[00:00:00] Speaker 02:
Good morning, Your Honours.

[00:00:01] Speaker 02:
My name is Jesus, Jesse Valdez, here on behalf of the Appellants.

[00:00:04] Speaker 02:
Could you speak up, please?

[00:00:07] Speaker 02:
Can you hear me better now?

[00:00:08] Speaker 02:
Yes.

[00:00:08] Speaker 02:
Yeah, sorry.

[00:00:09] Speaker 02:
My name is Jesus, Jesse Valdez, here on behalf of the Appellants, the estate of Sean Furr, the person who represented Mr. Gyasi, Mr. Jason Furr.

[00:00:17] Speaker 03:
You're going to need to keep your voice up while you're speaking.

[00:00:19] Speaker 03:
It's both, maybe you need to get closer to the microphone, but you're just going to need to speak up, please.

[00:00:24] Speaker 02:
All right.

[00:00:24] Speaker 02:
I have a sore throat, so I have a cough drop, so I'm trying, so I apologize.

[00:00:28] Speaker 02:
And here also on behalf of Davanta, I would like to reserve two minutes for rebuttal.

[00:00:34] Speaker 03:
Please keep track of your own time.

[00:00:35] Speaker 03:
Thank you.

[00:00:36] Speaker 02:
Thank you.

[00:00:37] Speaker 02:
We are here today because we believe the District Court erred when it granted summary judgment to the defendant's City of Seattle when there was genuine issues of material fact in dispute.

[00:00:49] Speaker 02:
Also, some of the material facts that were in dispute were recorded on a body cam, which is objective evidence.

[00:00:56] Speaker 02:
And we believe the court disregarded that objective evidence.

[00:01:00] Speaker 02:
That should have went to the jury and not to the fact finder.

[00:01:04] Speaker 02:
The judge should have decided those issues.

[00:01:06] Speaker 02:
Some of those facts that were disputed.

[00:01:09] Speaker 02:
Sean turns the corner slowly, both hands clearly visible, holding his baby daughter unarmed, no weapons in his hands.

[00:01:20] Speaker 02:
The city's contention, Officer Zach says, I couldn't see his hand.

[00:01:24] Speaker 02:
It was underneath, below somewhere.

[00:01:27] Speaker 02:
That's why I took the shot.

[00:01:29] Speaker 02:
I couldn't see his hands.

[00:01:31] Speaker 02:
The video evidence contradicts that.

[00:01:34] Speaker 04:
Another dispute is... The answer might be, I didn't see his hands rather than I couldn't see his hands.

[00:01:41] Speaker 02:
Well, what he stated, and he says, I didn't see his hands.

[00:01:44] Speaker 02:
And because I couldn't see his hands, that's why I took the shot.

[00:01:47] Speaker 02:
But the video contradicts that.

[00:01:50] Speaker 02:
It clearly shows both hands.

[00:01:54] Speaker 00:
I'm obviously incredibly sympathetic both to the baby, the mother, and your client.

[00:02:02] Speaker 00:
But we focused on this little turning of the corner video.

[00:02:06] Speaker 00:
And my question really is a broader one, and that is why don't we look at the fact that he fled from police for over 30 minutes.

[00:02:13] Speaker 00:
He was dangerously holding the baby at some point, you know, almost like dangling the baby.

[00:02:19] Speaker 00:
He had a gun.

[00:02:20] Speaker 00:
At whom he fired it is unclear, but he had at one point fired a gun.

[00:02:27] Speaker 00:
So my question is why we don't look at the totality of the circumstances rather than telescoped at this moment as they turn the corner in that corner.

[00:02:38] Speaker 02:
Well, we will, Your Honor, totality of the circumstances.

[00:02:40] Speaker 02:
And those are the three factors.

[00:02:42] Speaker 02:
Severity, where he was actively fleeing in the immediacy, threat of harm.

[00:02:47] Speaker 02:
And the biggest factor the US Supreme Court has said is, look at the immediacy, the moment the Ninth Circuit is bound, even in Boss versus City of... And why isn't there a threat of harm to the babies?

[00:02:58] Speaker 02:
Because if we go back to the severity, the very beginning, one of the issues was kidnapping.

[00:03:04] Speaker 02:
That's what they alleged and we challenge that because Sean is the biological father.

[00:03:09] Speaker 02:
They could have confirmed that there was an allegation that said, let's assume it's not kidnapping.

[00:03:15] Speaker 00:
It's that a guy with a gun is fleeing with the baby and there's potential harm to the baby.

[00:03:22] Speaker 00:
It doesn't matter whether the biological father or not in that circumstance, right?

[00:03:27] Speaker 02:
In that circumstance, yes, but in this circumstance it does matter because if it's a biological father, just like me, I'm divorced and I said I took my child and my ex-wife says, oh, he kidnapped his daughters.

[00:03:37] Speaker 02:
No.

[00:03:38] Speaker 00:
I already had asked you to ignore the kidnapping.

[00:03:42] Speaker 00:
And just think about the circumstance in which the officers come across this gentleman.

[00:03:49] Speaker 02:
Because that goes severity.

[00:03:50] Speaker 02:
The very first thing is severity.

[00:03:52] Speaker 02:
They jumped and artificially went to the highest severity they could.

[00:03:55] Speaker 02:
Kidnapping.

[00:03:56] Speaker 02:
Now, if they said a subological father, the severity comes down because that's how it was framed.

[00:04:00] Speaker 02:
What's the severity of the issue, right?

[00:04:03] Speaker 02:
And the next one was whether he was actively evading.

[00:04:07] Speaker 02:
And at that point,

[00:04:09] Speaker 02:
That factor is, do you take the 30 minutes, or do you take it around the corner?

[00:04:12] Speaker 00:
Because of course- But do you take the totality?

[00:04:14] Speaker 02:
Let's take the totality, but still the totality says when at what moment, because we are saying he surrendered.

[00:04:21] Speaker 02:
He was attempting to comply.

[00:04:23] Speaker 02:
Now, if he's attempting to comply and he's surrendering, that's a different matter.

[00:04:27] Speaker 02:
Even the Sixth Circuit have said that in Williams v. City of Burlington.

[00:04:30] Speaker 02:
When somebody's attempting to surrender, and they have surrendered, any Delhi force is unreasonable force.

[00:04:37] Speaker 02:
And even in Gardner,

[00:04:38] Speaker 02:
which they have cited, where he was actually fleeing and he was going away and he was a felon.

[00:04:43] Speaker 02:
They said, no, if he's no immediate threat, that force was unconstitutional.

[00:04:48] Speaker 02:
And that's what we're saying here.

[00:04:50] Speaker 04:
As I see the video of the shooting, it's pretty clear at the time that he's shot, he's no immediate threat to the officers.

[00:04:58] Speaker 04:
He's holding a baby.

[00:05:00] Speaker 04:
He's at some distance from them.

[00:05:01] Speaker 04:
We often see cases, well, he's close enough, maybe you could have run at them with a knife and so on, but he's holding a baby, he's some distance away, the officer shoots him within about a second.

[00:05:13] Speaker 04:
If we're worried about safety of the baby, one of the things that strikes me is he's been holding that baby for half an hour as he's eluding the officers.

[00:05:24] Speaker 04:
He's still holding the baby and the baby is unharmed.

[00:05:28] Speaker 02:
And that's what we were wanting to say, Your Honor, is Scott versus Harris, the Supreme Court.

[00:05:32] Speaker 02:
They had said, what does the video show?

[00:05:35] Speaker 02:
What does the video actually show?

[00:05:36] Speaker 02:
Does it blatantly contradict our position?

[00:05:40] Speaker 02:
We say no.

[00:05:41] Speaker 02:
That video does not blatantly contradict our position.

[00:05:43] Speaker 02:
If that's the case, you've got to believe the plaintiff's version of the events.

[00:05:47] Speaker 02:
Also, during this whole time, the 30 minutes, there's this accusations about jumping fences, going over scaling fences.

[00:05:54] Speaker 02:
What we have is no evidence that any auction

[00:05:56] Speaker 02:
any officer actually saw that.

[00:05:58] Speaker 02:
That's how we distinguish it from Forret.

[00:06:00] Speaker 02:
And Forret, officers actually saw them scaling fences, jumping fences, going away.

[00:06:05] Speaker 02:
And even in Forret, he said, yes, I was consciously evading.

[00:06:09] Speaker 02:
I was trying to get away.

[00:06:10] Speaker 03:
And he also had... Even if we assume that there is a constitutional violation, what's your best case that shows it was a clearly established right?

[00:06:20] Speaker 02:
Well, the best case, and that was another... Those are two good questions, because you're going to go

[00:06:27] Speaker 02:
to George versus Morris, 9th Circuit.

[00:06:30] Speaker 02:
But you're also going to look at the Esteta-Aggler case.

[00:06:34] Speaker 03:
OK.

[00:06:34] Speaker 03:
And George versus Morris, even if we were to agree with you that the moment when the shot was fired, there is a question about whether or not the officer believed there was going to be harm to the child in your client's case, which might be analogous to whether or not a gun is pointed at an officer or the ground.

[00:06:59] Speaker 03:
In George, there wasn't sort of this preceding 40 minutes of a chase in which there had been directives and commands to stop.

[00:07:10] Speaker 03:
I think 20 seconds before the shot was fired, the officers commanded Mr. Furr to stop.

[00:07:17] Speaker 03:
He didn't stop.

[00:07:18] Speaker 03:
He continued to run.

[00:07:20] Speaker 03:
And so I'm having difficulty, even if I were to look at just the moment in time, I can see sort of the similarity between

[00:07:28] Speaker 03:
George, the facts in George and the facts in this case.

[00:07:30] Speaker 03:
But in George, we don't have this longer period of time that we need to take into account.

[00:07:35] Speaker 03:
And, you know, the Supreme Court has repeatedly chastised courts for expansively considering the clearly established prong to include circumstances that are different than ones where courts have found there's a clearly established right.

[00:07:52] Speaker 03:
So how do we use George as a case that clearly establishes the right in this case?

[00:07:58] Speaker 02:
The clearly established prong cannot even be met under this Ninth Circuit under the estate of Agler versus County of Riverside.

[00:08:05] Speaker 02:
It says it cannot be resolved on summary judgment if the facts are clearly disputed.

[00:08:14] Speaker 02:
The quintessential question of fact is reserved for the jury and precludes summary judgment on the excessive force claim.

[00:08:20] Speaker 02:
That was a level of threat.

[00:08:21] Speaker 02:
What level of threat is he at that moment?

[00:08:24] Speaker 02:
And even the Ninth Circuit has said no, that's a question of fact for the jury.

[00:08:28] Speaker 02:
Another case that I can cite is Poole versus Shreveport.

[00:08:33] Speaker 02:
That was where Mr. Poole was driving a truck, right?

[00:08:37] Speaker 02:
A neighbor sees him driving back and forth, calls the officers and said, I'm concerned about this.

[00:08:42] Speaker 02:
Officer Vestino.

[00:08:45] Speaker 02:
He goes behind and he parks behind Mr. Poole, turns his lights on.

[00:08:48] Speaker 02:
Mr. Poole doesn't stop.

[00:08:49] Speaker 02:
Mr. Poole is actually on parole, so he's concerned.

[00:08:52] Speaker 02:
He's having suicidal thoughts, drives off.

[00:08:55] Speaker 02:
Six other officers come and join Officer Brasile.

[00:08:59] Speaker 02:
Mr. Poole is still driving his truck.

[00:09:00] Speaker 02:
He leads them on this chase for more than 15 minutes, I believe.

[00:09:04] Speaker 02:
Going and avoiding the traffic signs, they put spikes, strips out, goes on the wrong side.

[00:09:09] Speaker 02:
He drives over two lawns for 15 minutes.

[00:09:11] Speaker 02:
All of a sudden, he parks, jumps out quickly, as the court said hastily, and goes to the back of his truck, puts his hands into the bed of the truck.

[00:09:19] Speaker 02:
And this is where the divergence of the cases go.

[00:09:22] Speaker 02:
The officer says, I couldn't see his hands.

[00:09:25] Speaker 02:
I told him to stop, show me your hands.

[00:09:27] Speaker 02:
He did it, he turned, I shot.

[00:09:30] Speaker 02:
That case, there was also objective evidence, the body cam, the dash cam video.

[00:09:34] Speaker 02:
And the Fifth Circuit said, look at the objective evidence.

[00:09:37] Speaker 02:
What does the objective evidence says?

[00:09:38] Speaker 00:
The objective evidence... One of the difficulties I have on the qualified immunity is that we have all these cases, but most of them relate to officer safety, which we don't really have here.

[00:09:52] Speaker 00:
And we have Officer Zek saying he feared the baby would be used as a hostage.

[00:09:58] Speaker 00:
So do you have any other cases that you can point us to that would really bring up this situation where we're focused on the baby and not the officers?

[00:10:09] Speaker 02:
And that's what we're trying to say, Your Honor.

[00:10:11] Speaker 00:
No, I mean, first, answer my question.

[00:10:13] Speaker 00:
Do you have any cases that I should be looking at with respect to a potential hostage, a baby, a third party?

[00:10:21] Speaker 02:
Well, I have it where there's third parties in their dismissive dispute.

[00:10:25] Speaker 02:
And that's why I said George.

[00:10:26] Speaker 02:
And then there's also Hayes versus County of San Diego, where the court has said, look, we know these situations might be potentially volatile.

[00:10:35] Speaker 02:
We understand that.

[00:10:36] Speaker 02:
There's maybe a weapon involved.

[00:10:38] Speaker 02:
But I just said officers must use deadly force against threatening suspects.

[00:10:42] Speaker 02:
Even though suspects are armed, they can't use deadly force.

[00:10:45] Speaker 00:
What about with Hayes v. San Diego?

[00:10:48] Speaker 00:
Does that involve a hostage or a third party or is that the officer directly with the individual being pursued?

[00:10:56] Speaker 02:
That's an officer, but I also want to say on this.

[00:10:59] Speaker 00:
I mean, so I'm trying to get, we have to get a little more granular because we have, we know all these cases about officer safety concern about warnings that should be giving that sort of thing.

[00:11:13] Speaker 00:
But I'm really focused because of what the Supreme Court has said on this more specific issue of a third party or a hostage.

[00:11:20] Speaker 00:
And I'm looking for a case that would have those contours and I guess you're telling me we don't have those.

[00:11:27] Speaker 00:
We just have to analogize, is that right?

[00:11:29] Speaker 00:
That's what I believe, Your Honor.

[00:11:30] Speaker 03:
What would you say about the Supreme Court's decision in Casella v. Hughes, which is a case where officers had mere seconds to assess the potential danger to a bystander, even though the officers themselves were in no apparent danger?

[00:11:46] Speaker 03:
Isn't that a case where the Supreme Court found that the right was not clearly established?

[00:11:52] Speaker 03:
How do you distinguish this case from Casella?

[00:11:56] Speaker 02:
how we distinguish this case from this tall as the bystander, because in this case, we still have a subjective interpretation.

[00:12:03] Speaker 02:
And that's why we have a video evidence here.

[00:12:06] Speaker 02:
I don't know if costella there was a video evidence here's there's a video evidence, and that's what we're saying that's reserved for the jury right now We're making interpretations.

[00:12:13] Speaker 02:
He's using the child as a shield who's making that interpretation.

[00:12:17] Speaker 02:
That's a subjective Where how is that the what is the objective evidence say look at the video?

[00:12:23] Speaker 02:
If those are negative facts and the jury comes to that conclusion then we'll deal it, but at that same point

[00:12:28] Speaker 02:
What even the Supreme Court has said in Toland versus Cotton says, if there's material facts in dispute, look in favor of the non-moving party.

[00:12:36] Speaker 02:
Because in Toland, when he was 17-year-old, was driving his pickup truck, and the officer pulled over and said, hey, this is a stolen truck.

[00:12:43] Speaker 02:
Get out, hands up.

[00:12:44] Speaker 02:
He was at his home.

[00:12:45] Speaker 02:
And even his parents come out and said, no, there's nothing wrong.

[00:12:48] Speaker 02:
He goes, that's my truck.

[00:12:49] Speaker 02:
They're like, no, get your hands down.

[00:12:51] Speaker 02:
At that point, there's a dispute as to what happened.

[00:12:54] Speaker 02:
Officer claims, I just grabbed the mother.

[00:12:56] Speaker 02:
She fell down.

[00:12:57] Speaker 02:
That's how she got injured.

[00:12:59] Speaker 02:
Toland said, no, he grabbed my mother, threw her down.

[00:13:01] Speaker 02:
That's how she got the bruises.

[00:13:03] Speaker 02:
And even the Supreme Court in Toland versus Cotton has said in excessive forces case where they deny qualified immunity and deny summary judgment says believe the non-moving party their version of events and then even that would go over that would be US for Scott versus Harris.

[00:13:19] Speaker 02:
What does the objective evidence say that goes to the jury?

[00:13:23] Speaker 02:
So the Supreme Court has held look

[00:13:25] Speaker 02:
When there's disputed facts, that goes to the jury.

[00:13:29] Speaker 02:
If there's objective evidence, that's like another witness.

[00:13:31] Speaker 02:
What is a witness going to say?

[00:13:33] Speaker 02:
That goes to the jury.

[00:13:34] Speaker 02:
Here, the court disregarded that and said, no, I can interpret that because they said, I can see he's eyeing the fence.

[00:13:40] Speaker 02:
I can see he's going to escape.

[00:13:42] Speaker 02:
Those are all subjective.

[00:13:43] Speaker 02:
That's interpretations.

[00:13:45] Speaker 02:
That's credibility.

[00:13:46] Speaker 02:
That's what the court has done.

[00:13:47] Speaker 02:
And that's reserved for the jury, not a judge.

[00:13:50] Speaker 03:
Would you like to reserve the balance of your time for rebuttal?

[00:13:53] Speaker 02:
Yes.

[00:13:53] Speaker 02:
Thank you.

[00:13:53] Speaker 02:
Thank you.

[00:14:07] Speaker 03:
Do you want to move the podium down?

[00:14:09] Speaker 01:
I was just, can you hear me okay?

[00:14:11] Speaker 03:
I can hear you.

[00:14:12] Speaker 03:
Are you comfortable?

[00:14:13] Speaker 03:
I think this is fine.

[00:14:14] Speaker 01:
Okay.

[00:14:14] Speaker 03:
Thank you.

[00:14:14] Speaker 03:
All right.

[00:14:14] Speaker 01:
Thank you.

[00:14:17] Speaker 01:
May please the court, Rebecca Whedin on behalf of the defendant city of Seattle and Sergeant Noah Zek.

[00:14:25] Speaker 01:
There are two overarching reasons why the district court's summary judgment order should be affirmed in this case.

[00:14:32] Speaker 01:
And the first is that, um,

[00:14:36] Speaker 01:
There are alternate grounds supporting the decision below that have been waived by the plaintiffs in this case.

[00:14:45] Speaker 01:
So it's the city's position that the court does not even need to get to the merits of the arguments based on that waiver.

[00:14:54] Speaker 01:
Generally, a district court's order will not be disturbed on appeal if it rests on grounds that the appellant did not oppose in the district court and or raise in the opening brief.

[00:15:05] Speaker 01:
Here, the district court's order rests on grounds that were completely unopposed below by the plaintiffs, and with one possible exception, were not argued in the opening brief.

[00:15:19] Speaker 01:
These unchallenged grounds taken together dispose of all of plaintiff's claims.

[00:15:24] Speaker 01:
Thus, the court need not reach the merits of the case, which is the second route that supports affirmance.

[00:15:35] Speaker 01:
The city argued below that the plaintiff estate and plaintiff Defante Fuhrer were not properly before the court because the estates had not appeared through an authorized personal representative and the amended complaint that named plaintiff Defante Fuhrer as a plaintiff had never been filed.

[00:15:58] Speaker 00:
So those two.

[00:15:59] Speaker 00:
I know the city raised this in

[00:16:03] Speaker 00:
I guess a footnote in the motion for summary judgment.

[00:16:06] Speaker 00:
And then later around the time before the summary judgment was decided, counsel brought to the attention that through the superior court there had been an appointment of an appropriate representative, right?

[00:16:24] Speaker 01:
Your Honor, there is no evidence in the record that that was brought to the court's attention, certainly not in conjunction with the summary judgment motion.

[00:16:32] Speaker 00:
Well, I don't think it was in conjunction with the summary judgment.

[00:16:36] Speaker 00:
It was just a filing, I thought, that said FYI.

[00:16:40] Speaker 00:
We have fixed the problem, although they did not actually move to substitute.

[00:16:46] Speaker 00:
Correct.

[00:16:47] Speaker 01:
It was in connection with an entirely unrelated motion that was filed later in the case.

[00:16:51] Speaker 01:
Correct.

[00:16:52] Speaker 01:
A motion to continue trial.

[00:16:54] Speaker 00:
But before the summary judgment was decided, correct?

[00:16:57] Speaker 01:
It was never ruled on.

[00:16:58] Speaker 01:
The problem is I don't... Well, let's get the chronology straight.

[00:17:02] Speaker 00:
Right.

[00:17:02] Speaker 00:
We got a motion for summary judgment.

[00:17:04] Speaker 01:
Yes.

[00:17:05] Speaker 00:
Pending in the district court.

[00:17:07] Speaker 00:
Then we have...

[00:17:09] Speaker 00:
a motion for continuance, and this information is brought up.

[00:17:14] Speaker 00:
That's never ruled on before, but it's pending at the time the district court issues a decision, correct?

[00:17:25] Speaker 01:
That's correct.

[00:17:26] Speaker 01:
And I think the problem is because it was never considered or ruled on, that there's no evidence in the record that the court

[00:17:32] Speaker 01:
even saw that exhibit that was filed in connection with that motion.

[00:17:36] Speaker 01:
That motion was moot given the consideration of the motion for summary judgment.

[00:17:43] Speaker 00:
It's filed.

[00:17:44] Speaker 00:
It's public.

[00:17:44] Speaker 00:
It's there.

[00:17:45] Speaker 00:
So you're saying, well, maybe the district court didn't look at it or didn't see it, but it's there in the record.

[00:17:52] Speaker 01:
It is on file.

[00:17:53] Speaker 01:
That's correct, Your Honor.

[00:17:54] Speaker 01:
It was not brought to the attention of the district court in consideration of this motion.

[00:18:00] Speaker 01:
I think if the district court had known about it, it would have mentioned it in the order.

[00:18:06] Speaker 03:
Does that rule 17 require that after an objection a reasonable time is allowed for the real party in interest to be substituted into the action?

[00:18:14] Speaker 01:
Well, Your Honor, that argument was never made by the plaintiff in its opening brief, in their opening brief.

[00:18:20] Speaker 01:
And we've not had a meaningful opportunity to brief that argument.

[00:18:25] Speaker 01:
It's being essentially raised here for the first time.

[00:18:29] Speaker 01:
So I believe Rule 17

[00:18:37] Speaker 01:
does contain a requirement that there be a reasonable time to amend.

[00:18:42] Speaker 03:
We need only look at the rule to be able to see that the district court abused its discretion by declining to allow the plaintiffs an opportunity to substitute.

[00:18:52] Speaker 01:
Well, Your Honor, they were never requested to have that opportunity.

[00:18:56] Speaker 01:
Plaintiffs never requested it.

[00:18:58] Speaker 01:
It was brought to their attention.

[00:19:00] Speaker 01:
plaintiffs never asked the court for an opportunity to amend.

[00:19:04] Speaker 03:
I don't read the rule to require the plaintiffs to make a specific request, only that a reasonable amount of time be provided to allow for that to occur.

[00:19:11] Speaker 01:
It was also never raised in the opening brief, Your Honor.

[00:19:13] Speaker 01:
It's an argument that needs to be made by the plaintiff, I would argue.

[00:19:18] Speaker 01:
And for their failure to raise that, it's now been waived.

[00:19:22] Speaker 01:
Okay, so let's turn to the merits.

[00:19:24] Speaker 03:
I would like to

[00:19:27] Speaker 03:
have you respond to the arguments that were made today on the issue and in the briefs that if the body cam provides at least some question about the subjective intent of the officers with respect to the fear that there would be harm to the baby, why isn't that enough if we view the facts in a light most favorable to the non-moving party to go to the jury on the issue of excessive force?

[00:19:52] Speaker 01:
Well, Your Honor, excuse me.

[00:19:54] Speaker 01:
I believe the standard is what a reasonably objective officer in Officer Zach's shoes would reasonably believe at the time, given the totality of the circumstances and the information that officer knew at the time.

[00:20:14] Speaker 01:
The video

[00:20:15] Speaker 01:
is objective evidence of what happened and the court must take the look at the facts in light of what the video depicts.

[00:20:28] Speaker 01:
The officer at the time confronted a situation that was extremely dynamic.

[00:20:34] Speaker 01:
It was extremely fast.

[00:20:36] Speaker 01:
Between the time when he first spotted Mr. Fuhrer and he and other officers had his weapons pointed at Mr. Fuhrer,

[00:20:46] Speaker 01:
ordered him loudly to stop.

[00:20:49] Speaker 01:
And Mr. Fuhrer did not comply.

[00:20:51] Speaker 04:
After the order was given to stop, was he given an opportunity to comply with the order, or was he shot more or less simultaneously with the order being given?

[00:21:00] Speaker 01:
Your Honor, I'm speaking of the time when they first encountered Mr. Fuhrer.

[00:21:05] Speaker 03:
How many orders to stop were made?

[00:21:08] Speaker 01:
Well, there were several officers shouting, stop Sean, stop loudly.

[00:21:12] Speaker 01:
when he was first spotted and as he was running away from the officers.

[00:21:17] Speaker 01:
That can be heard clearly on the videotape.

[00:21:20] Speaker 04:
I'm much more interested in a constructionist than to stop when he's walking toward the officer with the baby in his arms and he's shot.

[00:21:28] Speaker 01:
What I'm suggesting, Your Honors, is it's one continuous effort.

[00:21:33] Speaker 04:
I know, but I'm asking about this particular piece of that continuous interaction.

[00:21:37] Speaker 01:
You can hear it on the video.

[00:21:39] Speaker 01:
It is very quickly.

[00:21:40] Speaker 01:
They stop, and then the shot comes pretty much right after that.

[00:21:45] Speaker 04:
It struck me as it was essentially simultaneous.

[00:21:47] Speaker 01:
It was close to being simultaneous, Your Honor.

[00:21:51] Speaker 01:
That's what it reflects.

[00:21:53] Speaker 00:
Time officer Aguilar actually says,

[00:21:56] Speaker 01:
Did you think there was sufficient time to allow Sean to stop and he says no, but of course That's one officer and then we have officers that correct your honor again The time between when they first spotted mr. Fuhr and he began running away and the time the shot was fired was approximately nine seconds this was not an two separate incidents as plaintiffs have been trying to portray it this was a

[00:22:26] Speaker 01:
essentially a 10-second period of time.

[00:22:29] Speaker 01:
That's very short.

[00:22:30] Speaker 01:
And during that time, Officer Zeck is pretty much on the run.

[00:22:35] Speaker 01:
He's gravely concerned about this child that he had just seen.

[00:22:40] Speaker 01:
He had just seen Mr. Fuhrer running away with a child, holding her in one arm, low on his hip.

[00:22:46] Speaker 01:
One officer described it like a football with just utter disregard for her safety and her limbs were flopping around.

[00:22:52] Speaker 03:
Do we have any cases that

[00:22:55] Speaker 03:
would take into account a scenario like this, where there are several periods of time, sort of one that preceded another, where an officer would be able to know that if you make a command to stop and the person does not stop and continues to run, and then you encounter them in short order thereafter, and you make a command and immediately shoot or simultaneously shoot,

[00:23:25] Speaker 03:
that that would constitute a clearly established right that's been violated.

[00:23:32] Speaker 03:
Because the way I read the cases, and you probably heard my questions to your friend on the other side, I think George might be a similar case, but for the fact that there isn't the sort of preceding period of time, as you're describing, occurred in this case.

[00:23:45] Speaker 01:
I think the main distinction between this case and all of the other cases cited by plaintiffs, including George, is that in this case, the suspect is holding a baby as a hostage, and there is a direct threat to that baby.

[00:24:02] Speaker 04:
You say as a hostage.

[00:24:03] Speaker 04:
That's a very loaded word.

[00:24:05] Speaker 04:
Usually, hostage means I'm holding this person, this child, until you give me something like money.

[00:24:11] Speaker 04:
He was holding.

[00:24:12] Speaker 04:
I'm not sure we're talking hostage.

[00:24:14] Speaker 04:
Well, Your Honor, it was... Hostage has a very specific meaning, and I'm not sure that this is a hostage situation.

[00:24:20] Speaker 04:
He was clearly holding the baby.

[00:24:21] Speaker 04:
I get that.

[00:24:22] Speaker 04:
But hostage, that's a very specific word.

[00:24:26] Speaker 01:
Again, Your Honor, we have to look at the facts that were presented to Officer Zeck at the time, which was that

[00:24:35] Speaker 01:
there was probable cause to arrest Mr. Feuer for a felony domestic violence assault with a firearm and kidnapping.

[00:24:45] Speaker 04:
I'm waiting for you to tell me why this is hostage.

[00:24:52] Speaker 01:
I'm sorry, Your Honor, I'm getting to that.

[00:24:54] Speaker 01:
Because of the kidnapping charge, he could presume at that point that Mr. Fuhrer had the baby unlawfully, that this was not a baby that he was entitled to have possession of or to have custody of at the time.

[00:25:11] Speaker 04:
Maybe you and I have a different definition of the word hostage.

[00:25:14] Speaker 00:
Yeah.

[00:25:14] Speaker 00:
So even if we were to credit that the

[00:25:21] Speaker 00:
situation didn't present an immediate threat to the officers and credit that there wasn't an immediate threat to the baby and I'm just asking you to assume that I know you would disagree but would you still prevail on qualified immunity and why if there was no threat to the baby I'm presuming that you're asking me to assume if there was zero threat to the baby well

[00:25:48] Speaker 00:
You know, if you don't have the immediate threat, do we have cases that say, well, given that with a, whether you want to call it a hostage or a third party that is, you know, involved, a baby being dangled or, at this point, not dangled but held, are there any cases that are close to that?

[00:26:08] Speaker 01:
Well, I would argue that the cases cited in our brief are close to that because, for example, the Forrett case,

[00:26:19] Speaker 01:
The little case in the Vazquez case, all of those cases, none of the... The suspect in Fort was actively escaping at the time he was shot.

[00:26:27] Speaker 03:
Pardon me?

[00:26:28] Speaker 03:
The suspect in the Fort case was actively escaping at the time he was shot.

[00:26:32] Speaker 03:
So how does that square with the facts in this case, which is not what happened?

[00:26:37] Speaker 01:
Your Honor, I would disagree with that.

[00:26:39] Speaker 01:
I would say that there is no evidence in this case that Mr. Fuhrer was not trying to evade at the time he was shot.

[00:26:49] Speaker 01:
He was actively running away from officers.

[00:26:55] Speaker 03:
I watched the body cam video.

[00:26:57] Speaker 03:
I think there's at least some question that he might have been surrendering at the time that he took a step forward.

[00:27:03] Speaker 03:
Twenty seconds before that, when he was running in the opposite direction, I would agree with what you're saying, but not at the moment that he was shot.

[00:27:10] Speaker 01:
Your honor, the video shows that he was continuously advancing.

[00:27:13] Speaker 01:
He never stopped at any point of time before he was shot.

[00:27:17] Speaker 01:
He could, it is, I would argue it is speculation to say that he was surrendering at that time because given all of his continuous conduct up until that point in time, and it was only 10 seconds before he was given a clear opportunity to surrender and he did not.

[00:27:33] Speaker 01:
So he could have jumped that fence like for it.

[00:27:36] Speaker 01:
He could have gone to his right.

[00:27:38] Speaker 04:
Pardon me for interrupting.

[00:27:39] Speaker 04:
But you're saying he's trying to escape as he's walking toward the officers?

[00:27:44] Speaker 04:
Yes, your honor.

[00:27:44] Speaker 04:
He's never stopped.

[00:27:46] Speaker 04:
But he's walking toward the officers.

[00:27:48] Speaker 04:
He's not walking away from them.

[00:27:49] Speaker 01:
At that point he faced the fence.

[00:27:52] Speaker 01:
He had to turn because of the fence at that point.

[00:27:55] Speaker 04:
My point is it's hard to say he's running away from the officers when he's facing them and walking toward them.

[00:28:01] Speaker 01:
He's not running away.

[00:28:02] Speaker 01:
I would agree with that, your honor.

[00:28:04] Speaker 04:
And would you agree that he's walking toward the officers?

[00:28:06] Speaker 01:
I would agree he's walking toward the officers at the time he was shot.

[00:28:10] Speaker 00:
It's really an odd thing because we're telescoping on this corner, a fence corner.

[00:28:15] Speaker 00:
So can you just remind us in terms of the chase or the talking to him where the officers are vis-a-vis him during the chase or the running?

[00:28:28] Speaker 00:
Sure.

[00:28:28] Speaker 00:
And then how they end up in this situation where he's in the corner of the fence and they're in front of him.

[00:28:34] Speaker 01:
Yes, Your Honor.

[00:28:36] Speaker 01:
basically what the officers did was they assumed they they took a parallel path to the path that Mr. Fear they assumed that Mr. Fear would be taking behind the residence so in essence Mr. Fear they had seen him go over a fence and behind this residence and went out of view they took a path in front of the residents like a residential townhouse buildings they went in front

[00:29:05] Speaker 01:
rounded the corner where the fence was and then encountered Mr. Fuhrer who was coming up the back way.

[00:29:13] Speaker 01:
So there was a fence on one side of Mr. Fuhrer and then there was a townhouse building with a sidewalk or backyards

[00:29:24] Speaker 01:
where he could have gone that opposite, sort of the direction he just came back.

[00:29:30] Speaker 01:
He could have gone that way.

[00:29:32] Speaker 01:
He could have tried to go over the fence.

[00:29:33] Speaker 01:
That's the point.

[00:29:35] Speaker 01:
At the point that he was shot, Officer Zeck had to make a very split-second decision.

[00:29:42] Speaker 01:
He knew he had a

[00:29:45] Speaker 01:
an opportunity to end the threat, a very significant threat he believed to that child who was probably the most vulnerable third party imaginable to be put at risk by this behavior.

[00:30:00] Speaker 01:
And he made that at that moment, he made the decision to end the situation rather than to see what would happen next.

[00:30:07] Speaker 01:
If he had waited, it could have been that Mr. Fear could have taken his gun and put it to the baby's head.

[00:30:12] Speaker 01:
could have thrown the baby at the officers to distract them to try to get away.

[00:30:16] Speaker 01:
And up until that point,

[00:30:18] Speaker 01:
Mr. Fuhrer had exhibited nothing but evasive conduct.

[00:30:24] Speaker 01:
He had been given a clear opportunity to surrender and he did not.

[00:30:26] Speaker 01:
He chose to run away from officers.

[00:30:29] Speaker 01:
So at that moment there was nothing that suggested to Officer Zeck in that split second moment where he could have ended that, he knew he could have ended the situation.

[00:30:40] Speaker 01:
There's nothing to indicate that the baby's life would be 100% safe

[00:30:47] Speaker 01:
if he had not taken action.

[00:30:49] Speaker 01:
And I think that's the main point on the use of force in this case is that the totality of the circumstances have to be taken into account, not just a split second of a video.

[00:31:03] Speaker 01:
And under those circumstances, Officer's ex-use of force was legally permissible.

[00:31:10] Speaker 01:
And I'd also like to address the qualified immunity issue quickly.

[00:31:14] Speaker 03:
You're out of time, so maybe just take a few seconds to make your closing remarks, and if you want to address this, that's fine.

[00:31:20] Speaker 01:
Thank you, Your Honor.

[00:31:23] Speaker 01:
My point is, even if the court finds a constitutional violation,

[00:31:28] Speaker 01:
officers actually be entitled to qualified immunity because there is no case in the Ninth Circuit or elsewhere that would have put him on notice.

[00:31:37] Speaker 01:
That's on all fours.

[00:31:38] Speaker 03:
That's the question that Judge McKeown and I have been asking you for the last 15 minutes.

[00:31:42] Speaker 00:
So I say there's no case and he says well but look at these cases.

[00:31:48] Speaker 01:
I would just refer the court to the briefing.

[00:31:51] Speaker 01:
Our response brief answers those questions and distinguishes the cases that

[00:31:56] Speaker 01:
council has raised.

[00:32:01] Speaker 01:
Basically, there's no threat to a third party in those cases, and that's what really distinguishes them.

[00:32:07] Speaker 01:
All right.

[00:32:07] Speaker 01:
Thank you.

[00:32:08] Speaker 01:
Thank you, your honor.

[00:32:18] Speaker 02:
I want to bring another case to the court's attention, Zion versus County of Orange.

[00:32:23] Speaker 02:
where there was interpretations of what the body cam video showed.

[00:32:26] Speaker 02:
The 9th Circuit in that case reversed and said there's competing versions of events, so we're going to reverse that.

[00:32:34] Speaker 02:
In Zion, he was shot and killed.

[00:32:36] Speaker 02:
Then there was a movement.

[00:32:38] Speaker 02:
The officer said he's still continuing to fight, shot him several more times.

[00:32:42] Speaker 02:
The body cam video showed otherwise.

[00:32:45] Speaker 02:
It said, look, that could be interpreted as involuntary movement.

[00:32:49] Speaker 02:
So in this case, we're saying, if there's multiple versions of events to be believed, and at this point, the summary judgment phase for Rule 56, you have to credit our version of that, then it goes forward.

[00:33:00] Speaker 02:
I also want to address an issue about, procedurally, the person of representative in state law.

[00:33:07] Speaker 02:
Rule 17b says that capacity to be sued is determined by state law.

[00:33:13] Speaker 02:
The probate courts, and even the Washington Supreme Court in

[00:33:19] Speaker 02:
in Ray estate of jones in bonk 152 wash 2d1 2004 said that decision is determined by the probate courts here in this case we have an order and we have letters of administration right and you don't you know you we're not supposed to hunt and peck through the record you never did ask the federal court to substitute the party correct that is correct that would have been

[00:33:47] Speaker 00:
We wouldn't even be talking about that.

[00:33:48] Speaker 00:
Instead of filing a piece of paper that somebody may or may not cotton to, you could have just filed a motion and said, hey, forget all this discussion.

[00:33:58] Speaker 00:
We've got the right person here now as the party.

[00:34:01] Speaker 02:
And what I'm saying, Your Honor, even under state law, if you have the wrong person, you have to cancel those letters.

[00:34:06] Speaker 02:
You have to move to say, because even in state law.

[00:34:08] Speaker 00:
No, it doesn't matter.

[00:34:09] Speaker 00:
We're in federal court where

[00:34:13] Speaker 00:
You have the wrong person to start with, and now you have a chance to fix it and substitute the right person, but you don't ask the court to do that.

[00:34:22] Speaker 02:
What I'm saying, Your Honor, is even if you had the wrong person, you have to get the letters revoked.

[00:34:26] Speaker 02:
Right now, those are still the right person because the letters were issued, so that is the right person.

[00:34:31] Speaker 02:
Now, if you want to counsel them and say, challenge it, I want to challenge that he's the PR, that's different, and that's what we're saying.

[00:34:38] Speaker 00:
So you think even with a felony conviction, you had the right person?

[00:34:40] Speaker 02:
Well, what I'm saying is, Your Honor.

[00:34:42] Speaker 00:
No, no, yes or no.

[00:34:42] Speaker 00:
Did you have the right person?

[00:34:44] Speaker 00:
You could have fixed this in 22 seconds, and we wouldn't have all this briefing and argument.

[00:34:50] Speaker 02:
And that is true, Your Honor, but what I'm trying to tell you is we had letters issued.

[00:34:53] Speaker 02:
So we were operating under that.

[00:34:54] Speaker 02:
When Mr. Ferrer and it was brought to his attention it was a felony, that's when we went back.

[00:34:58] Speaker 02:
So we were operating.

[00:35:00] Speaker 02:
He was the correct person.

[00:35:01] Speaker 02:
Here, the letters of administration said he is appointed as a court as administrator.

[00:35:05] Speaker 02:
So we had and we're acting under that authority.

[00:35:08] Speaker 02:
Now, if you want to challenge it and say, hey, there's an issue with that, the state law says this is how you challenge it.

[00:35:15] Speaker 02:
The cancellation of letters under RCW 1128-160, the revoking of letters, and it even mentions if there is a felony, this is the steps you take to revoke the letters.

[00:35:26] Speaker 02:
Until they're revoked, those letters are valid.

[00:35:28] Speaker 02:
And that's what I'm saying.

[00:35:29] Speaker 00:
You haven't really answered the question of why didn't you just file a motion.

[00:35:32] Speaker 00:
But we'll leave that where it is.

[00:35:33] Speaker 00:
And we've focused today on the substance of your case.

[00:35:36] Speaker 02:
And I guess my point being is we were moving that way.

[00:35:39] Speaker 02:
And we always informed the defense counsel.

[00:35:42] Speaker 02:
The defense counsel was actually at the hearing when we were moving for the personal representative.

[00:35:46] Speaker 03:
Thank you very much for your argument.

[00:35:48] Speaker 02:
Thank you.

[00:35:48] Speaker 03:
Thank you to both counsel for your helpful argument.

[00:35:51] Speaker 03:
This morning, this matter is now submitted.