[00:00:02] Speaker 00:
Good morning, counsel.

[00:00:03] Speaker 03:
Good morning, your honors.

[00:00:05] Speaker 03:
May it please the court, Stephen Renick for Appellant Corporal Ruben Perez.

[00:00:14] Speaker 03:
The district court overruled the summary judgment motion because it found that there were disputed facts that prevented determination on summary judgment.

[00:00:23] Speaker 03:
Our contention, as we've laid out in our briefing, is that based on what is acknowledged to be the undisputed facts,

[00:00:30] Speaker 03:
of Corporal Perez's actions were reasonable under all of the facts and circumstances that were before him at the time that he fired his weapon.

[00:00:41] Speaker 03:
Apologize.

[00:00:43] Speaker 03:
Our basic dispute with district court is that it looked at the facts and circumstances in a very narrow manner.

[00:00:52] Speaker 03:
It essentially looked at what happened from the point from which Jeffrey Monroe began running away from the car

[00:01:01] Speaker 03:
and when the shots were fired.

[00:01:03] Speaker 03:
And our contention is that you cannot look at the situation in this very narrow manner.

[00:01:09] Speaker 03:
You have to look at the entire situation, which unfolded just over a matter of, I'm not even sure what the total time period, but it's of moments, from the moment that Corporal Perez exited his vehicle until the shots occurred.

[00:01:23] Speaker 00:
So Counselor, is it your argument that the District Court did not take into consideration

[00:01:28] Speaker 00:
all of the facts that preceded the shooting?

[00:01:33] Speaker 03:
Certainly not based on the ruling.

[00:01:35] Speaker 03:
Our contention is that the totality of the facts, most of which are beyond question undisputed, lead to the inevitable determination that Corporal Perez's actions were reasonable.

[00:01:48] Speaker 00:
I'm just curious as to why you think the district court didn't consider all the facts.

[00:01:53] Speaker 03:
Some of the comments that the court made, basically the fundamental finding that

[00:01:58] Speaker 03:
It's a question for the jury as to whether or not Mr. Monroe was running towards Corporal Perez or to the driveway.

[00:02:06] Speaker 00:
So why does that infer to you that, why does that imply to you that the district court didn't look at the other facts?

[00:02:15] Speaker 03:
Because the question, as we've contended should be considered, is whether or not Corporal Perez reasonably

[00:02:26] Speaker 03:
was concerned that his safety was at issue.

[00:02:30] Speaker 03:
And whether or not, in fact, Mr. Monroe was running to the driveway isn't really relevant to that question as long as, I'm sorry, Your Honor, as long as Corporal Perez's evaluation of what was happening

[00:02:47] Speaker 03:
was reasonable.

[00:02:48] Speaker 01:
My understanding of your position is that your client arrived, that it's undisputed that the decedent approached abruptly and immediately, walked rapidly towards your client, and there's a sort of inexplicable attack.

[00:02:59] Speaker 01:
Right.

[00:03:00] Speaker 01:
Very tragic, because of course he's suffering a mental health issue.

[00:03:03] Speaker 01:
By the way, I can't see anything in the record that shows that your client knew that.

[00:03:07] Speaker 03:
I'm not aware of anything that would have.

[00:03:09] Speaker 01:
Comes at it.

[00:03:10] Speaker 01:
And then there's this attack with a screwdriver, right?

[00:03:14] Speaker 01:
And I think your client told him to stay back.

[00:03:15] Speaker 01:
He didn't stay back.

[00:03:17] Speaker 01:
I think the district court recognized that there had been that screwdriver attack.

[00:03:21] Speaker 01:
She was clearly concerned about the fact that I think all of the bullet trajectories indicate that he was shot from behind as he was running away.

[00:03:30] Speaker 01:
Maybe the distance was closed at some point or not.

[00:03:32] Speaker 01:
I don't find that particularly important.

[00:03:35] Speaker 01:
I think she's looking at a jury could look at a lot of shots fired at somebody who was running away and they entered his body from behind.

[00:03:43] Speaker 01:
At best, there's one that went through his hand, through the palm of his hand, right?

[00:03:49] Speaker 01:
And then on the 14th Amendment claim, I think that she recognized, or I think the basis of her ruling, to go to Judge Rollinson's point, was that a jury perhaps could find that the shooting was the result of, or in retaliation for, that's my word, the screwdriver attack.

[00:04:07] Speaker 01:
So I don't see that the district court overlooked any part of the record.

[00:04:14] Speaker 03:
Ultimately, whether or not the basis for the district court's ruling really isn't ultimately relevant here.

[00:04:21] Speaker 03:
It's a de novo review by you as to whether or not the undisputed facts don't support that.

[00:04:26] Speaker 03:
But particularly on the 14th Amendment issue, that ultimately flows from the fact that if a jury could reasonably believe that Corporal Perez knew that Mr. Monroe was not coming towards him but was running to the driveway,

[00:04:43] Speaker 03:
They could draw the inference that this was a retaliatory action.

[00:04:48] Speaker 03:
Our argument is that you can't draw, that that assumes that Corporal Perez was aware that he was running to the driveway and not towards him.

[00:04:59] Speaker 01:
Well, the best you've got on that is a one sentence fragment in the deposition where he says, it looks like he was coming towards me for a second.

[00:05:07] Speaker 03:
Well, we also have.

[00:05:08] Speaker 01:
Right?

[00:05:09] Speaker 01:
It's not a lot.

[00:05:11] Speaker 03:
Well, except that.

[00:05:13] Speaker 03:
the evidence that was provided by the plaintiffs themselves from their expert as to the route that Mr. Monroe took when he began running, that he closed from 27 to 22.

[00:05:25] Speaker 01:
Let's say he did look like he was coming back towards the officer.

[00:05:28] Speaker 01:
We don't know where in that trajectory, where in that path the decedent was shot.

[00:05:35] Speaker 01:
But certainly not all nine shots were fired when he

[00:05:37] Speaker 01:
had closed the gap.

[00:05:39] Speaker 01:
At some point, some of those shots were fired while he was running away.

[00:05:42] Speaker 03:
Correct.

[00:05:43] Speaker 03:
But what we do know from the expert's analysis is that the shots began being fired at the 22 foot position.

[00:05:53] Speaker 01:
And they continued.

[00:05:54] Speaker 03:
For three seconds.

[00:05:56] Speaker 01:
Right, really fast.

[00:05:57] Speaker 01:
And I think your position from your brief is that your client had suffered this attack and thought he might pass out.

[00:06:06] Speaker 01:
And he's alone.

[00:06:07] Speaker 01:
He's the only officer there.

[00:06:08] Speaker 01:
Exactly.

[00:06:09] Speaker 01:
And so that he responded the way he responded.

[00:06:11] Speaker 01:
And we know we give a lot of leeway under this doctrine.

[00:06:14] Speaker 01:
So that even if he was wrong, the question is, well, was he unreasonable in continuing to fire?

[00:06:20] Speaker 03:
And that's our position is that, given that this was three seconds,

[00:06:26] Speaker 03:
where if your honor is parsing out the various shots, let's look at the initial.

[00:06:34] Speaker 01:
I'm not suggesting this record allows us to parse out the shots at all.

[00:06:38] Speaker 01:
I think your best shot is that the officer was inexplicably attacked, and that was very upsetting and terrifying.

[00:06:44] Speaker 01:
And he thought he might pass out.

[00:06:45] Speaker 01:
That's his testimony.

[00:06:46] Speaker 01:
I think that's uncontested.

[00:06:47] Speaker 01:
That's what he thought.

[00:06:48] Speaker 01:
He didn't pass out.

[00:06:49] Speaker 01:
I think that's also uncontested.

[00:06:50] Speaker 01:
But that once the decedent started to move, there was at least some indication from plaintiff's diagram that he closed the gap.

[00:07:02] Speaker 01:
He's running diagonal, I think, generally.

[00:07:04] Speaker 01:
But be that as it may, the officer shot, and he shot nine times.

[00:07:09] Speaker 03:
Yes.

[00:07:09] Speaker 03:
But we talked about, in the case law, split-second decisions.

[00:07:13] Speaker 03:
the officer, as you've just described it, was not, this was not somebody who just stepped out of his, you know, police vehicle.

[00:07:20] Speaker 01:
How important is it that he thought he was going to pass out?

[00:07:23] Speaker 03:
I think it's very important.

[00:07:24] Speaker 03:
I think this goes to the second prong of the qualified immunity analysis.

[00:07:32] Speaker 03:
Is there a case essentially directly on point that are close enough that would put

[00:07:38] Speaker 03:
an officer or any officer on notice.

[00:07:40] Speaker 02:
But after, I guess, I think we have suggested that if the officer and decedent have disengaged, there is, the importance of that initial engagement recedes, becomes less material, because we expect the officer to, I get that in this case, because of the attack and maybe, and again,

[00:08:05] Speaker 02:
The corporal might have worried about passing out, but usually we expect the kind of things to reset after that initial engagement and that the decedent still has all the rights they had before that not to have excessive force used.

[00:08:21] Speaker 03:
I think the problem with taking that, excuse me, analysis literally is

[00:08:32] Speaker 03:
How much time has there been for that reset?

[00:08:35] Speaker 03:
This is a continuing.

[00:08:37] Speaker 02:
I mean, there are genuine disputes here, maybe not as to the time in terms of the corporal's awareness, but he was, it's taking the facts most favorable as we must.

[00:08:53] Speaker 02:
He was pulled back by his brother, he was disarmed.

[00:08:58] Speaker 02:
He was behind, off to the side, behind a car.

[00:09:02] Speaker 02:
So this is not a continued melee that's leading to the firing.

[00:09:08] Speaker 03:
Correct.

[00:09:08] Speaker 03:
But you mentioned he was disarmed.

[00:09:10] Speaker 03:
There's no evidence that Corporal Perez was aware of that.

[00:09:13] Speaker 03:
And one of the things that Apolize brought up in their briefing is that a lot of case law talking about you can't, just because there's been a prior attack, you can't

[00:09:27] Speaker 03:
use deadly force when someone is no longer a threat.

[00:09:30] Speaker 03:
But again, if you look at the entirety of this, what was confronting Corporal Perez when Jeffrey Monroe began running the second time was that this was essentially the same scenario that had just happened to him.

[00:09:46] Speaker 03:
The decedent had started running at him.

[00:09:50] Speaker 03:
No weapon was visible.

[00:09:53] Speaker 02:
Why is that not subject to genuine dispute in an issue for trial, whether it was the same?

[00:09:59] Speaker 02:
There's been lots of reconstructions.

[00:10:00] Speaker 02:
There's lots of things for jurors to consider here about whether it was the same.

[00:10:06] Speaker 03:
I'm not aware of anything that disputes the fundamental facts that the decedent

[00:10:13] Speaker 03:
was running, he was closing the distance between himself and Corporal Perez.

[00:10:19] Speaker 02:
Well, again, that's a function of the geometry of anyone who runs on a diagonal tangential to where someone standing is going to first approach and then recede from the person.

[00:10:29] Speaker 03:
It could be going opposite.

[00:10:30] Speaker 03:
In this instant, yes, you're right.

[00:10:33] Speaker 03:
from the perspective of Corporal Perez, he was coming towards him.

[00:10:37] Speaker 01:
Well, he doesn't really say that.

[00:10:38] Speaker 01:
Like I said, your client says it looked like he was coming at for a second.

[00:10:45] Speaker 03:
I mean, again.

[00:10:46] Speaker 01:
And I think the diagram is the way Judge Johnstone indicates.

[00:10:50] Speaker 01:
So to say that it's uncontested seems to me to be a bit of a stretch.

[00:10:54] Speaker 01:
The initial approach, I think he says it was abrupt.

[00:10:56] Speaker 01:
And I think that is uncontested, abrupt.

[00:10:58] Speaker 01:
He walked straight at him, inexplicably.

[00:11:01] Speaker 01:
But the second time around when he went to run, his body just about had to be facing not directly towards the officer unless he was doing a side shuffle.

[00:11:10] Speaker 01:
He would have been facing off at an angle.

[00:11:13] Speaker 03:
Again, the question is reasonableness, not perfection.

[00:11:17] Speaker 03:
That's right.

[00:11:18] Speaker 02:
Whose question is that, though?

[00:11:20] Speaker 02:
Why isn't that the jury's question, given what we have before us?

[00:11:26] Speaker 03:
The essence of qualified immunity is mistakes can happen.

[00:11:36] Speaker 03:
The question is, this particular officer

[00:11:39] Speaker 03:
confronting a situation while not identical, at least bore some semblance to his mind, which was the mind of someone who had just been attacked and injured by a man who may have been armed just like he was armed before with a weapon that was not immediately visible to him.

[00:11:59] Speaker 03:
And it's uncontested that at no time during the attack was Corporal Perez aware of what weapon was being

[00:12:09] Speaker 03:
he makes a split second decision that he was at risk.

[00:12:14] Speaker 03:
That's what qualified immunity is for.

[00:12:16] Speaker 03:
Certainly there is no case that we're aware of, and the ones that were cited by the appellee are not similar enough to provide guidance here.

[00:12:27] Speaker 03:
There's no case that says an injured officer facing this sort of roughly similar situation

[00:12:36] Speaker 03:
must wait until he's positive that he's about to be attacked before he can take action to protect himself.

[00:12:45] Speaker 03:
A jury might find that he was wrong about whether or not the attack was going to happen, but the question is whether within the context of the existing law, it was unreasonable for him in the totality of the facts and circumstances that he was facing to come to that conclusion.

[00:13:04] Speaker 03:
I see you only have two minutes left.

[00:13:06] Speaker 03:
If the court doesn't have questions at this time, I reserve the remainder of my time.

[00:13:09] Speaker 00:
Thank you, counsel.

[00:13:10] Speaker 03:
Thank you.

[00:13:16] Speaker 04:
Good morning, Your Honors.

[00:13:18] Speaker 04:
Kaveh Nawab here.

[00:13:19] Speaker 04:
May it please the Court on behalf of Plaintiff Appellees.

[00:13:22] Speaker 04:
I think this Court and courts throughout this country, all the way to the Supreme Court, have repeatedly held that for an officer to use deadly force, they have to be under imminent harm.

[00:13:32] Speaker 04:
I think the District Court on this matter, on the motion for summary judgment,

[00:13:37] Speaker 04:
issued an exhaustive and detailed order going through the entire record, including circumstantial evidence, including testimony of the witnesses.

[00:13:45] Speaker 04:
And I think the court is correct that the jury needs to decide this case.

[00:13:49] Speaker 04:
There are a number of issues at dispute, material facts, not periphery facts, but material facts.

[00:13:55] Speaker 04:
And I think what the court, and it's part of the record, the defendant here, the officer Perez, or Deputy Perez, had an interview with the DA seven days after the shooting.

[00:14:06] Speaker 04:
That's part of the record here.

[00:14:08] Speaker 04:
And in that DA interview, he had three opportunities to speak to this second attack.

[00:14:15] Speaker 04:
Not one mention of a second attack was made.

[00:14:18] Speaker 04:
And I think the pharaoh scan.

[00:14:19] Speaker 01:
In fear of second attack that I'm going to pass out?

[00:14:21] Speaker 01:
Is that what you're?

[00:14:22] Speaker 04:
Well, I think exactly.

[00:14:23] Speaker 04:
Well, coming toward Mr. Monroy, coming toward the officer a second time, which is what the justification for the use of force is here.

[00:14:32] Speaker 04:
What we do know is that Mr. Monroy did attack the officer.

[00:14:35] Speaker 04:
There was an altercation.

[00:14:37] Speaker 04:
His brother Wilbur Monroy pulled him away 20 feet to the vehicle.

[00:14:42] Speaker 04:
Corporal Perez pulled out his gun.

[00:14:44] Speaker 04:
actually went toward the threat, had enough time to tell Wilbur to go away.

[00:14:48] Speaker 01:
Because he was going to arrest him.

[00:14:50] Speaker 01:
Yes.

[00:14:50] Speaker 01:
But what is it from that point, once the decedent then started to run, what is it you think was left out of the DAA interview?

[00:14:58] Speaker 04:
Well, the second kind of coming toward him, as was stated for a second.

[00:15:02] Speaker 04:
I think the court, you stated that in his deposition, he said maybe for a second he came toward him.

[00:15:07] Speaker 04:
That was never mentioned.

[00:15:08] Speaker 04:
what was said in the D.A.

[00:15:09] Speaker 00:
But it was said at some point, so you're parsing what he said to the D.A.

[00:15:13] Speaker 00:
as opposed to what he said in his deposition.

[00:15:15] Speaker 04:
Yes, and I think this court has on a number of times, actually, in the Lamb case, the city of Bonyos, I believe it is,

[00:15:24] Speaker 04:
In a number of cases, that the officer's credibility and the conflicting statements from the officers, those are things that the jury can take into consideration.

[00:15:30] Speaker 00:
Are those conflicts, though?

[00:15:31] Speaker 00:
The problem I'm having with your argument is that those are too different for her.

[00:15:37] Speaker 00:
And so in a deposition, you're more focused and you go into more details than you would with the DA interview.

[00:15:44] Speaker 00:
So I'm not sure that those would be considered conflicting if there is more detail.

[00:15:49] Speaker 04:
In the second one than in the first one understood your honor and that's accurate I'm in a deposition is a little different than a district attorney's interview But I do think it is telling that this advance toward him right was never stated and said what he did say which is what's what is what the the expert report and the path that's taken that's exactly what he said he said it went to the right of me and I see a driveway and

[00:16:12] Speaker 04:
And I'm shooting.

[00:16:13] Speaker 04:
And what do we do know is that that distance was quite a bit, 22 to 30 feet.

[00:16:17] Speaker 04:
The shots to the back were all back to front.

[00:16:20] Speaker 01:
Did he say in the DA interview that he thought he might pass out?

[00:16:24] Speaker 04:
Um, he may have said that he was, I don't know if he used the exact words of pass out, but I think there's, I think he may have said that he was kind of in this concern that he was, you know, his body was getting hot.

[00:16:35] Speaker 01:
Unless my notes are wrong and I will surely double check.

[00:16:38] Speaker 01:
I think he's something about his face was getting hot or his head was hot and he thought that he might.

[00:16:43] Speaker 04:
That's, that's accurate.

[00:16:44] Speaker 04:
I do think he did say his face was getting hot, but I think what we have to also understand there is that he never went to the ground.

[00:16:51] Speaker 04:
What he did do was he unholstered his gun, he moved toward them.

[00:16:55] Speaker 04:
He issued a command to the brother to get out of the way.

[00:17:01] Speaker 04:
So I think that that's all, but these are all disputed facts that really need to be- At what point did he say to Wilbur,

[00:17:08] Speaker 01:
to keep your eye on me because I think I might.

[00:17:11] Speaker 01:
Don't come any closer, but keep your eye on me.

[00:17:13] Speaker 01:
Where did he say that happened in the sequence?

[00:17:15] Speaker 04:
Oh, that's after the shooting.

[00:17:16] Speaker 04:
That's after the shooting was done.

[00:17:18] Speaker 04:
That's what I thought.

[00:17:18] Speaker 04:
After Mr. Monroy was essentially passed out.

[00:17:21] Speaker 01:
That's what my notes show.

[00:17:22] Speaker 01:
So I originally thought that this whole business about being concerned about passing out was after the shooting.

[00:17:27] Speaker 01:
But it's not.

[00:17:28] Speaker 01:
He's very clear that it was both, I mean, the officer is very clear in his testimony that he thought after being the stabbing incident that he might pass out.

[00:17:38] Speaker 04:
No, the statement to Mr. Menouye stayed back.

[00:17:44] Speaker 04:
To the brother, if I understand correctly.

[00:17:47] Speaker 01:
I don't want to confuse.

[00:17:50] Speaker 01:
When the decedent first approached the officer, he said the officer told him to stay back.

[00:17:54] Speaker 01:
He didn't stay back.

[00:17:54] Speaker 01:
Then there's the stabbing.

[00:17:56] Speaker 01:
Then there's testimony from the officer that he said he thought he felt faint and might pass out before the shooting.

[00:18:02] Speaker 01:
Then there's the shooting, which of course would be also very, I'm sure adrenaline would go sky high.

[00:18:08] Speaker 01:
And I think there's the statement to the brother, to Wilbur,

[00:18:12] Speaker 01:
After the shooting, he said, don't come any closer, but keep your eyes on me, because he thought he might pass out.

[00:18:18] Speaker 04:
That's correct, Your Honor.

[00:18:19] Speaker 04:
It was after the shooting.

[00:18:20] Speaker 04:
After the decedent had already fallen in the driveway, he says that to the brother who's now by the Corolla, you know, over there.

[00:18:27] Speaker 00:
OK.

[00:18:27] Speaker 00:
So we got the sequence.

[00:18:28] Speaker 04:
That is the sequence, Your Honor.

[00:18:30] Speaker 04:
And I think what's what's telling here is that as this court has on numerous occasions and I think as your honor stated that it does reset just because there's a threat at one point doesn't mean that the threat continually goes on what we do know is from the Tamland case from the Hopkins case.

[00:18:47] Speaker 04:
from a number of other cases that just because there's a threat or somebody's armed with a weapon, even a gun in some instances, that doesn't mean that continually throughout the sequence, once that threat dissipates, that the officers have carte blanche to just use excessive force.

[00:19:02] Speaker 04:
And what we do know here is that he was at a distance.

[00:19:04] Speaker 04:
He was shot a number of times in the back when there wasn't any imminent harm to the officer.

[00:19:08] Speaker 01:
So what about opposing counsels?

[00:19:09] Speaker 01:
I think everything you said is correct.

[00:19:11] Speaker 01:
But I can't think of a case, and I can't find one, where the officer had been injured and thought he might pass out.

[00:19:16] Speaker 04:
And he's alone.

[00:19:17] Speaker 01:
That's the other thing.

[00:19:18] Speaker 01:
He's alone.

[00:19:18] Speaker 01:
So is there one, first of all, that we missed?

[00:19:20] Speaker 04:
Well, I think the Hopkins case, which is actually a couple decades in, the officer in that case, and it's from 1992, was hit a number of times by the baton.

[00:19:33] Speaker 04:
This is Hopkins versus Andaya from 1992, decided by this court.

[00:19:38] Speaker 04:
In that case, the individual, the suspect,

[00:19:41] Speaker 04:
grabbed the officer's weapons, the baton, I believe, hit him multiple times.

[00:19:46] Speaker 04:
The officer said he was injured.

[00:19:48] Speaker 04:
as a result of that, the force occurred.

[00:19:50] Speaker 04:
So I think that is a telling case.

[00:19:52] Speaker 04:
What happened in that case, the jury, there was disputes as to the extent of the injury.

[00:19:56] Speaker 04:
In the Ninth Circuit, this court said, well, there's disputes here if the attack was the way the officer described it.

[00:20:02] Speaker 01:
Well, there's lots of cases like that where there's sort of mutual combat.

[00:20:05] Speaker 01:
And is the force excessive given the force that there's?

[00:20:08] Speaker 01:
We certainly have case law like that.

[00:20:10] Speaker 01:
But I'm talking about case law where the officer said,

[00:20:13] Speaker 01:
because of the injury, he thought he was going to lose consciousness.

[00:20:17] Speaker 01:
And hence, he's shooting in order to make sure that that threat is knocked out in case he loses consciousness.

[00:20:27] Speaker 04:
I don't know if there's an exact case where the officer said, I'm going to lose consciousness, and I used force because I thought I was going to lose consciousness.

[00:20:36] Speaker 04:
But I think that the Hopkins case is informative because this was a serious attack, at least from the officer's perspective with the baton.

[00:20:43] Speaker 04:
And I think Tam Lam, or Tan Lam, my apologies, the city of Banos case, Los Banos, he was in that case, the officer was stabbed with the scissors.

[00:20:54] Speaker 04:
He retreated.

[00:20:55] Speaker 04:
The individual, there was no dispute in that case, came toward the officer during the second volley of shots.

[00:21:01] Speaker 04:
And so in that case, it went to a jury, which is essentially what should happen here.

[00:21:05] Speaker 04:
This case, there's a number of disputed facts.

[00:21:08] Speaker 04:
There's an ample amount of evidence for the jury to consider in this matter.

[00:21:12] Speaker 04:
And that's why this case is not properly before the court of appeals, because it needs to go back to the jury.

[00:21:19] Speaker 02:
Well, I guess the problem is the qualified immunity posture here.

[00:21:24] Speaker 02:
And as Judge Christen has alluded to, we don't have, if indeed the prior attack was material, both to either the 4th or the 14th Amendment claims,

[00:21:43] Speaker 02:
we don't have a clearly established right.

[00:21:47] Speaker 04:
You mean under the 14th Amendment?

[00:21:51] Speaker 02:
Under either one, right.

[00:21:52] Speaker 02:
I mean, that's the problem is with a, under qualified immunity, we have cases that well establish that shooting someone in the back as they're fleeing, I mean, that goes back to Garner itself.

[00:22:07] Speaker 02:
is you have a clearly established right against that.

[00:22:10] Speaker 02:
I guess I'm just trying to figure out how we frame these other concerns which are not in those other cases.

[00:22:19] Speaker 02:
The concerns about the prior attack potentially debilitating the officer from future defense of himself or others.

[00:22:32] Speaker 02:
Where does that I mean I think not a factual dispute?

[00:22:36] Speaker 02:
It's just whether is that material to our inquiry for qualified immunity purposes?

[00:22:40] Speaker 04:
Well, I think the totality of the circumstances sure of course are important in terms of the entirety of the of the incident But I think that as your honor stated earlier during the argument that there is a reset there's ample amount of cases that state

[00:22:53] Speaker 04:
when a threat might have existed with either a gun or some other kind of weapon, here was a screwdriver that was taken away, just because that threat at some point existed doesn't mean it continues once it's dissipated.

[00:23:06] Speaker 01:
But counsel, you're reading in the screwdriver, the officer never saw the screwdriver, that it was taken away.

[00:23:11] Speaker 01:
The officer didn't know that either.

[00:23:13] Speaker 01:
He didn't know how he'd been attacked.

[00:23:14] Speaker 01:
And it's really a compressed time frame, right?

[00:23:17] Speaker 01:
We do have a lot of case all that talks about 2020 hindsight.

[00:23:20] Speaker 01:
So this is a hard case.

[00:23:22] Speaker 04:
Well, I know those cases about 2020 hindsight, but what we do know, and this is where the Pharaoh scan evidence, for example, comes into play.

[00:23:28] Speaker 04:
This was a scan that was conducted right after the incident by the officers.

[00:23:32] Speaker 04:
You can get down to the centimeter as to the distances of the bullet casings, where the body landed, where the shots were, all the evidence on a 3D image.

[00:23:43] Speaker 04:
And that's what the expert used here.

[00:23:45] Speaker 04:
And so you can tell

[00:23:47] Speaker 04:
It was a rapidly unfolding event, but we also know the distances and 30 feet or 22 feet getting shot in the back just because there might have been a threat or just because a weapon was used previously.

[00:23:58] Speaker 04:
But once that threat dissipates, you can't shoot somebody in the back.

[00:24:00] Speaker 04:
And I think the case law is clear and it was clearly established at the time if there's no imminent harm.

[00:24:06] Speaker 04:
that you cannot use excessive force.

[00:24:08] Speaker 02:
Why can't we look to the harm that the officer might have apprehended if he had passed out or been unable to respond to that?

[00:24:19] Speaker 04:
Well, understood, but what we do know here is that he didn't pass out.

[00:24:24] Speaker 02:
Well, but that's hindsight, right?

[00:24:26] Speaker 01:
That's it.

[00:24:26] Speaker 01:
It's 20-20 hindsight.

[00:24:28] Speaker 04:
Well, because it's an objective standard.

[00:24:29] Speaker 04:
It's not a subjective standard.

[00:24:31] Speaker 01:
And this court has repeatedly said, well, just because an officer in those shoes, this guy's been attacked, and he thinks he might pass out.

[00:24:37] Speaker 01:
What about that hypothetical officer?

[00:24:39] Speaker 01:
We don't expect perfection.

[00:24:41] Speaker 04:
I understand it, Your Honor.

[00:24:42] Speaker 04:
We don't expect perfection.

[00:24:43] Speaker 04:
But that's also a subjective situation.

[00:24:45] Speaker 01:
Well, I'll stay out of your way here.

[00:24:48] Speaker 01:
But I just am not hearing a response on the qualified immunity prong.

[00:24:52] Speaker 01:
How would we get to go back to Judge Johnson's question?

[00:24:56] Speaker 01:
I think he was circling back to mine and maybe maybe Judge Johnson started us off.

[00:25:00] Speaker 01:
But this seems to be the focus of our concern.

[00:25:02] Speaker 01:
We don't have case law that says this.

[00:25:04] Speaker 04:
that in the scenario where an officer says he thought he was going to pass out.

[00:25:09] Speaker 04:
Sure, there might not be an exact case where an officer has made that statement, but I think an officer at the time in Officer Perez's shoes would have known that using force on an individual when there's no threat, right, just because he may have imagined that he was going to

[00:25:24] Speaker 04:
pass out.

[00:25:25] Speaker 04:
Again, that's a subjective thought.

[00:25:27] Speaker 04:
We have to look at the objective facts.

[00:25:28] Speaker 01:
Are you talking then about immediate threat because there has to be an immediate threat of harm and you think it's not immediate enough because he wasn't sure he was going to pass out?

[00:25:34] Speaker 01:
Is that it?

[00:25:35] Speaker 04:
Yes, and I think that's, that's correct.

[00:25:36] Speaker 04:
And I think that is the law.

[00:25:37] Speaker 04:
There needs to be an imminent harm, imminent threat of harm, serious injury or death.

[00:25:44] Speaker 04:
And that just does not exist in this instance because of the distance, because of the fact that he was taken away

[00:25:50] Speaker 04:
And because, one, the officer never did pass out.

[00:25:53] Speaker 04:
I mean, he may have thought that.

[00:25:55] Speaker 04:
That's still a subjective thought, but that's why we have to look at the totality of the evidence here.

[00:25:59] Speaker 01:
So I'm just trying to get your argument.

[00:26:01] Speaker 01:
It seems to be, in a nutshell, you don't think this was imminent enough.

[00:26:04] Speaker 01:
The risk to the officer wasn't imminent enough.

[00:26:05] Speaker 04:
Is that it?

[00:26:06] Speaker 04:
That is it, Your Honor, and I think that's the case law for decades, that there needs to be under an imminent threat.

[00:26:11] Speaker 00:
So, counsel, are you essentially arguing that this is an obvious case and you don't have to have one?

[00:26:17] Speaker 00:
on point because it's so obvious that an officer would have known that if a suspect was fleeing and there was no immediate threat as you interpret the circumstances that

[00:26:29] Speaker 00:
it was obvious that the officer would have known not to shoot a fleeing suspect in the back.

[00:26:35] Speaker 04:
Is that your argument?

[00:26:36] Speaker 04:
That is, Your Honor.

[00:26:37] Speaker 04:
I do believe it's an obvious case.

[00:26:38] Speaker 04:
And I think this Court has numerous times held that you don't need an exact fact scenario.

[00:26:44] Speaker 04:
You don't need a case that has every single fact, because of course, that's not what occurs most of the time.

[00:26:50] Speaker 00:
Right.

[00:26:51] Speaker 00:
Could I ask you, your time is running out, but I want to ask you about the 14th Amendment claim, because I see those as a little different.

[00:26:57] Speaker 00:
Because of the 14th Amendment claim, there has to be

[00:27:00] Speaker 00:
a intent to harm on the part of the officer.

[00:27:05] Speaker 04:
Well, I think here a reasonable jury could see that the initial attack caused the officer to retaliate against him, and there was time for contemplation here again, because— Where is a clearly established case that would support a 14th Amendment claim in this context?

[00:27:22] Speaker 00:
The intent to harm is a very high standard.

[00:27:25] Speaker 04:
Well, I think there's also a deliberate indifference standard.

[00:27:28] Speaker 04:
But I think the Tam Land case.

[00:27:29] Speaker 00:
I don't think it's deliberate indifference for 14th Amendment.

[00:27:32] Speaker 00:
Purpose to harm.

[00:27:33] Speaker 00:
Yeah, it has to be a purpose to harm.

[00:27:34] Speaker 04:
Well, I think the Tam Land case does have evidence.

[00:27:38] Speaker 04:
Because again, if the officer, if he wasn't under imminent harm, then the use of force is categorically unreasonable.

[00:27:44] Speaker 00:
That's excessive force, but it's not an intent to harm.

[00:27:49] Speaker 00:
Intent to harm is a higher standard.

[00:27:52] Speaker 00:
Not just excessive force, but it has to be.

[00:27:54] Speaker 00:
that the officer actually shot him, not for a law enforcement purpose, but to harm him for a reason that's not related to law enforcement.

[00:28:04] Speaker 00:
So that's a very high standard.

[00:28:06] Speaker 00:
So on this record, what was there in the record, even looking at the facts most favorably to the plaintiff, what was there that would show support of finding by the jury that there was an intent to harm?

[00:28:21] Speaker 04:
Well, Your Honor, I think just as the district court opined here, if the jury, a reasonable jury, looks that there was no imminent harm and that the individual was shot in the back at a distance, that can be considered a purpose to harm because there was no imminent threat.

[00:28:33] Speaker 00:
So there would be no difference between the analysis on the excessive force and the intent to harm?

[00:28:39] Speaker 04:
Well, I think you have to look at whether in the context of the retaliation, of course.

[00:28:43] Speaker 04:
So if you've been attacked and a person is now running away, there's no real threat to the officer.

[00:28:49] Speaker 04:
And at a distance of 30 feet, he shoots somebody in the back, then a jury can infer that that was a purpose to harm because now there's no threat.

[00:28:57] Speaker 04:
He's 30 feet away from me, and I'm shooting him in the back.

[00:29:00] Speaker 00:
So I think a reasonable jury can infer that the- What's the case that would clearly establish that for purposes of qualified immunity?

[00:29:08] Speaker 04:
Well, I think Tam Lam speaks to that, to the 14th Amendment.

[00:29:11] Speaker 00:
I think also- It speaks to the 14th Amendment, but is it anywhere close to the facts of this case so that we can say it's clearly established?

[00:29:20] Speaker 04:
Well, again, I think it goes back to the obvious standard.

[00:29:23] Speaker 04:
I think it's clearly established based on the precedent of all the cases that have held that imminent harm.

[00:29:28] Speaker 04:
If the officers none are imminent harm, then then you can meet that standard because again, if if so, there's not an exact case under the 14th Amendment with these facts.

[00:29:37] Speaker 04:
But what we do know is that if there's no harm,

[00:29:40] Speaker 04:
and a person's at a distance and being shot in the back, that can be inferred by the jury to be a purposeful.

[00:29:45] Speaker 00:
But that's true for your excessive force claim, because we do have some cases that talk about shooting in the back for excessive force.

[00:29:52] Speaker 00:
But the intent to harm, I'm not sure that you can use those same cases to say this is an obvious case.

[00:29:58] Speaker 00:
of intent to harm.

[00:30:00] Speaker 04:
Well, under the I will I will say there's no exact case under the 14th Amendment.

[00:30:04] Speaker 00:
What's your closest case?

[00:30:05] Speaker 00:
Again, I think the 14th Amendment case.

[00:30:08] Speaker 00:
What is Tam Lam?

[00:30:09] Speaker 04:
I think Tam Lam is the closest case.

[00:30:11] Speaker 00:
So tell me the language in Tam Lam that you say clearly establishes that the facts of this case amount to intent to harm.

[00:30:20] Speaker 00:
Well, I think in that case, because it will give me the language in the case that would put an officer on notice

[00:30:27] Speaker 00:
that the intent to harm.

[00:30:30] Speaker 00:
Oh, I misspoke.

[00:30:31] Speaker 04:
There's also another case, Your Honor.

[00:30:33] Speaker 04:
The SR Nahad case versus Browder.

[00:30:36] Speaker 04:
That's another case, Your Honor.

[00:30:37] Speaker 00:
Wait, wait.

[00:30:37] Speaker 00:
Counsel, counsel, wait.

[00:30:39] Speaker 00:
Is Tan Lam your best case?

[00:30:41] Speaker 04:
I think that case, which also references SR Nahad, both of them do.

[00:30:46] Speaker 04:
Now, in Tan Lam, the jury found.

[00:30:47] Speaker 00:
Wait, counsel, could I please tell you where I'm going?

[00:30:51] Speaker 00:
Yes.

[00:30:52] Speaker 00:
Point me to the precise language in Tan Lam.

[00:30:55] Speaker 00:
that you think would put an officer on notice that these actions would constitute an intent to harm.

[00:31:02] Speaker 00:
That's what I'm looking for, for the clearly established prong on the 14th Amendment.

[00:31:06] Speaker 04:
Well, I think, and I can bring you on page, in Tamlands, the site is 1003 and 1004, Penn site, in that case.

[00:31:20] Speaker 02:
OK.

[00:31:20] Speaker 04:
They discussed the purpose to harm standard is a subject of standard.

[00:31:25] Speaker 04:
And the officer violates the due process cause if he used force with only an illegitimate purpose in mind.

[00:31:34] Speaker 04:
So for example, if he acts with an objective to bully a suspect or get even.

[00:31:38] Speaker 04:
And that's also referencing the Wilkerson case.

[00:31:41] Speaker 04:
So when an officer is acting with the intent to bully or get even, I think Wilkerson's actually been, I think, the law in the Ninth Circuit for well over a decade.

[00:31:53] Speaker 04:
then in that instance, the officer, if he's trying to get even with a suspect, again, here there's an altercation, he's running at a distance, shot in the back, I think we can, a reasonable jury can make the inference that he was acting with the purpose to harm.

[00:32:09] Speaker 00:
And Lam said that there was not an intent to harm in that case, so I don't think that case helps you.

[00:32:15] Speaker 04:
Ultimately, there was not.

[00:32:17] Speaker 04:
But the case law that it references under the 14th Amendment, which is the Wilkerson case, the SR Nahad case, both of those cases, again, the standard is if the officer has essentially a grudge, an axe that he wants to grind with an individual.

[00:32:32] Speaker 04:
Now, what we do know here is he was attacked, he's running away, shot in the back.

[00:32:36] Speaker 04:
So I think the case law has been around for a while that would make it clearly established if you're trying to get even with a suspect,

[00:32:44] Speaker 04:
then you can perhaps meet that 14th Amendment purpose to harm standard.

[00:32:49] Speaker 00:
We've helped you at seizure time.

[00:32:50] Speaker 00:
Are there any other questions?

[00:32:52] Speaker 04:
No further questions.

[00:32:53] Speaker 00:
Thank you.

[00:32:54] Speaker 00:
I will give you a minute for rebuttal.

[00:32:56] Speaker 00:
Oh, no.

[00:32:58] Speaker 00:
No, you don't get rebuttal.

[00:32:59] Speaker 00:
I'm sorry.

[00:33:00] Speaker 00:
You have exceeded your time.

[00:33:01] Speaker 00:
Thank you.

[00:33:01] Speaker 00:
Rebuttal.

[00:33:06] Speaker 03:
Thank you, Your Honors.

[00:33:07] Speaker 03:
Just to briefly address the last point

[00:33:11] Speaker 03:
First of all, Tanlam can't be clearly established law for anything in this, because it was decided after this incident.

[00:33:19] Speaker 03:
So.

[00:33:19] Speaker 02:
What about the Foster case, where we seem to be suggesting, and it's also, Nihad is in the mix here too, but the Foster case that merely shooting someone in the back can provide the basis for the influence of a 14th Amendment violation.

[00:33:46] Speaker 03:
I think you have to look at the totality, the circumstances, to make a determination whether you can draw that inference under the circumstances.

[00:33:53] Speaker 03:
In this case, the fact is that at the time the shooting happened, as the corporal Perez believed, reasonably, unreasonably, whatever, that he was confronted with the possibility of another attack.

[00:34:13] Speaker 01:
Well, he said he might be.

[00:34:14] Speaker 01:
That's the problem.

[00:34:17] Speaker 01:
It is the question is whether he reasonably understood there was an imminent risk.

[00:34:25] Speaker 03:
Part of the difficulty I'm having is that there are two different standards here in terms of the Fourth Amendment and Fourteenth Amendment.

[00:34:31] Speaker 01:
I'm not spending a whole lot of time on the Fourteenth Amendment in this argument.

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

[00:34:34] Speaker 01:
So my questions didn't go to the Fourteenth Amendment.

[00:34:37] Speaker 03:
Okay.

[00:34:38] Speaker 01:
I think purpose to harm standard is extraordinarily high.

[00:34:42] Speaker 01:
Yeah.

[00:34:42] Speaker 01:
So what about the Fourth Amendment?

[00:34:45] Speaker 03:
In terms of the Fourth Amendment, I would just repeat what I'd said during my initial argument, that under all the circumstances and given

[00:34:51] Speaker 03:
the circumstances in which corporal Perez found himself at the moment he made the decision to fire, which was having been attacked, having been affected by this.

[00:35:01] Speaker 03:
There may be a dispute as to how seriously injured he was.

[00:35:04] Speaker 01:
But it can't be the case that in every police officer shooting situation, if a week later an officer says,

[00:35:10] Speaker 01:
My adrenaline went sky high.

[00:35:11] Speaker 01:
I bet it does.

[00:35:14] Speaker 01:
And I felt dizzy, or I felt faint, or I felt that that can't be sufficient on its own.

[00:35:19] Speaker 01:
And so I'll just couple that with the injuries in this case that your client suffered.

[00:35:25] Speaker 01:
At the end of the day, it is undisputed that he didn't pass out.

[00:35:29] Speaker 01:
But the injuries also were, I think he's treated with aspirin at the hospital.

[00:35:34] Speaker 01:
It doesn't show that there were stitches.

[00:35:36] Speaker 01:
Is that part of the totality of the circumstances?

[00:35:39] Speaker 03:
I think the potential seriousness of the injuries is, but looking at the treatment is not necessarily the best way to look at that.

[00:35:48] Speaker 03:
It is undisputed that the diagnosis that was given at the hospital was, if I can find it, I apologize.

[00:35:58] Speaker 00:
Well, Counsel, you can't have it both ways.

[00:36:00] Speaker 00:
You ask us to look at the totality of the circumstances, but now you want to limit what we look at in terms of the

[00:36:06] Speaker 00:
Well, totality of the circumstances.

[00:36:09] Speaker 03:
In terms of the question of how he was feeling, how he was treated, it's not necessarily reflective of how he was treated.

[00:36:18] Speaker 01:
Well, it could be if he's losing copious amounts of blood, which in this case he wasn't.

[00:36:22] Speaker 01:
So I think your argument has to be that whether he was right or not,

[00:36:27] Speaker 01:
he thought he had a really serious injury that he might have and that he could lose consciousness.

[00:36:32] Speaker 01:
That has to be your argument.

[00:36:33] Speaker 03:
Well, that he had been injured enough that he might lose consciousness.

[00:36:37] Speaker 01:
Right, right, right.

[00:36:37] Speaker 01:
We're saying the same thing.

[00:36:38] Speaker 01:
OK.

[00:36:38] Speaker 01:
And I'm not saying it for you, Lester.

[00:36:41] Speaker 01:
It's in your briefing.

[00:36:42] Speaker 01:
It's just that some of the stress testing here has been concerning.

[00:36:46] Speaker 01:
We are going to look at the totality of the circumstances.

[00:36:48] Speaker 03:
If I may, this is what the diagnosis was.

[00:36:51] Speaker 03:
It was closed head injury, facial stab wound, laceration of scalp,

[00:36:55] Speaker 03:
stab wound of head and stab wound of neck with complication.

[00:36:59] Speaker 03:
This is not an abrasion.

[00:37:02] Speaker 03:
This is not a scratch.

[00:37:04] Speaker 03:
This is something.

[00:37:05] Speaker 00:
We understand.

[00:37:06] Speaker 03:
OK.

[00:37:06] Speaker 00:
We understand.

[00:37:07] Speaker 00:
Thank you, counsel.

[00:37:08] Speaker 00:
Thank you, your honor.

[00:37:08] Speaker 00:
Thank you to both counsel.

[00:37:09] Speaker 00:
The case is argued is submitted for a decision by the court.

[00:37:12] Speaker 00:
We are in recess until 930 AM tomorrow morning.

[00:37:29] Speaker 01:
This court stands in recess until 9 30 tomorrow morning.