[00:00:02] Speaker 03:
The next case on calendar for argument and our final case is Essel versus County of Riverside.

[00:00:55] Speaker 00:
May it please the court, Catherine Huang for the appellant's defendants. I'd like to reserve five minutes for rebuttal. I'd like to address standing briefly. then qualified immunity, and then jurisdiction, unless the court would like me to address it in a different order.

[00:01:20] Speaker 00:
As to standing, the lower court erred with respect to holding standing. There was a material dispute of fact with respect to the standing as to VL.

[00:01:35] Speaker 00:
because the lower court failed to analyze the second prong of California Family Law 7611D. The court didn't address the multiple factors laid out in INRI-TR regarding whether or not the decedent, Yamas, openly held VL out as his natural child. The factors in INRI-TR, all of them should be answered in the negative, and that's not what the court found. The facts of the case, as undisputed, demonstrate that Yamas did not hold out VL as his natural child.

[00:02:15] Speaker 00:
With respect to the 14th Amendment standing issue as to VL and SL, under the 14th Amendment analysis, the court also erred.

[00:02:26] Speaker 00:
Taking the facts in light most favorable to the non-voting party, Wheeler sets out the standard, which is that even biological parents must maintain consistent participation in a child's life and participation in child-rearing activities for the relationship to be entitled to Fourth Amendment protection. That is not what we have here. The facts show that Vial Llamas did not demonstrate both consistent participation in either child's life or participation in child-rearing activities for the 14th Amendment protections to apply.

[00:03:09] Speaker 00:
Lair described it as significant custodial, personal, and financial relationship and none of which was established here. I'd like to next move on to qualified immunity. The district court erred in holding that Sergeant Hubachek and Deputy McGuire are not entitled to qualified immunity as to both volleys. I'd like to start with the second volley.

[00:03:35] Speaker 00:
The second volley demonstrates the video of the Star 9 undisputedly shows that The decedent, Llamas, was a serious and immediate threat to both officers and also to Lieutenant Walsh, who was present.

[00:03:52] Speaker 00:
The video shows that he pointed the gun directly at the officers, not once, but twice. And that is something that the court may consider as it is contradicted by any other evidence provided. put forth by the plaintiffs.

[00:04:08] Speaker 03:
Can you tell me one thing, and try to find the record, maybe I missed it. Is there anything in the record that shows whether or not Officer McGuire was aware that a police canine had been killed?

[00:04:22] Speaker 03:
The Officer Hubacek knew. I think the record shows that, or at least was told about it.

[00:04:28] Speaker 00:
Let me look at my notes. I believe there is...

[00:04:33] Speaker 03:
You can – on rebuttal, you can – if you find it, you can do that rebuttal.

[00:04:37] Speaker 05:
Okay. Sure. Does it matter? Would the collective knowledge doctrine apply to that question?

[00:04:45] Speaker 00:
Are you asking me whether or not the knowledge imputed to Hubachek is also imputed to McGuire? Correct. I believe that that would apply here. Okay.

[00:04:59] Speaker 00:
So that McGuire should have been aware also of the canine being shot.

[00:05:08] Speaker 00:
I'll move on to the first volley, unless you have additional questions.

[00:05:13] Speaker 01:
I didn't see in your opening brief where you argued that there's jurisdiction over an issue of fact because it was blatantly contradicted by the video.

[00:05:24] Speaker 00:
In our opening brief, we argue that there is jurisdiction over the materiality.

[00:05:29] Speaker 01:
Materiality only.

[00:05:30] Speaker 00:
Right. There is.

[00:05:31] Speaker 01:
In which case, we wouldn't be reviewing for blatant contradiction.

[00:05:37] Speaker 00:
I think you could find it under materiality because – and also, I think you could find it under the reasonableness of – the court's finding of reasonableness – It's not explicitly set forth in our opening brief as to the contradiction, but Williams v. Sparks was cited, and Williams v. Sparks is case law regarding uncontradicted evidence. And I think you, again, also find it under what is a reasonable inference based on the evidence of what the jury could find.

[00:06:09] Speaker 00:
Well, maybe we can focus on the arguments you made.

[00:06:12] Speaker 00:
Okay. In the briefing. With respect to the first volley, the lower court erred in holding that the actions by the officers were not objectively reasonable under their circumstances. We, again, argue, as Judge Song mentioned, regarding materiality of the facts. With respect to the first prong – excuse me, with respect to the first volley, I – The lower court erred in addressing facts that were not material and also addressing facts that – failed to address facts that we believed were material, including the knowledge that the canine was shot.

[00:06:56] Speaker 00:
I think that it demonstrates that it goes to the seriousness of Yamas's actions and that he was a serious threat. He was fleeing. He was wanted for crimes against – that were – those crimes were constituting crimes against other people that was harming other people including armed robbery and Officer McGuire was aware that he had used his gun in an armed robbery to beat someone he was also charged or wanted for molesting his niece and He shot the canine, which shows that the gun was live, he was willing to use it, and that he would be willing to use it against police officers.

[00:07:44] Speaker 00:
The canine is technically property, but it still demonstrates that he would be willing to shoot something live. and destroy something to not get caught.

[00:07:55] Speaker 00:
The dispatch also shows that he had said he didn't want to go back to jail. He was actively fleeing. This is like a pursuit that happened for several hours. The spikes in the road, he fled from the truck despite the spikes in the road.

[00:08:15] Speaker 00:
and even when the officers told him to drop the gun, he still didn't surrender. He was given multiple warnings, and he was aware that the police were after him, and that the lower court had mentioned something about the dispute of fact with respect to potential mental illness. That, we believe, doesn't discount the possibility and the fact that he was still a serious and immediate threat.

[00:08:42] Speaker 03:
I think you Lay out all the evidence shows that he was dangerous, has a long criminal record, not cooperative. On the other hand, he was shot fleeing.

[00:08:55] Speaker 03:
He was not facing the officers at the time because he was shot in the butt. So obviously his back was turned to the officers. And when you look at the video, the body cams, you really can't tell much. At least I couldn't tell much. It's kind of too far away. Things are obscured. The helicopter video shows a little bit more, and maybe you could read it both ways. One, he's turning around, it looks like. I guess one way you could say is an officer thought that he has a gun and might shoot the officer. On the other hand, it might be he wasn't so blatant.

[00:09:27] Speaker 03:
He's turning around and pointing the gun. Maybe he's just looking to see where the officer is. I mean, given that potential ambiguity, why wouldn't this be a fact issue for the jury to decide whether it was reasonable?

[00:09:41] Speaker 00:
I think the video shows that he definitely turned twice, and it doesn't completely support plaintiff's view that his gun was to his head the entire time. The gun actually disappears from view in the video, so...

[00:10:00] Speaker 00:
The video also is, the star nine is about 2,000 feet, almost 2,000 feet above the head.

[00:10:05] Speaker 00:
the ground. The officer's video is, body-worn camera video is obviously not great. And what it does do, both actually corroborate the perspective of the officers, and that is what the law requires. The law requires to analyze the officer's perspective, what a reasonable officer would do in that, in what officers Hubachek and McGuire would do at that time. And when you're thinking about it, they viewed him turn, but they didn't know he was going to turn back.

[00:10:41] Speaker 00:
And I think what it shows is that the officers' perspectives from their deposition, taking Graham v. Connor, we have to take their perspective, is that they believed that he had turned their gun towards them, and they saw the gun. And the law asks us to look at what the officers believed in, a reasonable officer would believe in that perspective, and that is reasonable.

[00:11:06] Speaker 05:
With the threat, it was clear that at least one of the officers thought that he posed a threat to anyone that was in the house that he was running towards.

[00:11:15] Speaker 05:
Would that be sufficient enough justification for the shots?

[00:11:19] Speaker 00:
Yes. I think that the totality of the circumstances is what should be considered. Right. And the fact that it is a residential area, notwithstanding that it was also rural, it was without a doubt residential. And I think the video actually undisputedly shows that that house had the lights on and there was a car park there. And so there was evidence in the record that McGuire had – done a search a couple hours earlier that there was two individuals in that house.

[00:11:50] Speaker 01:
Well, I'm a little bit concerned because the district court, going back, said there was a reasonable dispute to go to the jury, a genuine dispute about whether the defendant was walking away or turning to the... And again, you argued in your opening brief, you didn't argue that we have jurisdiction to review those findings, which our review here is jurisdiction here is limited in interlocutory review. So you argued about materiality, which I understood you to be saying, even accepting all of the district court's findings about what were the genuine disputes of material fact, even if we construe all those disputes in favor of the plaintiffs, we should still get qualified immunity.

[00:12:33] Speaker 01:
But I would like you, you're now shifting to saying we should revisit what she said was a genuine dispute of material fact and That's fair.

[00:12:46] Speaker 00:
I would say that, again, I would just focus on the fact saying that you could find it under both materiality and that you can take these facts presented because it's uncontradicted by video with Williams v. Sparks, and it's not a reasonable reference to make, and that's ultimately the holding of the court as to that a reasonable juror could find this.

[00:13:12] Speaker 01:
I would probably entertain that argument if you had made it in your opening brief.

[00:13:15] Speaker 00:
I think that's fair.

[00:13:17] Speaker 01:
So I'm prepared to talk about the arguments you did make in your opening brief, which is even assuming that all the disputes that the district court found were genuine were resolved in defendant's favor, they would still be entitled to qualified immunity.

[00:13:34] Speaker 00:
Right. I think it's a fair point. And I'll give our argument as to the second prong, clearly established right at the time. And I believe that the three cases that the court cited to find the second prong of qualified immunity are defined at too high a level of generality or not specific enough to demonstrate that the right was clearly established at the time. I think none of those cases All those cases can be clearly distinguished.

[00:14:05] Speaker 00:
In George V. Morris, it was a man with a wheelchair, sorry, a walker, and his gun was pointed to the ground. And in Aguirre, it was a bat. And in the state of Lopez, Gale House, it was a fake AK-7.

[00:14:24] Speaker 05:
So just, you know, taking Judge Sun's point, if we assume that there was a question of whether or not the guns were pointed at the officers, but that it seems that it's clearly uncontested that he was perceived as a threat to anyone that was living in the residence.

[00:14:42] Speaker 00:
Mm-hmm.

[00:14:43] Speaker 05:
Is that enough to establish qualified immunity?

[00:14:46] Speaker 00:
I think under these facts, that would be a really important factor under the totality of circumstances because the officers are not just protecting themselves. They are protecting the public, and that is a major concern. There was basically no way to perimeter him, as in, I believe it was George, where he was in a house, and there was no predicting the actions that he was going to take, considering His sign of pointing the gun to his head shows a man that is desperate.

[00:15:17] Speaker 00:
He had already killed a dog. So it demonstrates, I think, the public safety factor that is a really important factor in addressing reasonableness.

[00:15:25] Speaker 05:
Second question is if we were to agree with you on qualified immunity, would we need to reach the standing issues?

[00:15:33] Speaker 00:
No.

[00:15:33] Speaker 05:
No, because everything would be dismissed.

[00:15:35] Speaker 00:
Yes. Okay.

[00:15:37] Speaker 00:
I'd like to revert for 30 seconds or 25 seconds.

[00:15:40] Speaker 03:
We'll give you two minutes because I know we ask you a lot of questions.

[00:15:43] Speaker 00:
All right. Thank you.

[00:15:58] Speaker 02:
Good morning, Your Honors.

[00:16:01] Speaker 02:
Benjamin Levine, here for the plaintiffs and the appellees, SLVL and Carolyn Campbell.

[00:16:07] Speaker 02:
I'd like to briefly address jurisdiction, which I think is an important issue in this case that wasn't very much addressed before, before turning to qualified immunity, and then to the state law claims, and then if there's time after that, to standing as well.

[00:16:23] Speaker 02:
With respect to jurisdiction, as we outlined in our brief, and I think was touched on to some extent before by Judge Sung, this court's precedent and the Supreme Court's precedent has constrained the scope of interlocutory appeals of qualified immunity. And this court has set out a clear rule that in order to appeal qualified immunity denials, defendants are required to concede the facts and argue only the law. And that's clearly not what's been done here.

[00:16:51] Speaker 02:
There are a couple of important ways that the defendants have failed to conform to that rule. The first one being that there are a host of material disputes of fact that the district court identified in their opening brief. The defendants have broadly asserted that those disputes are unsupported by the facts, and that's a clear challenge to those factual findings.

[00:17:14] Speaker 01:
I think we understand the jurisdictional limitations, so I'll get to what my concern is. I think even at if I resolve all the factual disputes identified by the district court in plaintiff's favor, I look at the precedent you cite and the precedent I look for independently, I don't see a case involving, for example, with respect to the second volley, where a court has clearly established that a victim who Well, someone who is essentially in a prolonged attempt to escape is armed, has a gun drawn, is shot, but is still not incapacitated.

[00:18:00] Speaker 01:
And, you know, the cases you cite essentially involve knives or bats, which I think are materially different from a gun with respect to the question of danger to the public.

[00:18:14] Speaker 02:
Sure, Your Honor. With respect, I understand, Your Honor, to be referring to the second volley specifically and on the clearly established prong. I mean, you know, there are a number of cases that establish that continuing to shoot a suspect who's already down and no longer poses a threat.

[00:18:29] Speaker 01:
Do any of those involve a gun drawn?

[00:18:33] Speaker 02:
not the the we've cited from the ninth circuit there are some district court opinions um but also i think more broadly the cases that we've cited for the first volley of shots uh support the less uh how to put it serious proposition regarding what somebody who's already been shot already down continues to not pose an immediate threat to the officers at the time that the shots are fired Given that he's not facing the officers, he's down on the ground, chest down, and viewing the video, drawing inferences from the video in the plaintiff's favor, as reasonable juries could, a jury could conclude that the gun is not pointed at the officers at the time that the shots are fired.

[00:19:14] Speaker 05:
The second one or the first volley?

[00:19:16] Speaker 02:
Both, but I'm addressing the second volley. Certainly for the first volley.

[00:19:20] Speaker 05:
Even though the officer says the gun's pointing right at us?

[00:19:24] Speaker 02:
Well, I think that goes to the jurisdictional point because that's the an officer said guns pointed right at us after all the shots were fired while the officers were running up to the decedent and were just a few feet away. And the decedent had sort of flopped over after all the shots had been fired. He's not in the same position that he was. for any of the shots. And so I don't think that we can just assume that that's the exact position that he was in when the shots were... But we can look at the video, though, right?

[00:19:52] Speaker 04:
I mean, we can take notice of the video.

[00:19:55] Speaker 02:
Well, yeah, the video is in evidence, but that said, the defendants have not argued that the...

[00:20:01] Speaker 02:
district court's factual determinations are blatantly contradicted by any objective evidence, as Judge Sung pointed out.

[00:20:07] Speaker 03:
But we can look at the video and come to a different conclusion, can't we?

[00:20:12] Speaker 02:
I think the court can view the video and it shows what it shows, but I think to the extent that anything in the video is ambiguous, this court's precedent supports that Different jurors could view that in different ways, and that can itself, even from the same video, give rise to a dispute of material fact.

[00:20:30] Speaker 03:
But for the second volley, I mean, the video does show he's on the ground and he's holding the gun. I mean, he got shot, but he didn't drop the gun. He's holding the gun. He's on the ground. It is pointed.

[00:20:41] Speaker 02:
It shows that he falls on the ground. The gun's still in his hand. He falls on his right side. And I guess as a consequence of that, initially the gun is pointed generally to the south. not necessarily directly towards the deputies. But then that's not when the deputies fired their second volley. Importantly, he starts to – he sort of goes onto his left side, starts to crawl, faces west. The deputies are to his south, not to his west. And he pulls the gun underneath his body so that viewing the video from the helicopter in the light most favorable to the plaintiffs, as we have to do here on summary judgment, a reasonable inference is that the gun is not directly pointed at the deputies at that time.

[00:21:21] Speaker 02:
his torso is in between the barrel of the gun and the deputy's, and I think it doesn't show an immediate threat from him at that time viewing the video and other evidence in the light most favorable to the plaintiffs.

[00:21:35] Speaker 01:
If I understand correctly, with respect to the second volley, even if all the factual disputes identified by the district court resolved in favor of the plaintiffs, that It's undisputed that after the first shot, plaintiff was still moving, still trying to escape, still had the gun in his hand, still drawn. So he was not motionless. He was not incapacitated. And the step two of the qualifying immunity analysis, I think you're saying you don't know of any case in which we've said that at that point it was unreasonable to shoot again.

[00:22:15] Speaker 01:
The cases I've looked at where we've said it was unreasonable to shoot again, the plaintiff was holding something like a knife, which was we distinguished from a case in which the, excuse me, not the plaintiff, the decedent was holding a gun, which because the threat posed by someone who's been shot but holding a knife is materially different from someone holding a gun. So I'm asking whether it was clearly established at the time that someone who had – and we have to look at this whole picture – someone who had been – officers were trying to arrest for a serious crime, who was in a long, drawn-out attempt to escape, had – Officers had reason to believe had used the gun during this escape and then was shot, but was still moving and had a gun.

[00:23:10] Speaker 01:
I don't see any case you cited or even a combination of cases saying that it was clear would be unreasonable to think that he still posed a danger. I mean, I am assuming that a jury could find that was an excessive force. We have to find whether that was that was clearly established at the time.

[00:23:30] Speaker 02:
I understand, Your Honor. I think that there are multiple cases that we've identified that establish that when somebody has a gun, whether or not they're incapacitated but are not using the gun in a threatening way, are not making a harrowing gesture, furtive movement, things like that, not orienting the gun toward deputies at the time the shots are fired – That use of deadly force under those circumstances is excessive regardless.

[00:23:54] Speaker 01:
Right, but I read the cases you've cited, and none of them involve the defendant – I mean, excuse me, sorry, the decedent, where they were – I mean, here the problem is none of them involved someone who is essentially evading arrest for a serious crime, an armed robbery, and had – used their gun. I mean, not the cases where, you know, elderly man, you know, where I think their best case, the man with the rifle, there was no, things happened very quickly. He was not being arrested.

[00:24:25] Speaker 01:
He was not, there was no reason to believe he had used his arm. I think the fact that there was reason to believe this scene used his firearm in this instance is a pretty, during the interaction with the police, is a pre-material fact.

[00:24:43] Speaker 02:
Sure. We have Harris versus Roderick, Your Honor, where the Ninth Circuit held the use of deadly force against somebody who had shot and killed an FBI agent the day before at the same location as part of the same extended standoff during Ruby Ridge in Idaho was excessive. And we cited that in our brief. We cited that to the district court below. And in that case, he's, you know, got his back turned but i think that these cases that establish that somebody who has their back turned and in other ways don't pose an immediate threat with regard to a gun also clearly established the the less extreme proposition that somebody who's no longer a threat because they're not only not facing and pointing a gun towards deputies but also already shot down on the ground may be still able to move your honor but still not able to pose an immediate threat by virtue of moving around and, again, not pointing the gun.

[00:25:35] Speaker 02:
And I just want to – I also think it's important – we're focusing on the second volley here. I'd like to just quickly address the first volley. As was discussed a few minutes ago, the undisputed facts that the district court found, or at least the genuine disputes of fact that the district court identified, show that for the first volley, the decedent's back was to the officers. He's 150 feet away. He's got the gun pointed to his own head. It's true that he briefly looked to the left and then to the right a few seconds before the shots were fired, but in the seconds leading up to that first volley of shots, he continues facing forward, gun to his head.

[00:26:13] Speaker 02:
There's no verbal threats. He's not pointing the gun toward the deputies. And I think the fact that the deputies testified in their depositions that They saw him at the time of the shots were fired, turning around backward, pointing the gun at them, which is clearly not shown on the video, raises credibility issues with regard to what they claim they saw for the second volley, specifically with regard to Deputy McGuire.

[00:26:37] Speaker 02:
And I think, you know, the same clearly established law that we said in our brief, as we were just discussing, as well as George and Lopez. clearly establishes the unconstitutionality of the first volley. I want to address one point.

[00:26:49] Speaker 05:
Yeah, even if it's possible that he wasn't pointing the gun at them at the time of the shot, but he did pose a threat to anyone that was any residents in the house that he was approaching. Why was it not reasonable for the officers to think that to stop that danger they had to shoot him?

[00:27:05] Speaker 02:
Sure. Well, number one, the defendants have not argued either in their motion or in this court that the officers could have shot based on a threat to anyone other than the officers themselves. They've only argued that the officers shot based on a threat to them because, again, that he was pointing the gun towards them. And we think, as we argued in our brief, that any sort of fleeing felon argument is both forfeited and waived because it wasn't argued in the motion, wasn't argued in either brief on appeal. And with regard to the House, Your Honor, we tried to address this in the brief.

[00:27:37] Speaker 02:
Just to quickly explain, this is sort of a large property. There's a blue house to the left of the decedent as he's running.

[00:27:44] Speaker 05:
It's very clear that that was the concern of the officer, at least I forget the name of the officer with the body cam. Lieutenant Walsh. Yeah, he said we've got to stop him before he gets into the house essentially.

[00:27:55] Speaker 02:
Sure. Well, the officers all each testified that they could not have shot him and would not have shot him based on their training if he had not turned around and pointed the gun towards them, which is disputed. They said that if he had not, they testified that based on their training, if he had not done that, they would have continued to pursue him. He's not right up on the doorstep of any house. He's not even approaching the Blue House. He's running parallel to it and past it, as we can see based on the video.

[00:28:19] Speaker 05:
He's not getting past it.

[00:28:20] Speaker 02:
I thought he was running up the driveway to get... The driveway has a fork, Your Honor, and so the left... Going left on the fork would have led to the driveway to the carport in the blue house. He took the right and was going, and you can see this clearly on the helicopter video from the time of the shots.

[00:28:37] Speaker 05:
Assuming that the officers believe that there was a threat to anyone that is in the residence, why would they not be entitled to qualified immunity based off of that?

[00:28:46] Speaker 02:
Well, number one, Your Honor, again, it's forfeited and waived.

[00:28:49] Speaker 05:
I disagree with that.

[00:28:51] Speaker 02:
Okay. Well, one reason would be, again, based on their training, they didn't think they could shoot based on that.

[00:28:59] Speaker 05:
It's not – That's training – I mean you have to tell me why it's unreasonable.

[00:29:02] Speaker 02:
Sure. Well, this court has held in Drummond that training can be relevant to whether the use of force is reasonable and also as to clearly establish law. And also as well, Your Honor, I mean there's no – it's hard to say that they're an immediate – he's an immediate threat to people in the House when he's not going in the direction of the House.

[00:29:22] Speaker 02:
I think that a reasonable juror viewing this video could conclude that he's not running towards the House, and that's a disputed issue.

[00:29:29] Speaker 05:
Wouldn't we have to review whether a reasonable officer thought he was going towards the House?

[00:29:34] Speaker 02:
Well, I mean, it's not really a subjective analysis, Your Honor. I just want to be careful about that, what a reasonable officer thought. A jury would have to determine that question, whether based on the evidence a reasonable officer might have believed that,

[00:29:49] Speaker 05:
Assuming it weren't immunity, don't we decide whether or not a reasonable officer would have perceived this threat?

[00:29:56] Speaker 02:
I think it might depend on which prong we're talking about here, Your Honor. With regard to prong one, I mean, this is a standard excessive force analysis that the disputed facts on this issue would have to go to a jury.

[00:30:08] Speaker 02:
We think that a reasonable jury could be – and just to be clear, the clearly established law analysis to prompt two is still based on resolving all the disputed facts and permissible inferences in plaintiff's favor, including ambiguities in the video that have to be resolved in our favor.

[00:30:27] Speaker 03:
Should we consider – one big fact here is in terms of gram factors and potential risk to not the officer's – but also to potential people living in the houses, is the fact that a police canine was shot and killed. I mean, that's a clear overlay that the suspect already had used deadly force to kill a police canine.

[00:30:51] Speaker 02:
We had something worse, again, in Harris v. Roderick, Your Honor. He had shot and killed an FBI agent. And also, too, going back to the A argument from before, only one of the officers had information that a dog had possibly been killed is what the defendants argued. They haven't argued that Deputy or Sergeant Hubacek had that information. Neither of the officers were actually present in the area when that shot was fired. So in a large respect, it's hindsight information.

[00:31:18] Speaker 02:
And I see him at my time.

[00:31:20] Speaker 03:
I mean the Harris – the Ruby Ridge case is different because one key thing the Ninth Circuit says there is the guy posed no threat at all at the point. He was just running to his cabin, didn't make any gesture, didn't make any movement. And there – at that point, even though there was a shootout – previous day you can't shoot a guy who's fleeing.

[00:31:40] Speaker 02:
Same here. Yeah, it's the same here. He's got a gun. He's not facing the officers.

[00:31:44] Speaker 03:
That's the key difference. He has a gun. He's making movements. He's going to other people. He's going to his own cabin, Harris. I don't think Harris is at least definitely on the clearly established prong. I don't think it really helps you.

[00:31:55] Speaker 02:
We really think that resolving the facts in plaintiff's favor, Your Honor, a reasonable jury could believe that an officer would not have seen him to be running towards an occupied house, that blue house. The deputies testified they couldn't have shot him if he – if he didn't turn around, that they couldn't have shot him just for fleeing. Whether or not to a house, this is different than the Blanford-type situation where he's literally at the doorstep about to go in.

[00:32:21] Speaker 02:
And I'd like to, I know, seeing I'm at my time, I just wanted to address the state law claims, if I might, for a moment.

[00:32:28] Speaker 05:
Yeah, a question. If the officer entitled to qualified immunity, would we need to reach the standing questions and things of that nature?

[00:32:38] Speaker 02:
Well, it depends. I guess it would depend on the basis for if the court finds that the law was not clearly established, that doesn't do anything to our state law claims. There's no qualified immunity under state law in California.

[00:32:52] Speaker 02:
And in addition to that, there are different legal standards that apply to at least some of the state law claims, especially negligence, as this court has recognized in Tavares.

[00:33:01] Speaker 05:
What about the 14th Amendment claim?

[00:33:04] Speaker 02:
I mean, I think that The 14th Amendment claimed it depends on a deliberate indifference standard, we argued. So I guess if the court found that the law was not clearly established for the 4th Amendment, that probably would affect the 14th Amendment as well. It wouldn't, again, affect any of the state law claims, which aren't properly subject to interlocutory appeal in the first place, as we argued in our brief.

[00:33:33] Speaker 02:
Thank you, Your Honors. Thank you.

[00:33:50] Speaker 00:
I wanted to address the court's question with respect to whether Officer McGuire knew about the canine being shot. And Lieutenant Walsh's body worn camera video, he's there present when they were talking about the canine not coming back and the shot being heard. And then also in his deposition, ER 728 line 13 to 14, he's talking about how the canine, they were working on the canine who had a lethal wound.

[00:34:20] Speaker 00:
about 200 to 300 yards behind him.

[00:34:24] Speaker 00:
And so I'd like to briefly address a couple of comments by my friend here. I think that the standard is not whether or not there was an immediate threat to the people in the house just solely on its own. I think that's one of the factors that the officers would take into consideration under the totality of the circumstances. is whether or not he's a serious and mediant threat to both them, the people, as well as to the officers, and that it was a residential area.

[00:35:00] Speaker 00:
And with respect to this disputed issue as whether or not he turned or not turned or what the gun was doing with respect to the first volley, I think George V. Morris is on point. George V. Morris says, if the person is armed or reasonably suspected of being armed, Affirmative movement, harrowing gesture, or serious verbal threat might create an immediate threat. And in this situation, the officers testified that they believed he was a threat.

[00:35:34] Speaker 00:
They had plenty of opportunity to shoot him. when they first saw him on the road, walking, and then they followed him up the road, and they had no idea what he was going to do.

[00:35:47] Speaker 00:
And then just briefly, I want to correct something that was in our opening brief that was a mistake, and we apologize. I didn't... corrected on the reply brief. We're citing to Sergeant Hubachek's body-worn camera for audio statement. That's incorrect. It should be a citation to Lieutenant Walsh's body-worn camera. And unless the court has any more questions, that's it for me.

[00:36:11] Speaker 03:
Great. Thank you. Thank you both for the helpful argument. The case is submitted, and we are recessed for the day.