[00:00:01] Speaker 01:
Thank you, good morning to all of you.

[00:00:03] Speaker 01:
Are you able to hear me?

[00:00:05] Speaker 03:
Yes, can you hear us?

[00:00:07] Speaker 03:
Is it Mr. Gallipo?

[00:00:10] Speaker 01:
Yes, it is, and I can hear you all very well.

[00:00:14] Speaker 03:
Great.

[00:00:18] Speaker 01:
So I am appearing on behalf of the appellants and the plaintiffs in the underlying case.

[00:00:26] Speaker 03:
The short version of our argument is that the court counsel, if you, if you have any way to turn up your volume a little bit, if not, we can, we can handle it.

[00:00:39] Speaker 01:
I can try to get someone to help me, but I'll pull it closer and speak louder.

[00:00:43] Speaker 01:
Is that any better?

[00:00:44] Speaker 03:
Yes.

[00:00:45] Speaker 03:
Thank you, counsel.

[00:00:47] Speaker 01:
You're very welcome.

[00:00:47] Speaker 01:
Your honor.

[00:00:51] Speaker 01:
In short,

[00:00:53] Speaker 01:
The appellants believe that the court erred in granting summary judgment on the first volley of shots for two reasons, and that affected the trial in terms of the second volley of shots and also in terms of the negligence claim.

[00:01:15] Speaker 01:
The reasons we believe the court erred in the first volley is we believe whether

[00:01:21] Speaker 01:
The mistake that Mr. Childress was armed was reasonable or not was a question of fact for the jury.

[00:01:29] Speaker 01:
And also, whether he posed an immediate threat of death or serious bodily injury at the time of the first volley was also a fact for the jury to decide.

[00:01:46] Speaker 01:
The effect of that on the trial was that the jury implicitly was led to believe that the first volley was appropriate because we couldn't argue it.

[00:01:58] Speaker 01:
We couldn't put expert evidence on regarding it.

[00:02:02] Speaker 01:
And they were only asked to opine on the second volley.

[00:02:06] Speaker 01:
And in both the first volley and the second volley, the officers didn't specifically see a gun.

[00:02:14] Speaker 01:
And so there was only two seconds between the two volleys.

[00:02:19] Speaker 01:
And the reason we think the court erred is because as your honors are aware from reviewing the record in this case, the two shooting officers never specifically identified a gun.

[00:02:35] Speaker 01:
Sergeant Bohannon thought it was possibly a cell phone based on its size, shape and color.

[00:02:43] Speaker 01:
and never saw any of the identifying features of a gun when he saw the object in the hand as Mr. Childress crossed the street.

[00:02:54] Speaker 01:
Nonetheless, he announced to Officer Wolford, who had only been on patrol for a few months, that he has a 413, which is their code for a gun.

[00:03:07] Speaker 02:
And Officer Wolford- Do you mind if I-

[00:03:10] Speaker 02:
ask you this question to set the stage.

[00:03:13] Speaker 02:
As I understand it, the deputies are told that he may be wanted for an attempted homicide.

[00:03:19] Speaker 02:
They are given information that he may have been in possession of a gun or may have had access to a gun.

[00:03:27] Speaker 02:
They arrive, they see this black object in his right hand.

[00:03:34] Speaker 02:
They warn him over 20 times to drop your weapon, show your hands.

[00:03:39] Speaker 02:
He's ignoring those commands.

[00:03:41] Speaker 02:
He approaches them.

[00:03:43] Speaker 02:
at a pretty rapid pace and and then they shoot and the district court found that that was reasonable as a matter of law and i'm struggling to see what is the tribal issue in in a mistake that that might have been a gun in his possession yes your honor if i may respond to that

[00:04:04] Speaker 01:
So your recitation of the facts is accurate with a few qualifications.

[00:04:11] Speaker 01:
They had no specific information.

[00:04:13] Speaker 03:
He had a gun, but they were, they had, they were told as my colleague said that he was wanted.

[00:04:21] Speaker 03:
What was it?

[00:04:22] Speaker 03:
Attempted murder, attempted homicide.

[00:04:25] Speaker 01:
That is true.

[00:04:26] Speaker 01:
That is true.

[00:04:27] Speaker 01:
Judge Bennett, but they didn't know what the facts of the case were, what weapons, if any, were involved in the case.

[00:04:34] Speaker 01:
and they admitted they had no specific information.

[00:04:38] Speaker 01:
He had a firearm.

[00:04:40] Speaker 01:
There was, as you may recall, a firearm found in a vehicle associated with him that was registered to his uncle.

[00:04:48] Speaker 01:
So what I think is important, Judge Sanchez, is when they first saw him crossing the street, the object they saw in his hand, and this was just the sergeant,

[00:05:01] Speaker 01:
In the sergeant's mind was consistent with a cell phone and he could not identify it as a gun.

[00:05:07] Speaker 00:
That was the gun was a gun was found as you just as you just stated in his uncle's car.

[00:05:13] Speaker 00:
And when he exited his house, if I'm recalling the facts, right, he started to approach the car.

[00:05:19] Speaker 00:
So there's some connection there, isn't there?

[00:05:22] Speaker 01:
Well, yes, there is in that way, Judge Thomas, but I think that

[00:05:28] Speaker 01:
in some ways, arguably taking all the facts in the appellant's favor for the MSJ analysis, that might cut against him having a gun if a gun was found in his car and he separated himself from the car.

[00:05:44] Speaker 01:
But what I was trying to focus on is when they actually saw him, they never ID'd the item as a gun and they thought it was possibly a cell phone, which of course it was.

[00:05:57] Speaker 03:
So counsel, my understanding is at the time, according to the district court, at the time of the shooting, he was about 45 feet away.

[00:06:08] Speaker 03:
He had ignored what the district court described as 25 verbal commands.

[00:06:18] Speaker 03:
If we were hypothetically to accept your view that there was a triable issue of fact at 45 feet, is there a distance where there wouldn't be a triable issue of fact?

[00:06:33] Speaker 01:
No, I don't think so, Judge Bennett, for two reasons.

[00:06:36] Speaker 03:
So 25 commands to stop.

[00:06:39] Speaker 03:
He'd been told he was wanted for attempted homicide, that even if he got to 10 feet, that they still wouldn't be allowed to shoot.

[00:06:50] Speaker 01:
Correct.

[00:06:50] Speaker 01:
Well, it depends on the fact finders interpretation of the facts.

[00:06:55] Speaker 01:
So there'd have to be two prongs.

[00:06:57] Speaker 01:
One, the belief that he had a gun would have to be reasonable.

[00:07:02] Speaker 01:
That would be the first prong, but that would not be enough because obviously there's a lot of ninth circuit precedent that says a gun in someone's possession, even in their hand, is not enough to shoot them.

[00:07:16] Speaker 01:
We have George V. Morris and many other cases that say that.

[00:07:20] Speaker 01:
So first they'd have to have a reasonable belief he had a gun.

[00:07:24] Speaker 01:
And then secondly, it'd have to be an immediate threat of death or serious bodily injury.

[00:07:31] Speaker 01:
And that we believe is also a triable issue of fact in the case.

[00:07:38] Speaker 01:
So at least from the pellet's perspective under the facts of the case, and there was no verbal threat, obviously,

[00:07:46] Speaker 01:
He was approaching them.

[00:07:47] Speaker 01:
You can see that in the video.

[00:07:49] Speaker 01:
One of the officers in response to your question, Judge Bennett, basically said, I thought in my mind, if he gets to the middle of the driveway, I'm going to shoot him.

[00:08:01] Speaker 01:
He never saw the object.

[00:08:02] Speaker 01:
That was Officer Wolfer.

[00:08:04] Speaker 01:
And he got to the middle of the driveway and started shooting him.

[00:08:08] Speaker 01:
And so at least from the appellant's perspective, we realize

[00:08:16] Speaker 01:
There is evidence in the case to support different theories, but we did not think it was appropriate as a matter of law to say the shooting was reasonable in the first volley when the officers never saw a gun and his hand, according to the officers, never came out with an object or up and towards them and he had never really threatened them and they had cover behind the car

[00:08:43] Speaker 01:
and less lethal options available of a taser.

[00:08:47] Speaker 01:
But the other problem that we encountered.

[00:08:50] Speaker 02:
Can I ask you, suppose Mr. Childs did have a gun, is it your view that it would still be a tribal dispute if he did not raise the gun toward the officers and he was shot?

[00:09:02] Speaker 02:
Or would that change the circumstances?

[00:09:08] Speaker 01:
I don't think it would change necessarily.

[00:09:10] Speaker 01:
It's certainly better for the appellants that he didn't have a gun and it was a phone.

[00:09:16] Speaker 01:
And I think in part, Judge Sanchez, the fact that the one officer thought that it might be a phone, we felt was very important in this case because of the shape, size and color of what he saw.

[00:09:28] Speaker 01:
But given that there was no further movement with the object coming out, the hand raising,

[00:09:38] Speaker 01:
and no verbal threat, I still think it's a tribal issue of fact as to whether shooting him at that point was excessive or not under the Fourth Amendment.

[00:09:50] Speaker 01:
And that- Maybe you might want to turn to your second issue.

[00:09:53] Speaker 01:
Yeah.

[00:09:53] Speaker 01:
Thank you, Judge Bennett.

[00:09:56] Speaker 01:
So this really affected the negligence issue because based on the court's ruling,

[00:10:04] Speaker 01:
he would not allow any argument or evidence that there was any negligent conduct before the first volley of shots, because he had found the judge that everything was reasonable up until the first volley.

[00:10:20] Speaker 01:
So the only negligence that we could argue, which we thought was inappropriate, was in between the first volley of shots and the deployment of the canine.

[00:10:31] Speaker 01:
So the fact that the one officer

[00:10:34] Speaker 01:
said that he'd gone and he never saw one, the fact that they didn't designate someone less lethal, none of that we could argue.

[00:10:43] Speaker 01:
And the judge also held that you can have a negligent shooting, which we think is inappropriate and contrary to Nevada law.

[00:10:52] Speaker 01:
We cited the Supreme Court case of the estate of Brennis saying that you can have a negligent shooting for an intentional act of using deadly force.

[00:11:04] Speaker 01:
but it really hurt us when we got to the apportionment because under Nevada law.

[00:11:11] Speaker 03:
Let, why don't you assume hypothetically that I might agree with you as to the second volley.

[00:11:21] Speaker 03:
So on the negligence claim.

[00:11:24] Speaker 03:
So if I were to hypothetically agree with you that there's more there on the negligence claim for the second volley,

[00:11:35] Speaker 03:
Would there be any reason why we shouldn't certify to the Nevada Supreme Court this issue, which seems to have divided judges on the district court, as to whether an intentional act of shooting can be factored in by the trier of fact in determining a negligence claim that arises from a shooting?

[00:12:00] Speaker 01:
Judge Bennett, I don't think there's any reason not to.

[00:12:04] Speaker 01:
However, I would indicate, as I previously stated, on another case I was involved in, the Nevada Supreme Court did take up the issue in the Brennis case and specifically held that you can have a negligent shooting even with the intentional use of deadly force, but perhaps

[00:12:27] Speaker 01:
To the extent it's unclear, I have no opposition if your honors thought that would be appropriate.

[00:12:36] Speaker 01:
But the point that I was trying to make, if I could, because I know I'm running out of time, I'm sure, under Nevada law, if there is 50% or more contributory or comparative negligence on the decedent, you cannot recover.

[00:12:55] Speaker 01:
And that's what happened in this case on the negligence claim.

[00:12:58] Speaker 01:
They found the two officers collectively, I believe, 25% negligent and the decedent 75%.

[00:13:07] Speaker 01:
And therefore, we could not recover any monetary recovery.

[00:13:13] Speaker 01:
Under the decedent's negligence, the jury was allowed to consider all his negligence at all times.

[00:13:20] Speaker 01:
you know, prior to the first volley, during, after, et cetera.

[00:13:25] Speaker 01:
But we were limited to only considering the negligence of the officers between the first volley and the deployment of the canine just a few seconds.

[00:13:36] Speaker 01:
So we believe that also prejudiced us in getting such a high percentage on the decedent considering all his negligence and a very limited percentage on the officers and therefore

[00:13:50] Speaker 01:
We weren't able to recover anything because of the Nevada law on contributory negligence.

[00:13:56] Speaker 01:
So we believe not being able to argue the negligent tactics and argument and negligent tactics before the first volley of shots as it related to the second volley.

[00:14:10] Speaker 01:
was also prejudicial and unfair to the plaintiffs.

[00:14:14] Speaker 03:
Council, I should know the answer to the question I'm about to ask, and I apologize that I don't remember.

[00:14:20] Speaker 03:
But was there any evidence offered at trial as to whether the first volley of shots was fatal alone without regard to the second volley?

[00:14:33] Speaker 01:
That's a great question, Judge Bennett.

[00:14:35] Speaker 01:
In fact, I was thinking about that as I was preparing for the argument today.

[00:14:41] Speaker 01:
There was no specific evidence on that that I can recall, which was also problematic, we believe, in presenting the case, because I couldn't talk about the first volley being excessive.

[00:14:53] Speaker 01:
And then the jury may have been unable to decide which volley were the fatal shots.

[00:15:01] Speaker 01:
And we believe that further prejudiced our presentation of the case at trial.

[00:15:07] Speaker 01:
We simply believe and we are aware there's negative evidence in this case.

[00:15:14] Speaker 01:
As you all are aware, many of these cases have a lot of negative facts and they're very challenging for the plaintiffs.

[00:15:21] Speaker 01:
but we just simply feel the jury should have been able to decide both volleys of shots and taking the one volley away from us affected, we believe, the finding on the second volley and further affected how the negligence claim was handled.

[00:15:39] Speaker 02:
In fact, I believe... Sure.

[00:15:42] Speaker 02:
I know that

[00:15:42] Speaker 02:
There seems to be an open question in Nevada about whether an intentional act can be negligent.

[00:15:49] Speaker 02:
In the Asada Brenna case, which I read is an unpublished decision.

[00:15:54] Speaker 02:
Let me ask you this.

[00:15:55] Speaker 02:
Does Nevada law opine on whether a negligence claim is coextensive with a Fourth Amendment claim or whether negligence can provide for a broader scope of liability than Fourth Amendment reasonableness?

[00:16:10] Speaker 01:
Judge Sanchez, I don't believe, at least from the California Supreme Court, I know my colleague Mr. Anderson is familiar with Nevada cases, but I don't believe they specifically address the issue.

[00:16:25] Speaker 01:
As you know, in California, we have the negligent use of deadly force.

[00:16:32] Speaker 01:
Some courts have, I think mistakenly in Nevada, felt that you can't have a negligent shooting.

[00:16:38] Speaker 01:
And there's even arguments of whether discretionary immunity would apply, which I think Brenna said would not.

[00:16:44] Speaker 01:
So I do agree that this case is right for consideration.

[00:16:50] Speaker 01:
And maybe we can get a published opinion going forward to clear up some of these issues for future cases where negligence is claimed.

[00:16:59] Speaker 01:
Now, unfortunately, as you probably also know, under Nevada law, there's a cap on what you can get.

[00:17:06] Speaker 01:
under state claims like for negligence, and I can't remember exactly, but it might be something like $150,000 even in a wrongful death case.

[00:17:16] Speaker 01:
So although it's still limiting, it at least gives people a chance to present that theory of the case if the facts and law support it.

[00:17:26] Speaker 03:
All right, thank you, counsel.

[00:17:27] Speaker 03:
We've taken up a lot of your time with questions and we'll give you a few minutes for rebuttal.

[00:17:33] Speaker 03:
Thank you, Judge Bennett.

[00:17:51] Speaker 04:
Good morning, Your Honors.

[00:17:51] Speaker 04:
Craig Anderson on behalf of officers Bohannon and Walford.

[00:17:57] Speaker 04:
A lot was talked about right there.

[00:17:59] Speaker 04:
I'll start with the first volume of shots.

[00:18:02] Speaker 04:
The judge got it right on the summary judgment order.

[00:18:04] Speaker 04:
When we look at these cases, as you're all very well aware.

[00:18:06] Speaker 04:
Council, could you move the mic a little closer, please?

[00:18:08] Speaker 04:
Sorry, I always stand further back, so I'm usually too loud.

[00:18:10] Speaker 04:
So I'll speak louder, too.

[00:18:13] Speaker 04:
This case is a rather easy one on the first folly of shots because the facts are unique in that you actually have a fleeing felon who is suspected of a violent crime who is actively attempting to evade arrest.

[00:18:24] Speaker 04:
So the first two gram factors easily weigh in favor of the officers, even plaintiffs experts agreed with that.

[00:18:30] Speaker 04:
So we come to the second prong, which is always the important one, which is whether he presented an immediate threat.

[00:18:35] Speaker 04:
The plaintiff's argument has always been that they had to identify a gun before they could have perceived an immediate threat.

[00:18:41] Speaker 04:
But the actual identification of a gun is not necessary.

[00:18:44] Speaker 04:
And plaintiff's favored case in this matter is the George case, which says that.

[00:18:50] Speaker 04:
It says that what you're looking for is whether there's a threatening gesture or a harrowing act, and you do not have to see the gun before you shoot.

[00:18:57] Speaker 04:
Here, what's very interesting is that the officers

[00:19:01] Speaker 04:
gave him 25 commands as you said over two and a half minutes and When you're dealing with an officer involved shooting incident two and a half minutes is a very long time Most of the cases that the plaintiff relies upon SRV had George Cologne Involved very quick decisions less than five seconds from the time the officer confronts the suspect here the officers did exactly what this circuit has instructed them to do and

[00:19:23] Speaker 04:
They attempted to quarantine the plaintiff.

[00:19:25] Speaker 04:
They were just attempting to arrest him.

[00:19:27] Speaker 04:
He was a known fleeing felon out of Arizona for a violent crime.

[00:19:30] Speaker 04:
They requested low lethal shotguns.

[00:19:32] Speaker 04:
They requested canines.

[00:19:33] Speaker 04:
They had a helicopter.

[00:19:35] Speaker 04:
And then most important is they were giving warnings.

[00:19:40] Speaker 04:
that the officers identified this black object as a gun was based upon the plaintiff's treatment of the object.

[00:19:47] Speaker 04:
Both officers testified that he was keeping his hand close, that Childress was keeping his hand closely guarded to the right side of his body, presented away from the officers, indexing the cell phone as if it was a gun.

[00:19:57] Speaker 04:
And then when Officer Bohannon on multiple times says, drop the gun,

[00:20:03] Speaker 04:
He never tells them it's not a gun.

[00:20:05] Speaker 04:
He makes no effort to instruct them that, hey, you've got this wrong.

[00:20:07] Speaker 04:
This is a cell phone.

[00:20:09] Speaker 04:
So it was his intention to lead the officers to believe, or a reasonable officer would believe, that he wanted them to think this was a gun.

[00:20:17] Speaker 04:
And then most important is when Officer Bohannon complied with this circuit's law and gave a warning and said, if you advance on us, we're going to shoot you, he advanced.

[00:20:28] Speaker 04:
So the suspect in this case, Mr. Childress, was the person provoking the officer's actions.

[00:20:35] Speaker 02:
In the cases of- Can I ask Mr. Anderson, if he's 45 feet away, can the other less lethal alternatives even be deployed?

[00:20:45] Speaker 02:
As I understand it, I think a stun gun won't reach that far or maybe a shotgun, a bean bag shotgun won't either.

[00:20:52] Speaker 02:
Are those viable options?

[00:20:55] Speaker 02:
at a distance of 45 feet relative to someone raising a gun and trying to shoot at the officers?

[00:21:01] Speaker 04:
So if available, a taser at this point in time, 2015, was 15 to 20 feet.

[00:21:05] Speaker 04:
That was the range that they would be valid at.

[00:21:07] Speaker 04:
Low lethal shotgun could have been, but they didn't have one, though it had been requested and they were waiting for it.

[00:21:13] Speaker 04:
If you wanted to use low lethal in this situation, the only, I think, viable option would have been a canine, which was also en route and not present at the time that he advanced.

[00:21:22] Speaker 04:
So they were attempting to get these low-lethals there, or these less-than-lethal options available to contain him.

[00:21:30] Speaker 04:
But only, I think, the canine and potentially a low-lethal bean bag would have been viable in this case.

[00:21:37] Speaker 02:
Was there an opportunity?

[00:21:39] Speaker 02:
Is there evidence that there might have been an opportunity to retreat and reestablish a perimeter or do something else to allow those alternatives to come to the scene?

[00:21:48] Speaker 04:
There's always that option.

[00:21:50] Speaker 04:
Now, there is no duty to retreat.

[00:21:51] Speaker 04:
That's very well established in 9th Circuit law.

[00:21:54] Speaker 04:
Now, the problem you have in this case is that he's in a residential area.

[00:21:58] Speaker 04:
So he has access to these homes.

[00:21:59] Speaker 04:
He has access and they don't know whose home.

[00:22:01] Speaker 04:
They don't know if citizens are present.

[00:22:03] Speaker 04:
So to retreat and allow him to do what he wants to do would probably not be the best decision in this case.

[00:22:08] Speaker 04:
He's not in an open field.

[00:22:10] Speaker 04:
He's not in a parking lot.

[00:22:11] Speaker 04:
He is actually standing in the driveways and the porches of residential homes.

[00:22:16] Speaker 04:
So I think it would have been negligent of the officers to have protected their own safety by leaving and leaving those citizens unprotected.

[00:22:24] Speaker 04:
But there would have been no duty to do so either under this circuit's law.

[00:22:29] Speaker 04:
So I think that what's most important here is that he ignored the warnings and that he provoked them.

[00:22:34] Speaker 04:
Clearly, he knew they thought he had a gun.

[00:22:36] Speaker 04:
He wanted them to think that, and he advanced on them when they specifically instructed him not to.

[00:22:41] Speaker 00:
Well, whether he wanted them to think it or not, he did nothing to disabuse them.

[00:22:45] Speaker 04:
Did nothing to disabuse them.

[00:22:46] Speaker 04:
So what would a reasonable officer think?

[00:22:48] Speaker 04:
And so once you're telling someone, hey, we think you have a gun, and we're pointing guns at you, a reasonable officer, an objectively reasonable officer, would assume that person would either comply or take some steps to protect himself, not by walking out.

[00:23:02] Speaker 04:
And he kept his hand at his right side in the pocket when he was walking at them.

[00:23:06] Speaker 02:
Can we turn to the negligence claim because the court's decision to exclude intentional acts from a possible negligence theory seems to me to

[00:23:18] Speaker 02:
might have affected how evidence was presented at trial, and certainly how the jury was allowed to consider certain things.

[00:23:26] Speaker 02:
To Judge Bennett's question to opposing counsel, why shouldn't we certify that question to the Nevada Supreme Court?

[00:23:34] Speaker 04:
Great question, and this is not the case to certify, and I'll explain why.

[00:23:37] Speaker 04:
We use the word negligence.

[00:23:39] Speaker 04:
It's a broad term.

[00:23:40] Speaker 04:
So the question that I would ask, rhetorically back to you, is what was the negligence?

[00:23:44] Speaker 04:
We went through that with their expert witnesses.

[00:23:46] Speaker 04:
What their experts came up with is these officers, their words, did a very good job up until the time they fired the first round.

[00:23:53] Speaker 04:
Expert Roger Clark was the only criticism in the negligence field was that they identified the object of the gun as a gun, which the district court found to be a reasonable

[00:24:04] Speaker 04:
decision by the officers.

[00:24:06] Speaker 04:
So there is no evidence of negligence prior to the first shooting.

[00:24:11] Speaker 04:
The officers had every lawful right to be on that property.

[00:24:13] Speaker 04:
They had every lawful right to be attempting to take him into custody.

[00:24:16] Speaker 04:
They had every lawful right to be on the gun.

[00:24:19] Speaker 04:
what about the decision to shoot the second time okay so that would be a battery because it's an intentional act where they're shooting where their testimony at the trial was we still perceived him to be an immediate threat he went to the ground they perceived him to still be attempting to get up his hands were still not visible

[00:24:36] Speaker 04:
So the negligence would be, which they argued at the trial, the negligence was during the second vial, second volley, they still failed to identify the dark object as a gun.

[00:24:47] Speaker 04:
They had still not identified it as a gun.

[00:24:49] Speaker 03:
But he's lying on the ground.

[00:24:50] Speaker 03:
Correct.

[00:24:50] Speaker 03:
After it had been shot a number of times.

[00:24:54] Speaker 03:
Correct.

[00:24:54] Speaker 03:
And the jury was not allowed to consider whether the second volley was negligent, right?

[00:25:00] Speaker 04:
They were allowed to consider whether the officer's tactics after the first volley until the canine was taken off of Mr. Childress, if there was any negligence.

[00:25:10] Speaker 03:
But as I understand it from looking at the jury instruction, which is not the clearest instruction in the world, at ER 4,

[00:25:20] Speaker 03:
but the court's ruling, which was fairly clear, was they couldn't argue that firing the gun in the second volley was the negligent act, right?

[00:25:32] Speaker 03:
Correct.

[00:25:33] Speaker 03:
Okay, so why wasn't, if intentional acts under Nevada law could be part of a negligence claim,

[00:25:46] Speaker 03:
why didn't the trial court err in preventing the plaintiffs plaintiff from arguing that firing the second volley at a man who's just been shot and is lying on the ground is negligent the shooting itself okay because under nevada law and i refer you to the rocky mountain produce case a negligent

[00:26:08] Speaker 04:
act require, it cannot be an intentional act.

[00:26:10] Speaker 04:
An intentional act cannot lead to negligence.

[00:26:13] Speaker 04:
Negligence is an unintentional act.

[00:26:15] Speaker 03:
But I don't see the Nevada, I mean you can certainly push back on this, but I don't see Nevada law in a published opinion of an appellate court

[00:26:29] Speaker 03:
absolutely establishing that in, for example, a shooting case, firing an intentional shot at someone can't be also a negligent act.

[00:26:41] Speaker 04:
And you would be correct in that because we do not have a published Nevada Supreme Court case on an officer.

[00:26:47] Speaker 03:
So then why isn't that relevant that if the jury could have here considered whether shooting him the second time was negligent,

[00:26:54] Speaker 03:
if that evidence could have been considered by the jury in deciding whether there's a failure of due care in shooting the second time, why shouldn't we certify the question?

[00:27:05] Speaker 04:
Well, now if I'm, now I don't have the jury instruction in front of me, but if I recall correctly, what they were instructed was they were allowed to consider the officer's actions after they cease firing the first volley and until Childress was taken off.

[00:27:19] Speaker 04:
I don't believe it ever said you cannot consider the firing

[00:27:23] Speaker 03:
intentional well I'm looking for example at ER 430 where the the court is describing this describing her ruling right describing what the judge was a woman right no this was judge

[00:27:41] Speaker 03:
the time that the police canine officer was taken off Mister Childress so that will be the period of time that the negligence can arrest can address and wasn't he shot the second time

[00:28:11] Speaker 04:
No, he was.

[00:28:12] Speaker 03:
The dog was still on when he was shot the second time?

[00:28:15] Speaker 04:
No.

[00:28:15] Speaker 04:
So the volley of shots is all within 8 seconds.

[00:28:18] Speaker 04:
It's boom, boom, boom, boom, boom.

[00:28:20] Speaker 04:
He then is off to the side for about 30 seconds before the canine is placed on him.

[00:28:28] Speaker 03:
So there are no shots at all after the dog is off?

[00:28:32] Speaker 04:
No, the canine is 30 seconds after the last round is fought.

[00:28:36] Speaker 04:
And so I don't believe the instructions limited the jury to not considering the second shots.

[00:28:44] Speaker 02:
But I thought there was a pretrial decision by the court to say that intentional acts cannot be part of negligence.

[00:28:54] Speaker 02:
Correct, that was my trial.

[00:28:54] Speaker 02:
So that would have foreclosed counsel arguing that the second volley of shots itself could be a negligent act.

[00:29:05] Speaker 02:
That's my understanding.

[00:29:06] Speaker 04:
Yeah, that would be correct.

[00:29:07] Speaker 03:
I'm just saying it wasn't in the jury instruction.

[00:29:08] Speaker 03:
OK, so yes, I agree.

[00:29:12] Speaker 03:
I got it wrong.

[00:29:13] Speaker 03:
But counsel was told by, and this was Judge Boulware's ruling that the second district judge adopted, you can't argue to the jury shooting him the second time was itself negligent.

[00:29:27] Speaker 04:
So my argument to that would be the they argued battery and that's what they argued extensively that's the claim they wanted to win on because it was in cap and a battery is an unreasonable shooting.

[00:29:38] Speaker 03:
The jury found in favor of the but but that.

[00:29:42] Speaker 03:
The jury instruction for battery would not be the same as for negligence, right?

[00:29:46] Speaker 04:
It was not the same.

[00:29:47] Speaker 04:
It was the same as the Fourth Amendment claim.

[00:29:51] Speaker 04:
It's the same as the Ninth Circuit's Fourth Amendment claim.

[00:29:54] Speaker 03:
But in addition, if they could have argued exactly that shooting the second time was negligent, that also could have changed the percentages, right?

[00:30:03] Speaker 03:
So what they argued was close to that.

[00:30:05] Speaker 04:
What they argued was that they failed to identify a gun still and fired the second volley.

[00:30:12] Speaker 04:
And so that was their negligence theme, was they still hadn't identified a gun, and then two seconds later, they fired a second volley.

[00:30:20] Speaker 04:
And so I get these are morphing together, because I have a hard time understanding

[00:30:26] Speaker 04:
how the negligence claim would come out differently, where they found the shooting was reasonable, but they found the officers essentially were 25% at fault for not identifying it as a gun, but that he still presented an immediate threat and they still acted reasonably in firing at him.

[00:30:42] Speaker 02:
Which gets to my question that I posed to Mr. Gallippo, which is if Nevada law has negligence theories be coextensive with the Fourth Amendment, then that would seem to preclude any separate negligence.

[00:30:58] Speaker 02:
But if it's not, for example, in California, the negligence theory can be seen as broader and different than the Fourth Amendment reasonableness inquiry, in which case a jury might decide that even if an officer acted reasonably under the Fourth Amendment in the second volley, they still could have acted negligently.

[00:31:17] Speaker 04:
So correct.

[00:31:18] Speaker 04:
And so I'm only aware of California.

[00:31:21] Speaker 04:
Obviously didn't do the thorough research on this.

[00:31:23] Speaker 04:
I'm only aware of California allowing an intentional act in a police shooting to be a negligent act as well.

[00:31:28] Speaker 04:
Other jurisdictions make you pick.

[00:31:30] Speaker 04:
Do you pursue with respect to the actual shooting now?

[00:31:33] Speaker 04:
jurisdictions, what they allow is you can argue negligence in tactics.

[00:31:38] Speaker 04:
You can argue that, you know, for example, if, as Your Honor's posed to me, if they had backed up, if they had retreated, and a jury could find that to be negligent in a certain situation.

[00:31:49] Speaker 04:
That's why this case is unique.

[00:31:51] Speaker 04:
Typically, you know, as Your Honor's well aware, it just popped into my head, was the Napuk case you and I did, where two officers stayed on gun, where one probably could have gone to Taser, or should have gone to Taser.

[00:32:01] Speaker 04:
And that would be, it's not excessive force, because both officers were lawfully on a gun because they were presented with a deadly threat.

[00:32:08] Speaker 04:
But it might have been negligent for one of them not to.

[00:32:10] Speaker 04:
So here, what was unique is both of their experts said the officers' tactics were exemplary.

[00:32:16] Speaker 04:
They did everything right until they fired.

[00:32:18] Speaker 04:
They had everything they did up until that point.

[00:32:20] Speaker 04:
So that's why I don't view this as the best case to certify the Nevada Supreme Court on a negligence tactics claim, because there is no evidence of negligent tactics.

[00:32:30] Speaker 02:
Well, let me ask you this, because the state of Brennis, the unpublished Supreme Court decision, seems to strongly suggest that there can be, and that's a police shooting case, and Rocky Mountain is not, it's a very different circumstance, but Brennis seems to suggest that intentional shooting by a police officer could lead to negligence liability, because it sent it back and said, go and take another look, and the court rejected an argument about discretionary immunity.

[00:32:59] Speaker 02:
and said it would not apply in that circumstance, which I think is specific to a negligence theory, if I'm not mistaken.

[00:33:06] Speaker 04:
And I wish I could remember the exact, because Brennis was my case with Mr. Gallipo's office.

[00:33:11] Speaker 04:
And if I recall correctly, is that that order that you're referring to was on the summary judgment order.

[00:33:17] Speaker 04:
And I would agree with that in this case, too, that you go through the evidence at trial, and then you look at whether there's evidence of negligence and or

[00:33:26] Speaker 04:
excessive force.

[00:33:27] Speaker 04:
And if I recall, and I could be wrong on this in Brenness, the negligence claim came out and it went to excessive force.

[00:33:35] Speaker 04:
Now with discretionary immunity, the discretionary immunity was denied in Brenness for the shooting because you cannot violate the Constitution and get discretionary immunity.

[00:33:46] Speaker 04:
But discretionary immunity applies

[00:33:48] Speaker 04:
And so again, the actual shooting would not be protected by in this case either by discretionary immunity, but the tactics.

[00:33:56] Speaker 04:
So, for example, another good go back to the example we're using to retreat.

[00:34:00] Speaker 04:
You could have retreated.

[00:34:01] Speaker 04:
You could have been negligent not to retreat, but that's a discretionary decision that the officers are making that would be protected under Nevada law.

[00:34:08] Speaker 02:
I mean, it may or may not, but I guess to Judge Bennett's point, if the second volley is itself open to a negligence theory, then as you're arguing, that too would not be subject to discretionary immunity.

[00:34:22] Speaker 02:
There's a lot of uncertainty around this case that could be affected by what the Nevada Supreme Court decides on these questions of law.

[00:34:30] Speaker 04:
And I understand what your honors are saying.

[00:34:33] Speaker 04:
It's just in this case, there was so little evidence of negligence.

[00:34:36] Speaker 03:
except and I'm sorry to interrupt your your answer to my colleague, but I Take your point on that except there was something here even with

[00:34:48] Speaker 03:
the limits that the court placed on it that the jury found that the officers did that was negligent.

[00:34:55] Speaker 03:
We, of course, don't know what specific acts they relied on, but notwithstanding your view and your argument that there was no negligence here, the jury found that there was.

[00:35:04] Speaker 03:
So the negligence argument was the failure to identify the dark object as a gun.

[00:35:10] Speaker 03:
But there's no special verdict, right?

[00:35:12] Speaker 03:
There's no special verdict.

[00:35:13] Speaker 03:
Correct, Your Honor.

[00:35:14] Speaker 03:
All right.

[00:35:14] Speaker 03:
Thank you, Counsel.

[00:35:15] Speaker 03:
Thank you, Your Honors.

[00:35:20] Speaker 03:
Council will give you two minutes for rebuttal.

[00:35:23] Speaker 01:
Thank you, Judge Bennett.

[00:35:24] Speaker 01:
So just briefly, I do think it's clear from this discussion that this case should be certified to the Nevada Supreme Court.

[00:35:34] Speaker 01:
It seems to be uncertain to your own clarity and the Brenna's decision as Judge Sanchez pointed out is unpublished.

[00:35:42] Speaker 01:
Number one, can you have negligence in an intentional shooting and what's considered

[00:35:48] Speaker 01:
Obviously, under California law, the pre-shooting tactics is a factor to be considered as to whether the shooting was negligent.

[00:35:57] Speaker 01:
Secondly, I think it needs to be made clear that discretionary immunity does not apply to a use of deadly force case.

[00:36:07] Speaker 01:
Thirdly, I'd like to say that there was evidence of pre-shooting negligence, including, I think, one of the questions perhaps Judge Sanchez

[00:36:18] Speaker 01:
asked about and discussion about whether they should have waited to get the canine and less lethal resources there and perhaps tactically repositioned.

[00:36:32] Speaker 01:
Now, the problem that I had given the court's rulings, I was told if I, and I think this is in our brief, if I discuss any pre first volley shooting

[00:36:44] Speaker 01:
tactics or negligence, then the court's going to instruct the jury that the first volley of shots was found justified as a matter of law.

[00:36:53] Speaker 01:
So I was very limited as to how I can present my case, including on negligence, because of that ruling and because of what Judge Bennett has been saying about the limited time frame of the consideration.

[00:37:08] Speaker 01:
And not only do I think it would be good to clarify these points going forward,

[00:37:14] Speaker 01:
By way of the Nevada Supreme Court, I do agree that it would have changed potentially the percentages which then would have allowed the plaintiffs to have some recovery, albeit limited.

[00:37:28] Speaker 01:
because the jury was told you can consider such a small slice in considering negligent.

[00:37:35] Speaker 01:
And I was specifically told I couldn't argue that the shooting itself was negligent.

[00:37:40] Speaker 01:
So I really felt the plaintiffs were unduly prejudiced by the court's rulings.

[00:37:46] Speaker 01:
And I am very supportive of the Nevada Supreme Court taking a look at this issue.

[00:37:53] Speaker 01:
And I thank you for listening, unless anyone has any other questions of me.

[00:37:58] Speaker 03:
No, we thank both counsel for their arguments.

[00:38:00] Speaker 03:
The case just argued is submitted.

[00:38:04] Speaker 03:
With that, we'll move to the final case on the argument calendar.