[00:00:06] Speaker 04:
Good morning, Your Honors, and may it please the Court. 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 00:
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. This case involves false arrests and excessive force claims arising from Ms. Eisenman's U-turn in 2021 and the violent events that followed after that. Ms. Eisenman made a U-turn that was lawful to avoid stopped traffic, but the defendants who were behind her in unmarked covert Dodge and Chevy pickup trucks thought she was fleeing the police. So they rammed her vehicle to the curb, shattered her window, and pulled her out at gunpoint. She was then held on the curb for 30 minutes while officers assured her she was jailbound, 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. 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. And for that reason, this court should reverse and remand the district court's grant of summary judgment for defendants.

[00:01:17] Speaker 02:
Did you litigate this case below? I didn't, Your Honor. Okay. Can you tell us whether... 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. Eisen was pro se and represented herself, and the district court did not reach the clearly established issue. I think this is ER 26 footnote 7. The court said that he decided on the merits without reaching that issue, so it wasn't fully briefed below. Okay.

[00:01:51] 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 02:
You've left out one tiny little fact in your description.

[00:02:11] Speaker 02:
She had her grandson in the car. She did, Your Honor. And there was an outstanding parole violation warrant, and law enforcement was looking for him. And they knew he was in the car.

[00:02:24] Speaker 02:
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. And the question in this case is whether the force and the arrest of Ms. Eisenman was constitutional, notwithstanding her grandson being in the back seat.

[00:02:39] Speaker 00:
So, Counsel, is it your position that we have to look at those separately? We have to look at Ms. Eisenman separately from her grandson? Yes.

[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. Eisenman, it is a more individualized inquiry. 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. And so on the probable cause, the... The district court below relied on heavily disputed facts in the defendant's favor to say that there was lights that were turned on, that there was tapping, that there was contact during the U-turn.

[00:03:24] Speaker 04:
But each of those facts were heavily disputed and can't support summary judgment.

[00:03:27] Speaker 00:
Counsel, you said it doesn't matter in this context. Are you saying it doesn't matter whether or not they had probable cause to arrest her grandson?

[00:03:35] Speaker 04:
Correct, Your Honor, because this is a false arrest claim against Ms. Eisenman. 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. How long was she detained? 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? 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. 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. But the critical fact of this case that isn't disputed is that the officers were in 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 And unless the officers did something to let Ms. 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 02:
The officers knew that the grandson was in the car. Correct. And obviously Grandma knew that grandson was in the car.

[00:04:54] Speaker 04:
Yes.

[00:04:56] Speaker 02:
Would it be unreasonable for the officers to assume when she made the U-turn that she was evading arrest of her grandson? No.

[00:05:05] Speaker 04:
No, Your Honor, I don't think so, for a couple of reasons. First, they knew that Skyler Michelson was in the back seat, that he didn't have control of the vehicle. 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. Eisenman to know that the officers were there. 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. 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. 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. Moving on to excessive force.

[00:06:03] 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. The first is Ms. Eisenman being pulled from her vehicle at gunpoint. 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. These are cases like Greene that clearly established this and Washington that I think actually Judge Hawkins, you were on the panel, 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. Let me ask you this.

[00:06:43] Speaker 03:
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 03:
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, I guess I'll take your questions in reverse order. So we raised the gunpoint in the opening brief, so it's not forfeited because it was just raised in the reply brief. But more importantly, we do think that the district court erred when he screened the complaint because on, I think it's paragraph 85 on ER 216 of the complaint, Ms. Eisenman specifically says that because she was held at gunpoint, that was an excessive force that violated the Fourth Amendment. And so the district court should have included an excessive force claim against Anglis because this court's precedent is clear that that is a fairly blatant use of force, especially... The use of the firearm per se is enough.

[00:07:41] Speaker 03:
Sorry, Your Honor, can you repeat that? 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.

[00:07:56] Speaker 03:
And this is a gun... Which case do you refer to?

[00:07:59] Speaker 04:
Yeah, so this is Greene versus, I think, County and City of San Francisco, maybe. Washington versus Lambert is also another one. We have the United States versus Del Vizo, Hopkins versus Bovichino. There are numerous cases where they have very similar fact patterns. 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. The second is the ramming. And with the ramming and the window shattering, it gets a little bit more complicated because there are disputed facts. And so where we have disputed facts, this court has made clear that summary judgment is also inappropriate. The reason why the defendants thought that it was okay to ram Ms. Eisenman's vehicle to the curb was because she was trying to evade the police, that the U-turn was abrupt. But as we just discussed a little bit ago, all of those facts are in dispute.

[00:08:58] Speaker 04:
And so excessive force claims, as this court has said, is typically a jury question because they are very fact-sensitive.

[00:09:08] Speaker 04:
And so we're here. There are disputed facts. The court should not have ruled in defendant's favor on the summary judgment issue.

[00:09:13] Speaker 02:
A brief on appeal is your brief.

[00:09:15] Speaker 04:
Yes.

[00:09:17] Speaker 02:
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 shuttering?

[00:09:28] Speaker 02:
Just excessive force in general.

[00:09:30] Speaker 04:
Yes, Your Honor, it does. Okay. And specifically our argument is that the district court relied on disputed facts and granted summary judgment in the movement's 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. And with this window shattering, the two reasons or justified need that the defendants gave was tinted windows and a fear of weapons. But the other officer's own testimony makes, or at least undercuts, the tintedness of the windows and whether they could see in. And also there is no objective evidence that there were guns in the vehicle. In fact, Mr. Michelson, while he had 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 03:
But that was their fear, though, right, 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. But I think more importantly, this court has sort of made clear that excessive force is an objective inquiry. What the facts and circumstances are in the officer's mind based on sort of objective facts. 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.

[00:10:59] Speaker 04:
And so I'm happy to discuss any of the other issues that the court has, but for those reasons, we would ask that the court reverse and remand because the disputed facts make it such that there was, at least a jury could find, that there was a lack of probable cause and that the forced use here was excessive.

[00:11:17] Speaker 00:
Hi, thank you, counsel.

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

[00:11:31] Speaker 01:
May it please the court, my name is Jennifer Rethemeyer. I represent defendants Appalese, Sergeant Brooks, Detective Bennett, and Detective Engwist. Ms. Eisenman's overarching argument on appeal is that this court must disregard Michelson's role in these events. That is incorrect. I'll take the claims in the same order that Appellant's counsel did, starting with false arrest.

[00:11:54] Speaker 01:
Detective Engwis reasonably believed that Ms. Eisenman had committed a crime, and as a result, there was probable cause for any arrest that ensued. Who was the crime counsel? Fleeing the police.

[00:12:08] Speaker 01:
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. In Ms. Eisenman's reply brief, she cites a case called Vora v. City of Placentia for the notion that there can't be probable cause if the police lights are not activated. 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. And that is why that case is an opposite.

[00:12:39] Speaker 01:
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. 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 01:
So looking at this from the officer's perspective, as we must, he knew that Michelson was in the vehicle. and that having evaded police dangerously earlier that same day, he had every reason to be looking over his shoulder. 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. So upon seeing this display of vehicles, he would have looked back, seen that, and instructed Ms. Eisenman to flee.

[00:13:30] Speaker 01:
That's where the knowledge would come from.

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

[00:13:34] Speaker 01:
No, we have taken disputed issues of fact clear out of this in our briefing by simply accepting Ms. Eisenman's version of events, even when it was in litigation-related statements.

[00:13:44] Speaker 00:
Well, she said that she didn't know that they were police officers. So why doesn't that create a dispute of fact?

[00:13:51] Speaker 01:
Because we look at probable cause from the perspective of the officer and what he knew.

[00:13:56] Speaker 00:
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 01:
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. Eisenman that these were police vehicles.

[00:14:21] Speaker 02:
During the stop, did she evidence knowledge that her grandson was in trouble?

[00:14:30] Speaker 01:
Well, yes, but that's a disputed fact, so we have not relied upon it in our briefing. 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. We have not relied on that in our briefing because in her deposition she denied that that was the case. So we have taken that disputed fact out of play.

[00:14:57] Speaker 02:
Does that in and of itself create a disputed fact that she said one thing at one time And another thing at another time?

[00:15:06] Speaker 01:
So it doesn't because from the perspective of Detective Inglis, 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 01:
And that's where we have probable cause.

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

[00:15:36] Speaker 01:
So again, Appellants Council would like to create a fact question here, but we have taken fact questions out of play by using Ms. Eisenman's version of events.

[00:15:45] Speaker 01:
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. That's Scott versus Harris.

[00:15:57] Speaker 01:
So here we have a balancing test. We have the reasonableness of the officer's actions against the government interest. And the court is allowed to consider Michelson's actions in that. 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. Excuse me, once earlier that day.

[00:16:23] Speaker 00:
What about the period of time after he was taken away? So he was no longer part of the equation at that point. Would you agree?

[00:16:31] Speaker 01:
So he was secured following the stop and the removal of the occupants of the vehicle, he was secured.

[00:16:38] Speaker 00:
And so, but wasn't she detained after that part in handcuffs, after he was removed? Do you agree with that? And so what was the basis for keeping her handcuffed after he was removed?

[00:16:54] Speaker 01:
So as to excessive force, which I believe we're still on, because Ms. Eisenman had In our view, did not even assert an excessive force claim against Detective Inglis. And, of course, the screening order did not find that there was an excessive force claim against Detective Inglis. I don't represent him in connection with such a claim, and I'm limited in how I can respond.

[00:17:16] Speaker 01:
But I can direct the court to the screening order. At ER 180 to 181, it discusses what constitutes a – or, excuse me, it describes – How, Ms. 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 02:
Could a reasonable jury have concluded that the officers were justified in stopping her vehicle because they reasonably thought she was, helping her grandson evade arrest. They knew he was in the car, right?

[00:17:59] Speaker 01:
Yes, absolutely.

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

[00:18:15] Speaker 02:
Wouldn't the level of her knowledge about her son's law enforcement problems, if we can call it, go to that issue, whether the officers reasonably believed she was evading arrest?

[00:18:33] Speaker 01:
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. Okay.

[00:18:46] Speaker 00:
So at some point, her custody was handed over to other officers, right? Correct. Do you represent those officers? I do not.

[00:18:55] Speaker 01:
They are not defendants in this matter.

[00:18:59] Speaker 01:
I'll turn then to the use of the window tool by Detective Bennett. This is reasonable because we are talking about a very minimal incursion of property damage in exchange for officer safety. Traffic stops are shockingly dangerous for officers, as the Supreme Court has detailed on certain occasions, including Maryland v. Wilson.

[00:19:23] Speaker 01:
here, Appellant's counsel talked about whether there was a gun in the car. And, well, 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, and that's defined far more broadly. He knows that Michelson had endangered specifically officer safety earlier that same day, 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? So obviously that would not be the case here. It goes to knowing that there was an occupant of the vehicle who did not respect officer safety. 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. Was there any historical...

[00:20:20] Speaker 00:
evidence that Michelson had displayed weapons before or had possessed weapons? Did the officers have any knowledge of that to that degree?

[00:20:31] Speaker 01:
Not in the record. That said, they were not able to search him on the two occasions when he sped off endangering bystanders and officers alike.

[00:20:43] Speaker 01:
And I'll conclude by turning over to qualified immunity.

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

[00:20:50] Speaker 00:
the rationale for shattering the window was to make sure they had visibility into the car, but wasn't there a statement that one of the officers had seen Michelson lean forward, and wouldn't that contradict the rationale that they needed to see into the car?

[00:21:08] Speaker 01:
As a threshold matter, Ms. Eisenman has never stated that the windows were not tinted. Instead, she points to this seeming contradiction in the testimony.

[00:21:16] Speaker 00:
That wasn't my question. My question was, 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. Michelson leaning forward in the car, which would tend to indicate that there was visibility?

[00:21:37] Speaker 01:
It is not inconsistent because window tinting is not all or nothing. A window can be tinted to a degree that a person from the outside could see 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 back seat of the vehicle. It's also the case that Detective Bennett had to operate, make this decision in a split second. They very quickly removed the occupants of the vehicle, again, for safety, and were successful in doing so.

[00:22:12] Speaker 01:
This was a high-risk stop where no shots were fired and no physical injuries were incurred. So in that split second, he decided to go ahead and use the window-breaking tool.

[00:22:27] Speaker 01:
And, of course, felons have not identified any clearly established case law. Despite being put to that task, they did not below and they did not on appeal establish establish any sort of case law holding that these things the officers did were clearly unlawful.

[00:22:45] Speaker 03:
Is it your position that qualified immunity is your best defense?

[00:22:53] Speaker 01:
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. I also think that qualified immunity is also a ground on which this court can rule.

[00:23:13] Speaker 01:
Although Ms. Eisenman asserted in her reply brief that this court should decline to reach that issue, Ms. 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. It is a pure question of law, and were this matter to be remanded for a decision by the district court, 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 01:
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 01:
Absent further questions, we ask that the court affirm the judgment.

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

[00:24:01] Speaker 00:
Rebuttal.

[00:24:08] Speaker 04:
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. One thing that my friend on the other side said was that Michelson had to have been looking over his shoulder. Unfortunately, there's no support of that in the record. It's a pure speculation. And, in fact, one of the disputed facts is that Michelson was aware of the officers and tapped Ms. Eisenman on the shoulder. That, unfortunately, is not in the record, at least for defendants, and so it can't be relied on for summary judgments. The second thing, Judge Rawlinson, 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. 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, but between the force being directed at Ms. 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. Eisenman. Judge Hawkins, you also said, 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. 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. 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. One other thing that my friend – So are you conceding the probable cause point? No, Your Honor. No, Your Honor. And I'm 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's reason for stopping the vehicle, Ms. Eisenman fleeing the police, whether there was probable cause. And so that's a separate issue.

[00:26:09] Speaker 00:
So, Counsel, opposing counsel said that you look at the facts in view of the reasonable officer's perspective. 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. As a general matter, yes, probable cause is from the reasonable officer's perspective, but it's an objective test. 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. Eisenman. For example, she said there were no lights. That creates a disputed fact as to whether there were lights. But I think more importantly, you know, we had mentioned, I think, the California law and VORA. Here in Arizona, the law is that when there is 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. And here it's at least disputed that Ms. Eisenman had any awareness. Going to the last point about qualified immunity, 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, we pointed to the Vora case. For the arrest, we pointed to Greene and Washington.

[00:27:26] Speaker 04:
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. However, 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. And so for the ramming and for the window shattering, that's something that this court can't decide. And the very last thing is physical injury. Ms. Eisenman did, in fact, experience significant psychological trauma as well as her passenger And so for that, we ask the court to reverse.

[00:28:00] Speaker 00:
Thank you, counsel. Thank you to both counsel for your helpful arguments. The case just argued is submitted for decision by the court. The next case on calendar for argument is Socorro versus City of Phoenix.

[00:28:22] Speaker 00:
Before you leave, counsel, we would like to thank you so much for taking on this case. Pro bono. Were you appointed by the court? I was, yes. Thank you so much. We appreciate that so very much. Thank you for reminding me.