[00:00:06] Speaker 06:
Next on calendar is case number 25-2885, Dustin Dean versus City of Tacoma et al.

[00:00:50] Speaker 04:
May it please the court. Good morning. My name is Richard Jolly. I represent defendant Timothy Rankin, and I'm going to cede or want to reserve three minutes for rebuttal and also cede two minutes of time to the city of Tacoma's representative, Ms. Yoder.

[00:01:13] Speaker 04:
We would submit to the court that there are certainly facts that are in dispute in this case.

[00:01:19] Speaker 04:
But the facts that are germane or material to the qualified immunity analysis are not in dispute. They don't require the court to discount Mr. Dean's version of events, and the court should reverse the trial court's denial of qualified immunity to Timothy Rankin.

[00:01:39] Speaker 04:
The first of those undisputed facts that is highly germane to the issues here is that the officers were responding to a domestic violence call.

[00:01:49] Speaker 04:
The second undisputed fact is that what was reported to the officers by the person who let the officers into the building, and just as a reminder to the court regarding the factual context, after the initial 911 call comes in, the officers go to the scene. There's a secure apartment building. A second 911 caller had also called in reporting the disturbance. He let the officers into the secured building. And it's undisputed that what was communicated to the officers at that time is that the disturbance had been going on for quite some time and that the man had heard the woman repeatedly yelling for help.

[00:02:33] Speaker 04:
And that is at ER 553.

[00:02:37] Speaker 04:
We also know that it's undisputed that domestic violence calls in general are highly volatile, they're unpredictable, they're explosive, they're dangerous. And evidence of that can actually be seen on the video from this case where not only are the officers dealing with Mr. Dean, but they're also dealing with Mr. Dean's, for lack of a better term, his loved ones. His girlfriend's daughter is actually in Officer Rankin's space. You can see that she's easily within arm's length of both his firearm and his taser while all of this is going on.

[00:03:13] Speaker 04:
And it's undisputed that when Mr. Dean comes to the door of the apartment and the officers make physical contact with him, they begin by telling him to put his hands behind his back. He admits that he refused to do so and responds instead with muscular tension, as he phrases it, to keep them from accomplishing the task of getting him handcuffed. And that's at ER 555.

[00:03:37] Speaker 02:
So is it your view at that moment that the officers were arresting him or detaining him for an investigatory

[00:03:45] Speaker 04:
We would submit it to the court at that juncture when they are first initially attempting to handcuff him that it's merely an investigative detention. And if you look at the case law that governs that and we cited to Washington versus Lambert, there's excuse me, there's special circumstances that are set forth that permit an investigative stop to use more intrusive means like handcuffing. if certain factors are involved, and it doesn't automatically convert into an arrest.

[00:04:17] Speaker 04:
And one of those factors is, quote, where the stop closely follows a violent crime.

[00:04:25] Speaker 04:
Excuse me, I'm sorry.

[00:04:27] Speaker 04:
And here, what the officers are dealing with is that they know, based on what the information that was provided by the man that let them in the building, that this woman was yelling for help. And it's a logical conclusion for them to draw, that the person she needs help from is in fact Mr. Dean. So we would submit to the court that that special circumstance where the stop or the contact closely follows a violent crime is applicable here and that the officers were permitted to handcuff Mr. Dean and it didn't automatically become an arrest.

[00:05:02] Speaker 00:
But going back to the- Isn't they also dragging down the stairs?

[00:05:09] Speaker 04:
At some point, Your Honor, although I would disagree with the court's characterization, I think that the trial court's order— Pull him down, escort him down, you use the— They're wrestling with him on the stairs, and there's no doubt that he wants— And they go down at least one flight. Yes, yes, no doubt about that.

[00:05:28] Speaker 00:
And he's struggling.

[00:05:29] Speaker 04:
He's struggling. He's hanging on to the railing. And the trial court discounted the opinions— of Mr. Dean's own expert, the former city of Seattle police chief, James Pugel, where Mr. Pugel said that the initial detention was reasonable. And he did couch it in terms of a conclusory statement that it was constitutional. But he said that it was reasonable and constitutional to initially want to handcuff Mr. Dean so that the officers could safely investigate the incident that they were responding to.

[00:06:09] Speaker 04:
And then, of course, once Mr. Dean resists, will they have probable cause to arrest him? And then I would submit to the court at that juncture, it simply becomes a graham factor analysis.

[00:06:21] Speaker 06:
Counsel, before Dean began resisting, however, the moment in time when the officers first arrive at the apartment, we are to construe the facts in the light most favorable to Dean in this posture.

[00:06:36] Speaker 06:
And so we've got varying accounts. Dean says he comes out peacefully, he's unarmed, and one of the officers testifies that he comes out of the apartment slowly. The other officer gives a slightly different account, right, and says that Dean comes with a bladed stance and is approached in a threatening manner. And so if Dean is not – if we were to credit Dean's – which I think we're supposed to do at this stage.

[00:07:10] Speaker 06:
There's no threat at that moment, right? And so what would justify the arrest?

[00:07:16] Speaker 04:
We would submit to the court that because when Mr. Dean first steps out of the apartment, the officers have not had an opportunity to pat him down. It's true that his hands are empty. We would disagree with the trial court's characterization that the officers knew at that juncture that he was unarmed. Rather, it's just that his hands were empty. They didn't see a weapon. But we would submit that they can still handcuff him to conduct a Terry stop, an investigative detention, because of what they were hearing or what was the information that was relayed to them at that juncture.

[00:07:54] Speaker 00:
The information was a potentially violent confrontation between two individuals, and they're trying to separate them.

[00:08:03] Speaker 04:
That's correct, Your Honor. And they know from the 911 caller's information that it's a woman yelling for help and that it's a white male, and I believe it said that he was wearing a white shirt, and that's Mr. Dean as he comes out of the apartment.

[00:08:18] Speaker 02:
The officers heard her screaming through the door as they approached. Did they not help, get away from me, leave me alone?

[00:08:26] Speaker 04:
They did, Your Honor, and I didn't highlight that because I think that the position from Mr. Dean is – that because Vanessa Enriquez submitted competing declarations about what she actually said, the content of what she was yelling, I didn't want to get into that. But it is undisputed that the officers hear sounds coming from the apartment that are consistent with a domestic violence-type disturbance.

[00:08:53] Speaker 04:
Ms. Enriquez has submitted two competing declarations. That's true. And we would submit to the court that the trial court erred by concluding that Nelson v. City of Davis and Smith v. City of Hemet, that those cases clearly established that the officers could not initially handcuff Mr. Dean. We would submit that neither one of those cases, when viewed in light of the specifics and rather than just a general overview, when viewed in light of the specific parameters that are required to inform officers whether qualified immunity applies, we would submit that neither one of those cases is really dealing with what the officers are dealing with here.

[00:09:41] Speaker 04:
Nelson, it's a college party at UC Davis, and there's a bunch of kids that are drinking, and they refuse to disperse, and the officers go from zero to 100 immediately, and they shoot Mr. Nelson with a projectile. That has no bearing on the case here.

[00:09:57] Speaker 00:
I ask a quick question. Is he on a 13 minute clock? Okay. I didn't want to interfere with your co-counsel.

[00:10:05] Speaker 04:
So I've got four minutes and then she's okay.

[00:10:07] Speaker 00:
Yes.

[00:10:09] Speaker 04:
And then with Smith v. City of Hemet, it's a very, it is a domestic violence call, but it's a very different set of circumstances. And I would highlight for the court that one very large distinction is that in Smith v. the officers and the 911 dispatcher actually had talked to the victim, and the victim had conveyed that she was apparently doing okay and that he wasn't armed. And then Mr. Smith is waiting for them outside the door with his hands in his pocket.

[00:10:43] Speaker 04:
Here, the officers had not had an opportunity to confirm one way or the other what was going on with the victim. And likewise, the officer's force application here to begin with is just simply to handcuff Mr. Dean, whereas in Smith v. Hemet, they immediately use projectile weapons because he won't take his hands out of his pocket, and then ultimately there's a canine application, and we think those are huge distinctions. But what we would like, what we'd submit to the court is that even if it was clearly established here that they couldn't initially handcuff Mr. Dean, the fact that plaintiff's own expert The former Seattle City Police Chief said that it was okay, that it was reasonable, that it was constitutional here.

[00:11:28] Speaker 04:
If a former police chief of a large municipal police department thinks it's okay, how would there be a robust consensus that was available to line-level officers in Tacoma, like Officer Ford and Officer Rankin, that they could not handcuff Mr. Dean here? And then finally, what I would like to raise with the courts. is the fact that the trial court discounted the physical context of where this incident was going on, that they're fighting on a third floor railing, and the officers were concerned about being pitched over the railing.

[00:12:04] Speaker 04:
Not only they get injured, but Mr. Dean gets injured. And the court basically said, well, I'm not going to consider that because the officers initiated the struggle. implying that the initial contact was unconstitutional and they brought it on themselves. And while the court doesn't overtly reference the provocation doctrine, it certainly appears that it was applied in that fashion here. And that goes back to the now discredited provocation doctrine in the ruling in Mendez versus County of Los Angeles, where previously in the Ninth Circuit, it was recognized that even if a force application was reasonable, that if the officers provoked it through some unconstitutional action, through some tactical mistake, that if they provoked the situation that required the use of force that was under consideration, that that would preclude an extension of qualified immunity.

[00:13:02] Speaker 00:
Do you want to save some time for rebuttal?

[00:13:05] Speaker 04:
I'm going to quit now, Your Honor. Thank you.

[00:13:08] Speaker 00:
That's not a directive. It was just a question.

[00:13:10] Speaker 03:
Thank you.

[00:13:15] Speaker 00:
Sorry.

[00:13:23] Speaker 01:
May it please the court, Michelle Yoder, on behalf of appellant Officer Mazai Ford. For the purpose of this appeal, Officer Ford accepts the facts as asserted by Dean. This case should be reversed for two independent legal reasons. First, using only Dean's account of the facts, the district court misapplied Graham. It did so in a couple of ways already addressed by Mr. Jolly. in that it discounted Mr. Dean's testimony that within the first 30 seconds of the contact with these officers, he came out of his apartment. The officers told him he was under arrest.

[00:13:55] Speaker 01:
They told him to put his hands behind his back, and he refused to do so, using muscle tension to thwart the efforts of the officers. Under an objectively reasonable officer standard, that is active resistance, and the court disregarded that. Second, as Mr. Jolly just mentioned, the court also refused to to even consider the fact that this struggle was occurring on a third floor, small third floor balcony.

[00:14:21] Speaker 01:
Moving beyond that, the court further, with regard to Officer Ford, wholly ignored Chief Pugil's testimony that Officer Ford's use of force at no time was excessive. Chief Pugil unequivocally testified that the force used by Officer Ford individually at all times was reasonable.

[00:14:42] Speaker 00:
Did the officers pull his hair?

[00:14:45] Speaker 01:
Officer Ford did briefly use a hair hold. Yes, that is correct. The court second, even if the constitutional issue was a close one here, which I would submit to you when Graham is correctly applied, it is not. Smith and Nelson do not come close to clearly establishing that Officer Ford's conduct was unlawful. Here, Officer Ford used only open hand Control tactics, a brief hair hold and some grappling with Mr. Dean's feet. Those are the only accusations asserted by Dean against Officer Ford.

[00:15:19] Speaker 01:
Officer Ford's conduct must be individually assessed. And under neither Smith nor Nelson does Officer Ford's conduct even come close to the law that's established with those two cases.

[00:15:33] Speaker 06:
Counsel, what about the other officer in the initial detention of Dean? Can you talk about whether qualified immunity should apply there, too?

[00:15:41] Speaker 01:
I believe qualified immunity applies to both officers. I do represent Officer Ford and Mr. Jolly represents Rankin. But I think especially looking at the second prong of qualified immunity, neither Smith nor Nelson can possibly place the conduct of these officers beyond debate. They are so factually dissimilar. Under the Supreme Court's direction, they must be rendered moot. As a result of the errors of the trial court, Officer Ford was denied the immunity he was entitled to. And this court should reverse.

[00:16:09] Speaker 05:
Thank you, counsel.

[00:16:38] Speaker 03:
Good morning. May it please the court. My name is Matthew Erickson, and I represent the plaintiff at Pelley, Dustin Dean, in this case.

[00:16:45] Speaker 03:
Obviously, this is an interlocutory appeal of a denial of qualified immunity, so we must assume the version of material of facts asserted by my client is correct. That's important here because obviously we do have a cell phone video. It's three minutes, 43 seconds long that shows the actual arrest, but what precipitated that, what initiated the initial contact from my client and the officer is is not on video.

[00:17:09] Speaker 00:
Let's assume that the panel were, this is hypothetical, the panel were to agree with your position that his Fourth Amendment rights may have been violated or that a reasonable jury could conclude that they were. What's your best argument or best case for clearly established? Because as I understand the law in this area, if you can't meet that prong, it doesn't matter what happened before.

[00:17:39] Speaker 03:
I appreciate that question, Judge Hawkins. I believe one of the best cases on this issue would be Valenzuela v. City of Anaheim. The site I have for that is 2021 US App Lexis 22933. That's a 2021 case of this court. It's a materially similar case holding that at the time of a 2016 incident, In California, the police officers... That's an opinion?

[00:18:10] Speaker 03:
Yes. Yes, sir.

[00:18:12] Speaker 03:
Quoting briefly from that opinion, it reads, here, Anaheim police officers kept Valenzuela in multiple extended chokeholds, even as he gagged, wheezed, turned purple, and screamed that he could not breathe, behavior we have previously identified as severe force capable of causing death or serious injury.

[00:18:32] Speaker 02:
Was the chokehold, though, in this case much briefer than that? There was a temporary...

[00:18:37] Speaker 02:
He called it a seatbelt hold when Ransin tried to pull Mr. Dean off the rail, and he kept commanding him to let go of the rail. Meanwhile, you see a hand. I don't know whose hand it is, but it's not Mr. Dean's, and it's not the officer's. He's swatting at the officer on the upper level as he's trying to pull his hand off the rail and also grab him across the chest.

[00:19:08] Speaker 02:
And is that a chokehold or a seatbelt hold or some other sort of hold that officers reasonably can use to try to subdue somebody who they're trying to arrest?

[00:19:18] Speaker 03:
Thank you, Judge Matsumoto. I believe the video evidence speaks for itself. I think the video evidence from our perspective, viewing the evidence in the light, most feral plaintiff shows two chokeholds or neck restraints. I don't think the semantics matter a whole lot, but two chokeholds or neck restraints where my client is being choked by Officer Rankin, as far as the officer's justification or explanation, as far as whether he's trying to do a seatbelt hold or something else, I think that helps elucidate that this is a jury issue because at his deposition, he denied that he even had an arm around my client's neck.

[00:20:03] Speaker 02:
Was it clearly established, though, that that kind of police violence hold or attempt to subdue a perpetrator was clearly illegal and unconstitutional. Was that clear?

[00:20:17] Speaker 03:
I think so, Judge. Again, I think Valenzuela v. City of Anaheim, a 2021 case of this court, I think that's probably the best case.

[00:20:27] Speaker 03:
Supporting my client's position, other cases I think that are positive for My client and support the district court's denial of qualified immunity on the clearly established point would be Hunter v. City of Federal Way. That's a 2020 decision of this court. That affirmed at the time of the 2014 incident here in the state of Washington, police officers' use of a chokehold on a suspect violated the Fourth Amendment.

[00:20:53] Speaker 03:
Quoting briefly from that case, it reads, the Fourth Amendment right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established prior to 2008.

[00:21:06] Speaker 03:
Construing all evidence in favor of the verdict as we must, Hunter did not offer even passive resistance. When Durrell pushed him against the corridor and put hardest arms against his back for choking him, nor did he resist as being choked. We have characterized as serious, that is non-trivial, any force that is capable of causing death or serious injury.

[00:21:27] Speaker 03:
Other cases that I point to on the clearly established question, which obviously is perhaps the most important question. I know that the Supreme Court has been very clear that we want cases as close as possible on the point where we're discussing this issue of clearly established and qualified immunity.

[00:21:45] Speaker 02:
Smith is so distinct, though. Wouldn't you agree on the facts?

[00:21:49] Speaker 02:
They go to the site knowing from the wife that there are no weapons. The officers in this case didn't know. whether they're weapons, and they used force that was found to be unreasonable because on multiple occasions after they had Mr. Smith somewhat subdued, they pepper sprayed him, I think, two or three times and applied canine attacks two or three times.

[00:22:17] Speaker 02:
There was, I don't know what force other than the wrestling and the chokeholds the hair hold and the pulling by the feet, what force they used, and how that is similar at all to what happened in Smith. But my next question for you is, what force should the officers have applied? What would have been appropriate in your view of the case and the law?

[00:22:45] Speaker 03:
Thank you, Judge. I mean, from my perspective, viewing the evidence in light most favorable to the plaintiff, as we must at this stage of the proceedings, at the beginning of these incidents, my client is unarmed, he has not actually committed any crime, and he's not obstructing the officers in any investigation at the time they forcibly put hands on him, and he's zero threat to the officers because he actually has his back turned to them as he's trying to close the door.

[00:23:16] Speaker 03:
So I think based on those facts, unarmed, has not committed a crime, is not obstructing an investigation, is zero threat to them, that would point to any significant force.

[00:23:30] Speaker 00:
Your description sounds like your argument is that he was passive.

[00:23:38] Speaker 00:
Yes. Would that accurately describe his behavior?

[00:23:44] Speaker 03:
I think so, Judge.

[00:23:45] Speaker 00:
Ever hold his hands up?

[00:23:48] Speaker 03:
I don't think he had the opportunity to.

[00:23:50] Speaker 00:
The answer to my question is no, he did not.

[00:23:55] Speaker 03:
That is correct, Judge Hawkins, yes. The answer to that question is correct.

[00:24:00] Speaker 03:
And again, I think that is a point of the ultimate Fourth Amendment reasonableness inquiry that a jury can look at about whether that's reasonable and whether when my client is holding onto this banister that we see on the video as two officers are trying to choke him and drag him down the stairs, whether he's trying to resist arrest, whether he's trying to evade arrest, or whether he's just trying to keep himself from being injured.

[00:24:27] Speaker 03:
Because it just seems logical to me that if you're in that situation and the officers haven't given you any explanation why they're there and they're dragging down the stairs, if he just lets go, he's going to face plant right on the stairs and suffer a serious head injury. So again, I don't think he's, it's not a case where, and obviously it's important in the Graham analysis, it's not a case where he's trying to escape or evade arrest. We hear him on the video

[00:24:54] Speaker 02:
calling for... You say he's not evading arrest at that point?

[00:25:00] Speaker 02:
By resisting and grasping the rail?

[00:25:04] Speaker 03:
I think the district court correctly decided that was passive resistance. And if what we see on the video is passive resistance, I think the officer's non-trivial force that they used...

[00:25:18] Speaker 03:
it exceeds that allowed by the Fourth Amendment. And if nothing else, it is a jury issue. There are so many questions of fact in this case.

[00:25:26] Speaker 03:
It is not a good candidate for summary adjudication.

[00:25:30] Speaker 03:
There is credibility issues galore and a jury ultimately, as the court has said many times, excessive force typically are not good candidates for summary judgment because the reasonable inquiry is often appropriate for a jury, and there are so many credibility issues. And we see that, I think, particularly in this case, where, again, we don't just have two police officers telling different stories, and my client and the female witness, his girlfriend at the time, but even some of those people are telling different stories at different times.

[00:26:03] Speaker 03:
We see that with the girlfriend.

[00:26:04] Speaker 06:
But I don't mean to cut you off here, but you need a win on prong two of qualified immunity. And I think the panel is focused on that. And you pointed to the Valenzuela case, which I don't think you cited in your brief, but I just read the facts now. It seems, as Judge Matsumoto pointed out, very, very different.

[00:26:23] Speaker 06:
There were multiple chokeholds applied. Valenzuela turned purple, screamed, I can't breathe, help me. The officer then tased Valenzuela. Officer chased Valenzuela, pulling him to the ground. Officers repeatedly tased Valenzuela, who begged for them to stop it. More chokeholds.

[00:26:43] Speaker 06:
gasping for air, and ultimately Valenzuela fell into a coma and died eight days later in a hospital. Is that remotely what happened here in this case?

[00:26:57] Speaker 03:
Thank you, Judge Chuck. It is more severe, obviously. Obviously, we would concede that. But from plaintiff's perspective, what's important there is it is a case where specifically this court was noting that multiple chokeholds where there's evidence that someone's breathing is being cut off, is a significant use of force, a severe use of force.

[00:27:21] Speaker 06:
And, Counsel, you also cited Hunter, but that case is unpublished, right?

[00:27:27] Speaker 03:
That is correct, sir, yes. That is an unpublished case from 2020. If I still have a couple minutes as far as, again, to speak, A question of clearly established, I think the most oft-cited case from this circuit on the chokehold issue is Tua Maumaubeleo v. Green, a 2009 case, which held at the time of the 2014 incident in the state of Nevada. The police officer's use of a chokehold on a suspect violated the Fourth Amendment.

[00:28:02] Speaker 03:
And one other case that I think is probably worth looking at is Bernard v. Theobald, a 2013 case of this court. That deals, that stands for the proposition at the time of a 2001 incident in Nevada. Police officers' actions using a chokehold on a suspect violated the Fourth Amendment. Obviously, none of these cases are 100 percent apples to apples comparisons. I don't think that is precisely what's required by the qualified immunity analysis.

[00:28:37] Speaker 03:
And I think we have to look at, based on Supreme Court precedent, including a Barnes v. Felix, a 2025 case of the US Supreme Court, we look at the totality of the circumstances. So in this case, again, I think we have to look at the beginning of the incident. How did this all start? Where again, from plaintiff's perspective, viewing the evidence as we should at this stage in the proceedings, he's unarmed, has not committed a crime, is not a threat.

[00:29:05] Speaker 03:
and has not obstructed any investigation because they haven't given him any commands or orders to obey or not obey. So under those circumstances, again, I don't think you have to rise to the level of tasing someone multiple times or, you know, sticking a police dog on them to violate the Fourth Amendment.

[00:29:22] Speaker 03:
Under those circumstances, I think this level of force where you're not giving a person any opportunity to comply before you put your hands on them I think that violates the Fourth Amendment at the outset of the incident.

[00:29:38] Speaker 02:
I think the Barnard v. Thiebaud court recognized that police officers who confront actual or perceived resistance are only permitted to use an amount of force that is reasonable to overcome that resistance.

[00:29:54] Speaker 02:
So we do have resistance here. The used force and your contention is there. That the amount of force was not reasonable under the circumstances.

[00:30:05] Speaker 03:
Correct.

[00:30:05] Speaker 02:
And that they should have been aware that that degree of force would not be reasonable. Correct.

[00:30:11] Speaker 03:
Correct. With the most egregious use of the force obviously being what we see on the video of what, from Plaintiff's perspective, are two chokeholds by Officer Rankin, which is severe use of force is arguably an attempt to use deadly force.

[00:30:28] Speaker 03:
As this is happening to, as this is happening to McClain, Mr. Dean thinks he's about to die, and that is why you hear him on the video calling out for help, calling out for a supervisor. Again, he is in a situation where he is trying to get away from the police. He's actually calling, essentially calling for more police to come to the scene because, you know, in his layperson understanding of what's happening here, he's clearly the victim of police brutality, and he's hoping that a more senior officer of the Tacoma Police Department arrives on scene and assists him.

[00:31:10] Speaker 05:
Thank you, counsel.

[00:31:12] Speaker 03:
Thank you. If there's no further questions, I'll rest on the briefs. I thank you very much, all of you, for this opportunity. Thank you.

[00:31:27] Speaker 04:
Just briefly, regarding the undisputed facts, it's undisputed that Mr. Dean refused medical attention at the scene and that the only physical injury that he suffered was apparently a bloody lip. And when evaluating the momentary restriction of his breathing when Officer Rankin is trying to pull him away from the railing, we would submit that because of the threat that was posed by the physical positioning of Mr. Dean next to the railing, that Officer Rankin was permitted under those circumstances to do whatever he could to get him off the railing.

[00:32:08] Speaker 04:
And the fact is that this was probably no more than 10 seconds of restricting his breathing. That is the most intrusive use of force here. But under these circumstances, it was not clearly established based on the case law that governs that Officer Rankin could not do what he needed to do to get Mr. Dean off of the railing so that they could safely handcuff him. We would submit that qualified immunity should be applied to both officers and that the trial court's decision should be reversed.

[00:32:39] Speaker 04:
Thank you.

[00:32:40] Speaker 05:
Thank you, counsel. The case is submitted.