[00:00:02] Speaker 05:
case number 15-7040.

[00:00:04] Speaker 05:
Marietta Robinson, appellant, versus Sarah Pezet, officer at L. Mr. Los Eaton, for the appellant, Mr. Morterrano, for the appellee.

[00:00:17] Speaker 01:
Good morning and may it please the court, Tobias LaCitin of Siddeley Austin for the Appellant Marietta Robinson.

[00:00:23] Speaker 01:
I'd like to begin with the two independent grounds for Mrs. Robinson's First Force Amendment claim against Officer Sarah Pazat for shooting Mrs. Robinson's pet dog, Wrinkles.

[00:00:34] Speaker 01:
Officer Pazat should never have opened the door to Mrs. Robinson's bathroom, placing her face-to-face with Wrinkles.

[00:00:40] Speaker 01:
If she had not done that, we would not be here today.

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The defendants have justified Officer Pezat's decision to open the door by reference to the general interest in securing the scene of the execution of a search warrant, preventing the destruction of evidence, and officer safety.

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But I don't think the defendants have contested that it would have been unreasonable for Officer Pezat to open the bathroom door if she had known or should have known that Wrinkles was behind it.

[00:01:08] Speaker 01:
So really, that general interest is not dispositive here.

[00:01:12] Speaker 02:
And the ultimate question is, as a factual matter... Is it enough that Wrinkles was behind it or also that other officers had cleared the room?

[00:01:21] Speaker 02:
Well, I think there are four... If you're an officer and you walk by a door where a dog is barking, you don't know whether also in that door are five armed men.

[00:01:32] Speaker 02:
So I assume under those circumstances, it would be reasonable to open the door, or do you think not?

[00:01:37] Speaker 01:
I think that here it is the entire sequence of events that should have told Officer Pizot not only that Wrinkles was behind the door, but also that the room was safe and secure.

[00:01:48] Speaker 01:
So both.

[00:01:48] Speaker 01:
You agree it has to be both.

[00:01:50] Speaker 01:
Yes, that's right.

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Beginning with the search team's interaction with Mrs. Robinson when they first arrived on the property,

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In a situation that the defendants themselves have emphasized was deadly serious, Officer Besant was, by her own admission, laughing and joking around with the other officers in the search team, imitating Wrinkle Spark.

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Officer Selby similarly said that the officers at the back of the search line were talking to each other in a situation when they plainly should have been paying attention.

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to what their commanding officer was doing.

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This is the middle of the night.

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It's dark out.

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They've come to this property.

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And as they have emphasized many times, they don't know what they're going to find.

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That's the situation that calls for complete attention.

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And Officer Pesat certainly was not paying complete attention.

[00:02:32] Speaker 03:
I'm curious.

[00:02:33] Speaker 03:
Did you start with his argument because you think it's stronger than your argument that there was a genuine issue of fact over whether the dog was lying down before it was shot?

[00:02:42] Speaker 01:
Honestly, I think both of these arguments are equivalently strong.

[00:02:47] Speaker 01:
We emphasized the genuine issue of material fact in our briefs, because that seemed to be a sort of more glaring error in the district court's opinion.

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This one comes first chronologically.

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I'm happy to discuss them, of course, in whichever order the court prefers.

[00:03:00] Speaker 03:
If we were to agree with you about the first issue, I mean, the genuine issue on whether or not the dog was lying down, do we even have to address the opening door question?

[00:03:10] Speaker 01:
No.

[00:03:11] Speaker 01:
Either of these arguments, I think, would independently suffice to call for reversal here and then remand for a trial on the Fourth Amendment.

[00:03:19] Speaker 04:
Are you sure we wouldn't have to approach the first issue too?

[00:03:24] Speaker 04:
If we agreed with you on the second and remanded the district court, what about how would the district court handle the courts?

[00:03:35] Speaker 01:
Well, I think in that situation, that issue would probably go to the jury.

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And so it may be something that this court would want to offer guidance to the district court to address on remand.

[00:03:47] Speaker 04:
In other words, both issues go to the jury, don't they?

[00:03:50] Speaker 01:
Yes, I think that's right.

[00:03:52] Speaker 04:
So I'm a little puzzled as to why they're different.

[00:03:56] Speaker 01:
Well, I should say I do think both issues should go to the jury, because there are disputed issues of material fact on both issues.

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But I do think that they are independent grounds.

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And so even if you agree with us on one but not the other, either one independently would suffice to require remand.

[00:04:12] Speaker 04:
But you see my point.

[00:04:14] Speaker 04:
I'm not sure we should have more than one.

[00:04:17] Speaker 01:
Well, and I don't think that it is necessary to ignore it, because I do think that, as the Supreme Court has said, the Fourth Amendment reasonableness inquiry is a totality of the circumstances inquiry, and it certainly is appropriate to consider the entirety of Officer Pesad's conduct from the time she first arrived on the property.

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Was the qualified immunity issue raised below or not?

[00:04:37] Speaker 01:
It was not.

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The defendants did couch their arguments in their motion for summary judgment and reply in terms of qualified immunity, but at no point did they suggest that any of the legal issues that we're addressing here were not clearly established.

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They argued simply that on the merits, there had been no constitutional violations.

[00:04:55] Speaker 04:
Well, wait a minute.

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Did they raise qualified immunity or not?

[00:04:58] Speaker 04:
I'm a little confused.

[00:04:59] Speaker 01:
They did raise the defense of qualified immunity in their answer, and they did argue

[00:05:05] Speaker 01:
They couched their arguments about the lack of constitutional violations in terms of qualified immunity, but they never made any arguments that go to the second prong of qualified immunity.

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So it is probably right to say they did raise the defense.

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The second prong being?

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The clearly established law.

[00:05:19] Speaker 04:
Right.

[00:05:20] Speaker 04:
Well, I'll ask them.

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So is it your position the whole qualified immunity issue was waived?

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It was not before us?

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I would say that the defendants have waived any argument that any of the legal standards that we're applying here were not clearly established.

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But even if the court does choose to reach that question... How can you have qualified immunity if it's not clearly established?

[00:05:44] Speaker 04:
I don't understand.

[00:05:46] Speaker 01:
Well, because qualified immunity has two prongs, the first of course being, was there a constitutional violation in the first place?

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And the second, which is an entirely separate question, what was the state of the law at the time?

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The defendants made no arguments in the district court as to the second question.

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And so I would suggest that they have waived those arguments here.

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But even if the court is inclined to reach that question, I would submit that all of the legal standards are clearly established, and I think that is why the defendants did concede that below.

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Every circuit that has considered the question has concluded that shooting a pet dog when the owner is present and obviously desires to retain custody of the animal

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is a Fourth Amendment seizure and that therefore a police officer cannot do so unless the vet poses an imminent danger and the use of force is unavoidable.

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This court has also made clear since 1982 that searches cannot be more destructive, more invasive than necessary.

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So I do think that all of the legal standards are clearly established in the court.

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On this question that you'd like us to give advice to the district court on about passing the door or opening the door, that's not quite in the same league as the other two, is it?

[00:06:50] Speaker 01:
I don't think it is, but I do think that whether that is viewed as part of the seizure of the dog or simply a more invasive aspect of the search, the cases do make clear that that is... Cases in other circuits on specific facts, but no case in this circuit.

[00:07:08] Speaker 01:
Yes, that is correct.

[00:07:09] Speaker 02:
And the district court didn't rule on this question about opening the door, right?

[00:07:13] Speaker 02:
That is also correct.

[00:07:13] Speaker 02:
So this would be like a little advice for the district court you'd like us to give, or...?

[00:07:18] Speaker 02:
Well, I understand why if we were going to rule against you on that ground, we need to decide that question.

[00:07:24] Speaker 02:
I don't understand why we would decide that question.

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Now, the district court hasn't said whether there's a genuine issue of material effect on that or not.

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I will certainly it would be open to this court to remand for the district court to consider that issue, but I also don't think that that's necessary because the record is fully developed here.

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And so I don't think there's anything stopping this court from reaching that question.

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Do you think they've waived below their ability to argue about clearly established law?

[00:07:50] Speaker 01:
I do think so, yes.

[00:07:51] Speaker 02:
Well, they moved on certain grounds for summary judgment.

[00:07:53] Speaker 02:
Does that preclude them from moving on other grounds for summary judgment if they lost their first motion for summary judgment?

[00:08:00] Speaker 01:
Not necessarily, no.

[00:08:03] Speaker 04:
And when would it be waived?

[00:08:06] Speaker 01:
No, it may well be open to them to argue it again on remand.

[00:08:08] Speaker 01:
But as I said, I do think that that issue is waived here.

[00:08:10] Speaker 03:
The argument is it's waived here.

[00:08:11] Speaker 01:
Yes, that's correct.

[00:08:12] Speaker 03:
Doesn't mean they can't raise it again in the district court.

[00:08:15] Speaker 02:
Yes, that's right.

[00:08:17] Speaker 02:
What's the best on the question of her seeing Wrinkles lying down and being shot while he was lying down?

[00:08:25] Speaker 02:
Yes.

[00:08:25] Speaker 02:
What's the best page of the joint appendix that you can give me on this?

[00:08:32] Speaker 01:
If you turn to page 222 of the appendix, you will find Mrs. Robinson's testimony on this point.

[00:08:40] Speaker 01:
And I believe, actually, this discussion begins on page 221.

[00:08:42] Speaker 02:
And what sentence are you talking about?

[00:08:48] Speaker 02:
Which sentence are you talking about?

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So if you look at the very end of page 222, we have the beginning of Mrs. Robinson's description here.

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She says.

[00:08:56] Speaker 01:
Is it the end of 222?

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221, pardon me.

[00:09:00] Speaker 01:
OK.

[00:09:00] Speaker 01:
Mrs. Robinson says, referring to Wrinkles, she stood up.

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Excuse me, let me correct myself.

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When she shot the first time, Wrinkles got up.

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And when Wrinkles got up to come forward to her, then she shot again.

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And so then the defendant's counsel asks, is it your testimony that Wrinkles was on the floor, lying on the floor?

[00:09:16] Speaker 01:
The answer to that question is yes.

[00:09:18] Speaker 03:
Well, why don't you go on then.

[00:09:20] Speaker 03:
What's your response then to the district's argument that when, yeah, the plaintiff says yes, and then the lawyer says, well, how do you know that?

[00:09:35] Speaker 03:
And then she doesn't answer the question.

[00:09:37] Speaker 01:
Admittedly, her answer to the how do you know that question is not directly responsive.

[00:09:42] Speaker 01:
But I would submit that it is not nearly sufficient to permit the conclusion that no reasonable juror could find that she actually did see what happened.

[00:09:51] Speaker 01:
Why?

[00:09:52] Speaker 01:
Well, cases applying Federal Rule of Evidence 602, which is the personal knowledge requirement, are quite clear that evidence should not be excluded on this ground unless no reasonable juror could find that the witness observed the events that she was testifying to.

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And here, I think if you read the entirety of Mrs. Robinson's testimony, it is quite clear that she was testifying as to events that she actually witnessed.

[00:10:14] Speaker 01:
The defendant's arguments as to why she could not see rely on their description of where she was in the house, but she testified fairly clearly that she was essentially still in the entryway immediately adjacent to the bathroom, and thus did have the vantage point from which she could see these events.

[00:10:30] Speaker 02:
There's no affidavit from Mrs. Robinson or anything about this.

[00:10:33] Speaker 01:
There is not.

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And the reason for that is that the defendants did not make this argument in their motion for summary judgment.

[00:10:38] Speaker 01:
In fact, they did not make any arguments about a lack of personal knowledge in the district court.

[00:10:42] Speaker 01:
They did, in their summary judgment reply, say that she did not admit to seeing the bite.

[00:10:49] Speaker 02:
But even on the point that Wrinkles was lying on the ground, there's no affidavit about that.

[00:10:53] Speaker 02:
Even if this question hadn't been asked,

[00:10:56] Speaker 02:
Where would the evidence have come in that Wrinkles was on the ground when shot?

[00:11:02] Speaker 01:
In that situation, it may well have been appropriate to put in an affidavit there.

[00:11:06] Speaker 01:
But as it was, the defendants did not challenge the sufficiency of this testimony to establish for personal knowledge.

[00:11:12] Speaker 01:
They didn't do so squarely until they reached this court.

[00:11:14] Speaker 01:
And they really didn't do so at all until their summary judgment replying.

[00:11:17] Speaker 02:
Does that matter since we're reviewing this de novo?

[00:11:20] Speaker 01:
Well, I think in terms of considering the absence of, say, an affidavit that would further elaborate on Mrs. Robinson's testimony, it does matter.

[00:11:28] Speaker 02:
Why isn't that your obligation to put in the affidavit?

[00:11:32] Speaker 01:
Certainly, as the plaintiff, Mrs. Robinson bears the ultimate burden of proof.

[00:11:36] Speaker 01:
And so of course, she does have to come forward with sufficient evidence.

[00:11:38] Speaker 01:
But I do feel that it's not appropriate to penalize her for failing to anticipate the district's argument on appeal.

[00:11:45] Speaker 02:
Well, I don't understand that.

[00:11:48] Speaker 02:
The whole point of your case is that the dog was shot while he was lying on the ground, right?

[00:11:53] Speaker 00:
That is certainly our central claim.

[00:11:55] Speaker 02:
Can we possibly win the claim against Buzat if the dog were charging Buzat, right?

[00:12:02] Speaker 02:
Well, I think we could on the other ground.

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is not your strongest ground, at least it's not your strongest ground on qualified immunity.

[00:12:12] Speaker 02:
But I'm puzzled at the litigation strategy of not putting in any evidence on the point upon which you have the burden of proof.

[00:12:22] Speaker 01:
Well, I do think we have put in evidence on that point.

[00:12:24] Speaker 01:
I think when Mrs. Robinson's testimony is read in its entirety, it does suffice to permit a reasonable juror to find that she actually did see the events that she was describing.

[00:12:34] Speaker 01:
She testified a number of times to the sequence of events leading up to the first shot, both in the pages that we've just looked at and in the surrounding pages.

[00:12:43] Speaker 01:
She describes quite clearly Officer Pizat

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entering the home with her gun drawn, turning to her left to face the bathroom door, opening the bathroom door.

[00:12:51] Speaker 01:
Mrs. Robinson, at that point, saw wrinkles lying down.

[00:12:54] Speaker 02:
Officer Buzotte fired, and the wrinkles... Where was the part where she saw wrinkles falling down?

[00:12:59] Speaker 02:
That's only...

[00:13:00] Speaker 02:
with the second question by the defense counsel.

[00:13:03] Speaker 01:
So she says that Wrinkles, quote, got up, end quote, I believe three or four times in this exchange.

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And I think it's quite clear, including this answer to this question we've been discussing, that when she says got up, she means that Wrinkles was lying down.

[00:13:18] Speaker 01:
She also testified that Wrinkles did not start to come out of the bathroom toward Officer Pizot until after the first shot.

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And Officer Pizot herself testified that she was not bitten in the bathroom, she was bitten when Wrinkles was coming out.

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So even if the court were to conclude that Mrs. Robinson could not see whether Wrinkles was lying down, I think we still have a genuine issue of material fact on this question.

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Because Mrs. Robinson did see enough of the sequence of events to see that the first shot came before Wrinkles came out of the bathroom towards officer.

[00:13:49] Speaker 02:
Likewise, point me to the best language with respect to McLeod.

[00:13:55] Speaker 02:
Is that on 221 also?

[00:13:59] Speaker 02:
This is the point that Wrinkles was.

[00:14:04] Speaker 02:
Had collapsed had collapsed at her feet.

[00:14:07] Speaker 02:
Is that is that a 221?

[00:14:11] Speaker 00:
I believe that it is, yes.

[00:14:19] Speaker 01:
And there's a similar description on 222 as well.

[00:14:21] Speaker 01:
The bottom of the page going up to the top.

[00:14:23] Speaker 01:
She fell, she fell right at my feet.

[00:14:26] Speaker 01:
I had gotten myself back towards the side of the hallway.

[00:14:29] Speaker 01:
And then they started shooting from the step and then wrinkles ran towards the step and tried to go up the step.

[00:14:35] Speaker 02:
One last question, I'm sorry.

[00:14:37] Speaker 02:
I'm going to take up everybody else's time.

[00:14:38] Speaker 02:
Who were the defendants in the property aspect of the claim?

[00:14:42] Speaker 01:
The defendants on that claim are the individual officers.

[00:14:45] Speaker 01:
Which individual officers?

[00:14:46] Speaker 01:
The officers who participated in the search.

[00:14:49] Speaker 01:
Which individual officers?

[00:14:50] Speaker 02:
Sergeant Botler and... I take it Pizatz no longer... That is the ammonia she wasn't there.

[00:14:58] Speaker 02:
That is correct.

[00:14:59] Speaker 02:
Okay, so she hasn't been officially dismissed on that claim?

[00:15:03] Speaker 01:
I don't believe she is a defendant on that claim.

[00:15:06] Speaker 02:
Weren't they all originally defendants?

[00:15:08] Speaker 01:
I'm sorry, let me correct myself.

[00:15:09] Speaker 01:
She is a defendant on that claim insofar as by shooting wrinkles, she caused damage to the property.

[00:15:14] Speaker 01:
But we do not allege that she separately caused any additional damage.

[00:15:17] Speaker 01:
And the others who did?

[00:15:20] Speaker 01:
Botler and?

[00:15:21] Speaker 01:
Botler, I believe, Ledesma.

[00:15:25] Speaker 02:
I thought Ledesma had been dismissed, is that wrong?

[00:15:29] Speaker 02:
Or not on that claim, but on some of the other claims.

[00:15:32] Speaker 02:
There's a statement in the brief that says that some of them were dismissed early on.

[00:15:37] Speaker 01:
I'm sorry, yes, you're correct.

[00:15:38] Speaker 01:
It was Butler, Hopkins, I think Baker was the other officer who participated.

[00:15:45] Speaker 02:
On page 16, it says, of your brief, it says, after discovery, the claims against Ledesma, Johnston, Selby, and Hopkins were voluntarily dismissed.

[00:15:52] Speaker 02:
Does that mean on all the counts?

[00:15:54] Speaker 02:
Yes, it does.

[00:15:55] Speaker 02:
OK, so that leaves Buzot, McCloud,

[00:16:01] Speaker 02:
Yes, that's correct.

[00:16:07] Speaker 02:
And did she see any of them do anything?

[00:16:11] Speaker 01:
She did have admittedly some difficulty identifying which officers were doing what because they had shepherded her out of the house.

[00:16:20] Speaker 02:
For whatever reason, did she see any of those officers do anything?

[00:16:24] Speaker 01:
I don't believe that she was able to testify as to any of the individual officers' identities causing any particular aspect of the damage.

[00:16:33] Speaker 02:
So isn't the burden – and the burden of proof is certainly on plaintiffs to show that in this case we're not talking about institutional guilt, we're talking about individual guilt, right?

[00:16:41] Speaker 02:
Certainly, yes.

[00:16:42] Speaker 02:
So the burden is to show that one of those officers or all of them did something unreasonable, right?

[00:16:48] Speaker 01:
I do think that at the very least she has carried that burden against Sergeant Botler because he both... I understand the argument against Botler, the other.

[00:16:55] Speaker 02:
That's a supervision argument.

[00:16:57] Speaker 01:
Yes, because he testified that he both supervised and participated in the searches.

[00:17:01] Speaker 01:
And what about the others?

[00:17:01] Speaker 01:
The others, as I said, she was not able to identify them based on her own observations.

[00:17:06] Speaker 01:
But I do think that their admissions that they participated in the search are sufficient at this point.

[00:17:10] Speaker 02:
They didn't admit that they did any particular thing.

[00:17:13] Speaker 02:
Not everything in the search was unreasonable, was it?

[00:17:16] Speaker 01:
No, we're certainly not suggesting that absolutely.

[00:17:17] Speaker 02:
So don't you have to show that any individual officer did a particular officer did a particular unreasonable thing?

[00:17:25] Speaker 01:
I think that at this point, their testimony as to their participation in the search and what exactly they did in combination with the resulting damage is sufficient to create an issue of material fact on this point.

[00:17:37] Speaker 02:
Not really following how that could be.

[00:17:39] Speaker 02:
I mean, this is individual liability, not group liability.

[00:17:42] Speaker 02:
Yes.

[00:17:43] Speaker 02:
She was outside.

[00:17:43] Speaker 02:
At the most, she said she saw things flying, but she didn't see...

[00:17:49] Speaker 02:
who started the flight.

[00:17:50] Speaker 02:
I don't understand how that could be sufficient for any officer.

[00:17:55] Speaker 02:
I'll keep Butler to the side for the moment.

[00:17:57] Speaker 02:
But for any particular officer, I mean, if one officer did all the bad things, another person can't be liable for it.

[00:18:04] Speaker 02:
And if you don't know which officer did which, then you don't know.

[00:18:08] Speaker 02:
And you had an opportunity for discovery.

[00:18:11] Speaker 02:
You took the depositions.

[00:18:13] Speaker 02:
You didn't ask questions like that.

[00:18:15] Speaker 01:
Well, we did ask some questions along those lines, and the defendants perhaps unsurprisingly denied having... Any questions that you asked attempting to identify which officer had done what?

[00:18:27] Speaker 01:
I believe each of the officers who participated in the search for asked essentially whether they had damaged anything.

[00:18:32] Speaker 01:
And all of them said no, and I think there is a dispute of material type on that point, because plainly there was fairly extensive property damage.

[00:18:40] Speaker 04:
That's an interesting question.

[00:18:43] Speaker 02:
Okay, further questions?

[00:18:46] Speaker 02:
Thank you.

[00:19:10] Speaker 05:
May it please the court.

[00:19:11] Speaker 05:
John Mordorana on behalf of the District of Columbia.

[00:19:14] Speaker 04:
Taking that last question.

[00:19:16] Speaker 05:
Yes, sir.

[00:19:18] Speaker 04:
Six officers executed in a search warrant.

[00:19:22] Speaker 04:
They went into an apartment with an elderly woman.

[00:19:26] Speaker 04:
And there's an enormous destruction of the apartment.

[00:19:34] Speaker 04:
And she is unable to identify which

[00:19:41] Speaker 04:
of the officers did any damage.

[00:19:45] Speaker 04:
But she can testify that officers did damage.

[00:19:51] Speaker 04:
Does the burden shift at that point or not?

[00:19:56] Speaker 04:
She has no, she's not very good, she's also not very good.

[00:20:11] Speaker 04:
which officer did the damage?

[00:20:13] Speaker 05:
I think the plaintiff, yes Judge Silverman, I understand your question.

[00:20:17] Speaker 05:
The plaintiff bears the burden in sense of risk of non-persuasion in this case where she cannot identify particular officers that have caused the damage.

[00:20:28] Speaker 04:
Did she, did she, did she alleged she saw the damage?

[00:20:32] Speaker 05:
She alleged that she saw some things happening.

[00:20:35] Speaker 05:
She said that she saw an officer climbing on her dryer.

[00:20:40] Speaker 05:
But she can't identify them.

[00:20:43] Speaker 05:
No, sir.

[00:20:45] Speaker 02:
But that officer, the one who climbed on the dryer, isn't there agreement as to which one climbed on the dryer?

[00:20:49] Speaker 02:
She can't shut... Not from her, from the officer.

[00:20:52] Speaker 02:
Didn't the officer testify that he... Maybe I'm imagining.

[00:20:56] Speaker 02:
I thought the officer testified, stepped on the dryer in order to avoid the dog.

[00:21:00] Speaker 02:
Yes.

[00:21:00] Speaker 02:
So we know which officer stepped on the dryer.

[00:21:02] Speaker 05:
We don't know which officer stepped on the dryer.

[00:21:05] Speaker 05:
We don't have a specific identity for him.

[00:21:08] Speaker 05:
But what we do know is that prior to those officers conducting the search, there was a crime scene team

[00:21:13] Speaker 02:
that went in there to document extensive... Before the officers, before the defendants went in, the crime scene search team came in?

[00:21:22] Speaker 02:
Yes, sir.

[00:21:24] Speaker 02:
So there were a whole bunch of other officers in there before the searching officers?

[00:21:28] Speaker 05:
Yes, Judge, Chief Judge Garland, there were... Judge is good enough.

[00:21:34] Speaker 05:
So there were crime scene officers that came in to secure the scene and document where the bullets were and to collect the bullets and the casings.

[00:21:41] Speaker 05:
And that was plaintiff's own submission.

[00:21:44] Speaker 05:
Plaintiff's own submission showed.

[00:21:46] Speaker 02:
Right.

[00:21:46] Speaker 02:
I knew there were.

[00:21:47] Speaker 02:
I didn't realize the order.

[00:21:48] Speaker 02:
I didn't realize they came in first.

[00:21:51] Speaker 03:
OK.

[00:21:51] Speaker 03:
Go ahead.

[00:21:51] Speaker 03:
So all the alleged damage occurred after that?

[00:21:56] Speaker 03:
It occurred.

[00:21:57] Speaker 03:
I missed that, too.

[00:21:58] Speaker 03:
I didn't understand that.

[00:22:00] Speaker 02:
Judge Table, I think the... I take it your point is that the damage could have been done by the crime scene search officers.

[00:22:12] Speaker 05:
Yes, Judge Garland.

[00:22:13] Speaker 05:
The crime scene... This is Exhibit 12 in the Joint Appendix.

[00:22:17] Speaker 05:
It starts on Joint Appendix 322.

[00:22:19] Speaker 04:
You do concede the damage was done?

[00:22:23] Speaker 05:
Yes, we concede that it... We concede the damage was done, but it was reasoned.

[00:22:27] Speaker 04:
So your position is the damage was done by the plaintiffs

[00:22:32] Speaker 04:
officers was the damage.

[00:22:35] Speaker 05:
That's part of our position.

[00:22:37] Speaker 05:
Our first position is that the damage was reasonably necessary to... No, I understand that.

[00:22:42] Speaker 04:
But assuming that's not so, assuming that we conclude the damage was necessary, then we're in a situation, let's assume, arguing that gross damage

[00:23:04] Speaker 04:
which one did it.

[00:23:07] Speaker 04:
You say the burden is still on her to identify which officers did it.

[00:23:12] Speaker 05:
To put forth some evidence to show which officers the damage is traceable to.

[00:23:17] Speaker 02:
I think it's not just the damage.

[00:23:20] Speaker 02:
has to be the unreasonable damage.

[00:23:22] Speaker 02:
Yes.

[00:23:23] Speaker 02:
No, but some unreasonable damage and some not unreasonable damage, and you have to know which officer did the unreasonable damage.

[00:23:29] Speaker 02:
That's correct, Chief Judge Garland.

[00:23:31] Speaker 05:
This court can affirm the district court's grant of summary judgment to the district relating to the shooting of plaintiff's dog by Officer Pizag for two reasons.

[00:23:40] Speaker 02:
And just pause back as long as we're before we get back to that.

[00:23:42] Speaker 02:
What about the supervising officer?

[00:23:44] Speaker 02:
What about that?

[00:23:46] Speaker 02:
Their argument is that even if you don't know who did individual damages, there was a supervising officer.

[00:23:51] Speaker 02:
And if you take Judge Silverman's hypothetical that there was unreasonable damage, isn't that ultimately the responsibility of the supervising officer?

[00:24:02] Speaker 05:
If the damage was unreasonable, I'm not sure if there's respondeat liability in this particular circumstance.

[00:24:11] Speaker 04:
That's not responding.

[00:24:12] Speaker 04:
Why not?

[00:24:13] Speaker 04:
That's a different.

[00:24:14] Speaker 04:
They're entirely.

[00:24:16] Speaker 05:
OK.

[00:24:17] Speaker 05:
I would say that he would probably be.

[00:24:22] Speaker 05:
Anyway, he's in a different category, obviously, from the others.

[00:24:25] Speaker 05:
He is.

[00:24:25] Speaker 05:
He is.

[00:24:26] Speaker 05:
He is.

[00:24:28] Speaker 05:
And just going back to the first point was that the plaintiff really didn't.

[00:24:32] Speaker 05:
And Judge Taddle, you picked up on this with your discussion with Mr. Los Eaton.

[00:24:40] Speaker 05:
The plaintiff really didn't see what was going on in the bathroom sufficient to show that the dog was shot without provocation.

[00:24:50] Speaker 05:
Of course, the court knows this case turns on whether the dog was shot.

[00:24:54] Speaker 03:
No, no, wait, wait.

[00:24:54] Speaker 03:
Can we go back?

[00:24:56] Speaker 03:
Yes, Your Honor.

[00:24:57] Speaker 03:
I mean, you just stated a conclusion.

[00:24:59] Speaker 03:
The question is, is there sufficient evidence from her that she did see it?

[00:25:07] Speaker 03:
And you do rely on very heavily on her answer to the question.

[00:25:13] Speaker 03:
When she was asked, is it your testimony that Rickles was on the floor, lying on the floor, she just said, she said yes.

[00:25:24] Speaker 03:
And then when he said, how did you know, she gave this answer that you say is not responsive, right?

[00:25:31] Speaker 05:
That's correct.

[00:25:32] Speaker 03:
OK.

[00:25:33] Speaker 03:
So I guess I have two questions about that.

[00:25:35] Speaker 03:
One is, what's your response to counsel's argument that even if this is nonresponsive, you still have to look at the whole record.

[00:25:45] Speaker 03:
And she did say several times that the dog was lying down.

[00:25:48] Speaker 04:
She said the dog got up.

[00:25:49] Speaker 03:
Yeah, she said the dog got up.

[00:25:53] Speaker 03:
Even if this is not directly responsive to the question.

[00:25:57] Speaker 03:
And then I have a second question about it.

[00:26:00] Speaker 03:
Why isn't he right that we do look at all the evidence?

[00:26:03] Speaker 03:
And she said, at least twice the dog got up.

[00:26:07] Speaker 05:
Yes.

[00:26:07] Speaker 05:
Yes, Judge.

[00:26:09] Speaker 05:
Judge Taylor, you always look at all the evidence.

[00:26:11] Speaker 05:
But when you go through from about- And we have to give all inferences in her favor.

[00:26:18] Speaker 05:
Yes, you do have to give all inferences.

[00:26:20] Speaker 03:
And her uncorroborated testimony is enough.

[00:26:23] Speaker 03:
The district judge was wrong about that, right?

[00:26:25] Speaker 05:
We understand the court's concern with with Judge Leon's finding.

[00:26:31] Speaker 04:
More specific question.

[00:26:32] Speaker 04:
Yeah.

[00:26:38] Speaker 04:
I mean, that's just a case we all had in law school.

[00:26:41] Speaker 04:
You know, the homeless person who's somewhat of an alcoholic is testifying against 12 bishops.

[00:26:49] Speaker 04:
You had that in law school, didn't you?

[00:26:50] Speaker 05:
Yes, Your Honor, I did.

[00:26:51] Speaker 04:
It has to go to the jury.

[00:26:52] Speaker 02:
Exactly that case you had in law school.

[00:26:55] Speaker 03:
We didn't have that in Chicago.

[00:26:56] Speaker 03:
Apparently, I went to a different law school.

[00:26:58] Speaker 03:
Yeah, we didn't have that in Chicago.

[00:27:00] Speaker 03:
Maybe that's a Harvard hypo.

[00:27:02] Speaker 04:
You're right.

[00:27:02] Speaker 04:
That's a Harvard one.

[00:27:03] Speaker 04:
It goes before Chicago, right?

[00:27:06] Speaker 05:
Judge, we certainly understand the court's concern.

[00:27:09] Speaker 02:
When you say understand the concern, we have a different question, really.

[00:27:13] Speaker 02:
Let's be as direct as we can.

[00:27:15] Speaker 02:
Imagine we believe that she actually saw, well, if she testified, I saw the officer shoot the dog while it was on the ground.

[00:27:27] Speaker 02:
And if eight officers testified, she didn't shoot the dog until it charged her.

[00:27:33] Speaker 02:
This would go to the jury, wouldn't it?

[00:27:34] Speaker 06:
It would.

[00:27:35] Speaker 06:
It would.

[00:27:36] Speaker 06:
But the testimony.

[00:27:37] Speaker 04:
So the statement, uncooperative, is error, isn't it?

[00:27:41] Speaker 04:
That statement alone, that the district judge said her testimony is uncooperative, that's irrelevant, isn't it?

[00:27:49] Speaker 06:
It is.

[00:27:50] Speaker 04:
OK.

[00:27:51] Speaker 04:
So you admit error on that.

[00:27:53] Speaker 05:
It was so, Your Honor, the evidence was so speculative on her part that no reasonable jury could return.

[00:28:01] Speaker 04:
Why was it speculative?

[00:28:02] Speaker 04:
She testified.

[00:28:04] Speaker 04:
I'm sorry.

[00:28:05] Speaker 04:
You're not answering my question, are you?

[00:28:08] Speaker 04:
Right.

[00:28:08] Speaker 04:
I mean, wasn't that error, whether or not you can prevail on a different ground, wasn't that error to say,

[00:28:18] Speaker 04:
cooperate?

[00:28:19] Speaker 05:
If she saw if she saw the events as they as she described them, then yes, it would be her.

[00:28:26] Speaker 05:
Yes, but but she's not see those events.

[00:28:29] Speaker 03:
So now let's go on to my question.

[00:28:31] Speaker 03:
You say her uh, answer to the question.

[00:28:36] Speaker 03:
How did you?

[00:28:37] Speaker 03:
How do you know undermines the rest of her testimony?

[00:28:41] Speaker 03:
Right?

[00:28:43] Speaker 05:
Yes.

[00:28:44] Speaker 05:
Yes, Judge.

[00:28:48] Speaker 03:
I'm not quite sure I understand why that is.

[00:28:51] Speaker 03:
I mean, if she had said, I didn't see it, then you would have conflicting testimony by her.

[00:28:59] Speaker 03:
But when you have her saying several times, the dog got up, and that's admissible deposition testimony, even though it's not corroborated.

[00:29:13] Speaker 03:
Why does a statement, how do you know that?

[00:29:17] Speaker 03:
And her, she didn't say, I don't.

[00:29:20] Speaker 03:
She just gave an answer that you say is non-responsive.

[00:29:23] Speaker 03:
Why would that undermine that?

[00:29:25] Speaker 03:
What's the theory underlying that?

[00:29:28] Speaker 03:
I don't understand that.

[00:29:29] Speaker 05:
Going back to what you said before about reading the record as a whole, and she had talked about what her story was, and the council broke it down piece by piece.

[00:29:40] Speaker 05:
probing the basis for her knowledge that the dog was lying on the floor and shot without provocation.

[00:29:46] Speaker 05:
And she was asked, and I'm specifically pointing to JA 102, which is, he asks her, how do you know that?

[00:29:56] Speaker 05:
And her answer is, at best, inferential.

[00:29:59] Speaker 05:
And it's based on the conduct of the officer outside the bathroom, not what the dog was doing inside the bathroom.

[00:30:05] Speaker 05:
And then later, she doesn't she see and just to correct, she was bitten in the doorway.

[00:30:13] Speaker 05:
That was officer.

[00:30:14] Speaker 03:
Let's go back to the.

[00:30:16] Speaker 03:
So I have two questions about what you just said.

[00:30:18] Speaker 03:
Number one is, you know, the council didn't follow it up by saying, wait, Mrs. Robinson, that's not what I asked you.

[00:30:28] Speaker 03:
I asked you not about the officers, but about what you saw in the bathroom.

[00:30:33] Speaker 03:
They didn't do that.

[00:30:36] Speaker 03:
And the second point is that you agree we have to view this evidence in the light most favorable to Mrs. Robinson, right?

[00:30:43] Speaker 03:
I do.

[00:30:45] Speaker 03:
Yeah.

[00:30:45] Speaker 03:
So you know, this response that she gives, she says,

[00:30:55] Speaker 03:
What she's telling him, I mean it's not, I agree with you, it's somewhat questionable, but she could have been, when she was asked how she knew, she's telling why she was looking over there.

[00:31:07] Speaker 03:
She's answering sort of a similar way.

[00:31:10] Speaker 03:
She said, wait, I was looking over there because this officer, when she first opened the door, the gun in her hand, I got scared because I thought she was going to shoot me.

[00:31:20] Speaker 03:
That's why she was looking.

[00:31:22] Speaker 03:
She's saying to him, I know what happened in the bathroom because I was looking over there.

[00:31:29] Speaker 03:
Why was I looking over there?

[00:31:30] Speaker 03:
Because I thought the officer was going to shoot me.

[00:31:34] Speaker 03:
So if we have to view this in the light most favorable to her, why isn't that a perfectly maybe not the most responsive answer, but one that at least made sense from her perspective?

[00:31:44] Speaker 05:
Judge Cato, it's not responsive.

[00:31:46] Speaker 05:
It's her burden to show that she had personal knowledge for this.

[00:31:51] Speaker 03:
She's already testified several times.

[00:31:56] Speaker 03:
all.

[00:31:58] Speaker 05:
Yeah, it is not.

[00:31:58] Speaker 05:
And I say that it's not a fair inference based on this answer to the question where she's specifically asked by the district council.

[00:32:08] Speaker 05:
How do you know that that dog was lying on the floor?

[00:32:10] Speaker 05:
And she says because of the position of officer bizarre and her gun.

[00:32:15] Speaker 05:
and that is not responsive to the question.

[00:32:17] Speaker 05:
It shows that she lacks personal knowledge, especially in light of the fact that she then later, seconds later, doesn't see the dog biting Officer Pazot in the doorway to that bathroom.

[00:32:28] Speaker 04:
Let me go back to this question, which puzzles me.

[00:32:32] Speaker 04:
Suppose a plaintiff sues

[00:32:40] Speaker 04:
on the street and four of those officers beat him terribly.

[00:32:48] Speaker 04:
Do what?

[00:32:49] Speaker 04:
Beat him.

[00:32:50] Speaker 04:
Oh.

[00:32:50] Speaker 04:
Beat him terribly.

[00:32:54] Speaker 04:
He sues all twelve.

[00:33:12] Speaker 05:
I don't think so, Judge.

[00:33:13] Speaker 04:
I suppose they're wearing masks.

[00:33:22] Speaker 05:
I don't think the burden shifts under those circumstances.

[00:33:26] Speaker 04:
That troubles me very much.

[00:33:28] Speaker 05:
Okay.

[00:33:29] Speaker 04:
D, D. It's very hard.

[00:33:33] Speaker 04:
How old was this woman?

[00:33:35] Speaker 05:
I believe she was 69.

[00:33:39] Speaker 04:
A little hard for anybody, but perhaps an old woman, to identify which officer does

[00:33:55] Speaker 04:
on her.

[00:33:56] Speaker 04:
I'm not sure the answer to that.

[00:33:57] Speaker 05:
Judge, I think she's she had her own exhibit with the crime scene and could have got the hypothetical that you gave me with the masks.

[00:34:09] Speaker 05:
Um, there would be no other way for her to determine, you know, no other way for that person to determine who did the beating here.

[00:34:19] Speaker 05:
The plaintiff's own submission, you know, gave the crime scene, gave the crime scene diagram

[00:34:25] Speaker 05:
and gave some people that were doing that that they could certainly unreasonable investigation, found out who those crime scene officers were and deposed them.

[00:34:34] Speaker 05:
But they did not.

[00:34:35] Speaker 05:
They just submitted the crime scene diagram.

[00:34:38] Speaker 04:
So it was their burden to oppose the officers.

[00:34:41] Speaker 05:
Well, there was a burden to investigate further to determine which officers were the officers all denied.

[00:34:48] Speaker 04:
So what would that have done?

[00:34:52] Speaker 05:
Well, if the officers had gone to the crime scene and had documented what they did.

[00:34:56] Speaker 02:
Is there, is there not, doesn't a seizing officer have to write on the report that in order to establish chain of custody that they see, was anything seized by the way?

[00:35:08] Speaker 05:
I thought I saw some marijuana bags or something.

[00:35:10] Speaker 05:
There was a, with white powder residue.

[00:35:13] Speaker 02:
So aren't there names of the officers who were the seizing officers somewhere?

[00:35:19] Speaker 02:
I'm sorry, Judge.

[00:35:20] Speaker 02:
So aren't the names of the seizing, normally on, I can't remember what the number of the police form, PD something, you have to state the name of the seizing officer so that later, chain of custody can be established, right?

[00:35:36] Speaker 05:
That's correct, Judge.

[00:35:37] Speaker 02:
So are the names of the officers on a form like that?

[00:35:39] Speaker 05:
Yes.

[00:35:40] Speaker 05:
There's Officer Baker is on that form.

[00:35:43] Speaker 02:
Do we have that form?

[00:35:44] Speaker 05:
Well, that's the search warrant return, Judge.

[00:35:47] Speaker 02:
What page is that?

[00:35:48] Speaker 05:
The search warrant return

[00:35:49] Speaker 05:
um, is J 142.

[00:35:56] Speaker 05:
Um, but the crime scene, uh, evidence report judge that 3 23 and it talks about, um, you know, who the officer was that was preparing the report and who the reviewing officer

[00:36:16] Speaker 05:
or there's a signature for reviewing officer.

[00:36:19] Speaker 05:
So they certainly could have deposed Savion Winfield to find out what was going on at the crime scene, but they did not.

[00:36:29] Speaker 05:
If I could just address.

[00:36:31] Speaker 04:
Can I go on to the qualified immunity question?

[00:36:33] Speaker 04:
Yes, sure.

[00:36:33] Speaker 04:
Did you raise that below?

[00:36:37] Speaker 05:
We couch what specifically we did because our defense

[00:36:46] Speaker 05:
on the merits is the same defense as on the qualified immunity analysis, and the district court just simply passed on that, then they addressed the merits.

[00:36:55] Speaker 03:
You mean the first element of qualified immunity.

[00:36:58] Speaker 03:
Yes, Your Honor.

[00:36:59] Speaker 03:
But you didn't ever address the second.

[00:37:02] Speaker 05:
Never addressed the second.

[00:37:03] Speaker 05:
The district court passed on that issue, Your Honor.

[00:37:06] Speaker 05:
But did you argue it?

[00:37:08] Speaker 05:
We did not.

[00:37:09] Speaker 03:
That's what I thought.

[00:37:09] Speaker 05:
So is it waived?

[00:37:12] Speaker 05:
Yeah.

[00:37:12] Speaker 05:
For our purposes.

[00:37:14] Speaker 03:
only ours.

[00:37:15] Speaker 05:
I don't believe it's waived, Judge, because I think you can affirm on any basis that's clear enough.

[00:37:20] Speaker 04:
Well, we can affirm on any basis argued below whether or not the district judge relies on it.

[00:37:26] Speaker 04:
But I don't know if we can affirm on a ground not even presented below.

[00:37:31] Speaker 05:
Yes, Judge.

[00:37:32] Speaker 04:
What?

[00:37:33] Speaker 04:
We can't affirm on the ground, not even presented below?

[00:37:35] Speaker 04:
No, I don't think you can.

[00:37:36] Speaker 04:
No, we can't.

[00:37:37] Speaker 05:
I don't think you can do that.

[00:37:38] Speaker 05:
So it's really not in front of us at all, is it?

[00:37:40] Speaker 05:
It really isn't.

[00:37:41] Speaker 05:
OK, thank you.

[00:37:43] Speaker 05:
And just to briefly address the opening of the door, that action was not unreasonable under the circumstances.

[00:37:54] Speaker 05:
in this fast-moving, dangerous situation.

[00:37:57] Speaker 05:
And if I may address Officer McClode.

[00:38:01] Speaker 03:
Well, before you go on, the district court didn't address that either, right?

[00:38:05] Speaker 05:
No, the district court did not.

[00:38:08] Speaker 03:
Right.

[00:38:10] Speaker 03:
If we would agree with plaintiff on the first question, that is, that there is a material fact, we don't have to address that question, right?

[00:38:17] Speaker 05:
No, you do not have to address that question.

[00:38:20] Speaker 05:
And to just address Officer McClode, because there is a charge on him, we recognize that

[00:38:29] Speaker 05:
Plaintiff Robinson's testimony that the dog was laying momentarily, laying down on her feet when she was shot by Officer McClough.

[00:38:38] Speaker 05:
This was a very fast, dangerous, moving situation where Officer McClough made a split-second decision to shoot a dog that had just seconds before violently bitten another officer in the group.

[00:38:52] Speaker 05:
and to hold him liable on this ground would, you know, undermine the standard and the deference that's given by... Does it even make any difference to your argument?

[00:39:02] Speaker 03:
Suppose the evidence was clear the dog was lying down next to her.

[00:39:05] Speaker 03:
What difference would that make?

[00:39:06] Speaker 03:
I mean, the dog had bitten the police officer, right?

[00:39:09] Speaker 05:
Right.

[00:39:09] Speaker 03:
That's enough.

[00:39:11] Speaker 03:
for a reasonable officer to shoot the dog, right?

[00:39:13] Speaker 03:
That's correct.

[00:39:14] Speaker 03:
That's with respect to Officer McClelland.

[00:39:16] Speaker 05:
That's with respect to Officer McClelland.

[00:39:18] Speaker 03:
So you don't really, you don't really, this question of whether the dog was lying down next to her is irrelevant under your theory, right?

[00:39:28] Speaker 05:
It really is irrelevant, not that, under that.

[00:39:30] Speaker 05:
Okay.

[00:39:32] Speaker 05:
Further questions?

[00:39:33] Speaker 02:
No.

[00:39:33] Speaker 02:
Okay, thank you.

[00:39:34] Speaker 05:
Thank you, Judge.

[00:39:35] Speaker 02:
Apparently no time, right?

[00:39:37] Speaker 02:
I'll give you another two minutes.

[00:39:43] Speaker 02:
Could you start by answering this problem created by the intervention of the crime team search officers before the defendants did their search?

[00:39:54] Speaker 01:
Yes, so certainly that is a problem, although I have to say this is another issue that the defendants did not raise until their reply on summary judgment.

[00:40:02] Speaker 01:
Their motion for summary judgment as to the property damage argued solely that the extent of the damage was

[00:40:09] Speaker 01:
lesser than the damage permitted in other cases on different facts and therefore was constitutionally reasonable.

[00:40:14] Speaker 01:
There was no question about the identity of the officers who actually caused the damage until the reply when they essentially raised the point that we've just been discussing that there had been this crime scene search team.

[00:40:23] Speaker 01:
So this is another respect in which Mrs. Robinson was prevented from putting in more evidence potentially by the fact that this was not raised in the motion for summary judgment.

[00:40:30] Speaker 01:
Ultimately, though, I do think the answer to this question is the concern articulated by Judge Silberman, which is that it's not exactly fair to put on Mrs. Robinson, notwithstanding that she is the plaintiff, the burden of identifying each individual officer who was trashing her house when they had just forced her out of her house onto the sidewalk to wait.

[00:40:50] Speaker 02:
I certainly understand that argument.

[00:40:51] Speaker 02:
I don't know what the right answer is on the law.

[00:40:53] Speaker 02:
With respect to the defendants in this case, if they were the only ones,

[00:40:58] Speaker 02:
But here they're talking about a significant number of new people coming in before these people do their own search.

[00:41:06] Speaker 02:
That seems to shift things around a little bit.

[00:41:08] Speaker 02:
We don't know whether these people had any participation in that, or all the bad things were done by this other team that came in.

[00:41:16] Speaker 00:
Is there evidence that the first group didn't do any search at all?

[00:41:20] Speaker 00:
I don't think that the record would go quite that far, although I don't think.

[00:41:23] Speaker 01:
They picked up the bullets, right, at least?

[00:41:25] Speaker 01:
Yes.

[00:41:25] Speaker 01:
The crime scene report does establish that the crime scene technician who wrote the report did retrieve, I believe it was at least eight shell casings, some fragments from the rounds as well.

[00:41:35] Speaker 01:
Beyond that, I don't think the record says anything about what they did, whereas we do have the testimony of the individual defendant officers as to their efforts searching the house.

[00:41:45] Speaker 01:
And I do think that would create a genuine issue of material fact.

[00:41:48] Speaker 01:
And if I may briefly just pick up on Judge Tagel's question about why Mrs. Robinson's answer to the how did you know question is sufficient.

[00:41:55] Speaker 01:
Essentially, what the defendants are trying to do here is cross-examine Mrs. Robinson.

[00:42:00] Speaker 01:
This question about how did you know, what did you see exactly, the quality of her observations, this is the stuff of cross-examination.

[00:42:06] Speaker 01:
And that is why it is not appropriate at summary judgment to draw the inference against Mrs. Robinson, notwithstanding her consistent testimony that she didn't see what happened.

[00:42:15] Speaker 04:
Suppose there had been, in this case, no deposition of Mrs. Robinson.

[00:42:22] Speaker 04:
Would you prevail?

[00:42:24] Speaker 01:
If she did not put in any testimony whatsoever?

[00:42:26] Speaker 01:
Right.

[00:42:28] Speaker 01:
No, I don't think so.

[00:42:30] Speaker 04:
No, I don't either.

[00:42:35] Speaker 02:
Thank you.

[00:42:37] Speaker 02:
Any questions?

[00:42:38] Speaker 02:
OK, we'll take a matter under submission.

[00:42:39] Speaker 02:
Thank you.

[00:42:39] Speaker 02:
We'll take a brief break while the chairs are changed.