[00:00:02] Speaker 02:
I may please the court Paul Hoffman for the appellants and in this matter.

[00:00:07] Speaker 02:
I'd like to reserve three minutes of if possible I want to focus at least initially on the Fourth Amendment analysis or I would we would argue lack of analysis in the district court's opinion and

[00:00:25] Speaker 02:
the district court basically did not go through the full Graham versus Connor analysis, took facts in the light most favorable to the defendants, did not deal with any of the facts in the light most favorable to the plaintiff, which is what is the standard.

[00:00:42] Speaker 02:
And I'd focus on the

[00:00:46] Speaker 02:
The main disputes, I think, which should resolve the appeal in our favor on that matter, which is the dispute over whether Mr. Wenman, at the end, extended his arm and pointed a gun.

[00:01:04] Speaker 01:
I understand your point based on the expert report, based on the autopsy report.

[00:01:13] Speaker 01:
Is there any dispute, first of all, that, to use your words, at the end your client raised and lowered the gun twice?

[00:01:24] Speaker 02:
I think there's testimony that he raised the gun.

[00:01:29] Speaker 02:
I think it's not unclear exactly what that means.

[00:01:33] Speaker 01:
But the testimony, that's what the officers said.

[00:01:38] Speaker 01:
He raised it twice, was told to put it down, and did.

[00:01:43] Speaker 02:
But I think there's a difference.

[00:01:44] Speaker 02:
In other words, he

[00:01:47] Speaker 02:
manipulated the gun for four hours.

[00:01:50] Speaker 02:
There's testimony about the fact that he had the gun up at times.

[00:01:56] Speaker 02:
He was told to lower it.

[00:01:58] Speaker 02:
He was told to put it in places.

[00:02:01] Speaker 02:
The reason that Officer Jamison gave to take the shot

[00:02:07] Speaker 02:
was that he had his arm extended and pointed it at the officers.

[00:02:12] Speaker 02:
He drew a diagram of that.

[00:02:14] Speaker 01:
That's what he said.

[00:02:15] Speaker 01:
The testimony was there were two things, put the gun down after he was told to, and then there was something

[00:02:24] Speaker 01:
a third time, which you dispute what it was, but there was something that happened the third time.

[00:02:30] Speaker 02:
What Officer Jamison says is that he saw the gun come up and down quickly, up and down quickly, and then he waited for it to happen again so that he could shoot him.

[00:02:43] Speaker 02:
He never communicated that that was a problem to anyone there, even though under the policies of the North Las Vegas Police Department, there was a tactical commander.

[00:02:57] Speaker 02:
He didn't say, I think there's a problem here.

[00:03:01] Speaker 02:
He was a football field away.

[00:03:03] Speaker 02:
There were officers in a Bearcat 20 yards away.

[00:03:07] Speaker 02:
And in fact, Sergeant Lawrence from the other Bearcat testified that he didn't see any officers in danger.

[00:03:15] Speaker 03:
But on the specific question of whether Mr. Wenman in fact raised the gun that third time, we have Jameson's testimony that he did.

[00:03:30] Speaker 03:
What is the best evidence that, or is there any evidence that he didn't?

[00:03:34] Speaker 02:
Well, the main evidence, I think, is that whatever he did that third time, by the time he was shot, the gun was down, his arm was down on the side because he was shot through the torso and it obliterated his elbow.

[00:03:48] Speaker 02:
In other words, if the gun was like this when the shot was fired, it wouldn't have hit him.

[00:03:53] Speaker 00:
But doesn't the coroner's report support that his arm was bent at the elbow, if not at the shoulder?

[00:03:59] Speaker 02:
It's not clear about that.

[00:04:01] Speaker 02:
What it's clear is that it

[00:04:04] Speaker 02:
that the elbow was at his side.

[00:04:06] Speaker 02:
But that was true for most of the four hours.

[00:04:08] Speaker 00:
But sir, it doesn't mean, this is important at least on my scorecard.

[00:04:11] Speaker 00:
OK, yes.

[00:04:13] Speaker 00:
I think there's physical evidence that supports the reading that the elbow was bent at his side.

[00:04:20] Speaker 00:
But I take that to mean that the gun had been raised.

[00:04:23] Speaker 00:
And I appreciate your point that that had been true for hours on and off, and that the folks closer to him didn't think he was going to shoot.

[00:04:30] Speaker 00:
But that is, it seems to me to be an important point because the person who fired that shot can be wrong.

[00:04:36] Speaker 00:
As long as he's not unreasonable, he's still entitled to qualified immunity.

[00:04:39] Speaker 00:
So what is your response to that, please?

[00:04:41] Speaker 02:
I think that, well, I don't know if you want me to get to qualified immunity first.

[00:04:47] Speaker 00:
I think that the issue... I'm just trying to get to the point.

[00:04:49] Speaker 00:
I'm just trying to get the point.

[00:04:50] Speaker 00:
It seems to me whether his arm was straight out in front of him or not.

[00:04:55] Speaker 00:
If that elbow is raised and there's physical evidence to confirm that,

[00:05:00] Speaker 00:
Then why wouldn't we conclude that the gun was raised?

[00:05:03] Speaker 02:
But the gun, in terms of where the gun was on his body, it moved around the whole time.

[00:05:09] Speaker 02:
None of the other officers thought there was a threat.

[00:05:13] Speaker 02:
None of them.

[00:05:13] Speaker 00:
Yes, but that's not the question.

[00:05:16] Speaker 00:
The question is whether the person who pulled the trigger

[00:05:18] Speaker 03:
Reasonably believe that there was a danger to the officers isn't it isn't that the question well Yes, in a sense, but the thing is that he didn't know where the other offices were they were undercover They were in a bearcat those two statements I think there's a contradiction there because what matters to the objective reasonableness what matters is the objective reasonableness of

[00:05:41] Speaker 03:
Officer Jameson's actions right so we have to look at what he knew And whether the other officers were or were not undercover Is there any evidence that he knew that they were undercover?

[00:05:55] Speaker 02:
He knew that there was a bearcat which the purpose of which was to keep them undercover right, but I mean we can He didn't know one with a diagram right at the time he shot and

[00:06:06] Speaker 02:
He didn't know even where they were.

[00:06:07] Speaker 03:
That seems to be a significant fact and not one that helps you.

[00:06:16] Speaker 03:
Because if he doesn't know where they are, then he doesn't know that they're undercover.

[00:06:21] Speaker 03:
And he knows that Mr. Wenman is pointing a gun in the general direction of where there are officers.

[00:06:28] Speaker 03:
If he doesn't know that they're undercover, isn't it reasonable for him to perceive that as a threat?

[00:06:32] Speaker 02:
No, I don't think it's reasonable.

[00:06:35] Speaker 02:
There's a perimeter so that civilians are gone.

[00:06:37] Speaker 02:
They've been talking to him for four hours.

[00:06:39] Speaker 02:
He knows that there's a less lethal operation that's about to be done.

[00:06:46] Speaker 02:
He can't see any officer in danger.

[00:06:49] Speaker 02:
There's a bearcat, the purpose of which is for everybody to be undercover.

[00:06:54] Speaker 02:
He should know that.

[00:06:54] Speaker 02:
That's part of the procedure.

[00:06:56] Speaker 02:
He knows that there's a tactical commander with people on eyes, 20 yards away from this guy, who could tell him to shoot if there was a danger.

[00:07:07] Speaker 02:
He could have said, you know, I see this guy raising his arm in a funny way.

[00:07:12] Speaker 02:
I think we should shoot him.

[00:07:14] Speaker 02:
Give him a warning.

[00:07:15] Speaker 01:
Why not give him a warning?

[00:07:18] Speaker 01:
If we were to look at the second prong of qualified immunity.

[00:07:24] Speaker 01:
Yes.

[00:07:25] Speaker 01:
The facts as I understand them as undisputed are he had fired a shot.

[00:07:33] Speaker 01:
He'd shot himself.

[00:07:34] Speaker 02:
Well, he started to shut four hours before.

[00:07:37] Speaker 01:
Yes.

[00:07:37] Speaker 01:
He had told a civilian, it's going to get bad.

[00:07:41] Speaker 01:
You got to go.

[00:07:42] Speaker 01:
He had been told multiple times to give up the gun, and he refused.

[00:07:46] Speaker 01:
This is not going to happen.

[00:07:48] Speaker 01:
I'm not going to give it up.

[00:07:49] Speaker 01:
I have nothing to live for.

[00:07:50] Speaker 01:
There was on a car.

[00:07:51] Speaker 01:
I don't know.

[00:07:54] Speaker 01:
I don't know.

[00:07:55] Speaker 01:
I don't know.

[00:07:59] Speaker 02:
I don't know.

[00:08:01] Speaker 01:
I don't know.

[00:08:04] Speaker 01:
I don't know.

[00:08:07] Speaker 01:
Then I'll take that back.

[00:08:09] Speaker 01:
And he refused to give it up and said, I have nothing to live for.

[00:08:14] Speaker 01:
And at the end, I think the facts are he raised the gun two times and did something the third time.

[00:08:22] Speaker 01:
If you take my view of the facts as correct, even in the light most favorable to your client, what case would have put the officers on notice other than a high level of generality

[00:08:37] Speaker 01:
that they couldn't shoot.

[00:08:38] Speaker 02:
Well, from our standpoint, the line of cases that starts with Harris versus Rodrick, which is a sniper case where this court said, you can't kill somebody because they have a gun.

[00:08:50] Speaker 02:
There has to be an immediate threat, and you can't kill somebody just because they've got a gun.

[00:08:55] Speaker 02:
And then I would follow that with George and Kernel.

[00:08:59] Speaker 02:
Now in Kernel, you've got officers coming into a living room with somebody that they say has a gun and has a gun.

[00:09:06] Speaker 02:
And this court said, no, there's a dispute about whether there's an immediate threat.

[00:09:12] Speaker 02:
The fact that he had a gun, even though you're not undercover and you're in a living room, is not enough.

[00:09:18] Speaker 02:
to take that away from a jury to decide.

[00:09:23] Speaker 02:
In Georgia, it was the same thing.

[00:09:25] Speaker 02:
Coming into somebody's house without cover, the person's got a gun.

[00:09:31] Speaker 02:
It's not enough to kill him.

[00:09:32] Speaker 02:
There's got to be proof of an immediate threat that they're actually going to be able to use that gun against you.

[00:09:39] Speaker 02:
There's no evidence of that here.

[00:09:41] Speaker 02:
The evidence is that they were undercover.

[00:09:43] Speaker 02:
I would take a state of Lopez as another case in this line of cases where you've got the 15-year-old with the toy AK-47, and the officers don't know if it's an AK-47.

[00:09:54] Speaker 02:
The kid starts turning around, and they kill him.

[00:09:57] Speaker 02:
And this court said, no, that's not enough.

[00:10:01] Speaker 02:
The fact that he's got an AK, what you think is an AK-47 and his turning is not enough to kill him.

[00:10:08] Speaker 02:
What you have to do is you have to ascertain that there's an immediate threat.

[00:10:12] Speaker 02:
And I would say those are a fortiori cases to this case.

[00:10:16] Speaker 02:
This is a sniper who's

[00:10:18] Speaker 02:
A football field away with another sniper next to him that doesn't shoot, it doesn't see that.

[00:10:24] Speaker 03:
Everybody else on the scene doesn't support the fact that his... Although Lee, I mean the other sniper, Lee, I believe in his interview after the incident said that he was a fraction of a second away from taking the shot himself, didn't he?

[00:10:38] Speaker 03:
I think it's important to say this.

[00:10:53] Speaker 02:
The police

[00:10:57] Speaker 02:
did all the right things in accordance with this court's teachings, right?

[00:11:02] Speaker 02:
They didn't shoot.

[00:11:03] Speaker 02:
They had guys with guns in back of the bearcat.

[00:11:07] Speaker 01:
But to go to Judge Miller's point, I'm looking at 4ER 637.

[00:11:13] Speaker 01:
When he saw Wenman raise the gun the final time, he told Jameson, gun, gun, gun, gun.

[00:11:20] Speaker 01:
And that's when Jameson shot.

[00:11:23] Speaker 01:
And Lee was adjusting when Jameson took the shot.

[00:11:26] Speaker 01:
And Lee said he was about a quarter of a second from taking the shot himself and would have done it if Officer Jameson didn't shoot first.

[00:11:36] Speaker 02:
The forensic evidence, and if you go back to Gonzalez versus City of Anaheim and all the cases that this court has said, when the person who's dead is not there to testify, he can't tell you now that he had his gun at the side.

[00:11:49] Speaker 02:
They thought that he shot himself, which suggests that when he was shot, the gun was pointed down.

[00:11:56] Speaker 02:
And so there's a disputed fact about what was going on.

[00:11:59] Speaker 02:
Sure, he was moving around with a gun.

[00:12:02] Speaker 02:
But there's testimony in the record by all the people on the scene that they did not feel threatened.

[00:12:08] Speaker 01:
Is there any dispute of fact that Officer Lee said right before Jameson shot, gun, gun, gun, gun?

[00:12:21] Speaker 02:
That's the testimony.

[00:12:22] Speaker 02:
I don't have a refutation of that.

[00:12:25] Speaker 02:
But I think that that testimony, if I recall it correctly, is that the

[00:12:31] Speaker 02:
Lee was not saying, shoot, shoot, shoot.

[00:12:34] Speaker 02:
He was saying, gun, gun, gun.

[00:12:36] Speaker 02:
Now, he had a gun for four hours.

[00:12:39] Speaker 02:
I mean, if you look at the tapes, right before he shot, the negotiator's talking to him.

[00:12:46] Speaker 02:
They paused the less lethal operation, which, by the way, included a potential for lethal force.

[00:12:53] Speaker 02:
What they were going to do is they were going to throw a flashbang, try to get the gun out of his hand, and they were going to send the dog in to make sure he couldn't get it.

[00:13:01] Speaker 02:
And then they were going to take him into custody.

[00:13:03] Speaker 02:
They knew from the very beginning that this was a mentally disturbed guy who was not threatening them.

[00:13:09] Speaker 02:
He never threatened anybody, never, not once.

[00:13:13] Speaker 02:
He said he was pro-police.

[00:13:15] Speaker 02:
He was obviously in an existential crisis.

[00:13:19] Speaker 02:
And so when they told him, for example, at the end,

[00:13:23] Speaker 02:
you're coming too close to us, go back to the tree.

[00:13:25] Speaker 02:
He went back to the tree and they paused the less lethal operation so that they could continue to talk to him.

[00:13:33] Speaker 02:
And then Jamison took it on himself to kill him.

[00:13:36] Speaker 00:
We have case law about the duty to warn if it's practicable to warn.

[00:13:40] Speaker 00:
The duty to warn before using deadly force if it's practicable to warn.

[00:13:44] Speaker 00:
And you mentioned that earlier in your comments and I would like to hear

[00:13:48] Speaker 00:
who you think was going to do the warning?

[00:13:50] Speaker 00:
What's the interval here where that could have happened, please?

[00:13:52] Speaker 02:
Jameson was in contact by radio with people in the Bearcats, both of them.

[00:13:57] Speaker 02:
And so if he said, look, I think this raising of the gun thing is dangerous, he should have communicated that right away.

[00:14:05] Speaker 02:
He said, give him a warning.

[00:14:06] Speaker 02:
If he does it again, he's going to get shot.

[00:14:08] Speaker 00:
Well, who was going to give him a warning?

[00:14:09] Speaker 00:
They could have said.

[00:14:10] Speaker 00:
They were close enough to do that, but not the people who were, not the individual who actually shot him.

[00:14:17] Speaker 00:
He was in communication.

[00:14:20] Speaker 02:
He understood.

[00:14:21] Speaker 02:
He could have communicated to them.

[00:14:23] Speaker 02:
He was supposed to be.

[00:14:24] Speaker 02:
He was there for observation and intelligence.

[00:14:26] Speaker 02:
That was the whole part of the sniper's role.

[00:14:28] Speaker 00:
How was he going to communicate before shooting?

[00:14:30] Speaker 00:
He was a football field away.

[00:14:31] Speaker 00:
He was a football field away.

[00:14:33] Speaker 02:
So what you're suggesting is that the folks in the bear pack... Well, but in other words, he could have radioed to the people that were 20 yards away.

[00:14:38] Speaker 02:
See, I'm sorry.

[00:14:39] Speaker 00:
No, I appreciate that.

[00:14:40] Speaker 00:
I think that's the way it would have... You don't owe me an apology.

[00:14:43] Speaker 00:
This is a very frustrating and tragic case.

[00:14:45] Speaker 00:
But it seems to me that he would have had to do that.

[00:14:48] Speaker 00:
He would have had to communicate with the folks in the aircraft who were trying to communicate with the decedent who had refused a cell phone.

[00:14:54] Speaker 00:
And so they were doing the best they could.

[00:14:55] Speaker 00:
And for four hours, they were doing pretty well.

[00:14:58] Speaker 00:
I think that's right.

[00:14:58] Speaker 00:
I think that's right.

[00:14:59] Speaker 00:
Heroic efforts.

[00:15:01] Speaker 00:
But I'm trying to figure out in the moment

[00:15:02] Speaker 00:
where he makes this observation, gun, gun, gun, gun, and your position is that that's the moment, right?

[00:15:11] Speaker 02:
It was feasible for one thing.

[00:15:13] Speaker 02:
If they really thought that there was danger by various things he was doing all along, they had four hours to give him a warning.

[00:15:19] Speaker 02:
What they did is the right thing.

[00:15:21] Speaker 02:
They were trying to save his life, right?

[00:15:23] Speaker 02:
That's what they were trying to do.

[00:15:25] Speaker 02:
And in fact, all the people on the scene, the people who were supposed to make the decisions,

[00:15:30] Speaker 02:
didn't think that there was any danger to people and that they could continue to negotiate with them and if they couldn't finish the negotiation they could do this less lethal operation and take him into custody without killing him.

[00:15:42] Speaker 00:
Your strongest argument that his decision that there was immediate danger to the officers

[00:15:48] Speaker 02:
Excuse me.

[00:15:49] Speaker 00:
Your strongest argument that the person who pulled the trigger made an unreasonable determination.

[00:15:54] Speaker 00:
Yes.

[00:15:54] Speaker 00:
Hold on.

[00:15:54] Speaker 00:
Hold on.

[00:15:55] Speaker 00:
I haven't asked the question yet.

[00:15:56] Speaker 00:
I'm sorry.

[00:15:57] Speaker 00:
That's all right.

[00:15:57] Speaker 00:
We've taken you far afield in a lot of directions.

[00:16:00] Speaker 00:
This is an important case.

[00:16:01] Speaker 00:
I just want a concise statement, please, of your strongest argument that the person who pulled the trigger made an unreasonable determination when he decided that he thought other officers were in imminent danger.

[00:16:12] Speaker 00:
What's your very best shot?

[00:16:16] Speaker 02:
In order to take a shot, you have to have facts to sustain whether there's danger.

[00:16:22] Speaker 02:
He had no facts to sustain danger other than the movement of the gun.

[00:16:29] Speaker 02:
And in fact, all of the other officers didn't feel that danger and were undercover.

[00:16:36] Speaker 02:
And it was unreasonable for him to take the shot without getting more information, for one thing, which he could have done.

[00:16:42] Speaker 02:
He could have communicated with them what he was supposed to do and say,

[00:16:47] Speaker 02:
Are the negotiations failing?

[00:16:49] Speaker 02:
That was one of the other things he thought, which was completely not true, because they were continuing to negotiate at the point he shot him.

[00:16:56] Speaker 02:
From an objective standpoint, a reasonable officer would not take that shot outside the chain of command, having been given an order not to take independent action, without communicating, without a warning, without knowing anybody was in danger, and must have had a reasonable assumption that the Bearcats were there for cover.

[00:17:17] Speaker 02:
That's what they're there for.

[00:17:20] Speaker 00:
We have taken you considerably over.

[00:17:22] Speaker 00:
Thank you for your patience with our questions.

[00:17:24] Speaker 00:
When you come back, you can plan.

[00:17:26] Speaker 00:
We'll put a couple more minutes on the clock for you if you need it.

[00:17:30] Speaker 00:
We'll hear from opposing counsel, please.

[00:17:55] Speaker 04:
Judge Bennett, Judge Christin, Judge Miller, Mr. Hoffman, may it please the court.

[00:18:00] Speaker 04:
My name is Frank Todri.

[00:18:01] Speaker 04:
I'm appearing for the defendant at police, the city of North Las Vegas, referenced as CNLV within the briefing.

[00:18:09] Speaker 04:
Because this case was decided on summary judgment, our standard is de novo.

[00:18:13] Speaker 04:
We would express our gratitude to the court for permitting us to present our briefs and oral arguments.

[00:18:18] Speaker 04:
Primarily at issue is Judge Mayhands order granting summary judgment, ECF number 79 from September, 2023.

[00:18:26] Speaker 04:
We would ask this panel to affirm the decision, return it to the district court with no further instructions.

[00:18:33] Speaker 00:
What is your response if we could focus you on opposing counsel's strongest argument, which is that it was unreasonable.

[00:18:39] Speaker 00:
I'm paraphrasing, but you heard it.

[00:18:41] Speaker 00:
It was unreasonable to determine or suspect that other officers were in imminent danger because you couldn't see any other officers.

[00:18:48] Speaker 00:
And after all, there were bearcats there.

[00:18:49] Speaker 00:
And the assumption would be if they're following protocol, those officers aren't exposed.

[00:18:55] Speaker 00:
What about that?

[00:18:56] Speaker 04:
Correct.

[00:18:57] Speaker 04:
We would suggest that the line chair of case law asks our courts and our district court judges to consider the totality of the circumstances at that point.

[00:19:07] Speaker 04:
At that point, while Judge Mayhand did not directly put out his list of findings and the findings of cat fact query, he did throughout his order incorporate several factors in which he considered undisputed.

[00:19:21] Speaker 04:
So to wit, I would suggest that at the exact circumstances of Officer Jameson taking the shot, he was aware of all the totality of it.

[00:19:35] Speaker 04:
Wenman had had the handgun.

[00:19:37] Speaker 04:
He had shot the gun earlier.

[00:19:38] Speaker 04:
He had fired at least one round in public.

[00:19:41] Speaker 04:
There was apartment buildings around.

[00:19:44] Speaker 04:
But most importantly, he raised the gun three times.

[00:19:48] Speaker 04:
And at that point, Officer Wenman, in that split second, perceived an imminent danger from where he was stationed to his other officers in regards to the gun being raised.

[00:19:58] Speaker 00:
Can you focus right on that point?

[00:19:59] Speaker 00:
Because my question just went to that last point.

[00:20:01] Speaker 00:
I asked the opposing counsel to address that.

[00:20:03] Speaker 00:
So did Judge Miller.

[00:20:05] Speaker 00:
Was it if he couldn't see any other officers and he knows what the protocol is and he knows the officers are in the bearcats and those of course are They're not bulletproof.

[00:20:14] Speaker 00:
We're certainly aware of that, but they're the intent is to provide cover Why was it reasonable for him to suspect that officers were in danger if he couldn't see any in danger?

[00:20:25] Speaker 04:
correct

[00:20:26] Speaker 04:
He well at this point, the 2 the 2 primary probably the 2 quote best evidences on that regards are probably the officer Lee the officer next to him the other sniper and.

[00:20:39] Speaker 04:
Officer Jameson himself.

[00:20:42] Speaker 04:
And we must take, I would suggest that Judge Mahan took account of their testimony and reports that at the moment of the gun being raised, he believed that his fellow officers were in danger, even without necessarily seeing the bearcat, but based upon the movement of

[00:21:01] Speaker 04:
of Mr. Wenman.

[00:21:02] Speaker 04:
And of course, we acknowledge that the exact shooting was not caught on camera because the body cameras essentially smack dab in the middle of the chest.

[00:21:10] Speaker 04:
So the other officers are taking cover at the time.

[00:21:13] Speaker 03:
But I think the point of, I don't know if it was the point of the questionnaire.

[00:21:17] Speaker 03:
My question is the movement of the hand and the raising of the gun.

[00:21:22] Speaker 03:
is an imminent threat to anyone who is within a line of sight of the gun.

[00:21:28] Speaker 03:
It is not an imminent threat to anyone who is safely ensconced behind the bullet-resistant vehicle.

[00:21:35] Speaker 03:
So what is there about what Jameson knew that would lead him to think that there was an imminent threat in that moment?

[00:21:49] Speaker 04:
I believe that if we look back on his deposition and we consider how he had drawn the diagram to present what he perceived as the area of danger where his other officers were.

[00:22:00] Speaker 04:
He had suggested that at the time when the gun was raised, he believed his officers were in danger, and that is why he took the shot.

[00:22:10] Speaker 04:
And I believe that our case law has suggested that... Well, if we look at the... But right there, that's what Judge Miller and I were both asking.

[00:22:17] Speaker 00:
Why wasn't reasonable for him to think that other officers were in danger if he couldn't see any within the line of sight, as Judge Miller put it.

[00:22:25] Speaker 04:
I think it's kind of just the total of it all.

[00:22:32] Speaker 04:
Mr. Wenman had refused to drop his gun over 50 times.

[00:22:36] Speaker 04:
He had violated four statutory criminal laws during that standoff.

[00:22:41] Speaker 04:
He was absolutely resistive.

[00:22:44] Speaker 04:
While he was not necessarily

[00:22:46] Speaker 04:
waving the gun at everyone and jumping all around, he disobeyed at least 50 orders from that navigator.

[00:22:54] Speaker 04:
He refused to take the cell phone to talk with, not the navigator, the negotiator.

[00:22:59] Speaker 04:
He refused to take the cell phone to talk with the negotiator.

[00:23:02] Speaker 04:
He took water, but there was no indication that there was any progress with this person.

[00:23:08] Speaker 04:
And also, from Jameson's perspective, it did not seem

[00:23:12] Speaker 04:
that there was a chance, as it were, to use the least intrusive means that my colleague suggested.

[00:23:19] Speaker 01:
That's all.

[00:23:20] Speaker 01:
I'm not sure you've really answered Judge Christin's question, but let me read to you from Officer Jamison's deposition for ER 782.

[00:23:35] Speaker 01:
question.

[00:23:37] Speaker 01:
And it's page 174.

[00:23:39] Speaker 01:
Well, you couldn't see the officers, so you don't know whether he presented it at the officers, right?

[00:23:45] Speaker 01:
Answer, right.

[00:23:47] Speaker 01:
But I know where they, like the area they were in.

[00:23:50] Speaker 01:
Question, that you believe they were in.

[00:23:53] Speaker 01:
Answer, yes.

[00:23:54] Speaker 01:
But from question, but from what you could see, he was aiming at the bear cat.

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

[00:24:01] Speaker 01:
Right.

[00:24:03] Speaker 01:
If you can explain why, if he thought that the third time the decedent raised the gun, he was aiming at the bear cat, that that meant the danger was imminent for him to fire and kill the decedent.

[00:24:33] Speaker 04:
I'm reviewing judgment, hence findings, just on the same.

[00:24:37] Speaker 04:
And excuse me.

[00:24:47] Speaker 04:
When he raised the, excuse me, when Wenman raised the gun for the third time, there was a pattern of never relinquishing this weapon or serenading the police presence.

[00:24:57] Speaker 00:
I'm sorry, pattern, I couldn't understand the thing you said.

[00:25:00] Speaker 04:
Oh, excuse me.

[00:25:00] Speaker 00:
There was a pattern of what?

[00:25:02] Speaker 04:
of Mr. Wenman never voluntarily relinquishing this weapon or surrendering to the peace presence.

[00:25:07] Speaker 04:
With the third, surrendering to the peace presence.

[00:25:09] Speaker 00:
Thank you, thank you very much.

[00:25:10] Speaker 04:
I should have probably brought a glass of water up here with me for this.

[00:25:14] Speaker 04:
But the only requirement was for Wenman to peacefully conclude the confrontation.

[00:25:20] Speaker 04:
That is, we can only look at the exact testimony that

[00:25:25] Speaker 04:
from Officer Jameson suggesting that he believed that the danger was eminent at that very point.

[00:25:32] Speaker 04:
A barricade is armored, but it's not a traditional barricade.

[00:25:35] Speaker 04:
And this is important, because especially when we compare it to the other cases in the QI analysis that both sides presented, this was a unique situation.

[00:25:49] Speaker 04:
the police having non-traditional Bearcat guards, an open area, possible civilian danger with the apartment complexes.

[00:26:01] Speaker 04:
And so he had to make that, Officer Jameson had to make that decision that his officer's lives are in danger at that moment.

[00:26:10] Speaker 04:
And if you listen to, sorry, the negotiator, she appears to, her last sentences are kind of along the lines of,

[00:26:19] Speaker 04:
or almost sounding panic.

[00:26:20] Speaker 04:
So she also suggests that something was going on at the time that appeared to be a volatile moment.

[00:26:26] Speaker 03:
So it's undisputed, is it not, that both one man and at least some of the officers behind the barricade were moving around to some degree during all of this, right?

[00:26:36] Speaker 03:
Yes.

[00:26:36] Speaker 03:
And Jameson had a fairly narrow field of view through his scope.

[00:26:42] Speaker 03:
Is that right?

[00:26:43] Speaker 03:
Correct.

[00:26:45] Speaker 03:
I mean, we can look, I mean, I'm looking at the, there's a diagram at 633 of the record.

[00:26:52] Speaker 03:
And, you know, sort of looking at the diagram, it's a fairly straightforward exercise in trigonometry to figure out, like, if there would have been a line of sight between where Mr. Menman was and where the officers behind the bearcat were.

[00:27:05] Speaker 03:
But I suppose Jameson would not have been able, necessarily, to figure that out at the moment.

[00:27:11] Speaker 03:
Is that fair?

[00:27:15] Speaker 04:
correct with one note, Judge Miller, that Jameson was

[00:27:23] Speaker 04:
familiar with and knew that each time that Wenman was continually shifting positions, this was forcing his fellow officers to also move and shift their positions.

[00:27:32] Speaker 04:
So based upon the four hours, we would suggest there's a natural supposition that these movements by Wenman are concurrently going to require movement by the officers, almost in that Jessica.

[00:27:44] Speaker 03:
That seems not to help you very much.

[00:27:49] Speaker 03:
I mean, if that's true,

[00:27:51] Speaker 03:
then if what you're saying is that Jameson should have known that the officers were constantly shifting their positions so as to stay behind the bearcat, then I really don't see what the imminent threat is.

[00:28:06] Speaker 03:
I think what you just said is like he would have known that as Mr. Wenman moved, the officers were moving so that they were always behind the bearcat.

[00:28:13] Speaker 03:
And if that's true, then how are they in danger?

[00:28:16] Speaker 03:
Because they have to expose themselves in each movement.

[00:28:20] Speaker 00:
I think the point is that they were able to continue to take cover.

[00:28:25] Speaker 00:
Wouldn't that be an equally reasonable inference?

[00:28:30] Speaker 04:
We would suggest there is a danger to each movement because they're taken out of their safe zone, as it were.

[00:28:38] Speaker 04:
And so we think that there's a hindsight 2020 analysis,

[00:28:51] Speaker 04:
Our most important point to counter my colleague Mr. Hoffman is that in this split second, both of the snipers believed there to be an imminent danger to their officers and were going to take the shot.

[00:29:04] Speaker 04:
And there was something obviously about this third raising of the gun that

[00:29:10] Speaker 04:
that moved something different.

[00:29:11] Speaker 04:
Perhaps this is becoming exhaustive four hours after.

[00:29:14] Speaker 04:
This many times he can respond.

[00:29:17] Speaker 04:
Perhaps it was that it wasn't going to be reasonable to put the less intrusive.

[00:29:20] Speaker 04:
A canine thing would have been a suicide mission.

[00:29:22] Speaker 00:
Can I focus on that one second and just ask you in the bit of time left to circle back to Judge Miller's question in what you're calling the split second?

[00:29:31] Speaker 00:
Yes.

[00:29:33] Speaker 00:
What is the record evidence about what

[00:29:39] Speaker 00:
what he could see.

[00:29:41] Speaker 00:
He was looking through the scope, right?

[00:29:42] Speaker 00:
What could he see?

[00:29:43] Speaker 00:
What could he hear?

[00:29:44] Speaker 00:
What exactly did he have?

[00:29:46] Speaker 00:
What information did he have right then?

[00:29:49] Speaker 04:
Correct.

[00:29:49] Speaker 04:
I think he had the essential knowledge of where everybody was positioned.

[00:29:58] Speaker 04:
Anything that was being put over the radio.

[00:30:01] Speaker 00:
Was anything being put over the radio at that moment other than gun, gun, gun, gun?

[00:30:04] Speaker 04:
No.

[00:30:05] Speaker 04:
Other than that.

[00:30:05] Speaker 04:
At that moment, no.

[00:30:06] Speaker 00:
OK.

[00:30:06] Speaker 00:
That's what I'm asking about.

[00:30:07] Speaker 00:
OK?

[00:30:08] Speaker 00:
And he's looking through the scope.

[00:30:09] Speaker 00:
And what could he see through the scope?

[00:30:11] Speaker 00:
We'll see if you're as good at trigonometry as Judge Miller.

[00:30:14] Speaker 04:
What could he see?

[00:30:19] Speaker 04:
Mr. Wenman, from what I'm ascertaining and remembering from the deposition was in the scope was Wenman and probably about 10 feet around him.

[00:30:30] Speaker 00:
All right.

[00:30:31] Speaker 00:
And the bearcat was opposing counsel said 20 feet or yards.

[00:30:37] Speaker 04:
Anyway, a lot closer.

[00:30:39] Speaker 00:
I believe it was feet.

[00:30:40] Speaker 04:
OK.

[00:30:42] Speaker 04:
Allow a mistake.

[00:30:43] Speaker 00:
OK.

[00:30:43] Speaker 00:
And what else do you think he knew then?

[00:30:46] Speaker 00:
Because we're trying to figure out what a reasonable officer would have known or done at that moment.

[00:30:49] Speaker 00:
What other information did he have?

[00:30:53] Speaker 04:
He knew it was a real gun unloaded, one thing that differentiated it from some of the cases.

[00:30:58] Speaker 04:
We knew he had fired around in public.

[00:31:01] Speaker 04:
We knew he was, while not within the 20 foot barrier,

[00:31:06] Speaker 04:
to apartment complexes.

[00:31:08] Speaker 04:
We knew he had officers and bear cats around him.

[00:31:12] Speaker 04:
We knew the apartment complex was less than 300 feet.

[00:31:17] Speaker 04:
The apartment complex was less than 300 feet.

[00:31:20] Speaker 04:
OK.

[00:31:21] Speaker 00:
He knew, didn't he, that this was an ongoing emergency where there was concern that this person was having some kind of a psychotic episode?

[00:31:28] Speaker 00:
Correct.

[00:31:29] Speaker 00:
OK.

[00:31:30] Speaker 04:
And anything else that we're overlooking?

[00:31:34] Speaker 04:
We knew he had turned down the cell phone, took water, disengaged about 50 times with the negotiator, raised his arm, extended it.

[00:31:47] Speaker 04:
And that's probably the main undisputed facts for the ones that, while Judge Mayhem didn't have a list, if one is to intersperse throughout his order.

[00:31:58] Speaker 04:
Those are probably the ones that you get sides to, exactly.

[00:32:02] Speaker 04:
He kind of does a general incorporation, as it were.

[00:32:04] Speaker 00:
Yes, I think that's right.

[00:32:05] Speaker 00:
Is there any further questions, Judge Bennett?

[00:32:09] Speaker 01:
Just one thing.

[00:32:10] Speaker 01:
I can't find it right now.

[00:32:14] Speaker 01:
And this is my recollection of the record, and you can correct me if I'm wrong.

[00:32:20] Speaker 01:
That Officer Jameson did not hear the other officers say, gun, gun, gun, gun.

[00:32:27] Speaker 01:
Am I right on that?

[00:32:33] Speaker 04:
I believe you are correct on that.

[00:32:34] Speaker 04:
It was going on the radio.

[00:32:36] Speaker 00:
Wait a minute.

[00:32:39] Speaker 00:
I thought in response to my question you said that he could hear what was on the radio traffic, and I thought that statement was on the radio traffic.

[00:32:45] Speaker 00:
Do I have that wrong?

[00:32:46] Speaker 04:
It seems congruous.

[00:32:49] Speaker 04:
It seems simultaneous.

[00:32:52] Speaker 04:
Gun, gun, gun.

[00:32:53] Speaker 04:
So I think the record's slightly unclear as to whether he actually

[00:32:57] Speaker 01:
I thought there was something in the record where he specifically said, I don't know, that it was in the depot or the lengthy officer-involved shooting report where it was specific that Officer Jamison didn't hear Officer Lee say that, but right now I can't find that.

[00:33:17] Speaker 04:
In the depot.

[00:33:19] Speaker 00:
Oh, please.

[00:33:20] Speaker 04:
I couldn't find that in depot.

[00:33:22] Speaker 04:
And that's the one I'm probably more photogenic on.

[00:33:25] Speaker 00:
We'll track that down.

[00:33:26] Speaker 00:
Is there anything further, Judge Miller?

[00:33:29] Speaker 04:
I just have one quick thing with the 20 seconds.

[00:33:32] Speaker 04:
It almost seemed like the main point of the appeal brief was that Judge Mahan incorrectly used discretionary immunity on talking about all the causes of action.

[00:33:42] Speaker 04:
And I just wanted to suggest that that is probably necessary because even though everything sounded in federal and Monell, the second to last allegation in each cause of action brought up statutory claims.

[00:33:54] Speaker 04:
I would suggest that it was not a mistake for him to even apply a discretionary and he kind of had to because of all the estate of the decedent claims had an additional statutory component.

[00:34:03] Speaker 00:
Thank you.

[00:34:04] Speaker 00:
You're actually over your time by a minute.

[00:34:06] Speaker 00:
Oh, I saw 20 seconds.

[00:34:06] Speaker 00:
That's okay.

[00:34:07] Speaker 00:
So I'll ask you to wrap up and thank you for your advocacy.

[00:34:09] Speaker 00:
We appreciate it very much.

[00:34:10] Speaker 04:
Thank you, Your Honors.

[00:34:11] Speaker 04:
Thank you, panel.

[00:34:12] Speaker 00:
Please put two minutes on the clock.

[00:34:15] Speaker 00:
We've taken you both over.

[00:34:18] Speaker 02:
Yes.

[00:34:18] Speaker 02:
Thank you.

[00:34:19] Speaker 02:
I want to start with the raising three times.

[00:34:23] Speaker 02:
One point I want to make is that Jameson is the only one that really testifies about that.

[00:34:29] Speaker 02:
Other officers don't say that he pointed the gun.

[00:34:32] Speaker 02:
In fact, the Hudson investigation says

[00:34:35] Speaker 02:
that Jameson's really the only one.

[00:34:36] Speaker 02:
Not that the gun didn't move at all, but that exactly what Jameson says.

[00:34:40] Speaker 00:
That's why for me, I appreciate that dispute of fact, but that's why the coroner's report was important to me.

[00:34:45] Speaker 02:
Am I missing something there?

[00:34:47] Speaker 02:
No, no.

[00:34:47] Speaker 02:
And I think the one question is that it's unclear whether the autopsy report means what you say it meant in terms of pointing in that way.

[00:34:56] Speaker 02:
I think it's unclear what that means.

[00:34:58] Speaker 02:
I think that's one of the facts that would have- Can you give me another way it could be interpreted?

[00:35:02] Speaker 02:
Well, one of the things is that at least the driver of the Bearcat, for example, and others thought that he had shot himself in the leg because they thought that the gun was down.

[00:35:14] Speaker 02:
So where the gun was when he was shot or right before he was shot is a little bit unclear.

[00:35:20] Speaker 02:
And again, going back to the guns, I mean, we have the forensic report.

[00:35:25] Speaker 02:
We have the various impressions of officers in terms of what happened.

[00:35:30] Speaker 02:
But we have a person, our client is dead, so he can't say what happened right before there or what the position was.

[00:35:37] Speaker 02:
All I'm suggesting is that there's evidence about there that it's very possible that when he was shot, the gun was pointing down.

[00:35:43] Speaker 02:
It's possible that the gun was slightly elevated like it had been throughout a lot of this episode.

[00:35:53] Speaker 02:
I don't think that,

[00:35:55] Speaker 02:
Another thing I think that's really important is there was no order to shoot, right?

[00:36:00] Speaker 02:
There were officers there who had all that information and could easily have said, instead of somebody saying, gun, gun, gun, they could say, there's a danger, shoot him.

[00:36:12] Speaker 02:
Now's the time.

[00:36:13] Speaker 02:
But it was exactly the opposite, actually.

[00:36:15] Speaker 02:
They were waiting to start the less lethal operation.

[00:36:20] Speaker 02:
And Jameson ended.

[00:36:23] Speaker 02:
what was an appropriate set of police responses to a distraught man.

[00:36:27] Speaker 02:
And I think that it was objectively unreasonable.

[00:36:30] Speaker 02:
And in this court's cases, there needs to be an immediate threat.

[00:36:35] Speaker 02:
And objectively, there was not an immediate threat.

[00:36:38] Speaker 02:
And Jameson violated the constitutional rights.

[00:36:41] Speaker 02:
And on the discretionary immunity, by the way, if the court overturned the Fourth Amendment issue, that would also overturn.

[00:36:48] Speaker 02:
The court would have to deal with Menell and discretionary immunity and all those issues.

[00:36:53] Speaker 02:
Because those are dependent on that issue.

[00:36:56] Speaker 00:
It looks like we've got another question for you.

[00:36:57] Speaker 02:
Oh, okay, yes.

[00:36:58] Speaker 01:
So on what you just said, I have a fairly technical question.

[00:37:05] Speaker 01:
Okay.

[00:37:05] Speaker 01:
Let's assume, hypothetically,

[00:37:09] Speaker 01:
We were going to reject the fourth amendment claim only on Prong to that is the clearly established case law okay?

[00:37:23] Speaker 01:
How in your view and I know you don't want us to do that, but hypothetically if we were to do that How would that affect?

[00:37:32] Speaker 01:
The determination that the district court made on the state law claims if on the fourth amendment claim We were rejecting your claim, but not on the ground that there was no constitutional violation But only on the ground of no clearly established case law

[00:37:48] Speaker 02:
what would happen as I understand the way it would play out is that there would be a trial on the 4th Amendment issue in any event because that would be determinative of whether there's discretionary immunity for state law claims and also there would be the possibility of Minnell liability, which we briefed fairly extensively, but we haven't talked about here.

[00:38:10] Speaker 02:
But if there's a constitutional violation, there's no qualified immunity with respect to the city's liability under Minnell.

[00:38:18] Speaker 02:
But I would end by hoping that you don't go that way.

[00:38:23] Speaker 02:
Thank you.

[00:38:25] Speaker 00:
I want to thank you both, all of you, for your advocacy and your careful briefing.

[00:38:28] Speaker 00:
It's a very important case.

[00:38:29] Speaker 00:
We'll take it under advisement and we'll get you a decision just as soon as we can.

[00:38:33] Speaker 00:
We'll stand in recess for the day.