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

[00:00:01] Speaker 04:
May it please the Court, my name is Roger Gritteau.

[00:00:04] Speaker 04:
I represent the appellants in this case, the Hawatme family, in what is a very tragic case, quite obviously.

[00:00:12] Speaker 04:
It must be through the briefing that you'll be able to discover that.

[00:00:15] Speaker 03:
I would just say, Council, not to interrupt you at the beginning, but I think, and my colleagues can speak for themselves, but I believe that the entire panel agrees with you that this is a horribly tragic circumstance and case, and whatever the result of the legal issues, we certainly express our sympathy and condolences to everyone concerned.

[00:00:41] Speaker 03:
I understand, thank you, Your Honor.

[00:00:43] Speaker 04:
The difficulty with this case is that the case turned tragic for a number of reasons, you know.

[00:00:51] Speaker 04:
As set forth in the briefing, of course, you know, we had the events that occurred in the apartment and then we had the subsequent hostage situation where Jason Bourne, the perpetrator of two murders and a substantial bodily injury, takes the child and puts the child in the escalator in the parking lot.

[00:01:11] Speaker 04:
Well, obviously, at that point in time, no one can deny there's a hostage situation.

[00:01:18] Speaker 04:
There's exigent circumstances going on everywhere with the 911 calls.

[00:01:23] Speaker 04:
But what happens after that is the problem for the case.

[00:01:28] Speaker 04:
It is the turning point.

[00:01:31] Speaker 04:
And the question is whether or not there is, in fact, a turning point or is it going to be linked to one single event?

[00:01:39] Speaker 04:
And the reason for that is the events occurred in the apartment at approximately 11 o'clock, maybe a little bit before 11 o'clock, at which point

[00:01:48] Speaker 04:
Jason born takes a hostage a live hostage He gets on 9-1-1 call in the escalate asking for a helicopter means of egress.

[00:01:58] Speaker 04:
He's looking to escape And he's got Joseph as a hostage Joseph's a 12 year old boy he just watched this event with the family go on and

[00:02:10] Speaker 04:
the property.

[00:02:11] Speaker 04:
And then they found out that HPD is arriving at the property, that they are focusing all their attention on the apartments and trying to locate Mr. Bourne.

[00:02:20] Speaker 04:
But eventually discover some minutes later, at approximately about 1118 and 47 seconds, they discovered the escalator in the parking lot.

[00:02:32] Speaker 04:
It's running.

[00:02:33] Speaker 04:
The lights are on.

[00:02:35] Speaker 04:
The brake lights are on.

[00:02:40] Speaker 04:
They've already been on property since 1104.

[00:02:43] Speaker 04:
And from 1107 in the morning, Mr. Bourne had been on a call with 911 operator for Henderson Police Department.

[00:02:54] Speaker 04:
And at that point in time, negotiators have been activated, SWAT was on its way, and Sergeant Clear, at the time, now known as Smith, came upon the scene and then decided to essentially, in our view of the world, rush to judgment, so to speak.

[00:03:15] Speaker 04:
He had already been in the car at that point in time, 8 minutes, having conversations with 911.

[00:03:26] Speaker 04:
There was no brandishing of firearms at the officers.

[00:03:30] Speaker 04:
There was no threats made to the officers.

[00:03:36] Speaker 03:
Your successor failure in this case turns on whether the boy was seized or not?

[00:03:44] Speaker 03:
Of course.

[00:03:45] Speaker 03:
OK.

[00:03:45] Speaker 03:
So how do you deal with the Villanova case?

[00:03:52] Speaker 03:
I think that the court made it clear that if somebody is just a passenger who is shot,

[00:04:03] Speaker 03:
even if they're aiming at the driver, there is a seizure.

[00:04:08] Speaker 03:
But the court goes on and talks about cases from many other jurisdictions distinguishing it from a hostage situation.

[00:04:18] Speaker 03:
So first, how do you deal with Villanueva?

[00:04:21] Speaker 03:
But second, do you have any case

[00:04:24] Speaker 03:
in which any court of appeals, ours or one of our sister circuits, has found a seizure in a case where it is the hostage who is shot, vice the passenger or a bystander.

[00:04:39] Speaker 04:
obviously there's many cases on a hostage being shot.

[00:04:44] Speaker 04:
Where it's been held to be a seizure.

[00:04:46] Speaker 04:
Understood, understood.

[00:04:48] Speaker 04:
Not under these facts.

[00:04:50] Speaker 04:
And that's the problem.

[00:04:51] Speaker 04:
These facts are different.

[00:04:53] Speaker 04:
And if I may give me a moment just to set up the predicate.

[00:04:58] Speaker 04:
We all know based on the briefing

[00:04:59] Speaker 04:
the child.

[00:05:03] Speaker 04:
The child was taken according to officer Pendleton.

[00:05:20] Speaker 04:
He believed he had Jason born that we did that the deposition is in the

[00:05:28] Speaker 04:
that he did not have the ability to do so.

[00:05:31] Speaker 04:
And that's when he was at least from it from his

[00:05:36] Speaker 04:
there is a 27-round volley of fire into the car indiscriminately.

[00:05:43] Speaker 04:
And if we could show pictures, it's frankly obscene.

[00:05:47] Speaker 04:
The car has bullets.

[00:05:49] Speaker 04:
It was an Escalade with limousine-tinted windows.

[00:05:54] Speaker 04:
And after the shot being fired by Sergeant Clear, who's basically across from the front of the driver's door,

[00:06:02] Speaker 04:
with Pendleton being at about 45 degrees to the driver's door.

[00:06:06] Speaker 04:
The shot, the shot was taken.

[00:06:07] Speaker 04:
There was no notice to anybody there not to shoot or to stand down that there was going to be a shot.

[00:06:14] Speaker 01:
Could I, and I want you to continue with the predicate in answering the judge's question.

[00:06:21] Speaker 01:
If you can clarify, is there anything in the record that explains or suggests why that flurry of shots occurred?

[00:06:30] Speaker 04:
short of contagious gunfire, Your Honor?

[00:06:33] Speaker 04:
No.

[00:06:35] Speaker 04:
Basically what happened is you had people, officers that were behind the vehicle, some probably 70, 80 feet away.

[00:06:46] Speaker 04:
At the corner of a building, we had three officers there.

[00:06:49] Speaker 04:
There were several officers behind the vehicle and one to the left of the vehicle.

[00:06:54] Speaker 04:
They all just began shooting.

[00:06:56] Speaker 04:
Literally.

[00:06:57] Speaker 04:
And at the end of the day, there were 27 rounds after the one shot that is alleged to have killed Jason Bourne in the motion to dismiss.

[00:07:08] Speaker 04:
Obviously, the facts are to be taken as true and in a favorable reference to the moving party in this case, the plaintiff.

[00:07:17] Speaker 04:
That's really the state of affairs.

[00:07:19] Speaker 04:
It shocks the conscience, I apologize.

[00:07:22] Speaker 01:
But I take it since as you were answering Judge Bennett, you weren't telling us of a case that involved a hostage situation where the victim of the hostage would be deemed seized by the government.

[00:07:36] Speaker 01:
And so what your argument seems to be to be is in that two second interval, the boy was no longer a hostage and there was a seizure.

[00:07:47] Speaker 04:
And that's exactly what we've pled in the complaint and argued.

[00:07:51] Speaker 01:
I mean, I'll just say that I'm a little skeptical of that argument just because Graham tells us, you know, in a reasonableness type inquiry, and I know it's a little bit of a different context here that

[00:08:03] Speaker 01:
we are not to question, sit here in 2020 hindsight and start to question the immediate and urgent actions in these situations.

[00:08:14] Speaker 01:
And so I'm having a hard time seeing how in that small frame of time, someone could no longer be a hostage during this span of time.

[00:08:24] Speaker 01:
Can you speak to that?

[00:08:26] Speaker 04:
Absolutely.

[00:08:28] Speaker 04:
We believe that delivered indifference is the standard to apply here in this case.

[00:08:33] Speaker 04:
And in this particular case, we believe that there was time for planning.

[00:08:37] Speaker 04:
That's the whole point.

[00:08:38] Speaker 04:
If you started the 911 calls at 11 o'clock in the morning, you have an ongoing dialogue that's been going on in another vignette, if you will, with HPD and 911 operator and marshaling services to get over there to the Stone Lake apartment complex.

[00:08:57] Speaker 04:
and then you have an officer on scene, which you would expect would be imputed with that knowledge, comes upon the vehicle when she is standing outside the vehicle and there's a conversation with 911 going on inside.

[00:09:10] Speaker 04:
And it's obviously my client's position had they not rushed the vehicle and negotiator or SWAT could have resolved this and his child would still be alive.

[00:09:18] Speaker 04:
I mean, that's their opinion and I understand that.

[00:09:20] Speaker 00:
As to this question of a seizure,

[00:09:24] Speaker 00:
I was hoping you could speak to the Supreme Court's decision in Torres versus Madrid, in which they held, I'm quoting, that a seizure requires that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.

[00:09:41] Speaker 00:
And I mean, I just am wondering how that applies here, because it seems like Joseph's freedom of movement was, this was all initiated by Bourne and not

[00:09:52] Speaker 00:
and not by the officer.

[00:09:54] Speaker 00:
So how do we differentiate that here?

[00:09:57] Speaker 04:
I understand, Your Honor.

[00:09:59] Speaker 04:
The difficulty with this case, and we talk about case law, is the analogy goes to stopping cases, right?

[00:10:05] Speaker 04:
It goes to car chases and stopping cases.

[00:10:08] Speaker 04:
Well, it's not a shark car chase,

[00:10:11] Speaker 04:
But it's also a seizure of the vehicle, if you will.

[00:10:15] Speaker 04:
The vehicle was barricaded, couldn't be moved, couldn't go anywhere.

[00:10:18] Speaker 04:
They were seized inside the vehicle.

[00:10:20] Speaker 04:
And then the question is, if it's treated as a hostage, we don't seize the hostage, right?

[00:10:27] Speaker 04:
I mean, because the objective is generally of the officers to attempt to eradicate the threat to the hostage.

[00:10:35] Speaker 04:
But at the point where the conduct

[00:10:38] Speaker 04:
And again, the difficulty here is the conduct shocks the conscience if you think about it.

[00:10:44] Speaker 04:
I mean, and then defendants allege that the shooting of 27 rounds randomly into a car where you're hitting bumpers and windshields with no great likelihood you're shooting born is highly, highly outrageous.

[00:11:00] Speaker 04:
Because at the point they take a kill shot,

[00:11:03] Speaker 04:
There should have been a stand down.

[00:11:05] Speaker 04:
And at that moment in time, they used force to, well, to obviously eliminate born as a threat.

[00:11:14] Speaker 04:
But after that, they shouldn't have shot.

[00:11:16] Speaker 04:
They shouldn't have had the contagious gunfire.

[00:11:19] Speaker 04:
I mean, there is a substantive due process argument here for the constitutional rights of Joseph at that point.

[00:11:28] Speaker 00:
So I guess really your argument is that after the initial shot that now it's the officers putting into place this situation.

[00:11:39] Speaker 04:
Correct.

[00:11:39] Speaker 04:
That is correct.

[00:11:40] Speaker 04:
But for those shots, Joseph would probably or could be still alive.

[00:11:46] Speaker 03:
even if we were to accept that this could be a constitutional violation, notwithstanding

[00:11:55] Speaker 03:
Villanueva and notwithstanding the Supreme Court's determinations, what would have put, other than at a high level of generality, these officers on notice that continuing to fire at a car containing someone who they knew was a recent murderer and had been doing horrible things

[00:12:21] Speaker 03:
to the decedent, what would have put them on notice other than at a high level of generality that continuing to fire would be violating the constitutional rights of the boy?

[00:12:35] Speaker 04:
If born was dead, Your Honor, there's significant case law that says you can't kill an innocent person who is unarmed.

[00:12:43] Speaker 04:
And in this particular case, Joseph was an innocent person and unarmed in the vehicle.

[00:12:47] Speaker 04:
And again, if taken as a whole.

[00:12:51] Speaker 04:
And again, I'm not going to try and suggest that we have to look beyond, but we have to see this as two events.

[00:12:59] Speaker 04:
You have the one shot, the one shot was intended to kill.

[00:13:02] Speaker 04:
Two seconds later, the rest of them.

[00:13:05] Speaker 04:
respectfully, but had they not shot and they weren't supposed to shoot.

[00:13:09] Speaker 04:
And if you listen to Sergeant Clear, she starts screaming, stop, stop, stop.

[00:13:14] Speaker 04:
She also screams after all the shooting occurs.

[00:13:17] Speaker 04:
Someone asks her if everything's okay.

[00:13:20] Speaker 04:
And she said, we took a kill shot to the head.

[00:13:22] Speaker 04:
And I don't want to use the explicatives here, but she said, and then you guys just started shooting from behind.

[00:13:27] Speaker 03:
And what

[00:13:29] Speaker 04:
told the rest of the officers at that point that the first shot had killed Born I Mean here's where it becomes plainly incompetent as far as I'm concerned my client is that sergeant clear at the time should have notified the other

[00:13:48] Speaker 04:
16 officers that were surrounding this vehicle, that they were taking a kill shot.

[00:13:54] Speaker 03:
If you don't prevail now, you'll have an opportunity in state court?

[00:14:02] Speaker 04:
Yes, Your Honor.

[00:14:02] Speaker 04:
Right now, the judge severed the case, obviously, and severed the state law claims.

[00:14:09] Speaker 04:
We filed them in state law, under the state law claims, as we've outlined in our briefing, of course.

[00:14:14] Speaker 04:
And those claims are stayed pending the outcome of this appeal, of course.

[00:14:20] Speaker 04:
May I retain the one minute and fifteen seconds?

[00:14:23] Speaker 04:
We'll give you some additional time as well.

[00:14:25] Speaker 04:
Thank you very much, Your Honor.

[00:14:49] Speaker 02:
Thank you.

[00:14:49] Speaker 02:
May it please the court.

[00:14:50] Speaker 02:
Craig Anderson on behalf of the defendants and the defendants as well as this panel recognized the seriousness and the horrible nature of this case always have.

[00:15:00] Speaker 02:
And this appeal turns on the threshold Fourth Amendment legal question, however, not the facts.

[00:15:05] Speaker 02:
The issue is whether Joseph was seized by any point by the Henderson officers.

[00:15:09] Speaker 02:
Under the Supreme Court's and this court's cases, the answer is a clear no.

[00:15:13] Speaker 02:
The officers neither acquired control over Joseph by show of authority nor applied force to Joseph with the intent to restrain him.

[00:15:20] Speaker 02:
The encounter, the complaint describes as a hostage rescue effort.

[00:15:24] Speaker 02:
It was directed at neutralizing Bourne and freeing Joseph.

[00:15:29] Speaker 02:
Under these facts, there cannot be a seizure under the Fourth Amendment.

[00:15:33] Speaker 02:
Now I can go into each element as to whether there was a show or whether the force seized him, but you have any questions right now based upon your question a plaintiff.

[00:15:41] Speaker 00:
Maybe you could just start at talking about whether there was sufficient time for the officers to to.

[00:15:47] Speaker 00:
to contemplate anything after that first shot?

[00:15:51] Speaker 02:
Correct.

[00:15:52] Speaker 02:
And so what we know is that the gun was pointed towards Joseph's head, and the shot was taken by Pendleton.

[00:15:59] Speaker 02:
Now, you have to look at Pendleton's deposition.

[00:16:02] Speaker 02:
He did say that he thought the shot was incapacitating, but he did say that Bourne continued to move.

[00:16:09] Speaker 02:
And the officers behind who had seen a gun pointed at a child's head less than two seconds before also fire.

[00:16:15] Speaker 02:
And so the intent of their firing was reasonable under the Fourth Amendment to attempt to liberate Joseph before Borden pulled the trigger.

[00:16:22] Speaker 02:
And within two seconds, you know, the lag time, of course, that officers face and with what they saw within the vehicle, it would not be enough time to tell whether he was completely incapacitated.

[00:16:33] Speaker 02:
The case I would refer you to is Plumoff versus Ricard, which is a Supreme Court case that was a car chase that resulted in a shooting, where the court said you don't need to stop shooting until the individual is clearly incapacitated or has surrendered.

[00:16:47] Speaker 02:
And here, based on Pendleton's testimony, he was still moving.

[00:16:51] Speaker 02:
He's born.

[00:16:51] Speaker 02:
Born was still moving.

[00:16:53] Speaker 02:
Born had certainly not attempted to surrender.

[00:16:55] Speaker 02:
And so under Plumoff, the shooting would still be reasonable.

[00:16:58] Speaker 02:
This circuit's case, I would say, is Monzon versus City of Murrieta, which said that 4.5 seconds was not enough time for an officer to determine whether someone was still a threat or not.

[00:17:10] Speaker 02:
So I wouldn't.

[00:17:12] Speaker 01:
Oh, I'm sorry.

[00:17:12] Speaker 02:
No, no, I'm just going to keep talking.

[00:17:14] Speaker 01:
I was going to ask, is there anything in the record that would suggest that the other officers knew that Officer Pendleton was given the green light to try to take the kill shot and end the situation?

[00:17:26] Speaker 02:
There's nothing in the record as it stands that says that those officers were behind the vehicle who saw the gun pointed to Joe's head.

[00:17:33] Speaker 01:
So, for example, Sergeant Smith didn't communicate this over a radio that others could hear?

[00:17:38] Speaker 02:
I'm not sure if that's correct.

[00:17:39] Speaker 02:
Yes, there's nothing in the record that says that at this point for the state.

[00:17:42] Speaker 02:
But that would be a tactical error and the other officers would still be valid under the 4th Amendment attempting to use deadly force against a suspect attempting to kill a child.

[00:17:55] Speaker 02:
that's a good question.

[00:17:57] Speaker 02:
I think that's a good question.

[00:18:00] Speaker 02:
I think that's a good question.

[00:18:02] Speaker 02:
I think that's a good question.

[00:18:03] Speaker 02:
I think that's a good question.

[00:18:05] Speaker 02:
I think that's a good question.

[00:18:08] Speaker 02:
I think that's a good question.

[00:18:10] Speaker 02:
I think that's a good question.

[00:18:12] Speaker 02:
I think that's a good question.

[00:18:14] Speaker 01:
And I take it you agree with the other circuit authorities that say that if someone is a hostage, they cannot be a hostage and at the same time be seized by the government for amendment purposes?

[00:18:25] Speaker 02:
Correct.

[00:18:26] Speaker 02:
The issue there is who is exerting control over Joseph.

[00:18:29] Speaker 02:
And Joseph was in the vehicle not because of the police's actions.

[00:18:32] Speaker 02:
He was in there because of boards.

[00:18:34] Speaker 02:
And even when he put his hands up at the police's command, Bourne reestablished control over him when he pointed the gun at him and he did not leave the vehicle because the commands were put your hands up and exit the vehicle.

[00:18:45] Speaker 02:
Joseph did raise his hands, but he didn't exit the vehicle because Bourne reestablished control over him.

[00:18:50] Speaker 02:
And so the police were never the reason that Joseph remained in the vehicle.

[00:18:55] Speaker 02:
In fact, I think using the objective standards that we have to, an objectively reasonable person would be happy that police were there and happy to comply with their commands if they were indeed a hostage.

[00:19:05] Speaker 02:
And so there's no control.

[00:19:07] Speaker 01:
As I read the Supreme Court authorities, if there's no seizure, there's no Fourth Amendment claim, but that still could give rise to a Fourteenth Amendment, you know, deliberate indifference claim.

[00:19:19] Speaker 01:
And I know you dispute that that claim is established either, but do you agree with sort of that premise that if the Fourth Amendment isn't available, there might be recovery under the Fourteenth Amendment, even in a hostage situation?

[00:19:35] Speaker 02:
I would agree in principle with that statement because the 14th Amendment is looking at not whether someone was seized but whether the officer's action shocks the conscience.

[00:19:45] Speaker 02:
So then moving to the facts of this case, this is clearly a purpose to harm case.

[00:19:50] Speaker 02:
It's not a deliberate indifference case in looking at the 14th Amendment because Bourne was obviously or was admittedly in the complaint pointing the gun at the child's head indiscriminately, making threats to kill him, telling him to open his mouth,

[00:20:02] Speaker 02:
threatening to do things to him that each second in this case was important, that it was changing and the officers were making decisions based upon those actions.

[00:20:10] Speaker 02:
And so for the purpose to harm standard to apply, there must be allegations in the complaint that the officers shot at Bourne, because there's no allegations they ever shot at Chosin, that they shot at Bourne for a reason unrelated to a legitimate law enforcement objective.

[00:20:24] Speaker 03:
is clearly a legitimate law enforcement objective to attempt to to release a hostage from his cap door and so again irrespective of whether the tactics were flawed and irrespective of whether If the officers owed a duty of due care to Joseph And didn't have some sort of state court immunity that they could be liable under a theory of negligent or perhaps even grossly negligent conduct

[00:20:54] Speaker 02:
Correct.

[00:20:55] Speaker 02:
There are state law claims that are still valid and pending.

[00:20:58] Speaker 02:
We talked on Monday about the negligence claims here in Nevada, and I think this is a much better case to flesh those out, and they would be fleshed out in the state court.

[00:21:06] Speaker 02:
But I would point out on that that what the plaintiffs are advocating is that the officer should have stood down, retreated, and waited for SWAT to come.

[00:21:15] Speaker 02:
The analogy that comes to my mind is what the plaintiffs are requesting is this is a Uvalde situation where officers go into a school where a hostage is or a hostage taker is contained in a room but with children.

[00:21:28] Speaker 02:
And they chose to stand down and wait for other resources.

[00:21:31] Speaker 02:
And that's the principle they're advocating, is that officers stand down and allow Joseph to remain in the car unprotected while SWAT arrives.

[00:21:39] Speaker 02:
So they would be requesting that the court follow the Uvalde officers rather than officers that take action, even though the decisions are incredibly difficult.

[00:21:47] Speaker 02:
The consequences can be horrific, but that officers take action and do their best to release the hostage from his camp.

[00:21:54] Speaker 03:
And although the officers

[00:21:56] Speaker 03:
that they were in danger as well.

[00:21:57] Speaker 03:
But the primary job, which I think they probably recognized was vis-a-vis Joseph.

[00:22:02] Speaker 03:
They were in danger as well.

[00:22:04] Speaker 02:
Yeah.

[00:22:05] Speaker 02:
And, you know, the plaintiff's state or Mr. Critell stated in his argument, Mr. Bourne never pointed a gun at the officers or threatened them.

[00:22:12] Speaker 02:
That's absolutely true.

[00:22:13] Speaker 02:
I don't think the officers ever they obviously they felt in danger that someone had a firearm and they were in the

[00:22:25] Speaker 02:
liberating Joseph, which is important, because when we deal with a lot of these cases, it's the officer that's saying he felt in danger subjectively.

[00:22:31] Speaker 02:
And that's what you're looking at.

[00:22:32] Speaker 02:
When officers are attempting to protect a person, a citizen, the analysis is slightly different in favor of the officer, because they're trying to protect someone else, not themselves.

[00:22:42] Speaker 02:
And their subjective intent is never irrelevant, but becomes less relevant.

[00:22:48] Speaker 02:
But I think the one thing that's also very clear in your questioning, Mr. Croteau, is there is no clearly established law that would have put these officers on notice on either the 4th or the 14th Amendment claim that attempting to free a hostage could somehow subject them to a constitutional violation.

[00:23:04] Speaker 02:
The cases, in fact, are the opposite and completely support the officer's actions in this case.

[00:23:11] Speaker 02:
Any other questions from your honors?

[00:23:14] Speaker 03:
Thank you.

[00:23:15] Speaker 03:
Thank you very much.

[00:23:16] Speaker 03:
Council will give you three minutes for a rebuttal.

[00:23:31] Speaker 04:
Interesting comments from my colleague.

[00:23:36] Speaker 04:
The difficulty with this is this.

[00:23:38] Speaker 04:
This is different than a standard hostage case.

[00:23:42] Speaker 04:
You know, generally speaking, the hostage case, you've got the perpetrator, you've got the hostage.

[00:23:49] Speaker 04:
Someone tries to shoot the perpetrator and kills the hostage.

[00:23:54] Speaker 04:
That's predominantly these cases.

[00:23:56] Speaker 04:
This changes.

[00:23:57] Speaker 04:
This is different, all right, in this particular case.

[00:24:00] Speaker 04:
And forget all the barricade policies that they didn't adhere to and so forth.

[00:24:04] Speaker 04:
That's part of their training that they didn't get and part of the Manel claims that we had.

[00:24:09] Speaker 04:
But the point here is that there was no thought process, no communication, no anything.

[00:24:17] Speaker 04:
There was simply a shot fired, didn't know the origin, didn't know the destination, didn't know where it went, didn't see it, heard a shot.

[00:24:28] Speaker 04:
and they lit the car up with 27 rounds.

[00:24:31] Speaker 04:
That's the problem.

[00:24:33] Speaker 04:
And it's in those rounds that this child died.

[00:24:39] Speaker 04:
And in those rounds, they shouldn't have been fired.

[00:24:43] Speaker 04:
That's the point.

[00:24:44] Speaker 04:
And we start talking about deliberate indifference.

[00:24:46] Speaker 04:
That is the standard that we're talking about here.

[00:24:51] Speaker 04:
It's difficult to get the seizure, and I'm going to candidly admit that it's difficult to get the seizure, you know, based upon the case law.

[00:24:58] Speaker 04:
There is no case law in this kind of thing.

[00:25:01] Speaker 04:
There's seizure language that if I am chasing someone and they're driving 100 miles an hour, I can shoot and kill.

[00:25:08] Speaker 04:
If they're driving at 10 miles an hour, probably can't, or maybe five.

[00:25:11] Speaker 04:
You know, and that's the nature of these cases.

[00:25:14] Speaker 04:
You know, it's whether or not the officers thought the general public was going to get hurt or they were going to get hurt.

[00:25:20] Speaker 04:
In this particular case, there was no brandishment whatsoever.

[00:25:24] Speaker 04:
We have 16 officers around this escalator, all with guns drawn, every single one of them.

[00:25:32] Speaker 04:
And you've got Bourne in the front seat with the child in the passenger seat.

[00:25:36] Speaker 04:
He didn't threaten any of them with any gunfire.

[00:25:38] Speaker 04:
He didn't point the gun at them.

[00:25:41] Speaker 01:
Mr. Couture, can I ask what makes you think that this two-second interval is enough to have deliberate, the ability to deliberate?

[00:25:49] Speaker 01:
Absolutely.

[00:25:50] Speaker 01:
And what do you think is your best case to support that proposition?

[00:25:53] Speaker 04:
Well, here's the deliberate.

[00:25:54] Speaker 04:
Well, first off, we have testimony in the record, right?

[00:25:57] Speaker 04:
That is evidence, whether counsel discounts it or not.

[00:26:01] Speaker 04:
But Ray Wilkins was HPD's use of force officer, critical investigation team.

[00:26:09] Speaker 04:
He did the investigation in this case and came to those determinations.

[00:26:13] Speaker 04:
And he testifies to that under oath.

[00:26:15] Speaker 04:
And it's not an expert I hired.

[00:26:17] Speaker 04:
He is the one who did the report for HPD that says there was more than adequate time for deliberation.

[00:26:24] Speaker 04:
It already started.

[00:26:25] Speaker 04:
The problem in this case is it ended with the shootings in the apartment as a segment of this.

[00:26:35] Speaker 04:
An entirely different segment is he's trying to escape.

[00:26:38] Speaker 04:
And he takes a child.

[00:26:39] Speaker 04:
He doesn't harm that child.

[00:26:41] Speaker 04:
He takes him and puts him in the seat.

[00:26:43] Speaker 04:
He calls 911, starts having a conversation with them.

[00:26:45] Speaker 04:
I want a helicopter.

[00:26:46] Speaker 04:
I want to get out of here.

[00:26:47] Speaker 04:
I need to leave.

[00:26:49] Speaker 04:
He's exhibiting some mental issues.

[00:26:52] Speaker 01:
And I get that there's quite a bit of time that happens during the course of this just awful 911.

[00:26:58] Speaker 01:
But what I'm speaking to is more the, what sort of deliberation could there be from Pendleton to with officer's firings?

[00:27:11] Speaker 04:
Again, you don't have the benefit of some of the things in this case, obviously, on the briefing, because this is a 12b6 motion.

[00:27:16] Speaker 04:
But what ends up happening is he's sitting in that parking lot.

[00:27:22] Speaker 04:
And these are the revelations that should, you would think, be an epiphany to who's on scene.

[00:27:28] Speaker 04:
But he'd been sitting there since the incident occurred.

[00:27:31] Speaker 04:
Didn't go anywhere.

[00:27:32] Speaker 04:
He didn't flee.

[00:27:33] Speaker 04:
He didn't go anywhere.

[00:27:35] Speaker 04:
He sat in the vehicle with it running.

[00:27:37] Speaker 04:
He had plenty of time before they even arrived to get in that vehicle and drive away.

[00:27:42] Speaker 04:
Didn't do it.

[00:27:43] Speaker 04:
Hadn't killed the child.

[00:27:45] Speaker 04:
He killed everybody in the apartment in minutes.

[00:27:48] Speaker 03:
Why don't you conclude?

[00:27:50] Speaker 04:
I'm sorry.

[00:27:51] Speaker 03:
That's all right.

[00:27:52] Speaker 04:
But the indifference portion and the timing, they knew they had SWAT on the way.

[00:27:58] Speaker 04:
They knew they had a negotiator on the way.

[00:28:00] Speaker 04:
They forced this issue because they were coming up on him all with firearms pointed at him to the front windshield Had they backed up give a pensive moment Take the stress off the situation Barricade the vehicle prevented from leaving and let Swatt and the negotiators go to work in Consistency with the barricade policy of HPD that they did not do Thank you.

[00:28:23] Speaker 04:
Thank you.

[00:28:24] Speaker 03:
We thank counsel for their arguments and the case just argued is submitted.

[00:28:28] Speaker 03:
Thank you