[00:00:00] Speaker 01: Thank you very much. [00:00:00] Speaker 01: May I please record? [00:00:01] Speaker 01: My name is Cameron Baker. [00:00:03] Speaker 01: I represent defendant, appellant, Deputy Stephanie Nelson, and Deputy Christopher Thomas. [00:00:10] Speaker 02: You might need to raise the microphone up because you're tall. [00:00:12] Speaker 02: I don't know if there's a way to do that. [00:00:13] Speaker 02: Can you hear me now? [00:00:14] Speaker 02: That's better. [00:00:15] Speaker 01: OK. [00:00:17] Speaker 01: The appellant asked this court to reverse the district court's denial of qualified immunity as to the two claims that are issue. [00:00:27] Speaker 01: The two claims both involve the Fourth Amendment [00:00:30] Speaker 01: I think both of these are very important issues because they involve practical police enforcement. [00:00:37] Speaker 01: The first issue is whether an officer investigating a report of a shooting can contact a witness, remain in the witness's front door after the witness asks her to leave, and attempt to gain information about information that the witness has reported. [00:00:56] Speaker 01: The witness called and said, hey, [00:00:58] Speaker 01: I know about the shooting, reported the shooting, and so they're responding. [00:01:02] Speaker 01: And it's undisputed that the incident was a serious incident involving an assault weapon and possibly injured parties. [00:01:10] Speaker 01: So the question is whether that's a seizure under the Fourth Amendment. [00:01:14] Speaker 01: And the answer, I think, is clearly no. [00:01:17] Speaker 01: And the district court denied summary judgment. [00:01:20] Speaker 01: to Deputy Nelson on that issue. [00:01:24] Speaker 01: Related in that case, in that particular issue, is whether the plaintiff ever pled a verbal seizure claim. [00:01:33] Speaker 01: There is nothing in the complaint that indicates there was a verbal seizure claim pled. [00:01:38] Speaker 01: It was only raised at summary judgment. [00:01:41] Speaker 01: And in fact, they are the ones who brought summary judgment on behalf of that claim. [00:01:45] Speaker 02: So the complaint does have the facts. [00:01:47] Speaker 02: I mean, you may say that it doesn't have merit, this claim. [00:01:50] Speaker 02: You just started with the idea that this doesn't have merit. [00:01:52] Speaker 02: But the complaint does talk about the facts of they came to my porch. [00:01:56] Speaker 02: I asked them to leave. [00:01:56] Speaker 02: They wouldn't leave. [00:01:57] Speaker 02: Why isn't that? [00:01:58] Speaker 02: I mean, as we were just talking about in the last case, a complaint has to state the facts. [00:02:01] Speaker 02: It doesn't have to have the right legal argument that goes with them. [00:02:04] Speaker 02: If we imagine that this is a legal claim, why aren't those facts enough to state it? [00:02:08] Speaker 01: Because those facts don't establish a claim as a matter of law. [00:02:13] Speaker 02: OK, but that's a merits argument. [00:02:15] Speaker 01: Because the issue is whether or not a reasonable person would have felt unable to terminate the contact. [00:02:25] Speaker 01: There are no allegations about that. [00:02:27] Speaker 01: And in fact, if you look at the relevant part of the complaint, they said that she was seized and then they dragged her out of the house. [00:02:35] Speaker 01: And in fact, there are factual allegations about Deputy Nelson grabbing. [00:02:52] Speaker 01: There were definitely many more questions I would have asked Ms. [00:02:55] Speaker 01: Pichotte that would have developed. [00:02:57] Speaker 01: Did she feel at any point in time she was unable to leave? [00:03:00] Speaker 00: Counsel, if we were to conclude, and this is hypothetical, but if we were to conclude that qualified immunity should apply because there's no clearly established law, would we have to decide definitively the pleading question or the question of excessiveness? [00:03:21] Speaker 01: That's a very good question, Your Honor. [00:03:24] Speaker 01: I think this court has an obligation to avoid constitutional issues, if it can't. [00:03:31] Speaker 00: The whole thing is a constitutional issue. [00:03:34] Speaker 00: It is. [00:03:34] Speaker 00: So there's no statute or common law that would answer the question. [00:03:39] Speaker 00: So I'm not really sure I understand your answer. [00:03:42] Speaker 01: What I'm saying is, generally, if this court has an alternative ground, [00:03:46] Speaker 01: to resolve an issue that does not involve making a ruling on the merits of a constitutional claim, it goes and uses that alternative ground. [00:03:53] Speaker 02: But saying that there's no clearly established law would not be answering the constitutional question. [00:04:01] Speaker 00: I'm not sure why you're fighting this. [00:04:03] Speaker 00: I just don't understand. [00:04:04] Speaker 00: I guess you're saying that theoretically there's a problem with it, but I don't understand why. [00:04:11] Speaker 01: No, I'm not. [00:04:12] Speaker 01: In my view, what the district court should have done is the district court should have said, this claim is not pledged, but nonetheless, I reached the merits and I determined that there's no, it's not clearly established that this violated the forecourt. [00:04:25] Speaker 03: I didn't understand that logic. [00:04:26] Speaker 03: The district court said it's not pledged, so therefore I can't grant summary judgment on it. [00:04:31] Speaker 03: I don't understand that. [00:04:32] Speaker 03: Neither do I, Your Honor. [00:04:33] Speaker 03: If it's not pled, then maybe it just doesn't exist. [00:04:36] Speaker 01: Well, it's also very interesting, I think, as a matter of practical pleading. [00:04:39] Speaker 01: Parties often, if you call on it, you designate an ADA cause of action. [00:04:44] Speaker 01: But there are multiple ADA violations, each of which is a separate cause of action or a separate right. [00:04:50] Speaker 01: So I don't understand how the district court said. [00:04:54] Speaker 03: It could lead to a lot of complications in the district courts if you could come up with an unpled claim at summary judgment. [00:05:01] Speaker 03: you know, the district court can grant summary judgment on everything else, but then have to continue because this claim was not pledged. [00:05:06] Speaker 03: That rule makes no sense to me. [00:05:09] Speaker 03: It did not make sense to me, either. [00:05:11] Speaker 03: Have we had any case law suggesting that, or is there any precedent about that? [00:05:16] Speaker 01: No. [00:05:17] Speaker 01: We established several, presented the court with several decisions where the court has granted summary judgment as to claims that were not pledged. [00:05:26] Speaker 01: But it normally comes up in the reverse. [00:05:27] Speaker 01: It normally comes up when the defendant is attacking that [00:05:31] Speaker 01: a broader claim and the plaintiff tries to add it at summary judgment. [00:05:38] Speaker 00: Counsel, if I may ask you to address the other defendants' situation and specifically to ask you the following. [00:05:49] Speaker 00: At this procedural place where we are, we have to assume the truth of the plaintiff's contentions. [00:06:00] Speaker 00: And the plaintiff says there was no push. [00:06:06] Speaker 00: There was no touch. [00:06:08] Speaker 00: And if that is true, why couldn't a reasonable fact finder conclude that Nelson grabbed the plaintiff without any [00:06:30] Speaker 00: reason to do so. [00:06:32] Speaker 01: Your Honor, Your Honor is now talking about Deputy Thomas's? [00:06:34] Speaker 00: Yes, I'm sorry. [00:06:35] Speaker 00: I used the wrong name. [00:06:37] Speaker 01: No, no, I understood it. [00:06:38] Speaker 01: So the situation in this one, again, it seems to me a very important question of practical and efficient police practices. [00:06:47] Speaker 01: At this point in time, Deputy Thomas is approximately 100 feet away. [00:06:50] Speaker 01: He hears the two women talking. [00:06:52] Speaker 01: He turns around. [00:06:53] Speaker 01: He's going towards them. [00:06:54] Speaker 01: He cannot see. [00:06:55] Speaker 01: It's undisputed. [00:06:56] Speaker 01: He cannot fully see Ms. [00:06:57] Speaker 01: Pachot. [00:06:58] Speaker 01: He doesn't know what Mr. Pachot's doing. [00:07:00] Speaker 01: And for the purpose of this appeal, we've accepted that Deputy Nelson initiated the physical confrontation. [00:07:11] Speaker 01: So the two women are struggling. [00:07:13] Speaker 01: He's coming to the scene. [00:07:14] Speaker 01: He doesn't know why Deputy Nelson has done what she has done. [00:07:20] Speaker 01: But he can't see Ms. [00:07:21] Speaker 01: Pichot. [00:07:22] Speaker 01: He cannot determine that she did or did not pose a threat. [00:07:26] Speaker 01: All he knows is that his fellow officer [00:07:28] Speaker 01: has initiated this conflict. [00:07:30] Speaker 02: Can I pause you there? [00:07:31] Speaker 02: Yeah. [00:07:31] Speaker 02: It wasn't clear to me that he knew that Nelson had initiated. [00:07:35] Speaker 02: But are you saying he did know that? [00:07:37] Speaker 01: Yeah, no. [00:07:39] Speaker 01: Ms. [00:07:39] Speaker 01: Pichot testified that. [00:07:40] Speaker 01: And so we have to accept that. [00:07:41] Speaker 02: I understand that as to Nelson. [00:07:43] Speaker 02: So for the claim with Nelson, she alleged that Nelson started it. [00:07:47] Speaker 02: And we take that as true. [00:07:49] Speaker 02: But I hadn't understood that you were conceding that Thomas knew that, because he wasn't there when that happened, maybe. [00:07:56] Speaker 02: But maybe you are conceding that. [00:07:58] Speaker 02: That would be a different thing than what I had understood. [00:08:00] Speaker 02: I think we have to concede that. [00:08:01] Speaker 02: That he knew that, even though he was somewhere else. [00:08:04] Speaker 00: Well, he was turned towards them and walking towards them. [00:08:07] Speaker 01: So you can sort of see this in the video. [00:08:09] Speaker 01: The video actually, to the extent you can see it, shows the same perspective. [00:08:14] Speaker 01: Roughly, that's from basically the perspective that Thomas would have seen. [00:08:18] Speaker 01: So the way that the screen door comes out like this. [00:08:21] Speaker 01: So if Mr. Chodas is behind the screen door, Deputy Nelson would be here. [00:08:25] Speaker 01: So he could see Deputy Nelson. [00:08:28] Speaker 01: So I think in that case, you have to concede if he could see Deputy Nelson. [00:08:33] Speaker 01: He could see if she had. [00:08:35] Speaker 02: So then that's different. [00:08:36] Speaker 02: OK, so then if he knew that Nelson initiated the physical contact, then why does he have any reason to think that there's a reason for arrest here? [00:08:50] Speaker 02: or anything else, because all he knows about the plaintiff at that point is she's a witness. [00:08:57] Speaker 02: She's asking Nelson to leave the porch. [00:09:00] Speaker 02: If Nelson is the first attacker, what do we think that he could reasonably assume that would allow him to use force? [00:09:07] Speaker 01: Well, I think Your Honor's kind of jumping ahead. [00:09:09] Speaker 01: You've talked about arrest. [00:09:11] Speaker 01: The question is not whether he's going to arrest her at this point. [00:09:13] Speaker 00: No, it's whether he can grab her. [00:09:15] Speaker 00: OK, so what is the basis for this? [00:09:16] Speaker 01: The question is whether he can stop the fight between the two women. [00:09:20] Speaker 00: But there was no fight. [00:09:22] Speaker 00: If you accept the facts in the light most favorable to the plaintiff, that's what started this conversation. [00:09:33] Speaker 00: either nothing or if he sees Nelson grabbing the plaintiff first, then why can he grab her? [00:09:47] Speaker 03: Why wouldn't it be just objective reason that she's trying to arrest her? [00:09:53] Speaker 03: And then he's allowed to assist her in arresting her. [00:09:55] Speaker 01: That's the collective knowledge. [00:09:58] Speaker 00: But that's not looking at it in the light most favorable to the plaintiff. [00:10:01] Speaker 03: Well, it is, because all I see his plaintiff is that Thomas saw them yelling, and then Nelson starts seizing Ms. [00:10:11] Speaker 03: Pichotti, right? [00:10:13] Speaker 03: So he doesn't know what the conversation is about. [00:10:15] Speaker 03: All he sees is yelling, and then her grabbing. [00:10:17] Speaker 01: What her hands are doing, he doesn't know anything. [00:10:19] Speaker 01: What's going on? [00:10:20] Speaker 01: He only had some scare view of Ms. [00:10:22] Speaker 01: Pichotti. [00:10:22] Speaker 01: So he cannot determine. [00:10:24] Speaker 01: So the question is, [00:10:26] Speaker 01: Under the collective knowledge, he can assume that she's doing right. [00:10:29] Speaker 01: I mean, I think that's the assumption. [00:10:30] Speaker 02: Well, I don't think the caseload supports that. [00:10:33] Speaker 02: I mean, you can't always assume as an officer that every level of force another officer is using is appropriate, right? [00:10:41] Speaker 02: Because you can use excessive force after someone else uses excessive force. [00:10:44] Speaker 02: It's not automatically if someone's shooting, you can start shooting, too, if there's no reason to be shooting. [00:10:50] Speaker 01: But Your Honor, we're not talking about that. [00:10:52] Speaker 01: We're talking about all that Deputy Nelson is using is her hands. [00:10:55] Speaker 00: OK. [00:10:56] Speaker 00: Yes, but that could be excessive force too. [00:10:59] Speaker 00: If someone is standing on their own porch and says, I'd like you to leave, and the officer starts pushing or shoving or doing something, that is not, I mean, why is that appropriate? [00:11:16] Speaker 00: Again, viewing the facts in the light most favorable to the plaintiff. [00:11:20] Speaker 00: So why would one assume that there's an arrest or anything else in this particular situation? [00:11:30] Speaker 01: The difference here is that Thomas is not there. [00:11:33] Speaker 00: If Thomas is sitting right there... No, but he's going towards them and he's seeing it. [00:11:38] Speaker 01: He cannot see it, Your Honor. [00:11:40] Speaker 00: Well, this is what we were just talking about. [00:11:41] Speaker 02: I didn't think he could see it, but then you just told me he could. [00:11:45] Speaker 01: He could see Deputy Nelson. [00:11:48] Speaker 01: He could not see all of Miss Pechote. [00:11:50] Speaker 02: Okay, so then why did you say that he knew that Nelson was the first attacker physically? [00:11:56] Speaker 02: Because I didn't think that was true. [00:11:58] Speaker 02: If he can't see Pechote, he doesn't know. [00:11:59] Speaker 02: But you said he does know. [00:12:01] Speaker 02: So now we have to assume he does know that Nelson is the attacker. [00:12:04] Speaker 02: At that point, why doesn't he grab Nelson instead of grabbing Pechote? [00:12:07] Speaker 01: because he doesn't know why Nelson's initiated it. [00:12:11] Speaker 01: He doesn't have sufficient information. [00:12:14] Speaker 01: So again, let's just plug it. [00:12:17] Speaker 00: So your position is that if an officer has insufficient information, they can basically do what they will, rather than try to figure out what's going on? [00:12:27] Speaker 00: I mean, that's a usual position. [00:12:31] Speaker 01: Your Honor, there's two women who are fighting. [00:12:34] Speaker 01: OK. [00:12:34] Speaker 00: Not according to the plaintiff. [00:12:36] Speaker 00: There's one person who's fighting, and that's Nelson. [00:12:39] Speaker 00: So that's why I keep coming back to the procedural posture of this case, not to who might ultimately win or lose if it goes forward. [00:12:51] Speaker 01: Well, I believe that the district court, to the extent it found things, talked about a physical confrontation. [00:12:58] Speaker 01: There was a physical confrontation between the two women. [00:13:01] Speaker 02: OK, well, it doesn't matter what the district court found, because we're de novo. [00:13:04] Speaker 02: So tell us what the basis for that is. [00:13:06] Speaker 01: Well, that's the fact. [00:13:07] Speaker 01: The fact is that the two women, there was no resolve. [00:13:11] Speaker 01: Ms. [00:13:11] Speaker 01: Pichotte was resisting. [00:13:13] Speaker 00: That's why I keep coming back to the principle that we must look at the facts in the light most favorable to the plaintiff. [00:13:21] Speaker 00: And according to Thomas, he saw plaintiff engage or push Nelson. [00:13:26] Speaker 00: But she says, I never pushed anybody. [00:13:29] Speaker 00: I did not do that. [00:13:31] Speaker 00: And so for purposes of our analysis, we have to assume that Nelson was the only pusher and that Thomas could not have seen plaintiff push because she didn't. [00:13:42] Speaker 00: That's why I'm trying to get you to focus on assuming that to be true [00:13:50] Speaker 00: Then what? [00:13:52] Speaker 01: I'd like to reserve my time. [00:13:54] Speaker 02: While we're asking questions, you need to answer. [00:13:56] Speaker 01: Yes. [00:13:56] Speaker 01: No, I did. [00:13:57] Speaker 01: I just wanted to mention that. [00:13:59] Speaker 01: OK, so I guess maybe I'm not being entirely clear. [00:14:02] Speaker 01: So the contention from Deputy Thomas is that he is coming up the scene. [00:14:09] Speaker 01: It's a classic RAM situation, a rapidly evolving scene. [00:14:14] Speaker 01: He's coming across it. [00:14:15] Speaker 01: He's still coming up. [00:14:18] Speaker 01: He doesn't know why Nelson has initiated [00:14:20] Speaker 01: the contact. [00:14:22] Speaker 01: Now, that's, I think, because Ms. [00:14:24] Speaker 01: Pichot testified there was, that Nelson did it, I have to accept that. [00:14:29] Speaker 01: So she sees that Deputy Nelson has initiated, he doesn't know why. [00:14:34] Speaker 01: Under the collective knowledge, he's entitled to believe that she has a, she had a reason. [00:14:38] Speaker 01: He had worked with her. [00:14:39] Speaker 01: Now, again, to me, the question is, did he see anything that led him to believe that she was not using force appropriately? [00:14:47] Speaker 01: He didn't see her whip out her baton and start hitting Ms. [00:14:51] Speaker 01: Pachote. [00:14:52] Speaker 01: He saw her just using her hands, right? [00:14:55] Speaker 00: So is it your position that just using your hands can never be excessive force as a matter of law? [00:15:00] Speaker 00: Because that seems to be your position. [00:15:02] Speaker 01: No, it's not, Your Honor. [00:15:04] Speaker 01: But when force is authorized, you can use minimal force. [00:15:09] Speaker 01: And the using of hands has traditionally been considered by this court as minimal hands. [00:15:13] Speaker 01: Sorry, minimal force. [00:15:14] Speaker 01: So she's just using minimal force. [00:15:17] Speaker 01: He goes up to use minimal force to stop the fight. [00:15:20] Speaker 01: He's got to make a decision. [00:15:22] Speaker 01: How do I stop this fight? [00:15:23] Speaker 01: He can't let the two. [00:15:24] Speaker 01: And yes. [00:15:24] Speaker 02: Well, but what is your answer to if he thinks, if he can see? [00:15:29] Speaker 02: Because you told me he could. [00:15:30] Speaker 02: If he can see that it is Nelson who is starting this fight, then why doesn't he get intervened by grabbing Nelson instead of grabbing Pichoti? [00:15:39] Speaker 01: It's Pichoti. [00:15:40] Speaker 01: Because he doesn't know why Deputy Nelson has initiated. [00:15:44] Speaker 01: He doesn't know who's right or wrong in this situation. [00:15:48] Speaker 01: The question is, if he doesn't know who's right or wrong, why is he... You're supposing he's required to assume that Deputy Nelson is wrong and he has to stop Deputy Nelson. [00:15:58] Speaker 01: He just needs to stop the fight in the best, quickest way and without the minimal injuries to both people, which is what he did. [00:16:06] Speaker 03: You would agree it would be odd if we had a rule that any time an officer comes upon another officer trying to make an arrest of another person, the officer has to inquire first about whether the legitimacy of the arrest before they could intervene to help the other officer, right? [00:16:21] Speaker 01: Yes, I would concede that. [00:16:24] Speaker 03: Has any case said that? [00:16:26] Speaker 03: That officer has to inquire whether or not an arrest is valid before he could intervene to help another officer? [00:16:32] Speaker 01: Yeah, those are the cases that I cited from out of the circuit. [00:16:36] Speaker 02: I think your cases said things like you can assume that they announced themselves. [00:16:40] Speaker 02: No. [00:16:41] Speaker 01: Yeah. [00:16:41] Speaker 01: But it was essentially that they had done what they were supposed to do before they initiated. [00:16:47] Speaker 01: So if they come up upon a fight and they're shooting, that case was a shooting case, right? [00:16:52] Speaker 01: And they don't need to stop and say, hey, why are we shooting? [00:16:54] Speaker 01: What's going on here? [00:16:55] Speaker 01: They can start shooting back. [00:16:57] Speaker 01: That's the whole purpose of the collective knowledge doctrine. [00:17:01] Speaker 01: is that officers can rely on the other officers know what their knowledge is and that they're doing the right thing. [00:17:06] Speaker 01: I mean, that's a practical fundament of how our police system works. [00:17:12] Speaker 01: You have to rely on the other people doing what they're supposed to be doing. [00:17:17] Speaker 02: Maybe if he didn't know because he couldn't see, that would be a more persuasive argument. [00:17:22] Speaker 02: But if he knows that Pechote has been approached because she is a witness, she is not [00:17:30] Speaker 02: being accused of anything. [00:17:32] Speaker 02: And he can see enough of the interaction to hear that all she's saying is, I want you to leave. [00:17:37] Speaker 02: And then Nelson starts attacking her. [00:17:39] Speaker 02: You're saying that that is a reason to arrest Pachote. [00:17:43] Speaker 02: And he can help. [00:17:44] Speaker 01: Well, see, you keep using the word arrest. [00:17:47] Speaker 02: Well, OK, but that's what you just told Judge Bumate. [00:17:49] Speaker 02: He can assume that she's being arrested. [00:17:52] Speaker 01: It was based on his example. [00:17:54] Speaker 01: But the issue here is not whether he could arrest her. [00:17:58] Speaker 00: But you said that earlier in your argument. [00:18:00] Speaker 00: You said he would assume that Nelson is in the process of arresting the plaintiff. [00:18:07] Speaker 00: No. [00:18:08] Speaker 03: I'm sorry. [00:18:08] Speaker 00: So what do you think he should assume? [00:18:10] Speaker 03: That's a reasonable assumption he can make, that she's in the process of arresting Pacheot. [00:18:15] Speaker 00: Well, so you said earlier. [00:18:17] Speaker 01: I'm sorry. [00:18:19] Speaker 01: Yes. [00:18:19] Speaker 03: Pacheot said to her verbally, because there's no allegation that Thomas heard what was saying. [00:18:26] Speaker 03: All we hear is that they're yelling at each other. [00:18:28] Speaker 03: Pachot said, yeah, it was me with the gun. [00:18:30] Speaker 03: I shot all those people. [00:18:31] Speaker 03: Don't you think Nelson had the right to arrest her right then? [00:18:36] Speaker 03: And then if she resisted, then it would have been a valid arrest, and it would have been valid for Thomas to help the arrest. [00:18:41] Speaker 01: Yes, and I think the other thing is if Pichotte had done something, made a move with her hands or done something like that, that indicated she was going to initiate something. [00:18:50] Speaker 00: But we have to take as true her statement that she did nothing. [00:18:56] Speaker 00: And you keep walking away from that. [00:18:59] Speaker 00: But in the procedural posture of this case, we have to assume the truth of everything that the plaintiff has said about her actions. [00:19:08] Speaker 00: And is there anything in this record that suggests that she was a criminal and not just a witness? [00:19:16] Speaker 01: No, but I think the thing Your Honor keeps not wanting to accept maybe is that he can't see Ms. [00:19:22] Speaker 01: Pichot. [00:19:23] Speaker 01: He can't see. [00:19:24] Speaker 03: He can't hear what she's saying. [00:19:27] Speaker 01: She's partially obscured by this green door. [00:19:29] Speaker 01: So he doesn't know what she's doing or saying. [00:19:31] Speaker 01: So it's really, I mean. [00:19:33] Speaker 00: This is so confusing to me because he's facing them, and he claims that he saw the plaintiff push Nelson. [00:19:42] Speaker 00: However, she denies that. [00:19:45] Speaker 00: So we have to assume that she did not push Nelson. [00:19:51] Speaker 00: She did not. [00:19:52] Speaker 00: So he could not have seen it because it didn't [00:19:54] Speaker 00: happened. [00:19:55] Speaker 00: So all he sees is people. [00:19:59] Speaker 00: Maybe he sees nothing other than people shouting at each other, which really doesn't necessarily give you the reasonable person, the idea that he has to stop the person, one of the people who's yelling. [00:20:12] Speaker 00: Or in the alternative, if he was facing them, he would have seen Nelson push first or push only, be the only pusher. [00:20:24] Speaker 00: Again, [00:20:25] Speaker 00: I just don't understand the assertion that somehow he could assume that the plaintiff was a wrongdoer in any sense. [00:20:40] Speaker 01: I think what he's assuming, and I think he's entitled to assume, is that Deputy Nelson has a reason for what she's doing. [00:20:47] Speaker 02: Okay, so and what do you, without Judge Bumente telling you to say arrest, what are, what do you think he thinks he's doing? [00:20:52] Speaker 01: That she's, for whatever reason, she's detained, detainer. [00:20:56] Speaker 01: I would not use the word arrest because I don't think it's an arrest. [00:20:59] Speaker 01: But whatever reason is, Deputy Nelson has decided that she needs to physically control and respond to something that the choke has done. [00:21:08] Speaker 01: Whether it's, whether it's to arrest her, whether it's to [00:21:11] Speaker 01: searcher whether it's to move her out of the house. [00:21:14] Speaker 02: And so do you have a case, I know you have a case that says we can assume they announced themselves, but do you have a case that says as soon as some officer is using force that means that another officer can use equal force without no matter what? [00:21:30] Speaker 01: I think well the closest I can give you is the White v. Pauli case where the court says there's no and it's kind of a weird [00:21:37] Speaker 01: ruling by the Supreme Court, but it basically says there's no case that says an officer cannot rely on the other officer doing the right thing, which is kind of how I would flip it on this. [00:21:50] Speaker 01: Again, we have to find a case that says what Deputy Thomas, if we talk about qualified immunity here, [00:21:56] Speaker 01: What Deputy Thomas did was prohibited. [00:21:59] Speaker 00: Well, there are plenty of cases that say if a person is doing nothing to threaten, nothing to cause a potential for arrest, that force is not permissible. [00:22:10] Speaker 00: We have a whole laundry list of cases like that. [00:22:13] Speaker 00: So if we have to assume for purposes of our decision that the plaintiff did nothing other than stand there and yell, then those cases would apply. [00:22:28] Speaker 01: I would agree, Your Honor, if and if and only if Deputy Thomas had a clear view of Ms. [00:22:36] Speaker 01: Pichot and knew exactly what Ms. [00:22:38] Speaker 01: Pichot did. [00:22:39] Speaker 01: Again. [00:22:39] Speaker 00: Well, he claims to have. [00:22:41] Speaker 00: He claims that he saw her push. [00:22:44] Speaker 00: So he claims that he saw her. [00:22:48] Speaker 01: So again, maybe it's hard to visualize. [00:22:51] Speaker 01: But we have the screen door. [00:22:52] Speaker 01: We have Deputy Thomas here, who he says he can fully see. [00:22:56] Speaker 01: So if he saw Ms. [00:22:58] Speaker 01: Pichot, which to me, to be candid, yes, I believe that's exactly what happened. [00:23:02] Speaker 01: I believe that's what happened. [00:23:03] Speaker 01: Anyway, he would have been able to see her arms past [00:23:09] Speaker 01: the screen door, pushing Deputy Nelson. [00:23:11] Speaker 00: Except she denies it, and we have to take that as true. [00:23:14] Speaker 01: I've accepted that, Your Honor. [00:23:15] Speaker 00: OK. [00:23:15] Speaker 01: I've accepted that. [00:23:16] Speaker 01: I've accepted that that didn't happen. [00:23:17] Speaker 01: I've accepted the fact that Deputy Nelson allegedly started the confrontation. [00:23:25] Speaker 01: But I think the assumption here is that somehow Deputy Thomas knows what Miss Pechota is doing. [00:23:32] Speaker 01: He does not know. [00:23:32] Speaker 01: He does not know whether she has posed a threat or not posed a threat. [00:23:38] Speaker 01: A clear case would be if they were behind a wall, and he runs around, and he sees the two women fighting, and he just jumps in and helps Deputy Nelson. [00:23:50] Speaker 01: Because then he has no view. [00:23:52] Speaker 01: Here he has partial view. [00:23:53] Speaker 01: But he doesn't know what's going on. [00:23:55] Speaker 01: And he doesn't know why Deputy Nelson is an issue. [00:23:57] Speaker 02: So can you tell us just what he would reasonably assume had happened that would justify force? [00:24:04] Speaker 01: I think I told you that Ms. [00:24:06] Speaker 01: Pichardo has made some furtive motion or has done something. [00:24:08] Speaker 01: that leads Deputy Nelson to believe that she's a threat and she needs to be controlled. [00:24:13] Speaker 02: So you think the reasonable assumption is a physical gesture or something? [00:24:18] Speaker 02: I'll just explain a little bit more. [00:24:20] Speaker 02: Say what you mean. [00:24:22] Speaker 02: What is he assuming she did that justifies her? [00:24:24] Speaker 01: Maybe she said, Jimmy, come out here with a gun and let's attack these people. [00:24:29] Speaker 01: Who knows? [00:24:30] Speaker 01: He's entitled, in my view, and I think the case law bears it out, he's entitled to believe that she's doing the right thing. [00:24:37] Speaker 01: absent, I agree, if there's some evidence that would preclude him from relying on it. [00:24:44] Speaker 01: Now, the district court acknowledged the critical question is, what did Thomas know and when did he know it? [00:24:51] Speaker 01: And there's nothing in the record that establishes that he knew that the child was not a threat. [00:24:57] Speaker 01: That's the issue. [00:24:57] Speaker 01: And in fact, the district court in its ruling went so far as to talk about post-arrest incidents as if they were significant to what he knew. [00:25:07] Speaker 01: before he used force. [00:25:08] Speaker 01: And again, he's got to use force to stop the fight. [00:25:12] Speaker 01: He can't sit there, I think Judge Brubentay said, he can't sit there and say, hey, tell me what's going on here, people. [00:25:18] Speaker 01: He's got to stop the fight before someone gets hurt. [00:25:22] Speaker 01: And he used the minimal force. [00:25:24] Speaker 01: Literally, the testimony is from Ms. [00:25:26] Speaker 01: Petrova is that he pushed her from behind. [00:25:28] Speaker 01: He didn't use an arm hold. [00:25:31] Speaker 01: He didn't use a baton strike. [00:25:32] Speaker 01: He didn't punch. [00:25:33] Speaker 01: He didn't kick. [00:25:34] Speaker 00: Well, that gets to a different point, I think. [00:25:39] Speaker 01: So the question in my mind is if he's allowed to use force. [00:25:41] Speaker 01: This is not a case. [00:25:42] Speaker 01: The cases that Your Honor spoke about about not using force is when the person is completely passive and you can't use force. [00:25:49] Speaker 01: The question is if he's allowed to use force, the force he used was minimal. [00:25:54] Speaker 01: And I think he's entitled to use force based on what he knew when at the time he used force. [00:26:00] Speaker 02: Okay, let's hear from the other side. [00:26:02] Speaker 02: I'll still give you two minutes for rebuttal. [00:26:04] Speaker 02: Thank you. [00:26:24] Speaker 04: Good morning. [00:26:26] Speaker 04: May it please the court. [00:26:27] Speaker 04: Pat Vuelma on behalf of Tracy Pichot. [00:26:32] Speaker 04: Good morning. [00:26:32] Speaker 04: I want to address a couple of things. [00:26:35] Speaker 04: First and foremost, there was an unlawful seizure claim that was pled in this case. [00:26:39] Speaker 04: And that's a fact. [00:26:40] Speaker 04: It was pled. [00:26:41] Speaker 04: The factual allegations that supported it were pled as well. [00:26:45] Speaker 04: What we're asking is, does a plaintiff have to divide up every piece and section of an unlawful seizure claim? [00:26:52] Speaker 04: And let's talk about, for example, excessive force. [00:26:54] Speaker 04: Excessive force claims come through this court all the time, where an officer uses baton strikes and a taser strike and a knee strike. [00:27:03] Speaker 04: Is there a separate claim for each one of those strikes? [00:27:05] Speaker 04: Of course not, because the factual allegations are what support that single excessive force claim. [00:27:11] Speaker 04: You don't need to break up the excessive force claim into multiple claims. [00:27:15] Speaker 00: Well, let's cut to the chase with Nelson. [00:27:18] Speaker 00: What is the clearly established law that, in your view, [00:27:22] Speaker 00: would deny qualified immunity. [00:27:26] Speaker 04: So it's really the Florida v. Jardines case and the United States first lending case where the courts first start talking about the knock and talk exception because that's really what's the issue here is what even gave her the right to go up. [00:27:39] Speaker 04: to the door and knock. [00:27:41] Speaker 04: And so one of that is the license, the invitation to come up because she reported a crime. [00:27:47] Speaker 04: So she comes up, but she's not suspected of a crime. [00:27:51] Speaker 04: So the license, the courts have said, are particular in scope, the license to come and talk to me. [00:27:57] Speaker 04: So the officer goes up 1 AM, knocks on the door. [00:28:01] Speaker 04: She opens the door, and she tells her in no uncertain terms, I don't want to talk to you. [00:28:07] Speaker 04: get away from my house, and repeatedly says that. [00:28:11] Speaker 04: The officer continues to try to question her, and she continues to say. [00:28:15] Speaker 00: I understand that. [00:28:16] Speaker 00: I'm looking for the clearly established law that says that that is impermissible. [00:28:23] Speaker 04: Sure. [00:28:23] Speaker 04: So United States versus London, that's a 9th Circuit 2016 case where officers were standing outside of a hotel room, knocking on the door, demanding to talk to the person. [00:28:33] Speaker 04: And the court there said that exceeded the scope of the license of the knock and talk. [00:28:40] Speaker 04: It's something that the court said that trick-or-treaters and Girl Scouts manage effectively every day and every year. [00:28:47] Speaker 04: So if someone tells you to leave, then you should leave. [00:28:50] Speaker 04: That is something that we expect our children to be able to manage. [00:28:55] Speaker 04: I don't understand how it's not clearly established for our officers to manage that same expectation license. [00:29:02] Speaker 04: And so as it turns, if I fully answer the court's question, those are the two cases that I was relying on. [00:29:08] Speaker 04: In regards to the splitting up of the claims and if there was any prejudice, counsel said that he was prejudiced, but he got a police practices expert who wrote an opinion specifically on whether or not the plaintiff was seized on this issue. [00:29:24] Speaker 04: So there was no prejudice. [00:29:26] Speaker 04: Defense counsel anticipated the issue, [00:29:28] Speaker 04: hired a police practice expert who wrote a long opinion all on this issue about whether or not there was a seizure for staying on the porch too long. [00:29:37] Speaker 04: So there was no prejudice. [00:29:39] Speaker 04: He knew, or the defendant knew and was on notice about this issue. [00:29:43] Speaker 04: And then when we turned to excessive force, I think the court, I'd like to make one thing clear. [00:29:49] Speaker 04: One, there was some discussion that Thomas couldn't hear what they were saying. [00:29:56] Speaker 04: That's not true. [00:29:57] Speaker 04: He testified that he could hear what they were saying. [00:30:00] Speaker 04: He could hear Ms. [00:30:01] Speaker 04: Nelson telling the officer to get off of his porch. [00:30:04] Speaker 04: And what he claimed he saw was that she stepped out and pushed her. [00:30:10] Speaker 04: My client claims, which the court must accept, that she was standing in her doorway [00:30:15] Speaker 04: talking, telling the person to leave, and that Miss Nelson reached and grabbed the same time that Thomas is looking and listening, that Nelson reached and grabbed and was pulling her by her ponytail, by her hair, and by her clothes out of her house. [00:30:33] Speaker 04: Thomas then runs in, goes inside of her house, [00:30:38] Speaker 04: pushes her out, and then he wrote in his police report, pulled her to the ground, and he landed with her knee, with his knee on her back. [00:30:47] Speaker 04: That is an extreme amount of force for someone that Mr. Thomas has seen do nothing, but essentially be a witness. [00:30:56] Speaker 04: That in and of itself is clearly established law of excessive force. [00:30:59] Speaker 04: That's an unprovoked attack. [00:31:01] Speaker 02: So you're saying that [00:31:04] Speaker 02: he could see her do nothing. [00:31:06] Speaker 02: Correct. [00:31:06] Speaker 02: Where is the support for that? [00:31:08] Speaker 04: That is, well, so it's two part, that he said he could, he heard the conversation between Deputy Nelson and Ms. [00:31:17] Speaker 04: Pachot, that he was, when he turned, he could hear her saying, hey, get off of my porch, get off of my porch, get off of my porch. [00:31:25] Speaker 04: And then he says he saw, which means we're at the beginning of the incident here, he saw Ms. [00:31:31] Speaker 04: Pachot come out and push her. [00:31:33] Speaker 02: But we don't believe that. [00:31:34] Speaker 04: We don't believe that, so we believe. [00:31:35] Speaker 00: But he says he saw. [00:31:37] Speaker 00: That's, I think, the key on page 791 and 792 of the transcript. [00:31:45] Speaker 00: He says he sees her standing in the doorway of her residence. [00:31:50] Speaker 00: They were three feet apart. [00:31:51] Speaker 00: And I observed Ms. [00:31:54] Speaker 00: Pichot pushed LPD Nelson, but of course, [00:31:57] Speaker 00: For our purpose, that may be true. [00:31:59] Speaker 00: A jury may find that is true. [00:32:01] Speaker 00: But for now, we have to believe your client that there was no push. [00:32:05] Speaker 00: So he must have seen a non-push. [00:32:08] Speaker 00: But he says he saw. [00:32:10] Speaker 04: But more importantly, he never says that he was partially obscured. [00:32:14] Speaker 04: He could see, right? [00:32:16] Speaker 04: This is in the transcript. [00:32:17] Speaker 04: He never mentioned not being able to see Ms. [00:32:19] Speaker 04: Pachot. [00:32:19] Speaker 04: He saw her on the doorway. [00:32:20] Speaker 04: So if you take up that time sequence where he can hear Ms. [00:32:23] Speaker 04: Pachot saying, get off my porch, and then [00:32:27] Speaker 04: And he says he pushed her, but at this point, Ms. [00:32:30] Speaker 04: Pachot says it different, right? [00:32:32] Speaker 04: Contradict says, yes, I'm telling her to get off my porch, and then I'm just standing there. [00:32:36] Speaker 04: And it's Nelson who grabs her. [00:32:38] Speaker 04: So assuming that that is true, that it was Nelson who grabbed her, then a jury could believe, well, Thomas didn't see Pachot push Nelson. [00:32:48] Speaker 04: What he saw was Nelson just go and try to pull this woman out. [00:32:51] Speaker 02: OK, so opposing counsel says that an officer has [00:32:56] Speaker 02: an ability to assume that proper procedures are being followed. [00:33:00] Speaker 02: And so that would be that Nelson wouldn't have done that unless there was a threatening gesture or something inside the house. [00:33:08] Speaker 02: So what is your response to that? [00:33:09] Speaker 02: What case says that's wrong? [00:33:11] Speaker 04: Every single case that exists in Granby Connor, and an officer has to perceive the threat themselves. [00:33:16] Speaker 04: So if they're not perceiving a threat in order to justify force, they can't just, if some officer is beating a person with a baton, do they just assume, oh, [00:33:25] Speaker 04: We're supposed to be beating this person with baton, or do they have to see the person actually resisting or doing something wrong in order to justify that force? [00:33:32] Speaker 00: Well, there may be some other situations. [00:33:35] Speaker 00: For example, in your situation, what if the officer who's using the baton says, this person is trying to kill me. [00:33:42] Speaker 00: They've got a knife or whatever. [00:33:44] Speaker 00: So it's maybe not see it. [00:33:46] Speaker 00: But there's other situations in which it would be reasonable, yes? [00:33:51] Speaker 04: Absolutely, Your Honor. [00:33:51] Speaker 04: If that was communicated to the officer, then the officer would be able to rely. [00:33:55] Speaker 04: What did the officer know at the time? [00:33:57] Speaker 04: Did Nelson turn and tell him, hey, she's got a gun, she's got a knife? [00:34:01] Speaker 04: No. [00:34:02] Speaker 04: He's seeing and hearing the conversation. [00:34:04] Speaker 04: He's seeing what's happening. [00:34:05] Speaker 04: And she's just, if you take my clients to set it back, she's just standing there. [00:34:13] Speaker 04: So he's seeing that. [00:34:14] Speaker 04: He's hearing that as he's closing the distance. [00:34:17] Speaker 04: So there's nothing that communicate to him that could justify force. [00:34:21] Speaker 04: And even when there's not a fight, and there's just his officer pulling her in her passively standing still, that does not justify force. [00:34:31] Speaker 04: So this is in a situation where he can assume that she's following proper procedure, because he has his own perception to rely on, and she hasn't communicated anything to him. [00:34:42] Speaker 04: It would suggest essentially that anytime an officer goes up and starts hitting someone, that any officer that's standing by and watching it can just say, well, I assume it was for a good reason, even if they themselves are perceiving no reason to use force. [00:34:56] Speaker 04: So I think the courts has been clear is that for officers to justify force, they themselves, we talk about this a lot in deadly force cases, they themselves have to perceive the threat or rely on a communication from another officer that would give them reason to believe that person is doing something. [00:35:13] Speaker 04: If, for example, he was walking up, [00:35:16] Speaker 04: And maybe Nelson doesn't see it, but Thomas sees her reaching for a gun. [00:35:21] Speaker 04: Then maybe he could use force, because he saw something that even Nelson couldn't see. [00:35:25] Speaker 04: But he has to see it, hear it. [00:35:27] Speaker 04: One of his five senses has to be working in order for him to justify force. [00:35:32] Speaker 04: And especially because he's, let's be honest, he enters her home without a warrant. [00:35:37] Speaker 04: So it's not even a small crime that he has to have exigent circumstances with a felony, or he has to have a warrant to enter into that house. [00:35:46] Speaker 02: I don't think that's an argument you made really in your brief. [00:35:48] Speaker 04: Well, I mean, I'm just saying if we're taking this hypothetical of what would give him the basis to start using force inside someone's house, and you asked opposing counsel, well, what basis could he assume? [00:36:01] Speaker 04: Well, whatever basis he had to assume would have to be enough for him to be even able to enter the house to start using force in the first place. [00:36:10] Speaker 04: Because using force or detaining or arresting someone [00:36:13] Speaker 04: out in the street is significantly different than entering into the residence and arresting them. [00:36:19] Speaker 04: And they don't have a warrant. [00:36:21] Speaker 04: What he knows tells him he shouldn't have used force. [00:36:23] Speaker 04: Let's just go over what he does know. [00:36:25] Speaker 04: He knows that she's a witness. [00:36:28] Speaker 04: He knows she's not suspected of any crimes. [00:36:31] Speaker 04: He knows that she's telling Deputy Nelson that she doesn't want to talk to her and that she needs to get off her porch. [00:36:39] Speaker 04: She knows that she's just standing there. [00:36:41] Speaker 04: He knows that suddenly Deputy Nelson attacks her. [00:36:45] Speaker 04: He knows that she's grabbing her. [00:36:47] Speaker 04: He knows that even though Deputy Nelson's attacking her, pulling her hair, that she's just standing still. [00:36:53] Speaker 04: So under that set of facts, it's clearly assumed. [00:36:56] Speaker 02: Does she say that, that she was just standing still with her arms down? [00:36:59] Speaker 04: Correct. [00:37:00] Speaker 04: Yes, she does. [00:37:00] Speaker 04: And Thomas had to enter in, get behind her, and then shove her forward. [00:37:07] Speaker 02: And what about the argument that he has worked with Nelson for a long time and knows that she follows procedures? [00:37:15] Speaker 04: I mean, everyone can do something wrong. [00:37:19] Speaker 04: Just because the officer has always followed the law doesn't mean that in this instance, therefore, she must have followed the law when he's watching her break the law. [00:37:27] Speaker 04: So what bearing does that have on anything? [00:37:30] Speaker 04: He's watching her break the law. [00:37:32] Speaker 04: You're not excused from breaking the law because before you followed it. [00:37:35] Speaker 02: So on your view of this, we ignore that it was obscured by the door? [00:37:40] Speaker 02: I mean, I didn't understand that he could see her with her arms down the way you're [00:37:44] Speaker 04: Acting cool well, so it just it's a temporal thing because he's closing the distance He did testify he could see her on the doorway that they were three feet apart and that she was telling him Deputy Nelson to leave So those are all those things are three things that he testified to as he's closing the distance because he's walking over because she's telling him to leave He's getting closer Presumably a jury could say he's probably being able to see better as well as he's drawing closer and so at this point [00:38:13] Speaker 04: All of a sudden, he just sees Deputy Nelson grab this woman, grab her by the hair, and start pulling her out of her house. [00:38:20] Speaker 00: Well, he does claim he can see them when he says, I saw the plaintiff push Nelson. [00:38:27] Speaker 00: And so we have to flip that because of the procedural posture, even if that turns out to be what a jury believes. [00:38:38] Speaker 00: I'm not sure that means that he could see that she wasn't moving or doing anything. [00:38:43] Speaker 00: But it does say that he couldn't see her pushing because she didn't push. [00:38:50] Speaker 04: Well, also, you know that she didn't push. [00:38:51] Speaker 04: You know why? [00:38:52] Speaker 04: Because right after they took her into custody, he put out a 415 disturbance of the peace. [00:38:57] Speaker 04: And then an hour and a half later, after he talked with Deputy Nelson, he switched it to a 243 assault on an officer. [00:39:05] Speaker 04: So based off of his contemporary perception of what was occurring, he put out over the air what he saw. [00:39:13] Speaker 04: It wasn't a battery, right? [00:39:15] Speaker 04: Because he said he saw a battery later at Depot. [00:39:18] Speaker 04: But when he was actually putting it out over the air, he put out a 415, which is a disturbance of the piece, someone yelling, being loud. [00:39:24] Speaker 04: And then an hour and a half later after he had concocted the story with Deputy Nelson, he switched it to a 243. [00:39:32] Speaker 04: So that shows you in and of itself that he never saw a push, that what he didn't say, he didn't put out over the air. [00:39:38] Speaker 04: you know, something like, oh, I see her going for a weapon or I see some sort of motion or anything. [00:39:43] Speaker 04: What he put out over the air, which is the truth, is he saw a woman witness at her home in her doorway telling a police officer to get off her porch. [00:39:52] Speaker 04: And we know from Durand v. City of Douglas that it doesn't matter how explicit you are towards an officer, even if it's rude, that is not a basis for force. [00:40:02] Speaker 04: And in fact, in that case, in Durand v. City of Douglas, the person [00:40:06] Speaker 04: cussed out the officer, flipped him off, was driving home. [00:40:09] Speaker 04: The officer followed the person home and waited for them to get home and then took him into custody. [00:40:15] Speaker 04: And the court said, you can't use this prior event to justify force later. [00:40:20] Speaker 04: If you wanted to arrest them then, you should have arrested them. [00:40:21] Speaker 04: And you can't use it as a basis for force. [00:40:23] Speaker 04: And this circuit, this Ninth Circuit, said, it's clearly established law that attacking a person based off of expletive language is not a basis for arrest, [00:40:35] Speaker 04: For force, for anything. [00:40:42] Speaker 04: If the court doesn't have any other questions, then I'll rest and ask the court to affirm the district clerk. [00:41:00] Speaker 01: Thank you very much. [00:41:01] Speaker 01: I just want to make a few points. [00:41:03] Speaker 01: I did cite two [00:41:06] Speaker 01: out of circuit court decisions that relate to assumptions. [00:41:11] Speaker 01: The Bland case, which I think Your Honor mentioned, was the shooting case. [00:41:15] Speaker 01: But there was also Garcia versus City of Hope, where, again, they witnessed the subject yelling and refusing to command, but yet they were all authorized to use force. [00:41:24] Speaker 01: Again, it's somewhat similar to this case. [00:41:27] Speaker 01: There was a lot of discussions of what [00:41:33] Speaker 01: be seen. [00:41:33] Speaker 01: You asked the right question. [00:41:35] Speaker 01: He could not see Ms. [00:41:37] Speaker 01: Pachote entirely. [00:41:37] Speaker 01: He did not know what she was doing. [00:41:40] Speaker 01: There was a reference to the officer has to see something before they use force. [00:41:45] Speaker 01: That is not true. [00:41:46] Speaker 01: That's the whole purpose of the collective knowledge doctrine, is that officers are entitled to rely on the knowledge that other officers have to justify their actions. [00:41:54] Speaker 01: So he knew going in, he was entitled to rely on what Nelson knew. [00:42:00] Speaker 00: I thought the collective knowledge doctrine related to things that were communicated to an officer. [00:42:06] Speaker 00: For example, one officer says, you know, there's a bank robbery and you need to arrest the guy in the red plaid shirt. [00:42:14] Speaker 00: You could rely on that, but you can't just kind of assume that the person in the red plaid shirt is a bank robber. [00:42:22] Speaker 00: So are there cases saying that collective knowledge is sort of sub-celestial? [00:42:30] Speaker 00: similar to Judge Friedland's question about whether seeing another officer use force without knowing more, either verbally or visually or in some way that justifies force by the second officer. [00:42:47] Speaker 01: I can't give Your Honor a citation right now, but I seem to recall reading cases where there was multiple officers involved. [00:42:52] Speaker 01: Not all of them heard things on the radio or observed things, and they were all allowed to rely on what was known [00:42:59] Speaker 01: to the group as a whole. [00:43:00] Speaker 02: But because there was a communication in advance, right? [00:43:02] Speaker 02: I don't remember any case that didn't have communications about the basis for the action. [00:43:08] Speaker 01: I can't, like I said, I can't give you a citation right now. [00:43:12] Speaker 01: I will say the last thing I would want to respond to is [00:43:16] Speaker 01: how Deputy Thomas designated the call. [00:43:19] Speaker 01: His testimony was that was just a placeholder. [00:43:21] Speaker 01: He hadn't talked to Deputy Nelson yet, so he didn't know what the exact story was. [00:43:26] Speaker 01: That's why he called it out as he did. [00:43:28] Speaker 01: It was just a placeholder. [00:43:29] Speaker 02: But would you agree that if he had seen some sort of dangerous conduct that he would have said something about that instead of saying disturbing the peace? [00:43:40] Speaker 01: He might have, but he didn't know. [00:43:42] Speaker 01: It just basically is a number that throws out. [00:43:45] Speaker 01: He can add it, change it. [00:43:46] Speaker 01: It has no significance. [00:43:48] Speaker 01: It doesn't mean anything in terms of what he can ultimately charge, what he can write in his report. [00:43:53] Speaker 01: It's just a placeholder to generate the system. [00:43:57] Speaker 01: You have to call out something so the system will then generate a report number. [00:44:02] Speaker 01: So basically, if you look at it, it's a new incident. [00:44:06] Speaker 01: So when he calls it out, the computer system says that there was a [00:44:10] Speaker 01: an incident number assigned to Ms. [00:44:11] Speaker 01: Pichotte's call, that was one incident. [00:44:14] Speaker 01: And when he called it out, that became another incident. [00:44:16] Speaker 01: So he's just triggering them administratively to create another incident. [00:44:21] Speaker 01: If the court has any other questions, I'd be happy to answer them. [00:44:24] Speaker 02: Thank you both sides for the helpful arguments. [00:44:26] Speaker 02: I ask you to reverse. [00:44:27] Speaker 02: This case is submitted.