[00:00:00] Speaker 02:
We will now hear argument in the final case of the day, which is higher versus city and county of Honolulu.

[00:00:25] Speaker 02:
Mr. Caballero, you're back again, right?

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

[00:00:29] Speaker 02:
Okay, please proceed.

[00:00:35] Speaker 00:
Good morning again, Your Honors.

[00:00:37] Speaker 00:
Mateo Caballero, and may it please the Court.

[00:00:39] Speaker 00:
Mateo Caballero for Plaintiff Appellant Stephen A. Heyer, who again is the father of Stephen K. Heyer, and he's here with us in court.

[00:00:51] Speaker 00:
Stephen K. Heyer was a 32-year-old disabled veteran with a history of mental illness who was experiencing an acute mental health crisis and had locked himself in his bedroom up in the North Shore of Oahu to avoid being taken in custody for a medical examination by the Honolulu Police Department.

[00:01:12] Speaker 00:
The Honorable Police Department SWAT unit responded, cleared out the house entirely, and set up a perimeter around it.

[00:01:19] Speaker 00:
After that, just over two hours after the SWAT team was fully in place, Haier was shot with nine rounds of chemical munitions, attacked by a police dog, and eventually shot dead.

[00:01:31] Speaker 02:
Let me ask you this.

[00:01:32] Speaker 02:
These are really sad facts, and we've all read those.

[00:01:36] Speaker 02:
Let me ask you, when is it reasonable for a district judge to throw out an entire report?

[00:01:41] Speaker 02:
You had three experts, all those reports got thrown out.

[00:01:45] Speaker 02:
When can the district court do what it did properly?

[00:01:51] Speaker 00:
Well, I think it needs to, the district court has to actually review the reports, look at the conclusions.

[00:01:56] Speaker 00:
If some of them, and we will admit that, for example, some of perhaps the conclusions by Dr. Daniels could be stricken out.

[00:02:04] Speaker 00:
But to just wholesale strike the entire report, we would say is clear abuse here.

[00:02:09] Speaker 02:
So from your perspective, the judge

[00:02:12] Speaker 02:
Could have said, okay, report number one, I don't agree with you.

[00:02:16] Speaker 02:
This part's out, that part's out, that part's out, the rest stays in.

[00:02:19] Speaker 02:
Is that what was required here?

[00:02:21] Speaker 00:
Absolutely, and in cases that are brought to trial, that's what happens.

[00:02:26] Speaker 00:
Very often, there's a motion in limine, and then the court goes through the reports, and they strike portions of the report that are redacted, and what ends up going to the juries have heavily redacted version of the report.

[00:02:41] Speaker 00:
getting rid of the entire report, particularly in a situation like here where there is no claim that there are no experts in their field or that some of their opinions are.

[00:02:54] Speaker 04:
What are the opinions in Dr. Daniel's report that you think could be stricken when he talks about what all the Honolulu Police Department officers knew that

[00:03:02] Speaker 04:
That also seemed like something beyond his knowledge or?

[00:03:05] Speaker 00:
Yeah, absolutely.

[00:03:06] Speaker 00:
Things beyond his expertise, things beyond what he actually knew, but ultimately, at least for purposes of- What about whether the tactics the police used?

[00:03:16] Speaker 04:
Is that something that Dr. Daniels should have been opining about?

[00:03:19] Speaker 04:
Forensics?

[00:03:22] Speaker 00:
I would say that's a closer question.

[00:03:24] Speaker 00:
And of course, we do have a police expert here, Mr. Defoe.

[00:03:29] Speaker 00:
But for summary judgment purposes and for purposes of this appeal, we would submit that the important thing is that he was absolutely qualified to opine as to the disability that Hire had.

[00:03:42] Speaker 00:
His mental condition.

[00:03:44] Speaker 00:
Yeah, his mental condition.

[00:03:45] Speaker 00:
And he had reviewed his medical records.

[00:03:47] Speaker 00:
He had reviewed what happened that day.

[00:03:49] Speaker 00:
And he was entitled to make an opinion as to.

[00:03:50] Speaker 03:
What's important about the experts is their opinions.

[00:03:54] Speaker 00:
Excuse me?

[00:03:54] Speaker 03:
What's critical about experts, the ones we have here, are their ultimate opinions.

[00:04:00] Speaker 03:
Yes, absolutely.

[00:04:01] Speaker 03:
Based on these facts, Dr. So-and-so, what is your opinion to a reasonable certainty?

[00:04:08] Speaker 00:
Absolutely.

[00:04:09] Speaker 00:
That's what ultimately was important in the case, was their opinions.

[00:04:13] Speaker 00:
And here, the opinion that he was disabled is important to his ADA claims, or is relevant to the ADA claims.

[00:04:19] Speaker 03:
Let me ask you this.

[00:04:19] Speaker 03:
So even if we were to agree that the district court aired in wholesale striking all the three expert reports,

[00:04:31] Speaker 03:
You have to show some prejudice to get a reversal just based on that.

[00:04:35] Speaker 03:
Got it.

[00:04:35] Speaker 03:
So how would the reports have played out in this analysis?

[00:04:42] Speaker 00:
Well, we would submit first, again, that, for example, Dr. Daniel's report showing that he was disabled is relevant to the ADA claim and whether he was recently accommodated.

[00:04:52] Speaker 03:
How about at the time of the incident?

[00:04:54] Speaker 03:
How about at the time of the incident when he was shot?

[00:04:58] Speaker 00:
Well, then you have Dr. Sperry's report, and he opined based, you know, his pathologist, and he opined that based on the wounds to the body and reading the report,

[00:05:11] Speaker 00:
that you know he was shot on his right arm and on the chest one of the bullets went through his arm through the armpit into his body and that essentially and all officers declared this reported this that he had his arrow the arrow on the right hand side the bow on the left hand left hand arm and you know

[00:05:34] Speaker 00:
If he was getting ready to shoot, it's unclear how, if he was presented this side of the body, he was in any shooting position whatsoever.

[00:05:41] Speaker 00:
And that opinion, you know, he's qualified to give based on the review of the report.

[00:05:46] Speaker 04:
Absolutely.

[00:05:52] Speaker 05:
Yeah.

[00:05:54] Speaker 00:
Well, the dispute is that there was no immediate threat of bodily injury to the officers at that time.

[00:06:01] Speaker 00:
He was essentially defending himself against the dog that was attacking him.

[00:06:05] Speaker 00:
He was hitting the dog with the bow, striking it with the arrow, and in fact he suffered 12 wounds to his left arm, and there was no time, there was no

[00:06:18] Speaker 00:
threat to the officers.

[00:06:19] Speaker 03:
No, the officers say just the officer.

[00:06:22] Speaker 00:
Well, not all of them.

[00:06:23] Speaker 03:
Right, but who was it fired?

[00:06:28] Speaker 03:
Not Silva, but Torres fired the shots?

[00:06:31] Speaker 00:
Yes, but you have.

[00:06:34] Speaker 03:
I thought Torres, initially he didn't say anything, but he later said that, didn't he later say that he had the bow and arrow in position?

[00:06:42] Speaker 00:
Yes, you have two officers that said that after the fact.

[00:06:46] Speaker 00:
But Torres, as Your Honor just mentioned, initially when he was interviewed about the use of force, he doesn't say anything.

[00:06:54] Speaker 00:
And then you have two other officers in that room.

[00:06:58] Speaker 00:
One who was, you know, on the side looking for other threats.

[00:07:04] Speaker 00:
And then you have the dog handler.

[00:07:06] Speaker 00:
And neither one in the reports, they mentioned that Haier was pointing the bow and arrow at the officers.

[00:07:11] Speaker 00:
So under those circumstances, we would submit that you cannot have self-serving

[00:07:16] Speaker 00:
statements by the police that have to be taken as true.

[00:07:21] Speaker 00:
But instead, the question of whether a hire posed an imminent threat to the officers is one for the jury to decide.

[00:07:31] Speaker 00:
How should we think about the law that says that the officers don't have to wait until the gun is pointed at them before they can take action?

[00:07:39] Speaker 00:
Sure.

[00:07:39] Speaker 04:
Should we think about that?

[00:07:40] Speaker 04:
Were they required to wait until Mr. Hire actually pointed the bow and arrow

[00:07:46] Speaker 00:
So I believe there are four cases here that inform that question.

[00:07:53] Speaker 00:
We have a state of Lopez v. Galhouse.

[00:07:56] Speaker 00:
We have one that was cited by the district court, Cruz v. City of Anaheim.

[00:08:01] Speaker 00:
You have Colonel and Ridgecrest Police and Harris v. Roderick.

[00:08:05] Speaker 00:
And the way I read all of these opinions is that the fact that you're just armed is not sufficient.

[00:08:11] Speaker 00:
So if you're just armed, officers cannot just go ahead and shoot you.

[00:08:14] Speaker 00:
There has to be some sort of, you know, harrowing movement.

[00:08:18] Speaker 00:
There has to be some sort of indication of threat.

[00:08:20] Speaker 02:
The equivalent of a brandishment.

[00:08:21] Speaker 02:
Here we have a bow and arrow.

[00:08:24] Speaker 02:
So it's a little different, but could a reasonable officer, in this case Taurus, if he is reasonable, have looked at the attempt to, if you will, fire brandish showing, I've got this arrow, I've got this bow,

[00:08:40] Speaker 02:
could have interpreted in the same way as if he'd had a handgun.

[00:08:44] Speaker 02:
Hadn't pointed it yet, but he had it out.

[00:08:46] Speaker 02:
Is that the same or somewhat similar?

[00:08:49] Speaker 00:
Well, we dispute that he was getting ready to shoot the arrow at all.

[00:08:54] Speaker 00:
What we contend here is that he was just defending himself against the dog, and there is sufficient evidence in the record to support that.

[00:09:01] Speaker 00:
And if that's the case, if all he was doing was defending himself against his dog and he was not in fact threatening the officers, not making any harrowing movements or anything like that, then there is a claim for excessive use of force under the precedent that I just cited.

[00:09:17] Speaker 03:
Is there any suggestion in the record that they were also concerned about the dog's safety?

[00:09:22] Speaker 00:
Yes, there is, in fact.

[00:09:24] Speaker 00:
The mayor in charge of the entire operation mentioned in his report that he was shot to protect the lives of the officers and the dog.

[00:09:35] Speaker 00:
And not only that, but also one of the officers who was just outside, in fact, I believe, is the officer who was getting ready the munitions to continue firing chemical munitions into the room, he heard, stop killing my dog, and then shortly after, the shots.

[00:09:50] Speaker 00:
So we believe there is, in fact, evidence that all he was doing was defending himself against the dog.

[00:09:56] Speaker 03:
So let me ask you, there's a couple of other bases for your claims.

[00:10:02] Speaker 03:
One is firing up the canisters and releasing the dog.

[00:10:07] Speaker 00:
Absolutely.

[00:10:08] Speaker 03:
So why was releasing the dog excessive force?

[00:10:11] Speaker 00:
Well, what we contend is that between the shooting of the canisters, again, nine munitions into a small room, and the releasing of the dogs, all that had happened was nothing had materially changed at that point.

[00:10:26] Speaker 00:
There are some statements, and we submit that they are hearsay.

[00:10:30] Speaker 00:
from perimeter officers who said he had brandished the weapons or brandished the bow and arrow in the meantime.

[00:10:36] Speaker 00:
But at the time he was actually, the dog was released, he wasn't armed, or at least there is no statements on the record that he was armed at that point.

[00:10:45] Speaker 00:
And we don't know why he was coming out.

[00:10:48] Speaker 00:
Perhaps he was ready to give up or he needed air.

[00:10:51] Speaker 00:
I mean, there was a lot of gas inside his room.

[00:10:55] Speaker 00:
So what we submit is that at that point, there was no imminent threat to the officers.

[00:10:59] Speaker 00:
And therefore, there was no reasonable, it wasn't reasonable, objectively reasonable to release the dog to attack higher.

[00:11:06] Speaker 02:
What was the strongest case you would have to show that the use of the munitions and the dog was unconstitutional?

[00:11:13] Speaker 00:
Uh, meaning legally what cases?

[00:11:18] Speaker 00:
Sure.

[00:11:19] Speaker 00:
I believe the most analogous cases, uh, well,

[00:11:24] Speaker 00:
There are a couple of ways of viewing this, but one of the analogous cases is Brian B. MacPherson, which says that if you're going to use intermediate use of force, you need more than a minimal government interest at stake.

[00:11:36] Speaker 00:
And here, we would submit that looking at all the Graham Factors, most of which, or pretty much all of which, particularly in the use of the munitions, were in favor of not using intermediate force, that the officers should have known that that was excessive, particularly when it was nine chemical munitions shot into a small room.

[00:11:52] Speaker 00:
And the other case that is relevant there is both Headwaters Forest Defense v. County of Humboldt, both cases which essentially say the use of chemical munitions is more than just the use of minimal force.

[00:12:04] Speaker 00:
It's actually significant use of force.

[00:12:07] Speaker 00:
But the other cases that I would like to point out to the court is Dior v. Rutherford.

[00:12:13] Speaker 00:
which are now quoted, every police officer should know that it is objectively unreasonable to shoot even with lead shot wrapped in a cloth case, and an armed man who has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officers or other individuals.

[00:12:38] Speaker 02:
Do you want to save?

[00:12:39] Speaker 00:
Yes, I'll save three minutes again.

[00:12:42] Speaker 00:
Can I ask one last question?

[00:12:43] Speaker 00:
Yes, sure.

[00:12:44] Speaker ?:
What about recent mistake of fact?

[00:12:46] Speaker 04:
How should we consider that with regard to the shooting perhaps?

[00:12:52] Speaker 00:
Well, Your Honor, we would submit that there is no reasonable mistake of fact and that the officers in fact, you know, Torres came up after the fact with explanation after having shot Mr. Heyer with explanation that he was getting ready to shoot the bow and arrow.

[00:13:07] Speaker 00:
We would submit that that's just didn't happen and it should be a determination by the jury if in fact that happened or not.

[00:13:11] Speaker 00:
And the cases there that we would, again, point to the court to is Cruz and Galehouse where, again, the question was ultimately that those types of issues about whether there was a harrowing movement, whether the person was in fact getting ready to shoot, let's say a firearm, should go to the jury.

[00:13:29] Speaker 00:
I'll reserve the rest of my time.

[00:13:31] Speaker 02:
Very well, okay.

[00:13:33] Speaker 02:
Did you say A Wong, is that correct?

[00:13:35] Speaker 02:
Yes, Your Honor.

[00:13:37] Speaker ?:
Please proceed.

[00:13:37] Speaker 01:
Good morning, Your Honors.

[00:13:39] Speaker 01:
May it please the Court?

[00:13:40] Speaker 01:
I am William O'Wong, Deputy Corporation Counsel for the City and County of Honolulu, representing the City and County of Honolulu, as well as the individual officers, Malo Torres, Wayne Silva, and Paul LaBriga.

[00:13:53] Speaker 01:
I think before I get into my recital, I just wanted to clarify something that I think is

[00:14:05] Speaker 01:
is misunderstood about the initial statements given by the officers.

[00:14:10] Speaker 01:
There was no discrepancy or there was not any significant omission.

[00:14:14] Speaker 01:
Those initial questions, and you can see this in ER 483, when they're read by Officer Nobrega to Officer Torres, he's not interviewing them.

[00:14:26] Speaker 01:
There are four standard questions, and those are the only ones that are allowed to ask.

[00:14:30] Speaker 01:
He even says in the thing, he read the questions verbatim.

[00:14:33] Speaker 01:
None of those questions required to respond why he did what he did or those.

[00:14:39] Speaker 01:
The four questions are, where and in what direction did you fire the rounds?

[00:14:46] Speaker 01:
In what direction did the suspect fire the rounds?

[00:14:49] Speaker 01:
If you know of anyone injured, what is his or her location?

[00:14:52] Speaker 01:
Are there any suspects outstanding?

[00:14:55] Speaker 01:
And does any evidence need to be recovered or protected?

[00:14:58] Speaker 01:
Those are the five questions that are asked.

[00:15:00] Speaker 01:
So it's inaccurate to say he gave an initial statement where he failed to represent accurately what he did in the world.

[00:15:06] Speaker 02:
Are these questions that are internally generated by the police department or these were from the plaintiffs?

[00:15:15] Speaker 01:
No, these are standard questions that are asked immediately upon a critical incident.

[00:15:20] Speaker 02:
By the department itself?

[00:15:21] Speaker 01:
By the department itself.

[00:15:35] Speaker 01:
We are asking this court to affirm the trial court's granting of both the city and county of Honolulu and the individual officer defendants' respective motions for summary judgment.

[00:15:49] Speaker 02:
Let me ask you this, counsel, as we did with your opposing counsel.

[00:15:54] Speaker 02:
Judge Gilmour is a very respected judge.

[00:15:55] Speaker 02:
He has a lot of experience.

[00:15:58] Speaker 02:
In this case, he had three important

[00:16:04] Speaker 02:
expert witnesses, at least important from the perspective of the plaintiffs, she struck the entirety of each of the reports.

[00:16:13] Speaker 02:
That's a little unusual.

[00:16:15] Speaker 02:
Would you agree on behalf of your client that perhaps Judge Gilmour could have been a little less heavy on the pen and maybe had some portions of it qualify as appropriately admitted

[00:16:29] Speaker 01:
Do I agree it's possible to go through that analysis?

[00:16:32] Speaker 01:
Yes.

[00:16:32] Speaker 01:
Do I think it was necessary in this case?

[00:16:34] Speaker 01:
No, I do not.

[00:16:35] Speaker 02:
Okay.

[00:16:36] Speaker 02:
You don't think that admitting, well, my colleagues have referred to portions of the record that could have come in.

[00:16:43] Speaker 02:
In your view, if those portions, you know what I'm talking about, which portions, would you agree that the plaintiff would have been prejudiced by their not coming in?

[00:16:53] Speaker 01:
No, Your Honor.

[00:16:54] Speaker 01:
I think even had, and the court even addresses this in the order, even if the court were to have allowed the opinions of the doctors in, that wouldn't have changed the outcome or whatever.

[00:17:06] Speaker 03:
Do you think it would have helped to create a tribal issue of fact?

[00:17:08] Speaker 01:
I do not, Your Honor.

[00:17:09] Speaker 03:
Why not?

[00:17:10] Speaker 01:
Because as the court said, whether, I'm sorry it was.

[00:17:13] Speaker 01:
No.

[00:17:14] Speaker 01:
As the court said, the analysis wouldn't have changed.

[00:17:17] Speaker 01:
The fact that, well first of all, Dr. Sperry

[00:17:22] Speaker 01:
his, it's purely subjective or it's purely speculative and he refers to this idea of the stand.

[00:17:31] Speaker 04:
Isn't that pretty standard for these cases for an expert to be opining on what was the position of the decedent at the time of the shooting?

[00:17:40] Speaker 04:
It just seems like this kind of report is fairly standard.

[00:17:45] Speaker 01:
You know, and it's standard when there's evidence, there's some kind of factual basis to put it on.

[00:17:50] Speaker 01:
He's not an archery expert.

[00:17:52] Speaker 01:
All he's saying is that, you know, and all the evidence, the concrete, unassailable evidence that he's got is the autopsy report.

[00:18:00] Speaker 01:
So yes, it is accurate to say that one of the bullets went in through the arm, came out, and went into the chest.

[00:18:05] Speaker 03:
But from that... Why can't, you know, from looking at the autopsy report, why can't he opine in my...

[00:18:11] Speaker 03:
opinion based on review of the autopsy reports and the statements of the officers and what not.

[00:18:16] Speaker 03:
In my opinion, he was in such and such a position at the time he was shot.

[00:18:23] Speaker 03:
You still have to have a factual basis and the only reason... His opinion is based upon the autopsy report.

[00:18:30] Speaker 03:
What's wrong with that?

[00:18:31] Speaker 01:
Because the autopsy report makes no reference to the position he was in.

[00:18:35] Speaker 01:
It just references to the...

[00:18:38] Speaker 04:
the bullet, that gives you some sense of the direction that the bullet is traveling.

[00:18:42] Speaker 04:
It gives you... I'm sorry.

[00:18:44] Speaker 04:
Or what position Mr. Heyer was in.

[00:18:47] Speaker 01:
At best, it gives you something to speculate on as what could have been a position.

[00:18:52] Speaker 01:
There's nothing to a reasonable degree of scientific certainty.

[00:18:55] Speaker 01:
There's nothing more likely than not.

[00:18:58] Speaker 03:
Let me ask you this.

[00:18:59] Speaker 03:
Was there any argument put forward to the district court that this type of expert opinion is based on junk science?

[00:19:09] Speaker 01:
No, I believe what our argument was and what the court adopted was that it was speculative and that it was not based or had no discernible methodology.

[00:19:20] Speaker 04:
But doesn't the specular go to weight, not admissibility?

[00:19:22] Speaker 04:
That sounds like that's a great cross-examination question.

[00:19:26] Speaker 04:
Maybe it's a great closing argument.

[00:19:28] Speaker 04:
But just the actual opinion of the path of the bullet and what inferences you can draw from Mr. Heyer's position.

[00:19:37] Speaker 01:
Well, that's just, I'm sorry, that's just it.

[00:19:42] Speaker 01:
It's specular to the point of where it's of no value.

[00:19:46] Speaker 01:
All that can be objectively stated is the path of the bullet.

[00:19:50] Speaker 01:
To say that he must have been in some kind of formal shooting stance when there's no evidence in the record to suggest that he was in a formal shooting stance is purely speculative and it offers no, it's not assistance to the trier of fact to guess at what.

[00:20:07] Speaker 04:
But why isn't there a factual material dispute as to Mr. Heyer's position at the time of the shooting?

[00:20:10] Speaker 04:
This is what it all sounds like, right?

[00:20:12] Speaker 04:
That there's a factual dispute, like the officer saying he was in a position to actually shoot the bow, an arrow.

[00:20:18] Speaker 04:
Why isn't there a factual dispute?

[00:20:25] Speaker 01:
Well, two things I will say is there was no factual dispute because the only articulable non-speculative evidence is that the bow that he'd reached back slightly and was preparing to knock the bow.

[00:20:39] Speaker 01:
Second of all, even if that were, that doesn't create a genuine issue of material fact because as the courts pointed out, they don't have to wait for him to get into a firm stance or they don't have to wait for him to actually knock the arrow.

[00:20:51] Speaker 01:
The fact that he's got a razor tipped arrow and a compound bow

[00:20:54] Speaker 01:
and is even making any motion to load it would have been sufficient in and of itself.

[00:20:59] Speaker 02:
Counsel, are you aware of any case that basically says that doing what the decedent was alleged to have done in this case constitutes the equivalent of brandishment as if we had a firearm situation?

[00:21:13] Speaker 02:
What he did with the arrow and the bow, is that the equivalent of brandishing a firearm but not pointing it?

[00:21:22] Speaker 02:
What case would you cite?

[00:21:25] Speaker 01:
I don't think it's the equivalent.

[00:21:26] Speaker 01:
I think it goes a step further in that it's an actual physical move to load the arrow whether and unequivocally the two officers that saw that part said without equivocating that they saw him pulling back the arrow to load to getting ready to fire.

[00:21:44] Speaker 02:
Like cocking and put a bullet into the chamber ready to fire?

[00:21:48] Speaker 01:
I think it would be equivalent to cocking and loading the chamber and then pointing the gun at somebody.

[00:21:54] Speaker 03:
Trying to make sense of what happened, all this happened in a very brief period of time, correct?

[00:22:00] Speaker 01:
Yes, Your Honor, seconds.

[00:22:01] Speaker 03:
Very seconds, right?

[00:22:03] Speaker 03:
And when the dog went in the room, he tried to defend himself against the dog's attack, correct?

[00:22:10] Speaker 03:
Yes, he was stabbing the dog with... He was hitting the dog with the bow.

[00:22:16] Speaker 01:
And the arrow.

[00:22:17] Speaker 03:
And stabbing him with the arrow?

[00:22:19] Speaker 01:
Yes, Your Honor.

[00:22:20] Speaker 01:
Correct?

[00:22:20] Speaker 01:
Yes.

[00:22:21] Speaker 03:
And Officer Torres, who comes in, who was supposed to be the high, what was it called, the high?

[00:22:28] Speaker 01:
High cover.

[00:22:28] Speaker 03:
High cover?

[00:22:29] Speaker 03:
Yes, Your Honor.

[00:22:30] Speaker 03:
He was supposed to be backing up, as I understand it, right?

[00:22:33] Speaker 01:
Well, so the first one in would have been Officer Nomura with the ballistic shield.

[00:22:37] Speaker 03:
Yes.

[00:22:38] Speaker 01:
And then kind of off into the right, but still

[00:22:42] Speaker 01:
trying to be guarded by the ballistic shield would have been the canine handler, Officer Silva, and then he would have been looking over the high cover position over the shield.

[00:22:52] Speaker 01:
Yes.

[00:22:52] Speaker 03:
Okay, so all this is going on, higher is trying to defend himself against the dog, and somehow or other he's able to

[00:23:05] Speaker 03:
fixed the bow, what he was using to stab the dog, get the arrow and get the bow in the right position and load it?

[00:23:16] Speaker 03:
Is that?

[00:23:17] Speaker 01:
Yes, so what Officer Torres and Officer Nomura said is that he had the bow in his left hand, he had the arrow in his right hand, he would hit, stab, and then it was a simple motion of bringing it back and then knocking the arrow and starting to pull it back.

[00:23:30] Speaker 03:
Now, two officers didn't see anything, right?

[00:23:33] Speaker 01:
Well, I don't know if it's accurate to say they didn't see anything.

[00:23:35] Speaker 01:
They weren't looking at that exact time.

[00:23:36] Speaker 01:
There was a fourth officer, Officer Otto, who came into the room, and he was looking to the right of where everything was going on, because there was a pantry and a bathroom area, and it had unknown if there was anything else in there.

[00:23:49] Speaker 01:
So his focus was on there, but occasionally looking back.

[00:23:52] Speaker 01:
And Officer Silva was more concentrated on... Let me ask you this.

[00:23:55] Speaker 03:
Why isn't this case a lot like Lopez at council referred to?

[00:24:00] Speaker 03:
You remember Lopez, the case with the kid with the toy rifle.

[00:24:06] Speaker 01:
Your Honor, there's a multitude that makes this different.

[00:24:10] Speaker 02:
The Gale House versus Lopez.

[00:24:12] Speaker 01:
I wrote that, so I know about that one.

[00:24:17] Speaker 02:
Yeah, in this case... I didn't want to... I'm only concerned about... Supreme Court denied certain.

[00:24:24] Speaker 01:
The threatening behavior was early and often.

[00:24:27] Speaker 01:
It started from the get-go of this case.

[00:24:30] Speaker 01:
So the police are called because he's threatening his neighbors.

[00:24:33] Speaker 01:
He brandishes a knife, taser ineffective.

[00:24:37] Speaker 03:
They think he's having some mental problems, right?

[00:24:41] Speaker 03:
They think the mental problem is... They do call the psychologist at the department and they say,

[00:24:49] Speaker 03:
This is what happened initially.

[00:24:50] Speaker 03:
We came back.

[00:24:51] Speaker 03:
Here's what he's doing.

[00:24:52] Speaker 03:
And the psychiatrist, the psychologist says, okay, I'll sign an order that you can take him into custody and put him in.

[00:25:01] Speaker 01:
Yes, Your Honor.

[00:25:01] Speaker 01:
It's not simply an order that you can take him into custody.

[00:25:04] Speaker 01:
There is a finding that goes along with that order.

[00:25:06] Speaker 01:
And the finding was that he is an imminent threat to himself and others.

[00:25:10] Speaker 03:
But it was because of his mental.

[00:25:12] Speaker 03:
It was because he was acting out.

[00:25:13] Speaker 03:
He was saying things like there are dead bodies in the walls.

[00:25:17] Speaker 01:
No, Your Honor, the imminent threat was, or the threatening behavior was, one, he had tried to burglarize the house.

[00:25:26] Speaker 01:
He had brandished the weapon.

[00:25:27] Speaker 01:
He had pointed the bow at officers, so it's not simple.

[00:25:30] Speaker 03:
Neighbors at all complained that he was acting out.

[00:25:33] Speaker 01:
Yes, Your Honor, he was also making strange comments and out, but what is... Let me ask you.

[00:25:40] Speaker 03:
A psychologist, I'd be surprised if a psychologist could just say, well, you take this guy into custody because he's a threat to himself.

[00:25:48] Speaker 03:
There has to be a basis for that, and the basis for it was that he was acting out.

[00:25:53] Speaker 01:
Well, I guess it depends on what you mean by acting out, Your Honor.

[00:25:56] Speaker 03:
He was demonstrating mental impairment, signs of having a mental stress situation.

[00:26:03] Speaker 01:
He was displaying signs of a mental

[00:26:08] Speaker 01:
I don't want to call it a mental illness, but a mental health issue, yes, but also he was displaying signs of dangerous behavior, dangerous to both himself and others.

[00:26:17] Speaker 01:
So those are not mutually exclusive.

[00:26:19] Speaker 01:
Yes, he was acting out, but what caused them to act the way they did and treat him the way they did is because he was also quite dangerous.

[00:26:27] Speaker 01:
It's not a crime to be unusual or delusional.

[00:26:31] Speaker 01:
An officer can't take you into custody because

[00:26:34] Speaker 01:
you're acting weird, they take you into custody.

[00:26:40] Speaker 01:
The authority that gives them to take you into custody for an involuntary evaluation is that he's an imminent danger to himself and others.

[00:26:51] Speaker 04:
So again, these are not mutually exclusive.

[00:26:57] Speaker 04:
But that doesn't give a justification to conclude he's an immediate threat, right?

[00:26:59] Speaker 04:
Just that he needs to be taken into

[00:27:01] Speaker 01:
I would disagree, Your Honor.

[00:27:03] Speaker 01:
I believe amongst the other circumstances that were present that night, mental health providers' independent determination that he is imminently dangerous to himself and others does constitute a- So you're saying anyone who is subject to being taken into custody for mental health evaluation, then is fair game for lethal force?

[00:27:23] Speaker 01:
No.

[00:27:23] Speaker 04:
Is there automatically an imminent threat?

[00:27:25] Speaker 04:
I'm not saying it's-

[00:27:28] Speaker 01:
No, I'm not saying it's, and you can see the form, it's in the record, and it indicates there's a bunch of boxes that they have to fill out, and one of them is imminently dangerous to self and others.

[00:27:42] Speaker 01:
That's not the only one.

[00:27:43] Speaker 01:
There's also this combative, which also happened to be checked in this case, and there's multiple criteria, but that in and of itself, does that mean they can use force?

[00:27:52] Speaker 01:
No, but it does mean that he is now

[00:27:56] Speaker 01:
fairly treated independently and can be treated as he's an imminent danger to himself and others.

[00:28:04] Speaker 01:
Without more is that no, but in this case there was more.

[00:28:08] Speaker 01:
He did attack his neighbors.

[00:28:10] Speaker 01:
He did have weapons.

[00:28:11] Speaker 01:
He did threaten to hurt himself.

[00:28:12] Speaker 01:
He did threaten to hurt other officers in the area.

[00:28:16] Speaker 02:
So of it- From the police forces perspective, the deadly force was warranted because the officer truly fell

[00:28:23] Speaker 02:
threatened that his life and the life of others there were in danger, is that right?

[00:28:29] Speaker 01:
That's correct, Your Honor.

[00:28:30] Speaker 01:
Deadly force is not used into... But it's disputed, right?

[00:28:32] Speaker 04:
Because two of the officers don't see the cocking of the bow and arrow.

[00:28:36] Speaker 04:
And the shooting officer, when he was initially interviewed, didn't say that Mr. Heyer was cocking the bow and arrow.

[00:28:42] Speaker 04:
So, I mean, it seems like there's at least a material factual dispute as to whether he was cocking the bow and arrow or not, because two officers don't

[00:28:52] Speaker 01:
I would disagree if I could, Your Honor.

[00:28:54] Speaker 01:
I see my time is up, but just to respond to that.

[00:28:57] Speaker 01:
I would disagree because, one, the two officers that didn't see it, that's an omission, not an inconsistency.

[00:29:07] Speaker 01:
They didn't see it because they weren't looking, because their focus was elsewhere.

[00:29:11] Speaker 01:
To say that they didn't see it creates a material fact of whether or not it happened I don't think is accurate.

[00:29:20] Speaker 01:
Sorry, I lost my train of thought.

[00:29:22] Speaker 02:
Basically, because they didn't dispute it, the negative president isn't that there is a clash.

[00:29:27] Speaker 02:
It's just they didn't talk about it.

[00:29:29] Speaker 02:
So from your perspective, there's only these two who said it happened.

[00:29:32] Speaker 01:
Right.

[00:29:32] Speaker 01:
Those two are the only ones, and they were just honest, right?

[00:29:35] Speaker 01:
Two said they were looking at other things.

[00:29:36] Speaker 01:
Two said they saw it.

[00:29:37] Speaker 01:
And again, I think it mischaracterizes that initial statement.

[00:29:42] Speaker 01:
The initial statement that it was inconsistent or somehow that he wasn't forthcoming because, as indicated in the report, these are standardized questions that they're not allowed to veer from.

[00:29:53] Speaker 01:
These are standardized questions that Officer Nubriga said that he read

[00:29:58] Speaker 01:
verbatim and he even wrote the questions out in the report.

[00:30:01] Speaker 01:
So it's not as if the officer even had a chance at that early stage to say he was pointing at me.

[00:30:06] Speaker 01:
They just want to know the four questions that they got and what are their answer to those questions.

[00:30:10] Speaker 01:
And for union and SHOPO and collective bargaining agreements, they don't go any further than that.

[00:30:15] Speaker 01:
They can't go any further than that.

[00:30:17] Speaker 03:
I just wanted to ask you, do you have a response to the release of the dogs and the use of the canisters to your friend's argument that that was excessive under the service net?

[00:30:34] Speaker 01:
Yeah, I obviously strenuously disagree with that characterization.

[00:30:39] Speaker 01:
I think what is kind of perplexing... Nine canisters?

[00:30:44] Speaker 03:
One wasn't good enough in that small room.

[00:30:48] Speaker 01:
I don't think it was, Your Honor, and there's even testimony directly from Nobrega that additional canisters do not provide any additional harm.

[00:30:57] Speaker 01:
It may be more uncomfortable.

[00:30:59] Speaker 01:
And on top of that, it clearly wasn't excessive when it didn't even work.

[00:31:02] Speaker 01:
Nine canisters in that small room, and all he did to respond, and I would again disagree with my friend, is he came out and said, you guys can't get me, or something to those effect, and pointed the compound bow at the officers again.

[00:31:13] Speaker 01:
So nine was clearly not excessive.

[00:31:16] Speaker 01:
It was a steady progression, Your Honor, so they had tried to taser.

[00:31:21] Speaker 01:
That didn't work.

[00:31:22] Speaker 01:
They had tried hours of communication and negotiation.

[00:31:25] Speaker 01:
That didn't work.

[00:31:25] Speaker 03:
Well, they didn't bring in the negotiating team.

[00:31:28] Speaker 01:
No, but they did try to negotiate with them and saying, please come out.

[00:31:32] Speaker 01:
Please come out.

[00:31:33] Speaker 01:
We're just trying to resolve this situation peacefully.

[00:31:36] Speaker 01:
We don't want anybody to get hurt.

[00:31:38] Speaker 01:
So there is, and they are trained, they're not the crisis negotiation team, but the SSD team, which has been referred to as a SWAT.

[00:31:45] Speaker 03:
They were dressed up in their sweat gear, right?

[00:31:47] Speaker 01:
Yes, but they are trained on how to do these kind of negotiations, and they did attempt to do them for hours on end.

[00:31:54] Speaker 01:
The initial taser was ineffective, the munitions were ineffective, he was still becoming worse, and I think one fact that's overlooked is that this was a multi-hour

[00:32:05] Speaker 01:
event here and time and resources are limited in that Officer Neuberger talks about that there are ten officers for that whole district.

[00:32:15] Speaker 01:
Five of them had to be absorbed into this incident.

[00:32:18] Speaker 01:
So now from a whole district of the island there's five officers.

[00:32:21] Speaker 01:
So it's not simply as if it's just one little narrow, there's a danger to the community.

[00:32:26] Speaker 01:
Plus he had a

[00:32:27] Speaker 01:
a compound boat that was more than capable of going past the perimeter of the officers, it would have taken just a simple trigger pull to fire it into the neighborhood.

[00:32:35] Speaker 01:
So there's, I guess that answers your question then.

[00:32:37] Speaker 01:
I think my time is well since it's over.

[00:32:39] Speaker 02:
Very well.

[00:32:40] Speaker 02:
Thank you very much.

[00:32:40] Speaker 02:
Mr. Caballero, we're ready for the piece, the rusty stones.

[00:32:46] Speaker 00:
Thank you, Your Honor.

[00:32:48] Speaker 00:
So just a few quick points.

[00:32:50] Speaker 00:
The first one is that I think

[00:32:53] Speaker 00:
My friend is conflating imminent threat for purposes of the Fourteenth Amendment and the Fourth Amendment.

[00:32:58] Speaker 00:
When he was initially determined to be potentially a threat to himself and others, it's just for the purposes of taking him into protective custody, not for the purposes of using force.

[00:33:07] Speaker 00:
The second point that I would like to make is that Paul Nobriga, who was in charge of the tactical team, he testified in his deposition that Haier hadn't brandished any weapons in the three hours he had been there before the chemical munitions were deployed.

[00:33:24] Speaker 00:
He hadn't threatened anyone.

[00:33:26] Speaker 00:
He didn't point the bow and arrow at anyone.

[00:33:29] Speaker 00:
And that he did not pose a risk to the community or flight risk.

[00:33:33] Speaker 00:
And that's in ER 295-96 and to ER 254.

[00:33:39] Speaker 00:
And again, we submit that by the time the dog was released, nothing had materially changed from what he said there.

[00:33:46] Speaker 00:
As to the shooting, Torres, the shooter,

[00:33:49] Speaker 00:
He didn't mention anything in that initial interview, and the interview is called Officer Involved Shooting Public Safety Statement.

[00:33:57] Speaker 00:
And so while I understand that there are specific questions they answer, we would submit that at that point he could have easily just said, no, he wasn't shooting any rounds at us, but he was getting ready to shoot his bow and arrow at us.

[00:34:08] Speaker 00:
He didn't say that.

[00:34:10] Speaker 02:
So what should they have done?

[00:34:13] Speaker 02:
You're an officer, you're there.

[00:34:15] Speaker 02:
You moved along to the point that all these hours had passed.

[00:34:19] Speaker 02:
You weren't getting anywhere.

[00:34:21] Speaker 02:
from the perspective of the police and earlier reports, he's a threat to the community, he's a threat to himself.

[00:34:26] Speaker 02:
So what do you do?

[00:34:27] Speaker 00:
Sure.

[00:34:28] Speaker 00:
So first, the SWAT team had been in place only two hours by the time they shot the nine munitions.

[00:34:35] Speaker 00:
Second, they had options at their disposal.

[00:34:37] Speaker 00:
They had the crisis negotiation team.

[00:34:39] Speaker 00:
They could have called them.

[00:34:40] Speaker 00:
They have a psychologist in there, and our expert default talks about that.

[00:34:45] Speaker 00:
They could have tried a throw phone.

[00:34:47] Speaker 00:
They could have put a phone next to his

[00:34:50] Speaker 00:
you know, the sliding door and allow this person to pick up the phone and try to talk to him.

[00:34:56] Speaker 00:
In fact, there are multiple points in the record where Hire was trying to communicate, was screaming, was saying things to the officers, and they couldn't hear him.

[00:35:04] Speaker 00:
In fact, Nobriga says that, you know, I was shouting and he was shouting back, I couldn't hear what he was saying.

[00:35:09] Speaker 00:
The other thing he could have done is hire at one point, and this happened earlier in that incident, after his taste, he calls 911.

[00:35:17] Speaker 00:
He says, hey, I was just taste.

[00:35:19] Speaker 00:
Please let, you know, these officers should leave me alone.

[00:35:22] Speaker 00:
So they could have potentially gotten his phone number through that, through 911, or even through his housemates.

[00:35:28] Speaker 00:
The housemates were the ones, the complaining party's here.

[00:35:31] Speaker 00:
They could have asked, you know, what is his phone number?

[00:35:33] Speaker 00:
Where is his cell phone?

[00:35:33] Speaker 00:
Let's try calling him.

[00:35:34] Speaker 02:
Time is up.

[00:35:36] Speaker 02:
Let me ask whether either of my colleagues has additional questions.

[00:35:38] Speaker 02:
No, thank you.

[00:35:40] Speaker 00:
All right.

[00:35:40] Speaker 00:
No, thank you so much.

[00:35:41] Speaker 00:
I appreciate it.

[00:35:41] Speaker 02:
I appreciate it very much.

[00:35:42] Speaker 02:
The case just argued is submitted.

[00:35:46] Speaker 02:
We're here at the law school because in addition to the pleasure of seeing the learning council, we want to give law students an opportunity to visit with our law clerks and maybe even the judges.

[00:35:57] Speaker 02:
How many law students are out in the audience?

[00:35:59] Speaker 02:
I don't really see many.

[00:36:01] Speaker 02:
We got a few.

[00:36:01] Speaker 02:
Okay.

[00:36:02] Speaker 02:
But you've got some brilliant law clerks here.

[00:36:06] Speaker 02:
You will be treated, there's more talent there than when Jefferson dined alone.

[00:36:10] Speaker 02:
It's amazing.

[00:36:11] Speaker 02:
In any event, they will visit with you and we will be back after we conclude our conference.

[00:36:18] Speaker 02:
The court stands adjourned for the day.