[00:00:02] Speaker 04: We'll move on to our third argument set for today, which is Waller versus City of Nogales, case number 23, excuse me, 24-1864. [00:00:34] Speaker 00: Good morning, your honors may please the court. [00:00:36] Speaker 00: At the heart, this case is now there are three Granby Connor factors at the heart of this case is the third and what the Ninth Circuit has repeatedly referred to as the most important of the Graham factors, the degree of immediate threat that a suspect poses in the moment that officers choose to use deadly force for under the Fourth Amendment analysis. [00:00:58] Speaker 00: And all indicators suggest that that most important factor in this case [00:01:04] Speaker 00: was not present. [00:01:05] Speaker 04: Well, can I ask about that? [00:01:07] Speaker 04: Because this is an interesting case. [00:01:13] Speaker 04: Don't we have to look at the totality of the circumstances? [00:01:17] Speaker 04: And the reason I ask that is because I think the analysis is different from what point in time you actually consider this. [00:01:25] Speaker 04: I mean, if you consider everything, that they went on a chase [00:01:28] Speaker 04: You know, he brandishes the knife, he threatens to cut their throat. [00:01:34] Speaker 04: If you consider all of that, it's a very different question about the risk of analysis from, hey, we just come upon a semi that stopped and then starts moving forward gently. [00:01:47] Speaker 04: So, I mean, are you arguing we should separate that first part out or you think, no, we have to consider that? [00:01:54] Speaker 04: But even when you consider that, the risk is not that high. [00:01:58] Speaker 00: This court absolutely must consider the totality of the factors your honor is absolutely correct. [00:02:03] Speaker 00: But what you just said the last thing you said is also correct that the most important consideration for this third Graham factor is the what happened immediately in the moment. [00:02:13] Speaker 00: We've appellant has cited cases defining what immediacy means in this particular context. [00:02:19] Speaker 00: One case we cite uses the term right here right now not what occurred [00:02:24] Speaker 00: 67 minutes prior, which is the rough timeline of when this whole ordeal began from working backwards from the shooting, but also even 60 seconds before, even 30 seconds before in some cases. [00:02:37] Speaker 00: We cite numerous Ninth Circuit cases and a handful of out-of-circuit cases for this proposition going back to the mid-1990s in the Ninth Circuit, including, for example, Robinson v. Solano, where a gentleman was wielding a gun in a potentially threatening manner [00:02:53] Speaker 04: at the time that nine one one was called but by the time officers arrived situation had changed uh... harris v rotter the problem that i have with this case is we don't know what the situation to change there you could see what was actually going on here he stops the as i understand it correct me if i have the facts wrong he stops the semi truck polls it when they they know he's armed and dangerous they've said that uh... they've seen the weapon uh... he pulls the shades and he's in there [00:03:22] Speaker 04: They don't know what's happening. [00:03:23] Speaker 04: They've called for him to come out. [00:03:27] Speaker 04: What is the inference to say, Oh, well, there's no, there's no more harm now. [00:03:32] Speaker 00: Uh, it's a fair question. [00:03:33] Speaker 00: I do want to correct one matter in the record, which is the only a smattering of officers were subjectively aware that he may possess a knife, but aside from the vehicle itself, a knife [00:03:46] Speaker 00: was the only potential weapon. [00:03:49] Speaker 04: But they read out, I thought the APB went out and said he's armed and dangerous. [00:03:54] Speaker 00: And armed was referring to the possibility that he possessed a knife. [00:03:57] Speaker 04: I understand that, but I mean, you know, a knife will, I mean, he threatened to kill somebody with a knife. [00:04:05] Speaker 04: I don't understand why that's any less [00:04:09] Speaker 04: I mean, maybe his ability, you know, a gun obviously would be worse because he could shoot without getting out of the car or out of the semi. [00:04:16] Speaker 00: I don't mean to undermine that fact. [00:04:20] Speaker 00: It does exist. [00:04:21] Speaker 00: It is in the record. [00:04:23] Speaker 00: Number one, it's not clear whether he threatened to kill somebody with a knife. [00:04:26] Speaker 00: He did brandish it in a somewhat ambiguous manner. [00:04:29] Speaker 04: Didn't he use the split throat? [00:04:33] Speaker 04: I'm not sure what you gather from that. [00:04:35] Speaker 04: I think it's reasonable to assume that that was threatened to kill somebody. [00:04:39] Speaker 00: I would argue that at this posture in the case, the facts need to be construed in the light most favorable to the non-moving party. [00:04:45] Speaker 04: What's the light most favorable to him when he pulls out a knife and does that? [00:04:51] Speaker 00: That it's intending suicidal intentions. [00:04:54] Speaker 00: But more importantly than what he meant or did not mean by that gesture 67 minutes earlier is the fact that it occurred 67 minutes earlier. [00:05:02] Speaker 00: And number two, most important, is that not all the officers possessed that piece of knowledge. [00:05:08] Speaker 00: appellee Bermudez, one of the shooting officers in the final shooting scene, the record indicates he did not subjectively know that fact in the moment. [00:05:21] Speaker 00: And likely Officer Pimienta, another appellee, did not know that fact either. [00:05:26] Speaker 00: They did know other facts which were mitigating to our client. [00:05:29] Speaker 00: For example, several of the officers knew that he had intentionally avoided collision with vehicles in the minutes [00:05:38] Speaker 00: leading up to the fatal shooting. [00:05:40] Speaker 00: There's an incident pointed out by Pelley's answering brief where he was entering the Walmart parking lot, for example, and he slammed on his brakes when he realized there was a civilian vehicle coming head-to-head with him at the entryway to the parking lot, so forcefully that one officer described smoke coming off the tires that he slammed on his brakes so heavily. [00:06:02] Speaker 00: In another instance, he weaved around two blockading [00:06:05] Speaker 00: parked police vehicles intentionally to avoid them avoid collision. [00:06:10] Speaker 00: So officers did possess subjectively including officer Bermudez possessed subjective knowledge going the other direction as well. [00:06:18] Speaker 00: But most importantly, what matters for the 3rd prong of Graham this problem we're focusing on is the immediate and I just asked before we move on to that. [00:06:28] Speaker 04: This is an objective test though right we don't look at it in a subjective announced we say what would be [00:06:34] Speaker 04: What would an objective, I guess it's, it's confusing because you say, what would an objective officer think knowing what information was out there? [00:06:43] Speaker 04: So I guess that's your point. [00:06:44] Speaker 04: You're not saying subjective. [00:06:46] Speaker 04: We look at these individual officers, but you're saying objectively based on that information. [00:06:51] Speaker 04: Correct. [00:06:52] Speaker 02: How would you, how do you define the right? [00:06:55] Speaker 02: I'm sorry. [00:06:56] Speaker 02: We have the two-step analysis. [00:06:58] Speaker 02: I'm qualified immunity. [00:06:59] Speaker 02: It's gotta be a violation of a constitutional right. [00:07:01] Speaker 02: How do you define the right? [00:07:03] Speaker 00: I believe I proffered in our opening brief a definition that we presented to the district court, but roughly speaking, it is whether the use of deadly force was justified in this particular instance, broad daylight, in an urban setting, but an urban setting where there are no civilian vehicles or civilian pedestrians in the path of the moving vehicle, and the moving vehicle is moving at a relatively [00:07:30] Speaker 00: slow pace. [00:07:31] Speaker 00: I recognize the record does not clearly indicate speed, but I believe we can all agree it was a relatively slow speed along Grand Avenue, the final resting place. [00:07:42] Speaker 00: That's how I would define the right. [00:07:46] Speaker 04: But the interesting thing about that is in defining the right, you're sort of going against what you said earlier, which is we have to take the totality of the circumstances into effect. [00:07:57] Speaker 04: And what I heard doesn't take into account some of the other factors that I think are relevant to this inquiry. [00:08:05] Speaker 04: You've got to admit, it's just different if you're chasing a guy for 60 minutes. [00:08:09] Speaker 04: Or is that right? [00:08:10] Speaker 04: Was it 60 minutes, the chase? [00:08:12] Speaker 00: We argue 67, correct. [00:08:14] Speaker 00: Approximately 60 minutes. [00:08:15] Speaker 02: And then a big tractor trailer. [00:08:18] Speaker 02: This is no motorcycle. [00:08:19] Speaker 00: Correct. [00:08:20] Speaker 00: But let me address the, and I've briefed this heavily as Your Honors saw, the size of the vehicle [00:08:27] Speaker 00: But we cannot ignore, and we do not ignore, that this vehicle is larger than most police shooting vehicle chase cases. [00:08:34] Speaker 00: We recognize that. [00:08:35] Speaker 00: But the size of the vehicle is analogous to the type of weapon, maybe in a different type of Section 1983 excessive force case. [00:08:43] Speaker 00: Let's take an example where a suspect wields a shotgun and a suspect wields a knife. [00:08:51] Speaker 00: Arguably, the shotgun has more lethality in the sense that you can strike someone at longer distances more quickly, more unexpectedly. [00:08:59] Speaker 00: But the Ninth Circuit and other circuits have routinely gone both ways. [00:09:05] Speaker 00: There are cases in the Ninth Circuit where, for example, we cite in both of our briefs a Kernau v. Ridgecrest police, for example, where there's a rifle being wielded. [00:09:17] Speaker 00: George B. Morris, also a rifle being wielded. [00:09:19] Speaker 00: Glenn V. Washington County also a rifle being wielded. [00:09:24] Speaker 00: Lopez V. Galhas also a rifle being wielded. [00:09:27] Speaker 00: All cases where qualified immunity was denied to the officers when they subsequently shot the suspect holding that knife. [00:09:35] Speaker 00: So I would reason that the type of vehicle, the large potentially heavy truck, is tantamount to the type of weapon. [00:09:43] Speaker 00: Again, it's not about the type of weapon. [00:09:45] Speaker 00: It's about how that weapon's being wielded in the moment. [00:09:48] Speaker 00: And yes, true, correct to your honor's point, also during the minutes leading up to it. [00:09:53] Speaker 00: We're not ignoring that. [00:09:55] Speaker 00: To answer your earlier question about objective reasonableness, I also struggled with that as we were preparing the briefs, because you are absolutely correct that the Fourth Amendment excessive force analysis is unequivocal. [00:10:05] Speaker 00: It is objective reasonableness. [00:10:08] Speaker 00: However, it's objective reasonableness with an asterisk. [00:10:11] Speaker 00: And that asterisk is the court must also, it's objective reasonableness for an officer [00:10:17] Speaker 00: Standing in that position possessing that knowledge that they possess and not all the officers possess the same knowledge in this case along Grand Avenue some of them At least one of them I believe knew about the knife incident. [00:10:31] Speaker 04: Well, so which way does that cut though? [00:10:33] Speaker 00: Because if some did possess it, I mean it is How many shots were fight it was it was a lot on in total it was over a hundred but in the relevant [00:10:42] Speaker 00: location that we're discussing, it was approximately 80 shots. [00:10:45] Speaker 04: Oh, okay. [00:10:46] Speaker 04: But still, 80 shots is a lot. [00:10:49] Speaker 04: Wouldn't you still have it, maybe this just goes to the factual issues, but you would still have to show that those officers who didn't have, if there were some officers who had that knowledge and it was reasonable, objectively reasonable for them to assume that this was dangerous, then they would have been justified in shooting and wouldn't you say that, I mean, [00:11:09] Speaker 04: I've never seen a case where some officers are objectively reasonable in shooting and others are not. [00:11:13] Speaker 00: Well, we argue that all four appellees were objectively unreasonable, but we also argue... But some had knowledge of the threat. [00:11:24] Speaker 00: I don't have it in front of me, but I believe one did. [00:11:25] Speaker 00: I know that Officer Pimienta and Officer Bermudez, two of the appellees, did not, certainly did not, in the record. [00:11:32] Speaker 00: In fact, Officer Bermudez, in his post-incident interview with investigators, said, quote unquote, I had no clue [00:11:38] Speaker 00: why my colleagues had initiated the initial chase 67 minutes earlier. [00:11:42] Speaker 02: Let me ask you this. [00:11:45] Speaker 02: The officers in their brief, they assert that the US Supreme Court has never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone be a basis for denying qualified immunity. [00:12:01] Speaker 02: So why should we hear? [00:12:04] Speaker 00: Well, the opposing counsel is absolutely correct. [00:12:07] Speaker 00: There are, to my account, four U.S. [00:12:09] Speaker 00: Supreme Court cases addressing 1983 cases using lethal force against a fleeing vehicle. [00:12:15] Speaker 00: None of them involves anything close to the facts of this case. [00:12:19] Speaker 00: And more importantly, one that features prominently, for example, Plumhoff v. Rickard, which opposing counsel cites voluminously, never reached the question of the underlying constitutional violation. [00:12:31] Speaker 00: The Supreme Court merely ruled that whatever the right may have been had not been clearly established at the time. [00:12:38] Speaker 00: um... scotty harris the other case that features prominently and this is the case you may remember featured at one of the first in court cases featuring a dash cam footage in the spring court had to grapple with that detail the congressman quote from scotty harris the facts were the fleeing vehicles racing down narrow two-lane roads in dead of night at shockingly fast speeds swerving around more than a dozen cars crossing the center line in what the supreme court described as a hollywood style purchase [00:13:06] Speaker 00: That is not the case in this instance. [00:13:09] Speaker 00: There is no indication, for example, that Mr. Cockrum was swerving in and out of civilian traffic during the 67 minutes. [00:13:15] Speaker 00: He was driving. [00:13:16] Speaker 02: Driving through the Walmart parking lot. [00:13:18] Speaker 00: At a slow, at a slow speed, at an ordinary speed, one would expect while he, by the way, he was under fire from the, during the first round of gunshots. [00:13:28] Speaker 02: Even if you're correct in trying to distinguish what happened here from the other cases. [00:13:35] Speaker 02: Where is the case that shows that the right that you articulated is clearly established? [00:13:41] Speaker 00: We've cited numerous nine circuit cases. [00:13:47] Speaker 00: Prior to the incident here, we contend that Orne v. City of Tacoma is very analogous. [00:13:53] Speaker 00: The district court disagreed with us, but we contend that it also involved officers who were in close quarters. [00:14:01] Speaker 00: There was [00:14:03] Speaker 00: running red lights. [00:14:04] Speaker 00: There was modest speeding, I think, at certain points of that interaction. [00:14:08] Speaker 04: Ultimately, I thought Orrin was really driving without headlights. [00:14:13] Speaker 04: That seems like a far different underlying crime than what was going on here. [00:14:20] Speaker 00: I believe, again, the focus on what may have occurred 67 Minutes is not the constitutional standard. [00:14:29] Speaker 00: Yes, it is part of the totality. [00:14:31] Speaker 00: But what was occurring in the moment is very similar to what was occurring in Orne. [00:14:35] Speaker 00: It's very similar to, I'll give you another one, which I don't believe was cited directly, but AD versus California Highway Patrol, also a Ninth Circuit case presenting similar situations. [00:14:48] Speaker 00: There are cases in the Ninth Circuit going back to the 90s on this issue, which we've cited in our briefs. [00:14:57] Speaker 00: And also the consensus of persuasive authority in the other circuits. [00:15:00] Speaker 00: You likely saw my quite voluminous chart, including cases, Your Honor, from the 3rd Circuit, 2 cases from the 3rd Circuit, 2 cases from each of 6 other circuits outside of the 9th, all predating the incident here. [00:15:13] Speaker 02: You know, officers in Nogales, Arizona are supposed to be familiar with 3rd Circuit cases and cases from other circuits. [00:15:21] Speaker 00: The US Supreme Court suggests that a consensus of persuasive authority from other circuits does create clearly established law. [00:15:31] Speaker 00: That's the holding of Wilson v. Lane going back to the late 1990s of the US Supreme Court. [00:15:36] Speaker 00: That's an alternative basis for finding clearly established law. [00:15:40] Speaker 00: Thank you. [00:15:42] Speaker 04: Thank you, counsel. [00:16:06] Speaker 04: Go ahead, Mr. Peterson. [00:16:07] Speaker 01: Good morning. [00:16:08] Speaker 01: I'm Andrew Peterson. [00:16:09] Speaker 01: I represent the defendants. [00:16:11] Speaker 01: May it please the court. [00:16:14] Speaker 01: I know Judge Hawkins knows a little bit about Arizona, but I brought a map with me that's part of the record. [00:16:20] Speaker 01: Because I think, Judge Nelson, you're correct that you have to look at the totality of the circumstances. [00:16:27] Speaker 01: You have to look at from the time this first started at the produce warehouse where the knife is brandished. [00:16:35] Speaker 01: where the Santa Cruz County defendants who are no longer defendants in the case, when the Santa Cruz County deputies first encountered Mr. Conkrum. [00:16:45] Speaker 01: When he left the Molina produce, that's after he'd been at H&M where they'd gotten an initial call, goes over to Molina, has a confrontation with the deputies, he had south on the frontage road. [00:17:01] Speaker 01: to get back onto the freeway to I-19, you have to get off the frontage road. [00:17:07] Speaker 01: And he ran the red light on the south frontage road to get back on the interstate. [00:17:15] Speaker 01: And then he heads north. [00:17:17] Speaker 01: And this goes on for miles until he starts approaching the border patrol checkpoint. [00:17:24] Speaker 01: And all of this time, he's being pursued with lights and sirens. [00:17:29] Speaker 01: This was a significant [00:17:30] Speaker 01: incident. [00:17:32] Speaker 01: He was a clear and present danger in that truck rate, that 20-ton truck rate. [00:17:38] Speaker 01: And as he approaches the border patrol, what does he do? [00:17:41] Speaker 01: He cuts through the median on the interstate to avoid it and does a U-turn. [00:17:47] Speaker 01: There are two people there that he almost hit, a border patrol who had thrown out some stop spikes [00:17:54] Speaker 01: And in fact, she threw them out. [00:17:56] Speaker 01: He looked like he was now swerving or trying to swerve around them and towards her. [00:18:01] Speaker 01: And so she runs out towards where she had thrown the stop sticks. [00:18:07] Speaker 01: That's, um, the board of patrol agent Holstein. [00:18:10] Speaker 01: Then he's making his turn and there's a Santa Cruz deputy there, deputy Anza, and he almost hits him. [00:18:17] Speaker 01: Then he hit back down to no gallows. [00:18:20] Speaker 04: Yeah, no. [00:18:21] Speaker 04: Council, we're aware of the facts here, and several of them are helpful to you. [00:18:28] Speaker 04: At the end of the day, we always get these cases, and at the end of the day, whatever happened is still tragic. [00:18:36] Speaker 04: And you're left there thinking, okay, why did it have to happen this way? [00:18:41] Speaker 04: And I'm trying to understand, because I thought there was actually discussion of using non-lethal force, breaking a window. [00:18:47] Speaker 04: What ended up happening there? [00:18:51] Speaker 04: Or was it used and it just wasn't effective? [00:18:53] Speaker 01: Right. [00:18:54] Speaker 01: And that brings up my map a little bit. [00:18:57] Speaker 01: I held this all the way up from Tucson, so I thought I'd better do it. [00:19:00] Speaker 01: I don't know if you can see it or not. [00:19:02] Speaker 01: So here, this is Mariposa. [00:19:04] Speaker 01: Before you start pointing, Councilman, did you ask permission to use this? [00:19:11] Speaker 01: I informed your court clerk that I had an exhibit, a map, and that's part of the record. [00:19:16] Speaker 01: It was in council? [00:19:18] Speaker 01: That's part of the record. [00:19:19] Speaker 01: I didn't ask him about showing this part of the record exhibit. [00:19:24] Speaker 04: Where is that in the record? [00:19:26] Speaker 01: This is in two places. [00:19:27] Speaker 01: I think in the initial motion that they filed, plaintiffs filed, they referred to it as a Google map. [00:19:39] Speaker 01: We then attach that in our response to their motion. [00:19:43] Speaker 03: This photograph is in the record. [00:19:46] Speaker 03: It is where that's that's. [00:20:10] Speaker 01: This is going to distract from my argument here to give you the citation. [00:20:14] Speaker 01: I'll give it to you. [00:20:14] Speaker 01: Look at, for instance, ER164, 2ER164. [00:20:19] Speaker 01: And it's the same map that's attached to our reply. [00:20:26] Speaker 01: which they referenced in their opening. [00:20:28] Speaker 04: But your representation is, if we look at ER 164 and that map, this is just a Google? [00:20:35] Speaker 01: This is just a broader Google map, the one that they referred to in the record. [00:20:39] Speaker 01: 164 is actually showing the Walmart. [00:20:44] Speaker 01: And I think it's important because Johanna just asked, well, weren't they trying to use less than lethal? [00:20:50] Speaker 01: Initially, they were trying to stop him. [00:20:53] Speaker 04: Well, but they were all and they were also using lethal force to stop or I don't know if you count they were shooting at the wheels, as I understand it. [00:21:00] Speaker 01: Well, that came only after he comes off. [00:21:03] Speaker 01: That's why I wanted to show you the map. [00:21:04] Speaker 01: He's coming down Grand Avenue. [00:21:06] Speaker 04: Yeah, but my point is once he was stopped there, they had a discussion of what to do. [00:21:11] Speaker 04: He draws the shades. [00:21:13] Speaker 04: I thought they had a discussion of, hey, let's break the window and use non-lethal force. [00:21:17] Speaker 01: And they tried to. [00:21:18] Speaker 04: And what what prevented that? [00:21:21] Speaker 01: Well, the [00:21:22] Speaker 01: breaking the window, they were able to break the one window. [00:21:25] Speaker 01: The flashbang grenade that they were trying to throw in didn't function correctly, didn't go off. [00:21:33] Speaker 01: But in the meantime, one of the officers had cut the brake lines. [00:21:39] Speaker 01: So now when he takes off from the parking lot, you got to remember, he's pulled up on the west entrance of the Walmart, where all these pedestrians, look at Chief Bermuda's affidavit. [00:21:52] Speaker 01: Where he's out there, he's there. [00:21:54] Speaker 03: I think Judge Nelson's question, at least as I understood it, focused on the moment that the fatal shots were fired. [00:22:04] Speaker 03: All right. [00:22:05] Speaker 03: Can I finish? [00:22:06] Speaker 01: Sure. [00:22:08] Speaker 03: Was the vehicle at rest? [00:22:10] Speaker 01: No. [00:22:11] Speaker 01: Was it still moving? [00:22:12] Speaker 01: It was still moving. [00:22:13] Speaker 04: It was not until they had, and that's what prompted it apparently. [00:22:17] Speaker 04: So when it was at rest, they were doing all these things. [00:22:19] Speaker 04: They cut the brakes, they broke the window and then he started moving and that's what prompted the shots. [00:22:25] Speaker 01: It did. [00:22:26] Speaker 01: And that's in the Walmart parking lot. [00:22:27] Speaker 01: We're not even back on Grandia. [00:22:29] Speaker 01: Now he's dragging the trailer. [00:22:33] Speaker 01: Remember when he pulls into the Walmart, he hits the curb and blows out one of his tires on this trailer. [00:22:39] Speaker 01: So he's already somewhat disabled. [00:22:41] Speaker 01: He's there in the parking lot. [00:22:42] Speaker 01: He's not responding to them. [00:22:44] Speaker 01: They're trying various things, including cutting his brakes. [00:22:46] Speaker 01: Then he leaves and he's dragging this trailer. [00:22:51] Speaker 01: This 20-ton truck is dragging this trailer as he's leaving. [00:22:55] Speaker 01: And what does he do when he leaves? [00:22:56] Speaker 01: There were two patrol cars up on the west end of the Walmart before a white drive. [00:23:04] Speaker 01: And before then, he goes through those vehicles. [00:23:07] Speaker 01: He crashes through those vehicles, the police vehicles. [00:23:11] Speaker 01: and he doesn't stop, he doesn't slow down. [00:23:13] Speaker 01: They're shooting at him to get him to try to stop. [00:23:18] Speaker 02: Wasn't there something in the record that the officers who may have fired the fatal shot weren't sure where some of the other shots were coming from and may have been coming from the truck? [00:23:33] Speaker 01: Chief Bermuda's shot is the one that was a fatal shot. [00:23:38] Speaker 01: When you're referring to other officers didn't know where the shots were coming from, that's before he leaves the Walmart parking lot. [00:23:46] Speaker 02: Okay, that's before that. [00:23:47] Speaker 01: Yeah. [00:23:49] Speaker 02: All right. [00:23:49] Speaker 02: Does that make a difference? [00:23:53] Speaker 01: No, honestly, no. [00:23:55] Speaker 01: They knew he was a threat. [00:23:57] Speaker 01: He wasn't stopping. [00:23:59] Speaker 01: He was still moving. [00:24:02] Speaker 01: They tried every way to try to stop him. [00:24:04] Speaker 01: How do you stop the 2010 rig? [00:24:06] Speaker 01: do exactly what these officers tried to do. [00:24:08] Speaker 01: In fact, endangering themselves. [00:24:10] Speaker 01: Can you imagine jumping up on the back of that thing and cutting the brake lines, trying to stop this? [00:24:16] Speaker 02: Wasn't the trailer pretty much disabled at that point coming out of the Walmart parking lot? [00:24:21] Speaker 01: Absolutely. [00:24:22] Speaker 01: But he was dragging it, according to one of the witnesses, like it was a wagon behind a car. [00:24:27] Speaker 01: Didn't slow him down. [00:24:29] Speaker 01: When he comes out, he almost hits another civilian. [00:24:31] Speaker 01: They talk about in their brief that there were no pedestrians or civilians around. [00:24:36] Speaker 01: The one video, the video was taken by a civilian. [00:24:41] Speaker 01: It looks like it's being videoed outside of a bus on Grand Avenue. [00:24:48] Speaker 01: And let's talk about the record. [00:24:50] Speaker 01: The record is they didn't take a single deposition in this case. [00:24:55] Speaker 01: They didn't hire an expert to review this case. [00:24:58] Speaker 01: The record is our affidavits detailing what occurred. [00:25:05] Speaker 02: How do you define the constitutional right? [00:25:08] Speaker 01: I don't have to. [00:25:09] Speaker 01: The Tennessee versus Garner tells us what it is. [00:25:13] Speaker 01: Tennessee Garner versus Garner tells us what the right is. [00:25:16] Speaker 01: You cannot use deadly force unless there's an imminent or immediate threat of significant harm. [00:25:24] Speaker 01: We've had that Garner since 1985. [00:25:27] Speaker 02: Do you think the District Court properly defined the right? [00:25:29] Speaker 02: It did. [00:25:31] Speaker 01: It did. [00:25:32] Speaker 01: And Ranner Collins is [00:25:34] Speaker 01: been doing this a long time. [00:25:36] Speaker 01: He looked at this, he considered it carefully. [00:25:38] Speaker 01: He defined the right correctly. [00:25:41] Speaker 01: You can't, I mean, they're trying to make this right. [00:25:47] Speaker 01: Take out everything that happened up until the last few seconds. [00:25:52] Speaker 02: Did the district court define the right at all? [00:25:57] Speaker 02: I don't know what the right is under their argument. [00:26:01] Speaker 02: I mean, [00:26:02] Speaker 02: Doesn't the district court have to, didn't the district court have to define the right before it makes the determination that there was no violation of that right? [00:26:10] Speaker 01: No, we don't. [00:26:11] Speaker 01: I think we can go to the second prong and clearly is. [00:26:14] Speaker 02: Okay. [00:26:16] Speaker 01: Without having to say whether there was or was not. [00:26:19] Speaker 02: Well, how can you go to the second prong if you don't know what the right was? [00:26:22] Speaker 01: I'm sorry. [00:26:23] Speaker 02: How can you jump to the second prong if you don't know what the right was? [00:26:28] Speaker 01: Well, it's a fourth amendment right. [00:26:29] Speaker 01: But that's exactly the same thing the Supreme Court did in Casella, the shooting from Tucson at the University of Arizona. [00:26:40] Speaker 01: The court did not go through and decide. [00:26:42] Speaker 01: In fact, it said, we don't have to go there. [00:26:45] Speaker 01: We don't know. [00:26:46] Speaker 01: It's far from unclear whether this right was, whether there's a Fourth Amendment violation. [00:26:52] Speaker 04: And then went to the clearly established problem. [00:26:56] Speaker 04: So why don't you tell us a little bit about some of these cases? [00:27:00] Speaker 04: Describe the Orne case, because opposing counsel brought up the Orne case and said that that clearly establishes that what the officers did here was wrong. [00:27:10] Speaker 01: I don't read Orne that way. [00:27:11] Speaker 01: We went through each of their cases, as did the district judge, trying to look at those cases and see whether they're factually similar. [00:27:21] Speaker 01: I don't, off the top of my head, read so many of these yesterday. [00:27:25] Speaker 01: I don't remember the specifics of Orne, but it was not, Orne does not tell us that under these circumstances, you cannot use deadly force. [00:27:36] Speaker 01: If I remember correctly, Orne, there was a question about whether he was armed. [00:27:42] Speaker 01: I think more analogous cases, maybe the Washington case, the Sparks case, city of Sparks case just from last year. [00:27:50] Speaker 01: I think that's a little bit more analogous. [00:27:52] Speaker 04: The Sparks case, that was Ninth Circuit? [00:27:54] Speaker 04: Yes. [00:27:56] Speaker 04: And tell me about that case. [00:27:58] Speaker 01: That case, I think it's called Washington versus Sparks. [00:28:03] Speaker 01: It's the city of Sparks. [00:28:05] Speaker 01: That case allowed the use of deadly force. [00:28:07] Speaker 01: You have a situation, going back and looking at Plum Hop, situation where there is a high-speed chase that goes on for a long time. [00:28:16] Speaker 01: They think they got him cornered and he tries to escape and they use deadly force. [00:28:24] Speaker 01: That's a little bit more analogous. [00:28:26] Speaker 01: And to be fair to the officers involved in this, here we have got to remember on this day of all things, the reason why Officer Pimianti and Batrice got involved because they were headed to Tucson to be part of the procession on bringing back the body of a Nogales police officer who was killed while he was directing traffic. [00:28:50] Speaker 01: That's how they got involved. [00:28:52] Speaker 01: That's why all these other officers were fairly close. [00:28:55] Speaker 01: including the chief himself. [00:28:59] Speaker 01: And you probably had nearly all of the department responding to this threat to try to stop, risking their own lives in trying to stop this, including Chief Ramudez, who was at Mariposa Way trying to stop traffic as this truck comes through and runs the red light. [00:29:23] Speaker 01: Appellant's counsel says that some of the officers didn't know exactly all of the circumstances. [00:29:29] Speaker 01: Camiento knew because he was there all along. [00:29:33] Speaker 01: He was the one who saw, initially saw the truck headed up towards the border patrol, saw the turnaround making the U-turn across the median. [00:29:41] Speaker 01: Bermudez had heard all of this on the radio what was going on. [00:29:45] Speaker 01: Bermudez was standing in the intersection as the truck blows by and the driver flips him off. [00:29:51] Speaker 01: Just a total disregard for human life. [00:29:54] Speaker 01: That's what they were facing. [00:29:57] Speaker 01: And it was reasonable to use deadly force to stop this threat. [00:30:06] Speaker 01: Any other questions from the court? [00:30:08] Speaker 01: I appreciate your time. [00:30:09] Speaker 01: We ask that you affirm Judge Collins' decision. [00:30:13] Speaker 01: Thank you. [00:30:14] Speaker 04: Thank you, counsel. [00:30:14] Speaker 04: We'll give a minute for, is that right? [00:30:17] Speaker 04: Yeah, yeah, a minute, because I think you'd used it up. [00:30:23] Speaker 00: Thank you, I appreciate that courtesy, Your Honor. [00:30:25] Speaker 00: Just a quick point on counsel's Ninth Circuit cases. [00:30:29] Speaker 00: He did mention the Sparks case. [00:30:32] Speaker 00: For the record, that is Williams v. City of Sparks. [00:30:35] Speaker 00: That case was issued in 2014, three years after the incident in this case. [00:30:40] Speaker 00: Opposing counsel also cited in his answering brief, Sabi. [00:30:44] Speaker 00: I don't know the pronunciation, S-A-B-B-E. [00:30:46] Speaker 04: I mean, the problem for you is you need to have a case that shows that it was clearly established that this was wrong. [00:30:53] Speaker 00: I mean, even if you're right about all that, they don't have the burden. [00:30:56] Speaker 00: Again, Oran B, city of Tacoma. [00:30:58] Speaker 00: There's a case called Villanueva, which we brief extensively in our briefs. [00:31:03] Speaker 00: AB versus California Highway Patrol. [00:31:06] Speaker 00: And there's a, I'm sorry, Adams v. Spears, an older Ninth Circuit case. [00:31:13] Speaker 00: or nine circuit cases we brief extensively and or in particular, we believe is on point. [00:31:19] Speaker 00: In addition to that, I will reiterate the consensus of persuasive authority from other circuits from, I believe, six other circuits. [00:31:26] Speaker 00: It's not insignificant. [00:31:28] Speaker 00: Thank you. [00:31:29] Speaker 04: Okay, thank you. [00:31:30] Speaker 04: Thank you to both counsel for your arguments in the case. [00:31:32] Speaker 04: The case is now submitted.