[00:00:04] Speaker 04:
Good morning, Your Honors.

[00:00:05] Speaker 04:
May it please the Court, Muna Busela, on behalf of Appellant and Defendant, Lieutenant John Genal, with the LAPD.

[00:00:13] Speaker 04:
We respectfully request two minutes be reserved.

[00:00:31] Speaker 04:
court to reverse the district court's decision on qualified immunity.

[00:00:35] Speaker 04:
As this court is aware, and the Supreme Court has indicated, the courts have been cautioned to not define the clearly established prong with too high of a level of generality.

[00:00:45] Speaker 04:
And in this case, we believe the district court did by defining the clearly established prong as the use of

[00:01:05] Speaker 04:
But you agree we have to construe the facts in a light most favorable to the planet?

[00:01:43] Speaker 02:
that the object that was being held was just a phone rather than a weapon or something else.

[00:01:49] Speaker 02:
Is that right?

[00:01:51] Speaker 02:
Correct, Your Honor.

[00:01:53] Speaker 02:
And why isn't that a disputed fact?

[00:01:57] Speaker 04:
It very well could be a disputed fact.

[00:01:58] Speaker 04:
The fact that this case has disputed facts does not mean that he's still not entitled to qualified immunity under the clearly established bond, if not under the objective reasonableness of the force.

[00:02:16] Speaker 02:
know that it was only a phone.

[00:02:18] Speaker 02:
If a jury could find that he did know that it was only a phone, then the argument based on the circumstance where he didn't know goes away, doesn't it?

[00:02:30] Speaker 04:
Yes, but that imputes hindsight.

[00:02:33] Speaker 02:
Because the jury would have to— It's not—it's not hindsight.

[00:02:35] Speaker 02:
It's—it's just sight.

[00:02:38] Speaker 02:
Right?

[00:02:38] Speaker 02:
I mean, like,

[00:02:48] Speaker 02:
that by direct evidence of what he actually saw, but we have the video, we have testimony about the phone was plainly visible, and so from those things the jury could believe him or it could not believe him, and it could infer that he actually did see it, couldn't they?

[00:03:03] Speaker 04:
Correct, and the fact that he did see that the object was a phone then would lead to whether the force could have been reasonable, but the court has also allowed for breathing rooms, so the mistakes of

[00:03:23] Speaker 04:
phone in that instant later determined it was a phone and used force as he did in this case.

[00:03:29] Speaker 04:
It's striking what he thought was the object.

[00:03:31] Speaker 05:
It sounds to me that the challenge that you're making, your client is making here on appeal really has to do with exactly what you just described, which is whether or not the district court's determination that there is a genuine issue of material fact is incorrect because all of what you've argued so far really doesn't

[00:03:55] Speaker 05:
Would you agree with that?

[00:03:57] Speaker 05:
Yes, based on the question that I was presented, I divert it.

[00:04:01] Speaker 04:
However, we would like the court to focus on the clearly established problem, because if it's written or defined- And why exactly are you wanting us to focus on?

[00:04:09] Speaker 05:
Because as I read your brief at page 15, you essentially concede that it's clearly established that an officer may not use an overhand baton strike on a non-threatening, law-abiding individual.

[00:04:22] Speaker 05:
Do you agree with that, Chris?

[00:04:30] Speaker 04:
did not include or consider in its definition the specific facts that we deal with in this case.

[00:04:37] Speaker 04:
So we contend that it's taking it out of the context.

[00:04:41] Speaker 04:
It's not involving – maybe a more appropriate definition would be something along the lines of a baton strike against a nonviolent, nonresistant individual who is in and amongst a violent group of protesters who were grabbing at the baton and assaulting the officer.

[00:05:04] Speaker 04:
the definition, it's not established in this case.

[00:05:08] Speaker 04:
Mr. Clark made it too broad for it to encompass the specific facts, and there is no case law that squarely governs the kind of situation that Lieutenant John was in.

[00:05:19] Speaker 03:
Well, you're positing a fact situation that would make it difficult for him to know what was in the person's hand, but that's your version of the facts.

[00:05:31] Speaker 03:
That's not the plaintiff's version of the facts.

[00:05:35] Speaker 03:
Frank's version of the facts is that he should have known that this person was not a threat, because the situation was such that he could observe what was there.

[00:05:58] Speaker 04:
Correct, Your Honor, but since the

[00:06:37] Speaker 04:
situation that's rapidly escalating would constitute clearly established law that he violated.

[00:06:49] Speaker 04:
If we go to the fact that the issue of objective reasonableness, which is what the – oh, prior to that, may I?

[00:06:56] Speaker 04:
We would like to draw the Court's attention to the fact that if you look at Plano Fappelli's Exhibit 11,

[00:07:18] Speaker 04:
video, which is submitted by the Plainiff Appellate.

[00:07:22] Speaker 04:
If you pause at 7 minutes 36 seconds, you'll see what Janal was facing, which is hands on his batons, pulling at his baton, and right within inches is the Plainiff's fingers and hands, and his phone.

[00:07:38] Speaker 04:
All of that is all in the same mix.

[00:07:51] Speaker 04:
may bring some light to what we are arguing with respect to so much going on at one time and his ability to make that determination, including the fact that he needs to be given some breathing room with respect to potentially mistakes.

[00:08:08] Speaker 04:
If we're looking at the additionally in the

[00:08:17] Speaker 04:
Distinguishing the facts that the district court brought up with respect to the non-passive, non-resistant, we don't have those facts here, so I don't think they're applicable to help support the district court's decision that the law was clearly established.

[00:08:30] Speaker 04:
All of those facts, I mean all of the cases that were cited by the district court in support, deal with a non-resistant, non-passive type of individual, which we don't have.

[00:08:41] Speaker 04:
And going to the reasonableness of the force,

[00:08:46] Speaker 04:
We contend taking the totality of the circumstances that Janal was facing, including from the perspective of reasonable officer on the scene as opposed to imputing 2020 hindsight.

[00:08:58] Speaker 04:
We think that the facts lend itself to demonstrate that it was a chaotic pandemonium-type situation with hands everywhere being pushed, yelled at, grabbed at, and he sees an arm reached up, and even looking at the deposition testimony of the plaintiff,

[00:09:35] Speaker 04:
unidentified object in his hands, any strikes therein.

[00:09:38] Speaker 04:
And for those purposes, we think that the Court should reverse some judgment in denial.

[00:09:49] Speaker 01:
Thank you.

[00:10:08] Speaker 00:
I think it's worth touching on the facts of what happened here.

[00:10:12] Speaker 00:
Plaintiff was compliant and backed up when he was asked to.

[00:10:15] Speaker 00:
He was a journalist.

[00:10:16] Speaker 00:
He had a five-by-seven-inch sign saying he was a journalist.

[00:10:20] Speaker 00:
He committed no crime for approximately 20 seconds before the strike.

[00:10:25] Speaker 00:
The city at all has seen Plaintiff with a phone in his hand, in the same hand, in the same position.

[00:10:32] Speaker 05:
And we must construe the facts in a light most favorable to your claim, right?

[00:10:36] Speaker 00:
That's correct, Your Honor.

[00:10:37] Speaker 00:
I think it's a fundamental issue in this case.

[00:10:41] Speaker 00:
His plaintiff saying his camera is directly in the line of sight of Lieutenant Yenal, and he's backing away from Lieutenant Yenal when he strikes him.

[00:10:51] Speaker 00:
So it's clearly established under our set of the facts that you can't strike a non-violent, non-threatening protester.

[00:10:58] Speaker 00:
I think your friend on the other side conceded that point.

[00:11:01] Speaker 00:
Correct.

[00:11:02] Speaker 00:
I think that's another issue.

[00:11:03] Speaker 00:
Fundamentally, the case comes

[00:11:07] Speaker 00:
perceive what plaintiff Singh was doing.

[00:11:11] Speaker 00:
They say he can't, but that's very much a jury question.

[00:11:14] Speaker 00:
This was addressed by two of your honors in Peck versus Montoya, which outlines in detail the posture here as well, which is that you have to accept, in addition to accepting the facts, the like most favorable of the plaintiff, you have the facts that the district court found.

[00:11:29] Speaker 00:
The district court himself found that a reasonable jury could find

[00:11:47] Speaker 03:
not actually a finding of fact.

[00:11:49] Speaker 03:
That's a construction of the facts in your favor, I think, rather than acting as a fact finder.

[00:12:01] Speaker 00:
I do think it's a fact, and that it's a question that a jury could find.

[00:12:04] Speaker 00:
Was he reasonably, was the tenant in all reasonably viewing any sort of threat?

[00:12:09] Speaker 00:
So insofar as the district court

[00:12:20] Speaker 00:
you're saying the jury would be able to find that fact.

[00:12:25] Speaker 00:
So I don't think there's much of an issue here that there is qualified immunity if the facts are construed as we allege and as a district court found.

[00:12:34] Speaker 00:
I think that a reasonable jury could very much find that.

[00:12:37] Speaker 00:
I'm happy to go into more details with the record if that's helpful, but both the jury

[00:12:54] Speaker 01:
There's no further questions.

[00:12:57] Speaker 01:
Thank you.

[00:12:58] Speaker 04:
I have nothing further to add.

[00:13:11] Speaker 04:
Thank you for your time.

[00:13:12] Speaker 02:
Thank you very much.

[00:13:12] Speaker 02:
We thank both counsel for their arguments and the case is submitted.