[00:00:00] Speaker 02:
If you're ready, good morning to all of you.

[00:00:10] Speaker 02:
My name is Dale Gallipo.

[00:00:12] Speaker 02:
I'm one of the attorneys representing the appellants.

[00:00:15] Speaker 02:
I am hopeful to reserve five minutes and I'm going to try to take seven of the first 10 and leave three minutes to Mr. Arias.

[00:00:24] Speaker 02:
I'd like to focus my argument if I can on the second prong of qualified immunity.

[00:00:30] Speaker 02:
And before doing that, I'd like to

[00:00:32] Speaker 02:
focus on the facts of the case, including the disputed facts, because I believe it's clear that in order to decide whether the law was clearly established, we have to assume all plaintiff's facts and all disputed facts in favor of the plaintiff.

[00:00:49] Speaker 02:
We know that a homeless person was sleeping in the bushes or hedges.

[00:00:55] Speaker 02:
We know he had recyclables and a stick or pole.

[00:00:58] Speaker 02:
And we know that the officer gave numerous commands for him to come out of the hedges, which he eventually complied with.

[00:01:07] Speaker 03:
Yeah, so Katzl, I'm going to obviously let you continue.

[00:01:10] Speaker 03:
But I want to see if you agree with me that other undisputed facts

[00:01:16] Speaker 03:
that the officer knew at the time he confronted your client was that he had contacted but not arrest him in 2020 after he was reportedly brandishing a knife.

[00:01:31] Speaker 03:
That in 2020, his contact with the officer was when he was arrested for a robbery in Santa Ana

[00:01:38] Speaker 03:
during which he had knocked a street vendor victim unconscious, and that at some unknown time thereafter, but before this incident, he arrested your client on a felony warrant for assault with a deadly weapon and possession of meth.

[00:01:55] Speaker 02:
I think that is the officer's testimony, Judge Bennett, that she had that information, and I don't believe that is materially disputed.

[00:02:05] Speaker 03:
Thank you.

[00:02:06] Speaker 02:
You're very welcome.

[00:02:07] Speaker 02:
So then Mr. Garcia takes one foot out of the hedges after being commanded to do so, and he's tased.

[00:02:18] Speaker 02:
During the tasing cycle, he's shot twice.

[00:02:22] Speaker 02:
They know he has a stick because at some point they yell out, he has a stick.

[00:02:27] Speaker 02:
Importantly, from the appellant's perspective, the officer never gives him a command to drop the stick, to stop, to get down on the ground.

[00:02:37] Speaker 02:
and shoots him without giving any verbal warning.

[00:02:41] Speaker 02:
The first shot, we believe, is as he's starting to turn away from being tased.

[00:02:46] Speaker 02:
The second shot was aimed at his back, although it hit his left side.

[00:02:50] Speaker 02:
She thought it hit his back in her deposition testimony.

[00:02:54] Speaker 02:
And he's about 10 feet away from the officer moving away.

[00:02:58] Speaker 03:
What we believe is- 10 feet away from Freya's?

[00:03:01] Speaker 02:
from Silva, the shooter, Judge Bennett.

[00:03:06] Speaker 02:
And the distance on Frias is probably about 10 feet as well, although Frias, as you know, never even pulled out his weapon.

[00:03:15] Speaker 02:
He simply pushed him to the ground.

[00:03:17] Speaker 03:
So I thought it was undisputed that when your client was holding the stick five feet or so above his head, he was standing about two to three feet from Silva when she fired the first shot.

[00:03:30] Speaker 02:
We believe that is disputed, Your Honor.

[00:03:32] Speaker 02:
We think a fair viewing of the video has it more about five feet or more.

[00:03:38] Speaker 02:
But I agree that's subject to different interpretation.

[00:03:42] Speaker 03:
But we can look at the video and make a judgment based on what we believe the video shows in an undisputed way if we find that.

[00:03:52] Speaker 03:
I mean, the fact that somebody says the video is inaccurate doesn't make it a disputed fact under our circuits law, right?

[00:03:59] Speaker 02:
Correct, but under Nehad, videos such as this may be subject to more than one reasonable interpretation.

[00:04:06] Speaker 02:
And for the purposes of this analysis, you have to assume any reasonable interpretation in favor of the plaintiff.

[00:04:14] Speaker 02:
If I may just continue with a few of the facts, and then I wanted to talk about the cases very quickly, because I know I don't have much time.

[00:04:22] Speaker 02:
The district court in analyzing the cross motions for summary judgment found that there were multiple material factual disputes, whether the decedent posed an immediate threat, whether he was using the stick as a weapon or whether it was a deadly weapon at all.

[00:04:40] Speaker 02:
Whether he was advancing whether he was lunging whether the stick was merely moving for him to get out of the hedges and as a result of being taste, whether he was resisting, whether he was evading.

[00:04:53] Speaker 02:
And if you assume all those facts in our favor, which you have to for purposes of the second prong, you have to assume he was not an immediate threat, certainly not an immediate threat of death or serious bodily injury.

[00:05:08] Speaker 02:
He was not evading.

[00:05:09] Speaker 02:
He was not resisting.

[00:05:11] Speaker 02:
He was not advancing.

[00:05:13] Speaker 02:
He was not lunging.

[00:05:15] Speaker 02:
He gave no verbal threat and had committed no serious crime.

[00:05:20] Speaker 04:
I'm sorry.

[00:05:23] Speaker 04:
you are basically contradicting in part what the video shows.

[00:05:29] Speaker 04:
The video shows that he was not responding to the commands of the officer and that in that respect he was either evading or impeding the officers as they tried to get him to come out.

[00:05:44] Speaker 04:
So the fact that you want to characterize that is not evading doesn't make it so, and doesn't necessarily mean that it's a material fact that's in dispute.

[00:05:55] Speaker 04:
I mean, for example, with the stick, the video shows that's a fair comment.

[00:06:01] Speaker 02:
Judge Tom and that's a fair comment because there was a delay, obviously, in him getting onto the hedges and the officer herself kind of dictated the distance there by reaching in and trying to grab him at one point.

[00:06:15] Speaker 04:
The point that I'm trying to get it was because he wasn't coming out.

[00:06:18] Speaker 04:
I mean, I get it.

[00:06:20] Speaker 02:
I certainly understand.

[00:06:22] Speaker 02:
I'm just saying a delay in coming out of some bushes does not justify shooting and killing someone.

[00:06:30] Speaker 04:
What did the toxicology report show?

[00:06:32] Speaker 02:
That's not part of the record in this case, Judge Talman.

[00:06:36] Speaker 04:
So we have no idea what the results of the autopsy were?

[00:06:40] Speaker 02:
Because this case was investigated by the DOJ, the shooting of an unarmed man.

[00:06:46] Speaker 02:
They do unarmed people investigations, and none of the materials were released as of the time of the MSJ briefing.

[00:06:55] Speaker 04:
I see.

[00:06:55] Speaker 04:
So you're basically saying they may exist, but you've never seen them.

[00:06:59] Speaker 02:
Correct.

[00:07:01] Speaker 02:
So if I can just finish, once you assume, which we believe you have to, for purposes of this analysis, he was not an immediate threat of death or serious bodily injury, because that was a dispute the district court found.

[00:07:17] Speaker 02:
And I think it clearly is a dispute in this case that should be decided by a jury.

[00:07:23] Speaker 03:
But then the case laws.

[00:07:24] Speaker 03:
But, counsel, we're reviewing that de novo, right?

[00:07:31] Speaker 02:
That's absolutely correct.

[00:07:35] Speaker 03:
And we, de novo, have to make our own judgment as to whether the way he's holding this stick above his head and the distance that we see from Silva, the type of threat, if any, that he was the type of threat that there was to Silva.

[00:07:56] Speaker 03:
I mean, we can look at it, and I'm sorry, the type of threat he was to Frias, and we can look at that and decide based on whatever distance we find he was from Frias when he was holding the stick, how much of a threat he posed to either of the officers, right?

[00:08:13] Speaker 02:
To some extent, what you really have to do is decide whether there's a material factual dispute about whether he posed an immediate threat of death.

[00:08:23] Speaker 02:
I think the distance in this case is misleading because Silva controlled the distance and asked him to come out of the hedges and was standing right there.

[00:08:33] Speaker 02:
This is not like other cases where someone was not complying with commands to drop a weapon and advancing towards the officer with the weapon.

[00:08:43] Speaker 03:
Counsel, do any of those cases that you cite involve facts where the officers knew about certain tendencies or facts about the defendant?

[00:08:54] Speaker 03:
In this case, the three prior encounters with the officer and the decedent, do any of those cases involve something like that?

[00:09:05] Speaker 02:
To some extent, yes.

[00:09:07] Speaker 02:
And I'd like to cite the cases, if I may, that we believe put the officer on notice.

[00:09:12] Speaker 02:
I'd like to start with Hayes and George.

[00:09:16] Speaker 02:
And George, importantly, in 2013 said, this court has repeatedly held that officers are fairly on notice, that shooting a suspect that does not pose an immediate threat of death or serious bodily injury would violate the Fourth Amendment

[00:09:33] Speaker 02:
even when the suspect is armed.

[00:09:36] Speaker 02:
And then you have the case of the estate of Nahara Aguirre, which I know a little bit about because that's my case.

[00:09:43] Speaker 02:
And in that case, as I'm sure the panel knows, the court found that this fell within the obvious.

[00:09:51] Speaker 02:
But even if it didn't, George and Morris, as of 2016, would have put

[00:09:57] Speaker 02:
an officer fairly on notice.

[00:09:59] Speaker 02:
The court in Aguirre said, Hayes and George make clear to a reasonable officer that a police officer may not use deadly force against a non-threatening individual, even if the individual is armed and even if the situation is volatile.

[00:10:17] Speaker 02:
And I would suggest the facts of Nahir Aguirre were much worse than this case.

[00:10:22] Speaker 02:
He had two raised baseball bats, multiple commands to put him down, which he refused.

[00:10:28] Speaker 02:
He was advancing towards the officer.

[00:10:31] Speaker 02:
He had broken out windows, including a house window, and threatening people, including a woman and her child.

[00:10:39] Speaker 02:
I'm just saying I understand what you're saying, Judge Bennett.

[00:10:43] Speaker 02:
Someone could look at the video and say, well, he was close.

[00:10:46] Speaker 02:
He had a stick or pole.

[00:10:48] Speaker 02:
He didn't swing it, but who knows what could happen.

[00:10:51] Speaker 02:
Yes, that may be one view.

[00:10:53] Speaker 02:
But the question is whether there could be other reasonable views that he did not pose an immediate threat.

[00:11:00] Speaker 02:
And yes, you are able to review this de novo, Judge Bennett.

[00:11:04] Speaker 02:
I agree with that.

[00:11:05] Speaker 02:
But the district court judge, carefully reviewing it, found those were material factual dispute.

[00:11:12] Speaker 02:
The other thing I'd like to mention is the case of SBV County of San Diego.

[00:11:18] Speaker 02:
That case, we believe, is very similar to this, because someone suddenly grabbed a knife, which we believe is less threatening than a stick, within five feet of the officer,

[00:11:30] Speaker 02:
And they shot and killed that person.

[00:11:33] Speaker 02:
And the court held in 2017, although they granted qualified immunity because they felt the law was not clearly established at the time of the underlying incident, that case as of 2017 made new law, that that conduct supports a constitutional violation, which was expressed in the case of Penny.

[00:11:58] Speaker 02:
Also, Voss v. City of Newport Beach is another case and many others.

[00:12:04] Speaker 02:
The point that I guess I'm trying to make is yes, I agree you could look at the video and say he was in close proximity.

[00:12:14] Speaker 02:
And you could also look at it and say he had this stick or pole.

[00:12:19] Speaker 02:
But we believe that there are more than one reasonable interpretation that could be made

[00:12:26] Speaker 02:
and is certainly a reasonable interpretation is that he was, did not pose an immediate threat of death.

[00:12:34] Speaker 02:
There were other reasonable options.

[00:12:36] Speaker 02:
He already was being tased.

[00:12:37] Speaker 05:
I think I should interrupt you because you're over your time.

[00:12:40] Speaker 05:
So I am willing to stop.

[00:12:42] Speaker 02:
I'll stop right here, Judge.

[00:12:44] Speaker 02:
Thank you for the interruption.

[00:12:53] Speaker 05:
Oh, I think you're muted.

[00:12:56] Speaker 00:
If I may please the court, thank you, Your Honors, on behalf of the plaintiffs, Wendy Galicia and Mr. Galicia as well.

[00:13:08] Speaker 00:
I think one point that I would like to make in the court to consider, it will be one of the issues that we presented, whether it's appropriate to apply qualified immunity in a situation when there is a legitimate

[00:13:23] Speaker 00:
issue that it's going to be important to make a determination of a material fact, for example.

[00:13:30] Speaker 00:
And I'm looking at, in hearing what my colleague is talking about, what Judge Bennett mentioned, it's important to note in this case that the ninth secret court has already established

[00:13:44] Speaker 00:
that when there is a legitimate issue that is still pending for determination, in this case, whether it is objectively reasonable for an officer in Officer Silva's position to consider Mr. Garcia as an immediate threat.

[00:14:02] Speaker 00:
Was that reasonable?

[00:14:03] Speaker 00:
That is going to be determined by what is it that's going on.

[00:14:07] Speaker 00:
And we can see the video.

[00:14:08] Speaker 00:
Was he an immediate threat?

[00:14:11] Speaker 00:
That is still pending.

[00:14:14] Speaker 00:
Even the district court recognized that that is legitimately at issue in a jury.

[00:14:19] Speaker 00:
The court included in the decisions, and a jury is better suited to make that determination.

[00:14:25] Speaker 00:
Why?

[00:14:26] Speaker 00:
Because we don't know.

[00:14:27] Speaker 00:
One person can determine, oh, he was just moving away from the officers.

[00:14:31] Speaker 00:
He's reacting to the taser.

[00:14:33] Speaker 00:
He's not actually attacking anyone.

[00:14:35] Speaker 00:
And other person may think otherwise.

[00:14:38] Speaker 00:
The fact that that is important to determine whether or not there was an immediate threat renders this case in the decision, unfortunately, inconsistent with the precedents of Morales, of Longoria, and even Lopez, where the Ninth Circuit Court has been cleared.

[00:14:56] Speaker 00:
If there is a legitimate issue which is necessary for the determination of the immediate threat,

[00:15:02] Speaker 00:
qualified immunity is not appropriate and that's what we respectfully assume.

[00:15:07] Speaker 04:
You're not arguing, are you, that there would never be a situation where a court could not go to prong two and determine even in the facts most favorable to the plaintiff the law was not clearly established that deadly force could not be used in these circumstances.

[00:15:25] Speaker 00:
No, of course not.

[00:15:28] Speaker 00:
But in this case, even if we go to the problem, I will argue that Nehat and Lopez, by the way, as just mentioned, provide the basis for this case.

[00:15:38] Speaker 00:
In those cases, we have a call, no emergency.

[00:15:42] Speaker 00:
We have an officer responding, no emergency, no lights, no urgency.

[00:15:46] Speaker 00:
There is no serious crime involved.

[00:15:49] Speaker 00:
and there's no warning, and yet the person ends up being dead.

[00:15:54] Speaker 00:
So, for example, the Lopez, which was recently cited in a decision.

[00:15:58] Speaker 04:
The initial call was that he was armed with a knife, and he was walking around in front of the

[00:16:05] Speaker 04:
RB Park talking to himself or wielding the knife.

[00:16:10] Speaker 04:
Isn't that what they're doing?

[00:16:12] Speaker 00:
Yes, Your Honor.

[00:16:12] Speaker 00:
Just like in Nehat, the report was a person seen in public waving a knife.

[00:16:17] Speaker 00:
That was the report.

[00:16:18] Speaker 00:
But no emergency.

[00:16:20] Speaker 00:
And there was no warning.

[00:16:21] Speaker 00:
And it was also this video where the officer in Nehat said, well, I thought it was an immediate threat.

[00:16:28] Speaker 00:
I thought he was coming towards me, just like Officer Silva.

[00:16:31] Speaker 00:
It turns out the video shows he's moving.

[00:16:35] Speaker 00:
Is he going to attack?

[00:16:36] Speaker 00:
Is he just moving?

[00:16:38] Speaker 00:
That is for the jury to decide.

[00:16:40] Speaker 00:
And that's why Neha Justas Lopez, which was recently cited in a decision on June, opinion by Judge Friedland, by the way, is

[00:16:49] Speaker 00:
The fact that whether or not a kid, a boy who was being told on the street, hey, and he had a BB gun, and he just moves, Your Honor, he just moves.

[00:16:59] Speaker 00:
The officer shoots at him, and then are we going to just simply conclude that his reason

[00:17:07] Speaker 00:
for an officer to react for that person being called and that movement sufficient to kill the person.

[00:17:14] Speaker 00:
The decision of Lopez and the decision of Nehat support the finding that officer Silva was on notice.

[00:17:22] Speaker 00:
Shooting on this person under these conditions was unreasonable and we submit on that respectfully.

[00:17:29] Speaker 00:
Thank you.

[00:17:32] Speaker 05:
You're from the other side.

[00:17:33] Speaker 01:
Yes, thank you honor and may please the court Bruce prayed on behalf of the appellees the defendant officer silver in this case.

[00:17:42] Speaker 01:
Judge Bennett certainly pointed out the remarkable distinction between this case and the other cases cited by the appellants and that is that officer silver had substantial prior knowledge of this individual.

[00:17:57] Speaker 01:
uh, given her prior arrest for him for a robbery in which he coincidentally knocked the victim unconscious, very similar to the threat that she was facing when he advanced on her with the five foot pole.

[00:18:12] Speaker 01:
And the court can see it can't be disputed.

[00:18:16] Speaker 01:
And we even provided the court with the screenshot in our brief, both the district court and yourselves, where you cannot misinterpret the fact that

[00:18:26] Speaker 01:
the deceit in this case, has got his entire weight on his front foot as he's raising that pole over his head, a five-foot pole, two to three feet from Officer Silva, who has retreated into that hedge.

[00:18:41] Speaker 01:
She can't go any further.

[00:18:45] Speaker 01:
He is not just holding a pole vertically.

[00:18:48] Speaker 01:
There's no way to misinterpret that as a threat.

[00:18:51] Speaker 01:
And even if it's a mistaken threat,

[00:18:53] Speaker 01:
The Supreme Court in Sheehan has said officers need not wait until they suffer serious injury or death.

[00:19:02] Speaker 01:
Even if she's mistaken, there's no way to misinterpret that.

[00:19:06] Speaker 01:
And the point really on appeal is not whether he was a reasonable threat.

[00:19:11] Speaker 01:
The district court

[00:19:12] Speaker 01:
albeit reluctantly said, I suppose a jury could somehow interpret this as unreasonable.

[00:19:21] Speaker 01:
But that's not the prong we're dealing with.

[00:19:22] Speaker 01:
We're dealing with whether or not this was clearly established beyond debate so that all but the most incompetent officers would realize that that split second decision that she made was going to violate a clearly established constitutional right.

[00:19:38] Speaker 05:
So it sounds like you watch this video and you see that this is a threat.

[00:19:43] Speaker 05:
But if we watch this video and think a jury might find that this was a threat, but a jury might find that this is just someone picking up recycling with a pole who was woken up and startled.

[00:19:55] Speaker 05:
Wouldn't we have to say that if a jury found the latter, it was clearly established that it was unconstitutional to kill him?

[00:20:02] Speaker 01:
clearly established under what circumstances, the specificity in the Fourth Amendment under Escondido versus Emmons has to be specific, especially in Fourth Amendment, where it's very difficult for officers to make these quick decisions and interpret the law.

[00:20:19] Speaker 03:
We have to decide at other than a high level of, we have to look at a case that's at other than a high level of generality.

[00:20:26] Speaker 03:
Correct.

[00:20:27] Speaker 03:
And in your view, do any of the cases that are cited by your friends involve a circumstance where, among other things, the officer knew that very recently the individual had been accused of a robbery where they had actually knocked the person involved unconscious?

[00:20:50] Speaker 01:
No, there's not been a case cited nor is there a case that I'm aware of that exists even remotely close to that.

[00:20:58] Speaker 03:
Do you think that given the Supreme Court's guidance to our court, that we can look at a case where the officer didn't have something akin to this, knowing that this is a person who in a robbery had actually knocked someone unconscious, and these other two things, can we ignore those in deciding whether there's a case at a high level of generality or the required specificity?

[00:21:28] Speaker 01:
Oh, absolutely not.

[00:21:29] Speaker 01:
You can't ignore those facts.

[00:21:31] Speaker 01:
Those are the facts of this case that distinguish it from the cases cited by the appellants.

[00:21:37] Speaker 05:
In fact, most of those cases, Hayes... Can I ask you, if he came out of the bushes with a pencil, would it matter that he had these past crimes?

[00:21:46] Speaker 05:
I mean, would that mean because there's no other case of the past crime, they could kill him?

[00:21:51] Speaker 01:
Well, certainly those are not the facts.

[00:21:52] Speaker 01:
And ironically, this court in Gregory versus Maui said that even a pen when wielded

[00:21:58] Speaker 01:
in a threatening manner can constitute a deadly threat.

[00:22:02] Speaker 03:
But this is at least a five-foot stick.

[00:22:04] Speaker 03:
This is not a pencil.

[00:22:09] Speaker 01:
This is not a pencil.

[00:22:10] Speaker 01:
And the manner that he came out was not somebody who is just holding a pole by their side.

[00:22:17] Speaker 01:
He's clearly raised it over his head.

[00:22:19] Speaker 01:
The officer is retreating.

[00:22:23] Speaker 01:
And, you know, to the Mr. Gallippo's comment that he was shot as he was turning in the back, we provided the court at SCR 15 with the autopsy, which shows that both shots fired within one second, excuse me, struck him to the front of the chest.

[00:22:41] Speaker 01:
And he, both shots were fired when he was two to three feet from Officer Silva.

[00:22:48] Speaker 01:
So,

[00:22:49] Speaker 01:
To Judge Tallman's question, it is not in the record, but to answer your question, the toxicology result did show he was under the influence of methamphetamine as well, just to answer your question.

[00:23:01] Speaker 01:
So whether there's a disputed fact, which we submit there really isn't, as this court has decided in VAS, that's not the end of the inquiry.

[00:23:11] Speaker 01:
The inquiry is whether there is a clearly established law that this officer would have known beyond a debate she was violating.

[00:23:18] Speaker 05:
Was there testimony from the officers that they thought he was on drugs?

[00:23:23] Speaker 01:
Oh, absolutely.

[00:23:24] Speaker 01:
Yes.

[00:23:25] Speaker 01:
The officer did testify because she knew she had just arrested him a couple months prior for possession of methamphetamine.

[00:23:32] Speaker 01:
When he was acting in the way that he was, she suspected he may be under the influence of methamphetamine.

[00:23:38] Speaker 01:
Assault with a death?

[00:23:40] Speaker 05:
Where is the testimony that his behavior seemed like he was on meth?

[00:23:44] Speaker 05:
I didn't remember that.

[00:23:45] Speaker 05:
Maybe it exists, but I don't remember that.

[00:23:47] Speaker 01:
And I'm sorry, I'd have to go through the entire record to find that in her deposition.

[00:23:52] Speaker 01:
I just know that from familiarity with the case.

[00:23:55] Speaker 01:
I'm not sure that's particularly material fact, whether he was under the influence of meth or not.

[00:24:00] Speaker 01:
He certainly.

[00:24:01] Speaker 05:
I mean, you brought up the toxicology report.

[00:24:03] Speaker 05:
I understand it was asked about, but that they didn't know the toxicology.

[00:24:07] Speaker 05:
And I don't remember there being testimony that suggested the toxicology.

[00:24:11] Speaker 01:
Well, they did suspect he may be under the influence, but they certainly you're right.

[00:24:15] Speaker 01:
They did not know the toxicology.

[00:24:17] Speaker 03:
But in the incident you were talking about, as I understand it, the felony warrant was for both assault with a deadly weapon and meth possession that he was arrested for.

[00:24:29] Speaker 03:
Correct.

[00:24:30] Speaker 03:
And there's no dispute the officer knew that when she saw him come out with the pole.

[00:24:34] Speaker 01:
You are correct, Your Honor.

[00:24:36] Speaker 01:
And the other cases cited, almost all of them involved people who were reportedly mentally ill, as opposed to, in this case, as the court has pointed out, someone who the day before was brandishing a knife, and in this case, assaulted the officer.

[00:24:53] Speaker 01:
And George versus Morris, it was an elderly man in a walker who had a gun, never pointed it.

[00:25:00] Speaker 01:
I agree.

[00:25:01] Speaker 01:
The law is clear that you can't shoot somebody who is not reasonably perceived as an imminent threat.

[00:25:07] Speaker 01:
But the facts in this case are clear, the specific facts of this case, that that's not the situation.

[00:25:16] Speaker 01:
So we would submit that on the clearly established prong, which is the only issue really here, there is not a case even remotely on point that would have put Officer Silva on notice

[00:25:28] Speaker 01:
beyond debate that her split-second decision would violate some clearly established law, which has not in any phase of this case been cited.

[00:25:38] Speaker 01:
And their remaining claims, their state claims, are proceeding in state court.

[00:25:43] Speaker 01:
Whether they believe her tactics were negligent or anything else, the case isn't over.

[00:25:48] Speaker 01:
The only issue being decided here is qualified immunity for Officer Silva.

[00:25:53] Speaker 05:
If we were to reverse

[00:25:56] Speaker 05:
The qualified immunity decision and the federal claim was reinstated with the state claims need to come back to federal court.

[00:26:04] Speaker 01:
Uh, that would be, I guess up to the district court, whether or not she, uh, elected to continue to exercise her supplemental jurisdiction, but they are now pending in the superior court.

[00:26:15] Speaker 04:
Uh, I think with the trial date in October of this year, I'm sorry, trial date of October, 2025.

[00:26:26] Speaker 01:
Yes.

[00:26:31] Speaker 01:
Unless there's anything else from the court, I think we'll submit and just ask that the court uphold the district court who interpreted the law better probably than the officers could have and found that the officer was entitled to qualified immunity.

[00:26:55] Speaker 05:
It doesn't look like there are other questions, so let's give two minutes for rebuttal.

[00:26:59] Speaker 01:
Thank you, Your Honor.

[00:27:00] Speaker 02:
Yes, thank you.

[00:27:01] Speaker 02:
The fact that there are other state law claims pending, I think, is immaterial to this discussion.

[00:27:07] Speaker 02:
And in response to Judge Freeland's comment, yes, I think they would be joined back in federal court.

[00:27:13] Speaker 02:
This really is an egregious shooting.

[00:27:16] Speaker 02:
I've probably handled hundreds of police officer involved shooting cases.

[00:27:20] Speaker 02:
This is one of the worst that I've seen.

[00:27:22] Speaker 02:
Asking a guy, and by the way, they had a description of a person with blonde hair.

[00:27:28] Speaker 02:
the day before yielding a knife.

[00:27:31] Speaker 02:
He didn't match the description in any way.

[00:27:33] Speaker 02:
He didn't have blonde hair at all.

[00:27:36] Speaker 02:
So that's how ludicrous this is.

[00:27:38] Speaker 02:
And you're asking a person who's homeless to come out of the hedge

[00:27:43] Speaker 02:
and he comes out and you kill him and because you're close to him and because he has a pole and mind you yes judge ben it is five feet but he wasn't holding it with his hands above his head he wasn't swinging it there's no downward motion of it you can see that he testified that he poked at her with the stick did you not

[00:28:06] Speaker 02:
She claims that, Judge Talman, but you don't see it in the video.

[00:28:10] Speaker 04:
Well, you see her reaction when she puts her hand up and backs away immediately as she starts entering the hedge.

[00:28:17] Speaker 04:
That's the only explanation I can have.

[00:28:19] Speaker 04:
Well, that is not... I can see it on the video.

[00:28:25] Speaker 04:
Judge Talman... I can see it through different colored lenses, but the video shows what it shows.

[00:28:31] Speaker 02:
Well, here's the issue, Judge Talman.

[00:28:33] Speaker 02:
Respectfully, I have to disagree with you.

[00:28:35] Speaker 04:
I do agree with you that she tactically repositions, and I do agree that— Tactically repositioned in a defense posture as if she's being assaulted.

[00:28:47] Speaker 02:
Well, I agree that she tactically repositioned in a defense posture and had reason for potential concern, but that doesn't mean that she was being attacked or that this was a true immediate threat of death, and why not?

[00:29:04] Speaker 04:
The question is whether or not a reasonably objective officer under the circumstances would have perceived his behavior at that point as a potential assault on her, is it not?

[00:29:17] Speaker 04:
do the analysis?

[00:29:18] Speaker 02:
The problem is potential assault is not enough.

[00:29:21] Speaker 02:
Otherwise you kill anyone any time you see holding anything that you're close to.

[00:29:27] Speaker 04:
It has to be an immediate through.

[00:29:29] Speaker 04:
If it's true that he had actually poked her with the stick, he's now assaulted a police officer with a deadly weapon under 245B of the California Penal Code.

[00:29:38] Speaker 02:
But he never did that.

[00:29:40] Speaker 02:
He never did it.

[00:29:41] Speaker 02:
Because he did.

[00:29:42] Speaker 02:
But that's the problem.

[00:29:46] Speaker 02:
Her credibility, Judge, is an issue.

[00:29:49] Speaker 02:
And the jury needs to decide that.

[00:29:51] Speaker 02:
You see no poking motion in the video.

[00:29:54] Speaker 02:
So if you want to consider the video and you see no poking motion, her credibility becomes questionable.

[00:30:01] Speaker 02:
And then one should ask, why didn't she give him a command to drop it?

[00:30:06] Speaker 02:
Why didn't she give him a warning she was going to shoot him?

[00:30:09] Speaker 02:
She knew he was under the taser.

[00:30:12] Speaker 02:
I'm sorry?

[00:30:13] Speaker 04:
Because he was coming out of the hedge at her.

[00:30:16] Speaker 02:
No, but you don't see that in the video.

[00:30:18] Speaker 02:
You see him come out, the stick is vertical because they ask him to come out and he's being tased.

[00:30:25] Speaker 02:
So any reaction to that is reasonable with a reaction to being tased.

[00:30:32] Speaker 02:
I get what you're saying, but to say that he was attacking her with that stick, I think at a minimum is a triable issue of fact.

[00:30:42] Speaker 04:
I'm not necessarily disagreeing with you on that.

[00:30:44] Speaker 04:
The problem is that the video doesn't show everything.

[00:30:48] Speaker 04:
Well, that could be.

[00:30:50] Speaker 04:
That could be, Judge Talman.

[00:30:52] Speaker 02:
That's why we need a jury to sift it out.

[00:30:55] Speaker 04:
I'm not sure I'm arguing against your position, counsel.

[00:31:00] Speaker 02:
OK, thank you, Judge.

[00:31:03] Speaker 02:
I don't know if there's any other question, but I appreciate the time and appreciate everyone listening to the arguments today.

[00:31:11] Speaker 05:
Thank you.

[00:31:12] Speaker 05:
I'll counsel for the helpful arguments.

[00:31:14] Speaker 05:
This case is submitted and we are adjourned for the day.

[00:31:18] Speaker 00:
Thank you.

[00:31:19] Speaker 00:
Thank you.

[00:31:20] Speaker 05:
It's corporate.

[00:31:21] Speaker 05:
This session stands adjourned.