[00:00:01] Speaker 04:
Please the court.

[00:00:03] Speaker 04:
My name is Kevin Gilbert.

[00:00:04] Speaker 04:
I represent the appellants and city and officer Gomez I would like to reserve five minutes for rebuttal if I could please This matter is the quintessential situation of an officer having to Make split-second decisions to save their own life in that situation.

[00:00:22] Speaker 04:
It's rapidly evolving and quick and

[00:00:25] Speaker 04:
They're faced with a situation where an individual comes at them.

[00:00:28] Speaker 04:
They have less than 17 seconds total from the time they exited the police vehicle until the fifth and final shot was fired.

[00:00:36] Speaker 04:
And in that situation, they faced a man who was armed with a knife who was coming towards them.

[00:00:43] Speaker 04:
Trial court denied qualified immunity, finding that there were disputed issues of fact and that the law was clearly established.

[00:00:53] Speaker 04:
In reaching that decision, the trial court appeared to have erred and followed the example that Justice Van Dyke criticized in Monson, sitting in an armchair being overly critical, second guessing the officers and cherry picking the facts.

[00:01:09] Speaker 04:
Specifically, the trial court

[00:01:12] Speaker 04:
cited that there was no dispute.

[00:01:15] Speaker 04:
about whether or not the suspect, whether Mr. Hart, posed a threat, found that he was not a threat.

[00:01:23] Speaker 04:
She also found that he was not, quote, armed, end quote, in the traditional sense, but there's no discussion in that.

[00:01:32] Speaker 04:
Now that is an excerpt of the record at page 15.

[00:01:36] Speaker 04:
Continuing on, the trial court found that there was possible speculative evidence

[00:01:43] Speaker 04:
that Mr. Hart did not pose an imminent threat.

[00:01:47] Speaker 04:
Now that discussion is at footnote four of the order, where the trial court was faced with a situation where plaintiff's own expert, Mr. Bercovici, admitted that Hart posed an imminent threat to the officers as he was armed and advancing towards them.

[00:02:04] Speaker 04:
trial court instead of recognizing that evidence and recognizes undisputed quoted that although plaintiff had not introduced any evidence to the contrary, there was a possibility that such evidence may be found somewhere in a transcript or somewhere, but not in the record in that case.

[00:02:24] Speaker 04:
The trial court also decided that there was a dispute of factors to the speed of Mr. Hart's advance.

[00:02:31] Speaker 04:
using words between charging, running, or walking.

[00:02:36] Speaker 04:
But the undisputed facts in this case are that we know the exact time.

[00:02:40] Speaker 04:
We know it because we have the 911 call.

[00:02:43] Speaker 04:
We can hear when the officers exit their vehicle.

[00:02:46] Speaker 04:
We can hear Ms.

[00:02:47] Speaker 04:
Hart summoning the officers, telling them, we're in the backyard, we need help.

[00:02:53] Speaker 04:
You can hear them enter the backyard and announce, drop the knife.

[00:03:00] Speaker 04:
You can hear the 2.6 seconds from the time they announced drop the knife until the shots were fired.

[00:03:07] Speaker 04:
You can hear the five shots in less than two seconds.

[00:03:11] Speaker 01:
So how does that establish the speed that he was moving on?

[00:03:14] Speaker 04:
Because no matter what adjective or verb you use, whether you describe it as walking or running, we know that the officers had a maximum of 17 seconds from the time they exited their vehicle.

[00:03:27] Speaker 04:
And we know, based on Kristin Hart's testimony and the audio, that the officers walked into the backyard and the minute they stepped foot in that backyard,

[00:03:37] Speaker 04:
they announced drop the knife and we know from listening to the audio that it took 2.6 seconds from the time drop the knife was uttered from officer Gomez's mouth until the suspect had closed to within 15 feet and shots were fired.

[00:03:55] Speaker 01:
Right, but the audio doesn't tell us where he started, right?

[00:03:59] Speaker 01:
So I mean, if we're just going by the audio, that would be consistent with him having been stationary the entire time, right?

[00:04:05] Speaker 04:
This is correct.

[00:04:06] Speaker 04:
But regardless, we get to the point of what material facts are appropriate to preclude summary judgment or qualified immunity.

[00:04:14] Speaker 04:
And turning to distance, whether he's at 25 feet, 17 feet, 10 feet, or actually resting on the officer's feet when the final shot is fired,

[00:04:24] Speaker 04:
None of that is significant or material to the qualified immunity determination because the cases that have addressed this have constantly stated that the most important factor is whether the suspect poses an imminent threat.

[00:04:39] Speaker 01:
You think it's not material whether he was moving towards them?

[00:04:42] Speaker 04:
I think it is absolutely material whether he's moving towards them, but there is zero evidence in the record to contradict the fact that he was advancing.

[00:04:51] Speaker 04:
Whether he was advancing at a walk or run is disputed.

[00:04:55] Speaker 04:
Kristen Hart came in and testified that she walked in the backyard, heard the officer announce, drop the knife.

[00:05:03] Speaker 04:
She heard, she herself made an announcement to him along those same lines and that she saw him start to move as she turned and started walking down the trail.

[00:05:12] Speaker 04:
So there is no dispute that he's moving.

[00:05:14] Speaker 04:
The physical evidence is also entirely consistent.

[00:05:18] Speaker 04:
We have the taser barb at 17 feet out where Officer Velez tried to tase him as he was running towards them or advancing.

[00:05:28] Speaker 02:
Then we have the physical- Yeah, you keep saying 17 feet.

[00:05:30] Speaker 02:
My understanding was, are you based off the fact that the taser dart was found 17 feet away on the ground?

[00:05:36] Speaker 02:
If I was to shoot at you with a taser dart and miss you, it doesn't hit an imaginary Marvel movie wall and then fall to the ground right at you.

[00:05:49] Speaker 02:
It goes past you.

[00:05:50] Speaker 02:
I understand you have to take all issues in the lightmost favor, and I think the court needs to do that.

[00:06:03] Speaker 02:
But the fact that the dart was found 17 feet means that it was some distance.

[00:06:06] Speaker 02:
It doesn't seem to me, how does that tell us anything about

[00:06:11] Speaker 02:
how far away he was when she tried to tase him.

[00:06:14] Speaker 02:
It just means that presumably he wasn't any further than 17 feet, but I think it seems extremely likely he was much closer than 17 feet.

[00:06:22] Speaker 04:
So, Judge Van Dyke, that's a good point, and that's actually one of our arguments and points.

[00:06:27] Speaker 02:
If he was closer than, say, at 25 feet... Because my understanding was, as far as where he landed, I mean, you know...

[00:06:35] Speaker 02:
They do a good job of laying out every bit of disputed issues in this case, and it's understandable.

[00:06:41] Speaker 02:
But what I'm saying is that the dispute isn't something between whether he landed 17 feet away or whether he landed at the feet.

[00:06:49] Speaker 02:
The dispute is more like, I got the impression, and I'll ask the other side about this, but that it's basically whether he landed at the feet or basically the distance that you two are from each other right now, something like that, not 17 feet.

[00:07:01] Speaker 02:
That would be very different, I think.

[00:07:03] Speaker 04:
But in either event, and I appreciate that difference, but under established case law, under all of the cases that are cited, they found that shooting a suspect 55 feet away starts to advance.

[00:07:15] Speaker 02:
Yeah, I know, because you can close distance way faster than people think.

[00:07:18] Speaker 02:
Exactly, and we hear that.

[00:07:19] Speaker 02:
I think we had that recent video in Nevada where

[00:07:21] Speaker 02:
One of you guys jumped over and jumped on the judge that I think everybody's seen.

[00:07:26] Speaker 02:
I understand, but I just don't think that's... I'm just trying to figure out what the actual factual disputes are, and by you saying 17 feet, I didn't even... I didn't think that was actually the breadth of the dispute here, as far as where he ended up after the shooting.

[00:07:42] Speaker 04:
Your Honor, I don't know that there is an actual dispute as to how close he was or the advance.

[00:07:47] Speaker 02:
Well, it seems there's an actual dispute about that, but it seemed to me to be at the feet versus

[00:07:52] Speaker 02:
a few feet away.

[00:07:53] Speaker 04:
Five feet.

[00:07:54] Speaker 02:
Yeah, something like that.

[00:07:55] Speaker 04:
Still within striking distance.

[00:07:57] Speaker 04:
The dispute, as I understood the court's decision, was there's a factual dispute.

[00:08:03] Speaker 04:
Was he running?

[00:08:04] Speaker 04:
Was he walking?

[00:08:05] Speaker 04:
Was he charging?

[00:08:07] Speaker 04:
And whatever verb is used in that does not matter, because going back to your Monson case, Judge Van Dyke, 4.5 seconds.

[00:08:15] Speaker 02:
It seems like the numbers run from somewhere between, when you sit and run the numbers based on what the expert, I think they were, the plaintiff's expert said,

[00:08:22] Speaker 02:
I mean, I think they're talking about somewhere from four point something miles per hour to five point something miles per hour.

[00:08:34] Speaker 02:
And three is walking, so.

[00:08:36] Speaker 04:
If we go off of plaintiff's expert's analysis, where they say 1.5 miles an hour beginning and advancing to a speed of 3.5, there would have been a maximum of 5.9 seconds.

[00:08:49] Speaker 04:
And that is at the record at 8 to 0 for the experts of record.

[00:08:55] Speaker 04:
But that ignores the evidence we do have.

[00:08:59] Speaker 04:
We have the audio where we can hear

[00:09:02] Speaker 04:
when the officers announced drop the knife and where that corresponds with Kristen Hart's testimony that he was roughly 25 feet out in the yard and then we have the audio that less than two seconds thereafter all five shots have been fired so you have the 2.6 seconds between the announcement of drop the knife and the first shot and then you have two seconds on top of that so you're still less than five seconds at less than five seconds

[00:09:30] Speaker 04:
Mr. Hardes came to rest at the officer's feet, still armed with a knife.

[00:09:34] Speaker 01:
Can I just ask a clarifying question about the audio?

[00:09:37] Speaker 01:
When you refer to the audio, are you referring to the police radio recording or?

[00:09:43] Speaker 01:
911 dispatch.

[00:09:45] Speaker 01:
The 911?

[00:09:46] Speaker 01:
Yes.

[00:09:49] Speaker 01:
I believe one or both of the expert, there's an expert report that referred to the doorbell camera audio.

[00:09:55] Speaker 01:
Was the doorbell camera audio itself introduced in the district court?

[00:10:00] Speaker 04:
It was.

[00:10:01] Speaker 04:
So the 911 audio is experts of the record 737, where you can hear everything.

[00:10:07] Speaker 04:
The doorbell, the ring doorbell was actually from the adjacent neighbor.

[00:10:11] Speaker 04:
And what you can hear is certain loud noises, and you can definitely hear the gunshots and the duration of the gunshots.

[00:10:18] Speaker 04:
But other than that, the ring doorbell audio is largely not helpful to either side.

[00:10:25] Speaker 04:
It's largely inconsequential.

[00:10:26] Speaker 04:
So getting back to Judge Van Dyke, your question or your comments, the question is we have somebody who's advancing.

[00:10:34] Speaker 04:
If you look at the Buchanan case, the Torbino case, all of these involve situations where suspects were 25 feet away, 50 feet away, 75 feet away.

[00:10:44] Speaker 04:
Seventy-five might be on the outer skirts of maybe that's not appropriate, but published decisions

[00:10:49] Speaker 04:
The Buchanan decision upheld 55 feet as objectively reasonable for an officer using force to defend their life.

[00:10:58] Speaker 04:
In this case,

[00:11:00] Speaker 04:
that would be clearly established.

[00:11:02] Speaker 04:
That's what the officers get to rely upon.

[00:11:05] Speaker 04:
And in fact, if we look even further, we look at what the court looked at.

[00:11:09] Speaker 04:
It relied on Diorley and Voss.

[00:11:12] Speaker 04:
Neither one of those cases are factually opposite.

[00:11:16] Speaker 04:
Both of them are factually distinguishable.

[00:11:18] Speaker 04:
Diorley involved a situation where a mentally unstable individual

[00:11:24] Speaker 04:
was at a distance.

[00:11:26] Speaker 04:
He never threatened anybody.

[00:11:28] Speaker 04:
He was compliant.

[00:11:29] Speaker 04:
Although he was acting erratically, he was doing it at a distance on his property, never approaching anybody, never physically threatening.

[00:11:39] Speaker 04:
Despite that situation, the officers decided to use force to direct his compliance.

[00:11:46] Speaker 04:
The Supreme Court has actually commented that Diorley should not be used to define clearly established.

[00:11:52] Speaker 04:
It's been very clear with that standard.

[00:11:54] Speaker 04:
VAS was a similar situation.

[00:11:57] Speaker 04:
Officers had a suspect surrounded.

[00:11:59] Speaker 04:
The suspect was mentally ill.

[00:12:01] Speaker 04:
They had them fully contained.

[00:12:02] Speaker 04:
They had less lethal options available to them that they did not utilize.

[00:12:08] Speaker 04:
They decided instead to go directly to lethal force despite the fact that they had those options and there was not an imminent threat.

[00:12:16] Speaker 04:
And what's more in Voss, none of the officers contemplate or even thought Voss was armed, unlike the situation here.

[00:12:28] Speaker 04:
Now I recognize that our trial court stated that he's not quote unquote armed,

[00:12:35] Speaker 03:
do you think that the judge was focusing on that because he didn't have a firearm right so the distances you can be very large distance away from somebody if you have a gun you can shoot them from a distance so here the the threat the imminent threat is different because he has a knife a weapon that's on his person so he has to come

[00:12:55] Speaker 03:
right up to the officers before he can attack them or harm them.

[00:12:59] Speaker 04:
No, I don't believe that because in the context that is discussed in the oral argument transcript, which I think is highly relevant and the court should look at, the judge explains that she was shocked at the officer's conduct and she kept focusing on the mentally ill aspect of the case, of the fact that this was a mentally ill individual who was in the midst of committing suicide when the officers encountered him.

[00:13:22] Speaker 04:
She, in the order as it reads, continually references those facts and likens it to Diorly and Voss.

[00:13:29] Speaker 04:
In other words, the exact cherry picking of facts and second guessing that has been criticized, not only by the Supreme Court, but in numerous Court of Appeal opinions.

[00:13:39] Speaker 04:
This should not be judged from the 2020 vision of hindsight that the Supreme Court and Graham said absolutely was inappropriate.

[00:13:46] Speaker 04:
It should be judged from the officer's feet on the ground.

[00:13:49] Speaker 01:
Did you want to reserve some of your time for rebuttal?

[00:13:53] Speaker 04:
Yes, your honor.

[00:13:53] Speaker 04:
Thank you.

[00:13:54] Speaker 04:
If I could make one more point.

[00:13:57] Speaker 04:
What's more, the Ninth Circuit has been very clear that there are not separate tracks for addressing imminent threat from a mentally ill individual and a serious criminal.

[00:14:08] Speaker 01:
Thank you.

[00:14:11] Speaker 01:
Mr. Nissenbaum.

[00:14:12] Speaker 00:
Thank you.

[00:14:12] Speaker 00:
May it please the Court.

[00:14:14] Speaker 00:
I think the Court has identified that there are material factual disputes that have to be decided by a jury.

[00:14:22] Speaker 00:
Critical, the critical factual dispute is the manner that Mr. Hart moved towards the officers.

[00:14:32] Speaker 00:
Let me ask you about that.

[00:14:36] Speaker 02:
The problem is that if we characterize it as

[00:14:40] Speaker 02:
You know, was he moving?

[00:14:42] Speaker 02:
Was he walking?

[00:14:42] Speaker 02:
Was he walking briskly?

[00:14:44] Speaker 02:
Was he running?

[00:14:45] Speaker 02:
Was he sprinting?

[00:14:45] Speaker 02:
Was he crawling?

[00:14:47] Speaker 02:
It's all sort of very subjective, it seems to me.

[00:14:50] Speaker 02:
In theory, one person could say somebody was walking, another person could say they were running, and really

[00:14:56] Speaker 02:
they both perceive them to be doing the same thing, walking briskly.

[00:14:59] Speaker 02:
So at the end of the day, but there's physics, right?

[00:15:03] Speaker 02:
And the person, I think if I remember right, 37 feet was the maximum distance.

[00:15:08] Speaker 02:
So it's taking all the facts in light, most variable, 37 feet.

[00:15:12] Speaker 02:
Is that, do you disagree with that?

[00:15:14] Speaker 02:
I think it was, I think there was some testimony, it was 25, but if you take 37, it's the farthest.

[00:15:19] Speaker 00:
I don't disagree with that per se.

[00:15:20] Speaker 02:
Okay, let me, so 37 feet, 5.9 seconds, do you disagree with that's the maximum amount of time?

[00:15:27] Speaker 02:
We have audio recordings that show that the time from when they enter, I mean, 17 seconds from whatever time they are, so do you think it's more than 5.9?

[00:15:35] Speaker 00:
It depends on the question the court is asking.

[00:15:38] Speaker 00:
If you're asking the question of when shots were fired,

[00:15:41] Speaker 02:
No, from the time when they first saw him to the time when the, I guess the last shot was fired and he fell to within some, I know there's a dispute about precisely how close, but to within

[00:15:53] Speaker 02:
relatively close to the officer.

[00:15:54] Speaker 02:
That was 5.9 seconds at the maximum, you agree?

[00:15:58] Speaker 00:
I think that that's true, but I don't know that the distance that he moved in that time.

[00:16:03] Speaker 02:
I know, but he moved some distance.

[00:16:05] Speaker 02:
In other words, the most generous would be he started 37 feet away, ended within, let's say, five feet of the officers, and closed that distance.

[00:16:15] Speaker 02:
Then that speed is over

[00:16:18] Speaker 02:
If you do the math, that speed is over three miles per hour.

[00:16:22] Speaker 02:
It's pretty well understood that a normal walking pace is three miles an hour.

[00:16:26] Speaker 02:
So this person was either walking or walking faster than walking.

[00:16:32] Speaker 02:
There was some speed that was over walking with a knife towards the officers being told to stop and drop the knife, right?

[00:16:38] Speaker 02:
And so you can't dispute the physics if that's the case.

[00:16:42] Speaker 02:
And so why is that not

[00:16:45] Speaker 02:
Well, your own expert said that that was an imminent threat.

[00:16:49] Speaker 00:
What he said was it was an imminent threat if, and he went on to say, if you assume that the officer's feet are stuck in cement and they can't move, because that's not the end of the inquiry.

[00:17:02] Speaker 02:
Remember, one of the factors to think about is whether or not this person is going to go out and harm others, right?

[00:17:06] Speaker 02:
So the officers are blocking his own exit.

[00:17:08] Speaker 02:
But you're saying the officer should have moved so that he could have went out in the street with a knife.

[00:17:12] Speaker 02:
I mean, how is that not second guessing the officer?

[00:17:17] Speaker 00:
It's totally an deposit, because you don't have any of those facts.

[00:17:20] Speaker 00:
In other cases, for example, VAS, which I think is as close to all fours as it gets here.

[00:17:27] Speaker 00:
But in VAS, that was a person who had been threatening other people.

[00:17:31] Speaker 00:
That was a person who had a metallic object in his hand that turned out to be a pair of scissors that the officers thought could be a knife.

[00:17:41] Speaker 00:
That was a case in which a constitutional violation was found.

[00:17:45] Speaker 00:
That was a case in which he ran at the officers.

[00:17:48] Speaker 00:
And in this case, there's no indication that Mr. Hart had threatened anyone else quite the opposite.

[00:17:55] Speaker 00:
The government and this is not two tracks.

[00:17:57] Speaker 02:
All I'm saying is I don't understand, for qualifying many purposes,

[00:18:01] Speaker 02:
I mean, your position isn't that if somebody is closing the distance between the officers at a walk or faster, and closes to within, say, five feet, which I think the record here, it closes within five feet, that the officers at a walk or faster, holding a knife, I know there's some dispute about where exactly it was, but clearly holding a knife, that the officers have to, that in addition to that, the person has to have demonstrated something that shows

[00:18:31] Speaker 02:
direct to somebody else?

[00:18:33] Speaker 02:
At what point do the officers?

[00:18:37] Speaker 00:
I would take Officer Gomez's own testimony, which is that had Mr. Harp been walking towards him, that he would have had the time to change his location, redeploy,

[00:18:50] Speaker 02:
I don't understand this.

[00:18:51] Speaker 02:
I honestly don't understand it because I guess your position is like if somebody like our kind officer back there in the back corner, right?

[00:19:00] Speaker 02:
So somebody starts walking towards him with a knife, right?

[00:19:03] Speaker 02:
And then he's supposed to like walk around the courtroom with his gun backing away being, sir, please drop the knife, please drop the knife.

[00:19:09] Speaker 02:
And then at what point can he just decide, you know what, we've got a person with a knife and he keeps walking towards me and he's within five feet of me and I think I need to stop the threat.

[00:19:17] Speaker 00:
You have a person who's bleeding from serious injuries to his, to his neck area, to his wrist area.

[00:19:25] Speaker 00:
You have a person who's bled so much, he's bled all over his wife.

[00:19:29] Speaker 00:
Again, he hasn't threatened anyone.

[00:19:30] Speaker 02:
You're still walking towards them with a knife.

[00:19:32] Speaker 02:
Like that's, that's, that doesn't make, I mean it sounds a little bit like a horror movie to me.

[00:19:37] Speaker 02:
Like it doesn't, it doesn't,

[00:19:40] Speaker 02:
It doesn't make it better.

[00:19:41] Speaker 02:
Like at the end of the day, if the person looks like they've been shot in the head, but they're still walking towards you with a knife, I would say, boy, they're pretty determined.

[00:19:49] Speaker 00:
I think that removes the context in this case completely.

[00:19:52] Speaker 00:
This was a call for a person who was committing suicide in the process of it.

[00:19:58] Speaker 00:
This is a call for a person who had not threatened anyone.

[00:20:01] Speaker 00:
This is a situation where the officer concedes.

[00:20:05] Speaker 00:
Had he been walking, he would have had the grounds and the space based on Officer Velez's testimony to move and change his position.

[00:20:14] Speaker 00:
You also have the barriers.

[00:20:16] Speaker 00:
It's not like it's a clean shot between that person and myself.

[00:20:21] Speaker 02:
you have uh... there's a barrier but uh... that's the other thing i didn't understand about the barrier argument he apparently got around or somehow around because he doesn't fall on that side of the barrier he falls on this side of the barrier so I mean again is the officer back there supposed to like walk around the council's table here and use it to please put down the knife I mean at what point the officer had moved actually what they're supposed to do is use the taser that didn't happen properly here but one thing I want to say they did try to use the taser

[00:20:51] Speaker 00:
Well, he fired simultaneous to the Taser.

[00:20:54] Speaker 00:
There's literally 0.19 milliseconds.

[00:20:58] Speaker 00:
between when the taser was fired and when the gun was fired, .19 milliseconds.

[00:21:03] Speaker 00:
That's simultaneous.

[00:21:05] Speaker 02:
You have six seconds that this person closed the distance between them.

[00:21:10] Speaker 02:
And you're saying, I mean, I suppose they should have coordinated and said, I'll tell you what, when we get it within four seconds and you fire the taser, and then when they get within like five seconds, then I'll fire the gun if it doesn't work.

[00:21:22] Speaker 00:
The training is you make affirmative steps to keep a distance from this person because there's nobody else in the backyard, because there's nobody else in immediate harm, in immediate threat from him.

[00:21:37] Speaker 00:
So you take affirmative steps to change your location, to slow the incident down.

[00:21:43] Speaker 00:
That's part of the officer's job in this circumstance.

[00:21:46] Speaker 00:
And even in Vaas, where the person had been threatening,

[00:21:50] Speaker 00:
When he and run and ran towards the officers the the court found a constitutional violation could be proven this case Because there was again.

[00:22:02] Speaker 00:
It's a question of fact It is a question of material fact whether or not there was a time just because the officers shot when he shot doesn't mean that he had to shoot when he shot, but the other point is Officer Velez testified that a that officer Gomez was to her right

[00:22:20] Speaker 00:
and Mr. Hart fell to her left.

[00:22:23] Speaker 02:
I think he testified that, I think, if I remember right, when I actually looked into your august, that he testified that he thought she, you know, she was behind him.

[00:22:29] Speaker 02:
I think he assumed that she was to her right.

[00:22:32] Speaker 02:
I'm not sure he actually testified he knew she was to her right.

[00:22:34] Speaker 02:
I think he, I think that's where he assumed she was.

[00:22:37] Speaker 00:
I'm saying something else, Your Honor.

[00:22:38] Speaker 00:
Officer Velez contradicts Officer Gomez.

[00:22:42] Speaker 00:
Officer Gomez claims that Mr. Hart fell at his feet.

[00:22:47] Speaker 00:
But according to Officer Velez,

[00:22:49] Speaker 00:
Officer Gomez was to her right, and Mr. Hart fell to her left.

[00:22:54] Speaker 00:
So that changes that calculation.

[00:22:58] Speaker 02:
This is a lot of disputed facts.

[00:23:01] Speaker 02:
And there's some disputed facts, for sure.

[00:23:02] Speaker 02:
But a lot of them, I guess the question for the court seems to me has to be, you know, if I say somebody fell at my feet, in my head, I might be, if you fall within five feet, you're falling at my feet, you know, as opposed to clear over there by the wall.

[00:23:16] Speaker 02:
And so I'm not, at the end of the day, I think, as a court, what we would do is we wouldn't just say, aha, here's the difference.

[00:23:22] Speaker 02:
And now there's a speed issue, material fact.

[00:23:27] Speaker 02:
No, you can't have qualified immunity.

[00:23:30] Speaker 02:
It has to go to jury.

[00:23:31] Speaker 02:
Instead, you would say, take what you would assume in the most favorable to your client.

[00:23:38] Speaker 02:
And then you'd say, does that actually change the result?

[00:23:42] Speaker 02:
And in this instance, so if you say, OK, so that's why I was saying five feet, instead of like,

[00:23:46] Speaker 02:
right at his feet.

[00:23:47] Speaker 02:
Let's say it's five feet away.

[00:23:48] Speaker 02:
He started as far away as 37 feet and got to within five feet when he fell.

[00:23:53] Speaker 00:
And during that time, the officer stood still.

[00:23:57] Speaker 02:
For six seconds.

[00:23:58] Speaker 02:
For six seconds.

[00:23:59] Speaker 00:
Exactly, exactly, exactly.

[00:24:02] Speaker 00:
The officer knows what he's coming into.

[00:24:04] Speaker 00:
He knows this is a situation where a person is suicidal.

[00:24:08] Speaker 00:
The officer, in this situation, especially because there has been nobody else who's harmed, nobody else who is at threat, the officer's own conduct leading to this weighs more.

[00:24:22] Speaker 00:
There's a greater factor here.

[00:24:25] Speaker 01:
And how does he know?

[00:24:26] Speaker 01:
I mean, when the officers arrive, they find Mrs. Hart covered in blood, right?

[00:24:35] Speaker 01:
And she says, you know, he's in the backyard.

[00:24:37] Speaker 01:
And how in the, you know, I guess it took them, if it was, you know,

[00:24:43] Speaker 01:
17 minus 5 maybe 12 seconds between when they arrived and talked to her and until they got into the backyard You really think that their observations in that 12 seconds should have been enough to assure them that He was a threat only to himself.

[00:24:59] Speaker 00:
Well, there was no report of anything else Right there.

[00:25:03] Speaker 00:
There was no report.

[00:25:03] Speaker 00:
There was no inquiry of her.

[00:25:05] Speaker 00:
They did not believe that he had harmed her they believed it was his blood only and

[00:25:11] Speaker 03:
But isn't the question whether they believe that he was a threat to them.

[00:25:14] Speaker 03:
They may not have thought that he was a threat to Mrs. Hart or to somebody out on the road, but he was advancing towards them with a knife.

[00:25:23] Speaker 03:
So, you know, to Graham, that's the most important consideration is whether they have a reasonable belief that their safety or the safety of others

[00:25:31] Speaker 03:
is at risk.

[00:25:32] Speaker 03:
So I think your point is either it wasn't reasonable for them to conclude that he was a threat at that point because he only had a knife and he was already bleeding and he maybe wasn't moving towards them that quickly or that it's a factual dispute and a jury should decide that.

[00:25:49] Speaker 00:
I think what I'm saying the jury should decide the significance of his threat given his condition and whether or not he was moving.

[00:25:56] Speaker 03:
But his condition it seems like it's not like the cases where and forgive me I'm forgetting the name of the case where the officer fired a shot and shot the offender and then backed up had time to clear the gun that had jammed person was down on the ground wasn't moving towards them they shot him again.

[00:26:14] Speaker 03:
I mean, that's where I think the case law talks about the person's condition that they're not a threat, that it's clear they can't be a threat.

[00:26:21] Speaker 03:
He wasn't incapacitated.

[00:26:22] Speaker 03:
He was bleeding, but he was walking towards them, right?

[00:26:25] Speaker 00:
He's bleeding.

[00:26:26] Speaker 00:
He's walking towards them.

[00:26:27] Speaker 00:
But the character of the approach is significant.

[00:26:31] Speaker 00:
It's significant because the officers had alternatives.

[00:26:35] Speaker 00:
They had those available.

[00:26:37] Speaker 00:
Retreat, redeployment is an alternative.

[00:26:41] Speaker 00:
And then if he starts moving at them faster, but in this case, none of those were considered.

[00:26:47] Speaker 00:
And it boggles, it is hard to understand why an officer would not consider those unless they just weren't trained to.

[00:26:55] Speaker 00:
Now, of course, we know that they would have handled it differently, and they would have done that.

[00:26:59] Speaker 02:
They had six seconds to, and I don't, like, I guess saying they're trained just seems so good that.

[00:27:04] Speaker 02:
I'm not sure that you're even correct that that would be a good scenario.

[00:27:07] Speaker 02:
Let's assume that that's what your expert was going to say and that they should have.

[00:27:10] Speaker 02:
They had six seconds.

[00:27:12] Speaker 02:
So what good is, I mean, the whole point of qualified immunity is they don't have to make perfect decisions, right?

[00:27:16] Speaker 02:
Like, I mean, how is this not sort of close enough, I mean, when we're talking about six seconds to make that decision?

[00:27:27] Speaker 00:
The analysis is the totality of the circumstances.

[00:27:31] Speaker 00:
And that does include a time factor, of course.

[00:27:34] Speaker 00:
But the officer does have an obligation as well as to their own conduct and whether or not it's reasonable under the circumstances to increase the time.

[00:27:44] Speaker 00:
In this case, by increasing the distance from him.

[00:27:47] Speaker 00:
And because there's nobody else in the backyard, no information of anyone else in the backyard, because this is a person who has only threatened himself.

[00:27:56] Speaker 02:
On the crease of distance, I mean, I assume the backyard, they said it's kind of a spacious backyard, so I don't know the exact dimensions, but I assume it's like this size of this room.

[00:28:03] Speaker 00:
Officer Velez testified it was a spacious back.

[00:28:06] Speaker 02:
Yeah, right seems pretty spacious room to me but like but but like would the officer need to It seems like two options to increase the distance one would be to just move around this room or to move around the backyard, right?

[00:28:19] Speaker 02:
Right and the other would be to retreat and go back out the way that the two came in Which are you saying that the officers?

[00:28:26] Speaker 00:
Should have done I'm saying that They could have done either

[00:28:32] Speaker 00:
But certainly, they have the table and the child's playset between them.

[00:28:38] Speaker 00:
So they have a barrier of something, of some sort.

[00:28:42] Speaker 00:
And again, you have a person who's walking.

[00:28:45] Speaker 00:
So yeah, the person gets closer to you if you stand still.

[00:28:48] Speaker 00:
But if you don't stand still, you can create distance from that person.

[00:28:53] Speaker 00:
And that's what, in this situation,

[00:28:56] Speaker 00:
That's what had to happen.

[00:28:58] Speaker 00:
And there's no, because there's nobody else who appears to be in harm's way.

[00:29:04] Speaker 00:
The only person who could be harmed are the officers.

[00:29:08] Speaker 00:
They can remove that threat by moving themselves further back.

[00:29:13] Speaker 00:
And that's why it is critical that he walked as opposed to ran.

[00:29:19] Speaker 00:
And that's why Officer Gomez himself conceded.

[00:29:22] Speaker 00:
Had he been walking, that's what he would have done.

[00:29:25] Speaker 00:
Of course, he says that after my questioning.

[00:29:28] Speaker 00:
And we know from Officer Velez, she tried to testify initially that, oh, it was a

[00:29:35] Speaker 00:
First, some people would call it running.

[00:29:37] Speaker 00:
Then he went right into a brisk walk.

[00:29:40] Speaker 00:
But her initial statement, as she agreed, and her recollection was clarified, it started as a light walk, meaning he started moving slowly towards them, and it picked up to a brisk walk.

[00:29:53] Speaker 00:
At that time, they're just standing there, and that is not acceptable or reasonable in this situation.

[00:29:59] Speaker 01:
Thank you, Counsel.

[00:30:00] Speaker 00:
Thank you.

[00:30:15] Speaker 04:
the think the most important factors we need to consider

[00:30:19] Speaker 04:
are what should be looked at when evaluating the reasonableness of force and qualified immunity.

[00:30:24] Speaker 04:
As this court stated just recently in Agdeppa versus Smith, the most important factor is whether the suspect posed an imminent threat to the officers.

[00:30:36] Speaker 04:
There's no question that that was the case here.

[00:30:39] Speaker 04:
And in fact, it's not a matter of waiting to see if he uses the knife.

[00:30:43] Speaker 04:
And in fact, as the court again stated in a state of Larson,

[00:30:48] Speaker 04:
A reasonable officer need not await the glint of steel before taking self-protective action.

[00:30:54] Speaker 04:
By then it is often too late to take safety precautions.

[00:30:59] Speaker 04:
We're faced with a situation where the officers had less than five seconds to defend their life.

[00:31:06] Speaker 04:
They're being second-guessed by cherry-picking specific facts rather than looking at totality of the circumstances.

[00:31:13] Speaker 04:
The totality of the circumstances was that they had an armed man disobeying commands to drop the knife, acting erratically in a confined area with a muddy yard where they were faced with trying to defend their lives and the lives of one another.

[00:31:31] Speaker 01:
Thank you.

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

[00:31:32] Speaker 01:
Thank both counsel for the arguments and the cases submitted.