[00:00:06] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:00:08] Speaker 04:
My name is McCade Claypool, and I represent Plaintiff Appellant Norma Eisenman, and I'd like to reserve three minutes for rebuttal.

[00:00:14] Speaker 01:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:19] Speaker 04:
Thank you, Your Honor.

[00:00:21] Speaker 04:
This case involves false arrests and excessive force claims arising from Miss Eisenman's U-turn in 2021 and the violent events that followed after that.

[00:00:29] Speaker 04:
Ms.

[00:00:30] Speaker 04:
Eisenman made a U-turn that was lawful to avoid stop traffic, but the defendants who were behind her in unmarked covert Dodge and Chevy pickup trucks thought she was fleeing the police.

[00:00:40] Speaker 04:
So they rammed her vehicle to the curb, shattered her window, and pulled her out at gunpoint.

[00:00:44] Speaker 04:
She was then held on the curb for 30 minutes while officers assured her she was jail-bound, after which she was held for 16 more hours until being released with no charges.

[00:00:54] Speaker 04:
The defendants claim that their conduct was justified, that they had probable cause to arrest her, and that the force was reasonable.

[00:01:02] Speaker 04:
The problem, however, is that the facts that support those claims are highly and heavily disputed, and the remaining undisputed facts don't support those claims.

[00:01:12] Speaker 04:
And for that reason, this court should reverse and remand the district court's grant of summary judgment for defendants.

[00:01:17] Speaker 03:
Did you litigate this case below?

[00:01:19] Speaker 03:
I didn't, Your Honor.

[00:01:20] Speaker 03:
Can you tell us whether

[00:01:22] Speaker 03:
the lawyer or lawyers that did, presented the district court with evidence that the conduct violated clearly established law.

[00:01:33] Speaker 04:
Your Honor, my understanding is that Ms.

[00:01:35] Speaker 04:
Eisen was pro se and represented herself, and the district court did not reach the clearly established issue.

[00:01:41] Speaker 04:
I think this is ER 26 footnote 7.

[00:01:44] Speaker 04:
The court said that he decided on the merits without reaching that issue, so it wasn't fully briefed below.

[00:01:50] Speaker 04:
So starting with probable cause, this court has made clear that when it comes to probable cause, summary judgment is inappropriate if there are disputed facts or if a reasonable jury could find that there was a lack of probable cause.

[00:02:06] Speaker 03:
You've left out one tiny little fact in your description.

[00:02:11] Speaker 03:
She had her grandson in the car.

[00:02:13] Speaker 03:
She did, Your Honor.

[00:02:14] Speaker 03:
And there was an outstanding parole violation warrant.

[00:02:18] Speaker 03:
And law enforcement was looking for him.

[00:02:21] Speaker 03:
and they knew he was in the car.

[00:02:24] Speaker 03:
That was the reason, whether it's justified constitutionally or not, that was the reason for the stop.

[00:02:30] Speaker 04:
Yes, you're right, your honor.

[00:02:31] Speaker 04:
And the question in this case is whether the force and the arrest of Miss Eisenman was constitutional, notwithstanding her grandson being in the back seat.

[00:02:39] Speaker 01:
So, counsel, is it your position that we have to look at those separately?

[00:02:42] Speaker 01:
We have to look at Miss Eisenman separately from her grandson?

[00:02:47] Speaker 04:
The Constitution does protect individual rights, Your Honor, and so when it comes to assessing the force that was used or whether the defendants had probable cause to arrest Ms.

[00:02:57] Speaker 04:
Eisenman, it is a more individualized inquiry.

[00:03:01] Speaker 04:
there may be situations in which his presence mattered, but as I can explain, I don't think it really matters for purposes of this case.

[00:03:08] Speaker 04:
And so on the probable cause, the district court below relied on heavily disputed facts in the defendants' favor to say that there was lights that were turned on, that there was tapping, that there was contact during the U-turn, but each of those facts were heavily disputed and can't support summary judgment.

[00:03:27] Speaker 01:
Counsel, you said it doesn't matter

[00:03:29] Speaker 01:
In this context, are you saying it doesn't matter whether or not they have probable cause to arrest her grandson?

[00:03:35] Speaker 04:
Correct, Your Honor, because this is a false arrest claim against Ms.

[00:03:38] Speaker 04:
Eisenman.

[00:03:39] Speaker 04:
She wasn't raising claims against her grandson, so there may have been probable cause to arrest her grandson, but the question is whether there was probable cause to arrest her.

[00:03:47] Speaker 04:
How long was she detained?

[00:03:49] Speaker 04:
She was detained for 30 minutes after the grandson was taken away, and then another 16 hours in a jail cell.

[00:03:56] Speaker 04:
Handcuffed the whole time?

[00:03:58] Speaker 04:
Handcuffed the whole time, yes, Your Honor.

[00:04:00] Speaker 04:
And so what happened on appeal now, defendants, they concede that all of the facts that the district court relied on below were in fact disputed.

[00:04:10] Speaker 04:
And instead they say, well, it's enough that the grandson was in the car, that the U-turn was mid-block, and also that the officers were behind.

[00:04:20] Speaker 04:
But the critical fact of this case that isn't disputed is that the officers were in

[00:04:24] Speaker 04:
unmarked Dodge and Chevy pickup trucks, white, tan, silver, I think, and maybe, I'm forgetting the fourth color.

[00:04:32] Speaker 04:
But these vehicles were intended to be undiscovered.

[00:04:35] Speaker 04:
And unless the officers did something to let Ms.

[00:04:38] Speaker 04:
Eisenman know that they were there, there was no way that they could have reasonably believed that her conduct was in response to their presence.

[00:04:46] Speaker 03:
The officers knew that the grandson was in the car.

[00:04:49] Speaker 03:
Correct.

[00:04:50] Speaker 03:
And obviously grandma knew that grandson was in the car.

[00:04:54] Speaker 03:
Would it be unreasonable for the officers to assume when she made the U-turn that she was evading arrest of her grandson?

[00:05:05] Speaker 04:
No, Your Honor, I don't think so, for a couple of reasons.

[00:05:07] Speaker 04:
First, they knew that Skyler Michelson was in the backseat, that he didn't have control of the vehicle.

[00:05:13] Speaker 04:
But more importantly, because the officers were in these unmarked cars that had normal license plates, intentionally hidden lights, there was no way for Ms.

[00:05:23] Speaker 04:
Eisenman to know that the officers were there.

[00:05:25] Speaker 04:
And so while it's not necessarily what she knew, the question is, what indicated to the officers that she was aware they were there?

[00:05:33] Speaker 04:
And that's one reason why under Arizona law, unlawful flight specifically says that when a law enforcement vehicle is unmarked, there has to be some evidence that the individual knew that law enforcement was behind them.

[00:05:46] Speaker 04:
And there simply isn't that.

[00:05:47] Speaker 04:
And so on the probable cause, whether you look at the disputed facts like the district court did, or you look at the remaining undisputed facts, there's simply not enough for a reasonable officer to say that she was trying to flee the police.

[00:06:00] Speaker 04:
Moving on to excessive force.

[00:06:02] Speaker 04:
We have sort of three types of excessive force that we've identified in our briefs that I think are important to talk about.

[00:06:09] Speaker 04:
The first is Ms.

[00:06:10] Speaker 04:
Eisenman being pulled from her vehicle at gunpoint.

[00:06:12] Speaker 04:
This court has said very clearly that being held at gunpoint is a highly intrusive means of force and that unless an individual is armed or not cooperating or dangerous, that use of force is excessive.

[00:06:26] Speaker 04:
These are cases like Green that clearly established this and Washington that I think actually Judge Hawkins, you were on the panel,

[00:06:32] Speaker 04:
in Washington v. Lambert with some of your colleagues.

[00:06:36] Speaker 04:
But these cases make clear that that kind of force is excessive.

[00:06:40] Speaker 04:
The second kind of force.

[00:06:41] Speaker 02:
Let me ask you this.

[00:06:43] Speaker 02:
Is it your position that the district court erred by concluding the plaintiff failed to state a claim for excessive force against Detective Angus?

[00:06:53] Speaker 02:
If that's true, why shouldn't we hold that you forfeited that issue by failing to raise it until your reply brief was filed?

[00:07:01] Speaker 04:
So your honor, we, I guess I'll take your questions in reverse order.

[00:07:04] Speaker 04:
So we raised the gun point in the opening brief.

[00:07:07] Speaker 04:
So it's not forfeited because it was just raised in the reply brief.

[00:07:10] Speaker 04:
But more importantly, we do think that the district court aired when he screened the complaint because on, I think it's paragraph 86 or 85 on ER 216.

[00:07:18] Speaker 04:
of the complaint, Ms.

[00:07:20] Speaker 04:
Eisenman specifically says that because she was held at gunpoint, that was an excessive force that violated the Fourth Amendment.

[00:07:27] Speaker 04:
And so the District Court should have included an excessive force claim against Anguis, because this court's precedent is clear that that is a fairly blatant use of force, especially against- The use of the firearm, per se, is enough.

[00:07:41] Speaker 04:
Sorry, Your Honor, can you repeat that?

[00:07:43] Speaker 04:
The use of the firearm, the brandishing of the firearm is enough.

[00:07:47] Speaker 04:
According to this court's precedent, pointing a firearm at an unarmed, cooperative, non-dangerous individual has been held to be excessive force.

[00:07:57] Speaker 02:
Which state do you refer to?

[00:07:59] Speaker 04:
Yeah, so this is Green versus, I think, County and City of San Francisco, maybe.

[00:08:03] Speaker 04:
Washington versus Lambert is also another one.

[00:08:08] Speaker 04:
We have the United States versus Del Vizo, Hopkins versus Bovicino.

[00:08:13] Speaker 04:
There are numerous cases where they have very similar fact patterns.

[00:08:17] Speaker 04:
An outnumbered individual who is held at gunpoint and is not resisting arrest or otherwise armed.

[00:08:25] Speaker 04:
And so that's the first excessive force that I think the district court erred on.

[00:08:29] Speaker 04:
The second is the ramming.

[00:08:31] Speaker 04:
And with the ramming and the window shattering, it gets a little bit more complicated because there are disputed facts.

[00:08:37] Speaker 04:
And so where we have disputed facts, this court has made clear that summary judgment is also inappropriate.

[00:08:43] Speaker 04:
The reason why the defendants thought that it was okay to ram Ms.

[00:08:47] Speaker 04:
Eisenman's vehicle to the curb was because she was trying to evade the police, that the U-turn was abrupt.

[00:08:54] Speaker 04:
But as we just discussed a little bit ago, all of those facts are in dispute.

[00:08:59] Speaker 04:
Excessive force claims, as this court has said, is typically a jury question because they are very fact-sensitive.

[00:09:07] Speaker 04:
And so we're here.

[00:09:08] Speaker 04:
There are disputed facts.

[00:09:09] Speaker 04:
The court should not have ruled in defendant's favor on the summary judgment issue.

[00:09:13] Speaker 03:
The brief on appeal is your brief.

[00:09:15] Speaker 03:
Yes.

[00:09:17] Speaker 03:
Does it argue error in failing to analyze the excessive force claim by the district court?

[00:09:24] Speaker 04:
As to the guns, Your Honor, or as to the ramming or the window shattering?

[00:09:28] Speaker 03:
excessive force in general.

[00:09:30] Speaker 04:
Yes, your honor, it does.

[00:09:32] Speaker 04:
Okay.

[00:09:33] Speaker 04:
And are specifically our argument is that the district court relied on disputed facts and granted summer judgment in the movements favor, which is not something that it should have done.

[00:09:45] Speaker 04:
And then just to sort of move on to the next and last piece of force, we also have the window shattering.

[00:09:52] Speaker 04:
And with this window shattering, the two reasons or justified need that the defendants gave was tinted windows and a fear of weapons.

[00:10:00] Speaker 04:
But the other officer's own testimony makes, or at least undercuts, the tintedness of the windows and whether they could see in.

[00:10:08] Speaker 04:
And also there's no objective evidence that there were guns in the vehicle.

[00:10:12] Speaker 04:
In fact, Mr. Michelson, while he had

[00:10:15] Speaker 04:
dangerously evaded the police several times, never were there firearms involved.

[00:10:19] Speaker 04:
And so the need to shatter a window was simply not there.

[00:10:24] Speaker 02:
And so because of those- But that was their fear though, right?

[00:10:27] Speaker 02:
That the grandson might be armed?

[00:10:30] Speaker 04:
That is what Officer Bennett stated in his declaration that he filed with the litigation a couple years later.

[00:10:36] Speaker 04:
But I think more importantly, this court has sort of made clear that excessive force is an objective inquiry.

[00:10:42] Speaker 04:
What the facts and circumstances are in the officer's mind

[00:10:45] Speaker 04:
based on objective facts.

[00:10:48] Speaker 04:
And where there's nothing to support Officer Bennett's belief that there were firearms in the car, that subjective belief simply isn't enough to justify.

[00:10:58] Speaker 04:
And so I'm happy to discuss any of the other issues that the court has.

[00:11:04] Speaker 04:
But for those reasons, we would ask the court reverse and remand because the disputed facts

[00:11:10] Speaker 04:
make it such that there was, at least the jury could find that there was a lack of probable cause and that the forced use here was excessive.

[00:11:17] Speaker 01:
Thank you, counsel.

[00:11:19] Speaker 01:
We'll hear from the defendants.

[00:11:31] Speaker 00:
May it please the court?

[00:11:32] Speaker 00:
My name is Jennifer Rethemeier.

[00:11:34] Speaker 00:
I represent Defendants Apaliz, Sergeant Brooks, Detective Bennett, and Detective Enguis.

[00:11:40] Speaker 00:
Ms.

[00:11:40] Speaker 00:
Eisenman's overarching argument on appeal is that this court must disregard Michaelson's role in these events.

[00:11:46] Speaker 00:
That is incorrect.

[00:11:48] Speaker 00:
I'll take the claims in the same order that appellants council did, starting with false arrest.

[00:11:54] Speaker 00:
Detective Anguis reasonably believed that Ms.

[00:11:57] Speaker 00:
Eisenman had committed a crime and as a result, there was probable cause for any arrest that ensued.

[00:12:03] Speaker 01:
What was the crime council?

[00:12:05] Speaker 00:
Fleeing the police.

[00:12:07] Speaker 00:
And I do want to point out in particular that under Arizona law, it is not an element of that crime that the lights for the police vehicle be activated.

[00:12:17] Speaker 00:
In Ms.

[00:12:18] Speaker 00:
Eisenman's reply brief, she cites a case called Vorah versus City of Placentia for the notion that there can't be probable cause if the police lights are not activated.

[00:12:29] Speaker 00:
That case came out of California and was decided under California law where it is an element of the crime that the lights be activated.

[00:12:36] Speaker 00:
And that is why that case is an apposite.

[00:12:39] Speaker 00:
There also there wasn't the factor of Michelson who was looking over his shoulder and is the exact reason why Ms.

[00:12:48] Speaker 00:
Eisenman would have known that there is a police vehicle behind her.

[00:12:51] Speaker 01:
Counsel, how would she have known that there was a police vehicle behind her if the vehicles were unmarked and there were no lights on them?

[00:12:59] Speaker 00:
Looking at this from the officer's perspective, as we must, he knew that Michelson was in the vehicle

[00:13:06] Speaker 00:
And that having evaded police dangerously earlier that same day, he had every reason to be looking over his shoulder.

[00:13:13] Speaker 00:
And upon seeing five trucks converge all of a sudden behind her with lights in the, so they're in the windshield instead of being on top, but they're still there.

[00:13:23] Speaker 00:
So upon seeing this, this display of vehicles, he would have looked back, seen that and instructed Ms.

[00:13:29] Speaker 00:
Eisenman to flee.

[00:13:30] Speaker 00:
That's where the knowledge would come from.

[00:13:32] Speaker 01:
Is this a disputed issue of fact?

[00:13:34] Speaker 00:
No, we have taken disputed issues of fact clear out of this in our briefing by simply accepting Ms.

[00:13:40] Speaker 00:
Eisenman's version of events, even when it was in litigation related statements.

[00:13:44] Speaker 01:
So we have- Well, she said that she didn't know that they were police officers.

[00:13:48] Speaker 01:
So why doesn't that create a dispute of fact?

[00:13:51] Speaker 00:
Because we look at probable cause from the perspective of the officer and what he knew.

[00:13:56] Speaker 01:
And the police officer knew- But don't we look at fleeing in terms of what the person who's charged with fleeing knows or reasonably should have known?

[00:14:04] Speaker 00:
So for the probable cause inquiry, no, that is from the officer's perspective, and the facts available to the officer were that Michelson was in the vehicle and had every reason to be looking behind him where he could have noticed and then alerted Ms.

[00:14:19] Speaker 00:
Eisenman that these were police vehicles.

[00:14:22] Speaker 03:
During the stop, did she evidence knowledge that her grandson was in trouble?

[00:14:30] Speaker 00:
Well, yes, but that's a disputed fact, so we have not relied upon it in our briefing.

[00:14:34] Speaker 00:
So there was an interview conducted, I believe it was by Officer Cox, just after she had been taken into custody and there she admitted that Michelson had yelled at her to flee and that's why she did the U-turn.

[00:14:48] Speaker 00:
We have not relied on that in our briefing because in her deposition she denied that that was the case.

[00:14:54] Speaker 00:
So we have taken that disputed fact out of play.

[00:14:57] Speaker 03:
Does that in and of itself create a disputed fact that she said one thing at one time

[00:15:04] Speaker 03:
And another thing at another time?

[00:15:06] Speaker 00:
So it doesn't because from the perspective of Detective Anguis, he knew that there was a reason for her to know that it was a police vehicle behind her and that that explains the U-turn.

[00:15:21] Speaker 00:
And that's where we have probable cause.

[00:15:25] Speaker 01:
Also, could you move to the excessive force part of this, if you're done discussing the probable cause?

[00:15:32] Speaker 01:
Force.

[00:15:36] Speaker 00:
So again, Appellants' Council would like to create a fact question here, but we have taken fact questions out of play by using Ms.

[00:15:42] Speaker 00:
Eisenman's version of events.

[00:15:45] Speaker 00:
And in addition to that, once the facts are construed in favor of the plaintiff, it is a pure question of law as to whether the officer's actions were reasonable.

[00:15:55] Speaker 00:
That's Scott versus Harris.

[00:15:57] Speaker 00:
So here we have a balancing test.

[00:16:01] Speaker 00:
We have, you know, the reasonableness of the officer's actions against the government interest.

[00:16:05] Speaker 00:
And the court is allowed to consider Michelson's actions in that.

[00:16:09] Speaker 00:
That is one side of the equation is the need and government interest to capture a fugitive who was wanted by Georgia and who had dangerously evaded police twice earlier that day.

[00:16:21] Speaker 00:
So, excuse me, once earlier that day.

[00:16:23] Speaker 01:
What about the period of time after he was taken away?

[00:16:26] Speaker 01:
So he was no longer part of the equation at that point.

[00:16:28] Speaker 01:
Would you agree?

[00:16:31] Speaker 00:
So he was secured following the stop and the removal of the occupants of the vehicle, he was secured.

[00:16:38] Speaker 01:
And so, but wasn't she detained after that part in handcuffs, after he was removed?

[00:16:44] Speaker 01:
Do you agree with that?

[00:16:46] Speaker 01:
And so what was the basis for keeping her handcuffed after he was removed?

[00:16:54] Speaker 00:
So as to excessive force, which I believe we're still on, because Ms.

[00:16:58] Speaker 00:
Eisenman

[00:17:00] Speaker 00:
in our view, did not even assert an excessive force claim against Detective Enguis.

[00:17:04] Speaker 00:
And of course, the screening order did not find that there was an excessive force claim against Detective Enguis.

[00:17:10] Speaker 00:
I don't represent him in connection with such a claim, and I'm limited in how I can respond.

[00:17:16] Speaker 00:
But I can direct the court to the screening order at ER 180 to 181.

[00:17:21] Speaker 00:
It discusses what constitutes a, excuse me, it describes

[00:17:27] Speaker 00:
how Ms.

[00:17:28] Speaker 00:
Eisenman stated an excessive force claim and it states that it is only against Detective Brooks and it is in connection with ramming the vehicle.

[00:17:36] Speaker 03:
Could a reasonable jury have concluded that the officers were justified in stopping her vehicle because they reasonably thought she was

[00:17:54] Speaker 03:
helping her grandson evade arrest.

[00:17:57] Speaker 03:
They knew he was in the car, right?

[00:17:59] Speaker 00:
Yes, absolutely.

[00:18:01] Speaker 00:
And that's where we have argued that there was probable cause for any arrest that occurred on Detective Englis's watch and subsequently resulting in her being in custody for 16 hours.

[00:18:15] Speaker 03:
Wouldn't the level of her knowledge about her son's law enforcement problems, if we can call it

[00:18:24] Speaker 03:
go to that issue, whether the officers reasonably believe she was evading arrest.

[00:18:32] Speaker 00:
It could, if the officers knew that at the time and under the probable cause standard, it is a question of what the officer knew in that moment, making a split second decision.

[00:18:42] Speaker 01:
Okay.

[00:18:46] Speaker 01:
So at some point, um, her custody was handed over to other officers.

[00:18:53] Speaker 01:
Correct.

[00:18:53] Speaker 01:
Do you represent those officers?

[00:18:55] Speaker 00:
I do not.

[00:18:55] Speaker 00:
They are not defendants in this matter.

[00:18:59] Speaker 00:
I'll turn then to the use of the window tool by Detective Bennett.

[00:19:04] Speaker 00:
This is reasonable because we are talking about a very minimal incursion of property damage in exchange for officer safety.

[00:19:12] Speaker 00:
Traffic stops are shockingly dangerous for officers, as the Supreme Court has detailed on certain occasions, including Maryland v. Wilson.

[00:19:22] Speaker 00:
Here, Appellants' Council talked about whether there was a gun in the car.

[00:19:28] Speaker 00:
And while there wasn't necessarily firm reason to believe there was a gun in the car, but really it's a matter of whether there is a weapon in the car.

[00:19:36] Speaker 00:
And that's defined far more broadly.

[00:19:38] Speaker 00:
He knows that Michelson had endangered specifically officer safety earlier that same day.

[00:19:44] Speaker 00:
And I would argue with a weapon, a car can be used as a deadly weapon.

[00:19:49] Speaker 01:
But if the car is the deadly weapon, why would you need to shatter the windows?

[00:19:54] Speaker 00:
So obviously that would not be the case here.

[00:19:57] Speaker 00:
It goes to knowing that there was an occupant of the vehicle who did not respect officer safety.

[00:20:04] Speaker 00:
And so not knowing what objects may be in the vehicle that could be used as a weapon, it was reasonable of Detective Bennett to use the window breaking tool and incur $198 worth of damage.

[00:20:16] Speaker 01:
Was there any historical

[00:20:19] Speaker 01:
evidence that Michelson had displayed weapons before or had possessed weapons?

[00:20:27] Speaker 01:
Did the officers have any knowledge of that to that degree?

[00:20:31] Speaker 00:
So not in the record.

[00:20:32] Speaker 00:
That said, they were not able to search him on the two occasions when he sped off endangering bystanders, you know, and officers alike.

[00:20:43] Speaker 00:
And I'll conclude by turning over to qualified immunity.

[00:20:46] Speaker 01:
Before we leave the window shattering,

[00:20:48] Speaker 01:
The rationale for shattering the window was to make sure they had visibility into the car.

[00:20:56] Speaker 01:
But wasn't there a statement that one of the officers had seen Michelson lean forward?

[00:21:01] Speaker 01:
And wouldn't that contradict the rationale that they needed to see into the car?

[00:21:08] Speaker 00:
As a threshold matter, Ms.

[00:21:09] Speaker 00:
Eisenman had never stated that the windows were not tinted.

[00:21:13] Speaker 00:
Instead, she points to this seeming contradiction in the testimony.

[00:21:16] Speaker 01:
That wasn't my question.

[00:21:17] Speaker 01:
My question was,

[00:21:18] Speaker 01:
Isn't that inconsistent for one officer to say that the window was shattered because they needed visibility into the vehicle and another officer to say they had already espied Mr. Michaelson leaning forward in the car, which would tend to indicate that there was visibility.

[00:21:37] Speaker 00:
It is not inconsistent because window tinting is not all or nothing.

[00:21:41] Speaker 00:
A window can be tinted to a degree that a person from the outside could see

[00:21:46] Speaker 00:
a bigger object or we'll say a person moving in the vehicle, but didn't have the visibility to see smaller items such as objects or weapons located in the backseat of the vehicle.

[00:21:59] Speaker 00:
It's also the case that Detective Bennett had to operate, make this decision in a split second.

[00:22:06] Speaker 00:
They very quickly removed the occupants of the vehicle, again for safety, and were successful in doing so.

[00:22:12] Speaker 00:
This was a high-risk stop where no shots were fired and no physical injuries were incurred.

[00:22:17] Speaker 00:
So in that split second, he decided to go ahead and use the window-breaking tool.

[00:22:27] Speaker 00:
And of course, the felons have not identified any clearly established case law.

[00:22:32] Speaker 00:
Despite being put to that task, they did not below and they did not on appeal establish

[00:22:38] Speaker 00:
establish any sort of case law holding that these things the officers did were clearly unlawful.

[00:22:45] Speaker 02:
Is it your position that qualified immunity is your best defense?

[00:22:53] Speaker 00:
It's my opinion that probable cause is the best defense to the false arrest claim and also that there was no constitutional violation as to the excessive force.

[00:23:07] Speaker 00:
I also think that qualified immunity is also a ground on which this court can rule.

[00:23:12] Speaker 00:
Although Ms.

[00:23:14] Speaker 00:
Eisenman asserted in her reply brief that this court should decline to reach that issue, Ms.

[00:23:21] Speaker 00:
Eisenman admits that this court has the discretion to do so, and we urge the court to go ahead and rule on that issue if they find a constitutional violation.

[00:23:31] Speaker 00:
It is a pure question of law, and were this matter to be remanded for a decision by the district court,

[00:23:37] Speaker 00:
The parties would simply appeal right back here and make the same argument on the same record on the same issue.

[00:23:44] Speaker 00:
And in fact, because the district court decision would be reviewed de novo, it would have limited effect also for that reason.

[00:23:55] Speaker 00:
Absent further questions, we ask that the court affirm the judgment.

[00:23:59] Speaker 01:
Thank you, counsel.

[00:24:07] Speaker 04:
I just want to I just want to say a couple points to correct some factual misstatements, but also to clarify some of the issues, starting with probable cause.

[00:24:16] Speaker 04:
One thing that my friend on the other side said was that Michelson had to have been looking over his shoulder.

[00:24:21] Speaker 04:
Unfortunately, there's no support of that in the record.

[00:24:23] Speaker 04:
It's a pure speculation.

[00:24:24] Speaker 04:
And in fact, one of the disputed facts is that Michelson was aware of the officers and tapped Ms.

[00:24:30] Speaker 04:
Eisenman on the shoulder.

[00:24:31] Speaker 04:
That unfortunately is not in the record, at least for defendants, and so it can't be relied on for summary judgment.

[00:24:36] Speaker 04:
The second thing, Judge Rollinson, you asked, you know, is it true that Michelson was no longer part of the equation, especially after the vehicle was stopped and he was pulled from the vehicle, and that's absolutely true.

[00:24:47] Speaker 04:
He was pulled away and she was held for another 30 minutes on the curb.

[00:24:52] Speaker 04:
And so when we started off this conversation saying that Michelson, you know, was he there, was he part of, you know, the situations, yes.

[00:24:59] Speaker 04:
But between the force being directed at Ms.

[00:25:02] Speaker 04:
Eisenman and then Michelson being taken away, that's one reason why his presence does not necessarily change the equation when it comes to the probable cause and the excessive force against Ms.

[00:25:13] Speaker 04:
Eisenman.

[00:25:14] Speaker 04:
Judge Hawkins, you also said that was it okay to stop the vehicle?

[00:25:21] Speaker 04:
And one of the things that we have maintained from the beginning is that it was okay to stop the vehicle.

[00:25:27] Speaker 04:
The problem, however, is the excessive force used to stop the vehicle as well as to pull her from the vehicle at gunpoint and the shattering of the windows.

[00:25:36] Speaker 04:
So it wasn't the stopping that was unlawful, it was the force used to effectuate that stop as well as the arrest that followed.

[00:25:43] Speaker 04:
One other thing that my... So are you conceding the probable cause point?

[00:25:49] Speaker 04:
No.

[00:25:49] Speaker 04:
No, Your Honor.

[00:25:49] Speaker 04:
No, Your Honor.

[00:25:51] Speaker 04:
And I am forgetting the case off the top of my head, but generally this court has held that when someone, when there's a person in the car, it's all right to stop the vehicle.

[00:25:59] Speaker 04:
The question, though, here is whether they could have used that force and specifically whether there reason for stopping the vehicle, Ms.

[00:26:05] Speaker 04:
Eisenman fleeing the police, whether there was probable cause.

[00:26:07] Speaker 04:
And so that's a separate issue.

[00:26:09] Speaker 01:
So Counsel, opposing counsel said that you look at the facts in view of the reasonable officer's perspective.

[00:26:17] Speaker 01:
So do you agree that the perspective of the person who is accused of fleeing has no role in that analysis?

[00:26:25] Speaker 04:
No, Your Honor.

[00:26:26] Speaker 04:
as a general matter, yes, probable causes from the reasonable officer's perspective, but it's an objective test.

[00:26:32] Speaker 04:
And in order to figure out what facts and circumstances were in an objective officer's view, we can look at the testimony of Ms.

[00:26:39] Speaker 04:
Eisenman.

[00:26:40] Speaker 04:
For example, she said there were no lights.

[00:26:42] Speaker 04:
That creates a disputed fact as to whether there were lights.

[00:26:45] Speaker 04:
But I think more importantly, you know, we had mentioned, I think, the California law in

[00:26:49] Speaker 04:
Here in Arizona, the law is that when there's an unmarked vehicle, you cannot be convicted of fleeing the police unless there is evidence that the individual was aware that the unmarked vehicle was law enforcement.

[00:27:01] Speaker 04:
And so that has to play into this analysis of whether or not there was fleeing the police.

[00:27:07] Speaker 04:
And here it's at least disputed that Ms.

[00:27:09] Speaker 04:
Eisenman had any awareness.

[00:27:11] Speaker 04:
I'm going to the last point about qualified immunity.

[00:27:14] Speaker 04:
I just wanted to say that my friend on the other side had mentioned that we didn't point to any clearly established law, which is not true for probable cause.

[00:27:22] Speaker 04:
We pointed to the Vora case for the arrest.

[00:27:24] Speaker 04:
We pointed to Green and Washington.

[00:27:26] Speaker 04:
And it is true that we did not find necessarily any cases as to the ramming and the shattering that are sort of clearly on point.

[00:27:35] Speaker 04:
However,

[00:27:36] Speaker 04:
This court has been clear that when there are disputed facts that underlie the qualified immunity analysis, qualified immunity itself cannot be decided at summary judgment.

[00:27:45] Speaker 04:
And so for the ramming and for the window shattering, that's something that this court can't decide.

[00:27:49] Speaker 04:
And the very last thing is physical injury.

[00:27:52] Speaker 04:
Miss Eisenman did, in fact, experience significant psychological trauma as well as her passenger.

[00:27:57] Speaker 04:
And so for that, we ask the court to reverse.

[00:28:00] Speaker 01:
Thank you, counsel.

[00:28:01] Speaker 01:
Thank you to both counsel for your helpful arguments.

[00:28:03] Speaker 01:
The case just argued is submitted for decision by the court.

[00:28:06] Speaker 01:
The next case on calendar for argument is Secoccio versus City of Phoenix.

[00:28:22] Speaker 01:
Oh, before you leave, counsel, we would like to thank you so much for taking on this case, Pro Bono.

[00:28:27] Speaker 01:
Were you appointed by the court?

[00:28:29] Speaker 01:
I was, yeah.

[00:28:29] Speaker 01:
Thank you so much.

[00:28:30] Speaker 01:
We appreciate that.

[00:28:31] Speaker 01:
So very much.

[00:28:32] Speaker 01:
Thank you for reminding.