[00:00:00] Speaker 03:
You may proceed, Council.

[00:00:01] Speaker 02:
Sorry, Judge Owens, I did not want to interrupt your conversation.

[00:00:03] Speaker 02:
No, no, I appreciate that.

[00:00:04] Speaker 03:
Appreciate that.

[00:00:05] Speaker 02:
Good morning.

[00:00:06] Speaker 02:
My name is Jim Jellison and I represent Lewis Hugh Plunkett III.

[00:00:11] Speaker 02:
May it please the Court?

[00:00:13] Speaker 02:
It seems to me that in the last at least five to six years, if not beyond, the Supreme Court of the United States has sent us a message about qualified immunity.

[00:00:23] Speaker 02:
And that message is that we can't rely on this idea that

[00:00:28] Speaker 02:
You don't necessarily need a case on point too much.

[00:00:32] Speaker 02:
The court, through cases like Emmons and Casella, has really said to the Ninth Circuit in particular that when we look at clearly established law, the second prong of qualified immunity, we really need to find a case that not only holds that a Fourth Amendment violation occurred, but it's got to be under a set of facts

[00:00:54] Speaker 02:
that is particular enough so that every reasonable officer can read that and say, for example, in this case, hey, I can't use a taser under these circumstances.

[00:01:07] Speaker 02:
It is constitutionally prohibited and clearly established law from the U.S.

[00:01:12] Speaker 02:
Supreme Court, from the Ninth Circuit Court of Appeals or a robust consensus of circuit courts tells me that I can't do it.

[00:01:19] Speaker 01:
Would this be a different case

[00:01:22] Speaker 01:
if it were absolutely clear from the record that the officer here did not warn the individual before administering the taser?

[00:01:35] Speaker 02:
Would it be a different case if there was no warning whatsoever?

[00:01:39] Speaker 02:
In other words, even no taser, taser, taser?

[00:01:43] Speaker 02:
Yeah.

[00:01:43] Speaker 02:
No.

[00:01:44] Speaker 02:
The answer is no.

[00:01:45] Speaker 02:
And the reason is Smith versus Agdeppa.

[00:01:47] Speaker 02:
which is at 81 F4 994, which tells us that when we're dealing with a fast moving situation, even though a warning is preferred, it's not required.

[00:01:57] Speaker 01:
How about if it was clear that the officer knew Ramsey was autistic?

[00:02:04] Speaker 02:
No.

[00:02:05] Speaker 02:
Again, I think it's also a question of degrees of what they knew, and there's no understanding on the part of Officer Plunkett.

[00:02:13] Speaker 02:
You know, autism, and this may go beyond the briefing,

[00:02:16] Speaker 02:
is a spectrum disorder, you can have very high functioning autistic people, you can have very low functioning autistic people that operate in a five or six year old level.

[00:02:27] Speaker 02:
That does not appear the case here.

[00:02:29] Speaker 01:
Just so I understand sort of the factual setting here, this is traffic court?

[00:02:36] Speaker 02:
This is traffic court.

[00:02:37] Speaker 02:
This is the Lake Havasu City Municipal Court.

[00:02:41] Speaker 01:
Believe me, I know where Lake Havasu is, I promise you.

[00:02:45] Speaker 01:
traffic court and the citation is for not having proof of insurance?

[00:02:50] Speaker 02:
Correct.

[00:02:52] Speaker 01:
And Mr. Ramsey was attempting to show to the judge that he had proof of insurance, is that right?

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

[00:03:04] Speaker 01:
And the judge wouldn't allow that?

[00:03:08] Speaker 02:
Does not appear that he would.

[00:03:13] Speaker 01:
Okay.

[00:03:14] Speaker 02:
Yeah, and I don't think that those issues have anything to do with what Officer Plunkett eventually did because of the situation that he found himself in.

[00:03:25] Speaker 02:
What was clear is that Ramsey was involved in a series of aggressive behaviors, even starting with the judge.

[00:03:33] Speaker 02:
So at some point he stands up, you know, and he becomes aggressive with the judge verbally.

[00:03:39] Speaker 02:
At some point it appears that he's starting to film the judge and the judge sees this.

[00:03:44] Speaker 02:
and tells him to relinquish his camera.

[00:03:46] Speaker 02:
He refuses to do that.

[00:03:48] Speaker 02:
Officer Daley stands up when Ramsey stands up and he's challenged by Ramsey, who says words to the effect of, you know, what are you going to do about it, little man?

[00:04:03] Speaker 02:
The judge ultimately is told by Ramsey, smile, because you're on camera, and the judge orders him out of the courtroom.

[00:04:10] Speaker 02:
I think this is where the officer's actions come into play.

[00:04:13] Speaker 02:
They attempt to escort him out.

[00:04:15] Speaker 02:
He pulls his arm away from them.

[00:04:19] Speaker 02:
He's let out of the courtroom.

[00:04:21] Speaker 02:
And when we talk about this escort hold, the plaintiff's expert even says that that's appropriate.

[00:04:28] Speaker 02:
But practically speaking, why wouldn't the officers use at least some light form of, you know, physical control to get him out of the courtroom after seeing this aggression?

[00:04:39] Speaker 02:
There's no case law that I've seen to suggest that

[00:04:42] Speaker 02:
violates clearly established law.

[00:04:44] Speaker 01:
Was he tasered inside or outside the courtroom?

[00:04:48] Speaker 02:
I'm sorry, sir.

[00:04:49] Speaker 01:
Was he tasered inside or outside of the courtroom?

[00:04:53] Speaker 02:
Outside of the courtroom in the hallway.

[00:04:57] Speaker 03:
And that followed a series... Let me just ask a little more clarification on the factual circumstance here.

[00:05:05] Speaker 03:
The judge told him to leave the courtroom, right?

[00:05:11] Speaker 02:
Yes.

[00:05:12] Speaker 02:
Actually, I think to be more precise, Judge Tashima, the court said remove him from the courtroom.

[00:05:21] Speaker 02:
And the officers in the galley took that as a direction from them or to them to assist in removing him from the courtroom.

[00:05:31] Speaker 03:
OK.

[00:05:34] Speaker 03:
So the question is, all right, so it reasonably appeared to the officers

[00:05:42] Speaker 03:
The judge said, take him out.

[00:05:44] Speaker 03:
So what did they do then?

[00:05:46] Speaker 03:
Did they immediately approach Ramsey, the two officers?

[00:05:51] Speaker 02:
Yes, they did.

[00:05:52] Speaker 02:
And it was, I think, really near kind of the threshold of where the little gate is that we come into the court and attempted to just control his bicep.

[00:06:03] Speaker 02:
And Ramsey responded, you see this all on the video.

[00:06:06] Speaker 03:
That happened inside the courtroom?

[00:06:08] Speaker 02:
Yes, sir.

[00:06:09] Speaker 03:
As they started to walk up?

[00:06:11] Speaker 02:
Yes, sir.

[00:06:12] Speaker 03:
All right.

[00:06:13] Speaker 03:
But the real scuffle didn't happen until they were outside the courtroom.

[00:06:17] Speaker 02:
Yes, sir, that is correct.

[00:06:19] Speaker 03:
Thank you.

[00:06:19] Speaker 02:
Go ahead.

[00:06:20] Speaker 02:
And that's really the key part here.

[00:06:22] Speaker 02:
When we look at ARS 13-2508, it has basically three forms of resisting arrest.

[00:06:31] Speaker 02:
And the first form, and by the way, the statute doesn't use the term active resistance.

[00:06:37] Speaker 02:
It uses the term physical resistance.

[00:06:39] Speaker 02:
So when you look at A1,

[00:06:42] Speaker 02:
an A1 violation is using or threatening to use physical force against the peace officer or another.

[00:06:49] Speaker 02:
A3 is where we use, get the term passive resistance.

[00:06:54] Speaker 02:
And that's why the passive resistance cases don't really apply here because Ramsey on the video used or threatened to use physical force against the peace officer.

[00:07:07] Speaker 02:
And not only do we see that on the video, but in the answering brief from plaintiffs,

[00:07:12] Speaker 02:
They acknowledge that in the courtroom that he pulled his arm away, but outside the courtroom that he pulled his arm away, that he pulled his arm out of Sandro's control.

[00:07:25] Speaker 02:
That's a physical action to resist arrest, that he knocks a piece of equipment off a plunket.

[00:07:35] Speaker 02:
That's a physical form of resisting arrest.

[00:07:38] Speaker 02:
But their acknowledgments even go further than that.

[00:07:41] Speaker 02:
Ramsey verbally resists.

[00:07:45] Speaker 02:
Plunkett announces to everybody in the hallway he's in custody.

[00:07:49] Speaker 02:
Ramsey verbally says, no, I'm not.

[00:07:52] Speaker 02:
After that, he clenches his fist, another physical action, a threat, a physical force against the peace officers.

[00:08:01] Speaker 02:
And the plaintiff even admits this, that as the many officers are trying to control him, which we see clearly on the video,

[00:08:10] Speaker 02:
They admit that what he's doing is jerking from side to side in order to free himself from the control of the officers.

[00:08:19] Speaker 02:
That is a use of physical force against the peace officers to prevent a resistance.

[00:08:25] Speaker 02:
And then they acknowledge in the answering brief that he tried to twist his body again to free himself from the officer's detention or arrest efforts.

[00:08:37] Speaker 02:
A taser is deployed.

[00:08:40] Speaker 02:
Judge Hawkins, you're correct.

[00:08:41] Speaker 02:
Taser, taser, taser.

[00:08:44] Speaker 02:
But you can see in the video how quickly things are moving here.

[00:08:47] Speaker 02:
But you know what?

[00:08:48] Speaker 02:
It works.

[00:08:49] Speaker 02:
The taser application works.

[00:08:52] Speaker 02:
The resistance stops.

[00:08:53] Speaker 02:
The officers are able to handcuff Mr. Ramsey.

[00:08:57] Speaker 02:
And other than handcuffing him, there's no further force that's employed in this case.

[00:09:03] Speaker 02:
And I think one of the advantages of observing clearly established law properly by the courts is that when we honor clearly established law and its standard properly, we don't sort of inadvertently take away from police officers an option to use less than lethal force in order to control a volatile situation.

[00:09:30] Speaker 02:
Now, you know, we've seen taser cases where the taser is deployed and serious injuries occurred and that can change the calculus of the court's decision.

[00:09:38] Speaker 02:
But that's not what we have in this case.

[00:09:41] Speaker 02:
The taser ended Ramsey's resistance.

[00:09:44] Speaker 02:
He was handcuffed and you can see him in the hospital.

[00:09:48] Speaker 02:
There's no serious injuries.

[00:09:50] Speaker 02:
He's even jovial with the nurses.

[00:09:52] Speaker 02:
This is not one of those cases where somebody falls off the fence or they're tasered and they,

[00:09:57] Speaker 02:
They go from a standing position face down into the sidewalk.

[00:10:05] Speaker 02:
The plaintiff has the responsibility to show clearly established law that meets standards like we see in the Emmons v. City of Escondido case from the U.S.

[00:10:14] Speaker 02:
Supreme Court.

[00:10:16] Speaker 02:
In cases like Matos v. Brooks, Bryan v. McPherson, the original Gravelet v. Blondine case,

[00:10:24] Speaker 02:
They don't do it.

[00:10:25] Speaker 02:
And the reason they don't do it is when you look at the facts of each of those cases, you're dealing with people that are compliant.

[00:10:33] Speaker 02:
They're not physically resisting.

[00:10:35] Speaker 02:
They may not be wanting to sign a citation, the Brooks situation.

[00:10:41] Speaker 02:
They may not want to get out of the car.

[00:10:43] Speaker 02:
They're just sitting there, the Brooks situation.

[00:10:46] Speaker 02:
But they're not doing what Ramsey's doing.

[00:10:48] Speaker 02:
And what Ramsey's doing is he's fighting back.