[00:00:00] Speaker 00:
All good, Your Honor.

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

[00:00:06] Speaker 00:
Good morning, and may it please the court mariah, northington on behalf of the city of sparks and the sparks police officers I am aware that I have 15 minutes for argument, and I would like to reserve four minutes for rebuttal and I will watch my time There is one question presented in this case to this panel today And that is whether or not the officer's conduct in this case was reasonable or alternatively if it was obviously unreasonable in light of clearly established law

[00:00:31] Speaker 00:
It is our position that even accepting the findings of fact of the lower court and making all reasonable inferences in favor of Mr. Williams, the officer's conduct was reasonable.

[00:00:41] Speaker 00:
This case involves a 42 minute vehicle pursuit that only ended after Williams used his truck to collide with three occupied police vehicles, including driving over the hood of one of them.

[00:00:51] Speaker 00:
During this 42 minute pursuit, Williams reached speeds up to 70 miles an hour.

[00:00:56] Speaker 00:
He feigned compliance multiple times by stopping in the middle of the street and waiting for officers to catch up before taking off once again.

[00:01:03] Speaker 00:
At one point through a chain link fence, he ran three stop signs and five red lights, one of which at 65 miles an hour.

[00:01:10] Speaker 00:
He drove on Interstate 80 in the middle of the night with no headlights on and at one point in the wrong direction.

[00:01:17] Speaker 00:
After a successful spike strip punctured one of his tires, he continued to evade for seven minutes and reached speeds up to 50 miles an hour.

[00:01:24] Speaker 00:
During this pursuit, officers were aware that he had a criminal history of batter with a deadly weapon and eluding.

[00:01:30] Speaker 00:
Officers perceived within two minutes of the pursuit either a gunshot or backfire emitting from his truck, and they perceived that Williams had attempted to ram one of them.

[00:01:40] Speaker 00:
At the time of the shooting, the officers had attempted their third pit maneuver.

[00:01:45] Speaker 00:
Williams was able to successfully pull out of that third pit maneuver and then played bumper cars with three of our officers.

[00:01:51] Speaker 00:
The officers attempted to pin him in, and at this time they were on the slope of a gravel ditch off of Interstate 80.

[00:01:57] Speaker 00:
Officers exited their vehicles, shouting at Williams to stop the car, indicating that they did not think he had ceased his pursuit at that time.

[00:02:04] Speaker 00:
The scene was pure chaos.

[00:02:06] Speaker 00:
There was dust and dirt and debris flying everywhere.

[00:02:09] Speaker 00:
There was a loud noise emitting from Mr. Williams' engine, and there was dirt erupting from his rear tires.

[00:02:15] Speaker 00:
At the time of the shooting, Williams had escalated the situation from a dangerous car chase to multiple batteries with a deadly weapon, and it was imminently life-threatening to anyone in that vicinity.

[00:02:23] Speaker 00:
Additionally, the vehicle was showing outward signs of attempted acceleration.

[00:02:28] Speaker 00:
This court has found that the use of deadly force against a stopped or slow moving vehicle is reasonable when the driver is trying to evade arrest in an aggressive manner involving attempted acceleration.

[00:02:39] Speaker 00:
That was in Villanueva versus California in 2021.

[00:02:41] Speaker 03:
Even if the video does establish that he was pressing the accelerator and the wheels were turning,

[00:02:52] Speaker 03:
The vehicle wasn't going anywhere and it seemed or at least a reasonable jury could conclude that the vehicle wasn't going anywhere.

[00:03:02] Speaker 03:
How does that impact the analysis?

[00:03:04] Speaker 00:
Thank you for that question.

[00:03:05] Speaker 00:
So I think that what the lower court got hung up on was the appropriate standard to be applied.

[00:03:11] Speaker 00:
It is not what Williams was actually doing.

[00:03:13] Speaker 00:
It is what a reasonable officer on the scene would perceive was about to happen.

[00:03:17] Speaker 00:
And in this case, he had just run over the hood of one of their vehicles, and it was multiple sedans that were attempting to take on this large, lifted steel pickup truck.

[00:03:25] Speaker 00:
And just like the case in Wilkinson v Torres out of this court in 2010, the wheels were spinning, and he could have gained traction at any moment, resulting in a sudden acceleration of speed.

[00:03:34] Speaker 00:
And deadly force in Wilkinson was found to be reasonable.

[00:03:36] Speaker 04:
So, counsel, sort of asking, I think, a variant of Judge Collins's question.

[00:03:44] Speaker 04:
Let's say that we looked at this and thought that somebody could conclude that the vehicle is not in immediate danger of moving.

[00:04:02] Speaker 04:
But we could see the tire spinning.

[00:04:05] Speaker 04:
We could see on the video the tire spinning.

[00:04:07] Speaker 04:
Would there be any difference in your view as to how we should approach excessive force, vice, qualified immunity in that circumstance?

[00:04:18] Speaker 00:
No.

[00:04:19] Speaker 00:
I do believe that the case of Wilkinson v. Torres is controlling here.

[00:04:22] Speaker 00:
And in a situation where the vehicle, I believe in that case, they discussed how it was

[00:04:30] Speaker 00:
I apologize.

[00:04:31] Speaker 00:
Let's go to Plumhoffy Rickard.

[00:04:32] Speaker 00:
Plumhoffy Rickard, United States Supreme Court of 2014.

[00:04:35] Speaker 00:
In that case, the court recognized that while it is true that Rickard's car eventually collided with a police car and came temporarily to a near standstill, that did not end the chase.

[00:04:44] Speaker 00:
Rickard was obviously pushing down on the accelerator because the car's wheels were spinning.

[00:04:48] Speaker 00:
And at the moment that the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight, and that if he was allowed to do so, he would once again pose a deadly threat to others on the road.

[00:04:58] Speaker 00:
So in this case, I think that the evidence shows that the officers did not believe that he had ceased his conducts that he had done for 42 minutes prior to this collision.

[00:05:06] Speaker 02:
So on the third adjoining this, we've seen the video.

[00:05:11] Speaker 02:
And if you look at it closely you can see Taking it if you will frame by frame.

[00:05:19] Speaker 02:
You can see the back wheels are spinning.

[00:05:20] Speaker 02:
There's lots of noise I know you're saying to us that the question is what the reasonable officer under the circumstances Would perceive in terms of risk to harm But on the other hand if it's clear that the vehicle can't go anywhere and

[00:05:41] Speaker 02:
How do we evaluate this?

[00:05:42] Speaker 02:
A district judge obviously took the position that these facts are so close, so convoluted, that the jury needs to decide that.

[00:05:50] Speaker 02:
And as you well know, qualified immunity has that limitation.

[00:05:55] Speaker 02:
If the facts are truly in dispute, so that it's not obvious that the officers were acting reasonably, we need to send it back to the jury.

[00:06:06] Speaker 02:
What's your best argument?

[00:06:08] Speaker 02:
Taking as a given,

[00:06:10] Speaker 02:
that we saw what the video showed, the back wheels were moving, there was smoke, there was dust, lots of chaos, if you will.

[00:06:19] Speaker 02:
What's your best argument that there's no need to send this back for a trier effect, in this case a jury, to determine whether qualified immunity is appropriate?

[00:06:29] Speaker 00:
My argument to that would be that the facts are not disputed in this case.

[00:06:32] Speaker 00:
The only fact that was found to be disputed by the lower court was whether or not the tires were spinning.

[00:06:37] Speaker 00:
But all the facts leading up to that, including the fact that he had just run over the hood of one of their officers and that his engine was at least making outward signs of attempted acceleration, when the facts are not disputed, the reasonableness of an officer's conduct is a pure question of law.

[00:06:51] Speaker 02:
So I'm sure I understand you correctly.

[00:06:53] Speaker 02:
You're saying that the only facts that are disputed here is whether the

[00:06:58] Speaker 02:
back wheels returning.

[00:06:59] Speaker 02:
Is that correct?

[00:07:00] Speaker 00:
Yes, the district court did make that finding that she assumed that they were not.

[00:07:05] Speaker 00:
We do take issue with that.

[00:07:06] Speaker 00:
We would offer an alternative theory for this court to consider.

[00:07:09] Speaker 00:
Under Scott V. Harris, we do believe that the district court's findings were blatantly contradicted by the record, given that there was five shooting off.

[00:07:16] Speaker 04:
Let me push back on what you're saying the district court found.

[00:07:20] Speaker 04:
I'm looking at page 12 of the district court's order, ER 15.

[00:07:26] Speaker 04:
Contrary

[00:07:28] Speaker 04:
To defend its version, the body cam and dash cam recordings do not clearly show that Williams was either turning or attempting to accelerate spinning his tires or even moving the truck at all.

[00:07:42] Speaker 04:
Isn't that more than just the tire, just the district court just found the tires weren't spinning?

[00:07:48] Speaker 00:
My understanding of that is the district court found that there was no definitive evidence that that loud noise was the engine revving.

[00:07:54] Speaker 00:
and that the tires weren't spinning, but we do take issue for that and I would like to explain why.

[00:07:59] Speaker 00:
We cited to five shooting officers video camera footage.

[00:08:03] Speaker 00:
Gibson, Colborne, Tarasas, Taylor and Janning.

[00:08:07] Speaker 00:
Officer Janning's dash camera footage is the footage that actually shows the tire spinning and if you look at that same page you were just referencing.

[00:08:13] Speaker 03:
And you didn't cite the relevant portion of the Janning video, which is the only one I could find that actually does show the back tire spinning.

[00:08:24] Speaker 03:
And therefore, they say you forfeited that because you made the district court have to sort of rummage through the record unguided.

[00:08:31] Speaker 03:
What's your response to that?

[00:08:33] Speaker 00:
Thank you, Your Honor.

[00:08:34] Speaker 00:
I agree with you that Janning's video footage is the only one that shows the tire spinning, which is why we take issue with the fact that his video footage is not cited at all in the district court's order.

[00:08:42] Speaker 00:
Zero citations.

[00:08:43] Speaker 00:
We cited to it three times in our underlying briefing.

[00:08:46] Speaker 00:
So in the defendant's motion for summary judgment, which is supplemental excerpt of record, page three, we cited to it on page six at line 11, where we say that plaintiff continued to spin the tires on his truck, which caused dust to kick up off the ground while the engine revved.

[00:09:01] Speaker 00:
That's where we cited to Janning's dash camera footage in our motion for summary judgment.

[00:09:05] Speaker 03:
So your position is that that assertion underlying the forfeiture argument is just factually wrong?

[00:09:11] Speaker 03:
Correct, yeah.

[00:09:12] Speaker 02:
Can I follow up on what my colleague mentioned a minute ago from the district court's order?

[00:09:18] Speaker 02:
Putting aside the turning of the back wheels, what about the turning of the vehicle?

[00:09:24] Speaker 02:
The tires were turned so they were trying to move it toward the officers.

[00:09:31] Speaker 02:
What's your comment about that?

[00:09:32] Speaker 00:
I don't think it's clear from the video where his front tires were facing at any point because of all the dust that was erupting from his tires.

[00:09:40] Speaker 00:
He his vehicle was still functioning so at any point he could have turned in either direction I don't know at what point where his tires were spinning as soon as he was Attempted to be pinned in and the officers exited their vehicles they began firing within three seconds so during that three seconds I cannot see from the video footage where his tires were put a reasonable jury conclude that Even if he gained traction and the truck began to move that at that point

[00:10:08] Speaker 03:
there was no officer in front of him and so he wouldn't have actually posed an immediate danger and would have just gone gone forward and that therefore shooting was not appropriate.

[00:10:19] Speaker 00:
So I think that the immediate danger that he posed is not just to all those officers that were in that ditch with him.

[00:10:24] Speaker 00:
Under the qualified immunity analysis, we also have to look at the danger he posed to others in the community as a whole.

[00:10:29] Speaker 00:
So not just those within the vicinity.

[00:10:32] Speaker 00:
And the court in Plumhoff v. Rickard explicitly discussed that if Rickard was able to get out of that pinning in Rickard,

[00:10:38] Speaker 00:
If he was able to gain traction and get out of there, he was going to be a danger to others, and deadly force was reasonable.

[00:10:42] Speaker 03:
So you're invoking the, you know, the portion of, I guess it's the Garner case that says that if someone is sufficiently dangerous, violent risk, that you can shoot at them even as they're fleeing?

[00:10:58] Speaker 00:
Yes.

[00:10:59] Speaker 00:
Okay.

[00:11:00] Speaker 00:
Yes.

[00:11:01] Speaker 00:
I do believe that under qualified immunity the cases of Scott B. Harris, Plumhoffy Rickard and Wilkinson B. Torres dictate that we are entitled to qualified immunity and holding us the police to any other high level of generality would run afoul of the qualified immunity analysis.

[00:11:14] Speaker 02:
So from the city's perspective, because the smoke, the dust, the spinning of the wheels, that's all you need.

[00:11:24] Speaker 02:
A reasonable officer could have feared for his or her safety, they're entitled to shoot.

[00:11:29] Speaker 02:
Is that right?

[00:11:30] Speaker 00:
With the 42-minute history leading up to that, yes.

[00:11:34] Speaker 00:
Yes.

[00:11:35] Speaker 00:
Any other questions?

[00:11:35] Speaker 00:
You want to save some of your time?

[00:11:36] Speaker 00:
Yes, please, if I can save the remainder for rebuttal.

[00:11:38] Speaker 00:
Thank you, Your Honors.

[00:11:39] Speaker 02:
Very well.

[00:11:40] Speaker 02:
Okay.

[00:11:41] Speaker 02:
Let's hear from Mr. Levine.

[00:12:01] Speaker 01:
Thank you, Your Honors, and good morning.

[00:12:03] Speaker 01:
May it please the Court.

[00:12:04] Speaker 01:
My name is Benjamin Levine.

[00:12:05] Speaker 01:
I represent the plaintiff and appellee, Joseph Williams, in this case.

[00:12:10] Speaker 01:
Your Honors have the briefing, so I'll just start by addressing a few of the points that were surfaced in the previous discussion with opposing counsel.

[00:12:20] Speaker 01:
I'll start with the assertion that the facts are not disputed in this case.

[00:12:26] Speaker 01:
We strongly contest that, and I think that the district court's opinion made clear that there are.

[00:12:31] Speaker 02:
Disputed facts and I thought what are the disputed facts that are relevant to the analysis that we must undertake to determine whether qualified immunity applies here a number of them were discussed just a few minutes ago your honor they specifically what yeah, they will they include that the

[00:12:50] Speaker 01:
The defendants in their briefing have alleged that Mr. Williams was threatening in particular officers and in particular officer Gibson who they contend in the briefing was in the path or the potential path of the vehicle.

[00:13:05] Speaker 03:
and that the vehicle was in the process of turning towards him, which I think, as your honors pointed out a moment ago, and I think as counsel conceded, there's not- Well, counsel took the position that it doesn't matter whether the officer was in the path of the vehicle, that his behavior was sufficiently dangerous to the public at large, that he falls within Garner's

[00:13:26] Speaker 03:
teaching that there are cases where people are a threat to public safety that you can shoot them even as they're fleeing.

[00:13:36] Speaker 01:
The council did argue that.

[00:13:39] Speaker 01:
First of all, I would just mention that it seems like there is an apparent concession that there was not an immediate threat of death or serious bodily harm to officers who were present by virtue of no officer being in the path.

[00:13:50] Speaker 04:
I think they were making that argument in the alternative.

[00:13:53] Speaker 01:
Well, I'll address the point then, Your Honor.

[00:13:56] Speaker 01:
I think that there are two issues with that so-called fleeing felon rule and the application of it here.

[00:14:03] Speaker 01:
The first of which being that by the clear language of the Garner decision and other cases that have applied that, the use of deadly force in such circumstances is only permissible where necessary to prevent escape.

[00:14:19] Speaker 01:
And I think based on the facts here, viewing the facts in the plaintiff's favor as the non-moving party and drawing

[00:14:26] Speaker 01:
permissible inferences in his favor, there was no reasonably apparent necessity to shoot in order to prevent his escape because he was already wedged in and the vehicle was immobile, not moving, and was further blocked in place.

[00:14:40] Speaker 02:
I think you mentioned that the Janning video was not looked at.

[00:14:45] Speaker 02:
We've looked at it.

[00:14:46] Speaker 02:
And the back wheels are moving.

[00:14:48] Speaker 02:
There's a lot of dust, a lot of things.

[00:14:50] Speaker 02:
And as you know, the Supreme Court's been very clear that

[00:14:55] Speaker 02:
people who put their lives on the line to protect the public have to make split-second decisions.

[00:15:01] Speaker 02:
There was just a lot of chaos there.

[00:15:02] Speaker 02:
They had led up to this big chase and all that sort of thing.

[00:15:07] Speaker 02:
Lots of things were suspicious.

[00:15:09] Speaker 02:
They were worried about it.

[00:15:10] Speaker 02:
They thought there might have been gunshots.

[00:15:13] Speaker 02:
We're really dealing with what would a reasonable officer under the circumstances think?

[00:15:21] Speaker 02:
And the district court took the position that, hey, this is so confusing.

[00:15:25] Speaker 02:
We don't know why the back wheels were spinning.

[00:15:27] Speaker 02:
I'm not sure what the district court looked at in that, but it seemed to me they clearly were spinning.

[00:15:32] Speaker 02:
So if that's right, doesn't a reasonable officer say, wait a minute, you know, in a split second, I'm in danger.

[00:15:40] Speaker 02:
We're in danger.

[00:15:41] Speaker 02:
We got to shoot.

[00:15:43] Speaker 01:
know your honor because and you know I just to very briefly address the issue of the the spinning wheels.

[00:15:49] Speaker 01:
You know I just to clarify I think our point was that.

[00:15:52] Speaker 01:
There appear to have been two portions of Jannings video that the defendants and the appellants have identified.

[00:15:59] Speaker 01:
One at which they contend shows the wheel begin to spin as demonstrative of it spinning throughout the shots.

[00:16:06] Speaker 01:
And another later portion after the shooting had ended, which they contend shows the wheel stopping spinning.

[00:16:15] Speaker 01:
And in particular, just the point that we were making in our brief was that that.

[00:16:20] Speaker 03:
In that portion of the video when the revving stops that the back tire on the video on the Janning video does is not spinning and does not stop.

[00:16:31] Speaker 03:
Are you disputing that?

[00:16:33] Speaker 01:
Well, that latter portion of the video, your honor, was was the portion that we were referring to that was never presented to the district court.

[00:16:39] Speaker 03:
Well, we looked at it.

[00:16:40] Speaker 03:
And so are we supposed to unthink it in reviewing this record?

[00:16:44] Speaker 01:
Well, I guess our position would be that the reliance on that evidence has been waived and then forfeited.

[00:16:50] Speaker 03:
If we don't buy that argument, are you telling me that I should disbelieve my lying eyes when I see that wheel spin and stop and see the lettering show up, Cooper, as it stops?

[00:17:03] Speaker 01:
I'm not sure.

[00:17:12] Speaker 01:
I'm not sure.

[00:17:19] Speaker 03:
that the wheels were spinning, which means he's pressing the accelerator, and that tells us what the revving of the engine was.

[00:17:26] Speaker 03:
And so why isn't it when they've just got him lodged in, he's already gone over one vehicle, they at least need, at the beginning, they can't be certain that that vehicle's not going to dislodge and just go forward.

[00:17:39] Speaker 03:
And after a certain period of time, they realize it's not going anywhere.

[00:17:45] Speaker 03:
And they don't shoot continuously, even though he's trying to accelerate.

[00:17:48] Speaker 03:
But at the beginning, why isn't it reasonable when there's that immediate risk that this vehicle could dislodge to fire?

[00:17:57] Speaker 01:
Well, there's two things there, Your Honor.

[00:17:58] Speaker 01:
I think the first is that, again, on summary judgment, where there is ambiguity about what the officers might or might not have perceived in terms of the vehicle's ability to move forward, they... But the ambiguity, to some degree, builds into the standard, because the Supreme Court allows officers

[00:18:17] Speaker 03:
who have to make split-second decisions on the scene, some range of judgment to deal with the uncertainties of what would happen.

[00:18:25] Speaker 03:
Officers don't have to bet their lives on the outcome of these kinds of guesses.

[00:18:31] Speaker 03:
And so why isn't any uncertainty here within the range allowing a reasonable officer to fire?

[00:18:40] Speaker 01:
Because the Supreme Court, Your Honor, and this court as well, has repeatedly indicated that these are the kinds of disputes that are properly to be decided by a finder of fact.

[00:18:51] Speaker 04:
Counsel, do you concede that before the final resting place of the vehicle, that there's indisputable evidence that your client engaged in grossly reckless behavior?

[00:19:09] Speaker 01:
I mean, you know, it's certainly clear that there was a lengthy pursuit before this and that there were traffic infractions that occurred during that.

[00:19:17] Speaker 01:
I don't know that I would concede that the particular language that your honor used, I believe it was extremely reckless.

[00:19:24] Speaker 03:
But, you know, and I think that's also something that... You dispute that he ran a red light at 65 miles an hour?

[00:19:31] Speaker 01:
I'm not aware of the exact speed that it was but I don't dispute that there were some red lights that were run, but I Do you agree that your clients conduct placed?

[00:19:43] Speaker 04:
Lives in Jeopardy and again not not at the final stop of the vehicle, but during the course of the chase That your clients actions placed the lives of others at risk

[00:19:59] Speaker 01:
I think, Your Honor, in a hypothetical sense, potentially.

[00:20:05] Speaker 01:
However, I think the video also shows that there was virtually nobody on the road.

[00:20:09] Speaker 01:
Obviously, this is not how we expect people to drive and to operate their vehicles.

[00:20:14] Speaker 02:
There's no concession there.

[00:20:16] Speaker 02:
When somebody does that, you don't know who's going to be there.

[00:20:19] Speaker 02:
We had a situation in Los Angeles, as you know, where a woman was going along and killed two kids.

[00:20:26] Speaker 02:
She was driving, I think even in the middle of the day, and was driving at high speed following her boyfriend up the road and killed him.

[00:20:33] Speaker 02:
She's just been found guilty of murder, I think.

[00:20:37] Speaker 02:
Why don't we have a situation here where your client's running through these red lights and so on?

[00:20:43] Speaker 02:
Sure, nobody was there, but that's just the luck of the draw.

[00:20:46] Speaker 02:
Don't we take that into account, though, when we look at how the officers viewed the situation at the time?

[00:20:52] Speaker 01:
It's certainly a consideration, your honor.

[00:20:54] Speaker 01:
However, this was not during broad daylight.

[00:20:56] Speaker 01:
This was late at night, I believe, after midnight.

[00:20:58] Speaker 01:
And unlike the example that your honor mentioned, there was essentially nobody on the road.

[00:21:03] Speaker 03:
Was there a truck on the road when he drove the wrong way on I-80?

[00:21:09] Speaker 01:
I'm sorry.

[00:21:09] Speaker 03:
Was there a truck going down the road when he drove the wrong way on I-80 or no?

[00:21:15] Speaker 01:
When Mr. Williams turned on I-80, it was essentially, I believe, a U-turn.

[00:21:21] Speaker 01:
The truck was driving the, if I recall correctly, the way that he turned to go, such that after he made the U-turn, the truck was behind him.

[00:21:31] Speaker 01:
And it was really pretty far off in the distance, as I think the video makes clear, such that there was not any apparent risk of him making contact with the truck.

[00:21:40] Speaker 01:
But I'd also like to emphasize, Your Honors,

[00:21:44] Speaker 01:
you know, the proceeding chase and any potential danger inherent in it, which again, I think our position is that it was under these particular circumstances, fairly minimal, given the relative lack of anybody on the road at the time.

[00:21:57] Speaker 02:
You're just saying that because he was lucky, he didn't kill anybody and didn't harm anybody else, that he gets the benefit of the doubt?

[00:22:05] Speaker 02:
Is that what you're saying?

[00:22:08] Speaker 01:
It I suppose it depends what what exactly we mean by benefit of the doubt your honor, but you're just saying he did all these things but anybody so it's okay.

[00:22:17] Speaker 02:
I think that it's the you know that the court is entitled to consider the totality of the circumstances of course and that these are all aspect analysis all these things that the court has brought up is part of our analysis what the officers were thinking when they ultimately your had your client in this

[00:22:36] Speaker 02:
I'm not sure if that's the case.

[00:22:40] Speaker 01:
I'm not sure if that's the case.

[00:22:43] Speaker 01:
I'm not sure if that's the case.

[00:22:48] Speaker 01:
I'm not sure if that's the case.

[00:22:51] Speaker 01:
I'm not sure if that's the case.

[00:22:54] Speaker 01:
I'm not sure if that's the case.

[00:22:56] Speaker 01:
I'm not sure if that's the case.

[00:23:00] Speaker 01:
I'm not sure if that's the case.

[00:23:03] Speaker 01:
I'm not sure if that's the case.

[00:23:05] Speaker 01:
that the pursuit had already terminated by that point such that there was not a continued flight that needed to be terminated.

[00:23:11] Speaker 01:
At that point, the most important factors to consider are whether there was an immediate threat of death or serious bodily injury to anybody who was present.

[00:23:22] Speaker 03:
I guess the question is could a reasonable jury conclude that at the very beginning when he gets wedged and

[00:23:32] Speaker 03:
you know he's hit from the side and the and the side wheels come up and he's revving can a reasonable jury conclude that it was obvious to the officers that the vehicle would not look forward.

[00:23:48] Speaker 01:
I think a reasonable jury could conclude that I think to be to be truthful your honor reasonable jury could conclude a whole range of

[00:23:56] Speaker 01:
could draw a whole range of conclusions from what happened here.

[00:23:58] Speaker 01:
And that's exactly why we believe summary judgment is inappropriate and that this should be resolved by a jury rather than before any discovery has been taken on summary judgment, as is the case here.

[00:24:10] Speaker 01:
And I would also just like to emphasize that we've been speaking a little bit about the possibility, and I think counsel argued this, and your honors raised this a few times, that

[00:24:25] Speaker 01:
that he could crash into somebody or commit some sort of violent

[00:24:55] Speaker 01:
that that's what we're trying to do.

[00:24:59] Speaker 01:
I think that's what we're trying to do.

[00:25:02] Speaker 01:
That's prior cases that have found that deadly force was justified based on the need to to to again terminate a pursuit that that the officers would would

[00:25:14] Speaker 01:
I think substantially and in a material way more dangerous and partly to the point that Judge Smith raised than what we've seen here.

[00:25:23] Speaker 02:
And again, I'm not saying... With respect, counsel, we've talked at some length about what preceded this.

[00:25:31] Speaker 02:
You know, all kinds of very dangerous conduct.

[00:25:34] Speaker 02:
When you look at that video, lots of noise, lots of smoke, lots of shouting.

[00:25:40] Speaker 02:
And given what just proceeded and the fact that

[00:25:43] Speaker 02:
In the reality, this is a very short period of time.

[00:25:47] Speaker 02:
I'm struggling with how the Supreme Court's instructions to us can be followed where we just basically allow your client to say, okay, these officers need to take themselves out of the moment, look at this scientifically and determine whether there was any possibility that the vehicle could have moved.

[00:26:09] Speaker 02:
I don't think that's the standard.

[00:26:10] Speaker 02:
I think the standard is whether the reasonable officer

[00:26:13] Speaker 02:
under the circumstances, could have reasonably feared that his or her life was at risk or that the public's life was in danger.

[00:26:23] Speaker 02:
And he certainly showed before he didn't seem to care very much about the public at large.

[00:26:29] Speaker 02:
What am I missing?

[00:26:30] Speaker 01:
Well, Your Honor, our position is certainly not that there needs to be any metaphysical certainty as to that 100% of jurors would conclude that a reasonable officer

[00:26:41] Speaker 01:
would absolutely or would absolutely not have perceived the circumstances were as we argue they were.

[00:26:47] Speaker 01:
More that where these issues are genuinely in dispute, where the reasonable minds could disagree, reasonable jurors could disagree, that that's an issue that belongs to the jury and where summary judgment is not appropriate.

[00:27:02] Speaker 02:
That is true with their genuinely disputed fact.

[00:27:04] Speaker 02:
But if the facts are such, having a look at the video, that

[00:27:10] Speaker 02:
A reasonable officer could have concluded that he or she was at risk.

[00:27:14] Speaker 02:
Supreme Court says you don't have to go to the jury.

[00:27:16] Speaker 02:
You don't have to have a trial.

[00:27:17] Speaker 02:
They're entitled to qualified immunity, right?

[00:27:20] Speaker 01:
Well, Your Honor, I think I'm over time.

[00:27:22] Speaker 02:
As long as I'm talking to you, keep doing it.

[00:27:24] Speaker 01:
Sure, okay.

[00:27:26] Speaker 01:
So it sounds like Your Honor is addressing sort of two points, both the reasonableness itself and then the state of the law.

[00:27:34] Speaker 01:
And again, I think the issue of, on the first issue, I think we really

[00:27:40] Speaker 01:
the the the problem with with that is that there are objective factors a host of them all of which were or I think identified by the district court and part of the basis for its decision.

[00:27:50] Speaker 01:
That's a reasonable officer.

[00:27:53] Speaker 01:
The excuse me a reasonable jury could conclude that a reasonable officer perceive that there was no more immediate threat based on nobody being in the path of the vehicle.

[00:28:04] Speaker 01:
The only officer who the the defendants and appellants contend

[00:28:09] Speaker 01:
was arguably in the potential path of the vehicle, was not, and it's clear as demonstrated by his body camera that he had moved around.

[00:28:16] Speaker 02:
I'll ask my colleagues whether or not there's additional questions.

[00:28:18] Speaker 02:
I think not.

[00:28:19] Speaker 02:
Thank you for your argument, Council.

[00:28:21] Speaker 01:
Thank you, Your Honor.

[00:28:21] Speaker 02:
All right, Ms.

[00:28:23] Speaker 02:
I apologize.

[00:28:24] Speaker 02:
I mispronounced it before.

[00:28:25] Speaker 02:
It's Northington.

[00:28:26] Speaker 02:
Do you have some rebuttal time?

[00:28:27] Speaker 00:
Thank you very much.

[00:28:30] Speaker 00:
Am I ready to proceed?

[00:28:32] Speaker 02:
Please.

[00:28:32] Speaker 00:
Thank you very much.

[00:28:33] Speaker 00:
There's a couple of points I would like to address, and then I am also open for questions.

[00:28:38] Speaker 00:
The purpose of qualified immunity is to protect officers in these tense and rapidly evolving situations, and that has been recognized over and over and over again.

[00:28:46] Speaker 00:
In a case where there are no genuinely disputed facts, or even if the genuinely disputed facts don't materially affect the outcome, the purpose of qualified immunity is effectively lost if a government is required to go to trial and expend those resources.

[00:28:59] Speaker 00:
Scott B. Harris specifically says that the video speaks for itself, and in this case the video speaks for itself.

[00:29:04] Speaker 00:
Even if we were to take all reasonable inferences in favor of Mr. Williams, any reasonable officer on that scene would have believed that they were in danger or the public was in danger.

[00:29:13] Speaker 00:
And this is evidenced by the simple fact that five separate officers from five separate vantage points all opened fire within a second of each other.

[00:29:20] Speaker 00:
We're talking about three seconds here.

[00:29:22] Speaker 00:
We had a 42-minute dangerous car chase where he was driving on Interstate 80, a major freeway in northern Nevada, with no headlights on.

[00:29:29] Speaker 00:
That fact alone is atrocious.

[00:29:32] Speaker 00:
They had perceived what they believed to be a gunshot coming from the vehicle within two minutes of the pursuit.

[00:29:36] Speaker 00:
That fact alone causes concern for these officers on this scene.

[00:29:40] Speaker 00:
There are so many facts within this fact pattern that establish that he was a danger to the community and to those officers, and we believe qualified immunity should apply.

[00:29:47] Speaker 02:
These facts- Is it correct, Council, we were discussing this with your friend on the other side, the city and the officers are not required to step back and scientifically evaluate

[00:30:01] Speaker 02:
what the possibilities were as a matter of physics in a situation like this, right?

[00:30:07] Speaker 02:
Aren't they, is what the reasonable officer under those circumstances with the predicate events would see under the circumstances.

[00:30:16] Speaker 00:
Yeah, that would be a dereliction of our duty to protect the public if we were to step back and wait.

[00:30:20] Speaker 00:
Additionally, he had already stopped four times and played this game of cat and mouse with the officers during this 42 minutes.

[00:30:26] Speaker 00:
So I'm not sure why they would be expected to assume that there'd be a different outcome this time he was stopped.

[00:30:31] Speaker 00:
I do believe that the cases of Scott v. Harris, Plumhoff v. Rickard, and Wilkinson v. Torres mandate that qualified immunity be applied to protect the officers in this case.

[00:30:40] Speaker 00:
Those facts are all extremely analogous.

[00:30:42] Speaker 00:
Unless the court has any questions, I will submit at that time.

[00:30:45] Speaker 03:
I wanted to know what your response is.

[00:30:48] Speaker 03:
You said you cited the Janning video, but he said you didn't cite the portion of the Janning video that was in your opening brief footnote on the issue of the spinning of the wheel.

[00:30:58] Speaker 00:
Understood.

[00:30:59] Speaker 00:
So in our underlying briefing, let me double check here.

[00:31:01] Speaker 00:
So in our reply brief specifically, we cited the, I apologize, I'm really bad at math.

[00:31:09] Speaker 00:
I think it's the 15 seconds.

[00:31:12] Speaker 00:
So 5606 to 5721.

[00:31:13] Speaker 00:
So I'm sorry, a minute.

[00:31:15] Speaker 03:
Is this in the S-E-R?

[00:31:18] Speaker 00:
Yes.

[00:31:18] Speaker 00:
I'm sorry.

[00:31:18] Speaker 00:
This is in the F-E-R, the further excerpts of record, our reply brief and the underlying motion for summary judgment.

[00:31:24] Speaker 00:
So we cited a minute and 10 seconds of Jannings dash camera footage, which would depict the wheels starting to spin and then the wheels stopping spinning.

[00:31:33] Speaker 03:
Is this in your supplemental?

[00:31:37] Speaker 00:
The further excerpts of record.

[00:31:38] Speaker 00:
The further excerpts?

[00:31:38] Speaker 00:
Further excerpts, yes.

[00:31:39] Speaker 03:
The defendant's reply in support.

[00:31:41] Speaker 00:
What page is that?

[00:31:42] Speaker 00:
Page three, line 21.

[00:31:44] Speaker 04:
Are you citing there to your reply?

[00:31:46] Speaker 04:
I think Judge Collins is asking what page of the further

[00:31:50] Speaker 04:
Excerpts of record or is it are you citing to that?

[00:31:53] Speaker 00:
I apologize your honors the citation I have is within the reply itself so the further excerpts of record 83 is the reply and Then within the reply at page 3 and on page 9 we cited it twice and with the reply starting on 83 So bottom line you did mention it yes, it's it's the crux of the case to be honest Jannings dash camera footage

[00:32:15] Speaker 00:
I would argue are alternatively even without it a reasonable officer would have believed with all that dust that his tires were spinning.

[00:32:21] Speaker 02:
Other questions?

[00:32:23] Speaker 02:
I think not.

[00:32:23] Speaker 02:
Thanks to all counsel for your argument in the case.

[00:32:26] Speaker 02:
The case of Williams versus City of Sparks is submitted.