This Guy Beat Qualified Immunity Twice, in Two Different Circuits

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:42 Thomas: Welcome to Opening Arguments. This is episode 1304. I'm Thomas, that over there is Jenessa. How's it going? No

0:00:47 Jenessa: Pretty good, a little busy, but

0:00:49 Thomas: I something going on, who's

0:00:51 Jenessa: Yeah, yeah, election coming up, so we're doing good stuff. We're we're really, uh, working hard to make sure things are accessible and, uh, open to everybody and run smoothly, so I'm excited. Good stuff. Yeah.

0:01:07 Thomas: Uh, who's running? You got an election, so I know anyone in it or mayor

0:01:10 Jenessa: Yeah, you know, it's just a couple of, you know Just just Like, you know, more than half the state offices and like all the House of Representatives at the federal level. No big deal. It's

0:01:13 Thomas: Or What? Hmm. So I guess I should probably make sure I'm registered to vote, right?

0:01:26 Jenessa: So, um, definitely check your registration, make sure it's correct and up to date and everything. Um, send you over the links for, um, on mail-in ballots and early voting requirements. Uh, thing, if you go to the National Conference of State Legislatures, just a really great resource. Pick a legal issue, they have the comparative legal analysis of, like, what every state is doing with a state law issue. So here's the rules for mail-in ballots for every state: what are the deadlines, who's eligible, how do you apply. And another one from them for what are rules for early voting for every state: who's eligible, when do you do it, where do you do it.

They're just great, and they keep it up to date. The of those are updated last August of this year and September of this years, so they're right on point with any changes that have happened. You, articles can always end up out of date so quickly, but these guys keep that up to day, so really great database base. Um, make sure if you are doing a mail-in or absentee, um, of all know the deadlines, but I'm going to strongly recommend that people just mail things way before the deadlines, because hearing more and more about, like, not even necessarily nefarious, just delays in the mail because they're

0:02:47 Jenessa: Underfunded. They're trying, like, cost saving measures where it's like, oh, everything to a central distribution. So I'm mailing something from my town to the neighboring town, and it's like, send it to, you other city first where they have the centralized distribution center. Like, why?

0:02:47 Thomas: I'll Tell you why. It's because we want to pay pay one penny per year less in taxes. And, worth having terrible services for everybody for that one penny that we'll never freaking notice.

0:03:11 Jenessa: Yeah, And then eventually you get so frustrated because the postal service is getting worse and worse that we just privatize. And then everybody has to use FedEx to mail a letter, which is so cheap and available. And really annoying. In most states, you will be able to pick up that ballot in person instead of waiting for it in the mail. You'll probably have to designate that you're planning to do that. You might be ableto designate an alternate individual to pick it up for you.

0:03:26 Thomas: Oh, yeah.

0:03:46 Jenessa: Can probably, again, depends on your state, you may be able to drop it off at a polling place, your board of elections, a ballot drop box, which is not the same as a mailbox. On what the rules are for that, because if you're worried about it being late in the mail, you could just pick it up and drop it in person instead. Then same thing with early voting. Why wait till election day, and then there's a problem and you can't get to of the polls.

If your state has early voting, like go early. And I was about to say early and often that like stupid joke. Not often, once. Go early vote and what the dates and the times are. You New York, we have to make this as complicated as possible where of New York City, you can go any early voting polling place within your county, but each one will be open different hours every day.

This one might be open from nine to five on Monday and the other one's open from 10 to eight on Monday. And a mess. So, look it up before you go. Make sure, you know, the dates and times will be really, really helpful to you.

0:03:45 Thomas: Oh nice. And I know, Jenessa, every time we come on here, we harp on voting and all that. But hey, guess what, everybody? If you just do it, if you get it done, we'll Never Talk About It Again for another year or whatever, and pizza party, if if we take Congress. Pizza party. You kind of a two-tiered reward system. Reward number one: Jenessa will stop telling us to register to vote and all that crap. Reward number two: pizza party. Got it? All right.

0:05:18 Jenessa: Not. It's no five thousand dollars, but, you you know, it's my reward to you.

0:05:21 Thomas: I've finally given people the stakes they need in order to vote. It's

0:05:27 Jenessa: Oh, God, please, for the love of God, everybody. It's looking good. Please, please be part of that happening.

0:05:34 Thomas: Looking good. All right, but what are we going to be talking about today for reals? Crazy.

0:05:34 Jenessa: Okay. Not that. Last week, we talked about Rosales v. Lewis, which was plaintiff Mario Rosales pulled over in a rather uneventful traffic stop, except for the part where it was determined to be probably not justified, and then also, why did you drag it out for 20 minutes and pat me down and make me get out of the car? And so in the Fifth Circuit they did not grant qualified immunity to those police officers, and it's gonna go to trial or be settled, uh, a Fourth Amendment violation. So that's pretty cool. Uh, we heard about in the traffic stop was that he was suing another officer and

0:06:07 Thomas: Yeah.

0:06:20 Thomas: Caught on a hot mic of a body cam, basically, which is pretty crazy. So the same guy, and I made the joke that this is like more rare than being struck by lightning twice, the same guy has been able to kind of get around qualified immunity in two different circuits. That's crazy. All

0:06:26 Jenessa: So I had to go look that up. Um, Yeah.

0:06:41 Jenessa: So one we talked about happened in Louisiana, which is the Fifth Circuit circuit. This case, which preceded that, Rosales v. Bradshaw, is in the 10th Circuit, New Mexico. Uh, in both cases the police officer was not granted qualified immunity, and I naturally had to go check this one out. Um, stop is a lot worse, um, gets like shot or anything, so that's good, but, um, pretty bad, and gives us some really interesting insights into how the 10th Circuit is thinking about qualified immunity and to file these lawsuits, and a really interesting concurrence about an alternative perspective on this. There's a lot going on in here and a lot to learn.

0:07:31 Thomas: Right. Well, I'm just amazed that this guy, this is a record that will, will not be bested anytime soon.

0:07:34 Jenessa: Know. Probably not.

0:07:36 Thomas: I don't think. Um, Right, well, uh, it sounds like a lot of fun, I guess. We'll take our break, and then we'll get to another instance in which the cops possibly are losing, which is, I mean, we need it, you know, we need this, we all, we all deserve it. Yeah.

0:07:37 Jenessa: Take A win. Yes.

0:07:51 Thomas: Can't wait. All right, hey, support the show, patreon.com/law, get rid of the ads, get the goodies. We'll tak break and be right back. Okay.

0:08:01 Thomas: Well, I mean, I guess I don't have to get to know know the guy again, and can remind us, I guess, but yeah. Possible.

0:08:05 Jenessa: We met Our plaintiff Mario Rosales. Um, the time of this incident he's living in New Mexico, and I'll give you, uh, first just the fact pattern here. So he's driving along, uh, in mind, we are at the stage where the defendants, the police officers, want to dismiss, so we are going to take these facts in the light most favorable to Rosales. We are presuming, unless we have anything either not plausible or demonstrably false, we're going to assume what he's telling us is true. So driving home, he decides to pass a pickup truck, already right off the bat they're going say we construe everything in the the light most favorable to him, we presume he legally passed him. The pickup belonged to brad shaw an off -duty out of uniform sheriff's deputy. So first thing that's going to be important here, um, doesn't become an issue in this case, but just to make it clear for us, um, because somebody's a cop doesn't automatically make everything a constitutional violation. Um, what we're going to see this officer do is use his power as a police officer to call in his license plate.

He'll identify himself as an officer during this altercation. That's enough to be acting under color of law. So possible for him, even though he's mostly acting as a private individual, to abuse his authority and act under color. So that's going to be important. Important.

0:09:40 Jenessa: Yeah, one might think. Um, it's not gonna like this guy more as I keep going. Um, okay.

0:09:38 Thomas: And likely

0:09:46 Jenessa: In response to being legally passed, and with his child in the front passenger seat, Bradshaw decided to follow Rozales. Having noticed that he was being followed by an unmarked pickup truck, Rozales made a series of turns without signaling to confirm that he's being being followed. So

0:09:45 Thomas: Which feel like there ought to be a legal, you, that should be allowed, you know, and

0:10:10 Jenessa: And they will pretty much say that that the light most favorable to the plaintiff, that illegal, but it's a reasonable thing for a person to do, so would justify a stop, it would testify pulling you over if they were a cop and if he put the lights on or whatever, but, um, could probably get yourself out of the ticket, for example. That feels reasonable, right? The pickup keeps following him. He was following Rosales. Bradshaw called a fellow sheriff's deputy, asked her to run Rosales' plate. Based on the check, the deputy informed Bradshaw Rosales appeared to be heading home. So apparently really fast check to be like, "That's his address, he's heading towards his address." Bradshaw says to the deputy he does not want her to go to his location, but the deputy ignored that instruction, quote, "because she knew Bradshaw had a volatile temper." So that's quoting her, like...

0:11:10 Thomas: You know, we just let these people be police officers. Well, We know we can't trust this guy to be like in the the same space as another person of color, so, you know, I went and babysat him, right?

0:11:13 Jenessa: What the hell? Yeah.

0:11:25 Jenessa: Like, how can that be okay? Um, what it's worth, a woman on the force being like, don't let that man be alone, I'm gonna go follow him. Um, Deputy therefore proceeded to Rizal's residence based on her quote gut feeling about Bradshaw's volatility, so she knows something bad is gonna happen and is like, I I need to get over there ASAP. When arrived at his residence, he parks in the driveway driveway. Essentially, at this point, Bradshaw gets out of the car, blocks the driveway with his own pickup, and Rosales is a legal gun owner. He has, you know, all the permits or whatever you gotta do.

0:11:32 Thomas: Right, yeah. Okay.

0:12:05 Thomas: So he didn't get the gun from the last week's episode as a result of this? Sounds like he Okay, he already was a, yeah.

0:12:09 Jenessa: No, no, he was already a gun owner, so takes his gun, he puts it in in his pants pocket, openly displaying the weapon as he exits the vehicle. Know, from his perspective, he just got followed by some stranger. He has no idea this is a cop.

0:12:25 Thomas: Scary also.

0:12:26 Jenessa: Bradshaw is yelling and cursing at him. Scary. Rosales attempted to speak reasonably with Bradshaw, but Bradshaw kept yelling. So, not great. Bradshaw comments on the gun. Rosales says, this is an open carry state. I'm exercising my rights, I'm on my private property. He's in his driveway, his own driveway. He's keeping his hands clear of the firearm. Yeah.

0:12:30 Thomas: Scary. I Didn't know that that's open carry if you're on in your driveway, right? Yeah.

0:12:55 Jenessa: I don't actually know how those laws work like I really know about, yeah, versus concealed is like, some states you have to be concealed because it's like scary to people if they see a gun.

0:12:57 Thomas: Not important, but like, yeah.

0:13:06 Jenessa: And then other states it has to be open, like, like, you can't hide that you have a gun. I don't know. It's just, why are we doing any of this? I don't know. But that's how, apparently, this is an open carry state. You have to be, like, showing it open. I have it right here. You can see that I am armed. Starts to walk a little closer, trying to talk in a normal tone of voice, like not shouting at each other. At this point, Bradshaw identifies himself as a law enforcement officer, threatens him with reckless driving citations, says he's contacted another officer at, pulls out his gun and points it at Rosales. So

0:13:05 Thomas: Yeah. You know, it seems Like a crime. Pretty sure that's a crime. Oh,

0:13:48 Jenessa: Wind blows Rosales his shirt over his firearm, at which point Bradshaw yells, now that's concealed carry, and purposefully raised his gun at Rosales in a manner that made him fear he was about to be shot. Yeah.

0:13:56 Thomas: Come on, you That's concealed carry, therefore I'm putting a gun on you? How does that, I

0:14:07 Jenessa: I think it'd be the opposite.

0:14:09 Thomas: Didn't think it was, like, concealed carry means you're shot on sight. Like, I doubt that's what the law is. Yeah.

0:14:15 Jenessa: So much the law, not really how that works. So puts his hands in the air, he's backing up. I mean, yeah, you just pulled out a gun. He then notices the child in the passenger seat, like, never forget. Bradshaw's Kid is just here for this, um, is trying to reason with him and tells Rosales to put his gun back in the vehicle, and Rosales complies. Like, at this point, this is a law enforcement officer, it's not just some guy. Um, this point Bradshaw exits his pickup truck, so I guess he was just yelling out the window this whole time. I don't know what the hell is going on.

0:14:27 Thomas: Sure.

0:14:41 Thomas: Yeah, and

0:14:49 Jenessa: I Yeah.

0:14:49 Thomas: Pointed his gun out of out the

0:14:50 Jenessa: Dude I don' know, he's wearing a long-sleeve t-shirt, shorts, and flip-flops, none of which display the sheriff's office insignia. Just just so we're clear.

0:14:50 Thomas: Window. Huh? Yeah. It would Be funny if the flip-flops did, though. I got my sheriff's flip-clops on. You can see it's got, like, a badge on them, you know. They have those, uh, for the Crocs. Um, I wear Crocs to hockey. They're the perfect going-to-hockey, uh, shoe. You, they're both breathable and would probably protect you if someone were to, you know, step on your foot with a, with a blade or anything. Uh, my kids also like them. I don't know if it's because I weren't, they're still the age that they like things that their parents do. Yeah.

0:15:24 Jenessa: Anything Dad does.

0:15:26 Thomas: And So we eventually got, uh, Phoebe some Crocs, and they have those little, um, like, medallion-y things you can put in them now for kids. Yeah. So I'm picturing

0:15:26 Jenessa: Yeah. Oh, Yeah, defeat the purpose of the holes.

0:15:34 Thomas: Yeah Yeah, well, I mean, it gives a little decoration. You don't have to fill them all, but I am now picturing, uh, sheriff's version of that, you know. He's got a little, he's gotta, the little badge one.

0:15:39 Jenessa: Yeah sheriff Crux.

0:15:45 Thomas: Yeah, got one with a little gun. You know, something like that, I think. It'd be great. It would make me like this asshole more, which most things would, because I don't like him. Yeah, nice.

0:15:48 Jenessa: Oh, My We're not far away from that, to be honest. Um, bar's low. Yeah. Um, continues speaking over Rosales, asked for his license sends, asks if he has been drinking. Rosales says that he doesn't drink. Fellow deputy arrives and says to Bradshaw, you can leave. Nobody gives him a citation. What was the basis? Bradshaw's employment was terminated as a result of this incident.

0:16:21 Thomas: Holy shit, wait, what state are we in? I Cool, good job, well done. I don't think it's like amazing, but yeah.

0:16:22 Jenessa: Yup. We're in New Mexico. I don't know what the political situation is there. It's like, it's Not, not like the bluest state, right? I fired and charged and convicted of aggravated assault and child endangerment.

0:16:33 Thomas: It's a red state, but The kid being involved probably makes that, you know, a little more resonant to the, to people. I just am just so surprised that cops being punished for, you know, anything. And I imagine it was like his ninth offense, right? You got it. If this, if this other female officer already knows this reputation, like, I'm sure this is not a first-time offender. Yeah.

0:16:45 Jenessa: I I know. Probably Which probably made it more reasonable to be like, I'm not surprised they charged this person.

0:17:06 Thomas: Ninth strike and you're out, man. We didn't mind when you heard the first few citizens you beat up, but this is, uh, it's too much.

0:17:15 Jenessa: And they quote in here that he had a history of abusive behavior as an officer. Um, didn't get a chance to look into this, but he'd been forced out of his prior employment within law enforcement, so it's like the priest thing. We're just moving them to different precincts until something terrible happens. One

0:17:30 Thomas: Yep. Feel like that should be disqualifying, that get more than one of that as a priest or a cop, by the way. It's pretty amazing that they're like, all right, well, well, we know you're supposed to be like the voice of God and everything. You [bleep] kid. All right, fine. You know, go over here and be the voice. Of God. Weird to me. I don't understand.

0:17:33 Jenessa: Would think. Yep. Yeah. Like How Weird, right? Yeah, strange here. The, like, explosive temper is known, and yet, uh, is going to be our other defendant here. This is the, uh, sheriff, I don't know what you call them, the person who hired him and trained him, basically. Um, know this. You know, he was fired before. You know, his history provided no special training or supervision. So violating my constitutional rights because you knew or should have known this kind of thing was gonna happen and you didn't do anything about it.

0:18:02 Thomas: Oh, there's another defendant? Oh, okay.

0:18:21 Thomas: That's a hell of a case when one of the other officers did literally know that it was going to happen. It makes your case a bit easier to prove. Oh, There's no way I could. Really? Was she psychic or something?

0:18:26 Jenessa: Yeah. Yeah. How do you defend yourself against this? I mean, come on. Unfortunately, we are going to end up with just legal screw up here. Don't know if he had different attorneys at the trial court versus on this appeal. Unclear to me.

But what's going going to happen with Snyder, um, are going to have a back and forth where obviously everybody's going to move for qualified immunity, of course, for the individual capacity claims. There are also official capacity claims, we'll come back to this in a second, but basically Snyder says, I'm not the sheriff anymore, they had quit apparently, so you need to substitute as a proper party if you're You're suing the official capacity. You're not really suing me. You're in the county or whatever.

Need to substitute in the board of county commissioners of Chavez County, not me, for the official part, the individual capacity part. Like, obviously, I'm still me. Right. The process of there's this oral agreement in the courtroom of like, fine, dismiss what we currently have against Snyder with leave to amend. So not dismiss with prejudice. And then there's going to be a whole thing where the judge writes up an order that does dismiss everything against Snyder

0:18:34 Thomas: Exactly. Oh, what What?

0:19:49 Jenessa: With prejudice and attorney sees it and signs it and doesn't see that it's wrong and doesn't dispute it, and yeah, I know. I

0:19:50 Thomas: Come on, no. What? Okay. This, this poor guy, like, can't catch up. The people in positions of power and authority are failing this guy left and right. It's like, come on, can't you trust anyone who's supposed to be an authority on anything to treat you well? Yeah.

0:20:06 Jenessa: Yeah. Yeah. Have cases on point for we signed it as to form, we thought it represented the oral agreement. And, like, I kind of don't blame the judge, that circuit court, for being like, I mean, it's on you, man. You can't just sign papers without reading them. You do have to know dismiss with prejudice versus without, like, your lawyer should at least know what that is. So, So, I mean, there's arguably a malpractice claim here for that screw up.

0:20:40 Thomas: I would hope so. Oh yeah, brutal.

0:20:42 Jenessa: Expect my clients to understand that. I would expect me to understand.

0:20:47 Jenessa: I don't know exactly how this oversight happened. I don'T know if he has the same attorneys at both levels. I DON'T know. I DON't know what happened. But essentially, Snyder's going to get out of it. And because that's dismissed, what can you do? But Bradshaw is still here. The officer who was actually the one who assaulted him, right?

0:21:02 Thomas: Sure. Yeah.

0:21:08 Jenessa: So we've said before, you have to sue in the individual capacity if you're in federal court. Because when you sue a state official in their official capacity, that's suing the state. And you can't sue the state in federal Court. You sue the individual, you go after their bank account, not like the tax and finance department, essentially. And that have to be acting under color of law in order to commit a civil rights violation, but, oh, how is it fair? The state told me to do this, I was doing my job, how can you come after my personal bank account? It's the state's fault. That's why qualified immunity exists, the logic behind it, right? You could go after them in their official capacity. You want to because, first, don't have to deal with that immunity issue, that's what the immunity exists for, that other reason, and also, like, you could win a bazillion dollars from a random individual, you're just going to garnish their wages the rest of their life. Like, you're never getting that. You you win it against the state or the county or whatever, you're going to be way better off.

0:22:05 Thomas: Yeah. They'll pay you most likely. Yeah, yeah.

0:22:16 Jenessa: Right. You're almost certainly getting that amount sooner rather than later, which if you have like injuries or lost wages because of PTSD or whatever like you need that money now. You can do official capacity, it's good. And is tough about that, if they were state official, you can't do that in federal court. If they're a municipality, really in federal court, you're supposed to go after the municipality, not the individual. The state level, states often immunize themselves. They give themselves state sovereignty.

So you can see the state and state court either. But they will waive that immunity for a lot of things, the same way the federal government has waived their own immunities. A lot of states offer governmental immunity to municipalities. So normal rule is municipalities don't have sovereign immunity, but they're like, we're going to by statute give you something like it. Oh, you also can't sue the county government unless. New Mexico has that.

You can't sue county governments, but they have a written exception that you can sue their law enforcement officers for this and this and this, including assault, battery, and false imprisonment, and the whole nine yards. The other hand, they did really great lawyering here. They sued both of them in their individual capacity. So you're going to have to show the constitutional violation acted under color of law, not it is a clearly established violation.

So you overcome qualified immunity and sued them in their official capacity in state court, which you can do. New Mexico state court explicitly you to sue them as officers. So he does that. And then what happened is Snyder, smart procedural move, removes it to federal court. Thing, even Rosales filed this in federal court, maybe there would have been a problem with naming them in their official capacity.

If the defendant removes it to federal court, that's their choice. They can't then say, oh, you don't have jurisdiction over me and my official, you got to dismiss. Well, then why did you ask to be here? So

0:24:35 Jenessa: Smart move. You don't often see the individual sued in their official capacity in the federal court. They managed to pull that off. Um, good way to do it. It's going going to set you up to be in a much better position.

0:24:34 Thomas: Makes sense. So You don't know if this is the same dingus that signed the wrong thing? Yeah.

0:24:52 Jenessa: I think it has to be because this is where you filed for the trial court level. So

0:24:56 Thomas: It's kind of funny. You know, sometimes in hockey we have a goalie that, like, they make the weirdest, amazing saves, but then miss the most easy, boneheaded-looking one, you know, and you're like, huh. I guess it all evens out if you're like, sometimes they miss, like, the easiest shot, you're like, "All right, weird that you could do, like, the acrobatic ones but you can't do the basic ones." It's kind of kind of like that. He's like, "Look, I'm great at the more strategic, uh, interesting stuff. I just don't like details. I just don't, like, signing and reading." Yeah.

0:25:09 Jenessa: Yeah.

0:25:28 Jenessa: Got to get in the zone, I guess, when it's really down to the wire. I don't know, I happens, mistakes happen, but um, this part's really smart, um, jurisdictional thing. You can bring these in state court, no reason you can't, and then hope the other guy removes it to federal court now that you got everything you needed out of that. Um, would have been fine to do it in state courts, but you know, federal court judges are just like, tend to to be a lot more experienced, um, with these qualified immunity issues. So Okay, Snyder's out, Bradshaw is in and is going to try to get qualified immunity, and the district court, they're going to give it to him because they're gonna say it's not clearly established that behavior was excessive with an armed defendant. We don't have a case on point that says that already.

0:26:24 Thomas: It just shows the arbitrariness of this bullshit. I know we've talked about a million times, but I didn't even think about the fact that you can also gerrymander it and be like, "And and he was wearing a red hat, and we don't, I have no, I don't think there's a case about a guy wearing a red hat," you know? So how are we supposed to know?

0:26:27 Jenessa: Know.

0:26:41 Jenessa: Doesn't make any sense. They actually quote here for the clearly established part, like, does it mean to be clearly established, and they'll tell us, you know, the general test, the way it's usually phrased as clearly established right is one that is sufficiently clear that every reasonable officer would have understood that what he is doing violates that right. Sounds kind of reasonable, rephrased qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Exactly.

0:27:05 Thomas: Yeah. Now here's, what's interesting. Uh, again, that female officer knew something was up. So did she know? It's not impossible to know that's, you Know, like something bad's going to happen.

0:27:17 Jenessa: Right. Might think that, uh, it's it's clear here. So interesting is they are going to first do the constitutional violation and then get to clearly established, which I know we've said a lot of times they tell you to skip that and just go straight to the clearly established. We're finding more and more, yeah, these circuit courts are like, "Whatever, I'm gonna I'm gonna say what I want to say." Yeah.

0:27:45 Thomas: That's interesting, that's good, right? Right? Isn't that? Yeah. I wonder I wonder Why they started doing that, maybe it got unpopular enough. Okay.

0:27:47 Jenessa: Oh yeah, because we'd rather they say out loud. Know, this is 2023, so it's not like that's before the Pearson ruling controlling where they were saying that. So guess they're just going out of their way to say it. Yeah, like, maybe they're not required to find it first, but they're choosing to. I feel like the Supreme Court is gonna say that's dicta because you're supposed to do the other step first. I don't know, it's unclear to me, but at least within their own circuit they're controlling how they do it. And and they're saying, we're going to first establish a constitutional violation happened. The constitutional violation, we are going to use these Graham factors. This is the test that you're going want to use for an unreasonable seizure or for an officer's excessive use of force, basically. Was their force reasonable? So, here's how we tell. Well, the crime severity, the potential threat posed by the suspect to the officer and others' safety, and the suspect's attempts to resist or evade arrest. Those are the things that can go towards whether or not it was justifiable to use whatever force.

0:28:19 Thomas: Oh.

0:29:05 Thomas: See, he attempted to resist arrest by not committing any crime whatsoever. You, so when you think about it.

0:29:09 Jenessa: Yeah. And that's basically what we're going to say here. The first and third factors are not meaningfully disputed, and they both favor Rosales. So the crime, the absolute worst case scenario is he does admit, unlike the passing where we're taking him at his word that it was legal, he does submit openly. He took turns without signaling, and he could have been suspected of failure to use his signals. Like, you're not going to be able to not admit that part. Um

0:29:40 Thomas: An off-duty cop is gonna be like, "Son of a bitch, didn't signal, you know, get into overtime," like, like that, you would never not be doing your job then, like, you literally couldn't drive as an off-duty cop then, and know what, the minute they start doing this with those bright-ass headlights instead of turn signals, I'm I back.

0:29:54 Jenessa: I watch people not signal all the time, and it drives me insane, but shit. Yes.

0:30:03 Thomas: The blue, I'm back, you know, vote, vote Trump. No, I'm just kidding. Cool.

0:30:08 Jenessa: Oh man. Okay, worst thing he could possibly have suspected Rozales of committing is a petty steady misdemeanor, failing to signal, or I guess you could raise it to the level of reckless driving. That does not bring us to the level of force where you follow him home and pull a gun and scream at him. Doesn't attempt to resist arrest or flee. He stands there and talks to you. As soon as you identify yourself as an officer, he just complies with every command. Like, So those Those two factors totally weigh in his favor. That use of force is not appropriate for a petty misdemeanor or for somebody who's absolutely not resisting arrest. The second factor, whether they posed an immediate threat, that is obviously the most important. If they start threatening you, it's a different story. These factors, we have more factors. Factors upon factors. What makes somebody a threat? The Larson factors.

0:30:21 Thomas: Yeah, sure. Yeah. I Just realized in both your expertises you do factor analysis.

0:31:08 Jenessa: Yeah, huh. Huh, that's so funny. I never really thought about that. Yeah, so not the

0:31:13 Thomas: Very stupid. Thanks for humoring me with that, appreciate it. Yeah. So

0:31:17 Jenessa: Statistical test, the legal test of factor, analyzing of factors, not a factor analysis. The Larson factors, which tell us whether somebody is a threat under the second Gram factor: uh, one, whether the officer uh a suspect to drop a weapon and their compliance; number two, hostile movements made with the weapon towards the officer; number three, the distance separating the officer and the suspect, so obviously if you're like a mile apart, it's just not reasonable to feel threatened; and the manifest intentions of the suspect suspect. So think they mean like the hippie version of manifest.

0:31:55 Thomas: He was like manifesting, like, ah, I want, I hope this guy gets hurt. Positive thinking here we go. It's Like, ah, we we've uncovered a vision board, and, uh, he had all kinds of magazine cutouts that indicate he wished you harm. He was manifesting it.

0:32:15 Jenessa: But think it's not that. I'm pretty sure. Um, also have one now. This is interesting. So you got those four factors, regardless of those they're going to analyze the extent to which an officer's reckless conduct prior to the use of force during the seizure provoked the suspect's actions. Yeah.

0:32:17 Thomas: Okay. Well, agree to disagree. Yeah.

0:32:37 Thomas: I like that one because you could just be a total asshole, provoke someone into the slightest look of danger to you, and then all of a sudden you get to do whatever you want, and

0:32:38 Jenessa: Super important, right? Right. So maybe that's going to work in your criminal trial as a self-defense argument. It is not going to work to defend yourself against a Fourth Amendment violation that provoke the whole situation situation, and then the person makes one wrong move and you shoot them. Like, come on. No, is all 10th Circuit citations, so I don't know the extent to which they're going to pull that up on opinions of other circuits are persuasive at least on one another. So interesting. Okay, those Larson factors, um, only one that really favors Bradshaw is like, they weren't far apart. He was definitely a distance where he could have shot him hypothetically. Cool.

0:33:30 Thomas: That's the judge trying to do, like, you know, if I'm gonna give feedback, I gotta start with positives. Well, he he was close-ish to you, um, end of list. I got nothing else, everything, that's the end of the good news. Well

0:33:39 Jenessa: Sandwich. That's Yeah. Pretty much. Um, the one hand, yeah, he was close. On the other hand, he clearly followed all of your orders, he made no hostile motions, he never even touched the damn thing. Um, is interesting, they cite to a case, Saint George v. City of Lakewood in 2021. They found that a plaintiff exited his house at the request of individuals he reasonably doubted were law enforcement officers and was carrying a gun in the low ready position to protect himself himself as he walked around his house late at night to see who it was that wanted him to come outside and talk.

They found that was not an immediate threat to the officers. He didn't know they were officers, he wouldn't point the gun at them. He had it... I can visualize what "low ready position" probably means. It's the middle of the night, they haven't identified themselves, so cool. They have a case on point for that one. That guy is not an immediate threat, Rosales is also not an intermediate threat. His arms are up in the air. Distinguishing possession of a weapon and hostile movements with a weapon, those are not the same thing.

Rosales' manifest intentions were to protect himself and his home. He was de-escalating. He wasn't trying to kill somebody. No real basis for this. So all working for him, three of four Larson factors strongly support the conclusion Rosales did not pose an immediate threat to Bradshaw. Quite the opposite, right? Bradshaw is the threat here, and

0:34:23 Thomas: Yeah, no effing kidding. Yeah. Sense. Yeah.

0:35:16 Thomas: Yeah.

0:35:17 Jenessa: Balance of those factors should be enough for the Graham factor. They say, "We're going to do that last analysis." Bradshaw's own reckless and deliberate conduct is what caused all of this. So Rosales would not have taken turns without signaling unless you were not tailing him. You blocked the driveway and were yelling at him. Of course he armed himself in response to that, like, is kind of your fault. Um,

0:35:47 Thomas: In fact, we're gonna give you a ticket for his lack of turn signal just because, like, you did it. His

0:35:53 Jenessa: Mean, yeah. Yeah. As Rosales puts it, a reasonable, quote, officer in Bradshaw's shoes, or rather his flip-flops, would have understood. Rosales had a perfectly reasonable explanation for possessing a firearm. That quote is, like, Rosales' brief said Bradshaw shoes or rather has flip-flops. Um, do get to be a little sassy sometimes in your own brief. Um, Even if him openly displaying a weapon suggested an immediate threat, it's undercut by Bradshaw's own reckless and deliberate creation of a threat. So just no to all of this. Just to be thorough, we're going to address Bradshaw's counter arguments now. This is where it gets rough for... be fair, you make the best argument you got, I guess. But they point out Bradshaw's argument is basically Rosales posed an immediate threat because he was, quote, "an armed and approaching citizen," end quote. Okay.

0:36:03 Thomas: Crocs, Crocs, yeah, that's Awesome, yeah. He was approaching because, um, relativity dictates that, you know, like if I'm moving toward him, it's actually the same shame.

0:37:03 Jenessa: Okay, yeah. Assertion is flawed in at least two respects. First, it is wholly untethered from the Larson factors that guide our immediate threat inquiry. You have to actually look at the rule. This is why it's so important to have an attorney and a trained attorney. It, oh, that sounds like a perfectly good argument. He's an immediate threat because he's armed and approaching citizen, but that's not what the law is. You have to actually look at the rules, and this is why these briefs are huge, is recite the rule word for word with a citation, you cite what those words all mean, and then you repeat it again with factor one is this. We don't meet that because. Factor two is this, we don't need that because, like you you have to do that. You can't just say stuff and then ask the judge to infer what you probably meant. If you're unrepresented, they will do some of that for you. For pro se litigants, people with no attorney, the judge may help you along.

I've seen it before where they explicitly write out like, okay, here's the argument they made. The most charitable, it seems like they're kind of arguing this, which would apply to this factor of this test, and like they will help you out. If you have an attorney, uh, need to apply the actual law. They can't just make arguments that sound good. You have to tether it to the actual rules. Yeah, sorry, um, to everything he's saying, the focus on the fact that Rosales has a gun ignores other critical allegations. He kept his hands clear of the firearm. Your own conduct precipitated his decision to have a gun. So none of this is gonna work. You, uh, acting extremely recklessly. Um, cite to a really interesting case, Holland x rel. L. Overdorf v. Harrington, another 10th Circuit, the officers executing a search warrant held various family members, including children, at gunpoint.

0:39:08 Thomas: Yikes.

0:39:09 Jenessa: Stated that continuing to hold the children directly at gunpoint after the officers had gained complete control of the situation could constitute a Fourth Amendment violation.

0:39:19 Thomas: Hold on. Hold on. Were they being little shits though? You gotta, you gotta look at all the facts.

0:39:25 Jenessa: They said it could constitute Fourth Amendment violation, so Rosales brought this up in his brief because Bradshaw, uh, against it contends, by contrast, no constitutional violation here, he only briefly pointed his gun at Rosales. And they say the Holland case, "our holding of a constitutional violation was not turning exclusively on the length of time a gun was pointed." Uh, the point is it was somebody who was not a threat to you and you are now a threat to them, and just

0:39:29 Thomas: I could kind of point a gun at him a little bit, right?

0:40:00 Jenessa: A second.

0:40:00 Thomas: God, will you guys let me do anything?

0:40:02 Jenessa: No, no, is the answer. Is such a finding precluded by the fact that Rosales is not a child? Sure, pointing a firearm at a child calls for even greater sensitivity, but like, the holding is not limited to kids. It was still about pointing a gun at somebody who's not hurting you. Like, no, no, you suck. No. Now we just have to get to clearly established. Okay. Clearly this violates the Fourth Amendment, but did you know that? Should you have known that? Whatever. Is, I... out what attorneys should be doing, because yes, if there was a case on point that was identical or nearly identical, going to use that, right? You already found a constitutional violation in Smith v. Doe, done. Like, the same thing is here. They knew or should have known. They point out that don't have to have that.

0:40:10 Thomas: Wait, since when?

0:40:58 Jenessa: Here we go. So, the rare obvious case where the unlawfulness of the officer's conduct is sufficiently clear, even though existing precedent does not address similar circumstances.

0:41:09 Thomas: Man, that's the whole thing that we always thought it should be. What are you talking about? Okay.

0:41:15 Jenessa: V. Orem City, 2021, citation.

0:41:18 Thomas: Just undo the whole qualified immunity bullshit just by reading the law as what it should already be, which I do support, but like, what I feel like that so many of the cases where we're like, "How could this have been qualified immunity?" For sure this same thing would apply, right? Yes.

0:41:37 Jenessa: And, like, I'm wondering how much of this, it could be a couple of things. One could be the Supreme Court is just so goddamn bad on this that we're getting very reasonable stuff out of the circuits, and then it gets to the Supreme Court and they're like, well, you know what, if, maybe the possibility is we just keep seeing these cases where it's the one hand it's extremely violent, but on the other hand those are the ones where everybody gets so sympathetic to, like, well, how could he, have the officer feared for his life, and

0:41:49 Thomas: And So we're not seeing these ones all the time, you're saying. Yeah, makes sense. Yeah.

0:42:14 Jenessa: We're getting away from these officers in these two cases obviously did not reasonably fear for their lives. So judges act like normal people and, like, have their head on straight?

0:42:28 Thomas: Probably right. I almost would hope that it would be some sort... because there was a pretty big backlash to this for a minute. I almost hope that it could be like, like, a, oh, maybe we went too far with this, because that might be maybe better in the long run, but you know, either way. Yeah.

0:42:33 Jenessa: Mm-hmm. Was 2023. I don't see an appeal of this up to the Supreme Court. So maybe this one was just left to lie. I mean, God, it's such bad facts for the officer. They say here, some things are so obviously unlawful, they don't require detailed explanation. Sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing. Citation, citation, citation.

0:42:46 Thomas: Yeah. Yeah, nice.

0:43:07 Thomas: Boy, isn't that a great point that everyone against qualified immunity has made a hundred million times?

0:43:12 Jenessa: Yeah, I really love this quote: "It would be remarkable if the most obviously unconstitutional conduct should be the most immune from liability only because it is unlawful that few dare its attempt." Citation again, all 10th Circuit.

0:43:12 Thomas: Okay.

0:43:31 Thomas: Awesome. Honestly, most of what Trump has done has fallen under that loophole though, like we didn't think anyone would ever do. Okay, God. So, but you know, this is, I love these, these woke-ass judges. I'm loving this. I

0:43:44 Jenessa: And I mean, the 10th circuit is like, it's it covers the Southwest. It's not, like, the most liberal or the most conservative.

0:43:50 Thomas: Know it's not. I was joking. I think it's, yeah, it's likely that that this kind of case, it seems like we got some good, some good judgment ship here.

0:43:57 Jenessa: For real. Um, got cases about obviously egregious behavior that should be good enough. They say examples of a prosecutor fabricating evidence, that don't need a case on point, that, you know, you can't do that. Like, a prosecutor, you went to law school, why know that's wrong? So we're not going to wait for a case-on-point to find that that person violated the Constitution. It's just done. District court said that wasn't obviously unconstitutional behavior, and the Tenth Circuit disagrees. Conduct was perhaps ultimately less traumatic than a wrongful conviction or physical injuries. That was only because Rosales responded calmly and reasonably to Bradshaw's actions. He didn't die, but that's not because Bradshaw is a good guy, it's because Rosales stayed calm in a really scary situation. So Overall, really solid. Just

0:44:44 Thomas: Yeah. Guy rules. I think it's like for this guy now, when he drives around, he's like, man, is it going to happen again?

0:44:57 Jenessa: God, after two of these I would just be like, I'm not driving. I

0:44:59 Thomas: Yeah. If he, maybe he's one of those superstitious people. That's like, if it happens in threes, like I, I, well, I almost would like to drive. It'd be like, well, I mean, assuming you can, you know, you're not going to get shot or something, like, but he's, he's cool as a cucumber, this guy. We've seen him in action. Like, he seems pretty good at this. Yeah.

0:45:05 Jenessa: Got one left. I It's weird, like, normally we see people who are armed, or even suspected of being armed, like, they get shot. He's openly like, "I have a gun," and Then gets away safe, physically safe.

0:45:27 Thomas: Yeah. Argue. He has a duty to society to be driving around all the time, because then he's going to find that next cop who's going to out themselves as an asshole, get fired, lose qualified immunity, you know, he's...

0:45:41 Jenessa: So... If he goes to another circuit and a cop doesn't get qualified immunity, and he creates a circuit split that goes to the Supreme Supreme Court, that is like Rosales v.

0:45:50 Thomas: The greatest civil rights icon in our country. Crazy.

0:45:53 Jenessa: Truly, you know, I don't wish that on him, but it would be interesting to talk about at least. Want to bring up the concurrence here I think is so interesting. So on the one hand, there are no citations in these two paragraphs. So I don't know the extent to which this judge is relying on like legal precedent that they just got bored and insight to, or if this is philosophizing an alternative that they like. I do like what they're proposing. So, okay, they say it's a concurrence. They agree, no qualified immunity.

Concerned that if a traditional analysis is conducted in this case, taking the actions of the officer step by step and ignoring the officer's subjective state of mind, one could be hard -pressed to conclude Mr. Bradshaw committed a Fourth Amendment violation, much less a clearly established violation. So if we just look at each event that happened in isolation, he saw a guy take turns without signaling, that would justify pulling someone over. He saw a guy with a gun, that justified feeling threatened and telling him to disarm himself, like, to look at the holistic analysis, right? And if we do a traditional analysis where we don't do that, and we don't look at his subjective state of mind, and we don't look at the fact that other people think he's a hothead, we're going to be in trouble. So he's almost implying, I, our circuit does it differently or that we did it differently in this case compared to traditional, um,

0:46:00 Thomas: Yeah.

0:47:24 Thomas: Yeah, that's interesting. Like, why he felt the need, or why this judge felt the need to write that.

0:47:30 Jenessa: Yeah. Paragraph is this: "Taking a holistic view, however, it's hard to justify not imposing civil liability under Section 1983 on an officer convicted of the offense of personally assaulting the plaintiff. Preclusion, not argued here." So he's kind of making a point of, wink wink, somebody should bring this up next time. "Issue preclusion should establish the constitutional violation, and certainly the rationale for qualified immunity has no purchase once the officer has already been successfully prosecuted from this perspective. I concur in the result," so

0:48:10 Thomas: This just like a good version of Kavanaugh that has to get their word in, you doesn't add much? I

0:48:16 Jenessa: The thing that this would do here, what it would really make this instead of a 27-page decision, like a two-page decision, is, "Hey, a jury of your peers found beyond a reasonable doubt that you are guilty of assaulting this person," which necessarily meant finding this was not a lawful arrest or a lawfull pullover, like your behavior was an appropriate response that, maybe it's not something I would have been allowed to do, but it was something a cop was allowed to. They wouldn't have found you guilty, like a cop would, would be trying to raise that defense and failing. Whole jury of your peers found you guilty beyond a reasonable doubt. How is issue preclusion, how are you allowed to argue you didn't assault him? You did. We already know that you did.

0:49:08 Thomas: Is he arguing he didn't assault him?

0:49:11 Jenessa: Arguing that his force was reasonable, which a jury found beyond a reasonable doubt that it wasn't. So what are we doing here? You definitely can't go the other direction. Like, if somehow the civil Section 1983 resolved before your criminal case, a jury finding to a preponderance of the evidence that, know, like, the civil tort is usually an easier standard, you were liable for that. When it comes to the criminal trial, you are always going to get a jury of your peers to be allowed to find differently.

But at this civil stage, for qualified immunity to say it was not clearly established that I was violating the law, you were just found guilty beyond a reasonable doubt of violating the law What wish there were citations here so I could pull whether there was anybody else arguing anything like this anywhere else. It facially plausible to me. It makes sense. Like, you'd have to be very careful about actually precluding the argument, like, I'm not even going to let you try because you were already found guilty of this. But yeah, know, if it was a battery and you were found guiltyof hitting me by a jury of your peers beyond a reasonable doubt, why would you get to argue in another trial that you didn't even hit me?

Like, another criminal trial, sure. But we're at the civil level and you're trying to say this was so reasonable that you did not know you were violating excessive force, Fourth Amendment. You're in jail for it. How that line up? So to not dismiss the case at the earliest stage because you didn't know, well, everybody else is expected to know because anybody else who did what you did would have been guilty of assault. So make a lot of sense. Yeah, I wish I had citations on that one so I could investigate it further. I like the theory. Yeah.

0:49:15 Thomas: Okay, okay. Right. Yeah.

0:51:10 Thomas: That interact with with qualified immunity or is that just in the specifics of this case? I guess I don't totally understand that distinction.

0:51:18 Jenessa: Like this where somebody's already been criminally convicted of parts of it, like, have already been established on that level and we're gonna let you dispute that you didn't know and couldn't reasonably have known this was a constitutional violation or that this was excessive force after a criminal conviction has already come through. Yeah.

0:51:47 Thomas: Yeah. OK, so that's interesting because one of the annoying things about the qualified immunity that we've talked about all the time is, like, cops don't have to know the law when it comes to violating your constitutional rights, but when they kind of, as a civilian in a way, have been convicted or not really, whatever, just, like, have been convicted of a normal person crime, like, just in normal person capacity, that's just assumed to be, you should have known better. Think that was the disconnect I wasn't getting. Yeah.

0:52:16 Jenessa: Okay, if you just threw me in the back of a car and drove me somewhere I didn't want to go, that is kidnapping, that is false imprisonment. Um, I sued you for false imprisonement, or you were criminally, uh, with false imprisonament, and you show up and you're like, hi, I admit to everything that happened except for the part where, um, a cop, and that was an arrest, that was a cop car, they were reasonably suspected of committing a crime. I was not me, a rando, throwing a random person in the back of my car and driving away.

I am a police officer arresting someone. This has been mischaracterized. A defense you could raise, right? So if you were an officer who swears up and down, you were just affecting a normal arrest and a jury of your peers found you guilty beyond a reasonable doubt of false imprisonment, because actually, no, you are not reasonably arresting that person, that was so completely unreasonable for you to do, that if I then also sued you for false imprisonment, it would be wild if after the conviction you're allowed to be like, well, I didn't know and I couldn't reasonably have known that it was not reasonable to arrest this person. It's like, that's funny, because a jury really thought you did know. Yeah.

0:53:37 Jenessa: So that's what he's getting at here, is, like, in certain cases that are this egregious where we have a criminal conviction, should that not preclude you from claiming you didn't know?

0:53:35 Thomas: Disagreed. I Think I'm still getting hung up on, like, isn't it true that you not knowing that something is illegal isn't a defense? So couldn't you say, theoretically, yeah, I got convicted, I didn't know it was illegal, legal, but in the cop capacity that is actually apparently a defense to terms of getting qualified immunity, right? It's

0:54:11 Jenessa: And I do think it's a weakness of this that Would imply qualified immunity is a stronger defense against, like, just a civil penalty compared How the rest of us have to follow laws we don't even know exist. Yeah.

0:54:13 Thomas: Interesting. Yeah. I think it is absolutely. I think that's, I could be wrong, but that's been my impression of it, where you're like, I don't get it, I have to know every possible law, but you don't have to knowing anything. So That's how I've always viewed it. I could be incorrect in how I'm viewing, but I think that's why I was hung up on it a little bit. Yeah.

0:54:34 Jenessa: No. I look at it that way Too. Like

0:54:41 Thomas: But But I welcome this, this, uh, theory For sure. Like, I, I hope that would be how judges would look at it. Yeah.

0:54:43 Jenessa: Yeah. I think the difference might be with police officers, with, in their official capacity, they're state will have some version of this either on the books or at common law. If they were actually acting as a police officer, they have access to a defense you and I do not where can say, everything I did was part of my official duties, part of mi right to arrest a person. One presumes that was raised as a defense at trial and failed beyond a reasonable doubt. It failed, so you would think that should matter, where you and I don't get that defense. We can do self-defense, defense of others, insanity, but we don't get the, that's part of my job to Punch people, like Dependent, not Going to Protect you When You, like, really hurt somebody. Um It's interesting. Obviously, it would have to be, like, very carefully couched from a due process perspective. But, like, the criminal side already has really high due process protections, higher than civil. So, I don't know. It's very interesting.

0:55:32 Thomas: Citizens Arrest. Yeah, it's Pretty Rare Yeah. Right. Yeah.

0:55:54 Thomas: I Love that point, that's, that's really interesting wrinkle. Yeah.

0:55:57 Jenessa: I, For sure. So, overall, really solid. Just this guy was acting so egregiously, no one could reasonably not know that behavior was inappropriate. It Was a road rage incident with your kid in the car. Let's be real. That's what happened.

0:56:08 Thomas: Right. Overturned Signal or, yeah, right. Well, or passing Being passed

0:56:15 Jenessa: Initially Just Being Passed, and at this stage presumably passed illegally, so He just got mad and chased him home and waved a gun around and screamed at him and with his kid in the car, like

0:56:16 Thomas: Yeah. Yeah. Incredible. Dare you out there cops to be the third cop that tries this guy. Really?

0:56:33 Jenessa: No. Oh God, it'll be Lewis a second time.

0:56:39 Thomas: Do This Was so interesting. Thanks, Jenessa. Really enjoyed this, uh, little, little, the word for two things I'm blanking on, it this little duo, this little, uh, what's like a trilogy but a doodoology, I don't. Is There A word For That I'm reaching For A Word that may or may not exist, but whatever it is, I enjoyed it. Thanks so much. Couplet.

0:56:50 Jenessa: Duology is That A Thing I Don't Know Someone's Gonna tell us good talking to you.

0:57:08 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon .com slash law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:57:40 Thomas: Got my sheriff's flip-clops on you.

0:57:43 Jenessa: No, no, you suck. No.