[00:00:02] Speaker 00: All right. [00:00:03] Speaker 00: The next case that we have for argument is a state of Richard Ward versus Lucero. [00:00:08] Speaker 00: It is Dock at 25-1224. [00:00:11] Speaker 00: Counsel, please proceed when you're ready. [00:00:14] Speaker 04: Good morning, Your Honor. [00:00:15] Speaker 04: So I've been instructed to begin my oral argument from here, if that's all right with you. [00:00:20] Speaker 00: Yes. [00:00:21] Speaker 04: May it please the Court, my name is Alex Pass, appearing today as counsel for defendants and defendants in this matter. [00:00:28] Speaker 04: Defendants are entitled to qualified immunity. [00:00:31] Speaker 04: The district court's order granting a part and denying a part under its motion for summary judgment failed to recognize and apply the unique but correct method of factual analysis relative to the defense of our community. [00:00:44] Speaker 03: Can I, I want to talk before we get to the merits about preservation. [00:00:49] Speaker 03: In your opening brief to this court, the entire argument was based on [00:00:57] Speaker 03: arguing that facts different than those that were found by the district court would have resulted in qualified immunity being proper. [00:01:09] Speaker 03: And of course, we don't have jurisdiction to consider facts other than those that were found by the district court. [00:01:16] Speaker 03: Then for the first time in your reply brief, you actually accept the facts that were found by the district court and make a different argument [00:01:26] Speaker 03: that is that even under those facts that you would prevail. [00:01:32] Speaker 03: Why isn't that waived? [00:01:34] Speaker 03: Why aren't you stuck with the argument that you made in your opening brief over which we lack jurisdiction? [00:01:41] Speaker 04: I think the argument is twofold. [00:01:43] Speaker 04: One, we do argue facts different than what the district court felt. [00:01:48] Speaker 04: I do believe that has to do so well with the argument we presented that the district court utilized [00:01:59] Speaker 04: to, we are willing to accept the facts as viewed in the light most favorable to plaintiff. [00:02:05] Speaker 04: However, we also may not even be agreed that those facts, I suppose, found by the district court, even though... Well, they were found. [00:02:14] Speaker 03: They weren't supposed found. [00:02:15] Speaker 03: They were found by the district court. [00:02:17] Speaker 04: The issue with the facts found by the district court is that they utilize the incorrect method of contextual analysis. [00:02:24] Speaker 04: and determine that they survive summary judgment due to genuine issues of material fact. [00:02:30] Speaker 04: Instead of utilizing the qualified immunity analysis, determine that the facts are sufficiently grounded in the record. [00:02:37] Speaker 04: So I would suppose that the argument is twofold. [00:02:41] Speaker 04: One, we aren't willing to accept those facts. [00:02:43] Speaker 03: But you weren't willing in your opening brief, which is why we have a waiver issue. [00:02:49] Speaker 03: You don't, as a general rule, get to change your argument in your reply brief. [00:02:55] Speaker 03: And so I'm troubled. [00:02:58] Speaker 03: First of all, I, you know, despite your argument that you're making a legal argument to challenge the facts found, I have some problems with that. [00:03:08] Speaker 03: But in your opening brief, you never take on the facts as found by the district court. [00:03:15] Speaker 03: You simply say, these are the facts the district court should have found and we win. [00:03:20] Speaker 03: And then in your reply brief, you say, [00:03:23] Speaker 03: Well, if we are stuck with the facts as found by the district court, we still win. [00:03:28] Speaker 03: I'm not sure you can do that. [00:03:31] Speaker 04: Your Honor, I believe we can if the facts are blatantly contradicted in the record. [00:03:34] Speaker 03: OK, and if they're not blatantly contradicted in the record, then you would admit we don't have jurisdiction. [00:03:42] Speaker 04: Your Honor, in my entire nation, I would not concede that we don't have jurisdiction. [00:03:46] Speaker 04: I believe if we are willing to concede the facts as presented in the appellee's brief written out by the district court, we're still entitled [00:03:57] Speaker 04: So, even if we don't present the facts that we believe are greatly contrary to the record, which would provide jurisdiction anyway, and we utilize the facts as the district court found out, despite the incorrect method of factual analysis, we are still entitled to qualify and read a government period as touchable, which was presented in the reply group in response to a clearance brief. [00:04:21] Speaker 02: Council, can you speak more to your [00:04:24] Speaker 02: argument that the district court didn't engage in the right method of factual analysis. [00:04:30] Speaker 04: Chair, under, I believe it's Thompson v. Salt Lake City, the concurrence is clear that it is improper to deny summary judgment predicated upon qualified immunity when the district court denies qualified immunity. [00:04:56] Speaker 04: The difference is that genuine issues of material fact are included in some of the charges. [00:05:03] Speaker 00: And we honor that, right? [00:05:05] Speaker 00: Absent you showing an exception, if a district court says, I find a genuine issue of material fact on X, Y, and Z, we accept that. [00:05:15] Speaker 04: Your Honor, I would disagree to the extent that denying qualified immunity on those bases is improper, as cited in the [00:05:27] Speaker 03: I'm not following you. [00:05:29] Speaker 03: Denying it on what basis? [00:05:31] Speaker 04: Denying qualified immunity due to the existence of genuine issues of material fact is improper. [00:05:39] Speaker 00: You mean if you challenge and defeat that there in fact is a genuine issue of material fact or not true? [00:05:47] Speaker 04: What the district court should have done is accepting the facts of the life most favorable to the plaintiffs, utilize those facts to create [00:05:57] Speaker 04: the worldview of facts that they can use to answer the issue of law, which is whether or not the deputies in this case were entitled to qualify. [00:06:07] Speaker 03: And that's what the court did here. [00:06:09] Speaker 03: The district court said, here are the facts that I find a reasonable jury could find. [00:06:19] Speaker 03: And based on those facts, taking it in the light most favorable of the plaintiff at this stage, I believe a reasonable jury could find a constitutional violation here, right? [00:06:33] Speaker 04: That's not my reading of the order. [00:06:35] Speaker 04: What the order says is a reasonable jury could find these facts based on material, genuine material disputed to these facts. [00:06:45] Speaker 03: Well, and that's correct, right? [00:06:49] Speaker 03: If there's a genuine issue of material fact at this stage, the district court has to resolve that in favor of the plaintiff. [00:06:57] Speaker 03: Would you agree with that? [00:07:04] Speaker 04: If those facts are sufficiently grounded in the record, then I would agree with that. [00:07:08] Speaker 02: I thought your argument, and maybe I misunderstood and you can help me understand it better. [00:07:13] Speaker 02: I thought your argument was that the district court just didn't apply the qualified immunity test and summary judgment standards correctly. [00:07:23] Speaker 02: That she did the analysis in the wrong order and improperly placed the burden on you. [00:07:29] Speaker 02: I thought that's what you were arguing as kind of the abstract question of law that we would have jurisdiction to review. [00:07:36] Speaker 04: In part, that is correct. [00:07:38] Speaker 04: essentially we moved through summary judgment based on the traditional summary judgment standard and pursuant to quality of immunity because some plaintiffs' claims were not subject to quality of immunity so we couldn't believe in quality of immunity and that's why those issues are not being appealed because we're not subject to interlocutory appeal at this time. [00:07:59] Speaker 04: So that is essentially only conducted a singular [00:08:15] Speaker 04: All of that immunity analysis, if I recall correctly, is less than half a page. [00:08:19] Speaker 04: She doesn't discuss the facts. [00:08:21] Speaker 04: She determined that the laws were clearly established utilizing two cases that both post-dated by two and a half or more years, the conduct that occurred in this case. [00:08:34] Speaker 03: But both of those cases, although the decision itself post-dated, the cases that they relied on to say that it was clearly established [00:08:45] Speaker 03: were all before this incident, isn't that correct? [00:08:48] Speaker 04: From 1989 to 2015, that's absolutely correct. [00:08:51] Speaker 04: Except Finch, the case that's cited within the case relied upon, was not published until July 5th, 2022. [00:09:02] Speaker 04: So that also posted a conflict in this case. [00:09:04] Speaker 04: And looking at those case with the Zuckel, the Spinhardy, Orum, and the other cases, none of those cases [00:09:20] Speaker 04: unconstitutional. [00:09:21] Speaker 00: Well, it all depends on the facts, right? [00:09:23] Speaker 00: I mean, if you give the plaintiff all the facts, then it's pretty horrific and there are going to be some cases there that are going to say pretty horrific is clearly established. [00:09:35] Speaker 00: Can you help me with this? [00:09:37] Speaker 00: When you say the court erred with in its determinations of a genuine issue of material fact, be concrete. [00:09:46] Speaker 00: Tell me what the district court found that the district court could not find, or how the district court attributed facts against your clients that the district court legally could not do. [00:09:59] Speaker 00: Be specific. [00:10:01] Speaker 04: As to which facts, though? [00:10:03] Speaker 03: That's the question. [00:10:06] Speaker 00: Do you have any? [00:10:07] Speaker 00: And if you don't, that's okay. [00:10:08] Speaker 00: We can move on. [00:10:09] Speaker 00: But that's what I'm curious to know the answer to. [00:10:12] Speaker 04: As to which facts? [00:10:13] Speaker 00: Which facts are you challenging that the District Court found could be found by a jury? [00:10:18] Speaker 00: The District Court didn't find the facts. [00:10:20] Speaker 00: The District Court said, based on everything that I've seen and has been presented to me, I would sustain a jury verdict against your clients because the jury could find facts XYZ. [00:10:33] Speaker 00: And so I assume you're in here today challenging facts XYZ. [00:10:38] Speaker 00: Your Honor, I am challenging facts XYZ. [00:10:40] Speaker 00: What are they? [00:10:41] Speaker 04: And I think it depends on if we're talking about whether or not the facts were blatantly contradicted by the record, or whether the facts that she found a reasonable jury can find based on material factual disputes. [00:10:54] Speaker 04: One of the ones based on material factual disputes was whether or not Mr. Moore, the plaintiff, tackled the deputy, whether he head-butted the deputy, is both what he was doing at the time immediately preceding the officer-in-law shooting. [00:11:10] Speaker 00: And we do see something on the video that doesn't seem helpful to you, which is, as the officer gets off of him, Mr. Ward, right before the shooting, his right arm is pinned against the officer, and at the end of the shooting, as the officer gets back, his left hand is resting behind his head, which would suggest, doesn't compel a finding, [00:11:37] Speaker 00: But there's enough there to say a genuine issue of material fact that he wouldn't have been going for the gun at that point. [00:11:42] Speaker 00: Nobody's saying that the jury's commanded to determine something, just that there's enough there that a jury could attribute that, look at that and say, mm-hmm, here's what we think that means. [00:11:57] Speaker 04: Your Honor, I do understand that contention. [00:12:04] Speaker 04: also provide that the mere analysis that she undertook is legal error. [00:12:11] Speaker 04: I have approximately three minutes. [00:12:12] Speaker 04: I can make one point to Judge McHugh. [00:12:17] Speaker 04: We were discussing whether or not laws were clearly established despite Finch being published subsequently, which is the historical analysis. [00:12:28] Speaker 04: None of the cases cited in Finch were any of the suspects or individuals [00:12:35] Speaker 04: At least none of them were physically engaged with the officers at the time of the shooting. [00:12:41] Speaker 04: All of them approximately were at least five to seven feet away. [00:12:45] Speaker 04: So none of them were, the plaintiff concedes that he was engaged for nearly half a minute in a wrestling match with the officer at a school as children were being released from school. [00:12:58] Speaker 04: So none of those cases fit the circumstances here. [00:13:01] Speaker 04: And with that, with two minutes left, I'd like to reserve my time. [00:13:05] Speaker 00: Very well. [00:13:10] Speaker 01: Thank you, Your Honor. [00:13:11] Speaker 01: May it please the court and counsel. [00:13:14] Speaker 01: I'm Daryl Kilmer of Kilmer Lane, and along with my partner Reid Allison, and with Marty Newman, we represent the estate of Richard Ward and his mother, Christy Ward, who has her own case going on too. [00:13:27] Speaker 01: And she's also the PR. [00:13:28] Speaker 01: She's with us in court today too. [00:13:31] Speaker 01: Those of us who have been doing this type of work for a long time have definitely detected a trend that has turned into basic common script for defense attorneys in these cases of Section 1983. [00:13:45] Speaker 01: No matter how horrific the facts are and no matter how [00:13:50] Speaker 01: Almost indefensible what happened is they know that they can have several tactical advantages by merely uttering the phrase qualified immunity in briefing, even if they don't believe it will be granted. [00:14:05] Speaker 01: And if it's not granted, then New York reactively appealing to the 10th Circuit Court of Appeals and claiming that they have a right to an interlocutory [00:14:14] Speaker 02: But we're not here to assess the practices of the defense bar. [00:14:17] Speaker 02: So in this case, can you speak to why we should conclude that the district court found facts? [00:14:24] Speaker 02: I mean, she doesn't have a section that's titled factual findings, and the order of operations in her analysis, the way that she assesses qualified immunity at summary judgment seems kind of backwards. [00:14:39] Speaker 02: So can you help us understand based on this order why it's affirmable? [00:14:44] Speaker 01: Sure. [00:14:44] Speaker 01: Admittedly, there's not a section as to why I find the following facts, but it's clear in reading the order that it's strewn throughout. [00:14:52] Speaker 01: And she says multiple times that based upon these facts, which are admittedly contradicted in some ways, there's material issues of disputed fact, [00:15:04] Speaker 01: But if you accept that, which is typically grounds to deny a summary judgment motion, except when qualified immunity is in play, you have to take the next step. [00:15:14] Speaker 01: If there's material issues of dispute and facts, the district court and the court of appeals are required to accept [00:15:20] Speaker 01: that set of facts most favorable to the plaintiff that is tolerated by the record. [00:15:25] Speaker 01: And she did this throughout her opinion saying, yes, the video is a good example. [00:15:30] Speaker 01: The video, I think, very well supports our cause, including the detail that Judge Phillips just pointed out. [00:15:38] Speaker 01: We concede the point that a jury might look at that and think that Mr. Ward did something wrong, and I don't know that they'll conclude that he had it coming to him, but that they would read it differently than we do. [00:15:48] Speaker 01: That means it's a material issue of disputed fact. [00:15:51] Speaker 01: But properly taking those facts in a light most favorable to Mr. Ward, a jury could very well find that this was excessive force under the circumstances. [00:16:01] Speaker 01: And Judge Swede, [00:16:03] Speaker 01: carefully undertook the Graham versus Connor factors about what type of force would be proportional under these types of circumstances. [00:16:11] Speaker 01: And at each juncture said, this is disputed. [00:16:15] Speaker 01: But a jury could find based on these disputes in favor of the plaintiff on that. [00:16:20] Speaker 01: And what Defense has argued in this case, and it was hard for me to get my brain around it for the longest time, as if there's some sort of mysterious alchemy involved in this second part of this analysis [00:16:32] Speaker 01: that Judge Sweeney did engage in robustly. [00:16:35] Speaker 01: But the defense seems to say that she was satisfied by simply announcing that there are disputed issues of fact and then leaving it there. [00:16:44] Speaker 01: But that's not what she did. [00:16:46] Speaker 01: She announced that there are disputed issues of fact and properly then moved on to say, if you looked at them, as I have to, in a light most favorable to the plaintiff, a jury could find that this was [00:16:59] Speaker 01: You know, the first factor in Graham that this was not a serious crime that was being investigated. [00:17:04] Speaker 01: The second factor, was there a threat to the officer in his mind there? [00:17:09] Speaker 01: That could go either way, and we concede it could go either way. [00:17:13] Speaker 01: A jury might think that this officer was head-butted. [00:17:16] Speaker 01: It's not shown by the video, though. [00:17:18] Speaker 01: And the fact that it's not shown by the video is evidence that tends to favor the plaintiff, too. [00:17:23] Speaker 01: None of this compels a jury result in favor of the plaintiff, but it certainly allows it. [00:17:29] Speaker 02: So is it your position that we don't have jurisdiction over anything in this appeal? [00:17:37] Speaker 01: I would kind of like the opinion that you write to say that this is clearly established. [00:17:41] Speaker 01: It's not a big reach. [00:17:42] Speaker 01: I think it is clearly established. [00:17:44] Speaker 03: Well, we certainly have jurisdiction over that, right? [00:17:46] Speaker 01: That's right. [00:17:47] Speaker 01: And that's an answer to Judge Rossman's question. [00:17:49] Speaker 01: I think you can answer that question because that is one of these large questions of law that are proper grounds for an interlocutory appeal. [00:17:57] Speaker 03: Well, if Judge Rossman has done her line, we don't have any cases either from the Supreme Court or this circuit [00:18:06] Speaker 03: where someone is literally wrestling with a police officer and it ends up being a deadly force case. [00:18:17] Speaker 03: Does that matter in terms of whether the law here is clearly established? [00:18:22] Speaker 01: It doesn't in this case and the reason is [00:18:25] Speaker 01: The cases that this court has grappled with and found that there is no qualified immunity, the level of threat, which is the most important of the grand factors in determining the proportionality of the force used, these people had knives, sometimes guns, sometimes the officer said they thought they had a gun or something like that. [00:18:43] Speaker 01: All of these were higher levels of threat than Richard Ward had presented. [00:18:49] Speaker 01: In fact, Richard Ward had been basically self-searching himself while sitting in the car. [00:18:54] Speaker 01: And the officer had found out he does not, in fact, have a gun. [00:18:58] Speaker 01: There's no good reason to believe he has a gun. [00:19:01] Speaker 01: And the only thing the officer has then is while we're wrestling around, this guy might go for my gun. [00:19:07] Speaker 01: And he now has sort of doubled and tripled down saying, he did go for my gun. [00:19:12] Speaker 01: The problem is that's disputed and he killed the wet witness that would best be able to dispute it. [00:19:18] Speaker 03: What about the removal from the car? [00:19:22] Speaker 03: Is that part of our focus on whether that itself was excessive force that started the whole thing literally rolling? [00:19:30] Speaker 03: You know, we have some cases that say if the officer [00:19:37] Speaker 03: actually recklessly created. [00:19:40] Speaker 03: Now, I have some questions based on Supreme Court decisions, whether the Supreme Court agrees with us on that. [00:19:50] Speaker 01: Well, most recently in Barnes v. Felix, the Supreme Court seemed to agree with the Tenth Circuit. [00:19:55] Speaker 01: And I got to say the 10th Circuit had the best body of law in the nation on the reckless conduct creating the need to use increased levels of force. [00:20:06] Speaker 01: But this court's opinions in Sevier versus Lawrence, in Allen versus Muskogee, in Sabios versus Husk, all of those stand for the proposition that to answer your question directly Judge McHugh, absolutely you should look at the yanking him out of the car. [00:20:22] Speaker 01: The fellow ate a pill, an anxiety pill, and that, for whatever reason, set McWhorter off. [00:20:28] Speaker 01: And he just said, and this is a key piece of evidence. [00:20:31] Speaker 01: It's not like he thought he was going for a gun or something. [00:20:34] Speaker 01: He yelled out, what did you just put in your mouth? [00:20:36] Speaker 01: And Richard said, a pill. [00:20:37] Speaker 03: Well, I think their argument is that he might have been trying to hide evidence. [00:20:43] Speaker 01: A pill? [00:20:44] Speaker 03: Well, it could have been an illegal drug, right? [00:20:47] Speaker 03: I suppose it wasn't. [00:20:50] Speaker 01: I mean, it was an actual prescribed anti-anxiety pill. [00:20:53] Speaker 03: Well, you can't look with 2020 hindsight, right? [00:20:55] Speaker 03: I mean, it's what the officer in that moment [00:20:59] Speaker 03: thought when he grabs something out of his pocket and pops it in his mouth. [00:21:04] Speaker 03: Fair. [00:21:05] Speaker 03: I mean, we certainly have cases where people quickly swallow quantities of drugs. [00:21:10] Speaker 01: Yes, of illegal drugs. [00:21:11] Speaker 01: I can understand that might concern an officer. [00:21:14] Speaker 01: It certainly doesn't rise to the level of probable cause, and it certainly doesn't rise to the level of a serious enough crime to go hands-on. [00:21:21] Speaker 01: And you saw the video. [00:21:23] Speaker 01: He goes hands-on and pulls him out, and he's right on top of him. [00:21:26] Speaker 01: And his colleague, Officer Gonzalez, is standing right there, too. [00:21:31] Speaker 01: And Richard is fairly described as kind of shocked that this is all going on. [00:21:36] Speaker 00: There's more to the story, though, there. [00:21:38] Speaker 00: The officer says in the video confirms that he's upset that he's put something in his mouth. [00:21:45] Speaker 00: The officer is, what did you put in? [00:21:47] Speaker 00: And then he reaches for a pocket in his coat. [00:21:51] Speaker 00: And the officer now claims that he was concerned about a weapon, right? [00:21:55] Speaker 01: The officer does claim that and for purposes of this appeal, you know, the jury's going to weigh whether he thinks that was a weapon. [00:22:02] Speaker 01: That's a very convenient, but he is contemporaneously, as he's dragging him out of the car, he didn't say, are you going for a gun? [00:22:11] Speaker 01: or something like that. [00:22:12] Speaker 01: He says, what did you put in your mouth? [00:22:14] Speaker 01: And he's pulling him out. [00:22:15] Speaker 03: And he says, it's just a pill, right? [00:22:17] Speaker 01: It's just a pill. [00:22:18] Speaker 01: It's just a pill. [00:22:18] Speaker 01: He says it kind of desperately, which is true. [00:22:22] Speaker 01: I mean, the autopsy shows the drug was in his... And our evidence will show at trial that that was prescribed by his doctor who was coaching him through, you know, some addiction issues. [00:22:33] Speaker 00: Is there any basis to say that it's justified, the shooting was justified apart from [00:22:41] Speaker 00: the potential of Mr. Ward obtaining the firearm from the officer. [00:22:47] Speaker 01: There is no basis for the use of deadly force under the scrum. [00:22:53] Speaker 00: If they were scrambling for a loose holstered gun, then that would be a basis. [00:22:59] Speaker 01: Conceivably. [00:23:00] Speaker 01: That would definitely be fraught with disputed issues. [00:23:03] Speaker 00: And so what I thought you might say something about today is the holster lock. [00:23:08] Speaker 00: and the decision to take the firearm out of the holster. [00:23:11] Speaker 01: I'm glad you brought that up, Your Honor. [00:23:13] Speaker 01: We have, I think, the foremost expert in police practices who testified that there is, in fact, a holster lock and it renders [00:23:23] Speaker 01: extremely low credibility to the argument that McWhorter makes that I thought he was going to give my gun because those things do have a holster lock designed for that very purpose to stop somebody from getting a gun. [00:23:39] Speaker 01: know this, but our theory of the case is that McWhorter is making this up as a post hoc rationalization because there's no way to defend use of excessive force on an unarmed man under these circumstances. [00:23:51] Speaker 01: But if I could get the jury to believe he's thinking that he's probably not unarmed or he's trying to become armed, then I might have a fighting chance at this case. [00:24:01] Speaker 01: That all kind of comes up later. [00:24:05] Speaker 01: He'll lose it. [00:24:06] Speaker 01: I mean, a jury is entitled to accept it if they believe him, I suppose, but they're certainly entitled to reject it. [00:24:12] Speaker 00: It's all just a big, genuine issue of material facts. [00:24:15] Speaker 00: That's what it is. [00:24:16] Speaker 00: That's what it is. [00:24:17] Speaker 02: Council, further to Judge McHugh's question, what cases would we cite, in our opinion, to support the clearly established law, prong of the test? [00:24:26] Speaker 01: Of the shooting? [00:24:26] Speaker 01: Yes. [00:24:27] Speaker 01: Because there's also Christy Moore's case. [00:24:28] Speaker 02: Of the shooting, yeah. [00:24:29] Speaker 01: Yeah. [00:24:29] Speaker 01: I think the clearly established cases would be as [00:24:35] Speaker 01: as Judge Sweeney did, a State of Harmon versus Salt Lake County, Clerkly versus Holcomb, and Finch versus Rapp, but also long been held in the 10th Circuit that Zucco versus Spinharney, which was decided in 1989, talks about using deadly force on somebody that is unarmed or underarmed. [00:24:57] Speaker 01: Walker versus City of Orem is also a very important and clear case and that was decided in 2006. [00:25:05] Speaker 03: But none of those cases, you know, the argument earlier this morning is correct. [00:25:13] Speaker 03: These are not cases where they're rolling around on the ground fighting with an officer. [00:25:19] Speaker 03: They're cases where there's some distance and they're cases... Some of them are closed though. [00:25:25] Speaker 01: And this is hand-to-hand combat with an unarmed person? [00:25:29] Speaker 03: Well, and again, does the officer know he's unarmed? [00:25:33] Speaker 01: He said he had a pocket knife. [00:25:35] Speaker 01: He said he might have a pocket knife. [00:25:36] Speaker 01: It turns out he didn't. [00:25:37] Speaker 01: You know, the officer said, do you have any weapons? [00:25:39] Speaker 01: Because he's already asked him to look for them. [00:25:42] Speaker 03: But it turns out he didn't is irrelevant to us right now. [00:25:46] Speaker 01: Probably. [00:25:47] Speaker 03: But even if he had a... What did the officer know at the time? [00:25:51] Speaker 03: We don't get to say, [00:25:52] Speaker 03: Well, later when they searched him after he was dead, there was no pocketknife. [00:25:56] Speaker 01: This is what the officer knew. [00:25:57] Speaker 01: He certainly didn't know that he had a pocketknife because he didn't. [00:26:00] Speaker 01: But he knew that Richard had said, I might have a pocketknife as he's searching his pockets for the ID that was being demanded. [00:26:07] Speaker 01: Right. [00:26:09] Speaker 01: Right. [00:26:09] Speaker 01: I mean, and you might be right, a jury might, I don't know if it would be proper, but I can't stop them from speculating on whether this is an unarmed man or a man who's got a pocket knife. [00:26:20] Speaker 01: They would have to, in the middle of a scroll, take it out. [00:26:23] Speaker 03: Yeah, I'm focused on clearly established. [00:26:25] Speaker 03: I'm not focused on constitutional evaluation. [00:26:28] Speaker 03: And the question that Judge Rossman just asked you listed a bunch of cases, and you know, it's really, [00:26:34] Speaker 03: How particular do we need to be? [00:26:36] Speaker 03: The Supreme Court has told us that in the Fourth Amendment area, unlike some other areas, we have to be pretty specific. [00:26:45] Speaker 03: And so a general overarching rule that you can't shoot an unarmed person or a general rule that you can't use lethal force unless you are at risk, serious harm to yourself or someone else, are those good enough under [00:27:04] Speaker 03: the parameters that the Supreme Court has given us on clearly established law. [00:27:10] Speaker 01: I think they are. [00:27:11] Speaker 01: And the cases that this court has decided were closer cases than this one on that. [00:27:17] Speaker 01: And when it was decided by this court, it helps clearly establish that if you don't have qualified immunity and the man is wielding a knife five feet in front of you or a gun 20 feet back, then you wouldn't have qualified immunity here. [00:27:32] Speaker 01: The case that you authored recently [00:27:34] Speaker 01: Uh, is, you know, that was, it wasn't wrestling on the ground, but it was a, it was a, uh, prone position case. [00:27:41] Speaker 03: Well, they sat on him long enough to kill him. [00:27:43] Speaker 01: Yes, they did. [00:27:44] Speaker 01: Right. [00:27:45] Speaker 01: Exactly. [00:27:45] Speaker 01: But it was an unarmed defendant and the use of the prone restraint in that case turned out to be deadly force. [00:27:54] Speaker 01: And it, it helps. [00:27:55] Speaker 01: I'm not saying we're relying on that, but it is another example, uh, as well as the, the case that, um, [00:28:03] Speaker 01: Judge Phillips authored recently, Baca versus Cosper, which was just about four months ago in November of 2025. [00:28:09] Speaker 01: You know, these cases are among the, I think a substantial body of law that if an officer read them, you know, that's the fiction that we have on qualified immunity. [00:28:23] Speaker 01: If the officer had these cases in their knowledge, they would say, if I don't get qualified immunity under those, [00:28:29] Speaker 01: much more closer calls because there was a higher level of threat, which is the most important factor in the Graham versus Connor factors, then I certainly can't do this on this guy who I might fear. [00:28:42] Speaker 01: I'm not necessarily second guessing him. [00:28:44] Speaker 01: I might fear that he has a weapon, but there's no evidence of it, and there's no probable cause of it. [00:28:50] Speaker 01: And at its core, the Fourth Amendment is what prohibits excessive force. [00:28:55] Speaker 01: And at its core, it requires probable cause, not some sort of [00:28:59] Speaker 01: fear that something bad might happen. [00:29:02] Speaker 00: Council, you need to wrap it up your overtime. [00:29:06] Speaker 01: Okay, thank you. [00:29:07] Speaker 00: Okay, thank you. [00:29:08] Speaker 00: That's a quick wrap-up. [00:29:11] Speaker 00: I don't know that I've ever got a quick wrap-up like that. [00:29:14] Speaker 00: All right, Council, you have reserved time and you get an extra minute if you need it. [00:29:18] Speaker 00: So, please proceed. [00:29:20] Speaker 04: There are just a couple issues. [00:29:22] Speaker 04: First, I'd like to address the holster lock. [00:29:24] Speaker 04: The holster lock is not intended to be meant to hire [00:29:28] Speaker 04: It's to prevent the firearm from falling out while an officer is running, or perhaps wrestling with a suspect on the ground. [00:29:35] Speaker 04: Clearly, the holster lock didn't prevent a technique reporter from removing the firearm itself. [00:29:40] Speaker 04: So any inference that a suspect cannot remove a firearm from a political vlog poster is beyond the pale. [00:29:50] Speaker 00: Well, how does it work? [00:29:51] Speaker 00: The officer knows how to unlock it, obviously, but I wouldn't know. [00:29:56] Speaker 04: It's just a thumb switch, you know what I mean? [00:29:58] Speaker 04: Somebody pulls on it hard enough, the fire is coming out. [00:30:01] Speaker 04: It really is to prevent the fire from being removed while an officer's running, or filling out while an officer's running. [00:30:08] Speaker 04: Second, I would like to state that the level of generality that Plaintiffs' Council wants the court to rely on is even greater than that struck down rule in Exxon, Barcelona. [00:30:21] Speaker 04: In those cases, [00:30:23] Speaker 04: dealt with officers firing at either a moving vehicle or from a moving vehicle, and the Supreme Court or the Tensory clearly established that those cases required more specificity. [00:30:40] Speaker 04: In these cases, all of the cases presented by Plankett's and the District Court, all of the officers had an opportunity to try [00:30:50] Speaker 04: The officers were wrestling on the ground for nearly half a minute while the suspect didn't comply with compliance techniques that Officer Gonzalez was utilizing, was listening to no commands to stop, and it was instead yelling, yeah, boy, and come on, boy, as he followed the officers. [00:31:11] Speaker 03: You know, I can't hear that. [00:31:14] Speaker 04: Yeah, boy, and come on, boy. [00:31:16] Speaker 04: It is an undisputed fact. [00:31:20] Speaker 04: There was no dispute in the record. [00:31:22] Speaker 04: We'll look at that. [00:31:23] Speaker 03: Yeah, we'll look at that. [00:31:25] Speaker 04: I believe there was at one point an enhanced version of the audio, but it is undisputed. [00:31:34] Speaker 04: And second of all, it's undisputed that Officer McWhorter was injured during the struggle. [00:31:41] Speaker 04: Where the dispute comes in is whether or not that injury was the result of a headhunt. [00:31:47] Speaker 00: You're talking about the bloody lip. [00:31:49] Speaker 04: But broken notes. [00:31:51] Speaker 00: Oh, he got a broken note. [00:31:53] Speaker 00: Yeah. [00:31:57] Speaker 00: All right. [00:31:57] Speaker 00: Is that it, counsel? [00:32:00] Speaker 04: I guess one, in my last 20 seconds, I would argue that any inference that Muskogee is similar in this case is incorrect. [00:32:11] Speaker 04: In this case, they were interviewing a suspect who turned away from the officers [00:32:16] Speaker 04: swallowed what was believed to be contraband to destroy the evidence and reached into his jacket pocket, creating an exigency that caused the officers to remove the vehicle that is so dissimilar to us to be that I don't think that's true. [00:32:31] Speaker ?: Okay. [00:32:31] Speaker 00: Thank you, counsel, for your arguments. [00:32:33] Speaker 00: The case is submitted and you're excused.