[00:00:06] Speaker 01:
And we'll hear first from Mr. Hans, and you may proceed when you're ready.

[00:00:11] Speaker 04:
Good morning, Your Honors. Brenton Hans on behalf of Appellant Kimberly Ann.

[00:00:17] Speaker 04:
So I'd like to just proceed right to the heart of the matter, which I believe is the issue of qualified immunity here, and specifically whether the law was clearly established. So I would agree that the law is not clearly established and that the officer in this case would be entitled to qualified immunity if my client was actively resisting and if the officer's use of force was indeed trivial.

[00:00:44] Speaker 01:
But the video shows she says no, no, and reaches back.

[00:00:50] Speaker 01:
She stretches her body out back towards the counter that's behind her. That's not active resistance? No.

[00:00:57] Speaker 04:
Respectively, Your Honor, I've seen that video about 50 times. I don't see her reaching back. The time frame that we're talking about is about one second.

[00:01:05] Speaker 01:
There's clearly a frame where her arm is out and she's leaning.

[00:01:11] Speaker 04:
We're talking about what amounts to like a reflexive movement from when the officer goes up to her. He reaches in without any sort of a warning, without telling her that she's under arrest. And they all admit that they didn't order her out. And My position is that that video creates a dispute of fact. It's not clearly contradictory to her testimony. And so on that issue, it appears that you agree with the court.

[00:01:38] Speaker 01:
I'm asking because there is I mean, I could print it out and show you a frame where she's leaning. The arm is out reaching into the room. And then she also says, no, no. And so you're saying that that's consistent with a finding of only passive resistance. And I'm asking you to explain why you believe that's true.

[00:02:01] Speaker 04:
The passive resistance comes from the fact that she's never ordered out. She's never told that she's under arrest and under Nelson.

[00:02:08] Speaker 01:
Once he grabs her arm and pulls, she knows at that point he wants her to come out. And at that point, does she actively resist or passively resist?

[00:02:18] Speaker 04:
Respectfully, Your Honor, at that point, she doesn't know anything. Something has happened very suddenly. We're talking about like a About one second, 1.5 seconds from when he puts her arm on her to when her face collides.

[00:02:30] Speaker 01:
But the two things she does is say no, no, and reach the arm back into the room.

[00:02:35] Speaker 04:
She says no, yes. I don't see her reaching back. What I see is I see like a reflexive movement of when somebody who she didn't know is, you know, that she wasn't anticipating came in and grabbed her suddenly.

[00:02:48] Speaker 01:
And so if we're talking about resistance... I think the reason for it, you could just think the arm went up as part of the pull and it wasn't actually reaching towards the counter.

[00:02:56] Speaker 04:
Right. Not reaching toward a counter, not attempting to flee. And a jury could look at that video and they could reach a different conclusion from the district court. They could reach a different conclusion from the officers. They could reach a different conclusion from me. But it's their prerogative to make that determination.

[00:03:12] Speaker 01:
I want to understand where you started your argument. As I understand it, if you think there's no triable issue as to passive resistance and that no reasonable jury could conclude other than that, she was actively resisting, then qualified immunity would apply.

[00:03:29] Speaker 04:
If she was actively resisting, if the jury concludes that, yes, qualified immunity. If the jury concludes that the use of force was trivial, qualified immunity. Those, I believe, are reasonable concessions in the context of this case. The problem is those come down to factual disputes.

[00:03:46] Speaker 04:
and what the Supreme Court has said.

[00:03:48] Speaker 01:
So do you judge the reasonableness of the force by the nature of the force itself or by the consequences of the force?

[00:03:57] Speaker 04:
Well, it's both, Your Honor. So if we're talking about, you know, something that the physical contact, right, a shove or a push or a tackle, you can't really separate that from the consequences, the injuries that result. If you look at the Rice versus Morehouse case, you see in that case, the plaintiff was just tripped and they suffered grievous facial injuries. And then, you know, you have the Blankenhorn case where he was gang tackled and, you know, you didn't have lifelong injuries, but those were deemed to be significant uses of force above the level of trivial.

[00:04:36] Speaker 04:
Trivial would be something like, OK. like a push or something like that, even if it's not necessary, I think a court could reasonably say, okay, that's de minimis. But if you're talking about something where somebody suffered injuries, the result of the use of force and the force itself, you do have to view them together under the totality of the circumstances. Yes.

[00:04:55] Speaker 03:
Let me ask you, with respect to qualified immunity and cutting to the chase with respect to whether or not there's precedent that made the – lawfulness of this action beyond debate that would have informed the officer that what he was doing was wrong. What case do you cite for the proposition that this was clearly established?

[00:05:19] Speaker 04:
Rice versus Morehouse would be the most recent one, 2022. We have somebody who is at most passively noncompliant. I believe that I briefed that case, but also the Blankenhorn case. There's another case that we didn't, well, we cited it, but we didn't sort of expound upon it, but that's the Andrews versus Henderson case from 2022. Those are all examples of this

[00:05:42] Speaker 03:
And walk me through Rice. What was the nature of the force that was used in Rice?

[00:05:47] Speaker 04:
So the individual had refused to get out of the car and they pulled him out of the car. And when they're walking him away, they trip him and he hits the ground to the ground.

[00:05:56] Speaker 03:
Right. And so here, although your client asserts that she was thrown to the ground, she that seems to. Well, she wasn't. But you assert that she was pulled to the ground. Correct. Pulled into the doorframe. This is what the video shows. And I think I saw somewhere where there was some reference to pull to that. So then you don't claim that then she was pulled to the ground.

[00:06:19] Speaker 04:
She ended up on the ground. She's the poser face hits the doorframe.

[00:06:23] Speaker 03:
She's on the ground to the extent that she wasn't pulled to the ground, but merely ended up on the ground. Isn't that then distinguishing itself from rice?

[00:06:33] Speaker 04:
No, your honor. That would be an immaterial distinction. So the what the circuit precedent holds is. is that just because an officer happens to find a novel method of inflicting injury, that doesn't create a material distinction for purposes of clearly established law. If it's enough to put a reasonable officer on notice in those circumstances, then that's sufficient for qualified immunity.

[00:06:57] Speaker 01:
I mean, if you're tripping a person to put them prone on the ground, your intention is that their body will have contact with the ground.

[00:07:06] Speaker 01:
Do you think a reasonable trier of fact here could find that when he grabbed her, it was his intention to slam her into the doorframe?

[00:07:17] Speaker 04:
They could possibly find that, but it's the fact that her face hit the doorframe. So you're asking, does he have to intend it, and if the jury finds that he intends it? I don't believe the jury needs to find that.

[00:07:30] Speaker 01:
They could, but... I know, but if you want to have qualified immunity that it's clearly established, intentionally slamming someone, knowingly making contact with the ground, is different from pulling someone's arm, and fortuitously, she slams into the doorframe, which...

[00:07:46] Speaker 04:
You know, unless you think there's some evidence that he intended that if an officer intentionally breaks law, qualified immunity protects all those who are incompetent or who knowingly violate the law. But that doesn't mean that, you know, if he did something that was, you know.

[00:08:03] Speaker 04:
unreasonable under those circumstances. And it happened to result in injuries to her face that, that by the way, was the situation in rice.

[00:08:11] Speaker 02:
So it was no requirement. Yes. So he, I want to make sure that I understand what your argument is. Does your argument depend on her, on her hitting her face on the, on the door jam? If she doesn't know that she's under arrest and he has reached into her apartment where she's standing in her own apartment, and forcibly grabs her arm and pulls her out, but she doesn't hit the doorframe, does she have a Fourth Amendment claim here, an Eighth Amendment claim? Perhaps not, because as I argued in the results...

[00:08:50] Speaker 02:
and pulled her, then doesn't – I mean, that would be simple assault if it wasn't an officer, right? That would be an assault.

[00:08:58] Speaker 04:
Right.

[00:09:00] Speaker 02:
I want to make sure I understand what you're – Yeah, I'm trying to figure out whether her hitting the doorjamb is actually important here because Judge Collins says there doesn't appear to be any evidence that he intended – to slam her into the doorframe, as opposed to Rice, where they deliberately trip the man who's gotten out of his car.

[00:09:17] Speaker 04:
And Rice, they deliberately tripped him, but they didn't intend for his face to hit the ground.

[00:09:21] Speaker 02:
Well, they didn't intend for his face to hit the ground, but it wasn't hard to figure out that he was going to hit the ground.

[00:09:27] Speaker 04:
No, of course not. But in this case, if the officer pulls her, he intends that she's going to wrench in the direction that he's pulling her.

[00:09:34] Speaker 02:
Okay, but I'm just trying to figure out whether your argument actually depends on her hitting her face on the doorjamb. You may not have damages. It may not be worth bringing the case. But if he's grabbed her and she doesn't know that she's under arrest, then is that a violation of the Fourth or Eighth Amendments?

[00:09:51] Speaker 04:
if she doesn't know that she's under arrest.

[00:09:52] Speaker 02:
Right, if an officer simply grabs her, what if he didn't have probable cause at all? What if the boyfriend wasn't even on the premises?

[00:09:58] Speaker 04:
If he didn't have probable cause at all, that would be a far different situation. In this case, we can see that there is probable cause. I want to get back to your first question.

[00:10:08] Speaker 04:
Does her face hitting the doorjamb change the materials of the case? The answer is yes. You can't separate the injury suffered from a use of force. from the use of force itself. If an officer punches somebody, one person doesn't get brain damage, the other person does. You can infer that that use of force under those circumstances must have been more severe for the person who got brain damage. You can't just say that, well, as a matter of law, every instance of pulling or every punch or every trip Those are all this level of force.

[00:10:42] Speaker 04:
You do have to evaluate it in light of the injuries that are suffered. And in this case, the injuries to her face do indicate that it was a non-trivial use of force.

[00:10:54] Speaker 02:
So I just want to make sure I understand the framework of California law here. Under California law, did the officer have to arrest her because there had been a claim that she pushed her boyfriend?

[00:11:06] Speaker 04:
No, this officer is not required to arrest her. The law says that they need to make reasonable efforts to ascertain the dominant aggressor. And just to clear things up, we're not disputing the issue of probable cause here and that the officer could have arrested her. That's a concession that we're making. It's the manner in which he did it, the manner in which, you know, without warning, without telling her she's under arrest, without ordering her out, without any indication that she was violent or armed or anything like that.

[00:11:39] Speaker 04:
just spontaneously grabs her and her face hits the doorjamb. Under those circumstances, that is not a reasonable use of force. The probable cause issue, that's not something that we've disputed. And so I don't want those two issues to get mixed together. But were there any questions pending that I left hanging?

[00:11:59] Speaker 04:
If not, I'd like to reserve the rest of my time.

[00:12:02] Speaker 01:
Thank you, Your Honor. We'll hear next from Mr. Tyson.

[00:12:21] Speaker 00:
Good morning, Your Honor. May it please the court. Robert Tyson from the Anaheim City Attorney's Office on behalf of the appellees.

[00:12:28] Speaker 00:
We're focused today on the excessive force part of this case, which is solely against Officer Belching.

[00:12:33] Speaker 01:
Why didn't the officer just say, Ms. Ann, you are under arrest and I'm ordering you to step out? I mean, why not just say you're under arrest, step out, rather than just grab in and do what was done? It would have been much simpler, we all wouldn't be here. perhaps.

[00:12:53] Speaker 00:
Well, Your Honor, they tried a version of that.

[00:12:55] Speaker 01:
No, they said, you know, I need you to come out. I don't want to come out. Yeah, but your cat's already got out. I'm not worried about the cat. Well, we have your cat. I mean, this is like ask. It's like pleading with her to come out. Yes. And there isn't a clear order. I'm ordering you to come out. Get out here right now. They didn't even say it in that kind of tone, like get out here, stand right here. Instead, it's just this sort of conversational pleading and then grab her arm and then she's Flung into the doorframe.

[00:13:22] Speaker 02:
Belshi hasn't said a word to her at this point. He's been down the hall with the boyfriend. We've got the other two officers who have been conversing with her. And the last thing she's heard orally has been from the other officers. Belshi's never said a word to her.

[00:13:39] Speaker 01:
Actually, he says, we have your cat.

[00:13:41] Speaker 02:
Oh, we have your cat.

[00:13:41] Speaker 00:
Okay. Literally the last word said by any officer before he steps in is him saying, No, we have your cat around the corner responding to her argument about my dogs and cats. She declines for the third time since Officer Bell, she's been standing there to come out.

[00:13:58] Speaker 03:
Let me ask you, did she have an obligation to come out? She was in her home, correct?

[00:14:03] Speaker 00:
She's standing in her open doorway, Your Honor. Her body is holding that doorway open. We cited United States.

[00:14:09] Speaker 01:
But he's made a decision to arrest her. Given the signal that she was going to be arrested, just say you're under arrest, step out. Give some order that's clearer.

[00:14:20] Speaker 00:
Let me try it this way, Your Honor.

[00:14:23] Speaker 00:
That would be an option available to an officer in that situation. He comes down the hall.

[00:14:30] Speaker 00:
He's got probable cause to arrest her. They've done a little communication by hand signals between the officers. She's the one that's going to be arrested. They have probable cause. The officers invite her out twice. The second time is a little more forceful. I maybe don't want to go all the way that it's an order, but it's Officer Julianne saying, I need you to come out. She declines a second time. There's an exchange about the animals. Officer Bell, she pipes in, we've got your cat down around the corner. She refuses a third time. She's standing with her back. She's in the open doorway where they can arrest her, but she's at the back edge of that door by the handle.

[00:15:06] Speaker 00:
She's a half step from fleeing inside.

[00:15:09] Speaker 00:
So Officer Belshi at this point, she's refused three times to come out. They have probable cause to arrest her. She's in a spot where he can arrest her. He steps in. Does she know that they have probable cause to arrest her? Well, I think it's interesting, Your Honor. We pointed out in the brief that she predicted about two minutes before her arrest that Mr. Martinez would be trying to turn this around on her. So I think it's a fair argument that she predicted her arrest.

[00:15:37] Speaker 02:
What if the officers didn't have probable cause and Belshi just got irritated that she wouldn't come out and just reached in and pulled her? Do you lose your qualified immunity if the boyfriend has not told Belshi that he touched her?

[00:15:54] Speaker 00:
Well, Your Honor, we haven't briefed arrests without probable cause in this case because it was undisputed that the officers had probable cause.

[00:16:00] Speaker 02:
Sure, but I'm asking you the hypothetical. If we had the exact same thing, but there wasn't probable cause to arrest her, then what?

[00:16:08] Speaker 00:
Then he'd be making an argument about detaining her or something along those lines based on whatever the other facts are that are changed in that situation, I'm guessing, Your Honor. But if he didn't have probable cause, there's no indication here that without the probable cause, Officer Belsey is making that step in. There's just none. And I think right.

[00:16:26] Speaker 02:
But he's but he's I mean, I have to say this is a very, very frustrating case because she she is the one who called in. She's the one who's concerned that she's going to be assaulted by the boyfriend during during what's going to be a very tense day while he's moving out.

[00:16:41] Speaker 02:
They know that she's the one who's made the 9-11, the non-emergency call. She is standing in her own apartment, and now an officer all of a sudden, without any warning, without any explanation, without any demand or information that she is under arrest, reaches in and grabs her. This is utterly reflexive.

[00:17:03] Speaker 02:
What is resistant on her part is she doesn't want to be grabbed by somebody for reasons that she has no idea why she's being grabbed. She hasn't even been given the option of coming out because she is under arrest.

[00:17:18] Speaker 00:
And, Your Honor, I'm willing to...

[00:17:21] Speaker 00:
I can correct a couple things. I think there's a couple things in that statement that I disagree with somewhat. Yes, she made the call to the police dispatch in the morning, and she seemed to be making the call trying to have her boyfriend arrested for cheating on her.

[00:17:35] Speaker 00:
That's the conversation she seems to try to have with the police dispatcher. And then the police dispatcher hears when Mr. Martinez wakes up, appellant get absolutely enraged because she thinks she calls him the wrong name, and she is arguing loudly with him for four straight minutes to the point that the 911 dispatcher has to remind her that she is still on the phone with the police.

[00:18:02] Speaker 00:
She was clearly in that audio conversation with the dominant aggressor that we hear about in Penal Code 13701. Did any of these officers hear that call?

[00:18:15] Speaker 00:
No, but Officer Belsi referenced it to Mr. Martinez. Because the dispatchers relayed that information that a 415 was heard. The loud noises, the big argument between the two of them was heard. That is related to the officers. And Mr. Belsi brings it up with Mr. Martinez. So the officers are aware that there was a loud argument that morning. And they're open to whoever was the aggressor. And the only evidence is she hit him.

[00:18:44] Speaker 00:
That's the only evidence. She does not dispute that he did not hit her. She repeats it on the phone calls to dispatcher. She tells the officers at the doorway. She tells the officers after the fact, sitting on the curb when she's arrested, that he did not hit her.

[00:18:58] Speaker 03:
So reviewing this under the Graham analysis, there's no question that the appellant did not pose an immediate threat to the officers, correct?

[00:19:11] Speaker 00:
No, she didn't pose an immediate threat to the officers.

[00:19:14] Speaker 03:
She was calm when she was speaking with the officers, correct?

[00:19:18] Speaker 00:
In general terms, yes. Grab my water bottle here.

[00:19:21] Speaker 03:
And in terms of the idea of resisting arrest, she was never told she was under arrest in order to even be viewed as resisting arrest, was she?

[00:19:32] Speaker 00:
She wasn't told she was under arrest. Officers aren't required to tell them that people are under arrest. When they go to physically grab them, that's nice in some cases, of course, have said, but they have refrained from requiring it in every case for obvious reasons. And one of the reasons is what could have happened here. Like I said, she's in her open doorway holding that body open, but she's a half step from fleeing inside. Where there's a kitchen, where there's animals.

[00:19:57] Speaker 02:
The term fleeing inside just seems utter overkill in this situation. She's standing in her own apartment. She might take a step back. And then the door shuts, and that's the floor that would be needed.

[00:20:09] Speaker 00:
And then what? And then officers either have to follow her in there, which they're allowed to do under Santana and possibly lead to more force and doing things like you've talked about, like counsel's talked about in Blankenhorn and Rice, which didn't happen here, like throwing her to the ground, physically arresting her, taking out a taser. Who knows what she would have done if she did flee inside. There were animals in there. There was a kitchen right there visible that Officer Belshi is concerned in the minute few seconds where force is actually used here that she was reaching out for.

[00:20:44] Speaker 00:
So those are all things that could have happened. Now, this officer is standing there in the moment. It's got probable cause to arrest this person. She's standing in a spot where he is legally entitled to arrest her. And all he has to do is pull her a couple of feet out into the hallway where his colleagues are, and they can safely have enough room to arrest her. And that is all he starts off to try to do. And that's important to understand here, Your Honor. You can see him step in with both hands out like that.

[00:21:13] Speaker 00:
She turns and steps away.

[00:21:17] Speaker 00:
She describes it as stepping back. She describes it as leaning away. She agreed in her deposition testimony she tried to pull to get out of his grasp.

[00:21:26] Speaker 00:
She leaves him to grab just one arm, unfortunately, instead of from both sides that he approached her. And in the middle of this, he's got a split second to decide what to do at that point. Do I let her flee inside and let go? Do I just try to pull a little bit harder?

[00:21:44] Speaker 00:
He pulls just a little bit harder. She's out in the hallway. This use of force lasts two seconds.

[00:21:52] Speaker 00:
If you count the whole time when he even first Took that step in.

[00:22:00] Speaker 00:
Feels a resistance, makes the adjustment, which you can see on video him leaning down and pulling back on video. So it's all five seconds, but it's two seconds of force. And he does get her. He's just enough to get her in the hallway and then they get her handcuffs. The only issue in this case is that her face hit the doorframe because she was off balance from her resistance.

[00:22:20] Speaker 03:
One of the things that was argued by opposing counsel was the idea that there wasn't any affirmative resistance. It was passive and that her reaction was just a reflex and that this is something that should have been left to the jury. What's your response to that?

[00:22:37] Speaker 00:
My response to that is twofold, is one, well, threefold. One, it's on video. She wasn't passive. She stepped. She leaned. She reached out. The reach is only one aspect of her resistance. She leans back. You can see a step on Officer Belshi's video, and he got the reach out. Two, she admits all those things. Those are physical acts of resistance.

[00:23:03] Speaker 03:
But is it resistance or is it like reflexing? Somebody in the moment is pulling you and you don't wish to be pulled outside of your home.

[00:23:12] Speaker 00:
And that's the third part of my response, Your Honor. Graham, in every case since, has been absolutely clear you have to judge the reasonableness of the force from the perspective of a reasonable police officer.

[00:23:24] Speaker 00:
It's fine that's reflexive from her perspective.

[00:23:28] Speaker 00:
From the officer, what he sees is, I'm trying to gently bring her out here, and now she's pulling away. From his perspective, the physical acts that she admitted to are resisting. And it's a split-second decision, split-second use of force, and except for hitting the doorframe on the way out, it's effective because he uses it only for a second or two. She's in the hallway. They get her handcuffed. There's no objection to anything that happens after she comes in the hallway.

[00:23:58] Speaker 00:
This is just a split second.

[00:24:00] Speaker 03:
So you just disagree with opposing counsel as to whether or not this was something that the jury should have been entitled to decide?

[00:24:06] Speaker 00:
Oh, I absolutely disagree. This entire event is on video.

[00:24:10] Speaker 00:
It's a few seconds of reasonable force overcoming a few seconds of resistance.

[00:24:17] Speaker 00:
I absolutely agree. I don't think there's any issue to go to the jury here.

[00:24:20] Speaker 02:
But we would have to view that video in the light most favorable to Ann.

[00:24:28] Speaker 00:
You have to view the video in the light most favorable to Anne, but you have to judge the reasonableness of the force from the perspective of a reasonable police officer on the scene.

[00:24:42] Speaker 00:
And if you do that, and you put yourself in Officer Belshi's shoes...

[00:24:49] Speaker 00:
You've got a woman who's a half-step from fleeing. Yes, it's a short flight, Your Honor, but fleeing nevertheless inside a closed door.

[00:24:56] Speaker 02:
The worst that she could have done would have been to close the door, and he's standing right there. He could easily just stick his foot in the door.

[00:25:03] Speaker 00:
Well, he could have, and they could have, per Santana, they could have followed her in.

[00:25:06] Speaker 02:
Right, but sticking his foot in the door would prevent the door from being closed. But at some point, the officers need to tell her what's going on here.

[00:25:17] Speaker 00:
Your Honor, I'd point to...

[00:25:20] Speaker 00:
There's a case called Sidner cited in the papers, and that was a case where they used officers ended up using a vehicle to stop a bicyclist on a bicycle. But what the opinion points out midway through it is that the officers clearly communicated. And maybe it was more of a moped or a mini bike of some sort. But the officers clearly communicated in several different ways and steps that they wanted that cyclist to stop.

[00:25:46] Speaker 00:
An officer pulled over and approached him on foot and was trying to talk to him, and the guy sped by. They set up a roadblock. That didn't stop them. And there was something else. There were three things inside that those officers clearly communicated their desire for that bicyclist to stop, and he never did. In this case, the officers clearly communicated their desire to get her in the hallway. Once there was a little tap on the wrist between the officers and the communication, and they're all on the same page that she's the only one who assaulted anybody, that they're going to arrest her, Officer Julianne immediately invites her out into the hall.

[00:26:25] Speaker 00:
And then a second time, she says, actually, I need you to come out in the hall.

[00:26:30] Speaker 02:
And what is she supposed to understand by being invited into the hall?

[00:26:35] Speaker 00:
She's supposed to understand that police officers are telling her they want her in the hallway. Okay, but for what?

[00:26:43] Speaker 00:
Your Honor?

[00:26:44] Speaker 02:
Does that tell her? Is that supposed to understand that means that she's under arrest if she's in the hallway?

[00:26:52] Speaker 00:
Your Honor, I think it probably does tell her that, and I think it tells her that in a friendly, non-confrontational way.

[00:27:00] Speaker 00:
It's these officers telling her, We're about to arrest you, but we're trying not to make you more angry when you're in this spot where you're a half step from fleeing. The officers can use reasonable force at that spot. They can arrest her there. The few seconds of Officer Belch's force here were reasonable, and he had to make a split-second adjustment in the middle of it.

[00:27:22] Speaker 00:
I don't think the court would do anything different if you were in his shoes. Thank you, Your Honor.

[00:27:27] Speaker 01:
Thank you, Counsel. We'll hear a rebuttal.

[00:27:37] Speaker 04:
So I believe cancel talked about some of the concerns he invoked involved words, possibly the phrase of what the officer might have to do. And I just like to point out that those concerns are hypothetical and speculative. I'm talking just about what the officers did, what happened in the moment. And I'm not trying to second guess what the officers did. I know it's a very difficult job. But under these circumstances, it was unreasonable. And if you if you look at that video, there's a factual dispute about it. He's saying that it shows her fleeing.

[00:28:08] Speaker 04:
It does not show her fleeing. A jury could find otherwise.

[00:28:12] Speaker 04:
And same thing with her reaching for. Allegedly a weapon. And I just like I urge the court, take a look at the Supreme Court's case. Toland versus Cotton from 2014, one of the very few times that the Supreme Court has vacated an award of qualified immunity in recent years. And so it was an excessive force case. And basically, in that case, what the district court did is it resolved all the factual disputes in favor of the officers. And the Supreme Court intervened in a very, very rare circumstance to correct that error.

[00:28:43] Speaker 04:
And that's what appellees are asking the court to do here. They're asking to resolve factual disputes that should go to a jury.

[00:28:52] Speaker 04:
Now, a jury could find one way or the other. That's their prerogative, though. And I understand that. A video, now that we have video evidence, it's very tempting. People can watch it, make up their own minds, but this court should resist that temptation.

[00:29:09] Speaker 04:
Unless something is clearly contradicted by the testimony, you have to let the jury decide what the video shows. So this is not a situation where she said it was up, but the video shows that it was down, or she said that it was red, but it was actually blue. We're talking about something that involves a lot of facts, a lot of factors going into it, bearing on the reasonableness of the officer's actions, and it should be the jury, not a court, making those decisions as to those factual determinations. and backing up to qualified immunity.

[00:29:41] Speaker 04:
If the court finds that she was not actively resisting and that the force was indeed non-trivial, that brings us within those clearly established cases that I mentioned before. And that's why I had said at the outset that if those facts are found to be true, that she was actively resisting and that the force was non-trivial, then they might be entitled to qualified immunity.

[00:30:06] Speaker 03:
But otherwise, the law is clearly established. So the Supreme Court in Rivas-Villegas v. Corluna gave guidance to this court with respect to what is clearly established, and it required a trial.

[00:30:21] Speaker 03:
if not a pairing, a matching that I'm concerned that we don't have here between this case and the Rice case.

[00:30:33] Speaker 03:
And so could you address the Supreme Court?

[00:30:34] Speaker 04:
It is a very high bar, but what the Supreme Court has said is that you don't need a case on all fours. What it has to be is it has to be apparent in light of pre-existing law. And what this court has held repeatedly in light of the cases that I mentioned in other circumstances is Similar circumstances is that the law is clearly established. It doesn't have to address every exactly every every discrete use of force in every possible scenario in order to put the officer on notice. So my position is that it is specific enough.

[00:31:01] Speaker 04:
Thank you, Your Honor.

[00:31:02] Speaker 01:
Thank you, counsel. The case just argued will be submitted.