[00:00:04] Speaker 03: And we'll proceed to hear argument in the next case on calendar for argument, which is 25-1025, Anna Christine Lewis and Bradley Lewis versus Chris Nanos et al. [00:00:23] Speaker 03: And we will hear first from Mr. Autolet. [00:00:27] Speaker 03: Did I, hopefully I got that correctly. [00:00:31] Speaker 00: You did. [00:00:32] Speaker 03: All right. [00:00:42] Speaker 00: May it please the court, counsel. [00:00:45] Speaker 00: My name is Daryl Modelet. [00:00:46] Speaker 00: I represent the defendants in this case. [00:00:49] Speaker 00: My co-counsel is Andrew Peterson. [00:00:52] Speaker 00: All four from Tucson. [00:00:53] Speaker 00: We're from Tucson. [00:00:55] Speaker 00: Your honors, this case is the quintessential case that warrants the application of qualified immunity, both prongs of qualified immunity. [00:01:09] Speaker 00: We know from the case law [00:01:11] Speaker 00: the qualified immunity can be granted on both prongs. [00:01:16] Speaker 00: Prong one here, of course, is the Fourth Amendment. [00:01:21] Speaker 00: Graham versus Connor. [00:01:23] Speaker 00: Objective reasonableness, objectively reasonable conduct. [00:01:28] Speaker 00: Prong two, clearly established law. [00:01:32] Speaker 00: Both of those prongs warrant application. [00:01:37] Speaker 00: These cases [00:01:39] Speaker 00: qualified immunity cases are in the very first instance, questions of law for the court, not jury questions. [00:01:49] Speaker 00: Questions of law for the court. [00:01:51] Speaker 02: So it's a question of law, whether the deputies were in reasonable fear of their life in the circumstance. [00:01:58] Speaker 02: That's a question of law. [00:02:00] Speaker 00: it becomes a question of law, yes, based on material undisputed facts when that is the appropriate conclusion. [00:02:08] Speaker 02: One of the deputies made a statement after the incident that he was not in fear of his life, correct? [00:02:17] Speaker 00: That was Sergeant Mosley who said both he was in fear of his life at certain times and he wasn't. [00:02:28] Speaker 02: investigative aftermath of the incident, Sergeant Mosley said he was not in fear of his life, correct? [00:02:36] Speaker 00: That's correct. [00:02:37] Speaker 00: From his position, he was not standing in Cadeo's shoes with this man who had a history of gun violence coming at him with a black object in his hand. [00:02:47] Speaker 04: Is the record uncontested that he was coming at him? [00:02:51] Speaker 00: Yes. [00:02:51] Speaker 04: See, no, I don't think it is. [00:02:53] Speaker 04: Your Codillo testifies that he's coming between the two trucks. [00:03:00] Speaker 04: And what we see is that the distance between the two trucks makes that quite unlikely. [00:03:05] Speaker 04: We have an expert who testifies for the plaintiff that he was shot before he came between the trucks. [00:03:12] Speaker 04: And then we have this whole issue of whether or not the officer should have recently perceived that the decedent who was unarmed [00:03:22] Speaker 04: was unarmed. [00:03:23] Speaker 04: And there's evidence that they he was illuminated with with high intensity lights. [00:03:29] Speaker 04: The district judge mentions all this stuff and says, look, that creates a fact question. [00:03:35] Speaker 04: These are issues of material fact that I taking the evidence in the light most favorable to the to the plaintiff side. [00:03:43] Speaker 04: I think there are fact issues. [00:03:45] Speaker 04: So I'm having difficulty thinking about why in this case, it's a question of law. [00:03:51] Speaker 00: There is no evidence that from the time he left the driver's seat of his truck, Mr. Lewis stopped until he hit the ground after being shot. [00:04:03] Speaker 04: He hit the ground before the space between the trucks, correct? [00:04:09] Speaker 04: No. [00:04:13] Speaker 04: Wait, let me just finish. [00:04:14] Speaker 04: You're contending that he was on the ground [00:04:17] Speaker 04: in the space between the trucks? [00:04:19] Speaker 00: No, sir. [00:04:19] Speaker 04: In that four inch space? [00:04:21] Speaker 00: No, sir. [00:04:22] Speaker 04: So he was on the ground before reaching the space between the trucks, correct? [00:04:27] Speaker 00: Let's get clear on the direction. [00:04:28] Speaker 00: Yes, sir. [00:04:29] Speaker 00: Let's get clear on the direction. [00:04:31] Speaker 00: He comes out of his truck towards Cadeo. [00:04:34] Speaker 00: He's going down the side of his bed, the driver's side of the bed. [00:04:37] Speaker 04: Right, before he reaches Cadeo's truck or vehicle. [00:04:42] Speaker 00: Okay. [00:04:42] Speaker 00: He gets through that gap. [00:04:45] Speaker 04: You're saying that. [00:04:46] Speaker 04: But it seems to me there's substantial evidence to the contrary. [00:04:49] Speaker 00: There's not. [00:04:50] Speaker 00: And in fact, the photographic evidence shows the bloodstain where he landed two feet past the rear bumper of that truck. [00:05:01] Speaker 00: Those photos are in the record. [00:05:03] Speaker 04: But not in the gap between the trucks, correct? [00:05:08] Speaker 00: The blood two and a half to three feet from the rear bumper of the truck. [00:05:17] Speaker 00: which puts him about six and a half feet in front of Officer Deputy Codillo. [00:05:21] Speaker 04: You're asking the same question. [00:05:23] Speaker 04: There's a gap between Lewis's truck and Codillo's vehicle, correct? [00:05:32] Speaker 00: That's the gap you're talking about. [00:05:34] Speaker 00: I thought we were talking about the gap between the compound and the truck. [00:05:38] Speaker 04: No, no, I'm sorry. [00:05:38] Speaker 04: I was not clear. [00:05:39] Speaker 04: I'm sorry. [00:05:40] Speaker 04: There's a gap between the two vehicles, correct? [00:05:43] Speaker 04: And it's rather narrow. [00:05:44] Speaker 00: Yes. [00:05:45] Speaker 04: He is not in that gap when he shot, correct? [00:05:49] Speaker 04: That's where he lands. [00:05:51] Speaker 04: He lands in that four and a half, again, focus on the gap between Cordillo's vehicle and Lewis's vehicle. [00:06:00] Speaker 04: Are you saying that he was in that, he fell into that four and a half inch gap? [00:06:07] Speaker 00: You called it a four and a half inch gap? [00:06:10] Speaker 02: Whatever the gap was. [00:06:11] Speaker 04: Well, whatever the size of it was. [00:06:13] Speaker 04: You're saying that he fell into the gap between the two vehicles, or what you're saying is that he fell in the distance between where his door was and where the gap between the Codillo vehicle and the Lewis vehicle was. [00:06:29] Speaker 00: He got out of his truck, and in Mosley's words, bolted lightning fast to the rear of his truck. [00:06:39] Speaker 00: There was his truck. [00:06:41] Speaker 04: Okay, I understand that. [00:06:43] Speaker 04: I understand. [00:06:43] Speaker 04: Let's assume that's true. [00:06:45] Speaker 04: He couldn't have... Cadeo says he's coming right at me. [00:06:49] Speaker 00: Yes. [00:06:49] Speaker 04: And he can't come through that gap, can he? [00:06:51] Speaker 00: Yes. [00:06:53] Speaker 04: No? [00:06:53] Speaker 04: Yes? [00:06:53] Speaker 04: He cannot. [00:06:54] Speaker 00: There are two gaps. [00:06:55] Speaker 00: The gap... I know. [00:06:56] Speaker 04: I know the one. [00:06:57] Speaker 04: You want to keep focusing on the gap between his door and Cadeo's vehicle. [00:07:01] Speaker 04: And I'm asking you to focus on the gap between Cadeo's vehicle and the park truck. [00:07:09] Speaker 00: The front of Cadio's patrol vehicle. [00:07:11] Speaker 04: He could not have gotten all the way to where Cadio was, correct? [00:07:16] Speaker 00: He didn't make it that far, no, because he was shot. [00:07:18] Speaker 04: He could not have gotten there because the trucks were so adjacent to each other that he couldn't have, I've looked at the photos too, he couldn't have walked or done anything but dive over that gap, correct? [00:07:32] Speaker 00: No. [00:07:35] Speaker 04: Let's try something where we probably won't fight about the facts, just the interpretation of them. [00:07:44] Speaker 04: You agree that he wasn't armed? [00:07:47] Speaker 00: In hindsight, he was not armed. [00:07:48] Speaker 04: Well, he wasn't armed. [00:07:49] Speaker 04: He wasn't armed, whether it's in hindsight or foresight or whatever. [00:07:53] Speaker 04: Don't fight me on this. [00:07:54] Speaker 04: He wasn't armed, correct? [00:07:56] Speaker 00: Graham versus Conner tells us we have to look at it from a perspective. [00:07:59] Speaker 00: Don't tell me what the case is. [00:08:00] Speaker 04: I'm just asking you about a predicate fact. [00:08:03] Speaker 04: He wasn't armed, correct? [00:08:05] Speaker 04: If the officer should have reasonably perceived that he wasn't armed, then we have a Fourth Amendment violation, do we not? [00:08:16] Speaker 00: If the officer would have perceived he was not armed before he makes the decision to shoot. [00:08:23] Speaker 04: Yes. [00:08:25] Speaker 00: Well, I mean, we get back to Wade versus City of Lyons. [00:08:30] Speaker 04: The officer looks at this gentleman coming out of the car. [00:08:33] Speaker 04: and says, he's not armed, but I'm going to fire at him anyway because he's walking towards me. [00:08:37] Speaker 04: That would be a Fourth Amendment violation, would it not? [00:08:40] Speaker 00: In Wade versus City of, or County of Lyon, the court held, the Ninth Circuit held that a person running at the officers in a narrow hallway, unarmed, empty hands, shot five times, was not a Fourth Amendment. [00:09:00] Speaker 02: Let's focus on that issue. [00:09:03] Speaker 02: Would you agree that it is an issue of material fact? [00:09:08] Speaker 02: Whether Lewis was charging at Cadeel Yes, or no. [00:09:13] Speaker 02: No, it's not a material fact. [00:09:16] Speaker 00: No Why not you can shoot his gun from any position? [00:09:22] Speaker 00: He can shoot if the claim is he's falling diving etc. [00:09:26] Speaker 00: This is not a knife case [00:09:27] Speaker 00: This is a gun case. [00:09:29] Speaker 04: It turns out not to be a gun case because there's no gun. [00:09:32] Speaker 04: If you're arguing that he reasonably perceived that he had a gun, I understand that. [00:09:37] Speaker 04: But now you're saying, I don't care whether he had a gun or not, he was entitled to shoot him. [00:09:41] Speaker 00: No, I'm not saying that. [00:09:42] Speaker 00: I'm saying Wade versus Lyon says that. [00:09:48] Speaker 04: In a hallway where there's no obstruction to the person getting all the way there. [00:09:52] Speaker 00: No obstruction here to getting to Cadeo. [00:09:54] Speaker 04: So that's why I'm still having difficulty with this. [00:09:57] Speaker 04: Are you saying that he had a free path all the way to where Cadeo was standing? [00:10:02] Speaker 00: Yes. [00:10:03] Speaker 04: How do you deal with the pictures that show that there's a narrow gap between, that he'd have to, a four inch or six inch gap that he'd have to make his way through? [00:10:12] Speaker 00: So you're using the 4.3 inch. [00:10:14] Speaker 04: Well, make it six, make it seven. [00:10:16] Speaker 00: I mean, there's a 9 or 10. [00:10:20] Speaker 00: And this was a 140, 150 pound skinny young man. [00:10:23] Speaker 00: He made it through that gap between the grandfather truck and his truck, and he was shot and landed two and a half feet further than that gap towards Cadeo, six and a half feet from where Cadeo was standing. [00:10:37] Speaker 02: On the issue of whether Lewis was charging at Cadeo, isn't it correct that Sergeant Mosley thought Lewis was trying to get into his grandparents' house? [00:10:52] Speaker 00: No. [00:10:52] Speaker 02: He never say that he never said that he are 7, 1, 7. [00:10:59] Speaker 00: Mostly says that yes, I don't recall that. [00:11:04] Speaker 02: Can I grab the please I invite you. [00:11:18] Speaker 02: We may save Council some time in my right. [00:11:24] Speaker 02: Okay. [00:11:30] Speaker 02: Seven, one, seven at four. [00:11:51] Speaker 00: That is in the Moseley statement. [00:11:52] Speaker 00: Yes, I sang corrected. [00:11:53] Speaker 00: Yes, sir. [00:11:54] Speaker 02: Thank you. [00:12:00] Speaker 02: What about the expert testimony about the trajectory of the bullet and where Lewis landed? [00:12:09] Speaker 00: Right. [00:12:09] Speaker 00: Well, we know he's traveling down the driver's side of the bed of his pickup towards Cadeo. [00:12:18] Speaker 00: You with me? [00:12:21] Speaker 00: And he has to turn. [00:12:24] Speaker 00: to get through that and it's a 9 or 10 inch gap measured by their own biomechanical engineer, Dr. Joe Pellis, when he tries to do this recreation. [00:12:34] Speaker 00: It's not a 4 inch gap, 9 or 10 inch gap. [00:12:38] Speaker 00: If you look at the aerial and if you look at the ground view facing the rear of the truck, you'll see that the outside side mirror of the F-150, grandfather's F-150, [00:12:54] Speaker 00: sticks out kind of into that gap right at the corner of the left-hand rear corner of the truck bed. [00:13:02] Speaker 00: So he's got to get around that mirror. [00:13:07] Speaker 00: So his position, I think it was over here, has to be something like this for the trajectory to enter his shoulder [00:13:22] Speaker 00: and go into his chest cavity, I think into his right lung. [00:13:28] Speaker 00: So he's either crouched, they call it, he's falling, he's diving, et cetera. [00:13:33] Speaker 00: He is, his right shoulder is lowered. [00:13:36] Speaker 00: He could be getting around that side view mirror. [00:13:39] Speaker 02: If Sergeant Mosley was correct, that what Lewis was attempting to do was to get into his grandfather's house [00:13:50] Speaker 02: Wouldn't that mean he was not charging a good deal? [00:13:58] Speaker 00: I don't know how you draw that conclusion. [00:14:00] Speaker 00: He's, he's, he's fleeing. [00:14:01] Speaker 00: He's in flight. [00:14:02] Speaker 00: If he's trying to get in the house, he's trying to get in the house in a darn hurry. [00:14:08] Speaker 02: Here's my point. [00:14:10] Speaker 02: If Sergeant Mosley is correct, that what Lewis was doing was heading toward the grandparents house. [00:14:19] Speaker 02: Wouldn't that contradict the notion that he was charging at Cadeo? [00:14:24] Speaker 02: Yes or no? [00:14:26] Speaker 00: No. [00:14:27] Speaker 02: Tell me why. [00:14:28] Speaker 00: Because he has to come to Cadeo far enough to get past the edge of his truck to turn left to go into the garage, into the house. [00:14:37] Speaker 00: Look at the aerial. [00:14:38] Speaker 00: Look at the ground level photo. [00:14:41] Speaker 00: I had intended to reserve five minutes, but I'm past that now. [00:14:46] Speaker 03: That's all right. [00:14:48] Speaker 03: I'll raise the clock up to five to give you rebuttal because we've asked you a lot of questions. [00:14:53] Speaker 03: Thank you, sir. [00:14:54] Speaker 03: Okay. [00:14:55] Speaker 03: But we'll hear now from Mr. Coronado. [00:15:15] Speaker 01: Good morning. [00:15:15] Speaker 01: May it please the court. [00:15:18] Speaker 01: uh... judges council uh... my name's a lot of the corner and i represent uh... uh... the louis family and the strictly family uh... parents of bradley alexander louis uh... the request of course is that the court this quarter from the ruling by the district court uh... [00:15:48] Speaker 01: ruling that there is, at least at this point, no qualified immunity and based on the fact that court obviously enumerated several issues that it saw were questions of fact rather than questions of law. [00:16:10] Speaker 03: What do you see as the key disputed issues of material fact that are relevant to the use of force by Cadeo? [00:16:19] Speaker 01: Your Honor, the key is the lack of immediate threat to Codeo. [00:16:29] Speaker 03: And the reason is... Can you... I mean, that is kind of a mixed question of law and fact phrasing of it. [00:16:37] Speaker 03: Can you tell me in terms of a purely factual issue, what are the factual issues that are in dispute that need to be [00:16:48] Speaker 03: to be tried with respect to the issue of Cadillo's use of force? [00:16:56] Speaker 03: Yes. [00:16:56] Speaker 03: Is there a factual issue about the direction he was moving? [00:16:59] Speaker 03: Tell me in terms of fact, not in terms of mixed question of law and fact. [00:17:05] Speaker 01: Thank you. [00:17:05] Speaker 01: I will do my best. [00:17:10] Speaker 01: Bradley Alexander Lewis is known as Alex. [00:17:13] Speaker 01: So I will refer to him as Alex. [00:17:15] Speaker 01: Alex gets out of his vehicle. [00:17:21] Speaker 01: Sergeant Mosley is really close to him. [00:17:25] Speaker 01: So he starts going towards, I'll call it the first gap. [00:17:33] Speaker 01: The gap is the wedge between the Ford truck and the Toyota truck. [00:17:38] Speaker 01: That's the first gap. [00:17:40] Speaker 01: He starts going through. [00:17:42] Speaker 03: If I'm looking at the visual, tell me which car, because I see [00:17:49] Speaker 03: His car at the front, the parked car, and then Codillo's car. [00:17:54] Speaker 03: Tell me in relation to that. [00:17:56] Speaker 01: I would say that that's the second gap, Your Honor, because there's a Ford truck which belongs to the grandfather. [00:18:07] Speaker 03: That's the car that's parked over to the left. [00:18:12] Speaker 03: I'm looking at this aerial. [00:18:16] Speaker 03: So is it? [00:18:17] Speaker 01: Yes. [00:18:17] Speaker 03: Yes. [00:18:17] Speaker 03: Part to the left here. [00:18:18] Speaker 03: That's the grandfather's. [00:18:19] Speaker 01: Yes. [00:18:20] Speaker 03: I just want to make sure we're talking about the same thing. [00:18:22] Speaker 01: Yes. [00:18:23] Speaker 01: So there is that. [00:18:26] Speaker 01: I'll keep referring to it as the first gap. [00:18:30] Speaker 01: And there's a dispute whether there's a four inch gap or a nine inch gap. [00:18:36] Speaker 04: There's testimony on plaintiff's experts. [00:18:40] Speaker 04: One says four inch. [00:18:41] Speaker 04: The other one says nine. [00:18:42] Speaker 01: And what I'm trying to say is that, let's just say it's nine. [00:18:46] Speaker 01: Let's just say it's nine. [00:18:49] Speaker 03: Because... The gap between the part grandfather's car and his car. [00:18:53] Speaker 03: Yes. [00:18:54] Speaker 03: And he's coming through there. [00:18:55] Speaker 01: Yes. [00:18:59] Speaker 01: The gap, even if it's nine inches, to a kid, yes, he's 19, his slender, [00:19:10] Speaker 01: And if you take into account the length of the vehicle, right, the length of his vehicle, to get to the back, to then go from both, especially Mosley says, we can't believe he went from fleeing to attacking. [00:19:31] Speaker 01: I don't know if you remember, but those were his words. [00:19:34] Speaker 01: And so that's subjective of itself, that he's attacking. [00:19:40] Speaker 01: But nonetheless, the crux of the factual dispute is he's coming towards that first gap. [00:19:53] Speaker 01: And to be able to navigate that first gap, he has got to slow down. [00:20:00] Speaker 01: There's no other way to do it because their trucks are, I'm sorry, the trucks are so close to each other that he's got to slow down. [00:20:09] Speaker 04: Can I stop you for a second here? [00:20:11] Speaker 04: Absolutely. [00:20:12] Speaker 04: Assume for a moment that he actually had a gun in his hand. [00:20:16] Speaker 04: We know he didn't. [00:20:19] Speaker 04: This would be, I think, even under this dispute about how he was coming through or how fast. [00:20:27] Speaker 04: It seems to me this would be a case in which qualified immunity would probably be called for. [00:20:32] Speaker 04: So isn't a critical factual dispute in this case whether the officers [00:20:38] Speaker 04: or the shooting officer could have reasonably perceived that what he was carrying was not a gun, but simply a key fob. [00:20:48] Speaker 04: In other words, if it were undisputed that he had a gun or that he was carrying something, a water pistol that was undoubtedly looked like a gun, it seems to me you'd have a very hard case. [00:21:01] Speaker 04: What makes this case more difficult is the testimony that he was well illuminated. [00:21:08] Speaker 04: And the clear, we all seem to keep up, it's not automatically a gun. [00:21:14] Speaker 04: Maybe somebody reasonably perceived it to be one or didn't. [00:21:17] Speaker 04: But that strikes me as the critical question of fact in the case. [00:21:21] Speaker 04: I would have to agree. [00:21:23] Speaker 04: And absent that, it seems to me the other factual disputes don't seem to make much of a difference. [00:21:31] Speaker 01: because of the way he was moving, right? [00:21:36] Speaker 01: So if the way he's moving, he's not pointing the gun, right? [00:21:40] Speaker 04: So I'm going with your... Well, some of the testimony is he's got his hands in the air. [00:21:45] Speaker 04: There's later one of the officers says after looking at the expert report, yeah, maybe now I think he was pointing the key fob at me or something. [00:21:54] Speaker 04: But there seems to be a dispute about [00:21:57] Speaker 04: where this thing in his hand was positioned. [00:21:59] Speaker 01: Two and a half years later, remember that Gaudillo changed his testimony two and a half years later to say that's what it looked like. [00:22:09] Speaker 04: Let me ask the question differently. [00:22:12] Speaker 04: Let me ask you to assume that I'd have a difficult time finding the absence of qualified immunity if he had a gun in his hand. [00:22:20] Speaker 04: So the question is [00:22:22] Speaker 04: What's the factual issue to be tried about whether the officer is reasonably perceived that he had a gun in his hand or not? [00:22:30] Speaker 01: Several. [00:22:31] Speaker 01: One, the big one is Mosley, Sergeant Mosley, who is closer to Alex, did not perceive a threat, did not see it as a gun, never called it a gun, never [00:22:50] Speaker 01: shouted out, but there were several law enforcement, several sheriff, never shouted that there was a gun. [00:22:57] Speaker 01: Caudillo never gave a warning. [00:22:59] Speaker 01: Nobody gave a warning that there was a gun. [00:23:01] Speaker 02: Well, Caudillo, when he was later interrogated or questioned in the presence of his attorney, said, well, my training would have taught me to give a warning. [00:23:15] Speaker 02: But there is a question of fact as to whether warnings were given, correct? [00:23:21] Speaker 01: There is a question that I would say in profit to the court that he did not give the warning. [00:23:29] Speaker 01: He's never said he's good. [00:23:30] Speaker 01: One, he never said. [00:23:32] Speaker 01: Mosley never heard it. [00:23:34] Speaker 01: Nobody heard this warning. [00:23:38] Speaker 02: But there were some residents of the area that heard something like, get your hands up. [00:23:45] Speaker 01: Absolutely. [00:23:46] Speaker 01: And our position, Your Honor, is that once he is down, once he is shot, obviously, that's what the officers are saying. [00:23:57] Speaker 01: That, get your hands up. [00:24:00] Speaker 01: Nobody knows what he's doing. [00:24:02] Speaker 01: And that's where those statements come from. [00:24:05] Speaker 02: Now, the district court, if we were to send this back, the district court could conduct a full trial. [00:24:15] Speaker 02: And at the close of evidence, conclude that in the totality of the circumstances, these sheriff's deputies acted reasonably. [00:24:26] Speaker 02: Isn't that correct? [00:24:29] Speaker 02: As a matter of law, Judge Marcus could hear all of the evidence and say, now that I've heard it all, whether there was a warning given, what direction was he charging at the officers? [00:24:41] Speaker 02: Were they in reasonable fear? [00:24:44] Speaker 02: Because quite frankly, at the end of the day, the decedent is no choir boy. [00:24:53] Speaker 02: He had an extensive record of brandishing firearms, right? [00:25:01] Speaker 01: Depending on how you describe record, because there were allegations, there were no convictions that I'm aware of. [00:25:08] Speaker 02: a retired law and often off-duty law enforcement officer saw him threaten somebody with a weapon correct that that is that's correct. [00:25:20] Speaker 01: But that in itself is a question. [00:25:24] Speaker 01: Whether that's accurate is what I mean the question is that the [00:25:30] Speaker 01: To get to your question, yes, I mean the district court could, the defendant could move or direct a verdict. [00:25:47] Speaker 02: Or Judge Marquez could do it on her own motion. [00:25:50] Speaker 02: after she heard all of the evidence she could yes live witnesses and exhibits, et cetera. [00:25:57] Speaker 02: Yes. [00:25:57] Speaker 02: Okay. [00:25:58] Speaker 02: Thank you. [00:25:59] Speaker 04: I want to ask a question about the record and you don't seem to rely on this in your briefing. [00:26:04] Speaker 04: So if you don't think it's relevant, you can tell me there's some reference to the recording [00:26:11] Speaker 04: on what I would call a keyhole camera or keyhole device of a neighbor saying something like, he's going to the ground and they shot him or he's on the ground and they shot him. [00:26:22] Speaker 04: And I can't find, that was not transmitted to us. [00:26:26] Speaker 04: We've asked the district court to send that file up to us. [00:26:33] Speaker 04: What's your contention about that? [00:26:34] Speaker 04: I don't see anything in your brief about it. [00:26:37] Speaker 04: It seems to me if there were an eyewitness who said, [00:26:40] Speaker 04: He was going to the ground and they shot him. [00:26:42] Speaker 04: That would be relevant, but I'm not sure. [00:26:44] Speaker 04: The district court doesn't seem to make a finding about it. [00:26:47] Speaker 04: It's mentioned in closing. [00:26:49] Speaker 04: I know the other side says it's indistinct and the witness eventually says later, I don't remember saying that, but those would seem to be fact issues as opposed to legal issues. [00:26:58] Speaker 04: I'm just trying to figure out what, do you rely on this at all? [00:27:00] Speaker 04: And if so, why? [00:27:02] Speaker 04: We do. [00:27:03] Speaker 04: It's not in your brief. [00:27:05] Speaker 01: and the reason is because the audio at that point to us was not clear and that's the biggest reason. [00:27:17] Speaker 01: But after reviewing it and [00:27:25] Speaker 01: reviewing it with our expert, even though it didn't make the brief, we can hear that. [00:27:33] Speaker 04: The district judge doesn't seem to rely on it, am I correct? [00:27:37] Speaker 04: It's not one of the issues she thinks creates an issue of fact? [00:27:40] Speaker 01: Judge Marcus does not, that is correct. [00:27:47] Speaker 01: Okay. [00:27:49] Speaker 01: That's one issue. [00:27:51] Speaker 01: The other issue is, and it goes to reasonableness, is the different accounts by Caudillo, especially, how he perceived what was happening, waiting two and a half years to change his testimony and saying, [00:28:18] Speaker 01: I perceived him, and that's the way he was holding the key fob, is very telling, and because of his change in statements, especially with the guidance of an attorney, goes back to credibility, but the reasonableness of how [00:28:50] Speaker 01: Alex could have taken the stand that he says, now he says, he was holding the fob. [00:28:57] Speaker 01: I mean, it doesn't make any sense. [00:28:59] Speaker 01: Why would you want to hold the fob that way if you're trying to flee or attack? [00:29:09] Speaker 01: Then it would take an incredible amount of time to place [00:29:18] Speaker 01: that fob, the way that expert IMS is holding it, to be able to make it an attempt at looking at that fob and deducing that it's possibly a gun. [00:29:32] Speaker 01: And that is what Harmony, our expert, is saying. [00:29:35] Speaker 01: That's what Hague is saying is Alex is falling down. [00:29:41] Speaker 01: Again, a contradiction of what Caudillo is saying. [00:29:43] Speaker 01: That's physical evidence. [00:29:45] Speaker 01: the trajectory of the bullet that went through the Ford truck all suggests he is falling down, he is not attacking. [00:29:55] Speaker 04: Can you help me, and maybe I was confused in asking your friend about this, where is the body? [00:30:03] Speaker 04: The body is found through the gap, correct? [00:30:06] Speaker 04: Thank you for that question. [00:30:08] Speaker 04: But I'm trying to figure out where this contested evidence about where he was when he was shot. [00:30:12] Speaker 04: Very good question. [00:30:13] Speaker 01: Because that body is moved, Your Honor, the body is moved. [00:30:17] Speaker 01: I'm out of time, but can I finish? [00:30:20] Speaker 01: The body is moved to render aid to him so that there's two blood puddles. [00:30:26] Speaker 01: One is very close to the vehicle, which indicates he's going through that first. [00:30:32] Speaker 01: When you say the vehicle, what vehicle do you mean? [00:30:34] Speaker 01: Yeah, the first gap between the two vehicles that are between four and nine inches. [00:30:40] Speaker 01: So he's fallen. [00:30:41] Speaker 01: When he's shot, he kind of collapses and the blood puddle is right really close to the two vehicles that are adjacent to each other that I keep calling the first gap. [00:30:54] Speaker 01: That indicates he is falling right, he's falling [00:30:59] Speaker 01: And he never made it through the wedge or that first gap. [00:31:03] Speaker 01: That second puddle is what the defense is concentrating on. [00:31:08] Speaker 01: That's where he's moved. [00:31:10] Speaker 01: But even that second puddle does not put him next to or even close to Caldillo, and that's what the experts are saying. [00:31:17] Speaker 04: Thank you. [00:31:18] Speaker 04: Factual stuff is what I was looking for. [00:31:22] Speaker 03: All right. [00:31:23] Speaker 03: Thank you, counsel. [00:31:23] Speaker 03: We're here to rebuttal now. [00:31:25] Speaker 03: Well, thank you, Your Honor. [00:31:26] Speaker 03: Thank you. [00:31:27] Speaker 03: Can you focus specifically on the question whether there is a disputed issue of fact as to how the fob and its attachment were being held and whether that could reasonably be perceived as a firearm? [00:31:45] Speaker 00: Yeah, we had Steve Iams who is our police procedures expert come down and he did his investigation and I had him [00:31:57] Speaker 00: Take the fob and ask him if he could hold it in a manner that looks like a handgun. [00:32:05] Speaker 00: And he did that. [00:32:06] Speaker 00: And we took photos of that. [00:32:07] Speaker 00: And that's when we showed Officer Cadeo, Deputy Cadeo, those photos. [00:32:14] Speaker 00: He said, that's what I saw. [00:32:15] Speaker 00: And he's holding it in a way where you've heard the word index finger. [00:32:19] Speaker 00: The fob is sitting on top of his index finger. [00:32:23] Speaker 00: The lanyard is trailing below. [00:32:26] Speaker 00: Do we know exactly how he was holding it? [00:32:29] Speaker 00: No. [00:32:30] Speaker 00: Do we know if the lanyard, which is thick and wide, was piled on top of the fob or how it was being held? [00:32:38] Speaker 00: We don't know. [00:32:39] Speaker 00: Here's something that I really, really want to clear up. [00:32:43] Speaker 03: One of the points that he's making is he's contending that Cardillo changed his testimony. [00:32:50] Speaker 03: And if that's true, that would permit a jury to infer that [00:32:55] Speaker 03: he's not trustworthy and set aside what he has said. [00:33:00] Speaker 03: If that's true, then what do you have left that would establish that he was holding in a way that would reasonably be viewed as a firearm? [00:33:11] Speaker 00: And that's exactly where I was going next. [00:33:13] Speaker 00: Thank you for raising that. [00:33:16] Speaker 00: Because the judge raised that in the order, that initially in the order, the first order, the judge said [00:33:24] Speaker 00: or suggested he didn't really say it was a gun until his deposition was taken two years later, whenever that was, which wasn't true. [00:33:38] Speaker 00: And we did a motion for reconsideration, you may recall reviewing, pointing this out to the judge. [00:33:46] Speaker 00: And the judge said, okay, he did say that in his interview, [00:33:52] Speaker 00: with the detectives after the event, but he only talked about there being a gun after there was this hour and a half of questioning and then a break. [00:34:05] Speaker 00: And then he came back and later in the second half said there was a gun. [00:34:13] Speaker 00: Your honors, even that is not true. [00:34:16] Speaker 00: He said it was a gun in that interview. [00:34:20] Speaker 04: You give us a record citation. [00:34:23] Speaker 00: I can. [00:34:25] Speaker 00: Um. [00:34:28] Speaker 00: Er 847. [00:34:30] Speaker 03: Volume. [00:34:35] Speaker 03: That volume for I have to ask. [00:34:43] Speaker 00: It's er 847 I. Don't know the exact volume, but it's all sequential. [00:34:53] Speaker 00: Here's what he says, and by the way, okay, let me finish that up because that's on page 847, ER 847. [00:35:00] Speaker 00: On page ER 849, at the bottom of the page, at line 31, that's where they take the break. [00:35:07] Speaker 00: All right, two pages later, single space, I don't know how much time elapsed. [00:35:12] Speaker 00: And that break was six minutes. [00:35:14] Speaker 03: I'm on page 847. [00:35:15] Speaker 03: What line does he say? [00:35:18] Speaker 00: Go down to 31. [00:35:19] Speaker 03: 31, okay. [00:35:21] Speaker 03: At that time, I thought he had a gun in his hand. [00:35:23] Speaker 00: And then he says it again on 33, a gun in his hand. [00:35:27] Speaker 04: And how long into the interview does this occur? [00:35:32] Speaker 04: It's just before they felt compelled to take a break, right? [00:35:36] Speaker 00: At 849, at ER 849, where they take a break at 1156, that's about an hour and 20 minutes is where they take the break. [00:35:47] Speaker 00: So it's before then. [00:35:50] Speaker 00: It's before then. [00:35:51] Speaker 00: So that, you know, it's not true that he just made this up or he changed his story or anything. [00:35:55] Speaker 04: Well, but he did say initially something about him having his hands in the air, did he not? [00:36:02] Speaker 00: He said his hands are moving, as I recall. [00:36:05] Speaker 00: This is very fluid, very dynamic. [00:36:07] Speaker 00: There's no stopping. [00:36:09] Speaker 00: And keep in mind that their own expert, Dr. Joe Pellis, who's a biomechanical engineer, kind of tried to reenact and reconstruct what happened. [00:36:19] Speaker 00: And he puts the time frame from the time Mr. Lewis exited his truck to that gap that [00:36:32] Speaker 00: left rear corner of the truck of the bed where that gap is at somewhere between 2.4 and four seconds. [00:36:42] Speaker 00: That's the time. [00:36:43] Speaker 00: And by the way, and Cadeo says he didn't see him that entire time because he didn't see him exit the truck. [00:36:50] Speaker 00: If you look at the aerials, you'll see that the way the vehicles are parked, Cadeo may not have a view of the truck opening. [00:37:01] Speaker 00: He just sees the guy when he's about at the bed of the truck coming at him. [00:37:06] Speaker 00: So he doesn't have the full 2.4, excuse me, it was 2.7 to four seconds. [00:37:14] Speaker 00: There are, in order to really understand this whole gap issue, the gap between grandfather's truck where the right rear view outside mirror is and the rear corner of the bed, [00:37:33] Speaker 00: Let me give you some ER. [00:37:36] Speaker 03: Can you wrap up, because I've allowed you to go over your time. [00:37:39] Speaker 00: Let me give you three, four ER numbers. [00:37:42] Speaker 00: SER00091, ER110, ER343. [00:37:54] Speaker 00: Those are all photographs that you can look at to see what the [00:38:03] Speaker 00: objects were that he had to get around and get through. [00:38:07] Speaker 00: Can I just say one more thing? [00:38:09] Speaker 03: Yes. [00:38:10] Speaker 03: And then your time has expired. [00:38:12] Speaker 00: Yes. [00:38:13] Speaker 00: I think I lost my place. [00:38:23] Speaker 00: So I think I'm done. [00:38:25] Speaker 03: All right. [00:38:25] Speaker 03: All right. [00:38:26] Speaker 03: Thank you, counsel. [00:38:27] Speaker 03: The case just argued will be submitted, and the court [00:38:33] Speaker 03: We'll stand in recess for the day.