[00:00:11] Speaker 05:
Go right ahead.

[00:00:12] Speaker 00:
Good morning, Your Honors. May it please the court. My name is Hersh Gupta. Along with my colleague, I represent the appellant, Mr. James Smith. I reserve five minutes for rebuttal and will watch my time.

[00:00:21] UNKNOWN:
Thank you.

[00:00:22] Speaker 00:
Your Honors, on November 19th, 2022, Officer Olvera encountered a Mr. Smith who was on his knees with his hands up to signal his surrender. Yet Olvera then tackled and beat Smith with his baton while Smith lay face down on the ground without resisting. The district court properly applied the summary judgment standard to conclude at ER16 that a reasonable juror could find that Olvera violated Smith's Fourth Amendment rights. But the district court failed to apply that summary judgment standard in its clearly established analysis.

[00:00:53] Speaker 00:
Properly applying that standard, this court had clearly established Olvera's conduct as unconstitutional for three reasons. First, Smith posed no immediate threat. Second, Smith was non-resisting. And third, Olvera failed to reassess his use of force. As such, this court should reverse the district court's clearly established analysis and remand for trial.

[00:01:14] Speaker 00:
Let me start with the first clearly established principle that controls this case, which is rooted in this idea of an immediate threat.

[00:01:22] Speaker 00:
This court, the Supreme Court, and numerous sister circuits have held that officers cannot use force against suspects who pose no immediate threat to officers, to the public, or fleeing.

[00:01:33] Speaker 00:
And the case on point for these facts is Longoria v. Pinal County from 2017.

[00:01:38] Speaker 00:
In that case, this court held that it was unreasonable for officers to use deadly force against a suspect who had engaged police in a car chase, during which he exhibited erratic and threatening behavior, because once he'd exited his vehicle and was raising his empty hands in the air, he posed no immediate threat.

[00:01:55] Speaker 05:
Okay, so your brief does something, and I'll tell you both because I'm going to have this question throughout, where there's a rule statement that you're taking, I think, in isolation. And, of course, these circumstances that we see tragically often are we have to look at the totality of the circumstances, right? Yes, Your Honor. Okay. And the most important factor that we're looking at is officer safety or safety of others. Yes. Right. OK. And so the Supreme Court has recently reminded us that we're going to look at the totality of the circumstances and not necessarily a freeze frame, which would require I think we'll get to that in a minute about the reassessing each use of force.

[00:02:32] Speaker 05:
But so there's this very dramatic chase leading up to this incident. And I think your action starts with what I'll call the freeze frame with his hands raised. So at that point, I think you're arguing he has surrendered and it's over.

[00:02:47] Speaker 05:
But there's a couple of problems. It's dark.

[00:02:50] Speaker 05:
One thing I noticed is the officer didn't pull a gun. He brought a baton out. And so we have to talk about whether that really is the use of deadly force. Sometimes it is. Sometimes it isn't, depending on how it's used. But I think you're taking issue with what? Right at that moment, the officer should have done what rather than telling him to get down?

[00:03:10] Speaker 00:
In that moment, Your Honor, Officer Olvera simply needed to hit a number of options. He could have simply ordered Smith to remain in that position of surrender until other officers arrived. He could have used hands-on force, as the district court pointed out, to effectuate the arrest in that moment as well.

[00:03:24] Speaker 05:
Well, all of that works a lot better if he knows that this person wasn't armed.

[00:03:30] Speaker 05:
And what he knows, I think, pretty clearly from this record is that this person was real willing to disobey orders. He's evaded. There's been a chase. There's been a couple pit maneuvers. And he's continued to drive off this pretty extreme flight.

[00:03:46] Speaker 05:
And so at that point, if we think there's a danger of a weapon, if we think that a reasonable officer in this officer's position may have thought that there was a risk of a weapon, doesn't that change the analysis?

[00:03:59] Speaker 00:
No, it doesn't, Your Honor. And that's because a couple of points. First, this court has held in Kalanchoe City of San Jose, for example, that suspect's possession of a deadly weapon itself does not justify the use of force. And again, this is rooted in that first principle controlling this case about an immediate threat here, unless the suspect makes some sort of threatening gesture movement to suggest that they have a weapon and are willing to use it. An officer is not justified in using deadly force in that moment. And the case on point might be helpful as as a cruise city of Anaheim from 2014.

[00:04:29] Speaker 00:
In that case, as in Longoria, the suspects had engaged police in a car chase. But as he was exiting his vehicle, the court held that a reasonable jury could find he made no such threatening movement and that instead his movements as he was exiting the car could equally be consistent with the off with. as being compliance with the officer's orders.

[00:04:48] Speaker 05:
So in this case, we don't have what we had in Cruz or in some of the other cases where there's physical evidence that just flat contradicts what the officer said after the fact, right? We just don't have that here, I don't think.

[00:05:00] Speaker 05:
You know the record very well. I commend you on your preparation, and I thank you for it. But one of the things this record tells me is that the officer said after the fact in his report that it looked like he lost sight of one hand. when he asked this individual, told the individual to get down on the ground, and at one point he suggests that it looked like his hand was going towards his waistband.

[00:05:21] Speaker 00:
Your Honor, a reasonable juror could find that in that moment, Smith was moving out of that position of surrender on his knees with his hands up, onto the ground in direct compliance with Olvera's order at minute 617 of Olvera's recording to, quote, get on the ground. And subsequently, Olvera orders Smith to put your hands behind your back, and from that position on the ground with his hands up, a reasonable juror couldn't conclude on summary judgment that Smith needed to then move his hands, at least at some point, toward his waistband in order to comply with Alera's orders.

[00:05:48] Speaker 05:
It could. So you've got prong one, right? The district court recognized that a jury could find a constitutional violation. But we've got this problem on prong two where we don't look at this with 20-20 hindsight. We don't require that of officers right in the heat of the moment. What's your best response to that?

[00:06:06] Speaker 00:
Your Honor, at the prong two stage, what officers— The crux of qualified immunity is whether officers are on fair notice that what they're doing is unconstitutional. And what the Supreme Court and this court has held is that you need to have cases that are clearly established on similar set of facts to show that in this type of situation what the officer did was unconstitutional.

[00:06:28] Speaker 05:
What's your best case on this point? I think your best argument is that at the moment where Smith had his hands up, that Officer Olvera was required to wait. And the other officers, as we know now, were within a minute of arriving.

[00:06:44] Speaker 00:
Yes, Your Honor. And Longoria clearly establishes that on these facts. And Cruz provides additional support for the fact that any movement out of that position of surrender could equally be construed as compliance with Lavera's orders in the context of a high-speed car chase where the suspect has exhibited dangerous behavior. I'll turn now to the second clearly established principle controlling this case, which is that officers cannot use force against suspects who are not resisting. And the case on point for these facts is Jones v. Las Vegas Metro Police Department.

[00:07:14] Speaker 00:
In that case, it was unreasonable for officers to use continuous, repeated applications of a taser on a suspect who was on the ground had physically impaired mobility, and was non-resisting. And so too here. Like Jones, Smith was on the ground while Oliveira was beating him. His mobility was impaired on account of his pre-existing injuries, and a reasonable juror could find that he was non-resisting.

[00:07:36] Speaker 05:
Those cases, and there's a lot of them, really cluster around whether handcuffs have been applied, which they hadn't been here, or whether the individual is otherwise sufficiently restrained that he can't resist. And And I don't see that in the video clips that we have. I don't see that Officer Alvaro continued to deliver blows past the time where Smith was detained.

[00:08:04] Speaker 05:
Do you think I missed that?

[00:08:06] Speaker 00:
No, Your Honor. After Smith was handcuffed, Alvaro did not appear to issue baton blows. But Jones is still applicable on the principle that even prior to the suspect being actively handcuffed, once the suspect is on the ground, and not physically resisting arrest in any way, a use of intermediate force like a baton or like a taser is unconstitutional.

[00:08:28] Speaker 04:
What do we do with Mr. Smith's testimony that he was struggling during the period of time when they were trying to subdue him?

[00:08:36] Speaker 00:
Your Honor, later in Smith's deposition, he also claims that he was non-resisting, and there's evidence from the record a reasonable juror could conclude that, in fact, he was non-resisting and that even if he was attempting to struggle—

[00:08:50] Speaker 04:
But his own testimony seems to be inconsistent on that point, and so we're supposed to ignore that as we construe the facts in the light most favorable to him?

[00:09:01] Speaker 00:
Your Honor, I believe a couple of points in response. Digging deep in the details of the record at ER 176 is one of the points where Smith mentions that he may have been struggling, but we have nothing, the record, the pages were right. that specify what question was asked for Smith, that response is missing. So we have no idea what he was actually asked to generate that response. And second, this court has held in cases like the state of Fernandez and Zion, the county of Orange, that suspect's movements after force has been inflicted might reasonably be understood as due to pain and thus non-threatening.

[00:09:35] Speaker 00:
And I want to just quickly return to your point, just question about the totality of the circumstances, because as you pointed out, Supreme Court has emphasized that it is the totality of circumstances officers must consider when deciding whether force is justified. But the Supreme Court went on in Barnes v. Felix to emphasize that it is often the situation at the precise moment that forces apply that matters most. And here, after Smith crashed his car, his vehicle was indisputably not an issue in Officer Olvera's safety analysis.

[00:10:05] Speaker 00:
And Officer Olvera had 15 seconds between when Smith crashed his car and when he approached Smith, including having to leap over a fence and close the distance between Smith, to see that during that time Smith was on his knees with his hands up and nothing Smith did after that moment suggested that he posed an immediate threat.

[00:10:21] Speaker 05:
Did the Supreme Court's recent decision in Barnes change this notion about looking at reassessing force in freeze frame?

[00:10:29] Speaker 00:
No, Your Honor. It's simply said the totality of circumstances is still the core analysis, but that that precise moment of force is applied is key.

[00:10:37] Speaker 05:
Thank you for your argument.

[00:10:38] Speaker 00:
Thank you, Your Honors.

[00:10:54] Speaker 02:
May it please the Court. Good morning. My name is Brent Ryman from Reno, Nevada, defending Brian Olvera in this case.

[00:11:04] Speaker 02:
And I think before I get into the full analysis of the constitutional violations and the facts of this case and all the questions that I know the panel will have for me here, I think it might be important to start with a concept that Judge Traum got exactly right. And that concept is came in the first portion of the ground-versus-conner analysis, the severity of the crime at issue. And she said, quote, and this is on page 1157 of the reported decision, quote, the severity of the crime at issue is both a proxy for how dangerous a suspect is at the time force is applied and also an independent factor in deciding a constitutional violation.

[00:11:54] Speaker 02:
And the reason that I think that that's important here is because it informs the analysis of what a reasonable officer might perceive as the totality of the circumstances. Because as the panel correctly noted here, part of the appellant's argument is that the act of potentially raising some hands is a freeze frame, and that at that point, nothing else matters.

[00:12:21] Speaker 05:
When you say potentially raising his hands, there's a photo. He has his hands up. He's boxed in. He's surrounded by fences.

[00:12:28] Speaker 02:
He's got his hands in front of him, Your Honor, but I agree.

[00:12:31] Speaker 05:
I think he's got his hands up, and then he moves forward to go down. Do you think I misread the video? That's sort of a universal gesture. I give up.

[00:12:42] Speaker 02:
I think he has his hands in front of him, Your Honor. But either way, I don't want to create an issue of fact here and argue with the panel about the facts.

[00:12:49] Speaker 05:
I'm just trying to engage in opposing counsel's argument. And I find it, I think this was a hard case. I don't think it's a close case. Because what we know, there was radio traffic. It's a little hard to pin down exactly when Officer Olvera was aware that he had backup. But he had a lot of backup. A couple other officers arrived, I think, within a minute. So opposing counsel argues, I think with some justification, that one option here would have been to just wait a second.

[00:13:16] Speaker 05:
He jumped over the fence.

[00:13:19] Speaker 05:
The other gentleman arrived very shortly thereafter. And, you know, there's some pretty serious injuries here.

[00:13:29] Speaker 02:
Your Honor, I agree.

[00:13:30] Speaker 05:
I think it's a tough call. I appreciate that it was dark. I appreciate that we don't do this with 20-20 hindsight, but I don't think it's a slam dunk.

[00:13:38] Speaker 02:
My point, Your Honor, would be that that's exactly why there's qualified immunity for tough calls. And in this case...

[00:13:45] Speaker 02:
I'm glad I have the opportunity to argue this today because I've been thinking a lot about the duty to reassess and the opportunity that plaintiffs or appellants have for freeze frames.

[00:13:57] Speaker 02:
Perhaps I was a little inarticulate when I was talking about hands up or hands in front earlier, but the idea that you can put a freeze frame in a brief and say, once the officer sees that freeze frame, the officer has a duty to forget everything that happened before then. And that's not the case, because that would be the opposite.

[00:14:15] Speaker 05:
It's not the law, and it's asking a lot, given this chase sequence, for everybody to just sort of relax. There wasn't a lot of adrenaline.

[00:14:25] Speaker 05:
But I...

[00:14:27] Speaker 05:
But there was the option, and the opposing counsel does make the argument, since his client at that point is fenced in, I think pretty clearly. The officer had to jump over a fence to get to him.

[00:14:39] Speaker 05:
He's not going to flee anymore, and he's got his hands up. So why was it reasonable to come after him with a baton?

[00:14:46] Speaker 02:
He's fenced in with a wounded animal, Your Honor.

[00:14:51] Speaker 05:
He's fenced in with someone who's led— Well, not until he jumped over the fence to get in there.

[00:14:54] Speaker 02:
Right. Once he's in there— Yeah. He's going to subdue the suspect. He's going to arrest the fleeing suspect. He knows the totality of the circumstances, everything that's happened in this extremely dangerous chase up to then. The duty to reassess, and excuse me, appellant points out a number of opportunities to reassess the situation, but the duty to reassess is not a duty to forget everything that happened before then.

[00:15:18] Speaker 03:
Right, but I think you seem to be arguing that there is no duty to reassess, even in the context of the totality of the circumstances. And I guess my question then is, once he's subdued with the first baton strike or second, then the repeated striking...

[00:15:42] Speaker 03:
then brings some of the duty to reassess into play here in terms of whether there's a genuine issue of material fact.

[00:15:52] Speaker 02:
To go back to the beginning of your question, Your Honor, I'm not arguing there's no duty to reassess. I think that officers are constantly reassessing in the real world. Officers are constantly reassessing based on the totality of the circumstances as they evolve over the course of an event. And so I'm not arguing that there's no duty to reassess here. And I'm saying that, in fact, Officer Olvera did constantly reassess this situation. And in regard to Judge Kristen's question, and I won't get... That's all right.

[00:16:24] Speaker 02:
I'm going to talk about the repeated baton blows. But in regard to the question about being in the caged area, in the fenced area, I guess, I don't know that that's necessarily a factor that is favorable for appellant here. that's a situation where you're in close contact with someone where you don't have the ability to transition to a different type of force, a different instrument to use, and you're in there with someone else who can then do a number of things.

[00:16:52] Speaker 02:
If they have some kind of a firearm or weapon, they can have much more accurate fire, much more opportunity to strike or injure you. And for that reason, Officer Olvera has the baton. He's already assessed the situation and decided what he's going to be in there with, which allowed him to also get over the fence, as you've seen in the video. And Judge Thomas, I think I need to assess the repeated baton blow questions that you had. And The answer is that I think you were incorrect at the beginning of that question when you indicated that appellant had been subdued, had been.

[00:17:33] Speaker 03:
I mean, that's that's that's their, you know, their their contention. So it's not my conclusion. I'm just saying that's their contention. And that's what I'm asking you to respond to.

[00:17:44] Speaker 02:
Well, I apologize for the insinuation.

[00:17:46] Speaker 03:
No, no, that's fine.

[00:17:48] Speaker 02:
I just don't think the record shows that, and I think the record shows that the repeated baton blows were necessary here. I wish we had more clear video.

[00:17:56] Speaker 02:
I haven't personally worn a body-worn camera in one of these situations, but these things happen. But we need to judge this from the perspective of the officer, and the plaintiff at the summary judgment stage has the duty to prove the indisputable issue of material fact. And he can't do that. I think one thing that just came out at the very end of that argument was he can't do that with Conflicts in his own testimony, and I think there's several cases on that.

[00:18:25] Speaker 05:
I always cite them in my I'd like to back up for one second and make sure that we're on the same page about the degree of force that was being used we typically look at tasers or batons and Classify them as that the use of intermediate force, but of course you're very familiar with that our definition for Deadly force right force capable of causing death or serious bodily injury and so that So use of a baton can become deadly force if somebody hits somebody else over the head with it. Right.

[00:18:55] Speaker 02:
That's my understanding. And that's certainly what Judge Strom ruled in her order based on the young. Right.

[00:18:59] Speaker 05:
So at some point, if we I think the defendant has not conceded that he ever hit Mr. Smith in the head with a baton. But there's strong circumstantial evidence that one of the blows landed there with whether that was intentional or not. I don't know. It was dark.

[00:19:13] Speaker 05:
Maybe there was squirming going on. But he winds up with some injuries to his face, including some broken teeth, and there's no blood in the car after he crashed the car in the tree. So there's strong circumstantial evidence that at least one of these blows landed on his head or face.

[00:19:28] Speaker 05:
Let me just say as a hypothetical, and I'll tell you, that's my scorecard. But I don't know that I remember any case law where it's comparable. In other words, we typically look at the instruments used and decide whether that's forced, capable of causing death or serious injury. But I'm not so sure if someone swinging a baton in the dark or at least a very dark area, whether if one of those blows happens to land on somebody's head or face, that's the use of deadly force.

[00:20:00] Speaker 05:
Do we have any case law about that?

[00:20:03] Speaker 02:
Well, we have the Young decision, which talks about when it could be deadly force. But I think that's just in a much different context of a restrained or passive.

[00:20:11] Speaker 05:
I'm only suggesting that the use might depend on what Officer Olvera intended. Is that right?

[00:20:18] Speaker 02:
I think it can, Your Honor. And it's a difficult question with the use of the baton, because theoretically— It could be deadly force, but this is a dark situation, as you mentioned, and I think Judge Trump did a really good job in this decision of framing the issue, which is always what I think is most important in these things, and not too high an issue of generality as to.

[00:20:43] Speaker 02:
what clearly established law would need to be, which I think is what we're talking about here.

[00:20:47] Speaker 05:
I think opposing counsel's got that rule statement correct. We have said repeatedly, if somebody is subdued and there isn't a danger of a weapon, I don't think they can be using this degree of force, counsel. Do you think I've got that wrong?

[00:21:02] Speaker 02:
If someone is subdued and there's no chance of them using a weapon, I would agree that you cannot hit them with a baton, whether it would be intermediate force or deadly force.

[00:21:09] Speaker 05:
Okay.

[00:21:10] Speaker 02:
But that's not what we have in this case.

[00:21:11] Speaker 05:
Okay. So, yeah, I'm just trying to make sure I didn't misunderstand your suggestion of a rule statement. It sounds like I almost did. But we're on the same page now.

[00:21:20] Speaker 05:
Could you tell me, is it Officer Olvera's continued position that there isn't evidence of a baton strike to the head or face?

[00:21:32] Speaker 02:
Your Honor, I would say that defendant Olvera's position is that Planets have not created a genuine issue of material fact as to whether there's they haven't met the burden to show that there's evidence of a baton strike to the head, neck or face.

[00:21:47] Speaker 05:
Why not?

[00:21:49] Speaker 02:
Because they haven't.

[00:21:50] Speaker 05:
He's got the wounds that, you know, the broken teeth that welt on the face and there's no blood in the car.

[00:21:55] Speaker 02:
And again, I don't want to. argue the facts and the evidence with you, Your Honor, but to go back to his deposition, which, by the way, was a very interesting deposition, as you can imagine.

[00:22:04] Speaker 05:
But answer the question first. I agree there's interesting, but if you could stay on the question.

[00:22:10] Speaker 02:
The standard, Your Honor, is that he's only speculating. He's just looking at the evidence like the rest of us.

[00:22:14] Speaker 05:
That's strong circumstantial evidence. It reminds me of the law school example of, you know, is it snowing outside? Did it snow last night? He's got these – there's no indication that he had broken teeth at the start of this chase, right?

[00:22:25] Speaker 02:
Well, the difference is that in this case, there's a snow machine that could have made the snow outside, Your Honor, because he ran into a tree.

[00:22:32] Speaker 05:
Yes, but there's no blood in the car, right? And we have photos, and there's no indication that there was any – He was bleeding pretty – we can see that in the photos. He was significantly bleeding after these injuries were inflicted, and I don't see anything. And there's a white interior inside the car.

[00:22:50] Speaker 02:
Your Honor, I don't want to argue the evidence and the facts with you, but I would go back to Judge Trump's.

[00:22:55] Speaker 05:
definition of the clearly established law that she was looking for um and this is well before you do that i think they did and i'm trying to give you a chance to respond i think they did raise a material dispute effect about whether there was a baton blow to the head council and i just want to make sure that i get i have the benefit of of officer alvera's counsel giving me your response about the legal significance of that the legal significance is that

[00:23:21] Speaker 02:
Even if that happened, defendant Olvera should be entitled to qualified immunity in this case because on page 1159 of Judge Traum's reported decision. She defines the issue of what she needs to see as clearly established law, what the issue here is in this case. And it goes back to what I was saying at the very beginning. That's the totality of the circumstances. You take into account the chase, the fact that he's in a confined area with this suspect who's just escaped a car, has manifested his intent to potentially injure, to do whatever he needs to do to get out of this situation.

[00:23:56] Speaker 02:
As Judge Traum says... The relevant question here is, quote, whether clearly established law prevented a reasonable officer from concluding that Smith posed an immediate threat to the safety of that officer, that Smith was engaging in a serious crime, or that Smith was fleeing. And based on the totality of the circumstances, I think we can answer those questions in favor of defendant Olvera, and he should be entitled to qualified immunity here, and we would request that the panel affirm.

[00:24:22] Speaker 04:
I have a question about this. So, If we were to conclude that a jury could find that Mr. Smith was hit on the head with the baton and the officer Olvera intended to hit him on the head, do you think that the law is clearly as to, and I guess we need one, a third fact, a third fact is that Mr. Smith was not resisting.

[00:24:47] Speaker 04:
If we were to conclude that a jury could reach those three facts and Is the law clearly established such that you don't get qualified immunity for summary judgment?

[00:24:58] Speaker 02:
No, Your Honor. There's not a case on point. And to go back to the intent question.

[00:25:02] Speaker 04:
So why isn't there? Because, again, I've established the person is not resisting and the person has received deadly force.

[00:25:13] Speaker 04:
In the hypothetical. Why isn't that established?

[00:25:16] Speaker 02:
Um.

[00:25:17] Speaker 02:
Because the relevant question is whether a reasonable officer in those situations would perceive it, not whether there is the underlying constitutional violation that a reasonable jury could differ on. And in this case, you're going to need clearly established law on the exact issue that Judge Traum correctly decided that I just read to the court. And that would be.

[00:25:37] Speaker 04:
Would that ever be a jury question? Would you ever ask the jury, you know, you heard the testimony of the officer and the plaintiff, and do you think that the officer reasonably understood that he was or reasonably realized that he was surrendering?

[00:25:54] Speaker 02:
That's an interesting procedural question, Your Honor. In some cases, we can have qualified immunity issues that go to the jury, but they don't really get phrased in that kind of a way. So I don't think the jury question would be exactly what you've just put out there. But here, qualified immunity is an immunity from suit.

[00:26:11] Speaker 04:
No, I understand that, but I'm aware that these go to the jury sometimes. And so if this went to the jury, how would the question be phrased?

[00:26:20] Speaker 02:
Well, the jury's going to need to decide the underlying facts that would go to the qualified immunity question.

[00:26:30] Speaker 04:
But you've just argued that for qualified immunity, it's about the officer's perception. I think that that's correct. So how do you present that to the jury?

[00:26:40] Speaker 02:
I think we would probably need to spend some time with Judge Schramm examining exactly what the facts that would lead to the officer's perception would be. And there would be specific jury questions that got hammered out on those issues. And I apologize for weaseling out of that question, Your Honor, but I think that's a difficult question. It would really depend on a lot of factors that go to – whether the jury is deciding issues that would lead the court to then decide the issue of qualified immunity or not, and what exactly those issues would be.

[00:27:11] Speaker 02:
So I'm not entirely sure how to answer that question.

[00:27:17] Speaker 05:
Thank you for your argument.

[00:27:19] Speaker 02:
Thank you.

[00:27:30] Speaker 01:
Good morning. May it please the court? Rachel Averitt-Talkington for the appellant. I have three points I'd like to make on rebuttal, Your Honors. But first, I want to begin by making a comment. Judge Forrest, your hypothetical on the set of facts that a jury could find is exactly what the district court should have looked at here when looking for a clear statement of the law. Because a reasonable jury could find every one of those facts you just discussed.

[00:27:52] Speaker 04:
But I think, I mean, yeah, maybe so. I mean, I'm still thinking about it. Some of those facts I definitely think the jury reasonably could find, whether the whole list I'm still thinking about. But your friend points out that for qualified immunity, it's also about the officer's perception. It's not about what the jury ultimately would find was the circumstances, right? It's like, what does the officer understand is happening? This is a short time period. We're talking about less than a minute or something when he was all by himself with Mr. Smith.

[00:28:23] Speaker 04:
We're talking about a lot of adrenaline following this pretty dramatic experience, right? So we have to think about all of those things. And the question is, are the factual issues here so unsettled that we can't apply our case law to know what's clearly established and what isn't?

[00:28:44] Speaker 01:
No, Your Honor, and that's the first point I wanted to make, which is to address the totality analysis. Here, this court has clearly established that a suspect's prior violent crimes, even if they've occurred just moments before the officer arrives... do not justify deadly force against that person if they're indisputably not engaged in that conduct.

[00:29:04] Speaker 04:
The reason I think that that's a hard argument for you here is because I agree with Judge Kristen. What she said earlier is this is a hard case. This isn't an easy case. And sometimes we get factual circumstances where it's pretty obvious. That an officer really should have recognized that something shifted, something changed, right? Like I don't have a circumstance off the top of my head, but I've seen those fact patterns where it's like it's just unreasonable for you as the officer not to shift gears because something has changed. And here, like, can we say that as a matter of law?

[00:29:36] Speaker 01:
Yes, Your Honor, and that's because I would direct this court to the Supreme Court's decision in Toland v. Cotton, where they instruct that even when looking for a clear statement of the law, again, on summary judgment, all facts must continue to be viewed in Mr. Smith's favor. And so here, what Officer O'Beir was confronted with was a suspect who was kneeling on the ground, who had his hands in the air. And we're not just asking the court to just look at that freeze frame. Throughout their encounter, there were other opportunities for Olvera to reassess his force, and I'm thinking specifically of After the video cuts out at around minute 625, Officer Olvera says, put your hands behind your back.

[00:30:14] Speaker 01:
And Mr. Smith says, they are behind my back. So at this point, again, this is several seconds after he's already begun to beat Mr. Smith. For purposes of summary judgment, we have to consider that Mr. Smith was on the ground and had his hands behind his back. And in that moment, that is clearly established to be unconstitutional.

[00:30:33] Speaker 05:
And given you the constitutional problem. The question is the qualified immunity prong. So we're looking to see what officer, you know, is there something, some case law out there that would have put any officer in his position on notice? So what would be wrong with an instruction to the jury following up on Judge Forrest's hypothetical to say if you find, they will have seen all of the evidence, right, in this hypothetical, if you find that Mr. Smith had surrendered, then at that point, any additional use of intermediate or deadly force is excessive.

[00:31:08] Speaker 05:
Any officer would have known that. What would be wrong with that type of instruction to a jury in this case?

[00:31:14] Speaker 01:
I don't believe we have any issue with that type of instruction. It's our contention that a jury could find he did surrender, and that after that point, you're exactly right. The case law does clearly establish that any continued use of intermediate force would be unconstitutional.

[00:31:27] Speaker 05:
Here's the problem. This is what I said at the top of the hour, and I'm sorry to tell you I saved the hardest question for you, although your co-counsel did a great job, too. So I'm sure you're up to the challenge because you're both really well prepared, and we appreciate that very much. But I think that's right. I think that, for me, the hard part is what I think is the universal gesture of surrender. But at the deposition, you know this already. On ER 171, the question was, do you understand how a reasonable officer approaching you from the back could be concerned that you might be going for some type of weapon.

[00:32:00] Speaker 05:
And the response from Mr. Smith was, absolutely. I'm not like you said. And then he says, I mean, it was dark. It was 2 o'clock in the morning, you know, so I don't know. And so, you know, if we go back to the Chambers factors, the very most important thing was, was there really a danger? And if this officer...

[00:32:18] Speaker 05:
still thought that Mr. Smith, you know, he didn't know Mr. Smith had these physical disabilities yet. He didn't know one way or another about the weapon. His police report says, I thought his hand was going close to his waistband. So even though he's done this international, what I think of as a sign of surrender, then there's this deposition answer from Mr. Smith. How do you respond to that?

[00:32:45] Speaker 01:
I see that I'm out of time. May I ask a question?

[00:32:48] Speaker 01:
First of all, Your Honor, in his deposition, he does say that. And I believe that that's primarily based on the fact that he later goes on to say he was wearing baggy clothes. But, of course, that's not the constitutional law that a reasonable officer should know about confronting a suspect who potentially has a weapon. It is not enough to use deadly force against them just because they may have a weapon. Like you said, it's the threatening gesture. And here on summary judgment, we believe a jury could find he did not make any movement towards his waistband because I'd point to Cruz v. City of Anaheim where the suspect was unarmed.

[00:33:22] Speaker 05:
But we don't have conflicting physical evidence like we had in Cruz. Not in this case. I don't see it.

[00:33:27] Speaker 01:
Well, Your Honor, I'm pointing to Cruz for the idea that a jury could find a suspect didn't reach for his waistband because he was unarmed. And that's circumstantial evidence that that movement didn't occur. And that's the same thing here because Mr. Smith, as we know now, was unarmed.

[00:33:42] Speaker 05:
This officer can be wrong.

[00:33:44] Speaker 05:
He just can't be unreasonable. We don't expect perfection of officers in this kind of heat of the moment, particularly after this kind of a high-speed chase. So that's my word. But parts of it were high speed, the very reckless lead up.

[00:33:58] Speaker 05:
And so he can be wrong. The question was, was he unreasonable in perceiving that there was a risk of a weapon?

[00:34:04] Speaker 01:
Yes, Your Honor. Again, here, because of that symbol of surrender with his empty hands and viewing the facts in Mr. Smith's favor, going down on the ground when he was told to get down on the ground, putting his hands behind his back when he was told to put his hands behind his back, all of that, a reasonable officer would not assume that that suspect is threatening him with a weapon.

[00:34:23] UNKNOWN:
All right.

[00:34:23] Speaker 05:
Is there anything further? No. No, I don't think there is. We want to thank all of you for your strong advocacy. It's an important case, and we'll give it our full attention. We'll take another advisement and go to the last case on the argument calendar for the day. I want to thank all the participants in the pro bono clinic.