morning your hours may please the court my name is robert freeman i'm a lawyer in las vegas nevada here i represent the appellant you speak up a little bit i'm sorry of course i can't my name is robert freeman i represent the operation in the city of henderson they were called to assist by the city of henderson police department in the city of henderson swat team the north las vegas swat team to flee responded to that request they were told to on site that  the situation was a barricade hostage situation and it wasn't well i mean if the the guy was refusing to come out of his house he had his answer that it was slated for term and by the police that it wasn't exactly and that goes to the heart of what we what our contention is on appeal we believe that the district court judge in this case imputed a bunch of knowledge that was right but the size which we're not dealing with a barricaded that mr white had relationships with neighbors in the in the on the block that were giving him feeding him information they were me they were specifically told that by home  decided that i was giving them information they were told that by the henderson please department captain who was on scene and they knew that how i don't know how they knew that that's one of the problems that that dangerous for the police officers involved and maybe neighbors to know when and how that was going to happen what part of the house was going to be entered at what time whether one or more parts of that i'm just i'm just surmising here but these are the things that are was why did he know any better than this why was going on he could your honor he could tell mr y exactly what he said i would i would i think i would want somebody to tell me if my position was changing regarding anything involving the police so he could give him the exact moment and point of entry on his house that that has to give the advantage to the barricade suspect i mean we we know that swat teams operate in high risk dangerous situations in which the element of surprise is very important to them they're going to lose the element of surprise if a neighbor is on the phone saying hey they're gathering outside your garage that's where they're coming in or they're gathering at your front door that's where they're going to come in this is what was known to by giving this information he was interfering with a police state recently suspected but they don't have any well vaguely is your word your honor right they said they suspected that he was providing information to mr y he later admitted that he was providing information to mr y i think that goes to the reasonableness of the officers interpretation of events there can i ask you is that the so that's the sole basis for the emergency here it's nothing to do with what the plaintiff being armed necessarily but they didn't know he was arm until after a year or you know relying upon in terms of their being in emergency was this concern that he was passing tactical information about the officers talked to plans to destroy and every every example of his conduct in response to police requests well just that that he was not going to cooperate but the problem i think i have my biggest problem with your position here is that there are disputed issues of fact as to what exact what kinds of orders the plaintiff was given and whether in fact he was making some deliberate choice to refuse he says that he never received any orders the only thing i think he says he received was a request early on from the henderson folks to could could they occupy his house and he told them no but after that i think his position is that i never received any orders from the police so it seems to me we're not going to be able to affirm or  his deposition he admitted that he received a phone call earlier in the day from henderson in which they just asked him to talk to them about philip why he didn't respond to that he admitted that he got a rick phone call later from the city of henderson asking if they get occupied so i did respond to and he says they never gave me any orders well they had any communication with our don't talk to white at that you are for forty nine and two sixteen of his and his deposition he says well i may have they may have said open the door but i remember them saying resident three sixty seven come to the door that's obviously no one and that's what they do that are in the door down and he didn't want to get run over by them with the battering ram so that i'm talking about before they did make the decision to enter the house that's what you're relying upon is that supposedly they gave him commands that were related to basically church trying to get him to stop conveying this information to to mr white and he says i never got any commands like that the first thing on my first interaction with your client was when they were about to batter my door down and i was afraid to go and even try to open it for them because they were already coming heat that's what he says i maybe you guys have a different position but that's a for the jury to resolve well my position then is that the orders that he was he obviously has notice about what's going on in the in the neighborhood he's obviously talking to philip why all he has to do is put his phone down they told him to put his phone down stop get away from the window that that there was like ten seconds when they came in  is what he says so the three officers that broke in the door yelled multiple orders at the same time that i was shot under the arm i know i was shot under the arm at that moment because my arm was elevated holding my phone he was talking on his phone i'm not sure if other shots hit me just then then i fell to the ground he says in his ems he said that he doesn't know well he p p says he doesn't know if he stopped talking to his mother he stuck to his mother it turns out at that time he doesn't know if you stopped talking to his mother when he when he was on the ground on the phone was still bias head so all i can all i can say is that when the district court of valuated this case they cited genuine issues of material fact that are clearly outside of the scope of the other universe of knowledge that north las vegas had you know they  district court judge who i who i greatly admire i think it was a complicated case the plaintiff's initial complaint had thirty something cause of action i think it was one hundred something pages long i get it your position is that anything that h be able to infer otherwise i don't think so your honor i mean not with the knowledge that we had i think it also says that that they were and they had a gun on him when he was taking the pictures that  if they pulled a gun on him but before they while he was in his own house looking out not looking out your honor taking photographs and talking on the phone ok and relaying information to the barricade suspect right so this this requires and i know you know this this requires an evaluation of the totality of the circumstances here but only the tally the circumstance is known to the north las vegas police department not what was known to henderson  administrative investigation blamed everything on their captain right including our entry into this house blamed on their captain for creating an emergency that didn't really exist objectively but in our heads it did exist in our heads we have this guy who's saying i'm not coming out you've got to come in and get me in our heads we have this guy who's hit his wife earlier in the day and she's gone and called the police and she's afraid to go back again in our heads we have neighbors who are forwarding information to the  suspect imagine how valuable that would be to a really bad person or in the end record the notion that the fact mean to overstate that suspected of providing information to philip way you're not be able to rely on the eggs in circumstances exception you're really relying more on what i guess is called the emergency exception right because you don't have your clients don't have probable cause to think he's committing an offense we're we're relying on emergency we're relying on the need to act a reasonable lobster would perceive the need to tell boys but we have to get in there right now we have no time to go and get a warrant i mean that's crazy because there's imminent harm is going to be inflicted on someone right and as i say that's how we argued it in our in our papers and i guess the brigham city case right and and maybe the concern with the safety of the infant in the other house would be that sufficient concern but i guess what the problem i think i have with your position here as i said is that i think a jury could say that it was on reasonable even if you thought there was an emergency not to at least go and see if the guy would cooperate with you before just battering down the front door without giving him an opportunity to to respond and i think a reasonable jury assessing the facts and in the light most favorable to him could say even if you had all of the concerns you just express i'm not saying they're not legitimate that it was not reasonable within the meaning of the fourth amendment just a batter someone's door down without giving them an opportunity even open and talk to you guys so what's what's wrong with  this and if the guy at that point doesn't cooperate ok well maybe it's a new ballgame but i'm saying you just taking the facts unlike most i really am i'm just you have this sort of suspicion not confirmed i would even say you have reasonable suspicion to think let alone probably cause a think that he's conveying information well i disagree under the guise of gordo i disagree with that your honor i mean i look what we have is the suspicion that it's communicated to us by henderson and then a bunch of observations right so so the obvious are see the guy taking film and talking on the phone the officers know that he wouldn't come out earlier the officers know that you know they kno out earlier the only as i understand it the only not come out is they want to check come into his house he uses staging now is there any other not can well i mean look at this is this is the this is the part of his testimony that i find the most troubling and i get your point your honor i understand what he's going to say but there's a point in his deposition it's at the record of it's your for fourteen ok seventy four his deposition where he actually is talking to what i think is a north las vegas police officer on the telephone is certainly an officer talking on the telephone and this is what he says and i know i'm almost out of time so this i hope good way for me to end i had i was in my garage photographing at the time i received the call and i think i had snapped a photo right when right when the call came through and of course since my camera is my phone i could no longer take pictures while on the call and he says but i could i could view an officer in between my house and the neighbor's house and he was on a cell phone holding down his shoulder mike while on the he didn't know i was watching him or that i could see him so what page that's on page seven it's on the e o r e four fourteen it's page seventy four of his deposition this is what they are dealing with there now you can say that he doesn't he says things that he didn't hear that he didn't receive but he obviously did you so is that testimony that somebody asked him to come out i don't know what happened on that telephone call your honor but he was talking to the police about what was going on and i still have no evidence that anybody asked him to come out he was asked to come out by the message that you said that he did that he said he didn't receive until after he was asked to come out by the city of henderson he was asked to come out by our guys but of course he says that he didn't receive those commands of course he did receive those commands i'm reading that quote as evidence that he knew what he was doing the whole time that he was actually asking acting in a way that was escalating that you heard gesture is the reason for our appeal your honor is that the is that the genuine issues of material fact that were actually cited by the district court or just not stuff that we knew so then i would say that the that the disputed facts that you're finding are not genuinely disputed facts kelso if we take the five the facts in the light most favorable to the plaintiffs then what does that do to your argument no reasonable here says he didn't look at hughes easy you say he got a voicemail he say he didn't look until afterwards i mean certainly in my experience i don't i often i first of all his his suggestion that the voicemail might not even have showed up at that point certainly consistent with my experience and second of all the fact that he didn't listen to it the point is certainly not inherently unbelievable so what are we supposed to do with that now the jury can just believe that i understand your honor i you know what i think is that if you look at the totality of the circumstances in this case you'll find that mr mitchell says selective description of what happened that day is not supported in the record not supported such that a reasonable just reading from that was is from the call where they henderson police asked if they could occupy that was that's a different quote now the part you were reading from if you read about three more lines you would see that he's talking about the earlier call so i don't think i just think what you represented was quite misleading in suggesting that it was some other call he's only talking about the call where they asked occupies house it's right there on page seventy five just keep reading a little bit further from where you work well i mean he  the reason that this case should be dismissed because in order to make the qualified immunity determination what you might just miss because there is not a basis to appeal if the only thing to either the appeal should be dismissed or the court's denial summary judgment should be affirmed and i can counsel look at the facts in the light most favorable to the plaintive and doing doing that determine whether or not the facts as relayed by the plaintiff's reveals the valleys of the constitutional right we can do that yes your honor i think that's exactly right joe johns and and here if you if we take the account of facts by anthony mitchell and draw the inference is that could be drawn in his favor i think there's no question that the defendants violated clearly established fourth amendment law was one of the fact that he was wearing body armor he was wearing a kevlar vest such as a lot of the s s body armor and that was i think very rational thing to do after a swat team pointed a rifle at him twice which is what he testified to he honor and that's a page he testifies that based upon the fact that they were standing next to a vehicle with the north las vegas name on it that  that he believed that it was the yes it's at two thirty eight of the record north las vegas swat was on the truck that the officers were standing by when they pointed the rifle at him which case and in the robinson versus a lot of county so at this point all they know is he's taking pictures and filming and they're pointing a rifle at him i suspect that he's sending these pictures so why well all that they certainly all that they know is that he is taking pictures and i'd be very happy that he's taking pictures and possibly video and i do want to just a regular suggest why it is that he would have a better view of what was going on and why did no in fact the record indicates mr mitchell states under oath that he could not even see mr white's house from his home so he had no ability now that's not relevant i mean it could be that the swat team people were in front of his house outside of white house and that might be the explanation but i just wonder you know where this suspicion came from in a sense that you know in general i would think whatever he could see why i could see that maybe that's not true because they can think you're ation i wonder if the records show you anything about that the records show the record indicates that there were numerous outdoor cameras at the white residence so in all likelihood mr white knew far better then mr mitchell what was going on outside of his house in terms of the suspicion that mr mitchell was communicating important information to mr white i don't know where that comes from either i do know that the affidavits of the north las vegas officers which are at three fifty one and three ninety two of the record make very clear that it is only sort of a hunch or suspicion in the cost or an it says that he was informed that the henderson p d believed that both the three sixty two and three sixty seven evening side residents were in contact with  white well if they convey that to the north las vegas what then the north they guess what he was entitled to rely on that in their actions weren't they well i guess it depends on what the actions are and i think that what were they entitled to rely upon the information that was relayed to them by the henderson police department i think so of course i think would be very reasonable to rely on from a ship that was conveyed i think the question here is whether a reasonable officer would have taken the information that was provided which is that one officer said that a lieutenant from henderson said that there were pos that that they were possibly providing tactical information and i think that it would occur to any reasonable officer exactly the first thing the judge resign asked miss mr freeman is how would they know that ok i don't think it takes any specialized detective attenuate like basically if someone says hey mr mitchell is probably communicating with mr white before i take the battering ram to his door i might ask well how could we know that is there a sting ray i mean there's nothing in the record to show that anyone knows that so they just like they say that this is a barricaded hostage situation there was never a hostage there was never a threat to the baby the only barricade where the police officers putting up cordoning off the block and i guess i think justifies knocking down someone's front door and shooting them with i think your position or your client's position depends really on the conflict over whether he was given orders to do certain things before they decided to force sentry because if he had been given the orders that the officers describe and he was acting in a way that suggested no he is deliberately being uncooperative we have every reason to believe that what we were told about the communications going back and forth this happens to be true i think it's a totally different case i think your opponent quite articulately laid out why officers in this situation who at least in their own mind were thinking that we need to potentially save the life of an infant that there's not time just to d like we get to do up here you know with twenty twenty hindsight but i think that to me is the key point is that your client says i never got any orders so i was even a position to resist or you know or obstruct so to things that most directly judge wofford i think you're exactly right mr mitchell says under oath that he never received a command i believe he actually says at one point because they swayed the right they made a gesture with the rifle while there pointing at him which is itself an excessive use of force to get away from the window he understood they were telling him to get away from the window but in terms of a lawful command they certainly never did what your honor suggested knocked on the door and said look we need to be sure that you're not compromising our operation hand over your phone or we're going to have to whatever we have reasonable suspicion there's a million things that they that they they could have done short of bang on his door it was on his voicemail that he says he didn't get frankly your honor since he testified and it's as your honor said better than i was planning on articulating it it's hardly incredible when he testifies that he did not receive the voicemail until after the incident down i don't i don't think anyone who's had a cell phone can say that they have received every message in a timely manner or necessarily looked at it was all that was going on even if a little pop up that he had a voice mail popped up  the officers were forty to sixty feet away from his home he's inside the home how can they give him a lawful that i mean it's something for the jury to sort out because that the opposites of course have a different version and i personally agree i mean it may be that a jury discredits his testimony says we believe that i still there still frankly nothing in the record to explain how the officers could give a command from forty to sixty feet away when they're not talking to him on the phone he's inside the house and they don't say they have a excessive use of force even if there was not the fourth amendment violation of battering down his door because he said it was within a second less than a second of when they beat down the door that he was shot with pepper but that again that same issue with the four century is that if you believe the officers version of events they entered said three times you know with space in between get off the phone drop this do whatever and he was deliberately disobeying their orders and they had no choice but to use force to subdue certainly i don't know where mr freeman was going with this idea that you know if there's something contradicted by video or he says something that's so ridiculous like i jumped over the house and i was in the backyard then you might say well we're not going to we're going to assume that that's not true there's nothing that even approaches that i think all of his testimony that is inconsistent with appellants testimony is eminently reasonable and is for the jury to decide on the issue of the same thing is true of whether they had probable cause to arrest all the all they knew was that he was photographing and he gave them the finger they didn't know they didn't have i agree that was probably not even reasonable suspicion certainly was not probable cause to arrest so that's a violation of the fourth amendment justify a warrantless forced entry into a home and the supreme court and this court have emphasized that that the main purpose for the language in the fourth amendment the chief evil against which the wording of the fourth amendment is directed is physical entry into the home numerous cases say that in order to do that well first of all we have the issue of you know you judge wofford mention well we have time to dilly and dally and consider this work well while they didn't while in fact they did and they did call the city attorney's office and they did have a debate about whether there was probable cause to break down the door it was earlier before i thought that was before the or what i think it was but the point is that there was no there was there was no escalation of a problem from the time that they were calling to get legal advice they could have called the judge to get a warrant and said explained all the circumstances and then hey if a judge says i'm worried about this whatever then they've got your wine and you've got your ticket not one hundred percent or pretty much your stafford case that appellant site says that the burden is on the is on the police to to show that a telephonic warrant was either unavailable or impracticable they have not met that burden there was nothing stopping them from calling