[00:00:00] Speaker 02:
Yes, counsel.

[00:00:01] Speaker 02:
Good morning, your honors.

[00:00:02] Speaker 02:
Blythe Bach on behalf of Officer McNamara.

[00:00:08] Speaker 02:
This appeal is a very narrow and straightforward appeal.

[00:00:13] Speaker 02:
And the reason why I say narrow is because there are really only a few undisputed facts.

[00:00:19] Speaker 02:
And these are undisputed.

[00:00:20] Speaker 02:
We are not challenging any tribal issues of fact.

[00:00:22] Speaker 02:
We are relying on what the plaintiff says and the portions of the videotape that do not appear to be at issue.

[00:00:30] Speaker 02:
Okay?

[00:00:30] Speaker 02:
So the first undisputed fact is that Officer McNamara had literally just left the corpse of a shooting victim.

[00:00:39] Speaker 02:
And when he left that shooting victim, he came out to the street and a bunch of civilians were yelling at him, he's got a gun, he's got a gun.

[00:00:46] Speaker 02:
He then goes to the restaurant, walks up the stairs, he's the only officer that makes it to the stairs.

[00:00:53] Speaker 02:
And as soon as he does, he sees Green holding a gun.

[00:00:58] Speaker 02:
The gun he's holding up in the air, there's a crowd of people everywhere, and McNamara is concerned for his safety and the safety of everybody around him.

[00:01:11] Speaker 02:
The third fact that's undisputed is that Green did not release the gun until McNamara shot.

[00:01:20] Speaker 02:
Because if you look at the video, in particular the security video, I think it's exhibit I,

[00:01:27] Speaker 02:
you can see that the events happen at the exact same time.

[00:01:33] Speaker 02:
The moment that MacMara shot is when you can see Green releasing the gun.

[00:01:39] Speaker 02:
Until Green released the gun, there was danger.

[00:01:44] Speaker 02:
There was danger to everybody in that restaurant.

[00:01:48] Speaker 02:
And so the Fourth Amendment looks at these cases objectively.

[00:01:53] Speaker 02:
Objectively speaking, how would a reasonable officer have responded?

[00:01:57] Speaker 02:
And here we have an officer who came upon a very chaotic scene, having just left a shooting homicide scene.

[00:02:07] Speaker 02:
And all he knows is the guy has a gun and he's pointing it upwards.

[00:02:11] Speaker 02:
Now, there are facts that Green has brought out in his answering brief and even facts that the district court brought out.

[00:02:19] Speaker 02:
None of those facts are material.

[00:02:21] Speaker 02:
None of those facts matter here.

[00:02:23] Speaker 02:
So for example, Green was apparently a hero.

[00:02:26] Speaker 02:
He was a football player, a hero, a good college student, all that.

[00:02:32] Speaker 02:
But McNamara had no idea that that was the case.

[00:02:35] Speaker 02:
All he knew was that he encountered a man with a gun.

[00:02:40] Speaker 02:
And I'm sorry, I need to interrupt myself because I realized I didn't ask to reserve time.

[00:02:45] Speaker 02:
I'm going to reserve three minutes.

[00:02:47] Speaker 02:
That's fine.

[00:02:47] Speaker 02:
OK, sorry.

[00:02:49] Speaker 02:
And so that's what the Fourth Amendment looks like, looks at.

[00:02:54] Speaker 02:
So would a reasonable officer have responded in this way?

[00:02:58] Speaker 02:
And I can't imagine an officer coming upon the scene seeing a man with a gun who he doesn't know is a hero, he doesn't know he's a football player, he doesn't know any of that.

[00:03:10] Speaker 02:
And the other issue that... Now, the gun was not pointing at him, right?

[00:03:14] Speaker 02:
Right.

[00:03:15] Speaker 04:
The gun was not pointing at Matt.

[00:03:16] Speaker 02:
That is true.

[00:03:17] Speaker 04:
It wasn't pointing at any... It was either up or down.

[00:03:21] Speaker 02:
It was up primarily, and Green makes much of the fact that he, I guess, lowered his arm.

[00:03:28] Speaker 04:
Well, he dropped it.

[00:03:30] Speaker 02:
Right.

[00:03:30] Speaker 02:
But you can see him lowering his arm.

[00:03:33] Speaker 02:
But our position is that until that gun is released, he's still a danger.

[00:03:38] Speaker 02:
Because even lowering his arm is a threat.

[00:03:41] Speaker 02:
That doesn't mean you can't shoot just because your arm is like this instead of like this.

[00:03:46] Speaker 02:
So that's no protection at all.

[00:03:49] Speaker 01:
Can we consider the fact that there were, I don't know, five or six officers there, all of whom were probably vulnerable, and only Officer McNamara shot him?

[00:04:00] Speaker 01:
The others did not.

[00:04:02] Speaker 02:
The district court did make a big point of that, and let me tell you why it's not relevant.

[00:04:06] Speaker 02:
Because you can see this in the video.

[00:04:09] Speaker 02:
There are a bunch of officers, but only McNamara made it to the top.

[00:04:14] Speaker 02:
Only McNamara was confronting Green.

[00:04:17] Speaker 02:
The other officers were way down on the stairs.

[00:04:20] Speaker 02:
In fact, I think two of the officers testified they didn't see anything.

[00:04:25] Speaker 02:
They literally could offer nothing because they couldn't even see.

[00:04:28] Speaker 01:
So the officers were fairly close.

[00:04:30] Speaker 01:
I mean, there were some steps, but these weren't, you know, 30 steps.

[00:04:33] Speaker 01:
There were maybe five or six, just a few steps to the restaurant.

[00:04:36] Speaker 01:
So some of them could have been vulnerable and probably saw similar things that Officer McNamara did.

[00:04:42] Speaker 02:
Potentially, but McNamara was the one leading the charge.

[00:04:45] Speaker 02:
McNamara was the one that was only a few feet away from green.

[00:04:49] Speaker 02:
And McNamara was the very first person to alight upon the scene.

[00:04:53] Speaker 02:
And those other officers, I'm not, I'm sorry.

[00:04:56] Speaker 03:
The video, I mean, you know, looking at it, the gun isn't pointed toward the people inside the restaurant.

[00:05:04] Speaker 03:
The gun isn't pointed toward the police officer.

[00:05:08] Speaker 03:
At what point did

[00:05:10] Speaker 03:
the officers say, drop your gun or what's going on here or some kind of warning.

[00:05:16] Speaker 03:
If you don't drop your gun, I'm going to shoot you.

[00:05:18] Speaker 03:
I mean, it's almost like the fact that he was coming from the scene of a murder influenced him into not seeing what was going on here objectively.

[00:05:32] Speaker 03:
He was like maybe in a rush or something and he didn't follow all the steps before you shoot someone.

[00:05:40] Speaker 02:
Well, he did order, and you can hear on the videotape, not only McNamara, but the other officers as well, ordered Green to drop his gun.

[00:05:49] Speaker 02:
That was an order that they made.

[00:05:52] Speaker 03:
When did they make it?

[00:05:53] Speaker 02:
As they were, well, McNamara, it looks like he made it as he's walk, I'm sorry, what?

[00:05:59] Speaker 03:
With shooting?

[00:06:00] Speaker 02:
No, as he's walking up the stairs, you can hear, and they're all using profanity, and they're telling him,

[00:06:08] Speaker 02:
to drop the gun.

[00:06:09] Speaker 02:
Even the district court said there was a cacophony of officers telling him to drop the gun.

[00:06:15] Speaker 03:
So a cacophony of officers saw him with the gun and only McNamara shot?

[00:06:21] Speaker 02:
Right, because only McNamara was actually confronting him.

[00:06:24] Speaker 02:
Only McNamara was a few feet away from him.

[00:06:27] Speaker 02:
Only McNamara had made it up to that top step.

[00:06:30] Speaker 03:
This sounds like a good argument for the jury.

[00:06:34] Speaker 02:
Well, there would be no jury because we're literally relying on what Green has said.

[00:06:40] Speaker 02:
When I looked at Green's brief, literally the plaintiff's narrative, there's no dispute there.

[00:06:47] Speaker 02:
We're not disputing any facts.

[00:06:48] Speaker 02:
We are not disputing any facts.

[00:06:50] Speaker 02:
The only thing that we're relying on is literally what Green himself has testified to because Green acknowledges that he had the gun up.

[00:07:02] Speaker 02:
And then the other aspect of this is the clearly established law issue, which I think is extremely important.

[00:07:08] Speaker 02:
And the Lopez case that the district court relied on is wildly, wildly inapplicable.

[00:07:15] Speaker 02:
Lopez is a case where a kid is walking down the street doing absolutely nothing wrong.

[00:07:22] Speaker 02:
There's been no reports of criminal activity, nothing.

[00:07:25] Speaker 02:
He's just a kid walking down the street.

[00:07:28] Speaker 02:
And it is true that the gun

[00:07:31] Speaker 02:
In that case, the district court had found that the gun was pointed down and not a threat, and the Ninth Circuit was stuck with that factual finding, something that we don't have here.

[00:07:41] Speaker 04:
But the difference is... Oh, the gun here, the gun is up.

[00:07:43] Speaker 02:
Right.

[00:07:44] Speaker 04:
What difference does it make?

[00:07:45] Speaker 02:
Well, because in Lopez, the court found dispositive that it was pointed to the ground as if somehow the Lopez court at least found that to be not threatening.

[00:07:55] Speaker 02:
But I think it's more important to look at, because when you're looking at clearly established law, it doesn't have to be exactly on all fours.

[00:08:00] Speaker 02:
But it does have to be in the realm of factual similarities.

[00:08:07] Speaker 02:
Lopez is a 13-year-old kid.

[00:08:09] Speaker 02:
who is just walking down the street.

[00:08:12] Speaker 02:
In Lopez, the kid was actually running away from the officers.

[00:08:16] Speaker 02:
Not towards him, away from the officers.

[00:08:20] Speaker 02:
In Lopez, he was in a very desolate area.

[00:08:25] Speaker 02:
The court specifically said nobody was around him.

[00:08:28] Speaker 02:
In other words, nobody had the chance of getting shot, right?

[00:08:32] Speaker 02:
Look at that in comparison to our case.

[00:08:36] Speaker 02:
Green was in the middle of a very chaotic situation.

[00:08:39] Speaker 02:
And fine, he was a hero.

[00:08:41] Speaker 02:
It wasn't of his doing.

[00:08:42] Speaker 02:
He grabbed the gun to try to protect everybody.

[00:08:45] Speaker 02:
That's fine.

[00:08:46] Speaker 02:
That might very well be the case.

[00:08:49] Speaker 02:
But that's not what we look at for qualified immunity.

[00:08:52] Speaker 02:
For qualified immunity, we look at, objectively speaking, how would a reasonable officer have responded?

[00:08:59] Speaker 02:
And that reasonable officer saw somebody holding a gun up in the air.

[00:09:05] Speaker 02:
And in actually in the district attorney's report, they noted that holding a gun up in the air is actually more of a threat than anything, because that's the easiest way to shoot somebody.

[00:09:17] Speaker 02:
Either way, holding a gun like this with your fingers on the gun, and that is undisputed, and that's also on the videotapes, does engender fear in a reasonable officer.

[00:09:30] Speaker 04:
What do we know that McNamara saw

[00:09:36] Speaker 04:
when he got up the top of the stairs.

[00:09:38] Speaker 02:
He testified that the first thing he saw was the gun.

[00:09:42] Speaker 02:
And I guess when Green, and when you look at the videotapes, you can understand that.

[00:09:44] Speaker 02:
Because when Green is going through the glass door, the gun sort of leads.

[00:09:50] Speaker 02:
And then Green is holding the door open, it looks like.

[00:09:54] Speaker 04:
Well, when you look at the first couple of videos, it looks like Green is inside.

[00:09:59] Speaker 04:
You can barely see.

[00:10:02] Speaker 04:
I guess in his left hand, the gun is up, and you can see a person.

[00:10:08] Speaker 04:
Right?

[00:10:09] Speaker 04:
Is that what?

[00:10:10] Speaker 02:
I didn't really see a person, but he does come out of that glass door, yes.

[00:10:15] Speaker 02:
And you do see him momentarily behind the glass door.

[00:10:19] Speaker 02:
I'm not sure if McNamara saw that.

[00:10:21] Speaker 02:
All we know, McNamara testified that the first thing he saw was a gun.

[00:10:25] Speaker 02:
And when you look at the videotape, you see that Green leads with his gun as he leaves.

[00:10:32] Speaker 04:
Okay.

[00:10:34] Speaker 04:
Did you want to save, do you have anything else you want to make or do you want to save your remainder time?

[00:10:38] Speaker 02:
I want to see if there, unless the panel has any questions whatsoever.

[00:10:42] Speaker 02:
Thank you.

[00:11:03] Speaker 00:
Good morning, your honor.

[00:11:04] Speaker 00:
May it please the court?

[00:11:06] Speaker 00:
Can I start actually?

[00:11:07] Speaker 00:
I'm sorry.

[00:11:08] Speaker 00:
Yes.

[00:11:09] Speaker 00:
All right.

[00:11:09] Speaker 00:
Excellent.

[00:11:09] Speaker 00:
Sorry.

[00:11:11] Speaker 00:
Good morning, your honors.

[00:11:12] Speaker 00:
May it please the court?

[00:11:13] Speaker 00:
Patrick Blonel on behalf of the plaintiff appellee.

[00:11:19] Speaker 00:
This is a case that has been heard actually in this court before, dozens of times over the decades.

[00:11:26] Speaker 00:
It's a harrowing gesture case.

[00:11:28] Speaker 00:
Did a further movement occur?

[00:11:30] Speaker 00:
Because we have an armed, non-threatening suspect that was fired upon by an officer.

[00:11:36] Speaker 00:
And we have video evidence, fortunately, that shows the very last second, the very last image that McNamara would have seen, which is my client who had in compliance, immediate compliance, with officers' order to drop the gun.

[00:11:52] Speaker 00:
You can see him.

[00:11:53] Speaker 00:
He opens the door.

[00:11:54] Speaker 00:
He sees the officers.

[00:11:56] Speaker 00:
And the gun isn't just being held like this.

[00:11:58] Speaker 00:
It's being used to push open the door.

[00:12:01] Speaker 00:
And he lowers the gun, as the officer is saying, drop the gun, and he raises his right hand in a universal term of surrender.

[00:12:09] Speaker 00:
He's doing exactly what officers want you to do when they make verbal commands.

[00:12:14] Speaker 00:
And the officers elicited the exact response they wanted, which is why five other officers did not shoot.

[00:12:23] Speaker 00:
And McNamara shot him.

[00:12:26] Speaker 00:
Not just once, but five times.

[00:12:29] Speaker 00:
Five times when the gun is in a non-threatening position and he was in the act of surrendering.

[00:12:38] Speaker 00:
Every single Ninth Circuit case and even Supreme Court case going back to Tennessee v. Garner has found shooting a person under these circumstances

[00:12:47] Speaker 00:
essentially non-threatening suspect who's armed as being a violation of the Constitution.

[00:12:53] Speaker 00:
If we're wondering why he shot, well, you can just take McNamara at his word.

[00:12:58] Speaker 00:
He texted just hours later why he shot him.

[00:13:01] Speaker 00:
He said it was because he was an N-word with a gun in the Wild West.

[00:13:06] Speaker 00:
That is not a sufficient reason to shoot a person.

[00:13:09] Speaker 04:
But we look at this objectively.

[00:13:13] Speaker 00:
Of course, Your Honor.

[00:13:14] Speaker 00:
I would note, though,

[00:13:16] Speaker 00:
We do take an account of the officer's own statement as to why he shot.

[00:13:20] Speaker 00:
He's saying he shot because at some point the gun was pointed into the restaurant.

[00:13:25] Speaker 00:
But at summary judgment and in these briefs, they can't point to any image where that's happening.

[00:13:31] Speaker 00:
And no other officer saw that.

[00:13:34] Speaker 00:
And also, when he had the opportunity to speak, not to justify or when he thought someone was listening, but when he was being honest, he gave the exact reason why he shot, which is he saw an armed black man.

[00:13:49] Speaker 00:
This court and the Supreme Court have said just being armed is not enough to justify deadly force.

[00:13:57] Speaker 01:
What should we do with the fact that Officer McNamara, before he came here, was at a scene where there was a shooting, a homicide,

[00:14:04] Speaker 01:
I guess they had not found the suspect yet, and maybe 50 yards or so, 100 yards, he goes to this place.

[00:14:12] Speaker 01:
Would a reasonable officer think that these two were related, so if he sees a gun, he would view that as more dangerous, even though it wasn't pointed at him?

[00:14:22] Speaker 00:
Sure.

[00:14:23] Speaker 00:
No, that should be taken into consideration.

[00:14:25] Speaker 00:
But we also have to take into consideration that when he was going to the restaurant, people stopped him and said that,

[00:14:33] Speaker 00:
He asked, are they shooting?

[00:14:35] Speaker 00:
And they said, no, they're just fighting or wrestling over the gun.

[00:14:38] Speaker 00:
So now he has an additional piece of information.

[00:14:41] Speaker 00:
The gun's not being fired.

[00:14:42] Speaker 00:
It hasn't been used inside the restaurant.

[00:14:45] Speaker 00:
So that's counterbalance.

[00:14:47] Speaker 00:
Also, even if that is the case, you can't just go up and shoot someone if you don't know what's going on.

[00:14:54] Speaker 00:
That's not what the law says.

[00:14:55] Speaker 00:
And what we know from estate versus Aguirre versus County of Riverside

[00:15:00] Speaker 00:
a Ninth Circuit case, which this court stated, Morris established that even in volatile, intense situations, officers must not use deadly force against non-threatening suspects, even if those suspects are armed.

[00:15:16] Speaker 00:
So we're describing a chaotic situation.

[00:15:18] Speaker 00:
It doesn't matter.

[00:15:20] Speaker 00:
They need to see some harrowing gesture.

[00:15:23] Speaker 00:
I counted 10 cases.

[00:15:24] Speaker 00:
Ninth Circuit cases leading up to this one, where the court has repeatedly held that.

[00:15:29] Speaker 00:
It doesn't matter if they're armed.

[00:15:30] Speaker 00:
You need some harrowing gesture.

[00:15:33] Speaker 00:
They haven't pointed at any harrowing gesture.

[00:15:35] Speaker 00:
I mean, let's just be real.

[00:15:36] Speaker 00:
He was surrendering.

[00:15:38] Speaker 00:
And that's what it looked like.

[00:15:39] Speaker 00:
And that's what it looked like to five other officers.

[00:15:41] Speaker 00:
And so a reasonable officer would not have fired.

[00:15:44] Speaker 00:
And at best, a reasonable jury needs to decide how to interpret these frames.

[00:15:52] Speaker 01:
When you look at the video, it seems like it occurred around the same time.

[00:15:58] Speaker 01:
Unfortunately, Mr. Green was just at the wrong place at the wrong time in no fall of his own.

[00:16:02] Speaker 01:
and looks like there's maybe two or three seconds before he drops a gun before someone says drop the gun it's clear when you look at the video slowly he probably doesn't hear them because he's looking inside the restaurant there's a lot of ruckus so he may not have heard it and when he turns around I think he finally does hear it and then he immediately drops it but that occurred so quickly

[00:16:24] Speaker 01:
You know, it's one of those things, you know, do we second-guess in that kind of situation what an officer does?

[00:16:30] Speaker 01:
I mean, it's easier to see exactly what happened when you look at the video snapshot, but it's just unfortunate.

[00:16:36] Speaker 01:
But, you know, what happens in real time, you know, it's sometimes hard to second-guess an officer's judgment.

[00:16:43] Speaker 00:
Well, what you're talking about is exactly what this Ninth Circuit confronted in Longoria versus Pinal County, which is a Ninth Circuit case from 2017.

[00:16:54] Speaker 00:
there was several officers confronting a suspect who had gone on a long car chase.

[00:17:00] Speaker 00:
And they were trying to get him to surrender.

[00:17:03] Speaker 00:
And he was outside of his car and he was waving his hands around.

[00:17:07] Speaker 00:
One of the officers, one only, several other officers did not shoot, one of them shot.

[00:17:13] Speaker 00:
He said,

[00:17:15] Speaker 00:
I thought I saw a gun in his hand and him take a shooting stance.

[00:17:19] Speaker 00:
There was video evidence, meaning there was an iPhone camera and a car camera, of what the guy was doing.

[00:17:25] Speaker 00:
One, he didn't have a gun in his hand, and two, no one could identify in the video where he took the shooting stance.

[00:17:32] Speaker 00:
What the court said there was, at the end of the day,

[00:17:36] Speaker 00:
interpretation of what he was doing, whether or not he made a shooting stance at some point or some sort of harrowing gesture just based off the video, how to interpret that was for a jury to find.

[00:17:49] Speaker 00:
So similarly here, even if we make the argument, well, it moved quickly.

[00:17:54] Speaker 00:
I would argue that one, taking the facts in my favor, he made clear and obvious movements of surrender.

[00:18:02] Speaker 00:
And even if not, you look to Longoria,

[00:18:05] Speaker 00:
And it's for a jury to decide how to interpret frame by frame video evidence.

[00:18:11] Speaker 00:
And that's a Ninth Circuit case denying qualified immunity on that very issue.

[00:18:17] Speaker 04:
So let's assume, just for purposes of discussion here, that a reasonable jury could find a constitutional violation.

[00:18:29] Speaker 04:
So they're asserting, well, OK, under the circumstances here,

[00:18:34] Speaker 04:
given the right that's at stake here in this context, law was not clearly established.

[00:18:42] Speaker 04:
So what law should have put the officer on reasonable notice that shooting in these circumstances would violate a person's constitutional rights, Fourth Amendment rights?

[00:18:58] Speaker 00:
Sure.

[00:18:58] Speaker 00:
There's so many to pick from.

[00:19:00] Speaker 00:
What's your best?

[00:19:01] Speaker 00:
I would say let's go

[00:19:03] Speaker 00:
Principle by principle, first and foremost, a state of low pass v. Galhouse.

[00:19:08] Speaker 00:
The appellant described the circumstances wildly different from how they were and how the court ruled them.

[00:19:16] Speaker 00:
They are different, but it was a worse situation.

[00:19:20] Speaker 00:
The kid had what looked like an AK-47.

[00:19:23] Speaker 00:
And he was walking, and the cops actually called to him multiple times to drop the gun.

[00:19:30] Speaker 00:
He didn't, and this isn't over a second.

[00:19:33] Speaker 00:
Finally, the kid turns around, and as he's turning around, this is the factual dispute.

[00:19:39] Speaker 00:
The gun is coming upwards.

[00:19:42] Speaker 00:
There's no video evidence to dispute it.

[00:19:44] Speaker 00:
It's just the officer's word.

[00:19:45] Speaker 00:
So the gun is coming upwards, and he's turning around.

[00:19:47] Speaker 00:
What the Ninth Circuit said was, even there, which is a way more harrowing gesture, a gun coming up towards an officer, that

[00:19:54] Speaker 00:
The officer was on notice that if you call out to someone who has their back to you, that you should expect for them to turn around and that the gun may move in some manner and not to just fire.

[00:20:06] Speaker 00:
You need to give them time to comply with orders.

[00:20:09] Speaker 00:
That is almost identical to what happened here.

[00:20:12] Speaker 00:
You have a man whose back is to you.

[00:20:14] Speaker 00:
Officers are shouting, drop the gun.

[00:20:16] Speaker 00:
He should have expected him to do exactly what he asked, which is to drop the gun, right?

[00:20:22] Speaker 00:
So he turns, he hears.

[00:20:24] Speaker 00:
He lowers the gun in compliance with the order, so the gun's all the way down, then he shoots.

[00:20:31] Speaker 00:
I can't fathom what the officer expected two of them have done.

[00:20:37] Speaker 00:
Basically, what we're trying to say is that there was no way for Mr. Green to have exited that restaurant without getting shot.

[00:20:45] Speaker 00:
He was getting shot, no matter what.

[00:20:47] Speaker 00:
Is that what we're saying?

[00:20:49] Speaker 00:
It just doesn't make sense.

[00:20:51] Speaker 00:
And that's because a state of Lopez V. Galehouse.

[00:20:54] Speaker 00:
It's also because of, I mean, we can look to Colonel V. Ridgecrest Police.

[00:21:01] Speaker 00:
That's a case where a guy had a submachine gun.

[00:21:04] Speaker 00:
And he was running through a house.

[00:21:06] Speaker 00:
And it was based off a domestic violence call.

[00:21:09] Speaker 00:
And the machine gun was pointed upwards.

[00:21:11] Speaker 00:
And the officer said he was turning around with it or he might fire at someone.

[00:21:14] Speaker 00:
The officer fired.

[00:21:16] Speaker 00:
But because the gun wasn't being pointed at anyone or raised at anyone, the court said no.

[00:21:21] Speaker 00:
It has to be a furtive gesture.

[00:21:24] Speaker 00:
The city of San Jose knows better than anyone.

[00:21:27] Speaker 00:
Two or three of their cases have been denied this year, qualified immunity, where it was a furtive movement.

[00:21:33] Speaker 00:
One of them was a guy with a rifle that was walking towards a school with children.

[00:21:38] Speaker 00:
And the question was, did he make the officer that shot, and the other ones didn't, the officer that shot said he bowed out his arm like he was going to grab a gun or raise it up.

[00:21:50] Speaker 00:
Because the dispute of fact is whether or not to look at that gesture as threatening or non-threatening, it was clearly established at that time that an officer can't shoot a non-threatening suspect unless there's a furtive harrowing gesture.

[00:22:05] Speaker 00:
The decision of whether or not to consider that conduct as a harrowing gesture needs to be decided by a jury.

[00:22:11] Speaker 00:
So here, same thing.

[00:22:13] Speaker 00:
If we look at the video frame by frame and need to interpret how to look at Kayon's gesture,

[00:22:20] Speaker 00:
It's for a jury to decide whether or not it was harrowing or whether or not it was submissive.

[00:22:26] Speaker 00:
I posed to the court to even think of a better way in which he could have surrendered in that moment.

[00:22:35] Speaker 00:
He lowered the gun, dropped it, and raised his other hand in surrender.

[00:22:38] Speaker 00:
I just can't think of one, except the only reason I can think of why he shot is what he put in text message to his friend.

[00:22:49] Speaker 01:
We've also cautioned that we can't look at it frame by frame.

[00:22:54] Speaker 01:
Repeatedly said, well, it's easy for us in our chambers or our law offices to do it frame by frame and analyzing it.

[00:23:01] Speaker 01:
But at the scene, we're not supposed to and assessing it to make sure that we're in their shoes, not in our shoes, after the fact, frame by frame.

[00:23:12] Speaker 01:
So I don't know how much weight we can give that.

[00:23:15] Speaker 00:
Well, then you go right back to denying qualified immunity, because in Longoria versus Pena County, this court said, if we have to interpret frame by frame video evidence, which was what they were trying to do there, they said then it's for a jury to decide how to interpret the frame by frame video evidence, whether or not it's a harrowing gesture.

[00:23:34] Speaker 00:
And I'll read right from it.

[00:23:36] Speaker 00:
This is Longoria, and it says,

[00:23:45] Speaker 00:
It's for a jury to decide if in the process of surrendering it's clearly established such that it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

[00:23:57] Speaker 00:
So for a jury to decide if they were the person, those videos suggested the person was surrendering.

[00:24:05] Speaker 00:
Conversely, if however Rankin reasonably perceived that Longoria posed a threat of serious physical harm to Rankin,

[00:24:13] Speaker 00:
or other officers, then he could have lawfully used deadly force.

[00:24:17] Speaker 00:
And what he said is, what the court said is, we're presented with a question of pure fact and not a question of law or mixed fact and law.

[00:24:25] Speaker 00:
And similarly here, a jury needs to decide whether or not this gesture was submissive or threatening.

[00:24:34] Speaker 00:
And so that case alone, the 2017 Longoria case, puts the officer on notice.

[00:24:41] Speaker 00:
OK.

[00:24:43] Speaker 04:
There were a number of cases that showed that the law was clearly established.

[00:24:48] Speaker 04:
You cited State of Lopez for now.

[00:24:54] Speaker 00:
Sure.

[00:24:55] Speaker 00:
So I would say.

[00:24:56] Speaker 04:
Any others you want to make sure we take a look at?

[00:24:58] Speaker 00:
Sure.

[00:24:59] Speaker 00:
CV Bind Through Villegas versus City of Anaheim.

[00:25:03] Speaker 00:
That's one where the gun was pointed up.

[00:25:05] Speaker 00:
And there was a dispute of fact about whether or not the officers gave the guy enough time to drop the gun.

[00:25:11] Speaker 01:
The Vegas is the one with the rifle, right?

[00:25:13] Speaker 01:
Correct.

[00:25:14] Speaker 01:
Yeah, and that one, the guy was holding the rifle, long gun, by the barrel.

[00:25:19] Speaker 01:
So for, you know, it would take time to move the long gun, to put it in his hand, to put it in the trigger, so.

[00:25:26] Speaker 00:
That's not entirely accurate.

[00:25:29] Speaker 00:
One of the officers said he was holding it by the barrel.

[00:25:31] Speaker 00:
Another officer said he was holding it normally in upwards.

[00:25:34] Speaker 01:
Yeah, there's a- And then another officer said he was- And there's factual dispute, so they can resolve it.

[00:25:37] Speaker 01:
One of the officers says he's holding a long gun,

[00:25:39] Speaker 01:
By the barrel, it's going to take time for that person to put it to use.

[00:25:44] Speaker 00:
Yeah, but either way, in denying the summary judgment on excessive force, the court said NCV, by and through Villegas, they denied it because without providing a warning or sufficient time to comply or observing, Villegas moved toward the trigger or pointed at an officer.

[00:26:06] Speaker 00:
So the same thing.

[00:26:07] Speaker 00:
Every one of these cases say the same thing.

[00:26:09] Speaker 00:
I also have Cruz versus City of Anaheim is another one.

[00:26:18] Speaker 00:
I have Colonel versus Ridgecrest Police, which is with a submachine gun.

[00:26:24] Speaker 00:
I have Dominguez versus Pina, which is a guy allegedly reaching into a car for a gun.

[00:26:31] Speaker 00:
I have Harris v. Roderick, which is a 1997 case.

[00:26:35] Speaker 00:
I have Peck v. Montoya, which is a

[00:26:39] Speaker 04:
All right.

[00:26:41] Speaker 04:
All right.

[00:26:42] Speaker 04:
Your time is pretty much up.

[00:26:45] Speaker 00:
That's fine.

[00:26:46] Speaker 04:
We've got your briefs.

[00:26:47] Speaker 04:
Okay.

[00:26:49] Speaker 04:
Thank you, Your Honor.

[00:26:50] Speaker 04:
Thank you.

[00:26:51] Speaker 04:
We have some rebuttal time for the city or for Officer McNamara.

[00:26:58] Speaker 02:
I think we need to be careful.

[00:26:59] Speaker 02:
There is a, and I know this panel knows this, there is a wealth of case law recognizing that we can't look at this with 2020 hindsight and that officers

[00:27:08] Speaker 02:
are confronted with these kind of situations, and we can't second-guess their split-second decisions.

[00:27:13] Speaker 02:
I think this is a textbook case wherein this officer was justified, and I think I really encouraged the panel, and it sounds like you already have, to look at these videotapes, because the videotapes really convey the danger and the stress.

[00:27:31] Speaker 02:
As McNamara described it, the stress was through the roof.

[00:27:35] Speaker 02:
And everybody was anxious.

[00:27:37] Speaker 02:
Everybody was concerned.

[00:27:38] Speaker 02:
And we had a man with a gun in the middle of a restaurant.

[00:27:42] Speaker 02:
I'd like to just point out the Greens' counsel just argued that it's a factual dispute about whether he surrendered.

[00:27:50] Speaker 02:
No.

[00:27:51] Speaker 02:
Whether he surrendered is a legal conclusion for this court to make.

[00:27:55] Speaker 02:
The facts, the undisputed facts, are that he was holding the gun up.

[00:28:01] Speaker 02:
And let's just say the undisputed fact was that he lowered his arm.

[00:28:05] Speaker 02:
But surrendering is not a fact, it's a legal conclusion.

[00:28:07] Speaker 04:
What case says that raising your hand is a matter of law, that's a legal determination?

[00:28:17] Speaker 02:
No, it's just a fact.

[00:28:19] Speaker 02:
I'm just saying as a human being, that's a fact.

[00:28:22] Speaker 02:
Whereas the issue of whether or not he was surrendering is a legal conclusion for the court to make.

[00:28:27] Speaker 04:
I'm saying what case says that?

[00:28:29] Speaker 02:
Just in my own brain.

[00:28:31] Speaker 02:
And I think it's reasonable, because what I'm... Well, it may be reasonable, but it does help to have cases.

[00:28:41] Speaker 02:
Well, no, I'll tell you, there's plenty of cases.

[00:28:43] Speaker 02:
The Wade County of Lyon case, the victim did not even have a gun.

[00:28:49] Speaker 02:
And he just, he went after the... The wife, I think, had called him in as a suicide in.

[00:28:55] Speaker 02:
He had gone after the officers, and when he charged them,

[00:28:58] Speaker 02:
They shot him.

[00:29:00] Speaker 02:
And that is what has happened before.

[00:29:05] Speaker 02:
And that's where the courts recognize that in these kind of situations, we can't look at it with a 2020 hindsight.

[00:29:14] Speaker 02:
We have to look at it as the officer saw it.

[00:29:17] Speaker 02:
Now, the other thing I wanted to mention is that Green just said that the five author officers thought that Green was surrendering.

[00:29:25] Speaker 02:
Absolutely not.

[00:29:26] Speaker 02:
There's no evidence of that.

[00:29:28] Speaker 02:
There were officers, some of the officers said they didn't see anything.

[00:29:30] Speaker 02:
Some of the officers didn't necessarily support McNamara, but they didn't say anything like, oh yeah, Green was surrendering.

[00:29:37] Speaker 02:
There weren't any positive statements like that.

[00:29:39] Speaker 02:
That's just not in the record.

[00:29:41] Speaker 02:
The other officers, the record is sort of basically unclear about what they thought and what they perceived.

[00:29:46] Speaker 02:
But my position is that those other officers are not relevant, because as I said before, Mack Demara is the only one that made it up to the top of the steps.

[00:29:55] Speaker 04:
So let me ask you this.

[00:29:56] Speaker 04:
Is it your position that no reasonable jury could find a constitutional violation here?

[00:30:02] Speaker 04:
Or is it, yeah, they could find a constitutional violation here, but there's just no clearly established law.

[00:30:08] Speaker 04:
And my clients should prevail on, Mr. Officer McNamara should prevail on.

[00:30:13] Speaker 02:
My position is that as a matter of law, these undisputed facts are not material.

[00:30:18] Speaker 02:
They do not amount.

[00:30:20] Speaker 04:
I didn't ask whether they were material.

[00:30:21] Speaker 04:
I asked you whether or not a jury could find a Fourth Amendment violation.

[00:30:29] Speaker 02:
I would say not because at that point, in your view, he loses both.

[00:30:35] Speaker 04:
No jury, no reasonable jury could find a constitutional violation.

[00:30:39] Speaker 04:
And even if they could, the court should grant qualified immunity.

[00:30:43] Speaker 02:
Right.

[00:30:43] Speaker 02:
Because the issue for fourth amendment, there's the three factors.

[00:30:48] Speaker 02:
And one of the factors in the kit, the courts over and over again, say is the most important factor is whether or not the officer felt like safety was being threatened.

[00:30:57] Speaker 02:
And I think there's no way when you look at these videotapes to conclude otherwise, because Green might have been a hero, but it was terrifying what McNamara saw.

[00:31:08] Speaker 02:
And that was very scary to see a man in a crowded restaurant where everybody's claiming he's got a gun and McNamara's just left the corpse of a shooting victim.

[00:31:19] Speaker 04:
You keep saying crowded, but that's what I kept asking.

[00:31:21] Speaker 04:
What did McNamara see?

[00:31:24] Speaker 02:
Well, if you look at the videos, there's just people everywhere, and they're walking up.

[00:31:28] Speaker 04:
There are people outside.

[00:31:29] Speaker 02:
Yeah.

[00:31:30] Speaker 04:
But what did he see in the foyer?

[00:31:34] Speaker 02:
I think from the videotapes, it looks like you can see that there are, oh, and actually, and McNamara testified that when he came up, you see in the videotape that he goes to his left, and he looks in the window.

[00:31:43] Speaker 02:
And he testified that when he looked in the window, he saw a bunch of civilians.

[00:31:48] Speaker 02:
I think he saw even a fight.

[00:31:50] Speaker 02:
But he did see people in the restaurant, and he testified to that.

[00:31:54] Speaker 02:
And also, the officers saw there were civilians.

[00:31:57] Speaker 02:
If you look at the videotape, it's a public street.

[00:32:00] Speaker 02:
And so there's lots of people that are potential victims to him.

[00:32:06] Speaker 04:
You're over your time.

[00:32:07] Speaker 02:
Thank you so much, Your Honors.

[00:32:09] Speaker 04:
Thank you.

[00:32:10] Speaker 04:
Thank you to both sides.

[00:32:11] Speaker 04:
We appreciate your arguments.

[00:32:12] Speaker 04:
Well done today.

[00:32:13] Speaker 02:
Thank you, Your Honor.