[00:00:00] Speaker 01:
Case number 25, 756, Commedia Alston.

[00:00:04] Speaker 01:
Individually in that special administrative state of Mr. Marquis Alston, Dispersed District of Columbia, and officers X, Y, A, and Z, and their individual and official classes, Bonaparte and Kayla DeMiro, the appellants.

[00:00:17] Speaker 01:
Ms.

[00:00:17] Speaker 01:
Rosanario for the appellants, and Mr. Hearn DeZolo for the appellants.

[00:00:23] Speaker 01:
Good morning.

[00:00:24] Speaker 04:
Good morning, Your Honors.

[00:00:25] Speaker 04:
Ms.

[00:00:25] Speaker 04:
Rosanario?

[00:00:26] Speaker 04:
Rosanario.

[00:00:27] Speaker 04:
Like, are you Russian?

[00:00:28] Speaker 04:
Rosanario.

[00:00:30] Speaker 05:
Good morning, your honors, and may it please the court, Mr. Shenario on behalf of the Metropolitan Police Department officers, Ronald Cook and Caleb DeMerit.

[00:00:39] Speaker 05:
And I'd like to reserve three minutes for rebuttal.

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Officers Cook and DeMerit are entitled to qualified immunity because a complaint in this case, which incorporates the officer's body worn camera footage by reference,

[00:00:52] Speaker 05:
fails to state a Fourth Amendment violation.

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Now, we raised an initial argument in our brief about how even the four corners of the complaint failed to state a claim for which relief can be granted.

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And I'm happy to address any questions about that argument.

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But I think the more straightforward path here is to focus on the body worn camera footage, which contradicts any allegation that the officer's use of force in this case was not reasonable.

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And this is because the body worn camera footage shows that Mr. Austin, while fleeing from officers, stopped his fight, turned around to face the officers while extending his arm away from his body and holding an object that appears to be a gun, or at the very least that a reasonable officer could have believed was a gun.

[00:01:35] Speaker 03:
What's your best legal argument for considering the video?

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I mean, it's not really contested, and maybe that's the end of the matter.

[00:01:45] Speaker 03:
It seemed a little tricky to me.

[00:01:47] Speaker 03:
I mean, incorporation comes through rule 10C, which talks about a written instrument, which doesn't seem to fit that description.

[00:01:58] Speaker 05:
Yes, Your Honor.

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So I think it does come through 12C.

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And I agree.

[00:02:05] Speaker 03:
10C, right?

[00:02:07] Speaker 05:
Yes, yes, something that is attached to the complaint.

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And a course that have considered these sorts of exhibits, including videos, have found them to be incorporable by reference in the same way that emails or other documents are.

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The Supreme Court has said in Talib that when you consider a complaint, you look at all of the allegations in the complaint, and you look at the complaint in its entirety.

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And that includes anything that's incorporated by reference.

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And there hasn't been any argument here that a video is

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a distinct type of document that because it's not written cannot be incorporated by reference in the same way that a contract or an email or a photograph can be.

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So I think the general position is that in general when you're looking at a complaint, you look at the entirety of it and look at whether any of the

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allegations internally contradict each other.

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And when you do that, you look at the exhibits at anything incorporated by reference.

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And we've seen courts consider these videos and other similar documents in the Sixth Circuit, Fourth Circuit, Eighth Circuit, Tenth Circuit, Eleventh Circuit, Fifth Circuit.

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And so it's been pretty universally considered.

[00:03:14] Speaker 06:
I mean, we have authority that's a little bit more nuanced about incorporation by reference.

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And I'm thinking about Banneker Ventures versus Scram, in which

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We say the incorporation by reference doctrine has limits.

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The document comes before the court as an attachment to a defendant's motion to dismiss or as cited within it.

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It may not be appropriate for the court to treat the entire document as incorporated.

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And we talk about

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how other circuits have followed that approach.

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And so there's a question here whether the uses that the plaintiff is making are appropriately seen as limited to those and that the consideration of the balance of those documents, the body worn camera videos would have to await a later stage.

[00:04:08] Speaker 05:
I mean, again, Your Honor, plaintiffs never contest that the full video has been incorporated by reference in the complaint, and they cite it repeatedly in their complaint.

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And that's why it's incorporated by reference, not because it's attached as an exhibit to the defendant's motion to dismiss, but because the plaintiffs repeatedly refer to it and repeatedly refer to the facts reflected in the body-worn camera footage as part of their allegations.

[00:04:31] Speaker 06:
Let me ask you, Mr. Rossonaro, even on appeal from

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A denial of qualified immunity.

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I don't think that this, uh, this court has ever in a case in which police use deadly force that we've ever dismissed a case on qualified immunity grounds at the pleading stage.

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Are you aware of any such case?

[00:04:58] Speaker 05:
I'm not aware of any case in discord.

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Now there are cases in other circuits.

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What are you referring to in other circuits?

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Because all the cases that you cited in your brief, I found one 20-some-year-old case in the 11th Circuit.

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That's the only case I found.

[00:05:17] Speaker 05:
Well, so there's Garcia Vidoz, which was the 2015 case in the Second Circuit, where the Second Circuit reversed denial of qualified immunity at the motion to dismiss stage, in part because the video contradicted the plaintiff's allegations that the officers had given the plaintiff's permission to go into the street.

[00:05:34] Speaker 06:
And that was a pleading stage.

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That was a pleading stage.

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That was a motion to dismiss.

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another one was Bailey versus City of Ann Arbor.

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So that is a Sixth Circuit case that was decided at the Motion to Dismiss stage.

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That one involved a false arrest claim, but the Sixth Circuit reversed denial of qualified immunity at the Motion to Dismiss stage because the video

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contradicted the plaintiff's allegations that a surveillance footage hadn't shown someone who matched the description of the plaintiff.

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There's Anderson versus Estrada, which we cited in our reply brief.

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That is a Fifth Circuit case that reversed a denial of qualified immunity at the motion to dismiss stage.

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That case involved an arrest after a DUI where the officers had used a stun gun while trying to get an individual into a vehicle.

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and had caused his death.

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The court looked at the video and said the video contradicted the plaintiff's allegations that

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individual had an actively resisted arrest, and it reversed the denial of qualified immunity at the motion to dismiss stage because of that.

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And then East Step versus City of Nashville, which is a case that we cite in our response, in our reply brief, intersection about subsequent shootings.

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But that one also was at the motion to dismiss stage.

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The court looked at the body-worn camera footage, and it saw that the individual in that case,

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two quick steps towards the officer and then pulled out something from his jacket and pointed at the officers while holding it in two hands.

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Those are all cases in which the person was shot and killed.

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Anderson versus Estrada involved a taser.

[00:07:18] Speaker 05:
So they weren't shot and killed?

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So they weren't shot and killed there.

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Estep was an individual that was shot.

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I'm not sure if he was killed, but I believe that he was.

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And Garcia?

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Garcia was a false arrest case.

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I'm specifically asking about where somebody is killed.

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I mean, so Anderson versus Estrada, the officers used a stun gun against the individual.

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The individual died, and the court looked at the video and said it contradicted plaintiff's allegations that he didn't actively resist the arrest.

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And Bailey?

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Bailey was a false arrest claim.

[00:07:56] Speaker 06:
Nuts.

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Nobody died.

[00:07:57] Speaker 05:
No one died there.

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So you didn't say life.

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versus District of Columbia 2015 case from this court.

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And that was a unanimous opinion by Judge Tatel joined by our former colleague, now Justice Kavanaugh.

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And we recognize in that case, the special difficulties you're nodding because you know about this case, but you didn't say that.

[00:08:23] Speaker 05:
We thought that Fife is distinguishable because Fife, well one, it involved a knife instead of a gun, but also it was at the summary judgment stage and there were issues of material fact that were disputed.

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That's what this court held.

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So the part of the case that I'm pointing to talks about the difficulties faced by a plaintiff's

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decedent, the plaintiff's representative, a dead person's representative, who is challenging the use of deadly force.

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And in that case, apparently consistently with every other circuit to have considered the issue, adopted a particularly cautious approach

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to drawing inferences in the officer's favor.

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And you're right that that was at the summary judgment stage, but I wonder if it isn't an even stronger

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sort of cautionary rule for the motion to dismiss.

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And what we said in that case is that the person who's in the best position to give the perspective opposing that of the officers is dead.

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And so there's a special reason to be cautious about drawing inferences.

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in the officer's favor, and there it was even at the summary judgment stage.

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And to be clear, Your Honor, we're not asking the court to draw reasonable inferences in the officer's favor when there's reasonable inferences that can be drawn in the plaintiff's favor.

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So we're saying assume all the well-pleaded allegations are true, draw reasonable inferences in the officer's favor, but then when you look at the body worn camera footage, does it contradict

[00:10:09] Speaker 05:
any potential allegation that the officer's use of force here was unreasonable.

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And we agree that there are some aspects of the encounter here that are not clear from the body or camera footage.

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And that's the beginning of the encounter.

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So if we look at the pleading stage and we take the image of Mr. Alston as pleaded,

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It shows somebody with an object in his hand.

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We draw inferences in the plaintiff's favor.

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So does that mean we can or should or must assume that because it could be a phone, that at this stage it is a phone?

[00:10:56] Speaker 05:
Your Honor, we disagree that it can be a phone.

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And it's not just a still image of Mr. Alston turning towards the officers holding this object.

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It's everything around the shooting.

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So you have Mr. Alston turning towards the officers holding what looks like a gun.

[00:11:11] Speaker 05:
It's the same size, shape, color as a gun.

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He's holding it the way one would hold a gun.

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On what authority do we not draw the inference in the plaintiff's favor that what he turns and is holding is a phone?

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is we're at the pleading stage.

[00:11:28] Speaker 05:
Even if the court draws that inference, that it could be a phone doesn't resolve the analysis.

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Because the question is, what would a reasonable officer have perceived this to be?

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And I think that when you look at the video, it's clear that a reasonable officer could have thought this was a gun for the same reasons that we talked about it.

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It's the shape of a gun.

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He's holding it the way one would hold a gun.

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And the officer doesn't have to definitively identify this as a gun before they are able to act in a split second situation where their lives and the lives of others are at risk.

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And Your Honor, it's not just the image of the object in Mr. Alton's hand here.

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Also that, you know, Mr. Alston turns to face the officers.

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A second later, you see Officer Demarich diving towards the ground as a shot is fired.

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You see that when parts, like I said, parts of the video, especially about the very beginning of the encounter, are unclear.

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We argue that that's not material to the ultimate determination here.

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But what is clear, for example, is the officers are not holding a weapon in their hands as they're chasing Mr. Alston.

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So you see the diving and the timing of the shot.

[00:12:37] Speaker 06:
I thought that was an important argument that you made.

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And I, but I also thought the district court did a very careful job in deciding the motion to Smith.

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And I thought I had read the district court's opinion before reading the briefs.

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And I thought, what did she say about that?

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And it made me realize that that wasn't raised in the district court.

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And we have a,

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Pretty strong rule against sandbagging a district court by deciding something on appeal on a basis that wasn't.

[00:13:07] Speaker 06:
Raised for the district court.

[00:13:11] Speaker 05:
I mean, the officers did raise in their motion to dismiss and in their reply that the officers shot after Mr. Alston shot, so that they shot after he turned towards them and raised something that appeared to be a gun.

[00:13:27] Speaker 05:
So that was raised.

[00:13:28] Speaker 05:
It wasn't parsed out second by second in the... There was no claim that he had shot.

[00:13:34] Speaker 06:
It was just that he turned and he looked like he had a gun.

[00:13:37] Speaker 06:
So it was the visual claim, not that there actually was any shot.

[00:13:41] Speaker 06:
As far as what I saw in the district court, you can point out where it is if I'm wrong.

[00:13:48] Speaker 05:
I think the claim was about him turning towards the officer with his arm extended before any shots were fired.

[00:13:55] Speaker 05:
But when you look at, it wasn't parsed out second by second the way that we're doing now, but I think that the court, the video stands for itself and the court can look at the video and

[00:14:03] Speaker 05:
should not ignore the facts that are clear from the video, especially in a qualified immunity case where the officers are entitled not to undergo discovery or further litigation if it's blatantly clear that there is no claim here that their use of force was reasonable.

[00:14:22] Speaker 02:
Council, am I misinterpreting the tape?

[00:14:26] Speaker 02:
It seemed to me that the video from the

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officer who was further behind, Mr. Alston, shows, well, first of all, pardon me, we hear a shot.

[00:14:44] Speaker 02:
Yes.

[00:14:44] Speaker 02:
Shows the officer in the lead ducking and drawing his gun.

[00:14:53] Speaker 02:
When we look at the tape of the officer behind and we see that all of that happens before,

[00:15:02] Speaker 02:
Either officer has drawn a gun.

[00:15:05] Speaker 05:
That's correct, Your Honor.

[00:15:06] Speaker 02:
So it's quite clear that Mr. Alston fired a gun and did so first.

[00:15:12] Speaker 05:
We believe so, Your Honor.

[00:15:14] Speaker 05:
And especially the, so you look at Officer DiMera's body wearing camera feathers.

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So at 23 hours, 11 minutes, and 45 seconds, you see his right hand not holding any weapon in his hand.

[00:15:25] Speaker 05:
The same thing with Officer Cock at 23 hours, 11 minutes, and 46 seconds.

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That's the exact time that Mr. Alston turns towards the officer with his arm extended.

[00:15:34] Speaker 05:
We see on officer Cook's body word camera footage that he doesn't have a gun in his hand.

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The first shot is one second later, and we see Officer DeMaird on Officer Cook's body word camera footage, as you mentioned, from behind as he's drawing his gun while he's on the ground.

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And we see Officer Cook draw his gun one second later.

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And so we do contend that it is clear from the body-worn camera footage that Mr. Olson had a gun.

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He fired first.

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And therefore, this court should not ignore the reality of that video when it is considering this appeal.

[00:16:12] Speaker 02:
Just for remanding, Mr. Olson's not coming back.

[00:16:17] Speaker 02:
I'm not sure what can be added, frankly, to the record here.

[00:16:23] Speaker 05:
I mean, there's forensic evidence, witness dissonance, and other things, I think.

[00:16:27] Speaker 05:
Yeah, but we're at the motion to dismiss stages, so we're taking the plaintiff's allegations.

[00:16:33] Speaker 06:
So you say you're taking the plaintiff's allegations as true, and you make quite a point about, you say that the complaint never alleges that

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Mr. Alston was unarmed or that he didn't fire.

[00:16:47] Speaker 06:
But I read the complaint to have alleged, I mean, the mother wasn't there, right, on the scene.

[00:16:59] Speaker 06:
So what it does allege, consistent with rule 11, is that multiple witnesses on the scene at the time of the shooting deny ever seeing Mr. Alston with a gun or hearing any crossfire.

[00:17:14] Speaker 06:
So you put a lot of emphasis on there's no denial about being armed or shooting, but that seems to me is trying a fair inference in plaintiff's favor that there is such a pleading.

[00:17:27] Speaker 05:
And we don't think that the pleading about the witnesses is sufficient.

[00:17:30] Speaker 05:
That's just because they don't plead any information about the witness's position or what they could have seen.

[00:17:35] Speaker 05:
But, Your Honor, even if you don't agree with us and you think that the complaint adequately alleges on its four corners that Mr. Ulster was unarmed, that allegation is contradicted by the video.

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And when you have a video that contradicts an allegation in the plaintiff's complaint, of course, you should look at the facts as they are shown in the video and not take the truth

[00:17:56] Speaker 05:
the matter started for the plaintiff's allegations.

[00:18:00] Speaker 05:
So if the court has no further questions, we ask that the court reverse and remand with instructions to dismiss the Fourth Amendment claims against officers Cook and Merritt.

[00:18:12] Speaker 06:
Thank you.

[00:18:12] Speaker 06:
And we'll give you rebuttal time.

[00:18:18] Speaker 06:
Mr. Herndez-Satels?

[00:18:20] Speaker 00:
Desatel, yes.

[00:18:21] Speaker 06:
Desatel.

[00:18:22] Speaker 06:
Yeah.

[00:18:23] Speaker 00:
Is that a tough one to pronounce?

[00:18:37] Speaker 00:
Good morning, Your Honors.

[00:18:38] Speaker 00:
May it please the court.

[00:18:40] Speaker 00:
Gabriel Hearn Desatel on behalf of Plaintiff Appellee, Kenetia Alston, alongside Supervising Attorney, Alexandra Afnan.

[00:18:48] Speaker 00:
Your Honors, this appeal is improper for two reasons.

[00:18:51] Speaker 00:
First, the defendants have failed to establish that this court has interlocutory jurisdiction over their claims, because those claims rest entirely on disputed facts, not on abstract questions of law.

[00:19:01] Speaker 06:
But isn't that a standard appeal?

[00:19:03] Speaker 06:
I mean, under Pearson versus Callahan,

[00:19:06] Speaker 06:
The qualified immunity inquiry is these two steps.

[00:19:10] Speaker 06:
One is, was there a constitutional violation at all?

[00:19:14] Speaker 06:
And even if there was, was the law, and in this context, it's the law as applied in the particular context, clearly established.

[00:19:23] Speaker 06:
And so on an interlocutory appeal, we're going to ask, does the complaint, the allegations of the complaint, plausibly alleged, drawing inferences in plaintiff's favor, state,

[00:19:36] Speaker 06:
A, a plausible claim of excessive force, and B, was it clearly established?

[00:19:42] Speaker 06:
I don't even follow that argument, honestly.

[00:19:45] Speaker 00:
OK.

[00:19:46] Speaker 00:
Well, first, Your Honor, the second prong of the qualified immunity standard, the clearly established prong, was not raised in the defendant's opening brief.

[00:19:57] Speaker 00:
We have not had a chance to adequately brief the issue.

[00:20:02] Speaker 00:
Discord has fairly clear standards when it comes to when an argument is forfeited, when it's only raised for the first time in a reply brief.

[00:20:10] Speaker 03:
But I guess if there's no violation at all, there's no violation of clearly established law.

[00:20:18] Speaker 03:
And that is what the two is a for sure.

[00:20:20] Speaker 03:
I from one argument.

[00:20:22] Speaker 00:
And that's what the defendants are arguing, Your Honor.

[00:20:24] Speaker 00:
They're arguing prong one.

[00:20:27] Speaker 00:
The substance of their brief is devoted to contending that there was no violation to begin with and that the officers acted objectively, reasonably under the circumstances.

[00:20:37] Speaker 03:
I mean, I'm not sure why prong one versus prong two matters for purposes of Judge Pillard's question.

[00:20:44] Speaker 03:
I mean, my take on appealability was that it involved

[00:20:52] Speaker 03:
holds that Johnson does not bar a QI appeal from a denial of a motion to dismiss, where we're talking not just about pure legal claims that would have been cognizable under Connolly versus Gibson, but we're talking about, specifically about pleading sufficiency, which is what Dick Ball said you could do on a 12-26 appeal.

[00:21:21] Speaker 00:
Right.

[00:21:21] Speaker 00:
And the Johnson standard applies when an appeal raises factual disputes.

[00:21:30] Speaker 00:
On summary judgment.

[00:21:32] Speaker 00:
On summary judgment, yes.

[00:21:33] Speaker 00:
But this court has applied the Johnson standard at the motion to dismiss stage in Bar M. V. Salazar when it denied jurisdiction on a motion to dismiss for qualified immunity purposes when the dispositive question was the reasonable.

[00:21:48] Speaker 03:
You cited one case that was pre-IGBALT, a 2009 case that was pre-IGBALT.

[00:21:53] Speaker 03:
I didn't see any post-IGBALT case.

[00:21:56] Speaker 00:
2009, Your Honor?

[00:22:01] Speaker 03:
Yeah, a couple months before it.

[00:22:03] Speaker 03:
OK.

[00:22:05] Speaker 00:
Well, you know, the...

[00:22:07] Speaker 00:
I think the core issue remains which is that qualified immunity appeals are only, interlocutory appeals from denials of qualified immunity are only proper to the extent that they raise legal questions and legal questions are those that can only be decided in reference to undisputed facts.

[00:22:24] Speaker 06:
Well, I think you should move on from the jurisdictional point because it seems clear to me that at the complaint stage, and I know Johnson versus Jones puts a wrinkle in it, but I found that actually somewhat confusing why in your brief you were even when talking about the merits of the appeal, you were referring to Johnson versus Jones because

[00:22:45] Speaker 06:
This is not at the summary judgment stage.

[00:22:47] Speaker 06:
You have not had an opportunity to do discovery.

[00:22:50] Speaker 06:
We are not assessing whether there's a material issue of fact in dispute as an evidentiary matter.

[00:22:57] Speaker 06:
We're looking at the pleading.

[00:22:59] Speaker 06:
So focusing on that with the pleading standard in mind, tell us why Ms.

[00:23:05] Speaker 06:
Alston deserves to have her claim proceed.

[00:23:11] Speaker 00:
Well, as a threshold matter, Your Honor, we do believe that the fact that the majority of these cases arrive on summary judgment does cut in our favor.

[00:23:23] Speaker 00:
But on the defendant's sufficiency argument, their entire argument depends on this court construing facts and making inferences in the defendant's favor, which is impermissible at this stage of the litigation.

[00:23:38] Speaker 03:
Are you willing to have us consider the video?

[00:23:43] Speaker 00:
Yes, we do not contend that the video is incorporated, but we do contend that the video

[00:23:49] Speaker 00:
Our argument is that the video does not unambiguously contradict any of Ms.

[00:23:54] Speaker 00:
Alston's factual allegations.

[00:23:57] Speaker 03:
Suppose I draw two inferences from the video that I think are beyond reasonable dispute, which could not be plausibly controverted.

[00:24:08] Speaker 03:
Number one, Mr. Alston turned and had in his hand an object that an officer could think was a gun.

[00:24:20] Speaker 03:
And number two, shots were fired.

[00:24:24] Speaker 03:
Someone fired shots before either officer did.

[00:24:28] Speaker 03:
If I just take those two things as given what's left of your case.

[00:24:34] Speaker 00:
To your first hypothetical, Your Honor, the defense have cited to no case where the mere possession of a firearm is by itself justification for officers to use deadly force.

[00:24:45] Speaker 00:
In each one of their cases that they cite for an officer's reasonableness on this point, the court was able to consider

[00:24:54] Speaker 00:
much more indicia of the alleged threat of the suspect.

[00:24:58] Speaker 00:
For example, there were 911 calls in the records that the suspect had recently committed a violent crime and was armed.

[00:25:07] Speaker 00:
That's Garza from the Fifth Circuit and Boyd from the Sixth Circuit.

[00:25:11] Speaker 00:
There were cases where

[00:25:13] Speaker 00:
In the record, it was confirmed that officers had attempted to de-escalate the situation by giving warnings or giving verbal commands.

[00:25:21] Speaker 00:
And crucially also, in all of those cases, it was undisputed that the suspect was armed.

[00:25:29] Speaker 00:
And the vast majority of them arrived again at summary judgment.

[00:25:32] Speaker 00:
So the mere fact that an individual has a gun does not by itself justify the use of deadly force.

[00:25:40] Speaker 00:
To Your Honor's second point about the firing of the gunshot, as we allege in our complaint, it is not definitively apparent where that first gunshot came from.

[00:25:50] Speaker 03:
It is to me anyway.

[00:25:55] Speaker 03:
talk me out of this, but to me it was definitively clear that neither of the two defendants fired the first shot.

[00:26:05] Speaker 03:
Pretty clear that Alston did, but put that aside.

[00:26:09] Speaker 03:
Somebody else fired the first shot.

[00:26:14] Speaker 00:
I think it's important to note here that we also alleged in our complaint that at least six officers jumped out of two squad cars and pursued Mr. Alston.

[00:26:24] Speaker 00:
We don't see in the body cam footage any moment where any of those other officers are visible.

[00:26:31] Speaker 00:
So a reasonable inference that could be drawn, would be drawn in our favor, as is required at this stage, is that the shot came from one of those officers.

[00:26:40] Speaker 00:
Even if I spot you that,

[00:26:43] Speaker 03:
You have the two officers chasing the guy who's running away and turns around and has something in his hand that could be a gun, and then gunfire goes off?

[00:26:55] Speaker 00:
Well, that would require, Your Honor, to assume that as a matter of law, that is definitively the way that an individual holds a gun and is definitively inconsistent with the way that somebody holds a cell phone.

[00:27:06] Speaker 03:
I'm just assuming that this is a chaotic situation and the officers reasonably fear for their lives.

[00:27:11] Speaker 03:
Certainly.

[00:27:14] Speaker 00:
The defendants are trying to improperly limit this court's analysis to the moment of the threat when Mr. Alston turns around and they allegedly see the object in his hand.

[00:27:27] Speaker 00:
They are ignoring the totality of the circumstances that begin in our complaint with Mr. Alston talking on the phone outside in broad daylight with a group of his friends.

[00:27:39] Speaker 00:
hanging out with his friends, and no eyewitnesses can put a gun in his hand, and no eyewitnesses heard any crossfire.

[00:27:46] Speaker 00:
At least six fully-uniformed, fully-armed police officers sprint at him down an alley.

[00:27:52] Speaker 00:
He turns around with an object in his hand that is consistent with the size, shape, and color of a cell phone, and he's shot dead.

[00:28:00] Speaker 00:
So the defendant's version of the facts requires this court to assume that

[00:28:06] Speaker 00:
Several several things first that officer demerit dove to the ground and didn't trip and fall that Mister Alston instead of turning around with a cell phone in his hands to film the officers that were running out and trip and fall.

[00:28:22] Speaker 03:
To the side getting out of stuff.

[00:28:25] Speaker 03:
line of fire?

[00:28:26] Speaker 00:
It does require the court to assume that he dove out of the way deliberately, that he was able to react in that split second, and that he even saw the object in Mr. Alston's hand when Mr. Alston turned around.

[00:28:39] Speaker 00:
It requires the court to assume that, even assuming that Mr. Alston was armed, that he was turning around with the manifest intent to fire on a group of fully armed officers.

[00:28:49] Speaker 06:
The standard is, what would a reasonable officer

[00:28:53] Speaker 06:
in the position of the defendants in this case perceive what quite a reasonable officer in their position have believed, have observed and understood was the situation.

[00:29:09] Speaker 06:
You make a claim that there's a false arrest and an excessive force separate

[00:29:16] Speaker 06:
separate claim, and I wanted to probe that because I'm not sure that I follow it.

[00:29:19] Speaker 06:
I mean, the only seizure that the complaint alleges and is challenged on appeal is the officer's use of deadly force.

[00:29:27] Speaker 06:
When they do the jump out of the car,

[00:29:30] Speaker 06:
Mr. Alston doesn't comply and so you don't have a seizure based on the show of force at that stage.

[00:29:39] Speaker 06:
So if you lose on the Fourth Amendment excessive force claim, don't you necessarily lose on the false arrest claim?

[00:29:49] Speaker 00:
If after construing all facts and making all reasonable inferences in our favor, the court finds that the initial use of force was objectively reasonable under the circumstances, then yes, our excessive force claim would be harder to prove.

[00:30:04] Speaker 00:
But I do think that it's important to acknowledge that our second excessive force claim would still be maintained.

[00:30:11] Speaker 06:
I'm not following what you just said.

[00:30:15] Speaker 06:
claim of arrest based on the show of force when the officers jump out of the car because Mr. Olsen doesn't submit, he runs.

[00:30:24] Speaker 00:
We allege that the seizure is when Mr. Olsen was shot and that the officers lacked probable cause to cease him at that point, yes.

[00:30:31] Speaker 06:
Okay, so that's, and both claims rise or fall on that.

[00:30:34] Speaker 00:
Correct, yes.

[00:30:36] Speaker 00:
But the second excessive force claim, which stems from the officers continuing to shoot Mr. Alston or shooting Mr. Alston when he was on the ground unmoving, incapacitated, that claim, even if the court finds that the initial use of excessive force was objectively reasonable, that claim survives.

[00:30:58] Speaker 00:
In Plumhoff v. Rickard, the Supreme Court made clear that officers were only reasonable in continuing to shoot at the suspect in that case because he was manifesting an intent to continue escaping in a vehicle, which clearly posed a continuing threat to the officers and to other members of the public.

[00:31:17] Speaker 00:
That is not the case here.

[00:31:19] Speaker 00:
We hear Officer Koch, after he finally does turn on his

[00:31:23] Speaker 00:
his audio say that Mr. Alston got rid of whatever was in his hand.

[00:31:29] Speaker 00:
A reasonable inference from that fact is that, you know, Officer Koch saw the object leave Mr. Alston's hand before he was incapacitated and so could clearly no longer continue to pose a threat.

[00:31:43] Speaker 00:
In addition here, Your Honors, the cases cited by the defense have many more affirmative indications of continuing threat from the suspect than is the case here.

[00:31:53] Speaker 00:
In Boyd, for example, the plaintiff was on the ground, but he raised his torso up and still had a gun and pointed the gun at the officers.

[00:32:01] Speaker 00:
And the court found that that was crucial in establishing the officer's reasonableness in continuing to shoot him when he was on the ground.

[00:32:08] Speaker 00:
By contrast, in Graves v. Malone from the Sixth Circuit, the court found that an officer was unreasonable in shooting a suspect with a taser even when he was under the mistaken belief that the suspect was armed.

[00:32:23] Speaker 00:
The Tennessee v. Garner standard continues to apply in both excessive force cases when a fleeing suspect poses no

[00:32:34] Speaker 00:
serious threat of imminent physical harm.

[00:32:37] Speaker 00:
Um the use of deadly force is is unreasonable and as your honor pointed out in your conversation with my friends across the aisle um fly the VDC is particularly relevant here.

[00:32:48] Speaker 00:
Um the only disputed

[00:32:50] Speaker 00:
factual circumstance in that case was what happened when the suspect turned around.

[00:32:55] Speaker 00:
And yes, it was a knife, but that's still a deadly weapon.

[00:32:58] Speaker 00:
There were eyewitnesses, but nobody saw exactly what happened in that precise moment.

[00:33:03] Speaker 00:
And this court found that under those circumstances, when the individual most likely to contradict

[00:33:09] Speaker 00:
an officer's potentially self-serving testimony, the court is duty-bound to view that testimony with particular skepticism.

[00:33:16] Speaker 00:
And we don't even have sworn officer testimony in this case.

[00:33:19] Speaker 00:
We have the facts as they apparently perceive them through their counsel in these two briefs.

[00:33:25] Speaker 00:
This is precisely the kind of case that cries out for discovery, where we can further assess the facts, further assess the forensic evidence, what information the officers were armed with when they arrived on the scene.

[00:33:40] Speaker 00:
I see that my time is more than concluded.

[00:33:43] Speaker 00:
I might briefly conclude.

[00:33:46] Speaker 00:
The defendants are asking this court to do something that it has never done before.

[00:33:50] Speaker 00:
to dismiss on qualified immunity grounds, a sufficiently pled Fourth Amendment claim for deadly force at the motion to dismiss stage.

[00:33:58] Speaker 00:
We ask this court to dismiss this appeal for lack of jurisdiction or alternatively to affirm the district court's refusal to grant qualified immunity on Ms.

[00:34:06] Speaker 00:
Alston's Fourth Amendment excessive force and false arrest claims.

[00:34:09] Speaker 00:
Thank you, Your Honors.

[00:34:17] Speaker 06:
Thank you.

[00:34:17] Speaker 06:
Ms.

[00:34:17] Speaker 06:
Deschanaro.

[00:34:19] Speaker 05:
Thank you, Your Honors.

[00:34:21] Speaker 05:
Just a few points on rebuttal.

[00:34:24] Speaker 05:
So first, I wanted to just refer back to Judge Pillard's discussion earlier about the sound of the gunshot and the timing of the gunshots.

[00:34:33] Speaker 05:
And you asked whether that argument had been forfeited.

[00:34:36] Speaker 05:
But I did want to point out that plaintiffs have never raised a forfeiture argument.

[00:34:41] Speaker 05:
And they've never argued that that wasn't properly before the district court or that this court cannot consider the timing of the shots.

[00:34:48] Speaker 05:
very briefly on the totality of the circumstances and the moment of threat here.

[00:34:53] Speaker 05:
So I think, you know, we are at the pleading stage.

[00:34:55] Speaker 05:
We have to take all of the plaintiff's allegations as true.

[00:34:58] Speaker 05:
And so even the key here and the material point is that even if the officers started chasing Mr. Austin for no reason,

[00:35:07] Speaker 05:
What really matters is that at the point when Mr. Alston turned around to face the officers holding a gun or what a reasonable officer could have perceived to be a gun, the use of deadly force is reasonable.

[00:35:18] Speaker 05:
And no court has ever held that a reasonable use of deadly force becomes unreasonable simply because of an earlier interaction.

[00:35:27] Speaker 05:
On the argument that it's not clear whether officer demerit dove to the ground or whether he fell, we contend that it is clear from officer Cox's body or camera footage that officer demerit dove to the ground.

[00:35:39] Speaker 05:
In addition, you also see the passerby.

[00:35:40] Speaker 05:
So at the exact same moment that officer demerit

[00:35:43] Speaker 05:
dives to the ground, there's a passer-by that's standing between Mr. Alston and Officer DeMerit, who glances back at Mr. Alston's ducks and starts running away.

[00:35:52] Speaker 05:
And so I think that shows it's not, this isn't just, there's no reasonable inference that can be drawn that this is just a trip or a fall of Officer DeMerit.

[00:36:00] Speaker 06:
I take it you're willing to rest just on the visuals of the body worn camera.

[00:36:06] Speaker 06:
We are, Your Honor.

[00:36:07] Speaker 06:
In the district court you said,

[00:36:09] Speaker 06:
Defendants did not argue who shot first.

[00:36:12] Speaker 06:
No matter who shot first, they have a right to qualify to be based on what they saw.

[00:36:18] Speaker 05:
We are willing to rest just on the visuals, Your Honor.

[00:36:20] Speaker 05:
We just think that when it is clear from the video, this court should ignore that, especially where the plaintiff hasn't argued forfeiture.

[00:36:28] Speaker 05:
And finally, Your Honor, with respect to the shots after Mr. Alston fell to the ground, I would just point the court's attention to the cases we cited in our brief at pages 36 to 37 and in our reply brief at pages 25 to 28, which discuss how when there is a continuous shooting and there's no break in the action and the shooting lasts a few seconds, the courts will not bifurcate the analysis or parse a few ticks of the clock in order to determine what is a reasonable use of force.

[00:36:57] Speaker 06:
So that goes to the whether they continue to shoot him when he was down.

[00:37:00] Speaker 06:
Is it not the policy of the police when they confront what they reasonably believe is deadly force aimed at them?

[00:37:13] Speaker 06:
Is it not the policy of the police to shoot to kill?

[00:37:15] Speaker 05:
I believe so, and I'm not sure.

[00:37:18] Speaker 05:
But I do think that if an officer has a reason to believe that deadly force is necessary, they have a

[00:37:24] Speaker 05:
It's reasonable for them to continue to use the deadly force until that threat has passed, and they don't have to stop a continuous shooting to reassess.

[00:37:32] Speaker 05:
Now, of course, if it's clear that the person no longer poses a threat, then they have to stop it.

[00:37:38] Speaker 05:
But that's not the case that we have here.

[00:37:41] Speaker 05:
So if you're honest, thank you, Your Honors.

[00:37:42] Speaker 05:
The case is submitted.