[00:00:00] Speaker 03:
All right.

[00:00:00] Speaker 03:
Our next case is 23-6128, Clerkly v. Holcomb.

[00:00:07] Speaker 03:
And for the appellant, Ms.

[00:00:09] Speaker 03:
Felkner, you may proceed.

[00:00:10] Speaker 03:
Yes.

[00:00:11] Speaker 01:
Good morning, Your Honors.

[00:00:13] Speaker 01:
I am Stacey Haas-Felkner, and I represent Appellant Kyle Holcomb, who is a Sergeant with the Oklahoma City Police Department.

[00:00:21] Speaker 01:
This appeal arises out of the March 10, 2019 non-fatal shooting of Appellee Lorenzo Clerkly by Appellant Holcomb.

[00:00:30] Speaker 01:
Berkeley filed suit alleging that Sergeant Holcomb's use of deadly force violated Berkeley's 4th and 14th Amendment rights to be free from objectively unreasonable seizure through excessive force.

[00:00:42] Speaker 01:
As a general rule, as I understand, this court's review in qualified immunity cases is limited to the questions of whether the facts that the district court ruled a reasonable jury could find would suffice to show a legal violation and whether the

[00:00:56] Speaker 01:
law was clearly established at the time of the alleged violation.

[00:00:59] Speaker 04:
Do you agree that the facts as found by the district court resulted in a constitutional violation?

[00:01:10] Speaker 04:
As found.

[00:01:12] Speaker 04:
I mean, I know you're challenging them.

[00:01:13] Speaker 01:
I believe that the facts as found by the district court, even if they show a constitutional violation, they do not

[00:01:26] Speaker 01:
create, they do not resolve the second part of the qualified immunity test, which is whether the law is clearly established.

[00:01:34] Speaker 01:
I would like to briefly address the- No, that's fine.

[00:01:39] Speaker 01:
Because I think this is a, the court has applied the exception for clear contrary video evidence in multiple deadly force cases, including two recent cases, both of which were decided after the district court decision in this case.

[00:01:54] Speaker 01:
Those are estate of George versus City of Rifle and Flores versus Henderson.

[00:02:01] Speaker 01:
In estate of George, the facts that the district court found were contradicted were that the suspect was frail, he had a disability, the officers made no attempt to control traffic or order the suspect to stop.

[00:02:15] Speaker 01:
And in Flores, the court found the district court finding with respect to where the officers were standing, the bedroom versus the hallway.

[00:02:23] Speaker 01:
I think that this is a case where the exception should apply because I believe the zoomed still frame from Holcomb's body cam clearly shows that there is an object in his hand or something black in his hand.

[00:02:37] Speaker 04:
Is it fair to say that a still captured at the very end of the video just prior to shots being fired clearly contradicts the district court's finding?

[00:02:52] Speaker 04:
Because I watched that video and it's here's what it seemed like to me that instantaneous with the kid walking around the house, you hear drop the gun.

[00:03:03] Speaker 04:
Boom, boom, boom.

[00:03:06] Speaker 04:
Like with, with no break in between and just watching it without stopping it at the very end.

[00:03:14] Speaker 04:
I mean, I couldn't lay my eyes on, on something that was, that was a firearm.

[00:03:22] Speaker 01:
Well, I think that that is part of the issue is it's not appropriate to stop it and to look at particular things because Sergeant Holcomb didn't have that luxury.

[00:03:32] Speaker 04:
I know, but don't you have to do that for your position to prevail?

[00:03:36] Speaker 04:
Because without stopping it at the very moment before the shots are fired, you can see nothing.

[00:03:44] Speaker 04:
Even stopped at the very moment before shots are fired, it's very unclear what you're looking at.

[00:03:50] Speaker 04:
To me.

[00:03:51] Speaker 01:
Well, I think that if it is unclear what you're looking at, that helps Sergeant Holcomb because I think the issue here is that the issue is not was there something in Clarkley's hand.

[00:04:06] Speaker 01:
The issue is was it reasonable for Sergeant Holcomb to perceive

[00:04:11] Speaker 01:
that there was something in the hand, and he was in danger.

[00:04:14] Speaker 01:
So if the video is not clear, then that helps Sergeant Holcomb.

[00:04:18] Speaker 03:
But the district court said if a jury could find that there was nothing in Clerkly's hand.

[00:04:23] Speaker 01:
That's correct.

[00:04:25] Speaker 01:
But I think that only addresses, that doesn't address the officer's reasonable perception.

[00:04:29] Speaker 03:
That comes back to the blatantly contradicted point.

[00:04:32] Speaker 01:
I don't think it does entirely, because the issue of what is in the suspect's hand

[00:04:40] Speaker 01:
is not the same issue as whether it's reasonable for the officer to perceive a threat.

[00:04:46] Speaker 01:
I would say the first is a factual issue and the second is a legal issue.

[00:04:49] Speaker 04:
I mean, it's sort of a threatening situation in and of itself.

[00:04:52] Speaker 04:
If that was enough, the officers, anytime someone stepped out from around the corner and surprised them in a dangerous situation, they could shoot them.

[00:05:03] Speaker 04:
You've got to perceive more.

[00:05:06] Speaker 01:
And I think Sergeant Holcomb did perceive more because the courts... I'm not saying he didn't.

[00:05:12] Speaker 04:
I'm saying we got to decide this from a video looking at like an eight inch hole in a fence.

[00:05:20] Speaker 04:
All we have is the video.

[00:05:22] Speaker 01:
But what you're deciding is not strictly what was in Clerkly's hand, but whether it was a reasonable mistake on Sergeant Holcomb's part.

[00:05:30] Speaker 01:
And I think those are two different issues.

[00:05:32] Speaker 00:
Well, but you're asking us to decide that

[00:05:36] Speaker 00:
that the video blatantly contradicts the district court's finding, and that's just simply not there.

[00:05:42] Speaker 01:
Well, as I said, I think this is an appropriate case, but I realize that that's not the only issue.

[00:05:48] Speaker 01:
So even if the video does not blatantly contradict the district court's finding... And we would lack jurisdiction then to consider that particular... I disagree, because this court still has jurisdiction to consider the issue

[00:06:03] Speaker 01:
if it accepts the court's facts found by the district court.

[00:06:07] Speaker 01:
Now, I believe that there's still a distinction between what the district court found a jury could see in Clerkly's hands and what it is reasonable for Holcomb to perceive.

[00:06:20] Speaker 01:
I mean, one of the primary cases is State of Taylor.

[00:06:24] Speaker 01:
And it's undisputed that Mr. Taylor was not armed.

[00:06:27] Speaker 01:
This was conclusively established after the shooting

[00:06:31] Speaker 01:
So the officer couldn't have seen, didn't see, and could not have seen a gun.

[00:06:35] Speaker 01:
However, despite the absence of a weapon, it was still his perception that Taylor posed a threat, although mistaken, was still reasonable.

[00:06:45] Speaker 03:
Well, isn't that the case where the victim raised his hand in a threatening motion and

[00:06:55] Speaker 03:
that the officer reasonably perceived that as a potential deadly threat?

[00:07:03] Speaker 03:
And the district court here found that there was no threatening motion by the plaintiff here.

[00:07:11] Speaker 01:
I thought the issue in Taylor was that he was digging in the front of his pants.

[00:07:16] Speaker 01:
And so as he started to lift his shirt and what could be an appendix pull is what the officer saw.

[00:07:25] Speaker 00:
I also think that- Isn't this a lot closer factually to Finch?

[00:07:33] Speaker 00:
Yeah, Finch.

[00:07:35] Speaker 00:
Why isn't it so very much like Finch where we had an officer who, where we had a district court say, regardless of what you thought you saw, the various videos show that this individual didn't have a gun.

[00:07:53] Speaker 00:
And also found that a reasonable officer would not have mistakenly perceived that this individual had a gun.

[00:08:03] Speaker 00:
And that's exactly what the district court said here.

[00:08:08] Speaker 00:
How is this different?

[00:08:10] Speaker 01:
I think with respect to the issue of whether the law is clearly established, even if you find a constitutional violation, you still have to address the second part.

[00:08:19] Speaker 01:
clearly established, which is the context in which the district court looked at Finch.

[00:08:24] Speaker 01:
And first, Finch can't apply because it was decided after the shooting in the instant case.

[00:08:32] Speaker 01:
But putting that aside, I think there's two critical distinctions between the facts in Finch and the facts in this case.

[00:08:39] Speaker 01:
First, in Finch, none of the officers identified themselves as police officers.

[00:08:46] Speaker 01:
Contrast that to the incident case where it's undisputed, Officer Shutter announced police were on the scene stating, hey, police department, come on out, and hey, this is the police department, come out now.

[00:08:57] Speaker 01:
And then second, the officers in Finch were relying solely on the information received from dispatch or the 911 caller.

[00:09:04] Speaker 01:
In the incident case, in contrast, Sergeant Holcomb and Officer Shutter personally heard shots as they approached the house.

[00:09:11] Speaker 00:
And they believed that those shots were cap guns or paint guns.

[00:09:15] Speaker 00:
They believe they could be packed.

[00:09:17] Speaker 00:
And they sound like that in the video, on the video.

[00:09:22] Speaker 01:
That is true.

[00:09:24] Speaker 01:
But when you get to the point where Sergeant Holcomb is facing someone, there's nothing to indicate that what he sees is a cap gun.

[00:09:33] Speaker 01:
There's no orange tip.

[00:09:35] Speaker 01:
What he sees looks like a real gun.

[00:09:39] Speaker 01:
And what was found in the yard looks like a real gun.

[00:09:41] Speaker 04:
When you look at the video, can you really tell

[00:09:45] Speaker 04:
I mean, which way the gun, like I said, I couldn't tell that it was a gun from the video, but could you tell, I mean, how are you, depending on the way the gun is pointing, I mean, how are you supposed to identify things that might out it as a cap gun?

[00:10:04] Speaker 01:
BB guns have an orange tip.

[00:10:06] Speaker 04:
Right, but if it's pointed down or it's partially in your pocket or something like that, you'll never be able to see that.

[00:10:12] Speaker 01:
To me, it looks like it's pointed as if he's doing this.

[00:10:16] Speaker 04:
You've got a better eye than I. Let me ask you one more question just so I don't keep jousting with you about facts.

[00:10:25] Speaker 04:
When we're considering the facts,

[00:10:30] Speaker 04:
to determine whether this video is blatantly contradicted.

[00:10:33] Speaker 04:
Do we look at them in a light most favorable to the plaintiff or to your client?

[00:10:41] Speaker 01:
Well, I think you have to look at it in the light most favorable to the plaintiff.

[00:10:46] Speaker 01:
But I also want you to, if you put aside my argument that we've got a blatant contradiction here, I still want you to look at the clearly established law issue, because I think that is a different issue.

[00:10:59] Speaker 04:
OK, so let me just ask you a question about that real fast.

[00:11:05] Speaker 04:
So you're going to have to give me the fact that it's not blatantly contradicted for purposes of your argument.

[00:11:15] Speaker 04:
I'm not asking you to concede that.

[00:11:18] Speaker 04:
So assuming that it's not blatantly contradicted by the video, we're then going to the whether it's clearly established, and would the question be,

[00:11:28] Speaker 04:
whether it's clearly established that an officer may shoot someone where the evidence suggests that they might have been unarmed.

[00:11:44] Speaker 01:
Well, I think in Taylor, the court says that the totality of circumstances that you look at includes application of the Graham and Larson facts to the full encounter from its inception through the moment the officer employed force.

[00:11:57] Speaker 01:
In other words, Holcomb's perception of whether he sees a gun and whether it's reasonable to believe Clerk Lee is armed has to take into account the 911 caller's information that people were going in this house with guns, that it has to take into account the shots Holcomb heard and then the announcement made by Cheddar at the front door.

[00:12:20] Speaker 01:
So Holcomb's not looking at this on a clean slate when he just sees this

[00:12:26] Speaker 01:
in the backyard, he knows that people went in the house with guns.

[00:12:32] Speaker 01:
Guns are being shot in the house, even if they might be cap guns.

[00:12:35] Speaker 04:
Which he describes as could be a cap gun from the way he heard it, right?

[00:12:41] Speaker 01:
Correct.

[00:12:43] Speaker 01:
He knows that there's been an announcement made at the front door that police are here, come out, and then in that context, he sees somebody in the backyard with something in his hand.

[00:12:53] Speaker 00:
I think that's very different.

[00:12:54] Speaker 00:
The problem with your analysis is you're talking about subjectively what he knew and what

[00:13:00] Speaker 00:
What the district court judge did here was correct.

[00:13:03] Speaker 00:
And that's to look at what a reasonable officer would do.

[00:13:06] Speaker 00:
And he made this finding that a reasonable officer in Holcomb's position would not have reasonably believed that clerically posed a mortal threat to Holcomb or others.

[00:13:18] Speaker 00:
Now, if that's a fact finding, then we're stuck with it.

[00:13:21] Speaker 00:
And your arguments about what he knew or didn't know really don't have any relevance.

[00:13:28] Speaker 00:
If it's a legal determination,

[00:13:30] Speaker 00:
That's a different question.

[00:13:32] Speaker 01:
I think it is a legal determination because in Anderson, not long ago, this court said the reasonableness of the use of force is a legal determination that can be determined by us on appeal in a qualified immunity case.

[00:13:46] Speaker 01:
And I also think that cases looking at the reasonableness of an officer's perception go back much earlier than Scott with the video exception.

[00:13:57] Speaker 01:
So I'd like to save the last minute for rebuttal, if I may?

[00:14:00] Speaker 03:
You may.

[00:14:17] Speaker 02:
the FLE Lorenzo Kirkley.

[00:14:23] Speaker 02:
A lot of appeals on qualified immunity grounds can be very complex.

[00:14:30] Speaker 02:
I really don't think this one is overly complex.

[00:14:34] Speaker 02:
I think to me, it's clear that there's no jurisdiction here because the entire appeal hinges upon

[00:14:44] Speaker 02:
Disputed facts, one, they're not accepting the facts in the light most favorable to plaintiff.

[00:14:53] Speaker 04:
Well, they're arguing an exception to that rule.

[00:14:56] Speaker 04:
And that is they're saying they can because it's blatantly contradicted by the video evidence.

[00:15:02] Speaker 02:
Right.

[00:15:03] Speaker 02:
And it's, I think when you review.

[00:15:07] Speaker 02:
The video, and as we say in the briefing, even looking at the still, which I think is appellant appendix 212, and I've looked at it for a long time repeatedly,

[00:15:26] Speaker 02:
And I'm still not, I'm still not seeing a gun.

[00:15:29] Speaker 02:
And to say that it's blatantly contradicted by the record, I just don't, I don't see that.

[00:15:37] Speaker 02:
I mean, one of the cases that council mentioned is a state of George versus city of rifle.

[00:15:46] Speaker 02:
And I think that that case, the facts of that case really demonstrate how rare it is for a district court to get it that wrong.

[00:15:55] Speaker 02:
When you have video evidence, that was a prolonged event on a bridge, this George

[00:16:05] Speaker 02:
was suicidal, was undisputed that he had a gun.

[00:16:08] Speaker 02:
He had a gun and at various times was either brandishing it or had it behind the small of his back.

[00:16:18] Speaker 02:
There was a finding by the district court that George was clearly frail with some form of physical disability, but the video actually showed him running around maneuvering.

[00:16:30] Speaker 02:
There was evidence that he worked in construction.

[00:16:32] Speaker 02:
One of the other findings that the district court made in that case is that there was no effort made by the officers to control the traffic on the bridge.

[00:16:43] Speaker 02:
The evidence was contrary to that, that they requested assistance from the sheriff's office.

[00:16:50] Speaker 02:
And then third, that George stepped back over the rail.

[00:16:55] Speaker 02:
Again, the district court's finding.

[00:16:58] Speaker 02:
and started jogging towards town and that no warning, he was given no warning to stop.

[00:17:04] Speaker 02:
But the record, the video record showed that he was, as he was jogging away, again armed with a gun, that he was repeatedly

[00:17:14] Speaker 02:
told to stop and kept going before the shot was fired.

[00:17:19] Speaker 02:
So there's just no, there's no similarity between that kind of case and this case where at very, very best it's a disputed fact as to whether there was any reason for

[00:17:38] Speaker 02:
or it was reasonable objectively for Officer Hocum to believe that he was in danger, that Mr. Clarkley was holding a gun, pointing it at him.

[00:17:50] Speaker 00:
We did say in the Finch case, we described that as a question of fact.

[00:17:55] Speaker 00:
The reasonableness of the officer's perception was a disputed fact for the juries, what we said, and the district court said so.

[00:18:04] Speaker 00:
And we accepted that.

[00:18:05] Speaker 00:
But we do have other cases where we seem to suggest that reasonableness is a legal question.

[00:18:12] Speaker 00:
And I think that's what they're really arguing here is accepting at this point, accepting that the gun, that he didn't have a gun or an object, as the district court found, even accepting that, that his

[00:18:26] Speaker 00:
belief was still reasonable.

[00:18:29] Speaker 00:
And if that's a legal question, then we do have jurisdiction to consider that.

[00:18:33] Speaker 00:
If it's a factual question, we don't.

[00:18:36] Speaker 02:
I think in this case, it's inherently a factual question.

[00:18:40] Speaker 02:
And you can't separate that analysis.

[00:18:43] Speaker 02:
You're looking at the objective reasonableness, the totality of the circumstances.

[00:18:51] Speaker 02:
That's traditionally and usually a decision that's going to be made by

[00:18:56] Speaker 02:
made by a jury when there are genuine disputes.

[00:18:59] Speaker 00:
Yeah, it seems mixed to me in the sense that we've got some facts that a jury is going to have to decide.

[00:19:06] Speaker 03:
And to follow up on that, the essence of Graham is that we don't expect or

[00:19:11] Speaker 03:
Or in this excessive force context, officers responding to a dangerous situation have to make a split second decision.

[00:19:22] Speaker 03:
And this video, if anything, exemplifies what a split second decision has to be.

[00:19:29] Speaker 03:
And for you to prevail, we're going to have to write an opinion that says it's objectively unreasonable.

[00:19:36] Speaker 03:
Unreasonable, I'm flipping the terminology a bit, for Holcomb to

[00:19:41] Speaker 03:
Engaged in this conduct where he was responding to a felony, armed people in a home, high crime area.

[00:19:50] Speaker 03:
Clerkly partially matched the description of the suspect.

[00:19:54] Speaker 03:
He was in the backyard following another officer's announcement that they come out the front door.

[00:20:00] Speaker 03:
So he might have been escaping or fleeing.

[00:20:03] Speaker 03:
And Holcomb had heard shots of some sort, maybe paintball, maybe cap gun, but maybe not.

[00:20:09] Speaker 03:
And Holcomb was exposed because

[00:20:11] Speaker 03:
clearly, one thing clear from the video is that the clerk could have seen the officer through the break in the fence.

[00:20:20] Speaker 03:
And at that point, you know, Holcomb had to make a decision.

[00:20:25] Speaker 03:
And why wouldn't that, why wouldn't, in the qualified immunity aspect, even, why would it not be, or let me flip it, is it clearly established that in that facts scenario, and we need a pretty close analog for you to prevail, why wouldn't that

[00:20:42] Speaker 03:
cut in favor of the officers under the Larson's factor.

[00:20:45] Speaker 03:
There's a threat, serious crime, split-second decision, and the other facts that I mentioned.

[00:20:54] Speaker 02:
And one of the first factor in Larson is whether there was a command for the suspect to drop the weapon.

[00:21:03] Speaker 02:
Right, and he shot it.

[00:21:05] Speaker 03:
And I'll spot you that.

[00:21:07] Speaker 03:
Drop the gun.

[00:21:08] Speaker 02:
Right, drop the gun and whether the suspect... But that's always going to be contextual.

[00:21:13] Speaker 02:
Complied, right.

[00:21:14] Speaker 02:
And in this instance, he was given... Well, for one thing, our position is it's a dispute of fact.

[00:21:20] Speaker 02:
He couldn't comply because he wasn't holding anything to drop.

[00:21:24] Speaker 02:
But more importantly than that, he wasn't given time to comply.

[00:21:29] Speaker 02:
And one of the other factors in Larson, again, is whether there was any hostile motion made.

[00:21:37] Speaker 02:
There's no evidence of any hostile motion made.

[00:21:39] Speaker 02:
He didn't have time to make a hostile motion.

[00:21:42] Speaker 02:
It was less than one second after the commands made, drop it.

[00:21:48] Speaker 02:
And actually, Sergeant Holcomb admits that he began shooting before he even finished the command.

[00:21:54] Speaker 02:
So this is just... It's a split second decision.

[00:21:58] Speaker 02:
It's a split second decision, and it was unreasonable.

[00:22:02] Speaker 03:
In 2020 hindsight, it was unreasonable.

[00:22:05] Speaker 03:
I'm sorry?

[00:22:05] Speaker 03:
In 2020 hindsight?

[00:22:07] Speaker 02:
No.

[00:22:09] Speaker 02:
Again, in viewing the totality of the circumstances, including the video evidence, I think most importantly.

[00:22:16] Speaker 02:
And my client, from the beginning,

[00:22:22] Speaker 02:
maintained that he was never holding a gun, and there's no evidence that blatantly contradicts that.

[00:22:29] Speaker 02:
There's really no evidence that supports that he was.

[00:22:32] Speaker 02:
But he said he left the gun in the kitchen, but no gun was found in the kitchen.

[00:22:36] Speaker 02:
Right.

[00:22:36] Speaker 02:
And that could have been one of the other kids picked it up and put it somewhere else, or

[00:22:42] Speaker 02:
I don't know, but they didn't find the Glock replica that he had anywhere near where he was when he was shot.

[00:22:52] Speaker 02:
And I don't think he would have had the presence of mind after being shot twice to pick it up and take it somewhere else and drop it.

[00:23:01] Speaker 02:
And there's no evidence anything like that happened.

[00:23:04] Speaker 02:
So again, yes, it's a split-second decision.

[00:23:11] Speaker 02:
with no evidence, again, reading the facts in the light most favorable to the plaintiff as the court must.

[00:23:20] Speaker 02:
There's no evidence he was holding a weapon.

[00:23:23] Speaker 02:
There's no evidence he pointed a weapon.

[00:23:26] Speaker 02:
And without that evidence, it was correct for the court to rule that it was not a reasonable mistake.

[00:23:37] Speaker 02:
And it's clearly established.

[00:23:39] Speaker 02:
that when you don't have probable cause to believe that the suspect is posing a threat of serious physical harm, that you can't use deadly force.

[00:23:52] Speaker 02:
And that's what we have here.

[00:23:54] Speaker 02:
And really, it's a case where there's not an immediate jurisdiction.

[00:24:01] Speaker 02:
It should go back.

[00:24:03] Speaker 02:
And that's our position.

[00:24:06] Speaker 02:
If you have any other questions, I know I've got five minutes left.

[00:24:10] Speaker 03:
Thank you, counsel.

[00:24:11] Speaker 03:
You can cede your time.

[00:24:12] Speaker 03:
Thank you.

[00:24:14] Speaker 03:
And Ms.

[00:24:15] Speaker 03:
Felker, you had some rebuttal time?

[00:24:25] Speaker 01:
Yes.

[00:24:25] Speaker 01:
With respect to the jurisdictional issue, this court said in Flores, we always have jurisdiction to review questions of law.

[00:24:32] Speaker 01:
And this is after it, considered

[00:24:35] Speaker 01:
It found a blatant contradiction.

[00:24:36] Speaker 01:
But apart from that, we always have jurisdiction review questions of law, whether we accept the district court's factual findings or not.

[00:24:44] Speaker 01:
And both with respect to whether a reasonable jury could find the facts, show a legal violation, and also whether the law was clearly established as to those facts.

[00:24:54] Speaker 01:
And in my opinion, the law is not clearly established in this case.

[00:25:00] Speaker 01:
They're relying on Finch, which was decided two years after this case.

[00:25:05] Speaker 01:
Yes, they look at the cases that come before Finch, but you've got one that's nail clippers that they think might be a knife.

[00:25:12] Speaker 01:
You've got one that is a van coming at someone, which if you go any less specific than you have to believe your life is in danger, doesn't provide much guidance.

[00:25:23] Speaker 01:
And you have a walker, a gun case where everybody at the scene is saying there's no gun, despite the fact that the officer sees one.

[00:25:32] Speaker 01:
So in my opinion, if there was clearly established law over the past 30 years, then there would be a case more closely on point.

[00:25:40] Speaker 01:
This court has decided a lot of deadly force cases.

[00:25:44] Speaker 03:
Thank you.

[00:25:45] Speaker 03:
Thank you, counsel.

[00:25:46] Speaker 03:
We appreciate the argument.

[00:25:46] Speaker 03:
Your excuse and the case is submitted.

[00:25:49] Speaker 03:
The court will be in recess until 9 o'clock tomorrow morning, I believe.