[00:00:03] Speaker 01:
Good morning, your honors, and may it please the court.

[00:00:05] Speaker 01:
My name is Ashley Coppe, your adultery, and I represent the appellant and defendant, Deputy Travis Rotten.

[00:00:11] Speaker 01:
I'd like to save two minutes for rebuttal, and I'll watch my time.

[00:00:15] Speaker 01:
This is a straightforward appeal involving a single use of force after plaintiff failed to give up his hands during an arrest.

[00:00:24] Speaker 01:
The district court, in fact, found that plaintiff posed an eminent and grave threat.

[00:00:29] Speaker 01:
The district court also found that the severity of the crimes at issue in this case justified the use of significant force, which it believed that the punches were.

[00:00:38] Speaker 01:
The issue here on appeal started with the question of whether

[00:00:45] Speaker 01:
plaintiff had moved his hands prior to those strikes, but plaintiff has now conceded, consistent with the record, that he did in fact move his hands.

[00:00:53] Speaker 01:
But regardless of the resolution of that issue, Deputy Rodden is entitled to qualified immunity, both because his use of force was reasonable as a matter of law under Graham, and also because no case clearly established the right at issue.

[00:01:07] Speaker 01:
In this case, plaintiffs shot at the deputies in the forest of Coconino County in pitch black darkness around three o'clock in the morning for over 30 minutes.

[00:01:16] Speaker 01:
The deputies feared for their lives.

[00:01:18] Speaker 01:
As you listen to the video, you can hear them talking to one another about the shots coming past them, how they're taking rounds, that they're worried about the neighboring

[00:01:27] Speaker 01:
community, they had already called out the SWAT team to come to the scene to help clear out the neighboring homes to remove potential victims because of the shooting in this case.

[00:01:39] Speaker 01:
When plaintiff stepped out of his house, that's the backdrop that we're dealing with, this ongoing active shooter situation.

[00:01:45] Speaker 01:
They believed, and the district court found it was reasonable for them to believe, that there may have been a second shooter and that there may have been a victim in the house.

[00:01:53] Speaker 01:
So there were certainly exigent circumstances here that required

[00:01:57] Speaker 03:
So even if there was a second shooter or a victim in the house, why does that require punching him in the face?

[00:02:03] Speaker 01:
Because they needed to arrest him and get him under control so that they could go and find the victim or go and find the second shooter and make sure that the neighborhood was safe.

[00:02:11] Speaker 01:
He hadn't given up his hands.

[00:02:13] Speaker 01:
In fact, the record shows, and plaintiff has conceded, that he moved his hands underneath him.

[00:02:17] Speaker 00:
But if you watched the video, it appears much more that it was like a sudden jerk when the deputy sat on his back.

[00:02:29] Speaker 00:
And plus, he wasn't wearing a shirt, right?

[00:02:34] Speaker 01:
It's correct that he wasn't wearing a shirt.

[00:02:37] Speaker 00:
So it seems to me that a reasonable juror could find that he did not

[00:02:43] Speaker 00:
intentionally move his arms, and he did not move in a way that would have endangered the deputy or anyone else.

[00:02:54] Speaker 00:
So we have to look at the facts in the light most favorable to the plaintiff, correct?

[00:03:00] Speaker 01:
Yes, Your Honor.

[00:03:01] Speaker 00:
OK.

[00:03:01] Speaker 00:
So why isn't that a permissible viewing of the body cam footage?

[00:03:09] Speaker 01:
Because the suspect's intent is not the operative issue in this case.

[00:03:13] Speaker 00:
Note that the placement of his hands is, and his hands are still more or less visible up at the top part of his body, not down where he was trying to reach for something a juror could so find.

[00:03:26] Speaker 01:
But a reasonable officer's perspective, a reasonable officer could have believed that as he was moving his hands that he would have continued to move them and could have reached for a weapon inside of his shorts.

[00:03:36] Speaker 01:
So we have to look at it under United States Supreme Court precedent.

[00:03:40] Speaker 01:
And this court's precedent, we have to look from the reasonable officer's perspective and look at the totality of the circumstances.

[00:03:46] Speaker 00:
But we have to look at the facts in the light most favorable to the plaintiff.

[00:03:50] Speaker 01:
I agree, Your Honor.

[00:03:50] Speaker 01:
But it's still from a reasonable officer's perspective.

[00:03:53] Speaker 00:
And at the time he was first struck, his hands are both visible.

[00:03:58] Speaker 01:
But they're still underneath him, and he still hasn't given his hands up.

[00:04:01] Speaker 01:
So he is resisting arrest.

[00:04:04] Speaker 01:
And the resisting arrest factor is the only factor under Graham that the district court found was there was a question of fact.

[00:04:10] Speaker 04:
In the light most favorable to the plaintiff, could the officer put handcuffs on him when his hands were like this?

[00:04:17] Speaker 01:
Absolutely not.

[00:04:17] Speaker 01:
Not while they were underneath him, because he couldn't reach underneath.

[00:04:20] Speaker 01:
He couldn't grab them.

[00:04:21] Speaker 01:
He was resisting.

[00:04:22] Speaker 01:
He was trying to handcuff him behind him.

[00:04:24] Speaker 01:
And so that was why he was trying to grab his hands.

[00:04:26] Speaker 01:
in deputy rounds affidavit he explained that he reached to try and grab his hands behind him but plaintiff resisted and so then his hands were underneath him he could not effectuate arrest.

[00:04:37] Speaker 04:
In your view, I mean it is pretty clear from the video and I think all the testimonies that he put his hands underneath him in response to the officer putting his knee on his back, right?

[00:04:46] Speaker 01:
Yes.

[00:04:46] Speaker 04:
Is that and why does that not matter that it's not that he was it seems like is involuntary frankly

[00:04:53] Speaker 01:
But even if it's involuntary, it still has to be looked at from the perspective of a reasonable officer on the scene and not with 20-20 hindsight.

[00:04:59] Speaker 03:
But the moment's really full minute.

[00:05:02] Speaker 03:
So I mean, you do have a very scary situation earlier.

[00:05:07] Speaker 03:
But in the minute or so leading up to this, he was following commands.

[00:05:10] Speaker 03:
He did everything the officers told him to do, right?

[00:05:13] Speaker 03:
He was lying outstretched and half naked.

[00:05:16] Speaker 01:
He would follow some of the commands, but they had to give commands multiple times.

[00:05:22] Speaker 01:
And even at the times of the strikes, they're telling him, stop moving.

[00:05:25] Speaker 01:
You're still moving.

[00:05:26] Speaker 01:
You're not giving up your hands.

[00:05:28] Speaker 01:
They weren't able to arrest him.

[00:05:30] Speaker 01:
And until they arrest him, that circumstance is still ongoing.

[00:05:33] Speaker 01:
They're still worried there's a second.

[00:05:34] Speaker 04:
Did they think that there was a second shooter at the time?

[00:05:36] Speaker 01:
Exactly.

[00:05:37] Speaker 01:
They thought there was a second shooter.

[00:05:38] Speaker 04:
So they're not perfect safety.

[00:05:39] Speaker 01:
Exactly.

[00:05:39] Speaker 01:
They thought there was a second shooter.

[00:05:41] Speaker 01:
They thought there could have been a victim in the house.

[00:05:44] Speaker 01:
The district court found that he did pose a grave and imminent threat at that time.

[00:05:48] Speaker 01:
It found that as to both uses of force.

[00:05:51] Speaker 01:
And we have to know for review.

[00:05:53] Speaker 01:
That's correct, Your Honor.

[00:05:56] Speaker 04:
The district court said his hands were not underneath him when he was struck.

[00:06:00] Speaker 01:
That's correct.

[00:06:01] Speaker 04:
How did that happen?

[00:06:03] Speaker 01:
The district court based that on argument in the response to motions for summary judgment that didn't have any citation to the record.

[00:06:09] Speaker 01:
And in fact, when you review the district court's order.

[00:06:12] Speaker 01:
So that was an error.

[00:06:14] Speaker 01:
Correct.

[00:06:14] Speaker 01:
It was an error.

[00:06:15] Speaker 01:
And the district court, earlier in its order, recognized that plaintiff had said that he moved his hands underneath him.

[00:06:21] Speaker 01:
So even reading the district court's order, it acknowledged that, and then later on said, no, he was motionless.

[00:06:27] Speaker 01:
But again, the citation was just an argument of counsel.

[00:06:30] Speaker 01:
So that was an error.

[00:06:32] Speaker 01:
The district court based its entire ruling on that error.

[00:06:35] Speaker 01:
It continued to say that if accepting defendant's facts is true, perhaps he would be entitled to qualified immunity.

[00:06:42] Speaker 01:
Should we send it back to the district court to reconsider?

[00:06:45] Speaker 01:
I don't think you need to, Your Honor, because we have de novo review.

[00:06:48] Speaker 01:
Because you have de novo review, and also because the district court's decision, if you read it, reads like it would have granted qualified immunity if it weren't for this factual issue that it found.

[00:06:57] Speaker 01:
But that doesn't matter either, because we have de novo review.

[00:07:00] Speaker 01:
Yes, Your Honor, yes.

[00:07:01] Speaker 01:
I mean, I think either way, whether you're reviewing de novo and find that he's entitled to qualified immunity, or whether you say this was never an issue of fact in the first place, you know.

[00:07:10] Speaker 04:
It just makes a difference in how you anchor the case.

[00:07:12] Speaker 04:
If you start off with denying

[00:07:14] Speaker 04:
based off a clearly erroneous factual understanding, that just kind of changes the trajectory of the case.

[00:07:21] Speaker 01:
But even aside from this issue of whether the use of force was reasonable, there's still no case that put him on notice that the right was clearly established, especially if we're saying that he moved his arms, because the only case that the district court relied on was Blankenhorn.

[00:07:38] Speaker 01:
And in Blankenhorn, the plaintiff was motionless.

[00:07:41] Speaker 01:
hadn't been compliant.

[00:07:42] Speaker 03:
But isn't the question for the jury whether he was resisting arrest or posing any danger?

[00:07:47] Speaker 03:
And the jury could watch this video.

[00:07:49] Speaker 03:
And why couldn't the jury watch this video and think he was not resisting arrest or posing any danger?

[00:07:55] Speaker 01:
I think the question that the district court found was whether he had moved his hands.

[00:07:59] Speaker 03:
Yeah, but we are not worrying about the district court.

[00:08:01] Speaker 03:
We have de novo review.

[00:08:02] Speaker 03:
We are looking at the record and trying to answer the question we have to answer.

[00:08:05] Speaker 03:
And so I'm asking you how to answer that question.

[00:08:07] Speaker 01:
I think that the jury could

[00:08:09] Speaker 01:
has to resolve if there's an issue of fact, and the issue of fact would be whether or not he moved his hands.

[00:08:15] Speaker 01:
He did move his hands, and we can resolve the qualified immediate question.

[00:08:18] Speaker 00:
The issue of fact is whether it was reasonable for the officer to believe that he posed an immediate threat or was actively resisting arrest.

[00:08:30] Speaker 00:
That's the question for the jury.

[00:08:33] Speaker 01:
Yes, Your Honor.

[00:08:33] Speaker 00:
Not whether he moved his hands.

[00:08:36] Speaker 01:
I don't think that a reasonable jury in this case could find that he was not resisting arrest because the officers could not handcuff him until after the conclusion of the strikes.

[00:08:46] Speaker 01:
The strikes ended as soon as he complied.

[00:08:49] Speaker 01:
They were then able to effectuate the arrest.

[00:08:51] Speaker 01:
And it's, again, from a reasonable officer's perspective and not from the subjective intent of plaintiff.

[00:08:56] Speaker 01:
If we let every single case go to the jury where plaintiff said,

[00:08:59] Speaker 01:
Oh, I didn't mean to move my hands.

[00:09:01] Speaker 01:
It was just a reaction.

[00:09:02] Speaker 01:
Then every single case would go to the jury, and we wouldn't have summary judgment in these cases.

[00:09:07] Speaker 03:
But I don't think we only have that here.

[00:09:08] Speaker 03:
What we have is a video where you can tell that he moved his hands because of the knee hitting his back.

[00:09:14] Speaker 01:
I'm not sure that the video definitively shows that he only moved his knees because of that.

[00:09:19] Speaker 01:
And the officers on the scene and their affidavits all stated that they were concerned that he was moving his hands because he could have reached underneath him and that he was, at the end of the day,

[00:09:29] Speaker 01:
resisting arrest because he was not getting his hands out to them.

[00:09:34] Speaker 04:
Basically, the question is, would it be reasonable for the officer to believe that he was moving his hands not because he was on his kneeing his back?

[00:09:42] Speaker 01:
I think it would be reasonable for an officer to believe he was moving his hands in order to avoid arrest, in order to not be handcuffed.

[00:09:48] Speaker 01:
because he was already not complying with orders.

[00:09:52] Speaker 01:
He had already been shot at them.

[00:09:54] Speaker 01:
Yes, he had shot at them for nearly 30 minutes.

[00:09:57] Speaker 01:
So against that backdrop and looking at the totality of the circumstances, which the court is required to do under Graham, I think it's perfectly reasonable for the officers to believe that he was resisting arrest at that time.

[00:10:10] Speaker 01:
And again, this takes us also very far away from Blankenhorn, because in Blankenhorn, the person was motionless, the person was

[00:10:16] Speaker 01:
calm it was a misdemeanor trespass there's no case on point that deals with this extremely severe issue of over thirty minutes of a tense standoff when then the person is not submitting to arrest and cannot be handcuffed there just isn't a good year here

[00:10:33] Speaker 03:
taking the facts in the light most favorable to the officers by saying that he was resisting arrest.

[00:10:37] Speaker 03:
That's the question the jury has to answer.

[00:10:39] Speaker 03:
And if they could reasonably look at this video and say he was not, then that's the factual backdrop we have for answering the legal question, isn't it?

[00:10:47] Speaker 01:
But we would still need a case on point that discussed someone who involuntarily moved their hands and said an officer is not entitled to use force, even if the person is involuntarily moving their hands.

[00:10:58] Speaker 01:
Because Blankenhorn

[00:11:00] Speaker 01:
involved a fact pattern where the person was in fact motionless.

[00:11:03] Speaker 01:
But we've all said that the video shows that he did in fact move his hands.

[00:11:07] Speaker 01:
We're now talking about intent.

[00:11:09] Speaker 03:
If he was not resisting arrest and not posing a danger, then they can't use force, right?

[00:11:15] Speaker 01:
Right, but he did pose a danger in this case.

[00:11:18] Speaker 00:
I mean, we're sort of in a circular discussion because we have to look at this in the light most favorable to the plaintiff.

[00:11:27] Speaker 00:
And a jury might not ultimately do so, but that's our job on summary judgment.

[00:11:33] Speaker 00:
And so if he's not resisting arrest and he's not posing an immediate threat, then what force, if any, is allowed

[00:11:46] Speaker 00:
Punching in the face is not allowed in that situation.

[00:11:50] Speaker 00:
I mean, Andrews versus City of Henderson, I think, talks about what Blankenhorn establishes, which is that you can't use force if a person is neither posing an immediate threat nor resisting arrest.

[00:12:06] Speaker 01:
But I think that gets dangerously close to the fact that Blankenhorn itself, based its holding completely on Graham, but cases like Kissela versus Hughes have said,

[00:12:14] Speaker 01:
Graham itself and the parameters of Graham do not clearly establish law for the future.

[00:12:19] Speaker 01:
There has to be a case on point.

[00:12:21] Speaker 00:
Well, there are ninth circuit cases.

[00:12:22] Speaker 00:
I just mentioned a couple that if we take the facts in the plaintiff's favor, he was not resisting arrest and he was not posing a threat.

[00:12:32] Speaker 00:
And in that situation, we have cases that say you can't punch somebody in the head when they're not a danger and they're not a threat.

[00:12:41] Speaker 01:
but you also have to look

[00:12:46] Speaker 01:
only arrested for a misdemeanor trespass.

[00:12:49] Speaker 01:
The officers had known he had a history of being caught.

[00:12:51] Speaker 00:
So the difference is, if you have a motionless person who's shirtless, who's lying on the ground, and something bad happened earlier, you get to punch them.

[00:13:00] Speaker 00:
Whereas if something not so bad happened, you can't punch them.

[00:13:03] Speaker 00:
That doesn't seem like what our cases would say.

[00:13:06] Speaker 01:
He wasn't motionless.

[00:13:07] Speaker 01:
He moved his hands underneath him.

[00:13:09] Speaker 00:
Well, but your theory seems to be that because really bad things happened earlier,

[00:13:14] Speaker 00:
That sort of gives a free punch later on when that danger is dissipated.

[00:13:21] Speaker 04:
Well, that's the gram factor, isn't it?

[00:13:24] Speaker 01:
Yes, Your Honor, it does get to the Graham Factors and ultimately you have to look at the totality of the circumstances and the fact that this horrible thing happened earlier on is part of why it's so reasonable for the officers to believe that he had moved his hands to... Can I ask a question?

[00:13:38] Speaker 04:
I don't think the jury will ever be asked did he resist arrest or did he pose a danger.

[00:13:45] Speaker 04:
The jury would only be asked was the officer reasonable in thinking that he would pose a danger

[00:13:51] Speaker 01:
or resistor is not correct isn't that the precise jury question that's correct because it has to be from the reasonable officers perspective not from the suspect and not from a reasonable person generally but a reasonable so it's wrong to say that the jury could find he was a stress i mean that he didn't resist arrested they would never be asked that correct and i'd like to see for the rest of my time for a bottle unless you have any other questions

[00:14:22] Speaker 02:
Good morning, Your Honors, counsel.

[00:14:25] Speaker 02:
My name is Wendy White.

[00:14:26] Speaker 02:
I'm here on behalf of the plaintiff, Appellee Daniel Fluse.

[00:14:30] Speaker 02:
I think it's fair to say that this court knows it has de novo review.

[00:14:38] Speaker 02:
I won't discuss that.

[00:14:42] Speaker 02:
There is one fact that wasn't discussed in the district court's opinion and that hasn't been mentioned here, and it is in dispute.

[00:14:51] Speaker 02:
And it is material to the issues involved.

[00:14:54] Speaker 02:
And that fact is that the officers, when they arrived, they actually arrived in stealth mode.

[00:15:00] Speaker 02:
I don't know if any of you have been to the wooded northern Arizona regions, but it was as described by the officers themselves as well as in the factual statements in the summary judgment as well as in the briefs.

[00:15:17] Speaker 02:
It's dark.

[00:15:18] Speaker 02:
There was no light.

[00:15:20] Speaker 02:
The officers chose to arrive in the middle of the night without lights on, completely black.

[00:15:26] Speaker 02:
Now why is this important?

[00:15:27] Speaker 02:
Yeah.

[00:15:28] Speaker 02:
Exactly.

[00:15:29] Speaker 02:
So the problem is that when they got out of the car and the first shots came towards them, they did not announce their presence.

[00:15:39] Speaker 02:
They never announced their presence.

[00:15:42] Speaker 02:
And they never issued any commands or attempts to speak with the shooter at all.

[00:15:48] Speaker 04:
Were they on the shooter's property at the time?

[00:15:51] Speaker 02:
They were off the property.

[00:15:53] Speaker 04:
So how does that make a difference?

[00:15:55] Speaker 04:
You can't just shoot at someone just because they're outside in the dark if they're not on your property.

[00:16:00] Speaker 02:
The reason why police were called is because an intruder had attempted to come into Daniel Cluse's property shortly before that.

[00:16:09] Speaker 02:
which was the circumstance surrounding the call.

[00:16:17] Speaker 02:
Is there had been an intruder?

[00:16:19] Speaker 04:
I thought he was the intruder.

[00:16:21] Speaker 02:
No.

[00:16:21] Speaker 02:
No, totally not.

[00:16:23] Speaker 02:
He owned the house.

[00:16:25] Speaker 02:
And there was an intruder that came in.

[00:16:27] Speaker 02:
The neighbors called because they heard two people arguing.

[00:16:30] Speaker 04:
You can't really be arguing like a self-defense claim here.

[00:16:33] Speaker 02:
This isn't a criminal case, but if it were a criminal case, he could.

[00:16:36] Speaker 04:
Oh, really?

[00:16:37] Speaker 02:
Yes.

[00:16:39] Speaker 03:
So yes, and he could.

[00:16:40] Speaker 03:
It's really just atmospherics anyway, though.

[00:16:42] Speaker 03:
Aren't we focused on the moments around the punching?

[00:16:46] Speaker 02:
Yes, but we are also focused on whether it was objectively reasonable for the officers to believe that he posed a threat to them.

[00:16:55] Speaker 02:
And if they didn't announce their presence, even.

[00:16:58] Speaker 04:
So you agree, then, that we should consider all the facts leading to the

[00:17:03] Speaker 04:
to the punching, including them being shot at that is dark.

[00:17:08] Speaker 04:
So that's not improper to consider all the facts, right?

[00:17:10] Speaker 02:
No, it's definitely not.

[00:17:11] Speaker 02:
I mean, the case law is clear that the court should consider and the jury should consider the totality of the circumstances.

[00:17:17] Speaker 02:
So clearly, the court should.

[00:17:20] Speaker 02:
But there's also a grand factor, or at least a factor, to consider.

[00:17:24] Speaker 02:
And that's the extent to which the officers themselves have created a danger.

[00:17:28] Speaker 02:
And in this case, they failed to actually announce themselves

[00:17:33] Speaker 02:
And never directed, just going back one sec, asking whether they were off his property.

[00:17:42] Speaker 02:
They were on the edge of his property, essentially.

[00:17:48] Speaker 02:
And again, under the circumstances, totality of the circumstances, they didn't announce.

[00:17:53] Speaker 02:
Rowden shot at him seven times without announcing their presence.

[00:17:59] Speaker 02:
And that is undisputed by the facts.

[00:18:03] Speaker 02:
What's in dispute is Rowden claims that he yelled Sheriff's Department, and there's no substantiation for that.

[00:18:12] Speaker 02:
His partner Mitkowski, the other officer, deputy, didn't hear him, and he was right by him.

[00:18:19] Speaker 02:
And our client in his statement said he certainly didn't hear anybody yelling or announcing that they were there.

[00:18:26] Speaker 02:
Mitkowski was a couple feet away.

[00:18:28] Speaker 02:
So that's the... But doesn't that hurt your client, frankly?

[00:18:33] Speaker 04:
Because it seems like they're just trying to show why it was reasonable for him to not be compliant.

[00:18:40] Speaker 02:
No.

[00:18:41] Speaker 02:
They didn't ever ask him to do anything.

[00:18:43] Speaker 02:
Well, they did at some point.

[00:18:45] Speaker 04:
Yeah, until... But he wasn't listening initially, and he wasn't non-compliant for like 30 minutes, correct?

[00:18:50] Speaker 02:
No.

[00:18:50] Speaker 02:
No, they never asked him to do anything in that 30 minutes.

[00:18:54] Speaker 02:
Why did he come out all of a sudden after 30 minutes, then?

[00:18:56] Speaker 02:
He was looking for the intruders.

[00:18:59] Speaker 02:
And it was the middle of the night.

[00:19:00] Speaker 02:
It's pitch black.

[00:19:03] Speaker 02:
And so he thought he was under attack.

[00:19:06] Speaker 02:
And in Arizona, you have the right to self-defense.

[00:19:09] Speaker 02:
And so when we get skipping forward to when he was actually asked, when they finally announced, 30 minutes later, they finally announced, oh, by the way, we're here.

[00:19:23] Speaker 02:
Well, they didn't say it that way.

[00:19:24] Speaker 02:
Sheriff's department.

[00:19:26] Speaker 02:
That's when he immediately.

[00:19:29] Speaker 02:
put his guns down, came out, fully complied with every command that they gave him.

[00:19:35] Speaker 02:
I mean, they were able to see front, back.

[00:19:38] Speaker 02:
They were able to see that he was basically naked.

[00:19:41] Speaker 02:
They could see that he had no shirt on.

[00:19:45] Speaker 02:
He had socks on and loose-fitting athletic shorts.

[00:19:49] Speaker 02:
And they could see front and back.

[00:19:50] Speaker 02:
They had one officer on one side, two officers on the other.

[00:19:54] Speaker 02:
They lit him up with, at that point, finally,

[00:19:57] Speaker 02:
lit him up with lights.

[00:20:01] Speaker 02:
And he was completely compliant.

[00:20:03] Speaker 02:
And so then he comes out.

[00:20:05] Speaker 02:
He tells them he'd put his guns down, tells them that one of them is loaded, walks backward as directed.

[00:20:13] Speaker 02:
So he had a gun on him.

[00:20:14] Speaker 02:
When he came out of the house.

[00:20:16] Speaker 02:
Yes, he did.

[00:20:16] Speaker 02:
And that's in the record.

[00:20:17] Speaker 02:
I think he dropped the gun.

[00:20:18] Speaker 02:
He put the gun on the ground, yes.

[00:20:20] Speaker 02:
Yes, two.

[00:20:21] Speaker 02:
There was actually two.

[00:20:22] Speaker 02:
He had one in his hand.

[00:20:23] Speaker 02:
So he had two guns when he came out.

[00:20:24] Speaker 02:
Yes.

[00:20:25] Speaker 04:
And then when did he drop those two guns?

[00:20:27] Speaker 02:
As soon as they yelled, Sheriff's Office, put your guns down.

[00:20:33] Speaker 02:
And he put his guns down.

[00:20:34] Speaker 02:
And he put his hands up.

[00:20:36] Speaker 02:
You can see from the video, if you watch the entire video, that he was completely compliant.

[00:20:41] Speaker 02:
Now, the defendants claimed that he wasn't.

[00:20:44] Speaker 02:
That's a disputed fact.

[00:20:46] Speaker 02:
Because again, when we're looking at,

[00:20:48] Speaker 02:
The reasonableness in this situation, we're looking at objective reasonableness.

[00:20:53] Speaker 02:
And is it objectively reasonable to think that after complying, doing everything that he was told, and being able to see him completely, and the way his shirt fit.

[00:21:06] Speaker 02:
He didn't have a shirt.

[00:21:08] Speaker 02:
Yeah, sorry.

[00:21:08] Speaker 02:
I misspoke.

[00:21:09] Speaker 02:
His pants, I meant.

[00:21:11] Speaker 04:
But you would agree that those pants were baggy enough that he could conceal the weapon in there?

[00:21:19] Speaker 02:
I'm not sure that that's true.

[00:21:21] Speaker 02:
We know that he was never searched though.

[00:21:24] Speaker 02:
No, I do agree that we certainly do agree that he had not yet been searched.

[00:21:28] Speaker 02:
That's correct.

[00:21:29] Speaker 02:
But they were able to see him.

[00:21:31] Speaker 02:
He did, you know, turn around.

[00:21:32] Speaker 02:
He had his hands up and he comply.

[00:21:33] Speaker 02:
He lay down on the ground.

[00:21:35] Speaker 02:
So next thing that happens, he's lying on the ground, face directed toward the right, cheek on the ground.

[00:21:42] Speaker 02:
Again, northern Arizona, cinder roads are extremely sharp.

[00:21:46] Speaker 02:
He's, you can hear him yelling, or not yelling, but at least grunting in pain as he's complying and going to the ground.

[00:21:52] Speaker 02:
And there's this officer, Stang, lieutenant, now lieutenant, but then Sergeant Stang, who's standing there with a rifle pointed at his face two feet away.

[00:22:02] Speaker 02:
When Rowden was behind him, couldn't be seen, he couldn't see Rowden, and Rowden comes and jumps with force

[00:22:11] Speaker 02:
landing in his back.

[00:22:14] Speaker 02:
No reasonable or objectively reasonable officer would think that a person under those circumstances is going to remain motionless.

[00:22:23] Speaker 02:
A 200-pound guy without warning comes and slams their knee into your back and attempts to choke you.

[00:22:32] Speaker 02:
What's that?

[00:22:33] Speaker 02:
What do you mean?

[00:22:39] Speaker 02:
In the record, there are pictures of

[00:22:41] Speaker 02:
finger marks around, and if you look at the video again, you'll see that Rowden's hands actually go to his shoulders and his neck, not attempting to handcuff him.

[00:22:54] Speaker 02:
You have to do it multiple times, but you've got to look at it.

[00:22:56] Speaker 02:
And after the fact... Are you saying that Rowden attempted to choke him?

[00:23:01] Speaker 02:
Yes.

[00:23:02] Speaker 02:
After the fact, if you listen to Daniel Kluge, it's kind of faint, but you listen to him talking to Rowden,

[00:23:11] Speaker 02:
Um, and this is the second video that's there.

[00:23:13] Speaker 02:
And he says, who were those dumb ass kids, um, that jumped on me and tried to choke me before, not much later, actually afterwards, but, but the point being is that there is evidence that Rowden actually went and put his hand around, um, Daniel's neck.

[00:23:31] Speaker 02:
Not before or after the punches.

[00:23:34] Speaker 02:
That was before the punches.

[00:23:35] Speaker 02:
That's again, take a look at the video, pay attention to the moment when

[00:23:40] Speaker 02:
when Rowden drops his knee, so it's like dropping the knee into the back and putting the hands on the neck.

[00:23:48] Speaker 03:
I'm not sure this really matters because the knee itself would cause the hands to move, but I don't remember this choking issue being in your brief.

[00:23:55] Speaker 02:
Yes, it actually is in there.

[00:23:57] Speaker 02:
I did mention the

[00:23:59] Speaker 02:
the statements after the fact.

[00:24:01] Speaker 03:
Yes, I think you quoted those, but at least in the description of what we should take from the video, I thought it was focused on the knee on the back.

[00:24:08] Speaker 02:
It is more focused on the knee on the back, but the point being is that, again, from an objectively reasonable standard,

[00:24:14] Speaker 02:
Nobody's going to think that a person's going to remain motionless.

[00:24:18] Speaker 02:
And so it was not objectively a reasonable form.

[00:24:22] Speaker 04:
But you can see then he put his hand under his body at some point.

[00:24:26] Speaker 02:
So he pulled his hands.

[00:24:28] Speaker 02:
So this is where I think the factual issue is what you take, what inference can be drawn from the facts, right?

[00:24:37] Speaker 02:
And so in this case, he did not pull his hands or secret them under his body.

[00:24:43] Speaker 02:
And that's the issue.

[00:24:44] Speaker 02:
It's like the way it's described.

[00:24:45] Speaker 04:
How would you describe it then?

[00:24:46] Speaker 02:
So he pulled his hands reflexively.

[00:24:49] Speaker 02:
He just kind of pulled his hands reflexively.

[00:24:50] Speaker 04:
Where did he pull his hands?

[00:24:52] Speaker 02:
Under his shoulders.

[00:24:53] Speaker 04:
Okay.

[00:24:54] Speaker 02:
No, there is a big difference because he was naked from the top.

[00:24:57] Speaker 04:
Can you ask, could an officer put handcuffs on him when his hands are like that?

[00:25:04] Speaker 02:
I don't know.

[00:25:06] Speaker 02:
He didn't ever try.

[00:25:07] Speaker 02:
You know, he didn't try to put handcuffs on him.

[00:25:10] Speaker 02:
He didn't have his cuffs out.

[00:25:12] Speaker 02:
Just using your common sense, you think an officer can put handcuffs on if they're like... Probably not, but I don't think that's the real issue.

[00:25:19] Speaker 02:
The issue here is would a reasonably objective officer think that he was a danger?

[00:25:24] Speaker 02:
You know, if he's pulling his hands... Or resisting, right?

[00:25:28] Speaker 04:
Or resisting.

[00:25:29] Speaker 04:
And so you agree that the jury would never get asked the question, was he resisting arrest or was he a danger?

[00:25:35] Speaker 04:
They would get the question,

[00:25:38] Speaker 04:
Would a reasonable officer perceive him as a danger or resisting?

[00:25:42] Speaker 02:
Yes.

[00:25:44] Speaker 02:
But there is a difference.

[00:25:45] Speaker 02:
I agree.

[00:25:46] Speaker 02:
Right.

[00:25:46] Speaker 02:
And so he wasn't actually resisting.

[00:25:49] Speaker 02:
He didn't actually pose a danger.

[00:25:51] Speaker 04:
I think that's probably right.

[00:25:52] Speaker 04:
Just the question is whether or not a reasonable officer would perceive them as that.

[00:25:57] Speaker 02:
Objectively.

[00:25:57] Speaker 02:
Right.

[00:25:58] Speaker 02:
And it's not the subjective belief of Rowden.

[00:26:01] Speaker 02:
It's the objective belief.

[00:26:02] Speaker 02:
And so under the circumstances, the question is, would an objectively

[00:26:08] Speaker 02:
reasonable officer or objectively reasonable belief be that he was resisting arrest or pose a danger.

[00:26:15] Speaker 02:
And there's a big difference between him pulling his arms under his body as defendant argues it, which would imply that he's going for a weapon versus pulling his arms under his shoulders, which shows just a reflexive action to the pain caused by Rowden himself jumping and driving his spine and chest into the ground.

[00:26:37] Speaker 02:
And so, again, this court's not to make that decision, but the question is, can a reasonable jury infer from that that it was not reasonable for the officer to... Given everything you said, I mean, that's completely different than what happened in Blankenship, right?

[00:26:54] Speaker 02:
No, because... I'm sorry, Blankenhorn.

[00:26:57] Speaker 02:
Blankenhorn.

[00:26:59] Speaker 02:
I don't... No, not really, because the question in Blankenhorn was,

[00:27:06] Speaker 02:
is a person who has been rendered harmless and is not resisting and is not a threat, and in this case not reasonably believed to be resisting or not reasonably believed to be a threat, can you punch him in the face when they're on the ground?

[00:27:24] Speaker 04:
In Blankenhorn they specifically said that Blankenhorn did not attempt to prevent the officers from handcuffing him.

[00:27:31] Speaker 04:
And here, you would agree, though, it would be very difficult to handcuff him if his hands are like this on the ground.

[00:27:38] Speaker 02:
Yes, it would not have been difficult, however, for the officer to place his knee in the back, pull his hand behind him, and cuff him.

[00:27:45] Speaker 02:
The reason it was difficult is that Rowden caused the difficulty by jumping into the middle of his back instead of using standard police techniques.

[00:27:55] Speaker 02:
That's probably right.

[00:27:57] Speaker 02:
So if the court does not have any other questions, I am happy to let it go.

[00:28:05] Speaker 03:
Thank you.

[00:28:06] Speaker 03:
I think we have some time for rebuttal.

[00:28:08] Speaker 02:
All right.

[00:28:17] Speaker 01:
Thank you.

[00:28:18] Speaker 01:
I just wanted to take a moment to kind of refocus because plaintiff mentioned a number of things that are

[00:28:24] Speaker 01:
sort of irrelevant in this case.

[00:28:26] Speaker 01:
Plaintiff does not have a claim based on any alleged choking that happened at any point.

[00:28:33] Speaker 01:
And this idea that plaintiff was shot at, plaintiff doesn't have a claim based on any shooting that happened during that 30 minutes and really whether or not they

[00:28:42] Speaker 01:
yelled, Sheriff's Office is irrelevant, because regardless, plaintiff was still shooting at someone.

[00:28:46] Speaker 01:
He was still a threat during that initial 30 minutes.

[00:28:49] Speaker 01:
And I think it's important, too, to remember that the district court did find that that initial pinning, that initial use of the knee, was reasonable as a matter of law.

[00:28:58] Speaker 01:
I think we've talked about how we have to know a review, so it doesn't matter.

[00:29:01] Speaker 01:
That's correct.

[00:29:02] Speaker 01:
But no one has appealed that issue.

[00:29:03] Speaker 01:
And you can't shrink the rights of the appellant without an appeal on that particular issue.

[00:29:09] Speaker 01:
find that that first use of force was unreasonable.

[00:29:12] Speaker 01:
It's limited only to the appeal in front of it, which is only about that second use of force, the strikes.

[00:29:17] Speaker 01:
And I think that the fact of the totality of those circumstances and those findings matter for the punches as well.

[00:29:24] Speaker 01:
So we ask that you reverse the district court's opinion on that matter.

[00:29:28] Speaker 01:
Thank you.

[00:29:30] Speaker 03:
Thank you both sides for the helpful argument.

[00:29:32] Speaker 03:
That case is submitted.

[00:29:33] Speaker 03:
Would you like to think about that?