[00:00:00] Speaker 01:
25, 51, 53, Rucker versus Snyder.

[00:00:08] Speaker 03:
May it please the court and your honors, Randall Wood appearing for the officers Will Mortenson and Mike Snyder.

[00:00:16] Speaker 03:
And also thank you for inviting us to Roswell. I've never been to Roswell before. Oh, you poor guy. Positive experience.

[00:00:23] Speaker 03:
Let me start out by saying that this is a tough case. And I want everyone to understand that when a person loses their life, the officers certainly regret that, and that's certainly the case here. But this is also a case that I think is very unique, especially when you consider everything that's happening, everything that's facing these officers, and especially when you consider that in the midst of everything that's happening, there's this transformer that explodes. And so we have a situation where, you know, if this is a, you know, the phrase is a tense, rapidly evolving, uncertain circumstance.

[00:01:02] Speaker 03:
Well, that's this case. So that's why I think it's appropriate to consider both the facts that appeared, that happened before the transformer exploded and the facts that happened after. Because the facts that happened before are going to inform how the officers perceive what's going on. So what do the officers know?

[00:01:23] Speaker 00:
First of all... Can we talk about, we have a limited scope of our review, right? Yes. And so what aspect of your argument, very precisely, is allowed into this limited scope of review, this abstract question of law that we're allowed to consider? Because it seemed to me that there was a lot of revisiting of the district court's facts, which we can't do at this stage.

[00:01:48] Speaker 03:
I've certainly tried in the appellate briefs and in my comments today to confine what do I see in the district court opinion and to not depart there from. That is what our appeal is based upon is what do we find from the district court opinion. Well, the district court opinion says here's what the officers knew leading up to the explosion and here's what happened afterwards. And that's what I'm confining this to.

[00:02:13] Speaker 00:
So your argument is that the there was a segmented analysis that the district court should not have... Correct, yes.

[00:02:20] Speaker 03:
I would say that in the Barnes v. Felix, and just in general, it makes sense to me for the court to say, okay, let's look at how could the officers have perceived that explosion and some of the things that happened just seconds later. So the officers knew, and this is all coming right out of the appellate record and the district court opinion, they knew that from the outset this is a serious case, Mr. Rucker was not out there just committing minor misdemeanors or this didn't start out as a mental health call.

[00:02:53] Speaker 03:
He was a felon, serious felonies, violent felonies. He's out stealing cars one after the other.

[00:03:03] Speaker 03:
He is seen with a gun just hours before this happened.

[00:03:07] Speaker 03:
He shows the officers that he will not respond to a request for police contact. He will lead officers on the pursuit.

[00:03:15] Speaker 03:
So he's a person who was posing a threat to the safety of the city of Tulsa.

[00:03:20] Speaker 01:
I think you have very good arguments, but how do you overcome Judge Egan's ruling that we cannot review that...

[00:03:35] Speaker 01:
a reasonable jury could find that no reasonable officer would think that the victim had a gun at the time he was lying down by the vehicle?

[00:03:46] Speaker 03:
So if I'm understanding the court's question, I would point the court to the assumption by the district court on page 21 of the opinion that says the officers could reasonably assume that that bang Was a gunshot.

[00:04:06] Speaker 01:
Right. But despite that, the judge said a reasonable jury could find that no reasonable officer would think that he had a gun when he was lying there. And if a reasonable officer, if the jury found that, made that finding, that it was unreasonable of the officers to think that he had a gun, then shooting him on the ground was clearly established as being excessive use of force, was it not?

[00:04:40] Speaker 01:
I can see you make, I think, excellent arguments that a jury is not going to make that finding.

[00:04:45] Speaker 01:
But that's, and you may well win a trial, but we have to accept the district court's ruling on whether there was sufficient evidence on a critical issue. And it did.

[00:05:02] Speaker 01:
And even if it was reasonable for them to think that what happened at the Transformer was a gunshot, she said, a reasonable jury, but I won't repeat myself, but I just don't see how you can overcome that, so tell me when I'm missing.

[00:05:21] Speaker 03:
So as you know from the appellate briefing, our argument is, again, just drawing from the body of the universal facts found by the court, the conclusions and assumptions used by the court are that at one point the officers could reasonably believe, okay, there's a gunshot.

[00:05:40] Speaker 03:
Now from that point then, all right, what would the officers know? They would know, okay, he's alive, has the physical capability of shooting, He has a gun in his hand, and he is shot at the officers. And we know how the officers reacted to that. They say, he's got a gun. And thereafter, and I think what the court was then becoming, the district court was becoming focused on was thereafter they didn't see a gun. Okay, and I acknowledge that.

[00:06:11] Speaker 03:
The officers did not see a gun. And when they later came up around the truck, they did not see a gun.

[00:06:19] Speaker 03:
But the officers could...

[00:06:22] Speaker 03:
from the district court's own assumption and finding of fact, could conclude that man over there at one point in time had a gun. And that situation, okay, at what point does that situation change? That's where the officers are now kind of in a difficult position.

[00:06:41] Speaker 01:
That's an excellent argument, it seems to me. But it is inconsistent with what the judge said a jury could find. And we may disagree. If that was part of something we could review on appeal, we might say that Judge Egan goofed on that. But we can't do that. We have to accept her determination. that when these shots were being fired at least some of the shots no reasonable a jury could find that no reasonable officer could think that the victim had a gun and once you've got that finding that possible finding by the jury you've got a clearly established excessive use of force I think they're making a good argument why she was wrong, but we can't review that.

[00:07:44] Speaker 03:
I read the district court opinion as focusing on a different...

[00:07:49] Speaker 03:
approach to that. Maybe I'm misunderstanding the district court opinion, but I believe what really drove the district court's opinion was thereafter they never saw a gun. At some point in time, as the passage of time progresses, the officers can conclude he no longer poses a threat because they didn't see a gun and there was no other gunshot sent.

[00:08:15] Speaker 01:
Okay, so perhaps let's read her ruling that way. I'm not sure that that's correct. But even then, you seem to be conceding at some point, you read her as saying at some point, no reasonable officer, a jury could find that no reasonable officer could believe he had a gun at some point. But there were shots being fired for a long period of time. If they were ever shooting at him when they could not reasonably think he had a gun, then that was excessive use of force.

[00:08:52] Speaker 01:
Maybe there were some shots that were okay.

[00:08:56] Speaker 01:
But if there were any shots that were that were clearly unlawful use of force, excessive force, then we can't grant summary. We can't say that summary judgment should be granted. Can we?

[00:09:15] Speaker 03:
Your Honor, I read the opinion differently. And maybe I misread it.

[00:09:20] Speaker 01:
Well, maybe I misunderstood you.

[00:09:22] Speaker 03:
I just believe that.

[00:09:24] Speaker 01:
Do you think that the judge said that there came a point when no reasonable officer could have thought that he had a gun.

[00:09:35] Speaker 03:
So that's why I come back to the facts, the universe of facts is found by the court. Of course, the court knows I emphasized that fact. The officers could believe, reasonably believe, that at one point in time he had a gun and had fired at the officers. So then thereafter, and we're not talking about a lot of time, because from the time that the Transformer exploded until Officer Mortenson fired his last shot is 50 seconds.

[00:10:05] Speaker 03:
From the time that the transformer exploded until Officer Snyder fired his last shot is just under two minutes. So there's a time lapse there, and that's where the officers are now then being put into difficult position of saying, okay, at some point in time under the universe of facts found by the district court, he had a gun.

[00:10:26] Speaker 03:
And his manifest intention was to shoot the gun, cause harm.

[00:10:30] Speaker 01:
But at some point, they had to have known that he didn't have a gun. No reasonable officer. And when was that? If that was two minutes after the transformer, then you're okay. But I don't think that's what she's saying.

[00:10:45] Speaker 03:
And that's where I think it becomes very difficult to slot this case into any clearly established law. You know, where do you say, okay, the officers, seeing certain behaviors and movements, can decide or should have decided that the law is clearly established that after this certain period of time, then it becomes constitutionally unreasonable for them to continue to believe...

[00:11:14] Speaker 01:
Are you saying that even though at some point, let's say after 30 seconds, no reasonable officer could think he had a gun, that it was still not an excessive use of force to shoot at him, at the victim?

[00:11:28] Speaker 03:
Well, my position is that...

[00:11:31] Speaker 03:
because of their their distance they're 60 to 75 feet away they are seeing the movement and we know that they're calling out they're not ignoring what's happening they're calling out he's got a gun he's got a gun drop the gun don't you reach or he's reaching okay uh from on that uh facts as shown not only by the video but also by the district court opinion they're perceiving a threat and under that set of facts I think it's reasonable for the officers to believe that man that just shot at us could continue to be a threat until such time as enough time has passed that they are saying we can now go forward and see what's behind that truck.

[00:12:20] Speaker 00:
In what way do you think that what the district court did wrong here runs afoul of Barnes? Because as you confirmed in your remarks, that's your legal error, that you are...

[00:12:36] Speaker 00:
contending you should have jurisdiction to review. So in what way did the district court's analysis run afoul of Barnes v. Felix?

[00:12:43] Speaker 03:
So clearly the district court said, I am separately segmenting those analyses. I think what the district court failed to consider further was to say that in a matter of just a few seconds, This man had posed a deadly threat to the officers. Now there's a gunshot. And I'm running out of time, but I want to emphasize that under essentially the same facts, the court said the other two officers that arrived on the scene get qualified immunity.

[00:13:21] Speaker 03:
What did the officers know? They'd been investigating this man, came up on the scene, new shots had been fired, were told shots had been fired.

[00:13:32] Speaker 03:
The district court says it was reasonable for the officers on the scene at first to believe that a shot had been fired and they're granted qualified immunity. So I want to emphasize that point.

[00:13:46] Speaker 03:
Also, I want to emphasize that Again, because of the unique nature of this case, it's hard to find that this case fits into clearly established law. I think Fincher v. Barrientos has many significant factual differences. I think Zia Trust has many significant factual differences, and even the district court rejected Zia Trust as something that could be...

[00:14:12] Speaker 03:
Similar case, and I want to emphasize also as my time expires the recent case of Zorn versus Linton that the Supreme Court issued where it's pounding home that it is not enough just to say here's a principle of law that we're going to announce that the officers violated. You have to tie it to cases that are, that have to be exact.

[00:14:38] Speaker 03:
But it has to be more close maybe than we had previously understood, more similar in terms of facts and claims and circumstances. So I urge the court to look at that case and consider that and to grant my officers qualified immunity in this difficult case. Thank you.

[00:14:56] Speaker 01:
Thank you.

[00:15:07] Speaker 02:
Good afternoon. Bob Blakemore for the appellee, the estate of Jacob Rucker.

[00:15:16] Speaker 02:
Responding to some of the things that Mr. Wood addressed, and I think that the court was at least implying, is the issue of jurisdiction. And I've been practicing for a long time. I've been practicing civil rights for a long time. And it's not always clear to me on these cases when...

[00:15:45] Speaker 02:
when it's a factual issue, a factual dispute versus a discreet legal issue. In this case, it seems to me, and we argue in the statement of jurisdiction in our brief, that the issue of whether it was reasonable for officers Mortenson and Snyder to believe that there was a threat is an inherently factual question.

[00:16:23] Speaker 02:
And we cite a couple of cases for that very issue, and that's Clerkley v. Holcomb and Finch v. Rapp.

[00:16:39] Speaker 02:
which both cases say that the issue of the reasonableness of an officer's belief is a fact issue and we assert that that's really the overriding argument that's being made by the by the appellants in this case and on this appeal.

[00:17:05] Speaker 00:
But what about the argument that the appellant is making about Barnes? I mean, if ultimately the district court didn't conduct this analysis in a way that the Supreme Court teaches is the right way to do it, how can we affirm it?

[00:17:26] Speaker 02:
Well, one, I think that they're incorrect in the argument, and I realize that Barnes is a newer case, but we were able to find a couple of circuit cases, including one from the 10th that have been decided since Barnes.

[00:17:48] Speaker 02:
One is Romero v. City of Lansing 6th Circuit, where the court says that they can still divide the incident into segments, but after Barnes, it's clear that they must consider the entire sequence. And in so doing, the reasonableness of an officer's use of deadly force may decline as the situation progresses.

[00:18:17] Speaker 02:
And that's Romero. And then the other one is Tenth Circuit, Teets, which we also cite, and they're segmenting the case, again, post Barnes into pre-restraint and post-restraint use of force. And I think when you look at what the district court did in this case, she clearly considered the the totality of the circumstances and all the facts preceding the shots that are at issue in this case, for one, there were other claims for excessive force that we made that were earlier in this incident, and she said that those were Those were reasonable.

[00:19:16] Speaker 02:
The use of force in those instances were reasonable. She did look at the fact that there was this purported...

[00:19:27] Speaker 02:
some officer purportedly saw, um, Mr. Rucker with a gun the day before she considered the fact that he has his criminal record. Um, and importantly, uh, as, as discussed during the, uh, council's argument, she considered the, the popping of the transformer, which, um, Mr. Randall refers to as the transformer exploding.

[00:19:58] Speaker 02:
I think that's, again, going into how you interpret facts and can dispute facts. We think it's more of a popping noise, and that was how the district court characterized it based on the video and audio. So I...

[00:20:18] Speaker 02:
If the court does have jurisdiction and you get into the issue of Barnes, I think that even though her decision predates Barnes, I think it's completely consistent with the Barnes holding and how circuit courts have interpreted Barnes since it's been decided.

[00:20:43] Speaker 01:
We do have jurisdiction...

[00:20:47] Speaker 01:
If we assume the truth of what the district court said, we don't have jurisdiction to contest the district court's determination that a reasonable jury could find that no reasonable officer would think he had a weapon. But if we take that as given, then there's a question about whether The law is clearly established in that circumstance, given everything that happened up to that time.

[00:21:18] Speaker 02:
And I believe it was under Fancher. And to summarize what I think that this case is about and what Fancher is about, is that deadly force initially justified becomes unconstitutional when the threat dissipates.

[00:21:39] Speaker 02:
which is a 2013 case, well before the incident in this case, there was a deputy who encountered a suspect.

[00:21:52] Speaker 02:
The suspect grabbed for his service weapon. They struggled for the service weapon.

[00:21:59] Speaker 02:
Then the deputy tased. His name was Dominguez, and he let go of the weapon. Then he got into the squad car.

[00:22:09] Speaker 02:
there was a struggle inside of the squad car, shoots him in the chest, he slumps over, the car rolls backwards, and then he shoots him five or six seconds later six times.

[00:22:26] Speaker 02:
The circuit ruled that while the first shot was reasonable, the remaining shots were not, Because by that point, even though it was just seconds later, it was clear that the suspect no longer posed a threat.

[00:22:50] Speaker 02:
And I think that that's precisely the case here.

[00:22:56] Speaker 02:
And if you do accept the court's finding that...

[00:23:03] Speaker 02:
even after that initial pop, which could be perceived as a gunshot, reasonably perceived as a gunshot, there was sufficient time for both of the officers to reassess the threat.

[00:23:18] Speaker 02:
And then also, they both had cover.

[00:23:24] Speaker 02:
Officer Mortenson was under a stairwell. Officer Snyder was behind the squad car. There were no more pops after that.

[00:23:33] Speaker 02:
They knew that Mr. Rucker was badly wounded. He's on the ground. He never gets up into a shooting stance.

[00:23:44] Speaker 02:
And then three of the officers that were involved in this, including one Mortensen, all testified that they never saw a gun, never saw...

[00:23:58] Speaker 02:
anything resembling a gun or so there was nothing for there was no weapon for him to reach for and when you put all that together then there was sufficient time to reassess and I think it's Fancher is very much on point in establishing that this is a very similar situation again where Perhaps that deadly force was initially justified, but it dissipated based on the circumstances.

[00:24:41] Speaker 00:
The appellant points us to or asks us to consider the grant of qualified immunity to the other officers. the two other officers, DeGeorge and Myers. Is that instructive or how should that inform our thinking about the instant appeal?

[00:25:01] Speaker 02:
I don't think it has an impact because DeGeorge and Myers, they arrive 40 seconds later, they did not have the benefit of viewing and being able to see Mr. Rucker during the entire incident. I think that's what it came down to for the court as to why she granted qualified immunity to those two officers that, unlike Snyder and Mortensen, In the court's view, that George and Myers did not have sufficient time to reassess.

[00:25:52] Speaker 02:
They're coming in and it's very much they're going off of what they're hearing from Snyder.

[00:26:03] Speaker 02:
As we stated in our brief, we disagree with the court's ruling, but I don't think it impacts the analysis.

[00:26:15] Speaker 02:
And if there are other questions that the court has, I'm happy to answer those.

[00:26:26] Speaker 01:
Well, you have some more time if you want to speak, but you don't have to.

[00:26:32] Speaker 02:
I kind of view these as it's...

[00:26:36] Speaker 02:
Everything's in the brief, and when the court has questions, that's kind of what we're here to do is to answer those questions. If there are no further questions.

[00:26:44] Speaker 01:
Thank you, counsel.

[00:26:45] Speaker 02:
Thank you.

[00:26:47] Speaker 01:
Case is submitted. Counselor excused.