my name is eugene iredale and i represent the state of alex martin and his parents karen and craig martin it please the court there are three reasons why we ask the court to reverse the grant of summary judgment in this case the first has to do with a ninth circuit case coles versus eagle which specifically set forth the standard for the conduct of policeman when they are dealing with somebody in a car in a difficult situation the rule is that they are to give commands and have a right to have those commands obeyed if they are clear and able to be complied with in this case as in coles versus eagle alex martin was asked to do six well in coles it was only two things they said get out of the car and keep your hands on the steering wheel in this case alex within the span of sixteen seconds and this the actions of the agents during this time can be viewed on the video tape which is excerpt of which is record eighty eight he was told according to their testimony the following rolled out your window open the door so as your hands raise your hands and send  the car get out of the effing car in order to show his hands and keep them shown he could not open the window or open the door he was blocked in entirely on the driver's side so if he were going to try to get out he would have to go over the console which ends in the middle of this small for two thousand and ten ford focus if you will watch the videotape you will see the first agent approaching the door with them so much that i just wanted to talk to you about it because it shows i think very vividly what was being said and done in a massive quick confront to give way to your time's ticking and we watch the videotape and i get questions that can be helpful to me of course i just really want to give you an opportunity to respond i'm curious about where we should pick up the action because in eagle it's a very different precursor so from the time and specifically i wouldn't know what your answer is please to whether or not we should consider the conduct of mr martin as he passed through the border patrol station when officers knew that so what do we do with that information it wasn't just that they pulled them over from you know taillight i think you're absolutely right i think the t circumstances at the very inception of the contact and that you have every right to consider that and that that is a factor that is a legitimate be considered in the totality of the circumstances having said that i assert with equal vehemence and a great deal more emphasis that the court should also consider the very inception of this contact and it reads leads me to the second reason why this case should be reversed and set back for trial and that is the agents in this case law from the very inception about their contact when they first saw alex what you see on the video at the inception of the contact is so see those car comes in pulls behind alex's car and then after approximately five seconds you see alex's car take off so it looks like he's just fleeing but what we know from the depositions is that all three of those agents got out of their cars none displayed badges none identified themselves as a church at the first stop yes we're aware that an and that your position that that first stop is fair game to consider i do my consider my submission to the court is the court has the right and arguably the obligation to consider the totality of the circumstances including what caused the initial flight and of course alex's conduct thereafter but you in other words i think it's fair for them to say you know that he went right past the border patrol stop and that shows he knew at that point that they were police not  i think that's a fair inference for them that's a fair argument but you i have the right dad to say look at the very beginning two cars and you can see they say they have flashing lights there in the back and they don't look like police lights they're in plain clothes these people do not look like border patrol agents they did not display their badges and in this regard the be all reason why summary judgment should absolutely be precluded is because the agents lied their conduct shows consciousness of guilt what is your third point you said you have three you have calls point and point that you're now missing the third point is this cruise versus anaheim we can't see on that videotape what the other said well he was moving his hands about but in this regard if they're going to say well he was making a reach for what we thought was a gun or a weapon the court has the right to say hold on just as in cruise versus anaheim why would he be reaching for a weapon when there is no weapon and is that not in another itself putting aside the many falsified cations and lies that  there didn't turn out to be weapons how would they have not might my point judge graber something different my point is they contained he was reaching for a weapon i think their life but  because the sound bite from cruiser sighting is cited often and read in context that case is more about the fact that the whole sequence there could not have happened the way the officers describe because it that individual was found still  gotten out the car the way the police officers described in that case it's a very different situation than we have here well i read cruz this one for the proposition that judge kozinski i think very p some cases or case and he said she said this is a case of we said he's dead and in this case if they're going to rely upon this furtive hand gestures a basis for doing what they did i think i have the right to say given your many contradictions given the absence of anybody who was alive who can contradict that summary judgment may not be granted in this case on your assertion that an alleged furtive gesture for a weapon that did not exist is the basis in other words that you're not telling the truth agents and as a matter of fact just before we started today i watched the video get out of the conflict before your time is gone i've got a couple of questions i'd like to ask you officers were entitled to qualified immunity that your f t c a claim stand and what would that require you to prove yes you are for certain it stands on the negligence claim the negligence claim would simply require as to prove that the conduct of the agents fell below the standard of care and that negligence claims are the negligent it's just general negligence leading to the death of alex martin and other words the negligence all of the factual predicate of the negligence claims would be the initial approach to failure to display badges the pointing of weapons at him which they did not disclose initial but when they initially approached him in the dark when they had no conduct that they engaged in of a negligent nature which led alex to flee in the first instance in their continued conduct in failing to identify and in giving multiple contradictory con not know as a matter of fact we laid out in the record clearly what the border patrol standards say they say for instance that the stop was and california permits lawsuits against peace officers based on negligen they are acting in a reasonable fashion that they are not negligent and it also gives some discretionary component judged by b in other words it says well the officer isn't required to appear to certain standards but you have to in judging not comment according to green of discretion and if you feel the standards against which we would judge this negligence are what what are the standards for reasonable border patrol agent in right i'm trying to figure out what what what standards we would judge negligence against so if a if a peace officer is you know it's just driving on his way to the donut shop and pulls through a stop sign and hit somebody broadside somebody that's that's he's behaving in the in the way we can measure that standard we know that that that other california citizens are subject to the same standard so what standard of care here are these officers required to exercise when they're exercising functions that ordinary citizens don't exercise  you and you put to me a question that i had not thought of but let me try to exit if i could one is and i have not thought about this but under either standard we would prevail i believe a trial one if you just use the reasonable person standard now the words forget any unique regulations the border patrol requirements the border patrol training what they're just told is required of them just a reasonable person would not approach in the night and pull out a gun and pointed at somebody and say get out of the effing car without identifying the purpose or authority of a reasonable person is there such a tort in california the f t c is it is designed to make federal to make federal employees liable on the same basis as regular persons in the state is is there anything in california that that that says you can be you can be negligent if you approach a car and pull a gun out sure if if i do i mean a dark street  must angeles and i'm suspicious of some money i approach pull out a gun approach them and brandish them with no legitimate basis to do so cause that's a criminal that's a criminal act i see the crimean a level for an intentional tort where's the negligent tort well as you know acts can be both an intentional and negligent at the same time pleaded also assault and battery as i recall now and that in answer same that applies to those particularly towards not qualified immunity would not apply that is correct that is true but in the process of my first question was if if i thought that the officers were at least entitle to qualif immunity does that that leave your other torts in place and the f t c claims and the answer to my question is yes although i would hope i would beg i would pray that the kind of conduct you have here which was clearly good morning your honor is may please the court my name is daniel butcher and i represent the four individually sued border patrol agents as well as the united states picking up on the court's discussion i believe in some of the best place to start is the th billington case where the court distinguished between police officer conduct that led up to the use of force that can be considered a constitutional violation which then then can support liability under business for a subsequent use of force when the officer acts on constitutionally and gets him or herself into a position where the use of force becomes necessary and a situation where the officer's actions that lead up to the use of force can at best  considered negligence so i want to if i may just ask you the thing that of most concern to me it appears to me that there is at least a tr question of fact as to whether the amount of force used was excessive and if i you may or may not agree with the head but i'd like you to accept that as a premise of my follow on questions if qualified immunity is none the less available because of lack of clearly established law what survives of  in light of the level of force that was used and but there is qualified immunity because that constitutional violation was not clearly established and i certainly believe that's the premise of my gosh yes well you know something battery claim survive then i believe that the that these on battery claims to survive in that situation are quite frankly so if we were to decide the bidding is claims on qualified immunity grounds we would still have to decide the fourth amendment claims and there would be no qualified reason it applies is because the second prong is not present here in other words the there was not clearly established law that established the use of resource was unconstitutional but the court in the first instance finds yes this conduct did violate the fourth amendment  certainly i think the negligence claims would survive and in that scenario i'd have to give some more thought and perhaps some additional briefing to the court on the assault and battery and the but i think i suspect again without having researched the issue that they would survive in that situation when there's an excessive use of force that was that was unjustified and non privileged the calls decision i think had not been issued at the time these officers acted is that right that's absolutely correct you're  even intermediate force so first of all with respect to the inconsistent instructions i regard those as not constitutional violations perhaps negligence and of course case the inconsistent instructions were analyzed in the framework of the graham analysis wheel and also to get out of the car yes right yes that ok so if we were to just decide the things that the instructions here and i think there were five or six different instruction some in english some it's banish certainly very confused situation but if we were to decide a hypothetical that it was not possible for mr martin to comply with the with the instructions is there now clearly established law establishing that the use of intermediate force would not be warranted on that basis alone i don't reality and focus on that hypothetical if you would i think is with the constricting conflicting instructions has one one of the factors that way into the  necessarily mean that even if there are constant looking instructions then the use of force would be reasonable in every circumstance because the other ground factors could weigh in favor of the use of force and they have to look at the level the force that was answer the question maybe you can't maybe you won't but i'm having a hard time understanding why use of force even intermediate force would be warranted if the problem the officers are going to complain about is the failure to comply with inconsistent instruction well i think it again it depends on the severity of the crime it depends on whether the officers feel that their lives are at risk or there's a danger if you're chasing someone who's just committed an armed robbery and you think there's still a gun this a lot where cars pulled over for some kind of of a traffic violation and and that's very concerning because it's not uncommon for us to hear that inconsistent instructions are given by the police officers under those  inconsistent instructions were given simultaneously to confuse the plaintiff well maybe not with the purpose to confuse but they were given in very rapid succession right in response to rapidly unfolding events we know that initially is it your position that those instructions given in this case were not inconsistent that he could have complied with all of them absolutely he would have done that well initially mr martin had his hands up at that point would be reasonable from say ok he applied that instruction the next instruction is get out of the car and what does he do next reaches for the center console at that point instead of getting out of the car and like that instruction the officers and say wait a minute we can't see your hands any longer it doesn't look like you're getting out of the car put your hands back up and he's going to get yet another instruction and i submit that happens in a majority of cases of this type we're in where multiple instructions are given that may not be the same but the officers are reacting to what they see and a change in circumstances and under the totality of the circumstances here i think the court  to understand and appreciate that there was going to be no easy way to extract mr martin from this vehicle this when this was a circumstance of his home making and i disagree by the way with the court that this was a stop for a traffic violation it was not again and again i think you the hypotheticals not one you want to engage in so it's not going to be productive but what i'm what i'm telling you is that we see cars it's not uncommon maybe it's a high speed chase maybe but not an armed robbery we see the situation pretty common march fourteenth and carry over to march fifteenth two thousand and twelve we have the bryant case which was in two thousand and eleven and all that would go to the question of qualified immunity yes or not not to the reasonableness of the of the stop so are you are you asking us but the second stop for the second stop so at that point the agents had ample ample reasonable suspicion to believe that criminal activity was afoot agent fishman had seen a wrong way driver in the proximity of the checkpoint of interstate  t fishman the other agents know that's a friend with that entitle them to use intermediate force not alone standing alone no but it certainly in terms of the first ground factor establishes that there is a serious crime that is under consideration here and the need to be on the lookout for that and it's to me that that the circumstances were very different for the first and maybe even a whole lot more egregious but but then even if it's individual felt that he was being pursued by thugs and it was if it was very dark and very late they jumped out there three of them they point guns so it could be a very frightening situation but there's this intervening event right there's there's a it seems to me a break and the proximate cause ation which is why i ask you to look at the second stop because he went through a border patrol station and there was an opportunity there for safe haven so he didn't go ahead and he did take advantage of the safe haven right so you don't need to look at the constitutional violation in front from that point forward from the point of the border patrol station forwarded to determine whether or not that was reasonable well absolutely that's it's but it's viewed not to tell you the circumstances in vigil who had fled the officers required spike strips at the checkpoint where he didn't stop where he could have if you suspected that he was being pursued by robbers or thugs kept going and i would submit to the court as well that the danger there was a danger all the way through this but at no point in time was the danger greater than after the officers surrounded the car and then left the relative safety of their car and were confronting a subject they had no idea what they were up against whether there were guns there were bombs or in this case completely on forseeable to them the car was essentially a ticking time bomb or primed to explode fumes forgive me for interrupting i didn't mean to one of opposing counsels arguments is that that you think that these officers where not truthful and that they didn't identify themselves as police officers which made the situation more dangerous and that the video shows the men flipping their badges take their badges out and displaying them what should we do with those circumstances or well the short the court could consider them in a tautology the circumstances but again we have the what about what would what do we do with them i would just i would suggest nothing because the argument there is that the failure to display badges somehow caused mr martin to be confused as to whether he was dealing with law enforcement or someone who has some people who are up to no good and based on what we see in the video the the the plane we see the sirens we see the border patrol checkpoint we see a marked border patrol unit pointed toward mr martin with its lights flashing i think your argument is again at times i think your argument is at least as of the time he went through the border patrol station there couldn't have been a reasonable any reasonable confusion about whether he's  with respect to the issue of qualified immunity the law was crystal clear at the very beginning these officers had an obligation to identify themselves as law enforcement you see because i know the court has seen the video they don't look like police officers their cars do not look like police cars that he's been through he's been through a checkpoint and he's blown through the checkpoint over the over the spike strips he went around the spike strips he's got marks uniformed officers and marked cars there at the time you get to the second stop yes i appreciate that and the court can consider that i agree with that but understand that they're very inception of this was caused by that and we don't forget that these are very tragic circumstances council but there's this border patrol stuff and he did drive right through it after that point is it your position that mr martin was confused  saying is that the agents from the very beginning created a fatal ambiguity because of their refusal or failure to identify them some actually doesn't answer the question i think christians question was whether a reasonable person could have thought after the border patrol station that the people pursuing were not border patrol agents and the answer the question would be a reasonable person in the light of day with no fear would clearly have perceived that and a young man twenty four years old after having driven twenty three hours in a row in these circumstances in the dead of night having been a threatened by the people that he did not know who could have been thugs pointing guns for no reason may or may not have perceived that through his panic that's the best answer i can get that and that empathy this is the tragic nature of the of the incident but the officers are not responsible for the fact that he's driven twenty two hours or that or that he's or that he's confused or that he's twenty four because they don't know any of those things that is correct but the officers are responsible for their failure their deliberate failure to identify themselves either by saying border patrol or holding up a badge they are responsible for pointing guns at him when there was nothing other than a potential traffic stop and tell him get out of the effing car and they are responsible when they are interviewed by homicide to tell the truth and they love it when they said or yes we displayed our badge is when we see on the videotape that during the incident no badges were displayed and they pull it out furtively by the side and none of those three officers when initially interviewed ever edmund did that this whole thing began when they jumped out of their cars pointed guns at him and said get out of the house and we have your argument