[00:00:00] Speaker 03:
Mr. Davis Thank you honors appreciate the opportunity to present my oral arguments on behalf of the appellants the district court aired when denying defendants motion for summary judgment because they are entitled to qualified immunity as Each did not violate a clearly established constitutional right beyond debate after Harvell threatened violence and repeatedly After repeated orders to submit to restraints and warnings that force would be used if Harvell did not submit

[00:00:29] Speaker 03:
Defendants properly used objective reasonable force to secure Harvell and then move him to segregated housing.

[00:00:37] Speaker 02:
So counsel, you started out saying there wasn't clearly established law, but then you are jumping into the facts.

[00:00:44] Speaker 02:
So I want to kind of parse this out because it seems to me you have a tougher case.

[00:00:49] Speaker 02:
on a factual dispute here.

[00:00:54] Speaker 02:
A lot of these cases come up.

[00:00:56] Speaker 02:
We have video evidence or uncontested facts.

[00:00:59] Speaker 02:
That doesn't seem to be the case here.

[00:01:02] Speaker 03:
Well, Your Honor is correct.

[00:01:05] Speaker 03:
You have to go, because it's a motion for summary judgment, you have to go by the facts that are established, the undisputed material facts that are established.

[00:01:12] Speaker 03:
But the thing is you've got to also look at Mr. Harvell's testimony.

[00:01:16] Speaker 03:
I mean, his declarations about how this hell happened, right?

[00:01:20] Speaker 03:
Harvell's version of this event is that, hey, I was kneeling on the ground, they put restraints on me, then they pushed me forward, and they started punching me.

[00:01:31] Speaker 03:
That's his version of the facts.

[00:01:32] Speaker 03:
But if you look at the video, it is clear from the video.

[00:01:35] Speaker 02:
Yeah, well, I mean, that's the question.

[00:01:39] Speaker 02:
Is it clear from the video?

[00:01:40] Speaker 02:
It doesn't seem like it's clear from the video.

[00:01:42] Speaker 02:
The video doesn't.

[00:01:43] Speaker 02:
That's what I'm saying.

[00:01:46] Speaker 02:
a clear video in this case.

[00:01:49] Speaker 03:
The part of the video though that is clear, Your Honor, is that he was not in restraints before he jumped forward into the cell.

[00:01:56] Speaker 03:
So you can't believe his declaration that he was punched beforehand because of the timing of when he says... But that doesn't answer the question about whether he would have been punched after.

[00:02:05] Speaker 02:
I mean, if we get into... Clearly established seems to be your best argument here.

[00:02:10] Speaker 02:
And I mean,

[00:02:12] Speaker 02:
I guess that's what I'm interested in.

[00:02:14] Speaker 02:
OK, so sort of delving into because we basically have two cases, the Manley case from the Ninth Circuit and the Hughes case and from the Supreme Court and Hughes relies on Hudson.

[00:02:30] Speaker 02:
So can you explain to me why those cases don't create a clearly clearly established?

[00:02:37] Speaker 03:
OK, so in in Manley, OK,

[00:02:41] Speaker 03:
which, of course, the court relies on Harvell.

[00:02:44] Speaker 03:
The prisoner was not only restrained in handcuffs and in leg irons.

[00:02:50] Speaker 03:
That was an undisputed fact that he was restrained in leg irons and leg guards.

[00:02:54] Speaker 03:
But President Ledgley was punch, kicked, and stomped after the prisoner was extracted, which is not this case, right, Your Honor?

[00:03:01] Speaker 03:
He's not being punched, kicked, or definitely no signs of punch.

[00:03:04] Speaker 03:
I mean, that's clearly established in the video, right?

[00:03:06] Speaker 03:
No punching, kicking, or after he's being extracted.

[00:03:10] Speaker 00:
How do we know that?

[00:03:11] Speaker 03:
Well, the video shows that he's not being punched, kicked, or hit after being after extracted from the cell.

[00:03:16] Speaker 03:
That's clear in the video.

[00:03:21] Speaker 00:
OK.

[00:03:21] Speaker 00:
So you're saying the clearly established depends on the facts being punched or kicked.

[00:03:28] Speaker 03:
Right, because that's what you have to do.

[00:03:30] Speaker 03:
You have to look at the facts and circumstances of the case in order to make it clearly established.

[00:03:34] Speaker 03:
You've got to look at this, Your Honor.

[00:03:36] Speaker 03:
This is not a case where these officers are going in and saying, hey, we're going to go in and we're going to beat the crap out of this guy.

[00:03:42] Speaker 03:
What it is is that they have a situation where it's more like the Soto case, your honor.

[00:03:47] Speaker 03:
This is a highly volatile instinct, where the inmates in Soto, they said, the inmate sometimes will appear to be docile, and then all of a sudden changes his mind and do that.

[00:03:56] Speaker 03:
And that's exactly what we have here.

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We have an instantaneous reaction by the officers.

[00:04:02] Speaker 03:
You've got to put yourself in the place.

[00:04:03] Speaker 03:
The Supreme Court says that you have to put your place with a deference.

[00:04:08] Speaker 03:
You have to give these officers deference in the place that they're at.

[00:04:10] Speaker 03:
You can't look at this and say, hey, after the fact, maybe they shouldn't have rushed into the cell and done this when he moved himself into the cell.

[00:04:19] Speaker 03:
Maybe they shouldn't have done that.

[00:04:21] Speaker 03:
But the thing is, is they're making an incident reaction to get him in restraints that he is trying to avoid and trying to be put into.

[00:04:29] Speaker 03:
And that's the version you have to look at this.

[00:04:32] Speaker 03:
In the Manley case that your honor cited,

[00:04:36] Speaker 03:
Well, you know, that's not happening.

[00:04:38] Speaker 03:
He's being punched after he's taken out of the cell, after he's in full restraints.

[00:04:42] Speaker 02:
Well, and we'll hear from Apple E on this, but manly, it seems there's even a more fundamental problem, which is they didn't find an underlying constitutional violation.

[00:04:57] Speaker 02:
And manly, as I understand the case, they just said,

[00:05:02] Speaker 02:
there's factual disputes, and they set it back down because of that.

[00:05:05] Speaker 03:
Well, the thing is, you have to do that, though.

[00:05:07] Speaker 03:
You have to go through the two steps of qualified immunity.

[00:05:09] Speaker 03:
First, you have to find whether there's a violation, then you have to find whether the violation was clearly established.

[00:05:13] Speaker 02:
So you think they found a violation in Manly?

[00:05:16] Speaker 03:
Your Honor, I'm going to reply in your recollection.

[00:05:19] Speaker 03:
My recollection was that they did find a violation.

[00:05:23] Speaker 03:
Well, they had to find a violation, because if they didn't find a violation, they couldn't have proceeded forward.

[00:05:28] Speaker 03:
Under the undisputed facts, they found a violation.

[00:05:32] Speaker 03:
They're saying, well, the jury couldn't find otherwise because there's dispute about what happened in the case.

[00:05:39] Speaker 03:
But under the undisputed facts, there had to be found a violation.

[00:05:45] Speaker 00:
So you're resting your position on your view of the video where the district court said he couldn't, he or she, I don't remember, couldn't make that call.

[00:05:58] Speaker 00:
I mean, do we even have jurisdiction to decide whether the district judge was correct in saying there was an issue of fact?

[00:06:06] Speaker 03:
Your Honor, the Supreme Court has now been clear on this in the Beran case and the various cases that I cited in my brief that this court is supposed to then look and just take it and look and find what are the undisputed facts.

[00:06:20] Speaker 03:
And you have jurisdiction then to determine whether there's a violation of clearly established law.

[00:06:25] Speaker 03:
So this court has jurisdiction in this instance.

[00:06:28] Speaker 03:
Even if we've overstated the facts, this court has said, you know, you guys are smart enough to decide whether or not which facts are undisputed and then look at those facts and determine whether or not there's a violation of clearly established law.

[00:06:39] Speaker 03:
And so that's what we've been asking all along.

[00:06:42] Speaker 03:
And so that's what this court has jurisdiction to do.

[00:06:44] Speaker 03:
The Hughes case is, you know, I agree, the Hughes case is a little bit more troubling, but you've got to remember the Hughes case is different from

[00:06:52] Speaker 03:
the particularities of this particular case.

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The Hughes case is not a case in prison.

[00:07:01] Speaker 03:
And at first glance, you'd say, well, hey, maybe it's a little bit more things.

[00:07:05] Speaker 03:
But the thing is, the prison has specific rules about how people have to be restrained before they're moved to a different cell.

[00:07:11] Speaker 03:
And in this case, they have to be put in

[00:07:16] Speaker 03:
hand restraints and leg irons before they're removed.

[00:07:18] Speaker 03:
And here Harvell is definitely trying to avoid.

[00:07:21] Speaker 03:
I mean, at first it appeared that he was going to be compliant, but then he tries to avoid, you know, and it's like the court said in the Soto case.

[00:07:29] Speaker 02:
Can I just tell you what my concern is with Hughes?

[00:07:31] Speaker 02:
Because maybe that'll cut to the chase a little bit.

[00:07:34] Speaker 02:
In Hughes, the Supreme Court said,

[00:07:38] Speaker 02:
that there was a material fact, a dispute of material fact about whether he was beaten after he was handcuffed.

[00:07:50] Speaker 02:
If we take that at face value, I don't understand how we can rule in your favor because it seems to me there is a dispute of material fact here about whether he was beaten after he was in handcuffs.

[00:08:08] Speaker 02:
Well, so address that first point.

[00:08:10] Speaker 03:
OK, so the first point is is that first I would say the video establishes because you have to look at his declaration and compare it to the video.

[00:08:17] Speaker 03:
And I think that's what the district court didn't do.

[00:08:20] Speaker 03:
He's looking at this part of the video after the fact.

[00:08:22] Speaker 03:
And I will admit that once he's in the maelstrom inside, you're not seeing much of what's going on in that video.

[00:08:29] Speaker 03:
But before he goes in, it's clear he's not in restraints, full in restraints, which he has to be before he's... I guess I'm not disagreeing with you, but that doesn't answer the question.

[00:08:40] Speaker 02:
He could have been beaten both before he was in restraints and after he was in restraints.

[00:08:46] Speaker 02:
So I guess I would give you that Hughes is not clearly established as to whether he was beaten before restraints.

[00:08:54] Speaker 02:
I'm trying to grapple with what do we do with that because they didn't find an underlying violation even in Hughes, but there is this statement and so what do we do with it?

[00:09:07] Speaker 02:
Why is that not enough to say it's clearly established that you just categorically cannot beat an inmate after he's in restraints?

[00:09:18] Speaker 03:
Because he's got to not only be in restraints, they said that he was in full restraints and under control.

[00:09:26] Speaker 03:
That's what the thing was.

[00:09:27] Speaker 03:
He was in full restraints and under control.

[00:09:29] Speaker 03:
And that's what we don't have in this case.

[00:09:30] Speaker 03:
And, Your Honor, even if there was evidence to the record establishing that he was punched after he was in restraints,

[00:09:41] Speaker 03:
OK?

[00:09:41] Speaker 03:
You also have to show that there's a maliciously and seditious purpose for the force applied, right?

[00:09:46] Speaker 03:
You've got to show that these officers knew he was in restraints beforehand.

[00:09:50] Speaker 03:
I mean, that's the thing.

[00:09:51] Speaker 03:
You've got to look at this from the officers.

[00:09:54] Speaker 03:
They're doing this within 90 seconds, and they're saying, hey, and they're trying to get him in restraints.

[00:09:58] Speaker 03:
And things are going on.

[00:10:00] Speaker 03:
And the thing is, until they know that he's fully in restraints, then they can't do it.

[00:10:04] Speaker 03:
And any inadvertent touch, Supreme Court says.

[00:10:09] Speaker 02:
Please explain to me how an officer who's putting restraints on the inmate would not know whether he's in restraints because there's more than you're on it.

[00:10:18] Speaker 03:
There's more than one officer there.

[00:10:19] Speaker 02:
But then it's a material issue of factors to put it on.

[00:10:25] Speaker 03:
No, no, no, no, no, your honor.

[00:10:26] Speaker 03:
It's his burden of proof of showing that they knew he has a burden of proof of showing that they knew.

[00:10:31] Speaker 02:
Beforehand you've got some good arguments.

[00:10:33] Speaker 03:
I think you just keep derailing into bad arguments Well your honor I want to go into maybe go into some of the other cases that talk about these these things you know for example Your honor the You know first he doesn't have any injuries at all these injuries are very much minor compared to those of Hughes and I go but also You know I thought just positive.

[00:10:56] Speaker 02:
I mean I understand that that's a factor, but is that just positive

[00:11:00] Speaker 03:
No, because all the factors together show that they didn't violate any of these things, OK?

[00:11:05] Speaker 03:
You take this thing, for example, Lamar case.

[00:11:07] Speaker 03:
They had to use force, right?

[00:11:09] Speaker 03:
I don't think there's any dispute that they had to use force because he was not obeying orders.

[00:11:12] Speaker 03:
I think we can say that that factor clearly goes in our favor.

[00:11:16] Speaker 03:
And you don't even have to talk about that anymore.

[00:11:19] Speaker 03:
The Soto case is more specific and says you just can't say that we can just wait out inmates.

[00:11:25] Speaker 03:
You just can't do that.

[00:11:27] Speaker 03:
The further factor is that we

[00:11:30] Speaker 03:
You know, whether the force was reasonable in light of the force used, OK?

[00:11:34] Speaker 03:
The Whitley case in the Supreme Court, and I want to make sure the court's aware of this, because you said a couple times that Hughes is a Supreme Court case.

[00:11:41] Speaker 03:
It's a Ninth Circuit case.

[00:11:42] Speaker 03:
It's not a Supreme Court case.

[00:11:43] Speaker 02:
Hughes?

[00:11:44] Speaker 03:
Yeah, I think.

[00:11:45] Speaker 02:
Oh, you're right.

[00:11:45] Speaker 02:
You're right.

[00:11:46] Speaker 02:
I'm sorry.

[00:11:47] Speaker 02:
I got it mixed up with, it relied on Hudson that was the Supreme Court case.

[00:11:51] Speaker 03:
Hudson is a Supreme Court case, but Hudson isn't totally establishing this.

[00:11:54] Speaker 03:
It's just providing the factors.

[00:11:56] Speaker 03:
Yeah, no, I agree.

[00:11:57] Speaker 03:
You know, but the Whitley case, you know, the Whitley Supreme Court says you just can't look at this in the after the fact thing.

[00:12:04] Speaker 03:
You've got to look at this and say, hey, you know, are they doing this for the purpose of maliciously doing this or are they doing it to get him under control?

[00:12:11] Speaker 03:
And I think all the facts in this case saying that there's no reason for him to be doing this other than the only reason they're doing this is in order to get him in control and to move him to segregated housing.

[00:12:21] Speaker 00:
Do you take the position that a reasonable corrections officer

[00:12:27] Speaker 00:
In 2022 and this occurred would not know that beating a cuffed or restrained inmate is against the law of constitutional law that beating an inmate that was fully restrained and under control would have been a violation of the law.

[00:12:41] Speaker 03:
Yes, your honor.

[00:12:41] Speaker 00:
All right.

[00:12:42] Speaker 00:
So if that's you agree that

[00:12:45] Speaker 00:
You don't take that position, correct?

[00:12:47] Speaker 03:
No, I do not, Your Honor.

[00:12:48] Speaker 00:
All right.

[00:12:49] Speaker 00:
So tell me why this doesn't... You're just relying on the video that the facts are in your favor.

[00:12:56] Speaker 00:
Is that fair to say?

[00:12:57] Speaker 03:
Well, no.

[00:12:58] Speaker 03:
I mean, I'm going along with cases, for example, the First Circuit and Skinner said.

[00:13:01] Speaker 03:
They rejected.

[00:13:03] Speaker 03:
I mean, I think Skinner is on all points with this case, where the First Amendment, where you find fellow officers

[00:13:11] Speaker 03:
The court said, because the chaos was the making of the inmate at that particular instance in time, that that is what the difference is.

[00:13:28] Speaker 03:
He's making this chaos of his own making.

[00:13:30] Speaker 03:
If he would just voluntarily do this, there would have been no things of this.

[00:13:33] Speaker 03:
The officers would have had no reason to go in.

[00:13:35] Speaker 03:
They wouldn't have had any reason.

[00:13:36] Speaker 03:
And even though he claimed he was punched in the face, that would have been enough.

[00:13:40] Speaker 03:
And that's the difference between this case is because the officers here

[00:13:44] Speaker 03:
They're in the in the the the maelstrom of this doing this and you know if I look back on this and I sure the officers said you know if we would have just You know when he put went forward into the cell and just said stayed outside for a little bit and then Gathered him well, then they would have been okay, right?

[00:14:03] Speaker 03:
But the thing is is there you got to look at it in the moment of when these officers are doing this well unfortunately

[00:14:09] Speaker 00:
We can't unwind the facts about what happened.

[00:14:12] Speaker 03:
No, but the Supreme Court says you have to have deference.

[00:14:14] Speaker 03:
That's why you have to give the officers deference in this case.

[00:14:17] Speaker 03:
The Supreme Court at Whitley has said that over and over again.

[00:14:20] Speaker 03:
You have to give the officers deference.

[00:14:22] Speaker 03:
You should not be looking at this after the fact and saying, hey, under calm reflection, there may have been a better way to handle this.

[00:14:29] Speaker 03:
But the officers are not in calm reflection.

[00:14:32] Speaker 03:
You've got to put it in their shoes.

[00:14:33] Speaker 03:
You've got to look at it from their perspective.

[00:14:34] Speaker 03:
The Supreme Court has repeatedly said, as we said in our brief,

[00:14:37] Speaker 03:
But you have to look at it from the officer's perspective.

[00:14:40] Speaker 02:
Do you want to reserve your 26 seconds?

[00:14:41] Speaker 02:
Yeah, I reserve whatever time I have left, Your Honor.

[00:14:43] Speaker 03:
Thank you.

[00:15:03] Speaker 00:
Thank you.

[00:15:03] Speaker 00:
Go ahead.

[00:15:05] Speaker 01:
May it please the court.

[00:15:06] Speaker 01:
Myles Unterreiner for plaintiff and appellee Sean Harvell.

[00:15:11] Speaker 01:
I'd like to focus my argument today on two points.

[00:15:14] Speaker 01:
First, the district court determined that there is a genuine dispute of fact as to whether Harvell was punched after he was restrained in arm and leg restraints.

[00:15:23] Speaker 01:
That determination must be accepted on interlocutory appeal.

[00:15:28] Speaker 01:
Second, once that genuine factual dispute is construed in Harvell's favor, this court's decisions in Hughes and Manley control this case.

[00:15:37] Speaker 02:
OK, so let me push back a little bit on Manley, because Manley didn't decide the constitutional claim.

[00:15:44] Speaker 02:
What are you relying on in Manley?

[00:15:46] Speaker 02:
I mean, Manley just said, hey, there's factual disputes.

[00:15:49] Speaker 02:
We've got to send this back.

[00:15:51] Speaker 02:
Help me understand why Manley clearly establishes this.

[00:15:56] Speaker 01:
Your Honor, the court in Manley concluded that there was a dispute of material fact.

[00:16:01] Speaker 01:
as to whether Manley was, in fact, punched while he was restrained in handcuffs and leg restraints.

[00:16:08] Speaker 01:
That's necessarily a conclusion that that fact matters, that that fact is material.

[00:16:12] Speaker 01:
It's only material if a jury found that fact in Manley's favor.

[00:16:18] Speaker 01:
The case would go Manley's way.

[00:16:20] Speaker 01:
So it's necessarily a holding, I think, that the fact whether Manley was punched, if a jury found for him on that issue, would mean that he would win the case on the merits.

[00:16:29] Speaker 01:
I would also note that what the district court did here is exactly what the district court did in Manley.

[00:16:35] Speaker 01:
It concluded that because there was a dispute of material fact as to whether Harvell was restrained in arm and leg restraints, that the case could not be resolved at summary judgment and had to go to trial.

[00:16:46] Speaker 01:
So this case is on all fours with Manley on that point.

[00:16:49] Speaker 02:
So when did this happen again?

[00:16:50] Speaker 02:
What date did this happen?

[00:16:52] Speaker 01:
June 2nd, 2022, Your Honor.

[00:16:55] Speaker 02:
June 2nd.

[00:16:56] Speaker 02:
Correct.

[00:16:57] Speaker 02:
OK, so it was two months after Hughes.

[00:17:02] Speaker 02:
That's correct.

[00:17:03] Speaker 02:
So Hughes does apply.

[00:17:04] Speaker 02:
It does.

[00:17:04] Speaker 02:
Yeah.

[00:17:06] Speaker 02:
And so the question in Hughes is a little bit more nuanced, because there is this statement that, look, we have to send it back.

[00:17:16] Speaker 02:
But what did it rely on for the clearly established law in Hughes?

[00:17:20] Speaker 02:
Because it cites to Hudson.

[00:17:23] Speaker 02:
And Hudson doesn't really set this up.

[00:17:28] Speaker 02:
Does that mean that it's clearly established or how do we grapple with that?

[00:17:33] Speaker 01:
Yes, Your Honor, it is clearly established.

[00:17:35] Speaker 01:
So Hughes did two things.

[00:17:37] Speaker 01:
First, it concluded that a reasonable jury, once you construed the facts in Hughes's favor, could fine for him on the Eighth Amendment claim.

[00:17:44] Speaker 01:
That's at page 1222 of Hughes.

[00:17:46] Speaker 01:
It then concluded that the law was already clearly established at that time that what happened to Hughes was unconstitutional.

[00:17:54] Speaker 01:
That's at page 1223.

[00:17:55] Speaker 01:
So Hughes reached both prongs of the qualified immunity inquiry and found for Hughes on both points.

[00:18:01] Speaker 01:
It did point to Hudson, but the facts in Hughes are not distinguishable from the facts in this case.

[00:18:07] Speaker 01:
I'd be happy to talk about why that is.

[00:18:10] Speaker 01:
In Hughes, just as in this case, there was an extraction of the plaintiff from the location where he was.

[00:18:19] Speaker 01:
Officers were standing right outside the door of that location.

[00:18:22] Speaker 01:
They then eventually contacted the plaintiff physically.

[00:18:26] Speaker 01:
In Hughes, there was actually a much more chaotic situation.

[00:18:30] Speaker 01:
There was a struggle between Hughes and the officers.

[00:18:32] Speaker 01:
An officer's body cam was knocked off his chest.

[00:18:36] Speaker 01:
And at some point during that chaotic struggle in Hughes, handcuffs were snapped on.

[00:18:40] Speaker 01:
And the court drew a really bright line.

[00:18:42] Speaker 01:
At that moment in time, once the handcuffs are on, it's no longer permissible to continue punching the inmate.

[00:18:48] Speaker 01:
Exactly the same thing is true in this case.

[00:18:50] Speaker 01:
Nothing in Hughes is distinguishable on its facts.

[00:18:53] Speaker 01:
And I actually didn't see anything in my friend on the other side's brief that actually contested that the facts in Hughes are different.

[00:19:02] Speaker 02:
What about this argument that

[00:19:05] Speaker 02:
There were 3 officers involved in this, right?

[00:19:08] Speaker 02:
Maybe not all of them knew.

[00:19:10] Speaker 02:
Clearly, whichever officer put the handcuffs on would have known that he was handcuffed, but the others may not have.

[00:19:17] Speaker 02:
Does that matter here?

[00:19:18] Speaker 02:
First of all, can we figure that out?

[00:19:20] Speaker 02:
Is there testimony in here?

[00:19:21] Speaker 02:
And I guess my 2nd question is, does it matter?

[00:19:23] Speaker 02:
Because wouldn't that just be a material fact that needs to go back down?

[00:19:28] Speaker 01:
That's right, Your Honor.

[00:19:29] Speaker 01:
I would start with the second point.

[00:19:31] Speaker 01:
The sufficiency of the evidence to prove a fact and whether there's a genuine dispute is not reviewable on interlocutory appeal.

[00:19:37] Speaker 01:
So what exactly the facts are in the chaotic situation inside the cell that's not visible on the video?

[00:19:42] Speaker 01:
That's a question of fact for the jury.

[00:19:43] Speaker 02:
But we don't have any evidence elsewhere in the record that would make this undisputed, that one officer said, no, I put the handcuffs on.

[00:19:51] Speaker 02:
I mean, it does seem like Pickens probably did not put the handcuffs on.

[00:19:56] Speaker 01:
I think that's probably correct, Your Honor.

[00:19:57] Speaker 01:
I don't believe there is specific evidence as to that point.

[00:20:00] Speaker 01:
But what is clearly alleged in Harvell's sworn complaint under penalty of perjury that testifies to facts within his personal knowledge at page 2, ER 228, 230, and 232 of the record is that after the leg restraints were on, we know the handcuffs were on from the very moment officers entered the cell.

[00:20:18] Speaker 01:
And what Harvell says in his sworn complaint is that after the leg restraints were on, he was repeatedly punched by officers Rigney and Brown.

[00:20:25] Speaker 01:
That's the material fact in this case, and that material fact is not reviewable on interlocutory appeal.

[00:20:31] Speaker 01:
And, of course, even under the ordinary summary judgment rules, all facts and all reasonable inferences from those facts have to be construed in Harvell's favor.

[00:20:40] Speaker 02:
But what you just said, I guess, I mean, I was sort of viewing it that they would all three fit in the same bucket.

[00:20:46] Speaker 02:
But what you just said is maybe there is a reason.

[00:20:49] Speaker 02:
to treat Pickens in a different bucket if there's no evidence that Pickens actually beat him after the handcuffs would have been on.

[00:21:01] Speaker 01:
The claim against Officer Pickens, Your Honor, is a failure to intervene claim.

[00:21:07] Speaker 01:
We know that Pickens was in the cell helping to restrain Harvell to place a spit mask on his head.

[00:21:13] Speaker 01:
Pickens' own report makes that clear.

[00:21:14] Speaker 01:
That's at ER 153 and 154 of the record.

[00:21:18] Speaker 01:
So Pickens, it's a failure to intervene claim.

[00:21:21] Speaker 01:
The standard for a failure to intervene claim is set out at page 584 of this court's 2021 decision in Tobias versus Ardiaga.

[00:21:30] Speaker 01:
And Tobias says that the right that's violated by the officer who fails to intervene is exactly the same right analytically as the right that is violated by the officer who carried out the use of force.

[00:21:41] Speaker 01:
So what the district court concluded at ER 14

[00:21:45] Speaker 01:
is that whether Pickens had a reasonable opportunity to intervene to stop the punching, that's an issue of fact for the jury.

[00:21:55] Speaker 01:
It's in dispute.

[00:21:55] Speaker 01:
It's a genuine dispute.

[00:21:57] Speaker 01:
That conclusion is likewise not reviewable on interlocutory appeal.

[00:22:01] Speaker 01:
And the questions about whether Pickens saw the punching, whether she could have intervened at that time, those are all factual questions.

[00:22:07] Speaker 01:
They're not reviewable on interlocutory appeal, and they have to be read in Harvell's favor.

[00:22:11] Speaker 00:
So if we decide that there is a genuine issue of fact, and the case goes to trial, then you've got the question of how do you instruct the jury on what is the standard for measuring the officer's conduct?

[00:22:28] Speaker 00:
What is the clearly established law, in other words?

[00:22:31] Speaker 00:
So what is the standard?

[00:22:36] Speaker 00:
Do we need to decide that even now?

[00:22:38] Speaker 01:
It doesn't need to be decided here, Your Honor.

[00:22:41] Speaker 01:
So two points in response.

[00:22:43] Speaker 01:
Hughes and Manley, and I would say in particular Hughes, clearly established the law in this case.

[00:22:48] Speaker 01:
Both cases precede the events of this case, and they're factually on point.

[00:22:53] Speaker 01:
What the actual standard is for an Eighth Amendment claim is very clear.

[00:22:55] Speaker 01:
That's set out in Hoard v. Hartman, I believe it was a 2018 case from this court.

[00:23:00] Speaker 01:
There are three elements.

[00:23:01] Speaker 01:
The first element is an intent to harm the inmate rather than restore order.

[00:23:06] Speaker 01:
The second element is force that is excessive under all of the circumstances.

[00:23:10] Speaker 01:
And the third element is injury to the inmate.

[00:23:12] Speaker 01:
Those are the standard Ninth Circuit jury instructions.

[00:23:15] Speaker 01:
It's actually in footnote 9 of Hoard v. Hartman.

[00:23:18] Speaker 01:
And so the instructions to the jury would be clear.

[00:23:21] Speaker 00:
So that law is clearly established then.

[00:23:24] Speaker 01:
It is it's very clearly established by Hughes and Manley and the jury can decide the factual questions that the district court in this case concluded were in dispute.

[00:23:39] Speaker 01:
I just want to conclude on one point that my friend on the other side raise, which is that supposedly some other

[00:23:45] Speaker 01:
factual allegations that Harvell makes are supposedly contradicted by the video.

[00:23:51] Speaker 01:
I don't believe that's true, as the court can see from a review of the video, but I would also just want to point out that at page 1219 of Hughes, the court observed that several of Hughes's allegations were conclusively disproven by the videotape.

[00:24:06] Speaker 01:
That included whether he yelled that he was coming out of the house, whether he raised his hands in a gesture of surrender, and also how long the duration of the punching was.

[00:24:16] Speaker 01:
So the court concluded that all three of those things, all three of those claims by Hughes were conclusively disproven.

[00:24:21] Speaker 01:
But it also clearly held at page 1219 and footnote 2 that it was required to continue to credit Hughes' core claim that he was punched after the handcuffs were on.

[00:24:32] Speaker 01:
So even if my colleague on the other side were correct, which I don't think he is, that some other aspect of the sworn complaint may have been wrong in some detail, the core claim that Harvell was punched.

[00:24:43] Speaker 01:
Don't just throw out the whole thing.

[00:24:44] Speaker 01:
You don't throw out the whole thing, and you have to credit, in particular, Hughes says at page 1219 in footnote 2, you still have to credit the core allegation that the plaintiff was punched after the restraints were on.

[00:24:56] Speaker 01:
So that argument doesn't work, even if you agreed with my colleague on the other side about the other points he raises.

[00:25:08] Speaker 01:
I have no other points to raise at this point, Your Honor.

[00:25:10] Speaker 01:
So I would submit and ask the court to affirm.

[00:25:13] Speaker 01:
Thank you.

[00:25:18] Speaker 03:
We'll give you a minute we'll round up for you.

[00:25:26] Speaker 03:
Okay, so we got officer Pickens out right we've decided that she's not involved because and therefore she's not.

[00:25:32] Speaker 02:
The second issue was of course the judge's question well so back up I think you're jumping to some conclusions I didn't ask the question but.

[00:25:40] Speaker 02:
The problem with Officer Pickens, it seems to me, is the district court, I thought, explained that the investigation detail report states that Pickens was not merely present, but took part in the use of the force incident.

[00:25:53] Speaker 03:
Your Honor, that's correct.

[00:25:54] Speaker 03:
She was.

[00:25:55] Speaker 03:
They are present.

[00:25:56] Speaker 03:
But under Hughes, the other officers were present, too.

[00:25:58] Speaker 03:
And the courts found that those other officers weren't.

[00:26:01] Speaker 03:
They were also involved in the struggle.

[00:26:02] Speaker 03:
And the court in Hughes said that those officers weren't involved at all.

[00:26:05] Speaker 03:
So under Hughes, even under their very case, Officer Pickens was out.

[00:26:09] Speaker 02:
Well, it seems to me

[00:26:11] Speaker 02:
At the end of the day these rides are fault the three rides are fall together It seems I don't know I just push back on your son because there's no obligation the officer Pickens punched him at all Or did it anything to abuse him at all okay?

[00:26:23] Speaker 03:
And so you have to have personal you have to have you can't say you can't make it well the other officers there the other thing I wanted to raise though is is with respect to the the the what's what are the suited facts we also raised in our brief the issue of

[00:26:37] Speaker 03:
under the rules of administrative law, that the facts are conclusively established that are established by the things unless there's not substantial evidence.

[00:26:47] Speaker 03:
I don't think this court could find that there's not substantial evidence, some evidence, any little bit of evidence, to support the officer's version of the fact.

[00:26:53] Speaker 03:
And so therefore, the things that were decided in the grievance, which said the officers acted reasonably, has been conclusively established.

[00:27:01] Speaker 03:
Secondly, I want to talk about the different story

[00:27:05] Speaker 03:
either the jury instructions or I was going back with this, the jury instruction would be that, hey, you've got to give the officers deference.

[00:27:11] Speaker 03:
That's the jury instruction.

[00:27:12] Speaker 03:
And if you give the officers deference, then there's not a dispute of fact what's happened here.

[00:27:18] Speaker 03:
Because they did these things in split-second times.

[00:27:21] Speaker 03:
They have only 90 seconds in which this happened.

[00:27:24] Speaker 03:
And they're doing this in the struggle of the moment.

[00:27:27] Speaker 03:
You can't say on the path, well, geez, maybe something else should have happened.

[00:27:31] Speaker 03:
That's not what the Supreme Court says.

[00:27:33] Speaker 03:
The Supreme Court says we're required, not juries, not judges, but the officers who are on their boots on the ground are the ones that have to make these difficult decisions about what they're going to do to make sure the inmate is restrained and so nobody gets injured.

[00:27:47] Speaker 02:
Thank you.

[00:27:47] Speaker 02:
We got it.

[00:27:48] Speaker 02:
Thank you.

[00:27:48] Speaker 02:
Thank you to both counsel for your arguments in the case.

[00:27:51] Speaker 02:
The case is now submitted and that concludes our arguments for the day.