've written on this. [00:11:21] Speaker 03: I read in the Sinclair case. [00:11:24] Speaker 03: Well, Tobar is a separate one in the Sinclair case. [00:11:26] Speaker 03: I've written on the on the substantive due process claim. [00:11:29] Speaker 03: And it is true, as we said in Sinclair, that we are an outlier court that has recognized that adult children can give rise to a substantive due process claim. [00:11:42] Speaker 03: My question is, where is the limit? [00:11:43] Speaker 03: Because I think in Sinclair, we're dealing with an 18 or a 19-year-old [00:11:48] Speaker 03: adult, who at least was not a minor, who was living at home. [00:11:54] Speaker 03: But I wrote about this in Sinclair and said, how far does this go? [00:11:57] Speaker 03: I mean, it doesn't make sense to say that, I mean, what if it's a 60-year-old child and he has 80-year-old parents? [00:12:04] Speaker 03: Is the same substance? [00:12:05] Speaker 03: We have not held [00:12:07] Speaker 03: in this similar circumstance that the substantive due process rate applies, have we? [00:12:12] Speaker 01: No, I agree with you. [00:12:14] Speaker 01: The substantive due process claim is not the principal claim in this case. [00:12:18] Speaker 01: It's the Fourth Amendment derivative claim of Mr. Lloyd who died and passed away. [00:12:24] Speaker 01: His father is now the successor for all intents and purposes. [00:12:27] Speaker 01: But yes, the substantive due process claim is [00:12:31] Speaker 01: I think it's low on the totem pole. [00:12:35] Speaker 01: I agree with Your Honor on that. [00:12:36] Speaker 01: You've written on that in Sinclair, and it's a more questionable claim. [00:12:41] Speaker 05: I mean, even if it did apply, assuming it did apply, I was having trouble seeing any, you know, where deliberate indifference might come in. [00:12:52] Speaker 05: And if not, if this was more of a snap judgment decision, why there was any, you know, purpose to harm any evidence of that in the officer's actions. [00:13:04] Speaker 01: Yeah, well, it's, I mean, we're looking at the objective state of the, looking at the video, and I know your honors have seen the video in this case. [00:13:15] Speaker 01: They had certainly time to deliberate. [00:13:17] Speaker 01: I mean, they had five minutes out there to assess Mr. Napauk's mental condition, to assess his ability to cooperate with their commands, to assess his movements and infertive gestures. [00:13:29] Speaker 01: So when they have that time to deliberate, to assess him, [00:13:36] Speaker 01: They have backup. [00:13:36] Speaker 01: They've got the air unit that's been there for two minutes. [00:13:40] Speaker 01: They had Sergeant Chudova, who had a less lethal shotgun that was getting out of his vehicle that could be seen in the officer gun's body cam. [00:13:49] Speaker 01: So they knew the backup was there. [00:13:50] Speaker 01: They knew the air unit was there, and they knew other officers were about to arrive at the scene. [00:13:54] Speaker 01: So they had time to deliberate on what to do. [00:13:59] Speaker 01: yet they shot him anyway when he really was not a credible threat, an immediate credible threat to them. [00:14:05] Speaker 05: Would you agree, the reasonableness analysis is different than a deliberate indifference analysis, would you agree? [00:14:12] Speaker 05: I would seem to think that deliberate indifference is a higher bar to meet than whether the officer's actions were reasonable or unreasonable, or do you disagree with that? [00:14:22] Speaker 01: No, as I said to Judge Nelson, I agree that the secondary claim really is a substantive due process claim. [00:14:29] Speaker 01: It's a much tougher standard to show the deliberate indifference and the purpose to harm, which I can't necessarily say exist in this case, although Mr. Nipauk was shot in the head among the seven shots that were fired. [00:14:43] Speaker 01: impacted his body, one of which was to the head. [00:14:46] Speaker 01: So arguably, that was an intent to harm beyond and above just eliminating the threat of Mr. Napauk, who I don't believe even was a threat. [00:14:56] Speaker 01: And I think getting back to my original point is that these facts are so important that we weigh them carefully. [00:15:05] Speaker 01: And I don't believe the district court's order [00:15:08] Speaker 01: Considered all the facts in our favor in the late most favorable to the non-moving party, which is which is the plaintiff the appellant us and we We've got a situation where numerous two people at least called said there's a man with a large large tool or a crowbar or a Slim Jim they had no initial impression that he had committed any crime and [00:15:37] Speaker 01: When they first approached him, they approached him from 15 feet away is where an officer gun stopped his vehicle, which is too close. [00:15:45] Speaker 01: So the whole idea of officers dealing with a person. [00:15:49] Speaker 01: Too close because there's a policy on that? [00:15:53] Speaker 01: There is a policy on that. [00:15:54] Speaker 03: And did it violate the policy? [00:15:56] Speaker 01: Yeah. [00:15:56] Speaker 03: Is that party, that's your Monell claim? [00:15:58] Speaker 01: Yeah. [00:15:59] Speaker 01: Well, that's part of the Monell claim. [00:16:00] Speaker 01: But there were policy violations found by the Office of Internal Oversight that the approach [00:16:07] Speaker 01: The approach was within policy, they determined. [00:16:10] Speaker 01: However, the lack of pre-planning was out of policy. [00:16:14] Speaker 01: There was no pre-planning at all done. [00:16:16] Speaker 01: and there was no communication. [00:16:18] Speaker 03: How were they supposed to do pre-planning? [00:16:19] Speaker 03: They were responding. [00:16:21] Speaker 03: I mean, as I understood it, the two officers showed up independently. [00:16:25] Speaker 03: It's not like they even went together. [00:16:27] Speaker 03: They just showed up independently. [00:16:29] Speaker 03: Yes. [00:16:30] Speaker 03: But what pre-planning would have been necessary or appropriate? [00:16:35] Speaker 01: At least a communication between the officers that are on their way. [00:16:40] Speaker 01: In this case, Sergeant Kenton and Officer Gunn. [00:16:43] Speaker 01: communications between them, and then other communications to dispatch, which ultimately did alert dispatch to get the air unit involved and the other immediate action team to come. [00:16:54] Speaker 01: So there was communication. [00:16:56] Speaker 01: There simply wasn't communication between the two officers. [00:16:58] Speaker 01: And that's the key. [00:17:00] Speaker 01: They never spoke to each other. [00:17:01] Speaker 01: Sorry, my mouth is getting a little dry. [00:17:03] Speaker 01: But they never spoke to each other during the entire interaction, except one comment by Officer Gunn to Sergeant Kenton. [00:17:11] Speaker 01: But Sergeant Kenton, [00:17:13] Speaker 01: that he was communicating in his mind, in his deposition. [00:17:18] Speaker 01: But he did not communicate. [00:17:19] Speaker 01: So they were faulted for failing to communicate with each other. [00:17:24] Speaker 01: OK. [00:17:25] Speaker 03: Council, you're over time. [00:17:28] Speaker 03: We're going to give you some time for rebuttal. [00:17:30] Speaker 03: But I think, unless there's other questions at this point, I think we'll give you time for rebuttal. [00:17:35] Speaker 03: Thank you. [00:17:36] Speaker 03: Thank you, counsel. [00:17:47] Speaker 03: You've still got time for rebuttal, counsel. [00:17:50] Speaker 03: You might not want to leave. [00:17:52] Speaker 01: Oh, I'm sorry. [00:17:52] Speaker 01: You can't quit. [00:17:58] Speaker 04: May it please the court, Craig Anderson on behalf of Officer Gunn, Sergeant Kenton, and the Las Vegas Metropolitan Police Department. [00:18:05] Speaker 04: Briefly to address the state law claims, there is an unpublished Nevada Supreme Court decision, a state of Brennis, B-R-E-N-E-S, which does apply the gram factors to a battery claim. [00:18:17] Speaker 03: To a battery claim. [00:18:18] Speaker 03: Yes, to a battery claim. [00:18:19] Speaker 03: See, and that's what I'm worried about. [00:18:21] Speaker 03: So I think we have to address, effectively we have to address whether there was a constitutional violation here. [00:18:27] Speaker 03: Even though we have discretion whether to do that under the Fourth Amendment claims, I think we still have to do the same analysis under the battery claim no matter what. [00:18:36] Speaker 04: Yes, under the battery claim. [00:18:38] Speaker 04: I would agree with you that, because Nevada, when it comes to an intentional tort of a battery claim or an excessive force claim, they're kind of the same thing. [00:18:44] Speaker 04: They're duplicative. [00:18:45] Speaker 05: Can I ask, does a battery claim, does it matter whether it's battery wrongful death versus a different kind of battery claim? [00:18:51] Speaker 05: Was this a state of relish claim about wrongful death? [00:18:54] Speaker 04: It's the same because police officers are privileged to use force and so a battery claim is essentially an excessive force claim. [00:18:59] Speaker 04: There's lots of case law out there, not in Nevada necessarily, but [00:19:03] Speaker 04: that does say that. [00:19:05] Speaker 03: What about the negligence claim? [00:19:06] Speaker 03: How is that different? [00:19:07] Speaker 03: Because it seems to me, I mean, in Tabaris, we had case law in California that said negligence, state law negligence is far more expansive than the Fourth Amendment, which seems intuitive, but I wasn't able to find anything in Nevada. [00:19:21] Speaker 04: and there is not okay so within you cannot have a negligent use of intentional force and that's an Arizona case Napier NAP IER and so what a negligence claim looks at is whether the pre shooting pre force decisions [00:19:38] Speaker 04: perhaps caused, you know, the otherwise justifiable use of force. [00:19:42] Speaker 04: In Nevada, we have discretionary immunity under NRS 41.032, which, according to the cases, an officer is immune for their pre-shooting decisions unless they show bad faith or deliberate indifference. [00:19:55] Speaker 04: And that would be the Davis... Under negligence. [00:19:58] Speaker 04: Under negligence, yes. [00:20:00] Speaker 03: But that's odd, because that suggests that negligence is a higher standard under Nevada state law than battery. [00:20:08] Speaker 04: Well, so you cannot get immunity under Nevada state law for an intentional court, you know, if you don't, you're not immune. [00:20:16] Speaker 03: But you're suggesting that negligence requires deliberate indifference, almost like the familial, the substantive process. [00:20:22] Speaker 04: Yes, if you're going to, they're immune unless their actions showed bad faith or a willful disregard, I think is the correct term. [00:20:29] Speaker 04: And that's Jones versus Las Vegas Metropolitan Police Department and Davis versus City of Las Vegas. [00:20:35] Speaker 04: And so when you're looking at pre-shooting tactics, the pre-planning, that sort of a thing, they're immune for those decisions unless their actions show there's evidence of bad faith or a willful disregard for the individual's rights. [00:20:50] Speaker 05: I thought that discretionary immunity involved not these sorts of actions, but some involving something more policymaking or something a little bit different than patrol officers on the ground. [00:21:05] Speaker 05: So the decision... But you're saying these cases specifically refer to officer actions arriving on the scene? [00:21:11] Speaker 04: In use of force cases. [00:21:12] Speaker 04: In use of force. [00:21:13] Speaker 04: Yes, and so the decision of how to detain someone, so for example, I mean, bad hypothetical probably, but if there's someone inside of a store, do they go in, do they not go in? [00:21:22] Speaker 04: You don't want officers making those decisions based on the fear of liability. [00:21:26] Speaker 04: You know, someone waving a gun at a store, you know, well if we go in we're going to get sued, if we don't, so [00:21:31] Speaker 04: What they're looking at is whether the decisions that they used were evidence of bad faith or willful disregard. [00:21:38] Speaker 04: And so Jones versus Las Vegas Metropolitan Police Department was an officer, officers who tased a suspect multiple times. [00:21:46] Speaker 04: Davis versus City of Las Vegas was an officer who punched a suspect in the face. [00:21:51] Speaker 04: There's a couple of others, but yeah, so on how to perform a detention is discretionary because it does involve socioeconomic and political considerations of the officer and you don't want officers refusing to act because of fear of civil liability. [00:22:07] Speaker 03: And so that's where NRS- And the cases say what you're saying, or you're extrapolating from the cases? [00:22:15] Speaker 04: Jones versus Las Vegas Metropolitan Police Department does say that you do need bad faith or willful disregard of it, and so does Davis versus City of Las Vegas. [00:22:28] Speaker 04: Those are Ninth Circuit cases. [00:22:29] Speaker 04: They're not Nevada State cases, okay, that have interpreted NRS-41032 in excessive force cases. [00:22:36] Speaker 03: Okay. [00:22:36] Speaker 03: So let's get back to my questions on clearly established. [00:22:40] Speaker 03: Um, is it, so has Hayes, Hayes was not a fourth amendment case. [00:22:48] Speaker 03: It said there was no fourth amendment violation. [00:22:50] Speaker 03: Is it true that, that we have looked to Hayes, uh, for clearly established law on that principle? [00:22:57] Speaker 04: Okay. [00:22:57] Speaker 04: I could be wrong, but I believe what Hayes said is there was not standing for a fourth amendment claim. [00:23:03] Speaker 04: And so Hayes, [00:23:04] Speaker 04: look at the California state law claims through the prism of the Fourth Amendment Graham Factors. [00:23:10] Speaker 04: And so Hayes did not address whether the law was clearly established, but it did address for, I would say, for Fourth Amendment purposes, whether it was reasonable. [00:23:20] Speaker 04: So I would say that I would have to distinguish Hayes from this case, which I think is easy to do so. [00:23:25] Speaker 03: Okay, so we can't distinguish Hayes by just saying it didn't address the Fourth Amendment, therefore it can't be clearly established. [00:23:32] Speaker 03: We've got to walk through the merits of Hayes. [00:23:34] Speaker 04: The truth is, I believe Hayes did address the Fourth Amendment. [00:23:37] Speaker 04: They just did it under the prism of California state law, but they never looked at the clearly established problem because they said there's no standing there. [00:23:44] Speaker 03: Where I struggle with that is California has been clear that state law is more expansive [00:23:50] Speaker 03: than the Fourth Amendment. [00:23:51] Speaker 03: So I don't understand logically how you could use an analysis, because this was certified to the California Supreme Court. [00:23:58] Speaker 03: They weren't looking at the Fourth Amendment. [00:24:00] Speaker 03: They were only looking at state law. [00:24:02] Speaker 03: So I don't understand how you could take a state law that has already been defined as more expensive than the Fourth Amendment and say that that could be clearly established for the Fourth Amendment. [00:24:12] Speaker 04: So I think your best case on that, again, dealing with California law, is the Voss case, V-O-S. [00:24:18] Speaker 04: That's where they, there was a guy with scissors in a store, and they ended up shooting him, and then they found, they found it was not a Fourth Amendment violation, but that it could proceed under California state law, because of the broadest scope. [00:24:31] Speaker 04: Well, that's my point. [00:24:32] Speaker 04: So what we're looking at with the Fourth Amendment is the actions of the suspect at the time force was used. [00:24:38] Speaker 04: And so, in this case, was it reasonable to shoot Mr. Napook, [00:24:42] Speaker 04: when he was within eight feet, advancing with what the officers thought was a deadly weapon. [00:24:46] Speaker 04: Under California state law, you're looking at the totality of the circumstances. [00:24:50] Speaker 04: Did you provoke him into making that bad decision? [00:24:54] Speaker 04: Were your commands too aggressive? [00:24:56] Speaker 04: Did you consider his mental health? [00:24:57] Speaker 04: So that's where it's broader is that California law, at least, allows a look at whether the officers could have handled the situation differently, whether they could have. [00:25:07] Speaker 03: California law. [00:25:08] Speaker 03: California law. [00:25:09] Speaker 03: But Nevada is different. [00:25:11] Speaker 04: And that's where the discretionary immunity comes in for Nevada law. [00:25:14] Speaker 03: Look, help me out here just on a broader point. [00:25:18] Speaker 03: You watch this video, it's troubling. [00:25:21] Speaker 03: This is tragic what happened. [00:25:23] Speaker 03: And we see these, it's not unusual. [00:25:25] Speaker 03: We see these sadly. [00:25:27] Speaker 03: And I always struggle in these cases between, I mean, we've got this command not to look at 2020 hindsight, because it's easy to look at it and say, oh, they could have done something differently. [00:25:38] Speaker 03: They should have done something differently. [00:25:41] Speaker 03: what what i mean but here it does it just doesn't feel as threat when you're watching the video it doesn't feel as threatening as a lot of the other cases that that we've seen in these scenarios so what about this [00:25:56] Speaker 04: uh... suggest that there was no underlying constitutional violation what about this is that there you know this was a five-minute period which of course in police work is quite a long time you know usually it's a five second ten second and someone's dead uh... in this case there were five minutes of commands five minutes of clear instructions to drop the weapon five seconds of clear instructions not to advance and here with the officers did correctly is they never provoked him they never advanced on him [00:26:22] Speaker 04: They were simply attempting to contain him until they could get their low lethal, which they requested, and this goes a little bit into the pre-planning, that they requested a canine, they requested a beanbag shotgun, they were actively just attempting to- Did they- remind me, did they have tasers? [00:26:36] Speaker 03: They did have tasers. [00:26:37] Speaker 03: And why- they weren't used because the situation- [00:26:42] Speaker 04: didn't allow it or what what was the justification so in a in a case where an officer is confronting someone with a deadly weapon there there would be two options here both to remain on lethal force which is what the officers did or one to have a taser with cover of uh with lethal force there's not a situation where you would just use a taser you would need a lethal force optionist so it's not even clear oh go [00:27:05] Speaker 05: I was going to say, but you have that here, and as I read the record, Officer Gunn, I believe, testified that he thought that, now I'm forgetting the sergeant's name, that the sergeant had the Taser and might deploy it. [00:27:21] Speaker 05: So I guess at a minimum, why doesn't this raise triable questions about, I also was very troubled by this video. [00:27:29] Speaker 05: It's very tragic. [00:27:30] Speaker 05: And you could tell that the officers were trying to talk Mr. Napauk down. [00:27:34] Speaker 05: But to me, what seems to be maybe the turning point in this is, could they have done some more strategic retreating? [00:27:44] Speaker 05: Could they have done other things to try to contain the situation? [00:27:46] Speaker 05: They had the air support. [00:27:47] Speaker 05: I think you had another sergeant that had already arrived with the shotgun, with the bean bags. [00:27:54] Speaker 05: Should this be an issue left to the jury to decide whether something else could have happened as this tragic situation unfolded? [00:28:02] Speaker 04: And I would concede that the Taser is probably the most difficult part of this case, that one of them could have been on Taser. [00:28:07] Speaker 04: But the case lie is that you don't have to use the least intrusive. [00:28:11] Speaker 04: It just has to be reasonableness. [00:28:13] Speaker 04: And so it still was reasonable for each officer to have a lethal [00:28:17] Speaker 04: their lethal option out. [00:28:19] Speaker 04: It may not have been the best practice. [00:28:21] Speaker 04: You may think in hindsight that it would have been better to have someone on Taser, but it was not unreasonable. [00:28:26] Speaker 03: Would Taser have even worked? [00:28:27] Speaker 03: I mean, the Tabaris case, which I handled, he was Taser. [00:28:31] Speaker 03: It didn't do a ding ding to him. [00:28:33] Speaker 03: And he was on, I believe he was on meth as well. [00:28:36] Speaker 03: Now, they didn't, the officers didn't know, but they knew something was wrong with him. [00:28:39] Speaker 03: I mean, is there a justification that in the circumstance like this, you know, Taser can't be used? [00:28:46] Speaker 03: It should be used. [00:28:47] Speaker 03: It may not work. [00:28:48] Speaker 03: We've got to recognize that, but we should still use that first. [00:28:51] Speaker 04: Taser is a viable option. [00:28:52] Speaker 04: However, there's a lot of insecurity with a taser. [00:28:55] Speaker 04: You know, they do not always work. [00:28:56] Speaker 04: They're not, you know, foolproof. [00:28:58] Speaker 04: And so that's left up to the officer. [00:29:00] Speaker 04: And that's where we look at, okay, we wish he'd use a taser, but was it unreasonable to be on gun? [00:29:07] Speaker 04: facing this threat? [00:29:07] Speaker 04: And the answer would be no. [00:29:08] Speaker 04: It is still reasonable. [00:29:10] Speaker 05: This is my question because you may very well be right that it was reasonable, but I don't know that it is beyond debate. [00:29:18] Speaker 05: And so this comes back to the summary judgment standard. [00:29:21] Speaker 05: And I have worries that the district court may have misapplied the summary judgment standard because the court had concluded a reasonable officer would have done this when the analysis should be no reasonable juror would find [00:29:34] Speaker 05: or in other words, a reasonable juror could find for the plaintiff for summary judgment. [00:29:42] Speaker 05: So why, you know, it may be reasonable that the officers couldn't have gone to tasers or may not have been, but why isn't this a driable question? [00:29:51] Speaker 05: What makes it beyond debate in this circumstance, in your view? [00:29:55] Speaker 04: Because when you're looking at reasonableness, you're looking at a large zone of reasonableness. [00:29:58] Speaker 04: And we can sit here, you know, all of us all day and say, well, they could have done this, they could have retreated, you know, but then of course, what if he tripped over the speed bump? [00:30:04] Speaker 04: And we can play that game all day long, which is what we do in these cases. [00:30:08] Speaker 04: The easy answer for me for your question is there is no clearly established law that said this. [00:30:15] Speaker 03: But that doesn't help us under state battery law. [00:30:18] Speaker 04: Right. [00:30:18] Speaker 04: And so that's my fallback on the Fourth Amendment claim is that you would not find any clearly established law. [00:30:23] Speaker 04: But I would think you'd have to find that it was unreasonable the way the officers behaved in this matter. [00:30:29] Speaker 04: that it was unreasonable for both of them to stay on gun. [00:30:33] Speaker 05: Well, so then in that case, distinguish Hayes from me, because I do think that is applicable law. [00:30:38] Speaker 05: And you've got a situation there where you're actually in an enclosed environment within a home and someone is advancing, knife pointed down, and they're shot. [00:30:49] Speaker 05: So, you know, in fact, [00:30:51] Speaker 05: It seems a little more heightened there, and yet the court found that this was a triable question on reasonableness. [00:30:57] Speaker 05: So why is that not clearly established law for purposes of this case? [00:31:01] Speaker 04: Hayes is quite easy to distinguish because when the officers enter the kitchen, you have a wall between them and they enter simultaneously. [00:31:07] Speaker 04: Their instructions to Hayes are, show us your hands. [00:31:09] Speaker 04: His hands are behind his back. [00:31:10] Speaker 04: And he does, he complies with the command. [00:31:13] Speaker 04: He just happens to have a knife in his hand. [00:31:15] Speaker 04: So when he raises his hands, as they've requested him to do, and they see the knife, they shoot him. [00:31:20] Speaker 04: But he was complying with the commands, and plus he had uttered a statement similar, I'm not getting a direct quote here, but, if you're gonna take me to jail, take me to jail. [00:31:29] Speaker 04: Napuk is completely different. [00:31:30] Speaker 04: Napuk did not comply with any of the simple commands to drop the knife. [00:31:33] Speaker 04: He did not comply with the commands to stop. [00:31:35] Speaker 04: When they asked him questions, his answers were not aggressive with them, but they were not, [00:31:41] Speaker 04: compliant. [00:31:42] Speaker 04: And so Hayes, the court found it was different because he was complying with the command when he showed him the knife. [00:31:47] Speaker 04: He raised his hands as he was asked to do and they shot him for doing that. [00:31:51] Speaker 04: So they shot him for following their commands. [00:31:54] Speaker 05: Fair enough. [00:31:55] Speaker 05: Let me ask this. [00:31:56] Speaker 05: There are other factors here that would suggest it might be more of a tribal question. [00:32:01] Speaker 05: He never threatens the officers. [00:32:03] Speaker 05: He never points this object at them or waves it or charges at them. [00:32:08] Speaker 05: I think there's variable speed shown in the video. [00:32:10] Speaker 05: Sometimes he's slow. [00:32:12] Speaker 05: Sometimes he's advancing on them a little bit more quickly. [00:32:15] Speaker 05: But it never, it's not like some of these other cases that we've had where people are rushing on the officers and they have to make a split second decision. [00:32:23] Speaker 05: Do we so is it your view that just because there's that difference about the officer command that it doesn't become clearly established that somehow it's. [00:32:31] Speaker 05: You know explain that for me because we have to wrestle oftentimes with it has to be specific enough to give clear instruction to the officers in the future, but no case is ever going to be an identical match. [00:32:42] Speaker 05: So how do we draw that line in your view? [00:32:44] Speaker 04: So the jurisprudence, to me, as far as reasonableness goes, not clearly established, but reasonable, is if someone is advancing on an officer with a potential deadly weapon and ignoring lawful commands, courts have always held that it was reasonable to shoot. [00:32:57] Speaker 04: And in a state of Serrano, Yerera Serrano, it was an elderly, heavyset woman who was limping. [00:33:04] Speaker 04: and they shot her at about 12 feet. [00:33:07] Speaker 03: That was unpublished though, right? [00:33:08] Speaker 04: It was unpublished, correct. [00:33:10] Speaker 04: But it was 2020. [00:33:11] Speaker 04: And so, you know, because it's the same as the Watkins case. [00:33:16] Speaker 04: But yeah, so when someone is advancing ignoring commands, [00:33:20] Speaker 04: the courts, when they get to within a, I mean, it goes as far as 55 feet, which seems a little bit even long to me, but in this case, they within eight feet, nine feet of when they shot, he's ignoring commands, he's advancing. [00:33:31] Speaker 05: The cases have all held that as a reasonable... Well, I want to say all, because again, Hayes, he was advancing without any... Well, I guess not ignoring commands, because there was no command. [00:33:41] Speaker 05: But you know, for example, Crawford versus the city of Bakersfield, that's the case, the mental health case where the person was setting himself on fire, potentially others. [00:33:51] Speaker 05: He had this bike lock over his head and he was advancing on officers and he was shot. [00:33:58] Speaker 05: was a tribal dispute. [00:33:59] Speaker 05: And so even if you have someone advancing on an officer, I'm not sure that it would necessarily mean that you have a carte blanche to shoot. [00:34:09] Speaker 05: Glenn, the young man, was not advancing on officers, but was advancing in the direction of the home where his parents were. [00:34:17] Speaker 05: And they shot him. [00:34:18] Speaker 05: And as Judge Nelson pointed out, that had tribal issues. [00:34:22] Speaker 05: So I'm not sure that I would say that it's uniformly that the case law says only one thing. [00:34:28] Speaker 04: Law involved someone with a football-sized rock advancing, and they shot him. [00:34:32] Speaker 04: They found it reasonable. [00:34:33] Speaker 04: And, you know, the Strangers case, which I'm not even sure I agree with, is Blanford, you know, with the gentleman who has the Civil War replica, and they shoot him for going into what ends up being his own home, and the court found that was reasonable. [00:34:45] Speaker 04: I know that a lot of panels distance themselves from Blanford because it's an older case, but the Law case is close to this one. [00:34:54] Speaker 04: It was a little bit more violent, because the guy had taken them on a high-speed chase, but he's advancing with a large rock. [00:35:00] Speaker 04: And the officers shoot him when he approached with the rock, because the court found it was reasonable, because he could throw the rock at him. [00:35:05] Speaker 04: And so there are, so when you get to Glenn, the case that you talked about, he had never moved on anybody. [00:35:12] Speaker 04: He was only threatening himself with the knife. [00:35:14] Speaker 04: He was holding the knife, and he only moved when they beanbagged him. [00:35:17] Speaker 04: And then when they beanbagged him, he moved towards the home. [00:35:19] Speaker 04: And at that point, they fire. [00:35:20] Speaker 04: So a completely different scenario, because Napuk was intentionally advancing on these officers. [00:35:25] Speaker 04: And he didn't verbally threat them, but when they said, we're going to shoot you, he's like, I know. [00:35:30] Speaker 05: Don't those statements reject self-harm rather than harm on the officers? [00:35:36] Speaker 04: There's all of these, but what it tells you is someone is willing to provoke a violent encounter to cause themselves harm, which a mentally ill person or a person trying to harm themselves can still cause substantial damage if they were to reach the officers, and they are. [00:35:50] Speaker 04: They're very tragic cases. [00:35:52] Speaker 04: But in this case, you have five minutes of lawful commands. [00:35:55] Speaker 04: You have officers repositioning, moving around, talking calmly, talking sternly, trying all of their training to get to a point to where they could just get the necessary resources there to help them. [00:36:07] Speaker 04: And it was his actions that provoked the need for deadly force, not the officers, which is the difference in Glenn and in Hayes. [00:36:13] Speaker 04: Because in Hayes, it's the officers that are going towards the suspect. [00:36:16] Speaker 04: They're the ones initiating the contact. [00:36:19] Speaker 04: And so that's where this case is markedly different, in my opinion. [00:36:23] Speaker 03: OK. [00:36:24] Speaker 03: Thank you. [00:36:25] Speaker 03: We'll give you two minutes for rebuttal. [00:36:30] Speaker 01: Thank you. [00:36:31] Speaker 01: So Judge Saunders, you asked about the taser. [00:36:33] Speaker 01: And in fact, that is the policy. [00:36:35] Speaker 01: One officer should be on lethal in this case to hit the gun, and another officer can be on taser. [00:36:40] Speaker 01: Otherwise, it might be an issue that both probes don't connect with the subject they're trying to tase. [00:36:45] Speaker 01: But in this case, Sergeant Kenton stated. [00:36:48] Speaker 02: So counsel, the challenge, I think, for the taser was somebody who's armed. [00:36:52] Speaker 02: is and if they're one second away from being able to cause injury to an officer the problem with that for saying that they have to use a taser which would be effectively [00:37:02] Speaker 02: what your position would be, is that if it doesn't work, and we've had multiple cases where it doesn't work, then the other officer has one second to stop the person with a round that doesn't usually work very well to stop people, a firearm round, a handgun round, unless you shoot them in the head. [00:37:20] Speaker 02: So that is quite a standard. [00:37:23] Speaker 02: I mean, it starts to feel like we are sitting in an ivory tower and imposing sort of a very sterilized view, which is not what I saw when I saw the video. [00:37:32] Speaker 01: Well, that's an interesting point, because Sergeant Officer Gunn believed that Kenton was on Taser, and yet he fired. [00:37:37] Speaker 02: Well, he was for a brief moment, right? [00:37:39] Speaker 02: Like, he pulled his Taser out, and then he put it back away. [00:37:41] Speaker 02: But what I'm saying is, the reason it would seem to me to be very reasonable to think, you know what? [00:37:45] Speaker 02: This guy is within 10 feet of us. [00:37:47] Speaker 02: He can get to my partner within a second. [00:37:49] Speaker 02: And if my taser does not work, then I've got one second to pull out my handgun and to use it. [00:37:57] Speaker 01: Yeah, well, as I understood it, the officer gun believed that Kenton was on taser, and Kenton was discussing that in his deposition and in his statement that he didn't want to use both hands. [00:38:08] Speaker 01: He didn't want to have one hand on his gun and one hand on the taser, because that's a violation of policy. [00:38:13] Speaker 01: He didn't want to transition from gun to Taser. [00:38:16] Speaker 01: It may take too much time. [00:38:18] Speaker 01: But irrespective of what he was thinking but didn't communicate to Officer Gunn, Gunn believed that he was on Taser. [00:38:24] Speaker 01: He didn't say it just for a second. [00:38:27] Speaker 01: He thought he was on Taser. [00:38:28] Speaker 01: However, they both fired almost instantaneously, and they both fired at a point in time when... Well, that's the challenge with the Taser thing. [00:38:37] Speaker 02: We've got other cases where [00:38:39] Speaker 02: somebody tries to tase, one of the officers tries, and the other officer fires almost immediately because the person's one second away, 1-1000. [00:38:48] Speaker 02: Like that's all the time you have. [00:38:49] Speaker 02: So it's not like you can tase, sit there and analyze, did it work, and then fire. [00:38:54] Speaker 02: The officers are kind of put in this very challenging situation where they have to make literally a split-second decision as to whether or not the taser was effective. [00:39:03] Speaker 02: And it seems to me your argument is, [00:39:06] Speaker 01: that is what is required for an [00:39:22] Speaker 02: and he stated the interesting thing about this case is every time you know your argument is that they should have retreated more but when i watch the video every time they step back that's when that's when they they get advanced on like literally like every time they so it's almost like in obviously hindsight being twenty twenty it's almost like when they step back they were almost this guy was reacting by coming towards them and so [00:39:49] Speaker 02: isn't it reasonable to think that if they just step back more that he would just continue to advance because literally you know when they go around the goes around the front of the car the guy's advancing on the other officer he turns around sees that officer he starts event and he basically is advancing on them whenever they're retreating towards the last one minute of the video I agree with with you judge van dyke that that's correct he did seem to want to approach [00:40:17] Speaker 01: I have to point out this idea that de-escalation and talking calmly, Sergeant Kenton did employ that, and then he went to, I'm going to shoot you. [00:40:27] Speaker 02: Yeah, because they're trying everything. [00:40:29] Speaker 02: They're asking his name. [00:40:31] Speaker 02: They're trying to be aggressive. [00:40:34] Speaker 02: They're trying to be calm. [00:40:35] Speaker 02: They're trying to be calm first. [00:40:37] Speaker 02: You can see that from the video. [00:40:38] Speaker 01: Well, in a sense, when an officer gun approaches within 15 feet of Mr. Pooke, he immediately gets out of his vehicle and aims the gun right at him. [00:40:47] Speaker 01: He says, drop whatever you're holding in a very forceful command. [00:40:50] Speaker 02: That's because, I mean, when you're watching the first officer's body cam video, the guy just appears like right there. [00:40:56] Speaker 02: I mean, I think all he did was pull his vehicle to the side of the road. [00:41:00] Speaker 02: and jumped out. [00:41:01] Speaker 01: He was in the dark. [00:41:02] Speaker 01: We didn't really see where he came. [00:41:04] Speaker 01: He was approaching. [00:41:06] Speaker 01: He did appear. [00:41:06] Speaker 01: But the initial commands to Mr. Napauk were pretty violent, pretty verbal, pretty forceful. [00:41:14] Speaker 01: And yeah, Kenton did try to deescalate, in a sense, by asking him what his name was, et cetera. [00:41:20] Speaker 01: Nonetheless, he did threaten to shoot him very quickly. [00:41:23] Speaker 01: And the thing about the retreating, [00:41:25] Speaker 01: If they can safely reposition, tactically reposition, I understand they have no duty to retreat per se, but they can tactically reposition. [00:41:33] Speaker 01: And these vehicles were right there. [00:41:35] Speaker 01: There was nobody else around that was in danger. [00:41:38] Speaker 01: They had other backup. [00:41:39] Speaker 01: And instead of retreating, which you could have easily done behind them. [00:41:43] Speaker 03: They had retreated, hadn't they? [00:41:45] Speaker 01: He retreated, yes. [00:41:46] Speaker 01: And that was his reason for not retreating again. [00:41:48] Speaker 01: He said, I already gave up ground twice. [00:41:52] Speaker 03: Your argument would go, if they'd retreated five times, you would have said, do it again. [00:41:56] Speaker 03: Do it again. [00:41:57] Speaker 01: Well, if it's feasible, you spend an hour dealing with somebody. [00:42:01] Speaker 01: If you can save the life, if you can move away and create cover in distance and time. [00:42:07] Speaker 05: I mean, I thought your argument was you could retreat because K-9's on its way. [00:42:12] Speaker 05: There's another officer that has a shotgun with a bean bag. [00:42:15] Speaker 05: You've got air support. [00:42:16] Speaker 05: You could start to contain the situation. [00:42:18] Speaker 05: There are no bystanders around. [00:42:20] Speaker 05: It's the middle of the night. [00:42:21] Speaker 01: So there could have been reasonably other options in order to bring this to a different conclusion with with the presence of other officers The goal of a tactical team in a situation like this when you've got somebody that's non-compliant is to [00:42:40] Speaker 01: create time, distance, cover so that they no longer are a credible threat to you. [00:42:46] Speaker 02: And the idea that... But just to be clear, to apply that in this case would be to require that somebody continue retreating after they've tried, officers continue retreating after they've already for minutes been retreating from somebody. [00:43:00] Speaker 02: And I think, Judge Nelson's point, where's the stopping point? [00:43:05] Speaker 02: I mean, you conceded before you started with this that there's no duty to retreat, but there would be then. [00:43:10] Speaker 02: There literally would be a duty to retreat, and not just to retreat, but keep on retreating until it's no longer possible to retreat. [00:43:16] Speaker 01: Well, I think the policy now called tactically repositioning, and there is a duty to tactically reposition, especially when you know that somebody is not a criminal per se. [00:43:28] Speaker 01: He didn't commit any crime. [00:43:30] Speaker 03: No crime was committed. [00:43:35] Speaker 01: If I concede probable cause for the arrest if you look at the case of Andrews versus City of Henderson [00:43:46] Speaker 01: That doesn't give them the right to use excessive force in the process of the arrest. [00:43:50] Speaker 02: So let's say he did commit the— But it's relevant to reasonableness, because if you're—you know, the question is—one of the questions is whether you're resisting arrest, and they're attempting to try to get him to drop the weapon, which would be a precursor [00:44:04] Speaker 02: to resisting arrests, and he's not doing it. [00:44:06] Speaker 02: Instead, he's advancing on them with the weapon. [00:44:07] Speaker 01: Well, he's got headphones on. [00:44:10] Speaker 01: He's got sunglasses. [00:44:12] Speaker 01: We don't know what he can hear or see. [00:44:13] Speaker 01: He's standing? [00:44:14] Speaker 02: OK, I read that in your briefs, and then I went and watched the videos. [00:44:17] Speaker 02: He's standing right in front of a law enforcement vehicle with the lights on at night. [00:44:22] Speaker 02: There is no question, unless he's out of his mind, that he knows what's going on here. [00:44:28] Speaker 01: I think at that moment in time, I think he probably was out of his mind. [00:44:33] Speaker 02: So then how does that play into, like, if you're a law enforcement officer and you've got somebody out of their mind with what looks like a two-foot knife advancing on you, it sounds very threatening. [00:44:43] Speaker 01: Well, as Judge Sanchez pointed out, this is the whole key, because Officer Trudeau is right there. [00:44:49] Speaker 01: You can see it in the body cam with a low-lethal shotgun. [00:44:52] Speaker 01: They asked for the 40-millimeter launcher. [00:44:55] Speaker 01: that was on its way as well, and the K-9. [00:44:58] Speaker 01: So they had other, all these tools that law enforcement officers have, not just a taser, they got O.C. [00:45:03] Speaker 02: spray, they got, they got... Until he got within eight feet of them, in which case he's less than a second from being able to use a weapon on them. [00:45:11] Speaker 02: You're saying, well, they still should have turned around and literally started running the other way? [00:45:16] Speaker 01: No, not really. [00:45:17] Speaker 01: All they had to do was all officers. [00:45:18] Speaker 01: Well, first of all, Gunn was safe. [00:45:20] Speaker 02: He's right here. [00:45:21] Speaker 02: There's two vehicles right here. [00:45:22] Speaker 02: If he did advance forward and both of them went the opposite way in their car, now they're shooting at each other. [00:45:28] Speaker 01: Yeah, you don't want to crossfire, for sure. [00:45:30] Speaker 01: I understand that. [00:45:32] Speaker 01: But all Officer Sergeant Kenton had to do was go behind. [00:45:36] Speaker 01: He was behind the Ford Explorer. [00:45:38] Speaker 02: His search sounds a lot like [00:45:40] Speaker 01: Now, I mean, he's a sergeant. [00:45:45] Speaker 01: He's tactically experienced. [00:45:46] Speaker 01: This is what he does. [00:45:47] Speaker 01: They encounter people that are mentally distressed all the time in Las Vegas. [00:45:51] Speaker 01: I mean, that's probably more than 70% of the people that get shot are people that are mentally ill. [00:45:57] Speaker 01: So he had time to go behind the Ford Explorer or go to the side or back up. [00:46:03] Speaker 01: Lloyd and Poop was never walking at a fast pace. [00:46:06] Speaker 01: He was always calm, always walking slowly. [00:46:09] Speaker 01: He had his thumb in his pocket. [00:46:12] Speaker 01: He was holding this object. [00:46:13] Speaker 03: But calm people can still use a weapon very quickly. [00:46:20] Speaker 03: I think we've probably hashed this out about as much as we can at oral argument. [00:46:23] Speaker 03: We've given you a fair amount of extra time. [00:46:26] Speaker 01: And I appreciate that. [00:46:27] Speaker 01: Thank you. [00:46:27] Speaker 03: This is a case that the court is definitely looking closely at, and we appreciate both counsel for your helpful arguments today. [00:46:36] Speaker 03: And the case is now submitted, and that concludes arguments for the day. [00:46:40] Speaker 03: Thank you. [00:46:41] Speaker 03: Thank you. [00:46:53] Speaker 00: This court for this session stands adjourned.