[00:00:03] Speaker 03:
Good morning, everybody.

[00:00:04] Speaker 03:
Judge Tallman and Judge Gould and I would like to welcome you all to the Ninth Circuit.

[00:00:10] Speaker 03:
We're glad to have everyone here today, and we've got two cases set for argument.

[00:00:16] Speaker 03:
Just remember, if you want to reserve time, let us know and try and watch as you wrap up as time's expiring so that we can keep

[00:00:25] Speaker 03:
within the time.

[00:00:27] Speaker 03:
We'll go ahead and call the first case, which is Cuevas versus City of Tulare, case number 23-15953.

[00:00:33] Speaker 03:
Good morning, your honor.

[00:00:37] Speaker 04:
It's Michael Haddad for the Plane of Rose Cuevas, and I'd like to reserve five minutes for rebuttal, please.

[00:00:45] Speaker 04:
Brentland versus California clearly established that during a traffic stop, an officer seizes everyone in the vehicle, not just the driver.

[00:00:54] Speaker 04:
And long before this incident, it was clearly established that subjective intent had nothing to do with determining the seizure of a person, not the officers, not the person seized.

[00:01:05] Speaker 04:
However, the district court, encouraged by the defendants, wrongly held that Rosa Cuevas was never seized because these officers say they didn't intend to seize her.

[00:01:15] Speaker 01:
I thought the court decided that the seizure, if it occurred, occurred after he unleashed the canine.

[00:01:23] Speaker 04:
No, the court determined that she wasn't seized.

[00:01:25] Speaker 04:
So she was never seized.

[00:01:26] Speaker 01:
That's what the court said.

[00:01:27] Speaker 00:
Judge Talman, I'm having trouble hearing Judge Talman.

[00:01:32] Speaker 01:
OK.

[00:01:32] Speaker 01:
Is that better?

[00:01:34] Speaker 00:
Yeah, if you can speak into the mic.

[00:01:36] Speaker 01:
I just moved it.

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

[00:01:39] Speaker 01:
Thank you, Judge Gould.

[00:01:41] Speaker 03:
So even if the district court erred on that point, and we'll hear from opposing counsel, but you may be right about that, that doesn't get you all the way to the end zone, right?

[00:01:54] Speaker 03:
You still have to win on the qualified immunity issue.

[00:01:59] Speaker 03:
Can you address that a little bit?

[00:02:03] Speaker 04:
Yes.

[00:02:05] Speaker 04:
Once we understand that Ms.

[00:02:06] Speaker 04:
Cuevas was seized, then clearly the Fourth Amendment applies to any force to which they subjected her, set in motion or subjected her.

[00:02:14] Speaker 04:
Here, it was 34 gunshots, many of which struck her.

[00:02:19] Speaker 03:
Can you be clear about many of which?

[00:02:20] Speaker 03:
I thought it was two.

[00:02:21] Speaker 03:
Is that correct, or was it more than that?

[00:02:24] Speaker 04:
Or do we know a number?

[00:02:25] Speaker 04:
It's impossible to say how many, because there's some wounds that appear to be pass-through wounds.

[00:02:29] Speaker 04:
She was wounded in her left arm, her chest, and her brain stem.

[00:02:34] Speaker 01:
So what would you have the officers do after the driver shoots and kills the canine and then shoots the dog's handler twice?

[00:02:47] Speaker 04:
I would have the officers follow the law and their training.

[00:02:49] Speaker 01:
Number one, the law says... Well, the training is to meet deadly force with deadly force, is it not?

[00:02:55] Speaker 04:
That's part of the training, but the training is when there's innocent bystanders next to your target, you can't shoot

[00:03:02] Speaker 04:
without taking due precautions for the safety of the innocent bodies.

[00:03:05] Speaker 01:
So you would have the officers hold fire, what, until they could reposition themselves while he's continuing to fire at them?

[00:03:13] Speaker 01:
The driver?

[00:03:14] Speaker 04:
First of all, he wasn't continuing to fire.

[00:03:16] Speaker 04:
He fired two shots and it's undisputed according to the officers.

[00:03:19] Speaker 01:
Well, he fired more shots later, did he not?

[00:03:21] Speaker 04:
It was after they finished their barrage of 34.

[00:03:24] Speaker 01:
I guess what I'm asking you is, once he starts the gunfight, is it your position that the officers cannot defend themselves until they move to a position which would immunize the passenger from being hit as a bystander?

[00:03:43] Speaker 04:
Basically, yes, they can defend themselves, but they have to do so within the bounds of the law and their training.

[00:03:48] Speaker 01:
Council, I think that if we issued an opinion that said that, we would look, it would be a very difficult opinion to write and be followed by officers in the field under circumstances, which if this isn't tense, uncertain, and rapidly evolving, I don't know what is.

[00:04:06] Speaker 00:
Well, I can give you a- Council, I have a question after you answer Judge Talman.

[00:04:12] Speaker 01:
Go ahead and answer my question, and then Judge Gould has her questions.

[00:04:15] Speaker 04:
Thank you so much.

[00:04:18] Speaker 04:
So what they should have done is taken cover next to their cars for a few seconds, seen how this continued to evolve.

[00:04:24] Speaker 04:
He didn't fire any more shots at that time.

[00:04:27] Speaker 01:
But he's already hit one of their officers and killed the canine.

[00:04:32] Speaker 01:
I mean, what does the body count have to reach before they can return fire?

[00:04:36] Speaker 04:
Well, what body count do we allow the police to create of innocent people who are nearby?

[00:04:42] Speaker 01:
Well, unfortunately, sometimes bystanders get hit, but that doesn't necessarily convert it into a constitutional tort council.

[00:04:51] Speaker 04:
What if the gunshot came from a crowded bus stop with lots of innocent people right there?

[00:04:55] Speaker 03:
Are you saying the police would be allowed to?

[00:04:58] Speaker 03:
That's the whole point, though, is that these are fact-intensive analyses, and that might be different.

[00:05:04] Speaker 03:
I mean, these decisions have to be made all the time.

[00:05:09] Speaker 03:
You have to show that it's clearly established, and I don't know what you have.

[00:05:15] Speaker 03:
You've got the three cases, Boyd,

[00:05:19] Speaker 03:
Boyd, as I look at it, Boyd seems to be your best case, but I don't find it to carry the weight because there they threw a flash bomb and there was a bystander was hit.

[00:05:31] Speaker 03:
We allowed that to go forward.

[00:05:33] Speaker 03:
But I guess Boyd sort of goes to your hypothetical of going into, and I apologize, Judge

[00:05:40] Speaker 03:
Can I take a step back?

[00:05:41] Speaker 03:
Judge Gould had asked and I totally forgot.

[00:05:44] Speaker 03:
Judge Gould, go ahead and you ask your question and then I'll start on.

[00:05:47] Speaker 00:
My question is a simple one.

[00:05:50] Speaker 00:
Is the record clear that the officer who shot at the car was aware of the passenger sitting there?

[00:06:02] Speaker 04:
One of them admits he heard the radio broadcast that there were three occupants.

[00:06:06] Speaker 04:
The other two say they can't recall if they heard it or not.

[00:06:10] Speaker 04:
The jury can find that they did hear it.

[00:06:12] Speaker 04:
In addition, the jury can find that Sergeant Garcia, when he broke the driver's window, was looking directly across, straight in, and must have seen the passenger.

[00:06:21] Speaker 04:
So I think that if you construe the facts in the light most favorable to the plaintiff, you have to assume that the officers knew that there were innocent passengers in the car.

[00:06:31] Speaker 00:
OK, thank you, Judge.

[00:06:32] Speaker 04:
There were two, is that right?

[00:06:34] Speaker 04:
Yes.

[00:06:35] Speaker 04:
Okay.

[00:06:35] Speaker 04:
The one in the back seat was hiding on the floor and he was unhit.

[00:06:38] Speaker 04:
Okay.

[00:06:39] Speaker 04:
Now, to answer your question, Judge Nelson, we have Boyd versus Benton County.

[00:06:44] Speaker 04:
And I think really what that case says is when the police are going to deploy a significant level of force and there it was merely intermediate force, not deadly force, even in response to a high threat, which in that case there was a high threat.

[00:06:58] Speaker 04:
That's why they had a SWAT team going in.

[00:07:01] Speaker 04:
And they believe that they have reason to believe there's innocent people nearby.

[00:07:05] Speaker 04:
They have to take due regard for the safety of the innocent people.

[00:07:10] Speaker 04:
Now, a similar case.

[00:07:11] Speaker 01:
What about protecting the officer who is now down as a result of the two gunshot wounds that he sustained?

[00:07:17] Speaker 04:
It was a dangerous situation.

[00:07:19] Speaker 04:
There's no question about it, Your Honor, but officers' lives are not worth more than bystanders' lives, and that's what the officers are trained.

[00:07:27] Speaker 01:
The question of weighing whose life is worth more, it's a question of whether or not the law commands that an officer must refrain from using deadly force to protect himself or another.

[00:07:38] Speaker 01:
from harm and you've got an officer who's already down and can't reposition himself.

[00:07:44] Speaker 01:
He's standing out in the open, laying on the ground next to the driver's side of the car after having been shot twice by the driver.

[00:07:53] Speaker 01:
Are you saying that the officers are not entitled to use deadly force to protect him, even though they may be in a position of relative safety?

[00:08:02] Speaker 04:
First, the officer who was shot was repositioning himself.

[00:08:05] Speaker 04:
He was already crawling out of the way to cover behind his car.

[00:08:08] Speaker 04:
And second, the officers are allowed to defend themselves, but only lawfully, and that means they're required to protect the safety of innocent bystanders.

[00:08:17] Speaker 04:
That's what their training says, too.

[00:08:19] Speaker 04:
This is not asking anything of unfair.

[00:08:21] Speaker 01:
So you may have a perfectly cognizable negligence action under state law, but I'm struggling to find where the constitutional tort here is.

[00:08:32] Speaker 04:
Let me add another case.

[00:08:33] Speaker 04:
And we didn't have this in our brief because I didn't find it until recently as I was getting ready.

[00:08:37] Speaker 04:
It's Richards versus Cox, 842 Fed appendix 49.

[00:08:42] Speaker 04:
Judge Talman was on this panel, but it was an Eighth Amendment prison case rising out in Nevada where prison officials allowed prison guards to shoot live shotgun rounds at the floor in the direction of fighting inmates and also innocent bystanders.

[00:08:58] Speaker 04:
And this court held there, it was obvious that you can't use live ammunition near innocent bystanders without taking any precaution for their safety.

[00:09:06] Speaker 01:
You don't think there's a difference between breaking up a prison disturbance where the only people armed are the correctional officers and a gun shot or a gunfight in the field where the both sides are firing at each other?

[00:09:22] Speaker 04:
I don't believe this scenario in this case, where one officer was wounded and crawling out of the way, gave the officers the right to indiscriminately shoot in the direction of innocent people.

[00:09:34] Speaker 01:
As I recall the facts of that prison case, it's more like our decision in the City of Davis case, is it not?

[00:09:42] Speaker 01:
Where the officers fired the pepper balls to break up a melee on the UC Davis campus?

[00:09:49] Speaker 04:
Well, it's a little different than that because they fired the balls to break up the melee to disperse the crowd and they hit an innocent person who was doing anything negative.

[00:10:00] Speaker 04:
In Richards, they were presumably shooting, hoping to hit the fighters, but didn't take any precautions to protect the bystanders who were on the ground as ordered.

[00:10:09] Speaker 03:
What precautions are you talking about?

[00:10:11] Speaker 03:
What precautions should they have taken here?

[00:10:13] Speaker 04:
Here, they should have taken cover behind their cars, waited a few seconds to reassess until they could get a clear target.

[00:10:20] Speaker 03:
I just can't believe that that just has to be a non-starter.

[00:10:22] Speaker 03:
That cannot be clearly established that that's what they had to do.

[00:10:28] Speaker 03:
I mean, when shots are fired, do you have any case where shots were fired in an officer and the response is, you can't fire back?

[00:10:37] Speaker 03:
Of course not.

[00:10:39] Speaker 03:
And there was no case before the judge.

[00:10:42] Speaker 00:
You said, of course not.

[00:10:43] Speaker 00:
Yes.

[00:10:44] Speaker 00:
Isn't this a positive issue to your weather year?

[00:10:48] Speaker 04:
I don't have a case exactly like this, because there's never been a scenario before where officers so recklessly fired live ammunition at innocent bystanders for any reason.

[00:10:59] Speaker 03:
Okay, but counsel, we're not asking for a case on all fours.

[00:11:04] Speaker 03:
That's clear.

[00:11:04] Speaker 03:
Right.

[00:11:05] Speaker 03:
All we're asking for is a case where someone has fired rounds at officers

[00:11:12] Speaker 03:
and they can't shoot back.

[00:11:14] Speaker 03:
I don't think such a case exists because I think such a rule would put our officers at huge risk.

[00:11:21] Speaker 04:
Officers' lives are not worth more than anybody else's life.

[00:11:24] Speaker 00:
Your Honor, when you're not answering Judge Nelson's question, I share his concern.

[00:11:31] Speaker 00:
What I was going to ask you earlier but didn't get a chance to fully articulate was whether

[00:11:41] Speaker 00:
The law has clearly established that an officer who's had someone shooting at him and wounding him, other officers, is not allowed to shoot back.

[00:11:58] Speaker 04:
Yes.

[00:11:59] Speaker 04:
I believe Boyd versus Benton County is dispositive.

[00:12:01] Speaker 04:
I think it's clear.

[00:12:02] Speaker 04:
I think it's close.

[00:12:04] Speaker 04:
And it was a situation that was dangerous enough to require a SWAT team to go in.

[00:12:08] Speaker 04:
They were facing a high level of danger there.

[00:12:10] Speaker 01:
But Council, it takes 45 minutes to an hour to get a SWAT team on the scene and plan for those kinds of raids.

[00:12:22] Speaker 01:
This circumstance didn't allow for that kind of pre-planning.

[00:12:29] Speaker 04:
The pre-planning should have given them even more warning that they were innocent people and to take more precautions.

[00:12:34] Speaker 04:
Yes, you're right.

[00:12:35] Speaker 03:
And that's why they were found, that's why they were denied.

[00:12:37] Speaker 04:
But that's why these officers were trained starting in the police academy about fundamental firearm safety rules.

[00:12:43] Speaker 04:
And they violated every one of those.

[00:12:46] Speaker 04:
And they were warned, you can't fire when you can't acquire a target.

[00:12:50] Speaker 04:
Our expert also says that.

[00:12:51] Speaker 01:
They had acquired the target.

[00:12:52] Speaker 01:
The problem is, because she was in such close proximity as the passenger to the driver, she unfortunately was hit by stray fire.

[00:13:02] Speaker 04:
No, they never acquired the target.

[00:13:04] Speaker 04:
They admit, or they say, they couldn't see through the tinted windows.

[00:13:08] Speaker 04:
And actually, we know that.

[00:13:09] Speaker 03:
Well, they got the target.

[00:13:10] Speaker 03:
Excuse me?

[00:13:10] Speaker 03:
They hit the target and the window was broken.

[00:13:12] Speaker 03:
They also hit Ms.

[00:13:13] Speaker 04:
Cuevas in the passenger side.

[00:13:14] Speaker 03:
Yeah, but they didn't hit the passenger in the backseat.

[00:13:17] Speaker 03:
So, to say they did that they were just shooting randomly.

[00:13:20] Speaker 03:
I mean, again, it goes to Judge Tolman's point.

[00:13:22] Speaker 03:
You have potential negligence claims that you can pursue in state court, correct?

[00:13:27] Speaker 04:
Yes.

[00:13:27] Speaker 03:
Okay.

[00:13:28] Speaker 04:
and it was basically you want to reserve time for rebuttal i will just one last point sure it was randomly because for example the sergeant fired 18 shots and can only account for four of them he can't justify 14 of his shots that's essentially indiscriminate you're asking us to write an opinion which

[00:13:45] Speaker 01:
in real life just doesn't make any sense.

[00:13:48] Speaker 01:
I mean, once you get into a gunfight, yeah, I realize they're trained to try and count the number of shots that they fired, but I think you're asking us to render a rule that would be superhuman and would be laughable if we issued a decision saying what you want us to say.

[00:14:05] Speaker 04:
I think it would be courageous and it would be the right thing to do, but I'll reserve the rest of my time.

[00:14:10] Speaker 04:
Thank you, Council.

[00:14:10] Speaker 00:
Council, when you're making your rebuttal,

[00:14:14] Speaker 00:
The issue that I think you need to focus on is whether the rule you want is not courageous, but rather whether it's required by clearly established precedent.

[00:14:30] Speaker 04:
Yes, Your Honor.

[00:14:36] Speaker 02:
Good morning, Your Honors, and may it please the Court, Bruce Prate for the appellees.

[00:14:40] Speaker 02:
I don't know if I need to reserve a couple of minutes,

[00:14:43] Speaker 03:
Well, no, because you don't get rebuttal.

[00:14:46] Speaker 03:
You don't need to use up all your time if that's what you're asking.

[00:14:50] Speaker 02:
I suspect I may not.

[00:14:52] Speaker 03:
Well, let me start with this.

[00:14:54] Speaker 03:
Do you agree that the district court erred as far as the seizure?

[00:15:01] Speaker 03:
The district court, do you agree that the district court found there was no seizure of Ms.

[00:15:05] Speaker 03:
Cuevas?

[00:15:07] Speaker 02:
I do agree that the court found there was no seizure, but I don't agree that the court was wrong.

[00:15:12] Speaker 02:
Given the fact undisputed facts that mr. Castro the driver shooter Came to a stop because he swerved off the road and got stuck in the mud He didn't submit to authority which every case okay, but but then but then the windows broken correct The dog is thrown through the window

[00:15:31] Speaker 03:
then the shots are fired.

[00:15:33] Speaker 03:
I don't know at what point seizure happens, but boy, I have a hard time with the idea that there's not a seizure at some point along that spectrum.

[00:15:41] Speaker 02:
Well, it's a very fine line, I would agree.

[00:15:43] Speaker 02:
At some point in time, obviously, when the officers returned fire, it was tantamount to a seizure of Mr. Castro.

[00:15:52] Speaker 03:
Oh, but not of Cuevas?

[00:15:53] Speaker 02:
Well, and I think factually, we need to understand that, and the court's already pointed out, Officer Garcia, the canine handler,

[00:16:01] Speaker 02:
was wounded and out in the open, which is why officers returned fire.

[00:16:05] Speaker 02:
Their own expert, which we pointed out in the record, established that Mr. Castro, the shooter, fired at least two rounds that killed the police dog, two more rounds through the window that hit Officer Garcia in the chest and the wrist.

[00:16:20] Speaker 02:
Then he, Mr. Castro, crawled across the passenger side and fired two more rounds out the right front passenger side.

[00:16:27] Speaker 01:
Before officers fired again and finally stopped him.

[00:16:31] Speaker 02:
No, the officers fired during the course of all this.

[00:16:33] Speaker 02:
The officers fired.

[00:16:34] Speaker 01:
So he collapsed and died after, but not before he got two more rounds off after he crawled out of the car.

[00:16:41] Speaker 02:
Correct.

[00:16:42] Speaker 02:
OK.

[00:16:42] Speaker 02:
And as the Supreme Court pointed out in Plumhoff versus Rickard, it was the driver who placed, in this case, Ms.

[00:16:49] Speaker 02:
Cuevas in danger by not only the pursuit, he could have ended that, but also by crawling across her path.

[00:16:56] Speaker 02:
The officers have no choice but to follow the train of the shooter

[00:17:00] Speaker 02:
who is initially shooting out the window, then crawls across her, which they're returning fire to him.

[00:17:05] Speaker 02:
And unfortunately and tragically, she's in the path.

[00:17:08] Speaker 03:
Can I add, I don't know how much this matters in this case, but I was interested in the idea that they put the canine through the window.

[00:17:19] Speaker 03:
Is that standard procedure in these circumstances and was that driven?

[00:17:25] Speaker 03:
because of the, because of the high speed chase and this became a felony chase.

[00:17:29] Speaker 03:
Is that what justified it?

[00:17:31] Speaker 02:
Right.

[00:17:32] Speaker 02:
It's, I can't say it's standard.

[00:17:34] Speaker 02:
I can't say it's, it's not standard.

[00:17:35] Speaker 02:
I mean, coincidentally, I was a police canine handler when I was an officer and I can tell you, I've done the same thing.

[00:17:40] Speaker 02:
Um, the officer did direct his dog to the cast, Mr. Castro, the driver.

[00:17:48] Speaker 02:
It's, it's take, frankly, it's a moot point as to whether that had any effect on Ms.

[00:17:52] Speaker 02:
Cuevas.

[00:17:53] Speaker 02:
because she was never bitten by the dog.

[00:17:55] Speaker 02:
She was never the subject of the dog.

[00:17:56] Speaker 03:
It is, but I was trying, and I'm probably expanding this beyond where we need to go, but it seems to me, and I don't think the officers did that here, but if the officers created the need for Castro to shoot, and then that causes the gunfight,

[00:18:18] Speaker 03:
I don't know what that would be.

[00:18:21] Speaker 03:
Police endangerment or something like that.

[00:18:24] Speaker 03:
I don't think that's what's been argued here, but that was the one thing I just wanted to clarify.

[00:18:29] Speaker 02:
And I think to the court's point and Judge Tallman's point, whether that's negligence under state law, that that violated some police standard,

[00:18:38] Speaker 02:
I don't know when we may have to lay down the road.

[00:18:41] Speaker 01:
As a canine handler, don't you frequently send dogs into closed spaces that would otherwise endanger the officer if you sent a human in?

[00:18:49] Speaker 01:
That's exactly the point of the dog.

[00:18:51] Speaker 01:
That's why they have the dog.

[00:18:53] Speaker 01:
Sadly, unfortunately, they sometimes are injured or killed in doing that.

[00:18:57] Speaker 01:
But at least it's not a human that's injured.

[00:19:00] Speaker 02:
And in this case, unfortunately, the dog and the human were both shot.

[00:19:05] Speaker 02:
So I just don't know how the court creates a rule that tells police officers, you can't defend yourself and other officers when you're being fired upon.

[00:19:13] Speaker 02:
And there clearly is no established case to that effect.

[00:19:17] Speaker 02:
And in fact, Flettys versus San Diego, which we cited at several points in our brief from this court, was a circumstance where the driver in a pursuit came to rest not because of submission to authority, but because

[00:19:34] Speaker 02:
he hit a solid object, much like the plaintiff in this, or the decedent in this case, where he stopped in the roadway.

[00:19:41] Speaker 02:
Officers then fired upon him and unfortunately hit the passenger.

[00:19:47] Speaker 02:
And this court said there was no seizure in that case because the driver did not submit to authority.

[00:19:53] Speaker 02:
At most it was an attempted seizure, but until the individual submits to the authority, there is no seizure under, whether it's Lewis, whether it's

[00:20:03] Speaker 02:
Scott versus Harris, Brower, all the Supreme Court cases say the seizure only occurs when the individual submits to authority.

[00:20:12] Speaker 02:
At most, under the Fourth Amendment in California v. Hodary, it's an attempted seizure at most until the individual submits to the authority, which did not occur in this case, to answer Judge Nelson's question.

[00:20:26] Speaker 02:
I don't believe the seizure at the threshold issue even occurred.

[00:20:30] Speaker 02:
And then clearly, to Judge Gould and the rest of the courts,

[00:20:34] Speaker 02:
position, there is nowhere close to a clearly established case that would tell these officers beyond debate that the split-second decisions they were making while taking fire could somehow have violated some clearly established constitutional right under these specific facts or even anything close.

[00:20:54] Speaker 02:
And in fact, Flettys would suggest that the facts, the clearly established law was they could do exactly that, although in Flettys, they weren't even taking fire.

[00:21:06] Speaker 02:
I don't know if the court needs anything else, but... Judge Gould?

[00:21:09] Speaker 02:
Judge Gould, do you have any questions?

[00:21:11] Speaker 00:
No, I have no other questions.

[00:21:13] Speaker 00:
Thank you.

[00:21:13] Speaker 02:
Okay.

[00:21:14] Speaker 02:
Thank you, Your Honor.

[00:21:15] Speaker 02:
Okay.

[00:21:15] Speaker 02:
Thank you.

[00:21:16] Speaker 02:
All right.

[00:21:16] Speaker 02:
Thank you, Your Honors.

[00:21:22] Speaker 04:
Factually, all the officers said they could not see into the car while they were shooting, so the defendants claim that they were adjusting their aim to account for the movement of the driver is baseless, and there's no way the jury could find that.

[00:21:34] Speaker 04:
Now, in terms of clearly established law.

[00:21:36] Speaker 01:
But there's no dispute in the record that he did crawl from the driver's position to the right rear passenger door in order to get out of the car.

[00:21:50] Speaker 04:
Yes, we don't know when.

[00:21:51] Speaker 04:
And we know he did that after he was shot.

[00:21:53] Speaker 04:
It could have happened after the officer stopped shooting.

[00:21:57] Speaker 01:
And I assume the record doesn't conclusively establish

[00:22:00] Speaker 01:
when Miss Quavis was actually hit in the exchange of gunfire because it all happened so quickly.

[00:22:06] Speaker 01:
Ballistics aren't going to help you much under those circumstances.

[00:22:14] Speaker 04:
I think Boyd and Richards v. Cox clearly established the law, at least to the point set by the Supreme Court in Taylor v. Riojas recently where they said, quote, a general constitutional rule already identified in decisional law

[00:22:31] Speaker 04:
They apply with obvious clarity to the specific conduct in question.

[00:22:34] Speaker 03:
What was the constitutional violation in that Supreme Court case?

[00:22:38] Speaker 04:
That was an Eighth Amendment violation.

[00:22:39] Speaker 03:
So the Supreme Court has said, Fourth Amendment cases, you need more specificity just by nature.

[00:22:46] Speaker 03:
of the claim.

[00:22:51] Speaker 04:
The Supreme Court has consistently said, has always said, that an obvious case doesn't require a prior case, and you don't need a previous case on offer.

[00:22:59] Speaker 03:
Right.

[00:23:00] Speaker 03:
Well, we can get into obviousness.

[00:23:02] Speaker 03:
We had a recent decision in the Wade case from this court, which said obviousness is very difficult and almost impossible in a Fourth Amendment case.

[00:23:14] Speaker 03:
How would you distinguish that?

[00:23:15] Speaker 04:
I would say that Wade is out of step with other cases from the Ninth Circuit, to be honest.

[00:23:19] Speaker 04:
We're bound by it, right?

[00:23:21] Speaker 04:
Well, we're also bound by the Aguirre case.

[00:23:23] Speaker 04:
And there was another recent case last week.

[00:23:25] Speaker 03:
And that said it was obvious in a Fourth Amendment context.

[00:23:28] Speaker 04:
Yes.

[00:23:28] Speaker 04:
And there was a case last week that also found an obvious violation.

[00:23:32] Speaker 04:
Now, how could any reasonable officer believe, even if a driver has fired shots out of the car, that it's lawful to spray and pray many, many gunshots into a car they've seized and no contains innocent passengers with no regard for the safety of the passengers

[00:23:50] Speaker 04:
and in violation of their own training.

[00:23:52] Speaker 04:
And I would contend that's an obvious situation.

[00:23:55] Speaker 04:
At least it comes close enough to being governed by general constitutional rules, which I think get very close from the Boyd case and the Richards versus Cox case.

[00:24:05] Speaker 04:
Thank you, Your Honors.

[00:24:06] Speaker 03:
Thank you so much.

[00:24:07] Speaker 03:
Thank you to both counsel for your arguments in this case.

[00:24:09] Speaker 03:
The case is now submitted.