[00:00:00] Speaker 07:
24-2125, Salcedo versus City of Las Vegas.

[00:00:06] Speaker 01:
May it please the court?

[00:00:07] Speaker 01:
Yes.

[00:00:08] Speaker 01:
We are here today because Crystal Cervantes died on November 8, 2020.

[00:00:15] Speaker 01:
And our belief is that her death was unnecessary.

[00:00:19] Speaker 01:
This is a unique circumstance in which the hostage situation that began when

[00:00:27] Speaker 01:
County Defendants Approached the House on Peggy Lane in Las Vegas, New Mexico was broadcast all over the place.

[00:00:35] Speaker 01:
It was broadcast on a Facebook livestream.

[00:00:40] Speaker 01:
The entirety of the hostage situation was captured on livestream, but it didn't stop at the end of the livestream.

[00:00:46] Speaker 01:
The livestream lasted about 51 minutes.

[00:00:49] Speaker 01:
At the end of the live stream and kind of overlapping was sort of an ongoing discussion between state defendants, crisis negotiation team with sort of a triangulated conversation with the murderer, the guy in the house that killed Victor Cervantes and then eventually killed

[00:01:13] Speaker 01:
crystal, Mr. Avedis, there's this ongoing conversation that sort of continues the ability to see what's going on inside that house up to another probably 50 minutes.

[00:01:28] Speaker 01:
We've got a crisis negotiation conversation going on that is variably

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the fact that some of the data from that broadcast to officers on scene.

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What we have is three police agencies.

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And our position is that there is no interagency agreement.

[00:01:48] Speaker 01:
There is nothing explicit about who's supposed to take over this situation.

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We go back to statutory duty, statutory duty, not constitutional duty.

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statutory duty for each of the police agencies to have taken independent action if necessary.

[00:02:07] Speaker 01:
We believe that the circumstances of what

[00:02:11] Speaker 01:
county defendants kind of started.

[00:02:13] Speaker 01:
And the way we address that is that we believe that when the... So the cousin of... Well, can you address... I mean, I think you've got a precondition here on your danger creation theory.

[00:02:29] Speaker 05:
And the precondition is you have to show some affirmative act on the part of officers.

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and a violation of their administrative rules or statutory rules is not a failure to follow those.

[00:02:44] Speaker 05:
That's not an affirmative act.

[00:02:46] Speaker 05:
What was the affirmative act here?

[00:02:49] Speaker 01:
Well, our position, Your Honor, is that there was such glaring abdication on the parts of the respective defendants

[00:02:59] Speaker 01:
that it becomes an action, becomes an affirmative act.

[00:03:02] Speaker 05:
What's the authority for that, that somehow the failure to act, no matter how glaring, becomes?

[00:03:12] Speaker 01:
I agree that the, I mean, I have to concede the weight of the case law is not in favor of that position.

[00:03:20] Speaker 05:
But there are instances where... Is there any case law that favors that position in terms of the idea of it being an affirmative act, that first factor that the courts consider?

[00:03:31] Speaker 01:
We cite to Ross, which is an out-of-circuit case.

[00:03:34] Speaker 01:
I think it comes from the Seventh Circuit.

[00:03:36] Speaker 01:
And that's the case where the sheriff, there's a drowning kid, sheriff shows up, kind of waves off some rescue efforts.

[00:03:46] Speaker 05:
There can be certain... So he waves off rescue efforts, which is an affirmative act.

[00:03:52] Speaker 01:
Right.

[00:03:53] Speaker 05:
What was there like that here?

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It's hard to discern that in the mess of the response in this case, quite frankly.

[00:04:03] Speaker 05:
So, I mean, the way that... Well, it's your job to tell us what it is.

[00:04:06] Speaker 01:
Right.

[00:04:07] Speaker 01:
Well, it's... Our position, and I understand that it's seen as a novel position,

[00:04:15] Speaker 01:
is that the failure to act in the face of obvious danger can in and of itself become an action.

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There are times in tort law, for instance, that omissions are taken as negligence.

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We believe that the sort of respective omissions, the collective omissions on the part of respective defendants here can amount to an action.

[00:04:45] Speaker 07:
But here, isn't the most difficult thing for you to overcome is that the danger was present before, very clear, an awful danger was present before there was any opportunity for the police to act.

[00:05:01] Speaker 07:
Is that a fair characterization?

[00:05:03] Speaker 01:
I think that it's fair to say that there was obviously some danger brewing.

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The way that it started was not a shots fired call.

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It was simply, it started out sort of as a justified welfare call.

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Mother gets a call from Crystal.

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Mother's not in town.

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If Mother were in town, she would have driven straight over there.

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Instead she calls her niece, who she asks to go over there.

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Niece is apprehensive.

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because of what she already knew about Alvarez and his behavior from the day before, and just his general behavior.

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He's a dangerous guy.

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Luckily for her, she, on her way to the house on Peggy Lane, sees Deputy V. Hill.

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And so it still hasn't crescendoed at all.

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If we had a crystal ball, like we did after 3 o'clock in the afternoon into what was happening, I don't know what we would have seen, but we do know

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that there were no outward appearances of this kind of danger.

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And when I say this kind of danger, I mean the kind of danger that immediately erupts after Deputy Vigil knocks on the door.

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And in the complaint, in a subsequent briefing in the district court, what I tried to make clear is that there are separate lapses on the part of the different defendants.

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The first lapse doesn't even occur

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with the way Deputy Vigil and Deputy Atkins approach the house.

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The first lapse on the part of county defendants occurs in the way that they respond to the cousin coming up to the squad cars and saying, hey, there's this dangerous guy with a gun in the house a block away.

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They don't call it in for what it is, which is foreseeably a potential hostage situation.

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Armed guy, known criminal history, known mental illness history,

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to people in the house that aren't armed.

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The way that county defendants approached it started, well, it didn't start it.

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It can be seen to have hastened the nature of the danger that happens after they get there.

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They knock on the door, guns are not drawn, squad cars are in front of the house, they show up in uniform.

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Deputy Vigil declines backup from whichever dispatch you talk to.

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We believe it was actually state police dispatch.

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And from that point forward, Alires shoots.

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We hear the first shot that anybody in the universe heard, and we hear the scream.

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And from that point forward, it just gets incrementally worse.

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And the idea here

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is that because this stretched out for so long, it wasn't a quick, I mean, it was definitely a hostage situation.

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It was definitely something that justified that kind of police presence, obviously.

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But it became this very prolonged situation, which is where we get into asking the court to analyze this under the deliberate indifference standard rather than the intent to harm standard on the conscious shocking behavior.

[00:08:22] Speaker 01:
So as I'm understanding you,

[00:08:24] Speaker 07:
the creation of the danger by the police officer was the way they responded to the initial request for assistance.

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They responded by going to the front door, ringing the bell.

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That angered the gunman or excited him in some way.

[00:08:41] Speaker 07:
That's your claim of creation of danger?

[00:08:44] Speaker 07:
There has to be a creation of danger, does there not?

[00:08:46] Speaker 01:
Well, it has to be.

[00:08:47] Speaker 01:
It's either creation of danger or increased vulnerability to the plaintiff.

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And we've tried to emphasize that we're going on that theory, the increased vulnerability.

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And so, absolutely, it was plain as day that this was the kind of situation that you don't just treat as a welfare check.

[00:09:09] Speaker 01:
I mean, a welfare check is, my grandpa won't answer the phone.

[00:09:13] Speaker 01:
He's older.

[00:09:13] Speaker 01:
Maybe he fell down.

[00:09:14] Speaker 01:
Can you go check on him?

[00:09:16] Speaker 01:
This is under New Mexico state law.

[00:09:18] Speaker 01:
This is not the circumstances that would

[00:09:22] Speaker 01:
describe a welfare check at all.

[00:09:25] Speaker 01:
What were they told by the sister?

[00:09:28] Speaker 01:
So it was the cousin.

[00:09:29] Speaker 01:
They were told, my aunt called.

[00:09:32] Speaker 01:
She said that my cousin, Crystal, is home with Tuffy.

[00:09:38] Speaker 01:
Tuffy is Alitas' nickname.

[00:09:41] Speaker 01:
He's armed.

[00:09:42] Speaker 01:
He's acting irate.

[00:09:44] Speaker 01:
I believe she tells him he's been in the state hospital, he's got a violent criminal history, and she's recently talked to my aunt, Crystal's mother, and expressed fear that he's acting crazy.

[00:10:00] Speaker 01:
And so these are circumstances that would justify a far different response from the initially responding agency.

[00:10:09] Speaker 01:
Certainly get over there, but certainly don't decline assistance.

[00:10:14] Speaker 01:
And that was offered by dispatch.

[00:10:16] Speaker 01:
And I think dispatch may have been one of the few sort of rational heads involved in that initial response, because dispatch saw that it was something that would require at least an invitation for backup.

[00:10:29] Speaker 01:
The two deputies just went over there as casual as day.

[00:10:33] Speaker 01:
And, you know, I don't know how much bearing this has.

[00:10:37] Speaker 01:
we actually get to see what Adidas' response is to police knocking on the door.

[00:10:45] Speaker 01:
And granted, his ramblings are difficult to listen to in the Facebook livestream, but he says pretty quickly something to the effect of, after he shoots Crystal in the head, or right before he shoots Crystal in the head, your mom called the cops, or your mom's dumb, or there's some indication

[00:11:06] Speaker 01:
that his response to Deputy Vigil knocking on the door is the response we see within the first minute of him shooting Crystal in the head.

[00:11:18] Speaker 01:
I agree, this case, it's difficult not to engage in a lot of speculation in terms of what would have happened if not for certain behavior, but that's kind of the nature of this case.

[00:11:31] Speaker 05:
Well, no, it's not the nature of the danger creation theory that you've alleged here.

[00:11:36] Speaker 05:
That is a very, very difficult theory to prove, and it requires affirmative action for a reason.

[00:11:43] Speaker 05:
Because if it didn't, we'd be doing what you're doing here, which is would have, could have, should have.

[00:11:47] Speaker 05:
These officers should have done this.

[00:11:49] Speaker 05:
These officers should have done that.

[00:11:50] Speaker 05:
It would have been better if they'd done this.

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That's why we require, as a precondition, an affirmative action on the part of the officers that created the danger

[00:12:00] Speaker 05:
And that's important here.

[00:12:03] Speaker 01:
No, I agree.

[00:12:04] Speaker 01:
I agree.

[00:12:05] Speaker 01:
We're here on an uphill battle.

[00:12:06] Speaker 01:
I don't disagree with the fact that the weight of the case law requires at least the suggestion of an affirmative action.

[00:12:15] Speaker 01:
But if we're left with circumstances where there is simply flat inaction or there is simply flat scrambling with three different police agencies trying to find their heads,

[00:12:30] Speaker 01:
and get some grasp on the situation that is at the same time evolving and fluid and emergent, but also giving you, it's an hour and 45 minutes, we think, if you take the CNT interactions before Crystal's finally dead, where we have state police officers there almost at four, almost four o'clock, potentially after four o'clock in the afternoon, positioning themselves behind the house

[00:12:59] Speaker 01:
with these long rifles trying to get a shot because their information from their commanding officer is that she's still alive.

[00:13:08] Speaker 05:
And so, yeah, it's... I'm getting... Well, and they're trying to make sure other people aren't shot.

[00:13:17] Speaker 00:
Right.

[00:13:17] Speaker 05:
They're being cautious.

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They're not taking affirmative acts that cause this problem.

[00:13:22] Speaker 05:
They're being cautious.

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And so you have to factor that in.

[00:13:26] Speaker 05:
You can't just assume that

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you know, with more officers there sooner, it would have made any difference.

[00:13:32] Speaker 05:
They're plotting there all the way through.

[00:13:35] Speaker 05:
They're trying to decide what to do.

[00:13:37] Speaker 05:
They're getting the neighbors out.

[00:13:39] Speaker 05:
They're, you know, they're setting everything up.

[00:13:43] Speaker 01:
Absolutely.

[00:13:43] Speaker 01:
There were other things that needed to be done.

[00:13:46] Speaker 01:
I don't know the idea that I've been

[00:13:48] Speaker 01:
suggesting that if you had a larger response of police officers, it would have satisfied our complaint.

[00:13:56] Speaker 05:
You have to have causation as well.

[00:14:00] Speaker 01:
What I'm trying to get to is that if we are left to argue if the precondition is that strict, that it will never account for situations where omissions are so great that they result in

[00:14:18] Speaker 01:
in the breach of duty and causation.

[00:14:22] Speaker 01:
We're hobbled at the starting line.

[00:14:26] Speaker 07:
That brings me to an issue that I don't really was touched on in the briefing.

[00:14:33] Speaker 07:
But in your first opening comments, you talked about the officer's conduct also violated state law.

[00:14:42] Speaker 07:
We've been spending all our time on the federal civil rights claim, and as the Supreme Court has repeatedly said, the Constitution is not a fount of tort law.

[00:14:56] Speaker 07:
But the state law is.

[00:14:58] Speaker 07:
Are you conceding that if you lose on the 1983 claim, the state law claim has to be dismissed as well?

[00:15:09] Speaker 07:
No, not at all.

[00:15:10] Speaker 07:
Have you made any argument along those lines?

[00:15:13] Speaker 01:
Well, I mean, there's this idea that we're suggesting that there's a time, place, and manner restriction that needs to happen with state claims.

[00:15:22] Speaker 01:
And that's not something that I've ever suggested.

[00:15:25] Speaker 01:
That's not something that I believe was ever raised in any of our briefing below.

[00:15:30] Speaker 01:
And the response, assuming that there is a suggestion that there is a time, place, and manner,

[00:15:38] Speaker 01:
And I've never suggested to replace my own theory on how this should have been handled for what actually happened.

[00:15:46] Speaker 07:
I'm not sure I'm following you when you speak of time, place, and matter.

[00:15:50] Speaker 07:
My question is rather straightforward.

[00:15:54] Speaker 07:
Ordinarily, this court says, if a district court disposes of a federal law claim before trial, then

[00:16:06] Speaker 07:
the state law claims should be dismissed without prejudice and left to the state court.

[00:16:11] Speaker 07:
The one circumstance in which that wouldn't make sense if it's the same claim, essentially, if you're suing under the clear equivalent of a 1983 claim.

[00:16:23] Speaker 07:
And I'm curious why that doesn't seem to have happened here.

[00:16:31] Speaker 07:
It's hard for you to do that because you don't know that's the situation until the court rules.

[00:16:36] Speaker 07:
But the court disposed of the state law and federal claims at the same time.

[00:16:41] Speaker 07:
But should the court have dismissed state law claims without prejudice at this point?

[00:16:48] Speaker 07:
And I'm not sure we should address that when you haven't raised it, but I'm curious why that wasn't presented to the federal district court.

[00:17:00] Speaker 01:
I'm not sure quite how to answer that.

[00:17:02] Speaker 01:
I mean, there's completely separate theories.

[00:17:07] Speaker 07:
To answer the court's question, if... But did you argue in your brief that even if we lose on the federal law claims, we have state law claims?

[00:17:17] Speaker 01:
I asked the court to reverse the finding of summary judgment on

[00:17:23] Speaker 01:
state law claims.

[00:17:24] Speaker 01:
And they're distinct theories.

[00:17:27] Speaker 01:
Did you base that in your briefing here?

[00:17:30] Speaker 01:
I believe I did.

[00:17:31] Speaker 01:
I'd like to think I did.

[00:17:35] Speaker 07:
Okay.

[00:17:35] Speaker 07:
Well, your time's expired.

[00:17:37] Speaker 07:
Thank you, Your Honor.

[00:17:40] Speaker 07:
We'll hear from the appellees.

[00:17:42] Speaker 07:
What you've asked for is

[00:17:45] Speaker 07:
Never works.

[00:17:48] Speaker 07:
Divide your time between three attorneys when it's just 15 minutes.

[00:17:55] Speaker 07:
I'm not sure that there's something they'll want to add after you're done.

[00:18:00] Speaker 07:
And I don't know how you've tried to work this out.

[00:18:05] Speaker 07:
But just know you may be up there for the whole 15 minutes.

[00:18:09] Speaker 06:
Understood, Your Honor.

[00:18:09] Speaker 06:
I'm ready to speak quickly.

[00:18:12] Speaker 06:
May it please the court, counsel, Nick Audio here on behalf of San Miguel County appellees.

[00:18:18] Speaker 06:
This case is undoubtedly tragic.

[00:18:21] Speaker 06:
Crystal Cervantes was murdered by Alejandro Alirez, a private actor.

[00:18:27] Speaker 06:
This case is founded on a private act of violence.

[00:18:31] Speaker 06:
Unfortunately, after Mr. Alirez shot Mr. Cervantes twice within a period of roughly three minutes, Mr. Alirez spent the next 30 minutes firing gunshots out of the front of the residence at law enforcement that was responding, preventing them from having the opportunity to save Mr. Cervantes.

[00:18:49] Speaker 06:
The question before the court is whether Mr. Montes' substantive due process rights were violated.

[00:18:56] Speaker 06:
The court in Descheny made it clear that the state does not have an affirmative obligation to prevent or to protect against private acts of violence.

[00:19:06] Speaker 06:
And to address a few questions that came up regarding affirmative action in this case, the 10th Circuit has repeatedly reiterated the fact that inaction, even inaction by the state

[00:19:17] Speaker 06:
when there is a known danger does not trigger an affirmative obligation to act under the Fourteenth Amendment to prevent a private act of violence.

[00:19:29] Speaker 06:
Of course, there are two exceptions.

[00:19:30] Speaker 06:
There are the special relationship doctrine.

[00:19:32] Speaker 06:
I'm not going to spend time on that because that was not brought up in the briefs.

[00:19:35] Speaker 06:
But what we're really the core of the argument here is the danger creation theory.

[00:19:42] Speaker 06:
I think it is very helpful in this case to compare a few 10th Circuit cases.

[00:19:49] Speaker 06:
In TD versus Patton and Courier, in addition to Armijo, those are cases where the 10th Circuit found

[00:19:57] Speaker 06:
that a danger was created by the state.

[00:20:01] Speaker 06:
In those cases, the state was aware of a danger posed to children, and despite being aware of that danger, placed children in a situation where they suffered harm, they suffered abuse.

[00:20:14] Speaker 06:
The court, rightfully so, found that there was danger creation in those cases.

[00:20:19] Speaker 06:
Compare those two cases to Bryson and Christensen.

[00:20:22] Speaker 06:
In Bryson, you had a postal worker that unfortunately began shooting within a postal office.

[00:20:29] Speaker 06:
Law enforcement responded it was a hostage situation that did not resolve for over an hour and a half.

[00:20:36] Speaker 06:
In that case, the 10th Circuit did not find that the state had created the danger

[00:20:43] Speaker 06:
Because that danger pre-existed them arriving it was that homicidal ideation and actions by the postal worker that created the danger not any state action in Christiansen where the court was faced with a similar albeit different situation where Christiansen was armed with an ak-47 rifle he at that time was threatening suicide officers responded they were on scene for hours while he was barricaded in his residence and

[00:21:12] Speaker 06:
And eventually, they fired a baton round through a rear window, broke the window, and shortly thereafter, Mr. Christensen took his own life with that rifle.

[00:21:22] Speaker 06:
Once again, in that case, the 10th Circuit found that the state did not create that danger.

[00:21:27] Speaker 06:
His suicidal ideation preexisted the state arriving, and they did not create that danger.

[00:21:34] Speaker 06:
Those cases, both Bryson and Christensen, are very instructive in this case because Mr. Aliris' homicidal ideation preexisted law enforcement arriving.

[00:21:45] Speaker 06:
Law enforcement did not cause him to have those homicidal thoughts and homicidal actions.

[00:21:52] Speaker 03:
Before you move from that, can I just ask you, I think what your opposing counsel is arguing, though, is that, yes, there was a danger.

[00:22:02] Speaker 03:
But by coming and knocking on the door like a welfare check, they escalated that and increased the danger because the man became agitated at that point.

[00:22:18] Speaker 03:
Can you respond to that theory?

[00:22:19] Speaker 06:
Absolutely, Your Honor.

[00:22:20] Speaker 06:
So first, I believe in that's where Christensen's really instructive because in that case, the claimant was very focused on the baton round being fired through the window.

[00:22:30] Speaker 06:
And that's what caused him to take his own life.

[00:22:32] Speaker 06:
The court rejected that.

[00:22:34] Speaker 06:
The 10th Circuit rejected that as creating the danger.

[00:22:36] Speaker 06:
And in this case, the deputies, yes, they arrived to do a welfare check, and they knocked on the door.

[00:22:42] Speaker 06:
And then at that point, they heard a gunshot and a scream, and then the deputies backed off and began taking gunfire from Mr. Alirez.

[00:22:52] Speaker 06:
So that knocking on the door, certainly in Christensen, if an affirmative act by law enforcement of firing a baton round through a window did not amount to create a danger which caused them to kill themselves,

[00:23:03] Speaker 06:
I would argue that in this case, the act of simply knocking on the door certainly could not amount to creating a danger that resulted in him taking life from Mr. Avantis.

[00:23:14] Speaker 06:
Also, it's difficult to understand what law enforcement should have done.

[00:23:18] Speaker 06:
They were asked to perform a welfare check.

[00:23:22] Speaker 06:
There's very little they can do.

[00:23:23] Speaker 06:
If knocking on the door is what created this danger, what could law enforcement have done in that situation to avoid creating a danger?

[00:23:32] Speaker 06:
Really, the only option I can see is them not responding at all.

[00:23:36] Speaker 06:
If they'd responded in force with a tactical team, helicopters, and started barking orders over a PA system, to me, that's creating even more of a situation than simply knocking on the door.

[00:23:49] Speaker 05:
The only thing I heard from

[00:23:54] Speaker 05:
Council, Plains Council, is that he didn't, he, the one affirmative possible act was that they refused any assistance, at least early on, before they walked in.

[00:24:10] Speaker 06:
And Your Honor, I believe that's because this is general law enforcement work.

[00:24:14] Speaker 06:
It's not at all rare for law enforcement to, on a daily basis, they have to go conduct welfare checks.

[00:24:19] Speaker 06:
They cannot devote a significant amount of their manpower to every welfare call they get because they wouldn't be able to police the community in that situation, Your Honor.

[00:24:28] Speaker 06:
So it was appropriate at that point because this was just a welfare check until they heard the gunshots.

[00:24:35] Speaker 06:
I stand ready for questions, but I want to respect my colleagues' time.

[00:24:38] Speaker 07:
Let me ask you a question, then I'll go to all of you, but you've only dealt with the 1983 claim.

[00:24:44] Speaker 06:
Yes.

[00:24:45] Speaker 07:
What about the state law claim?

[00:24:47] Speaker 07:
That could have very different standards.

[00:24:50] Speaker 06:
Yeah, so there is... If it doesn't understate law, I don't know.

[00:24:54] Speaker 06:
There is the state law claim, plaintiff has

[00:24:57] Speaker 06:
alleged that we failed to investigate under 2911 of New Mexico law and also that there was negligence resulting in battery under 41412.

[00:25:06] Speaker 06:
I believe that the court correctly dismissed those claims with prejudice because there is no... Wasn't it summary judgment?

[00:25:16] Speaker 06:
Yes, I'm sorry.

[00:25:17] Speaker 05:
It was summary judgment on those claims.

[00:25:18] Speaker 06:
That's different.

[00:25:21] Speaker 06:
And I believe that was correct, Your Honor, because in New Mexico, there is no time, place, and manner restrictions in terms of how to actually conduct an investigation.

[00:25:32] Speaker 07:
Of course, in this case... Aside from the merits, don't we let the state courts handle that?

[00:25:41] Speaker 07:
We have a number of cases, I'm not sure they're unanimous this way, but there are a number of

[00:25:47] Speaker 07:
presidential opinions of this court directing district courts after disposing of federal claims before trial to then dismiss the state law claims but then go to state court.

[00:25:59] Speaker 07:
Why was that not done here?

[00:26:01] Speaker 06:
I don't know why that was not done here, Your Honor.

[00:26:04] Speaker 06:
It was, the state law claims were also dismissed with prejudice in this case, Your Honor.

[00:26:09] Speaker 05:
They were, summary judgment was granted after discovery.

[00:26:13] Speaker 05:
There's a difference.

[00:26:14] Speaker 06:
Summary judgment was granted on those claims.

[00:26:16] Speaker 07:
In New Mexico, we call that a dismissal.

[00:26:19] Speaker 07:
Sorry.

[00:26:24] Speaker 06:
I stand ready for any questions.

[00:26:26] Speaker 06:
Okay, thank you, Your Honor.

[00:26:27] Speaker 03:
Thank you.

[00:26:38] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:26:41] Speaker 04:
I'm happy to... Ms.

[00:26:42] Speaker 04:
Grant, right?

[00:26:43] Speaker 04:
I'm sorry?

[00:26:43] Speaker 07:
Ms.

[00:26:44] Speaker 07:
Grant?

[00:26:44] Speaker 04:
Yes, Haley Grant on behalf of city defendants, including the Las Vegas Police Department.

[00:26:49] Speaker 04:
Mr. Elidus brutally and sensibly shot and killed both Victor and Crystal Cervantes, but for the Las Vegas Police Department's part, they did not respond until after Elidus had already killed Mr. Cervantes and, of course,

[00:27:04] Speaker 04:
after Mr. Vances had suffered a fatal gunshot wound to the face.

[00:27:09] Speaker 04:
Of course, the police department could not have caused or increased the danger because those fatal gunshots had already happened.

[00:27:18] Speaker 04:
Plaintiff has not offered any proof in the record, as would have been in the case like the district court decision in Sanders, the Columbine High School case, where there was medical evidence that a teacher who was shot

[00:27:30] Speaker 04:
could have actually survived another three hours had the SWAT team and Incident Command not prevented people from going into the school and also prevented others from leaving.

[00:27:44] Speaker 04:
We don't have anything like that here, and unlike the wound there, this was a clearly fatal wound.

[00:27:53] Speaker 04:
Beyond that, realistically speaking, there was

[00:27:57] Speaker 04:
All the officers that responded that day did the absolute best they could to facilitate a rescue without recklessly endangering their own lives, lives of neighbors in the area, and even hastening the death of Ms.

[00:28:11] Speaker 04:
Ravantes herself.

[00:28:12] Speaker 03:
Well, Counselor, you've moved on from your first point, but I just quickly want to ask this question.

[00:28:18] Speaker 03:
So are you making a slightly different argument, I guess, than your colleague, which is,

[00:28:25] Speaker 03:
There's just no causation here?

[00:28:28] Speaker 04:
Yes, Judge Eide.

[00:28:29] Speaker 04:
And the lack of causation actually pertains to both the Section 1983 due process claim as well as the state court tort claims.

[00:28:37] Speaker 04:
In that way, those two claims are similar.

[00:28:39] Speaker 04:
They both require a duty and an approximate cause.

[00:28:43] Speaker 04:
And so even without having to dig into the details of the state claims, it resolves everything just for lack of that proximate cause.

[00:28:52] Speaker 05:
Did the district court rule on causation?

[00:28:55] Speaker 04:
Yes, Your Honor.

[00:28:56] Speaker 04:
I believe that the court did.

[00:29:00] Speaker 07:
Well, that might have preclusive effect on the state law claim, which would make or dismiss without prejudice to go to state court futile.

[00:29:17] Speaker 05:
They rule on merits.

[00:29:19] Speaker 05:
So there was a ruling on the merits on that?

[00:29:22] Speaker 04:
Yes, Your Honor, that was.

[00:29:23] Speaker 04:
And the reason for that was because city defendants still, well, I should say that the city still had a pending municipal liability claim that was not moved for until later after the court had already entered its decision.

[00:29:37] Speaker 04:
So because that federal claim still existed, it maintained jurisdiction.

[00:29:42] Speaker 04:
so that the district court could not exercise, dismiss the case under the theory that they should generally dismiss state claims when they have supplemental jurisdiction.

[00:29:58] Speaker 07:
In terms of causation, that applies to all the defendants or is it that your clients came later so it was clear that she had been fatally wounded by that time?

[00:30:09] Speaker 04:
No, Your Honor, and I think it's a really important point to make that the estate is not arguing that any of the officers caused the harm.

[00:30:19] Speaker 04:
They're arguing that we should have prevented the consequences of a harm for gunshots that we did not provoke.

[00:30:26] Speaker 04:
Responding to a welfare check is a perfectly legitimate police action.

[00:30:31] Speaker 04:
It's something that Bryson recognized in part because

[00:30:35] Speaker 04:
just because officers that surrounded the post office did not trigger some affirmative duty to protect.

[00:30:42] Speaker 04:
Because otherwise, you would have to apply that in every situation where officers ever responded to private violence.

[00:30:48] Speaker 04:
And as I believe it was the Sanders Court recognized, this would effectively paralyze the function of a police department.

[00:30:57] Speaker 04:
So it's because, especially just looking at the shocking and the conscience factor,

[00:31:04] Speaker 04:
in terms of the restraint that courts must have in interpreting due process, it would make no sense to rule that there's this affirmative obligation rather than an affirmative duty to avoid creating the danger.

[00:31:21] Speaker 04:
So essentially what the state is arguing inverts the substantive danger creation due process obligation.

[00:31:28] Speaker 04:
And it also does it for police officers where they are in a situation, as in the Perez case,

[00:31:34] Speaker 04:
in which they're operating under very rapidly evolving, intense circumstances where there's a lethal threat.

[00:31:42] Speaker 04:
And in those kinds of circumstances, there's no time for unhurried judgments or the kind of calm and reflective deliberation that you would need to apply deliberate indifference.

[00:31:52] Speaker 04:
And so just recognizing these circumstances, the Risen Court and even the Christians in court is cautioned against any kind of an expansion that would hamstring law enforcement.

[00:32:05] Speaker 04:
It's also worth mentioning that in Christensen versus City of Tulsa, officers did what the estate seems to be suggesting should have been done here.

[00:32:16] Speaker 04:
They engaged with force, but the result was the exact thing that they sought to prevent.

[00:32:25] Speaker 04:
There was a suicide.

[00:32:26] Speaker 04:
Here it would have been additional gunshots and potential other murders.

[00:32:30] Speaker 04:
So it was very important.

[00:32:32] Speaker 04:
that law enforcement be allowed to make the tactical decisions that they have on scene with the expertise that they have rather than in this after the fact charging them with injurious consequences that even the Sanders Court recognize, well like I said, paralyze the function of law enforcement.

[00:32:52] Speaker 07:
Do you want to leave any time for Mr. Robles?

[00:32:55] Speaker 04:
Yes, I'm sorry.

[00:32:56] Speaker 07:
He doesn't want to take any time.

[00:32:59] Speaker 07:
But, and I think Mr. Nieto went over a minute or two, did he?

[00:33:03] Speaker 07:
Yeah, so if that's, yeah.

[00:33:09] Speaker 07:
Please.

[00:33:14] Speaker 07:
May it please the court, my name is Luis Robles and I- We'll give you two minutes.

[00:33:19] Speaker 07:
I think that will make about the time even, yeah.

[00:33:22] Speaker 07:
So two minutes.

[00:33:25] Speaker 07:
Can you say anything in two minutes?

[00:33:26] Speaker 02:
Yes, I can.

[00:33:28] Speaker 02:
And it's to answer the question of proximate cause and why it matters so much here, and to give you more detail about how you can resolve this.

[00:33:37] Speaker 02:
There are two videos that would be very helpful for you to review.

[00:33:40] Speaker 02:
There's the Facebook video.

[00:33:41] Speaker 02:
in which the suspect, Mr. Alvarez, you know, videoed himself conducting the murder.

[00:33:47] Speaker 02:
And then there's the police officer, Deputy Vigil's body worn camera.

[00:33:53] Speaker 02:
And when you put them together, what you realize is that before the deputy showed up, Mr. Alvarez shot Ms.

[00:34:02] Speaker 02:
Cervantes in the abdomen.

[00:34:04] Speaker 02:
This is before the police ever show up.

[00:34:07] Speaker 02:
And then subsequently, when the deputies are at the door, there's a knock.

[00:34:12] Speaker 02:
And then you can watch it on the Facebook video.

[00:34:14] Speaker 02:
30 seconds later, you do not hear Mr. Alvarez react to the knock.

[00:34:21] Speaker 02:
He's focused on Mr. Vantes and says things that are despicable and mean and cruel.

[00:34:28] Speaker 02:
And then he shoots her in the head.

[00:34:30] Speaker 02:
And that's the first shot that you hear on Deputy Viejo's body-worn camera.

[00:34:35] Speaker 02:
So we know that before, especially from my clients who were unaware of any of this happening because they were out on patrol doing other things, that the fatal shot was delivered before

[00:34:50] Speaker 02:
the officers took any real action.

[00:34:53] Speaker 02:
And it wasn't because of a knock on the door.

[00:34:55] Speaker 02:
It's because of, unfortunately, Mr. Alivez's mental illness, his psychotic nature that caused this injury.

[00:35:04] Speaker 02:
And to say about the state law claim, there's also this problem.

[00:35:09] Speaker 02:
Even if you can see that our clients were negligent, the battery happened before the negligence.

[00:35:16] Speaker 02:
So there is no negligent causation of battery.

[00:35:19] Speaker 02:
And in terms of negligent investigation, the death, the fatal wound was delivered before you even had an investigation.

[00:35:29] Speaker 02:
That's why proximate cause matters in this particular case.

[00:35:32] Speaker 07:
And did the district court rule on the proximate cause?

[00:35:37] Speaker 02:
The motion that state defendants filed brought up the issue of proximate cause and Chief Judge Gonzalez in the memorandum of opinion and order for my argument did say that there was no proximate cause for the state law claims.

[00:35:57] Speaker 03:
How do we?

[00:35:59] Speaker 07:
Against the state police.

[00:36:00] Speaker 07:
State police.

[00:36:01] Speaker 07:
But didn't say lack of proximate cause with respect to the claims against the other defendants?

[00:36:06] Speaker 02:
Well, I know the order, and another unfortunate thing about how this matter was resolved, they might answer the question about supplemental jurisdiction.

[00:36:16] Speaker 02:
Right out of the gate, I filed my motion for summary judgment.

[00:36:20] Speaker 02:
The city filed theirs months later.

[00:36:23] Speaker 02:
Almost a year later, not to disparage Mr. Audion anyway, but he didn't enter the case until late and he didn't file his motion for summary judgment until some time after.

[00:36:32] Speaker 02:
So Judge Gonzalez was faced when my motion was ruled upon that he had to decide the claims I brought with these pending 1983 claims still hanging in the air.

[00:36:42] Speaker 02:
So I can understand how Judge Gonzalez ended up deciding the state law claims and not declining supplemental jurisdiction.

[00:36:50] Speaker 02:
And I understood, Your Honor, you had a question.

[00:36:53] Speaker 02:
No, please.

[00:36:54] Speaker 03:
I was just going to ask, how do we know that the shot to the abdomen was the cause of death?

[00:37:00] Speaker 02:
The shot to the abdomen was not the cause of the death.

[00:37:04] Speaker 02:
And that had attached the Office of the Medical Examiner's report that says as much.

[00:37:10] Speaker 02:
And the fatal shot was the shot to the head.

[00:37:13] Speaker 02:
And that was the one that was delivered when the deputies were knocking on the door.

[00:37:18] Speaker 05:
Well, their argument, though, isn't it that it wasn't fatal immediately and that had there been something done here, a better investigation or some action on the part of the officers, that they could have gotten in there and given her care.

[00:37:35] Speaker 05:
Because you can hear Crystal breathing on the video for some time.

[00:37:42] Speaker 05:
And so it's not about the shot itself, it's about the

[00:37:46] Speaker 05:
inability to get to her and render care while she continues to live.

[00:37:51] Speaker 05:
It wasn't immediately fatal.

[00:37:54] Speaker 02:
All of that is true and it is tragic and it is unfortunate and maybe the best way to answer your question is taking the estate's claim head on.

[00:38:06] Speaker 02:
There was this expectation by the estate that

[00:38:10] Speaker 02:
this group of deputies and officers who've never really worked together to clear a house should somehow form together an entry team, and that they should engage in a dynamic entry, confront a man who was mentally ill, had a gun, had already shot at them.

[00:38:30] Speaker 02:
And of course, the likely outcome of that would have been an officer-involved shooting.

[00:38:35] Speaker 02:
And if you look at this 10th Circuit case law on the Fourth Amendment, it's instructive.

[00:38:40] Speaker 02:
that given these factors, and you look at recklessness as this court has identified in 12 use of deadly force cases, you begin to realize, wouldn't that have been reckless?

[00:38:52] Speaker 02:
You know, you think about Sevier, and you think about Allen versus Sidney Muskegee.

[00:38:55] Speaker 02:
You have someone who's mentally ill, and that weighs against confronting that.

[00:39:02] Speaker 02:
You know.

[00:39:03] Speaker 02:
I get two minutes.

[00:39:05] Speaker 07:
You're close to six now.

[00:39:08] Speaker 07:
I apologize for going over.

[00:39:10] Speaker 07:
You could finish your last thought, but very briefly.

[00:39:14] Speaker 07:
And maybe you completed that thought.

[00:39:17] Speaker 02:
To put a point on it, the Fourth Amendment case law, this court's Fourth Amendment case law says that if those officers had done what the estate wanted, it would have been arguably reckless.

[00:39:32] Speaker 02:
OK.

[00:39:32] Speaker 02:
Thank you.

[00:39:33] Speaker 02:
Thank you.

[00:39:34] Speaker 07:
OK.

[00:39:36] Speaker 07:
Mr. Nieto, these cases get out of hand with all these defense counsel.

[00:39:42] Speaker 07:
Do you wish to respond in any way?

[00:39:44] Speaker 07:
Okay, thank you.

[00:39:48] Speaker 07:
Thank you, counsel.

[00:39:49] Speaker 07:
Cases submitted, counsel are excused.