[00:00:14] Speaker 01: Good morning, I'm Judge Gould and I'm presiding today. [00:00:29] Speaker 01: Delighted to be sitting with my colleagues, Judge Tallman on my right and Judge Christens [00:00:42] Speaker 01: on my left. [00:00:44] Speaker 01: Now, we have several cases for argument today. [00:00:49] Speaker 01: But before we start with arguments, let me note for the record the cases submitted on briefs. [00:01:02] Speaker 01: First, we have David Osorio. [00:01:12] Speaker 01: Zion versus Bondi that's submitted on briefs. [00:01:18] Speaker 01: We have Marie Neydon versus Bisignano submitted on briefs. [00:01:35] Speaker 01: We have US versus [00:01:45] Speaker 01: shoulder blade, submitted on briefs. [00:01:54] Speaker 01: Cheers is being argued in turn. [00:01:59] Speaker 01: I want to note the submitted case. [00:02:03] Speaker 01: I have to note all submitted cases. [00:02:07] Speaker 01: Is that it? [00:02:08] Speaker 01: Okay, so then we'll start with the first case being argued, which is a cheers. [00:02:22] Speaker 01: which is Taylor Cheers versus City of Seattle. [00:02:31] Speaker 01: And that's set for 15 minutes per side. [00:02:35] Speaker 01: So appellant can start us off, please. [00:02:44] Speaker 02: Judge Gould, and may it please the court. [00:02:46] Speaker 02: My name is Jake Wilson. [00:02:48] Speaker 02: I'm here representing the Plaintiff Taylor Cheers in this matter. [00:02:52] Speaker 02: I'd like to point out at the outset that Mr. Cheers is with us in the courtroom today. [00:02:57] Speaker 02: And I would like to reserve five minutes of my time for rebuttal. [00:03:01] Speaker 01: Okay, so I'll try to remind you if you forget, but try to [00:03:09] Speaker 01: Watch out for your clock and just stop before all the time's gone of you. [00:03:15] Speaker 01: Thank you, Your Honor. [00:03:16] Speaker 02: We'll do that. [00:03:16] Speaker 02: I think we get a yellow light when the time is up. [00:03:20] Speaker 01: Oh, yeah. [00:03:21] Speaker 01: Right, you'll get a yellow and then a red. [00:03:22] Speaker 03: You'd be amazed at how colorblind counsel are. [00:03:27] Speaker 01: Yeah, also, in the heat of your argument, you may get questions from my colleagues or me. [00:03:38] Speaker 01: Of course, we should answer fully any questions. [00:03:42] Speaker 01: And if we take up too much of your time, I'm sure I can give you an extra minute or two. [00:03:48] Speaker 01: I appreciate that, Your Honor. [00:03:52] Speaker 01: OK, so please proceed. [00:03:54] Speaker 02: OK. [00:03:55] Speaker 02: So I just want to start with this comment. [00:03:58] Speaker 02: I think that the fundamental error that permeates the [00:04:03] Speaker 02: Decision below is that the trial court really did not properly apply the summary judgment standard in this case I think that there's a failure to draw inferences in favor of mr. Cheers And I think there was a failure to view the facts in the light most favorable to mr. Cheers and in fact I would suggest that The court sort of did the opposite seems like it drew inferences in favor of the city [00:04:30] Speaker 02: and viewed the facts in the light most favorable to the city. [00:04:33] Speaker 02: And all the specific points I'm gonna make, I think, fall under that umbrella. [00:04:37] Speaker 02: So I wanted to start with that. [00:04:40] Speaker 03: Council, I'm sure you're gonna address this, but the concern that I have with the Fourth Amendment claim here is whether or not the act of using dispersal munitions in order to curb a riot constitutes a seizure within the meaning of the Fourth Amendment. [00:04:59] Speaker 03: when the intent, as I understand it, from the incident commander's orders were to disperse the crowd. [00:05:06] Speaker 03: Thanks for the question. [00:05:08] Speaker 02: Obviously, there is a boundary beyond which a police use of force, even of dispersants, as you refer to them, I would refer to this as an explosive military-style munition. [00:05:22] Speaker 03: I mean, you can characterize it however you want, but the legal issue is what's troubling me. [00:05:29] Speaker 03: and he wasn't trying to arrest him, he was trying to get him out of the area. [00:05:33] Speaker 00: We don't look at his subjective intent, we're not suggesting that, and we understand that it's less than lethal, but I think Judge Talman's question is going to be the question that we all have, so why was that a seizure? [00:05:45] Speaker 01: Let me just say I understand that the device was intended to stop the movement of [00:05:56] Speaker 01: of the person, at least that's what you argue, that that is a seizure. [00:06:05] Speaker 02: Well, a use of force causing injury under Ninth Circuit case law is in general terms considered a seizure. [00:06:13] Speaker 02: So the police don't need to arrest... Not after Sanderlin. [00:06:15] Speaker 00: It's a much more nuanced analysis, right? [00:06:18] Speaker 00: It's a much more nuanced analysis. [00:06:19] Speaker 00: And we're not going to decide an objective intent to restrain is what we're looking for, right, after Torres and then Sanderlin. [00:06:25] Speaker 00: But that's not going to be judged by what happens on the back end. [00:06:29] Speaker 00: I think that's really critical here, isn't it? [00:06:32] Speaker 02: Well, I do understand the purpose of the question and the legal issue, and it does go to the heart of the appeal. [00:06:40] Speaker 02: I think it feeds into the Puente case, which they submitted as supplemental authority in January. [00:06:48] Speaker 02: And it's one of the things I wanted to address because it wasn't addressed in the briefing. [00:06:53] Speaker 02: In that case, and I hope you will look at it carefully, there was a finding as to the individual plaintiff named Guillen, who was one of the three individual plaintiffs. [00:07:03] Speaker 02: And even in that circumstance, which I would say it was less serious of an injury than here, the court found that there was a triable issue of fact. [00:07:13] Speaker 00: How can I judge it based upon, you seem to be inviting us to look at the back end, the injury, how serious the injury was. [00:07:19] Speaker 00: We're looking right in. [00:07:21] Speaker 00: on the front end, what was the intent to restrain? [00:07:23] Speaker 02: Well, I think that on the front end, what you can please consider is that the officer who deployed this grenade had no idea what he was doing with it. [00:07:34] Speaker 02: He had no idea who he was aiming it at. [00:07:37] Speaker 02: He had no idea whether he had hit anyone. [00:07:41] Speaker 03: And so... Council, wasn't he responding to a direct order from the captain who served as the incident commander to deploy [00:07:49] Speaker 03: these devices in order to disperse the crowd. [00:07:52] Speaker 02: There certainly were command instructions. [00:07:55] Speaker 03: And then followed by public address announcements to the crowd to disperse or they would be subject to arrest under Washington law for failing to disperse. [00:08:09] Speaker 03: So that's why I'm a little bit hung up on whether or not we have a seizure here, because the intent here is to get people out of the area to disperse. [00:08:18] Speaker 03: That's the whole intent of the law. [00:08:21] Speaker 03: And as Judge Christin pointed out, we don't [00:08:24] Speaker 03: It doesn't really matter what the subjective intent of the grenadier is, who through the device, it's what he was trying to do. [00:08:32] Speaker 02: I think the logic there is a little bit concerning in that that would sort of... Are you quarreling with me or the Supreme Court? [00:08:40] Speaker 02: That's what I understand the Supreme Court law to be. [00:08:42] Speaker 02: I guess I'm really quarreling with the SPD and how they've characterized the case. [00:08:46] Speaker 02: But it is certainly true that there were dispersal orders given, but when an officer [00:08:53] Speaker 02: is deploying these serious munitions which are very foreseeable to cause significant injury okay but you keep sliding into the excessive force and that's step two we got to get past step one [00:09:06] Speaker 03: which is intent, was this done with regard to an intent to restrain or to disperse? [00:09:13] Speaker 02: I submit to you that when you are deploying very dangerous munitions like this, which are very foreseeable to cause harm, [00:09:25] Speaker 02: that is an intent to restrain because it is very foreseeable. [00:09:29] Speaker 03: What's your best case authority to split the argument? [00:09:31] Speaker 02: Well, I would point you again to the Puente case, which they submitted to you. [00:09:35] Speaker 02: And then the holding as to Guion, I think it's very similar to this case. [00:09:39] Speaker 00: Why aren't we looking at Sanderlin, which is more recent? [00:09:42] Speaker 00: The district court didn't have the benefit of Sanderlin. [00:09:45] Speaker 00: But Torres is, of course, the case that we're building on. [00:09:48] Speaker 00: And then much more recently, right, Sanderlin. [00:09:51] Speaker 00: And so [00:09:53] Speaker 00: that our court there talked about that particular device being designed to incapacitate. [00:10:00] Speaker 00: And we have this blast ball that he was using in this case under the circumstances that Judge Tallman has described. [00:10:10] Speaker 00: And he deployed it overhead, and that's not favored pursuant to the policy. [00:10:18] Speaker 00: What troubles me about this case is he did this very same thing four times. [00:10:21] Speaker 00: On one instance, he deployed it overhead and it had inflicted a very serious injury on a person, right, because here in the chest. [00:10:30] Speaker 00: And she had a serious cardiac incident. [00:10:33] Speaker 00: I think he did, objectively, the same thing on this occasion, a minute or two later. [00:10:39] Speaker 00: And the result on the back end was quite different, right? [00:10:44] Speaker 00: It landed on the ground between the two. [00:10:46] Speaker 00: Now, something that this type of munition that is basically a grenade, [00:10:51] Speaker 00: And it disperses chemical irritant. [00:10:54] Speaker 00: Landing between the police and the crowd, that's consistent with trying to push the crowd back. [00:11:01] Speaker 00: But again, I think the law tells us we don't look at the result on the back end. [00:11:06] Speaker 00: The same action, the same objective action, lobbing overhead, had it landed in the middle of that crowd, it would actually have the effect of pushing the crowd forward. [00:11:18] Speaker 00: So it's tough to judge the intent, objective intent to restrain based upon what happens on the back end. [00:11:25] Speaker 00: You see what's troubling me. [00:11:26] Speaker 00: And this seems to be the perfect case to tease out what we mean by that. [00:11:30] Speaker 02: I understand the question. [00:11:32] Speaker 02: Thank you. [00:11:35] Speaker 02: I don't think that the officer's subjective statement about what his intent was is dispositive on a summary judgment standard. [00:11:42] Speaker 02: I'd like to have him on the stand at trial. [00:11:44] Speaker 00: Well, the subjective is certainly in this case, we're not looking at his subjective intent, right? [00:11:48] Speaker 00: We're looking at objectively. [00:11:51] Speaker 02: The officer and the SPD have submitted, made statements to this court about what their intent was. [00:11:58] Speaker 02: I would submit to you that as a matter of summary judgment law on use of force, that when a police officer essentially deploys dangerous munitions recklessly, that it demonstrates an intent to restrain. [00:12:15] Speaker 02: It demonstrates at least a reckless disregard [00:12:19] Speaker 02: for whether or not this munition that I'm deploying and remember without being able to see where he was deploying it, without seeing whether he struck anybody, without knowing that he had actually seriously injured two people. [00:12:34] Speaker 02: That is an intent to restrain. [00:12:37] Speaker 00: Well, what you're doing now, I think, is you're abandoning [00:12:41] Speaker 00: the question you're invited to discuss, which is, was there a seizure? [00:12:45] Speaker 00: And I think you're now, and I think that's in this case, I think it's actually a very difficult question posed to Sanderlin for the reasons I just mentioned. [00:12:51] Speaker 00: It's the very same objective action that the officer took on two occasions. [00:12:55] Speaker 00: And I think the internal incident report indicates that one of those was deemed to be excessive. [00:13:00] Speaker 00: But setting that aside, [00:13:02] Speaker 00: Now I think you're inviting us to talk about whether or not this was an unreasonable use of force, given the circumstances of this crowd that was a very hostile crowd. [00:13:10] Speaker 00: What's your best shot on that? [00:13:13] Speaker 02: You know, we rely heavily on the Nelson case. [00:13:16] Speaker 02: I think that's a very similar case. [00:13:18] Speaker 03: Nelson did not involve the same set of facts. [00:13:21] Speaker 03: I mean, the officers were taking incoming projectiles of varying degree of severity, including up to and including incendiary devices. [00:13:31] Speaker 03: They'd been on riot duty for how many hours over how many days? [00:13:35] Speaker 03: I mean, that all has to be considered in the mix, does it not, under the Supreme Court's teachings? [00:13:42] Speaker 02: Well, I think it is rightly considered [00:13:46] Speaker 02: But I think that even when the circumstances are difficult, the police still have a responsibility to deploy force in a reasonable manner. [00:13:58] Speaker 03: Which depends upon the nature of the force that they're facing. [00:14:02] Speaker 03: And my question to you is that we don't look at it in isolation. [00:14:07] Speaker 03: In other words, just this officer. [00:14:10] Speaker 03: what, maybe 200 police officers facing off against 9,000 protesters? [00:14:16] Speaker 03: If you've ever been in that kind of a situation, this is a classic example of circumstances that are tense, uncertain, and rapidly evolving. [00:14:26] Speaker 03: And if I understand your argument correctly, you want us to say as a matter of qualified immunity law, police officers could never get qualified immunity because they use this particular munition. [00:14:39] Speaker 03: And therefore, that's a jury question and cannot be resolved on summary judgment. [00:14:43] Speaker 03: And as my colleague Judge Christin points out, I think the law is a lot more nuanced than that. [00:14:50] Speaker 02: I really want to remind the court that this isn't a qualified immunity case. [00:14:55] Speaker 02: And so we don't have any claims against the individual officers. [00:14:59] Speaker 03: It is a 1983 action, though, which alleges a constitutional violation, which gets back to my question that I asked at the very outset, which is, do we have a restraint or dispersal here? [00:15:15] Speaker 03: Is it a seizure under the Fourth Amendment in order to establish the constitutional violation for 1983? [00:15:21] Speaker 02: And I submit to you that when the police deploy a [00:15:26] Speaker 02: weapon and cause a serious injury. [00:15:29] Speaker 02: Putting aside whether it was a reasonable use of force for a second, that's a seizure. [00:15:36] Speaker 02: A party that is struck by an exploding munition who is doing nothing wrong himself. [00:15:42] Speaker 00: How do you reconcile that with Taurus? [00:15:45] Speaker 00: We're looking for an objective intent to restrain and what you're telling is if somebody gets seriously hurt, then after the fact we should deem that to have been an intentional [00:15:57] Speaker 00: Intent to restrain. [00:15:59] Speaker 02: I'm sorry if it seems circular, but if an officer uses force in a reckless, irresponsible way, which by the way the SPD found that this officer had done. [00:16:12] Speaker 00: Reckless, irresponsible character. [00:16:14] Speaker 02: I'm sorry, Your Honor. [00:16:14] Speaker 00: That characterization, reckless, irresponsible, and I acknowledge the earlier incident report, which I find certainly gives me cause for pause in this case. [00:16:24] Speaker 00: Right, but you're still determining whether something was an objective intent to restrain by looking at it on the back end. [00:16:32] Speaker 02: Well, what I'm saying is that, for example, if police officers were to put on some sort of blindfold and fire into a crowd with an intent to disperse them, it is to some extent outcome-based. [00:16:49] Speaker 02: If the bullets fly over the head of the crowd, no one has been restrained, no one has been seized. [00:16:55] Speaker 02: But if the bullets strike members of the crowd and they are injured and have to go to the hospital, they have been seized. [00:17:01] Speaker 00: So you would say that's by definition an unreasonable use of force? [00:17:05] Speaker 02: Excessive force? [00:17:06] Speaker 02: I would if someone is injured, yes. [00:17:08] Speaker 02: I am at my yellow light, and I only have less than two minutes. [00:17:14] Speaker 02: If you don't mind, I will reserve. [00:17:16] Speaker 03: I'll hold my last question for your revival. [00:17:18] Speaker 03: Thank you, Your Honor. [00:17:27] Speaker 04: Good morning may please the court Tom Miller for the city of Seattle in this matter. [00:17:33] Speaker 04: Your honors have keyed in on what is the key issue in this case and frankly the answers from counsel were more confounding and perhaps inaccurate in their statement of the law. [00:17:44] Speaker 04: As you correctly point out what plaintiff has failed to show in this case is any objective intent to seize Mr. chairs. [00:17:54] Speaker 04: All of the evidence here shows [00:17:55] Speaker 04: and intend to do quite the opposite. [00:17:58] Speaker 04: Blast balls are not impact munitions that, like 40 millimeter sponge rounds or pepper balls, things that can incapacitate. [00:18:07] Speaker 00: So, forgive me for interrupting. [00:18:08] Speaker 00: When you mentioned, I just want to make sure we're keeping up. [00:18:10] Speaker 00: When you mentioned the less than lethal munitions you just mentioned, you're calling our attention to Sanderlin? [00:18:16] Speaker 00: Yes. [00:18:17] Speaker 00: Where we said that those were intended, designed to incapacitate. [00:18:20] Speaker 00: So I'm understanding you to now be telling me that a blast ball is not. [00:18:23] Speaker 00: designed to incapacitate. [00:18:25] Speaker 00: Is that right? [00:18:25] Speaker 04: The blast ball, correct. [00:18:26] Speaker 04: The blast ball is different. [00:18:27] Speaker 04: It is a sound and light device that is intended to basically scare the crowd in situations like this and cause them to move. [00:18:36] Speaker 00: And what that does is it... The record says sound, light, and chemical irritant. [00:18:40] Speaker 00: Do I understand that correctly? [00:18:41] Speaker 04: It can be chemical irritant if it's got a payload of OC inside. [00:18:45] Speaker 04: Some of them are inert, and some have OC. [00:18:47] Speaker 00: And on this occasion, what was he deploying? [00:18:49] Speaker 04: I believe it was OC. [00:18:51] Speaker 00: Right, so it's sound, light, and chemical irritant, right? [00:18:53] Speaker 00: Correct. [00:18:53] Speaker 00: Okay, go right ahead. [00:18:54] Speaker 00: I didn't mean to interrupt. [00:18:55] Speaker 00: I just want to make sure we got the record straight. [00:18:57] Speaker 03: Which is also intended to disperse, right? [00:18:59] Speaker 03: Correct. [00:19:00] Speaker 03: If we're going to start using tear gas. [00:19:02] Speaker 00: Excuse me, Judge Tomlin. [00:19:03] Speaker 00: I didn't mean to interrupt. [00:19:05] Speaker 00: Your point was that it's intended to disperse the gas, right? [00:19:08] Speaker 00: As opposed to other types of less than lethal munitions that, like skip rounds, that disperse shrapnel. [00:19:15] Speaker 04: Correct. [00:19:15] Speaker 00: Okay. [00:19:16] Speaker 04: The blast ball, as Lieutenant Brooks explained, it separates into two hemispheres of rubber. [00:19:22] Speaker 04: It does not emit, you know, SPD doesn't use the stinger blast balls, which has little balls inside that shoot out in all directions. [00:19:30] Speaker 04: They were never using those. [00:19:31] Speaker 00: But what do we do with the fact that, you know, we are looking at objective use of force? [00:19:35] Speaker 00: And as I said in this particular fact pattern, I don't know that I've seen one like it, where this officer does basically the same thing four times. [00:19:42] Speaker 00: One time we have an internal report that indicates that it was in part because it was thrown overhead, which is disfavored but not prohibited. [00:19:51] Speaker 00: And the result was, as you know, someone was struck in the chest and I think had a cardiac incident. [00:19:55] Speaker 00: And I think the internal report indicates that that was excessive force. [00:20:00] Speaker 00: Is that right? [00:20:01] Speaker 04: It didn't say that it was excessive force. [00:20:03] Speaker 04: It just found that it was not within policy for deploying blast balls because the officer... Is that the extent of that finding? [00:20:09] Speaker 04: That's my recollection from the record. [00:20:11] Speaker 00: OK. [00:20:11] Speaker 00: I have a little bit different recollection, but just bear with me if you would. [00:20:15] Speaker 00: Sure. [00:20:15] Speaker 00: Because that's the problem for me. [00:20:17] Speaker 00: We can check the record and see exactly what they said. [00:20:19] Speaker 00: But the officer did do the same thing on this occasion, right? [00:20:23] Speaker 00: Overhead use of last ball. [00:20:25] Speaker 00: We can talk about whether it was unreasonable use of force. [00:20:28] Speaker 00: But I think the question Judge Tallman posed about whether or not this is a seizure is very tricky in this case. [00:20:36] Speaker 04: It is and it isn't. [00:20:37] Speaker 04: And what's different, well, let me first address the OPA, which is the Office of Professional Accountability's finding with respect to the fourth blast ball deployment, which as you referenced is the one that struck the woman. [00:20:48] Speaker 04: The fourth? [00:20:49] Speaker 04: I believe so. [00:20:51] Speaker 04: Okay. [00:20:51] Speaker 04: The reason for that finding was that Officer Anderson, who deployed it, [00:20:57] Speaker 04: couldn't recall and therefore couldn't articulate why he deployed that blast ball. [00:21:03] Speaker 04: As opposed to in this case, he recalled and he was looking at the video in his OPA interview that just before he deployed this blast ball, a glass bottle landed on the ground right in his vicinity. [00:21:16] Speaker 04: He deployed this blast ball to open space, and we demonstrated through the video from Mr. Neal, which I believe is at docket 12, that the blast ball bounced and then skipped right, and that's how it struck Mr. Chairs. [00:21:30] Speaker 04: He was never the intended target. [00:21:32] Speaker 00: Was there an intended target? [00:21:34] Speaker 00: I didn't understand that there was an intended target. [00:21:36] Speaker 04: There wasn't one. [00:21:37] Speaker 04: And that's the point. [00:21:38] Speaker 04: And that gets to your second question about Torres, where there's got to be a manifest intent to seize and restrain movement. [00:21:47] Speaker 00: Yes, but it wouldn't be the rule. [00:21:48] Speaker 00: It's certainly not the rule that an officer would be free to just shoot into a crowd and say, I wasn't aiming at anyone in particular. [00:21:54] Speaker 00: You're not suggesting that. [00:21:55] Speaker 00: Not at all. [00:21:56] Speaker 00: Right. [00:21:58] Speaker 00: So when we go back to this, what should we do about the fact that we have the same objective action and we can't, unless you're going to tell me that we should be looking at the back end consequences, which seems to me counterintuitive given what the Supreme Court told us in Torres, right? [00:22:15] Speaker 00: Right. [00:22:16] Speaker 00: So what I think you're, you're asking us to rely upon the fact that this particular, unlike Sanderland, that this particular less than lethal munition is one that is not designed or intended to incapacitate. [00:22:28] Speaker 00: but is intended to, with light, sound, and chemical munitions, move a crowd, not restrain a crowd? [00:22:34] Speaker 04: Correct. [00:22:35] Speaker 04: And that is the key function of these blast balls, and it is when they are used, is when line officers are being overwhelmed, they're being assaulted with rocks, bottles, fireworks, projectiles, improvised explosive devices, which is what we had on this evening. [00:22:53] Speaker 00: Could I ask you, I know I keep interrupting, forgive me, but I have a very detailed timeline, I think we all do. [00:22:59] Speaker 00: As of the time, 1205, when this blast ball was deployed, there had been a report that violence had escalated pretty significantly. [00:23:08] Speaker 00: Somebody had been shot. [00:23:09] Speaker 00: Somebody had driven into the crowd. [00:23:11] Speaker 00: What I can't tell from the record that I have is whether Officer Anderson knew that. [00:23:17] Speaker 00: All things. [00:23:18] Speaker 04: That was broadcast over the radio. [00:23:21] Speaker 04: I can't direct you to a certain spot in the record where you can say, yes, he knew. [00:23:26] Speaker 00: Was he asked at that at his deposition? [00:23:28] Speaker 00: I can't see it. [00:23:28] Speaker 04: He wasn't deposed. [00:23:30] Speaker 00: I have a statement from him, I guess, is what I'm reading. [00:23:32] Speaker 04: That's his OPA interview. [00:23:33] Speaker 00: Oh, that's an OPA interview. [00:23:35] Speaker 00: So he doesn't talk about having known those facts there, and there's no other place for me to look? [00:23:40] Speaker 04: Not that I'm aware of. [00:23:42] Speaker 04: But it was generally known. [00:23:44] Speaker 04: It was broadcast. [00:23:44] Speaker 04: It's logged in the Spock log, which I believe is attached to Captain Allen's declaration. [00:23:50] Speaker 04: These officers are all wearing radios. [00:23:52] Speaker 04: They know what's going on. [00:23:54] Speaker 04: And that happened. [00:23:55] Speaker 04: The shooting happened earlier in the evening where a driver shot a protester. [00:23:59] Speaker 04: That was at about 8.20 p.m. [00:24:03] Speaker 04: And yet, so this is, as Judge Talman pointed out, the very definition of a tense, uncertain, and rapidly evolving situation. [00:24:13] Speaker 04: Officers are under routine and repeated barrage for hours and hours and hours as these protesters defy the lawful dispersal order that was given at 12 or 4 a.m. [00:24:24] Speaker 04: And what we showed through our materials was that despite those orders, which can be heard on Mr. Chairs' own video, he remained there for a number of minutes rather than dispersing as ordered, as did the large majority of the crowd, which is why the blast balls were deployed. [00:24:43] Speaker 04: So we do not have a seizure here, unlike in, well, as I've talked about already, these blast balls are intended to disperse. [00:24:53] Speaker 04: They're not intended to apprehend, unlike a bullet, even a pepper ball, a 40 millimeter projectile, which are all pain compliance tools that cause the person to stop what they're doing and remain in place. [00:25:07] Speaker 00: What's the best record site for something that tells us that these were designed [00:25:13] Speaker 00: for that purpose? [00:25:14] Speaker 00: So that would be the comparable record site to the Sanderland holding? [00:25:19] Speaker 04: It would be in Lieutenant Brooks's declaration and also the declaration of our expert, Travis Norton, both of which are in the record, obviously. [00:25:29] Speaker 00: I've seen those. [00:25:29] Speaker 00: I just wondered if there was something from the manufacturer. [00:25:32] Speaker 04: Travis Norton? [00:25:33] Speaker 04: Correct. [00:25:34] Speaker 01: Council, I have a question for you. [00:25:37] Speaker 01: Yes, your honor. [00:25:37] Speaker 01: When this kind of device is lobbed into a crowd, is the officer's intent to stop the movement of the crowd, stop the crowd from moving forward? [00:25:56] Speaker 04: It's not to stop the movement of the crowd. [00:25:59] Speaker 04: It's to get the crowd moving away from the line officers, which serves two functions. [00:26:06] Speaker 04: One, it creates time, distance, and shielding. [00:26:10] Speaker 04: The further away the crowd is, the less chance there is that they can do immediate harm to the officers. [00:26:15] Speaker 04: But it also prevents them, if they're moving, they can't then [00:26:19] Speaker 03: Continue with assaults if you know obviously if they're running they can't drop their backpack pull out a rock and throw it at the officers So it serves both of those functions and the crowd had breached the police barriers that had been erected around the precinct had it not they'd taken down the fencing right which was the precincts at 12th and and Pike and this occurred or at pine and this occurred at 11th and pine right there block there within a block of the police precinct and [00:26:48] Speaker 04: They were, and there were threats, there were credible threats of protesters threatening to burn down the East Precinct, which was obviously a huge concern. [00:26:57] Speaker 04: This was more than just a few, you know, malcontents lobbing a plastic water bottle or something at officers. [00:27:03] Speaker 04: This was far more dangerous and destructive that required immediate police response to cease these types of actions. [00:27:10] Speaker 03: And the incident commander, I think, was he deposed, the captain? [00:27:14] Speaker 03: No. [00:27:15] Speaker 03: Do we have a statement from him? [00:27:17] Speaker 04: Captain Allen gave a declaration which attached his written narrative of that evening's events. [00:27:24] Speaker 03: And his concern was that he was trying to [00:27:26] Speaker 03: The crowd was advancing on his line of officers and towards the precinct. [00:27:31] Speaker 03: He was trying to get the crowd to move back and away. [00:27:34] Speaker 04: Certainly one of the concerns in addition to projectiles. [00:27:38] Speaker 04: Correct. [00:27:39] Speaker 00: Yeah. [00:27:39] Speaker 00: So we have a second claim here in addition to excessive force, which is First Amendment retaliation. [00:27:45] Speaker 00: Our circuit is well, I think every circuit who has addressed the issue has held that citizens have a right to be present to film police officers performing official duties. [00:27:56] Speaker 00: And I don't see anything in the record here that indicates that Mr. Chivers was part of that protest. [00:28:01] Speaker 00: He was off to the side on the sidewalk and filming it, right, just to be clear. [00:28:05] Speaker 00: So he's brought a First Amendment retaliation claim. [00:28:08] Speaker 00: And I take it the city's response is that he ignored a dispersal order, right, that cautioned him about the use of these munitions. [00:28:16] Speaker 00: And so, but on the retaliation claim, I think your argument is slightly different, that there was not an intent to [00:28:26] Speaker 00: aim for him? [00:28:28] Speaker 04: Correct. [00:28:28] Speaker 04: Well, there's two arguments. [00:28:31] Speaker 04: One, you're correct. [00:28:32] Speaker 04: There was a lawful dispersal order. [00:28:33] Speaker 04: It was therefore a crime to remain. [00:28:35] Speaker 04: So he didn't have a First Amendment right to remain there and film. [00:28:38] Speaker 00: Well, it sort of depends, because that dispersal order is within one minute. [00:28:43] Speaker 00: And it's captured on his iPhone, I think, the video that he was, you can hear it. [00:28:49] Speaker 00: And he says he didn't hear it. [00:28:50] Speaker 00: And I can imagine, if you would, just think of a hypothetical situation where there's a melee [00:28:56] Speaker 00: a lot of chaos. [00:28:58] Speaker 00: So I'm going to set that aside for a minute and ask you, in that hypothetical circumstance, wouldn't he have another problem with his First Amendment claim? [00:29:06] Speaker 04: Huge, which is the absolute absence of any evidence of retaliatory intent. [00:29:11] Speaker 04: In other words, there's no evidence in this record that the reason that [00:29:15] Speaker 04: any munitions were deployed, let alone deployed at him, which they weren't, was because of some act that he was engaging in, in terms of a protected speech. [00:29:25] Speaker 04: He, by his own concession and his deposition, Mr. Chairs, conceded he wasn't there to convey any First Amendment message, and there's certainly no evidence of any retaliation. [00:29:35] Speaker 00: He doesn't have to be there to convey a First Amendment message. [00:29:37] Speaker 00: Under our case law, filming is a First Amendment protected right. [00:29:41] Speaker 00: filming a public event. [00:29:42] Speaker 00: So he wouldn't have to have that. [00:29:44] Speaker 00: But I think what he would have to have is to be able to show that there was an intent to silence him. [00:29:49] Speaker 00: In other words, that they were perhaps aiming at him because he was exercising his First Amendment right. [00:29:56] Speaker 04: Right. [00:29:57] Speaker 04: And there is no evidence that Officer Anderson or any other officers deployed any of their less lethal munitions because of people filming or exercising any sort of free speech activity. [00:30:08] Speaker 04: So the claim fails on that front. [00:30:10] Speaker 04: And we also have to be mindful that this is a Monell claim that plaintiff has brought. [00:30:15] Speaker 04: This is a municipal liability claim. [00:30:16] Speaker 04: There are no claims against the individual officers. [00:30:20] Speaker 04: And as Judge King held, obviously, absent a constitutional violation, there's no Monell liability. [00:30:26] Speaker 04: And then moving past that, we don't have unconstitutional customer policy. [00:30:32] Speaker 04: I'm happy to entertain any other questions that the panel may have. [00:30:35] Speaker 01: Yeah, I don't. [00:30:37] Speaker 04: Nothing. [00:30:37] Speaker 04: Thank you. [00:30:38] Speaker 01: They will thank you. [00:30:38] Speaker 04: Thank you for your time. [00:30:45] Speaker 01: Yes, we have some rebuttal. [00:30:48] Speaker 03: Thank you. [00:30:50] Speaker 03: So my question was how would you [00:30:54] Speaker 03: Square your argument with the Supreme Court's decision in Lewis versus the County of Sacramento that was the case involving that the high-speed chase of the fleeing Motorcyclist and the police officer nudged the back wheel of the motorcycle the passenger was ejected Seriously injured and the Supreme Court said there's no section 1983 liability for that Was that based on the seizure ruling? [00:31:20] Speaker 03: I'm I don't think it goes that far but [00:31:22] Speaker 03: Your argument, as I understand it, would result in a complete reversal of what the Supreme Court decided in Lewis. [00:31:30] Speaker 02: Well, I'm not here arguing for a reversal of the Lewis case. [00:31:35] Speaker 02: But obviously, the facts are different. [00:31:40] Speaker 02: You've got an automobile engaged in active criminality, and the police are responding to an eluding automobile. [00:31:49] Speaker 03: You don't think that some of the people in this crowd were engaged in an ongoing active crime? [00:31:55] Speaker 02: I really want to end with this. [00:31:59] Speaker 02: Constitution requires that when police use significant force, there's some sort of particularized assessment and evaluation of the threat posed by the person who the force is targeted at, the person who's ultimately injured. [00:32:15] Speaker 02: Cheers wasn't around when all this happened at the protest, all of the facts they're relying on to justify the officers' deployment of grenades. [00:32:26] Speaker 02: He wasn't even there. [00:32:27] Speaker 02: And the video is very clear. [00:32:29] Speaker 02: He wasn't engaging in any of the activity that the officers complain, but the record shows that these acts were ongoing all night long. [00:32:39] Speaker 02: But can that be, can that then remove constitutional protection? [00:32:44] Speaker 02: from someone in that crowd who's not engaged in criminality and who was not even there when the criminality was occurring and who the video very clearly shows was on the sidewalk. [00:32:56] Speaker 02: He was not directing any aggressive behavior towards the police. [00:33:00] Speaker 02: He didn't engage in any criminality whatsoever. [00:33:03] Speaker 03: But then if that's the case, then how can you argue that there was an intent to restrain him by using these munitions? [00:33:11] Speaker 02: Because if the police do not make [00:33:14] Speaker 02: a particularized assessment of the threat of [00:33:18] Speaker 02: a person to whom they're deploying force. [00:33:21] Speaker 03: In the middle of a crowd of rioters where the people who are throwing the projectiles are essentially using the cover of the crowd as a blanket, if you will, to protect them. [00:33:30] Speaker 02: I would submit that even in a circumstance like that, that is admittedly very difficult and challenging for the police to deal with and respond to. [00:33:38] Speaker 03: And very difficult for a court to write an opinion on what can and cannot be done under those circumstances. [00:33:44] Speaker 02: But it can't be a constitution-free zone. [00:33:47] Speaker 02: Even if they want to take steps to disperse the crowd, they want to take steps to arrest certain of the people in the crowd. [00:33:55] Speaker 03: In the face of somebody who doesn't obey the dispersal order and immediately remove themselves from the danger. [00:34:03] Speaker 02: Well, as Judge Kristen pointed out, that dispersal order was given very shortly before this happened. [00:34:09] Speaker 00: But it is captured on his own video. [00:34:11] Speaker 00: And so I engage in this hypothetical, but assume that didn't happen. [00:34:14] Speaker 00: You did just make a comment that he hadn't violated any law. [00:34:18] Speaker 00: And opposing counsel argues, well, he violated a dispersal order. [00:34:21] Speaker 00: So what do we do with that? [00:34:22] Speaker 00: And this dispersal order, by the way, unlike the Davis case, where they didn't tell the students how to leave, you know, and they were sort of gridlocked before they started fired those munitions. [00:34:33] Speaker 00: In this recording, we can hear the officers telling people disperse, and you can do that by going this route or that route, or here's the way out. [00:34:41] Speaker 00: So what about that record? [00:34:44] Speaker 02: A dispersal order given by the police does not generate a constitution-free zone in the area where the dispersal order was given. [00:34:53] Speaker 03: You don't have a constitutional right to disobey a dispersal order, counsel. [00:34:56] Speaker 02: That's the conundrum we're in here. [00:34:58] Speaker 02: Well, again, I would submit to you, one, Mr. Cheers really didn't do anything wrong. [00:35:03] Speaker 02: It's not his fault that he was assaulted. [00:35:05] Speaker 02: Comply with the dispersal order? [00:35:07] Speaker 02: Secondly, he hasn't been charged with failure to dispose. [00:35:11] Speaker 03: You don't have to be. [00:35:12] Speaker 03: In terms of the from the standpoint of the officers as to when it's time to employ force. [00:35:19] Speaker 02: Well, again, a dispersal order does not generate a constitution free zone, even then. [00:35:26] Speaker 02: progressing to a use of force to try to disperse that crowd. [00:35:28] Speaker 03: Your argument is becoming circular. [00:35:30] Speaker 03: I'm not sure we're going to resolve it by going back and forth on this one. [00:35:34] Speaker 03: We understand your argument. [00:35:35] Speaker 02: Even when there might be some justification for a use of force or for an arrest, the police are still bound to honor the Constitution in how they use force and in metering the force they use. [00:35:47] Speaker 03: And the Fourth Amendment specifically says we look at reasonableness. [00:35:52] Speaker 02: And I submit to lob exploding flashbang grenades without looking where you're throwing them, without visualizing who you're hitting. [00:36:02] Speaker 02: What if they'd use a fire hose? [00:36:05] Speaker 02: I think that probably a similar analysis would apply. [00:36:08] Speaker 02: It's a slightly different use of force than a blast ball. [00:36:12] Speaker 03: Well, you get hit in the chest with a three-inch hose line, and you're going to go down. [00:36:18] Speaker 03: I think the same analysis would, in general, apply. [00:36:20] Speaker 03: I'd hit your head on the sidewalk as you're falling. [00:36:22] Speaker 03: That's right. [00:36:23] Speaker 03: OK. [00:36:23] Speaker 03: That's right. [00:36:24] Speaker 02: I mean, it's dangerous. [00:36:25] Speaker 02: And that's why, ultimately, it's why OPA sanctioned the officer. [00:36:30] Speaker 02: And ultimately, it's why I would encourage you [00:36:35] Speaker 02: to not be a recommended that did the chief impose a sanction on the office I believe so yeah I he appealed and I don't believe his appeal was successful right it you know lobbying grenades into a crowd without watching where you're lobbying them the constant and somebody to people are seriously injured neither of whom was apparently engaged in anything other than being present [00:37:03] Speaker 03: in violation of the dispersal order. [00:37:06] Speaker 02: Where the officer didn't even know he had hit anyone. [00:37:10] Speaker 02: The Constitution has to offer a remedy for people injured in that situation. [00:37:15] Speaker 03: I have a heck of a negligence claim. [00:37:17] Speaker 03: The question is, do you have a constitutional violation? [00:37:19] Speaker 01: Okay, counsel, let me just comment. [00:37:23] Speaker 01: I think you're, I see the red light. [00:37:26] Speaker 01: Yes. [00:37:26] Speaker 01: You're now about five minutes beyond your time, but of course it's proper for you to answer fully to any questions. [00:37:36] Speaker 01: Let me ask my colleagues to just tell Judge Christen to have any further questions. [00:37:46] Speaker 01: If not, then we should bring the argument to a close. [00:37:49] Speaker 02: And I very much thank the court for the accommodation on time. [00:37:53] Speaker 02: I appreciate that. [00:37:54] Speaker 01: Thank you. [00:37:55] Speaker 01: Thank you very much, counsel. [00:37:57] Speaker 01: Thank you both. [00:37:57] Speaker 01: This case shall be submitted.