[00:00:00] Speaker 02:
Councilor excused.

[00:00:01] Speaker 02:
We'll turn to our next case, 23-2159, Baca versus Cosper.

[00:00:17] Speaker 02:
Mr. Lohman, when you're ready.

[00:00:45] Speaker 00:
Good morning, Your Honors.

[00:00:47] Speaker 00:
I may have pleased the Court.

[00:00:49] Speaker 00:
I would like to return to five minutes.

[00:00:54] Speaker 00:
My name is Eric Lohman.

[00:00:56] Speaker 00:
My name is Eric Lohman.

[00:00:57] Speaker 00:
I represent the plaintiff appellant in this case, Perla Baca.

[00:01:01] Speaker 00:
She's the representative of the estate of Amelia Baca, who was killed by Officer Cosper on April 13, 2022.

[00:01:10] Speaker 00:
There are two issues before the Court here.

[00:01:15] Speaker 00:
And they are the two prongs of qualified immunity, the qualified immunity analysis.

[00:01:20] Speaker 00:
I'm asking the court to consider them each separately and distinctly.

[00:01:24] Speaker 00:
They are separate issues for our purposes.

[00:01:27] Speaker 00:
First, I would like to talk about what was clearly established on April 13, 2022.

[00:01:33] Speaker 00:
That was the day that Emilie Baca was killed by Officer Cosper.

[00:01:38] Speaker 00:
And as of 2019, it was clearly established that

[00:01:46] Speaker 00:
An officer violates Fourth Amendment when he ignores a plaintiff's mental state and unreasonably escalates the situation to create the need for deadly force.

[00:01:58] Speaker 00:
I take that from the holding of Ceballos versus Husk.

[00:02:01] Speaker 00:
That is a 2019 10th Circuit decision.

[00:02:05] Speaker 00:
And in that case, officers responded to a man who was emotionally distraught, having some kind of mental health episode.

[00:02:13] Speaker 00:
He was holding a bat, and the officers

[00:02:16] Speaker 00:
approached him aggressively, screaming in his face, escalated the situation to the point where ultimately they shot him, killed him.

[00:02:25] Speaker 00:
And 10th Circuit found in that case that the officer's unreasonably escalated denied qualified immunity to the officer and found that he unreasonably escalated the situation.

[00:02:38] Speaker 00:
For sure, this was clearly established by 2019.

[00:02:41] Speaker 00:
Arguably, it was clearly established as early as 2007

[00:02:45] Speaker 00:
in an unreported case from the 10th Circuit called Hastings.

[00:02:50] Speaker 02:
Law is not clearly established by unreported cases.

[00:02:53] Speaker 02:
That's black letter law.

[00:02:57] Speaker 02:
So don't worry about that.

[00:02:58] Speaker 00:
Well, thank you for that.

[00:03:01] Speaker 00:
But for sure, by 2019, it was clearly established.

[00:03:04] Speaker 00:
And so BIOS sweeps up Hastings and some other cases.

[00:03:09] Speaker 00:
Alan B. Muskogee is another earlier one.

[00:03:14] Speaker 00:
as his court got to its holding in Ceballos.

[00:03:17] Speaker 01:
Nobody else was endangered in Ceballos, right?

[00:03:19] Speaker 01:
Doesn't that distinguish it?

[00:03:22] Speaker 01:
No, Your Honor.

[00:03:23] Speaker 01:
The wife and the child had left the premises.

[00:03:25] Speaker 01:
He's alone in the driveway.

[00:03:28] Speaker 00:
Thank you, Your Honor.

[00:03:29] Speaker 00:
So respectfully, I would say no.

[00:03:31] Speaker 00:
So the video in this case speaks for itself.

[00:03:36] Speaker 00:
And what it depicts is Amelia Baca, this frail 75-year-old woman,

[00:03:43] Speaker 00:
clearly bewildered, confused.

[00:03:46] Speaker 00:
And there is no one else around.

[00:03:47] Speaker 00:
She's in a room.

[00:03:48] Speaker 01:
I thought that the daughter who had called the police and the granddaughter who had been threatened were barricaded in a bedroom in the house.

[00:03:57] Speaker 00:
They may have been somewhere else in the house.

[00:03:59] Speaker 01:
Well, that was the report.

[00:04:00] Speaker 01:
That's what the officer understood, is it not?

[00:04:03] Speaker 00:
I think that's right.

[00:04:04] Speaker 00:
But as far as who is in immediate danger, there was no one else.

[00:04:07] Speaker 00:
What Officer Cosper is looking at is a living room in a kitchen.

[00:04:11] Speaker 00:
There's a hallway off to the side.

[00:04:13] Speaker 00:
If there's somebody in the back of the house, they're not in any immediate danger.

[00:04:18] Speaker 00:
Officer Cosper is, you know, during different points in the encounter, 10, 12 feet away.

[00:04:23] Speaker 00:
Now, when he arrives, when he arrives, it is peaceful and calm and quiet.

[00:04:28] Speaker 00:
All of this is depicted on the video because Amelia Baca's daughter and granddaughter had essentially resolved the situation.

[00:04:36] Speaker 01:
They were... I wondered that, are the two women who are with her, as you first see the video of the kitchen area, is that the reporting party and the granddaughter, or are they still back in the house somewhere?

[00:04:48] Speaker 00:
No, that is not who called, that is not who called.

[00:04:52] Speaker 01:
Well, wait a minute, that's not who called the police?

[00:04:54] Speaker 00:
That's right.

[00:04:55] Speaker 01:
I thought it was the daughter who said, were barricaded in a back bedroom.

[00:04:59] Speaker 00:
There were other family members.

[00:05:01] Speaker 01:
Okay, so... Oh, well, I'm sorry, but...

[00:05:05] Speaker 01:
Who are the two women who are talking very calmly and peaceably when the officer arrives?

[00:05:10] Speaker 00:
Yes, one is Amelia Baca's daughter and the other is her granddaughter.

[00:05:15] Speaker 01:
So it's the very people who had expressed alarm?

[00:05:19] Speaker 00:
No, no.

[00:05:20] Speaker 00:
So these are different people.

[00:05:21] Speaker 00:
Officer Cosper also reports that as he was making his way to the house, he saw two women walking near, walking into the house.

[00:05:29] Speaker 00:
And it was those two.

[00:05:30] Speaker 00:
So they arrived just before Officer Cosper.

[00:05:33] Speaker 00:
They see their mother and grandmother who had been suffering from dementia for some time having this episode, you know, having a bit of a freak out.

[00:05:42] Speaker 00:
And they calmed her down and they were hugging her.

[00:05:46] Speaker 00:
Everything was calm and quiet when he arrives.

[00:05:49] Speaker 00:
He says, police department, please exit the house.

[00:05:53] Speaker 00:
And that's when the two women still calm and quiet.

[00:05:57] Speaker 00:
And that's when these two women exit because they were ordered to do so by officer Cosper.

[00:06:01] Speaker 00:
One of them mutters something in Spanish.

[00:06:03] Speaker 00:
The other one, the granddaughter says, please be very careful with her.

[00:06:08] Speaker 00:
And I may touch on this later that I think the district court found a fact it should not have on what was the meaning and context of that statement, please be very careful with her.

[00:06:20] Speaker 00:
And then Officer Cosper immediately sees Amelia Baca standing there and pours gasoline onto the situation.

[00:06:29] Speaker 00:
It had been very calm and peaceful when he arrived.

[00:06:32] Speaker 00:
And it is that escalation

[00:06:34] Speaker 00:
not just a failure to deescalate, but it is that escalation that amounts to a Fourth Amendment violation as described in Savio's v. Husk and other cases before and since.

[00:06:48] Speaker 03:
Counsel, could I just stop you there and help me understand, in your view, what the officer should have done?

[00:06:55] Speaker 00:
Gladly, yes, thank you.

[00:06:58] Speaker 00:
I have my timestamp notes in my briefcase,

[00:07:01] Speaker 00:
At something like 13 seconds into the encounter, another officer shows up.

[00:07:06] Speaker 00:
Officer Fierro is there.

[00:07:07] Speaker 00:
And we have his body cam too.

[00:07:09] Speaker 00:
And so we're able to time exactly what happened when.

[00:07:12] Speaker 00:
Officer Cosper knew almost immediately, well, I'll get back to Officer Fierro.

[00:07:20] Speaker 00:
Officer Cosper knew almost immediately that this is a woman suffering from mental illness.

[00:07:24] Speaker 00:
What he should have done and could have done.

[00:07:26] Speaker 02:
How did he know she was suffering from mental illness?

[00:07:31] Speaker 00:
When the two family members that walked out of the house, the one said, please be very careful with her.

[00:07:37] Speaker 02:
That told him that she suffered from mental illness?

[00:07:40] Speaker 00:
They did just a few seconds later when they saw his reaction.

[00:07:44] Speaker 00:
And this is undisputed.

[00:07:45] Speaker 00:
This is in the record.

[00:07:47] Speaker 00:
There is a moment in the video where Officer Cosper says, OK, back up.

[00:07:52] Speaker 00:
And what is undisputed now is he was saying that in response to being told that she's having a mental issue.

[00:07:58] Speaker 00:
She has a mental health issue.

[00:08:00] Speaker 02:
And that is something like... I think I heard that, but when you reported the conversation a moment ago, you just mentioned be careful with her.

[00:08:08] Speaker 02:
So there were two things that they said.

[00:08:10] Speaker 00:
That's right.

[00:08:11] Speaker 00:
As they're shuffling out, she says, please be very careful with her.

[00:08:14] Speaker 00:
Officer Cosberg starts, draws his weapon, points his weapon at Amelia Baca, starts yelling at her.

[00:08:21] Speaker 00:
And that's when they come back and say, no, no, no.

[00:08:22] Speaker 00:
And that's when they tell him that she has some mental health issues.

[00:08:25] Speaker 00:
When he says, okay, back up.

[00:08:28] Speaker 00:
That's him saying, OK, I hear you about the mental illness, but doesn't do anything to change his approach.

[00:08:33] Speaker 00:
That's something like t minus 26 seconds into the encounter.

[00:08:36] Speaker 00:
I left my notes back at the table.

[00:08:41] Speaker 00:
What could he and should he have done, Your Honor?

[00:08:44] Speaker 00:
And what's required by the case law is to inquire.

[00:08:48] Speaker 00:
What am I dealing with?

[00:08:49] Speaker 00:
Who is this person?

[00:08:50] Speaker 00:
He can do that while still keeping her in his sights

[00:08:54] Speaker 00:
and making sure that there's no one else in any immediate danger.

[00:08:57] Speaker 03:
Well, inquired to who?

[00:08:59] Speaker 00:
To the woman who just told him she has mental health issues.

[00:09:01] Speaker 03:
He was supposed to have a more extensive conversation with the family members there, is what you're saying.

[00:09:07] Speaker 00:
That's right.

[00:09:08] Speaker 03:
Well, so was the backup, was that, I mean, he had to get them out of there, didn't he?

[00:09:17] Speaker 03:
I mean, how was he supposed to have

[00:09:20] Speaker 03:
An extended conversation, I guess is my question, given the situation.

[00:09:27] Speaker 00:
Well, again, when he arrived, everything is peaceful and quiet.

[00:09:31] Speaker 00:
He could have asked them, what's going on?

[00:09:33] Speaker 00:
What am I dealing with here?

[00:09:33] Speaker 00:
Because at that moment, nobody was in any danger.

[00:09:36] Speaker 00:
Everything was calm.

[00:09:39] Speaker 00:
He could have asked them then, what's going on?

[00:09:41] Speaker 00:
What's going on here?

[00:09:42] Speaker 00:
Instead, he escalated this situation into that frenetic scene that we see on the video.

[00:09:51] Speaker 00:
Now, it's undisputed at this point in the video that he knows that he's dealing with someone with dementia or some sort of mental health episode.

[00:09:59] Speaker 00:
At that point, he could have and should have asked, OK, what's going on here?

[00:10:04] Speaker 00:
Tell me about this woman.

[00:10:06] Speaker 00:
He doesn't do that.

[00:10:07] Speaker 00:
Instead, he just ramps up the intensities.

[00:10:10] Speaker 00:
I'm very uncomfortable using the F word in front of your honors.

[00:10:14] Speaker 00:
But he starts screaming at expletives.

[00:10:18] Speaker 00:
at Miss Baca.

[00:10:19] Speaker 01:
Was it okay for him to dry his firearm?

[00:10:28] Speaker 00:
I don't know that our expert is not, I don't know that that in itself creates a constitutional violation.

[00:10:36] Speaker 00:
The fact that it was also a, that this high beam flashlight that's attached to his weapon

[00:10:44] Speaker 00:
probably didn't help with her confusion and her bewilderment.

[00:10:47] Speaker 00:
And that's something that we discussed below.

[00:10:53] Speaker 00:
Could have, you know, I'm sorry.

[00:10:55] Speaker 00:
Did he have a duty to retreat?

[00:10:59] Speaker 00:
I don't, he could have.

[00:11:01] Speaker 00:
He certainly had that option.

[00:11:03] Speaker 00:
And I'm meeting into my rebuttal time here, but I do want to answer your question.

[00:11:08] Speaker 00:
He could, not necessarily a retreat,

[00:11:12] Speaker 00:
but he could have changed his position, particularly once Officer Fierro arrives, right?

[00:11:17] Speaker 01:
So- Who had a taser.

[00:11:19] Speaker 00:
Who had a taser, and Officer Appelzoller, who was just a few seconds behind Officer Fierro, about 15 or 20 seconds.

[00:11:26] Speaker 00:
If he was worried, as Officer Cosper said, that when she was coming out of the home, if he was worried about other people in the house, it's probably a good thing, right?

[00:11:35] Speaker 00:
If you want to draw her out, you have another officer there to assist.

[00:11:39] Speaker 00:
So in that sense, yes, Your Honor, you should have

[00:11:42] Speaker 00:
not necessarily retreated, but repositioned himself.

[00:11:45] Speaker 01:
And I know you're into your rebuttal time, but one last question, which is, did you come across the case of Tenorio versus Pitzer in your research?

[00:11:52] Speaker 01:
And are you relying on that?

[00:11:56] Speaker 00:
No, Your Honor.

[00:11:56] Speaker 00:
I don't think that one's been cited in the briefs.

[00:12:01] Speaker 00:
Thank you.

[00:12:12] Speaker 04:
Good morning.

[00:12:14] Speaker 04:
I'm Filomena Housler from Robles, Rialin, and Naya, and I'm here to represent the Apolize.

[00:12:20] Speaker 04:
That includes, for purposes of the case, Officer Jared Cosper, the city of Las Cruces, and its former police chief, Dominguez.

[00:12:32] Speaker 04:
But for purposes of the order that's on appeal, that relates only to the decision on a motion for partial summary judgment by Officer Cosper, where he argued he was entitled to qualified immunity.

[00:12:46] Speaker 04:
So I'd just like to open by saying, this I think is a classic totality of the circumstances case where an officer had to make a decision in a split second.

[00:13:01] Speaker 04:
And why I say that is the officer arrived in response to a call where family members had reported they were barricaded in the house and Ms.

[00:13:15] Speaker 01:
Vaca.

[00:13:16] Speaker 01:
Barricaded in a bedroom.

[00:13:17] Speaker 04:
Barricaded in a bedroom.

[00:13:18] Speaker 01:
Meaning safe from her.

[00:13:21] Speaker 04:
Safe from her although there was a transmission by dispatch before the officer arrived that indicated

[00:13:30] Speaker 04:
there was another child who was not in the room with the mother and where she was in the house was not known by the mother.

[00:13:39] Speaker 01:
That's in the record, huh?

[00:13:40] Speaker 04:
That's in the record, yes.

[00:13:42] Speaker 04:
And so that's one of the things the officer heard right before he arrived and as he turned onto the street and was parking, it's in the record that the last transmission he heard was that dispatch reported the line was

[00:13:59] Speaker 04:
no longer open.

[00:14:00] Speaker 01:
He received or he heard?

[00:14:02] Speaker 01:
He heard, I believe.

[00:14:04] Speaker 01:
Well, does he testify that he heard it?

[00:14:07] Speaker 04:
I know it's in the dispatch record.

[00:14:10] Speaker 04:
He does state he heard it.

[00:14:12] Speaker 01:
It only matters what he heard, right?

[00:14:14] Speaker 04:
Yeah.

[00:14:15] Speaker 04:
That's what he definitely said he heard and it's backed up by the transmission record that the dispatch reported the line went cold.

[00:14:24] Speaker 04:
In other words,

[00:14:26] Speaker 04:
It was open line, the caller had stopped speaking and could only hear a child crying in the background.

[00:14:34] Speaker 04:
And that's concerning and we bring that up in the brief because that could indicate

[00:14:39] Speaker 04:
what suddenly happened to the caller who had asked to stay on the line or the police coming and was reporting that she was very fearful of her mother who had threatened to kill her and had been acting out killing motions, stabbing motions with a knife.

[00:14:57] Speaker 01:
Toward the floor.

[00:14:58] Speaker 04:
Toward the floor.

[00:14:59] Speaker 04:
And as the officer approached, having that last piece of information in his mind about the call, the line being open at that point,

[00:15:10] Speaker 04:
He heard what sounds like to him a tinging sound.

[00:15:16] Speaker 04:
And that is captured on his body worn camera video as he enters the patio and gets close to walking up onto the sort of enclosed, semi-enclosed porch area of the house.

[00:15:30] Speaker 04:
But this entire encounter took 40 seconds.

[00:15:33] Speaker 04:
Now that's concerning.

[00:15:34] Speaker 04:
It's short.

[00:15:36] Speaker 04:
And it ended in the death of the suspect.

[00:15:39] Speaker 04:
And she was an older woman.

[00:15:41] Speaker 04:
And there does seem to be evidence that he was at least advised after she appeared in the doorway with knives that she had mental issue.

[00:15:52] Speaker 04:
I think we note on footnote eight.

[00:15:55] Speaker 02:
Well before he shot her, right?

[00:15:57] Speaker 04:
Well before he shot her.

[00:16:00] Speaker 04:
But at any rate,

[00:16:02] Speaker 04:
It was a 40 second encounter, but in the last five seconds of that 40 second encounter, it can only be described as a tense, rapidly evolving situation.

[00:16:15] Speaker 04:
In fact, if you back up three seconds from that, within the last eight seconds, the suspect changes her posture, demeanor, and position twice in totally opposite ways.

[00:16:29] Speaker 01:
So she's getting command screamed at her.

[00:16:32] Speaker 01:
and lots of F-bombs which she may not be accustomed to.

[00:16:36] Speaker 01:
So the heightened, any sort of a reaction from her I would expect that there would be some.

[00:16:44] Speaker 01:
And when you say things changed and look how the temperature rose, she's almost sleepwalking is what I see.

[00:16:55] Speaker 01:
I don't see someone who has raised a knife.

[00:16:58] Speaker 01:
I don't see someone who

[00:17:00] Speaker 01:
What I see is someone who's having difficulty processing information and dealing with an unexpected situation, directly contrary to what Officer Cospers saw when he peeked through the doorway, which is she's talking calmly with two women.

[00:17:16] Speaker 04:
Well, respectfully, Your Honor.

[00:17:18] Speaker 01:
Who are within two feet of her?

[00:17:20] Speaker 01:
And obviously, there's no concern about knife blade.

[00:17:23] Speaker 04:
Respectfully, the record doesn't show that he peeked through the doorway.

[00:17:29] Speaker 01:
Well, when he first looked through the doorway then.

[00:17:32] Speaker 01:
He came around the corner.

[00:17:33] Speaker 01:
He looks into the room where the woman is speaking very calmly with two adults.

[00:17:41] Speaker 01:
And that's the video.

[00:17:44] Speaker 04:
That's the video.

[00:17:45] Speaker 04:
And it's mounted right here.

[00:17:48] Speaker 04:
So think of it as a GoPro.

[00:17:50] Speaker 04:
You can see what he's seeing.

[00:17:52] Speaker 02:
Who is endangered?

[00:17:54] Speaker 02:
when the officer shot her.

[00:17:56] Speaker 04:
The officer believed he was in danger.

[00:17:59] Speaker 04:
He did?

[00:18:00] Speaker 04:
Yes, he did.

[00:18:01] Speaker 02:
You've looked at the video.

[00:18:02] Speaker 04:
I've looked at the video.

[00:18:04] Speaker 02:
This little old lady holding two knives down, looking confused.

[00:18:12] Speaker 02:
I'm not a young, vigorous guy.

[00:18:15] Speaker 02:
I wouldn't have been afraid of her.

[00:18:16] Speaker 02:
I could have dealt with it.

[00:18:19] Speaker 02:
And the officer, it's just amazing to me that he would

[00:18:23] Speaker 02:
that if he were rational, that he would think he was in danger from her.

[00:18:28] Speaker 04:
Well, Your Honor, that's certainly the plaintiff's argument.

[00:18:31] Speaker 04:
The district court did not find that through a careful analysis of all the Larson factors.

[00:18:38] Speaker 02:
Sometimes there's a problem with those.

[00:18:40] Speaker 02:
I'm not a fan of all these factors.

[00:18:45] Speaker 02:
They complicate the issue.

[00:18:46] Speaker 02:
Just look at what was going on there.

[00:18:48] Speaker 02:
Was she a threat to the officer?

[00:18:53] Speaker 02:
Those factors don't account for the fact that she's a little old lady who looks confused, who's holding the knives down.

[00:19:00] Speaker 02:
That's not one of the factors.

[00:19:03] Speaker 04:
Well, Your Honor, I would dispute the fact that she looks confused.

[00:19:12] Speaker 04:
I guess people can view the video and take from it whether she looks confused or she appears to be understanding his commands.

[00:19:20] Speaker 02:
I disagree, but forget that.

[00:19:22] Speaker 04:
Yeah.

[00:19:23] Speaker 02:
that little old lady holding those knives down was not a danger to a large officer who's probably got some sort of vest.

[00:19:39] Speaker 02:
I don't care about that really.

[00:19:41] Speaker 02:
But she wasn't doing anything to show she was going to attack him and stab him or anything like that.

[00:19:50] Speaker 04:
The question is, if the officer was mistaken about her intent, was his mistake a reasonable one?

[00:20:00] Speaker 04:
And if so, he's entitled to qualified immunity.

[00:20:03] Speaker 04:
And the court found it was a reasonable one after analyzing all those factors.

[00:20:10] Speaker 02:
And he certainly didn't sound reasonable.

[00:20:12] Speaker 02:
He's hollering.

[00:20:16] Speaker 04:
Well, for 40 seconds, the court found he ordered her 16 times to drop the weapon.

[00:20:23] Speaker 04:
And even the plaintiff admits in the opening brief, it appeared that she mouthed the words no.

[00:20:31] Speaker 04:
And she was shaking her head.

[00:20:34] Speaker 02:
I mean, this little old lady... Could she have been saying, no, I don't understand?

[00:20:38] Speaker 02:
No complaining.

[00:20:38] Speaker 04:
It does not appear to be that way from the video.

[00:20:41] Speaker 04:
And the question is, even if the officer was mistaken about that, could a reasonable officer have believed that she was saying no when she's shaking her head, shaking the knives up and down?

[00:20:53] Speaker 01:
Now, there you go with the gesture, both hands.

[00:20:56] Speaker 01:
And my understanding is that both knives are in one hand.

[00:20:59] Speaker 04:
Both knives initially were in separate hands.

[00:21:02] Speaker 01:
Yes, initially.

[00:21:03] Speaker 01:
But now you're talking about her response.

[00:21:06] Speaker 01:
And by that time, the knives were in one hand.

[00:21:09] Speaker 04:
No, she moved the knives to one hand.

[00:21:13] Speaker 01:
Before she was shot.

[00:21:14] Speaker 04:
Before she was shot, but about 20 seconds into the encounter, maybe a little bit more.

[00:21:20] Speaker 04:
when this is the first change that I mentioned in her behavior.

[00:21:25] Speaker 02:
And does that make her more dangerous to have two knives in one hand, or does that mean that it's virtually impossible for her to have her two?

[00:21:33] Speaker 04:
Well, the point is, I guess you could say most people are right-handed, so she moved them both into her right hand.

[00:21:38] Speaker 04:
But the point I'm getting at is, at that point when she transferred them, this change in behavior, she stepped back, stretched,

[00:21:49] Speaker 04:
the arm that had the hand that had the two knives in it now, stretched it out over the sofa and out of view, and then made what can only be described as a faint sort of motion in that suggesting to the officer, lower your gun, and she didn't make any comment, and her demeanor seemed calm, the officer testified,

[00:22:16] Speaker 04:
He thought at that point that she was possibly going to comply and said, ordered her again, put the knives down now.

[00:22:26] Speaker 04:
Then, this is the last five seconds, she changes her demeanor, stance, position again, brings both the arm down into view, rocks back and takes off and closes three feet

[00:22:44] Speaker 04:
of the distance that was between them for the entire encounter, which was about 10 feet.

[00:22:49] Speaker 01:
You're talking like she is lunging at the officer.

[00:22:51] Speaker 04:
I didn't say lunging.

[00:22:52] Speaker 01:
And there's nothing like that on the video.

[00:22:56] Speaker 04:
We didn't say, and it was in the video.

[00:22:58] Speaker 01:
Well, lunging I would understand.

[00:23:00] Speaker 01:
Even an old lady, maybe with two knives in her hand, which doesn't sound like the best way to do it, were to lunge at the officer, I hear you.

[00:23:09] Speaker 01:
But what we're talking about is commands, orders, loud language, foul language, and a woman who you can say she looks like she's ready for the men's exam, she looks to me like someone who's disoriented, and she takes two small steps and she's dead.

[00:23:26] Speaker 04:
Well, Your Honor, again, this was very similar to a state of Taylor case where there's an unprovoked change

[00:23:38] Speaker 04:
in the position of the suspect in these last seconds.

[00:23:43] Speaker 04:
And that was not provoked by the officer.

[00:23:45] Speaker 01:
They're the person could be drawing a gun.

[00:23:47] Speaker 01:
That was the concern.

[00:23:49] Speaker 01:
And it was not an old 71-year-old lady.

[00:23:52] Speaker 01:
It was a young male who was disobeying the cops walking away from them.

[00:23:56] Speaker 01:
And the concern was we're going to get shot.

[00:24:00] Speaker 01:
There was an immediate harm that's not in play here.

[00:24:05] Speaker 04:
Court did believe it was an immediate threat based on the officer's testimony and the totality of all the circumstances, including one mentioned before.

[00:24:14] Speaker 04:
He's not, you know, he's wearing a vest.

[00:24:17] Speaker 04:
He wasn't wearing a stab proof vest.

[00:24:20] Speaker 01:
Have you read, have you read Tenorio versus Pitzer?

[00:24:23] Speaker 04:
Yes, I believe we cited it in our brief.

[00:24:25] Speaker 01:
If so, I don't remember that.

[00:24:27] Speaker 01:
But what about that case?

[00:24:29] Speaker 01:
It's you have someone walking across the room and is

[00:24:35] Speaker 01:
Disobeying and not an old lady by the way and someone who's actually made threats and walking across a room who refuses to drop a knife in a hand and is shot and No qualified immunity.

[00:24:51] Speaker 01:
Well, I believe it's very different and we distinguish I agree It's very different to which I think that the case in Tenorio is much stronger for qualified immunity than this one Tell me why you think differently

[00:25:02] Speaker 04:
Well, the case in Tenorio, the officers actually walked into the person's house.

[00:25:08] Speaker 04:
He was leaving.

[00:25:09] Speaker 04:
I don't believe there was any evidence that he had time to comply with the order.

[00:25:15] Speaker 04:
Was it clear that he had time to comply with the order?

[00:25:17] Speaker 01:
He came much further.

[00:25:19] Speaker 01:
He came much further than this woman did.

[00:25:21] Speaker 01:
He came out of the kitchen and across the living room.

[00:25:23] Speaker 01:
So he had plenty of time.

[00:25:25] Speaker 04:
But in this case, the officer never changed his position, had no

[00:25:30] Speaker 04:
real option to retreat.

[00:25:32] Speaker 04:
He was in a semi-closed area.

[00:25:33] Speaker 01:
Why do you say that?

[00:25:34] Speaker 01:
That's an important factor for me, if the officer had no option to retreat, and that was an issue in Tenorio, is that it was jammed up in the doorway.

[00:25:44] Speaker 01:
But here, we see that he came down a hallway, looked, I won't say peeked, looked into the kitchen, and the other officer had taken the women out toward the driveway, I assume.

[00:25:57] Speaker 01:
So there

[00:25:58] Speaker 01:
a good six, eight feet of unobstructed space there that he could back up into.

[00:26:03] Speaker 04:
I'm sorry, Your Honor.

[00:26:04] Speaker 04:
That is not correct.

[00:26:06] Speaker 04:
The officer never stepped into the house.

[00:26:09] Speaker 04:
He never peeked into the kitchen.

[00:26:10] Speaker 04:
The kitchen is not in view from where he was.

[00:26:13] Speaker 01:
Well, wherever the woman was standing, was she not standing in the kitchen?

[00:26:16] Speaker 04:
She was standing a few feet back from the threshold of the doorway initially.

[00:26:22] Speaker 04:
And at the time he shot, she closed that distance and was

[00:26:26] Speaker 04:
had her left foot on the open threshold of the doorway, approximately six feet away from the officer.

[00:26:34] Speaker 01:
You're saying she reached the threshold?

[00:26:36] Speaker 04:
Yes.

[00:26:37] Speaker 01:
Well, I guess we'll just watch the video.

[00:26:39] Speaker 04:
And it's an open threshold.

[00:26:40] Speaker 04:
The first bystander who exited opened the door, which was a screen door that was closed when the officer arrived, so he couldn't fully see the figures, only could see

[00:26:53] Speaker 04:
there what appeared to be the shadow of two figures speaking inside.

[00:26:58] Speaker 04:
And that first woman who exited opened the screen door fully against the side of the house so that the officer could see past the screen door, but into the living room opposite directly where he was standing, which was with his back up against the wall in that semi-enclosed entryway.

[00:27:20] Speaker 04:
And the court discussed the layout

[00:27:23] Speaker 04:
of the area where he was at length.

[00:27:26] Speaker 04:
And those facts were not really disputed by the plaintiff.

[00:27:31] Speaker 04:
So again, I mean, plaintiff interprets the video as you have been arguing and as Judge Hartz has been asserting, the video seems to show that this was a confused older woman.

[00:27:46] Speaker 04:
But the court did the careful analysis of all those factors and found

[00:27:53] Speaker 04:
True, and the officer did not dispute this, that she did not technically make a hostile motion with the knife.

[00:28:04] Speaker 04:
She didn't raise it up Anthony, you know, in the classic psycho movie style overhead as though to make an overhead stabbing motion.

[00:28:12] Speaker 04:
She didn't lunge, but she was armed with two knives and that change in her demeanor

[00:28:19] Speaker 04:
in the last couple seconds and she closed the gap.

[00:28:23] Speaker 04:
It's important to recognize this officer never moved from where he was when he announced his presence, stepped back and motioned the two bystanders out.

[00:28:34] Speaker 04:
All he did was raise the gun when Ms.

[00:28:38] Speaker 04:
Baca appeared at the door, knife in hand, and given the information he had about the situation inside the house,

[00:28:47] Speaker 04:
And her appearing like that, that was not unreasonable.

[00:28:50] Speaker 04:
As you asked, what was the officer supposed to do?

[00:28:53] Speaker 01:
Back up.

[00:28:54] Speaker 04:
Back up.

[00:28:55] Speaker 04:
It wasn't physically possible, the court.

[00:28:58] Speaker 01:
I don't know why you say that.

[00:28:59] Speaker 01:
The video shows otherwise.

[00:29:01] Speaker 01:
We see down the hallway and there's nobody there.

[00:29:04] Speaker 04:
I don't think we can see down the hallway from that video.

[00:29:08] Speaker 01:
Where was the other officer and the two women standing?

[00:29:12] Speaker 04:
The two women were standing right at Officer Baca's side.

[00:29:16] Speaker 04:
Heading him in, you can see their hands, you can hear them until Officer Fierro arrived, which was about, and it's in the briefs and in the court's order, it was about, I believe, 14 seconds before Officer Cospur fired at Miss Baca.

[00:29:34] Speaker 04:
Officer Fierro was immediately occupied with trying to drag those women away

[00:29:41] Speaker 04:
And he was with them a few steps away on the patio section.

[00:29:46] Speaker 04:
He was not on the upper step where Officer Cosper was, but he was within a few feet of that.

[00:29:53] Speaker 04:
And Officer Cosper testified that he could not retreat to that area and keep an eye on Ms.

[00:30:01] Speaker 04:
Baca, keep her within sight at the same time.

[00:30:04] Speaker 04:
And I think that's what happened.

[00:30:06] Speaker 01:
Oh, I'll concede that point.

[00:30:06] Speaker 01:
I'll concede that he had plenty of room, but he thought he would lose sight of her.

[00:30:11] Speaker 01:
But I won't concede the point that he couldn't have backed up, which is what I thought you were saying.

[00:30:16] Speaker 01:
I don't see Tenorio cited in your brief.

[00:30:19] Speaker 04:
I believe it was cited, but I'll have to look it up.

[00:30:26] Speaker 04:
I think it's page 23 of Appellant's appendix, page 034.

[00:30:40] Speaker 04:
on that appendix.

[00:30:41] Speaker 01:
Appellant?

[00:30:42] Speaker 01:
Oh, I thought you said it was in the brief.

[00:30:46] Speaker 04:
Well, that is not in our response brief, but it is in the brief below.

[00:30:52] Speaker 04:
Sorry.

[00:30:53] Speaker 04:
It is in the brief below.

[00:30:54] Speaker 01:
OK.

[00:30:55] Speaker 01:
Well, thank you.

[00:30:56] Speaker 04:
You're welcome, Your Honor.

[00:30:59] Speaker 02:
Your time has long elapsed.

[00:31:00] Speaker 02:
Thank you.

[00:31:01] Speaker 02:
Thank you.

[00:31:04] Speaker 02:
You have three and a half minutes.

[00:31:05] Speaker 02:
That should be adequate.

[00:31:07] Speaker 00:
Thank you, Your Honor.

[00:31:09] Speaker 00:
Your Honors.

[00:31:10] Speaker 00:
To follow up on one point that was just discussed, at page 14 of the district court's opinion, the district court finds Baca did not make any hostile motions with the knives toward Cosper.

[00:31:22] Speaker 00:
Cosper admits that Baca did not raise the knives toward him in any kind of slicing, stabbing, or thrusting motion.

[00:31:29] Speaker 00:
And as your honors pointed out, that is what the video shows.

[00:31:36] Speaker 00:
She is very small, very frail.

[00:31:41] Speaker 02:
You're a very good district judge in this case.

[00:31:44] Speaker 02:
I agree.

[00:31:44] Speaker 02:
How do you think you work for what you say is an error?

[00:31:48] Speaker 00:
What do you think happened?

[00:31:50] Speaker 00:
I have great respect for Judge Brack, and I certainly don't.

[00:31:54] Speaker 00:
I don't think I said anything very critical of him, and I certainly don't mean to be, but judges make errors all the time.

[00:31:59] Speaker 00:
That's why we have the courthouse here.

[00:32:02] Speaker 00:
We don't reverse that often, actually.

[00:32:07] Speaker 00:
Excuse me?

[00:32:07] Speaker 00:
We don't reverse that often, actually.

[00:32:09] Speaker 00:
They do very well.

[00:32:11] Speaker 00:
Well, I'm keeping my fingers crossed on this one, Your Honor.

[00:32:14] Speaker 00:
But I don't know why he made these findings.

[00:32:21] Speaker 00:
There are some other findings of fact he made in his opinion that touch on what's reasonable and unreasonable.

[00:32:29] Speaker 00:
These are questions of fact that should have been left to the jury.

[00:32:31] Speaker 00:
He even says in his opinion that whether Cosper acted unreasonably was a close call.

[00:32:38] Speaker 00:
It should be left to the jury on reasonableness.

[00:32:42] Speaker 00:
Even if this court doesn't find that the violation here is clearly established as of April 2022, the court can and should still find that a reasonable jury could find that what Officer Cosper did here was unreasonable.

[00:32:58] Speaker 00:
And that's the other second part of the appeal here that I didn't really get to touch on when I was up here earlier.

[00:33:09] Speaker 00:
You know, qualified immunity gives a lot of leeway to officers, as it should, because they often find themselves walking into very chaotic situations.

[00:33:20] Speaker 00:
But this is not one of those.

[00:33:21] Speaker 00:
Officer Cosper did not walk into a chaotic situation.

[00:33:24] Speaker 00:
He walked into a calm, peaceful, quiet situation that had been resolved by these two women.

[00:33:31] Speaker 00:
First thing he did was tell them to leave, and then he created the chaos.

[00:33:36] Speaker 00:
Officer Cosper is the one that created this

[00:33:38] Speaker 00:
scene that you see on the video.

[00:33:44] Speaker 00:
I stand for any questions, but I have nothing else to add at this point.