[00:00:00] Speaker 00:
May it please the court?

[00:00:02] Speaker 00:
My name is Paul Smith and I represent the plaintiffs appellants below, Aaron Lorette and the surviving children of Vincent Burton, Tristan Burton and Brandon Burton.

[00:00:13] Speaker 00:
May I reserve two minutes, please?

[00:00:16] Speaker 01:
The last group didn't do a very good job of preserving, but we'll try.

[00:00:21] Speaker 00:
Thank you, Your Honors.

[00:00:24] Speaker 00:
What I'd like to point out to the court is that the district judge below disregarded monumental precedent that this circuit has issued when it comes to wrongful death or death situations where civilians encounter the police.

[00:00:39] Speaker 00:
And unfortunately, in those situations, both in Scott v. Heinrich, Hopkins v. Andaya on-bounce decisions by the Ninth Circuit, Ting versus the United States, this court has always pronounced that in a death situation involving a civilian encountering the police, the court must carefully scrutinize the officer's story, must carefully review the medical records.

[00:01:03] Speaker 04:
What evidence do you find in the record

[00:01:05] Speaker 04:
that indicates any inconsistencies in the officer's accounts of the event.

[00:01:10] Speaker 00:
I find that in the statement of Officer Isotani.

[00:01:14] Speaker 00:
So when Officer Isotani was deposed, and we cite to his deposition in the record, he stated that he did not see Vincent Burton being uncooperative when he was being removed from the police vehicle.

[00:01:29] Speaker 02:
But he didn't see, he also said, I think, that he didn't see most of what happened.

[00:01:34] Speaker 00:
It does appear that he came on the senior honor at the point in time when Officer Watkins was taking Mr. Burton out of the patrol car.

[00:01:44] Speaker 04:
So what I'm asking for is the inconsistency, though, is what I'm asking.

[00:01:48] Speaker 04:
What is inconsistent with the other officers?

[00:01:52] Speaker 00:
The inconsistency from Officer Esotani's version of what he observed was he does not indicate any kind of shoving of Officer Watkins by Mr. Burton.

[00:02:03] Speaker 00:
Officer Isotani also doesn't say that Mr. Burton, who was handcuffed from behind, that somehow now had his handcuffs in front.

[00:02:12] Speaker 00:
And that's significant, Your Honor, because when Mr. Burton... Excuse me, I didn't think his testimony included either one of those.

[00:02:25] Speaker 00:
He did not say that Mr. Burton was handcuffed in the front.

[00:02:30] Speaker 02:
Well, he didn't say that he was handcuffed from behind either.

[00:02:34] Speaker 02:
That's what I'm getting at.

[00:02:35] Speaker 02:
I think he didn't say one way or the other.

[00:02:37] Speaker 00:
My recollection, Your Honor, from his testimony is that initially when Mr. Burton was arrested at another location about five minutes from the Honoka'a police station, he was handcuffed behind and he was seat belted in the vehicle.

[00:02:50] Speaker 00:
The significance, I think, of the story from Officer Watkins that when they arrived at the Honoka'a police station, now Mr. Burton was handcuffed in the front.

[00:03:01] Speaker 00:
The significance of that is when he gets body slammed by the 290-pound Officer Watkins to the ground, suffering multiple rib fractures, if he is handcuffed from behind,

[00:03:14] Speaker 00:
That is the kind of force that this court has identified in Darol and other cases, which if not lethal force, is at least force that is capable of inflicting serious bodily injury, which may result in death.

[00:03:29] Speaker 00:
And the significance of that, Your Honors, is that there has to be a strong governmental interest for the government to use that level of force, which is simply not here.

[00:03:42] Speaker 01:
Mr. Burton's statement, plaintiff's only site to Officer Isotani.

[00:03:53] Speaker 01:
Is that correct?

[00:03:54] Speaker 01:
That was my reading.

[00:03:55] Speaker 00:
I apologize, Your Honor.

[00:03:56] Speaker 00:
I'm not sure I follow Your Honor's question.

[00:03:57] Speaker 01:
Plaintiff's only site to Officer Isotani's deposition to support this assertion that he was piled, drive, or slammed into the ground.

[00:04:09] Speaker 00:
With all due respect, Your Honor, there are other elements in the record which corroborate that that occurred.

[00:04:14] Speaker 01:
Okay, tell me.

[00:04:15] Speaker 01:
Do you agree that you only cite Isotani?

[00:04:18] Speaker 01:
I do not.

[00:04:20] Speaker 01:
Well, Isotani, in terms of what he said,

[00:04:23] Speaker 01:
I don't know that it supports that because he doesn't say that.

[00:04:29] Speaker 01:
He never uses the words or describes Officer Watkins' bear hug or fall maneuver.

[00:04:35] Speaker 00:
He does.

[00:04:36] Speaker 00:
Officer Yusufhany describes how Officer Watkins picked up Burton in a bear hug.

[00:04:43] Speaker 00:
He does say that.

[00:04:44] Speaker 02:
He doesn't say picked him up.

[00:04:46] Speaker 02:
He said, I observed Officer Watkins to grab a hold of Mr. Burton from behind by wrapping two arms, two of his arms.

[00:04:53] Speaker 02:
That's an interesting location.

[00:04:56] Speaker 02:
Around Mr. Burton, it looked like he attempted to turn Mr. Burton towards me for my assistance and at that time they both fell.

[00:05:05] Speaker 02:
It looked like Officer Watkins fell onto Mr. Burton.

[00:05:09] Speaker 02:
That's what he says.

[00:05:10] Speaker 02:
He doesn't say anything about body slamming or picking up or any of that.

[00:05:15] Speaker 00:
So there's another element in the record.

[00:05:16] Speaker 01:
Do you agree with that?

[00:05:18] Speaker 00:
I agree with what was just stated.

[00:05:19] Speaker 01:
So tell me what's the other element in the record because I'm searching for it.

[00:05:23] Speaker 00:
The autopsy report of Dr. Lindsey Harle includes the admission of a party opponent, which is the admission of Officer Watkins where Watkins says

[00:05:32] Speaker 00:
that he leg swept out Vincent Burton and took him to the ground.

[00:05:38] Speaker 00:
So that Officer Watkins statement, and incidentally, the county downplays that in their briefing.

[00:05:44] Speaker 00:
They say, oh, it was a leg trip maneuver, tried to make it seem like, oh, it was just a little, kind of like a little trip by this 290-pound box.

[00:05:50] Speaker 01:
Is this what Officer Watkins told the medical examiner that?

[00:05:53] Speaker 00:
The medical examiner included in her autopsy report Officer Watkins' police statement.

[00:06:00] Speaker 00:
So it is a double hearsay, but both are fully admissible.

[00:06:04] Speaker 00:
The autopsy report is admissible under Beechcraft as a government record or report.

[00:06:07] Speaker 00:
Officer Watkins' statement is fully admissible as a statement of a party opponent.

[00:06:12] Speaker 01:
And this leg maneuver that is being captured?

[00:06:15] Speaker 00:
Leg sweep.

[00:06:17] Speaker 00:
So if the court was to look at exhibit 2ER232, which is the autopsy report, the court will find the recitation of what Officer Watkins said that he did, which was a leg sweep maneuver, which, incidentally, is contrary to the way the county portrays what Officer Watkins does, trying to sanitize his actions for the court.

[00:06:38] Speaker 02:
Well, I think they're relying on his declaration.

[00:06:41] Speaker 02:
Exhibit E, page 6, which describes what he did.

[00:06:47] Speaker 02:
But time is short and I'd like to ask you, if I may, the other half of qualified immunity and that is

[00:06:57] Speaker 02:
a similar case that would have put any reasonable officer on notice that he couldn't bear hug this person and fall on top of him.

[00:07:08] Speaker 02:
And I found nothing that was even remotely similar.

[00:07:12] Speaker 02:
And I wonder if you can point me to something that you think is.

[00:07:18] Speaker 00:
Your Honor, the key distinction here, which the county ignores in all of its arguments in its opening brief, excuse me, answering brief, is that Mr. Burton was handcuffed.

[00:07:27] Speaker 00:
And there's abundant authority in the Ninth Circuit, the United States Supreme Court, that mistreating a handcuffed prisoner, using physical force on someone who's already handcuffed- Okay, what is the case on which you- Graham versus Connor.

[00:07:40] Speaker 00:
In Graham, a diabetic patient, a diabetic individual was handcuffed and thrown into a car.

[00:07:46] Speaker 00:
There were other elements of excessive force as well, or mistreatment, but the court – United States Supreme Court in Graham said that that is quintessential excessive force under the circumstances, where you have someone who's defenseless and handcuffed.

[00:08:01] Speaker 00:
And incidentally, the cases that we relied on, where you had a handcuffed person that was thrown to the ground or was mistreated or had their head banged into something while they were handcuffed, both Comfort v. Town of Pittsfield

[00:08:15] Speaker 00:
and I believe it's the McLean case which we cite.

[00:08:17] Speaker 02:
Comfort is the one, the district court in Maine.

[00:08:20] Speaker 00:
That is correct.

[00:08:21] Speaker 02:
And that one, the person ended up being slammed into the wall multiple times I think before he was injured.

[00:08:30] Speaker 00:
So what I would submit to the court is that the

[00:08:33] Speaker 00:
appropriate factual analysis here in terms of comparability is the mistreatment of a handcuffed prisoner.

[00:08:41] Speaker 00:
Not so much the leg sweeping, but the fact that you're taking someone who's handcuffed and defenseless and causing them to be either thrown or hurled to the ground.

[00:08:52] Speaker 01:
Well, but I'm just trying to figure out what should Officer Watkins had done, okay?

[00:08:58] Speaker 01:
Because you have someone who had tried to flee twice.

[00:09:04] Speaker 01:
coming out of the backseat and it looks like he's about to flee again.

[00:09:10] Speaker 01:
And there's sort of a split second decision that Officer Watkins has to make to prevent him from fleeing.

[00:09:19] Speaker 01:
Trying to look at the facts in the light most favorable to the plaintiff, right?

[00:09:24] Speaker 01:
But that record is a bit murky because we have

[00:09:31] Speaker 01:
Mr. Burton's statements, which we have to look at carefully, but we also have to look at the record.

[00:09:38] Speaker 01:
And I don't see Officer Asatani contradicting what Officer Watkins said.

[00:09:45] Speaker 01:
Officer Watkins apparently grabbed him and then fell to the ground.

[00:09:52] Speaker 01:
Let's say it's the leg sweep.

[00:09:54] Speaker 01:
Does that constitute

[00:09:57] Speaker 01:
unreasonable force and then what is the case and you're saying Graham because the Graham factors if you apply those to here I think someone could also come out the other way.

[00:10:06] Speaker 00:
I see your honor's point.

[00:10:07] Speaker 00:
I would submit though that this all needs to be considered under the standard of the Federal District Court on summary judgment which is that there were genuine issues of material fact when the facts are interpreted in the light most favorable to the party opposing the motion.

[00:10:21] Speaker 04:
Was there an issue about him running or not?

[00:10:23] Speaker 04:
I guess that's the question I came down to.

[00:10:26] Speaker 00:
Yes, Your Honor.

[00:10:27] Speaker 00:
And according to Watkins, he seems to suggest that Mr. Burton seemed to be taking off, and I think he claims that Mr. Burton said, I'm out of here.

[00:10:36] Speaker 04:
So is there anything in the record that's inconsistent with that?

[00:10:39] Speaker 00:
Officer Isotani's, if you look at Officer Isotani's deposition testimony, he does not corroborate that Burton was fleeing.

[00:10:46] Speaker 00:
He simply says that Mr. Burton took one step.

[00:10:49] Speaker 00:
He took a step.

[00:10:50] Speaker 00:
That doesn't justify using force that ultimately cost Mr. Burton his life.

[00:10:56] Speaker 00:
And that's where the government interest here is minimal.

[00:10:59] Speaker 00:
And we had an expert to testify that there were lesser force alternatives that Officer Watkins failed to employ.

[00:11:06] Speaker 00:
He could have re-handcuffed Mr. Burton.

[00:11:09] Speaker 00:
He could have used the pepper spray.

[00:11:11] Speaker 00:
He could have waited for Officer Isotani instead of initially on his own taking this person out of the police vehicle without any backup.

[00:11:20] Speaker 00:
So we had an expert report and the evidence was admissible because under HRE 702,

[00:11:26] Speaker 00:
Experts are allowed to rely on the type of evidence that would support and form a basis of their opinions, including the medical records and the x-ray reports showing that he suffered five rib fractures.

[00:11:40] Speaker 00:
Contrary to Scott V. Heinrich, the federal district judge disregarded all the medical evidence.

[00:11:45] Speaker 00:
This court says the court must look at the medical evidence, must look at the

[00:11:51] Speaker 00:
indication of how severe the injuries were.

[00:11:53] Speaker 00:
And here we had five rib fractures.

[00:11:55] Speaker 00:
I know there's an issue of fact.

[00:11:57] Speaker 00:
They claim that he sustained the rib fractures after May 8, when he was released from police custody.

[00:12:03] Speaker 00:
But the significance of the rib fractures is that if he did suffer five rib fractures, that indicates the quantum force that was used, which our expert says there were lesser alternatives.

[00:12:13] Speaker 00:
So his opinions, the expert opinions, went up.

[00:12:15] Speaker 04:
Mr. Burton also testified that he was beaten.

[00:12:17] Speaker 00:
That isn't even your theory, as I understand it.

[00:12:27] Speaker 02:
Your theory is that he was, quote, body slammed to the ground, not that he was beaten.

[00:12:32] Speaker 00:
Well, Your Honor, both are true.

[00:12:34] Speaker 02:
We are dealing with a situation where... That's, I think, a new theory that I didn't see in your papers, because as I understand it, you're saying that the action of Officer Watkins was deliberate and he slammed him to the ground, but there wasn't a mention of a beating.

[00:12:52] Speaker 00:
There is, Your Honor.

[00:12:53] Speaker 00:
We did cite to the medical records.

[00:12:55] Speaker 02:
Well, that's in the medical record, but separately.

[00:12:57] Speaker 00:
We argued that in our brief and in our concise statement of material facts to the Federal District Court.

[00:13:02] Speaker 00:
We actually included Mr. Burton's statements to his wife that he was kicked and beaten on his sides prior to getting to the police station.

[00:13:11] Speaker 00:
That is in the record and our expert is also recapitulated that in his expert report.

[00:13:17] Speaker 00:
So, would submit to your honor that there were, I agree it's murky, but the problem here is what Scott recognized, what Hopkins and Dyer recognized is when you have

[00:13:27] Speaker 00:
encounter with the police that results in the death of a civilian, you're only getting a one-sided story.

[00:13:33] Speaker 02:
Scott was a shooting where the person died immediately and so I'm still focused on the second half because I think you have strong arguments on the question of excessiveness.

[00:13:45] Speaker 00:
Thank you.

[00:13:45] Speaker 02:
My issue is

[00:13:47] Speaker 02:
speaking for myself, the second half, which is similar cases.

[00:13:51] Speaker 02:
And the fact that someone died changes the way we look at the record, but it doesn't necessarily mean that the force was excessive.

[00:14:01] Speaker 02:
He didn't die immediately from the injury that occurred.

[00:14:05] Speaker 02:
He died because he got an infection and he died of sepsis.

[00:14:10] Speaker 00:
And are you then resting on Graham and Comfort?

[00:14:12] Speaker 00:
I'm resting on Graham and Comfort and also DeRoll because the instruction in DeRoll, Your Honor, is that this is not a novel, some novel use of force.

[00:14:21] Speaker 00:
You know, we're introducing a new taser or we're introducing some element that's never been examined by the courts before.

[00:14:28] Speaker 00:
This is something that's happened in the past.

[00:14:31] Speaker 00:
You're dealing with a situation

[00:14:33] Speaker 00:
where you have someone handcuffed, defenseless, being mistreated, being thrown around by someone nearly well over, practically twice their size, and they're defenseless.

[00:14:43] Speaker 00:
So we would submit, Your Honor, that there is use of force.

[00:14:45] Speaker 00:
Did you want to reserve time for 38 seconds?

[00:14:48] Speaker 01:
Yes, Your Honor.

[00:14:52] Speaker 03:
Good morning, Your Honors.

[00:14:53] Speaker 03:
Deputy Corporation Counsel Mark Disher on behalf of the Appellees County of Hawaii, as well as Officers Landon Takanishi, Paula Isatani, and Luke Watkins.

[00:15:02] Speaker 03:
Just one quick reminder for everyone.

[00:15:04] Speaker 03:
The Plaintiffs actually conceded a motion for summary judgment against Officers Landon Takanishi and Paula Isatani.

[00:15:12] Speaker 03:
So we're just here for Officer Watkins and the County.

[00:15:15] Speaker 03:
I would like to

[00:15:18] Speaker 03:
Note that this is basically the time for a motion for summary judgment.

[00:15:25] Speaker 03:
The defendants as a moving party had the initial burden.

[00:15:34] Speaker 03:
that there is an absence of a genuine or material dispute.

[00:15:39] Speaker 03:
And we believe not only that we did that, and though we're not required to, we also in part disproved much of the claims against... Let me ask you some questions.

[00:15:50] Speaker 01:
There's some issue about whether he was handcuffed, but as plaintiff allows, in the back.

[00:15:56] Speaker 01:
I think the Watkins depot says he had covered him behind his body before putting him in his car.

[00:16:04] Speaker 01:
But it seems like also there's photographic evidence from that night shows his hand prints in front of his body.

[00:16:12] Speaker 01:
And I think the Watkins depot also says that Burton was handcuffed in front of him when he exited the police car at the station.

[00:16:19] Speaker 01:
Do we know what that is?

[00:16:23] Speaker 01:
Because it seems like plaintiffs are now putting a lot of emphasis on it.

[00:16:26] Speaker 03:
Right, right.

[00:16:27] Speaker 03:
And that was part of the surprise to Officer Watkins.

[00:16:29] Speaker 03:
Yes, he was placed in the vehicle with his hands behind his back.

[00:16:33] Speaker 03:
I believe that's procedure.

[00:16:36] Speaker 03:
And when he opened that door, he did testify in his declaration and he was surprised that now he sees that Burton has his hands in front of him and that's when he came out like a jack-in-the-box and pushed.

[00:16:49] Speaker 03:
Officer Watkins.

[00:16:51] Speaker 03:
And that's also when he said, I'm out of here.

[00:16:53] Speaker 03:
Now, there is a lot of corroborating evidence for all of that.

[00:16:57] Speaker 03:
Pauli Satani's declaration, paragraph 14, I believe, on SCR-038 confirms that he saw the jolt of Officer Watkins.

[00:17:08] Speaker 03:
And, you know, Officer Watkins, yes, is a middle

[00:17:11] Speaker 03:
a large man.

[00:17:12] Speaker 03:
And so he saw that man be jolted by Burton.

[00:17:18] Speaker 03:
And the comment I'm adding here was also corroborated by the EMTs that came later.

[00:17:23] Speaker 03:
It was mentioned, that statement was mentioned in front of the EMTs on page SCR038, I believe.

[00:17:33] Speaker 03:
In which there was an explanation given for that.

[00:17:38] Speaker 03:
It's like, oh, I'm out of here.

[00:17:39] Speaker 03:
I'm going to get my lawyer or something like that.

[00:17:42] Speaker 03:
But there was an acknowledgement by Burton.

[00:17:44] Speaker 03:
That Burton said that.

[00:17:46] Speaker 03:
There was an acknowledgement, yes, by Burton that he said it, but he tried to play it off.

[00:17:50] Speaker 03:
That he was, oh, I'm just going to get a lawyer to get me out or something like that.

[00:17:55] Speaker 03:
He tried to explain the statement, basically.

[00:17:58] Speaker 03:
And there's also physical evidence, like you mentioned the photograph.

[00:18:03] Speaker 03:
So we have a photograph taken shortly afterwards.

[00:18:06] Speaker 03:
It's before he was treated.

[00:18:07] Speaker 03:
You see scrapes, abrasions.

[00:18:10] Speaker 04:
But he also had blood on his clothes.

[00:18:12] Speaker 03:
He has some blood on his clothes, yes.

[00:18:15] Speaker 03:
Blood on his clothes?

[00:18:16] Speaker 03:
Yes, blood on his clothes.

[00:18:17] Speaker 03:
He also had his hands in front of him.

[00:18:19] Speaker 03:
handcuffed in front of him in one of the photographs and also his abrasions primarily same for Officer Watkins on the left side so it also cooperates Officer Watkins saying when we went down we just went down on our sides.

[00:18:29] Speaker 01:
So let's talk about the leg sweep.

[00:18:32] Speaker 01:
Can you please respond to your friend across the aisle here's argument regarding the leg sweep.

[00:18:40] Speaker 03:
Yes, I mean, we can armchair quarterback anything every day.

[00:18:45] Speaker 03:
The officer, when describing in minute detail what happened, including having his hands around him, Vincent Burton trying to pry his fingers away.

[00:18:57] Speaker 03:
Well, it's not about armchair quarterbacking counsel.

[00:19:00] Speaker 04:
That's not the standard, right?

[00:19:02] Speaker 04:
The standard is we're supposed to look at the facts in the lightmost variable and look at things as inconsistencies here.

[00:19:08] Speaker 04:
And so that's an inconsistency.

[00:19:10] Speaker 04:
When one officer is saying, I fell, I bear hugged him and fell, another officer, I leg-sweeped him.

[00:19:18] Speaker 03:
Another officer didn't say that he leg-sweeped him.

[00:19:21] Speaker 03:
That's not in the record.

[00:19:22] Speaker 02:
Mr. Officer Watkins said, I think it's paragraph 29 of his declaration is where he describes that, as Mr. Burton struggled, I began to lose my grip.

[00:19:35] Speaker 02:
I made one last attempt to subdue him and I'm skipping some words.

[00:19:40] Speaker 02:
I lowered my body, placed my left foot in front of his feet and was able to break his momentum.

[00:19:45] Speaker 02:
caused him to lose balance and stop his feet from moving forward.

[00:19:50] Speaker 02:
We both fell on the ground on our left sides.

[00:19:54] Speaker 02:
And so that's the description that I was relying on.

[00:20:02] Speaker 03:
And that's what I was referring to when we're able to go into the minute detail versus say maybe a summary in a police report of what happened.

[00:20:12] Speaker 03:
That's generally a short, bleak, and statement of events.

[00:20:17] Speaker 01:
So I guess my question is, does anybody dispute that, what is described there, and even if they don't, does that constitute reasonable force?

[00:20:27] Speaker 03:
I believe in this case it does constitute reasonable force, and there is no dispute in the record.

[00:20:33] Speaker 03:
We have dispute from the plaintiffs, but there's no evidence to demonstrate that.

[00:20:44] Speaker 03:
No, Mr. Burton said he was beaten.

[00:20:46] Speaker 03:
Yeah, but no one said anything about body slime or pile drive except for plaintiffs.

[00:20:52] Speaker 03:
It's nowhere in the record.

[00:20:53] Speaker 03:
It's similar as in their complaint because they mentioned use of a taser and even their experts relied on their complaint saying that there's use of taser and there's no mention of it anywhere in the record.

[00:21:07] Speaker 01:
Talk about clearly established law and whether or not the officer would have been on notice if this was unreasonable force.

[00:21:13] Speaker 01:
What's the best case that you would cite us to to say it's not, or what's your argument?

[00:21:22] Speaker 01:
Counsel here is arguing Graham.

[00:21:27] Speaker 01:
What's your response to that?

[00:21:29] Speaker 03:
I believe that this case is definitely distinct from Graham.

[00:21:33] Speaker 03:
As the opposing counsel admitted, there was other factors that went into the excessive force analysis in Graham.

[00:21:40] Speaker 03:
He didn't go into detail on that.

[00:21:41] Speaker 03:
He just wanted to leave it at that.

[00:21:44] Speaker 03:
I understand that.

[00:21:48] Speaker 03:
In addressing the cases he does rely on, and I also had a lot of difficulty trying to find anything that would put the officer clearly on point and on notice, obviously the reliance of comfort is inappropriate.

[00:22:05] Speaker 03:
It is not even the Ninth Circuit or Supreme Court case.

[00:22:11] Speaker 03:
Brian versus McPherson is one of the cases that they cited, which

[00:22:17] Speaker 03:
is easily distinguishable as well.

[00:22:20] Speaker 04:
Let me ask you this.

[00:22:23] Speaker 04:
Do you think their characterization of us, the court, looking at this from the point of view of when an individual is handcuffed, is that the right way that we should be looking at this?

[00:22:36] Speaker 04:
Or should we be looking at just excessive force in general?

[00:22:40] Speaker 04:
Or should we be looking at specifically as this gentleman was handcuffed?

[00:22:45] Speaker 03:
The case was pretty clear.

[00:22:47] Speaker 03:
You don't want to have it too general to be considered clearly established.

[00:22:52] Speaker 03:
It should have facts at least sufficient enough to put the officer on notice in this case.

[00:22:59] Speaker 03:
In this case, there are other cases involving handcuffs in which some force is reasonable.

[00:23:06] Speaker 04:
What was it that you cited?

[00:23:08] Speaker 04:
I just want to make sure I understood.

[00:23:15] Speaker 03:
To the Chief's question, which is, what's your best case saying that a handcuffed individual being... Ironically, the closest case I found on point was a recent Disher Court case in another circuit as well.

[00:23:35] Speaker 03:
So that is obviously not helpful either one way or the other.

[00:23:46] Speaker 03:
And that was the issue in this case is I couldn't find anything exactly on point.

[00:23:51] Speaker 03:
I did cite to a number of different cases including that.

[00:24:10] Speaker 03:
I apologize, your honor.

[00:24:12] Speaker 03:
So the recent case I was referring to actually came out of the Sixth Circuit.

[00:24:17] Speaker 03:
It was actually a Sixth Circuit case, not a district court case, Van Pelt versus City of Detroit, in which actually, in that case, holding that the officer who tackled the fleeing, handcuffed individual suspected of drug offenses and vehicle violations did not violate suspects' constitutional rights and was entitled to qualified immunity.

[00:24:35] Speaker 03:
Again, in the Ninth Circuit, I did not find anything close.

[00:24:38] Speaker 04:
But we also have this in that he was fleeing.

[00:24:42] Speaker 03:
That's corroborated by all the other evidence.

[00:24:44] Speaker 02:
He apologized.

[00:24:46] Speaker 02:
He said it was stupid of him to try to flee.

[00:24:50] Speaker 03:
I agree.

[00:24:50] Speaker 03:
It was stupid of him to try to flee.

[00:24:52] Speaker 02:
That was his statement.

[00:24:53] Speaker 02:
I'm not saying whether it was or wasn't.

[00:24:56] Speaker 03:
That's the evidence that was presented to the district court.

[00:25:04] Speaker 03:
Now, the plaintiffs seem to put a lot of stock into their expert, Mr. Colomer.

[00:25:11] Speaker 03:
The problem is that the report itself is hearsay.

[00:25:14] Speaker 03:
Anything that this report was lenient and even considering in, and it should have been used at all.

[00:25:21] Speaker 03:
The rules of evidence refer to expert testimony.

[00:25:25] Speaker 03:
That is not testimony.

[00:25:26] Speaker 03:
The only testimony we have for Mr. Talmers is deposition.

[00:25:29] Speaker 03:
And that is what should be considered.

[00:25:34] Speaker 03:
Now, Mr. Talmers' opinion, legal opinion, should not

[00:25:40] Speaker 03:
It definitely goes to the weight of his testimony.

[00:25:45] Speaker 04:
Before you run out of time, I did have a question.

[00:25:47] Speaker 04:
How should we treat the statement by Mr. Burton that he was beaten?

[00:25:52] Speaker 04:
How should we treat that in light of all of the evidence in this case?

[00:25:58] Speaker 03:
I did address it down below at the motion for summary judgment.

[00:26:02] Speaker 03:
I don't have that in front of me.

[00:26:03] Speaker 03:
But yes, it was a self-serving statement, basically, and it was taken some point later.

[00:26:11] Speaker 03:
It wasn't from the hospital visit of

[00:26:14] Speaker 03:
May 4, 2018, it was the second.

[00:26:16] Speaker 04:
I thought it was in the medical record, counsel.

[00:26:19] Speaker 03:
It is in the medical record somewhere, but it did seem to be a self-serving statement.

[00:26:24] Speaker 03:
He's giving that statement.

[00:26:26] Speaker 03:
I'm sorry.

[00:26:26] Speaker 02:
I was going to say that all statements are self-serving.

[00:26:33] Speaker 03:
The thing is, there's no other corroboration.

[00:26:35] Speaker 03:
Even his wife, Donna Burton, who was present, and mind you, he's alleging he was beaten at the scene.

[00:26:42] Speaker 03:
of the arrest.

[00:26:43] Speaker 03:
There's no mention of the police station.

[00:26:46] Speaker 03:
So according to Donna Burton, when she testified under deposition, she said that the beating, according to Vincent, happened at the scene because that's what he told her.

[00:26:59] Speaker 03:
And that's obviously Mrs. Willis hearsay.

[00:27:02] Speaker 03:
And she even admitted that she did not actually see anything at the scene.

[00:27:08] Speaker 03:
So there's all these inconsistencies.

[00:27:11] Speaker 03:
You have a suspect who was drinking and fled from police several times, was cooperative and uncooperative at times, and here we are as a possible escape attempt once he's at the station.

[00:27:28] Speaker 03:
The totality of the circumstances, all these circumstances taken together, I believe the district court made the right call in this case.

[00:27:37] Speaker 03:
Thank you.

[00:27:40] Speaker 01:
I'll give you two minutes.

[00:27:44] Speaker 00:
Thank you so much, Judge.

[00:27:45] Speaker 00:
I just want to make three points in reply.

[00:27:47] Speaker 00:
First, in the ER 232, volume 2, ER 232, it's the autopsy report.

[00:27:56] Speaker 00:
It states the officer picked him up and swept his feet out from under him and took him to the ground.

[00:28:02] Speaker 00:
That's a recitation of what Officer Watkins did.

[00:28:06] Speaker 00:
So maybe a better description of what Officer Watkins did was he tackled a 290 pound person tackling Vincent Burton to the ground while he was handcuffed.

[00:28:15] Speaker 00:
Another point, Your Honor, is that Graham, excuse me, Comfort and McLean are cases which we cite that involve the abuse of a handcuffed prisoner.

[00:28:27] Speaker 00:
Both of those cases cite, in their qualified immunity analysis, cite to Graham.

[00:28:32] Speaker 00:
And I think the significance is that if the court looks at this as opposed to a leg sweep case as simply a case of mistreating and abusing a handcuffed prisoner.

[00:28:42] Speaker 00:
In Graham, the prisoner was handcuffed and thrown into a car.

[00:28:47] Speaker 00:
In Comfort, the individual was handcuffed and his body was picked up and dropped again on the ground.

[00:28:53] Speaker 00:
In McLean, there was also abuse of some sort of throwing of an individual, as I best I recall, while handcuffed.

[00:29:01] Speaker 00:
Those cases all cite the grant.

[00:29:03] Speaker 04:
But if we believe that the officer's statements here that he was fleeing, that they're not inconsistent, I should say.

[00:29:11] Speaker 00:
Well, even if he was arguably fleeing, where is he going to go in the Honokawa police station at midnight?

[00:29:16] Speaker 00:
There's nowhere to go.

[00:29:16] Speaker 00:
There's no high governmental interest to use force which is close to lethal force.

[00:29:22] Speaker 01:
So just let him run around.

[00:29:24] Speaker 00:
Potentially, Your Honor, he's handcuffed.

[00:29:26] Speaker 00:
Where is he going to go?

[00:29:26] Speaker 00:
Wait for Officer Isatani.

[00:29:29] Speaker 00:
engage in crisis intervention counseling, just like DeRoll counsels.

[00:29:34] Speaker 00:
DeRoll dealt with an individual who was intoxicated as well.

[00:29:37] Speaker 00:
And then Mr. Burton's blood alcohol was over the legal limit.

[00:29:40] Speaker 00:
So obviously it wasn't acting rationally.

[00:29:43] Speaker 00:
So we should treat people like this not as criminals, per se, but as people who need help.

[00:29:49] Speaker 00:
And instead of mistreating him, throwing him to the ground where he suffers life-threatening injuries, which he ultimately dies from,

[00:29:58] Speaker 00:
I think the Ninth Circuit Court, as I read the role, is saying we should treat people more compassionately.

[00:30:03] Speaker 01:
All right, thank you very much.

[00:30:05] Speaker 01:
Appreciate the oral argument.

[00:30:09] Speaker 01:
The case of Lorette versus County of Hawaii is now submitted.

[00:30:12] Speaker 01:
Mr. Smith, Mr. Disher, thank you so much.