[00:00:00] Speaker 02: 24-2068, Salgado versus Smith. [00:00:48] Speaker 02: Ms. [00:00:48] Speaker 02: Barkley, when you're ready to proceed. [00:01:01] Speaker 03: I'd like to reserve four minutes every bottle, if I may? [00:01:06] Speaker 02: You've seen how that works. [00:01:09] Speaker 03: OK. [00:01:09] Speaker 03: It's less than five. [00:01:13] Speaker 03: Good morning, Judge Hartz, Judge Phillips, and Judge Eyde. [00:01:17] Speaker 03: I'm Jamison Barkley. [00:01:19] Speaker 03: I'm here on behalf of plaintiff appellant Angelique Salgado, the mother of Jonathan Molina. [00:01:26] Speaker 03: Angelique Salgado is here with us today. [00:01:30] Speaker 03: We're here to ask the court to reverse the district court because a reasonable officer would know that when a suspect is subdued, you don't shoot again. [00:01:41] Speaker 03: Jonathan Molina was killed by defendant Officer Smith at a traffic stop wherein he was the passenger. [00:01:49] Speaker 03: And the officer, after having shot Jonathan Molina one time in the chest, the officer stepped back behind the car. [00:01:58] Speaker 03: Six to eight seconds passed. [00:02:02] Speaker 03: And then he comes back and finishes the job and shoots Jonathan seven additional times. [00:02:07] Speaker 01: Comes back. [00:02:08] Speaker 01: Didn't he fire from the back? [00:02:10] Speaker 03: Well, I'm very glad that you asked that. [00:02:12] Speaker 03: And I think that's really the central idea. [00:02:14] Speaker 03: And that's really where the district court got it wrong. [00:02:17] Speaker 03: If you look at the video, and I've heard you say this morning, you've watched lots of videos, so I assume you have. [00:02:23] Speaker 03: The car that was stopped was a Honda Del Sol. [00:02:26] Speaker 03: It's a tiny car. [00:02:27] Speaker 03: It's a blue car. [00:02:28] Speaker 03: It's got two seats in it. [00:02:30] Speaker 03: And the officer after, with a little leeway, I'm going to show you kind of how the action unfolded. [00:02:37] Speaker 03: The officer is here at the passenger window. [00:02:40] Speaker 03: And as you may have seen in the record, he gets inside the passenger compartment. [00:02:45] Speaker 02: There's a scuffle. [00:02:47] Speaker 03: OK, thank you. [00:02:48] Speaker 03: There's a scuffle. [00:02:51] Speaker 03: The officer is inside the passenger compartment for a minute. [00:02:56] Speaker 03: And during that time, he's punching Jonathan. [00:02:59] Speaker 03: And we know that Jonathan died not only of the gunshot wounds, but of blunt force trauma. [00:03:05] Speaker 03: A gun goes off. [00:03:07] Speaker 03: There's no evidence of intentional discharge. [00:03:10] Speaker 03: The officer emerges from the passenger compartment, shoots Jonathan. [00:03:14] Speaker 03: He's holding him down with his left hand. [00:03:16] Speaker 03: He shoots him with his right hand in the chest. [00:03:19] Speaker 03: He steps back. [00:03:23] Speaker 03: And he steps back along the passenger side of the car. [00:03:26] Speaker 03: He goes to the back of the car. [00:03:28] Speaker 03: These six to eight seconds pass. [00:03:32] Speaker 03: Excuse me. [00:03:35] Speaker 03: While he's at the back of the car, he says in his testimony that he determined to end the threat. [00:03:41] Speaker 02: Better if you speak about it. [00:03:42] Speaker 03: Sure, sure, sure, sure. [00:03:44] Speaker 03: He says he determined to end the threat. [00:03:46] Speaker 03: So he's at the back of the car, and he steps out, and he fires here, here, here, here, here, seven times. [00:03:57] Speaker 03: So he's actually, as he's firing, he's walking alongside of the passenger side of the car. [00:04:03] Speaker 03: And the passenger door is open. [00:04:08] Speaker 01: The officer's been shot already too. [00:04:10] Speaker 03: The officer was shot. [00:04:14] Speaker 03: Inside, while he's inside the passenger compartment. [00:04:17] Speaker 03: There's scuffling. [00:04:19] Speaker 03: He's hitting Jonathan. [00:04:20] Speaker 03: He ends up biting Jonathan. [00:04:23] Speaker 03: There's an unintentional, there's a discharge of a firearm. [00:04:26] Speaker 03: And there's no, I'm sorry. [00:04:28] Speaker 02: Let's focus on the key point that you made at the outset. [00:04:32] Speaker 03: Sure. [00:04:32] Speaker 02: That he, the officer cannot shoot [00:04:37] Speaker 02: the suspect who's been subdued? [00:04:39] Speaker 03: Absolutely. [00:04:40] Speaker 02: OK, so the question is, did he know that Salgado was subdued? [00:04:47] Speaker 02: Absolutely. [00:04:48] Speaker 02: And did he know when he shot Salgado that Salgado was mortally wounded? [00:04:59] Speaker 03: Looking at the video, Your Honor, of course he knew that. [00:05:02] Speaker 03: He, again, like I said, he's holding him with one hand. [00:05:05] Speaker 03: and he shoots him down at the chest. [00:05:08] Speaker 03: The testimony is he shoots down into Mr. Molina's center mass, high center mass. [00:05:13] Speaker 03: That's where they're trained to shoot. [00:05:16] Speaker 03: And the evidence in the record, we know Jonathan Molina had two gunshot wounds to the chest. [00:05:22] Speaker 03: So that first one hit the chest. [00:05:26] Speaker 03: The officer sees the impact of that. [00:05:29] Speaker 03: He steps again, steps away. [00:05:31] Speaker 02: And then after six seconds. [00:05:33] Speaker 03: Six to eight seconds. [00:05:34] Speaker 02: Then he says, [00:05:36] Speaker 02: Come out with your hands up or something like that. [00:05:38] Speaker 03: After he's shot. [00:05:40] Speaker 02: After the first shot. [00:05:41] Speaker 02: Before the next six. [00:05:43] Speaker 02: He says something to Salgado, does he not? [00:05:46] Speaker 03: No, he does not say anything before the second shot. [00:05:49] Speaker 03: He just starts shooting. [00:05:52] Speaker 03: He's at the back of the car. [00:05:53] Speaker 03: He takes one shot through the small passenger, excuse me, the rear window. [00:05:58] Speaker 03: He takes a shot, and he just keeps shooting. [00:06:01] Speaker 02: He didn't say one word about come out, drop your gun and come out or anything. [00:06:04] Speaker 03: No, I do believe he was yelling. [00:06:06] Speaker 03: There was some curse words. [00:06:07] Speaker 03: If you've seen the video, the audio is very garbled. [00:06:11] Speaker 03: So you can catch a word every now and then. [00:06:13] Speaker 03: So he was screaming. [00:06:15] Speaker 03: He was yelling something. [00:06:16] Speaker 01: He was yelling, show me your hand. [00:06:19] Speaker 01: Which is how you don't get shot, as if the other person shows their hands. [00:06:23] Speaker 01: And no hands were shown. [00:06:25] Speaker 03: Well, but that's not exactly right. [00:06:28] Speaker 03: Because what happened was, at the beginning, he can't see the hands. [00:06:31] Speaker 03: But as he's walking around here, the passenger door is open. [00:06:35] Speaker 03: The officer testified at his statement, the statement that he gave that morning, that he saw Jonathan, that Jonathan was not trying to escape out of the vehicle. [00:06:46] Speaker 03: and that he did not see that small caliber weapon. [00:06:50] Speaker 01: But shouldn't the officer in that situation, this very unfortunate situation, shouldn't the officer be concerned that been shot once could be shot again? [00:06:59] Speaker 03: Sure, Your Honor, but there has to be an analysis. [00:07:02] Speaker 03: That's just not it. [00:07:04] Speaker 03: You can't just say, OK. [00:07:05] Speaker 02: You don't have a lot of time to conduct an analysis. [00:07:07] Speaker 03: Well, but he had six to eight seconds, and that's more than in Fanshawe. [00:07:11] Speaker 03: In Fanshawe, the officer had five to seven seconds. [00:07:14] Speaker 03: Here we have more time. [00:07:15] Speaker 01: That was daylight. [00:07:18] Speaker 03: Okay. [00:07:18] Speaker 01: And he saw him slump. [00:07:20] Speaker 03: But you know, Your Honor, a jury could see the video in this case and ascertain that the officer saw Jonathan slump as well. [00:07:28] Speaker 03: He was so close to him, Your Honor. [00:07:29] Speaker 03: He couldn't have not seen that. [00:07:31] Speaker 01: What should the officer have done knowing that ambulance service is required? [00:07:36] Speaker 03: Sure. [00:07:37] Speaker 03: After he shot Jonathan the first time? [00:07:39] Speaker 01: Yes. [00:07:39] Speaker 03: He should remain in cover. [00:07:42] Speaker 03: He should [00:07:44] Speaker 03: deal with the driver because he said he had a fear about the driver so handle the other person. [00:07:50] Speaker 03: He should call for backup. [00:07:51] Speaker 03: That's the first thing he'd done. [00:07:52] Speaker 03: He'd never even called for backup at this point. [00:07:56] Speaker 01: You can't wait for sunrise. [00:07:57] Speaker 01: You've got a man who's bleeding and you're not going to send the ambulance workers in there not knowing if the guy has a gun and he's still conscious. [00:08:05] Speaker 01: So I don't see the good answer here for what is supposed to happen. [00:08:10] Speaker 03: Sure. [00:08:10] Speaker 03: Well, I guess what I would say is I don't think that the record is clear that he didn't see the suspect. [00:08:15] Speaker 03: He saw the suspect. [00:08:17] Speaker 03: He was within a couple of feet of the suspect. [00:08:19] Speaker 02: What about the report? [00:08:23] Speaker 02: Did he not testify and doesn't his... He had a body cam on? [00:08:28] Speaker 03: No. [00:08:29] Speaker 03: I wish he did. [00:08:30] Speaker 02: There was a dash cam. [00:08:31] Speaker 02: Okay. [00:08:32] Speaker 02: Does the dash cam show [00:08:34] Speaker 02: that Mr. Salgado stuck a foot out of the door after he was shot? [00:08:40] Speaker 03: What the dash cam shows is it's a foot flopping. [00:08:45] Speaker 03: It's an involuntary movement. [00:08:48] Speaker 03: And what I would direct the court's attention to is... How is that visible? [00:08:54] Speaker 02: You're looking at some sort of video that shows his foot flopping. [00:08:59] Speaker 02: What is that video? [00:09:01] Speaker 03: Okay, so there's one, basically there's one primary video in this case. [00:09:06] Speaker 03: It was the dash cam of the police unit. [00:09:08] Speaker 02: The police unit. [00:09:09] Speaker 02: Okay, and that vehicle is in back of the. [00:09:12] Speaker 02: Yes. [00:09:13] Speaker 03: So if you look at the video, everything is from the rear of the blue Honda. [00:09:18] Speaker 02: So does that, so that, the dash cam on the police vehicle does show Mr. Salgado's foot. [00:09:27] Speaker 02: Is there anything else? [00:09:29] Speaker 02: of Mr. Salgado said appears outside the vehicle. [00:09:32] Speaker 02: He goes out the right front door. [00:09:35] Speaker 03: No, it's actually Mr. Salgado. [00:09:38] Speaker 03: You barely see him. [00:09:39] Speaker 03: He was in the passenger compartment the whole time until then his body is getting dragged out. [00:09:44] Speaker 03: I do want to say that in the statement that he gave to the investigating officers the morning of the shooting, he said that again, he saw Mr. Molina and this is in the record at 2 30. [00:09:54] Speaker 03: It's also in the record at 2 32. [00:09:57] Speaker 03: He saw Mr. Molina and this is, again, it makes sense because we know that he moved from the back of the car. [00:10:04] Speaker 03: And the car, if you look at the record. [00:10:11] Speaker 01: Well, don't you want him to move from the back of the car and be craning his neck to see if he's conscious or something? [00:10:19] Speaker 01: In other words, as soon as he saw, he stopped firing. [00:10:21] Speaker 03: No, no, no, no, no. [00:10:23] Speaker 03: That's not right. [00:10:24] Speaker 03: We'd have a very different case if that were right. [00:10:28] Speaker 03: That's not at all what happened. [00:10:31] Speaker 01: So you're maintaining that the record shows that after the gunshot, where the officer is struck and he goes to the back of the car, and he begins to swing around after your... I guess you're not saying he yelled, put your hands up. [00:10:45] Speaker 01: But as he makes his way around counterclockwise firing the weapon, [00:10:52] Speaker 01: that he continues to fire the weapon after he sees? [00:10:57] Speaker 03: That's what our whole case is about. [00:10:58] Speaker 01: All right. [00:10:58] Speaker 03: That's the case. [00:10:59] Speaker 03: And looking at, again, the statement he gave the morning, the morning of, he says, I pied to the right side of the vehicle so I could see him better. [00:11:09] Speaker 03: So he moves from directly behind the little Honda to over here. [00:11:13] Speaker 03: Again, the door's open. [00:11:15] Speaker 03: Mr. Molina is sitting there with a gunshot in the chest. [00:11:17] Speaker 01: Well, is he sitting there, or is he lying across the front seat in some fashion? [00:11:21] Speaker 03: Well, we don't know. [00:11:23] Speaker 03: Well, I'll tell you, actually, I guess I shouldn't say we don't know because when asked, the officer said he saw them sitting there. [00:11:29] Speaker 03: I saw him still sitting in the vehicle. [00:11:32] Speaker 03: And the agent, the state police said, what was he doing? [00:11:35] Speaker 03: Did you see a firearm at that point? [00:11:37] Speaker 03: I don't recall. [00:11:40] Speaker 03: I can't tell you what he was doing with it or where exactly it was at. [00:11:44] Speaker 01: But where does he say, and I continued to fire? [00:11:47] Speaker 03: Well, we know he continued to fire because of the video. [00:11:51] Speaker 03: And again, the statement is very pivotal. [00:11:56] Speaker 03: Before he had counsel, before his lawyer wrote him a 13-page affidavit to explain the best case scenario, he tells the investigators that morning that he ended the deadly threat, is what he said. [00:12:10] Speaker 03: And he decided when he was at the rear of the vehicle before he decided to end the deadly threat here. [00:12:16] Speaker 03: So he starts shooting, and he's seeing as he comes around. [00:12:20] Speaker 03: He's telling the investigator that morning, as I'm pying around, I saw Jonathan. [00:12:25] Speaker 03: I saw him sitting, and I didn't see a gun. [00:12:27] Speaker 01: There's gunfire exchange, and watching the video, you see traffic going by. [00:12:32] Speaker 01: Is that a concern that an innocent motorist is going to get one? [00:12:38] Speaker 03: Well, I think that would be a concern on the part of the citizenry against the officer. [00:12:42] Speaker 03: The officer is just firing wildly. [00:12:44] Speaker 01: Well, he doesn't shoot while the car goes by. [00:12:48] Speaker 03: Well, but he gets an awful lot of shots off, doesn't he? [00:12:53] Speaker 03: And I think you're right, and it's important to consider they are along I-25, the interstate, and the car was [00:13:01] Speaker 03: When the stop was initiated, the driver pulled between an exit ramp and the southbound lane. [00:13:11] Speaker 03: So he's in the area of the highway that's like hashed, striped, and there's traffic going by. [00:13:18] Speaker 03: But the officer never articulated any fear about surrounding folks. [00:13:23] Speaker 03: So that's not an issue here, Your Honor. [00:13:25] Speaker 03: The officer, by his own words, he said, [00:13:28] Speaker 03: It was not based on any new information, any new calculation of a threat. [00:13:33] Speaker 03: We know that the law requires the officers reconsider the use for lethal force when a suspect is subdued. [00:13:40] Speaker 03: And the Fancher case is directly on point here. [00:13:44] Speaker 03: In the Fancher case, the officer shot the suspect also in the chest at close range. [00:13:53] Speaker 03: Similarly, he was standing outside the vehicle with a suspect in the vehicle, just like our case. [00:13:59] Speaker 03: There were actually two loaded weapons, because in that case, the suspect was in the police vehicle. [00:14:05] Speaker 03: So in Fanshawe, there were two loaded weapons in the passenger compartment. [00:14:09] Speaker 01: Long guns. [00:14:10] Speaker 03: Long guns. [00:14:11] Speaker 01: Which are much easier to see if you're going to get shot with the long gun in the daylight. [00:14:14] Speaker 03: Sure. [00:14:15] Speaker 03: Sure, Your Honor. [00:14:16] Speaker 03: But the point is that there was weapon in the passenger compartment. [00:14:21] Speaker 03: And so the mere existence of a weapon in the passenger compartment does not provide for additional use of force after he was subdued. [00:14:30] Speaker 03: He's shot in the chest. [00:14:31] Speaker 03: The officer had more time than in future. [00:14:36] Speaker 03: The affidavit in this case is an improper attempt to insert the officer's subjective impressions of what happened. [00:14:45] Speaker 03: We know it's foundational that the standard of review is what would an objective officer do. [00:14:51] Speaker 03: an objectively well-trained officer. [00:14:54] Speaker 03: And we know that our case law is replete with the requirement that police officers recalculate the need for lethal force. [00:15:06] Speaker 03: And when a suspect has been subdued, you don't shoot again. [00:15:08] Speaker 03: What are we doing then? [00:15:09] Speaker 03: He's murdering this young man. [00:15:12] Speaker 01: I'm still searching for the answer to that question, which I agree is the correct one, which is, what would a reasonable officer do and what is reasonably [00:15:20] Speaker 01: objective conduct that we tolerate. [00:15:25] Speaker 01: Take cover, you said. [00:15:27] Speaker 01: So go behind the patrol car and crouch and then what? [00:15:33] Speaker 03: No, I mean he had cover behind the Honda. [00:15:36] Speaker 01: Well, you could get shot, you could get shot. [00:15:38] Speaker 03: How about start with that? [00:15:40] Speaker 01: Okay, but I still don't know how that solves the problem because the clock is ticking and a man is apparently mortally wounded and so you're just going to wait it out [00:15:49] Speaker 03: Well, that's a different concern, right? [00:15:51] Speaker 03: Saving the life. [00:15:52] Speaker 03: But I think in the immediacy, you call back up, and I'm looking at this car, and there's nothing happening. [00:15:57] Speaker 03: So what does... You can see in the video, there's screaming. [00:16:00] Speaker 03: Jonathan's screaming. [00:16:01] Speaker 01: And that's it. [00:16:02] Speaker 01: What does backup do? [00:16:04] Speaker 01: Join him crouching behind the automobile? [00:16:07] Speaker 03: No, Your Honor. [00:16:08] Speaker 03: No. [00:16:08] Speaker 03: Then they secure the driver. [00:16:11] Speaker 03: And I mean, by this point, then the officer is not feeling, I don't think, [00:16:16] Speaker 03: as if he needed to use that lethal force when he had backup. [00:16:22] Speaker 03: I mean, I don't know. [00:16:23] Speaker 03: I think he went off the rails a long time before these seven shots in terms of what would a reasonable officer do. [00:16:29] Speaker 03: A reasonable officer doesn't get in the passenger compartment of a two-seater car. [00:16:34] Speaker 03: A reasonable officer doesn't bite. [00:16:38] Speaker 03: A reasonable officer, again, doesn't say, OK, I'm going to go back and shoot another seven times to a man I just hit in the chest. [00:16:45] Speaker 03: And again, this is not, this is, there's not like a bank robbery here. [00:16:49] Speaker 03: There's not a kidnapping. [00:16:50] Speaker 03: There's not a rape. [00:16:51] Speaker 03: He's a, he's a passenger. [00:16:52] Speaker 02: Your time's expired. [00:16:53] Speaker 02: Thank you. [00:16:54] Speaker 02: I appreciate it very much. [00:16:55] Speaker 02: I have a question though. [00:16:56] Speaker 02: Yes. [00:16:56] Speaker 02: Something about Mr. Salgado screaming. [00:17:01] Speaker 02: Yes. [00:17:02] Speaker 02: How long in the sequence was he screaming? [00:17:05] Speaker 02: Was he screaming just before the second group of shots? [00:17:09] Speaker 02: Had he quit screaming by then? [00:17:12] Speaker 03: No, my recollection is he started screaming on the second through eighth shots. [00:17:19] Speaker 03: As he's getting fired on and it's kind of coming around, you know, he's screaming. [00:17:24] Speaker 03: He's screaming. [00:17:25] Speaker 03: Thank you. [00:17:26] Speaker 03: Thank you. [00:17:27] Speaker 03: Again, just based on the officer's own testimony, that's reasonable. [00:17:32] Speaker 03: A reasonable jury could conclude with that and looking at the video that this just was not reasonable. [00:17:38] Speaker 02: We don't allow this. [00:17:39] Speaker 03: Thank you. [00:17:41] Speaker 02: Mr. Robles. [00:17:48] Speaker 00: May it please the court. [00:17:50] Speaker 00: My name is Luis Robles, and I represent the appellee in this case, Officer Kevin Smith. [00:17:56] Speaker 00: I wanted to begin with making three points, but I recognize that the exchange that was had moments ago caused me to pity. [00:18:06] Speaker 00: And to answer a central question that you, Judge Hartz, had identified, [00:18:11] Speaker 00: And that is exactly what was happening right after that first shot was fired and then ultimately when the volley of seven rounds then began. [00:18:25] Speaker 00: Now, fortunately, we have a video so we can actually see what the officer is doing. [00:18:32] Speaker 00: And what's important about that first shot, and I want to say something else that's, I think, vitally important, [00:18:40] Speaker 00: In the district court, we argue that all of the use of force, the punching, the biting, the efforts that Officer Kevin Smith tried to use in order to gain custody of this man was objectively reasonable to include that first shot. [00:19:00] Speaker 00: the estate below abandoned those claims, and thus what we're left with is the acknowledgement that that use of force was constitutional. [00:19:13] Speaker 00: And the judge, Judge Herrera below says as much. [00:19:17] Speaker 00: Here, plaintiff does not dispute Officer Smith's arguments that he did not violate the Fourth Amendment during the first part of his struggle with Mr. Molina. [00:19:26] Speaker 00: That is when he punched Mr. Molina in the head, bit his arm, and fired his first shot at Mr. Molina. [00:19:32] Speaker 00: Rather, plaintiff argues that Officer Smith violated Mr. Molina's right to be free from excessive use of force when he shot Mr. Molina [00:19:42] Speaker 00: seven additional times after the shooting him for the first time. [00:19:47] Speaker 00: So there is this grand concession that everything leading up to those seven shots was constitutional. [00:19:54] Speaker 00: And thus the argument that's made, especially in the reply, that officer Smith's actions, pre-seizure actions, are reckless, must be abandoned because they gave up that argument down below. [00:20:06] Speaker 00: Now moving into that central argument, [00:20:09] Speaker 00: So we have constitutional conduct by the officer. [00:20:13] Speaker 00: He fires one round. [00:20:15] Speaker 00: He then has a malfunction. [00:20:17] Speaker 00: That's why he stops firing. [00:20:20] Speaker 00: So, and again, I can go into mechanics, but there's no need for that. [00:20:23] Speaker 00: There is the effort that's undertaken to clear the malfunction. [00:20:27] Speaker 00: And he's also trying to move away from the simple line of fire because Mr., you know, he has not disarmed Mr. Molina. [00:20:35] Speaker 00: Mr. Molina still has the gun, which he shot the officer with. [00:20:40] Speaker 00: And in order to lessen the threat, not eliminate the threat, but to create time, the officer moves back and away from. [00:20:48] Speaker 00: He gains a tactical advantage, and all that really means is he has more time to decide what to do. [00:20:56] Speaker 00: Now, in that time, with those six to seven seconds, the officer is assessing, I have a gun that doesn't work, [00:21:04] Speaker 00: You know, and he says in his deposition testimony as well as in his police interview and in the affidavit he did not know Whether mr. Molina had been shot or not and we can you know, I can steal man Was mr. Molina crying in pain during that time was he screaming in pain? [00:21:24] Speaker 02: He yelled He yelled Molina did yes he did [00:21:29] Speaker 02: Yes, he did. [00:21:30] Speaker 02: So wouldn't that indicate that he knew at least he'd shot him? [00:21:33] Speaker 02: He didn't know maybe how much Molina was injured. [00:21:39] Speaker 02: But if Molina screamed or yelled, wouldn't that indicate to Officer Smith that he had at least hit him with the bullet? [00:21:50] Speaker 00: That would be objective evidence from which a reasonable officer might conclude that. [00:21:55] Speaker 00: I would agree with that. [00:21:58] Speaker 00: What Officer Smith had to deal with is that he had not, and again, this is the part that I think is very interesting. [00:22:05] Speaker 00: We have someone who shot, and the states claim that he was subdued. [00:22:10] Speaker 00: I think what they're really trying to say is incapacitated. [00:22:13] Speaker 00: But Officer Smith had no way to determine in this tense uncertain situation whether one round actually incapacitated Mr. Molina such that he was no longer a threat. [00:22:26] Speaker 00: Again, the officer is dealing with a number of problems. [00:22:29] Speaker 00: I'm in the line of fire. [00:22:31] Speaker 00: I have a malfunction. [00:22:33] Speaker 00: I need to clear the malfunction and move out of this line of fire. [00:22:37] Speaker 00: And I think to myself, what case speaks to this more broadly? [00:22:40] Speaker 00: And I think of, I believe it is, let me see if I did cite that. [00:22:48] Speaker 00: Thomas versus Durastanti. [00:22:50] Speaker 00: There you have an agent who is facing a vehicle that's driving towards the agent. [00:22:56] Speaker 00: The agent is struck. [00:22:59] Speaker 00: He is hit. [00:23:00] Speaker 00: He rolls over the hood of the vehicle. [00:23:02] Speaker 00: And somehow, he ends up standing on his feet. [00:23:05] Speaker 00: And as the vehicle is leaving, when the vehicle is no longer an immediate or a serious bodily harm to the agent, he fires. [00:23:13] Speaker 00: And what the 10th Circuit Court of Appeals say about the reasonableness of such a decision, again, objectively, the vehicle was not going to strike him. [00:23:21] Speaker 00: It was moving away from him. [00:23:23] Speaker 00: But given that set of circumstances, that agent [00:23:27] Speaker 00: made a reasonable decision with the understanding of the really tremendous disorienting effect of being hit by a vehicle. [00:23:35] Speaker 00: Here we have a police officer who not only was shot, and this is all in the record, he was worried about bleeding out. [00:23:43] Speaker 00: Mr. Molina called out for his friend, Brandon Smith, to come and help him. [00:23:48] Speaker 00: So the officer had to contend with another person who might attack him from behind. [00:23:53] Speaker 00: And he was exhausted. [00:23:56] Speaker 00: That's what he faced. [00:23:58] Speaker 00: I'm sorry. [00:23:59] Speaker 02: Who was calling out for? [00:24:01] Speaker 00: Mr. Molina was calling out for the driver of the vehicle, Brandon Smith. [00:24:07] Speaker 00: OK. [00:24:07] Speaker 00: And so there's two Smiths in this case, the driver and the officer. [00:24:11] Speaker 00: And that's why I named him as Brandon. [00:24:13] Speaker 00: So I said, just call him Brandon. [00:24:15] Speaker 00: Brandon, he was calling out for Brandon to come and help. [00:24:19] Speaker 00: While the officer has trying to hold on to his gun. [00:24:24] Speaker 02: Was that before? [00:24:26] Speaker 02: the first shot fired by the officer? [00:24:28] Speaker 00: Yes, it was during the struggle when Officer Smith was trying to hold on to his own gun, keeping it in the holster, and holding Mr. Molina's hand with the gun in it, trying to prevent Mr. Molina from then pointing the muzzle of the weapon and shooting the officer a second time. [00:24:46] Speaker 00: And I will posit this to this court. [00:24:48] Speaker 00: Having read all of this court's opinions in deadly force cases, there is no case [00:24:55] Speaker 00: that this court has decided where there is no more compelling set of facts. [00:24:59] Speaker 00: And what do I mean by that very bluntly? [00:25:01] Speaker 00: There is no case in which the violence delivered against this officer was as life-threatening and as savage as what you see in this case. [00:25:12] Speaker 00: So much like the agent in Thomas v. Durastanti, you had an officer who was faced with this overwhelming situation [00:25:24] Speaker 00: which would disorient any one of us. [00:25:28] Speaker 00: And so being able to assess, did my one round not only strike, but did it incapacitate? [00:25:36] Speaker 00: While trying to clear a malfunction and moving into a position where he had cover and concealment, that's asking an awful lot of an objectively well-trained officer to sit and wait. [00:25:51] Speaker 00: Because in asking an officer to wait [00:25:54] Speaker 00: sit and assess, you're asking the officer to stay in the line of fire, to essentially expose himself to being shot a second time. [00:26:04] Speaker 00: In this case, we know the manifest intentions of Mr. Molina. [00:26:08] Speaker 00: He already showed it. [00:26:10] Speaker 00: He shot my client. [00:26:13] Speaker 00: Now, the estate would have you believe that it was an accidental discharge. [00:26:20] Speaker 00: But that runs counter to just simple common sense. [00:26:24] Speaker 00: An officer is struggling with a criminal suspect who's an absconder, who's headed back to prison. [00:26:29] Speaker 00: He said as much. [00:26:31] Speaker 00: And he feels and he hears the sound. [00:26:35] Speaker 00: He feels the searing pain. [00:26:37] Speaker 00: He thinks at first he was hit with his own taser and then he sees and he doesn't even understand how he got that way. [00:26:43] Speaker 00: He's holding Mr. Molina's hand with the gun in it. [00:26:48] Speaker 00: To think that the gun accidentally went off when the struggle began with the gun not being visible is asking this court to, well, accept the argument of an attorney as opposed to, you know, the facts being viewed in the light most favorable to the plaintiff. [00:27:08] Speaker 00: Now, another aspect of this case, and you had asked about the Francher case, [00:27:15] Speaker 00: The facts in this case are so much more compelling about the danger which Mr. Molina faced and the deputy faced in Fan Chair. [00:27:26] Speaker 00: We had a deputy in the Fan Chair case who saw his round cause the driver, the suspect, to slump. [00:27:36] Speaker 00: And then the vehicle in Fan Chair began to move in reverse and the deputy testified that he felt safer. [00:27:43] Speaker 00: And more importantly, as the court noted in fan chair, that when the vehicle was moving away, the officer noted that the suspect was not reaching for the guns that were in the front seat. [00:27:57] Speaker 00: So that officer had objective information upon which he could base his decision that the suspect was no longer a deadly threat and deadly force wasn't warranted. [00:28:07] Speaker 00: Here we have something much, much, much more ambiguous with the underlying compelling facts that I've described for you previously and the fact that for the officer in order to determine and put himself in a position where his safety, you know, was at least there was more safety behind the vehicle than there was next to the passenger seat [00:28:30] Speaker 00: The officer could not see. [00:28:33] Speaker 00: But fortunately, what we have in this case from my client is he did give a verbal command. [00:28:39] Speaker 00: And the words are, and again, I can't say them in this courtroom, but put your frickin' hands up. [00:28:45] Speaker 00: And of course, he used the different words in the word that I'm using. [00:28:48] Speaker 00: And that happened approximately two to three seconds before the first round of the seven-round ball, he was fired. [00:28:55] Speaker 01: Now, could he see? [00:28:57] Speaker 01: Just looking at the video, first of all, it's very narrow. [00:29:00] Speaker 01: rear view window. [00:29:01] Speaker 01: Yes. [00:29:02] Speaker 01: And on the video, which probably doesn't capture it exactly how it was if you're standing there, it's hard to tell if anything is in the car. [00:29:10] Speaker 01: If he raised his hands, would the officer have seen them? [00:29:14] Speaker 00: I would say no. [00:29:15] Speaker 00: The windows were tinted and then you have the officers take down lights as well as the headlights hitting a tinted window. [00:29:21] Speaker 00: It's black. [00:29:22] Speaker 00: And so I can say that, and also the video shows that. [00:29:29] Speaker 00: So is it conceivable that Mr. Molina raised his hands? [00:29:34] Speaker 00: It's conceivable. [00:29:35] Speaker 01: Well, when the foot comes out, might that have been his effort to try to raise his hands, to get out of the car and show his hands? [00:29:42] Speaker 01: Or is that stretching it? [00:29:48] Speaker 00: The way I would think about it, [00:29:50] Speaker 00: is that if Mr. Molina wanted to show his hands, we know he has had run-ins with the police. [00:29:57] Speaker 00: He was going back to prison. [00:29:59] Speaker 00: So it's not as if we had someone who had no understanding of how these things work in the real world. [00:30:06] Speaker 00: He could have put his hand or hands out of the vehicle. [00:30:10] Speaker 00: Instead, the leg came out. [00:30:13] Speaker 01: I don't know what his condition was, if he was capable of that, having been shot in the chest, maybe. [00:30:19] Speaker 00: If the officer knew, I would agree with you that the officer should have waited. [00:30:26] Speaker 00: But because the officer didn't know, and that's what's in the record, the officer did not know whether his round struck Mr. Molina, much less that he was incapacitated by the round. [00:30:39] Speaker 00: And then we have this whirlwind of bewildering, stressful facts that he was trying to contemplate with. [00:30:49] Speaker 00: He can make a mistaken decision. [00:30:52] Speaker 00: Maybe Mr. Molina did raise his hands. [00:30:55] Speaker 00: Maybe Mr. Molina did want to surrender. [00:30:59] Speaker 00: But as this court said in Wilson v. Meeks, you know, an officer can't read someone's mind or look into their heart to determine what their true intent is. [00:31:09] Speaker 00: All they can do is base their decision based on the objective facts that they know. [00:31:13] Speaker 01: What about counsel's statement, if I understood it correctly and if I didn't, I apologize. [00:31:19] Speaker 01: that the officer saw him in the car and continued to fire. [00:31:27] Speaker 01: What's the record show there? [00:31:28] Speaker 00: The way I would have this court address that is when you look at the video, that's not what happened. [00:31:37] Speaker 00: I don't know how else to say it. [00:31:41] Speaker 01: Where is he standing at the last gunshot? [00:31:46] Speaker 00: Imagine, if you would, that the rear view, that the back windshield of the vehicle is the podium. [00:31:53] Speaker 00: And what you have before you is an officer who shoots and he moves. [00:31:58] Speaker 00: But he stays behind the vehicle. [00:32:01] Speaker 00: He does not begin to then move back into. [00:32:04] Speaker 00: And again, again, that would be reckless. [00:32:07] Speaker 00: to move back into a line of fire and put himself in a position where Mr. Molina could just simply raise a hand with a gun in it and shoot him. [00:32:15] Speaker 01: Well, if he did, if he fired after seeing Mr. Molina splayed out or in whatever posture, would that be a Fourth Amendment violation? [00:32:25] Speaker 00: It would if only the video showed such events. [00:32:28] Speaker 02: So you're saying when [00:32:31] Speaker 02: Officer Smith, after firing the first shot through the back window, he didn't start walking around the vehicle and shooting as he did that. [00:32:40] Speaker 02: He just moved over to the side of the rear. [00:32:44] Speaker 02: But if the vehicle is pointing north, he wasn't moving north of the backside of the vehicle is what you're saying? [00:32:54] Speaker 00: Yes, I see that my time has ended. [00:32:55] Speaker 00: May I answer your question? [00:32:57] Speaker 00: He moves at best laterally. [00:32:59] Speaker 00: That is east. [00:33:00] Speaker 00: I mean, it would be from east to west. [00:33:04] Speaker 00: He does not move north. [00:33:05] Speaker 00: You know, he does not move north and compromise his safety. [00:33:11] Speaker 00: That's on the video. [00:33:12] Speaker 00: And that, I'm thankful that's what it shows. [00:33:16] Speaker 02: Thank you, counsel. [00:33:17] Speaker 00: Thank you. [00:33:22] Speaker 02: Thank you, counsel. [00:33:23] Speaker 02: Cases submitted. [00:33:25] Speaker 02: Counselor excused. [00:33:26] Speaker 02: We'll be in recess until 8.30 tomorrow morning. [00:33:29] Speaker 02: 9 tomorrow morning.