[00:00:16] Speaker 00:
Good morning, Your Honors.

[00:00:17] Speaker 00:
I would like to reserve five minutes for rebuttal.

[00:00:20] Speaker 00:
All right.

[00:00:21] Speaker 00:
May it please the court.

[00:00:21] Speaker 01:
It's always aspirational.

[00:00:22] Speaker 01:
Try to keep your eye on the clock.

[00:00:24] Speaker 00:
Yes.

[00:00:25] Speaker 00:
May it please the court.

[00:00:28] Speaker 00:
I'm Nashaun Neal, attorney for appellant Donell Ware, the mother of decedent Joseph Allen Ware.

[00:00:35] Speaker 00:
The pause that I had for approximately five seconds represents each minute

[00:00:41] Speaker 00:
that it took was the last minutes that the deputy could have had time to think about his actions when he had his knee on the back of Joseph Allen's neck.

[00:00:55] Speaker 00:
And that time elapsed, the record contained, and the district court ignored that when it determined the deputies did not have time to deliberate and determine that when determining whether summary judgment was appropriate,

[00:01:12] Speaker 00:
for the 14th Amendment claim was that the deputies were facing a rapidly and evolving situation.

[00:01:18] Speaker 00:
The district court improperly applied the legal standard for that claim because the evidence of the record shows that there was more than enough time, at least five minutes up to 10 to 12 minutes.

[00:01:33] Speaker 00:
That's a lot of time.

[00:01:35] Speaker 00:
And that shows that, and the reason why I bring that time up is because

[00:01:40] Speaker 01:
I thought, let's pin the timing down, because I thought that the evidence of your 15 plus minutes really come from one witness, Palacios, who did clarify later in his testimony or deposition that the 15, 20 minutes was the whole incident from the time that it started to the time that it ended.

[00:02:06] Speaker 01:
and that the time between the officer encountering the decedent and the time that he was uncuffed was just a matter of a minute, maybe a minute and 30 seconds or so.

[00:02:23] Speaker 01:
So what does the record reflect?

[00:02:25] Speaker 01:
What are you relying on other than Palacios' testimony, which he clarified to say that the incident was 15 to 20 minutes?

[00:02:35] Speaker 00:
We also have the testimony of Ronnie Sanchez, who saw the deputies on top of Mr. Ware for at least eight to 10 minutes.

[00:02:41] Speaker 00:
And that was in his declaration that he mentioned that at the time of that, from that point.

[00:02:45] Speaker 00:
And you also have Newton, one of the other witnesses that said it was, that he saw from the time Deputy Pollock handcuffed him, plus to him not noticing was two minutes.

[00:02:57] Speaker 00:
So we have multiple pieces of evidence from the testimony.

[00:03:00] Speaker 00:
And I do admit that it seems, I wasn't, no one,

[00:03:03] Speaker 00:
was present during that deposition with Mario Polizios, and I believe it was a translation issue that was occurring in there.

[00:03:09] Speaker 00:
But it's clear that you have multiple people that say that it wasn't just a short period of time where the officer was on top of Mr. Ware following him handcuffed.

[00:03:19] Speaker 01:
So you're saying it's Ronnie Sanchez's declaration?

[00:03:22] Speaker 00:
Yes.

[00:03:23] Speaker 01:
And what paragraph of his declaration talks about the eight minutes?

[00:03:32] Speaker 01:
If he talked about the timing in his declaration, I missed it.

[00:03:42] Speaker 01:
I'm looking at ER 1830 through ER 1833.

[00:03:46] Speaker 04:
There's also eight ER 1550, according to my notes.

[00:03:56] Speaker 04:
There are many paginations.

[00:03:59] Speaker 01:
In any event, if you don't have that handy, let me just have you move on, because I don't want to eat up too much of your argument time for that.

[00:04:08] Speaker 01:
We can always check the record afterwards.

[00:04:10] Speaker 01:
But I thought that it was really a matter of minutes.

[00:04:14] Speaker 01:
I guess your argument is at least there's a disputed fact question, right?

[00:04:18] Speaker 00:
Yes.

[00:04:18] Speaker 00:
And that's the point that it's getting at, is that it's not something for, at this point in stage of litigation, for the

[00:04:26] Speaker 00:
the judge should determine or take credibility determinations as it relates to multiple people's testimonies about whether it being a short or long period of time and that the best view of this evidence is looking at multiple pieces of statements of testimony.

[00:04:40] Speaker 00:
So from Mario, Ronnie Sanchez, Newton, that is explaining that the time is long.

[00:04:46] Speaker 00:
And the reason why this is important because the question comes to

[00:04:50] Speaker 00:
whether there was time to deliberate.

[00:04:52] Speaker 00:
Was it practical for the officer?

[00:04:54] Speaker 00:
And the courts have been very clear that it's not an exacting science, but it's once the harm to the public and the officers are gone, there is time to deliberate here.

[00:05:09] Speaker 00:
And one thing that's also unique about this case is that the district court ignored was actually the statements that said, by Mario Palacio says,

[00:05:20] Speaker 00:
After he screamed, he has blood and you're killing him, get off of him.

[00:05:28] Speaker 00:
That excited utterance of what's going on and then the response to that scream was Deputy Pollack putting more pressure on the back of his neck.

[00:05:38] Speaker 00:
That shows that it's not something that just deescalate.

[00:05:42] Speaker 00:
That there was no time to think about it.

[00:05:44] Speaker 00:
It was a time to show that he was understood the comment and potentially one could infer which I'll discuss later about even if the court disagrees with the deliberate and different standard and the purpose to harm that evidence in of itself is indicative of

[00:06:03] Speaker 00:
a reasonable juror that could say that that was to get back, to show a force to say, he had this under control.

[00:06:10] Speaker 00:
That was unrelated to anything about whether the officer's safety was concerned or whether it was any other legitimate objective for the officer.

[00:06:17] Speaker 03:
Looking in hindsight, clearly, I think you're making a valid point.

[00:06:23] Speaker 03:
We're looking at the circumstance then, and this does seem like the classic case of quick decisions have to be made, evolving set of circumstances.

[00:06:33] Speaker 03:
The officer is flagged by a driver saying there's someone acting crazy by a schoolyard.

[00:06:37] Speaker 03:
We've called 911.

[00:06:39] Speaker 03:
The officer then sees Mr. Ware struggling with two postal officers trying to handcuff him.

[00:06:45] Speaker 03:
There's a scuffle.

[00:06:48] Speaker 03:
It's a little bit hard to separate all these moments and then say, you know, he should, he had enough time to figure out what to do.

[00:06:56] Speaker 03:
I mean, this is the classic evolving set of circumstances where there's chaos.

[00:07:01] Speaker 00:
Respectfully, Your Honor, I disagree with that being that said it's chaos because at the time of the question where the question of force is at issue is after the handcuffing.

[00:07:11] Speaker 00:
Prior to that, I would admit that it was a chaotic scene.

[00:07:15] Speaker 00:
But when the officer came in, he came in to control the scene.

[00:07:18] Speaker 00:
And that's the point that I have here, is that once you've put the defendant into handcuffs,

[00:07:26] Speaker 00:
and he's no longer a threat.

[00:07:27] Speaker 00:
We have another officer also securing the scene, and there's other officers present.

[00:07:32] Speaker 04:
At that point, is he not also still, as I read the record, and help me if I'm wrong, he's still kicking and flailing his legs, and I read it, Pollock then moves and mostly puts his weight on the hamstring and has his leg over, he doesn't have his knee on his back anymore.

[00:07:50] Speaker 04:
That was what I saw, because the talk about the hamstrings.

[00:07:56] Speaker 04:
Am I wrong about that?

[00:07:58] Speaker 00:
No, but that is actually the defendant's position about what he did.

[00:08:03] Speaker 00:
Meanwhile, we have a third party witness, Mario Polizio, that actually said he actually put his knee on the back of his neck again.

[00:08:14] Speaker 00:
Well, up near his neck.

[00:08:15] Speaker 00:
Up near his neck.

[00:08:16] Speaker 04:
And that's Mr. No, he clearly was doing that earlier while they're fighting the handcuffing.

[00:08:22] Speaker 04:
So we get back to how much time

[00:08:24] Speaker 04:
Let me ask you one other thing.

[00:08:26] Speaker 04:
You've been emphasizing, did he have time to deliberate?

[00:08:31] Speaker 04:
Is not the appropriate standard purpose to harm and simply

[00:08:38] Speaker 04:
a timing, almost a temporal proximity doesn't give you purpose to harm.

[00:08:44] Speaker 04:
He doesn't say anything bad about him.

[00:08:47] Speaker 04:
In the other cases where you chase somebody down and you're mad at him, and so clearly when you kick him, you would have a purpose to harm.

[00:08:55] Speaker 04:
Do you have anything except the temporal proximity?

[00:08:59] Speaker 00:
Your Honor, I do.

[00:09:00] Speaker 00:
I believe that the eyewitness testimony where it says he's

[00:09:06] Speaker 00:
dying, he can't breathe, and you have these sounds.

[00:09:08] Speaker 00:
That is enough, because that plus the officers' deputies' actions was you hear that someone's dying, and then you put more pressure on it.

[00:09:20] Speaker 00:
That is a show of force.

[00:09:21] Speaker 00:
That's a reasonable inference for a jury to say.

[00:09:23] Speaker 04:
A show of force.

[00:09:24] Speaker 04:
Am I right on the excessive force claim?

[00:09:27] Speaker 04:
Pollock is still in court.

[00:09:28] Speaker 04:
I mean, you're going to get to try him on excessive force.

[00:09:31] Speaker 04:
Here we're on substantive due process, purpose to harm, right?

[00:09:36] Speaker 04:
Correct.

[00:09:37] Speaker 04:
Okay.

[00:09:37] Speaker 04:
Is there any particular reason to take two bites at the apple?

[00:09:41] Speaker 04:
Is this bite better if we rule for you?

[00:09:44] Speaker 00:
Well, Your Honor, I do not represent the remaining places.

[00:09:47] Speaker 00:
I represent the mother.

[00:09:48] Speaker 00:
And the mother, that was a separate claim.

[00:09:52] Speaker 01:
Right.

[00:09:52] Speaker 01:
Council, I just wanted to let you know, I found the paragraph that I think you're talking about, paragraph 12 of the Ronnie Sanchez declaration, but that

[00:10:03] Speaker 01:
says that lumps the deputy sheriff's police officers um pinning him down on the street for eight to ten minutes so it's unclear to me whether this is directed at officer pollock only or it's like in the melee where everybody was trying to gain uh control uh of him and uh i think as judge lee pointed out this was a an evolving very chaotic situation so i'm not sure that that paragraph

[00:10:29] Speaker 01:
that you're referring to gets you as far as you want to go.

[00:10:31] Speaker 01:
But, you know, we'll be sure to check the deposition to see if there's any further clarification on that.

[00:10:36] Speaker 01:
I didn't see anything in the record directing to this claim and this question of whether it should be deliberate indifference or purpose to harm.

[00:10:46] Speaker 01:
I think we've got to focus on Pollock for that.

[00:10:50] Speaker 01:
But let me ask you about the excessive force claim.

[00:10:55] Speaker 01:
I'm assuming

[00:10:56] Speaker 01:
that trial has been stayed pending the outcome of this appeal, is that correct?

[00:11:00] Speaker 00:
That is correct.

[00:11:04] Speaker 00:
And then I just want to point back to speaking about whether there was this question about being restrained and actually, I think we also request to look towards the other district courts that have actually, in the similar circumstances, that have actually applied the same standard and applied the deliberate and different standard instead of the

[00:11:24] Speaker 00:
the deliberate purpose, the intent or purpose of harm, and that's, I cited those, I believe, in the brief.

[00:11:30] Speaker 00:
It's Garcia v. Yerba County Sheriff Department.

[00:11:33] Speaker 00:
twenty twenty three u s district lexus seven three nine four three and that's northern district california case as well as the i a versus city of emoryville numbers fifteen dash zero four seven three two twenty seventeen u s district lexus three five seven seven four and that's northern california district case in march thirteen twenty seventeen and the reason why i bring this up is because under the similar facts uh...

[00:12:02] Speaker 00:
When an officer engages in this conduct and sits and puts his body weight even more after he's been arrested, the case changes.

[00:12:10] Speaker 00:
It would be different if it was immediately right after it happened, but we have here the evidence showing that

[00:12:17] Speaker 00:
there was a moment in time where there is actual time to actually think as it relates to the officer putting more weight onto the body and i think when you look at this case it's not a single individual witness is that at this stage in time and best for the trial is to actually take each one of these pieces and putting them together and to show that it is plausible that the officer had over

[00:12:42] Speaker 00:
Three over a minute as what his testimony says but more like five minutes, which is supposed to be Viewing the facts most favorable to plaintiffs at this stage.

[00:12:51] Speaker 00:
And so if there's no further additional questions reserved some time, okay.

[00:12:55] Speaker 01:
Thank you

[00:13:06] Speaker 02:
Good morning, Your Honors.

[00:13:07] Speaker 02:
May I please the court?

[00:13:08] Speaker 02:
I'm Marina Sampson, attorney for the County of Los Angeles.

[00:13:11] Speaker 01:
Can you speak up a little bit and bring the microphone closer?

[00:13:13] Speaker 01:
Sure, I will.

[00:13:14] Speaker 02:
And I'm sorry.

[00:13:14] Speaker 02:
I lost my voice yesterday.

[00:13:16] Speaker 01:
Oh, sorry to hear that.

[00:13:19] Speaker 02:
All right.

[00:13:19] Speaker 01:
I'll speak up.

[00:13:20] Speaker 01:
Let me turn up the speaker a moment, because I'm having a little trouble hearing you.

[00:13:26] Speaker 02:
Thank you.

[00:13:27] Speaker 02:
And I'm Marina Sampson, representing the County of Los Angeles, and deputies Adrienne Dicasas and Deputy Pavluk.

[00:13:37] Speaker 02:
Just to make this clear for the court, I am going to start with referring the court to Mr. Ronnie Sanchez's declaration in paragraph 15, where he states, I don't remember which officer or deputy were on Joseph Wirth's back area during the December 7, 2018 incident, complained of, only that approximately six or so police officers and deputy sheriff that were on top of

[00:14:05] Speaker 02:
Joseph fares back, all together for approximately 8 to 10 minutes.

[00:14:11] Speaker 02:
And then what this court judge did, contrary to appellant's argument, Judge Selna put together all these pieces of evidence.

[00:14:22] Speaker 02:
District Court Judge looked at Ronnie Sanchez's declaration.

[00:14:25] Speaker 02:
District Court Judge considered Mr. Palacios' deposition testimony and interview testimonies closely when analyzing the issue of use of force.

[00:14:37] Speaker 02:
He also noted the inconsistencies in Mr. Palacios' testimony.

[00:14:41] Speaker 02:
However, he gave it a consideration.

[00:14:44] Speaker 02:
And as Your Honor pointed out, Mr. Palacios testified that it was about 15 to 20 minutes

[00:14:51] Speaker 02:
all together.

[00:14:52] Speaker 02:
He was asked again, the whole incident?

[00:14:54] Speaker 02:
He said, yes, the whole incident.

[00:14:56] Speaker 02:
And then there was a testimony from Eyewitness Newton, who stated there were about two minutes or less so when Deputy Pablo was trying to restrain resisting Mr. Ware.

[00:15:14] Speaker 02:
And there was also a testimony from Mr. Davis, who also testified that

[00:15:21] Speaker 02:
It was about two minutes or less when Deputy Pavlov was trying to restrain Mr. Ware.

[00:15:30] Speaker 02:
As Your Honor pointed out, it was impact chaotic situation.

[00:15:35] Speaker 02:
I would ask

[00:15:36] Speaker 02:
Your honor, to for a moment imagine not in the silence of this court, but in the chaotic area in the middle of South Central, when you have so many people surrounding you yelling, shouting,

[00:15:51] Speaker 02:
Deputy, let's concentrate on a moment when the deputy had those couple minutes to try to restrain Mr. Ware, when you can see from the record, from the video and also from the photos of that Snapchat of that video, how many people are there in the surrounding area so close to deputy public who was trying to restrain Mr. Ware?

[00:16:15] Speaker 03:
Can you address the opposing counsel's argument that, okay, once

[00:16:19] Speaker 03:
Mr. Ware is handcuffed, then our mode of analysis should change.

[00:16:24] Speaker 03:
At that point, the situation has been diffused somewhat, albeit he is resisting a little bit with his legs, but he's handcuffed.

[00:16:33] Speaker 03:
So at this point, the officer arguably had more time to deliberate and think about his next actions.

[00:16:39] Speaker 02:
your honor I think the officer did not have more time it was between 30 seconds to the most two minutes when again in the middle of the street while he's trying to

[00:16:51] Speaker 02:
restrained, Mr. Ware.

[00:16:52] Speaker 03:
I'm saying, once he's handcuffed.

[00:16:54] Speaker 02:
Once he's handcuffed, but it's moving so rapidly.

[00:16:57] Speaker 02:
So it's not like officer is so focused on Mr. Ware.

[00:17:01] Speaker 02:
You can imagine, he's trying to hold him down while you have people shouting at you, yelling.

[00:17:05] Speaker 02:
Mr. Ware is yelling.

[00:17:06] Speaker 02:
So there's a lot of distraction.

[00:17:08] Speaker 02:
It's not that this happened in a vacuum, that there is Deputy Pavluk and Mr. Ware on the ground.

[00:17:13] Speaker 02:
It's middle of the street.

[00:17:15] Speaker 02:
When Deputy Pavluk responded to the situation,

[00:17:18] Speaker 02:
While watching postal officers trying to handcuff Mr. Ware, he believed that he had at least committed some type of a crime.

[00:17:26] Speaker 02:
So there was a lot going on at the deputy's mind.

[00:17:29] Speaker 02:
It wasn't happening in the vacuum.

[00:17:31] Speaker 02:
So I think we should give a deference to the law enforcement who makes split-second of a decision.

[00:17:36] Speaker 02:
It wasn't that Mr. Ware was like, calm down, he just had another minute or

[00:17:41] Speaker 02:
five minutes to observe the area, know that he's on the ground.

[00:17:46] Speaker 02:
He was by himself.

[00:17:46] Speaker 02:
There were no other officers helping him because it was clear from the record how crowded the area was, how there were concerns by other police officers, postal officers, and also training officer

[00:18:00] Speaker 02:
who were trying to control the crowd instead of coming and helping deputy public.

[00:18:07] Speaker 02:
So I think we just cannot isolate him and Mr. Ware within this area when you have so many people coming close to you.

[00:18:14] Speaker 02:
Who knows what was going on in his mind, but I think his actions within those couple of minutes do not indicate

[00:18:21] Speaker 02:
that the deputy had any ulterior motive or his actions within those minutes when he responded to the minute when he turned Mr. Ware and saw him lean.

[00:18:32] Speaker 02:
I think Judge Selna gave it a very careful consideration, and he also ruled that there was no ulterior motive.

[00:18:40] Speaker 02:
There was nothing that would indicate that

[00:18:42] Speaker 02:
Deputy Pavlov was harassing Mr. Ware or causing anything.

[00:18:46] Speaker 02:
He immediately became the CPR.

[00:18:48] Speaker 02:
I think we have to look into the totality of that day.

[00:18:53] Speaker 03:
Should we consider the fact that the officer is about a foot taller and 100 pounds heavier than Mr. Ware?

[00:18:58] Speaker 03:
I mean, it seems like once you're handcuffed and the officer is that much bigger than him, I mean, is there a realistic chance that Mr. Ware would have really realistically resisted or fled?

[00:19:12] Speaker 02:
He was continuing to resist.

[00:19:14] Speaker 02:
That's what the people testified.

[00:19:15] Speaker 02:
The eyewitnesses that Mr. Wu continued to resist.

[00:19:19] Speaker 02:
And they were also corroborating the deputy public's testimony that he was not compliant, yelling, shouting.

[00:19:25] Speaker 02:
And deputy testified that he actually put a pressure.

[00:19:28] Speaker 02:
He didn't put a body pressure on Mr. Wu.

[00:19:31] Speaker 02:
He tried to control hamstrings, which he had to release his other knee.

[00:19:35] Speaker 01:
But at this stage of the case, we have to

[00:19:41] Speaker 01:
give the benefit of every inference in favor of the plaintiffs in this case, right?

[00:19:47] Speaker 01:
So you can say, well, the officer said he didn't put pressure on his neck, but they have a witness, Palacios, at the scene who said that Mr. Ware was struggling for his life and Mr. Palacios was concerned enough to say, let him go, stop it, you're killing him.

[00:20:05] Speaker 01:
The response by the officer at that point, according to Mr. Palacios,

[00:20:10] Speaker 01:
is to put more pressure on Mr. Ware's neck.

[00:20:13] Speaker 01:
You know, we see, we now increasingly see all these cases of positional fixation and people die from pressure on the neck and the back and that's, I think, pretty common, should be pretty common knowledge from the officers as well.

[00:20:29] Speaker 01:
I'm not saying that the jury would believe Mr. Palacios versus the officer, but why isn't that testimony enough to get this case to a jury?

[00:20:37] Speaker 02:
Because Judge Selna considered the totality of the evidence, and he looked at the deputy's actions, and also corroborating evidence, and Mr. Palacios' testimony, which the moment that yelling and shouting is going on, within 30 seconds to two minutes, Deputy Pavluk responded and turned him.

[00:20:57] Speaker 02:
But at that moment, Mr. Ver was limp.

[00:20:59] Speaker 02:
So he just didn't have enough.

[00:21:01] Speaker 02:
Even with Mr. Palacios shouting at him, it was such a short,

[00:21:06] Speaker 02:
time period within the chaotic situation, he just did not have enough to develop that type of a motive that I'm going to ignore you, I'm just going to keep putting pressure on this person, I'm holding down.

[00:21:19] Speaker 02:
It just was not enough for him to deliberate.

[00:21:23] Speaker 02:
or even cause a motive to continue holding Mr. Ware for any other reason than to restrain him and keep public safe until the things will come down and see what's going on.

[00:21:36] Speaker 01:
So I think the timing and the reaction was within the- Right, that's why we're focusing on the timing, because that's critical, right?

[00:21:43] Speaker 01:
Because that determines whether it's deliberate indifference or purpose to harm standards.

[00:21:49] Speaker 01:
your position is that other than that declaration that we looked at, which talked about all these officers on him.

[00:21:55] Speaker 01:
So it doesn't pinpoint Pollock and Palacio's testimony saying that 15 to 20 minutes

[00:22:02] Speaker 01:
covered the entire incident.

[00:22:03] Speaker 01:
There's nothing else in the record that suggests it was more than a minute or so.

[00:22:07] Speaker 01:
Is that your position?

[00:22:09] Speaker 02:
Yes, because there were other witnesses, witness Davis, who also testified it was less than two minutes.

[00:22:16] Speaker 02:
There was also witness Newton, who said it was approximately two minutes.

[00:22:21] Speaker 02:
So we do not have any testimony corroborating that that specific time when

[00:22:26] Speaker 02:
Deputy Pavlik was trying to restrain Mr. Ver, even though he was already handcuffed by kicking his legs and trying to resist.

[00:22:35] Speaker 02:
We do not have any other corroborating testimony that that incident took more than two minutes.

[00:22:46] Speaker 02:
So, therefore, the court mentioned that now the officer should be on notice about death by asphyxia or causing the shortness of breath.

[00:22:59] Speaker 02:
that is present as a contested issue, how Mr. Wuerl's death, what caused Mr. Wuerl's death, there is an issue between the finding of the coroner and the expert.

[00:23:11] Speaker 01:
However, that issue is not before the court.

[00:23:15] Speaker 01:
I understand that.

[00:23:16] Speaker 01:
I think there's now increasing knowledge and sensitivity to putting pressure on somebody who's prone

[00:23:25] Speaker 01:
and putting pressure on their back or their necks.

[00:23:27] Speaker 01:
But I understand that there are disputed issues in this case, and that's why you're going to trial on the Fourth Amendment claim.

[00:23:34] Speaker 02:
Yes, but therefore, the critical distinguishment here that Judge Selma did, aside from the use of excessive force and deputy public's understanding of that, the pressure might be considered as a

[00:23:51] Speaker 02:
cause the asphyxia because we have Drummond case which plaintiff relied on that he must have been, he must have had a knowledge of that continuing pressure on a prone position suspect would have given him a fair notice to understand that he might cause excessive force that would be considered excessive force that might cause the

[00:24:14] Speaker 02:
substantial risk or death.

[00:24:17] Speaker 02:
However, that again goes back to the consideration as to Fourth Amendment, as to excessive force.

[00:24:22] Speaker 02:
In this case, it's just a situation within that totality of circumstances evolving so rapidly in the middle of a crowd.

[00:24:32] Speaker 02:
it just he didn't have enough time to act with a motive to harm, even when he was being shouted, different noises, things are coming his way, people yelling, Mr. Berry is saying something inconsistent.

[00:24:47] Speaker 02:
And then at the same time, even if we consider deliberate indifference, I think here, Drummond case is so different where the court mentioned that

[00:25:00] Speaker 02:
the suspect has to be in a prone position.

[00:25:03] Speaker 02:
In that case, there were two officers on top of the suspect.

[00:25:06] Speaker 02:
The suspect was fleeing for air.

[00:25:09] Speaker 02:
He couldn't breathe.

[00:25:10] Speaker 02:
And then the same time, in Drummond case, there was a Hubble restraint applied.

[00:25:14] Speaker 02:
It took a way longer minute for almost 20 minutes, and then one minute after the Hubble was applied.

[00:25:19] Speaker 02:
I think that case just does not give us the clearly established context of the facts to argue that

[00:25:28] Speaker 02:
there was a constitutional violation and the deputy was in fact on a fair notice that that he's not violating fourth amendment but he's violating 14th amendment and shocking the conscience.

[00:25:44] Speaker 02:
I think here we just have to focus that

[00:25:46] Speaker 02:
Did deputies' actions within those minutes, in that chaotic situation, with people yelling, shouting, coming across, other officers trying to hold the crowd, did his actions shock the conscience to violate Ms.

[00:26:03] Speaker 02:
Ware's, his mother's, constitutional right?

[00:26:10] Speaker 04:
From a trial point of view, does this

[00:26:13] Speaker 04:
claim make you worse off or no worse off than you are on the excessive force claim?

[00:26:18] Speaker 02:
No, I think Judge Salna did a great job separating excessive force.

[00:26:23] Speaker 02:
So I think there's a trouble issue of fact as to excessive force.

[00:26:28] Speaker 02:
And again, there is other issues related to excessive force.

[00:26:32] Speaker 02:
But it's been challenging also with district judges when we argue these cases.

[00:26:38] Speaker 02:
There is a lot of overlap between the

[00:26:41] Speaker 02:
Fourth Amendment excessive force and the purpose to harm shocked the conscience.

[00:26:46] Speaker 02:
I think it's important to stay focused on the 14th Amendment on whether these deputies' actions shocked the conscience that would warrant for a 14th Amendment constitutional right violation and whether at that time the law was so clearly established to give him a fair notice that within this couple of minutes, I'm gonna cause asphyxia this person to die

[00:27:10] Speaker 02:
Therefore, I'm so deliberately indifferent to the substantial risk of Mr. Ware's injury.

[00:27:17] Speaker 02:
He just didn't.

[00:27:18] Speaker 02:
It was not practical for him to deliberate within that situation, within that amount of time, with so many people surrounded and crowd, the school, people approaching, yelling, taking photo of him.

[00:27:30] Speaker 02:
There was a distraction.

[00:27:32] Speaker 02:
He was not in a vacuum to be able to think and deliberate.

[00:27:37] Speaker 02:
Moreover, the situation, the timing itself,

[00:27:42] Speaker 02:
tells the court that the heightened standard purpose to harm should apply and there is no indication from his actions compared to other cases that were decided by this court that there was anything additional that would cause the court to think that he was acting with ulterior motive or he had any other intent than law enforcement objectives to keep public safe, to restrain a resisting suspect within that situation.

[00:28:11] Speaker 01:
All right.

[00:28:12] Speaker 01:
Thank you very much, Council.

[00:28:13] Speaker 02:
Thank you, Your Honor.

[00:28:28] Speaker 00:
There are two points I'd like to make.

[00:28:30] Speaker 00:
One is going back to thinking about the Ronnie Sanchez's declaration that particularly on the excerpt of the record 1831.

[00:28:41] Speaker 00:
uh, through 33.

[00:28:41] Speaker 00:
Um, this statement in the paragraph says that it was from approximately witnessed both.

[00:28:55] Speaker 00:
Where's go for a paragraph to have an estimate that I saw deputy sheriffs and police officers on top of the back of Joseph where pinning down onto the street for eight to 10 minutes.

[00:29:07] Speaker 00:
That statement in of itself

[00:29:09] Speaker 00:
if you view in at this posture prior to trial is that you we take the benefit of the doubt that it was longer than two minutes doesn't that pretty clearly include the postal when he calls them deputy sheriffs and police officers but

[00:29:24] Speaker 04:
this whole scuffle on the ground starts with parents and then postal officers, right, before the Pollock even gets there.

[00:29:35] Speaker 00:
That is correct.

[00:29:36] Speaker 04:
And at that point... Palacios was one of the people holding them down earlier.

[00:29:41] Speaker 00:
Correct.

[00:29:42] Speaker 00:
And with that said, he said it was about three minutes of holding that down.

[00:29:46] Speaker 00:
So if we're starting to do deductions from the time of people doing it, it would be 12 minutes left from 15.

[00:29:51] Speaker 00:
I think there's evidence of reason.

[00:29:53] Speaker 04:
15 starts when he's running through traffic and grabbing baby strollers and throwing signs.

[00:29:58] Speaker 00:
And then the last point I would like to make is, as it relates to the resisting after handcuffing, the struggle could be struggling for air and not him actually resisting.

[00:30:10] Speaker 00:
And the courts that I briefed have actually mentioned that it's viewing the light most favorable to plaintiff, that that struggle of being on the ground could have been him gasping for air.

[00:30:19] Speaker 00:
And for that, I submit to the court.

[00:30:21] Speaker 00:
If there's no further questions.

[00:30:22] Speaker 01:
Thank you very much council both sides for your helpful arguments this morning.

[00:30:26] Speaker 01:
The matter submitted that concludes our argument calendar for today so the court will be in recess until tomorrow morning.

[00:30:34] Speaker 03:
All rise.

[00:30:43] Speaker 01:
This court stands in recess until tomorrow morning.