[00:00:03] Speaker 03:
All right.

[00:00:05] Speaker 03:
Our next case is 23-1393, Schwartz v. Gintempo.

[00:00:09] Speaker 03:
Mr. Ziprin.

[00:00:11] Speaker 02:
Thank you, Your Honor.

[00:00:12] Speaker 02:
Good morning.

[00:00:13] Speaker 02:
My name is Eric Ziprin, and I'm here on behalf of appellate Deputy Jason Gintempo of the Denver Sheriff's Department.

[00:00:19] Speaker 02:
May it please the court.

[00:00:21] Speaker 02:
I would like to reserve three minutes for rebuttal if I have the opportunity to do so.

[00:00:26] Speaker 02:
I am here to respectfully request that the court reverse the district court's denial of qualified immunity related to the appellee's claim.

[00:00:32] Speaker 02:
of excessive force.

[00:00:34] Speaker 02:
Specifically, we are here to request a reversal of the district court's finding that the law was clearly established such that it was beyond debate that Deputy Gentempo violated Seraphine Finn's rights under the 14th Amendment as a pretrial detainee by using force after Mr. Finn ignored a command to stop spitting and then spitting in the face of Deputy Gentempo.

[00:00:59] Speaker 02:
Deputy Gentempo is here

[00:01:01] Speaker 02:
today to simply ask the court apply the same qualified immunity process that it would apply to a Denver Police Department officer who is accused of using excessive force under the Eighth Amendment, and that there is no carve-out exception related to qualified immunity for claims brought against pretrial detainees.

[00:01:20] Speaker 02:
The essence of the argument made by Appellee and the cases that they rely on, as well as the district court relied upon, is that Mr. Finn did not pose a threat to Deputy Jintempo

[00:01:30] Speaker 02:
given that he was restrained in leg irons and in handcuffs.

[00:01:34] Speaker 02:
But those restraints did nothing and could do nothing to prevent the chosen method of assault by Mr. Finn.

[00:01:42] Speaker 02:
Spitting in someone's face is just not one of the most degrading and dehumanizing things you can do to a person.

[00:01:48] Speaker 02:
It's an assault under Colorado law.

[00:01:50] Speaker 02:
Which could be charged.

[00:01:52] Speaker 02:
And it was in this case, Your Honor.

[00:01:54] Speaker 00:
All right.

[00:01:55] Speaker 00:
And isn't that the remedy?

[00:01:57] Speaker 02:
That's one of the remedies, Your Honor, but certainly the officers need to protect himself, to protect the security of the situation, to protect his fellow deputies is certainly another consideration.

[00:02:09] Speaker 02:
Now you're arguing facts.

[00:02:11] Speaker 00:
And what the district court, there are a number of paragraphs, a jury could conclude.

[00:02:17] Speaker 00:
For one thing, a jury could conclude that the deputies punching this man and flipping his wheelchair onto the pavement was unrelated to purported interest.

[00:02:26] Speaker 00:
As you say, restraining that activity.

[00:02:29] Speaker 00:
Similarly, a jury could conclude that the use of force was excessive and relate.

[00:02:34] Speaker 00:
That's Johnson versus Jones, isn't it?

[00:02:36] Speaker 00:
You're reviewing sufficiency of evidence.

[00:02:38] Speaker 02:
And we're not here to argue sufficiency of evidence.

[00:02:41] Speaker 02:
In fact, we are not challenging prong one of the qualified immunity analysis.

[00:02:44] Speaker 02:
We're not here to argue that the judge Sweeney got the facts wrong.

[00:02:48] Speaker 02:
We're not here to argue that she, her analysis was flawed.

[00:02:53] Speaker 02:
in terms of finding a constitutional violation.

[00:02:56] Speaker 00:
We are here for the limited purpose of, if we accept the fact that this is a constitutional violation, that the law was simply not clearly established to put the officer... If a jury could find that it was unrelated, as the district court says, and that it was just an act of rage, then

[00:03:16] Speaker 00:
You're saying there wouldn't be clearly established law that just because you're angry about something, you can't strike someone in a wheelchair who's handcuffed.

[00:03:24] Speaker 02:
Well, what I'm saying is the jury is going to have the opportunity to consider the first prong of the qualified immunity analysis, that being whether or not there's a constitutional violation.

[00:03:32] Speaker 02:
And if a jury does conclude that this was an act of rage, that this was an act of punishment, then yes, they will conclude that there's a liability for deputation tempo.

[00:03:42] Speaker 02:
But they won't be asked the second part of that equation.

[00:03:46] Speaker 02:
which is the clearly established equation, which is what Judge Sweeney was tasked to do, which she didn't do in a proper manner.

[00:03:52] Speaker 02:
The fault of Judge Sweeney was her failure to provide any case that was sufficiently similar to the facts presented to Deputy Gentempo.

[00:04:00] Speaker 00:
So that's your position, that if the jury found that, that it was an act of rage and that it was outrageous or egregious or something else, still no liability because the law is not clearly established that you can't strike someone in a fit of rage.

[00:04:14] Speaker 00:
who's handcuffed in a wheelchair.

[00:04:16] Speaker 00:
No cases involving those facts, so therefore no liability.

[00:04:20] Speaker 02:
My only discrepancy with that, Your Honor, is that the jury, and I've tried a number of qualified immunity cases, and I've never seen a case where a jury's been allowed the opportunity to decide qualified immunity.

[00:04:31] Speaker 02:
I'm agreeing with you on that.

[00:04:33] Speaker 02:
OK.

[00:04:33] Speaker 02:
So what I'm saying is the failure here was that even if Judge Sweeney determined that there was a constitutional violation, that's only half the analysis.

[00:04:43] Speaker 02:
The second part of that analysis that she has to go through, as mandated by this court, as mandated repeatedly by the United States Supreme Court, especially in the last few years, in Mullinex versus Luna, White versus Pauley, city of Tlaquepa versus Bond, is that she was mandated to find a case that was sufficiently similar that would have put my client on notice that what he was doing violated the 14th Amendment.

[00:05:07] Speaker 02:
Absent an obvious case of egregiousness.

[00:05:12] Speaker 03:
a free strike rule in a spitting case?

[00:05:19] Speaker 02:
Well, I don't know if I would characterize it as that, Your Honor.

[00:05:22] Speaker 02:
But what I would characterize it is the parties have conceded there was no 10 circuit case that deals with the facts that were sufficiently similar to this one.

[00:05:31] Speaker 02:
The district court wasn't able to come up with a case that was sufficiently similar either.

[00:05:35] Speaker 02:
What is being argued by the appellee

[00:05:39] Speaker 02:
which not even the district court adopted, is that it was per se clearly established because Bell versus Woolfish in 1979 mandated that punitive force could not be used against pretrial detainees.

[00:05:52] Speaker 02:
But accepting that premise would be a violation of the Supreme Court's repeated mandate to not decide these cases at too high a level of generality.

[00:06:00] Speaker 02:
That would be akin to deciding a Fourth Amendment objective reasonableness case on those grounds alone, that Graham versus Connor

[00:06:07] Speaker 02:
says you can't use force that's objectively unreasonable.

[00:06:10] Speaker 02:
If a district court would define that as part of their analysis, then that's the end of the analysis.

[00:06:17] Speaker 03:
Why isn't the right frame for this case that the prisoner was subdued and not a threat?

[00:06:25] Speaker 03:
And it is degrading and potentially dangerous to get spit on.

[00:06:32] Speaker 03:
But I think both his arms and feet were restrained, and he was in a wheelchair.

[00:06:38] Speaker 03:
So he really wasn't a physical threat other than what he did.

[00:06:45] Speaker 03:
And certainly, he was substantially restrained.

[00:06:52] Speaker 03:
So it seems to me that the most obvious thing to do would be to step back

[00:07:02] Speaker 03:
and put the towel over his head, which they did, rather than use potentially punitive force.

[00:07:12] Speaker 03:
Let me restate that.

[00:07:13] Speaker 03:
Isn't this just the infliction of force on a subdued inmate?

[00:07:20] Speaker 03:
I mean, I think that's more or less their framing.

[00:07:23] Speaker 03:
What's wrong with that?

[00:07:24] Speaker 02:
I'll get to that in one moment, but prefatory comment quickly.

[00:07:28] Speaker 02:
This was not just simply a spit.

[00:07:30] Speaker 02:
This was a spit from a gentleman who had hepatitis C. This was a weaponized assault.

[00:07:33] Speaker 04:
Well, he didn't know that at the time.

[00:07:35] Speaker 02:
Correct, Your Honor.

[00:07:35] Speaker 02:
He did not know that at the time.

[00:07:37] Speaker 04:
So we can't consider that as part of his frame of reference when he struck the man in the wheelchair.

[00:07:43] Speaker 02:
I agree with that, Your Honor, but I think that in that population that he's dealing with, I think they've received training

[00:07:50] Speaker 02:
of the risk of spitting on someone's face in this particular setting with this particular population is an enhanced risk.

[00:07:56] Speaker 02:
Getting to your point, Judge Timkovich.

[00:07:59] Speaker 02:
Yes, the point that this court has relied on and that the appellee has relied on is the cases that they presented for clearly established law talk about individuals who are in restraints.

[00:08:10] Speaker 02:
And the key part is, and effectively subdued.

[00:08:14] Speaker 02:
They cite to Casey versus City of Federal Heights.

[00:08:16] Speaker 02:
They cite to Weigel versus Broad.

[00:08:18] Speaker 02:
McCoy versus Myers, which is an egregious beating of an individual in a motel room who is unconscious and is being struck by officers.

[00:08:29] Speaker 02:
But the distinction with this case, Your Honor, is that yes, there were leg restraints.

[00:08:33] Speaker 02:
Yes, there were handcuffs.

[00:08:34] Speaker 02:
But those restraints do not in any way restrain or subdue

[00:08:38] Speaker 02:
Mr. Finn's ability to spit and assault the officers.

[00:08:41] Speaker 00:
That's why you step behind him instead of tackling him over the other deputies resistance, trying to hold the wheelchair up and facing him.

[00:08:48] Speaker 00:
He could have spit in him 10 more times the way that the deputy handled it instead of just stepping behind the wheelchair.

[00:08:54] Speaker 02:
And I'm not here to argue that perhaps there's other things that could have been done and perhaps better things that could have been done.

[00:08:59] Speaker 02:
But the point is whether what was done was objectively reasonable.

[00:09:03] Speaker 02:
But even more to the point,

[00:09:05] Speaker 02:
if what was done was clearly established to be a violation of Mr. Finn's 14th Amendment rights.

[00:09:10] Speaker 02:
And we simply don't have any case that's been presented to this court suggesting from the Supreme Court or anything sufficiently factually similar from the 10th Circuit, and certainly not the weight of authority.

[00:09:20] Speaker 02:
They've provided you with cases from the 6th, 7th, 8th, and 11th Circuits.

[00:09:25] Speaker 02:
So we certainly don't have the weight of authority here.

[00:09:28] Speaker 02:
And relying simply on Bell versus Wolfish or this broad proposition in the law

[00:09:33] Speaker 02:
is simply not what the Supreme Court mandates when we're talking about these types of cases.

[00:09:37] Speaker 02:
Now, absent an obvious and egregious violation.

[00:09:40] Speaker 00:
So why isn't, why can't the court say that's exactly what I see when I watch that video?

[00:09:45] Speaker 02:
And the district court did not do that.

[00:09:48] Speaker 02:
This court certainly can do that upon reviewing the record.

[00:09:52] Speaker 02:
It can make rulings that are not, base its findings on rulings not made by the district court.

[00:09:57] Speaker 02:
But I would caution against that.

[00:09:59] Speaker 02:
Judge Timpovich and Colbruno versus Kessler, you talked about

[00:10:02] Speaker 02:
the obvious case and the egregious case.

[00:10:05] Speaker 02:
And you made it very clear that those cases are the exception.

[00:10:09] Speaker 02:
They're the rare case.

[00:10:10] Speaker 02:
It's an exceedingly narrow exception.

[00:10:12] Speaker 02:
Wasn't that a dissent?

[00:10:13] Speaker 02:
Yes, it was, Your Honor.

[00:10:15] Speaker 02:
Yes, it was, Your Honor.

[00:10:15] Speaker 02:
And to be candid, my whole argument today is your dissent in Cabruno, which was that in that case, the majority panel held that Bell v. Wolfish provided clearly established law because the force was found to be punitive.

[00:10:31] Speaker 02:
You and your dissent said, no, that's not the way we look at this.

[00:10:34] Speaker 02:
We look at this, that's too broad of a general proposition in the law.

[00:10:39] Speaker 02:
And Mr. Colbruno failed to come forward with facts that were sufficiently similar to put this officer on notice he was violating the 14th Amendment.

[00:10:46] Speaker 04:
But with respect to my senior colleague, we're stuck with Colbruno, not the majority opinion, not the dissent.

[00:10:55] Speaker 02:
Agreed.

[00:10:56] Speaker 02:
Agreed.

[00:10:56] Speaker 02:
But I would argue that the dissent Colbruno was much more in line

[00:11:00] Speaker 02:
with the Supreme Court's mandate over the last nine years that this court and all circuit courts find cases that are sufficiently similar in nature and don't rely on broad propositions of the law.

[00:11:11] Speaker 02:
How broad can it be to say the force was punitive?

[00:11:15] Speaker 02:
How is any deputy supposed to glean anything from that general proposition of the law in terms of preventing future misconduct?

[00:11:23] Speaker 04:
And so that's the argument here is again, I am not without sympathy to your client But if you look at that video the ink that it strikes you as punitive And it is from a from a man on the street view of it and I and I think the video is

[00:11:40] Speaker 02:
if this case were to proceed to trial, I think with some explanation, with some testimony to support it, with some additional facts.

[00:11:47] Speaker 02:
You're faced with facts, too, that we have to accept here for purposes of today that we don't believe were in dispute, that have been found to be in dispute.

[00:11:55] Speaker 02:
And I think the video can be tempered a bit with some explanation behind it.

[00:12:00] Speaker 02:
But I understand where you're coming from, Your Honor.

[00:12:04] Speaker 02:
I'm at three minutes.

[00:12:05] Speaker 02:
I'd love to reserve that time for rebuttal absent any questions.

[00:12:08] Speaker 02:
You may.

[00:12:08] Speaker 02:
Thank you.

[00:12:09] Speaker 00:
That's the closest I've ever seen someone come to hitting the mark.

[00:12:13] Speaker 03:
It's the best I've ever done.

[00:12:26] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:12:28] Speaker 01:
My name is Omid Azmuta on behalf of the estate of Finn.

[00:12:32] Speaker 01:
On summary judgment, the district court correctly denied qualified immunity to Deputy Gentempo.

[00:12:36] Speaker 01:
After finding that Deputy Gentempo, as we've discussed a little bit this morning, or at least a reasonable jury, could find that Deputy Gentempo punched Mr. Finn twice in the head with a closed fist and then slammed him to the pavement, all while Mr. Finn was handcuffed, shackled at the ankles, and seated in a wheelchair.

[00:12:52] Speaker 01:
The only issue before this court is whether Deputy Gintempo's unconstitutional conduct violated clearly established law, and for two independent reasons this court should affirm.

[00:13:01] Speaker 01:
First, as Judge Phillips was mentioning earlier, the district court made a factual finding that a reasonable jury could conclude that Deputy Gintempo's conduct was punitive in nature.

[00:13:10] Speaker 01:
It was not rationally related to any legitimate government interest, and it was arbitrary.

[00:13:15] Speaker 01:
And under not just Belle v. Woolfish, under Belle, Blackman, Cole Bruno, and a series of similar cases that followed all in this circuit, punitive force violates clearly established law full stop.

[00:13:27] Speaker 01:
And even if the district court didn't make that finding, if this was merely an excessive force case as opposed to punitive, then still, any reasonable officer knows that it is unlawful to pummel a 60-year-old man seated in a wheelchair with his arms and legs tied together.

[00:13:39] Speaker 04:
You agree though that you're now deceased person engaged in dangerous conduct himself, don't you?

[00:13:49] Speaker 01:
I don't know if I could see that it was dangerous, maybe some remote possibility.

[00:13:54] Speaker 04:
Do you want to walk outside and let someone you don't know on the street spit in your mouth?

[00:13:58] Speaker 01:
No, of course not.

[00:13:59] Speaker 04:
You would agree that that would be dangerous for you to engage in that conduct, wouldn't you?

[00:14:04] Speaker 01:
I would posit that it poses some possibly.

[00:14:09] Speaker 01:
Risky conduct?

[00:14:11] Speaker 01:
Risky conduct would be better.

[00:14:12] Speaker 01:
And really, there's a factual finding in this case that I think describes it best, which is unsanitary.

[00:14:17] Speaker 01:
A reasonable jury can conclude that it's unsanitary.

[00:14:20] Speaker 04:
That's a sanitary way of saying it.

[00:14:23] Speaker 01:
I'm going to offer the sanitary way of saying it.

[00:14:27] Speaker 01:
More important is to think about some of these cases, and I'm going to turn to the punitive force issue first.

[00:14:32] Speaker 01:
But if you look at Blackman and you look at Hubbard, which is an unpublished decision that followed, those cases also acknowledge that there's some legitimate government interest out there that exists.

[00:14:43] Speaker 01:
In Blackman, it was preventing an inmate from self-harm.

[00:14:47] Speaker 01:
In Hubbard, it was preventing an inmate from getting into fights with other inmates.

[00:14:51] Speaker 01:
And so the existence of some legitimate interest is not necessarily the end of the analysis.

[00:14:56] Speaker 01:
did here, she acknowledged, spitting is unsanitary, and maybe so.

[00:15:00] Speaker 01:
Maybe it's dangerous, too.

[00:15:02] Speaker 03:
But still... It's an assault.

[00:15:04] Speaker 03:
It could be a criminal assault.

[00:15:05] Speaker 03:
It's battery.

[00:15:07] Speaker 03:
It's, you know, bodily fluids can be, are dangerous, and they, in retrospect, they were dangerous here.

[00:15:15] Speaker 03:
And he, the

[00:15:19] Speaker 03:
He wasn't really subdued in the sense that we care about here.

[00:15:24] Speaker 03:
He was handcuffed, but he didn't have a spit mask on.

[00:15:26] Speaker 03:
So he was still able to engage in this type of wrongful conduct.

[00:15:32] Speaker 03:
And can a reasonable officer halt the conduct?

[00:15:39] Speaker 03:
And it did prevent a second spitting episode.

[00:15:42] Speaker 03:
I mean, I saw the video too, but it halted the misconduct quickly.

[00:15:49] Speaker 03:
You know, what case out there says that an officer can't interrupt an assault through a use of force?

[00:16:00] Speaker 01:
Sure.

[00:16:01] Speaker 01:
So would shooting Mr. Finn.

[00:16:02] Speaker 01:
It would also stop the conduct.

[00:16:03] Speaker 01:
But striking Mr. Finn, punching Mr. Finn, and then slam him to the pavement, according to the district court, which is a factual finding that's outside the jurisdiction of this court's review, was not rationally related to that government interest in stopping the assault.

[00:16:17] Speaker 01:
According to the district court, a reasonable jury could credit that set of facts.

[00:16:20] Speaker 01:
And when that factual finding is made by district court, not only is it unreviewable, but it's dispositive to this appeal.

[00:16:26] Speaker 04:
What if he had grabbed him and put him in a chokehold?

[00:16:31] Speaker 01:
I think it would depend on the type of chokehold, Your Honor.

[00:16:33] Speaker 01:
I think there's a lot of decisions from this case, this circuit, that talk about the various methods that could result in asphyxiation.

[00:16:40] Speaker 01:
So I think that'd be a bad case.

[00:16:42] Speaker 04:
Well, he was spitting on him.

[00:16:44] Speaker 04:
He needed to control his head.

[00:16:46] Speaker 04:
Instead of punching him, he grabbed him and put him in a headlock to keep him from turning his head around toward him.

[00:16:55] Speaker 01:
Headlock still, I think, goes too far.

[00:16:57] Speaker 01:
I think maybe a really close call is what Deputy Gentempo has testified he did throughout this case.

[00:17:03] Speaker 01:
He said that he went forward with an open palm two-handed gesture.

[00:17:08] Speaker 01:
I think if that were actually the facts of this case or a version that a reasonable jury could credit, this case would be much harder.

[00:17:14] Speaker 01:
But there's a significant difference in

[00:17:16] Speaker 01:
an open palm two-handed gesture and a closed fist strike.

[00:17:19] Speaker 01:
I mean, a haymaker.

[00:17:20] Speaker 01:
The video just depicts him sort of loading up on the one side and then unleashing all that he's got.

[00:17:26] Speaker 01:
And I think that's significant.

[00:17:27] Speaker 04:
And I think that played into the district court's finding that this was not... Don't we have to... I mean, even giving to you that we expect our officers to act with some restraints and measured in level of measure.

[00:17:41] Speaker 04:
I mean, this happened very quickly.

[00:17:46] Speaker 04:
He was spit upon and he could have either been spit upon again or done something about it.

[00:17:52] Speaker 04:
And he acted quickly and maybe he overreacted, but don't we have to give some grace for that?

[00:17:57] Speaker 01:
Not in this circumstance, because I think he overreacted in a sense that he acted off of rage.

[00:18:03] Speaker 01:
And that's the most intuitive view of this evidence and it's certainly one that a reasonable jury could credit.

[00:18:07] Speaker 01:
He took quick, dignitary offense to what happened to him and he decided to retaliate with pain.

[00:18:13] Speaker 01:
And that's just simply not a tool that's available to our officers.

[00:18:16] Speaker 01:
I think if you saw this in a bar fight,

[00:18:19] Speaker 01:
you'd assume the same thing.

[00:18:20] Speaker 01:
If one person spit on another in a bar and the other person loaded back and unleashed a haymaker, you'd say that wasn't because that guy wanted to get controlled after having been spit on, it was because he took offense and decided to retaliate with pain.

[00:18:33] Speaker 01:
Under Blackman, Cole Bruno, Knighton, Bloom, Hubbard, and probably more, that tool is simply not available to our officers.

[00:18:40] Speaker 01:
We hold them to a higher standard.

[00:18:42] Speaker 01:
And I would highlight Bloom and Hubbard in particular.

[00:18:45] Speaker 01:
They're cited at page 16 of the response.

[00:18:48] Speaker 01:
Those cases are procedurally identical to this one in which a district court made a factual finding that there was punitive force, regardless of whether the district court, the evidence might point in more than one direction, which I think is what the conversation this morning has revolved around.

[00:19:02] Speaker 01:
This court doesn't get to decide which way that evidence points.

[00:19:06] Speaker 01:
That's for the district court and then ultimately a jury.

[00:19:09] Speaker 01:
And in both Bloom and Hubbard, the court accepted that finding and said,

[00:19:12] Speaker 01:
Panels from this court said it's not our job.

[00:19:15] Speaker 01:
If that finding has been made, then there's a violation of clearly established law and this case goes to trial, which is what should happen here.

[00:19:23] Speaker 03:
Would you think this case would be different if the officers knew he had hepatitis or COVID?

[00:19:34] Speaker 01:
Maybe, Your Honor.

[00:19:37] Speaker 01:
If you look at the Colorado statute, there's varying degrees of assault or battery based on the actual conduct that's proved.

[00:19:45] Speaker 01:
And the statute that's cited throughout the briefs, the elements of it include it is assault if you cause spit to go on a peace officer with the intent to annoy or harass, annoy or alarm.

[00:19:58] Speaker 03:
Is that what he was charged with?

[00:20:00] Speaker 01:
Don't recall, Your Honor.

[00:20:01] Speaker 01:
Don't quote me on exactly what he was charging.

[00:20:03] Speaker 01:
But that's the statute cited in the briefs.

[00:20:06] Speaker 01:
So I would assume so.

[00:20:08] Speaker 01:
But I think there would need to be a factual showing of what he intended to do before we could conclude that this guy had in the state of his mind, I'm going to infect this officer with hepatitis C. And a related point.

[00:20:23] Speaker 01:
There's not been any expert testimony at Proffert below that hepatitis C can be transferred via saliva.

[00:20:28] Speaker 01:
I don't think that a jury could come to that conclusion on their own without some support.

[00:20:32] Speaker 01:
In fact, we would probably file a motion to eliminate, to exclude those types of arguments.

[00:20:37] Speaker 04:
Wouldn't you be looking at the officer's state of mind, though?

[00:20:41] Speaker 04:
I mean, I don't want to speak for anyone else, but I don't know whether it causes it or not, but I don't want to try it.

[00:20:53] Speaker 04:
Isn't the officer's subjective belief mean anything here?

[00:21:01] Speaker 01:
I don't think so.

[00:21:04] Speaker 01:
Do you have a case to that effect?

[00:21:09] Speaker 01:
No.

[00:21:10] Speaker 01:
I think all of the cases on excessive imputative force are about objective reasonableness and objective circumstances.

[00:21:19] Speaker 01:
But what I will offer about the subject effect of this case is that

[00:21:23] Speaker 00:
deputant tempo did not know that fact that he had hepatitis C. So the stipulated fact that the spit hit him in the face?

[00:21:31] Speaker 00:
Yes, your honor.

[00:21:32] Speaker 00:
Okay, that's conceded.

[00:21:33] Speaker 00:
Yes.

[00:21:35] Speaker 01:
As I was discussing, there's just too many cases from this panel to even list all of them, from the circuit to even list all of them that make clear that punitive force violates clearly established law.

[00:21:49] Speaker 01:
And there was a point that the district court did not make the finding on clearly established law on that line.

[00:21:58] Speaker 01:
Just to alert the court, it was preserved.

[00:22:00] Speaker 01:
We made the argument at Appendix 144 in our response to summary judgment.

[00:22:05] Speaker 01:
And we think that that's actually the easiest way for this court to resolve this appeal.

[00:22:12] Speaker 01:
But even if Deputy Gentempo's force was merely excessive as opposed to punitive in nature,

[00:22:19] Speaker 01:
then we're not going on a scavenger hunt.

[00:22:21] Speaker 01:
We're looking for materially similar cases or those that apply with obvious clarity, such that Deputy DiTempo had fair notice that his conduct was unlawful.

[00:22:29] Speaker 01:
We rely on the cases that Judge Simcovich mentioned earlier, McCoy, Morris, Graham, and several others that draw a clear line, that once an individual is restrained, meaning in handcuffs and shackled and seated in a wheelchair, the use of significant force, punches, forceful takedowns, and certainly the combination are clearly unlawful.

[00:22:48] Speaker 01:
McCoy describes being restrained as the decisive factual circumstance.

[00:22:52] Speaker 03:
Wasn't he also unconscious and unresponsive in the facts of that case?

[00:22:58] Speaker 01:
In McCoy?

[00:22:58] Speaker 01:
Yeah.

[00:22:59] Speaker 01:
Yes, sir.

[00:23:01] Speaker 03:
That seems a big difference.

[00:23:03] Speaker 01:
Maybe so.

[00:23:03] Speaker 01:
I think some of the other cases in which, including I'd say Casey is probably close to, it's not dispositive whether the

[00:23:14] Speaker 01:
the arrestee or the detainee was unconscious.

[00:23:16] Speaker 01:
I think having restraints is qualitatively important, an analysis of whether the significant force is appropriate.

[00:23:23] Speaker 03:
He wasn't really restrained.

[00:23:27] Speaker 03:
The portion of his body that he used for the assault was not effectively restrained or subdued, was it?

[00:23:34] Speaker 01:
No, Your Honor.

[00:23:35] Speaker 01:
But he wasn't restrained either from cursing at the officers.

[00:23:38] Speaker 01:
And I think what's important is all of these cases are indicating that there's something qualitatively important about when your hands and legs are tied together.

[00:23:47] Speaker 01:
And when that line is passed, the use of substantial force is unavailable to officers.

[00:23:54] Speaker 01:
And even if

[00:23:56] Speaker 01:
You don't agree that those cases are materially similar.

[00:23:58] Speaker 01:
Maybe they pose some differences in the level of the force used or in the level of the threat that's posed by the detainee or arrestee, if any.

[00:24:11] Speaker 01:
This case strikes us as an obviously unlawful one, as the excessive force being so obviously unlawful that

[00:24:19] Speaker 01:
that it should be found to have violated clearly established law.

[00:24:22] Speaker 01:
And I think one way to think about that is Kingsley encourages us to think about whether the officer made any effort to temper the use of force.

[00:24:31] Speaker 01:
There's none here.

[00:24:32] Speaker 03:
It was impulsive.

[00:24:33] Speaker 03:
I mean, it was immediate.

[00:24:35] Speaker 03:
I don't think there was a lot of thought that went into it.

[00:24:38] Speaker 03:
It was a knee-jerk reaction to what happened.

[00:24:42] Speaker 01:
Precisely, Your Honor.

[00:24:43] Speaker 01:
And we ask our officers to be better than make impulsive decisions, and on the one hand, decide quickly to punish an inmate through pain, or on the other hand, decide quickly to use excessive force against him.

[00:24:55] Speaker 03:
Well, qualified immunity doesn't let us do the 2020 hindsight review, which there's some play in the joints there for conduct that, in retrospect, was undesirable, but in the heat of the moment, understandable.

[00:25:12] Speaker 01:
Maybe so, Your Honor, but obviously there's a concept in this area in which we have to defer some to officers.

[00:25:20] Speaker 01:
But I think this is not the case in which we have to say that it was such a close call that we're going to give him the benefit of the doubt.

[00:25:29] Speaker 04:
Isn't this the kind of case where you do have a, I mean, it seems to me more difference goes where there are split-second reactions that take place.

[00:25:40] Speaker 04:
You've got someone spitting multiple times.

[00:25:44] Speaker 04:
He spits in the officer's face.

[00:25:49] Speaker 04:
It requires a quick reaction.

[00:25:52] Speaker 04:
Quick reactions are not well thought out generally.

[00:25:54] Speaker 04:
That would seem to counsel for giving the officer some benefit of the doubt.

[00:26:01] Speaker 01:
It was a quick reaction, Your Honor, because he decided it was going to be a quick reaction.

[00:26:04] Speaker 04:
He had alternatives.

[00:26:05] Speaker 04:
I guess he could have stayed there and let the guy spit in his face again.

[00:26:09] Speaker 01:
No, he could have walked away and retrieved the spit.

[00:26:11] Speaker 04:
That would have been a quick reaction to either way.

[00:26:14] Speaker 04:
It was a quick reaction, but he was going to have to, he was going to react and we don't like the way you reacted, but it doesn't take away the fact that it was a quick reaction and called for a quick reaction.

[00:26:26] Speaker 01:
I don't think it called for a quick reaction.

[00:26:27] Speaker 04:
He spit on the ground.

[00:26:29] Speaker 04:
He turned his head.

[00:26:30] Speaker 04:
He spit in his face.

[00:26:32] Speaker 04:
I mean, what, why do we believe he wasn't going to in quick succession spit again at him?

[00:26:40] Speaker 01:
It's possible.

[00:26:42] Speaker 01:
There's not really any evidence that that would have happened because by the time that could have happened, Deputy Jimbo was already delivering two close-fit strikes to the head.

[00:26:49] Speaker 01:
He indeed did.

[00:26:51] Speaker 01:
But I think maybe the other factual point that's important is that before the spitting,

[00:26:59] Speaker 01:
There's these allegations that Mr. Finn was belligerent and causing such a storm that he was a threat.

[00:27:06] Speaker 01:
Well, first off, the decisive factual circumstance from McCoy was true, handcuffed and shackled.

[00:27:11] Speaker 01:
Second off, the rest of the videos show Mr. Finn gladly standing up out of the gurney from the hospital inside Denver Health, accepting a new set of handcuffs, seated in the wheelchair, letting two deputies sort of roll him down the Denver rim.

[00:27:23] Speaker 01:
So all we're really talking about is one instance of spitting.

[00:27:25] Speaker 01:
And when that happens,

[00:27:27] Speaker 01:
It's our position that Deputy Gintempo had more options.

[00:27:29] Speaker 01:
I see that my time is up.

[00:27:30] Speaker 01:
If I could just conclude briefly.

[00:27:33] Speaker 01:
Deputy Gintempo violated Mr. Finn's 14th Amendment right in two ways, by punishing him and by engaging in excessive force, because both ways were a violation of clearly established rights.

[00:27:43] Speaker 01:
This court should affirm the district court's denial of qualified immunity.

[00:27:47] Speaker 03:
All right.

[00:27:47] Speaker 03:
Thank you, counsel.

[00:27:48] Speaker 03:
Mr. Ziporn had three minutes and one second.

[00:27:58] Speaker 02:
Thank you, Your Honors.

[00:27:59] Speaker 02:
I want to, again, say I'm not here to argue facts, but I can't help myself.

[00:28:07] Speaker 02:
Based on your questioning, Judge Carson, about wouldn't it be reasonable for him to expect another spit?

[00:28:13] Speaker 02:
Well, in fact, there is record evidence of a third spit.

[00:28:17] Speaker 02:
After the first, he spits on the ground.

[00:28:20] Speaker 02:
He's told not to spit.

[00:28:21] Speaker 02:
He spits in his face.

[00:28:22] Speaker 02:
Then he spits a third time in his face going into his mouth, which was then, according to my client, what precipitated the strike.

[00:28:28] Speaker 02:
Now, Judge Sweeney resolved that fact against us, finding it to be in dispute.

[00:28:32] Speaker 02:
The other side argued, based on the video, Mr. Finn appeared to be pulling his blanket up, which based on their argument, that she accepted he could not have possibly split a third time.

[00:28:42] Speaker 02:
But I just want to reflect that.

[00:28:44] Speaker 02:
So we only have two spits.

[00:28:45] Speaker 02:
So in this case, for purposes of today, only two spits.

[00:28:49] Speaker 02:
The other suggestion that my colleague made here is that the district court's determination that the force was punitive was a fact-finding.

[00:28:57] Speaker 02:
I take issue with that.

[00:28:59] Speaker 02:
I think the court's determination that the force was punitive was a question of law, much like finding the force to be objectively reasonable would be a question of law.

[00:29:08] Speaker 02:
It's those facts that supported Judge Sweeney's decision that it was punitive, which are not in dispute, which were fact finding.

[00:29:16] Speaker 02:
But the issue itself in terms of whether or not the force was punitive is not a fact.

[00:29:20] Speaker 02:
It's a question of law.

[00:29:21] Speaker 04:
So based on the same facts we determined that it was punitive,

[00:29:28] Speaker 02:
You lose.

[00:29:29] Speaker 02:
No, because we still have, in my argument today, is we still have to find a case that's clearly established that would have put my officer on notice.

[00:29:36] Speaker 04:
That if he took punitive action, he might be okay?

[00:29:42] Speaker 02:
Yes, that if he took punitive action that's prohibited by Bell v. Wolfish, which we concede, of course, but that's too general a broad proposition of the law.

[00:29:52] Speaker 02:
Just like Graham versus Connor would be too broad of a proposition of the law to find the force if it was objectively not reasonable.

[00:29:58] Speaker 04:
So what's your best authority if there's punitive action, stated otherwise in action, not having any relation to a legitimate penological interest?

[00:30:15] Speaker 04:
What's your best case there that would say, well, that wasn't clear enough, so there's going to be qualified immunity?

[00:30:22] Speaker 02:
My best argument is the lack of the case.

[00:30:24] Speaker 02:
There's a lack of a case from the US Supreme Court that says Bell v. Wolfish is sufficient to establish the law to be clearly established in a 14th Amendment pretrial detainee case.

[00:30:35] Speaker 02:
The Supreme Court has regularly said Graham v. Connor is too high a level of generality in a use of force case.

[00:30:42] Speaker 02:
Why shouldn't that same rationale and mandate be applied in cases involving the 14th Amendment and excessive force cases brought by pretrial detainees?

[00:30:51] Speaker 00:
I see your point on that, but are there cases that make that distinction, or is that you asking us to make that distinction for the first time?

[00:30:59] Speaker 02:
Well, I'm asking you to follow the US Supreme Court mandate on that.

[00:31:04] Speaker 02:
I'm not aware of a 10-circuit case that says Belvos versus Wolfish is not enough.

[00:31:09] Speaker 02:
But I think this court has the opportunity to do that, because it's been told multiple times by the US Supreme Court that's what it has to do.

[00:31:17] Speaker 03:
Thank you very much.

[00:31:18] Speaker 03:
Your time's expired.

[00:31:19] Speaker 03:
Council are excused and the case is submitted.

[00:31:21] Speaker 03:
Thanks for the arguments.

[00:31:23] Speaker 03:
And we'll take a short recess before the last case.