[00:00:07] Speaker 01:
Thank you, your honor.

[00:00:08] Speaker 01:
May it please the court.

[00:00:10] Speaker 01:
My name is Stephen Benedetto and I represent David Socoscio, the appellant in this matter.

[00:00:15] Speaker 01:
This appeal concerns the proper application of Rule 56 in an excessive force context.

[00:00:22] Speaker 01:
On May 31st, Officer Eric Gomez fired a 40 millimeter impact projectile round at David Socoscio, struck him in the forearm,

[00:00:34] Speaker 01:
fractured his forearm, and that injury ultimately required corrective surgery.

[00:00:39] Speaker 01:
Those facts are not in dispute.

[00:00:41] Speaker 01:
It's also not in dispute that Mr. Secoccio was not posing a threat to police.

[00:00:46] Speaker 01:
Despite that, the district court found that the use of force was minimal to moderate, despite the injury, despite the nature of the round, and despite the fact that Officer Gomez fired the round from approximately 100 feet away at night in the dark against a moving target.

[00:01:04] Speaker 01:
The fundamental error that occurred at the district court was the determination and the classification of that use of force as minimal to moderate.

[00:01:13] Speaker 01:
The prior case law of this court, including but not limited to the Dwele case, Dwele v. Rutherford, as well as Nelson v. City of Davis, establishes that that use of force is intermediate use of force.

[00:01:28] Speaker 01:
use of force that is more than minimal and may constitute deadly force, but not necessarily.

[00:01:34] Speaker 01:
In this case, the nature of the shooting did reach that level, and the court took that issue out of the jurors' hands improperly on summary judgment.

[00:01:43] Speaker 00:
When viewing a case like this, where the fundamental claim is excessive force, do we take into consideration

[00:01:57] Speaker 00:
the result of the use of that force.

[00:01:59] Speaker 00:
In other words, very serious injuries that your client sustained.

[00:02:06] Speaker 00:
Is that part of the equation?

[00:02:08] Speaker 01:
It is, Your Honor.

[00:02:09] Speaker 00:
Under the... What case supports that?

[00:02:12] Speaker 01:
Falarca v. Burgino, as well as the case that the district court itself cited.

[00:02:21] Speaker 01:
Falarca v. Burgino is 891, Federal 3rd, 809.

[00:02:26] Speaker 01:
And the district court itself noted that the impact of the injury under the Santos case can relate back to and ultimately inform the level of the force that was used and the classification of that force.

[00:02:41] Speaker 01:
Ultimately, it simply restates common sense that if a projectile causes a serious bodily injury, an officer ex post facto cannot say,

[00:02:52] Speaker 01:
the projectile was incapable of causing that injury.

[00:02:55] Speaker 01:
Clearly, it caused that, and the district court noted there is no dispute about causation of the case.

[00:03:01] Speaker 00:
The projectile, I know this is hypothetical, but if the projectile had missed your client entirely, would it still be the use of excessive force?

[00:03:10] Speaker 01:
I don't believe so, Your Honor, because I believe, at least when it comes to shooting lethal munitions, firing bullets at individuals.

[00:03:19] Speaker 00:
My question assumes that the officer was intending

[00:03:23] Speaker 00:
to have the projectile hit your client.

[00:03:26] Speaker 00:
But for the purpose of the hypothetical, let's assume that his aim wasn't good and he missed.

[00:03:32] Speaker 01:
And I think 9th Circuit case law does require an actual impact to state an excessive force claim.

[00:03:37] Speaker 01:
Having said that, your question highlights another issue, which is the officer's subjective intent in terms of where they're aiming at.

[00:03:45] Speaker 01:
does not necessarily inform the classification of the force actually used.

[00:03:50] Speaker 01:
When the force used is analyzed under Graham, we're looking at a risk assessment.

[00:03:56] Speaker 01:
What are the possible outcomes here?

[00:03:58] Speaker 01:
And the way Officer Gomez was trained and the way this weapon was designed is that the projectile is supposed to be shot from at least five feet, no more than 150 feet.

[00:04:08] Speaker 01:
The further the projectile is shot from, the less reliable it is.

[00:04:12] Speaker 01:
Of course, when you're dealing with a moving target,

[00:04:14] Speaker 01:
you're dealing with shooting at night, there's variables in there.

[00:04:17] Speaker 01:
And when the manufacturer of this weapon system instructs and the officers are trained that this weapon can actually be fatal, if it strikes someone in the face, if it strikes them in the head, if it strikes them in the spine,

[00:04:29] Speaker 01:
then we're looking at a risk assessment of the use of the weapon that's significant.

[00:04:33] Speaker 01:
And if we go back to the Nelson v. City of Davis case, what we see is an officer that shot a student in the eye with a pepper ball.

[00:04:41] Speaker 01:
That was not intentional.

[00:04:42] Speaker 01:
The officer was not aiming for the student's eye.

[00:04:44] Speaker 01:
The officer was attempting to shoot the pepper ball at the student, possibly even at the student's feet and use the weapon properly.

[00:04:51] Speaker 01:
But this court, the Ninth Circuit, determined in that case that the use of force was excessive because it was a known risk, that if it did strike a suspect in the face, it could cause a serious injury.

[00:05:03] Speaker 00:
What's your best case for the idea that the shooting violated Sakashio's Fourth Amendment rights?

[00:05:11] Speaker 01:
I think we have to kind of rely on analogous cases.

[00:05:15] Speaker 01:
This court has never determined whether a 40-millimeter impact round constitutes excessive force.

[00:05:22] Speaker 01:
However, if we look certainly at the Nelson v. City of Davis case, Your Honor, what we see is a less volatile weapon system, a pepperball system that's not intended to create a traumatic impact to the body.

[00:05:35] Speaker 01:
It is solely... But does.

[00:05:36] Speaker 01:
but does when it shot at somebody.

[00:05:39] Speaker 01:
And this weapon system is created, the testimony here is undisputed, is intended to create a traumatic impact to the body.

[00:05:46] Speaker 01:
It's intended to create pain compliance and then deliver a load of O.C.

[00:05:51] Speaker 01:
tep-isom spray.

[00:05:52] Speaker 00:
Your client was, this was what, one or two nights after the George Floyd murder?

[00:05:58] Speaker 01:
It was the fourth night after the murder.

[00:06:00] Speaker 00:
And your client, the governor of Arizona, issued a curfew?

[00:06:05] Speaker 00:
That's correct.

[00:06:05] Speaker 00:
And your client was out after the curfew.

[00:06:08] Speaker 01:
He was, Your Honor.

[00:06:09] Speaker 00:
No question but that he knew that.

[00:06:12] Speaker 01:
It's undisputed.

[00:06:13] Speaker 01:
In fact, I think in the video that the defense submitted, there's an acknowledgment that he was aware that it was after curfew.

[00:06:21] Speaker 02:
All right.

[00:06:23] Speaker 02:
Go ahead.

[00:06:23] Speaker 02:
Counsel, I just wanted to ask you, what effect does that have on our analysis of whether or not there was excessive force, the fact that he was out after curfew?

[00:06:35] Speaker 01:
Thank you for that, Your Honor.

[00:06:36] Speaker 01:
That's exactly where I was headed.

[00:06:38] Speaker 01:
I think it's highly relevant because it goes to the gram analysis of the severity of the crime.

[00:06:43] Speaker 01:
The curfew, as defined by Governor Ducey in 2020, was a misdemeanor violation.

[00:06:48] Speaker 01:
There's no allegation here and there's no evidence that Mr. Socoscio was ever violent.

[00:06:53] Speaker 01:
There's no evidence.

[00:06:54] Speaker 01:
In fact, the evidentiary inferences are that he was not engaged in any type of riotous activity.

[00:07:01] Speaker 01:
The videos submitted by the defense show him walking through the streets, certainly after curfew, and violating that misdemeanor emergency order, but not engaged in any type of violent or threatening behavior.

[00:07:14] Speaker 01:
So under Graham, we're dealing with a

[00:07:16] Speaker 01:
essentially a low-level misdemeanor that is akin to trespassing under Arizona law.

[00:07:21] Speaker 01:
We're dealing with a Class 1 misdemeanor.

[00:07:23] Speaker 01:
Trespassing, again, back to the Nelson v. City of Davis case is not enough to justify more than a minimal use of force.

[00:07:31] Speaker 01:
And so that's where the violation of the emergency order ties in, is with Graham.

[00:07:39] Speaker 01:
That also washed over in this case

[00:07:41] Speaker 01:
with respect to the court's qualified immunity analysis.

[00:07:44] Speaker 01:
That goes to the issue, of course, of whether this was clearly established.

[00:07:49] Speaker 01:
If we look back again, I think the Nelson case really is instructive.

[00:07:54] Speaker 01:
in Nelson and also in Duerle, the Ninth Circuit specifically advised and guided officers that this type of use of force, firing projectiles at non-violent, non-threatening subjects suspected only of misdemeanor violations is excessive.

[00:08:13] Speaker 01:
And I think this officer had every reason to know that, given that those cases were 10 and 20 years old at the time of the shooting.

[00:08:22] Speaker 01:
I think that largely covers the points I intended to hit.

[00:08:25] Speaker 01:
If the panel has any additional questions I've not answered, I'm happy to field them.

[00:08:29] Speaker 01:
Otherwise, I'll reserve the rest of my time for rebuttal.

[00:08:31] Speaker 02:
All right.

[00:08:31] Speaker 02:
Thank you, counsel.

[00:08:32] Speaker 01:
Thank you.

[00:08:32] Speaker 02:
We'll hear from defendants.

[00:08:42] Speaker 03:
Good morning.

[00:08:43] Speaker 03:
May it please the court?

[00:08:44] Speaker 03:
My name is Lori Burke, and I represent the defendant at Pauley.

[00:08:49] Speaker 03:
Eric Gomez, officer with the City of Phoenix Police Department.

[00:08:55] Speaker 03:
Let me correct a couple of things that Mr. Benedetto stated.

[00:08:59] Speaker 03:
One is that his client was a non-violent, non-threatening suspect.

[00:09:04] Speaker 03:
His conduct at the time of the use of force was threatening, not to the officer at that point in time.

[00:09:12] Speaker 03:
Officer Gomez's testimony was that when the air unit announced that a group

[00:09:18] Speaker 03:
that had been involved in the riot at 7th Street in Roosevelt was headed their way.

[00:09:23] Speaker 03:
They had broken off and were headed their way running at the officers.

[00:09:27] Speaker 03:
Officer Gomez did fear for his safety and the safety of his fellow officers.

[00:09:32] Speaker 03:
Once Mr. Sacocho and his other people who he was running with started to scale the wall, was running in the other direction, his concern then

[00:09:45] Speaker 03:
transition from concern for his own safety to concern for homeowners and specifically in the neighborhood where Mr. Sacocio was scaling the wall to a residential fence to get into a residential area.

[00:10:00] Speaker 03:
Over the four days of unprecedented civil unrest that Officer Gomez had worked in each day, he had seen and heard about

[00:10:12] Speaker 03:
individuals trying to break into people's homes, setting fires to structures, causing other damage, and he had serious concerns about the well-being of any residents whose home Mr. Sikocho may intend to break into.

[00:10:28] Speaker 03:
And if you listen to the body-worn camera video for Officer Gomez from right after he used the force on Mr. Sikocho, you can hear the air unit announced

[00:10:41] Speaker 03:
that there are three people trying to break into a house.

[00:10:44] Speaker 03:
So that corroborates the reasonableness of the concern that Officer Gomez had.

[00:10:51] Speaker 03:
And the Forrester case is clear that while Mr. Sacocio was only suspected of committing misdemeanors at that time, including trespass, which, notwithstanding that it's a misdemeanor, was serious in these days of the civil unrest, in the Forrester case,

[00:11:10] Speaker 03:
The court rejected that argument, saying that even though many of the crimes were misdemeanors, the city's interest in preventing their widespread occurrence was significant.

[00:11:21] Speaker 03:
These are people who were out past the emergency curfew.

[00:11:26] Speaker 03:
And Mr. Benedetto directed you to Mr. Sococio's friend Rebecca's video.

[00:11:34] Speaker 03:
They're out boasting.

[00:11:35] Speaker 03:
They're trying to get other, they're agitating.

[00:11:38] Speaker 03:
They are trying to encourage other people after curfew and violation of the law to come down and meet with them and continue to march.

[00:11:47] Speaker 03:
And Mr. Sokocho, according to the video, was involved in riotous activity.

[00:11:51] Speaker 03:
He was one of the people that was headed toward the freeway.

[00:11:55] Speaker 03:
They were trying to take over the freeway with the other rioters.

[00:11:59] Speaker 02:
Are you saying that was what was happening at the point when he was shot?

[00:12:04] Speaker 02:
with the beam back?

[00:12:05] Speaker 02:
Was he approaching the freeway?

[00:12:07] Speaker 02:
Was that?

[00:12:07] Speaker 03:
No.

[00:12:08] Speaker 02:
So that was a previous time.

[00:12:09] Speaker 03:
They had run, so Officer Gomez had been at that area and then they drove away from that area and then pulled over that white truck that had the six occupants.

[00:12:20] Speaker 03:
And Officer Gomez was dealing with those six occupants when the air unit announced that that group that had broken off from the people at the Seventh Street in Roosevelt were coming their way at them.

[00:12:33] Speaker 03:
So he was informed that they were part of that group.

[00:12:37] Speaker 03:
I'm sorry, Your Honor.

[00:12:38] Speaker 03:
Go ahead.

[00:12:38] Speaker 02:
I was going to ask you, do you agree or disagree with the opposing counsel's argument that the district court mischaracterized the level of force that was used?

[00:12:49] Speaker 03:
No, not at all, Your Honor.

[00:12:51] Speaker 02:
And... Do you agree or disagree?

[00:12:53] Speaker 03:
I disagree with Mr. Benedetto.

[00:12:55] Speaker 03:
I agree with the court.

[00:12:57] Speaker 02:
So you think the court's use was minimal?

[00:13:00] Speaker 03:
Yes.

[00:13:00] Speaker 03:
If you take a look at the product specification, it's at ER-231.

[00:13:10] Speaker 03:
There is a box to the left that says warning.

[00:13:13] Speaker 03:
And it states, when used in accordance with CTS training guidelines, CTS is the manufacturer.

[00:13:21] Speaker 03:
And the individual agency's policy, they are intended to cause varying degrees of pain and injury which are temporary.

[00:13:27] Speaker 03:
And then it goes on to say, in rare circumstances, if used incorrectly, CTS less lethal products may cause damage to property, serious bodily injury, or death.

[00:13:40] Speaker 03:
Therefore, any person using the force option depicted on this page should receive proper training to ensure the safest and most effective use.

[00:13:48] Speaker 03:
And the improper use is shots to the head, neck, thorax, heart, or spine

[00:13:55] Speaker 03:
That is it.

[00:13:56] Speaker 03:
Other than that, it is not intended to cause injury.

[00:13:59] Speaker 03:
It's not known to cause injury.

[00:14:01] Speaker 03:
We have cited to Sergeant McBride's declaration where he said he had never seen an injury beyond bruising from this.

[00:14:13] Speaker 03:
We have Lieutenant Moore's testimony.

[00:14:16] Speaker 03:
who has, where he has personally been shot at a much closer distance than 100 feet where he's only sustained bruising.

[00:14:25] Speaker 03:
And we have Officer Gomez's testimony where he had only seen bruising from this type of force.

[00:14:33] Speaker 03:
And so the court, in the district court's opinion, cited to the case law that states while the injury may be more severe than typical for this type of force, that does not transform

[00:14:46] Speaker 03:
defendant's use of force into something other than a single correctly deployed 40 millimeter OC impact round.

[00:14:55] Speaker 03:
So unanticipated injuries do not transform a reasonable use of force to an unreasonable use of force.

[00:15:03] Speaker 00:
Do we know how much time elapsed between the time that your client was advised that this group was moving away from the freeway?

[00:15:16] Speaker 00:
and his encounter with Mr. Saccascio?

[00:15:19] Speaker 03:
It was very quick, and you can hear the radio transmissions on Officer Gomez's body-worn camera video.

[00:15:25] Speaker 03:
It was seconds.

[00:15:28] Speaker 03:
It was less than a minute.

[00:15:29] Speaker 00:
At any point in time, did Saccascio charge Officer Gomez?

[00:15:35] Speaker 00:
No.

[00:15:36] Speaker 00:
In fact, he was running toward them.

[00:15:38] Speaker 00:
Pardon me?

[00:15:39] Speaker 00:
He was running away.

[00:15:41] Speaker 00:
He was trying to get away.

[00:15:43] Speaker 03:
He was trying to flee the police, correct, which is another

[00:15:46] Speaker 03:
factor under a gram.

[00:15:49] Speaker 03:
So, um... Well, Counsel, let me ask you this.

[00:15:53] Speaker 02:
What do our cases say about when force can be used to subdue a fleeing suspect?

[00:16:02] Speaker 03:
Well, it was, it wasn't just to subdue a fleeing subject.

[00:16:06] Speaker 03:
It was also to prevent him from scaling the fence into a residential yard where he may harm occupants of a residence,

[00:16:15] Speaker 03:
you know, commit arson, that kind of thing.

[00:16:17] Speaker 03:
So you have to look at the totality of the circumstances.

[00:16:20] Speaker 02:
What case most closely resembles this case that says it's not excessive force for an officer to inflict this type of damage on a suspect that's fleeing if there is a fear of further harm from that fleeing?

[00:16:41] Speaker 02:
What case are you relying upon to support that proposition?

[00:16:44] Speaker 03:
I'm relying on the whole body of case law.

[00:16:47] Speaker 02:
Now you have to give me a specific case that if we wrote this, if we wrote this as a matter of law, what case would we cite to support that proposition?

[00:17:00] Speaker 03:
I would look to Graham versus Connor.

[00:17:02] Speaker 02:
Well, Graham asks us to look at all of the factors.

[00:17:06] Speaker 03:
Right, but under the specific facts of Graham, I think that that would be a reasonable conclusion as well.

[00:17:12] Speaker 03:
And if you look at this court's decision in Puente versus City of Phoenix, 123F4, 1035, that you don't have fleeing suspects there, but you do have use of beanbags where the court was asked to find that the law was clearly established that the use of beanbags in that case constituted excessive force.

[00:17:39] Speaker 03:
relying on the Nelson case, which plaintiff relies on, to say that the law was clearly established, that that was excessive force.

[00:17:48] Speaker 03:
And the court distinguished the Nelson case in many different respects.

[00:17:54] Speaker 03:
And this case is more akin to the Puente case than, there are no similarities between Nelson and our case.

[00:18:06] Speaker 03:
You didn't have fleeing individuals.

[00:18:10] Speaker 03:
had individuals who were at a party.

[00:18:12] Speaker 03:
It wasn't somebody who is engaged in civil unrest, where an officer has been involved in civil unrest.

[00:18:19] Speaker 03:
The state's interest is significant in our case.

[00:18:23] Speaker 03:
To stop Mr. Secoccio, he's out past curfew.

[00:18:28] Speaker 03:
There's still riots going on in the area.

[00:18:31] Speaker 03:
And so they were told to arrest everyone.

[00:18:36] Speaker 03:
And if you look at all of the facts together,

[00:18:40] Speaker 03:
It was a reasonable use of force.

[00:18:42] Speaker 02:
Let me ask you this.

[00:18:43] Speaker 02:
Is there a disputed issue of fact regarding the level of threat posed by Mrs. Acoccio?

[00:18:53] Speaker 03:
No.

[00:18:54] Speaker 03:
There is no dispute that individuals had been breaking into homes.

[00:18:59] Speaker 02:
In terms of Mr. Sococio, was there a dispute of fact?

[00:19:03] Speaker 02:
Didn't he say that he did not pose a threat?

[00:19:07] Speaker 03:
Well, right.

[00:19:08] Speaker 03:
And anyone's going to say they don't pose a threat.

[00:19:11] Speaker 03:
But it's what a reasonable officer would believe.

[00:19:14] Speaker 03:
He had a backpack on.

[00:19:15] Speaker 03:
It was unknown whether he had incendiary devices in there, whether he had a weapon.

[00:19:21] Speaker 02:
But we're supposed to take the facts

[00:19:24] Speaker 02:
in the light most favorable to the plaintiff.

[00:19:26] Speaker 03:
Right.

[00:19:27] Speaker 03:
Well, and Officer Gomez acknowledges that he didn't know whether he had a weapon, and he didn't necessarily.

[00:19:33] Speaker 02:
He didn't know if he was going to pose any threat to the people where he was.

[00:19:39] Speaker 03:
An officer would never know that with 100% certainty.

[00:19:44] Speaker 03:
Based on the totality of the circumstances that the officer has observed over the course of four days, it's what

[00:19:53] Speaker 03:
What would a reasonable officer, what would every reasonable officer have concluded in their mind and been concerned about?

[00:20:02] Speaker 03:
It was reasonable for him to be concerned when you have people.

[00:20:06] Speaker 03:
So the organized protest ended at 7.30.

[00:20:10] Speaker 03:
So everybody who was out after 7.30 were not part of the organized protest.

[00:20:16] Speaker 03:
Starting at 8 o'clock,

[00:20:18] Speaker 03:
Everybody who's out is in violation of the law.

[00:20:21] Speaker 02:
So is it your position that there was probable cause to use force against everyone who was out past curfew?

[00:20:27] Speaker 03:
If they fled from the police, perhaps, yes.

[00:20:31] Speaker 03:
A low level of force.

[00:20:33] Speaker 03:
Yeah, hands on.

[00:20:35] Speaker 03:
And recall, Officer Gomez had to make a split second decision as to what he did in this situation.

[00:20:42] Speaker 03:
He was out with six occupants of a vehicle who had not yet been searched

[00:20:47] Speaker 03:
They had no, they had, it had been reported by the air unit that they were assisting rioters.

[00:20:54] Speaker 03:
And so he's dealing with those six occupants and gets a sudden alert from the air unit that these people are running toward them.

[00:21:03] Speaker 03:
And then he turns and at the moment officer Tate is yelling for Mr. Sikocho to stop, Mr. Sikocho does not stop.

[00:21:14] Speaker 03:
And he doesn't come toward them, does he?

[00:21:16] Speaker 03:
No, he attempts to scale the wall, which he admits in his complaint.

[00:21:22] Speaker 03:
So he alleges in paragraph 74, I'm sorry, 72 of his third amended complaint that he was attempting to scale the fence.

[00:21:32] Speaker 03:
To flee.

[00:21:33] Speaker 03:
To flee, correct.

[00:21:38] Speaker 03:
Again, it was reasonable based on the totality of the circumstances for Officer Gomez to have a concern that if he did not use this level of force, which simply is a pain compliance measure and only causes bruising as far as he knows, to get him to stop.

[00:21:55] Speaker 03:
It's no different than if he had been right there and took him to the ground.

[00:21:59] Speaker 03:
It's really not any different from that, as the district court correctly found.

[00:22:05] Speaker 03:
And it's telling that throughout this case,

[00:22:08] Speaker 03:
Mr. Sococio had alleged that he was shot at point blank range.

[00:22:14] Speaker 03:
The reason he made that allegation, and he did it over and over and over again, notwithstanding that he knew Officer Gomez was 100 feet away from him when he shot, because he knew that that was dispositive of his claim.

[00:22:28] Speaker 03:
And in the third amended complaint, which was filed two years after the lawsuit was commenced, in paragraph 74,

[00:22:37] Speaker 03:
He continues to allege he was shot at point blank range because he knew that that was the only way he would be able to state a viable excessive force claim given the totality of the circumstances that Officer Gomez was dealing with.

[00:22:53] Speaker 03:
There is, and one other thing in the Puente case, there's an argument in the briefing about a failure to give a warning and the Puente court, this court,

[00:23:04] Speaker 03:
does away with that argument.

[00:23:06] Speaker 03:
That argument was made there, and the court rejected it, saying that the officer had initially shot beanbag rounds at the person's feet, and then they went back and started engaging in their conduct again.

[00:23:23] Speaker 03:
That's analogous to our situation.

[00:23:26] Speaker 03:
Officer Tate shot beanbag rounds at his, or pepperball rounds.

[00:23:31] Speaker 03:
I said beanbag, it was pepperball.

[00:23:32] Speaker 03:
pepperball rounds at his feet, telling him to stop repeatedly and Mr. Sicocio ignored those commands.

[00:23:41] Speaker 03:
And so there was no need to give a warning and it would have been impossible.

[00:23:46] Speaker 03:
By the time he'd given a warning, Mr. Sicocio would have scaled the wall and done who knows what in a residential structure.

[00:23:53] Speaker 00:
Thank you.

[00:24:14] Speaker 01:
Towards the end of her argument, my friend on the other side mentioned this issue about Mr. Sakosha's allegation of point-blank range suggested that this was a deliberate allegation because

[00:24:27] Speaker 01:
Mr. Sokosha would know that the distance, the hundred foot distance, would actually be determined of his claim.

[00:24:34] Speaker 01:
And I don't disagree, I do think it's determined of his claim in his favor.

[00:24:38] Speaker 01:
The hundred foot distance, and I'll back up and say the misstatements all occurred prior to depositions.

[00:24:42] Speaker 01:
They're made in the complaint and in medical complaints before depositions occurred.

[00:24:46] Speaker 01:
For the purpose of summary judgment in this appeal, it's undisputed that this shooting happened from a hundred feet away.

[00:24:51] Speaker 01:
And that's important because from a hundred feet away, the risk of injury is significantly increased.

[00:24:57] Speaker 01:
the accuracy of this weapon is significantly decreased.

[00:25:04] Speaker 01:
In the Ninth Circuit's decision in Dwerle v. Rutherford at note 19, I just want to direct the court to a particular quote where the Ninth Circuit noted that regardless of how we classify particular types of force,

[00:25:21] Speaker 01:
The evidence in the record before us makes clear that the force used by Rutherford is quite capable of causing serious injury to the person shot.

[00:25:30] Speaker 01:
Accordingly, quote unquote, deadly or not, such force may not be used except when a strong governmental interest warrants its use and then only following a warning if feasible.

[00:25:43] Speaker 01:
The question is not whether this weapon system was likely to cause

[00:25:51] Speaker 01:
serious injury, it's whether it was capable of causing a serious injury and whether a reasonable officer would know that.

[00:25:58] Speaker 01:
The weapons manufacturer notes it, the training notes it, and it did cause a serious injury.

[00:26:04] Speaker 01:
Under Duerle, that is sufficient to elevate this beyond the minimal amount of force that might be appropriate for someone who is fleeing following commission of a misdemeanor curfew violation.

[00:26:18] Speaker 01:
This notion of it not being disputed that Officer Gomez was acting in protection of the homeowners is simply false.

[00:26:27] Speaker 01:
It's hotly disputed.

[00:26:29] Speaker 01:
We have Officer Gomez's testimony.

[00:26:31] Speaker 01:
apparently some radio transmission about people possibly getting into a home or trying to get into a home.

[00:26:38] Speaker 01:
But Officer Gomez's testimony was not specific to that radio transmission.

[00:26:43] Speaker 01:
Officer Gomez testified about hearing a homeland security briefing that somewhere in the country protesters were trying to rape in and trying to break into homes and sexually assault people.

[00:26:55] Speaker 01:
That's a question for the jury.

[00:26:56] Speaker 01:
Is that belief reasonable?

[00:26:58] Speaker 01:
What is the source of that belief?

[00:26:59] Speaker 01:
What's the corroboration for it?

[00:27:01] Speaker 01:
It's not a determination that should be made under Rule 56 by the district court.

[00:27:07] Speaker 01:
Finally, we have this issue of what exactly Mr. Secocio was doing when he was shot.

[00:27:13] Speaker 01:
And there is a factual dispute about this.

[00:27:16] Speaker 01:
It's undisputed that Mr. Secocio was trying to scale offense to not be, potentially not be arrested, potentially not be assaulted by police.

[00:27:25] Speaker 01:
It's also undisputed that Mr. Secocio was shot on the outside of his forearm.

[00:27:30] Speaker 01:
And if you look at the video of the body cam, we see this is not a 10-foot tall wall.

[00:27:34] Speaker 01:
It's a residential fence.

[00:27:36] Speaker 01:
So if he's shot on the outside of his forearm, either his hands are up with his back facing the officer,

[00:27:42] Speaker 01:
or his hands are down with his front facing the officer.

[00:27:44] Speaker 01:
It's the only way the injury could happen.

[00:27:45] Speaker 01:
That right there is a factual dispute as to what exactly Mr. Socoscio is doing.

[00:27:49] Speaker 01:
Was he attempting to scale a wall to run away?

[00:27:52] Speaker 01:
Had he already given himself up after being shot with pepper balls at the ground, seconds passing, had he put his arms in the air?

[00:27:59] Speaker 01:
That all dictates the reasonableness of the use of force that Officer Gomez deployed.

[00:28:06] Speaker 01:
At this point, I would just refer the court one more time to Duerle and the final holding of that case, which is when this level of force is used, intermediate force, it must be supported by a strong governmental interest and it should be preceded by a warning that the force is coming.

[00:28:22] Speaker 01:
We had neither here.

[00:28:23] Speaker 02:
Counsel, opposing counsel does not agree that this is intermediate force.

[00:28:27] Speaker 02:
What's your best case for the proposition that this force was intermediate?

[00:28:32] Speaker 01:
I think the best case for that is the Nelson case, which specifically discusses the force in the context of being significant, and it cites in favor of that proposition, the Bryan case, which discusses the use of intermediate force.

[00:28:50] Speaker 01:
So when we deal with Nelson, we're talking about pepper balls of being significant force, and it cites as its authority an intermediate case.

[00:29:00] Speaker 01:
If there's no other questions from the panel, I'll conclude here.

[00:29:04] Speaker 02:
Thank you, counsel.

[00:29:05] Speaker 01:
Thank you very much.

[00:29:06] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:29:08] Speaker 02:
The case just argued is submitted for decision by the court.