[00:00:00] Speaker 03:
We'll turn now to 23-1316, 1360, excuse me, estate of Jason Waterhouse versus De Reza.

[00:00:42] Speaker 03:
Mr. Mueller.

[00:00:48] Speaker 04:
Good morning and may it please the court.

[00:00:50] Speaker 04:
My name is Norman Mueller.

[00:00:52] Speaker 04:
I represent the estate of Jason Waterhouse through his personal representative and his daughter Amber, who is in the courtroom this morning.

[00:01:03] Speaker 04:
At council table is trial counsel and co-counsel, Tim Galuzzi.

[00:01:10] Speaker 04:
The issue before the court today is whether the magistrate judge committed error in granting summary judgment on the issue of qualified immunity in this case.

[00:01:20] Speaker 04:
And there was error in this case because there are many disputed issues of material fact.

[00:01:27] Speaker 04:
First, as to whether the officer, the defendant officer, Officer Drezel, subjectively believed

[00:01:37] Speaker 04:
that Mr. Waterhouse had a stick in his hand when he came out of the bedroom and headed toward the stairs.

[00:01:48] Speaker 04:
And secondly, if he did have that subjective belief, whether that was objectively reasonable.

[00:01:57] Speaker 04:
And there are disputed issues on both of those issues, disputed issues of fact.

[00:02:06] Speaker 04:
The trial court also concluded that the, also granted summary judgment because the law was not clearly established in this area.

[00:02:19] Speaker 04:
We think that was there, it's addressed in the briefs.

[00:02:22] Speaker 04:
I want to focus on the first issue for, due to my time limits in this case.

[00:02:31] Speaker 04:
The Officer Drezel said that he believed

[00:02:36] Speaker 04:
and he saw a stick in Mr. Waterhouse's hands.

[00:02:44] Speaker 04:
It is undisputed for purposes of the summary judgment motion that he was not, that Mr. Waterhouse was not armed, that he did not in fact have a stick.

[00:02:55] Speaker 04:
So the question is, the first question is whether the officer actually subjectively believed that and whether he was being truthful and there's

[00:03:06] Speaker 04:
a lot of reasons that a jury could find, in fact, that the officer was not being truthful.

[00:03:15] Speaker 03:
This is a very unusual situation.

[00:03:19] Speaker 03:
Why is the weapon so important?

[00:03:22] Speaker 03:
This was when the place was on fire, the other officers were fleeing, having breathing problems.

[00:03:30] Speaker 03:
If Mr. Waterhouse,

[00:03:35] Speaker 03:
just had a wrestling match with an officer.

[00:03:39] Speaker 03:
That could be fatal in that circumstance.

[00:03:43] Speaker 03:
If it was reasonable, and maybe you think it would not be, but if it was reasonable to believe that this fellow was charging at the officers, that was a lethal threat, whether he had an officer or whether he had a weapon or not.

[00:04:01] Speaker 03:
And wouldn't it be reasonable to address that with lethal force?

[00:04:06] Speaker 04:
not with lethal force under the facts of this case.

[00:04:09] Speaker 03:
What if he charged them and threw them to the ground and they could overcome him?

[00:04:15] Speaker 03:
The guy had been violent just a couple minutes before when he rammed a stick into the wall, maybe something more substantial than a stick.

[00:04:30] Speaker 03:
And they have to protect themselves.

[00:04:36] Speaker 03:
They're going to die if they get in a wrestling match in this situation.

[00:04:41] Speaker 03:
Why was that not a reasonable relief, regardless of whether Mr. Waterhouse had any weapon?

[00:04:47] Speaker 04:
Well, first of all, he didn't get close enough to engage in a wrestling match.

[00:04:53] Speaker 04:
And secondly, Officer Dressel... How far was he from them?

[00:04:58] Speaker 03:
Four, five, six feet?

[00:04:59] Speaker 04:
It was... The actual distance at the time is

[00:05:05] Speaker 04:
undetermined.

[00:05:06] Speaker 04:
It was confined.

[00:05:08] Speaker 04:
Best estimates, I think, from various witnesses was six to eight feet.

[00:05:14] Speaker 04:
But what is crucial, Judge Hartz, is that Officer Dressel admitted that if he had known that there was, let me step, one step back, the officer said, I shot because I thought he had a weapon.

[00:05:33] Speaker 04:
That is the reason I used lethal force.

[00:05:37] Speaker 03:
Is the test subjective, or is it what a reasonable officer would do?

[00:05:41] Speaker 03:
If it was reasonable for, if a reasonable officer would have shot in that circumstance, does it matter what that particular officer was thinking?

[00:05:50] Speaker 03:
I thought these are, maybe I'm wrong, I thought these were objective tests.

[00:05:54] Speaker 04:
Well, it is objective reasonableness at the end of the day, but in this case, when you have

[00:06:01] Speaker 04:
the officer saying, I would not have shot Mr. Waterhouse in the back.

[00:06:09] Speaker 04:
Number one, if I'd have known that he was not armed.

[00:06:13] Speaker 04:
And number two, if I'd have known Officer Williams was right beside me.

[00:06:18] Speaker 04:
Officer Williams was right beside him.

[00:06:23] Speaker 03:
Well, those are subjective matters.

[00:06:28] Speaker 03:
Well, they are objective facts of this case.

[00:06:31] Speaker 03:
Well, what's in his mind?

[00:06:35] Speaker 03:
Am I wrong that it's irrelevant what's in his mind?

[00:06:38] Speaker 03:
It's what a reasonable officer would do in the circumstances?

[00:06:41] Speaker 03:
Well, it is not irrelevant.

[00:06:44] Speaker 03:
Am I wrong?

[00:06:45] Speaker 03:
No.

[00:06:46] Speaker 03:
Objective.

[00:06:47] Speaker 03:
It's what a reasonable officer would do in the circumstance.

[00:06:51] Speaker 03:
It's what a reasonable officer could do in the circumstances.

[00:06:55] Speaker 03:
And the state of mind of the officer

[00:06:59] Speaker 03:
is not an element in this claim.

[00:07:04] Speaker 03:
Am I wrong about that?

[00:07:06] Speaker 03:
Correct me if I'm wrong, but that's what I thought.

[00:07:08] Speaker 03:
The Fourth Amendment issues, we don't care what the officer was thinking.

[00:07:12] Speaker 03:
He may have the wrong reason for arresting somebody, but if there was probable cause to arrest on another ground, then it's a valid arrest.

[00:07:21] Speaker 03:
Even if the officer thought something wrong, you know, was incorrect in deciding what there was probable cause for.

[00:07:29] Speaker 03:
That's what I thought.

[00:07:31] Speaker 04:
Objective reasonableness is the excessive force standard, but the magistrate judge ruled that and found based on disputed issues of material fact that the officer in this case subjectively believed, and that's part of her ruling.

[00:07:51] Speaker 04:
She spends a lot of time.

[00:07:52] Speaker 03:
This is to no vote.

[00:07:53] Speaker 03:
We really don't care what happened in district court when we were doing the summary judgment, do we?

[00:07:59] Speaker 04:
Well, I guess you do care, but the review is de novo.

[00:08:04] Speaker 03:
Yes, yes.

[00:08:04] Speaker 03:
We have respect for the lower court decision.

[00:08:07] Speaker 03:
That's true.

[00:08:08] Speaker 03:
But our review is de novo.

[00:08:11] Speaker 03:
So the district court could have totally wrong reasons for granting summary judgment.

[00:08:17] Speaker 03:
But our review is de novo.

[00:08:21] Speaker 03:
Again, it's the result of, well, it's similar.

[00:08:26] Speaker 03:
It is.

[00:08:27] Speaker 03:
OK.

[00:08:28] Speaker 03:
So I don't think we should, we're bound by any findings by the district court that we think are irrelevant, are we?

[00:08:39] Speaker 03:
No, this court's review is de novo.

[00:08:44] Speaker 03:
So address my first question, because this is what's so different to me, at least in this case, and maybe I'm missing something.

[00:08:51] Speaker 03:
Normally when you shoot somebody, they've got a deadly weapon they're going to

[00:08:55] Speaker 03:
kill you with or seriously harm you with.

[00:08:58] Speaker 03:
Here, you didn't need a deadly weapon to endanger, gravely endanger the lives of the officers because of where they were.

[00:09:07] Speaker 03:
They're in a confined space that's on fire.

[00:09:10] Speaker 03:
And the other officers, there were six officers there, as I recall.

[00:09:13] Speaker 03:
Four were running up the steps at the time.

[00:09:18] Speaker 03:
They're not going to help them.

[00:09:19] Speaker 03:
If this guy who's been enraged and acting crazy for quite some time, they've been negotiating with him for over an hour, just a few minutes before he slams something through the wall and he's coming toward them and if he's eight feet away, that's still pretty close.

[00:09:39] Speaker 03:
It doesn't take very long to cover eight feet.

[00:09:43] Speaker 03:
And if he knocks down an officer, that officer's life is in danger.

[00:09:48] Speaker 03:
Am I missing something?

[00:09:50] Speaker 04:
Well, I believe this under the total totality of the facts in this case, it was not objectively reasonable to use lethal force on Mr. Waterhouse who, number one, was unarmed, and number two, another officer who had a complete view of the situation said was heading

[00:10:15] Speaker 04:
towards the stairs.

[00:10:16] Speaker 02:
You're talking about the officer looking through the window.

[00:10:19] Speaker 02:
Yes.

[00:10:20] Speaker 02:
And aren't we supposed to evaluate these from the officer in question's perspective?

[00:10:27] Speaker 02:
He's in the smoke-filled room.

[00:10:29] Speaker 02:
He's down there with the fellow who's acting crazy, not safely outside the window.

[00:10:35] Speaker 02:
Well, that's true.

[00:10:38] Speaker 02:
Okay.

[00:10:39] Speaker 02:
Let me ask it this way.

[00:10:41] Speaker 02:
What do you think the officer could do

[00:10:44] Speaker 02:
what conduct would have been objectively reasonable?

[00:10:47] Speaker 02:
Do you think he had to wait until such time as he saw if this person ran up the stairs or instead took two more lunges and strangled him?

[00:10:58] Speaker 04:
What I think he should have been done is what he admitted he would have done, which is, and I believe that is what is objectively reasonable.

[00:11:08] Speaker 02:
You're back to subjective.

[00:11:09] Speaker 02:
You're talking about what he thinks should have been done.

[00:11:12] Speaker 02:
But Judge Hartz and what I'm talking about is reasonably objective conduct, which is, does he have to wait?

[00:11:20] Speaker 02:
Does he have to wait one more step?

[00:11:22] Speaker 02:
Does he have to wait two more steps?

[00:11:24] Speaker 02:
Does he have to wait to make sure that the person has this rod that he's been jamming through the wall, that he doesn't have a broken piece that he's gonna break his skull with?

[00:11:33] Speaker 02:
At what point can he do something other than cower?

[00:11:37] Speaker 00:
Other than cower?

[00:11:39] Speaker 02:
Well, of course, the shooting in the back

[00:11:41] Speaker 02:
That's a little bit misleading as far as the man had run from the room directly toward them with his front and then been struck by a bean bag.

[00:11:52] Speaker 02:
And so his body turned, right?

[00:11:54] Speaker 02:
And there was firing of the weapon as well as the bean bag at the same time.

[00:12:00] Speaker 02:
You're suggesting he was running up the stairs and got shot in the back.

[00:12:04] Speaker 02:
That's not the facts.

[00:12:06] Speaker 04:
I think a jury could conclude that from the facts of this case.

[00:12:10] Speaker 02:
Why would he be shot in the back?

[00:12:12] Speaker 02:
Would he be running back into the room?

[00:12:14] Speaker 04:
No, because he had turned going up the stairs and where the officer was located was to the side.

[00:12:22] Speaker 04:
It was necessary for Mr. Waterhouse, who a jury could find, thought number one, the officers were out because the officers came down

[00:12:34] Speaker 04:
And within a minute, there were verbal orders.

[00:12:37] Speaker 04:
Let's leave.

[00:12:37] Speaker 04:
Let's get upstairs.

[00:12:39] Speaker 04:
They could still see, but they were bothered by the smoke, and they were also bothered by the pepper balls that had been sprayed there earlier.

[00:12:47] Speaker 04:
So a jury could quickly find, clearly find, that Mr. Waterhouse, himself overcome by smoke and pepper balls, was headed outside, did not know, headed up the stairs, did not even know that the officers were still

[00:13:04] Speaker 04:
in the room.

[00:13:04] Speaker 02:
I don't know that you've answered the question, which is, what would a reasonable officer, what conduct would be reasonably objective?

[00:13:15] Speaker 02:
Did he have to wait?

[00:13:16] Speaker 02:
You're saying he couldn't fire then.

[00:13:19] Speaker 02:
Could he have ever fired?

[00:13:22] Speaker 04:
He could not have fired when he had right beside him another officer with non-lethal force and with a

[00:13:33] Speaker 04:
an unarmed victim, in this case, trying to get out of the smoke-filled room.

[00:13:39] Speaker 04:
Yes, he could not employ lethal force when he himself said, I wouldn't have had to if I'd have known he was unarmed and if I'd have remembered if I realized that Officer Williams with his beanbag shotgun was sitting, standing right beside me.

[00:14:00] Speaker 03:
How many shots did he fire from the bean bag shotgun before the lethal shot?

[00:14:05] Speaker 04:
It is probably two.

[00:14:07] Speaker 04:
I think there's evidence that there were two bean bags.

[00:14:13] Speaker 04:
He may have fired three, but I think the evidence shows that there were bean bags, two of them, and it looks like

[00:14:24] Speaker 04:
Mr. Waterhouse was hit by one by a bruise from the autopsy photos.

[00:14:29] Speaker 03:
And where did the bullets end up?

[00:14:32] Speaker 03:
Weren't they embedded in the doorway to the other room or in that other room?

[00:14:39] Speaker 03:
Is that the only evidence of where the bullets that were fired by the officer went?

[00:14:47] Speaker 04:
There are casings behind him.

[00:14:48] Speaker 04:
There is a bullet fragment in the bedroom.

[00:14:51] Speaker 04:
That's correct.

[00:14:53] Speaker 04:
That's correct.

[00:14:54] Speaker 04:
There's no ballistic evidence or no expert testimony about how the bullets could have traveled, where the shots could have been fired.

[00:15:06] Speaker 04:
So I see that I'm down to 35 seconds, so I reserve my 35 seconds for rebuttal.

[00:15:13] Speaker 04:
Thank you.

[00:15:19] Speaker 03:
Mr. Freeman.

[00:15:34] Speaker 01:
Good morning, Your Honors.

[00:15:35] Speaker 01:
Patrick Freeman on behalf of Sergeant De Reza.

[00:15:39] Speaker 01:
And I think the court has kind of hit the nail on the head with the analysis here.

[00:15:44] Speaker 01:
The objectively reasonable standard that Sergeant De Reza is subject to in terms of his actions is based upon the undisputed facts and the facts that as the court has basically laid out in the questions to

[00:16:00] Speaker 01:
appellant counsel.

[00:16:01] Speaker 01:
And if we look to that objectively reasonable standard, it's incredibly important that we first look to qualified immunity and the principle of qualified immunity and why it's important here.

[00:16:13] Speaker 01:
And the reason that the importance of qualified immunity is because it is a principle that is dictated for just this circumstance where you have officers in an inherently dangerous, chaotic, incredibly, you know,

[00:16:28] Speaker 01:
quickly developing situation in the basement of a home that has been lit on fire, where it is undisputed that when they went down in an effort to locate the fire, try to put out the fire, and try to continue to negotiate with Mr. Waterhouse, they quickly learned that this fire is beyond their capabilities and beyond their ability to control it.

[00:16:54] Speaker 01:
And so then they are placed in this situation where

[00:16:57] Speaker 01:
all of the officers are trying to get out, and then you have Sergeant Areza, who was assigned as the lethal cover, and he's the last person who's in the basement, making sure that this person who's been acting erratically, who's been using provocative, threatening language during the course of all of this, is not going to attack any of the people who are still in the basement or trying to exit the basement.

[00:17:20] Speaker 00:
Can I just tell you just a moment ago, we talked about this chaotic scene and how it was quickly developing in,

[00:17:26] Speaker 00:
and you know and you cite in your brief, the excessive force case law often talks about officers having to make split-second decisions.

[00:17:35] Speaker 00:
So time is an important factor as we look at what a reasonable officer would do.

[00:17:40] Speaker 00:
The estate argued that Sergeant De Reza had ample time.

[00:17:43] Speaker 00:
The district court found that to be invalid logic.

[00:17:48] Speaker 00:
You argued in your brief that there was, quote, so little time for Sergeant DeZilla to evaluate the threat that Waterhouse posed.

[00:17:55] Speaker 00:
Here's my sticking point.

[00:17:56] Speaker 00:
Sergeant De Reza himself says otherwise.

[00:17:58] Speaker 00:
On the joint appendix at page 773, he was asked about his ability to determine whether or not Mr. Waterhouse was armed, and he was asked specifically.

[00:18:08] Speaker 00:
So that means you had enough time to conclusively determine he was armed, and he says yes.

[00:18:14] Speaker 00:
So even though we may not look subjectively what he believed, but objectively, if one piece of the evidence is from the shooter himself is saying, I had plenty of time.

[00:18:23] Speaker 00:
to evaluate his threat, whether he was armed.

[00:18:26] Speaker 00:
How do we resolve that conflict?

[00:18:28] Speaker 01:
Because Sergeant DeResa is answering that question in context, which is I had enough time to evaluate whether or not he was armed, because I looked in his hands and I saw that he was armed.

[00:18:39] Speaker 01:
And that's an objectively reasonable belief for an officer in Sergeant DeResa's situation, because less than a minute before Sergeant DeResa is charged by Jason Waterhouse,

[00:18:50] Speaker 01:
officers are saying they see Jason Waterhouse taking that stick, putting it through the wall.

[00:18:56] Speaker 01:
In fact, Agent Williams, who's standing right next to Sergeant De Reza, says even though he didn't see anything in his left hand, he believed the entire time that Jason Waterhouse still had this rod cylindrical object in his hands despite the fact that he didn't see it in his left hand.

[00:19:15] Speaker 01:
When Sergeant De Reza's answering that question, did you have enough time to consider whether or not he was armed, the answer was, yeah, because I looked in his hands and I saw that he was armed.

[00:19:24] Speaker 01:
And so the question, if asked in the alternative, if you didn't see anything in his hands, did you have enough time to accurately assess whether or not he was armed, whether or not he had something behind his back, whether or not he had something in his pockets, whether or not he said something holstered into his pants,

[00:19:44] Speaker 01:
The answer to that is objectively no.

[00:19:46] Speaker 01:
And Sergeant De Reza actually answers that question in the affirmative if he didn't believe, if he wasn't under the impression that he had the stick in his hands when he came at Sergeant De Reza, he said that he did not have enough time to affirmatively evaluate whether or not Jason Waterhouse was armed in this situation.

[00:20:07] Speaker 01:
And I think that that's most important when we look at this objectively reasonable standard, but I think it's also important

[00:20:14] Speaker 01:
when we're looking at the question of clearly established.

[00:20:17] Speaker 01:
And when we're talking about clearly established, the district court found that there is no case law on point that would put Sergeant De Reza or an officer, any officer in Sergeant De Reza's position, that they would put them on notice that the actions of Jason Waterhouse did not warrant lethal force in this situation.

[00:20:37] Speaker 01:
And I think that that's important to note because if we look at the case law in this area, we have

[00:20:43] Speaker 01:
the three areas of the case law that we need to evaluate whether or not put him on clearly established notice, which is 10 circuit cases.

[00:20:53] Speaker 01:
There are no 10 circuit cases that are directly on point for this analogous of a situation.

[00:20:57] Speaker 00:
But why isn't our precedent that says an officer may not use excessive force unless they reasonably believe that the person poses a serious threat to the officer or to other persons?

[00:21:09] Speaker 00:
I mean, that's a clearly established standard, right?

[00:21:11] Speaker 00:
It is.

[00:21:12] Speaker 00:
So why can't that meet the second prong of qualified immunity here?

[00:21:16] Speaker 01:
Because in this circumstance, Mr. Waterhouse very objectively and undisputedly posed a threat.

[00:21:24] Speaker 00:
Yeah, but that goes to the first prong, qualified immunity.

[00:21:27] Speaker 00:
So if we agree that the law is clearly established and that's the standard that officers know, then we look to see, well, did they violate the standard?

[00:21:34] Speaker 00:
That becomes a more case-specific inquiry, right?

[00:21:37] Speaker 00:
It does.

[00:21:38] Speaker 01:
But the question on the clearly established prong is,

[00:21:41] Speaker 01:
whether or not any reasonable officer in Sergeant DeRosa's position is on notice that he would not be allowed to use lethal force in this situation and that that would be a violation of the law.

[00:21:52] Speaker 01:
And there is no clearly established law that says when you're in a situation, you're in the chaotic burning building that ends up with

[00:22:01] Speaker 01:
Agent Williams having his hair singed by the heat of the basement.

[00:22:04] Speaker 00:
But all of our cases have such scenarios where officers are tasked with making difficult decisions in what could be described as a chaotic environment.

[00:22:13] Speaker 00:
I mean, all the times where guns are drawn, that description of the environment would apply.

[00:22:19] Speaker 00:
So I guess I'm struggling with the argument that you're making as I hear it to say, well, there's no clearly established law here, where I guess I was thinking that your argument was, well,

[00:22:29] Speaker 00:
even if we agree that this is the standard for an excessive force claim, that's clearly established both by Supreme Court and 10th Circuit precedent.

[00:22:36] Speaker 00:
Here, based upon the objective review, Sergeant De Reza didn't violate Mr. Waterhouse's rights because of all the reasons that you're otherwise discussing about the reasons why he made the decision he did.

[00:22:49] Speaker 01:
And I think that that is my argument.

[00:22:51] Speaker 01:
I'm arguing that both prongs of qualified immunity fail in this,

[00:22:59] Speaker 01:
that there is no evidence to support either prong of the qualified immunity example, either clearly established or objectively reasonable.

[00:23:10] Speaker 01:
And I think when we look at objectively reasonable, I think it's important because if we're looking at objectively reasonable, I think Judge Hartz and Judge Phillips, you both discussed the factual scenario and

[00:23:22] Speaker 01:
whether or not the objectively reasonable belief of an officer in Sergeant De Reza's situation, whether that lines up with the facts.

[00:23:31] Speaker 01:
And I think one of the most important facts is there's this continuance by the appellant and by the plaintiff to argue that the act of being shot in the back somehow proves that he was running away from the agents.

[00:23:49] Speaker 01:
There is no facts within this

[00:23:52] Speaker 01:
within this scenario, there's no factual evidence that's ever reported that says that he is running away from Sergeant De Reza at the time that he is fired upon by Sergeant De Reza, while simultaneously being fired upon by Agent Williams.

[00:24:07] Speaker 01:
And so if we look to the objectively reasonable standard, obviously we go through the Granby-Conner factors, and we know that the Granby-Conner factor, the severity of the crime, that weighs in favor of

[00:24:19] Speaker 01:
the defendant in this case.

[00:24:21] Speaker 01:
And then the all-important second factor, we then look at the estate-view Larson factors.

[00:24:26] Speaker 01:
What crime are you talking about?

[00:24:27] Speaker 01:
Arson?

[00:24:28] Speaker 01:
Arson, yes.

[00:24:29] Speaker 01:
And the district court found that it would be objectively reasonable to believe that Mr. Waterhouse committed arson within this scenario.

[00:24:38] Speaker 01:
And then there is the case law that says that arson is a serious crime that warrants.

[00:24:43] Speaker 01:
But if we look to the estate-view Larson factors, I think the most important thing that we can describe is

[00:24:49] Speaker 01:
All of the evidence indicates that when Sergeant Areza is firing upon Jason Waterhouse, he is charging at him.

[00:24:59] Speaker 01:
And even Agent Cook, who's outside the window, who's got the most sanitized view of everything that's going on, and whom appellant relies on heavily for the factual dispute, his response is the door whips open,

[00:25:14] Speaker 01:
He does not, and Sergeant DeResa did not have enough time to make a determination because Jason Waterhouse is running at him quickly.

[00:25:22] Speaker 02:
And just pause there.

[00:25:24] Speaker 02:
When you say charging at or running at, I hear a connotation that it's purposeful, that he's trying to get him.

[00:25:30] Speaker 02:
But it doesn't have to be, does it?

[00:25:32] Speaker 02:
It's just a matter of direction.

[00:25:34] Speaker 01:
Right.

[00:25:34] Speaker 02:
Even if he didn't see the officer.

[00:25:37] Speaker 01:
Correct.

[00:25:38] Speaker 01:
And I think that I'm not arguing that his actions are purposeful.

[00:25:42] Speaker 02:
I'm arguing that... Well, I'm saying they don't have to be.

[00:25:46] Speaker 01:
And I agree with you.

[00:25:47] Speaker 01:
I really appreciate that point.

[00:25:51] Speaker 01:
Any reasonable officer in Sergeant De Reza's situation, seeing a person who is coming at them quickly, whether or not that person is intending to veer off the path at the last minute or go in some other direction,

[00:26:03] Speaker 01:
Sergeant De Reza has to take into account the fact that not only is this person who has made numerous threats, who has used incredibly provocative language towards agents during this more than hour long standoff, is charging at him after he has seen him less than a minute before putting a large weapon through a wall.

[00:26:26] Speaker 01:
And so the idea that it is objectively unreasonable for Sergeant De Reza or an officer in Sergeant De Reza's position to believe that Mr. Waterhouse was armed at the time that he charged towards officers, there's just no facts to support that.

[00:26:43] Speaker 01:
And I think the issue that you run into on the objectively reasonable standard is that in this split second decision that an officer in Sergeant De Reza's situation has to take into account

[00:26:56] Speaker 01:
all of the things, the totality of these circumstances, he has what has been described as less than two seconds to make a decision about what he thinks Jason Waterhouse is going to do as he's charging out of that back bedroom.

[00:27:14] Speaker 01:
And there's no evidence to suggest that Jason Waterhouse's intentions in these moments was to go up the stairs.

[00:27:24] Speaker 01:
And the district court correctly points out that when he comes out of that room, he does not make any sort of affirmative statement.

[00:27:32] Speaker 01:
He's not saying, I'm coming out of this room because it's too hot.

[00:27:35] Speaker 01:
I gotta go upstairs.

[00:27:37] Speaker 01:
Okay, I'm willing to comply.

[00:27:38] Speaker 01:
Can we get out of here?

[00:27:40] Speaker 01:
I'm coming out with my hands up.

[00:27:41] Speaker 01:
There's nothing affirmative on behalf of Jason Waterhouse to put off a reasonable officer in Sergeant De Reza's situation on notice that at that moment,

[00:27:53] Speaker 01:
the actions of Jason Waterhouse should be taken as any way but hostile.

[00:27:57] Speaker 01:
And it's undisputed within the factual record because if we look to Appellant's argument, their argument is basically, well, Agent Cook says it looked to me like he was gonna go up the stairs and peacefully kind of go that way.

[00:28:11] Speaker 01:
Which isn't actually what Agent Cook said.

[00:28:14] Speaker 01:
Agent Cook said when he whipped open the door and was running out very quickly,

[00:28:20] Speaker 01:
It looked to me like he was gonna button hook and go up the stairs.

[00:28:24] Speaker 02:
What does the record show as far as why DeZara and Williams were still in the basement and whether they intended to remain there?

[00:28:32] Speaker 01:
Okay.

[00:28:32] Speaker 01:
And the answer to that is that they were in what is called a police stack, essentially, and that DeResa was the final lethal cover sergeant who was down there and had been tasked with that

[00:28:44] Speaker 01:
the job, and so they were the two last cover officers who were covering for everybody as they got up the stairs.

[00:28:53] Speaker 01:
Agent Williams was the next to go.

[00:28:55] Speaker 01:
De Reza actually believed that Agent Williams wasn't present in the basement with him at the time that the shooting occurred, because he'd actually told Agent Williams that he would be the last person in the basement.

[00:29:05] Speaker 01:
So the intention was that everyone was getting out, but they were trying to get out as safely as they possibly could in what this court has identified as

[00:29:14] Speaker 01:
an incredibly dangerous, chaotic, terrible situation, that is exactly why qualified immunity exists.

[00:29:24] Speaker 01:
So in these circumstances, there is no question that both Sergeant De Reza's actions are objectively reasonable if we look at it from the standard of an officer who is in this chaotic, dangerous situation.

[00:29:40] Speaker 01:
I think Judge Hart's

[00:29:41] Speaker 01:
you know, kind of hit the nail on the head right at the beginning when he said any sort of wrestling match, a tackling situation, even if he doesn't have a weapon in his hands, and that's exactly why we stipulated that he was not armed at the time, because in this situation, it is objectively reasonable for Sergeant De Reza to believe that a wrestling match would have killed him.

[00:30:07] Speaker 02:
What if he would have sauntered out of the room rather than burst through the doorway?

[00:30:12] Speaker 01:
And I think that that's a completely different analysis.

[00:30:14] Speaker 02:
That's why I ask.

[00:30:17] Speaker 01:
And the question is, if he comes out slowly, that's the kind of analysis where we're talking about maybe an objectively unreasonable conduct.

[00:30:26] Speaker 01:
We ask the court to affirm.

[00:30:27] Speaker 01:
Thank you.

[00:30:28] Speaker 03:
Thank you.

[00:30:30] Speaker 03:
Do you have some time?

[00:30:33] Speaker 03:
Not a lot.

[00:30:34] Speaker 04:
32 seconds, Your Honor.

[00:30:38] Speaker 04:
Officer Drezel's own testimony establishes what was objective reasonable.

[00:30:44] Speaker 04:
If you have backup and the person is not armed, then what you do is you take him into custody.

[00:30:51] Speaker 04:
That's what Drezel said he would have done if he'd have had the facts right and he didn't.

[00:30:57] Speaker 04:
And that's why this is a jury question.

[00:31:16] Speaker 03:
Thank you, Council.

[00:31:17] Speaker 03:
Case is submitted.

[00:31:18] Speaker 03:
Council are excused.

[00:31:19] Speaker 03:
We're going to take a short break.