[00:00:00] Speaker 00:
Our next case on calendar is Eyer versus City of Fairbanks 23-35206.

[00:00:08] Speaker 00:
Each side will have 15 minutes.

[00:00:17] Speaker 02:
Good morning.

[00:00:18] Speaker 02:
We appreciate you coming to Alaska, saving the trip to Seattle.

[00:00:21] Speaker 02:
Thank you for that.

[00:00:23] Speaker 02:
I'd like to reserve three minutes for rebuttal.

[00:00:26] Speaker 02:
The district court's decision in this case erred in denying the defendant's motion for summary judgment on qualified immunity for two primary reasons.

[00:00:34] Speaker 02:
First, the district court's decision failed to recognize the significance of its finding, that at the time that Mr. Ayer was shot, he posed a sudden and immediate threat to the arresting officers.

[00:00:45] Speaker 02:
And this was the reason, this is what prompted Mr. Ayer's shooting.

[00:00:50] Speaker 02:
Second, enfalting the police officers for keeping Mr. Eyre within their lights and sight so he could not escape into the darkness and potentially harm others.

[00:01:02] Speaker 02:
To move to my first point, district court made a very important finding in this case.

[00:01:07] Speaker 02:
The district court correctly found that Mr. Eyre suddenly pointed his firearm at the responding officers while verbally threatening him.

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And this action is what prompted the officers to respond with deadly force.

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Now, this circuit has routinely held that the suspect presenting themselves as an immediate threat to the officers is one of the most important factors that needs to be analyzed in an excessive force of use claim.

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And once this finding is made, it's not dependent upon whether or not you present yourself as a threat to people.

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It's either the officers or the public.

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And it doesn't depend on whether you have one or both.

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As long as you have one.

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District Court in its decision in this case distinguished Blandford versus Sacramento on the basis that in Blandford, the suspect at that time presented himself as a threat to the public.

[00:02:05] Speaker 02:
He was going to enter into a home, but not to the officers.

[00:02:08] Speaker 02:
When the case law in this case, in the Ninth Circuit, Wilkinson versus Torres, for example, says it's either one.

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It doesn't matter whether it has to be one or the other or both.

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And in this case, he presented himself as an immediate threat to the arresting officers at the time that he was shot.

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Kraus versus, there's a unique thing about the district court's order in this case.

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In footnote 206, whenever the court is finding that,

[00:02:35] Speaker 02:
that the warning that there should have been a warning that was given to Mr. Eyre in this case.

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It was somehow insufficient under the facts of the case.

[00:02:43] Speaker 02:
In footnote 206, the court cites contrary authority.

[00:02:46] Speaker 02:
Two cases that say whenever somebody is pointing a gun at you under the circumstances similar to this, that a warning of drop the firearm is sufficient.

[00:02:57] Speaker 02:
Kraus versus County of Mohave.

[00:02:59] Speaker 02:
is one of those and Craig versus County of Santa Clara is another.

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District Court's own order acknowledged that there was a, that the case law on the Ninth Circuit was conflicting under the circumstances present in this case.

[00:03:12] Speaker 02:
Specifically, let's talk about Krause versus County of Mojave first.

[00:03:16] Speaker 02:
In that case, the officers arrive at a residence.

[00:03:20] Speaker 02:
Mr. Krause comes to the door and starts to raise a firearm at the officers.

[00:03:24] Speaker 02:
They shout drop the gun

[00:03:26] Speaker 02:
And then he didn't, and they shot Mr. Krause as an immediate threat to them without any warning whatsoever.

[00:03:34] Speaker 03:
Can I ask you, the shooting here from the first shot to the last by my count of the video spans something like 18 seconds, I think.

[00:03:45] Speaker 03:
And the plaintiff is making, one of the arguments on the other side is that even if the decision to open fire was justified, that at a certain point the decision to continue firing was not.

[00:04:00] Speaker 03:
So can you address that?

[00:04:02] Speaker 02:
I'd have two responses to that, Your Honor.

[00:04:04] Speaker 02:
First is that that was not an argument that was raised and presented to the district court below.

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Secondly, it's kind of ironic in this case that there's two criticisms that are made of the officers in this case.

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One is that they're somehow at fault for trying to keep him within their lights and sights, so they can keep an eyesight, keep him in their eyesight.

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and respond to what he may do.

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And the other is then that they didn't precisely know exactly what he was doing and whenever they shot over a period of time because it's 10 below.

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He's quite a distance away from them.

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There's smoke and heat and all these things going on that obscure people's visions.

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And so we're kind of criticizing the officers for two different, the two different things that are directly in conflict.

[00:04:48] Speaker 02:
They didn't have a great- Why isn't that a jury question?

[00:04:51] Speaker 00:
I mean, why shouldn't the jury get to figure out whether the officers could see that he was down and maybe didn't have the firearm even in his hand anymore?

[00:05:01] Speaker 02:
Because there is no clearly established law that says that under these circumstances, they were doing something that was inappropriate.

[00:05:07] Speaker 00:
Well, there is clearly established law that says if he's down and doesn't have the firearm, they can't shoot him more, right?

[00:05:12] Speaker 02:
Yes.

[00:05:13] Speaker 00:
And so isn't that a fact dispute whether that's the situation at least before the end of the shooting?

[00:05:18] Speaker 02:
We back up.

[00:05:19] Speaker 02:
There's clearly established law that says that if they're down and disabled and no longer presenting themselves as a threat to the arresting officers, you have to stop shooting.

[00:05:28] Speaker 02:
What you have in this case is some officers, given the smoke, the cold, the heat, believe that he was on the ground but still presented himself as a threat and continued to shoot.

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And if the jury believes that, then it will be true that they have a full defense.

[00:05:43] Speaker 00:
But if the jury doesn't believe that because some of the officers said they could see him and he was down and didn't have the gun anymore, then if the jury believes those officers, the jury could rule for the plaintiffs, right?

[00:05:54] Speaker 00:
Isn't this a jury question?

[00:05:56] Speaker 02:
if you get to that far along in the analysis, and you question whether or not these officers had the right to start shooting in the first instance, and they had the right to shoot... That's not what I... I'm trying to follow up on Judge Miller's question.

[00:06:09] Speaker 00:
Let's assume they had the right to start shooting in the first instance, but at some point...

[00:06:14] Speaker 00:
I mean, you can hear it on the video.

[00:06:16] Speaker 00:
They say he's down and then they say, you know, is he moving?

[00:06:18] Speaker 00:
I mean, they're talking about what they're seeing.

[00:06:20] Speaker 00:
And some of the officers in their deposition testimony seem to say that before the end of the shooting, he was down and didn't even have the gun anymore.

[00:06:27] Speaker 00:
So if the jury believed that testimony, then I don't see how you could win because you already said that if he isn't a threat anymore, you can't shoot him.

[00:06:37] Speaker 02:
Your Honor, I'm not aware of anywhere in the record where anybody said he was down.

[00:06:41] Speaker 02:
They recognized he was down and didn't have the gun anymore before the shooting stopped.

[00:06:45] Speaker 00:
So Officer Jocelyn at 277 to 78 says, fell to the ground and he was no longer a threat.

[00:06:52] Speaker 00:
And then she talks, I think it's a sheet, talks about more shooting after that, which means it was in the middle.

[00:06:58] Speaker 02:
Yes.

[00:06:59] Speaker 00:
So why isn't that testimony that the jury could use to believe that he should not have been shot any further?

[00:07:06] Speaker 02:
because under the facts of this case and under clearly established case law there is no reason why these officers couldn't have slightly different perceptions because of their inability to see Mr. Eyre because under the facts of the case he's quite a bit of distance from them and there's smoke there's gas there's these kind of things going on and you have a right as a police officer to continue to shoot until you know that the threat has been neutralized

[00:07:31] Speaker 00:
I agree with you that if the jury finds that they couldn't really see and they didn't know that the gun was down, that you would win.

[00:07:38] Speaker 00:
But I'm still having trouble understanding why this testimony doesn't create a fact dispute that needs to go to a jury.

[00:07:45] Speaker 02:
Because it's not inconsistent for these officers to have different perceptions of Mr. Eyre under these circumstances.

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because they can't see him that well.

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And so there's nothing inconsistent about that.

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If I'm an officer and I'm here and I'm shooting at Mr. Eyre because I believe he's presenting himself as an immediate threat to me, I have a right to shoot until I know that that threat has been terminated.

[00:08:07] Speaker 00:
So are you saying that her testimony, I think, Officer Jocelyn, I don't know the gender, that Officer Jocelyn's testimony does not create a fact dispute about whether they could see and what he was doing?

[00:08:18] Speaker 02:
As to what I'm saying is the testimony of one officer does not create a fact dispute as to the other officers in the circumstances where their vision and their ability to detect Mr. Eyre is different because they're quite a bit away.

[00:08:34] Speaker 02:
We have smoke.

[00:08:35] Speaker 02:
We have heat.

[00:08:36] Speaker 02:
It's 10 below.

[00:08:37] Speaker 02:
And so they are not seeing the same things.

[00:08:39] Speaker 00:
So usually we have cases that say when the officers have conflicting testimony, that creates a fact dispute.

[00:08:46] Speaker 00:
You obviously can't ask the decedent what was going on because he's not here anymore.

[00:08:49] Speaker 00:
So usually when the officers have different testimony, that makes it a jury question.

[00:08:55] Speaker 00:
But you're saying there's something different about this case in particular.

[00:08:57] Speaker 02:
I'm saying that in this case, the officers were quite some distance from Mr. Eyre.

[00:09:02] Speaker 02:
There was things that were obstructing their vision, and there's nothing inconsistent about their observations of Mr. Eyre being different under those circumstances.

[00:09:11] Speaker 02:
In fact, you would expect it to be different.

[00:09:14] Speaker 02:
If they're different, it doesn't make them inconsistent.

[00:09:16] Speaker 02:
What would make them inconsistent is you're both seeing the same thing, you both have the opportunity to detect the same thing.

[00:09:22] Speaker 02:
and you report different things.

[00:09:24] Speaker 02:
In this case, these folks are spread out, they're there, and what they see from one officer to the other is expected to vary, given the conditions that they were operating under at the time.

[00:09:35] Speaker 00:
Is that requiring us to take the inferences in the officer's favor, though?

[00:09:38] Speaker 00:
Because we are supposed to take the evidence in the most favorable plaintiff.

[00:09:42] Speaker 00:
So one interpretation would be,

[00:09:44] Speaker 00:
the other officers really couldn't see.

[00:09:45] Speaker 00:
Another interpretation would be those other officers are lying.

[00:09:49] Speaker 00:
Like how do we use the inference that they actually couldn't see?

[00:09:52] Speaker 02:
The undisputed evidence is that he was quite some distance away and their vision was obstructed by the cold temperature combined with the discharge of the firearm.

[00:10:04] Speaker 03:
That, and in drawing that inference, I mean, are you basing that on the video?

[00:10:09] Speaker 03:
I mean, is that what you want us to rely on?

[00:10:12] Speaker 02:
I'm basing it on the testimony of the officers at the time.

[00:10:16] Speaker 02:
And that, I have a site, I can tell you in the record where that is, Your Honor, give me a moment to get there, at 213.

[00:10:24] Speaker 02:
And the excerpt of the record at 213, there's direct testimony about the smoke, the obstruction, the inability to see Mr. Eyre clearly under those circumstances.

[00:10:34] Speaker 02:
and so that there may very well be.

[00:10:36] Speaker 02:
If one officer sees that their vision is not obstructed, they can clearly see that Mr. Ira is on the ground, that he's no longer presenting himself as a threat.

[00:10:48] Speaker 02:
That does not mean that another officer has that same vision.

[00:10:51] Speaker 02:
under these circumstances.

[00:10:52] Speaker 03:
Can you go back to your very first answer to the question that I asked was to note that this theory of, you know, that they should have stopped shooting was not presented below.

[00:11:05] Speaker 03:
Do you think it's forfeited?

[00:11:07] Speaker 02:
Certainly, I think it's waived on appeal whenever you never raised it below.

[00:11:12] Speaker 03:
What about the rule that we can affirm on any grounds supported by the record?

[00:11:19] Speaker 03:
I mean, this would be

[00:11:20] Speaker 03:
Do you think that applies here?

[00:11:21] Speaker 03:
We'd be, I guess, affirming in part.

[00:11:25] Speaker 02:
Well, it would be affirming on something that the record was never fully developed on, because it was never argued, and the parties never had a chance to even really focus on this evidence.

[00:11:33] Speaker 02:
So you'd be making a decision based on an incomplete record, based on an argument that was never presented below, and that the defense was never given an opportunity to address in any way.

[00:11:44] Speaker 03:
And how should they have, how should the plaintiff have presented it below, I mean, procedurally?

[00:11:50] Speaker 02:
in in their opposition the most for summary judgment they should have said we believe there's a fact question here because uh... there's some conflicting testimony i mean i would agree it's conflicting i think it's just different points in time where people are talking about different observations that they make

[00:12:06] Speaker 02:
and said, we believe that raises a fact question, and we could have been able to respond to that.

[00:12:13] Speaker 00:
If you had had that opportunity, are you saying you would have presented more facts?

[00:12:18] Speaker 00:
Because I think the record is the record.

[00:12:20] Speaker 00:
We have these depositions already.

[00:12:21] Speaker 00:
Are you saying that you would have submitted more factual testimony, or you would have just made an argument that you could make now?

[00:12:27] Speaker 02:
I think we could have been both.

[00:12:29] Speaker 02:
I don't want to go back and it didn't happen and so it's a hypothetical.

[00:12:33] Speaker 00:
I think it matters though because if all it is is argument you could submit a brief tomorrow.

[00:12:37] Speaker 00:
Is there something that you think factually you should have been able to do in the district court that you can't do now?

[00:12:48] Speaker 02:
you're right i have to go back you know i i i don't know what i can answer the question to kind of go back in time and say what would we have done different we've been presented with an argument that we weren't uh... i think we certainly could have more fully developed the record on it could have been submitted more briefing and said hey here's the issues highlighted the differences in the ability of people to see perceive what was going on at the time and argue to this report that there's no inconsistency here what there is is people having a different opportunity to observe what is taking place

[00:13:18] Speaker 04:
Council, I wanna follow up on these questions.

[00:13:21] Speaker 04:
So I've got the same timeline that Judge Miller referred to.

[00:13:25] Speaker 04:
It's about 18, 19 seconds, depending on how you calculate it.

[00:13:31] Speaker 04:
As I watched the video, I saw four, sort of four separate series of shots.

[00:13:39] Speaker 04:
So on the first one, shots are fired, and apparently by five officers.

[00:13:44] Speaker 04:
Okay.

[00:13:45] Speaker 04:
The second shots are fired about 10 seconds later.

[00:13:50] Speaker 04:
And do we know who those officers were or how many people shot?

[00:13:55] Speaker 04:
I don't think the record is perfectly clear on that, no, Your Honor.

[00:13:58] Speaker 04:
Okay.

[00:13:59] Speaker 04:
Then there's a shot fired about four seconds later by one officer.

[00:14:04] Speaker 04:
Do we know who that officer was?

[00:14:07] Speaker 04:
I'm not sure that the record establishes that either.

[00:14:10] Speaker 04:
The last shot fired 18 seconds later appears to be a single shot.

[00:14:13] Speaker 04:
Do we know who that officer was?

[00:14:16] Speaker 02:
I don't believe the record establishes that either, Your Honor, directly.

[00:14:21] Speaker 02:
I want to emphasize, move on to one other issue here before I run out of, totally out of time.

[00:14:26] Speaker 02:
There's no, the district court's obligation, this court's obligation is to establish whether there's clearly, to evaluate whether there's clearly established law that prohibits what the officers did.

[00:14:36] Speaker 02:
In this case, what the district court did is the district court said that, well, the facts of this case are we have an individual who's armed, intoxicated, and suicidal and heading to his ex-girlfriend's house.

[00:14:49] Speaker 02:
And yet the district court faults the officer in this case for trying to keep that Mr. Eyre within their sight so he doesn't slip off into the darkness and create a threat to other people.

[00:14:59] Speaker 02:
And then cites this duty to warn that we've created this situation that demanded use of force by our own negligence, our own reckless conduct.

[00:15:11] Speaker 02:
And cites three cases that are factually inapplicable in any way, shape, or form to the facts of this case.

[00:15:16] Speaker 02:
Nehad versus Browder, Lamb versus City of San Jose.

[00:15:19] Speaker 00:
I'm sorry, I think I should interrupt you because we have read what the district court said and you're out of time.

[00:15:22] Speaker 00:
If you want a minute for rebuttal, I think probably you should stop and come back after.

[00:15:40] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:15:43] Speaker 01:
Colin Reeves for Appellee Kyle Eyre.

[00:15:46] Speaker 01:
The officers in this case violated clearly established law when they shot and killed Cody Eyre in two separate flurries of gunfire.

[00:15:54] Speaker 01:
The district court properly denied the officers qualified immunity.

[00:15:58] Speaker 01:
This court should affirm.

[00:15:59] Speaker 01:
It can do so in any of three ways.

[00:16:01] Speaker 00:
First- Sorry, can I just ask, when you say two, we were counting four, I think, so where do you start the second one?

[00:16:08] Speaker 01:
It is, I think it's, yes, we've delineated into two separate sets of shots.

[00:16:20] Speaker 01:
I think it would be sets two through four under Judge Bybee's analysis.

[00:16:26] Speaker 01:
And I think it would be correct under this court's case law and other, say, the Roquet case from the Fifth Circuit that we cite.

[00:16:34] Speaker 01:
that it would be appropriate to actually look at it as four sets of shots, because there are those breaks.

[00:16:40] Speaker 04:
And do you know who fired in what you're calling the second set of shots, sets two through four?

[00:16:47] Speaker 04:
Do we know who those officers were?

[00:16:49] Speaker 01:
So we know that all of the officers fired other than Nathaniel Johnson.

[00:16:54] Speaker 01:
Right.

[00:16:55] Speaker 04:
Certainly on the first on the first volley.

[00:16:57] Speaker 01:
The first and this and the second volley.

[00:16:59] Speaker 01:
So we don't know.

[00:17:01] Speaker 01:
So Nathaniel Johnson tried to shoot both times and we know he didn't.

[00:17:05] Speaker 01:
And the officers also say they all say that they shot during both volleys.

[00:17:09] Speaker 04:
You can very distinctly hear at

[00:17:11] Speaker 04:
1357 in the tape and 1401 in the video I think this is probably the sweet video that's that's those are a single shot both times do we know who that officer was we don't my

[00:17:27] Speaker 01:
My thought is that, and what I think the jury couldn't infer, that at least for one of them and maybe both, it distinctly sounds like a shotgun that's being shot.

[00:17:38] Speaker 01:
And Alondre Johnson was the only one, was the only officer who had a shotgun.

[00:17:43] Speaker 01:
I don't recall if that was the third or the very last, third or the fourth.

[00:17:47] Speaker 03:
But you didn't explain any of this.

[00:17:51] Speaker 03:
By this, I mean the idea that we could sort of disaggregate the shooting and break it down into separate volleys and think that the later volleys present distinct legal issues from the initial one.

[00:18:04] Speaker 03:
You didn't present any of this to the district court, did you?

[00:18:07] Speaker 01:
We did.

[00:18:09] Speaker 01:
The appellants are just simply wrong about that.

[00:18:13] Speaker 01:
So on docket 83 is the heir's opposition.

[00:18:19] Speaker 01:
On page three in the facts, we set out distinctly that there were two separate sets of shots.

[00:18:24] Speaker 01:
And then on page 11 of the opposition, in the argument section, we argued, let me find that here.

[00:18:35] Speaker 01:
a separate paragraph that's explicitly about the second set of shots.

[00:18:41] Speaker 01:
It says, there is no evidence that the second round of shots were a reasonable use of force.

[00:18:48] Speaker 01:
And then it proceeds to explain for the exact same kind of reasons we're seeing here.

[00:18:53] Speaker 01:
We've certainly put more meat on the bones.

[00:18:55] Speaker 03:
I'm sorry, this is your opposition to the motion for summary judgment.

[00:18:58] Speaker 01:
Yes.

[00:18:59] Speaker 03:
Page 11.

[00:19:00] Speaker 01:
Yes, docket 83.

[00:19:02] Speaker 01:
We didn't put it into the appellate record because we weren't anticipating that there would be any kind of waiver argument here.

[00:19:10] Speaker 01:
So it's not part of the supplemental excerpts of record or the excerpts of record.

[00:19:14] Speaker 03:
OK, I'm looking at, I have here your opposition to the summary judgment that the docket 50 was a later round.

[00:19:22] Speaker 01:
Yes.

[00:19:22] Speaker 01:
So as a procedural matter, this case, kind of like the other ones that we've been hearing about, was affected by COVID.

[00:19:31] Speaker 01:
And so there was sort of a lag in discovery.

[00:19:34] Speaker 01:
The officers made an initial summary judgment motion while discovery was pending.

[00:19:38] Speaker 01:
We then made a response, and that was docket 50.

[00:19:42] Speaker 01:
And we said, OK, we need a continuance.

[00:19:44] Speaker 01:
And then so there was a separate, the district court agreed with that, entered that.

[00:19:49] Speaker 01:
And so there was a later summary judgment motion.

[00:19:52] Speaker 01:
I think it was around docket 75.

[00:19:55] Speaker 04:
Sounds like you've mentioned the second set of shots.

[00:19:57] Speaker 04:
Did you cite cases?

[00:19:58] Speaker 04:
Did you argue that this was excessive force and show us how this was clearly established law?

[00:20:04] Speaker 04:
I mean, I'm just, you know, what did you say about this?

[00:20:07] Speaker 01:
We did not cite specific cases about that.

[00:20:12] Speaker 01:
I mean, the issue was clearly presented to the district court.

[00:20:15] Speaker 01:
The district court just did not have to reach it because the district court held on alternative grounds or denied qualified immunity.

[00:20:21] Speaker 04:
And are you defending the district court's decision on the grounds on which you decided the case?

[00:20:24] Speaker 01:
Yes.

[00:20:27] Speaker 04:
On a failure to warn and an officer created situation.

[00:20:29] Speaker 01:
Yes.

[00:20:30] Speaker 01:
So that would be an alternative way that this—that the court could resolve or affirm for the district court as well.

[00:20:37] Speaker 04:
Affirm in favor of error would be on the same kind of theory that the district court— So if you were—if you were—let's suppose that we did not think that the district court's decision could be sustained on the grounds on which it was actually decided.

[00:20:53] Speaker 04:
And so you'd like to press this alternate, this alternate theory.

[00:20:56] Speaker 04:
What case should the officers have read that would have told them that they clearly could not fire shots under these circumstances?

[00:21:03] Speaker 01:
Well, the officers themselves conceded that it was clearly established.

[00:21:07] Speaker 01:
This court's decision at Zion clearly established— Which involved a knife.

[00:21:12] Speaker 01:
It did.

[00:21:12] Speaker 01:
The court there didn't, it said that what it was saying was especially true about knives, but it didn't say it wasn't true about firearms.

[00:21:23] Speaker 01:
There's a sentence about that.

[00:21:26] Speaker 04:
Zion was really a brutal, brutal case where an officer was way overboard, and it really was egregious.

[00:21:35] Speaker 04:
I'm not sure what reading Zion would have told these officers.

[00:21:38] Speaker 01:
Well, I think in no uncertain terms, the court held that when someone has been taken to the ground and they're incapacitated, or at least a jury could find that they've been incapacitated, and there the officers argued that he was still moving and that he had access to the knife, that

[00:21:58] Speaker 01:
Officers would stop and reassess.

[00:22:00] Speaker 01:
They would hold their fire unless and until they knew that that person was trying to re-engage or posed a threat or was a flight risk.

[00:22:12] Speaker 03:
And what about the state of Fernandez?

[00:22:15] Speaker 03:
There we said that Zion did not establish a clear rule on this.

[00:22:21] Speaker 03:
We described Zion as having described the rule as murky, I think, and said that there wasn't a case clearly establishing when you have to stop shooting.

[00:22:31] Speaker 01:
Well, that's not how I understand Hernandez.

[00:22:33] Speaker 01:
It said that under the facts in Hernandez, the law was not clearly established.

[00:22:37] Speaker 01:
And it took three facts in particular that it found to be at issue in Zion as being not at issue, in essence, in Hernandez.

[00:22:50] Speaker 01:
Essentially, they were disputed in Hernandez, undisputed in the officer's favor.

[00:22:55] Speaker 01:
Excuse me.

[00:22:55] Speaker 01:
disputed in Zion, undisputed for the officers in Hernandez.

[00:23:01] Speaker 01:
And those three facts were that whether Hernandez was trying to get up and the video showed that he was trying to stand.

[00:23:09] Speaker 01:
The second was whether he had the weapon in his hand and he unquestionably did.

[00:23:14] Speaker 01:
They found him with the weapon in his hand.

[00:23:16] Speaker 01:
And then the last one was whether the officers believed that he still had the weapon in his hand.

[00:23:22] Speaker 01:
And all three of those things cut in favor of air in this case.

[00:23:26] Speaker 01:
Cody was not trying to get up and there's testimony to that effect and the video shows it.

[00:23:31] Speaker 01:
I mean, the video is obviously not that clear.

[00:23:33] Speaker 03:
Yeah, so I mean, I was gonna ask, I mean, I take it, you know, under Scott Against Terrorists, we can look at the video, right?

[00:23:39] Speaker 01:
Well, sure, but it has to blatantly contradict, right?

[00:23:44] Speaker 01:
In order to basically take that as sort of the...

[00:23:47] Speaker 03:
But your friend on the other side made the point, which seems to be confirmed by my, at least my view of the video, that once the shooting starts, because of the smoke, or maybe, I don't know if it's smoke or condensation, from the guns, you can't see very much anymore.

[00:24:10] Speaker 01:
Sure.

[00:24:10] Speaker 01:
So I think that's true from the angles of the two officers that have the body cams.

[00:24:18] Speaker 01:
And they're over there on the left.

[00:24:20] Speaker 01:
And Tyler Larimer was one of the ones who had a body camera.

[00:24:24] Speaker 01:
And he said that he couldn't really see.

[00:24:26] Speaker 01:
And so he just made his best guess once he started shooting the second one.

[00:24:30] Speaker 01:
Other officers to the right.

[00:24:31] Speaker 01:
didn't say anything like that.

[00:24:33] Speaker 01:
And we can look at their testimony is that they didn't say, we didn't know where he was.

[00:24:37] Speaker 01:
They said specifically, they made specific statements about exactly where he was.

[00:24:42] Speaker 01:
Christine Joslin says, he's down on the ground.

[00:24:44] Speaker 01:
All I saw was a pile of clothes.

[00:24:47] Speaker 01:
And then I saw him roll over.

[00:24:49] Speaker 01:
She says she saw him.

[00:24:51] Speaker 01:
Same thing with Alondra Johnson.

[00:24:52] Speaker 01:
He says he goes down to the ground and was moving.

[00:24:57] Speaker 01:
But he just shoots simply because he's moving.

[00:24:59] Speaker 01:
He never sees him with the gun, unlike in Hernandez.

[00:25:04] Speaker 01:
And here, of course, he was found.

[00:25:05] Speaker 04:
Jocelyn has asked, he fell to the ground, was no longer a threat.

[00:25:08] Speaker 04:
then why did you fire again?

[00:25:10] Speaker 04:
Because he rolled over, and the gun was pointed at us again, and I felt that he might shoot at us again.

[00:25:15] Speaker 04:
I mean, that's pretty straightforward.

[00:25:18] Speaker 04:
I thought he might be setting up for a second try.

[00:25:21] Speaker 01:
Sure, and that's her testimony.

[00:25:22] Speaker 01:
But a jury, of course, would not need to credit it.

[00:25:24] Speaker 01:
I mean, there are five other officers here who all said diametrically opposed things.

[00:25:29] Speaker 01:
We have two officers who said he was still standing.

[00:25:32] Speaker 01:
Oh, actually three officers said he was still standing.

[00:25:35] Speaker 01:
Three said he was still down.

[00:25:36] Speaker 01:
One of those officers said both things.

[00:25:39] Speaker 01:
He said during the events, he said, Cody is, he says shots fired, suspect is down.

[00:25:47] Speaker 01:
And then later, days later, he says in no uncertain terms, he does not say, oh, I couldn't see.

[00:25:53] Speaker 01:
He says he was still standing in the same place.

[00:25:57] Speaker 01:
And then later he moved down.

[00:25:59] Speaker 01:
So a jury, of course, could look at that and look at the video evidence and the physical evidence and simply not find those to be credible.

[00:26:07] Speaker 01:
I mean, that is what this court has held in other cases, like Newmaker and CV, Longoria, when there's inconsistent police testimony, especially in a fatal shooting case.

[00:26:18] Speaker 04:
Let's suppose that I thought that there was just sort of one volley.

[00:26:22] Speaker 04:
I thought it was just really sort of one continuous volley.

[00:26:25] Speaker 04:
There were a lot of shots fired here.

[00:26:28] Speaker 04:
And that's not unusual in situations like this.

[00:26:33] Speaker 04:
If I thought it was just one long set of shots, wouldn't there always be a question of fact if the plaintiffs came in and said, well, they fired 50 shots, and they really only needed to fire the first 20?

[00:26:49] Speaker 04:
And after that, he was down and anything after that was excessive force.

[00:26:53] Speaker 04:
Wouldn't that make all of these kinds of officer shooting questions turn into questions of a fact in which there would never be qualified immunity?

[00:27:02] Speaker 01:
No.

[00:27:02] Speaker 01:
So two points in response.

[00:27:03] Speaker 01:
One is that in Plumhoff, the Supreme Court said, they sort of encountered the same argument.

[00:27:09] Speaker 01:
Well, it wasn't excessive to just shoot a whole bunch of shots, but they did say that it would be, or they certainly suggest that it would potentially become excessive if the victim was down on the ground, had given himself up, and a jury could find that here.

[00:27:29] Speaker 01:
And also I would point out in Hernandez.

[00:27:31] Speaker 04:
But if all the plaintiff has to do,

[00:27:34] Speaker 04:
is to say he was down on the ground after the first 25 shots, and so the second half of this one volley was unnecessary and therefore excessive.

[00:27:47] Speaker 04:
It would turn all of these questions into questions of fact.

[00:27:50] Speaker 01:
I don't think that would necessarily follow.

[00:27:54] Speaker 01:
And I think we know that in part from Hernandez.

[00:27:56] Speaker 01:
In Hernandez, it says one of the important parts is that based on Zion, there was a break there of two seconds.

[00:28:04] Speaker 01:
There were three sets of two shots.

[00:28:06] Speaker 01:
The second set of shots was, or there was a break of two seconds between one and a break of one second before the last one.

[00:28:13] Speaker 01:
And it just records, or excuse me, the Hernandez panel said that was sufficient to make it a jury question in that case.

[00:28:20] Speaker 01:
Well, we have even a longer set of time.

[00:28:22] Speaker 03:
But we also said there was no case that clearly said that.

[00:28:25] Speaker 01:
No, well, no, that was, so that was, that's not what I understand the court has held.

[00:28:31] Speaker 01:
So that was enough for a jury, enough for a question for this to get to the jury on the constitutional, the underlying constitutional violation.

[00:28:40] Speaker 01:
The court held that under the facts of that case,

[00:28:43] Speaker 01:
that where Hernandez was still trying to get up, still had the weapon in his hand, and the officers thought he still had the weapon in his hand, that Zion had not clearly established it.

[00:28:55] Speaker 01:
But that's not what this case is.

[00:28:56] Speaker 01:
This case, we know he didn't have the gun in his hand.

[00:29:00] Speaker 01:
The video and other officers, no officers say he's trying to get up.

[00:29:04] Speaker 01:
And the officers didn't, some officers did not even think he had the gun.

[00:29:09] Speaker 01:
They didn't see him with the gun once he was down on the ground.

[00:29:11] Speaker 01:
So this case is far more like Zion,

[00:29:13] Speaker 01:
than Hernandez, in which case it would then fall.

[00:29:16] Speaker 04:
But this case is so unlike Zion in so many other ways.

[00:29:20] Speaker 04:
Hernandez can't be the clearly established law because it post-dates this case.

[00:29:27] Speaker 01:
That's true, and we're not relying.

[00:29:29] Speaker 04:
But it may be useful on the question of qualified immunity.

[00:29:32] Speaker 04:
But if Zion is the best case that you've got,

[00:29:34] Speaker 04:
that this is so different on its facts from Zion.

[00:29:38] Speaker 04:
Again, you had a knife, you have an officer who is kicking a suspect in the head after he's already shot him.

[00:29:45] Speaker 01:
Well, the kicking was a separate element of that case.

[00:29:50] Speaker 01:
It wouldn't just be Zion, though.

[00:29:51] Speaker 01:
I mean, the qualified or the clearly established analysis is not just whether this court or the Supreme Court has issued binding case law, but you look at the general consensus of case law.

[00:30:03] Speaker 01:
And we can see that from what the Fifth Circuit has done and what other courts have been doing for decades is that when someone has been brought to the ground and they're incapacitated, officers must stop and reassess the situation.

[00:30:16] Speaker 01:
That's exactly what the officers should have done here.

[00:30:19] Speaker 01:
They knew that.

[00:30:19] Speaker 01:
I mean, there really is no question that the law was clearly established.

[00:30:23] Speaker 01:
And I would just point the court to two parts of the record that show that the officers knew that.

[00:30:29] Speaker 01:
On page 231,

[00:30:31] Speaker 01:
Trooper Thomas explains why he stopped the first time.

[00:30:35] Speaker 01:
And it's exactly the kind of thing that this court was talking about in Zion.

[00:30:38] Speaker 01:
He says, I stopped to reassess the situation.

[00:30:41] Speaker 01:
Page 300, Larimer says the same thing.

[00:30:43] Speaker 01:
I stopped to reassess the situation.

[00:30:46] Speaker 01:
The officers knew the rule here.

[00:30:47] Speaker 01:
And that's essentially what qualified immunity is all about.

[00:30:52] Speaker 01:
And then a jury could find that the facts here support a verdict for the plaintiff.

[00:31:01] Speaker 00:
What is the best testimony you think that shows that after the first round, he was incapacitated and no longer a threat?

[00:31:11] Speaker 01:
Well, I think 278, the testimony that you cited from Trooper Joslin is

[00:31:19] Speaker 00:
But she does go on to say that then he rolled over and pointed the gun at us again.

[00:31:22] Speaker 00:
So you want us to credit part of it, but not the other part?

[00:31:25] Speaker 00:
Or what do we do with that?

[00:31:26] Speaker 01:
So I think, so that is certainly, I think what we know is that a jury could find that he, at some point, ceased to be a threat.

[00:31:35] Speaker 01:
And then it could credit him saying, well, based on what that testimony is, coupled with the video evidence, coupled with the physical evidence that he's found face down with a bullet wound in the back of his head,

[00:31:46] Speaker 01:
that he ceased to be a threat.

[00:31:50] Speaker 03:
But that's true.

[00:31:51] Speaker 03:
I mean, this is I think the point Judge Bybee was making.

[00:31:54] Speaker 03:
In every fatal shooting, they fire N shots and the result is that the person is dead, right?

[00:32:03] Speaker 03:
So you could come along and say, well, really it only should have required N minus one shots and therefore though the last one was excessive.

[00:32:12] Speaker 01:
I think that's not what this court's case law or case law has said for decades, is that when there is a break in the shooting, officers need to justify separate sets of shots.

[00:32:28] Speaker 01:
And if there is no break, and if they can show that the threat continued, then they do get to keep on shooting.

[00:32:36] Speaker 01:
There's no question about that.

[00:32:37] Speaker 00:
But so would we be, I mean, would we be incentivizing officers to not ever break if we agree with you here?

[00:32:44] Speaker 00:
It seems like it's a little bit odd to say like because they paused I mean it seems like they paused at least some of them are saying then he was a threat again I'm just trying to figure out it sounds like what you're saying is if they just hadn't paused they would be fine but that's a weird rule isn't it?

[00:33:00] Speaker 01:
Well, so I don't understand the case law to say that only if, say, there's been a pause, then that they need to justify later sets of shots.

[00:33:13] Speaker 01:
The rule has always been that each use of force needs to be justified.

[00:33:18] Speaker 01:
And if someone ceases to become

[00:33:21] Speaker 01:
ceases is no longer an immediate threat, officers need to pause and reconsider.

[00:33:27] Speaker 01:
So the rule is already there that they do need to take a pause.

[00:33:32] Speaker 01:
And so.

[00:33:33] Speaker 04:
As I recall, your theory is that the fatal shot was likely one to the head.

[00:33:39] Speaker 04:
Is that correct?

[00:33:40] Speaker 01:
Yes.

[00:33:41] Speaker 04:
Is that a shotgun shot?

[00:33:42] Speaker 04:
Or was that a rifle or a handgun?

[00:33:44] Speaker 01:
That's not in the record.

[00:33:45] Speaker 01:
I'm not aware.

[00:33:46] Speaker 04:
OK.

[00:33:46] Speaker 04:
Because you told me that you thought that the officer who fired the third and fourth volleys, which were single shots, was probably a shotgun.

[00:33:53] Speaker 01:
I'm not sure if it was both of those shots.

[00:33:55] Speaker 01:
It sounds, as I hear it, and I'm no expert when it comes to

[00:34:00] Speaker 01:
I'm no expert.

[00:34:02] Speaker 04:
I wouldn't have had any idea that that would happen.

[00:34:05] Speaker 01:
But it sounds like there's a recoil from a shotgun for at least one of those shots.

[00:34:09] Speaker 01:
I'm not sure which of the two.

[00:34:10] Speaker 00:
I don't recall.

[00:34:14] Speaker 00:
And if we thought that the just hypothetical, I don't know if this is possible, but if we were to decide that the problem here was just those two final shots, what we're calling the third and the fourth, is there evidence that those shots hit him or do we have any idea causation wise how much those shots mattered?

[00:34:32] Speaker 01:
That's not in the record at this point.

[00:34:35] Speaker 01:
I don't know.

[00:34:36] Speaker 04:
How many shots do we think were fired total?

[00:34:39] Speaker 01:
We I think it was

[00:34:43] Speaker 01:
In furring, based on what they've all said, I think it was in the ballpark of 60 or so.

[00:34:50] Speaker 01:
Okay.

[00:34:50] Speaker 01:
As one officer shot him.

[00:34:51] Speaker 01:
How many shots hit him?

[00:34:53] Speaker 01:
It was, I think it was between 10 and 20.

[00:34:58] Speaker 01:
And I would just also note that, so two things, I think there'd be two ways that the court could issue a pretty limited order here, affirming and remanding is that, one is that, so the second set of shots was put in front of the district court.

[00:35:15] Speaker 01:
The district court did not reach it because it did not need to.

[00:35:18] Speaker 01:
It's obviously a heavily fact intensive issue.

[00:35:21] Speaker 01:
It would make a lot of sense to send it back to the district court

[00:35:24] Speaker 01:
to review that in the first instance rather than this court to do so.

[00:35:28] Speaker 01:
And the second is the officers have never responded to the second set of shots, not even in their reply review.

[00:35:35] Speaker 01:
So arguably, I think it's fair to say that the issue of the clearly established aspect of the second set of shots is not actually properly before the court, because the officers have not pressed that point.

[00:35:47] Speaker 01:
They've relied

[00:35:49] Speaker 01:
pretty much exclusively.

[00:35:50] Speaker 01:
They've lumped them together as a single set of shots and then relied on the immediacy of the threat before the first set of shots.

[00:36:00] Speaker 01:
And they've never said anything about that the law was not clearly established on the second set of shots.

[00:36:08] Speaker 01:
Council conceded that officers need to actually stop and reconsider things once there's been a pause.

[00:36:16] Speaker 01:
And that the law is clearly established on that.

[00:36:19] Speaker 01:
So I think there's two ways in which the court could affirm sort of

[00:36:24] Speaker 01:
on pretty limited grounds.

[00:36:26] Speaker 01:
One would be to just send it back to the district court to look at it in the first instance.

[00:36:30] Speaker 01:
And two is that the officers have just not presented this issue on the second set of shots to the court.

[00:36:36] Speaker 01:
So they've essentially forfeited that issue.

[00:36:39] Speaker 04:
Well, it's not too surprising that they wouldn't raise this because it's not the grounds on which the district court decided the case.

[00:36:45] Speaker 01:
Sure, but they didn't argue it in their reply brief in the district court, nor did they argue it in the reply brief here.

[00:36:52] Speaker 01:
So when we put it in front of them.

[00:36:58] Speaker 01:
There are no further questions.

[00:36:59] Speaker 00:
Thank you very much for taking you over your time.

[00:37:01] Speaker 00:
Let's put two minutes on the clock for rebuttal, please.

[00:37:06] Speaker 02:
Thank you.

[00:37:07] Speaker 02:
I just want to make sure that I kind of fill in the gaps on the record when you asked me questions earlier.

[00:37:11] Speaker 02:
You cited some of it on this issue about why there was a first, second volley, however many volleys you want to talk about it.

[00:37:18] Speaker 02:
It's in the record at 277, which is the one that your honor

[00:37:22] Speaker 02:
quoted about he then rolled over and pointed the gun at us and I probably fired another three thoughts and that's Officer Christine Jocelyn in the record at 277.

[00:37:34] Speaker 02:
Then in the record at 278 it was directly asked about this pause.

[00:37:40] Speaker 02:
She was asked why did you shoot the first time because he pointed the gun at us and then

[00:37:45] Speaker 02:
and then okay you said you fired that three to four shots what made you stop the first time her response he fell to the ground it was no longer a threat in the follow-up questions will why did you shoot again and the answer is at two seventy eight because you rolled over and the gun was pointed at us again and i felt that he might shoot us again are are might he might shoot us is that initially i don't recall him ever shooting in addition officer thomas testified in the record two thirty

[00:38:12] Speaker 02:
After the first two rounds, he didn't go down.

[00:38:15] Speaker 02:
He was still moving.

[00:38:15] Speaker 02:
It looks like he turned.

[00:38:16] Speaker 02:
He might have turned a little bit to his right and was still moving.

[00:38:18] Speaker 02:
So then I fired again.

[00:38:20] Speaker 02:
And then he's asked, why did you fire again?

[00:38:22] Speaker 02:
He still had the weapon in his hand and he was still moving.

[00:38:26] Speaker 02:
So I think that is where the record talks about why that occurred in the way that it did.

[00:38:31] Speaker 02:
As far as the idea that this was raised below on page 11 of 25 of their brief, what they actually say in there is,

[00:38:39] Speaker 02:
they say there was no evidence the second round of shots were reasonable use of force because they should have warned him to stop moving uh... before they shot again so it was kind of tied to that somehow an idea that we should have warned him to stop moving before we shot him in that instance lastly i just want to make sure i point out to the court the city of talakwa oklahoma versus bond case i think it is the most applicable case to this case it's united states supreme court case

[00:39:06] Speaker 02:
involved very similar circumstances absolutely debunks this you create the threat issue in that case they said not only do you have to have clearly established law on the law but on similar facts somewhat similar facts where you could extrapolate that these facts mean you should not be doing what you're doing and that case said and and rebuts the the idea that alan versus um... muskogee is somehow precedent for anything related to what happened in this case

[00:39:36] Speaker 02:
unless the court has any other questions, I'm out of time.

[00:39:38] Speaker 02:
Thank you.

[00:39:39] Speaker 00:
Thank you very much.

[00:39:40] Speaker 00:
Thank you both.

[00:39:42] Speaker 00:
This case is submitted.

[00:39:43] Speaker 00:
We'll call the last case then.