[00:00:01] Speaker 04:
Thank you.

[00:00:01] Speaker 04:
Next, we have Payne versus Fulton.

[00:00:09] Speaker 03:
Good morning, Your Honors.

[00:00:10] Speaker 03:
May it please the court, my name is Andrea Coit.

[00:00:13] Speaker 03:
I represent the defendants in this case, Deputy Connor Santini and Lane County Deputy Zachary Fulton.

[00:00:21] Speaker 03:
I'd like to reserve two minutes for my rebuttal, if possible.

[00:00:25] Speaker 03:
We are before the court on an appeal from the denial of qualified immunity to our two deputies.

[00:00:32] Speaker 03:
It is our position in this appeal that the district court applied the wrong test, the wrong analysis when evaluating whether the force that was used by deputies Santini and Fulton was objectively reasonable as a matter of law.

[00:00:48] Speaker 03:
The District Court purported to analyze Mr. Payne's claim of excessive force under the 14th Amendment.

[00:00:55] Speaker 03:
Mr. Payne was in the Sallieport of the Lane County Jail, having already been seized by the Eugene Police Department when he was delivered to our facility.

[00:01:05] Speaker 03:
Under Supreme Court precedent and this Court's precedent, it is our position that the 14th Amendment was the correct analysis to apply.

[00:01:15] Speaker 03:
The plaintiff in this case disagrees, arguing that the Fourth Amendment continues to apply to Mr. Payne while he was at the Lane County Jail.

[00:01:25] Speaker 03:
But from my reading of the cases from the circuit and from the U.S.

[00:01:31] Speaker 03:
Supreme Court,

[00:01:32] Speaker 03:
It appears that the test itself is the same, regardless of whether we're looking at the Fourth or the Fourteenth Amendment.

[00:01:40] Speaker 03:
We look at whether the force that was used in this situation was reasonably, objectively reasonable under the circumstances.

[00:01:48] Speaker 00:
Council, could I ask you a procedural question?

[00:01:51] Speaker 00:
Yes.

[00:01:53] Speaker 00:
In order for us to have appellate jurisdiction in a qualified immunity appeal, there can be no genuine issues of material fact that we're resolving.

[00:02:01] Speaker 00:
We don't do that.

[00:02:02] Speaker 00:
So in the typical case, you, the movement, have to assume the opposite parties the truth of the allegations to avoid the fact issue.

[00:02:12] Speaker 00:
My question, though, is whether that changes because of the Supreme Court's Scott versus Harris opinion that allows us to look at things such as the Sally Porte video

[00:02:22] Speaker 00:
the body cam video where that gives an undisputed picture of what occurred.

[00:02:27] Speaker 00:
What's your position on that?

[00:02:30] Speaker 03:
Thank you for the question, Judge.

[00:02:31] Speaker 03:
Our position on that is that under the Scott v. Harris case, the Supreme Court has said that video evidence is undisputed evidence.

[00:02:39] Speaker 03:
And so when we have clear video evidence, as we do in this case, the court does not take the facts in the light most favorable to the nonmoving party.

[00:02:50] Speaker 03:
They take it in the light shown by the video evidence.

[00:02:55] Speaker 04:
My understanding is the district court had the video, correct, and said even viewing the video, and my understanding is district court understood that, said viewing the video that established certain undisputed facts like timing, place, but said even viewing the video there's genuine factual disputes.

[00:03:17] Speaker 04:
resolved those said and then did the analysis saying assuming those factual disputes are resolved in favor of the non-moving party.

[00:03:24] Speaker 04:
Here's my qualified immune analysis.

[00:03:26] Speaker 04:
That is the same analysis we're supposed to engage in now.

[00:03:30] Speaker 04:
Is that correct?

[00:03:33] Speaker 03:
I agree with your recitation of what happened and what the district court found.

[00:03:37] Speaker 03:
It is our position on appeal that the district court considered disputed facts that are not material

[00:03:45] Speaker 03:
to this case when the proper analysis is used.

[00:03:49] Speaker 03:
And I'll explain that with your indulgence.

[00:03:53] Speaker 03:
I am not here asking this court to find that any of the facts that the court either found against us or found were disputed were in fact not disputed.

[00:04:04] Speaker 03:
We are not asking for any change in factual findings.

[00:04:06] Speaker 03:
It is our position that the facts that the court considered and said there's a disputed issue of material fact, for instance,

[00:04:15] Speaker 03:
on whether Mr. Payne, at the time he was in the custody of the Lane County sheriffs, whether he was actively resisting, passively resisting, or was resisting, moving about because he was struggling for breath.

[00:04:30] Speaker 03:
Under the test that should apply in this case, the 14th Amendment, where we look to see if the force that was used under these circumstances was rationally related to achieve a legitimate government interest,

[00:04:42] Speaker 03:
It doesn't matter why he was moving.

[00:04:46] Speaker 03:
So that fact, be it disputed or not, is not material to the proper analysis.

[00:04:52] Speaker 02:
Let me just try to nail down the standard and the construct here.

[00:04:58] Speaker 02:
Because when you filed your initial brief, we're talking about the Fourth Amendment.

[00:05:04] Speaker 02:
And then, at least in the district court, I should say, we're talking about the Fourth Amendment.

[00:05:09] Speaker 02:
And then in your brief, you're saying, well, no,

[00:05:12] Speaker 02:
We're not really doing that.

[00:05:14] Speaker 02:
We're talking about this person as a pretrial detainee, and now you're saying it's the 14th Amendment.

[00:05:20] Speaker 02:
Do I have the timing right of how this argument has evolved?

[00:05:25] Speaker 03:
We've always taken the position that Mr. Payne was subject to a 14th Amendment analysis.

[00:05:31] Speaker 03:
We may have stated in the brief, even assuming the Fourth Amendment applies as the plaintiff contends,

[00:05:40] Speaker 03:
Analysis is the same.

[00:05:42] Speaker 03:
Was it objectively reasonable under the facts of this case?

[00:05:45] Speaker 02:
But in the district court, it's analyzed as a Fourth Amendment violation, and that's a reasonableness standard, right?

[00:05:52] Speaker 03:
The district court, yes.

[00:05:54] Speaker 03:
The district court said that he was using, excuse me, the court was using a Fourteenth Amendment analysis, but then the actual analysis that was used in the decision was a Fourth Amendment analysis.

[00:06:07] Speaker 03:
All right, thank you.

[00:06:08] Speaker 04:
And what is your authority for the proposition that the reason the defendant may have been moving, excuse me, why Mr. Payne may have been moving was completely irrelevant to the totality of the circumstances analysis under the 14th Amendment?

[00:06:30] Speaker 03:
So in the Kingsley versus Hendrickson U.S.

[00:06:35] Speaker 03:
Supreme Court case, the court explained that the objective reasonals of force used against a pretrial detainee must account for the legitimate interests that stem from the government's need to run a facility in which the individual is detained.

[00:06:49] Speaker 03:
So the court must appropriately defer to the policies and the practices of the jail that it believes are needed to preserve the internal order and security.

[00:06:59] Speaker 03:
Now the court in Kingsley citing to Bell versus Woolfish explained the 14th Amendment protects a pre-trial detainee from excessive force that amounts to punishment and the detainee can prove this force is excessive by showing that the actions are not rationally related to a legitimate non-punitive purpose or that they appear excessive in relation to that purpose.

[00:07:21] Speaker 03:
So in this case, undisputed facts in the,

[00:07:29] Speaker 03:
Mr. Payne is handcuffed when he arrives at the Lane County Jail.

[00:07:33] Speaker 03:
He's in the back of the car.

[00:07:35] Speaker 03:
He is admittedly incoherent, non-responsive.

[00:07:43] Speaker 03:
When he's delivered to the jail, the timeframe here is also important under the facts and circumstances of this case.

[00:07:51] Speaker 03:
Mr. Payne arrives at the Lane County Jail on March 27th of 2020.

[00:07:56] Speaker 03:
This is the height, well, it's the beginning of COVID.

[00:08:00] Speaker 03:
And the Lane County Jail had implemented that day was the first day of its revised COVID policies that every person who is brought to the jail must be temperature screened before they're brought in.

[00:08:13] Speaker 04:
And we've seen the video in the district court, I think correctly laid out the timing after Mr. Payne's temperature was taken.

[00:08:24] Speaker 04:
continued to be body force pressure applied to his back for approximately a minute or more.

[00:08:36] Speaker 04:
Why was that necessary at that point?

[00:08:39] Speaker 03:
Thank you, Your Honor.

[00:08:40] Speaker 03:
So the other policy that is material here

[00:08:44] Speaker 03:
again undisputed that this was a policy of the Lane County Jail, was that any person who is either reported to be combative or observed to be combative when they're brought to the jail will be placed in leg restraints before they are taken into the jail and subjected to the medical staff's medical screening.

[00:09:03] Speaker 03:
It is a safety issue and under Kingsley it is entitled to deference.

[00:09:09] Speaker 03:
The jail is allowed to enforce its policies.

[00:09:12] Speaker 03:
So in the video,

[00:09:14] Speaker 03:
We see Deputy Santini, he's the one that initially had a knee on Mr. Payne's lower right side of his back.

[00:09:26] Speaker 03:
Immediately the deputy, across from him, across from Mr. Payne's body, Deputy Pfeiffer said, get your knee off his back.

[00:09:35] Speaker 03:
And Deputy Santini immediately responded.

[00:09:39] Speaker 03:
it was 17 seconds that the knee was on the back.

[00:09:42] Speaker 03:
That is not evidence of an intent to punish.

[00:09:45] Speaker 03:
So under the 14th Amendment, we're looking at whether or not it was reasonable for them to guide him to the ground, hold him in that position, and the longer use of the force to hold him still with Deputy Fulton's hand on the man's head, on Mr. Payne's head,

[00:10:06] Speaker 03:
and his knee on the top shoulder was because they were still trying to put the leg restraints on.

[00:10:13] Speaker 03:
From the video you can see the entire time.

[00:10:15] Speaker 03:
the 92nd period in which Mr. Payne is laid on the ground until he suffers the cardiac arrest, the deputies at his feet are still trying to put on the leg restraints.

[00:10:24] Speaker 03:
So was their decision, our deputy's decision to maintain the pressure to hold him still, was that rationally related to the objective of getting those leg restraints on?

[00:10:35] Speaker 04:
But that has to be within the context where the deputies were on notice that the use of that type of pressure on his back was

[00:10:44] Speaker 04:
risking seriously bothering the injury or death, correct?

[00:10:50] Speaker 03:
Yes, absolutely.

[00:10:51] Speaker 03:
Had they done some of the actions that are seen in the cases that were relied on by the district court to deny qualified immunity on the second prong, Drummond, for example, had they actually sat on his back or put

[00:11:07] Speaker 03:
held down his neck or done something that showed that they were not using force for the purpose of helping.

[00:11:16] Speaker 03:
This was a punitive action that was being taken.

[00:11:19] Speaker 03:
There's no evidence of that in this record.

[00:11:23] Speaker 03:
A mistake of putting a knee on a back, it's immediately corrected as soon as it's pointed out.

[00:11:31] Speaker 03:
That is not evidence of an intent to harm Mr. Payne.

[00:11:34] Speaker 03:
And under the 14th Amendment analysis,

[00:11:38] Speaker 03:
There has to be some, the reason the force is used must be punitive if it's going to be excessive.

[00:11:47] Speaker 03:
And you can show that by showing that the force they used was not

[00:11:52] Speaker 03:
rationally related to these two objectives.

[00:11:55] Speaker 03:
First, getting the temperature and second, putting on the leg restraints.

[00:11:58] Speaker 03:
Nothing from the video or from the testimony of these two deputies or the rest of the deputies supports any sort of finding by a rational juror.

[00:12:09] Speaker 04:
I think by your argument, even greater force would

[00:12:14] Speaker 04:
be no problem as long as it was in service of that objective.

[00:12:18] Speaker 04:
I don't think that's the standard, correct?

[00:12:20] Speaker 03:
No, and I agree with that.

[00:12:21] Speaker 03:
It must be rationally related to a legitimate non-punitive purpose or that the actions appear excessive in achieving that purpose.

[00:12:31] Speaker 03:
And under the scenario where we would have in a Drummond case, had that occurred in a facility against a pretrial detainee, those actions most likely would have been

[00:12:44] Speaker 03:
appear excessive, even if in furtherance of a legitimate need of the jail.

[00:12:54] Speaker 03:
So is our position on the first prong that had the court applied the 14th analysis test?

[00:13:02] Speaker 04:
Well, I guess my question comes back to why was pressure on his back, knowing the risk that such pressure

[00:13:13] Speaker 04:
could lead to serious bodily injury or death necessary to achieve the objective, and that's assuming it's a legitimate objective at this point, to either take its temperature or put on the leg shackles.

[00:13:26] Speaker 04:
Why was pressure on his shoulder, on his torso necessary to achieve that objective?

[00:13:36] Speaker 03:
It wasn't.

[00:13:38] Speaker 03:
It certainly wasn't necessary, but was it reasonable?

[00:13:41] Speaker 03:
Was it rationally related?

[00:13:42] Speaker 03:
I mean, that's the standard we're looking at.

[00:13:44] Speaker 03:
I don't believe the facts is found by the district court or that found to be disputed.

[00:13:50] Speaker 03:
So that anyone put pressure directly on Mr. Payne's back?

[00:13:53] Speaker 03:
That anyone put pressure on his neck?

[00:13:55] Speaker 04:
Well, that was the... That's the dispute, and then the district court said, you know, if we resolve the factual disputes in favor of the plaintiff, there is a knee on the rhomboid, which is the upper shoulder on the middle of the back.

[00:14:08] Speaker 04:
I don't know how... I mean, to call it a rhomboid, but it's part of the upper back.

[00:14:12] Speaker 04:
And the same thing, there is the disputed... I mean, I think if you resolved all... The district court said, if you resolve all the factual disputes in favor of the plaintiff,

[00:14:20] Speaker 04:
then there was pressure in two places on his back.

[00:14:27] Speaker 04:
So given that fact, if it wasn't necessary to achieve the objectives that you're talking about, how is that not appearing excessive to achieve the presumably legitimate objectives?

[00:14:45] Speaker 04:
I mean, that's the test.

[00:14:48] Speaker 03:
I think under Kingsley it teaches that the objectively reasonable test under the 14th Amendment protects an officer who acts in good faith.

[00:14:58] Speaker 03:
Here, maybe they put a knee on a shoulder, they put it on a lower back for 17 seconds when they shouldn't have.

[00:15:08] Speaker 03:
Nothing in this record supports a finding that these officers were acting in bad faith, that they were trying to harm Mr.

[00:15:16] Speaker 03:
pain that their actions were gratuitous.

[00:15:21] Speaker 03:
I'm out of time and I want to jump to the second prong if I can.

[00:15:25] Speaker 05:
I'll give you a couple minutes on rebuttal.

[00:15:29] Speaker 05:
I appreciate that.

[00:15:32] Speaker 05:
You can address it on rebuttal.

[00:15:35] Speaker 05:
Okay, thank you.

[00:15:45] Speaker 01:
Good morning.

[00:15:46] Speaker 01:
May it please the court.

[00:15:47] Speaker 01:
My name is Derek Larwick.

[00:15:48] Speaker 01:
I represent the estate of Landon Payne in this case.

[00:15:52] Speaker 01:
As this court has noted, factual disputes are not the jurisdictional province of the court right now.

[00:16:00] Speaker 01:
We're looking at heirs of law.

[00:16:02] Speaker 01:
And so in considering heirs of law, we're talking about what test applies in addition to the clearly established prong.

[00:16:11] Speaker 01:
The question about what test applies in this case has been changed a few times from Lane County's or the deputies perspective so in the trial court as Judge McEwen noted They they moved for summary judgment they cited as been this court's decision Espinosa which recites the four gram factors, okay?

[00:16:32] Speaker 01:
I think it also cites to Drummond and Those they asked the court to apply those factors the court did so and

[00:16:38] Speaker 01:
Each of the trial courts order has headings for each of the factors.

[00:16:46] Speaker 01:
And now they argue that Mr. Payne should have been considered a post-arrayment pre-trial detainee on page 30 of their opening brief.

[00:16:55] Speaker 01:
And they ask for factors that are more akin to those in Kingsley.

[00:17:00] Speaker 01:
Kingsley was a case where the US Supreme Court

[00:17:04] Speaker 01:
Said that it was a 30-day detention 14th amendment analysis yet.

[00:17:10] Speaker 01:
It still applied the same factors in gram Okay, it added a couple of additional factors which we'll talk about in a moment but any time that you're looking at excessive force in this setting The court does a multi-factor analysis to determine whether the force used was objectively reasonable Doesn't matter if it's nominally under the fourth amendment or the 14th amendment

[00:17:34] Speaker 02:
And it wouldn't matter.

[00:17:36] Speaker 02:
I think you're saying about looking at it as a post-trial detainee that generally imagines you in some kind of custody in a facility.

[00:17:45] Speaker 02:
And then there's all kind of other issues, right?

[00:17:47] Speaker 01:
That's correct.

[00:17:48] Speaker 01:
There's so different factors can apply in that setting.

[00:17:51] Speaker 01:
And that's what Kingsley expounded a couple additional factors, one of which was emphasized a moment ago.

[00:17:58] Speaker 01:
In the defendant's reply brief, however, on page eight,

[00:18:04] Speaker 01:
they abandoned this pretrial detainee argument.

[00:18:06] Speaker 01:
And they now say that Mr. Payne was not yet a pretrial detainee.

[00:18:12] Speaker 01:
And they argue for a shocks the conscience standard, which is a non-search and seizure related use of force.

[00:18:18] Speaker 02:
That was the first time, though, in the reply brief that we saw that argument.

[00:18:22] Speaker 01:
Exactly.

[00:18:23] Speaker 01:
And the citation was to Puente versus City of Phoenix, which is a tear gas and pepper spray dispersal case.

[00:18:30] Speaker 02:
So if we go with what they argued, but also just

[00:18:34] Speaker 02:
the framework that you're talking about, which is the Fourth Amendment.

[00:18:40] Speaker 02:
She was about to get the clearly established right, which is, of course, important here.

[00:18:44] Speaker 02:
Drummond is cited, but there are differences with Drummond.

[00:18:49] Speaker 02:
So would you define for us what you believe was the clearly established right?

[00:18:56] Speaker 01:
OK, I'm having to rearrange my argument just a little bit to talk about it.

[00:19:01] Speaker 01:
Do you mind doing that?

[00:19:01] Speaker 01:
Of course.

[00:19:04] Speaker 01:
Drummond articulated a description of the facts in that case, specifically that quote, kneeling on the back and neck of a compliant detainee and pressing the weight of two officers' bodies on him even after he complained that he was choking and in need of air violates clearly established law.

[00:19:28] Speaker 01:
And reasonable officers would have been aware that such was the case.

[00:19:31] Speaker 01:
So that was a 2003 case from this court.

[00:19:34] Speaker 01:
And that was not the case necessarily that established a clearly established right.

[00:19:38] Speaker 01:
It recognized that the right was already clearly established even before the conduct occurred in Drummond.

[00:19:46] Speaker 01:
And since that time, this court has also applied Drummond, and other courts as well, and other circuits even, have applied Drummond for the principle that that right of a handcuffed person who's face down

[00:20:02] Speaker 01:
posing no significant danger or risk to the officers has a right not to be asphyxiated, not to have pressure applied on their back in that setting.

[00:20:11] Speaker 01:
After analyzing the facts under a multi-factor analysis, as required by Graham, Lombardo, and Kingsley, and as the court did here, in some situations, a reasonable jury could still find, based on these disputed facts,

[00:20:32] Speaker 01:
That Mr.. Payne's you know that an individual in that setting had their rights violated and that that was a clearly established right I mean this right has been around for a long time as the as the district court noted The deputies had already been trained on this issue, so this is not something new to them that they were not on notice of

[00:20:56] Speaker 01:
that positional asphyxia was a real danger to handcuffed detainees or arrestees, whatever you want to call them.

[00:21:02] Speaker 00:
Counsel, do you agree that the District Court treated Drummond and its progeny as the cases that guided these officers?

[00:21:14] Speaker 01:
On the prong of, yes, on the prong of clearly established, yes.

[00:21:17] Speaker 00:
And I think Judge McEwen got it at this point.

[00:21:21] Speaker 00:
Drummond is significantly different factually, is it not, from our case?

[00:21:25] Speaker 01:
There are some factual distinctions, but as this- Like major factual distinctions.

[00:21:31] Speaker 00:
But as I understand it, the Supreme Court has emphasized that clearly established law and the actions of an officer cannot be analyzed at a very general level, because if so, you would read qualified immunity out.

[00:21:45] Speaker 00:
So you're looking at, you're tacking close to the facts before you of this case.

[00:21:51] Speaker 00:
It seems to me that Drummond is not instructive to these officers.

[00:21:56] Speaker 01:
So I would disagree with that.

[00:21:58] Speaker 01:
Some of the factual distinctions that were raised by my colleague were the amount of time that the officers were allegedly involved in the asphyxia conduct.

[00:22:13] Speaker 01:
So in Drummond, there's a mention of 20 minutes.

[00:22:17] Speaker 01:
But if you read the case, it does not clearly say that

[00:22:20] Speaker 01:
that the detainee or the arrestee was in that position being asphyxiated for 20 minutes.

[00:22:25] Speaker 01:
It says 20 minutes after Mr. Drummond was taken down, another officer arrived.

[00:22:31] Speaker 01:
Mr. Drummond was hogtied.

[00:22:32] Speaker 01:
One minute later, he went unconscious.

[00:22:35] Speaker 01:
So the opinion itself does not clearly say that there was a 20 minute time span of asphyxia or positional compression.

[00:22:45] Speaker 01:
Another example is,

[00:22:48] Speaker 01:
There were some factors that were mentioned, like for example, that the officers in Drummond were laughing.

[00:22:55] Speaker 01:
And the US Supreme Court has made it clear repeatedly, most notably in Graham and Kingsley, that subjective factors like that are not part of the objective reasonableness analysis.

[00:23:10] Speaker 01:
The argument that the defendant deputies in this case were not forceful, rude, or used in angry tone are also irrelevant.

[00:23:19] Speaker 00:
What about Detective Pfeiffer, who says to Santini, take it off or move it, and then he moves it immediately?

[00:23:28] Speaker 00:
Does that have any bearing on our analysis?

[00:23:32] Speaker 01:
Well, the first part of that statement is evidence to show that Deputy Santini had his knee positioned in a place that Deputy Pfeiffer could at least assess was causing danger to Mr. Payne.

[00:23:47] Speaker 01:
Whether Deputy Santini moves his knee, the video clearly shows that he's still applying pressure.

[00:23:56] Speaker 01:
Might not be the same level of pressure as when he had his other knee elevated and he was placing basically his whole body weight on Mr. Payne.

[00:24:04] Speaker 01:
But all of that goes to the disputes of fact about how much force was actually being applied to Mr. Payne.

[00:24:14] Speaker 00:
When you say there's a fact issue, what about Scott versus Harris?

[00:24:18] Speaker 00:
Are we allowed to view the Sallyport video and the body cam, et cetera, and see what it shows?

[00:24:24] Speaker 01:
Exactly, yes.

[00:24:25] Speaker 01:
The various videos in this case show a lot of things, and there's things that are not apparent on the videos.

[00:24:31] Speaker 01:
For example, a moment ago there was a discussion about placing leg irons on Mr. Payne.

[00:24:37] Speaker 01:
That part cannot be seen from the Sallyport video.

[00:24:39] Speaker 01:
There's too many deputies in the way.

[00:24:41] Speaker 01:
The testimony in the case from the deputy who was putting the leg irons on was that he had had very little trouble putting the leg irons on.

[00:24:50] Speaker 01:
And that was about all we have about leg irons.

[00:24:53] Speaker 01:
So there's a lot of speculation about what was occurring on that part of the video that we can't see.

[00:24:58] Speaker 01:
As the district court also noted, there are other disputes despite the video evidence or perhaps because of the video evidence.

[00:25:06] Speaker 01:
including how much pressure was applied by these various deputies.

[00:25:11] Speaker 01:
And those are issues for the jury to resolve later on in this case.

[00:25:16] Speaker 01:
The district court also noted that citing the Supreme Court's Lombardo decision, several courts, this is a direct quote, several courts have cautioned against misinterpreting movement of limbs

[00:25:34] Speaker 01:
as active resistance when it may be more indicative of an individual's struggle to breathe," end quote.

[00:25:40] Speaker 01:
And that's what happened in this case is the district court determined that any struggle or any movement that was shown by Mr. Payne on the video, on either of the videos, there were jury questions remaining about whether that constituted active resistance, passive resistance, or just a struggle to breathe.

[00:26:04] Speaker 01:
This court has also applied, so getting back to your question about factual distinctions between Drummond, two points in response.

[00:26:12] Speaker 01:
One, this court recognized that the right of a prone, handcuffed detainee who was not actively resisting not to have pressure applied on their back, that right existed before Drummond.

[00:26:26] Speaker 01:
So the facts as they occurred in Drummond do not have to be

[00:26:32] Speaker 01:
exactly the same.

[00:26:33] Speaker 01:
And in fact, this court has applied Drummond and applied the clearly established prong of Drummond to lots of cases that are factually distinguishable, including, and these are all cited in our brief, there was one case where the arrestee was not handcuffed.

[00:26:49] Speaker 01:
There's one where many of them are not field arrests.

[00:26:54] Speaker 01:
For example, there's a psychiatric correctional officer who was, so that must have been in a custodial environment.

[00:27:01] Speaker 01:
where this person had pressure applied.

[00:27:07] Speaker 01:
So getting back slightly to the first prong, even though at the trial court level, the parties agreed about using the Graham factors, the Espinosa factors or the Drummond factors.

[00:27:21] Speaker 01:
They're all the same.

[00:27:24] Speaker 01:
Now, because this is an interlocutory appeal,

[00:27:28] Speaker 01:
The deputies are arguing that there was an error of law and that the wrong factors were applied.

[00:27:33] Speaker 01:
So if we look to other factors that the Supreme Court has used in different cases.

[00:27:39] Speaker 01:
So we have a custodial continuum, basically, between like a field arrest and post arraignment pretrial detainee.

[00:27:49] Speaker 01:
And along that continuum is the case of Graham, obviously, and then you have Lombardo, which is basically a one-day detainee.

[00:27:56] Speaker 01:
And then you have Kingsley, which is a 30-day detainee.

[00:27:59] Speaker 01:
And the factors that the court lays out for those different settings are slightly different.

[00:28:05] Speaker 01:
So we've had very little discussion so far about the Lombardo factors.

[00:28:10] Speaker 01:
Mr. Gilbert in the Lombardo case was a one-day detainee.

[00:28:14] Speaker 01:
So if anything, that's the case.

[00:28:16] Speaker 01:
If there's additional factors that the court should have considered.

[00:28:18] Speaker 02:
Well, I mean, I'm having a little trouble because

[00:28:23] Speaker 02:
viewing him as a post-arrayment detainee, which most of these cases are, because he, on your continuum, he's post-arrest and pre-facility detained, correct?

[00:28:40] Speaker 01:
Correct, yeah.

[00:28:42] Speaker 02:
And what, in your view, is there anything about the Graham factors that wouldn't apply to that situation?

[00:28:50] Speaker 01:
Absolutely not.

[00:28:50] Speaker 01:
We think the court used the right test.

[00:28:52] Speaker 01:
This is a continuation of Mr. Payne's arrest.

[00:28:56] Speaker 01:
The things that the jail deputies were doing at the time were searching his pockets, taking his temperature, which, as the court noted, they'd already completed, and placing leg irons on.

[00:29:06] Speaker 01:
They're continuing the search and seizure of Mr. Payne.

[00:29:13] Speaker 01:
They're actively searching him at the time.

[00:29:16] Speaker 01:
And they have not taken custody of him.

[00:29:19] Speaker 01:
They haven't booked him in.

[00:29:21] Speaker 01:
There's disputes in the record about who had custody of Mr. Payne at that time.

[00:29:25] Speaker 01:
And so as our brief laid out, even if additional factors should have been considered by the district court, which of course were not raised by the deputies below, those factors probably would have been the Lombardo factors.

[00:29:45] Speaker 01:
And the Lombardo factors include

[00:29:47] Speaker 01:
whether there was evidence that the officers had been trained, that pressing down on the back of a prone subject can cause suffocation, whether there was well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk, and that struggles of a prone suspect may be due to oxygen deficiency rather than a desire to disobey officer's commands.

[00:30:13] Speaker 01:
And I mention those because if you read the district court's opinion, they not only cited Lombardo, the court not only cited Lombardo and Kingsley, but also discussed many of those factors, even without being prompted, because they do relate into the Graham analysis.

[00:30:30] Speaker 01:
And I see that my time is just about up.

[00:30:32] Speaker 01:
So with that, I would just ask that this court affirm the district court's denial of qualified immunity in this case.

[00:30:39] Speaker 05:
Thank you, counsel.

[00:30:45] Speaker 03:
If we look at the district court's opinion, it demonstrates why the arrest factors, the seizure in the field factors, are not relevant to the situation that the Lane County deputies found themselves in with Mr. Payne.

[00:31:05] Speaker 03:
The district court found that Mr. Payne's crimes were minimal.

[00:31:09] Speaker 03:
It determined there was a question of fact as to whether Mr. Payne was showing active or passive resistance.

[00:31:15] Speaker 03:
It determined it should have been apparent to the officers that Payne was emotionally disturbed.

[00:31:21] Speaker 03:
And it determined that Payne posed a minimal threat because he was handcuffed in the car.

[00:31:26] Speaker 03:
So under that analysis, the court determined that very minimal force could be used on Mr. Payne because

[00:31:35] Speaker 03:
because he posed very little risk and had committed no crime.

[00:31:39] Speaker 03:
But those considerations make no sense in this situation of this case.

[00:31:45] Speaker 03:
It is undisputed that at this time, EPD refused to cite and release Mr. Payne.

[00:31:51] Speaker 03:
We tried to do that.

[00:31:52] Speaker 03:
We got his warrant cleared and asked them.

[00:31:55] Speaker 03:
We don't want him.

[00:31:56] Speaker 03:
They couldn't go to the hospital.

[00:31:58] Speaker 03:
The Whitebird, the mental health facility, was closed.

[00:32:02] Speaker 03:
Hospitals weren't taking mental health holds.

[00:32:04] Speaker 03:
EPD said you want him booked on a city charge and one of our beds.

[00:32:10] Speaker 03:
Contractually, legally, Lane County had to get him out of the car.

[00:32:14] Speaker 03:
They had to make an effort to have him medically cleared and booked into the jail.

[00:32:18] Speaker 03:
So using no force was not an option.

[00:32:21] Speaker 03:
It made no difference to our deputies what the crime was.

[00:32:24] Speaker 03:
What made a difference was he was not responding to commands to get out of the car.

[00:32:28] Speaker 03:
He had to be removed from the car.

[00:32:32] Speaker 02:
issues, correct?

[00:32:36] Speaker 03:
It was clear from, I think, his appearance there that something was going on.

[00:32:41] Speaker 03:
But they had not been told.

[00:32:43] Speaker 02:
They hadn't been told about?

[00:32:45] Speaker 03:
What they had been told by EPD, which is also undisputed in the record, is that he was resisting in the field, he had been tased several times, and that he was a combative.

[00:32:55] Speaker 03:
There was no evidence given, no information given by Deputy Solario of the Eugene Police

[00:33:02] Speaker 03:
that Mr. Payne had been coherent and calm before he was tased.

[00:33:07] Speaker 02:
So that really, I guess that wasn't my question.

[00:33:10] Speaker 02:
Did they have an understanding or information that this was an arrestee with mental health issues?

[00:33:18] Speaker 03:
No, there's no evidence of that.

[00:33:19] Speaker 03:
Other than how he was behaving.

[00:33:22] Speaker 03:
What was self-evident.

[00:33:23] Speaker 02:
Yeah.

[00:33:24] Speaker 03:
Yeah, and I think you can hear from the officer speaking to him, asking him what

[00:33:31] Speaker 03:
what he was on.

[00:33:32] Speaker 03:
I think there was a presumption he was on drugs.

[00:33:37] Speaker 03:
So back to the county's interest, they had to remove him from the car.

[00:33:43] Speaker 03:
Some force had to be used.

[00:33:45] Speaker 03:
Under the 14th Amendment test, was that force rationally related to getting him from the car?

[00:33:51] Speaker 03:
I don't think there's any dispute.

[00:33:52] Speaker 03:
Santini and Fulton didn't get him from the car.

[00:33:55] Speaker 03:
So that force is not at issue.

[00:33:59] Speaker 03:
And then he dropped his weight.

[00:34:02] Speaker 03:
They laid him to the ground.

[00:34:03] Speaker 03:
There was no other way to get his temperature when he's on the ground moving about than to hold him down for as little time as possible.

[00:34:12] Speaker 03:
And maybe it went further, but that doesn't make it excessive under the 14th Amendment.

[00:34:19] Speaker 03:
Maybe they could have gotten him up 15 seconds earlier.

[00:34:22] Speaker 03:
That doesn't... There was body weight force on his back.

[00:34:30] Speaker 04:
necessary even after his temperature was taken right because that's what the district court said if all factual disputes are resolved in favor of Mr. Payne even after I mean even after his temperature was taken there was body weight force on his back for over a minute so

[00:34:52] Speaker 03:
Deputy Santini's use of force was 17 seconds on his back.

[00:34:57] Speaker 03:
So he needs to be considered separately.

[00:34:59] Speaker 03:
These are individual claims.

[00:35:01] Speaker 03:
Sure.

[00:35:02] Speaker 04:
Then why was that necessary even to take his temperature?

[00:35:04] Speaker 04:
I understand some restraint may have been necessary.

[00:35:08] Speaker 04:
Why was body weight force on his back necessary?

[00:35:11] Speaker 04:
Why weren't there reasonable alternatives of allowing a prone individual handcuffed, lying on the ground, giving him a moment to calm down?

[00:35:22] Speaker 04:
I mean, why was body weight force on his back, knowing the risk that is involved with that, necessary to take his temperature?

[00:35:32] Speaker 03:
Yeah, and I don't think it was necessary.

[00:35:33] Speaker 03:
I don't think anyone in this case argues that it was necessary.

[00:35:37] Speaker 03:
I think the argument is they were acting in good faith.

[00:35:41] Speaker 03:
The force that was applied was not punitive in nature.

[00:35:46] Speaker 03:
And under the 14th Amendment analysis, it is not a constitutional violation what the undisputed facts show happened in this case.

[00:35:53] Speaker 03:
And so we're asking that the constitutional issue be remanded to the district court for an analysis of him under the 14th Amendment as a detainee, whether we call him pretrial, post-trial, what trial.

[00:36:09] Speaker 03:
The fact is he's already been seized.

[00:36:11] Speaker 03:
He is now being handed off to our deputies in a facility.

[00:36:15] Speaker 03:
And they have rules they have to follow before they can take him inside.

[00:36:19] Speaker 03:
Jumping to qualified immunity.

[00:36:20] Speaker 04:
I think you're over your time.

[00:36:22] Speaker 04:
I'll give you just to make your point about the clearly established.

[00:36:28] Speaker 03:
Mr. Payne was in a facility.

[00:36:31] Speaker 03:
He was not out on the field.

[00:36:33] Speaker 03:
He was not initially being seized.

[00:36:35] Speaker 03:
Every reported case that the district court and the plaintiff rely on involve

[00:36:42] Speaker 03:
a person who is being seized for the first time out in the field.

[00:36:47] Speaker 03:
In Drummond, he was being seized allegedly for his own protection.

[00:36:51] Speaker 03:
He had committed no crime.

[00:36:53] Speaker 03:
So the interests of the government are far different in a case where the person is out in the field, their liberty being taken for the first time, as opposed to someone in a facility who they're trying to get into the jail for booking purposes.

[00:37:07] Speaker 02:
The facility he's in is the Sallie Court.

[00:37:11] Speaker 03:
Correct.

[00:37:11] Speaker 03:
He's in the Sallyport there to be moved into the jail.

[00:37:14] Speaker 02:
You know, on this continuum, he's not in a facility.

[00:37:18] Speaker 02:
I agree.

[00:37:19] Speaker 02:
He's like out there in the garage, so to speak.

[00:37:22] Speaker 05:
Thank you.

[00:37:23] Speaker 05:
Thank you.

[00:37:29] Speaker 04:
I believe we are adjourned for the day.

[00:37:31] Speaker 04:
Thank you, Council.

[00:37:33] Speaker 03:
All rise.