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Case number 14-7069, Betty S. Flife, personally and as personal representative of the estate of Tremaine G. Flife, appellant versus District of Columbia, a municipal corporation at Elle.

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Mr. Latimer for the appellant, Mr. Shiffley for Appellee District of Columbia, Mr. Diso for Appellee Travis Eden.

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Thank you.

[00:01:09] Speaker 02:
Good morning, Your Honor.

[00:01:10] Speaker 00:
Good morning.

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Gregory Latimer on behalf of the appellant in this case, Betty Fly, along with me at the counsel table, Mr. Ernie MacIntosh, co-counselor in this matter.

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This is a case that was partially tried in front of the trial court.

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We assigned a number of errors.

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to what occurred below, the first of which I'd like to address is the negative supervision

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trial court into summary judgment upon... Can I just ask you, Mr. Latimer, before you proceed, just to be very clear with us, are there any aspects that you are not challenging that you think should not be set aside?

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It's the... Yes.

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The liability finding against Vasquez?

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The liability finding against Vasquez.

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Is that the only thing?

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That is the only thing.

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And back to the negligence of supervision, in this case, the facts before the trial court were that then Officer Egan was a police officer who had been declared unfit for duty.

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And he was ordered to undergo a fitness for duty examination because his supervisors did not believe that he is an individual that should have been

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issued a weapon and operating on the streets of the District of Columbia, enforcing the laws.

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He did not undergo that examination.

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And in fact, he finagled his way out of it by enlisting the assistance of a civilian personnel, a civilian member of the Metropolitan Police Department to issue his weapon back to him, put him back on the street.

[00:03:00] Speaker 08:
Wait, before you get into the facts of that, I want to ask you about the

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that the district says, in page 30 of its brief, it argues that having, since the district conceded that the two officers were acting within the scope of their employment, that the negligent supervision claim is duplicate.

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That is an argument that they... Then what's your answer to that?

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Well, first of all, Tulin... It seems to make sense.

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Well, Bishop of Columbia v. Tulin rejects that opposition.

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In fact, that is... Isn't that the case they cited in support of it?

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uh... and uh... uh... basis that they say giant on your right you're right you're right they said that what's the okay what's the issue of numbers is to learn and what is it uh... is it is it the case that was uh... decided by the pc court of appeals and they made the exact same argument there and the court of appeals uh... made very clear

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that negative supervision is a separate and distinct cause of action that allows for... But in that case, had they conceded?

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No.

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Had the defendant conceded that the plaintiff, that the two officers were, or that the employees were acting within the scope of their employment?

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Oh, of course.

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In Tulin, the officers were acting within the scope of their employment.

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All the officers were acting within the scope of their employment.

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The point is that when you're seeking direct liability against the District of Columbia based upon negligence of supervision, that is an independent tort.

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The District of Columbia is talking about situations where there is vicarious liability alleged.

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That is not an independent tort, but is dependent upon the actions of the

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of the employee of the district of Columbia.

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This is not dependent upon the actions of the employee.

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So just to clarify your answer to my very first question, which was what are you not wanting to attack?

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And you said only the liability finding against Vasquez, but I take it it's also the liability based on the vicarious liability of the district.

[00:05:07] Speaker 08:
Well, you won that, didn't you?

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That you want to keep in place, too.

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You won that, right?

[00:05:12] Speaker 08:
Well, yes, but that was based upon the actions of... You want us... You're asking that we reverse the grant of summary judgment, right?

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We're on the negligent supervision claim.

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We're asking that you... Is that right?

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That is correct, but we're also asking that you reverse the summary judgment with respect to...

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Uh, officer, then officer Egan.

[00:05:34] Speaker 08:
Right, that's a separate issue.

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We'll get to that in a few minutes.

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But on the negative supervision, I mean, this is classic negative supervision in this case.

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I mean, you have the department itself determining that the man is unfit.

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Once he undergoes the fitness for duty examination, it is then discovered that this officer that was determined to be unfit was, in fact, ingesting illegal drugs.

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And then he is fired for ingesting illegal drugs from the department.

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But in the meantime, four days before they give him the test, he shoots Mr. Fleif to death.

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And the trial court initially said, well, we're going to grant summary judgment because you don't provide an expert.

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Well, then we point out to the court, well, the reason we didn't tell you about our expert was because the District of Columbia did not raise that issue.

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And the court so responded, issues a grant of summary judgment with respect to that because we don't have an expert.

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When we have, not only do we have an expert, but our expert is a sitting police chief,

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who has opined in a 30-page opinion, 10 pages of which are directed towards this issue, indicating that this is not only a negligence, but gross negligence on the part of the District of Columbia.

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The trial court then comes back after we file a motion to offer them in and says, no, the reason that you are not entitled to, that we're still going to grant judgment on this is because it is not a proximate cause.

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The fact that the officer is still on duty and is unfit is not a proximate cause of the death because any reasonable officer would have done the same thing.

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Well, first of all, proximate cause is an issue that almost universally, when it is not based upon a specific claim of law,

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almost universally, an issue for the jury.

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Let me just ask you, because it's distracting me a little bit, I'm trying to get the architecture of how your different arguments fit together.

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If the liability of the District of Columbia for assault and battery judgment stands, isn't that the jury's assessment of the full harm

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to your client, and in what respect would an opportunity to go to trial on either Mr. Egan's liability or section 93 assault and battery or on negligent supervision not be duplicative?

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How could the court sort that out if the verdict on vicarious liability for assault and battery stands?

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Well, first of all, the problem with that is that

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It is vicarious liability.

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It is not with regard to the actions of the District of Columbia itself.

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That's number one.

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Number two, it is for- So it covers Egan's actions.

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That's what I'm saying.

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Well, we don't know that.

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Well, that's what the District Court said.

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Well, no, the District Court didn't say that because the District Court put out a jury instruction that says both of the offices- But in the summer adjustment ruling that also said

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both the officers.

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Right.

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So we don't know which one.

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I mean, there was a liability finding with respect to Vasquez that he was liable for assault.

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And then the court indicates in this verdict form that, well, do you find that the District of Columbia, because of the actions of Vasquez and Egan, is responsible for assault and battery?

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And so

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That goes all into the confusing nature of the jury structures in the verdict form.

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That is another issue that we raise.

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But it doesn't specifically say that.

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One could argue that that is a position that clearly one could take.

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But there are other positions that, if you look on the other side of that coin, could also be taken.

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But what we're saying is, it's just assault and battery.

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You don't have, in this case, I mean, you eliminate the issue of punitive damages.

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So you wouldn't have a recovery for that because you can't have punitive against a municipality.

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So the individual officers are, when they're taken out of the equation, you eliminate that provision.

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You don't have damages that would be associated with wrongful death that would be spelled out in that particular context.

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Don't you have wrongful death damages?

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So punitive damages, you're seeking punitive damages under the claims against Egan for, under Section 93?

[00:10:14] Speaker 02:
Yes.

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And not assault and battery?

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Well, we were seeking them for assault and battery, but the court knocked out all of our claims with respect to Egan.

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We did not have an opportunity to ask the jury for damages against Officer Egan for punitive damages.

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So I mean, all of those things

[00:10:32] Speaker 08:
But you didn't see punitive damages in your negligence and supervision claim against the district, did you?

[00:10:40] Speaker 02:
No, sir, because that's the claim against the district.

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And my understanding of the law is that you're not entitled to punitive against municipality.

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And in a negligence context, punitives are not favored.

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So no, there were no punitive assault with respect to negligence and supervision.

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But turning back to that equation, when we talk about the- Let me just continue with Judge Dillard's question.

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Because her question about the jury's assessment of the damage to your client here.

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The juries assess the damage at x, and you got that, right?

[00:11:23] Speaker 02:
Yes.

[00:11:24] Speaker 02:
Well, we got a part of it, yes.

[00:11:27] Speaker 08:
Would the damages be different under the negligence supervision claim if you're not asking for punitives?

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In other words, if the jury knew everything you wanted it to know about Egan's drug use, about the fitness for duty, about all of these things against the district, would the damages be different?

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Would they be higher for your client because the jury knew that?

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Well, we believe so.

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And why is that?

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Isn't the damages, aren't the damages a set, a finite number?

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It doesn't, it doesn't change.

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They don't get higher if the jury thinks the defendant's behavior was worse, unless you're seeking punitive, which you just said you're not.

[00:12:18] Speaker 02:
Well, under negative supervision.

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I do see your point.

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I do see your point.

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But what I, what I, what I come back to is,

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Say for instance, we have two separate claims.

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And I'll do it in an automobile accident case.

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You have a claim that the mechanic failed to properly fix your tire.

[00:12:41] Speaker 08:
OK.

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And then you have a claim that the mechanic failed to fix your transmission.

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In those situations, the damage is clearly would be different.

[00:12:51] Speaker 08:
Yeah, but that's not this case.

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This case.

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This case.

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The jury assessed the damages to his family for his death at a hundred and, what is it, how much?

[00:13:05] Speaker 00:
180,000, 300,000.

[00:13:08] Speaker 08:
All right, fine.

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That's X amount, right?

[00:13:12] Speaker 08:
Now, so let's assume that you had also been able to pursue your case for negligent supervision against the district.

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And the district had known everything you wanted to know.

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I mean, the jury had known everything.

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You wanted to know about Egan and his drug use and everything.

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Wouldn't the damages be the same?

[00:13:35] Speaker 02:
Well, no.

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You had a survival action, and you got a wrong-for-death action.

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A survival action provides for the claims of the individual that he could have brought had he survived.

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And then you have wrong-for-death damages

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which are damages that would be assessed to the family for the loss that they had.

[00:13:56] Speaker 08:
But are those separate, are those both actionable against the district in your negligence supervision case?

[00:14:04] Speaker 02:
Absolutely.

[00:14:05] Speaker 08:
But that's my point.

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Even if there's two different, even if there's, okay, one was survivors and the other's wrongful death, right?

[00:14:15] Speaker 08:
Yes, sir.

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Okay, the jury assessed the damages

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with respect to those two, didn't it?

[00:14:21] Speaker 02:
The jury assessed the damages based upon a finding of assault and battery.

[00:14:25] Speaker 08:
Correct.

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Now, my question is, the facts, the damages to flights would be, are the same, you would be seeking exactly the same damages in the district, in your negligent supervision claim against the district.

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How?

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No, is it possible?

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Let's assume you tried them both.

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He hadn't granted summary judgment.

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Could you have gotten, say, the district, the jury knew that he had, he had, he shouldn't have been put back on duty, right?

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Suppose long ago he had testified.

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And the jury says, well, this guy shouldn't have been back on duty.

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Would it have assessed more damages against, could it have assessed more damages against the district?

[00:15:07] Speaker 02:
It could have a sense of different damages.

[00:15:09] Speaker 08:
What are the different damages?

[00:15:16] Speaker 08:
That's what you need to explain to me.

[00:15:18] Speaker 08:
I hear what you're saying, but I don't get where the damages would be different.

[00:15:23] Speaker 02:
Well, I think that what we have to first do is parcel out the fact that you're entitled to recover against each tort fee.

[00:15:31] Speaker 08:
I got it.

[00:15:32] Speaker 02:
There's an instruction that the court gives.

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Could you recover the $180 against each of the $360?

[00:15:39] Speaker 02:
Well, based upon the instructions that the court gave, you are entitled to recover those damages that are approximately caused by that particular defendant.

[00:15:48] Speaker 02:
Okay.

[00:15:49] Speaker 08:
So, in this case, the only negligence... But then you see, if you had had the negligence supervision claim go to the jury, wouldn't the jury have allocated?

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the damages between whether it was responded well.

[00:16:01] Speaker 08:
They're both against the district, right?

[00:16:03] Speaker 02:
Well, no.

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See, that's the point.

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They're not against the district.

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The district is simply vicariously liable for the actions of the officers.

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They're against the officers.

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So what you're saying is, the instruction itself says, those damages that are approximately associated with that defendant,

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So in this case, if I've got 10 defendants or if I've got one defendant, if you only call a part of my damages, which is what the instruction says, then you can only assess me for that portion of the damages that I am responsible for.

[00:16:37] Speaker 04:
Let me get it this way, Mr. Latimer.

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So you have actors on the street, the police officers, who shoot and kill Mr. Fly.

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And the harm, just apart from any legal theory, the harm that's caused, that's the survivor and the wrongful death to Mr. Fleck and his family, is let's say half a million dollars.

[00:17:00] Speaker 04:
That's the harm.

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And you have a range of theories for getting complete

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recovery for your client.

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You could get, let's say a different judge had had this case and knocked everything out except assault and battery and for reasons of qualified immunity found the officers not liable but found the district liable for assault and battery under vicarious liability, half a million dollars district.

[00:17:28] Speaker 04:
Let's say a different judge sees it differently and kicks out all the assault and battery, but keeps the constitutional claim in, and you get it against the district on negligent supervision.

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And again, let's say the individual defendants are judgment-proof or they're immune or whatever.

[00:17:47] Speaker 04:
half a million dollars from the district, right?

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So it's a different theory, but under my hypothesis, full recovery is being obtained.

[00:17:58] Speaker 04:
And then you couldn't, even if there were errors on all the other claims, it wouldn't be worth it to you to go back because there's not a different pot of harm that the jury hasn't yet

[00:18:10] Speaker 02:
Well, the problem with that, what you just said is, if in fact that is what happened here, then I could follow what you're saying.

[00:18:21] Speaker 02:
But it is not.

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Because when you take into account, you have to also take into account, and we haven't gotten to these points yet, you take into account that the jury, even though it found Vasquez liable for the tort of assault, it awarded no damages.

[00:18:36] Speaker 02:
Now that is an error no matter how you look at it because you are instructed that you at a minimum have to award nominal damages when there is an intentional tort.

[00:18:48] Speaker 02:
They didn't follow the instructions and we

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I mean, I can get to that point now.

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But the reason they didn't follow the instructions were because the instructions were extremely confusing.

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They made no sense.

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And they did not instruct the jury on how to act.

[00:19:06] Speaker 02:
What the court simply did was take a hodgepodge of a dicta from a number of cases, put it out there for the jury as if that is somehow going to tell the jury how they are going

[00:19:20] Speaker 02:
how they are to evaluate that case.

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It's like if you're at a law school and somebody reads you the Constitution, and they read you the provisions of the Bill of Rights, and now you're supposed to know how they are to apply in everyday life.

[00:19:36] Speaker 02:
It doesn't make sense.

[00:19:37] Speaker 04:
Is there authority for proportion?

[00:19:40] Speaker 04:
I could have the district judge said a portion liability

[00:19:46] Speaker 04:
proportionally, fractionally, with respect to fault for each of the separate defendants, is there law supporting that or are we just talking about because it's vicarious, it's 100%, 100%?

[00:19:59] Speaker 02:
Well, no, he could have done that.

[00:20:00] Speaker 04:
He could have done it.

[00:20:01] Speaker 04:
What's the law that supports that?

[00:20:03] Speaker 04:
I thought vicarious liability was kind of all or nothing.

[00:20:05] Speaker 02:
Well, if you're talking about vicarious liability, the District of Columbia is responsible.

[00:20:10] Speaker 04:
How about on negligent supervision?

[00:20:11] Speaker 02:
Negligent supervision is a claim against a district directly.

[00:20:15] Speaker 04:
But it's for harm that has been effectuated by its subordinates, and that's the same

[00:20:22] Speaker 02:
Not necessarily.

[00:20:24] Speaker 02:
And that is, no, because, and if you look at Tulan, that is exactly what the Court of Appeals said.

[00:20:30] Speaker 02:
Because in that case, the officer who actually performed the false arrest, they found, the jury found that that officer was not liable for false arrest.

[00:20:43] Speaker 02:
And the Court of Appeals made it clear that it doesn't depend upon the actions of the underlying officer in order for you to determine liability, because this is based upon what the supervisors did.

[00:20:58] Speaker 04:
In that case, it's- Somebody has to be liable for some person on the ground who interacted with the plaintiff has to be liable for something, for the negligence supervision.

[00:21:07] Speaker 04:
to have caused harm.

[00:21:09] Speaker 02:
That is not the law of the district.

[00:21:11] Speaker 04:
You can't have negligent supervision in the air.

[00:21:13] Speaker 02:
Negligent supervision is if you take a situation and you direct your individuals to do something that is inappropriate.

[00:21:22] Speaker 02:
illegal, or not just illegal, inappropriate.

[00:21:26] Speaker 02:
And that person may not be responsible because that person was following orders.

[00:21:31] Speaker 02:
So that person may not be responsible, but the supervisor is.

[00:21:35] Speaker 02:
And in this situation, that is what you have.

[00:21:37] Speaker 02:
Egan should not have been on the street.

[00:21:41] Speaker 02:
The district put him there.

[00:21:42] Speaker 04:
But it's, okay, I think we're, I don't want to beat the dead horse.

[00:21:47] Speaker 04:
You're saying Vasquez, the head to have awarded nominal damages against him.

[00:21:52] Speaker 02:
At a minimum.

[00:21:52] Speaker 04:
That was intentional.

[00:21:53] Speaker 02:
At a minimum.

[00:21:54] Speaker 02:
I mean, and that's the, that is the law, that is the jury instruction.

[00:21:58] Speaker 02:
They did not, and

[00:22:01] Speaker 02:
Because of that, that is one more indicator of the fact that the jury instructions were inappropriate, confusing, and misleading to the jury, and they didn't follow them.

[00:22:13] Speaker 02:
Because had they done so, that is what added to the minimum what they would have done.

[00:22:17] Speaker 02:
But when we get back to this... I'm sorry.

[00:22:19] Speaker 08:
Go ahead, you can... Your time is up.

[00:22:23] Speaker 02:
It is just about...

[00:22:25] Speaker 02:
The point is that there are claims against Egan that could have gone to the jury.

[00:22:30] Speaker 02:
No matter how we look at this, it would not have been subsumed by any other award that was given in this case.

[00:22:38] Speaker 02:
Neither saw on battery, and we still believe that with regard to the negligence and supervision, that is a claim that should have gone to the jury.

[00:22:46] Speaker 02:
There's no law anywhere supporting what the trial court did with respect to that.

[00:22:53] Speaker 02:
If I have a moment, I'd like to reserve that.

[00:22:56] Speaker 08:
I'll give you an extra minute or two.

[00:22:58] Speaker 08:
OK.

[00:22:58] Speaker 08:
Yeah.

[00:23:00] Speaker 08:
Thank you.

[00:23:00] Speaker 08:
Well, let's hear it.

[00:23:01] Speaker 08:
We'll get you first from the district.

[00:23:03] Speaker 08:
Right?

[00:23:04] Speaker 08:
OK.

[00:23:04] Speaker 08:
Yeah, go ahead.

[00:23:10] Speaker 06:
Thank you, Your Honor.

[00:23:11] Speaker 06:
May it please the Court, Carl Schifferle for the District of Columbia and Officer Vasquez.

[00:23:17] Speaker 06:
It is correct that Ms.

[00:23:19] Speaker 06:
Flith would not be entitled to reinstatement of her negligent supervision claim because it could only lead to an impermissible double recovery.

[00:23:27] Speaker 06:
The jury already awarded a verdict against the district for assault and battery, as Mr. Latimer acknowledged.

[00:23:32] Speaker 06:
He's not challenging that verdict.

[00:23:35] Speaker 06:
That would stand.

[00:23:36] Speaker 06:
And in light of that verdict, the jury has awarded Ms.

[00:23:40] Speaker 08:
Fleith the damages for- How did it calculate the damages in the assault and battery claim before it deducted the medical expenses?

[00:23:51] Speaker 08:
Well, it was- Do we know how it calculated them?

[00:23:55] Speaker 06:
No.

[00:23:56] Speaker 08:
Okay, well, isn't it quite likely that had the jury known about Egan's drug use, about the fitness for duty, about all these other things, that it would have assessed the damages much higher?

[00:24:13] Speaker 08:
No, Your Honor, that would all go... Even if the negligent supervision had gone to the jury?

[00:24:20] Speaker 06:
No, Your Honor.

[00:24:20] Speaker 08:
Isn't it pretty obvious that it would have been much higher at that point?

[00:24:23] Speaker 06:
No, Your Honor.

[00:24:25] Speaker 06:
Why not?

[00:24:26] Speaker 06:
Because the jury is not awarding damages based on the wrongfulness of the defendant's conduct.

[00:24:31] Speaker 08:
You just told me there's no calculation in the record about how much, how they got to the 180,000.

[00:24:38] Speaker 06:
Correct.

[00:24:39] Speaker 08:
So they picked the number out of the air, right?

[00:24:42] Speaker 08:
Don't you think they would have picked a bigger number if they had known about all this?

[00:24:46] Speaker 06:
No, Your Honor, not permissibly.

[00:24:48] Speaker 06:
I mean, the jury is not in... But we would never know that.

[00:24:50] Speaker 08:
If the, in other words, if the, if the judge hadn't, this court hadn't granted summary judgment on negligent supervision, the jury would have had both, both theories before it.

[00:25:01] Speaker 06:
I understand that, Your Honor, but the fact that multiple theories can be found by the jury doesn't mean that the defendant, or excuse me, the plaintiff is entitled to more damages.

[00:25:12] Speaker 06:
I mean, that's the Medina case.

[00:25:13] Speaker 06:
Even if there are multiple theories of recovery, you're only entitled to one recovery, one damage award, not duplicative awards, and that's what the plaintiff is seeking in this case.

[00:25:24] Speaker 06:
The wrongfulness of the defendant's conduct might be relevant to punitive damages, but

[00:25:29] Speaker 06:
Mr. Latimer conceded there are no punitive damages available against the district and so to the extent any evidence regarding negligence supervision would have been admitted it would have been admitted only for liability not for damages and having liability already having been found against the district

[00:25:45] Speaker 06:
There, again, would be no basis for reinstating the negligent supervision claim just to establish liability when it's already been established under a different theory and, you know, with no ability to seek duplicative recovery, there is no harm in the district court summary judgment ruling on the negligent supervision claim against the district.

[00:26:11] Speaker 06:
We do have the additional arguments as well why

[00:26:14] Speaker 06:
In any event, the entry of summary judgment on the negligence supervision claim would still be appropriate.

[00:26:20] Speaker 06:
Part of that will be gotten through by Mr. Diso on behalf of Officer Egan.

[00:26:25] Speaker 06:
So unless the court has specific questions on that.

[00:26:27] Speaker 08:
Are you not prepared to talk about Officer Egan at all?

[00:26:31] Speaker 08:
Should we wait for your co-counsel on that?

[00:26:33] Speaker 06:
I mean, I'm happy to address it.

[00:26:35] Speaker 06:
I mean, it is part of our argument.

[00:26:38] Speaker 06:
I'm not representing Officer Egan, but I am representing the district, of course, who would be liable.

[00:26:43] Speaker 08:
Right.

[00:26:43] Speaker 08:
I mean, if we were to reinstate the, if we were to reverse the negligence supervision thing, then Officer Egan's behavior would be of great interest to the district, right?

[00:26:55] Speaker 06:
Yes.

[00:26:56] Speaker 06:
Yes.

[00:26:56] Speaker 06:
That's correct.

[00:26:57] Speaker 06:
But to the extent that this Court does affirm the summary judgment against Officer Egan, there could be no basis for reinstating the negligence supervision.

[00:27:08] Speaker 08:
So then you're prepared to talk about Egan then?

[00:27:13] Speaker 06:
I'm happy to address any questions.

[00:27:14] Speaker 08:
So let me ask you this.

[00:27:15] Speaker 08:
If the district court says, he said,

[00:27:21] Speaker 08:
He said that under the applicable standard, the objective standard, what a reasonable officer would do in these circumstances, that given the radio broadcast, that it doesn't make any difference at all whether Vice had a knife or not.

[00:27:43] Speaker 08:
Correct?

[00:27:44] Speaker 08:
Yes.

[00:27:45] Speaker 08:
That any officer having heard the radio broadcast under these circumstances would have acted, this is a reasonable response, even if Vice didn't have a knife, correct?

[00:27:57] Speaker 08:
Okay.

[00:27:57] Speaker 08:
I got that.

[00:27:59] Speaker 08:
And that's what you argue.

[00:28:00] Speaker 08:
But isn't it, under the circumstances of this case, isn't the critical question what happened when Vice turned around

[00:28:11] Speaker 08:
I mean, if, as Egan says, Feis turned around and attacked Officer Egan, then obviously the district court got that right, correct?

[00:28:24] Speaker 08:
His response was what any objective, what any reasonable officer would have done in a certain sense.

[00:28:30] Speaker 08:
But the only testimony we have that Feis actually turned around and attacked is Officer Egan.

[00:28:41] Speaker 08:
That's all we have, and suppose he's wrong, suppose he's lying about that.

[00:28:47] Speaker 08:
Suppose Feis, who Officer Regan had told to stop, turned around in order to stop.

[00:28:57] Speaker 08:
That wouldn't have been a justified shooting, right?

[00:29:01] Speaker 06:
on the officer Egan may have an argument nonetheless let me address though your honors it's stick with my question right so look so he couldn't have if if flies had turned around

[00:29:16] Speaker 08:
Let's talk about the record for a minute, okay?

[00:29:19] Speaker 08:
So you and I are talking about the same thing?

[00:29:22] Speaker 08:
Okay.

[00:29:23] Speaker 08:
So we know what he can testify to.

[00:29:25] Speaker 08:
He says he turned around.

[00:29:26] Speaker 08:
He went through this hop, turned around and went after him with a knife, right?

[00:29:30] Speaker 08:
The only other two witnesses were Humdl and Vasquez, right?

[00:29:41] Speaker 08:
They observed

[00:29:43] Speaker 08:
the two of them, right?

[00:29:45] Speaker 08:
But they both testified that all they saw was the two facing each other, correct?

[00:29:52] Speaker 06:
Well, that Mr. Fleith turned around two-faced and made a move towards... Correct, sir.

[00:29:58] Speaker 08:
That's exactly right.

[00:29:59] Speaker 08:
They both testified, but they didn't testify about any other aspect of it.

[00:30:06] Speaker 08:
So suppose Egan's lying and that, in fact,

[00:30:12] Speaker 08:
Fleiss just turned around to surrender, because he was told to.

[00:30:18] Speaker 06:
Well, the plaintiff has the burden of proof.

[00:30:20] Speaker 08:
OK, but this is summary judgment.

[00:30:21] Speaker 08:
So is it your position that we have to accept the officer's testimony under these circumstances?

[00:30:28] Speaker 06:
I understand it's still summary judgment, but the plaintiff still has the burden of proof on summary judgment to come forward with sufficient evidence upon which a jury

[00:30:36] Speaker 06:
could find in his favor.

[00:30:38] Speaker 06:
And Officer Egan's testimony, we submit, was not materially genuinely disputed.

[00:30:43] Speaker 08:
It was consistent with- Well, let's look at that.

[00:30:46] Speaker 08:
That wasn't my hypothetical.

[00:30:48] Speaker 08:
That wasn't my question.

[00:30:49] Speaker 08:
But let's look at that for a minute, OK?

[00:30:56] Speaker 08:
OK.

[00:30:57] Speaker 08:
OK.

[00:30:59] Speaker 08:
All right, I just want to get this accurate so that we're talking about the same thing.

[00:31:03] Speaker 08:
Okay, we agreed that Humdl and Vaskas both testified that Fife turned around and they were facing each other, right?

[00:31:12] Speaker 06:
Correct.

[00:31:13] Speaker ?:
Okay.

[00:31:13] Speaker 08:
So now Egan testifies these three aspects of Egan's testimony that I wonder about.

[00:31:21] Speaker 08:
He said, first of all, he said, Feis jumped in the air and made this turn, right?

[00:31:30] Speaker 08:
And changed his momentum.

[00:31:32] Speaker 08:
Jumped in the air and changed his momentum.

[00:31:34] Speaker 08:
That's number one, right?

[00:31:36] Speaker 08:
And then he says, Egan says,

[00:31:39] Speaker 08:
Quote, I started running backwards, retreating.

[00:31:44] Speaker 08:
Right?

[00:31:45] Speaker 08:
That's what Egan says.

[00:31:46] Speaker 06:
Well, I don't recall the running.

[00:31:47] Speaker 06:
I think he stopped his forward momentum and began to go back.

[00:31:52] Speaker 08:
He says running backwards, retreating.

[00:31:54] Speaker 08:
And then he describes how Feist had the knife in his hand, weapon pointing down, right?

[00:32:04] Speaker 08:
The reason I go through those things is

[00:32:07] Speaker 08:
The only two witnesses who both said they saw their heads facing each other didn't testify about anything.

[00:32:16] Speaker 06:
Your Honor, this is happening within just literally seconds, a few seconds, so you have a very dynamic situation, but the basic construct is the same, that Mr. Fleith turns around to face Officer Egan and that... That's not the same construct, though, if it...

[00:32:41] Speaker 05:
if it's just turning around is different from running after him.

[00:32:46] Speaker 05:
And so you have a conflict in the evidence in the sense that you have the officer saying I was rushed and you have two other witnesses saying I didn't see that.

[00:33:00] Speaker 05:
Well, respectfully, I don't believe that was the testimony.

[00:33:04] Speaker 05:
That's the effect of the testimony is what I see.

[00:33:08] Speaker 05:
You don't have anyone else saying the officer was rushed.

[00:33:12] Speaker 05:
Let me just finish that.

[00:33:17] Speaker 05:
Especially in a case where the victim is dead, and so you don't have the obvious conflict that you would have if the victim were still alive.

[00:33:28] Speaker 06:
Respectfully, I don't think the testimony reads that way.

[00:33:31] Speaker 06:
Mr. Handel said...

[00:33:32] Speaker 06:
that Mr. Fleith went face to face with the officer.

[00:33:36] Speaker 06:
Officer Vazquez said Officer Fleith, or excuse me, Mr. Fleith made a motion towards Officer Egan.

[00:33:43] Speaker 06:
I think it is consistent in the relevant particulars.

[00:33:47] Speaker 06:
It's not going to be necessarily exact.

[00:33:49] Speaker 06:
I don't think you need exactness in each witness's testimony in order to avoid summary judgment.

[00:33:54] Speaker 06:
It is consistent

[00:33:55] Speaker 05:
I agree, but I agree with that, what you just said.

[00:33:59] Speaker 05:
I'm just concerned about how that applies here, and I'm concerned because it's a case, too, where the victim's not there.

[00:34:07] Speaker 05:
If the victim were alive, we'd have a jury trial.

[00:34:11] Speaker 05:
Right?

[00:34:12] Speaker 05:
Because the victim says, I didn't rush him.

[00:34:17] Speaker 06:
Well, I mean, it's our position, Mr. Fleith had a knife, and he would have to admit that if he was justifying truthfully.

[00:34:22] Speaker 06:
There was, in fact, a knife recovered on the scene.

[00:34:25] Speaker 06:
It was located right there.

[00:34:28] Speaker 05:
And just so I'm clear on this, if you turned around,

[00:34:32] Speaker 05:
and say that he had a knife in his possession, but if he just turned around, the officer couldn't shoot him if he wasn't being rushed, correct?

[00:34:41] Speaker 05:
Well, Mr. Deese, I think, can better address that.

[00:34:44] Speaker 06:
What's the district's position on that?

[00:34:48] Speaker 06:
I do agree that based on everything that Officer Egan knew, knowing, perhaps incorrectly, but not Officer Egan's fault, that Officer Vazquez had been attacked with a knife by Mr. Floyd.

[00:35:02] Speaker 06:
No, no, no, wait.

[00:35:02] Speaker 08:
Judge Kavanaugh, we're asking you about an earlier point.

[00:35:07] Speaker 08:
at the point at which he turned around.

[00:35:11] Speaker 06:
That's what the two of us are focusing on.

[00:35:13] Speaker 08:
I understand that, but... And at that point, it doesn't make any difference what the radio broadcasts say, right?

[00:35:19] Speaker 06:
Oh, respectfully, no.

[00:35:20] Speaker 08:
No, in terms of whether Fice attacked

[00:35:26] Speaker 06:
That's the question.

[00:35:29] Speaker 08:
If he attacked him, then Egan could certainly assume he had a knife because he had heard the broadcast.

[00:35:35] Speaker 08:
But if he didn't attack him, the fact that he attacked another officer a minute earlier doesn't tell us anything about whether he attacked this officer.

[00:35:44] Speaker 06:
I disagree.

[00:35:45] Speaker 06:
It indicates whether Mr. Fleith was a threat to Officer Egan, whether Officer Egan could reasonably believe that Mr. Fleith was a threat.

[00:35:55] Speaker 06:
And in order for that reasonableness to be assessed, we have to consider what Officer Egan knew.

[00:36:01] Speaker 06:
He knew that just moments before, Officer Vazquez had been attacked.

[00:36:06] Speaker 05:
But if he just turns around,

[00:36:10] Speaker 05:
And even if he has a knife, if he just turns around and there's some distance between the officer and him and he just turns around, you can't just shoot him.

[00:36:20] Speaker 06:
Well, the proximity was close enough where Officer Egan could have been attacked with that knife.

[00:36:29] Speaker 06:
And so we're talking about

[00:36:31] Speaker 06:
you know, literally a second or two to make that decision.

[00:36:35] Speaker 06:
The perception of threat, I think if an individual turns around suddenly at the officer after having just failed to yield to the officer and his commands to stop, I think that it would be reasonable in light of this particular record for the use of deadly force.

[00:36:56] Speaker 05:
Let me ask you a hypothetical about summary judgment.

[00:36:59] Speaker 05:
Suppose there are no witnesses.

[00:37:03] Speaker 05:
It's a police shooting, victim killed.

[00:37:08] Speaker 05:
Police says, police officer says, I was being rushed.

[00:37:13] Speaker 05:
Always summary judgment?

[00:37:17] Speaker 06:
In the absence of other evidence, yes, because the plaintiff has the burden of proof, ultimately, and has to come forward with sufficient evidence.

[00:37:24] Speaker 05:
Even though the whole thing will turn on one witness's credibility.

[00:37:28] Speaker 05:
I mean, it seems like a conundrum with the summary judgment standard in that hypothetical, which it's a function of the burden of proof.

[00:37:37] Speaker 05:
I mean, that's how the burden of proof is allocated.

[00:37:38] Speaker 08:
Let me read you just a follow-up on Judge Kavanaugh's question.

[00:37:41] Speaker 08:
In that very hypothetical, quite a few, the Ninth Circuit has said, and many other courts have agreed, they say, in the circumstances of the kind that Judge Kavanaugh just asked you,

[00:37:52] Speaker 08:
Therefore, the court must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story, the person shot dead, is unable to testify.

[00:38:07] Speaker 08:
given this, that's his point.

[00:38:10] Speaker 08:
That's the point.

[00:38:11] Speaker 06:
Every court has said that.

[00:38:12] Speaker 06:
I mean, I do understand the point.

[00:38:14] Speaker 08:
So we have to be especially, you agree we have to be especially careful here, right, to be sure that we aren't willy-nilly accepting self-serving testimony by the officer, right?

[00:38:26] Speaker 08:
You agree?

[00:38:26] Speaker 06:
Yes, but the plaintiff still has the same burden proof, regardless.

[00:38:30] Speaker 08:
Okay, but since we have to be especially careful about this, then why aren't the inconsistencies that, well, they're not necessarily inconsistencies, although some of them are, in the differences in the fact that Handel and Vasquez don't corroborate Egan's testimony under circumstances which they should be able to corroborate if it in fact happened that way?

[00:38:54] Speaker 08:
Isn't that enough for us to suggest that, look, this really ought to go before a jury, and we ought to get, you know, EGAN ought to be cross-examined, and the jury ought to know about the methamphetamines and the testimony from the expert witnesses about the impact that has on a person's ability to assess a situation?

[00:39:20] Speaker 06:
Well, as far as the evidentiary ruling the court made, that was not an abuse of discretion.

[00:39:24] Speaker 06:
I haven't had time to address that.

[00:39:26] Speaker 06:
But I think that was properly excluded.

[00:39:27] Speaker 06:
So we have the evidence that we discussed already.

[00:39:30] Speaker 06:
And I think that the two eyewitnesses, as well as the physical evidence, sufficiently corroborated officer Egan's testimony.

[00:39:40] Speaker 08:
You can't separate out the exclusion of the cross quite as neatly as you did.

[00:39:48] Speaker 08:
If the Ninth Circuit and the other circuits that have addressed this are right, that in the situation that Judge Kavanaugh has hypothesized, that courts have to be especially careful to make sure that we're not

[00:40:05] Speaker 08:
dismissing a case just on the basis of what could be self-serving evidence.

[00:40:09] Speaker 08:
We have to look at all the circumstantial evidence.

[00:40:12] Speaker 08:
We have to lean over backwards to make sure that.

[00:40:14] Speaker 08:
Then all of these additional little factors seem to become important.

[00:40:21] Speaker 06:
Well, I disagree with the way that your Honor phrased that.

[00:40:25] Speaker 06:
I think it is the same burden of proof, same summary judgment analysis, and it is the plaintiff's burden that summary judgment to come forward with sufficient evidence.

[00:40:36] Speaker 06:
There is a lot of evidence in this case.

[00:40:39] Speaker 06:
There's not just Officer Egan's testimony.

[00:40:40] Speaker 06:
There's the other witness testimony.

[00:40:42] Speaker 06:
There's the other physical evidence, eyewitnesses that the plaintiff put in the record at summary judgment and failed to do.

[00:40:50] Speaker 06:
In light of all of that, I think it was correct for the district court to enter summary judgment for Officer Egan.

[00:40:56] Speaker 06:
I know that my colleagues won't trust it.

[00:40:59] Speaker 08:
So that I totally understand you're arguing about the record.

[00:41:01] Speaker 08:
So Handel says, this is the evidence.

[00:41:05] Speaker 08:
He says, quote, they came close.

[00:41:11] Speaker 08:
He was facing Egan.

[00:41:13] Speaker 08:
And Egan was facing him, yes.

[00:41:20] Speaker 08:
So which is the Handel testimony you want us to rely on here that you think supports Egan's view?

[00:41:26] Speaker 06:
That Mr. Fleith went face to face with the officer.

[00:41:31] Speaker 08:
Went face to face.

[00:41:32] Speaker 08:
And what about Vasquez's testimony?

[00:41:34] Speaker 08:
What do you want us to rely on there?

[00:41:36] Speaker 06:
that Mr. Fleith made a movement towards Officer Egan.

[00:41:43] Speaker 06:
There's nothing in their testimony that contradicts Officer Egan's person.

[00:41:48] Speaker 08:
But those are your two, those are the two you think?

[00:41:52] Speaker 06:
Well, those are the only two eyewitnesses at the summary judgment stage where there was testimony.

[00:41:55] Speaker 08:
As far as you're concerned, the district is concerned, that's enough to

[00:42:01] Speaker 06:
Well, we do have the physical evidence as well that a knife was recovered.

[00:42:05] Speaker 08:
We're not asking about the knife at this point.

[00:42:07] Speaker 08:
The knife at this point is irrelevant.

[00:42:10] Speaker 08:
Because the question is, what happened when he turned around?

[00:42:14] Speaker 08:
Even if he had a knife turned around to surrender, he couldn't shoot him.

[00:42:19] Speaker 06:
Well, there's no evidence of that.

[00:42:21] Speaker 08:
Well, that's my whole point.

[00:42:23] Speaker 08:
The only evidence, to the contrary, is Egan.

[00:42:27] Speaker 08:
And that's why I asked you the question about the other two witnesses, because I want to be completely fair to the district as I think about this case.

[00:42:35] Speaker 08:
And I want to know what evidence you think helps your view about this.

[00:42:40] Speaker 08:
And you've told me the two parts of the testimony.

[00:42:43] Speaker 08:
So that's good.

[00:42:44] Speaker 06:
All right.

[00:42:46] Speaker 06:
Okay.

[00:42:46] Speaker 06:
Um, I'll let Mr D. So, uh, take a turn unless there are further questions.

[00:42:51] Speaker 06:
Um, I guess not.

[00:42:55] Speaker 08:
Um, I don't have any right now.

[00:42:58] Speaker 07:
Good.

[00:43:05] Speaker 07:
May it please the court, Robert D. So representing Travis Egan, the

[00:43:13] Speaker 07:
There is no credibility issue in this case because there is no evidence that refutes

[00:43:22] Speaker 07:
account of what occurred.

[00:43:24] Speaker 07:
But moreover, there is a great deal of evidence that supports Egan's count of what occurred.

[00:43:31] Speaker 07:
However, as the district court made clear, even if at the point where Egan and Flythe came together, even if Egan had not seen the knife at that point, Egan still would have been justified in using deadly force to apprehend Mr. Flythe, because the

[00:43:54] Speaker 07:
that Flithe, before they even got called to the scene, had committed unusual acts of violence, throwing the rocks through the windows, even though it was a property crime, and then Flithe even heard- I thought it was a bottle on this day, a rock another day.

[00:44:10] Speaker 04:
Pardon?

[00:44:10] Speaker 04:
Was it a bottle on it?

[00:44:11] Speaker 04:
A bottle?

[00:44:12] Speaker 04:
He threw a bottle out a window this day?

[00:44:14] Speaker 07:
On Christmas Day,

[00:44:17] Speaker 07:
He threw a bottle that didn't break the window.

[00:44:20] Speaker 07:
Then he went across the street and he got a brick from a construction site and threw the brick and broke the window.

[00:44:25] Speaker 07:
That was on 26.

[00:44:27] Speaker 04:
This is on 26.

[00:44:31] Speaker 07:
or two bottles against the other window that wasn't broken didn't break the window.

[00:44:36] Speaker 07:
But Mr. Hundle, the owner of the liquor store, was in the store.

[00:44:41] Speaker 07:
He called the police on both days.

[00:44:43] Speaker 07:
The first day they took a report, they responded that it was too late.

[00:44:47] Speaker 07:
The second day they called, and Egan and Vasquez were dispatched in separate cars.

[00:44:56] Speaker 07:
Egan was right around the corner, so he got there first.

[00:44:59] Speaker 04:
So I think we have that pretty clear.

[00:45:03] Speaker 04:
Let me ask you, I think it's your position that if we had all the evidence that we have, but if, independent of anything that happened that day, if Mr. Egan

[00:45:17] Speaker 04:
had a brain injury and lost his memory and so could not testify on the day.

[00:45:23] Speaker 04:
And therefore, we're not relying on his testimony at all that there still would be no trial issue on the question of the reasonableness of the force

[00:45:41] Speaker 04:
he committed any assault and battery, that he's privileged to have shot in the circumstances, taking all the evidence into account.

[00:45:49] Speaker 04:
There's no jury tribal issue.

[00:45:51] Speaker 04:
So we're not relying on Egan's credibility because you have an officer who's assisting another officer.

[00:45:58] Speaker 04:
The information Egan receives is distress call from officer who was unable, using

[00:46:07] Speaker 04:
the threat of his firearm to subdue a citizen, and in fact that the citizen lynched him and tried to harm him.

[00:46:15] Speaker 04:
So in the period of a minute following that, without knowing whether the knife is still on him or not, trying to tell him to stop running after him as was seen by the other witnesses, if he's within a few feet of him and turns around, your position is

[00:46:34] Speaker 04:
That's just enough.

[00:46:35] Speaker 04:
We don't need to know about whether flight had his hands down and said or, you know, to the side empty and said, sorry, sorry, sorry, don't shoot or whether he was lunging out of the night.

[00:46:47] Speaker 04:
We don't need to know any of that because given the circumstances that we that are that we do know, it's enough.

[00:46:55] Speaker 07:
I'm not sure about the sorry, sorry, sorry part, the surrendering, but the rest I agree with.

[00:47:02] Speaker 07:
In a case I would cite, it's a D.C.

[00:47:04] Speaker 07:
Court of Appeals case, Young v. Scales, 873A2nd, 337.

[00:47:10] Speaker 07:
It's a 2005 case.

[00:47:12] Speaker 07:
The facts are very similar.

[00:47:14] Speaker 04:
Is it in your brief?

[00:47:16] Speaker 04:
Pardon?

[00:47:17] Speaker 04:
Is it in your brief?

[00:47:19] Speaker 07:
It is not, Your Honor, and I'm embarrassed because I forgot it because it was my case.

[00:47:23] Speaker 07:
At the time I was doing the briefs, I was relying on the federal cases and the facts of this case.

[00:47:30] Speaker 07:
But in that case, Officer Young was in his private vehicle off duty.

[00:47:37] Speaker 07:
Mr. Scales approached him, leaned through the window and stabbed him.

[00:47:41] Speaker 07:
Officer Young got out of the car.

[00:47:44] Speaker 07:
showed his badge and gun.

[00:47:45] Speaker 07:
Mr. Scales ran around to the other side of the car.

[00:47:48] Speaker 07:
Officer Young hollered, drop the knife, drop the knife, get on the ground.

[00:47:54] Speaker 07:
Mr. Scales dropped the knife, said to Officer Young, you're not going to arrest me.

[00:48:01] Speaker 07:
If you want to arrest me, you're going to have to shoot me.

[00:48:03] Speaker 07:
This went back and forth a couple of times.

[00:48:06] Speaker 07:
Mr. Scales turned around, started to walk away.

[00:48:09] Speaker 07:
Officer Young shot him in the buttocks and arrested him.

[00:48:14] Speaker 07:
Mr. Scales sued.

[00:48:16] Speaker 07:
Officer Young moved for summary judgment and qualified immunity.

[00:48:20] Speaker 07:
The trial court denied it.

[00:48:23] Speaker 07:
Officer Young appealed to the D.C.

[00:48:24] Speaker 07:
Court of Appeals, and the D.C.

[00:48:27] Speaker 07:
Court of Appeals reversed and granted qualified immunity and summary judgment on the rationale that's very, very close to the trial court's rationale in this case.

[00:48:38] Speaker 07:
And the rationale is that once you have an individual who has committed an act of deadly violence, potentially deadly violence, even with a knife, that individual remains a threat until that individual is apprehended.

[00:48:56] Speaker 07:
And in this case, Officer Egan had the information that you cited.

[00:49:03] Speaker 07:
That's the information he had.

[00:49:07] Speaker 07:
And whether he saw a knife or not, based on that information, he still would have been justified in using force to include deadly force.

[00:49:22] Speaker 07:
had complied with his order and gotten on the ground.

[00:49:25] Speaker 04:
Now if he complied and gotten on the ground... But for the get on the ground, do we have testimony other than Egan's own?

[00:49:32] Speaker 04:
Other people hearing him say get on the ground or is it, are we relying on it?

[00:49:35] Speaker 04:
Because I'm trying to figure out whether, you know, you're asking us to affirm

[00:49:41] Speaker 04:
based on testimony of your client.

[00:49:44] Speaker 04:
And you know that there are issues of his fitness for duty and his state of mind and his medication.

[00:49:50] Speaker 04:
So I'm trying to figure out whether you have a theory under which we have zero reliance on your client's state of mind and testimony.

[00:49:58] Speaker 04:
And I think it's his testimony that brings in the command to stop.

[00:50:03] Speaker 07:
Right.

[00:50:04] Speaker 07:
Well, Mr. Hundal said that Egan said, stop, stop.

[00:50:08] Speaker 07:
and said what I actually said was get on the ground, get on the ground.

[00:50:12] Speaker 07:
And if you read Mr. Hummel's testimony, there is a communications issue.

[00:50:17] Speaker 07:
His mind was good and he recollected that he had a problem.

[00:50:22] Speaker 07:
Communicating.

[00:50:23] Speaker 04:
So is it enough to say get on the ground?

[00:50:25] Speaker 04:
You don't have to say stop or I'll shoot.

[00:50:27] Speaker 07:
Right.

[00:50:28] Speaker 07:
I've watched too much TV.

[00:50:28] Speaker 07:
Right.

[00:50:30] Speaker 07:
But he confirms that Egan was telling him repeatedly to stop.

[00:50:34] Speaker 07:
And of course, we know that Oscar Vasquez was chasing him and firing him.

[00:50:39] Speaker 08:
Maybe that's exactly what fight did, stopped and turned around, as he was told to.

[00:50:48] Speaker 08:
I'm sorry, I couldn't hear the first one.

[00:50:49] Speaker 08:
I said maybe that's exactly what Fife did.

[00:50:51] Speaker 08:
He stopped and turned around.

[00:50:55] Speaker 07:
He did turn around.

[00:50:58] Speaker 07:
Well, there's no question.

[00:50:58] Speaker 07:
He was told to stop and stopped.

[00:51:00] Speaker 07:
He was told to get on the ground.

[00:51:02] Speaker 08:
Well, so is your theory then that, let's assume all we know, let's assume the facts are that he stopped and turned around

[00:51:18] Speaker 08:
And your theory is that because he didn't get onto the ground, Officer Regan could kill him.

[00:51:25] Speaker 07:
Right?

[00:51:26] Speaker 07:
That's your theory.

[00:51:30] Speaker 07:
to Eagan because police officers are trained.

[00:51:34] Speaker 07:
You don't let somebody with a knife get within 21 feet of you because even if they do, even if you shoot them, they can still get you.

[00:51:44] Speaker 07:
We don't have that extra testimony in the record, do we?

[00:51:48] Speaker 07:
Well, the issues that you're raising now were not raised in the brief.

[00:51:51] Speaker 04:
But I mean the 21 feet, because I think your theory is here's someone who's

[00:51:57] Speaker 04:
armed, dangerous, non-responsive, and unpredictable.

[00:52:01] Speaker 04:
Yes.

[00:52:02] Speaker 04:
And my client is running after him.

[00:52:04] Speaker 04:
And when he stops, he stopped with Vasquez, too.

[00:52:09] Speaker 04:
Of course, Egan doesn't know the details of that.

[00:52:11] Speaker 04:
But it's reasonable to think, I think is your story, it is reasonable to think that someone who's been acting erratically, not yielding, lashing out, that when he wheels around, the officer has to assume that creates a danger situation.

[00:52:26] Speaker 07:
Both of the police experts address this, and I don't know that you have it in the record because this issue was not raised in the pleadings below, the specific issue that you're talking about.

[00:52:38] Speaker 07:
The plaintiff's expert said if the facts occurred, as stated, then it would have been a good shooting.

[00:52:44] Speaker 07:
The defense expert said the same thing, and I recall it's in one or both of those that, and I believe it's in the defense experts,

[00:52:53] Speaker 07:
which is, I believe the whole thing is in the record.

[00:52:58] Speaker 07:
It wasn't for summary judgment purposes because this issue wasn't raised.

[00:53:02] Speaker 07:
But he talks about the standard training that police officers are trained to do this.

[00:53:09] Speaker 07:
And in fact, they are.

[00:53:13] Speaker 07:
This is the training and this is what they do.

[00:53:18] Speaker 07:
I could give you a personal example, but this is what they are trained to do.

[00:53:23] Speaker 07:
If someone with a knife gets that close to you, you presume that you're in deadly danger.

[00:53:29] Speaker 07:
And this is in the testimony and the reports.

[00:53:38] Speaker 07:
at the summary judgment stage because it wasn't raised as an issue at the summary judgment stage.

[00:53:46] Speaker 07:
And I will say one of the confusing things in this case is separating what occurred and what was before the court at summary judgment as opposed to arguments that were made later.

[00:53:57] Speaker 07:
We got that.

[00:53:58] Speaker 07:
Okay.

[00:53:59] Speaker 08:
Did Mr. Latimer have any time left?

[00:54:02] Speaker 08:
Okay, you can take two minutes.

[00:54:10] Speaker 02:
I guess I want to address the point that you raised about the witnesses.

[00:54:13] Speaker 02:
First of all, there were several eyewitnesses to the shooting.

[00:54:19] Speaker 02:
Vasquez was a block away, or two blocks away, in the 400 block of water.

[00:54:25] Speaker 02:
The shooting occurred in the 600 block.

[00:54:27] Speaker 02:
The witnesses, Mr. McConnor, Mr. Floyd, I'm sorry, Mr. Floyd, Mr. Edmonds, and Mr. Hundle.

[00:54:34] Speaker 02:
Those were the three witnesses.

[00:54:35] Speaker 02:
Mr. Floyd, Ms.

[00:54:36] Speaker 02:
Edmonds,

[00:54:37] Speaker 02:
testified in his statements that it was before the trial court that the officer got out of the vehicle and was running behind him, shooting at him.

[00:54:49] Speaker 08:
But that was Vazquez.

[00:54:50] Speaker 00:
No.

[00:54:51] Speaker 02:
No.

[00:54:51] Speaker 02:
That was Floyd and Edmonds.

[00:54:53] Speaker 08:
No, no, I'm saying, but they were testifying that that's what Vazquez was doing.

[00:54:56] Speaker 02:
No.

[00:54:56] Speaker 02:
No.

[00:54:57] Speaker 02:
This is in the 600 block as well.

[00:54:59] Speaker 02:
This is what Egan was doing.

[00:55:00] Speaker 02:
Egan gets out of his car and in fact, Hundl says the same thing.

[00:55:03] Speaker 05:
The central unsworn statements, I mean, that was the issue, right?

[00:55:07] Speaker 02:
Those were statements given to the police, and those were in the record.

[00:55:12] Speaker 05:
Yeah, Cloyd and Edmonds.

[00:55:13] Speaker 02:
Right.

[00:55:14] Speaker 02:
And Vass and Mr. Hondo testified to the same thing.

[00:55:17] Speaker 02:
He gets out of the car.

[00:55:18] Speaker 02:
He's running behind him.

[00:55:20] Speaker 02:
He's shooting at him as he's running.

[00:55:22] Speaker 02:
He hears stop, stop.

[00:55:23] Speaker 02:
Nobody hears his get on the ground.

[00:55:25] Speaker 02:
He hears stop, stop.

[00:55:27] Speaker 02:
He turns around.

[00:55:28] Speaker 02:
He can see his head and his shoulders.

[00:55:30] Speaker 02:
He completely refutes the idea of what Egan says is that the man raised his hand.

[00:55:36] Speaker 02:
and had a knife in his hand.

[00:55:38] Speaker 02:
He didn't see a knife in anybody when he got out of the vehicle and walked by.

[00:55:43] Speaker 02:
And the fact is that the only person who gives this testimony is Egan, and the fact that the judge refused to allow us to cross-examine him.

[00:55:51] Speaker 02:
about his, even about his legal drug use, the legal drugs that the man was taking, the legal things that he was doing, all of those things had effects that our experts were prepared to testify as to the effects that they had.

[00:56:08] Speaker 02:
Even the sleep deprivation that he was going to, I mean he had so many medical issues

[00:56:14] Speaker 02:
anybody, anybody else, if they were on the stand, they would have been cross-examined.

[00:56:19] Speaker 02:
The court would not let us address those points, and we think that is one of the biggest errors in this case, even if you're going to let him testify to preclude us from cross-examining him.

[00:56:31] Speaker 02:
The only

[00:56:33] Speaker 02:
person and then rely on that person's testimony in order to make the assessment that you did was unfair to the plaintiff.

[00:56:40] Speaker 02:
The plaintiff did not receive a fair trial.

[00:56:42] Speaker 02:
Thank you.

[00:56:42] Speaker 02:
Thank you, Your Honor.

[00:56:43] Speaker 08:
Case is submitted.