[00:00:00] Speaker 01:
Good morning may please the court.

[00:00:02] Speaker 01:
Tom Miller on behalf of Appellants Christopher Myers and Ryan Beecroft to Seattle police officers.

[00:00:10] Speaker 01:
This is an appeal of the, it's an interlocutory appeal of the district court's denial of qualified immunity to Officer Myers and Officer Bancroft, who are two Seattle police officers that had to use deadly force to defend their own lives and the lives of their fellow officers from a domestic violence suspect who had just threatened his live-in girlfriend with a knife.

[00:00:35] Speaker 01:
She was in the bathroom, called 911, officers responded.

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When they arrived, they announced themselves as Seattle Police, kicked the door, obviously alerting Mr. Smith, who was the subject of their presence.

[00:00:51] Speaker 01:
He refused to open the door.

[00:00:53] Speaker 01:
The officers then breached the door to make an exigent entry, and upon doing so, were greeted with Mr. Smith, just seven to 10 feet away, holding a knife down at his waist in his right hand, and they gave him

[00:01:06] Speaker 01:
commands to drop the knife.

[00:01:09] Speaker 01:
He didn't drop the knife, he advanced on the officers, got to within four and a half feet of Officer Myers and five and a half feet of Officer Beecroft, at which point the officers fired their weapons.

[00:01:23] Speaker 03:
Did the officers at any time say, or we will shoot?

[00:01:27] Speaker 01:
No, they did not.

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And how long elapsed between the time the door is down and the shooting?

[00:01:33] Speaker 01:
Six seconds.

[00:01:35] Speaker 03:
And how many movements was Mr. Smith making during that time?

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He took approximately three steps towards the officers.

[00:01:45] Speaker 03:
I saw the video.

[00:01:46] Speaker 03:
I did not see three steps.

[00:01:48] Speaker 01:
My recollection from looking at the video was at least two, and I think the third took him to the threshold, at which point the officers fired their weapons.

[00:01:56] Speaker 03:
As I saw it, he stood there and then made a kind of a half step forward.

[00:02:02] Speaker 03:
I did not see three steps.

[00:02:03] Speaker 03:
I did not see two.

[00:02:06] Speaker 01:
uh... well the video i guess speaks for itself and regardless he covered uh... and we put it in our in our opening brief a number of feet he advanced towards the officers the officers retreated back to the extent they could but that gets into the question of how far is it reasonable to retreat when you've got a victim

[00:02:25] Speaker 01:
A domestic violence victim who the officers under RCW 1099 are instructed specifically that that is the highest priority above the officer's safety and above the subject's safety.

[00:02:37] Speaker 01:
Katie Nolan, who was the victim in the bathroom.

[00:02:40] Speaker 03:
But as far as they know, that information they have, she is locked in the bathroom.

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She was able to protect herself by locking herself in the bathroom.

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So as far as they know, when they shoot Mr. Smith, she's locked in the bathroom.

[00:02:53] Speaker 01:
They didn't hear locked in the bathroom.

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The dispatch was that she had an object in front of the door, and that's from the CAD in the dispatch.

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And that is a distinction.

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I mean, Officer Beecroft had been in the apartment and knew that those doors are easily breached.

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Just because someone has a door locked doesn't mean somebody can't get at them.

[00:03:12] Speaker 00:
Mr. Miller, did they have any duty to inquire of dispatch?

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There are several allegations that there's some confusion around the facts in the apartment.

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Did they have any responsibility to try to clarify about the blood, the state of the victim, whether it was locked, any of the situations they were approaching?

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They didn't.

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And the reason why is twofold.

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One, this is a very high-urgency situation.

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These are some of the most dangerous calls for the victims and for the officers.

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They needed to get in.

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Time was of the essence.

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The second is that they all testified in their depositions unequivocally.

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The blood and where it may have been located, whether it was inside the bathroom, outside the bathroom, whether it was hers, whether it was his, that didn't matter.

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The core facts that mattered were you've got a domestic violence victim trapped in a house with a gentleman who is threatening to kill her with a knife.

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That is the highest calling of our law enforcement officers is to go and protect those helpless people and that's what they were doing.

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So the notion that they need to pull back and say wait a minute Can you tell me if the blood is outside the bathroom or inside as I understand this officer Myers?

[00:04:28] Speaker 00:
arrived at the scene sometime before the other officers arrived there and were there any inquiries then to try to clarify the situation and make a plan since About how much time was was officer Myers outside of the scene before backup came?

[00:04:44] Speaker ?:
I

[00:04:44] Speaker 01:
seconds.

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It was not long.

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And you see in the body worn as they approach, I mean, he's up there first and then Beecroft and then Knight and Mullio, who are the third and fourth officers, are behind them.

[00:04:59] Speaker 02:
If I understand it, after they kick down the door and they see him, they shout a whole variety of different orders that are not

[00:05:10] Speaker 02:
consistent with one another, which, at a minimum, even a person much more intelligent than he apparently was would have had difficulty understanding

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what to do they say put up your hands then they say let me see your hands then they say get on the fucking ground then they say drop the knife I mean

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Why wouldn't someone in his situation be totally confused by all that?

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Because those are simple commands that are easy to comply with.

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And they're all consistent, largely.

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Drop the knife, get on the ground.

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They have them at gunpoint at that point in time.

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Put your hands up is the first one, I believe.

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That's correct.

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So put your hands up.

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And then you're supposed to get down on the ground and drop the knife wall more or less simultaneously?

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Frankly, at that point in time, it doesn't matter what he does first.

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He wasn't complying with any of those commands.

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Rather than getting on the ground in advance.

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I'm asking you because I think, and by the way, what's the standard we have to apply here?

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Do we have to take, for purposes of this motion, everything most favorably to your adversary?

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Absolutely.

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Okay.

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At that point, why wouldn't he be a reasonable person in his position, let alone a person under the mental problems that he had, not really know what to do?

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Well, in that, what is going through his mind is not our standard that we're looking at.

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We're looking at what would an objectively reasonable officer... Well, that's what I said.

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Well, and why wouldn't an objectively reasonable officer be aware that he and his colleagues are shouting inconsistently demands it?

[00:07:23] Speaker 01:
Because all of those commands get at the same thing.

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Stop what you're doing, drop the knife.

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Drop your hands and drop down the floor and drop the knife.

[00:07:31] Speaker 01:
Why are those consistent?

[00:07:33] Speaker 01:
You can do each of them at the same time.

[00:07:35] Speaker 01:
You can show your hands, drop the knife and get down.

[00:07:39] Speaker 01:
I just did it.

[00:07:40] Speaker 01:
And it's that simple.

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And a reasonable officer with a gentleman holding a knife.

[00:07:44] Speaker 01:
I'll congratulate you.

[00:07:45] Speaker 02:
We won't need to arrest you then in this case.

[00:07:47] Speaker 00:
Well, Mr. Miller, of course, this is all with the benefit of a transcript, I think, on first listen.

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And that's all the listening that the decedent had to do.

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It's quite muddled.

[00:08:02] Speaker 00:
What are we supposed to make out of that in some of our cases that suggest, well, it'd be better to warn.

[00:08:08] Speaker 00:
There was no actual warning.

[00:08:10] Speaker 00:
The question of compliance, to the extent this comes down to compliance with what, the decedent didn't have the transcript to parse all of these different things that are being yelled at him.

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And nor did the officers.

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This is literally split-second decision-making that's contemplated by Graham v. Connor being played out in real time in a matter of six seconds.

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And so my response to that is, what is reasonable for them?

[00:08:32] Speaker 01:
It's reasonable for them to conclude, he knows not to do what he's doing, and yet he's continuing to do it anyway.

[00:08:39] Speaker 01:
I don't have time to wait and see what he's going to do next.

[00:08:41] Speaker 01:
I need to use force to defend myself.

[00:08:43] Speaker 00:
Well, there seemed to be some contemplation before breaking down the door, understanding that he was right behind it, of who was on point, shall we say, who was in lead, who was going to kick down the door.

[00:08:56] Speaker 00:
Why wouldn't it be reasonable then to expect that to continue in terms of communications with a suspect so that one person would be the voice of the law enforcement and be giving the instructions rather than two or three?

[00:09:09] Speaker 01:
Well, I think that's all well and good.

[00:09:12] Speaker 01:
standing here in a courtroom real-time as this thing is playing out.

[00:09:17] Speaker 01:
Officer Beecroft and Officer Myers are both seeing this gentleman not comply with their orders.

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They're doing what comes naturally to police officers in that situation.

[00:09:26] Speaker 03:
Give him orders.

[00:09:30] Speaker 03:
The hallway goes like this.

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They're in the hallway.

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The door is here.

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He's just inside the apartment.

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He has not yet crossed the threshold, although he's basically right at the threshold.

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Am I describing that properly?

[00:09:47] Speaker 03:
So he has not turned the corner and come out into the hallway.

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He's still in the apartment.

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They are in the hallway, which is at right angles to him.

[00:09:55] Speaker 03:
Correct, but they can figure out is it was a reasonable for them when what he has is a knife He does not have a gun he needs to get to them before they will be hurt Is it reasonable for them?

[00:10:08] Speaker 03:
With in that situation to shoot after six seconds without warning if you don't drop it.

[00:10:16] Speaker 03:
We're going to shoot you and

[00:10:16] Speaker 01:
Yes, and I would submit, and I'd like to reserve, we'll say four minutes of my time.

[00:10:21] Speaker 01:
I forgot to do that at the outset, but a subject with a knife at six feet is arguably more dangerous than a subject with a gun at that distance.

[00:10:30] Speaker 01:
They can close that distance in a split second and inflict a mortal or a very serious wound on an officer in the blink of an eye.

[00:10:37] Speaker 01:
So the notion that it's just a knife, the law doesn't recognize that, and the litany of cases cited in our moving brief and in our reply brief

[00:10:44] Speaker 03:
I mean Hart, the Hart case, which just came down in February, just reiterates the point that... You know, I think you're describing accurately both the situation with someone with a knife and our case law, but I looked at the video.

[00:10:58] Speaker 03:
He's at right angles to them.

[00:11:00] Speaker 03:
He's still inside the apartment.

[00:11:02] Speaker 03:
He is, if moving, moving very slowly, and we're only doing six seconds.

[00:11:07] Speaker 03:
They were awful quick to shoot that man.

[00:11:10] Speaker 01:
Well, and they had to be, because they couldn't wait for him to keep aggressing and make the fatal move towards them.

[00:11:16] Speaker 01:
And likewise, they couldn't just retreat down the hall.

[00:11:18] Speaker 03:
You say aggressing, that's a pretty strong word.

[00:11:22] Speaker 03:
I saw him moving slowly.

[00:11:25] Speaker 01:
Well, he's moving slowly, but he also started with the knife at his waist and he brought it up into this position here, which tells an objectively reasonable officer, I'm not going to comply with you.

[00:11:34] Speaker 01:
And in fact, I'm going to do something that's more aggressive than continuing to hold the knife.

[00:11:39] Speaker 01:
I'm going to bring it up into an offensive position.

[00:11:41] Speaker 00:
Mr. Mill, and we can give you some additional time for our questions.

[00:11:47] Speaker 00:
I think you make something of the fact that the district court relied primarily or exclusively on an unpublished memorandum disposition of our court.

[00:11:58] Speaker 00:
Does that matter for us on de novo review?

[00:12:01] Speaker 00:
In other words, are we prohibited from considering the qualified immunity question and whether law is clearly established by reference to other cases?

[00:12:10] Speaker 01:
No, you're not.

[00:12:12] Speaker 01:
Obviously, this is a de novo review of that question.

[00:12:15] Speaker 01:
However, it underscores, this was done in a minute order by the district court judge.

[00:12:20] Speaker 01:
It wasn't even a full briefed order and he cited three disputed issues, a fact kind of offhand without a site to the record, mental health crisis, the conflicting commands.

[00:12:31] Speaker 01:
And that the knife wasn't pointed or aimed at anyone.

[00:12:34] Speaker 01:
And as I pointed out in our moving brief, there's no legal requisite that the knife be pointed at you in order for the deadly force to be reasonable in that situation.

[00:12:43] Speaker 01:
But it can certainly be a de novo review.

[00:12:46] Speaker 01:
But my point is to say that the law was clearly established to these officers that they should know in that six seconds that you cannot, that every other reasonable officer would know it is unconstitutional to use deadly force in this scenario to protect yourself.

[00:13:00] Speaker 01:
And the only case that he cites for that proposition is an unpublished decision that is factually distinct where the subject is holding an exacto knife, cringing and fearful and moving away from officers.

[00:13:11] Speaker 01:
rather than, in this situation, bringing the knife up and moving towards the officers.

[00:13:16] Speaker 01:
Those are two very different scenarios.

[00:13:18] Speaker 03:
Okay, and this is, listen, I'm not even asking you to answer the question, I'm just saying that we have a terribly tangled case law on the appealability of interlocutory orders here, and I have no idea whether we have interlocutory appellate jurisdiction.

[00:13:33] Speaker 01:
I would suggest that you do for just what I pointed out, which is Judge Zille pointed out the fact that Mr. Smith was in a mental health crisis.

[00:13:42] Speaker 01:
Well, we know from our case law most recently in Hart v. Redwood, the Ninth Circuit does not establish two tracks, one for mental health, one for other uses of force.

[00:13:51] Speaker 01:
So that is not a material fact.

[00:13:53] Speaker 01:
The other fact that the judge pointed out was that the knife wasn't pointed or aimed.

[00:13:58] Speaker 01:
Again, that is not a material fact.

[00:14:00] Speaker 01:
And the third piece that he pointed out were the commands.

[00:14:03] Speaker 01:
And again, to a reasonable officer in these officers' position with just split seconds to react to this situation, the notion that it is conflicting to say, show your hands, drop the knife, get on the ground, I would submit is not a material fact.

[00:14:18] Speaker 01:
What matters is what they're objectively perceiving, him not doing any of those things.

[00:14:23] Speaker 00:
Thank you.

[00:14:24] Speaker 00:
Thank you.

[00:14:24] Speaker 00:
Thank you, Mr. Miller.

[00:14:24] Speaker 00:
We'll give you a couple minutes on rebuttal.

[00:14:26] Speaker 01:
I appreciate it.

[00:14:26] Speaker 01:
Thank you.

[00:14:27] Speaker 02:
I'm sorry.

[00:14:27] Speaker 02:
I had one last question.

[00:14:28] Speaker 02:
I apologize.

[00:14:31] Speaker 02:
Is it your position that if he did not drop the knife but took no step towards them, in other words, he just stood there, but having been ordered to drop the knife, he did not drop the knife, that would warrant shooting him?

[00:14:52] Speaker 01:
Classic lawyer answer it would depend that's not the situation that they were confronted with but it was a wonderful thing That's what the that's what a probably expert witness would say it depends on the circumstances and it truly does because the officers would then need to reevaluate and See what they're dealing with now and it could it could very well be reasonably I mean look at Blandford

[00:15:15] Speaker 01:
That was a situation where the subject, he's not even going towards the officers.

[00:15:20] Speaker 01:
He's walking into a household that they don't even know if it has any people away from the officers.

[00:15:25] Speaker 01:
And they shot him.

[00:15:25] Speaker 01:
And the court ruled that it was reasonable because there could have been people in that house.

[00:15:29] Speaker 01:
And the officers needed to protect them.

[00:15:31] Speaker 01:
Same thing with Hart, 17 feet away.

[00:15:35] Speaker 01:
And one officer attempted a taser.

[00:15:38] Speaker 01:
Simultaneously, the other officer deployed deadly force.

[00:15:40] Speaker 01:
And the court ruled that was reasonable due to the distance and the lack of compliance with the commands.

[00:15:46] Speaker 00:
Thank you, Mr. Miller.

[00:15:47] Speaker 01:
Thank you.

[00:15:50] Speaker 00:
Mr. Sullivan.

[00:15:53] Speaker 04:
Good morning, Your Honor.

[00:15:54] Speaker 04:
Just may it please the Court.

[00:15:55] Speaker 04:
Brian Sullivan on behalf of the plaintiff appellee, Rose Johnson.

[00:16:00] Speaker 04:
Excuse me.

[00:16:00] Speaker 04:
I'm here with my co-counsel, Joe Moore.

[00:16:02] Speaker 04:
I'm Joe Rome.

[00:16:05] Speaker 04:
The Court should rule in Miss Johnson's favor for two reasons.

[00:16:07] Speaker 04:
And the first, Your Honor, addressed is the jurisdictional question.

[00:16:11] Speaker 04:
This is really about disputed facts.

[00:16:15] Speaker 04:
how he's holding the knife, whether he's pointing the knife at the officers, whether he's starting to comply with commands.

[00:16:26] Speaker 04:
The appellants take factual issue with each of the minute order, little descriptions, in some little way that he's aggressing on the officers.

[00:16:36] Speaker 04:
When he's moving, maybe a shuffle step or two, maybe a mile an hour, and maybe at the point where he's

[00:16:42] Speaker 04:
shuffling, is he even really aggressing on them?

[00:16:45] Speaker 04:
But they're taking these as factual disputes.

[00:16:48] Speaker 04:
And that's the jurisdictional issue.

[00:16:50] Speaker 04:
And so I think as a first question, these aren't purely legal issues.

[00:16:56] Speaker 04:
It's a question of fact about whether Ryan was an immediate threat in this moment as he's

[00:17:02] Speaker 04:
Within the threshold of his door.

[00:17:04] Speaker 04:
He slumps down and dies inside his apartment.

[00:17:07] Speaker 04:
He never comes close He never gets in the closest he gets is the beat in part of the threshold door He doesn't even make it to the actual threshold.

[00:17:17] Speaker 00:
What are we supposed to make of the?

[00:17:19] Speaker 00:
How do we analyze the fact that the victim is right on the other side of the door as well as

[00:17:26] Speaker 04:
Absolutely.

[00:17:28] Speaker 04:
It's it's conveyed to the officers that she's barricaded in the room.

[00:17:33] Speaker 04:
She is not injured.

[00:17:35] Speaker 04:
She's she is calling for help and while the officers don't know that that gets to this underlying there's negligence claims also that aren't part of the appeal.

[00:17:43] Speaker 04:
But she's not in an immediate threat and our expert I think does a good job describing this difference between there's a threat and officers are faced with threats every day.

[00:17:55] Speaker 04:
Most police cars say things like reminding them to not speed because

[00:18:00] Speaker 04:
There's no speed of getting somewhere that's worth ruining your safety.

[00:18:04] Speaker 04:
They're in constant threats all the time.

[00:18:06] Speaker 04:
The question is an immediate threat or imminent harm.

[00:18:10] Speaker 04:
And she's not an imminent harm because that door is shut and it's barricaded.

[00:18:14] Speaker 04:
And they're not an imminent harm because he's around the corner and they've got four glocks trained on him.

[00:18:18] Speaker 00:
And so where should we look in our published cases that would clearly establish the unconstitutionality of this?

[00:18:28] Speaker 04:
Yeah, the Harris case, the law enforcement officers may not kill suspects that don't pose an immediate threat.

[00:18:33] Speaker 00:
Well, but the Supreme Court has already warned us against reading that too broadly.

[00:18:37] Speaker 04:
Absolutely.

[00:18:38] Speaker 04:
I think the George case and then I think the Hart case that they cite also are both really great cases for the plaintiff appellee here.

[00:18:50] Speaker 04:
The question of the immediate threat, this is someone with a long gun.

[00:18:54] Speaker 04:
And it's unclear if it's an immediate threat until he raises it up at the officers.

[00:18:58] Speaker 04:
So that's the George case, right?

[00:19:00] Speaker 04:
That's a real threat.

[00:19:03] Speaker 00:
Well, why wouldn't I suspect the counter argument is that the person here is raising the knife up?

[00:19:12] Speaker 04:
Sure, and that's a question of fact though, right?

[00:19:14] Speaker 04:
Because we've got somebody telling him to put his hands above his head to drop his knife to get on the ground all at the same time.

[00:19:21] Speaker 04:
They say that he's doing it in an aggressive way.

[00:19:24] Speaker 04:
It could be in a self-harm way.

[00:19:25] Speaker 04:
It could be in an attempt to follow the convoluted orders.

[00:19:29] Speaker 04:
It gets to a little bit of a question of fact there about raising the knife.

[00:19:33] Speaker 04:
That's really very much like the George case.

[00:19:36] Speaker 04:
And they cite the Hart case also.

[00:19:38] Speaker 04:
But Hart traveled 30 feet in like less than six seconds with a knife pointed out at them, running at them essentially.

[00:19:46] Speaker 04:
Four and a half, he's going four plus miles an hour by my calculations.

[00:19:50] Speaker 04:
That's pretty, that's running.

[00:19:53] Speaker 04:
It's maybe not a full on sprint, but that's someone coming at you to knife you in an attacked

[00:19:58] Speaker 04:
stance, that's not somebody who starts to pull a knife up this way after they take a couple stagger steps, shuffles.

[00:20:06] Speaker 00:
What do we do with the Casella case?

[00:20:11] Speaker 00:
So that's the case where the Supreme Court, I believe, overturned our court.

[00:20:17] Speaker 00:
In a case where the person was at quite some distance, you had a purported

[00:20:25] Speaker 00:
victim turned out not to be on the other side of offense.

[00:20:28] Speaker 04:
Yeah.

[00:20:31] Speaker 04:
I think it comes back ultimately to the question of fact of what's going on here and the subtle questions of fact that the officers are in a situation where the person's around the corner, the person is known to be barricaded in a room.

[00:20:45] Speaker 04:
There is nothing suggesting in this particular case that he is about to harm these other people.

[00:20:54] Speaker 03:
You know, our case law, and you're getting into it, I mean, we have a lot of cases of police shootings.

[00:21:04] Speaker 03:
Some of them published, some of them men disposed.

[00:21:07] Speaker 03:
And I think this is probably an accurate description.

[00:21:11] Speaker 03:
They're all over the lot.

[00:21:15] Speaker 03:
So if they're all over the lot, how do we get to the qualified immunity decision here, which is to say there's got to be some clarity instructing the officer so that they're violating some clear command of the law?

[00:21:36] Speaker 04:
In this case, I think we have to look at the whole thing that happened with these officers as they are aggressing and pushing this incident.

[00:21:42] Speaker 04:
The closing counsel says that they had to move this fast.

[00:21:46] Speaker 04:
They had to do it this fast.

[00:21:47] Speaker 04:
But that's not what the record underlying shows.

[00:21:50] Speaker 04:
It shows that they slowed down on the way to the scene to try to link up to get there.

[00:21:55] Speaker 04:
But the first officer that got there waited.

[00:21:57] Speaker 00:
How would you describe the amount of time there?

[00:22:01] Speaker 04:
Overall it's probably more than a minute because and perhaps more because of the slowing down on the way there as well when we factor that in also This isn't a rush to get to the scene as fast as we can and then Myers Doesn't doesn't wait.

[00:22:16] Speaker 04:
He doesn't form a plan.

[00:22:17] Speaker 04:
He doesn't talk They've decided that they know the plan because of how they've communicated But that's clearly that they don't have a plan by the time the door opens.

[00:22:25] Speaker 00:
There's no plan how much additional time is so you have the the

[00:22:30] Speaker 00:
victim on the other side of the door, still on the phone with 911.

[00:22:36] Speaker 00:
Right.

[00:22:36] Speaker 00:
So how much time, once they've mustered and they've all arrived at the scene, how much time should they have taken to plan?

[00:22:41] Speaker 04:
Five seconds.

[00:22:43] Speaker 00:
And what would that plan look like?

[00:22:46] Speaker 04:
I've got less lethal, you've got lethal, you're back up, you're arrest.

[00:22:50] Speaker 04:
Boom.

[00:22:52] Speaker 04:
And that's what it takes.

[00:22:53] Speaker 04:
That's what real officers do when they're planning in the heat of the moment.

[00:22:56] Speaker 04:
They don't not talk.

[00:22:56] Speaker 04:
They don't not do anything.

[00:22:57] Speaker 04:
They do what our military guys do.

[00:22:59] Speaker 04:
They make a quick, fast, hasty plan and they get it done.

[00:23:02] Speaker 04:
And that's what they could have done here.

[00:23:04] Speaker 03:
How would that have changed the situation though?

[00:23:06] Speaker 03:
I mean, so they've got themselves assigned certain responsibilities, they break down the door, he's standing there, he makes a step or two forward at them, he's holding a knife.

[00:23:15] Speaker 03:
Well, so you've assigned one officer responsibility for shooting if necessary.

[00:23:20] Speaker 03:
How would that plan have changed the outcome here?

[00:23:22] Speaker 04:
Absolutely.

[00:23:23] Speaker 04:
So this is much like heart but now you have a master taser instructor whose lead on point with a taser who from six feet away with a man without a shirt on can on the first step can take that fire.

[00:23:35] Speaker 04:
And then there's less lethal alternatives that are being deployed.

[00:23:39] Speaker 04:
when no officers decide they're gonna go less lethal, no officers have their less lethal firearms out, they haven't planned it, they haven't thought about it, they didn't even get stuff that might have been in their trunk that could have helped the other officers have less lethal alternatives, and instead they just go for it, that's not reasonable.

[00:23:57] Speaker 04:
When you have all these tools in your tool belt to take a second and talk to your people about what you can do, in heart the taser misses, they shoot, it's okay.

[00:24:06] Speaker 04:
If that had really happened here, that would have been an okay response.

[00:24:11] Speaker 04:
Had the Taser gone off, Ryan Smith doesn't go down, and they fire, and that all happens in a second, that's fine.

[00:24:18] Speaker 04:
That's reasonable under the circumstances.

[00:24:20] Speaker 04:
But what's not reasonable is the conflicting commands, not somebody aggressing at the police, and then

[00:24:29] Speaker 04:
being shot without the consideration really of less lethal alternatives and officer Myers saying for a split second I thought about going to my taser but didn't have time that's flawed because it's unreasonable that I've planned for just a few seconds that five seconds and what's what's your case it clearly establishes a duty to plan hmm it's the reasonableness it's the reasonableness and it's that you it's the

[00:24:52] Speaker 00:
But I think the Supreme Court reversing us focuses one's mind on these questions.

[00:25:02] Speaker 00:
And so they've instructed us.

[00:25:05] Speaker 00:
I think Graham itself instructs us.

[00:25:07] Speaker 00:
We don't deal with it at that wholesale level.

[00:25:10] Speaker 04:
Right.

[00:25:12] Speaker 04:
It's the immediate threat to the officers.

[00:25:15] Speaker 04:
And officers acting reasonably in that moment, one of them would have had a taser drawn, and it wouldn't have been an immediate threat that they would have had to use deadly force.

[00:25:22] Speaker 00:
Do we have a case that isolates that requirement?

[00:25:27] Speaker 00:
It's clearly established that in these similar circumstances, non-lethal force must be used first.

[00:25:33] Speaker 04:
I don't think, no, I don't think necessarily non-lethal use force.

[00:25:39] Speaker 04:
I think it's, but if we don't look at it from literally the split second where he's gonna shoot, but we give that any backup time at all,

[00:25:48] Speaker 04:
I think that's the underlying issue.

[00:25:53] Speaker 04:
They have to consider things, though, like it is a mental health crisis.

[00:25:57] Speaker 04:
It is somebody who's... Well, it's a tough situation for the officers, no doubt, going into it.

[00:26:06] Speaker 04:
But a reasonable officer, I think, would have taken the moment to

[00:26:15] Speaker 04:
give either clear commands or you're going to either give clear commands because you've talked.

[00:26:19] Speaker 04:
It's not that you have to necessarily talk, but if you don't talk, you have to do things in a way that's reasonable.

[00:26:25] Speaker 04:
So it's not that you don't have to plan beforehand.

[00:26:28] Speaker 04:
There's no requirement that you plan.

[00:26:29] Speaker 04:
But if you don't plan, you still have to be reasonable about it.

[00:26:34] Speaker 02:
So I just want to make sure, because I haven't, forgive me yet, watched the video.

[00:26:43] Speaker 02:
He's given these various orders.

[00:26:45] Speaker 02:
He doesn't do any of the things he's ordered to do.

[00:26:48] Speaker 02:
He doesn't drop to the ground.

[00:26:50] Speaker 02:
He doesn't drop the knife.

[00:26:52] Speaker 02:
He doesn't put his hands in the air.

[00:26:54] Speaker 02:
But what he does do is take the hand that is holding the knife that has been down lower and raise it up.

[00:27:05] Speaker 02:
Why, if that's what happens, why isn't that a suggestion to a reasonable police officer that he's about to attack us?

[00:27:14] Speaker 04:
Absolutely.

[00:27:14] Speaker 04:
I think the way that you raised up your hand and the way that Mr. Miller raised his hand in his argument is the exact issue.

[00:27:21] Speaker 04:
That's a question of fact because that's not how it really happens in the video.

[00:27:25] Speaker 04:
It's slower, it's up more towards the side, it's not out and aggressive, and I think that's what the district court

[00:27:31] Speaker 04:
when they said he's not waving the knife, he's not pointing the knife.

[00:27:35] Speaker 04:
This is much more like a firearm that's down at the ready and maybe moves, but it's not a furtive movement, it's not a sudden movement, it's not done with any kind of threatening language that's going along with it.

[00:27:49] Speaker 04:
It's relatively innocuous at slow speed from around the corner.

[00:27:54] Speaker 04:
And it's the around the corner part also that I think is a factor here that, Your Honor, when you see the video, he's got to come out and around the corner while firearms are trained on him.

[00:28:06] Speaker 03:
So he's got to come out the door.

[00:28:08] Speaker 03:
He then has to turn into the hallway 90 degrees.

[00:28:12] Speaker 04:
Correct.

[00:28:13] Speaker 04:
And that's the immediate threat that we just don't have yet.

[00:28:17] Speaker 04:
Thank you.

[00:28:18] Speaker 04:
I'm happy to answer the court's other questions.

[00:28:20] Speaker 04:
Those are really the primary issues that I think we're here on.

[00:28:22] Speaker 04:
I'm happy to answer further questions.

[00:28:26] Speaker 00:
Thank you, Mr. Sullivan.

[00:28:27] Speaker 04:
Thank you very much, Your Honors.

[00:28:36] Speaker 00:
Mr. Miller.

[00:28:37] Speaker 01:
Thank you.

[00:28:37] Speaker 01:
I appreciate the extra time.

[00:28:40] Speaker 01:
The court had a lot of questions for Mr. Sullivan about where is the case law that clearly establishes that the officer's conduct here was objectively unreasonable.

[00:28:48] Speaker 01:
There is none, is the simple answer.

[00:28:50] Speaker 01:
And we pointed out in our reply brief, they cited, I mean, the Glenn case is Ruby Ridge, right?

[00:28:57] Speaker 01:
Shooting a kid who's running back towards his mom after his dad's been killed.

[00:29:02] Speaker 01:
I think that's the Harris case.

[00:29:03] Speaker 01:
Sorry, that was Harris.

[00:29:04] Speaker 01:
Glenn was the young man outside of his parents' house.

[00:29:10] Speaker 00:
Who's going back into the house.

[00:29:13] Speaker 01:
None of those cases established that these officers could not use deadly force to protect themselves from this threat.

[00:29:21] Speaker 01:
And the notion that it wasn't an immediate threat because he's behind some imaginary line of the threshold is just simply false.

[00:29:28] Speaker 01:
And if you look at the video, you'll see that.

[00:29:29] Speaker 01:
And you also have to bear in mind

[00:29:31] Speaker 01:
That just because he's behind the threshold doesn't mean he can't turn the corner and be on the officers who are just four and a half feet away and five and a half feet away from him before they can even raise their guns.

[00:29:47] Speaker 01:
The guns are already raised.

[00:29:48] Speaker 01:
Right.

[00:29:49] Speaker 01:
But it's that quick that you cannot say that every reasonable officer would know, oh, we're safe because he's behind the invisible line of his threshold.

[00:29:56] Speaker 01:
That's not, and there's no case that says that more important.

[00:29:59] Speaker 00:
Why, why wasn't there an opportunity to retreat?

[00:30:02] Speaker 01:
Because then you're leaving the victim who you are sworn to protect.

[00:30:06] Speaker 01:
First and foremost, her safety matters.

[00:30:09] Speaker 01:
If they get too far.

[00:30:10] Speaker 03:
But he's in that scenario, who's moving away from the victim.

[00:30:14] Speaker 01:
For them, he's still right outside the bathroom door at that point.

[00:30:17] Speaker 01:
So if they just run down the hallway, they're giving him more time to do her harm.

[00:30:24] Speaker 03:
Immediate harm to the victim, to the woman in the bathroom, I don't see that as immediate.

[00:30:30] Speaker 03:
Given that he's facing away from her, facing toward the officers, and your hypothetical is he continues to move away from her toward the officers, that does not sound like an immediate threat to her.

[00:30:41] Speaker 01:
Well, it's a consideration that's going through the officer's minds, bearing in mind Reed v. Hoy, which tells officers, you do not have to retreat.

[00:30:48] Speaker 01:
That is not part of your job.

[00:30:50] Speaker 01:
If a person is coming at you with a knife, there's no Monty Python, simply run away.

[00:30:56] Speaker 01:
You need to hold your ground and to deal with the threat.

[00:30:59] Speaker 01:
And that's what these officers did.

[00:31:00] Speaker 01:
And what we're hearing is complete 2020 hindsight.

[00:31:05] Speaker 01:
Coulda, woulda, shoulda.

[00:31:06] Speaker 01:
Some of those claims go to negligence, which is not before this court.

[00:31:09] Speaker 01:
What matters?

[00:31:11] Speaker 01:
And then, you know, Mendez VLA tells this court that we cannot have the provocation rule anymore.

[00:31:17] Speaker 01:
And that's what those arguments get to, is a kind of provocation type argument.

[00:31:21] Speaker 01:
You set the scene for this to happen.

[00:31:23] Speaker 01:
We're not looking at that here.

[00:31:24] Speaker 01:
We're looking at whether it's objectively reasonable to use force in this moment these officers used deadly force, and whether it was clearly established that you couldn't.

[00:31:32] Speaker 01:
And I would submit that it was not clearly established.

[00:31:36] Speaker 01:
So this court should reverse and grant qualified immunity to Officers Myers and B. Croft.

[00:31:42] Speaker 00:
Thank you, Mr. Miller.

[00:31:43] Speaker 01:
Thank you very much.

[00:31:46] Speaker 00:
The case is submitted.