[00:00:03] Speaker 01:
All right, thank you for your patience this morning.

[00:00:06] Speaker 01:
It's a full day.

[00:00:06] Speaker 01:
Our final case this morning is 24-2152 Fuqua versus Santa Fe County.

[00:00:17] Speaker 01:
Mr. Huss?

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

[00:00:30] Speaker 00:
Excuse me.

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

[00:00:30] Speaker 00:
May it please the Court.

[00:00:32] Speaker 00:
I'm Brandon Huss, and with me at Council table is David Roman.

[00:00:35] Speaker 00:
We're here representing Appellants Zook, Martinez, and Guzman in this matter.

[00:00:42] Speaker 00:
I'd like to frame the conversation this morning with a hypothetical, if the Court would indulge me.

[00:00:48] Speaker 00:
Imagine a scenario where a man enters a bank intent on committing a robbery.

[00:00:55] Speaker 00:
He has a gun.

[00:00:55] Speaker 00:
He goes inside.

[00:00:57] Speaker 00:
He starts the robbery.

[00:00:58] Speaker 00:
and somebody gets shot during the struggle.

[00:01:01] Speaker 00:
Robbery goes south.

[00:01:03] Speaker 00:
The suspect ends up barricaded in the bank.

[00:01:06] Speaker 00:
Police barge in, shoot the suspect.

[00:01:09] Speaker 00:
Months later, they're sued in a complaint.

[00:01:11] Speaker 00:
The complaint says, this particular man went into the bank to get some money, and the police came in and shot him.

[00:01:19] Speaker 00:
Would that meet the Iqbal plausibility standard in the 10th Circuit or under Supreme Court precedent?

[00:01:25] Speaker 00:
Of course not.

[00:01:27] Speaker 00:
But the question is, what can you omit regarding the relevant factors for a district court to consider at the beginning of a case if the defendants raise a challenge at Rule 12 like we have here?

[00:01:40] Speaker 01:
Yeah, I had that hypothetical in mind also.

[00:01:43] Speaker 01:
And one answer might be that you would convert your 12b motion to a summary judgment motion and attach

[00:01:52] Speaker 01:
The videos is functionally what happened here.

[00:01:55] Speaker 01:
And there you lay out the additional facts that you think render the complaint implausible.

[00:02:04] Speaker 01:
Why couldn't or shouldn't that happen here?

[00:02:07] Speaker 00:
The reason that I don't think it should happen here goes back to this circuit's Robbins case and other Supreme Court cases that we have in the briefing that says you should decide these qualified immunity questions as early as possible.

[00:02:20] Speaker 00:
Robbins itself

[00:02:21] Speaker 00:
specifically says that this is sort of a special breed of case that gets dealt with in a different way.

[00:02:27] Speaker 00:
And even though Robbins predates ICBAL, if you think about the ICBAL elements in that context, our argument is that this particular claim fails under the first prong of qualified immunity for either of two reasons.

[00:02:40] Speaker 00:
Either in the first instance,

[00:02:41] Speaker 00:
that it's just sort of silent on the facts that the court would need to perform a Graham and Larson analysis.

[00:02:48] Speaker 00:
So you haven't pled things from which the court can really do the balancing, and instead you have omitted the most important factors, and therefore you have not pushed the claim from possible to plausible under Iqbal, even without the video, that you have to speak to the elements that a district court needs to do its work.

[00:03:08] Speaker 00:
And if you're just silent, you just say, well, there's a pursuit,

[00:03:11] Speaker 00:
followed by a chase where a man gets shot.

[00:03:13] Speaker 01:
So you're saying like there's an enhanced plausibility standard in qualified immunity?

[00:03:18] Speaker 00:
I'm not saying that it's enhanced plausibility, but I'm saying that you have to at least address the core questions that form the basis of a claim to reach plausibility.

[00:03:27] Speaker 00:
I think it's actually the same in any case, and that's what the Supreme Court tells us in Iqbal, is that saying things like, well, the attorney general must have known that this bad conduct was going on,

[00:03:38] Speaker 00:
Therefore, we can go into discovery and subject him to discovery before dismissing his case, fail.

[00:03:45] Speaker 00:
And that's what we have here is you pull out the most important parts and just say, well, there's a pursuit at the end.

[00:03:51] Speaker 00:
He runs away and he gets shot.

[00:03:52] Speaker 00:
That's not an accurate depiction of the scenario that a district court needs to perform a prong one qualified immunity analysis.

[00:04:01] Speaker 01:
Is there a case that goes down that path?

[00:04:03] Speaker 01:
I mean, maybe it's Iqbal itself.

[00:04:07] Speaker 00:
I think it is Iqbal itself.

[00:04:09] Speaker 00:
The other case, even though we're not quite there yet in the argument, that I'd like to point out is we quote the Saleem case, the Sixth Circuit case, in our briefs where the court takes a look at video in the context of a Rule of Twelve motion and essentially says, at least in the Sixth Circuit, we can watch video if it undermines the story told in the complaint.

[00:04:30] Speaker 00:
There's actually a better one that we found in preparing for the oral argument that's better than Saleem, and that's Bell versus City of Southfield, Michigan, which is 37F4362.

[00:04:39] Speaker 00:
And in that case, it's a tasing case where there is a dispute at the door of a car.

[00:04:47] Speaker 00:
Get out of the car, no, I'm not going to get out of the car.

[00:04:50] Speaker 00:
And the question turns on whether or not the person had a gun and the interactions that were happening.

[00:04:56] Speaker 00:
A complaint that gets filed in that case

[00:05:00] Speaker 00:
Says no, everything was going fine and you just used force on him for no reason.

[00:05:05] Speaker 00:
They submit the tape at Rule 12 and the 6th Circuit at least says at this juncture because the tape directly undermines the allegations made in the complaint, we can watch it and then we can grant qualified immunity.

[00:05:18] Speaker 04:
Was it referenced in the complaint?

[00:05:20] Speaker 00:
No, not in that case.

[00:05:22] Speaker 03:
But the problem for you, I think, is that the Sixth Circuit said with regard to the second hypothetical that the video contradicted not what was depicted, but that there was an omission in the allegations.

[00:05:43] Speaker 03:
And that was contradicted by the video of the tasing in the Bell case.

[00:05:48] Speaker 03:
So it seems to me that the Bell

[00:05:51] Speaker 03:
Are you talking about Bell v. City of Southfield?

[00:05:54] Speaker 00:
Yes, Your Honor.

[00:05:55] Speaker 03:
And to me, that held exactly the opposite of what you're saying, because there were two hypotheticals that Judge Thabar was addressing.

[00:06:03] Speaker 03:
And in the second hypothetical, it was regarding the Scott v. Harris-Blake contradiction of omission in the complaint, which is exactly what your distinction is here.

[00:06:16] Speaker 00:
I guess on my mind it fits into the first hypothetical where it does contradict at least the insinuations of the complaint that there's just a slow-speed pursuit at the end of which the suspect jumps out of the door and runs away.

[00:06:29] Speaker 00:
I think it's contradicted by the facts again in the context of Graham and Larson where the court needs to know what's going on and what's going on in this particular case is the suspect is shooting at the police mere seconds

[00:06:42] Speaker 00:
before he runs away.

[00:06:44] Speaker 00:
He's shooting at them.

[00:06:45] Speaker 00:
He jumps out.

[00:06:45] Speaker 00:
He takes a few steps.

[00:06:47] Speaker 00:
And, you know, I would direct the court at this point to the estate of George case that we talked about a lot in the briefs there.

[00:06:54] Speaker 00:
This circuit finds that running towards a city in the context of having had this gun and talking about killing yourself and making threatening gestures

[00:07:03] Speaker 00:
is sufficient to warrant force under the Fourth Amendment.

[00:07:06] Speaker 01:
That plaintiff still possessed his weapon.

[00:07:08] Speaker 00:
Yes, Your Honor, he did.

[00:07:09] Speaker 00:
That is a distinguishing characteristic, but that raises the second prong of qualified immunity, and that is that both the plaintiffs and the district court here say that Carr is the best case to look at, but Carr is absolutely factually distinguishable from this case.

[00:07:25] Speaker 00:
So even if plaintiff could survive the first prong of qualified immunity, they can't survive the second

[00:07:32] Speaker 00:
Because there is no case that would have told defendants Zook, Martinez, and Guzman that they have to stop after being fired at and reevaluate everything in those couple of seconds.

[00:07:44] Speaker 00:
Carr certainly doesn't tell them that, and no case that's in the record before this court tells them that.

[00:07:50] Speaker 00:
So whether it's first prong or second prong,

[00:07:54] Speaker 00:
The complaint, I believe, is deficient.

[00:07:56] Speaker 00:
And to circle all the way back to the question that you asked me at the beginning, do we convert?

[00:08:01] Speaker 00:
No.

[00:08:01] Speaker 00:
And I think we don't because that subjects these particular defendants to the ongoing burdens of discovery, which is exactly what I think Iqbal was trying to prevent.

[00:08:12] Speaker 00:
It's saying you don't get to jump to the next phase of an immunity question merely because you think you're going to find something in discovery.

[00:08:22] Speaker 00:
And if this court were to endorse the idea that the way to reach plausibility is to take your story and delete sufficient facts from it so that the district court can't perform a Graham or Larson analysis or Graham and Larson analysis, then what you've really done is encourage false plausibility.

[00:08:44] Speaker 00:
If we know the whole story,

[00:08:46] Speaker 00:
will probably grant qualified immunity.

[00:08:48] Speaker 00:
But if you could pick and choose enough things to take out to where the district court says, well, I don't know, then I guess I'd assert two things.

[00:08:55] Speaker 00:
One, false plausibility shouldn't let you open up discovery and move to the next phase of the case.

[00:09:01] Speaker 00:
And two, it's a scenario that I think does warrant looking at the Bell case or an 11th Circuit case, Johnson versus the city of Atlanta is another one where they look at videos.

[00:09:11] Speaker 00:
And that one's interesting because the defendants there

[00:09:15] Speaker 00:
tried a different method to get the video in where they attached it to their answer and then filed a 12C motion.

[00:09:21] Speaker 00:
But when the 11th circuit takes it up, they don't focus on that.

[00:09:26] Speaker 00:
They just, again, focus on this idea that those videos directly undermine what the complaint is telling.

[00:09:33] Speaker 00:
And that's what we were trying to convince the district court of here, and that's what we're trying to convince this court of today is that the-

[00:09:41] Speaker 04:
What do we do with this?

[00:09:42] Speaker 04:
At the very end of the district court's remarks, he says whether to convert into summary judgment, I guess I'm inclined to deny the motion on that basis as well, even if he had converted it to a summary judgment based on the tapes, and then goes on to say, and I think they're just back questions about whether it was reasonable, so forth, so on.

[00:10:03] Speaker 04:
That's after fully viewing the tapes.

[00:10:05] Speaker 04:
How does that fit into our equation?

[00:10:10] Speaker 00:
That's a very good question.

[00:10:11] Speaker 00:
I mean, it struck me as strange that the district court gave what was, in essence, an advisory opinion on summary judgment without the rest of the record, because if we were... It wasn't on summary judgment.

[00:10:21] Speaker 04:
It was if he considered the tapes and applied 12b6 otherwise.

[00:10:27] Speaker 00:
So that wasn't the way that I read it.

[00:10:28] Speaker 00:
The way I read it was that he was saying, if I can consider them, then I have to convert.

[00:10:32] Speaker 00:
And if I convert, I'm going to deny you summary judgment.

[00:10:35] Speaker 04:
OK.

[00:10:36] Speaker 04:
And maybe we're saying the same thing.

[00:10:38] Speaker 04:
He's saying, if there were nothing more on summary judgment than these tapes, I would still deny them because I think that there's a question of fact about whether they needed to be doing this.

[00:10:49] Speaker 04:
whether they could justify it, the sheer number of shots of the man that's down going down, it seems at some point it slid into excessiveness even if it wasn't initially excessive.

[00:11:00] Speaker 04:
That's a statement by the district court that's in front of us.

[00:11:03] Speaker 04:
Do we disregard it or do we factor it in?

[00:11:06] Speaker 00:
I think you disregard it because it is in essence an advisory opinion on a portion of the record.

[00:11:13] Speaker 00:
I mean, if this were to go back, if you affirm

[00:11:15] Speaker 00:
and we go back and file a summary judgment motion.

[00:11:17] Speaker 00:
Summary judgment motion's obviously going to be supported by testimony of the officers as to what they were perceiving at the time.

[00:11:23] Speaker 00:
I think changing the contours of what an opinion on summary judgment might be.

[00:11:29] Speaker 00:
But as I said earlier, that would subject those particular officers to discovery and the burdens of litigation that I think Iqbal and its progeny protect them from.

[00:11:38] Speaker 00:
But the district court opinion didn't just

[00:11:42] Speaker 00:
say that, right?

[00:11:43] Speaker 00:
I mean, it really appears to be a heavily results-oriented opinion where Judge Browning is talking about the Taylor case and saying that he doesn't even think you need a case, really, in many instances anymore, even maybe this one.

[00:11:56] Speaker 00:
I think the quote was that he hopes that Taylor cut a hole in qualified immunity large enough to drive a truck through.

[00:12:04] Speaker 00:
What you're seeing, I think, in that sort of quasi-advisory notion is the idea that I think things should be moving towards trial, but that's not what Iqbal and the holdings of this court suggest in this context.

[00:12:16] Speaker 00:
So going back to the beginning, I think that the complaint without the videos has holes in it.

[00:12:23] Speaker 00:
It does not tell the court enough about what the suspect was doing for a court, that court or this court,

[00:12:31] Speaker 00:
to be able to analyze Graham and Larson.

[00:12:33] Speaker 00:
And without that, you can't reach plausibility.

[00:12:36] Speaker 00:
You can't reach plausibility in a negative way.

[00:12:39] Speaker 00:
And even if it did or without the videos, if it does have enough content, then there's simply no case that would have told them.

[00:12:47] Speaker 00:
So that's where I think the district court and I have the most direct disagreement, Your Honor, is that even if Judge Browning wants to perform that 2020

[00:12:57] Speaker 00:
hindsight analysis of well, I've counted the number of seconds and I've watched very carefully and I see the gun hit the ground before he runs away, then there's still no case that would have put my defendants on notice that they had to analyze all that on this dark street in the middle of the night and stop firing even though the suspect was running towards

[00:13:19] Speaker 00:
again, like a state of George towards an occupied area, but also in the back of the videos, you could see a car waiting to get down the road.

[00:13:28] Speaker 00:
I don't think there's any case, I wasn't able to identify any case that tells them stop and let him run away or chase him, do whatever you're going to do, that forces barred by clearly established law.

[00:13:43] Speaker 00:
And neither the APLE or the district court point to one.

[00:13:46] Speaker 00:
The best they have is car, the case where

[00:13:49] Speaker 00:
There's a significant temporal gap, a piece of concrete, and a nearly prone suspect.

[00:13:54] Speaker 00:
That doesn't put these defendants on notice that they need to stop firing in this heat of the moment instance.

[00:14:01] Speaker 01:
I forgot to say that the... I ran across a case from the Ninth Circuit that stands for the proposition that the filing of an amended complaint moots an appeal.

[00:14:14] Speaker 01:
Do we even have jurisdiction over

[00:14:18] Speaker 01:
the original complaint at this point?

[00:14:20] Speaker 00:
Well, so the original complaint, we filed a motion to dismiss, which sort of sat there for a while, but Judge Browning granted leave to amend.

[00:14:29] Speaker 00:
Plaintiffs did, in fact, amend.

[00:14:30] Speaker 00:
We filed an additional motion, essentially the same thing.

[00:14:34] Speaker 00:
Judge Browning then held a hearing, that's the one that the transcript's in the record from, and resulted in his short order denying those.

[00:14:41] Speaker 00:
Now, plaintiffs, after the fact, did

[00:14:43] Speaker 00:
file an additional amended complaint.

[00:14:45] Speaker 00:
But the only thing I think it changed, if I recall correctly, is it changed the name.

[00:14:51] Speaker 00:
There were some naming issues.

[00:14:52] Speaker 00:
So I don't think that would interfere with jurisdiction.

[00:14:54] Speaker 01:
There was some introductory language.

[00:14:56] Speaker 01:
I don't know.

[00:14:56] Speaker 01:
I mean, I don't know if it's a bright line or a functional test.

[00:15:00] Speaker 00:
Yeah.

[00:15:01] Speaker 00:
I haven't looked at that issue specifically.

[00:15:04] Speaker 00:
But we certainly believe the court has jurisdiction.

[00:15:09] Speaker 00:
If I could, I'd like to reserve any time I have.

[00:15:11] Speaker 00:
I only have a few seconds now.

[00:15:14] Speaker 00:
Thank you.

[00:15:29] Speaker 02:
Good morning.

[00:15:31] Speaker 02:
I'm Doug Perrin.

[00:15:33] Speaker 02:
I think my first name Kenneth Perrin is on the

[00:15:37] Speaker 02:
on the docket, and I'm here with Sam Ruhl, who's with the law firm of Ruhl and Clark.

[00:15:42] Speaker 02:
My law firm is called the Perron Law Firm.

[00:15:47] Speaker 02:
First of all, counsel spoke about undermining the story told in the complaint, evidence which would undermine the story told in the complaint.

[00:15:59] Speaker 02:
That doesn't mean

[00:16:02] Speaker 02:
I'm not familiar with that language in any case.

[00:16:05] Speaker 02:
I'm not familiar with a holding in a case that says that the complaint has to be prepared with some eye toward potential Graham v. Connor and Larson factors.

[00:16:23] Speaker 02:
But in this instance, certainly the complaint tells the story and it cannot be undermined.

[00:16:31] Speaker 02:
It's clear from Judge Browning's opinion in the discussion of the videos that there's nothing to be undermined.

[00:16:37] Speaker 02:
The only thing we didn't talk about was the BB gun.

[00:16:40] Speaker 02:
We said there was a stolen truck.

[00:16:44] Speaker 02:
There was a chase.

[00:16:46] Speaker 02:
The ultimate victim, Mr. Roybal, exited the truck and was unarmed.

[00:16:53] Speaker 02:
as he fled from the sheriff's deputies, and they shot him in the back.

[00:17:00] Speaker 02:
Now that's not just a Carr versus Castle case.

[00:17:04] Speaker 02:
That is Tennessee versus Garner with the 15-year-old boy.

[00:17:09] Speaker 02:
And I don't even think we're to that point at this stage, because we have pled a plausible claim by pleading those particular facts.

[00:17:19] Speaker 02:
Didn't you get those facts from the video?

[00:17:24] Speaker 02:
Yes.

[00:17:26] Speaker 02:
I'd say the answer to that is yes.

[00:17:28] Speaker 01:
In the videos, they do show what you said, but they show a driver driving backwards down a major road, 40 or 50 miles an hour.

[00:17:42] Speaker 01:
They do.

[00:17:43] Speaker 01:
Approaching the officers threatening, then turning around and speeding off, stopping.

[00:17:48] Speaker 01:
They order the suspect out of the car.

[00:17:54] Speaker 01:
In return, they get a brandishing firearm and shots.

[00:17:57] Speaker 01:
They return fire.

[00:17:58] Speaker 01:
The suspect gets out of the truck, and he's running towards an occupied vehicle.

[00:18:05] Speaker 01:
You've left out the main action in this movie.

[00:18:09] Speaker 02:
Oh, I appreciate what you're saying, Your Honor.

[00:18:13] Speaker 02:
I do respectfully disagree.

[00:18:15] Speaker 02:
I think we said exactly what the pertinent facts were for our case.

[00:18:21] Speaker 02:
I don't, again, know of a rule that says we have to plead defensive material if we are pleading a plausible cause of action, which we did.

[00:18:29] Speaker 02:
There is a cause of action stated against each of these defendants for having acted unreasonably and having shot an unarmed man in the back as he was fleeing.

[00:18:38] Speaker 02:
That's a case.

[00:18:39] Speaker 02:
That states a claim.

[00:18:41] Speaker 02:
Now, are there other facts?

[00:18:43] Speaker 02:
The BB gun, the driving backwards, the foolish things that Mr. Roybal did?

[00:18:48] Speaker 02:
There are.

[00:18:49] Speaker 02:
But we said there was a chase, which is true, and we said that he was in a stolen vehicle, which is true, and that leads to this event.

[00:18:57] Speaker 02:
We're not certainly here to defend the wisdom of Mr. Roybal's actions, but we are here to say that what he did should not have led to what amounts to a sort of an execution on the part of the... Well, you allege that all three officers fired lethal shots.

[00:19:18] Speaker 01:
What's that based on?

[00:19:22] Speaker 02:
You know, I'm not sure.

[00:19:25] Speaker 01:
Don't you have to separate?

[00:19:27] Speaker 01:
Don't the defendants, don't they have the right to defend themselves?

[00:19:30] Speaker 01:
Actually, as I think about it, Your Honor, I think that... You can't make up an allegation that Roybal or the others fired a lethal shot if you don't know.

[00:19:38] Speaker 02:
I believe that came from a hearing that we had with Judge Browning, to tell you the truth, before we filed the second amended complaint.

[00:19:45] Speaker 02:
There was some discussion about

[00:19:49] Speaker 02:
Whether additional shots beyond a certain point were unreasonable, I believe that's where that came from.

[00:19:55] Speaker 02:
I could be wrong.

[00:19:57] Speaker 02:
Yes, sir.

[00:19:58] Speaker 03:
Is the question on the video whether or not the video blatantly contradicts the allegations that you made in the complaint?

[00:20:04] Speaker 02:
That's what I understand the county to be saying.

[00:20:08] Speaker 03:
Because the part of the, to follow up on Judge Tempovich's questioning,

[00:20:15] Speaker 03:
that the part of the scenario that you start with in the complaint, it seems to be just common sense maybe that if there was quite a bit of separation between the initial chase, the initial gunfire, his turning back and firing the BB gun back at the officers, and if there was a cognizable passage of time,

[00:20:43] Speaker 03:
But this happens, looking at these views on the video, it happened so rapid fire.

[00:20:51] Speaker 03:
Why isn't it fair to say, sort of like the Bells v. City of Southfield case did, that the video did, in fact, contradict the allegations and the complaint?

[00:21:05] Speaker 03:
Because essentially of what, similar to the hypothetical, for example,

[00:21:11] Speaker 03:
If someone runs up to me with a gun and is shooting and then all of a sudden there's a security officer that sees it and they drop the gun and then a split second later the officer shoots the assailant and then the assailant's family says, well, alleges in the complaint that

[00:21:37] Speaker 03:
that the security officer shot an unarmed man, you know, that was defenseless.

[00:21:43] Speaker 03:
Well, as a practical matter, because it was so rapid fire, why didn't it contradict the allegations?

[00:21:50] Speaker 02:
At the time, none of the bullets that were fired, I believe that this will prove to be true, none of the bullets that were fired before he exited the truck hit him.

[00:22:06] Speaker 02:
the killing, the actionable thing in this case, occurred after he had dropped the BB gun.

[00:22:13] Speaker 02:
But it happened so fast.

[00:22:15] Speaker 02:
It did.

[00:22:16] Speaker 03:
You know, so, and I'm not arguing with you, but I'll just tell you, sort of my concern, if we do consider this video, you can tell me if I'm wrong, which I may very well be.

[00:22:25] Speaker 03:
But you know, he turns, he's shooting,

[00:22:27] Speaker 03:
And then there's a, my memory is then there's a stop in the action.

[00:22:32] Speaker 03:
And then he comes out, he is wielding the weapon and the three off, the three vantage points, you know,

[00:22:42] Speaker 03:
There is a gun on the ground, but it is so fast.

[00:22:47] Speaker 03:
By the time he exits the vehicle, the gun drops on the ground, and then there's just a slew of gunfire.

[00:22:55] Speaker 03:
So it seems to be troubling, if we consider the video, that it happened so quickly.

[00:23:02] Speaker 02:
If you consider the video, that's true.

[00:23:04] Speaker 02:
And I go back to the question that Judge Temkovich asked earlier about summary judgment.

[00:23:11] Speaker 02:
You know, we agreed that it should be converted to a summary judgment.

[00:23:16] Speaker 03:
Yeah, and I understand that.

[00:23:17] Speaker 03:
But just in terms of whether it contradicts the allegations of the complaint, why doesn't it contradict the allegations of the complaint?

[00:23:23] Speaker 03:
Because it happened so quickly.

[00:23:26] Speaker 03:
What you're alleging, their argument, I think, is essentially that what you're alleging really is just so misleading because sort of it's like my analogy that the family of the assailant says that they shot an unarmed man.

[00:23:43] Speaker 02:
Well, yeah.

[00:23:48] Speaker 02:
But that's our case.

[00:23:49] Speaker 02:
That's what happened.

[00:23:50] Speaker 02:
And certainly, I believe there will be a question of fact.

[00:23:55] Speaker 02:
about whether that was reasonable or not.

[00:23:57] Speaker 02:
And the time frame will certainly be part of that.

[00:24:00] Speaker 02:
But I think that comes later in the case.

[00:24:02] Speaker 02:
Right now, at this stage, I think we have stated a plausible claim for relief.

[00:24:07] Speaker 02:
And whether we get to go all the way to the end with this remains to be seen.

[00:24:11] Speaker 01:
Do you think we should or should not review the videos?

[00:24:16] Speaker 02:
Do I think you should or should not?

[00:24:19] Speaker 02:
I guess I have to say should not since Judge Browning did not consider them in reaching his decision.

[00:24:26] Speaker 02:
But you submitted them also.

[00:24:28] Speaker 02:
Well, we certainly did, yeah.

[00:24:31] Speaker 02:
And we wanted to go forward with a summer judgment motion and try to clear this stuff out early as opposed to late.

[00:24:40] Speaker 02:
And I'm here to defend Judge Browning.

[00:24:44] Speaker 02:
I think that opinion was marvelous and I wish I had his intellectual rigor.

[00:24:50] Speaker 04:
You wanted to go with a motion converted to a motion summary judgment without any more discovery that very day or you wanted discovery?

[00:24:59] Speaker 02:
Oh, no, no.

[00:25:00] Speaker 02:
Just down the road was my understanding, Your Honor, of how that would have happened.

[00:25:03] Speaker 02:
Yes, sir.

[00:25:06] Speaker 02:
You know, we could have given it a shot that day, but I don't think that would have been the best practice.

[00:25:15] Speaker 02:
And truly, our argument is largely contained in Judge Browning's opinion, of course.

[00:25:23] Speaker 02:
We do agree that his decision not to consider the videos was a proper one because there really is not supporting data that that would be an official record.

[00:25:38] Speaker 02:
It wasn't attached, obviously.

[00:25:39] Speaker 02:
It wasn't into the record in any other way.

[00:25:43] Speaker 02:
And with that, I thought he made the principal decision not to consider it.

[00:25:47] Speaker 02:
He did, as the earlier question pointed out, he did give us a preview of what he thought those videos showed.

[00:25:56] Speaker 02:
And I think that's just helpful to counsel.

[00:26:00] Speaker 02:
What the court does with that is the court knows better than I as far as what should be done with it.

[00:26:06] Speaker 02:
But it does appear that even if he had

[00:26:10] Speaker 02:
reviewed the videos, this case would still be going forward if he'd considered them, because if his conclusion, at least two of the officers could have seen the, or should have seen the weapon being dropped.

[00:26:23] Speaker 01:
If there are any... And just to sum up, the principal case that clearly establishes the law here is what?

[00:26:31] Speaker 01:
What are you relying on?

[00:26:33] Speaker 02:
It is that there was a chase based... It's a case.

[00:26:39] Speaker 01:
Oh, is it Tennessee versus Lane or?

[00:26:41] Speaker 02:
Tennessee versus Garner and Carr versus Castle would be our cases.

[00:26:45] Speaker 01:
Those are your two cases.

[00:26:46] Speaker 01:
Yes, sir.

[00:26:46] Speaker 02:
Yes, sir.

[00:26:47] Speaker 02:
That's right.

[00:26:48] Speaker 02:
Thank you.

[00:26:49] Speaker 02:
Thank you.

[00:26:50] Speaker 02:
Thank you.

[00:26:54] Speaker 01:
And were you splitting some argument?

[00:26:57] Speaker 01:
No.

[00:26:58] Speaker 01:
Could you give him a minute and 14?

[00:27:03] Speaker 00:
Thank you.

[00:27:04] Speaker 00:
I'll be very brief.

[00:27:06] Speaker 00:
I just wanted to point out something the court just asked about and that is that this case is also interesting with respect to the video in that plaintiffs also put them into the record.

[00:27:16] Speaker 00:
So it wasn't just us, it's both sides entered these into the record after the first motion to dismiss was filed.

[00:27:22] Speaker 00:
The other thing I would say in response to the arguments just made by counsel is that we aren't arguing that a plaintiff need to anticipate affirmative defenses and plead against them, we're arguing

[00:27:33] Speaker 00:
that to reach plausibility, you have to address what actually happened or at least the minimum elements.

[00:27:40] Speaker 00:
Excuse me, in a forced case, you have to think about the Graham Factors and Larson Factors and address them in such a way that the court can look at the totality and decide, and that wasn't done here.

[00:27:51] Speaker 00:
That's why we put the videos in.

[00:27:53] Speaker 00:
But with that, I would rest unless the court has any additional questions.

[00:27:58] Speaker 01:
Thank you, counsel.

[00:27:59] Speaker 01:
You're excused.

[00:28:00] Speaker 01:
Thank you.

[00:28:00] Speaker 01:
And the case is submitted.

[00:28:01] Speaker 01:
We appreciate your arguments.

[00:28:03] Speaker 01:
The court is in recess until tomorrow morning at 8.30.