good morning me please the court my name is leroy stacker and i represent california highway patrol officer leo nava my colleagues and i have are trying to split our time up our twenty minutes up in the u k to split it into three  be succinct and to the point ok from the time my client arrived on the scene at the end of the pursuit until the incident was over thirty seconds past no more than thirty seconds and in that short period of time the situation went from a disabled vehicle at the end of the pursuit blocked in by a patrol car to one where the suspect was using this to con truck essential as a battering ram going backwards and forward ramming into a patrol car while officers were around on foot in fact he did escape and accelerated towards my client and the deputy deputy richie at that point deadly force was unquestionably reasonable pose a serious risk of harm to the officers on foot to officer nava and deputy richie and anybody else in the vicinity one of the things that the that the plaintiffs argue is that the officers sort of created that problem by not standing at a safe distance does that matter it does not mean that way doesn't it method the fourth amendment doesn't require the officers to back off to retreat to put themselves in a safe position a bad tactic doesn't establish a fourth amendment violation that says can there ever be a situation where the danger that is that is the justification for the shooting is something that because it's created by the officer's actions doesn't matter for purposes of the fourth amendment i suppose there is some potential hypothetical were where that would work but i don't think it matters and it's not a case the car was essentially everyone thought the car was disabled they took up a little it's a little pickup i'm sorry the car when you talk about the  top the truck was disabled that's where you left off go ahead everyone thought that the truck was disabled there was one of the ethical you know bumper to bumper on it and a fence behind it and that's at the point of the truck started going back and forth fifteen years going back and forth ramming and car plumb off this court's decision wilkinson a recent first just first circuit decision and in mcgrath in about eighteen other circuit court cases we've cited in our briefs in similar circumstances all establish that these facts which are undisputed material facts a stablished that it's constitutional use deadly force at that point i don't really think that i don't see a disputed fact that wo around on foot yes correct oh so just to make that full circle since you have your six and a half minutes use to get back to jets kanellis question if the risk that justifies deadly force is a serious risk of serious sorry serious bodily injury or death to the other officers who were standing in the area then doesn't it matter where they're standing where they position themselves if that's what creates the risk well i i would say it does matter where they're standing in terms of where they are in relationship to the truck i think because if if the car had just stopped me and given up that the danger wouldn't exist but i thought one of the officers said that the reason he started shooting at least one of them so the reason he started shooting is it because the of the officer standing in front of the car and he thought he was going to get there had been or was to get run over i think like he said doesn't really matter whether they were standing but my understanding is one of the officer said that because the car started to accelerate forward towards him since i thought your argument was that the officers are entitled the fourth member not to retreat because they're trying to effect the arrest of the driver and the only way to do that in this instance was to approach the vehicle on foot in the hope that they block the vehicle and but in truth that had not in this area palm off the stylus that it wasn't in two thousand and four there was three cases we cited in our papers first circuit mcgrath tenth circuit thomas and court over that looked at conduct occurring in two thousand and six and the morning judges for ricky sanchez from the off the county council on behalf of the county of san diego deputies taft and richie i'd like to start off by thanking the court for the time to review this matter and we believe that the precedents of this court and the supreme court have provided guidance and training for competent use in the court below the court below made some fundamental errors with respect to its analysis of this case it decided that certain facts were material and therefore summary judgment could not be granted to the defendant deputies one of the items is that the truck didn't actually hit deputy tapped but rather as it was heading towards her it passed it with one within one foot that is in and of itself an illogical statement to make with respect to the decision to use deadly force in response to trying to stop the threat of serious bodily injury or death was she down on one she was she had fallen on to the street at the time that the truck was accelerating towards her wait a minute but at the time she shot wasn't she back up on her feet no she was not ok so so it seems to me there's in her case in particular there's the there's the perceived threat because she was down she'd fallen immediately upon getting out of her car and she saw the truck trying to get pretty and then coming at her right and then i think just to be so you can fairly response opposing counsel argument their position is by the time the truck came to her it came abreast of her was going to miss her albeit closely so that when she was actually shooting it wasn't coming towards her it was passing her that's their argument i don't think that the argument in that respect water in a sense that case with respect to her discharge of the weapon she commenced fire as the truck was coming at her the fact that she continued to fire even after the truck and passion as they would argue does not make indicates nothing in that respect i think that it's more mulligan aaron gold is the one that actually i was questioned by defense counsel as to a hypothetical as to what could account for several holes in the driver's side of the vehicle with respect to your honor's question about placing an individual or an officer's position relative to a threat and whether or not that could give rise to a time constitutional claim i think billington answers that question strike quite straightforwardly billington duran follow alexander versus the county of san francisco the rule that this circuit has established with respect to that is that a tactical error if one could even be considered that under these circumstances there's not give rise to a constitutional claim unless you can find that the conduct of the officer with respect that the tactic itself was unconstitutional and would reasonably be expected to provoke a violent response on the part of the suspect none of those elements can be satisfied with respect to this particular case i know that in the in their brief the plaintiffs spend a great deal of time attacking the character of deputy richie as we pointed out in our reply brief the one case the deputy richie was involved in not this one it was taken to trial and there was a defense verdict on his behalf with respect to his use of deadly force that's not even a matter that should be considered as a basis for liability as against him or the county of san diego particularly since they are seeking to impose fourteenth amendment purpose to harm liability upon deputy richie furthermore with respect to the the court's assessment of liability in this case going along with the plaintiff's contention that deputy richie should not have even joined into this pursuit there is no constitutional right that i'm aware of that exists on the part of a suspect that would prevent a agency into whom serious stiction a pursuit is entering is prohibited from joining into the pursuit in order to attempt to stop the pursuit and take the person into custody which saw the deputy richie did in connection with this case with respect to his attempt to deploy a spike when you said that all officer richie did it sort of begs the responses well that's my only point is there was i know i know you're not officer not as a lawyer and get a chance to ask this question while you're co counsel is up but there was there was at least some indication i think i think it came from the plaintiff sexpert and maybe from one of the other officers martin i think is the one that drove up along to the side of the car that there was shooting before shooting started happening before the truck broke free actually i don't think that time familiar with that evidence i do know that martin said that martin heard gunfire he said he heard gunfire immediately after he had pulled up to the side of the car which suggested that's before the car broke free one would be able to possibly make that inference except the deputy mark i mean officer martin was inside of his car he had bent down and was trying to kick open the dummy ask you this if it's if it's if there's evidence that there was shooting before the truck had broken free does that matter in this particular case it would not be but the question is the definition of breaking through we do know that the unequivocal undisputed material fact is that the shooting didn't actually start and still after the truck had moved had rammed itself into deputy ricci's patrol car he's joining back and forth back and forth in order to destroy that barricade and and then that activity enough you you think would be enough to justify the shooting with respect to the proximity of the deputies and the c h p officers outside of a two and a half ton dodge ram pickup cars in total were damaged during this pursuit actually damaged i think two vehicles were disabled during the pursuit but i consider that damage so they were taken out of the service  and the vehicle driven by their martin when he pitted the truck twice instead and lee the first time successful to get him onto the shoulder but he broke away anyway and then a second time where he ended up on the east side of the one hundred one shoulder so that and deputy richie's vehicle or at least four yes at least four vehicles and then the next question is is there any testimony in the record as to what the various agencies could hear on their radios as the chase was proceeding did they switch to some kind of a mutual aid radio channel or were they relying on their dispatchers information from dispatchers of the other reasons we do know that the c h p in the northern district of san diego or northern county portion there are different frequencies that are used by different agencies in connection with their lone foresman activities with respect to the call that was made by the c h p officer who perceives that the suspect had attempted to strike deputy richie when he first attempted to deploy spike strips that was not a transmission that could be heard by deputy richie on the sheriff's dispatching unit as i believe it was often fenton's call and then how about as the chase progressed was there any effort to relay information from one agency to another does anybody have scanners in their police car and i'm not sure about scanners your honor but i do understand that various persons who are involved in the pursuit and depending on what channel that they had switched to i had actually heard that for instance deputy nava of an assault on an officer the two forty five call who was able to hear that as i understand that was put out by a c s p on it was and i know that my two deputies who defendants in this action did not hear it did not hear that ok those are my two you have one i can save mine for our thank you good morning  deputy attorney general michael kay on behalf of the california highway patrol officer timothy fenton your honor your honors the most important factor in evaluating whether or not an officer's use of lethal force is appropriate or constitutionally permissible is whether or not the suspects or the suspect posed an immediate threat of death to another person and in this case officer fenton arrived on scene he  was in the vehicle that was operated by officer martin they performed the last pit maneuver to continue driving north and approach the suspect vehicle from the north as a approached officer fen saw a deputy standing in the roadway exposed and he saw the pickup truck ramming into the patrol vehicle in front of it as officer fenton got out of his vehicle he saw that  pickup truck breaking free from its position and traveling into the roadway and through the area where he last saw the deputy standing under the cases aplomb hoff and wilkinson for the torres from this circuit  that's an objective really reasonable use of force because any reasonable officer faced with those circumstances would recognize that the deputy's life is in danger  judge can easily you asked whether or not it would make a difference i believe if the truck had broken free i would respond by pointing the court to the plum hard case in that case the suspect vehicle was trying to break free free it had not yet broken free and the supreme court found that the officers weren't a qualified immunity even though some of those shots were fired before the vehicle had broken free from its position the court also had questions regarding the assault on an officer report that was made by officer fenton well before the shooting incident i would first argue that i think those i'm at the spike incident but i don't think that's right i think officer ritchie testified after the fact that he hadn't felt that that had been an assault on a police officer so i get that wrong i think you got that wrong because in his deposition testimony i can point the court that they interpreted that move as an unnecessary driving move directed at the deputy who was deploying the spike strips so i have an officer if you didn't think so he would have been the subject of the assault and he didn't feel that he had been and in fact it was a maneuver to avoid officer involved in the shooting who had heard the earlier two forty five report from officer i believe officer naba did hear the call ok of course so it was within at least the collective knowledge of some of the officers who discharge their weapons that based on mr firestone's testimony that officer fenton fired his his weapon for the first time after the pickup truck had entered onto the roadway he testified that the for two tires of the truck had to be on the roadway may please report elaine hind appearing for general excuse me for arlene and robert medea the parents of the deceased i'd like to make the point in this case that the facts need to be able to in the light most favorable to the plaintiff in this case and in doing so we must consider the testimony and the declaration of the forensic expert mark firestone clearly says that prior to the truck breaking out of confinement three shots were fire novel officer another and at least he believes seven shots were fired by mr rich deputy richie prior to the break you know confinement and so can i stop you there because i think this is important maybe you could help me i think the fire honest report indicates that there or that officer richie fired into the tires on the passenger side of the truck is that right that's what well the tires were never examined post fence the factual scenario they were examined this is your expert yes my expert was basing his examination of the situation on the what was reported by the officers and their investigators but the opposite and their investigators never actually looked at the tires to see if the tires were shot out and your investigator and that's what i'm working with right because it really matters to your case where really officer richie had positioned himself right correct ok so by your expert report because i think you're right all the acts have to be viewed in the light most favorable to your client officer richie he managed to maneuver around walk around i guess you know the truck and fired into  the passenger side tires to his place and him put place and self in front of the truck and fired several shots straight on through the basically through the windshield or sped on and then and then when the truck broke free he was on the important that's why that's so important for me because it's i i agree with you that i've looked carefully at this case i want your clients to know that very carefully as i'm sure my colleagues did and we're very mindful how important this is to you all so so there's inconsistency about where officer richie was and when he disappeared are seemingly of course it was dark whether the other officers reasonable belief he'd been run over basically so it's very important to me that it is plaintiff's expert report that puts those shots into the passenger side tires so can you give me your best response to that concern and your honor my response that would be obvious or richie was never at the passenger side he was in front of the vehicle there's no evidence that he shot any of his seven shots anywhere but the front of the vehicle almost seven shots went into the front of a don't as he was moving to the driver's side we can review is there no notation in any of the agency reports of the shooting to tell us which tires were shot out on this there was notation that the front and the rear tire were shot out of the truck by which side  was on the passenger side so we know that those tires were shot out and the only testimony that we have as to who shot it tires was deputy richie so don't we have to conclude from that that some point he was on the passenger side of were you about to say that there is that nobody actually looked at the tires that the evidence is just the testimony about or the statements about where they shot exactly and dr carson states that mark ritchie's account of events is impossible the ballistic evidence places deputy richie in front of the truck when he began shooting and then moving south and that's the evidence that we are asking the court to rely upon in this particular case we're going to help me with this because somebody shot the tires out on the passenger side right well that's not conclusively proven is my point or the tires have not out on the passenger side or not is there no it's been all the agencies who investigated this incident nobody made a report a note in their report as to which tires were shot out if you look at the last page of dr firestone's declaration which is not nine thirty three and that's not my question and my question is is there any evidence in this record from any other source besides dr firestone as to which tires were shot out no evidence other than testimony well that's evident in the testimony is deputy his testimony which is not believable in this case because no other witness ever saw but you don't have any testimony other than we don't believe richie two to dispute the testimony that the passenger tires  well the tears appeared flat but that does not prove that they were in fact shot we're all four tires flat or just can't believe this two pack to the two tires on the passenger side were flat ok so let's let's say that richie didn't shoot out the passenger tires just for hypothetical purpose and was in front of the car when he was shooting which is what your your expert said tell me how that helps you that he was and from well your honor the car's going to get out it's going to get out going forward right it's not going to go in behind because there's a fence there it was completely contained when the shooting began and when they know it got out that their cars are completely we're not like it wasn't completely contained because we know what got out right we did ok you know it got out but the guy no after the fact it got danger to his person he wouldn't exit but doesn't know why does it matter whether he was afraid or not the question is whether an objective objective leo would be reasonable for somebody to think he was in danger i mean it did here's the me just tell you where i'm coming from so you've got the scar the tendon on the back it's a tendon on the side and there's something in front of it and it's then rocking back and forth in a in an apparent effort to get out and you've got an officer right in front of the car you know it can't get out to the back because there's a fence it's likely if it's going back and forth and it can't get out to the back the only way it's going to get out is going forward in other words right towards the person who's standing there so why wouldn't that make it objectively reasonable for other officers including that officer to think that that he might be in danger well you're out of the district court fact move he in fact moved out of the way when the current forward you know he moved a right way to avoid getting hit right but but but but when other officers are sitting there watching him he's in front of the vehicle is is there something is there some case or cases that say that if the danger that's perceived by the other officers is created by an officer standing in a place that turns out to be dangerous that that gives you a fourth amendment claim he stood in front of the vehicle because he did not have there was no objective fear that he would be injured at that point the vehicle was completely contained by the police officers vehicles nava testified that when he acts of the vehicle he had no fear for his safety or richey safety because that vehicle is completely air ariosto i think you c h p that it was seven at least seven times of a times did anybody testify about how long that took one minute two minutes not to my recollection as i stand here today i'm sure it's in the record somewhere ok however it was seven times back and forth it was enough time for deputy fenton emerton to go up north a block make a u turn come back box the truck in so there was time to deliberate there was time to think about what was going on in this particular case and prior to do in doing anything else they the deputy shot at the vehicle wall was contained before there was any threat of imminent danger to any deputy standing around the vehicle ok i asked why they had accepted i'm looking at the r o is there anything any other evidence that you're referring to well i did i would point to fire centerport once again he's the expert in this case that there was a failure to inspect and verify the tires had been shot as deputy ritchie claims that no other officer  the only question is since richie says i shot them what their testimony do we have to suggest that somebody else wellington those tires we don't know how those tires became flat because they know and they had do employ five pit maneuvers to try and get him somehow and certainly within one of those incidents the tires to become flat but nobody tests none of the pursuing officers testified that the spike impeach deputy richie not that you have other evidence that directly refutes what he says we do your honor and that's the circumstantial evidence and that says the case in the book that dr firestone which proves that the truck his weapon to shoot the tires out in an attempt to end the chase there is i in my personal opinion that could have happened but there's no evidence that it did happen  material issue a fact that refutes the physical evidence which is that the tires on the right side of the truck are flat and deputy ritchie says i shot each of those tires out and that's a pretty good indication that truck was not going to be had not even a four wheel drive two and a half to on the dodge ram charger it doesn't and your client continued to rock the vehicle back and forth this man was a marine is a deceiving this is a terrible tragedy everyone agrees with that so i don't want that to get lost but we have to apply the law and i really i'm having a hard time understanding this last point that you're making that the that that that the trial which i understand to be that the truck w contained and there wasn't a risk that it would escape because it escaped so it is cajun expat after our client was shot and we don't know how it exchange whether he was leaning on the gas pedal or how that happened but he was shot the fact remains that there is evidence presented to the court today that he was shot before he broke out of confinement for that but i think the point is is that if what you're relying on is the fact that the truck was penned in and couldn't break free the fact that it did break free means you're wrong that it could have broken free and therefore that gives the least some justification to the officers but it does not warrant the use of deadly force as the district court said it warranted perhaps moving out of the way and i do need to talk first minute time to my what my not that we played monday morning quarterback what we're not police officers but what should they have done base should have used other means of doing the suspect whether americans as they tried to try to mix or moving out of the way and letting the out the tires out what else should they have done the even if they did shoot the tires out and they moved out of the way the truck wouldn't gone very far and they could of certainly apprehended some of the and we don't know that i mean we know that the truck was able to break free  force was not warned don't know how far that truck could have gone onto flat tires i mean you can run a car on its rooms if you want to destroy the room and there were no civilians in the area it was two o'clock in the morning at the time that the bars close there at two o'clock on a thursday morning please the court dina costs on behalf of jennifer medina and i've listened to the court's questions one of things i really said from the dean is claims that this was a preemptive strike not a protective strike in the use of deadly force and the officers escalated the situation is that a deescalating one of the issues i'd like to address is our experts analysis there seem to be some indication that the set of tires were shot and why does it matter whether detective our officer richie went to the passenger side and shot out the tires because according to his account to the investigators he took the time to deliberate he he was at the passenger side in favor of the other team and that's why i'm trying to get you to focus on if if officer richie went to the passenger side so he's not in danger being hit and he's taking time to deliberate which is your position and he shot at the tires he's not using lethal force he's trying to disable the vehicle so what's your response to that correct that's what he was he was initially trying to do so you're not taking exception to those shots that's ok well it escalated the situation it sounds like you're not really focusing on on that segment which is where an officer richard was trying to shoot out the tires but you're more concerned about when he went to the front of the vehicle is that fair actually not really  shooting up the tires when you have that many officers and deputies on the scene i think what that really created was a reflexive situation where you had officers firing not because they wanted to protect deputy richie who is depending on which officer you believe depends on where he was placed obviously we had to hire a ballistics expert to perform its directory analysis that the law enforcement agency that was tasked with the investigation chose not to do purposely ok so so maybe maybe maybe it's this maybe you know something we don't know about that following when the when the when the truck came to rest where it came to rest initially was there ever a period of time where it was sitting before it started ramming back and forth there's conflicting testimony on the certain offices contend that it was great forced his deputy richie's vehicle twice and then broke out deputy burials who was on the driver's side of the trop testified that and actually the test described it this way too that it was wedging ok so i'm asking something different there's a there's a second if you could the truck came to rest where it came to rest with his back to the fence and right and was pinned in was there ever a period of time before anybody started shooting where the truck was sitting in other words is it your theory that i'm trying to follow your theory is that your theory that once he saw the fifth shot start and then and then the truck started to ram back and forth to escape or what did they do to escalate or to right to escalate so the truck started to do those maneuvers to escape i would say that their actions caused the escalation of the trucks movement it was the escalation of the the dangerousness of the pursuit by the tactics that were used and then at the time it was contained by shooting at what once the truck is pinned up against the fence and the vehicles in front of it the other vehicle comes up to the side was there ever a period of time that it was just a pause sitting there before he started moving back and forth according to our expert it appears to be because no scrape marks on the side of the passenger against the passenger door that he could look through the passenger window and see medina and basically the shooting started immediately because he leaned down he didn't see anything because he was trying to go up in the door but it sounds from his testimony the shooting was simultaneous with him putting the push bars up against passenger door and there's no straight marks on the side of the truck this is a very tough case for you once the truck starts doing that maneuver very tough case that's why i'm trying to figure out you know really what if your theory is that there's something opposite or did or didn't do that prompted mr medina to be maneuvering his truck that way you have a response to that i think there's i had to concede that up corporal medina was intent on unfortunately it's a matter of whether the officers use of force in the situation was reasonable when they had if you believe deputy richie there was time for him to take out of the tong and either use a taser or pepper spray but he chose not to he chose to use his weapon to shoot out the tires instead you have off you have that's at the driver side door that could have done the same thing where the windows open the passenger side window was halfway down officer ritchie said that he looked in the passenger window i just had enough was open or not he could he could it it also states that you cannot teach term an objective lee what somebody else reaction is going to be because cocaine unlike alcohol or other drugs  because they were attempting to pull him over for a dui would have assumed that he was impaired and you would think would use appropriate tactics of which there tranquility if he had yielded to the red red lights and siren but he did that the problem is he brought this just put out any expert evidence that was a windows position the way you've indicated the passenger witnessed window partially opened that it would have been feasible to use a baton or a taser is there any evidence of that no other than deputy richie basically stating that that was he had the opportunity to do that and chose not to where does he say that place as in his interview to the investigators and i don't have the exact cite for the record all right he had one of those crash bars or w that's correct but with the window half way down he also could have just used a taser or pepper spray hence my question do we have any evidence that either of those anything else would have been viable because that's your position your position is at that point even though the truck was doing that they didn't need to use deadly force so in response to our repeated questions about what should they have done where do i look is it is it is it because i'm going to go back and revisit is it officer richie's testimony that you want me to look at yes and it's the interview the day of one very brief point and just just to make clear the plainness of always taken the position from the time of the initial pleadings to the underlying briefing and even their expert firestone that no shots  they can see the position in their underlying opposition to the summary judgment and that's because their expert says that's what happened he says nada shot one novel in which you were in front of the truck as it was moving back and forth at least the first couple shots but we know it broke three and then there were the shots but it seems to me that your side wants to say those weren't the first shots and it was the ring not that we do this but if we were to look at your theory the facts your way is that richie went around to the passenger side and first tried to shoot out the tires i think  did but we have that when you say for shots your theory is that those were the fresh i'm talking first shot from my client at least and not not a correct and i think the issue with richie is that he did at some point she out the the testified that but he also testified that in this vital very dynamic situation he found himself back in a different spot which was the front of the draw see whether he shot the tires while the car was moving as opposed to when it was stationary i don't recall exactly what he said in terms of where the cars were not when shot the tires is at that point in the sequence of the test where he's talking about which where the wheels pointed it at that sequence i don't think so because i think at that point where the sequence of whether the truck was attempting to break free when the shots were fired and it did break free and it came at officers who are no match for this truck thank you ok case just argued is submitted then we'll go back and look at the record again and get