[00:00:00] Speaker 02:
All right, looks like everybody is ready.

[00:00:02] Speaker 02:
Let's call the next case, 23-1049, Flores versus Henderson.

[00:00:07] Speaker 02:
And Ms.

[00:00:08] Speaker 02:
Hugdall, you're to proceed.

[00:00:11] Speaker 04:
Good morning, Your Honors.

[00:00:30] Speaker 04:
My name is Heidi Hubdall.

[00:00:31] Speaker 04:
I'm here today on behalf of Appellants.

[00:00:34] Speaker 04:
This case is the one involving the 911 hostage call resulting in an officer-involved shooting.

[00:00:42] Speaker 04:
On March 4, 2019, following a 911 call where the caller reported that he had killed people and that he was holding hostages, who he suggested would be killed within 10 minutes, officers on scene got conflicting information.

[00:01:00] Speaker 04:
On the one hand, they were told that this call was an alert, toned call.

[00:01:06] Speaker 04:
It was the highest priority.

[00:01:08] Speaker 04:
It was a call suggesting that lives were in danger.

[00:01:11] Speaker 04:
It was a call that suggested that it was an in-progress call and that innocent lives were in the balance.

[00:01:19] Speaker 04:
And on the other hand, the officers were told by at least one witness on the scene

[00:01:25] Speaker 04:
that the suspect might have mental health issues, that he was unarmed, and that he was alone after having initially told officers that she didn't know if anyone else was inside or hurt.

[00:01:37] Speaker 04:
In the face of this emergency, after seeing a door ajar, after giving loud and clear commands, after announcing themselves as being police officers, after hearing a voice from inside telling the officers that they would have to come in and get him,

[00:01:55] Speaker 04:
Officers made a judgment call to go inside the apartment to protect innocent life.

[00:02:01] Speaker 04:
Officers could not and did not know that by going inside to sweep the apartment that they would have to use lethal force.

[00:02:09] Speaker 04:
Officers did not unconstitutionally escalate the situation because of their reckless or deliberate behavior.

[00:02:17] Speaker 04:
Officers have been called to investigate a homicide where they understood that additional lives were in imminent peril.

[00:02:24] Speaker 02:
If this were truly a hostage situation, did Aurora have any sort of, or is the record reflect any sort of policy or protocol for situations like this for responding officers?

[00:02:40] Speaker 02:
Your Honor, if it was purely a hostage situation... In other words, negotiate, retreat, set up a perimeter, you know, there's a variety of scenarios I can imagine.

[00:02:49] Speaker 02:
Does Aurora have a policy?

[00:02:51] Speaker 04:
Certainly, Your Honor, Aurora does have a hostage policy for purely hostage situations, but this one was one where individuals were indicated to have been killed, other individuals were indicated to be being held, and time was also critical.

[00:03:07] Speaker 02:
But what is the hostage policy?

[00:03:10] Speaker 04:
Generally, Your Honor, the hostage policy would be that you would call in other individuals to help assist if it was purely a hostage situation where lives weren't in imminent peril.

[00:03:20] Speaker 04:
Here, lives were in imminent peril, so the officers were going to go into the house.

[00:03:25] Speaker 04:
So if it was one where, hypothetically, somebody called and said, I'm holding somebody and you better get here, as opposed to I'm holding somebody and in 10 minutes I'm going to be killing these people,

[00:03:36] Speaker 04:
Those officers are trained to go in.

[00:03:38] Speaker 04:
They're trained to go into that type of situation immediately.

[00:03:42] Speaker 04:
As we've seen recently with the Uvalde shooting and other officer involved shootings where somebody's actively shooting an active scene, officers are trained to go in.

[00:03:53] Speaker 04:
So that's why they had four officers there, Your Honor.

[00:03:56] Speaker 04:
They established a plan where there was lethal force first, less lethal force second.

[00:04:01] Speaker 02:
Didn't they develop information during the sweep that might have

[00:04:06] Speaker 02:
reasonably suggested that there was not a hostage and that the suspect was in the bedroom by himself.

[00:04:20] Speaker 04:
Your Honor, first of all, there was information aired by one of the officers during the time of the sweep.

[00:04:29] Speaker 04:
It's not clear that any of the officers heard that information.

[00:04:32] Speaker 04:
It's not heard on their body-worn cameras.

[00:04:35] Speaker 04:
They don't acknowledge that information as they're going down the hall.

[00:04:38] Speaker 04:
One officer who was in a room by himself doing a sweep in the first room, you can hear it on his body-worn cameras.

[00:04:45] Speaker 04:
You can't hear it on the rest.

[00:04:47] Speaker 04:
But what is more... Why is that?

[00:04:49] Speaker 04:
We don't know, Your Honor.

[00:04:51] Speaker 04:
Maybe they had their radios turned down, they were going down the hallway.

[00:04:54] Speaker 04:
But in any event, Your Honor, they also had conflicting information.

[00:04:58] Speaker 04:
They had information from the same witness who said that she didn't know if anyone else was inside or hurt inside.

[00:05:05] Speaker 04:
That's what she originally said.

[00:05:07] Speaker 04:
The officers also had this press, Your Honor, of the worry that there were people in that room, whether it was one or multiple people, people who had been killed, people who may have been dying, people who might be killed.

[00:05:20] Speaker 04:
So the officers weighing those countervailing considerations were going to go through and make sure that nobody was in there, that nobody was... Now, there are a lot of pieces of conflicting evidence, but because this is on sober judgment,

[00:05:35] Speaker 03:
Don't we have to view the evidences in the light most favorable to the non-movement, to the plaintiff?

[00:05:41] Speaker 03:
And the video shows that there is not a peep when Officer Henderson and the two officers are lined up behind him in the corridor.

[00:05:51] Speaker 03:
The sister says that she doesn't know of anybody in the room with him.

[00:05:57] Speaker 03:
She doesn't know, she doesn't think that there is a weapon.

[00:06:01] Speaker 03:
And so when you view the evidence in the light most favorably to the plaintiff, what distinguishes this case from the state of Sevios, which interpreted Allen as early as 2013?

[00:06:15] Speaker 03:
Because it seems to me that the state of Sevios and Allen are almost identical in the fact that there is someone who could be dangerous, like the young man in the car in Allen.

[00:06:31] Speaker 03:
And Officer Henderson, rather than wait, rather than do anything, you can see him kick the door in.

[00:06:38] Speaker 03:
And so he says then the guy came out with the machete almost exactly like the young man points the gun at one of the officers in Allen.

[00:06:47] Speaker 03:
So how is this different than Allen with regard to Officer Henderson?

[00:06:52] Speaker 04:
Your Honor, these cases are different than Allen, specifically in Subbios, as you mentioned, because first of all, well first, Subbios was decided after this case.

[00:07:02] Speaker 03:
But it was interpreting Allen's as clearly established in 2013.

[00:07:07] Speaker 04:
Yes, Your Honor, it did.

[00:07:09] Speaker 04:
you know, rely on Alan, which we recognize is precedent for this circuit.

[00:07:14] Speaker 04:
We recognize also that other circuits, there's a split in circuits and that different circuits have gone different ways.

[00:07:20] Speaker 04:
But anyway, Your Honor, to get to your point, in Alan and in Ceballos, these were calls where individuals had indicated that they were threatening suicide.

[00:07:29] Speaker 04:
They were known to be armed.

[00:07:31] Speaker 04:
They were known to have nobody else at risk.

[00:07:34] Speaker 04:
There was no worry that there was anybody else within their perimeter or their ambit.

[00:07:39] Speaker 04:
Now, Ceballos, there is the argument that you raised, Your Honor, in your dissent that perhaps he was further away and he could have skirted out of view and that therefore you found that there wasn't clearly established law in that case relying on Allen.

[00:07:53] Speaker 04:
But in any event, in Allen and in Hastings and in Sevier, those cases are clearly demarcated from this case because the officers knew that the people were in crises.

[00:08:05] Speaker 04:
They pushed them, they provoked them, they incited them, they knew that they were armed.

[00:08:10] Speaker 04:
And Alan, they saw him holding a gun in his hand.

[00:08:13] Speaker 04:
And Hastings, they chased him through the house, pepper spraying him into a room, knowing nobody else was in the room.

[00:08:20] Speaker 04:
And Sevier, the father called to say his son was suicidal and they needed help.

[00:08:25] Speaker 04:
And when they went to the room, seeing he was alone in that room, the officers approached him,

[00:08:32] Speaker 04:
in rapid speed.

[00:08:33] Speaker 04:
So that is how this case filters out a little differently, actually significantly differently than Alan or Subias or Hastings or Sevier.

[00:08:42] Speaker 04:
The fact that these officers did not know what was in that room is a critical fact here.

[00:08:48] Speaker 04:
The fact that these officers did not know that he was armed is a critical fact here.

[00:08:53] Speaker 04:
The fact that the officers giving these countervailing issues

[00:08:56] Speaker 04:
were going to make sure that nobody was in there.

[00:08:59] Speaker 04:
They were going to err on the side to make sure nobody was in that room behind a closed door after giving repeated orders to come out, after even calling him by his name and asking him to come out, and after giving him time to come out of that room.

[00:09:15] Speaker 04:
So I think that's what distinguished these cases, Your Honor.

[00:09:20] Speaker 01:
Is there any dispute between the parties about the machete

[00:09:26] Speaker 01:
Evidence?

[00:09:27] Speaker 04:
No, Your Honor.

[00:09:28] Speaker 04:
In fact, the plaintiffs, as I understand their argument, don't dispute the entry into the house, into the apartment, excuse me, and they don't dispute the fact that when the force was used, it had to be used.

[00:09:40] Speaker 04:
He came out with a machete over his head.

[00:09:43] Speaker 04:
The machete is a machete.

[00:09:45] Speaker 04:
It's not a pocket knife.

[00:09:47] Speaker 04:
And additionally, he was charging at the officers who were attempting to retreat, who were attempting to give commands even as he was coming after them.

[00:09:55] Speaker 04:
He was literally on top of them.

[00:09:57] Speaker 04:
So I don't think that there's any issue at all as to the machete and the threat that it presented, the imminent threat to those officers at the time that they used the force that they used.

[00:10:09] Speaker 03:
But the district court didn't mention the machete.

[00:10:12] Speaker 04:
Yes, which is one of the problems, Your Honor.

[00:10:15] Speaker 03:
Well, that may be a problem, but for purposes of Lewis v. Tripp on interlocutory review of the denial of qualified immunity, aren't we bound, limited, by the facts that the district court found that a reasonable jury could find?

[00:10:31] Speaker 03:
So how can we consider the machete?

[00:10:35] Speaker 04:
You can consider, first of all, the district court relied, as your honors know, on the unverified complaint, the allegations in the complaint that did not bear out in the discovery of the case.

[00:10:47] Speaker 04:
The district court relied exclusively on the allegations in the complaint, which we would submit allows you to have a de novo review based on that fact alone.

[00:10:57] Speaker 04:
In addition,

[00:10:59] Speaker 04:
There is body-worn camera evidence.

[00:11:02] Speaker 04:
There's evidence from the 911 call.

[00:11:04] Speaker 04:
There's evidence from the CAD notes.

[00:11:06] Speaker 04:
There's also evidence from the radio traffic in the record before the court that shows that the district court's findings are blatantly contradicted by the record.

[00:11:14] Speaker 03:
When I watch the video, though, I don't see the machete.

[00:11:18] Speaker 04:
Your Honor, the machete is seen when Mr. Jackson is deceased and laying on the ground and unfortunately has passed or is being worked on or they're giving life supporting aid.

[00:11:30] Speaker 04:
That machete is seen on the ground there.

[00:11:32] Speaker 04:
I don't think there's any dispute that Mr. Jackson came out with a machete.

[00:11:35] Speaker 04:
All of the deposition testimony that's in the record before the court as well is uncontroverted that he came out with the machete overhead and that machete is seen

[00:11:45] Speaker 04:
on the floor next to him after the shooting occurs.

[00:11:49] Speaker 04:
So, sorry.

[00:11:51] Speaker 04:
So given those facts, Your Honors, we believe that this case is distinguishable from the clearly established the progeny of Allen and the holding in bond that specifically said that you can't define the law at such a high level of generality.

[00:12:09] Speaker 04:
And we're asking this court to reverse the district court given the record before the court.

[00:12:14] Speaker 04:
And even if this court were to consider the facts as found by the district court,

[00:12:18] Speaker 04:
We still believe that the information in the record is blatantly contradicted by the district court's findings as well.

[00:12:26] Speaker 04:
And I'd like to reserve the rest of my time for rebuttal.

[00:12:28] Speaker 01:
Thank you.

[00:12:29] Speaker 01:
I just ask you, you made reference to clearly established, are you relying on step two of qualified immunity analysis for your argument now?

[00:12:39] Speaker 04:
We're relying on both, Your Honor.

[00:12:41] Speaker 04:
We're saying that there wasn't a constitutional violation under Graham and Larson considering those factors.

[00:12:46] Speaker 04:
And in any event, the law wasn't clearly established given the facts of this case.

[00:12:52] Speaker 04:
So we're relying on both, Your Honor.

[00:12:55] Speaker 02:
Thank you.

[00:13:16] Speaker 00:
Good morning.

[00:13:17] Speaker 00:
May it please the court.

[00:13:18] Speaker 00:
My name is Kylie Schmidt.

[00:13:19] Speaker 00:
I'm here on behalf of Appalachia today.

[00:13:23] Speaker 00:
Plaintiffs below here have two requests.

[00:13:26] Speaker 00:
First, that this court dismiss this appeal for lack of subject matter jurisdiction.

[00:13:31] Speaker 00:
And second, in the alternative, that this court remand this case after affirming the summary judgment order below.

[00:13:41] Speaker 00:
Let's first talk about the lack of subject matter jurisdiction and the limited interlocutory appeal that this court has in reviewing these facts.

[00:13:51] Speaker 00:
This court can't second guess the facts.

[00:13:53] Speaker 00:
And as appellants identified, this case is replete with disputed facts left and right.

[00:14:01] Speaker 00:
We've seen disputed facts during this time frame from the call from dispatch.

[00:14:06] Speaker 00:
all the way to that use of force in the hallway of this man's apartment.

[00:14:11] Speaker 00:
And these disputed facts are the heart of this case and why it screams for a jury to hear this case rather than a court or a judge.

[00:14:21] Speaker 00:
And the court below appropriately addressed the standard in summary judgment, looking at the facts in the light most favorable to the plaintiff.

[00:14:32] Speaker 00:
And when looking at those facts in light most favorable to the plaintiff, here's how things went down.

[00:14:39] Speaker 00:
There was a call.

[00:14:40] Speaker 00:
Aurora police.

[00:14:41] Speaker 00:
Dispatch.

[00:14:42] Speaker 00:
Confusing, right?

[00:14:44] Speaker 00:
They're not sure what's going on here.

[00:14:48] Speaker 00:
They think it's a prank.

[00:14:50] Speaker 00:
There's evidence supporting that it's a prank or swatting, right?

[00:14:53] Speaker 00:
A call to elicit police report.

[00:14:57] Speaker 00:
A large police response.

[00:15:00] Speaker 00:
That information and those facts down below, demonstrating that this potentially was a prank, was determined by the court below.

[00:15:11] Speaker 01:
And the lens of- Well, the court didn't determine it was a prank.

[00:15:17] Speaker 00:
Correct.

[00:15:17] Speaker 00:
I'll give you that, Your Honor.

[00:15:21] Speaker 01:
Let me just ask you, in terms of your jurisdictional argument,

[00:15:27] Speaker 01:
What would you identify as the key facts that the appellants are contesting now on appeal?

[00:15:36] Speaker 01:
Sure.

[00:15:37] Speaker 01:
Are they really disputing anything that the district court found?

[00:15:42] Speaker 00:
They absolutely are.

[00:15:43] Speaker 01:
And what would those be?

[00:15:46] Speaker 00:
The fact that this call was urgent and high priority.

[00:15:51] Speaker 00:
We have disputed evidence demonstrating that it was a swatting call or a prank call.

[00:15:58] Speaker 01:
But you just said, though, that the court didn't conclude that it was a prank call.

[00:16:02] Speaker 01:
It was more a matter of it could have been, and there was confusion.

[00:16:06] Speaker 01:
Isn't that really the factual finding, is that there were conflicting messages provided to the responding officers?

[00:16:15] Speaker 00:
Conflicting messages, yes, but I submit that those conflicts of what information the police had in this period before the use of force was disputed facts.

[00:16:28] Speaker 00:
And in this period before the use of force, which this circuit must consider when addressing this time frame,

[00:16:36] Speaker 00:
those disputes leading up to it render this, or show that this court doesn't have subject matter's jurisdiction.

[00:16:46] Speaker 00:
And to go to some of the additional facts that are being, pardon me.

[00:16:54] Speaker 02:
Is there a fact dispute that the suspect came out of his bedroom with the machete raised?

[00:17:02] Speaker 02:
Is that undisputed?

[00:17:05] Speaker 00:
As Judge Bacarek said earlier, review of this body cam footage, it's hard to tell whether there was a machete in the man's arms.

[00:17:16] Speaker 00:
I think it's undisputed that there was a machete on the scene.

[00:17:20] Speaker 01:
How that was weird.

[00:17:21] Speaker 01:
On page six of your brief, in your listing of the facts, it says that 901, 15 seconds a.m., Mr. Jackson comes out of his bedroom holding a machete.

[00:17:35] Speaker 01:
Are you backing off from that now?

[00:17:39] Speaker 00:
Holding the machete, yes.

[00:17:40] Speaker 00:
How he wielded it, in which arm he had it, that's where the dispute lies.

[00:17:48] Speaker 00:
And to look at this to the concept of hindsight,

[00:17:55] Speaker 00:
It's this on-the-scene perspective.

[00:17:57] Speaker 00:
And the Supreme Court in Saussier has said that the use of this 2020 vision of hindsight is not permitted.

[00:18:04] Speaker 00:
And to get back to Judge Matheson, your question about which facts are disputed.

[00:18:11] Speaker 00:
We have a disputed fact about whether the suspect was armed or not in the room.

[00:18:17] Speaker 00:
And because we're required to look at that time frame before the use of force, it was disputed as to whether or not he was armed.

[00:18:26] Speaker 00:
We can't now, in hindsight, go back and say, well, we know now that he was armed because he came out holding a machete.

[00:18:33] Speaker 02:
Well, he told this back.

[00:18:35] Speaker 02:
He was armed in the 911 call, right?

[00:18:40] Speaker 00:
He did.

[00:18:42] Speaker 00:
It is in the record that he called dispatch and said that there was a machete.

[00:18:47] Speaker 03:
But- And that he killed two people.

[00:18:50] Speaker 00:
I don't believe that the record supports that he killed people, like appellant suggests.

[00:18:54] Speaker 00:
I instead think that the record supports that there was a report of people dead and people being held hostage, not that people were killed.

[00:19:03] Speaker 00:
Okay.

[00:19:03] Speaker 00:
And I believe that's supported in the transcript of this 911 call.

[00:19:07] Speaker 02:
And really the purpose of my question on, you know,

[00:19:11] Speaker 02:
time the shots were fired, that really is kind of a fog of war situation.

[00:19:18] Speaker 02:
It seems to me that the strength of your case is a fact dispute.

[00:19:23] Speaker 02:
It was whether the officers incited, you know, created the crisis for the use of force.

[00:19:31] Speaker 02:
You know, for me that's, you know, the facts in this case are, you know, could a reasonable jury find that they provoked

[00:19:40] Speaker 02:
the use of force here.

[00:19:42] Speaker 00:
Yes, certainly.

[00:19:43] Speaker 00:
And in looking at the pre-use of force timeframe, there's evidence to support that this man was unarmed, he was alone, he was alone in his own home, and there were suspected mental health issues.

[00:19:58] Speaker 00:
And to loop back to something that was said earlier, there was some discussion about the Aurora police's hostage policy, and that is in the record.

[00:20:08] Speaker 00:
It was exhibit 78-8, or docket number 78-8.

[00:20:14] Speaker 00:
And in that hostage policy, it talks about stalling, it talks about negotiation, and it talks about how good judgment demands a tactical plan rather than rushing a barricaded suspect.

[00:20:29] Speaker 00:
And these are the items that this jury would be able to hear.

[00:20:33] Speaker 00:
in determining whether or not that conduct that precipitated the use of force, whether there was deliberate conduct before that seizure that provoked the suspect's actions.

[00:20:47] Speaker 00:
And the court in Pauley adopted that.

[00:20:50] Speaker 00:
And as we discussed in the briefing,

[00:20:52] Speaker 00:
This court has reaffirmed that the pre-force circumstances are critical in assessing whether or not the force use in a circumstance was reasonable.

[00:21:05] Speaker 00:
And it not only depends on danger at that precise moment, but whether the police's own reckless conduct or deliberate conduct created that scenario.

[00:21:20] Speaker 00:
And we have that here.

[00:21:21] Speaker 02:
What would you, if you were describing to the jury, what was the recklessness of the officers on the scene?

[00:21:33] Speaker 02:
I guess in particular, Mr. Henderson, Officer Henderson.

[00:21:38] Speaker 00:
Sure.

[00:21:39] Speaker 00:
I think viewing it through this lens of this really, really short time frame is critical.

[00:21:45] Speaker 00:
They arrive on the scene and in about a two minute time frame from entering into this apartment, shots are fired that kill Mr. Shemicheal Jackson.

[00:21:57] Speaker 00:
And Henderson in particular is, based on the evidence,

[00:22:02] Speaker 00:
below, they walk in and they realize there's no dead bodies in this apartment.

[00:22:09] Speaker 00:
There's no one crying out for help.

[00:22:11] Speaker 00:
There's nothing strange about this situation that would support that it's a hostage situation.

[00:22:16] Speaker 00:
And you have four officers in this apartment, stacked three deep in a narrow hallway, one with gun drawn, one with tasers drawn,

[00:22:27] Speaker 03:
yelling at... I thought Orchard had stayed at the doorway with his sister.

[00:22:33] Speaker 03:
Am I wrong about that?

[00:22:34] Speaker 00:
No.

[00:22:35] Speaker 00:
Officer Johnson, who was the female police officer, took Miss Jackson, Mr. Jackson's sister, up a few stairs to a landing in the apartment where she was talking to her and obtaining information, simultaneous with these other officers entering and clearing the apartment and rushing this

[00:22:57] Speaker 00:
man into where he was barricaded in his bedroom.

[00:23:05] Speaker 00:
And de-escalation.

[00:23:10] Speaker 00:
Let's talk about that.

[00:23:15] Speaker 00:
Again, this hostage policy talks about these concepts of stalling and negotiation, how you may need to de-escalate the situation, and gathering information.

[00:23:27] Speaker 03:
That's what I wanted to ask you about.

[00:23:30] Speaker 03:
It's one thing against the city of Aurora with regard to Matthew's hand in an orchard who were lined up behind Henderson.

[00:23:38] Speaker 03:
Now you argued that they didn't de-escalate, they didn't defuse, but unlike the situation with Henderson, you haven't identified any precedent either from the 10th Circuit or the Supreme Court that says that there's a constitutional obligation

[00:23:56] Speaker 03:
for an officer who is in a position to intervene to contribute by defusing the situation or something like that.

[00:24:05] Speaker 03:
What precedent should we rely on for Matthew's hand in torture?

[00:24:11] Speaker 00:
Right.

[00:24:12] Speaker 00:
And the precedent for the officers that did not wield the weapon that resulted in the deadly shots, that's a failure to intervene theory.

[00:24:26] Speaker 03:
that duty to... Well, but they... I mean, you know this, but you look at the coroner, as you pointed out, they are two, three, and four behind Henderson.

[00:24:37] Speaker 03:
It's Henderson who kicks the door in, and that, you know, accelerates the confrontation.

[00:24:43] Speaker 03:
How can Matthews, Hannon, or Orchard, who are behind Henderson, how would they even know that he's going to kick the door in?

[00:24:51] Speaker 03:
That's the whole... I thought that's the

[00:24:54] Speaker 03:
The might of your argument to the jury is that Henderson precipitously created the danger by kicking the door in.

[00:25:03] Speaker 03:
But the only thing that they can see, the other three officers, is Henderson's back.

[00:25:10] Speaker 00:
Well, there is verbal discussion that happens during this in the hallway.

[00:25:16] Speaker 00:
And to set the scene, even shortly before this stack in the hallway, Officer Johnson, who's with Ms.

[00:25:24] Speaker 00:
Jackson, is reporting things over the radio.

[00:25:28] Speaker 00:
And it is a disputed fact whether or not the other officers heard, unlike the appellant's claim.

[00:25:33] Speaker 00:
So this information is being exchanged.

[00:25:36] Speaker 00:
They're stacked in the hallway, and there's this discussion that occurs, and it's, hey, the door's open.

[00:25:45] Speaker 00:
And then he kicks it, and then someone says, announce again.

[00:25:50] Speaker 00:
And so they are together discussing and deciding how to proceed towards the suspect based upon this communication.

[00:25:59] Speaker 00:
Yes.

[00:26:00] Speaker 03:
After he kicks the door in, you can see on the video, he immediately shoots.

[00:26:08] Speaker 00:
I'm talking about the first kick of the door.

[00:26:11] Speaker 00:
There's an initial kick of the door where it opens and closes quickly.

[00:26:17] Speaker 00:
And then there's the second kick of the door where the suspect comes out.

[00:26:21] Speaker 00:
So there is time built in in that time frame.

[00:26:25] Speaker 00:
where there's this discussion amongst everyone, and they're talking about what to do.

[00:26:32] Speaker 00:
And in the footage, you'd also see Officer Hannan squeeze the shoulder of Officer Henderson to tell him to, in effect, move forward.

[00:26:45] Speaker 00:
And the post-incident interviews talks about how that squeeze of the shoulder

[00:26:52] Speaker 00:
indicated to him that he should proceed and approach the suspect.

[00:26:56] Speaker 00:
So there is verbal and nonverbal communication amongst and between these officers that demonstrates that no, it wasn't Officer Henderson acting alone.

[00:27:07] Speaker 00:
It was him collectively with the other officers jointly approaching this barricaded person in his home.

[00:27:16] Speaker 00:
Thank you.

[00:27:19] Speaker 00:
I'd like to last address one other thing raised by the appellants, and that's the Larson factors.

[00:27:27] Speaker 00:
As this court's aware, the Larson factors were raised for the first time in the reply brief filed by the appellants.

[00:27:34] Speaker 00:
Down below, Larson was cited, but the factors within Larson were not delineated or argued or considered by the court.

[00:27:44] Speaker 00:
Larson's merely a tool, and

[00:27:47] Speaker 00:
I think the most critical piece here is that in Larson, there was not a claim that the officer's conduct caused the need for deadly force.

[00:27:57] Speaker 00:
And that's distinguishable.

[00:28:00] Speaker 00:
And again, appellees urged this court to either dismiss for lack of subject matter jurisdiction or affirm the order below.

[00:28:33] Speaker 04:
Just to elucidate a couple of points raised by Appellees.

[00:28:37] Speaker 04:
First, as to whether or not it was a prank call, it's clear from the cert interview that's in the record that Officer Orchard clearly says in his cert interview that at first he thought it was such a call.

[00:28:50] Speaker 04:
But when he got on scene, saw the door was ajar, heard somebody from inside say, you're going to have to come in and get me, his mind switched.

[00:28:59] Speaker 04:
And he said, this is real.

[00:29:00] Speaker 04:
This is happening now.

[00:29:02] Speaker 04:
and we're going in.

[00:29:03] Speaker 04:
That is what he said in the cert interview.

[00:29:06] Speaker 04:
So the fact that just the one portion of his statement was included in the cert interview shows the incompleted, the problem with the fact that they didn't include the entire portion of Officer Orchard's interview.

[00:29:23] Speaker 04:
Additionally, Your Honor,

[00:29:26] Speaker 04:
in Arnold versus Olathe.

[00:29:28] Speaker 04:
In that case, obviously, this court, Your Honor found, Chief Judge Chempkevich, that time is only one factor.

[00:29:37] Speaker 04:
And in those cases, in Allen and in Hastings and in Sevier, where there was a short, compressed time,

[00:29:44] Speaker 04:
They weren't dealing with somebody who they thought was going to kill other people.

[00:29:48] Speaker 04:
They weren't dealing with somebody who they believed was going to injure anybody else.

[00:29:54] Speaker 04:
It was clear that that person was alone, was threatening suicide, and was armed.

[00:29:59] Speaker 04:
And those are not the facts that we have here.

[00:30:02] Speaker 04:
And in order to establish, clearly establish law, it has to be that every reasonable officer would have understood that what he was doing violated existing precedent.

[00:30:13] Speaker 04:
It must have placed the constitutional debate, constitutional question beyond debate.

[00:30:18] Speaker 04:
We don't have that here with this case.

[00:30:20] Speaker 04:
In fact, these facts are very different than the facts that the district court relied on

[00:30:26] Speaker 04:
in terms of the volatile nature of the conduct, in terms of the fact that they were at an unfolding event on the scene that shouldn't be reviewed in 2020 hindsight.

[00:30:38] Speaker 04:
Additionally, clearly established, I'm sorry, additionally, conflicting facts in the record are not the same as legally disputed facts preventing summary judgment.

[00:30:50] Speaker 04:
So even if you were to take the facts as the court had them,

[00:30:53] Speaker 04:
Excuse me, I'm out of time.

[00:30:55] Speaker 04:
May I just finish your thought?

[00:30:57] Speaker 04:
Thank you, Your Honor.

[00:30:58] Speaker 04:
Even if you were to take the facts as the district court found them, there is not clearly established law in this circumstance and there was not a clearly, there was not a violation of constitutional law in terms of these officers recklessly, deliberately, intentionally provoking Mr. Jackson from coming out behind the closed door with the machete overhead.

[00:31:18] Speaker 04:
Thank you.

[00:31:19] Speaker 02:
Thank you, Counsel.

[00:31:20] Speaker 02:
Thank you, Counselor excused.

[00:31:21] Speaker 02:
Appreciate the arguments this morning and the case shall be submitted.