[00:00:01] Speaker 04:
We'll call the next case, 24-1371.

[00:00:04] Speaker 04:
Again, at least on my sheet, Packard v. City and County of Denver.

[00:00:19] Speaker 02:
Good morning.

[00:00:20] Speaker 02:
May it please the court?

[00:00:21] Speaker 02:
Can I ask you a quick question?

[00:00:24] Speaker 02:
Just like our presenting judge said, on the sheet it says it's called Packard v. City of Denver.

[00:00:29] Speaker 02:
But I thought on the briefs it said Eps v. Christian.

[00:00:32] Speaker 02:
But what happened to the name there?

[00:00:34] Speaker 03:
So Jonathan Christian is the defendant appellant in the second appeal.

[00:00:39] Speaker 02:
I want you to be so brief, because I don't want to take you.

[00:00:41] Speaker 02:
This is non-subjective.

[00:00:43] Speaker 02:
Is the case properly named Packard v. City of Denver at this time?

[00:00:46] Speaker 03:
It's within the Packard v. City of Denver case.

[00:00:49] Speaker 03:
It's related to the case you just heard, Your Honor.

[00:00:52] Speaker 03:
Mr. Christian.

[00:00:53] Speaker 02:
I know that.

[00:00:54] Speaker 03:
But is the name of the case Eps v. Christian?

[00:00:58] Speaker 02:
So yes.

[00:00:59] Speaker 02:
It is all right.

[00:01:00] Speaker 02:
Go ahead.

[00:01:01] Speaker 03:
Go to your substance.

[00:01:02] Speaker 03:
That's all I need right now.

[00:01:03] Speaker 03:
We'll figure it out May it please the court.

[00:01:07] Speaker 03:
I'm Andrew Rangel.

[00:01:08] Speaker 03:
I represent a defendant appellant Jonathan Christian officer Christian was an Individual police officer and an individual defendant in the trial that you just heard about What I would like to focus on

[00:01:22] Speaker 03:
For my argument, I'm happy to answer questions, but any other arguments raised in the briefs is the clearly established prong of the qualified immunity analysis.

[00:01:32] Speaker 03:
And the context, which I think it's important for this court to understand the argument that we're making, is the need for particularized articulation of the constitutional right at issue and an analysis of the specific facts

[00:01:49] Speaker 03:
that are involved in this case, and the comparison of those specific facts against the facts of the cases that purportedly create clearly established evidence.

[00:01:59] Speaker 04:
OK.

[00:01:59] Speaker 04:
So what would be helpful for me is for you to distinguish your case from Packard v. Vutaj?

[00:02:08] Speaker 03:
So Packard is totally inapplicable, Your Honor.

[00:02:10] Speaker 03:
And the reason why it's totally inapplicable is

[00:02:13] Speaker 03:
Both the Supreme Court and this case have held in a series of cases that you have to look at the precedent that exists at the time that the event occurred.

[00:02:23] Speaker 03:
And the Packer precedent from this court is a 2023 decision.

[00:02:29] Speaker 03:
The events involving Officer Christian are May 29th of 2020.

[00:02:33] Speaker 00:
Yeah, but Packard relied upon past cases like Fogarty and Buck that would have provided notice that there was about the clearly established right.

[00:02:43] Speaker 00:
So it's the reasoning of Packard is how I understand the plaintiff is arguing that applies here.

[00:02:50] Speaker 03:
And I'm happy to discuss Fogarty and Buck because I agree that those are the two central cases and those are the only two that the district court relied upon.

[00:02:58] Speaker 03:
And I don't think that those

[00:03:00] Speaker 03:
cases create clearly established law here?

[00:03:03] Speaker 03:
Why not?

[00:03:04] Speaker 03:
Let me give you one context that I think is important, and then I will answer that question, if I may, Judge Federico.

[00:03:10] Speaker 03:
The context that I wanted to provide this court is, in five cases, the United States Supreme Court has emphasized the particularized nature of it.

[00:03:22] Speaker 03:
In those five cases, including two from this court,

[00:03:26] Speaker 03:
They grant certiari and issue unanimous per curiam decisions saying, Court of Appeals, you got it wrong.

[00:03:35] Speaker 03:
You're not doing the particularized analysis for analyzing the qualified immunity clearly established inquiry.

[00:03:42] Speaker 03:
They also, in a series of cases, say in the Fourth Amendment excessive force context in particular, that's something that the courts have to do.

[00:03:49] Speaker 03:
That's the failure.

[00:03:52] Speaker 03:
of the district court and why Fogarty and Buck don't apply.

[00:03:55] Speaker 03:
Let me explain, Your Honor, so that you can understand what my argument is.

[00:04:00] Speaker 03:
The issue in Fogarty and Buck and why they're not applicable is the following analysis.

[00:04:11] Speaker 03:
What the district court did in this case was analyze what the court perceived the holdings of Fogarty and Buck were.

[00:04:21] Speaker 03:
That's not the right analysis.

[00:04:22] Speaker 03:
What the right analysis is, is looking at the specific facts of Fogarty, the specific facts of Buck, and comparing those specific facts to the facts of Officer Christian's interaction with Ms.

[00:04:35] Speaker 03:
Epps.

[00:04:35] Speaker 03:
That's the correct analysis that needs to occur on the clearly established analysis.

[00:04:41] Speaker 03:
That didn't occur.

[00:04:43] Speaker 03:
When you do that, you get to a different result

[00:04:47] Speaker 03:
And you come to the conclusion, in our view, that this is not clearly established law from Fogarty and Buck.

[00:04:54] Speaker 03:
There are, in my judgment, some fairly critical factual differences between the facts involved in Fogarty and Buck and the facts involved in Officer Christie.

[00:05:05] Speaker 00:
What's an example?

[00:05:06] Speaker 03:
So first of all, the overall context of the protests, the anti-Iraq protest in Albuquerque in 2003,

[00:05:14] Speaker 03:
There is no discussion in the case at all of any violence.

[00:05:19] Speaker 03:
There's no discussion of any sort of conflict.

[00:05:24] Speaker 03:
It's during the day.

[00:05:25] Speaker 03:
It's at one location.

[00:05:28] Speaker 03:
It isn't involving multiple locations, multiple days, multiple events.

[00:05:34] Speaker 03:
And also, the uses of force that were specifically involved in the information

[00:05:42] Speaker 03:
in Fogarty and Buck are very different than the single pepper ball that is at issue with Officer Christian.

[00:05:49] Speaker 03:
I went through, and in the opening brief, I thought it was important to quote Fogarty and Buck so this court would understand these are the facts that are available in Fogarty and Buck in comparison to the facts here.

[00:06:04] Speaker 03:
And when you look at the different plaintiffs that are involved in those two cases, I analyze it as there are two that have

[00:06:12] Speaker 03:
any sort of factual correlation potential with Miss Epps.

[00:06:19] Speaker 03:
And those are Miss Chavez and Mr. Fogarty.

[00:06:22] Speaker 03:
And when you look at the uses of force on Miss Chavez and Mr. Fogarty, they're very different than the single pepper ball that is used here.

[00:06:32] Speaker 03:
And I think that's a clear distinction.

[00:06:35] Speaker 03:
The other clear distinction, Your Honor, is what Officer Christian testified to was his intent.

[00:06:42] Speaker 03:
This court can conclude that his intent may have been misguided, and he shouldn't have done what he did in that circumstances.

[00:06:50] Speaker 03:
And I respect that conclusion, if that's what this court is.

[00:06:54] Speaker 03:
But that's not what the clearly established analysis needs to be.

[00:06:58] Speaker 03:
The clearly established analysis needs to be, he was attempting to do an area saturation with

[00:07:05] Speaker 03:
one pepper ball to discourage Ms.

[00:07:08] Speaker 03:
Apps from doing what she was doing and crossing in the middle of the street and coming toward the Capitol where the gain unit that Officer Christian was participating with had just cleared the Capitol in a violent, chaotic situation involving a nighttime protest that was specifically directed against the police.

[00:07:29] Speaker 03:
And those are different.

[00:07:30] Speaker 02:
Had he given her a direct command to stop before he fired the shot?

[00:07:38] Speaker 02:
The evidence does not suggest that, Your Honor.

[00:07:40] Speaker 02:
All right.

[00:07:41] Speaker 02:
OK.

[00:07:41] Speaker 02:
So it was fire first and explain later.

[00:07:45] Speaker 03:
Yes.

[00:07:45] Speaker 03:
And that may be wrong, Your Honor.

[00:07:47] Speaker 03:
But the issue that I'm raising is not whether it was a constitutional violation.

[00:07:52] Speaker 03:
The issue I'm raising in this argument today is clearly established.

[00:07:57] Speaker 03:
Yeah.

[00:07:58] Speaker 02:
But that fact may help us discuss how relevant prior precedent is on whether that was clearly established or not.

[00:08:07] Speaker 03:
I agree, Your Honor.

[00:08:08] Speaker 03:
And the analogy that I would draw to get the court thinking about other issues and the implications of the determination that Fogarty and Buck so capture the day, if you will, the problem is the district court's analysis in this case essentially is a holding that if

[00:08:27] Speaker 03:
There's a protester that's not engaged in active aggression.

[00:08:31] Speaker 03:
And it's just peaceful protest.

[00:08:34] Speaker 03:
No matter the context of which it exists, and you use less lethal force, you don't get qualified immunity.

[00:08:43] Speaker 03:
The problem with that is, as this court well knows, in deadly force cases, in takedown cases, in taser cases, in handcuffing cases, and all of the different

[00:08:56] Speaker 03:
avenues in which there is an analysis related to clearly established law, there's many more fine gradations that are done than the general notion that you can't use less lethal force on a protester that's not engaged in violent or disruptive activity in the context of a protest.

[00:09:18] Speaker 03:
And that's fundamentally the problem.

[00:09:20] Speaker 03:
That's the lesson of the Supreme Court's cases.

[00:09:24] Speaker 03:
You have to be particularized.

[00:09:25] Speaker 03:
And you have to be specific, particularly when you're talking about the Fourth Amendment.

[00:09:30] Speaker 00:
Can I ask you about the first-pronged qualified immunity?

[00:09:32] Speaker 00:
I thought I just heard you said you're not challenging a rights violation.

[00:09:35] Speaker 00:
No.

[00:09:36] Speaker 00:
You don't need to emphasize that year-to-date argument?

[00:09:38] Speaker 03:
No.

[00:09:38] Speaker 03:
I'm not giving that argument up.

[00:09:40] Speaker 00:
OK.

[00:09:41] Speaker 00:
That's what.

[00:09:41] Speaker 00:
So help me understand the standard review on that, because parties don't seem to agree about what evidence the district court should have considered in regards to whether or not there was a rights violation.

[00:09:51] Speaker 03:
So the case that the plaintiff

[00:09:54] Speaker 03:
relies upon in their brief is a case called, let me find it.

[00:09:59] Speaker 00:
Marshall.

[00:10:00] Speaker 03:
Yes, is the Marshall case.

[00:10:03] Speaker 03:
And the Marshall case is inapplicable because in Marshall, there was not a Rule 50A motion.

[00:10:09] Speaker 03:
And so this court had a different analysis of what the standard of review was.

[00:10:14] Speaker 03:
In our case, qualified immunity was raised at the Rule 50A stage at the close of the plaintiff's evidence.

[00:10:21] Speaker 03:
So it wasn't just a summary judgment ruling.

[00:10:24] Speaker 03:
I raised qualified immunity on behalf of Officer Christian on summary judgment at the mid-trial Rule 50A motion.

[00:10:33] Speaker 00:
So at what point are you suggesting the review of the evidence should stop?

[00:10:39] Speaker 00:
In other words, help me understand, if you say Marshall's an apposite, then what did the district court do wrong in terms of the evidence it considered for a rights violation?

[00:10:52] Speaker 03:
Analysis was incomplete and imprecise is how I would say it, Your Honor.

[00:10:59] Speaker 03:
When a court in the summary judgment context, the court is required to state the evidence upon which they're making a determination on qualified immunity for the clearly established prong and also for the violation prong.

[00:11:15] Speaker 03:
This case is a little different because it's not a summary judgment.

[00:11:20] Speaker 03:
I believe the district court should have articulated the facts on which he was relying to make the determinations at Rule 50.

[00:11:28] Speaker 03:
But what he did, and understandably so, is referenced back to his summary judgment ruling.

[00:11:35] Speaker 03:
And I understand that.

[00:11:36] Speaker 03:
But the issue of the facts is, what are the facts that exist that demonstrate that there's a violation of the Fourth Amendment?

[00:11:45] Speaker 03:
This court is at a little disadvantage because

[00:11:50] Speaker 03:
Reviewing a qualified immunity determination at trial is a little different than reviewing it on a summary judgment.

[00:11:58] Speaker 03:
Understandable.

[00:12:00] Speaker 03:
The other circuits that we cite in this context say you should apply the same analysis.

[00:12:06] Speaker 03:
And Marshall, in my view, doesn't apply because of the Rule 50A issue.

[00:12:10] Speaker 03:
So what I would say is the court needs to focus, as we argue in our brief, on the totality of the circumstances that exist.

[00:12:19] Speaker 03:
And its three factors, in my view, are a blunt instrument in this case because it's a slightly different context.

[00:12:26] Speaker 03:
If you look at the totality of the circumstances, the question is, was Officer Christian's actions reasonable from the perspective of the objective reasonable analysis of an officer?

[00:12:39] Speaker 03:
I'd like to reserve the remainder of my time if I would.

[00:12:42] Speaker 03:
Okay.

[00:12:42] Speaker 03:
Thank you, Counsel.

[00:12:43] Speaker 03:
Thank you.

[00:13:01] Speaker 01:
May it please the court.

[00:13:02] Speaker 01:
Your honors, I can't put it better than Judge Ebell that this was fire first, direct later.

[00:13:07] Speaker 01:
At trial, the jury saw uncontroverted video evidence of Officer Christian taking a knee aiming and shooting Ms.

[00:13:14] Speaker 01:
Epps with a pepper ball while she was filming the police and documenting the protests.

[00:13:19] Speaker 01:
After seeing that video evidence and hearing the witness testimony, the jury issued a mixed verdict, first finding that Officer Christian had used excessive force in violating Ms.

[00:13:27] Speaker 01:
Epps' Fourth Amendment rights.

[00:13:28] Speaker 02:
Is it clear that he didn't give a warning?

[00:13:31] Speaker 02:
before the firing?

[00:13:32] Speaker 01:
Or is that ambiguous?

[00:13:34] Speaker 01:
It is absolutely clear, Your Honor.

[00:13:35] Speaker 01:
In fact, what happened was Officer Christian fired the shot, then he yells, get out of the street.

[00:13:42] Speaker 01:
And right after he yells that, another officer walks over to him and says, Sarge said don't hit her.

[00:13:48] Speaker 01:
So there was no warning given before he fired that shot.

[00:13:52] Speaker 02:
So there is a recording of that whole event.

[00:13:55] Speaker 01:
Yes, Your Honor.

[00:13:56] Speaker 01:
And the recording shows

[00:13:58] Speaker 01:
He did not say stop or I'll fire.

[00:14:01] Speaker 01:
Exactly, Your Honor.

[00:14:01] Speaker 01:
There was no warning given.

[00:14:04] Speaker 01:
She was shot without any warning.

[00:14:06] Speaker 04:
Is there a lapel video of the officer?

[00:14:10] Speaker 01:
Yes, there's body-worn camera footage.

[00:14:12] Speaker 01:
There's actually two videos, Your Honor.

[00:14:13] Speaker 01:
There's the body-worn camera footage of Officer Christian, where you can see him kneeling, aiming, and firing.

[00:14:19] Speaker 01:
There's also the cell phone footage of Ms.

[00:14:21] Speaker 01:
Epps, because she was filming the police.

[00:14:22] Speaker 01:
That's why she was there, to exercise her constitutional rights, to document that she was live-streaming the protests

[00:14:27] Speaker 01:
raising awareness about the issues surrounding the protest.

[00:14:30] Speaker 04:
OK, I'm just trying to drill down on whether there was a warning or not, whether your position is that there most certainly was no warning, or you can't tell from the evidence if there was a warning or not.

[00:14:41] Speaker 04:
Sounds like it's number one, not number two.

[00:14:43] Speaker 04:
It's number one, Your Honor.

[00:14:44] Speaker 01:
And that wasn't even contested at trial.

[00:14:46] Speaker 01:
The sequence of events were very clear.

[00:14:48] Speaker 01:
And on the clearly established law prongs, Your Honor, Packard controls here.

[00:14:52] Speaker 01:
This feels a little bit like deja vu.

[00:14:54] Speaker 01:
This court decided a similar issue two years ago

[00:14:57] Speaker 01:
involving one of Ms.

[00:14:59] Speaker 01:
Sepp's co-plaintiffs, Mr. Packard, where he was shot without warning and sustained sincere injuries.

[00:15:08] Speaker 01:
And in that case, the core issue was whether or not the law had been clearly established in the protest context.

[00:15:14] Speaker 02:
And I think just to make this really clear... In this exact same protest?

[00:15:19] Speaker 01:
Yes, that case in 2023, the Packard decision involves this protest context of the Black Lives Matter protests.

[00:15:25] Speaker 02:
And so when they said clearly established, they, meaning we, held that the law was clearly established at the time of the protest.

[00:15:36] Speaker 01:
Yeah, in fact, it's actually crystal clear in the court's opinion.

[00:15:39] Speaker 01:
This is a quote from this court on page 870 of that decision.

[00:15:43] Speaker 01:
By May of 2020, when the incidents here occurred,

[00:15:46] Speaker 01:
It had been clearly established for at least 12 years that the deployment of less lethal munitions on an unthreatening protester who is neither committing a serious offense nor seeking to flee is unconstitutionally excessive force.

[00:15:59] Speaker 01:
And to my friend's point, we didn't cite Packard for the idea that Packard is clearly established law.

[00:16:06] Speaker 01:
We cited Packard for this idea that this court has already done the hard work of figuring out how do Fogarty and Buck apply in this context.

[00:16:13] Speaker 01:
And I want to just make it crystal clear how close... What about the idea?

[00:16:18] Speaker 04:
I think what he's getting at is that he would say that the facts of that particular force incident would be different than this one.

[00:16:28] Speaker 04:
Maybe one pepper ball versus more force on Mr. Packard.

[00:16:37] Speaker 01:
Two responses on that, Your Honor.

[00:16:38] Speaker 01:
First, the facts of this case fit much more closely to Fogarty and Buck than the facts in Packard.

[00:16:44] Speaker 01:
And let me tell you why.

[00:16:45] Speaker 01:
This is a sentence from Fogarty.

[00:16:48] Speaker 01:
It says that the harm that he was claiming was, quote, by shooting him with a pepper ball or some other type of projectile.

[00:16:55] Speaker 01:
The exact harm that was at issue in Fogarty is what happened here.

[00:16:59] Speaker 01:
So to say that you need, first of all, this idea that

[00:17:03] Speaker 01:
You know, the qualified immunity test is a scavenger hunt for the exact same type of case.

[00:17:07] Speaker 01:
This court has rejected that idea on multiple occasions.

[00:17:09] Speaker 01:
But even if you needed something directly on point, you have it in Fogarty.

[00:17:14] Speaker 01:
That's exactly what the facts were in relation to Fogarty.

[00:17:17] Speaker 01:
And also to the point of the factual distinction that my friend made about the facts of those cases, the idea that there was no violence in those protests related to Iraq War is just wrong.

[00:17:28] Speaker 01:
And I invite you to read in the background sections of both Fogarty and Buck

[00:17:33] Speaker 01:
In fact, the defendant officers in that case described the hostile nature of the crowd, that there was rioting, that there was violence.

[00:17:42] Speaker 01:
It was the exact same type of defense that Denver sought to make here.

[00:17:47] Speaker 01:
So there's just not really any factual differences between the two, and to the extent they are, they're immaterial.

[00:17:54] Speaker 01:
And if I could just address briefly the point about

[00:18:00] Speaker 01:
that Officer Christian was attempting to use an area saturation method.

[00:18:06] Speaker 01:
What we heard there was essentially a re-arguing of their closing statement.

[00:18:09] Speaker 01:
The jury heard Officer Christian's argument that he was not trying to shoot her, that he was trying to shoot the ground and use this area saturation method.

[00:18:16] Speaker 01:
The jury heard that evidence.

[00:18:18] Speaker 01:
They heard Ms.

[00:18:18] Speaker 01:
Epps' competing testimony in the video evidence, and they rejected Officer Christian's version of events.

[00:18:23] Speaker 01:
They saw the massive bruise on Ms.

[00:18:25] Speaker 01:
Epps' leg from when she was shot.

[00:18:28] Speaker 01:
They heard her testimony about this, and they disagreed with that.

[00:18:33] Speaker 01:
And the reason that matters is because of the court's discussion with my friend about Marshall.

[00:18:37] Speaker 01:
And I want to clear some underbrush here.

[00:18:39] Speaker 01:
So Marshall is actually very clear.

[00:18:42] Speaker 01:
Rule 50A issues a red herring.

[00:18:44] Speaker 01:
So what the court said on the Rule 58 issue actually is, yes, it's a problem.

[00:18:49] Speaker 01:
In that case, the defendant officer did not remake the qualified immunity argument in Rule 58.

[00:18:55] Speaker 01:
Typically, when you don't make that argument in the Rule 58, you're then waived for making it on a Rule 50B.

[00:19:01] Speaker 01:
But in that instance, on appeal, the defendant officer didn't raise that argument of the problem between the 50A and the 50B.

[00:19:09] Speaker 01:
And so what this court said is, that issue's waived, so let's talk about Rule 50B.

[00:19:14] Speaker 01:
In the Rule 50B standard, this court made clear that it is different reviewing qualified immunity after a trial than on, for example, summary judgment, and that you have to look at the evidence in the light most favorable to the fact that the jury found.

[00:19:28] Speaker 01:
And that just makes sense.

[00:19:30] Speaker 01:
That's how this court always does it when you're coming up on review after a trial.

[00:19:33] Speaker 01:
You're going to give deference to the jury and the work that they did.

[00:19:37] Speaker 01:
And actually, even if you look at the cases that they cite on

[00:19:42] Speaker 01:
the out-of-circuit cases that they say you should apply.

[00:19:44] Speaker 01:
Unsurprisingly, those cases actually align directly with Marshall.

[00:19:49] Speaker 01:
So I have a whole list of them here.

[00:19:51] Speaker 01:
I'll just give you one of the cases that they cite.

[00:19:53] Speaker 01:
It was the Ninth Circuit case, the Civiva Los Banos.

[00:19:56] Speaker 01:
It says, in evaluating our view... Could you give the citation?

[00:19:59] Speaker 01:
Oh, yes, sir.

[00:20:00] Speaker 01:
This is 976, F3rd, 986.

[00:20:05] Speaker 01:
And this is cited in their brief.

[00:20:07] Speaker 01:
And this is what that court said.

[00:20:09] Speaker 01:
In evaluating a renewed qualified immunity motion under Rule 50B after a jury trial, we analyze the motion based on the facts established at trial, viewing the evidence in the light most favorable to the non-moving party, and drawing all reasonable inferences in favor of the non-moving party.

[00:20:24] Speaker 01:
And again, I could go through their list of cases.

[00:20:26] Speaker 01:
They all say something along those lines that, look, when you're after a verdict, you're on Rule 50B.

[00:20:32] Speaker 01:
It's a different standard of review of qualified immunity.

[00:20:34] Speaker 01:
And again, that makes sense.

[00:20:35] Speaker 04:
Does it matter in this case?

[00:20:38] Speaker 01:
Do you win under either standard?

[00:20:39] Speaker 01:
Yes, Your Honor.

[00:20:40] Speaker 01:
We win under either standard.

[00:20:41] Speaker 01:
The evidence here was clear.

[00:20:43] Speaker 01:
This was not a close case.

[00:20:46] Speaker 01:
And the evidence was clear of Officer Christian shooting Ms.

[00:20:50] Speaker 01:
Saps without any justification.

[00:20:52] Speaker 01:
I'm happy to answer any questions on any of the issues that were raised by the parties.

[00:20:57] Speaker 01:
Otherwise, I'm happy to see my time and rest on our arguments in our brief.

[00:21:01] Speaker 04:
Well, we don't want to waste six minutes.

[00:21:03] Speaker 04:
Why don't you tell us a little bit about the punitive damages issue?

[00:21:07] Speaker 01:
Yes, Your Honor.

[00:21:08] Speaker 01:
So on the point of damages, there was a wealth of evidence from which the jury could conclude that Officer Christian had a callous indifference to Maseb's constitutional rights.

[00:21:18] Speaker 01:
The first is the video evidence of the shooting itself.

[00:21:22] Speaker 01:
There was no justified reason for Officer Christian to shoot her.

[00:21:25] Speaker 01:
And from that evidence, and on page 64 of volume 22 of the record, Officer Christian testified that pepper bowls are used for pain compliance.

[00:21:34] Speaker 01:
Those are his words, pain compliance.

[00:21:36] Speaker 01:
And so an officer shooting somebody for paying compliance without giving a warning and for no reason, a reasonable jury could conclude, as this one did, that he had a callous indifference for constitutional rights.

[00:21:49] Speaker 01:
But that video evidence wasn't all they saw.

[00:21:51] Speaker 01:
Some of the most vivid evidence was related to his statements that during the protest, there was an instance where he was talking with another officer and they were out of

[00:22:00] Speaker 01:
munitions they needed to refill.

[00:22:03] Speaker 01:
And one of the officers said, yeah, we need to refill.

[00:22:05] Speaker 01:
I like shooting people.

[00:22:08] Speaker 01:
Officer Christian... This was not him that said that.

[00:22:10] Speaker 01:
Somebody else said that.

[00:22:12] Speaker 01:
Somebody else said that.

[00:22:13] Speaker 01:
And shortly thereafter, Officer Christian's response was, editing for the court, F, yeah.

[00:22:19] Speaker 01:
So while it wasn't his statement, he obviously agreed with that.

[00:22:23] Speaker 01:
And that, you know, normally finding evidence on bad intent, it's really hard to do.

[00:22:28] Speaker 01:
You have to infer it typically.

[00:22:30] Speaker 04:
Did it immediately follow the statement?

[00:22:32] Speaker 04:
I like shooting people.

[00:22:34] Speaker 01:
About three seconds.

[00:22:36] Speaker 01:
There was an intervening.

[00:22:37] Speaker 01:
He said something to the effect of all that reasonable force.

[00:22:41] Speaker 04:
And then he said, close enough in time that a reasonable jury could take it to be a response to the statement.

[00:22:47] Speaker 01:
Absolutely.

[00:22:49] Speaker 01:
And the jury saw other evidence as well of

[00:22:52] Speaker 01:
officer Christian's acts toward protesters that showed this callous indifference.

[00:22:56] Speaker 01:
So there was a video they saw, this is an exhibit, 739 is the key exhibit for this video evidence that the jury saw.

[00:23:04] Speaker 01:
He was riding on an RDV, one of these vehicles that the Denver Police Department has.

[00:23:08] Speaker 01:
While the vehicle's moving, you can see there's a group of protesters with their hands up, and officer Christian starts shooting at them.

[00:23:14] Speaker 01:
They're in front of the Denver Public Library, just starts shooting at them, again, without provocation.

[00:23:18] Speaker 01:
13 minutes later, officer Christian comes across

[00:23:22] Speaker 01:
a woman carrying a sign, walking up onto a sidewalk, unprovoked.

[00:23:26] Speaker 01:
He pepper sprays her in the face and says, get the F out of here.

[00:23:31] Speaker 01:
Then right after that, there's somebody filming him with their phone.

[00:23:34] Speaker 01:
He pepper sprays them in the face.

[00:23:36] Speaker 01:
So there was a series of events.

[00:23:38] Speaker 01:
And if you look at exhibit 739 and you see the evidence as it came into the jury, it's easy to see why they would conclude that this was- Did that come in as other bad acts or as race just died?

[00:23:51] Speaker 01:
So there was an objection made below on 404B on other bad acts, Your Honor.

[00:23:56] Speaker 01:
And if Officer Christian had raised that argument in his opening brief, you would have already heard my response to this.

[00:24:02] Speaker 01:
But this was objected to below, and Judge Jackson, a veteran of the bench, overruled the 404B objection because he found that these events went specifically to motive and intent.

[00:24:14] Speaker 01:
And that's page 89 of the record of volume 22.

[00:24:18] Speaker 01:
And again, that's really how this came up.

[00:24:21] Speaker 02:
So it came in under the other evidence rule.

[00:24:24] Speaker 01:
That's right, Your Honor.

[00:24:25] Speaker 01:
Well, because it went to motive and intent.

[00:24:28] Speaker 01:
And so this court has regularly held in the context of where you have to find subjective intent, that's one of the classic exceptions that you're allowed to introduce evidence of other acts.

[00:24:38] Speaker 01:
And so one decision I can point you to is the San Juan decision.

[00:24:42] Speaker 01:
This is 160 F, third, 1291.

[00:24:45] Speaker 01:
And that's this court's decision where it upheld

[00:24:48] Speaker 01:
other acts in this context where there needs to be a showing of subjective intent.

[00:24:55] Speaker 01:
And so this was addressed below.

[00:24:57] Speaker 01:
And Officer Christian didn't raise this in his appeal.

[00:25:00] Speaker 01:
He hasn't appealed from that ruling on the 404B ruling that Judge Jackson made.

[00:25:07] Speaker 01:
So we think even if that objection had been appealed, we would win on that because it's clear that when you have to get subjective intent, you can look at those.

[00:25:16] Speaker 01:
But in any event, that's been waived or at least forfeited because it wasn't raised in his opening brief or in their reply.

[00:25:22] Speaker 00:
Can I ask you about the bifurcation argument as well?

[00:25:25] Speaker 00:
Yes.

[00:25:25] Speaker 00:
Just to help me for context, were there other officers denied qualified immunity?

[00:25:30] Speaker 01:
There were other officers who were granted qualified immunity, Your Honor.

[00:25:34] Speaker 00:
Who were denied?

[00:25:35] Speaker 00:
In other words, his argument is his case should have been, as I understand it, some of the issues should have been tried separately from the city.

[00:25:43] Speaker 00:
But were there other officers also on trial as individual?

[00:25:46] Speaker 00:
No, Your Honor.

[00:25:47] Speaker 00:
So it was just Officer Christian?

[00:25:49] Speaker 01:
It was just Officer Christian.

[00:25:50] Speaker 01:
And the reason why that made sense here, Your Honor, obviously is this is on the abuse of discretion standard.

[00:25:55] Speaker 01:
Bifurcation is a classic issue of discretion.

[00:25:58] Speaker 01:
Neither side has found any case where this court or any other has ever reversed a decision.

[00:26:03] Speaker 01:
But here,

[00:26:04] Speaker 01:
The issues involved the same parties, the same facts, the same case.

[00:26:10] Speaker 01:
It didn't make sense to separate these out.

[00:26:14] Speaker 01:
And even setting aside those potential concerns, there's two reasons why you don't have to worry about the bifurcation issue.

[00:26:22] Speaker 01:
The first is the jury instructions were extremely clear about this.

[00:26:25] Speaker 01:
So jury instruction number four, that's on page 146 of volume 11, said that there were two defendants in the case, City of Denver and Officer Christian.

[00:26:33] Speaker 01:
and that the jury had to, quote, consider them each defendant separately, that they couldn't be considered together.

[00:26:40] Speaker 01:
And second, even if we had concerns about whether or not the jury followed those instructions, we know that they did because of the mixed verdict.

[00:26:48] Speaker 01:
The jury found against Denver on all of the claims, including for Ms.

[00:26:52] Speaker 01:
Epps found against Denver on both the First Amendment and Fourth Amendment claims.

[00:26:56] Speaker 01:
They didn't fine for Ms.

[00:26:58] Speaker 01:
Epps on both of the claims against Officer Christian.

[00:27:00] Speaker 01:
So as this court held in Garcia, when there's a mixed verdict like that, it can give you, quote, extra confidence that the jury followed the instructions.

[00:27:11] Speaker 01:
If there are no other questions, Your Honors, I'll cede my time.

[00:27:14] Speaker 04:
Thank you, counsel.

[00:27:18] Speaker 04:
We have two minutes and 14 seconds left.

[00:27:26] Speaker 03:
Thank you, Your Honors.

[00:27:27] Speaker 03:
I'd like to again address the Packard case, because I think that's an important issue.

[00:27:32] Speaker 03:
I would invite the Court to look at the facts of Packard in addition to the facts of Fogarty and Buck.

[00:27:43] Speaker 03:
Because again, what counsel is doing is what the District Court did, which is focusing on the holding of Packard.

[00:27:50] Speaker 03:
But that's not the correct analysis.

[00:27:52] Speaker 03:
The correct analysis is what are the specific facts that lead to the conclusion that something's clearly established for qualified immunity purposes.

[00:28:01] Speaker 03:
Packard involved a beanbag shotgun that hit Mr. Packard and fractured his neck.

[00:28:09] Speaker 03:
That's a dramatically different use of force than what we have here.

[00:28:13] Speaker 04:
Well, that's just because of basically bad luck, where the beanbag hit him.

[00:28:20] Speaker 04:
that it hit him in the shoulder and the arm or something, it wouldn't have been nearly as dramatic.

[00:28:25] Speaker 03:
That may be true, but the use of force of a bean bag in the context of a protest is a very different use of force than a pepper ball.

[00:28:33] Speaker 03:
And I take issue with the... Well, how do we know that?

[00:28:36] Speaker 02:
I mean, a bean bag could potentially have more momentum because it has more mass, but it would have less velocity.

[00:28:44] Speaker 02:
So maybe the total momentum of a bean bag impact would be the same as a pepper ball.

[00:28:48] Speaker 02:
We don't know that fact.

[00:28:50] Speaker 03:
Except that the mechanism of a bean bag in this context, Your Honor, and this isn't, there is testimony in the trial, but it's not cited in any of the briefs.

[00:29:00] Speaker 03:
It's just based on my knowledge.

[00:29:02] Speaker 03:
The bean bag has sort of a shot at it.

[00:29:06] Speaker 03:
And so it has a much different mass and a much different potential impact.

[00:29:10] Speaker 02:
But if it had more mass but less velocity, the total impact might be the same.

[00:29:14] Speaker 02:
We don't know any of that.

[00:29:15] Speaker 03:
The facts are completely different.

[00:29:16] Speaker 03:
I understand.

[00:29:17] Speaker 03:
To me, what the court needs to evaluate is, what are the facts involving the people in Buck and Fogarty?

[00:29:24] Speaker 03:
And if you look at them, there isn't a single pepperball use of force for any of those plaintiffs.

[00:29:35] Speaker 04:
get down in the weeds on that, but a single pepper ball can be devastatingly harmful.

[00:29:40] Speaker 04:
I mean, what if it hits you directly in the eye?

[00:29:42] Speaker 04:
I mean, you could lose your eye on it.

[00:29:44] Speaker 04:
It could have every much as damaging force as a bean bag.

[00:29:49] Speaker 03:
I agree, Your Honor, but I think the Court needs to look at the videos that are involved in Officer Christian and MSAP's event and understand that what Officer Christian was clearly trying to do was

[00:30:05] Speaker 03:
hit the ground by Ms.

[00:30:06] Speaker 03:
Epps' feet in an area saturation manner.

[00:30:10] Speaker 03:
The district court, if you read the... So tell me this.

[00:30:14] Speaker 04:
I'm not aware of officers hitting the ground in a saturation manner or whatever.

[00:30:22] Speaker 04:
How am I going to look at that?

[00:30:24] Speaker 04:
Is there going to be testimony in the record that's going to say, look at how he was ducked down and pointing the weapon?

[00:30:30] Speaker 03:
So there is.

[00:30:32] Speaker 03:
And it's cited in the brief.

[00:30:34] Speaker 03:
And it's referenced in the brief.

[00:30:35] Speaker 03:
Officer Christian describes in his testimony what an area saturation manner is.

[00:30:40] Speaker 03:
Essentially, Your Honor, briefly, it's using the pepper ball to hit the ground.

[00:30:46] Speaker 03:
And so it disperses the OC by the people.

[00:30:49] Speaker 03:
That's what area saturation is.

[00:30:51] Speaker 03:
Saturate the area with OC.

[00:30:53] Speaker 03:
so that the people don't want to be there any longer by retreating from the OC.