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

[00:00:03] Speaker 01:
May it please the court?

[00:00:04] Speaker 01:
My name is Noah Blackman.

[00:00:05] Speaker 01:
I represent the three officers, officers Miller, Suozo, and Tran in this case, as well as the city of Hayward.

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I'd like to reserve three minutes for rebuttal, please.

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Justice Holmes, in 1921, Supreme Court Justice said, detached reflection cannot be demanded in the presence of an uplifted knife.

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In this case, the knife was Mr. Smith using his vehicle essentially as a deadly

[00:00:32] Speaker 01:
weapon towards officers.

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What makes this case also different, Your Honors, is that it was potential that anybody in this vehicle could have had a firearm, and in fact, a firearm was found after the fact.

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That makes it different than many of the cases cited by the appellees in this case, as well as Judge Gonzalez-Rodgers, who leaned on the Orne case.

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So we know it's undisputed.

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There were several

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violent crimes, including armed home invasion robbery, led to this detention.

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The officers attempted this vehicle containment technique.

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And we know that Mr. Smith tried to flee.

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It's conceded and admitted by plaintiff's counsel he tried to escape, including two different times.

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But when we view this incident like the court needs to do from the perspective of a reasonable officer, we know that the escape was entirely reckless and dangerous.

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We have several officers in around their vehicles, et cetera, et cetera.

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We know there was actually actual threat because two of the officers suffered injuries.

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Officer Suozo was admitted to the hospital.

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But the standard is not whether there was an actual threat in this case.

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As we know from the Sabi case, the issue is whether the

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Hayward Police Department officers could reasonably have believed that he posed such a threat.

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So it's actually a lesser standard.

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And also, we're talking about probable cause.

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Officers can use deadly force when there's probable cause, essentially a fair probability to believe that this gentleman, Mr. Smith, posed a risk of serious danger or death to these officers.

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So, Counsel, because of the unique

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procedural posture of this case.

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We can't redo summary judgment here.

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So we're on this unique thing where summary judgment was denied.

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The reason why we have jurisdiction is because you're arguing the officers were entitled to qualified immunity as a matter of law.

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So at this stage, we have to take the facts as the plaintiffs would portray them.

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and then analyze those facts to see whether or not the case law put your clients on notice that they would be committing a Fourth Amendment violation.

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So they're going to say, which is why I'm asking you now so you have a chance to respond, they're going to say, look, under our versions of the facts, the car was not threatening the officers.

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And cases like Orrin say if the car is not threatening the officers, they can't use deadly force.

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And they're going to say, that's the end of this case.

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At this stage, now, maybe you go to trial and it's a whole different thing happens.

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But let's assume they're right that that's our analysis we have to do right now.

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What's your response to that?

[00:03:22] Speaker 01:
Well, first of all, Your Honor, yes, this is a, we're making legal arguments here.

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And the court, just like the district court did, the district court ruled substantively, obviously, on the qualified immunity issue, just like your honors can do.

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So when you, we're talking about legal issues here, we're talking about

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The court looking at, essentially, you can look at the video evidence, the animation evidence.

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The plaintiffs or the appellees, they did not object to the animation evidence as part of the motion for summary judgment.

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And it's very consistent with the video.

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That's why there's animations that are some of the exhibits in the record.

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There's actually the videos composed with the animation so the court can see all that.

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But, Your Honor,

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It's undisputed he was a threat, and here's why.

[00:04:07] Speaker 01:
We can see that the Volvo was, okay, first of all, let's back up, because we're not talking about just analyzing the final six seconds of this, okay?

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We're talking about all these facts that led up to this detention, danger, serious crime.

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And I agree with all that.

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You're absolutely right.

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You can't look at it just at that split second.

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But again, because we have this odd procedural posture,

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we can't just redo some re-judgment.

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And so we have to say, our analysis is, OK, for us to even have jurisdiction in this case, we have to conclude that under the plainest versions of the facts, that the officers were on notice, or there wasn't a constitutional violation, even under their version of the facts.

[00:04:51] Speaker 00:
Now, their version of the facts are the officers were not in danger by this vehicle.

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So what do we do in this situation?

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Well, their version of facts, Your Honor, respectfully, has to be based on evidence in the record.

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And so it has to be based on essentially some factual recitation from evidence, a declaration, or looking at the video.

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So we know that from Scott V. Harris that reasonable inferences can be considered, but only as supported by the record.

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I think Scott versus Harris is a case I sometimes wonder if the Supreme Court could give us a little more clarity on what we can look at from it.

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But I agree we can look at the video.

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Scott versus Harris tells us that.

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So when we look at the video, what is it in the video that makes it so clear that their version of the facts is wrong?

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Essentially, this incident is essentially undisputed when you look at the video evidence, and here's why.

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We know the vehicle when it was first attempted to be contained or boxed in, essentially, that the first officer, Tran, he's got his emergency lights on.

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That's undisputed.

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He comes up.

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He tries to pin it in.

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The vehicle tries to escape at that point, hits both vehicles, essentially, stops.

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Then the vehicle backs up, OK?

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So now we're at sort of the tail end of this incident.

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So there's many different options for Mr. Smith at this point.

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He could put his hands up like the officers are ordering.

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He could put the car in drive.

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He can turn the vehicle off.

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If he wanted to escape without threatening the officers, could easily open the driver's side door and ran on foot.

[00:06:29] Speaker 01:
He doesn't do any of those things.

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He backs up about 12 feet, almost hitting the motel.

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So now he has more room essentially to

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threaten the officers, if that's what he wants to do, and that's exactly what he does.

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We can hear the acceleration.

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He starts coming forward.

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There's no dispute in the record, and I can point out specifically to your honors.

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He starts coming forward, and then the officers have to fire because we have Officer Suozo, who's in the middle.

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He basically is directly at threat.

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We have Officer Tran, who's in the driver's side of the vehicle to the right.

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So your point is that it's undisputed that he started accelerating before the officers fired.

[00:07:10] Speaker 01:
That's correct, your honor.

[00:07:11] Speaker 02:
And I think that's consistent with what the district court found, right?

[00:07:15] Speaker 01:
That is, I believe, consistent with what the district court found.

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But the plaintiffs, again, without evidence, they argue that the shots come before he starts going forward.

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We did provide exhibit M6, which is one of our exhibits,

[00:07:33] Speaker 02:
But the district court says, as the Volvo accelerated, the officers opened fire, shooting seven times.

[00:07:39] Speaker 02:
So to me, that reads that he accelerated and then they shot.

[00:07:44] Speaker 01:
Yes, and I agree.

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That's exactly what we see in the record.

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The reason I'm pointing this out, the bottom left-hand corner, which their expert does not provide in their

[00:07:51] Speaker 01:
Matrix you can see the back of the vehicle close and then you see the vehicle going forward and then you hear the shots so now we have a Individual who may be armed other individuals may be armed and now he's moving this vehicle forward accelerating in close proximity to officers on foot If I could just jump in just to help me remember so you have There there's there's an officer who fires that kind of the final shot and

[00:08:15] Speaker 01:
Yes.

[00:08:16] Speaker 01:
Officer Miller.

[00:08:17] Speaker 00:
Miller.

[00:08:17] Speaker 00:
Okay.

[00:08:17] Speaker 00:
That can you, I just want to keep, make sure I knew.

[00:08:20] Speaker 01:
So we have a 28.6 second incident, essentially.

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Right.

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Um, we know that it's undisputed when the vehicle starts coming forward is the last 6.6 seconds.

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Officers are trying to analyze quickly in milliseconds what's happening.

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Why is this vehicle coming forward?

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Are there other officers in danger?

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And then we have the 3.1 seconds of gunfire, which stops the vehicle incapacitates the driver.

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Now, we know that the courts are not supposed to be, you know, analyzing and scrutinizing an officer's every minor move in a frantic and chaotic situation as if we're examining the Zabruder film.

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That's from this court in the Hyde case.

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So, and we also know recently from the Supreme Court, Justice Kavanaugh's concurring opinion in the Barnes case, the great dangers involving traffic stops here.

[00:09:14] Speaker 01:
I think when the court looks at the key cases, not only is it not clearly established that these officers, you know, did not violate constitutional law, but in fact, the cases say that what they did was totally lawful in this kind of a situation.

[00:09:31] Speaker 01:
The Plumhoff case from the Supreme Court, it's definitely not directly on point, but some of the key tenants from that, but one of the Supreme Court cases that is on point, the Brasso case from 2004,

[00:09:43] Speaker 01:
We have a vehicle that's just starting to flee.

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The officer's afraid it's going to run into some other officers on foot.

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There's also a couple citizens in some occupied cars.

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That was deemed under the second prong to be not in violation of clearly established law.

[00:10:00] Speaker 01:
I think there's several other cases that are very close to this case.

[00:10:04] Speaker 01:
The Wilkinson case and the Monzon case, both from this court,

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Wilkinson was very close to our fact pattern where we have this vehicle after it gets sort of stuck in the mud, an officer falls down.

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The other officer believes that officer could be injured or in harm's way as the vehicle is now trying to get out of there.

[00:10:25] Speaker 01:
And even though the car is not significantly moving at that point, the court said, this court said, the car could have gained traction at any time resulting in sudden acceleration in speed.

[00:10:37] Speaker 01:
We have similar issues.

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in the Monzon case, where the court found it was lawful and under the second prong as well, did not violate clearly established law.

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And in that case, there was even a longer time period.

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There was about two minutes after this vehicle made its turn, the officers were on foot.

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There was also four or five volleys in those last few minutes that led to this individual being, I believe, killed.

[00:11:07] Speaker 01:
So officers in the Monzon case had a lot more time to figure out what they could do, can they get out of the way.

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The court said that that shooting was lawful under both the first prong, under the Fourth Amendment, and or did not violate clearly established law.

[00:11:26] Speaker 01:
So I think those cases, and then we recently have the Williams case, which I understand, you know, it's a 2024 case, but the key tenants from that case as well, another situation where we have

[00:11:38] Speaker 01:
a dangerously driven vehicle in close proximity to officers, again, it's reasonable that an officer, without the benefit of hindsight, might fear that William's truck would gain traction at any moment.

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In our case here, it's undisputed that the officers not only start firing when the vehicle starts coming forward, but really the gunshots

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essentially incapacitate the driver, which leads to the vehicle stopping.

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And why that's important is we don't know what would have happened if these officers missed or didn't incapacitate the driver or did not fire.

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What we know from the record here is that that vehicle, Mr. Smith's Volvo, impacts the police vehicles, moves them back at least a foot each.

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And if you kept on accelerating, let's say the gunfire didn't happen,

[00:12:30] Speaker 01:
He would have likely pushed the vehicles apart.

[00:12:32] Speaker 01:
He only needed another six inches, and he was now driving between the vehicles where essentially Officer Suozo was and Officer Tran was nearby in his doorway there.

[00:12:41] Speaker 01:
So I know I'm pressed for time.

[00:12:43] Speaker 01:
I feel strongly I can distinguish the cases that the plaintiff leans on.

[00:12:48] Speaker 01:
The district court leaned on Orrin.

[00:12:49] Speaker 01:
That's highly distinguishable, and I could talk about that in my rebuttal.

[00:12:53] Speaker 01:
Very good.

[00:12:53] Speaker 00:
We'll reserve.

[00:12:53] Speaker 00:
Give him two and a half for rebuttal.

[00:12:55] Speaker 01:
Thank you, counsel.

[00:12:56] Speaker 01:
Thank you.

[00:13:10] Speaker 03:
Good morning.

[00:13:11] Speaker 03:
May it please the court, Pat Blama for the plaintiff appellee.

[00:13:16] Speaker 03:
What cannot be lost on this case is that it's been held for decades now that officers can't fire into a car just because it's slowly moving if it's not a threat.

[00:13:28] Speaker 03:
And that's what we saw in Orne.

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We saw that all the way back in Acosta and Villanueva.

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And what counsel is failing to address here is that we don't even know what the officers actually believe at summary judgment.

[00:13:42] Speaker 03:
They refuse to testify at deposition.

[00:13:44] Speaker 03:
The court held that- It's kind of an objective inquiry, so it doesn't matter.

[00:13:48] Speaker 03:
I think, well, I think it adds facts or could substitute facts.

[00:13:52] Speaker 03:
If the defendants

[00:13:53] Speaker 03:
or appellants are relying on those facts about what the officers testify, then it does matter if that's what the courts can consider.

[00:14:00] Speaker 03:
But if we all agree that their statements can't be used because it's an objective inquiry, then all we have is the video.

[00:14:05] Speaker 03:
And what we see on the video, which is an officer, and I think the facts were kind of misstated here.

[00:14:12] Speaker 03:
One officer comes, tries to pin in the car.

[00:14:16] Speaker 03:
He leaves open a space, even though he was supposed to wait for his fellow officer.

[00:14:21] Speaker 02:
Sorry, we've seen the video.

[00:14:24] Speaker 02:
Are we allowed to take in the animation video?

[00:14:26] Speaker 02:
Are you denying, are you objecting to the use of that in the summary judgment?

[00:14:31] Speaker 03:
Not to the animation in itself, but the conclusions that were drawn from it, I do object to.

[00:14:37] Speaker 03:
And this is why, Your Honor, it's because it said there was six feet of space left before the car could get out.

[00:14:43] Speaker 03:
But there was no methodology or explanation why that's true.

[00:14:46] Speaker 03:
No velocity of the car, no consider, even though the weights of the cars were provided, which the two SUVs were twice the weight of the Volvo, no explanation.

[00:14:54] Speaker 02:
Yeah, I know.

[00:14:55] Speaker 02:
I understand all that.

[00:14:55] Speaker 02:
That makes sense.

[00:14:56] Speaker 02:
Do you dispute, though, that the Volvo was accelerating before the officers fired?

[00:15:02] Speaker 03:
I do, Your Honor.

[00:15:02] Speaker 03:
Actually, if you look closely at the video, and we provided a synchronized one, you can even use the defendant's one.

[00:15:09] Speaker 03:
If you watch, if I could just go through the sequence real quick so that we're clear.

[00:15:12] Speaker 03:
So one car goes in, right, and it's important.

[00:15:15] Speaker 03:
So one car goes in, and that's Tran's car, to do the initial stop.

[00:15:19] Speaker 03:
He tries to go around, slows his car, comes, and he hits him.

[00:15:24] Speaker 03:
Then the reverse happens, and then Tran, this is important, then Tran goes forward, closing the distance, right?

[00:15:30] Speaker 03:
Now you can see the, when Tran is driving, you can see him move his stick shift.

[00:15:35] Speaker 03:
At the very top is park, at the very, and then there's reverse and drive at the bottom, okay?

[00:15:42] Speaker 03:
Once he's blocked in, right, so he's reversed, Tran blocks him in, he puts it in park.

[00:15:48] Speaker 03:
And then he steps out and starts giving orders.

[00:15:50] Speaker 03:
Then he gets back in his car and he puts it down to reverse.

[00:15:54] Speaker 03:
Maybe it's drive, maybe it's reverse.

[00:15:55] Speaker 03:
It looks like reverse to me because his rear lights come on.

[00:15:58] Speaker 03:
And then he starts going backwards and then the car starts moving forward.

[00:16:02] Speaker 03:
And that is when Officer Miller fires that first shot.

[00:16:07] Speaker 03:
Then after that first shot, you hear the engine rev, and it goes quicker.

[00:16:11] Speaker 02:
But he's moving forward before the shot is fired.

[00:16:15] Speaker 03:
Slowly.

[00:16:16] Speaker 02:
OK, so you admit that he is moving forward before the first shot was fired.

[00:16:22] Speaker 02:
To me, that's the key.

[00:16:25] Speaker 02:
If he's accelerated, he's moving forward, that's a threatening posture.

[00:16:29] Speaker 02:
versus, you know, you're not.

[00:16:33] Speaker 03:
May I address that?

[00:16:34] Speaker 02:
Yeah.

[00:16:35] Speaker 03:
OK, great.

[00:16:36] Speaker 03:
So Orin, in that same case in Orin, they talked about acceleration.

[00:16:40] Speaker 03:
They said the acceleration only came after.

[00:16:42] Speaker 02:
Yeah, but I mean, I think he was not in the line of sight of an Orin.

[00:16:45] Speaker 02:
He was on the side of the car, right?

[00:16:47] Speaker 02:
Which is where, well, they were.

[00:16:48] Speaker 02:
They were all on the side.

[00:16:50] Speaker 02:
I mean, I think the body cameras show that.

[00:16:54] Speaker 03:
Well, no.

[00:16:54] Speaker 03:
So when he accelerated, he hit the car, Suozo's car, right?

[00:16:58] Speaker 03:
Which car?

[00:16:58] Speaker 03:
So Tram is sitting in his car, right?

[00:17:01] Speaker 03:
So he's not in danger, right?

[00:17:02] Speaker 03:
Well, I don't know.

[00:17:03] Speaker 03:
He drives by his car, right?

[00:17:05] Speaker 03:
And then we look at Miller.

[00:17:07] Speaker 03:
Miller's on the opposite side.

[00:17:09] Speaker 03:
And then for Suozo even, let's say you think, oh, this car is a threat.

[00:17:13] Speaker 03:
So Suozo is at his A pillar.

[00:17:16] Speaker 03:
And then as he fires, he steps into the gap.

[00:17:18] Speaker 03:
If he thinks that there's some

[00:17:21] Speaker 03:
Possibly away from the car don't you agree?

[00:17:24] Speaker 03:
Sorry, sorry go ahead if there's some possibility that car makes it through the gap even if he's going back You don't step into the gap running backwards.

[00:17:30] Speaker 03:
You can't outrun or back out back pedal a car Why do you fire and step into the gap that's insane?

[00:17:36] Speaker 03:
You're putting yourself?

[00:17:37] Speaker 03:
I've never seen any pedestrian do that see a car coming and step in front of it that I mean the other interpretation is getting out of the way of the car because it's hitting him his his

[00:17:47] Speaker 02:
The car is accelerating towards him.

[00:17:49] Speaker 02:
The door almost hits him, I think.

[00:17:52] Speaker 03:
So that would be an interpretation you'd have to take in my favor because of your judgment.

[00:17:57] Speaker 02:
I'm not taking that interpretation.

[00:17:58] Speaker 02:
To me, the key point is you agree that the car was moving forward before the shot was fired.

[00:18:04] Speaker 03:
I agree because, one might think, it's because the officer, Tran, he reverses.

[00:18:13] Speaker 03:
Letting the suspect out and as a suspect drives in concordance with that one officer inexplicably shot into the car.

[00:18:24] Speaker 00:
So if I could ask about the shots because I mean again I'm not trying this case you're going to be hopefully if we agree with you you would be trying this case but there are three officers involved.

[00:18:34] Speaker 00:
And two of the officer shots, to me, seem a lot more understandable than the third.

[00:18:40] Speaker 00:
There's a third last shot.

[00:18:42] Speaker 00:
Is that by Officer Miller?

[00:18:44] Speaker 03:
That's by Officer Miller, who was the one that first shot first.

[00:18:47] Speaker 03:
And he's the one that shot after the engine stops and fires.

[00:18:50] Speaker 03:
Correct.

[00:18:51] Speaker 00:
So it seems to me that, and again, I'm just making sure, it seems to me we have different, there are multiple defendants in this case.

[00:18:59] Speaker 00:
And it seems to me that the case against Miller

[00:19:02] Speaker 00:
is in some respects different than the case against Tran and Suozo.

[00:19:07] Speaker 00:
Because they're going to say, look, the other shots, the car was moving and all that.

[00:19:11] Speaker 00:
But for your case, the shot that Miller took at the very, very end when the car's stopped, there's a beat, then he steps out from outside that door and shoots again.

[00:19:24] Speaker 00:
So in your case, is your theory that

[00:19:28] Speaker 00:
Again, we haven't talked about this case, but if for some reason there's no case against Tran and Suozo, I assume you're saying the Miller shooting is different, that last shot.

[00:19:39] Speaker 03:
I would say it's absolutely different because all the two other officers stop firing.

[00:19:44] Speaker 03:
You can hear the engine and accelerator stop, the car stop, and then he seems to regain his balance and then looks over the top of the hood and assesses.

[00:19:54] Speaker 03:
which they required to do and then takes a shot.

[00:19:58] Speaker 03:
So I think his case, and I also think that his initial shot is incorrect too.

[00:20:02] Speaker 03:
None of the other officers fire.

[00:20:04] Speaker 03:
He fires when the car is moving slowly.

[00:20:07] Speaker 03:
And so I think that is a different, I think it's different in kind than the other two officers.

[00:20:13] Speaker 03:
I just still think that officer.

[00:20:15] Speaker 00:
No, I understand.

[00:20:16] Speaker 00:
I'm not asking you to concede anything.

[00:20:18] Speaker 00:
But as we're analyzing this case, it seems to me there's the whole question of,

[00:20:21] Speaker 00:
Was the car accelerating, not accelerating?

[00:20:24] Speaker 00:
That applies to that analysis.

[00:20:26] Speaker 00:
Regardless of who wins, I don't see that applying to the last shot that Miller took.

[00:20:31] Speaker 03:
Agreed.

[00:20:31] Speaker 03:
It's an undisputed fact, because it's on the video, that the engine has stopped, the car has stopped.

[00:20:37] Speaker 03:
There's, as your honor described, a beep.

[00:20:40] Speaker 03:
And then you hear this pop.

[00:20:42] Speaker 03:
Yep.

[00:20:43] Speaker 03:
And that, to me, is a clear amount of time that Officer Miller could have or did assess and reassess.

[00:20:51] Speaker 03:
not taking into account his statement, which was very different, I would just note, than what occurred.

[00:20:59] Speaker 03:
He said the car struck his car four times.

[00:21:02] Speaker 03:
That absolutely did not happen.

[00:21:04] Speaker 03:
So I mean, he's just a different officer in some respects.

[00:21:07] Speaker 02:
Can I ask your theory of why you think the car accelerated after the shots were fired?

[00:21:13] Speaker 03:
Because if you, so after the first shot of fire, so if you watch closely the synchronization and the movement of Tran going into shifting his gear shift, you can see the white smoke from Miller's as that car is starting to move, and then you hear the loud like vroom.

[00:21:35] Speaker 03:
right after that white smoke goes.

[00:21:36] Speaker 02:
Yeah, so is your theory that he was shot and like it was an involuntary reaction or something?

[00:21:40] Speaker 03:
No, I think Miller shot that freaked out the driver, as you can imagine, and then he jammed the pedal.

[00:21:46] Speaker 03:
I see.

[00:21:48] Speaker 03:
So I think it's a reasonable interpretation of that sequence of events that a jury could decide one way or another on.

[00:21:55] Speaker 03:
And going back to some of the case law, I think that is often brought up in these driving cases that I think

[00:22:03] Speaker 03:
the council cited against us.

[00:22:05] Speaker 03:
I would just note that the sequence of events that occurred prior in, let's say, for example, Scotty Harris, Monzone, and Wilkinson, all of those in Plumoff, too, all of those involved high-speed chases before the shots fired.

[00:22:24] Speaker 03:
So, for example, in... Why is that relevant?

[00:22:28] Speaker 03:
The reason why it's relevant is because this court repeatedly has said

[00:22:32] Speaker 03:
And I'll just quote, to warrant the use of deadly force, a motorist's prior interactions with police must have demonstrated that he was either willing to injure an officer that got in the way of escape or is willing to persist in extremely reckless behavior that threatened the lives of those around.

[00:22:48] Speaker 03:
And here, if you're driving, for example, through congested streets in LA and nearly hitting pedestrians, shows it's a danger to other people.

[00:22:57] Speaker 02:
But he was engaged in armed robbery, right?

[00:23:00] Speaker 03:
First of all, they don't even have an actual suspect.

[00:23:03] Speaker 03:
They just think that this Volvo could be involved.

[00:23:06] Speaker 03:
And just notably, if you watch the video, one of the quote unquote suspects is standing next to the car.

[00:23:12] Speaker 03:
They just let that suspect walk away.

[00:23:15] Speaker 03:
Like they're getting into the car, the car pulls up to detain them, and they cop out.

[00:23:20] Speaker 03:
There's not everyone's got in the car.

[00:23:21] Speaker 03:
That one suspect that apparently could be armed, they just let them walk away during the detention.

[00:23:26] Speaker 03:
So they just knew that that car was involved.

[00:23:29] Speaker 03:
They didn't know who was in any of those crimes.

[00:23:32] Speaker 02:
But they reasonably felt that it's possible he could be armed because he's engaged in armed robberies before.

[00:23:38] Speaker 03:
And well, no, they don't know who that is.

[00:23:40] Speaker 03:
The person, the car was engaged.

[00:23:42] Speaker 03:
They don't know what suspect's in there.

[00:23:43] Speaker 03:
Any car stop could be armed.

[00:23:45] Speaker 03:
I mean, it doesn't mean you get to pull out your gun and pull over everybody making a wrong left turn.

[00:23:54] Speaker 00:
There are a lot of things in hindsight that they could use strike strips and put them in front of the tires so the car, there's all kinds of things that could be done.

[00:24:01] Speaker 00:
And hopefully, Oakland and Alameda County

[00:24:04] Speaker 00:
Law enforcement can watch this and see that if you want to mobilize a car there are ways other than boxing it in.

[00:24:10] Speaker 00:
But for our purposes today we're just focusing really on the shooting.

[00:24:15] Speaker 00:
I don't think we can take into, you know, the officers could have laid a strike strip or something like that.

[00:24:19] Speaker 00:
We're just, we... Agreed.

[00:24:21] Speaker 00:
We would have, could have, should have, but for our case it's really about at this stage

[00:24:27] Speaker 00:
Does the video so objectively show that your version of the fact is wrong?

[00:24:32] Speaker 00:
I mean, really, that's what our case, what we're doing today, isn't it?

[00:24:35] Speaker 03:
Absolutely.

[00:24:35] Speaker 03:
And also, I think if you just look, you'd see the car is absolutely blocked in.

[00:24:39] Speaker 03:
I mean, the highest speed he ever gets to is when he initially tries to get away, and so the car blocks him, and he doesn't manage to go any further.

[00:24:50] Speaker 03:
The only reason that the trans car moves at all is because he puts it in reverse, and you can just watch the tape.

[00:24:54] Speaker 03:
That's the only reason it moves.

[00:24:56] Speaker 03:
So basically, the facts that we have is a car is boxed in by two cars that are twice its weight.

[00:25:06] Speaker 03:
And one officer shoots it while the other officer seems to be letting that car out or giving it room.

[00:25:12] Speaker 03:
I'm not sure what, because he refused to testify.

[00:25:15] Speaker 03:
And I would just note for the court that the Fifth Amendment

[00:25:20] Speaker 03:
Basis for which they weren't testifying is not over so they are they Presumably would now be able to testify or were willing to testify so Should be able to depose these officers

[00:25:32] Speaker 00:
So you're saying it's over, what do you mean by that?

[00:25:36] Speaker 03:
Sorry, the underlying reason why these officers refused to testify was because they said the DA had reopened an investigation into whether or not they committed... Is it because they have a new DA and... Now the new DA came in and said, hey, we're affirming the prior DA's resolution of that.

[00:25:53] Speaker 03:
So now presumably the reason why all the officers could not testify making

[00:25:59] Speaker 03:
moot uh... dismissed miss price is no longer the d a correct and now we have a new day i thought forgive me i forget them that's right i think that's politics is interesting in that part of the day every day uh... and so if the justice don't have any further questions are thank you counsel few final points your honors uh... number one

[00:26:29] Speaker 01:
Kelly's counsel is totally misrepresenting this reverse lights issue.

[00:26:32] Speaker 01:
We put that in our papers.

[00:26:35] Speaker 01:
He freeze framed a picture of Tran's vehicle, and actually it's the emergency lights flashing.

[00:26:41] Speaker 01:
And you see that if you look at the video, you can see Tran's car actually reverses afterwards.

[00:26:46] Speaker 01:
And so that is totally a misrepresentation.

[00:26:49] Speaker 01:
He does concede that the car is moving forward at the time of the gunshots.

[00:26:55] Speaker 01:
When you look at these other

[00:26:57] Speaker 01:
cases, especially the Orne case.

[00:26:59] Speaker 01:
Orne, this gentleman driving without his headlights, he's actually fleeing at a slow speed, stopping at traffic lights, stopping at stop signs.

[00:27:08] Speaker 01:
All the evidence shows, and there's no video in that one either, but all the evidence showed he was trying to drive away from officers.

[00:27:14] Speaker 01:
And when he hit an officer's car, it was slight and accidental.

[00:27:18] Speaker 01:
Also, the key factual dispute on Orne was that

[00:27:21] Speaker 01:
His vehicle revved and accelerated only after the first shots fired, different than with Mr. Smith here, who accelerated before the gunshots.

[00:27:30] Speaker 01:
Also, we have the threat of a firearm issue in our case.

[00:27:33] Speaker 01:
That's not in any other case, and that's a real threat.

[00:27:37] Speaker 01:
And we did have the firearm found in the vehicle, and that's in the record, okay?

[00:27:41] Speaker 01:
That was in the front passenger seat floor.

[00:27:44] Speaker 01:
So Orne cannot stand as clearly established law.

[00:27:48] Speaker 01:
The Acosta case is totally different,

[00:27:51] Speaker 01:
That case went to trial, and the evidence showed the officers could have stepped aside on that slow-moving purse-snatching incident.

[00:28:00] Speaker 01:
There's no video in that one.

[00:28:02] Speaker 01:
Judge Gould was involved in the Gonzalez case.

[00:28:05] Speaker 01:
Totally different.

[00:28:05] Speaker 01:
That's when this officer was trapped inside of the vehicle.

[00:28:08] Speaker 01:
That cannot stand for a clearly established law.

[00:28:11] Speaker 01:
Villanueva was a different, another case that's easily distinguished.

[00:28:16] Speaker 01:
This gentleman turns in his vehicle.

[00:28:18] Speaker 01:
It's not a reckless turn.

[00:28:19] Speaker 01:
doesn't crash into any other car.

[00:28:21] Speaker 01:
Actually, in that case, the court confirmed that deadly force against stopped or slowly moving vehicles reasonable when the driver's trying to evade arrest in an aggressive manner involving attempted or actual acceleration, all of which we have here.

[00:28:35] Speaker 01:
The final issue, Your Honor, that you raised is Officer Miller's last shot.

[00:28:41] Speaker 01:
If you look at the evidence, that shot comes

[00:28:44] Speaker 01:
1.2 seconds after the shot before, which was Suozo's last shot.

[00:28:50] Speaker 01:
And if you look at the videos, the reason it takes little time for him to make that last shot is he gets hit by the door on the driver's side from the impact of Mr. Smith.

[00:29:00] Speaker 01:
So he's no longer in the doorway V, so he has to go around the car, get around the closed window of the police car, and then he makes his final shot.

[00:29:09] Speaker 01:
And yes, the Smith vehicle may have been stopped momentarily at that point, but we're talking about milliseconds.

[00:29:17] Speaker 01:
And the final point, and Judge Bumatai, you say this in your dissent in the estate of Hernandez case, that we can't ignore that this stuff happens in real life.

[00:29:27] Speaker 01:
This is not slow motion and we can't really deny qualified immunity when we're breaking down these things into milliseconds.

[00:29:35] Speaker 01:
So I think the court has a real opportunity here to rule on the first prong, finding that this is lawful to provide guidance towards officers at a minimum qualified immunity.

[00:29:46] Speaker 01:
The second prong for breathing room for officers in similar situations.

[00:29:50] Speaker 01:
Thank you very much.

[00:29:51] Speaker 00:
All right, thank you, counsel.

[00:29:51] Speaker 00:
Thanks to all three of you, I'll say, for your briefing and argument today.

[00:29:55] Speaker 00:
Much appreciated.

[00:29:57] Speaker 00:
This case is submitted, and this particular panel is done.

[00:30:01] Speaker 00:
Judge Boutontini and I will be back tomorrow at 9 o'clock.

[00:30:03] Speaker 00:
Thank you.

[00:30:05] Speaker 02:
All rise.