[00:00:00] Speaker 02:
Jesus Jesse Valdez here on behalf of the appellants also have the other attorneys here for me for The estate of William Langford, and I like to reserve three minutes for rebuttal We are here today to request the reversal of the district court's granting of summary judgment to the appellees on

[00:00:23] Speaker 02:
when there were material facts in dispute.

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We believe the court disregarded the declarations of Naomi Powers, which were in conflict, and the court also disregarded some of the underlying facts of the other statements.

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What are the, in your mind, the major essential questions of material fact

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that were inappropriately, in your view, resolved in the way that the court did?

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Well, first, that Mr. William Langford, I'll call him Billy, was armed.

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Our argument is he was unarmed.

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He had no weapon.

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The physical evidence says that.

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Ms.

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Naomi Powers in her declaration says that.

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Another witness, also Ms.

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Black, says he was unarmed.

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The other issue that we have is warnings.

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uh... officer or deputy edwards claims he made orders none of the witnesses mister taylor this is mister black mrs black mrs power say we never heard any orders there was no orders given and i think they didn't say there were no orders they said they didn't hear they didn't hear no orders yes that's correct honor the other ones is uh... the testimony about the vehicle the alleged carjacking

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What I say was speculation versus reality.

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There's a speculation that he was going to carjack.

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There was no facts to say he was in the vehicle.

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There is a photo that shows the body of Mr. Langford's, whether he was in the vehicle or not in the vehicle.

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Our position was he was not in the vehicle.

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He did not have a position in the vehicle.

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He never moved the vehicle.

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The vehicle wasn't in gear.

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He never fled.

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None of those.

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Right.

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But the issue is he was not didn't have the car in drive and about to head off, but he

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He was inside the vehicle and there was a lot of testimony from saying he darted in, he jumped in the vehicle.

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That seems to be the key issue here as to whether he was inside the vehicle at the time he was shot.

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Well, that's what the conflicting testimony is, whether he fell in when he was shot or whether he was in the vehicle.

[00:02:41] Speaker 03:
Our position is no he fell into the vehicle miss power says he fell into the vehicle when he was shot so that she said that in her declaration but but what she said in her statement to the police and what she said during the 911 call and even in her deposition seems to be the opposite I Don't think that heard

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Her declaration says that, Your Honor.

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I think the declaration says that he fell in.

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Well, that's true.

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The declaration does say that, but the question I have is does that create a genuine dispute of material fact in light of other things that she said and other things that others in this case have said?

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Well, that's a good question, Your Honor, because then you're going into credibility.

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Do I believe Naomi Powers or not?

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That's what the judge was doing, having the credibility and weighing the credibility.

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A judge is not set for that.

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That's for the jury.

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If there's a credibility issue, the Ninth Circuit and all courts have said that goes to the jury.

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I believe... But we don't, we don't.

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We also have case law talking about you can't put in a declaration later that contradicts what you said earlier, otherwise anybody could just get past the summary judgment motion.

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I think what the courts have said is that the declaration was self-serving if there's facts versus conclusions.

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And here there was facts that Naomi Powers has said, not conclusions.

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And at that point they're going to say that's a credibility issue.

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Do we believe this person or not?

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Because it's the same inferences that the court is doing.

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We'll believe the inferences of Deputy Edwards at this point.

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That's not the standard of summary judgment.

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The standard is you got to look at the inferences.

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All justifiable inferences for the non-moving party.

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And that's what we're asking here.

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In terms of determining the overall reasonableness of the deputy's response to this situation, does it matter whether Billy was in the patrol car or not?

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yes because then there's a the case is reasonable range the range of reasonableness what are the other options because at the very beginning the reason for the call is there was he was emotionally disturbed so was this a was out pounding on cars and traffic right i believe he did run up he did go up to one vehicle

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For the window.

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I believe there was three vehicles.

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So I don't know if there was running up in traffic I know there was a strike and excuse me.

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I believe there's two vehicles one was the vehicle he was in with Naomi powers So is there dispute as to whether Billy headed towards the deputy or not and

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No, there is no dispute that he moved towards the deputy, but then he did pivot.

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And that's the question, is he then changed direction from the deputy.

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And one of the questions is, what's the severity of the crime that he was at at this point?

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Because the reason for the call is Naomi Powers called and said, my friend is having a mental breakdown.

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I need help.

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That's what the reason for the call.

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So severity of the crime at the very beginning is this was the reason for the call.

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It wasn't for anything else.

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Well, but I mean, he comes on the scene and he he's disturbed and he's doing things to other other motorists and other cars also.

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I don't believe Deputy Edwards saw any of that, Your Honor.

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When he comes to the scene, he sees Billy outside of the vehicle, I believe.

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So the officer or Deputy Edwards doesn't know on this.

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Also from on the regional reasonable range that the officers look at.

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So what does the training training comes into it into it?

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What is the policy state?

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The policy dictates if somebody is mostly disturbed, you might want to monitor the situation.

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You might want to treat them differently.

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Deputy Edwards knew at the onset this individual was mentally disturbed.

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So policy dictated, take less reasonable means.

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So at one point, if it's OK if I call him that, Billy is running toward the deputy.

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I don't know if he ever

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moved was running I know he was you just told me that he was and then he pivoted well what I want to say was he was approaching and I don't know if it's a steady gait and then he pivots so I don't know about whether he was running I know some of the testimony has said he was running I know he was moving towards deputy Edwards that's what I do know and I don't know if that's a steady gait or running or any of that your honor that's what the testimony has to come in and say well let everybody testify

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What was the physical distance between the deputy and Billy at that time?

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At that time, I believe some had said more than 50 feet.

[00:07:23] Speaker 01:
And at that point, also- One of your arguments is that the deputy could have used a taser?

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That or the deputy could have stayed in his vehicle where he was safe.

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He didn't have to come out of the vehicle out of safety.

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He could have stayed in his vehicle.

[00:07:36] Speaker 01:
So- Are tasers effective beyond about 30 feet?

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I don't know what... What did your expert say about that?

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The expert said he could have used lesser force.

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He could have waited.

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He could have waited for backup, could have monitored the situation, and said taser.

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As to the specific taser that Deputy Edwards had on that day, I can't tell you if it was more than 30 feet.

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But I believe the expert said- Your own expert didn't- I think, no, the expert did say he could have used a lesser means, including the taser.

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Did he comment on the specific type of taser that the deputy had?

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him at that time and what it what its range was Reminder I don't recall that right now your honor what the specific range was thank you at that point the other issue is whether The approach that deputy Edwards took to your honor how quickly whether he was assessing the situation rather than leaving the car door open and

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And that's the other thing we said is he left the car to open.

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There's also policies that Pierce County has.

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Secure your vehicle.

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Don't leave the vehicle open.

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So here is, he's leaving a vehicle unsecured.

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And then the argument is like, well, he could have had access to weapons.

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Well, Deputy Edwards was the one who left the door open and unsecured, so granting the access to the weapons.

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So we are hard pressed to say, how can you do both?

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How can you commence it and leave something

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like a vehicle open, unsecured, and then say, well, yeah, I know I left it open.

[00:09:06] Speaker 02:
And you could have access to it, but that's not our fault.

[00:09:10] Speaker 01:
When your position is that the deputy shot and the shot pushed Billy into the vehicle?

[00:09:19] Speaker 02:
My position is yes.

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The deputy shot and he kept firing.

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He fired over 10 times.

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And those shots propelled Billy into the patrol car?

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I would say yes, it could have pushed him into the vehicle.

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Which side of the car?

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It was the driver's side, Your Honor.

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This was all the driver's side.

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Because I believe Deputy Edwards also testified, Billy closed the door to the vehicle.

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The physical evidence says the door is not closed.

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He couldn't.

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His feet are hanging out.

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How could he close the door?

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I think he said he started to reach for the door.

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I think he said he was going to, he closed the door and he was going to flee.

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That's what the whole point of the carjacking.

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because he was going to close the door, and he was ready to leave.

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And we contested and said, no, he wasn't.

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He wasn't in the vehicle.

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And then also about anything about the alleged weapons and them being secured, we also showed physical evidence of the photos of all the buttons in the vehicle.

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And we even have Sergeant

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Anderson saying I don't know how to unlock and unsecure the rifle you got to push one of the buttons and she goes I don't know which one it is but there was a knife that was unsecured there was a knife somewhere in the vehicle, but we don't know where in the vehicle and I don't I know Billy didn't know where the Knife was in the vehicle.

[00:10:38] Speaker 02:
So that's the other thing is and then that goes back to the policy about securing the vehicle You can't leave your vehicle unsecured

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And that's one of the range of reasonable conduct is like, are there other lesser alternatives?

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Did you follow protocol?

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And I think the courts have been clear.

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It's like, yes.

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Even the Ninth Circuit is like, look, here it is.

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And then also when you're dealing with a mentally disturbed person, did you give orders?

[00:11:01] Speaker 02:
That's something that's in conflict whether there was orders given.

[00:11:04] Speaker 02:
Everybody says, we didn't hear any orders.

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Edwards says, Deputy Edwards says, I did give orders.

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But that's conflicting.

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And that's why that has to go to the jury.

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Did that happen?

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Did it not?

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And does the jury believe?

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Who are they going to give credibility?

[00:11:16] Speaker 02:
Do I believe Miss Powers or not?

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So I don't know if the court had any other questions right now.

[00:11:27] Speaker 03:
Do you want to save the rest of your time for rebuttal?

[00:11:29] Speaker 03:
Yes.

[00:11:30] Speaker 02:
OK.

[00:11:30] Speaker 02:
Thank you.

[00:11:31] Speaker 02:
Thank you.

[00:11:43] Speaker 00:
Good morning, Your Honors.

[00:11:44] Speaker 00:
May it please the court?

[00:11:44] Speaker 00:
Crystal Cowger for Pierce County and Deputy Colby Edwards.

[00:11:49] Speaker 00:
To address some of plaintiffs or Langfitt's misstatements that contradict the record, first,

[00:12:00] Speaker 00:
The county and Deputy Edwards assert that Langford was armed when he jumped in the patrol vehicle and effectively weaponized the vehicle by taking control of it.

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Witness Gary Taylor said that he saw something in Edwards' hand as he was running.

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He did not know what it was, but Deputy Edwards did not know what was in Langford's hand either.

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He just knew he saw something in his hand as he was running toward him and toward the vehicle.

[00:12:28] Speaker 00:
The photos that have been submitted and are in the record show Langford in the vehicle.

[00:12:33] Speaker 00:
Naomi Powers in the 911 call said that he was sitting in the seat.

[00:12:40] Speaker 00:
She said that he dove into the vehicle.

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He lunged into the vehicle.

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Gary Taylor said that Langford was running.

[00:12:50] Speaker 00:
Witness Kyle Black also said that Langford was running.

[00:12:54] Speaker 03:
What does the record show about how close Langford was to Edwards at the time he was running at him and at the time he then essentially pivoted and turned back towards the car?

[00:13:09] Speaker 00:
The situation all was fluid, and Edwards said that he was within a couple feet of the car when he exited the patrol vehicle, took a couple steps back to create slight distance, and then Langfit jumped into the vehicle, and Edwards was still there within a close proximity to the vehicle, and so that is another fact that we say is not disputed, and I guess that plaintiff is misstating what the record

[00:13:38] Speaker 00:
shows because the vehicle was not left unsecured.

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The deputy was standing next to the vehicle armed with his gun drawn.

[00:13:48] Speaker 00:
So he wasn't leaving his vehicle unsecured.

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He didn't leave and walk away and not know what was happening.

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He was guarding his vehicle actively.

[00:13:55] Speaker 01:
Was the was the patrol car the vehicle in traffic?

[00:14:00] Speaker 00:
It was it was in the roadway and so this was nighttime it was dark you know there were other cars stopped witnesses observing in the area.

[00:14:08] Speaker 00:
As this was all playing out, but it was in the roadway as he stopped and address the situation, because he w Edwards testimony was that he pulled you know up to.

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the roadway where this was all occurring, and as it was all unfolding, stopped his vehicle and then exited as length it was running toward him.

[00:14:31] Speaker 04:
What's your response then to counsel's argument that, yes, he was in the vehicle, but how he got there and how far in he was is a question of fact and is disputed?

[00:14:45] Speaker 00:
Your Honor, I don't believe it is a question of fact, because as the record shows, there's a photograph of him sitting on the seat.

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This is an SUV, a higher vehicle.

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It's not something where he's falling in a downward motion.

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He was up, sitting on the seat.

[00:15:01] Speaker 00:
We have a photograph of that.

[00:15:03] Speaker 01:
There are photographs taken after the shooting.

[00:15:06] Speaker 00:
After the shooting, we also have Naomi Power's statement to the 911 operator that says he was sitting in the seat.

[00:15:14] Speaker 00:
And Deputy Edwards says that he was sitting in the seat.

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And Deputy Edwards did not say that he closed the door.

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He said he was reaching for the door handle.

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in an attempt to close it.

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And that was as he was sitting in the seat.

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And Deputy Edwards also had testified that he was situating himself.

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He noticed Langford was situating himself in the seat and then attempting to close the door.

[00:15:45] Speaker 01:
Can we refine this window?

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And you correct me if I'm wrong.

[00:15:52] Speaker 01:
At the point in time, immediately before the shots were fired,

[00:15:56] Speaker 01:
One side seems to say that Lankfield was in the vehicle, seated in the driver's seat.

[00:16:06] Speaker 01:
The other side suggests that he was outside the vehicle and that when the shots happened, the force of the shots propelled Lankfield into the vehicle.

[00:16:17] Speaker 01:
Have I set that up correctly?

[00:16:21] Speaker 00:
Yes, Your Honor, and this was a rapidly unfolding situation.

[00:16:26] Speaker 00:
It was 11 seconds.

[00:16:27] Speaker 01:
If I describe this particular window right at that very instant, this is my question.

[00:16:35] Speaker 01:
Does it make a difference?

[00:16:37] Speaker 00:
Just to clarify your question, Your Honor, does it make a difference whether he was... In the vehicle or lunging toward it?

[00:16:46] Speaker 00:
I don't believe it does.

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make a difference and in terms of the reasonableness of the deputies actions well your honor and i would say

[00:16:56] Speaker 01:
And I have a yes or no or an explanation.

[00:16:58] Speaker 01:
Does it make a difference?

[00:16:59] Speaker 00:
I don't believe it makes a difference.

[00:17:01] Speaker 00:
And the evidence does show that he was in the vehicle.

[00:17:07] Speaker 00:
And the record's not disputed in what is shown.

[00:17:11] Speaker 00:
There's argument.

[00:17:13] Speaker 00:
We have argument here from plaintiff that that was what was happening.

[00:17:17] Speaker 01:
Your client's position is it doesn't make a difference.

[00:17:20] Speaker 00:
It doesn't make a difference, Your Honor.

[00:17:21] Speaker 01:
Now, my colleague asked you about physical distances.

[00:17:25] Speaker 01:
At the time the shots were fired, what does the record tell us about the physical distance between the deputy and Mr. Neinfeld?

[00:17:36] Speaker 00:
Your Honor, I cannot tell you a physical, how many physical feet, and I don't believe, I don't know what the record shows about the amount of feet.

[00:17:46] Speaker 01:
Your friend on the other side suggested 50 feet.

[00:17:49] Speaker 01:
Does that sound right?

[00:17:50] Speaker 00:
I don't believe it was 50 feet, Your Honor, because he was, the deputy testified he took a few steps back to create some distance, but he was still in a close proximity to the vehicle when the shots were fired.

[00:18:06] Speaker 01:
So there may be a question of fact as to whether a lesser form of force, i.e.

[00:18:15] Speaker 01:
the taser that the deputy had

[00:18:18] Speaker 01:
Available to him could have been used as opposed to deadly force.

[00:18:26] Speaker 00:
I Don't believe your honor that that's a material fact at issue here because what we're looking at in for

[00:18:37] Speaker 00:
The constitutional force is the reasonableness of the officer on scene.

[00:18:43] Speaker 00:
There was an immediate threat to the safety of the deputy and the public surrounding.

[00:18:48] Speaker 00:
We know that there are multiple vehicles and multiple citizens on scene, as well as the deputy himself positioned around the patrol vehicle.

[00:19:00] Speaker 00:
We're looking at the crimes at issue.

[00:19:02] Speaker 00:
When the deputy arrived on the scene, the first thing that he saw was Langford pounding on Powers' vehicle.

[00:19:09] Speaker 00:
We know that Naomi Powers had conveyed to the 911 operator while she was screaming and conveyed that Langford had pushed her to the ground.

[00:19:20] Speaker 00:
And under the record, a reasonable officer could believe that Langford was resisting or attempting to evade by flight.

[00:19:30] Speaker 00:
jumping into the vehicle.

[00:19:32] Speaker 01:
And what you've just said, I appreciate the argument, does not address the question of whether under the facts and circumstances, a lesser form of force could have been employed to stop Mr. Langford from doing whatever it was that he was intending to do.

[00:19:54] Speaker 00:
Well, your honor, lesser means is only a consideration if practicable and we have the case law that tells us when lesser means is available, even if lesser means is a force is available, it won't render the conduct of the deputy on the scene unreasonable because all that's required in responding to an exigent situation like we had here.

[00:20:13] Speaker 00:
is to act within the range of conduct that we identify as reasonable.

[00:20:18] Speaker 00:
And the cases that we've cited in our briefing, including the Mullinex v. Luna case, U.S.

[00:20:24] Speaker 00:
Supreme Court case that noted where a mentally ill man also attempted to flee in a running patrol vehicle and was shot before he did operate it dangerously in that case, the court said, we think the police need not have taken that chance and hoped for the best of

[00:20:44] Speaker 00:
Attempting a lesser force and so Here even if the lesser force was available to the death to the deputy or potentially would have been available We don't think it renders the conduct that he His conduct on scene unreasonable.

[00:21:01] Speaker 03:
Well, I mean even hearing this so it does seem

[00:21:04] Speaker 03:
Hopkins asked you know, does it matter if he was in the car if he was more kind of heading towards it and hearing your argument It does seem that that distinction may matter because if he's in the car the the risk of him Leaving with the car having access to the weapons in the car is way up.

[00:21:21] Speaker 03:
And if he's merely outside the car We're not yet at that at that point and I

[00:21:30] Speaker 00:
I do agree your honor, but I think that here what we have is the contemporaneous evidence, the contemporaneous statements of things that are happening on that evening.

[00:21:42] Speaker 00:
The only contradiction is Naomi powers is later declaration in opposition to summary judgment.

[00:21:49] Speaker 00:
The audio recording her testimony, the testimony of the other witnesses contradict the later declaration that he was never in the vehicle or did not jump into the vehicle because as we said,

[00:22:00] Speaker 00:
She said on that night he lunged into the vehicle.

[00:22:04] Speaker 00:
He dove into the vehicle.

[00:22:06] Speaker 00:
That was her perception when the events were unfolding.

[00:22:09] Speaker 00:
Later on, when attempting to avoid summary judgment, then it was, well, he wasn't in the vehicle.

[00:22:16] Speaker 00:
He was never in the vehicle.

[00:22:17] Speaker 00:
And to the extent that that later declaration seeks to contradict previous testimony, a declaration contradicting earlier deposition testimony does not create a genuine issue of fact.

[00:22:28] Speaker 00:
So we had one, her statement to the 911 operator, two, statement to the officer the night of the incident, three, statement during her deposition, all in line and in agreement.

[00:22:38] Speaker 00:
And number four, her declaration.

[00:22:41] Speaker 00:
And that is the only time that she contradicts her own prior statements is in her declaration in opposition to the motion for summary judgment.

[00:22:51] Speaker 01:
So setting those up just as you've described them.

[00:22:56] Speaker 01:
Does that permit us to disregard what she said in the affidavit, et cetera, in opposition to the summer judgment?

[00:23:10] Speaker 01:
Are we permitted to disregard that?

[00:23:14] Speaker 01:
I mean, yes, because... As appellate judges, are we permitted under the case law to say, I'm ignoring that?

[00:23:22] Speaker 01:
Or do we say to ourselves, this sounds like cross-examination to me?

[00:23:28] Speaker 00:
Well, Your Honor, the case law is clear that contradicting in a declaration previous testimony is not creating a genuine dispute of fact.

[00:23:38] Speaker 00:
So I would say, yes, we can't look at that and say, oh, now we have a dispute of fact.

[00:23:44] Speaker 00:
We don't, because everything before that point was in agreement and then only that later on.

[00:23:50] Speaker 00:
So I do believe that that is something that the court can look at and say, this is not.

[00:23:55] Speaker 01:
Was she deposed?

[00:23:56] Speaker 00:
She was.

[00:23:57] Speaker 01:
And was she asked about this contradiction?

[00:23:59] Speaker 01:
She was.

[00:23:59] Speaker 01:
What did she say?

[00:24:00] Speaker 00:
She said that he lunged and dove into the vehicle.

[00:24:03] Speaker 01:
What did she say about the contradiction between her statements at the time and her later affidavit in support of the opposition to summary judgment?

[00:24:15] Speaker 00:
Oh, sorry.

[00:24:15] Speaker 00:
I misunderstood your question first.

[00:24:17] Speaker 00:
The declaration came after her deposition.

[00:24:20] Speaker 00:
So she had the statements on the night of the incident.

[00:24:24] Speaker 00:
I got you.

[00:24:24] Speaker 01:
I got you.

[00:24:25] Speaker 01:
Thank you for that clarification.

[00:24:26] Speaker 01:
Appreciate it.

[00:24:30] Speaker 03:
What about the?

[00:24:30] Speaker 04:
If we were to, if we can't

[00:24:37] Speaker 04:
make a determination because there is an issue of fact.

[00:24:41] Speaker 04:
And I'm not saying there is, given her subsequent declaration.

[00:24:44] Speaker 04:
But if that were the case, does it come down in some matters to whether does it matter, whether he lunged or whether he fell, or does that all matter?

[00:24:57] Speaker 00:
I mean, Your Honor, I don't believe it does matter in the situation and with all of the facts and looking at one, the constitutional violation, looking at it from the perspective of Deputy Edwards, a reasonable officer on the scene, how the events are unfolding.

[00:25:17] Speaker 00:
And what he's perceiving as we've laid out that his decision to use the force was reasonable.

[00:25:25] Speaker 00:
And then in the other aspect, looking at qualified immunity, there's no

[00:25:32] Speaker 00:
Looking at the facts of this case and what the deputy was confronting, we don't have cases that are holding deadly force under similar circumstances such as was used here is beyond debate.

[00:25:44] Speaker 00:
And we've cited cases supporting that such use was not clearly prohibited under particular circumstances like in this case.

[00:25:56] Speaker 00:
And so I believe that looking at the situation that he confronted,

[00:26:02] Speaker 00:
Number one, not a constitutional violation.

[00:26:05] Speaker 00:
And number two, he was entitled to qualified immunity for the situation that he faced because we don't have case law specifically prohibiting that conduct.

[00:26:18] Speaker 00:
And here, Deputy Edwards' conduct did not violate the Fourth Amendment because

[00:26:25] Speaker 00:
And he was entitled to qualified immunity because in this 11 seconds of being confronted by this violent, erratic man running toward him with a pointed object in his hand and then jumping into his armed patrol vehicle, he made a reasonable decision under these dense and uncertain circumstances to use deadly force.

[00:26:42] Speaker 00:
And the case law clearly did not prohibit at that time the force that was used.

[00:26:49] Speaker 00:
And we asked this court to affirm the lower court's dismissal.

[00:26:54] Speaker 03:
Thank you, Mr. Calgar.

[00:26:56] Speaker 03:
And we'll hear rebuttal from Mr. Valdez.

[00:27:06] Speaker 02:
Your Honor, I think I heard the argument that the law was not clearly established.

[00:27:11] Speaker 02:
But the Ninth Circuit has spoken on this in Dorr v. Rutherford about a mentally disturbed individual who is unarmed, who's not given any warnings, and it says it's objectively unreasonable to shoot an unarmed man.

[00:27:23] Speaker 03:
Right, but not if the person presents an immediate threat, right?

[00:27:27] Speaker 03:
That's the question here.

[00:27:28] Speaker 02:
And that's the question here, is whether he presents an immediate threat or not.

[00:27:32] Speaker 02:
Because were he pivoted, did he then present a threat and a threat to who at that point?

[00:27:38] Speaker 02:
Because that's going to be the question, is who is the threat, for the safety of the officer or for others or for who?

[00:27:43] Speaker 02:
Because they're imagining like there is a traffic.

[00:27:46] Speaker 02:
Why isn't it both?

[00:27:47] Speaker 02:
I don't think it's both because the officer was in safety at first when he was in the vehicle, then he removed himself from the safety, right?

[00:27:55] Speaker 02:
So he was in safety in the vehicle.

[00:27:56] Speaker 02:
He didn't have to get out of the vehicle.

[00:27:57] Speaker 02:
He could have stayed in the vehicle the entire time, Your Honor.

[00:27:59] Speaker 04:
But that isn't, you know, that's true in every case.

[00:28:02] Speaker 04:
You could say, well, if the police never confronted the person, you never would have a confrontation.

[00:28:06] Speaker 04:
So that can hardly be the answer.

[00:28:09] Speaker 02:
Well, yes, your honor, but I guess what I'm trying to say is, then the argument, that's a circular argument because then you're saying, well, if he got in the vehicle, he could have injured us.

[00:28:17] Speaker 02:
Well, you left the vehicle, you left the vehicle unsecured.

[00:28:19] Speaker 02:
So how can you say, well, you don't argue about safety?

[00:28:23] Speaker 03:
I think the record showed that the vehicle was unsecured because he showed up and immediately confronted an active situation.

[00:28:30] Speaker 03:
He had to walk back, he had to move backwards quickly because Mr. Langford was essentially running at him.

[00:28:36] Speaker 02:
Well, that's where the question is, the reasonable alternatives, reasonable range.

[00:28:40] Speaker 02:
Did you assess the situation?

[00:28:41] Speaker 02:
That's what our expert has said.

[00:28:42] Speaker 02:
Did he assess the situation?

[00:28:44] Speaker 02:
Could you have used lesser force?

[00:28:46] Speaker 02:
One of the things in the policy says, even in Pierce County, assess the situation, take the time to monitor the situation.

[00:28:53] Speaker 02:
You don't have to rush.

[00:28:54] Speaker 02:
You don't have to escalate the situation because this is a situation where it could have been escalated.

[00:28:58] Speaker 02:
You open the door, leave the car running, leave the keys in, and then you draw your gun.

[00:29:01] Speaker 02:
When you know there's a mentally disturbed person, we take issue with that.

[00:29:05] Speaker 02:
You can say, look, you didn't have to.

[00:29:06] Speaker 02:
There's a reasonable range of alternatives here.

[00:29:08] Speaker 02:
This is what the training dictated for you, too.

[00:29:11] Speaker 02:
And then the question of whether he dove in or dived in, well, the question is, people have said he was unarmed.

[00:29:18] Speaker 02:
Now you're going to say, well, he was armed.

[00:29:19] Speaker 02:
Well, he could have been armed in the future.

[00:29:22] Speaker 02:
Well, even if you were to get a vehicle, I think an or versus a authority in there say, well, and the Ninth Circuit spoke to this in 2020.

[00:29:29] Speaker 02:
Did it go to individuals?

[00:29:31] Speaker 02:
Did it go towards the officers?

[00:29:32] Speaker 02:
Here, we don't even have that.

[00:29:33] Speaker 02:
We have this speculation of what would have happened if he would have got the vehicle, if he would have drove the vehicle.

[00:29:38] Speaker 02:
Those are a lot of ifs.

[00:29:39] Speaker 02:
And that's a lot of speculation.

[00:29:40] Speaker 03:
If he had lunged into the car or dogged into the car, would you say he presented an immediate threat at that point or he didn't?

[00:29:48] Speaker 02:
My argument is, and what I'm saying is, he was already shot before he was in the vehicle.

[00:29:52] Speaker 03:
No, I understand that position, but if he was in the vehicle, if he had dove in or lunged into the vehicle, do you think he presented an immediate threat at that point when he's inside the police car, the SUV?

[00:30:07] Speaker 02:
Well, and then the SUV is running and the vehicle is on, just like the facts were in this case, correct?

[00:30:15] Speaker 02:
I would say there's a possibility where he could have, because I don't even know if he knows how to access it, because the question is, what's he going to do?

[00:30:23] Speaker 02:
Is he going to move the vehicle and take the vehicle, or is he not going to take the vehicle?

[00:30:27] Speaker 02:
What is he going to do?

[00:30:28] Speaker 02:
We don't even know what he's going to do yet, but we are speculating he's going to flee, he's going to hit, he's going to do all these things.

[00:30:34] Speaker 02:
What we have to operate is what actually happened.

[00:30:37] Speaker 02:
And I can understand the argument.

[00:30:39] Speaker 02:
And I think they said, they cited the case long, but how long was it different?

[00:30:43] Speaker 02:
There was a communication.

[00:30:45] Speaker 02:
The individual actually took the vehicle, fled, moved, and there was a direction.

[00:30:49] Speaker 02:
Here, none of that happened.

[00:30:50] Speaker 03:
Can I ask you about the photographs before you conclude?

[00:30:52] Speaker 03:
The district court said that the idea that he fell into the seat doesn't make sense because he would have had to fall up, given that it was an SUV.

[00:31:02] Speaker 03:
How do you address that point?

[00:31:04] Speaker 02:
I would address that point to say, look,

[00:31:06] Speaker 02:
You're also making another credibility issue.

[00:31:09] Speaker 02:
What do you believe?

[00:31:10] Speaker 02:
Inferences are drawn to the non-moving party.

[00:31:12] Speaker 02:
That's for the jury to decide.

[00:31:14] Speaker 02:
The jury can say, OK, we don't.

[00:31:15] Speaker 02:
We do.

[00:31:16] Speaker 02:
But the judge is now making a determination and saying, look, this is the credibility.

[00:31:20] Speaker 02:
This is what I believe happened.

[00:31:22] Speaker 02:
These are the inferences that I'm going to take.

[00:31:24] Speaker 02:
And that's not the standard at this point.

[00:31:26] Speaker 02:
The standard is, what are the justifiable inferences for the non-moving party?

[00:31:30] Speaker 02:
All justifiable inferences.

[00:31:31] Speaker 02:
And the argument is, is our argument not justifiable?

[00:31:35] Speaker 02:
I would say it is.

[00:31:37] Speaker 02:
We do have a claim for that.

[00:31:38] Speaker 02:
We can say he fell in.

[00:31:40] Speaker 02:
If he was 30 feet away, and then we said he fell in, OK, then I would say, yeah, that doesn't make sense.

[00:31:45] Speaker 02:
How did he fall in the car if he was 30 feet away and shot?

[00:31:47] Speaker 02:
How did he fall in the car?

[00:31:48] Speaker 02:
That makes sense.

[00:31:49] Speaker 02:
Here, it's like, no.

[00:31:50] Speaker 02:
There's just a file for inference, and there's an argument to be made.

[00:31:53] Speaker 02:
He fell in the vehicle.

[00:31:54] Speaker 03:
We've let you a little of your time.

[00:31:55] Speaker 03:
Let me see if my colleagues have any further questions for you.

[00:31:57] Speaker 03:
Oh, sorry.

[00:31:58] Speaker 03:
Quite all right.

[00:31:59] Speaker 03:
And Mr. Valdez, thank you.

[00:32:00] Speaker 03:
Ms.

[00:32:00] Speaker 03:
Calgar, thank you.

[00:32:01] Speaker 03:
Thank you both for the briefing and argument.

[00:32:03] Speaker 03:
This case is submitted.

[00:32:04] Speaker 02:
Thank you, Your Honors.