[00:00:02] Speaker 03: Mr. Haddad, is that correct? [00:00:03] Speaker 02: Yes. [00:00:04] Speaker 02: Please proceed. [00:00:05] Speaker 02: Good morning. [00:00:05] Speaker 02: Michael Haddad for the plaintiff. [00:00:07] Speaker 02: I'd like to reserve five minutes for rebuttal, please. [00:00:10] Speaker 03: We'll try to help you keep your eye on the clock. [00:00:11] Speaker 02: Thank you. [00:00:13] Speaker 02: The key to this case is in the evolving qualified immunity standards, and that's kind of a precursor to this court's whole analysis, so I'd like to spend a little bit of time on that. [00:00:24] Speaker 02: The Supreme Court explained again not too long ago in Pearson versus Callahan that the driving force [00:00:32] Speaker 02: behind the creation of qualified immunity was a desire to ensure that insubstantial cases against government officials be resolved before discovery. [00:00:42] Speaker 02: The court also explained that qualified immunity was intended to balance competing interests. [00:00:50] Speaker 02: One, quote, to hold public officials accountable when they exercise power irresponsibly. [00:00:55] Speaker 02: And two, to shield officials from the burdens of litigation and liability [00:01:01] Speaker 02: in insubstantial cases when they act reasonably. [00:01:05] Speaker 02: That balancing of interests is why the standard for determining clearly established law cannot be set so high that plaintiffs can rarely, if ever, meet it even in substantial cases. [00:01:19] Speaker 02: That result would be imbalance, and only the second of those two important interests behind qualified immunity would be furthered. [00:01:28] Speaker 03: I get that. [00:01:29] Speaker 03: I wrote a case called Gerhart versus Lopez, which went back and forth among the members of the Supreme Court 12 times before they denied cert. [00:01:40] Speaker 03: So I get your point. [00:01:41] Speaker 03: I really do. [00:01:42] Speaker 03: The guy gets out of the car, he shoots him right away, a little kid with a gun, a toy gun. [00:01:47] Speaker 03: But we don't have that here. [00:01:48] Speaker 03: We don't have that here. [00:01:49] Speaker 03: We got a situation where you have a man who keeps advancing, despite the officers saying, no, no, no, get in the car, get in the car, stop, stop, stop. [00:01:59] Speaker 03: You don't have a situation like you had in Nahad, where he just gets out and shoots them, basically, even though he says stop. [00:02:07] Speaker 03: This is different. [00:02:08] Speaker 03: And as you know, as an experienced counsel, when the Supreme Court looks at these things, they think, what does the officer in the field look at? [00:02:17] Speaker 03: And in this situation, if you look at the video and so on, the officer kept backing up, backing up, backing up, trying to avoid the problem, but your guy kept coming at him and his hand behind him. [00:02:30] Speaker 03: micromanage it and say, well, how did he know if we had a gun and so on? [00:02:34] Speaker 03: But that's the very kind of case where we're kind of stuck. [00:02:38] Speaker 03: I'm not happy with qualified immunity particularly, but looking at the Supreme Court's case law in this kind of situation, I think our hands are kind of tied, aren't they? [00:02:48] Speaker 02: No, not at all, Your Honor. [00:02:50] Speaker 02: First of all, [00:02:52] Speaker 02: This officer, Sergeant Ackman, actually had more time to consider. [00:02:55] Speaker 02: He had alternatives, unlike the officer in the end. [00:02:58] Speaker 01: What were his alternatives, other than fleeing? [00:03:02] Speaker 02: Well, he had pepper spray. [00:03:04] Speaker 02: He had a taser. [00:03:05] Speaker 02: He kept them on his left side so he said he could use them, even if he had his gun drawn and held in his right hand. [00:03:11] Speaker 02: He could have given further instructions. [00:03:13] Speaker 01: We noticed that the- Do you think, is there a case that says use of violent force against the decedent? [00:03:23] Speaker 01: Less than a gun is required? [00:03:26] Speaker 01: I mean, I understand. [00:03:27] Speaker 01: In the full... [00:03:30] Speaker 01: In the full measure of time, we can say he could have used his pepper spray. [00:03:35] Speaker 01: He could have hit him with a baton. [00:03:37] Speaker 01: He could have done various other things. [00:03:39] Speaker 01: But I'm trying to find, you know, the Supreme Court speaks, I'll say this with great respect, out of both sides of its mouth. [00:03:46] Speaker 01: It says these are the principles that govern these things. [00:03:49] Speaker 01: And every time we find a lack of qualified immunity, [00:03:53] Speaker 01: They reverse us and they say you haven't found a case with sufficient specificity. [00:03:58] Speaker 01: So what I'm asking you is, do you have a case that says under circumstances like this? [00:04:03] Speaker 01: pepper spray should have been used instead, or a baton. [00:04:06] Speaker 01: Yes. [00:04:06] Speaker 01: What case? [00:04:07] Speaker 02: To answer your question, Smith versus City of Hemet. [00:04:09] Speaker 02: It's an Anbach Ninth Circuit case. [00:04:11] Speaker 02: Alternatives must be considered. [00:04:13] Speaker 02: And it's a question for the jury. [00:04:15] Speaker 01: Well, alternatives must be considered. [00:04:17] Speaker 01: But isn't that consideration something that has to be reasonable in the amount of time that someone has? [00:04:23] Speaker 01: This entire incident, which is on tape, lasted 38 seconds. [00:04:28] Speaker 02: Right. [00:04:30] Speaker 01: So you're saying during that 38 seconds after [00:04:33] Speaker 01: telling Mr. Garcia to go back into the car, and then he stops for a moment, then he continues and he says to him three times, stop, stop, stop, as the officer retreats around various portions of the car. [00:04:49] Speaker 01: We should hold that it was unreasonable for him not in that time period to consider whether to use less violent means of response. [00:04:58] Speaker 02: You should hold that a jury can find that he should have considered alternatives in that last 10 seconds as Mr. Garcia was walking toward him. [00:05:07] Speaker 01: I was trying to get to that point. [00:05:08] Speaker 01: So this is where, and I must admit, [00:05:12] Speaker 01: I'm attracted towards Judge Fletcher's dissent in Wade, but it's not- That was denied. [00:05:18] Speaker 03: Yeah, but it's- Unbuck was not successful. [00:05:21] Speaker 01: But Wade is a recent decision of this court where somebody's walking down a hallway towards someone. [00:05:28] Speaker 01: I think the officer has 10 seconds there to decide what else to do, and he shoots the person, and the majority opinion, which is the opinion of this court now, says, [00:05:40] Speaker 01: qualified immunity. [00:05:42] Speaker 01: How do you get around Wade? [00:05:43] Speaker 02: Look, a key difference in this case, Your Honor, that we have to keep in mind is that this is a mistake of fact case. [00:05:50] Speaker 02: This is a case where the officer based his use of force on a mistake of fact. [00:05:54] Speaker 01: But so is Wade. [00:05:55] Speaker 01: The person in Wade is unarmed. [00:05:58] Speaker 01: In fact, it's clear that he's unarmed in Wade because he's shirtless. [00:06:02] Speaker 01: You're the decedent in this case. [00:06:06] Speaker 01: Turns out to be unarmed, but an officer could reasonably believe that him reaching behind his back for something might be reaching for a weapon. [00:06:13] Speaker 02: Wade involved a domestic violence situation, which this court has repeatedly said states a key difference from other use of force situations. [00:06:22] Speaker 02: That alone can raise the threat for an officer. [00:06:25] Speaker 02: And it was in a narrow hallway. [00:06:27] Speaker 02: There was no room to move out of the way. [00:06:29] Speaker 02: And the man and Wade got much closer to them, much more quickly than Mr. Garcia. [00:06:33] Speaker 00: Well, I guess on that last point, this developed over a far longer period of time, relatively speaking. [00:06:42] Speaker 00: We've got 40 seconds, we've got continued advancing, we've got the hand behind the back. [00:06:50] Speaker 00: Whatever the question for the jury, isn't the question for us [00:06:54] Speaker 00: whether Ackerman could have known beyond debate, clearly established. [00:07:02] Speaker 00: And I guess I'm not clear yet on which case you have where you've got the decedent advancing, the decedent's hands, one hand at least, not being shown, so the real possibility of a weapon. [00:07:16] Speaker 00: The mistake of fact, unfortunately, the reason these are all so tragic is because most of them involve mistakes of fact and hindsight. [00:07:24] Speaker 00: But what's the case that clearly establishes that Officer Ackerman should have known? [00:07:31] Speaker 02: The Supreme Court has never said we have to have one single case. [00:07:34] Speaker 02: There's multiple cases that fill in this picture that a reasonable officer from those cases would have had fair notice. [00:07:41] Speaker 02: For example, AKH versus City of Tustin, where the officer is pursuing a domestic violence suspect who has his hands in his hoodie and he's not pulling them out. [00:07:51] Speaker 02: It's just like here, his hand is concealed and the officer is worried that he might have a gun. [00:07:56] Speaker 02: He tells him, show me your hand. [00:07:58] Speaker 02: And instead of pulling it out and showing his hand, he whips it out like this really quickly. [00:08:02] Speaker 02: The officer is afraid that he has something in his concealed hand and he shoots him. [00:08:07] Speaker 02: And the Supreme Court explained, excuse me, this court explained, [00:08:11] Speaker 02: that he had no objective facts to believe that man was armed, just like the Supreme Court found in Tennessee v. Garner, where they also thought that that child climbing a fence behind could have been armed. [00:08:23] Speaker 00: Okay. [00:08:23] Speaker 00: Well, we don't want to slice this too thin, and I take your admonition that we don't have to find a case completely on all fours. [00:08:32] Speaker 00: But with respect to AKH, and isn't a central distinguishing factor here relative to the other cases, the warning? [00:08:39] Speaker 00: I mean, multiple warnings. [00:08:41] Speaker 00: AKH was a second. [00:08:42] Speaker 00: There was no warning. [00:08:43] Speaker 00: Even Wade, it's not clear in terms of how much of a warning there is. [00:08:47] Speaker 00: But there were three warnings, and he clearly kept advancing after each of those warnings. [00:08:52] Speaker 00: They weren't warnings. [00:08:53] Speaker 00: They weren't warnings. [00:08:54] Speaker 00: Saying stop is not a warning. [00:08:55] Speaker 00: What part of pointing a firearm at someone and saying stop shouldn't be taken as a warning? [00:09:00] Speaker 02: stop is not a warning this court has explained a warning is saying stop or else shoot the person has to be warned of the deadly consequences the knee head case explained why that kind of warning is necessary [00:09:12] Speaker 02: And furthermore, what I was trying to say about this being a mistake of fact case, it's clearly a mistake of fact case, unlike others, because this officer says, I merely assumed he had a gun. [00:09:24] Speaker 02: Even though he saw initially both empty hands, he never saw a gun, he had no information that this man had a gun. [00:09:32] Speaker 02: And then even after shooting him three times, he then saw both hands again, still empty, and he fired three more shots. [00:09:39] Speaker 02: And that's his mistake of fact, to think that he had a gun. [00:09:42] Speaker 02: And given that, this court has a clear rubric for how to decide qualified immunity that I think makes it easier here. [00:09:50] Speaker 00: Can you help me just on that last point then? [00:09:52] Speaker 00: I mean, to what extent, how does the officer's subjective understanding, as you say, there is testimony here in terms of the officer's subjective understanding of that. [00:10:02] Speaker 00: How should that factor into our analysis of whether it was unreasonable or clearly established? [00:10:06] Speaker 02: It's undisputed that he was mistaken, that Garcia had a gun, because Garcia was unarmed, OK? [00:10:12] Speaker 02: That's undisputed. [00:10:13] Speaker 02: He made a mistake. [00:10:17] Speaker 02: Under Torres and Nehad and Wilkins, all in our briefs, it's a jury question about whether that mistake was reasonable. [00:10:25] Speaker 02: But qualified immunity is a question of law. [00:10:27] Speaker 02: And so this court then has to assume that the officer understood the correct facts, that being that Mr. Garcia was not armed. [00:10:36] Speaker 01: Is that really so? [00:10:38] Speaker 01: Yes. [00:10:38] Speaker 01: I've searched at length for a case that says, if the officer is mistaken about the facts, that automatically creates a jury question. [00:10:49] Speaker 01: Do you have a case that says that? [00:10:50] Speaker 02: Yes. [00:10:51] Speaker 02: It's called Torres versus City of Madeira, 648 F3rd, 1119. [00:10:56] Speaker 02: And this is a quote from it. [00:10:58] Speaker 02: Where an officer's particular use of force is based on a mistake of fact, we ask whether a reasonable officer would have or should have accurately perceived that fact. [00:11:07] Speaker 01: That's right. [00:11:09] Speaker 01: That's the point. [00:11:10] Speaker 01: You're correctly quoting Torres. [00:11:12] Speaker 01: What you're arguing to us is that if the officer was mistaken as to the facts, that automatically creates a jury question. [00:11:21] Speaker 01: The question is instead whether a reasonable officer could have been mistaken about the facts under the circumstances. [00:11:29] Speaker 01: That's the law, right? [00:11:30] Speaker 02: And Torres goes to that and answers that as well because it says the next step for courts to decide the question of law of qualified immunity is [00:11:38] Speaker 02: We must assume the officer, quote, correctly perceived all of the relevant facts and ask whether an officer could have reasonably believed at the time that the force was actually— Exactly. [00:11:50] Speaker 01: And this officer in this case perceived all the relevant facts. [00:11:54] Speaker 01: No, but— No, stop. [00:11:56] Speaker 01: Let me finish, then you can tell me why I'm wrong, as opposed to telling me why I'm wrong during my statement. [00:12:01] Speaker 01: This officer, there's no claim here that the officer didn't see something that he saw or lied about something that he saw. [00:12:10] Speaker 01: He recounts the facts and there's no rebuttal of that in the record. [00:12:15] Speaker 01: It turns out that although he assumed that the decedent in reaching behind his back was reaching for a weapon, he was mistaken about that. [00:12:26] Speaker 01: Now, isn't it a question of law for us about whether that was a reasonable misapprehension? [00:12:32] Speaker 02: You have to, no. [00:12:33] Speaker 02: Under Torres, you are required to assume that he correctly perceived that there was no gun. [00:12:39] Speaker 02: That's what Torres says, that's what Nehad says. [00:12:41] Speaker 01: No, that's not what Torres says. [00:12:42] Speaker 01: Torres says we are required, if the officer makes a reasonable mistake of fact, he has qualified immunity, does he not? [00:12:52] Speaker 01: No, he doesn't. [00:12:54] Speaker 01: So your position is that any time an unarmed person is shot, even if the officer had every reason to believe that he was armed, it's a jury question on qualified immunity. [00:13:06] Speaker 02: No. [00:13:07] Speaker 02: The jury gets to decide, ultimately, the question of fact about whether the mistake was reasonable or not. [00:13:12] Speaker 02: The question of law is decided by the court. [00:13:14] Speaker 01: And in order to decide that, you have to. [00:13:19] Speaker 01: I think you're answering my question [00:13:22] Speaker 01: By indirection. [00:13:24] Speaker 01: My question is this. [00:13:26] Speaker 01: When it turns out, the officer shoots someone and says, I shot him because I thought he was armed. [00:13:30] Speaker 01: It turns out he was wrong. [00:13:33] Speaker 01: He made a mistake of fact. [00:13:35] Speaker 01: No doubt about that. [00:13:36] Speaker 01: Now the question is whether that mistake of fact was reasonable. [00:13:40] Speaker 01: And you're saying that's a jury question, correct? [00:13:43] Speaker 01: Yes? [00:13:43] Speaker 01: Yes. [00:13:44] Speaker 01: OK. [00:13:44] Speaker 01: And therefore, every case in which an unarmed person is shot must go to the jury, correct? [00:13:50] Speaker 02: No. [00:13:51] Speaker 02: This court has to assume the facts in the light most favorable to the plaintiff, right? [00:13:57] Speaker 02: For qualified immunity, that's the rule and summary judgment. [00:14:00] Speaker 02: So given that jury question, you have to assume the jury could find the mistake was unreasonable. [00:14:06] Speaker 02: You have to assume it was an unreasonable mistake. [00:14:08] Speaker 01: And if we have to assume that, I'm not sure why you're fighting this. [00:14:11] Speaker 01: It's a great position for you to take. [00:14:13] Speaker 01: Since you say we have to assume that, that means that every case in which an unarmed person is shot [00:14:19] Speaker 01: must go to the jury on the question of whether or not the officer's mistake of fact was reasonable. [00:14:26] Speaker 01: That is your position, is it not? [00:14:27] Speaker 02: I just can't speak to every case, Your Honor. [00:14:29] Speaker 02: Oh, you are. [00:14:29] Speaker 02: You are. [00:14:31] Speaker 00: You're saying. [00:14:32] Speaker 00: I wonder, just a quick clarifying point on this mistake of fact, does that go to the unreasonableness inquiry or the clearly established? [00:14:41] Speaker 00: And if it goes to clearly established, how? [00:14:43] Speaker 02: It goes to clearly establish because the Torres case goes on to explain, and so does Nehad, that in addition to the question of fact about the mistake being reasonable, the court then, for qualified immunity, must assume that the officer correctly perceived the actual facts here that Garcia was unarmed. [00:15:03] Speaker 02: And assuming that, that he correctly understood there was no gun, could any reasonable officer have thought that deadly force would be lawful? [00:15:11] Speaker 02: That is the way this court analyzed it in Torres, in Nehad, in the Wilkins case. [00:15:17] Speaker 02: There's a long line of this court deciding cases in that way. [00:15:20] Speaker 02: It is a doctrine here, and it applies in this situation, and I think it simplifies qualified immunity. [00:15:25] Speaker 03: Okay, your time is up. [00:15:26] Speaker 03: Let me ask my colleagues, do you have additional questions? [00:15:29] Speaker 03: All right, very well, thank you. [00:15:30] Speaker 03: Let's hear from the county, Mr. Bletchman. [00:15:46] Speaker 04: Good morning, your honors. [00:15:47] Speaker 04: May it please the court. [00:15:48] Speaker 04: My name is Noah Blackman. [00:15:49] Speaker 04: I'm here with my colleague, John Swafford, on behalf of the appellees, the county, and importantly, Sergeant Ackman in this case. [00:15:58] Speaker 04: The undisputed facts, when the court looks at the video evidence like the district court did, [00:16:03] Speaker 04: and the court could also look at the forensic animation, which includes a lot of additional vantage points of the shooting, it's clear that a reasonable officer in Sergeant Ackman's position could have seen Mr. Garcia's [00:16:18] Speaker 04: behavior, advancing directly at him at close range, despite three orders to stop, with a concealed right hand behind his back, an area where weapons are often kept, as the type of harrowing gesture that justifies... Are you arguing that the officer didn't act unconstitutionally, or are you arguing that there's no clearly established law? [00:16:44] Speaker 04: That's a great question, Your Honor. [00:16:45] Speaker 04: I am asking— Give me a great answer. [00:16:47] Speaker 04: Here is the great answer, Your Honor. [00:16:49] Speaker 04: I believe this panel can look at this evidence and find, number one, under the first prong, that Sergeant Ackman acted constitutional per the Fourth Amendment in terms of his use of reasonable force. [00:17:01] Speaker 01: Okay, so let me ask you. [00:17:03] Speaker 01: Let me tell you that I'm not sure I can reach that conclusion. [00:17:06] Speaker 01: I think this is a case in which whether or not he acted constitutionally strikes me as a close question and probably a question of fact. [00:17:17] Speaker 01: If that's the case, tell me why there is no clearly established law on this. [00:17:22] Speaker 04: Yes, your honor. [00:17:23] Speaker 04: So under the second prong, which is what the district court found, no case that the plaintiffs have cited or we have found nor any consensus of cases outlaws Sergeant Ackman's use of deadly force for self preservation in a situation like this, where a gentleman has his hand concealed [00:17:43] Speaker 04: He's advancing at the officer in numerous sides of the patrol vehicle. [00:17:48] Speaker 04: The officer's retreating. [00:17:49] Speaker 04: He's trying to buy time. [00:17:51] Speaker 04: And this gentleman essentially travels approximately 20 feet forward after the first command to stop, gets to about seven and a half feet before the officer has to use deadly force. [00:18:03] Speaker 04: Let me ask you this. [00:18:04] Speaker 03: I thought that when Garcia turned around, Ackman could have seen that he did not have a firearm. [00:18:14] Speaker 03: Am I mistaken? [00:18:16] Speaker 04: Yes. [00:18:16] Speaker 04: He could not see at that distance, at that moment, whether or not there was anything. [00:18:20] Speaker 04: And I think the court can look at the video. [00:18:22] Speaker 04: There's no clear shot. [00:18:23] Speaker 03: They were pretty close. [00:18:25] Speaker 03: They were pretty close. [00:18:26] Speaker 04: They were close, Your Honor. [00:18:27] Speaker 03: And so if he could see that there was no weapon, does that change anything in our analysis? [00:18:35] Speaker 04: Hypothetically, potentially, but that's not in the court's record here. [00:18:39] Speaker 01: Well, why couldn't a jury reasonably conclude that the officer should have known that he was unarmed? [00:18:46] Speaker 01: He knew when he got out of the car there was nothing in his hands, so he knew that he had no arms in his hands. [00:18:52] Speaker 01: I've watched the video, too. [00:18:54] Speaker 01: It's a little hard to know what happened as he first leaves the car. [00:18:58] Speaker 01: He doesn't seem very threatening as he's coming up to the officer. [00:19:01] Speaker 01: He seems more drunk to me than threatening. [00:19:04] Speaker 01: And if looking at this video, we think the officer could have seen that there was no weapon behind in his back. [00:19:14] Speaker 01: Wouldn't that create a jury question about whether or not there's qualified immunity here? [00:19:21] Speaker 04: I think under the first prong, if the court found that there's evidence in the record about that, which there is not, then the court could look at the first prong differently. [00:19:31] Speaker 00: Well, wait a second. [00:19:32] Speaker 00: In terms of evidence in the record, you just pointed us to the video. [00:19:37] Speaker 00: I think we've all seen it. [00:19:39] Speaker 00: And we can see his empty hands. [00:19:41] Speaker 00: He turns around. [00:19:42] Speaker 00: And I think, again, without getting into Sergeant Ackman's subjective intent, Sergeant Ackman [00:19:50] Speaker 00: also seemed to believe it because he reholstered his gun and believed that he was, that Mr. Garcia was surrendering. [00:19:56] Speaker 00: That's evidence in the record. [00:19:59] Speaker 04: That's correct, Your Honor. [00:20:00] Speaker 04: And it was after that point when Mr. Garcia starts to hide his right hand, which he does for the next 30 seconds. [00:20:09] Speaker 00: So the hands, is the theory that he's got something holstered in a backholster? [00:20:16] Speaker 00: Or I guess that's one part of the record where the response to that isn't particularly well developed, why we should assume in retrospect that he was armed. [00:20:28] Speaker 04: Well, I think when the court looks at the record, it's undisputed that Sergeant Ackman was not able to see clearly the back waistband of this gentleman. [00:20:38] Speaker 04: And we see that as well on the video evidence. [00:20:40] Speaker 04: So I think. [00:20:41] Speaker 03: Well, I'm not sure I saw the same video you did then. [00:20:46] Speaker 03: When he turned, I thought you could see pretty clearly he didn't have anything there. [00:20:50] Speaker 03: And as my colleague had just pointed out, [00:20:53] Speaker 03: Officer Ackman must have felt something of the same because he re-holstered his gun. [00:20:58] Speaker 03: He originally was concerned. [00:21:00] Speaker 03: He holsters his gun. [00:21:04] Speaker 03: Then your guy keeps moving forward, but presumably the officer knew at that point that he didn't have a gun. [00:21:11] Speaker 03: He was being aggressive. [00:21:13] Speaker 03: He kept coming forward, and that's kind of scary. [00:21:17] Speaker 03: And what do we do with the fact that, at least arguably, he knew that he had no gun, and because of that, he holstered his own weapon? [00:21:28] Speaker 04: At the point the court is talking about, it did appear like he was going to turn around, which is what the officer commanded. [00:21:34] Speaker 04: and he kind of canted, he didn't turn around, and then that's when he went forward again. [00:21:39] Speaker 01: Help me with that, because I don't have the video playing in front of me while we're talking, but I've looked at it a number of times. [00:21:46] Speaker 03: We're all pleased about that. [00:21:50] Speaker 01: Mr. Garcia gets out of the car, and the officer says, stay in the car, get back in the car. [00:21:57] Speaker 01: and then he retreats slightly. [00:22:01] Speaker 01: He's come a little bit forward, and he retreats towards the car again, and that's when the officer holsters his weapon and comes towards Mr. Garcia, apparently at that point believing that he's submitting himself to be cuffed. [00:22:18] Speaker 01: What I'm trying to figure out is in that little [00:22:21] Speaker 01: five second snippet of the video, can he see Mr. Garcia's back? [00:22:29] Speaker 01: I know Mr. Garcia turns a little bit to go back to the car. [00:22:35] Speaker 01: If he can see the back or if the record makes it [00:22:38] Speaker 01: likely that he could see the back, then he may well have known he was unarmed. [00:22:43] Speaker 01: If he couldn't, it may make a difference. [00:22:45] Speaker 01: Tell me, we'll look at it again, but tell me what you think happened there. [00:22:49] Speaker 04: Right, what the court will see in the video, I believe, and the sergeant did not see clearly the back of the gentleman, when he started to look like he was going to turn to potentially comply and be cuffed potentially, that's when he then turned back, so his back was away from the officer and that's when he [00:23:07] Speaker 04: I think dropped his left arm and he kept his right arm behind there. [00:23:11] Speaker 01: Let me ask you one other question on this so that we can—let's assume for a moment that the officer had reason to know that Mr. Garcia was unarmed. [00:23:23] Speaker 01: I know that's not your position. [00:23:24] Speaker 01: I'm just asking you to assume that. [00:23:27] Speaker 01: Would he have qualified immediately under those circumstances if he shot him? [00:23:31] Speaker 04: The answer is yes, your honor, because even if he had definitive proof that this gentleman had no weapon behind his back at the fact that Mr Garcia was ignoring those commands to stop was advancing and gaining ground, he could have actually [00:23:47] Speaker 04: attack the officer, he could have taken the officer's weapon. [00:23:50] Speaker 01: Well, what do you do with Nihad under those circumstances? [00:23:53] Speaker 01: There the decedent has a pen in his hand, he doesn't have a weapon, but the officer knows that he's at least got something that he can attack him with and the court says no qualified immunity there. [00:24:09] Speaker 04: Nihad is an entirely different case, I think. [00:24:12] Speaker 01: They're all entirely different cases, which is why the Supreme Court's case law on this is so frustrating. [00:24:17] Speaker 01: But tell me why it's so different that it's not relevant here. [00:24:20] Speaker 04: Yes, Your Honor. [00:24:21] Speaker 04: Well, Sergeant Ackman had 38 seconds to try to interpret Mr. Garcia's actions, decide what to do. [00:24:27] Speaker 04: In Nihad, the officer essentially gets out of his vehicle and within five seconds, really without any warning of any use of force, uses deadly force in that scenario. [00:24:38] Speaker 00: Okay, so those are two distinctions that I guess I'd like to explore a little bit. [00:24:43] Speaker 00: Without any warning, but I think in Nihad the suggestion is that the warning must include a threat to use deadly force, right? [00:24:51] Speaker 00: Stop or I'll shoot. [00:24:53] Speaker 00: And here we just have stop, stop, stop is the fact that his [00:24:57] Speaker 00: that he's pointing a gun at him enough. [00:25:01] Speaker 04: I believe so, Your Honor, and that's what the district court found. [00:25:04] Speaker 00: Okay, why? [00:25:05] Speaker 04: We also know recently we were provided some additional clarity on that on the Smith versus Agdeppa case ruled upon in August. [00:25:15] Speaker 04: There, the only warning provided was stop one time, even though that was not even audible. [00:25:21] Speaker 00: Okay, and you've taken me exactly to the segue. [00:25:23] Speaker 00: The second distinguishing point I'd like to explore with you is that, of course, there they were engaged with the decedent. [00:25:30] Speaker 00: and had used multiple efforts to use non-lethal force. [00:25:37] Speaker 00: That doesn't happen here. [00:25:39] Speaker 00: So why isn't that distinguishable? [00:25:42] Speaker 04: Well, in the Smith case, Your Honor, a warning was, the gentleman was naked, so they could tell he didn't have any weapons on him. [00:25:52] Speaker 04: I understand there was an active altercation [00:25:54] Speaker 04: But the uses of force before deadly force were less lethal. [00:25:59] Speaker 04: So even transitioning then to deadly force, the court said that stop was essentially sufficient. [00:26:06] Speaker 04: But in addition to that, the court provided a lot of additional information, essentially that, and this is just recently, that the issue about [00:26:15] Speaker 04: what kind of warning is needed, when a warning is needed, when it's practical, all those things is not established in the case law. [00:26:23] Speaker 04: So I think that's some additional clarity from the Ninth Circuit, specifically on the warning issue. [00:26:28] Speaker 00: Wasn't part of, I guess, coming back to Judge Hurwitz's, because I cut off your answer to this question, wasn't that established in Nehad, the type of warning? [00:26:38] Speaker 04: In Neha, the officer was in this well-lit alley. [00:26:42] Speaker 04: He was in his vehicle for a period of time. [00:26:44] Speaker 00: I know. [00:26:44] Speaker 00: I ask you a question, and then you speak to the other pieces. [00:26:47] Speaker 00: And that is one of the frustrating things about qualified immunity cases. [00:26:50] Speaker 00: But I guess I'm asking just with respect to the warning piece. [00:26:55] Speaker 04: With regard to the warning. [00:26:56] Speaker 04: It was practical. [00:26:57] Speaker 04: He had time to do so. [00:26:59] Speaker 04: The individual who had the metallic blue pen was walking slowly down this well-lit alley, was 17 feet away, so he was some greater distance than the distance Mr. Garcia was towards Sergeant Ackman. [00:27:16] Speaker 04: I believe our case has gotten significantly better since the court issued the order because of the Smith case, because of the Sabe case. [00:27:25] Speaker 04: And then even since this case has been briefed, the court is well aware, we had the Wade case and we also had the, recently the Hernandez case. [00:27:34] Speaker 04: A couple of issues to just raise there. [00:27:37] Speaker 04: Recently, two weeks ago, the estate of Hernandez case, when this gentleman comes out of a vehicle with a suspected knife, the court there found that even when the officer for the second volley shot this gentleman when he was on the ground, that that was still reasonable under the fourth amendment. [00:27:58] Speaker 04: And then obviously granted qualified immunity for the third volley. [00:28:02] Speaker 04: If the court looks at the video here, [00:28:04] Speaker 04: All the six shots in 2.3 seconds by Sergeant Ackman were when Mr. Garcia was still advancing towards him, still on his feet, not yet on the ground. [00:28:15] Speaker 03: What is the county's position with respect to the timing of his taking the gun out again? [00:28:24] Speaker 03: He had holstered the gun, but he took it out again. [00:28:28] Speaker 03: What prompted him to take the gun out again? [00:28:31] Speaker 03: What's your argument? [00:28:32] Speaker 04: Well, he felt that this gentleman was not complying with the command to turn around. [00:28:37] Speaker 04: He started to take several steps forward. [00:28:40] Speaker 04: He was the lone officer, unlike in several other cases. [00:28:42] Speaker 03: That's when he was backing up, backing up, backing up, right? [00:28:45] Speaker 03: So he felt threatened. [00:28:46] Speaker 04: Yes, he had put his gun away to cuff the gentleman, but then when the gentleman started hiding his hand coming forward, he grabbed his firearm again and tried to retreat and those type of things. [00:28:56] Speaker 00: He grabbed his firearm, not any of the non-lethal weapons that he had available to him. [00:29:05] Speaker 00: Why shouldn't that count? [00:29:07] Speaker 04: Well, first of all, he only has two hands. [00:29:10] Speaker 04: In one of his hands, he's got his flashlight. [00:29:12] Speaker 04: So in the other hand, he pulled out his firearm because of the danger factor. [00:29:16] Speaker 04: He was the lone officer. [00:29:18] Speaker 04: He was trying to buy time, so perhaps other officers can arrive. [00:29:23] Speaker 04: They were en route, essentially. [00:29:25] Speaker 04: And that's why he was retreating. [00:29:27] Speaker 04: He was trying to buy time, get distance. [00:29:30] Speaker 04: It would have been a poor tactical decision to try to pull out any other weapon. [00:29:36] Speaker 04: and he had a less lethal weapon, and officers are trained. [00:29:39] Speaker 04: They're not supposed to have their firearm out at the same time as their taser. [00:29:43] Speaker 04: That leads to weapons confusion. [00:29:46] Speaker 01: Is that in the record? [00:29:47] Speaker 04: Yes, Your Honor. [00:29:47] Speaker 04: I believe that's in the record. [00:29:49] Speaker 04: And one of the cases that Mr Haddad brought up, the Torres case, that was a weapons confusion case. [00:29:54] Speaker 04: The officer shot this arrestee who's in the backseat of a patrol car thinking she had her taser out, but she had her firearm out. [00:30:01] Speaker 04: So there is in the record and in case law reasons why officers don't have a less lethal force option out at the same time as a lethal force option. [00:30:13] Speaker 04: Real quickly, because obviously answering the questions I've run out of some of my time here. [00:30:18] Speaker 01: It's our time. [00:30:20] Speaker 04: Our time. [00:30:23] Speaker 04: The court looks at those recent cases, those strengthen our qualified immunity arguments. [00:30:29] Speaker 04: As to the 14th Amendment issue, there's no evidence that Sergeant Ackman did anything in terms of the use of deadly force other than for self-preservation. [00:30:39] Speaker 04: And even the Hernandez case, where there was three volleys, several of which were when the subject was on the ground, the 14th Amendment violation was dismissed in that one. [00:30:53] Speaker 04: I know I'm running out of time here. [00:30:55] Speaker 04: You're out of time. [00:30:56] Speaker 04: Okay. [00:30:57] Speaker 03: Let me just ask my colleague whether either has additional questions. [00:31:00] Speaker 03: I'm sure you have lots more that you could say, but we're grateful for what you have. [00:31:04] Speaker 03: Thank you, Your Honors. [00:31:04] Speaker 03: Appreciate it. [00:31:05] Speaker 03: Now, you used up all of your time opposing counsel. [00:31:09] Speaker 03: Let me ask my colleague, do we need additional time? [00:31:13] Speaker 01: I used up a lot of his time. [00:31:14] Speaker 01: Okay. [00:31:15] Speaker 03: We'll give you a couple of minutes to respond, okay? [00:31:24] Speaker 02: Like the qualified immunity standard, the motion to dismiss standard is also not supposed to mean that the plaintiff always loses. [00:31:32] Speaker 02: This court, sitting as a court of esteemed jurists, can make a decision, regardless of what the Supreme Court seems to often say. [00:31:40] Speaker 01: This was a summary judgment, though, was it not? [00:31:42] Speaker 02: This was a summary judgment. [00:31:42] Speaker 02: But we've also raised the motion to dismiss decision that throughout the Monell... This is on the Monell claim. [00:31:48] Speaker 02: Yes. [00:31:49] Speaker 02: And so even if this court found qualified immunity, [00:31:54] Speaker 02: there could still be a Monell claim if there were an underlying Fourth Amendment violation to go to the jury. [00:32:00] Speaker 01: Since you've turned to the Monell claim, I did have a question. [00:32:02] Speaker 01: Yes. [00:32:04] Speaker 01: Do you dispute the judge's initial dismissal of the Monell claim without prejudice? [00:32:10] Speaker 01: No, you didn't amend in the time period that he gave you, assuming that he was correct at that point, saying after that it's too late. [00:32:21] Speaker 01: Can we really reverse his dismissal without prejudice at the beginning? [00:32:24] Speaker 02: Yes, you can. [00:32:26] Speaker 02: He dismissed it. [00:32:27] Speaker 02: He gave us one month. [00:32:28] Speaker 02: We didn't have any more facts. [00:32:30] Speaker 02: But we didn't need any more facts. [00:32:31] Speaker 02: So what you can review is whether it was appropriate to dismiss it in the first place under the proper standard, which is, did the First Amendment amended complaint provide fair notice to the defendants so that they could defend themselves? [00:32:43] Speaker 02: And it certainly did. [00:32:44] Speaker 02: The defendants misquoted. [00:32:47] Speaker 03: We review the judge's decision based on an abusive discretion, right? [00:32:51] Speaker 02: Yes. [00:32:51] Speaker 02: In this case. [00:32:52] Speaker 02: Yes. [00:32:53] Speaker 02: Yes, and I do believe that district courts could use this court's guidance on deciding. [00:32:59] Speaker 01: That's why I'm a little confused here. [00:33:01] Speaker 01: The judge says in response to the initial motion to dismiss, you haven't adequately pleaded a Minnell claim. [00:33:09] Speaker 01: But I'm not going to dismiss with prejudice. [00:33:12] Speaker 01: I'll give you some extra time to amend. [00:33:14] Speaker 01: And he gives you a deadline, and you don't meet it. [00:33:17] Speaker 01: Now, let's assume for a moment that he was entitled to give you a deadline and not meeting it. [00:33:23] Speaker 01: deprived you of the ability to amend. [00:33:27] Speaker 01: Can I review a dismissal without prejudice at the beginning? [00:33:35] Speaker 01: And tell me why, if I can, that dismissal without prejudice was incorrect. [00:33:41] Speaker 02: It was, first of all, I believe the court can't. [00:33:43] Speaker 02: I'm not aware of any case saying it can't. [00:33:46] Speaker 01: See, in most of the cases where that happens, the plaintiff says, I stand on my complaint, Judge. [00:33:54] Speaker 01: But take it up to the Court of Appeals and we'll rule on it. [00:33:56] Speaker 01: Here, you don't do that. [00:33:58] Speaker 01: He gives you the ability to amend, to fix the problems he's identified. [00:34:02] Speaker 01: And you don't do that. [00:34:03] Speaker 01: So that's what takes me back to Judge Smith's question. [00:34:05] Speaker 01: Am I reviewing for an abuse of discretion, or am I reviewing [00:34:09] Speaker 01: the, as you suggested at the beginning, de novo, the dismissal. [00:34:14] Speaker 02: You know, the standard is whatever we stated in our brief. [00:34:16] Speaker 02: I don't remember as I stand here right now, whether it's de novo or abusive discretion. [00:34:21] Speaker 02: But the court should have considered whether the complaint placed the defendants on notice of what the claims were, and it did. [00:34:31] Speaker 02: And in fact, [00:34:32] Speaker 02: all the particular policies and customs that we stated in the original first amended complaint ended up being evident here. [00:34:40] Speaker 02: And a jury could find, for instance, firing additional shots that are unnecessary, failing to give a proper warning, shooting upon only a potential threat. [00:34:48] Speaker 02: All of those turned out to be true. [00:34:50] Speaker 02: And in fact, the sheriff and undersheriff admitted when they explicitly ratified this that [00:34:57] Speaker 02: their actual policies were in conformance with the decisions that this officer made. [00:35:02] Speaker 03: So there's- I think we've given you lots of extra time. [00:35:06] Speaker 03: Okay. [00:35:06] Speaker 03: And then some. [00:35:06] Speaker 03: So we thank you very much for your argument to both parties. [00:35:10] Speaker 03: The case just argued is submitted. [00:35:12] Speaker 03: Thank you. [00:35:12] Speaker 03: Thank you very much.