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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

BEFORE THE HONORABLE SALLIE KIM 

ROY NELSON, III, ET AL., ) 

 ) 

 PLAINTIFFS, ) 

 ) 

 VS. ) NO. CASE NO. 16-7222 SK 

 ) 

CITY OF HAYWARD, ET AL., ) 

 ) SAN FRANCISCO, CALIFORNIA 

 DEFENDANT. ) MONDAY 

 ) FEBRUARY 25, 2019 

___________________________________) 

TRANSCRIPT OF PROCEEDINGS OF THE OFFICIAL ELECTRONIC SOUND

RECORDING 9:34 A.M. - 10:01 A.M. AND 10:29 A.M. - 10:31 A.M. 

APPEARANCES: 

FOR PLAINTIFF THE LAW OFFICES OF JOHN L. BURRIS 

AIRPORT CORPORATE CENTRE 

7677 OAKPORT STREET, SUITE 1120 

OAKLAND, CALIFORNIA 94621 

 BY: ADANTE POINTER, ESQUIRE 

 PATRICK BUELNA, ESQUIRE 

FOR DEFENDANT HAYWARD CITY ATTORNEY'S OFFICE 

777 B STREET, SUITE 4 

HAYWARD, CALIFORNIA 94541 

 BY: RAYMOND R. ROLLAN, ESQUIRE 

TRANSCRIBED BY: JOAN MARIE COLUMBINI, CSR #5435, RPR

 RETIRED OFFICIAL COURT REPORTER, USDC 

Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 1 of 26
 2

JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MONDAY, FEBRUARY 25, 2019 9:34 A.M. 

(TRANSCRIBER'S NOTE: DUE AT TIMES TO COUNSELS' FAILURE TO 

IDENTIFY THEMSELVES WHEN SPEAKING, CERTAIN SPEAKER 

ATTRIBUTIONS ARE BASED ON EDUCATED GUESS.) 

---O0O--- 

PROCEEDINGS 

THE CLERK: CALLING CRIMINAL MATTER -- SORRY -- CIVIL

MATTER 16-7222, NELSON, ET AL., VERSUS CITY OF HAYWARD. 

SO IN CRIMINAL BRAIN.

MR. POINTER: GOOD MORNING, YOUR HONOR. ADANTE

POINTER AND PATRICK BUELNA ON BEHALF OF THE PLAINTIFF IN THIS

MATTER.

THE COURT: GOOD MORNING.

MR. BUELNA: GOOD MORNING, YOUR HONOR.

THE COURT: GOOD MORNING.

MR. ROLLAN: GOOD MORNING, YOUR HONOR. RAYMOND

ROLLAN ON BEHALF OF THE CITY OF HAYWARD.

THE COURT: GOOD MORNING. 

I DON'T MIND HAVING TWO PEOPLE TALK, BUT I DON'T WANT

THEM TALKING AT THE SAME TIME. OR IF YOU WANT TO SPLIT THEM

UP, JUST LET ME KNOW. IS THAT HOW YOU'RE PLANNING TO HANDLE

IT, MR. BUELNA AND MR. POINTER?

MR. POINTER: YES, YOUR HONOR. MR. BUELNA WILL TAKE

THE LEAD HERE.

THE COURT: OKAY. THANK YOU.

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

OKAY. SO THANK YOU FOR SUBMITTING THE PAPERWORK. AS

YOU CAN SEE, I'VE HAD A CHANCE TO READ IT, AND WE'VE TABBED IT

AND LOOKED AT IT VERY CLOSELY. I JUST HAVE -- LET ME START

WITH A COUPLE OF QUESTIONS, BUT THEN I'LL LET PEOPLE SAY WHAT

THEY WANT TO SAY. I WANT TO GIVE EACH SIDE A CHANCE TO REALLY

JUST SAY WHAT YOU WANT TO SAY. BUT IF I DON'T ASK THE

QUESTIONS WHEN THEY'RE -- WHEN YOU FIRST GET UP HERE, I WON'T

REMEMBER THEM LATER ON, EVEN THOUGH I'VE GOT THEM WRITTEN DOWN.

SO, LET ME FIRST GO TO AN ISSUE -- THE ISSUE OF

CAUSATION. AND, MR. BUELNA, DO YOU AGREE THAT CAUSATION IN

THIS PARTICULAR SITUATION IS A DISPUTED ISSUE OF FACT? IN

OTHER WORDS, ARE YOU ONLY MOVING WITH REGARD TO THE ISSUE OF

THE VIOLATION OF THE FOURTH AMENDMENT, OR ARE YOU MOVING WITH

REGARD TO EVERYTHING?

MR. BUELNA: YES, YOUR HONOR, THAT'S A GOOD QUESTION

AND IMPORTANT DISTINCTION. WE AGREE THAT CAUSATION OF THE

DEATH IS A DISPUTED ISSUE OF FACT. HOWEVER, CAUSATION, AS YOU

MENTION, OF THE VIOLATION OF THE FOURTH AMENDMENT, IS AN

UNDISPUTED FACT.

THE COURT: OKAY. GREAT. OKAY. AND, MR. ROLLAN, DO

YOU AGREE WITH THAT ISSUE AS WELL, THAT CAUSATION ITSELF IS A

DISPUTED ISSUE OF FACT?

MR. ROLLAN: YES, YOUR HONOR.

THE COURT: OKAY. SO, IN OTHER WORDS, BOTH SIDES ARE

ASKING ME -- YOU'VE CROSS MOVED FOR SUMMARY JUDGMENT, BUT

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

YOU'RE REALLY ASKING FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE

OF THE FOURTH AMENDMENT VIOLATION; IS THAT CORRECT?

MR. BUELNA: THAT'S CORRECT, YOUR HONOR.

THE COURT: OKAY. ALL RIGHT. GOOD.

OKAY. SO, LET ME ASK ABOUT THIS ISSUE OF HOW TO

INTERPRET THE EVIDENCE, BECAUSE, IN THINKING ABOUT THIS CASE,

IT STRUCK ME THAT IT'S UNUSUAL FROM A LOT OF CASES WHERE YOU

HAVE TWO DIFFERENT POINTS OF VIEW. YOU HAVE EITHER ONLOOKERS

OR THE PLAINTIFF HIMSELF TELLING WHAT HAPPENED, AND THEN YOU

HAVE THE DEFENDANTS TELLING WHAT HAPPENED. HERE ALL WE HAVE IS

VIDEO EVIDENCE AND THE DEFENDANTS' VERSION OF THE STORY.

AND SO IN THIS SITUATION, IT LOOKS -- ONE PERSON

COULD SAY THE FACTS ARE UNDISPUTED IN THAT THE EVIDENCE THAT'S

SUBMITTED IS LIMITED. IN OTHER WORDS, IT'S EITHER THE VIDEO

EVIDENCE OR THE OFFICERS, WHAT THE OFFICERS SAY.

BUT, ON THE OTHER HAND, WHEN I THOUGHT ABOUT IT SOME

MORE, IT OCCURRED TO ME THAT -- AND, ACTUALLY, AFTER REVIEWING

THE VIDEOS, IT OCCURRED TO ME IN SOME WAYS IT IS DISPUTED

BECAUSE THE VIDEOS THEMSELVES DON'T ALWAYS PINPOINT THE ISSUE

THAT THE OFFICERS ARE TALKING ABOUT. IN OTHER WORDS, THE ISSUE

ABOUT HOLDING THE HOOD UP FOR MR. NELSON; YOU KNOW, WHETHER THE

OFFICER WAS DOING THAT IN SUCH A WAY THAT LET HIM BREATHE OR

WHETHER IT WAS ACTUALLY CAUSING HIM TO CHOKE. WHEN I LOOKED AT

THE VIDEOS, I COULDN'T TELL. IN OTHER WORDS, I LISTENED -- I

SAW WHAT SHE SAID ABOUT -- IT WAS -- IT WAS SHE, RIGHT?

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 4 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MR. ROLLAN: YES.

THE COURT: -- WHAT SHE SAID, THE OFFICER SAID ABOUT

LIFTING THE HOOD UP, VERSUS WHAT THE VIDEO SHOWED. AND I

THOUGHT A REASONABLE TRIER OF FACT COULD LOOK AT THE VIDEO AND

HEAR WHAT THE OFFICER SAID, BUT IT'S NOT NECESSARILY UNDISPUTED

AS TO WHAT HAPPENED IN THAT SITUATION. THAT WAS MY CONCERN

ABOUT THAT TYPE OF EVIDENTIARY CLASH. THAT'S WHAT -- AND,

MR. BUELNA, MAYBE TELL ME HOW AM I SUPPOSED TO GET AROUND THAT

ON A MOTION FOR SUMMARY JUDGMENT, OR WHETHER IT'S SOMETHING I

HAVE TO KICK TO THE JURY.

MR. BUELNA: PARTICULARLY, I GUESS, IF YOU'RE ASKING

ABOUT THIS FACT, I THINK THAT ONE OF THEM -- I MEAN, YOUR

HONOR, A SUMMARY JUDGMENT, YOU HAVE TO TAKE REASONABLE

INFERENCES FROM THE FACTS -- RIGHT -- AND IF WE'RE MOVING FOR

SUMMARY JUDGMENT, IN DEFENDANT'S FAVOR. BUT YOU DON'T HAVE TO

TAKE IMPLAUSIBLE INFERENCES.

AND IN THE CASE OF THE HOOD AND THE SWEATSHIRT, YOU

SEE DEFENDANT HALL IN THE VIDEOS PUSHING HIS HEAD DOWN. SHE

TESTIFIED AT DEPOSITION THAT SHE WAS SOMEHOW HOLDING HIS HEAD

UP BY PUSHING IT DOWN, AS WELL AS JUST MERELY HOLDING ON TO THE

SWEATSHIRT. BUT WHEN THEY FLIP HIM OVER, THE SWEATSHIRT IS SO

CAUGHT UP IN HIS NECK -- YOU CAN BARELY SEE IT -- SHE HAS TO

PULL IT OUT OF HIS NECK, AND THAT'S ON VIDEO.

AND SHE ALSO SAYS EXPLICITLY -- IT'S AN ADMISSION --

THAT HE KNOCKED OUT BECAUSE THE SWEATSHIRT WAS CHOKING HIM.

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 5 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

AND I THINK HER -- HER PULLING ON THAT SWEATSHIRT OR HOLDING

IT, EVEN, A REASONABLE OFFICER WOULD KNOW THAT THAT WOULD CAUSE

RISK THAT HE WOULD BE -- ESPECIALLY AFTER HE SAID, I CAN'T

BREATHE, THAT HE COULD BE SUFFOCATING.

THE COURT: AND SO YOUR ARGUMENT STRIKES ME AS BEING

A REASON WHY I SHOULD DENY THE DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT, BUT NOT NECESSARILY GRANT YOUR MOTION FOR SUMMARY

JUDGMENT. I MEAN, THIS IS AN UNUSUAL SITUATION WHICH BOTH

SIDES HAVE CROSS MOVED ON THIS ISSUE, BUT USUALLY -- USUALLY,

WE'RE IN A SITUATION WHERE THE DEFENDANTS ARE MOVING, AND THE

PLAINTIFFS ARE SAYING, NO, NO, SEND IT TO THE JURY.

WHAT YOU'RE TELLING ME, AND THE THING I'M STRUGGLING

WITH IS, IS THIS ACTUALLY SOMETHING THAT I CAN DECIDE AS THE

JUDGE ON A SUMMARY JUDGMENT MOTION, AS OPPOSED TO SAYING, I

AGREE THAT THERE ARE DIFFERENT INTERPRETATIONS ABOUT WHAT YOU

SEE FROM THE VIDEO AND WHAT YOU HEAR FROM THE OFFICER, AND

THEREFORE, I HAVE TO ALLOW THE JURY TO DECIDE IT, BECAUSE WHEN

I READ CASE LAW, THE CASE LAW SAYS, YOU KNOW, REASONABLENESS OF

THE OFFICER'S ACTION, AND THIS WHOLE ISSUE OF EXCESSIVE FORCE

RARELY, RARELY, WHEN THERE'S ANY KIND OF DISPUTE ABOUT WHAT

ACTUALLY HAPPENED, IT'S GOING TO BE DECIDED BY THE COURT. IN

OTHER WORDS, ONLY IF THERE'S TRULY NO DISPUTE ABOUT WHAT

HAPPENED, CAN THE JUDGE DECIDE ON A SUMMARY MOTION.

DO YOU SEE WHAT I'M SAYING?

MR. BUELNA: I DO, YOUR HONOR, AND I THINK MAYBE --

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 6 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

SO FOR SOME OF THE OFFICERS, MAYBE, I THINK IT COULD MOVE

FORWARD, OBVIOUSLY WITH DISPUTED MATERIAL FACTS. BUT I THINK

WITH DEFENDANT SHANNON, HIS VIDEO -- THE VIDEO EVIDENCE IS SO

OVERWHELMING, THAT I THINK THAT THERE IS A GOOD REASON TO MOVE

OR TO GRANT SUMMARY JUDGMENT ON HIS EXCESSIVE FORCE, BECAUSE AS

PLAINTIFF SHOWED IN STILL IMAGES AND ALSO IN THE VIDEO,

DEFENDANT SHANNON HAS BOTH OF HIS KNEES ON TOP OF MR. NELSON AS

HE'S EXPLAINING THAT HE CAN'T BREATHE. 

AND THEN EVEN AFTERWARDS, AFTER THEY NOTE HE'S

UNCONSCIOUS AND NOT BREATHING, HE ORDERS OTHER OFFICERS TO

CONTINUE TO APPLYING THE WRAP, AND HE CONTINUALLY STILL PRESSES

UPON MR. NELSON'S BACK, WHICH IS A CLEAR VIOLATION OF HIS -- OF

MR. NELSON'S FOURTH AMENDMENT RIGHTS.

AND THE VIDEO -- I THINK IT'S UNDISPUTED THAT HE'S ON

TOP OF MR. NELSON. MR. NELSON CAN'T BREATHE. THEY CONTINUED

TO USE FORCE. HE SAYS -- MICHELLE HALL, DEFENDANT HALL, SAYS,

HEY, HE DOESN'T LOOK LIKE HE'S BREATHING, OR SOMETHING TO THAT

EFFECT; HE'S UNCONSCIOUS, HEY GUYS -- AND SHANNON DIRECTLY

AFTERWARDS SAYS, CONTINUE PUTTING ON THE WRAP, AND CONTINUES TO

APPLY PRESSURE TO HIS BACK.

AND I THINK RIGHT THERE THAT'S UNDISPUTED, THAT

TRANSACTION OF EVENTS, AND I THINK THAT IS ENOUGH TO GRANT

SUMMARY JUDGMENT ON, THAT'S A VIOLATION OF EXCESSIVE FORCE --

OR VIOLATION OF THE FOURTH AMENDMENT.

THE COURT: OKAY. LET ME HEAR FROM MR. ROLLAN ON

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 7 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THAT ISSUE. THANK YOU. I'LL COME BACK TO YOU AND LET YOU SAY

WHAT YOU WANT TO SAY, COME BACK, AS WELL.

MR. ROLLAN: THANK YOU, YOUR HONOR. AND WE DO AGREE

WITH THE COURT'S ASSESSMENT THAT, BASED ON THE VIDEO EVIDENCE

AND BASED ON THE TESTIMONY OF THE OFFICERS, THAT THOSE TWO

PIECES OF EVIDENCE DON'T NECESSARILY CONTRADICT EACH OTHER, IN

THAT THE VIDEO EVIDENCE AND THE BODY CAM VIDEOS DON'T

NECESSARILY SHOW HOW MUCH PRESSURE WAS PLACED ON MR. NELSON.

TRUE, THE VIDEO SHOWS OFFICER SHANNON WAS ON TOP OF

MR. NELSON'S UPPER BACK AREA AND SHOULDER AREA, BUT THE

TESTIMONY REALLY DOES NOT -- HIS TESTIMONY THAT HE DIDN'T HAVE

HIS ENTIRE BODY WEIGHT ON MR. NELSON AT ANY GIVEN TIME, THAT

DOES NOT NECESSARILY CREATE A DISPUTE OF MATERIAL FACT.

THE COURT: HOW COULD HE NOT HAVE HIS ENTIRE BODY

WEIGHT ON HIM IF HE -- IF BOTH HIS KNEES ARE ON HIS BACK?

MR. ROLLAN: SO THE VIDEO DOESN'T CLEARLY SHOW THAT

BOTH OF HIS KNEES WERE ON -- DIRECTLY IN MR. NELSON'S BACK.

THE COURT: SO YOU DISPUTE THAT. OKAY.

MR. ROLLAN: RIGHT.

THE COURT: OKAY.

MR. ROLLAN: IN FACT, OFFICER SHANNON, IN PARTS OF

THE VIDEO, SHOWS ONLY ONE OF HIS KNEES IS ON ON MR. NELSON'S

BACK. AND HE TESTIFIED THAT EVEN WHEN HE PUT PRESSURE ON

MR. NELSON'S BACK, IT WASN'T NECESSARILY THAT HE WAS LEANING

INTO MR. NELSON ENTIRELY, THAT HE HAD -- HE WAS IN A POSTURE

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 8 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THAT ALLOWED HIM TO EASILY SHIFT HIS WEIGHT SO THAT HIS ENTIRE

BODY WEIGHT WAS NOT PLACED ON MR. NELSON.

AND SO WE JUST WANTED TO CLARIFY ALSO, IN REGARDS TO

MR. BUELNA'S STATEMENT, THAT HE INDICATED THAT OFFICER HALL

ADMITTED THAT MR. NELSON WAS CHOKED AS A RESULT OF HIS SWEATER.

THE EVIDENCE SHOWS THAT OFFICER HALL TESTIFIED THAT SHE THINKS

THE SWEATER GOT TIGHT ON HIS NECK.

I THINK THERE'S A DISTINCTION TO BE MADE BETWEEN THE

PLAINTIFF'S CHARACTERIZATION THAT MR. NELSON WAS CHOKED BY

MS. HALL -- BY OFFICER HALL'S BEHAVIOR, VERSUS JUST A MATTER OF

HAVING THE SWEATER AROUND HIS NECK GET TIGHT AND NOT BY ANY

FORCE APPLIED BY OFFICER HALL.

THE COURT: OKAY. SO WHAT DO YOU THINK ABOUT

MR. BUELNA'S ARGUMENT THAT, WITH REGARD TO OFFICER SHANNON, THE

MINUTE MR. NELSON SAYS, I CAN'T BREATHE -- AFTER MR. NELSON

SAYS, I CAN'T BREATHE AND AFTER OFFICER HALL SAYS, HE SEEMS

UNCONSCIOUS, THE DECISION TO CONTINUE APPLYING THE WRAP AND NOT

TURN MR. NELSON OVER FOR ONE MINUTE AND 20 SECONDS IS A

PROBLEM, FOR OFFICER SHANNON AT LEAST?

MR. ROLLAN: WELL, I THINK, YOUR HONOR, AS POINTED

OUT IN DEFENDANT'S MOVING PAPERS, THAT DECISION WAS REASONABLE

UNDER THE CIRCUMSTANCES BECAUSE THE OFFICERS LOOKED AT THE

TOTALITY OF THE CIRCUMSTANCES.

MR. NELSON REFUSED TO COMPLY WITH THE OFFICERS ORDERS

NOT TO KICK THE CAR, AND THEN WHEN HE GOT ON THE GROUND, HE WAS

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 9 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

TENSING AND MOVING HIS BODY SO THAT OFFICERS AT THE BOTTOM HAD

A HARD TIME APPLYING THE ANKLE -- A WRAP RESTRAINT.

SO OFFICER SHANNON'S DECISION TO ORDER THE OTHER

OFFICERS TO COMPLETE THE LOWER PORTION OF THE WRAP DEVICE WAS

REALLY MEANT TO ADDRESS ANY OFFICER SAFETY CONCERNS THAT

MR. NELSON MAY HAVE PRESENTED TO THE OFFICERS. 

ANOTHER FACTOR THAT CONTRIBUTED TO THAT WAS THAT

MR. NELSON WAS 6 FEET 6-2, AND HIS WEIGHT WAS 320 POUNDS,

BIGGER THAN ANY OF THE OTHER OFFICERS ON SCENE. 

SO CONCERNING THE TOTALITY OF THOSE CIRCUMSTANCES

MR.-- OFFICER SHANNON'S DIRECTION TO FULLY APPLY THE LEG AND

THE ANKLE RESTRAINT BEFORE TURNING MR. NELSON OVER WAS

REASONABLE BECAUSE HE WAS CONCERNED THAT MR. NELSON MIGHT HAVE

JUST BEEN BAITING THEM BY FAKING TO BE UNCONSCIOUS.

THE COURT: SO I FIND IT VERY, VERY DIFFICULT TO

BELIEVE THAT ANY JUROR ANYWHERE IS GOING TO FIND OFFICER

SHANNON NOT LIABLE FOR A VIOLATION OF FOURTH AMENDMENT RIGHTS

UNDER THESE SET OF CIRCUMSTANCES. MY ONLY QUESTION IS, IS THAT

THE STANDARD I APPLY ON SUMMARY JUDGMENT, OR DO I -- DO I HAVE

TO SEND THAT TO THE JURY?

I JUST CANNOT IMAGINE A JUROR IN THIS COUNTRY SAYING,

AFTER A PERSON SAYS HE CAN'T BREATHE AND AFTER ANOTHER OFFICER

NOTES THAT MR. NELSON IS UNCONSCIOUS, TO WAIT A MINUTE AND 20

SECONDS IS APPROPRIATE WITHOUT SOME KIND OF INTERVENING

MEASURE, CHECKING HIS PULSE, CHECKING TO SEE WHETHER HE HAS

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 10 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

AIRWAY BREATHING CAPACITY. I JUST FIND THAT IMPOSSIBLE TO

BELIEVE.

I THINK WHAT I'M STRUGGLING WITH IS, IS IT JUST -- IS

THAT THE TEST FOR SUMMARY JUDGMENT? DO I SAY THERE'S NO WAY

ANY JUROR IN THIS COUNTRY COULD FIND FOR OFFICER SHANNON ON

THOSE UNDISPUTED FACTS, THOSE UNDISPUTED FACTS, OR DO I SAY, I

HAVE TO SEND THIS TO THE JURY UNDER THOSE CIRCUMSTANCES.

MR. ROLLAN: WELL, YOUR HONOR, I THINK AT THE VERY

BASELINE, PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION AS TO

OFFICER SHANNON SHOULD BE DENIED, AND THAT SHOULD -- THIS ISSUE

SHOULD GO TO THE JURY, BECAUSE IF THEY BELIEVE OFFICER

SHANNON'S TESTIMONY THAT HE GENUINELY BELIEVED THAT HE HAD

OFFICER SAFETY CONCERNS OR THAT HIS -- YOU KNOW, HE DIDN'T

REALLY PUT HIS ENTIRE BODY WEIGHT ON MR. NELSON, THOSE ARE ALL

ISSUES THAT A JURY SHOULD CONSIDER IN EVALUATING WHETHER OR NOT

THE FORCE HE EMPLOYED WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

I DON'T THINK IT'S FAIR TO NECESSARILY SUMMARILY SAY

THAT, JUST AS A MATTER OF LAW, THAT OFFICER SHANNON'S BEHAVIOR

WAS EXCESSIVE AND UNCONSTITUTIONAL. I THINK THAT, AT THE VERY

LEAST, SHOULD BE AN ISSUE THAT SHOULD BE PLACED BEFORE A JURY.

THE COURT: OKAY. SO DO EITHER THE PLAINTIFF OR

DEFENDANT HAVE ANY EXPERT WITNESS ON THE STANDARD OF CARE IN

THIS SITUATION? I DON'T REMEMBER SEEING ANYTHING LIKE THAT IN

THE RECORD, BUT MAYBE YOU HAVE AND IT JUST WASN'T PRESENTED TO

ME.

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 11 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MR. BUELNA: WE DO, BUT I DON'T THINK WE REALLY

INCLUDED TOO MUCH EXPERT TESTIMONY. I THINK -- AT LEAST FROM

THE PLAINTIFF'S -- AS FAR AS STANDARD OF CARE --

THE COURT: YOU HAVE THE CAUSATION EXPERT.

MR. BUELNA: YES, YES.

THE COURT: ON CAUSE OF DEATH. I UNDERSTAND.

MR. BUELNA: WE ALSO HAVE A POLICE PRACTICES EXPERT

AND --

THE COURT: OKAY.

MR. BUELNA: -- AND SO DOES THE DEFENDANT.

THE COURT: OKAY.

MR. BUELNA: BUT I DON'T THINK -- I THINK I JUST WANT

TO ADDRESS A COUPLE OF POINTS THAT COUNSEL BROUGHT UP.

THE COURT: SURE.

MR. BUELNA: ONE, I WANT TO INCLUDE THIS. ONE, WHEN

DEFENDANT SHANNON INSTRUCTED THEM TO FINISH PUTTING ON THE LEG

WRAP AFTER HE'S BEEN NOTIFIED THAT MR. NELSON HAS GONE

UNCONSCIOUS -- HE'S HOBBLED AT THE ANKLES AND HE'S HANDCUFFED,

SO ME -- THERE'S NOT EVEN A CREATIVE -- TO ME, I CAN'T EVEN

THINK OF A CREATIVE RISK TO THE OFFICERS THAT COULD BE POSSIBLE

AT THAT MOMENT. 

AND, ALSO, HIS ACTING SERGEANT TESTIFIED AT

DEPOSITION UNDER SWORN TESTIMONY THAT OFFICERS ARE TRAINED THAT

WHEN THEY HEAR A MEDICAL DISTRESS FROM A PERSON, THEY'RE

SUPPOSED TO STOP APPLYING THE WRAP AND BEGIN ADDRESSING THAT

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 12 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MEDICAL DISTRESS.

AND SO I WOULD ALSO CONSIDER --

THE COURT: WHICH DEPOSITION IS THAT?

MR. BUELNA: THAT'S OFFICER MCCREA. THAT'S IN

PLAINTIFF'S EXHIBIT 3.

THE COURT: OKAY.

MR. BUELNA: AND IF YOU WANT, I HAVE THE PAGE AND

LINE NUMBER.

THE COURT: OKAY.

MR. BUELNA: PAGE 69, LINE 21, THROUGH PAGE 70, LINE

7.

THE COURT: OKAY.

MR. BUELNA: THAT'S THE ACTING SERGEANT ON SCENE.

I WOULD ALSO NOTE THAT PLAINTIFF DID INCLUDE A STILL

SHOT OF MR. SHANNON'S KNEES, BOTH OF HIS KNEES, ON HIS BACK,

AND THAT WAS EXHIBIT 12.

THE COURT: I THINK WHAT MR. ROLLAN WAS SAYING IS

WHEN YOU WATCH THE VIDEO, IT'S NOT CLEAR THAT THE OFFICER IS ON

MR. NELSON'S BACK WITH HIS KNEES THE ENTIRE TIME. I MEAN,

THERE MIGHT BE PARTS, AND YOU COULD STILL GET A STILL

PHOTOGRAPH, I UNDERSTAND, BUT I'M NOT -- I'M GOING TO GO BACK

AND LOOK AT IT AGAIN TO SEE, BECAUSE WHEN I LOOKED AT THE

VIDEO, I THOUGHT, YOU KNOW, IT DIDN'T SOLVE ALL THEIR PROBLEMS

THAT WE THOUGHT OFFICER CAM (PHONETIC) THOUGHT IT WAS GOING TO

SOLVE, BECAUSE YOU CAN'T SEE EVERYTHING CLEARLY THE ENTIRE

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Case 3:16-cv-07222-SK Document 101 Filed 04/04/19 Page 13 of 26
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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

TIME.

MR. BUELNA: YOU ARE RIGHT, YOUR HONOR. AND THAT'S

WHY I -- YOU KNOW, PLAINTIFF PUT IN THE MULTIPLE BODY CAMERAS

AND TRIED TO SYNCHRONIZE THEM FOR THE COURT, BECAUSE I THINK

WHEN YOU LOOK AT THEM IN TOTALITY, IT'S CLEAR THAT AN

OBJECTIVE -- AN OBJECTIVELY REASONABLE OFFICER WOULD HAVE

ADDRESSED MR. NELSON'S MEDICAL SITUATION AND WOULD NOT HAVE

CONTINUED TO COMPRESS MR. NELSON'S BACK IN ANY WAY, SHAPE, OR

FORM, AND KNOWING THAT THEY'RE ALL TRAINED -- AND EVEN

DEFENDANT SHANNON IS TRAINED THAT -- THAT A PERSON THAT'S PRONE

ON THEIR BACK WITH PRESSURE UPON THEM, CAUSES RESPIRATORY

DISTRESS. AND I WOULD ALSO NOTE THAT THE OFFICERS ARE TRAINED

THAT THIS IS AN EVEN HIGHER RISK WITH A PERSON THAT'S OBESE.

AND ALL OF THE OFFICERS -- AND I THINK IT'S AN UNDISPUTED

FACT -- NOTE THAT MR. NELSON WAS OBESE.

AND I JUST WANT TO ADDRESS A COUPLE OF OTHER THINGS

AT THE FOREFRONT OF THE DETENTION, WHICH IS MR. NELSON IS NOT

WANTED FOR A CRIME. THIS IS A CALL FOR MEDICAL DISTRESS. AND

WHEN THEY'RE TAKING HIM INTO CUSTODY, DEFENDANT'S PAPERS NOTED

THAT HE WAS DETERMINED TO BE GRAVELY DISABLED, A DANGER TO

HIMSELF AND A DANGER TO OTHERS. THAT'S NOT TRUE.

MICHELLE HALL TESTIFIED THAT SHE DETERMINED HE WAS A

DANGER TO HIMSELF AND GRAVELY DISABLED, AND SO THAT'S A

MISREPRESENTATION OF THE RECORD.

ESSENTIALLY, OFFICERS ARE THERE JUST TO ACCOMMODATE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

HIM TO A PSYCHIATRIC HOSPITAL. THIS IS NOT A SITUATION WHERE

THEY'RE TRULY SCARED, WHICH WAS, YOU KNOW, SHOWN BY THE FACT

THEY DIDN'T EVEN HANDCUFF HIM. AND WHEN HE GETS OUT, HIS

RESISTANCE IS NOT -- I DON'T EVEN WANT TO CALL IT RESISTANCE.

EITHER ON HIS BACK, HE CAN'T BREATHE. HE ROLLS TO HIS SIDE

BECAUSE HE CAN'T BREATHE. THEY ROLL HIM BACK OVER. AND ANY, I

THINK, MOVEMENT AND TENSING UP IS BECAUSE HE CAN'T BREATHE. I

MEAN, HUMANS CAN'T JUST LAY LIMP AS THEY'RE BEING CRUSHED TO

DEATH.

AND, SO, HONESTLY, I'M STRUCK BY HOW COOPERATIVE AND

COMPLIANT HE WAS, GIVEN THE NUMBER OF CASES I'VE SEEN. AND TO

ME, IT'S DISTRESSING TO WATCH THE VIDEO. I THINK ANY

REASONABLE OFFICER WOULD HAVE INTERVENED.

THE COURT: OKAY. SO, MR. ROLLAN, I'M GOING TO LET

YOU WRAP UP, THEN I'LL LET MR. BUELNA WRAP UP AS WELL.

MR. ROLLAN: SURE. AS -- AS WE INDICATED IN OUR

MOVING PAPERS, YOUR HONOR, WE BELIEVE THE OFFICER'S ACTIONS IN

THIS CASE IN DEALING WITH MR. NELSON WAS REASONABLE UNDER THE

CIRCUMSTANCES.

FIRST, WE'D LIKE TO ADDRESS THE ARGUMENT THAT

PLAINTIFF JUST BROUGHT UP, THAT MR. NELSON WAS NOT WANTED FOR

ANY CRIME. TRUE, THAT WAS INITIALLY THE CASE WHEN THE 5150

CALL WAS PLACED FOR THE CALL FOR SERVICE. HOWEVER, WHEN THEY

WERE AT THE (INDISCERNIBLE) COURT LOCATION AND THERE WAS A

PARAMEDICS-PLUS DELAY, MR. NELSON DID START KICKING THE INSIDE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

OF OFFICER HALL'S VEHICLE MULTIPLE TIMES DESPITE THE OFFICER'S

REPEATED ORDERS TO STOP. AND THAT'S THE REASON WHY THEY DECIDE

TO RELOCATE TO CHABOT COLLEGE PARKING LOT, TO HAVE THE

POSSIBILITY OF APPLYING THE WRAP DEVICE IN A MORE OPEN AREA.

ONCE THEY WERE AT CHABOT COLLEGE PARKING LOT,

MR. NELSON AGAIN KICKED THE INSIDE OF OFFICER HALL'S VEHICLE

THREE TIMES. AND OFFICER MCCREA ORDERED HIM TO STOP, AND IT'S

CLEARLY SHOWN IN THE BODY CAM VIDEOS, AND MR. NELSON KICKED

AGAIN THREE TIMES IN DISOBEYANCE OF OFFICER MCCREA'S ORDERS.

AND SO THE OFFICERS RESPONDED TO MR. NELSON'S

BEHAVIOR AND NOT NECESSARILY WHETHER OR NOT HE WAS WANTED FOR

ANY CRIME AT THE VERY BEGINNING OF THE INCIDENT, BUT IT EVOLVED

INTO ONE WHERE MR. NELSON DID EXHIBIT THAT TYPE OF BEHAVIOR

WHICH NECESSITATED THE OFFICER'S USE OF THE WRAP DEVICE.

THE COURT: AND I'M LESS CONCERNED, MR. ROLLAN, ABOUT

THE FACT THAT THE OFFICERS WANTED TO GET HIM UNDER CONTROL.

I'M MORE CONCERNED ABOUT WHAT HAPPENED ONCE THE OFFICERS WERE

APPLYING THE WRAP DEVICE AND WHAT THEY DID. I THINK THAT'S

WHAT THIS CASE IS REALLY GOING TO BE HINGING ON.

MR. ROLLAN: RIGHT.

THE COURT: I UNDERSTAND THE TOTALITY OF THE

CIRCUMSTANCES IS IMPORTANT, AND, BELIEVE ME, NONE OF THOSE

FACTS ESCAPE ME. I'M AWARE OF THAT.

MR. ROLLAN: AND SO WHEN REVIEWING THE BODY CAM

VIDEO, THE ENTIRE INTERACTION OF HAVING MR. NELSON GET ON THE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

GROUND AND HAVING HIM TURN OVER WAS REALLY FOUR AND A HALF,

MINUTES, RIGHT?

AND SO WHEN MR. NELSON GOT ON THE GROUND, HE REFUSED

TO PRESENT HIS BODY IN A WAY THAT ALLOWED THE OFFICERS TO

EASILY APPLY THE WRAP DEVICE. IN FACT, ALTHOUGH PLAINTIFF

DISPUTES THE CHARACTERIZATION OF MR. NELSON AS BEING RESISTANT,

ALL THE OFFICERS IN THIS CASE TESTIFIED THAT MR. NELSON WAS

OFFERING SOME FORM OF RESISTANCE IN THAT HE WAS TENSING HIS

BODY. HE WAS NOT ALLOWED EVEN TO MOVE HIS LEGS, AND THAT MADE

IT DIFFICULT FOR THEM TO APPLY THE LEG AND THE ANKLE PORTION OF

THE WRAP DEVICE QUICKLY.

SO OFFICER HALL AND SHANNON, WHO WERE BOTH AT THE TOP

OF MR. NELSON, APPLIED THE PRESSURE THAT THEY THOUGHT WAS

REASONABLE IN ORDER TO NOT ALLOW MR. NELSON TO MOVE DURING THE

APPLICATION OF THE LEG PORTION OF THE WRAP DEVICE.

AND SO I THINK, WHEN LOOKING AT THIS WHOLE SNAPSHOT,

THIS FOUR AND A HALF MINUTES OF THE INCIDENT, I THINK THE

OFFICERS RESPONDED TO MR. NELSON'S PHYSICAL MANIFESTATIONS, HIS

BEHAVIORS. DESPITE THE FACT HE MAY HAVE SAID HE COULDN'T

BREATHE, HE WAS STILL MOVING HIS BODY AFTER THAT, AND HE WAS

NOT PRESENTING HIS BODY IN A WAY THAT ALLOWED THE OFFICERS TO

QUICKLY APPLY THE WRAP.

AND SO TO THAT END, THE OFFICERS SIMPLY RESPONDED TO

MR. NELSON'S PHYSICAL BEHAVIORS, AND, ULTIMATELY, HE BECAME

UNCONSCIOUS, AND RIGHT AWAY OFFICER SHANNON CALLED FOR THE CODE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THREE EMERGENCY MEDICAL RESPONSE AND TURNED HIM OVER ONCE THE

LEG PORTION OF THE WRAP DEVICE WAS COMPLETED.

THE COURT: I THINK THE CONCERN THAT THE

PLAINTIFFS -- I CAN SEE MR. BUELNA -- I CAN SEE THE THOUGHT

BLOWING UP IN HIS HEAD RIGHT AWAY, IT WAS NOT ONE MINUTE AND 20

SECONDS LATER, AND I THINK THAT'S WHAT THIS CASE IS GOING TO

HINGE ON, ULTIMATELY, SO -- BUT THANK YOU.

MR. BUELNA, I STOLE YOUR THUNDER.

MR. BUELNA: THANK YOU. I THINK YOU HIT THE NAIL ON

THE HEAD, YOUR HONOR.

I THINK YOU TAKE ALL THAT AND WE STOP AT WHEN THE

ANKLE HOBBLE WAS APPLIED, HE'S HANDCUFFED. MICHELLE HALL NOTES

THAT HE'S UNCONSCIOUS, CAN'T TELL IF HE'S BREATHING.

OFFICER -- OFFICER SHANNON DID CALL CODE THREE, BUT THEN

CONTINUED TO APPLY PRESSURE TO HIS BACK, ORDERED THE LEG

PORTION -- SO HE'S ALREADY GOT THE ANKLE ON -- ORDERED THE LEG

PORTION OF THE WRAP TO BE APPLIED WHEN HE'S NOT EVEN MOVING AND

HE'S CLEARLY UNCONSCIOUS. BY THE TIME THEY FLIP HIM OVER,

THERE'S BLOOD OOZING FROM HIS FACE.

SO I THINK THAT UNDER THE FOURTH AMENDMENT -- AND

THIS IS -- THE STANDARD IS NO REASONABLE -- IT'S NOT EVEN JUST

ANY JUROR AROUND THE COUNTRY, BUT NO REASONABLE JUROR COULD

FIND FOR DEFENDANT SHANNON IN THIS CASE. AND I THINK THAT'S

THE STANDARD THAT SHOULD BE USED, AND IF WE USE THAT STANDARD,

I THINK THE COURT IS -- HAS TO FIND FOR PLAINTIFF ON THE

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

EXCESSIVE FORCE CLAIM AGAINST DEFENDANT SHANNON.

AND, ALSO, I THINK, TOO, THE ADA, TOO, ALSO COMES

INTO PLAY, BECAUSE HE'S A PARANOID SCHIZOPHRENIC. IT'S

UNDISPUTED. HE WAS -- THEY OWED HIM A REASONABLE ACCOMMODATION

FOR THAT DISABILITY, AND PART OF THAT IS UNDERSTANDING THAT

MENTALLY ILL PEOPLE DON'T RESPOND THE SAME WAY AS OTHER PEOPLE.

THE COURT: WHAT WAS THE ACCOMMODATION THEY OWED HIM?

MR. BUELNA: KIND OF THE SAME FOURTH AMENDMENT

ACCOMMODATION THEY OWED HIM WHICH IS, TOO, IF HE'S EXPRESSING

ING MEDICAL DISTRESS, THEY SHOULD ALLEVIATE THAT IN THAT ANY

SORT OF RESTRAINED -- ANY SORT OF A RESISTANCE THAT COULD BE

INTERPRETED AS RESISTANCE MAY NOT ACTUALLY BE HIM RESISTING,

BUT AS A RESULT OF HIS MEDICAL CONDITION.

THE COURT: OKAY.

SO LET ME TELL YOU WHAT I'M THINKING ABOUT THIS.

THIS IS GOING TO TRIAL NO MATTER WHAT, BECAUSE AT LEAST ON

CAUSATION IT'S DISPUTED. I'M REALLY STRUGGLING WITH THIS IDEA

ABOUT HOW I HANDLE WHAT I THINK ABOUT A JUROR AND WHAT I THINK

THEY WOULD DO, AND ESPECIALLY GIVEN WHAT THE NINTH CIRCUIT SAID

ABOUT THE FACT THAT REASONABLENESS UNDER EXCESSIVE FORCE IS NOT

SOMETHING THE COURT CAN EASILY DECIDE. I'M LEANING TOWARDS

SENDING THIS TO TRIAL TO THE JURORS, BUT I'M NOT A HUNDRED

PERCENT SURE.

I'M GOING TO GO BACK AND LOOK AT EVERYTHING, AND I

WILL -- I THINK I'M GOING TO THINK ABOUT THIS MINUTE BY MINUTE,

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

BECAUSE I THINK YOU HAVE TO TAKE THIS CASE LITERALLY MINUTE BY

MINUTE AND GO BACK AND TAKE ANOTHER LOOK AT EVERYTHING AGAIN. 

BUT THAT'S WHAT I'M LEANING TOWARDS, JUST TO LET YOU

KNOW.

SO I DO UNDERSTAND WE HAVE A CASE MANAGEMENT

CONFERENCE. LET'S HANDLE THAT NOW BECAUSE, MR. ROLLAN, I

UNDERSTAND YOU'RE LEAVING, AND YOU'RE ASKING FOR A CONTINUANCE

AND THE PLAINTIFFS ARE OBJECTING TO THAT.

MR. ROLLAN: YES, YOUR HONOR. SO I RECENTLY GOT AN

OFFER FOR EMPLOYMENT ON JANUARY 31ST, AND I NOTIFIED MY

SUPERVISOR, MIKE LAWSON, ON FEBRUARY 1ST THAT I WAS DEPARTING.

SHORTLY THEREAFTER I CALLED PATRICK BUELNA TO ASK FOR

A STIPULATION TO MODIFY THE SCHEDULING ORDER AND CONTINUE THE

TRIAL DATE, WHICH IS CURRENTLY SET FOR JUNE 4TH, 2019. 

IN OUR MOVING PAPERS, DEFENDANTS POINTED OUT THIS IS

SIMPLY NOT ENOUGH TIME FOR NEW COUNSEL TO GET UP TO SPEED ON

THIS MATTER, WHICH HAS BEEN LITIGATED FOR ABOUT THREE YEARS

NOW, AND THE AMOUNT OF INFORMATION AND DEPOSITIONS AND

DISCOVERY THAT'S BEEN PRODUCED IN THIS CASE -- I THINK WE HAVE

A MARCH 15, 2019, OBLIGATION UNDER THE CURRENT SCHEDULING TO

PROVIDE -- I THINK IT'S THE MEET AND CONFER ABOUT TRIAL ISSUES.

AND SO I THINK THAT'S JUST NOT ENOUGH TIME FOR NEW COUNSEL TO

GET ACCLIMATED TO THIS CASE. AND THAT'S -- FOR THOSE REASONS,

WE BELIEVE THAT A CONTINUANCE OF THE TRIAL DATE SHOULD BE

GRANTED.

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THE COURT: AND WHAT IS THE DATE THAT YOU RECOMMEND

OR THAT YOU'RE ASKING FOR, BECAUSE I'M NOT SURE THAT I'M GOING

TO GIVE YOU ANY --

MR. ROLLAN: RIGHT. IN OUR JOINT CASE MANAGEMENT

STATEMENT PLAINTIFFS DID AGREE -- OF COURSE, THEY OBJECTED TO

THE CONTINUANCE ALTOGETHER BUT PLAINTIFFS DID AGREE THAT A

NOVEMBER 4, 2019, TRIAL DATE WOULD BE ACCEPTABLE, OR, IN THE

ALTERNATIVE, MARCH OF 2020 -- OR MARCH -- YEAH.

THE COURT: MELINDA, AM I AVAILABLE IN NOVEMBER THAT

FIRST WEEK?

THE CLERK: WE'RE ON CRIMINAL DUTY.

THE COURT: I DON'T WANT TO WAIT UNTIL MARCH 2020.

ARE THOSE THE ONLY DATES THAT YOU WOULD BE AVAILABLE FOR TRIAL?

MR. BUELNA: JUST TO NOTE THAT THE PLAINTIFF'S MOTHER

IN THIS CASE IS ELDERLY, AND SHE'S BEEN WAITING FOR YEARS NOW

FOR HER DAY IN COURT, AS WELL AS THE SON WHO WANTS TO HOLD

ACCOUNTABLE AND TO HAVE HIS DAY IN COURT. I JUST WANT TO NOTE

FOR THE COURT THAT HE GOES TO COLLEGE IN THE VERY PARKING LOT

WHERE HIS FATHER WAS KILLED, AND SO HE DESERVES HIS DAY IN

COURT. 

AND TO PUT IT OFF AGAIN -- MR. LAWSON WAS AN ATTORNEY

ON RECORD THE ENTIRE TIME. HE ATTENDED BOTH OF THE SETTLEMENT

CONFERENCES AND PARTICIPATED. AND SO I REALLY -- PLAINTIFF

VEHEMENTLY OBJECTS TO MOVING THE DATE, BUT IF THE COURT IS SO

INCLINED, OBVIOUSLY, WE WILL ACCOMMODATE THAT.

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THE COURT: I'M WILLING TO GIVE A VERY SHORT

CONTINUANCE, BUT I WOULDN'T PUT IT TO MARCH 2020. I THINK

THAT'S REALLY UNFAIR TO THE PLAINTIFFS, AND I CAN'T DO IT IN

NOVEMBER OF 2019 BECAUSE I'M ON CRIMINAL DUTY. SO HERE'S WHAT

I WOULD SUGGEST: 

I CAN GIVE YOU DIFFERENT DATES IN JULY, AUGUST,

SEPTEMBER, AND OCTOBER, AND WE CAN SIT HERE AND GO THROUGH THEM

AND SEE IF YOU'RE AVAILABLE. I AM WILLING TO GIVE A SHORT

CONTINUANCE TO THE DEFENDANTS, BUT I'M NOT -- I'M NOT GOING TO

MOVE IT PAST -- IT'S GOING TO TAKE PLACE IN 2019. LET'S PUT IT

THAT WAY.

MR. ROLLAN: AND I THINK, YOUR HONOR, JUST FOR THE

RECORD, ANOTHER ISSUE REGARDING THIS TRIAL IS THE DISPOSITION

OF THE 14TH AMENDMENT CLAIM, WHICH SHOULD BE ADDRESSED -- YOU

KNOW, WOULD BE ADDRESSED IN THE ORDER IN THE SUMMARY JUDGMENT

MOTION. THAT IS THE ONLY CLAIM THAT PLAINTIFF'S MOTHER REALLY

HAS IN THIS CASE, AND IF THE COURT DISPOSES OF THAT CAUSE OF

ACTION IN ITS ORDER, THEN THAT IS ANOTHER PROCEDURAL ASPECT

THAT, YOU KNOW, SHOULD BE CONSIDERED.

THE COURT: I UNDERSTAND. BUT AS A PRACTICAL MATTER,

I THINK THE FAMILY HAS BEEN WAITING -- WHETHER THEY'RE

PLAINTIFFS OR NOT --

MR. ROLLAN: SURE.

THE COURT: JUST AS MATTER OF THE WAY WE LIKE TO RUN

OUR COURT SYSTEM, IS THAT WE LIKE TO TAKE INTO CONSIDERATION

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THE CONCERNS OF FAMILY MEMBERS OF WHEN SOMEONE HAS DIED, AND WE

NEED TO GET SOME CLOSURE FOR THEM AS WELL, WHETHER THEY'RE

FORMALLY PLAINTIFFS OR NOT.

SO HERE'S WHAT I'M GOING TO RECOMMEND. CAN YOU GO

INTO THE HALLWAY AND LOOK AT ANY DATES BETWEEN JULY, AUGUST,

SEPTEMBER, OCTOBER, AND I'LL CALL YOU BACK TO SEE WHETHER OR

NOT THERE ARE ANY DATES IN 2019, EVEN DECEMBER OF 2019, THAT

YOU CAN ACTUALLY SET A NEW TRIAL DATE. AND THEN I'LL LOOK AT

MY CALENDAR AS WELL. IT'S THE KIND OF THING I DON'T WANT TO

FORCE EVERYONE TO LISTEN TO WHILE WE'RE GOING THROUGH IT. BUT

IT'S NOT GOING TO BE 2020.

MR. BUELNA: THANK YOU, YOUR HONOR.

MR. ROLLAN: THANKS, YOUR HONOR.

THE COURT: OKAY. WE WILL PASS YOU AND COME BACK ON

THE CASE MANAGEMENT ISSUE.

(RECESS TAKEN FROM 10:01 A.M. UNTIL 10:29 A.M.)

THE CLERK: RECALLING CIVIL MATTER 16-7222, NELSON

VERSUS CITY OF HAYWARD.

MR. ROLLAN: GOOD MORNING AGAIN, YOUR HONOR.

SO THE PARTIES HAVE MET AND CONFERRED AND IDENTIFIED

OCTOBER 21ST --

THE COURT: OKAY.

MR. ROLLAN: -- AS A PLAUSIBLE --

THE COURT: MELINDA, AM I AVAILABLE THAT WEEK?

THE CLERK: LET'S SEE.

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

THE COURT: AND I START TRIALS ON TUESDAY, BECAUSE I

HAVE LAW AND MOTION ON MONDAY, BY THE WAY, SO IT WOULD BE --

THE CLERK: SO THE 22ND WE HAVE ONE TRIAL SCHEDULED

RIGHT NOW.

THE COURT: LET ME SEE. WHICH ONE IS IT?

THE CLERK: @@NIGROW VERSUS AHERN RENTALS.

THE COURT: OKAY. THAT WILL BE (INDISCERNIBLE).

I WILL PUT YOU ON OCTOBER 22ND, AND I'LL PUT YOU

FIRST PRIORITY.

MR. ROLLAN: GREAT.

THE COURT: I HAVE ANOTHER MATTER ON THAT DAY, BUT I

THINK IT'S GOING AWAY.

AND WE HAVE SEVEN DAYS, RIGHT?

MR. ROLLAN: YES.

THE COURT: ALL RIGHT. SO WHAT I'M GOING TO DO THEN

IS I WILL ISSUE A NEW ORDER TO YOU FOLKS WITH NEW BRIEFING

DATES FOR THE MEET AND CONFER, AND THEN MOTIONS IN LIMINE, AND

THE PRETRIAL CONFERENCE. AND SO -- BUT, BASICALLY, YOU KNOW MY

SCHEDULE. IT'S A MONTH BEFORE IS A PRETRIAL CONFERENCE. A FEW

WEEKS BEFORE IS WHEN YOU SUBMIT THE MILS, AND THEN EVERYTHING

GETS BACKED UP FROM THERE.

BUT, OTHERWISE, THEN I'LL WORK ON THE SUMMARY

JUDGMENT ORDER. WE ARE GOING TO TRIAL ANYWAY. ONE WAY OR

ANOTHER WE'RE GOING TO GO TRIAL. IT'S JUST A QUESTION OF HOW

MUCH IS GOING TO GO TO TRIAL. OKAY?

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

MR. ROLLAN: GREAT.

THE COURT: ANYTHING ELSE WE NEED TO TALK ABOUT THIS

CASE ON CASE MANAGEMENT ISSUES OR ANYTHING?

MR. BUELNA: NO.

MR. ROLLAN: I DON'T THINK SO, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU FOR MEETING AND

CONFERRING. I REALLY APPRECIATE THE COOPERATION.

MR. BUELNA: THANK YOU, YOUR HONOR.

MR. ROLLAN: THANK YOU, YOUR HONOR.

THE COURT: MR. ROLLAN, GOOD LUCK.

MR. ROLLAN: THANK YOU.

(PROCEEDINGS ADJOURNED AT 10:30 A.M.) 

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JOAN MARIE COLUMBINI, CSR, RPR

RETIRED OFFICIAL COURT REPORTER, USDC

510-367-3043

CERTIFICATE OF TRANSCRIBER

 

 I CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT 

TRANSCRIPT, TO THE BEST OF MY ABILITY, OF THE ABOVE PAGES OF 

THE OFFICIAL ELECTRONIC SOUND RECORDING PROVIDED TO ME BY THE 

U.S. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, OF THE 

PROCEEDINGS TAKEN ON THE DATE AND TIME PREVIOUSLY STATED IN THE 

ABOVE MATTER. 

 I FURTHER CERTIFY THAT I AM NEITHER COUNSEL FOR, 

RELATED TO, NOR EMPLOYED BY ANY OF THE PARTIES TO THE ACTION IN 

WHICH THIS HEARING WAS TAKEN; AND, FURTHER, THAT I AM NOT 

FINANCIALLY NOR OTHERWISE INTERESTED IN THE OUTCOME OF THE 

ACTION. 

 

JOAN MARIE COLUMBINI 

APRIL 4, 2019 

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