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Our first case for oral argument today is Harold versus Christianson.

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It is docket 23-4075.

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Mr. Sykes, we are prepared near your argument when you're ready.

[00:00:17] Speaker 02:
Well, that was a pleasure, Your Honor, to participate in that once again after 50 years.

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Please, the Court.

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And my name is Robert Sykes.

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I'm a Salt Lake City, Utah attorney.

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I have with me at council table an associate, Peter Sorensen.

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And I'm honored to represent Joey Harold.

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Sometimes in the paperwork he's referred to as Ben or Benny.

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I'm also honored to be here with Peter Sturba, a longtime friend and colleague.

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We're always on the opposite side of cases, but he's a good man and a good lawyer.

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There are three issues.

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that I think are important to focus on today.

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The first is, is a right clearly established where the force used against a nonviolent misdemeanor is so aggressive and so disproportionate that any reasonable officer would have fair warning that his actions would violate a person's right to be free

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from excessive force.

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Let me ask you a question that I oftentimes ask in these qualified immunity cases.

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What should the officers have done?

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Oh, very simple.

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Joey had his hands, and I watched this again this morning in the hotel room, he had his hands behind his back for about 14 or 15 seconds.

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Said, OK, I'm going to be arrested, something like that.

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Put the handcuffs on him and take him away.

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Well, he's a large man with large wrists that may present some difficulty getting the handcuffs on.

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Are you saying that they deliberately delayed in putting the handcuffs on?

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What they did, Your Honor, is they deliberately did an improper, unconstitutional, forceful takedown in violation of many of your precedents, including Morris v. Mill.

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You don't do a forceful takedown on a nonviolent misdemeanor.

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What if you were breaking free?

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He no longer was going to keep his hands behind his back.

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Because I've watched the videos too, and I'm not sure what I see there.

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Yeah.

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Well, you know what?

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That should go to a jury, by the way, what you recounted.

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We don't see it that way.

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Judge Newford didn't see it that way.

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He said, I think it's page 18 and 20, there was no justification, I'm paraphrasing now, to do a forceful take down on this man.

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We agree with that.

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Council, that's not the point at which we judge or decide.

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whether the force to use was excessive.

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The point that we judge that at is the point at which they actually had to use the force.

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Here, that wasn't at the point of the takedown.

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It was after the takedown.

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They're tumbling around.

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He's screaming.

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He's cursing.

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He's resisting.

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And ultimately, according to the judge, the district court, he says,

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Harold yells, Mr. Harold yells, don't effing touch me.

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And as he did so, as he did so, he pulled out of the grasp of Officer Christensen and Officer Gardner and was moving his arms towards Sergeant Christensen's upper body.

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That's the point at which we decide was the force excessive.

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Because according to the judge, it was immediately, and I'm quoting, immediately after

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He pulled free that officer Christensen used it for his weapon, and he used it.

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So we need to focus.

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I'd like you to focus on that point and explain to me what I thought I understood your argument to be, which was that this was an obvious constitutional violation.

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Now, there are two violations, sir.

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The forceful takedown.

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where he's got his hands behind his back.

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They didn't use force at that point.

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They used force.

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We have to evaluate it from the point at which they used force.

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And the second use of force is the gun.

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Now, that may be part of the evaluation, but it's not the only factor.

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Let me take you back for a minute to answer that question to Paria versus Baca.

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Another mentally ill individual, young man,

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Mother calls for assistance.

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He comes back, sees the police, and takes off on his bicycle.

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They corral him, take him down forcefully.

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He's thrashing around.

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And this court held, look, that doesn't justify tasing him 10 times and beating him and killing him.

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And I would suggest the same thing to you here.

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At that point, I believe in the case you're speaking of, at that point that the officers tased him, he had been subdued.

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And that's the real issue in each of these cases is, was the individual subdued when the officers took this action?

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And here, you've got specific findings of fact from the district court.

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saying not only was he not subdued, he'd broken away from two of the three officers, shouting, cursing, and was reaching for one officer's chest.

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And that's the facts that you have to deal with.

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We can't reconsider those facts on appeal.

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And Judge Neuffer, who heard the whole thing, said that did not justify a forceful takedown.

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And it didn't justify being shot in the eye

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with a JPX pepper gun.

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By the way, you probably read this in the briefing, but that pepper gun emits a pepper ball at 405 miles an hour muzzle velocity.

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It says on the gun, don't shoot anybody closer than five feet.

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I brought a tape measure, but I can't find it.

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But it's a Craftsman.

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It's red.

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It's about an inch and a quarter.

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And as that pepper ball goes forward, it expands.

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But at that range, 18 to 36 inches, it's about an inch and a quarter.

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What do you mean by ball?

[00:07:01] Speaker 04:
It's a pepper ball.

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My understanding is it's a spray.

[00:07:05] Speaker 02:
No, it's a pepper ball.

[00:07:07] Speaker 04:
Is that in this document?

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I don't remember, Judge, which one you have there.

[00:07:12] Speaker 04:
It's the JPX pepper gun professional.

[00:07:15] Speaker 02:
Yeah, it's a pepper ball.

[00:07:17] Speaker 04:
Several pages.

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It shows the emission spreading.

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But my understanding is it's a spray.

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It's a ball.

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And that's in the record.

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And it expands when it goes out.

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A ball expands?

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That's what it says.

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The pepper ball, yeah.

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But either way, that's a very, and it had to be going

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close to 400 miles an hour when it hit his eye.

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See, this is a nonviolent misdemeanor.

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He's mentally ill.

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And you shoot him in the eye.

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Let's back up.

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Please.

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He's on the ground.

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He's up against the officers.

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He's up against the wall.

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He's told, give us your other arm.

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They're trying to handcuff him.

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He's not giving that arm up.

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Says he can't.

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One of the others says he can't.

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I'm going to get to that.

[00:08:02] Speaker 04:
Let me finish.

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And at that point,

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What should the officers have done, my original question?

[00:08:11] Speaker 04:
There were several warnings given.

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Five or six times he was told, submit or else, and eventually the force was deployed.

[00:08:23] Speaker 02:
Well, what the officers should have done, and I think what our expert would say is, hold him until he calms down.

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But you don't shoot him.

[00:08:31] Speaker 04:
But sometimes you read cases where the person is held and is distraught and overwrought and dies.

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Yeah.

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And so is it just a no-win position for the?

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Well, you know, if that happens, it happens.

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And I've had cases like that.

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Excuse me.

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I've had cases like that.

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But what you don't do is use a lethal weapon.

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And that thing you had up there, that's a brochure, says that this is lethal.

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Deadly.

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Inside of five feet.

[00:09:03] Speaker 04:
Okay, so if it had been five feet, would you still have a case or not?

[00:09:07] Speaker 02:
Well, if it had been five feet or more, probably not.

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Okay.

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You know, but 18 to 24 inches, I mean, I've measured my own hand.

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If I sit down like this and I'm holding it up, I can't get much more than about that far, see?

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And so, what I'm saying is, you don't use a lethal weapon.

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on a nonviolent misdemeanor.

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Don't.

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Are the Taser cases applicable here?

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Well, that's excessive force.

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I think it's applicable.

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It's excessive force.

[00:09:39] Speaker 04:
It can be.

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The district court said you only gave him one case, unclearly established, the McWilliams case.

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Would we be within our realm to be piling new cases on?

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Well, I never got to my second and third issues, but here they are.

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I'll answer your question.

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Number one, is this a new issue?

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And number two, if it is, should you consider it anyway?

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Well, let me address the new issue.

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I read this very carefully.

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Our response to the motion for summary judgment, pages 37 through 52, 15 pages, goes in at length about what the law is

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with respect to forceful takedowns and the use of force.

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And I said in there, I didn't write that read, but we said, let me find my notes here.

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We talked about the grand factors.

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We cite cases, many cases, supporting the grand factors alone.

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We cite Casey, Cortez, McWilliams,

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and Morris versus Noe.

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And if you go to page 47 on that brief, we had a quote from Morris versus Noe about, there will never be a previously published opinion involving exactly the same circumstances.

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The more obviously egregious the conduct and light up of any constitutional principles, the less specificity is required.

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We cited that.

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We cited Morris again on page 49.

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I think we adequately dealt with that.

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Now, looking back in hindsight, do I wish I had put, or whoever wrote this had put all those other cases in?

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Sure.

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But we were responding to their brief.

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And I think we responded adequately and let the court know that we didn't require

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a specific case on this situation because, number one, forceful takedown law is clearly established in the 10th Circuit, going back almost 20 years.

[00:12:03] Speaker 00:
Well, counsel, can I start there?

[00:12:05] Speaker 00:
Yes.

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Are you taking the position that this was an obvious violation?

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Is that your argument?

[00:12:12] Speaker 00:
Yeah.

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And that you raised that.

[00:12:14] Speaker 02:
Yes.

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And that all we needed was to show that the grand factors,

[00:12:21] Speaker 00:
OK, so are you making the argument then that there is a case that showed that this was clearly established that it couldn't be done?

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Are you abandoning that argument?

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Which way do you get points?

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Clearly established with a case, or two, or three, or whatever, or obvious?

[00:12:43] Speaker 02:
The grand factor is clearly established, and we argue that in our brief.

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But there's no specific case that we found

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Or someone shot in the eye with a pepper gun.

[00:12:53] Speaker 00:
OK, so you're not making that argument that it was clearly established.

[00:12:56] Speaker 00:
No.

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You're saying the violation was obvious.

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Right.

[00:12:59] Speaker 00:
OK, thank you.

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And I would like to reserve a few minutes to respond to my good friend, Peter Sturbus.

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We've got 2.16 left.

[00:13:05] Speaker 02:
Is that OK?

[00:13:06] Speaker 02:
Yes.

[00:13:07] Speaker 02:
OK.

[00:13:07] Speaker 02:
Unless you have a question, I can answer right now.

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We'll stop your clock.

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May it please the court, good morning and good morning to Mr. Sykes and your colleague.

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This case arises from the fact that the lower court determined that the use of the pepper gun was such that there's no clear case or cases from this circuit or other circuits for that matter that would inform this officer

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that the discharge under the facts and circumstances that he did was constitutionally problematic.

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So what if he had shot from two inches?

[00:14:05] Speaker 03:
I don't think that that necessarily would change the circumstances.

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Because if you look at this, the reason... So let me make sure I understand.

[00:14:12] Speaker 04:
You're saying that there would still be qualified immunity even then.

[00:14:15] Speaker 03:
Well, first let's go back.

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There's no law.

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There's no case law.

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That's the first thing.

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But secondly, if you look at the facts and circumstances, which you have to do the totality of the circumstances precisely, you'll see that the reason why he did this, he testified in his deposition to this effect, is that after the whole circumstance of him throwing a can, him not being compliant, him struggling, him also taking a shelving and hitting the officer, attempting to hit the officers with it, and series of events like that,

[00:14:50] Speaker 03:
This officer made the determination that he had to deploy the gun to stop what was going on.

[00:14:56] Speaker 04:
I'm trying to get a line, though.

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And if you don't want to give me one, just say so.

[00:14:59] Speaker 04:
But if it were two inches, would that be qualified immunity or not?

[00:15:05] Speaker 03:
Well, I don't think that's the correct way of looking.

[00:15:07] Speaker 03:
Did the officer act reasonably in discharging the weapon or the gun, even if it was two inches, five feet, or 10 feet?

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The point is, what was he trying to accomplish?

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Going back to, I think we cited the case of the woman who was stopped in her automobile, and she wouldn't get out of the car.

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And she said she wanted to talk to her mother.

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She said she'd get out if they promised they wouldn't hurt her.

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Pardon me?

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She said she'd get out if they promised they wouldn't hurt her.

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Well, that was one thing she said.

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But ultimately, she would not comply, would not get out of the car.

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So the officer sprayed OC spray into her face, and that subdued her.

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That's exactly what the case said.

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The use of this was reasonable because essentially it seduced a belligerent, hostile person and allowed the officers to address the situation.

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Do we care about the officer's motive here?

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In other words, this is going on.

[00:16:02] Speaker 04:
Of the three officers, I think the first one is as calm and sedate a person as you could ever have a report to your house and was fantastic.

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And the one who was not, who was agitated, who arrived a little bit later, is our defendant.

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He is the one who is involved in, I'm not going to say instigating, but he raises the temperature.

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And as the plaintiff is on the ground and he is being told by Officer Christensen, roll over so they can, the other deputy says he can't.

[00:16:39] Speaker 04:
At which point, and it's within moments, the shot, the eye, and also within moments is the plaintiff calls the officer an SOB in not as polite terms.

[00:16:53] Speaker 04:
What if the officer were angry and he decided, I'm sick of you.

[00:16:58] Speaker 04:
I've spent enough time and it's been like one minute on the ground.

[00:17:02] Speaker 04:
This will show you bang from three feet.

[00:17:06] Speaker 04:
Would that be qualified immunity?

[00:17:08] Speaker 04:
That was his motivation.

[00:17:10] Speaker 03:
Judge, and I apologize.

[00:17:12] Speaker 03:
When you say would that be qualified immunity, once again, you have to look at the complete circumstances under which the officer is functioning.

[00:17:20] Speaker 04:
I'm trying to give you a big circumstance.

[00:17:22] Speaker 03:
Pardon me?

[00:17:23] Speaker 04:
I'm trying to give you a big circumstance to include in your complete circumstances.

[00:17:28] Speaker 03:
And that is to say the officer was angry?

[00:17:29] Speaker 03:
Yeah.

[00:17:30] Speaker 03:
Well, I think perhaps that would cause a question as to what the officer was precisely doing.

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and whether he was reasonably in doing it.

[00:17:40] Speaker 03:
But the fact of the matter is, essentially, his anger or his motivation is somewhat irrelevant to the qualified immunity analysis.

[00:17:48] Speaker 03:
The issue is, what he did, not what he was feeling, but what he did, was it reasonable under the Fourth Amendment?

[00:17:56] Speaker 03:
That's the standard that we're looking at.

[00:17:58] Speaker 04:
Is that in dispute on appeal, the excessive force part of the district court's ruling that we're only talking about clearly a step?

[00:18:06] Speaker 03:
Well, we're talking about the deployment of the pepper gun, which is a use of force.

[00:18:11] Speaker 03:
And we're talking about whether or not that was excessive under the Fourth Amendment.

[00:18:16] Speaker 03:
There's a couple other facts that I think are important.

[00:18:19] Speaker 03:
First of all, it's clear the trial court agreed with this, and the facts show it, that Officer Christensen, right when he deployed the pepper gun, was when the grasp of the officers, Mr. Harrell had gotten out of the grasp of two officers,

[00:18:36] Speaker 03:
Gardner and Christensen, and was going towards Christensen.

[00:18:42] Speaker 03:
And it looked like he was going to either assault him in some way or hit him in some way.

[00:18:47] Speaker 03:
That's a finding.

[00:18:48] Speaker 03:
I think it's finding 58 in the findings of the trial court's decision.

[00:18:54] Speaker 03:
So that was the moment that he deployed.

[00:18:57] Speaker 03:
And under the circumstances of this case, he had a right to defend himself.

[00:19:01] Speaker 03:
He had a right to worry about the safety of other individuals.

[00:19:04] Speaker 03:
had a right to eliminate, if you will, or stop what he perceived was going to be assaultive behavior on behalf of Mr. Christensen.

[00:19:12] Speaker 03:
And remember, he had some basis to believe that because of the way Christensen, I'm sorry, Harold had acted, throwing the can, swearing, not complying, struggling.

[00:19:22] Speaker 03:
And remember, this is important.

[00:19:23] Speaker 03:
You can see it in Truman's video.

[00:19:26] Speaker 03:
That's the best one.

[00:19:27] Speaker 03:
He takes the shelf, this is Harold, takes the shelf when he's on the ground

[00:19:32] Speaker 03:
and is going like this, attempting to whack these officers in the head.

[00:19:36] Speaker 03:
Christensen saw that.

[00:19:38] Speaker 03:
He knew that.

[00:19:39] Speaker 03:
And he was concerned about that.

[00:19:41] Speaker 03:
And somehow, this situation had to end.

[00:19:45] Speaker 03:
And he ended it by the deployment of the pepper gun.

[00:19:48] Speaker 03:
He tried to move as far back as he could, but he couldn't disengage because that creates some other problems.

[00:19:55] Speaker 03:
But that's all he was trying to do is to end it.

[00:19:58] Speaker 03:
And he did.

[00:19:58] Speaker 03:
When basically he deployed it.

[00:20:01] Speaker 00:
I appreciate what you're saying, but I'm wondering if you can address the question, are we considering whether there was a violation here?

[00:20:11] Speaker 00:
Are we not just looking at the qualified immunity question?

[00:20:15] Speaker 03:
Well, the point is there's no cases on this.

[00:20:19] Speaker 03:
And the court said if you can't show any case law that would tell this officer what he was doing was vile to the Constitution, he's entitled to qualified immunity because the law is not clearly established.

[00:20:31] Speaker 03:
And quite frankly, if there are no cases, and otherwise what he has done is certainly within the realm of reasonableness, he's entitled to qualified immunity.

[00:20:40] Speaker 00:
Well, what is your position on the obviousness?

[00:20:44] Speaker 00:
Was it raised below?

[00:20:46] Speaker 00:
Is that something we can consider?

[00:20:49] Speaker 03:
No, I appreciate the question.

[00:20:50] Speaker 03:
We raised the issue of that that issue, and I think we cited the most recent case, which its name avoids me right now.

[00:21:00] Speaker 03:
But anyway, Osborne, in that case, basically is sort of like this case.

[00:21:05] Speaker 03:
Below, the obvious case law was not cited.

[00:21:10] Speaker 03:
Get up on appeal, and then that surfaces.

[00:21:13] Speaker 03:
And the court said, sorry.

[00:21:14] Speaker 03:
Basically, you have a forfeiture.

[00:21:16] Speaker 03:
You haven't preserved the issue below.

[00:21:18] Speaker 03:
You can't raise it now.

[00:21:20] Speaker 03:
And also, there was no attempt to argue plain error.

[00:21:23] Speaker 03:
So you have a double problem.

[00:21:24] Speaker 03:
And the court said,

[00:21:26] Speaker 03:
that that issue has been waived.

[00:21:27] Speaker 03:
And that's actually generally the law in this circuit.

[00:21:30] Speaker 03:
There are circumstances, I understand, where in the court's discretion, where otherwise it hasn't been raised or hasn't been preserved below, and there's no argument for plain error, the court still can consider, if it wishes to, a case on the merits.

[00:21:49] Speaker 03:
And essentially, what we have done is we've tried to argue, assuming the court

[00:21:53] Speaker 03:
would like to go in that direction and determines that even though there's a forfeiture, it's still going to decide the merits of the case.

[00:22:00] Speaker 03:
We thought we would provide what otherwise is argument that what Officer Christensen did.

[00:22:06] Speaker 03:
And we're not really arguing the first prong of clearly established.

[00:22:11] Speaker 03:
But you have to look at this in the context of factually what happened and saying that the law, if anything,

[00:22:18] Speaker 03:
doesn't tell him that he's on notice and should know that what he was doing was violating the Constitution.

[00:22:24] Speaker 03:
And I really go back to that case with the car, because it's somewhat instructive.

[00:22:30] Speaker 03:
It's the same element, shall we say.

[00:22:33] Speaker 03:
It's OC spray.

[00:22:35] Speaker 03:
And he sprayed it in the woman's face.

[00:22:37] Speaker 03:
And all he was trying to do was get control.

[00:22:39] Speaker 03:
That's all he was trying to do.

[00:22:40] Speaker 03:
And the court says that.

[00:22:42] Speaker 03:
Well, that's all we were having here.

[00:22:44] Speaker 03:
All the officer was trying to... And maybe he was misguided

[00:22:48] Speaker 03:
And the outcome became a situation where Mr. Harrell unfortunately lost his eye.

[00:22:53] Speaker 03:
That was not his intent.

[00:22:54] Speaker 03:
He said he was trying to shoot from the side of the head, and he was trying just to end this altercation, which was actually becoming worse, not better.

[00:23:03] Speaker 03:
And especially when Mr. Harrell is coming after him and has now gotten out of the grasp of two officers and is raising up, going towards him.

[00:23:12] Speaker 04:
Are you talking about when he's on the ground or when he is going to be handcuffed?

[00:23:17] Speaker 03:
No, this is actually way after that.

[00:23:21] Speaker 03:
I'm talking about, and there's a finding 58, which the trial court... What's the answer?

[00:23:25] Speaker 03:
Pardon me?

[00:23:26] Speaker 03:
What are you talking about?

[00:23:28] Speaker 03:
I'm talking about that the officer had certainly a reasonable justification and belief... You said breaking the grasp.

[00:23:36] Speaker 03:
What are you talking about?

[00:23:38] Speaker 03:
Okay.

[00:23:39] Speaker 03:
When he's on the ground after the takedown, he's struggling, and the officers are trying to control him.

[00:23:47] Speaker 03:
And one of the officers was Officer Gardner.

[00:23:50] Speaker 03:
And he had a grip, I think, on one of his hands.

[00:23:53] Speaker 03:
And that grip or grab, he was able to get out of.

[00:23:57] Speaker 03:
At the same time, Mr. Harold got out of the grip and the grab of Sergeant Christensen.

[00:24:03] Speaker 03:
And that's when he deployed.

[00:24:04] Speaker 03:
He didn't deploy before then.

[00:24:06] Speaker 04:
Well, we've all seen the video, and I guess it's conclusive.

[00:24:09] Speaker 04:
Let me ask you this.

[00:24:10] Speaker 04:
You're acting like this is the first time that anybody could have foreseen that this would happen.

[00:24:15] Speaker 04:
But in fact, Officer Christensen was trained with this device.

[00:24:19] Speaker 04:
Is that right?

[00:24:20] Speaker 04:
Yes, he was.

[00:24:21] Speaker 04:
He knew.

[00:24:22] Speaker 04:
Don't fire at five feet, less than five feet.

[00:24:25] Speaker 03:
Well, I don't know whether he knew precisely what would happen, but he was trained that way.

[00:24:30] Speaker 03:
That's true.

[00:24:31] Speaker 03:
And there was a policy in St.

[00:24:33] Speaker 03:
George

[00:24:33] Speaker 03:
that require the five-foot rule.

[00:24:35] Speaker 03:
That's true.

[00:24:36] Speaker 04:
However... How does that enter into the obvious question?

[00:24:40] Speaker 04:
Because we have a lot of cases where there's been training, and we've considered that as part of the second prong of qualified immunity.

[00:24:50] Speaker 03:
OK.

[00:24:51] Speaker 03:
Let me address this that way, and maybe I'm being helpful, and maybe I'm not.

[00:24:56] Speaker 03:
Actually, if you look at Hope versus Pelzer, what

[00:25:01] Speaker 03:
Justice Stevens used was not obvious.

[00:25:05] Speaker 03:
He used novel.

[00:25:06] Speaker 03:
And the reason why I think that's important is because as we've gotten to just obvious, I don't know what obvious means.

[00:25:13] Speaker 03:
It certainly doesn't give warning, fair warning to an officer, especially where there's no case law, that somehow what he's doing is unconstitutional.

[00:25:23] Speaker 03:
If it's novel, that is to say completely unique, different, and separate, I guess that maybe is something you could understand.

[00:25:31] Speaker 03:
But obvious, I mean, you could say any fact pattern in some sense, especially if it's anew, is obvious.

[00:25:37] Speaker 04:
Can you speak to the training that I ask you about?

[00:25:40] Speaker 04:
How does that affect the analysis?

[00:25:42] Speaker 04:
There was training, and he was in violation of the training.

[00:25:45] Speaker 03:
Well, yeah.

[00:25:46] Speaker 03:
But in this case, he thought that he had no other choice.

[00:25:51] Speaker 03:
And he didn't have a taser because he couldn't carry both.

[00:25:56] Speaker 03:
So he thought this was his only logical way

[00:25:59] Speaker 03:
to end this altercation and this situation that he's confronting.

[00:26:04] Speaker 03:
And he was concerned, if he didn't, that there are going to be greater complications for the officers involved, and especially when he's now out of the grasp of two officers, and he's attempting to lunge forward to Officer Christensen.

[00:26:18] Speaker 03:
Those are the facts, and that's what the court found.

[00:26:19] Speaker 04:
We have film, and we can see that.

[00:26:21] Speaker 04:
As far as whether he was out of the grasp after he was on the ground and he was lunging at officers, we have film that will show that.

[00:26:29] Speaker 01:
Isn't that the district court's finding here?

[00:26:32] Speaker 01:
The district court made that finding here.

[00:26:34] Speaker 03:
Yes, it's finding 58.

[00:26:36] Speaker 03:
And he didn't use the word lunge.

[00:26:39] Speaker 03:
He said he got out of the grasp of the two officers and was going towards Officer Christensen when he deployed.

[00:26:47] Speaker 03:
That's what the court found.

[00:26:49] Speaker 03:
And I think that's certainly a good way to show reasonableness on the part of

[00:26:54] Speaker 03:
of Christensen, because remember, he didn't deploy immediately.

[00:26:58] Speaker 03:
He kept saying, I'm going to shoot you in the face.

[00:27:01] Speaker 03:
And he had the gun.

[00:27:03] Speaker 03:
He could see that.

[00:27:04] Speaker 03:
Harold saw that.

[00:27:06] Speaker 03:
He still didn't respond.

[00:27:07] Speaker 03:
And it was only when he thought, that is, Christensen thought he was going to be assaulted that he deployed.

[00:27:13] Speaker 03:
And that helped to end this whole situation.

[00:27:16] Speaker 03:
The other thing that's critical, and there's a case, it's the Talby case.

[00:27:23] Speaker 03:
Christensen testified that he was, when they're struggling on the ground, he could feel that Harold was yanking for his, what he thought was his service revolver, which really was the pepper gun.

[00:27:35] Speaker 03:
And he could feel the yanking at his gun.

[00:27:38] Speaker 03:
Well, that's obviously, in Talby, the lady just brushes up against the back of the officer and he spins around and pushes her to the ground.

[00:27:49] Speaker 03:
I think everybody can concede it's a concern an officer has if somebody's going for their weapon.

[00:27:55] Speaker 03:
And that's what Christensen testified to.

[00:27:58] Speaker 01:
We don't have a finding from the district court about that, though.

[00:28:01] Speaker 01:
What do we do with that?

[00:28:03] Speaker 01:
I think that's an interesting fact.

[00:28:06] Speaker 01:
We didn't have any particular findings from the district court.

[00:28:09] Speaker 01:
Can we assume that that's what the fear was or what the threat was, that when he's lunging towards or

[00:28:17] Speaker 01:
moving towards the chest of Officer Christensen that he might have been able to obtain a weapon.

[00:28:22] Speaker 03:
Right.

[00:28:23] Speaker 03:
That's based purely on the testimony of Christensen and what you can see in the video.

[00:28:27] Speaker 01:
Just one, because we don't have a finding of facts.

[00:28:28] Speaker 03:
No, we don't have a finding.

[00:28:29] Speaker 01:
We're not in the business of finding facts.

[00:28:31] Speaker 03:
And I just, if I could, the other thing we don't have a finding on is the shelving and the use of the shelving by Mr. Harrell to hit the officers.

[00:28:40] Speaker 03:
I would say about the findings, they're not

[00:28:42] Speaker 03:
complete in some sense.

[00:28:45] Speaker 03:
The videos show most of the facts for sure, but I can't say that the findings are some total of everything that happened.

[00:28:52] Speaker 03:
They're not.

[00:28:53] Speaker 03:
And so that's why it's not there.

[00:28:55] Speaker 01:
I personally can't see on the videos, and maybe somebody else can, but I can't see what the district court apparently saw, which was the final part where the officer

[00:29:09] Speaker 01:
uses the spray.

[00:29:10] Speaker 01:
You can't see that on the video, I don't believe, but the district court did make that specific finding.

[00:29:17] Speaker 01:
That's why I'm asking about it.

[00:29:19] Speaker 03:
Yes, he did.

[00:29:19] Speaker 01:
I mean, we could all look at the video, but in the end, we can't do much about the district court's findings again, unless they're clearly

[00:29:30] Speaker 01:
Clearly not consistent with the record.

[00:29:34] Speaker 03:
I apologize.

[00:29:34] Speaker 03:
The one thing you can see clearly is not in the findings, which is my point.

[00:29:38] Speaker 03:
You can see the shelving going back and forth in an attempt to hit the officers.

[00:29:42] Speaker 03:
And that's in Truman's video where you see it best.

[00:29:45] Speaker 03:
So if there are any other questions or no other questions, I'll submit.

[00:29:50] Speaker 03:
Thank you.

[00:29:51] Speaker 03:
Thank you.

[00:29:54] Speaker 02:
I'd like to read you two sentence paragraph, page 20 of the court's decision

[00:30:00] Speaker 02:
In taking Mr. Harrell to the ground and deploying the pepper gun, Sergeant Christensen used a higher level of force than any apparent crime required.

[00:30:10] Speaker 02:
And on page 20, conclusion, based upon the totality of the circumstances, Sergeant Christensen's deployment of the pepper gun at such a close proximity to Mr. Harrell's face was an excessive use of force under the Fourth Amendment.

[00:30:27] Speaker 02:
Now, by the way, Judge Phillips, my

[00:30:30] Speaker 02:
co-counsel informed me that the gun is a spray, not a bolus.

[00:30:35] Speaker 02:
And I apologize for that.

[00:30:39] Speaker 02:
So what my good friend Mr. Sturba said in his brief and set up here is a whole bunch of new facts which justify the decision.

[00:30:48] Speaker 02:
But those facts aren't before you.

[00:30:51] Speaker 02:
They weren't appealed.

[00:30:53] Speaker 01:
This should go to a jury.

[00:30:54] Speaker 01:
Facts are part of the record.

[00:30:56] Speaker 01:
The facts are part of the record.

[00:30:57] Speaker 01:
What we work with at this level is the district court's factual findings.

[00:31:04] Speaker 01:
And that's why I've been asking you to focus on that.

[00:31:06] Speaker 02:
And so what he said, the totality of the circumstances, there's no basis for this.

[00:31:12] Speaker 02:
Now let me just say that I don't have a lot of time here, but I'd like you to compare the Hodge v. Barger case, which is non-reported, to the Perea case.

[00:31:23] Speaker 02:
Hodge v. Barger, in a very short opinion, set out

[00:31:28] Speaker 02:
what the law is.

[00:31:29] Speaker 02:
And it said these facts of getting her out of the car, putting a pain hold on her, weren't enough to justify not having qualified immunity.

[00:31:43] Speaker 02:
But the judge that wrote that decision set out about four or five other cases.

[00:31:49] Speaker 02:
It was Judge Morris.

[00:31:51] Speaker 02:
Four or five other cases and explained how different that was.

[00:31:55] Speaker 02:
This case is like those other cases.

[00:31:58] Speaker 02:
Grossly excessive force.

[00:32:01] Speaker 02:
And I would like to just ask this court, in the interest of justice and the importance of this case, to grant our appeal, because justice requires it.

[00:32:12] Speaker 02:
I thank you for your attention very much.

[00:32:16] Speaker 04:
Thank you, counsel, for your helpful arguments.

[00:32:18] Speaker 04:
The cases submitted and counsel are excused.