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24-2062, Rael versus City of Albuquerque.

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Mr. Villa.

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May it please the court, counsel.

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The district court erred in granting summary judgment for defendant Wilsey on qualified immunity grounds.

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And the error was as to both prongs of the qualified immunity analysis.

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Primarily the court erred in resolving disputes of fact that were critical to both prongs of the qualified immunity analysis in favor of the defense rather than the plaintiff.

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And had it resolved those disputes of fact in favor of plaintiff, we submit qualified immunity would not be warranted on either prong of the analysis.

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The most essential dispute of fact in this case was what was Mr. Kordova, the decedent, doing at the time he was shot.

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Defendant Wilsey testified under oath that he was advancing beyond his truck in the driveway from which he was originally positioned and pointing his gun in the direction of officers when he fired.

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On the other hand, at the moment the shot can be heard on the ring video, it can be seen that Mr. Cordova was not advancing past his truck.

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In fact, had his firearm pointed towards the ground and was yelling at police to shoot him.

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And this goes to what is the most critical part of the qualified immunity analysis, which was, was Mr. Cordova a threat at the moment in time in which he was killed?

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And the district court,

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in analyzing the Graham Factors and the Larson Factors ignored some of the critical facts that determine whether someone is a threat under those circumstances, facts that this court has previously analyzed and discussed, primarily in Pauli versus White, the last version of Pauli versus White that the court decided after the US Supreme Court made its ruling.

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And that is when police officers are behind cover and at a great distance away.

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In this case, the minimum distance for the closest officer was 50 yards, viewing the evidence in the light most favorable to plaintiff, and that they were behind cover.

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In Pauli versus White, the

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the decedent in that case was actually pointing the firearm when he was killed at police.

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There wasn't a dispute of fact about that.

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The dispute of fact was whether the decedent had actually fired shots.

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But the officer, because he was safely behind cover, the officer who believed he was in danger and filed the shots that killed Paulie, it was determined by this court that that was a Fourth Amendment violation, if true, because he was safely behind cover and not in danger at the time.

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In this case, Mr. Cordova wasn't pointing the firearm when you look at the Ring video.

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At least a jury could reach that conclusion and discredit Defendant Wilsey's testimony that he was pointing the firearm.

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And that's the starting point, I think, for the analysis, because it's the second Graham factor.

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In the Larson factors, it's probably the most important factor.

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And that wasn't changed, Your Honor,

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the U.S.

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Supreme Court's decision in Barnes v. Felix.

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I know there was a... Let me stop you on the facts, though.

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Is the issue when do the officers have to wait until the suspect points the gun?

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Isn't it enough to be raising the gun?

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You know, in this situation, I think that that could be true, right, if he's raising the gun.

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and an officer reasonably believed he was going to shoot it, but based on his words, actions, demeanor, yes, I think that that could be a situation.

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But here, that wasn't the situation.

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He wasn't raising his gun as if to point it.

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At least there is video evidence from which a jury could determine that he was not raising his gun as if to point it.

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So I think we're dealing with a different situation.

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But again, Polly,

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It's not whether the jury could find that he wasn't raising the gun.

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It's whether an officer could reasonably believe that he was raising the gun.

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I mean, he had shot the gun before, right?

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Correct.

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He had discharged it about 10 minutes prior to when he was killed.

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From the evidence, it appears he discharged it into the ground, either on purpose or accidentally.

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but had not discharged it from anybody's view, the video or the police who could see him towards police or towards the neighborhood or a house or anyone else.

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It is true though, isn't it, from the video you can see it and it's certainly consistent with all the testimony that this individual that was acting very erratically, extremely erratically at the moment, he was screaming, screaming, shoot, shoot, yelling, moving around, kind of waving his arms,

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And he had, you know, had been some time before, but he had definitely pointed the gun at the officers at one point.

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And he had over and over and over again resisted their commands to put down the gun, raise your hands, walk toward us through this whole thing.

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He was erratic and never complied.

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And in the very end, he's literally screaming, shoot, shoot, shoot, and moving his arm around.

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Why, in that case, wasn't it reasonable for the officer to believe that he had, you know, there was a threat at that moment?

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Because, Your Honor, I think we have to pick each of those facts apart, applying the Larson factors.

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So certainly, you know, the first Larson factor, which is really the third Graham factor, you know, is the suspect complying with commands?

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Are they resisting?

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I mean, there's no resistance from the plaintiff that

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Mr. Cordova was not complying with commands.

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He wasn't listening to the police.

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However, he was in a position in which he was in the driveway, sort of barricaded behind a truck, was not advancing on police or firing on police or firing on anyone else.

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And then you have to analyze the Fourth Larson Factor, the manifest intentions of the decedent.

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And that's where I think the court's precedent in Ceballos and Velarde comes into play, right?

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And Ceballos will already teach us that someone who's suffering from diminished capacity, like Mr. Kordawek obviously was from the video, can be more dangerous or they can be less dangerous.

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And it's very dependent on the circumstances.

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Here, the facts that favor the plaintiff are that he was suicidal, not homicidal, and that while he wanted police to shoot him, he wasn't taking it to the length of

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I'm going to start firing at the police or pointing my gun at the police to get them to shoot me.

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Even when he's yelling, shoot, shoot, shoot, he's not pointing the gun at police or advancing down the driveway, as Def.

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Wilsey testified, towards the police, which we would agree would make a suicidal subject more dangerous.

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On the other hand, there are suicidal subjects that are less dangerous, and then when we look at the moment in time, what are they doing?

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There's certainly facts here.

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He pointed the gun at the officers at one point.

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There is certainly reason for them to suspect that he also might have been interested in killing an officer or someone that was present.

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He's screaming things that they don't know what they mean.

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No one knows what he's screaming, but he definitely is screaming, shoot, a lot.

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So, I mean, I see your point about taking the facts in favor of the plaintiff, but we also have facts that would certainly cause a reasonable officer to be concerned that he might shoot someone else, including the officers.

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Yes, Judge, but because of the disputed facts, because there are facts that say the opposite, the jury should make that decision.

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And it wasn't proper for a summary judgment.

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I mean, certainly the law is correct if the facts are, you know,

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that way, right?

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And the jury, when properly instructed, would be told if the officer reasonably believed he was going to shoot them or kill them, then the officer can use deadly force and the jury can make that decision.

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But here we have the facts that support the opposite conclusion, that he was simply just trying to get police to shoot them without taking it that far.

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And the police should be able to read

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read his mind.

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It's not reasonable for them based on his actual behavior.

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As a matter of law, it's not reasonable for them to have believed that he... I think what changes it from some of the other decisions of the court is where Mr. Porter was located and that he wasn't moving and that the police were behind cover.

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Right?

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So if you look at some of the other decisions from this court, Thompson, Phillips,

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Valverde, all these situations are police not behind cover.

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Even a recent decision from this court that was after the briefing was submitted, which is the Acala versus Ortega decision, that there was distance.

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In that case, the 35 feet, the police believed that the person had a gun.

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It turned out he didn't, but it doesn't matter.

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They thought he did.

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But there's no cover.

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There's 35 feet.

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without anything in between the officer and the suspect.

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Also, in those situations, you're dealing with a different scenario.

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Akala is someone who had committed a crime and is trying to get away from police.

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He's fleeing.

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He's not necessarily suicidal.

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But the test is whether on looking at the facts, what was happening, in the light most favorable to the plaintiff,

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whether on those facts an officer could objectively, not what they were actually thinking, but objectively reasonable officer could think that there was a threat of great bodily harm.

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Isn't that basically the test?

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You seem to be thinking that, conveying that the jury decides whether there was actually a threat of great bodily harm.

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But once we have the,

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the historical facts there, not worrying about anybody's state of mind.

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We then decide, as a matter of law, whether a reasonable officer could feel threatened.

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Correct.

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OK, you agree on the standard there?

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I think it's the standard, yes.

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I'll go ahead.

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Well, I had one factual question.

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Looking through the ring-hole camera of what's happening at the time of the shooting,

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I can't really tell whether the decedent had gone past the back of his truck or not, and I'm not quite sure how that's relevant.

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You talk about he wasn't advancing toward the officers.

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Can you explain?

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I'm obviously missing something about that video.

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Right.

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So the testimony from Def.

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Wilsey is I saw him advancing towards officers.

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At the time I shot him, I saw him advancing towards officers.

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from being protected by the truck to being open.

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That's right.

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Like as if he was getting ready to walk into the street in the direction of where various officers were set up.

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And you say the video contradicts his testimony.

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Correct.

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At the time that he shot him.

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I can't tell from that angle.

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How can you tell whether he's beyond the truck or not?

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Because, Your Honor, you see him start to walk towards the pickup.

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This is not the time he gets shot.

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He starts to walk towards the back of the pickup, you know, where the bed would be.

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But then he comes back closer to the door, the passenger door, and that's where he's kind of

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positioned as he starts to yell, shoot, shoot, shoot, and then he gets shot.

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And I think that's, you know, the distinction we're drawing here is, you know, if 27 minutes earlier when he's doing this, you know, what I would describe as sort of a drunken waving of the gun, he got shot, you know, we'd be in trouble.

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If, as the hypothetical you proposed, Judge Hartz, he's starting to raise the gun and advance, you know, we're in trouble.

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But the moment of the threat can pass.

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And when you have a situation such as this where there isn't another danger going on, you know, a neighbor comes out, the facts change.

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Somebody gets through on the roadway that was blocked off, the facts change.

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But, you know, the court has historically analyzed each sort of moment in time when a threat exists and then a threat can pass.

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And the court recently talked about how

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A threat can pass again in another case that came down after the briefing, but it's supported by our out-of-circuit cases that we provided to the court, which is that a suspect with a gun can be a threat in one moment, and it can pass later.

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But the cases Lofton versus Stapien,

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And that's a case having to do with positional asphyxiation.

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But the court talked about how even if we assume at the beginning of an encounter under the Larson factors, defendants reasonably perceived a serious threat to their safety that justified the use of deadly force, that calculus changed once the threat had passed.

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So you have to look at essentially the moment in time informed by the totality of the circumstances.

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And that's where I'm talking about the jury's call of the totality of the circumstances.

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How do we interpret his behavior from before and leading up to that point in time?

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And I think that's where it's different.

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And the decision of, can we say as a matter of law, he was a threat at the time he was shot, can't be made.

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And let's not forget there was time, right?

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If the jury decides he's not advancing, he's not about to shoot, time was on their side.

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And the SWAT team was on the way, and the testimony was that the SWAT team had lots of different tools to take somebody like Mr. Cordova into custody without killing him and without necessarily putting officers at risk.

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So, Defendant Wilsey could have waited under the circumstances that he found until the SWAT team arrived.

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They were already on the way.

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So because of those other facts that sort of informed the totality of the circumstances, summary judgment was inappropriate.

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And I see that amount of time.

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Thank you.

[00:15:27] Speaker 02:
Ms.

[00:15:27] Speaker 02:
Griffin?

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May it please the court, counsel?

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Your Honor, as you can tell by counsel's argument that he

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he over-emphasizes the precise moment in time.

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And the Supreme Court in Barnes versus Felix, as well as this very circuit, has said, albeit that is an important point in time, but we still have to look at it in the context of the totality of the circumstances.

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And one of the things that Mr. — Are you conceding that at that moment he was not a threat?

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I'm sorry?

[00:16:08] Speaker 02:
Are you conceding that — No, I am not.

[00:16:10] Speaker 00:
No, I'm not.

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But I'm just talking about the standard and what he is focusing on.

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And so what the Supreme Court has said in the Barnes versus Felix case is prior events may show, for example, why a reasonable officer would have perceived otherwise ambiguous conduct of a suspect as threatening.

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Or instead, they may show why such an officer would have perceived the same conduct as an occupist.

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The history of the interaction as well

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other past circumstances known to the officer thus may inform the reasonableness of the use of force.

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And also in your decision that you wrote, Your Honor, in the Valverde case, you also talk about cases where you say this court has repeatedly held that officers in similar circumstances

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acted constitutionally, even when the actions of the person shot were ambiguous.

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And what I'm saying here in the context of this case, one of the things that Mr. Villa was pointing out is he keeps saying, well, the officers, the other officers besides Officer Wilsey, were behind cover.

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And if the court recalls, when Officer Wilsey first came on scene, he was talking to Acting Lieutenant

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Chavis in trying to decipher a good position where Officer Wilsey could stage where he could have a good visibility of Mr. Cordova and also be in a good position to cover.

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And one of the things that Acting Lieutenant Chavis had said is we're like sitting ducks out here.

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And you can also see that from the video footage

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that those officers who were staged by the police vehicle, they're not feeling exactly very safe by that vehicle.

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In fact, Officer Bernadette Sanchez, when she was inside of the vehicle trying to give Mr. or she was giving Mr. Cordova commands, she at one point, in the presence of Officer Wilsey, exits the police vehicle and says, I'm going to get out of here because he's

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pointing that gun.

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So those officers were not safely behind cover.

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And one of the things that I emphasized in the briefing and that Mr. Villa kept emphasizing in his briefing was, well, that I emphasized that there was no barrier between the officers

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Mr. Cordova and you can see throughout the video in the ring camera that Mr. Cordova is not stagnant.

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He's at sometimes he's by the door of his truck.

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He goes out towards the street at some point.

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He also goes and he walks back and forth along the driveway.

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And so, but at no point in time and we all know from the video footage from all of the

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audio that you can discern from the OBRDs that Mr. Cordova, the officers on body recording devices, that's what they call them.

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I apologize.

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That at no point in time did Mr. Cordova respond to even trying to engage in a dialogue with these officers who were trying to.

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you know, talk to him and, you know, tell him, you know, come towards us with your hands up and empty.

[00:20:11] Speaker 00:
At no time did he attempt to comply or to surrender.

[00:20:17] Speaker 00:
On page 18 of the answer brief, I outline in very detail what he said just before he was shot, and you can tell that he is, like, we're going to end it.

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He even tells Officer Agner, who's giving announcements

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I'm going to hurt you in response to Officer Agner saying, we don't want to hurt you, John.

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And then he's saying, I have one more call to make.

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And he's using all these profane statements.

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And at no time did he give any indication of surrendering.

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And if you look at the Valverde opinion, Your Honor, you said the decisive question is whether, in the Valverde case,

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whether Dodge was reasonable in believing that Valverde was going to fire his gun at Dodge or other officers.

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And that's the same decisive question here based upon the factual record in this case.

[00:21:18] Speaker 01:
Can you be a little more specific there?

[00:21:20] Speaker 01:
Does it matter whether the officer thought he saw him raising

[00:21:29] Speaker 01:
the gun at that last moment?

[00:21:32] Speaker 00:
I don't think so.

[00:21:33] Speaker 01:
I mean, we talk a lot about that, but does it really matter if he was acting erratically and the gun was moving around?

[00:21:41] Speaker 01:
I mean, do we need to be able to see in the video that he was raising the gun?

[00:21:47] Speaker 00:
No, I don't believe so in light of the precedent that is discussed in the Valverde opinion.

[00:21:58] Speaker 00:
this court has said in Valverde is it wasn't clear in that case that Valverde was no longer a threat because it wasn't clear to the officer that he was trying to surrender or dispose of the gun.

[00:22:15] Speaker 00:
Here, it is clear that Mr. Cordova was always a threat to these officers.

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He never gave any indication that he was going to surrender

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that he was going to drop the gun.

[00:22:29] Speaker 00:
And in fact, right before he shot, he says, you know, profanity, and he says, I got a .45, I got a .45, I got a .45, 1911.

[00:22:38] Speaker 00:
And then he says, shoot, shoot, shoot.

[00:22:41] Speaker 00:
He at no time dropped the gun, and he was always, always, always throughout this whole event a threat.

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So that's why it doesn't matter

[00:22:57] Speaker 00:
in which direction at the precise moment he had the gun up, down, pointed at the officers, pointed at himself.

[00:23:09] Speaker 02:
If he was talking that way and always holding the gun down, the officers would not have cause to shoot.

[00:23:17] Speaker 02:
He's got to do something to show that

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the victim is going to fire imminently.

[00:23:25] Speaker 02:
Doesn't he?

[00:23:26] Speaker 02:
Don't the officers need that?

[00:23:28] Speaker 02:
He could be spouting all sorts of aggressive comments.

[00:23:35] Speaker 02:
But if he's just always holding the gun down by his side, the officers would not have cause to shoot him.

[00:23:43] Speaker 02:
There's got to be something that triggered the response by the officers, no?

[00:23:50] Speaker 00:
The scenario that you presented, Your Honor, was if he's always holding the gun down, and that's not what the case was.

[00:23:58] Speaker 00:
He's moving the gun all around.

[00:24:02] Speaker 01:
What about the scenario where he doesn't ever point the gun at the officers and it's clear to the officers he's only talking about suicide, which it did appear for the most part he was talking about suicide.

[00:24:17] Speaker 01:
or suicide, you know, by cop.

[00:24:19] Speaker 01:
So, I mean, does that make a difference if they know, even though he's erratic, he's clearly behaving erratically all the way through, and I understand what you're saying about that, but do we have imminent threat here, and what

[00:24:36] Speaker 01:
I guess, what would make it imminent in your view?

[00:24:40] Speaker 01:
Well, I think we do have an imminent threat here.

[00:24:44] Speaker 01:
Or not imminent, I'm sorry.

[00:24:46] Speaker 01:
Because you're suggesting that all the way through the threat was potentially imminent.

[00:24:52] Speaker 01:
All the way through.

[00:24:54] Speaker 00:
Well, I'm seeing that he was a threat throughout this whole scenario.

[00:25:00] Speaker 01:
But was an imminent threat at all points.

[00:25:04] Speaker 00:
Yes.

[00:25:05] Speaker 02:
So they could have shot him any time in the last two or three minutes of the episode.

[00:25:12] Speaker 02:
So you're going that far?

[00:25:15] Speaker 00:
No, what I'm saying is based upon the circumstances, his behavior was escalating.

[00:25:22] Speaker 00:
And what I mean by that is during this scenario is he does fire a shot and you could tell

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When that moment happened, the officers weren't expecting that.

[00:25:37] Speaker 00:
They were even startled.

[00:25:38] Speaker 00:
Officer Wilsey, even you can see him kind of jump when that shot was fired.

[00:25:45] Speaker 00:
And given his threats... Was that fired into the ground?

[00:25:49] Speaker 02:
Is that clear where the shot went?

[00:25:53] Speaker 00:
I don't think that it was clear.

[00:25:55] Speaker 00:
I think Officer Sanchez said that the shot was fired into the ground.

[00:26:02] Speaker 00:
Again, the officers don't know what he's going to do next.

[00:26:08] Speaker 00:
And I think the imminent threat is when he is waving the gun all around and he's saying, I got one more call.

[00:26:16] Speaker 00:
I got one more call to make.

[00:26:18] Speaker 00:
And he's not responding to any of the commands.

[00:26:23] Speaker 00:
And from Officer Wilsey's perspective, when he's saying, one more call and I got this

[00:26:29] Speaker 00:
I got this gun.

[00:26:30] Speaker 00:
I got the 45, 45.

[00:26:34] Speaker 02:
What does one more call mean?

[00:26:36] Speaker 02:
What do you think that he was saying when he said one more call?

[00:26:41] Speaker 00:
He did say, I got one more call and then we're going to, I think, end it.

[00:26:47] Speaker 00:
So those... What call?

[00:26:51] Speaker 00:
He said that he was going to make a call to his mother.

[00:26:57] Speaker 00:
So he's making statements and the gestures that he's making to the officer, as well as telling, even at one point, like I said, told Officer Agner, who's trying to communicate with him, I'm going to hurt you.

[00:27:17] Speaker 00:
And so given the fact that he's never indicating that he's surrendering and

[00:27:25] Speaker 00:
there's no indication from the officers that he's just going to shoot himself without also shooting them.

[00:27:36] Speaker 00:
And I think if that were the facts of the case, then maybe the plaintiff would have a better argument as far as the threat that he posed, is the officers, they're getting statements from him

[00:27:52] Speaker 00:
where he's directing his anger towards them and just defiance towards them, as well as he's making a statement saying, all I need to do is make one more call, and then we'll end it.

[00:28:07] Speaker 00:
And that's where I go back to the case law, where in Valverde, there's a very thorough analysis of precedents within the 10th Circuit

[00:28:20] Speaker 00:
as well as in Valverde itself, when even if the actions of the person shot are ambiguous, the question is, was based upon the information within the officer's knowledge, did at any point did this person no longer pose a threat as far as was he trying to dispose of the gun?

[00:28:44] Speaker 00:
Was he trying to comply?

[00:28:45] Speaker 00:
Was he trying to surrender?

[00:28:46] Speaker 00:
And those just aren't the facts of this case.

[00:28:49] Speaker 01:
And so I think under both prongs... Can I interrupt you to ask you to talk about, if we reach the clearly established prong, can you compare this case to Pauley and tell me why Pauley doesn't provide clearly established law in this case?

[00:29:09] Speaker 01:
Well, because in Pauley... The second Pauley case.

[00:29:13] Speaker 01:
The second, when it came back on remand.

[00:29:16] Speaker 00:
When it came back on remand, it's because those officers in Pauley, like Mr. Villa suggested, they were safely behind cover.

[00:29:28] Speaker 00:
And these officers, because of the lack of the barrier and the officers by the police vehicle, were not safely behind cover.

[00:29:39] Speaker 00:
and based upon Officer Wilson's person.

[00:29:42] Speaker 01:
They had some cover.

[00:29:44] Speaker 00:
That is correct.

[00:29:44] Speaker 01:
And in Pauley, they had like a two-foot wall, a stone wall, that they were kind of crouched behind.

[00:29:54] Speaker 01:
It wasn't full cover, but that was the case.

[00:29:58] Speaker 01:
And it was dark in that case, so they couldn't be seen as well either.

[00:30:06] Speaker 01:
But here, yeah.

[00:30:09] Speaker 01:
I don't know.

[00:30:09] Speaker 01:
I'm just wondering how it compares.

[00:30:11] Speaker 01:
There is some cover here.

[00:30:13] Speaker 01:
There was some cover in Pauley.

[00:30:17] Speaker 01:
And in Pauley, you had the individual pointing the gun in the direction of one of the two officers.

[00:30:28] Speaker 01:
You know, here we don't have that.

[00:30:30] Speaker 01:
And yet we found no violation there.

[00:30:34] Speaker 01:
In Pauley, there was a violation.

[00:30:36] Speaker 01:
I'm sorry.

[00:30:38] Speaker 01:
Go ahead.

[00:30:38] Speaker 00:
Yeah.

[00:30:38] Speaker 00:
In Pauley, there was a barrier that being a wall.

[00:30:42] Speaker 00:
In this scenario, Mr. Cordova, he was the one, he didn't, he wasn't barricaded.

[00:30:49] Speaker 00:
He was in full control of his own actions as far as his movement, whether or not he's moving down the driveway, away from the truck, within the door of the truck.

[00:31:03] Speaker 00:
And I think because of the dynamics of the situation,

[00:31:07] Speaker 00:
in the driveway, in this case, it distinguishes it from Pauley to where it was individual, he was inside of a house, and the officers who were at a barricade of the wall.

[00:31:19] Speaker 01:
Thank you.

[00:31:21] Speaker 01:
Thank you.

[00:31:23] Speaker 02:
She went over a little bit.

[00:31:25] Speaker 02:
Did you want, you looked to me like you might want another 20 seconds.

[00:31:29] Speaker 02:
Take it.

[00:31:33] Speaker 02:
Just to respond to her, not raising... Absolutely.

[00:31:36] Speaker 03:
You can always give an attorney more time to talk.

[00:31:38] Speaker 03:
I think, you know, there's always going to be some differences when we talk about somebody behind cover, Judge Morris.

[00:31:47] Speaker 03:
But the look at how Judge Riggs resolved the question below, which was she found that the officers were behind cover.

[00:31:55] Speaker 03:
And that was the state of the record.

[00:31:58] Speaker 03:
You know, whether it's

[00:31:59] Speaker 03:
As good a cover as in Polly, I think that's not the issue.

[00:32:03] Speaker 03:
The issue is that they were safely behind cover and that, and I disagree that with Ms.

[00:32:08] Speaker 03:
Griffin, that it was escalating to the point at the time of the shooting that Mr. Cordova was going to be firing on the police imminently.

[00:32:16] Speaker 03:
Okay, thank you.

[00:32:21] Speaker 02:
Thank you, counsel.

[00:32:23] Speaker 02:
Case is submitted.

[00:32:24] Speaker 02:
Counselor excused.