[00:00:00] Speaker 04:
So Ibarra versus Lee, 24-50-70.

[00:00:02] Speaker 04:
They will hear from the appellant.

[00:00:12] Speaker 01:
Good morning, your honor.

[00:00:14] Speaker 01:
Thomas LeBlanc on behalf of the appellant Cheyenne Lee and with me today at the council table is my co-counsel and law partner, Matthew Freeh.

[00:00:26] Speaker 01:
On March the 13th of 2020, Deputy Cheyenne Lee was tasked with serving an emergency order of protection on Mr. Jorge Martinez.

[00:00:37] Speaker 01:
Earlier that day, a judge in district court in Tillman County had determined that there was a need for an emergency order to protect two infant children that were in the home with Mr. Martinez.

[00:00:50] Speaker 01:
Deputy Lee arrived at that home for that purpose,

[00:00:55] Speaker 01:
was quickly encountered with Mr. Martinez and that encounter escalated to an altercation and ultimately escalated to the use of deadly force and Deputy Lee shooting Mr. Martinez.

[00:01:14] Speaker 01:
The estate of Mr. Martinez filed this lawsuit against

[00:01:18] Speaker 01:
Rogers County and against Deputy Lee and among other claims, there's a claim against Deputy Lee for unlawful arrest without probable cause and excessive force.

[00:01:30] Speaker 01:
As this Court knows, previously the District Court granted Deputy Lee's motion for summary judgment on qualified immunity, looking only at the first problem of qualified immunity, that being whether there is a violation.

[00:01:42] Speaker 01:
That ultimately was reversed by another panel of this Court and was remanded for the District Court to look only at the remaining issue of whether the law was clearly established.

[00:01:54] Speaker 01:
That's the issue that brings us here today.

[00:01:57] Speaker 01:
And your honor, it is clear from the record before this court that the plaintiff appellee failed to meet their burden on qualified immunity failed to show that the law was clearly established.

[00:02:13] Speaker 01:
Additionally, the district court in its opinion took an impermissibly high view of defining the applicable law.

[00:02:22] Speaker 04:
Before we get to the law, can we talk about what the universe of facts is?

[00:02:28] Speaker 04:
My memory is that under Lewis v. Tripp on an interlocutory appeal from the denial of qualified immunity, we look at the universe of facts that the district court concluded that a reasonable fact finder could find.

[00:02:44] Speaker 04:
Is that your understanding?

[00:02:46] Speaker 01:
It is, Your Honor.

[00:02:47] Speaker 01:
That's my understanding in part.

[00:02:49] Speaker 01:
Additionally, you know, in Medina versus Cram, this Court also acknowledged that you're not limited to looking only at the version of the facts being argued by the plaintiff, but you may also look at and consider

[00:03:05] Speaker 01:
any and all of the undisputed facts that are supported by the record.

[00:03:09] Speaker 04:
Okay, let's say, and of course we have the blatantly contradicted under Scott versus Harris exception and the like, but let's start with those facts that the district court concluded that a fact finder could reasonably find.

[00:03:25] Speaker 04:
My understanding from footnote two of the ruling is

[00:03:29] Speaker 04:
that the court said that they are going to credit the undisputed facts that the prior panel and the opinion authored by Judge Matheson regarded as undisputed facts.

[00:03:44] Speaker 04:
Is that right?

[00:03:46] Speaker 01:
Actually, Your Honor, when you look at that previous decision, there were only two facts that the panel previously identified as undisputed.

[00:03:53] Speaker 04:
Yeah, and that's really not my question.

[00:03:55] Speaker 04:
Is that what the court said?

[00:03:58] Speaker 01:
The district court did acknowledge that it would, yes, recognize the limited facts that the panel had acknowledged as being undisputed.

[00:04:09] Speaker 04:
And it cited page 10 of the opinion, correct?

[00:04:12] Speaker 04:
Yes, sir.

[00:04:12] Speaker 04:
And on page 10, the heading is not undisputed facts, disputed facts.

[00:04:18] Speaker 04:
And your point is well taken.

[00:04:22] Speaker 04:
In the prior panel, they weren't talking about what facts were undisputed.

[00:04:27] Speaker 04:
As you point out, they were talking about the variety of factual disputes that existed and those facts that were disputed, not undisputed.

[00:04:37] Speaker 04:
Do you think that the judge actually, that that's a typo and that he meant to incorporate the disputed facts since he's citing page 10 and the heading is disputed facts, not undisputed?

[00:04:52] Speaker 01:
I was perplexed as well, Your Honor, by that footnote because as I started to mention, there actually are two undisputed facts that are under that disputed fact title.

[00:05:07] Speaker 01:
One was that there was a protective order.

[00:05:09] Speaker 01:
And the other was that the Rogers County Sheriff's Office had been ordered by the district judge to serve the protected.

[00:05:15] Speaker 04:
And neither one of those entered into the opinion, correct?

[00:05:18] Speaker 04:
Correct.

[00:05:19] Speaker 01:
So it is a bit of a mystery.

[00:05:20] Speaker 01:
And I would argue here, Your Honor, that this panel's obligation is to

[00:05:28] Speaker 01:
accept those undisputed facts, apply them to the law to determine whether it was clearly established.

[00:05:35] Speaker 01:
I think this panel also has to look at the disputed facts in the light most favorable to the non-movement, as the previous panel did.

[00:05:43] Speaker 01:
I think that's part of your obligation.

[00:05:45] Speaker 01:
I think part of your obligation also, though, is to look at the complete record.

[00:05:50] Speaker 01:
Because as you know, Your Honor, when you're looking at whether or not an officer is entitled to qualified immunity,

[00:05:56] Speaker 01:
Under both prongs, this court has to consider the totality of the circumstances.

[00:06:02] Speaker 01:
And while you must view the disputed facts in the light most favorable to the non-moving, you must also apply those to the law from the perspective of a reasonable officer in that scene and in that circumstance.

[00:06:18] Speaker 01:
in order to determine whether or not the law was clearly established sufficiently to put any reasonable officer in that circumstance on notice.

[00:06:29] Speaker 01:
Every reasonable officer must be on notice that the conduct would be unlawful.

[00:06:35] Speaker 03:
Are there any facts that the family members spoke of and would be testifying about that you don't think should be considered as part of our review?

[00:06:45] Speaker 03:
Don't we just take those as true?

[00:06:48] Speaker 01:
Yes, Your Honor, and if I may, there are a number of facts that have not been dealt with at all by the District Court in the opinion that we're currently looking at and is currently on appeal.

[00:07:02] Speaker 02:
Were those facts suggested in the District Court?

[00:07:06] Speaker 01:
Yes, Your Honor.

[00:07:07] Speaker 01:
So, for example,

[00:07:10] Speaker 01:
As the district court did acknowledge in footnote two, it's undisputed that there was an emergency order for protection, that there were two infant children in the home who needed protection on an emergent basis.

[00:07:23] Speaker 01:
That's undisputed.

[00:07:25] Speaker 01:
It's also undisputed that that emergency order of protection

[00:07:29] Speaker 01:
expressly stated that there is a weapon on the property and expressly stated that firearms must be surrendered to the sheriff's department.

[00:07:39] Speaker 01:
These are undisputed facts of which Deputy Lee had noticed.

[00:07:43] Speaker 04:
How do you reconcile that counsel with the statement on page 27 of the prior opinion

[00:07:49] Speaker 04:
that says, viewed in the light most favorable to Ms.

[00:07:52] Speaker 04:
Abara, the summary judgment record includes evidence that Mr. Martinez had, it includes evidence that he was suspected of no crime, had no weapon.

[00:08:07] Speaker 04:
So should we just say, prior panel, you were wrong?

[00:08:12] Speaker 04:
Would you view the evidence in the light most favorable to the plaintiff?

[00:08:17] Speaker 01:
Your Honor, I believe the prior panel was correct in acknowledging that fact, but the fact of what was found afterward, for example, in Taylor versus Salt Lake City.

[00:08:29] Speaker 01:
The panel affirmed summary judgment on qualified immunity in the case where the suspect had his hands in his pants, the officer mistakenly interpreted and believed there would be a fire on.

[00:08:42] Speaker 01:
But after the fact, it was determined he was unarmed.

[00:08:44] Speaker 04:
Okay, so we can accept then, as I understand it,

[00:08:48] Speaker 04:
that Mr. Martinez actually ended up no weapon.

[00:08:53] Speaker 04:
It was not Cheyenne Lee's understanding, but that he actually had no weapon.

[00:08:57] Speaker 04:
Correct.

[00:08:58] Speaker 04:
And how about the next statement that, viewed in the light most favorable to Ms.

[00:09:03] Speaker 04:
Sabara, the summary judgment record includes evidence that Mr. Martinez posed no threat to Deputy Lee.

[00:09:16] Speaker 04:
Should we say, Judge Matheson, you were just wrong on that?

[00:09:19] Speaker 01:
Your Honor, again, on that particular question, I think

[00:09:23] Speaker 01:
in terms of deciding whether or not a jury could find that on disputed facts, whether a jury could find that there is a constitutional violation is a separate analysis from whether or not the law was clearly established.

[00:09:41] Speaker 01:
Here, I think with this panel looking at the totality of the circumstances, you have to consider the fact that there is no dispute that Mr. Martinez was resisting, to some extent resisting arrest.

[00:09:53] Speaker 04:
Yeah, and that's my next question.

[00:09:55] Speaker 04:
The next clause actually says that viewed in the light most favorable to Ms.

[00:09:59] Speaker 04:
Sbarra, the summary judgment record includes evidence that Mr. Martinez only minimally resisted arrest.

[00:10:05] Speaker 04:
So do we credit that?

[00:10:09] Speaker 01:
Well, what you must also credit along with that, Your Honor, is the undisputed fact that he did resist that this struggle continued from the hallway on the floor into the bedroom.

[00:10:22] Speaker 01:
And during that time, one handcuff was placed on Mr. Martinez's wrist, which is undisputed.

[00:10:30] Speaker 01:
And at that time, he now has a steel handcuff as a weapon.

[00:10:34] Speaker 04:
Oh, so he does have a weapon.

[00:10:35] Speaker 01:
He clearly has a weapon.

[00:10:37] Speaker 04:
I thought you just said we should credit Judge Matheson saying that he did not.

[00:10:42] Speaker 01:
We were discussing the firearm issue and I'm.

[00:10:45] Speaker 04:
Well, the word was weapon.

[00:10:47] Speaker 01:
I apologize.

[00:10:48] Speaker 01:
I understood your question to be on the one hand.

[00:10:52] Speaker 04:
Oh, I'm sorry.

[00:10:53] Speaker 01:
On the one hand, the emergency order of protection referenced a weapon and firearms on the premises.

[00:10:59] Speaker 01:
I thought that was your question.

[00:11:00] Speaker 01:
I apologize.

[00:11:01] Speaker 04:
It was my mistake.

[00:11:02] Speaker 04:
I was really meaning to ask what Judge Manson says that Martinez had no weapon.

[00:11:10] Speaker 01:
I apologize.

[00:11:13] Speaker 01:
The undisputed record clearly is that he had a steel handcuff attached to his wrist, and the plaintiff's own expert acknowledged, and it's in the record, that that is a weapon.

[00:11:26] Speaker 01:
In the eyes of any reasonable officer on the scene at that time, that is a dangerous weapon.

[00:11:31] Speaker 03:
But there is so much testimony from the family members that don't portray what you're portraying, and you have to live with those facts.

[00:11:38] Speaker 03:
that the officers over aggressive that the decedent was passive other than wanting the officer out of the house, which I think you could demand.

[00:11:48] Speaker 03:
And so when we lay out the facts, if you put them in a column of admissible evidence,

[00:11:54] Speaker 03:
What you have is an extremely violent, unprovoked officer and a man who got killed.

[00:12:01] Speaker 03:
That's what you have.

[00:12:02] Speaker 03:
And when Judge Bacharach asked you at the start about the Johnson vs. Jones question, and you have to accept the facts, you said something to the effect of most of them or something like that.

[00:12:14] Speaker 03:
What were you talking about?

[00:12:15] Speaker 03:
You have to accept all of them, don't you?

[00:12:18] Speaker 01:
You do have to accept those facts, Your Honor.

[00:12:20] Speaker 03:
Tell me this.

[00:12:22] Speaker 03:
This is what I need help with.

[00:12:23] Speaker 03:
If you accept those facts and both witnesses come in and it's up to the jury to decide whether their account is truthful, certainly, but if you accept their facts

[00:12:35] Speaker 03:
then how do you not have a constitutional violation?

[00:12:38] Speaker 01:
Well, and that was the basis of the previous panel's ruling, unquestionably.

[00:12:42] Speaker 01:
We're dealing with a different issue here, Your Honor, which is whether or not the law is clearly established.

[00:12:48] Speaker 03:
It's really not a different issue.

[00:12:49] Speaker 03:
First you have to set up the pins and then you knock them down.

[00:12:52] Speaker 03:
And setting up the pins is what are the facts that we're evaluating the clearly established law piece on.

[00:12:58] Speaker 03:
And those facts that, as I say, we give the

[00:13:03] Speaker 03:
to see all the benefit of those facts in the family testimony.

[00:13:07] Speaker 03:
When you say all of those facts and you see just what this encounter is that they describe, it's much worse than Tennessee versus Garner.

[00:13:15] Speaker 03:
And they don't need a case directly on point.

[00:13:18] Speaker 03:
If the facts are egregious and it's an obvious violation, why is it not, is my question to you.

[00:13:25] Speaker 01:
Your Honor, when you look at, for example, the Sabalas case that the plaintiff relied on and take into consideration Judge Doctor Rock's dissent in that decision, you look then at the Supreme Court's later decision in Tahlequah versus Bond, you look at Esther versus Kramer, you look at Taylor versus City of Salt Lake City.

[00:13:46] Speaker 01:
What we see through all of these is that the court has to look at the totality of the circumstances with respect to whether or not there's case law sufficiently on point where the facts are sufficiently similar that would tell every reasonable officer in that situation that his conduct is unconstitutional.

[00:14:08] Speaker 01:
And respectfully, Your Honor, that case law has not been presented to the district court.

[00:14:12] Speaker 03:
That case law is all fine.

[00:14:14] Speaker 03:
It's all fine for those facts.

[00:14:16] Speaker 03:
in Taylor and there's a question was he going for a gun and so forth.

[00:14:20] Speaker 03:
This is a denial of qualified immunity.

[00:14:24] Speaker 03:
Some of those cases are grants, which is a different standard and really a whole different ballgame.

[00:14:30] Speaker 03:
Question remains, if you give all of the facts that the family will testify about and the peaceful decedent versus the over aggressive officer, you don't say well he had a

[00:14:44] Speaker 03:
handcuff on him and he might have used it against the officer.

[00:14:47] Speaker 03:
That doesn't even come into play.

[00:14:49] Speaker 03:
What you do is you say you managed to get him on the ground, get one handcuff on before he killed him.

[00:14:54] Speaker 01:
With respect, it does come into play, Your Honor.

[00:14:56] Speaker 01:
This Court has recognized that an officer does not have to wait to see the barrel of the gun or the blade as a knife before taking action to protect what a reasonable officer could infer.

[00:15:07] Speaker 03:
This is a jury argument.

[00:15:08] Speaker 03:
You're telling me that a jury could conclude that, and I don't dispute that.

[00:15:13] Speaker 03:
What I dispute is that we're supposed to make that decision.

[00:15:17] Speaker 03:
whether or not that could be used as a weapon, and in fact was being used as a weapon, that's up to the jury.

[00:15:23] Speaker 03:
And the plaintiff has enough evidence that would counter that that it goes to the jury, not to us.

[00:15:29] Speaker 03:
I guess I'm wondering why we're here.

[00:15:31] Speaker 01:
Your Honor, I would argue that what we have is a continuous fluid event, set of events, tense, rapidly evolving.

[00:15:42] Speaker 01:
Deputy Lee was alone.

[00:15:43] Speaker 01:
and cramped close quarters.

[00:15:45] Speaker 01:
He was involved in a struggle.

[00:15:47] Speaker 01:
There's no debate about that.

[00:15:48] Speaker 01:
He was separated from his radio, unable to call for help.

[00:15:52] Speaker 01:
There are adults in the house who are actively interfering with his ability to get control of the situation.

[00:15:57] Speaker 03:
This is a great jury argument, but that's not their fact.

[00:16:01] Speaker 02:
I want to add to that that Deputy Lee is six feet tall and 240 pounds and Ibarra was five foot four and

[00:16:11] Speaker 02:
117 pounds or something like that.

[00:16:16] Speaker 01:
And I acknowledge my time is up, Your Honor.

[00:16:19] Speaker 01:
If I may.

[00:16:19] Speaker 04:
Absolutely.

[00:16:21] Speaker 01:
I do believe the fact that you just articulated actually speak to the actual level of resistance from Mr. Martinez as opposed to that which the family testified to.

[00:16:34] Speaker 01:
It is a bit inconceivable, if you would, that a deputy much larger would not be able to simply turn a person around and put handcuffs on them, which is exactly what he attempted to do.

[00:16:47] Speaker 01:
But instead, this struggle ensued and ultimately resulted in the reason that we're here, Your Honor.

[00:16:53] Speaker 04:
You're out of time, but we will give you one minute for rebuttal.

[00:16:57] Speaker 01:
Thank you, Your Honor.

[00:16:58] Speaker 04:
We'll hear from the appellate.

[00:17:04] Speaker 00:
Thank you.

[00:17:05] Speaker 00:
Good morning to all of you.

[00:17:07] Speaker 00:
It's a pleasure to be in this fine law school where I know my co-counsel Ken Underwood proudly went to some years ago.

[00:17:15] Speaker 00:
From our position, and this has been discussed to some extent by all of you, particularly Judge Baccarat and Judge Phillips, that for this court to have jurisdiction in analyzing this at this juncture, it has to assume all the plaintiff's facts.

[00:17:34] Speaker 00:
And we not only have the prior decision from this court, but we have the recent district court decision.

[00:17:43] Speaker 04:
What do we do with the anomaly that the district court in footnote two reported to define the universe of facts based on the undisputed facts that the panel found?

[00:17:55] Speaker 04:
And as your adversary noted, there was very little that was undisputed in the opinion.

[00:18:01] Speaker 04:
And the opinion's focus, particularly on the page that was cited in footnote two, page 10, was disputed.

[00:18:07] Speaker 04:
That's not undisputed.

[00:18:09] Speaker 04:
Probably a typo.

[00:18:10] Speaker 00:
Probably.

[00:18:11] Speaker 00:
What's that?

[00:18:12] Speaker 00:
Probably a typo.

[00:18:13] Speaker 00:
I think that was not the intent of the court from leading the entire decision.

[00:18:19] Speaker 00:
And some of the, from a plaintiff's perspective, and this was held both by the district court and the prior court of appeal, that

[00:18:29] Speaker 00:
Mr. Mark, and in addition to being 5 foot 4, 170 pounds, 117 pounds, as Judge Seymour pointed out, he was in his underwear asleep in his own house when all this started.

[00:18:42] Speaker 00:
But he was unarmed.

[00:18:45] Speaker 00:
He posed no threat.

[00:18:48] Speaker 00:
He was not resisting.

[00:18:50] Speaker 00:
He was beaten up for no apparent reason.

[00:18:53] Speaker 00:
He was kind of resisting, wasn't he?

[00:18:56] Speaker 00:
Pardon?

[00:18:57] Speaker 00:
wasn't he kind of resisting?

[00:18:59] Speaker 00:
Well, they do say Judge Seymour there was perhaps minimal resistance when he originally was grabbed to be handcuffed where he pulled away asking why am I being arrested or words to that effect.

[00:19:16] Speaker 00:
But after he asked the deputy to leave his house, the chronology then is his arm was grabbed, twisted, he was pinned up against the wall, punched in the face and head, taken down to the ground.

[00:19:34] Speaker 00:
On the ground there were hammer fist punches, elbows, knee strikes, and then the handcuff was tightened more to inflict additional pain.

[00:19:47] Speaker 00:
And then the shots happened soon after that without warning while he was visibly unarmed on the ground with the officer over him shooting downward.

[00:19:59] Speaker 00:
But the district court did hold, and I think Judge Baccarat was talking about this,

[00:20:04] Speaker 00:
that Deputy Lee shot an unarmed individual who was not resisting arrest and who posed no threat to the officer and that including no physical threat.

[00:20:20] Speaker 00:
So from our perspective, these facts are so important when we're looking at the second prong analysis of qualified immunity.

[00:20:30] Speaker 00:
because was there case law or precedent that suggested under those facts, the law was clearly established.

[00:20:39] Speaker 04:
On the claim for unlawful arrest in district court,

[00:20:44] Speaker 04:
Did you argue to the district court that the claim for unlawful arrest as opposed to the excessive force was clearly established?

[00:20:55] Speaker 04:
I did not see it in your response, but maybe I overlooked it.

[00:21:00] Speaker 00:
Maybe not.

[00:21:01] Speaker 00:
What I think may have happened, Your Honor, is I don't think in the moving papers they argued that it was not clearly established.

[00:21:10] Speaker 00:
So in responding to their motion,

[00:21:14] Speaker 00:
a pope when they said the law wasn't clearly established, such as the deadly force, we responded to that.

[00:21:21] Speaker 00:
They also didn't bring that issue up with the non-deadly force.

[00:21:25] Speaker 00:
So I think technically, Judge Bacharach, you're probably correct on that, but I think the reason that we never responded to it is because it was never brought up in their affirmative motion.

[00:21:38] Speaker 03:
Is that right?

[00:21:41] Speaker 03:
argue that no constitutional violation occurred, then automatically they argued that there wasn't any clearly established law, haven't they?

[00:21:50] Speaker 00:
That's a great question, Judge Phillips.

[00:21:53] Speaker 00:
I'm not sure.

[00:21:55] Speaker 00:
In my experience has been, normally, because we have the first prong and second prong analysis of qualified immunity, normally someone says, we don't think there's evidence to support a constitutional violation.

[00:22:08] Speaker 00:
That's prong one.

[00:22:09] Speaker 00:
And they may go on to say, and even if there was, we don't believe the law was clearly established at the time.

[00:22:15] Speaker 00:
And they never made that subsequent argument.

[00:22:18] Speaker 00:
I guess one could say,

[00:22:20] Speaker 00:
They don't need to.

[00:22:21] Speaker 00:
I think the onus is on you, on both prongs.

[00:22:25] Speaker 00:
Okay, well that may be the case, and I don't want to argue something that I'm behind on, but what I'm hoping to point out, which to me is I feel the heart of this, is whether pre-existing precedent applies with obvious clarity to the conduct at issue.

[00:22:42] Speaker 00:
And since we have under plaintiff's facts, including the witness testimony, as you mentioned Judge Phillips, that we have an unarmed man who's not threatening at all being shot without warning, then we go back to Garner as a starting point.

[00:23:00] Speaker 00:
First I would argue it falls within the obvious under those facts.

[00:23:06] Speaker 00:
and Brousseau from the Supreme Court would apply.

[00:23:09] Speaker 00:
That's number one.

[00:23:11] Speaker 00:
Number two, Garner specifically says, a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.

[00:23:21] Speaker 00:
Under plaintiff's facts, that's what we have in this case.

[00:23:25] Speaker 00:
And multiple 10th Circuit opinions, including Huff v. Reeves, Reeves v. Frost, incorporated as part of their president and talk about

[00:23:35] Speaker 00:
Tennessee the Garner.

[00:23:37] Speaker 00:
One of the quotes is officers, this is from the 10th circuit, officers are prohibited from using deadly force against a person when it is apparent that the person poses no physical threat to the officer or others.

[00:23:51] Speaker 00:
And again, this would be on plaintiff's facts.

[00:23:55] Speaker 00:
Then we listed various cases, and I am aware that at least in one or two of them, some of your honors were a dissenting opinion.

[00:24:02] Speaker 00:
But the facts of those cases were very, very different.

[00:24:07] Speaker 00:
than this case.

[00:24:08] Speaker 00:
Ceballos is one of them where obviously you have someone with baseball bats who's refusing to drop them, approaching the officers, swinging the bats.

[00:24:21] Speaker 00:
But even then in 2019, the majority found that Ceballos had a clearly established right to be free from excessive force and we would submit

[00:24:30] Speaker 00:
The facts of that case are much worse for the plaintiff, if you will, than the non-dangerous unarmed person in this case.

[00:24:39] Speaker 00:
We also cited Carr, which is a 2003 case, Walker, a 2006 case, and Tenario, a 2015 case.

[00:24:49] Speaker 00:
And importantly, the majority holding in Tenario said, it's clearly established that a suspect holding a knife, not a gun,

[00:24:59] Speaker 00:
not charging at and no stabbing or slicing motion towards the officers, it would be unreasonable for the officer to use deadly force against the suspect.

[00:25:09] Speaker 00:
That's a person with a knife.

[00:25:11] Speaker 00:
Obviously, we have someone unarmed here, and the factual findings was he never did anything aggressively to punch, to attack, to assault in any way the officer.

[00:25:26] Speaker 00:
And then Huffy Reeves,

[00:25:28] Speaker 00:
A 2021 case from this district held, and we believe this is important for the analysis, pre-existing precedent as of January 2016, clearly established that officers are prohibited from using deadly force against a person when it is apparent that he poses no physical threat.

[00:25:51] Speaker 00:
So going back to the facts, we believe your honors have to assume for purposes of this issue,

[00:25:58] Speaker 00:
There was no threat, no physical threat, let alone an immediate threat of death or serious bodily injury.

[00:26:07] Speaker 00:
So once the court adopts that and makes that assumption, which we believe you need to for purposes of this analysis, we believe the law was clearly established.

[00:26:18] Speaker 00:
There's also a recent case that came out, I think, in 2024 from this district called Clerkly v. Holcomb.

[00:26:27] Speaker 00:
And in that case, it held that it was clear in 2019 that an officer responding to a potentially dangerous situation could not use deadly force against an unarmed, non-threatening person.

[00:26:42] Speaker 00:
So in short, with respect to the deadly force playing on plaintiff's facts, which we believe this court has to assume.

[00:26:51] Speaker 00:
And quite frankly, we raised the jurisdictional issue only because it seemed in the filings that oftentimes my opposition was arguing their facts as opposed to accepting our facts.

[00:27:10] Speaker 00:
But we think the law was clearly established.

[00:27:13] Speaker 00:
It even fell within the obvious.

[00:27:16] Speaker 00:
And so the qualified immunity on the deadly force, we believe, should be denied.

[00:27:23] Speaker 00:
I think given all the facts of this case and all the material factual disputes, this is just one of those cases that needs to be decided by a jury.

[00:27:33] Speaker 00:
And some of the arguments my colleague made on the other side may be arguments for a jury.

[00:27:40] Speaker 00:
that they may or may not accept, but for purposes of deciding whether there's evidence on plaintiff's facts to support a constitutional violation or whether the law was clearly established, we believe that the plaintiff should prevail on both of those issues.

[00:27:57] Speaker 00:
I don't know if any of you have any other facts.

[00:28:01] Speaker 04:
I just have one question.

[00:28:03] Speaker 04:
On the claim for unlawful arrest on prong two, if we conclude that for any of these four alleged crimes that it wasn't a clearly established violation, would we need to reverse on that claim, not the deadly force claim, but unlawful arrest?

[00:28:22] Speaker 00:
I guess potentially, yes.

[00:28:24] Speaker 00:
You know, it's interesting in this case that the officer claimed he only was going to arrest him for the threats, which is disputed.

[00:28:32] Speaker 00:
But then we have to look at arguable probable cause and what else objectively he could have been arrested for.

[00:28:40] Speaker 00:
So I think to technically answer your question, Judge Baccarat, if you found on any one of them

[00:28:47] Speaker 00:
that the law was not clearly established and you felt that issue was clearly before you, then the answer would probably be yes, even though it pains me in some ways to say that, but I think that's probably correct.

[00:29:01] Speaker 04:
On the claim for unlawful arrest as respect to obstruction of a peace officer, even if we credit the facts in Judge Matheson's prior panel opinion,

[00:29:13] Speaker 04:
Why wasn't it, you know, why was it only a plainly incompetent officer would have found arguable probable cause for obstruction of the peace officer?

[00:29:25] Speaker 04:
In other words, even if he was minimally resisting arrest, which I think was the phrase from Judge Matheson, why wasn't it for Deputy Lee at least arguable that he was obstructing a peace officer?

[00:29:39] Speaker 00:
I think it's another very good question, but here's what my response would be.

[00:29:43] Speaker 00:
First of all, as we know, and I think there's even a finding in the record that there was, at least on plaintiff's facts, no consent to enter the home.

[00:29:54] Speaker 00:
And then Mr. Martinez, which he had the right to do as he was standing there in his underwear, just being awoken from sleep, asked the officer to get out of the house.

[00:30:08] Speaker 00:
The officer never properly served the protective order, which is also in the record.

[00:30:13] Speaker 00:
and then went to grab him, presumably to handcuff him or arrest him without telling him what he was arresting him for.

[00:30:22] Speaker 00:
And if you really think about, the only thing in the record that supports this minimal resistance in the beginning was him pulling away at that point.

[00:30:32] Speaker 00:
So arguably, if it wasn't a lawful arrest, hypothetically, then a person might have

[00:30:41] Speaker 00:
the right at least to minimally resist an unlawful arrest.

[00:30:45] Speaker 00:
So if the basis of the probable cause for the unlawful arrest was him pulling away after the officer grabbed him to presumably arrest him without probable cause, I'm not sure that works to say, ah, that is now the basis for arresting him in the first place.

[00:31:05] Speaker 00:
Because up to the grabbing,

[00:31:08] Speaker 00:
Jorge just standing there saying, get out of my house, in no uncertain terms, I don't believe, I think he had the right to do that.

[00:31:17] Speaker 00:
I don't think that Judge Baccarat in and of itself would support the obstruction.

[00:31:24] Speaker 00:
So that's the problem that we have with it, because this minimal resistance that's talked about is after the grabbing and the armlock and starting to put him up against the wall and punching him.

[00:31:37] Speaker 00:
And so if that was excessive force, which the lower court found that the jury could find the nonlethal force was also excessive, then arguably he had a right to resist that.

[00:31:48] Speaker 00:
So I guess the problem with that scenario, any time someone gets arrested without probable cause and the officer grabs him without telling him why they're trying to arrest him and the person tenses up or pulls away, then the officer could say, well, now I have my probable cause because he

[00:32:05] Speaker 00:
He was obstructing me.

[00:32:06] Speaker 00:
So that's the issue we have with that point.

[00:32:09] Speaker 04:
Thank you.

[00:32:10] Speaker 00:
OK, thank you all very much.

[00:32:23] Speaker 01:
Thank you Your Honor.

[00:32:24] Speaker 01:
I'll pick up actually on that issue.

[00:32:28] Speaker 01:
Part of the problem with the district court's order is there is no analysis at all with regard to either the false arrest claim or the excessive force claim.

[00:32:39] Speaker 01:
There is a very high level statement of the law with regard to, for example, we're free from

[00:32:47] Speaker 01:
arrest without probable cause.

[00:32:49] Speaker 01:
Well, that's a true statement, but there's no analysis at all of either the facts or the applicable law.

[00:32:55] Speaker 01:
And as we've covered extensively in our brief, on the false arrest claim, the court has to look at the state statute that was at issue, for example, the obstruction statute, and any state law interpreting that statute.

[00:33:09] Speaker 01:
And I think it's very clear, Your Honor, that any

[00:33:13] Speaker 01:
delay or obstruction is sufficient probable cause and certainly arguable probable cause.

[00:33:20] Speaker 01:
And this case law that we provided shows even words alone is sufficient for an obstruction violation of that statute.

[00:33:30] Speaker 01:
And so we would argue, Your Honor, that when you look at

[00:33:33] Speaker 01:
the facts that actually were admitted by the plaintiff, even in the light most favorable to the plaintiff.

[00:33:39] Speaker 01:
I see that my time is up.

[00:33:40] Speaker 04:
You can go ahead and finish that thought.

[00:33:42] Speaker 04:
Thank you.

[00:33:42] Speaker 04:
But briefly.

[00:33:43] Speaker 04:
Thank you.

[00:33:44] Speaker 01:
The sequence of events simply is Mr. Martinez comes out, is immediately yelling, get the F out of my house, using the B word, cussing at him, yelling.

[00:33:55] Speaker 01:
That is clearly delaying, if nothing else, delaying the service of this emergency order of protection.

[00:34:02] Speaker 01:
Arguable probable cause clearly triggers at that moment.

[00:34:07] Speaker 01:
And then from there we get into was he resisting and the law that we provided in that issue as well, Your Honor.

[00:34:12] Speaker 04:
All right, thank you, Counsel.

[00:34:14] Speaker 04:
Very well presented in your briefs and your oral arguments today.

[00:34:17] Speaker 04:
That will be submitted.

[00:34:19] Speaker 04:
Thank you, Counsel, and you may be excused.