[00:00:05] Speaker 00:
The next case we have for oral argument is 24-2027, Alcala versus Ortega.

[00:00:37] Speaker 00:
besides when you're ready.

[00:00:41] Speaker 03:
You're desperately thirsty.

[00:00:57] Speaker 03:
Good morning, Your Honors.

[00:00:58] Speaker 03:
May it please the court.

[00:01:00] Speaker 03:
We are before you today following the district court's granting of qualified immunity to Deputy Ortega, who shot and killed an unarmed Diego Acala, seconds after he ordered Acala to stop and Acala had stopped.

[00:01:13] Speaker 03:
Plaintiffs asked this court to reverse and allow a jury to decide critical factual conclusions regarding that death.

[00:01:20] Speaker 03:
The nature of the briefing before the court well demonstrates that this case is highly materially and well disputed.

[00:01:28] Speaker 03:
And the defendant's video evidence does not blatantly contradict plaintiff's case.

[00:01:33] Speaker 03:
In fact, a jury could reasonably and easily conclude that the video evidence demonstrates that Ortega killed an unarmed, surrendered Alcala, and that he was objectively unreasonable in so doing.

[00:01:45] Speaker 00:
A jury could... You say surrendered Alcala?

[00:01:49] Speaker 00:
Yes.

[00:01:49] Speaker 00:
What's the evidence that he was surrendering?

[00:01:51] Speaker 00:
Didn't the officer order him to get down?

[00:01:56] Speaker 03:
He gave him conflicting commands.

[00:01:58] Speaker 03:
He told him to raise his arms, and he also told him to get on the ground.

[00:02:02] Speaker 00:
Did he do either of those?

[00:02:03] Speaker 03:
Not in the six seconds he had occasion to do.

[00:02:06] Speaker 03:
So he had both hands on his knees, and he was resting and winded.

[00:02:10] Speaker 03:
But it was six seconds before.

[00:02:11] Speaker 03:
And arguably, if the court were to accept defendants' version of the facts, which is that Deputy Ortega shot because of a

[00:02:25] Speaker 03:
movement with his hand already in the air, we don't know.

[00:02:29] Speaker 03:
I mean, he could have been shot while attempting to comply with the order to raise his hands.

[00:02:35] Speaker 01:
Can we tell from the video, there are nine shots and you watch the real speed when you can count them out, one, two, three, all the way to nine.

[00:02:42] Speaker 01:
And then you do the slower one and you know where that first sound was from the other one.

[00:02:48] Speaker 01:
And by my look, and you can tell me otherwise and I'm not swearing to anything,

[00:02:53] Speaker 01:
By my look, the first shot comes after Mr. Alcala has actually turned his full body and is extending an arm with the finger out, the deputy described as pointing.

[00:03:05] Speaker 01:
It looks like a gun to me.

[00:03:07] Speaker 01:
Pointing, in other words, if he would have had a gun, the officer would have been shot before he ever got a shot off.

[00:03:13] Speaker 03:
I think this is interesting and calls into question Scott versus Harris.

[00:03:19] Speaker 03:
I very much see something different, even in the slow motion version.

[00:03:23] Speaker 01:
Do you hear something different as far as when the gunshots begin?

[00:03:26] Speaker 03:
I hear the gunshots beginning with a slight movement with his hand by his side.

[00:03:32] Speaker 03:
And this, and in the still frames that the defendants rely on, it shows that the movement with the hand in the air is

[00:03:44] Speaker 03:
14 frames, I think.

[00:03:46] Speaker 03:
You can see the hand in the screen barely, but what you're referencing, what may look like a gun drawn, is 14 frames after they even indicate there's a gunshot.

[00:03:58] Speaker 01:
Well, the first sign that he has been struck as he reels back is after that's all happened.

[00:04:07] Speaker 01:
Otherwise, it's a normal motion.

[00:04:10] Speaker 01:
There's nothing.

[00:04:11] Speaker 01:
The arm comes up, the finger is pointed,

[00:04:14] Speaker 01:
and then after that, you see him royal back.

[00:04:19] Speaker 03:
I don't believe that's the case when you look at the video.

[00:04:22] Speaker 03:
I don't believe it's the case when you look at the slow motion version.

[00:04:24] Speaker 03:
I don't think it's the case when you look at the stills that they extracted from the video.

[00:04:30] Speaker 03:
Okay, I'll take another look.

[00:04:33] Speaker 03:
Yeah, and the real time video,

[00:04:35] Speaker 03:
The only other living witness from this event watched it and agreed with us as well, or agreed with how plaintiff is interpreting the video.

[00:04:45] Speaker 03:
And to me, this motion where he's being spawned is him reacting to the gunshots.

[00:04:51] Speaker 03:
And the slow motion, at most what I see is that he's slightly standing when you hear the gunshot.

[00:05:00] Speaker 03:
It's a little, are you watching this simultaneous?

[00:05:02] Speaker 03:
Videos are just the blown-ups, slow motion.

[00:05:05] Speaker 01:
Watched everyone in the record and more than once.

[00:05:08] Speaker 03:
Yeah.

[00:05:09] Speaker 03:
We just see it differently, which I think is an interesting question.

[00:05:13] Speaker 01:
Do you agree with the, there are nine shots?

[00:05:19] Speaker 03:
I don't remember.

[00:05:19] Speaker 01:
Isn't that undisputed that there were nine shots?

[00:05:22] Speaker 01:
Okay.

[00:05:23] Speaker 01:
And so we can look at the video, count the shots and make up our mind, right?

[00:05:29] Speaker 03:
Yeah, but the most significant thing is when did he shoot first?

[00:05:33] Speaker 01:
And that would be shot number one that we hear.

[00:05:35] Speaker 03:
Right.

[00:05:37] Speaker 03:
And both the frames they've extracted and the slow motion video I believe shows that the shots were before the movement they have consistently relied on for justifying killing Mr. Alcala.

[00:05:52] Speaker 00:
Is there any question about the synchrony between the video and the audio?

[00:05:58] Speaker 00:
Does everyone agree that they are synced?

[00:06:03] Speaker 00:
Was it ever challenged?

[00:06:05] Speaker 03:
I did.

[00:06:05] Speaker 03:
We have not challenged that, and we haven't challenged it because we believe it shows that he was shot before the movement he made that they're relying on, is in part why we haven't challenged that.

[00:06:19] Speaker 01:
When you say the other living witness, are you talking about the officer who drove up?

[00:06:23] Speaker 01:
Correct.

[00:06:23] Speaker 01:
Because this was occurring?

[00:06:24] Speaker 01:
Okay.

[00:06:24] Speaker 03:
Yeah, Officer Hayes.

[00:06:26] Speaker 03:
So those are the two videos that exist are from dash cameras, one from Officer Hayes' vehicle and one from Officer Alcala's, I mean Ortega's, sorry.

[00:06:39] Speaker 01:
With Officer Hayes, just so I'm sure of what you're saying, are you saying that he watched these videos that have been produced to us?

[00:06:45] Speaker 01:
and agreed with your interpretation?

[00:06:47] Speaker 01:
Are you saying he drove up and what he thought he saw was such and such?

[00:06:52] Speaker 03:
He watched the real time video in his deposition and after watching that agreed that what he had thought he saw and seen was mistaken.

[00:07:01] Speaker 01:
But he didn't see the slower version.

[00:07:03] Speaker 03:
He has not seen the slow motion video.

[00:07:11] Speaker 03:
But yeah, to direct you to the frames, again, let me find the actual numbers.

[00:07:20] Speaker 03:
Because the movement that they rely on in those frames and what you're talking about, they even identify as after the shot.

[00:07:26] Speaker 01:
It's in the briefs, isn't it?

[00:07:27] Speaker 03:
Yes.

[00:07:28] Speaker 01:
Okay.

[00:07:30] Speaker 01:
Let me ask you this.

[00:07:31] Speaker 01:
Is your position that the deputy violated the Fourth Amendment because he shot knowing that

[00:07:42] Speaker 01:
Mr. Alcala hadn't moved or that he mistakenly thought that he was moving and shot him.

[00:07:49] Speaker 03:
I think a reasonable jury could conclude either way, given his inconsistent testimony about why he shot and the fact that the physical evidence doesn't support that either there was a gun or that there was a gunshot.

[00:08:04] Speaker 01:
Well, let's take the second one, which is the jury says he doesn't look like a cold-blooded killer.

[00:08:09] Speaker 01:
He certainly didn't jump out of the car and immediately shoot him.

[00:08:13] Speaker 01:
We agree with your interpretation of the video and he shot early and it was mistaken, it was tense.

[00:08:22] Speaker 01:
And of course the law accommodates for tenseness and immediacy and so forth.

[00:08:27] Speaker 01:
And it wasn't a knife we're talking about that he feared it was a gun.

[00:08:31] Speaker 01:
And the jury says he probably jumped the gun by just a fraction of a second fearing for his life

[00:08:41] Speaker 01:
That's not a Fourth Amendment violation, isn't it?

[00:08:43] Speaker 03:
Well, an unreasonable mistake would be.

[00:08:46] Speaker 01:
And would it be unreasonable in that situation to, by a millisecond, jump the gun when you're concerned that the other person has a firearm and will shoot you, who has not obeyed your commands?

[00:08:59] Speaker 03:
Because it would be unreasonable if a caller was moving to a, he's being ordered to move.

[00:09:06] Speaker 03:
So the natural consequence of an order to move

[00:09:10] Speaker 03:
would be that everything that people are complaining about, which would be he would pass his waistband, he would put an arm in the air, that's the natural consequence of telling somebody to put their hands in the air, number one, so that would be unreasonable.

[00:09:22] Speaker 01:
They'd raise their hands, which he didn't do.

[00:09:25] Speaker 01:
And the posture, he sets up at an angle to the officer, he's not facing him, he sets up an angle, you can see his right elbow bent, and therefore the hand is near his waistband,

[00:09:40] Speaker 01:
And that's what causes the concern, right?

[00:09:43] Speaker 01:
If you were facing the officer so the officer could see his hands, it'd be a totally different thing.

[00:09:48] Speaker 01:
And that's why the officer says that he's moving to the left, is he's trying to get a look at Mr. Ocala's right hand.

[00:09:55] Speaker 03:
We don't have a view of what the officer actually saw.

[00:10:00] Speaker 03:
Our view of what the officer actually

[00:10:04] Speaker 03:
Actually, so I was not captured because despite state law, he wasn't wearing a lapel camera.

[00:10:09] Speaker 03:
So he claims to have been about four feet to the left, which is again just his speculation, supposition and estimation because we don't know.

[00:10:18] Speaker 03:
And so we don't know exactly what he saw, which is why if there's any, I don't believe that the video blatantly contradicts plaintiff's case.

[00:10:28] Speaker 03:
And all of his statements then about when and why he shot and what he saw when he shot, which also includes from he believed he was being shot at and heard a pop, which is objectively unreasonable given that didn't actually happen.

[00:10:46] Speaker 03:
And then he also,

[00:10:48] Speaker 03:
testified in his deposition that he shot when his arms were raised and clearly empty.

[00:10:54] Speaker 03:
And anything about the situation that was rapidly evolving and anything about the situation in that moment was his issue.

[00:11:03] Speaker 03:
He's giving conflicting, confusing orders that can't possibly be complied with.

[00:11:08] Speaker 03:
He can't do both.

[00:11:10] Speaker 01:
What if you're wrong about the first gunshot?

[00:11:13] Speaker 01:
If we

[00:11:14] Speaker 01:
view the video and we say, we disagree with your interpretation of that.

[00:11:19] Speaker 01:
The shot actually came after he began to turn, then no Fourth Amendment violation.

[00:11:24] Speaker 03:
No, because, I mean, beginning to turn could still be consistent with putting his arms up.

[00:11:31] Speaker 01:
I'm talking about the turn that was made on this video, which is not a... This, where the arm is up?

[00:11:37] Speaker 01:
I can raise my arms without turning, and it's a quick turn toward the officer, and don't forget that arm in the hand.

[00:11:43] Speaker 01:
That is not a putting your hands in the air gesture.

[00:11:49] Speaker 01:
I wouldn't think.

[00:11:51] Speaker 03:
Your Honours, I may have neglected to reserve time for rebuttal and I would like to reserve my remains.

[00:11:56] Speaker 00:
Well, you're being asked questions so you need to... Sorry?

[00:12:00] Speaker 00:
Often lawyers will ask for rebuttal time to be reserved and

[00:12:07] Speaker 00:
We keep asking questions.

[00:12:10] Speaker 00:
So let's pursue this question.

[00:12:13] Speaker 01:
But you've answered my question, so I don't want to drain you any further.

[00:12:16] Speaker 00:
Well, I have some questions.

[00:12:18] Speaker 00:
OK.

[00:12:18] Speaker 00:
So did I understand you correctly to say that the officer said he shot Mr. Alcala when Mr. Alcala's hands were both up?

[00:12:31] Speaker 03:
We're both up and empty and that he could see that as one version of his testimony, yes.

[00:12:36] Speaker 00:
That he says that's his first shot.

[00:12:38] Speaker 00:
Correct.

[00:12:40] Speaker 03:
Yes, in his deposition when asked what Mr. Alcol was doing when he was shot, he says he could see his right arm up, he could see his left hand, and that he could discern that they were both empty.

[00:12:52] Speaker 03:
That is his testimony.

[00:12:53] Speaker 00:
Was any weapon found at the scene?

[00:12:55] Speaker 03:
He was unarmed.

[00:12:57] Speaker 03:
Yeah, no, there was no weapon at the scene.

[00:12:59] Speaker 00:
I was just looking at the video again this morning, and it sure looked like there was something in his hand.

[00:13:04] Speaker 00:
Do we have any idea whether he had anything in his hand?

[00:13:07] Speaker 03:
He had nothing in his hand.

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

[00:13:11] Speaker 03:
You're welcome.

[00:13:13] Speaker 03:
Thank you, Your Honor.

[00:13:19] Speaker 00:
It's great.

[00:13:22] Speaker 02:
Good morning, Your Honor.

[00:13:23] Speaker 02:
May it please the court?

[00:13:26] Speaker 02:
Deputy Ortega faced a situation that any officer would have reasonably perceived as a dire, mortal threat.

[00:13:34] Speaker 02:
And that's what's being washed over today.

[00:13:37] Speaker 02:
Plaintiff does not dispute that the actions that were reported through dispatch actually happened or that that information was actually dispersed by dispatch through the radio.

[00:13:49] Speaker 02:
What Plaintiff relies on is speculation based on disputes that don't actually create a genuine dispute.

[00:13:56] Speaker 02:
So that means they're speculative.

[00:13:58] Speaker 02:
And again, as we heard today, they're based on a weighing of credibility that is just simply inappropriate on summary judgment.

[00:14:06] Speaker 00:
Let me pursue a little bit about the notion that he had not responded, that Mr. Alcala had not responded to police orders.

[00:14:14] Speaker 00:
The description given by Ms.

[00:14:16] Speaker 00:
Ives was that he'd been running.

[00:14:19] Speaker 00:
You can see that.

[00:14:20] Speaker 00:
He's out of breath.

[00:14:21] Speaker 00:
When you're out of breath, you'll lean over to catch your breath.

[00:14:26] Speaker 00:
And why would an officer not think that that was a reasonable reason why he had not responded at that time?

[00:14:37] Speaker 00:
She said there were like six seconds between the first order and the shot.

[00:14:43] Speaker 00:
Was it unreasonable for the officer to expect the fellow who had just been running and seemed to be out of breath or whatever,

[00:14:53] Speaker 00:
You can give him some leeway there when he's going to get down or raise his hands or whatever he should do in response to the officer's orders.

[00:15:03] Speaker 02:
Well, it would have been, perhaps we could talk about whether it was reasonable or not, but the point is that it wasn't Deputy Ortega who made the decision to move.

[00:15:13] Speaker 02:
It was Mr. Alcala's move that prompted the shooting.

[00:15:17] Speaker 02:
So there may well have been additional commands, but that opportunity was cut short

[00:15:23] Speaker 02:
when Mr. Alcala made that sudden move bringing his hand from his waistband up towards Deputy Artigan.

[00:15:31] Speaker 02:
Were both hands going up at that time?

[00:15:33] Speaker 02:
No, I believe there may have been some slight movement in his left hand, but it wasn't consistent with putting hands up or anything like that, which of course the court in the state of Alberta specifically said, when you cannot see a gun, an officer can do little more than the command

[00:15:49] Speaker 02:
the subject to raise their hands and get on the ground.

[00:15:52] Speaker 02:
And that's exactly what Deputy Ortega did in this case.

[00:15:56] Speaker 02:
But considering the totality of the circumstances as we must in these circumstances, in addition to the specific moment that Deputy Ortega fired, we're dealing with a circumstance where there's a motor vehicle accident.

[00:16:10] Speaker 02:
And for reasons unknown, a subject pulls a rifle out of his vehicle

[00:16:15] Speaker 02:
points the rifle at several innocent bystanders and then proceeds to attempt to hijack by force multiple vehicles.

[00:16:25] Speaker 02:
And then by the time Deputy Ortega enters the picture as he makes his way south on Maine, he encounters

[00:16:33] Speaker 02:
who, somebody there on scene who steps into the roadway on Main as we can hear people shouting, shouting in the distance.

[00:16:42] Speaker 02:
And this man says, you know, it says some things and points him in the direction of giving him a description of what he was wearing.

[00:16:49] Speaker 02:
So at this point, Deputy Ortega knows that there's a subject who was armed and dangerous and he has further confirmation of what was heard through dispatch from somebody there on scene.

[00:17:00] Speaker 01:
Pause, pause there.

[00:17:01] Speaker 01:
because what matters is what the officer knew, right?

[00:17:05] Speaker 01:
So these dispatch reports don't matter unless the officer read them or heard them, correct?

[00:17:10] Speaker 02:
Correct.

[00:17:11] Speaker 01:
And the reason you say the deputy knew about Mr. Alcala's having a firearm is because he went to the scene of the accident.

[00:17:21] Speaker 01:
And then on the video, you can see a man come up looking somewhat stressed and points and talks to him.

[00:17:29] Speaker 01:
And my understanding is

[00:17:31] Speaker 01:
that that man tells him about the gun and that he can hear it from people in the background talking about a gun.

[00:17:37] Speaker 01:
Is that solid on the record that we can say Deputy knew that a gun had at least been involved?

[00:17:44] Speaker 02:
Yes.

[00:17:45] Speaker 02:
And you know, because we know this because of the consistency in the actual account.

[00:17:50] Speaker 02:
The only difference is the source of where Deputy Ortega identified he got this information.

[00:17:55] Speaker 02:
But what is clear is that it was available to him

[00:17:58] Speaker 02:
through radio or through that other gentleman who stepped into the roadway.

[00:18:02] Speaker 01:
And the deputy says that gentleman told me that.

[00:18:05] Speaker 02:
He says in his officer involved interview he does and that can be found at page 185 of the appendix.

[00:18:15] Speaker 00:
What happened to the gun?

[00:18:17] Speaker 00:
Does anyone have any idea what happened to the gun if he had one?

[00:18:21] Speaker 02:
We learned subsequently that the gun was replaced back into the vehicle.

[00:18:27] Speaker 02:
Mr. Ocala replaced the gun back into the vehicle before he left the scene.

[00:18:31] Speaker 02:
And that is in the dispatch log, and it's also in the radio recordings.

[00:18:36] Speaker 02:
But what's significant about that is that there are multiple subsequent reports reporting a 1080, which is the law enforcement code for a gun, without reference to whether it's a long gun or a short gun.

[00:18:51] Speaker 02:
and certainly somebody who brandishes a gun to multiple people on scene, it's very reasonable to presume that it might be armed.

[00:18:59] Speaker 02:
And of course, as the district court cited in the United States versus Briggs case, the waistband area is a place where felons often will keep their weapons.

[00:19:09] Speaker 02:
So under these highly tense, rapidly evolving circumstances,

[00:19:16] Speaker 02:
in which multiple people were threatened recklessly for reasons unknown, it was reasonable for Deputy Ortega to presume, as he did, that Mr. O'Callag might be armed with some other firearm.

[00:19:30] Speaker 02:
And of course, Deputy Ortega's, what Deputy Ortega knew at that point, he did not hear about all of the other previous attempts to carjack other people.

[00:19:42] Speaker 02:
What he knew

[00:19:43] Speaker 02:
is based on what he heard and what he remembered was that there was a subject who had pointed a gun at several people.

[00:19:50] Speaker 02:
And that's reported several times in both the radio recordings and plaintiffs exhibit for, excuse me, as well as the catalog.

[00:20:00] Speaker 02:
And so even if we were with a circumstance where the last report indicated that the shot could have been replaced in a car, that still doesn't resolve the likely threat

[00:20:12] Speaker 02:
that this person might be armed with another gun because they've already demonstrated that they're willing to threaten lethal force.

[00:20:19] Speaker 02:
And then once Deputy Ortega actually makes contact with the subject, he continues running and then actually attempts to pull an ambulance driver out of the vehicle, which is further confirmation that this subject is willing to use force and is dangerous.

[00:20:38] Speaker 02:
And so with all of these inferences, both direct and indirect,

[00:20:42] Speaker 02:
Deputy Ortega knew he was in a very dire situation.

[00:20:46] Speaker 02:
That could quickly turn into an active shooter situation had he not stopped Mr. Ocala right there.

[00:20:52] Speaker 02:
And of course, he didn't even get the opportunity to make that decision because Mr. Ocala made it for him when he drew his hand in a motion that is remarkably similar to the drawing and pointing of a gun.

[00:21:05] Speaker 02:
This case meets and exceeds the conduct that was in a State of Taylor versus Salt Lake City

[00:21:12] Speaker 02:
if we consider that that case was only on the second grand factor, whereas here we have very severe crimes, some of which were witnessed directly by Deputy Ortega.

[00:21:24] Speaker 02:
Then we followed the estate of Larson Factors, the distance, no cover.

[00:21:28] Speaker 02:
There were clear commands that were issued.

[00:21:31] Speaker 02:
To the extent that one might argue, well, he couldn't understand, Mr. Ocala understood the first command to stop.

[00:21:39] Speaker 02:
And at that point, he appreciated that Deputy Ortega was indeed law enforcement.

[00:21:43] Speaker 02:
Of course, they were in broad daylight.

[00:21:45] Speaker 02:
He's wearing his uniform, standing next to his marked unit.

[00:21:48] Speaker 02:
So there's really no question about what Mr. Ocala's manifest intentions were at that point, as far as Deputy Ortega could perceive them.

[00:21:58] Speaker 02:
They were hostile, and there were people nearby.

[00:22:01] Speaker 02:
Of course, they were close to the scene.

[00:22:03] Speaker 02:
So it was imperative that Deputy Ortega stop him at that point.

[00:22:09] Speaker 02:
And, you know, if the circumstances were different, I would further say that if he had made that move, if he had continued running towards Main Street, even under those circumstances, Deputy Ortega could have probably shot him at that point to prevent any further potential injury or serious injury or death to other people that were in the vicinity.

[00:22:31] Speaker 02:
And certainly, opportunities were there.

[00:22:33] Speaker 00:
So the fact that someone is fleeing is a factor that can

[00:22:38] Speaker 00:
partially at least justify force, but he wasn't fleeing when he was shot.

[00:22:43] Speaker 00:
Well, when the court said... I think you could say, well, if he fled, we could shoot him, but he wasn't fleeing, so we can shoot him then.

[00:22:52] Speaker 02:
Well, there's an interesting quote in the State of Alberta case where the court says that when a subject reasonably appears as if they're about to shoot an officer, certainly they're reasonably resisting arrest.

[00:23:06] Speaker 02:
And of course, that's not directly analogous to fleeing.

[00:23:09] Speaker 02:
But the point is that the resistance, he was not complying.

[00:23:12] Speaker 02:
He wasn't even seized at that point because he's not listening to these commands after demonstrating that he at least understood the very first command.

[00:23:22] Speaker 02:
And then, of course, he leaves his hand in a position such that Deputy Ortega cannot determine whether he's armed or not.

[00:23:31] Speaker 02:
And that's exactly why his plaintiff mentioned he moved to the left

[00:23:34] Speaker 02:
to try to verify to see what was going on with that other hand.

[00:23:39] Speaker 02:
He simply couldn't do it, and maybe he could have if he had been given more time.

[00:23:43] Speaker 02:
But Mr. O'Callum made that sudden move, and there's no mistaking it.

[00:23:48] Speaker 02:
Plato describes the hand going up like this, but it is very clearly like this, and it happens in a fraction of a second, such that we need the assistance of sync video.

[00:23:58] Speaker 02:
And so testimony from an officer who did not actually witness the shooting after the fact

[00:24:05] Speaker 02:
really irrelevant in the end, especially when, again, in the state of Alberta case, this court said that when there is unmistakable video that blatantly contradicts testimony, that overrides the testimony, just as it does in this case.

[00:24:21] Speaker 01:
Explain that to me, the blatantly contradicted, because it comes out of Scott, but a different setting, where the plaintiff won, and the court found a genuine issue of material fact on whether the driving was endangering others.

[00:24:34] Speaker 01:
This is the flip, which is the plaintiff loses and the court finds no genuine issue of material fact.

[00:24:42] Speaker 01:
When you say blatantly contradicted, who uses blatantly, is it the plaintiff's, the appellant's version here or burden here to show that the video blatantly contradicts what the district court ruled or is it your burden to show something blatantly contradicted their position?

[00:25:02] Speaker 02:
Oh, that's an interesting question.

[00:25:04] Speaker 02:
I would say that because the summary judgment burden is on the non-moving, it is probably on the defendant to prove.

[00:25:10] Speaker 02:
But certainly, I think that bears itself out in this case based on the video.

[00:25:15] Speaker 02:
The plaintiff raises these arguments about frames, but that wasn't preserved.

[00:25:20] Speaker 02:
That was raised for the first time in the reply and in Ray's Syngenta case.

[00:25:24] Speaker 02:
When you raise an issue in the appellate brief and the reply for the first time, you waive the issue.

[00:25:30] Speaker 02:
But more than that,

[00:25:32] Speaker 02:
No matter what frame you're pointing to, and of course, when the Deputy Ortega raised the issue below, he was referring to when the hand move was seen.

[00:25:43] Speaker 02:
And on appeal, we're referring to the first move.

[00:25:45] Speaker 02:
So naturally, we're going to have different number of frames that we're referencing here.

[00:25:50] Speaker 02:
But the point is that the hand move and any move

[00:25:54] Speaker 02:
clearly precedes the gunshot.

[00:25:59] Speaker 02:
And it is really, especially the still frames taken from Officer Hayes' video shows exactly the trajectory of the move, while Deputy Ortega's slowed video camera with the numbered frames tells you the actual sequence of events.

[00:26:15] Speaker 02:
And really with those two videos alone is sufficient.

[00:26:18] Speaker 02:
But the other videos, the synced video, it's not quite accurate.

[00:26:22] Speaker 02:
But that, of course, entails an expert having to go in and sync it.

[00:26:26] Speaker 02:
But there's room for error.

[00:26:28] Speaker 02:
But when you look at the objective video evidence, there's just no doubt about the sequence of what happened and the nature of the move as it happened.

[00:26:35] Speaker 01:
So you're unsure whether Blatantly Contradicted has a place in this case.

[00:26:40] Speaker 01:
And if it does have a place in this case, who the onus is on?

[00:26:45] Speaker 02:
Yeah, I would say that I don't have that answer for certain.

[00:26:48] Speaker 02:
But I would presume that it would be on the defendant in this case.

[00:26:53] Speaker 02:
And I think that that is something that Deputy Ortega has been able to demonstrate.

[00:26:59] Speaker 02:
And the state of Alberti case specifically referred to synced video.

[00:27:05] Speaker 02:
And of course, the description of what exactly that synced video was, whether there was the aerial camera that was at issue in that case, we don't really know from the decision.

[00:27:14] Speaker 02:
But what we do know is that we have objective evidence with numbered frames

[00:27:18] Speaker 02:
And it clearly contradicts any other interpretation that would suggest that Mr. Alcala was surrendering.

[00:27:26] Speaker 02:
He didn't say anything to that effect.

[00:27:28] Speaker 02:
He made no motions that Deputy Ortea could have reasonably perceived as a surrender.

[00:27:34] Speaker 01:
What if the first gunshot comes before he begins to turn?

[00:27:39] Speaker 02:
Well, I suppose that then we would be thinking about different case law.

[00:27:44] Speaker 02:
in terms of whether, I believe it was nine seconds from when he started issuing the commands was a sufficient amount of time to comply.

[00:27:53] Speaker 02:
And I would say even under those circumstances, that's what we're dealing with.

[00:27:57] Speaker 02:
If we look to the Tenorio case, the subject in that case holding knives loosely by his side took three steps and was shot within a matter of about, I believe it was two seconds.

[00:28:08] Speaker 01:
Are you saying that it was okay to shoot if he never moved?

[00:28:12] Speaker 01:
If he waited a full minute, then go ahead and shoot?

[00:28:15] Speaker 02:
If he's not complying, I mean, I would have to inject hypothetical facts to really fully answer that question.

[00:28:22] Speaker 02:
But if he had maintained his position for a minute, I would think then it's possible.

[00:28:32] Speaker 02:
But I would probably need to know more to really fully answer it.

[00:28:37] Speaker 02:
But of course, the main concern that Deputy Ortega had at the time.

[00:28:44] Speaker 00:
I have one quick question, because you stated something that was contrary to what opposing counsel said.

[00:28:50] Speaker 00:
You said there were nine seconds between when he was ordered to raise his hands and lie down and when he was shot.

[00:28:58] Speaker 00:
Correct.

[00:28:59] Speaker 00:
And opposing counsel said six seconds.

[00:29:03] Speaker 00:
Are you measuring from different starting points?

[00:29:06] Speaker 00:
Do you know what the difference is?

[00:29:07] Speaker 02:
No, I think we were differing in terms of our timing, but I believe it was nine seconds, not six seconds.

[00:29:24] Speaker 00:
Give her three minutes.

[00:29:27] Speaker 03:
A few points.

[00:29:29] Speaker 03:
To begin with, the defendants council came up here and talked about my client potentially attempting to hijack five vehicles.

[00:29:38] Speaker 03:
He was unarmed.

[00:29:40] Speaker 03:
He was running.

[00:29:41] Speaker 03:
No officer had told him to stop before Ortega told him to stop.

[00:29:46] Speaker 03:
When Ortega told him to stop, he stopped.

[00:29:48] Speaker 03:
And there are instances where this court has had far more serious allegations against a criminal suspect, where what actually matters is, does the officer have the right to shoot and kill somebody in that moment?

[00:30:03] Speaker 01:
Well, if there were five or 10 or however many vehicles, it would be immaterial, wouldn't it?

[00:30:08] Speaker 01:
Correct, because he didn't know it.

[00:30:09] Speaker 01:
The officer has to know it.

[00:30:10] Speaker 01:
The officer has to know.

[00:30:11] Speaker 01:
And he knew something about the ambulance.

[00:30:15] Speaker 03:
Potentially.

[00:30:17] Speaker 03:
He didn't, you know, when he made the statement about the ambulance was after he'd had counsel and a week had passed.

[00:30:23] Speaker 01:
The video shows that.

[00:30:24] Speaker 01:
By the time he comes around the corner and the camera sees the scene and all he had to do is turn his head and he would have seen it before that point.

[00:30:33] Speaker 01:
Mr.

[00:30:36] Speaker 03:
Mr. Akala is running down the street.

[00:30:38] Speaker 01:
He's still within the shadow.

[00:30:39] Speaker 01:
He's still within the shadow of the ambulance and then the ambulance driver is gesturing and pointing and so forth.

[00:30:46] Speaker 01:
So there's that.

[00:30:47] Speaker 03:
Right.

[00:30:49] Speaker 03:
But in any event, the significance, so when you're talking about seeing the video with his twist,

[00:30:55] Speaker 03:
That is the video in which you can't hear noise and you can't pinpoint where the gunshot is except for by virtue of their frames.

[00:31:04] Speaker 03:
And again, is this appropriate?

[00:31:06] Speaker 03:
Is this appropriate for a court under Scott versus Harris?

[00:31:09] Speaker 03:
Are we having a jury discussion right now?

[00:31:12] Speaker 03:
Potentially, but in any event,

[00:31:14] Speaker 03:
Those frames and why she just stood up here and said, oh, they waived that argument is because the frames and their own evidence demonstrates the shot comes before the movement that they say justifies killing this man.

[00:31:29] Speaker 03:
And just based on that, we should get an opportunity to present that with a jury.

[00:31:33] Speaker 03:
She also conceded experts would have a lot to say about these videos and what happened and when and how to sync them.

[00:31:40] Speaker 03:
That's what we want the opportunity to do with a jury.

[00:31:44] Speaker 00:
Well, it's summary judgment.

[00:31:47] Speaker 00:
You can't say we're going to put on evidence later.

[00:31:50] Speaker 00:
If you have evidence to rebut the motion for summary judgment, you can't respond by saying, well, lots of experts might help us on that.

[00:32:00] Speaker 03:
We have rebutted the evidence.

[00:32:02] Speaker 03:
It was defendant's counsel that said she would use an expert.

[00:32:06] Speaker 00:
OK.

[00:32:09] Speaker 03:
Thank you so much, Your Honors.

[00:32:10] Speaker 03:
I respectfully ask that you reverse the district court in remand.

[00:32:15] Speaker 00:
Thank you, Council.

[00:32:16] Speaker 00:
Case is submitted.

[00:32:17] Speaker 00:
Council are excused.

[00:32:18] Speaker 00:
We're going to take a brief recess.