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.

0:00:00 Clip: Thank you.

0:00:03 Jenessa: Blocked the driveway and yelling at him of course he armed himself in response to that like called a fellow sheriff's deputy, asked says to the deputy he does not want her to go to his location but the deputy ignored that instruction quote she knew Bradshaw had a volatile temper so pretty good a little busy but

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 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September of this years so they're right on point with any changes that have happened you articles can always end up out of date so quickly but these guys keep that up to day so really great database base um make sure if you are doing a mail -in or absentee um of all know the deadlines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.

0:03:19 Jenessa: 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. 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 I've finally given people the stakes they need in order to vote it's

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

0:05:37 Jenessa: 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

0:06:20 Thomas: Caught on a hot mic of a body cam basically which

0:06:26 Jenessa: So I had to go look that up um

0:06:28 Thomas: 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

0:06:41 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 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 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 well I mean I guess I don' t have to get to know know the guy again and can

0:07:34 Jenessa: Know. Probably not take a win yes

0:08:05 Thomas: Remind us I guess but yeah possible

0:08:08 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 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

0:09:38 Thomas: And likely 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 what the hell yeah

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

0:11:25 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.

0:12:05 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

0:12:10 Jenessa: 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. 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 I don't actually know how those laws work like

0:12:25 Thomas: Scary also scary I didn't know that that's open carry if you're on in your driveway right yeah not important but like yeah

0:12:59 Jenessa: 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 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

0:13:06 Thomas: 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 I yeah 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

0:14:49 Thomas: Yeah and pointed his gun out of out the 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 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

0:15:24 Jenessa: Anything dad does yeah oh yeah defeat the purpose of the holes

0:15:36 Thomas: 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 yeah got one with a little gun you know something like that I think it'd be great it

0:15:44 Jenessa: Sheriff crux oh my we're not far away from that to be honest um

0:15:52 Thomas: Would make me like this asshole more which most things would because I don't like him yeah nice

0:15:55 Jenessa: 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

0:16:23 Jenessa: 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

0:16:29 Thomas: Don't think it's like amazing but yeah it'S a red state but

0:16:34 Jenessa: Fired and charged and convicted of aggravated assault and child endangerment

0:16:40 Thomas: 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

0:17:31 Thomas: 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.

0:17:33 Jenessa: Would think yep yeah like how

0:17:43 Thomas: You fucked kid. All right, fine. You know, go over here and be the voice. Of God. Weird to me. I don't understand.

0:17:50 Jenessa: 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

0:18:03 Thomas: There's another defendant? Oh, okay. 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?

0:18:32 Jenessa: 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

0:18:39 Thomas: 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

0:20:15 Jenessa: 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?

0:21:08 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

0:21:02 Thomas: Sure yeah yeah

0:22:05 Jenessa: 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.

0:22:09 Thomas: 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 dont like signing and reading 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. 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

0:27:12 Thomas: 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.

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

0:29:12 Jenessa: 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

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

0:29:58 Thomas: Know what the minute they start doing this with those bright ass headlights instead of turn signals I'm I back the blue I'm back you know vote vote trump no I'm just kidding cool

0:30:02 Jenessa: Shit yes 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.

0:31:04 Thomas: 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 but

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: 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: Well agree to disagree yeah 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 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.

0:39:09 Jenessa: Stated that continuing to hold the children directly at gun point 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

0:39:57 Thomas: Could kind of point a gun at him a little bit, right? God, will you guys let me do anything?

0:40:00 Jenessa: A second 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 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

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

0:42:10 Thomas: 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 thatit 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

0:42:41 Jenessa: 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.

0:43:07 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.

0:43:31 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

0:44:49 Thomas: 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?

0:44:58 Jenessa: After two of these I would just be like I'm not driving I

0:45:01 Thomas: 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 so

0:45:30 Thomas: 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: 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,

0:47:24 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 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.

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

0:51:10 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

0:54:40 Jenessa: 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

0:54:47 Jenessa: 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 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

0:56:11 Thomas: 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

0:56:22 Thomas: Incredible dare you out there cops to be the third cop that tries this guy really do this

0:56:36 Jenessa: God it'll be lewis a second time

0:56:39 Thomas: 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.