[00:00:00] Speaker 03:
Next, we will hear a state of Wilford-DeWeese versus Hancock, number 251161.

[00:00:05] Speaker 03:
Mr. Bryant, you may proceed.

[00:00:18] Speaker 02:
May it please the court?

[00:00:20] Speaker 02:
My name is Raymond Bryant, and I represent the plaintiff and the appellant in this case, the state of Wilford-DeWeese.

[00:00:27] Speaker 02:
On 12b6 review, the district court below granted the officers qualified immunity for the intermediate and the deadly force used against Mr. Deweese, which ultimately created domino effect that killed him.

[00:00:39] Speaker 02:
On de novo review today, we ask this court to reverse that qualified immunity decision because clearly established law strongly supports at least two main theories of excessive force under the circumstances.

[00:00:53] Speaker 02:
Number one, the K-9 deployment violated clearly established law

[00:00:57] Speaker 02:
is at the time the officers ordered the canine to attack, they lacked any substantial justification under the second two gram factors.

[00:01:05] Speaker 02:
Number two, the canine police rush independently violated clearly established law because the overwhelming force onslaught recklessly created the officer's own purported need to use deadly force under the circumstances.

[00:01:20] Speaker 02:
That's that domino effect that led to catastrophe in this case.

[00:01:26] Speaker 02:
On the canine deployment,

[00:01:27] Speaker 03:
In a way, counsel, the claims kind of go together, don't they?

[00:01:33] Speaker 03:
This risk creation argument you're making was the release of the dog.

[00:01:40] Speaker 02:
Well, yes, Your Honor.

[00:01:40] Speaker 02:
It was actually the total force rush, though.

[00:01:44] Speaker 02:
The case law on reckless... Well, all right.

[00:01:46] Speaker 03:
They approached him.

[00:01:48] Speaker 03:
But when it comes right down to it, isn't the release of the dog your prime argument for risk creation?

[00:01:55] Speaker 02:
I think that's the first argument, Your Honor, but not the only argument.

[00:01:57] Speaker 03:
I didn't say that.

[00:01:58] Speaker 03:
Isn't it your main argument?

[00:02:00] Speaker 03:
It is the main argument, Your Honor.

[00:02:01] Speaker 03:
All right.

[00:02:02] Speaker 03:
Thank you.

[00:02:02] Speaker 03:
And before releasing the dog, why wasn't it reasonable for the officers to consider Mr. DeWiese a threat, given that they knew he displayed a gun at a bar, said he would shoot the dog, and although maybe there were some mixed messages, wasn't exactly complying with police commands?

[00:02:22] Speaker 02:
Well, Your Honor, I think that Mr. DeWeese was compliant with a number of commands.

[00:02:25] Speaker 03:
But he wasn't complying with the command to approach the police.

[00:02:35] Speaker 03:
He was keeping his distance.

[00:02:37] Speaker 03:
And you're really not addressing the question as a whole, which is, why wasn't it reasonable for the police to consider him a threat, given the combination of circumstances they were facing before they released the dog?

[00:02:52] Speaker 02:
Mr. DeWeese never displayed a firearm.

[00:02:54] Speaker 03:
But they knew he had in an altercation.

[00:02:57] Speaker 03:
But, Your Honor, he... Why isn't that a problem?

[00:02:59] Speaker 03:
I mean, that's why they're there.

[00:03:01] Speaker 03:
They were called in because he was in an altercation and he had a gun.

[00:03:06] Speaker 02:
Yes, Your Honor.

[00:03:06] Speaker 02:
He was pushed to the ground.

[00:03:07] Speaker 02:
He was assaulted at the bar.

[00:03:09] Speaker 02:
Did they know that?

[00:03:09] Speaker 02:
Yes, Your Honor.

[00:03:11] Speaker 02:
Officer LeBaron was dispatched to the scene.

[00:03:12] Speaker 03:
But they knew he had a gun.

[00:03:14] Speaker 03:
And when the police respond to a situation where the suspect has a gun,

[00:03:19] Speaker 03:
Wouldn't they be on guard for potential threat under those circumstances?

[00:03:24] Speaker 02:
Absolutely, Your Honor.

[00:03:25] Speaker 02:
Being on guard is very different than using force, affirmative force, to assault that person.

[00:03:29] Speaker 03:
But it was more than just that he had the gun.

[00:03:31] Speaker 03:
He wasn't complying with what the police were asking him to do.

[00:03:35] Speaker 02:
Well, Your Honor, the only thing he did not comply with is the request to... Was Andy threatened to shoot the dog?

[00:03:40] Speaker 02:
Your Honor, he only threatened to shoot the dog long after almost 20 minutes had passed.

[00:03:43] Speaker 03:
Yeah, but shooting the dog means pulling out a gun and having a gun in police and public presence.

[00:03:49] Speaker 03:
I'm just saying, why couldn't it be reasonable for them to consider him a threat?

[00:03:54] Speaker 03:
You can argue that their response to that threat was excessive, but to dismiss completely that they had a reasonable basis to think as a threat doesn't seem to square with the facts they had in front of them.

[00:04:08] Speaker 02:
Your Honor, a possible threat is very different from an imminent threat.

[00:04:10] Speaker 03:
No, not a possible threat, a threat.

[00:04:13] Speaker 02:
Your Honor, Mr. DeWeese never threatened any officer.

[00:04:15] Speaker 02:
He did not verbally threaten.

[00:04:17] Speaker 03:
I understand your argument, counsel, but those were the facts that the police were confronting.

[00:04:22] Speaker 03:
And it seems like you're denying them completely as being relevant to whether he posed a threat.

[00:04:27] Speaker 02:
No, Your Honor, I'm not denying them.

[00:04:28] Speaker 02:
All right.

[00:04:28] Speaker 03:
Why don't you go on?

[00:04:30] Speaker 03:
I think I understand your point.

[00:04:32] Speaker 03:
I think you understand my question.

[00:04:34] Speaker 02:
Your Honor, for 20 minutes, Mr. Deweese remained still in stasis.

[00:04:38] Speaker 02:
He didn't threaten anybody.

[00:04:39] Speaker 02:
He didn't flee arrest.

[00:04:41] Speaker 02:
He remained static.

[00:04:42] Speaker 02:
He awaited for the officers to do whatever they were going to do.

[00:04:45] Speaker 02:
He tried to explain himself.

[00:04:47] Speaker 02:
He tried to call a lawyer for advice.

[00:04:48] Speaker 02:
He is not an aggressive person.

[00:04:51] Speaker 02:
He never made any hostile motions.

[00:04:53] Speaker 02:
And as this court in Rosales pointed out, there's a fundamental distinction between mere possession of a weapon and making hostile motions.

[00:04:59] Speaker 02:
It wasn't just possession.

[00:05:01] Speaker 02:
He displayed the weapon at the bar.

[00:05:03] Speaker 02:
Yes, he did, Your Honor.

[00:05:04] Speaker 02:
And he threatened to use it against the dog.

[00:05:06] Speaker 02:
All in self-defense.

[00:05:06] Speaker 03:
It wasn't just that he had a weapon.

[00:05:08] Speaker 02:
Your Honor, as this court found in Ortega v. Grisham just last year, the state's not permitted to view somebody exercising their Second Amendment rights with suspicion automatically.

[00:05:18] Speaker 02:
Mr. DeWeese only possessed his weapon and displayed it.

[00:05:21] Speaker 02:
in self-defense.

[00:05:22] Speaker 03:
Threatening to shoot the dog, is there a Second Amendment right to shoot the dog?

[00:05:27] Speaker 02:
Absolutely, Your Honor.

[00:05:28] Speaker 02:
If that dog is lunging to bite you.

[00:05:30] Speaker 02:
Is there a Second Amendment right to threaten to shoot the dog?

[00:05:34] Speaker 02:
It's a conditional warning of self-defense, Your Honor.

[00:05:36] Speaker 03:
That's an interesting theory of the Second Amendment Council.

[00:05:39] Speaker 03:
You got any authority for that?

[00:05:41] Speaker 02:
Well, Your Honor, the Second Amendment has not come up in the intersection of the Fourth Amendment very often.

[00:05:46] Speaker 02:
However, it's inevitable since the Heller case was decided in 2008.

[00:05:49] Speaker 02:
which finally decided that each individual has an individual right to keep and bear arms.

[00:05:54] Speaker 02:
Follow that up with the Bruin decision, Your Honor, where every individual has a right to not only have a firearm, but use and display it for self-defense purposes.

[00:06:04] Speaker 01:
Let me ask you this.

[00:06:05] Speaker 01:
So just since we're talking about it, just because I have a Second Amendment right to have a firearm doesn't mean that it shouldn't be considered threatening by police if they're in an encounter with me, does it?

[00:06:20] Speaker 02:
No, Your Honor.

[00:06:21] Speaker 02:
But again, mere possession is different.

[00:06:22] Speaker 01:
No, I understand.

[00:06:23] Speaker 01:
But it's definitely something they need to consider when they're interacting with someone.

[00:06:30] Speaker 01:
The police need to... If I don't have a gun, I may be someone they can interact with a lot different than if I do.

[00:06:39] Speaker 01:
You're right, Your Honor.

[00:06:40] Speaker 01:
Okay.

[00:06:41] Speaker 01:
And to Judge Matheson's point, if I just have a gun and nobody thinks I've ever

[00:06:45] Speaker 01:
pulled it out of my pocket to do anything with it, that might be different than if I'm a police officer and I've been notified that my suspect has pulled the gun on somebody.

[00:06:58] Speaker 01:
Yes, that's fair, Your Honor.

[00:06:59] Speaker 01:
Okay, so in the totality, I mean, those are worthwhile things for them to be thinking about.

[00:07:04] Speaker 02:
Absolutely, Your Honor, but the context matters, right?

[00:07:06] Speaker 02:
Did Mr. Dewees aggress upon another first person in a menacing manner?

[00:07:11] Speaker 02:
That's not the situation here.

[00:07:13] Speaker 02:
And when the officers went to the scene, they would have found that out by talking to witnesses at the bar, that he was pushed down to the ground.

[00:07:18] Speaker 02:
He's in a foreign place, Your Honor.

[00:07:20] Speaker 02:
He's an older man at 67 years old.

[00:07:23] Speaker 02:
He brought that gun as it concealed Kerry Holder to defend himself.

[00:07:27] Speaker 02:
He did not pull it out to harm anyone.

[00:07:29] Speaker 02:
He only tried to pull it out and actually stuck on his pants, Your Honor.

[00:07:33] Speaker 02:
So we're not talking about a person who even pointed a gun at any other person.

[00:07:37] Speaker 02:
So we're completely talking about a self-defensive situation, both at the bar

[00:07:40] Speaker 02:
and on the scene.

[00:07:41] Speaker 01:
Well, let me ask you about the canine deployment.

[00:07:45] Speaker 01:
I mean, two things seem important with canine deployments.

[00:07:48] Speaker 01:
Adequate warning and a peaceful surrender opportunity.

[00:07:52] Speaker 01:
And they've been asking him to surrender for a while.

[00:07:55] Speaker 01:
They wanted him to come over to them in a way where they could keep tabs on him, where he couldn't be a threat to them, and he didn't comply.

[00:08:06] Speaker 01:
And they told him, if you don't come over here,

[00:08:09] Speaker 01:
We're going to turn the dog loose on you, and he's going to bite you.

[00:08:13] Speaker 02:
Yes, Your Honor.

[00:08:14] Speaker 01:
I mean, that seems like a reasonable... I mean, that's what they're supposed to do before they turn a canine loose on someone.

[00:08:20] Speaker 02:
Well, yes, Your Honor, before they turn a canine loose with justification.

[00:08:24] Speaker 02:
But of course, as this court announced in Luthy v. Kyle, an officer does not have justification to deploy a canine.

[00:08:30] Speaker 02:
if there's no elements on the second or third gram factor, if there's no immediate threat at the time the canine is deployed, or if that person is not fleeing or resisting at the time.

[00:08:39] Speaker 01:
If you're an officer, do you think it's weird that you've been talking to a guy for 20 minutes and he still won't come over to you, still won't engage?

[00:08:54] Speaker 02:
Yes, I think that could be curious, Your Honor.

[00:08:57] Speaker 02:
But this is, again, as a 67-year-old man who had been to several bars,

[00:09:00] Speaker 02:
There's a good chance he may have been intoxicated, but he was certainly terrified of those officers pointing guns at him and of the barking, aggressive-looking canine, Your Honor.

[00:09:10] Speaker 01:
This court has excused the passive... That may be true, but it makes it a lot different than the... Luthy case?

[00:09:18] Speaker 01:
Yes, Luthy.

[00:09:19] Speaker 01:
I mean, that case, they really didn't even know what was going on.

[00:09:22] Speaker 01:
They just walked up to the window and turned the dog loose inside.

[00:09:26] Speaker 01:
This case, they knew the guy.

[00:09:28] Speaker 01:
They'd been dealing with him for 20 minutes.

[00:09:30] Speaker 01:
They were trying to get a handle on the situation.

[00:09:36] Speaker 02:
The bottom line is Mr. DeWeese was afraid, Your Honor.

[00:09:39] Speaker 02:
He was afraid of a firing squad of officers pointing guns at him in a foreign place.

[00:09:43] Speaker 02:
He was afraid he didn't know these police officers.

[00:09:46] Speaker 02:
He was afraid of that barking dog that stopped anybody from communicating for the last seven minutes of the encounter.

[00:09:51] Speaker 02:
As a person who had been trained in firearm use as a licensed gun holder was, he knew that the safest, most prudent play

[00:09:59] Speaker 02:
was to do nothing and to remain still.

[00:10:01] Speaker 02:
That way, walking towards the officers or any other movements he might make could not be misconstrued as furtive movements.

[00:10:08] Speaker 02:
And that's what he did, Your Honor.

[00:10:09] Speaker 02:
The fear-driven passive failure to comply with the command has been forgiven in numerous cases, for example, in Davis v. Clifford, Your Honor, and also Buck v. City of Albuquerque, Your Honor.

[00:10:21] Speaker 02:
Those are situations where officers are demanding compliance, and those people are not complying.

[00:10:26] Speaker 02:
They're passively failing to comply.

[00:10:28] Speaker 02:
They're not refusing.

[00:10:29] Speaker 02:
They're not obstructing.

[00:10:31] Speaker 02:
They're simply not fully complying.

[00:10:33] Speaker 02:
And that's the situation here you're on.

[00:10:34] Speaker 02:
He was afraid.

[00:10:36] Speaker 03:
How does Luke G. and Beth, I think those are two of your clearly established law cases, I'm just not seeing how they help you that much.

[00:10:49] Speaker 03:
Luke G., the person was in bed, and the other one in bed,

[00:10:55] Speaker 03:
the person was subdued, this is a really different situation than those cases.

[00:11:00] Speaker 02:
It's not materially different, Your Honor, because the key question is whether the officers had information on immediate threat at the moment of deployment and whether they are facing somebody who's fleeing or resisting.

[00:11:10] Speaker 02:
There's no flight or resistance at the time of the deployment.

[00:11:12] Speaker 03:
I understand your argument, and I guess that's really the question.

[00:11:15] Speaker 03:
And Your Honor, you were on the... Are they materially or are they not materially?

[00:11:18] Speaker 03:
And yes, I know, I've been on a panel.

[00:11:21] Speaker 03:
But let's go to the deadly force claim.

[00:11:24] Speaker 03:
Once Mr. DeWeese pointed the gun to shoot at the police dog, and I understand he was pointing at the dog, not at the police.

[00:11:33] Speaker 03:
But why wasn't that a threat to the police and the public at that point?

[00:11:39] Speaker 02:
Your Honor, I am very well aware that this circuit has given considerable deference to police officers in sudden emergency situations.

[00:11:46] Speaker 02:
But this was not one.

[00:11:48] Speaker 02:
And I asked this court to look at this case differently.

[00:11:50] Speaker 02:
Because the officers had the advance notice, the advance warning,

[00:11:54] Speaker 02:
that this person did have a weapon, but didn't pull it out for 20 minutes, didn't threaten anybody, but then told them, if the dog is sent to attack, I'm going to defend myself.

[00:12:03] Speaker 02:
This is someone in fear.

[00:12:05] Speaker 02:
This is someone who is merely trying to defend themselves.

[00:12:08] Speaker 02:
This is not someone who's hostile.

[00:12:10] Speaker 02:
This is not someone who's making any motions that are hostile.

[00:12:13] Speaker 03:
OK, but I'm not sure you're directly answering the question.

[00:12:18] Speaker 03:
Accepting all of that, you've still got someone who has a gun out, is pointing it, and starts shooting.

[00:12:23] Speaker 03:
Why doesn't that pose a danger to just about everyone there?

[00:12:27] Speaker 02:
I mean, aside from the fact that he had given the warning and acted completely consistent with this warning.

[00:12:32] Speaker 03:
We went through all that, but you've got someone shooting a gun and there's lots of people around.

[00:12:37] Speaker 03:
Why isn't that dangerous?

[00:12:38] Speaker 02:
I understand, because the officers incited that response.

[00:12:41] Speaker 03:
Well, that's a different argument.

[00:12:43] Speaker 03:
I'm just asking whether it was dangerous.

[00:12:46] Speaker 03:
The incitement, we can get to, but why isn't that a dangerous situation for the officers and potentially the public?

[00:12:53] Speaker 02:
I think it raises a reasonable dispute, a fact question for a jury to determine whether it was truly dangerous, just like in the Polly v. White case, Your Honor, where the Polly brothers poked guns out the window in response to the officers yelling, come out or we're coming in.

[00:13:06] Speaker 02:
That was another gun pointing situation where the officers were about 50 feet away.

[00:13:10] Speaker 02:
Here, similarly, the officers were 20 to 30 yards away from Mr. DeWeese.

[00:13:15] Speaker 02:
A considerable distance.

[00:13:16] Speaker 02:
They were out behind police cars.

[00:13:17] Speaker 02:
They're pointing their firearms.

[00:13:19] Speaker 02:
They had plenty of cover.

[00:13:20] Speaker 02:
They had plenty of distance.

[00:13:21] Speaker 02:
There was no real immediate threat from that.

[00:13:24] Speaker 03:
So it wasn't until the dog... I'm not sure how comforting that would have been to the people on the scene.

[00:13:29] Speaker 02:
I know it can be scary for police officers in sudden emergency situations, but I just want to point out that this was not one.

[00:13:35] Speaker 02:
The officers knew what was going to happen if they deployed that dog beforehand.

[00:13:39] Speaker 02:
And that's why this is a reckless incitement case.

[00:13:42] Speaker 01:
So let me ask you this.

[00:13:43] Speaker 01:
So if we were to determine that the deployment of the dog was appropriate, that basically gets your theory.

[00:13:51] Speaker 02:
No, Your Honor.

[00:13:51] Speaker 02:
And that's what the district court erred in finding as well.

[00:13:53] Speaker 02:
Because there's a separate theory of excessive force that goes along with the deployment of the dog as compared to reckless incitement.

[00:13:59] Speaker 02:
What you need for reckless incitement is

[00:14:01] Speaker 02:
reckless conduct that precipitates a self-defense of reaction.

[00:14:06] Speaker 02:
What was the reckless conduct?

[00:14:08] Speaker 02:
The reckless conduct is the police and canine rush, the overwhelming onslaught.

[00:14:13] Speaker 01:
Okay, this is what you were talking about at first, about it's not just the dog, it's that the cops arrest him too.

[00:14:18] Speaker 02:
Yes, Your Honor.

[00:14:19] Speaker 02:
Okay.

[00:14:20] Speaker 02:
The key question, as Judge Matheson found in the Flores case,

[00:14:23] Speaker 02:
is whether it would be reckless beyond debate.

[00:14:26] Speaker 02:
So that's the question.

[00:14:28] Speaker 02:
When officers have a high degree of knowledge that a risk of some sort of self-defensive response is coming, that is when you have reckless incitement.

[00:14:37] Speaker 02:
That's when you have the degree of knowledge required for this different theory of excessive force.

[00:14:42] Speaker 01:
So don't you have a meta trap in that situation?

[00:14:45] Speaker 01:
They deploy the dog that goes over and chews Mr. DeWeese up, and they're not close enough to come take the dog off of him.

[00:14:56] Speaker 01:
And then they have an excessive force claim for the dog chewing him up.

[00:15:01] Speaker 02:
Yes, Your Honor, I do believe that there's an excessive force claim for deployment of the canine following Lucci.

[00:15:07] Speaker 02:
And it's not exact parallel, in fact, to Lucci, as you've all pointed out.

[00:15:11] Speaker 02:
However, the Holding and Lucci found that, based on the law before the date of this incident in February 2022, that any reasonable office would know you shouldn't be deploying a K-9 or any intermediate force without substantial justification.

[00:15:27] Speaker 03:
I'm sorry.

[00:15:27] Speaker 03:
I just have a question for clarification, if you don't mind.

[00:15:31] Speaker 03:
I think I know the answer, but I want to hear it from you.

[00:15:34] Speaker 03:
In your brief at a couple of places, and I'll just mention in page 18, page 8,

[00:15:42] Speaker 03:
It almost seems like it's arguing that the state is alleging a third claim for reckless incitement.

[00:15:50] Speaker 03:
I don't think you intend to do that, do you?

[00:15:52] Speaker 03:
Isn't it just the canine release and the deadly force?

[00:15:56] Speaker 02:
No, Your Honor.

[00:15:57] Speaker 02:
There are three separate theories of excessive force.

[00:15:59] Speaker 03:
All right.

[00:16:00] Speaker 03:
But you only allege two claims in your complaint.

[00:16:02] Speaker 03:
And those are what they are.

[00:16:04] Speaker 03:
And you have this.

[00:16:06] Speaker 03:
You allude to this a couple of times in your brief.

[00:16:08] Speaker 03:
But I don't see you saying there's a third claim.

[00:16:12] Speaker 03:
Are there three claims or are there two claims?

[00:16:15] Speaker 02:
There are three theories, Your Honor.

[00:16:17] Speaker 02:
And in our complaints... Well, but two claims.

[00:16:19] Speaker 02:
Two claims.

[00:16:20] Speaker 02:
All right.

[00:16:20] Speaker 02:
One of them contains two theories, Your Honor.

[00:16:22] Speaker 02:
Okay.

[00:16:22] Speaker 02:
Which one has two theories?

[00:16:24] Speaker 02:
The deadly force claim, Your Honor.

[00:16:26] Speaker 03:
Okay.

[00:16:26] Speaker 03:
That helps me.

[00:16:27] Speaker 02:
And that's important because the reckless incitement precedent this Court has found primarily applies to deadly force situations.

[00:16:33] Speaker 02:
Thank you.

[00:16:34] Speaker 03:
That's all I needed to know.

[00:16:35] Speaker 02:
All right.

[00:16:35] Speaker 02:
Thank you.

[00:16:36] Speaker 02:
I see that my time is the most I'd like to preserve the remainder.

[00:16:38] Speaker 02:
Thank you.

[00:16:46] Speaker 03:
Mr. Eddy, you may proceed.

[00:16:52] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:16:54] Speaker 00:
I'm Attorney Jonathan Eddy, appearing on behalf of Officers Hoover and Schilke and arguing on behalf of all defendants.

[00:17:00] Speaker 00:
The estate has again failed to overcome either prong of defendant's qualified immunity defense.

[00:17:05] Speaker 00:
The allegations taken as true show that officers were called to respond to an armed individual

[00:17:10] Speaker 00:
who had secluded himself within a confined, unlit, narrow walkway in the heart of downtown Manitou Springs.

[00:17:16] Speaker 00:
Here, the officers pleaded with Mr. Dewees for 20 minutes and told him that if he did not come out with his hands up, that a police dog would be sent in to subdue him.

[00:17:25] Speaker 01:
How long did they give him after they told him they were going to let the dog loose?

[00:17:30] Speaker 01:
How long did they give him before they did turn the dog loose?

[00:17:33] Speaker 00:
Under the allegations of the complainant, it was seven minutes.

[00:17:36] Speaker 00:
But instead of complying with these orders that went on for a total of 20 minutes and seven minutes specifically with respect to the dog, Mr. Dewees instead threatened to shoot the dog and remained in the position he was standing in.

[00:17:48] Speaker 00:
Now, this allegation is important because it either, one, shows as a matter of fact that Dewees was armed, or two, at the very least, it reinforces the officer's objective belief that he was.

[00:18:01] Speaker 00:
Secondly, it also reinforces the exigency of this situation by telegraphing to the officers

[00:18:06] Speaker 00:
that Mr. DeWeese would have been more than willing to discharge a firearm in the heart of a public square.

[00:18:14] Speaker 00:
The estate has not alleged a plausible constitutional violation under these allegations, and it has not identified clearly established law that would have shown excessive canine force under these allegations.

[00:18:27] Speaker 00:
Specifically, none of the cases that the estate has identified would make clear to every reasonable officer that deploying a canine to subdue an armed

[00:18:34] Speaker 00:
non-compliant suspect would violate the Fourth Amendment beyond debate, especially where that suspect refused lawful commands for 20 minutes and was posed a threat to the public and the officers equally.

[00:18:54] Speaker 00:
With respect to the deadly force claim, Your Honor, the estate alleges that Mr. Deweese

[00:19:02] Speaker 00:
The officers, rather, did not open fire until Mr. Dewees pulled the gun from his pocket as the officers were moving in behind the canine.

[00:19:09] Speaker 00:
The allegations also suggest that the estate alleges that Dewees was only trying to shoot the police dog, as Mr. Raymond suggested, and that he therefore posed no threat to the officers or the public.

[00:19:26] Speaker 00:
Now, even accepting this allegation is true,

[00:19:30] Speaker 00:
Mr. DeWeese's subjective mindset is irrelevant.

[00:19:33] Speaker 00:
Whether he was in fear for his life subjectively is irrelevant under Graham.

[00:19:37] Speaker 00:
As this court mentioned earlier, it comes down to the perspective of the reasonable officer on scene.

[00:19:42] Speaker 00:
Here, no reasonable officer could have been expected to hold fire long enough to decisively and definitively assess what Mr. DeWeese's true intentions were when he pulled out a gun.

[00:19:52] Speaker 03:
Well, counsel, does it matter who shot first?

[00:19:56] Speaker 03:
Didn't the police

[00:19:59] Speaker 03:
Fire the first shot?

[00:20:01] Speaker 00:
Under the allegations, the allegations suggest that the police did fire first.

[00:20:05] Speaker 00:
However, those shots were not fired until Mr. Dewees removed the gun from his pocket.

[00:20:09] Speaker 03:
I understand.

[00:20:09] Speaker 03:
I'm just asking who shot first, and does that matter?

[00:20:12] Speaker 00:
Under this situation, it does not.

[00:20:14] Speaker 00:
And so to answer your question, per the allegations, the police shot first.

[00:20:18] Speaker 00:
And under this situation, it doesn't matter, given the holdings in Larson and other.

[00:20:22] Speaker 03:
Well, do you think we could pin this down a little more than saying the allegations?

[00:20:26] Speaker 03:
What are we working with here?

[00:20:28] Speaker 03:
Who shot first?

[00:20:31] Speaker 03:
I know there's been some debate about whether the district court got that right.

[00:20:37] Speaker 00:
So given that we're dealing with Rule 12b6, we have to accept the allegations as they are.

[00:20:42] Speaker 00:
Under the allegations, the officers shot first.

[00:20:46] Speaker 00:
Now, later on, after discovery, that will obviously be something that's disputed.

[00:20:50] Speaker 00:
But for purposes of the motion to dismiss, the officers concede that the allegations are that they did shoot first.

[00:20:58] Speaker 00:
Those shots were not fired until Mr. DeWeese removed the gun from his pocket.

[00:21:02] Speaker 00:
And that is made clear from the allegations.

[00:21:05] Speaker 00:
And so pursuant to Larson, officers need not even wait to see the glint of steel before they open fire.

[00:21:11] Speaker 00:
Here we had a situation where the gun is coming out of the pocket and pointing as the officers open fire.

[00:21:17] Speaker 03:
Well, why don't you put this in terms of the law on deadly force, the justification to use deadly force.

[00:21:26] Speaker 03:
And if Mr. DeWeese hadn't fired the gun, police fired first, do you still have a justification to use deadly force?

[00:21:35] Speaker 03:
Can you address it from that standpoint, Tennessee versus Garner?

[00:21:40] Speaker 00:
Well, you certainly do, Your Honor.

[00:21:41] Speaker 00:
I mean, under the Larson sub-factors, I mean, just the act of pulling out the gun and pointing it would have manifested a hostile- At the dog.

[00:21:49] Speaker 00:
Correct.

[00:21:49] Speaker 00:
But the allegations don't say that the officers at that time knew that the gun was coming out for the sole purpose of shooting the dog.

[00:21:57] Speaker 00:
A reasonable officer on that scene, rushing into a potential felony suspect who had been noncompliant for 20 minutes, they see a gun come out, it's not up to them to essentially make the gamble with their own lives where getting it wrong could have proved suicidal as this court held in Belgrade.

[00:22:14] Speaker 03:
Are you also saying it doesn't matter

[00:22:17] Speaker 03:
that Mr. DeWeese said in advance that he would use the gun to shoot the dog.

[00:22:25] Speaker 03:
That's all he said he was going to use the gun to do.

[00:22:29] Speaker 00:
That's certainly part of the totality of the circumstances and the consideration.

[00:22:32] Speaker 00:
But I think ultimately it comes down to would a reasonable officer in this situation, could a reasonable officer still concluded that the act of a gun coming out as officers are going in to subdue him, given everything that happened in the 20 minutes leading up to this, could that officer

[00:22:46] Speaker 00:
reasonably believed that there was a deadly threat, whether to the officers themselves or from an errant bullet that would have struck another member of the public, given the fact that they're literally standing in the middle of downtown Manitou Springs.

[00:23:00] Speaker 00:
Does that answer your question, Your Honor?

[00:23:02] Speaker 00:
Yes, thanks.

[00:23:05] Speaker 00:
So the estate has also now provided any clearly established law

[00:23:08] Speaker 00:
with respect to either of the theories or claims for relief.

[00:23:14] Speaker 03:
What about Alan and Ceballos on as clearly established law for risk creation underlying the deadly force claim?

[00:23:24] Speaker 03:
The theory is that it was reckless to release the dog.

[00:23:31] Speaker 03:
And we have the onslaught argument, police approaching Mr. Dewees.

[00:23:37] Speaker 03:
the police really created or raised the temperature to the point where the danger was something that they were responsible for, or at least responsible enough for this reckless incitement theory to have some traction here.

[00:23:57] Speaker 03:
So looking at it from clearly established law, why aren't Allen and Sabayas good cases for the estate?

[00:24:08] Speaker 00:
Right.

[00:24:08] Speaker 00:
So you still would, under the prong to clearly established analysis, you would still have to go through and analogize Alan Sabios in addition to Bond, which is another one of the cases for reckless incitement that the estate cited to in the brief.

[00:24:22] Speaker 00:
But what's different about those cases is all of those cases involved allegations of officers rushing into situations within seconds of arriving on scene where the suspects in those situations were

[00:24:34] Speaker 00:
were confined, for one, were known to have a mental illness or some sort of emotional distress or emotional disorder issue going on at the time, in addition to the fact that they were all contained on private property, and therefore did not pose that greater risk to the public, unlike what we had in this situation.

[00:24:50] Speaker 00:
So I would distinguish those three cases, Allen, Ceballos, and Bond, on those facts, similarly to what the district court did in this situation here.

[00:25:04] Speaker 00:
Just some quick points, Your Honor, with respect to some of the things that the estate mentioned this morning.

[00:25:10] Speaker 00:
You know, with respect to the Polly case, that case was distinguished in the briefing as well.

[00:25:14] Speaker 00:
I mean, the main difference in that case is the fact that there the officers did not identify themselves and gave the individual in question reason to believe that they were actually burglars or home intruders.

[00:25:25] Speaker 00:
They were threatening to come inside of his home.

[00:25:27] Speaker 00:
That's not the situation here, Your Honor.

[00:25:28] Speaker 00:
The officers clearly identified themselves for over 20 minutes prior to

[00:25:33] Speaker 00:
using any force in this case.

[00:25:37] Speaker 01:
I mean, doesn't that cut both ways?

[00:25:39] Speaker 01:
I mean, the delay in this case seems like it might cut both ways, because they have, like you were just talking about the Allen and Sabayos case and the Bond case, and the immediate response in those cases, as opposed to a 20 minute delay.

[00:25:55] Speaker 01:
And it seems like when you take this much time

[00:26:03] Speaker 01:
And after 20 minutes of discussions and things, and he doesn't make any threatening gestures or movements, that it might be less justifiable to rush in.

[00:26:21] Speaker 00:
Well, respectfully, Your Honor, I would disagree.

[00:26:23] Speaker 00:
I think that it just shows that the officers tried their very best to exhaust every possible resource that they had in that very limited situation.

[00:26:30] Speaker 00:
But again, it comes down to, similar to the situation,

[00:26:33] Speaker 00:
in Flores, it comes down to a matter of exigency.

[00:26:37] Speaker 00:
So in Flores, the exigency was, well, we have this potentially armed, dangerous individual in a home that potentially poses threats to other people in the home.

[00:26:45] Speaker 00:
Therefore, the officer's precipitating conduct in Flores, which was the protective sweep, was deemed justified and not reckless.

[00:26:55] Speaker 00:
Therefore, the use of deadly force was not reckless.

[00:26:58] Speaker 00:
In this case, the exigency is a little different, but it still existed.

[00:27:03] Speaker 00:
was the fact that we had an armed, non-compliant individual in the heart of downtown Manitou Springs.

[00:27:09] Speaker 01:
What were the allegations in the complaint about sort of the number of people that were in downtown at the square at this time?

[00:27:19] Speaker 00:
So there's no allegations as to how many people were around.

[00:27:23] Speaker 01:
I mean, we don't even know from the complaint if there was anybody.

[00:27:26] Speaker 01:
It looks like it's at night.

[00:27:30] Speaker 01:
Certainly not any.

[00:27:31] Speaker 01:
I mean, obviously, they probably wouldn't be.

[00:27:33] Speaker 01:
walking in front of the officers, but without any indication of how much of the public was present, I mean, how, at this stage, do we even make a determination of what the exigency was?

[00:27:50] Speaker 00:
I think there could still be a determination made here.

[00:27:52] Speaker 00:
So two points to that.

[00:27:54] Speaker 00:
So one, the images in the complaint

[00:27:56] Speaker 00:
basically admit that there was at least one person around.

[00:27:59] Speaker 00:
It was the civilian that was videotaping this whole thing.

[00:28:01] Speaker 00:
And those photos are obviously included in the complaint and therefore can be reviewed.

[00:28:05] Speaker 00:
Secondly, the fact that he was in the heart of a public square downtown, from the perspective of a reasonable officer who is essentially tunnel vision, focused on the threat directly in front of him, could that reasonable officer believe that perhaps there were members of the public behind him or her at that time?

[00:28:23] Speaker 00:
And under these allegations and under the facts of this case,

[00:28:26] Speaker 00:
I think the answer to that is yes.

[00:28:27] Speaker 00:
And so that should be considered in this case in favor of the officers.

[00:28:32] Speaker 00:
OK.

[00:28:34] Speaker 00:
So unless the court has any further questions, that's all I have.

[00:28:37] Speaker 00:
I'll reserve the rest of my time.

[00:28:39] Speaker 03:
Thank you.

[00:28:40] Speaker 03:
Thank you, counsel.

[00:28:43] Speaker 03:
OK, I think Mr. O'Brien used up his time and went over.

[00:28:47] Speaker 03:
Oh, was that over?

[00:28:49] Speaker 03:
Yes.

[00:28:49] Speaker 03:
Sorry about that.

[00:28:51] Speaker 03:
I think we're at the end.

[00:28:56] Speaker 03:
So we will consider the case submitted.

[00:28:59] Speaker 03:
Council are excused.

[00:29:00] Speaker 03:
Thank you for your arguments.

[00:29:01] Speaker 03:
They were helpful.

[00:29:02] Speaker 03:
Thank you.