[00:00:05] Speaker 00:
Good morning.

[00:00:06] Speaker 03:
Good morning.

[00:00:07] Speaker 00:
Charles Tony Bacuda on behalf of Appellant Bradley Rose.

[00:00:10] Speaker 00:
If it pleases the court, this is an obvious case of a constitutional violation and excessive force.

[00:00:18] Speaker 00:
No objectively reasonable officer in Officer Farney's position would have believed that Bradley Rose posed a significant threat of death or serious bodily injury.

[00:00:29] Speaker 00:
Every Grand Vicon or factor that's typically analyzed in these cases cuts in favor of not using lethal force.

[00:00:38] Speaker 00:
Officer Farney admits that he appreciated when he was at the scene that Bradley Rose was mentally disturbed, couldn't appreciate what was going on and what was confused and confused.

[00:00:54] Speaker 00:
Yet, Officer Farney failed to take any of that into account and reassess the situation

[00:01:00] Speaker 00:
and implement that into his calculus as to how he's going to handle the situation.

[00:01:05] Speaker 00:
And as this court is well aware, policing is dynamic, and officers must always reassess their situation.

[00:01:12] Speaker 03:
Counsel, even if we agree with you that there was a constitutional violation, does qualified immunity apply in this case?

[00:01:23] Speaker 00:
It does not.

[00:01:23] Speaker 03:
Why not?

[00:01:24] Speaker 03:
So you have to

[00:01:27] Speaker 03:
persuade us that there is clearly established precedent.

[00:01:33] Speaker 03:
And so it would have to be a case that's close to the facts of this case that would put the officer on notice that what he did violated the constitutional rights of the deceased.

[00:01:44] Speaker 03:
So what case, what's the closest factual

[00:01:49] Speaker 03:
case that you have that would have put the officer on notice that what he did under the circumstance of this case amounted to excessive force.

[00:01:57] Speaker 00:
In our briefing, we set forth that this was the obvious case and that Granvy, Connor and Garner would dictate.

[00:02:05] Speaker 00:
But then on our briefing again, we recognize that

[00:02:09] Speaker 00:
Elder B. Holloway allows the court and requires this court to consider all authority, and we set forth several cases.

[00:02:15] Speaker 03:
Well, the Supreme Court has told us that we cannot make this decision at a high level of generality, that we have to look at the facts of similar cases to see, because the officer is not able to operate at a high level of generality in the circumstance.

[00:02:34] Speaker 03:
He has to look at the circumstances that are unfolding to decide what force to use.

[00:02:38] Speaker 03:
Supreme Court has told us that we have to do the same thing to look at specific facts.

[00:02:43] Speaker 03:
If we disagree with you that this is an obvious case, do you lose?

[00:02:48] Speaker 00:
No, we don't.

[00:02:49] Speaker 00:
And I understand what the court's mandate was in Casella versus Hughes, but obviously there's also case law that says you can't use Casella versus Hughes for every novel situation in use of force and excessive force by an officer to allow them qualified immunity.

[00:03:02] Speaker 00:
We cited three cases in our brief.

[00:03:04] Speaker 00:
It was County versus Hayes, which I know you disagreed with.

[00:03:07] Speaker 00:
We also cited Diorle, which sets forth the proposition that you can't use force when it's unwarranted.

[00:03:15] Speaker 00:
In doing my

[00:03:17] Speaker 00:
research over the weekend.

[00:03:19] Speaker 02:
What you just described for Durley being the holding, you did at a very high level of generality.

[00:03:26] Speaker 02:
And in addition to warning us not to repeatedly use a high level of generality, the Supreme Court specifically called us out for over reading Durley specifically in one of its cases.

[00:03:40] Speaker 00:
Well, I think you have to take all the cases collectively because there are propositions from every single case when applied.

[00:03:47] Speaker 00:
clearly establishes that lethal force can't be used in this situation.

[00:03:53] Speaker 00:
And you're not going to find cases like this because, simply put, there are a lot of cases where lethal force is warranted and used and it's objectively reasonable.

[00:04:02] Speaker 00:
And we can go through those cases.

[00:04:04] Speaker 00:
Those are the cases where an individual may be armed and they're not showing their hands to an officer.

[00:04:09] Speaker 00:
The officer has a reasonable belief that the person may be armed and they

[00:04:13] Speaker 00:
use lethal force.

[00:04:14] Speaker 00:
There are the cases where the person is known to be armed or have a weapon or could, and they have their hands where the officer can see them, yet the officer commands them not to move their hands.

[00:04:23] Speaker 00:
They move their hands, the officer uses lethal force.

[00:04:26] Speaker 00:
It's warranted there.

[00:04:27] Speaker 00:
There's the cases where there's a vehicle involved, and the officer's life may be in risk.

[00:04:32] Speaker 00:
That's Porter versus Osborne.

[00:04:34] Speaker 00:
There's other cases where an officer is losing an active combat hand-to-hand situation.

[00:04:39] Speaker 00:
They've used less intrusive alternatives, and those have failed.

[00:04:42] Speaker 02:
But the key, I mean, one of the key issues is the other side of the ledger, not just what is the collection of cases and the rules supplied by them.

[00:04:53] Speaker 02:
But what are the facts to which they're being applied here?

[00:04:57] Speaker 02:
And so what do we take as the facts?

[00:05:01] Speaker 02:
It's undisputed that he did at least strike the officer once and then, but he also claims, the officer claims that he reached

[00:05:11] Speaker 02:
for the gun.

[00:05:12] Speaker 02:
Is that something we have to disbelieve for purposes of summary judgment here?

[00:05:17] Speaker 00:
That's correct, Your Honor.

[00:05:18] Speaker 00:
That's in dispute, as recognized by the district court correctly.

[00:05:21] Speaker 00:
And there's several contradictions with respect to Farney's accounting of events, with respect to the physical evidence that completely contradict his version of events.

[00:05:30] Speaker 02:
Now, what's... So then a reasonable trier could just set his version aside as not credible.

[00:05:36] Speaker 02:
But then what replaces it?

[00:05:38] Speaker 02:
What are the facts that are then established, as you understand them?

[00:05:42] Speaker 02:
Taking plaintiff's evidence.

[00:05:44] Speaker 02:
After the strike, what are the facts that then happen that lead up to the shooting?

[00:05:50] Speaker 02:
In your view, what should a reasonable jury conclude and what do we have to take as true, in your view?

[00:05:57] Speaker 00:
Well, number one, that there was never a grab for a firearm.

[00:06:00] Speaker 00:
That's a major fact in the case that would be in plaintiff's favor.

[00:06:04] Speaker 00:
That never occurred.

[00:06:05] Speaker 00:
as correctly recognized by the district court.

[00:06:07] Speaker 00:
Second, and very importantly, that Farney disengaged to a safe distance at the time that he fired the fatal shots.

[00:06:16] Speaker 00:
And by his own testimony, he said he did disengage, and when he disengaged, he then elected to use lethal force.

[00:06:24] Speaker 00:
Now, what is very critical about this analysis is that his accounting of the lethal force event, it doesn't square with the physical evidence.

[00:06:33] Speaker 00:
because in his statement given to the investigating detectives, which is Exhibit K in the record, he claims that he took his firearm and fired it from just above his hip at a candid position upwards.

[00:06:49] Speaker 00:
The autopsy report shows all three lethal shots entering from his chest level at a downward trajectory.

[00:06:56] Speaker 00:
And so what should a trier infer from that?

[00:07:00] Speaker 00:
That one,

[00:07:01] Speaker 00:
Officer Farney's accounting of events isn't accurate.

[00:07:04] Speaker 00:
And of course, we don't have the body-worn camera, which he elected not to wear when this occurred.

[00:07:09] Speaker 02:
But what, from that trajectory, what is your alternative theory as to where his hands were when he fired the gun that you think the jury should infer from the trajectory evidence?

[00:07:21] Speaker 00:
The jury could infer that he was at a safe distance, that he had his arm extended, and that he fired three shots downward into his chest that exited lower in his body, which is what the autopsy shows.

[00:07:32] Speaker 02:
So in your view, he had time to raise it up and aim, and there's a few seconds more deliberation?

[00:07:43] Speaker 00:
In addition to that, he has time to holster his gun and use less lethal alternatives.

[00:07:47] Speaker 00:
He's armed with a duty baton, a taser,

[00:07:51] Speaker 00:
He's taught to take people into custody when there's a physical encounter without shooting them to death.

[00:07:58] Speaker 00:
He's trained in defensive tactics, pain compliance techniques.

[00:08:01] Speaker 00:
He knows nerves and brachial stunts.

[00:08:03] Speaker 00:
He knows all these things.

[00:08:05] Speaker 00:
And he has that at his capabilities.

[00:08:07] Speaker 00:
And he's not only expected to utilize that, he's required to utilize that before escalating to deadly force.

[00:08:13] Speaker 00:
And in addition to that, this is an individual that was not a known criminal,

[00:08:18] Speaker 00:
Farney knew he had no wants or warrants.

[00:08:20] Speaker 00:
This person's never been arrested.

[00:08:21] Speaker 00:
He had no disciplinary issues in high school.

[00:08:24] Speaker 00:
He was a computer nerd that was 150 pounds.

[00:08:27] Speaker 00:
And you have Farney, who's trained in defensive tactics, who's 220 pounds.

[00:08:33] Speaker 00:
At the time of the lethal shooting, he has multiple backup present.

[00:08:37] Speaker 01:
He gives you- Counsel, let me go back to my colleagues' questions.

[00:08:41] Speaker 01:
In light of all of you, of what you've said, what is the case

[00:08:45] Speaker 01:
that officer should have known of in advance that would have told him not to do what you're criticizing?

[00:08:51] Speaker 00:
It's not only is it an obvious case, but it's Diorle, it's County versus Hayes, it's Newmaker.

[00:08:58] Speaker 00:
In addition to that, when I was preparing over the weekend, I know it's not a Ninth Circuit case, but there's a case called Tanuvasa versus Morton, it's Central District of California, it's 2014 Westlaw,

[00:09:08] Speaker 00:
12588685.

[00:09:09] Speaker 00:
In that particular case, a single officer was pursuing robbery suspects.

[00:09:16] Speaker 00:
The officer was 6'1", 180 pounds.

[00:09:19] Speaker 00:
A suspect that's 6'6", 400 pounds hits him, dislocates his shoulder.

[00:09:25] Speaker 00:
There's a fight on the ground.

[00:09:27] Speaker 00:
His duty weapon goes off.

[00:09:29] Speaker 00:
The officer separates four feet.

[00:09:31] Speaker 00:
He then shoots him to death.

[00:09:34] Speaker 00:
The district court there said that

[00:09:36] Speaker 00:
is not a constitutional use of force or that a jury could conclude that and denied qualified immunity.

[00:09:41] Speaker 00:
Out of fairness to the court, that court, that case was found over the weekend and that's, I'm citing it here for the first time, but that is a case in the relevant body of law that the court may consider and should consider pursuant to Elder v. Holloway.

[00:09:56] Speaker 02:
But in Rivas Villegas, the Supreme Court said if a case is materially distinguishable, then it doesn't

[00:10:07] Speaker 02:
you know, provide the sort of squarely governing authority that Casella talks about.

[00:10:11] Speaker 02:
And like, you know, something like Durley, I mean, Durley emphasized that it was an unarmed man who had committed no serious offense.

[00:10:21] Speaker 02:
I mean, here at least he had already committed several very dangerous traffic violations.

[00:10:27] Speaker 02:
He had committed a battery on the officer, which those are serious offenses.

[00:10:32] Speaker 02:
So right away it doesn't,

[00:10:35] Speaker 02:
It seems that dearly is materially distinguishable, just on that fact alone.

[00:10:39] Speaker 00:
Well, dearly stands for the proposition that when you take an individual who's mentally disturbed into custody, you have to treat them differently than a known violent felon or someone that's committed violent crimes.

[00:10:51] Speaker 00:
With respect to Bradley Rose, the crimes that they claim he committed are all mens rea-specific intent crimes.

[00:11:00] Speaker 00:
The second that

[00:11:02] Speaker 00:
Officer Farny confronts Bradley Rose, and by his own testimony appreciates he doesn't know what's going on, he's staring blankly, and he's completely confused.

[00:11:11] Speaker 00:
The calculus changes as to what happened prior.

[00:11:14] Speaker 00:
Now, the pursuit that they tried to paint as some dangerous, life-threatening pursuit, it wasn't like a normal effort to pull over a motorist.

[00:11:24] Speaker 00:
He was driving at 30 to 35 miles per hour.

[00:11:27] Speaker 00:
He was driving in ways that didn't make sense.

[00:11:29] Speaker 00:
He was pulling over randomly.

[00:11:31] Speaker 00:
The officers appreciated that it wasn't normal, so much so that one of the officers said, I believe he's having mental issues.

[00:11:38] Speaker 00:
So that's, with respect to Diorle, it's for that proposition that this is a different calculus.

[00:11:43] Speaker 00:
And like you recognize in the state of Hernandez, when an officer has time, they're supposed to reassess the situation.

[00:11:49] Speaker 00:
And like McBride should have reassessed the fifth and sixth shots there that you found could be excessive, that's what Farney failed to do here.

[00:11:56] Speaker 00:
When he steps outside of his vehicle, first of all, he needs to decide what the immediate threat is, and that's per Andrews.

[00:12:04] Speaker 00:
And the immediate threat at that time is nothing.

[00:12:06] Speaker 00:
You have Roe standing there, not running, unarmed.

[00:12:10] Speaker 00:
This is his testimony.

[00:12:13] Speaker 00:
He claims that he gave commands at the top of his lungs and pointed his weapon and approached Bradley Roe's walking and giving more commands.

[00:12:24] Speaker 00:
He said that in his statement to investigators.

[00:12:26] Speaker 00:
He repeated that in the deposition.

[00:12:28] Speaker 00:
He did not know at the time he made those statements that video surveillance from a nearby house captured him actually running towards Bradley Rose and contradicting everything he said he did.

[00:12:38] Speaker 00:
In addition to all this, everything he did on the night of the incident was contrary to his training.

[00:12:43] Speaker 00:
And that's a factor that this court should consider as set forth in Drummond v. City at Anaheim.

[00:12:50] Speaker 00:
He didn't put on his body-worn camera.

[00:12:51] Speaker 00:
He wasn't recording.

[00:12:53] Speaker 00:
He didn't call in his involvement in the police pursuit like he's supposed to do.

[00:12:57] Speaker 00:
When he gets to the scene, he says it's a high-risk stop.

[00:13:00] Speaker 00:
He's supposed to wait, use his backup, take a cover position, give commands to the individual.

[00:13:05] Speaker 00:
He's supposed to also, if the person has a behavioral health disturbance or is mentally disturbed, he's supposed to not speed up the situation.

[00:13:13] Speaker 00:
He's supposed to calm things down.

[00:13:15] Speaker 00:
He's supposed to talk to the individual.

[00:13:16] Speaker 00:
He didn't deescalate.

[00:13:18] Speaker 00:
He gave no deadly force warnings.

[00:13:20] Speaker 00:
He did none of these things.

[00:13:21] Speaker 00:
Within three or four seconds of being in contact with Bradley Rose, he shot him dead.

[00:13:26] Speaker 00:
We have no objective

[00:13:29] Speaker 00:
analysis of actually what occurred because he wasn't wearing his body worn camera.

[00:13:33] Speaker 00:
But what is critical is that his body worn camera, although he wasn't wearing it, started recording in his vehicle because it automatically started recording when a gun was drawn.

[00:13:44] Speaker 00:
And what he said is completely proven false by the body worn camera.

[00:13:48] Speaker 00:
He claims he got out of his vehicle and started giving commands at the top of his lungs.

[00:13:54] Speaker 00:
His body worn camera was recording audio.

[00:13:56] Speaker 00:
It doesn't capture any of that because it never happened.

[00:14:00] Speaker 00:
He's two to three feet from his vehicle and he's claiming he's giving commands, shouting them as loud as he can.

[00:14:06] Speaker 00:
You can't hear it on the body worn camera.

[00:14:08] Speaker 00:
Yet, Officer Schrader later in that same audio body worn camera from 40 feet away yells a command that can be picked up and heard on the body worn camera.

[00:14:19] Speaker 00:
So that's one of the major errors in the district court's opinion.

[00:14:25] Speaker 00:
is they concluded that commands have been given and conducted their analysis that way.

[00:14:30] Speaker 00:
I'd like to reserve just 30 seconds if I could.

[00:14:32] Speaker 00:
All right.

[00:14:32] Speaker 03:
Thank you, counsel.

[00:14:33] Speaker 03:
We'll give you a minute for rebuttal.

[00:14:41] Speaker 04:
Good morning, your honors.

[00:14:43] Speaker 04:
My name is Justin Ackerman, and I represent the defendant at police in this matter.

[00:14:47] Speaker 04:
Your honor, the version of the facts that you just heard involve a retelling of facts

[00:14:52] Speaker 04:
that involves a good deal of speculation and simplification.

[00:14:55] Speaker 04:
And those aren't my words.

[00:14:56] Speaker 04:
Those are the district court's words, and it's ruling.

[00:15:00] Speaker 04:
Plaintiff wants to imagine that this case started when Deputy Farney pulled behind Mr. Rose at the house at McVicker.

[00:15:08] Speaker 04:
This case didn't start there.

[00:15:09] Speaker 04:
It started eight to 12 minutes earlier when there was a series of events that's uncontested that Mr. Rose was driving erratically.

[00:15:17] Speaker 04:
He was endangering the safety of the community and the officers at issue.

[00:15:23] Speaker 04:
He was driving so dangerously, he was requiring the officers to jump out of his way as he hit their cars and swerved onto the other side of the road and almost hit other pedestrians and trucks.

[00:15:37] Speaker 04:
He put the officers in fear for their life during this pursuit.

[00:15:41] Speaker 04:
When he finally stopped at the residence at issue, the officers did not know what he was going to do.

[00:15:48] Speaker 04:
They did not know if he was going to go inside that residence and create a hostage situation.

[00:15:52] Speaker 04:
They did not know, as he stood at the door jam of his car, what he had in that car.

[00:15:58] Speaker 04:
But they did know that this particular individual, regardless of his prior criminal history, which they were also unaware of, and regardless of anything he might have done in the past, was acting erratically and violently that evening.

[00:16:08] Speaker 04:
They needed to control somebody who was out of control.

[00:16:13] Speaker 04:
And so, for those reasons, it is entirely reasonable for officer... Well, but you have to have, at the moment of shooting,

[00:16:19] Speaker 02:
You don't get to shoot him just because he engaged in all the behavior you've just described up to that point.

[00:16:27] Speaker 02:
Certainly not.

[00:16:27] Speaker 02:
It has to be that it is warranted by the immediate circumstances that precede it.

[00:16:34] Speaker 02:
The problem, of course, is that the officer doesn't have his body worn camera on.

[00:16:40] Speaker 02:
And so he does not get the benefit of the Scott v. Harris rule that we take the videotape as true and even contrary to

[00:16:50] Speaker 02:
sworn things that contradict what's obviously on the videotape.

[00:16:54] Speaker 02:
So instead, we have to circumstantially infer what were the facts that he confronted, and what are those facts, as you see them, viewed in the light most favorable to the plaintiff?

[00:17:06] Speaker 04:
Certainly, Your Honor.

[00:17:07] Speaker 04:
So I want to start off first and foremost with Officer Farny's sworn testimony.

[00:17:11] Speaker 04:
An officer's sworn testimony is evidence in the record that must be disproven, materially.

[00:17:17] Speaker 03:
No, that's not necessarily true.

[00:17:19] Speaker 03:
Because we're supposed to take the facts in the light most favorable to the plaintiff.

[00:17:23] Speaker 03:
And so if that testimony contradicts the plaintiff's, what's favorable to the plaintiff, then we don't take that testimony.

[00:17:33] Speaker 04:
I would disagree with that, Your Honor.

[00:17:37] Speaker 04:
Just because an officer gives sworn testimony doesn't mean it's automatically disproven because we interpret the facts in light most favorable to the plaintiff.

[00:17:44] Speaker 02:
You may be right in the sense that there has to be a basis in the record.

[00:17:48] Speaker 02:
on which a jury could reasonably discredit it.

[00:17:51] Speaker 02:
But he's pointed out three things.

[00:17:54] Speaker 02:
You know, Farny said that he walked the video from the neighbor shows that he ran.

[00:18:00] Speaker 02:
Farny said that he shot it from his hip.

[00:18:03] Speaker 02:
The trajectory evidence from the autopsy shows that the bullet went downward, which shows that that wasn't true.

[00:18:11] Speaker 02:
He claimed that he was shouting commands.

[00:18:14] Speaker 02:
The body worn camera that was left in the car

[00:18:16] Speaker 02:
which should have recorded those didn't.

[00:18:18] Speaker 02:
Those are three things that a jury could latch onto to say this guy is a liar and I reject all of it.

[00:18:25] Speaker 02:
So now with that taken as true, what do you have as the facts that he confronted at this scene?

[00:18:31] Speaker 04:
Those aren't material facts, Your Honor, and here's why.

[00:18:33] Speaker 02:
One... No, no, no.

[00:18:35] Speaker 02:
Those facts themselves don't have to be material, but they provide a jury a basis

[00:18:41] Speaker 02:
a circumstantial basis to say, I think the officer is a liar.

[00:18:46] Speaker 02:
And therefore, when he claims he was reaching for the gun, I don't believe that.

[00:18:50] Speaker 02:
And therefore, we, reviewing summary judgment record, have to take as true that he wasn't reaching for the gun.

[00:18:57] Speaker 04:
Your honor, I go back to there must be a dispute of material fact in the record.

[00:19:02] Speaker 04:
And in that regard, there is not a dispute of material fact.

[00:19:05] Speaker 04:
The facts admitted are that he was punched by him when he went to go arrest him.

[00:19:10] Speaker 04:
He was struck by him as a uniformed police officer.

[00:19:13] Speaker 04:
That is an aggression that is unjustified and entirely improper.

[00:19:17] Speaker 04:
Correct.

[00:19:17] Speaker 02:
But then, but then he does admittedly put some space between himself and Mr. Rose.

[00:19:27] Speaker 02:
And then what do we have as the facts?

[00:19:31] Speaker 04:
What you have, Your Honor, and this is the testimony of the other two officers on scene, is that they are engaged in an active fight.

[00:19:37] Speaker 04:
Plaintiff will only admit there was a singular strike, but he has no basis to argue there weren't more.

[00:19:42] Speaker 04:
The other officers on scene all testified that he was being struck multiple times in the head, the shoulder, the chest, and post-accident photos show bruising on both sides of his face.

[00:19:53] Speaker 04:
You can't punch somebody once and bruise both sides of the face.

[00:19:57] Speaker 04:
It's physically impossible.

[00:19:59] Speaker 04:
He was in an active fight with him, and there was a grab on the gun.

[00:20:03] Speaker 04:
Again, they have no evidence to affirmatively demonstrate that there wasn't the grab.

[00:20:08] Speaker 04:
There was fingerprint evidence that corroborated his account that there was a grab on the gun.

[00:20:12] Speaker 03:
What was the fingerprint evidence?

[00:20:14] Speaker 03:
Was Mr. Rose's fingerprints on the gun?

[00:20:16] Speaker 04:
The fingerprint analysis showed that there were partial prints on the gun.

[00:20:20] Speaker 04:
There could be no affirmative match because they were partial, but it corroborates his account that there was some other evidence that shows that his gun was grabbed.

[00:20:28] Speaker 04:
It doesn't disprove his account either.

[00:20:30] Speaker 04:
That only supports it.

[00:20:32] Speaker 04:
And in that regard, the autopsy report is entirely improper.

[00:20:36] Speaker 04:
Plaintiff does not have an expert to link up the ballistics here.

[00:20:39] Speaker 04:
And this court in Smith v. Agdeca, and I'm trying butchering the name, clearly said you need an expert to link that up.

[00:20:47] Speaker 04:
Otherwise, it is simply argument of counsel.

[00:20:50] Speaker 04:
There's no expert in this record that supports plaintiffs' argument here that the ballistics, as they argue it, somehow contradicts materially Deputy Farney's account.

[00:21:00] Speaker 04:
And in addition to that, even assuming there was some sort of angular argument, it says nothing about whether there was a grab right before the shooting.

[00:21:10] Speaker 04:
It just describes the shooting.

[00:21:12] Speaker 04:
And that's not a material fact in that regard.

[00:21:15] Speaker 04:
And so all this court is left with

[00:21:17] Speaker 04:
is Deputy Farny's testimony that there were grabs on the weapon, sworn testimony, and corroborating evidence in the record between the fingerprint evidence and, quite frankly, the conduct that occurred right beforehand.

[00:21:29] Speaker 04:
He was just assaulted.

[00:21:30] Speaker 04:
He was assaulted multiple times.

[00:21:32] Speaker 04:
This person was driving erratically.

[00:21:34] Speaker 04:
This person was behaving incredibly violent.

[00:21:36] Speaker 04:
This is all consistent with his account.

[00:21:39] Speaker 04:
And his account was consistent the entire time, from the time that his post-accident testimony was taken with regard to the grab all the way through the case.

[00:21:47] Speaker 04:
And so for those reasons, I don't think the grab is in any way materially disputed.

[00:21:52] Speaker 04:
And it's entirely a basis for the court to rely on it.

[00:21:54] Speaker 04:
It's the reason why the court, again, reiterated the retelling of facts involves a good deal of speculation and simplification.

[00:22:01] Speaker 03:
Counsel, what's your definition of material fact?

[00:22:04] Speaker 04:
It's a fact that actually goes to the heart of the case, Your Honor, that actually matters in terms of whether or not the use of force was justified.

[00:22:09] Speaker 04:
And of course, we get back to the case law in that regard.

[00:22:12] Speaker 03:
But isn't everything that

[00:22:14] Speaker 03:
happen leading up to the use of force?

[00:22:16] Speaker 03:
Wouldn't all of that be material?

[00:22:19] Speaker 04:
I think in order to justify use of deadly force, you have to look at threat of grievous bodily harm or injury.

[00:22:25] Speaker 04:
And that's the focus here.

[00:22:27] Speaker 04:
So whether there was commands or not honestly isn't material in this instance because we're looking at whether he posed a serious threat of bodily harm.

[00:22:34] Speaker 03:
I don't know that that's true because whether or not there were commands or not,

[00:22:39] Speaker 03:
help us decide whether or not the use of force was reasonable.

[00:22:41] Speaker 03:
If somebody is disobeying a command, that's one scenario.

[00:22:45] Speaker 03:
But if no command was given, that's a different scenario.

[00:22:48] Speaker 03:
So I don't know if I agree with you that that's immaterial.

[00:22:51] Speaker 04:
Well, at that point, this Court would be basically weighing the facts as to whose testimony is appropriate.

[00:22:56] Speaker 03:
No, we're weighing the facts.

[00:22:58] Speaker 03:
We don't weigh the facts.

[00:23:00] Speaker 03:
We consider the facts in the light most favorable to the plaintiff.

[00:23:04] Speaker 03:
That's the difficulty.

[00:23:06] Speaker 03:
you're asking us to weigh the facts.

[00:23:08] Speaker 03:
And that's not our role.

[00:23:10] Speaker 03:
Our role is to look at all the facts in the light most favorable to the plaintiff.

[00:23:15] Speaker 03:
And when you focus on the testimony of the officers, that takes away from viewing the facts in the light most favorable to the plaintiff.

[00:23:23] Speaker 04:
I guess my frustration or difficulty is that there must be a fact to weigh in the light most favorable to the plaintiff.

[00:23:29] Speaker 04:
And here, there aren't facts.

[00:23:30] Speaker 03:
Well, because the plaintiff isn't here.

[00:23:32] Speaker 03:
That's correct, Your Honor.

[00:23:33] Speaker 03:
And that's the difficulty that we've recognized

[00:23:36] Speaker 03:
that when the plaintiff has been killed, then we have to look at the facts.

[00:23:42] Speaker 03:
We look at a kind of side eye, because the plaintiff isn't here to give his version of events.

[00:23:50] Speaker 04:
And what I'll offer, Your Honor, is when that is the case, as it is here, the case is Cruz v. City Anaheim.

[00:23:56] Speaker 04:
It says this court looks to whether there's corroborating evidence in the record.

[00:23:59] Speaker 04:
And that's what I just put forth to this court.

[00:24:01] Speaker 04:
There is corroborating evidence in the record.

[00:24:05] Speaker 03:
As Judge Collins pointed out, there's also some evidence that may call into question the testimony of the officer.

[00:24:13] Speaker 04:
And my rebuttal to that would be based simply on the argument of counsel and not actual facts in the record.

[00:24:19] Speaker 04:
I'll move on to qualified immunity because I think the court can decide it on that.

[00:24:22] Speaker 04:
It's how the trial court decided it.

[00:24:24] Speaker 04:
DeRole, Hayes, and Neumacher are all entirely distinguishable.

[00:24:28] Speaker 04:
DeRole involved an issue where police officers were on scene for 40 minutes.

[00:24:33] Speaker 04:
They had 12 officers there.

[00:24:34] Speaker 04:
They had entirely barricaded the entire house.

[00:24:38] Speaker 04:
They were waiting for emergency services to come to try and negotiate with this person who's behaving erratically.

[00:24:43] Speaker 04:
They knew and had control of the entire situation.

[00:24:47] Speaker 04:
There was no prior chase.

[00:24:48] Speaker 04:
There was no immediate need for use of force in a 7 to 10 second span.

[00:24:53] Speaker 04:
It is entirely distinguishable.

[00:24:55] Speaker 04:
Does the record reflect why the officer was not wearing his body cam?

[00:25:01] Speaker 04:
Your Honor, I believe what the record shows is that the time that Deputy Farney engaged in the pursuit, he was charging his body camera at the seat of his passenger side of his car.

[00:25:11] Speaker 04:
And during the pursuit and in the immediacy of everything, I just don't think he had the opportunity to put it on himself.

[00:25:17] Speaker 04:
So to the extent there's any inference of intent or intentional not putting the body cam on, it's simply a circumstance of how these things played out.

[00:25:25] Speaker 04:
He was in a abandoned parking lot doing some reports that night as Deputy Godfrey drove by him with his sirens on, and they all engaged from there.

[00:25:33] Speaker 03:
Do you disagree with the premise that if commands had been given, the body cam audio would have picked them up?

[00:25:41] Speaker 03:
Do you disagree with that?

[00:25:42] Speaker 04:
And I do disagree with that, Your Honor.

[00:25:44] Speaker 04:
I believe just because the body cam didn't pick it up didn't mean it didn't happen.

[00:25:48] Speaker 04:
And here's why.

[00:25:49] Speaker 04:
The body camera is on the passenger floor of his car.

[00:25:53] Speaker 04:
The door is closed.

[00:25:55] Speaker 04:
He's on the driver's side of the car and he's moving away from it.

[00:25:59] Speaker 04:
They make a lot about Deputy Schrader being able to be heard on the camera, but she's on that side of the car as she's giving commands.

[00:26:04] Speaker 04:
And so there is an explanation I would submit to the court as to why it's difficult if not impossible to hear Deputy Farny's commands.

[00:26:13] Speaker 03:
Is that construed in the light most favorable to the plaintiff?

[00:26:17] Speaker 04:
Well, Your Honor, Deputy Schrader also testified that she heard the commands.

[00:26:20] Speaker 04:
So again, it's just argument of counsel that it didn't happen.

[00:26:23] Speaker 04:
Deputy Schrader said, I gave my own commands, which is undisputed in the record.

[00:26:27] Speaker 04:
And she said, I also heard Farny giving commands.

[00:26:30] Speaker 04:
That's the testimony in the record about commands.

[00:26:35] Speaker 04:
You know, I'll go back to the cases because I think that's the important piece here for purposes of qualified immunity.

[00:26:40] Speaker 04:
Hayes involved an officer.

[00:26:43] Speaker 04:
arriving to a domestic dispute issue, he finds somebody in the kitchen with a knife, he sees the knife, he immediately shoots.

[00:26:50] Speaker 04:
That's not this case either.

[00:26:51] Speaker 04:
There's no punch.

[00:26:52] Speaker 04:
There's no fight.

[00:26:53] Speaker 04:
There's no, it was an immediate shooting without any warning.

[00:26:58] Speaker 04:
And so for that reason, Hayes is an opposite as well.

[00:27:01] Speaker 04:
There was no prior chase.

[00:27:02] Speaker 04:
There was no knowledge base to let the officers know this person is a threat to the community and he needs to be controlled immediately.

[00:27:08] Speaker 04:
And any slight movement, I need to shoot this person.

[00:27:11] Speaker 02:
Do you agree that on this record, a reasonable jury could conclude that after the flailing and the multiple strikes on Farney, he was able to step back a few feet and disengage?

[00:27:26] Speaker 04:
Farney's testimony is that he was able to fight him off the second time he had grabbed his gun, create a little bit of space, and discharge his weapon, your honor.

[00:27:34] Speaker 04:
And the Billington case, I think, answers that question, because in Billington, there was an argument about that.

[00:27:39] Speaker 04:
And counsel had made the argument in that case that, well, because we were able to create space,

[00:27:44] Speaker 04:
than the shoot was improper.

[00:27:46] Speaker 04:
And the court in Billington flat out rejected that argument.

[00:27:48] Speaker 04:
And I would submit to the court, this court asked what case is on point, Billington is.

[00:27:52] Speaker 04:
Billington involved the police chase.

[00:27:54] Speaker 04:
It involved an escalation right on foot after the police chase where there was a fight.

[00:27:59] Speaker 04:
It involved the grab, and then it was involving a shoot.

[00:28:02] Speaker 04:
All same four factors are here.

[00:28:04] Speaker 04:
And again, the plaintiff had tried to make a lot of hay out of the fact that there was some distance, four to five feet I believe was the testimony in Billington, that made it so that there wasn't the need to shoot because there was that distance and the court completely and flat out rejected that argument.

[00:28:19] Speaker 04:
And so I would submit we're right on par with Billington here.

[00:28:26] Speaker 04:
You know, we didn't, counsel didn't get to the other issues in the case.

[00:28:31] Speaker 04:
There was certainly no time to deliberate

[00:28:32] Speaker 04:
with regard to the familial association claim was seven to ten seconds was the shooting.

[00:28:37] Speaker 04:
And in that regard the purpose to harm test applies.

[00:28:40] Speaker 04:
The briefing doesn't even make an argument that if purpose to harm applies that they somehow prevail and so I think they've conceded that if that standard applies then the familial association claim was properly dismissed.

[00:28:52] Speaker 04:
With regard to the handcuffing claim, Deputy Godfrey had handcuffed Rose right after he was shot and at that point in time he didn't know who shot who

[00:29:02] Speaker 04:
or what was going on, but he did know that there was an active dispute going on, a fight going on between the two.

[00:29:06] Speaker 02:
I'm looking at Billington, and it says there was a genuine dispute of fact over whether or not they were grappling over the gun, and says this factual dispute is immaterial, however, because either way, Detective Smith was locked in hand-to-hand combat and losing.

[00:29:27] Speaker 02:
Are those the facts that we have here?

[00:29:29] Speaker 04:
Your honor, there's clearly hand-to-hand comment going on in our officer testifying that he was struck so hard he was dazed.

[00:29:35] Speaker 04:
And then the next thing he knows, his gun's being pulled from him and he's fighting for his life.

[00:29:40] Speaker 04:
So I think you're absolutely right on point.

[00:29:41] Speaker 02:
I agree.

[00:29:42] Speaker 02:
If the jury believes his testimony, you're going to get a defense verdict.

[00:29:46] Speaker 02:
But I think we've already explained to you that there is enough in this record for a rational jury to disbelieve portions of his testimony.

[00:29:58] Speaker 02:
And so

[00:30:00] Speaker 02:
We can't take is true that he was grabbing the gun and the fingerprint evidence is inconclusive.

[00:30:06] Speaker 02:
So, you know, maybe you have, because the other officers also say that he was hit multiple times, but being hit multiple times with that's undisputed.

[00:30:18] Speaker 02:
Putting some space stepping back a few feet.

[00:30:20] Speaker 02:
That's undisputed.

[00:30:23] Speaker 02:
not enough to justify a lethal shot.

[00:30:27] Speaker 02:
You need something more, but the something more is Farny's testimony, which a jury doesn't have to believe.

[00:30:33] Speaker 02:
So I, you know, it's hard to see how this doesn't have to go to trial.

[00:30:38] Speaker 04:
Your Honor, if all that's in the record is Farny's testimony, that's the only fact in the record.

[00:30:43] Speaker 04:
But irrespective, plaintiff's counsel still hasn't

[00:30:46] Speaker 04:
demonstrated that there is a sufficiently similar case on point.

[00:30:49] Speaker 04:
And I know this court, you in particular, Your Honor, has made a big point in the Court of Selina case about how there needs to be specificity in the record on an equally specific case that demonstrates to this officer and every other officer in the universe of officers that what happened here would have been a constitutional violation and there isn't a case that is sufficiently factually similar.

[00:31:10] Speaker 04:
And that's what plaintiff's counsel is required to provide to this court and he's failed to do so.

[00:31:15] Speaker 03:
All right, thank you, Counselor.

[00:31:16] Speaker 03:
Any questions?

[00:31:18] Speaker 03:
Rebuttal?

[00:31:19] Speaker 03:
Let's give one minute.

[00:31:21] Speaker 00:
I'll just be as brief as possible.

[00:31:22] Speaker 00:
There's a couple things that he said that are completely inaccurate.

[00:31:24] Speaker 00:
The first thing is Farney's given wildly different version of events with respect to what he told Lake Havasu City police versus what he said in his deposition.

[00:31:33] Speaker 00:
When he gave his statement to police, he claimed that as soon as he approached Bradley Rose, Bradley Rose grabbed his gun and then struck him.

[00:31:41] Speaker 00:
When he gave his deposition testimony, he claimed the first thing that happened was Bradley Rose struck him

[00:31:45] Speaker 00:
And then there was a pull on his arm, not even a grab for the gun.

[00:31:49] Speaker 00:
In addition to that, what they're trying to paint as a violent attack with respect to the injuries, Farney testified himself that he was struck once.

[00:31:58] Speaker 00:
Deputy Schrader said it was a flailing of arms.

[00:32:01] Speaker 00:
In her statement given to Lake Havasu City Police, she said she saw a right swing and a left swing and then pew, pew, pew.

[00:32:07] Speaker 00:
She didn't say she saw a struggle for the gun.

[00:32:09] Speaker 00:
She didn't even say that she saw any strikes landing.

[00:32:12] Speaker 02:
With respect to the body... Would your officer be referring to this?

[00:32:14] Speaker 00:
Schrader.

[00:32:15] Speaker 00:
With respect to the body worn camera, Officer Godfrey, who comes on the scene.

[00:32:19] Speaker 02:
No, she, Trader testified that she saw strikes hit Farny.

[00:32:25] Speaker 00:
Right, but when she gave her statement to Lake Havasu police investigators immediately after it occurred, she didn't say that.

[00:32:31] Speaker 00:
She only said that after having a chance to prepare for the case and meet with her counsel.

[00:32:36] Speaker 00:
And then with respect to the fingerprint evidence, they're late in fingerprints.

[00:32:40] Speaker 00:
They don't know who those could be.

[00:32:41] Speaker 00:
Those could be Farny's.

[00:32:42] Speaker 00:
No one could get any prints off of what was on the gun.

[00:32:45] Speaker 00:
So that actually cuts in Rose's favor.

[00:32:49] Speaker 00:
Also, the officers there didn't see the struggle for the gun that they allegedly say occurred.

[00:32:54] Speaker 00:
Finally, the injuries.

[00:32:56] Speaker 00:
are inconsistent.

[00:32:57] Speaker 00:
They claim that there was bruising on both sides of his face.

[00:33:00] Speaker 00:
Farney never said that.

[00:33:02] Speaker 00:
When he was questioned by investigators, he said he was struck once and he pointed to a nick on the side of his face that would probably be consistent with like a fingernail scrape.

[00:33:11] Speaker 00:
And if you look at the statement he gave to Lake Havasu City investigators, that's the only injury he discusses or says he sustained.

[00:33:21] Speaker 00:
Oh, and finally, with Smith v. Agdeppa, there the court had no use for the trajectories because there was no way to link them up to the positioning to the officers at the time.

[00:33:31] Speaker 00:
Here, the physical evidence that exists are downward trajectories, and Farney's statement is they were all candid upwards.

[00:33:39] Speaker 00:
So it's actually physically impossible for it to have occurred like Farney said, and that's not argument.

[00:33:44] Speaker 00:
That's objective evidence.

[00:33:46] Speaker 03:
All right.

[00:33:46] Speaker 03:
Thank you, counsel.

[00:33:47] Speaker 03:
Any questions?

[00:33:48] Speaker 00:
Thank you to both counsel for your helpful arguments.

[00:33:51] Speaker 03:
The case just argued is submitted for decision by the court.