was shot by deputy delegate on september the seventh two thousand and thirteen and your honour's probably are aware that the family doesn't receive any evidence about what happens if they receive anything except for th the eighteenth two thousand and fourteen more than a year later again the parents had no evidence at all in two thousand and fifteen january thirteenth two thousand and fifteen  advised the court in the supplemental xor of the record seven that there is still no production of evidence from the county on so what was a discovery deadline in this case well this is this is of council there is there is discussion and then in january two thousand and fifteen there we try to we proposed a schedule discovery schedule trial schedule and it was and the court was advised of some things advice that one plaintiff had no question because you talk about there evidence of your not having any evidence the complaint alleges that the dog had held down the deceit and the officer then shot the deceit and what's the basis for that well because we had the body we could see the dog bites on michael on the on the their son's leg but how do you what supports that theory that that's the way it happened there's no evidence in the record i mean there was some period here this wasn't a motion to dismiss it was a motion for summary judgment right but there is no evidence in the record that supports that account am i correct well the we were prohibited from doing any discovery on that and what you brought the complaint and which that allegation was made so what was the basis for that allegation to the basis of the allegations your honor where that are the the seed was was unarmed and that there is a now but for the scenario that heat the dog was holding him down i may because that would be a an excessive force claim a viable excessive force climb somebody is held down by a dog and someone shoots them anyway but i don't know what supports the fact that that's what happened you have statements by the officers you have an independent witness and none of those individuals support that scenario so my question is what does support one area of course of the time of the filing of the complaint your honor we had no evidence we didn't have those statements of the officer or the witness we had that but we did have is the knowledge that these dogs are trained to latch on and stay on and so we believe that the dogs dog continue to do what he's trained to do and is to is and he the body that we had had wounds from dog and also bull on and we have no reason to belie now even now really so we have discovered that the dog didn't do what he was trained to do and stay on the client at it while he was shot by officer darvish can i have you go back to the discovery issue again and really looking at the district court ruling that was setting forth continue then the the there is no evidence was submitted until after the when the court that plays advice when you say no evidence was submitted i think you need to be more specific are you talking about no discovery produced by the defen late january where we even got the any evidence at all so we could start commencing discovery and in the end then in january thirteenth that the county advised us that we were going to have at least fifty fifteen depositions and each side we agreed to that we also agreed to discovery cut off because it was so much stuff was going to be in october but in fact what they were doing is they were preparing their motion which is going to which is  cut off or discovery on april first and then we try to start discovery there and do anything there the records if it's on the supplemental record three three nine paragraph six they objected to all discovery everything we were not allowed to do anything so instead of having to october to do discovery we had about sixty days to evaluate everything for the first time and do all of our discovery that's not that some possible software they had they had all the discovery had all the evidence for over show even with what we have we show officer delegate saying alternatively different things she says in the one in the in her off in the officer involved shooting statement that she would not have told this person to stop because if you tell him to stop he'll tack right but in the declaration she said i called told him to stop and it's also why is that material because if when you have a mentally ill person this is also was he was mentally ill when you have a mentally ill person it's known in the end police officer trained that when you compress time and you and you and you put in and you tell people to stop and you get close then they are prone to attack  situation that led to the ultimate excessive force yes but that but what creates that situation are starts the chain going has to itself be a fourth amendment violation it's not negligence it has to be a fourth amendment violation reasonable suspicion but the standard your probable cause to look just to stop him just to say the words stop you need probable cause why isn't more like it investigated because because the this stated the stated reason was fifty one fifty and fifty one fifty as well that's to actually take someone in custody that we were talking about just stopping to ask someone a question it's sort of the equivalent to a terry stop her and there's no there's no there's no activity afoot there's no criminal activity but she says that he's acting irrational that he's acting aggressive there's this in earlier nine one one call that he's standing out in the middle of the street that's creating harm to himself i know at this point in time he's walking along the road but she's him acting it in and what that's what she says but there is that that was not your position that you're entitled to test the credibility of the assertions that you're entitled to discovery to test the credibility of what the officers are saying even if you don't yourself have evidence that contradicts that well i think we certainly are let into how to cross examination of people who are witnesses i think that's absolutely yes i also believe that there is a good possibility that this officer was confusing the symptoms of his disability mental illness with aggression so they were walking in leaving that aside where you got to get to the excessive force so what your excessive force there is that you think you can prove her discovery let's because you know that if you get to the judgment calls of officers you get into the area of qualified immunity no question about that i mean it's not that she got that warning and said i'm going to go i'm going to go kill this guy she was responding to a situation that developed and you can take issue with what she did but as the more we get into the discretionary area now we're going to qualify munity now so tell me what how you expect to affirmatively prove excessive force if you're allowed to continue with discovery well i think once we are allowed to depose the witnesses and the officer we will be able to show that in fact this dog did do its job he's done a really strong and the dog did he didn't throw the dog around like this he he was not there so you're hoping that through cross examination the witness will admit that she lied about what happened and that all of her prior statements are incorrect is that or misperceived well also the stop itself and i think also once you know if the initial stop is illegal and then the officer provokes them that's also a viable theory but to show excessive force you actually have to prove that the dog had so you would you hope to show that the tow truck driver also was not being accurate about his earlier statements if and every case you are allowed to were allowed to depose witnesses in cross examine witnesses the right of cross examination is is is that you know it's the foundation of truth and statements are incorrect in police reports all the time and that's the purpose of cross examination that's why players are entitled to cross examination and what appellant the main complaint regarding this case is that they felt they did not have adequate time to conduct discovery and in all honesty that is incorrect on december eighteenth two thousand and fourteen as seen in excerpts of record eight the county defendants in that case they provided all the discovery they informed plaintiff counsel appellants now that they were going to be filing a motion for summary judgment and they outlined the areas that they intended to file that motion for summary judgment so is your position understand why they just record would say no you're not entitled to take any discovery well it's not necessarily that they aren't entitled to take that position it's that the county defendants decided to move on their motion because they felt based upon the test on the interview statements by the witness the tow truck driver that they had enough evidence to move forward on a qualified immunity argument and which the court ultimately agreed well you m you may have had enough in your files but the question on even on qualified immunity is whether genuine issues of material fact and you if you don't let the plaintiffs even try to develop an issue of tiriel fact it's a it's a bit  unusual right but under qualified immunity that the courts have the supreme court and even the ninth circuit has adopted the language has stated that it's important to get these qualified immunity arguments decided as soon as possible well no question about that but i mean you usually either side on at least a fully developed record on the issues of qualified immunity that basically that is the case but so here's our it does ventura county have a bite and hold training policy with the stocks you know but that i do not mean they have the bite and bark and some some counties in the biden hold training in other counties i am assuming ventura county has a biting hold i assume so as well but i saw their theory is that the dogs release was a biting hole that there was that the victim was subdued and that excess that at that point anything else was excessive force that's their say or even apparently correct why couldn't they take a deposition to test that theory before the judge rule on qualified immunity well your honor they had every opportunity to do so the after the scheduling conference there was three months that went by until the motions were filed at that point on april first the county filed their motion for summary judgment and they set it out two months in advance so the hearing date was originally june first two thousand fifteen at that point six days later i believe on august sixth or eight or sorry april sixth or eight the plaintiffs in that case appellants sent their first deposition notices for deputy delegate and two other deputies they did not and never did notice the deposition of the third party witness robert murat is it fair to say that  time given that the discovery cut off was three months away was that the reason for the stipulation to continue right the stipulation to continue was to allow for this discovery dispute to be heard it wasn't necessarily to move the hearing date so that the depositions could take place the county was still going to argue in front of the magistrate sign that the depositions were unnecessary the only deposition that really matter was that of the independent third party who witnessed the entire events he was able to see the use of force it was you object to that deposition as well there's no basis to object to that deposition but didn't you checked to the depositions that were noticed and that all future discovery however even the district court judge correctly pointed out that there is no authority for us while claiming qualified immunity to in fact prevent the deposition of a third party independent witness who is not a member of the county of inter or the ventura county sheriff's office so that deposition would have been able to go forward right the pitch but as for the question you didn't object correct weeks we stated that we weren't going to allow any discovery to move forward however it didn't prevent just because of the a misunderstanding of the law by appellants counsel for deciding that ok i'm not even going to attempt to notice a deposition shouldn't be a penalty to the county of entire or even be considered in the abuse of discretion standard for the district court but in a nutshell while the parties are  but the the main point is that for the three months before they knew that this motion was going to be coming when the motion was filed the county objected to any discovery at that point and then from then on they tried to do this to feel ation the parties signed a stipulation but the stipulation wasn't only limited to the moving the hearing date of the motions it was also an attempt to move back the entire trial date to two or three months including the discovery cut off and said that for the district court in receiving this stipulation found that there was no good cause to even allow the hearing date to be moved because they were in fact asking for all dates including that which has been agreed upon at the scheduling conference to be moved back and so therefore the district court felt that there was no good cause there and therefore there was no basis to even move the hearing date in that regard is it really your theory that in a case alleging excessive force on a ninety three that the county is entitled to prevent discovery and rely on its own affidavits alone well first your honor we aren't relying on well no i'm just saying i mean it's that or your own production well the basis of our argument is that the county provided all the materials to plaintiffs in this case and they had ample opportunity there were over seven hundred pages of reports policies recorded interviews and statements that they were able to review at that point they made no efforts to even request further production and even acknowledged i'm not asking about what what they did or didn't do but it seems like the county's position in this instance is that an qualified immunity case all you have to do is produce your documents and things go to go directly to the judge without allowing them to take any and he depositions that's not the position of so why did you object to the depositions of the officers because while we raised qualified immunity in this instance we felt that the court had enough evidence and supporting documents that it was unnecessary and a lot but why did what do you say that i mean basically you're saying you get to hear our case but the plaintiff doesn't get to tender any evidence on to establish a genuine issue of material fact we when even though that summary judgment even on qualified immunity you must construe the facts and light most favorable to the plaint correct and then two days of depositions will to solve this problem yes but at this point we have to look and determine whether there was an abuse of discretion and preventing the additional discovery the county's position here is that the court received enough to make it to the terminations but it's all one sided it's one sided in the sense that it all aligns with the county's theories the main and most important piece of evidence in this case is not the statements of deputy gallop it's the recorded interview of the third party who observed the entire incident he was able to see the dog latch on to the seat in the arm and even though that the dogs are very strong and very heavy he was still able to swing the dog around he was able to punch at it he eventually reached deputy delegate and punched her in the face which caused her to draw blood from her nose there is no doubt through the third party testimony that the use of force was not only reasonable but well third party interview right admissible the court found that the declaration which is signed under the same penalty of perjury as it is that the delta testified in court was admissible as long as as well as all the additional documents the reports generated the nine one one call which corroborated what deputy delp had observed as well as there were other passer by ayers who drove past the before and her entire knowledge of the seating was what she observed on that day several times got out of her vehicle tried to make conversation with him he didn't agree with he didn't comply he kind of turned around kept walking she tried this two or three times and eventually he decided to charge her and at that interview of the tow truck driver that didn't stop and then he was ultimately able to reach that he dealt with it and punched her in the face and then the tow truck driver was also able to say  was easily able to see the seat and try and reach for deputy dealt with a firearm which ultimately resulted in her wrestling him for the gun and shooting him one time in the chest  had also like to address the eighty eight claims by poland and how that under the ruling and she had and the facts are clearly different in the sense that deputy delegate she had no knowledge that the sit in was mentally ill in the she had case in those cases cited by some by the time of her repeated encounter she must have had some idea that he was mentally ill i mean that was the basis on  which her you climb at one point that she was permitted to tell him to stop so at that point she had some idea he was mentally ill correct but should call for backup correct he did call for backup and backup was initially dispatched as well they just hadn't arrived yet but in this instance there is no indication why he was acting the way he was could have been drugs it could have been mental illness she wanted to make that determination there were fifty one fifty stop and be able to properly identify what is going on with this individual and so she had no knowledge necessarily that he was mentally air filled their forwards and he claims that she was prejudice or fail to accommodate him wouldn't apply in this case additionally there's also the ninth circuit agreed and she had and that again circumstances can be weighed in the reasonable  exigent circumstances the eggs in circumstances was that she had been told before that he was behaving irrationally he was walking in the middle of traffic this is a populated area there are cars going by  road right right but she does she did have knowledge that he was walking in traffic clearly what she had seen is he's acting erratic aggressively if a car happened to pass by he could have jumped out he could have been an injury injured himself or he could have injured those in the vehicles this was a populated area in which he needed she needed to make sure that the situation was controlled additionally unlike in she hand this is an open area and she hand the case the because the plaintiff in that case was in her room in a confined space there were no other individuals fact could've been harmed by the mentally ill individual will give you two minutes of whether or not these objections were good or not and then do the opposition's so we got together and we agreed amongst ourselves let's have the courts let's have that the court decide whether or not this discovery objection is valid so we