[00:00:00] Speaker 04:
May it please the court, Your Honor.

[00:00:02] Speaker 04:
My name is Sandra Slayton and I am representing Appellant Dravon Ames who is actually with me today sitting in the first row.

[00:00:13] Speaker 04:
I am also here with my co-counsel Robert McWherter who is assisting me today.

[00:00:24] Speaker 04:
What we have here is a living

[00:00:30] Speaker 04:
breathing video of what happened at the end of October 2018.

[00:00:37] Speaker 04:
I apologize because I have a really bad cough.

[00:00:44] Speaker 04:
I'm just getting over an illness.

[00:00:47] Speaker 04:
Can I go to my purse and get a licensure?

[00:00:50] Speaker 04:
I'm fine myself.

[00:00:52] Speaker 04:
Sure.

[00:00:52] Speaker 03:
We'll stop the clock for a moment.

[00:01:15] Speaker 04:
There are, I mean one of the things that the district judge said was that Mr. We did not submit a declaration or an affidavit on behalf of Mr. Ames and the court concluded that he had to just look at the video and it was so contrary to

[00:01:44] Speaker 04:
our interest, it was so against us that he concluded that he took it out of the hands of the jury and said... Well, I don't know that you just looked at the video.

[00:01:54] Speaker 02:
We had declarations on the record from the officers telling us what happened from their perspective.

[00:02:04] Speaker 02:
When I started in this job, we didn't have body cam videos hardly ever.

[00:02:08] Speaker 02:
And so declarations are what there were.

[00:02:11] Speaker 02:
And if you had a declaration that was not contested, then you didn't have a genuine issue of material fact.

[00:02:20] Speaker 02:
Here we have the declarations that tell the story from the officer's perspective.

[00:02:27] Speaker 02:
There is nothing submitted to contradict that except a reference to the body cam video.

[00:02:33] Speaker 02:
But the body cam video is flat out inconclusive or doesn't say anything.

[00:02:38] Speaker 02:
to resolve or to dispute what the officers said.

[00:02:42] Speaker 02:
Your brief seems to say if the body cam does not corroborate, then there must be a dispute of fact, but that's not how it works.

[00:02:51] Speaker 02:
Something has to contradict the statements made by the officers, and I don't see anything offered on behalf of plaintiff that provides that contradiction.

[00:03:01] Speaker 04:
Well, Your Honor, if you look at the video… I did.

[00:03:06] Speaker 02:
And I got to say, it doesn't…

[00:03:08] Speaker 02:
Start off particularly well from your client who's wandering around the middle of the street, what appears to be a fairly busy street, not very responsive when asked to move to the side and expressing how exhausted he was and how he had taken something and didn't probably seem to be in a condition where he should be driving to begin with and he had run out of gas because he hadn't noticed apparently

[00:03:35] Speaker 02:
that he was out of gas.

[00:03:36] Speaker 02:
None of that suggests that the officer should have just shrugged their shoulders and left.

[00:03:41] Speaker 02:
And so they got involved in the way that the video and the statements reflect.

[00:03:48] Speaker 02:
But I don't see any evidence that creates a genuine issue of material fact in a way that contradicted the officer's statements.

[00:03:59] Speaker 04:
Well, I think if you, and thank you for looking at the video, Your Honor.

[00:04:03] Speaker 04:
In the video itself,

[00:04:05] Speaker 04:
it, Dravan Ames actually disputes what's going on when, for instance, at four minutes and 30 seconds on Officer Conklin's body cam, Dravan disputes, Officer Payne said, you know, you tried to kick me, and Dravan actually says in the video, I didn't, I didn't kick, that's not true, I didn't do it.

[00:04:33] Speaker 02:
Well, yeah, but that doesn't mean, I mean,

[00:04:36] Speaker 02:
We're looking here from the perspective of the officer and the threat that's perceived.

[00:04:42] Speaker 02:
Correct.

[00:04:43] Speaker 02:
And so the fact that the officer thinks that your client tried to kick him and your client says no, but the struggle continues, I mean it's hard not to get the sense from the video that your client was in fact resisting their efforts from the very beginning when he refused to move to the side of the road.

[00:05:05] Speaker 02:
What makes this a genuine issue of material fact?

[00:05:10] Speaker 04:
I think once, you know, you can say whatever, you know, and interpret this however you wish until Mr. Ames is on the ground.

[00:05:23] Speaker 03:
But before, I mean, before he gets on the ground, there

[00:05:27] Speaker 03:
things that have occurred that are important and significant to the choices that the officers are making.

[00:05:33] Speaker 03:
So Judge Clifton's laid out the scene, car stopped in the middle of the road, the driver's door open, a person wandering on the street, appearing to be under the influence of something, not responding to officers, requests that he move to the sidewalk, and then argues with the officers that he's not detained.

[00:05:50] Speaker 03:
I mean, we've all watched the video.

[00:05:51] Speaker 03:
I've watched it several times, mostly because it was so dark and difficult to determine what was happening.

[00:05:57] Speaker 03:
And then you argue that they couldn't lay hands on him.

[00:06:00] Speaker 03:
They couldn't touch him to try to gain control of the situation, right?

[00:06:05] Speaker 03:
And then they do try to touch him.

[00:06:06] Speaker 03:
Then there's a struggle that ensues.

[00:06:08] Speaker 03:
They end up on the ground.

[00:06:08] Speaker 03:
They end up deploying their tasers.

[00:06:11] Speaker 04:
That's true.

[00:06:12] Speaker 04:
But first and foremost, I mean, this is an excessive force case, Your Honor.

[00:06:17] Speaker 03:
So once he's on the ground... So are you agreeing that there was not excessive force to try to put their hands on him to propel him off the road?

[00:06:26] Speaker 04:
We're saying the whole thing should have gone to the jury.

[00:06:29] Speaker 04:
It wasn't, it was a dark and difficult, the body cams were dark and difficult to interpret.

[00:06:35] Speaker 04:
But however, what we really saying that first and foremost, even if you accept, you know, every point of view of the officers before they get them on the ground, at some point you hear the punches.

[00:06:52] Speaker 04:
Officer Conklin.

[00:06:54] Speaker 04:
admits that he broke his nose, you can actually hear the punches.

[00:07:00] Speaker 04:
They start tasing him.

[00:07:01] Speaker 04:
He's, I mean, a jury has to be able to see what is going on and make their own decision.

[00:07:09] Speaker 04:
Once he's on the ground, I mean, you could say, you know, he was wrong to just assuming, arguing, although we're arguing that there were many constitutional violations before, but

[00:07:22] Speaker 04:
once he's on the ground, like in Black and Horn.

[00:07:26] Speaker 02:
Did he give up at that point, or did he continue to resist?

[00:07:30] Speaker 04:
They were beating him.

[00:07:32] Speaker 02:
That's not the question I asked, is it?

[00:07:33] Speaker 02:
I asked, did he give up, or did he continue to resist?

[00:07:36] Speaker 02:
It appeared to me that he continued to resist.

[00:07:38] Speaker 02:
It's not like he said, OK, take me in, I'm yours.

[00:07:42] Speaker 02:
You can explain human nature may continue to resist, but he continued to resist.

[00:07:48] Speaker 02:
Is that disputed?

[00:07:51] Speaker 04:
It is disputed because I believe that nobody has, nobody should be subjected to having their nose broken.

[00:08:03] Speaker 03:
What you're saying is they can't, I think what you're saying is that the officers cannot use force at all, right?

[00:08:10] Speaker 03:
I mean, once they get into this tussle with him, they're in close contact, they're hitting, the bodies are hitting each other.

[00:08:17] Speaker 03:
You know, that's not ideal.

[00:08:19] Speaker 03:
Obviously, nobody wants to be in that situation, but that doesn't mean it's unconstitutional.

[00:08:23] Speaker 03:
They have a situation that they have to contain, and what I saw in the video is when Mr. Ames was down on the ground, I believe he went on the ground because of the first taser strike, and then he tried to get up.

[00:08:35] Speaker 03:
I mean, you could see him sitting up.

[00:08:38] Speaker 03:
Under Scott versus Harris, we are entitled to look at the video and draw conclusions from it.

[00:08:42] Speaker 03:
Even if you argue to us he wasn't trying to get up, we could see that he was, which means he was still engaging and, you know, Judge Clifton's use of the word resisting.

[00:08:52] Speaker 04:
I mean, I believe that like anybody would be trying to defend themselves when they were being punched and tased by police officers.

[00:09:05] Speaker 02:
Did he yell, stop, stop, I give up.

[00:09:10] Speaker 04:
Well, no, but again the jury has to decide.

[00:09:14] Speaker 02:
You can argue that the force she was trying to resist was excessive and indeed you have argued that, but so far you haven't pointed to evidence that makes that case or disputes the officer's perspective.

[00:09:28] Speaker 04:
I think this is very much like the Black and Horn case.

[00:09:33] Speaker 04:
And I Black and Horn v. City of Orange from this circuit, 485 Fed 3rd, 463.

[00:09:46] Speaker 04:
Just as in Black and Horn, just as Black and Horn alleged that the officers used excessive force against him, the same is true in our case.

[00:09:58] Speaker 04:
As this court held in Black and Horn,

[00:10:00] Speaker 04:
The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of... So what should the officers have done here?

[00:10:12] Speaker 04:
I think, I mean, all they had to do, they had him on the ground, they could have easily handcuffed him.

[00:10:19] Speaker 04:
That's a jury question.

[00:10:20] Speaker 01:
They could have easily handcuffed him?

[00:10:24] Speaker 03:
Yes, I believe so, Your Honor.

[00:10:26] Speaker 03:
But the record shows that they tased him in order to have him be on the ground.

[00:10:32] Speaker 03:
And one of the officers said they tried to apply some sort of a carotid or choke hold or something to make him lose consciousness and couldn't do it.

[00:10:40] Speaker 03:
He was thrashing around so much they couldn't even get hands on him in the right way to do that, that they couldn't get the handcuffs on him.

[00:10:46] Speaker 03:
It was not until the third officer arrived after they had deployed the taser twice.

[00:10:52] Speaker 03:
that they were able to put handcuffs on him.

[00:10:54] Speaker 03:
I mean, what are the tools that they have on hand?

[00:10:56] Speaker 03:
Verbal command, putting hands on a person, leading them, a taser, a gun, you know, it escalates and gets more intrusive and more dangerous, right?

[00:11:08] Speaker 03:
So what were they supposed to do?

[00:11:11] Speaker 03:
It seemed like it escalated from speaking with him, trying to guide him, grab him.

[00:11:16] Speaker 04:
I don't think there was a threat there in the first place.

[00:11:18] Speaker 04:
I mean, they could have, I mean,

[00:11:21] Speaker 04:
He wasn't threatening them in any way.

[00:11:23] Speaker 02:
He was wandering around the street and the night refused to leave the street.

[00:11:28] Speaker 02:
That's where it started.

[00:11:30] Speaker 02:
And at what point did he indicate compliance?

[00:11:35] Speaker 02:
At what point did he respond to their request?

[00:11:38] Speaker 04:
He suggested that they go, I mean, they were talking to him in a calm conversational manner.

[00:11:44] Speaker 02:
And he was walking around in the middle of the street, not responding to the suggestion made a couple of times by the officer.

[00:11:51] Speaker 02:
Let's move to the side and get out of the street."

[00:11:53] Speaker 02:
He didn't do that.

[00:11:56] Speaker 02:
I'm struggling to figure out at what point your client made it clear he was complying and was not resisting.

[00:12:04] Speaker 02:
I didn't see it in the video.

[00:12:06] Speaker 02:
I certainly don't see it from the officer's statements and there's no counter declaration.

[00:12:11] Speaker 04:
When you are being beaten and tased and you have your nose broken, I don't think he

[00:12:19] Speaker 04:
had, he did not deserve to have those injuries to him.

[00:12:24] Speaker 02:
The officers didn't deserve to have to go through the process that they went through, but your client refused to leave the street.

[00:12:30] Speaker 02:
So from their perspective, they didn't deserve what happened to them either.

[00:12:34] Speaker 02:
That's not a cause of action, is it?

[00:12:37] Speaker 04:
I think it is.

[00:12:37] Speaker 04:
I think this was a clearly established constitutional violation in

[00:12:45] Speaker 04:
just as it was in Blackenhorn, and I think that they were there on a, they showed up because of a traffic accident.

[00:12:56] Speaker 04:
And I think that the jury has a right to.

[00:13:00] Speaker 03:
So why didn't you submit a declaration or any sworn testimony from your client?

[00:13:06] Speaker 03:
Did you just think you didn't have to?

[00:13:07] Speaker 04:
I thought that the video was a living breathing.

[00:13:11] Speaker 03:
But the video was so inconclusive.

[00:13:12] Speaker 03:
You've seen it.

[00:13:13] Speaker 03:
You know how difficult it is to determine what was happening.

[00:13:16] Speaker 04:
It's an excessive force case.

[00:13:19] Speaker 04:
So?

[00:13:20] Speaker 03:
So that begs the question, why did you not present some evidence?

[00:13:24] Speaker 04:
always said, and even in state court, that he had no memory of the details of this.

[00:13:30] Speaker 04:
And that's one of the reasons that he took a no contest plea.

[00:13:35] Speaker 04:
And it was very difficult to get a declaration under those circumstances.

[00:13:40] Speaker 04:
But we had a video that showed punching.

[00:13:44] Speaker 02:
It shows force.

[00:13:45] Speaker 02:
It doesn't necessarily show excessive force, because it doesn't show your client complying at any point.

[00:13:54] Speaker 02:
So what are we supposed to do with it?

[00:13:56] Speaker 04:
I believe that in Black and Horn, they were confronted with the same thing.

[00:14:00] Speaker 04:
I think the question is, does a citizen have a right to say

[00:14:08] Speaker 04:
that there's excessive force used on him.

[00:14:11] Speaker 03:
To say, I'm not detained.

[00:14:12] Speaker 03:
You can't detain me.

[00:14:13] Speaker 03:
Give me my ID.

[00:14:14] Speaker 03:
I'm leaving.

[00:14:14] Speaker 03:
No.

[00:14:15] Speaker 03:
So the ruling university is probably one of the busiest intersections in the entire city.

[00:14:19] Speaker 03:
And fortunately, this was in the middle of the night, and there was not a lot of traffic around.

[00:14:25] Speaker 03:
But you hear the officer saying quite clearly, we need to get on the road.

[00:14:27] Speaker 03:
I don't want to get run over.

[00:14:28] Speaker 03:
I mean, this was a situation that was fraught with some peril for Mr. Ames and for the officers and for people driving by.

[00:14:35] Speaker 04:
I just don't believe that it

[00:14:38] Speaker 04:
that it allowed my client to be brutalized.

[00:14:42] Speaker 04:
And I think what happened here- Brutalized.

[00:14:43] Speaker 03:
So I wondered when I read your claim that this was brutal if you'd watch the video.

[00:14:49] Speaker 04:
I did, several times.

[00:14:51] Speaker 03:
Okay, so you can't see anything brutal.

[00:14:53] Speaker 03:
They used force to take him into custody because they had to.

[00:14:58] Speaker 04:
He was brutalized.

[00:14:59] Speaker 04:
That's what I think happened.

[00:15:01] Speaker 04:
And I think that there was excessive force used

[00:15:06] Speaker 04:
They broke the man's nose.

[00:15:08] Speaker 04:
There was no reason for them to tase him a second time.

[00:15:13] Speaker 03:
Well, and they testify under oath that he tried to, one of them that he tried to kick him, that he tried to claw an officer's face, and then he reached for the gun.

[00:15:20] Speaker 03:
So you say all that didn't happen, but he denied it, but he didn't remember anything.

[00:15:27] Speaker 03:
and you didn't provide a declaration.

[00:15:29] Speaker 04:
Well, he denied it in real time in the video.

[00:15:33] Speaker 03:
I heard him say he didn't try to grab for the gun.

[00:15:35] Speaker 04:
Yes.

[00:15:36] Speaker 03:
But then the officer testifies that he did, so we have undisputed testimony that that's what happened.

[00:15:41] Speaker 04:
But it wasn't on the video, Your Honor.

[00:15:43] Speaker 03:
That doesn't matter.

[00:15:44] Speaker 03:
The video doesn't have to support what the officers say.

[00:15:50] Speaker 03:
If it's contrary to what they're saying, yes, it would help you tremendously, but it's not because it doesn't show anything.

[00:15:55] Speaker 04:
Well, I think if the video

[00:15:58] Speaker 04:
does not, I mean the video absence.

[00:16:02] Speaker 03:
I think the fundamental problem that we're having or I'm having with your argument is you seem to think that the summary judgment standard is something different than what it is and that the officers have to come forward with video that supports their sworn testimony.

[00:16:14] Speaker 03:
They don't.

[00:16:15] Speaker 03:
As Judge Clifton pointed out, for decades we never even had body cam footage and we all know from seeing it pretty regularly that often it's not helpful.

[00:16:22] Speaker 03:
So that doesn't mean that every case goes to trial.

[00:16:26] Speaker 04:
Well, I believe that this case of what happened to Mr. Ames shocks the conscience of anyone watching that video.

[00:16:36] Speaker 04:
That's what I believe.

[00:16:37] Speaker 02:
Well, we watched the video.

[00:16:40] Speaker 03:
Okay.

[00:16:40] Speaker 03:
We are over time.

[00:16:41] Speaker 03:
I know you wanted to reserve a couple minutes.

[00:16:43] Speaker 03:
I'll give you a couple minutes.

[00:16:44] Speaker 03:
Thank you.

[00:17:01] Speaker 00:
It pleased the court.

[00:17:03] Speaker 00:
My name is Sarah anchors.

[00:17:04] Speaker 00:
I'm here today representing the police city of Tempe and his officers pain and Conklin.

[00:17:11] Speaker 00:
We respectfully request that the court for affirm the district court's decision as well as the order for costs.

[00:17:20] Speaker 00:
The undisputed facts support the district's court determination that officers did not use excessive force in arresting appellant.

[00:17:28] Speaker 00:
Those facts are drawn from the officer's undisputed testimony in depositions, as well as the body worn camera, which I agree it has a clear view at times, but once the struggle begins, it is at times hard to see what is going on for that like 40, 60 seconds during that time.

[00:17:50] Speaker 00:
The totality of the circumstances that the officers faced are that Mr. Ames was wandering around in the middle of the street.

[00:17:58] Speaker 00:
It's pre-dawn hours, but it's a very busy intersection.

[00:18:01] Speaker 00:
It's going to get light soon.

[00:18:03] Speaker 00:
It's going to get really busy.

[00:18:04] Speaker 00:
And even on the body worn camera, you can see cars whizzing by.

[00:18:08] Speaker 00:
And so it was important for the officers to, for their safety, for Mr. Ames' safety, for other people's safety, to get him out of the street.

[00:18:16] Speaker 00:
And that's why they directed him five times, each time more forcefully,

[00:18:21] Speaker 00:
out of the street, and he refused to do so.

[00:18:24] Speaker 00:
He failed to comply and did not do so.

[00:18:27] Speaker 00:
It was dark.

[00:18:29] Speaker 00:
And this was just after a car collision.

[00:18:32] Speaker 00:
Mr. Ames was babbling.

[00:18:35] Speaker 00:
He was talking about having done a dab, inhaling THC, as the officers testified.

[00:18:41] Speaker 00:
They directed him several times.

[00:18:43] Speaker 00:
He didn't comply with getting on the sidewalk.

[00:18:46] Speaker 00:
And so at that point, Officer Conklin went with Mr. Ames over to Mr. Ames' car while the other officer went to go talk with the other person who had been involved in the collision.

[00:18:57] Speaker 00:
Even while they're standing by that open car door, it's been called the A-frame, Mr. Ames was not under the officer's control at that point of time.

[00:19:09] Speaker 00:
He said he was going to go.

[00:19:10] Speaker 00:
He asked for his license.

[00:19:12] Speaker 00:
He was going to try and leave.

[00:19:15] Speaker 00:
It's not actually established in the record that the car had run out of gas and could not go.

[00:19:19] Speaker 00:
He had said he was going to get gas, but there's not, at that point, it's not in the record.

[00:19:25] Speaker 00:
The officer had no reason to believe that Mr. Ames could not get in that car and drive off at that point.

[00:19:32] Speaker 00:
When Officer Ames told

[00:19:34] Speaker 00:
When Officer Conklin told Mr. Ames that he was not free to leave, Mr. Ames said, no, I'm not detained.

[00:19:39] Speaker 00:
I'm not under arrest.

[00:19:41] Speaker 00:
Mr. Ames was fully aware that the next step was that the officer was going to try and handcuff him.

[00:19:45] Speaker 00:
They were going to detain him.

[00:19:46] Speaker 00:
They were going to try and arrest him.

[00:19:49] Speaker 00:
And then when they started to handcuff him, he was verbally resisted to death.

[00:19:53] Speaker 03:
Before they did that, did they give him any sort of warning?

[00:19:55] Speaker 03:
So I can see what you're describing that occurred on, that's shown in the video.

[00:20:00] Speaker 03:
And then it appears that the officer

[00:20:03] Speaker 03:
grabs from Mr. Ames' arm, and then the struggle ensues.

[00:20:06] Speaker 03:
But I don't hear him say, please turn around, put your hands behind your back.

[00:20:10] Speaker 03:
I'm going to put handcuffs on you.

[00:20:11] Speaker 03:
You're under arrest.

[00:20:11] Speaker 03:
I don't hear any of those warnings or any of that happen.

[00:20:14] Speaker 03:
Why didn't that happen?

[00:20:17] Speaker 00:
So in terms of trying to put him in handcuffs, at that point, the officers were very, as the district court pointed out, very calmly, as you can see in the video, taking his hand.

[00:20:28] Speaker 00:
This is not an aggressive move.

[00:20:30] Speaker 00:
And Mr. Ames was aware of what was going to go on.

[00:20:33] Speaker 00:
He said, don't do that to me.

[00:20:35] Speaker 00:
He pulled his arm away.

[00:20:36] Speaker 00:
And then Officer Payne took Mr. Ames' other wrist, and Mr. Ames again pulled his arm away.

[00:20:42] Speaker 00:
So he was quite aware of what was happening and the totality of the circumstances in terms of them trying to handcuff him.

[00:20:50] Speaker 00:
It's not in the record exactly why they chose not to give him a warning at that point.

[00:20:58] Speaker 00:
warnings are not necessarily, are not, are not acquired.

[00:21:02] Speaker 00:
It's part of their totality.

[00:21:03] Speaker 00:
The circumstances in the Graham Factors to determine whether or not this was excessive force.

[00:21:08] Speaker 00:
And it's been quite clear from, from various case law that handcuffing is a normal part of the custodial process.

[00:21:18] Speaker 00:
And even if, even if that is a normal part of the custodial process and in order to be able to get him out of the street, this is, this was what the officers were going to have to do.

[00:21:28] Speaker 01:
The officers punch him in the face and punch him in the ribs.

[00:21:32] Speaker 01:
Is that standard police procedure?

[00:21:34] Speaker 00:
Well, it's not standard.

[00:21:37] Speaker 00:
It's a totality of the circumstance.

[00:21:39] Speaker 01:
Sure, but I mean, even deadly force is standard procedure in certain circumstances.

[00:21:43] Speaker 01:
That is, police are trained to do certain things, including the use of deadly force in certain circumstances.

[00:21:48] Speaker 01:
Are the police trained to issue punches as part of their protocol?

[00:21:54] Speaker 00:
That is one of the ways when you have a struggling, physically resistant suspect in order to try and gain compliance.

[00:22:05] Speaker 01:
And are the police trained in this?

[00:22:07] Speaker 01:
Are they trained where to punch?

[00:22:09] Speaker 01:
Is it more disabling to hit somebody in the ribs than to hit them in the face?

[00:22:12] Speaker 00:
That goes more, I think, to a Monell claim.

[00:22:21] Speaker 00:
that wasn't something the district court reached in terms of looking at the merits of the Monell claim.

[00:22:26] Speaker 00:
But they are trained in terms of how to punch, how to get a resistant suspect under control.

[00:22:33] Speaker 01:
Yeah, I'm just curious as to whether punching is part of that training.

[00:22:38] Speaker 00:
Yes, I believe punching is part of it.

[00:22:39] Speaker 01:
And is that regarded as a lesser means than using a taser?

[00:22:44] Speaker 00:
So that is, I believe it's an intermediate use of force, similar to the takedown.

[00:22:50] Speaker 00:
You know, Officer Conklin had tried to do something that would not involve punching, right?

[00:22:56] Speaker 00:
He had tried to do this carotid hold, which is a way to render someone unconscious by placing a hand on their neck.

[00:23:05] Speaker 00:
I don't know exactly who did it.

[00:23:07] Speaker 00:
He had tried to do that, but as he was unable to get his arm around, he tried twice.

[00:23:14] Speaker 00:
And so that would have avoided these punches.

[00:23:17] Speaker 00:
But when that did not work, he used the punch because then Mr. Ames, as Officer Conklin testified, was reaching towards his eye and trying to, obviously, if you hurt someone's eye, that's a serious injury that can affect an officer's ability to continue taking a person into custody.

[00:23:37] Speaker 03:
So after they have this struggle, they punch him, they deploy the Taser the first time.

[00:23:44] Speaker 03:
Why couldn't a jury conclude that deploying the Taser a second time was excessive force?

[00:23:49] Speaker 03:
He was already on the ground.

[00:23:51] Speaker 00:
Correct, Your Honor.

[00:23:52] Speaker 00:
He was already on the ground.

[00:23:54] Speaker 00:
And the two officers had him at Taser Point at that time.

[00:23:57] Speaker 00:
And Officer Payne testified at that point.

[00:23:59] Speaker 00:
You can hear him say it on the video.

[00:24:00] Speaker 00:
My thumb is jammed up.

[00:24:01] Speaker 00:
You can see him wince on the video.

[00:24:03] Speaker 00:
So we have one officer injured.

[00:24:05] Speaker 00:
We have two officers who are standing in the middle of the street with a suspect who is just one, who is just engaged in very strong, vigorous physical resistance to being taken into custody.

[00:24:17] Speaker 00:
And so they're telling him arms out, arms out, stop moving.

[00:24:20] Speaker 00:
They want him to lie flat and put his arms out.

[00:24:24] Speaker 00:
It's quite clear that those are the directions that we get in.

[00:24:26] Speaker 00:
And you can see on the video, and as both the officers testify, he wasn't doing that.

[00:24:30] Speaker 00:
He was pushing himself up.

[00:24:32] Speaker 00:
He was up on his elbows.

[00:24:33] Speaker 00:
He was looking back.

[00:24:34] Speaker 00:
And as Officer Payne testified, he knew that a suspect moving around a lot is one way to dislodge the taser prongs.

[00:24:43] Speaker 00:
And so that would raise, that would mean that Officer Payne wouldn't be able to use his taser on the suspect.

[00:24:50] Speaker 00:
And so it was a one second taser deployment at that point.

[00:24:54] Speaker 00:
And there is not case law.

[00:24:56] Speaker 00:
Appellant has not provided case law saying that that is excessive force to use that for one second.

[00:25:04] Speaker 00:
And that was the last use of force, as agreed by Appellant.

[00:25:11] Speaker 00:
And after that, once the third officer was there, they were able to get him handcuffed, and there was no further use of force.

[00:25:27] Speaker 00:
Going back to the video, in terms of Appellant's points,

[00:25:33] Speaker 00:
Appellant had said that Mr. Ames didn't try and kick, didn't try and resist, but that's not sworn testimony.

[00:25:43] Speaker 00:
The only sworn testimony is the deposition testimony from the officers, as well as from the body worn camera, which at times is clear enough to corroborate what the officers testified.

[00:25:55] Speaker 00:
At other times it doesn't conflict with what the officers testified, which is really the standard

[00:26:02] Speaker 00:
that the courts have stated, as in Scott, is that it has to be actually conflicting in order for there to be a material dispute fact.

[00:26:11] Speaker 00:
In terms of Blankenhorn, this case is not similar to Blankenhorn.

[00:26:17] Speaker 00:
In Blankenhorn, there was controverting testimony from Blankenhorn himself.

[00:26:24] Speaker 00:
Also in that case, the court concluded that the officer's use of force

[00:26:29] Speaker 00:
involved gang tackling a nonviolent suspect where the only alleged crime was a minor trespass.

[00:26:36] Speaker 00:
It was excessive because they never tried to handcuff the plaintiff before they gang tackled him.

[00:26:41] Speaker 00:
And that's certainly not the case here.

[00:26:43] Speaker 00:
The officers did try to calmly handcuff him and he resisted that strongly.

[00:26:57] Speaker 00:
As far as the kick backwards to Officer Payne, the body-worn camera does show this kick.

[00:27:03] Speaker 00:
It's not as clear, but it is as one might hope, right, if there was night vision on the body-worn camera.

[00:27:11] Speaker 00:
But you can see the bend of the knee and then the heel of the foot facing Officer Payne in the attempt to kick back.

[00:27:19] Speaker 00:
And there's, again, no contradictory evidence.

[00:27:23] Speaker 00:
Each of the officers' use of force, each of the escalation of force was directly in response to Mr. Ames' continued vigorous physical resistance to being handcuffed.

[00:27:33] Speaker 00:
And that physical resistance posed a danger to the officer's safety and thwarted these officers' attempts to use less intrusive methods of force to restrain Mr. Ames.

[00:27:52] Speaker 00:
Even, and I think we talked about this, at the five second, after that five second laser deployment, Mr. Ames, the arrest was not complete.

[00:28:01] Speaker 00:
Mr. Ames was not completely within the control of the officers.

[00:28:05] Speaker 00:
His liberty of movement was not completely interrupted and restricted by the police.

[00:28:11] Speaker 00:
So he wasn't within that complete control.

[00:28:12] Speaker 00:
He was not handcuffed yet.

[00:28:14] Speaker 00:
And so there was still a risk of him getting up, fleeing, of again, fighting with the officers.

[00:28:24] Speaker 00:
So officers Payne and Conklin are entitled to qualified immunity, as the district court found, because they use reasonable force in the totality of the circumstances.

[00:28:33] Speaker 00:
This is quite the quintessential situation that Graham discussed.

[00:28:36] Speaker 00:
These officers are making split-second decisions about how to handcuff Mr. Ames, how to get this situation under control, and there's a tense, uncertain, rapidly evolving situation.

[00:28:47] Speaker 00:
Furthermore, as the District Court found, the summary judgment is appropriate on the second prong of qualified immunity because Mr. Ames has not identified any precedent where the officers were acting under similar circumstances and were found to have violated the Fourth Amendment.

[00:29:01] Speaker 00:
Unless there's any further questions from the Court, I would just urge this Court to respectfully affirm the summary judgment for athletes.

[00:29:09] Speaker 03:
I do have a question for you.

[00:29:10] Speaker 03:
Yes.

[00:29:11] Speaker 03:
The issue that we haven't touched on yet was the award of cost.

[00:29:17] Speaker 03:
Mr. Ames responded to the motion for cost and indicated that that award of cost would render him indigent.

[00:29:24] Speaker 03:
And there's information in the record that he worked for Amazon.

[00:29:29] Speaker 03:
He told the officers that night, I don't know if it's a part-time employment, but it seemed like there may have been enough for the district court to conclude that paying those costs would, that it would just be too much money for Mr. Ames.

[00:29:43] Speaker 03:
Why do you argue we should affirm that award of cost?

[00:29:49] Speaker 03:
Why shouldn't we just conclude that there was enough to dispute the cost and it should have been lowered more than it was?

[00:29:57] Speaker 00:
So, Your Honor, first the declaration by Mr. Ames, I do not believe this was actually signed, but on its, I can go back and look at that.

[00:30:10] Speaker 00:
I might be wrong about that one.

[00:30:12] Speaker 00:
But on its face, I mean, here what we need is that it was abuse of discretion for the district court to award costs.

[00:30:19] Speaker 00:
So it's not that, oh, he could have denied the request for costs, but more that it was an abuse of discretion, which is quite the higher standard for him to have granted costs.

[00:30:33] Speaker 00:
He had some, there were some in the declaration, there were some broad

[00:30:39] Speaker 00:
statements about I work a temporary job for an employment agency, which doesn't sound like Amazon.

[00:30:44] Speaker 00:
I don't own property.

[00:30:46] Speaker 00:
But he didn't have the specifics that the courts have said are necessary in order to demonstrate that he was indeed indigent.

[00:31:00] Speaker 00:
And so it was, we believe it was within the discretion of the court to grant the request for costs.

[00:31:09] Speaker 03:
Thank you.

[00:31:11] Speaker 03:
There are no further questions.

[00:31:14] Speaker 03:
Ms.

[00:31:16] Speaker 03:
Slayton, I said you could have a couple of minutes.

[00:31:26] Speaker 04:
Well, indeed, there was no warning before they

[00:31:37] Speaker 04:
tried to handcuff Mr. Ameser, took him down.

[00:31:43] Speaker 04:
And there was no clear, there wasn't anything clear in the video, and it is disputed, that they chose to take him down.

[00:31:51] Speaker 04:
I mean, this was an intentional act that they chose to do.

[00:31:55] Speaker 04:
It's not like they tried, like in Black and Horn, they didn't try to handcuff him first.

[00:32:02] Speaker 04:
And then they just didn't, it's very,

[00:32:06] Speaker 04:
messy and ambiguous.

[00:32:08] Speaker 04:
They just took him down and started to abuse him.

[00:32:15] Speaker 03:
Doesn't the video show them grabbing his arm trying to get his arm under control?

[00:32:20] Speaker 04:
It was simultaneous.

[00:32:22] Speaker 04:
They grabbed his arm and they took him down.

[00:32:25] Speaker 04:
Officer Payne threw the wallet on the car and the two of them went at it.

[00:32:31] Speaker 04:
I think a reasonable jury could conclude that.

[00:32:35] Speaker 04:
They did hit him in the face.

[00:32:37] Speaker 04:
They said that Officer Conklin said that it was because he was trying to scratch his eyes, but Mr. Ames was wearing gloves, and there was nothing on Officer Conklin's face.

[00:32:52] Speaker 04:
There were no scars.

[00:32:53] Speaker 04:
There was nothing.

[00:32:56] Speaker 04:
The carotid choke hold, that's not an acceptable method of, I mean... Based on what?

[00:33:05] Speaker 03:
Did you review their training materials?

[00:33:07] Speaker 04:
Yes, we did, and that was definitely an issue, and we argued it.

[00:33:12] Speaker 04:
A carotid chokehold is not acceptable.

[00:33:15] Speaker 04:
People die from carotid chokeholds.

[00:33:18] Speaker 04:
He shouldn't even have been doing that.

[00:33:20] Speaker 04:
But they didn't.

[00:33:23] Speaker 03:
They attempted it, but it didn't happen.

[00:33:24] Speaker 03:
So how does that become excessive force?

[00:33:27] Speaker 03:
Just the attempt?

[00:33:28] Speaker 04:
Yes, absolutely.

[00:33:34] Speaker 04:
He testified, I mean, as far as Officer Payne's thumb, he testified that he didn't know where he got that injury, and we argued that, and that's even the court acknowledged that.

[00:33:50] Speaker 04:
He finally did say, you know, I'm sorry, I'm sorry, I'm sorry, and he did submit.

[00:33:57] Speaker 04:
Maybe he didn't say those words, but he said it a lot, and he was on the ground, and he was still tased again.

[00:34:04] Speaker 04:
And we do have cases from the Ninth Circuit that talk about the multiple attempts of tasing being an excessive force.

[00:34:18] Speaker 04:
And in Black and Horn, maybe he did file an affidavit, but the court relied on the video.

[00:34:28] Speaker 04:
And the video here does present disputed issues to fact that I believe

[00:34:35] Speaker 04:
that a jury could conclude that this kind of absolute brutalization, and it was brutalization, that a reasonable jury could conclude that no individual should have to suffer that brutalization.

[00:34:51] Speaker 04:
Mr. Ames was not holding a gun.

[00:34:53] Speaker 04:
He wasn't threatening them.

[00:34:56] Speaker 04:
It was a minor crime.

[00:34:57] Speaker 04:
All the grand factors were there, and I believe that

[00:35:03] Speaker 04:
this case should have gone to a jury and that this was absolutely excessive force under the United States Constitution.

[00:35:12] Speaker 03:
All right.

[00:35:12] Speaker 03:
Thank you.

[00:35:13] Speaker 03:
I think we have your argument.

[00:35:15] Speaker 03:
And we'll take this case under submission and we are adjourned for the day.

[00:35:19] Speaker 03:
Thank you, counsel, for your arguments.