[00:00:09] Speaker 04:
May it please the court, my name is David Abney, I'm here today on behalf of plaintiff appellant Brett Smith.

[00:00:16] Speaker 04:
The older I get, the more I appreciate that you need to have things like protocols, guidelines, instructions, practices and policies that you do when you get into a ticklish situation so you know what to do.

[00:00:30] Speaker 04:
You don't just sort of take it on the fly, get exasperated and decide I've had enough, I'm going to do this my way.

[00:00:37] Speaker 04:
And here the police officers

[00:00:38] Speaker 04:
reached the point where they'd had enough.

[00:00:40] Speaker 04:
They were trying to deal with Brett.

[00:00:43] Speaker 04:
He was in a bad way.

[00:00:46] Speaker 04:
He was drunk.

[00:00:47] Speaker 04:
He had made suicidal statements.

[00:00:51] Speaker 04:
There were firearms in his house.

[00:00:53] Speaker 04:
They arrived to deal with the situation.

[00:00:58] Speaker 04:
So they got him disarmed.

[00:00:59] Speaker 04:
They got him inside the house.

[00:01:01] Speaker 04:
They peacefully handcuffed him.

[00:01:03] Speaker 04:
They sat him down and started talking with him.

[00:01:06] Speaker 04:
They had the paramedics take a look at him, but before the paramedics took a look at him, to look at him, they took the handcuffs off.

[00:01:12] Speaker 04:
I don't know why.

[00:01:14] Speaker 04:
It doesn't seem like it would be necessary for this kind of examination to take him off, but they took him off.

[00:01:19] Speaker 04:
And after the paramedics said, yeah, he should go in for evaluation of care at some sort of mental health facility, then they decided to talk with him some more to try to persuade him to go peacefully with them.

[00:01:30] Speaker 01:
So, Counsel, you can be assured that we know the facts of the case.

[00:01:34] Speaker 01:
But what I wanted to ask you is whether or not you are of the view that it's the law that in an excessive force case or police practices case, a police use of force case, that the court is required to give weight to a police practices expert statement?

[00:02:03] Speaker 01:
Yes.

[00:02:04] Speaker 01:
Okay, tell us what case says that the district court has to give, what weight the district court has to give to a police practices expert declaration or statement or opinion.

[00:02:19] Speaker 01:
What case says that?

[00:02:21] Speaker 04:
Your Honor, I may have to wait until rebuttal to point it out to you.

[00:02:24] Speaker 04:
I know I put- Okay, that's right.

[00:02:24] Speaker 04:
I don't want you to- I know I put several in the opening brief.

[00:02:28] Speaker 01:
Right.

[00:02:29] Speaker 01:
The difficulty I have with that is that the district court has to determine what is reasonable.

[00:02:35] Speaker 01:
And the police practices expert cannot make that determination.

[00:02:40] Speaker 01:
Do you agree with that?

[00:02:41] Speaker 01:
That it's not within the realm of the police practices expert to tell the district court what's reasonable and what's not reasonable.

[00:02:50] Speaker 01:
It can tell the district court what practices are, what best practices are, what the procedures were in the,

[00:02:58] Speaker 01:
department at issue, but can the expert tell the district court what was reasonable?

[00:03:07] Speaker 01:
In the sense, no, not in the sense of, of the ultimate determination.

[00:03:12] Speaker 04:
There you go.

[00:03:12] Speaker 04:
That's it.

[00:03:12] Speaker 04:
Exactly.

[00:03:13] Speaker 04:
But the, the police practices expert is there to help inform the court and if possible inform the trial or fact, the jury about what proper police practices would be in a situation of this nature.

[00:03:25] Speaker 04:
You know, do you need to calm down?

[00:03:27] Speaker 04:
Do you need to take time?

[00:03:28] Speaker 04:
Do you need to wait?

[00:03:29] Speaker 04:
Do you avoid using force?

[00:03:31] Speaker 04:
If at all possible.

[00:03:33] Speaker 04:
These are policies, practices, and procedures.

[00:03:34] Speaker 04:
And he wasn't just pointing to one.

[00:03:37] Speaker 04:
He pointed to a whole panoply of things.

[00:03:38] Speaker 01:
But the district, I mean, our cases say that violation of a policy does not necessarily equate to a constitutional violation.

[00:03:47] Speaker 01:
Would you agree with that?

[00:03:49] Speaker 04:
Correct.

[00:03:50] Speaker 01:
Okay.

[00:03:51] Speaker 01:
the district court was free to listen to the expert, to weigh it, and then decide reasonableness based on everything that was presented to the court.

[00:04:01] Speaker 01:
Would you agree?

[00:04:01] Speaker 04:
To a point.

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

[00:04:04] Speaker 04:
To what point?

[00:04:05] Speaker 04:
The point is, when can reasonable minds differ on the fundamental issue of whether the force was reasonable or not?

[00:04:11] Speaker 04:
Isn't that a jury determination, a question of fact for the jury?

[00:04:14] Speaker 01:
Not necessarily.

[00:04:16] Speaker 01:
If the evidence

[00:04:18] Speaker 01:
is such that it only points in one direction.

[00:04:20] Speaker 01:
The district court can make it as a matter of law.

[00:04:23] Speaker 04:
Exactly right.

[00:04:24] Speaker 04:
And my position is that this doesn't point just in one direction.

[00:04:28] Speaker 04:
You not only have the police practices expert, of course, but you also have common sense about what was going on here.

[00:04:35] Speaker 04:
They had successfully handcuffed this gentleman.

[00:04:38] Speaker 04:
They had successfully gotten control of the situation.

[00:04:40] Speaker 04:
All they had to do was have the paramedics look at him and say, well, sure, he's drunk.

[00:04:44] Speaker 04:
And we've heard he's saying suicidal things.

[00:04:47] Speaker 04:
He needs to go.

[00:04:48] Speaker 04:
And then they unhandcuffed him and set up this whole situation where they had to worry about, well, if we're going to handcuff him again, is he going to cooperate?

[00:04:58] Speaker 04:
And they didn't wait.

[00:04:59] Speaker 04:
They didn't slow down.

[00:05:00] Speaker 04:
They didn't let him come back to where he had been originally where they were able to handcuff him.

[00:05:04] Speaker 04:
Instead, they pushed that.

[00:05:06] Speaker 04:
And they weren't supposed to do that according to general policies, practice procedures, protocols, guidelines.

[00:05:11] Speaker 04:
whatever you want to say, the expert really covered the universe here saying that this is bad.

[00:05:16] Speaker 05:
The excessive force claim has to be determined in light of all the circumstances at the time the force is applied.

[00:05:23] Speaker 05:
And the fact that 30 minutes earlier they made another mistake that, you know, created a risk that they then had to deal with isn't a basis for saying that it's excessive force.

[00:05:33] Speaker 04:
But it's all one event.

[00:05:34] Speaker 04:
And it's all one event that took place over a fairly short period of time.

[00:05:37] Speaker 05:
But at the point they decided, I mean,

[00:05:38] Speaker 05:
Were they supposed to wait there for hours until, you know, he sobered up or what?

[00:05:43] Speaker 05:
At some point it was clear he had to go in.

[00:05:46] Speaker 00:
Yes.

[00:05:46] Speaker 05:
And so they, you know, they were very patient with him and they tried, you know, they accommodated a lot of his requests, but at some point, you know, he's got to go.

[00:05:59] Speaker 05:
And I couldn't agree with you more.

[00:06:01] Speaker 05:
But then there comes a point.

[00:06:02] Speaker 05:
And then he became, at that point, he became resistant and belligerent.

[00:06:08] Speaker 04:
He was.

[00:06:09] Speaker 04:
And then they gang tackled him down and he fractured a knee.

[00:06:14] Speaker 04:
And I agree with you.

[00:06:16] Speaker 04:
I couldn't agree more with you.

[00:06:17] Speaker 04:
There comes a point where enough is enough and you have to take things under control.

[00:06:21] Speaker 04:
But where that point is, is a question of fact.

[00:06:25] Speaker 04:
You can't just take these things away from the jury, especially in a situation like this, where you have a unique situation.

[00:06:33] Speaker 04:
They handcuffed him peacefully.

[00:06:35] Speaker 04:
They examined them.

[00:06:36] Speaker 04:
They decided they need to re-handcuff them.

[00:06:37] Speaker 04:
They set up this whole tragedy to begin with because they didn't need to unhandcuff them for any of this.

[00:06:43] Speaker 04:
And then you get to the point, well, did you do enough?

[00:06:46] Speaker 04:
And the expert says, you know, according to policies, guidelines, practices, and procedures, there should have been some more going on here.

[00:06:52] Speaker 04:
There should have been more patients, more distance, more of an opportunity.

[00:06:57] Speaker 04:
Is he right or wrong?

[00:06:59] Speaker 04:
That is a question of fact.

[00:07:02] Speaker 04:
So many times these cases get derailed.

[00:07:04] Speaker 04:
And I understand the trouble is, and the glory of it all is, of course, is that judges deal with this sort of stuff all the time.

[00:07:12] Speaker 04:
And they slip into the role of becoming the trier of fact when they should distance themselves a little bit and stay in the role of saying, well, look, could reasonable jurors say that there is something here

[00:07:26] Speaker 04:
about the reasonableness of what was going on, that what the officers did was unreasonable, given the totality of the circumstances.

[00:07:33] Speaker 04:
And let the jury decide that.

[00:07:35] Speaker 05:
What specifically is unreasonable?

[00:07:40] Speaker 05:
That's the question.

[00:07:41] Speaker 01:
In the use of force, because the use of force is a discrete event.

[00:07:48] Speaker 01:
So setting aside all of your

[00:07:51] Speaker 01:
remarks regarding what they could have done or should have done preceding that at the moment of the use of force.

[00:07:58] Speaker 04:
What was unreasonable?

[00:07:59] Speaker 04:
Unreasonable to effectively tackle him and push him down hard so that he banged his knee.

[00:08:03] Speaker 04:
They could have kept him upright, I submit.

[00:08:06] Speaker 04:
A reasonable jurist could have said they could have kept him upright and still handcuffed him or hustled him out to the car

[00:08:12] Speaker 04:
And handcuffed him outside where maybe they had a little more distance and space to handle things instead of being cramped confined quarters.

[00:08:18] Speaker 05:
It's clear from the video that they were really struggling and he was not cooperating.

[00:08:23] Speaker 04:
Right.

[00:08:23] Speaker 05:
Trying to get the, the right hand handcuffed behind his back.

[00:08:31] Speaker 05:
And he was a big man.

[00:08:32] Speaker 05:
I think the, the district court was a little lenient in, in

[00:08:39] Speaker 05:
of furring because I didn't see a push in the video.

[00:08:42] Speaker 05:
I just, I just didn't see it, but the district court assumed, let's assume that he was deliberately pushed down and then why would it be unreasonable in this circumstance?

[00:08:52] Speaker 05:
And then why would it meet the test for qualified immunity that every reasonable officer would know you can't do this, that you can't push down a

[00:09:08] Speaker 05:
you know, drunk, belligerent, large person who's resisting being handcuffed.

[00:09:14] Speaker 04:
Your Honor, I think it all depends on the circumstances.

[00:09:16] Speaker 04:
You had an overwhelming number of police officers here.

[00:09:20] Speaker 04:
This could have been handled in a way where he didn't get thrust down and break a knee.

[00:09:25] Speaker 04:
And I think that the fundamental answer is to drink it.

[00:09:29] Speaker 05:
What evidence in the record shows that he had a broken knee?

[00:09:32] Speaker 05:
I mean, obviously he had treatment.

[00:09:35] Speaker 05:
Are there any medical records where they put

[00:09:37] Speaker 04:
I don't think there's anything firm in the record other than it seems to be the operating assumption of the district court and everybody else that there was a fracture.

[00:09:43] Speaker 05:
Were those produced in discovery?

[00:09:45] Speaker 05:
Why did they not make it into the summary judgment record?

[00:09:47] Speaker 04:
I don't know why it wasn't documented better.

[00:09:50] Speaker 04:
It's just, it's one of those things that seemed to everybody assumed he did.

[00:09:53] Speaker 05:
It's the only item of testimony that he broke his knee, his own claim that he broke his knee?

[00:10:02] Speaker 05:
That his deposition?

[00:10:05] Speaker 04:
That's the one I can remember.

[00:10:07] Speaker 04:
which would be, it is evidence.

[00:10:09] Speaker 05:
And they objected on foundation to that, because he, what foundation does he have?

[00:10:14] Speaker 05:
I mean, if you say from some doctor, we don't know what the doctor said, and he doesn't have any foundation to say what type of fracture it was?

[00:10:26] Speaker 04:
I think that patients have a foundation to talk about their health conditions.

[00:10:30] Speaker 04:
I think that's a pretty general accepted principle of evidentiary law.

[00:10:34] Speaker 04:
If somebody says, did you have a cold yesterday?

[00:10:36] Speaker 04:
Did you break your leg?

[00:10:37] Speaker 04:
Yes.

[00:10:38] Speaker 04:
And I mean, it may not be iron clad, but it's still evidence.

[00:10:41] Speaker 04:
So there would be some evidence in front of the court.

[00:10:43] Speaker 04:
And the court certainly acted on that assumption.

[00:10:44] Speaker 05:
That there was an injury.

[00:10:45] Speaker 05:
But when you're getting to more granular claims about the extent of the injury, usually the case law suggests there has to be medical evidence to back up those claims.

[00:10:57] Speaker 05:
And it isn't in this record.

[00:10:59] Speaker 04:
I would have liked stronger evidence.

[00:11:00] Speaker 04:
But at a minimum, we know that he said he hurt his knee.

[00:11:02] Speaker 04:
And certainly he's competent to testify whether he experienced pain or not from this event.

[00:11:08] Speaker 04:
So at a minimum, he was injured to the extent of suffering pain and probably to the extent of having a fracture.

[00:11:15] Speaker 04:
But the whole point that I have here, which may or may not win, is that you have a situation where there's policies, practices, and procedures designed to prevent this sort of thing, and they weren't followed.

[00:11:26] Speaker 03:
Well, Counsel, on that point,

[00:11:28] Speaker 03:
In order to have Monell liability against the police department, the sheriff's office, there has to have been a policy, practice, or custom that they were operating under.

[00:11:40] Speaker 03:
And it sounds like you're saying the opposite, that they were not following a policy, custom, or practice that was imposed on them.

[00:11:47] Speaker 04:
Correct.

[00:11:48] Speaker 04:
They were not.

[00:11:48] Speaker 04:
There were policies, practices, and procedures, and they didn't follow them.

[00:11:51] Speaker 03:
OK.

[00:11:52] Speaker 03:
It seems to me that you lose then against the sheriff's department, the police department,

[00:11:58] Speaker 03:
under that?

[00:11:59] Speaker 04:
I am in difficulty on that issue, Your Honor.

[00:12:02] Speaker 03:
Okay.

[00:12:04] Speaker 03:
Yeah, I thought that coming into the argument.

[00:12:06] Speaker 04:
It's very perceptive.

[00:12:07] Speaker 03:
Okay.

[00:12:08] Speaker 04:
If I may reserve my remaining time.

[00:12:09] Speaker 03:
All right, and if I could just ask a follow-up on Judge Collins' question.

[00:12:13] Speaker 03:
Yes, Your Honor.

[00:12:14] Speaker 03:
On qualified immunity, then what's your response there that every officer, reasonable officer, would have known you can't do this?

[00:12:23] Speaker 04:
Every regional officer would know you're not supposed to use excessive force when you're handcuffing.

[00:12:27] Speaker 04:
You're not supposed to put on handcuffs in a way that causes injury in the process to the suspect.

[00:12:33] Speaker 04:
Okay, thank you.

[00:12:34] Speaker 00:
Thank you, counsel.

[00:12:38] Speaker 00:
We're here from the city, the town.

[00:12:48] Speaker 02:
May it please the court.

[00:12:50] Speaker 02:
The court's questions just now really illuminate

[00:12:53] Speaker 02:
the lack of merit to the appeal.

[00:12:55] Speaker 02:
The issue here is force, whether or not it was reasonable under the Fourth Amendment, and the test is objective reasonableness.

[00:13:04] Speaker 02:
Graham v. Conner makes that clear and makes it explicit.

[00:13:07] Speaker 02:
That's the very point of Graham v. Conner.

[00:13:10] Speaker 02:
Summary judgment was proper, and this Court should affirm summary judgment in favor of all the defendants.

[00:13:17] Speaker 02:
The issues are whether or not the force was objectively reasonable under the totality of

[00:13:23] Speaker 02:
And equally meritorious is that all of the defendants are protected by qualified immunity.

[00:13:30] Speaker 02:
The court's questions, particularly Judge Collins made it clear that the issue of probable cause to take into custody under Title 36, ARS 36 525, is a given.

[00:13:42] Speaker 02:
It is admitted that they had the right to take custody.

[00:13:46] Speaker 02:
So given that they have the right to take custody, we look right to Graham and also Scott B. Harris.

[00:13:53] Speaker 02:
And once you have the right to take custody, by definition, there is a level of force that can be used to take somebody in custody against their will.

[00:14:02] Speaker 02:
Involuntary.

[00:14:03] Speaker 02:
That's what is involuntary, taking custody.

[00:14:06] Speaker 02:
When they resist, police are allowed under the Fourth Amendment to use a higher level of force, provided that it is objectively reasonable.

[00:14:15] Speaker 02:
And the district court founds that the level here was moderate.

[00:14:19] Speaker 02:
And there's even a case in this circuit, the Adon case,

[00:14:23] Speaker 02:
Adon versus Sanford, that says this type of force is moderate.

[00:14:28] Speaker 05:
Well, I mean, if you're thrown down with enough force onto your knee to break the knee, that doesn't sound very moderate to me.

[00:14:38] Speaker 02:
But that's not the case here.

[00:14:40] Speaker 02:
As you already said, when the district court gave just allowing, considering the evidence and inferences in the light most favorable to Mr. Smith,

[00:14:50] Speaker 02:
push.

[00:14:51] Speaker 02:
You didn't see that.

[00:14:52] Speaker 02:
Well, if you didn't see that, a forciare, you did not see throwing down.

[00:14:58] Speaker 02:
And that was what was clearly rejected.

[00:15:00] Speaker 02:
That was really how the district court handled this, is that the best I can say is, is that these videos clearly show, in other words, we said he fell on his own actions.

[00:15:14] Speaker 02:
This record, as you said, was generous, saying maybe there's a push, maybe there's a pull.

[00:15:20] Speaker 02:
But what there's clearly not, and that takes you right into Scott v. Harris, is that there's not this throwing down.

[00:15:27] Speaker 02:
That would be a higher level of force.

[00:15:29] Speaker 02:
Also, we would argue that that would also be reasonable, but we don't have to go there because the video evidence is what is so clear here.

[00:15:38] Speaker 02:
So when you look at the reasonableness of Graham, and we all know, and these are very important principles when it governs police conduct, we judge officers

[00:15:48] Speaker 02:
on the scene in the moment they're acting, not in hindsight with 2020 scrutiny like we're in some laboratory.

[00:15:55] Speaker 02:
We have to allow for police to make judgments, and they act in split-second moments that are often, as the district court found, triggered by resistance, which is also not contested here.

[00:16:08] Speaker 02:
So they admit probable cause to take into custody under Title 36 and resistance.

[00:16:14] Speaker 02:
So now in resistance, you have in this split-second moment,

[00:16:18] Speaker 02:
the tense, uncertain, and rapidly evolving circumstances that is one of the hallmarks of Graham.

[00:16:25] Speaker 02:
And so then you look to what Scott said, and you see a lot of their argument, it really is misplaced.

[00:16:33] Speaker 02:
It's not that the court is somehow making at the district court level a credibility assessment on their expert, is that it's, as the court's question showed, it's just not relevant.

[00:16:43] Speaker 02:
What's relevant here

[00:16:45] Speaker 02:
is the level of force that's used.

[00:16:47] Speaker 02:
That's the Fourth Amendment inquiry.

[00:16:50] Speaker 02:
We're not talking about whether you complied with policy or procedure at this level.

[00:16:54] Speaker 02:
When you have a record like this, where with video evidence, and that's why Scott V. Harris is so important here, because that video evidence shows that you don't have the throwing down.

[00:17:05] Speaker 02:
And so what you have is a moderate level of force that is reasonably, objectively appropriate for this moment in time

[00:17:15] Speaker 02:
because he's actively resisting.

[00:17:17] Speaker 02:
And this is what you said.

[00:17:20] Speaker 02:
He's really struggling.

[00:17:21] Speaker 02:
I mean, if I quote the court's questions back to you, it makes the case to affirm summary judgment.

[00:17:27] Speaker 02:
Really struggling.

[00:17:28] Speaker 02:
He is not cooperating.

[00:17:31] Speaker 02:
And they did not tackle him.

[00:17:33] Speaker 02:
See, that's where the video, and although that would fit within the range of what's reasonable in

[00:17:39] Speaker 02:
in our assessment and argument, we don't have to go there because the video refutes that.

[00:17:44] Speaker 02:
And so that's the totality of this record.

[00:17:47] Speaker 02:
And then when you look to Scott.

[00:17:49] Speaker 05:
The video does not make clear why everyone goes down.

[00:17:53] Speaker 05:
It just, it's not clear why it happened.

[00:17:56] Speaker 05:
You don't really have a front row seat to really see.

[00:18:00] Speaker 05:
You just see that he goes down.

[00:18:03] Speaker 05:
I mean, you don't see like some sort of shove or violent slam down, but he goes down.

[00:18:08] Speaker 05:
And some of them, you know, lean forward as well.

[00:18:12] Speaker 02:
But as you, respectfully, as you said in your questions to Apollon's counsel, what it does not show is something that would be excessive.

[00:18:22] Speaker 02:
They have the burden of proof.

[00:18:24] Speaker 02:
I mean, we move for summary judgment, but we showed through the evidence, through not just the testimony of the involved officers, but that video evidence.

[00:18:33] Speaker 02:
And what they've tried to do is they've tried to make up facts.

[00:18:37] Speaker 02:
And I don't say that in a

[00:18:38] Speaker 02:
negative way, but they speculate.

[00:18:42] Speaker 02:
And we have hard evidence.

[00:18:43] Speaker 02:
And the video clearly does not show a throw.

[00:18:46] Speaker 02:
You cannot see that in that video.

[00:18:48] Speaker 02:
And there's two videos from two angles.

[00:18:50] Speaker 02:
Admittedly, their angles are close.

[00:18:52] Speaker 02:
But as is often the case with body cameras, when you get close in, it's usually another officer's body camera that helps see what individual officers are doing.

[00:19:01] Speaker 02:
And you just don't see that.

[00:19:03] Speaker 02:
So again, you would have to somehow leave it to a jury on this record

[00:19:08] Speaker 02:
to confront and I don't believe that again respectfully I would phrase it the way you did to counsel that you just don't see it and there's not even the push or pull but how could a jury then be asked to speculate?

[00:19:23] Speaker 02:
I mean you just don't get there.

[00:19:24] Speaker 02:
This video evidence is clear when it comes to what did not happen and what did not happen is objective excessive force.

[00:19:32] Speaker 02:
It's objectively reasonable.

[00:19:35] Speaker 02:
Let's also talk about that

[00:19:38] Speaker 02:
Harris, Scott V. Harris, in footnote eight says this is a pure question of law.

[00:19:43] Speaker 02:
It's a very significant part of Scott V. Harris, because it is for the court.

[00:19:49] Speaker 02:
It's not for an expert, and respectfully, both sides have police practices expert.

[00:19:53] Speaker 02:
They're hired.

[00:19:54] Speaker 02:
They're hired to give opinions.

[00:19:56] Speaker 02:
But under rule 56, we're here to review the facts.

[00:20:00] Speaker 02:
And the facts have to be based on admissible evidence.

[00:20:04] Speaker 02:
Now we do take issue with the fact that they submitted an unsworn report to this court.

[00:20:08] Speaker 02:
I mean, that's just hearsay.

[00:20:10] Speaker 02:
And to address your question, Your Honor, about Monell, Monell's not in this case.

[00:20:16] Speaker 02:
They don't contest Monell.

[00:20:19] Speaker 02:
So when you go through a lot of the opinions that were offered by their police practice expert,

[00:20:23] Speaker 02:
He's talking about what supervisors should do and how training under proper policy, you don't have a monel claim.

[00:20:29] Speaker 02:
You don't have a monel claim because of some unconstitutional custom policy or practice, and you do not have a monel claim for supervisory liability.

[00:20:39] Speaker 02:
And so you certainly don't have an underlying constitutional

[00:20:43] Speaker 02:
claim that they've established.

[00:20:44] Speaker 02:
So that's the condition preceded in reaching Monel.

[00:20:47] Speaker 02:
But Monel's already been resolved.

[00:20:49] Speaker 02:
Summary judgment was granted.

[00:20:50] Speaker 02:
They're not disputing.

[00:20:51] Speaker 02:
It's not an appeal.

[00:20:52] Speaker 02:
But your question to him is very indicative of why this record is so strong for you to affirm.

[00:20:59] Speaker 02:
Because what we're dealing with is the objective reasonableness under the Fourth Amendment of the force used at the moment they used it, which again is moderate.

[00:21:09] Speaker 02:
Now, what else do we have here?

[00:21:13] Speaker 02:
We have uncontradicted testimony and findings that they don't contest, that Smith, in his resistance, grabbed, squeezed, and bent the fingers of Sergeant Johnson.

[00:21:26] Speaker 02:
That's active resistance.

[00:21:29] Speaker 02:
That factor, and again, we always look at the totality of factors, but that's a huge factor.

[00:21:34] Speaker 02:
You don't have someone that's just sitting there in a typical passive case.

[00:21:38] Speaker 02:
You have someone like you said, Your Honor,

[00:21:40] Speaker 02:
He's actively resisting, he's really struggling, and he's grabbing and bending fingers of a police officer who's simply trying to take him into custody and put cuffs on him.

[00:21:52] Speaker 02:
That's the level of force here.

[00:21:54] Speaker 02:
Moderate, low moderate, objectively reasonable.

[00:21:58] Speaker 02:
Let me also suggest something that I think is very significant.

[00:22:06] Speaker 02:
And we made this argument in the district court.

[00:22:08] Speaker 02:
It's not part of the district court's opinion,

[00:22:10] Speaker 02:
When you make a constitutional claim, it is the plaintiff's burden to put the case on each individual defendant.

[00:22:18] Speaker 02:
Now, there's no basis for any claim against any defendant, but they do have an obligation to make a case, a constitutional claim against each individual.

[00:22:30] Speaker 02:
about six officers that are named here, and they don't distinguish who did what.

[00:22:35] Speaker 02:
And if I go back to your question earlier about what is unclear about the video, and certainly there's nothing unclear about the moderate level of force, but where do they ever make the claim against any particular officer?

[00:22:48] Speaker 02:
And since they can't do that, it's another reason to affirm for this court.

[00:22:52] Speaker 02:
And we did present it in the district court, and it's certainly a basis here for this court.

[00:23:00] Speaker 02:
When you get past that aspect, there's qualified immunity, which they can't get around.

[00:23:06] Speaker 02:
And qualified immunity is controlled by the Casella case.

[00:23:10] Speaker 02:
The Casella case came down in 2018.

[00:23:15] Speaker 02:
And the Casella case makes it very, very clear that we don't use these general pronouncements of police shouldn't use excessive force and a Fourth Amendment claim.

[00:23:26] Speaker 02:
No, no, no, that's not how.

[00:23:27] Speaker 02:
you have to establish it.

[00:23:28] Speaker 02:
And he's already pretty much conceded the argument to one of the court's questions.

[00:23:32] Speaker 02:
What you have is you have no case law that is supporting excessive force in this case such that an officer would be on notice that this is unreasonable to try to handcuff someone in this moment, that they bring out a second handcuffs

[00:23:50] Speaker 02:
So they're trying to just create a little more length in the handcuffs to get them.

[00:23:54] Speaker 02:
There's no case that supports their position that an officer would be on notice or anyone other than the plainly incompetent, right?

[00:24:03] Speaker 02:
Isn't that the standard?

[00:24:04] Speaker 02:
It's such an important standard that qualified immunity protects all police officers

[00:24:10] Speaker 02:
other than the plainly incompetent or officers that act knowingly in violating people's rights.

[00:24:17] Speaker 02:
That's not this case here.

[00:24:18] Speaker 02:
This record is so strong that, as you said, the police are there for a very long time.

[00:24:23] Speaker 02:
And then there's a point where it's time to go.

[00:24:26] Speaker 02:
They tried very hard to get him to go voluntarily.

[00:24:28] Speaker 02:
That's their mission.

[00:24:29] Speaker 02:
That was Sergeant Johnson's plan.

[00:24:31] Speaker 02:
He had his five or six point plan.

[00:24:33] Speaker 02:
But then ultimately, it's time to go.

[00:24:36] Speaker 02:
And they say, we want to put handcuffs on you.

[00:24:39] Speaker 02:
He's really struggling, again, to use your words.

[00:24:41] Speaker 02:
He's resisting actively, and they cuff him.

[00:24:45] Speaker 02:
And then once they cuff him, there's no more force to get up, take him to the patrol car, and ultimately to the police station, and ultimately to the hospital.

[00:24:53] Speaker 05:
What is the issue of whether they made him put weight on the leg?

[00:24:59] Speaker 02:
As the district court found, that's not.

[00:25:01] Speaker 02:
You can look at that video, all the videos, and you won't see that.

[00:25:06] Speaker 02:
They are assisting him.

[00:25:08] Speaker 02:
They are dragging him.

[00:25:08] Speaker 02:
But the key point on that, and now you went into the other issue that he didn't argue right now, but I'll address it, which is the medical aspect.

[00:25:16] Speaker 02:
So there's two aspects to that.

[00:25:17] Speaker 02:
One is, did they have him put weight on a leg where you would say it's unreasonable for them, because there's nothing that says that they would know that at the time.

[00:25:28] Speaker 02:
So again, we judge this from objective reasonableness of the officers acting in the moment.

[00:25:33] Speaker 02:
And there's no injury that you could say,

[00:25:37] Speaker 02:
was caused by whatever, wait or not wait, is getting him to the car.

[00:25:42] Speaker 02:
And there's certainly no evidence that a delay, which was, what, a five minute delay, they take him to the police station, ultimately paramedics see him immediately, and then he's taken to the hospital, and there's no evidence in this record.

[00:25:53] Speaker 02:
I mean, you question whether there's any evidence at all about a broken leg, and if we rely on this record, but there's certainly no causation.

[00:26:00] Speaker 05:
Did you seek in discovery the hospital records from that visit?

[00:26:04] Speaker 02:
We did.

[00:26:05] Speaker 05:
No one put them in the record?

[00:26:06] Speaker 02:
They did not.

[00:26:10] Speaker 05:
And I'm, I'm, you didn't put them in response.

[00:26:13] Speaker 02:
I personally did not.

[00:26:15] Speaker 02:
Uh, I could, I could tell you that I, I'm, I'm accepting what the allegations do exist, but nobody, but it's not in the summary judgment record to what they say.

[00:26:27] Speaker 02:
It's not before this court.

[00:26:29] Speaker 02:
So, but even if you accept that it's, it's a one sentence aspect, he had an injured leg.

[00:26:34] Speaker 02:
Okay.

[00:26:35] Speaker 02:
No evidence that either.

[00:26:37] Speaker 02:
Waping put on it caused a greater injury or an aggravation of injury and no evidence that a five minute delay in driving him to the police station first and then to the hospital caused any additional injury.

[00:26:50] Speaker 02:
So that claim clearly fails.

[00:26:51] Speaker 02:
It fails under both that it's not excessive force.

[00:26:55] Speaker 02:
There's nothing objectively unreasonable about what the police did in these, again, tense, uncertain, rapidly evolving circumstances.

[00:27:02] Speaker 02:
And there's no case that would support them, so qualified immunity would also

[00:27:06] Speaker 02:
protect that aspect.

[00:27:10] Speaker 02:
I've got 39 seconds left and I just want to point out when you look at the three issues that they frame per appeal, candidly they're not the correct issues.

[00:27:19] Speaker 02:
We've already addressed the expert and Senator Karen Breach isn't the issue and they have no cases to support qualified immunity.

[00:27:25] Speaker 02:
What this case is ultimately about is that with the video and with the totality of the record,

[00:27:33] Speaker 02:
this question of law that you're going to decide should be decided just like the district court.

[00:27:39] Speaker 02:
It was objectively reasonable under the totality of circumstances.

[00:27:43] Speaker 02:
And equally true, all these officers.

[00:27:47] Speaker 02:
Notwithstanding what I've said that they can't put the case on any individual officer, all these officers are protected by qualified immunity.

[00:27:54] Speaker 02:
And so we ask you to affirm summary judgment.

[00:27:56] Speaker 00:
All right, thank you, Council.

[00:28:13] Speaker 04:
One thing I like about oral arguments is the last place in America you can go and tell somebody they're full of beans and do it politely and not have somebody hit you for it.

[00:28:22] Speaker 04:
It really is a question for the jury to decide whether there was a reasonable amount of force that was used.

[00:28:29] Speaker 04:
The court asked about precedent on using reports.

[00:28:32] Speaker 04:
There's the Mellon case, M-E-L-L-E-N, Mellon versus when, W-I-N-N, Mellon versus when.

[00:28:40] Speaker 04:
900 Fed 3rd, 1085 1104, 9th Circuit, 2018.

[00:28:46] Speaker 04:
And the court said that the police practice expert report should have been admitted to assist the trier fact in determining whether the conduct deviated so far from institutional norms that the jury could conclude that the defendant was reckless or deliberately indifferent.

[00:28:59] Speaker 04:
The Mellon case cited and relied on a 7th Circuit case, Jimenez versus City of Chicago.

[00:29:05] Speaker 04:
That's even better as far as the language, it says,

[00:29:09] Speaker 04:
Expert testimony regarding relevant professional standards can give a jury a baseline to help evaluate whether a defendant's deviations from those standards were merely negligent or were so severe or persistent as to support an inference of intentional or reckless conduct that violated a plaintiff's constitutional right.

[00:29:29] Speaker 04:
Jurors don't know really what police officers are supposed to do.

[00:29:34] Speaker 04:
They see things in television and movies that are just heartbreaking.

[00:29:38] Speaker 04:
you know, excessive force, knock them down, step on them, kick them, handcuff them, and this is the way you're supposed to treat people that are suspects.

[00:29:45] Speaker 04:
This is how you're supposed to do it.

[00:29:47] Speaker 04:
They really need to have police practices experts to say, no, these are the guidelines you're supposed to follow, protocols, procedures.

[00:29:53] Speaker 04:
By the way, take a look at this town's own guidelines, its own policies.

[00:29:58] Speaker 04:
All of these things were violated in this particular case.

[00:30:01] Speaker 04:
It's really up for the trier of fact to decide.

[00:30:04] Speaker 04:
As far as the injury on

[00:30:08] Speaker 04:
The district court did acknowledge lack of clarity as to whether it's exactly what happened, but construed it that they collectively pushed the Pope Smith forward.

[00:30:17] Speaker 05:
I have to say I'm very puzzled.

[00:30:18] Speaker 05:
The records exist.

[00:30:19] Speaker 05:
We now know that.

[00:30:20] Speaker 04:
Yes.

[00:30:21] Speaker 05:
And you didn't give them to the district court when you were claiming what the injuries were.

[00:30:25] Speaker 05:
Why?

[00:30:25] Speaker 04:
Not for that fracture.

[00:30:27] Speaker 04:
I don't know.

[00:30:28] Speaker 04:
You know, lacking, I don't know why they didn't go get the records and put it into the record.

[00:30:33] Speaker 04:
But at the minimum, even the district court acknowledged that.

[00:30:38] Speaker 04:
Smith's yell as he went down also supports Smith's, that Smith's struck his knee on the floor before going all the way down.

[00:30:44] Speaker 04:
So there's evidence he hurt, he got hurt.

[00:30:47] Speaker 04:
The extent of the hurt is a question.

[00:30:49] Speaker 04:
And that would really go to the jury saying, well, we'll give you a dollar for your injuries or we'll give you $100 or $1,000 or whatever it may be.

[00:30:57] Speaker 04:
I mean, that really goes to the amount of the damages more than anything else, I submit.

[00:31:03] Speaker 04:
I'd love many more questions.

[00:31:04] Speaker 04:
If not, I've used my time.

[00:31:06] Speaker 01:
Thank you, counsel.

[00:31:06] Speaker 04:
Thank you, your honor.

[00:31:08] Speaker 01:
Thank you to both counsels.

[00:31:09] Speaker 01:
The case just argued is submitted for decision by the court.

[00:31:12] Speaker 01:
That completes our calendar for the morning.

[00:31:14] Speaker 01:
We are on recess until 9.30 a.m.

[00:31:16] Speaker 01:
tomorrow morning.

[00:31:32] Speaker 00:
All right.

[00:31:32] Speaker 00:
This is the court for this session and adjourned.