morning good morning i am john reilly with the city of san diego city attorney's office i represent the city defendants there's a couple things i'd like to address early on and that is we've heard all different kinds of cases here sometimes they refer to these cases as blood and guts cases blood and guts cases we have police we have guns we have guns in the hands of the are injured using replicas in this case the op a serious knew right away it was a toy gun and much of what is alleged here occurred after that knowledge was clear right certainly that's what's alleged here on her no i'm just asking you samoan man young man with a gun supposedly they checked right away it turned out it was a real firearm they knew that everything that occurred after that point was with the knowledge that this was a toy gun there was no real gun that you agree with that for purposes of this case for purposes of this case here yes i do agree with that your honor but i think we have to take into account we can't just isolate or put in a vacuum what is what we'll call a replica of a gun as the e r four zero knowing is a picture of that gun it's far from looking like a toy know what they were looking for let's assume that women and children by handcuffing we're doing that to see if they had a rifle on them but i think your honor we really have to take a step back and let's take a look at sergeant swash sergeant slush was the individual in charge of rick an american ok shotgun i want with all these searches having identified the smaller gun he was looking for a rifle well when you get a report and that's why i was trying to paint the picture where it's and we don't use ease things sometimes we see cliches in cases this was an apartment complex that he just a week before had a call environ valving sergeant's loss where there were people lying in wait with guns it's an apartment complex that within a year or so before this someone was shot dead in gang violence so it wasn't just a call saying hey we've got two guns here what you got is  black but my point is that officer doesn't walk up that dark and it was dark that night it's ten o'clock on a saturday night in a very dangerous part of town he does not go up there in isolation thinking oh there's only two guns there could have been dives there could have been other things going on what sergeant sloss whole intent was was to figure out what's going on you know i mentioned gay eggless and i did that for a reason because the the court after one gentleman was handcuffed at gunpoint put into a car and moved the court concluded that this investigatory stop worked it did what it was supposed to that gentleman was let go here we had at least twelve fifteen people that are part of the plaintiffs we also had a you shaped apartment complex he wasn't just mindful of the people in front of him he's looking to protect not just himself not just his officers but people around because of gunfire erupts there's trouble so he did a commendable job here what i'm pointing out is it is not day goes it is not a case goes you're dealing with these young men out there clearly under supervision they put them down they handcuffed the macho thing and after they knew that this was a toy gun but then they go inside to people from whom far as i know there had been no comments no anything no threats and basically you had women and children who were basically assaulted by these officers and treated as if they were criminals how do you justify that well the only alleged assault there's two alleged assaults or on excessive use of force the one is there was a common complaint that handcuffs were too tight the other one unfortunately in our papers point out that we are not discussing for purposes of this appeal the excessive use of force claim to the one gentleman who shoulder was predisposed to injury and unfortunately that came about but your honor what i'm talking about is this was forty five minutes fifteen people plus others you divide that and you know as i said in our papers it's somewhat spec some declarations filed with this where plaintiffs said oh it was thirty to forty minutes but even going with there are thirty to forty minutes despite a cad report that shows it seventeen to twenty five even going with that that's about two two and a half minutes per person to secure the situation but again there was no threat from these other people and there was still one gun on account of it can you imagine if you were a young teenager and you had that happen to you how traumatic that would be well if that if something else went wrong it would have been much more traumatic on everybody's part and you know you can just do this any time you want there's a gun out there they're worried about this apartment  and you know they've had some crimes there before therefore you can rouse doubt civilians anywhere any apartment because you're concerned there might be another gun there is that the city's position this is and that this is more than speculative cliches of officer safety there might be this was real and it wasn't just the officer safety it was anybody standing what had heroin was the threat and once you knew once the officers knew that this was a toy gun what was the other threat was it what my colleagues talked about a possible shotgun possible shotgun i also remember seeing them mention that after the initial toy gun was found they say now that that's what they were looking for was the gun there was the initial report was two guns that is that what they said they were looking for yes and more importantly what are they say that on the record  i couldn't point to the exact there was twenty two depositions your but your representation is that that's what the officers said they were looking for when they went to this group of fifteen roughly people if i could please frame it differently officer sloss was most concerned with making the place secure a terry stop allows the police to first make it safe you know and then he vicinity right right right by the car i get that but now lives inside in  building and they were having a barbecue again let's put it in the context it's dark it's ten o'clock there's people yelling all he wanted to do was secure the situation make sure that nobody got hurt and when he was done  on people for their own safety he handcuffed them for the police officer safety and their own just picture this one of those kids not thinking and it is in the record your honor that the guy the kid who had and i say kid these were thirteen year olds who were over six feet over two hundred pounds police came up they see a gun it goes out weapons in hand that young man purposely in his deposition described in this part of the record put the gun underneath the tire of the car and as he got down he said he accidentally kicked it further into the car that's some consciousness of guilt the officers are trying to assess the situation but doesn't the record show that very promptly the officers found they went to the other side of the car they found the gun found it was a toy gun not a real gun right within a minute and that correct that is correct so after that all you're talking about is the alleged shotgun that they claim to be looking for there right that and first securing the situation because people are yelling different versions of what's going on that's all they want to do is secure the area and as soon he was able to investigate and say what is going on is that truly a toy gun are there other guns who are you really could he have investigated every single apartment in the complex to secure the situation no he didn't have that option why couldn't  children in a barbecue why couldn't he go to every sing a room and say now you know i think they might have been yelling at me let's just be sure the situations you're looking at cases like goes washington v lambert terry stop and some line there is a line what it wants the line how do you how do you draw a line in situations like this you give the officer the ability to use his best judgment based on his experience based on articulable facts we articulable facts here it's not cliche that this is police safety it was dark there was no one to have guns we had and i would like to make the record clear whether we argue it was fifteen seconds thirty seconds that was probable cause report it wasn't just hey it was probable cause disappear when they found that this was a toy gun i would say that they're given some amount of time to try and ascertain what was really going on it drops from the record as submitted in the opposing brief says that the clothes did not match the questioning in the deposition that took place a couple years later to the sergeant was do you remember what clothes the gentleman had on that evening he said i don't so that doesn't necessarily pin down that the clothes were different but what you got is people with a gun the report that the make the meat of that report was we got two people with a gun they're lying in wait they're ducking in cars the police come upon them like i said we know right there was three they had probable cause ok said they did them then they find out that this is a toy gun do you agree that at that point probable cause disappears i would say maybe that reasonable says i would give them a minute or so to say all right but after that no probable cause then we're down to an investigatory detention ok and you're saying that there's this in under five a line that permits them to roust about people in the apartment in order to end quote secure the situation in quotes they and this is a key fact and we're talking our articula facts there's it in mission by one of the deponents one of the plaintiffs that she in spite of the officer when they first arrived said we need to see everybody's hands everybody freeze where you are she went back into the apartment that was commented upon by the officer in his deposition and it was commented by the appellant that is a key fact because she she went because she was afraid or what well it's the officer's perspective we need to look at him for them we've got a missing gun they're not buying that there's only two guns they don't know if this is one group moving up on another we've got people in the parking lot gathered at ten o'clock so when they see somebody move in that's a critical fact for how they are away it was the barbecue from the parking lot  the parking lot and barbecue if you if that wall was the sliding glass door of the apartment there's a little space and maybe the barbecue is about here and then the boys coming up are problems with and certainly twenty yards right yes so you know i realize we're looking at very intrusive police interference here police conduct but when w really look at those cases that outline there's cases where people have been held over an hour for an investigatory stop well it's and you can give i can give you much worse case about a case where police came up and shot a boy with a with a twenty gun brown skinned hispanic brown skinned samoan or light dark african american light or dark when you come up at night it's definitely dark skinned people you have samoan family you thi people the same thing would happen because you couldn't tell the difference between a white samoan well for a moment by i would think that if you came up in the middle of the night in a gang infested complex and it was a white person with a gun same kind of procedures that you need to secure that even though you've gotten a call that there were two blacks because you have a crime in front of a group or white you couldn't tell a difference what you have is a changing dynamic circumstance where you have people in front of you with a gun at night at ten o'clock it's not the smartest move to be in a parking lot at night be it a toy gun or not because we know that toy guns are used for robberies as well you know things that there's nothing wrong with being in the parking lot with it this is the people having a birthday party for a seven year old boy that part is fine having a gun and connect that to calls that there's an ambush going on what's a child or on a woman dress the reason a lobster would do more than assume that there's only two guns there could have been knifes there could they don't know what's going on except they have a person with a gun right in front of them it's matching up that officer deserves enough time to start thinking it through whenever you get a call that disappears with a gun that justifies your if you go down to wall street and somebody says x out of the stock exchange is a man with a pistol you could then search on the brokers who are on wall street going into work and handcuffs because you got a call at the one person with a gun if you month thing that's not a good idea if you had a group of wall street brokers who were definitely somehow being moved upon by the person with the gun and there was conversation back and when you would have a certain association of wow there's something going on the brokers over here know and the people up in the apartments they didn't handcuff people in the apartments they were focused on the connection between the folks that were yelling and screaming to one another a bottom line you think that what the sergeant did it was commendable i do your honor and i would like to point out when we look at lambert lambert makes clear when you have a sergeant in charge like that washington d lambert the other officers there reasonably relied on his direction so if there's going to be somebody held accountable that man is sergeant slosh but the other officers were simply relying on his assessment of the situation and  his direction i heard that a number guy think well it's very clear in washington d c lambert because those officers let's look at them realistically they come upon the scene and say how can i help what do i need to do well i would salvage that to some degree because i think it's clear your honor that the use of handcuffs in this i believe was reasonable how they were applied i guess that would be the answer your question if they're applied in an unreasonable manner then you would go forward with that claim to a jury for purposes of qualified immunity peal if if if part of the claim can go forward and you think part of the kind can't that the kind of qualified immunity appeal that can be taken  just part of the crime yes because i think the heart of it is that it's an immunity it's not an affirmative defense and an officer should not have to stand trial if if you  i'm going back to the appeal i couldn't name your case perceval what i can tell you is the idea is not to have the officer stand trial for something that there is an immunity and when you get into punitive damages and other aspects of measure of culpability to the damage phase that officer would be prejudiced and i think it also states like i said that the heart and soul of qualified immunity is to government officials be they police officers or anyone else active you know official capacity should not need to go through a trial if what they did was reasonable and that is a very high threshold i'd like to remind us that i think i would like to liken this case to like  it's it's much like a speeding car chase it's fluid it's changing and the courts have said there is no clear law on what you can and can't do under those circumstances you have to rely on the circumstances you're facing your experience and if i may a few minutes to give you two minutes thank you you and representing the plaintiffs i think i should start by saying that i think the district court got this one absolutely right at the end of the day the district court said there are factual disputes the preclude summary judgment and qualified immunity and as i listened as not only the summary judgment stage but also at the briefing in this court and then the argument i just heard i can't tell the exact percentage but at least half of the discussion  factual disputes in this case and i mean by that i mean i didn't say much during his presentation but as i understand the argument if you look at what happened from the perspective of the police officers they may well  reasonably but that's not what we do we have to look at this you have to take all of the disputed facts in favor of the plaintiffs and then ask whether a reasonable trier of fact could find a fourth amendment precisely and when you do that a reasonable fact finder could find a violation and that seems to me that's you know if you get into the situation where you're you're arguing the facts are disputing that judge when judge whalen said there are tribal issues of fact and say no no no he's wrong there are tribal issues a fact we don't have jurisdiction precisely and he stuck we have to look at the facts any any disputed fact we have to take a look at resolve that fact in favor of the plaintiff for purposes of making the qualified the team immunity determination which is a question of law precisely and i think  i've i didn't want to let leave that unsaid because as you know these these in iraq atory appeals come up often and especially in a case like this where it is absolutely clear that there are factual disputes police did was reasonable at least for purposes of qualified immunity a reasonable police officer would not have known that there was anything wrong with what he did just as i'm hearing well it was dark out there well know that there was light in the parking lot that's a factual dispute it was the people were having a barbecue i mean and the police helicopter was was up up top and they had radio two sergeants loss and the others that they see a family having a barbecue so they know that as they're coming up and then they come up the driveway and the first two fellows that they see are a thirteen year old in a fifteen year old and they don't have anything in their hands there's no reason th mean before they went with a gun yes that's exactly what happened so they they come up the driver the to the thirteen year old in the fifteen year old i thought there were two teams there were two teams of officers yes yes this driveway is where one team first encountered people the other was coming around the other side so they encounter the thirteen year old in the fifteen year old who have nothing in their hands who are not black males they get taken  down on the ground then they proceed a short distance and then they see the kid with the toy gun they have i have no problem with them detaining him appropriate they're investigating there's nothing wrong with that that the boy immediately within a minute they know that that toy gun that gun is a toy now what happens to the other two they get taken to a police car in handcuffs and they're put in the back of a police car in handcuffs there's no probable cause to believe they've done anything and now if we freeze it for one second because the officers freezed it at the time they they now have the boy with the gun is now on the ground they made him crawl out and they searched him and so now we know he's not armed they know that the the gun he had as a toy and now there's a the scene is frozen for a second or minute or two or whatever and now the other team is there so now we have a are fifteen's and hand guns pointed at this family from both sides and now they start this business of detaining and patting down and searching and then handcuffing twelve more people including two women and a thirteen year old girl none of these people not one of them matches the description of the suspects not one of them has done anything wrong not one of them there is is there any reasonable suspicion of criminal to the people that were having the barbecue and so on is not a terry stop is there any case law that backs that up or is there this and definite movable barrier that the officer has to determine at the time based upon the officers concerned about in quote securing the area i here's the way i analyze that your honor i don't know that there's a case that says you can extend terry beyond the  individual because it specifically talks about particularized suspicion it has to be individual suspicion you can't just say everybody in the bar is a suspect so to me the question then goes right back to terry that says what was the reasonable suspicion of criminal activity by any one of these people they i think they had a legitimate detention as to the boy with the toy gun there's no no question about that but now we have these other twelve people we have one once they discovered that they got the boy and thrown in the car was a toy gun did probable cause disappear at that point or was the fact that someone had seen someone with a shotgun that still know officers would continue to investigate but one of the questions why are these people treated like criminals rather than like the comes i mean they were just as likely victims and look at the way they treated and if safety is the issue first of all there's according to the reporting party there's two black males in that apartment complex and they're focused on these folks having a barbecue but  the once so what they do is they're not now these people aren't in a place of safety they're out in the middle because the officers making him be out in the middle of the parking lot they're walking backwards with their hands up and they're getting pa down and so the question that we the constitution applies here constitution applies just when there's a gun call what reasonable suspicion to to first detain any of these people and then the second is is there any reason to believe any one of them is armed and dangerous which is required for a pat down that's why you have the individuals vision right exactly you're saying there was no individual suspicion for any members of the barbecue party right now and the officers can't point in what they point to  we've got a bunch of people out there we want to search them off to make sure that somebody doesn't have a gun but then it's the things that to me is the maybe the most egregious violation is now they've padded these people down so they've they've they've already terrorized them with these a ar fifteen and now they're padded they patted down and they have nothing on them but then this is all undisputed facts then they go about h have now been determined to be unarmed and now they handcuff them including the pregnant woman in the thirteen year old girl and they go stick him now they're all handcuffed and they go put him at a location where they're not obviously not free to lea and right in the middle the parking lot so that the it's a continued extended unconstitutional detention and search and then we have a total of fo no he didn't go into a car but that he was the subject of an officer he told the officer i've just had back surgery you have to be careful he needed to handcuffs and they wrenches arman tears his is rotator cuff and his  his labor he's off work for seven months and has surgery and there's no reasonable suspicion that he's done anything so i think i guess at the end of the day i think that again i think judge whalen got it right  the factual disputes in this case preclude summary judgment and qualified immunity and i think i think it's pretty clear i don't think any of these constitutional violations the law that applies has been clearly established for years there really is no ambiguity at all i think it's simply a question of understanding the officers understanding the constitution still applies you've got to apply the rules and you can't you can't just search everybody it emphasized that safety was an issue regardless of just this family he's pointed out that everybody had concerns about being out in the open and so did the officers i wanted to stress also that one of the and it's in the papers it's in the record one of the persons there jr say outside is his name big men take the family tried for one to two minutes to calm him down he would not calm down that's an important factor when we look at the case law such as washington v lambert the other cases you have on cooperative suspects is sergeants law school women i got this going on i got this guy screaming and yelling i got two guns i see one the other things they didn't handcuff or touch the people who came out on the balconies but they are mindful of those he had a lot going on he took mr say out the one whose family admits was uncooperative put him in the car along with the  boys i was a little uncomfortable with the description of the officers if you look at the cat which is a very objective not absolute but give some objectivity to what was going on the first command you hear from sergeants losses contact made weapons in hand of subjects so at that point those three men in the parking lot we could take plaintiff's facts that it was one two three but the reality is there's three people he says weapons in hand is the first pronouncement and that was garrett so that person probable cause while the other three are going down the other point i wanted to make was just as i heard there were the question about could a jury find and i i don't see that is the threshold question here and in my preparation it's not in the papers but it was only in november the supreme court again commented on a pursuit kind of case and what they emphasize with respect to qualified immunity that it has to be beyond a reasonable doubt in these fluid situations beyond a doubt of debate that the officer acted you're responsible this is not a case like we see in santa ball or lambert washington v lambert where there was a total disregard of the law this was officer sergeant sloss in charge of the whole