[00:00:04] Speaker 02:
Good morning, and may it please the court.

[00:00:07] Speaker 02:
Dawn Flores-Auster on behalf of the appellants.

[00:00:10] Speaker 03:
You're talking fairly softly.

[00:00:13] Speaker 03:
Can you hear her OK, Judge Schroeder?

[00:00:16] Speaker 03:
Does she need to speak up a little bit?

[00:00:18] Speaker 03:
Just speak up a little bit, OK?

[00:00:20] Speaker 02:
Certainly, Your Honor.

[00:00:22] Speaker 02:
Pardon me.

[00:00:23] Speaker 02:
Dawn Flores-Auster appearing on behalf of the appellants and the defendants.

[00:00:28] Speaker 02:
If it's acceptable to the court, the defendants would request to proffer their argument today in two parts.

[00:00:35] Speaker 02:
The first part would be the question of the court's ability to entertain this interlocutory appeal in the first instance.

[00:00:44] Speaker 02:
And the second question will be the application of the qualified immunity doctrine.

[00:00:50] Speaker 02:
We know from three principal cases, one of them being the Supreme Court case of Mitchell versus Forsyte, the case of Kennedy versus City of Ridgefield, and the Rodriguez versus City of Los Angeles case.

[00:01:07] Speaker 02:
Those are Ninth Circuit cases.

[00:01:10] Speaker 02:
Those cases all indicate that an appellant has a right to be before the Ninth Circuit if, in fact,

[00:01:19] Speaker 02:
The appeal only challenges the purely legal question of whether or not there was sufficiently clearly established law for the determination as to whether or not qualified immunity would apply.

[00:01:32] Speaker 03:
Okay, so what's your best case supporting jurisdiction here?

[00:01:35] Speaker 03:
And I think what the other side was claiming, that you didn't present the facts in the light most favorable to the plaintiffs, and therefore we should dismiss the appeals.

[00:01:45] Speaker 03:
So what's your best case?

[00:01:48] Speaker 02:
The best case would be, I would point the court to the opening brief at pages 13 and 14, the replacement brief at the reply 13 through 17.

[00:02:00] Speaker 02:
The cases that I just cited all principally stand for the same proposition, Your Honor, that as long as we are only presenting a question of law to the court,

[00:02:12] Speaker 02:
then it is acceptable for this interlocutory appeal to be before the court.

[00:02:17] Speaker 02:
I believe that the plaintiff may have mistaken the proposition that defendants represented the statement of facts in the opening brief with the question of whether or not those facts were relied upon for the purposes of the appeal.

[00:02:39] Speaker 02:
in no uncertain terms, and we have repeatedly stated that throughout the course of the briefing, that there was a problem with us perhaps asking the court to make an adjudication of facts or taking the position that there were insufficient facts to support the court's holding that is not at issue here.

[00:03:05] Speaker 03:
Well, sometimes it can seem confusing because

[00:03:09] Speaker 03:
that I'm just going to say hypothetically, as we haven't conferenced on this, so I don't know where the court's going to come out on this.

[00:03:19] Speaker 03:
And I can only speak for myself tentatively.

[00:03:24] Speaker 03:
I think you have a bit of a problem on the excessive force in the sense that there do appear to be some

[00:03:36] Speaker 03:
disputed facts over whether the car was going backwards.

[00:03:41] Speaker 03:
Now, that, we can't make that factual determination here.

[00:03:48] Speaker 03:
I don't think that necessarily defeats our jurisdiction, but it would defeat the qualified immunity on that issue, because if taken the facts most favorably to the plaintiffs, I'm going to call them here, who are, they're now the appellees,

[00:04:06] Speaker 03:
that they're taking the position that the car wasn't backing up, it wasn't a threat.

[00:04:13] Speaker 03:
Now, the officers present different testimony, and there's also some difference of testimony between the officers that were shooting and another officer that ended up on the scene.

[00:04:25] Speaker 03:
I don't know how I could resolve that here.

[00:04:29] Speaker 03:
I still think I could have jurisdiction to decide the issue.

[00:04:34] Speaker 03:
But I don't know how I can resolve those disputed facts.

[00:04:39] Speaker 02:
I don't know, Your Honor, that there are actually disputed facts that are being presented by the appellants here.

[00:04:46] Speaker 03:
Well, you have one officer saying they never saw, that did not see the taillights, okay?

[00:04:51] Speaker 03:
You have two saying they could see the car backing up.

[00:04:55] Speaker 03:
You have, and they say that there was, they were bumped and they were thrown back.

[00:05:00] Speaker 03:
There's also testimony, if I'm looking at the entire record, that you can, and I know my car's this way too.

[00:05:08] Speaker 03:
My car, a light will come on and tell me if someone's bumped me.

[00:05:12] Speaker 03:
Okay, another judge backed into my car in the parking lot, in the judge's parking lot.

[00:05:17] Speaker 03:
I get in my car and it says someone's bumped you.

[00:05:19] Speaker 03:
There was no damage, but it could show a collision.

[00:05:24] Speaker 03:
You have an expert saying that didn't,

[00:05:26] Speaker 03:
that doesn't show that there was a collision.

[00:05:29] Speaker 03:
So if there wasn't a collision, if they believe that witness, then they might believe that the car wasn't backing up.

[00:05:36] Speaker 03:
So I just don't see how we can resolve all of those issues.

[00:05:41] Speaker 02:
Your Honor, during the course of oral argument, and this is pointed out at footnote nine of docket 103, which is the court's order on the summary judgment motion, the plaintiff admitted that the car was moving backwards.

[00:05:56] Speaker 02:
Quite frankly, that is the only fact on which the appellants rely when arguing before the court.

[00:06:04] Speaker 02:
The question of whether or not there was a collision... Well, the plaintiff's deceased.

[00:06:08] Speaker 03:
I mean, the actual person driving the car.

[00:06:11] Speaker 03:
So he didn't admit he was backing up, right?

[00:06:18] Speaker 02:
Certainly not.

[00:06:18] Speaker 02:
But counsel during the course of oral argument did do that.

[00:06:22] Speaker 02:
The district court inquired of counsel

[00:06:25] Speaker 02:
whether or not there was a question regarding the reversal of the car.

[00:06:32] Speaker 02:
And counsel admitted, and we certainly deal with this in the opening brief and in the reply brief.

[00:06:38] Speaker 01:
And so what precisely did counsel say in admitting?

[00:06:42] Speaker 01:
I mean, this testimony from the two officers who did the shooting is pretty dramatic.

[00:06:48] Speaker 01:
That is to say that the backup lights came on,

[00:06:52] Speaker 01:
The wheels spun, gravel was spit out, bumped the patrol vehicle.

[00:06:58] Speaker 01:
The patrol vehicle was pushed one to two feet in reverse.

[00:07:02] Speaker 01:
I mean, that's different from saying, well, yes, the car might have backed up a little.

[00:07:09] Speaker 01:
I mean, so what precisely did the lawyer say?

[00:07:12] Speaker 02:
Precisely, Your Honor.

[00:07:15] Speaker 02:
A plaintiff's counsel indicated that the car moved backward.

[00:07:20] Speaker 02:
There was some colloquy between the district court and council as to whether that was an intentional act or whether the car was in reversed.

[00:07:30] Speaker 02:
That was not resolved.

[00:07:32] Speaker 01:
And we do know that afterwards the car was discovered not in reverse.

[00:07:36] Speaker 01:
It was in park.

[00:07:37] Speaker 02:
Correct.

[00:07:38] Speaker 02:
Correct.

[00:07:38] Speaker 02:
There was no collision.

[00:07:39] Speaker 02:
There are some, pardon me, there's some photographs indicating the proximity of the patrol car to

[00:07:46] Speaker 02:
the vehicle that the decedent was operating at the time.

[00:07:49] Speaker 02:
So we know that it was close.

[00:07:52] Speaker 02:
But the question of whether or not there was dirt being drawn up or the question of the speed, I know there was some evidence that was used by plaintiffs to support the proposition.

[00:08:07] Speaker 01:
To come back to my question, what precisely did the lawyer say?

[00:08:10] Speaker 02:
He said that the car was moving backwards.

[00:08:13] Speaker 02:
And then there was some colloquy between the court.

[00:08:15] Speaker 02:
That's essentially all, and that's all that defendants or appellants are relying on here.

[00:08:21] Speaker 02:
All the other questions that your honor has brought up or potential issues of fact are not necessary to the adjudication of this case.

[00:08:31] Speaker 02:
It's so telling that the district court

[00:08:34] Speaker 02:
did not, in analyzing the qualified immunity question, separate out what was a disputed fact with what was actually the question that was before the court, which was the application of qualified immunity, and whether there was a robust amount of cases

[00:08:56] Speaker 02:
that would support the court's reliance on cases such as Acosta and the rest of the cases that the district court relied on.

[00:09:06] Speaker 02:
That is really the focus of Appellant's appeal, as to whether or not there was clearly established law that would have directed the deputies

[00:09:17] Speaker 02:
to know exactly when there was a cessation of activity.

[00:09:22] Speaker 02:
It's plaintiff's position that once the car, the Buick, the decedent was operating, struck the mailboxes, that that was the end of it, and that we can rely on cases such as Acosta to determine the state of the law as it existed at the time.

[00:09:41] Speaker 02:
But the cases before that,

[00:09:44] Speaker 02:
This case before the court today is much more nuanced than that.

[00:09:49] Speaker 03:
There was a... Well, doesn't it matter, though?

[00:09:52] Speaker 03:
Okay, obviously, let's just say it's not disputed that the officers thought they were in danger, that their lives were in danger.

[00:10:04] Speaker 03:
But the test isn't subjective, is it?

[00:10:06] Speaker 03:
It's a, what would an objective officer, what would a reasonable officer have thought, right?

[00:10:13] Speaker 03:
So doesn't it matter whether the car was just rolling a little bit or whether it was accelerating, whether they believe the plaintiff's definition as to why it moved or whether they believe the officer's?

[00:10:29] Speaker 03:
And we can't make that determination here.

[00:10:33] Speaker 02:
It is important to note, Your Honor, that I believe it's undisputed that the two deputies were behind the A-frame, which we all agree was the most safest position for the officers to be at at the time of the shooting.

[00:10:47] Speaker 02:
I think as I reviewed this and getting ready for oral argument today, I think there was perhaps an over-reliance on the proposition that

[00:11:00] Speaker 03:
Does it matter whether the car was just rolling or whether it was going faster?

[00:11:06] Speaker 02:
No.

[00:11:06] Speaker 03:
You're saying a car, if it was rolling, that every officer would have thought that was reasonable to shoot?

[00:11:12] Speaker 02:
Certainly not.

[00:11:13] Speaker 02:
Certainly not.

[00:11:14] Speaker 02:
Certainly not.

[00:11:15] Speaker 02:
It's the combination of the high-speed chase that had taken place previously, along with the fact that there was no formal cessation

[00:11:26] Speaker 02:
Maybe formal isn't the correct word.

[00:11:28] Speaker 03:
Well, that may be why you win at trial.

[00:11:30] Speaker 03:
But the analysis for qualified immunity, I want to take you to another issue.

[00:11:34] Speaker 03:
I think we understand your position.

[00:11:36] Speaker 03:
And I'm just, the other two, there's some 14th Amendment claims.

[00:11:42] Speaker 03:
Yes, yes.

[00:11:44] Speaker 03:
I'm having a hard time seeing any evidence, and that's a subjective test.

[00:11:49] Speaker 03:
I'm having a hard time.

[00:11:50] Speaker 03:
The district court said the officers were not entitled to qualify to immunity because the only thing I found on the record is I'm going to shoot.

[00:12:01] Speaker 03:
I'm a shoot or whatever.

[00:12:03] Speaker 03:
So how does that show that there was anything other than a law enforcement

[00:12:10] Speaker 03:
issue here.

[00:12:11] Speaker 02:
Well, I would agree with Your Honor.

[00:12:13] Speaker 02:
There was no evidence that was presented that indicated there was activity that shocked the conscience, if I understand Your Honor's question exactly.

[00:12:21] Speaker 03:
Well, is there any other evidence besides I'm going to shoot?

[00:12:25] Speaker 03:
Because the logical inference from that, if you're standing next to another officer that we know and they're both unloading their guns,

[00:12:32] Speaker 03:
If you're going to say, I'm going to shoot, the logical inference to me would be you don't want the other officer to go charging up to the car so that you shoot the other officer.

[00:12:43] Speaker 03:
But I don't see anything in the record that they know each other, that there's any sort of grudge against this particular defendant.

[00:12:52] Speaker 03:
So I'm going to ask the other side that.

[00:12:54] Speaker 03:
So get ready for that.

[00:12:57] Speaker 03:
Do you want to save any time for rebuttal?

[00:12:58] Speaker 02:
I do.

[00:12:59] Speaker 02:
I've got two minutes left.

[00:13:00] Speaker 02:
I'd like to save that for rebuttal, Your Honor.

[00:13:02] Speaker 02:
OK.

[00:13:02] Speaker 03:
Do either of you have any questions of a balanced lawyer at this time?

[00:13:09] Speaker 01:
Good.

[00:13:10] Speaker 01:
Thank you.

[00:13:10] Speaker 03:
OK.

[00:13:10] Speaker 03:
You can reserve the balance.

[00:13:12] Speaker 01:
Thank you.

[00:13:12] Speaker 03:
Thank you.

[00:13:29] Speaker 03:
Good morning.

[00:13:30] Speaker 00:
Good morning, Your Honors.

[00:13:31] Speaker 00:
Kaveh Nawab.

[00:13:32] Speaker 00:
I please the court.

[00:13:33] Speaker 00:
I'm here on behalf of plaintiffs appellees.

[00:13:37] Speaker 00:
I think this court and courts throughout the nation, as well as the Supreme Court, have repeatedly and consistently held that for an officer to use deadly force, there must be imminent harm.

[00:13:48] Speaker 00:
And as this court was alluding to just now, the facts just don't state that.

[00:13:55] Speaker 00:
We have numerous facts in dispute, and this goes to the heart of the jurisdictional issue.

[00:13:59] Speaker 00:
There are numerous facts in dispute.

[00:14:02] Speaker 00:
Now, in the reply brief, the appellants conceded that they're not relying on what was stated here to be the dramatic statements by the officers, that the Buick reversed, hit their vehicle, tire spinning, reverse lights on, push their vehicle back, both of them lost their footing, then they shot.

[00:14:21] Speaker 00:
That was the justification for the shooting.

[00:14:25] Speaker 00:
What do we know?

[00:14:25] Speaker 00:
We know that there was no collision because their own... I think I went through all of that.

[00:14:30] Speaker 03:
I mean, that may be... You may not win a trial, but I didn't hear anything that said that there aren't disputed facts.

[00:14:39] Speaker 03:
But I still think we have jurisdiction.

[00:14:42] Speaker 03:
Tentatively, I'm saying that because just because there are some disputed facts, it doesn't mean I can't look at everything here.

[00:14:50] Speaker 03:
and say, OK, I give you all inferences, and all inferences are that the car was rolling back slowly or whatever, that there wasn't a collision, and it's up to a jury to decide whether a reasonable officer would face with the circumstances.

[00:15:07] Speaker 03:
And they're going to have to decide if they believe the officer said trial, too.

[00:15:11] Speaker 00:
Absolutely, Your Honor.

[00:15:13] Speaker 03:
And I don't know whether they're going to or not.

[00:15:15] Speaker 00:
That may be the case, but I think this is a case that needs to be decided by the trier of fact, which is the jury.

[00:15:21] Speaker 00:
They need to see all of the evidence and look to decide whether, at the moment of the shooting, there was an imminent harm that the officers were facing.

[00:15:30] Speaker 00:
That is the common thread throughout all use of force cases.

[00:15:34] Speaker 03:
So I see excessive force here.

[00:15:36] Speaker 03:
The 14th Amendment claims, I see no evidence.

[00:15:41] Speaker 03:
Well, Your Honor, I- Of that.

[00:15:42] Speaker 03:
And I'm not, those are before us, too.

[00:15:46] Speaker 03:
So convince me, you know, I'm, and that's what the district court said.

[00:15:50] Speaker 03:
I'm going to shoot creates a triable issue.

[00:15:54] Speaker 00:
Well, Your Honors, if I may speak to that, I think that under the purpose to harm standard, and the court and the district court stated that it goes beyond just I'm going to shoot.

[00:16:03] Speaker 00:
Of course, that was one part of it.

[00:16:05] Speaker 00:
But the other part of it is that there might have been some kind of

[00:16:08] Speaker 00:
a grudge may be the right word to use here or not, but because of the police chase, that at the moment when the officer said, I'm going to shoot, there was no imminent harm.

[00:16:18] Speaker 00:
And if the jury believes there's no imminent harm, then they can easily also find that there was a 14th Amendment violation here.

[00:16:24] Speaker 00:
Because if you look at the totality instance, if the officers are not under an imminent harm and the officer says, I'm going to shoot, when there's no reasonable officer that believes there's an imminent harm,

[00:16:33] Speaker 00:
then that can be enough to satisfy the purpose to harm standard under the 14th Amendment.

[00:16:39] Speaker 01:
So what's the standard under the 14th Amendment?

[00:16:41] Speaker 01:
Do we need some sort of egregiousness?

[00:16:43] Speaker 01:
I mean, how do we articulate that standard?

[00:16:45] Speaker 00:
Well, there's the shocks to conscience.

[00:16:47] Speaker 00:
There's the deliberate indifference.

[00:16:49] Speaker 00:
And I would argue, and I think the evidence here does demonstrate that there was time.

[00:16:55] Speaker 00:
I mean, the officers pull over.

[00:16:57] Speaker 00:
They put their car in park.

[00:16:58] Speaker 00:
They get out.

[00:17:00] Speaker 00:
The Buick is there.

[00:17:02] Speaker 00:
And whether it rolled slowly or moved, it was still in park at the time of the shootings.

[00:17:07] Speaker 00:
And so the officers, if they have a grudge because of this police chase that may have just ensued, but the chase had come to an end.

[00:17:15] Speaker 00:
And that's based on Deputy Lopez, who arrived mid-shooting.

[00:17:21] Speaker 00:
didn't see the reverse lights, didn't see a collision, didn't see tire spinning, and in fact, he testified when he got out of his car as the shooting's unfolding, he didn't think there was an imminent harm.

[00:17:31] Speaker 00:
Now, if you take all of that evidence, when a jury's hearing that... He didn't think he was.

[00:17:35] Speaker 03:
Well, that's true, but he also had a... That's different than what the officer's perspective.

[00:17:40] Speaker 03:
He didn't think he was in imminent harm.

[00:17:42] Speaker 03:
That's what it shows, and that's why... So he isn't charged with excessive force here.

[00:17:48] Speaker 00:
No, he's not, Your Honor, but I think it's informative for the jury.

[00:17:52] Speaker 00:
And at the time that he pulled up...

[00:17:54] Speaker 00:
Most of those facts that the officers that are here, that are defendants here, they've made certain specific statements under oath.

[00:18:00] Speaker 00:
And then you have an officer who's there, has a clear view of the Buick in disputing all of that, and says, well, I didn't shoot because I didn't think there was imminent harm to me.

[00:18:09] Speaker 03:
Do they know your client, the deceased man?

[00:18:12] Speaker 03:
Did they know him?

[00:18:13] Speaker 00:
No.

[00:18:13] Speaker 00:
There's no indication of that.

[00:18:14] Speaker 00:
There's absolutely no evidence of that.

[00:18:16] Speaker 03:
There is evidence that they observed a vehicle violation or infractions, a couple of them possibly.

[00:18:24] Speaker 03:
They call it in.

[00:18:25] Speaker 03:
There is evidence that a chase ensued, that your client didn't yield and was going up to 85 miles an hour in an area that wasn't, well, there's no 85 mile an hour speed limit anywhere, but it sounds like it was residential.

[00:18:41] Speaker 03:
There were other infractions that were completed.

[00:18:43] Speaker 03:
They called for backup, and this all happened over a short period of time.

[00:18:49] Speaker 03:
So if they'd really just wanted to hurt the guy,

[00:18:53] Speaker 03:
Why did they call in for backup?

[00:18:54] Speaker 03:
Why did they... I'm in a shoot.

[00:18:57] Speaker 03:
I just, I don't see how that's enough.

[00:19:01] Speaker 00:
Well, if I may speak to that, that's true.

[00:19:03] Speaker 00:
There were some traffic violations.

[00:19:04] Speaker 00:
I mean, the pullover initially was for tinted windows and a temporary license plate.

[00:19:09] Speaker 00:
The car was registered to him.

[00:19:10] Speaker 03:
There was no issues with the... Your client had a kid in the car and took the officers on an 85 mile an hour chase.

[00:19:19] Speaker 00:
Understood, Your Honor.

[00:19:20] Speaker 03:
So I just don't see that

[00:19:24] Speaker 03:
I can see where arguably it was a chase gone bad and that a jury could come back and say that the officers used excessive force, but I don't see anything in the record that indicates that this was anything other than a police enforcement thing that a jury might think excessive force was used, but not that they were picking on your client.

[00:19:46] Speaker 00:
Well, Your Honor, respectfully, I don't believe the standard is picking on the client.

[00:19:50] Speaker 00:
I think the bottom line is, I mean, one piece of evidence that we haven't spoken about.

[00:19:54] Speaker 03:
There's got to be a subjective intent to do that is other than a law enforcement purpose, right?

[00:19:59] Speaker 00:
That's accurate.

[00:20:00] Speaker 00:
And I think at the end of the day, what the evidence shows is that he actually braked before the stop.

[00:20:06] Speaker 00:
I think 68 feet of braking.

[00:20:10] Speaker 00:
So he was, from our perspective, perhaps a jury will see an individual who was surrendering,

[00:20:15] Speaker 00:
There was no imminent harm.

[00:20:17] Speaker 00:
And then the officers get out.

[00:20:19] Speaker 00:
And within a short period of time, I'm going to shoot when there's no real harm and kill the individual.

[00:20:25] Speaker 00:
And I think a jury, if they find that there's no imminent harm, can also find that the officer was acting with either deliberate indifference or the purpose to harm here.

[00:20:33] Speaker 00:
And I think the evidence does.

[00:20:34] Speaker 01:
Let me ask a slightly different question.

[00:20:37] Speaker 01:
Is there a different remedy depending on whether this is an excessive force case or whether this is an intent to kill case?

[00:20:45] Speaker 00:
uh... not necessarily different remedy but uh... under under the the fourteenth amendment the parents who are individuals they have standing here as well to but not necessary different remedy ultimately uh... for for the uh... the uh...

[00:21:03] Speaker 00:
the plaintiffs.

[00:21:04] Speaker 00:
There is a punitive damages claim as well here, too, but that was unbriefed.

[00:21:09] Speaker 00:
So I do think, though, under the evidence here, a reasonable officer would not have shot.

[00:21:14] Speaker 00:
And because of those facts, a jury could find that the officers acted with purpose to harm.

[00:21:19] Speaker 03:
OK, but let me, if we're going to deny them qualified immunity on that, what is your best case

[00:21:27] Speaker 03:
that establishes that the right to harm was clearly established.

[00:21:36] Speaker 03:
What is your best case?

[00:21:37] Speaker 00:
I believe the Wilkerson case, Your Honor, sheds light on that.

[00:21:42] Speaker 00:
I think that's a key case here.

[00:21:45] Speaker 00:
I believe there was a police chase in that case as well, too.

[00:21:52] Speaker 00:
There's a number of 14th Amendment.

[00:21:53] Speaker 03:
Because you have the two prongs to the qualified immunity.

[00:21:56] Speaker 00:
Understood.

[00:21:56] Speaker 03:
The first has got to be clearly established.

[00:21:58] Speaker 03:
And if you don't have a case that clearly establishes it, then qualified immunity can be granted on the second prong, correct?

[00:22:07] Speaker 00:
That's accurate, Your Honor.

[00:22:09] Speaker 00:
But I do think the Wilkerson case is a key case there, where the court in that case, this court, discussed the purpose to harm standard.

[00:22:20] Speaker 00:
And the shock's the conscience of deliberate indifference.

[00:22:22] Speaker 00:
But I think the deliberate indifference, sometimes there's a timing issue.

[00:22:26] Speaker 00:
And again, we do have that here because there was time to deliberate.

[00:22:29] Speaker 00:
And that's the key with the I'm going to shoot.

[00:22:32] Speaker 00:
The officer thought he was not under an imminent threat and still shot 26 shots through the back windshield of this vehicle when they were not faced with an imminent harm of danger.

[00:22:44] Speaker 00:
And I think a jury can find a 14th Amendment violation under those facts.

[00:22:49] Speaker 00:
Because that evidence is the time to think about what actions the officers are going to take.

[00:22:54] Speaker 00:
And I think that's key in the analysis here under qualified immunity, under the excessive force factors here as well.

[00:23:04] Speaker 00:
And I want to just discuss one other thing that was brought up with regards with what counsel during the motion summary judgment stated with the reversal because appellants repeatedly in their briefing

[00:23:16] Speaker 00:
of state reversed, the car reversed, the car reversed.

[00:23:19] Speaker 00:
During the motion for summary judgment hearing, and this is in the volume one of the record 55, counsel stated this was not a situation where Ruiz actually put the car in reverse and backed up.

[00:23:34] Speaker 00:
And so there was never a concession from the plaintiffs at the district court level that this car

[00:23:39] Speaker 00:
that Mr. Ruiz put the car in reverse and slammed into the officers or reversed and accelerated to them.

[00:23:45] Speaker 00:
Now, what we do know is, again, the car hit the mailboxes, may have rolled back slightly.

[00:23:50] Speaker 00:
In those cases, Acosta, Tubar, for decades within this district have held that you cannot shoot at a slow moving vehicle when the officers are not under imminent harm.

[00:24:04] Speaker 01:
after the shooting was finished was not in reverse was it in drive it was in it was not in drive it was in neutral it was in neutral so it could have rolled back just on its own exactly we do know from the record that it was in neutral

[00:24:20] Speaker 00:
Well, that's the photographs, because there's photographs taken, and it does show that.

[00:24:26] Speaker 00:
And that's why it may have rolled back ever so slightly.

[00:24:30] Speaker 00:
But what evidence do we have?

[00:24:31] Speaker 00:
We know there was the recorder in the vehicle that captures vehicle collisions above five miles per hour, recorded no collision.

[00:24:39] Speaker 00:
There's no physical damage on either of the vehicles evidencing a collision.

[00:24:44] Speaker 00:
And so all the inferences, when taken in the favor of the plaintiff here,

[00:24:50] Speaker 03:
Demonstrate that there was no imminent harm faced by the officers and if they had time to deliberate then the 14th amendment also applies as well Give me the facts of Wilkerson Wilkerson I'm gonna ask the other side to come back with it, too So tell me why that put the officers why it was a clearly established under these circumstances.

[00:25:11] Speaker ?:
I

[00:25:12] Speaker 00:
I'm not mistaken Wilkerson, Your Honor, as the case where the car was spinning and the officer was, there was one officer on one side, one officer on the other side, and the tires were spinning and one officer thought the other officer was about to get run over and shot into the vehicle and killed the driver.

[00:25:30] Speaker 00:
In that instance, the court just embarked on an analysis of the 14th Amendment and decided that, well,

[00:25:37] Speaker 00:
If the officer had time to contemplate here, that's the key analysis.

[00:25:41] Speaker 00:
That's the key analysis of whether the officers had time to deliberate.

[00:25:45] Speaker 03:
And I think based on the fact here... They say the officers had time to deliberate in the Wilkerson case?

[00:25:53] Speaker 00:
I don't believe the officers had time to deliberate because you could not see the other officer.

[00:25:57] Speaker 00:
The officer had fallen down on the ground.

[00:26:01] Speaker 00:
And so in that case, that's where the analysis was.

[00:26:04] Speaker 00:
But I think it sheds light on just what the analysis is here, which is the deliberate indifference.

[00:26:07] Speaker 03:
So the facts don't really put the officers on notice here in that case, do they?

[00:26:12] Speaker 00:
Well, I think the facts may not.

[00:26:14] Speaker 00:
But what we do know is the facts of the other vehicle cases.

[00:26:17] Speaker 00:
And that should have put the officers on notice here, which is that you cannot shoot into a slow moving vehicle.

[00:26:22] Speaker 03:
And that's excessive force.

[00:26:25] Speaker 03:
That's an excessive force situation.

[00:26:28] Speaker 00:
That is an excessive force situation.

[00:26:30] Speaker 03:
OK, so give me your best case on a deliberate indifference or 14th Amendment that says the officers were on notice saying, I'm going to shoot, that they're denied qualified immunity on that.

[00:26:46] Speaker 00:
There's also a, well, I think the court has numerous times held that you don't have to have an exact similar signature.

[00:26:53] Speaker 00:
But in the court's order on the district court, there was white versus poly that the court relied on as well to determine whether or not there was a 14th Amendment violation.

[00:27:05] Speaker 00:
And the court stated there, as discussed above, one possible interpretation of the facts of the defense were not in any real danger but used deadly force

[00:27:14] Speaker 00:
and did so with an intent to harm.

[00:27:16] Speaker 00:
And so whether there's a specific exact case under the 14th Amendment with the same facts, that may not be the case here.

[00:27:24] Speaker 00:
But we don't need a case with exactly the same facts.

[00:27:27] Speaker 01:
Well, it's obvious that they intended to harm.

[00:27:29] Speaker 01:
You don't shoot at someone with no intent to harm.

[00:27:33] Speaker 01:
But I'm having trouble differentiating the case in front of us from a sort of a garden variety excessive force case that we see all the time.

[00:27:42] Speaker 00:
If I may, if there is no imminent harm, as the facts from plaintiff's perspective demonstrate, if there was no imminent harm, then shooting 26 shots through the back window of a vehicle, that can be considered deliberate indifference, especially when you have the time to think about the shooting.

[00:28:00] Speaker 00:
And that's what's evidenced by the I am going to shoot statement.

[00:28:04] Speaker 00:
And so that's the key.

[00:28:05] Speaker 00:
If there was no harm, if there was no imminent harm,

[00:28:10] Speaker 00:
then shooting 26 shots in that manner through the back window of the vehicle can be evidence of deliberate indifference, shocking the conscience, and a purpose to harm.

[00:28:20] Speaker 00:
Those are the key aspects of a 42th Amendment claim.

[00:28:24] Speaker 00:
And so I think that's where it is.

[00:28:25] Speaker 00:
And whether or not there's an exact case, I think this court has numerous times said that there does not need to be an exact factual scenario.

[00:28:33] Speaker 03:
All right, your time's up.

[00:28:34] Speaker 03:
Let me find out if my colleagues have any additional questions of you.

[00:28:40] Speaker 03:
Apparently, there are no additional questions.

[00:28:42] Speaker 03:
Thank you for your argument.

[00:28:50] Speaker 03:
Don't talk till you get to the microphone.

[00:28:54] Speaker 03:
Pardon me, Your Honor.

[00:28:55] Speaker 02:
In the Wilkinson's case that plaintiff relies on for the 14th Amendment, qualified immunity was applied.

[00:29:03] Speaker 02:
It wasn't not applied.

[00:29:05] Speaker 02:
I would also direct the court's attention to first one.

[00:29:10] Speaker 03:
You're saying the court granted qualified immunity because under the factual circumstances there that it wasn't clearly a stout.

[00:29:18] Speaker 03:
Was it under the first or the second prong?

[00:29:20] Speaker 02:
I believe it was under the first prong, Your Honor, if I remember correctly.

[00:29:26] Speaker 02:
OK.

[00:29:28] Speaker 02:
I would also point to the court's order again.

[00:29:31] Speaker 02:
That's at one, pardon me, ER 31, where the court essentially admits, for lack of a better term, the absence of case law that would establish the application of qualified immunity or not to the 14th Amendment claim.

[00:29:51] Speaker 02:
So the court indicated that there wasn't sufficient case law just to establish that.

[00:29:58] Speaker 03:
basically said, I can't find anything.

[00:30:00] Speaker 03:
Correct.

[00:30:01] Speaker 01:
That's right.

[00:30:01] Speaker 01:
Do you agree that your shift was in neutral?

[00:30:06] Speaker 01:
Yes, I do, Your Honor.

[00:30:07] Speaker 02:
I do.

[00:30:07] Speaker 02:
And that's a point.

[00:30:08] Speaker 01:
That then makes it consistent with rolling back a little bit.

[00:30:13] Speaker 02:
Correct.

[00:30:14] Speaker 02:
And defendants, appellants have no problem with that.

[00:30:17] Speaker 02:
I did not suggest to the court, at least I hope I didn't, that we believe that

[00:30:23] Speaker 02:
Plaintiffs' Council indicated that the vehicle was in reverse.

[00:30:27] Speaker 02:
We simply indicated it was rolling backwards.

[00:30:30] Speaker 01:
And your argument is rolling backwards is enough to justify the shooting.

[00:30:34] Speaker 02:
That's correct, Your Honor.

[00:30:36] Speaker 01:
So that gives me the following question.

[00:30:39] Speaker 01:
You then conceded at least the possibility that the officers were lying.

[00:30:45] Speaker 02:
Well, I don't know that credibility is at issue here, that they were lying.

[00:30:48] Speaker 02:
I don't even know how to respond to that, Your Honor.

[00:30:51] Speaker 01:
It's not really a question.

[00:30:52] Speaker 01:
Because the officers gave a very dramatic story.

[00:30:55] Speaker 01:
And you're saying, well, at least we're settled on the fact that it was rolling gently backwards.

[00:31:02] Speaker 02:
No, I'm only, it looks like my time is out.

[00:31:05] Speaker 02:
May I continue?

[00:31:06] Speaker 02:
Please, please.

[00:31:07] Speaker 02:
OK, certainly.

[00:31:08] Speaker 02:
I'm not suggesting that the, how should I say,

[00:31:14] Speaker 02:
for purposes of qualified immunity, though the question of whether or not it was rolling backwards is sufficient.

[00:31:23] Speaker 02:
For purposes of determining whether or not there was a constitutional violation or use of excessive force in the first instance, then you would look at those facts.

[00:31:32] Speaker 03:
But I think the case law— But someone's got to decide whether it just was going slowly or whether it was

[00:31:41] Speaker 03:
presented a threat to a reasonable officer.

[00:31:45] Speaker 03:
How can we decide that?

[00:31:47] Speaker 02:
We would look, Your Honor, at the case law that the Supreme Court has set forth about what level of specificity needs to be present in determining whether a case

[00:31:59] Speaker 02:
is of a robust consensus.

[00:32:03] Speaker 02:
So I understood the court to say earlier that tentatively it may appear that there may be jurisdiction to hear this matter, but we have to leap beyond that and look at what cases the district court relied on when determining qualified immunity could not apply.

[00:32:21] Speaker 02:
They simply are not specific enough, and specificity is particularly important in the Fourth Amendment context.

[00:32:29] Speaker 02:
They were not specific enough to put these officers on notice that after a high-speed chase and, importantly, an inability to see inside the car, the windows were tinted, the officers could not see inside that vehicle.

[00:32:48] Speaker 02:
They could not determine how many people were inside.

[00:32:51] Speaker 02:
They could not determine if those individuals were armed.

[00:32:54] Speaker 02:
No ability to do that.

[00:32:56] Speaker 02:
That alone takes us out of the cases that the court relied on and claims counsel relied on when determining qualified immunity did not apply.

[00:33:05] Speaker 03:
All right.

[00:33:05] Speaker 03:
I think we understand both of your arguments.

[00:33:08] Speaker 03:
Thank you both for your argument.

[00:33:09] Speaker 03:
This matter will stand submitted today.

[00:33:11] Speaker 03:
Thank you.