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

[00:00:00] Speaker 04:
Each side will have 15 minutes.

[00:00:01] Speaker 04:
You'll keep your own time.

[00:00:03] Speaker 04:
And Mr. Anderson, when you're ready.

[00:00:05] Speaker 01:
Thank you, Your Honors.

[00:00:06] Speaker 01:
May it please the Court, Craig Anderson, on behalf of Officers Smith and Huntsman.

[00:00:11] Speaker 01:
This is a Section 1983 excessive force case where the District Court failed to properly apply the qualified immunity analysis.

[00:00:18] Speaker 01:
At its core, there's two main issues on this appeal.

[00:00:21] Speaker 01:
The first one is whether the District Court acted appropriately when a sui sponte found that there was not probable cause for the mental health hold on Mr. Scott.

[00:00:30] Speaker 01:
And the second primary issue is whether the four shoes by the office lean in a little bit to the microphones.

[00:00:35] Speaker 04:
I'm having some difficulty hearing you apologize.

[00:00:37] Speaker 01:
I never hear that.

[00:00:38] Speaker 01:
So I was actually standing back.

[00:00:39] Speaker 01:
So thank you.

[00:00:40] Speaker 01:
Yeah.

[00:00:41] Speaker 01:
So starting with the probable cause issue, the district court without briefing or the benefit of counsel argument just made the decision that there was not probable cause to perform the mental health hold on Mr. Scott as this court is well aware.

[00:00:53] Speaker 01:
The issue of probable cause is an issue of law when the facts are not disputed.

[00:00:57] Speaker 01:
Here the facts in this case clearly justified at least the detention of Mr. Scott to evaluate the severity of his mental health crisis.

[00:01:05] Speaker 01:
What the officers knew was that he had made a call to 911.

[00:01:08] Speaker 01:
He had reported that three men were trying to break into his apartment.

[00:01:11] Speaker 01:
That one of them had a saw and was trying to harm him.

[00:01:13] Speaker 01:
The officers learned that those facts were probably not accurate upon arrival.

[00:01:16] Speaker 01:
When the officers knocked on the door, Mr. Scott told them to break the door down.

[00:01:20] Speaker 01:
He told them to come in.

[00:01:22] Speaker 01:
The officers did not.

[00:01:24] Speaker 01:
They returned back to the base of the stairwell, called their sergeant, who said, you need to go make sure this gentleman's OK.

[00:01:30] Speaker 01:
When the officers returned, Mr. Scott did exit the apartment, but he was possessing two weapons.

[00:01:39] Speaker 01:
He was not aggressive.

[00:01:41] Speaker 01:
He was not violent towards the officers.

[00:01:43] Speaker 01:
But he was clearly in a state of distress, possessing these weapons.

[00:01:46] Speaker 01:
When he placed himself against the wall, he told the officers, I have paranoid schizophrenia.

[00:01:50] Speaker 01:
He told them that he was in mental distress and he said, please put me in the car because he had been the recipient of legal two thousands, which is the term in Nevada for a mental health hold on prior occasions because he had possessed two weapons, which he had voluntarily surrendered to the officers.

[00:02:05] Speaker 01:
There was a justifiable concern to at least pat him down to make sure there were no more weapons in play.

[00:02:09] Speaker 01:
because the officers would have never turned him over to medical personnel or even conducted the investigation without first assuring that the scene was safe and that it was static.

[00:02:19] Speaker 01:
The district court ignored these facts and found that no reasonable officer could find that he was a danger to himself or others.

[00:02:27] Speaker 01:
In other words, the district court was implying the officer should have just left.

[00:02:32] Speaker 04:
Isn't this a disputed fact that whether or not he was dangerous?

[00:02:36] Speaker 04:
I mean, your briefing, your argument today suggests that

[00:02:40] Speaker 04:
there is a dispute about whether or not Mr. Scott is dangerous and we have to resolve that in favor of the plaintiff.

[00:02:46] Speaker 04:
Is that correct?

[00:02:48] Speaker 01:
No.

[00:02:49] Speaker 01:
The reason that it's not, it is a, it could be a disputed fact.

[00:02:52] Speaker 01:
The issue though is whether there was probable cause, which we know is a very low bar that is not a disputed, that can be decided as a matter of law if the facts are not disputed.

[00:03:01] Speaker 01:
And based upon these facts, any reasonable officer, any reasonable officer would have concluded that further investigation and detention was necessary.

[00:03:08] Speaker 01:
to determine whether Mr. Scott was a danger to himself or others.

[00:03:12] Speaker 01:
Because under the district court's theory, if they had just left and then he had either harmed himself or someone else, then there would be a lawsuit with them saying you were just barely there.

[00:03:22] Speaker 01:
You were there.

[00:03:23] Speaker 01:
You could have taken him into custody and got him the mental health he needed, but you left.

[00:03:27] Speaker 01:
And so it is not a disputed fact because the facts that give rise to the probable cause are not disputed.

[00:03:33] Speaker 01:
And I would point out again that there was no briefing on this issue with the district court.

[00:03:36] Speaker 01:
And under Rule 56F,

[00:03:38] Speaker 01:
if the district court felt that there was not probable cause, because it was never raised by the plaintiff.

[00:03:43] Speaker 01:
They never argued there was not probable cause to detain Mr. Scott.

[00:03:47] Speaker 01:
Their own expert agreed there was probable cause to detain Mr. Scott.

[00:03:51] Speaker 01:
Their complaint says that he, at paragraph 116, that he was suffering from a severe mental episode.

[00:03:58] Speaker 01:
In their opposition to motion for summary judgment, they argued they had a legal basis to take him into custody.

[00:04:03] Speaker 01:
And so everyone agreed that there was a probable cause to take him into custody until... Is anyone suggesting that they should have just left?

[00:04:12] Speaker 02:
Instead, they take him down, they tackle him.

[00:04:15] Speaker 02:
What role did they call the sergeant?

[00:04:17] Speaker 02:
Why didn't they call the mental health support?

[00:04:20] Speaker 02:
They were able to call the sergeant.

[00:04:21] Speaker 02:
Why weren't they able to call mental health support instead of taking him down?

[00:04:24] Speaker 01:
Okay, well, I think initially when they got him outside that the first step that any reasonable police officer would do would be to make sure the scene is safe.

[00:04:32] Speaker 01:
So they wanted to pat him down, make sure there were no other weapons because he'd already had two weapons in his possession, and then interview him and investigate as to the severity of his mental illness, his intentions, because he had referenced that people were trying to kill him.

[00:04:47] Speaker 01:
At that point, he's a victim.

[00:04:49] Speaker 01:
At that point, he is definitely a victim, but once they realize those people are not there, that he is hallucinating, that he is seeing things that are not present, they then have an obligation to him under the community caretaking function to get him the mental health that he needs.

[00:05:03] Speaker 01:
And so he is always a victim.

[00:05:04] Speaker 01:
I mean, there are some minor crimes potentially at issue here, but the officers were not interested in investigating those, and I concede that.

[00:05:11] Speaker 01:
Their interest was solely in getting him the mental health that he needed.

[00:05:17] Speaker 02:
He's not being accused of committing a crime.

[00:05:19] Speaker 02:
The only reason there's probable cause potentially is he's able to harm himself or he's able to harm others.

[00:05:26] Speaker 01:
Correct.

[00:05:26] Speaker 02:
But he's been compliant.

[00:05:28] Speaker 02:
So I understand the need to tackle him.

[00:05:32] Speaker 01:
He's been compliant, but it does become concerning.

[00:05:34] Speaker 01:
And I'm not trying to overstate the case here.

[00:05:36] Speaker 01:
But it does become concerning when he will not allow the pat down.

[00:05:39] Speaker 01:
And still, the officers stand back.

[00:05:41] Speaker 01:
They're not armed.

[00:05:42] Speaker 01:
They're not threatening him.

[00:05:43] Speaker 01:
I mean, they're not displaying weapons.

[00:05:44] Speaker 01:
And they're trying to address him and have a conversation.

[00:05:47] Speaker 01:
Then he goes and unzips his zipper and begins reaching towards his jacket.

[00:05:50] Speaker 01:
And that's when they simply step in and grab his arms.

[00:05:53] Speaker 01:
And as you can tell from the video, there's not an immediate action to take him to the ground.

[00:05:57] Speaker 01:
They're attempting to pat him down from a standing position, but at that point he does begin to show some minor resistance.

[00:06:03] Speaker 01:
And that's where this case becomes extremely similar and almost on all fours to the Drummond case, where the gentleman was exhibiting similar type behavior, not necessarily a danger to himself and others in the parking lot.

[00:06:16] Speaker 01:
Only Drummond was known not to be armed.

[00:06:17] Speaker 01:
He was only thought to be potentially a danger to himself.

[00:06:21] Speaker 01:
And in that case, the officers immediately knocked him to the ground.

[00:06:24] Speaker 01:
and then effectuated handcuffing, which the Ninth Circuit found was reasonable.

[00:06:28] Speaker 01:
They were not concerned about the pre-handcuffing force on Drummond.

[00:06:31] Speaker 01:
And so this case with respect to the detention and the taking him to the ground, and unfortunately we have the video in this case, which shows this was certainly not a violent takedown.

[00:06:42] Speaker 01:
That the officers each guided him down with one arm, he was placed on his back, they were talking, saying watch his head, there were the rocks, they were monitoring him consistently.

[00:06:50] Speaker 01:
And so under Drummond, if an officer was familiar with that case, they would believe that this action was reasonable.

[00:06:55] Speaker 04:
Do you agree that Drummond recognized that the use of body weight force creates a risk of asphyxiation?

[00:07:01] Speaker 01:
Correct.

[00:07:01] Speaker 01:
I mean, Drummond clearly stands for the proposition that once a suspect is prone, restrained, and no longer a threat, that the continued and the word in Drummond is prolonged use of body weight can cause the risk of asphyxiation.

[00:07:13] Speaker 01:
I think that's the established rule, but Drummond applies to post-handcuffing actions of the officers.

[00:07:19] Speaker 01:
It does not apply to pre-handcuffing force of using body weight to effectuate handcuffing.

[00:07:25] Speaker 01:
And every court that has interpreted Drummond in this circuit, and I don't think there's any other published ones, but unpublished and the district courts, have made it clear that Drummond applies to post-handcuffing force.

[00:07:36] Speaker 04:
And here, wasn't Mr. Scott essentially

[00:07:40] Speaker 04:
It wasn't the equivalent of being handcuffed.

[00:07:42] Speaker 04:
His hands were behind his back.

[00:07:43] Speaker 04:
They were restrained.

[00:07:45] Speaker 04:
What's the meaningful difference?

[00:07:47] Speaker 01:
So at what point are we talking?

[00:07:49] Speaker 01:
So when he goes down, there is a struggle for roughly a minute and 30 seconds where the officers are struggling with him.

[00:07:55] Speaker 01:
He's on his back for a large portion of that time.

[00:07:57] Speaker 01:
They eventually roll him over.

[00:07:59] Speaker 01:
And then once he's handcuffed, the officer remains on him for eight seconds.

[00:08:03] Speaker 01:
And so he got off of him within eight seconds of handcuffing.

[00:08:09] Speaker 01:
And so that would be the time period which no court has found that that short of a period of time is unreasonable in this type of a situation.

[00:08:19] Speaker 01:
Most recently in A and B versus, I think it's city or county of San Diego, a panel of the circuit in a non-published decision found that 30 seconds after a suspect stopped moving and was no longer resisting was not unreasonable.

[00:08:34] Speaker 01:
And the shortest period of time that a court has found is the Abston case, which is another unpublished decision, which was a minute and seven seconds.

[00:08:44] Speaker 01:
And they found that to potentially be unreasonable or a jury question.

[00:08:48] Speaker 01:
But in A and B, the court found that 30 seconds was reasonable.

[00:08:51] Speaker 01:
And here at most, we have eight seconds where Officer Huntsman remained on Mr. Scott.

[00:08:57] Speaker 01:
So that force, there's no case that

[00:09:00] Speaker 01:
Plaintiff has cited to the district court founder that I found that the force used prior to handcuffing was unreasonable, that the officers were not entitled to place him on the ground, use their body weight, control his hands, and handcuff him.

[00:09:12] Speaker 01:
What their obligations were under Drummond and its progeny is to get off him as soon as the handcuffing is completed and is safe to do so.

[00:09:21] Speaker 01:
And I would argue even with the probable cause issue, which I do not think is a hard issue to decide, I think that based upon the admissions of the plaintiff,

[00:09:30] Speaker 01:
And the facts of this case, it was reasonable to attempt to detain him and to investigate the severity of his mental health crisis, that even if there was not probable cause, he did not have a right to resist under Luchthel and Arpin, which say that a suspect can only resist an unlawful detention if the officer is demonstrating bad faith or provocative conduct, which based upon the video, there's no evidence of that in here.

[00:09:56] Speaker 01:
I don't think there's any dispute that everybody was trying to do the right thing.

[00:10:01] Speaker 01:
I have five minutes, which I'll reserve.

[00:10:03] Speaker 01:
Or do you have any other questions?

[00:10:04] Speaker 03:
I do have a question, counsel.

[00:10:06] Speaker 03:
So can you cite to me any case law where our court, the Ninth Circuit, has reversed a district court's factual findings because the objective evidence blatantly contradicted those findings?

[00:10:18] Speaker 03:
Because I believe that's what we need to be able to do here, correct?

[00:10:21] Speaker 03:
We need to find that the district court's finding on probable cause, if I'm understanding you correctly, is

[00:10:31] Speaker 03:
blatantly contradictory to the facts in the case.

[00:10:34] Speaker 01:
On the probable cause issue.

[00:10:36] Speaker 01:
Hughes versus Rodriguez.

[00:10:39] Speaker 01:
Hughes, H-U-G-H-E-S, B. Rodriguez.

[00:10:42] Speaker 01:
There was also a case Malu, B-A-L-L-O-U, which it's a published decision that the court reversed part because the video blatantly contradicted and then found other parts of the video to not blatantly contradict.

[00:10:55] Speaker 01:
So it was kind of a partial.

[00:10:56] Speaker 03:
So does the video in this situation plainly contradict?

[00:11:00] Speaker 01:
On which issue?

[00:11:01] Speaker 01:
The force of the probable cause.

[00:11:03] Speaker 01:
I'm only arguing on the probable cause.

[00:11:06] Speaker 01:
Yes, I believe that by watching the video, any reasonable officer who came into contact with Mr. Scott would perceive that he was definitely in a crisis situation.

[00:11:17] Speaker 01:
That he definitely was seeking help.

[00:11:19] Speaker 01:
In fact, he asked for the help.

[00:11:21] Speaker 01:
And that's why this case is so tragic, is they were trying to accomplish the goal that he asked them to be there for.

[00:11:26] Speaker 01:
When he says, put me in the car, when he asks them, when he hands the knife to them and they take it, it is clearly any reasonable officer would be, we've got to find out what's wrong with this person.

[00:11:37] Speaker 01:
And if they had just left him to his own device.

[00:11:41] Speaker 01:
And even plaintiff's experts said that the mistake they made was that they should have waited for more officers to take him to the ground.

[00:11:48] Speaker 01:
He never said they shouldn't have taken him into custody.

[00:11:50] Speaker 01:
He never said that they should not have attempted to get him this mental health that he needed.

[00:11:56] Speaker 01:
And so I do believe that the video blatantly contradicts, and just the evidence in general, the phone call itself, where someone calls and says, hey, I want the police here because people are trying to kill me.

[00:12:07] Speaker 01:
And the officers were young, and they handled it

[00:12:10] Speaker 01:
very well, and they went, they talked to him, they tried to find out what he needed, they called their sergeant, they sought the type of supervision that you'd like to be guiding such officers.

[00:12:19] Speaker 01:
And so any reasonable officer, because the police are now, as you're all very aware, they're being tasked with these mental health issues, which are not criminal in nature and fall under the community caretaking function.

[00:12:31] Speaker 01:
And the courts are asking these officers to make sure they receive the mental health training they need so that they can provide that to these people.

[00:12:39] Speaker 01:
And based upon

[00:12:40] Speaker 01:
the evidence in the video, it's clear that there was a slight probability, or a fair probability is the better way to put it, as the Supreme Court has defined probable cause, a fair probability that he required at least the detention for further investigation as to what he was going through and what help he actually needed.

[00:12:58] Speaker 01:
And I don't think there's any evidence that they are plainly incompetent or knowingly violated the law, which the plaintiff would need to show to defeat their qualified immunity argument.

[00:13:08] Speaker 01:
Does that answer your question?

[00:13:10] Speaker 04:
It does.

[00:13:10] Speaker 04:
Thank you, counsel.

[00:13:11] Speaker 04:
All right.

[00:13:13] Speaker 04:
We'll put three minutes back on the clock for your rebuttal.

[00:13:15] Speaker 04:
Thank you.

[00:13:22] Speaker 00:
Good morning, Your Honors.

[00:13:23] Speaker 00:
If it pleases the Court, my name is Peter Goldstein.

[00:13:25] Speaker 00:
I represent the appellee.

[00:13:29] Speaker 00:
It's clear that we do have a mental health crisis in this country.

[00:13:32] Speaker 00:
There are numerous instances of persons that are suffering from a mental disorder or

[00:13:39] Speaker 00:
a mental crisis that are being shot and killed or killed in some manner by the police.

[00:13:44] Speaker 00:
But in this case, if I can just go through the chronology for a moment.

[00:13:50] Speaker 00:
And I want to point out that Mr. Scott, when he was being handcuffed to take it to the ground, said please 63 times, begging the officers to not stay on top of him, not to use force on him.

[00:14:05] Speaker 00:
But starting in the beginning,

[00:14:07] Speaker 00:
The officers, Smith and Huntsman, they were young officers.

[00:14:11] Speaker 00:
They didn't know exactly what to do in this situation.

[00:14:15] Speaker 00:
They were both crisis intervention trained, which means that they had the 40 hours of mental health training that Metro provides.

[00:14:22] Speaker 00:
However, they had no knowledge of what to do in this case, so they called their sergeant.

[00:14:27] Speaker 00:
And their sergeant said, after they told him he's not coming to the door, leave.

[00:14:33] Speaker 00:
Just go ahead and leave.

[00:14:33] Speaker 00:
It's not a big deal.

[00:14:34] Speaker 00:
Go about your other assignments.

[00:14:37] Speaker 00:
But they didn't.

[00:14:37] Speaker 00:
They started shining the flashlight inside of his window, which of course is going to exacerbate any crisis or paranoia that Mr. Scott was suffering.

[00:14:47] Speaker 00:
And eventually he came out.

[00:14:49] Speaker 00:
He came down the stairs and the officers initially pulled their gun on him.

[00:14:54] Speaker 00:
And Mr. Scott dropped a pipe that he was carrying.

[00:14:57] Speaker 00:
And later on he dropped, he handed one of the officers a kitchen knife and he handed it holding the blade, giving the handle to the officer.

[00:15:06] Speaker 00:
He begged them not to search him in a manner that requires him to face the wall because of his paranoia.

[00:15:14] Speaker 00:
He was begging them to understand his situation.

[00:15:18] Speaker 00:
So the district court, in a very well-reasoned, very, very articulate order, went through all the facts, and we've got to the point now where

[00:15:30] Speaker 00:
Appellants believe that they can file interlocutory appeals on all these disputed issues of fact, which is not the whole purpose of the interlocutory appeal on the limited issue of qualified immunity.

[00:15:41] Speaker 00:
But I think they're forcing lawyers to take every case only if it matches a specific other case right on point.

[00:15:49] Speaker 00:
Otherwise, you're going to lose because we're going to appeal it to qualified immunity.

[00:15:52] Speaker 00:
I mean, this is burdensome for the plaintiffs to have to go through five years of litigation.

[00:16:00] Speaker 00:
The Ninth Circuit issued a sua sponte order requesting a briefing on why this should be before us on the issue of interlocutory appeal and qualified immunity, because there's a question of fact.

[00:16:13] Speaker 00:
And unfortunately, the district court did not rule in our favor on the motion to dismiss the appeal.

[00:16:19] Speaker 00:
So here we are, relitigating the whole case over and over again, but getting back to the facts again.

[00:16:26] Speaker 00:
So the district court, Judge Bower,

[00:16:31] Speaker 00:
in a very articulate opinion argued and wrote an opinion that stated that this incident, this person did not meet the criteria for illegal 2000, which is the same as a California 5150.

[00:16:45] Speaker 00:
He's the person suffering from mental health crisis to the point where he is a danger to himself or others and needs to be evaluated for treatment.

[00:16:54] Speaker 00:
So they say we didn't plead false arrest.

[00:16:57] Speaker 00:
Well, that is technically not an arrest.

[00:16:59] Speaker 00:
When you take somebody in,

[00:17:00] Speaker 00:
for legal 2000 for an evaluation that's not deemed to be an arrest.

[00:17:05] Speaker 00:
So we didn't have the burden of pleading that.

[00:17:08] Speaker 00:
We didn't have to.

[00:17:10] Speaker 00:
In any event, the officers really did not know what to do.

[00:17:13] Speaker 00:
So Mr. Anderson argues that they were doing an investigation.

[00:17:19] Speaker 00:
Well, getting back to the point where after they handcuffed him, and he's been on the ground for a while, he was prone for about a minute and 42 seconds with weight on his back and chest.

[00:17:30] Speaker 00:
and on shoulders, because they had both officers simultaneously placing weight on him.

[00:17:35] Speaker 04:
Let me ask you a question about Drummond.

[00:17:38] Speaker 04:
Sure.

[00:17:38] Speaker 04:
Is it the rule in Drummond, is the rule in Drummond limited only to cases where an individual is handcuffed?

[00:17:46] Speaker 00:
No, Your Honor.

[00:17:46] Speaker 00:
I've never seen that distinction.

[00:17:48] Speaker 00:
In fact, actually, if somebody is not handcuffed, there's evidence that the physiological distress can be more severe, because there's more apt to struggle.

[00:17:58] Speaker 00:
But Drummond did not state that.

[00:18:00] Speaker 00:
Drummond did not state that at all.

[00:18:02] Speaker 00:
Weight on the back, whether or not the person is handcuffed or his arms are to the side, doesn't make any physiological difference.

[00:18:08] Speaker 00:
I mean, if his arms are to the side, he's almost trying to do a push-up.

[00:18:14] Speaker 00:
That doesn't matter.

[00:18:14] Speaker 00:
They call that segmenting, which is no longer used in the training.

[00:18:20] Speaker 00:
Because you don't want to continue to place somebody in a position where you can impair their breathing.

[00:18:26] Speaker 00:
And this is what happened in this case.

[00:18:27] Speaker 00:
He died of cardiac failure from

[00:18:29] Speaker 00:
hypoxia.

[00:18:30] Speaker 00:
He could not breathe.

[00:18:31] Speaker 00:
He could not get air.

[00:18:32] Speaker 00:
So after they get him handcuffed, they put him on his side.

[00:18:37] Speaker 00:
They ignored him completely.

[00:18:39] Speaker 00:
I mean, there was no investigation.

[00:18:42] Speaker 00:
They're not asking him questions.

[00:18:43] Speaker 00:
And by the way, back to Mr. Anderson's point about he was a threat or he was a danger.

[00:18:48] Speaker 00:
They testified in deposition he was not a danger to anybody.

[00:18:54] Speaker 00:
He certainly did not commit any crime.

[00:18:57] Speaker 00:
He didn't appear to be a danger to himself.

[00:19:01] Speaker 00:
And there was no basis to take him in, because the court noted that at the time of March 3, 2019, the Legal 2000 statute specifically required that this be the result of a mental illness.

[00:19:14] Speaker 00:
And that criteria was not.

[00:19:15] Speaker 04:
But even if there is a disputed fact about this, don't we have to resolve that in favor of the plaintiff?

[00:19:22] Speaker 00:
I believe you do.

[00:19:23] Speaker 00:
We do, yes.

[00:19:24] Speaker 00:
That's exactly what I believe.

[00:19:26] Speaker 00:
Why, we shouldn't be here today because the court really, this court should not have jurisdiction over disputed issues of fact.

[00:19:33] Speaker 00:
I mean, the court, the trial court, the district court determined what the facts were in a 32 page order, went through it line by line what happened and determined that all the claims survived except for the denial of medical care, which we withdrew.

[00:19:50] Speaker 00:
The other claim as far as the ADA violation was only against Metro,

[00:19:55] Speaker 00:
not against the individual officers.

[00:19:57] Speaker 00:
Other than that, all of our claims survived.

[00:20:00] Speaker 00:
The excessive force, the Fourth Amendment violation, the Fourteenth Amendment violation.

[00:20:05] Speaker 00:
And speaking of the Mannell claim, because that was brought up, Officer Huntsman testified in deposition that he had never been trained that placing weight on a suspect in a prone position can cause a danger of impaired breathing

[00:20:25] Speaker 00:
that could likely result in hypoxia.

[00:20:27] Speaker 00:
He said, no, I've never received that training.

[00:20:30] Speaker 00:
And ironically, this is what is so stunning in my opinion, the video in this case is actually used by Metro as a training video of what to do in the event you're trying to take a suspect into custody in a situation like this.

[00:20:47] Speaker 00:
They actually use this video, not the end where you see Mr. Scott pass away, but in the initial

[00:20:55] Speaker 00:
handcuffing, they use it as a training video.

[00:20:58] Speaker 00:
So that's ratification.

[00:21:00] Speaker 00:
They're basically saying, this is the way you do it, even though the end result was Mr. Scott died.

[00:21:05] Speaker 00:
And we see that.

[00:21:07] Speaker 00:
And by the way, Officer Smith testified in deposition in his statement that he did a sternum rub 20 times.

[00:21:17] Speaker 00:
Now, a sternum rub is where you take your knuckle, basically, and rub it against the person's chest to see if there's any reaction.

[00:21:23] Speaker 00:
It's a pain technique.

[00:21:25] Speaker 00:
So there's going to be some kind of reaction by the person.

[00:21:29] Speaker 00:
He did it once in the video, and he went like this.

[00:21:31] Speaker 00:
He barely touched Mr. Scott.

[00:21:33] Speaker 00:
So they just basically left him to die.

[00:21:36] Speaker 00:
Now, we know that that claim was withdrawn in terms of the failure to provide medical care after they handcuffed him.

[00:21:42] Speaker 00:
But that, to me, it's a sham investigation.

[00:21:47] Speaker 00:
They didn't really investigate the officer's conduct in this case.

[00:21:51] Speaker 00:
And they did not have probable cause under the statute

[00:21:55] Speaker 00:
to take Mr. Scott into custody for an evaluation.

[00:22:00] Speaker 00:
They didn't meet the criteria.

[00:22:02] Speaker 00:
The district court noted that and found that as a matter of law.

[00:22:06] Speaker 00:
They did not meet the criteria because they didn't believe that he was a danger to himself or others based on the fact that it was not the result of a mental health impairment.

[00:22:17] Speaker 00:
So we're talking about somebody who is never a threat to anybody, who said please 63 times, who is essentially begging for his life

[00:22:26] Speaker 00:
And when you look at the video, and I noted this after viewing the video maybe 100 times, as they're trying to transport Mr. Scott and they're walking with him, you see one officer pivot.

[00:22:41] Speaker 00:
Now the body cam does not show his lower body, but you can see the pivot, the change in his body weight.

[00:22:47] Speaker 00:
And then immediately Mr. Scott starts to fall down.

[00:22:50] Speaker 00:
I believe that that's at least a factual question.

[00:22:53] Speaker 00:
Did he use his foot?

[00:22:55] Speaker 00:
do a leg sweep or a foot sweep to try to get Mr. Scott to fall to the ground, because he did go right to the ground after that movement.

[00:23:02] Speaker 00:
So you've got the excessive force in the weight on the one minute 42 seconds on a prone person, and you've got the excessive force in the takedown.

[00:23:13] Speaker 00:
And the court noted in his order that that is at least a plausible factual question to be determined by a jury.

[00:23:19] Speaker 00:
So for the appellants to come in,

[00:23:23] Speaker 00:
and ask to re-litigate the entire case based on a very well-reasoned thought out order determining what the facts are in this case and what the law is, I believe is a misuse of the interlocutory appeal process.

[00:23:37] Speaker 00:
I mean there's a very narrow limited scope to interlocutory appeal and I believe that the motion to dismiss should have prevailed.

[00:23:50] Speaker 00:
This is not a case suitable to

[00:23:53] Speaker 04:
Council, I'm going to turn your attention for a moment to the 14th Amendment claim.

[00:23:58] Speaker 04:
And I'd like to ask you, what is the most on point case clearly establishing Rochelle Scott's 14th Amendment rights were violated?

[00:24:08] Speaker 00:
Well, I know that the ninth and I believe the 10th circuit are the only circuits that recognize that standing.

[00:24:17] Speaker 00:
But that's not disputed.

[00:24:19] Speaker 00:
I mean, that is the law.

[00:24:21] Speaker 00:
And I believe Gonzalez versus Anaheim and some other cases determined that, and I don't recall specifically what's the most on-point case for the 14th Amendment standing claim, but that is the law.

[00:24:33] Speaker 00:
And in fact, in the appellant's brief, they argued that, well, that's the law in the 9th and 10th Circuit.

[00:24:40] Speaker 04:
However, in other circuits... I'm asking you about what case in particular you have that goes to the clearly established prong.

[00:24:50] Speaker 04:
What case can you point to that says this is the law that tells us that a 14th Amendment claim is clearly established, that the constitutional violation is clearly established?

[00:25:09] Speaker 00:
If you give me one moment, I didn't anticipate that exact question.

[00:25:19] Speaker 00:
Let me search.

[00:25:50] Speaker 00:
I'm almost there.

[00:26:01] Speaker 00:
Well, we argued green, or greer rather, which is on the time to deliberate on the issue of the 14th Amendment.

[00:26:13] Speaker 00:
And we argued garlic, time to deliberate.

[00:26:17] Speaker 00:
But as far as the standing issue,

[00:26:20] Speaker 00:
I didn't think it was really disputed that there is standing allowed in the Ninth Circuit for an adult child to sue on behalf of her deceased father.

[00:26:35] Speaker 00:
I know some cases, I mean the damages may be limited, there's no economic damages in that case for the Fourteenth Amendment claim.

[00:26:44] Speaker 00:
I mean she wasn't dependent upon Mr. Scott for support, but there's no

[00:26:56] Speaker 02:
I guess the question is not standing.

[00:26:59] Speaker 02:
The question is under the 14th Amendment, is there a case that discusses using an unwarranted force when restraining a suspect under the 14th Amendment?

[00:27:13] Speaker 02:
Is it clearly established that police officers violate a plaintiff's 14th Amendment right by using an unwarranted force when restraining a suspect?

[00:27:22] Speaker 02:
under the 14th Amendment.

[00:27:25] Speaker 00:
Yeah, if you can show either a deliberate indifference or a purpose to harm, the purpose to harm is only when there is not time to deliberate, but there is a body of law on the question of whether or not there is deliberate indifference.

[00:27:40] Speaker 00:
And the purpose to harm standard only comes in when the officer does not have time or does have time to look, does not have time to deliberate.

[00:27:51] Speaker 00:
In this case, the officers had time to consider their actions and what they were doing and to assess what's going on, to call for more help, to call for the sergeant again to see what's going on.

[00:28:03] Speaker 00:
I mean, it's a higher standard, a higher burden for the plaintiffs in these cases to prove the 14th Amendment claim.

[00:28:10] Speaker 00:
But it's not really a disputed claim in the Ninth Circuit.

[00:28:16] Speaker 00:
I mean, parents and children have

[00:28:20] Speaker 00:
standing to sue on behalf of their adult, either parents or children.

[00:28:25] Speaker 00:
And other circuits may not have that same standing, but ninth and tenth do.

[00:28:32] Speaker 04:
Mr. Goldstein, you're out of time.

[00:28:33] Speaker 04:
Maybe you want to make a closing statement.

[00:28:36] Speaker 00:
Certainly, Your Honor.

[00:28:37] Speaker 00:
Thank you.

[00:28:37] Speaker 00:
I just thought that the

[00:28:43] Speaker 00:
The limited scope of the review, the fact that the court, the trial district court determined that there was no probable cause based on a very specific reading of the statute, which at the time was different than it is now, but required that all those elements of, you know, a danger to himself or others, which he was not, he didn't, and the officers testified as to all of that.

[00:29:05] Speaker 00:
They were never in danger.

[00:29:06] Speaker 00:
He did not commit any crime at all.

[00:29:09] Speaker 00:
He was in his apartment.

[00:29:10] Speaker 00:
Thank you, Mr. Goldstein.

[00:29:11] Speaker 00:
Thank you, Your Honor.

[00:29:11] Speaker 00:
Your Honor, thank you very much.

[00:29:27] Speaker 01:
Thank you for the extra time, and I'll be brief.

[00:29:29] Speaker 01:
And I think what we just learned is that there are no cases directly on point clearly establishing this law.

[00:29:36] Speaker 01:
When you asked Mr. Goldstein about whether there's any case law saying the Drummond applies to pre-handcuffing force, he said yes, but didn't give you a case, because there's not one.

[00:29:47] Speaker 01:
If you go to page 45 and 46 of my brief, I cite eight cases.

[00:29:52] Speaker 01:
None of them were published Ninth Circuit decisions, but they're cases interpreting Drummond.

[00:29:57] Speaker 01:
Every one of them says it applies to post-handcuffing prolonged use of force.

[00:30:02] Speaker 01:
In fact, in Drummond's conclusion, in its own opinion, it says this applies to prolonged use of body weight force.

[00:30:08] Speaker 01:
He just said yes, but couldn't give you one case that applied to pre-handcuffing force.

[00:30:12] Speaker 01:
So the appeal is justified.

[00:30:14] Speaker 01:
This is a proper interlocutory appeal, because even the district court, which Mr. Goldstein cited to as well reasoned and clear, the two cases that it gave you

[00:30:22] Speaker 01:
was Young versus County of Los Angeles and Bryan versus McPherson.

[00:30:26] Speaker 01:
Young versus County of Los Angeles is a case where an officer beat a guy eating broccoli with a baton.

[00:30:31] Speaker 01:
Hardly the facts we have in this case.

[00:30:34] Speaker 01:
The case of Bryan McPherson was a taser case where a gentleman was standing in the street upset and an officer tased him in dart mode when he was not a threat.

[00:30:42] Speaker 01:
Not even the district court could find one case that said that pre-handcuffing use of body weight is unconstitutional.

[00:30:49] Speaker 01:
And so under the clearly established prong, even accepting all the plaintiff's facts as true, there would still have to be qualified immunity on those grounds.

[00:30:58] Speaker 01:
Because there is no case on point that says using body weight to restrain someone.

[00:31:02] Speaker 01:
And the best case is Drummond is basically on point with this case.

[00:31:06] Speaker 01:
Drummond is right in point with the

[00:31:09] Speaker 01:
severity of the crime, what the suspect was doing, what the officers did.

[00:31:13] Speaker 01:
The difference is in Drummond, they stayed on him for 20 minutes.

[00:31:16] Speaker 01:
Two officers, full body weight, sat on him for 20 minutes.

[00:31:18] Speaker 01:
Here the officers were off within eight seconds.

[00:31:21] Speaker 01:
And so it's easily distinguishable and there should be qualified immunity granted on that.

[00:31:25] Speaker 01:
I agree with your honors on the 14th Amendment.

[00:31:27] Speaker 01:
The issue is not standing.

[00:31:28] Speaker 01:
I understand that you two cannot

[00:31:29] Speaker 01:
I mean, that you three cannot create a new rule that there's not standing.

[00:31:33] Speaker 01:
I just put that in there to preserve it in case this were to go up on Pong to get that changed.

[00:31:37] Speaker 01:
But there is no evidence in this case that these officers were acting for any reason other than a legitimate law enforcement objective, which is the Fourteenth Amendment standard, that they have to have a purpose to harm unrelated to any legitimate law enforcement standard.

[00:31:50] Speaker 01:
There's just no evidence of that in this case, and the Fourteenth Amendment claim should have been dismissed as well.

[00:31:54] Speaker 01:
Unless you have any questions, I will stop.

[00:31:58] Speaker 04:
Thank you very much.

[00:31:59] Speaker 01:
Thank you, Your Honors.

[00:32:00] Speaker 04:
This case is now submitted.