[00:00:03] Speaker 05:
All right, while counsel are getting settled, I'll call the next case.

[00:00:08] Speaker 05:
It's Burke versus Pitts, number 24, 5134.

[00:00:12] Speaker 05:
Mr. Wood?

[00:00:52] Speaker 02:
May it please the court.

[00:00:55] Speaker 02:
My name is Scott Wood.

[00:00:56] Speaker 02:
I'm from Tulsa, Oklahoma, and I am here representing the appellants in this case.

[00:01:03] Speaker 02:
Jessica Pitts, police officer from the city of Bartlesville, Oklahoma.

[00:01:09] Speaker 02:
Officer William Lewis, also with the Bartlesville Police Department and the city of Bartlesville.

[00:01:18] Speaker 02:
This case arises out of

[00:01:23] Speaker 02:
What I've said too many times from this podium, a tragic shooting when a family member calls the police for help with a family member.

[00:01:35] Speaker 02:
In this case on June 1st of 2019.

[00:01:40] Speaker 02:
Mr. Willis Gay, the father of Thomas, who's the decedent in this case, called the Bortlesville police because he was concerned about his son.

[00:01:50] Speaker 02:
He thought he was high on something, and he wanted him removed from his house.

[00:01:57] Speaker 05:
Counsel, if you don't mind, I think the panel's read the briefs and has the factual scenario.

[00:02:05] Speaker 05:
And I think I'd like to jump in with a question.

[00:02:08] Speaker 05:
Okay, I appreciate that.

[00:02:10] Speaker 05:
I'd like to interrupt, but we only have 15 minutes.

[00:02:13] Speaker 05:
Sure.

[00:02:14] Speaker 05:
And I had a question about the first part of your brief addressing the scope of our jurisdiction.

[00:02:22] Speaker 05:
Yes.

[00:02:23] Speaker 05:
And you argue the district court did not apply the objective reasonableness standard in that section of your brief.

[00:02:32] Speaker 05:
And I just need some clarification, because in making that argument,

[00:02:38] Speaker 05:
Are you making it in connection with the court's jurisdiction?

[00:02:42] Speaker 05:
In other words, are you saying the court legally erred in route to making a factual determination?

[00:02:48] Speaker 05:
Yes.

[00:02:49] Speaker 05:
Or because I thought maybe you were also saying that the court legally erred in applying the grand factors to the facts that the district court had determined.

[00:03:02] Speaker 05:
Both of those.

[00:03:04] Speaker 05:
OK.

[00:03:04] Speaker 05:
They're both in there.

[00:03:05] Speaker 05:
Yes.

[00:03:06] Speaker 05:
All right.

[00:03:08] Speaker 05:
You didn't address the Graham factors, though, at least one by one, until pages 17 and 18 of your reply brief.

[00:03:20] Speaker 05:
So my question is whether the estate has satisfied, whether you're saying the estate has satisfied prong one when you didn't make the argument, or whether it's been waived.

[00:03:33] Speaker ?:
Yeah.

[00:03:33] Speaker 02:
Our position is they did not satisfy prong one because of their errors that they made in coming to factual determinations.

[00:03:44] Speaker 02:
Not going to argue the facts, but they misapplied

[00:03:47] Speaker 02:
some of the facts of the case, especially with regard to the second step of the Graham analysis, the immediacy or degree of threat posed in the analysis under Larson.

[00:04:04] Speaker 02:
So from that standpoint, for instance, I think one of our biggest points is that the court failed to consider the perspective of the officer, which our jurisprudence precedent in the Tenth Circuit says must be considered in a case like this.

[00:04:27] Speaker 02:
It is true that the court alternatively refers to this as a check the well-being call, but later in the opinion says he was a nonviolent misdemeanor until the fight starts.

[00:04:46] Speaker 02:
We would admit that prong one of the Graham analysis is in favor of the plaintiff.

[00:04:52] Speaker 02:
It's a low trespassing at your relative's house is not a serious crime.

[00:05:01] Speaker 02:
However, after this war deal started and Officer Lewis tried to take

[00:05:09] Speaker 02:
Mr. Thomas Gay into custody or at least get him detained.

[00:05:15] Speaker 02:
I don't think Lewis testified his plan was to detain him and then figure out what's going on.

[00:05:22] Speaker 04:
But now we're in heavy, heavy end of facts and we're heavy end of factual disputes and there are two sides to the story.

[00:05:29] Speaker 04:
You can't say the officers were supposed to look at their objective

[00:05:33] Speaker 04:
encounter or the view of the encounter, taking all of their facts is true.

[00:05:38] Speaker 04:
That's not how the standard works.

[00:05:40] Speaker 02:
I totally understand that.

[00:05:41] Speaker 04:
Okay, and so the district court went on and was pretty specific as far as the evidence that the state could rely on, with there being a living witness, really, who could counter some of the things that the officers were saying.

[00:05:56] Speaker 04:
And then I think properly said, if there's this dispute on these facts and the jury could rely on the facts that the estate has, then it goes to the jury.

[00:06:07] Speaker 04:
And then next question is, do we have any business even being involved in that under Johnson versus Jones?

[00:06:15] Speaker 02:
Well, I think if you wrote our brief and understand how the court misapplied two different things, the analysis of the perspective of the officer, and then secondly, the bullet trajectory, I think, is evidence that is uncontrovertible.

[00:06:39] Speaker 02:
But yet the court found that

[00:06:43] Speaker 02:
a jury could find that Mr. Guy was simply trying to leave the room.

[00:06:46] Speaker 03:
But if we're talking about we have jurisdiction, which means that you've now, to get to your challenges on the merits of the Graham Factors, assuming that argument isn't waived on appeal,

[00:06:59] Speaker 03:
We now accept the district court's findings and the district court's conclusions about what a jury could find.

[00:07:06] Speaker 03:
Did you agree?

[00:07:07] Speaker 02:
I agree, unless it's contradicted by the record.

[00:07:09] Speaker 03:
Let's assume that we would reject those arguments just for a moment, and we proceed on the understanding with the facts as found by the district court.

[00:07:17] Speaker 03:
You know, in footnote one of the appellee's brief, they say, if defendants did concede the most favorable view, they would be conceding that Officer Pitts shot an unarmed and non-threatening man in violation of his Fourth Amendment rights.

[00:07:30] Speaker 03:
I mean, do you agree that that's our point of departure for engaging in the Graham analysis as an abstract legal question, which is all we have jurisdiction to do?

[00:07:39] Speaker 02:
I would agree with that and then rely on what I'll call my ace in the hole and that is the errant qualified immunity analysis done by the court on the second prong.

[00:07:54] Speaker 03:
On the second prong?

[00:07:55] Speaker 02:
Yes.

[00:07:56] Speaker 05:
Well, before we leave the first prong, I mean, I guess I'm going to come back to this sort of

[00:08:04] Speaker 05:
two-part argument that you seem to be making, which is you want us to review

[00:08:13] Speaker 05:
some of the district court's factual determinations under the exceptions to the general rule that on interlocutory appeal, we only take it.

[00:08:22] Speaker 02:
We're not taking issue with all of them.

[00:08:24] Speaker 02:
No, I understand.

[00:08:25] Speaker 05:
But you mentioned this trajectory.

[00:08:27] Speaker 05:
So that's one of them, right?

[00:08:28] Speaker 05:
You're saying that the autopsy report blatantly contradicts the district court's findings.

[00:08:35] Speaker 05:
But does it blatantly contradict?

[00:08:39] Speaker 05:
How does it blatantly contradict?

[00:08:41] Speaker 02:
Well, if you look at the entire record,

[00:08:43] Speaker 02:
This conflict took place in a small bedroom.

[00:08:48] Speaker 02:
If I'm standing at the door to the bedroom, there's a small closet with sliding doors.

[00:08:53] Speaker 02:
It's just to the left.

[00:08:56] Speaker 02:
That's where Officer Pitts went.

[00:09:00] Speaker 02:
Officer Lewis entered the room, and Thomas would be somewhere in the middle, and Mr. Gay is over here on the far side of the room.

[00:09:11] Speaker 02:
Now when I say the far side, I mean, the bedroom's like 10 by 12.

[00:09:16] Speaker 02:
It's extremely small if you look at a picture in the record.

[00:09:20] Speaker 02:
So after they are in there, Officer Pitts gets knocked down, falls back into the closet.

[00:09:32] Speaker 02:
And that is when she's getting back up, when she sees

[00:09:37] Speaker 02:
something black in Mr. Thomas Gaye's hands and decides it's a gun.

[00:09:45] Speaker 02:
She believes it's a gun and makes a split second decision to shoot.

[00:09:51] Speaker 02:
And she fires one round and he goes down on a knee briefly and then comes back up and then she shoots again.

[00:09:59] Speaker 02:
Mr. Gaye maintains and the estate maintains that he was only trying to leave the room.

[00:10:08] Speaker 02:
Well, if he was going to leave the room and Pitts is over here and she shoots Mr. Gay or Thomas Gay here, the trajectory is going to be leftward.

[00:10:22] Speaker 02:
That's not what the autopsy says.

[00:10:23] Speaker 02:
The autopsy says the bullet trajectories were straight ahead.

[00:10:28] Speaker 02:
Now, one of them was downward, which would have meant that Thomas Gay was leaned over as he was coming towards Officer Pitt.

[00:10:38] Speaker 05:
I mean, I don't want to have you take too much of your time on this, but just one last thing on that.

[00:10:45] Speaker 05:
Was there any diagram in the autopsy report?

[00:10:49] Speaker 02:
There was.

[00:10:50] Speaker 02:
They showed the placement of the bullet entry wounds on a body diagram, and then the trajectory of the wound is described.

[00:11:00] Speaker 02:
And that's in the record?

[00:11:01] Speaker 02:
It is.

[00:11:02] Speaker 02:
OK.

[00:11:02] Speaker 02:
Yeah.

[00:11:03] Speaker 02:
So are we done with that?

[00:11:08] Speaker 02:
I think we're done with that.

[00:11:12] Speaker 04:
What else do you have on blatantly contradicted and anything else?

[00:11:16] Speaker 02:
Well, small things like the court finding that this was a call, check the well-being call, what was clearly something else.

[00:11:33] Speaker 02:
He wanted his son removed from his house.

[00:11:36] Speaker 02:
When you're someplace and the owner didn't want you there, that's trespassing.

[00:11:41] Speaker 02:
So the other thing that comes to mind is when they were, the court describes the rapidity with which this entire event occurred.

[00:11:54] Speaker 02:
I think at one point they say it's 200 seconds or something like that.

[00:12:00] Speaker 02:
And say that the officers rushed,

[00:12:05] Speaker 02:
into the house and confronted Thomas Gay.

[00:12:09] Speaker 02:
And that's just simply not true.

[00:12:10] Speaker 02:
It's not worn out by the record.

[00:12:12] Speaker 02:
Mr. Gay had the key since Thomas had locked all the doors to the house.

[00:12:17] Speaker 02:
He had a key to get them in.

[00:12:18] Speaker 02:
He let, they don't know where to go.

[00:12:21] Speaker 02:
He led them into the garage, up some steps into a kitchen and into the living room where they encounter Thomas Gay.

[00:12:31] Speaker 02:
He's on the far side of the room and in his interview with the OSBI, Willis Gay says, the officer started trying to talk to him.

[00:12:41] Speaker 02:
Now, every witness in that room saw Thomas Gay holding something, but it was something other, everyone had a different take on what it was.

[00:12:53] Speaker 02:
Lewis thought it was some kind of bow with regalia on it.

[00:12:57] Speaker 02:
Mr. Willis Gay testified that it was a ventriloquist dummy, and Jessica Pitt said it was something else.

[00:13:05] Speaker 02:
But anyway, he was ordered to drop whatever it was, and then

[00:13:10] Speaker 02:
the rapidity or the rapidly evolving part of this begins.

[00:13:14] Speaker 02:
So the court's characteristic of them rushing into the house and confronting Thomas Gaye and yelling at him is just completely not true and not supported by the record.

[00:13:27] Speaker 02:
And that becomes important when we go to the qualified immunity analysis.

[00:13:31] Speaker 03:
Counsel, may I ask you about sort of the bookend to Judge Phillips's question?

[00:13:36] Speaker 03:
So you have two ways to establish a public jurisdiction, which is very limited in interlocutory appeals.

[00:13:41] Speaker 03:
You were talking about facts that are blatantly contradicted.

[00:13:45] Speaker 03:
I had a challenging time discerning from your brief what you were contending was the legal error en route to the factual determination.

[00:13:54] Speaker 02:
Not considering Officer Pitt's perspective.

[00:13:58] Speaker 03:
And is that it?

[00:13:59] Speaker 02:
Yes.

[00:14:02] Speaker 02:
I only have a short time, so I'll wrap this up quickly.

[00:14:08] Speaker 02:
None of the cases that were cited either by the court or by plaintiff with regard to pre-existing established law fit the facts of this case.

[00:14:22] Speaker 02:
None of them do.

[00:14:23] Speaker 03:
Why wouldn't Garner be sufficient here to provide the clearly established law, Garner itself?

[00:14:27] Speaker 02:
I'm sorry?

[00:14:28] Speaker 03:
Why wouldn't Garner itself, our main cases on this, if we take the facts as the district court found them, an officer can't use deadly force against a suspect absent probable cause to believe the suspect poses a threat of harm.

[00:14:41] Speaker 03:
So if we take the facts as found by the district court, I mean, that is black letter, well established law, even in a clearly established context where we need a case on all fours, that seems to fit, doesn't it?

[00:14:54] Speaker 02:
Our courts have repeatedly stated that general statements of the law are not inherently incapable of giving fair and clear warning, but must be applied

[00:15:10] Speaker 02:
in light of the specific context.

[00:15:12] Speaker 02:
And none of the cases cited by the court or the plaintiffs, Finch, Zuckel, Ziatrust, Walker, King versus Hill, Huff, are even remotely similar to the facts of this case.

[00:15:28] Speaker 04:
Do you agree that if the facts were such as the estate presents them, that there would be a claim?

[00:15:35] Speaker 02:
There could be.

[00:15:37] Speaker 02:
But if you take the facts as they are right now by the judge and use those, they still don't meet the preexisting law standard requirement.

[00:15:47] Speaker 05:
Let me just ask you on point two.

[00:15:49] Speaker 05:
Are you making the argument about analogous cases being, or the cases that haven't cited, you're saying, well, they're too remote.

[00:16:00] Speaker 05:
In distinguishing those cases, are you using the facts that the district court

[00:16:06] Speaker 05:
determined that a reasonable jury could find, or using the facts that you're arguing the district court should have found?

[00:16:15] Speaker 02:
No.

[00:16:17] Speaker 02:
As it stands, if you take the district court facts,

[00:16:21] Speaker 02:
and use those for the qualified immunity analysis, they still don't reach the threshold of specificity that's required under that exacting standard.

[00:16:30] Speaker 04:
Why wouldn't Tenorio work, which says you have to be charging, the person has to be charging the officer?

[00:16:37] Speaker 04:
And there are the estate facts.

[00:16:40] Speaker 02:
Tenario nothing was going on the man simply entered the room and started a knife Right held down by his side walking towards them not charging

[00:16:56] Speaker 02:
And I think to me, a former police officer, I wouldn't like that scenario.

[00:17:03] Speaker 02:
If people know that's how you can hurt a police officer, everyone would use it.

[00:17:07] Speaker 02:
Hold your gun gun by your side, put your knife for your baseball bat.

[00:17:10] Speaker 04:
And yet the majority said what the majority said.

[00:17:14] Speaker 02:
Right.

[00:17:15] Speaker 02:
We don't have that kind of conflict in this case.

[00:17:20] Speaker 04:
Well, there was more of a threat.

[00:17:22] Speaker 04:
My point is there's more of a threat in Tenorio than there was here using the estate's facts.

[00:17:27] Speaker 04:
And it wasn't good enough in Tenorio.

[00:17:32] Speaker 02:
Judge, I can't agree with you on that simply because of the way things happened in the bedroom.

[00:17:41] Speaker 04:
You liken that to walking to them within two or three strides with a knife after being told to drop the knife several times with guns extended.

[00:17:53] Speaker 02:
Well, it became clear as soon as Officer Lewis tried to tase Mr. Gay that he was not going to submit to being taken into custody or detained.

[00:18:05] Speaker 02:
They go in there to do that and there is one hell of a struggle.

[00:18:09] Speaker 02:
Now the state downplays that.

[00:18:14] Speaker 02:
You know, the dad said in his interview, although the officers didn't hear it during the melee, that Mr. Gay, Thomas Gay yelled out, I'm going to kill you.

[00:18:26] Speaker 02:
And that he'd never seen his son in such a rage.

[00:18:29] Speaker 02:
That wasn't present in Tenoria.

[00:18:32] Speaker 04:
Well, the officers said they didn't hear anything like that.

[00:18:35] Speaker 02:
Yeah, which is common in a critical incident.

[00:18:38] Speaker 04:
That's what matters, right?

[00:18:40] Speaker 02:
It cooperates their statements about how intense the struggle was.

[00:18:46] Speaker 03:
I had one more question.

[00:18:49] Speaker 03:
We have two officers here.

[00:18:51] Speaker 03:
We have Officer Lewis, who used the Taser, and Officer Pitts, who used lethal force ultimately.

[00:18:57] Speaker 03:
Is there anything that we should be thinking about, specifically with respect to PRONG 2, specifically as to each officer?

[00:19:05] Speaker 03:
In other words, you're making sort of a collective argument about the officers, but is there anything about

[00:19:10] Speaker 03:
the clearly established law that we should be thinking about specifically as to each officer's actions here.

[00:19:16] Speaker 02:
As to Lewis, the court found that he did give a command in the living room before he used his taser.

[00:19:25] Speaker 02:
He had his taser out after Mr.

[00:19:29] Speaker 02:
Thomas Gaye refused to drop what was in his hand.

[00:19:34] Speaker 02:
And the cases cited by the court or by the estate that are tasing cases, a couple of them had no warning at all before the taser was used and were very different scenarios, not in a confined space or house like this one was.

[00:19:55] Speaker 02:
Thank you, counsel.

[00:19:56] Speaker 02:
Thank you.

[00:19:59] Speaker 00:
May it please the court.

[00:20:00] Speaker 00:
My name is Jack Warren and I represent the estate of Thomas Gay in this case.

[00:20:07] Speaker 00:
And I appear here to urge the court to affirm the district courts what we believe to be thorough, well-reasoned, I believe it was a 59 page opinion.

[00:20:20] Speaker 03:
So you think we have appellate jurisdiction?

[00:20:22] Speaker 00:
Wow, that's where I would like to start as well.

[00:20:25] Speaker 00:
I do not believe that, well, to the extent, it's unclear in their brief what they're, to me, what they're willing to concede factually and what they're not willing to concede factually.

[00:20:41] Speaker 00:
The majority of their brief, in my opinion, is challenging the district court's findings, in fact.

[00:20:48] Speaker 00:
And in doing that, I don't think that the court has any jurisdiction to do that.

[00:20:52] Speaker 03:
Well, we don't have jurisdiction unless they are able to satisfy the two exceptions to that.

[00:20:58] Speaker 03:
So what is your position on that?

[00:21:00] Speaker 00:
Yes.

[00:21:01] Speaker 00:
So the two exceptions that they've cited, I'd start first with the blatant contradiction.

[00:21:07] Speaker 00:
First, I think the court's clear that that's a very high standard.

[00:21:12] Speaker 00:
It has to be essentially a visible fiction that's not supported anywhere in the record.

[00:21:17] Speaker 00:
And my reading of their brief is that they take a position that the court

[00:21:27] Speaker 00:
Thomas's path in the bedroom is blatantly contradicted.

[00:21:31] Speaker 00:
And to me it's unclear why that would be blatantly contradicted because the testimony is clear that Willis Gay, Thomas's father who's standing at the door of the bedroom, consistently said that Thomas was trying to run towards him.

[00:21:45] Speaker 00:
Whereas Officer Pitts says that he was trying to run towards her who was in the left side of the bedroom if you're standing from the doorway.

[00:21:55] Speaker 00:
And the district court considered both facts, found it as disputed and considering that in the plaintiff's favor, said that a jury could certainly find that he was trying to get to the door to get out of the bedroom.

[00:22:09] Speaker 00:
I don't think that there's anything to suggest that it's blatantly contradicted or not supported in the record.

[00:22:17] Speaker 05:
In regards to the kind of moral...

[00:22:24] Speaker 05:
They're relying on this autopsy report, which you haven't addressed.

[00:22:28] Speaker 05:
So why don't you say something about it?

[00:22:31] Speaker 00:
Sure.

[00:22:31] Speaker 00:
So I think they're overstating the autopsy report.

[00:22:34] Speaker 00:
First of all,

[00:22:35] Speaker 00:
I think that if we're going to get into bullet trajectory and angles and whatnot, that really requires an expert to testify to that, which they don't have an expert.

[00:22:47] Speaker 00:
They're just reading an autopsy report that describes the bullet wound itself and a picture of the bullet wound.

[00:22:54] Speaker 00:
There is a bullet wound on Thomas's right leg, but there's, you know, you'd asked about a diagram.

[00:22:59] Speaker 00:
There's a picture of his leg, but there's not a diagram showing where the bullet entered or how the bullet entered.

[00:23:04] Speaker 00:
That's what I was getting at.

[00:23:06] Speaker 00:
Yes, there's not a diagram showing that path or angle of the bullet.

[00:23:11] Speaker 00:
And the fact of the matter is, whether Thomas was running to the door or running at Pitts, Pitts would have been on his right side and been able to shoot his right leg.

[00:23:22] Speaker 00:
That is not a blatantly contradiction.

[00:23:27] Speaker 00:
That's not a visible fiction, that one

[00:23:30] Speaker 00:
you know, circumstantial fact.

[00:23:32] Speaker 00:
Now, again, that's a fact that a jury may disagree with, but that's for a jury to decide.

[00:23:38] Speaker 00:
And the court found that there was evidence to support an alternative conclusion.

[00:23:43] Speaker 05:
Anything else on blatant contradiction?

[00:23:46] Speaker 00:
No, Your Honor.

[00:23:47] Speaker 00:
Just generally that I think the court recently in Ellis v. Salt Lake had said that the blatant contradiction generally applies to

[00:23:53] Speaker 00:
evidence like videos and obviously there is no video here.

[00:23:56] Speaker 00:
I don't think that the evidence that the defendants are relying on

[00:24:02] Speaker 00:
is the kind of evidence that the court generally uses or relies on when considering a blatant contradiction.

[00:24:09] Speaker 00:
In regards to the considering the facts from an objective officer, meaning Officer Pitts, really the way I see the way that the defense have argued this is essentially that the only person's perspective that matters or opinions about the case that matters is the officer that is involved in the shooting.

[00:24:28] Speaker 05:
While I agree that, of course, the Council... My understanding from Mr. Wood a few minutes ago is that they're not necessarily making a factual argument in terms of objective reasonableness.

[00:24:47] Speaker 05:
they're making an argument that the district court erred by failing to apply the correct standard, which is objective reasonableness.

[00:24:58] Speaker 05:
So if it's just a legal argument, doesn't that remain in our appellate jurisdiction?

[00:25:06] Speaker 00:
I don't know that I, that's the reading I took of their argument, at least in the briefing.

[00:25:11] Speaker 00:
In the first part of their brief where they're addressing the facts of the case and taking issue with it, they continuously referenced that the district court made a legal error in concluding on the facts.

[00:25:26] Speaker 05:
Well, I understand exactly what you're talking about.

[00:25:29] Speaker 05:
That's why I asked the question right out of the chute.

[00:25:32] Speaker 05:
which is what are they really arguing in that part of their brief?

[00:25:36] Speaker 05:
And he said they're arguing both, that they're arguing these exceptions in terms of looking at district court facts, blatant contradiction, error in route two.

[00:25:48] Speaker 05:
but also arguing apply the wrong legal standard.

[00:25:52] Speaker 05:
Now, you may disagree with that second argument, but that doesn't sound like a fact argument.

[00:25:57] Speaker 05:
It sounds like a legal argument that we would have jurisdiction to review.

[00:26:01] Speaker 05:
So what do you say about that?

[00:26:02] Speaker 00:
I would agree with that if the defendants had argued that.

[00:26:06] Speaker 00:
The objective standard comes from the Graham case, obviously.

[00:26:11] Speaker 00:
As you referenced earlier, there's no discussion of Graham in their brief.

[00:26:15] Speaker 00:
They're not.

[00:26:16] Speaker 05:
Well, that's another problem.

[00:26:18] Speaker 05:
But I think the line of questioning you've been getting so far is just to determine, are we in business jurisdictionally at this point on prong one?

[00:26:36] Speaker 00:
Sure.

[00:26:37] Speaker 00:
And again, I don't think we're in business on prong one jurisdictionally.

[00:26:41] Speaker 00:
At all.

[00:26:42] Speaker 00:
At all.

[00:26:43] Speaker 00:
Because in arguing that they didn't consider the perspective of Officer Pitts, that's reliant on Officer Pitts's perspective that Thomas Gaye was armed or presented some kind of black object, and that he was approaching her.

[00:26:58] Speaker 00:
Their argument that the court erred by not considering her opinion, objectively or not,

[00:27:06] Speaker 00:
is hinges on those two findings.

[00:27:09] Speaker 05:
Well, I actually expected you to say something a little different, which is that why wouldn't you be arguing that the district court did consider her perspective along with the rest of the evidence?

[00:27:20] Speaker 00:
Well, I want to say I do think the district court did.

[00:27:23] Speaker 00:
Now, I'm talking jurisdictionally.

[00:27:25] Speaker 05:
Well, so am I. But they're arguing that the court legally erred because they didn't consider her perspective at all.

[00:27:36] Speaker 05:
My question to you is, well, is that right?

[00:27:38] Speaker 05:
I mean, did the district court consider the officer's perspective?

[00:27:42] Speaker 05:
I mean, why wouldn't the district court consider the officer's perspective?

[00:27:44] Speaker 00:
Yes.

[00:27:45] Speaker 00:
So moving to whether the district court actually did consider it, taking aside the jurisdictional issue, yes, of course I think the district court addressed the objective perspective.

[00:27:57] Speaker 05:
So you're saying the district court did not legally err?

[00:28:00] Speaker 00:
The district court did not legally err in applying the grand factors objectively.

[00:28:04] Speaker 00:
Yes, that is absolutely our position.

[00:28:07] Speaker 05:
I don't want to argue the case for you, but I just want to make sure I understand what it is.

[00:28:12] Speaker 03:
And just to clarify, in either way, didn't err en route to making

[00:28:17] Speaker 03:
and incorrect factual determinations.

[00:28:19] Speaker 03:
In other words, the argument concerning the failure to consider the perspective of the officer didn't compel the court to make a factual misstep, correct?

[00:28:29] Speaker 03:
Correct.

[00:28:29] Speaker 03:
That's your argument.

[00:28:30] Speaker 00:
That is my argument.

[00:28:31] Speaker 00:
My argument is that to consider the evidence from an objective officer, you have to consider all of the facts of the incident.

[00:28:38] Speaker 00:
That could include facts that are not from the officer and are from other people.

[00:28:41] Speaker 05:
Let me ask you about some facts that I don't think are in dispute and how they factor in.

[00:28:47] Speaker 05:
Isn't it undisputed that Mr. Gaye pushed Officer Lewis?

[00:28:53] Speaker 00:
Yes, it is undisputed that after the fourth TASER deployment in the bedroom,

[00:29:00] Speaker 00:
immediately prior to Pitt's shooting, that Officer Lewis had attempted to tase him manually, and Thomas had pushed and attempted to run.

[00:29:08] Speaker 05:
All right.

[00:29:08] Speaker 05:
And also, isn't it undisputed that Mr. Gay was, there's this reference that he was in a quote unquote, rage?

[00:29:18] Speaker 00:
So it is, I think there's some nuance there.

[00:29:24] Speaker 00:
The defendants are attempting to act like Thomas was in a rage throughout the entire incident.

[00:29:29] Speaker 00:
But when the officers initially encounter Thomas, he's non-verbal.

[00:29:32] Speaker 00:
He's standing there not doing anything.

[00:29:35] Speaker 00:
when the rage starts, or when Willis, the father, talks about that, is by the time he's in the back bedroom and has been tased four times.

[00:29:42] Speaker 00:
At that point, there is certainly at least an argument that he was in some sort of rage or anger, sure.

[00:29:51] Speaker 00:
But again, that kind of goes back to the force issue, or the creating the need to use the force.

[00:29:56] Speaker 05:
Well, if you build those facts, though, into the Graham analysis,

[00:30:02] Speaker 05:
understanding nuance, but if you've got pushing and rage, why wouldn't it be reasonable for the officers to view Mr. Gay as threatening or maybe even resisting or evading arrest?

[00:30:17] Speaker 00:
Well, I mean, so I guess what I would say is even considering giving them the biggest benefit of the doubt that Thomas was in some kind of rage.

[00:30:28] Speaker 00:
I mean, first of all, it did happen so quickly, it's hard to even

[00:30:33] Speaker 00:
point, that's a difficult thing to even grasp, but even if he was in some kind of rage and attempting to run, the question is, is what was the threat?

[00:30:43] Speaker 00:
Was it some kind of mortal threat?

[00:30:45] Speaker 00:
There was no allegation.

[00:30:46] Speaker 00:
that the officers arrived at the scene, that Thomas had done anything threatening.

[00:30:49] Speaker 00:
While Willis called and asked him to be removed and said he might be high on drugs, there was no claim that he had threatened anyone, that he had a weapon.

[00:30:58] Speaker 00:
In fact, he had told them specifically he didn't have a weapon.

[00:31:00] Speaker 00:
There was no claim that Thomas was verbally threatening anyone.

[00:31:06] Speaker 00:
Let's just say that him being upset and attempting to go towards the door posed some kind of threat.

[00:31:14] Speaker 00:
It certainly wasn't a mortal or serious danger to anything or anyone.

[00:31:20] Speaker 05:
What about on the first Larson factor relative to Officer Lewis?

[00:31:30] Speaker 05:
This really goes back to Judge Rossman's question about separating the officers out, one tased, one shot.

[00:31:37] Speaker 05:
Didn't the officers tell Mr. Gay to drop what he was holding and then he didn't comply?

[00:31:44] Speaker 05:
Why wouldn't that justify the tasing?

[00:31:47] Speaker 00:
So officer, the facts as determined by the court was that Officer Louis

[00:31:53] Speaker 00:
entered the living room, which was led by Willis, and that upon seeing Thomas, he said, hey, can you drop that?

[00:32:02] Speaker 00:
Thomas didn't do that.

[00:32:04] Speaker 00:
And according to Officer Pitts' testimony, seconds later it was Taser deployed.

[00:32:09] Speaker 00:
There was, while he did tell him to do something, sure.

[00:32:12] Speaker 00:
And I'm not necessarily going to argue that Thomas fully complied.

[00:32:15] Speaker 00:
Now there is also testimony in the record from Willis Gay that he had actually removed the item before this even happened.

[00:32:23] Speaker 00:
But the fact of the matter is, even if simply, let's just say that he, Lewis had said, drop what you're holding.

[00:32:35] Speaker 00:
seconds go by, Thomas doesn't do it, and he tases him.

[00:32:39] Speaker 00:
The facts of the court were that Thomas would at that point have been holding a ventriloquist doll or some kind of toy doll.

[00:32:46] Speaker 00:
While that may have been some level of resistance, it's hard to understand why a taser would have been the appropriate response to that resistance.

[00:32:54] Speaker 00:
It would have been an excessive response to some kind of passive resistance not to drop something that wasn't even a weapon.

[00:33:02] Speaker 00:
Right?

[00:33:03] Speaker 00:
While I agree that technically he did.

[00:33:07] Speaker 05:
Aren't we kind of back though to officer perspective?

[00:33:10] Speaker 05:
I mean, they come into a tense situation.

[00:33:12] Speaker 05:
They think he's holding something.

[00:33:14] Speaker 05:
They're not sure what it is.

[00:33:16] Speaker 05:
It could be innocuous.

[00:33:17] Speaker 05:
It could be dangerous, but we'll drop it.

[00:33:21] Speaker 00:
But I guess I would push back at why is it a tense situation?

[00:33:25] Speaker 00:
They've been told that Thomas won't leave.

[00:33:27] Speaker 00:
They haven't been told that he's threatening or that he's dangerous.

[00:33:30] Speaker 00:
They've been told he's unarmed.

[00:33:32] Speaker 03:
But he was a tall, big guy, sweating profusely.

[00:33:40] Speaker 03:
There were indicia, weren't there, for an officer to think that something is about to happen.

[00:33:47] Speaker 00:
Well, I mean, I guess you could say that in any encounter, I would say.

[00:33:51] Speaker 00:
If I encounter someone and they're larger than the officer.

[00:33:53] Speaker 03:
Well, I'm not just saying that.

[00:33:54] Speaker 03:
I'm saying in part of the totality wouldn't be...

[00:33:57] Speaker 03:
Do those factors influence a reasonable officer's behavior?

[00:34:02] Speaker 00:
So I would say that yes, they certainly could.

[00:34:06] Speaker 00:
But one of the key facts here is how quickly he tates him, right?

[00:34:11] Speaker 00:
Because this is a nonviolent, nonthreatening, not exigent circumstance,

[00:34:16] Speaker 00:
be to immediately resort to tasing, right?

[00:34:20] Speaker 00:
It would be one thing I would definitely agree if they had discussed with him multiple times, if they had asked him, if they said, hey, they hadn't even told him he was detained and custody.

[00:34:30] Speaker 05:
How do our cases that credit the need for split-second decision-making factor?

[00:34:37] Speaker 00:
Well, I so, you know, it's funny, I expected to address this because obviously the cases with the split second generally are saying, well, the officers have leeway, it's a split second decision, all these things.

[00:34:48] Speaker 00:
But part of our whole theory is that the speed at which this incident occurred was because of the officers.

[00:34:56] Speaker 00:
Thomas, there was not a, you know, in the cases that the court cited as clearly established, that the parties have tried to, that the defendants have tried to distinguish,

[00:35:05] Speaker 00:
The thing about those cases, which even supports our case even more, is they were all arriving at what was a tense or threatening or dangerous situation.

[00:35:15] Speaker 00:
Here, it was not tense or dangerous or threatening.

[00:35:18] Speaker 00:
They walked in and within seconds tased him, ran at him, and forced him, cornered him in his back bedroom, right?

[00:35:25] Speaker 00:
And so, like, I do agree that

[00:35:31] Speaker 00:
generally a tense, quick situation would favor the officers.

[00:35:35] Speaker 00:
In this situation it doesn't, particularly because Lewis was not in a tense situation when he tased Thomas.

[00:35:41] Speaker 00:
It was not a threatening, time, quick, exigent situation.

[00:35:45] Speaker 00:
Thomas was standing there doing nothing.

[00:35:46] Speaker 00:
He hadn't walked to the officers.

[00:35:48] Speaker 00:
He hadn't threatened the officers.

[00:35:50] Speaker 00:
He hadn't done anything besides simply stand there.

[00:35:54] Speaker 00:
So I see my time's up.

[00:35:56] Speaker 00:
I don't know if there are any further

[00:35:58] Speaker 05:
Well, can I just ask you on prompt to qualified immunity?

[00:36:03] Speaker 05:
What is your best published case for clearly established law on the taser and on the shooting?

[00:36:10] Speaker 00:
Well, I think there are, on the tasing, I guess I would just say that it's kind of some combination of the Kavanaugh and Lee case.

[00:36:24] Speaker 00:
And not specifically, you know, they talked about the warning.

[00:36:27] Speaker 00:
I think the warning is relevant because they didn't warn him that he was going to tase him.

[00:36:31] Speaker 00:
But I think it's clear that a non-threatening misdemeanor

[00:36:36] Speaker 00:
using a taser that quickly is a violation of the Fourth Amendment.

[00:36:40] Speaker 00:
On the shooting, I mean, Judge Rossman I think said it well from a bigger picture, assuming Thomas was unarmed and nonthreatening,

[00:36:51] Speaker 00:
I think it's clear in Tennessee v. Gardner.

[00:36:53] Speaker 00:
I think it's clear in Carr v. Castle that shooting a non-armed misdemeanor that poses no threat is a violation.

[00:37:01] Speaker 00:
I didn't hear that last one.

[00:37:03] Speaker 00:
Carr v. Castle, which cites Tennessee v. Gardner.

[00:37:06] Speaker 00:
Is that one in your brief?

[00:37:07] Speaker 00:
It is not on my brief.

[00:37:08] Speaker 00:
I'm just referencing that now.

[00:37:09] Speaker 00:
But as far as what is referenced there, I think it's pro- But that case is applying Gardner, right?

[00:37:16] Speaker 03:
Yes.

[00:37:16] Speaker 00:
Yes.

[00:37:17] Speaker 00:
I think it's probably Ceballos.

[00:37:21] Speaker 05:
I was just asking what you thought your strongest cases were.

[00:37:27] Speaker 05:
You do agree at this point, though, that the unpublished cases aren't going to get you there.

[00:37:31] Speaker 00:
So I don't necessarily agree with that.

[00:37:36] Speaker 00:
I agree that the unpublished cases cannot serve solely as clearly established law.

[00:37:40] Speaker 00:
I do think, though, based on the course precedent, that unpublished cases can support a finding of what the state of the law is.

[00:37:48] Speaker 00:
And so I do think that the unpublished cases

[00:37:50] Speaker 00:
If there were just unpublished cases, yes, I would agree.

[00:37:54] Speaker 00:
But I think the unpublished cases go to support the general state and condition of the laws that stands here in the district.

[00:38:01] Speaker 04:
Why aren't you relying on Tenorio and Baca?

[00:38:05] Speaker 00:
Well, so to be honest with you, I've been thinking about that when at the trial court level, we didn't as much because

[00:38:18] Speaker 00:
of the officer's dispute about what happened in the bedroom.

[00:38:24] Speaker 00:
It was more about the escalation at that point than shooting an unarmed, non-threatening misdemeanor.

[00:38:31] Speaker 00:
Because I do believe that particularly Vaca and Tenorio, I think they both very much apply here.

[00:38:39] Speaker 00:
I think that issue is so clearly established that

[00:38:48] Speaker 00:
under the state of the law, shoot, if Thomas was just simply running out of the bedroom with nothing in his hand, that that would be a, and like you said in scenario hadn't moved on to the officers and was unarmed, unlike most of the other cases, that it provides further support than even those cases had.

[00:39:08] Speaker 05:
Thank you, counsel.

[00:39:09] Speaker 05:
Thank you.

[00:39:11] Speaker 05:
You both went over a bit, so I think we need to conclude this argument and move on to the next one.

[00:39:17] Speaker 05:
The case will be submitted and counsel are excused.