[00:00:00] Speaker 02:
sides for your helpful arguments this morning.

[00:00:16] Speaker 02:
And we'll proceed to hear argument in the third case on

[00:00:20] Speaker 02:
calendar for argument this morning, which is 24-7356 Tristan Assance versus Brandon Holzer.

[00:00:40] Speaker 02:
I think you're on the wrong sides.

[00:00:42] Speaker 02:
That's correct.

[00:00:51] Speaker 02:
And we'll hear first from Ms.

[00:00:53] Speaker 02:
Handelman.

[00:01:16] Speaker 00:
Good morning, Your Honors.

[00:01:17] Speaker 00:
May it please the Court.

[00:01:18] Speaker 00:
My name is Leah Handelman.

[00:01:20] Speaker 00:
I'm here with my co-counsel, Dylan Barkley.

[00:01:22] Speaker 00:
We represent Detective Brandon Holzer, who's the appellant in this case.

[00:01:26] Speaker 00:
He's from the Lincoln County Sheriff's Department in Libby, Montana.

[00:01:29] Speaker 00:
I'd like to reserve two minutes for rebuttal, if I may.

[00:01:34] Speaker 00:
The doctrine of qualified immunity recognizes that in tense and rapidly evolving situations, courts are reluctant to second-guess law enforcement officer's decisions without looking at the entire event and considering the officer's mindset amid the uncertainty and the chaos.

[00:01:51] Speaker 00:
Chaos and uncertainty clearly describe what detective holes are faced on the morning of January 14th, 2021.

[00:01:59] Speaker 00:
The undisputed facts established that on that January morning, Detective Holzer and his fellow law enforcement officers were faced what can only be described as a tense, rapidly evolving, and uncertain situation.

[00:02:11] Speaker 02:
But this case really just comes down to one issue, which is whether or not Detective Holzer

[00:02:21] Speaker 02:
reasonably perceived.

[00:02:24] Speaker 02:
Everyone agrees that he thought that the taser shot was a discharge of the firearm.

[00:02:31] Speaker 02:
Everyone agrees that.

[00:02:32] Speaker 02:
It's in the complaint.

[00:02:37] Speaker 02:
But the question is whether or not it was reasonable to have that belief in light of all of the circumstances.

[00:02:44] Speaker 02:
And we have to construe those circumstances

[00:02:48] Speaker 02:
that are alleged in the complaint and even if we accept the stipulation, we have to draw all inferences from those in the light most favorable to the plaintiff.

[00:02:59] Speaker 02:
So why isn't it triable issue that it was unreasonable to think that it was in fact a discharge of the firearm?

[00:03:15] Speaker 02:
by Mr. Assange because his back was turned, he didn't make a motion towards grabbing the firearm and, you know, he was with an earshot of hearing less lethal, less lethal.

[00:03:32] Speaker 00:
Well, thank you, Your Honor.

[00:03:33] Speaker 00:
So I think what we have to look at, and you referenced it, we have to look at the totality of the circumstances when we're considering whether the officer was faced with what he reasonably perceived to be a threat.

[00:03:44] Speaker 00:
And we're looking at not what actually turned out to be true, but what the officer knew at the time and what he reasonably may have perceived.

[00:03:51] Speaker 02:
It can't be that just any mistake of an officer believes something that's wrong, he wins qualified immunity.

[00:03:57] Speaker 02:
There are some mistakes that are so unreasonable

[00:04:00] Speaker 02:
that the officer doesn't win, correct?

[00:04:03] Speaker 00:
Correct.

[00:04:04] Speaker 00:
I think it depends on the totality of the circumstance.

[00:04:05] Speaker 02:
Then the question is where this is on that line, because it was a mistake, and everyone really, it was a mistake.

[00:04:12] Speaker 02:
He did not have the firearm.

[00:04:14] Speaker 02:
He did not discharge it.

[00:04:16] Speaker 02:
You know, in that sense, it was a

[00:04:19] Speaker 02:
You know, it was an error.

[00:04:21] Speaker 02:
And the question is whether or not his belief, everyone agrees he subjectively believed in good faith, believed that it had been discharged, but maybe that was just completely objectively unreasonable.

[00:04:37] Speaker 00:
Right.

[00:04:37] Speaker 00:
And I would submit that it's not.

[00:04:39] Speaker 00:
And I would submit that the undisputed facts, what we have here is we have law enforcement were called out to the scene because there was a domestic disturbance, which implies threatening or violent behavior before they even got there.

[00:04:51] Speaker 00:
As soon as law enforcement officers arrived, Mr. Assange grabbed a gun and then was told repeatedly to drop it and refused to do so repeatedly.

[00:04:59] Speaker 00:
He then proceeds to set up his phone to document what had turned out to be a standoff.

[00:05:04] Speaker 00:
And all of this is occurring within two minutes.

[00:05:07] Speaker 00:
Now, Detective Holzer is about 20 yards away.

[00:05:10] Speaker 00:
He can hear the request to drop the gun.

[00:05:14] Speaker 00:
I think he can hear Mr. Assange's response.

[00:05:17] Speaker 00:
The complaint does allege that Captain White spoke loudly enough for him to hear the less lethal, but there's no allegation that Detective Holzer actually heard the less lethal response or the less lethal instruction.

[00:05:29] Speaker 02:
But again, we have to draw the inferences.

[00:05:30] Speaker 02:
So if it was said loud enough for him to hear, the inference is that he did hear it.

[00:05:36] Speaker 00:
The inference could be yes the inferences that he heard it but that the taser from the time the less lethal command came to when the taser was actually deployed was 36 seconds.

[00:05:45] Speaker 02:
Now where does that precision come from?

[00:05:47] Speaker 02:
Were there any audio or video tapes of this incident?

[00:05:51] Speaker 02:
Yes there are.

[00:05:52] Speaker 02:
Okay.

[00:05:53] Speaker 02:
But they're not in the record of this because it's a 12-3.

[00:05:56] Speaker 02:
It's a 12-C motion.

[00:05:57] Speaker 02:
Right.

[00:05:58] Speaker 04:
You had a similar scenario here, but instead of the officer firing his taser, a kid, a neighbor lit some firecrackers and Officer Holzer thought it was, you know, that Mr. Assange had fired his gun and shot him.

[00:06:17] Speaker 04:
Would qualified immunity apply in that case?

[00:06:20] Speaker 00:
I think it would depend on the circumstances.

[00:06:22] Speaker 00:
I mean, what Detective Holzer knew was that he had an armed, non-compliant individual, and he heard the sound of what he perceived as gunfire coming from the direction of Assange and his fellow officer, Deputy Kraft, who was within five yards of Mr. Assange.

[00:06:39] Speaker 00:
And the complaint alleges, and we have to accept it as true, like you said, that

[00:06:44] Speaker 00:
Detective Holzer believed that deputy Kraft had been shot Again, he has a I think we have to look at the totality of the circumstances We have a two-minute encounter and we're saying that you think qualified humidity would apply if he mistook a firecracker nearby as gunshots

[00:07:00] Speaker 00:
I mean, I think it would probably depend on more facts.

[00:07:04] Speaker 00:
If the firecracker was behind him, then probably not.

[00:07:07] Speaker 00:
I think he heard a sound that clearly came from the direction of where this standoff was occurring.

[00:07:14] Speaker 00:
He couldn't see Mr. Assange's hands.

[00:07:16] Speaker 00:
He knew he had a gun, and he knew he was refusing to drop it and had been setting up his phone in what could have been an intention to escalate the situation and provoke a suicide by a law enforcement officer.

[00:07:29] Speaker 01:
Moving to the second prong of qualified immunity were there any cases that told detective Holzer You can't do this.

[00:07:38] Speaker 00:
It's a clearly established law that you can't do this No, and and I'm glad you brought that up judge fits water.

[00:07:44] Speaker 00:
I think there are actually cases that

[00:07:47] Speaker 00:
established the opposite and we spoke at length about the Casella case in our briefing and in that case we had a woman Hughes who was a suspect who was acting erratically and armed with a knife.

[00:08:00] Speaker 00:
Here we had Assange who was acting erratically intoxicated and armed with a gun, a far more deadly weapon.

[00:08:07] Speaker 00:
In Casella the officers asked the woman Hughes to drop the weapon and she refused.

[00:08:12] Speaker 02:
You agree that if Assange did not

[00:08:18] Speaker 02:
fire a weapon and the officer knew that he didn't fire a weapon, that this would be a bad shooting under the Fourth Amendment.

[00:08:28] Speaker 00:
If the officer knew that, oh, that Assange did not fire the weapon.

[00:08:33] Speaker 02:
If he knew it was the Taser.

[00:08:35] Speaker 00:
I would agree with that.

[00:08:36] Speaker 02:
He couldn't shoot him.

[00:08:37] Speaker 00:
Right, right.

[00:08:39] Speaker 02:
So it all comes down to the mistake of fact because everyone agrees that if

[00:08:47] Speaker 02:
his assessment of the situation was correct, the shooting was good.

[00:08:50] Speaker 02:
And if his assessment of the situation was wrong, but he knew that it was wrong, then the shooting is bad.

[00:08:59] Speaker 02:
So it just comes down to the reasonableness of his belief and what role that plays in each prong of the qualified immunity.

[00:09:08] Speaker 00:
Right, and I mean, I think the reasonableness does speak to the first prong.

[00:09:12] Speaker 00:
I think the second prong, which Judge Fitzwater brought up.

[00:09:14] Speaker 02:
So what do we make of the comment

[00:09:16] Speaker 02:
in Torres versus City of Madeira where we said, we drew this distinction between while the constitutional violation prong, prong one, concerns the reasonableness of the officer's mistake of fact, the clearly established prong, prong two,

[00:09:37] Speaker 02:
concerns the reasonableness of the officer's mistake of law.

[00:09:41] Speaker 02:
And then we later went on to say, thus for purposes of determining whether Officer Noriega, who was a defendant in that case, is entitled to qualified immunity under the second prom, we assume she correctly perceived all of the relevant facts and asked whether an officer would have reasonably believed at the time that the force actually used was lawful under the circumstances.

[00:10:05] Speaker 02:
That would seem to suggest that we have to look at what the actual facts were, but you would lose under the actual facts.

[00:10:14] Speaker 00:
Well, and I would disagree when we're talking about reasonableness and the perceived threat, because what speaks to reasonableness is whether the officer perceived a threat.

[00:10:24] Speaker 00:
It's not whether that actual threat turned out to be true.

[00:10:28] Speaker 00:
And so in that regard, that's why we have to look at the totality of the circumstances and we can't look at just the mistake in a vacuum.

[00:10:35] Speaker 00:
We have to see what did Detective Holzer knew?

[00:10:37] Speaker 00:
How long had this been going on?

[00:10:39] Speaker 00:
And that was instructive for the court.

[00:10:42] Speaker 00:
Casella as well because they noticed that this had been that she had been shot when they've been only there for a minute She was within five feet of a bystander She made no lunge or furtive movement at all and the officer shot her and were granted qualified immunity here We have very similar situation we have Mr.. Assants with a gun within five yards of Deputy Kraft and then we have what what detective holes are reasonably perceived as a gunshot and

[00:11:12] Speaker 00:
and he acted accordingly.

[00:11:13] Speaker 02:
Could a reasonable jury at Prong One conclude that it was objectively unreasonable to think that he had fired the shot, that Assange had fired the gun?

[00:11:29] Speaker 00:
I would submit no.

[00:11:31] Speaker 00:
I think if you have an armed individual, you can't see what's going on.

[00:11:35] Speaker 00:
Things are unfolding rapidly and uncertainly.

[00:11:39] Speaker 00:
it would be reasonable to assume.

[00:11:41] Speaker 00:
And the complaint itself alleges that this policy that law enforcement officers have to announce Taser, Taser, Taser before they fire a Taser someone.

[00:11:50] Speaker 02:
Which the complaint says was not done.

[00:11:52] Speaker 00:
Which the complaint says was not done, and it was not.

[00:11:54] Speaker 00:
Yeah, it was not done in this case.

[00:11:55] Speaker 00:
And the complaint acknowledges that that policy is in place to prevent mistakes like this from happening.

[00:12:02] Speaker 00:
So it acknowledges that a Taser can be mistaken for gunfire.

[00:12:06] Speaker 00:
It's not an unusual situation.

[00:12:09] Speaker 00:
So I think, you know, given the totality of the circumstances, it would not be reasonable for a jury to find that Detective Holzer acted unreasonably in response to what he perceived was a threat on his fellow law enforcement officer.

[00:12:20] Speaker 04:
Can you address our decision in George V. Morris, you know, somewhat similar fact pattern, a domestic incident, and in that case, I think the suspect even had a gun in his hand, and we seem to say you can't shoot a suspect unless there's some

[00:12:35] Speaker 04:
a threat in terms of, you know, a furtive movement, a verbal threat.

[00:12:40] Speaker 04:
And here, you know, Mr. Assange's back was turned.

[00:12:44] Speaker 04:
I don't think he had his gun.

[00:12:45] Speaker 04:
He either was in his holster or on the floor or on the table.

[00:12:53] Speaker 00:
Right.

[00:12:53] Speaker 00:
So I think in George,

[00:12:55] Speaker 00:
You're right.

[00:12:56] Speaker 00:
In that case, there was not a furtive movement, and the court found that significant.

[00:13:01] Speaker 00:
But they also found it significant that there were not other objective factors that justified the use of force in that case.

[00:13:08] Speaker 00:
And in this case, we would submit that there were.

[00:13:10] Speaker 00:
I would also remind you that in Casella, there was also no furtive movement by the suspect in that case.

[00:13:17] Speaker 00:
And the court deemed that the use of force was reasonable in that case.

[00:13:20] Speaker 04:
I think in those case, the weapon was in the suspect's hands, right?

[00:13:24] Speaker 00:
In Casella.

[00:13:26] Speaker 00:
Yeah.

[00:13:26] Speaker 00:
Yes.

[00:13:26] Speaker 00:
Yeah.

[00:13:27] Speaker 00:
She had a knife in her hand but was not wielding it.

[00:13:31] Speaker 00:
And the court still granted.

[00:13:32] Speaker 04:
Seems like it really comes down to the sound and whether that's reasonable.

[00:13:38] Speaker 04:
It goes to Judge Collins point of don't we have to assess the reasonableness and maybe we can't do that at this stage.

[00:13:45] Speaker 00:
I mean I think we can because the complaint itself alleges that that that is a reasonable

[00:13:52] Speaker 00:
or implies that that would be a reasonable response.

[00:13:55] Speaker 00:
And that's why they criticize Deputy Kraft, who's also a defendant in this action, for not announcing Taser, Taser, Taser.

[00:14:01] Speaker 00:
They sort of make the but for connection between Deputy Kraft's lack of announcement and Detective Holzer's actions.

[00:14:14] Speaker 00:
And I think I'm just about to my rebuttal time, so I will.

[00:14:16] Speaker 02:
All right.

[00:14:17] Speaker 02:
Thank you, counsel.

[00:14:18] Speaker 02:
We will hear next from Mr. Wagner.

[00:14:25] Speaker 03:
May it please the court, Nate Wagner, appearing on behalf of Mr. Assants.

[00:14:30] Speaker 03:
This is a 12C judgment on the pleadings motion.

[00:14:34] Speaker 03:
And under the relevant guidelines, the court is required to take the allegations of the complaint as true.

[00:14:42] Speaker 03:
And I think it's helpful to go back to what was alleged in the complaint.

[00:14:45] Speaker 03:
And at paragraph 42 of the complaint, it's alleged that Holzer admitted, after this incident played out,

[00:14:53] Speaker 03:
that he did not observe Assants holding a pistol in his hand prior to shooting him.

[00:14:58] Speaker 03:
That is deemed to be true.

[00:15:00] Speaker 03:
The complaint establishes that Tristan was not, in fact, holding a pistol in his hand at the time of the shot.

[00:15:05] Speaker 02:
So the complaint alleges that he had his back to the officers, correct?

[00:15:10] Speaker 03:
He was turned so that the bullet hit him in the shoulder and in the calf.

[00:15:15] Speaker 02:
But paragraph 42 doesn't say that

[00:15:19] Speaker 02:
Deputy Holster knew that he didn't have the gun.

[00:15:24] Speaker 03:
Well, it says he admitted he didn't see it.

[00:15:26] Speaker 02:
Admitted he didn't see it.

[00:15:27] Speaker 02:
Correct.

[00:15:29] Speaker 02:
But you said that he was backwards.

[00:15:31] Speaker 02:
But it also, the complaint says that

[00:15:36] Speaker 02:
Deputy Holzer shot Tristan based on his belief that Tristan had fired upon Deputy Kraft.

[00:15:42] Speaker 02:
So you're not contesting that he actually believed that he had shot.

[00:15:46] Speaker 02:
That's in the complaint.

[00:15:48] Speaker 03:
That's what he has stated.

[00:15:50] Speaker 02:
So you can't read, obviously, if he believed that Mr. Assange, and you've said in the complaint that Mr. Assange, that he believed

[00:16:01] Speaker 02:
that Mr. Assange had fired upon Deputy Kraft.

[00:16:04] Speaker 02:
If he actually believed that, and you've put that in the complaint, it's not a reasonable inference from paragraph 42 that he actually believed that he did not have the gun in the hand, since it is not possible to shoot someone with a gun without using your hands.

[00:16:20] Speaker 02:
That's not a reasonable inference from 42.

[00:16:21] Speaker 02:
He didn't see the gun in his hand.

[00:16:24] Speaker 02:
So that contributes to the reasonableness of the belief, but the belief was that he did have the gun in his hand and fired it.

[00:16:32] Speaker 02:
He didn't see it, but he believed it.

[00:16:34] Speaker 03:
Well, and your honor, we've taken what Mr. Holzer said after the shooting and tried to articulate that in the complaint to explain.

[00:16:44] Speaker 02:
You could have written in the complaint that you can test whether he really believed that.

[00:16:48] Speaker 02:
You could have done that, but you didn't.

[00:16:49] Speaker 02:
The complaint says what it says, and you have to take the good and the bad.

[00:16:52] Speaker 02:
And you've conceded in the complaint that he actually had the belief that Assange had fired the gun.

[00:16:59] Speaker 02:
It's mistaken.

[00:17:00] Speaker 02:
It's obviously mistaken in hindsight.

[00:17:02] Speaker 02:
And then the question is, was it reasonable?

[00:17:05] Speaker 02:
But you can't argue that Assange, I mean, that Deputy Holzer did not believe that Assange had the gun in his hand.

[00:17:13] Speaker 03:
Well, Your Honor, yes.

[00:17:14] Speaker 03:
The implication, obviously, is that it's an unreasonable belief.

[00:17:19] Speaker 03:
There's no objective basis for his belief.

[00:17:24] Speaker 02:
But why is that true?

[00:17:25] Speaker 02:
I mean, the complaint concedes that the sound of a taser

[00:17:30] Speaker 02:
can be mistaken for the sound of a firearm.

[00:17:35] Speaker 02:
Indeed, the complaint says that that's why you're supposed to shout taser, taser, taser.

[00:17:41] Speaker 02:
And the officer didn't do that.

[00:17:43] Speaker 02:
Did not say taser, taser, taser.

[00:17:45] Speaker 02:
The other officer said less lethal, less lethal.

[00:17:49] Speaker 02:
And then the other officer uses the taser but doesn't say taser, taser, taser.

[00:17:53] Speaker 02:
He hears a shot and within one second, Holzer fires.

[00:17:56] Speaker 02:
Because he hears it, there isn't the taser, taser, taser.

[00:17:59] Speaker 02:
He fires.

[00:18:01] Speaker 02:
You will allege that he's turned around, so we can't see the hands.

[00:18:05] Speaker 02:
Why isn't it objectively reasonable to think that was a shot from Assange?

[00:18:12] Speaker 03:
It's objectively unreasonable at this phase because of what's alleged in the complaint, which is that Mr. Holzer admitted he did not observe Assange holding a pistol in his hand prior to shooting him.

[00:18:23] Speaker 02:
And so when you take that... Do you have to see the gun in the hand

[00:18:30] Speaker 02:
Know or believe that it's been used to shoot.

[00:18:34] Speaker 02:
I mean if someone's be you know Behind a car and I'd see them go behind a car with a gun and then a bullet comes out the other side I don't see the hand, but it's reasonable to think that it's a gun if there was an allegation in the complaint your honor that says

[00:18:54] Speaker 03:
that Detective Holzer could not, was unable to see how Assange was holding the gun and we had to take that fact as true.

[00:19:02] Speaker 03:
then we may be able to get to a position of saying his belief was objectively reasonable.

[00:19:09] Speaker 03:
We don't have that in the complaint.

[00:19:11] Speaker 03:
The complaint does not say Detective Holzer couldn't see Tristan's hands.

[00:19:15] Speaker 03:
The complaint says Detective Holzer admitted not seeing a pistol fired or shooting him.

[00:19:20] Speaker 03:
The complaint says Tristan was not holding a gun.

[00:19:24] Speaker 02:
I don't think, given what you've conceded in the complaint, I don't think you can argue that

[00:19:32] Speaker 02:
because he didn't see it in his hand, he therefore did not believe it was in his hand because you conceded that he acted on that belief and had that belief.

[00:19:43] Speaker 03:
Sure, but this all presumes the unreasonableness of his explanation.

[00:19:47] Speaker 02:
Correct.

[00:19:48] Speaker 02:
That's right.

[00:19:48] Speaker 02:
This all comes down to everyone.

[00:19:51] Speaker 02:
He didn't have the gun.

[00:19:53] Speaker 02:
He didn't fire the gun.

[00:19:54] Speaker 02:
And in omniscience and hindsight, the shooting was bad.

[00:20:00] Speaker 02:
Everyone agrees that.

[00:20:01] Speaker 02:
I mean, counsel agreed that if he knew that he hadn't fired the gun, the shooting is flagrant violation of the Fourth Amendment.

[00:20:07] Speaker 02:
There'd be no qualified immunity.

[00:20:10] Speaker 02:
But if he did have the gun and he did fire it, the shooting is absolutely good.

[00:20:14] Speaker 02:
And so it really comes down to the reasonableness of his belief.

[00:20:19] Speaker 02:
Everyone agrees he thought it was the gun.

[00:20:21] Speaker 02:
And it's just, is there a triable issue on the reasonableness of the belief?

[00:20:25] Speaker 02:
And then how do we fit that into the qualified immunity?

[00:20:29] Speaker 03:
I agree 100 percent, Your Honor, and I think that the arguments made by Ms.

[00:20:34] Speaker 03:
Handelman and the argument that I'm making here today are arguments that should be presented to a jury in closing.

[00:20:39] Speaker 03:
This is a case that determination of reasonableness is a fact question for the jury based on the evidence that comes out at trial.

[00:20:48] Speaker 02:
So tell me your best arguments as to why it's objectively unreasonable to have thought that he fired the gun.

[00:20:54] Speaker 03:
It's objectively unreasonable under the facts alleged in the complaint, because at no point was Tristan holding the weapon in a way that was a threat to any officer.

[00:21:03] Speaker 03:
He was not reaching for the pistol when he was shot by Holzer.

[00:21:07] Speaker 03:
At no time after the arrival of law enforcement did Assange point a pistol at any officer or bystander.

[00:21:13] Speaker 03:
And so given that all those facts have to be deemed to be true, that he was not holding a gun, and that Mr. Holzer admitted that he didn't see him holding a gun,

[00:21:24] Speaker 03:
then the fact question of whether it was reasonable for him to have concluded that a gun somehow manifested in his hand and fired at a fellow officer, whether that's a reasonable belief.

[00:21:37] Speaker 02:
We contend that it's not, that's a fact question.

[00:21:41] Speaker 02:
loud noise, it couldn't have been a son's.

[00:21:43] Speaker 03:
Correct.

[00:21:44] Speaker 03:
And, you know, there's the car backfiring case.

[00:21:47] Speaker 03:
There's a couple of cases that talk about loud noises.

[00:21:50] Speaker 03:
And in those cases, you have a situation where I didn't go deep into the pleadings of those cases, but I believe the facts demonstrate that the reason that it was reasonable for an officer to conclude that that shot had been fired is because there wasn't obvious alternative proof that it couldn't have been the suspect shooting as there is here, as what has to be taken as true in the complaint.

[00:22:11] Speaker 04:
Can you address the second prong of qualified immunity?

[00:22:18] Speaker 04:
What's your best case to show the right was clearly established?

[00:22:21] Speaker 03:
I think the case relied on by the district court in the Dural v. Rutherford case is very solid on that point, Your Honor.

[00:22:29] Speaker 02:
And then the Kernel v. Ridgecrest case, which I think the interesting part about that case is... The Supreme Court has specifically chastised us for repeatedly overriding Dural.

[00:22:41] Speaker 03:
Yes, but I think that this is not a case would be over reliance on the kernel case that in kernel you've got an officer you've got a person who is holding a firearm but not using it in any way and in the Dior case you've got an armed person I think that

[00:23:03] Speaker 03:
There's a laundry list of cases where the courts have repeatedly stated that the mere presence of a weapon, even a firearm, is not justification for shooting.

[00:23:14] Speaker 03:
And it's been clearly established that that firearm has to be used in a threatening manner.

[00:23:18] Speaker 03:
There has to be the, you know, the furtive gesture, the weapon being pointed, the weapon being brandished.

[00:23:23] Speaker 02:
So for purposes of applying the law at Prong 2, do we

[00:23:32] Speaker 02:
take the facts as the officer believed them to be or as the officer should have believed them to be because his belief was objectively unreasonable?

[00:23:49] Speaker 03:
I think that the case laws talks about we assume the officer correctly perceived.

[00:23:57] Speaker 02:
So there's no room we

[00:24:00] Speaker 03:
it's that harsh we overlook even reasonable errors and we we charge them with omniscience and they stand or fall on that i don't know how to interpret that sentence in that where it says we assume the officer correctly perceived does that mean torres that i quoted before yes yes your honor does that mean we take the officers perception at face value or does that mean we assume the officer

[00:24:28] Speaker 03:
for the purposes of this analysis, actually perceive things correctly.

[00:24:33] Speaker 03:
My interpretation is the latter, that when you're talking about the law, the officers are charged with understanding the law and need to correctly assess the situation and can't escape the consequences of violation of a person's Fourth Amendment rights merely by saying, I made an unreasonable mistake and therefore I'm immune.

[00:24:59] Speaker 03:
Appellant also takes issue with the district court's decision to decline to consider the statement of stipulated facts.

[00:25:08] Speaker 03:
And I think the district court is within its rights to confine its analysis to what's in the complaint.

[00:25:16] Speaker 02:
Well, but we've said that judicially noticeable material can be considered on a 12b6 or 12c.

[00:25:24] Speaker 02:
And I mean, if you've actually stipulated to the facts,

[00:25:28] Speaker 02:
Isn't that subject to judicial notice?

[00:25:31] Speaker 03:
It could be.

[00:25:32] Speaker 03:
I don't know that it's mandatory.

[00:25:34] Speaker 02:
Because it's kind of weird.

[00:25:36] Speaker 02:
We would normally say, well, you know, we can't address that issue because there has to be a trial on that point.

[00:25:46] Speaker 02:
Kind of makes no sense here because it's not going to be a trial on that point because you all signed a stipulation Saying what the fact was and so it's kind of surreal for the district court to actually rely on the fact Well, maybe he put it on the ground you've all stipulated.

[00:25:58] Speaker 02:
He didn't put it on the ground He put it in his way, so it seems very odd to ignore it Yeah, your honor

[00:26:07] Speaker 03:
We feel this is harmless error at worst, doesn't change the analysis.

[00:26:10] Speaker 03:
If a stipulated fact is that the gun was in his waistband, I don't know how that supports Holster's idea that that gun was fired.

[00:26:16] Speaker 02:
Well, it certainly makes a difference in the following sense in that if his back is turned, if it's on the ground, to make the shot, he'd have to bend over to retrieve the gun before he could be the source of the loud noise.

[00:26:33] Speaker 02:
And since nobody said he bent over,

[00:26:36] Speaker 02:
that would be objectively unreasonable to think he was the source of the shot.

[00:26:42] Speaker 02:
But if it's in his waistband and his back is turned, it could be in his hand.

[00:26:46] Speaker 02:
You wouldn't see it, and so maybe it's reasonable.

[00:26:49] Speaker 02:
So it actually maybe does make a difference.

[00:26:51] Speaker 03:
Well, Your Honor, here's why I think it does not.

[00:26:54] Speaker 03:
I don't think there's anywhere in the complaint or in the statement of stipulated facts where we have alleged that Detective Holzer could not see Tristan's hands and therefore it was reasonable for him to think there could have been a firearm in his hands.

[00:27:07] Speaker 03:
In other words, drawing the inferences in our favor, as was alleged in the complaint, there is nothing that establishes a fact that says Detective Holzer could not see Tristan's hands.

[00:27:16] Speaker 03:
Having his back turned, I can demonstrate for the court that I could easily turn my back and you could still see my hands.

[00:27:22] Speaker 03:
And so at this phase, I think that's a fact issue that can't be resolved.

[00:27:30] Speaker 03:
Have I addressed the court's concerns?

[00:27:32] Speaker 03:
Yes, you may proceed.

[00:27:34] Speaker 03:
I don't have anything further to offer.

[00:27:35] Speaker 03:
This is a qualified immunity case.

[00:27:39] Speaker 03:
It is a case that it's clearly established that Detective Holster would have to have reasonably perceived that Tristan posed a threat.

[00:27:48] Speaker 03:
And at this phase, that's not something that can be established by an allegation, a pleading, or a statement of stipulated facts were the court to consume that the district court should have considered the statement of stipulated facts.

[00:27:58] Speaker 01:
What about the assertion that mr.. Assange during this whole time is saying things like kill me kill me I love my kids no one has talked about that in this argument it seems to me that that enters into what was reasonable for detective us also to be thinking about your honor the the

[00:28:21] Speaker 03:
issue of a person having a mental health crisis while interacting with law enforcement actually weighs in favor of the victim of the shooting.

[00:28:29] Speaker 03:
And that's established, I think, in the DeOral versus Rutherford case that was cited by the district court.

[00:28:35] Speaker 03:
uh... mentally and emotionally disturbed person is is uh... is is deemed to to be kind of more at risk of not understanding the situation and they're needing to be uh... a warning given for example and there's no warning given in this case and and the court in the dioral case uh... noted that a person who's in mental crisis is is not going to understand that they might be at risk of being shot what about the other side that it might make it more reasonable that uh...

[00:29:06] Speaker 03:
detective holster thought the shot had come from a science because that's the way he was acting well he he wasn't threatening anyone he was saying kill me to the officers uh... but he was not threatening anyone else wasn't threatening any officer wasn't articulating by word or act that he wanted to harm anyone and i see i'm out of time it shows that's fine okay uh... the uh... but i mean that's my question okay

[00:29:33] Speaker 01:
All right.

[00:29:34] Speaker 02:
Thank you, Council.

[00:29:35] Speaker 03:
Thank you.

[00:29:35] Speaker 02:
All right.

[00:29:35] Speaker 02:
We'll hear rebuttal now.

[00:29:42] Speaker 00:
Your Honours, I'd like to address the clearly established law prong a little bit further.

[00:29:48] Speaker 00:
and remind this court that this constitution or qualified immunity can be granted solely on this prong if the court has trouble with the first prong of the analysis.

[00:29:58] Speaker 00:
And that was done in O'Donnell B. Sanford.

[00:30:01] Speaker 00:
And I also want to remind the court that it is Assange's burden to prove that the right was clearly established.

[00:30:07] Speaker 00:
And I would submit that Mr. Assange has not got his burden here.

[00:30:10] Speaker 02:
But what facts do we take for purposes of prong two?

[00:30:17] Speaker 02:
he subjectively believed, or if we conclude that a trier effect could find that his subjective belief was objectively unreasonable, the belief that he should have had.

[00:30:31] Speaker 00:
I think it's what he reasonably perceived.

[00:30:34] Speaker 02:
I don't think you can... You do agree with the reasonable overlay, that if his subjective belief was objectively unreasonable, it isn't what gets plugged into

[00:30:44] Speaker 02:
So in other words, you can't just have any belief that you want and you skate.

[00:30:49] Speaker 02:
There is some restraint.

[00:30:51] Speaker 00:
Right.

[00:30:51] Speaker 00:
And I think, yes, with respect to the mistake for the Taser and the gunfire, I think the circumstances leading up to it are also... If it was wholly unreasonable, then we wouldn't take that as the facts for purposes of Prong 2.

[00:31:05] Speaker 00:
Yes, and I think in that case it would be one of those obvious cases where generalities would probably suffice You know you'd be able to look at generalities from Graham or any of those other cases But in this case we have a very unique set of circumstances and in this case Specificity is required in order to prove that detective Holzer should have been aware that his conduct was violative of a constitutional right based on

[00:31:29] Speaker 00:
the perception that he had at the time that his conduct arose.

[00:31:33] Speaker 00:
I want to talk about Dioral.

[00:31:35] Speaker 00:
Mr. Wagner mentioned that Dioral involved a mentally ill individual.

[00:31:41] Speaker 00:
They were investigating Assange for a domestic disturbance, and he was intoxicated.

[00:31:46] Speaker 00:
This was not the same as a welfare check.

[00:31:48] Speaker 00:
I see that I'm out of time.

[00:31:50] Speaker 02:
So right.

[00:31:50] Speaker 02:
I'll give you a few more seconds.

[00:31:51] Speaker 00:
OK.

[00:31:51] Speaker 00:
This was not the same as a welfare check.

[00:31:54] Speaker 00:
Dioral was physically compliant with the officer's instructions.

[00:31:58] Speaker 00:
You know, he pulled away a board at one point and threatened off, you know, held it up above his head.

[00:32:02] Speaker 00:
They told him to drop it.

[00:32:03] Speaker 00:
He dropped it.

[00:32:04] Speaker 00:
He had a toy crossbow.

[00:32:05] Speaker 00:
They told him to drop it.

[00:32:06] Speaker 00:
He dropped it.

[00:32:08] Speaker 00:
So this is the complete opposite of Assange, who refused multiple requests to drop the gun.

[00:32:13] Speaker 00:
Okay.

[00:32:14] Speaker 00:
All right.

[00:32:14] Speaker 00:
Thank you, counsel.

[00:32:15] Speaker 02:
All right.

[00:32:16] Speaker 02:
The case just argued will be submitted and the court will stand in recess for five minutes.

[00:32:26] Speaker 00:
All rise.