[00:00:00] Speaker 03:
We next will hear Hallam the sheriff of Delaware County number 245012.

[00:00:11] Speaker 01:
Counsel, you may proceed.

[00:00:14] Speaker 01:
Good morning.

[00:00:15] Speaker 01:
Bob Blakemore for the plaintiff.

[00:00:17] Speaker 01:
This is an excessive use of force case.

[00:00:22] Speaker 01:
that occurred beginning the relevant events began on March 29th, 2019 going into the early morning of March 30th.

[00:00:36] Speaker 01:
Mr. Hallam

[00:00:38] Speaker 01:
was a local business owner in Delaware County.

[00:00:44] Speaker 01:
That night he went to his place of business there, higher health, and he'd been distraught about some events earlier, personal events earlier that day, ended up setting off the burglary alarm.

[00:01:08] Speaker 01:
and then went out to his car in the parking lot of the business and fell asleep in the passenger side of the vehicle.

[00:01:19] Speaker 01:
So a little bit after midnight, two deputies

[00:01:28] Speaker 01:
from Delaware County.

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One is Deputy Williams.

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The other one, Deputy Beck.

[00:01:33] Speaker 01:
And then one police officer from Bernice Police Department, Officer Trout, arrive.

[00:01:41] Speaker 04:
They see... Council, can I stop you for a moment just right there?

[00:01:46] Speaker 04:
Sure.

[00:01:46] Speaker 04:
So for purposes of the first gram factor, we need to know what the crime at issue was.

[00:01:52] Speaker 04:
And it seems that you're contesting that there was no crime here at all.

[00:01:58] Speaker 04:
There was no reason to suspect Mr. Hallam of any crime.

[00:02:02] Speaker 04:
Weren't the officers responding to a commercial burglary call?

[00:02:06] Speaker 04:
And if so, if that's what the record shows, why wouldn't that satisfy the first gram factor in support of Deputy Williams?

[00:02:16] Speaker 01:
Well, if you look at, for instance, Priya versus Baca, whether the

[00:02:26] Speaker 01:
suspect or subject is suspected of committing a serious crime.

[00:02:34] Speaker 01:
They were investigating and they were called out because of the burglar alarm, but they had no reason to believe that Mr. Hallam committed any crime at the time of the use of force.

[00:02:47] Speaker 01:
And actually, if you look at Deputy Williams probable cause affidavit, and that's

[00:02:55] Speaker 01:
The pertinent pages you'll find at Appellant Appendix 289 and 290, he doesn't articulate any crime that he suspected Mr. Hallam of committing.

[00:03:10] Speaker 01:
And then Officer Trout admittedly, pretty early after seeing Mr. Hallam in the vehicle, identified him as the property owner.

[00:03:24] Speaker 04:
Did Deputy Williams also know the identity?

[00:03:29] Speaker 01:
He denies that he did.

[00:03:31] Speaker 04:
There's some... Did you contest that in the district court?

[00:03:34] Speaker 01:
We did.

[00:03:35] Speaker 01:
Just so circumstantially, when they arrive, there's like 30 seconds after Trout, they'd seen him in the car, there's 37 second conversation that we can't hear.

[00:03:53] Speaker 01:
And our argument is that it would be reasonable to infer that Trout would have told Deputy Williams prior to him going into the building that this is the, I know this guy, this is the property owner.

[00:04:10] Speaker 05:
Officer Trout says he did in his affidavit, right?

[00:04:13] Speaker 01:
He does.

[00:04:16] Speaker 05:
And Officer Williams says he didn't also?

[00:04:18] Speaker 01:
Correct.

[00:04:19] Speaker 03:
Does the video shed any light on that?

[00:04:22] Speaker 01:
Only the only the fact that again, there was this after they'd arrived there and after I think that trout would Concede that he identified Mr. Hallam as the as the property owner and the business owner that they had this conversation for around 37 seconds and Again, the argument is it would be reasonable to infer that that he told him but I don't think it

[00:04:51] Speaker 01:
I think under the facts, whether Williams knew that or not is not dispositive.

[00:05:03] Speaker 01:
Because again, when you look at his probable cause affidavit, he doesn't articulate any crime that he suspected Mr. Hallam of committing at the time that he took him to the ground.

[00:05:15] Speaker 05:
Well, he does say that he thought

[00:05:19] Speaker 05:
that the other officer was in danger.

[00:05:23] Speaker 05:
So another crime that he could have thought was occurring was assault on a police officer.

[00:05:29] Speaker 01:
He doesn't identify that as a crime.

[00:05:32] Speaker 01:
He does say that in the probable cause affidavit that he wanted to get control over the situation.

[00:05:39] Speaker 01:
The question is whether... Does he need to articulate that?

[00:05:45] Speaker 03:
Wouldn't we evaluate that under what

[00:05:49] Speaker 03:
A reasonable officer would think what's going on there between Officer Trout and Mr. Hallam.

[00:05:56] Speaker 01:
Yes, sir.

[00:05:57] Speaker 01:
It would be a question of was it reasonable?

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I mean, it actually goes at one of the core of the case.

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Was it reasonable for Deputy Williams to believe under the circumstances that Mr. Hallam posed any kind of threat

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of harm to Officer Trout, and we say no.

[00:06:19] Speaker 01:
When you look at the video, the surveillance video, he approaches from the backside of Mr. Hallam's vehicle.

[00:06:34] Speaker 01:
Mr. Hallam had had his arms out.

[00:06:38] Speaker 01:
He's clearly unarmed.

[00:06:40] Speaker 01:
Never.

[00:06:40] Speaker 05:
He's walking towards the officer.

[00:06:43] Speaker 05:
He walks forward, gets pushed back, and he comes back again.

[00:06:48] Speaker 01:
He makes one step with his hands like this.

[00:06:54] Speaker 05:
Gets pushed.

[00:06:55] Speaker 01:
They're out front a little bit.

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I view them as being more to the side.

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He's clearly unarmed.

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He never clenches his fist.

[00:07:06] Speaker 01:
I don't think he makes any kind of threatening

[00:07:09] Speaker 01:
Move but he is making a forward motion you can see that in the video right yes, and he's pushed back He's being really cornered.

[00:07:18] Speaker 01:
I mean it's our view that it's really Officer trout that is is Being aggressive he's he's cornered in between trout and his in his vehicle They're having this conversation

[00:07:39] Speaker 01:
Mr. Helms testified he was respectful.

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He asked them to leave.

[00:07:46] Speaker 01:
Again, Trout knew that this was his place of business.

[00:07:52] Speaker 01:
And he does make the one step forward.

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He's pushed back against the car, steps forward again, then he's pushed back.

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And at the time that Williams arrives, immediately puts him in an arm bar.

[00:08:09] Speaker 01:
takes them down onto the pavement and causes some significant injuries, including a concussion and a fractured nose and under existing precedent,

[00:08:25] Speaker 01:
That's unreasonable.

[00:08:27] Speaker 01:
And it's excessive.

[00:08:27] Speaker 04:
What is the existing precedent that you rely on for the clearly established component?

[00:08:34] Speaker 01:
The most applicable case, because it involves a takedown, is Morris versus Noe.

[00:08:42] Speaker 01:
And that case also involved an alleged disturbance, a house that had been ransacked,

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But actually, in that case, the court gave credence to the idea that Mr. Morris was suspected of assault.

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And here there's no evidence again that Mr. Hallam, there was any reason to think that he committed any crime, let alone a violent crime.

[00:09:17] Speaker 04:
But we're looking at it from the moment, we're looking at the use of force at the moment, right?

[00:09:22] Speaker 04:
We have to identify the moment that the force was used, what was going on at that moment.

[00:09:28] Speaker 04:
And in Morris, the plaintiff had his hands in the air and was walking backward toward the officers.

[00:09:34] Speaker 04:
I mean, the facts just seem

[00:09:37] Speaker 04:
at the moment force was used to be different than the facts here.

[00:09:41] Speaker 04:
And for you to satisfy your burden on clearly established, don't you need to have some more symmetry in the factual circumstances?

[00:09:49] Speaker 01:
Well, I mean, you're never going to find a case

[00:09:56] Speaker 01:
Or rarely, we find a case that's factually identical.

[00:10:01] Speaker 04:
Right, and I agree with that.

[00:10:03] Speaker 04:
But aren't the relevant facts, the dispositive facts, different enough that Morris is not a particularly supportive case for you?

[00:10:11] Speaker 01:
No, I don't think so.

[00:10:12] Speaker 01:
I actually think that the situation in Morris was more potentially dangerous.

[00:10:25] Speaker 01:
Quentin Bell individual.

[00:10:27] Speaker 01:
There's a verbal altercation between Mr. Morris and Quentin Bell.

[00:10:33] Speaker 01:
And then Bell starts approaching Mr. Morris in an aggressive manner.

[00:10:41] Speaker 01:
There was reasonably that some kind of fight was about to occur.

[00:10:50] Speaker 05:
And Mr. Morris tries to de-escalate by putting his hands up in the air, not like this, up in the air, and walking backwards away from the aggressor.

[00:11:02] Speaker 01:
Right.

[00:11:03] Speaker 04:
That's the dispositive fact, isn't it?

[00:11:06] Speaker 01:
Well, I think it's, again, that in both situations, hands out, unarmed, not posing any immediate threat,

[00:11:20] Speaker 01:
And then you have a takedown, a forceful takedown in both cases.

[00:11:28] Speaker 03:
Deputy Williams, I think it's in his brief, one of the appellee briefs, says that the closer case here is Gallegos versus City of Colorado Springs.

[00:11:42] Speaker 03:
Right.

[00:11:44] Speaker 03:
Why isn't that correct?

[00:11:45] Speaker 01:
Well, so Gallegos, in that case,

[00:11:51] Speaker 01:
when the force is used, you actually have the suspect.

[00:12:00] Speaker 01:
First, he's grabbed by his shoulder, he jerks away.

[00:12:04] Speaker 01:
And then the way it's described, he turns around with his fist clenched in a, quote, wrestler's position.

[00:12:15] Speaker 01:
There's nothing approaching that in this case.

[00:12:17] Speaker 01:
I mean, again, we have Mr. Hallam never clenched his fist, never threatened anyone, and never got down into any kind of provocative position, like a wrestling position, never jerked away.

[00:12:37] Speaker 01:
And so I think that there, I think that,

[00:12:43] Speaker 01:
Morris is more factually similar.

[00:12:49] Speaker 01:
Just briefly with respect to the district court's order, one of the other issues is the third factor under Graham v. Connor.

[00:13:04] Speaker 01:
The district court found it was inapplicable because

[00:13:10] Speaker 01:
Mr. Hallam was actually not being placed under arrest.

[00:13:14] Speaker 01:
I think that that's based on Polly versus White, that that's erroneous as a matter of law.

[00:13:23] Speaker 01:
And the third factor should have weighed heavily in our favor.

[00:13:29] Speaker 05:
Well, under our case law, doesn't the failure to obey commands cut against the plaintiff on the third gram factor?

[00:13:41] Speaker 01:
On the third grand factor, so the question under the third grand factor is whether there was active resistance.

[00:13:49] Speaker 05:
Right, but we have a case law that says that if the plaintiff was given instructions and not following them, that weighs against the plaintiff in the analysis in the third factor.

[00:14:06] Speaker 01:
I'm still not clear what, based on the record, what command it was that Mr. Well, he came forward and he was pushed back once and he didn't stay back.

[00:14:18] Speaker 05:
He came forward again.

[00:14:19] Speaker 05:
So Officer Williams, who sees that, whether he reasonably would have interpreted that as him refusing to follow instructions to back off.

[00:14:35] Speaker 01:
I still believe that he's at most passive resistance.

[00:14:43] Speaker 01:
And passive resistance alone is not grounds to escalate force to the extent that you're slamming someone down on the pavement.

[00:14:56] Speaker 01:
And I see that I've got 10 seconds left.

[00:15:02] Speaker 01:
Does anyone have any other questions?

[00:15:06] Speaker 01:
Thank you.

[00:15:07] Speaker 03:
Thank you, counsel.

[00:15:24] Speaker 00:
Your honors, may it please the court.

[00:15:25] Speaker 00:
My name is John Kim.

[00:15:26] Speaker 00:
I'm counsel for defendant Appellee Ronald Williams in this appeal.

[00:15:31] Speaker 00:
I don't want to belabor the facts.

[00:15:32] Speaker 04:
Could you speak up a little bit?

[00:15:33] Speaker 04:
I'm sorry to interrupt you.

[00:15:34] Speaker 00:
Sure, Your Honor.

[00:15:35] Speaker 00:
Apologize.

[00:15:36] Speaker 00:
Again, I'm counsel for the defendant, Appellee Ronald Williams.

[00:15:40] Speaker 00:
I don't want to belabor the facts, as you're well aware from the briefs now.

[00:15:44] Speaker 00:
And there's surveillance video that captured the entire incident.

[00:15:49] Speaker 00:
But as this is a case of qualified immunity, there are some key facts that I feel like bears underscoring.

[00:15:57] Speaker 00:
It's a late night commercial burglary alarm.

[00:16:01] Speaker 00:
Delaware County Sheriff's Deputy Ronald Williams and Thomas Beck were dispatched.

[00:16:05] Speaker 00:
They arrived at a scene that was consistent with the commercial burglary.

[00:16:10] Speaker 00:
I believe Williams looked through the front window of Higher Health and he saw broken products on the ground, glass, marijuana plants thrown about.

[00:16:19] Speaker 00:
The scene looked consistent with the burglary.

[00:16:22] Speaker 00:
Shortly around their arrival, Bernie's police officer Jerry Trout arrives.

[00:16:28] Speaker 00:
And Williams asks Trout and Beck to stay behind with this man as he goes and investigates further.

[00:16:33] Speaker 00:
He goes to the back of the building.

[00:16:35] Speaker 00:
The back door, while locked, had been pried open, again, consistent with a burglary.

[00:16:41] Speaker 00:
He goes inside.

[00:16:42] Speaker 00:
The scene is consistent, yet again, with a burglary.

[00:16:46] Speaker 00:
There's broken products on the ground.

[00:16:48] Speaker 00:
Speakers have been ripped off the wall, blaring music, cash strewn about on the floor.

[00:16:55] Speaker 00:
Williams goes around to the back of the front of the building.

[00:16:58] Speaker 00:
goes around to the front of the building and comes upon Officer Trout speaking to an unidentified man.

[00:17:05] Speaker 03:
And as he nears... Well, let me ask you about that.

[00:17:08] Speaker 03:
Yes, sir.

[00:17:09] Speaker 03:
Unidentified man.

[00:17:11] Speaker 03:
We talked a little bit with Mr. Blykman about this.

[00:17:15] Speaker 03:
And doesn't the record permit an inference, or could a jury

[00:17:23] Speaker 03:
to find that Officer Trout knew that Mr. Hallam owned the store and that he gave that information to Deputy Williams.

[00:17:33] Speaker 00:
Well, Your Honor, if I recall correctly from Trout's narrative, he doesn't ever state that he conveyed that information to Williams.

[00:17:41] Speaker 03:
I'm asking if there can be an inference.

[00:17:43] Speaker 03:
If he stated he conveyed the information, we wouldn't even have to draw an inference.

[00:17:47] Speaker 03:
So I'm asking whether the record would permit an inference.

[00:17:51] Speaker 03:
For example, does the video show that the two of them talked, Trout and your client, before Deputy Williams went into the store?

[00:18:02] Speaker 00:
Your Honor, if that inference is drawn, I still don't think it changes the analysis under Graham, because if we take away the commercial burglary aspect of it, the surveillance video shows that

[00:18:11] Speaker 03:
Well, no, I understand.

[00:18:14] Speaker 03:
That, I think, should be your next point.

[00:18:16] Speaker 03:
But your first point should be either you agree there could be an inference or there couldn't be an inference.

[00:18:22] Speaker 00:
Your Honor, I presume an inference could be drawn.

[00:18:25] Speaker 04:
And what would you base that on?

[00:18:28] Speaker 00:
Well, I guess it would be the lack of evidence to suggest that that information was not conveyed, although the record on appeal does not show affirmatively that information was actually conveyed to Williams.

[00:18:39] Speaker 00:
But they spoke.

[00:18:40] Speaker 00:
They did speak, yes.

[00:18:42] Speaker 05:
And there's no audio until after he's handcuffed, right?

[00:18:46] Speaker 00:
Yes, Your Honor, that's correct.

[00:18:47] Speaker 00:
There's no audio in the surveillance video, so based on the evidence on the record on appeal, there's nothing to actually suggest that that information, that this man was Mr. Hallam and the owner of Higher Health is supported in the record.

[00:19:02] Speaker 00:
But going back to the facts, as Deputy Williams is rounding the corner.

[00:19:07] Speaker 04:
Could you answer Judge Matheson's, I guess, the second part of your answer to his question?

[00:19:12] Speaker 04:
If the inference is drawn, how does that change the analysis?

[00:19:15] Speaker 00:
Your Honor, I don't think it changes the analysis.

[00:19:17] Speaker 00:
Because as Williams is approaching, he sees this unidentified man, which we later know to be Mr. Hallam.

[00:19:23] Speaker 03:
Well, counsel, it changes that in the sense that it takes burglary off the table.

[00:19:29] Speaker 00:
Yes, Your Honor, but I believe that leads into the fact that an assault occurred.

[00:19:34] Speaker 00:
I believe the surveillance video is clear that when Officer Trout pushes Mr. Hallam back, he's sending a very clear message.

[00:19:41] Speaker 00:
It wasn't a light tap on the shoulder.

[00:19:43] Speaker 00:
He's very clearly demonstrating a message to Mr. Hallam to stay back.

[00:19:46] Speaker 00:
You're very close.

[00:19:47] Speaker 03:
Your opposing counsel sees it as Officer Trout engaging in the assault if conduct and not Mr. Hallam.

[00:19:56] Speaker 00:
Yes, Your Honor, but as a law enforcement officer, I believe Officer Trout is entitled to secure the scene as they finish their investigation.

[00:20:04] Speaker 00:
And after Officer Trout sends this clear message, and despite the clarity of this message, Mr. Hallam, with his arms out to his side, steps back within arm's reach of Officer Trout during the course of this criminal investigation.

[00:20:18] Speaker 00:
I think that weighs towards the second and most important grand factor is the immediacy of the threat

[00:20:24] Speaker 00:
I believe when Williams sees this, he has to act quickly to secure the scene and the safety of all the officers on scene.

[00:20:32] Speaker 00:
And Mr. Hallam may characterize his hands out to the side as being compliant, but his hand was not above his head as normally one would show to compliance or behind his head.

[00:20:47] Speaker 03:
Can I just ask you, we have, I guess we have

[00:20:51] Speaker 03:
Step forward, push back.

[00:20:53] Speaker 03:
Step forward, push back.

[00:20:56] Speaker 03:
So we have two of those.

[00:20:59] Speaker 03:
Does the record show that Deputy Williams witnessed both of those?

[00:21:04] Speaker 00:
Yes, Your Honor.

[00:21:05] Speaker 00:
You can see Deputy Williams rounding the corner as Officer Trout is executing the first push.

[00:21:15] Speaker 00:
And again, for purposes of qualified immunity,

[00:21:19] Speaker 00:
one asserted its plaintiff's burden to identify a case where an officer acting under similar circumstances had been found to have violated the law.

[00:21:29] Speaker 00:
And Morris v. No is very distinguishable.

[00:21:36] Speaker 00:
As the court noted, Mr. Morris was unarmed, had never

[00:21:43] Speaker 00:
never approached with an arm's reach of Mr. Quentin Bell, who was one of the individuals involved in the domestic disturbance.

[00:21:50] Speaker 00:
He did not threaten him with words or gestures.

[00:21:54] Speaker 00:
And when Bell came towards him, Mr. Morris backed away with his hands up, with his back to the officers, retreating back towards the officers.

[00:22:04] Speaker 00:
That's in stark contrast to Mr. Hallam, where he had his hands up

[00:22:07] Speaker 00:
which can reasonably construed as inviting violence and steps positively towards Officer Trout, not once, but twice, even after he had been given a clear warning to stay back.

[00:22:20] Speaker 00:
Additionally, in Morris, a panel of this court had found that the records showed that the situation was, quote, calm and under control, whereas here in this appeal,

[00:22:30] Speaker 00:
There was nothing calm and under control until after the scene had been secured.

[00:22:34] Speaker 00:
Again, it's in stark contrast to Moore's first snow.

[00:22:38] Speaker 05:
Well, with regard to how calm and under control it was, there's a dispute about whether there was anger and screaming and stuff as opposed to a calm discussion.

[00:22:56] Speaker 05:
And again, we don't have any audio at that point, so don't we have to take the plaintiff's allegations there?

[00:23:04] Speaker 00:
Yes, Your Honor, if you solely rely on the surveillance video, as it does not have audio, but the record also has an audio recording after the subject use of force.

[00:23:14] Speaker 05:
Well, we do have that, and we have the video of it banging the head on the wall and all of that, but the critical moment

[00:23:23] Speaker 05:
is at the time force was applied.

[00:23:26] Speaker 05:
And we have the plaintiff saying, I was very calmly discussing it, and there was no reason for this aggression by the officer.

[00:23:36] Speaker 00:
Yes, Your Honor.

[00:23:37] Speaker 00:
Even if we take out the audio component of that, if Mr. Hallam had never said any words, it doesn't change the fact his actions showed otherwise with his arms out, stepping towards an officer after being told clearly to step back and stay back

[00:23:52] Speaker 00:
And not only that, he was within arm's reach of this officer, which in those circumstances I can't imagine any situation where it's appropriate for an individual to come within arm's reach of an officer after being directed not to.

[00:24:11] Speaker 00:
As for purposes of the qualified immunity analysis, Mr. Hallam's opening brief also cites to Dixon v. Richer and Casey v. City of Federal Heights, both of which can also be distinguished from this case.

[00:24:26] Speaker 00:
In Dixon, unlike this appeal, Mr. Dixon was compliant with all orders.

[00:24:32] Speaker 00:
His hands were up against the van.

[00:24:33] Speaker 00:
He was unarmed.

[00:24:34] Speaker 00:
He had been frisked.

[00:24:36] Speaker 00:
Mr. Hallam had not been frisked.

[00:24:40] Speaker 00:
Mr. Dixon had complied with all orders from law enforcement officers.

[00:24:44] Speaker 00:
And in fact, the first initial investigating officer had actually kicked the instep of Mr. Dixon fairly hard, causing Mr. Dixon to turn around and curse at the officer and ask him if that was necessary.

[00:24:57] Speaker 00:
A panel of this court had actually determined that that first kick was reasonable under the circumstances and that him turning around and cursing at the officer could be considered an act of resistance.

[00:25:10] Speaker 00:
But afterwards, as additional officers arrived and they conversed amongst each other, for whatever reason, an officer again kicks Mr. Dixon, hits him with a flashlight, choked and beat him after being frisked, and Mr. Dixon wasn't making any aggressive moves.

[00:25:27] Speaker 00:
None of those facts were present in this underlying appeal.

[00:25:30] Speaker 00:
And as, of course, probably very well familiar with Casey v. City of Federal Heights,

[00:25:37] Speaker 00:
Mr. Casey was just unsuccessfully disputing a traffic citation when he left the courthouse with a file that he wasn't supposed to take.

[00:25:46] Speaker 00:
After being accosted by an officer, Mr. Casey tried to hand the file back.

[00:25:51] Speaker 00:
The officer didn't take the file, and for whatever reason, without giving commands, grabbed Mr. Casey.

[00:25:57] Speaker 00:
Another officer arrives on scene, tasers Mr. Casey.

[00:26:02] Speaker 00:
Yet more officers arrive on scene.

[00:26:04] Speaker 00:
Take Mr. Casey down to the ground.

[00:26:07] Speaker 00:
bang his face into the ground and another officer drives, stuns him with the taser.

[00:26:12] Speaker 00:
Again, none of those facts are remotely similar to what happened to Mr. Hallam on March 30th.

[00:26:19] Speaker 04:
Counsel, the District Court thought that the third gram factor wasn't relevant here.

[00:26:23] Speaker 04:
What is your position on whether the District Court aired?

[00:26:27] Speaker 00:
Your Honor, for purpose of the gram analysis,

[00:26:30] Speaker 00:
With the second factor being satisfied being the most important and the first factor also favoring Ronald Williams, I mean, the severity of the crime, I think regardless of whether the third factor applied or not, ultimately the analysis still favors Ronald Williams.

[00:26:44] Speaker 04:
Well, doesn't that change if the severity of the crime, if it's not burglary, doesn't that change the analysis significantly?

[00:26:53] Speaker 00:
Yes, Your Honor.

[00:26:54] Speaker 00:
Would it be fair to assume that we can replace that with the assault committed on Officer Trapp by Mr. Hallam?

[00:26:59] Speaker 04:
Well, what is your argument?

[00:27:01] Speaker 04:
I think that's your position, isn't it?

[00:27:02] Speaker 00:
Yes, it is, Your Honor.

[00:27:03] Speaker 04:
Okay.

[00:27:03] Speaker 04:
So then you would say that the first two factors favor you and the third could be a wash.

[00:27:09] Speaker 00:
It could be, but if we replace the first element of Graham with an assault, then I think the third factor then swings in favor of Williams because he's been told not to step within arm's reach and did so regardless of the warning.

[00:27:29] Speaker 00:
Your honor, is there any other questions?

[00:27:33] Speaker 00:
Thank you, counsel.

[00:27:33] Speaker 00:
Thank you for your time.

[00:27:47] Speaker 02:
Thank you, your honors.

[00:27:48] Speaker 02:
Andy Artis for the sheriff.

[00:27:51] Speaker 02:
I had a brief conversation with Mr. Blakemore, who confirmed that they did not, as they did not put it in their briefs, appealing

[00:27:59] Speaker 02:
the granting of the motion for summary's judgment for the sheriff, because it's a Monell claim, and the judge found that there was no policy that would have caused an underlying violation.

[00:28:08] Speaker 02:
Of course, the judge found there was no underlying constitutional violation, but there was also no evidence of any policy that caused it.

[00:28:14] Speaker 02:
In the brief by the plaintiffs, they don't address that very important issue and have conceded it.

[00:28:20] Speaker 02:
And then just talking to Mr. Blakemore, he confirmed that to me beforehand.

[00:28:24] Speaker 02:
So with that,

[00:28:26] Speaker 02:
I can answer any other questions you have, but I think that issue has been confessed here.

[00:28:32] Speaker 02:
I would address some of the things you were saying about whether or not Ms.

[00:28:36] Speaker 02:
Williams knew or didn't know who Hallam was at the time he went around the business.

[00:28:45] Speaker 02:
There's no evidence that he did.

[00:28:46] Speaker 02:
Trout doesn't ever testify that he told him.

[00:28:50] Speaker 02:
Williams says in sworn testimony he didn't know.

[00:28:55] Speaker 02:
And once he got him down and he cuffed him, he called 911 and said, record all this, because he didn't have a recording device.

[00:29:04] Speaker 02:
And they recorded it.

[00:29:05] Speaker 02:
And you can hear him talking to him.

[00:29:07] Speaker 02:
And you can hear him realize, oh, you're the owner.

[00:29:10] Speaker 02:
And then he uncuffs him.

[00:29:11] Speaker 02:
So that's really clear, makes it very clear that he didn't know until the time after he had taken him down.

[00:29:20] Speaker 02:
And then with regard to the third factor, I think,

[00:29:26] Speaker 02:
the court was correct in the questioning that he's failing to obey commands, and I think that goes to his actively resisting.

[00:29:35] Speaker 02:
No, he wasn't resisting arrest at that time, because this was a Terry stop, but he's actively resisting.

[00:29:41] Speaker 02:
And Williams comes around.

[00:29:42] Speaker 02:
He sees violence in the pawn shop.

[00:29:46] Speaker 02:
I mean, the pawn shop, in the marijuana shop.

[00:29:49] Speaker 02:
Things are broken, strewn around.

[00:29:50] Speaker 02:
Whoever did this was violent.

[00:29:53] Speaker 02:
He comes around, sees an altercation

[00:29:57] Speaker 02:
And he has to act quickly, swiftly, like it says.

[00:29:59] Speaker 02:
You don't have time to think in the spirit of the moment.

[00:30:02] Speaker 02:
You can't look at it 2020 and say, oh, he was the owner later on.

[00:30:05] Speaker 02:
You have to look at it right there.

[00:30:06] Speaker 02:
And then I'm pretty much out of time.

[00:30:08] Speaker 05:
Let me go back to the reliance on Deputy Williams' statements.

[00:30:14] Speaker 05:
There's been raised a problem of credibility based on Deputy Williams' subsequent perjury about having methamphetamine and marijuana in his truck.

[00:30:26] Speaker 05:
How does that affect us in terms of assessing whether or not we can rely on his affidavit that he didn't know?

[00:30:36] Speaker 02:
Well, I don't think that happened anywhere near this time frame, so I don't think it's relevant.

[00:30:41] Speaker 05:
It doesn't have to happen near the time frame to affect his credibility in terms of impeachment if this were to go to before a jury.

[00:30:50] Speaker 02:
Well, I mean, you have the recording of exactly what happened, the video, and then you also have the recording of him talking and knowing.

[00:30:57] Speaker 05:
Well, we don't have an audio recording of what was said between Officers Trout and Officer Williams about who the person in the car was.

[00:31:07] Speaker 02:
Well, we have Officer Trout who said he didn't tell him, and we have

[00:31:10] Speaker 02:
And we have Officer Williams who said, I didn't know.

[00:31:13] Speaker 02:
We don't have anybody else's testimony.

[00:31:15] Speaker 02:
And then we have the audio afterwards where it's clear that he didn't know until after he had cuffed him.

[00:31:22] Speaker 02:
And then at that point, he uncuffed him.

[00:31:25] Speaker 02:
That's all I have other questions.

[00:31:27] Speaker 02:
Thank you, counsel.

[00:31:32] Speaker 03:
Before we excuse counsel, Mr. Blakemore, could I just ask you a quick question?

[00:31:40] Speaker 03:
button this down.

[00:31:41] Speaker 03:
Yes, sir.

[00:31:45] Speaker 03:
I take it that you are not appealing the district court's ruling as to the sheriff.

[00:31:52] Speaker 03:
No, I have not.

[00:31:53] Speaker 03:
You're waiving any appeal on that.

[00:31:55] Speaker 01:
Yes, I was actually somewhat surprised to see Mr. Artis this morning, but.

[00:32:01] Speaker 03:
All right, I just want to make sure that it's clear on the record.

[00:32:03] Speaker 01:
Yes, we are not appealing them.

[00:32:04] Speaker 03:
Thank you.

[00:32:05] Speaker 01:
Thank you.

[00:32:07] Speaker 03:
Thank you to all counsel.

[00:32:09] Speaker 03:
Appreciate your arguments.

[00:32:11] Speaker 03:
Case will be submitted and counsel are excused.