[00:00:04] Speaker 02:
Good morning.

[00:00:10] Speaker 02:
You may proceed.

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

[00:00:11] Speaker 00:
Good morning, your honors.

[00:00:13] Speaker 00:
May it please the court?

[00:00:14] Speaker 00:
My name is Lucia Lee.

[00:00:15] Speaker 00:
On behalf of Christopher Flores, I'd like to reserve five minutes for rebuttal.

[00:00:19] Speaker 00:
The split-second decision by Officer Flores to fire a single round when faced with an aggressive and unpredictable assailant who already successfully harmed his partner and himself and who remained in striking distance to do so again, as captured by video, presents the classic case for granting qualified immunity.

[00:00:38] Speaker 00:
Based on the undisputed material facts as shown by video at excerpt of record 789, neither prong of the qualified immunity analysis is satisfied.

[00:00:49] Speaker 00:
When viewing the undisputed facts again shown by video in light most favorable to Hampton, Flores did not violate any constitutional right.

[00:00:57] Speaker 00:
And in December 2019, it was certainly not clearly established that Officer Flores' single round under the totality of circumstances he faced was unlawful.

[00:01:08] Speaker 03:
Ms.

[00:01:08] Speaker 03:
Lee, I just want to make sure I understand.

[00:01:11] Speaker 03:
So I think our case law is clear that police officers may not continue to use deadly force when a suspect is wounded and does not pose a threat.

[00:01:23] Speaker 03:
Would you agree with that?

[00:01:25] Speaker 00:
That is the statement that Zion v. County of Orange stated.

[00:01:29] Speaker 00:
However, the en banc court here in the state of Hernandez v. Los Angeles clarified that the contours of the Zion analysis makes it distinguishable from this case in that Mr. Hampton was undisputably rising from the ground in the moments prior to the use of force.

[00:01:48] Speaker 03:
And that, again, is- When in this case, Mr. Hampton was rising,

[00:01:52] Speaker 03:
Is it undisputed also that he did not have any weapons on him?

[00:01:58] Speaker 00:
At this stage of the proceedings, the video does show that he did not have a bottle on him.

[00:02:03] Speaker 00:
But even so, the record at frames 1188 to 1244 does show Mr. Hampton rising from the ground.

[00:02:12] Speaker 00:
And this puts it squarely within the second volley analysis of Estate v. Hernandez.

[00:02:18] Speaker 00:
where the court unanimously found that a second volley against a suspect rising from the ground, even when that suspect may have been wounded or in pain due to earlier shots, and despite that he didn't attempt to get closer to that officer, indicated that the individual was not clearly incapacitated, and the officer could reasonably conclude that the suspect continued to present an imminent threat justifying legal course.

[00:02:42] Speaker 03:
And in this case, just so that I understand, in this case he had

[00:02:46] Speaker 03:
At this point, been shot six times.

[00:02:48] Speaker 03:
Is that correct?

[00:02:50] Speaker 00:
Officer Hayes did fire six times, but in the moment, neither Officer Flores or Officer Hayes knew whether or not Mr. Hampton was struck by the bullets or if he was wounded.

[00:03:02] Speaker 00:
Whereas in contrast to the video evidence that shows Mr. Hampton's continued and swift movements on the ground as rolling up and

[00:03:11] Speaker 00:
readying to rise from the ground again within striking distance of Officer Hayes, who had his back turned and was unable to defend himself, which is the basis of Officer Flores's imminent threat analysis that justified his use of force.

[00:03:30] Speaker 00:
And again the facts here and mr.. Hampton's swiftness body motion and continued movement on the ground Puts this case outside the realm of the third volley analysis in a state of hernandez Whereas there in hernandez that suspect was curled up in a ball in the fetal position rolling away from the officer and clearly here the video shows that Hampton did not give such indication that he was subdued or

[00:03:59] Speaker 00:
or clearly incapacitated such that Officer Flores should not act to intervene when Mr. Hampton was in striking distance from Officer Hayes.

[00:04:10] Speaker 00:
And indeed, Mr. Hampton did attempt to step up again and

[00:04:14] Speaker 00:
moved towards Officer Flores even after that challenged use of force.

[00:04:21] Speaker 00:
And so this puts us squarely in the second volley analysis of his state v. Hernandez and Officer Flores was reasonable in finding Mr. Hampton an imminent threat.

[00:04:33] Speaker 00:
The court in denying qualified immunity also relied on other distinguishable cases such as Hopkins or Tann Lamb

[00:04:43] Speaker 00:
that are very far afield from the facts here.

[00:04:47] Speaker 00:
In those cases there had been a break in time or break in the actions.

[00:04:51] Speaker 00:
In Hawkins, for instance, there had been a material change in the events in that the

[00:04:58] Speaker 00:
Officer fired at the individual six times in close range, had time and wherewithal to call for medical, crossed the street, reloaded his firearm, and was able to get into defensive positions by placing himself behind vehicles to dodge a plaintiff that he knew and recognized was injured and had nothing in his hand.

[00:05:22] Speaker 00:
And therefore, the court found that

[00:05:25] Speaker 00:
Officer could delay or had alternative less lethal options like a taser or a baton Whereas here of course we know even from the video itself that officer Flores had did not have a baton pepper spray was ineffective Hampton continued to Defy the commands and was undeterred even by officer Hayes's Lethal use of force

[00:05:50] Speaker 00:
Tan Lam was a post-trial case that again differed significantly factually from this case.

[00:05:58] Speaker 00:
The officer went into the bedroom of a frail individual who was in crisis.

[00:06:05] Speaker 00:
The individual tried to stab the officer with scissors and then there was a break in the action in that the officer was able to

[00:06:12] Speaker 00:
Remove himself from the bedroom go down a hallway speak to the Individuals father to explain why he did what he did.

[00:06:20] Speaker 00:
He cleared a jam in his gun called for help and was in a defensive position around the hallway when the

[00:06:28] Speaker 00:
Individual was quote stumbling down the hallway And the officer fired again killing the suspect without warning So those facts are very much distinguishable and in fact heart heart the city of Redwood City distinguishes tan lamb on the basis that the suspect in heart for instance was moving swiftly and appeared in control of his body similar to Hampton here and

[00:06:57] Speaker 00:
And so tan lamb on those factors are also distinguishable from here.

[00:07:07] Speaker 00:
In evaluating qualified immunity and whether or not there was clearly established law in December 2019, the Supreme Court has repeatedly cautioned us that use of excessive force is an area of law that the results depend very much on the facts of each case.

[00:07:25] Speaker 00:
And so officers are entitled qualified immunity unless existing precedent squarely governs the specific facts.

[00:07:31] Speaker 00:
And it's especially important for use of force because the court has recognized it is sometimes difficult for an officer to determine how the relevant legal doctrine excessive force will apply to the factual situation.

[00:07:47] Speaker 00:
The question, again, is whether or not the officer violated a clearly established statutory or constitutional right of which a reasonable person would have known, and whether or not the officer had fair notice that his actions are unlawful.

[00:08:06] Speaker 00:
It protects all but the plainly incompetent or those who knowingly violate the law.

[00:08:11] Speaker 00:
Here the rights were not sufficiently definite that any reasonable officer in officer Flores's shoes would have understood that he was violating it and I just want to touch on the point that there are no material dispute of fact here because we have a

[00:08:27] Speaker 00:
the opportunity to see the entire interaction with Mr. Hampton on video, and that video evidence is binding.

[00:08:35] Speaker 00:
Again, that's Excerpt of Record 789.

[00:08:38] Speaker 00:
The facts show that Hampton initiated the contact, continued attack despite officers' attempts to restrain, evade, and commands to get on the ground.

[00:08:49] Speaker 00:
tried to subdue him with pepper spray, and even the lethal force of Officer Hayes did not render Mr. Hampton clearly incapacitated.

[00:08:59] Speaker 00:
He didn't surrender, he didn't stop, and his actions instead were rising at the moment that Officer Flores used force.

[00:09:08] Speaker 03:
Again, putting us- So I understood your argument, I think in the papers, that it was reasonable for Mr. Flores to have a, that there was a mistake

[00:09:19] Speaker 03:
in his judgment, I think, in shooting this last shot.

[00:09:29] Speaker 03:
Was that not accurate?

[00:09:32] Speaker 00:
Mr. Flores did perceive that Hampton had a bottle in his hands but this is reasonable because Mr. Hampton was moving fluidly the entire time.

[00:09:45] Speaker 00:
Even the video is a bit unclear at which moment Mr. Hampton dropped that bottle and it is only with hindsight and the luxury of slowing down frame by frame would we ever see that Mr. Hampton dropped his bottle.

[00:09:58] Speaker 03:
Isn't that kind of sort of the quintessential question of fact that would best be served by a jury to make that determination?

[00:10:09] Speaker 00:
Well, even assuming that an officer or Officer Flores should have known or did perceive that Mr. Hampton did not have the bottle in his hand, according to the video, the court is still empowered to make a decision on whether or not Hampton posed an imminent threat and Mr. Hampton did at that time.

[00:10:30] Speaker 00:
I see my time is almost up, so I'd like to reserve my remaining time.

[00:10:34] Speaker 02:
Thank you.

[00:10:34] Speaker 02:
Okay.

[00:10:35] Speaker 02:
Thank you, Ms.

[00:10:35] Speaker 02:
Lee.

[00:10:36] Speaker 01:
We'll hear from counsel for Mr.. Hampton Good morning good morning May it please the court Ty Clark on behalf of plaintiff appellee, Jamaica Hampton When defendant Christopher Flores shot, Jamaica Hampton Mr.. Hampton was undisputedly unarmed seriously injured and on his hands and knees and

[00:11:05] Speaker 01:
This court's precedent is clear that in such circumstances, officers have a duty, a requirement under the Fourth Amendment to reassess the danger in light of evolving circumstances.

[00:11:17] Speaker 01:
This court made that clear at Wilcox, the Tan Lamb decision, the Zion decision, even all the way back to Hopkins.

[00:11:23] Speaker 01:
That case law has been clear that there is a duty to reassess that someone who presented a threat at one point may not continue to present that same threat.

[00:11:33] Speaker 01:
And here, the circumstances changed gravely.

[00:11:35] Speaker 01:
There was a first volley of shots.

[00:11:38] Speaker 01:
Mr. Hampton fell to the ground.

[00:11:39] Speaker 01:
It's undisputed that he dropped the bottle.

[00:11:42] Speaker 01:
Defendants' own experts concede that he was unarmed at all times.

[00:11:45] Speaker 01:
None of the cases that defendant appellant relies on involve an unarmed individual who's already grievously wounded and on the ground.

[00:11:55] Speaker 02:
Well, I think, I mean, it's your burden to come forward with clearly established law, not their burden to find clearly established law that supports them.

[00:12:02] Speaker 02:
And so the question I think here is, among other things, how do you deal with the fact that there's this very violent interaction, right?

[00:12:10] Speaker 02:
It's all happening extremely quickly.

[00:12:13] Speaker 02:
Shots are fired, and then he is plainly getting up at the very end of the interaction.

[00:12:18] Speaker 02:
And that is different than a case like Zion, where it said he was not getting up.

[00:12:23] Speaker 01:
Taking the facts in the light, most favorable to plaintiff, and taking their own defendant police practice expert statement, he was collapsing back to the ground at the time that Officer Flores shot his shot.

[00:12:36] Speaker 02:
But even... We're watching the video, right?

[00:12:39] Speaker 02:
So in the video, it's apparent that he's down and then he starts to get back up.

[00:12:44] Speaker 02:
At least, probably twice.

[00:12:46] Speaker 02:
Once before the shot and then once afterwards.

[00:12:50] Speaker 01:
As the district court found, getting back up is not dispositive.

[00:12:53] Speaker 01:
In Tan Lamb, you have an individual decedent who had gotten up and was walking towards, undisputed that he's walking down a narrow hallway to the defendant officer there.

[00:13:03] Speaker 01:
In Hopkins, it's undisputed that

[00:13:05] Speaker 01:
the decedent who had already assaulted the officer, already been shot once, gets up and is following him.

[00:13:10] Speaker 01:
The language there was at a brisk pace.

[00:13:12] Speaker 02:
That's true.

[00:13:13] Speaker 02:
I mean, the issue, obviously, in those cases is just the timing and how fast it happened, right?

[00:13:18] Speaker 02:
So, I mean, we're looking at Supreme Court precedent that talks about, you know, it has to squarely govern the facts and things along those nature for qualified immunity.

[00:13:26] Speaker 02:
I'm not talking about the Constitutional violation.

[00:13:28] Speaker 02:
I'm talking about the qualified immunity.

[00:13:30] Speaker 02:
We have cases like Hopkins and Tanland, but they

[00:13:33] Speaker 02:
they do involve a greater time interval, it would seem, than what we have here.

[00:13:37] Speaker 02:
So how do you get around that issue from a qualified immunity standpoint?

[00:13:41] Speaker 01:
Well, it's a greater time interval.

[00:13:43] Speaker 01:
The crucial inquiry is the time to reassess.

[00:13:46] Speaker 01:
And here, it's undisputed that Officer Flores had time to reassess, because that's exactly what his fellow officer, Officer Hayes, did and has testified to multiple times, that he reassessed the danger after Mr. Hampton fell to the ground, determined that there no longer was a danger, was so confident in that determination

[00:14:03] Speaker 01:
that he was already taking the process of summoning medical aid for Mr. Hampton.

[00:14:07] Speaker 01:
So I agree with Your Honor that there was more time in Tan Lamb and Hopkins.

[00:14:12] Speaker 01:
The crucial inquiry is the time to reassess.

[00:14:15] Speaker 01:
Here, Officer Flores had that.

[00:14:17] Speaker 01:
We know that, because Officer Hayes had that, and he was in the exact same situation.

[00:14:20] Speaker 02:
Well, I don't know about that.

[00:14:21] Speaker 02:
I mean, Officer Hayes was the one who fired the shots.

[00:14:23] Speaker 02:
This is all happening so fast, right?

[00:14:25] Speaker 02:
You watch the video, and everything happens extremely quickly.

[00:14:29] Speaker 02:
And so to slow it down in the way that we're doing is a little bit difficult under Supreme Court precedent, which talks about the need for officers to make split-second judgments and things of that nature.

[00:14:41] Speaker 01:
Just because the shooting happened quickly does not mean that there was such a short time window.

[00:14:46] Speaker 01:
Here, Officer Flores is the reason that he rushes the situation.

[00:14:52] Speaker 01:
He's the one who approaches Mr. Hampton while he's on the ground.

[00:14:54] Speaker 01:
You can see in the video that you referenced that he approaches more than a car distance length.

[00:14:59] Speaker 01:
He's the one who narrows the time window.

[00:15:02] Speaker 01:
But even beyond that, in Zion, the time window is virtually identical, about five seconds in both cases.

[00:15:07] Speaker 01:
And there was a dispute in Zion whether

[00:15:09] Speaker 01:
that the decedent there was getting up again.

[00:15:12] Speaker 01:
So I think this is exactly the kind of factual inquiry for a jury to decide.

[00:15:17] Speaker 01:
But I would point to the court's language in Zion, where it says, an officer violates a clearly established right when he shoots an incapacitated suspect who no longer poses a threat, even if the suspect previously had a weapon.

[00:15:30] Speaker 02:
But isn't it clear from the video that he's not incapacitated?

[00:15:32] Speaker 02:
He's getting up.

[00:15:34] Speaker 01:
he's on his hands and knees.

[00:15:36] Speaker 01:
He's not rising to his feet.

[00:15:38] Speaker 01:
He maybe gets up under one foot.

[00:15:40] Speaker 01:
But I would not, I think in the light most, in the facts taking him in the light most favorable to plaintiff, as this court must at this stage, I would not say it's definitive that he's not, that he's getting up, that he's capable to rise.

[00:15:50] Speaker 02:
I mean here don't we get into the issue of Hernandez and the

[00:15:54] Speaker 02:
the distinction that the Ambon Court drew between the second and the third volleys there, because in the third volley, again, that's what split the Ambon Court, but the majority concluded that there was no basis to conclude the assailant there was getting up.

[00:16:10] Speaker 02:
But the second shot, the court found unanimously that he was getting up, and in fact, concluded not just that there was no clearly established violation, but that there was no violation at all.

[00:16:22] Speaker 02:
And so if there's no violation there as a matter of law, how is this one clearly established in the other direction?

[00:16:29] Speaker 01:
Hernandez involves an armed suspect.

[00:16:30] Speaker 01:
This is an unarmed suspect.

[00:16:32] Speaker 01:
I think it's a very easy distinguishing factor.

[00:16:34] Speaker 01:
Completely different situation in that one is armed with a knife also.

[00:16:38] Speaker 01:
I've watched the video in hernandez I think he's rising more than in this but I think more more crucially more fundamentally armed suspect versus unarmed suspect No, that's it.

[00:16:46] Speaker 02:
That's a good distinction I mean the thing is there are other distinctions that one could say cut the other way right the distance between the officers here Seems much closer than in hernandez.

[00:16:54] Speaker 02:
It's true that that hernandez had a knife but he was also so far away from everybody that it didn't seem that a

[00:16:59] Speaker 02:
the knife was an imminent threat to anybody who was right around.

[00:17:05] Speaker 02:
And of course, here you had Mr. Flores who had, excuse me, Mr. Hampton, who had assaulted the officers repeatedly for almost a minute in the middle of the street where people were walking by.

[00:17:15] Speaker 02:
That had not happened in Hernandez either.

[00:17:17] Speaker 02:
So there's some facts, I grant you, that are a little different, perhaps more favorable to you than Hernandez, but there are other facts that do seem less favorable.

[00:17:25] Speaker 02:
And at the end of the day, the question is just, is it clearly established that there's a violation?

[00:17:29] Speaker 01:
This court said in Johnson v. Myers that it's whether a case is sufficiently similar to allow a meaningful comparison.

[00:17:39] Speaker 01:
I would contend Zion's sufficiently similar.

[00:17:42] Speaker 01:
Injured suspect, first volley of shots after an assault on an officer and two civilians in Zion where you have him stabbed, two people in an apartment, runs out, stabs an officer, is running back, shot to the ground, falls to the ground, that first volley not challenged.

[00:17:56] Speaker 01:
That officer then

[00:17:58] Speaker 01:
Shoot or the other officer then shoots him on the ground about five seconds later again identical time There's a dispute whether he's standing up there that suspect There's a dispute whether he has the knife still on his hand here undisputed that he was unarmed So I'd say that is sufficiently similar to allow meaningful comparison tan lamps sufficiently similar to allow meaningful comparison You have a suspect who's assaulted an officer who stabbed that officer?

[00:18:22] Speaker 01:
who's now on his feet, that's more dangerous than what Officer Flores faced here, and is approaching him in an enclosed space, and that officer doesn't have backup.

[00:18:30] Speaker 01:
Here, Officer Flores has backup.

[00:18:32] Speaker 01:
That's sufficiently similar to allow meaningful comparison.

[00:18:35] Speaker 01:
Hopkins, sufficiently similar.

[00:18:36] Speaker 02:
That's not the test, though.

[00:18:37] Speaker 02:
The test is not sufficiently similar to draw meaningful comparison.

[00:18:41] Speaker 02:
The test is, does it squarely govern the specific facts of this case?

[00:18:44] Speaker 02:
That's what the Supreme Court has said.

[00:18:46] Speaker 02:
So that seems quite a bit different than what you're arguing.

[00:18:50] Speaker 01:
I would say that Zion and

[00:18:52] Speaker 01:
and Tanlam squarely govern, and even Hopkins as well, they squarely govern.

[00:18:56] Speaker 01:
They involve incapacitated suspects who at one point posed a threat, and the officers are required to reassess that threat in evolving circumstances.

[00:19:05] Speaker 01:
That squarely governs here.

[00:19:08] Speaker 01:
As this court has said, you can't require factually identical, and that's what the defendant appellant is asking this court to do.

[00:19:14] Speaker 01:
They're asking you to make it factually identical and say it's not clearly established because it's not factually identical.

[00:19:20] Speaker 01:
But these facts are so similar.

[00:19:22] Speaker 01:
Again, taking this court's language in tan lamb.

[00:19:24] Speaker 01:
At the time of the incident, case law had made clear that an officer violates the Fourth Amendment by shooting a person who had previously injured someone but no longer posed an immediate threat.

[00:19:34] Speaker 01:
That's exactly what happened here.

[00:19:35] Speaker 01:
It's exactly the case in front of this court.

[00:19:42] Speaker 02:
Okay, I don't think there's any more questions for you, so unless you have anything else you want to offer, we'll hear for rebuttal.

[00:19:49] Speaker 02:
Thank you, Your Honor.

[00:19:50] Speaker ?:
Thank you.

[00:20:08] Speaker 00:
plaintiff urges this court to consider the precise moment that flores is shot which is the moment of threat analysis that the supreme court has recently rejected this circuit considers the totality of circumstances which includes all of the conduct leading up to during and even all of the factors that an officer reasonably perceived during the incident itself and here

[00:20:36] Speaker 00:
Video shows that Hampton was clearly not incapacitated before, during, or even immediately after Flores's use of force.

[00:20:45] Speaker 00:
and certainly no case law has indicated that squarely governs the circumstances here.

[00:20:53] Speaker 00:
Even in Estate of Hernandez, my friend on the other side mentions that some of the cases discuss armed suspects.

[00:21:02] Speaker 00:
In Estate of Hernandez, the suspect was 36 feet away from the officer and the court there

[00:21:10] Speaker 00:
indicated that distance was well beyond striking distance so it must not be that the ability for the suspect to use the weapon itself on the officer is dispositive on the imminent threat analysis but again because of Hampton's undisputed body motions in rising

[00:21:28] Speaker 00:
indicating that he had the ability to control his movements, move swiftly, and being within striking distance of Officer Hayes, it puts us back in the second volley analysis of estate V Hernandez.

[00:21:43] Speaker 00:
Officer Hayes' analysis of what happened and whether or not Hampton posed an imminent threat was one, in a different time, but two, it's undisputed that Hampton's

[00:21:56] Speaker 00:
rise was not seen by Officer Hayes.

[00:21:59] Speaker 00:
Officer Hayes had his back turned.

[00:22:01] Speaker 00:
He did not see the conduct that is undisputed and shown on video.

[00:22:07] Speaker 00:
So his assessment of threat is immaterial.

[00:22:11] Speaker 00:
We must gauge the reasonableness of use of force from Officer Flores's perspective, and he was responding to the change in circumstance of Hampton rising from the ground.

[00:22:25] Speaker 00:
Again it is plaintiff's burden to establish that there has been clearly established right and present cases that squarely govern the facts of this case and here there simply are no such case.

[00:22:41] Speaker 00:
Zion is distinguishable based on

[00:22:43] Speaker 00:
The fact that Hampton was rising Hopkins was a wholly different case that did not have any video evidence as we have the luxury here tan lamb also again is a case that involves a more significant break in distance in the officer having ability to Remove himself or delay

[00:23:09] Speaker 00:
in a defensive position, whereas here Officer Flores cannot delay because Hampton was within striking distance of Hayes as he was rising.

[00:23:18] Speaker 00:
And so it was objectively reasonable for Officer Flores to deem Hampton an immediate threat pursuant to a state of Hernandez's second volley analysis, and there was also no clearly established law or case that squarely governs the facts here.

[00:23:33] Speaker 00:
And because qualified immunity allows officers like Flores to reasonably do their jobs, face the dangerous, tense, and rapidly evolving situations in good faith, especially when the law was not clearly established at the time of the incident, he did not violate any constitutional right, and he is entitled to qualified immunity.

[00:23:53] Speaker 00:
So we ask the court to reverse and grant qualified immunity.

[00:23:56] Speaker 00:
Thank you.

[00:23:58] Speaker 02:
Thank you.

[00:23:59] Speaker 02:
We thank both counsel for the briefing and arguments.

[00:24:02] Speaker 02:
This case is submitted.

[00:24:03] Speaker 02:
That concludes our calendar for the morning.

[00:24:05] Speaker 02:
We'll stand in recess until tomorrow.