[00:00:00] Speaker 03:
Mr.. Neal or excuse me mr.. Davenport Good morning your army at police the court Scott Davenport and my partner Melissa Ballard for the appellants I would like to reserve two minutes of my argument from above just try and watch the clock I will thank you

[00:00:18] Speaker 03:
On November 21st, 2021, exactly four years ago today, West Covina police officers were on patrol when they attempted to perform a routine traffic stop on a vehicle driven by Appellee Ronnie Parham.

[00:00:33] Speaker 03:
Unbeknownst to the officers, Parham had suffered four felony convictions and been sentenced to... And what is the relevance of that?

[00:00:38] Speaker 01:
Did they know it at the time?

[00:00:39] Speaker 01:
It was unbeknownst to them, so it's completely irrelevant.

[00:00:42] Speaker 03:
I think it goes to his mind... Wait, excuse me.

[00:00:45] Speaker 01:
I'm sorry.

[00:00:45] Speaker 01:
Did they know it at the time?

[00:00:47] Speaker 03:
No, they did not.

[00:00:50] Speaker 04:
I Guess what we're trying to do is We're trying to make sure that we have jurisdiction over this appeal absolutely because if we have jurisdiction It's limited as to whether your officers are entitled to immunity as a matter of law assuming all factual disputes and

[00:01:15] Speaker 04:
are resolved and all reasonable inferences are drawn in the plaintiff's favor.

[00:01:23] Speaker 04:
So we can't look at what facts your officers would allege really except as to what they allege that hasn't been contradicted by the plaintiff.

[00:01:36] Speaker 04:
We have to look every time at what the plaintiff alleges.

[00:01:41] Speaker 04:
and then apply the standard that applies in qualified immunity cases.

[00:01:49] Speaker 04:
And so I think that's why Judge Berzon's question was pretty important because we're really looking at what did the plaintiff allege and how is the law such that even with the plaintiff's allegations, you would win?

[00:02:07] Speaker 03:
I understand your arm.

[00:02:09] Speaker 03:
Let's start it this way then.

[00:02:11] Speaker 04:
I'm going to be fair.

[00:02:12] Speaker 04:
I looked at the dish cam and I don't think it helps at all.

[00:02:17] Speaker 03:
Understood.

[00:02:18] Speaker 03:
Let's go with what does help then.

[00:02:20] Speaker 03:
Let's talk about the non-force claims, and that would be the search, the detention, the malicious prosecution claim, because there's really three issues in this case.

[00:02:31] Speaker 03:
There are his excessive force claims, there's the non-force claims, and there's the deliberate indifference claims.

[00:02:37] Speaker 03:
Let's start with this middle one, the non-force claims.

[00:02:40] Speaker 03:
Hopefully I can get some wind of myself at that point.

[00:02:42] Speaker 04:
False arrest, you mean?

[00:02:44] Speaker 03:
False arrest, malicious prosecution, illegal search, inventory search, those ones.

[00:02:50] Speaker 01:
Well, the false arrest stands or falls with what happened during the incident that you can't see on the video, right?

[00:02:57] Speaker 03:
No, not completely.

[00:02:59] Speaker 03:
It also has to do with the felony evading that happened before that.

[00:03:03] Speaker 01:
The felony evading?

[00:03:04] Speaker 03:
Yes, ma'am.

[00:03:05] Speaker 03:
What happened was the plaintiff, for his part, admitted that he saw lights behind him and didn't pull over.

[00:03:12] Speaker 03:
He admitted that he stopped and pulled away.

[00:03:15] Speaker 03:
And he admitted that the officers activated their sirens, and he still didn't pull over immediately.

[00:03:20] Speaker 01:
Well, according to him, he didn't see anything until he turned into the last street.

[00:03:25] Speaker 01:
And then he pulled over, and then he decided he was going to go down the street to his grandfather's house and stop there, which is what he did.

[00:03:33] Speaker 03:
That's right.

[00:03:33] Speaker 03:
He pulled over, and then he kept going, even though he knew they were behind him.

[00:03:38] Speaker 03:
He admitted to those things.

[00:03:39] Speaker 01:
He certainly didn't speed up.

[00:03:41] Speaker 01:
He certainly wasn't trying to flee.

[00:03:42] Speaker 01:
That was pretty obvious.

[00:03:46] Speaker 01:
I your honor he he admitted these facts I don't know I don't know and there is video of it with an admission and video I'm not sure you say for example your brief that he sped away he didn't speed away he went at the speed limit on a residential street you know and there was no indication that he was fleeing

[00:04:12] Speaker 03:
I don't know what other indication there can be when you pull over from a police officer, and then you pull away after one second.

[00:04:19] Speaker 03:
And we're looking at this from the perspective of the reasonable police officer on the scene.

[00:04:24] Speaker 03:
This is a man who, for whatever reason, did not stop, and then eventually did, and then after he stopped for a moment, he took off again.

[00:04:32] Speaker 03:
And then he eventually pulled over a second time.

[00:04:35] Speaker 03:
That's the backstory of what happened, and that's the basis

[00:04:38] Speaker 03:
That's one of the basis for the arrest a separate apart from the use of the force and all of that happened before any force was ever used in this case.

[00:04:46] Speaker 03:
So those are undisputed facts.

[00:04:49] Speaker 03:
He doesn't dispute him.

[00:04:50] Speaker 03:
He admits them.

[00:04:51] Speaker 03:
So where are we?

[00:04:53] Speaker 03:
We have probable cause to arrest for the flight, so there can't be, by definition, malicious prosecution.

[00:05:00] Speaker 03:
There cannot be an illegal search.

[00:05:02] Speaker 02:
Why not?

[00:05:03] Speaker 02:
I mean, because when you arrest someone in a vehicle, you can search the vehicle if they're still able to grab something from the vehicle, which I don't think he was at this point.

[00:05:15] Speaker 02:
Or if you're looking for evidence of the crime of arrest right, but You're not going to find in the trunk evidence of failure to yield so what is the basis for?

[00:05:26] Speaker 02:
Search even if the arrest is valid inventory search under South Dakota versus Opperman

[00:05:32] Speaker 02:
But an inventory search is permissible when you're going to impound the vehicle right and as I read Section 22 651 of the vehicle code you can impound the vehicle if it's like blocking traffic or somewhere dangerous, but

[00:05:48] Speaker 02:
But this seems to have been a legal parking place on a residential street.

[00:05:54] Speaker 02:
So what's the basis for impoundment?

[00:05:57] Speaker 03:
Impoundment was because it was incident to arrest.

[00:05:59] Speaker 03:
You know, if the officers would have left it.

[00:06:02] Speaker 01:
But that's not the criteria for impoundment.

[00:06:08] Speaker 03:
If the officers would have left it there and something would have happened to it, then we'd be drawing a suit for failing to secure the vehicle.

[00:06:17] Speaker 02:
I mean, am I looking at the wrong statute?

[00:06:20] Speaker 02:
Because the statute, the version of the vehicle code I mentioned, talks about when impoundment is appropriate and does not seem to cover the case where you're parked in a legal space.

[00:06:32] Speaker 02:
You're not blocking traffic or anything.

[00:06:34] Speaker 04:
In front of your grandpa's house.

[00:06:36] Speaker 03:
Yeah, you're as far as we were concerned the issue that was always brief below is that this was a it was a search incident It was a search incident to an arrest and a pound and an impoundment following the arrest so with the district court seemed to

[00:06:51] Speaker 04:
disagree with you in that the district court said that it could go in either direction whether he was evading arrest or whether he didn't or whether he was resisting arrest or whether he didn't.

[00:07:05] Speaker 04:
Even the district court said there's two parts, two sides to this story and given the side of the story that the plaintiff tells, I can't give you summary judgment.

[00:07:18] Speaker 03:
That's where I think there's the fundamental problem here is I don't know how you can Take plans admissions and look at that video and say that there's no evidence of evading and not I'm talking about proof beyond a reasonable doubt I'm talking about suggesting that we could look at that video and and say that Because he stopped once, but he thought I'll stop instead in front of my grandpa's place That's evading absolutely

[00:07:48] Speaker 03:
When the cop pulls you over... That's your argument?

[00:07:50] Speaker 03:
Yes, sir.

[00:07:51] Speaker 03:
And before that as well.

[00:07:52] Speaker 03:
When a cop pulls you over, you don't get to decide, like, I'm going to wait and pull over three months more.

[00:07:58] Speaker 04:
Now, but just a minute.

[00:07:58] Speaker 04:
This isn't like he's going to drive across town.

[00:08:01] Speaker 04:
In Idaho, and I'm not sure because it's a totally different situation here, it would not seem unreasonable if you were down the road from your place to stop there instead of stopping

[00:08:17] Speaker 04:
where you first stopped.

[00:08:19] Speaker 04:
I'm trying to figure out how the jury would say that is absolutely, absolutely evading arrest.

[00:08:28] Speaker 04:
If he had kept running, if he kept going, if he'd gone for and if he tried to do other things but just to pull down the street to his grandpa's place,

[00:08:40] Speaker 04:
I'm putting the facts in his stead, not in yours.

[00:08:45] Speaker 04:
I realize the officers may have a different story.

[00:08:48] Speaker 04:
But I'm just saying what he says.

[00:08:50] Speaker 03:
Well, there's only one story here, which is that he admits that he did not pull over and that he failed to yield.

[00:08:55] Speaker 02:
Oh, I see.

[00:08:56] Speaker 02:
Is there any evidence in the record that an officer observing his behavior would have been aware that he was going to his grandfather's house?

[00:09:05] Speaker 03:
No.

[00:09:05] Speaker 03:
No, that was an unexpressed subjective intent.

[00:09:10] Speaker 01:
Is there any, and I don't know the answer to this, but is there a mens rea in failure to yield?

[00:09:17] Speaker 01:
Do you have to attempt to evade arrest?

[00:09:21] Speaker 03:
You know, as I sit here, I couldn't tell you whether that's a general intent or a specific intent.

[00:09:24] Speaker 01:
Well, if you do, obviously he didn't.

[00:09:26] Speaker 01:
I mean, he pulled off her.

[00:09:28] Speaker 03:
Well, I don't think that's true, Your Honor, because what he did do was he

[00:09:36] Speaker 03:
He did not pull over.

[00:09:38] Speaker 03:
He did not yield.

[00:09:39] Speaker 03:
He did not.

[00:09:40] Speaker 03:
He intended to not yield.

[00:09:41] Speaker 01:
For 47 seconds.

[00:09:43] Speaker 03:
I'm sorry?

[00:09:44] Speaker 01:
47 seconds.

[00:09:44] Speaker 03:
47 seconds.

[00:09:47] Speaker 01:
Between when he stopped the first time and when he got to his grandfather's house.

[00:09:50] Speaker 03:
Yes.

[00:09:51] Speaker 03:
Yes.

[00:09:52] Speaker 03:
And there was the initial evading as well.

[00:09:55] Speaker 01:
Is this one of the things that went through that, as to which there was a trial, anyone?

[00:10:01] Speaker 03:
Oh, and the criminal context?

[00:10:03] Speaker 03:
Yes.

[00:10:03] Speaker 03:
Yeah, I believe so.

[00:10:04] Speaker 01:
So doesn't that demonstrate that a jury could find otherwise because the jury did find otherwise?

[00:10:10] Speaker 03:
But we're not talking about proof beyond reasonable doubt.

[00:10:12] Speaker 03:
We're talking about probable cause.

[00:10:13] Speaker 03:
Did they have probable cause to arrest?

[00:10:15] Speaker 03:
Which is a much lower standard.

[00:10:16] Speaker 03:
You all know that.

[00:10:18] Speaker 03:
It triggers at a much lower rate.

[00:10:19] Speaker 03:
And that's all that the officers needed to justify the stop.

[00:10:24] Speaker 03:
I would like to talk a little bit about the deliberate indifference before we come back to this.

[00:10:29] Speaker 03:
Before we come back to the actual force for the meat is I'm running out of time here The undisputed facts show that he was transported to the hospital the hospital Documented that he refused treatment, and then he was taken back in book and the officers reasonably relied on that So he said and I'm looking at your 59 his deposition Question did you tell anyone at the hospital that you did not want any medical treatment answer no, so?

[00:10:58] Speaker 02:
Maybe if we look at the records, we would say, you know, maybe he's lying.

[00:11:03] Speaker 02:
But isn't that a factual dispute?

[00:11:06] Speaker 03:
It's not because I think what we have here is we have a qualified immunity.

[00:11:10] Speaker 03:
There's no specific case law which says that the police officers could not rely on the medical reporting.

[00:11:16] Speaker 01:
And that's what they didn't say.

[00:11:17] Speaker 01:
Do we know that they relied on the medical report?

[00:11:20] Speaker 03:
I'm sorry, Your Honor.

[00:11:20] Speaker 01:
Is there any evidence that they relied on the medical report as opposed to the fact that there later was a medical report?

[00:11:26] Speaker 03:
There's been no allegation that it was a lie in the medical report.

[00:11:31] Speaker 02:
I think the question is, is there any evidence that they had the report at the time?

[00:11:36] Speaker 02:
I mean, sometimes the report gets written up.

[00:11:37] Speaker 03:
The officers indicated that they took him back after they documented that it was refused.

[00:11:43] Speaker 01:
After who documented?

[00:11:46] Speaker 03:
The medical staff.

[00:11:48] Speaker 03:
So the officers reasonably relied on the medical staff.

[00:11:49] Speaker 01:
But the officers were there the whole time, right?

[00:11:52] Speaker 01:
I'm sorry?

[00:11:52] Speaker 01:
Weren't there officers with him?

[00:11:54] Speaker 03:
I can't speak to that.

[00:11:56] Speaker 02:
Where is that on the record that they said that they relied on the document?

[00:12:00] Speaker 03:
I was going to say, where is that on the record?

[00:12:01] Speaker 03:
I will get that for you in my intermeeting one minute here when we go back.

[00:12:06] Speaker 03:
But that's where there is no prior case authority talking about what the officers can and cannot rely on in terms of medical reporting.

[00:12:13] Speaker 04:
There's no question, however, that a government official cannot deny, delay, or intentionally interfere

[00:12:23] Speaker 04:
with medical treatment.

[00:12:26] Speaker 04:
That's absolute, right?

[00:12:28] Speaker 03:
That's correct.

[00:12:29] Speaker 04:
And you agree with that?

[00:12:30] Speaker 04:
I agree with that.

[00:12:31] Speaker 04:
And so if that's what we're looking at, which comes out of Sandoval, you think the very fact that the officers may have seen that the hospital wrote down that he denied treatment is enough?

[00:12:50] Speaker 03:
Yes, it is.

[00:12:52] Speaker 04:
I want to understand your argument.

[00:12:54] Speaker 03:
And there's no case law to the contrary.

[00:12:57] Speaker 03:
I asked to reserve two minutes.

[00:12:59] Speaker 03:
I'm at two minutes right now.

[00:13:00] Speaker 03:
All right.

[00:13:00] Speaker 03:
So I'm going to find you your case.

[00:13:02] Speaker 03:
All right.

[00:13:02] Speaker 03:
Thank you very much.

[00:13:06] Speaker 02:
Mr. Neal.

[00:13:15] Speaker 00:
Good morning, Nashaun Neal.

[00:13:16] Speaker 00:
May it please the court, Nashaun Neal, on behalf of appellee Ronnie Parham.

[00:13:21] Speaker 00:
I believe the panel nailed the beginning part of this argument.

[00:13:25] Speaker 00:
This appeal centers on whether this court has jurisdiction.

[00:13:28] Speaker 00:
To hear a challenge related to appellants being denied qualified immunity after violently beating a compliant Ronnie Parham.

[00:13:37] Speaker 00:
The district court actually made it very clear, looking at the video and the record, that

[00:13:45] Speaker 00:
It's reasonable in both directions for the plaintiff at the time or what the district court think of as Ronnie Parham or the officers.

[00:13:53] Speaker 00:
And that's very important when it comes to the question of a denial of a qualified immunity.

[00:13:59] Speaker 04:
In regards to the... Well, I'm not sure that the district court's ruling is something that has to stand.

[00:14:06] Speaker 04:
They're doing the same thing we're doing, right?

[00:14:08] Speaker 04:
They're just saying,

[00:14:10] Speaker 04:
Put all of the inferences in Parham's favor.

[00:14:13] Speaker 04:
Assume all the factual disputes are resolved in Parham's favor.

[00:14:18] Speaker 04:
Are they entitled to qualified immunity?

[00:14:20] Speaker 04:
And the district court said, I looked at the video, and I don't think they are.

[00:14:24] Speaker 04:
But you've got to respond to his argument.

[00:14:27] Speaker 04:
What about this idea of false arrest?

[00:14:30] Speaker 04:
He stops, and then he goes.

[00:14:33] Speaker 04:
What are you going to do with that?

[00:14:34] Speaker 00:
So the false arrest concern, it goes on to whether it's a probability.

[00:14:39] Speaker 00:
You may have asked earlier, the panel asked, was there a probable cause?

[00:14:45] Speaker 00:
And the question is whether it is a mens rea requirement for intent to evade.

[00:14:50] Speaker 00:
And that's vehicle code 2800.1.

[00:14:54] Speaker 00:
And that's important because

[00:14:55] Speaker 00:
Roddy Parham's testimony was he slowed down and he was nervous.

[00:15:00] Speaker 00:
He did not see the the lights flash and that's admitted was later on and then he was nervous because he hurt because of his friend who also was beaten by the West Covina Police Department So he wanted to make sure he was somewhere safe, which was only like a short drive about 40 seconds to his home

[00:15:18] Speaker 00:
And it's very important to say that.

[00:15:21] Speaker 02:
Yeah, I mean, so that, I think you're right.

[00:15:23] Speaker 02:
I mean, if credited, that negates intent.

[00:15:26] Speaker 02:
And evidently, the jury believed it.

[00:15:28] Speaker 02:
And I guess that's why he was found not guilty.

[00:15:30] Speaker 02:
But on the question of probable cause, it's undisputed that they turn on the lights, he pulls over, stops very briefly, and then resumes driving for another 45 seconds or so.

[00:15:43] Speaker 02:
Is that right?

[00:15:44] Speaker 00:
Yes, Your Honor.

[00:15:45] Speaker 02:
And so the officer observing that

[00:15:48] Speaker 02:
They have no idea why he's driving away.

[00:15:51] Speaker 02:
You don't think that just that behavior is enough to create at least probable cause that it might be because he has the intent to flee?

[00:15:59] Speaker 00:
No, Your Honor, because the slow pause, he did not speed up.

[00:16:03] Speaker 00:
He was very safely down a residential street.

[00:16:06] Speaker 00:
And as you see it, as you watch the video, immediately he stops and rolls down the windows.

[00:16:12] Speaker 00:
We can't hear any audio.

[00:16:14] Speaker 01:
And his hands are up, though.

[00:16:16] Speaker 01:
By the time they arrested him, he had already stopped 45 seconds later down the street.

[00:16:23] Speaker 01:
So they would have had to have probable cause at that point to think that he was refusing to yield.

[00:16:31] Speaker 01:
And in fact, there he was yielding at that point.

[00:16:35] Speaker 01:
So, I mean, in other words, isn't the whole story relevant to whether he failed to yield, not simply what happened at the point that he

[00:16:43] Speaker 01:
stopped and then kept going because they didn't arrest him then they arrested him later after he did stop.

[00:16:48] Speaker 00:
Yes, Your Honor, the whole story matters and that's the reason why it matters is because it's taking all of the circumstances account and it's important here is that I know that

[00:17:00] Speaker 00:
Criminal standards are different, but a jury looked at the same evidence and said there wasn't there was no crime that existed well And that's important to say that's reasonable.

[00:17:10] Speaker 04:
I understand, but if you'd focus on probable cause What is that the officers needed for the probable cause?

[00:17:19] Speaker 00:
At this point for the probable cause to arrest him for failure to yield was that he had to have intent to

[00:17:26] Speaker 00:
flee or elude the police.

[00:17:29] Speaker 04:
And when did he get arrested for this?

[00:17:32] Speaker 00:
After he got out the car and was panned up and stopped.

[00:17:36] Speaker 04:
So after he got to his, after he got to his grandpa's place.

[00:17:41] Speaker 04:
So that's why Judge Berzahn's question is pretty important.

[00:17:45] Speaker 04:
One can suggest

[00:17:49] Speaker 04:
that one doesn't have probable cause anywhere along the way, but it's where they have probable cause to issue these warrants.

[00:17:57] Speaker 04:
Isn't that what we're looking at?

[00:18:00] Speaker 01:
When they arrested him.

[00:18:01] Speaker 04:
Yes.

[00:18:02] Speaker 00:
So when you're looking at

[00:18:04] Speaker 00:
the probable cause analysis, the statute is very important here, is that they had the lights switched over.

[00:18:12] Speaker 00:
Rodney Parham states when he made the right, that's when he did that, that's when he slowed down.

[00:18:16] Speaker 00:
And then a few seconds later, he stopped.

[00:18:19] Speaker 00:
And that's not probable cause to say he was trying to evade with the intent to flee, because the video shows he's moving very slow, not going fast.

[00:18:29] Speaker 01:
And also the video shows that he did stop.

[00:18:31] Speaker 01:
before he was arrested, very shortly after the earlier thing.

[00:18:37] Speaker 00:
It was a brief pause, yes.

[00:18:39] Speaker 01:
So what about the medical issue?

[00:18:43] Speaker 01:
Is there anything in the record that suggests that the, as opposed to the, he, his, Parms says that it was the police, it was the officers who told the hospital that he didn't want treatment.

[00:18:59] Speaker 01:
But is there anything to demonstrate that

[00:19:02] Speaker 01:
They relied on a hospital generated note that he, that the officers relied on a hospital generated note that Parham didn't want treatment.

[00:19:10] Speaker 00:
No, there's nothing in the record as it relates to the offices relying on that record.

[00:19:15] Speaker 00:
There was no testimony of the medical personnel that said this is what they wrote and they have this.

[00:19:20] Speaker 00:
It's very important to note that Ronnie Parham says he was still in pain, the physical injuries were still there, and that he never received treatment.

[00:19:28] Speaker 00:
He was there for a long period of time and was never received treatment.

[00:19:32] Speaker 00:
And his facial injuries and his arm injury are very severe.

[00:19:37] Speaker 00:
So it's not something to say that

[00:19:39] Speaker 00:
It's his testimony that they interfered with him because he was not ready.

[00:19:43] Speaker 00:
He was sleeping or something.

[00:19:45] Speaker 00:
He was sleeping.

[00:19:46] Speaker 00:
He was sleeping.

[00:19:46] Speaker 00:
He was not refusing treatment.

[00:19:49] Speaker 00:
And so that's the point, is that the story could be believed either way.

[00:19:54] Speaker 00:
But on the qualified immunity analysis, it looks at the account from the non-moving party.

[00:20:03] Speaker 00:
And here is Parham.

[00:20:04] Speaker 00:
Parham said he did not.

[00:20:06] Speaker 00:
The officers interfered with him.

[00:20:09] Speaker 00:
It's up for the jury to make that decision on each place because the law is very clear at the time of that that if the officer was interfered with the medical treatment, that's a constitutional violation.

[00:20:22] Speaker 04:
And your colleague admitted to that.

[00:20:25] Speaker 04:
I guess the big deal was he was suggesting that because the hospital had said he refused treatment, it gave them enough reason to do what they had to do and that that's a different standard in that particular situation.

[00:20:40] Speaker 04:
I guess what you're arguing is that's just some evidence in his favor, that as far as you're concerned, Parham never denied treatment, period.

[00:20:49] Speaker 00:
And that is correct.

[00:20:51] Speaker 00:
Yes, that is my argument.

[00:20:52] Speaker 00:
And there's nothing in the record to say that there was a testimony that says he actually did so.

[00:20:58] Speaker 00:
It's both parties saying, no, I didn't.

[00:21:00] Speaker 00:
They're disputing it.

[00:21:01] Speaker 00:
So it's a he said, he said at this point.

[00:21:04] Speaker 00:
And in this case, when we're thinking about on appeal,

[00:21:06] Speaker 00:
the court saw it and said it's two ways and that's important.

[00:21:12] Speaker 00:
And then I want to also touch on, just to make sure as it relates to the probable cause and the fault, it's very important I believe that claims goes with

[00:21:20] Speaker 00:
the inventory search, even I want to make sure that the court's aware that defendants did not bring that issue up to the district court.

[00:21:29] Speaker 00:
So the concern about whether this was an inventory search has been waived by that party.

[00:21:33] Speaker 00:
And that's very important that they have to be respectful of the information that they did so.

[00:21:37] Speaker 01:
And this is not- What was the position at that point?

[00:21:39] Speaker 01:
Was there a search incident to arrest?

[00:21:42] Speaker 01:
Was that there?

[00:21:42] Speaker 00:
That was the only thing that was there.

[00:21:44] Speaker 00:
And they did not say it was towards an inventory search as it relates to it.

[00:21:48] Speaker 00:
And even if the court was to do so, there was a disputed fact there.

[00:21:52] Speaker 00:
Because the statute has a limited exception to impound the car and do the search.

[00:21:57] Speaker 00:
And it's under the caretaking function.

[00:22:00] Speaker 00:
Yes, that's true that left there, there would be a penchant for cause.

[00:22:04] Speaker 00:
But that's not the case in this fact.

[00:22:05] Speaker 00:
The fact shows his sister, Mr. Parham's sister, was outside and could have taken that car.

[00:22:11] Speaker 00:
So the concerns that the officers had about the community caretaking is not... But also, if you look at the video, they were searching the car.

[00:22:20] Speaker 01:
They weren't caring for it.

[00:22:25] Speaker 01:
They looked all over the car for something or other.

[00:22:30] Speaker 01:
And that's not what you ordinarily do in an inventory search.

[00:22:35] Speaker 01:
They weren't just trying to figure out what was in the car to record it.

[00:22:38] Speaker 01:
They were looking for something.

[00:22:42] Speaker 00:
And also I want to make a note is that if the court was ever to consider the excess of force concern, that some of the Graham analysis is also important, that appellants actually waived the argument.

[00:22:52] Speaker 00:
about whether the severity of the crime was at issue.

[00:22:56] Speaker 00:
And that's important because as you go through the Graham analysis and whether this thing is, if they waived it, they can't bring it up on appeal.

[00:23:04] Speaker 00:
So this court has to consider that the severity of the crime was low.

[00:23:08] Speaker 00:
So the concern of a felony evading is not something that could be considered, as well as the balancing test as it relates to the immediate threat to officers.

[00:23:16] Speaker 00:
based.

[00:23:18] Speaker 00:
It's very important there because looking at the facts you saw him not resisting and so the court's been very clear that non-trivial force such as kicking and to the head and punching to the head is considered intermediate force and you cannot use that and that's been as clear as day from the knife circuit since 2001 so the officers knew that they weren't able to do that and so that's important for the court's analysis if it was to see the excessive force but if there's no further questions for the panel

[00:23:47] Speaker 02:
Can I just have a one or two more questions on the on the false arrest question and so the To overcome qualified immunity you need to show not only that there wasn't probable cause But that no reasonable officer on these facts could have thought that there was probable cause right that's correct so I mean a is there case law that you can point us to that would say that you know coming to a stop and then driving away for 45 seconds and then coming to a second stop that that's

[00:24:16] Speaker 02:
That's just categorically that can't be probable cause of fleeing.

[00:24:24] Speaker 00:
I believe the law would look for it as Mackenzie versus Lamb is one of the cases of the Ninth Circuit that talked about that in the district court sided.

[00:24:32] Speaker 00:
And it's important to say that when you look at it, it's actually the video going back and forth to both points.

[00:24:39] Speaker 00:
I think that lets know at the time of the arrest, there was no probable cause for that evading.

[00:24:44] Speaker 00:
Because here was about a ticket.

[00:24:46] Speaker 00:
You're not arresting for a ticket in that same vein.

[00:24:48] Speaker 00:
And he showed a compliant officer, compliant

[00:24:52] Speaker 00:
assailant, his hands are out, he put his hand in the video which we can clearly see that he was compliant and that's important for that analysis.

[00:25:02] Speaker 04:
I have no other questions.

[00:25:03] Speaker 02:
All right, thank you.

[00:25:09] Speaker 02:
Rebuttal?

[00:25:11] Speaker 03:
I'll keep it brief since I'm limited to two minutes.

[00:25:13] Speaker 01:
I want to ask a question.

[00:25:15] Speaker 01:
You spent a lot of time in your brief arguing about Scott and the notion that the video was somehow informative.

[00:25:23] Speaker 01:
I gather you're giving up on that.

[00:25:25] Speaker 01:
I'm sorry.

[00:25:26] Speaker 01:
Your brief was basically directed at the argument that under Scott there was proof in the video, but you seem to be giving up on that.

[00:25:37] Speaker 03:
I'm not giving up on the argument.

[00:25:38] Speaker 03:
I was concentrating on another matter.

[00:25:39] Speaker 01:
Well, OK, so I don't want to hear it.

[00:25:44] Speaker 01:
I mean, we all looked at the video.

[00:25:46] Speaker 01:
I don't see either how you could get anything out of the video that answers the question.

[00:25:51] Speaker 01:
But if you think so, you might tell us why.

[00:25:53] Speaker 03:
Well, I think it does, but if you've watched the video, look, if you're having problems with the stop and the deliberate indifference, you're not going to find anything in the video that I can say right now that's going to change your mind today.

[00:26:07] Speaker 04:
Well, the only thing then that you're saying the video does is it showed that he does stop and then he does proceed to the next place.

[00:26:15] Speaker 03:
When I look at that video what I see is he is initially compliant after the second stop and then he attempts to stand up in rear back after the handcuffs are Imposed and that's what causes him to maybe you had a microscope and could see that but I couldn't see it I would like to mention the follow-up on something that I'm sorry with Judge Miller the judge

[00:26:39] Speaker 03:
Yes, the judge really indicated about the qualified immunity and that the two things that we're looking at was was the law clearly established with that sufficient degree of certainty and was the officers mistake if any was it reasonable and that's under white versus Pauline Davis versus share you know there I don't believe there's any.

[00:26:59] Speaker 03:
case law that would hold that an officer is not entitled to arrest for evading where someone stops, pulls over, and goes for 45 seconds if he subjectively wanted to go to his grandfather's house or had some other innocent explanation.

[00:27:14] Speaker 04:
Even when the arrest

[00:27:17] Speaker 04:
The warrant, all of that happened after he was stopped at his grandpa's house and after he got out of the car and now the officers are giving him an arrest warrant for things that happened.

[00:27:30] Speaker 04:
You're saying that is enough?

[00:27:34] Speaker 04:
Yes.

[00:27:36] Speaker 04:
Yes.

[00:27:37] Speaker 04:
And take his idea of what happened.

[00:27:39] Speaker 04:
I mean, that's the problem.

[00:27:41] Speaker 03:
I don't understand this notion of the evading was over once he stopped because all evading is over once they're apprehended or they get away.

[00:27:49] Speaker 03:
So I don't understand the court's concern about that.

[00:27:52] Speaker 01:
Well, but he wasn't stopped because the police chased him or anything.

[00:27:56] Speaker 01:
He drove over there and he stopped.

[00:27:59] Speaker 04:
Voluntarily stopped.

[00:28:02] Speaker 03:
He voluntarily stopped.

[00:28:03] Speaker 04:
At his grandpa's place.

[00:28:05] Speaker 04:
That's his argument.

[00:28:07] Speaker 04:
I'm not saying it's true.

[00:28:08] Speaker 04:
I'm just saying I've taken his argument.

[00:28:11] Speaker 04:
He wasn't evading arrest.

[00:28:13] Speaker 04:
He just grabbed his grandpa's house, got right out, did not attempt to resist arrest when he was being handcuffed.

[00:28:19] Speaker 04:
That's his argument.

[00:28:21] Speaker 03:
But you look at this through the point of view of the reasonable officer on scene who's forced to make those split-second calls.

[00:28:28] Speaker 03:
You don't look at this based on the other.

[00:28:30] Speaker 01:
By the way, is there any evidence in this record that they knew who he was?

[00:28:34] Speaker 01:
I mean, they had any prior contact with this person?

[00:28:37] Speaker 03:
No, not that I'm aware of.

[00:28:39] Speaker 03:
Not that I'm aware of.

[00:28:40] Speaker 02:
I believe you were going to give us something about the hospital.

[00:28:46] Speaker 02:
And then where the evidence?

[00:28:50] Speaker 03:
I did, but we get hung up here.

[00:28:51] Speaker 03:
I think it is that same notion that there's no indication, there's no case law that says that they cannot rely.

[00:28:59] Speaker 01:
But the question is where is the evidence in the record?

[00:29:02] Speaker 03:
I did say that and I was caught up.

[00:29:05] Speaker 03:
Responding okay, so I would have to submit a letter after we can review the record All right.

[00:29:12] Speaker 02:
Thank you.

[00:29:12] Speaker 02:
Thank you.

[00:29:13] Speaker 02:
Thank both sides for the arguments and the case is submitted