[00:00:00] Speaker 00: Bruner versus Cassidy, 23-6216. [00:00:06] Speaker 00: Counsel for Appellant, if you would make your appearance and proceed, please. [00:00:12] Speaker 03: Good morning, Your Honors. [00:00:13] Speaker 03: I am Stacey Huss-Velkner, and I represent Appellants Kelly Cassidy, Brandon Lee, and Robin Riddner, who are all sergeants with the Oklahoma City Police Department. [00:00:23] Speaker 03: This case arises out of the March 27, 2020 arrest of Dewan McCoy, [00:00:29] Speaker 03: by Sergeant Cassidy's Lee and Riddner at the Biltmore Hotel in Oklahoma City. [00:00:34] Speaker 03: McCoy died several days later on April 2nd, 2020 at the hospital. [00:00:40] Speaker 03: The issues presented in this appeal are narrow, focusing on the defendant officer's conduct during an approximately 90-second period after McCoy was handcuffed. [00:00:50] Speaker 04: Council, aren't they even more narrow than that, though, because of our jurisdictional constraints in this type of appeal? [00:00:57] Speaker 04: We can only review abstract questions of law, right? [00:01:01] Speaker 04: And the problem that I had or the confusion that I had that I was hoping you could help me with is that in your briefing, you seem to assume that we can review the facts de novo. [00:01:11] Speaker 04: We can just make our own factual assessment. [00:01:14] Speaker 04: And that is the unusual posture. [00:01:18] Speaker 04: You would have to explain why that is so. [00:01:20] Speaker 04: Why do we do not accept the district court's factual finding? [00:01:24] Speaker 04: And I don't see that you have done that. [00:01:27] Speaker 04: hoping to get your argument on that today. [00:01:30] Speaker 03: Well, the court does have the authority to look at the video for blatantly contradictory, if the video blatantly contradicts what the plaintiff is saying or what the court has said. [00:01:46] Speaker 03: So I think you are entitled to look at the video in that period of time that is an issue. [00:01:52] Speaker 04: So you're relying on the [00:01:55] Speaker 04: the blatantly contradicted by the record exception to the normal course where we would accept the district court's factual findings. [00:02:01] Speaker 04: Is that correct? [00:02:02] Speaker 03: I am relying on that with respect to the fact that you can consider the facts, but I think the crux of my argument is that the law is not clearly established in this case. [00:02:15] Speaker 03: I think you can look at that one and a half minute period, but I think even if you accept the district court's fact findings on that, [00:02:22] Speaker 03: when we get to the issue of clearly established, the law is simply not clearly established. [00:02:28] Speaker 03: Yes. [00:02:28] Speaker 03: Go ahead. [00:02:29] Speaker 04: Thank you, Chief. [00:02:29] Speaker 04: And let me follow up when you say that if we accept the district court's fact finding on that, what precisely are you referring to? [00:02:36] Speaker 04: What fact are you referring to? [00:02:38] Speaker 04: Because the one that seems to be not marshaled thoroughly in the briefing, as far as I can tell, [00:02:46] Speaker 04: is that the district court said there was a period of roughly a minute and a half during which Mr. McCoy had stopped resisting. [00:02:54] Speaker 04: So are you asking us to not accept that factual finding, or are you saying even if we accept that factual finding, the law is not clearly established? [00:03:04] Speaker 03: I think even if you accept that factual finding, the law is not clearly established. [00:03:10] Speaker 01: But that then is your argument, because as has been pointed out, [00:03:16] Speaker 01: On an interlocutory appeal, we have to accept the facts as presented. [00:03:21] Speaker 03: Yes. [00:03:21] Speaker 03: The heart of my argument goes to whether the law with respect to the type of force that was used here, specifically prone restraint, was clearly established. [00:03:32] Speaker 01: So this case really turns on the reading of McCoy v. Myers and Weigel v. Broad and whether those two cases are sufficient. [00:03:40] Speaker 03: And I would include Cruz versus Laramie in that. [00:03:45] Speaker 04: Why is Weigel not disposable? [00:03:47] Speaker 03: Weigel is not dispositive because the court in Weigel said, I mean, you had three judges, and they couldn't agree on specifically what Weigel said. [00:04:03] Speaker 03: One of the three judges expressed the view that pressure on a suspect's back alone can violate clearly established law. [00:04:12] Speaker 03: One believed pressure combined with leg restraints was prohibited. [00:04:16] Speaker 03: And then the third, in dissent, believed that the clearly established law prohibited only the most extreme form of positional restraint, which was hog-tying, as it's defined in Cruz v. City of Laramie. [00:04:29] Speaker 04: Well, wasn't the disagreement there only about when the person became subdued? [00:04:35] Speaker 04: And here, if we're accepting the district court's factual finding, that's not an issue for us. [00:04:40] Speaker 04: And so the consensus holding in Weigel would be dispositive. [00:04:45] Speaker 03: No, I do not believe that is the holding of libel because the concurrence said, I only agree that there was excessive force here because his feet were bound, or at the point his feet were bound. [00:04:58] Speaker 03: Because that's when he was subdued. [00:05:05] Speaker 03: I don't think that is what the concurring opinion said. [00:05:08] Speaker 03: That judge specifically focused on [00:05:13] Speaker 03: not only that he was subdued and handcuffed, but also that his feet had been bound. [00:05:21] Speaker 01: Wasn't the equivalent of his feet being bound here, bound not by chains, but bound by one of the officers holding them, pushing them up like he did? [00:05:33] Speaker 03: I certainly think that that is a position the court could rule in cases going forward. [00:05:40] Speaker 03: But I do not think that when you look at Wiggle and Cruz, you can come to that conclusion. [00:05:46] Speaker 03: I mean, Wiggle specifically relies on Cruz. [00:05:51] Speaker 03: Cruz specifically talks about hog time, which is not just folding someone's feet up. [00:05:57] Speaker 03: It's binding the hands and the feet with less than 12 inches of separation. [00:06:02] Speaker 03: So I don't think that a reasonable officer, even if they're familiar with Wiggle and with Cruz, would understand that [00:06:10] Speaker 03: pushing Mr. McCoy's feet up is the equivalent of putting him in leg restraints or a hobble, which was not done here. [00:06:21] Speaker 00: If the through line is lack of ability to act, and I'm talking about the prisoner or the defendant, lack of ability to do anything but comply, [00:06:34] Speaker 00: And then the application of force, why is it necessary that they say, oh, well, you know, we're not hog tying them. [00:06:41] Speaker 00: So I guess we're just scot free. [00:06:43] Speaker 00: I mean, why is that? [00:06:45] Speaker 00: Why does that matter? [00:06:47] Speaker 00: I mean, yes, this is a particularized inquiry. [00:06:51] Speaker 00: But the particularized inquiry turns on certain variables. [00:06:55] Speaker 00: I mean, and the variable is lack of ability to respond, you know, and they're compliant. [00:07:02] Speaker 00: The 90 seconds that the district court talked about. [00:07:05] Speaker 00: And during that 90 seconds, the application of what turned out to be lethal force that involved an analogous form of pressure on the legs. [00:07:18] Speaker 00: So I'll get out of my monologue and ask this. [00:07:23] Speaker 00: Aren't we in the analogy business? [00:07:26] Speaker 00: I mean, isn't that what this is about in conducting clearly established law? [00:07:31] Speaker 00: It doesn't have to be hog time, does it? [00:07:34] Speaker 03: It does not. [00:07:35] Speaker 03: Well, I think that if you were reviewing this on a blank slate without Wiggle and without Cruz, [00:07:47] Speaker 03: you could make that certainly that would be a valid argument. [00:07:51] Speaker 03: But that's not the case here, where you have the one controlling case or the primary controlling case, in my opinion, Weigel, and you have three judges who looked at the same set of facts and found three different standards as to what constituted excessive force in the context of pressure and prone restraint. [00:08:13] Speaker 03: I think in that context, it would be very difficult for an officer to understand that folding someone's legs out is the equivalent of hog time. [00:08:23] Speaker 04: What is the rule in legal? [00:08:25] Speaker 04: In your view, what did Judge Seymour and Judge Hartz agree on, I guess? [00:08:32] Speaker 03: Judge Seymour and Judge Hartz agreed that if a person is restrained and their legs are bound, then you cannot continue to put pressure on their back. [00:08:44] Speaker 01: They didn't say how bound. [00:08:48] Speaker 01: They didn't say if bound by rope or by rope of a certain dimension or by handcuffs or chains. [00:08:54] Speaker 01: They just said bound, right? [00:08:55] Speaker 03: Well, as I understand it, prior to the time the suspect was bound with, I believe it was, rope, there was a bystander putting pressure on his legs. [00:09:10] Speaker 03: And Judge Hartz did not consider that to be enough. [00:09:13] Speaker 03: I also think we need to look back at McCoy versus Myers during this 92nd period, because the issue is not at what point was the suspect restrained. [00:09:28] Speaker 03: The point is, at what point did the officer reasonably believe that the suspect was restrained, and that perception [00:09:44] Speaker 03: It's not always instantaneous. [00:09:47] Speaker 00: Well, are you now deviating from the district court's findings? [00:09:52] Speaker 00: I mean, the district court made its finding. [00:09:54] Speaker 00: 90 seconds, he was restrained. [00:09:56] Speaker 00: He was complying. [00:09:58] Speaker 00: He was not doing anything. [00:10:00] Speaker 00: And he was compliant. [00:10:02] Speaker 00: So that's what we're stuck with, right? [00:10:06] Speaker 03: In my opinion, under McCoy, the fact that his prior conduct [00:10:13] Speaker 03: has to be factored into the decision of whether the officers understood that he was restrained. [00:10:19] Speaker 03: Even if the district court said he is no longer struggling at this point, the officers have just been in a very intense fight. [00:10:28] Speaker 03: They're all still breathing heavily. [00:10:30] Speaker 00: Let's hit the pause button. [00:10:31] Speaker 00: I mean, to the extent that you go down this road, [00:10:34] Speaker 00: and you start deviating from what the district court found, you're putting yourself right out of jurisdiction. [00:10:40] Speaker 00: So you're stuck with what the district court said happened, right? [00:10:47] Speaker 03: Yes, but the district court said that an officer looking at McCoy would not necessarily understand that this force was not allowed. [00:10:58] Speaker 03: The court said it was at least less than obvious [00:11:04] Speaker 03: McCoy clearly establishes the conduct at issue in the instance. [00:11:08] Speaker 00: We're not talking about McCoy. [00:11:09] Speaker 00: We're talking about what the district court found here. [00:11:12] Speaker 00: And my point is you are stuck with that. [00:11:15] Speaker 00: And again, if you walk away from what the district court found here, you're walking right out the door of jurisdiction. [00:11:20] Speaker 00: So I take it that is not what you're doing. [00:11:24] Speaker 03: That is not what I'm doing. [00:11:25] Speaker 03: I'm saying with the facts the district court found, [00:11:28] Speaker 03: The district court still found that an officer would not understand the law was clearly established, that their actions were unconstitutional. [00:11:37] Speaker 03: The reason there is because you have to look at when the officer could reasonably perceive that the danger was over. [00:11:43] Speaker 03: I mean, there may be a period when, looking at it with 2020's hindsight, the danger is over, but the officers on the scene did not perceive that. [00:11:56] Speaker 03: a case where the officers have been in a fight like this and the plaintiff has, Mr. McCoy, the decedent has been kicking even after he was handcuffed, the fact that he has stopped kicking doesn't mean that they can immediately assume or that they simply perceive that, okay, now there's no more threat. [00:12:17] Speaker 04: I mean, maybe this was an argument that was available to you under McCoy, but did you develop that on appeal? [00:12:23] Speaker 03: Yes, I believe I did. [00:12:25] Speaker 03: I argued the facts of McCoy. [00:12:28] Speaker 03: I argued that the court talked about the perception of the officer and looking back at Fancher versus Barrios. [00:12:36] Speaker 03: So I believe that was well-developed in our brief. [00:12:42] Speaker 04: But it still seems to rely on your [00:12:47] Speaker 04: your conclusion or your view of the facts as being different from what the district court found seems to rely on Mr. McCoy here being not subdued. [00:12:58] Speaker 03: I don't think that's the case because after the district court made a factual finding and then it said looking at the clearly established law of McCoy and of Weigel in both cases we don't think this is obvious that an officer would understand this conduct is prohibited and in my opinion [00:13:18] Speaker 03: If it's less than obvious, that's by definition not clearly established. [00:13:26] Speaker 03: I would like to reserve the rest of my time for rebuttal if you don't have any further questions. [00:13:53] Speaker 02: Good morning. [00:13:54] Speaker 02: May it please the court? [00:13:54] Speaker 02: Brittany Jaggers-Johnson on behalf of the appellee. [00:13:59] Speaker 02: And I would like to start with some of the scope questions and then the facts in the matter. [00:14:07] Speaker 02: So the scope right now is limited to the specific facts that the court below found and based its decision off of. [00:14:15] Speaker 02: Those facts are in the order and I will go over those briefly so that we all know exactly what facts we are talking about. [00:14:22] Speaker 01: And they are that... I bet you have to be talking about clearly established facts. [00:14:30] Speaker 01: Didn't the district court express some ambiguity or hesitation about the outcome of this? [00:14:36] Speaker 01: And wouldn't that hesitation argue against clearly established? [00:14:41] Speaker 02: Not in this case, Your Honor. [00:14:43] Speaker 02: I don't believe so, because the case law also supports that the clearly established point of law [00:14:49] Speaker 02: regarding the actions taken. [00:14:51] Speaker 01: Well, but the law has to be applied to facts. [00:14:54] Speaker 01: I may be mistaken on that. [00:14:56] Speaker 01: I'll have to go back and reread what the district court said. [00:14:59] Speaker 01: But I have a recollection that he expressed some hesitation or some ambiguity about this whole thing. [00:15:08] Speaker 02: Sure. [00:15:09] Speaker 02: What the court was saying, in my opinion, is that there is video evidence that contradicts some of what the appellants have pled. [00:15:19] Speaker 02: but that such video evidence could certainly support or facts that could certainly support a jury's finding. [00:15:25] Speaker 01: If there's some evidence pro and some against, how can you say it's clearly established? [00:15:31] Speaker 02: Well, the facts that. [00:15:33] Speaker 01: Yeah, but the facts have to be applied to the law. [00:15:35] Speaker 01: And if the facts are ambiguous, you can't tell whether the law is ambiguous or not until you know what the facts are. [00:15:41] Speaker 02: Well, Your Honor, I believe that the case law has actual facts in them [00:15:47] Speaker 02: that are analogous enough to these facts that would put everyone on notice. [00:15:51] Speaker 01: Would they be analogous to either version of the facts that the history court thought were ambiguous? [00:15:56] Speaker 02: I do believe so. [00:15:59] Speaker 02: Because the Water v. Coleman case is analogous to where someone is putting pressure on or restricting someone's movement of their legs, which is what Officer Lee did in this matter. [00:16:12] Speaker 02: And then the Booker v. Gomez case that was also cited by the court [00:16:17] Speaker 02: is where putting pressure on someone's back is also another factor that's excessive force all on its own. [00:16:24] Speaker 02: So those two cases support what the court's findings were, even though they are separate cases where they are saying each of those actions, it looks like exclusively, could be excessive force if they were [00:16:36] Speaker 02: more force than what was needed at the time of the application of the force. [00:16:40] Speaker 04: Would you agree that in this case, given how it's been argued, which is so important to us given our constraints jurisdictionally, that we would have to accept that the district court found that there was a period of roughly 90 seconds where your client was subdued? [00:16:57] Speaker 04: Is that a fair reading of the findings in this case? [00:17:01] Speaker 02: That is certainly what the court found, at least. [00:17:03] Speaker 02: And are you saying that that's ambiguous? [00:17:06] Speaker 02: I'm not saying that anything is ambiguous. [00:17:08] Speaker 04: OK, understood. [00:17:09] Speaker 04: So if we use that factual finding to then go on the hunt for clearly established law, what is the case or cases that you contend are the clearly established law cases here? [00:17:24] Speaker 02: OK, so Weigel, that is in throughout the briefing, I believe, on both sides, is the establishing case. [00:17:33] Speaker 02: And that was in 2008. [00:17:34] Speaker 02: It cited to Cruz, which was a 2001 case. [00:17:37] Speaker 02: In the Wiggle case, the court had told everyone at that point that it was clearly established, that certain actions were clearly established, excuse me. [00:17:48] Speaker 02: And then it was reiterated in Wiggle. [00:17:51] Speaker 02: And then in both Waters, Bicombe, in which the court did cite, and also Booker versus Goethness, which the court did cite, those both pointed [00:18:03] Speaker 02: to the Weagle case, and in the conclusions there, that there was clearly established law dating back from 2001 and 2008. [00:18:13] Speaker 04: What do you say to your friend's position that the Weagle doesn't actually support you because of this conflict, perhaps, between the majority opinion and the concurrence, that the ultimate consensus holding there doesn't support you? [00:18:30] Speaker 02: Well, of course, then I would disagree with counsel in that reading of the cases, because the majority opinion did give us the language that's needed. [00:18:44] Speaker 02: And here, in the Weigel case, the court says that if the [00:18:54] Speaker 02: Facts plaintiff proffered are true, and the jury draws inference is most supportive of those plaintiff's position. [00:18:59] Speaker 02: The law was clearly established that applying pressure to Mr. Weigel's upper back once he was handcuffed and his legs restrained was constitutionally unreasonable due to the significant risk of positional asphyxiation. [00:19:13] Speaker 02: So I think that answers the case for that matter. [00:19:17] Speaker 02: And then the court then goes on to talk about cases from other circuits. [00:19:21] Speaker 02: that have found it clearly established that putting substantial or significant pressure on a suspect's back while the suspect is in a face-down prone position after being subdued and or incapacitated constitutes excessive force. [00:19:35] Speaker 00: And where did Judge Hartz get off the train? [00:19:38] Speaker 00: What was his different perspective? [00:19:42] Speaker 00: And essentially, what do we do with that? [00:19:45] Speaker 00: In other words, what can be extrapolated from his position as to why he concurred as opposed to dissenting? [00:19:53] Speaker 02: Well, from my reading and my recollection, it's somewhat based upon the binding of the leg issue. [00:20:00] Speaker 02: And the current matter that's before us, that's true, that there was no binding of the leg specifically with a rope or tie or anything of that manner. [00:20:10] Speaker 02: the legs were held in place by one of the officers with hands and body weight and legs eventually, et cetera, for a period of at least about 13 minutes after the handcuffing of the suspect at that time. [00:20:31] Speaker 02: Does that answer? [00:20:32] Speaker 02: Yes, it does. [00:20:33] Speaker 02: OK, thank you. [00:20:34] Speaker 02: And so what I do want to focus on then as the fact that the court did find [00:20:40] Speaker 02: that there was that 92nd period where Mr. McCoy was not kicking or doing anything to resist the officers. [00:20:47] Speaker 02: I do want to point out that nowhere in the record does anyone say that Mr. McCoy was being aggressive or acting in a dangerous manner toward the officers. [00:20:57] Speaker 02: So that would go to the fact that after he actually was handcuffed and was subdued, the officers then had to be objectively reasonable in assessing whether or not McCoy was going to become [00:21:09] Speaker 02: a big immediate threat to them or any member of the public at that time. [00:21:14] Speaker 04: Council, would you agree that the legal sort of off-ramp jurisdictionally for us is if the video blatantly contradicts, right? [00:21:22] Speaker 04: That that's one way for us to sort of do our own fact-finding. [00:21:26] Speaker 04: Sure. [00:21:27] Speaker 04: The video isn't super clear. [00:21:30] Speaker 04: Would you agree? [00:21:31] Speaker 04: I mean, there's some in that 90-second interval that the district court was focused on. [00:21:38] Speaker 04: you know, how can we really say that your client was completely subdued at the time and just the videos jerking? [00:21:48] Speaker 04: Can you speak to that? [00:21:49] Speaker 02: Sure, Your Honor. [00:21:50] Speaker 02: Thank you for the question. [00:21:50] Speaker 02: So looking at the body camera footage, there was a period actually of a little over 30 seconds where Mr. McCoy had been placed in a recovery site position and [00:22:07] Speaker 02: There was no movement, no kicking or anything. [00:22:09] Speaker 02: None of the officers had to say anything about kicking. [00:22:12] Speaker 02: But at the end of that approximate 30-second period, you can see on the video where there is something about kicking. [00:22:21] Speaker 02: Officer Lee said something about kicking. [00:22:22] Speaker 02: And then you can see on the video, Mr. McCoy then is pushed back over into a prone position. [00:22:29] Speaker 02: And at that point, if the officers felt any kicking, [00:22:36] Speaker 02: At that time, excuse me, it's been discussed in case law that a kick or two from a suspect who's been apprehended but is in a prone position and handcuffed and other restraints applied could be simply trying to breathe. [00:22:53] Speaker 02: At no point did any officer state that Mr. McCoy was kicking at them. [00:22:58] Speaker 02: Certainly there was a struggle, as we've heard about already from counsel. [00:23:02] Speaker 02: And no officer claimed to be struck at any point. [00:23:04] Speaker 02: There was no scratch. [00:23:05] Speaker 04: But aren't you looking at the officer's reasonable perception? [00:23:07] Speaker 02: Yes. [00:23:07] Speaker 02: So it's them being objectively reasonable at that time. [00:23:10] Speaker 02: So the fact that he was not doing anything on the video or according to officer's testimony during that over 30-second period, I think it may have been about 35 seconds. [00:23:19] Speaker 02: And it's not until they pushed him back over into the prone position that you heard anything about kicking and there was a commotion. [00:23:28] Speaker 02: That should have let the officers, any reasonable officer, know. [00:23:31] Speaker 02: that as long as you leave him in the recovery position where he can try to get air after the struggle that has ensued, perhaps he's fine and not a threat to anyone just like he had never presented an actual threat to anyone violently or dangerously prior to. [00:23:48] Speaker 00: If the video is fuzzy in some places, and by that gives rise to a certain ambiguity that one could accept your client's position or accept the officer's position as to what happened in this sort of haze. [00:24:07] Speaker 00: I mean, you can see something, but you have different views on what happened. [00:24:12] Speaker 00: Whose view do we take as a matter of law? [00:24:16] Speaker 02: Certainly, Judge. [00:24:17] Speaker 02: So in that case, not an actual case, but the facts are to be read and inferences made in favor of the nonmoving party, which in this case is the appellee. [00:24:32] Speaker 02: And so we agree with what the court found as far as qualified immunity in regard to the officers, because the court did find that a reasonable juror could watch the video and determine [00:24:44] Speaker 02: the facts were as the plaintiff has presented. [00:24:48] Speaker 02: And any reasonable juror perhaps could find a different way, but that is why the court said that that would be a jury question and that the finding was as it is. [00:24:58] Speaker 01: What is the relevance, if any, about whether the decedent McCoy was or wasn't on drugs or alcohol at the time? [00:25:11] Speaker 01: He was certainly acting irrationally. [00:25:14] Speaker 01: Is there any evidence that the officers, I'm not talking about something discovered later in autopsy or something, but from the officer's perspective, was there any evidence that they knew or suspected he was either impaired for drinking or drugs or mental restraints? [00:25:37] Speaker 02: Yes, there was, Judge, if I may. [00:25:40] Speaker 01: Yeah. [00:25:41] Speaker 01: Well, I see that cutting both ways, but I am interested in your answer. [00:25:44] Speaker 01: If you think he is impaired, let's say, by drugs, you might say, well, that means we've got to be more careful with him. [00:25:50] Speaker 01: But it might also mean that his actions are less predictable, and you have to be more cautious about it. [00:25:55] Speaker 01: So I don't quite know where it cuts, but I think it's at least something relevant. [00:25:59] Speaker 01: So I'm just asking factually, what was the evidence of impairment? [00:26:03] Speaker 02: Well, according to the officers at the scene, they commented about the strength of Mr. McCoy, that he seemed quite strong for a person of his size. [00:26:14] Speaker 02: did see in the record that when the hotel called and made the report, someone reported that Mr. McCoy was high. [00:26:22] Speaker 02: And so the officers knew that upon showing up that perhaps the person was under the influence. [00:26:27] Speaker 02: And it's in the record that the hotel at which this occurrence happened was known to be a bit problematic property. [00:26:37] Speaker 01: I don't understand how that relates to whether he was high or not. [00:26:43] Speaker 02: It's in the record. [00:26:44] Speaker 02: And so I think the officers indicated at some points during testimony that perhaps they would think that perhaps something would be going on drug-wise because of the location to where they were called. [00:26:56] Speaker 01: Was it estimated that this was known to be a drug center of transactions of drugs? [00:27:03] Speaker 02: That is the testimony. [00:27:05] Speaker 02: And so, but yes, to the point though that then there is the court's discussion in other cases about excited delirium and other mental states. [00:27:16] Speaker 02: And in this case, I do believe that the officers could have been a reasonable officer, could have been alerted to the fact that Mr. McCoy at first was speaking reasonably with everyone, but after the struggle ensued, he did begin yelling and calling for family members. [00:27:32] Speaker 02: exhibited perhaps stronger than usual behavior, excuse me, strength, and perhaps then should have been dealt with more carefully, especially post-handcuffing. [00:27:45] Speaker 02: Because that is, that position is what creates that position of asphyxiation. [00:27:51] Speaker 02: Not necessarily the struggle, but it's putting the person on their stomach in that prone position with the handcuffing, with officer Reitner's [00:28:00] Speaker 02: knee in Mr. McCoy's back and with Officer Lee pushing the decedent's feet up to his buttocks, which is a fact that was found by the lower court. [00:28:10] Speaker 00: He was handcuffed behind his back? [00:28:11] Speaker 02: He was. [00:28:14] Speaker 02: OK. [00:28:14] Speaker 02: And so all of those factors go into the analysis that the court has made in previous decisions. [00:28:21] Speaker 02: And for those reasons, I do ask that the court go ahead and affirm the lower court's decision denying the officer's qualified immunity in this matter. [00:28:29] Speaker 02: and sending the matter to a jury, because as it's also in the record, Officer Lee said that there was no more force needed after Mr. McCoy was handcuffed. [00:28:42] Speaker 02: Thank you. [00:28:43] Speaker 00: Thank you, counsel. [00:28:54] Speaker 03: I would like to respond to your question, Judge Holmes. [00:28:59] Speaker 03: Judge Hart's off-ramp in Weigel. [00:29:03] Speaker 03: And in my opinion, the difference in that case is the point where it went from restraint of the feet in the sense of someone just putting weight on them and actually binding them. [00:29:15] Speaker 03: And I think the critical sentence is, I do not think the defendants violated Mr. Weigel's constitutional rights before his legs were bound. [00:29:24] Speaker 03: In light of Mr. Weigel's strength and previous behavior, [00:29:28] Speaker 03: It was not, in my view, unreasonable of the officers to keep him in a prone position with weight on his upper back, so long as the only restraint on his legs was the weight of a bystander sitting on them. [00:29:40] Speaker 03: So I think Judge Hartz is drawing a very clear distinction between putting some weight on your feet or folding your feet up and actually binding your feet. [00:29:51] Speaker 04: But in service of what? [00:29:52] Speaker 04: Why is he interested in this? [00:29:54] Speaker 04: He's only interested in this. [00:29:56] Speaker 04: because we're trying to isolate when the individual is subdued. [00:30:01] Speaker 04: Why is that an incorrect reading of the case? [00:30:03] Speaker 04: Maybe it is. [00:30:04] Speaker 04: Can you tell me why? [00:30:07] Speaker 03: I think that that may be an issue in this case throughout. [00:30:10] Speaker 03: We have Weigel, we have Cruz, we have Booker, and none of them provide a clear answer to the officers as to what they were supposed to do in this case or why what they did violated clearly established law. [00:30:25] Speaker 03: I mean, you have three judges in Weigel, which is our controlling case, with three different positions. [00:30:30] Speaker 03: So I believe that is, by definition, not clearly established. [00:30:36] Speaker 00: Let me follow up on Judge Rosman's point. [00:30:43] Speaker 00: As I understood her, the question was, if Judge Harts was trying to determine [00:30:50] Speaker 00: when the defendant, when the decedent, or I don't recall, yeah, he died, the decedent, when he was subdued, okay? [00:31:00] Speaker 00: That's the question. [00:31:02] Speaker 00: And if that is what separates Judge Hart from the other opinions in the case, then that is not an issue here, right? [00:31:13] Speaker 00: Because we have to accept the district court's view [00:31:17] Speaker 00: that for 90 seconds he was subdued. [00:31:22] Speaker 00: In other words, the thing that could have been the basis for an off-ramp and point of distinction wouldn't be a distinction here. [00:31:32] Speaker 03: Well, I disagree with that because I think you have to go back to McCoy. [00:31:36] Speaker 03: And McCoy recognizes that there may be a period of time between the point at which the suspect is subdued [00:31:45] Speaker 03: and the point at which a reasonable officer would perceive that he is effectively subdued and there is no further threat. [00:31:53] Speaker 03: And I think given Mr. McCoy's behavior, I know it's confusing with the case and the person being the same name, with the decedent in this case's behavior up to the point that we're in this 92nd period, it is both possible for the decedent to be subdued and for the officers to not yet recognize that. [00:32:16] Speaker 03: So for that reason, I would ask that you reverse the court on the scenario window of qualified immunity. [00:32:23] Speaker 03: Thank you. [00:32:24] Speaker 00: Thank you, counsel. [00:32:26] Speaker 00: Case is submitted.